and met the prisoner, and they went to London together, and spent three days in visiting places of public entertainment, sleeping together at night, and on Wednesday morning, on getting up, the prisoner said to her, "I'll go to work, and you go home" they separated, and the girl went home; the father swore that his daughter was absent without his knowledge and against his will. The jury found that the father did not consent, and that the prisoner knew he did not consent, and that the prisoner took the girl away with him in order to gratify his passions, and then allow her to return home, but not with a view of keeping her away permanently; and upon a case reserved upon the question, whether, on the facts so found, any offence had been committed under the statute, Erle, C. J., delivered judgment: "We are of opinion that the conviction must be affirmed. The statute was passed for the protection of parents, and for preventing unmarried girls from being taken out of the possession of their parents against their will; and it is clear that no deception or forwardness on the part of the girl in such cases can prevent the person taking her away from being guilty of the offence created by this section. The difficulty which we have is to say what constitutes a taking out of the possession of the father. The taking away might be consistent with the possession of the father, if the girl went away with the party intending to return in a short time; but when a person takes a girl away from the possession of her father, and keeps her away against his will for a length of time, as in this case, keeping her away from her home for three nights, and cohabiting with her during that time, we think the evidence justified the jury in finding the taking to be a taking out of the possession of the father within the meaning of the statute. The prisoner took the girl away from under her father's roof, and placed her in a situation quite inconsistent with the father's possession. In our judgment, therefore, the jury were justified in their verdict by the evidence before them, which we consider to be the point submitted to us, although the prisoner did not intend the taking to be permanent, but when his lust was gratified intended to cast the girl from him. We limit our judgment to the facts of this particular case. It may be that a state of facts might arise upon *9571 which the offence would be complete in law when the girl passed her father's threshold, *as where she is taken away with the intention of keeping her away permanently; but we mean it to be understood, that although we affirm this conviction, we do not intend to say that a person would be liable to conviction under the section if it should appear that the taking was intended to be temporary only, or for a purpose not inconsistent with the relation of father and child. It is sufficient for us to say that in this case the conviction was justified by the evidence."(g)

Where on a similar indictment it appeared that the girl was the younger sister of the prisoner's deceased wife, and had lived in his house up to the time of his wife's death, but on that occasion another married sister had caused her to be placed under the care of another woman, and no improper motive was alleged against the prisoner, he having alleged as his reason for taking the child away that he had promised her father on his death-bed to take care of her; Cockburn, C. J., told the jury that it was clear that the prisoner had no right to take the child out of the woman's custody. But as no improper motive was suggested, it might be concluded that the prisoner wished the child to live with him, and that he meant to discharge the promise he had made to her father, and that he did not suppose he was breaking the law when he took the child away. If the jury should take this view of the case, and be of opinion that the prisoner honestly believed that he had a right to the custody of the child, then, although the prisoner was not legally justified, he would be entitled to be acquitted.(h)

Where on a similar indictment it appeared that the girl was more than fifteen, but in appearance three years older and very prepossessing, and lived with her mother, a widow; on the evening of the alleged abduction she left her mother's house at nine o'clock to spend the night at a married sister's, but, joining company with another girl, they went to a public-house and met the two prisoners, and from

(g) Reg. v. Timmins, Bell C. C. 276. Only argued for the crown, Nov. 1860.
(h) Reg. v. Tinkler, 1 F. & F. 513, Spr. Ass. 1859.

thence went to another public-house, where they met the prisoners again by appointment, and thence to the farming premises of one of the prisoners, where they remained till four o'clock in the morning; it was then proposed that they all should go to London, which they did, and stayed the day there, and one of the prisoners slept with the girl and the other with her companion, and returned the next day. The mother swore that it was not by her consent that the girl had gone away, and that she had inquired everywhere for her without success; but the girl stated that she occasionally went to dances at public-houses, and was occasionally out late at night without any one to look after her, and that her mother on these occasions left the door on the latch, or came down and let her in; that the prisoner who slept with her was not the first man who had connection with her. Cockburn, C. J., directed the jury that there was no case against the other prisoner; and as to this prisoner, if they thought that the mother had by her conduct countenanced the daughter in a lax course of life, by permitting her to go out alone at night and to dance at public-houses, this was not a case that came within the intent of the statute; but *was one where what had occurred, though unknown to her, could not be [*958 said to have happened against her will.(i)

