house or other place; an offence, of which the probable consequence may be either killing or maiming him. This, though no such evil consequence ensues, is made felony without benefit of clergy by sta- [208] tute 9 Geo. I. c. 22., and thereupon one Arnold was convicted -in 1723 for shooting at lord Onslow; but, being half a madman, was never executed, but confined in prison, where he died about thirty years after.3 II. The second offence, more immediately affecting the personal secu. rity of individuals, relates to the female part of his majesty's subjects; being that of their forcible abduction and marriage: which is vulgarly called stealing an heiress. For by statute 3 Hen. VII. c. 2., it is enacted, that if any person shall for lucre take any woman, being maid, widow, or wife, and having substance either in goods or lands, being heir apparent to her ancestors, contrary to her will; and afterwards she be married to such misdoer, or by his consent to another, or defiled; such person, his procurers and abettors, and such as knowingly receive such woman, shall be deemed principal felons; and by statute 39 Eliz. c. 9., the benefit of clergy is taken away from all such felonies, who shall be principals, procu. rers, or accessories before the fact.3 In the construction of this statute it hath been determined, 1. That the indictment must allege that the taking was for lucre, for such are the fence within the act, that the injury should be eventually dangerous, Russ. & Ry. C. C. 362.; sed vide Holt C. N. P. 469. By the 6 Geo. IV. c. 126. provision is made in Scotland for preventing malicious shooting, and attempting to discharge loaded fire-arms, stabbing, poisoning, disfiguring, or disabling, &c. persons, punishing the offence with death. Chitty. (2) To bring an offence within this provision, it is not necessary he should be disguised. 8 Harg. S. T. 313. The essence of this crime consists in maliciously shooting; no act of shooting therefore will amount, under this statute, to a capital offence, unless it be accompanied with such circumstances as in construction of law would have amounted to the crime of murder, if death had ensued from such an act; for there is no species of homicide in which malice forms any ingredient, except that of murder; it follows therefore that a shooting in the transport of passion, excited by such a degree of provocation, as would reduce the homicide to the offence of manslaughter, is not within the meaning of the statute. Leach, 323 Three persons were indicted on the black act for shooting at the prosecutor; they were all charged with the single act, and the indictment was held by all the judges of England to be sufficient. Mr. J. Buller, 3 T. R. 105. Seven coalheavers were indicted together for shooting at one Green; they were all convicted and executed, though some had no fire-arms, but they were present encouraging those who fired. 1 East P. C. 413. 1 Leach, 64. The words are shoot at, and where a man fired a run in the dark with intent to kill another in the direction which he thought was the most likely to effect his purpose, but where the person intended to be hit was in a different direction, it was held by the court at the Old Bailey that it was not a capital crime within the statute. 1 East P. C. 412. And in an indictment on the 43 Geo. III. c. 58. for attempting to discharge a loaded blunderbuss at J. S., it was held, that, in order to constitute the offence of attempting to discharge loaded fire-arms, they must be so loaded as to be capable of doing the mischief intended. Russ. & Ry. C. C. 377. But if the instrument be fired so near and in such a direction as to be likely to kill or do other grievous bodily harm, and with intent that it should do so, the case will be within the act, though it be loaded with powder and paper only. Russ & Ry. C C. 95. By the 43 Geo. III. c. 58., if any person shall wilfully and maliciously shoot at any of his majesty's subjects, or shall present or level any kind of loaded fire-arms at any one, and attempt to discharge the same by drawing the trigger, or in any other manner, with intent to murder, rob, maim, disfigure, or disable him, or to do him some grievous bodily harm, he, his counsellors, aiders, and abettors, shall be guilty of felony without benefit of clergy; provided that if it shall appear upon the trial that such shooting and attempt to discharge fire-arms were committed under circumstances that if death had ensued, the same would not have amounted to the crime of mur. der, then the person indicted shall be acquitted. And see as to Scotland, ante, 207. n. (1). The preceding note (supra note 1), and what will be found in that note, as to the extension of the act to offences