CHAPTER XXXVII. THE FORCIBLE ABDUCTION OF WOMEN. § 614, 615. Introduction. 1 § 614. Abduction-Seduction-(Distinctions).-The wrong meant by the word "abduction," without the adjective, "may either be by fraud and persuasion, or open violence." Hence, with entire propriety, some of the English authors treat, under the title Abduction, of the offenses included both in this chapter and the next. We, in this country, have little to do with forcible abduction, as an offense distinct from kidnaping; so, for convenience, the preliminary explanations relating to it are placed in this chapter by themselves. § 615. How chapter divided.- We shall consider, I. The law of the offense; II. The procedure. I. THE LAW OF THE OFFENSE. § 616. Old English statutes.-By 3 Hen. 7, ch. 2, A. D. 1486,3 it was recited "that women as well maidens as widows and wives, having substances, etc.-have, for the lucre of such substances, been oftentimes taken by misdoers, contrary to their will, and after married to such misdoers, or to others by their assent, or defiled." Thereupon it enacted "that what person or persons from henceforth that taketh any woman so against her will unlawfully,- that is to say, maid, widow or wife,that such taking, procuring and abetting to the same, and also receiving wittingly the same woman so taken against her will, and knowing the same, be felony," etc. And 39 Eliz., ch. 9, 13 Bl. Com. 139. 2 Archb. Crim. Pl. & Ev. (19th Lond. ed.) 756-761; 1 Russ. Crimes (5th ed.), 883-898. The late editions of Hawkins have the separate title "Seduc tion." 1 Hawk. P. C. (Curw. ed.) 125-138. 3 For this statute, and expositions thereon, see 1 Hawk. P. C. (Curw. ed.), p. 123 et seq. And see Crim. Law, I, 8 555. deprived the principals and procurers of clergy. The substance of this statute, with some alterations, is now comprised in 24 and 25 Vict., ch. 100, § 53. § 617. Interpretations. The word "so," in the body of the above statute, was construed to make the preceding recitation a part of it. The taking must be for lucre, and the woman must either be an heir apparent or have property. Also force must be used, either at the taking or at the marriage or defilement, but not necessarily at both. Both the force and the marriage or defilement must occur in the county of the indictment; the mere taking there, without one or the other of these, not sufficing. Yet, within this distinction, a force begun in one county may be continuing in another, where the marriage or defilement transpires, and therefore sufficient. When the offense has been thus completed, it will not be purged by a subsequent consent of the woman. Her receivers are principals; those who receive the takers of her are only accessories after the fact.10 9 § 618. Whether common law with us.- As to whether this statute is common law in our states, we have no decisions."1 The Pennsylvania judges, in their report of English statutes in force, do not include this one; 12 and Kilty mentions it among the acts not found applicable in Maryland." As an abstract 1 Baker's Case, 12 Co. 100. 2 Bruton v. Morris, Hob. 182, 183; Case of Stealing Women, 12 Co. 20. 34 Bl. Com. 208. And see Reg. v. Barratt, 9 Car. & P. 387. 13 Kilty, Rep. of Stat. 67. He says: "This offense was generally known in England under the term of stealing an heiress. The statute must be considered in connection with 39 4 Baker's Case, 12 Co. 100; 1 Hawk. Eliz., ch. 9, which took away the benP. C. (Curw. ed.), p. 124, § 4. 54 BL. Com. 208, 209. 61 Stark. Crim. Plead. (2d ed.) 2; 1 East, P. C. 453; Fulwood's Case, Cro. Car. 488. efit of clergy. The question as to the extension of these statutes, if considered independent of what is to be inferred from the records of the courts, would be open to considerable doubt; 7 Baker's Case, 12 Co. 100; Case of for, although the felony was created Stealing Women, 12 Co. 20. 8 Fulwood's Case, Cro. Car. 488. And see Crim. Law, I, § 733. 10 Baker's Case, 12 Co. 100; Case of Stealing Women, 12 Co. 20. 11 Crim. Law, I, § 555. and made more penal by acts of parliament, yet they were enacted long before the settlement of the province, and, although the provisions are highly penal, the offense may be viewed as one of a heinous nature, and as being liable to be perpetrated 12 Report of Judges, 3 Binn. Ap. 595, in this country as well as in England. 617. But I have not been able to discover question, this statute was as applicable to our colonies as to the mother country. But because of the poverty of the early settlers there was no temptation to commit the offense, and the occasion for its enforcement could not arise. This sort of want of occasion is not generally deemed to exclude from our law a provision of the English. Still, on the whole, the chances of inducing a court to accept this enactment as a part of our law would be problematical. § 619. Aside from this statute,- this offense may, where sufficient force is employed, amount to common-law kidnaping; or, if not technically such, to false imprisonment, or other analogous misdemeanor. And an unsuccessful attempt to commit it is indictable. Thus, an English case lays it down, that attempting to carry away forcibly a woman of great fortune is a great misdemeanor at the common law; for "sure," says Lord Holt, "this concerns all the people in England who would dispose of their children well." 2 § 620. At present in England,- this whole ground is so covered by statutes as to leave little occasion for resort to the unwritten law.3 § 621. With us, it is so to a slight extent; so slight that whatever of written law we have relating to it will be considered in our next chapter. II. THE PROcedure. § 622. Indictment.