The significance of the various theories advanced in Hegarty v. Shine will be better appreciated after an examination of the next case, R. v. Clarence,107 which, since its decision in 1888 by the Court for Crown Cases Reserved in England, has been considered the leading authority on this branch of the law. The facts in this case were particularly revolting. It appeared that the prisoner, who knew that he was suffering from gonorrhea, had marital intercourse with his wife without informing her of the fact, with the result that he infected her, and from such infection she suffered grievous bodily harm. The indictment was drawn under 24 and 25 Vict., C. 100, S. 47, and contained two counts, one of which charged the prisoner with "an assault" upon his wife, "occasioning actual bodily harm," and the second count, drawn under section 20 of the same statute, charged him with "unlawfully and maliciously inflicting" upon her "grievous bodily harm." A conviction having been had in the court below, the question on appeal was whether he was properly convicted upon either count. The conviction was reversed by a vote of nine to four, Wills, Smith, Stephen, Manisty, Mathew and Grantham, JJ., and Pollock, B., and Huddleston, B., and Coleridge, C. J., composing the majority, while Hawkins, Field, Day and Charles, JJ., were in the minority. Six judges delivered opinions against the conviction and two wrote in support of it; but since space forbids an extended examination of this voluminous case, we shall confine ourselves to the consideration of the opinions of Wills, J., and Hawkins, J., which adequately discuss the various theories involved in the decision. Judge Wills first adverted to the fact that the prosecution had been brought under a statute, and then stated that the conviction might be sustained on three theories, to-wit: (1) That the existence of fraud nullified consent on the part of the wife; (2) that, because of her ignorance of her husband's physical condition, the wife's submission without knowledge of the facts is no consent at all, and (3) that inasmuch as under the divorce law of Great Brit107 16 Cox C. C. 511, 1888. ain the act done amounted to "legal cruelty," it could not be considered as within the consent implied by the marital relation. He then states his objections to all three theories. As to the first, he reiterates the assertion that it is an effort to apply to criminal law a doctrine belonging only to contracts, and he cites as an example of what would follow its adoption, the supposed case of a man knowingly purchasing the consent of a prostitute with a counterfeit coin, and says that such a man would, under such a theory, be guilty of rape. As to the second theory, he admits that it is by far the strongest, but he seems afraid to adopt it, because of certain results which he thinks would necessarily flow from it. If this view is correct, he argues it applies equally to the married and to the unmarried, and a greater difficulty is that a man so infecting a woman, even his own wife, is guilty not only of assault, but rape. On this point he says: "To separate the act into two portions, as was suggested in one of the Irish cases, and to say that there was consent to so much of it as did not consist in the administration of an animal poison, seems to me a subtlety of an extreme kind. There is, under the circumstances, just as much and just as little consent to one part of the transaction as to the rest of it. No one can doubt that in this case, had the truth been known, there would have been no consent or even a distant approach to it." The rest of his opinion is taken up with a discussion of the third theory and the applicability of the statute in question, and since said discussion is of merely local importance, we need not enter into it. What we may see from his opinion is that there are two broad grounds on which such a conviction may be supported, and the whole case really gains its significance from the manner in which those grounds are either affirmed or denied by the different judges. In his dissenting opinion Hawkins, J., freely abandoned the first ground as untenable, saying: "In dealing with this case my judgment is not based upon the doctrine that fraud vitiates consent, because I do not think that doctrine applies in the case of sexual intercourse between husband and wife." His affirmation of the conviction is based entirely on the theory that since the wife did not consent to the administration of the poison, the husband was guilty of an assault. As to her consent to the act of connection, he holds that was given once for all and irrevocably at the time of marriage. Such consent, however, only applies to an ordinary, natural and healthy coition, and the wife is entirely within her rights in refusing to permit any other. With regard to Judge Wills' contention that consent must be given to the whole transaction or to none of it, he answers it thus: "My reply to this argument is that if a person having a privilege of which he may avail himself or not at his will and pleasure, cannot exercise it without at the same time doing something not included in this