sent or non-consent of the child, which was therefore considered gy, by 18 Eliz. as immaterial. The statute enacted that if any person should c. 7. now reunlawfully and carnally know and abuse any woman child under pealed. the age of ten years, every such unlawful and carnal knowledge should be felony; and the offender, thereof being duly convicted, should suffer as a felon without allowance of clergy. It appears at one time to have been thought, that the carnal know- The carnal ledge of a child above the age of ten and under twelve years was knowledge of rape, though she consented; twelve years being the age of con- a child above sent in a female, and the statute Westm. I. c. 13., which enacted, ten and under 'that none do ravish any maiden within age, neither by her own twelve years consent nor without," being admitted to refer, by the words old made a "within age," to the age of twelve years. (n) It was, however, misdemeanor afterwards well established, that if the child was above ten years Westminster, old it was not a felonious rape, unless it was against her will and consent. (r) But children above that age, and under twelve were still within the protection of the stat. of Westm. I. c. 13., the law with respect to the carnal knowledge of such children not having been altered by either of the subsequent statutes of Westm. 2. c. 34. or 18 Eliz. c. 7. (s) The statute Westm. I. c. 13. made the deflowering a child above ten years old and under twelve, though with her own consent, a misdemeanor punishaable by two year's imprisonment and fine at the king's pleasure." (t)

by stat. of

I. c. 13. now

repealed.

These statutes having been repealed by 9 G. 4. c. 31. the 17th sec- 9 G. 4. c. 31.
tion of that act substitutes the following provisions and enacts s. 17. Carnal
that if any person shall unlawfully and carnally know and knowledge of
abuse any girl under the age of ten years, every such offender a girl under
shall be guilty of felony, and being convicted thereof, shall ten the like of
suffer death as a felon; and if any person shall unlawfully a girl above
and carnally know and abuse any girl, being above the age of ten and below
ten years and under the age of twelve years, every such offender twelve.
shall be guilty of a misdemeanor, and being convicted thereof,
shall be liable to be imprisoned with or without hard labour, in

the common gaol or house of correction for such term as the
court shall award."

565, line 8 at the end add "These observations will apply to the present enact

ment."

567, line 7 and also in the margin insert" 25 H. 8." instead of" 27 H. 8."
567, line 4 from the bottom after " clergy (b)" add "The statute 9 G. 4. c.

31, s. 15. repeal this act but enacts that every person convicted
of the abominable crime of buggery, committed either with
mankind or with any animal, shall suffer death as a felon."

note (b) line 13 instead of" is revived', read "was revived" and lines
14, 15, instead of "stands at this day absolutely" read “after
the passing of that statute was" and at the end of the note add
"But the 5 Eliz c. 17. is now repealed by 9 G. 4. c. 31.

570, line 3, dele the whole of the paragraph beginning" The forcible abduc-
tion and unlawful taking," and insert" The forcible abduction
of a woman from motives of lucre is an offence of the degree of
felony by 9 G. 4. c. 31. s. 19. which repeals several former sta-
tutes upon this snbject. It enacts that where any woman shall
have any interest, whether legal or equitable, present or fu-
ture, absolute, conditional, or contingent, in any real or per-
sonal estate, or shall be an heiress presumptive or next of kin
to any one having such interest, if any person shall from mo-
tives of lucre, take away or detain such woman against her will,
with intent to marry or defile her, or to cause her to be mar-
ried 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

(g) 1 Hale 631. 2 Inst. 180. 3 Inst. 60. (r) Sum. 112. 4 Blac. Com. 212. I East.P. C. c. 10. s. 2. p. 436.

2

(s) Ante 556.

(t) 4 Blac. Com. 212. 1 East. P. C. c. 10. s. 9. p. 436

Forcible abduction, of a woman on account of her fortune with intent to marry her, &c.

Of the county in which the offence shall be said to have been committed.

Necessary statement in the indictment.

to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned, with or without hard labour, in the common gaol or house of correction, for any term not exceeding four years."

570, line 6, instead of "The statute 3 Hen. 7." insert" The repealed statute

3 H. 7."

in the margin opposite line 6, erase "makes the forcible taking away of substance a felony."

line 26, dele the paragraph, beginning "Clergy was taken away," and insert " Clergy was taken away from persons found guilty of offences against this statute by the 39 Eliz. c. 9., but a later statute 1 Geo. 4. c. 115. repealed this enactment of 39 Eliz. c. 9., and made the offence punishable by transportation or imprisonment. This statute 1 G. 4. c. 115. is repealed by 9 G. 4. c. 31. Some of the points decided upon the repealed statutes may still be worthy of observation. "

571, line 26, dele, the sentence beginning with the words "The taking alone" and also the following sentence add the words "And a marriage will be sufficient," and insert "The taking alone did not constitute the offence under the repealed statute and it was necessary that the woman taken away should have been married or defiled by the misdoer, or by some others with his consent. But the new enactment makes the taking away or detaining a woman with intent to marry or defile her a complete offence. And under the repealed statute it was decided that if the woman were under force at the time of taking, it was not at all material whether she were ultimately married or defiled with her her own consent or not; on the ground that an offender should not be considered as exempted from the provisions of the statute, by having prevailed over the weakness of a woman, whom he got into his power by such base means. And it was also decided that a marriage will be sufficient.".

