18. Bigamy is a person's entering into the engagement of a second marriage, in violation of a former marriage vow still subsisting. Bigamy, on the part of the man, has been tolerated in many states before the establishment of Christianity, even by the Jews themselves ; but it is pro hibited by the precepts of the Gospel, and is punished by our law, whether on the part of the man or of the woman, with the pains of perjury, 1551, c. 19.
19. Incest is committed by persons who stand within the degrees of kindred forbidden in Lev. xviii. and it is pu nished capitally by 1567, c. 14. The same degrees are prohibited in affinity as in consanguinity, Lev. xviii. 14, et seq. As this crime is repugnant to nature itself, it is an ill-founded opinion that incest cannot be committed but between persons born in lawful marriage ; for, in questions of the law of nature, all children, whether lawful or natu ral, stand on an equal footing : Civilis ratio civilia jury cor rumpere potest, non vere naturalia. It is difficult, indeed, to bring a legal proof of a relation merely natural on the side of the father ; but the mother may be certainly known without marriage.
20. There is no explicit statute making rape, or the ra vishing of women, capital ; but it is plainly supposed in act 1612, c. 4. by which the ravisher is exempted from the_ pains of death, only in the case of the woman's subsequent consent, or her declaration that she went off with him of her own free NV111; and even then he is to suffer an arbitrary punishment, either by imprisonment, confiscation of goods, or a pecuniary fine.
21. Theft is defined a fradulent intermeddling with the property of another, with a view of making gain. Neither the law of Moses nor of Rome punished theft capitally. By the first the thief was hound to restore, in some cases, five times the value ; in others less, Exod. xxii. I. et seq. ; and by the Roman, either the double or quadruple, accord ing to the circumstances attending the crime. Our an cient law proportioned the punishment of the theft to the value of the goods stolen ; heightening it gradually from 'a slight corporal punishment to a capital, if the value amounted to thirty-two pennies Scots, which in the reign of David 1. was the price of two sheep, R. M. 1. 4. c. 16.
§ 3. L. B. c. 121. § 6. In several later acts, it is taken for granted, that this crime is capital, 1537, c. 82.-1606, c. 5, &c. But where the thing stolen is of small value, we consider it, not as theft, but as pickery, which is punished either corporally or by banishment. The break ing of orchards, and the stealing of green wood, is punished by a fine, which rises as the crime is repeated, 1579, c. 84.
22. Theft may be aggravated into a capital crime, though the value of the thing stolen be trifling, as theft twice repeated, L. B. c. 121. § 5, or committed in the night, arg. 1661, c. 22 ; or by lauded men. or of things set apart for sacred uses. The receivers and concealers of stolen goods, knowing them to be such, suffer as thieves. Those who barely harbour the person of the criminal (re ceptatores) within forty•eight hours either before or after committing the crime, are punished as partakers of the theft. Such as sell goods belonging to thieves, or lawless persons, who dare not themselves come to market, are punished with banishment and the escheat of moveables.
23. Theft, attended with violence, is called robbery ; and, in our old statutes, rief, 1477, c. 78, or stouthrief, 1515, c. 2 ; under which class may be included sorning, or the taking of meat and drink by force, without paying for it. Stouthrief came at last to be committed so audaciously, by bands of men associated together, that it was thought ne cessary to vest all our freeholders with a power of holding courts upon sorners and rievers, and condemning them to death, 1594, c. 227. Nay, all were capitally punished, who, to secure their lands from depredation, paid to the rievers a yearly contribution, which got the name of black mail, 1567, c. 21.-1587, c. 102. An act passed 1609, c. 13, commanding to banishment a band of sorners, who were originally from Egypt, called gypsies, and adjudging to death all that should be reputed Egyptians, if found thereafter within the kingdom. Robbery committed on the seas is called piracy, and is punished capitally by the high admiral. Several of the facts which constitute this crime are set forth in a nritish statute, Geo. I. c. 24.