did not give such an absolute refusal as to prevent his mentioning the subject aşım, and that in a letter he wrote to her, about the 12th of January (and which ontained strong declarations of attachment), he alluded to the tour; but she expssly stated, that she did not know of any plan for going with him anywhere, no ever consented to any such plan; though when it was mentioned by him on thesame day on which she received his letter, she said, "We will talk of it." A letter from Lockhart Gordon was received by her, together with that from Loudon, in which he also mentioned the proposed tour as likely to conduce to her happiness; described himself as having a head to conceive, a heart to feel, and a hand to execute, whatever might be for her advantage; and declared that if his brother ever deceived her he would blow his brains out. A short time before Sunday, the 15th of January, Mrs. Lee invited Loudon Gordon to dine with her on that day, and requested that he would bring his brother Lockhart with him; and they came accordingly. This was at the time at which the offence was alleged to have been committed. According to Mrs. Lee's account of the material transactions at that time, it appeared that after dinner she said to Lockhart Gordon," What do you think of the extraordinary plan your brother has proposed?" To which he replied, "If he loves you, and you love him, I think it will tend to your mutual happiness; you will gain two friends.” That she did not recollect anything more being said upon the subject till Lockhart Gordon pulled out his watch, said it was near seven o'clock, and that the chaise would soon be there; and said, further, "You must go with Loudon to-night." She *945] thought this a joke, as no mention had been previously made of leaving London, or of any chaise; and she knew of no preparations *having been made for her leaving London. About this time Loudon Gordon came towards Mrs. Lee with a ring, and attempted to put it on her finger; but she drew away her hand, and the ring was left upon the table. She then attempted to go up stairs, but Lockhart Gordon said she should not, and placed himself against the door; and either at that time, or soon afterwards, he produced a pistol; she, however, after having rung the bell violently, got out at the door, and went up stairs, where she said to her female servant. "There is a plan to take me out of my house; they are armed with pistols; say no more, but watch." She described herself as having felt quite panic-struck at that time. Soon afterwards the prisoners came up stairs, and Lockhart Gordon said, "I am determined you shall go:" this was not said in a threatening manner; but soon afterwards, upon her saying to him, "What right have you to force me out of my house?" he said, "I am desperate," and looked as if he was so. Mrs. Lee described herself as then getting into a very wretched and confused state of mind, not absolutely stupid, but unable to recollect what passed But it appeared from the evidence of her servants, that Loudon Gordon first came down stairs, and sent the footman to call a coach, who went accordingly; and that the only servants then in the house were two females; that Loudon returned up stairs, when a scuffle was heard almost immediately, and Mrs. Lee called out, "I am determined not to go out of my own house;" to which Lockhart Gordon replied, "I am desperate, Mrs. Lee." The female servants went immediately up stairs, and found Lockhart pushing Mrs. Lee out of the drawing-room, with his arm round her waist, and Loudon near them. Mrs. Lee was in a thin muslin dress, with a small crape handkerchief about her head, as she was dressed for dinner, and without any hat or bonnet. One of the servants put her arms round Mrs. Lee's waist, to drag her away, but Lockhart Gordon produced a pistol, and swore that he would shoot the servant, by which she was so much alarmed, that she desisted. The other servant then took Mrs. Lee by the hand, but quitted it upon Lockhart Gordon's threatening also to shoot her, and presenting a pistol. Lockhart Gordon then laid hold of one of the servants, and, both of them being so much alarmed as to make no further resistance, Loudon Gordon put his arm round Mrs. Lee's waist, and took her down stairs, and out at the street door; when Lockhart Gordon immediately followed. It appeared by other witnesses that a post-chaise, which the prisoners had ordered in the course of the morning, was at that time waiting at the end of Bolton Row; that Mrs. Lee was taken to it by Loudon Gordon; that Lockhart Gordon followed; and that it drove off immediately on the road to Uxbridge. Mrs. Lee's account was, that though she remembered but imperfectly what took place at the time she was

tak away, she was certain she went from the house against her will, but that no matial force was used to get her into the chaise. She described herself in a state of Artial stupefaction; and several of the witnesses spoke of her as being of a very nervus frame, easily agitated, and subject to a depression of spirits, to such an exteit as to be occasionally in a state of great mental misery.

