Front Page Titles (by Subject) CHAPTER XV.: OF OFFENCES AGAINST THE PERSONS OF INDIVIDUALS. - Commentaries on the Laws of England in Four Books, vol. 2
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
Also in the Library:
CHAPTER XV.: OF OFFENCES AGAINST THE PERSONS OF INDIVIDUALS. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 2 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893).
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
OF OFFENCES AGAINST THE PERSONS OF INDIVIDUALS.
**205]Having in the preceding chapter considered the principal crime or public wrong that can be committed against a private subject, namely, by destroying his life, I proceed now to inquire into such other crimes and misdemeanours as more peculiarly affect the security of his person while living.
Of these some are felonies, and in their nature capital; others are simple misdemeanours, and punishable with a lighter animadversion. Of the felonies, the first is that of mayhem.
1. Mayhem, mayhemium, was in part considered, in the preceding book,(a) as a civil injury; but it is also looked upon in a criminal light by the law, being an atrocious breach of the king’s peace, and an offence tending to deprive him of the aid and assistance of his subjects. For mayhem is properly defined to be, as we may remember, the violently depriving another of the use of such of his members as may render him the less able, in fighting, either to defend himself or to annoy his adversary.(b) And, therefore, the cutting off or disabling or weakening a man’s hand or finger, or striking out his eye or foretooth, or depriving him of those parts the loss of which in all animals abates their courage, are held to be mayhems. But the cutting off his ear or nose, or the like, are not held to be mayhems at common law, because they do not weaken but only disfigure him.
**206]By the antient law of England, he that maimed any man whereby he lost any part of his body was sentenced to lose the like part, membrum pro membro;(c) which is still the law in Sweden.(d) But this went afterwards out of use, partly because the law of retaliation, as was formerly shown,(e) is at best an inadequate rule of punishment, and partly because upon a repetition of the offence the punishment could not be repeated. So that, by the common law as it for a long time stood, mayhem was only punishable with fine and imprisonment,(f) unless perhaps the offence of mayhem by castration, which all our old writers held to be felony: “et sequitur aliquando pœna capitalis, aliquandoperpetuum exilium, cum omnium bonorum ademptione.”(g) And this although the mayhem was committed upon the highest provocation.(h)
But subsequent statutes have put the crime and punishment of mayhem more out of doubt. For, first, by statute 5 Hen. IV. c. 5, to remedy a mischief that then prevailed of beating, wounding, or robbing a man and then cutting out his tongue or putting out his eyes to prevent him from being an evidence against them, this offence is declared to be felony, if done of malice prepense; that is, as Sir Edward Coke(i) explains it, voluntarily and of set purpose, though done upon a sudden occasion. Next in order of time is the statute 37 Hen. VIII. c. 6, which directs that if a man shall maliciously and unlawfully cut off the ear of any of the *[*207king’s subjects, he shall not only forfeit treble damages to the party grieved, to be recovered by action of trespass at common law as a civil satisfaction, but also 10l. by way of fine to the king, which was his criminal amercement. The last statute, but by far the most severe and effectual of all, is that of 22 & 23 Car. II. c. 1, called the Coventry act, being occasioned by an assault on Sir John Coventry in the street, and slitting his nose, in revenge (as was supposed) for some obnoxious words uttered by him in parliament. By this statute it is enacted that if any person shall of malice aforethought and by lying in wait unlawfully cut out or disable the tongue, put out an eye, slit the nose, cut off a nose or lip, or cut off or disable any limb or member, of any other person, with intent to maim or disfigure him, such person, his counsellors, aiders, and abettors, shall be guilty of felony without benefit of clergy.(k)1
Thus much for the felony of mayhem: to which may be added the offence of wilfully and maliciously shooting at any person in any dwelling-house or other place; an offence of which the probable consequence may be either killing or maiming him. This, though no such evil consequence **208]ensues, is made felony without benefit of clergy by statute 9 Geo. I. c. 22; and thereupon one Arnold was convicted in 1723 for shooting at lord Onslow, but, being half a madman, was never executed, but confined in prison, where he died about thirty years after.2
II. The second offence, more immediately affecting the personal security of individuals, relates to the female part of his majesty’s subjects; being that of their forcible abduction and marriage; which is vulgarly called stealing an heiress. For, by statute 3 Hen. VII. c. 2, it is enacted that if any person shall for lucre take any woman, being maid, widow, or wife, and having substance either in goods or lands, being heir-apparent to her ancestors, contrary to her will, and afterwards she be married to such misdoer, or by his consent to another, or defiled; such person, his procurers and abettors, and such as knowingly receive such woman, shall be deemed principal felons; and, by statute 30 Eliz. c. 9, the benefit of clergy is taken away from all such felons, who shall be principals, procurers, or accessories before the fact.3
