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convicted on such evidence, alone and unsupported, the degree of
ported by other witnesses.(m)
the learned Judge found that the principal witness was a female was not capa- infant, wholly incompetent to take an oath, he postponed the trial ble of giving till the following assizes; and ordered the child to be instructed in testimony.
the mean time, by a clergyman, in the principles of her duty, and
of an oath, was sworn; and the prisoner was convicted upon her
that the material witness, though an adult, and of sufficient inadult may be- tellect, had no idea of a future state of rewards and punishments, come capable. and the learned Judge had on that account stopped the case, and
discharged the Jury, in order that the witness might have an op-
See note (a) to White's case, i Leach
CHAPTER THE SEVENTH.
In treating of the offence of sodomy, peccatum illud horribile, inter Christianos non nominandum, it is not intended to depart from the reserved and concise mode of statement which has been adopted by other writers.
It appears from different authors, that in ancient times the Offence made punishment of this offence was death: (a) but it had ceased to be capital by 27 so highly penal, when the statute 27 H. 8. c. 6. again made it a H. 8. c. 6. capital offence. That statute reciting that there was not sufficient and condign punishment appointed and limited by the due course of the laws of the realm, for the detestable and abominable vice of buggery, committed with mankind or beast, enacts, “ that the "same offence be from henceforth adjudged felony, and such order “ and form of process therein be used against the offenders as in
cases of felony at common law: and that the offenders being “ hereof convicted by verdict, confession, or outlawry, shall suffer “ such pains of death, and losses and penalties of their goods, “chattels, &c. as felons be accustomed to do, according to the “ order of the common laws of this realm; and that no per
son, offending in any such offence, shall be admitted to his clergy.”(6)
The offence consists in a carnal knowledge committted against Definition of the order of nature by man with man; or in the same unnatural the offence. manner with woman; or by man or woman in any manner with
(a) But the books differ as to the by the general act of 1 Ed. 6. c. 12. ; mode of punishment, According to but by 2 Ed. 6. c. 29. the offence was Britton, a sodomite was to be burnt, made felony without clergy, though Britt. lib. 6. c. 9. In Fleta it is said, without loss of lands or goods, or corpecorantes et sodomitæ in terrå vivi ruption of blood. But this act of 2 confodiantur. With this the Mirror Ed. 6. was repealed by the 1 M. c. 1. agrees: but adds,
" issint que me
and the 25 H. 8. c. 6. also stood re" moire seont restraine, pur le grand pealed till the fifth year of Elizabeth. " abomination del fait;" thereby con- Then by the statute 5 Eliz. c. 17. the signing them, with just indignation, entire act of 25 H. 8.c. 6. is revived and to shameful and eternal oblivion. re-enacted, so that the offence stands Mirr. c. 4. s. 14. About the time of at this day absolutely felony without Richard the First, the practice was to benefit of clergy. i Hale 669. And hang a man, and drown a woman, offenders standing mute, not directly guilty of this offence. 3 Inst. 38. answering, or challenging peremp
(6) This act was at first only tempo- torily, above twenty, are deprived of rary, but inade perpetual by 32 Hen. clergy, by the general enactment of 8. C. 3. It was afterwards” repealed the 3 and 4 W. and M. c. 9. s. 2.
beast. (c) With respect to the carnal knowledge necessary to constitute this offence, as it is the same that is required in the case of rape, it will be sufficient to refer to the preceding Chapter. (d)
To constitute this offence, the act must be in that part where sodomy is usually committed. The act in a child's mouth does not constitute the offence. (o) An unnatural connection with an animal of the fowl kind is not sodomy; a fowl not coming under the term “beast:" and it was agreed clearly not to be sodomy, when the fowl was so small that its private parts would
not admit those of a man, and were torn away in the attempt.(p) Of aiders, &c. Those who are present, aiding and abetting in this offence, are and acces
all principals, and deprived of the benefit of clergy:(e) but if the sories.
