ter the other. While she was trying to keep them out of the house she called out, "It is too bad for so many to be attacking one poor girl; but if you will go away and come one at a time I will do what I can to satisfy you." The men being indicted for rape, Coleridge, J., said to the jury: "It is well worthy of your consideration whether, although she at first objected, she might not afterwards, on finding that the prisoners were determined, have yielded to them and in some degree consented, when you come to consider that she herself told them that she should make no objection if they came one at a time." The jury acquitted the men. Reg. v. Hallett, 9 C. & P. 748. The case of the young girl by the name of Frederica, ante, p. 228) is a good illustration of this rule, though a Wisconsin case is, perhaps, as striking an example of how much the courts require of the woman as any to be found in the books. A woman in Milwaukee charged a man named Whittaker with raping her. Her story as to her objections was as follows: "I tried my best I could, and I couldn't do any more, I got so tired out. I tried to save me so much as I could, but I couldn't save myself. and he held me and tried to do what he was made to do, and I couldn't belp myself any more. He had my hands tight and my feet tight, and I couldn't move from my place even, and of course at last I worked so much as I could and I gave up." The jury convicted Whittaker, but the Supreme Court thought it wrong. "There is nothing," said they, "to distinguish this case from ordinary cases where the resistance and dissent ought to have continued to the last, and where the physical power of the woman must have been overcome by physical force to make the act rape. A threat of personal injury is the usual accompaniment of such cases. In this class of cases the authorities seem to be uniform that the act must be committed against the will of the woman and without her consent, not technically, but actually and in fact, or it will not be rape." Whittaker v. State, 50 Wis. 519; 1 Am. Cr. Rep. 391.

It is generally necessary to prove that the woman made an immediate complaint of the matter. This is required in order to show that the charge is not an afterthought- the result of jealousy or spite, or the altered relations of the parties. So when a girl in Georgia made no charge until after she became so big with child that the neighbors discovered her condition, this circumstance was held sufficient to disprove the charge. Crockett v. State, 49 Ga. 185.

It is hardly ever permitted to convict on the testimony of the woman alone - there must be some corroboration of her story. So

the accused may show that she was not strictly virtuous, for the reason that no impartial mind would be apt to resist the conclusion that a female of this kind would not be so apt to resist as one who is spotless and pure. Benstine v. State, 2 Lea, 169.

It remains to be added that a boy under fourteen years of age can not in England (see ante, p. 3), be convicted of a rape, he being presumed too young to be capable of committing it, and that a husband can not commit the crime on his wife, as her continuing consent is presumed to be given by the marriage contract.

The crimes of sodomy, buggery, and bestiality - known as crimes against nature are of too rare occurrence, or at least are too seldom brought to the attention of courts, to require any definition or description here.

Seduction. This is not an offense at common law, for the rather convincing reason that there is no wrong about it in which the prosecutrix does not take an equal share. In some of the States it is made a crime by statute when the woman is under a certain age eighteen in Ohio- and is of chaste character, and the act is accomplished under a promise of marriage. Seduction is accomplished by enticement and promises; if by force it is not seduction, but rape.

Incest is the intermarriage or cohabitation of two persons of the opposite sex related to each other within certain degrees.

RAPE-FRAUD NOT FORCE.

REG. v. SAUNDERS.

[8 C. & P. 265.]

Mrs. Cleary and her husband boarded with a Mr. Saunders. One Sunday night she and her husband went to bed rather early, and she soon fell asleep. Some time afterwards she was awakened by feeling a band passing round her, but supposing it to be her husband's, she made no resistance to that or to the connection which followed. Afterwards she discovered by the breathing that it was not her husband at all, and calling out, the man jumped out of the bed and ran out of the room. It turned out that Mr. Cleary had taken some pills before he went to bed, and being obliged to get up and go down stairs in the middle of the night, Saunders had slipped in and taken his place. Mrs. Cleary felt so mortified the next day that she tried to hang herself, but nevertheless it was held that Saunders was not guilty of rape. "I am bound to tell you," said the judge to the jury, "that the evidence in this case does not establish the charge contained in this indictment, as the crime was not committed against the will of the prosecutrix, as she consented, believing it to be her husband."

