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“ desperate, Mrs. Lee.” The female servants went immediately up stairs, and found Lockhart pushing Mrs. Lee out of the drawing room, with his arm round her waist, and Loudon near them. Mrs. Lee was in a thin muslin dress, with
handkerchief about her head, as she was dressed for dinner, and without any hat or bonnet. One of the servants put her arms round Mrs. Lee's waist to drag her away; but Lockhart Gordon produced a pistol, and swore that he would shoot the servant, by which she was so much alarmed that she desisted. The other servant then took Mrs. Lee by the hand; but quitted it upon Lockhart Gordon's threatening also to shoot her, and presenting a pistol. Lockhart Gordon then laid hold of one of the servants; and, both of them being so much alarmed as to make no further resistance, Loudon Gordon put his arm round Mrs. Lee's waist, and took her down stairs, and out at the street door ; when Lockhart Gordon immediately followed. It appeared, by other witnesses, that a post chaise, which the prisoners had ordered in the course of the morning, was at that time waiting at the end of Bolton-Row; that Mrs. Lee was taken to it by Loudon Gordon; that Lockhart Gordon followed; and that it drove off immediately on the road to Uxbridge. Mrs. Lee's account was, that though she remembered but imperfectly what took place at the time she was taken away, she was certain that she went from the house against her will, but that no manual force was used to get her into the chaise. She described herself as in a state of partial stupefaction: and several of the witnesses spoke of her as being of a very nervous frame, easily agitated, and subject to depression of spirits to such an extent as to be occasionally in a state of great mental misery.
As soon as Mrs. Lee and the two prisoners had got into the chaise, it drove off at a smart pace towards Uxbridge, Mrs. Lee sitting in the middle between the prisoners; and it appeared that, after changing horses at Uxbridge and at Wycombe, the party arrived at Tetsworth, about twelve miles from Oxford, between one and two o'clock in the morning. Mrs. Lee stated, that she frequently remonstrated with the prisoners in the course of the journey; and particularly told Lockhart Gordon that it was “a “ most infernal measure, and a breach of hospitality:” and repeatedly asked him for a chaise to take her back to London; making the application principally to him, because he seemed to have taken the lead in the whole business. But it appeared, as well from her own admissions as from the evidence of the postboys, that she never called for assistance at the inns, turnpikegates, or other places; and one of the post-boys stated, that, at Wycombe, one of the prisoners asked her, whether she would stay there or go on to Tetsworth or Oxford, and that her answer was, 66 I don't care.'
Mrs. Lee also admitted, that a ring was put upon her finger in the course of the journey by Loudon Gordon; and that, during the journey, but whether before they got to Uxbridge or afterwards she could not tell, she took a steel necklace, with a camphire bag attached to it, from her neck, and threw it out of the window of the chaise, saying, “That was my charm against plea
sure; I have now no occasion for it.” She said, that she used the word “charm,” as alluding to the supposed medical property
of camphire in quieting the nerves, and calming the passions, particularly the passion which a person of one sex feels for a person of the other; and that she was in the habit of wearing it as a sedative: that at the time she used the expression she gave herself up, but that she afterwards expostulated. And she also admitted, that during the journey she made some inquiries concerning Loudon Gordon's health ; and might, perhaps, have inquired how long it was since he had been acquainted with a person of her own sex.
At Tetsworth the parties got out of the chaise, and supper and beds were ordered to be prepared. Mrs. Lee stated, that she eat a good supper, and that there was a good deal of cheerful conversation during the repast; the whole of which she did not recollect, but that part of it related, as she believed, to Egyptian hieroglyphics and architecture. A question was then put to her, whether the whole of what passed might not have induced Loudon Gordon to have believed that he might approach her bed; to which she answered, “ It might; I was in desperation.” She admitted, that she might have told Loudon Gordon to see that the sheets were well aired: but said that if she had had the perfect exercise of her judgment, and her mind had been free from force, she should have been more inclined to have ordered a chaise than to have gone to bed. After she had gone up stairs into the bed-room, the chambermaid asked her, when she should be in bed, and when the gentleman should come up; to which she replied, “In ten minutes.” Upon this statement of Mrs. Lee's, in her examination, the following question was put to her, “What induced you to send such a message ?” and it was objected to by the counsel for the prisoners, on the ground that it was not a question as to a fact, but to something existing in the mind of the witness. Lawrence, J. overruled the objection : but said, that whether the answer would be evidence or not must depend upon the nature of it; that if Mrs. Lee should answer, “ I thought my life in danger; for Lockhart “ Gordon told me, if I did not let Loudon Gordon come to bed to “ me, he would blow my brains out;' such answer would certainly be evidence, though the apprehensions of the witness, unsupported by words used by the prisoners, or facts, would not. The question was then put; and Mrs. Lee answered, “ I was under “ the impression that my life was in danger from Lockhart “ Gordon; and I was apprehensive of some serious scuffle at the “ inn, in which lives might be lost.” Mrs. Lee then stated, that shortly after the chambermaid left the room Loudon Gordon came to bed to her, and remained with her all the night; and that the intercourse took place between them, which usually takes place between husband and wife,
