2. The unlawfully taking, or causing to be taken, any unmarried girl, under the age of sixteen years, out of the possession and against the will of her father or mother, or of any other person having the lawful care or charge of her (a).

VIII. Offences

VIII. Of offences against the female part of her majesty's subjects, that attended with the greatest aggravation is the crime of rape, raptus mulierum, or the "carnal knowledge" (b) of a woman forcibly and against against females. her will. This by the Jewish law (c), was punished with death, in case the damsel was betrothed to another man; and in case she was not betrothed, then a heavy fine of fifty shekels was to be paid to the damsel's father, and she was to be the wife of the ravisher all the days of his life; without that power of divorce, which was in general permitted by the Mosaic law.

The civil law (d) punished with death and confiscation of goods the crime of ravishment: under which it included the offence of forcible abduction, or taking away a woman from her friends: and also the present offence of forcibly dishonouring her; either of which, without the other, was in that law sufficient to constitute a capital crime. Also the stealing away a woman from her parents or guardians, and debauching her, was equally penal by * the [* 253] emperor's edict, whether she consented or was forced: "sive volentibus, sive nolentibus, mulieribus, tale facinus fuerit perpetratum." And this, in order to take away every opportunity of offending in this way from women whom the Roman law supposed 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 pænæ, 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, inducitur. Nisi etenim eam solicitaverit, nisi odiosis artibus circumvenerit, 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 be against the woman's will (e).

Rape was punished by the Saxon laws, particularly those of King Athelstan (f), with death: which was also agreeable to the old Gothic or Scandinavian constitution (g). 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 (h); which continued till after Bracton wrote, in the reign of Henry the Third. But in order to prevert malicious accusations, it was then the law, 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 had suffered; and

(a) 24 & 25 Vict. c. 100, s. 55. Punishment: imprisonment for not more than two years, with or without hard labour.

(b) As to the definition of which, see the stat. 24 & 25 Vict. c. 100, s. 63.

(c) Deut. xxii. 25.

(d) Cod. 9, tit. 13.

(e) See Reg. v. Camplin, 1 Den. 89; Reg. v. Case, Id. 580; Reg. v. Fletcher, 1 L. R. C. C. 39.

(f) Bracton, 1. 3. c. 28.

(g) Stiernh. de Jure Sueon. 1. 3, c. 2.
(h) Leg. Gul. Conq. c. 19.

VOL. II. — 63

afterwards should acquaint the high* constable of the hundred, the [*254] coroners, and the sheriff with the outrage (i); 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 rape is usually now punished on indictment at the suit of the crown, 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 (k), 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.

In the 3 Edw. 1, by the statute Westm. 1, c. 13, the punishment of rape was much mitigated; the offence itself of ravishing a damsel within twelve years of age, 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 offender only to two years' imprisonment, and a fine at the king's will. But this lenity being productive of bad consequences, it was ten years afterwards, in 13 Edw. 1, deemed necessary to make the offence of forcible rape felony by statute Westm. 2, c. 34. And by statute 18 Eliz. c. 7, it was made felony without benefit of clergy.

Rape continued to be punishable with death until the year 1841 (7), when for the capital punishment was substituted transportation, and now the 24 & 25 Vict. c. 100, s. 48, enacts that, whosoever shall be convicted of the crime of rape, shall be guilty of felony, and liable to be kept in penal servitude for life, or for any term not less than five (m) years, or to be imprisoned for any term not exceeding two years, with or without hard labour.

* A male infant, under the age of fourteen years, is presumed by

[* 255] law physically incapable of committing a rape, and therefore cannot be found guilty of it. For though in some cases malitia supplet ætatem, yet, as to this particular species of felony, the law supposes an imbecility of body as well as mind (n). (708)

The civil law seems to suppose a prostitute or common harlot incapable of any injuries of this kind (0): not allowing any punishment for violating the chastity of her, who has indeed no chastity at all, or at least has 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 (p); and, as Bracton well observes (q), “licet meretrix fuerit antea, certe tunc temporis non fuit, cum reclamando nequitiæ ejus consentire noluit." (709)

(i) Glan. 1. 14, c. 6; Bract. 1. 3, c. 28. (k) Id.

(See stat. 4 & 5 Vict. c. 56, s. 3. (m) See 27 & 28 Vict. c. 47, s. 2.

