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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 [215] detestable crime, and therefore ought severely and impartially to be punished 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 offenses 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 offense 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 of sometimes false and malicious witnesses."12

ral crimes.

IV. What has been here observed, especially with regard to IV. Unnatathe manner of proof, which ought to be the more clear in proportion as the crime is the more detestable, may be applied to another offense 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 offense 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.

j 1 Hal., P. C., 635.

(12) Another felonious offense against women, created by statute since the publication of the Commentaries, is that of attempting by injurious means to procure abortion. The stat. 1 Vict., c. 85, s. 6, enacts, that whosoever, with intent to procure the miscarriage of any woman, shall unlawfully administer to her, or cause to be taken by her, any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony, and, on conviction, liable to be transported for life or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years. The repealed statutes,

43 Geo. III., c. 58, and 9 Geo. IV., c.
31, s. 14, contained provisions applica-
ble respectively to women
"quick,"
and not quick, "with child ;" and, there
fore, to constitute an offense within those
acts, it must have appeared that the wom-
an was in fact pregnant at the time. 1
Mood., C. C., 216; 3 C. & P., 605. The
words of the present statute are more
general," with intent to procure the mis-
carriage of any woman;" and it would
seem to be immaterial whether she was
or was not pregnant at the time; although
this opinion has been controverted in a
learned work. 1 Russ., 573, n. (j), (3d
edit.).

The same offense is created by statute in New York, and declared to be manslaughter in the second degree, subjecting the offender to imprisonment in a state prison for a term, in the discretion of the court, not exceeding seven years. (See ante, p. 202, n. *.)

VOL. IV.

P

225

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 men. tion 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 [216] scire, jubemus insurgere leges, armari jura gladio ultore, ut exquisitis pænis subdantur infames, qui sunt, vel qui futuri sunt rei." Which leads me to add a word concerning its punishment.

Misdemean

ors are,

66

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 a universal, not merely a provincial, precept. And our ancient law in some degree imitated this punishment, by commanding such miscreants to be burned to death;n though Fleta says they should be buried alive, either of which punishments was indifferently used for this crime among the ancient Goths. But now the general punishment of all felonies is the same, namely, by hanging, and this offense (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 pœna plectantur.¶

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

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(13) As to the decisions, see 1 East, P. C., 480, 437; Bac. Abr., Sodomy; Hawk., b. 1, c. 4; 1 Hale, 669, 670; Com. Dig., Justices, s. 4; Russ. & Ry., C. C., 331. Quære, if this offense is within the 25 Hen. VIII., c. 6, when committed on a woman. Fost., 91. [The stat. 9 Geo. IV., c. 31, s. 25, which makes the offense punishable, as before, with death, describes it as "the abominable crime of buggery, committed ei

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ther with mankind or with any animal." See 8 C. & P., 604.] If committed on a boy under fourteen, it is felony in the agent only. 1 Hale, 470; 3 Inst., 59. As to sending threatening letters, charging a party with this offense, see ante, 144, n. As to the offense of soliciting another to commit the crime [which is an indictable misdemeanor], see 2 East, 5.-[CHITTY.]*

*As to the degree of proof, no more is required than in the case of rape.-(2 R. S., 735, § 18.) The punishment is imprisonment in a state prison for ten years.-(2 Id., 689, § 20.)

Assaults,

V., VI., VII. With regard to the nature of the first three of V, VI, VII. these offenses in general, I have nothing further to add to what batteries, has already been observed in the preceding book of these Com- wounding. mentaries; 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 peace, an affront to his government, and a damage done to his subjects, they are also indictable and punishable with fine and imprisonment; or with other ignominious corporeal penalties, where they are committed with any very atrocious design. As in case of an assault with an intent to murder, or with an intent to commit either of the crimes last spoken [217] of; for which intentional assaults, in the last two 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,

See vol. iii., page 120.

(14) See, in general, 3 Chit., Crim. L., 821, n. And as to what constitutes an assault and what a battery, see ante, vol. iii., p. 120. Making a female patient strip naked, under the pretense that the defendant, a medical man, can not otherwise judge of her illness, if he himself takes off her clothes, has been held to be an assault, and indictable as such, 1 Mood., C. C., 19; sed quere; 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.

