9 G. 4. c. 31. 8. 43.

Administering poison or

using any

means to procure the miscarriage of a woman quick with the child. The like as to a woman not quick with child.

9 G. 4. c. 31. s. 18.

What shall be deemed suffi

cient proof of carnal knowledge in rape, &c.

The carnal knowledge of a child under

ten years old made felony without cler

་

553, after line 8, dele the next paragraph, beginning" The 43 Geo. 3. c. 58."
and insert "That statute is repealed by 9 Geo. 4. c. 31. But
this latter statute contains certain provisions upon the same sub-
ject.
"The thirteenth section enacts, that if any person, with intent to
procure the miscarriage of any woman then being quick with
child, unlawfully and maliciously shall administer to her, or
cause to be taken by her, any poison or other noxious thing,
or shall use any instrument or other means whatever, with the
like intent, every such offender, and every person counselling,
aiding, or abetting such offender, shall be guilty of felony, and
being convicted thereof, shall suffer death as a felon; and if any
person, with intent to procure the miscarriage of any woman
not being, or not being proved to be, then quick with child, un-
lawfully and maliciously shall administer to her, or cause to be
taken by her, any medicine or other thing, or shall use any
instrument or other means whatever, with the like intent, every
such offender, and every person counselling, aiding, or abetting
such offender shall be guilty of felony, and being convicted
thereof, shall be liable, at the discretion of the Court, to be
transported beyond the seas for any term not exceeding fourteen
years, nor less than seven years, or to be imprisoned, with or
without hard labour, in the common gaol or house of correc-
tion, for any term not exceeding three years, and if a male, to
be once, twice, or thrice publicly or privately whipped (if the
Court shall so think fit), in addition to such imprisonment.''
553, line 9 from the bottom, dele" on this section of the statute," and insert
upon the repealed statute 43 Geo. 3. c. 58., which like the
present enactment, made a distinction in the punishment of the
offence, where the woman was quick with child, it appeared
that"

554, dele the

66

whole of the paragraph, beginning with the words "The second section of the statute recites."

line 16 from the bottom, dele the words "this section of the statute," and add the same repealed statute."

556, in the margin opposite line 4, erase "by 18 Eliz. c. 7. s. 1."

line 3 from the bottom, after the word "clergy "insert" But these statutes are repealed by the late act 9 Geo. 4. c. 31. s. 16., which enacts upon this subject, that every person convicted of the crime of rape shall suffer death as a felon.'”

557, line 7, dele the words "have their clergy,(e)" and insert" are not subject to capital punishment."

line 14 from the bottom, at the end of the paragraph, add "And though that statute is repealed, the late act 9 Geo. 4. c. 31. s. 19, 20. makes certain provisions against the forcible or unlawful abduction of females, which will be mentioned in a subsequent Chapter."

558, line 7, after the words " very different opinions have been holden, (p)" dele the remainder of the page, and also pages 559, 560, and 561, to the end of line 18, and insert "But the recent statute 9 Geo. 4. c. 31. s. 18., reciting, that upon trials for the crimes of buggery and rape, and of carnally abusing girls under the respective ages thereinbefore mentioned, offenders frequently es caped by reason of the difficulty of the proof which has been required of the completion of those several crimes, for remedy thereof, enacts, that it shall not be necessary in any of those cases to prove the actual emission of seed in order to constitute a carnal knowledge, but that the carnal knowledge shall be deemed complete upon proof of penetration only.'

564, sect, 2, dele from the beginning of the section to the bottom of the page and insert" In rape as we have seen the carnal knowledge must be against the will of the party: but by the fourth section of the statute 18 Eliz. c. 7. now repealed carnal knowledge of any woman child, under the age of ten years was made felony without benefit of clergy, and this without any reference to the con

gy, by 18 Eliz. c. 7. now repealed.

The carnal

sent or non-consent of the child, which was therefore considered as immaterial. The statute enacted' that if any person should unlawfully and carnally know and abnse any woman child under the age of ten years, every such unlawful and carnal knowledge should be felony; and the offender, thereof being duly convicted, should suffer as a felon without allowance of clergy. It appears at one time to have been thought, that the carnal knowledge of a child above the age of ten and under twelve years was knowledge of rape, though she consented; twelve years being the age of con- a child above sent in a female, and the statute Westm. I. c. 13., which enacted, ten and under ⚫ that none do ravish any maiden within age, neither by her own twelve years consent nor without," being admitted to refer, by the words old made a "within age," to the age of twelve years. (n) It was, however, misdemeanor afterwards well established, that if the child was above ten years Westminster, old it was not a felonious rape, unless it was against her will and consent. (r) But children above that age, and under twelve were still within the protection of the stat. 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. (s) The statute Westm. I. c. 13. made the deflowering a child above ten years old and under twelve, though with her own consent, a misdemeanor punishaable by two year's imprisonment and fine at the king's pleasure." (t)

by stat. of

I. c. 13. now

repealed.