*Is soon as Mrs. Lee and the two prisoners had got into the chaise, it drove off at a snart pace towards Uxbridge, Mrs. Lee sitting in the middle between the [*946 prisoners; and it appeared that, after changing horses at Uxbridge and at Wycombe, the party arrived at Tetsworth, about twelve miles from Oxford, between one and two oclock in the morning. Mrs. Lee stated, that she frequently remonstrated with the prisoners in the course of the journey; and particularly told Lockhart Gordon that it was "a most infernal measure, and a breach of hospitality;" and repeated y asked him for a chaise to take her back to London; making the application principally to him, because he seemed to have taken the lead in the whole business. But it appeared as well from her own admissions as from the evidence of the post-boys, that she never called for assistance at the inns, turnpike gates, or other places; and one of the post-boys stated, that, at Wycombe, one of the prisoners asked her whether she would stay there or go on to Tetsworth or Oxford, and that her answer was, "I don't care." Mrs. Lee also admitted, that a ring was put upon her finger in the course of the journey by Loudon Gordon; and that during the journey, but whether before they got to Uxbridge or afterwards she could not tell, she took a steel necklace, with a camphire bag attached to it, from her neck, and threw it out of the window of the chaise, saying, "That was my charm against pleasure; I have now no occasion for it." She said, that she used the word charm," as alluding to the supposed medical property of camphire in quieting the nerves, and calming the passions, particularly the passion which a person of one sex feels for a person of the other; and that she was in the habit of wearing it as a sedative; that at the time she used the expression she gave herself up, but that she afterwards expostulated. And she also admitted, that during the journey she made some inquiries concerning Loudon Gordon's health; and might, perhaps, have inquired how long it was since he had been acquainted with a person of her own sex.

At Tetsworth the parties got out of the chaise, and supper and beds were ordered to be prepared. Mrs. Lee stated, that she ate a good supper, and that there was a good deal of cheerful conversation during the repast; the whole of which she did not recollect, but that part of it related, as she believed, to Egyptian hieroglyphics and architecture. A question was then put to her, whether the whole of what passed might not have induced Loudon Gordon to have believed that he might approach her bed; to which she answered, "It might; I was in desperation." She admitted, that she might have told Loudon Gordon to see that the sheets were well aired; but said that if she had had the perfect exercise of her judgment, and her mind had been free from force, she should have been more inclined to have ordered a chaise than to have gone to bed. After she had gone up stairs into the bed room, the chambermaid asked her, when she should be in bed, and when the gentleman should come up; to which she replied, "In ten minutes." Upon this statement of Mrs. Lee's, in her examination, the following question was put to her, "What induced you to send such a message?" and it was objected to by the counsel for the prisoners, on the ground that it was not a question as to a fact, but to something existing in the mind of the witness. Lawrence, J., overruled [947 the objection; but said, that whether the answer would be evidence or not must depend upon the nature of it; that if Mrs. Lee should answer, "I thought my life in danger; for Lockhart Gordon told me, if I did not let Loudon Gordon come to bed to me, he would blow my brains out :" such answer would certainly be evidence, though the apprehensions of the witness, unsupported by words used by the prisoners, or facts, would not. The question was then put; and Mrs. Lee answered, "I was under the impression that my life was in danger from Lockhart Gordon; and I was apprehensive of some serious scuffle at the inn, in which lives might be lost." Mrs. Lee then stated, that shortly after the chambermaid left the room, Loudon Gordon came to bed to her, and remained with her all the night; and that the intercourse took place between them which usually takes place between husband and wife.

