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Paul Johann Anselm von Feuerbach
 

Lehrbuch des gemeinen in Deutschland geltenden Peinlichen Rechts, Giessen, 1801.
 

Book II. Positive or Special Section of the Criminal Law

Part III. On Common Determined Police Offences.

§ 466.

The purpose of the police is to realize the remote means for accomplishing the purposes of the State. It is subdivided into 1) Criminal Police, whose most important business is the prevention of offences, by getting rid of their remote causes; 2) the Property Police, whose object is the preservation and increase of the property of the citizens; 3) the Population Police, which acts to foster the increase and preservation of the quantity of people in the State; 4) the Morals Police, which seeks to establish morality to the extent that this can be influenced by institutions.
 

Title IV. On Offences that in part Violate Morals Police Laws, and in part Population Police Laws

Carnal Offences.

Section One. On Carnal Offences in General.

[source:]
J. Jac. Cella, Von Verbrechen und Strafen in Unzuchtsfällen, Leipzig, 1785. 8.
 
 

§ 481.

Carnal offences (delicta carnis) in general are offences committed by illegal gratification of the sexual drive. In the more narrow and actual sense, all those illegal gratifications of the sexual drive that already in their definition contain the violation of real rights of a person are excluded.
 
 
 

§ 482.

The illegality of the gratification of the copulatory drive, to the extent that a police offence arises from it, is constituted I. by unnatural use of the sex organs - sodomy; II. by the closeness of relationship or in-law status between the cohabiting persons of both sexes - incest; III. by the mere absence of a matrimonial bond. If A) the gratification occurs outside marriage, but under a contract for cohabitation, then it is concubinage; if it happens B) outside of marriage and outside of a contract for cohabitation, then it is whoredom in the broad sense. The latter is either 1) whoredom (fornicatio) if the cohabiting female gives herself to all and sundry without any particular affection, or 2) corruption, defilement (stuprum) if the female consents to the cohabitation out of inclination or definite choice. - Complicity in a carnal offence in the broad meaning is a separate offence (lenocinium).
 
 
 

§ 483.

The point of consummation of these offences is determined by two rules: I. in the case of a carnal offence whose punishability is determined not by unnatural use of the sex organs, everything that is included in the definition of natural cohabitation is included in the offence, therefore it is consummated only by immission of the seed (immissio seminis) II. Any carnal offence whose punishability arises from its unnaturalness is consummated by mere emission of the seed (emissio seminis) *). For the purposeless manner of dispensation of the seed that contradicts the generation of a human being is the cause of all the adverse consequences for the State that result from this action and is the reason for the law against these offences.

*) According to some, mere insertion of the member is sufficient to complete the offence. Boehmer ad Carpzov Q 76. obs. 8 ad art. 116. § 3. Others make a distinction, like Koch inst. j. crim. § 343 and Meister jun. pr. j. crim. § 291 which opinion should be accepted in practice. Quistorp Part I. §. 498.
 
 
 

Section Two. On the Individual Violations in view of the Gratification of the Sex Drive.

Paragraph One. On the Individual Carnal Offences Themselves.

Subparagraph One. On Corruption and Whoredom.

[sources:]
Jo. Jod. Beck. diss. de eo q. j. e. circa stuprum. Norimb. 1743.
Theod. Kretschmann Comment. de stupro voluntario. Stuttgard. 1791.

§ 484.

Corruption (stuprum in sensu stricto) is an extramarital natural cohabitation between an unmarried male and a respectable female not related to the cohabitor in a prohibited degree. A respectable female, whether a virgin or a widow, is understood as only such a person who does not offer herself to all and sundry without selection, even if she has already illegally satisfied cohabitation with different persons. A female who has the opposite qualities is called a whore (meretrix) regardless of whether she offers herself for money*) or merely out of lust. Cohabitation with her, having the characteristics of corruption, is whoredom (fornicatio).

*) Some make the wages the main characteristic. L. 43 § 3 D. de R. N. says however: octavenus rectissime ait, etiam eam, quae sine quaestu palam se prostituerit, debuisse meretricibus annumerari.
 
 
 

§ 485.

From the man's perspective both offences are, as a rule, the same, according to general principles. Not so from the woman's perspective. The offence of the stuprated female derives from weakness, the offence of the whore from baseness; the former is usually the seduced one, the latter is the seducer and spreads the awful poison of her vice.
 
 
 
 

§ 486.

