complaint. During the former period alſo it was held for law[1], that the woman (by conſent of the judge and her parents) might redeem the offender from the execution of his ſentence, by accepting him for her huſband; if he alſo was willing to agree to the exchange, but not otherwiſe.
In the 3 Edw. I. by the ſtatute Weſtm. 1. c. 13. the puniſhment of rape was much mitigated: the offence itſelf being reduced to a treſpaſs, if not proſecuted by the woman within forty days, and ſubjecting the offender only to two years impriſonment, and a fine at the king's will. But, this lenity being productive of the moſt terrible conſequences, it was in ten years afterwards, 13 Edw. I. found neceſſary to make the offence of rape felony, by ſtatute Weſtm. 2. c. 34. 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 and 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 by the common law, either with or without conſent, amount to rape and felony; as well ſince as before the ſtatute of queen Elizabeth[2]: 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 a 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 ſuppofes an imbecillity of body as well as mind[3].
