HAVING in the preceding chapter considered the principal crime, or public wrong, that can be committed against a private subject namely, by destroying his life; I proceed now to enquire into such other crimes and misdemesnors [sic], as more peculiarly affect the security of his person, while living.
OF these some are felonious, and in their nature capital; others are simple misdemesnors [sic], and punishable with a lighter animadversion. Of the felonies the first is that of mayhem.
I. MAYHEM, mahemium, was in part considered in the preceding volume, as a civil injury: but it is also looked upon in a criminal light by the law; being an atrocious breach of the king's peace, and an offence tending to deprive him of the aid and assistance of his subjects. For mayhem is properly defined to be, as we may remember, the violently depriving another of the use of such of his members, as may render him the less able in fighting, either to defend himself, or to annoy his adversary. . . . [Book IV, Ch. 15, p. 205]
II. THE second offence, more immediately affecting the personal security of individuals, relates to the female part of his majesty's subjects; being that of their forcible abduction and
III. A THIRD offence, against the female part also of his majesty’s subjects, but attended with greater aggravations than that of forcible marriage, is the crime of rape, raptus mulierum, or the carnal knowledge of a woman forcibly and against her will. . . .
"I
IV. WHAT has been here observed, 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.
I WILL not act so disagreeable part, to my readers as well as myself, as to dwell any longer upon a subject, the very mention of which is a disgrace to human nature. it will be more eligible to imitate in this respect the delicacy of our English law, which [p. 215] treats it, in it's [sic] very indictments, as a crime not fit to be named; "peccatum illud horrible, inter christianos non nominandum." A taciturnity observed likewise by the edict of Constantius and Constans: "ubi scelus est id, quod non proficit scire, jubemus insurgere leges, armari jura gladio ultore, ut exquisitis poenis subdantur infames, qui sunt, vel qui futuri sunt, rei." Which leads me to add a word concerning it's [sic] punishment.
THIS the voice of nature and of reason, and the express law of God, determine to be capital. Of which we have a signal instance, long before the Jewish dispensation, by the destruction of two cities by fire from heaven: so that this is an universal, not merely a provincial, precept. And our antient law in some degree imitated this punishment, by commanding such miscreants to be burnt to death; though Fleta says they should be buried alive: either of which punishments was indifferently used for this crime among the antient Goths. But now the general punishment of all felonies is the same, namely, by hanging: and this offence (being in the times of popery only subject to ecclesiastical censures) was made single felony by the statute 25 Hen. VIII. c. 6. and felony without benefit of clergy by statute 5 Eliz. c. 17. And the rule of law herein is, that, if both are arrived at years of discretion, agentes et consentientes pari poena plectantus [i.e., both the active and the passive partner are equally subject to the same punishment]
THESE are all the felonious offences, more immediately against the personal security of the subject. The inferior offences, or misdemesnors [sic], that fall under this head, are assaults, batteries, wounding, false imprisonment, and kidnapping.
V, VI, VII. WITH regard to the nature of the three first of these offences in general, I have nothing farther to add to what has already been observed in the preceding book of these [p. 216] commentaries; when we considered them as private wrongs, or civil injuries, for which a satisfaction or remedy is given to the party aggrieved. But, taken in a public light, as a breach of the king's peace, an affront to his government, and a damage done to his subjects, they are also indictable and punishable with fine and imprisonment; or with other ignominious corporal penalties, where they are committed with any very atrocious design. As in case of an assault with an intent to murder, or with an intent to commit either of the crimes last spoken of; for which intentional assaults, in the two last cases, indictments are much more usual, than for the absolute perpetration of the facts themselves, on account of the difficulty of proof: and herein, besides heavy fine and imprisonment, it is usual to award judgment of the pillory.
[p. 217]
The civil law punishes the crime of ravishment with death and confiscation of goods . . . [p. 210]
. . . And by statute 18 Eliz. c. 7. it is made felony without benefit of clergy: as is also the abominable wickedness of carnally knowing or abusing any woman child under the age of ten years; in which case the consent or non-consent is immaterial, as by reason of her tender years she is incapable of judgment or discretion. Sir Matthew Hale is indeed of opinion, that such profligate actions committed on an infant under the age of twelve years, the age of female discretion b common law, either with or without consent, amount to rape and felony; as well since as before the statute of Elizabeth: but the law has in general been held only to extend to infants under ten.
A MALE infant, under the age of fourteen years, is presumed by law incapable to commit rape, and therefore it seems cannot be found guilty of it. For though in other felonies malitia supplet aetatem, as has in some cases been shewn; yet, as to this particular species of felony, the law supposes an imbecility of body as well as mind. [p. 212]
SOURCE: William Blackstone, Commentaries on the Laws of England, Book the Fourth, Oxford: Printed at the Clarendon Press, 1769, Book IV, Chapter XI, pp. 205ú217.
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Rictor Norton (Ed.), "Blackstone's Commentaries, 1769," Homosexuality in Eighteenth-Century England: A Sourcebook. 26 November 2006 <http://rictornorton.co.uk/eighteen/1769blac.htm>.
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