If the principal die before he be attainted, the rescuer shall only be fined and imprisoned. H. P. C. 116.

Or, if he prevent the arresting of a felon. H. P. C. 116.

If there be a rescue of a person arrested at the suit of a common person, he shall have an action against the rescuer. Vide Escape, (B 1, &c.) Or, if there be a rescue of a distress made.

As to Escape, Vide Escape, (A 1, 2.)

(S) Felony &c. by statutes.

(S 1.) Duress:-[and other offences by an officer.] By the stat. 14 Ed. 3. 10. if a gaoler compels a prisoner by duress to be an appellor, it is felony. Vide imprisonment, (I). (x)

(S 2.) Rape.

Rape was felony at the common law, and afterwards altered to the loss of eyes and testicles. 2 Inst. 180.

By the st. W. 1. 3 Ed. 1. 13. the penalty was mitigated to fine and imprisonment.

But by the st. W. 2. 13 Ed. 1. 34. it is provided, that if a man ravish a woman, &c. he shall have judgment of life and member.

And if she did not consent she shall have an appeal; but if she afterwards consent she loses the appeal, yet he shall be indicted at the king's suit. 2 Inst. 433.

By the st. 6 R. 2. 6. if the woman afterwards assent to the ravisher, both shall lose their inheritance, dower, or joint estate after the death of the husband or ancestor, and the next in blood shall enter; and he or the husband shall have an appeal.

The indictment shall say, rapuit, which no word supplies. Co. L.

124. a.

Rape is, when a man by force has carnal knowledge of a woman against her will. Co. L. 123. b.

Though it be of a niefe by the lord. Co. L. 123 b. 2 Inst. 181.
There must be carnal knowledge. (Vide H. P. C. 117. 3 Inst. 60).
Penetratio as well as emissio. H. P. C. 117. 3 Inst. 60. (y).
Though consent be forced, by the fear of death or duress, it is a

But if there be consent, it is no rape. 2 Inst. 433.

If the woman prove privement enseint it is evidence of consent.

(a) 1. So by 3 Edw. 1. c. 9., the sheriff, coroner, or any other bailiff concealing felonies, or not arresting felons, or otherwise not doing their duty, are to be imprisoned for a year, and fined at the king's pleasure.-2. So by 33 G. 5. c. 55., two justices, at petty sessions, may fine constables, &c. for neglect of duty.—3. And in the case of a coroner, the 25 G. 2. c. 29. s. 6., enacts that when convicted of extortion, or wilful neglect of duty, or misdemeanour in office, he may be removed from office by the judgment of the court in which he is convicted, unless such office be annual, or annexed to some other office. -4. So by 11 G. 1. c. 4. s. 6., chief officers of corporations absenting themselves from, or hindering the elections of, other officers, may be imprisoned.-5. And as to what shall be an absenting within the statute, see 5 East, 372.-6. As to the punishment of frauds by officers of the Milbank Penitentiary, see 56 G. 3. c. 63. s. 12.. 7. As to that for receiving presents by officers in India, see

33 G. 3. c. 52. s. 62.

(y) I Russell, 803. 806. But penetration is presumptive proof of emission. 1 East, P.C. 440. 2 Leach, 854.

So,

So, if she be an harlot; yet an harlot may be ravished.

Or, was his concubine before.

By the st. 18 El. 7. carnal knowledge of an infant under ten years old, is felony, though there be consent.

Whoever aids the rape is a ravisher. H. P. C. 118.

Vide post, (Y 12.)

(S 3.) Forcible marriage of a woman contrary to 3 H. 7.2.

By the st. 3 H. 7. 2. it is enacted, that persons who take a maid, widow, or wife, having substance in goods or lands, or being an heir apparent, against her will to marry or defile her, their abettors and receivers, knowing the same, are felons. (z)

If she be married, though not deflowered, it is within the statute. R. 1 Vent. 244.

Though she consent to the marriage, being under a force. H. P. C.

119.

