ing of any substance with the intention that it shall be employed in procuring abortion. The prisoner, in this case, supplied the substance, and intended that it should be employed to procure abortion. He knew of his own intention that it should be so employed, and is therefore within the words of the statute. He is also within the mischief of the statute, and was rightly convicted.(.)

The 43 Geo. 3, c. 58, and the 9 Geo. 4, c. 31, made an important distinction between the case where the woman was quick with child and where she was not, or was not proved to be, quick with child.(j) Under the present act, however, in the case of the mother, all that it is necessary to prove is that she is with child, and in the case of any other person, it is immaterial whether the woman were or were not with child.

An indictment upon the 43 Geo. 3, c. 58, s. 2, charged the prisoner with having administered to a woman a decoction of a certain shrub called savin: and it appeared upon the evidence that the prisoner prepared the medicine which he administered by pouring boiling water on the leaves of a shrub. The medical *901] *men who were examined stated, that such a preparation is called an infusion, and not a decoction (which is made by boiling the substance in the water), upon which the prisoner's counsel insisted that he was entitled to an acquittal, on the ground that the medicine was misdescribed. 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 procure abortion.(k)

On an indictment for administering featherfew and other drugs to procure abortion, it appeared that the prisoner gave the woman, who was alleged to be with child by him, two powders, with directions to take one on each of two successive nights, and said that the effect would be to cause miscarriage. She took one of the powders, with the featherfew, which brought on violent sickness. The other powder was examined by a physician, and he could not discover any mineral substance in it; as far as he could judge from the taste, smell, and appearance, it was a mixture of savin and fennigreek, the latter being the larger ingredient. The fennigreek would scarcely produce any effect at all; savin. in that quantity, might produce a little disturbance in the stomach for the time, but would do no further injury. Featherfew(7) is an herb very similar to camomile: it is a tonic in common use among the peasantry, and has nothing noxious in it. A mixture of the powder and decoction of this herb would not alter the properties of either. The prisoner upou two or three subsequent occasions had brought the woman other medicines to take for the same purpose, some of which she had taken, but not the rest. Wilde, C. J., held that the evidence was not sufficient to prove that the drugs administered came within the meaning of the words "poison or other noxious thing.”(m)

(i) Reg. v. Hillman, L. & C. 343.

() As to where a woman was quick with child, see Rex v. Phillips, 3 Campb. 77. (k) Rex v. Phillips, 3 Campb. 74. And in Rex v. Coe, 6 C. & P. 403 (25 E. C. L. R.), where the prisoner was indicted on the 9 Geo. 4, c. 31, s. 13, for administering saffron to a female, and his counsel was cross-examining as to her having taken something else before the saffron, and also as to the innoxious nature of the article; Vaughan, B., said, "Does that signify? It is with the intention that the jury have to do; and if the prisoner administered a bit of bread merely with intent to procure abortion, it is sufficient." It is not stated upon which branch of the section this indictment was framed; if upon the latter, which used the words "any medicine or other thing," perhaps the dictum was right. But it should seem that neither this dictum, nor that of Lawrence, J., in Rex v. Phillips, apply to the new Act, which uses the words "any poison or other noxious thing" only, in the case of administering or causing to be taken; and although a doubt has been suggested in a note to Rex v. Coe as to whether the words "other means" might not be applied to other substances than such as are poisonous or noxious; it should seem that the words "other means" cannot be so applied in the new Act: first, because they are in an entirely distinct sentence; secondly, because they are governed by the word use, and not by administer. See Rosc. Cr. Evid. 243. C. S. G.

(1) The proper name of this is feverfew, matricaria, so called from its supposed use in disorders of the womb.-Edinb. Med. & Phys. Dict.

(m) Reg. v. Perry, 2 Cox C. C. 223. Wilde, C. J., also held that the other transactions were admissible as showing the intent with which the particular drugs referred to in the indictment were administered. See Reg. v. Calder, post. As the prisoner administered

The thing supplied with intent to procure abortion must be noxious in its nature. Where, therefore, an indictment charged the prisoner with supplying a certain noxious thing with intent to procure abortion, and the surgeon proved that the liquid was some vegetable decoction of a harmless character, and such as would not procure a miscarriage; but if taken with the belief that it would produce it, might, by acting on the imagination, produce that effect; it was held that this liquid was not within the clause, although the woman proved that, after taking a wineglassful, she felt dizzy in the head when she went to bed, and felt stupid in the head the next morning.(mm)

*But it was held, on the 43 Geo. 3, c. 58, s. 2, that unless the woman were

with child, the offence was not committed, although the prisoner thought [*902

she was with child, and administered the drug with intent to destroy the child (n) But the new Act makes this immaterial, except in cases where the mother is the offender.