committed on the sea,-the malice necessary to be proved,-what is a shooting, and what a bodily harm, within the act, will be here applicable. Chitty. (S) The 1 Geo. IV. c. 115. repeals this, and the offender is now to be punished with transportation for life, or for not less than seven years; or with imprisonment, with or without hard la, bour, for not exceeding seven years. words of the statute. (1) 2. In order to shew this, it must appear that the woman has substance either real or personal, or is an heir apparent. (m) 3. It must appear that she was taken away against her will. 4. It must also appear that she was afterwards married, or defiled. And though possibly the marriage or defilement might be by her subsequent consent, be. ing won thereunto by flatteries after the taking, yet this is felony, if the first taking were against her will: (n) and so vice versa, if the woman be originally taken away by her own consent, yet if she afterwards refuse to continue with the offender, and be forced against her will, she may [209] from that time as properly be said to be taken against her will, as if 4 she never had given any consent at all; for till the force was put upon her, she was in her own power. (o) It is held that a woman, thus taken away and married, may be sworn and give evidence against the offender, though he is her husband de facto; contrary to the general rule of law; because he is no husband de jure, in case the actual marriage was also against her will. (p) In cases indeed where the actual marriage is good, by the consent of the inveigled woman obtained after her forcible abduction, sir Matthew Hale seems to question how far her evidence should be allowed: but other authorities (q) seem to agree, that it should even then be admitted; esteeming it absurd, that the offender should thus take advantage of his own wrong, and that the very act of marriage, which is a principal ingredient of his crime, should (by a forced construction of law) be made use of to stop the mouth of the most material witness against him. An inferior degree of the same kind of offence but not attended with force, is punished by the statutes 4 & 5 Ph. & Mar. c. 8. which enacts, that if any person, above the age of fourteen, unlawfully shall convey or take away any woman child unmarried (which is held (r) to extend to bastards as well as to legitimate children), within the age of sixteen years, from the possession and against the will of the father, mother, guardians, or governors, he shall be imprisoned two years, or fined at the discretion of the justices; and if he deflowers such maid or woman child, or without the consent of parents contracts matrimony with her, he shall be imprisoned five years, or fined at the discretion of the justices, and she shall forfeit all her lands to her next of kin, during the life of her said husband.5 11 Hawk. P. C. 110. m 1 Hal. P. C. 660. 1 Hawk P. C. 109. (4) But if the forcible abduction is confined to one county, and the marriage be solemnized by consent in another, the defendant cannot be indicted in either, though had the force been conti nued into the county where the marriage took place, no subsequent consent would avail. Cro. Car. 488. Hob. 183. Hawk. b. 2. c. 25. s. 40. 1 Russ. 820, 1. 1 East P. C. 453. Where the female is under no restraint at the time of marriage, those who are present, but who are ignorant of the previous circumstances, will not share in the guilt of the abduction. Cro. Car. 489. 493. As to accessories after the fact, see 1 East P. C. 453. 3 Chit Crim. L. 818. 5) It has been decided in the court of exchequer, that she forfeits her lands only during the life of her husband. Amb. 73. Though the more natural construction of the statute seems to be, that the next beir shall retain them during the life of the wife, even after the death of the husband. 1 Brown. 23 Under this act there must have been always a refusal in the parent or guardian to consent to the marriage; and if he once assented, no restriction can do away the effect of his former approval. 