Moreover, if the rape be charged to be committed on an infant under twelve years of age, she may stili 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 Mathew 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. *"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 punished with death; but it must be remembered that it is an accusation easy to make, 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 overhastily carried to the conviction of the person accused thereof, by the confident testimony sometimes of 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 crim 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 given seems to be admissible, for it is of the highest importance to ascertain the accuracy of her recollection. 1 East, P. C. 443; Stark. on Evidence, part iv, 1268.] The complaint made by the person alleged to have been ravished, immediately after the occurrence, cannot be put in as independent evidence, to show who were the persons who committed the offence, even though she be since deceased. Rex v. Megson, 9 C. and P. 420; and see People v. McGee, 1 Denio, 19. It has been held that rape is not committed where the woman's consent is obtained by fraud. she at the time supposing the man to be her husband. Rex v. Jackson, Russ. and Ry. 487; Reg. v. Saunders, 8 C. and P. 265; Reg. v. Williams, id. 286; State v. Murphy, 6 Ala. 765; Wyatt v. State, 2 Swan, 394. But this has been doubted. People v. Metcalf, 1 Wheel. C. C. 378 and note, 381; State v. Shepard, 7 Conn. 54. Carnal knowledge of the person of a woman, unaccompanied with any circumstance of force or fraud, is not rape, though the woman may have been at the time mentally incompetent to give consent. Croswell v. People, 13 Mich, 427. 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:(7) "ubi scelus est id, quod non proficii scire, jubemus insurgere *[216] leges armari jura gladio ultore, ut exquisitis pœnis subdantur infames qui sunt, vel qui, futuri sunt rei." Which leads me to add a word concerning its punish ment. This the voice of nature and of reason, and the express law of God, (m) 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 pæna plectantur.(q) (8) These are all the felonious offences more immediately against the personal security of the subject. The inferior offences or misdemeanors, that fall under this head, are assaults, batteries, wounding, false imprisonment, and kid napping.(9) 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 considered 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 [*217] 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 intent to murder, or, with an intent 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.(10) 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 (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. (m) Levit. xx, 13, 15. (n) Britt. c. 9. (o) l. 1. c. 37. !r) See book III, page 120. (l) Cod. 9. 9. 31. (8) 1 Hawk. P. Č. 65. (p) Stiernh. de jure Goth. 1. 3, c. 2. (g) 3 Inst. 59. (8) As to this offence see statute 24 and 25 Vic. c. 100, s. 61, which makes it punishable by penal servitude for life, or for any term not less than ten years. 1027; Ros. Cr. Ev. 871; 1 Russ. on Cr. 698. (9) See, as to these offences, statute 24 and 25 Vic. c. 100. (10) This punishment is abolished. And see 2 Bish. Cr. L. P 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 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 kind 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 ecclesiastical court, first, pro correctione et salute animæ, 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 [*218] their spiritual censures for a round compensation in money; (") perhaps because poverty is generally esteemed by the moralists the best medicine pro salute animæ.(11) 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 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 before, (c) 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 præmunire, 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 ransom 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 oppressions, and other misdemeanors whatsoever of a notoriously evil example, may be indicted at the suit of the king. *IX. The other remaining offence, that of kidnapping, being the [*219] 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.(d) And also the statute 11 and 12 Wm. III, c. 7, though principally intended against pirates, has a clause that extends (u) Arctic. Cler. Edw. II, c. 4. F. N. B. 53. (t) 2 Inst. 492, 620. (0) Roll. Rep. 384. (11) The punishment is now imprisonment not exceeding two years. Statute 24 and 25 V10c. 100, § 36. 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 month's imprisonment. (12) And thus much for offences that more immediately affect the persons of individuals. CHAPTER XVI. OF OFFENCES AGAINST THE HABITATIONS OF INDIVIDUALS. THE only two offences that more immediately affect the habitations of individuals or private subjects, are those of arson and burglary. 1. Arson, ab ardendo, is the malicious and wilful burning the house or outhouse of another man. This is an offence of very great malignity, and much more pernicious to the publ.c than simple theft: because first, it is an offence against the right of habitation, which is acquired by the law of nature as well as by the laws of society; next, because of the terror and confusion that necessarily attend it; and, lastly, because in simple theft the thing stolen only changes its master but still remains in esse for the benefit of the public, whereas by burning the very substance is absolutely destroyed. It is also frequently more destructive than murder itself, of which, too, it is often the cause: since murder, atrocious as it is, seldom extends beyond the felonious act designed; whereas fire too frequently involves in the common calamity persons unknown to the incendiary, and not intended to be hurt by him, and friends as well as enemies. For which reason the civil law (a) punishes with death such as maliciously set fire to houses in towns, and contiguous to other; but is more merciful to such as only fire a cottage, or house, standing by itself. (1) (a) Ff. 48, 19, 28, § 12. (12) See statute 24 and 25 Vic. c. 100, for the punishment of abduction and kidnapping. Also, statute 17 and 18 Vic. c. 104, for the punishment of wilfully and wrongfully leaving persons abroad. (1) The English statutes on this subject were revised and consolidated in 24 and 25 Vic. с 97. Section 