In the construction of this statute it hath been determined,—1. That the indictment must allege that the taking was for lucre; for such are the words of the statute.(l) 2. In order to show this, it must appear that the woman has substance, either real or personal, or is an heir-apparent.(m) 3. It must appear that she was taken away against her will. 4. It must also appear that she was afterwards married or defiled. And though possibly the marriage or defilement might be by her subsequent consent, being won thereto by flatteries after the taking, yet this is felony, if the first taking were against her will;(n)4 and so vice versa, if the woman be originally taken away by 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 *[*209be 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.(o) It is held that 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.(p) In cases indeed where the actual marriage is good by the consent of the inveigled woman obtained after her forcible abduction, Sir Matthew Hale seems to question how far her evidence should be allowed; but other authorities(q) seem to agree that it should even then be admitted; esteeming it absurd that the offender should thus take advantage of his own wrong, and that the very act of marriage, which is a principal ingredient of his crime, should (by a forced construction of law) be made use of to stop the mouth of the most material witness against him.5
An inferior degree of the same kind of offence, but not attended with force, is punished by the statutes 4 & 5 Ph. and Mar. c. 8, which enacts that if any person above the age of fourteen unlawfully shall convey or take away any woman child unmarried, (which is held(r) to extend to bastards as well as to legitimate children,) within the age of sixteen years, from the possession and against the will of the father, mother, guardians, or governors, he shall be imprisoned two years, or fined at the discretion of the justices; and if he deflowers such maid or woman child, or without the consent of parents contracts matrimony with her, he shall be imprisoned five years, or fined at the discretion of the justices, and she shall forfeit all her lands to her next of kin during the life of her said husband.6 So that as these stolen marriages, under the age of sixteen, were usually upon mercenary views, this act, besides punishing the seducer, wisely removed the temptation. But this latter part of the act is now rendered **210]almost useless by provisions of a very different kind, which make the marriage totally void,(s) in the statute 26 Geo. II. c. 33.7
III. A third offence, against the female part also of his majesty’s subjects, but attended with greater aggravation than that of forcible marriage, is the crime of rape, raptus mulierum, or the carnal knowledge of a woman forcibly and against her will. This, by the Jewish law,(t) 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(u) punishes the crime of ravishment with death and confiscation of goods; under which it includes both the offence of forcible abduction, or taking away a woman from her friends, of which we last spoke; and also the present offence of forcibly dishonouring them; either of which without the other is in that law sufficient to constitute a capital crime. Also, the stealing away a woman from her parents or guardians, and debauching her, is equally penal by the emperor’s edict, whether she consent or is forced: “sive volentibus, sive nolentibus mulieribus, tale facinus fuerit perpetratum.” And this, in order to take away from women every opportunity of offending in this way; whom the Roman law supposes never to go astray without the seduction and art 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 pœnæ, 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. **211]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 must be against the woman’s will.
Rape was punished by the Saxon laws, particularly those of king Athelstan,(w) with death; which was also agreeable to the old Gothic or Scandinavian constitution.(x) 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;(y) which continued till after Bracton wrote, in the reign of Henry the Third. But, in order to prevent malicious accusations, it was then the law (and, it seems, still continues to be so in appeals of rape)(z) that the woman should immediately after, “dum recens fuerit maleficium,” go to the next town, and there make discovery to some credible person of the injury she has suffered, and afterwards should acquaint the high constable of the hundred, the coroners, and the sheriff with the outrage.(a) This seems to correspond in some degree with the laws of Scotland and Aragon,(b) which require that complaint must be made within twenty-four hours; 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 it is usually now punished by indictment at the suit of the king, 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(c) 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.
*[*212In the 3 Edw. I., by the statute Westm. 1, c. 13, the punishment of rape was much mitigated; the offence itself of ravishing a damsel within age, (that is, twelve years old,) 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 the most terrible consequences, it was in ten years afterwards, 13 Edw. I., found necessary to make the offence of forcible rape felony, by statute Westm. 2, c. 34. And by statute 18 Eliz. c. 7, it is made felony without benefit of clergy; as is also the abominable wickedness of carnally knowing and abusing any woman child under the age of ten years; in which case the consent or non-consent is immaterial, as by reason of her tender years she is incapable of judgment and discretion. Sir Matthew Hale is indeed of opinion that such profligate actions committed on an infant under the age of twelve years, the age of female discretion by the common law, either with or without consent, amount to rape and felony, as well since as before the statute of queen Elizabeth;(d) but that law has in general been held only to extend to infants under ten, though it should seem that damsels between ten and twelve are still under the protection of the statute Westm. 1, the law with respect to their seduction not having been altered by either of the subsequent statutes.8
A male infant under the age of fourteen years is presumed by law incapable to commit a rape, and therefore, it seems, cannot be found guilty of it. For though in other felonies malitia supplia ætatem, as has in some cases been shown, yet, as to this particular species of felony, the law supposes an imbecility of body as well as mind.(e)9
The civil law seems to suppose a prostitute or common harlot incapable of any injuries of this kind;(f) not allowing *[*213any punishment for violating the chastity of her who hath indeed no chastity at all, or at least hath 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:(g) for, as Bracton well observes,(h) “licet meretrix fuerit antea, certe tunc temporis non fuit, cum reclamando nequitiæ ejus consentire noluit.”
