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VII. Next to rape may be classed the crime of defilement or abuse of children. For, first, it is a felony punishable with penal servitude for life, or not less than three 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 ten years, even though she consent (m): and, secondly, it is a misdemeanor punishable by penal servitude for three years or imprisonment with or without hard labour to the extent of two years, so to know and abuse any girl above the age of ten and under twelve (n),—even though she consent. 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 (o); and also, on whomsoever shall by false pretences or representations or other fraudulent means commit the misdemeanor of procuring any female under the age of twenty-one, to have illicit carnal connexion with any man (p).

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VIII. What has been observed in the case of [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 offence, 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 offence 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.

(m) 24 & 25 Vict, c. 100, s. 50. (n) Sect. 51.

(o) Sect. 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.

(p) Sect. 49.

[We will not act so disagreeable a part as to dwell any longer upon a subject, the very mention of which is a disgrace to human nature. It will be more expedient to imitate in this respect the delicacy of our English law, which treats it as a crime not fit to be named; peccatum illud horribile, inter Christianos non nominandum (r)." A taciturnity observed likewise by the edict of Constantius and Constans (s); "ubi scelus est id quod non proficit scire, jubemus insurgere leges, armari jura gladio ultore, ut exquisitis pœnis subdantur infames qui sunt, vel qui futuri sunt, rei."]

In our own country [this offence, (being in the times of popery only subject to ecclesiastical censures,) was made felony without benefit of clergy by statute 25 Hen. VIII. c. 6, (revived and confirmed by 5 Eliz. c. 17),] and until very recently remained a capital offence (t). It is, however, now enacted by 24 & 25 Vict. c. 100, s. 61, that every person convicted of the abominable crime of buggery, committed either with mankind or with any animal, shall be kept in penal servitude for life, or not less than ten years. [And the rule of law herein is, that, if both are arrived at years of discretion, agentes et consentientes pari pœnâ plectantur (u).] Moreover, (by sect. 62), whosoever shall attempt to commit this crime, or shall be guilty of an assault with intent to commit the same, or of any indecent assault upon any male person, shall be guilty of a misdemeanor, punishable with penal servitude for ten or not less than three years, or imprison

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ment, with or without hard labour, not exceeding two years (x).

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 (y)] and also by the civil law (z). [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 therefore the common law of England punished it with fine and imprisonment (a).] But with respect to the stealing of children, our modern law 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 or take away, or decoy or entice away, or detain any child under the age of fourteen years (b), with intent to deprive any 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 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 he is made liable to penal servitude for not more than seven or less than three years, or to be imprisoned, with or without hard labour, for any term not more than two

(x) It is to be noticed that by 22 & 23 Vict. c. 17, no indictment shall be preferred to, or any found by, the grand jury charging an indecent assault, without security for the due prosecution of the charge, unless the indictment be directed by a judge, &c.

(y) Exod. xxi. 16.

(2) Ff. 48, 15, 1. In the civil law the offence of spiriting away and VOL. IV. ::

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stealing men and children was called plagium, and the offenders plagiarii. (Ib.)

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

(b) 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. 169.

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years; and also, if a male under the age of sixteen, to be whipped, if the court shall so think fit (c).

X. The offence of abandoning young children has also been provided against by the same statute; and it is enacted, that, whosoever 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 permanently injured or likely to be so, shall be guilty of a misdemeanor, and punishable by penal servitude for three years, or imprisonment, with or without hard labour, for a term not exceeding two years (d).

XI. Unlawfully endangering railway passengers. Whosoever shall unlawfully and maliciously put or throw on or across a railway any wood, stone or other thing; or displace any rail, sleeper or other thing, or turn any point of machinery belonging to a railway; or show, hide or remove any signal or light; or do any other thing, with intent to endanger the safety of any person travelling or being on such railway (e)—or shall throw against or into any railway engine or carriage any wood, stone or other thing, with intent to endanger the safety of any person being in or upon the same (f)-he shall, in any of the above cases, be guilty of felony: and he is liable to penal servitude for life, or not less than three years; or to be imprisoned, with or without hard labour, for any term not exceeding two years (g). And moreover, whosoever by any unlawful act, or wilful omission or neglect, shall endanger or cause to be endangered, or aids or assists in endangering v. Gray, 26 L. J. (N. S.) M. C. 203.

(c) A person claiming a right to the possession of the child, or to be the father or its mother, is not within the above provision (24 & 25 Vict. c. 100, s. 56).

(d) 24 & 25 Vict. c. 100, s. 27. See R. v. Cooper, 1 Den. C. C. 459 ; R. v. Hogan, 2 Den. C. C. 277; R.

(e) 24 & 25 Vict. c. 100, s. 32. In cases under this section, the offender, if a male under the age of sixteen, may be also sentenced to be whipped.

(f) Sect. 33.
(g) Sects. 32, 33.

or in causing to be endangered, the safety of any person conveyed by or being on a railway, shall be guilty of a misdemeanor, and punishable, with or without hard labour, to the extent of two years (h).

XII. Setting spring-guns or engines to destroy or injure trespassers. It is enacted by the same Act, that whosoever shall set or place, or cause to be set or placed, any springgun, man-trap, or other engine calculated to destroy human life, or inflict grievous bodily harm, with the intent to destroy such life or inflict such harm, upon a trespasser or other person coming in contact therewith,-shall be guilty of a misdemeanor, and be punishable with penal servitude for three years, or imprisonment with or without hard labour, to the extent of two years (i).

There is, however, a proviso, that the said enactment shall not extend to gins or traps such as are usually set with the intent of destroying vermin; or to spring-guns, man-traps, or other engines, set in a dwelling-house for the protection thereof from sunset to sunrise (k).

XIII. The remaining offences which fall under the subject of this chapter are, assaults, batteries, and false imprisonment. With regard to the nature of these offences in general, we have nothing further to add to what has been already observed in the preceding book of these Commentaries; [when we considered them as civil injuries, for which a satisfaction is given to the party

(h) 24 & 25 Vict. c. 100, s. 34. See R. v. Bradford, 29 L. J. (N. S.), M. C. 171.

(i) 24 & 25 Vict. c. 100, s. 31. Prior to 7 & 8 Geo. 4, c. 18, s. 1 (repealed by 24 & 25 Vict. c. 95), a man was not indictable for the mere act of placing such instruments on his premises with intent to destroy trespassers, at least if he gave

sufficient notice to the public that they were so placed. (Elott v. Wilks, 3 B. & Ald. 312, 314.) As to the right of action by a person who sustains injury from an engine of this description, see Jordan v. Crump, 8 Mee. & W. 782; Wootton v. Dawkins, 2 C. B. (N. S.) 412.

(k) 24 & 25 Vict. c. 100, s. 31.

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