ously and unlawfully cut off the ear of any of the king's subjects, he shall not only forfeit treble damages to the party grieved, to be recovered by action of trespass at common law, as a civil satisfaction; but also 101. by way of fine to the king, which was his criminal amercement. The last statute, but by far the most severe and effectual of all, is that of 22 & 23 Car. II. c. 1., called the Coventry act; being occasioned by an assault on sir John Coventry in the street, and slitting his nose, in revenge (as was supposed) for some obnoxious words uttered by him in parliament. By this statute it is enacted, that if any person shall of malice aforethought, and by lying in wait, unlawfully cut out or disable the tongue, put out an eye, slit the nose, cut off a nose or lip, or cut off or disable any limb or member of any other person, with intent to maim or to disfigure him; such person, his counsellors, aiders, and abettors, shall be guilty of felony without benefit of clergy *. (2)

* On this statute Mr. Coke, a gentleman of Suffolk, and one Woodburn, a labourer, were indicted in 1722; Coke for hiring and abetting Woodburn, and Woodburn for the actual fact of slitting the nose of Mr. Crispe, Coke's brother-in-law. The case was somewhat singular. The murder of Crispe was intended, and he was left for dead, being terribly hacked and disfigured with a hedge-bill; but he recovered. Now the bare intent to murder is no felony; but to disfigure with an intent to disfigure, is made so by this statute; on which they were therefore indicted. And Coke, who was a disgrace to the profession of the law, had the effrontery to rest his defence upon this point, that the assault was not committed

with an intent to disfigure, but with an intent to murder; and therefore not within the statute. But the court held, that if a man attacks another to murder him with such an instrument as a hedge-bill, which cannot but endanger the disfiguring him; and in such attack happens not to kill, but only to disfigure him; he may be indicted on this statute; and it shall be left to the jury whether it were not a design to murder by disfiguring, and consequently a malicious intent to disfigure as well as to murder. Accordingly the jury found them guilty of such previous intent to disfigure, in order to effect their principal intent to murder, and they were both condemned and executed. (State Trials, VI. 212.)

(2) The words "malice aforethought" in this statute do not require a malice directed against any particular individual, or the individual who suffers by it. If the malice be conceived against all who may happen to fall within the scope of the perpetrator's design, the particular mischief done will connect itself with the general malignant intent, and the statute will be satisfied. So again, if the blow be intended to maim A, and by accident maim B, the party is equally within its reach. This is upon the general principles of construction in the criminal law.

With regard to the words "lying in wait," it is not necessary that the party should have planted himself in ambush, and effected the mischief by

rushing

THUS much for the felony of mayhem: to which may be added the offence of wilfully and maliciously shooting at any person in any dwelling-house or other place; an offence, of which the probable consequence may be either killing or maiming him. This, though no such evil consequence ensues, is made felony without benefit of clergy by statute [208] 9 Geo. I. c.22., and thereupon one Arnold was convicted in 1723 for shooting at lord Onslow; but, being half a madman, was never executed, but confined in prison, where he died about thirty years after. (3)

II. The second offence, more immediately affecting the personal security of individuals, relates to the female part of his majesty's subjects; being that of their forcible abduction and marriage; which is vulgarly called stealing an heiress. For by statute 3 Hen. VII. c. 2., it is enacted, that if any person shall for lucre take any woman, being maid, widow, or wife, and having substance either in goods or lands, or being heir apparent to her ancestors, contrary to her will; and afterwards she be married to such misdoer, or by his consent to another, or defiled; such person, his procurers and abettors, and such as knowingly receive such women, shall be deemed principal felons and by statute 39 Eliz. c. 9., the benefit of clergy is taken away from all such felons, who shall be principals, procurers, or accessories before the fact. (4)

:

rushing from it; it is enough if there be a formed intention to maim, and a convenient opportunity sought and deliberately taken of doing the injury.

Lastly, the word "slit" will be satisfied by a transverse, as well as a perpendicular cut of the nose; any division of the flesh or gristle of the nose, in whatever form or direction, is sufficient. East's Pl. C. c. vii. s.3.

(3) The same construction has prevailed with regard to this statute, which is specially enacted relative to the 43 G.3. c.58. (see ante, p.196. n.20.) To bring a case within it, there must have been such malice that if death had ensued it would have been murder. And though it is not necessary that any evil consequence should actually ensue from the shooting, yet there must have been a possibility of it; the gun or other instrument must have been loaded, and it must have been levelled at the party; so that where the prisoner imagined the party was gone in one direction, and fired accordingly, whereas in truth he had escaped in the opposite, the court directed an acquittal. East's P. C. c.viii. s. 6.

