“Si enim ipſi raptores metu, vel atrocitate poenae, ab hujuſmodi facinore ſe temperaverint, nulli mulieri, ſive volenti, ſive nolenti, peccandi locus relinquetur; quia hoc ipſum velle mulierum, ab inſidiis nequiſſimi hominis, qui meditatur rapinam, inducitur. Niſi etenim eam ſolicitaverit, niſi odioſis artibus circumvenerit, non faciet eam velle in tantum dedecus ſeſe prodere.” But our Engliſh law does not entertain quite ſuch ſublime ideas of the honour of either ſex, as to lay the blame of a mutual fault upon one of the tranſgreſſors only: and therefore makes it a neceſſary ingredient in the crime of rape, that it muſt be againſt the woman's will.
Rape was puniſhed by the Saxon laws, particularly thoſe of king Athelſtan[1], with death: which was alſo agreeable to the old Gothic or Scandinavian conſtitution[2]. But this was afterwards thought too hard: and in it's ſtead another ſevere, but not capital, puniſhment was inflicted by William the conqueror; viz, caſtration and loſs of eyes[3]; which continued till after Bracton wrote, in the reign of Henry the third. But in order to prevent malicious accuſations, it was then the law, (and, it ſeems, ſtill continues to be ſo in appeals of rape[4]) that the woman ſhould immediately after, “dum recens fuerit maleficium,” go to the next town, and there make diſcovery to ſome credible perſons of the injury ſhe has ſuffered; and afterwards ſhould acquaint the high conſtable of the hundred, the coroners, and the ſheriff with the outrage[5]. This ſeems to correſpond in ſome degree with the laws of Scotland and Arragon[6], which require that complaint muſt be made within twenty four hours: though afterwards by ſtatute Weſtm. 1. c. 13. the time of limitation in England was extended to forty days. At preſent there is no time of limitation fixed: for, as it is uſually now puniſhed by indictment at the ſuit of the king, the maxim of law takes place, that nullum tempus occurrit regi: but the jury will rarely give credit to a ſtale