All accessories, before or after, are principals. 3 Inst. 61.

H. P. C. 119.

R. 1 Vent. 244.

The woman is a good witness. But forcible marriage of a niefe or ward, is not within the statute. H. P. C. 118. 3 Inst. 61.

Nor privies to the marriage, if not privy to the force. H. P. C. 119. If the taking be in one county and the marriage in another, the county where they were married may enquire of the forcible taking. H. P. C. 119.

Vide post, (Y 12.)

(S 4.) Buggery.

By the st. 25 H. 8. 6. revived by the st. 5 El. 17. When any commit buggery with mankind, or beast, and is convicted by verdict, confession, or outlawry, he shall suffer as a felon, without benefit of clergy.

Vide post, (Y 13.)

(S 5.) Poligamy.

By the st. 1 (a) Jac. 11. If any in England or Wales being married, marry again, the former husband or wife being living, it is felony (b), unless the husband or wife were absent beyond sea for seven years before, (c) or in the realm (d) without knowledge of his or her life, or the

(z) Without clergy. 39 Eliz. c. 9.

(a) 2d, though vulgo 1st

(b) By 55 G. 3. c. 67. s. 1., the punishment for bigamy is the same as that for grand or petit larceny.

(c) 1. In the construction of this statute it has been holden, that if a woman marries a husband in Ireland, and afterwards such husband, still living, marries another husband in England, it is within the act.-2. But that if she marries a husband in England, and afterwards, such husband still living, marries another person in Ireland, it is not within the act. 1 Hale, 692, 693. 1 East, P. C. 465, sed vide. 1 Hawk. c. 44. s. 7. Kel. 80.-3. So, if A. take B. to husband in Holland, and then in Holland takes C. to husband, living B., and then B. dies, and then A. living, C. marries D. in England, this is not marrying a second husband the former being alive; the marriage to C. living B. being simply void. 1 Hale, 693.

(d) The words are, within his majesty's dominions; and in lord Hale's judgment comprehend England, Wales, and Scotland. 1 Hale, 693

3

former

former marriage was within the age of consent (e), or annulled by sentence in the ecclesiastical court (ƒ), or there was a divorce. Provided not to forfeit dower, or corrupt blood.

A marriage after a divorce à mensa et thoro, is not felony within the statute. H. P. C. 122. R. Mar. 101. (causa adulterii.) R. Kelg. 27. 3 Inst. 89. (g)

Nor a marriage of one beyond sea, and of another within the realm. R. 1 Sid. 171. (h)

But a divorce for severity, is no excuse of felony. R. Mar. 101. Dub. Cro. Car. 462. But said it was R. to be within the proviso. Kelg. 27. (i)

The first husband is no witness to prove his marriage. R. Ray. 1.

(S 6.) Malicious mayhem.

By the st. 5 H. 4. 5. if any cut out the tongues, or put out the eyes of any the king's liege people, of malice prepense, it is felony.

By the st. 22 & 23 Car. 2. 1. if any of malice, and by lying in wait, cut out or disable the tongue, put out the eye, slit the nose, cut off the nose or lip, cut off or disable any member of any subject, with intent to mayhem or disfigure him, it is felony in him, his aiders, or abettors, without clergy.

By the st. 22 & 23 Car. 2. 7. If any maliciously, in the night time, kill or destroy any horses, sheep, or other cattle, it is felony. (k)

(S7.) Felonious hunting, &c.

By the st. 37 Ed. 3. 19. if any steal and carry away a hawk, not doing according to the ordinance, it is felony.

And by the st. 1 H. 7. 7. the king's council or the justices of peace, on information of hunting by night, or with painted faces, may issue a warrant to arrest the persons, and if any arrested conceal those with him, or if any make rescous or disobeysance to the warrant, so that it

(e) 1. Which is fourteen in a man, and twelve in a woman. 1 Blk. Com. 436.2. And the construction is, that if either of the parties were within such age at the time of the first marriage, not only the one within age but the other also who was above it, is entitled to the benefit of the exception. 3 Inst. 89. 1 Hale, 694. 1 Hawk. c. 42. s. 6.-3. But in a case of this kind it seems that if the parties afterwards, when at the age of consent, agree to the marriage, as such agreement would complete the contract, and would indeed be the real marriage, a second marriage would be within the act. 4 Blk. Com. 164. 1 East, 468. 1 Russell, 288.

