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quando perpetuum exilium, cum omnium bonorum ademptione."(g) And this although the mayhem was committed upon the highest provocation.(h)
But subsequent statutes have put the crime and punishment of mayhem more out of doubt. For, first, by statute 5 Hen. IV. c. 5, to remedy a mischief that then prevailed of beating, wounding, or robbing a man and then cutting out. his tongue or putting out his eyes to prevent him from being an evidence against them, this offence is declared to be felony, if done of malice prepense; that is, as Sir Edward Coke(i) explains it, voluntarily and of set purpose, though done upon a sudden occasion. Next in order of time is the statute 37 Hen. VIII. c. 6, which directs that if a man shall maliciously and unlawfully cut off the
ear of any of the *king's subjects, he shall not only forfeit treble damages [*207
to the party grieved, to be recovered by action of trespass at common law as a civil satisfaction, but also 107. by way of fine to the king, which was his criminal amercement. The last statute, but by far the most severe and effectual of all, is that of 22 & 23 Car. II. c. 1, called the Coventry act, being occasioned by an assault on Sir John Coventry in the street, and slitting his nose, in revenge (as was supposed) for some obnoxious words uttered by him in parliament. By this statute it is enacted that if any person shall of malice aforethought and by lying in wait unlawfully cut out or disable the tongue, put out an eye, slit the nose, cut off a nose or lip, or cut off or disable any limb or member, of any other person, with intent to maim or disfigure him, such person, his counsellors, aiders, and abettors, shall be guilty of felony without benefit of clergy.(k)1
Thus much for the felony of mayhem: to which may be added the offence of
(*) On this statute Mr. Coke, a gentleman of Suffolk, and one Woodburn, a labourer, were indicted in 1722.-Coke for hiring and abetting Woodburn, and Woodburn for the actual fact of slitting the nose of Mr. Crispe, Coke's brother-in-law. The case was somewhat singular. The murder of Crispe was intended, and he was left for dead. being terribly hacked and disfigured with a hedge-bill; but he recovered. Now, the bare intent to murder is no felony; but to disfigure with an intent to disfigure is made so by this statute,—on
which they were therefore indicted. And Coke, who was a disgrace to the profession of the law, had the effrontery to rest his defence upon this point,-that the assault was not committed with an intent to disfigure, but with an intent to murder, and therefore not within the statute. But the court held that if a man attacks another to murder him with such an instrument as a hedge-bill, which cannot but endanger the disfiguring him, and in such attack happens not to kill but only to disfigure him, he may be indicted on this statute; and it shall be left to the jury to determine whether it were not a design to murder by disfiguring, and consequently a malicious intent to disfigure as well as to murder. Accordingly the jury found them guilty of such previous intent to disfigure in order to effect the principal intent to murder, and they were both çondemned and executed. State Trials, vi. 212.
These statutes are now all repealed. "So much of the 5 Hen. IV. c. 5 as relates to cutting the tongues or putting out the eyes of any of the king's liege people, and to any assault upon the servant of a knight of the shire in parliament," by the 9 Geo. IV. c. 31; the 37 Hen. VIII. c. 6 wholly, by the 7 & 8 Geo. IV. c. 27; and the 22 & 23 Geo. II. c. 1 wholly, by the 9 Geo. IV. c. 31; and the old law with respect to mayhem is now merged in the last-mentioned statute, sects. 11 and 12 of which provide ample remedies for that offence. There are, however, two species of maiming not included in the 9 Geo. IV. c. 31, it having been previously found necessary to make them the subjects of distinct enactments, namely, injuries done to the persons of individuals by means of wanton or furious driving, and by means of spring-guns and man-traps.
By the 1 Geo. IV. c. 4, it is enacted that if any person whatever shall be maimed or otherwise injured by reason of the wanton and furious driving or racing, or by the wilful misconduct of any coachman or other person having the charge of any stage-coach or public carriage, such wanton or furious driving or racing, or wilful misconduct, of such coachman or other person, shall be, and the same is thereby declared to be, a misdemeanour, and punishable as such by fine or imprisonment. Proviso, not to extend to hackney-coaches drawn by two horses only and not plying for hire as stage-coaches. This, it will be observed, applies only to cases where some injury short of death is inflicted. Where death ensues from the negligence or misconduct, of such persons, the offence amounts either to murder or manslaughter. See Rex vs. Walker, 1 C. & P. 320. By the 7 & 8 Geo. IV. c. 18, s. 1, it is enacted that if any person shall set or place, or cause to be set or placed, any spring-gun, man-trap, or other engine calculated to destroy human life or inflict grievous bodily harm, with the intent that the same, or whereby the same, may destroy or inflict grievous bodily harm upon a trespasser, or other person coming in contact therewith, the person so setting or placing, or causing to be so set or placed, such gun, trap, or engine as aforesaid, shall be guilty of a misdemeanour.-. CHITTY.
