emission is prima facie, an evidence of penetration. Haw. B. 1. c.

41. sect. 1.

The offence of rape is no way mitigated by shewing that the woman at last yielded to the violence, if such her consent was forced for fear of death, or of duress. 1 Haw. 108.

Also, it is not a sufficient excuse in the ravisher, to prove that the woman is a common strumpet; for she is still under the protection of the law, and may not be forced. Ibid.

Nor is it any excuse that she consented after the fact.

Ibid.

It is said by Mr. Dalton, that if a woman, at the time of the supposed rape, do conceive with child by the supposed ravisher, this is no rape, for (he says) a woman cannot conceive, except she doth consent, and this he hath from Stamford and Britton, and Finch, Dalt. c. 160.

But Mr. Hawkins observes, that this opinion seems very questionable; not only because the previous violence is no way extenuated by such subsequent consent, but also, because if it were necessary to shew that the woman did not conceive, the offender could not be tried till such time as it might appear whether she did or not, and likewise because the philosophy of this notion may be very well doubted of. 1 Haw. 108.

And lord Hale says, this opinion in Dalton seems to be no law. 1 H. H. 731.

II. EVIDENCE ON AN INDICTMENT OF RAPE.

The party ravished may give evidence on 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, and is more or less credible, according to the circumstances of fact that concur in that testimony. 1 H. H. 633.

For instance, if the witness be of good fame; if she presently discovered the offence, and made pursuit after the offender; shewed circumstances and signs of the injury, whereof many are of that nature, that only women are the most proper examiners and inspectors; if the place, wherein the fact was done, was remote from people, inhabitants, or passengers; if the offender fled for it: these, and the like, are concurring evidences, to give greater probability to her testimony, when proved by others as well as herself. Ibid.

But on the other side, if she concealed the injury for any considerable time, after she had opportunity to complain; if the place where the fact was supposed to be committed were near to inhabitants, or common recourse or passage of passengers, and she make no outcry when the fact was supposed to be done, when and where it is probable she might be heard by others; or, if a man prove himself to be in another place, or in other company, at the time she charges him with the fact; or if she is wrong in the description of the place, or swears the fact was done in a place where it was impossible the man could have access to her at that time, as if the room was locked up, and the key in the custody of another person; these and the like circumstances carry a strong presumption that her testimony is false or feigned, Ibid.

1

Sir Matthew Hale says, 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 obligation of an oath; and even if she hath not, he thinks that she 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. Ibid. 634.

And sir William Blackstone says, it seems now to be settled, that in such cases infants of any age are to 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 truest and clearest testimony. But, 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 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. (4 B. Com. 214.)

See also, as to this point, 1 East's Cr. L. 441, et seq. where the result of the cases is, that an infant of any age, even of five years, must be sworn.

Ibid. 444.

In the case of Omichund and Barker, in 1744, in chancery, before the lord chancellor Hardwicke, assisted by the lord chief justice Lee, dord chief justice Willes, and lord chief baron Parker, the lord chief justice Lee interrupted the attorney general, sir Dudly Ryder, asserting, on the authority of lord Hale that a child may be examined without oath; and said it had been determined at the Old Bailey, on ma. ture consideration, that a child shall not be admitted as an evidence without oath. And the lord chief baron Parker said, it was so ruled at Kingston assizes before lord Raymond, where, upon an indictment for a rape, he refused the evidence of a child without oath. 1 Atk. 29.

Which case at Kington assizes was as follows: The defendant, at the summer assizes, 1725, was indicted for a rape on the body of a child, then little more than six years old. And because the lord chief baron Gilbert, then judge of assize, refused to adinit the child as an evidence against him, he was acquitted. But at the same assizes an indictment was found against him, for an assault, with an intent to ravish the said child. And this indictment coming to be tried at the next assizes, before the lord chief justice Raymond, the same objection was taken, that the girl, being now but seven years of age, could not be a witness. It was insisted, that it had formerly been held that none, under twelve years of age, could be admitted to be a witness, and that a child of six or seven years of age, in point of reason and understanding, is incompetent. On the other side, it was said, that in capi.

tal cases, which concerned life, this objection might be allowed; but in cases of misdemeanor only, as this was, such a witness might be admitted: they insisted, that the objection only went to the credit of the witness, and Hale says, that the examination of one of the age of nine years has been admitted; and a case at the Old Bailey, 1698, was cited; where, upon such an indictment as this, Ward chief baron admitted one to be a witness who was under the age of ten years, as the child had been examined about the nature of an oath, and had given a reasonable account of it. But Raymond chief justice held, that there was no difference between offences capital and lesser offences in this respect; and that a person who could not be a witness in the one case, could not in the other. The reason why the law prohibits the evidence of a child so young is, because the child cannot be presumed to distinguish between right and wrong; no person has ever been admitted as a witness under the age of nine years, and very seldom under ten. At the Old Bailey, in 1704, this point was thoroughly debated in the case of one Steward, who was indicted on two indictments for rapes upon children. The first was a child of ten years and ten months, and yet that child was not admitted as a witness, before other evidence was given in of strong circumstances, as to the guilt of the defendant, and before the child had given a good account of the nature of an oath. The second indictment against Steward was attempted to be maintained by the evidence of a child of between six and seven years of age: but it was unanimously agreed, that a child so young could not be admitted to be an evidence, and the child's testimony was rejected, without inquiring into any circumstances to give it credit. And it was merely upon the authority of Hale, where it is said that a child of ten years of age may be a witness, that the other child of that age was admitted to be a witness in the first indictment. And in the present case, the child was refused to be a witness. And there not being evidence sufficient without her, the defendant was acquitted. Str. 700.