party on whom the offence is committed be within the age of discretion, namely, under fourteen, (f) it is not felony in him, but only in the agent. (g) There may be accessories before and after in this offence, as the statute makes it felony generally: but
accessories are not excluded from clergy.(h) Indictment. The indictment must charge that the offender contrà nature
ordinem rem habuit veneream, et carnaliter cognovit.(i) But it is said, that this alone would not be sufficient; and that, as the statute describes the offence by the term “ buggery," the indictment should also charge peccatumque illud soulomiticum Anglicè dictum buggery adtunc et ibidem nequiter, felonicè, diabolice, ac
contrà naturam, commisit, ac perpetravit. (k) Evidence. That which has been before stated with regard to the evi.
dence and manner of proof in cases of rape, ought especially to be observed upon a trial for this still more heinous offence. When strictly and impartially proved, the offence well merits strict and impartial punishment : but it is from its nature so easily charged, and the negative so difficult to be proved, that the accusation ought clearly to be made out. The evidence should be plain and satisfactory, in proportion as the crime is
detestable. (2) Attempts to
In cases where it is not probable that all the circumstances necommit felony. cessary to constitute this offence will be proved, it may be ad
visable only to prefer an indictment for an assault with intent to commit an unnatural crime. And it should be observed, that the mere soliciting another to the commission of this crime has been treated as an indictable offence. (m)
(c) i Hale 669. Sum. 117. 3 Inst. (f) Ante, 2, 3. 58, 59. 1 Hawk. P. C. c. 4. 6 Bac. Ab. (8) 1 Hale 670. 3 Inst. 59. 1 East. Sodomy. 4 Blac. Com. 215. I Burn. P. C. c. 14. s. 2. Just. Buggery. 1 East. P. C. c. 14. (h) i Hale 670. Fost. 422, 423. s. ). Wiseman's case, Fortesc. 91. As (1) 1 Hawk. P. C. c. 4. S. 2. 3 Inst. to the offence by man with woman 58, 59. if the case should occur, it may be (k) Fost. 424, referring to Co. Ent. proper to enquire whether the doc- 351. b. as a precedent settled by great trine in the text is sufficiently sup- advice. ported by the authorities cited.
(1) 4 Blac. Com. 215. Ante, 563. (d) Ante, 558, et sequ.
(m) See a precedent of an indict(0) Rex v. Jacobs, East. T. 1817. ment for such solicitation, ? Chit. Russ. & Ry. 331.
Crim. L. 50. And for the principles (p) Rex v. Mulreaty, Hil. T. 1812. and cases upon which such an inMS. Bayley, J.
dictment may be supported, see ante, (e) i Hale 670. 3 Inst. 59. Fost. 44, 45.
CHAPTER THE EIGHTH.
OF THE FORCIBLE ABDUCTION AND UNLAWFUL TAKING AWAY
OF FEMALES ; AND OF CLANDESTINE MARRIAGES.
It appears to be the better opinion that if a man marry a woman Offences at under
without the .consent of her father or guardian, it will common law. not be an indictable offence at common law. (a) But if children be taken from their parents or guardians, or others entrusted with the care of them, by any sinister means; either by violence, deceit, conspiracy, or any corrupt or improper practices, as by intoxication; for the purpose of marrying them; it appears that such criminal means will render the act an offence at common law, though the parties themselves may be consenting to the marriage. (b) And seduction may be attended with such circumstances of combination and conspiracy as to make it an indictable offence. A case is reported where Lord Grey and others were charged, by an information at common law, with conspiring and intending the ruin 'of the Lady Henrietta Berkeley, then a virgin unmarried within the age of eighteen years, one of the daughters of the Earl of Berkeley, (she being under the custody, &c. of her father) and soliciting her to desert her father, and to commit whoredom and adultery with Lord Grey, who was the husband of another daughter of the Earl of Berkeley, sister of the Lady Henrietta, and to live and cohabit with him: and further, the defendants were charged that, in prosecution of such conspiracy, they took away the lady Henrietta at night, from her father's house and custody, and against his will, and caused her to live and cohabit in divers secret places with Lord Grey: to the ruin of the lady, and to the evil example, &c. The defendants were found guilty; though there was no proof of any force; but on the contrary it appeared, that the lady, who was herself examined as a witness, was desirous of leaving her father's house, and concurred in all the measures taken for her departure and subsequent concealment. It was not shewn that
any artifice was used to prevail on her to leave her father's house : but the case was put upon the ground that there was a solicitation and enticement of her to unlawful lust by Lord Grey, who was the principal person concerned, the others being
(a) i East. P. C. c. 11. s. 9. p. 458. information for a misdemeanor, in
(6) Id. ibid. p. 459. And see in 3 procuring a marriage with a minor, by Chit. Crim. L. 713. a precedent of an false allegations.