3 Mod 169. And if a parent place a daughter under the care of another who, by collusion, marries her to his own son, the case will not be within the act, if the marriage be solemnized in a parish church, at a canonical hour, and without any attempt at privacy 3 Mod. 84. The principle of this case is disputed by Mr. East, who contends, that it would protect a school-mistress in disposing of the female infants under her care, in marriage; when it is manifest no power of that kind is ever deputed, but is impliedly reserved by the pa rent. 1 Fast P. C. 457. A mother, notwithstanding her subsequent marriage, retains the guar So that as these stolen marriages, under the age of sixteen, were usually upon mercenary views, this act, besides punishing the seducer, wisely removed the temptation. But this latter part of the act is now rendered almost useless, by provisions of a very different kind, which [210] make the marriage totally void, (s) in the statute 26 Geo. H. c. 33.6 III. A third offence, against the female part also of his majesty's subjects, but attended with greater aggravations 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 pun. ished 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 con. fiscation 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 every opportunity of offending in this way; whom the Roman law supposes never to go astray, without the seduction and arts 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 women. "Si enim ipsi "raptores metu, vel atrocitate poenae, ab hujusmodi facinore se tempera"verint, nulli mulieri, sive volenti, sive nolenti, peccandi locus relinquetur "quia hoc ipsum velle mulierum, ab insidiis nequissimi hominis, qui medita"tur rapinam, inducitur. Nisi etenim eam solicitaverit, nisi odiosis artibus "circumvenerit, non faciet eam velle in tantum dedecus sese pro "dere.' "" But our English law does not entertain quite such sublime [211] ideas of the honour of either sex, as to lay the blame 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 Ath. elstan, (w) with death: which was also agreeable to the old Gothic or Scandinavian 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 con * See Book I. p. 437, &c. t Deut. xxii. 25. x Stiernh. de jure Sueon. l. 3. c. 2. u Cod. 9. tit. 13. w Bracton, l. 3. c. 28. y LL. Gull. Cong. c. 19. dianship of her child; she has in law the custody of her person, though the daughter has voluntarily left her several hours before the contract of marriage; and the consent of the step-father is altogether immaterial. 3 Co. 39. b. On the general prohibitory clause of this act, an indictment may be supported. 1 East P. C. 459. The mere fact of marriage with an infant without the consent of her parents, seems not to be indictable at common law. See Id. Ibid. Andr. 312. Cro. Car. 465. If, however, this be effected by conspiracy, by false pretences, by deceit, or other criminal practices, the offender may be indicted, or an information filed against him. Id. ibid. As to conspiracies to marry paupers, &c. see ante, 136. n. (19). Chitty. (6) But now by 4 Geo. IV. c. 76. such a marriage would not be void; but means are by thai act pointed out for protecting the child's property tinued 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 maleficium," go to the next town, and there make discovery to some credible persons of the injury she has suf fered 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 Arragon, (b) which require that complaint must be made within twenty-four hours: though af terwards 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 it 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 [212] of rape was much mitigated; the offence itself of ravishing a dam sel within 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. 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 maliria supplet aetatem, as has in some cases been shewn; yet, as to this particular species of felony, the law supposes an imbecility of body as well as mind. (e)1 The civil law seems to suppose a prostitute or common harlot incapable of any injuries of this kind:(f) not allowing any punishment for [213] violating the chastity of her, who hath indeed no chastity at all, or at least hath no regard to it. But the law of England does not a 1 Hal. P. C. 631. a Glan, L. 14. c. 6. Bract. l. 3. c. 28. Bract. 1. S. c. 28. c Glanv. l. 14. c. 6. e i Hal. P. C. 631. b Barrington, 142. d 1 Hal. P. C. 681. f Cod. 9. 9. 22. Ff. 47. 2. 39. (7) But an infant under fourteen may be guilty as an abettor, if shewn to possess a mischievon discretion. 1 Hale, 680. judge so hardly of offenders, as to cut off all opportunity of retreat even from common strumpets, and to treat them as never capable of amendment. It therefore holds it to be felony to force even a concubine or harlot ; be. cause the woman may have forsaken that unlawful course of life : (g) for, as Bracton well observes, (h) " licet meretrix fuerit antea, certe tunc tempo"ris non fuit, cum reclamando nequitiae ejus consentire 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 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 mere. h fol. 147. g 1 Hal. P. C. 629. 