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Necessary statements in the indictment.
and was inclined to doubt the Christian religion, when Lawrence, J., after having enquired of the counsel for the prosecution, whether they had any further evidence to offer of force in the county of Oxford, and been told by them that they had not, said, that he was of opinion the case should not proceed any further. The learned judge then addressed himself to the jury, and told them, that, in order to constitute the offence with which the prisoners were charged, there must be a forcible taking, and a continuance of that force into the county where the defilement takes place, and where the indictment is preferred: that in the present case, though there appeared clearly to have been force used for the purpose of taking the prosecutrix from her house, yet it appeared also, that in the course of the journey she consented; as she did not ask for assistance at the inns, turnpike gates, &c. where she had opportunities; and that, as she was unable to fix times or places with any precision, this consent probably took place before the parties came into the county of Oxford; and that they must therefore acquit the prisoners.(k)
It has been resolved, that an indictment for this offence must expressly set forth that the woman taken away had lands or goods, or was heir apparent; and that the taking was against her will; and that it was for lucre; and also that she was married or defiled; such statements being necessary to bring a case within the preamble of the statute, to which the enacting clause clearly refers, when it speaks of persons taking away a woman “ so against her will." But it is said not to be necessary to state in the indictment, that the taking was with an intention to marry or defile the party, because the words of the statute do not require such an intention, nor does the want of it in any way lessen the injury.(m)
There is no doubt but that the woman taken away and married may be a witness against the offender, if the force were continuing upon her till the marriage ; and that she may herself prove such continuing force :(n) for, though the offender be her husband de facto, he is no husband de jure, in case the marriage was actually against her will.(o) It seems, however, to have been questioned, how far the evidence of the inveigled woman can be allowed, in cases where the actual marriage is good by her consent having been obtained after her 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 ad
(k) Rex v. Lockhart and Loudon (0) I Hale 660, 961. 4 Blac. Com. Gordon, cor. Lawrence, J., Oxford 209. Lent Ass. 1804.
(p) i Hale 661, where the author (1) 1 Hawk. P. C. c. 41. s. 4. 1 Hale observes upon Brown's case, (ante, 460. 4 Blac. Com. 2.
note (n)) that some of the reasons why (m) Rex v. Fulwood, Cro. Car. 488. the woman was sworn and gave eviAnte, 570, 571. It is said, however, in dence were, that there was no cobabiI Hale 660,that the words ed intentione tation, and that there was concurring ad ipsam maritandam are usually add- evidence to prove the whole fact: but ed in indictments upon this statute, that if she had freely, and without and tbat it is safest so to do.
constraint, lived with the person who (n) Fullwood's case, Cro. Car. 488. married her for any considerable time, Brown's case, I Ventr. 243. Swend- her examination in evidence might be sen's case, 5 St. Tri, 456,
Of the evidence of the woman when taken away, and married.
and M. c. 8.
vantage of his own wrong, and that the very act of marriage, which is a principal ingredient of his crime, should (by a forced construction of law) 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 seem to be any good ground upon which her competency can be objected to, though she may have given her subsequent assent.(r) It also appears to have been ruled upon debate, in a modern case, that a wife is a competent witness for, as well as against, her husband, on the trial of an indictment for this offence, although she has cohabited with him from the day of her marriage.(8)
The statute 4 and 5 Ph. and M. c. 8. makes provision for the Statute 4 and punishment of an offence of the same kind as that which we have 5 Ph. & M. been considering upon the statute of Hen. 7., but inferior in degree, and differing also in this, that the taking away of the woman need not be attended with force.
The second section of this statute enacts, “ that it shall not be 4 and 5 Ph. “ lawful to any person or persons to take or convey away, or
s. 2 prohibits cause to be taken or conveyed away, any maid, or woman child the taking “ unmarried, being under the age of sixteen years, out of or from away a maid “ the possession, custody, or governance, and against the will of under sixteen “ the father of such maid or woman child, or of such person or the custody
persons to whom the father of such maid or woman child, by of the father “ his last will and testament, or by any other act in his lifetime,
or guardian. “ hath or shall appoint, assign, bequeath, give, or grant the order, “ keeping, education, or governance of such maid or woman child,
except such taking and conveying away as shall be had, made,
or done, by or for such person or persons, as without fraud or “ covin be, or then shall be, the master or mistress of such maid
or woman child, or the guardian in socage, or guardian in chivalry, of or to such maid or woman child."
