fraud, or that the woman did not understand the nature of the act, is immaterial. Provided that :

1

(1.) A husband [it is said] cannot commit rape upon his wife by carnally knowing her himself, but he may do so if he aids another person to have carnal knowledge of her.

2

(2.) A boy under fourteen years of age is conclusively presumed to be incapable of committing rape.

3 Carnal knowledge means the penetration to any the slightest degree of the organ known by the male organ of generation.

4

Illustrations.

(1.) A has connection with B, a woman who at the time of the connection is in a state of insensibility. A has ravished B.

5

(2.) A has connection with B, an idiot, who by reason of her idiotcy submits, but does not permit the act. A has ravished B.1

(3.) A has connection with B, an idiot, who permits the act from mere sexual instinct, but without understanding its nature. A has not ravished B.

7

(4.) A has connection with B, a married woman, who permits the act because, owing to A's fraud, she believes him to be her husband. A has not ravished B.

1 1 Hale, P. C. 629. Hale's reason is that the wife's consent at marriage is irrevocable. Surely, however, the consent is confined to the decent and proper use of marital rights. If a man used violence to his wife under circumstances in which decency or her own health or safety required or justified her in refusing her consent, I think he might be convicted of rape, notwithstanding Lord Hale's dictum. He gives no authority for it, but makes the remark only by way of introduction to the qualification contained in the latter part of clause (1), for which Lord Castlehaven's Case (3 St. Tr. 402) is an authority.

2 1 Hale, P. C. 630. See R. v. Groombridge, 7 C. & P. 583. The presumption extends to cases of assault with intent to ravish. See R. v. Phillips, 8 C. & P. 736. The occasional incorrectness of this presumption is shown by R. v. Read,

1 Den. 377.

324 & 25 Vict. c. 100, s. 63, and see R. v. Cox, Ry. & Mood. 337, and R. v. Allen, 9 C. & P. 31, decided on the earlier enactment, 9 Geo. 4, c. 31, s. 111. R. v. Camplin, 1 Den. C. C. 89.

5 R. v. N. Fletcher, Bell, C. C. 63; referring to the definition given in Westm. 2, c. 34.

6 R. v. C. Fletcher, L. R. 1 C. C. R. 39. In R. Barratt (L. R. 2 C. C. R. 81), in which the facts are similar to those in the case of N. Fletcher, the judges said that there was no inconsistency between the cases of N. Fletcher and C. Fletcher.

R. v. Barratt, L. R. 2 C. C. R. 157; R. v. Clarke, Dear. 397; R. v. Jackson, R. & R. 487. He has, however, committed an indecent assault, R. v. Williams, 8 C. & P. 286; R. v. Barrow, L. R. 1 C. C. R. 156.

ARTICLE 255.

PUNISHMENT OF RAPE AND CARNALLY KNOWING CHILDREN UNDER TWELVE.

1 Every one is guilty of felony and liable to penal servitude for life as a maximum punishment, who

(a.) commits rape, or

(b.) 2 unlawfully and carnally knows and abuses any girl under the age of twelve years.

ARTICLE 256.

CARNALLY KNOWING CHILDREN BETWEEN TWELVE AND

THIRTEEN.

3 Every one commits a misdemeanor, and is liable upon conviction thereof to a maximum punishment of two years imprisonment and hard labour, who unlawfully and carnally knows and abuses any girl above the age of twelve and under the age of thirteen years, whether with or without her consent.

1 24 & 25 Vict. c. 100, s. 48.

238 & 39 Vict. c. 94, s. 3.

3 Ibid. s. 4.

4

Ibid. s. 3. These words are obviously a mistake. In the preceding section (where they do not appear) they would have been superfluous, but harmless. In this section they are mischievous, for, if taken literally, they make it impossible to commit a rape upon a girl between twelve and thirteen, as they provide that carnally to know a girl between twelve and thirteen without her consent is a misdemeanor. The words ought. either to be omitted altogether or else changed into "even with her consent." Probably the Court would so construe them, for it is impossible to suppose that Parliament can have intended the monstrous consequence pointed out above. It was held in R. v. the Court for Crown Cases Reserved on Nov. 25, 1882, that this view of the law is correct, and that the enactment referred to did not alter the law as to rape on a child between twelve and thirteen. It was stated that Mellor, J., had held to the same effect in an earlier case.

by

CHAPTER XXX.

CRIMES AFFECTING CONJUGAL AND PARENTAL RIGHTS—

1

BIGAMY-ABDUCTION.

ARTICLE 257.

DEFINITION AND PUNISHMENT OF BIGAMY.

2 EVERY one commits the felony called bigamy, and is liable, upon conviction thereof, to a maximum punishment of seven years penal servitude, who, being married, marries any other person during the life of his or her wife or husband.

3 The expression "being married" means being legally married. The word "marries" means goes through a form of marriage which the law of the place where such form is used recognizes as 5 binding, whether the parties are by that law competent to contract marriage or not, and although by their fraud the form employed may, apart from the bigamy, have been insufficient to constitute a binding marriage.