wilfully and maliciously shooting at any person in any dwelling-house or other place; an offence of which the probable consequence may be either killing or maiming him. This, though no such evil consequence *ensues, is made *208] felony without benefit of clergy by statute 9 Geo. I. c. 22; and thereupon one Arnold was convicted in 1723 for shooting at lord Onslow, but, being half a madman, was never executed, but confined in prison, where he died about thirty years after.2
II. The second offence, more immediately affecting the personal security of individuals, relates to the female part of his majesty's subjects; being that of their forcible abduction and marriage; which is vulgarly called stealing an heiress. For, by statute 3 Hen. VII. c. 2, it is enacted that if any person shall for lucre take any woman, being maid, widow, or wife, and having substance either in goods or lands, being heir-apparent to her ancestors, contrary to her will, and afterwards she be married to such misdoer, or by his consent to another, or defiled; such person, his procurers and abettors, and such as knowingly receive such woman, shall be deemed principal felons; and, by statute 30 Eliz. c. 9, the benefit of clergy is taken away from all such felons, who shall be principals, procurers, or accessories before the fact."
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 thereto by flatteries after the taking, yet this is felony, if the first taking were against her will;(n)a
() 1 Hawk. P. C. 110.
()1 Hal. P. C. 660. 1 Hawk. P. C. 109.
(n) 1 Hal. P. C. 660.
2 All the previous statutes were repealed, so far as they extended to offences relating to the person, by statute 1 Vict. c. 85, by s. 2 of which the administering poison, or stabbing, cutting, or wounding, or causing bodily injury to, any person dangerous to life, with intent to commit murder, is felony punishable with death; and the following crimes are felony punishable with transportation for life or fifteen years,-and now to penal servi tude, or imprisonment for three years,—viz., the attempting to administer poison, &c. or shooting at any person, or drawing a trigger or attempting to discharge loaded arms at any person, or to drown, suffocate, or strangle, with intent to murder, though no bodily injury be effected, (s. 3;) the attempting by any such means to maim, disfigure, or disable any person, (s. 5;) the sending explosive substances, or throwing destructive matter, with intent to harm, maim, or disfigure any person, (s. 5;) and the trying to procure abortion by poison or otherwise. S. 6. And the malicious stabbing or wounding any person, without the intent to murder, is a misdemeanour. 14 & 15 Vict. c. 19. And now also, by stat 9 & 10 Vict. c. 25, any mayhem occasioned by maliciously causing gunpowder or other substance to explode, or the causing or delivering to, or causing to be taken by, any person any dangerous thing, or the casting at or applying to any person any corrosive fluid or dangerous substance with intent to maim, is a felony, and punishable with transportation for life, or for any term not exceeding three years, with or without hard labour and solitary confinement. Also the administering chloroform, laudanum, or other stupefying drug, with intent to enable the offender to commit a felony, is a felony itself, and punishable with transportation for life or not less than seven years, or imprisonment for three years, (14 & 15 Vict. c. 19, s. 3,) and now with penal servitude. 16 & 17 Vict. c. 99.-STEWART.
These statutes are both wholly repealed, by the 9 Geo. IV. c. 31, by sect. 19 of which it is enacted that where any woman shall have any interest, whether legal or equitable, present or future, absolute, conditional, or contingent, in any real or personal estate, or shall be an heiress presumptive, or next of kin to any one having such interest,-if any person shall, from motives of lucre, take away or detain such woman against her will, with intent to marry or defile her, or to cause her to be married 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 to be transported for life or for any term not less than seven years, or to be imprisoned, with without hard labour, for any term not exceeding four years.-CHITTY.
* But if the forcible abduction is confined to one county, and the marriage be solemn
and so vice versa, if the woman be originally taken away by 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 [*209 her will as if she never had 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(q) 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 him."
An inferior degree of the same kind of offence, but not attended with force, is punished by the, statutes 4 & 5 Ph. and Mar. 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 im prisoned two 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
(°) 1 Hawk. P. C. 110.
(9) Cro. Car. 488. 3 Keb. 193. State Trials, v. 455.
ized by consent in another, the defendant cannot be indicted in either, though had the force been continued into the county where the marriage took place, no subsequent consent would avail. Cro. Car. 488. Hob. 183. Hawk. b. ii. c. 25, s. 40. 1 Russ. 820, 821. 1 East, P. C. 453. Where the female is under no restraint at the time of marriage, those who are present, but who are ignorant of the previous circumstances, will not share in the guilt of the abduction. Cro. Car. 489, 493. As to accessories after the fact, see 1 East, P. C. 453. 3 Chitt. Crim. L. 818.-CHITTY.