On a similar indictment it appeared that the prisoners persuaded the girl and another, above the age of sixteen, to meet them at the railway station, and accompany them to London, where they stayed a few days, and then returned, the girl going back to her father's house; she accompanied the men very readily, and had been in the habit of staying out late at night, and her conduct was generally bad; it did not appear that the father had taken such care of her, as might have been expected. It was contended that, the words of the Act being "unlawfully take," some taking must have been intended which was unlawful before the Act passed; something in the nature of a trespass must have been intended; and further, that a mere temporary absence was not sufficient. Pollock, C. B., held that it was not necessary to prove such a taking as was suggested, and that the taking proved was sufficient to satisfy the statute, and that the second objection was answered by Reg. v. Timmins;(k) but he had considerable doubt whether the statute was intended to apply to a case where so much profligacy on both sides was shown. A father is bound to take reasonable care of his child, and this man's conduct in regard to the management of his daughter caused a doubt whether she was really taken away against the will of her father.()

Where on a similar indictment it appeared that the girl, who was fourteen years old, lived with her father, but the prisoners saw her in the streets by herself, and invited her to go with them, giving her drink to induce her, which made her dizzy and sick; and they took her to a lonely house, and there one of them had criminal intercourse with her, keeping her there all night; and the next morning the child was found there crying; Martin, B., said: "There must be a taking out of the possession of the father. Here the prisoners picked up the girl in the streets, and, for anything that appeared, they might not have known that the girl had a father. The essence of the offence was taking the girl out of the possession of the father. The girl was not taken out of the possession of any one."(m)

It is clearly settled that a father is entitled to the custody of his child until it attains the age of sixteen, unless there be some sufficient reason to the contrary. Writs of habeas corpus had issued to J. Howse and R. Hopkins to bring up the body of a young lady, aged fifteen years; she left her father's house, and Howse alleged that, at the request of the girl's stepmother, he took charge of her, and kept her at his house for some days; that the girl left his house to go to the house of her aunt, and that he had since learned that she had left her aunt's by direction of her stepmother, to go to the house of her stepmother's sister; and it was held that the father was entitled to the custody of the child, she being fifteen years of age, when that child, without any adequate or justifying cause, desired to withdraw herself

(i) Reg. v. Primelt, 1 F. & F. 50, Spr. Ass. 1858.

(k) Supra, p. 957.

(1) Reg. v. Frazer, 8 Cox C. C. 446, Spr. Ass. 1861. Pollock, C. B., after consulting Williams, J.

(m) Reg. v. Green, 3 F. & F. 274, Sum. Ass. 1862.

958

OF CLANDESTINE MARRIAGES, 6 & 7 WILL. 4, c. 85. [BOOK III. from his parental care and control. The Court must lay down a general rule as to *the age when the minor might be left to freedom of choice. The Legisla*959] ture had thrown light on this subject, by which the Court might safely be guided. The age of sixteen had been pointed out as the age up to which the consent of a female child should not justify her withdrawal from the father's roof without its being considered a misdemeanor. The Court might, therefore, safely act upon the rule, that the age of sixteen is that up to which a female child ought to be subject to parental control. If the persons, who in this case had done their best to baffle the exertions of this Court, had been indicted under the 9 Geo. 4, c. 31, s. 20, no one could doubt that they would have been liable to be convicted of the offence. The Court ordered the girl to be restored to her father.(n)

Many of the provisions of the Marriage Act, 4 Geo. 4, c. 76, have been already stated.(0) The twenty first section enacts, "That if any person shall, after the first day of November, 1823, solemnize matrimony in any other place than a church or such public chapel wherein banns may be lawfully published, or at any other time than between the hours of eight and twelve in the forenoon, unless by special license from the Archbishop of Canterbury; or shall solemnize matrimony without due publication of banns, unless license of marriage be first had and obtained from some person or persons having authority to grant the same: or if any person falsely pretending to be in holy orders, shall solemnize matrimony 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(p) for the space of fourteen (q) years, according to the laws in force for transportation of felons, provided that all prosecutions for such felony shall be commenced within the space of three years after the offence committed.”(r)

