« EelmineJätka »
sent or non-consent of the child, which was therefore considered gy, by 18 Eliz.
victed, should suffer as a felon without allowance of clergy.
ledge of a child above the age of ten and under twelve years was knowledge of
misdemeanor afterwards well established, that if the child was above ten years Westminster,
by stat. of old it was not a felonious rape, unless it was against her will
I. c. 13. now and consent. (r) But children above that age, and under twelve
repealed. 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 plea
tion of that act substitutes the following provisions and enacts s. 17. Carnal
court shall award."
31, s. 15. repeal this act but enacts that every person convicted
mankind or with any animal, shall suffer death as a felon."
14, 15, instead of “stands at this day absolutely” read “ after
“ But the 5 Eliz c. 17. is now repealed by 9 G. 4. c. 31.
tion and unlawful taking,” and insert“ The forcible abduction
(9) 1 Hale 631. 2 Inst. 180. 3 Inst. 60.
() Sum. 112. 4 Blac. Com. 212. I East.P. C. c. 10. 9. 2. p. 436.
(s) Ante 556.
(1) 4 Blac. Com. 212. 1 East. P. C. c. 10. s. 9. p. 436
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 insert " The repealed statute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 “ 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 slatute | Geo. 4. c. 115. repealed this enactment of 39 Eliz. c. 9., and made the offence punishable by transportation or imprison. ment. This statute I 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 is repealed by 9 G. 4.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 Some of the points decided upon the repealed statutes may still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 le sufficient,” and insert “ The taking alone did not constitute the offence under the repealed statute and it was ne. cessary 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 de
cided 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
the page, and also pages 573, 574, 575, 576, and 577, to the end offence shall
of line 16, and insert“ Upon the same repealed statute where a be said to
woman was taken away forcibly in one county, and afterwards have been
went voluntarily into another county, and was there married or committed.
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 ob
“ It was resolved, that an indictment for this offence upon the restatement in
pealed statute ought expressly to set forth that the woman takea the indict
away had lands or goods, or was heir apparent, and that the tak-
(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, Cor. Lawrence J. Oxford Lent ass. 1804.
(1) 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 of the eri
away and married might be a witness against the offeuder if the dence of the force were continuing upon her till the marriage; and that she woman when might herself prove such continuing force: (12) for though the taken away
and married. ofiender 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 absurd 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 jaw) be made use of to stop the mouth of the most material witness against him. (9) And where the marriage was against the will of the woman at the time, there does not seein to be any good ground upon which her competency could have been ob. jected to, though she might have given her subsequent assent. (*) 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 bim from the day of her mar
her parents, or persons having the charge of her, is an offence of s. 20.
girl from her of sixteen years,
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 punishment, by fine or imprisonment, or by both, as the Court shall
award.' “ The provisions of the repealed statute, 4 & 5 Ph. & M. c. 8. and Repealed sta
the construction upon some parts of it, may still be worthy of tate of 4 & 5 observation."
Ph. & M, c. 8. 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.”
merchant ship," and to the end of the page, and insert, “ But it 9 G. 4. c. 31.
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 or shall refuse to bring home with him again all such of the men
ipsam maritandam were usually added in indictments upon this statute and that it was safest so to do.
(n) Fulwood's case Cro. Car. 488. Brown's case 1 Ventr. 243. Swendsen's case, 5 St. Tri. 456.
(oj I Hale 660,961, 4 Blac. Com. 209.
(p) i 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
(9) 4 Blac. Com: 209.
($) Perry's case, Bristol, 1794. 1 Hawk.
his seaman on
whom he carried out with him, as are in a condition to return shore, or re
when he shall be ready to proceed on his homeward bound voy, fusing to bring
age, every such master shall be guilty of a misdemeanor, and him home.
being lawfully convicted thereof, shall be imprisoned for such Mode of trial,
term as the Court shall award ; and all such offences may be &c.
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 evi
dence on the trial of every such indictment or information.” 583, 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.” 9 G. 4. c. 31.
584, dele the whole of the section, and insert “The statute 54 Geo. 3. c. 101. is Child stealing
repealed by the 9 Geo. 4. c. 31. the twenty-first section of which enacts, “ that if any person shall inaliciously, 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, decoved, enticed away, or detained as hereinbefore 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 Not to extend
Court shall so think fit,) in addition to such imprisonment: proto fathers tak
vided always, that no person who shall have claimed to be the ing their ille
father of an illegitimate child, or to have any right to the posgitimate chil. dren.
session 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 bighly penal by the enactments of several statutes now repealed. The statute 9 Geo. I. 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. c. 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. 9 G. 4. c.31.
“This recent statute, 9 Geo. 4. c. 31. contains several enactments s. 11.
upon these subjects. The eleventh section enacts, "that if any Attempts to
person unlawfully and maliciously shall administer or attempt murder, when
to administer to any person, or shall cause to be taken by any evidenced by
person, any poison or other destructive thing, or shall unlaw.
fully and maliciously attempt to drown, suffocate, or strangle certain acts,
victed thereof, shall suffer death as a felon.
liciously shall shoot at any person, or shall, by drawing a trigger, ing at, or
the paragraph, and insert, The cases upon the construction of
9 lives at the top of page 617, and insert, “ Amongst the principal Assault with of those assaults, the aggravated nature of which may be said to intent to comarise from the great criminality of the object intended to be mit a robbery, effected, is an assault upon a person with a felonious intent to and demandcommit a robbery; and nearly allied to this, is a demand of pro- ing money by perty effected by menaces or force, and with the intent of stcal- menaces or ing such property. These offences were made felonies by the force, with inlate statute, i Geo. 4.c. 51. s. 5. which repealed the statute 7 Geo.
tent to steal.
addition to such imprisonmcat.'
should maliciously assault any other person, with intent to rob tute 4 G. 4.c.