572, dele the paragraph beginning

If however a woman" to the bottom of the page, and also pages 573, 574, 575, 576, and 577, to the end of line 16, and insert“ Upon the same repealed statute where a woman was taken away forcibly in one county, and afterwards went voluntarily into another county, and was there married or defiled, with her own consent, it was holden that the fact was not indictable in either county; on the ground that the offence was not complete in either: but that if, by her being carried into the second county, or in any other manner, there was a continuing force in that county, the offender might be indicted there; though the marriage or defilement ultimately took place with the woman's own consent. (j) The enactment of the late statute 7 G. 4. c. 64. s. 12. would have applied to this objection. "It was resolved, that an indictment for this offence upon the repealed statute ought expressly to set forth that the woman taken away had lands or goods, or was heir apparent, and that the taking was against her will; and that it was for lucre; and also that she was married or defiled; such statement being necessary to bring a case within the preamble of that statute, to which the enacting clause clearly referred in speaking of persons taking away a woman" so against her will "(4) But it was said not to have been necessary to state in the indictment, the taking was with an intention to marry or defile the party, because the words of the statute did not require such an intention, nor did the want of it any way lessen the injury. (m) In an indictment where the

(j) Talwood's case Cro. Car. 485, 488. 1 Hale 660. 1 Hawk. P. C. c. 41. s. 9. 1 East. P. C. c. 11. s. 3. p. 455. Rex v. Lockhart and Loudon Gordon, Cor. Lawrence J. Oxford Lent ass. 1804.

(1) 1 Hawk. P. C. c. 41. s. 4. 1 Hale 460. 4 Blac. Com. 2. 12. Co. 21, 100.

(m) Rex v. Fulwood, Cro. Car. 488. ante 570.571. It is said, however in 1 Hale 660. that the words ed intentione ad

recent enactment of 9 G. 4. c. 31. the allegation as to the intent
will be necessary.

It appears to have been considered as clear that a woman taken
away and married might be a witness against the offeuder if the
force were continuing upon her till the marriage; and that she
might herself prove such continuing force: (n) for though the
offender was her husband de facto, he was no husband de jure,
in case the marriage was actually against her will. (0) It seems
however, to have been questioned, how far the evidence of the
inveigled woman would be allowed, in cases where the actual
marriage was good by her consent having been obtained after
forcible abduction. (p) But other authorities appear to agree,
that it should be admitted, even in that case; esteeming it ab-
surd that the offender should thus take advantage of his own
wrong, and that the very act of marriage, which was a princi-
pal ingredient of his crime, should (by å forced construction of
law) be made use of to stop the mouth of the most material
witness against him. (g) And where the marriage was against the
will of the woman at the time, there does not seem to be any
good ground upon which her competency could have been ob-
jected to, though she might have given her subsequent assent. (r)
It also appears to have been ruled upon debate, in a modern
case, that a wife was a competent witness for, as well as against
her husband; on the trial of an indictment for this offence, al-
though she had cohabited with him from the day of her mar-
riage. (s)

age

Of the evi

dence of the woman when taken away

and married.

girl from her parents or guardians.

"The unlawful abduction of a girl under the age of sixteen from 9 G. 4. c. 31.
her parents, or persons having the charge of her, is an offence of s. 20.
the degree of misdemeanor by 9 Geo. 4. c. 31. s. 20. which Unlawful ab-
enacts, that if any person shall unlawfully take, or cause to be duction of a
taken, any unmarried girl, being under the
of sixteen years,
out of the possession, and against the will of her father or mo-
ther, 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-
ment, by fine or imprisonment, or by both, as the Court shall
award.'

"The provisions of the repealed statute, 4 & 5 Ph. & M. c. 8. and
the construction upon some parts of it, may still be worthy of
observation."
579, dele the whole of the paragraph beginning with the words, "Though the
statute only gives authority to the star chamber," and also the
whole of the next paragraph, to the word " temptation."

