quarter-sessions take security of the persons employed for the preservation of the counties from theft and rapine, to answer the damages sustained by their neglect, and to pay the same within four months after proof thereof made by oath of one witness at the next quarter-sessions, so as the goods stolen be entered in the books within forty-eight hours after the same shall be gone; and books shall be kept for that end in every market.town, and at such other places as the sessions shall appoint. s. 2.

And the said justices of peace are further empowered to issue their warrants.for the levying any sums ordered to be paid for the securing of the said counties, and to give power to the constables and other officers to collect the money by distress and sale of goods; and the said justices, or any one of them, are authorised to examine any complaint against the collectors, or any other refractory persons, that shall fail to give obedience to this act, and to bind over such persons to the next quartersessions. 13 & 14 Car. 2. c. 22. s. 3.

And the justices of peace are further empowered to appoint a treasurer to receive the monies collected, and to pay over the same according to the orders from the sessions; and the justices are empowered to agree with such person yearly, and to take security of him. s. 4.

And in case any person shall be employed in the border-service, and shall wilfully and corruptly forbear to discover or apprehend any of the moss-troopers, and shall be convicted thereof, they shall be made incapable of the said employment, and suffer fine and imprisonment, as the sessions shall think fit.

8. 5.

And every person employed for the preservation of the said. counties, or as treasurer, shall receive the sacrament within three months, and deliver a certificate thereof to the next quarter-sessions, and take the oaths of allegiance and supremacy, and make and subscribe the declaration, under the penalties appointed. 29 & 30 Lar. 2. c. 1. s. 4.

Also by 18 Car. 2. c 3, made a public act by 6 Geo. 2. c. 37. s. 9. and perpetual by 31 Geo. 2. c. 42. s. 1, The benefit of clergy shall be taken away from great, known, and notorious thieves and spoil-takers in Northumberland or Cumberland, who shall be convicted for theft done within the said counties; or it shall be lawful for the justices of assize, and oyer and terminer, or gaol-delivery, to transport them into any of his majesty's dominions in America, not to return. s. 2.

PAPISTS.It is enacted by 27 Eliz. c. 2. s. 4, That whoever shall wittingly and willingly receive, relieve, comfort, aid or maintain any jesuit, seminary, or other priest, deacon, or religious or ecclesiastical person, ordained by authority derived VOL. II.

Ee

Assaulting.

them.

from the see of Rome, shall be guilty of felony without beneat of clergy.

And by 35 Eliz. c. 1, All persons convicted under that act of obstinately refusing to come to church, and not conforming within three months, being required by the bishop of the diocese, or any justice of peace, or by the minister or curate of the parish, shall, upon oath before the justices, in the quarter sessions, or at the assizes and gaol delivery, abjure this realm for ever, and thereupon depart from such port as shall be assigned by the justices; and if any such offender refuse to make abju. ration, or go not to such port as is appointed and from thence depart, or shall return without the licence of the shall be adjudged a felon without benefit of clergy. s. 3, 4.

crown,

he

But such protestant dissenters as take the oaths and make the declaration prescribed by 1 Will, & Mar. c. 18. (see title DisSENTERS) are exempted from all prosecutions under the above act.

And by 31 Geo. 3. c. 22. s. 4, No person who shall take the oath therein prescribed, (see title PAPISTS) shall be presented, indicted, sued, impeached, prosecuted, or convicted, for being a papist or reputed papist, or for not resorting to church, or for being present at, or performing or observing any rite, &c. or maintaining or assisting others therein. s, 3, 4.

PERJURY.]-Persons convicted of wilful and corrupt perju ry, escaping, breaking prison, or returning from transportation, 2 Geo. 2. 8. 25. s. 2.-See the general title PERJURY.

Taking a false oath, or procuring any other to take a false oath, in order to obtain any summons, probate or letters of ad ministration, 31 Geo. 2. c. 10. s. 24.-See (Forgeries excluded clergy, 10.) and general title PERJURY.

PETIT TREASON.-See the general title HOMICIDE.
PICK-POCKET.-See (Larcenies excluded clergy, 1.)
PIRACY.-See the general title PIRACY.

