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known and settled for the conviction of the guilty and preservation of the innocent, and therefore are 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 outcry; these and the *like
*214] circumstances carry a strong but not conclusive presumption that her
testimony is false or feigned."
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 Matthew 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.
() 1 Hal. P. C. 634.
10 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 given seems to be admissible, for it is of the highest importance to ascertain the accuracy of her recollection, (East, P. C. 443. Stark. on Evidence, part iv. 1268;) but, in 2 Stark. Rep. 241, upon an indictment for an attempt to commit a rape upon an adult, Holroyd, J., held that the particulars of the complaint made by the prosecutrix recently after the injury were not admissible in evidence. In the case of the death of the prosecutrix, her depositions, taken before a magistrate, are admissible, though not authenticated by her signature. 2 Leach, 854, 996.
"When the child does not sufficiently understand the nature and obligation of an oath, the judge will put off the trial, for the child to be instructed in the mean time. Bac. Abr. Evid. a. Leach, 439, n.-CHITTY.
*It is true," says this learned judge,(j) “that rape is a most detest
able crime, and therefore ought severely and impartially to be punished [*215
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 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 over-hastily carried on to the conviction of the person accused thereof by the confident testimony of sometimes 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 crime 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 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 proficit scire, jubemus insurgere leges, armari jura *gladio [*216 ultore, ut exquisitis pænis subdantur infames, qui sunt, vel qui futuri sunt rei." Which leads me to add a word concerning its punishment.
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 antient law in some degree imitated this punishment, by commanding such miscreants to be burned to death,(n) though Fleta(o) says they should be buried alive; either of which punishments was indifferently used for this crime among the antient 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. 17. And the rule of law herein is, that if both are arrived at years of discretion, agentes et consentientes pari pœna plectantur.(q)
These are all the felonious offences more immediately against the personal security of the subject. The inferior offences or misdemeanours that fall under this head are assaults, batteries, wounding, false imprisonment, and kidnapping.
V. VI. VII. With regard to the nature of the three first of these offences in general, I have rothing further to add to what has already been observed in the preceding book of these commentaries, (r) when we consider 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 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 an intent to murder, or with an intent
to commit either of the *crimes last spoken of; for which intentional *217] 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.12
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. 3,13 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 aggrieved, 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.(t) But suits are, and always were, allowable in the spiritual court for money agreed to be given as a commutation for penance.(u) So that upon the whole it appears that a person guilty of such brutal behaviour to a clergyman is subject to three kinds of prosecution, all of which may be pursued for one and the same offence: an indictment for the breach of the king's peace by such assault and battery; a civil action for **218] the special damage sustained by the party injured; and a suit *in the ecclesiastical court, first pro correctione et salute animæ, by enjoining penance, and then again for such sum of money as shall be agreed on for taking off the penance enjoined; it being usual in those courts to exchange their spiritual censures for a round compensation in money, (v) perhaps because poverty is generally esteemed by the moralists the best medicine pro salute animæ.
VIII. The two remaining crimes and offences against the persons of his majesty's subjects are infringements of their natural liberty; concerning the first of which, false imprisonment, its nature and incidents, I must content myself with referring the student to what was observed in the preceding volume,(w) when we considered it as a mere civil injury. But, besides the private satisfaction given
(t) 2 Inst. 492, 620.
() Artic. Cler. Edw. II. c. 4, F. N. B. 53.
(*) 2 Roll. Rep. 384.
12 The punishment of pillory is now taken away by the 56 Geo. III. c. 138. In cases of assaults of a very aggravated nature, the punishment of whipping has been inflicted in addition to that of imprisonment and finding sureties for good behaviour. 1 Burn, J. 24th ed. 231. 1 East, P. C. 406. The 3 Geo. IV. c. 114 inflicts a severer punishment on persons guilty of assaults therein particularly described. In cases where the offence more immediately affects the individual, the defendant is sometimes permitted by the court, even after conviction, to speak with the prosecutor before any judgment is pronounced, and a trivial punishment (generally a fine of a shilling) is inflicted, if the prosecutor declares himself satisfied. Post, 363, 364. And where, in a case of indictment for ill-treating a parish apprentice, a security for the fair expenses of the prosecution had been given by the defendant, after conviction, upon an understanding that the court would abate the period of his imprisonment, the security was held to be good, upon the ground that it was given with the sanction of the court, and to be considered as part of the punishment suffered by the defendant in expiation of his offence, in addition to the imprisonment inflicted on him. 11 East, 46.-CHITTY.
This act is repealed, so far as relates to laying violent hands on a clerk, by 9 Geo. IV. c. 31; by 23 of which, if any person shall arrest any clergyman upon any civil process while he shall be performing divine service, or shall, with the knowledge of such person, be going to perform the same, or returning from the performance thereof, every such offender shall be guilty of a misdemeanour, and, being convicted thereof, shall suffer such punishment, by fine or imprisonment or by both, as the court shall award. The 50 Edw. III. c. 5, and 1 Ric. II. c. 15, upon the same subject, are also repealed by the new act. The arrest, if not on a Sunday, would be good in law. Wats. c. 34.-CHITTY.
to the individual by action, the law also demands public vengeance for the breach of the king's peace, for the loss which the state sustains by the confinement of one of its members, and for the infringement of the good order of society We have seen before(x) that the most atrocious degree of this offence, that of sending any subject of this realm a prisoner into parts beyond the seas, whereby he is deprived of the friendly assistance of the laws to redeem him from such his captivity, is punished with the pains of præmunire and incapacity to hold any office, without any possibility of pardon.(y) And we may also add that, by statute 43 Eliz. c. 13, to carry any one by force out of the four northern counties, or imprison him within the same, in order to ransom him or make spoil of his person or goods, is felony without benefit of clergy in the principals and all accessories before the fact. Inferior degrees of the same offence of false imprisonment are also punishable by indictment, (like assaults and batteries,) and the delinquent may be fined and imprisoned. (2) And, indeed, (a) there can be no doubt but that all kinds of crimes of a public nature, all disturbances of the peace, all oppressions and other misdemeanours whatsoever of a notoriously evil example, may be indicted at the suit of the king.
