[sumed by law incapable to commit a rape; and therefore it seems cannot be found guilty of it (z); for though in other felonies malitia supplet ætatem, as has in some cases been shown, yet as to this particular species of felony, the law supposes an imbecility of body as well as mind (a). The civil law seems to suppose a prostitute, or common harlot, incapable of any injuries of this kind (b); not allowing any punishment for violating the chastity of her who hath indeed no chastity at all, or at least hath no regard to it. But the law of England does not judge so hardly of offenders, as to cut off all opportunity of retreat even from common strumpets, and to treat them as never capable of amendment: and therefore holds it to be felony to force even a concubine or harlot; because the woman may have forsaken that unlawful course of life (c); for, as Bracton well observes, "licet meretrix fuerit antea, certe tunc meretrix non fuit, cum reclamando nequitiæ ejus consentire noluit (d)." As to the material facts requisite to be given in evidence and proved upon an indictment for rape, they are of such a nature that, though necessary to be known and settled for the conviction of the guilty and preservation of the innocent, and therefore to be found in such criminal treatises as discourse of these matters in detail,]-yet it is not desirable to discuss them here. [We shall therefore merely add upon this head, a few remarks from Sir Matthew Hale, with regard to the competency and credibility of witnesses, which may, salvo pudore, be considered. And, first, the party ravished may give evidence upon oath, and is in law a competent witness; but the credibility of her testimony and how far she is to be believed, must be left to the jury upon the circumstances of fact that concur (z) R. v. Jordan, 9 Car. & P. 118. The law is the same in the case of an assault with intent to commit a rape. R. v. Eldershaw, 3 Car. & P. 396. (a) 1 Hale, P. C. 631. (b) Cod. 9, 9, 22; Ff. 47, 2, 39. (c) 1 Hale, P. C. 629; Hawk. P. C. b. 1, c. 41, s. 2. (d) L. 3, c. 27. [in that testimony. For instance, if the witness be of good fame; if she presently discovered the offence and made search for the offender; if the party accused fled for it ;these and the like are concurring circumstances, which give greater probability to her evidence. But on the other side, if she be of evil fame, and stand unsupported by others; if she concealed the injury for any considerable time after she had opportunity to complain; if the place where the fact was alleged to have been committed, was where it was possible she might have been heard and she made no outcry ;-these and the like circumstances carry a strong, but not conclusive, presumption that her testimony is false or feigned.] It is to be observed, that she is not compellable, on her examination, to answer the question whether she has not had connection with other men (e); but if she replies in the negative, the accused is then at liberty to call persons to contradict her (f). And he is allowed to show that he had himself had connection with her before the alleged rape (g), or that her character for chastity or decency is notoriously bad (h). [Moreover, if the rape be charged to be committed on an infant under twelve years of age, she may still be a competent witness if she hath sense and understanding to know the nature and obligations of an oath, or even to be sensible of the wickedness of telling a deliberate lie. Nay, though she hath not, it is thought by Sir M. Hale that she ought to be heard without oath, to give the court information (i): and others have held that what the child told her mother or other relations may be given in evidence, since the nature of the case admits frequently of no better proof. But it is now settled that no hearsay evidence can be given of the declarations of a child who hath not (e) R. v. Hodgson, R. & R. C. C. 211. (f) R. v. Robins, 2 Mood. & R. 512; R. v. Barker, 3 Car. & P. 589; Roscoe's Evidence on Criminal Cases, 6 ed. p. 810. (g) R. v. Martin, 6 Car. & P. 562. [capacity to be sworn, nor can such child be examined in court without oath (j); and that there is no determinate age at which the oath of a child ought either to be admitted or rejected. Yet where the evidence of children is admitted, it is much to be wished, in order to render their evidence credible, that there should be some concurrent testimony of time, place and circumstances. In order to make out the fact, and that the conviction should not be grounded singly on the unsupported accusation of an infant under years of discretion.] For in this, as in other cases, a witness may be [competent, that is, may be admitted to be heard, and yet, after being heard, may prove not to be credible or