Provided that this article does not extend

(i.) to a second marriage contracted elsewhere than in England and Ireland by any other than a subject of Her Majesty; nor

(ii.) to any person marrying a second time, whose husband or wife has been continually absent from such person for

12 Hist. Cr. Law, 430.

2 24 & 25 Vict. c. 100, s. 57, as explained by the authorities referred to in the Illustrations. See note to Article 34, ante.

3 See Illustration (2).

Burt v. Burt, 29 L. J. (Probate) 133.

5 See Illustration (3).

6 See Illustration (4).

The Act does extend to a subject of Her Majesty who has contracted a second marriage in Scotland during the lifetime of a wife previously married in Scotland: R. v. Topping, Dear 647. The same rule would, of course, apply to a bigamous marriage in any foreign country.

seven years then last past, and has not been known by such person to be living within that time.

1 The burden of proving such knowledge is upon the prosecutor when the fact that the parties have been continually absent for seven years has been proved; nor

(iii.) to any person who at the time of such second marriage was divorced from the bond of the first marriage, nor to any person whose first marriage has been declared void by the sentence of any Court of competent jurisdiction.

2 A divorce à vinculo matrimonii pronounced by a foreign Court between persons who have contracted marriage in England, and who continue to be domiciled in England, on grounds which would not justify such a divorce in England, is not a divorce within the meaning of this clause.

3

Illustrations.

(1.) 3 A marries B, a person within the prohibited degrees of affinity, and during B's lifetime marries C. A has not committed bigamy.

(2.) A marries B, and during B's lifetime, goes through a form of marriage with C, a person within the prohibited degrees of affinity. A has committed bigamy.

5

(3.) A marries B in Ireland, and during B's lifetime goes through a form of marriage with C in Ireland which is invalid, because both A and C are Protestants, and the marriage is performed by a Roman Catholic priest. A commits bigamy.

1 R. v. Curgerwen, L. R. 1 C. C. R. 1.

2 R. v. Lolley, R. & R. 237. The decision does not refer to domicil, but this qualification appears from later cases to be required. All the cases on this subject are collected in 2 Sm. L. C. 839-45. Harvey v. Farnie, L. R. 5 P. D. 153, and 6 P. D. 32, is the converse of Lolley's case. In Harvey v. Farnie a Scotch divorce was recognized as dissolving a marriage between domiciled Scotch people, though the marriage took place in England, the wife being domiciled at the time in England. A question as to the exact time at which a person can be said to be divorced may arise. In 1 Hale, P. C. 694, a case is mentioned in which a person marrying after sentence of divorce, but pending an appeal, was held to be within a similar proviso in 1 Ja. 1, c. 11. In R. v. Hale, tried at the Leeds summer assizes, 1875, a woman pleaded guilty to a charge of bigamy before Lindley, J., she having married after the decree nisi was pronounced, but before it became absolute, which it afterwards did. The judge's attention, however, was not directed to the passage in Hale.

3 R. v. Chadwick, 11 Q. B. 205.

R. v. Brown, 1 C. & K. 144; R. v. Allen, L. R. 1 C. C. R. 367.

5 R. v. Allen, ub. sup. pp. 373-5, disapproving of R. v. Fanning, 17 Ir. C. L. 289.

(4.) 1 A, married to C, marries B in C's lifetime by banns. B (the woman) being married, for purposes of concealment under a false name. A has committed bigamy.

(5.) 2 A, married to B, marries C in B's lifetime, in the colony of Victoria. In order to shew that A committed bigamy it must be proved that the form by which he was married was one recognised as a regular form of marriage by the law in force in Victoria.

ARTICLE 258.

PRINCIPALS IN SECOND DEGREE IN BIGAMY.

3 Every one is a principal in the second degree in the crime of bigamy who, being unmarried, knowingly enters into a marriage which renders the other party thereto guilty of bigamy.

ARTICLE 259.

IRREGULAR MARRIAGES UNDER THE MARRIAGE ACT OF 1823.

4

Every one is guilty of felony, and is liable upon conviction thereof to a maximum punishment of fourteen years penal servitude, who knowingly and wilfully

(a.) solemnises matrimony in any other place than a church or such public chapel wherein banns may be lawfully published, or at any other time than between the hours of eight and twelve in the forenoon, unless by special licence from the Archbishop of Canterbury; or

(b.) solemnises matrimony without due publication of banns, unless licence of marriage be first had and obtained from some person having authority to grant the same; or

(c.) falsely pretending to be in holy orders, solemnises matrimony according to the rites of the Church of England. 5 Provided that nothing in this Article contained applies to

1 R. v. Parson, 5 C. & P. 412. In R. v. Rea, the prisoner at the bigamous marriage (before the registrar) gave a false Christian name, and was held to be rightly convicted.

2 Burt v. Burt, 29 L. J. (Probate) 133.

3 R. v. Brown & Webb, 1 C. & K. 144.

44 Geo. 4, c. 76, s. 21.

This proviso is added to express the effect of subsequent legislation on the subject. The Acts referred to are Geo. 4, c. 92; 11 Geo. 4 & 1 Will. 4, c. 18;