her story is fictitious: 1 Hale, 633. 4 Bla. Com. 213. but [*813] the rule respecting* the time that elapses before the prosecutrix complains will not apply where there is a good reason for the delay, as that she was under the control, or influenced by fear of her ravisher. 1 East, P. A. 445. And so all other general rules, as they are deduced from circumstances, must yield to such as render them unsafe guides to the discovery of truth. It was once thought that where the woman conceived on the occasion, no rape could be committed; but this idea is now exploded, as being countenanced neither by reason nor justice. Hawk. b. 1. c. 41. s. 8.

What wit

compe

tent.

The party grieved is, in all cases, a competent witness, nesses are though as we have seen, the jury are to judge of the credit due to her evidence. 1 Hale, 633. And even where the husband is charged with aiding a rape on his wife, she, contrary to the general principle, may be examined as a witness against him; 1 Harg. St. Tr. 388. 1 Hale, 629. and the depositions of the female, taken before a magistrate, may be read in evidence after her death, though not authenticated by her signature. 2 Leach, 854.

Punish

ment.

Punishment. Rape is considered by Lord Hale as having been made felony by statute: 1 Hale, 631, 2. but this is expressly contradicted by Lord Coke, who enters learnedly into the ancient law respecting this offence, in a statement which can leave little doubt that he is correct in his opinion. 2 Inst. 180. According to him, who is followed by Blackstone and Hawkins, it was anciently punished with death; a severity which coincides with the rules of the old Gothic and Scandinavian constitutions. 2 Inst. 180. Hawk. b. 1. c. 41. s. 11. The penalty was mitigated, or rather altered into a deprivation of sight as well as of the offending members by William the Conqueror, who probably brought the custom from Normandy. It seems however that the female on whom the injury was committed had it in her power to save her ravisher from this terrible sentence by accepting him as her husband. 2 Inst. 180. Hawk. b. 1. c. 41. s. 11. At length the offence was by the statute of Westminster, 3 Ed. 1. c. 13. reduced to a misdemeanor and punished only with two years imprisonment, and a fine at the king's pleasure. 2 Inst. 180. But this was found to be so great an encouragement to offenders, that it was again made felony by Westminter, 2. c. 34. and, at length, by 18 Eliz. c. 7. it was excluded from the benefit of clergy. The last act, however, applied only to such as were convicted by verdict, outlawry, or confession; but by 3 W. and M. c. 9. s. 2. those who stand mute, answer indirectly, or challenge peremptorily, more than twenty are reduced to the same condition. Principals in the second degree are included in these statutes; but as no mention is made of accessa

raies either before or after, they must still be admitted to [*814] clergy as in former periods. 1 Hale, 633.

II. On Children within the age of Consent.

fence.

Offence. It was anciently doubted whether a rape could be The of committed upon a child under ten years of age. 1 Hale, 630. Dyer, 304, a. And therefore by 18 Eliz. c. 7. s. 4. it is enacted" that if any person shall unlawfully and carnally know and abuse any woman child under the age of ten years, every such unlawful and carnal knowledge shall be felony without benefit of clergy." Under this act the consent or resistance of the infant is immaterial. Lord Hale intends that, at common law, all sexual intercourse with a child under twelve years, whether with or without her consent, is rape. He argues that twelve, and not ten, is the age of consent, at least to marriage; and that the statute of Westminster, 1. which reduced all rape to misdemeanor, refers to that period. 1 Hale, 631. At all events, if the deflowering an infant within the age of ten and twelve with her own consent be rape, it is but a misdemeanor still; for the statute of Westminster the second, which again made rape a felony, does not reach this case; and the 18 Eliz. c. 7. which excludes it from clergy, expressly relates only to children within ten years of age. It is therefore only within that age that a capital offence can be committed when the female assented to the crime. The carnal knowledge of infants under ten, seems rather to be a new felony created by a statute than a rape, to the definition of which last offence, force seems to be essential. 1 East, P. C. 436.

dictment.

The indictment must, in this case, conclude contrary to the The inform of the statute, for the offence itself depends on the act of Elizabeth as well as the penalty. 1 East, P. C. 448. And for the same reason it must follow the terms of the provision, and charge that the defendant feloniously, unlawfully, and carnally, knew and abused the party injured, being under the age of ten years, omitting the word ravished, which implies violence. íd. ibid.

