ly add upon this head a few remarks from sir Matthew Hale: with regard to the competency and credibility 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 circumstances 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 might have been heard, [214] 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 G. 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 : i 1 Hal. P. C. 634. it was overruled, on the ground that the legal construction of the averment was only that they had done such acts as subjected them to be punished as principals in the offence. Chilty. (9) 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, inust yield, when they appear to be unsafe guides to the discovery of truth. The state and appearance of the prosecutrix, marks of violence 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 admissible 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 from 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. In order to shake the credibility of the prosecutrix's testimony, her character for chastity may be impeached by general evidence; Hodgson's case, Stark. on Evidence, part iv. 1269. n. even although the defendant has not attempted to impeach the prosecutrix's character for chastity on cross examination; 2 Stark. 241.; but evidence of particular facts for this purpose is inadmissible, and the woman is not compelled to answer whether she had not connexion with other men, or with a particular person named. Russ. & Ry. C. C. 211. The prisoner may, however, shew that the prosecutrix has been previously criminally connected with himself. Stark. on Evidence, part iv. 1270. Where the general character of the prosecutrix for honesty has been impeached by cross examination as to particular facts, evidence of subsequent good conduct is admissible on the part of the prosecutrix. 2 Stark. 241. Chitty. (10) 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. Bac. Ab. Evid. a. Leach, 430. n. 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. "It is true, says this learned judge, (j) that rape is a most detest. [215] "able crime, and therefore ought severely and impartially to be pu"nished 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 in"stances, 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 overhastily carried on to the conviction of the person ac"cused thereof, by the confident testimony of sometimes false and ma"licious witnesses." IV. What has been here observed, especially with regard to the manner of proof, which ought to be the 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 crime 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; (1) " ubi scelus est id, quod non proficit scire, “jubemus insurgere leges, armari jura gladio ultore, ut exquisitis po- [216] "enis subdantur infamis, qui sunt, vel qui futuri sunt rei.” 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) j lbid. 635. k See in Rot. Parl. 50 Edw. III. n. 58. a complaint, that a Lombard did commit the sin, "that was not to be named." (12 Rep. 37) 1 Cod. 9. 9. 31. m Levit. xx. 13. 15. (11) As to the decisions, see 1 East P. C. 480. 437. Bac. Ab. Sodomy. Hawk. b. 1. c. 4. 1 Hale, 669, 670. Com. Dig. Justices, s. 4. Russ. & Ry. C. C. 331. Quære, if this offence is within the 25 Hen. VIII. c. 6. when committed on a woman. Fost. 91. If committed on a boy under fourteen, it is felony in the agent only. 1 Hale, 470. 3 Co. Inst. 59. As to sending threatening letters, charging a party with this offence, see ante, 144. n. (4). As to offence of soliciting another to commit the offence, see 2 East, 5. 1 determined 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 an universal, not merely a provincial precept. And our ancient law in some degree imitated this punishment, by commanding such miscreants to be burnt to death; (n) though Fleta (o) says they should be buried alive; either of which punishments was indifferently used for this crime among the ancient 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 poena plectantur. (q) These are all the felonious offences more immediately against the personal security of the subject. The inferior offences, or misdemesnors, 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 wrongs, 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 to commit either of the crimes [219] 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 an 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 fines and imprisonment, it is usual to award judgment of the pillory.13 n Britt. c. 9. q 8 Inst. 50. o l. 1. c. 37. p Stiernh. de jure Goth. l. 3. c. 2. (12) See in general 3 Chit. C. L. 821. n. And as to what constitutes an assault and what a battery, see ante, 3 book, 120. Making a female patient strip naked, under the pretence that the defendant, a medical man, cannot otherwise judge of her illness, if he himself takes off her clothes, is an assault, and indictable as such, 1 Ry. & Moody C. C. 19. sed quære; and if a master take indecent liberties with a female scholar without her consent, though she does not resist, he is liable to be punished as for an assault, Russ. & Ry. C. C. 130.; and see further as to what constitutes an assault or battery, Corn. Dig. Battery; Bac. Ab. Assault and Battery; ante, 3 book, 120. (13) 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 edit. 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 inflicted, if the prosecutor declares himself satisfied; post, 363, 4. 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 court would abate the period of his imprisonment, the security was held to be good, upon the ground 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. 