Punishment. According to Roman law, whoredom is never punished in the man, and in the woman only if she is not licensed for prostitution by the police (the aedile). He who corrupted a freeborn woman was fined half of his property, or if he was a persona humilior, with corporal punishment and relegation. *) The female was also subjected to the punishment. **) The canon law imposes church penance in cases of corruption. ***)

*) § 4. I. de publ. jud. On the apparent contradiction with L. 1. § 2D. de extraord. crimin. see Matthaeus de crimin. L. XLVIII tit. 3. c. 5. no. 8.

**) L. 10. § 1. L. 12. D. ad. L. Iul. de adult. L. 18. C. eod.

***) c. 2. X. de adult. c. 5. X. de poenis. On the reason and creation of church penance, see Versuch einer Geschichte der Entstehung und Ausbildung der Kirchenbusse von einem Katholiken. In Flügge's Beyträge zur Geschichte der Religion und Theologie. Part II. p. 1 - 248. On its value, Henke's Archiv für die neueste Kirchengeschichte. 1794. 2nd quarter. Ibid. Eusebia Vol. III. St. 3. No. 15.
 
 
 

§ 487.

The provisions of Roman law are no longer applicable, because they are based solely on Roman police systems and class distinctions. The punishment is arbitrary according to common law. *) German imperial laws call for punishment, but they do not specify the penalty. **) The punishment must not exceed a short prison term or a moderate fine. ***) However, against incorrigible whores banishment from the country or, better, prison can be applied.

*) It is true that church penance is still valid in every territory, as long as it has not been repealed by laws; but, as a merely ecclesiastical punishment, it does not come under consideration here.

**) R. P. O. 1533. Tit. 33. 1548. Tit. 25. 1577. Tit. 26.

***) Regarding fines for whores, see Puffendorf obs. jur. un. T. I. obs. 46 G.L. Boehmer Diss. de mulctis stuprorum vulgo: von Send- und Hurenbrüchen. Gött. 1748.
 
 
 

§ 488.

The following rules serve for determining the severity of the punishment: 1) The whore is more guilty than the corrupted woman, 2) in case of corruption, the male is more guilty than the corrupted female, *) 3) in case of whoredom, the whore is more guilty than the male cohabiting with her. - There is no reason to deem cohabitation between betrothed persons as a crime. **)

*) But why is the opposite relationship observed in practice?

**) Anticipatus concubitus is punished in practice; but only if the bride gives birth before or shortly after the wedding.
 

§ 489.

The punishability of these acts is especially heightened: 1) with respect to the person who induces the other to cohabitation through deceit or treachery, *) 2) due to the particular relationship of the stuprator to the corrupted female, **) 3) due to the violation of rights of a third party through the cohabitation, ***) or due to the fear of such a violation as in cohabitation by a widow during mourning, ****) due to the danger of a great disadvantage for the morality and health of the corrupted person, as in the corruption of an immature girl *****) 5) due to an actual physical injury associated with the cohabitation, as when a whore, knowing she is infected, cohabits and spreads the poison. ******)
1. Among other alleged grounds of intensification of punishment
2. Is stuprum infamatory?
 

*) Matthaeus de crim. L. XLVIII Tit. 3 c. 5 no. 8. In this case, even the death penalty is supposed to be allowable, according to Leyser Sp. 580 m. 7 and 9.

**) L. un. C. st. quis eam, cujus tutor.

***) L. 13. § 3. D. ad L. Iul. de adult.

****) See Beyer Diss. de concubitu intra tempus luctus c. 3. Matthaeus l. c. p. 412. 413.

*****) L. 38. § 3. D. de poenis.

******) Cf. Carpzov Q. 75. no. 53.
 
 

Subparagraph Two. On Concubinage.

[sources:]
Christ. Thomasius Diss. de concubinatu. Hal. 1713. rec. Ienae 1748.
G. Zach. Winckler Diss. de genuino concubinatus ex mente legum romanorum conceptu. Lips. 1744.
Leyser Spec. 585.
 

§ 490.

By definition, marriage (matrimonium, nuptiae) is a contract entered into for life by persons of different sex for the exclusive natural use of the sex organs. In the State the definition of marriage is narrowed. The marriage contract, as one of the more important and consequential contracts in the State, must be linked to external public formalities that bring the conclusion thereof to public knowledge and prevent any possibility of doubt about the reality of the marriage contract entered into. This gives rise to the distinction between legally valid marriage, marriage as such, and concubinage. The latter is a contract entered into by persons of different sex for the gratification of the sexual drive, without the formalities legally provided for the marriage contract. *)

*) The difference from pellicat, from left-handed marriage, (M. ad morganaticam). Conscience marriage, etc.
 
