IV. FOREIGN CODES.

HAVING traced the progress and ascertained the present state of our own laws, I shall now, in accordance with the course laid down at the commencement of this essay, direct attention to the recent codes of some of the modern states of Europe and America, with reference to the subject under consideration.

There is, however, a body of penal laws, not falling under this description, but which it would be an omission to leave unnoticed, especially as those provisions have been referred to in the parliamentary debates on the particular subject of this essay. I allude to the laws of the Emperor Charles V.

By the criminal code of the Emperor, composed of decrees made at the Diet of Augsburg in 1530, and of Ratisbon in 1532, the abduction of a married woman, or of a chaste girl, against the will of the husband or father, although the abduction was with the consent of the wife or girl, was punished capitally, as was also (it is scarcely necessary to observe) the crime of rape (viol), as well as attempts to commit that offence.

The prostitution of wives and of children, by their husbands or parents, was also punished capitally, if proved to be done for lucre; but if not so proved, or if the child was a willing instrument, then the punishment was arbitrary.

Those who were guilty of fraud in procuring girls to commit prostitution, or who let their houses for that purpose, were punished with banishment, exposure in the pillory, whipping, and even with loss of their

Of the countries whose laws have recently undergone revision, the one entitled to prior consideration, as well on account of its position, as by reason of its code of laws having influenced most of those about to be noticed, is France.

* The following is the article of the code relating to this crime as translated by Vogel, from which it will be seen that not only innocent girls, but those whose own imprudence led them into the loss of their honour, were within its protection:-"Comme il arrive souvent, que des personnes du sexe par leur imprudence et même des filles innocentes, qui d'ailleurs sont sans reproche, se laissent induire au libertinage, et à la perte de leur honneur, par les ruses de quelques hommes et femmes de mauvaise vie: Nous ordonnons, que ceux ou celles qui emploïeront un artifice aussi infâme, ou qui avec connoissance de cause et de danger loueront leur maison à cet usage honteux, et souffriront qu'il se pratique chez eux, soient punis par le bannissement, l'exposition au curcan, l'amputation des oreilles, la fustigation, ou autres punitions exemplaires, suivant l'exigence des cas, et sur l'avis des gens de loi." (Vogel, Code Criminel de l'Empereur Charles V. art. 118. à 123.; edit. Brienne, 8vo. 1777.)

By the Code Pénal, the punishment for rape (viol) is solitary imprisonment. Before the Revolution of 1789, this crime was capital. The National Assembly modified it to six years' imprisonment in irons, and the Code Pénal adopts the spirit of that amelioration.* Any other attack upon modesty (attentat à la pudeur) consummated or attempted (consommé ou tenté) with violence, is classed with rape, and punishable in the

same manner.

The nature of the imprisonment for these offences depends on the circumstances under which they are committed, both as regards the criminal and the victim. If committed upon an infant under the age of fifteen years, the imprisonment is with hard labour. If the offenders are of the class of those having authority over the person against whom the crime is committed-if they are the instructors or the hired servants of such person, or if they are public officers or ministers of religion, or if the culprit, whoever he may be, has been assisted in the commission of the crime by one or more accomplices, the hard labour is perpetual. †

This distinction with respect to the position of the parties, and increasing the punishment where the

* Rapport par M. Nouailles sur la loi contenant le chap. iii. du titre i. du livre iii. du Code des Délits et des Peines. (Code Pénal suivi de l'Exposé des Motifs présenté par les orateurs du Governement, &c., Paris, 1810-12, tom. ii. p. 224.)

† Code Pénal, liv. iii. tit. 2. ch. 1. s. 4.

offender from his position should be particularly guarded in his conduct, either from his being brought into close contact with his victims, or from occupying a public station, was a new feature in the laws of France and had escaped the digesters of the code of 1791.*

The law makes some provision for the offence of abduction.

Whoever by fraud or violence steals (enlevé) or causes to be stolen any minors (that is to say, children of either sex under the age of twenty-one), or carries off, inveigles away, or removes them (entraînés, detournés, ou déplacés), or causes them to be carried off, inveigled away, or removed from wherever they were placed by those having authority for that purpose, is liable to solitary imprisonment. If the person thus stolen or inveigled away is a girl under sixteen, hard labour is imposed, and this although she was a consenting party to her abduction, or followed the offender, provided he be twenty-one years of age. If he is under that age, then his punishment is imprisonment for a period varying from two to five years.

If he has married the girl whom he carried off, he can only be prosecuted upon the complaint of those

*

Rapport par M. Nouailles already cited. It is to be observed that these provisions apply to offences committed against both

sexes,

L

who, by virtue of the provisions of the Code Napoleon (Code Civil), have the right to require such marriage to be declared void, and he cannot be punished until after such marriage is declared void *; the law considering the offence abated where the best reparation of which it is susceptible has been made.†

No provision is, therefore, expressly made by the present laws of France for the crime which the Romans assimilated to rape with violence, and which was formerly severely punished in France under the name of "Rapt de séduction."

The National Assembly effaced abductions for the purposes of seduction from the list of crimes. It only provided for the abduction of a girl under fourteen, committed with violence, and for the purpose of abusing or prostituting her.‡

The Code Pénal, as will be perceived, makes the crime to consist solely in the fact of abduction. It extends by two years the period to which females are placed under the special safeguard of the law; and it reaches not only the abductor who employs force, but him also who employs deceit and fraud, including, therefore, the use of threats, potions, stupefying liquors, or other means, in attaining his object. With respect to girls under sixteen, it is immaterial whether any artifice

* Code Pénal, liv. iii. tit. 2. ch. 1. s. 6.

+Rapport par M. Nouailles.

Code Criminel et Correctionel du 6me Octobre, 1791.