66 66 "to any port in the United Kingdom of Great Britain and Ire- The third section contains regulations to be observed by masters, &c. of vessels leaving seafaring men or boys in foreign parts on account of sickness, in respect of the payment of their wages, and imposes a penalty of £20 on such masters, &c. not complying with such regulations, to be recovered as above, and authorizes the issuing a like commission to examine witnesses abroad. CHAP. XVI. OF OFFENCES MORE PARTICULARLY AGAINST OFFENCES against the persons of women are Rape-Forci- Bract. 147. Vide Cro. Cir. Dalt. c. 105. 607. B. Par. 55. 5 Edw. 4. 6. 1 Rush. Col. par. 2. 100. Bract. 147, 148. S. P. C. 24. Pulton, 134. 1 Hale, 630. 633. Rush. Coll. part 2. 100. As to THE FIRST POINT, viz. What shall be called rape. Sect. 2. It seems, that rape is an offence in having unlawful and carnal knowledge of a woman by force and against her will. Sect. 3. But it is said, that no assault upon a woman in order to ravish her, however shameless and outrageous it may be, if it proceed not to some degree of penetration, and also of emission, can amount to a rape. Sect. 4. It was a question before 18 Eliz. c. 7. Whether a rape could be committed on a child of the age of six or seven years; but by that statute, "Whosoever shall unlawfully and "carnally know and abuse any woman-child under the age of ten 66 years, shall suffer as a felon without clergy." (2) Sect. 5. Upon an indictment for this offence, it is no way material whether such child consented, or were forced; yet it must be proved, that the offender entered into her body, &c. As to THE SECOND POINT, viz. What evidence is necessary. Sect. 6. Offences of this nature are not any way mitigated by shewing that the woman at last yielded to the violence, if such her consent was forced by fear of death, or of duress. Sect. 7. Nor is it any excuse, that she consented after the fact, or that she was a common strumpet; for she is still under the protection of the law, and may not be forced. But it was anciently said to be no rape to force a man's own concubine. Sect. 8. Also it hath been said by some to be no rape to force a woman who conceives at the time; for it is said, that if she had not consented, she could not have conceived: but this opinion seems very questionable, not only because the previous violence is no way extenuated by such a 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 very well be doubted of. Sect. 9. It is a strong, but not a conclusive presumption against a woman, that she made no complaint in a reasonable time after the fact. (3) "alia matrona. Olim quidem corruptores virginitatis "et castitatis suspendebant et eorum fautores; modernis "tamen temporibus aliter observatur, quod pro corrup"tione virginis, amittuntur membra, ut prædictum est, "et de aliis sequitur alia gravis pana corporalis, sed "tamen sine amissione vita et membrorum." (De Corona, lib. 3. 146.) The law thus continued till S Ed. 1. and then by st. of W. 1. it was enacted, "That none ravish "or take a damsel within age with her consent nor "against her consent, nor no dame, damsel of age, nor any woman against her will; and if any do "it, the party may sue within 40 days and com"mon right shall be done; and if none sue within "40 days, the king shall have the suit, and the party convict shall suffer two years imprison"ment, and be ransomed at the king's pleasure.” By the statute of W. 2. c. 34, "Rape is again "made felony." As (2) Sir M. Hale is of opinion that it is rape to have carnal connexion with an infant under the age of twelve years, because, he observes, twelve years is the age of consent in a female. (H. P. C. p. 731.) But Mr. J. Blackstone says that the law has been generally held to extend to infants under ten, (4 Com. c. 15.), though it should seem, he adds, that infants between ten and twelve are still under the protection of the stat. of W. 1. (3) By the ancient law, according to Bracton, "Cum igitur virgo corrupta fuerit et oppressa, statim "cum factum recens fuerit, cum clamore et hutesio "debet accurrere ud villas vicinas et ibi injuriam sibi "illatam probis hominibus ostendere, sanguinem, et vestes "suas sanguine tinctas, et vestium scissuras, et sic ire "debet ad præpositum hundredi et ad servientem do"mini regis et ad coronatores et vicecomitem et ad primum comitatum faciat appellum, &c.” (De Coronâ, 147.) As to THE THIRD POINT, viz. How rape may be punished. Sect. 10. All who are present and actually assist a man to B. 2. c. 29. commit a rape, may be indicted as principal offenders, whether s. 7. 89. they be men or women. (4) Dalt. c. 107. Hutt. 115. 