The third section of the same statute enacts, “ that if any per- 4 and 5 Ph. "son or persons above the age of fourteen years, shall unlawfully and M. c.8.
s. 3. any per“ take or convey, or cause to be taken or conveyed, any
son taking woman child unmarried, being within the age of sixteen years, away a maid “ out of or from the possession, and against the will of, the father under 16 from
or mother of such child, or out of or from the possession and of the father “ against the will of such person or persons as then shall happen or mother, or "to have, by any lawful ways or means, the order, keeping, edu- guardian, to “ cation, or governance of any such maiden or woman child ; that for two years, “ then every such person and persons so offending, being thereof or fined. “ lawfully attainted or convicted by the order and due course " of the laws of this realm, (other than such of whom such person “ taken away shall hold any lands or tenements by knight's ser“ vice) shall have and suffer imprisonment of his or their bodies,
space of two whole years, without bail or mainprise, or “ else shall pay such fine for his or their said offence, as shall be
(9) 4 Blac. Com. 209.
settled, that in all cases of personal (r) I East. P. C. c. 11. s.5. p. 454. 'injuries committed by the husband
(8) Perry's case, Brislol, 1794. 1 or wife against each other, the iuHawk. P. C. c. 41, s. 13.; and in 1 East. jured party is an admissible witness P. C. c. 11. s. 5. p. 455. the learned against the other.” And see posla author says,
I conceive it to be now Book on Evidence. VOL. I.
and M. c.8.
assessed by the council of the queen's highness, her heirs or
successors, in the star chamber at Westminster.” 4 and 5 Ph.
The fourth section further enacts, “ that if any person or per
sons shall so take away, or cause to be taken away, as is afores. 4. any person so taking
" said, and deflower any such maid or woman child as is aforesaid, away and de
“ or shall against the will, or unknowing of or to the father of any flowering any “ such maid or woman child, if the father be in life, or against the such maid, or against the
“ will, or unknowing of the mother of any such maid or woman will or know- “ child (having the custody or governance of such child, if the ledge of the
“ father be dead) by secret letters, messages, or otherwise confather, &c. contracting
“ tract matrimony with any such maiden or woman child, except matrimony “such contracts of matrimony as shall be made by the consent of with any such “ such person or persons, as by the title of wardship shall then maid, to be imprisoned
“ have, or be entitled to have, the marriage of such maid or woman for five years,
“ child; that then every such person or persons so offending, or pay a fine.
being thereof lawfully convicted as is aforesaid, shall suffer im“ prisonment of his or their bodies, by the space of five years, “ without bail or mainprise, or else shall pay such fine for his or “ their said offence, as shall be assessed by the said council in the “ said star chamber; the one moiety of all which forfeitures and “ fines shall be to the king and queen's majesties, her heirs and
successors, the other moiety to the parties grieved."
It has been decided, that the taking away a natural daughter, the construc- under sixteen
age, from the care and custody of her putation of this
tive father, is an offence within this statute.(t) It has also been statute.
holden that a mother retains her authority, notwithstanding her marriage to a second husband; and that the assent of the second husband is not material.(u) In the last case it was also ruled, that the fourth section of the statute extends only to the custody of the father, or to that of the mother where the father has not disposed of the custody of the child to others. (v) In a case where a widow, fearing that her daughter, who was a rich heiress, might be seduced into an improvident marriage, placed her under the care of a female friend, who sent for her son from abroad, and married him openly in the church, and during canonical hours, to the heiress, before she had attained the age of sixteen, and without the consent of her mother, who was her guardian; it was holden that in order to bring the offence within the statute, it must appear that some artifice was used; that the elopement was secret; and that the marriage was to the disparagement of the family.(w) But upon this case it has been remarked, that no stress appears to have been laid upon the circumstance of the mother having placed the child under the care of the friend, by whose procurance the marriage was effected; and that it deserves good consideration before it is decided, that an offender, acting in collusion with one who has the temporary custody of another's child, for a special purpose, and knowing that the parent or guardian did not consent, is not within the statute; for that then every schoolmistress might dispose, in the same manner, of the children
(1) Rex v. Cornforth, 2 Str. 1162. I Hawk. P. C. c. 41. S. 14. Rex v. Sweeting, 1 East. P. C. c. 11. s. 6.
(u) Ratcliffe's case, 3 Co. 39.
(w) Hicks v. Gore, 3 Mod. 84. I Hawk, P. C. c. 41. s. 11.
committed to her care.(x) It has been said, that there must be a continued refusal of the parent or guardian ; and that if they once agree it is an assent within the statute, notwithstanding any subsequent dissent:(y) but this was not the point in judgment; and it has been observed, that it wants further confirmation.(z)
It seems that it is no legal excuse for this offence that the defendant, being related to the lady's father, and frequently invited to the house, made use of no other seduction than the common blandishments of a lover, to induce the lady secretly to elope and marry him, if it appear that the father intended to marry her to another person, and so that the taking was against his consent.(a)
Though the statute only gives authority to the star-chamber of the proand justices of assize, to hear and determine the offences men- ceedings upon
this statute. tioned in it, yet it is settled that an information or indictment will lie thereon in the court of King's Bench; for, as there are no negative words, the jurisdiction of that court is not excluded. (0) It seems also that an information by the master of the crown office will lie for this offence, as at common law; as the statute does not create any new offence, but only aggravates the punishment. (c) It is agreed that an indictment will lie by the rule of the common law, upon the general prohibitory clause contained in the second section of the statute, on the ground that where a thing is prohibited to be done by statute, and a penalty annexed to it by a separate substantive clause, the prosecutor is not bound to pursue the latter, but may indict on the prior general clause, as for a misdemeanor.(d) And the prohibition being general, the want of a corrupt motive is no answer to the criminal charge. (e) It seems that if an indictment or information upon this statute state, that the defendant “ being above the age of fourteen years, took one A., “ then being a virgin unmarried, possessed of moveable goods, and “seised of lands of great value, out of the custody of her mother, “ &c.” the word, being is a sufficient averment of the facts which follow.(f)
The sixth section of the statute provides, that a female above 4 & 5 Ph. & M. the age of twelve, and under sixteen, consenting to a contract of c. 8. s. 6. The matrimony, contrary to the statute, shall forfeit all her lands to senting to an her next of kin, during the life of her husband : so that as these unlawful constolen marriages, under the age of sixteen, were usually upon mer
tract, forfeits cenary views, the statute, besides punishing the seducer, wisely during her removed the temptation.
