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CHAPTER THE EIGHTH.
OF THE FORCIBLE ABDUCTION AND UNLAWFUL TAKING AWAY
OF FEMALES; AND OF CLANDESTINE MARRIAGES.
It appears to be the better opinion that if a man marry a woman Offences at ünder
age, without the consent of her father or guardian, it will common law. not be an indictable offence at common law. (a) But if children be taken from their parents or guardians, or others entrusted with the care of them, by any sinister means; either by violence, deceit, conspiracy, or any corrupt or improper practices, as by intoxication; for the purpose of marrying them; it appears that such criminal means will render the act an offence at common law, though the parties themselves may be consenting to the marriage. (b) And seduction may be attended with such circumstances of combination and conspiracy as to make it an indictable offence. A case is reported where Lord Grey and others were charged, by an information at common law, with conspiring and intending the ruin of the Lady Henrietta Berkeley, then a virgin unmarried within the age of eighteen years, one of the daughters of the Earl of Berkeley, (she being under the custody, &c. of her father) and soliciting her to desert her father, and to commit whoredom and adultery with Lord Grey, who was the husband of another daughter of the Earl of Berkeley, sister of the Lady Henrietta, and to live and cohabit with him: and further, the defendants were charged that, in prosecution of such conspiracy, they took away the lady Henrietta at night, from her father's house and custody, and against his will, and caused her to live and cohabit in divers secret places with Lord Grey: to the ruin of the lady, and to the evil example, &c. The defendants were found guilty; though there was no proof of any force; but on the contrary it appeared, that the lady, who was herself examined as a witness, was desirous of leaving her father's house, and concurred in all the measures taken for her departure and subsequent concealment. It was not shewn that any artifice was used to prevail on her to leave her father's house : but the case was put upon the ground that there was a solicitation and enticement of her to unlawful lust by Lord Grey, who was the principal person concerned, the others being
(a) 1 East. P. C. c. ll. s. 9. p. 458.
information for a misdemeanor, in (6) Id. ibid. p. 459. And see in 3 procuring a marriage with a winor, by Chit. Crim. L. 713. a precedent of an Talse allegations.
his servants, or persons acting by his command, and under his
controul. (c) Offences by The forcible abduction and unlawful taking away of women and
female children are made highly penal by the provisions of several
statutes, 3 Hen. 7. c. 2. The statute 3 Hen. 7. c. 2. relates to the forcible taking away forcible taking
of a woman of substance against her will. It recites that women, away of a wo
as well maidens as widows and wives, having substances, some in man of sub- goods moveable, and some in lands and tenements, and some being stance a felony. heirs apparent unto their ancestors, for the lucre of such sub
stances, had been oftentimes taken by misdoers, contrary 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 disparagement of the said women, and utter heaviness and discomfort of their friends, and to the evil ensample of all other : and then enacts, “that what person or persons from “ henceforth that taketh any woman so against her will, unlaw“ fully; 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 procura“ tors to the same, and receitors, knowing the said offence, in form “ aforesaid, be henceforth reputed and judged as principal felons. “ Provided always, that this act extend not to any person taking
any woman, only claiming her as his ward or bondwoman.' And offenders Clergy was taken away from persons found guilty of offences
against this statute, by the 39 Eliz. c. 9.: but the late statute, nishable by transportation
1 Geo. 4. c. 115., repeals this enactment of the 39 Eliz. c. 9., and or imprison- enacts, that persons duly convicted of such offences shall be liable ment. to be transported beyond the seas for life, or for such term not
less than seven years, as the court before which such person shall be convicted shall adjudge; or shall be liable, in case the said court shall think fit, to be imprisoned only, or imprisoned and kept to hard labour in the common gaol, penitentiary house, or house of correction, for any term not exceeding seven years.
It was made a question of considerable doubt whether persons “ receiving wittingly the woman so taken against her will, and “ knowing the same,”? were ousted of clergy by the statute of Elizabeth, when that statute was in existence. (d) But it was agreed that those who received the offender, knowingly, were only accessories after the fact, according to the rule of the common law. (f) With respect to those who are only privy to the marriage, but in no way parties or consenting to the forcible taking away, it has been holden that they are not within the statute. (8)
Where the woman has nothing, and is not heir apparent, the case is not within the statute. (x) Thus where a man, worth 5,0001. in lands and goods, had a son and a daughter, and the
are now pu
(c) Rex v. Lord Grey and others, 3 41. s. 9. 3 Inst. 61. St. P. C. 44. } St. Tri. 519. 1 East. P.C. c. 11. s. 10. East. P. C. c. 11. s. 2. p. 452, 453.