These statutes having been repealed by 9 G. 4. c. 31. the 17th sec- 9 G. 4. c. 31.
tion of that act substitutes the following provisions and enacts s. 17. Carnal
that if any person shall unlawfully and carnally know and knowledge of
abuse any girl under the age of ten years, every such offender a girl under
shall be guilty of felony, and being convicted thereof, shall ten the like of
suffer death as a felon; and if any person shall unlawfully a girl above
and carnally know and abuse any girl, being above the age of ten and below
ten years and under the age of twelve years, every such offender twelve.
shall be guilty of a misdemeanor, and being convicted thereof,
shall be liable to be imprisoned with or without hard labour, in
the common gaol or house of correction for such term as the
court shall award."

365, line 8 at the end add "These observations will apply to the present enact

ment."

567, line 7 and also in the margin insert" 25 H. 8." instead of" 27 H. 8."
567, line 4 from the bottom after " clergy (b)" add "The statute 9 G. 4. c.
31, s. 15. repeal this act but enacts that every person convicted
of the abominable crime of buggery, committed either with
mankind or with any animal, shall suffer death as a felon."

note (b) line 13 instead of

66

is revived', read

66

was revived" and lines 14, 15, instead of "stands at this day absolutely" read " after the passing of that statute was" and at the end of the note add "But the 5 Eliz c. 17. is now repealed by 9 G. 4. c. 31. 570, line 3, dele the whole of the paragraph beginning" The forcible abduction and unlawful taking," and insert "The forcible abduction of a woman from motives of lucre is an offence of the degree of felony by 9 G. 4. c. 31. s. 19. which repeals several former statutes upon this snbject. It enacts that where any woman shall have any interest, whether legal or equitable, present or future, absolute, conditional, or contingent, in any real or personal estate, or shall be an heiress presumptive or next of kin to any one having such interest, if any person shall from motives of lucre, take away or detain such woman against her will, with intent to marry or defile her, or to cause her to be married or defiled by any other person, every such offender, and every person counselling, aiding, or abetting, such offender, shall be guilty of felony, and being convicted thereof, shall be liable

(g) 1 Hale 631. 2 Inst. 180. 3 Inst. 60. (r) Sum. 112. 4 Blac. Com. 212. 1 East P. C. c. 10. s. 2. p. 436.

(s) Ante 556.

(t) 4 Blac. Com. 212. 1 East. P. C. c. 10. s. 9. p. 436

Forcible abduction, of a woman on account of her fortune with intent to marry her, &c.

to be transported beyond the seas for life, or for any term not less than seven years, or to be imprisoned, with or without hard labour, in the common gaol or house of correction, for any term not exceeding four years."

570, line 6, instead of "The statute 3 Hen. 7." insert "The repealed statute

3 H. 7."

in the margin opposite line 6, erase "makes the forcible taking away of substance a felony."

line 26, dele the paragraph, beginning

66

Clergy was taken away," and insert "Clergy was taken away from persons found guilty of offences against this statute by the 39 Eliz. c. 9., but a later statute I Geo. 4. c. 115. repealed this enactment of 39 Eliz. c. 9., and made the offence punishable by transportation or imprisonment. This statute 1 G. 4. c. 115. is repealed by 9 G. 4. c. 31. Some of the points decided upon the repealed statutes may still be worthy of observation.'

571, line 26, dele, the sentence beginning with the words "The taking alone" and also the following sentence add the words "And a marriage will be sufficient," and insert "The taking alone did not constitute the offence under the repealed statute and it was necessary that the woman taken away should have been married or defiled by the misdoer, or by some others with his consent. But the new enactment makes the taking away or detaining a woman with intent to marry or defile her a complete offence. And under the repealed statute it was decided that if the woman were under force at the time of taking, it was not at all material whether she were ultimately married or defiled with her her own consent or not; on the ground that an offender should 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 it was also decided that a marriage will be sufficient.".

Of the county 572, dele the paragraph beginning "If however a woman" to the bottom of

in which the

offence shall

be said to

have been committed.

