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should not be adopted where there is any probability that the higher offence will be proved; as where, upon an indictment for an assault with intent to commit a rape, the prosecutrix proved a rape actually committed, a learned Judge directed an acquittal, on the ground that the misdemeanor was merged in the felony.(x) Assaults by taking indecent liberties with females, though without actual force or violence, will be mentioned in a subsequent Chapter. (1)

SECT. II.

of the unlawful Carnal Knowledge of Female Children.

The carnal In rape, as we have seen, the carnal knowledge must be against knowledge of the will of the party: but, by the fourth section of the statute a child under ten years old

18 Eliz, c. 7. carnal knowledge of any woman child under the made felony age of ten years is made felony without benefit of clergy; and without clerthis without any

reference to the consent or non-consent of the gy, by 18 Eliz. c. 7.

child, which must therefore be considered as immaterial. The statute enacts, “that if any person shall unlawfully and carnally “ know and abuse any woman child under the age of ten years, “ every such unlawful and carnal knowledge shall be felony; and “ the offender, thereof being duly convicted, shall suffer as a

“ felon without allowance of clergy." The carnal It appears at one time to have been thought, that the carnal knowledge of knowledge of a child above the age of ten and under twelve years a child above

was rape, though she consented; twelve years being the age of ten and under twelve years

consent in a female, and the statute Westm. 1. c. 13., which old made a enacts “ that none do ravish any maiden within age, neither by misdemeanor by stat. of

“ her own consent nor without," being admitted to refer, by the Westm. 1. c. words “ within age, to the age of twelve years.(y) It is, how13.

ever, now well established, that if the child be above ten years
old it is not a felonious rape, unless it be against her will and
consent.(s) But children above that age, and under twelve, are
still within the protection of this statute of Westm. I. c. 13., the
law with respect to the carnal knowledge of such children not
having been altered by either of the subsequent statutes of
Westm. 2. c. 34. or 18 Eliz, c.7. (a) The statute Westm. 1.
c. 13. makes the deflowering a child above ten years old and
under twelve, though with her own consent, a misdemeanor
punishable by two years' imprisonment, and fine at the King's
pleasure.(b)
part of the sentence is not consonant (1) Post. chap. xi. s. I.
to the practice of our present consti- (y) i Hale 631. 2 Inst. 180. 3 last.
tution in the apportionment of discre- 60.
tionary punishment; as tending to im. (-) Sum. 112. 4 Blac. Com. 212.
prisonment for life. East, P. C. ibid. 1 East. P. C. c. 10. s. 2. p. 436.

(x) Rex r. Harmwood, cor. Buller, (a) Ante, 556.
J., Winchester Spr. Ass. 1787, 1 East. (0) 4 Blac. Com. 212. 1 East. P. C.
P. C. c. 8. S. 5. p. 411, and c. 16. s. c. 10. s. 2. p. 436.
3. p. 440. Ante, 560.

It is said, that an indictment on the statute 18 Eliz, c. 7. for Indictment on deflowering a child under ten years of age, ought to conclude 18 Eliz. c. 7. " against the form of the statute,” because the crime, as well as the punishment, is created by that statute. (c) And that, on the same account, it is necessary for the indictment to pursue the words of the act, and charge that the defendant feloniously, unlawfully, and carnally, knew and abused the party, being under the age of ten years, without adding the word ravished.(d)

Upon prosecutions for this offence, it is an important con- Testimony of sideration how far the child, upon whom the injury has been the child. committed, is a competent witness. In former times, the competency appears to have been made to depend upon the age of the child ; and when the rule prevailed that no children could be admitted as witnesses under the age of nine years, and very few under ten, (e) the testimony of the injured child must have been for the most part excluded. A more reasonable rule has, however, been since adopted; and it appears now to be well established, that a child of any age, if capable of distinguishing between good and evil, may be examined upon oath : but that, whatever

may
be its
age,

it cannot be examined unless sworn. (S) By such capability of distinguishing between good and evil, must be understood a belief in God, or in a future state of rewards and punishments; from which the court may be satisfied that the witness entertains a proper sense of the danger and impiety of falsehood. (g)

It appears to have been allowed, that the fact of the child's having complained of the injury recently after it was received, is confirmatory evidence :(h) but where the child is not fit to be sworn, it is clear that any account which it may have given to others ought not to be received. (i) Thus, on an indictment for a rape on a child of five years of age, where the child was not examined, but an account of what she had told her mother about three weeks after the transaction was given in evidence by the mother; and the jury convicted the prisoner principally, as was supposed, on that evidence; the Judges, on a case reserved for their opinion, thought the evidence clearly inadmissible; and the prisoner was accordingly pardoned. (k)

In all cases of this kind, it is undoubtedly much to be wished that, in order to render the evidence of the child credible, 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.(1) But no general rule can be laid down on the subject; and as a prisoner may be legally

(c) | East. P. C. c. 10. s. 10. p. 4 Blac. Com. 214. Anon. Dy. 304 a. 448.

