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sixteen, were usually upon mercenary views, this act, besides punishing tho scducer, wisely removed the temptation. But this latter part of the act is now *210]

rendered *almost useless by provisions of a very different kind, which

make the marriage totally void,(s) in the statute 26 Geo. II. c. 33.7 III. A third offence, against the female part also of his majesty's subjects, but attended with greater aggravation than that of forcible marriage, is the crime of rape, raptus mulierum, or the carnal knowledge of a woman forcibly and against her will. This, by the Jewish law,(t) was punished with death in case the damsel was betrothed to another man; and in case she was not betrothed, then a heavy fine of fifty shekels was to be paid to the damsel's father, and she was to be the wife of the ravisher all the days of his life, without that power of divorce which was in general permitted by the Mosaic law.

The civil law(u) punishes the crime of ravishment with death and confiscation of goods; under which it includes both the offence of forcible abduction, or taking away a woman from her friends, of which we last spoke ; and also the present offence of forcibly dishonouring them ; either of which without the other is in that law sufficient to constitute a capital crime. Also, the stealing away a woman from her parents or guardians, and debauching her, is equally penal by the emperor's edict, whether she consent or is forced : "sive volentibus, sive nolentibus mulieribus, tale facinus fuerit perpetratum.And this, in order to take away from women overy opportunity of offending in this way; whom the Roman law supposes never to go astray without the seduction and art of the other sex: and therefore, by restraining and making so highly penal the solicitations of the men, they meant to secure effectually the honour of the

Si enim ipsi raptores metu, vel atrocitate pænæ, ab hujusmodi facinore se temperaverint, nulli mulieri, sive volenti, sive nolenti, peccandi locus relinquetur ; quia hoc ipsum velle mulierum, ab insidiis nequissimi hominis, qui meditatur ra. *211]

pinam, inducitur. *Nisi etenim eam solicitaverit, nisi odiosis artibus circum

venerit, non faciet eam velle in tantum dedecus sese prodere." But our English law does not entertain quite such sublime ideas of the honour of either sex as to lay the blame of a mutual fault upon one of the transgressors only; and therefore makes it a necessary ingredient in the crime of rape that it must be against the woman's will.

Rape was punished by the Saxon laws, particularly those of king Athelstan, (2) with death; which was also agreeable to the old Gothic or Scandi. navian constitution.(x) But this was afterwards thought too hard ; and in its stead another severe but not capital punishment was inflicted by William the Conqueror, viz., castration and loss of eyes ;(y) which continued till after Bracton wrote, in the reign of Henry the Third. But, in order to prevent malicious accusations, it was then the law (and, it seems, still continues to be so in appeals of rape)(z) that the woman should immediately after, “dum recens fuerit male.

Stiernh. de jure Sucom. I. 3, c. 2.


(5) See book i. page 437, &c.

Deut. xxii. 25.

Cod. 9, tit. 13.
(") Bracton, l. 3, c. 28.

(*) LL. Gull. Cong. c. 19.
(*) 1 Hal. P. C. 631.

shall award. This clause was framed for the purpose of meeting such a case as that of Wakefield.—Cutty.

? Such a marriage, if voluntary on the part of the female, that is, not procured by force or fraud, would not now be void,—it having been held, after much doubt entertaired upon the point among the profession, (see Ďoe vs. Price, 1 M. & R. 683,) that the 4 Geo. IV. c. 76 legalizes marriages which would otherwise have been void, under the 26 Geo. II. c. 33, on account of the minority of the parties and the non-consent of parents. See Rex vs. Birmingham, 2 M. & R., 8 B. & C. 29, and the judgment of lord Tenterden therein The new act, however, provides (sect. 23) that if any valid marriage solemnized by license shall be procured by a party to such marriage to be solemnized between persons one or both of whom shall be under age, by means of false swearing to any matter to which such party is required personally to depose, all the property accruing from the marriage shall be forfeited, and shall be secured for the benefit of the innocent party or the issue of the marriage. The latter words clearly show the intention of the legislature not to render the marriage void; for the words “issue of the marriage” in an Act of Parliament must mean lawful issue, which they could not be if the marriage was void.-Chitty.