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 conviction of the guilty and preservation of the innocent, and therefore are to be found in such criminal treatises as discourse of these matters in detail, yet they are highly improper to be publicly discussed, except only 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 fame; if she presently discovered the offence 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 **214]like circumstances carry a strong but not conclusive presumption that her testimony is false or feigned.10
Moreover, 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 obligations of an oath, or even to be sensible of the wickedness of telling a deliberate lie.11 Nay, though she hath not, it is thought by Sir Matthew Hale(i) that she ought to be heard without oath, to give the court information; and others have held that what the child told her mother or other relations may be given in evidence, since the nature of the case admits frequently of no better proof. But it is now settled [Brazier’s case, before the twelve judges, P. 19, Geo. III.] that no hearsay evidence can be given of the declaration of a child who hath not capacity to be sworn, nor can such child be examined in court without oath; and that 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; and that the conviction should not be grounded singly on the unsupported accusation of an infant under years of discretion. There may 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.
*[*215“It is true,” says this learned judge,(j) “that rape 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 easy to be made, hard to be proved, but harder to be defended by the party accused, though innocent.” He then relates two very 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 on to the conviction of the person accused thereof by the confident testimony of sometimes false and malicious witnesses.”
IV. What has been here observed, especially with regard to the manner of proof, which ought to be more clear in proportion as the crime is the more detestable, may be applied to another offence of a still deeper malignity,—the infamous crime against nature, committed either with man or beast; a crime which ought to be strictly and impartially proved, and then as strictly and impartially punished. But it is an offence of so dark a nature, so easily charged, and the negative so difficult to be proved, that the accusation should be clearly made out; for if false, it deserves a punishment inferior only to that of the crime itself.
I will not act so disagreeable a part, to my readers as well as myself, as to dwell any longer upon a subject the very mention of which is a disgrace to human nature. It will be more eligible to imitate, in this respect, the delicacy of our English law, which treats it in its very indictments as a crime not fit to be named: “peccatum illud horribile, inter Christianos non nominandum.”(k) A taciturnity observed likewise by the edict of Constantius and Constans:(l) “ubi scelus est id, quod non proficit scire, jubemus insurgere leges, armari jura *[*216gladio ultore, ut exquisitis pœnis subdantur infames, qui sunt, vel qui futuri sunt rei.” Which leads me to add a word concerning its punishment.
This the voice of nature and of reason and the express law of God(m) determined to be capital. Of which we have a signal instance long before the Jewish dispensation by the destruction of two cities by fire from heaven; so that this is a universal, not merely a provincial, precept. And our antient law in some degree imitated this punishment, by commanding such miscreants to be burned to death,(n) though Fleta(o) says they should be buried alive; either of which punishments was indifferently used for this crime among the antient Goths.(p) But now the general punishment of all felonies is the same, namely, by hanging; and this offence (being in the times of popery only subject to ecclesiastical censures) was made felony without benefit of clergy by statute 25 Hen. VIII. c. 6, revived and confirmed by 5 Eliz. c. 17. And the rule of law herein is, that if both are arrived at years of discretion, agentes et consentientes pari pœna plectantur.(q)
These are all the felonious offences more immediately against the personal security of the subject. The inferior offences or misdemeanours that fall under this head are assaults, batteries, wounding, false imprisonment, and kidnapping.