(g) Fulwood's case, Cro. Car. 489, (d) i Hale 661. | East. P. C. c. ll. 489. I Hawk. P. C. c. 41. s. 10. S. 2. p. 452, 453.
(2) 12 Co. 100. U i Hale 661. Hawk. P. C. c.
daughter was enticed from his house, forced into the country, and there married : a bill being exhibited against the husband for this conduct, it was referred to the Chief Justice and Hobart, whether this was within the statute, and so not examinable in the Star Chamber: and, on conference with all the Judges, they held that it was not within the statute ; because the daughter had no substance of her own, and was not heir apparent; and it was only to women having substance of their own, or being heirs apparent, that the statute applied. (y)
It is no sort of excuse that the woman was at first taken away Construction with her own consent, if she afterwards refused to continue with of the statute the offender, and was forced against her will; for, till the time 3 Hen. 7. c. 2. when the force was put upon her, she was in her own power; and she
may from that time as properly be said to be taken against her will, as if she had never given any consent.(1) Getting a woman inveigled out by confederates, and then detaining and taking her away, is a taking within the statute. Thus, where a confederate of the prisoner's inveigled a girl of fourteen, having a portion of 5,0001., to go with her and a maid servant in a coach into the Park, where the prisoner got into the coach, and the two women got out ; and the prisoner detained the girl while the coach took them to his lodgings in the Strand; and the next morning he prevailed upon her (having threatened to carry her beyond sea if she refused) to marry him, and (though he was apprehended on the same day) there was evidence that she was deflowered; the prisoner was convicted and executed. (z) The taking alone will not constitute the offence : it is necessary that the woman taken away be married or defiled by the misdoer, or by some others with his consent.(a) But if she were under force at the time of the taking, it is not at all material whether she were ultimately married or defiled with her own consent or not; for an offender shall not be considered as exempted from the provisions of the statute, by having prevailed over the weakness of a woman, whom he got into his power by such base means. (*) And a marriage will be sufficient to constitute the offence, though the woman was in such fear at the time that she knew not what she did. Sarah Cox, an orphan, having 1,3001., was forced from her house at Islington into Surrey, and there married. The indictment against the two men who carried her away, and one of whom married her, was in Surrey, and the taking was alleged there. She was examined as a witness; and swore that when she was married she was in such fear that she knew not what she she said or did. Several objections were made. It was urged, that the taking being in Middlesex, the indictment should not have been in Surrey, no force having been proved there: but the court said it was a continuing force into Surrey; and, therefore, a forcible caption there. Then it was said, that the marriage was null; because the woman did not know what she
(y) Bruton v. Morris, Hob. 182., and 12 Co. 100. see Cro. Car. 485.
(i) i Hale 660. Hawk. P. C. c.41. (h) I Hawk. P. C. c. 41. s. 7. Cro. S. 8. Fulwood's case, Cro. Car. 485, Car. 485.
493. Swendsen's case, 5 St. Tri. 450, (2) Rex v. Brown, 1 Ventr. 243. 464, 468. (a) And. 115. Cro. Car. 486, 489.
said or did: but the court held, that though this might avoid the marriage, yet it was a marriage de facto, and sufficient within the statute. Further it was urged, that an intent to marry or defile was not alleged in the indictment: but the court said it was not
necessary. (r) Of the county If, however, a woman be taken away forcibly in one county, and in which the
afterwards go voluntarily into another county, and be there maroffence shall be said to have ried or defiled, with her own consent, the fact is not indictable in been com
either county; on the ground that the offence was not complete in mitted,
either : but if, by her being carried into the second county, or in any other manner, there being a continuing force in that county, the offender may be indicted there; though the marriage or defile
ment ultimately took place with the woman's own consent. (7) Case of Lock
The doctrine, that there must be a continuance of the force into hart Gordon and Loudon
the county where the defilement takes place was recognized and acted
upon in a case of recent occurrence, and one by which a There must be great deal of public interest was excited. The prisoners, Lockhart a continuance of the force
Gordon, a clergyman, and Loudon Gordon, his brother, were ininto the coun- dicted upon this statute, for the forcible abduction of Rachael ty where the Antonina Lee, under the following circumstances. The prosecudefilement takes place.