 
 

§ 491.

Concubinage can be permanent (conc. perpetuus s. individuus) if the contract is entered into for life; *) or temporary (conc. tempor. s. individuus) if it is entered into for a longer period of time, but not for life. The former is an actual, but merely natural, and therefore (due to § 490.) legally and ecclesiastically invalid marriage with regard to the State. **)

*) Conscience marriage (matr. conscientiae) is nothing other than concubinage (natural marriage) with the effect of a legally binding marriage. Therefore, only such persons can live together in a conscience marriage who are not subject to the private laws of the State, namely sovereigns. See Schott's Einl. in das Eherecht. § 173.

**) That concub. perpet. was not respected equally with marriage prior to the 16th century, as Leyser c. l. assumes, is demonstrated very well by Koch l.c. § 301. Schol.
 
 
 
 

§ 492.

Since with Catholics the declaration of the marriage consensus (verba de praesenti) before two witnesses and the competent priest, *) and with Protestants the priestly blessing, are required for validity of the marriage contract; **) it is concubinage I. when a Protestant in Germany enters into a cohabitation contract with a person without any wedding ceremony, a Catholic without a ceremonial declaration of the marriage consensus. II. If these solemnities have not been completed fully or in the manner in which they are provided for by law. ***). - The offence is constituted only by actual cohabitation with immission of the seed.

*) Conc. Trid. Sess. XXIV. de ref. matrim. c. 1.

**) Schott's Einl. in d. Eherecht. § 162. Schnaubert Kirchenr. d. Protest. § 248, 249 and 251.

***) Leyser l. c. m. 16. 17. 18.
 
 
 

§ 493.

According to Roman law *), concubinage was a permissible contract, although it did not have all of the legal consequences of marriage. **) With us, any extramarital gratification is disallowed, and any cohabitation contract without the legal formalities, is not only null and void as a marriage, but also punishable as extramarital cohabitation. However, the laws threaten only an arbitrary punishment. ***)

*) L. 3. § 1. D. de concub. L. I. C. eod. L. 3. 5. C. de nat. lib. L. 4. C. ad Sct. Orphis. Nov. 18. c. 5.

**) Böhmer I.E.P. Tom. III. L. III. tit. 2. § 9. Ramos del Manzano Sch diasma de concubinis (in Meermann thes. T. V. p. 553) c. 3. - All antiquarians as well as criminalists sidestep in general the actual definition of Roman concubinage. Instead of telling us what constituted concubinage, they name the persons with whom one could enter into it, or the legal consequences arising from it, or they resort to the affectio maritalis.

***) R. P. O. 1530. Tit. 35. 1548. Tit. 25. 1577. Tit. 26.
 
 
 
 
 

Subparagraph Three. On Incest.

[sources:]
Ph. Jac. Heiseler Diss. de incestu. Hal. 1780.
Car. Chr. Hosacker Diss. sistens historiam et rationem juris incestum prohibentis. Tub. 1787.
 
 

§ 494.

In order to counteract the opportunity for illegal cohabitation between closely related persons, due to familiar and unrestricted interaction, and in order to preserve the strength of the natural feelings of reverence and filial love which are corrupted and destroyed by the gratification of sexual desire with these persons, the laws have not only prohibited extramarital cohabitation among these persons with increased severity, but they have even declared marriage between them to be a punishable association. *) Hence the police offence of incest, Blutschande in the broadest sense, which consists of cohabitation with a person with whom marriage is prohibited due to the closeness of the degree of relationship or in-law status.

*) On the reason for punishment of incest and of marriages prohibited due to close relationship, see also Michaelis, Abhandlung von d. Ehegesetzen Mosis. Gött. 1755. and ibid. Mosaisches Recht, Part II § 103-109.
 
 
 
 

§ 495.

Incest can be committed I. in the form of a marriage that is legal per se - simple incest (inc. simplex) II. by an act that is illegal per se - qualified incest (inc. qualificatus s. conjunctus). This includes 1) incestuous adultery, 2) incestuous bigamy, 3) incestuous concubinage, 4) incestuous corruption, 5) incestuous whoredom.
 
 
 
 

§ 496.