V. VI. VII. With regard to the nature of the three first of these offences in general, I have nothing further to add to what has already been observed in the preceding book of these commentaries,(r) when we consider them as private wrongs or civil injuries, for which a satisfaction or remedy is given to the party aggrieved. But, taken in a public light, as a breach of the king’s peace, an affront to his government, and a damage done to his subjects, they are also indictable and punishable with fines and imprisonment, or with other ignominious corporal penalties, where they are committed with any very atrocious design;(s) as in case of an assault with an intent to murder, or with an intent to commit either of the **217]crimes last spoken of; for which intentional assaults, in the two last cases, indictments are much more usual than for the absolute perpetration of the facts themselves, on account of the difficulty of proof; or, when both parties are consenting to an unnatural attempt, it is usual not to charge any assault, but that one of them laid hands on the other with intent to commit, and that the other permitted the same with intent to suffer, the commission of the abominable crime before mentioned. And in all these cases, besides heavy fine and imprisonment, it is usual to award judgment of the pillory.12
There is also one species of battery more atrocious and penal than the rest which is the beating of a clerk in orders or clergyman, on account of the respect and reverence due to his sacred character as the minister and ambassador of peace. Accordingly, it is enacted, by the statute called articuli cleri, 9 Edw. II. c. 3,13 that if any person lay violent hands upon a clerk, the amends for the peace broken shall be before the king, that is, by indictment in the king’s courts; and the assailant may also be sued before the bishop, that excommunication or bodily penance may be imposed, which if the offender will redeem by money, to be given to the bishop or the party aggrieved, it may be sued for before the bishop: whereas, otherwise, to sue in any spiritual court for civil damages for the battery falls within the danger of præmunire.(t) But suits are, and always were, allowable in the spiritual court for money agreed to be given as a commutation for penance.(u) So that upon the whole it appears that a person guilty of such brutal behaviour to a clergyman is subject to three kinds of prosecution, all of which may be pursued for one and the same offence: an indictment for the breach of the king’s peace by such assault and battery; a civil action for the special damage sustained by the party injured; and a suit **218]in the ecclesiastical court, first pro correctione et salute animæ, by enjoining penance, and then again for such sum of money as shall be agreed on for taking off the penance enjoined; it being usual in those courts to exchange their spiritual censures for a round compensation in money,(v) perhaps because poverty is generally esteemed by the moralists the best medicine pro salute animæ.
VIII. The two remaining crimes and offences against the persons of his majesty’s subjects are infringements of their natural liberty; concerning the first of which, false imprisonment, its nature and incidents, I must content myself with referring the student to what was observed in the preceding volume,(w) when we considered it as a mere civil injury. But, besides the private satisfaction given to the individual by action, the law also demands public vengeance for the breach of the king’s peace, for the loss which the state sustains by the confinement of one of its members, and for the infringement of the good order of society. We have seen before(x) that the most atrocious degree of this offence, that of sending any subject of this realm a prisoner into parts beyond the seas, whereby he is deprived of the friendly assistance of the laws to redeem him from such his captivity, is punished with the pains of præmunire and incapacity to hold any office, without any possibility of pardon.(y) And we may also add that, by statute 43 Eliz. c. 13,14 to carry any one by force out of the four northern counties, or imprison him within the same, in order to ransom him or make spoil of his person or goods, is felony without benefit of clergy in the principals and all accessories before the fact. Inferior degrees of the same offence of false imprisonment are also punishable by indictment, (like assaults and batteries,) and the delinquent may be fined and imprisoned.(z) And, indeed,(a) there can be no doubt but that all kinds of crimes of a public nature, all disturbances of the peace, all oppressions and other misdemeanours whatsoever of a notoriously evil example, may be indicted at the suit of the king.
*[*219(d) IX. The other remaining offence, that of kidnapping, being the forcible abduction or stealing away of a man, woman, or child from their own country and sending them into another, was capital by the Jewish law:—“He that stealeth a man, and selleth him, or if he be found in his hand, he shall surely be put to death.”(b) So, likewise, in the civil law the offence of spiriting away and stealing men and children, which was called plagium and the offenders plagiarii, was punished with death.(c) This is unquestionably a very heinous crime, as it robs the king of his subjects, banishes a man from his country, and may in its consequences be productive of the most cruel and disagreeable hardships; and therefore the common law of England has punished it with fine, imprisonment, and pillory.15 And also the statute 11 & 12 W. III. c. 7, though principally intended against pirates, has a clause that extends to prevent the leaving of such persons abroad as are thus kidnapped or spirited away, by enacting that if any captain of a merchant-vessel shall (during his being abroad) force any person on shore or wilfully leave him behind, or refuse to bring home all such men as he carried out, if able and desirous to return, he shall suffer three months’ imprisonment.16 And thus much for offences that more immediately affect the persons of individuals.
[(a) ] See book iii. page 121.
[(b) ] Britt. l. 1, c. 25. 1 Hawk. P. C. 111.
[(c) ] 3 Inst. 118. Mes, si la pleynte soit faite de femme qu’avera tolle a home ses membres, en tiel case perdra le feme la une meyn par jugement, come le membre dount ele avera trespasse. Brit. c. 25.
[(d) ] Stiernh de jure Sueon. l. 3, t. 3.
[(e) ] See page 12.
[(f) ] 1 Hawk. P. C. 112.
