Blackstone’s Commentaries with Notes of Reference (1803)
St. George Tucker
Of Offenses Against the Persons of Individuals
HAVING in the preceding chapter considered the principal crime or public wrong, that can be committed against a private subject, namely, by destroying his life; I proceed now to inquire into such other crimes and misdemeanors, as more peculiarly affect the security of his person, which living.
OF these some are felonious, and in their nature capital; others are simple misdemeanors, and punishable with a lighter animadversion. Of the felonies the first is that of mayhem.
I. MAYHEM, mahemium, was in part considered in the preceding volume,1 as a civil injury: but it is also looked upon in a criminal light by the law; being an atrocious breach of the king’s peace, and an offense tending to deprive him of the aid and assistance of his subjects. For mayhem is properly defined to be, as we may remember, the violently depriving another of the use of such of his members, as may render his the less able in fighting, either to defend himself, or to annoy his adversary.2 And therefore the cutting off, or disabling, or weakening a man’s hand or finger, or striking out his eye or foretooth, or depriving him of those parts, the loss of which in all animals abate their courage, are held to be mayhems. But the cutting off his ear, or nose, or the like, are not held to be mayhems at common law; because they do not weaken but only disfigure him.
BY the ancient law of England he that maimed any man, whereby he lost any part of his body, was sentenced to lose the like part; membrum pro membro:3 which is still the law in Sweden.4 But this went afterwards out of use: partly because the law of retaliation, as was formerly shown,5 is at best an inadequate rule of punishment; and partly because upon a repetition of the offense the punishment could not be repeated. So that, by the common law, as it for a long time stood, mayhem was only punishable with fine and imprisonement;6 unless perhaps the offense of mayhem by castration, which all our old writers held to be felony; “et sequitur aliquando poena capitalis, aliquando perpetuum exilium, cum omnium bonorum ademptione.”7 And this, although the mayhem was committed upon the highest provocation.8
BUT subsequent statutes have put the crime and punishment of mayhem more out of doubt. For, first, by statute 5 Hen. IV. c. 5. to remedy a mischief that then prevailed, of beating, wounding, or robbing a man, and them cutting out his tongue or putting out his eyes, to prevent him from being an evidence against them, this offense is declared to be felony, if done of malice prepense; that is, as Sir Edward Coke9 explains it, voluntarily and of set purpose, though done upon a sudden occasion. Next, in order of time, is the statute 37 Hen. VIII. c. 6. which directs, that if a man shall maliciously 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 10£ 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 counselors, aiders, and abettors, shall be guilty of felony without benefit of clergy.10
THUS much for the felony of mayhem: to which may be added the offense of wilfully and maliciously shooting at any person, which may endanger either killing or maiming him. This, though no such evil consequence ensues, is made felony without benefit of clergy by statute 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.
II. THE second offense, 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, maid, widow, or wife, 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 others, or defiled; such person, and all his accessories, shall be deemed principal felons: and by statute 39 Eliz. c. 9. the benefit of clergy is taken away from all such felons, except accessories after the offense.
IN the construction of this statute it has been determined, 1. That the indictment must allege that the taking was for lucre, for such are the words of the statute.11 2. In order to show this, it must appear that the woman has substance either real or personal, or is an heir apparent.12 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:13 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 will, as if she never had given any consent at all; for, till the force was put upon her, the was in her own power.14 5. 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.15 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 authorities16 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.
AN inferior degree of the same kind of offense, 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 held17 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 marriage totally void,18 in the statute 26 Geo. II. c. 33.