Roman law distinguishes between incestus juris gentium and inc. juris civilis. *) The former encompassed types of incest that were recognized by all peoples as incest, according to their manner of conception, and whose prohibition in the Roman state was established by unchangeable mores: the latter was based on arbitrary structures and laws of the Roman state. **) Therefore, inc. jur. civ. included even cohabitation between persons between whom a fictitious relationship or in-law status existed; ***) inc. jur. gent. covered actual relations or in-laws and was primarily committed 1) between ascendants and descendants ****) 2) between blood relatives or in-laws of whom one stood in a parental relationship to the other *****) 3) between siblings. ******)

*) Usually in compendia this impractical distinction, so they say, is intentionally ignored. But a fleeting glance will confirm that neither the most minor statute of Roman law on incest can be understood without precise knowledge of this distinction, nor can a thorough-going theory of this offence be offered. - The author will develop this yet so obscure distinction in a separate treatise after the laws.

**) L. 6. 8. D. de R. N. L. 38. § 2 D. ad L. Iul. de adult.

***) Here belong the cases: § 2. 2. I. de nupt. L. 12. § 1. 2. L. 14. § ult. L. 15. D. de R. N. L. 15. C. de incest. nupt. (L. 2. 4. C. Th. eod).

****) According to Westenberg ad D. L. XLVIII tit. 5. § 22 and others this case is supposed to be inc. jur. gent. however.

*****) L. 68. D. de R. N. L. 58. § 1. 2. D. ad L. Iul. de adult. L. 39. D. de R. N. L. 5. § 1. D. de condict. sine causa. That marriage with a sister belongs to inc. jur. gent. here is proven irrefutably by the last law, that says that here the female is in pari delicto with the male, which according to L. 38 § 2. D. ad L. Iul. de ad. constitutes the differential character of the inc. jur. gent. L. 32. pr. says precisely this about marriage between step-parents and step-children, and between parents-in-laws and children-in-law.

******) L. 8. L. 14. § 2. D. de R. N.
 
 
 

§ 497.

Punishment. The P. G. O. *) cites Roman law. However, according to the Pandecta, the punishment is undetermined, ambiguous, and obscure **) and Justinian's ordinance ***), while definite with regard to the punishment, is indefinite with respect to the cases and persons threatened by it. Therefore, none of these laws provide us with a standard and must be viewed as indeterminate penal statutes. According to general principles, therefore, qualified incest would have to be assigned the intensified punishment of the offence with which it goes hand in hand: simple incest of an inexcusable degree would have to be assigned a maximum of 10 years in prison, and other degrees even lower penalties. ****)
 

*) Article 117.

**) L. 5. D. de quaest. L. 38. § 1. 5. D. ad L. Iul. de adult.

***) Nov. 12, which Leyser l. c. unjustifiedly calls legem clarissimam.

****) The older practitioners, influenced by Carpzov, take the ordinance of ecclesiastical law (Const. P. IV. const. 22-24) for common law, according to which ascendants and descendants are punished by the sword, others according to the different persons by feather duster, relegation, jail, or prison. Leyser Sp. 586. m. 7. - The more recent practice supposedly punishes ascendants and descendants with life imprisonment, and others with 10-2 years imprisonment. Meister jun. l. c. § 288. Quistorp Part I. § 506 2.
 
 
 

§ 498.

Culpa can be established in this offence 1) by culpable ignorance of the fact that the cohabiting partner was related to him in the particular prohibited degree, 2) by culpable ignorance of the law that prohibits, with punishment, cohabitation with a person related in a certain degree.
 
 
 

Subparagraph Four. On Sodomy.

[sources:]
Ern. Tentzel pr de Sodomia Erf. 1723.
Ant. van Goud.-Oever Diss. de nefanda libidine. Ultraj. 1731.
I. Chr. Eschenbach pr. dubia in applicatione art. 116. C.C.C. obveniensia. Rost. 1787.
 

§ 499.

Sodomy in the broad sense *) consists of unnatural gratification of the sexual drive. The great degree of profligacy that causes and results from this vice, the contempt for marriage arising from it, resulting in depopulation and weakening and finally dissolution of the power of the State, **) and finally the physical ennervation of the citizens which makes them incapable of contributing to the purpose of the State: these are the reasons why the Police is called upon to prohibit these acts and to punish them.

*) In Roman law nefanda libido, monstrosa Venus, etc.

**) Michaelis Mosaisches Recht Part V. § 258, who, however, too much regards only the purposes of the Population Police.
 
 
 
 

§ 500.

