fiscation or 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 verpetratum." 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 arts 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 poenae, 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 rapinam, [*211] inducitur. Nisi etenim eam solicitaverit, nisi odiosis artibus circum venerit, 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 maleficium," go to the next town, and there make discovery to some credible persons 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 Arragon (6), 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 it 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. [*212] *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 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 of (w) Bracton, l. 3, c. 28. (z) Stiernh. de jure Sucon. 1.3, c. 2. LL. Gull Conq c. 19. s) 1 Hal. P. C. 631. (a) Glan. 7. 14, c. 6. Bract. I., c. 28. render 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 ter 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 (11). 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 (12). A male infant, under the age of fourteen years, is presumed by law incapable to commit a rape, and therefore its seems cannot be found guilty of it. For though in other felonies malitia supplet aetatem, as has in some cases been shewn; yet, as to this particular species of felony, the law supposes an imbecility of body as well as mind (e) (13). The civil law seems to suppose a prostitute or common harlot incapable of any injuries of this kind (f): not allowing *any pu- [*213] nishment 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 (g): for, as Bracton well observes (h), "licet meretrix fuerit antea, certe tunc temporis non fuit, cum reclamando nequitiae 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 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 (14). I shall there (d) 1 Hal. P. C. 631. (e) Ibid. (f) Cod. 9. 9. 22. FF. 47. 2. 39. (11) In New-York these two offences are punished by imprisonment not less than ten years. The carnal knowledge of a woman above the age of ten without her consent, by administering to her any substance or liquid as will prevent effectual resistance, is punish ed with imprisonment not exceeding five years. (2 R. S. 663. § 22, 23.) (12) All these statutes are repealed by 9 Geo. IV. c. 31, which enacts, section 16, that every Derson convicted of the crime of rape shall auffes death as a felon. Section 17, that if any person shall unlawfully and carnally know and abuse any girl ander he age of ten years, every such offender shall be guilty of felony, and being convicted thereof, shall suffer death as a felon: and VOL. II. 70 (g) 1 Hal. P. C. 629. 1 Hawk. P C. 108. if any person shall unlawfully and carnally know and abuse any girl, being above the age of ten years, and under the age of twelve years, every such offender shall be guilty of a misdemeanor, and being convicted thereof, shall be liable to be imprisoned, with or with out hard labour, for such term as the court shall award. And sect. 18 enacts that the carnal knowledge shall be complete upon proof of penetration only. See also 2 R. S. 735. § 18. (13) But an infant under fourteen may be guilty as an abettor, if shewn to possess a mischievous discretion. 1 Hale, 630. (14) See Chitty, Crim. law, 810. Stark on Evid. forenerely add upon this head a few remarks from sir Matthew Hale: with regard to the competency and credibility of witnesses; which inay, 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 [*214] no outcry; these and the like circumstances carry a strong but not conclusive presumption that her testimony is false or feigned (15), (16). 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 (17). 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 (i) 1 Hal. P. C. 634. (15) 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, Holroyod, 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 be fore a magistrate, are admissible, though not authenticated by her signature. 2 Leach, 854. 996. (16) It has been held, by a majority of the judges, that having carnal knowledge of a married woman, under circumstances which induce her to suppose it is her husband, does not amount to the crime of rape. Rex v. Jack son, R. & R. C. C. 487. That decision took place in Trinity term, 1822; and though it may not hitherto have been expressly overrul ed, it seems very doubtful whether it would now be supported. At the Kent Winter Gacl Delivery, in the very same year, a similar case occurred, Rex v. Pearson, in which, upon the prosecutrix swearing that she believed the prisoner to be her husband, and consequently made no resistance, the editor, as counsel for the prisoner, objected that the offence was not rape and that the indictment could not be supported. But Bayley, I., refused to stop the prosecution, intimating his own strong opinion that such facts did amount to rape, and declaring his intention to reserve the point for the opinion of the twelve judges, if it should be necessary; which, however, was not the case, the prisoner being acquitted on the merits. The only plausible ground for contending that such an offence does not amount to rape, seems to be, the total absence of force on the part of the man, and of resist ance on the part of the woman; but that does not appear to be a solid or well-founded argument; because the fraud practised would, by construction of law, be considered as force, as in Wakefield's case of abduction, ante, 209, notes (7) and (8), and in other cases that might be mentioned, and would thus support the ne cessary allegation of force in the indictment. (17) When the child does not sufficiently understand the nature and obligation of ar oath, the judge will put off the trial, for the child to be instructed in the mean time. Bac. Ab. Evid. a. Leach, 430. n given in evidence, since the nature of the case admits frequently of no bet ter proof. But it is now settled, [Brazier's case, before the twelve judges P. 19 G. III.] that no hearsay evidence can be given of the declaration o 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 accusa. tion 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. "It is true, says this learned judge (k), that rape is a most [*215] detestable crime, and therefore ought severely 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 extraor dinary 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 overhastily carried on to the conviction of the person accused thereof, by the confident testimony of sometimes false and malicious wit IV. What has been here observed, especially with regard to the man ner 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 (18), (10). It will be more eligible to imitate in this (k) 1 Hal. P. C. 635. (18) As to the decisions, see 1 East P. C. 480. 437. Bac. Ab. Sodomy. Hawk. b. 1. c. 4. 1 Hale, 669, 679. Com. Dig. Justices, s. 4. Russ. & Ry. C. C. 331. If committed on boy under fourteen, it is felony in the agent only 1 Hale, 470. 3 Co. Inst. 59. As to sending threatening letters, charging a party with this offence, see ante, 144, note 3. As to offence of soliciting another to commit the offence, see 2 East, 5. (19) By stat. 9 Geo. IV. c. 31, 15, every person guilty of this offence, either with man kind or with any animal, shall suffer death as a felon. And, by 18, it is directed, that the proof of penetration only shall be sufficient for the purpose of conviction. In New-York the crime is punishable by imprisonment not more than 10 years. (2 R. S. 689, § 20:) our statute, 2 R. S. 735, § 18, is similar to the 18th section of the English Act, 9 Geo. IV. e. 31; in the description of the of fence, however, our Act uses the world beast, not animal. See 1 Russel 568, as to the word beast respect the delicacy of our English law, which treats it, in its very indict ments, as a crime not fit to be named: “peccatum illud horribile, inter [*216] christianos non nominandum (k)." A taciturnity observed *like. wise by the edict of Constantius and Constans (1); “ubi scelus est id, quod non proficit soire, jubemus insurgere leges, armari jura gladie ultore, ut exqusitis poenis 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 hea ven; so that this is an universal, not merely a provincial precept. Aud our ancient law in some degree imitated this punishment, by command. ing such miscreants to be burnt to death (n); though Fleta (o) says they should be buried alive; either of which punishments was indifferently used for this crime among the ancient 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. c. 17. And the rule of law herein is that if both are arrived at years of discretion, agentes et consentientes par poenae plectantur (q). These are all the felonious offences more immediately against the persunal security of the subject. The inferior offences or misdemeanors, 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 nothing further to add to what has already been observed in the preceding book of these commentaries (r); when we consi der them as private wrongs, or civil injuries, for which a satisfaction of remedy is given to the party aggrieved. But, taken in a public [*217] 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) (20). As in case of an assault with an intent to murder, or with an intent to commit either of the crimes last spoken of (21); for which intentional 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 (22). |