CHAPTER THE SIXTH. A capital offence by the 9 Geo. 4, c. 31. Definition of the offence. OF SODOMY. In treating of the offence of sodomy, peccatum illud horribile, inter Christianos non nominandum, it is not intended to depart from the reserved and concise mode of statement which has been adopted by other writers. It appears from different authors, that in ancient times the punishment of this offence was death: (a) but it had ceased to be so highly penal, when the 25 H. 8, c. 6, again made it a capital offence. The 9 Geo. 4, c. 31, s. 1, repeals this act, but enacts by sec. 16, "that every person convicted of the abominable crime of buggery, committed either with mankind or with any animal, shall suffer death as a felon." The offence consists in a carnal knowledge committed against the order of nature by man with man; or in the same unnatural manner with woman; or by man or woman in any manner with beast. (b) With respect to the carnal knowledge necessary to constitute this offence, as it is the same that is required in the case of rape, it will be sufficient to refer to the preceding chapter. (c) In this offence as well as in rape, it has been held since the 9 Geo. 4, c. 31, that the crime is complete on proof of penetration, and even if emission be expressly negatived. (d) To constitute this offence, the act must be in that part where sodomy is usually committed. The act in a child's mouth does not constitute the offence. (e) An unnatural connection with an animal of the fowl kind is not sodomy; a fowl not coming under the term "beast ;" and it was agreed clearly not to be sodomy, when (a) But the books differ as to the mode of punishment. According to Britton, a sodomite was to be burnt, Britt. lib. 6, c. 9. In Fleta it is said, pecoruntes et sodomitæ in terrá vivi confodiantur. With this the Mirror agrees; but adds, "issint que memoire seont restraine, pur le grand abomination del fait:" thereby consigning them, with just indignation, to shameful and eternal oblivion. Mirr. c. 4, s. 14. About the time of Richard the First, the practice was to hang a man, and drown a woman, guilty of this offence. 3 Inst. 58. (b) 1 Hale, 669. Sum. 117. 3 Inst. 58, 59. 1 Hawk. P. C. c. 4. 6 Bac. Ab. tit. Sodomy. 3 Blac. Com. 215. 3 Burn. Just. tit. Buggery, 1 East, P. C. c. 14, s. 1, p. 480. Wiseman's case, Fortesc. 91. As to the offence by man with woman if the case should occur, it may be proper to inquire whether the doctrine in the text is sufficiently supported by the authorities cited. (c) Ante, p. 678, et seq. (d) Rex v. Reekspear, R. & M. C. C. R. 342. Rex v. Cozins, 6 C. & P. 351, Park, J. See Rex v. Cox, R. & M. C. C. R. 337, ante, p. 683. (e) Rex v. Jacobs, East. T. 1817. Russ. & Ry. 331. the fowl was so small that its private parts would not admit those of a man, and were torn away in the attempt. (ƒ) and accessories. Those who are present, aiding and abetting in this offence, are Of aiders, all principals: (g) but if the party on whom the offence is committed be within the age of discretion, namely, under fourteen, (h) it is not felony in him, but only in the agent. (i) There may be accessories before and after in this offence, as the statute makes it felony generally. (j) The indictment must charge that the offender contrà naturæ Indictment. ordinem rem habuit veneream, et carnaliter cognovit. (k) But it is said, that this alone would not be sufficient; and that, as the statute describes the offence by the term "buggery," the indictment should also charge peccatumque illud sodomiticum Anglicè dictum buggery adtunc et ibidem nequiter, felonicè, diabolicè, ac contrà naturam, commisit, ac perpetravit. (1) That which has been before stated with regard to the evidence Evidence. and manner of proof in cases of rape, ought especially to be observed upon a trial for this still more heinous offence. When strictly and impartially proved, the offence well merits strict and impartial punishment; but it is from its nature so easily charged, and the negative so difficult to be proved, that the accusation ought clearly to be made out. The evidence should be plain and satisfactory, in proportion as the crime is detestable. (m) A party consenting to the commission of an offence of this kind, Accomplice. whether man or woman, is an accomplice, and requires confirmation. On the trial of an indictment for an unnatural offence by a man upon his own wife, she swore that she resisted as much as she could. Patteson, J., said, "There was a case of this kind which I had the misfortune to try, and it there appeared that the wife consented. If that had been so here the prisoner must have been acquitted; for although consent or non-consent is not material to the offence, yet as the wife, if she consented, would be an accomplice, she would require confirmation; and so it would be with a party consenting to an offence of this kind, whether man or woman.” (n) Upon an indictment for beastiality, the prisoner, if acquitted of the capital charge, cannot be convicted of an assault under the 1 Vict. c. 85, s. 11, as that section only applies to "assaults against the person." (0) (f) Rex v. Mulreaty, Hil. T. 1812. MS. Bayley, J. (g) 1 Hale, 670. 3 Inst. 59. Fost. 422, 423. (h) Ante, 2, 3. (i) 1 Hale, 670. 3 Inst. 59. 1 East, P. C. c. 14, s. 2. Fost. 422, 423. (j) 1 Hale, 670. (k) 1 Hawk. P. C. c. 4, s. 2. 3 Inst. 58. 59. (1) Fost. 424, referring to Co. Ent. 351 b, as a precedent settled by great advice. (m) 4 Blac. Com. 215. Ante, p. 691. (a) Reg. v. Jellyman, 8 C. & P. 604. Perhaps it may be doubtful whether a wife, who consented, would be a competent witness against her husband. The cases, in which she has been held competent as (0) Reg. v. Eaton, 8 C. & P. 417, Attempts to commit felony. It is not allowable to show, on the trial of an indictment, that the prisoner has a general disposition to commit the same kind of offence as that charged against him; therefore, in a prosecution for an infamous crime an admission by the prisoner that he had committed such an offence at another time, and with another person, and that his natural inclination was towards such practices, ought not to be received in evidence. (p) In cases where it is not probable that all the circumstances necessary to constitute this offence will be proved, it may be advisable only to prefer an indictment for an assault with intent to commit an unnatural crime. And it should be observed, that the mere soliciting another to the commission of this crime has been treated as an indictable offence. (q) (p) Rex v. Cole, Buckingham Sum. Ass. 1810, and by all the judges, M. T. following. MS. C. C. R. 1. 