ficium,go to the rext town, and there make discovery to some credible person of the injury she has suffered, and afterwards should acquaint the high constable of the hundred, the coroners, and the sheriff with the outrage.(a) This seems to correspond in some degree with the laws of Scotland and Aragon,(6) which require that complaint must be made within twenty-four hours; though afterwards, by statute Westm. 1, c. 13, the time of limitation in England was extended to forty days. At present there is no time of limitation fixed; for as t is usually now punished by indictment at the suit of the king, the maxim of law takes place that nullum tempus occurrit regi; but the jury will rarely give credit to a stale complaint. During the former period also it was held for law(c) that the woman (by consent of the judge and her parents) might redeem the offender from the execution of his sentence by accepting him for her husband, if he also was willing to agree to the exchange, but not otherwise.

*In the 3 Edw. I., by the statute Westm. 1, c. 13, the punishment of rape was much mitigated; the offence itself of ravishing a damsel within

[*212 age, (that is, twelve years old,) either with her consent or without, or of any other woman against her will, being reduced to a trespass, if not prosecuted by appeal within forty days, and subjecting the offender only to two years' imprisonment and a fine at the king's will. But, this lenity being productive of the most terrible consequences, it was in ten years afterwards, 13 Edw.

I., found necessary to make the offence of forcible rape felony, by statute Westm. 2, c. 34. And by statute 18 Eliz. c. 7, it is made felony without benefit of clergy; as is also the abominable wickedness of carnally knowing and abusing any woman child under the age of ten years; in which case the consent or non-consent is immaterial, as by reason of her tender years she is incapable of judgment and discretion. Sir Matthew Hale is indeed of opinion that such profligate actions committed on an infant under the age of twelve years, the age of female discretion by the common law, either with or without consent, amount to rape and felony, as well since as before the statute of queen Elizabeth ;(d) but that law has in general been held only to extend to infants under ten, though it should seem that damsels between ten and twelve are still under the protection of the statute Westm. 1, the law with respect to their seduction not having been altered by either of the subsequent statutes.s

A male infant under the age of fourteen years is presumed by law incapable to commit a rape, and therefore, it seems, cannot be found guilty of it. For though in other felonies malitia supplia ætatem, as has in some cases been shown, yet, as to this particular species of felony, the law supposes an imbecility of body as well as mind.(e)

The civil law seems to suppose a prostitute or common harlot incapable of any injuries of this kind;(f) not allowing *any punishment for violating the chastity of her who hath indeed no chastity at all, or at

[*213 least hath no regard to it. But the law of England does not judge so hardly of offenders as to cut off all opportunity of retreat even from common strum. pets, and to treat them as never capable of amendment. It therefore holds it to be felony to force even a concubine or harlot; because the woman may have forsaken that unlawful course of life :(9) for, as Bracton well observes, (h) licet meretrix fuerit antea, certe tunc temporis non fuit, cum reclamando nequitiæ ejus con. sentire noluit.

As to the material facts requisite to be given in evidence and proved upon an indictment of rape, they are of such a nature that, though necessary to be

(a) Glanv. I. 14, c. 6. Bract. 1. 3, c. 28.
i Barrington, 142.

Cod. 9, 9, 22. Ff. 47, 2, 39.

(*) Ibid.

(e) Glanv. l. 14, c. 6. Bract. l. 3, c. 28.
(°) 1 Hal. P.C. 631.

(9) 1 Hal. P. C. 629. 1 Hawk. P. C. 108.
(*) Fol. 147.

• But now, by stat. 4 & 5 Vict. c. 56, s. 3, the punishment of death is repealed, and transportation for life is substituted for both the offences of rape and carnal knowledge of a girl under ten years of age, for which penal servitude may now be substituted. STEWART.