(4) This is repealed by the 1 G. 4. c. 115., and the punishment of transportation for life, or for term of years not less than seven, or of imprison

ment

In the construction of this statute it hath been determined, 1. That the indictment must allege that the taking was for lucre, for such are the words of the statute'. 2. In order to shew this, it must appear that the woman has substance either real or personal, or is an heir apparent ". 3. It must appear that she was taken away against her will. 4. It must also appear, that she was afterwards married, or defiled. And though possibly the marriage or defilement might be by her subsequent consent, being won thereunto by flatteries after the taking, yet this is felony, if the first taking were against her will" and so vice versa, if the woman be originally taken away with her own consent, yet if she afterwards refuse to continue with the offender, and be forced against her will, she may from that time as properly be said to be taken against her [209] will, as if she never had given any consent at all; for till the

:

force was put upon her, she was in her own power. It is held that a woman, thus taken away and married, may be sworn and give evidence against the offender, though he is her husband de facto; contrary to the general rule of law; because he is no husband de jure, in case the actual marriage was also against her will P. In cases indeed where the actual marriage is good, by the consent of the inveigled woman obtained after her forcible abduction, sir Matthew Hale seems to question how far her evidence should be allowed: but other authorities seem to agree, that it should even then be admitted; esteeming it absurd, that the offender should thus take advantage 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. (5)

11 Hawk. P. C. c.41. § 5.

m 1 Hal. P. C. 660. 1 Hawk. P.C.

c. 41. § 4.

" 1 Hal. P. C. 660.

1 Hawk. P. C. c.41. § 7.

P 1 Hal. P. C. 661.

9 Cro. Car. 488. 3 Keb. 199. State Trials, V.455.

ment with or without hard labour for any term not exceeding seven years, substituted.

(5) It would be safer, perhaps, to put the competency of the woman as a witness against her husband on the principle now settled, that this is a personal injury committed by the husband against her, and that in all such cases the injured party is an admissible witness.

Upon

AN inferior degree of the same kind of offence, but not attended with force, is punished by the statute 4 & 5 Ph. & Mar. c.8. which enacts that if any person, above the age of fourteen, unlawfully shall convey or take away any woman child unmarried, (which is held to extend to bastards as well as to legitimate children,) within the age of sixteen years, from the possession and against the will of the father, mother, guardians, or governors, he shall be imprisoned two years, or fined at the discretion of the justices; and if he deflowers such maid or woman child, or without the consent of parents, contracts matrimony with her, he shall be imprisoned five years, or fined at the discretion of the justices, and she shall forfeit all her lands to her next of kin, during the life of her said husband. So that as these stolen marriages, under the age of sixteen, were usually upon mercenary views, this act, besides punishing the seducer, wisely removed the temptation. But this latter part of the act is now rendered almost useless, by provisions of a very different kind, which make the mar- [210] riage totally void, in the statute 26 Geo. II. c. 33. (6)

III. A THIRD offence, against the female part also of his majesty's subjects, 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 Sce Vol. I. p.437, &c.

Stra. 1162.

Upon the general principle that the complete crime must be proved in the county in which the trial takes place, it is settled that if a woman be forcibly taken in one county, and afterwards go voluntarily into another county, and be there married or defiled with her own consent, the fact is indictable in neither, for in neither is there both a forcible taking and subsequent marriage or defilement. But if the force continued upon her at all into the county in which she was married or defiled, the offence will be complete, and triable there. 1 East's P.C. c. xi. s.3. 1 Russell. C.L. 821., where there is a full report of the case of the Gordons, which turned on this point.

(6) By the 4G. 4. c. 76. (the present marriage act), such a marriage would not be void; but means are pointed out by way of information in the courts of chancery or exchequer to secure the property under an order of those courts, for the benefit of the innocent party or the issue of the marriage; and all agreements or settlements entered into by the parties in relation to such marriage, which are contrary to such order, are made absolutely void.

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against her will. 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.

THE civil lawu 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. 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 or is forced: "sive "volentibus, sive nolentibus mulieribus, tale facinus fuerit per"petratum." 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 poenae, ab hujusmodi "facinore se temperaverint, nulli mulieri, sive volenti, sive "nolenti, peccandi locus relinquetur; quia hoc ipsum velle mu“lierum, 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 will.

RAPE was punished by the Saxon laws, particularly those of king Athelstan with death: which was also agreeable to the old Gothic or Scandinavian constitution *. But this was

Deut. xxii. 25. "Cod. 9. tit.13.

w Bracton, 1.3. c. 28.

* Stiernh. de jure Sueon. 1.3 c.2.