By the Marriage Act, 6 & 7 Will. 4, c. 85, s. 39, "every person who after the said first day of March (1837), shall knowingly and wilfully solemnize any marriage in England, except by special license, in any other place than a church or chapel in which marriages may be solemnized according to the rites of the Church of England, or than the registered building or office specified in the notice and certificate as aforesaid, shall be guilty of felony (except in the case of a marriage between two of the Society of Friends, commonly called Quakers, according to the usages of the *960] said society, or between two persons professing the Jewish religion, according to the usages of the Jews), and every person who in any such registered building or office shall knowingly and willfully solemnize any marriage in the absence of a registrar of the district in which such registered building or office is situated, shall be guilty of felony :(t) and every person who shall knowingly and wilfully solemnize any marriage in England after the said first day of March (except by license), within twenty-one days after the entry of the notice to the superintendent registrar as aforesaid, or if the marriage is by license, within seven days after such entry, or after three calendar months after such entry,(s) shall be guilty of felony.”(t) (n) Ex parte Barford, 8 Cox C. C. 405. The girl had been privately examined by Cockburn, C. J.

(0) Ante, p. 277, et seq.

(P) Penal servitude by the 20 & 21 Vict. c. 3, s. 2, ante, p. 4.

(9) And not less than three years by the 9 & 10 Vict. c. 24, s. 1, ante, p. 3, and the 20 & 21 Vict. c. 3, s. 2, ante, p. 4.

(r) This section seems incidentally repealed by the 6 & 7 Will. 4, c. 85, except as to the offence of pretending to be in holy orders, and solemnizing matrimony according to the rites of the Church of England. See Lonsd. Cr. L. 140. The 4 Geo. 4, c. 76, contains no provisions for the punishment of principals in the second degree and accessories. But the principals in the second degree are punishable like the principals in the first degree, and as to the accessories, see ante, p. 67, et seq. The Act does not extend to the marriages of any of the royal family (s. 30), nor to any marriages amongst Quakers or Jews, where both the parties to any such marriage shall be Quakers or Jews (s. 32). And it extends only to that part of the United Kingdom called England (s. 33). And see further as to the provisions of this Act, ante, p. 277, et seq.

(8) See the 19 & 20 Vict. c. 119, s 9, &c.

() This is a felony for which no punishment is provided; it is therefore punishable nder the 7 & 8 Geo. 4, c. 28, s. 8, and 1 Vict. c. 90, s. 5, ante, p. 3. The principals in second degree are punishable in the same manner as the principals in the first degree; s to accessories, see ante, p. 67, et seq.

Sec. 40. "Every superintendent registrar who shall knowingly and wilfully issue any certificate for marriage after the expiration of three calendar months after the notice shall have been entered by him as aforesaid, or any certificate for marriage by license before the expiration of seven days after the entry of the notice, or any certificate for marriage without license before the expiration of twenty-one days after the entry of the notice, (u) or any certificate, the issue of which shall have been forbidden as aforesaid by any person authorized to forbid the issue of the registrar's certificate, or who shall knowingly and wilfully register any marriage herein declared to be null and void, and every registrar who shall knowingly and wilfully issue any license for marriage after the expiration of three calendar months after the notice shall have been entered by the registrar as aforesaid, or who shall knowingly and wilfully solemnize in his office any marriage herein declared to be null and void, shall be guilty of felony." (v)

Sec. 41. "Every prosecution under this Act shall be commenced within the space of three years after the offence committed."

Sec. 42. "If any person shall knowingly and wilfully intermarry after the said first day of March, under the provisions of this Act, in any place other than the church, chapel, registered building, or office, or other place specified in the notice and certificate aforesaid, or without due notice to the superintendent registrar, or without certificate of notice duly issued, or without license, in case a license is necessary under this Act, or in the absence of a registrar or superintendent registrar, where the presence of a registrar or superintendent registrar is necessary under this Act, the marriage of such persons, except in any case hereinafter excepted, shall be null and void: provided always, that nothing herein contained shall extend to annul any marriage legally solemnized according to the provisions of an Act passed in the fourth year of his late Majesty George the Fourth, intituled, "An Act for amending the laws respecting the solemnization of marriages in England."