[(g) ] Bract. fol. 144.
[(h) ] Sir Edward Coke (3 Inst. 62) has transcribed a record of Henry the Third’s time. (Claus. 13 Hen. III. m. 9,) by which a gentleman of Somersetshire and his wife appear to have been apprehended and committed to prison, being indicted for dealing thus with John the monk, who was caught in adultery with the wife.
[(i) ] 3 Inst. 62.
[(k) ] On this statute Mr. Coke, a gentleman of Suffolk and one Woodburn, a labourer, were indicted in 1722,—Coke for hiring and abetting Woodburn, and Woodburn for the actual fact of slitting the nose of Mr. Crispe, Coke’s brother-in-law. The case was somewhat singular. The murder of Crispe was intended, and he was left for dead, being terribly hacked and disfigured with a hedge-bill; but he recovered. Now, the bare intent to murder is no felony; but to disfigure with an intent to disfigure is made so by this statute,—on which they were therefore indicted. And Coke, who was a disgrace to the profession of the law, had the effrontery to rest his defence upon this point,—that the assault was not committed with an intent to disfigure, but with an intent to murder, and therefore not within the statute. But the court held that if a man attacks another to murder him with such an instrument as a hedge bill, which cannot but endanger the disfiguring him, and in such attack happens not to kill but only to disfigure him, he may be indicted on this statute; and it shall be left to the jury to determine whether it were not a design to murder by disfiguring, and consequently a malicious intent to disfigure as well as to murder. Accordingly the jury found them guilty of such previous intent to disfigure in order to effect the principal intent to murder, and they were both condemned and executed. State Trials, vi. 212.
[1 ] These statutes are now all repealed. “So much of the 5 Hen. IV. c. 5 as relates to cutting the tongues or putting out the eyes of any of the king’s liege people, and to any assault upon the servant of a knight of the shire in parliament.” by the 9 Geo. IV. c. 31; the 37 Hen. VIII. c. 6 wholly, by the 7 & 8 Geo. IV. c. 27; and the 22 & 23 Geo. II. c. 1 wholly, by the 9 Geo. IV. c. 31; and the old law with respect to mayhem is now merged in the last-mentioned statute, sects. 11 and 12 of which provide ample remedies for that offence. There are, however, two species of maiming not included in the 9 Geo. IV. c. 31, it having been previously found necessary to make them the subjects of distinct enactments,—namely, injuries done to the persons of individuals by means of wanton or furious driving, and by means of spring-guns and man-traps.
By the 1 Geo. IV. c. 4, it is enacted that if any person whatever shall be maimed or otherwise injured by reason of the wanton and furious driving or racing, or by the wilful misconduct of any coachman or other person having the charge of any stage-coach or public carriage, such wanton or furious driving or racing, or wilful misconduct, of such coachman or other person, shall be, and the same is thereby declared to be, a misdemeanour, and punishable as such by fine or imprisonment. Proviso, not to extend to hackney-coaches drawn by two horses only and not plying for hire as stage-coaches. This, it will be observed, applies only to cases where some injury short of death is inflicted. Where death ensues from the negligence or misconduct, of such persons, the offence amounts either to murder or manslaughter. See Rex vs. Walker, 1 C. & P. 320.
By the 7 & 8 Geo. IV. c. 18, s. 1, it is enacted that if any person shall set or place, or cause to be set or placed, any spring-gun, man-trap, or other engine calculated to destroy human life or inflict grievous bodily harm, with the intent that the same, or whereby the same, may destroy or inflict grievous bodily harm upon a trespasser, or other person coming in contact therewith, the person so setting or placing, or causing to be so set or placed, such gun, trap, or engine as aforesaid, shall be guilty of a misdemeanour.—Chitty.
[2 ] All the previous statutes were repealed, so far as they extended to offences relating to the person, by statute 1 Vict. c. 85, by s. 2 of which the administering poison, or stabbing, cutting, or wounding, or causing bodily injury to, any person dangerous to life, with intent to commit murder, is felony punishable with death; and the following crimes are felony punishable with transportation for life or fifteen years,—and now to penal servitude, or imprisonment for three years,—viz., the attempting to administer poison, &c. or shooting at any person, or drawing a trigger or attempting to discharge loaded arms at any person, or to drown, suffocate, or strangle, with intent to murder, though no bodily injury be effected, (s. 3;) the attempting by any such means to maim, disfigure, or disable any person, (s. 5;) the sending explosive substances, or throwing destructive matter, with intent to harm, maim, or disfigure any person, (s. 5;) and the trying to procure abortion by poison or otherwise. S. 6. And the malicious stabbing or wounding any person, without the intent to murder, is a misdemeanour. 14 & 15 Vict. c. 19. And now also, by stat 9 & 10 Vict. c. 25, any mayhem occasioned by maliciously causing gunpowder or other substance to explode, or the causing or delivering to, or causing to be taken by, any person any dangerous thing, or the casting at or applying to any person any corrosive fluid or dangerous substance with intent to maim, is a felony, and punishable with transportation for life, or for any term not exceeding three years, with or without hard labour and solitary confinement. Also the administering chloroform, laudanum, or other stupefying drug, with intent to enable the offender to commit a felony, is a felony itself, and punishable with transportation for life or not less than seven years, or imprisonment for three years, (14 & 15 Vict. c. 19, s. 3,) and now with penal servitude. 16 & 17 Vict. c. 99.—Stewart.