his servants, or persons acting by his command, and under his
controul. (c) Offences by The forcible abduction and unlawful taking away of women and statutes.
female children are made highly penal by the provisions of several
statutes. 3 Hen. 7. c. 2. The statute 3 Hen. 7. c. 2. relates to the forcible taking away makes the
of a woman of substance against her will. It recites that women, forcible taking away of a wo
as well maidens as widows and wives, having substances, some in man of sub- goods moveable, and some in lands and tenements, and some being stance a felony. heirs apparent unto their ancestors, for the lucre of such sub
stances, had been oftentimes taken by misdoers, contrary to their will, and after married to such misdoers, or to others by their assent, or defiled, to the great displeasure of God, and contrary to the King's laws, and disparagement of the said women, and utter heaviness and discomfort of their friends, and to the evil ensample of all other: and then enacts, “that what person or persons from “ henceforth that taketh any woman so against her will, unlaw“ fully; that is to say, maid, widow, or wife, that such taking,
procuring, and abetting to the same, and also receiving wittingly “ the same woman, so taken against her will, and knowing the “ same, be felony; and that such misdoers, takers, and procura“tors to the same, and receitors, knowing the said offence, in form “aforesaid, be henceforth reputed and judged as principal felons. “ Provided always, that this act extend not to any person taking
any woman, only claiming her as his ward or bondwoman.” And offenders Clergy was taken away from persons found guilty of offences
against this statute, by the 39 Eliz. c. 9.: but the late statute, nishable by transportation
1 Geo. 4. c. 115., repeals this enactment of the 39 Eliz. c. 9., and or imprison- enacts, that persons duly convictėd of such offences shall be liable
to be transported beyond the seas for life, or for such term not less than seven years, as the court before which such person shall be convicted shall adjudge; or shall be liable, in case the said court shall think fit, to be imprisoned only, or imprisoned and kept to hard labour in the common gaol, penitentiary house, or house of
correction, for any term not exceeding seven years. Accessories. It was made a question of considerable doubt whether persons
“ receiving wittingly the woman so taken against her will, and “knowing the same,” were ousted of clergy by the statute of Elizabeth, when that statute was in existence. (d) But it was agreed that those who received the offender, knowingly, were only accessories after the fact, according to the rule of the common law. (f) With respect to those who are only privy to the marriage, but in no way parties or consenting to the forcible taking away, it has been holden that they are not within the statute. (8)
Where the woman has nothing, and is not heir apparent, the case is not within the statute. (x) Thus where a man, worth 5,0001. in lands and goods, had a son and a daughter, and the
are now pu
(c) Rex v. Lord Grey and others, 3 41. s. 9. 3 Inst. 61. St. P. C. 44, 1 St. Tri. 519. | East. P. C. c. 11. s. 10. East. P. C. c. 11. s. 2. p. 452, 453.
(g) Fulwood's case, Cro. Car. 488, (d) i Hale 661. | East. P. C. c. ll. 489. 1 Hawk. P. C. c. 41. s. 10. S. 2. p. 452, 453.
(3) 12 Co. 100. V i Hale 661. Hawk. P. C. c.