It has been doubted, however, whether the severity of the punishment of a crime so unnatural, as even to appear incredible, does not defeat the object of destroying it, by rendering it difficult to convict an offender.
The same objection has been made with respect to the crime of committing a Rape. A proper tenderness for life makes the Law require a strong evidence, and of course the proof is nice and difficult; whereas, were the punishment more mild, it might be more efficacious in preventing the violation of chastity.
By the Law of Egypt, Rapes were punished by cutting off the offending parts;—The Athenian Laws compelled the ravisher of a virgin to marry her. It was long before this offence was punished capitally by the Roman Law: but at length the Lex Julia inflicted the pains of death on the Ravisher.—The Jewish Law also punished this crime with death; but if a virgin was deflowered without force, the offender was obliged to pay a fine, and marry the woman.
By the 18th of Elizabeth, cap. 7, this offence was made Felony without Benefit of Clergy.
It is certainly of a very heinous nature, and, if tolerated, would be subversive of all order and morality; yet it may still be questioned, how far it is either useful or politic to punish it with death; and is worth considering, whether, well knowing that it originates in the irregular and inordinate gratification of unruly appetite, the injury to Society may not be repaired without destroying the offender.
In most cases, this injury might be repaired by compelling (where it could be done with propriety,) the criminal to marry the injured party; and it would be well for Society, if the same rule extended not only to all forcible violations of chastity, but even to instances of premeditated and systematic Seduction.
In cases, however, where marriage could not take place, on account of legal disability, or refusal on the part of the woman, the criminal ought to be severely punished, by pecuniary damages to the party injured, and by hard labour and confinement, or transportation for life.
The offence considered as next in point of enormity to Rape, is Forcible Marriage, or Defilement of Women: but it is somewhat remarkable, that by confining the punishment to offences against women of estate only, the moral principles are made to yield to political considerations; and the security of property in this instance, is deemed more essential, than the preservation of female chastity.
In short, the property of the woman is the measure of the crime; the statutes of the 3d of Henry the Seventh, cap. 2. and the 39th of Elizabeth, cap. 9, making it Felony without Benefit of Clergy, to take away, for lucre, any woman having lands or goods, or being an heir apparent to an estate, by force, or against her will, and to marry or to defile her. The forcible marriage and defilement of a woman without an estate is not punished at all; although, according to every principle of morality and reason, it is as criminal as the other. It is indeed an offence not so likely to be committed.
However, it seems in every point of view, impolitic to punish such offences with death; it might be enough, to expiate the crime by alienating the estate from the husband—vesting it in the wife alone, and confining him to hard labour; or by punishing the delinquent, in very atrocious cases, by transportation.