Necessary statement in the indictment.

the page, and also pages 573, 574, 575, 576, and 577, to the end of line 16, and insert “ Upon the same repealed statute where a woman was taken away forcibly in one county, and afterwards went voluntarily into another county, and was there married or defiled, with her own consent, it was holden that the fact was not indictable in either county; on the ground that the offence was not complete in either: but that if, by her being carried into the second county, or in any other manner, there was a continuing force in that county, the offender might be indicted there; though the marriage or defilement ultimately took place with the woman's own consent. (j) The enactment of the late statute 7 G. 4. c. 64. s. 12. would have applied to this objection.

"It was resolved, that an indictment for this offence upon the repealed statute ought expressly to 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 statement being necessary to bring a case within the preamble of that statute, to which the enacting clause clearly referred in speaking of persons taking away a woman" so against her will "(7) But it was said not to have been necessary to state in the indictment, the taking was with an intention to marry or defile the party, because the words of the statute did not require such an intention, nor did the want of it any way lessen the injury. (m) In an indictment where the

(j) Talwood's case Cro. Car. 485, 488. 1 Hale 660. 1 Hawk. P. C. c. 41. s. 9. 1 East. P. C. c. 11. s. 3. p. 455. Lockhart and Loudon Gordon, Lawrence J. Oxford Lent ass. 1804.

Rex v.
Cor.

(2) 1 Hawk. P. C. c. 41. s. 4. 1 Hale 460. 4 Blac. Com. 2. 12. Co. 21, 100.

(m) Rex v. Fulwood, Cro. Car. 488. ante 570.571. It is said, however in 1 Hale 660. that the words ed intentione ad

recent enactment of 9 G. 4. c. 31. the allegation as to the intent
will be necessary.

it appears to have been considered as clear that a woman taken
away and married might be a witness against the offeuder if the
force were continuing upon her till the marriage; and that she
might herself prove such continuing force: (n) for though the
offender was her husband de facto, he was no husband de jure,
in case the marriage was actually against her will. (0) It seems
however, to have been questioned, how far the evidence of the
inveigled woman would be allowed, in cases where the actual
marriage was good by her consent having been obtained after
forcible abduction. (p) But other authorities appear to agree,
that it should be admitted, even in that case; esteeming it ab-
surd that the offender should thus take advantage of his own
wrong, and that the very act of marriage, which was a princi-
pal 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. (q) 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 could have been ob-
jected to, though she might have given her subsequent assent. (r)
It also appears to have been ruled upon debate, in a modern
case, that a wife was a competent witness for, as well as against
her husband; on the trial of an indictment for this offence, al-
though she had cohabited with him from the day of her mar-
riage. (s)

Of the evidence of the woman when taken away

and married.

“The unlawful abduction of a girl under the age of sixteen from 9 G. 4. c. 31.
her parents, or persons having the charge of her, is an offence of s. 20.
the degree of misdemeanor by 9 Geo. 4. c. 31. s. 20. which Unlawful ab-
enacts, that if any person shall unlawfully take, or cause to be duction of a
girl from her
taken, any unmarried girl, being under the age of sixteen years,
parents or
out of the possession, and against the will of her father or mo-
guardians.
ther, or of any other person having the lawful care or charge of
her, every such offender shall be guilty of a misdemeanor, and,
being convicted thereof, shall be liable to suffer such punish-
ment, by fine or imprisonment, or by both, as the Court shall
award.'

Ph. & M. c. 8.

"The provisions of the repealed statute, 4 & 5 Ph. & M. c. 8. and Repealed stathe construction upon some parts of it, may still be worthy of tate of 4 & 5 observation." 579, dele the whole of the paragraph beginning with the words, "Though the statute only gives authority to the star chamber," and also the whole of the next paragraph, to the word "temptation.”

583, line 16 from the bottom, dele" It enacts that in case any master of a

merchant ship," and to the end of the page, and insert, "But it 9 G. 4. c. 31.
is repealed by the recent statute, 9 Geo. 4. c. 31. and s. 30. of s. 30.
that statute enacts, if any master of a merchant vessel shall, Punishment
during his being abroad, force any man on shore, or wilfully for the master
leave him behind in any of his Majesty's colonies, or elsewhere, of a merchant
vessel forcing
or shall refuse to bring home with him again all such of the men

ipsom maritandam were usually added in indictments upon this statute and that it was safest so to do.

(a) Fulwood's case Cro. Car. 488. Brown's case 1 Ventr. 243. Swendsen's case, 5 St. Tri. 456.