PLAGUE. See the general title PLAGUE.

POISONING. See the general title HOMICIDE.

POST-OFFICE.-See (Larcenies excluded clergy, 10.)
PRIVATELY STEALING.-See (Larcenies excluded clergy, 1,3.)

PRIVY COUNCILLORS.]-By 9 Ann. c. 16, If any person shall unlawfully attempt to kill, or shall unlawfully assault strike, or wound, any one of the most honourable privy council, when in the execution of his office of a privy councillor in council, or in any committee of council, such offender shall suffer death without benefit of clergy. s. 1,

QUARANTINE.For the offences respecting quarantine made felonies by stat. 45 Geo. 3. c. 10. See general title PLAGUE.

RAPE.-It seems that rape is an offence in having unlawful What it is. and carnal knowledge of a woman, by force and against her will. 1 Hawk. c. 41. s. 1. 1 Hale's Hist. 628. 2 Inst. 180.

And it said, that of old time it was felony, and consequently How panishpunishable with death; but that this being afterwards thought able. too hard, the punishment was changed from death, to the loss of those members whereby they offended; that is to say, to castration and loss of eyes. 2 Inst. 180. 4 Bluck, Com. 511. 1 Hawk. c. 41. s. 7.

In the 3 Ed. 1, it was however, by stat. West. I. c. 13, reduced to a trespass only, which being productive of the most terrible consequences, it was in ten years afterwards (13 Ed. 1.) found necessary to make the offence of forcible rape felony by stat. Westm. 2. c. 34; and by 18 Eliz. c. 7. it is enacted, That if any person shall commit any felonious rape, or ravishment, and be found guilty by verdict, or shall be outlawed, or confess the same, such person shall suffer death without benefit of clergy.

And further, That if any person shall unlawfully and carnally know and abuse any woman child, under the age of ten years, he shall suffer as a felon without benefit of clergy. s. 4.

And upon an indictment for this offence it is no way material whether such child consented, or were forced, for by reason of her tender years, she is incapable of judgment and discretion. 1 Hack. c. 41. s. 5. 4 Black. Com. 212.

And by 13 Ric. 2. st. 2. c. 1, No pardon shall be allowed for rape of a woman, unless the same rape be specified in the

charter.

It seems, according to Hale and Hawkins, that all who are Principals and present and actually assist a man to commit a rape, may be in- accessaries, dicted as principal offenders*, whether they be men or women, and that they are ousted of clergy in like manner as principals in the first degree. 1 Hawk. c. 41. s. 6. 1 Hale's. Hist. 628,

633.

But accessaries before and after have their clergy. 1 Hale's Hist. 633.

But it is said, that no assault upon a woman in order to ravish What will her, howsoever shamefully and outrageous it may be, if it proceed amount to a not to some degree of penetration, and also of emission, can rape. amount to a rapet. 1 Hawk. c. 41. s. 1.

In the second degree.

+ In such cases therefore it is usual to prosecute the party by indicting him for an assault, with intent to commit a rape; and the following is the form of such indictment:

Monmonthshire?

The jurors for our lord the king upon their oath present, that
in the county of

to wit. joo, late of the parish of

on

Who may be guity of the felony.

Upon whom it

may be commutted.

However it is said, that emission is, prima facie, an evidence of penetration. 1 Hawk. c. 41. s. 1.

A male infant, under the age of fourteen years, is presumed by law incapable to commit a rape, and therefore it seems cannot be guilty of it; for though in other felonies malitia supplet atat m in some cases. yet it seems as to this fact the law presumes him in potent, as well as wanting discretion. 1 Hale's Hist. 730.

But he may be a principal in the second degree, as aiding and assisting, though under fourteen years, if it appear by sufficient circumstances that he had a mischievous discretion, as well as in other felonies. 1 Hale's Hist. 730.

Offences of this nature are not any way mitigated, by shewing that the woman at last yielded to the violence, if such her con sent was forced by fear of death, or of duress. 1 Hawk. c. 41,

8. 2.

Nor is it any excuse, that she consented after the fact, for the previous violence is no way extenuated by such a subsequent consent *. 1 Hawk. c. 41 s. 2.