(g) White's case, i Leach 430, 431. (d) Id. ibid.

and the cases cited, Id. 431, note (a) (e) Rex v. Travers, 1 Str. 700. Rex and see post, Book on Evidence. v. Dunnel, 1 East. P. C. c. 10. s. 5. p. (h) Brazier's case, ante, note (f). 442. i Hale 30%. 2 Hale 278.

(i) Phil. on Evid. 15. (f) Brazier's case, Reading Spring (k) Tucker's case, 1808. Phil. on Ass. 1779. 1 East. P. C. c. 10. s. 5. Evid. 15. p. 443, 444. I Leach 199, S. C. Powell's (1) 4 Blac. Com. 214. case, I Leach 110. Bull. N. P. 293.

convicted on such evidence, alone and unsupported, the degree of
corroboration which the account given by the witness requires, is
a question exclusively for the jury, from all the circumstances of
the case, and especially from the manner in which the child has
given its evidence. That evidence may be such as to leave no
reasonable doubt of the prisoner's guilt, although it stands unsup-

ported by other witnesses. (m)
Postponement Where a criminal prosecution was coming on to be tried, and
of the trial,
where thechild

the learned Judge found that the principal witness was a female was not capa-infant, wholly incompetent to take an oath, he postponed the trial ble of giving till the following assizes; and ordered the child to be instructed in testimony

the mean time, by a clergyman, in the principles of her duty, and
the nature and obligation of an oath. (n) And at the next assizes

,
the prisoner was put upon his trial; and the infant, being found
by the court on examination to have a proper sense of the nature

of an oath, was sworn; and the prisoner was convicted upon her But this must testimony, and executed. (o) But in a late case where it appeared not be done in

that the material witness, though an adult, and of sufficient in-
order that an
adult may be- tellect, had no idea of a future state of rewards and punishments,
come capable. and the learned Judge had on that account stopped the case, and

discharged the Jury, in order that the witness might have an op-
portunity of being instructed upon that subject, before the next
assizes; the Judges were of opinion, that the discharge of the
jury was improper, and that an acquittal should have been di-
rected. (p)

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(m) Phil. on Evid. 16.

See note (a) to White's case, I Leach
(n) Anon. cor. Rooke, J. at Glou- 430.; and 2 Bac. Abr. 577 in the
cester. Mr. J. Rooke mentioned the potes.
case on a trial at the Old Bailey in (0) Id. ibid.
1795 ; and added, that upon a confer- (p) Rex v. Wade, East. T. 1825.
ence with the other Judges, on his re- Ry. & Mood. C. C. 86. An applica-
turn from the circuit, they unani- tion for a pardon was recommended.
mously approved of what he had done.

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CHAPTER THE SEVENTH.

OF SODOMY.

In treating of the offence of sodomy, peccatum illud horribile, inter Christianos non nominandum, it is not intended to depart from the reserved and concise mode of statement which has been adopted by other writers.

It appears from different authors, that in ancient times the Offence made punishment of this offence was death: (a) but it had ceased to be capital by 27 so highly penal, when the statute 27 H. 8. c. 6. again made it a H. 8. c. &. capital offence. That statute reciting that there was not sufficient and condign punishment appointed and limited by the due course of the laws of the realm, for the detestable and abominable vice of buggery, committed with mankind or beast, enacts, “ that the

same offence be from henceforth adjudged felony, and such order “ and form of process therein be used against the offenders as in

cases of felony at common law : and that the offenders being “ hereof convicted by verdict, confession, or outlawry, shall suffer “ such pains of death, and losses and penalties of their goods, “ chattels, &c. as felons be accustomed to do, according to the “ order of the common laws of this realm; and that no per

son, offending in any such offence, shall be admitted to his “ clergy.".(b)

The offence consists in a carnal knowledge committted against Definition of the order of nature by man with man; or in the same unnatural the offence. manner with woman; or by man or woman in any manner with

