doubts were entertained whether a man who induces a married woman to permit him to have connection with her by personating her husband is or is not guilty of rape, it was by that Act enacted and declared that every such offender should be deemed to be guilty of rape.

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ARTICLE 271.

OTHER PROVISIONS AS TO RAPE.

(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.

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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. (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 1 Hale, P. C. 629. Hale's reason is that the wife's consent at marriage is irrevocable. It may be doubted however whether the consent is not 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 at least of an indecent assault. Hale 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, 1631, 3 St. Tr. 402, is an authority.

2 Hale, P. C. 630. See R. v. Groombridge, 1836, 7 C. & P. 582. The presumption extends to cases of assault with intent to ravish. See R. v. Phillips, 1839, 8 C. & P. 736. The occasional incorrectness of this presumption is shown by R. v. Read, 1848, 1 Den. 377. The presumption is founded, I believe, on the notion that a boy under fourteen cannot be a father, and could not thus inflict what was regarded as the principal injury involved in rape.

3 R. v. Camplin, 1845, 1 Den. C. C. 89.

4 R. v. N. Fletcher, 1859, Bell, C. C. 63 ; referring to the definition given in Westm. 2, c. 34.

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(3.) 1 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.

ARTICLE 272.

PUNISHMENT OF RAPE AND CARNALLY KNOWING CHILDREN UNDER THIRTEEN.

2 Every one is guilty of felony and liable to penal servitude for life, who

(a.) commits rape, or

(b.) 3 unlawfully and carnally knows any girl under the age of thirteen years.

ARTICLE 273.

CARNALLY KNOWING GIRLS BETWEEN THIRTEEN AND

SIXTEEN.

Every one commits a misdemeanor, and is liable upon conviction thereof to two years imprisonment and hard labour, who

(1.) attempts to have unlawful carnal knowledge of any girl under the age of thirteen;

(2.) 5 unlawfully and carnally knows or attempts to have unlawful carnal knowledge of any girl being of or above the age of thirteen and under the age of sixteen; provided that it is a sufficient defence to any charge of either of these offences if it shall be made to appear to the Court or jury before whom the charge is brought that the person so

1 R. v. C. Fletcher, 1866, 1 C. C. R. 39. In R. Barratt, 1873 (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.

2 24 & 25 Vict. c. 100, s. 48.

3 48 & 49 Vict. c. 69, s. 4. The ordinary rule as to the necessity of proving capacity for knowing that the act was wrong (ante Art. 27) prevails when a boy under fourteen is accused of this offence, as also does the rule stated in subs. (2) of the last Article; R. v. Waite, 1892, 2 Q. B. 600, 17 Cox. C. C. 554. It is a question whether he can be convicted of an attempt to ravish; but he can be convicted of an indecent assault by reason of 48 & 49 Vict. c. 69 s. 9, R. v. Williams; 1893, 1 Q. B. 320. 448 & 49 Vict. c. 69, s. 4.

5 Ibid. s. 5.

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charged had reasonable cause to believe that the girl was of or above the age of sixteen years; and

Provided also that no prosecution may be commenced for any such offence more than three months after the commission of the offence; or

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(3.) 1 unlawfully and carnally knows or attempts to have unlawful carnal knowledge of any female idiot or imbecile woman under circumstances which do not amount to rape, but which prove that the offender knew at the time of the commission of the offence that the woman was an idiot or imbecile.

An offender against (1) whose age [2at the time of the offence] does not exceed sixteen years may instead of being sentenced to imprisonment be sentenced to be whipped and to be sent to a certified reformatory school for not less than two years and not more than five years, and to be detained in custody for seven days before he is sent to such reformatory school.

1 48 & 49 Vict. c. 69, s. 4.

2 So held by Lord Coleridge, C.J., after consulting with Stephen, J., at Swansea Summer Assizes, August 1890.

CHAPTER XXIX

CRIMES AFFECTING CONJUGAL AND PARENTAL RIGHTSBIGAMY-ABDUCTION

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ARTICLE 274.

DEFINITION AND PUNISHMENT OF BIGAMY.

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

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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 6 bigamy, have been insufficient to constitute a binding marriage.

Provided that this Article does not extend

(i.) 7 to any person who marries again during his wife's or her husband's lifetime, but in the honest belief on reasonable grounds that she or he is dead.

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

1 2 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 35, ante.

3 See Illustration (2).

4 Burt v. Burt, 1860, 29 L. J. N. S., P. D. A. 133.

5 See Illustration (3).

6 See Illustration 4).

7 R. v. Tolson, 1889, 23 Q. B. D. 168.

8 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, 1856, D. & P. 647. The same rule would, of course, apply to a bigamous marriage in any foreign country.

(iii.) to any person marrying a second time, whose husband or wife has been continually absent from such person for 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 (2 but not until) the fact that the parties have been continually absent for seven years has been proved; nor

(iv.) 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.

3 A divorce a vinculo matrimonii pronounced by a foreign Court between persons who have contracted marriage in England, and who continued 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.

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Illustrations.

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

1 R. v. Curgerwen, 1865, 1 C. C. R. 1.

2 R. v. Jones, 1883, 11 Q. B. D. 118.

3 R. v. Lolley, 1812, R. & R. 237. The decision does not refer to domicile, but this qualification appears from later cases to be required. See Harvey v. Farnie, 1880, L. R. 5 P. D. 153, 6 P. D. 32, and 8 App. Ca. 43, where R. v. Lolley is explained as above by Lord Selborne at p. 54, and Lord Blackburn at p. 59. Harvey v. Farnie was the converse of R. v. Lolley. It recognized a Scotch divorce as dissolving a marriage between people domiciled in Scotland at the time of the divorce, though the marriage took place in England, the wife being domiciled at the time of the marriage in England. The cases on the effect of foreign judgments on marriage are collected in 2 Sm. L. C. 897-904, 9th Edition.

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 a 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. judge's attention, however, was not directed to the passage in Hale. 4 R. v. Chadwick, 1847, 11 Q. B. 205.

The