Neither is it any excuse, that the woman is a common strum. pet; for she is still under the protection of the law, and may not be forced. 1 Hawk. c. 41. s. 2.

Besides, the woman may forsake that unlawful course of life, and 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. 1 Hale's Hist. 629. 4 Black. Com. 213.

It seems also to have been the opinion of ancient writers, viz. Britton, Finch, Stumford, and Dalton, that it could be no

the
day of
in the
-year of the reign of our said sovereign lord
George the Third, king of Great Britain, &c. with force and arms, at the parish
aforesaid, in the county aforesaid, in and upon one PR, spnster [if it be upon
a child under the age of ten years, in this place add the words following, an
infant under the age of ten years, to wit, of the age of yea] in the peace

of God and our said lord the king then and there being, d d make an assault; and
her the said P R then and there did beat, wound, and ill treat, so that her life wat
greatly despaired of, with an intent ner the sud PR, against her will, then and
there feloniously to ravish and carnally know; [rit it be an infant under
the age of ten years, ont the words against her will and what follows, and
instead thereof say unlawfully and feloniously carnally to know and abuse]
and other wrongs to the said PR then and there did, to the great damage of
the said PR, and against the peace of our said lord the king, his crown and
dignity. Here it may be proper to add another count for a common as
sault, if the intent was not perfectly plain; proceeding, and the jurors
aforesaid, upon their oath aforesaid, do further present, &c. according to the
form in Vol. i. p. 221.

And it is enacted by 6 Ric. 2. c. 6, That when women be ravished, and after consent to such ravishers, as well the ravishers as they that be ravish ed shall be disabled to have any heritage, dower, or joint feoffment, after the death of their husbands and ancestors; and the next of the blood of

rape, if the woman conceived with child, because if she had not consented, she could not have conceived; but this, according to Hale and Hawkins, is not law at this day*. 1 Hale's Ilist. 731. 1 Hawk. c. 41. s. 2

But the husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract, the wife hath given up herself in this kind unto her husband, which she cannot retract. 1 Hale's Hist. 629.

Nevertheless if the husband intends to prostitute his wife to a rape by another, against her will, and such person doth accordingly ravish her, the husband being present, and assisting to this rape in this case it hath been resolved, 1st. That it is a rape in the party, notwithstanding the husband as-isted in it, for though in marriage she hath given up her body to her husband, she is not to be by him prostituted to another. 2dly, That the husband being present, aiding and assisting, is guilty as a principal in rape, and therefore, although the wife cannot have an appeal of rape against her husband, yet he is indictable for it at the king's suit as a principal. 3dly, That in this case the wife may be a witness against her husband. 1 Hale's Hist. 629.

The party ravished may give evidence upon oath, and is in As to evi lenco law a competent witness; but the credibility of her testimony, of a rape. and how far forth she is to be believed, must be left to the jury,

and is more or less credible, according to the circumstances of fact that concur in that testimony. 1 Hale's Hist: 633.

For instance, if the witness be of good fame, if she presently discovered the offence and made pursuit after the offender, shewed circumstances and signs of the injury, whereof many are of that nature that only women are the most proper exa. miners and inspectors, if the place wherein the fact was done was remote from people, inhabitants or passengers, if the offender fled for it; these and the like are concurring evi dences to give greater probability to her testimony, when proved by others as well as herself. 1 Hale's Hist. 633.

But, on the other side, if she be of evil fame, and stand unsupported by others; if she concealed the injury for any con siderable time after she had opportunity to complain; if the place where the fact was supposed to be committed were near to inhabitants, or common recourse or passage of passengers,

those ravishers, or of them that be ravished, shall have title by the rape to enter. And the husbands of such women, or if they have no husbands, then the fathers, or other next of blood, shall have the suit against the ravishers, and have them thereof convict of life and of member, although the woman after such rape do consent: and the defendant shall not be received to wage battle, but the truth shall be tried by inquisition of the country; saving to the king and other lords their escheats.

Mulier enim vi oppressa concipere potest. 1 Hale's Hist, 731,