Sec. 43. "If any valid marriage shall be had under the provisions of this Act, by means of any wilfully false notice, certificate, or declaration made by either [*961 party to such marriage, as to any *matter to which a notice, certificate, or declaration is herein required, it shall be lawful for his Majesty's Attorney-General or Solicitor-General to sue for a forfeiture of all estate and interest in any property accruing to the offending party by such marriage; and the proceedings thereupon and consequences thereof shall be the same as are provided in the like case with regard to marriages solemnized by license before the passing of this Act according to the rites of the Church of England."

By the 1 Vict. c. 22, s. 3, "Every superintendent registrar, who shall knowingly and wilfully issue any license for marriage after the expiration of three calendar months after the notice shall have been entered by the superintendent registrar, as provided by the said Act for marriages, (w) or who shall knowingly and wilfully solemnize, or permit to be solemnized in his office any marriage in the last recited Act declared to be null and void, shall be guilty of felony."(x)

The 12 Geo. 3, c. 11, confirms the prerogative of the crown to superintend and approve of the marriages of the royal family. (y) The first section enacts, "That no descendant of the body of King George the Second, male or female (other than the issue of princesses who may have married, or may hereafter marry, into foreign families), shall be capable of contracting matrimony without the previous consent of his Majesty, his heirs, or successors, 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 license 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, without such consent first had and obtained, shall be null and void to all intents and purposes whatsoever."(z) Provision is then made for a marriage, with

(u) See the 19 & 20 Vict. c. 119, s. 9, &c.

(v) See note (t) supra, and see the other provisions of this Act, ante, p. 283, et seq. (w) 6 & 7 Will. 4, c. 85.

(x) See note (1) supra, p. 960, for the punishment.

(3) 1 East P. C. c. 13, s. 7, p. 478.

(2) See the Sussex Peerage case, 11 Cl. & F. 85.

VOL. I.-49

out the royal consent, of any such descendant, 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 declare their disapprobation of the marriage. (a) The third section of the statute enacts, "That every person who shall knowingly or wilfully presume to solemnize, or to assist, or to be present at the celebration of any marriage, with any such descendant, or at his or her making any matrimonial contract, without such consent as aforesaid first had and obtained, except in the case above-mentioned, shall, being duly convicted thereof, 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."

Upon the trial of any offence mentioned in this chapter the defendant may, under the 14 & 15 Vict. c. 100, s. 9, be convicted of an attempt to commit the same, and thereupon may be punished as if he had been convicted on an indictment for such attempt.(b)

*962]

*CHAPTER THE EIGHTH.

OF KIDNAPPING, AND CHILD-STEALING.

Sec. I.-Of Kidnapping.

THE stealing and carrying away, or secreting of any person, sometimes called kidnapping, is an offence, at common law, punishable by fine and imprisonment. (a) The forcible abduction or stealing and carrying away of any person, by sending him from his own country into some other, or to parts beyond the seas, whereby he is deprived of the friendly assistance of the laws to redeem him from such his captivity, is 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 ben 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.()

The 31 Car. 2, c. 2 (the celebrated Habeas Corpus Act), makes provision against any inhabitant of Great Britain being sent prisoner to foreign countries. The twelfth section enacts, that no subject of this realm, being an inhabitant or resiant of England, Wales, or the Town of Berwick-upon-Tweed, shall be sent prisoner into Scotland, Ireland, Jersey, Guernsey, Tangier, or into parts, garrisons, islands, or places beyond the seas, within or without the dominions of his Majesty. Such imprisonment is then declared to be illegal; and an action for false imprisonment is given to the party, with treble costs, and damages not less than 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 *963] 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 (a) Sec. 2.

(b) See ante, p. 1.

(a) 1 East P. C. c. 9, s. 3, pp. 429, 430; Rex v. Grey, T. Raym. 473; Comb. 10. The pillory was also part of the punishment before the 56 Geo. 3, c. 138. The 43 Eliz. c. 13, was repealed by the 7 & 8 Geo. 4, c. 27.

(b) 1 East P. C. c. 9, s. 4, p. 430.