(n) 1 Hale, P. C. 631.

(0) Cod. 9, 9, 22; Dig. 47, 2, 39.
(p) 1 Hale, P. C. 629; 1 Hawk. P. C. 108.
(q) Fol. 147.

(708) See ante, 333, note 607. See, also, Nugent v. State, 18 Ala. 521; State v. Sam, Winston (N. C.), 300.

(709) See Pleasant v. The State, 15 Ark. 624; Wright v. The State, 4 Humph. (Tenn.) 194, which hold that the offense may be committed on a common prostitute as well as on any other female.

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 convietion of the guilty and preservation of the innocent, and therefore to be found in such criminal treatises as discourse of these matters in detail, yet they ought not to be publicly discussed, except in a court of justice. I shall therefore merely add upon this head a few remarks from sir Matthew Hale, with regard to the competency and credibility of witnesses, which may, 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 [* 256] fame (r); if she presently discovered the offence (s), 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 no outcry; these and the like circumstances carry a strong though not conclusive, presumption that her testimony is false or feigned. (710)

Moreover, if the rape were committed on an infant she may still be a competent witness, if she has sense and understanding enough to know the nature and obligations of an oath; or even to be sensible of the wickedness of telling a deliberate lie (t). But no hearsay evidence can be given of the declarations of a child who has not capacity to be sworn, nor can such child be examined in court without oath (u); and 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 deposed to; and that the conviction should not be grounded singly on the unsupported accusation of an infant under years of discretion. There may

[* 257]

(r) In order to shake the credibility of the prosecutrix's testimony, her character for chastity may be impeached by general evidence; but evidence of particular facts for this purpose is inadmissible, and the woman is not compelled to answer whether she had not had connexion with other men, or with a particular person named. R. v. Hodgson,

Russ. & Ry. C. C. 211; R. v. Martin, 6 C. &
P. 562.

(8) See 1 East, P. C. 445.

(t) When the child does not sufficiently understand the nature and obligation of an oath, will the judge put off the trial, for the child to be instructed in the meantime? See Best. Evid. 4th ed. 222.

(u) R. v. Brazier, 1 East, P. C. 444.

(710) See People v. Hulse, 3 Hill, 309. Where the prosecutrix did not disclose the offense till interrogated, and continued her intercouse with the defendant after the act, this was held not enough for conviction. Whitney v. State, 35 Ind. 503. See Barney v. People, 22

Ill. 160; People v. Benson, 6 Cal. 221; State v. Lattin, 29 Conn. 383; Leoni v. State, 44 Ala. 110; Thompson v. State, 38 Ind. 39; State v. Shuttleworth, 18 Minn. 209; Smith v. State, 47

Ala. 540.

The crime of rape is held not to be committed where the will of the woman is overcome by fraud or persuasion. See Lewis v. State, 30 Ala. 54; Don Moran v. People, 25 Mich. 356; Wyatt v. State, 2 Swan. (Tenn.) 394. But see State v. Shepard, 7 Conn. 54. It is otherwise, however, where consent is induced by fear of personal violence. Wright v. The State, 4 Humph. (Tenn.) 194; Pleasant v. The State, 8 Eng. (Ark.) 360.

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 a learned judge (x), "that rape is a most detestable crime, and therefore ought severely and impartially to be punished; 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 extraordinary 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 over hastily carried to the conviction of the person accused thereof, by the confident testimony of sometimes false and malicious witnesses."

The following offences against females-of which the first is a felony, and the three last are misdemeanors-are respectively made punishable by statute (y), as undermentioned: the unlawfully and carnally knowing and abusing any girl under the age of ten years (z), or above the age of ten and under the age of twelve years (a); any indecent * assault upon a female, or attempt to [*258] have carnal knowledge of a girl under twelve years of age (6); and the procuring, by false pretences, false representations, or other fraudulent means, a woman or girl under the age of twenty-one years, to have illicit carnal connexion with a man (c). (711)

The offence next to be noticed likewise relates to the female part of her majesty's subjects, being that of the forcible abduction and marriage of a woman, which is vulgarly called stealing an heiress; this is provided for by the statute just now cited, the 24 & 25 Vict. c. 100, of which sect. 53 enacts that, where any woman of any age has any interest, legal or equitable, present or future, absolute, conditional, or contingent, in any real or personal estate, or is a presumptive heiress or coheiress, or presumptive next of kin, or one of the presumptive next of kin, to any one having such interest; whosoever shall, from motives of lucre, take away or detain such woman against her will, with intent to marry or carnally know her, or to cause her to be married or carnally known by any other person; and whosoever shall fraudulently allure, take away, or detain such woman, being under the age of twenty-one years, out of the possession and against the will of her father or mother, or of any other (x) 1 Hale, P. C. 635.

