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committed to her care.(x) It has been said, that there must be a continued refusal of the parent or guardian ; and that if they once agree it is an assent within the statute, notwithstanding any subsequent dissent:(y) but this was not the point in judgment; and it has been observed, that it wants further confirmation.(2)
It seems that it is no legal excuse for this offence that the defendant, being related to the lady's father, and frequently invited to the house, made use of no other seduction than the common blandishments of a lover, to induce the lady secretly to elope and marry him, if it appear that the father intended to marry her to another person, and so that the taking was against his consent.(a)
Though the statute only gives authority to the star-chamber Of the proand justices of assize, to hear and determine the offences men- ceedings upon
this statute. tioned in it, yet it is settled that an information or indictment will lie thereon in the court of King's Bench; for, as there are no negative words, the jurisdiction of that court is not excluded.(6) It seems also that an information by the master of the crown office will lie for this offence, as at common law; as the statute does not create any new offence, but only aggravates the punishment.(c) It is agreed that an indictinent will lie by the rule of the common law, upon the general prohibitory clause contained in the second section of the statute, on the ground that where a thing is prohibited to be done by statute, and a penalty annexed to it by a separate substantive clause, the prosecutor is not bound to pursue the latter, but may indict on the prior general clause, as for a misdemeanor.(d) And the prohibition being general, the want of a corrupt motive is no answer to the criminal charge.(e) It seems that if an indictment or information upon this statute state, that the defendant “ being above the age of fourteen years, took one A., “then being a virgin unmarried, possessed of moveable goods, and “seised of lands of great value, out of the custody of her mother, “ &c.” the word, being is a sufficient averment of the facts which follow.(f)
The sixth section of the statute provides, that a female above 4 & 5 Ph. & M. the age of twelve, and under sixteen, consenting to a contract of c. 8. s. 6. The matrimony, contrary to the statute, shall forfeit all her lands to senting to an her next of kin, during the life of her husband : so that as these unlawful constolen marriages, under the age of sixteen, were usually upon mer
her lands cenary views, the statute, besides punishing the seducer, wisely during her removed the temptation.
husband's life. Many of the provisions of the Marriage Act, 4 Geo. 4. c. 76., 4 G. 4. c. 76. have been already stated.(h) The twenty-first section of the sta- s. 21. Persons
solemnizing (x) 1 East. P. C. c. 11. s. 6. p. 457. (c) i Hawk. P. C. c. 41. s. 8. But (y) Calthorpe v. Axtell, 3 Mod. 169. qu. how far this is an offence at com(z) 1 East. P. C. c. 11. s. 6. p. 457. mon law, and see ante, 569.
(a) Rex v. Twisleton and others, 1 (d) Moor's case, 2 Mod. 130. 1 East. Lev. 257. S.C. 1 Sid. 387. 2 Keb. 32. P. C. c. 11. s. 9. p. 459. See the prin1 Hawk. P. C. c. 41. s. 10.
ciple stated ante, 47. (6) i Hawk. P. C. c. 41. s. 7. The (e) i East. ibid. court of Star-chamber was dissolved (f) Rex v. Moor, 2 Lev. 179. S. P. by 16 Car. I. c. 10. s. 3. Jurisdiction Rex v. Boyal, 2 Burr. 832. 1 Hawk. is given to the justices of assize by 4 P.C. c. 41, s. 9. & 5 Ph. & M. c. 5. S. 5.
(h) Ante, 194, et sequ.
cence, or not
matrimony in tute provides for the punishment of such persons as shall unduly, any other
solemnize matrimony in improper places, without publication of place than a church, &c. banns, or a proper licence of marriage; or shall solemnize matrior at an im- mony falsely pretending to be in holy orders. It enacts, “ that if proper tiine, or without
any person shall after the first day of November, 1823, solemnize banns or li
matrimony in any other place than a church or such public chapel
“ wherein banns may be lawfully published, or at any other time being in holy “than between the hours of eight and twelve in the forenoon, unless orders, to be guilty of
“ by special licence from the Archbishop of Canterbury; or shall felony, and “solemnize matrimony without due publication of banns, unless transported
“ licence of marriage be first had and obtained from some person for fourteen years.