III. A THIRD offense, 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 against her will. This, by the Jewish law,19 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 damsels’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 law20punishes the crime of ravishment with death and confiscation of goods: under which it includes both the offense of forcible abduction, or taking away a woman from her friends, of which we last spoke; and also the present offense of forcibly dishonoring 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 perpetratum.” And this, in order to take away from women every opportunity of offending in this way; whom the Roman laws suppose 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 honor of the women. “Si enim ipsi raptores metu, vel atrocitate poenae, ab hujusmodi facinore fe temperaverint, mulli 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 honor 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,21 with death: which was also agreeable to the old Gothic or Scandinavian constitutions.22 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;23 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, (and, it seems, still continues to be so in appeals of rape24) 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.25 This seems to correspond in some degree with the laws of Scotland and Arragon,26 which require that complaint must be made within twenty four hours: though afterwards by statute Westm. 1 c. 13. the time of limitation in England was extended to forty days. At present there is no time of limitation fixed: for, as it is usually now punished by indictment at the suit of the king, 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,27 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 3 Edw. I. by the statute Westm. 1. c. 13. the punishment of rape was much mitigated: the offense itself being reduced to a trespass, if not prosecuted by the woman 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 ten years afterwards, 13 Edw I. found necessary to make the offense of rape felony, by statute Westm. 2. c. 34. And by statute 18 Eliz. c. 7. it is made felony without benefit of clergy: as is also the abominable wickedness of carnally knowing or abusing any woman child under the age of ten years; in which case the consent or non-consent is immaterial, as by reason of her tender years she is incapable of judgment and discretion. Sir Matthew Hale is indeed of opinion, that such profligate actions committed on an infant under the age of twelve years, the age of female discretion by the common law, either with or without consent, amount to rape and felony; as well since as before the statute of queen Elizabeth:28 but the law has in general been held only to extend to infants under ten.
A MALE infant, under the age of fourteen years, is presumed by law incapable to commit a rape, and therefore it seems cannot be found guilty of it. For though in other felonies malitia supplet aetatem, as has in some cases been shown; yet, as to this particular species of felony, the law supposes an imbecility of body as well as mind.29
THE civil law seems to suppose a prostitute or common harlot incapable of any injuries of this kind:30 not allowing any punishment for violating the chastity of her, who has indeed no chastity at all, or at least has 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. It therefore holds it to be felony to force even a concubine or harlot; because the woman may have forsaken that unlawful course of life:31 for, as Bracton well observes,32 “licet meretrix fuerit antea, certe tunc temporis non suit, cum reclamando nequitiae ejus consentire noluit.”
AS to the material facts requisite to be given in evidence and proved upon an indictment of 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 are to be found in such criminal treatises as discourse of these matters in detail, yet they are highly improper to be publicly discussed, except only in a court of justice. I 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 forth she is to be believed, must be left to the jury upon the circumstances of fact that concur in that testimony. For instance: if the witness be of good fame; if she presently discovered the offense, 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 stands 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 be 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.
MOREOVER, if the rape be charged to be committed on an infant under twelve years of age, she may still be a competent witness, if she has sense and understanding to know the nature and obligations of an oath; and, even if she has not, it is thought by Sir Matthew Hale33 that she ought to be heard without oath, to give the court information; though that alone will not be sufficient to convict the offender. And he is of this opinion, first, because the nature of the offense being secret, there may be no other possible proof of the actual fact; though afterwards there may be concurrent circumstances to corroborate it, proved by other witnesses: and, secondly, because the law allows what the child told her mother, or other relations, to be given in evidence, since the nature of the case admits frequently of no better proof; and there is much more reason for the court to hear the narration of the child herself, than to receive it at second hand from those who swear they heard her say so. And indeed it is now settled, that infants of any age are to be heard; and, if they have any idea of an oath, to be also sworn: it being found by experience that infants of very tender years often give the clearest and truest testimony. But in any of these cases, whether the child be sworn or not, it is to be wished, in order to render her 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 under years of discretion. There may be therefore, in many cases of this nature, witnesses who are competent, that is, who 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 this learned judge34 “that rape 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 easy to be made, hard to be proved, but harder to be defended by the party accused, though innocent.” He then relates two very extraordinary cases of malicious prosecutions 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 offenses 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 offense many times transporting the judge and jury with so much indignation, that they are overhastily carried to the conviction of the person accused thereof, by the confident testimony of sometimes false and malicious witnesses.”
IV. WHAT has been here observed, especially with regard to the manner of proof, which ought to be the more clear in proportion as the crime is the more detestable, may be applied to another offense, of a still deeper malignity; the infamous crime against nature, committed either with man or beast. A crime, which ought to be strictly and impartially proved, and then as strictly and impartially punished. But it is an offense of so dark a nature, so easily charged, and the negative so difficult to be proved, that the accusation should be clearly made out: for, if false, it deserves a punishment inferior only to that of the crime itself.