These were the material facts of the case, with the addition, that it was pro by the woman with whom the prisoners lodged in London, that, previous to the t when this transaction took place, Lockhart Gordon was pressed for money,. backward in his 'payments, and that Loudon Gordon had admitted to her tha was in distressed circumstances. The learned counsel for the prisoners was ceeding in his cross-examination of Mrs. Lee, to question her as to her religs principles; and she had just admitted, that she seldom went to any place of wor and was inclined to doubt the Christian religion, when Lawrence, J., after hig inquired of the counsel for the prosecution, whether they had any further evice to offer of force in the county of Oxford, and been told by them that they hast, said, that he was of opinion the case should not proceed any farther. The med Judge then addressed himself to the jury, and told them, that, in order to coatute the offence with which the prisoners were charged, there must be a forcibletking, and a continuance of that force into the county where the defilement tak place, and where the indictment is preferred; that in the present case, though aere appeared clearly to have been force used for the purpose of taking the rosecutrix from her house, yet, it appeared also, that in the course of the jourry she consented, as she did not ask for assistance at the inns, turnpike gates, &., where she had opportunities; and that, as she was unable to fix times or place with any precision, this consent probably took place before the parties came in the county of Oxford; and that they must therefore acquit the prisoners. (s)

Upon an indictment for abduction on the 9 Geo. 4, c. 31, s 19, it must have been proved that the prisoner took away the woman from moives of lucre, but his expressions relative to her property were evidence that he was actuated by such motives. Upon an indictment for having feloniously and from motives of lucre taken away and detained M. E. against her will, she having a future interest in certain personal property, containing a count with intent to marry, and a count with intent to defile, it appeared *that the prisoner had taught M. E. music, and *948] had paid his addresses to her, which were favorably received by her, but which her relatives insisted upon her breaking off, and by their advice she wrote to the prisoner to tell him that the intimacy must cease for ever. One day when she was walking out the prisoner came in a gig, got out, came behind her, and having placed his hand on her shoulder carried her in his arms to the gig, she struggling and screaming all the time he was doing so. He then drove away with her, but was pursued and overtaken at a distance. She was cross-examined with a view to show that she had consented to the abduction. M. E. would, on her attaining the age of twenty-one, be entitled to the sum of 21007., and the prisoner had said that he knew she would be entitled to 2007. a year. It was contended that if the prisoner carried her off even against her own consent to make her his wife from affection to her person, and not as the means of getting at her property, the offence was not proved. In Rex v. Wakefield,(t) the parties had no previous intimacy, and therefore all inducement to the act arising from real passion and affection was out of the question; and the abduction in that instance, as well as in almost every other which had been the subject of penal inquiry, could be accounted for on no other grounds than those of cold and sordid calculation, to get possession of a lady's property by first obtaining possession of her person. Parke, B., "I agree with the learned counsel for the prisoner, that there is a great distinction between this case and the case of Rex v. Wakefield, as there was not in that case any previous intimacy between the parties. I also agree with him as to his argument, that if all the other requisites of the statute constituting the offence are satisfied, and the evidence of the motive being the base and sordid one of lucre is unsatisfactory or insufficient, it will be your duty to acquit the prisoner of the charge of felony. It is clearly made out that Miss Ellis is entitled to personal property, and that the prisoner took her away with the intention of marrying her; and I think that the other count may be entirely laid out of your consideration, as there is no evidence of it whatever. You

(8) Rex v. Lockhart and Loudon Gordon, cor. Lawrence, J., Oxford Lent Ass. 1804. As I find this case frequently referred to in the text-books, I have thought it better to retain

it in this edition. C. S G.