such as the jury is bound to believe; for one excellence of the trial by jury is, that the jury are triers of the credit of the witnesses, as well as of the truth of the fact (k). "It is true," says the learned judge just referred to, "that rape is a most detestable crime, and therefore ought "severely and impartially to be punished with death; but "it must be remembered that it is an accusation easy to be "made, and hard to be proved, but harder to be defended "by the party accused, though innocent." Sir M. Hale then relates two very extraordinary cases of malicious prosecution for this crime that had happened within his own observation, and concludes thus: "I mention these "instances that we may be the more cautious upon trials "of offences of this nature, wherein the court and jury may with so much ease be imposed upon without great "care and vigilance; the heinousness of the offence many "times transporting the judge and jury with so much indignation, that they are over hastily carried to the "conviction of the person accused thereof, by the con"fident testimony of sometimes false and malicious wit66 nesses (1)."] 66 (j) R. v. Brasier, 1 Leach, C. L. 237. (k) The remarks here made are equally applicable to the case where a party is charged with the crime next mentioned, viz. that of abusing a child. (2) 1 Hale, P. C. 635. VII. Next to rape may be classed the crime of defilement or abuse of children. For, first, it is a felony punishable with penal servitude for life, or not less than three years, or imprisonment (with or without hard labour) for not more than two years, unlawfully and carnally to know and abuse any girl under the age of ten years, even though she consent (m): and, secondly, it is a misdemeanor punishable by penal servitude for three years or imprisonment with or without hard labour to the extent of two years, so to know and abuse any girl above the age of ten and under twelve (n),-even though she consent. Moreover, punishment by imprisonment as last mentioned may be inflicted on any person who shall be convicted of any attempt to have carnal knowledge of a girl under the age of twelve-even though she consent (o); and also, on whomsoever shall by false pretences or representations or other fraudulent means commit the misdemeanor of procuring any female under the age of twenty-one, to have illicit carnal connexion with any man (p). VIII. What has been observed in the case of rape,[especially with regard to the manner of proof, which ought to be the more clear in proportion as the crime is the more detestable,-may be applied to another offence, of a still deeper malignity, the infamous crime against nature, committed either with man or beast; a crime which ought to be strictly and impartially proved, and then as strictly and impartially punished. But it is an offence of so dark a nature, so easily charged, and the negative so difficult to be proved, that the accusation should be clearly made out; for, if false, it deserves a punishment inferior only to that of the crime itself. (m) 24 & 25 Vict, c. 100, s. 50. (n) Sect. 51. (o) Sect. 52. As to the crime of abusing children, see R. v. Hughes, 1 Cox, Cr. C. 247; R. v. Ashbolt, 2 Cox, Cr. C. 115; R. v. Martin, 9 [We will not act so disagreeable a part as to dwell any longer upon a subject, the very mention of which is a disgrace to human nature. It will be more expedient to imitate in this respect the delicacy of our English law, which treats it as a crime not fit to be named; peccatum illud horribile, inter Christianos non nominandum (r)." A taciturnity observed likewise by the edict of Constantius and Constans (s); "ubi scelus est id quod non proficit scire, jubemus insurgere leges, armari jura gladio ultore, ut exquisitis pœnis subdantur infames qui sunt, vel qui futuri sunt, rei."] In our own country [this offence, (being in the times of popery only subject to ecclesiastical censures,) was made felony without benefit of clergy by statute 25 Hen. VIII. c. 6, (revived and confirmed by 5 Eliz. c. 17),] and until very recently remained a capital offence (t). It is, however, now enacted by 24 & 25 Vict. c. 100, s. 61, that every person convicted of the abominable crime of buggery, committed either with mankind or with any animal, shall be kept in penal servitude for life, or not less than ten years. [And the rule of law herein is, that, if both are arrived at years of discretion, agentes et consentientes pari pœnâ plectantur (u).] Moreover, (by sect. 62), whosoever shall attempt to commit this crime, or shall be guilty of an assault with intent to commit the same, or of indecent assault upon any male any person, shall be guilty of a misdemeanor, punishable with penal servitude for ten or not less than three years, or imprison |