126
with man or woman, shall be punished, if a man, by castration,* if a woman, by cutting through the cartilage of her nose a hole of one half inch in diameter at the least.
But no one shall be punished for Polygamy, who shall have married after probable information of the death of his or her hus- band or wife, or after his or her husband or wife, hath absented him or herself, so that no notice of his or her being alive, hath reached such person for seven years together, or hath suffered the punishments before prescribed for rape, polygamy, or sodomy.
Whosoever on purpose, and of malice forethought, shall maim† another, or shall disfigure him, by cutting out or disabling the tongue, slitting or cutting off a nose, lip or ear, branding, or other- wise, shall be maimed, or disfigured in like‡ sort: or if that cannot
In Dyer, 304. a man was indicted, and found guilty of rape on a girl of seven years old. The court ‘doubted of the rape of so tender a girl; but if she had been nine years old, it would have been otherwise.’ 14.Eliz. Therefore the statute 18. Eliz. c. 6. says, ‘ for plain declaration of law, be it enacted, that if any person shall unlawfully and carnally know and abuse any woman child, under the age of ten years, &c. he shall suffer as a felon, without allowance of clergy.’ Lord Hale, however, 1.P.C.630. thinks it rape independent of that statute, to know carnally, a girl under twelve, the age of consent. Yet 4.BI.212. seems to neglect this opinion; and asit was founded on the words of 3.E.1.c.13. and this is with us omitted, the offence of carnally knowing a girl unget twelve, or ten years of age, will not be distinguished from that of any other.
- Bracton, Fleta, &c.
† 22. 23. Car. 2.c.1. Maiming, was felony at the Common law. Britton, c. 25. ‘Mahemium autem dici poterit, ubi aliquis in aliqua parte sui corparis laesionem acceperit, per quam affectus sit inutilisad pugnandum: ut si manus amputetur, vel pes, oculus privetur, vel scerda de osse capitis lavetur, vel si quis dentes praecisores amiserit, vel castratus fuerit, et talis pro mahemiato poterit adjudicari.’ Fleta L.1.c.40. ‘ Et volons que nul maheme ne soit tenus forsque de membre tollet dount home est. plus feble a combatre, sicome del oy], ou de Ja mayn, ou del pie, ou de la tete debruse, ou de les dentz devant.’ Britton,c.25. For further definitions, see Bracton, L.3.c.24.§3.4. Finch L.B.3.c.12. Co.L.126.a.b.288. a.3.Bl.121. 4.Bl.205. Stamf. P.C.L.1.c.41. Ido not find any of these definitions confine the offence to wilful and malicious perpetrations of it. 22.23. Car.2.c.1. called the Coventry act, has the words ‘ on purpose and of malice forethought.’ Nor does the Common law prescribe the same punishment for disfiguring, as for maiming.
‡ The punishment was by retaliation. ‘Et come ascun appele serra de tele Co.37. says ‘note that Sodomy is with mankind.’ But Finch’s L.B.3.c.24. ‘Sodomitry is a carnal copulation against nature, to wit, of man or woman in the same sex, or of either of them with beasts.’ 12.Co.36. says, ‘ it appears by the antient authorities of the law that this was felony.’ Yet the 25.H.8. declares it felony, as if supposed not tobe so. Britton,c.9. says, that Sodom- ites are to be burnt. F.N.B.269.b. Fleta,L.1.c.37. says, ‘ pecorantes et Sodomitae in terra vivi confodiantur.’ The Mirror makes it treason. Besti- ality can never make any progress; it cannot therefore be injurious to society in any great degree, which is the true measure of criminality in foro civil, and will ever be properly and severely punished, by universal derision. It may, therefore, be omitted. It was antiently punished with death, as it has been latterly. Ll.Aelfrid.31. and 25.H.8.c.6. see Beccaria. § 31. Montesq.