- The indictment, to follow in substance Chitty's exposition, sets forth that the woman had lands, or goods, or was heir apparent; and was married or defiled. And it avers the place and manner of the taking; also that it was any instance of a prosecution under these statutes, either in the province or in the state, and the most certain conclusion seems to be that they were not in force therein. There were some cases of prosecutions under the statute 4 and 5 Phil. & M., ch. 8 [considered under the title Seduction, post, §§ 627, 628], for what is termed an inferior degree of the same kind of offense." 1 Crim. Law, I, § 555; II, §§ 746 5 2 Rex v. Pigot, Holt, 758. 3 Stat. 24 & 25 Vict., ch. 100, §§ 5355; ch. 95, repealing prior statutes. See Greaves, Crim. Law Acts, 78; Reg. v. Burrell, Leigh & C. 354; Reg. v. Timmins, Bell, C. C. 276. 43 Chit. Crim. Law, 818, note. And see Reg. v. Swendsen, 14 How. St. Tr. 559; Reg. v. Bayton, 14 How. St. Tr. 597. 5 Fulwood's Case, Cro. Car. 484 751. for lucre. "But it is not necessary to state that it was done with an intention to marry or defile; because this is not required by the words of the act, nor would the absence of it lessen the injury.? It seems, however, to be both safe and usual to insert it." 3 § 623. Woman as witness.-The marriage effected by force does not make the woman a wife, unless afterward, by voluntary cohabitation or otherwise, she ratifies it. Therefore she may be a witness against the man at his trial. Therefore, also, On attempt to debauch.-On an information for attempting to debauch a young lady, she was very properly admitted to testify in the defendant's favor." § 624. In conclusion,- these cases, like others, will present general questions of pleading and evidence, not best to be entered into a connection like this." 1 Bruton v. Morris, Hob. 182; 1 amination in evidence might be more Hawk. P. C. (7th ed.), ch. 41, § 5. questionable." 1 Hale, P. C. 661. 2 Fulwood's Case, Cro. Car. 488; 1 This would make the marriage good Hawk. P. C. (7th ed.), ch. 41, § 6. by reason of the subsequent consent thereby implied. 1 Bishop, Mar., Div. 31 Hale, P. C. 660. 41 Bishop, Mar., Div. & S., § 538 et & S., § 545. Still, it might be a ques seq. "Wakefield's Case, 2 Townsend, St. Tr. 112, 2 Lewin, 279; 1 Bishop, Mar., Div. & S., § 512 and note; Fulwood's Case, 1 Hale, P. C. 650, 661, Cro. Car. 488; Rex v. Fezas, 4 Mod. 8; Brown's Case, 1 Vent. 243. Speaking of the last cited case, Lord Hale says: "But had she freely without constraint lived with him that thus married her any considerable time, her ex 452 tion whether she should not be re- 7 See Reg. v. Barratt, 9 Car. & P. 387; S. v. Tidwell, 5 Strob. 1. CHAPTER XXXVIIL SEDUCTION OF WOMEN. § 625, 626. Introduction. 627-643. Law of the offense. § 625. Conspiracy, distinguished.- We are not to treat in this chapter of conspiracies. But it may be borne in mind that a conspiracy to bring about the carnal defilement of a young woman, or even, if she is under guardianship or the legal restraint of parents, being a minor, to procure her marriage without the consent of those entitled to forbid the nuptials, is, both in England and this country, indictable at the common law.1 § 626. What for this chapter and how divided.— Having in the last chapter considered only forcible abduction, we shall in the present take into view most of what is ordinarily contemplated under the joint heads of Abduction and Seduction; as to, I. The law of the offense; II. The procedure. I. THE LAW OF THE OFFENSE. § 627. Old English statute.-In 1557 the statute of 4 and 5 Phil. and M. (ch. 8), after a long recitation of grievances in section 1, made it, in section 2, punishable "to take or convey away, or cause to be taken or conveyed away, any maid or woman-child unmarried, being under the age of sixteen years, out of or from the possession, custody or governance, and against the will, of the father of such maid or woman-child, or of such person or persons to whom the father of such maid or womanchild by his last will and testament or by any other act in his 1 Crim. Law, II, § 235; Twitchell v. Com., 9 Pa. St. 211; Anderson v. Com., 5 Rand. 627, [16 Am. D. 776;] Respublica v. Hevice, 2 Yeates, 114; Mifflin v. Com., 5 Watts & S. 461, [40 Am. D. 527;] Rex v. Thorp, 5 Mod. 221; Reg. v. Blacket, 7 Mod. 39; Reg. v. Mears, 1 Eng. L. & Eq. 581, 2 Den. C. C. 79, Temp. & M. 414; Rex v. Ossulston, 2 Stra. 1107. And see Crim. Law, I, §§ 501, 502, 767, 768; Grey's Case, 9 How. St. Tr. 127; s. a. nom. Gray's Case, Skin. 81; S. v. Savoye, 48 Iowa, 562. |