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THE Civil law feems to fuppofe a proftitute 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 fo hardly of offenders, as to cut off all opportunity of retreat even from common ftrumpets, 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 wohave forfaken that unlawful courfe of life: for, as Bracton well obferves", "licet meretrix fuerit antea, certe tunc 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 fuch a nature, that though neceffary to be known and settled, for the conviction of the guilty and prefervation of the innocent, and therefore are to be found in fuch criminal treatises as difcourfe of these matters in detail, yet they are highly improper to be publicly difcuffed, except only in a court of juftice. I fhall 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 she 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 she 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.
1 Hal. P. C. 629. 1 Hawk. P. C. 108.
place, where the fact was alleged to be committed, was where it was poffible she might have been heard, and she made no outcry; thefe and the like circumftances carry a ftrong, but not conclufive, prefumption that her teftimony is false or feigned.
MOREOVER, if the rape be charged to be committed on an infant under twelve years of age, fhe may still be a competent witnefs, if the hath sense and understanding to know the nature and obligations of an oath; and, even if she hath not, it is thought by fir Matthew Hale' that she ought to be heard without oath, to give the court information; though that alone will not be fufficient to convict the offender. And he is of this opinion, first, because the nature of the offence being fecret, there may be no other poffible proof of the actual fact; though afterwards there may be concurrent circumstances to corroborate it, proved by other witneffes: and, fecondly, because the law allows what the child told her mother, or other relations, to be given in evidence, fince the nature of the cafe 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 fay fo. And indeed it is now settled, 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 trueft teftimony. But in any of these cases, whether the child be fworn or not, it is to be wifhed, in order to render her evidence credible, that there fhould be fome concurrent tef timony, of time, place and circumstances, in order to make out the fact; and that the conviction should not be grounded fingly on the unfupported accufation 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 such as the jury is bound to believe. For one excel
i 1 Hal. P. C. 634.
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 accufation 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 obfervation; 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 ease be "imposed upon, without great care and vigilance; the heinouf"nefs of the offence many times tranfporting the judge and jury "with so much indignation, that they are overhaftily carried to "the conviction of the perfon accused thereof, by the confident teftimony of fometimes falfe and malicious witneffes."
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 deteftable, may be applied to another offence, of a ftill 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, fo eafily charged, and the negative fo difficult to be proved, that the accufation fhould be clearly made out: for, if falfe, it deferves a punishment inferior only to that of the crime itself.
I WILL not act fo difagreeable part, to my readers as well as myself, as to dwell any longer upon a fubject, the very mention of which is a disgrace to human nature. It will be more eligible to imitate in this refpect the delicacy of our English law, which
1 Hal. P. C. 635.
treats it, in it's very indictments, as a crime not fit to be named; peccatum illud horribile, inter chriftianos non nominandum." A taciturnity observed likewife by the edict of Conftantius and Conftans': "ubi fcelus eft id, quod non proficit fcire, jubemus infurgere 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 difpenfation, by the destruction of two cities by fire from heaven: fo that this is an universal, not merely a provincial, precept. And our antient law in some degree imitated this punishment, by commanding fuch 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. But now the general punishment of all felonies is the fame, namely, by hanging: and this offence (being in the times of popery only subject to ecclefiaftical cenfures) was made fingle felony by the statute 25 Hen. VIII. c. 6. and felony without benefit of clergy by ftatute 5 Eliz. c. 17. And the rule of law herein is, that, if both are arrived at years of difcretion, 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 misdemefnors, that fall under this head, are assaults, batteries, wounding, falfe 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 obferved in the preceding book of these com
1 Cod. 9. 9. 31.
m Levit. xx. 13. 15.
a Brit. c. 9.
mentaries; when we confidered 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 fubjects, they are alfo indictable and punishable with fine and imprisonment; or with other ignominious corporal penalties, where they are committed with any very atrocious defign. As in cafe of an affault with an intent to murder, or with an intent to commit either of the crimes last spoken of; for which intentional affaults, in the two laft cafes, indictments are much more ufual, than for the abfolute perpetration of the facts themselves, on account of the difficulty of proof: and herein, besides heavy fine and imprisonment, it is usual to award judgment of the pillory.
THERE is alfo one fpecies of battery, more atrocious and penal than the reft, 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 ftatute called articuli cleri, 9 Edw. II. c. 3. that if any perfon 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 affailant 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 grieved, it may be fued for before the bishop; whereas otherwise to fue in any fpiritual 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 perfon guilty of fuch 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