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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 show 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) and so vice versa, if the woman be originally taken away with her own consent, yet if she afterwards refuse to continue with the offender, and be forced against her will, she may from that time as properly *be said to be taken against her will, as if she [*209 ] never have given any consent at all; for till the force was put upon her she was in her own power. (0) 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 (7) 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 bim.

An inferior degree of the same kind of offence, but not attended with force, is punished by the statutes 4 and 5 P. and M. 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 for wo 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. 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 the marriage totally void, (s) in the statute 26 Geo. II. c. 33. (3)

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III. A third offence, against the female part also of all 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 confiscation 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

(2) 1 Hawk. P. C. 110. (0) 1 Hawk. P. C. 110. (7) Stra. 1162.

(m) I Hal. P. C. 660. (p) 1 Hal. P. C. 661.

(8) See book I, page 437, &c.

1 Hawk. P. C. 109,
(n) 1 Hal. P. C. 660.
(g) Cro. Car. 488. 3 Keb. 193. State Trials. V, 455.
(t) Deut. xxii, 25.
(u) Cod. 9, tit. 13

(3) The act 4 and 5 P. and M. c. 8, is repealed, and the subject of this paragraph is covered by 24 and 25 Vic. c. 100. See Roscoe, Cr. Ev. 6th ed. 244.

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 noientibus 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 pœnæ, ab hujusmodi facinore se temperaverint, nulli mulieri, sive volenti, sive nolenti, peccandi locus relinquetur; quia hoc ipsum velle mulierum, ab insidiis nequissimi hominis, qui mediatatur [ *211] rapinam, inducitur. Nisi etenim eam solicitaverit, nisi odiosis arti

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bus circumvenerit, 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 was continued until 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), (2) 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 occurit 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 of rape [ *212 ] 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 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

(w) Bracton, 7. 3 c. 28.
(2) 1 Hal. P. C. 631.
(c) Glanv. . 14, c. 6.

(x) Stiernh. de jure Sueon, l. 3, c. 2.
(a) Glan. 7. 14, c. 6. Bract. 7. 3, c. 28.
Bract. l. 3, c. 28.
(d) 1 Hal. P. C. 631.

(y) LL. Gul. Cong. c. 19. (U) Barrington, 142.

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. (4)

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 malitia supplet ætatem, as has in some cases been shown; yet, as to this particular species of felony, the law supposes an imbecility of body as well as mind. (e) (5)

The civil law seems to suppose a prostitute or common harlot incapable of any injuries of this kind: (f) not allowing *any punishment for violating the chastity of her who hath indeed no chastity at all, or at least hath [ *213] 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, (7) "licet meretrix fuerit antea, certe tunc temporis non fuit, cum reclamando nequitiæ ejus consentire noluit. (6)

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 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, 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 no outery; these and the *like circumstances carry [ *214] a strong but not conclusive presumption that her testimony is false or feigned. (7)

(e) Ibid.

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

(g) 1 Hal. P. C. 629. 1 Hawk. P. C. 108.

(h) fol. 147.

(4) The punishment for rape, and also for carnal knowledge of a female child under ten years of age, was reduced to transportation for life, by statute 4 and 5 Vic. c. 56, and now to penal servitude or imprisonment. Statute 24 and 25 Vic. c. 100.

(5) But a boy under the age of puberty, or a woman, or a husband in respect to his own wife, may become guilty as principal in the second degree of this offence of rape. 2 Bish. Cr. Law, $948. In Commonwealth v. Green, 2 Pick. 380, it was held that a boy under fourteen might be guilty of an assault with intent to commit rape. And see Williams v. State, 14 Ohio, 222.

(6) And whether she has forsaken it or not, she is entitled to the protection of the law. See Wright v. State, 4 Humph. 194; Pleasant v. State, 15 Ark. 624. But her character may have an important bearing on the credibility of her accusation.

(7) [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 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 425

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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 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

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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:(1) "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 (0) 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 kidnapping.(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.

(p) Stiernh. de jure Goth. 1. 3, c. 2.

(l) Cod. 9. 9. 31.

(s) 1 Hawk. P. Č. 65.

(7) 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. And see 2 Bish. Cr. I. 1027; Ros. Cr. Ev. 871; 1 Russ. on Cr. 698.

(9) See, as to these offences, statuto 24 and 25 Vic. c. 100.

(10) This punishment is abolished.

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