I WILL not act so disagreeable part, to my readers as well as myself, as to dwell any longer upon a subject, the very mention of which is a disgrace to human nature. It will be more eligible to imitate in this respect the delicacy of our English law, which treats it, in its very indictments, as a crime not fit to be named; “peccatum illud horribile, inter christianos non nominandum“. A taciturnity observed likewise by the edict of Constantius and Constans:35 “ubi scelus est id, quod non proficit scire, jubemus insurgere leges, armari jura gladio ultore, ut exquisitis poenis subdantur infames, qui sunt, vel qui futuri sunt, rei.” Which leads me to add a word concerning its punishment.
THIS the voice of nature and of reason, and the express law of God,36 determine to be capital. Of which we have a signal instance, long before the Jewish dispensation, by the destruction of two cities by fire from heaven: so that this is an universal, not merely a provincial, precept. And our ancient law in some degree imitated this punishment, by commanding such miscreants to be burnt to death;37 though Fleta38 says they should be buried alive: either of which punishments was indifferently used for this crime among the ancient Goths.39 But now the general punishment of all felonies is the same, namely, by hanging: and this offense (being in the times of popery only subject to ecclesiastical censures) was made single felony by the statute 25 Hen. VIII. c. 6. and felony without benefit of clergy by statute 5 Eliz. c. 17. And the rule of law herein is, that, if both are arrived at years of discretion, agentes et consentientes pari poena plectantur.40
THESE are all the felonious offenses, more immediately against the personal security of the subject. The inferior offenses, or misdemeanors, that fall under this head, are assaults, batteries, wounding, false imprisonment, and kidnapping.
V, VI, VII. WITH regard to the nature of the three first of these offenses in general, I have nothing farther to add to what has already been observed in the preceding book of these commentaries;41 when we considered them as private wrongs, or civil injuries, for which a satisfaction or remedy is given to the party aggrieved. But, taken in a public light, as a breach of the king’s peace, an affront to his government, and a damage done to his subjects, they are also indictable and punishable with fine and imprisonment; or with other ignominious corporal penalties, where they are committed with any very atrocious design.42 As in case of an assault with an intent to murder, or with an intent to commit either of the crimes last spoken of; for which intentional assaults, in the two last cases, indictments are much more usual, than for the absolute perpetration of the facts themselves, on account of the difficulty of proof: and herein, besides heavy fine and imprisonment, it is usual to award judgment of the pillory.
THERE is also one species of battery, more atrocious and penal than the rest, which is the beating of a clerk in orders, or clergyman; on account of the respect and reverence due to his sacred character, as the minister and ambassador of peace. Accordingly it is enacted by the statute called articuli cleri, 9 Edw. II. c. 3. that if any person lay violent hands upon a clerk, the amends for the peace broken shall be before the king; that is by indictment in the king’s courts: and the assailant may also be sued before the bishop, that excommunication or bodily penance may be imposed: which if the offender will redeem by money, to be given to the bishop, or the party grieved, it may be sued for before the bishop; whereas otherwise to sue in any spiritual court, for civil damages for the battery, falls within the danger of praemunire.43 But suits are, and always were, allowable in the spiritual court, for money agreed to be given as a commutation for penance.44 So that upon the whole it appears, that a person guilty of such brutal behavior to a clergyman, is subject to three kinds of prosecution, all of which may be pursued for one and the same offense: an indictment, for the breach of the king’s peace by such assault and battery; a civil action, for the special damage sustained by the party injured; and a suit in the ecclesiastical court, first, pro correctione et salute animae by enjoining penance, and then again for such sum of money as shall be agreed on for taking off the penance enjoined: it being usual in those courts to exchange their spiritual censures for a round compensation in money45perhaps because poverty is generally esteemed by the moralists the best medicine pro salute animae.
VIII. THE two remaining crimes and offenses, against the persons of his majesty’s subjects, are infringements of their natural liberty: concerning the first of which false imprisonment, its nature and incidents, I must content myself with referring the student to what was observed in the preceding volume,46 when we considered it as a mere civil injury. But, besides the private satisfaction given to the individual by action, the law also demands public vengeance for the breach of the king’s peace, for the loss which the state sustains by the confinement of one of its members, and for the infringement of the good order of society. We have before seen,47 that the most atrocious degree of this offense, that of sending any subject of this realm a prisoner into parts beyond the seas, whereby he is deprived of the friendly assistance of the laws to redeem him from such his captivity, is punished with the pains of praemunire, and incapacity to hold any office, without any possibility of pardon.48 Inferior degrees of the same offense of false imprisonment are also punishable by indictment (like assaults and batteries) and the delinquent may be fined and imprisoned.49 And indeed50 there can be no doubt, but that all kinds of crimes of a public nature all disturbances of the peace, all oppressions, and other misdemeanors whatsoever, of a notoriously evil example, may be indicted at the suit of the king.
