« EelmineJätka »
“ incur and suffer the pains and penalties, ordained and provided “by the statute of provision and præmunire made in the sixteenth “ year of the reign of Richard the Second.” It may be useful to notice some Irish statutes, relating to the Irish statutes
6 Anne, c. 16. subject of this Chapter. The 6 Anne, c. 16. makes persons, allur- 96.2. c. ii. 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 matriinony 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 forfeitures are to be (0) 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 in the four
re of it highly penal. After reciting that many of her Majesty's northern subjects, dwelling within the counties of Cumberland, Northumcounties. berland, 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 duction of
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 unto other 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.(b)
(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 (0) 1 East. P. C. c. 9. s. 4. p. 430.
CHAP. IX. $ 1.] Of Kidnapping.
583 The 31 Car. 2. c. 2. (the celebrated Habeas Corpus act) makes 31 Car. 2. c. 2. provision against any inhabitant of Great Britain being sent pri- s. 12: The
sending personer to foreign countries. The twelfth section enacts, that no son 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. soner into Scotland, Ireland, Jersey, Guernsey, Tangier, or into able by disabi.
made punishparts, garrisons, islands, or places. beyond the seas, within or lity to hold without the dominions of his Majesty. Such imprisonment is office, and by
the pains of then declared to be illegal; and an action for false imprisonment pr 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 case Masters of
merchant yeş“ any 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 of
them behind, “ 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 “ such master shall, being thereof legally convicted, suffer three 6 months' imprisonment, without bail or mainprize.”(@) 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.
Of Child Stealing.
54 G. 3.c. 101. THE statute 54 Geo. 3. c. 101. reciting that the practice of carrysubjects per- ing away young children, by forcible or fraudulent means, from sons taking away, &c. any meir parents, or any their parents, or other persons having the care and charge or cus
? child under 10 tody of them, commonly called child stealing, had of late much years old, or prevailed and increased, enacts, “ that if any person or persons receiving and harbouring
“ shall maliciously, either by force or fraud, lead, take or carry such child, to “ away, or decoy or entice away, any child under the age of ten the punish
“ years, with intent to deprive its parent or parents, or any other ment of persons convicted
person having the lawful care or charge of such child, of the of grand lar “ possession of such child, by concealing and detaining such child ceny.
s from such parent or parents, or other person or persons having - the lawful care or charge of it; or with intent to steal any article 5 of apparel or ornament, or other thing of value or use, upon or 6 about the person of such child, to whomsoever such article may “ belong; or shall receive and harbour with any such intent as “ aforesaid any such child, knowing the same to have been so by “ force or fraud led, taken or carried, or decoyed or enticed away “ as aforesaid; every such person or persons, and his, her, and “ their counsellors, procurers, aiders, and abettors, shall be “ deemed guilty of felony; and shall be subject and liable to all “ such pains, penalties, punishments, and forfeitures, as by the “ laws now in force may be inflicted upon, or are incurred by,
6 persons convicted of grand larceny." S. 2. The act The second section of the statute provides, “ that nothing in is not to ex “ this act shall extend, or be construed to extend, to any person fathers of ille
« who shall have claimed to be the father of an illegitimate child, gitimate child- “ or to have any right or title in law to the possession of such
“ child, on account of his getting possession of such child, or “ taking such child out of the possession of the mother thereof,
" or other person or persons having the lawful charge thereof." S.3. Act not It is also provided by the third section, that the act shall not to extend to extend to Scotland. Scotland,
tend to the
CHAPTER THE TENTH.
OF ATTEMPTS TO MURDER; OF MAYHEM, OR MAIMING; AND OF
DOING OR ATTEMPTING SOME GREAT BODILY HARM.
ATTEMPTS to commit murder appear to have been considered as Offences at felonies in the earlier ages of our law: but that doctrine did not common law. long prevail; and such attempts became, and still remain, at common law, punishable only as high misdemeanors.(a) Where an indictment is preferred for an assault with intent to murder, it seems that the intent as laid must be fully established, in order to support the indictment: thus, where a defendant was so charged in the first count of the indictment, Lord Kenyon, C. J., being of opinion, upon the facts given in evidence, that if death had ensued it would only have been manslaughter, directed the jury to acquit the defendant upon that count.(b)
Mayhem, or the maiming of persons, was probably at one time an offence at common law, of the degree of felony; as the judgment was membrum pro membro.(c) But this judgment afterwards went out of use; partly because the law of retaliation is at best an inadequate rule of punishment; and partly because, upon a repetition of the offence, the punishment could not be repeated.(d) The offence, therefore, appears to have been considered, in later times, as in the nature of an aggravated trespass; and the only judgment which now remains for it at common law is fine and imprisonment.(e) It is, however, a misdemeanor of the highest kind, and spoken of by Lord Coke as the greatest offence under felony.(f)
acquit this would onthe factsndictment, 1 defendablished, murder, in
(a) Staund. 17. East. P. C. c.8. (6) Rex v. Mitton, Adjourned Sits. 5. p. 411. Rex v. Bacon, 1 Lev. tings at Westminster, Oct. 1788. 1 146. 1 Sid. 230. where the defendant, East. P. C. c. 8. S. 5. p. 411. having been convicted for lying in (c) 3 Inst. 118. i Hawk. P. C. c. 55. wait to kill Sir Harbottle Grimstone, S. 3. 4 Blac. Com. 206. the Master of the Rolls, was sen. (d) 4 Blac. Com. 206. tenced by fine and imprisonment, the (e) Id. ibid. i Hawk. P. C. c. 55. s. 3. finding surety for his good behaviour í East. P.C. c. 7. s. 1. p. 393. But it for life, and acknowledging his of. is observed, that perhaps inayhem by fence at the bar of the Court of Chan- castration might have continued an cery. And see two precedents of in- offence of higher degree, as all our dictments at common law, for misde old writers held it to be felong. 4 meanors in attempting to murder by Blac. Com. 206. poison, 3 Chit. Crim. L. 796.
(f) Co. Lit. 127 a.