These were the material facts of the case, with the addition, that it was proved by the woman with whom the prisoners lodged in London, that, previous to the time when this transaction took place, Lockhart Gordon was pressed for money, and backward in his payments, and that Loudon Gordon had admitted to her that he was in distressed circumstances. The learned counsel for the prisoners was proceeding in his cross-examination of Mrs. Lee, to question her as to her religious principles; and she had just admitted, that she seldom went to any place of worship,
and was inclined to doubt the Christian religion, when Lawrence, J., after having enquired of the counsel for the prosecution, whether they had any further evidence to offer of force in the county of Oxford, and been told by them that they had not, said, that he was of opinion the case should not proceed any further. The learned judge then addressed himself to the jury, and told them, that, in order to constitute the offence with which the prisoners were charged, there must be a forcible taking, and a continuance of that force into the county where the defilement takes place, and where the indictment is preferred: that in the present case, though there appeared clearly to have been force used for the purpose of taking the prosecutrix from her house, yet it appeared also, that in the course of the journey she consented; as she did not ask for assistance at the inns, turnpike gates, &c. where she had opportunities; and that, as she was unable to fix times or places with any precision, this consent probably took place before the parties came into the county of Oxford; and that
they must therefore acquit the prisoners.(k) Necessary It has been resolved, that an indictment for this offence must statements in the indict
expressly set forth that the woman taken away had lands or goods, or was heir apparent; and that the taking was against her will; and that it was for lucre; and also that she was married or defiled; such statements being necessary to bring a case within the preamble of the statute, to which the enacting clause clearly refers, when it speaks of persons taking away a woman so against her will.”(i) But it is said not to be necessary to state in the indictment, that the taking was with an intention to marry or defile the party, because the words of the statute do not require such an intention, nor does the want of it in any way lessen the
injury.(m) Of the evi- There is no doubt but that the woman taken away and married dence of the
may be a witness against the offender, if the force were continuing woman when taken away,
upon her till the marriage; and that she may herself prove such and married. continuing force :(n) for, though the offender be her husband de
facto, he is no husband de jure, in case the marriage was actually against her will.(o) It seems, however, to have been questioned, how far the evidence of the inveigled woman can be allowed, in cases where the actual marriage is good by her consent having been obtained after her forcible abduction.(p) But other authorities appear to agree, that it should be admitted, even in that case; esteeming it absurd that the offender should thus take ad
(k) Rex v. Lockhart and Loudon (0) 1 Hale 660, 961. 4 Blac. Com. Gordon, cor. Lawrence, J., Oxford 209. Lent Ass. 1804.
(p) 1 Hale 661, where the author (1) I Hawk. P. C. c. 41. s. 4. 1 Hale observes upon Brown's case, (ante, 460. 4 Blac. Com. 2.
note(n)) that some of the reasons why (m) Rex v. Fulwood, Cro. Car. 488. the woman was sworn and gave eviAnle, 570, 571. It is said, however, in dence were, that there was no cobabiI Hale 660, that the words eâ intentione tation, and that there was concurring ad ipsam maritandam are usually add- evidence to prove the whole fact: but ed in indictments upon this statute that if she had freely, and without and that it is safest so to do.
constraint, lived with the person who (n) Fullwood's case, Cro. Car. 488, married her for any considerable time, Brown's case, 1 Ventr. 243. Swend- her examination in evidence might be sen's case, 5 St. Tri, 456.
vantage 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.(9) And where the marriage was against the will of the woman at the time, there does not seem to be any good ground upon which her competency can be objected to, though she may have given her subsequent assent. (7) It also appears to have been ruled upon debate, in a modern case, that a wife is a competent witness for, as well as against, her husband, on the trial of an indictment for this offence, although she has cohabited with him from the day of her marriage.(s)
The statute 4 and 5 Ph. and M. c. 8. makes provision for the Statute 4 and punishment of an offence of the same kind as that which we have 5 Ph. & M. been considering upon the statute of Hen. 7., but inferior in degree, and differing also in this, that the taking away of the woman need not be attended with force.