trix, Mrs. Lee, a natural daughter of Lord Le De Spencer, and entitled by his Lordship’s will to a considerable fortune, married, in the year 1794, and when she was about the age of twenty, a Mr. M. A. Lee, from whom she shortly afterwards separated, and continued to live apart from him, in the receipt of an income of above 9001. per annum, secured to her separate use. In the month of December, 1803, when she was living in Bolton-Row, Piccadilly, the prisoner Loudon Gordon, under the care of whose mother she had been placed for some time when a girl, introduced himself to her, by means of her medical attendant, as an old acquaintance; and some short time afterwards, the other prisoner Lockhart Gor. don also called upon her; and both of them being recognized by her, they continued, but more especially Loudon Gordon, occasionally to visit at her house. Loudon Gordon called four or five times in the month of December, and several times in the following January, previous to the transaction in question. Mrs. Lee stated, that their conversations, on these visits, were chiefly upon books, as her habits were studious; but that upon Loudon Gordon taking leave after his first visit he saluted her; and that on his second visit she warned him against entertaining any attachment for her, which she thought a likely thing to happen, as he was a young man; and that, upon her giving this caution, he said he had an attachment, and that his happiness was in her hands. By way of changing the conversation, she then read to him an account of a dream, which she had had, and requested him to interpret it, which he afterwards did by sending to her an interpretation, which was clever and ingenious. The third time he called he proposed a tour into Wales, which she did not agree to, either then or at any time; but she admitted that she did not give such
(r) Rex v. Fulwood, Cro. Car. 482, (j) Pulwood's case. Cro. Car. 485, 484, 488, 493. The prisoners were 488. i Hale 660. I Hawk. P.C. c. 41. found guilty, and sentenced to be s. 9. 1 East. P. C. c. II. s.3. P. 453. hanged.
an absolute refusal as to prevent his mentioning the subject again, and that, in a letter which he wrote to her, about the 12th of January, (and which contained strong declarations of attachment) he alluded to the tour: but she expressly stated, that she did not know of any plan for going with him any where, nor ever consented to any such plan; though, when it was mentioned by him on the same day on which she received his letter, she said, “We “ will talk of it.” A letter from Lockhart Gordon was received by her, together with that from Loudon, in which he also mentioned the proposed tour as likely to conduce to her happiness; described himself as having a head to conceive, a heart to feel, and a hand to execute, whatever might be for her advantage; and declared that if his brother ever deceived her, he would blow his brains out. A short time before Sunday, the 15th of January, Mrs. Lee invited Loudon Gordon to dine with her on that day, and requested that he would bring his brother Lockhart with him; and they came accordingly. This was the time at which the offence was alleged to have been committed. According to Mrs. Lee's account of the material transactions at that time, it appeared that after dinner she said to Lockhart Gordon, “What do you think of the extraor
brother has proposed ?" To which he replied, “ If he loves you, and you love him, I think it will tend to your “ mutual happiness; you will gain two friends.” That she did not recollect any thing more being said upon the subject till Lockhart Gordon pulled out his watch, said it was near seven o'clock, and that the chaise would soon be there; and said further, “ You “ must go with Loudon to night.” She thought this a joke; as no mention had been previously made of leaving London, or of any chaise; and she knew of no preparations having been made for her leaving London. About this time Loudon Gordon came towards Mrs. Lee, with a ring, and attempted to put it on her finger; but she drew away her hand, and the ring was left upon the table. She then attempted to go up stairs, but Lockhart Gordon said she should not, and placed himself against the door; and either at that time, or soon afterwards, he produced a pistol: she, however, after having rung the bell violently, got out at the door, and went up stairs, where she said to her female servant, “ There is a plan to “ take me out of my house; they are armed with pistols ; say no “ more but watch.” She described herself as having felt quite panic-struck at that time. Soon afterwards the prisoners came up stairs ; and Lockhart Gordon said. “I am determined you shall
go:" this was not said in a threatening manner; but soon afterwards, upon her saying to him, “What right have you to force me “ out of my house?” He said, “I am desperate,” and looked as if he was so.
Mrs. Lee described herself as then getting into a very wretched and confused state of mind, not absolutely stupid, but unable to recollect what passed. But it appeared, from the evidence of her servants, that Loudon Gordon first came down stairs, and sent the footman to call a coach, who went accordingly; and that the only servants then in the house were two females : that Loudon returned up stairs, when a scuffle was heard almost immediately, and Mrs. Lee called out, “I am determined not to go out " of my own house;" to which Lockhart Gordon replied, " I am