But after all, it is said to have been determined lately by all the judges upon conference, that in no case shall the testimony of an infant be admitted without oath. See 1 East's Cr. L. 444.

Upon the whole, rape, it is true, is a most detestable crime, and therefore ought severely and impartially to be punished with death; but it must be remembered, that it is an accusation easily to be made, and hard to be proved, and harder to be defended by the party accused, though never so innocent. Therefore a wise jury will be cautious upon trials of offences of this nature, that they be not so much transported with indignation at the heinousness of the offence, as to be over hastily carried to the conviction of the person accused thereof, by the confident testimony sometimes of malicious and false witnesses. H. H. 635, 636.

Of old time rape was felony, for which the offender was to suffer death: afterwards the offence was made lesser, and the punishment changed from death to the loss of those members whereby he offended; that is to say, it was changed to castration and loss of his eyes, un

less she that was ravished, before judgment, demanded him for her husband. 2 Inst. 180. 4 Bl. Com. 211.

By Virginia Laws (1 Rev. Code, ch. 130, sect. 1, p. 245.) "if any man do ravish a woman married, maid, or other, where she did not consent before nor after; or shall ravish a woman married, maid, or other, with force, although she consent after, the person so offending shall be adjudged a felon, and shall suffer death as in case of felony, without the benefit of clergy"

But rape is now punishable by confinement in the penitentiary, for a period not less than ten nor more than twenty-one years. 1 Rev. Code, p. 356, sect. 4.

"If any person shall unlawfully and carnally know and abuse any woman child, under the age of ten years, every such unlawful and carnal knowledge shall be felony, and the offender, being duly convicted thereof, shall suffer as a felon, without benefit of clergy." Ibid. ch. 130, sect. 2, p. 245.

But this being a non-enumerated offence, is now punishable by confinement in the penitentiary, not less than one nor more than ten years. Ibid. p. 402.

If a slave attempt a rape on a white, he may be punished by castration. Ibid. ch. 103, p. 188, sect. 18.

So, an actual rape committed by a slave, or the carnal knowledge and abuse of a female child, is punishable by death, the penitentiary system not embracing the case of a slave. See 1 Rev. Code, ch. 130, p. 245. Ibid. ch. 200, p. 355.

IV. PRINCIPAL AND ACCESSORY,

Mr. Hawkins says, all who are present and actually assist a man to commit a rape, may be indicted as principal offenders, whether they be men or women. 1 Haw. 108.

And, so one woman may be a principal to the ravishment of another.

So also may a man be guilty of a rape on his own wife; as was the case of lord Audley, who held his wife while his servant, by his com mand, ravished her. See State Trials, lord Audley's case.

Accessories before the fact are punished as principal offenders. 1 Rev, Code, p. 356, sect. 4.

to wit.

(A) Warrant for a rape,

Whereas M A, of the said county, hath this day made oath before me, JP, a justice of the peace for the county aforesaid, that on the day of this present month, at in the said county, BO, of &c. did feloniously ravish, and carnally know her the said M A, against her will. These are therefore to command you to take the said B O, and bring him before me, or some other justice of the peace for the county of aforesaid, to answer the said charge, and further to be dealt with according to law. Given under my hand and seal, &c.

NALS.

For COMMITMENTS and other proceedings, see title CRIMI

(B) Indictment for ravishing a woman.

county, to wit.

The jurors, &c. upon their oath present, that A B, late of the pa

rish of

in the county of

gentleman, not having the

fear of God before his eyes, but being moved and seduced by the instigation of the devil, on the day of in the year

and in the

year of the commonwealth, with force and arms, at the parish of in the county of aforesaid, in and upon one A P, spinster, in the peace of God and of the commonwealth then and there being, violently and feloniously did make an assault, and her the said A P, against the will of her the said A P, then and there feloniously did ravish and carnally know, against the form of the statute in such case made and provided, and against the peace and dignity of the commonwealth.

(C) Indictment for carnally knowing and abusing a female child under the age of ten years.

county, to wit.

in the county of

The jurors, &c. upon their oath present, that G D, late of the parish of labourer, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on the day of and in the year in the year of the commonwealth, with force and arms, at the parish aforesaid, in the the county aforesaid, in and upon one EP, spinster, an infant under the age of ten years, to wit, of the age of nine years and upwards, in the peace of God and of the commonwealth then and there being, feloniously did make an assault, and her the said E P then and there, wickedly, unlawfully, and feloniously, did carnally know and abuse, against the form of the statute in such case made and provided, and against the peace and dignity of the commonwealth.

RECOGNIZANCE.

A RECOGNIZANCE is a bond of record, testifying the recogħi.. zor to owe a certain sum of money to some other; and the acknowledging of the same is to remain of record; and none can take it, only a judge or officer of record. Dalt. c. 186.