(f) 1. But asentence of the spiritual court against a marriage in a suit of jactitation of marriage, is not conclusive evidence so as to stop the counsel for the crown from proving the marriage; the sentence having decided on the invalidity of the marriage only collaterally and not directly. 11 St. Tr. 262. 1 Leach, 146. 1 Hawk. c. 42. s. 11.-2. And further, admitting such sentence to be conclusive, yet that the counsel for the crown may avoid the effect of such sentence by proving it to have been obtained by fraud or collusion. Ibid.

(g) And if there be a divorce à vinculo matrimonii, and an appeal by one of the parties, though this suspends the sentence and may possibly repeal it, yet a marriage pending that appeal will be aided. 3 Inst. 89. 1 Hale, 694.

(h) Upon this first exception the construction has been, that it will apply_though the party in England have notice that the other is living. 1 Hale, 693. 3 Inst. 88 4 Blk. Com. 164. Vide 1 East, P. C. 466.

(i) A marriage solemnized in England, is indissoluble by any thing except an act of the legislature. Lolly's case, 1 Russell, 287.

(4) Vide 2 Russell, 1682, et seq.

cannot

cannot be executed, or if any be convict of hunting in the night, or with vizors or painted faces, it is felony.

(S 8.) Soldiers departing without licence, &c.

By the stat. 18. H. 6. 19. If any, being mustered, and entered the king's soldier of record, and receiving the king's wages, departs from his captain, unless disabled by sickness to go, of which he shall give notice to his captain, and repay his money: or, being a soldier, man of arms, or archer, so mustered of record, and passing the seas with his captain, returns without licence from his captain under his hand and seal for reasonable cause, during his term, he is guilty of felony. But this act is of little force; for the antient manner of retaining and covenant with soldiers is discontinued. R. 6. Co. 27. 3 Inst. 86. Yet by the stat. 5 El. 5. it was extended to mariners and gunners. By the stat. 7 H. 7. 1. if any soldier, being no captain, retained with the king, being in wages and retained, or taking prest to serve the king on the sea, or upon land beyond sea, shall depart out of the king's service without licence of the captain, it is felony without clergy.

And by the st. 3 H. 8. 5. if any soldier, being no captain, retained with the king, who shall be in wages and retained, or take any prest to serve the king upon the sea, or on the land, or beyond sea, departs without licence of the lieutenant, it is felony without clergy, (not being within the orders of holy church.)

By the st. 2 & 3 Ed. 6. 2. if any, having served the king, departs without licence, out of the king's service, or out of garrison, it is felony without clergy.

The statutes 7 H. 7. 1. and 3 H. 8. 5. are perpetual. R. 6. Co. 27. 3 Inst. 86.

And departure from a conductor is felony, for he is a petit captain. R. Cro. Car. 72. (1)

(S 9.) Egyptians, rogues, wandering soldiers, &c.

By the st. 1 & 2 Ph. & M. 4. persons calling themselves Egyptians, conveyed into the realm and remaining here a month, if above 19 years old, are felons without clergy, unless in 20 days they betake themselves to an honest way of living.

And by the st. 5 El. 20. such as continue a month at one or several times in company of vagabonds, commonly called Egyptians, or by apparel, speech, or behaviour counterfeiting themselves such, if above 14, shall suffer as felons without clergy.

By the st. 39 El. 4. dangerous rogues, banished the realm by justices of peace, and returning without a licence, be felons.