583, line 16 from the bottom, dele "It enacts that in case any master of a

Repealed statate of 4 & 5 Ph. & M. c. 8.

merchant ship," and to the end of the page, and insert, "But it 9 G. 4. c. 31.
is repealed by the recent statute, Geo. 4. c. 31. and s. 30. of s. 30.
that statute enacts, if any master of a merchant vessel shall, Punishment
during his being abroad, force any man on shore, or wilfully for the master
leave him behind in any of his Majesty's colonies, or elsewhere,
or shall refuse to bring home with him again all such of the men

ipsam maritandam were usually added in indictments upon this statute and that it was safest so to do.

(n) Fulwood's case Cro. Car. 488. Brown's case 1 Ventr. 243. Swendsen's case, 5 St. Tri. 456.

(o) 1 Hale 660, 961, 4 Blac. Com. 209. (p) 1 Hale 161, where the author observes, upon Brown's case (ante n. (n) ) that some of the reasons why the woman was sworn and gave evidence were, that there was no cohabitation, and that there was concuring evidence to prove the whole fact: but that if she had freely and without constraint, lived with the person

who married her for any considerable
time, her examination in evidence might
have been more questionable.

(q) 4 Blac. Com: 209.

(r) 1 East, P. C. c. 11. s. 5. p. 454.
(s) Perry's case, Bristol, 1794. 1 Hawk.
P. C. c. 41. s. 13. and in 1 East. P. C. c.
11. s. 5. p. 455. the learned author says
"I conceive it to be now settled, that in
"all cases of personal injuries committed
"by the husband or wife against each
"other the injured party is an admissible
"witness against the other." And see
post, Book on evidence.

of a merchant vessel forcing

his seaman on shore, or refusing to bring him home. Mode of trial, &c.

9 G. 4. c. 31. Child stealing

Not to extend to fathers taking their illegitimate children.

9 G. 4. c. 31. s. 11.

Attempts to murder, when evidenced by

whom he carried out with him, as are in a condition to return when he shall be ready to proceed on his homeward bound voyage, every such master shall be guilty of a misdemeanor, and being lawfully convicted thereof, shall be imprisoned for such term as the Court shall award; and all such offences may be prosecuted by indictment, or by information at the suit of his Majesty's Attorney-General in the Court of King's Bench, and may be alleged in the indictment or information to have been committed at Westminster, in the county of Middlesex; and the said Court is hereby authorized to issue one or more commissions, if necessary, for the examination of witnesses abroad; and the depositions taken under the same shall be received in evidence on the trial of every such indictment or information." 583, in the margin, even with line 18, erase "11 & 12 W. 3. c. 7. s. 18." and insert "9 Geo. 4. c. 31. s. 30." and at the end of the marginal note erase, "liable to three months imprisonment," and insert guilty of a misdemeanor."

584, dele the whole of the section, and insert "The statute 54 Geo. 3. c. 101. is repealed by the 9 Geo. 4. c. 31. the twenty-first section of which enacts, "that if any person shall maliciously, either by force or fraud, lead or take away, or decoy or entice away, or detain, any child under the age of ten years, with intent to deprive the parent or parents, or any other person having the lawful care or charge of such child, of the possession of such child, or with intent to steal any article upon or about the person of such child, to whomsoever such article may belong; or if any person shall, with any such intent as aforesaid, receive or harbour any such child, knowing the same to have been, by force or fraud, led, taken, decoyed, enticed away, or detained as hereinbefore mentioned; 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 beyond the seas for the term of seven years, or to be imprisoned, with or without hard labour, in the common gaol or house of correction, for any term not exceeding two years, and if a male, to be once, twice, or thrice publicly or privately whipped, (if the Court shall so think fit,) in addition to such imprisonment: provided always, that no person who shall have claimed to be the father of an illegitimate child, or to have any right to the possession of such child, shall be liable to be prosecuted by virtue hereof, on account of his getting possession of such child, or taking such child out of the possession of the mother, or any other person having the lawful charge thereof."

"" were

586, line 7 from the bottom, dele" have been made," to the end of the page,
and also the following pages, 587, 588, 589, 590, 591, 592, 593,
and the nine lines at the top of page 594, and insert,
made highly penal by the enactments of several statutes now
repealed. The statute 9 Geo. 1. c. 22. commonly called the
Black Act, and which made the maliciously shooting at any per-
son a capital offence, and the 26 Geo. 2. c. 19. s. 1. by which the
beating or wounding persons shipwrecked with intent to kill
them, &c. or putting out false lights to bring a ship into danger,
were repealed by the statute 7 & 8 Geo. 4. c. 27. The statute
5 H. 4. c. 5. relating to cutting tongues and putting out eyes;
the 22 & 23 Car. 2. c. 1. called the Coventry Act, by which mali-
cious maiming was made a capital offence; the 9 Ann. c. 16.
which made it capital to attempt to kill, assault, wound, &c. a
privy counsellor, and also the 43 Geo. 3. c. 58. commonly called
Lord Ellenborough's Act, are repealed by the recent statute

