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of the act is now practially useless, by provisions which make the marriage void.
3. Rape. This crime is attended with greater aggravation than forcible marriage, and is the carnal knowledge of a woman, forcibly and against her will.
Hebrew and Roman Laws, Under the Jewish law, it was punished with death, if the damsel was betrothed to another man. If she was not betrothed, then a heavy fine of fifty shekels was to be paid the damsel's father, and she was to be the wife of the ravisher until death. The civil law punished the crimes of forcible abduction, and also that of rape, with death, and confiscation of goods. The stealing away a woman from her parents or guardians, and debaucbing her, was equally penal, by the emperor's edict, whether she consented or was forced. The Roman law assumed, that a woman would never go astray, without the seduction and arts of the other sex, and therefore by making highly penal the solicitation of the men, they strove to secure effectually the honor of the women. But the English law does not entertain quite such sublime ideas of the honor of either sex; and demands proof, that the rape was agaiast the woman's will.
Punishment Under English Law. Rape was punished under the Saxon laws with death. From the time of William I to Henry III, it was punished by castration and the loss of eyes. In the reign of Edward I, the offence of ravishing a damsel within the age of twelve years, with or without her consent, or of any other woman without her consent, was reduced to a trespass. But this lenity produced terrible consequences, and ten years later, the offence was again made a felony. By statute of Elizabeth, it was without benefit of clergy, and where the child was under ten years of age, her consent was immaterial.
The Parties—their Competency. A boy under fourteen years is presumed by law incapable of committing a rape; the law supposing an imbecility of body in this case, as well as of mind. Although, under the civil law, a prostitute is deemed incapable of being injured in this manner; yet this is not the case in England, where it is deemed a felony to force a concubine or a harlot.
Prompt Information Given. To prevent malicious accusations, the law reads, that the woman should immediately after the outrage, go to the next town, and there make discovery of the wrong to some credible persons, and acquaint the officials. No time of limitation is fixed, but the jury will rarely give credit to a stale complaint.
The Testimony of the Woman. The party ravisked is a competent witness, but the credibility of her statement must be left to the jury. If she be of good repute; if she gave prompt information, and made search for the offender, and if the party accused fled because of it; these facts would give greater probability to her testimony. But if she be of evil fame, and her evidence be uncorroborated ; if she concealed the injury for a considerable time after she had the opportunity to complain ; if the place specified was one from which it was possible to be heard, if she had made an outcry, and she made none; these and like circumstances carry a strong but not conclusive presumption, that her story is false.
Infant, Under Twelve. Evidence. Where the crime is asserted to have been committed on a girl under twelve years of age, she may be a competent witness, if she comprehends the nature and obligations of an oath, or even be sensible of the wickedness of telling a lie. There is no determinate age, at which the oath of a child ought to be admitted or rejected. Where the evidence of children is admitted, it is much to be wished, 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 solely on the unsupported accusation of an infant, under years of discretion. The charge of rape, said Hale, is an accusation easy to make, hard to be proved, but harder to be defended by the party accused, though innocent.
4. Crime against Nature, This unnatural crime may be committed with either man or beast. It ought to be clearly proved, and then be severely punished, for if the charge be false, the accuser deserves a punishment inferior only to that for the crime itself. This crime caused the destruction of Sodom and Gomorrah, by fire from heaven.
Misdemeanors, The misdemeanors against the persons of individuals are assaults, batteries, wounding, false imprisonment and kidnapping.
5. Assault. 6. Battery. 7. Wounding. We have heretofore considered these offences as private wrongs, for which a satisfaction in damages is given to the party aggrieved. Considered in a public light, as a breach of the king's peace, they are indictable, and punishable with fine and imprisonment. The most atrocious species of battery, is the beating of a clergyman, or of a clerk in orders.
8. False Imprisonment. Beside the private satisfaction given to the individual by action, the law also demands public vengeance for the loss the state has sustained by the confinement of one of its subjects.
9. Kidnapping. This is the forcible abduction of a person from his own country, and the sending him into another. The Jewish law punished this offence capitally, as did also the civil law. The common law of England punished this heinous crime with fine, imprisonment, and formerly with the pillory.
CHAPTER XVI.-OFFENCES AGAINST THE HABITA
TIONS OF INDIVIDUALS.