(1) Post, p. 950.

will therefore say, whether the prosecutrix being a lady entitled to property, the prisoner either took her away or detained her against her will, with the intent of marrying her, but for the base purpose of getting possession of her property; and if you come to the conclusion that that was so, it will be your duty to find him guilty of the felony. With respect to the motives of the prisoner, evidence has been given of expressions used by the prisoner respecting the property of Miss Ellis, such as his having told one of the witnesses that he had seen Mr. Whitwell's will, and that she would be entitled to 2007. a year. These expressions are important for you to consider, in order to your forming a judgment whether the prisoner was actuated by motives of lucre or not. Unless you are satisfied that such a motive prompted him to take away the prosecutrix against her will, he is entitled to be acquitted of the felony."(u)

It was resolved, that an indictment for this offence upon the repealed statute, ought expressly to set forth that the woman taken *away had lands or goods, [*949 or was heir apparent, and that the taking was against her will; and that it was for lucre; and also that she was married or defiled; such statement being necessary to bring a case within the preamble of that statute, to which the enacting clause clearly referred in speaking of persons taking away a woman "so against her will."(w) But it was said not to have been necessary to state in the indictment, that the taking was with an intention to marry or defile the party, because the words of the statute did not require such an intention, nor did the want of it in any way lessen the injury.(x) In an indictment, however, upon the 24 & 25 Vict. c. 100, the allegation as to the intent will be necessary.

It appears to have been considered as clear, that a woman taken away and married might be a witness against the offender, if the force were continuing upon her till the marriage and that she might herself prove such continuing force;(7) for though the offender was her husband de facto, he was no husband de jure, in case the marriage was actually against her will.(z) It seems, however, to have been questioned how far the evidence of the inveigled woman would be allowed, in cases where the actual marriage was good, by her consent having been obtained after forcible abduction. (a) But other authorities appear to agree that it should be admitted, even in that case; esteeming it absurd that the offender should thus take advantage of his own wrong, and that the very act of marriage. which was a principal ingredient of his crime, should (by a forced construction of the law) be made use of to stop the mouth of the most material witness against him.(b) And where the marriage was against the will of the woman at the time, there does not seem to be any good ground upon which her competency could be objected to, though she might have given her subsequent assent. (c) It also appears to have been ruled upon debate, in one case, that a wife was a competent witness for as well as against her husband, on the trial of an indictment for this offence, although she had cohabited with him from the day of her marriage. (d)

And it has since been held that a wife is competent against her husband, in all (u) Reg. v. Barratt, 9 C. & P. 387 (38 E. C. L. R.).

(w) 1 Hawk. P. C. c. 41, s. 4; 1 Hale 660; 4 Blac. Com. 209; 12 Co. 21, 100.

(x) Fulwood's case, Cro. Car. 488, ante, 943. It is said, however, in 1 Hale 660, that the words eâ intentione ad ipsam maritandum are usually added in indictments on this statute, and that it was safest so to do.

(y) Fulwood's case, Cro. Car. 488; Brown's case, 1 Ventr. 243; Swendsen's case, 5 St. Tri. 456.

(z) 1 Hale 660, 661; 4 Blac. Com. 209.

(a) 1 Hale 661, where the author observes, upon Brown's case, ante, note (y), that some of the reasons why the woman was sworn and gave evidence were, that there was no cohabitation, and that there was concurring evidence to prove the whole fact: but that if she had freely and without constraint, lived with the person who married her for any considerable time, her examination in evidence might have been more questionable. (b) 4 Blac. Com. 209.

(c) 1 East P. C. c. 11, s. 5, p. 454.

(d) Perry's case, Bristol 1794; 1 Hawk. P. C. c. 41, s. 13; and in 1 East PC. c. 11, s. 5, p. 455, the learned author says, "I conceive it to be now settled, that in all cases of personal injuries committed by the husband or wife against each other, the injured party is an admissible witness against the other." And see post, Book on Evidence. In Perry's case no force was used, see per Hullock, B., Wakefield's case, 2 Lew. 280.

