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CHAPTER VIII.

THE

ND

THE LAW OF RAPE, SEDUCTION, AND

BASTARDY.

THE law of Moses was, in the strictest and most proper and original sense of the term, a penal law; providing for every offence an appropriate punishment, and for every injury a suitable redress, compensation, or equivalent. This character of the Jewish law is distinctly seen in the various judg. ments which it pronounces on the several violations of the law which regulates the intercourse of the sexes. The adulterer and the adulteress, upon conviction, are condemned to death ; and the waters of jealousy are appointed for the trial of the woman that is suspected of adultery, and their operation is suspended when the husband himself is guilty of the crime. If a woman betrothed is violated, she and the ravisher are capitally punished, if the crime is committed in the city, where the woman might obtain assistance; otherwise the man only is pu. nished, and the woman is discharged, because she had no means of defence. If a woman not betrothed is seduced by persuasion, the seducer is bound to endow and marry her, unless her father should refuse his consent, when he is required to pay the amount of her dower: if he violated her without her consent, he was bound to pay a stipulated sum to her father, and to marry her without possessing the common

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privilege of divorcing her at a future time. The laws of seduction and rape are thus delivered by Moses :

If a man entice, seduce, or deceive by persuasion, a maid that is not betrothed, and lie with her, he shall surely endow her to be bis wife: if her father utterly refuse to give her unto him, he shall pay money according to the dowry of virgins".

If a man hud a dansel that is a virgin, which is not betrothed, and lay l:old on her and violate her, and lie with her, and they be found, then the man that lay with her shall give unto the damsel's father fifty shekels of silver, and she shall be his wife, because he hath humbled her; he inay not put her away all bis days

From this exhibition it will be easy to form an opinion of the different purposes of the two laws, and to appreciate the subtlety of Jewish commentators in explaining and applying them.

It is a just distinction which the commentators have made between these laws, interpreting the former of an act of seduction, the latter of an act of ravishment. It is also justly maintained that the ravisher is bound to marry the woman whom he has violated; but there is a gratuitous interpolation of the law in the hypothetical condition which they annex, if she and her father shall consent. The obligation to marry is an act of compensation to the injured woman, which it is not supposed that she will refuse: the injury to the father is compensated by the fine of fifty shekels, which was paid either in

* Exod. xxii. 16.

Deut. xxii. 28, 29.

addition to the dower, as a penalty for the offence, or as is less probable, in lieu of the dower, without which the ravisher would pay no pecuniary mulct, and the condition of ravished women would be worse than that of other women, but which, as it has been conceived, was not necessary for the maintenance of the woman, nor required as a motive to induce the husband not to put her away, since he had not at any time the liberty of divorcing her. The humane and considerate reason for which he was obliged to marry her, was, that he had humbled her; and the law admitted no exception of personal defects or infirmities, and was in force even though the woman should be blind, or lame, or leprous, and prevented the husband from putting her away at any time or under any circunstances. The Jewish doctors, however, understood the necessity of mar. riage, of a marriage which was not unlawful, nor interdicted by any law of incest: and to the stipulated fine, which was unalterable, they added other arbitrary, fines, in compensation for the shame and dishonour, and any peculiar injury which the woman might sustain, of which the amount varied according to her age, quality, and condition of life,

In the case of seduction, of which the former law is interpreted, the seducer was required to endow the seduced to be his wife, which has been explained of giving her such a dowry, that she might be his Jawful wife. The Jewish doctors affirm (and the ambiguity of the authorized version agrees with their affirmation) that he was not commanded to marry

Patrick and Ainsworth in loc. Ux. Ebr. I, i. c. 16.

her, although they admit it to be best that he should marry her, but only that he is required to make satisfaction for the injury which the woman has received, by paying so much in the nature of a dower, as would render her fit to be his wife if they should agree: but if either the man or the woman, or the woman's father, should refuse the marriage, and the Jews allege that it was in the power of any of them to refuse it, they suppose that the offender paid, in the nature of a mulct or fine to her father, the amount of a virgin's dowry, which was fifty shekels. According to the more ancient trans. lations, however, the seducer was required, in the redundant and strongest form of Jewish expression, to endow the woman with a dower, and take her to be his wife : and the assumed right of the man to refuse her, appears to have been a mere invention of the Rabbins. The law gives the right of refusal to none but the father; and if he shall exercise that right, the man shall in that case pay money according to the dower of virgins. This interpretation is the most obvious and literal, and is supported by the authority of Josephus; who, in adverting to this law, unless he be supposed to have combined the two laws of seduction and rape, says, Let the seducer of a virgin marry her: but if her father shall refuse to give her, let him pay fifty shekels the price

Patrick and Ainsworth in loc. Ux. Ebr. I. i. c. 16. · LXX. Piemn Pagris aut avtu yuvano. Bishop's Bible: He shall endow her and take her to his wife. Ainsworth: Endowing he shall endowe her to himselfe to wife: Tremell. et Junii. Omnino constituens ei dotem accipiat eam in uxorem: adding in the margin, Heb. dotando dotans.

of the injuryf. If the father consented, and the marriage was concluded, the dower was paid, but the fine was not demanded.

These equitable provisions of the Mosaic law for the punishment of seduction and rape have not been always neglected in the laws of human enactment. By the law of Solon, rape was punished with a fine of one hundred drachmæ, afterwards increased to one thousand; and the ravisher was compelled to marry the woman. By the Julian law, with the accustomed rigour of Roman legislation, it was pronounced a capital offence: and under the civil law, which comprehended in this name the forcible abduction of women, and the forcible violation of their persons, it incurred a penalty of death and confiscation of goods. The law of Constantine condemned the ravisher to the flames; and although Constantius mitigated the severity of that law, he only substituted another mode of death, and made no alteration of the law in the case of a slave. Jovian also made it a capital offence to ravish a consecrated virgin, or even to solicit her in marriage against the rules of her profession. · The Church, which could not inflict the temporal punishment, renewed the more lenient judgments of the Jewish law, which she enforced with a sentence of excommunication. It is one of the Apostolical Canons, as they are called ; If any man offers violence to a virgin not betrothed, let him be excommunicated ; and he shall not be permitted to take any other wife, but shall keep pos

Ux. Ebr. 1. i. c. 16.

'Ant. Jud. I. iv. c. 8, s. 23. - 4 BỊ. Com. c. 15. VOL. II.

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