*IX. The other remaining offence, that of kidnapping, being the [*219
forcible abduction or stealing away of a man, woman, or child from their own country and sending them into another, was capital by the Jewish law:-"He that stealeth a man, and selleth him, or if he be found in his hand, he shall surely be put to death."(b) So, likewise, in the civil law the offence of spiriting away and stealing men and children, which was called plagium and the offenders plagiarii, was punished with death.(c) This is unquestionably a very heinous crime, as it robs the king of his subjects, banishes a man from his country, and may in its consequences be productive of the most cruel and disagreeable hardships; and therefore the common law of England has punished it with fine, imprisonment, and pillory. And also the statute 11 & 12 W. III c. 7, though principally intended against pirates, has a clause that extends to prevent the leaving of such persons abroad as are thus kidnapped or spirited away,
(*) See page 116.
() Stat. 31 Car. II. c. 2.
() West. Symbol. part 2, page 92.
(a) 1 Hawk. P. C. 210.
14 Repealed by 7 & 8 Geo. IV. c. 27: but see 31 Car. II. c. 2, which prohibits the sending of any British subject to any foreign prison.-CHITTY.
is Where a child is stolen for the sake of its clothes, it is the same species of felony as if the clothes were stolen without the child. But it cannot be considered a felony where a child is stolen and not deprived of its clothes. This crime would in general be an aggravated species of false imprisonment; but, without referring it to that class of offences, stealing a child from its parents is an act so shocking and horrid that it would be con sidered the highest misdemeanour, punishable by fine and imprisonment, upon the same principle on which it was decided to be a misdemeanour to steal a dead body from a grave. CHRISTIAN.
Stealing children was, by 54 Geo. III. c. 101, punishable as in cases of grand larceny, but that statute is now repealed, by 9 Geo. IV. c. 31; by 21 of which, "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 pa rents, or any other person having the lawful care or charge of such child, of the posses sion 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 herein before 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 trans ported for the term of seven years, or to be imprisoned, with or without hard labour, 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."-CHITTY.
by enacting that if any captain of a merchant-vessel shall (during his being abroad) force any person on shore or wilfully leave him behind, or refuse to bring home all such men as he carried out, if able and desirous to return, he shall suffer three months' imprisonment.16 And thus much for offences that more immediately affect the persons of individuals.
OF OFFENCES AGAINST THE HABITATIONS OF INDIVIDUALS.
*THE only two offences that more immediately affect the habitations of individuals or private subjects are those of arson and burglary. 1. Arson, ab ardendo, is the malicious and wilful burning the house or outhouse of another man. This is an offence of very great malignity, and much more pernicious to the public than simple theft, because, first, it is an offence against that right of habitation which is acquired by the law of nature as well as by the laws of society; next, because of the terror and confusion that necessarily attend it; and, lastly, because in simple theft the thing stolen only changes its master, but still remains in esse for the benefit of the public; whereas by burning the very substance is absolutely destroyed. It is also frequently more destructive than murder itself, of which, too, it is often the cause, since murder, atrocious as it is, seldom extends beyond the felonious act designed, whereas fire too frequently involves in the common calamity persons unknown to the incendiary and not intended to be hurt by him, and friends as well as enemies. For which reason the civil law (a) punishes with death such as maliciously set fire to houses in towns and contiguous to others, but is more merciful to such as only fire a cottage or house standing by itself.
*Our English law also distinguishes with much accuracy upon this *221] crime. And therefore we will inquire, first, what is such a house as may be the subject of this offence; next, wherein the offence itself consists, or what amounts to a burning of such house; and, lastly, how the offence is punished.
1. Not only the bare dwelling-house, but all out-houses that are parcel thereof, though not contiguous thereto, nor under the same roof, as barns and stables, may be the subject of arson.(b) And this by the common law, which also accounted it felony to burn a single barn in the field, if filled with hay or corn, though not parcel of the dwelling-house. (c) The burning of a stack of corn was antiently likewise accounted arson. (d) And indeed all the niceties and distinctions which
(a) Ff. 48, 19, 28, 12.
3 Inst. 69.
16 By 9 Geo. IV. c. 31, ¿ 30, if any master of a merchant-vessel shall, during his being abroad, force any man on shore, or wilfully 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 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 misdemeanour, 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. So much of the 11 & 12 W. III. c. 7, and of the 58 Geo. III. c. 38, as related to this subject, is repealed by the 9 Geo. IV. c. 31.-CHITTY.
This is declared to be arson, by 7 & 8 Geo. IV. c. 30, 17, and is made a capital of fence; and the setting fire to any crops of corn, grain, or pulse, whether standing or cut down, or to any woods or heaths, is made felony, punishable with transportation for seven