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replied, "In ten minutes;" that shortly after the chambermaid left the room, Loudon Gordon came to bed to her, and remained with her all night, and that the intercourse took place between them which usually takes place between husband and wife. The reason assigned by Mrs. Lee for this ready acquiescence was, that she was apprehensive that her life would have been endangered by a non-compliance, and that it would have created a scuffle at the inn, in which lives might be lost. Mr. Justice Lawrence, after inquiring of the counsel for the prosecution whether they had any further evidence to offer of force in the county of Oxford, and being answered in the negative, said he was of opinion that the case could not proceed any further; and addressing himself to the jury told them, that in order to constitute the offence with which the prisoners were charged, there must be a forcible taking, and a continuance of that force into the county where the defilement takes place, and where the indictment is preferred; that in the present case, though there appeared clearly to have been force used for the purpose of taking the prosecutrix from her house, yet it appeared also that, in the course of the journey, she consented, as she did not ask for assistance at the inns, &c. where she had abundant opportunities, and that as she was unable to fix time and place with any precision, this consent probably took place before the parties came into the county of Oxford, and that they must therefore acquit the prisoners. See Fulwood's case, Cro. Car. 485; 1 Hale, 660; 1 Hawk. P. C. c. 41. s. 9; 1 East, P. C. c. 11. s. 3.

5.

p. 453.

REX V. TWISTLETON AND OTHERS. M. T. 1649. K. B. 1 Lev.

257; S. C. 1 Sid. 387; 2 Keb. 432.

Information on 4 & 5 Ph. & M. c. 8. s. 2.* that the defendants An offence is were used and accustomed to be entertained at the house of J. S. and committed that the defendant Twistleton induced his daughter, (being his heir within the stat, apparent to an estate,) to marry him, and that Twistleton and the 4 & 5 P. & M. c. 8. by secretly other defendants conveyed her away from her father's house, and that inducing a fethe former married her without previously obtaining the parent's male under the consent. On a trial at bar it was proved that the defendant Twis- age of sixteen to tleton was a distant relation of J. S., of a small fortune, that he was elope from her in the habit of frequenting the house, and had paid his addresses to and marry the the young lady without the knowledge of the father, (who had de- prisoner without signed her for another suitor,) but no evidence was produced of any the consent of extraordinary blandishments having been resorted to beyond the com- the former.

The statute enacts, that it shall not be lawful to take or convey any maid or woman child unmarried, being within the age of sixteen years, from the custody and against the will of the father, or of such persons to whom he by his will or other act shall appoint or bequeath the keeping or education of such maid, &c. except such taking be had by or for her master or mistress, or guardian, in socage, without fraud. Id. s. 2.

Every person above the age of fourteen years who shall unlawfully take or convey any maid or woman child unmarried, and within the age of sixteen years, from the custody and against the will of the father, mother, or persons who then happen to have, by lawful means, the education or governance of such child, shall, on conviction, suffer two years' imprisonment, or pay such fine as is imposed by the Star Chamber. Id. s. 3. (Star Chamber Dissolved, 16 Char. 1. c. 10. s. 31.)

Every person who shall so take away, or cause to be taken away, and deflower any such maid or woman child, or shall against her will, or without the knowledge of her

father's house

jurisdiction of that court.

mon gallantries; and it was shown that the young lady met the principal defendant by appointment, and that they were then married. The Court told the jury, that as the lady was under sixteen years of age, and possessed of a large fortune, an offence had been committed within the terms of the information, and that they ought to find the defendants guilty. After some hesitation, the jury returned a verdict conformable with this direction,

6.

REX V. MOOR. M. T. 1678. K. B. 2 Mod. 128; S. C. 2 Lev. 179; 1 Freem. 444; 3 Keb. 708. 715. S. P. REX V. MARRIOTT. H. T. 1691. K. B. 4 Mod. 144; S. C. Carth. 263; 1 Show. 398.

