place, where the fact was alleged to be committed, was where it was poſſible ſhe might have been heard, and ſhe made no outcry; theſe and the like circumſtances carry a ſtrong, but not concluſive, preſumption that her testimony is falſe or feigned.
Moreover, if the rape be charged to be committed on an infant under twelve years of age, ſhe may ſtill be a competent witneſs, if ſhe hath ſenſe and underſtanding to know the nature and obligations of an oath; and, even if ſhe hath not, it is thought by ſir Matthew Hale[1] that ſhe ought to be heard without oath, to give the court information; though that alone will not be ſufficient to convict the offender. And he is of this opinion, firſt, becauſe the nature of the offence being ſecret, there may be no other poſſible proof of the actual fact; though afterwards there may be concurrent circumſtances to corroborate it, proved by other witneſſes: and, ſecondly, becauſe the law allows what the child told her mother, or other relations, to be given in evidence, ſince the nature of the caſe admits frequently of no better proof; and there is much more reaſon for the court to hear the narration of the child herſelf, than to receive it at ſecond hand from thoſe who ſwear they heard her ſay ſo. And indeed it is now ſettled, that infants of any age are to be heard; and, if they have any idea of an oath, to be alſo ſworn: it being found by experience that infants of very tender years often give the clearſt and trueſt testimony. But in any of theſe caſes, whether the child be ſworn or not, it is to be wiſhed, in order to render her evidence credible, that there ſhould be ſome concurrent teſtimony, of time, place and circumſtances, in order to make out the fact; and that the conviction ſhould not be grounded ſingly on the unſupported accuſation of an infant under years of diſcretion. There may be therefore, in many caſes of this nature, witneſſes who are competent, that is, who may be admitted to be heard; and yet, after being heard, may prove not to be credible, or ſuch as the jury is bound to believe. For one excel-
- ↑ 1 Hal. P. C. 634.
