1 Ed. 6. c. 12. 3 & 4 Ed. 6. c. 15. noble personages, of whom such false prophecies have or should hereafter be set forth, whereby in times past many noblemen have suffered, and (if their prince would give any ear thereto) might hap to do hereafter; and therefore enacted, that he who should do so should be guilty of felony without benefit of clergy. This statute was repealed in the lump by the 1 Ed. 6. c. 12., which repealed all statutes making any offences felony from the first year of the reign of king Henry the eighth. And the substance thereof was re-enacted, with a mitigation of the penalty, by stat. 3 & 4 Ed. 6. c. 15. Which statute expiring, the 5 El. c. 15. was enacted as above. the rites of the church. Public Worship. [1 Ed. 6. c. 1.-1 Mar. sess. 2. c. 3.— 1 J. 1. c. 4.—13 & 14 C. 2. Impugners of IMPUGNERS of the book of common prayer, of the thirty-nine articles, of the rites and ceremonies of the church of England, of the episcopal government of the church, or of the form of ordering and consecrating archbishops and bishops, shall be ipso facto excommunicated, and not restored but upon repentance, and public recantation. Can. 4, 5, 6, 7, 8. Ed. 6. c. 1. Speaking irreverently of the sacrament. Indictable. 22 G. 2. c. 33. in the navy. By stat. 1 Ed. 6. c. 1., if any person shall speak irreverently of the sacrament of the Lord's supper, he shall suffer imprisonment, and make fine and ransom at the king's will. And three justices (1 Q.) may take information by the oaths of two witnesses; and afterwards, at the sessions, may inquire thereof by the oath of twelve men upon indictment. And they shall, at the sessions where the offender shall be indicted, direct a writ to the bishop to appear by himself or deputy at the trial. But no person shall be molested, but within three months after the offence committed. All commanders, captains, and officers at sea, shall cause the Public worship public worship of Almighty God according to the liturgy of the church of England, to be performed in their respective ships; and prayers and preachings by the chaplains shall be performed diligently. Stat. 22 G. 2. c. 33. art. 1. 13 & 14 C. 2. c. 4. Qualifications of lecturer. 1 Mar. sess. 2. c. 3. Disturbers of By stat. 13 & 14 C. 2. c. 4. §§ 19, 20, 21., no person shall be received as a lecturer, or allowed to preach or read any lecture or sermon, without licence from the bishop, and assenting to the thirty-nine articles, and reading the common prayer, before his first sermon, and on the first lecture day of every month; on pain of three months' imprisonment for every offence, by two justices of the peace, on certificate from the bishop of the offence committed. By stat. 1 Mar. sess. 2. c. 3., if any person shall disturb a preacher in his sermon by word or deed, he shall be apprehended and carried before a justice of the peace, who shall commit him to public worship. safe custody, and within six days he and another justice shall examine the fact, and if they find him guilty by two witnesses, or confession, they shall commit him to gaol for three months, and further to the next sessions; and if at the sessions he repents and is reconciled, he shall be discharged on finding sureties for his Punishment. good behaviour for a year; if not, he shall be continued in gaol till he does; saving the ecclesiastical jurisdiction; and he shall not be punished both ways. This statute, though made in queen Mary's reign, extendeth to the divine service now established. Gibs. 372. Reading no tices in church. Williams v. Glenister, E. 5 G. 4., 2 B. & C. 699. Trespass for assault and false imprisonment. A parish clerk refused to read in church a notice which was presented to him for that purpose, and the person presenting it read it himself at a time when no part of the church service was actually going on, viz. whilst the minister was walking from the communion table to the vestry room. The defendant, a constable, by order of the minister, took him out of the church, and detained him an hour after the service was over. He then allowed plaintiff to go, on his promise to attend a magistrate the next day, which he accordingly did, but no complaint being made against him was discharged. Verdict for plaintiff. On motion for R. Ñ., the Rubric and stats. 1 M. sess. 2. c. 3. § 3. 1 W. & M. c. 18. § 18. were cited. - Per Abbott C. J. It appears to me, that the 1 M. sess. 2. c. 3. merely gave to the common law cognizance of an offence which was before punishable by the ecclesiastical law in order to be within that statute, the party must maliciously, wilfully, or of purpose molest the persons celebrating divine service. Had the notice been read by the plaintiff whilst any Question of part of the service was actually going on, we might have thought molesting the that he had done it on purpose to molest the minister; but the act person performhaving been done during an interval when no part of the service ing service; was in the course of being performed, and the party apparently supposing that he had a right to give such a notice, I am not prepared to say that the 1 M. sess. 2. c. 3. warranted his detention, in order that he might be taken before a justice of the peace. Neither does the case come within the toleration act, 1 W. & M. c. 18. That : only applies