IX. THE other remaining offense, that of kidnapping, being the forcible abduction or stealing away of man, woman, or child from their own country, and selling them into another, was capital by the Jewish law, “He that steals a man, and sells him, or if he be found in his hand, he shall surely be put to death.”51 So likewise in the civil law, the offense of spiriting away and stealing men and children, which was called plagium, and the offenders plagiarii, was punished with death.52 This is unquestionably a very heinous crime, as it robs the king of his subjects, banishes a man from his country, and may in its consequences be productive of the most cruel and disagreeable hardships; and therefore the common law of England has punished it with fine, imprisonment, and pillory.53 And also the statute 11 & 12 W. III. c. 7. though principally intended against pirates, has a clause that extends to prevent the leaving of such persons abroad, as are thus kidnapped or spirited away; by enacting, that if any captain of a merchant vessel shall (during his being abroad) force any person on shore, or wilfully leave him behind, or refuse to bring home all such men as he carried out, if able and desirous to return, he shall suffer three months imprisonment. And thus much for offenses that more immediately affect the persons of individuals.
1. See Vol. III. pag. 121.
2. Brit. l. 1. c. 25. 1 Hawk. P. C. 111.
3. 3 Inst. 118. Mes, si la pleynte soit faite de femme qu’avera tolle a home ses membres, en tiel case perdra la feme la une meyn par jugement, come le membre dount ele avera trespasse. (Brit. c. 25.)
4. Stiernhook de jure Sueon. l. 3. c. 3.
5. See pag. 12.
6. 1 Hawk. P. C. 112.
7. Bract. Fol. 144.
8. Sir Edward Coke (3 Inst. 62.) has transcribed a record of Henry the third’s time, (Claus. 13 Hen. III. m. 9.) by which a gentleman of Somersetshire and his wife appear to have been apprehended and committed to prison, being indicted for dealing thus with John the monk, who was caught in adultery with the wife.
9. 3 Inst. 62.
10. On this statute Mr. Coke, a gentleman of Suffolk, and one Woodburn, a laborer, 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 hedgebill; 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 defense 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 where 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.)
11. 1 Hawk. P. C. 110.
12. 1 Hal. P. C. 660. 1. Hawk. P. C. 109.
13. 1 Hal. P. C. 660.
14. 1 Hawk. P. C. 110.
15. 1 Hal. P. C. 661.
16. Cro. Car. 488. 6 keb. 193. Seate. Trials. V. 455.
17. Stra. 1162.
18. See vol. I. pag. 437. etc.
19. Deut. 22:25.
20. Cod. 9. tit. 13.
21. Bracton. l. 3. c. 28.
22. Stiernh. de jure Sueon. l. 3. c. 2.
23. LL. Guil. Cunqu. P .C. 19.
24. 1 Hal. P. C. 632.
25. Glanv. l. 14. c. 6. Bract. L. 3. c. 28.
26. Barrington. 107.
27. Glanv. l. 14. c. 6. Bract. L. 3. c. 28.
28. 1 Hal. P. C. 631.
30. Cod. 9. 9. 22. Ff. 47. 2. 39.
31. 1 Hal. P. C. 629. 1. Hawk. P. C. 108.
32. fol. 147.
33. 1 Hal. P. C. 634.
34. 1 Hal. P. C. 635.
35. Cod. 9. 9. 31.
36. Levit. xx. 13. 15.
37. Brit. c. 9.
38. l. 1. c. 37.
39. Stiernh. de jure Goth. l. 3. c. 2.
40. 3 Inst. 59.
41. See Vol. III. 120.
42. 1 Hawk. P. C. 65.
43. 2 Inst. 492. 620.
44. Arti. Cler. 9 Edw. IL. 4. F. N. B. 55.
45. 2 Rol. Rep. 384.
46. See Vol. III. pag. 127.
47. See pag. 116.
48. Stat. 31 Car. II. c. 2.
49. West. Symbol. part. 2. pag. 92.
50. 1 Hawk. P. C. 210.
51. Exod. 21:16.
52. Ff. 48. 15. 1.
53. Raym. 474. 3 Show, 221. Skinn 47. Comb. 10.