“ or persons having authority to grant the same; or if any person “ falsely pretending to be in holy orders, shall solemnize matri
mony according to the rites of the church of England, every
person knowingly and wilfully so offending, and being lawfully “ convicted thereof, shall be deemed and adjudged to be guilty of “ felony; and shall be transported for the space of fourteen years, “according to the laws in force for transportation of felons : pro“ vided that all prosecutions for such felony shall be commenced “ within the space of three years after the offence committed.” The act does not extend to the marriages of any of the royal family:(i) nor to any marriages amongst Quakers or Jews, where both the parties, to any such marriage, shall be Quakers or Jews.(a) And it extends only to that part of the united kingdom
called England.(k) 12 G. 3. c. 11. The statute 12 Geo. 3. c. 11. confirms the prerogative of the Marriages of the royal fa
crown to superintend and approve of the marriages of the royal mily not to family:(?) The first section enacts, “ that no descendant of the be bad with
body of King George the Second, male or female (other than the out the consent of the
“ issue of princesses who have married, or may hereafter marry, king, &c. “ into foreign families) shall be capable of contracting matrimony
“ without the previous consent of his majesty, his heirs or suc
cessors, signified under the great seal, and declared in council;
(which consent, to preserve the memory thereof, is hereby “ directed to be set out in the licence and register of marriage, and “to be entered in the books of the privy council) and that every “ marriage or matrimonial contract of any such descendant, with
out such consent first had and obtained, shall be null and void Except under “ to all intents and purposes whatsoever.” Provision is then made particular cir- for a marriage, without the royal consent, of any such descendcumstances.
ant, being above twenty-five years of age, after notice to the privy council, and the expiration of twelve months after such notice; in
case the two houses of parliament do not before that time expressly And persons
declare their disapprobation of the marriage.(m) The third secsolemnizing tion of the statute enacts, or assisting at
“ that every person who shall knowmarriages ingly or wilfully presume to solemnize, or to assist, or to be without the “present at the celebration of any marriage, with any such deconsent, where such
“scendant, or at his or her making any matrimonial contract, consent is pe
“ without such consent as aforesaid first had and obtained, except cessary, incur “ in the case above mentioned, shall, being duly convicted thereof, a præmunire. (i) S. 30.
provisions of this act, ante 194, et sequ. (9) S. 32.
(?) i East. P. C. c. 13. s. 7. p. 478. (k) S. 33. And see further as to the
(m) S. 2.
“incur and suffer the pains and penalties, ordained and provided
by the statute of provision and præmunire made in the sixteenth
may be useful to notice some Irish statutes, relating to the Irish statutes subject of this Chapter. The 6 Anne, c. 16. makes persons, allur- 9G. 2. c. 11. ing, &c. and marrying any female having substance, or being a heiress, &c. within the age of eighteen years, liable to imprisonment for three years, and incapable of taking any benefit from the estate, real or personal, of such female. It provides also for the management of the estate during the marriage, the allowance of the woman out of the income, in case she survives, and the maintenance of the children: and directs that, after the death of the woman, the estate shall go to such person as it would have done if the act had not been made. And, by the same statute, females persuading the son of any person, having lands of the yearly value of fifty pounds, or personal estate of the value of five hundred pounds, or persuading the son of any person deceased to contract matrimony without the consent of parents or guardians, if such matrimony be had before such son attain the age of twenty-one years, are disabled from demanding dower or jointure, or other provision, out of the real or personal estate of such son, made to or in trust for her by any deed, will, or other settlement. Accessories, procurers, &c. are to be imprisoned three years : and the clergyman celebrating the marriage is to be deprived of all his livings; to be incapable of any spiritual preferment; and transported in like manner as foreign regulars.(n)
The 9 Geo. 2. c. 11. enacts, that persons of full age marrying, or contracting to marry, persons under the age of twenty-one, without the consent of the father, guardian, or lord chancellor, shall forfeit £500, if the estate of the person married is of the value of £10,000; and shall forfeit £200 , if the estate of the person married is under £10,000: and shall suffer a year's imprisonment.(0) (n) 5 Ev. Col. Stat. 341.
913, 916. The for
be (o) Id. ibid. referring to 2 Gabbett, recovered by popular action.
CHAPTER THE NINTH.
OF KIDNAPPING, AND CHILD-STEALING.