. But an infant under fourteen may be guilty as an abettor if shown to possess a mis chievous discretion. 1 Hale, 630.-Cutty.

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known and settled for the conviction of the guilty and preservation of the innocent, and therefore are to be found in such criminal treatises as discourse of these matters in detail, yet they are highly improper to be publicly discussed, except only in a court of justice. I shall therefore merely add upon this nead a few remarks from Sir Matthew Hale, with regard to the competency and red.bility of witnesses; which may, salvo pudore, be considered.

And, first, the party ravished may give evidence upon oath, and is in law a competent witness; but the credibility of her testimony, and how far forth she is to be believed, must be left to the jury upon the circumstances of fact that concur in that testimony. For instance: if the witness be of good fame; if she presently discovered the offence and made search for the offender; if the party accused fled for it; these, and the like, are concurring circumstancos which give greater probability to her evidence. But, on the other side, if she be of evil fame, and stand unsupported by others; if she concealed the injury for any considerable time after she had opportunity to complain ; if the place, where the fact was alleged to be committed, was where it was possible she *214]

might have been heard, and she made no outcry; these and the *like

circumstances carry a strong but not conclusive presumption that her testimony is false or feigned.10

Moreover, if the rape be charged to be committed on an infant under twelve years of age,

she may still be a competent witness if she hath sense and understanding to know the nature and obligations of an oath, or even to be sensible of the wickedness of telling a deliberate lie. Nay, though she hath not, it is

" thought by Sir Matthew Hale(i) that she ought to be heard without oath, to give the court information; and others have held that what the child told her mother or other relations may be given in evidence, since the nature of the case admits frequently of no better proof. But it is now settled (Brazier's case, before the twelve judges, P. 19, Geo. III.] that no hearsay evidence can be given of the declaration of a child who hath not capacity to be sworn, nor can such child be examined in court without oath ; and that there is no determinate age at which the oath of a child ought either to be admitted or rejected. Yet, where the evidence of children is admitted, it is much to be wished, in order to render their evidence credible, that there should be some concurrent testimony of time, place, and circumstances, in order to make out the fact; and that the conviction should not be grounded singly on the unsupported accusation of an infant under years of discretion. There may be, therefore, in many cases of this nature, witnesses who are competent, that is, who may be admitted to be heard, and yet, after being heard, may prove not to be credible or such as the jury is bound to believe. For one excellence of the trial by jury is, that the jury are triers of the credit of the witnesses, as well as of The truth of the fact.

(01 Hal. P. C. 634.

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10 But the rule respecting the time that elapses before the prosecutrix complains will not apply where there is a good reason for the delay, as that she was under the control or influenced by fear of her ravisher. 1 East, P. C. 445. And so all other general rules, as they are deduced from circumstances, must yield when they appear to be unsafe guides to the discovery of truth. The state and appearance of the prosecutrix, marks of vio lence upon her person, and the torn and disordered state of her dress recently after the transaction, at the time of complaint, are material circumstances, which are always ad. missible in evidence. See 2 Stark. 241. If the prosecutrix be an infant of tender years, the whole of her account recently given seems to be admissible, for it is of the highest importance to ascertain the accuracy of her recollection, (East, P. C. 443. Stark. on Evidence, part iv. 1268;) but, in 2 Stark. Rep. 241, upon an indictment for an attempt to commit a rape upon an adult, Holroyd, J., held that the particulars of the complaint made by the prosecutrix recently after the injury were not admissible in evidence. In the case of the death of the prosecutrix, her depositions, taken before a magistrate, are admissible, though not authenticated by her signature. 2 Leach, 854, 996.

11. When the child does not sufficiently understand the nature and obligation of an oath, the judge will put off the trial, for the child to be instructed in the mean time. Bec Abr. Evid. a. Leach, 13), n.-Cutty.