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 praemunire. (1) But suits are, and always were, allowable in the spiritual court, for money agreed to be given as a commutation 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 the special damage sustained by the party injured; and a suit in the ecclesiastial court, first, pro correc- [218] tione et salute animae, by enjoining penance, 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 gene. rally esteemed by the moralists the best medicine pro salute animae. VIII. The two remaining crimes and offences, against the persons of his majesty's subjects, are infringements of their natural liberty: concern. ing the first of which, false imprisonment, its nature and incidents, I must content myself with referring the student to what was observed in the pre. ceding book, (w) when we considered it as a mere civil injury. But besides the private satisfaction given to the individual by action, the law also demands public vengeance for the breach of the king's peace, for the loss which the state sustains by the confinement of one of its members, and for the infringement of the good order of society. We have seen be. fore, (x) that the most atrocious degree of this offence, that of sending any subject of this realm a prisoner into parts beyond the seas, whereby he is deprived of the friendly assistance of the laws to redeem him from such his captivity, is punished with the pains of praemunire, and incapacity to hold any office, without any possibility of pardon. (y) And we may also add, that by statute 43 Eliz. c. 13. to carry any one by force out of the four northern counties, or imprison him within the same, in order to ran som him or make spoil of his person or goods, is felony without benefit of clergy, in the principals and all accessories before the fact. Inferior degrees of the same offence, of false imprisonment, are also punishable by indictment (like assaults and batteries) and the delinquent may be fined and imprisoned. (z) And indeed (a) there can be no doubt, but that all kinds of crimes of a public nature, all disturbances of the peace, all op. pressions and other misdemesnors whatsoever of a notoriously evil example, may be indicted at the suit of the king. t 2 Inst. 492, 620. v 2 Roll. Rep. 384. y Stat. 31 Car. II. c. 2. u Artic. Cler. Edw. II. c. 4. F. N. B. 53. x See pag. 116. 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. [219] IX. The other remaining offence, that of kidnapping, being the forcible abduction or stealing away of a man, woman, or child, from their own country, and sending them into another, was capital by the Jewish law." He that stealeth a man, and selleth him, or if he be found in "his hand, he shall surely be put to death." (b) So likewise in the civil law, the offence of spiriting away and stealing men and children, which was called plagium, and the offenders plagiarii, was punished with death. (c) This is unquestionably a very heinous crime, as it robs the king of his subjects, banishes a man from his country, and may in its consequences be productive of the most cruel and disagreeable hardships; and therefore the common law of England has punished it with fine, imprisonment, and pillory." And also the statute 11 & 12 W. III. c. 7., though principally intended against pirates, has a clause that extends to prevent the leaving of such persons abroad, as are thus kidnapped or spirited away; by enacting, that if any captain of a merchant vessel shall (during his being abroad) force any person on shore, or wilfully leave him behind, or refuse to bring home all such men as he carried out, if able and desirous to return, he shall suffer three months' imprisonment.15 And thus much for offences that more immediately affect the persons of individuals. c Ff. 49. 15. 1. b Exod. xxi. 16. d Raym. 474. 2 Show, 221. Skin. 47. Comb. 10. (14) Pillory is now abolished by the 56 Geo. III. c. 158. Where a child is stolen for the sake of its clothes, it is the same species of felony, as if the clothes were stolen without the child. But it cannot be considered a felony, where a child is stolen and not deprived of its clothes. This crime would in general be an aggravated species of false imprisonment; but, without referring it to that class of offences, stealing a child from its parents is an act so shocking and horrid, that it would be considered the highest misdemeanor, punishable by fine and imprisonment, upon the same principle on which it was decided to be a misdemeanor, to steal a dead body from a grave. Child Stealing is provided against by a recent act, viz. the 54 Geo. III. c. 101. as follows; viz. " that if any person shall maliciously, by force or fraud, lead, take, or carry away, or decoy or entice away, any child under the age of ten years, with intent to deprive its parent, or any other person having the lawful care or charge of such child, of the possession of such child, by concealing or detaining such child from such parent or other person having the lawful care or charge of it, or with intent to steal any article of apparel or ornament, or other thing of value or use, upon or about the person of such child, to whomsoever such article may belong, or shall receive or harbour with any such intent any such child, knowing the same to have been so by force or fraud, led, taken, or carried, or decoyed, or enticed away as aforesaid, every such person, and his counsellors, procurers, aiders, and abettors, shall be guilty of felony, and be subject to all such punishments, &c. as may be inflicted upon persons convicted of grand larceny." The second section provides, "that nothing in the act shall extend to any person who shall have claimed to be the father of an illegitimate child, or to have any right or title in law, to the possession of such child, on account of his getting possession of such child, or taking such child out of the possession of the mother thereof, or other person or persons having the lawful charge thereof.” And the third section provides that the act shall not extend to Scotland. Chitty (15) See the 58 Geo. III. c. 38. as to the mode of prosecuting this offence. |