Military.-§ 38. Provided always, and be it enacted, that nothing herein contained shall alter or affect any of the laws relating to the government of her Majesty's land or naval forces. Pardon. § 39. It shall be lawful for the Queen's Majesty, and for the governor, lieutenant-governor, or person administering the government of the province, to extend the royal mercy to any person imprisoned by virtue of this act, although he shall be imprisoned for non-payment of money to some party other than the crown. By the 6 V. c. 5, § 1, after reciting that it was expedient to enable the courts before whom offenders might be convicted in certain cases better to proportion the punishment to the guilt of the offence, it is enacted, that so much of the 4 & 5 V. c. 24, 25, 26 & 27 (or of any other law), as is inconsistent with this, shall be repealed. 2. That for every offence for which by any of the above-mentioned acts the offender is liable to imprisonment in the provincial penitentiary, but may instead thereof be imprisoned in any other prison for any term not exceeding two years, the offender may, if convicted, be punished, in the discretion of the court, by imprisonment in the provincial penitentiary for any term not less than three years, and not exceeding the longest term for which such offender might have been so imprisoned if this act had not been passed, or by imprisonment in any other prison or place of confinement for any term not exceeding two years, in the manner prescribed by such act: Provided, that this act shall not prevent such offender from being punished by imprisonment in the provincial penitentiary for life, if he might have been so punished if this act had not been passed. § 3. That for every offence for which by any of the said acts the offender might be punished by imprisonment for such term as the court should award, or for any term exceeding two years, such imprisonment, if awarded for a longer term than two years, shall be in the provincial penitentiary. § 4. That for every offence for which by any of the said acts, or by any other act or law, the offender might, if this act had not been passed, have been punished by transportation beyond seas, such offender may, if convicted after the passing of this act, be punished by imprisonment in the provincial penitentiary for any term for which he might have been transported if this act had not been passed, or by imprisonment for life, if without this act he might have been punished by transportation for life. QUAKERS. * By 49 G. III. c. 6, it is enacted, that every Menonist or Tunker, in any case in which an oath is required by law, or upon any lawful occasion wherein the affirmation or declaration of a Quaker will by law be admitted, shall be and is hereby permitted to make his or her affirmation or declaration in the same manner and form as a Quaker by the laws now in force is required to do, having first made the following affirmation or declaration : "I, A. B., do solemnly, sincerely and truly affirm and declare, that I am one of the Society of Tunkers or Menonists" [as the case may be]. Which affirmation or declaration shall be of the same force and effect in all courts of justice, and other places where by law an oath is required, as if such Menonist or Tunker had taken an oath in the usual form; and all persons authorised to administer an oath, may administer such affirmation or declaration. 2. Any person making a false affirmation or declaration, shall incur the pains and penalties of perjury. § 3. No Menonist or Quaker shall by virtue of this act, be qualified to serve on juries in criminal cases, or hold or enjoy any office under government. By 10 G. IV. c. 1, Quakers, Menonists, Tunkers and Moravians are admitted to give evidence in criminal cases, upon making an affirmation in the following form in lieu of any oath : "I, A. B., do solemnly, sincerely and truly declare, that I am one of the society called Quakers, Menonists, Tunkers, or Unitas Fratrum, or Moravians" [as the case may be]. And any person convicted of a false affirmation, shall incur the pains and penalties of perjury; but such persons shall not be permitted to serve on juries in criminal cases. By 4 & 5 Vic. c. 2, § 2. Quakers, Menonists, or Tunkers, shall not be compelled to serve in the Upper Canada militia, but on any such producing a certificate, signed by the clerk, pastor, minister or clan, of the meeting or society to which he shall belong, he shall be exempt: Provided, that every such person, from the age of sixteen to sixty, claiming such exemption, shall, on or before the first of February in every year, give in his name and place of residence to the assessor of the town or township where he shall reside, and shall pay in time of peace 10s. per annum, and in time of invasion or insurrection, or when any of the militia of the district in which such person shall reside shall be called out on actual service, the sum of £5, in lieu and discharge of such militia service. § 3. Assessors required to annex a column to the assessment roll, and therein insert the names of such persons, and affix the money to be paid opposite, which the collector shall collect as any ordinary assessment, and pay the same to the town clerk, to be expended within the township where levied, in aid of any road tax or assessment raised or levied therein. § 4. Said monies to be paid out by the town clerk from time to time to the order of the road or path master of the division wherein such fine shall have been levied, and expended on the public roads, highways and bridges, within such township or place as by law directed, and to render an account thereof upon oath to the clerk of such town, township or place, who shall report the same to the general quarter sessions, and if any such pathmaster or town-clerk shall fail to render such account, or to pay over and distribute such monies, he shall be subject to a penalty of £10 currency, to be recovered with costs by summary process, before any one or more justices of the peace for the division or district in which such town, township or place shall lie. By 9 Vic. c. 28, § 1, the 4 & 5 V. c. 2, is repealed, and by § 31, Quakers, Menonists and Tunkers, are exempt from serving in the militia on payment of 5s. per annum in time of peace, and in case of war a sum not exceeding £20. By 12 Vic. c. 88, the 31 § of the above act is repealed, and the 4 & 5 Vic. c. 2, revived. RAILROADS. By the 12 Vic. c. 28, Railroad companies, when required by the postmaster