*“ It is true,” says this learned judge (1) " that ripe is a most dutestable crime, and therefore ought severely and impartially to be punished

[*215 with death; but it must be remembered that it is an accusation easy to be made, hard to be proved, but harder to be defended by the party accused, though innocent He then relates two very extraordinary cases of malicious prosecution for this crime that had happened within his own observation, and concludes thus:-"I mention these instances that we may be the more cautious upon trials of offences of this nature, wherein the court and jury may with so much ease be imposed upon, without great care and vigilance, the heinousness of the offence many times transporting the judge and jury with so much indignation that they are over-hastily carried on to the conviction of the person accused thereof by the confident testimony of sometimes false and malicious witnesses."

IV. What has been here observed, especially with regard to the manner of proof, which ought to be more clear in proportion as the crime is the more detestable, may be applied to another offence of a still deeper malignity,—the infamous crime against nature, committed either with man or beast; a crime which ought to be strictly and impartially proved, and then as strictly and impartially punished. But it is an offence of so dark a nature, so easily charged, and the negative so difficult to be proved, that the accusation should be clearly made out; for if false, it deserves a punishment inferior only to that of the crimo itself.

I will not act so disagreeable a part, to my readers as well as myself, as to dwell any longer upon a subject the very mention of which is a disgrace to human nature. It will be more eligible to imitate, in this respect, the delicacy of our English law, which treats it in its very indictments as a crime not fit to be named : peccatum illud horribile, inter Christianos non nominandum.(k) A taciturnity observed likewise by the edict of Constantius and Constans :(?) ubi scelus est id, quod non proficit scire, jubemus insurgere leges, armari jura *gladio ultore , ut exquisitis pænis subdantur infames, qui sunt, vel qui futuri sunt rei." [*216

[ Which leads me to add a word concerning its punishment.

This the voice of nature and of reason and the express law of God(m) deter. mined to be capital. Of which we have a signal instance long before the Jewish dispensation by the destruction of two cities by fire from heaven; so that this is a universal, not merely a provincial, precept. And our antient law in some degree imitated this punishment, by commanding such miscreants to be burned to death,(n) though Fleta(o) says they should be buried alive; either of which punishments was indifferently used for this crime among the antient Goths.(P) But now the general punishment of all felonies is the same, namely, by hanging; and this offence (being in the times of popery only subject to ecclesiastical censures) was made felony without benefit of clergy by statute 25 Hen. VIII. c. 6, revived and confirmed by 5 Eliz c. 17. And the rule of law herein is, that if both are arrived at years of discretion, agentes et consentientes pari pena plectantur.(a)

These are all the felonious offences more immediately against the personal security of the subject. The inferior offences or misdemeanours that fall under this head are assaults, batteries, wounding, false imprisonment, and kidnapping.

V. VI. VII. With regard to the nature of the three first of these offences in general, I have nothing further to add to what has already been observed in the preceding book of these commentaries, (r) when we consider them as private wrungs or civil injuries, for which a satisfaction or remedy is given to the party aggrieved But, taken in a public light, as a breach of the king's peace, an affront to his government, and a damage done to his subjects, they are also indictable and punishable with fines and imprisonment, or with other ignominious corporal penalties, where they are committed with any very atrocious design ;(s) as in case of an assault with an intent to murder, or with an intent (' lal. P. C. 635. (b) See in Rot. Parl. (50 Edw. III. n. 58) a complaint that



& Lombard did commit the sin" that was not to be named."
12 Rep. 37.

(") Cod. 9, 9, 31.
() Levit. xx. 13, 15.

(*) Britt. c. 9.
(O) L. 1, c. 37.
(P) Stiernh. de jure Goth. I. 3, c. 2.
() 3 Inst. 50.
(T) See book iii. p. 120
• 1 lawk. P. C. 65.

