[611]. This statute was passed in consequence of a Wager of Battle offered by Abraham Thornton, appealed for the murder of Mary Ashford. The decision of causes by combat was always absurd, and it was certainly full time that it should be abolished; but it is not equally evident that the appeal ought to have been taken away altogether, especially in cases of murder. The preamble of the Act states the proceeding to “have been found to be oppressive;” certainly it was also rare; in above one hundred years there had been only one execution on appeal, and when the case of the Kennedies (see Bigby v. Kennedy, 5 Bur. 2648) is considered, it may fairly be doubted whether some constitutional check ought not to have been retained against the misdirection of the Royal prerogative. See also the case of M‘Quirk for the murder of Mr. Clarke.
[612]. The injuries thus occasioned, consist in rupture of the hymen, swelling, contusion, inflammation, or laceration of the parts, discharge of blood; and in persons of extreme youth, the laceration of the perineum is said to have sometimes occurred; and as Rape cannot be completed without considerable violence, we should also expect to find marks of force in other parts of the body, such as bruises about the arms and thighs; but in appreciating the value of such indications, let the practitioner remember, that the greater part of them may occur where the connexion has taken place with the consent of the female, or they may even be the effect of disease. Dr. Percival relates a case where the inflammation of the pudenda, and symptoms of defloration occurred in a child four years old, which occasioned her death; there were strong reasons for suspecting that she had been injured by a boy of fourteen years of age, and he was accordingly taken into custody; but the case received elucidation from several others of a similar nature having been shortly afterwards received into the same hospital, and of whose nature no doubt could be entertained. When Rape has been committed, gonorrhœa, or lues venera are sometimes communicated, especially in cases of young children, in consequence of a very general opinion among the lower libertines of the male sex, that the best possible cure for this disease, is intercourse with a virgin; if then the accused should be found free from disease, where the female is contaminated, and vice versa, it affords a strong presumption of his innocence; in conducting, however, such an investigation, there are several sources of fallacy, with which it is the duty of the medical enquirer to be fully acquainted; he should know, that purulent discharges, from other causes, do take place in children; and on the other hand that a person, in whom no appearance of existing venereal infection can be discovered, may communicate disease to others; this fact was ascertained by Mr. John Hunter, and its truth has been satisfactorily confirmed by the repeated observations of succeding surgeons. Women labouring under leucorrhœa may impart a discharge to the male; and Dr. Male observes, that the latter, affected by a gleety discharge in consequence of strictures, and other irritations in the urethra, may also affect the females.
[613]. Enfin il faut adjouter la comparison de l’organe offensant avec l’organe offensé; car, ainsi que dans les autres blessures, il n’est pas indifférent ici de présenter l’instrument à la plaie dont on le suppose coupable, 4 Fod. p. 359.
[614]. In this case it was stated that the law of France did not make any distinction between debauching a child under twelve, or a woman at maturity. However this may have been, the cases afterwards quoted shew that the breach of trust was severely visited on two priests. Arrêt du Parliament de Grenoble, qui condamna un prêtre d’être pendu, puis brulé, pour avoir abusé du sacrament de confession, porté ses mains sur le sein et autres parties de plus de cent femmes, pendant qu’il confessoit.
[615]. In France this crime is visited with additional severity when committed by a person in trust, or by a Clergyman; Penal Code, art. 333. This principle of apportioning punishment is recognised in our laws of Petit-treason, and robbery by servants: it might be well extended to Rape.
[616]. See also the case of John Church, convicted of an abominable attack. On the expiration of two years imprisonment to which he was sentenced, he resumed his methodistic (we cannot call them clerical) functions, and is now attended by large congregations, especially of old women!!!
[617]. See also 1 East. P.C. 441. and cases there.
[618]. Vide ante. p. 185.
[619]. Elle a infiniment plus de moyens pour se defendre que l’homme n’en a pour attaquer, ne fût ce que le movement continuel: Une Reine éluda autrefois l’accusation d’une plaignante: elle prit un fourreau d’épée, et le remuant toujours, elle fit voir à la dame qu’il n’etait pas possible de mettre l’épée dans le fourreau. 4 Foderè, 358.
[620]. Virginity in females has been very differently estimated by different nations; in the first ages of the Christian church so highly was it honoured and esteemed, that women were admitted to make solemn vows of it in public; and yet among the Jews it was held infamous for a woman to die a maid. In Peru and several other provinces in South America, we are assured by Pedro de Cieca, in the history of the Incas, &c. that men never marry, but on condition that the next relation or friend of the maid shall undertake to take away her virginity; and our countryman, Lawson, relates the like of some of the Indian nations of Carolina—So little is the Flos Virginis valued in some places!