To constitute an administering, or causing to be taken, it is not necessary that there should be a delivery by the hand. Where, therefore, on an indictment for administering poison and causing poison to be taken, it appeared that the prisoner had mixed poison with coffee, and had told her mistress that the coffee was for her, and the mistress took it and drank some of it; it was held that this was sufficient. (0) A mere delivery to the woman, however, is not sufficient; the poison must be taken into the mouth, and it seems, some of it swallowed to constitute an administering.(p) Upon an indictment for unlawfully administering to, and causing to be taken by Emma Cheney, poison, with intent to procure her miscarriage, it appeared that she, being and believing herself to be pregnant, applied to the prisoner to get her something to procure her miscarriage, and that the prisoner accordingly purchased some preparation of mercury, which he gave to her, directing her to take one-half of the quantity in gin; Cheney accordingly procured the gin, and, in the absence of the prisoner, took the dose, which produced a miscarriage. The jury found these facts, and that the mercury was both given by the prisoner to Cheney, and taken by her, with intent to procure the miscarriage; and, upon a case reserved, it was held that the prisoner was properly convicted; as there was a "causing to be taken" within the meaning of the statute.(g) So where on a similar indictment it appeared that the prisoner had talked with L. Chuter about her being with child, and brought her a bunch of savin, and told her, if she put it in some gin, and took from half a glass to a glass two or three times a week, it would destroy her child, and she took the savin and gin three or four times accordingly; and the prisoner afterwards induced Chuter to get some blue pills from a chemist, which the prisoner made up with some flour and tea into pills, of which Chuter took twenty or thirty, and was very ill from the time of taking the pills till she was confined; it was held upon

the drugs with intent to procure a miscarriage, and as savin is unquestionably in its nature a noxious drug, the decision in this case seems open to great doubt. It is submitted that the true meaning of the words "poison or other noxious thing" is such things as in their nature are poisonous or noxious; and that it is a misapprehension to suppose that the statute requires such a quantity of a poison or other noxious thing to be administered as shall be noxious. If a person administers any quantity of a poison, however small, it has never yet been doubted, that, if it were done with intent to murder, the offence of administering poison with intent to murder was complete; and Reg. v. Cluderoy, Den. C. C. 514, post, which was decided after this case, shows that if poison be administered in such a way that it cannot injure, the offence is nevertheless complete; and Wilde, C. J., there said, "the act of administering poison with intent to kill is proved. The effect of that act is beside the question." It is submitted, therefore, that if there be an intent to procure abortion, it is quite immaterial how small the quantity be of the poison or other noxious thing that is administered.

(mm) Reg. c. Isaacs, L. & C. 220.

(n) Rex v. Scudder, R. & M. C. C. R. 216; s. c., 3 C. & P. 605 (14 E. C. L. R.). (2) Rex v. Harley, 4 C. & P. 369 (19 E. C. L. R.), Park, J. A. J. See this case, post. (p) Rex v. Cadman, R. & M. C. C. R. 114. See this case, post, and the note to it.

(q) Reg. v. Wilson, D. & B. C. C. 127. Cheney, though culpable, was not guilty of felony, and therefore not guilty of the felony created by the statute, and the prisoner was, therefore, the only person coming within the words as the principal; and this distinguishes the case from Reg. v. Williams, 1 Den. C. C. 39.

a case reserved, that there was no distinction between this and the preceding case.(r)

It is to be observed that under the new statute, in such cases as *the two

*903] last, the woman being with child would be a principal, and the man an

accessory before the fact; but where the woman is not with child these cases will still apply; for there the woman's criminality will be exactly the same as it was under the former Act.

On an indictment for administering savin with intent to procure abortion, the administration of savin on one day was proved, and it was proposed on the part of the prosecution to prove the administration of similar drugs on many subsequent days for the purpose of showing the intent, and also as part of the same felony, and it was urged that the substance of the felony was the administration of drugs for the purpose of procuring abortion, and if that was done by homoeopathic doses, taken for a long period, all would form part of one felony; but Cresswell, J., held that other matters of the same description might be proved for the purpose of showing the intent, but that the administration of other savin on other days could not be given in evidence as part of the offence.(s)

Upon the trial of any offence mentioned in this chapter the prisoner may be convicted of an attempt to commit the same.(t)

*904]

*CHAPTER THE FIFTH.

OF RAPE, THE UNLAWFUL CARNAL KNOWLEDGE OF FEMALE CHILDREN, AND PROCURING THE DEFILEMENT OF GIRLS UNDER AGE.

Sec. I-Of Rape.

RAPE has been defined to be the having unlawful and carnal knowledge of a woman, by force, and against her will. (a)1

This offence formerly was, for many years, justly visited with capital punishment; but it does not appear to have been regarded 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 eyes, 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 18 Eliz. c. 7, s. 1. But the former statutes are repealed.