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to commit either of the *crimes last spoken of; for which intentional

assaults, in the two last cases, indictments are much more usual than for the absolute perpetration of the facts themselves, on account of the difficulty of proof; or, when both parties are consenting to an unnatural attempt, it is usual not to charge any assault, but that one of them laid hands on the other with intent to commit, and that the other permitted the same with intent to suffer, the commission of the abominable crime before mentioned. And in all these cases, besides heavy fine and imprisonment, it is usual to award judgment of the pillory.12

There is also one species of battery more atrocious and penal than the rest which is the beating of a clerk in orders or clergyman, on account of the respect and reverence due to his sacred character as the minister and ambassador of peace. Accordingly, it is enacted, by the statute called articuli cleri, 9 Edw. II. c. 3,13 that if any person lay violent hands upon a clerk, the amends for the peace broken shall be before the king, that is, by indictment in the king's courts; and the assailant may also be sued before the bishop, that excommunication or bodily penance may be imposed, which if the offender will redeem by money, to be given to the bishop or the party aggrieved, it may be sued for before the bishop: whereas, otherwise, to sue in any spiritual court for civil damages for the battery falls within the danger of præmunire.(t) But suits are, and always were, allowable in the spiritual court for money agreed to be given as a commu. tation for penance.(u) So that upon the whole it appears that a person guilty of such brutal behaviour to a clergyman is subject to three kinds of prosecution, all of which may be pursued for one and the same offence: an indictment for the breach of the king's peace by such assault and battery; a civil action for *218]

the special damage sustained by the party injured; and a suit *in the

ecclesiastical court, first pro correctione et salute animæ, by enjoining po nance, and then again for such sum of money as shall be agreed on for taking off the penance enjoined; it being usual in those courts to exchange their spiritual censures for a round compensation in money,(v) perhaps because poverty is generally esteemed by the moralists the best medicine pro salute animæ.

VIII. The two remaining crimes and offences against the persons of his majesty's subjects are infringements of their natural liberty; concerning the first of which, false imprisonment, its nature and incidents, I must content myself with referring the student to what was observed in the preceding volume,(w) when we considered it as a mere civil injury. But, besides the private satisfaction given

(") 2 Roll. Rep. 384. (") Artic. Oler. Edw. II. c. 4, F. N. B. 53.

() See book ai. p. 127.


( 2 Inst. 492, 620.

12 The punishment of pillory is now taken away by the 56 Geo. III. c. 138. In cases of assaults of a very aggravated nature, the punishment of whipping has been inflicted in addition to that of imprisonment and finding sureties for good behaviour. 1 Burn, J. 24th ed. 231. 1 East, P. C. 406. The 3 Geo. IV. c. 114 inflicts a severer punishment on persons guilty of assaults therein particularly described. In cases where the offence more immediately affects the individual, the defendant is sometimes permitted by the court, even after conviction, to speak with the prosecutor before any judgment is pronounced, and a trivial punishment (generally a fine of a shilling) is indicted, if the prosecutor declares himself satisfied. Post, 363, 364. And where, in a case of indictment for ill-treating a parish apprentice, a security for the fair expenses of the prosecution had been given by the defendant, after conviction, upon an understanding that the couri would abate the period of his imprisonment, the security was held to be good, upon the ground that it was given with the sanction of the court, and to be considered as part of the punishment suffered by the defendant in expiation of his offence, in addition to the imprisonment inflicted on him. 11 East, 46.-Cutty.

13 This act is repealed, so far as relates to laying violent hands on a clerk, by 9 Geo. IV. c. 31; by 23 of which, if any person shall arrest any clergyman upon any civil process while he shall be performing divine service, or shall, with the knowledge of such person, be going to perform the same, or returning from the performance thereof, every such offender shall be guilty of a misdemeanour, and, being convicted thereof, shall suffer such punishment, by fine or imprisonment or by both, as the court shall award. The 50 Edw III. c. 5, and 1 Ric. II. c. 15, upon the same subject, are also repealed by the new act. The arrest, if not on a Surday, would be good in law. Wats. c. 34.-CHitty.

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