Page images

43 Geo. 3. c.

cure miscar

tion for four

about the fifteenth or sixteenth week after conception. And Lawrence, J. said, that this was the interpretation that must be put upon the words, “quick with child,” in the statute ; and, as the woman had not felt the child alive within her before taking the medicine, he directed the jury to acquit the prisoner. (c)

The second section of the statute recites that it might some58.920; Ad- times happen that poison or some other noxious and destructive medicines, &c. substance or thing might be given, or other means used, with into women not tent to procure miscarriage or abortion, where the woman might child, with io. not be quick with child at the time, or it might not be proved that tent to pro

she was quick with child : and enacts, “that if any person or per

“sons shall wilfully and maliciously administer to, or cause to be riage, felony, punishable by

“ administered to, or taken by any woman, any medicines, drug, imprisonment, " or other substance or thing whatsoever, or shall use or employ, &c. whipping“ or cause or procure to be used or employed, any instrument or or transporta

6 other means whatsoever, with intent thereby to cause or procure teen years.

the miscarriage of any woman not being, or not being proved to

be, quick with child at the time of administering such things, or “using such means, that then and in every such case, the person “ or persons so offending, their counsellors, aiders, and abettors, “ knowing of and privy to such offence, shall be and are hereby “ declared to be guilty of felony, and shall be liable to be fined,

imprisoned, set in and upon the pillory, publicly or privately “ whipped, or to suffer one or more of the said punishments, or to “ be transported beyond the seas, for any term not exceeding “ fourteen years, at the discretion of the court, before which such “ offender shall be tried and convicted.”(d) It is observable, that the using an instrument, &c. with intent to procure a miscarriage, thus made a felony within clergy, is not noticed in the former section of the statute, which relates to the procuring the miscarriage

of a woman being quick with child. An infusion An indictment upon this sectlon of the statute charged the prior decoction

soner with having administered to a woman a decoction of a certain of a shrub are ejusdem gene

shrub called savin; and it appeared upon the evidence that the ris. The ques. prisoner prepared the medicine which he administered, by pouring tion upon the

boiling water on the leaves of a shrub. The medical men who second section of the statute were examined stated, that such a preparation is called an infusion, is whether any and not a decoction, (which is made by boiling the substance in master mithing the water) upon which the prisoner's counsel insisted that he was tered to pro

entitled to an acquittal, on the ground that the medicine was mis. cure abortion. described. But Lawrence, J. overruled the objection, and said

that infusion and decoction are ejusdem generis, and that the variance was immaterial : that the question was, whether the prisoner administered any matter or thing to the woman to rocure

abortion. (e) And it is not In the same case, witnesses having been called on behalf of the necessary,

prisoner to prove that the shrub he used was not savin, the counsel upon an in

(c) Rex v. Phillips, Monmouth Sum. 75. And upon an indictment for Ass. 1812. cor. Lawrence, J. 3 Campb. murder, if the death be laid to have

been by one sort of poison, and it turn (d) The punishment of the pillory out to have been by another, the difis now taken away, by the 56 Geo. 3. ference will not be inaterial. Ante,

(e) Rex v. Phillips, 3 Cainpb. 74,


c. 138.


[ocr errors]
[ocr errors]

for the prosecution insisted that he might, notwithstanding, be dictment on found guilty upon the last count of the indictment, which charged the statute, that he administered a large quantity“ of a certain mixture, to the charging the " jurors unknown, then and there being a noxious and destructive prisoner with

thing.The prisoner's counsel objected that, unless the shrub having ada was savin, there was no evidence that the mixture was “noxious “a certain “ and destructive.” Lawrence, J. held, that in an indictment on mixture, this clause of the statute, it was improper to introduce these “unknown, words; and that though they had been introduced, it was not ne- then and

" there being cessary to prove them. And he further said, “it is immaterial

“a noxious “ whether the shrub was savin or not, or whether or not it was “and decapable of procuring abortion, or even whether the woman was “structive

“thing," to actually with child. If the prisoner believed, at the time, that

prove that the “ it would procure abortion, and administered it with that intent, mixture was " the case is within the statute, and he is guilty of the offence noxious or “ laid to his charge.”(f)

destructive, (f) Rex v. Phillips, 3 Campb. 76. the young woman an innocent draught was with child. The prisoner had previously been tried for the purpose of amusing her, as she upon the first section of the statute, had threatened to destroy herself, unfor the capital charge, and acquitted. less enabled to conceal her shame ; See ante, 553. Upon this second in- and the jury returned a verdict of dictment he urged that he had given Not guilty.


or even that the woman





Of Rape.

