should not be proved to have been quick with child, it was a felony punishable with transportation. But by a later statute the nature of the offence and the degree of punishment were made no longer to turn on the fact of being quick with child, but in all cases penal servitude for life might be awarded (k). This offence is now provided against by 24 & 25 Vict. c. 100, s. 58; which awards the term of penal servitude for life, or for a term not less than three years,-or imprisonment (with or without hard labour and solitary confinement) for a term not exceeding two years, to any woman, being with child, who with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or use any instrument or other means with the like intent; or to any person who, with a similar intent, shall unlawfully administer to any woman, (whether she be with child or not,) or cause to be taken by her any poison or other noxious thing, or use any instrument or other means with intent to procure her miscarriage; and all such practices are declared to be felonies. And further, it is provided that whosoever shall supply or procure any such poison, thing or instrument, knowing that the same is intended to be unlawfully used or employed to procure the miscarriage of any woman, whether with child or not, shall be guilty of a misdemeanor, and punishable with penal servitude for three years, or imprisonment, with or without hard labour, not exceeding two years (l). V. Another offence immediately affecting the personal security of individuals, is that of the abduction of females. One species of this offence, [vulgarly called stealing an heiress,]-viz. carrying off any woman against her will, "having substance in goods or lands, or being heir apparent to her ancestor," (the same being followed by her marriage or defilement),-was made a capital felony by the (k) See 7 Will. 4 & 1 Vict. c. 85, s. 6, repealed by 24 & 25 Vict. c. 95. (1) 24 & 25 Vict. c. 100, s. 59. statutes 3 Hen. VII. c. 2, and 39 Eliz. c. 9. And by statute 4 & 5 Ph. & M. c. 8, it was also an offence punishable with fine and imprisonment, for any person above the age of fourteen years to carry off any woman child, (unmarried and within the age of sixteen years,) from the possession, and against the will, of her father, mother, guardians or governors; and in case of her defilement or marriage with him, her lands were also to be forfeited to her next of kin during the life of her seducer (i). But all these statutes are long since repealed: and the existing provision is contained in 24 & 25 Vict. c. 100; the 53rd section of which enacts, that where any woman of any age shall have any interest, (whether legal or equitable, present or future, absolute, conditional or contingent,) in any real or personal estate, or shall be an heiress presumptive, or coheiress, or presumptive next of kin, to any one having such interest,-it shall be felony in any person who shall, from motives of lucre (j), take away or detain her against her will, with intent to marry or carnally know her; or who shall cause her to be married or carnally known by any other person-or who (with a like intent) shall fraudulently allure, take away or detain any such woman under the age of twenty-one, out of the possession and against the will of of her father or mother, or other person having the lawful care or charge of her; and the offender (in any of the above cases) is punishable by penal servitude for fourteen years, or not less than three, or by imprisonment with or without hard labour, not exceeding two years: and shall, moreover, be incapable of taking any of the estate, interest or property of such woman; which (if marriage has taken place) shall be settled in such manner as the Court of Chancery shall appoint. And the same punishments are awarded, to whom (i) As to the forfeiture of the property of the woman, in the case of a marriage between persons, either of whom is under age, by licence or banns procured by the false oath or fraud of one of the parties, vide sup. vol. 11. pp. 264, 272. (j) As to what is evidence of motives of lucre, see R. v. Barratt, 9 Car. & P. 387. soever shall by force take away or detain against her will any woman of any age, with a similar intent (k). While unlawfully to take or cause to be taken out of the possession and against the will of her parents or guardian, though no such intent as above mentioned can be shown, any unmarried girl under the age of sixteen, is a misdemeanor, punishable with imprisonment to the extent of two years, with or without hard labour (1). VI. Another [offence, also against the female part of the subjects of the realm, but attended with greater aggravations than that of forcible marriage, is the crime of rape, raptus mulierum, or the carnal knowledge of a woman forcibly and] against her consent (m). [This, by the Jewish law, was punished with death, in case the damsel was betrothed to another man: and in case she was not betrothed, then a heavy fine of fifty shekels was to be paid to the damsel's father; and she was to be the wife of the ravisher all the days of his life, without that power of divorce which was in general permitted by the Mosaic law (n). The civil law punishes the crime of ravishment with death and confiscation