An information or indictment will lie in the King's Bench on the 4 & 5 Ph. & M. c. 8. It was moved in arrest of judgment, that as the stat. 4 & 5 Ph. & M. there being no c. 8. provided "That the defendant should pay such fine as shall be words in the act assessed in the Star Chamber," this Court had not the power to excluding the impose the fine, because the information being founded on the statute the party must take the remedy as therein prescribed. In answer to this objection it was contended, that offences punishable in the Star Chamber are equally punishable in the Court of King's Bench, there being no negative words in the act to abridge the authority of the latter court, which is never restrained but when the statute directs before whom the offence shall be tried, and interdicts an inquiry from being instituted elsewhere. That it had been ruled, that where there is a prohibitory clause in a statute, and another clause which gives a penalty, if the party will go upon the prohibitory clause, he is not confined to the manner expressed in the act; but if he will go for recovery of the penalty, he must then pursue the mode directed by the statute. The first part of this statute is but declaratory of the common law; the second clause is introductive of a new law as to the court of Star Chamber, but it does not restrict this court, which might have punished the defendant if there had been no

The information charged that the defendant, being above the age of fourteen years, did take a young maid unmarried, and keep her three days, contrary to the form of the statute, &c. Upon this information he was found guilty.

father, if her father is alive, or of her mother, having the custody of such child, if the father be dead, by secret letters, messages, or otherwise, contract matrimony with such maiden or woman child, shall, being convicted, suffer five years' imprisonment; or pay such fine as is assessed by the Star Chamber, to go in moities to his Majesty and the parties grieved. 4 & 5 Ph. & M. c. 8. 8. 4.

The Star Chamber, justices of assize by inquisition or indictment, shall hear and determine the said offences; and the same process shall lie in such indictment, as on an indictment of trespass at common law. Id. s. 5.

If any woman child or maiden, being above the age of twelve years, and under that of sixteen, consents to such person that shall so make any contract of matrimony against this act, her next of kin to whom the inheritance should descend after her death shall have all such lands and hereditaments as she had in possession, reversion, or remainder, at the time of such consent, during the life of the person so contracting matrimony; and after his decease shall descend to such persons as they should have doue if this act had never been, other than to him who shall so contract matrimony. Id. s. 6.

This act shall not affect any custom or authority touching orphans within London, or any other city, borough, or town. Id. s. 7.

legislative provisions. The first clause is prohibitory, viz. " that it shall not be lawful for any person to take away a maid unmarried;" and upon this division of the act the present information is brought. The second clause is distinct, and directs the punishment, viz. “ upon conviction to suffer imprisonment for two years." By taking away the Court of Star Chamber this prohibitory clause is not repealed, a man may be indicted upon it without demanding the penalty; and the statute having directed that the offence shall be heard and determined before the king's council in the Star Chamber, or before the judge of assize, and there being no negative words to restrain this court; the chief justice, who is judge of assize in the county of Middlesex, may hear and determine the offence, and by consequence fine the party if he be found guilty.

Per Cur. This is a crime at common law: it is malum in se. (Vide 4 Mod. 125. contra and post.) But, admitting it to be an offence created by the statute, there being no negative words to prohibit the interference of this court, it hath a jurisdiction to punish the offence, even if the Star Chamber had not been abolished, for the party had his election to procced here, or before that tribunal, upon the prohibitory clause. By the words "the justices of assize" must be intended the justices of oyer and terminer.

See 1 Sty. 162; Vaugh. 177.

7.

The marriage must be claudestine, and to the disparagement of the heiress; hence

under the care of

her to his own

HICKS V. GORE. M. T. 1684. K. B. 3 Mod. 84. This was an action of ejectment to recover lands forfeited under it has been holden 4 & 5 Ph. & M. c. 8. It appeared at the trial that the young lady that if a parent to whom the property in question belonged had been placed, whilst place a daughter under sixteen years of age, by her mother, her guardian, under the another, who by protection of Lady G. and that Lady G. had, without obtaining the collusion marries mother's consent, publicly married the young lady to her son. Per Cur. The statute was made to prevent children from being son, the case will seduced from their parents or guardians by flattering or enticing words, promises, or gifts, and married in a secret way, to their dis- marriage be soparagement; but nothing of the kind appears in this case, for Dr. lemnized in a paHaseard proved the marriage to be at St. Clement's Church, at a rish church, at a canonical hour, that many people were present, and that the church canonical hour, doors were open whilst the ceremony was performed.

