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[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 (u).
“ It is true,” says the learned judge just referred to, “ that rape is a most detestable crime; 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 “ confident testimony of sometimes false and malicious “ witnesses” (x).]
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 five 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 (y): and, secondly, it is a misdemeanor punishable by penal servitude for five years or imprisonment, with or without hard labour, to the extent of two years, so to know and abuse any girl above the age
(u) The remarks here made are equally applicable to the case where a party is charged with the crime next mentioned, viz. that of abusing
(or) i Hale, P. C. 635.
(y) 24 & 25 Vict. c. 100, s. 50; 27 & 28 Vict. c. 47.
of ten and under the age of twelve (z),-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 (a); 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 (6).
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.
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" (c). A taciturnity observed likewise by the edict of Con
(:) 24 & 25 Vict. c. 100, s. 51; 27 & 28 Vict. c. 47.
(a) 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 Car. & P. 213; R. v. Neale, 1 Car. & Kir. 391; R. v. Holcroft, 2 Car.
& Kir. 341; R. v. Beale, Law Rep., 1 C. C. R. 10.
(b) Sect. 49.
(c) See in Rot. Parl, 50 Edw. 3, n. 58, a complaint that a Lombard did commit the sin “ that was not to be named.” (12 Rep. 37.)
[stantius and Constans ; "ubi scelus est id quod non proficit scire, jubemus insurgere leges, armari jura gladio ultore, ut exquisitis pænis subdantur infames qui sunt, vel qui futuri sunt, rei” (d).]
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 (e). 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 pæna plectantur ($). 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 any indecent assault upon any male person, shall be guilty of a misdemeanor, punishable with penal servitude for ten or not less than five years, or imprisonment, with or without hard labour, not exceeding two years (9).
IX. [Kidnapping and child stealing.– The forcible stealing away of a man, woman or child from their own country, and sending them into another, was capital by the Jewish (h) and also by the civil law (i). This is un(d) Cod. 2, 9, 31.
(f) 4 Bl. Com. 216; 3 Inst. 59. (e) It was capital under 9 Geo. 4, (9) See 27 & 28 Vict. c. 47. It c. 31, now repealed by 24 & 25 Vict. is to be noticed that by 22 & 23 c. 95. Its punishment (says Black- Vict. c. 17, and 30 & 31 Vict. c. 35, stone, vol. iv. p. 216) “the voice of provisions are made by which, in “ nature and of reason, and the ex- some cases, before an indictment " press law of God (Levit. xx. 13, for an indecent assault can be pre“ 15), determine to be capital; of ferred to or found by the grand “ which we have a signal instance, jury, security must be given for the “ long before the Jewish dispensa- due prosecution of the charge. “tion, by the destruction of two (1) Exod. xxi. 16. “ cities by fire from hcaven.”
(i) Ff. 48, 15, 1. In the civil
[questionably a very heinous crime, as it robs the sovereign of his subjects, banishes a man from his country, and may, in its consequences, be productive of the most cruel and disagreeable hardships; and therefore the common law of England punished it with fine and imprisonment(k).] But with respect to the stealing of children, our modern law is reasonably much more severe; it being provided by 24 & 25 Vict. c. 100, s. 56, that whosoever shall unlawfully, either by force or fraud, lead, take, decoy or entice away, or detain any child under the age of fourteen years (1), with intent to deprive any parent, guardian or other person, having the lawful care or charge of such child, of its possession, or with intent to steal any article on its person ;-or shall, with any such intent as aforesaid, receive or harbour such child, knowing the same to have been so stolen or enticed ;shall be guilty of felony; and he is made liable to penal servitude for not more than seven or less than five years, or to be imprisoned, with or without hard labour, for any term not more than two years; and also, if a male under the age of sixteen, to be whipped, if the court shall so think fit (m).
X. The offence of abandoning young children has also been provided against by the statute last mentioned; and it is enacted, that whosoever shall unlawfully abandon or expose any child under the
in such manner that its life shall be endangered, or its health be permanently injured or be likely to be so, shall be guilty of a misdemeanor, and punishable by penal servitude for five
law the offence of spiriting away and stealing men and children was called plagium, and the offenders plagiarii. (Ff. 48, 15, 1.)
(k) Raym. 474; 2 Show. 221; Skin. 47; 4 Bl. Com. 219.
(1) In the analogous provision contained in 9 Geo. 4, c. 31, s. 21 (now repealed), the age was fixed
at ten years. As to the abduction of an unmarried girl under the age of sixteen, vide sup. 85.
(m) See 27 & 28 Vict. c. 47. A person bonâ fide claiming a right to the possession of the child, or to be its father or mother, is not within the above provision. (See 24 & 25 Vict. c. 100, s. 56.)
years, or imprisonment, with or without hard labour, for a term not exceeding two years (n). And in view of the same object, viz., the better protection of infant lite, it has been since enacted by the 35 & 36 Vict. c. 38, that it shall not be lawful for any person to retain or receive for hire or reward more than one infant (or, in case of twins, more than two infants) under the age of one year, for the purpose of nursing or maintaining such infants apart from their parents for a longer period than twentyfour hours, except in a house which has been registered under that Act. And if it shall be proved to the “ local authority” under whose superintendence such houses are placed, that there has been serious neglect, or that the person registered is incapable of supplying the infants with proper food, or that the house has become unfit for the reception of infants, the house may be struck out of the register. And any offence under this Act may be prosecuted under the Summary Jurisdiction Acts.
XI. Unlawfully endangering railway passengers.Whosoever shall unlawfully and maliciously put or throw on or across a railway any wood, stone or other thing; or displace any rail, sleeper or other thing, or turn any point of machinery belonging to a railway; or show, hide or remove any signal or light; or do any other thing, with intent to endanger the safety of any person travelling or being on such railway (o)-or shall throw against or into any railway engine or carriage any wood, stone or other thing, with intent to endanger the safety of any person being in or upon the same (p—he shall, in any of the above cases, be guilty of felony: and he is liable to penal
(n) 24 & 25 Vict. c. 100, s. 27 ; 27 & 28 Vict. c. 47. See R. v. Cooper, 1 Den. C. C. 459; R. v. Hogan, 2 Den. C. C. 277; R. v. Gray, 26 L. J. (N. S.) M. C. 203.
(0) 24 & 25 Vict. c. 100, s. 32.
In cases under this section, the offender, if a male under the age of sixteen, may be sentenced to be whipped, in addition to the punishments mentioned in the text.
(P) Sect. 33.