1 makes it felony, punishable with penal servitude for life, or for any term not less than three years, or with imprisonment not more than two years, with or without whipping, if the offender be a male over sixteen years of age, to set fire, unlawfully and maliciously, to any church, chapel, meeting-house or other place of divine worship. Section 2 imposes the like punishment for setting fire to a dwelling-house, any person being therein. Section 3 imposes the like punishment for setting fire to any house, stable, coach-house, outhouse, warehouse, office, shop, mill, malt-house, hop-oast, barn, storehouse, granary, hovel, shed or fold, or to any farm building, or to any building or erection used in farming land, or in carrying on any trade or manufacture, whether in possession of the offender or not, with intent to injure or defraud any person. And by subsequent sections the unlawfully and maliciously setting fire to buildings belonging or appertaining to railways, ports, docks, harbors, or canals, or to public buildings, or "to any buildings other than such as are in this act before mentioned," or to any thing in, against or under a building, under such circumstances that, if the building were thereby set fire to, the offence would be felony, or to crops of hay, grass, corn, grain or pulse, or of any cultivated vegetable produce, standing or cut, or to any wood, coppice or plantation of trees, or to any heath, gorse, furze, or fern, or to stacks of hay, grain, straw, coal, peat, wood, &c., or to coal mines, or to ships or vessels, is also made felony. Attempts to burn the like buildings or property are also provided for by the same act; and, by section 58, it is not essential to any of these offences that they should be committed from the malice conceived against the owner of the property. *Our English law also distinguishes with much accuracy upon this [ *221] crime. And therefore we will inquire, first, what is such a house as may be the subject of this offence; next, wherein the offence itself consists, or what amounts to a burning of such house; and, lastly how the offence is punished. 1. Not only the bare dwelling-house, but all outhouses that are parcel thereof, though not contiguous thereto, nor under the same roof, as barns and stables, may be the subject of arson. (b) And this by the common law; which also accounted it felóny to burn a single barn in the field, if filled with hay or corn, though not parcel of the dwelling-house. (c) The burning of a stack of corn was anciently likewise accounted arson. (d) And indeed all the niceties and distinctions which we meet with in our books, concerning what shall, or shall not, amount to arson, seem now to be taken away by a variety of statutes; which will be mentioned in the next chapter, and have made the punishment of wilful burning equally extensive as the mischief. The offence of arson (strictly so called) may be committed by wilfully setting fire to one's own house, provided one's neighbour's house is thereby also burnt; but if no mischief is done but to one's own, it does not amount to felony, though the fire was kindled with intent to burn another's. (e) For by the common law no intention to commit a felony amounts to the same crime; though it does, in some cases, by particular statutes. However, such wilful firing one's own house, in a town, is a high misdemeanor, and punishable by fine, imprisonment, pillory, and perpetual sureties for the good behaviour. (f) (2) And if a landlord or reversioner sets fire to his own house, of which another is in possession under a lease from himself, or from those whose estate he hath, it shall be accounted arson; for during the lease the house is the property of the tenant. (g) (3) *2. As to what shall be said to be a burning, so as to amount to arson, [ *222] a bare intent, or attempt to do it, by actually setting fire to a house, unless it absolutely burns, does not fall within the description of incendit et combussit; which were words necessary, in the days of law-latin, to all indictments of this sort. But the burning and consuming of any part is sufficient; though the fire be afterwards extinguished. (h) Also, it must be a malicious burning: otherwise it is only a trespass: and, therefore, no negligence or mischance amounts to it. (4) For which reason, though an unqualified person, by (b) 1 Hal. P. C 567. (c) 3 Inst. 69. (2) [It has been decided that an attempt, or preparation, by a man to set fire to his own" house in a town, though the fire be never kindled, is a misdemeanor. And that every attempt to commit a felony is a misdemeanor; aud, in general, an attempt to commit a misdemeanor is an offence of the same nature. Cald. 397; 6 East, 464; 1 Wils. 139. So also an incitement or solicitation to commit a crime is a misdemeanor. R. v. Higgins, 2 East, 5. Voluntas reputatur pro facto is still true, both in treason and misdemeanor; but the intention in both must be manifested by an open act. Men cannot be punished by the law for the thoughts of the mind, however wicked they may be even a resolution to commit high treason, evidenced only by a confession, without any attempt to carry it into effect, is not punishable by the law of England. The principle of these cases is well illustrated by Lord Coke, who, after treating of single combats and affrays, says, "if any subject challenge another to fight, this is also an offence, before any combat be performed and punishable by law, for quando aliquid prohibetur, prohibetur et omne, per quod devenitur ad illud." 3 Inst. 158. And, therefore, he who carries the challenge, knowing that it is a challenge, is also guilty of a misdemeanor: and he who designedly attempts to provoke another to fight or to send a challenge, is guilty of the same offence.] (3) See 2 Bish. Cr. L. § 24. It is usual to provide by statute that the burning one's own house with intent to defraud shall be felony. (4) [The term malice, in this case as in many others, does not merely imply a design to injure the party who is eventually the sufferer, but an evil and mischievous intention, however general, producing damage to individuals. For if a man has a design to burn one house, and Fy accident the flames destroy another, instead of that against which his contrivance was directed, he will be guilty of maliciously burning the latter. 1 Hale, 569; Hawk. b. 1, c. 39, s. 5. The maxim malitia supplet ætatem applies to this as well as to other cases: for Lord |