[3 ] These statutes are both wholly repealed, by the 9 Geo. IV. c. 31, by sect. 19 of which it is enacted that where any woman shall have any interest, whether legal or equitable, present or future, absolute, conditional, or contingent, in any real or personal estate, or shall be an heiress presumptive, or next of kin to any one having such interest,—if any person shall, from motives of lucre, take away or detain such woman against her will, with intent to marry or defile her, or to cause her to be married or defiled by any other person, every such offender, and every person counselling, aiding, or abetting such offender, shall be guilty of felony, and, being convicted thereof, shall be liable to be transported for life or for any term not less than seven years, or to be imprisoned, with or without hard labour, for any term not exceeding four years.—Chitty.
[(l) ] 1 Hawk. P. C. 110.
[(m) ] 1 Hal. P. C. 660. 1 Hawk. P. C. 109.
[(n) ] 1 Hal. P. C. 660.
[4 ] But if the forcible abduction is confined to one county, and the marriage be solemnized by consent in another, the defendant cannot be indicted in either, though had the force been continued into the county where the marriage took place, no subsequent consent would avail. Cro. Car. 488. Hob. 183. Hawk. b. ii. c. 25. s. 40. 1 Russ. 820, 821. 1 East, P. C. 453. Where the female is under no restraint at the time of marriage, those who are present, but who are ignorant of the previous circumstances, will not share in the guilt of the abduction. Cro. Car. 489, 493. As to accessories after the fact, see 1 East, P. C. 453. 3 Chitt. Crim. L. 818.—Chitty.
[(o) ] 1 Hawk. P. C. 110.
[(p) ] 1 Hal. P. C. 661.
[(q) ] Cro. Car. 488. 3 Keb. 193. State Trials, v. 455.
[5 ] It seems to be well agreed, and indeed to be beyond all doubt, that where a woman is taken away and married by force she is a competent witness against her husband on an indictment for that offence. See Phil. Ev. 3d ed. 70, and the authorities there cited. But the proposition that where she consents to the marriage after a forcible abduction her evidence is equally admissible, seems to admit of some doubt. In the last case of this kind (Wakefield’s) both the abduction and the marriage were in fact voluntary, the lady’s consent to both having been obtained by fraud; but it was held that the fraud in law amounted to force, and the lady was upon that ground, it is conceived, admitted as a witness against the husband. A doubt afterwards arose whether the marriage in that case was valid or not, which led to the bringing in a bill to annul it, though the prevailing opinion among the profession seemed to be that the marriage was ipso facto void, as a marriage procured by force: in which view of the case, the admission of the wife’s evidence would not be an authority upon the question one way or the other. One account of that trial states that Hullock, B., declared that, even assuming the marriage to be valid, he would admit the wife’s evidence, for there were cases in which the evidence of wives was admissible against their husbands, and he considered that to be one of them. And, upon the principle that a woman may give evidence against her husband in the case of a personal wrong done to herself, it does seem that the wife would be a competent witness in a prosecution for abduction, even though the marriage was valid.—Chitty.
[(r) ] Stra. 1162.
[6 ] This act of 4 & 5 P. and M. c. 8 is wholly repealed by the 9 Geo. IV. c. 31; sect. 20 of which enacts, that if any person shall unlawfully take, or cause to be taken, any unmarried girl, being under the age of sixteen years, out of the possession and against the will of her father or mother or any other person having the lawful care or charge of her, every such offender shall be guilty of a misdemeanour, and, being convicted thereof, shall be liable to suffer such punishment by fine or imprisonment, or by both, as the court shall award. This clause was framed for the purpose of meeting such a case as that of Wakefield.—Chitty.
[(s) ] See book i. page 437, &c.