(1 Hale fi60, 961, 4 Blac. Com. 209. (p) 1 Hale 161, where the author observes, upon Brown's case (ante n. (n)) that some of the reasons why the woman was sworn and gave evidence were, that there was no cohabitation, and that there was concuring evidence to prove the whole fact: but that if she had freely and without constraint, lived with the person

who married her for any considerable
time, her examination in evidence might
have been more questionable.

(g) 4 Blac. Com: 209.

(r) 1 East, P. C. c. 11. s. 5. p. 454.
(s) 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 says
"I conceive it to be now settled, that in
"all cases of personal injuries committed
"by the husband or wife against each
"other the injured party is an admissible
"witness against the other." And see
post, Book on evidence.

his seaman on shore, or refusing to bring him home.

Mode of trial, &c.

9 G. 4. c. 31. Child stealing

Not to extend to fathers taking their illegitimate children.

9 G. 4. c. 31. s. 11.

Attempts to murder, when evidenced by

whom he carried out with him, as are in a condition to return when he shall be ready to proceed on his homeward bound voyage, every such master shall be guilty of a misdemeanor, and being lawfully convicted thereof, shall be imprisoned for such term as the Court shall award; and all such offences may be prosecuted by indictment, or by information at the suit of his Majesty's Attorney-General in the Court of King's Bench, and may be alleged in the indictment or information to have been committed at Westminster, in the county of Middlesex; and the said Court is hereby authorized to issue one or more commissions, if necessary, for the examination of witnesses abroad; and the depositions taken under the same shall be received in evidence on the trial of every such indictment or information." 588, in the margin, even with line 18, erase “11 & 12 W. 3. c. 7. s. 18." and insert "9 Geo. 4. c. 31. s. 30." and at the end of the marginal note erase, "liable to three months imprisonment," and insert "guilty of a misdemeanor."

584, dele the whole of the section, and insert "The statute 54 Geo. 3. c. 101. is repealed by the 9 Geo. 4. c. 31. the twenty-first section of which enacts, "that if any person shall maliciously, either by force or fraud, lead or take away, or decoy or entice away, or detain, any child under the age of ten years, with intent to deprive the parent or parents, or any other person having the lawful care or charge of such child, of the possession of such child, or with intent to steal any article upon or about the person of such child, to whomsoever such article may belong; or if any person shall, with any such intent as aforesaid, receive or harbour any such child, knowing the same to have been, by force or fraud, led, taken, decoyed, enticed away, or detained as herein before mentioned; every such offender, and every person counselling, aiding, or abetting such offender, shall be guilty of felony, and being convicted thereof, shall be liable to be transported beyond the seas for the term of seven years, or to be imprisoned, with or without hard labour, in the common gaol or house of correction, for any term not exceeding two years, and if a male, to be once, twice, or thrice publicly or privately whipped, (if the Court shall so think fit,) in addition to such imprisonment: provided always, that no person who shall have claimed to be the father of an illegitimate child, or to have any right to the possession of such child, shall be liable to be prosecuted by virtue hereof, on account of his getting possession of such child, or taking such child out of the possession of the mother, or any other person having the lawful charge thereof.'"

586, line 7 from the bottom, dele “have been made," to the end of the page, and also the following pages, 587, 588, 589, 590, 591, 592, 593, and the nine lines at the top of page 594, and insert, “were made highly penal by the enactments of several statutes now repealed. The statute 9 Geo. 1. c. 22. commonly called the Black Act, and which made the maliciously shooting at any person a capital offence, and the 26 Geo. 2. c. 19. s. 1. by which the beating or wounding persons shipwrecked with intent to kill them, &c. or putting out false lights to bring a ship into danger, were repealed by the statute 7 & 8 Geo. 4. c. 27. The statute 5 H. 4. c. 5. relating to cutting tongues and putting out eyes; the 22 & 23 Car, 2. č. 1. called the Coventry Act, by which malicious maiming was made a capital offence; the 9 Ann. c. 16. which made it capital to attempt to kill, assault, wound, &c. a privy counsellor, and also the 43 Geo. 3. c. 58. commonly called Lord Ellenborough's Act, are repealed by the recent statute 9 Geo. 4. c. 31.

"This recent statute, 9 Geo. 4. c. 31. contains several enactments upon these subjects. The eleventh section enacts, “that if any person unlawfully and maliciously shall administer or attempt to administer to any person, or shall cause to be taken by any person, any poison or other destructive thing, or shall unlaw