cases affecting her liberty and person. An heiress was obtained possession of by means of a fraudulent letter, and carried by a circuitous route to Gretna Green, where, by means of false representations, she was prevailed upon to go *950] through the ceremony of a Scotch marriage, and consent to become the wife of one of the persons who had carried her away. Upon an indictment for conspiring to commit a violation of the 3 Hen. 7, c. 2, and 4 & 5 Ph. & M. c. 8 (now repealed), it was proposed to call her as a witness for the prosecution, and she was objected to on the ground that the marriage was valid, and consequently she was incompetent.(e) She was, however, examined, and afterwards a member of the Scotch bar, who stated that it was a valid marriage acccording to the law of Scotland. Hullock, B.: "A wife is competent against her husband, in all cases affecting her liberty and person. This was decided in Lord Audley's case,(f) having been before that time for a long while doubted; but it has since been established, by a long series of cases, that she may prosecute, exhibit articles of the peace," &c. "I am not convinced, by what has been said, that this marriage is valid in Scotland. If it is not, the witness is admissible, of course. If not, I still think her so."(g)

The unlawful abduction of girl under the age of sixteen from her parents, or persons having the charge of her, is an offence of the degree of misdemeanor. By the 24 & 25 Vict. c. 100, s. 55, "Whosoever shall unlawfully take or cause to be taken any unmarried girl, being under the age of sixteen years, out of the possession and against the will of her father or mother, or of any other person having the lawful care or charge of her, shall be guilty of a misdemeanor, and being convicted thereof, shall be liable, at the discretion of the Court to be imprisoned for any term not exceeding two years, with or without hard labor."(h)

The construction upon some parts of the repealed statutes, 4 & 5 Ph. & M. c. 8, and 9 Geo. 4, c. 31, may still be worthy of observation.

It was decided, that the taking away a natural daughter under sixteen years of age, from the care and custody of her putative father, was an offence within the 4 & 5 Ph. & M. c. 8.(i) It was also holden that a mother retained her authority, notwithstanding her marriage to a second husband; and that the assent of the second husband was not material.(k) In the last case it was also ruled, that the fourth section of the statute extended only to the custody of the father, or to that of the mother where the father had not disposed of the custody of the child to others.(1) In a case where a widow, fearing that her daughter, who was a rich heiress, might be seduced into an improvident marriage, placed her under the care of a female friend, who sent *for her son from abroad, and married him openly in the

*951] church, and during canonical hours, to the heiress, before she attained the

age of sixteen, and without the consent of her mother, who was her guardian; it was holden, that in order to bring the offence within the statute, it must appear that some artifice was used; that the elopement was secret; and that the marriage was to the disparagement of the family.(m) But on this case it has been remarked, that no stress appears to have been laid upon the circumstance of the mother having placed the child under the care of the friend, by whose procurance the marriage was effected; and that it deserves good consideration before it is decided that an offender, acting in collusion with one who has the temporary custody of another's child, for a special purpose, and knowing that the parent or guardian did not consent, was not within the statute; for that then every schoolmistress might dispose, in the same

(e) It was contended that her incompetency might be shown either by examining her on the voir dire, or by other witnesses, and for the defendant it was proposed to show her incompetency by other witnesses. Hullock, B., ruled that as this was a point of practice, and he saw some inconvenience in not calling her, which would not exist if she were called, she should be called.

(f) 3 How. St. Tr. 413.

(g) Wakefield's case, 2 Lew. 279, Hullock, B.

(h) This clause is taken from the 9 Geo. 4, c. 31, s. 20, and 10 Geo. 4, c. 34, s. 24 (I.). As to hard labor, &c., see ante, p. 900. As to counsellors and aiders, see sec. 67, ante, p. The Act extends to Ireland, but not to Scotland.

881.

(i) Rex v. Cornforth, 2 Str. 1162; 1 Hawk. P. C. c. 41, s. 14; Rex v. Sweeting, 1 East P. C. c. 11, s. 6, p. 457.

(k) Ratcliffe's case, 3 Co. 39.

(m) Hicks v. Gore, 3 Mod. 84; 1 Hawk. P. C. c. 41, s. 11.

(2) Id. Ibid.