The essence of the crime of rape, it should be remembered, is not the fact of intercourse, which is a lawful act under ordinary circumstances; but it is the injury and outrage to the modesty and

feelings of a woman by having a connection forced upon her against her will and in spite of her protests. Pennsylvania v. Sullivan, Add. 143. Therefore, where the woman consents, the fact that her consent was obtained by fraud (as held in Saunders' case above, and many others both English and American; see Reg. v. Williams, 8 C. & P. 286; Rex v. Jackson, R. & R. 480; Queen v. Barrow, L. R. 1 C. C. R. 156; Wyatt v. State, 1 Swan. 394), does not render her consent any less a consent; and the crime of rape is not committed. For in such cases the woman's will is exercised, though it is exercised under the influence of fraud. Some courts, looking only at the fact that a very grievous wrong has been committed, in such a case as that of Saunders above, have declared that it must be punished, forgetting that it can not possibly come within the definition of rape; and forgetting, too, that if "not obtained by fraud " were to be added to the definition, it would include cases which it would be absurd to include. A man may obtain the consent of a woman to marriage by fraud, by concealing the fact that he has another wife living, or by representing himself to be a rich man when he is a pauper. If, after they had lived together some time, she should discover the truth, would he be indictable for rape? He would, if the old definition were intrenched upon in the way suggested, for was not her consent to the connection obtained by fraud? The fact is that the law, as administered by our courts, would be much more of a science if the judges would stick to principles, and not try to stretch this rule and narrow that, in order to suit their disgust at a particular act and their desire to punish it or not as the case may be. Hard cases, it has been well said, make bad law. In Scotland they have what they call "innominate offenses," or crimes without a name, which the judges, when the particular facts of a case do not bring it within the definition of any named crime, punish under this head if they think the offender deserves punishment. From this wide net criminals find it difficult to escape. I commend this hard Scotch sense to the attention of our Legislatures.

In the city of Detroit there was a foreign quack named Santiago Don Moran, who claimed to be able to cure consumption every time. Farmer Jackson had a sick daughter, and, having seen the advertisement, he took her into the city to be treated, and left her at Don Moran's house while he went about his business in the city. The quack examined the girl very gravely, and announced to her that the "whites" had collected in her stomach, and that to save her life it would be necessary to enlarge her parts so that they would

pass off; that he could do it with instruments, but the operation might kill her; that the only safe way was for him to have connection with her. Miss Jackson objected to this rather unusual prescription, when the quack replied that it was what he did to all women with her complaint, and that he had told her father that it was necessary, who agreed that it ought to be done in this way all of which was, of course, untrue. The girl believing what he said to be true, withdrew her objections, and Don Moran had connection with her. The quack was afterwards indicted for rape, and the judge told the jury that if they believed that Miss Jackson would not have given her consent but for his false representation, they should find him guilty. They found him guilty. But in the Supreme Court this was held all wrong, for the reason that there was no "force" used by the quack to accomplish his purpose, and the fraud did not take the place of force. Don Moran v. People. 25 Mich. 356.

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Therefore, to have connection with a woman while in a state of natural sleep an insensibility not brought about by the prisoner, is not held to be rape in Scotland, and in several cases in the United States. Charles v. State, 11 Ark. 389; Com. v. Fields, 4 Leigh, 648. But as said in one case: "Had the sleep in which the woman was been induced by felonious practices, such as the use of drugs, the case would have assumed a different aspect. The will might then have been justly alleged to have been overcome with a view to the possession of her person without her consent; just as in the case where through fear and dread, by threats of death, the woman has been thrown into a state of prostration, or as when through such threats, or through actual personal violence at the first meeting of the parties, she has been thrown into a swoon, and then her person ravished, the crime might be held properly charged." Reg. v. Sweenie, 8 Cox, 223.

It was held once in England that an idiot cannot give consent (Queen v. Barrett, L. R. 2 C. C. R. 81); but this doctrine was soon qualified so as to stand thus: Unless she is so far capable of will as to permit the act from mere sexual instinct, although she does not understand its nature. Queen v. Fletcher, L. R. 1 C. C. R. 39. In an American case, the absurdity of holding that a connection with an insane woman without the use of force was rape was pointed out, and it was ruled that such an act could not be rape. This is holding fast to the principles of the law, unaffected by the hardship of the case-though in this particular instance it appeared that the woman's insanity took the form of a morbid sexual desire,