1 Phil. Evid. 499. (9) See a precedent of an indictment for such solicitation, 2 Chit. Crim. L. 50. And for the principles and cases upon which such ⚫ an indictment may be supported, see ante, 46, 47. CHAPTER THE SEVENTH. OF THE FORCIBLE ABDUCTION AND UNLAWFUL TAKING AWAY OF FEMALES; AND OF CLANDESTINE MARRIAGES. It appears to be the better opinion, that if a man marry a woman Offences at under age, without the consent of her father or guardian, it will not common law. be an indictable offence at common law. (a) But if children be taken from their parents or guardians, or others entrusted with the care of them, by any sinister means, either by violence, deceit, conspiracy, or any corrupt or improper practices, as by intoxication, for the purpose of marrying them, it appears that such criminal means will render the act an offence at common law, though the parties themselves may be consenting to the marriage. (b) And seduction may be attended with such circumstances of combination and conspiracy as to make it an indictable offence. A case is reported where Lord Grey and others were charged, by an information at common law, with conspiring and intending the ruin of the Lady Henrietta Berkeley, then a virgin unmarried, within the age of eighteen years, one of the daughters of the Earl of Berkeley, (she being under the custody, &c., of her father,) and soliciting her to desert her father, and to commit whoredom and adultery with Lord Grey, who was the husband of another daughter of the Earl of Berkeley, sister of the Lady Henrietta, and to live and cohabit with him; and further, the defendants were charged that, in prosecution of such conspiracy, they took away the Lady Henrietta at night from her father's house and custody, and against his will, and caused her to live and cohabit in divers secret places with Lord Grey, to the ruin of the lady, and to the evil example, &c. The defendants were found guilty, though there was no proof of any force; but on the contrary it appeared that the lady, who was herself examined as a witness, was desirous of leaving her father's house, and concurred in all the measures taken for her departure, and subsequent concealment. It was not shown that any artifice was used to prevail on her to leave her father's house: but the case was put upon the ground that there was a solicitation and enticement of her to unlawful lust by Lord Grey, who was the principal person concerned, the others being his servants, or persons acting by his command, and under his controul. (c) (a) 1 East, P. C. c. 11, s. 9, p. 458. (b) Id. ibid. p. 459. And see in 3 Chit. Crim. L. 713, a precedent of an information for a misdemeanor, in procuring a marriage with a minor, by false allega tions. (c) Rex v. Lord Grey and others, 3 St. Tri. 519. 1 East, P. C. c. 11, s. 10, p. 460. Forcible abduction of a account of her woman on fortune with intent to marry her, &c. 39 Eliz. c. 9. Accessories. Construction of the statute 3 Hen. 7, c. 2. The forcible abduction of a woman from motives of lucre is an offence of the degree of felony, by the 9 Geo. 4, c. 31, which repeals several former statutes upon this subject. (d) It enacts, by sec. 19, 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 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." 66 It was made a question of considerable doubt, whether persons receiving wittingly the woman so taken against her will, and knowing the same," were ousted of clergy by the statute of Elizabeth, when that statute was in existence. (e) But it was agreed that those who received the offender, knowingly, were only accessories after the fact, according to the rule of the common law. (ƒ) With respect to those who were only privy to the marriage, but in no way parties, or consenting to the forcible taking away, it was holden that they were not within the statute. (g) Where the woman had nothing, and was not heir apparent, the case was not within the statute. (h) Thus where a man, worth 5,000% in lands and goods, had a son and daughter, and the daughter was enticed from his house, forced into the country, and there married; a bill being exhibited against the husband for this conduct, it was referred to the Chief Justice and Hobart, whether this was within the statute, and so not examinable in the Star Chamber : and, on conference with all the judges, they held that it was not within the statute; because the daughter had no substance of her own, and was not heir apparent, and it was only to women having substance of their own, or being heirs apparent, that the statute applied. (i) It was no sort of excuse that the woman was at first taken away with her own consent, if she afterwards refused to continue with the offender, and was forced against her will; for till the time when the force was put upon her, she was in her own power; and she might from that time as properly be said to be taken against her will, as if she had never given any consent. (j) Getting a woman inveigled out by confederates, and then detaining and taking her away, was a taking within the statute. Thus, where a confederate of the prisoner's inveigled a girl of fourteen, having a portion of 5,000%, to go with her and a maid servant in a coach into the Park, where the prisoner got into the coach, and the two women got out; and the (d ) 3 H. 7, c. 2. 39 Eliz. c. 9. 1 Geo. 4, c. 115. 4 & 5 Ph. & M. c. 8. (e) 1 Hale, 661. 1 East, P. C. c. 11, (f) 1 Hale, 661. 1 Hawk. P. C. c. 41, (g) Fulwood's case, Cro. Car. 488, 489. 1 Hawk. P. C. c. 41, s. 10. (h) 12 Co. 100. (i) Burton v. Morris, Hob. 182, and see Cro. Car. 485. (j) 1 Hawk. P. C. c. 41, s. 7. Cro. Car. 485. |