There are various legislative enactments as to assaults on particular persons, and in particular places, &c. Several of these have been considered; as assaults in the king's palace, or in a court of justice, ante, 125; on constables, ante, 129; in rescues, ante, 131; on revenue officers, ante, 155; on commissioners of taxes, ante, 158. We will now refer to certain other statutory provisions relative to assaults, some of which have not been already mentioned, and which will not conveniently find a place in other parts of this volume:

1 Hawk., P. C., 65.

ecution of his duty, or upon any person
acting in aid of such officer; of any as-
sault upon any person with intent to re-
sist or prevent the lawful apprehension
or detainer of any party so assaulting, or
of any other person, for any offense for
which he or they may be liable by law
to be apprehended; or of any assault
committed in pursuance of any conspir-
acy to raise the rate of wages; in any
such case the court may sentence the of
fender to be imprisoned, with or with-
out hard labor, for any term not exceed-
ing two years, and may also (if it shall
so think fit) fine the offender, and re-
quire him to find sureties to keep the
peace.

Assaults with intent to rob will be
considered hereafter (post, p. 244).

The 7 & 8 Geo. IV., c. 29, s. 29, subjects to the like punishment as in the case of simple larceny, persons who, in the unlawful pursuit of deer, shall beat or wound any person intrusted with the care of the deer, or any of his assistants, in the execution of any of the powers given them by the act, for the apprehension and discovery of such offenders. And the 9 Geo. IV., c. 69, s. 2, makes The 9 Geo. IV., c. 31, s. 25, enacts, persons who, in the unlawful pursuit of that where any person shall be charged game in private land, shall assault or of with or convicted of any of the follow- fer any violence with any gun, crossing offenses, as misdemeanors; that is to say, of any assault with intent to commit felony; of any assault upon any peace officer or revenue officer in the due ex

bow, fire-arms, bludgeon, stick, club, or
other offensive weapon whatsoever, to-
ward any person thereby authorized to
seize and apprehend such offenders (see

besides heavy fine and imprisonment, it is usual to award judgment of the pillory."

ante, p. 199, n. (21),) guilty of a misdemeanor, and liable, on conviction, to be transported for seven years, or imprisoned and kept to hard labor for any term not exceeding two years.

quittal also of the assault included in it; and it was necessary, although the assault were proved, to proceed against the party by another indictment for the misdemeanor. But now, by the 11th secThe 9 Geo. IV., c. 31, s. 24, subjects tion of the act now in force relating to any person who shall assault and strike felonious attempts to murder, &c., 1 or wound any magistrate, officer, or oth- Vict., c. 85, it is provided that on the er person whatsoever lawfully author- trial of any person for any of the offensized, on account of the exercise of his es therein before mentioned, or for any duty in or concerning the preservation felony whatever, where the crime charg of any vessel in distress, or of any ves- ed shall include an assault against the sel, goods, or effects wrecked, stranded, person [as forcible abduction, rape, sodor cast on shore, or lying under water, omy, robbery, &c., &c.], it shall be lawto transportation for seven years, or im- ful for the jury to acquit of the felony, prisonment, with or without hard labor, and to find a verdict of guilty of assault for such term as the court shall award. against the person indicted, if the eviAnd the 1 Vict., c. 89, s. 7, further en- dence shall warrant such finding; and acts, that whosoever shall by force pre- when such verdict shall be so found, vent or impede any person endeavoring the court shall have power to imprison to save his life from any ship or vessel the person so found guilty of an assault which shall be in distress, wrecked, for any term not exceeding three years stranded, or cast on shore (whether he shall be on board or shall have quitted the same), shall be guilty of felony, and, upon conviction, liable to transportation for life, or not less than fifteen years, or imprisonment for any term not exceed ing three years.

(to which imprisonment hard labor may be added; 2 Mood., C. C., 40; 8 C. & P., 286, 654). This clause applies retrospectively to offenses committed before its passing; 8 C. & P., 167; and has been considered applicable, even though the jury negatived the intent to The 26th section of the same statute commit any felony; Id., 654, sed quære. (9 Geo. IV., c. 31) subjects to imprison- But it is not applicable to cases of injument for not exceeding three calendar ry to the person which do not involve months, on summary conviction before the use of an adverse force; thus, on an two justices of the peace, persons forci- indictment for carnally abusing a child bly hindering "any seaman, keelman, or caster" from working at his trade; or beating, wounding, or using any other violence to him, with intent to deter him from doing so; or beating, &c., any person, with intent to hinder him from buying or selling wheat, &c., in any market or other place, or having the charge thereof while on its way to or from any city, market, town, or other place, with intent to stop the conveyance of the same.