1 Hawk. P. C. 103. (8) It is presumed the learned commentator was unwilling to point out what was necessary to constitute this offence, as the commentaries were read in public; but to practise the same reserve here, would leave the work very imperfect. See in general, 3 Chit. Crim. Law, 2 ed. 810. &c. Stark. on Evid. tit. Rape. It has been thought sufficient to constitute the offence to shew penetration alone, while on the other hand it has been contended that the offence is not complete without emission; but it seems to be agreed by all, that the latter without the former, will not suffice. Lord Coke, in his Reports, supposes both circumstances must concur. 12 Cor. 37., though he does not express himself so clearly in his Institutes. Hawkins, without citing any authority or hinting a doubt, declares the same opinion. Hawk. b. 1. c. 41. s. 3. Hale, however, differs from both, and considers the case in Coke's Reports erroneous. 1 Hale, 628. In more modern times, prisoners have been repeatedly acquitted in consequence of the want of proof of emission. 1 East P. C. 437, 8. In one instance, on the other hand, the prisoner was found guilty, under the direction of Mr. Justice Bathurst, who did not consider this fact as necessary to the consummation of the guilt. But, in Hill's case, which was argued in 1781, a large majority of judges decided that both circumstances were necessary, though Buller, Loughborough, and Heath, maintained a contrary opinion. 1 East P. C. 459. 2 Leach, 854. This, then, seems to be the stronger opinion, and, at the present day, if no emission took place, it would be more safe to indict for the attempt to commit, by which means a severe punishment might be in flicted. As to assaults, see post. Any penetration, however trifling, though it do not break the hymen, is sufficient to constitute a rape where there has been an emission, 1 East P. C. 438.; and whether both penetration and emission are necessary to constitute a rape or not, it is certain no direct evidence need be given of the latter, but that it will be presumed on proof of the former, until rebutted by the prisoner. 2 Leach, 854. 1 East P. C. 440. Presumptive evidence is admissible to prove the offence; and if something occurs to create an alarm to a party while he is perpetrating the offence, it may be for a jury to say whether he left the body re infectâ, because of the alarm, or whether he had left it because his purpose was accomplished, Russ. & Ry. C. C. 519.; and where the prosecutrix swore that the prisoner had his will of her, and remained on her body as long as he pleased, but could not speak to emission, it was held sufficient evidence of an actual rape to be left to a jury. East P. C. 440. It is the essential character of this crime, that it must be against the will of the female on whom it is committed. And if a woman be beguiled into her consent by any artful means, it will not be a rape, and therefore having carnal knowledge of a married woman, under circumstances which induced her to suppose it was her husband, was held by a majority of judges not to be a rape. Russ. & Ry. C. C. 487. However, the crime is not mitigated by shewing that the woman yielded, at length, to violence, if her consent was obtained by duress or threats of murder, Hawk. b. 1. c. 41. s. 6.; nor will any subsequent acquiescence on her part do away the guilt of the ravisher; and it is no defence to shew that the prosecutrix was taken at first with her own consent, if she was afterwards forced against her will, East P. C. 444. Cro. Car. 485.; as above shewn in the text. The circumstance of the woman's generally submitting to illicit intercourse, will not diminish the guilt of her ravisher, because she is still under the protection of the law, and must not be deprived of the opportunity of repentance. Hawk. b. 1. c. 41. s. 7. Formerly it was said to be no rape for a man to have forcible knowledge of his own concubine, 1 Hale, 628. Hawk. b. 1. c. 41. s. 7.; but the law now presumes the possibility of her return to virtue. 1 Hale, 628. A man cannot, indeed, be himself guilty of a rape on his own wife, for the matrimonial consent cannot be retracted, 1 Hale, 629.; but be may be criminal in aiding and abetting others in such a design. 1 Harg. St. Tr. 588. All who are present, of both sexes, aiding in the perpetration of rape, are principals in the second degree. Hawk. b. 1. c. 41. s. 10. In rape there may be accessories both before and after the fact; for even if, according to Hale, it was made felony by statute, as the act is silent respecting accessories, it must have all the accompaniments of felony at common law. 1 Hale, 631, 2. In Rex. v. Burgess and others, Chester Spring Assizes, 1813, Burn, J. 24th edit. 5. 5 Evans, Coll. Stat. Cl. 5. p. 244., upon an indictment charging three persons jointly, with the commission of a rape, an objection was taken that three persons could not be guilty of the same joint act, but VOL. H. 68 |