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 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, being won thereunto by flatteries after the taking, yet this is felony, if the first taking were against her will (n) (7): and so vica 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, [*209] she may from that time as properly be said to be taken against

her will, as if 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 (8).

(2) 1 Hawk. P. C. 110.

(m) 1 Hal. P. C. 660. 1 Hawk. P. C. 109. (n) 1 Hal. P. C. 660.

(0) 1 Hawk. P. C. 110.

sent or future, absolute, conditional or contingent, in any real or personal estate, or shall be an heiress presumptive, or next of kin to any one having such interest, if any person shall, from motives of lucre, take away or detain such woman against her will, with intent to marry or defile her, or to cause her to be married or defiled by any other person, every such offender, and every person counselling, aiding, or abetting such offender, shall be guilty of felony, and being convicted thereof, shall be liable to be transported for life, or for any term not less than seven years, or to be imprisoned, with or without hard labour, for any term not exceeding four years (6).

(6) Any person who takes a female under the age of fourteen from her father, mother, guardian, or other person having the legal charge of her person without their consent, either for the purpose of prostitution, concubinage, or marriage, may be imprisoned not more than three years, and fined not more than 1000 dollars. If any woman, though above that age, be taken by any one unlawfully, with the intent to compel her by force, menace, or duress, to marry him or another, or to be defiled: the offender may be imprisoned not less than ten years. The punishment is the same if the offence be consummated by procuring the marriage or defilement. 2 R. S. 663, ◊ 24, 25, 26. The woman, it will be perceived, need not be an heiress; nor is it necessary that the

offence be committed for the sake of gain.

(7) But if the forcible abduction is confin ed to one county, and the marriage be solem nized by consent in another, the defendant cannot be indicted in either, though had the force been continued 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 accessaries after the fact, see 1 East, P. C. 453. 3 Chit. Crim. L. 818.

(8) It seems to be well agreed, and indeed to be beyond all doubt, that where a woman is taken away and married by force, she is a competent witness against her husband, on an indictment for that offence. See Phil. Ev. 3d ed. 70, and the authorities there cited. But the proposition that, where she consents to the marriage, after a forcible abduction, her evidence is equally admissible, seems to admit of some doubt. In the last case of this kind, Wakefield's, both the abduction and the mar riage were in fact voluntary, the lady's con. sent to both having been obtained by fraud; but it was held that the fraud in law amounted to force, and the lady was, upon that ground it is conceived, admitted as a witness against

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 (9). 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 make [210] the marriage totally void (s), in the statute 26 Geo. II. c. 33. (10).

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 con

(r) Stra. 1162.

(s) See Book I. page 437, &c.

the husband. A doubt afterwards arose whether the marriage in that case was valid or not, which led to the bringing in a bill to annul it; though the prevailing opinion among the profession seemed to be, that the marriage was ipso facto void, as a marriage procured by force in which view of the case, the admission of the wife's evidence would not be an authority upon the question one way or the other. One account of that trial states, that Hullock, B., declared, that even assuming the marriage to be valid, he would admit the wife's evidence, for there were cases in which the evidence of wives was admissible against their husbands, and he considered that to be one of them. And upon the principle that a woman may give evidence against her husband in the case of a personal wrong done to herself, it does seem that the wife would be a competent witness in a prosecution for abduction, even though the marriage was valid.

(9) This Act of 4 and 5 P. and M. c. 8, is wholly repealed by the 9 Geo. IV. c. 31; section 20 of which enacts, that if any person shall unlawfully take, or cause to be taken, any unmarried girl, being under the age of sixteen years, out of the possession and against the will of her father or mother, or of any other person having the lawful care or charge of her, every such offender shall be guilty of a misdemeanor, and being convicted thereof, shall be liable to suffer such punish

(1) Deut. xxii. 25.
(u) Cod. 9, tit. 13.

ment, by fine or imprisonment, or by both, as the court shall award. This clause was framed for the purpose of meeting such a case as that of Wakefield.

(10) 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 entertained upon the point among the profession, (see Doe v. Price, 1 M. and 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 nonconsent of parents. See Rex v. Birmingham, 2 M. and R., 8 B. and C. 29, and the judgment of Lord Tenterden therein. The new Act, however, provides, section 23, that if any valid marriage solemnized by licence 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 shew 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.