Carrying away The stealing and carrying away, or secreting of any person, someor secreting
times called kidnapping, is an offence, at common law, punishany person. 43°Eliz. c. 13. able by fine and imprisonment. (a) The statute 43 Eliz. c. 13. as to offences relates to an offence of this nature, and makes a particular species of this nature of it highly penal. After reciting that many of her Majesty's in
subjects, dwelling within the counties of Cumberland, Northumberland, Westmoreland, and the bishopric of Durham, had been taken out of those counties, or to other places within the counties, as prisoners; and kept barbarously, and cruelly, until redeemed by great ransoms; it enacts, that those who shall carry any such subjects, against their wills, out of those counties, or to any other place within those counties, or detain, force, or imprison them, to ransom them, or make prey of their persons or goods, or who shall be privy aiding or assisting thereto, and shall be convicted, &c. shall be adjudged to be felons; and shall suffer
death without benefit of clergy. Forcible ab- The forcible abduction or stealing and carrying away of any persons, and person, by sending him from his own country into some other, or sending them to parts beyond the seas, whereby he is deprived of the friendly
assistance of the laws to redeem him from such his captivity, is countries.
properly called kidnapping, and is an offence of a very aggravated description. Its punishment at common law is, however, no more than fine and imprisonment; though, as has been remarked concerning it, the offence is of such primary magnitude that it might well have been substituted upon the roll of capital crimes, in the place of many others, which are there to be found.(6)
(a) 1 East. P. C. c. 9. s. 3. p. 429, of the punishment before the 56 G. 3. 430. Rex v. Grey, T. Raym. 473.
c. 138. Comb. 10. The pillory was also part (6) i East. P. C. c. 9. s. 4. p. 430.
s. 12. The
The 31 Car. 2. c. 2. (the celebrated Hubeas Corpus act) makes 31 Car. 2. c. 2. provision against any inhabitant of Great Britain being sent pri
sending personer to foreign countries. The twelfth section enacts, that no
sons prisoners subject of this realm, being an inhabitant or resiant of England, out of EngWales, or the town of Berwick upon Tweed, shall be sent pri- land. &c. sorer into Scotland, Ireland, Jersey, Guernsey, Tangier, or into able by disabiparts, garrisons, islands, or places. beyond the seas, within or lity to hold without the dominions of his Majesty. Such imprisonment is office, and by then declared to be illegal; and an action for false imprisonment
præmunire, is given to the party, with treble costs, and damages not less than &c. five hundred pounds. The section then proceeds thus :-“ And “the person or persons who shall knowingly frame, contrive, “write, seal, or countersign, any warrant for such commitment, “detainer, or transportation, or shall so commit, detain, imprison, “ or transport, any person or persons, contrary to this act, or be “any ways advising, aiding, or assisting, therein,” being lawfully convicted thereof, shall be disabled from thenceforth to bear any office of trust or profit within England, &c. or the dominions thereunto belonging, and shall incur the pains, &c. of the statute of præmunire, 16 R. 2., and shall be incapable of any pardon from the King of such forfeitures or disabilities. There are some exceptions in the act relating to the transportation of felons : and the sixteenth section provides, that offenders may be sent to be tried where their offences were committed, and where they ought to be tried. The seventeenth section enacts, that prosecutions for offences against the act must be within two years after the offence committed, if the party grieved be not then in prison; and if he be in prison, then within two years after his decease, or delivery out of prison, which shall first happen.
The 'statute 11 and 12 W. 3. c. 7. s. 18. relates to the forcing 11 & 12 W.3. men on shore, or refusing to bring them again to their own coun- c. 7. s. 18. try, by masters of merchant vessels. It enacts, " that in
merchant veşany master of a merchant ship or vessel shall, during his being sels forcing
abroad, force any man on shore, or wilfully leave him behind men on shore, " in any of his Majesty's plantations, or elsewhere, or shall refuse or leaving “ to bring home with him again all such of the men which he &c. liable to “ carried out with him as are in a condition to return, when he three months “ shall be ready to proceed in his homeward-bound voyage ; every
imprison“ such master shall, being thereof legally convicted, suffer three “ months' imprisonment, without bail or mainprize."(c) And by 58 G. 3. c. 38. s. 1. offences under this act may be prosecuted by indictment or information, at the suit of the attorney-general in B. R., and the offence shall and may be alleged to have been committed at Westminster; and the court is authorized to issue a commission or commissions to examine witnesses abroad; and the depositions shall be received in evidence on the trial of such indictment or information.
(c) This act was made perpetual by 6 G. 1. c. 19. s. 3.