It seems to be well agreed, and indeed to be beyond all doubt, that where a woman is taken away and married by force she is a competent witness against her husband on an indictment for that offence. See Phil. Ev. 3d ed. 70, and the authorities there cited. But the proposition that where she consents to the marriage after a forcible abduction her evidence is equally admissible, seems to admit of some doubt. In the last case of this kind (Wakefield's) both the abduction and the marriage were in fact voluntary, the lady's consent to both having been obtained by fraud; but it was held that the fraud in law amounted to force, and the lady was upon that ground, it is conceived, admitted as a witness against the husband. A doubt afterwards arose whether the marriage in that case was valid or not, which led to the bringing in a bill to annul it, though the prevailing opinion among the profession seemed to be that the marriage was ipso facto void, as a marriage procured by force: in which view of the case, the admission of the wife's evidence would not be an authority upon the question one way or the other. One account of that trial states that Hullock, B., declared that, even assuming the marriage to be valid, he would admit the wife's evidence, for there were cases in which the evidence of wives was admissible against their husbands, and he considered that to be one of them. And, upon the principle that a woman may give evidence against her husband in the case of a personal wrong done to herself, it does seem that the wife would be a competent witness in a prosecution for abduction, even though the marriage was valid.-. CHITTY.
This act of 4 & 5 P. and M. c. 8 is wholly repealed by the 9 Geo. IV. c. 31; sect. 20 of which enacts, that if any person shall unlawfully take, or cause to be taken, any unmar ried girl, being under the age of sixteen years, out of the possession and against the will of her father or mother or any other person having the lawful care or charge of her, every such offender shall be guilty of a misdemeanour, and, being convicted thereof, shan be liable to suffer such punishment by fine or imprisonment, or by both, as the court
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
*210] make the marriage totally void,(s) in the statute 26 Geo. II. c. 33.
III. A third offence, against the female part also of 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 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 nolentibus 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 art 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 meditatur ra*211] pinam, inducitur. *Nisi etenim eam solicitaverit, nisi odiosis artibus 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 continued till 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)(z) that the woman should immediately after, "dum recens fuerit male
(*) Deut. xxii. 25.
(*) Cod. 9, tit. 13.
(*) See book i. page 437, &c.
(w) Bracton, l. 3, c. 28.
Stiernh. de jure Sucon. 1. 3, c. 2.
shall award. This clause was framed for the purpose of meeting such a case as that of Wakefield.-CHITTY.
'Such a marriage, if voluntary on the part of the female, that is, not procured by force or fraud, would not now be void,-it having been held, after much doubt entertained upon the point among the profession, (see Ďoe vs. Price, 1 M. & R. 683,) that the 4 Geo. IV. c. 76 legalizes marriages which would otherwise have been void, under the 26 Geo. II. c. 33, on account of the minority of the parties and the non-consent of parents. See Rex vs. Birmingham, 2 M. & R., 8 B. & C. 29, and the judgment of lord Tenterden therein. The new act, however, provides (sect. 23) that if any valid marriage solemnized by license shall be procured by a party to such marriage to be solemnized between persons one or both of whom shall be under age, by means of false swearing to any matter to which such party is required personally to depose, all the property accruing from the marriage shall be forfeited, and shall be secured for the benefit of the innocent party or the issue of the marriage. The latter words clearly show the intention of the legislature not to render the marriage void; for the words "issue of the marriage" in an Act of Parliament must mean lawful issue, which they could not be if the marriage was void.-CHITTY.
ficium," go to the next town, and there make discovery to some credible person 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 Aragon,(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 t is usually now punished by indictment at the suit of the king, the maxim of law takes place that nullum tempus occurrit 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 was much mitigated; the offence itself of ravishing a damsel within [*212
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 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.
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 supplia 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)
The civil law seems to suppose prostitute or common harlot incapable of any injuries of this kind;(f) not allowing *any punishment for vio[*213 lating the chastity of her who hath indeed no chastity at all, or at least hath 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, (h) "licet meretrix fuerit antea, certe tunc temporis non fuit, cum réclamando nequitiæ ejus consentire noluit."
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
(a) Glanv. l. 14, c. 6.
Bract. l. 3, c. 28.
(f) Cod. 9, 9, 22. Ff. 47, 2, 39.
8 But now, by stat. 4 & 5 Vict. c. 56, s. 3, the punishment of death is repealed, and transportation for life is substituted for both the offences of rape and carnal knowledge of a girl under ten years of age, for which penal servitude may now be substituted. STEWART.
But an infant under fourteen may be guilty as an abettor if shown to possess a mischievous discretion. 1 Hale, 630.-CHITTY.