The first and most material point to be proved is, that the venereal congress or coition has actually taken place; but as to the exact legal definition of this act, much difference of opinion has existed; for while some learned authorities have held, that penetration alone is necessary, others have maintained that the crime is not perfected without _emissio seminis_ also. Lord _Coke_, defining “_carnal knowledge_,” says, there must be _penetratio_, that is _res in re_; but the least penetration maketh it carnal knowledge.[621] So in the case of _Russen_ the schoolmaster, it was proved by two surgeons on behalf of the prisoner, and corroborated by four others who had examined the girl, that the Hymen (which _they_ considered an indubitable mark of virginity[622]) was whole and unbroken, and that the passage was so narrow that a finger could not be introduced. But it was admitted that this membrane, the existence or non-existence of which has been strongly controverted,[623] was in some instances situated an inch or an inch and a half beyond the Vagina;[624] and Mr. Justice _Ashhurst_, who tried the prisoner, left it to the jury whether any penetration were proved, for if there were any, however small, the rape was complete in law. The jury found him guilty, and he received judgment of death. But before the time of execution, the matter being much discussed, the learned judge reported the case to the other judges for their opinions, whether his direction were proper. And upon a conference, it was unanimously agreed by all assembled (in the absence of _De Grey_, C. J. and _Eyre_ B.) that the direction of the judge were perfectly right. They held that in such cases, the least degree of penetration is sufficient, though it may not be attended with the deprivation of the marks of virginity. It was therefore properly left to the jury by the judge; and accordingly the prisoner was executed. This decision appears to be well warranted by physiological observation, for as it is evident from the concurrent testimony of the highest medical authorities, that penetration _in vaginam_, is not necessary to conception, (_vide ante, p._ 203.) it would be absurd to contend that more were necessary to constitute Rape in law, than Generation in nature[625]. The utmost wrong to the one party, and the malignant intent of the other, have been complete; and the injury on the one hand, and malice on the other, are truer criteria for the administration of justice, than the dicta of lawyers, or the etymologies of schoolmen.