[7 ] Such a marriage, if voluntary on the part of the female, that is, not procured by force or fraud, would not now be void,—it having been held, after much doubt entertained upon the point among the profession, (see Doe vs. Price, 1 M. & R. 683,) that the 4 Geo. IV. c. 76 legalizes marriages which would otherwise have been void, under the 26 Geo. II. c. 33, on account of the minority of the parties and the non-consent of parents. See Rex vs Birmingham, 2 M. & R., 8 B. & C. 29, and the judgment of lord Tenterden therein. The new act, however, provides (sect. 23) that if any valid marriage solemnized by license shall be procured by a party to such marriage to be solemnized between persons one or both of whom shall be under age, by means of false swearing to any matter to which such party is required personally to depose, all the property accruing from the marriage shall be forfeited, and shall be secured for the benefit of the innocent party or the issue of the marriage. The latter words clearly show the intention of the legislature not to render the marriage void; for the words “issue of the marriage” in an Act of Parliament must mean lawful issue, which they could not be if the marriage was void.—Chitty.
[(t) ] Deut. xxii. 25.
[(u) ]Cod. 9, tit. 13.
[(w) ] Bracton, l. 3, c. 28.
[(x) ] Stiernh. de jure Sueon. l. 3, c. 2.
[(y) ]LL. Gull. Cong. c. 19.
[(z) ] 1 Hal. P. C. 631.
[(a) ] Glanv. l. 14, c. 6. Bract. l. 3, c. 28.
[(b) ] Barrington, 142.
[(c) ] Glanv. l. 14, c. 6. Bract. l. 3, c. 28.
[(d) ] 1 Hal. P. C. 631.
[8 ] But now, by stat. 4 & 5 Vict. c. 56, s. 3, the punishment of death is repealed, and transportation for life is substituted for both the offences of rape and carnal knowledge of a girl under ten years of age, for which penal servitude may now be substituted.—Stewart.
[(e) ] Ibid.
[9 ] But an infant under fourteen may be guilty as an abettor if shown to possess a mischievous discretion. 1 Hale, 630.—Chitty.
[(f) ]C. d 9, 9, 22. Ff. 47, 2, 39.
[(g) ] 1 Hal. P. C. 629. 1 Hawk. P. C. 108.
[(h) ] Fol. 147.
[10 ] But the rule respecting the time that elapses before the prosecutrix complains will not apply where there is a good reason for the delay, as that she was under the control or influenced by fear of her ravisher. 1 East, P. C. 445. And so all other general rules, as they are deduced from circumstances, must yield when they appear to be unsafe guides to the discovery of truth. The state and appearance of the prosecutrix, marks of violence upon her person, and the torn and disordered state of her dress recently after the transaction, at the time of complaint, are material circumstances, which are always admissible in evidence. See 2 Stark. 241. If the prosecutrix be an infant of tender years, the whole of her account recently given seems to be admissible, for it is of the highest importance to ascertain the accuracy of her recollection, (East, P. C. 443. Stark. on Evidence, part iv. 1268;) but, in 2 Stark. Rep. 241, upon an indictment for an attempt to commit a rape upon an adult, Holroyd, J., held that the particulars of the complaint made by the prosecutrix recently after the injury were not admissible in evidence. In the case of the death of the prosecutrix, her depositions, taken before a magistrate, are admissible, though not authenticated by her signature. 2 Leach, 854, 996.
[11 ] When the child does not sufficiently understand the nature and obligation of an oath, the judge will put off the trial, for the child to be instructed in the mean time. Bac. Abr. Evid. a. Leach, 430, n.—Chitty.
[(i) ] 1 Hal. P. C. 634.
[(j) ] 1 Hal. P. C. 635.
[(k) ] See in Rot. Parl. (50 Edw. III. n. 58) a complaint that a Lombard did commit the sin “that was not to be named.” 12 Rep. 37.
[(l) ]Cod. 9, 9, 31.
[(m) ] Levit. xx. 13, 15.
[(n) ] Britt. c. 9.
[(o) ]L. 1, c. 37.
[(p) ] Stiernh. de jure Goth. l. 3, c. 2.
[(q) ] 3 Inst. 50.
[(r) ] See book iii. p. 120.
[(s) ] 1 Hawk. P. C. 65.
[12 ] The punishment of pillory is now taken away by the 56 Geo. III. c. 138. In cases of assaults of a very aggravated nature, the punishment of whipping has been inflicted in addition to that of imprisonment and finding sureties for good behaviour. 1 Burn, J. 24th ed. 231. 1 East, P. C. 406. The 3 Geo. IV. c. 114 inflicts a severer punishment on persons guilty of assaults therein particularly described. In cases where the offence more immediately affects the individual, the defendant is sometimes permitted by the court, even after conviction, to speak with the prosecutor before any judgment is pronounced, and a trivial punishment (generally a fine of a shilling) is inflicted, if the prosecutor declares himself satisfied. Post, 363, 364. And where, in a case of indictment for ill-treating a parish apprentice, a security for the fair expenses of the prosecution had been given by the defendant, after conviction, upon an understanding that the court would abate the period of his imprisonment, the security was held to be good, upon the ground that it was given with the sanction of the court, and to be considered as part of the punishment suffered by the defendant in expiation of his offence, in addition to the imprisonment inflicted on him. 11 East, 46.—Chitty.