The second section of this statute enacts, “ that it shall not be 4 and 5 Ph. “ lawful to any person or persons to take or convey away, or
and M. c. 8.
s. 2 prohibits cause to be taken or conveyed away, any maid, or woman child the taking “ unmarried, being under the age of sixteen years, out of or froin away a maid " the possession, custody, or governance, and against the will of under sixteen 66 the father of such maid or woman child, or of such person or the custody
persons to whom the father of such maid or woman child, by of the father “his last will and testament, or by any other act in his lifetime,
or guardian. “hath or shall appoint, assign, bequeath, give, or grant the order, “ keeping, education, or governance of such maid or woman child, “ except such taking and conveying away as shall be had, made,
or done, by or for such person or persons, as without fraud or “ covin be, or then shall be, the master or mistress of such maid “or woman child, or the guardian in socage, or guardian in chivalry, of
or to such maid or woman child.” The third section of the same statute enacts, “ that if any per- 4 and 5 Ph.
son or persons above the age of fourteen years, shall unlawfully “ take or convey, or cause to be taken or conveyed, any maid or
son taking “ woman child unmarried, being within the age of sixteen years, away a maid “out of or from the possession, and against the will of, the father under 16 from “ or mother of such child, or out of or from the possession and of the friher
against the will of such person or persons as then shall happen or mother, or “to have, by any lawful ways or means, the order, keeping, edu- guardian, to “cation, or governance of any such maiden or woman child ; that for two years, “then every such person and persons so offending, being thereof or fined. “ lawfully attainted or convicted by the order and due course “ of the laws of this realm, (other than such of whom such “ taken away shall hold any lands or tenements by knight's service) shall have and suffer imprisonment of his or their bodies,
space of two whole years, without bail or mainprise, or “ else shall pay such fine for his or their said offence, as shall be
and M. c. 8.
(9) 4 Blac. Com. 209.
(8) Perry's case, Bristol, 1794. 1 Hawk. P. C. c. 41, s. 13.; and in 1 East. P. C. c. 11. s. 5. p. 455. the learned author
“ I conceive it to be now VOL, I.
“ settled, that in all cases of personal
against the other.” And see posta
“ assessed by the council of the queen's highness, her heirs or successors,
in the star chamber at Westminster.” 4 and 5 Ph.
The fourth section further enacts, “ that if any person or perand M. c. 8.
sons shall so take away, or cause to be taken away, as is afores. 4. any person so taking
said, and deflower any such maid or woman child as is aforesaid, away and des
or shall against the will, or unknowing of or to the father of any flowering any“ such maid or woman child, if the father be in life, or against the such maid, or against the
will, or unknowing of the mother of any such maid or woman will or know- “ child (having the custody or governance of such child, if the ledge of the
“ father be dead) by secret letters, messages, or otherwise confather, &c.
“ tract matrimony with any such maiden or woman child, except contracting matrimony “ such contracts of matrimony as shall be made by the consent of with any such “ such person or persons, as by the title of wardship shall then maid, to be imprisoned
“ have, or be entitled to have, the marriage of such maid or woman for five years, “ child; that then every such person or persons so offending, or pay a fine.
being thereof lawfully convicted as is aforesaid, shall suffer im
prisonment of his or their bodies, by the space of five years, “ without bail or mainprise, or else shall pay such fine for his or " their said offence, as shall be assessed by the said council in the " said star chamber; the one moiety of all which forfeitures and “ fines shall be to the king and queen's majesties, her heirs and
“ successors, the other moiety to the parties grieved." Points upon
It has been decided, that the taking away a natural daughter, the construc
under sixteen years of age, from the care and custody of her putation of this statute.
tive father, is an offence within this statute (t) It has also been holden that a mother retains her authority, notwithstanding her marriage to a second husband; and that the assent of the second husband is not material.(u) In the last case it was also ruled, that the fourth section of the statute extends only to the custody of the father, or to that of the mother where the father has not disposed of the custody of the child to others. (v) In a case where a widow, fearing that her daughter, who was a rich heiress, might be seduced into an improvident marriage, placed her under the care of a female friend, who sent for her son from abroad, and married him openly in the church, and during canonical hours, to the heiress, before she had attained the age of sixteen, and without the consent of her mother, who was her guardian ; it was holden that in order to bring the offence within the statute, it must appear that some artifice was used; that the elopement was secret; and that the marriage was to the disparagement of the family.(w) But upon this case it has been remarked, that no stress appears to have been laid upon the circumstance of the mother having placed the child under the care of the friend, by whose procurance the marriage was effected; and that it deserves good consideration before it is decided, that an offender, acting in collusion with one who has the temporary custody of another's child, for a special purpose, and knowing that the parent or guardian did not consent, is not within the statute; for that then every schoolmistress might dispose, in the same manner, of the children
(1) Rex v. Cornforth, 2 Str. 1162.
(u) Ratcliffe's case, 3 Co. 39.
(w) Hicks v. Gore, 3 Mod. 84. I Hawk, P. C. c. 41. s. 11.