Definition of RAPE has been defined to be the having unlawful and carnal knowrape.

ledge of a woman, by force, and against her will. (a) Made a capital This offence has, for many years past, been justly visited with offence by 18 capital punishment : but it does not appear to have been regarded Eliz. c. 7. 8. 1.

as equally heinous at all periods of our constitution. Anciently, indeed, it appears to have been treated as a felony, and, consequently, punishable with death : but this was afterwards thought too hard ; and, in its stead, another severe but not capital punishment was inflicted by William the Conqueror, namely, castration and loss of

which continued till after Bracton wrote, in the reign of Henry III.(b) The punishment for rape was still further mitigated, in the reign of Edward I., by the statute of Westm. 1. c. 13. which reduced the offence to a trespass, and subjected the party to two years' imprisonment, and a fine at the King's will. This lenity, however, is said to have been productive of terrible consequences; and it was, therefore, found necessary, in about ten years afterwards, and in the same reign, again to make the offence of forcible rape a felony, by the statute Westm. 2. c. 34. The punishment was still further enhanced by the statute 18 Eliz. c. 7. s. 1., which enacts, that any person committing felonious rape or ravishment, and found guilty by verdict, or outlawed, or confessing the crime upon arraignment, shall suffer death without benefit of clergy. And an indictment for this offence may be prosecuted at any time, and notwithstanding any subsequent assent of the party grieved. (c)


eyes ;

(a) i Hawk. P. C. c. 41. s. 2. T Hale P. C. c. 41. s. 11. 1 Hale 627. Bract. 627, 628. Co. Lit. 123 b. 2 Ipst. 180. lib. 3. c. 28. Leg. Gul. 1. I. 19. 3 Inst. 60. 4 Blac. Com. 210. 1 East. Wilk. Leg. Anglo-Sax. 222, 290. P. C. c. 10. s. 1. p. 434.

(c) 1 Hale 631, 632. 1 East, P. C. c. (0) 4 Blac. Com. 211. 1 Hawk. 10. s. 9. p. 446.

there may

All who are present, aiding and assisting a man to commit a Of aiders and rape, are principal offenders in the second degree, whether they

accessories. be men or women; and they are also ousted of clergy. (d) And

be accessories before and after in this offence; for though it be made felony by a statute, which speaks only of those who commit the offence, yet accessories, before and after, are consequentially included : but such accessories have their clergy. (e)

The law presumes, that an infant, under the age of fourteen Of persons years, is unable to commit the crime of rape; and, therefore, it capable of seems that he cannot be guilty of it. () This doctrine, however, rape. proceeds upon the ground of impotency, rather than the want of discretion; and such infant may, therefore, be a principal in the second degree, as aiding and assisting in this offence, as well as in other felonies, if it appear by sufficient circumstances, that he had a mischievous discretion. (8) A husband cannot be guilty of a rape upon his wife, on account of the matrimonial consent which she has given, and which she cannot retract : but he may

be guilty as a principal by assisting another person to commit a rape upon his wife ; for though in marriage the wife has given up her body to her husband, she is not by him to be prostituted to another. (h) Where a party took a woman by force, compelled her to marry him, and then had carnal knowledge of her by force, it appears to have been holden, that she could not maintain an appeal of rape against her husband, unless the marriage were first legally dis

. solved: but that when the marriage was made void ab initio, by a declaratory sentence in the ecclesiastical court, the offence became punishable, as if there had been no marriage. (i) The forcible taking away and marrying a woman against her will is, however, made felony by the statute 3 Hen. 7. c. 2.(j)

The offence of rape may be committed, though the woman at of the persons last yielded to the violence, if such her consent was forced by fear upon whom of death or by duress. (k) And it will not be any excuse that she rape mare de was first taken with her own consent, if she were afterwards forced against her will; nor will it be an excuse that she consented after the fact, or that she was a common strumpet, or the concubine of the ravisher: for she is still under the protection of the law, and may not be forced. (a) Circumstances of this kind, however, though they do not necessarily prevent the offence from amounting to a rape, yet are material to be left to the jury, in favour of the party accused, especially in doubtful cases. (1) The notion that if the woman conceived it could not be a rape, because she must, in such case, have consented, appears to be quite exploded. (m)