And now by the 24 & 25 Vict. c. 100, s. 48, "Whosoever shall be convicted of

(r) Reg. v. Farrow, D. & B. C. C. 164. It is not stated expressly whether the savin and pills were taken in the absence of the prisoner, but the inference from the facts stated is that they were. See also Reg. v. Gaylor, D. & B. C. C. 288, ante, p 60.

(8) Reg. v. Calder, 1 Cox C. C. 348. See Reg. v. Perry, supra, note (m).

(t) Ante, p. 1.

(a) 1 Hawk. P. C. c. 41, s. 2; 1 Hale 627, 628; Co. Lit. 123 b; 2 Inst. 180; 3 Inst. 60; 4 Blac. Com. 210; 1 East P. C. c. 10, s. 1, p. 434.

(b) 4 Blac. Com. 211; 1 Hawk. P. C. c. 41, s. 11; 1 Hale 627; Bract. lib. 3, c. 28; Leg. Gul. 1; I. 19; Wilk. Leg. Anglo-Sax. 222, 290.

1 Pollard v. State, 2 Clark 567; State v. Hargrave, 65 N. C. 466; State v. Tarr, 28 Iowa 397; Kelly v. Comm., 1 Grant 484.

the crime of rape shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the Court, to be kept in penal servitude for life, or for any term not less than three years, or to be imprisoned for any term not exceeding two years, with or without hard labor."(c)

An indictment for this offence may be prosecuted at any time, and notwithstanding any subsequent assent of the party grieved. (d)

All who are present, aiding and assisting a man to commit a *rape, are [*905 principal offenders in the second degree, whether they be men or women.(e) And there may be accessories before and after in this offence; and such accessories are punishable under the 24 & 25 Vict. c. 100, s. 67.(ƒ)

The law presumes that an infant, under the age of fourteen years is unable to commit the crime of rape; and, therefore, he cannot be guilty of it;(g) or of an assault with intent to commit a rape; (h) and if he be under that age, no evidence is admissible to show that, in point of fact, he could commit the offence of rape.(i)1 This doctrine, however, 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.(k) 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.(1) 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 dissolved: 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.(m) The forcible taking away, and marrying a woman against her will, was, however, made felony by the 3 Hen. 7, c. 2. And though that statute is repealed, the 24 & 25 Vict., c., 100, ss 53, 54, 55,(n) makes certain provisions against the forcible or unlawful abduction of females, which will be mentioned in a subsequent chapter.

The offence of rape may be committed, though the woman at last yielded to the violence, if such her consent was forced by the fear of death or by duress.(0) If non-resistance on the part of a prosecutrix proceeds merely from her being overpowered by actual force, or from her not being able, from want of strength, to resist any longer, or from the number of persons attacking her, she considered resistance dangerous, and absolutely useless, the crime is complete.(p) And it will not be

(e) This clause is taken from the 9 Geo. 4, c. 31, s. 16; 10 Geo. 4, c. 34, s. 19 (I.); and 4 & 5 Vict. c. 56, s. 3. This Act extends to Ireland, but not to Scotland. As to hard labor, &c., see ante, p. 900.

(d) 1 Hale 631, 632; 1 East P. C. c. 10, s. 9, p. 446.

(e) Rex v. Vide, Fitz. Corone, pl. 86; 1 Hawk. P. C. c. 41, s. 10; Lord Baltimore's case, 4 Burr. 2179; 1 Hale 628, 633; 1 East P. C. c. 10, s. 1, p. 435; Rex v. Burgess, Trin. T. 1813, post, p. 921.

(f) See the section, ante, p. 881.

(g) 1 Hale 630; Reg. v. Brimilow, 2 Moo. C. C. R. 122; Rex v. Groombridge, 7 C. & P. 582 (32 E. C. L. R.), Gaselee, J., and Lord Abinger, C. B.

(h) Rex v. Eldershaw, 3 C. & P. 396 (14 E. C. L. R.), Vaughan, B.; Reg. v. Phillips, 8

C. & P. 736 (34 E. C. L. R.), Patteson, J. See ante, p. 8.

(i) Reg. v. Phillips, 8 C. & P. 736 (34 E. C. L. R.), Patteson, J.; Reg. v. Jordan, 9 C. &

P. 118 (38 E. C. L. R.), Williams, J., post, p. 931.

(k) 1 Hale 620.

(1) Lord Castlehaven's case, 1 St. Tri. 387; 1 Hale 629; Hutt. 116; 1 Str. 633.

(m) 1 Hale 629.

(n) Post, chap. vii.

(0) 1 Hawk. P. C. c. 41, s. 6;

East P. C. c. 10, s. 7, p. 444.

