Again, by virtue of the forfeiture of what is called his personal property, the following denominations of persons are made to suffer :

I. His wife by being deprived of whatever she would have been entitled to under his will, or under the law of distributions.

II. His children, or others next of kin by losing what they might, in the same manner, have become entitled to.

III. His creditors: by losing all claim upon his personal estate. By this forfeiture, added to what takes place in the case of real estate, all his creditors whatever are defrauded; such only excepted as may have been fortunate enough to have obtained a real security previous to the commission of the offence.

FELONY WITHIN CLERGY.

We now come to felony within clergy. The mass of punishments included within this title, are much less various as well as less severe.

Of punishments in propriam personam, it includes only the first and third of those which are included under the other species of felony.

In the room of the fifth and last punishment, the punishment of death, there is one that takes place, or rather is said to take place, of course. I mean, marking in the hand others there are, which, besides the former, take place optionally, at the discretion of the judge; conjunctively, with respect to the three former; disjunctively, with respect to one another.

This punishment of marking is now become a farce. It is supposed to be inflicted in open court, immediately after the convict, in order to exempt himself from the punishment of the other felony, has been made, if a woman, to plead

1 4 Hen. VII. c. 13.

the statute; if a man, to tell the solemn lie that he is a clerk. The mark to be inflicted is, according to the statute, to be the letter F, unless the offence be murder, in which case it is to be an M; murder, at that time, not as yet having been taken out of the benefit of clergy; as it has, however, since, the mark ought now to be that of an F in all cases. The part to be marked is the brawn of the left thumb, so that if a man happens to have lost his left thumb, he cannot be marked at all; or, if afterwards he chooses to cut it off, he may prevent its answering the purpose it was meant to answer, that of distinguishing him from other men.

The instrument originally employed was a heated iron with a stamp upon it of the shape of the letter to be marked.

To the judges of that time, this was the only expedient that occurred, for marking upon the human skin such a mark as should be indelible. At present the practice is to apply the iron, but it is always cold: this is what is called burning with a cold iron; that is burning with an iron that does not burn; in consequence no mark at all is made. The judge presides at this solemn farce; by no one is it complained of; by many, it is approved; it is mildness, humanity it is true, that the law is eluded, and turned into ridicule but the judge spares himself the pain of hearing the cries of a man, to whose flesh a red hot iron is applied. It may be asked, why do not the judges propose that the law should be made conformable to the practice? I cannot tell.

The judge that first disregarded the statute was guilty of the assumption of illegal power: he who should now have the courage to obey it, might now affix the prescribed mark without putting the delinquent to any particular pain.'

The statute directs that the convict shall be "marked;" the mode of marking is left altogether to the judge. The author of the Commentaries (4 Comm. p. 367, ed. 1809) says, "burnt with a hot iron." It is plain by this that he had never read the statute: for the statute, which is a very short one, says not a syllable about burning, or about a hot iron.

The other punishments, which in all cases of felony within clergy may, at the discretion of the judge, be superadded or not to those which we have seen, are those of imprisonment and transportation.

For the second offence of a clergyable felony, capital felony is the punishment.'

2

Clerks in orders are alone exempted: peers are not: women are expressly subjected to it. It is certainly a distinction highly honorable to the clergy that they may go on pilfering, while other people are hanged for it.

Why a man having been punished for one act of delinquency, should be punished more than ordinarily for a second act of the same species of delinquency, or even for any other offence of the same species of delinquency, there is at least an obvious if not a conclusive reason. But why when a man has been punished by a certain mode of punishment, and then commits an offence as different as any offence can be from the former, the punishment for this second offence is, because it happens to be the same with that for the first, to be changed into a punishment altogether different, and beyond comparison more penal, is what it will not, I believe, be easy to say. Is it because the first mode of punishment having been tried upon a man, the next above it, in point of severity, is that of capital felony? That is not the case: for præmunire is greatly more penal than clergyable felony. I mention this as being impossible to justify, not as being difficult to account for, since nothing better could consistently be expected from the discernment of those early times.

There is one thing which a clergyable felon does not forfeit, and which every other delinquent would forfeit for the

1 4 Hen. VIIth, c. 13.

2

By 4 Hen. VIIth, c. 13, repealed in effect quoad hoc, by 28 Hen. VIIth, c. 1, and 32 Hen. VIIIth, c. 3: and revived in effect quoad hoc by 1 Ed. VIth, c. 12, p. 10.

most venial peccadillo-and that is reputation. I mean that special share of negative reputation which consists in a man's not being looked upon as having been guilty of such an offence. This share of reputation, the law, in the single instance of clergyable felony, protects in a delinquent, in so far forth as it is in the power of law, by brute violence, to counteract the force of the most rational and salutary propensities. If a man has stolen twelve-pence, and been convicted of it, call him a thief and welcome. But if he had stolen but eleven-pence-halfpenny, and been convicted of it, and punished as a felon, call him a thief and the law will punish you. This has been solemnly adjudged.

I say convicted and punished as a felon : for if he has not been convicted of it, in virtue of the general rule in case of verbal defamation, you may call him so if you can prove it; but when the law, by a solemn and exemplary act, has put the matter out of doubt, then you must not mention it. Would any one suspect the reason? It is because the statute which allows the benefit of clergy operates as a pardon. It has the virtue to make that not to have been done which has been done: and it was accordingly observed, that a man could no more call another thief who had been punished for it in this way (thief say they in the present time), than say he hath a shameful disease, when he had had it, and has been cured of it.'

It is there also said, with somewhat more color of reason, though in despite of the last mentioned rule, "that there is no necessity or use of slanderous words to be allowed to ignorants," and that though the arresting of a pardoned felon, by one who knows not of the pardon, may be justifiable, because this is in "advancement of justice; yet so it is not to call him thief, because that is neither necessary, nor advanceth nor tends to justice." He who said this knew

not, or did not choose to know, how mighty is the force and how salutary the influence of the moral sanction: how much it contributes to support, and in what a number of important instances it serves to control the caprices and supply the defects of the political. It was perhaps sir Edward Coke: a man who from principle was a determined enemy, though from ill humor, upon occasion, an inconsistent and unsteady friend, to political liberty: who in his favorite case, de libellis famosis, has destroyed, as far as was in his power to destroy, the safeguard of all other liberties, that of the press proscribing all criticism of public acts; silencing all history; and vying in the extent of his anathemas with the extravagance of the most jealous of the Roman emperors.

ART. VII.-PROJECT OF A PENAL CODE FOR INDIA.

A Penal Code prepared by the Indian Law Commissioners, and published by command of the Governor General of India in Council. Calcutta: printed at the Bengal Military Orphan Press, by G. H. Huttman, 1837.

THIS code is the first fruits of the India Law Commission, instituted, we believe, in 1835. It is worthy of attention, in two points of view; as a work of legislation or lawmaking, strictly so called; and as a work of codification, or the redaction of law, whether new or already existing, in an orderly and systematic form. In the first point of view, it is, of course, more interesting to the people whom it is to govern than to any others; and, in the second, it demands the attention of those, in all countries, who are engaged in the work of law reform. It is in the last point of view only that we propose to examine it.

The Indian penal code is not a redaction of existing law,