See observations on this case, i East, P. C. c. 11. s. 6. 1 Russel, 831.

8.

CALTHROP V. AXTEL. H. T. 1686. 3 Mod. 168.

P.

not be within the statute if the

and without any attempt at

457; privacy.

In this case it was said that there must be a continual refusal of If the guardian the guardian to accede to the marriage; for if he once agree, though he once consents to afterwards expresses his dissent, yet it is an assent within the statute. the marriage he (See 1 Hawk. P. C. 173; 1 Vern. 394; 2 Vern. 380.) In 1 East, P. C. c. 11. s. 6. p. 457. it is observed, that this was not the principal point before the Court, and required further confirmation.

9.

cannot after retract; qu.

An illegitimate daughter under

REX V. CORNFORTH. H. T. 1741. K. B. 2 Stra. 1162. The Court granted an information against the defendants for taking the care of her away a natural daughter under sixteen years of age, under the care of putative father

is within the stat, her putative father, being of opinion that it was within the third 4 & 5 Ph. & M. section of the 4 & 5 Ph. & M. c. 8.

c. 8.*

ficient in an indictment on in

formation on

See 1 T. R. 96; 11 East, 20; 4 Geo. 4. c. 17.

(C) INDICTMENT.

REX V. MOORE. M. T. 1675. K. B. 2 Lev. 179; S. C. 3 Keb. 708.715. Stating that the The information charged that the defendant and others, being defendant being above the age of fourteen, took one A. then being a virgin unmarried, above the age of possessed of moveable goods, and seised of lands of great value, out of fourteeen years, the custody of her mother, contrary to the form of the statute, &c. took, &c. is sufAfter verdict for the king, it was moved in arrest of judgment that the allegation "being above the age of fourteen years," was insufficient, as the adverb must be taken to refer to the time of the information, not of the caption; as in cases of forcible entry existens liberum tenementum refers to the time of the indictment, not to the time of the entry. This objection was overruled, the Court observing that in those cases the existent follows the verb ipsum disseisirit, but here the existens precedes the verb ceperunt, and must, therefore, be taken to relate to the time of the caption. (S. P. Rex v. Boyall, 2 Burr. 832.)

4 & 5 Ph. & M.

c. 8. s. 1. t

It is not necessary to say that the party was

It was afterwards urged that the words de rebus movilibus had been inserted in the information instead of mobilibus, and that its insertion had vitiated the information, but the Court said that the seisin of the possessed of both lands is sufficient, without mentioning the goods. lands and goods.

The party in

(D) EVIDENCE.

jured, if the force BROWN'S CASE. T. T. 1672. 1 Vent. 243; S. C. 3 Keb. 193.

continue till the

time of the mar

riage, will be a
good witness
against the of
fender, because

she is not his
wife de jure,
and may herself
swear to the
compulsion.

S. P.

SWENDSON'S CASE. 5 St. Tr. 456. FULLWOOD'S CASE. Cro. Car. 488. RAMSAY'S CASE, cited Rep. Temp. Hard. 83. On an indictment on the stat. 3 Hen. 7. c. 2. it was doubted whether the evidence of the party abducted and forcibly married could be admitted, because she was the wife of the defendant de facto, though not de jure; but the Court, seriatim, delivered their opinion

In Ratcliffe's case, 3 Co. 39. it was resolved, that a mother, notwithstanding her subsequent marriage, retains the guardianship of her child; she has in law the custody of her person, though the daughter has voluntarily left her several hours before the contract of marriage, and the consent of the step-father is altogether immaterial. 3 Co. 89. b.