The common laws *) encompass as sodomy I) cohabitation of a human being with another living human being of the same sex (sodomia ratione sexus), which contains within it 1) cohabitation of a man with a man and 2) cohabitation of a woman with a woman **) II) cohabitation of a human being with a being of a different species (sod. ratione generis; bestiality). ***)

*) Art. 116 P. G. O. - Roman law recognizes as a crime only the first form of sodomia ratione sexus.

**) It is wrong when Cella Über Verbrechen und Strafe in Unzuchtsfällen § 43 asserts that Charles had nothing specific in mind with this, but only included it as the respective opposite. He indeed was thinking of the females who were called tribades, frictices by the Romans.

***) Unknown in common law is 1) sodomy in the improper sense (sod. impropria) gratification of the sexual desire without a living being as the object of it - masturbation, manustupration [fingering or fisting], coitus with a corpse, 2) unnatural cohabitation with a person of the other sex (sodomia ratione ordinis natura).
 
 

§ 501.

The punishment under common law is burning, without differentiation of the various forms of sodomy. *) Since the common law does not recognize sodomy in the improper sense and sodomy against the order of nature as crimes, there can be no talk of a punishment of them under common law. Particular laws must decide. **)

*) As cruel as the disproportion between the punishment and the crime is here too, it is nonetheless a law, and it is very strange to simply deny the validity of this law on the grounds that it is based on a conception of the matter known to be incorrect, as Grolman C. R. W. § 559 expresses it. Nothing more can be said than that the legislator is known here to have calculated incorrectly. And if this takes away the validity of a law, then it is time for the State to give up concerning itself with the making of laws that the subject is allowed to pronounce judgment over. - By the way, the practice assumes only the sword in the case of sod. rat. sexus. In sodomia rat. generis it rules for burning only if the criminal shows the highest degree of depravity and the act has been repeated several times. Böhmer ad art. 116 § 6. Quistorp Part I § 500.

**) Former law professors would like to punish sod. rat. ord. nat. in the same way as the legal forms; others assume arbitrary punishment, Kress. h. a. § 2. *2. The same applies to sodomia impropria, cf. Meister jun. l. c. § 293. Quistorp Part I § 500. Koch l. c. § 346.
 
 
 
 

§ 502.

Besides the other common extenuating circumstances, in some cases ignorance of the facts, especially ignorance of the emissio seminis may give grounds for moderatingthe punishment. *) The confession of the criminal that the seed was actually emitted is not complete proof; rather the confession must be supported by other grounds of likelihood. **)

*) All law professors assert as specific extenuating circumstances 1) youth, if the criminal is not yet 18 years old; 2) drunkenness and passion; 3) stupidity and ignorance of religious and moral issues.

**) Leyser Sp. 589. m. 4-9.
 
 
 
 

Paragraph Two. On Complicity in Carnal Offences. Procuration.

[sources:]
Chr. Gottf. Sulzberger Diss. de lenocinio conjugum. Erf. 1693.
Ephr. Gerhard Diss. de lenocinio. Jen. 1711.

§ 503.

The deliberate furtherance of illegal gratification of the sexual drive of others defines the crime of procuration (lenocinii). The procurer is, per se, merely an accessory; his action goes over into a particular crime, however, which is often punished more severely than the act of the actor himself. The procurer is usually a seducer and enticer to the crime, he spreads vice, while the gratification of lust usually stops with the transgressors themselves, those who, fallen into passion, merely intend the gratification of their desire.
 
 

§ 504.

The constituent facts of the crime consist of I. an act that furthers or enables the gratification of the lust of others. Therefore, procuration cannot be committed by an act subsequent to the illegal cohabitation of others; except if a husband pardons an act of adultery by his wife for the sake of a benefit. *) Furthermore, procuration can be committed both by positive **) and by negative acts (omissions). The latter requires an obligation to guard over the virtue of the other. ***) II. The gratification of the lust of the third party must have been completed; otherwise the crime is merely attempted. ****) III. Deception. Culpable lenocinium is legally impossible. *****)

*) L. 29. § 2. D. et L. 10. C. ad L. Iul. de adult. - Roman law knows still other kinds of subsequent lenocinii, which are not applicable these days. L. 29. § 1. D. ad L. Iul. de adult. L. 9. C. eod. L. 1. § 1. D. de concub. L. 18. C. de Transacs. L. 2. et 10. C. ad L. Iul. de adult.

**) L. 8. 9. 10. § 1. L. 12. 14. D. ad L. Iul. de adult.

***) For example parents in relation to the gratification of the lust of their children, the husband in relation to his wife. Roman law requires, however, that the husband tolerates the adultery of his wife for the sake of a benefit. L. 2. § 3. D. ad L. Iul. de adult.

