dissenting. I cannot concur in the opinion expressed by a majority of the court. It is to be conceded, that in prosecutions of this kind, the general character of the prosecutrix for chastity is involved, and put in issue, and the rule relative to the impeachment of her character, in this respect, is thus summed up in Green-leaf’s Ev. vol. 3, § 214. “ It must be done by general evidence of her reputation, in that respect, and not by evidence of particular instances of unchastity, nor cari she be interrogated as to a criminal connection with any other person, except as to her previous intercourse with the prisoner himself.” The rule is substantially the same in all the elementary writers upon evidence that I have been called upon to examine. A general want of chastity may furnish a basis for a presumption that the illicit connection was by consent, and thus it becomes material to the issue. But no such presumption should be allowed to arise from a particular instance of an illicit connection with another person. Presumptions cannot rest upon mere suggestion or surmise.- They must have some ground to stand upon, some facts upon which they can arise. I *519am fully aware that in the case of The People v. Abbott, 19 Wend. 192, the law is claimed to be, that in prosecutions of this kind, the defendant may prove a particular instance of a previous illicit connection between the prosecutrix and another person, and that such fact may be proved upon a cross-exhmination of the prosecutrix, or by any other witness. I must say, that I consider the case in the 19 Wendell, as a departure from the English law upon this subject, and as theoretical, and unsound in principle, and, for one, I have no disposition to follow the lead of that case. The error in that case, in my view, is, in assuming that a presumption of consent might arise from the fact of a previous illicit connection with some other person, and when Judge Cowen undertook to dispose of the cases of Hex v. Hodgson and Hex v. Clark, as being overruled by the laws of human nature, I think he undertook too much. Though we may concede, so far as our moral convictions are concerned, to use the language of Judge Cowen, that “ one who has already started on the road to prostitution, would be less reluctant to pursue her course, than one who still remained at her home of innocence,” -yet courts of justice cannot act upon evidence addressed simply to their moral convictions. It might, no doubt, have an effect upon our moral convictions, to show on a trial for theft, that the defendant was given to stealing, yet courts of justice could not act upon such a fact, and why should we presume that a female continues in a voluntary course of lewdness, because she has had, at some previous time, asexual connection with some other man. If the law will not allow such evidence to be the basis of a presumption, it should not be received. In Rex v. Hodgson, Russell & Ryan’s Crown Cases 211, and in Rex v. Clark, 2 Stark. 241, it was expressly held that evidence of particular acts of intercourse between the prosecutrix and other persons, could not be shown by the defendant.
In the case of the The State v. Jefferson, 6 Iredell 305, the •court of Norih Carolina, upon the authority of those cases, excluded, as irrelevant to the issue, particular acts of familiarity with other men, and this was the very point in judgment in that case. The only point decided in Camp v. The State of Georgia, 3 Kel. 419, was, that general evidence of want of chastity was admissible.
It is said in the case of The People v. Abbott, in Wendell, that *520the cases of Rex v. Hodgson, and Rex v. Clark, have been given up in England, but, to my mind, the remark is gratuitous. The cases which show that a previous connection with the defendant himself is admissible, stand upon that peculiar ground, and such was the case of Rex v. Aspinwall, 2 Starkie’s Ev. 700, and also the case of Rex v. The Martins, 6 Carr. & Payne 562. This latter case goes no further. Though Williams. J., in this latter case, remarked that he was counsel in the case of Rex v. Hodgson, and could never understand that case, jet that does not show that that case has ever been given up or shaken in England. The case of Rex v. The Martins, was at nisi prius, and no such question was before the court as was decided in Rex v. Hodgson, and it is no uncommon thing for counsel not to be able to comprehend a decision adverse to their client.
The very nature of things show, that previous acts of familiarity between the prosecutrix and the prisoner, stand upon that peculiar ground, and are competent, as tending to prove consent. In the case of Regina v. Cloys, 5 Cox’s Crown Cases 146, decided in 1851, the learned counsel for the prisoner conceded the law to be, that he could not go into particular acts. It can hardly be supposed that this concession would have been made, if Rex v. Hodgson and Rex v. Clark, had been given up in England. It has been said that the case of Rex v. Barker, 3 Carr. & Payne 589, shows that proof of particular facts may be given in evidence, and is opposed to Rex v. Hodgson and Rex v. Clark. But I think not. In the case in the 19th Wendell, the case of Rex v. Barker is treated as an authority to show that general evidence of bad character, as to chastity, may be received, and the case is viewed in the same light by Patterson, J., in Regina v. Cloys, 5 Cox’s Crown Cases. Though Parke, J., who tried the case of Rex v. Barker, at first thought that to permit the prosecutrix to be inquired of whether she was not, on a particular day, walking in High street of Oxford, to look out for men, with a woman reputed to be a common prostitute, would be to conflict with Rex v. Hodgson, and Rex v. Clark, and allow particular acts to be proved, but upon consultation, the inquiry was allowed to be put, and I think correctly. It was proving something more than particular acts. High street, no doubt, was understood to be a common resort for *521•women of ill fame, and would be avoided by all virtuous women, and if a female was found walking in that street to look out for men, in company with a woman reputed to be a common prostitute, it would tend to show that she also was a common prostitute, and in character, it would be the same thing as to show she was aminmate of a house of ill fame. That this case stands upon the ground, that the facts offered to be proved went to show a general want of chastity, would seem to follow, from the fact that the inquiry was not confined to a time previous to the alleged rape. If it was regarded as evidence of a particular fact, the court would no doubt, have confined the counsel to acts previous to the alleged offence, if they had decided to admit the testimony at all. In The People v. Abbott, the evidence was confined to a previous connection. So it is in the civil actions for seduction. See Elsam v. Faucett, 2 Espinasse 562; Cook v. Berty, 12 Modern 232.