of goods; under which it includes both the offence of forcible abduction or taking away a woman from her friends, of which we last spoke, and also the present offence of forcibly dishonouring them; either of which, without the other, is in that law sufficient to constitute a capital crime (o) Also the stealing away a woman from her parents or guardians, and debauching her, is equally penal by the emperor's edict, whether she consent (k) 24 & 25 Vict. c. 100, s. 54. (1) 24 & 25 Vict. c. 100, s. 55. See R. v. Meadows, 1 Car. & Kir. 399; R. v. Robins, ib. 456; Manklelow's case, I Dearsley's C. C. R. 159; Reg. v. Timmins, 9 W. R. (C. C. R.) 56. It may be remarked that in these cases, the girl's consent is immaterial. (m) The Queen v. Fletcher, 28 L. J. (M. C.) 85. Blackstone's expression (vol. iv. p. 210), is "against her will." But the above case shows that the definition of this crime given in the text, is the proper one. (n) Deut. xxii. 25. [or is forced; "sive volentibus, sive nolentibus mulieribus, tale facinus fuerit perpetratum." And this, in order to take away from women every opportunity of offending in this way; whom the Roman law supposes never to go astray without the seduction and arts of the other sex; and therefore, by restraining and making so highly penal the solicitations of the men, they meant to secure effectually the honour of the women. "Si enim ipsi raptores metu, vel atrocitate pœnæ, ab hujusmodi facinore se temperaverint, nulli mulieri, sive volenti, sive nolenti, peccandi locus relinquetur; quia hoc ipsum velle mulierum, ab insidiis nequissimi hominis, qui meditatur rapinam, inducitur. Nisi etenim eam solicitaverit, nisi odiosis artibus circumvenerit, non faciet eam velle in tantum dedecus sese prodere." But our English law does not entertain quite such sublime ideas of the honour of either sex, as to lay the blame of a mutual fault upon one of the transgressors only; and therefore makes it a necessary ingredient, in the crime of rape, that it must be against the woman's consent. Rape was punished by the Saxon laws, (particularly those of king Athelstan,) with death (p); which was also agreeable to the old Gothic or Scandinavian constitution (q). But this was afterwards thought too hard; and in its stead another severe, but not capital, punishment, was inflicted by William the Conqueror; viz., castration and loss of eyes (r); which continued till after Bracton wrote, in the reign of Henry the third. But in order to prevent malicious accusations, it was then the law (s), that the woman should, immediately after, "dum recens fuerit maleficium," go to the next town; and there make discovery to some credible persons of the injury she has suffered; and, afterwards, should acquaint the high constable of the hundred, the coroners, and the sheriff, with the outrage (t). This (p) Bracton, 1. iii. c. 28. (q) Stiernh. de Jure Sueon. 1. iii. c. 2. (r) LL. Guil. Conqu. c. 19. (s) The law is so laid down by Hale, in respect of appeals of rape in his time. (1 Hale, P. C. 632.) As to appeals (a mode of prosecution now abolished), vide post, c. XVIII. (t) Glany, 1. xiv. c. 6; Bract. 1. iii. c. 28. [seems to correspond in some degree with the laws of Scotland and Arragon,] which, (as cited by Blackstone,) require [that complaint must be made within twenty-four hours; though afterwards the time of limitation, in England, was extended to forty days (u). At present there is no time of limitation fixed; for, as it is now punished by indictment at the suit of the Crown, the maxim of law takes place that nullum tempus occurrit regi; but the jury will rarely give credit to a stale complaint. During the former period, also, it was held for law (v), that the woman, by consent of the judge and her parents, might redeem the offender from the execution of his sentence, by accepting him for her husband,-if he also was willing to agree to the exchange, but not otherwise. In the third year of Edward the first, (by the statute Westm. 1, c. 13,) the punishment of rape was much mitigated: the offence itself of ravishing a damsel within age, that is, twelve years old, either with her consent or without, or of any other woman against her will, being reduced to a trespass, if not prosecuted by appeal within forty days; and subjecting the offender only to two years' imprisonment and a fine at the king's will. But this lenity being productive of the most terrible consequences, it was, in the thirteenth year of Edward the first, found necessary to make the offence of forcible rape, felony (x). And by statute 18 Eliz. c. 7, it was made felony without benefit of clergy.] All these enactments were afterwards repealed by 9 Geo. IV. c. 31; which however still made the offence a capital felony but by the provision now in force, every person convicted of the felonious crime of rape shall be liable to be kept in penal servitude for life, or for any term not less than three years, or to be imprisoned for any term not exceeding two years, with or without hard labour (y). [A male infant under the age of fourteen years, is pre (u) See 3 Ed. 1, c. 13. (v) Hawk. P. C. b. 1, c. 41, s. 7. (x) Stat. Westm. 2, c. 34. (y) 24 & 25 Vict. c. 100, s. 48. 9 Geo. 4, c. 31, was repealed by 24 & 25 Vict. c. 95. |