148. Dalt. c. 99. St. Tr. 1. 366. Rush. v. 2. p. 93. Vide Lord Baltimore's Case, 4 Burr. 2179. Sect. 11. It is said, that of old time it was felony, and conse- 1 Hale, 627. quently punishable with death, especially if the party ravished Bract. 147, were a virgin, unless such virgin would accept of the offender S. P. C. 21, for her husband, in which case she might save his life by marry- 22, 23. ing him. But afterwards it was looked upon as a great misde- 2 Inst. 181. meanor only, but not felony; and the offender was punished Crom. 32. with the loss of his eyes and testicles: and by the statute of con. Westminster, 1. c. 13. it was reduced to a trespass, subjecting 1. c. 40. the offender to two years imprisonment, and a fine at the king's 2 Inst. 180. will. But the smallness of the punishment proving a great en- Quere F. Utl. couragement to the offence, it was made felony again, by the 49 statute of Westminster, 2. c. 34. and by 18 Eliz. c. 7. it is excluded from the benefit of clergy. (5) 66 Forcible Marriage. By 3 Hen. 7. c. 2. IT IS RECited, "That women, as well "maidens as widows and wives, having substances, some in goods moveable, and some in lands and tenements, and some "being heirs apparent unto their ancestors, have, for the lucre "of such substances, been oftentimes taken by misdoers con"trary to their will, and after married to such misdoers, or to "others by their assent, or defiled, to the great displeasure of "God, and contrary to the king's laws, and disparagements of "the said women, and utter heaviness and discomfort of their "friends, and to the evil ensample of all others;" AND ENACTED, "That what person or persons that taketh any woman so against "her will unlawfully, that is to say, maid, widow, or wife, that "such taking, procuring, and abetting to the same, and also "receiving wittingly the same woman so taken against her will, "and knowing the same, be felony, and that such misdoers, "takers, and procurators to the same, and receitors knowing the "said offence in form aforesaid, be reputed and judged as prin"cipal felons." (4) An infant under 14 years of age is by law presumed incapable to commit a rape, for the law presumes him impotent as well as wanting discretion; but he may be a principal in the second degree as aiding and assisting, if it appear that he had a mischievous discretion, as well as in other felonies. (1 H. H. P. C. 730.) (5) It is said by Barrington, (Observation on the Ancient Statutes,) that rape anciently meant seduction of the female, and not a forcible carnal knowledge, which was denominated" viol." Though this has been denied by others, yet he seems supported by good authorities for the distinction. It may also be matter of curiosity to state, that the famous judgment of Sancho Panza, in the rape cause which came before him while governor of Barataria, is not a fictitious case, but is to be found in a learned writer on the Criminal Law of France. Vonglans, in his chapter on the "Viol," or Rape, " + Sect. Fleta, 1. B. Cor. 169. has the following passage: "Je r'apporte de Brunan 1 Hale, 660, 661. and 5 St. Tr. 468. Far. 101, 102. Hobart, 182. 485. 488. 492. Dalis. 22. C. Car. 485. 489. Hobart, 182. 1 Hale, 660. Fulwood's Case, C. Car. 493. Sect. 2. But by 3 Hen. 7. c. 2. s. 1. it is provided, "That "this act shall not extend to any person taking any woman only claiming her as his ward or bond-woman." 66 + Sect. 3. By 39 Eliz. c. 9. " All and every person and persons as shall be convicted or attainted of or for any offence "made felony by the said act 3 Hen. 7. c. 2. shall lose his and "their benefit of clergy: provided always that this act shall not "extend to take away clergy, but only from such person and persons as shall be principals or procurers, or accessaries be"fore such offence committed." In the construction of the 3 Hen. 7. c. 2. the following points have been resolved. Sect. 4. FIRST, That the indictment must expressly set forth, both that the woman taken away had land or goods, or was heir apparent, and also that she was married or defiled, because no other case is within the preamble of the statute to which the enacting clause clearly refers; for it does not say, that “what person, &c. that taketh any woman against her will," but "what person that taketh any woman so against her will." 66 12 Co. 20. 100. 110. 2 Vent. 243. See also Swinden's Case, 5 St. Tr. 468. 