+ The indictment of the offender under 3 Hen. 7. c. 2. must distinctly set forth that the woman abducted was possessed of lands or goods, or that she was heir apparent, as well as that she was actually married or defiled, such statements being necessary to bring a case within the preamble of the statute to which the enacting clause refers, by the legislature having adopted the words, "so against her will." (5 St. Tr. 468; 7 Mod. 101. 112; Cro. Car. 483. 485. 488. 492; 1 And. 115; Say. 59; 12 Co. 20. 100. 110.) The plan and manner of the taking must also be expressly stated in the proceedings; (Cro. Car. 485;) and that the abduction was for lucre. (Hob. 182.) But it is not essential to allege that the taking was with an intention to marry or defile the party, because this allegation is not required by the words of the act, nor would the absence of such an intention lessen the injury. (Cro. Car. 489; 1 Hawk. P. C. c. 41. s. 6.) It is said, however, to be both safe and usual to insert it. (1 Hale, P. C. 660.) See Precedents, Petersdorff's Index.

From this decision it would seem that if the actual marriage is valid, (or where the woman after the abduction consents to the marriage voluntarily, and not induced

that she was a competent witness, and observed, that as there was one continuing force upon the female from the commencement of the abduction till the marriage, whatever was effected during that violence could have no binding operation; and that from the nature of such crimes, if her testimony was rejected, the offence would frequently be permitted to pass unpunished.

See Rex v. Lord Audley, 1 St. Tr. 393; Perry's case, Bristol, 1794. cited 1 Hawk. P. C. c. 41. s. 13; 1 East, P. C. c. 11. s. 5. p. 455 ; 1 Hale, P. C. 302; Sir T. Raym. 1; Hutt. 116; 2 Stra. 1202; 1 Burr. 543; Rep. Temp. Hard. 83; 2 Leach, 563; 1 Bl. Com. 443 ; Gilb. Ev. 120; Peake, Ev. 174. 2d edit.; 1 Phil. Ev. 70. 3d edit. ; Bul. N. P. 286.

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(A) OF THE FREEHOLD.

REX V. KEMP. E. T. 1693. 4 Mod. 280.

Freehold lands are not allowed to be in abeyance except in parti- The law does not cular cases, as permitting it would conduce to make fractions of estates, admit estates to and prevent livery of seisin.

be in abeyance, except in cases ); of necessity.*

;

See Davis, 34; Rol. Rep. 502; Hob. 153. 171. 338; Plow. 556
Co. Lit. 348; 1 Co. Rep. 131; 2 Wils. 165; 1 Com. Dig. Abeyance
1 Vin. Ab. Abeyance; 2 Bl. Com. 107; 1 Saund. 260; 2 Saund. 382;
Fearnes, Rem. 41. post, tit. Lease.

by any precedent violence or menace,) her evidence ought not to be allowed. (1 Hale, P.C. 302; 4 Bl. Com. 209. contra.) Upon this subject, however, there are conflicting authorities; and the better opinion appears to be, that the offender should not be allowed to take advantage of his own wrong; and that the act of marriage, which is a principal ingredient of his crime, should not (by a forced construction of law) be suffered to disqualify the witness on whose testimony he might otherwise be convicted. 4 Bl. Com. 209; 1 Hale, 301; 1 East, P. C. 454.

A freehold is said to be in abeyance when there is no person in esse in whom it is vested. But it was a maxim of the feudal law that the freehold should never be in abeyance if it could be avoided. This rule was established for two reasons. 1st. That the superior lord might always know on whom he was to call for military services that were due for the feud; for otherwise the defence of the realm would have been considerably weakened. 2d. That every stranger who claimed a right to any particular lands might know against whom he ought to bring his præcipe, or real action, for the recovery of them; as no real action could be brought against any person but the freeholder. In consequence of this principle, a freehold estate cannot be created to commence in futuro, because in that case, the freehold would be an abeyance from the execution of the conveyance, until the moment when the estate so created was to com

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