where the thing is done wilfully, and of purpose and of wilfully, maliciously to disturb the congregation or misuse the preacher. &c. disturbing The detention of the plaintiff after the time when the service a congregation. ended, was therefore illegal, and we ought not to disturb the verdict which has been found. R. R. punished. By stat. 1 W. & M. sess. 1. c. 18. § 18., "If any person or per- Disturbers of sons, at any time or times after the 10th day of June (1688), do religious worand shall willingly and of purpose, maliciously or contemptuously ship, how come into any cathedral or parish church, chapel, or other congregation permitted by this act, and disquiet and disturb the same, or misuse any preacher or teacher, such person or persons, upon proof thereof before any justice of peace, by two or more sufficient witnesses, shall find two sureties to be bound by recognizance in the penal sum of 50l., and in default of such sureties shall be committed to prison, there to remain till the next general or quarter sessions; and upon conviction of the said offence at the Conviction at said general or quarter sessions, shall suffer the pain and penalty sessions. of 201. to the use of the king's and queen's majesties, their heirs and successors." See also tit. Kiot. The court of K. B. refused to grant a certiorari to remove an indictment at the sessions, for a person not behaving himself modestly and reverently at the church during divine service; which, although punishable by ecclesiastical censures, yet the court conceived it a proper cause within cognizance of the justices of the Indictment may be removed by certiorari. Arresting clergymen while doing service, &c. veyors. peace. And this was before the above-mentioned statute of the 1 W. & M. c. 18.-1 Keb. 491.-But in R. v. Hube and others, 5 T. R. 542., it was held that an indictment upon stat. 1 W. & M. c. 18. at the quarter sessions may before verdict be removed by certiorari into the K. B., and upon conviction of several defendants, each is liable to the penalty of 201. See 3 Burn's Eccl. Law, 8th ed. by Tyrwhitt, tit. Public Worship, § 3. By 9 G. 4. c. 31. § 23., "If any person shall arrest any clergyman upon any civil process while he shall be performing divine service, or shall with the knowledge of such person be going to perform the same, or returning from the performance thereof, every such offender shall be guilty of a misdemeanor, and being convicted thereof shall suffer such punishment by fine or imprisonment, or by both, as the court shall award.” The arrest, though it may be punished, is still good in law, unless on a Sunday, so that if a rescous be made, and thereby any person shall be killed, the killing is murder. Wats. c. 34., referring to a similar enactment in 1 R. 2. c. 15. See tit. Popery. Purveyors. [12 C. 2. c. 24.] Abuses of pur- ANCIENTLY the king's court was supplied with necessaries from the ancient demesnes of the crown; and in respect thereof, the tenants of those lands had many privileges, which they still enjoy. But this method being found to be troublesome and inconvenient, was by degrees disused; and afterwards the king was wont to appoint certain officers to buy in provisions for his household, who were called purveyors, and claimed many privileges by the prerogative of the crown. 2 Inst. 542. 1 Haw. c. 47. § 1. Purveyance taken away. 12 C. 2. c. 24. purveyance. The several laws which restrained the exorbitance of these purveyors, make up a pretty large title in the old books; but these laws proving ineffectual to remedy the evil complained of, at length by stat. 12 C. 2. c. 24. purveyance was entirely taken away; by which it is enacted, that no sum of money or other thing shall be taken for any provision, carriages, or purveyances for the king. Taking things And that no person under colour of purveyance shall take any under colour of timber, fuel, cattle, corn, grain, malt, hay, straw, victual, cart, carriage, or other thing, without consent of the owner; nor shall require any to furnish any horses, oxen, or other cattle, carts, ploughs, wains, or other carriages, for the use of the king or his household, without the owner's consent. Indictable. On pain of being committed to gaol by a justice of the peace, and the constable, until the next sessions, to be there indicted; and also of paying to the party treble damages and treble costs on an action at law. Rape. RA APE is when a man hath carnal knowledge of a woman, by Rape, what. force and against her will. 2 Inst. 180. 1 Hawk. c. 41. § 1. last. The offence of a rape is no way mitigated by shewing that the Consenting at woman at last yielded to the violence, if such her consent were forced by fear of death or of duress. 1 Haw. c. 41. § 2. Ravishing a common strum pet. Also, it is not a sufficient excuse in the ravisher to prove that the woman is a common strumpet; for she is still under the protection of the law, and may not be forced. 1 Haw. c. 41. §. 2. Nor is it any excuse that she consented after the fact. 1 Haw. Consenting c. 41. § 2. after the fact. The notion that if a woman conceived it could not be a rape, Non-concepon the ground that she must in that case have consented, may now tion. be considered as quite exploded. 1 East, P. C. 445. 