Evidence. It seems to have been anciently thought that the Evidence, admissibility of children as witnesses depended on their age: and Lord Hale seems to think that though, if under nine or ten, they cannot be sworn, they may be examined without oath to give the court information, though such a statement, if uncorroborated, would never be sufficient to warrant a conviction. 1 Hale, 634, 5. But, in modern times, more rational principles have been admitted to prevail. The admissibility of testimony now depends not on the age, but on the understanding of the witness. Children of any age who* com- [*815]

prehend the nature of an oath, and are capable of feeling the obligations it imposes, may be admitted to give evidence. 1 Leach, 199, 430. ante 724. 1 vol. 590. And if an infant who is a material witness appears on examination by the court ignorant of the consequences of falsehood and the responsibility incurred by an appeal to heaven, the trial may be put off till the next assizes or sessions, and the judge may direct the child to be instructed by a clergyman in the interval. 1 Leach, 430. in notis. On the other hand, if the party is not fit to be sworn, he is equally unfit to be examined for any purpose on a trial; 1 Leach, 110, 199. for nothing can be received in evidence, in criminal cases, but that which is given on oath; and nothing but evidence ought to influence the decision of the jury.

Indict

rape. (1)

INDICTMENTS FOR RAPE OF WOMEN, ABOVE
THE AGE OF CONSENT.

That A. O. late of, &c. not having the fear of God before ment for a his eyes, but being moved and seduced by the instigation of the devil, on, &c. with force and arms, at, &c. in and upon one A. J. spinster, in the peace of God and our said lord the king then and there being, violently and feloniously, did make and assault, and her the said A. J. against the will of her the said A. J. (m) then and there feloniously (n) did ravish, (0) and carnally know, (p) against the form of the statute in such case made and provided, (q) and against the peace of our said lord the king, his crown and dignity.

For carnally knowing and abusing a fe

male child under the age of ten

years. (r)

INDICTMENTS FOR RAPE OF CHILDREN WITH-
IN THE AGE OF CONSENT.

That A. B. late of, &c. on, &c. at, &c. in and upon one E. P. spinster, a woman (s) child under the age of ten years, to

(1) See other precedents, Burn J. Rape. Cro. C. C. 401. Starkie, 409. West. Ent. 172. 174. 328. 6 Wentw. 368. Co. Ent. 358.

(m) See ante 810.

(n) This word is requisite, 1 Hale, 632 ante 811.

(0) This is necessary, 1 Hale, 632. ante 811, 2.

(p) It is certainly better to insert these words, though some have considered that they are not requisite,

see ante 812.

(q) This conclusion is proper though probably its omission would not be material, see ante 812.

(r) See other precedents Cro. C. C. 401. Starkie, 411. Old Form West. Ent. 173. see notes ante 814.

(s) Sometimes the words "woman child" are omitted, see Cro. C. C. 401. but it seems better to follow the words of the statute.

wit, of the age of nine years and upwards, in the peace of [*816] God and our said lord the king then and there being, feloniously did make an assault, and her the said E. P. then and there wickedly, unlawfully and feloniously, did carnally know and abuse, against the form, &c. and against the peace, &c.

INDICTMENTS FOR ASSAULTS WITH INTENT
TO RAVISH.

peace

an intent

to ravish

That T. M. late of, &c. on, &c. with force and arms, at, For mak&c. in and upon one M. M. spinster, in the of God and sault on a ing an asof our said lord the king then and there being, did make an single woassault, and her the said M. M. did then and there beat, man with bruise, wound, and illtreat, so that her life was then and there greatly despaired of, (u) with an intent her the said M. her. () M. against her will then and there feloniously to ravish and carnally know, and other wrongs to the said M. then and there, with force and arms, did to the great damage of the said M. M. and against the peace, &c [add another Count for a common assault as post 821.]

sault on a married

woman

commit a

rape.