(p) Reg. v. Hallett, 9 C. & P. 748 (38 E C. L. R.), per Coleridge, J.

1 Contra, Comm. v. Green, 2 Pick. 380.

2 Non-consent is conclusively presumed in a child under ten: People v. M'Donald, 9 Mich. 150; Smith v. State, 12 Ohio (N. S.) 466; Stephen v. State, 11 Geo. 225.

any excuse that she was first taken with her own consent, if she were afterwards forced against her will; nor will it be any excuse that she *consented after

*906] the fact, or that she was a common strumpet, or the concubine of a ravisher; for she is still under the protection of the law, and may not be forced. (q) 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 favor of the party accused, especially in doubtful cases. (r) 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.(s)

Upon an indictment for rape, it appeared that the prisoner had made the prosecutrix, a girl of thirteen years of age, quite drunk, and when she was in a state of insensibility took advantage of it, and violated her. The jury found that he gave her the liquor for the purpose of exciting her, not with the intention of rendering her insensible, and then having sexual intercourse with her. It was contended that to constitute rape there must be actual resistance to that force: there must be an opposing will on the part of the woman; but, upon a case reserved, ten Judges held that the conviction was right. Several of these Judges thought the crime of rape is committed by violating a woman when she is in a state of insensibility, and has no power over her will, whether such state is caused by the man or not, the man knowing at that time that she is in such state; and Tindal, C. J., and Parke, B., remarked that in the statute of Westminster 2, c, 34(t) the offence of rape is described to be ravishing a woman "where she did not consent," and not ravishing against her will. But all the ten Judges agreed that in this case, where the prosecutrix was made insensible by the act of the prisoner, and that an unlawful act, and when also the prisoner must have known that the act was against her consent at the last moment that she was capable of exercising her will, because he had attempted to procure her assent, and failed, the offence of rape was committed. Three other Judges did not think that this was sufficiently proved. (u)

(q) 1 Hawk. P. C. c. 41, s. 7; 1 East P. C. c. 10, s. 7, pp. 444, 445; 4 Blac. Com. 213. (r) 1 East P. C. c. 10, s. 7, p. 445.

(s) 1 Hale 631; 1 Hawk. P. C. c. 41, s. 8; 1 East P. C. c. 10, s. 7, p. 445.

(1) This Act was repealed by the 9 Geo. 4, c. 31, s. 1.

(u) Reg. v. Camplin, 1 Den. C. C. R. 90. The grounds of the decision are taken from the addenda as furnished by Parke, B. In the course of the argument Patteson, J., said, "If a man knocks a woman down and makes her insensible, and then has connection with her whilst she is insensible, according to the argument for the prisoner, that would be no rape, because she did not resist and evinced no opposing will;" and Alderson, B., added: "In cases of fraud the woman's will is exercised, though it is exercised under the influence of fraud; but in the case put by my brother Patteson there is force. There resistance was impossible, owing to the blow given by the prisoner; here it was rendered impossible by the liquor which he had administered." There is no statement in Den. C. C. to warrant the allegation that the prisoner had attempted to obtain the prosecutrix's consent, and failed. Where, on a trial for rape, the prosecutrix stated that she usually slept with her father, and having gone to sleep by his side, on waking she found he was having connection with her; and Camplin's case, supra, was relied on for the position that, if the prisoner had connection with the girl while she was in such a state as to be incapable of giving consent, it was rape. Alderson, B., said, "I do not understand that case to have gone so far as you affirm. It only decided that where the state of unconsciousness was caused by any act of the prisoner, connection with the woman in such a state would constitute the offence. The wine was offered to her by the man in that case, and there was at any rate evidence to show that he had induced her to take it. I concurred in that judgment only on that ground:" Reg. v. Page, 2 Cox C. C. 133. Alderson, B., read the following note of the ground of his opinion in Camplin's case:-"The rest of the Judges in the affirmative thought that on these facts it must be presumed that this was contra voluntatem, it being clear that the woman had not consented when he began to administer the liquor, and that she never did actually consent at all; that his having connection with her when insensible was therefore clearly contra voluntatem ultimam, which

The offence of rape can only be perpetrated by the use of force in overcoming the female: Wyatt v. State, 2 Swan. 394; Cato v. State, 9 Fla. 163; Waller v. State, 40 Ala. 325. Intercourse with a drunken woman, or in a state of dementia, is not rape: People v. Quin, 50 Barb. 128; People v. Cornwell, 13 Mich. 427. So when consent is fraudulently obtained: Walters v. People, 50 Barb. 144; Lewis v. State, 30 Ala. 54. Where the woman is insensible: Comm. v. Bush, 105 Mass. 376. See Comm. v. Field, 4 Leigh 648.