husband's life. Many of the provisions of the Marriage Act, 4 Geo. 4. c. 76., 4 G. 4. c. 76. have been already stated.(h) The twenty-first section of the sta- s. 21. Persons
solcmnizing (x) 1 East. P. C. c. 11. s. 6. p. 457. (c) 1 Hawk. P. C. C. 41. s. 8. But (y) Calthorpe v. Axtell, 3 Mod. 169. qu. how far this is an offence at com(2) 1 East. P. C. c. 11. s. 6. p. 457. mon law, and see ante, 569.
(a) Rex v. Twisleton and others, 1 (d) Moor's case, 2 Mod. 130. 1 East. Lev. 257. S.C. 1 Sid. 387. 2 Keb. 32. P. C. c. 11. s. 9. p. 459. See the prin1 Hawk. P. C. c. 41. s. 10.
ciple stated ante, 47. () 1 Hawk. P. C. c. 41. s. 7. The (e) i East. ibid. court of Star-chamber was dissolved (f) Rex v. Moor, 2 Lev. 179. S. P. by 16 Car. 1. c. 10. s. 3. Jurisdiction Rex v. Boyal, 2 Burr. 832. 1 Hawk. is given to the justices of assize by 4 P.C. c. 41. s. 9. & 5 Ph. & M. c. 5, 8, 5.
(h) Ante, 194, et sequ.
matrimony in tute provides for the punishment of such persons as shall unduly
solemnize matrimony in improper places, without publication of place than a church, &c. banns, or a proper licence of marriage; or shall solemnize matrior at an im
mony falsely pretending to be in holy orders. It enacts, “ that if proper timne, or without
any person shall after the first day of November, 1823, solemnize banns or li
“ matrimony in any other place than a church or such public chapel cence, or not “ wherein banns may be lawfully published, or at any other time being in holy
“than between the hours of eight and twelve in the forenoon, unless orders, to be guilty of by special licence from the Archbishop of Canterbury; or shall felony, and “ solemnize matrimony without due publication of banns, unless transported
“ licence of marriage be first had and obtained from some person years.
“ or persons having authority to grant the same; or if any person “ falsely pretending to be in holy orders, shall solemnize matri
mony 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 for the space of fourteen years,
according to the laws in force for transportation of felons : pro“ vided that all prosecutions for such felony shall be commenced “ within the space of three years after the offence committed." The act does not extend to the marriages of any of the royal family;(i) nor to any marriages amongst Quakers or Jews, where both the parties, to any such marriage, shall be Quakers or Jews.(a) And it extends only to that part of the united kingdom
called England.(k) 12 G.3. c. 11. The statute 12 Geo. 3. c. 11. confirms the prerogative of the Marriages of the royal fa
crown to superintend and approve of the marriages of the royal mily not to family:(?). The first section enacts, “ that no descendant of the be had with- “ body of King George the Second, male or female (other than the out the consent of the “ issue of princesses
who have married, or may hereafter marry, king, &c. “ into foreign families) shall be capable of contracting matrimony
“ without the previous consent of his majesty, his heirs or suc
cessors, 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 licence 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, with
out such consent first had and obtained, shall be null and void Except under
“to all intents and purposes whatsoever.” Provision is then made particular cir- for a marriage, without the royal consent, of any such descendcumstances.
ant, 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 And persons
declare their disapprobation of the marriage.(m) The third secsolemnizing tion of the statute enacts, or assisting at
“ that every person who shall knowmarriages
“ ingly or wilfully presume to solemnize, or to assist, or to be without the
present at the celebration of any marriage, with any such deconsent, where such
“scendant, or at his or her making any matrimonial contract, consent is ne
without such consent as aforesaid first had and obtained, except cessary, incur “ in the case above mentioned, shall, being duly convicted thereof, a præmunire. (i) S. 30.
provisions of this act, ante 194, el sequ. (m) S. 32.
(1) i East. P. C. c. 13. s. 7. p. 478. (K) S. 33. And see further as to the (m) S. 2.