(d) Rex v. Vide and oth Fitz. Tri. 387. Hale 629 Hutt. 116. 1 Corone, pl. 86. I Hawk. P. C. c. 41. Str. 633. s. 10. Lord Baltimore's case, 4 Burr. (i) i Hale 629. 2179. I Hale 628, 633. 1 East. P.C. (j) Post. Chap. viii. c. 10. s. 1. p. 435. Rex v. Burgess and (1) i Hawk. P. C. c. 41. s. 6. 1 East. others, Trin. T. 1813, post, 561. P. C.c. 10. s. 7. p. 444.

(e) i Hale 631, 632, 633. As to ac- (a) i Hawk. P. C. c. 41. s. 7. I East. cessories being consequentially in- P. C. c. 10. s. 7. p. 444, 445. 4 Blac. cluded, see ante, 32.

Com. 213. (f) i Hale 630. Ante, 3.

(l) 1 East. P. C. c. 10. s. 7. (g) Id. ibid.

(m) i Hale 631. 1 Hawk. P.C.C.41. (h) Lord Castlehaven's case, i St. . 8. 1 East, P. C. c. 10. s. 7. p. 445.

p. 445.

A question lately arose, whether having carnal knowledge of a married woman, under circumstances which induce her to suppose it is her husband, amounts to a rape. The prisoner broke and entered a house by night, in order to have connection with the owner's wife if he could pass as her husband, but not meaning to force her if she discovered the fraud; he was in the act of copulation when she made the discovery, and immediately and before completion he desisted. Upon an indictment for burglary with intent to commit a rape, the jury found that he entered with the intent to pass for the woman's husband, and to have connection with her if she did not make the discovery, and to desist if she did. Upon a case reserved, four of the Judges thought that the having carnal knowledge of a woman whilst she was under the belief of its being her husband would be a rape; but the other eight Judges thought that it would not: and Dallas, C. J. pointed out forcibly the difference between compelling a woman against her will, when the abhorrence which would naturally arise in her mind was called into action, and beguiling her into consent and co-operation. But several of the eight Judges intimated that if the case should occur again, they would advise the jury to find a

special verdict. (a) Of the carnal It is agreed that there must be penetratio, or res in re, in order knowledge to constitute the “ carnal knowledge,” which is a necessary part necessary to constitute the of this offence. (n) But a very slight penetration is sufficient. offence. Thus, where it was proved on behalf of a prisoner, who was

charged with having ravished a young girl, that the passage of her parts was so narrow that a finger could not be introduced; and that the membrane called the hymen, which crosses the vagina, and is an indubitable mark of virginity, was perfectly whole and unbroken; but it was admitted that the hymen is in some cases an inch and in others an inch and a half beyond the orifice of the vagina; Ashhurst, J. left it to the jury to say whether any penetration were proved. And the Judges afterwards held upon a conference, (De Grey, C. J. and Eyre, B. being absent,) that this direction was perfectly right; and that the least degree of penetration is sufficient, though it may not be attended with the

deprivation of the marks of virginity.(o) Of emissio But whether or not there must be emissio seminis, in order to seminis.

constitute a rape, is a point which has been much doubted, and upon which very different opinions have been holden. (p) The later cases differ also upon this question. Thus, in a case of sodomy, which is governed by the same principles as rape, six Judges held, upon a special verdict finding penetration but the emission out of the Ejay, that both emission and penetration were necessary: while on the other hand five Judges thought that the injectio seminis was not necessary; and they said that injec

(a) Rex v. Jackson, Tr. T. 1822. (o) Rex v. Russen, O. B. Oct. 1777. Russ. & Ry. 487.

Serj. Foster's MS. East, P. C. c. 10. (n) i Hale 628. 3 Inst. 59, 60. 1 S. 3. p. 438, 439. MS. Bayley, J. Hawk. P. C. C. 41. s, 3. Sum. 117. (p) 12 Rep. 37. Sum. 117. Stamf. 1 East. P. C. c. 10. s. 3. p. 437. Rex 44. I Hawk. P.C. c. 4. s. 2, c. 41. s. v. Page, Dy. 304 a. in marg.

Cro. 3. that the emissio seminis is necessary. Car. 332.

1 Hale 628, contra:

« EelmineJätka »