(a) But the books differ as to the by the general act of 1 Ed. 6. c. 12.; mode of punishment, According to but by 2 Ed. 6. c. 29. the offence was Britton, a sodomite was to be burnt, made felony without clergy, though Britt. lib. 6. c. 9. In Fleta it is said, without loss of laods or goods, or corpecorantes et sodomitæ in terrå vivi ruption of blood. But this act of 2 confodiantur. With this the Mirror Ed. 6. was repealed by the 1 M. c. 1. agrees: but adds, issint que me

and the 25 H. 8. c. 6. also stood re“ moire seont restraine, pur grand pealed till the fifth year of Elizabeth. abomination del fait;" thereby con- Then by the statute 5 Eliz. c. 17. the signing them, with just indignation, entire act of 25 H. 8.c.6. is revived and to shameful and eternal oblivion. re-enacted, so that the offence stands Mirr. c. 4. s. 14. About the time of at this day absolutely felony without Richard the First, the practice was to benefit of clergy. i Hale 669. And hang a man, and drown a woman, offenders standing mute, not directly guilty of this offence. 3 Inst. 38. answering, or challenging peremp

(6) This act was at first only tempo- torily, above twenty, are deprived of rary, but toade perpetual by 32 Hen. clergy, by the general enactment of 8. c. 3. It was afterwards repealed the 3 and 4 W. and M. c. 9. s. 2.

beast.(c) With respect to the carnal knowledge necessary to constitute this offence, as it is the same that is required in the case of rape, it will be sufficient to refer to the preceding Chapter. (d)

To constitute this offence, the act must be in that part where sodomy is usually committed. The act in a child's mouth does not constitute the offence. (o) An unnatural connection with an animal of the fowl kind is not sodomy; a fowl not coming under the term “ beast :” and it was agreed clearly not to be sodomy, when the fowl was so small that its private parts would

not admit those of a man, and were torn away in the attempt. (p) Of aiders, &c. Those who are present, aiding and abetting in this offence, are and acces

all principals, and deprived of the benefit of clergy: (e) but if the sories,

party on whom the offence is committed be within the age of discretion, namely, under fourteen, (S) it is not felony in hin, but only in the agent. (g) There may be accessories before and after in this offence, as the statute makes it felony generally: but

accessories are not excluded from clergy. (h) Indictment. The indictment must charge that the offender contrà natura

ordinem rem habuit veneream, et carnaliter cognovit. (i) But it is said, that this alone would not be sufficient; and that, as the statute describes the offence by the term “ buggery,” the indictment should also charge peccatumque illud sodomiticum Anglicè dictum buggery adtunc et ibidem nequiter, felonice, diabolicè, ac

contrà naturam, commisit, ac perpetravit. (K) Evidence. That which has been before stated with regard to the evi.

dence and manner of proof in cases of rape, ought especially to be observed upon a trial for this still more heinous offence

. When strictly and impartially proved, the offence well merits strict and impartial punishment : but it is from its nature so easily charged, and the negative so difficult to be proved

, that the accusation ought clearly to be made out. The evidence should be plain and satisfactory, in proportion as the crime is

detestable. (1) Attempts to

In cases where it is not probable that all the circumstances necommit felony, cessary to constitute this offence will be proved, it may be ad

visable only to prefer an indictment for an assault with intent to commit an unnatural crime. And it should be observed, that the mere soliciting another to the commission of this crime has been treated as an indictable offence. (m)

(c) 1 Hale 669. Sum. 117.3 Inst. (f) Ante, 2, 3. 58, 59. 1 Hawk. P. C. c. 4. 6 Bac. Ab. (8) i Hale 670. 3 Inst. 59. 1 East. Sodomy. 4 Blac. Com. 215. 1 Burn. P. C. c. 14. s. 2. Just. Buggery. 1 East. P. C. c. 14. (h) i Hale 670. Fost. 492, 423. 8. 1.; Wiseman's case, Fortesc. 91. As (i) i Hawk. P. C. c. 4. s. 2. 3 Inst. to the offence by man with woman 58, 59. if the case should occur, it may be (k) Fost. 424. referring to Co. Ent. proper to enquire whether the doc- 351. b. as a precedent settled by great trine in the text is sufficiently sup- advice. ported by the authorities cited.

(?) 4 Blac. Com. 215. Ante, 563. (d) Ante, 558, et sequ.

(m) See a precedent of an indict0) Rex v. Jacobs, East. T. 1817. ment for such solicitation, ? Chit Russ. & Ry. 331.

Crim. L. 50. And for the principles (P) Rex v. Mulreaty, Hil. T. 1812. and cases upon which such an inMS. Bayley, J.

dictinent may be supported, see ante, (e) i Hale 670. 3 Inst. 59. Fost. 44, 45. 422, 423.

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