(y) 24 & 25 Vict. c. 100.

(z) Id. s. 50. Punishment: penal servitude for life, or for not less than five years; or imprisonment for not more than two years, with or without hard labour.

An attempt to commit the above felony may be where the girl consents. Reg. v. Beale, 1 L. R. C. C. 10. ́

(a) Sect. 51. Punishment: penal servitude

for five years; or imprisonment for not more than two years, with or without hard labour.

The above enactment does not take away the power of assenting to an indecent assault. Reg. v. Johnson, L. & C. 632.

(b) Sect. 52. Punishment: imprisonment for not more than two years, with or without hard labour.

(c) Sect. 49. Punishment: imprisonment for not more than two years, with or without hard labour.

(711) In most, if not in all, of the States, these offenses have been made the subject of statute regulation. See Dennis v. The State, 5 Pike (Ark.), 230; Com. v. Bennet, 2 Va. Cas. 235; Com. v. Fields, 4 Leigh (Va.), 648. But see Smith v. The State, 12 Ohio St. 466, 474.

person having the lawful care or charge of her, with intent to marry or carnally know her, or to cause her to be married or carnally known by any other person, shall be guilty of felony (d). And by the same section it is further enacted that any one convicted of an offence against its provisions

*

shall be incapable of taking any estate or interest, legal or equitable, [*259 ] in any real or personal property of such woman, or in which she shall have any such interest, or which shall come to her as such heiress, coheiress, or next of kin as aforesaid; and if any such marriage as aforesaid shall have taken place, such property shall, upon such conviction, be settled in such manner as the Court of Chancery shall upon information at suit of the attorney-general appoint.

An indictment framed upon the above enactment must allege that the taking was for lucre, but the motive may be presumed from the interest mentioned in the indictment. It must appear that the woman was taken away against her will. And though possibly the marriage or defilement might be by her subsequent consent, being won thereunto by flatteries after the taking, yet this is felony, if the first taking were against her will; and so vice versá, if the woman be originally taken away with her own consent, yet if she afterwards refuse to continue with the offender, and be forced against her will, she may from that time as properly be said to be taken against her will, as if she never had given any consent at all; for till the force was put upon her, she was in her own power (e). A woman, thus taken away and married, may be sworn and give evidence against the offender, though he is her husband de facto; contrary to the general rule of law; because he is no husband de jure, in case the actual marriage was also against her will. Lastly, the intent laid in the indictment may be proved by the acts or declarations of the defendant, or may be inferred from other circumstances (ƒ).

*

[* 260]

Another offence, differing from the above, is that of forcibly taking away or detaining against her will, a woman, of any age, with intent to marry or carnally know her, or to cause her to be married or carnally known by any other person; this is a felony, and punishable as below mentioned (g).

The attempting by injurious means to procure abortion is likewise criminal and indictable, for it is enacted:

1. That any woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever, with the like intent, shall be guilty of felony (h).

(d) Punishment: penal servitude for any term not exceeding fourteen nor less than five years; or imprisonment for not more than two years, with or without hard labour. See Reg. v. Burrell, L. & C. 354; R. v. Wakefield, Townsend, St. Tr. ii. 112; 2 Lewin, C. C. 1; where the parties were indicted for and convicted of a conspiracy to commit a violation of the repealed stats. 3 Hen. 7, c. 2, and 4 & 5 Ph. & M. c. 8.

(e) Reg. v. Swendsen, 14 St. Tr. 559.

(f) See Reg. v. Barratt, 9 C. & P. 387.

(g) 24 & 25 Vict. c. 100, s. 54. Punishment: penal servitude for not more than fourteen years nor less than five years,—or imprisonment for not more than two years, with or without hard labour.

(h) 24 & 25 Vict. c. 100, s. 58. Punishment: penal servitude for life, or for not less than five years, or imprisonment for not more than two years, with or without hard labour, and with or without solitary confinement.