[be found guilty of it (o);-for though in other felonies malitia supplet ætatem, as in some cases has been shown, yet as to this particular species of felony, the law supposes an imbecility of body as well as mind (p).

The civil law seems to suppose a prostitute, or common harlot, incapable of any injuries of this kind (g); not allowing any punishment for violating the chastity of her who hath indeed no chastity at all, or at least hath no regard to it. But 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: and therefore holds it to be a felony to force even a concubine or harlot: because the woman may have forsaken that unlawful course of life (~); for, as Bracton well observes, " licet meretrix fuerit antea, certe tunc meretrix non fuit, cum reclamando nequitiæ ejus consentire noluit" (s).

As to the material facts requisite to be given in evidence and proved upon an indictment for rape, they are of such a nature, that though necessary to be known and settled for the conviction of the guilty and preservation of the innocent, and therefore to be found in such criminal treatises as discourse of these matters in detail,—their discussion here would not be desirable. We shall therefore merely add upon this head, a few remarks from Sir Matthew Hale, with regard to the competency and credibility of witnesses, which may, salvo pudore, be considered.

And, first, the party ravished may give evidence upon oath, and is in law a competent witness; but the credibility of her testimony, and how far she is to be believed, must be left to the jury upon the circumstances of fact that occur in that testimony. For instance, if the witness (p) 1 Hale, P. C. 631; vide sup.

(o) See R. v. Jordan, 9 Car. & P. 118. The law is the same in the case of an assault with intent to commit a rape. (R. v. Eldershaw, 3 Car. & P. 396.)

p. 23.

(4) Cod. 9, 9, 22; Ff. 47, 2, 39. (r) 1 Hale, P. C. 629; Hawk. P. C. b. 1, c. 41, s. 2.

(s) L. 3, c. 27.

[be of good fame; if she presently discovered the offence and made search for the offender; if the party accused fled for it;-these and the like are concurring circumstances, which give greater probability to her evidence. But on the other side, if she be of evil fame, and stand unsupported by others; if she concealed the injury for any considerable time after she had opportunity to complain; if the place where the fact was alleged to have been committed was where it was possible she might have been heard, and she made no outcry ;-these and the like circumstances carry a strong, but not conclusive, presumption that her testimony is false or feigned.] It is to be observed, that it has been held that she is not compellable, on her cross-examination, to answer the question whether she has not had previous connection with the prisoner or with other men (t); and if she does answer and replies in the negative, it seems that the accused is not at liberty to call persons to contradict her (u). But he is allowed, with the view of impugning her credibility, to produce proof that he had himself had connection with her before the alleged rape (x), or that her character for chastity or decency is notoriously bad (y).

[Moreover, if the rape be charged to be committed on a young child, she may still be a competent witness if she hath sense and understanding to know the nature and obligations of an oath, or even to be sensible of the wickedness of telling a deliberate lie. Nay, though she hath not, it was thought by Sir M. Hale that she ought to be heard without oath, to give the court information (3): and others have contended that what the child told her mother or other relations may be given in evidence, since the nature of the case admits frequently of no better proof. With regard to these matters, however, it is now settled that no

(t) See R. v. Hodson, R. & R. C. C. 211.

(u) See The Queen v. Holmes, Law Rep., 1 C. C. R. 334.

(x) R. v. Martin, 6 Car. & P. 562.

(y) Stark. Ev. 1269, 1270.

() 1 Hale, P. C. 634.

[hearsay evidence can be given of the declarations of a child who hath not capacity to be sworn, nor can such child be examined in court without oath; and that there is no determinate age at which the oath of a child ought either to be admitted or rejected (a). Yet where the evidence of children is admitted, it is much to be wished, in order to render their evidence credible, that there should be some concurrent testimony of time, place and circumstances;-in order to make out the fact, and that the conviction should not be grounded singly on the unsupported accusation of an infant of tender years. For in this, as in other cases, a witness may be 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.

"It is true," says Sir Matthew Hale, " 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." The learned judge 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 ac"cused thereof, by the confident testimony of sometimes "false and malicious witnesses" (b).]

VIII. We shall next mention a crime of the same general character as the forcible ravishment of a woman, (a) See R. v. Brasier, 1 Leach, C. L. 237. (b) 1 Hale, P. C. 635.

and which in some cases is punishable with equal severity. We refer to the crime of defiling or abuse of children; and with regard to this, it is, in the first place, 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 twelve years (c) : and, secondly, it is a misdemeanor punishable with imprisonment, with or without hard labour, to the extent of two years, so to know and abuse any girl above the age of twelve and under the age of thirteen,-whether with or without her consent (d). 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 (e).

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 (ƒ) and also by the civil law (g). This is unquestionably 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 the common law of England punished it with fine and imprisonment ().] But our

(e) 38 & 39 Vict. c. 94, s. 3. By this Act, 24 & 25 Vict. c. 100, ss. 50 and 51, are repealed.

(d) 38 & 39 Vict. c. 94, s. 4; and see 43 & 44 Vict. c. 45, wherein it is enacted that it shall be no defence to a charge or indictment for an indecent assault on a young person under the age of thirteen to prove that he or she consented to the indecency.

(e) 24 & 25 Vict. c. 100, s. 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; R. v. Ratcliffe, ib. 10 Q. B. D. 74.

(f) Exod. xxi. 16.

(g) Ff. 48, 15, 1. In the civil law the offence of spiriting away and stealing men and children was called plagium, and the offenders plagiarii. (Ff. 48, 15, 1.)

(h) Raym. 474; 2 Show. 221; Skin. 47; 4 Bl. Com. 219.

modern law on this head 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 (i), with intent to deprive the 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 who 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 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 (k).

X. The offence of abandoning young children has also been provided against by the statute last mentioned; and it is enacted that whoever shall unlawfully abandon or expose any child under the age of two years, 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 years, or imprisonment, with or without hard labour, for a term not exceeding two years (1). And in view of the same object, viz., the better protection of infant life, 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,

(i) 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. p. 86.

(k) 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.)

() 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; The Queen v. Falkingham, Law Rep., 1 C. C. R. 222; R. v. White, ib. p. 311.