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AND PROPER TO BE INCORPORATED.
213
of a county court, commanding them to sign and seal a bill of exceptions,
and reciting this statute.
The act of October 1778, Ch. 21, S. 14, directs, that
where the judges of courts of law shall be divided
in opinion, any person affected thereby shall be entitled to his bill of
exceptions, as if the opinion
of the court had been against him, and as allowed by law in other cases.
This statute is mentioned
in the letter from S. Chase. See also 1790, Ch. 42, and 1796, Ch.
67.
CHAP. 34. It is felony to commit a rape.--A married
woman elopeth with an advowterer.
--The penalty for carrying a nun from her house. (Part.)
The first branch of this statute made this offence
a felony as it anciently was, although a different
punishment had been substituted by the statute Westminster 1, 3 Edw. 1,
Ch. 13. It is well known,
that prosecutions for this crime have been made under this statute, both
in the province an din the
state. On the first settlement, when the extention of the English
statutes was opposed by the government
party, an act was passed (1642, Ch. 19,) ordaining punishment for what
were called certain
less capital offences, viz. all offences of homocide, piracy, robbery,
burglary, sacrilege, sodomy,
sorcery, rape, polygamy and larceny, which were to be determined by the
judge as near as might be
to the laws of England; but in 1665, there was an indictment for a rape,
which concluded against
the form of this statute by name. The next cases were in 1669 and
1682, both of which concluded
against the statute, and as the person was sentenced to be hanged in the
latter case, it is to be presumed
that the statute of Elizabeth 18, Ch. 7, was also referred to, as it was
by that statute, that the
offender was ousted of his clergy. There were several other cases
where the offenders were capitally
convicted. I have not met with any instance before the revolution,
of a prosecution under the
4th section of the statute of Elizabeth, for the abuse of a woman child,
under the age of ten years;
but the inference may be, that the offence was not committed, rather than
that one part of a statute
was adopted, and another equally applicable to the situation of the country
rejected. This statute
was therefore in force in the province and in the state, and remains so
as to such offences committed
before the passing of the act of 1809, concerning crimes and punishments,
(Ch. 138,) unless under
the last section thereof, the person convicted shall openly pray the court,
that sentence may be pronounced
agreeably to the provisions of the said act. By the 4th section of
the said act, the punishment
for this offence (and of the accessary before) is death by hanging, or
confinement in the penitentiary
for not less than one year, or more than twenty-one years, and therefore
this statute (as to
future offences,) is not proper to be introduced and incorporated with
our laws; but the part of this
statute respecting a woman eloping with an advowterer, (a term used
by old authors for adulterer,)
has been, and still is in force. The last part, as to carrying away
a nun, was never in force in the
province. See as to a woman eloping, 2 Bac. Abt. title Dower, F.
CHAP. 37. No distress shall be taken but by bailiffs
known and sworn.
This statute is stated in 2 Inst. 445, to be in affirmance
of the common law. On examining Bacon's
Abt. and several other books, it appears not to be noticed therein; but
in 3 Bl. Com. 11, it is stated
that when a person intends to make a distress, he must by himself or his
bailiff enter on the demised
premises.
As part of the law relative to distresses, it appears
proper that this statute should be incorporated
with our laws.
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