1 Russ. 557. Having carnal knowledge of a married woman under circum- Personation of stances which induce her to suppose it is her husband; held, by a female's husmajority of eight to four judges, that it did not amount to a rape, but band. several of the eight judges intimated, that if the case were to occur again, they would advise the jury to find a special verdict.. Trin. Term, 1822, R. v. Jackson, Č. Č. R. 487. A husband cannot be guilty of a rape upon his wife, on account Crime of husof the matrimonial consent which she has given, and which she band as to his cannot retract. But he may be guilty as a principal by assisting wife. another person to commit a rape upon his wife. 1 St. Tr. 387. 1 Hale, 629.; cited 1 Russ. 557. II. Evidence on an Indictment of Rape. The party ravished may give evidence on oath, and is in law a The woman's competent witness; but the credibility of her testimony, and how oath. far forth she is to be believed, must be left to the jury, and is more or less credible according to the circumstances of fact that concur in that testimony. 1 Hale, 633. For instance, if the witness be of good fame; if she presently Circumstances discovered the offence, and made pursuit after the offender; shewn in favour of it. circumstances and signs of the injury, whereof many are of that nature that only women are the most proper examiners and inspectors; if the place wherein the fact was done were remote from people, inhabitants, or passengers; 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 Hale, 633. But, on the other side, if she concealed the injury for any con- Circumstances siderable time after she had opportunity to complain; if the place in disfavour of VOL. III. 3 A it. General observations. where the fact was supposed to be committed were near to inhabitants or common recourse or passage of passengers, and she made no outcry when the fact was supposed to be done, when and where it is probable she might be heard by others; or if a man prove himself to be in another place, or in other company, at the time she charges him with the fact; or if she be wrong in the description of the place, or swear the fact to be done in a place where it was impossible the man could have access to her at that time, as if the room were locked up, and the key in the custody of another person; these and the like circumstances carry a strong presumption that her testimony is false or feigned. 1 Hale, 633. In a work of this nature, it is not necessary to enter into a detail of the judicial opinions that have at different times been delivered on this subject; they are chronologically and correctly given at large in 1 East, P. C. c. 10. § 3. It is sufficient to state generally, that now the judges consider it to be the law of the (a) But see land, that emission (a) as well as penetration must take place to con9G.4.c.31.§18. stitute the offence. But though there must be an emission, it is infrà, 725. not necessary that there should be direct and positive evidence of that fact: this, like all other facts, may be established in proof by the circumstances attending it. In various cases the female cannot swear to the fact, though it take place; as in the instance of infants; or in the case of some adults, who may have been rendered senseless by the previous violence of the man, or of others, who are never conscious of the fact when it does take place. Without, however, entering more minutely into the discussion of such a subject, it will be a sufficient hint to magistrates before whom a person may be brought charged with this crime, to attend to this distinction: if penetration be proved, and it appear on the whole that the man gratified his passion and appeared to be satisfied, it will be evidence from which a jury would be directed to infer emission; and consequently in such a case the magistrates ought to commit the party to take his trial for the capital offence. But if, on the contrary, the man were disturbed or interrupted before he appeared to have completed his purpose, a jury would probably infer that there had been no emission; and in such a case the justices should commit or bind the party over to take his trial for a misdemeanor, (viz.) an attempt to commit a rape only. Infant a witness. At any age if of sufficient mental capacity. And with regard to penetration, it will be sufficient to make one observation only; that any penetration, however trifling, though it do not break the hymen, is sufficient for this purpose. R. v. Russen, O. B. Oct. 1777, 1 East, P. C. 438. But the contrary was stated to be the law by Gurney B. in a case in which the prisoner was convicted. Hereford Sum. Ass. 1832, R. v. Gammon, 5 C. & P. 321. It has been made a doubt, at different periods in the history of our courts of law, at what particular age an infant could be sworn to prove a rape, or an assault with intent to ravish her; and at one time a rule appears to have prevailed, that no child could be admitted as a witness under the age of nine years, and very few under ten. R. v. Travers, 1 Str. 700. R. v. Dunnel, 1 East's P. C. 442. But it appears now to be well established, that a child of any age, if capable of distinguishing between good and evil, may be examined upon oath; but that, whatever may be its age, it cannot be examined unless sworn. Brazier's case, Reading Spr. |