[13 ] This act is repealed, so far as relates to laying violent hands on a clerk, by 9 Geo. IV. c. 31; by 23 of which, if any person shall arrest any clergyman upon any civil process while he shall be performing divine service, or shall, with the knowledge of such person, be going to perform the same, or returning from the performance thereof, every such offender shall be guilty of a misdemeanour, and, being convicted thereof, shall suffer such punishment, by fine or imprisonment or by both, as the court shall award. The 50 Edw. III. c. 5, and 1 Ric. II. c. 15, upon the same subject, are also repealed by the new act. The arrest, if not on a Sunday, would be good in law. Wats. c. 34.—Chitty.
[(t) ] 2 Inst. 492, 620.
[(u) ]Artic. Cler. Edw. II. c. 4, F. N. B. 53.
[(v) ] 2 Roll. Rep. 384.
[(w) ] See book iii. p. 127.
[(x) ] See page 116.
[(y) ] Stat. 31 Car. II. c. 2.
[14 ] Repealed by 7 & 8 Geo. IV. c. 27: but see 31 Car. II. c. 2, which prohibits the sending of any British subject to any foreign prison.—Chitty.
[(z) ] West. Symbol part 2, page 92.
[(a) ] 1 Hawk. P. C. 210.
[(d) ] Raym. 474. 2 Shew. 221. Skin. 47. Comb. 10.
[(b) ] Exod. xxi. 16.
[(c) ]Ff. 48, 15, 1.
[15 ] Where a child is stolen for the sake of its clothes, it is the same species of felony as if the clothes were stolen without the child. But it cannot be considered a felony where a child is stolen and not deprived of its clothes. This crime would in general be an aggravated species of false imprisonment; but, without referring it to that class of offences, stealing a child from its parents is an act so shocking and horrid that it would be considered the highest misdemeanour, punishable by fine and imprisonment, upon the same principle on which it was decided to be a misdemeanour to steal a dead body from a grave.—Christian.
Stealing children was, by 54 Geo. III. c. 101, punishable as in cases of grand larceny; but that statute is now repealed, by 9 Geo. IV. c. 31; by 21 of which, “if any person shall maliciously, either by force or fraud, lead or take away, or decoy or entice away, or detain, any child under the age of ten years, with intent to deprive the parent or parents, or any other person having the lawful care or charge of such child, of the possession of such child, or with intent to steal any article upon or about the person of such child, to whomsoever such article may belong; or if any person shall, with any such intent as aforesaid, receive or harbour any such child, knowing the same to have been, by force or fraud, led, taken, decoyed, enticed away, or detained, as herein before mentioned; every such offender, and every person counselling, aiding, or abetting such offender, shall be guilty of felony, and, being convicted thereof, shall be liable to be transported for the term of seven years, or to be imprisoned, with or without hard labour, for any term not exceeding two years, and, if a male, to be once, twice, or thrice publicly or privately whipped, (if the court shall so think fit,) in addition to such imprisonment. Provided always that no person who shall have claimed to be the father of an illegitimate child, or to have any right to the possession of such child, shall be liable to be prosecuted by virtue hereof on account of his getting possession of such child, or taking such child out of the possession of the mother or any other person having the lawful charge thereof.”—Chitty.
[16 ] By 9 Geo. IV. c. 31, 30, if any master of a merchant-vessel shall, during his being abroad, force any man on shore, or wilfully leave him behind in any of his majesty’s colonies or elsewhere, or shall refuse to bring home with him again all such of the men whom he carried out with him as are in a condition to return when he shall be ready to proceed on his homeward-bound voyage, every such master shall be guilty of a misdemeanour, and, being lawfully convicted thereof, shall be imprisoned for such term as the court shall award; and all such offences may be prosecuted by indictment or by information, at the suit of his majesty’s attorney general, in the court of King’s Bench, and may be alleged in the indictment or information to have been committed at Westminster, in the county of Middlesex: and the said court is hereby authorized to issue one or more commissions, if necessary, for the examination of witnesses abroad; and the depositions taken under the same shall be received in evidence on the trial of every such indictment or information. So much of the 11 & 12 W. III. c. 7, and of the 58 Geo. III. c. 38, as related to this subject, is repealed by the 9 Geo. IV. c. 31.—Chitty.