1. Arson. This is the wilful and malicious burning the house or out-house of another man. This is an offence of very great malignity, because it is an offence against the right of habitation, which is acquired by the laws of nature and of society; and because of the terror and confusion that necessarily attend it; and because in the case of simple theft, the thing stolen re. mains in esse for the benefit of the public; whereas by burning, it is destroyed. It is frequently more destructive than murder itself, of which is is often the cause. For which reason, the civil law punished with death, such as maliciously set fire to contiguous houses in towns, but was more lenient to those who only fired a cottage or other isolated house. Our English law assigns grades to this crime.
The Houses Burned. Not only the bare dwellings, but all out-houses, that are parcels thereof, but not contiguous thereto, as barns and stables, may be the subject of arson. The common law also accounted it felony to burn a barn in a field, if filled with hay or corn; and even the burning of a stack of grain was likewise accounted arson.
Firing One's Own House. The offence of arson may be committed by wilfully firing one's own house, provided the house of a neighbor be likewise burned; but if the mischief terminates with one's own dwelling, the offence is not felony, no matter what was the intent. For by the common law, no intent to commit a felony amounts to the same crime, though it does, in some special cases, by statute. However, the wilful firing one's own house, in a town, is a high misdemeanor, and severely punished. And, if a landlord or reversioner fire his own house, while it is occupied by a tenant, it is arson ; for during the lease, the house is the property of the tenant.
Must be a Malicious Burning. A bare attempt, by actually setting fire to a house, unless it absolutely burns, does not fall within the description of incendit et combussit; which words, in the days of law Latin were essential to all indictments for arson. The burning and consuming of any part suffices, though the fire be afterwards extinguished. It must be a malicious burning, otherwise it is a trespass only. If a person shooting a gun, happens to set fire to the thatch of a house, this act is not felony, according to Sir Matthew Hale. A servant negligently setting fire to a house or otherwise forfeited 1001., or was sent to the house of correction for eighteen months.
Punishment. By the Saxon law, arson was punished with death. In the reign of Edward I, the incendiaries were burnt, by a species of lex talionis, as was the punishment under the Gothic constitution. The punishment has been repeatedly changed by numerous statutes. II. BURGLARY.
Defined. This is nocturnal housebreaking, called by the ancient law hamesecker, as it is termed at this date in Scotland. It is a very heinous offence, not only because of the terror which it inspired, but because of it being a forcible invasion of the right of habitation, which every individual might acquire even in a state of nature. In civil society, the laws assist the weaker party, and protect him, if his habitation be assailed.
Defence of One's Dwelling. The law of England terms a man's house his castle, and will never suffer it to be violated with impunity. For this reason, no outer doors can in general be broken open to execute any civil process; though in criminal cases, the public safety supersedes the private. On this principle, a man may assemble people together lawfully, to the number of eleven, to defend his house, which he is not permitted to do in any other case.
A Burglar. Coke defines a burglar as “he that by night breaketh and entereth into a mansion house, with intent to commit a felony.” Four things are to be considered : the time, the place, the manner, and the intent.
1. The Time. It must be by night, for in the day time, there is no burglary. We have seen, in the case of justifiable homicide, how much more heinous the law deems attacks by night than by day; allowing the party attacked by night to kill the assailant with impunity. Anciently, the day was accounted to begin at sunrise, and to end at sunset, but the better opinion seems to be, that if there be daylight or crepusculum enough to discern a man's face, it is no burglary. But this does not extend to moonlight, or many midnight burglars would not receive full punishment. The malignity of the offence arises from it being done at a time when sleep disarmed the owner, and rendered his home defenceless.
2. The Place. It must be in a mansion-house. The breaking open of a church is burglary, as it is the mansion-house of God; and the breaking open the gates of a town in the night comes under the same head, as the mansion-house of the municipal corporation. No distant barn or warehouse is looked upon as a man's castle of defence, nor is a breaking into of houses wherein no man resides, deemed burglary. A house, however, wherein a man sometimes lives, and which the owner has left for a short time, with intent to return, animo revertendi, is an object of burglary, though no occupant be in it at the time. And if the barn, stable or warehouse be parcel of the mansion-house, and within the same common enclosure, though not under the same roof, or contiguous, a burglary may be committed therein.
Mere Lodgers. A lodging-room in any private house is the mansion, for the time being, of the lodger, if the owner does not himself dwell in the house, or if he and the lodger enter by different outward doors. But if the owner himself lives in the house, and has but one outward door, at which he and his lodgers enter, such lodgers are only inmates. So, too, the house of a corporation, inhabited in separate apartments by its officers, is the mansion-house of the corporation only.
A Shop. If a man hires a shop, parcel of another man's