In cases of seduction the defendant may prove on trial that the daughter has been previously criminal with other persons, and such is the case of Verry v. Watkins, 7 Carr. & Payne, 308; but it is only admissible on the question of damages.
The plaintiff cannot object to the proof of such facts by witnesses called by the defendant on the ground of surprise. She is bound to come prepared to meet them, they being pertinent on the question of damages. But in an indictment for a rape, such prior acts of criminal conduct are not competent under the issue. If they were, the government attorney could not claim to reject them on the ground of surprise. To preclude the defendant from proving such facts by witnesses by him called, on the ground of surprise to the other party, and yet permit him to prove the same facts upon a cross examination of the prosecutrix, looks to me like judicial trifling. If the defendant cannot prove a prior connection between the prosecutrix and a third person, by witnesses by him called, it must, I think, follow, from principle, that he could not prove the same facts by the prosecutrix herself.
It is equally immaterial to the issue in either ease; and it is, in my mind, of no importance from what source it is sought to make proof of the fact.
With this view, I have no occasion to examine the question of *522privilege, and to see whether, if it existed in the present case, it was properly called into exercise in behalf of the witness.
The attorney for the government objected to the questions put to the witness; and the court refused to allow the question to be put.
It is assumed that the privilege of the witness being personal, it would be error in a court to exclude a question material to the issue, and which the witness was not bound to answer, unless the witness first claimed her privilege. But I hold it to be the duty of the court to protect a witness ; and when a question is put to one, though it may be material to the issue, which upon its face he is not bound to answer, the court may, upon its own mere motion, or upon motion of counsel, refuse to allow the question to be put to the witness. This has been the usual practice at nisi prius. See Rex v. Hodgson, R. & R. 211; Dodd v. Norris, 3 Camp. 519 ; Rex v. Lewis, 4 Espinasse 222; Cundell v. Pratt, 1 M. & Malk. 108. If the witness remains mute, it may well be considered he adopts the claim of privilege made in his behalf.
If the witness waives his privilege, he should be examined. If it was necessary to sustain the ruling of the county court, it might well be presumed the court proceeded upon the ground of the privilege of the witness; but considering the testimony, as I do, not relevent to the issue, it is of no importance further to consider the question of privilege, and whether it existed or not.
In regard to the count in the indictment, for incest, it strikes me that the fact, that the prosecutrix stated that she had been delivered of a child in consequence of the connection with the respondent, was of no possible importance. It seemed to have fallen out inadvertently. It was a fact not sought for by the prosecution, and not objected to by the defendant. The simple fact that the girl was delivered of a child, had no tendency to prove that such child was begotten by the defendant, and, much less, to prove that the sexual connection in which it was begotten was against her will. It is a fact in no way confirmatory or bearing upon the position that the daughter had an illicit connection with the father) which is the point to be established under the count for incest.
If, then, the fact of her pregnancy, and the birth of the child, were of no importance to the prosecution, and irrelevant and immaterial to the issue, the case called for no rebutting testimony in *523that .particular, and it was not error for the court to exclude such testimony when offered. In cases of seduction, the birth of a child begotten by the defendant, is a material part of the plaintiff’s case; and in prosecutions for bastardy, where the question is upon the paternity of the child, it is quite material in defense, to show that the mother had connection, about the time she swears the child was begotten, with other men. In prosecutions of that character, such a fact has always been allowed to he proved in our courts, and the inquiry, as to it, has been allowed to he made of the mother, who appears as a witness to sustain the prosecution. The inquiry, however, must he confined to about or near the time the child was begotten; otherwise it becomes immaterial. In the inquiry put to the prosecutrix, as to her connection with other men, before the child was begotten, there is no limitation as to time. The time subsequent, is only limited, by the inquiry, to some period before she discovered she was in a state of pregnancy. It might have been one, two or three days before, as well as at any other time. If this had been a prosecution to fix the paternity of an illegitimate child, the inquiries proposed to be made of the girl, were too unlimited, in range of time, to have rendered their rejection error. I think all the evidence, the object of which was to show particular instances of lewdness between the prosecutrix and other persons, was properly excluded, whether to he proved upon a cross-examination of the prosecutrix, or by witnesses called on the defense.