****) This is clearly apparent in the language of the laws, e.g. art. 122 de P. G. O. "If someone causes his wife to be used - for - vile acts." This is also seen in art. 123 P. G. O. and from individual provisions of Roman law. In opposition Koch pr. jur. crim. § 353.

*****) For the laws require expressly that lenocinium is "intentional" (art. 122. P. G. O.), that it has occurred "in an evil treacherous manner" (art. 123. P. G. O.). The L. 29 § 4. ad L. Iul. de ad. says expressly: Quod si patiatur vxorem delinquere - ob negligentiam, vel culpam, vel quondam patientiam, vel nimiam credulitatem (all cases of culpable lenocinii) extra legem positus est. c.
 
 
 
 

§ 505.

Procuration in the broader sense is either whoremongering (lenocinium vulgare) if someone promotes the gratification of the lust of others as a profession, *) or procuration in the narrow sense if this is not the case. - Both of them are divided in turn into qualified procuration, if someone procures either his wife or his children for a self-interested intention, **) and simple procuration if either another person is the object of crime or another intention underlies it.

*) Lenocinium publicam - privatum. L. 4. § 4. D. de bis qui nat. Klein's peinl. Recht. § 417. 418.

**) Both requirements are legally necessary: art. 122 P. G. O. "Item, if someone causes (1) his wife or children to be used intentionally for dishonorable, unchaste and vile acts (2) for the sake of any sort of benefit that might be named, he has lost his honor and shall be punished to the extent of the common law." Law professors usually separate the first requirement from len. qual., make of it a special lenocinium quaestuarium and define the concept both of qualified and of simple procuration according to the object of the crime. Cf. Boehmer ad Carpzov. Q. 71. Obs. 1. et ad b. a. § 3.
 
 
 

§ 506.

Qualified procuration may not be extended to any person other than those named. *) Children are meant, however, to include both sons and daughters, **) both natural and adopted children, ***) and both legitimate and illegitimate children, although the latter only in relation to the mother. The self-interested intention need not refer merely to a benefit in terms of assets, it can also refer to any sort of other sensory purpose. ****)

*) Cf. Koch pr. jur. crim. § 355. - The grounds for the crime is the special obligation to guard over the morality of certain persons. Therefore, len. qual. cannot be extended to all ascendants, as all law professors unjustifiedly claim. For grandparents do not bear this obligation, at least in general. Also a woman cannot commit this crime against her husband. The man has always, thus also in Charles's time, been viewed as the guardian and overseer of the morality of the woman , not the other way around. - L. 33. § 2. D. ad L. Iul. de adult. does not contradict this in any way.

**) Boehmer ad h. a. § 2.

***) Boehmer, l. c.

****) Cf. Leyser Sp. 588. m. 9. et. 15. - Kress ad art. 122. § 2 and 3.
 
 
 
 

§ 507.

The punishment of simple procuration is arbitrary, but the death penalty is ruled out. *) In qualified procuration, the death penalty, as well as infamy, is threatened. For although it is quite doubtful whether the Roman law, **) which Charles cites, included the death penalty, it is nonetheless certain that the death penalty was generally detected in the Roman law in Charles's time, ***) and therefore Charles too had this penalty in view. ****)

*) P. G. O. Art. 123.

**) Nov. 14, which threatens the leno. omnia novissima supplicia (or rather omnium novissima supplicia, tas pasoon eschatas poinas). Comp. Ern. Fr. Haupt Diss. de poena adulterii, Accedit. de suppliciis lenonum commentatio. Lips. 1797.

***) Iul. Clarus Practica crim. Q. 68. No. 23. Prosper Farinacius pr. crim. Q 144. No. 9. Damhouder pr. rer. crim. C. 91. No. 8.

****) The law professors and practictioners want only arbitrary punishment. Klein's p. R. § 419. Quistorp Part I § 521. Meister jun. l. c. § 310.
 
 
 
 

§ 508.

In determining the arbitrary punishment for simple procuration, the following rules are important I. whoremongering is more punishable than procuration. II. In order to determine the specific degrees of punishability of these two types, what matters is: 1) the quality of the procured person, 2) the manner in which the procuration occurs, which is to be judged according to the rules for punishment of accessories in general, and finally 3) the quality of the crime to which assistance is provided. *)

*) Someone who promotes, for example, sodomy or incest through procuration is more punishable than someone who participates merely in simple whoredom.