That D. H. late of, &c. on, &c. at, &c. aforesaid, with force For an asand arms, made an assault upon one E. F. wife of one J. F. she the said E. F. in the peace of God and our said lord the king then and there being, with an intent then and there, vio- with inlently and feloniously, and against the will of the said E. F. tent to to ravish and carnally know her, and other wrongs to the said E. F. then and there did, to the great damage of the said E. F. and against the peace, &c. [Second Count for a common assault as post 821.] That* J. H. late of, &c. and A. R. late of, &c. on, &c. with Against force and arms, at, &c. aforesaid, in and upon E. the wife of one H. S. did make an assault, (she the said E. in the peace assaulting

(t) See other precedents, 4 Wentw. 73. Cro. C. C. 61. 6 Wentw. 394. Starkie, 386. Where the offence was not completed, or there seems no prospect of substantiating it by evidence, the defendant may be indicted at common law for an assault with intent to ravish. But care must be taken not to indict for the misdemeanor, when the evidence will prove the felony; for, if this should appear on the trial, the defendant must be acquitted, 1 East P. C. 411. Though the attempt is only a misdemeanor, it may be severely punished by fine, imprisonment, pillory, and the finding sure

[*817]

two per

sons for

a married

woman

ties for good behaviour. In one in- with an in-
stance the latter were required for tent that
life. Cro. Car. 332; but Mr. East one of
justly observes, that this punish- them
ment is not consonent with the should ra-
practice of our present constitution, vish her.
in the apportionment of discretion- (w)
ary punishment, as it tends to im-
prisonment for life, 1 East, P. C.
441.

(u) The words "bruise and
wound, &c. so that her life, &c."
should be omitted when contrary to
the facts.

(w) See similar precedents, Cro. C. C. 164. 7 Ed. Starkie, 386.

For an as

infant un

der ten

of God and our said lord the king then and there being,) and her the said E. then and there did beat, wound and ill treat so that her life was greatly despaired of, with intent, that he the said J. H. should then and there feloniously, and against the will of the said E. ravish and carnally know her the said E. and other wrongs, &c. [Second count for a common assault as post 821.]

age

That A. B. late of, &c. on, &c. with force and arms, at, &c. sault on an aforesaid, in and upon one A. W. a female child under the of ten years, to wit, of the age of nine years, and in the years of peace of God and our said lord the king then and there beage with ing, did make an assault, and her the said A. W. then and intent car- there did beat, wound and illtreat, so that her life was greatly nally to know her, despaired of, with an intent her the said A. then and there, unlawfully and feloniously, carnally to know and abuse, and other wrongs, &c. [Second count for a common assault as post 821.]

(x)

INDICTMENT FOR FORCIBLE ABDUCTION OF
WOMEN.

For felony That A. B. late of, &c. on, &c. at, &c. in and upon one M. in taking a W. spinster, then and yet being under the age of fourteen

woman

having substance, &c. against her will, under the stat. 3 H.

7. c. 2. (y)

(x) See a similar precedent, Cro. C. C. 61

(y) See other precedents, Cro. C. C. 475. Trem. P. C. 34. Pla. Cor. 174. West. 224. Ra. Ent. 487. Starkie, 410. and see the indictment on which Sweenden and his assistants were convicted for carrying away Miss Rawlins, and the proceed ings thereon, 5 Harg. St. Tr. 465

As to the offence in general, see 1 Hale, 659 to 662. Hawk. b. 1. c. 41. 4 Bla. Com. 208, 9. 1 East P. C. 452 to 455. The 3 Hen. VII. c. 2. after reciting, that "where women, as well maidens as widows and wives, having substances, some in goods moveable, and some in lands and tenements, and some being heirs apparent unto their ancestors, for the lucre of such substances have been oftentimes taken by misdoers, contrary to their will, and after married to such misdoers, or to other by their assent, or defiled, to the great displeasure of Almighty God, and con

trary to the king's laws, and disparagements of the said women, and utter heaviness and discomfort of their friends, and to the evil ensample of all other;" proceeds to enact, "That what person or persons from henceforth that taketh any woman so against her will unlawfully, that is to say, maid, widow, or wife, that such taking, procuring, and abetting to the same, and also receiv ing wittingly the same woman so taken against her will, and knowing the same, be felony; and that such misdoers, takers, and procurators to the same, and recitors knowing the said offence in form aforesaid, be henceforth reputed and adjudged as principal felons; provided always, that this act extend not to any person taking any woman, only claiming her as his ward or bond-woman.' The 39 Eliz. c. 9. s. 1. takes away clergy from persons who offend against this statute.

To constitute an offence under