privilege and which is unlawful and dangerous to another, he must either forego his privilege or take the consequences of his unlawful conduct." An answer which is practically the same as Portia's famous invitation to Shylock to take his pound of flesh without spilling a drop of Christian blood. As has been pointed out, the conviction in this case was quashed; and by a majority of nine to four the court announced the astounding fact that a man could infect his wife with a foul disease during marital intercourse and yet walk the streets guiltless of crime. In concluding this topic, it is submitted that the result of the cases is unsatisfactory, and it is suggested that in the future, decisions should be along the following line: In cases of unmarried women, consent to the act of coition should, for reasons of public policy, be held to imply consent to the risk of venereal infection and where such a result follows to the infection itself. In cases of married women, however, the general consent given at marriage should be held to cover the act of connection with a diseased husband but not the infection probably resulting therefrom, and where such infection does result, the husband should be held guilty of an assault upon the wife by the administration of poison. This doctrine of the separability of consent is perfectly reasonable, and is directly in line theoretically with the cases of Iowa v. Cross108 and State v. Atherton,109 which have been dealt with under another head. Unless such a line of reasoning is adopted, it is to be feared that R. v. Clarence must be followed, and even those judges who composed the majority in that case were appalled at the result which they felt obliged to reach, a result which liberated a moral criminal, loathsome, heartless, and mean enough to use the result of his own faithlessness to pollute the body of his innocent wife. We have now reached the end of this article, and in conclusion the writer merely desires to assert that its whole purpose is to insist upon a construction of the word "consent," which is in accordance with common sense. Unless "consent" necessarily implies intelligent appreciation of the thing consented to in all its bearings, it is not consent but merely submission, and submission is no defence, but generally an aggravation to crime. But This subject is in many respects a most unpleasant one, and many of the facts herein recited would soil the page were they not adduced in support of a worthy cause. the cause is worthy, and the writer need offer no apology for anything said in its support. It is for the better protection of female purity that this article has been written, and no cause could be more noble or inspiring. That the law should be so inadequate in this the twentieth century after Christ to protect unfortunate women from pollution is a disgrace to our manhood and to our reason, and it is earnestly hoped that the courts and legislatures will join hands in the near future and overcome those technical difficulties which in this department of the law so seriously impede the administration of justice. Theodore J. Grayson. 108 Supra, note 56. 109 Supra, note 100 PROGRESS OF THE LAW. AS MARKED BY DECISIONS SELECTED FROM THE ADVANCE REPORTS. APPROPRIATION OF LAND. What Constitutes In United States v. Lynah, 23 S. C. R. 349, the Supreme Court of the United States holds that the turning of a valuable rice plantation into an irreclaimable and valueless bog, as the necessary result of an imCompensation provement in navigation undertaken by the United States Government, is a taking of the land, within the meaning of the Fifth Amendment to the Federal Constitution, and therefore the liability of the United States to make just compensation exists and is not defeated because such land was taken by the Government in the exercise of its power to improve navigation. Compare Scranton v. Wheeler, 179 U. S. 141, where it was held that the destruction of access to land abutting on a navigable river by the construction by Congress of a pier on the submerged lands in front of the upland was not a taking of private property for public uses, but only an instance of consequential injury to the property of the riparian owner. CORPORATIONS. Insolvency: Individual Stockholders In Cumberland Lumber Co. v. Clinton Hill Lumber Co., 54 Atl. 452, the Court of Chancery of New Jersey holds that while the stockholders of a corporation cannot interpose any defences to an insolvency suit against it that the corporation itself cannot set up, they can have the validity of matters alleged as a defence. to their liability as stockholders adjudicated in suits brought by the receiver to collect assessments levied against them. Consequently, the insolvency proceeding is not conclusive upon their liability when the suit is brought by the receiver. In Avery v. Preston National Bank, 93 N. W. 1062, the Supreme Court of Michigan holds that where a trustee in a mortgage for the benefit of certain creditors including a bank realized under the mortgage, and deposited the proceeds in the bank in his own name, and subsequently he was appointed receiver for Receivers: Trust Funds |