3 Inst. 61. S. P. C. 44. C. Car. 482. Sect. 5. SECONDLY, That the indictment ought also to allege that the taking was for lucre, because the words of the preamble are so. Sect. 6. But it need not set forth, that it was with an intention to marry or defile the party, because the words of the statute neither require such an intention, nor does the want thereof any way lessen the injury. Sect. 7. THIRDLY, That it is no manner of excuse, that the woman at first was taken away with her own consent, because 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 had never given any consent at all; for till the force was put upon her, she was in her own power. Sect. 8. FOURTHLY, That it is not material whether a woman so taken away be at last married, or defiled, with her own consent or not, if she were under the force at the time, because the offender is in both cases equally within the words of the statute, and shall not be construed to be out of the meaning of it, for having prevailed over the weakness of a woman, whom by so base means he got into his power. Sect. 9. FIFTHLY, That those who after the fact receive the offender, but not the woman, are not principals within this statute, because the words are, "receiving wittingly the same woman so taken, &c." but it seems clearly, that they are accessaries after the offence, according to the known rules of common law. Sect. 10. SIXTHLY, That those who are only privy to the marriage, but no way parties to the forcible taking away, or consenting thereto, are not within the statute. Sect. Sect. 11. SEVENTHLY, That where a woman is taken by force C. Car. 488. in the county of A. and married in the county of B. the offender Hobart, 183. may be indicted and found guilty in the county of B. because 1 Hale, 600. the continuing of the force there amounts to a forcible taking within the statute. Car. 484. + Sect. 12. EIGHTHLY, That the woman thus taken away and Fulwood's married, may be sworn and give evidence against the offender Case, Cro. who so took and married her, though she be his wife de facto; but it seems, that there ought to be concurring evidence to prove 1 Hale, 661. the whole fact. + Sect. 15. NINTHLY, It is said (a) to be questionable, whe- (a) 1 Hale, ther if a woman, thus forcibly married, freely without constraint 661. live with him who thus marries her any considerable time, her examination may be read in evidence on the trial. But it has been since ruled, (b) upon debate, that a wife is a competent (b) Rex v. Perevidence for as well as against her husband, on the trial of an in- ry, Bristol dictment on this statute, although she has cohabited with him gaol-delivery, from the day of her marriage. Seduction. 1794. such as take away maidens, 3 H. 7. c. 2. By 4 and 5 Philip and Mary, c. 8. IT IS RECITED, "That Punishment of maidens and women children of noblemen, gentlemen and others, as well such as be heirs apparent to their ancestors, as others, having left unto them by their father, or other ancestor and friends, lands, tenements, and hereditaments, or other great substances in goods and chattels moveable, for and to the intent to advance them in marriage, somewhat like according to their degrees, and as might be most for their surety and comfort, as well for themselves as of all other their friends and kinsfolks, be oftentimes, unawares to their said friends or kinsfolks, by flattery, trifling gifts, and fair promises, of many unthrifty and light personages, and thereto by the intreaty of persons of lewd demeanour, and others that for rewards buy and sell the said maidens and children, secretly allured and won to contract matrimony with the said unthrifty and light personages, and thereupon either with slight or force oftentimes be taken and conveyed away from their said parents, friends, or kinsfolks, to the high displeasure of Almighty God, disparagement of the said children, and the extreme continual heaviness of all their friends; which ungodly dealing, for lack of wholesome laws to the redress thereof, remaineth a great, familiar, and common mischief in this our commonwealth :" it is therefore ENACTED, "That it shall not "be lawful to any person and persons to take or convey away, or 66 66 cause to be taken or conveyed away, any maid or woman child 3 Mod. 168, unmarried, being under the age of sixteen years, out of or from 169. "the possession, custody or governance, and against the will of 4 Mod. 145. "the father of such maid or woman child, or of such person or 66 persons to whom the father of such maid or woman child, by "his last will and testament, or by any other act in his life-time, "hath or shall appoint, assign, bequeath, give or grant the order, "keeping, education or governance of such maid or woman "child, except such taking and conveying away as shall be had, "made or done by or for such person or persons, as without "fraud |