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'. 2. In order to shew this, it must appear that the woman has substance either real or personal, or is an heir apparent ". 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 thereunto by flatteries after the taking, yet this is felony, if the first taking were against her will" and so vice versa, 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 [ 209 ] 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. 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 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) 11 Hawk. P. C. c.41. § 5. m 1 Hal. P. C. 660. 1 Hawk. P. C. c. 41. § 4. n 1 Hal. P. C. 660. 1 Hawk. P. C. c.41. § 7. P1 Hal. P. C. 661. 9 Cro. Car. 488. 3 Keb. 199. State Trials, V.455. ment with or without hard labour for any term not exceeding seven years, substituted. (5) It would be safer, perhaps, to put the competency of the woman as a witness against her husband on the principle now settled, that this is a personal injury committed by the husband against her, and that in all such cases the injured party is an admissible witness. Upon AN inferior degree of the same kind of offence, but not attended with force, is punished by the statute 4 & 5 Ph. & 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 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. 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 almost useless, by provisions of a very different kind, which make the mar- [210] riage totally void, in the statute 26 Geo. II. c. 33. (6) III. A THIRD offence, against the female part also of his majesty's subjects, but attended with greater aggravations than that of forcible marriage, is the crime of rape, raptus mulierum, or the carnal knowledge of a woman forcibly and See Vol. I. p.437, &c. r Stra. 1162. Upon the general principle that the complete crime must be proved in the county in which the trial takes place, it is settled that if a woman be forcibly taken in one county, and afterwards go voluntarily into another county, and be there married or defiled with her own consent, the fact is indictable in neither, for in neither is there both a forcible taking and subsequent marriage or defilement. But if the force continued upon her at all into the county in which she was married or defiled, the offence will be complete, and triable there. 1 East's P.C. c. xi. s.3. 1 Russell. C.L. 821., where there is a full report of the case of the Gordons, which turned on this point. (6) By the 4G. 4. c. 76. (the present marriage act), such a marriage would not be void; but means are pointed out by way of information in the courts of chancery or exchequer to secure the property under an order of those courts, for the benefit of the innocent party or the issue of the marriage; and all agreements or settlements entered into by the parties in relation to such marriage, which are contrary to such order, are made absolutely void. against her will. This, by the Jewish law', 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 lawu 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 per"petratum." 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 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 poenae, ab hujusmodi 'facinore se temperaverint, nulli mulieri, sive volenti, sive "nolenti, peccandi locus relinquetur; quia hoc ipsum velle mu“lierum, ab insidiis nequissimi hominis, qui meditatur rapinam, [ 211 ] "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 must be against the woman's will. 66 W RAPE was punished by the Saxon laws, particularly those of king Athelstan with death: which was also agreeable to the old Gothic or Scandinavian constitution. But this was t Deut. xxii. 25. " Cod. 9. tit.13. w Bracton, 1.3. c. 28. * Stiernh. de jure Sueon. 1.3 c. 2. 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 ; 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 ',) 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 has suffered and afterward should acquaint the high constable of the hundred, the coroners, and the sheriff with the outragea. This seems to correspond in some degree with the laws of Scotland and Arragon, which requires that complaint must be made within twenty-four hours: though afterwards by statute Westm. I. 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, 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. I. by the statute Westm. 1. c. 13. the punishment of rape was much mitigated: the offence itself of ravish- [ 212 ] ing 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 LL. Gull. Conqu. c.19. (7) z 1 Hal. P. C. 632. a Glan. 7.14. c.6. Bract. 1.3. c. 28. b Barrington, 142. Bract. 1.3. c. 28. (7) The expression in the original is simply forfait ad les membres, foris facit membra sua. Nothing is said of the eyes. Wilk. 222. make the offence of forcible rape felony by statute West. 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 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. 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 supplet aetatem, as has in some cases been shewn ; yet, as to this particular species of felony, the law supposes an imbecility of body as well as mind. THE civil law seems to suppose a prostitute or common harlot incapable of any injuries of this kind': not allowing [213] any 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: for, as Bracton well observes", "etsi mere"trix fuerit ante, tunc non fuit meretrix, cum nequitiae ejus "reclamando consentire noluit.” (8) d 1 Hal. P. C. 631. e Ibid. f Cod.,9. 9. 22. Ff. 47. 2. 29. 1 Hal. P. C. 629. 1 Hawk. P. C. c.41. § 7. h 1.3. c. 27. (8) According to Bracton, however, the old law made a difference in the punishment |