9 Geo. 4. c. 31.

"This recent statute, 9 Geo. 4. c. 31. contains several enactments upon these subjects. The eleventh section enacts, "that if any person unlawfully and maliciously shall administer or attempt to administer to any person, or shall cause to be taken by any person, any poison or other destructive thing, or shall unlaw

66

fully and maliciously attempt to drown, suffocate, or strangle certain acts,
any person, or shall unlawfully and maliciously shoot at any shall be ca-
person, or shall, by drawing a trigger, or in any other manner, pital.
attempt to discharge any kind of loaded arms at any person, or
shall unlawfully and maliciously stab, cut, or wound any person,
with intent, in any of the cases aforesaid, to murder such person,
every such offender, and every person counselling, aiding, or
abetting such offender, shall be guilty of felony, and being con-
victed thereof, shall suffer death as a felon.

ting, or wounding any person, with

intent to maim, &c.

The 12th section enacts, "that if any person unlawfully and ma- S. 12. Shoot-
liciously shall shoot at any person, or shall, by drawing a trigger, ing at, or
or in any other manner, attempt to discharge any kind of loaded stabbing, cut-
arms at any person, or shall unlawfully and maliciously stab,
cut, or wound any person, with intent, in any of the cases afore-
said, to maim, disfigure, or disable such person, or to do some
other grievous bodily harm to such person, or with intent to
resist or prevent the lawful apprehension or detainer of the party
so offending, or of any of his accomplices, for any offence for
which he or they may respectively be liable by law to be appre-
hended or detained, every such offender, and every person coun-
selling, aiding, or abetting such offender, shall be guilty of
felony, and being convicted thereof, shall suffer death as a felon:
provided always, that in case it shall appear, on the trial of any
person indicted for any of the offences above specified, that such
acts of shooting, or of attempting to discharge loaded arms, or
of stabbing, cutting, or wounding as aforesaid, were committed
under such circumstances, that if death had ensued therefrom,
the same would not in law have amounted to the crime of mur-
der, in every such case the person so indicted shall be acquitted
of felony.'

"The repealed statute 43 Geo. 3. c. 58. contained the following
enactments,"

596, line 8, dele the words "This statute 43 Geo. 3. c. 58." and to the end of
the paragraph, and insert, "The cases upon the construction of
the statute 43 Geo. 3. c. 58. may assist in the construction of the
new law."

612, line 8, dele to the end of the page, and also 16 lines of the next page.
615, line 18, dele to the end of the page, and also the following page, and the

shall be capital, provided the case would have been murder if death had ensued.

tent to steal.

9 lines at the top of page 617, and insert, "Amongst the principal Assault with
of those assaults, the aggravated nature of which may be said to intent to com-
arise from the great criminality of the object intended to be mit a robbery,
effected, is an assault upon a person with a felonious intent to and demand-
commit a robbery; and nearly allied to this, is a demand of pro- ing money by
perly effected by menaces or force, and with the intent of steal- menaces or
ing such property. These offences were made felonies by the force, with in-
late statute, 4 Geo. 4. c. 54. s. 5. which repealed the statute 7 Geo.
2. c. 21. an act for the more effectual punishment of assaults with
intent to commit robbery, but the 4 Geo. 4. c. 54. is also repealed
by the statute 7 & 8 Geo. 4. c. 27. The present law upon the
subject is contained in the statute 7 & 8 Geo. 4. c. 29. s. 6. which
enacts, that if any person shall assault any other person, with an
intent to rob him, or shall with menaces or by force demand any
such property of any other person with intent to steal the same,
every such offender shall be guilty of felony, and being convicted and demands
thereof, shall be liable, at the discretion of the Court, to be accompanied
transported beyond the seas for life, or for any term not less
than seven years, or to be imprisoned for any term not exceed-
ing four years, and, if a male, to be once, twice, or thrice pub-
licly or privately whipped, (if the Court shall so think fit,) in
addition to such imprisonment.'

Assaults with intent to commit robbery,

with menaces

or force.

"The repealed statute 4 Geo 4. c. 54. enacted, "That if any person Repealed sta-
should maliciously assault any other person, with intent to rob tute 4 G. 4. c.

such other person, or should by menaces, or by force, maliciously 54.
demand money, security for money, goods or chattels, wares or
merchandize, of any other person, with intent to steal the same,

B