Until a recent enactment, upon an indictment for any felony which included an assault against the person, an acquittal of the felony was of course an ac

under ten years of age, if consent on her part appear, the defendant can not be convicted under this statute of an assault. 8 C. & P., 574, 589; 9 C. & P., 722. So a person indicted for bestiality can not, if acquitted of the felony, be convicted for an assault; for that crime does not include an assault against ine person. 8 C. & P., 417. On an indictinent for murder or manslaughter, the prisoner may be convicted of an assault under this statute, if an assault be proved which was part of the same transaction in which the deceased was killed, and so involved in the felony charged. 1 C. & Mar., 180, 212.*

(15) See ante, p. 149, n. (13).

The attempt to commit an offense prohibited by law, and doing any act toward its commission, but failing in the perpetration thereof, or being prevented or intercepted, upon conviction in cases where no other provision is made by law, is punished as follows: 1. If the offense attempted to be committed be such as is punishable by death, the person convicted of the attempt is punished by imprisonment in a state prison for a term not exceeding ten years; and, 2. If the offense so attempted be punishable by imprisonment in a state prison, county jail, or by fine and imprisonment, the person convicted of the attempt generally is punished to the extent of one half the imprisonment or fine imposed for the commission of the crime itself.-(2 R. S., 698, § 3. See, also, ante, p. 208, n. *.)

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 embassador 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 grieved, 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. But suits are, and always were, allowable in the spiritual court for money agreed to be given as a commutation for penance." So that, So that, upon the whole, it appears that a person guilty of such brutal behavior to a clergyman is subject to three kinds of prosecution, all of

t 2 Inst., 492, 620.

u Artic. Cler., 9 Edw. II., c. 4; F. N. B., 53.

But the justices are prohibited, by s. 29, from adjudicating on any assault or battery which they shall find to have been accompanied by any attempt to commit felony, or which they shall think, from any other circumstance, to be fit subject for prosecution by indictment, or in which any question arises as to the title to land, &c., or as to any bankruptcy, insolvency, or execution.*

It has been held that the word "forthwith," in the 27th section, binds the justices to give the certificate before the justices separate, 12 Ad. & E., 672; 4 Per & D., 319; sed quære; see 8 M. & W., 221. The certificate must state on which of the three grounds the complaint was dismissed. 10 Ad. & E., 635. It must be specially pleaded in an action, 6 C. & P., 427; and, as it seems, to an indictment also, being in the nature of a plea of auterfois acquit.

Besides the remedies for an assault by action and indictment, a more summary proceeding is given by the stat. 9 Geo. IV., c. 31, s. 27, whereby any person committing any assault and battery may be adjudged, on conviction before two justices of the peace, to pay a fine not exceeding, with costs, £5, or may be committed, on non-payment thereof, for a term not exceeding two calendar months, unless the fine and costs be sooner paid; but if the justices, upon the hearing of any such case, shall deem the offense not to be proved, or shall find the assault or battery to have been justified, or so trifling as not to merit any punishment, and shall accordingly dismiss the complaint, they shall forthwith make out a certificate under their hands, stating the fact of such dismissal, and shall deliver the certificate to the party against whom the complaint was preferred. And by s. 28, if the party The maiming or otherwise injuring shall have obtained such certificate, or, any person by means of the furious drivhaving been convicted, shall have paid ing or racing, or by the willful misconthe whole amount adjudged to be paid, duct of the coachman or other person or suffered the imprisonment awarded having the charge, of any stage-coach for the non-payment, he shall be releas or public carriage, is declared, by stat. ed from all further or other proceedings, 1 Geo. IV., c. 4, to be a misdemeanor, civil or criminal, for the same cause. punishable by fine and imprisonment. * Cases of assault and battery not committed riotously, or upon a public officer in the execution of his duties, may be tried by a court of special sessions, consisting of three justices of the peace, if the offender consent to be tried by such court, or if he neglect to give bail for his appearance at the next court of general sessions to be held in the county. The court has power to impose a fine to the amount of $50, and to imprison for the period of six months.-(2 R. S., 711, § 1, et seq.) It also has jurisdiction in various other petty crimes enumerated in the

same statute.

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