Page:William Blackstone, Commentaries on the Laws of England (4th ed, 1770, vol IV).djvu/224

212 complaint. During the former period alo it was held for law, that the woman (by conent of the judge and her parents) might redeem the offender from the execution of his entence, by accepting him for her huband; if he alo was willing to agree to the exchange, but not otherwie.

the 3 Edw. I. by the tatute Wetm. 1. c. 13. the punihment of rape was much mitigated: the offence itelf being reduced to a trepas, if not proecuted by the woman within forty days, and ubjecting the offender only to two years imprionment, and a fine at the king's will. But, this lenity being productive of the mot terrible conequences, it was in ten years afterwards, 13 Edw. I. found neceary to make the offence of rape felony, by tatute Wetm. 2. c. 34. And by tatute 18 Eliz. c. 7. it is made felony without benefit of clergy: as is alo the abominable wickednes of carnally knowing or abuing any woman child under the age of ten years; in which cae the conent or non-conent is immaterial, as by reaon of her tender years he is incapable of judgment and dicretion. Sir Matthew Hale is indeed of opinion, that uch profligate actions committed on an infant under the age of twelve years, the age of female dicretion by the common law, either with or without conent, amount to rape and felony; as well ince as before the tatute of queen Elizabeth : but the law has in general been held only to extend to infants under ten.

infant, under the age of fourteen years, is preumed by law incapable to commit a rape, and therefore it eems cannot be found guilty of it. For though in other felonies malitia upplet aetatem, as has in ome caes been hewn; yet, as to this particular pecies of felony, the law uppofes an imbecillity of body as well as mind. Rh