() 1. Serving foreign states is a misdemeanor at common law. 1 East, P. C. 81. 4 Bĺk. Com. 122. 2. And 3 Jac. 1. c. 4. s. 18. makes it felony in subjects going out of the realm to serve, &c.- 3. For the construction of which act, see 3 Inst. 80. 1 East, P. C. 82.-4. The 9 Geo. 2. c. 50. makes the enlisting, or procuring others to enlist, &c. into foreign service, felony without elergy.-5. And by 29 Geo. 2. e. 17. though no enlisting-money be paid or received. 6. The 29 Geo. 2. c. 17. makes entering the French king's service without leave, &c. felony without clergy.— 7. And in like manner the 57 Geo. 3. c. 70. made perpetual by 57 Geo. 5. c. 7. makes seducing the soldiers or sailors from their allegiance.-8. And the persuading, &c. sailors to desert, is punishable by 1 Geo. 1. c. 47. & 37 Geo. 3. c. 12.

By

By the st. 39. El. 17. idle and wandering soldiers or mariners, who will not betake to any lawful course of life, or to the place of their birth or abode; and such who come from beyond sea, and have not a testimonial from a justice of peace, or counterfeit such testimonial, or have one known to be counterfeit, be felons without clergy.

By the st. 1 Jac. 7. a dangerous rogue in sessions shall be branded, and if he afterwards beg or wander, shall be adjudged a feion without clergy. Vide Justices of Peace, (B 76.)

(S 10.) Exportation of sheep, &c.

By the st. 8 El. 3. such as, after conviction for the first offence, shall export sheep alive out of the realm, are guilty of felony; but not to corrupt blood, or lose dower.

By the st. 13 & 14 Car. 2. 18. if any export into Scotland, or other foreign parts, or pack or load, or cause to be packed or loaden, of intent to be exported, any sheep of the breed of England or Wales, or the dominions thereof, or any wool, woolfells, mortlings, shorlings, yarn made of wool, woolflocks, fuller's earth, or fulling clay, it is felony.

But, by the st. 7 & 8 W. 3. 28. this act is repealed, as to making the exportation of wool felony. (7)

(S 11.) Refusing abjuration, &c.

By the st. 35 El. 1. if any above 16, who shall for a month, without cause, refuse to hear divine service, go about to persuade any of the realm to impugn the queen's authority in cases ecclesiastical, or to that end persuade to forbear coming to church according to law, or to be present at a place of religious assembly contrary to law; or shall of himself or by incitement of others be present at such assembly, and being convict of such offence, and for not conforming three months after conviction, being required by the justices, in quarter sessions, &c. to abjure the realm, shall refuse to abjure, or after abjuration shall refuse to depart at the time limited, or shall return, &c. he shall be a felon without benefit of clergy. Provided not to corrupt blood, or lose dower.

By the st. 3 Jac. 4. if any pass out of the realm to serve, or do voluntarily serve any foreign prince, without having taken the oath of allegiance: or (being a gentleman or of higher degree, or a captain, lieutenant, or conductor of soldiers) without giving a bond of 201. penalty conditioned not to be reconciled to the see of Rome, or to enter into

(1) 1. The clandestine transportation of sheep or wool out of the kingdom, to the detriment of its staple manufacture, called owling, from its being usually carried on in the night, was forbidden at common law. 4 Blk. Com. 154. Mirr. c. 1. s. 3.—2. And made the subject of criminal prosecution by different statutes, beginning with 11 Edw. 3. c. 1.-3. But the 28 Geo. 3. c. 38. repeals all former acts relating to this offence, (except so much of the 9 & 10 W. 3. c. 40. as relates to wool within ten miles of the sea side in Kent or Sussex, and to persons residing within fifteen miles of the sea in those counties,) and after imposing various penalties and forfeitures for conveying sheep or wool out of the kingdom, proceeds to create an offence in the opposing any person putting the act in execution. 1 Russell, 177, 178.-4. By s. 56. persons hindering, &c. officers seizing sheep, wool, &c. or being armed or disguised, and rescuing sheep, wool, &c. to be transported.

VOL. IV.

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any