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 temperaverint, nulli mulieri, sive volenti, sive nolenti, peccandi locus relinquetur; quia hoc ipsum

velle mulierum, ab insidiis nequissimi hominis, qui meditatur rapinam, [*211] 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 (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 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 maleficium," go to the next town, and there make discovery to some credible persons 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 Arragon (b), 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 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.

[*212]

*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 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 of

(w) Bracton, 1. 3, c. 28.

(z) Stiernh. de jure Sueon. 1. 3, c. 2

(y) LL. Gull Conq. c. 19.

(3) 1 Hal. P. C. 631.

(a) Glan. 1. 14, c. 6.
(b) Barrington, 142.
(c) Glanv. 1. 14, c. 6.

Bract. 1.3, c. 28.

Bract. 1. 3, c. 28.

fender only to two years' imprisonment, and a fine at the kings'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 (11). 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 (12).

A male infant, under the age of fourteen years, is presumed by law incapable to commit a rape, and therefore its seems cannot be found guilty of it. For though in other felonies malitia 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) (13).

The civil law seems to suppose a prostitute or common harlot incapable of any injuries of this kind (f): not allowing any pu- [213] nishment for 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 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 ; because the woman may have forsaken that unlawful course of life (g): for, as Bracton well observes (h), " licet meretrix fuerit antea, certe tunc tem poris 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 (14). I shall there

(d) 1 Hal. P. C. 631.

(e) Ibid.

(f) Cod. 9. 9. 22. Ff. 47. 2. 39.

(11) In New-York these two offences are punished by imprisonment not less than ten years. The carnal knowledge of a woman above the age of ten without her consent, by administering to her any substance or liquid as will prevent effectual resistance, is punished with imprisonment not exceeding five years. (2 R. S. 663, 22, 23.)

(12) All these statutes are repealed by 9 Geo. IV. c. 31, which enacts, section 16, that every person convicted of the crime of rape shall suffer death as a felon.

Section 17, that if any person shall unlawfully and carnally know and abuse any girl under the age of ten years, every such offender shall be guilty of felony, and being convicted thereof, shall suffer death as a felon: and VOL. II.

70

(g) 1 Hal. P. C. 629. 1 Hawk. P C. 108.
(h) fol. 147.

if any person shall unlawfully and carnally know and abuse any girl, being above the age of ten years, and under the age of twelve years, every such offender shall be guilty of a misdemeanor, and being convicted thereof, shall be liable to be imprisoned, with or with out hard labour, for such term as the court shall award.

And sect. 18 enacts that the carnal knowledge shall be complete upon proof of penetration only.

See also 2 R. S. 735, § 18.

(13) But an infant under fourteen may be guilty as an abettor, if shewn to possess a mischievous discretion. 1 Hale, 630. (14) See Chitty, Crim. law, 810. Stark on

Evid.

fore merely 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, and she made [*214] no outcry; these and the like circumstances carry a strong but not conclusive presumption that her testimony is false or feigned (15), (16).

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 (17). Nay, though she hath not, it is thought by sir Matthew Hale (1) 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

(i) 1 Hal. P. C. 634.

(15) 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 violence upon her person, and the torn and disordered state of her dress recently after the transac tion, 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 for an attempt to commit a rape upon an adult, Holroyod, 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.

(16) It has been held, by a majority of the judges, that having carnal knowledge of a married woman, under circumstances which induce her to suppose it is her husband, does not amount to the crime of rape. Rexv. Jack son, R. & R. C. C. 497. That decision took

place in Trinity term, 1822; and though it may not hitherto have been expressly overrul ed, it seems very doubtful whether it would now be supported. At the Kent Winter Gaol Delivery, in the very same year, a similar case occurred. Rex r. Pearson, in which, upon the prosecutrix swearing that she believed the prisoner to be her husband, and consequently made no resistance, the editor, as counsel for the prisoner, objected that the offence was not rape and that the indictment could not be supported. But Bayley, I., refused to stop the prosecution, intimating his own strong opinion that such facts did amount to rape, and declaring his intention to reserve the point for the opinion of the twelve judges, if it should be necessary; which, however, was not the case, the prisoner being acquitted on the merits. The only plausible ground for contending that such an offence does not amount to rape, seems to be, the total absence of force on the part of the man, and of resist ance on the part of the woman; but that does not appear to be a solid or well-founded argu ment; because the fraud practised would, by construction of law, be considered as force, as in Wakefield's case of abduction, ante, 209, notes (7) and (8), and in other cases that might be mentioned, and would thus support the ne cessary allegation of force in the indictment.

(17) 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.