¶1 delivered the opinion of the Court.
¶2 At common law, Rape was a felony, but the offence was afterwards changed to a misdemeanor, before the statute of Westminster the 1st. By that statute, the punishment which then was castration and loss of eyes, was mitigated: but by the statute of Westminster the 2d, the offence was again changed to a felony, and hence, its present existence as a felony, is in virtue of that statute ; the indictment must therefore conclude contra formam slatuii. Lord Coke, Lord Hale, and Hawkins, all concur in the necessity of such a conclusion : and in second *389 Institute 180, a clear history of the offence is to beftnrd. It is true Mr. East, in his Crown Law, is of a contrary opinion, but we cannot feel ourselves justified, in so important a case, to depart from what has been by the great men above mentioned, considered in settled law, in complaisance to the opinion of any writer however respectable : more especially, as all the precedents have such a conclusion. The judgment must therefore stand arrested.