THE civil law seems to suppose a prostitute or common harlot incapable of any injuries of this kind: not allowing any punishment for violating 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: for, as Bracton well observes", "licet meretrix fuerit antea, certe tune “ temporis non fuit, cum reclamando nequitiae ejus confentire noluit."

As to the material facts requifite 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 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 fir Matthew Hale, with regard to the competency and credibility of witnesses; which may, falvo pudore, be confidered.

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 the is to be believed, must be left to the jury upon the circumstances of fact that concur in that teftimony. 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 fide, if the be of evil fame, and stands unsupported by others; if the concealed the injury for any confiderable time after she had opportunity to complain; if the

* Cod. 9. 9. 22. Ff. 47.2.39.
81 Hal. P. C. 629. 1 Hawk. P. С. 108.

h fol. 147.

place,

place, where the fact was alleged to be committed, was where it was poffible she might have been heard, and she made no outcry; these and the like 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, the may still be a competent witness, if the hath sense and understanding to know the nature and obligations of an oath; and, even if the hath not, it is thought by fir Matthew Hale1 that the ought to be heard without oath, to give the court information; though that alone will not be sufficient to convict the offender. And he is of this opinion, first, because the nature of the offence being secret, there may be no other possible proof of the actual fact; though afterwards there may be concurrent circumstances to corroborate it, proved by other witnesses: and, secondly, because the law allows what the child told her mother, or other relations, to be given in evidence, since the nature of the case admits frequently of no better proof; and there is much more reason for the court to hear the narration of the child herself, than to receive it at second hand from those who swear they heard her say so. And indeed it is now fettled, that infants of any age are to be heard; and, if they have any idea of an oath, to be also sworn: it being found by experience that infants of very tender years often give the clearest and truest testimony. But in any of these cases, whether the child be sworn or not, it is to be wished, in order to render her evidence credible, that there should be some concurrent teftimony, of time, place and circumstances, in order to make out the fact; and that the conviction should not be grounded fingly on the unsupported accusation of an infant under years of difcretion. There may be therefore, in many cafes 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 fuch as the jury is bound to believe. For one excel

lence of the trial by jury is, that the jury are triors of the credit of the witnesses, as well as of the truth of the fact.

"IT is true, says this learned judge, that rape is a most "deteftable crime, and therefore ought feverely and impartially " to be punished 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 cafes of malicious profecutions 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 fo much eafe be " imposed upon, without great care and vigilance; the heinouf" ness of the offence many times transporting the judge and jury " with so much indignation, that they are overhastily carried to "the conviction of the perfon 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 the 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 fo difficult to be proved, that the accufation 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 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

1

treats it, in it's very indictments, as a crime not fit to be named; “ peccatum illud horribile, inter christianos non nominandum." A taciturnity observed likewife by the edict of Constantius and Constans': " ubi fcelus est id, quod non proficit fcire, jubemus infur“ gere leges, armari jura gladio ultore, ut exquifitis poenis fubdan“ tur infames, qui funt, vel qui futuri funt, rei." Which leads me to add a word concerning it's punishment.

THIS the voice of nature and of reason, and the express law of God, determine to be capital. Of which we have a fignal 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 antient law in some degree imitated this punishment, by commanding such mifcreants to be burnt to death"; though Fleta fays 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 fame, namely, by hanging: and this offence (being in the times of popery only fubject to ecclesiastical censures) was made fingle felony by the statute 25 Hen.VIII. c. 6. and felony without benefit of clergy by statute 5 Eliz. c. 17. And the rule of law herein is, that, if both are arrived at years of discretion, agentes et confentientes pari poena plectantur.

THESE are all the felonious offences, more immediately against the personal security of the subject. The inferior offences, or mifdemesnors, that fall under this head, are affaults, 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 nothing farther to add to what has already been observed in the preceding book of these com

mentaries; when we confidered them as private wrongs, or civil injuries, for which a fatisfaction 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 fine and imprisonment; or with other ignominious corporal penalties, where they are committed with any very atrocious defign. As in case of an affault with an intent to murder, or with an intent to commit either of the crimes last spoken of; for which intentional assaults, in the two last cafes, indictments are much more usual, than for the absolute perpetration of the facts themselves, on account of the difficulty of proof: and herein, befides heavy fine and imprisonment, it is usual to award judgment of the pillory.

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 facred character, as the minister and embassador 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 the peace broken shall be before the king; that is by indictment in the king's courts: and the assailant may also be fued 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 grieved, it may be fued for before the bishop; whereas otherwise to sue in any spiritual court, for civil damages for the battery, falls within the danger of praemunire. But suits are, and always were, allowable in the spiritual court, for money agreed to be given as a commutation for penance". 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 purfued for one and the fame offence: an indictment, for the breach