general, the commander of H. M. forces, or any person having the command or superintendence of the police force, shall carry the mail, naval or military forces, or militia, artillery, ammunition or other stores, policemen, constables and others travelling on her Majesty's service, and place any electric telegraph belonging to them at the disposal of her Majesty's government or such officer as aforesaid; such services to be performed upon such terms as the parties may agree, and in case of difference by the Governor in council. By 12 Vic. c. 29, the Governor in council is authorised to guarantee the interest on loans to any company chartered by the legislature for the construction of a line of railway not less than 75 miles in extent, on condition that the interest shall not exceed six per cent.; that the sum on which interest shall be so guaranteed shall not be greater than that expended by the company before the guarantee given, and shall be sufficient to complete their road; no such guarantee to be given until onehalf of the entire line of road shall have been completed; that such interest be the first charge on the tolls, and no dividend declared till such interest paid; that so long as any part of the principal on which interest is guaranteed by the province remains unpaid, no dividend shall be paid to the stockholders until a sum equal to three per cent. on the amount so remain ing unpaid shall have been set aside from the surplus profits and paid over to the receiver general under the provisions contained in this act as a sinking fund, and that the province shall have the first mortgage and lien upon the road, tolls and property of the company. RAPE. Of Rape in general. Rape signifies the carnal knowledge of a woman forcibly and against her will, and above the age of ten years, and was felony at common law.-2 Inst. 180. But by statute 3 Edw. I. c. 13, it was made only a misdemeanor. Afterwards, by stat. 13 Edw. I. c. 34, it was made felony again; and by stat. 18, Eliz. c. 7, § 1, was made capital. By $ 4 of the latter statute, it is also enacted, that if any person shall unlawfully and carnally know and abuse any woman child under the age of ten years, every such unlawful and carnal knowledge shall be felony. In which case, the consent or non-consent is immaterial; as by reason of her tender years, she is incapable of judgment and discretion.-4 Bl. 212. The offence of rape is no way mitigated by shewing that the woman at last yielded to the violence, if such her consent was forced, by fear of death or of duress.-1 Haw. 108. Nor is it any excuse that the woman is a common prostitute; for she is still under the protection of the law, and may not be enforced1 Haw. 108-nor that she consented after the fact.-Ibid. It is said by Mr. Dalton, that if a woman, at the time of the supposed rape, do conceive with child, by the ravisher, this is no rape; for (he says) a woman cannot conceive, except she doth consent. But Hawkins observes, that this opinion seems very questionable; not only because the previous violence is no way extenuated by such a subsequent consent, but also because, if it were necessary to shew that the woman did not conceive, the offender could not be tried until such time as it might appear whether she did or not; and likewise, because the philosophy of the notion may be very well doubted of.-1 Haw. 108. And L. Hale says, this opinion in Dalton seems to be no law.-1 H. H. 731. Evidence in Rape. Lord Coke, defining carnal knowledge, says, there must be penetratio—that is, rem in re; but the least penetration maketh it carnal knowledge.-3 Inst. 59, 50; East. P. C. 437. There must also be an emissio seminis; therefore in Hill's case, where the jury found the prisoner guilty, but said they did not find the emission [for, from interruption, it appeared probable that that was not effected], a great majority of the judges held that both penetration and emission were necessary, but thought that the fact should be left to the jury.-Hill's case, East. P. C. 439. From Hill's case it appears that the fact of penetration is prima facie evidence of emission: so, where the prisoner remained on the body of the woman as long as he pleased, without interruption, this was held sufficient evidence to be left to a jury, of an actual rape.-Harmwood's case, E. P. C. 440; S. P. Kelly's case, Bodmin, 1815, coram Chambre. Where the woman was dead, the evidence of other persons and her own depositions (which contained no mention of emission), were held sufficient to convict the prisoners; and that the jury might collect the fact of emission from other evidence.-Fleming and Windham's case, 2 Leach, 855. The party ravished may give evidence on oath, and is in law a competent witness; but the credibility of her testimony, 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 facts that occur in the testimony.-1 H. H. 632. 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; if the place where the offence was committed was remote from habitation; if the offender fled for it: these and the like are concurring evidences to give greater probability to her testimony, when proved by others as well as herself.-1 H. H. 633. On the other hand, if she concealed the injury for any length of time after she had the opportunity to complain; if the place where the offence was alleged to have been committed were near to inhabitants, or a thoroughfare for passengers, and she made no outery when the offence was perpetrated, so that she might have been heard by others; or if a man prove himself to have been in another place, or in other company, at the time she charges him with the fact; or if she is wrong in the description of the place, or swears the fact to have been done in a place where it was impossible the man could have access to her at that time-as, if the room was locked up, and the key in the custody of another person: these and the like circumstances carry a strong presumption that the testimony is false or feigned.-1 H. H. 633. Upon the whole, rape, it is true, is a most detestable crime, and therefore ought severely and impartially to be punished with death; but it must be remembered that it is an accusation easily to be made, and hard to be proved, and harder to be defended by the party accused, though never so innocent: the refore, a wise jury will be cautious upon trials of offences of this nature, that they be not so much transported with indignation at the heinousness of the offence as to be over-hastily carried |