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And under many there must be established a promise of marriage.

$ 652. Court or jury.— The question of the woman's previous chastity is for the jury. The meanings of such words as “seduce,”: “prostitution,”4 and the like, are of law for the .court, while the jury deduces the facts from the evidence.

v. P., 37 Mich. 518; P. v. Clark, 33 3 S. v. Bierce, 27 Conn. 319; [Bailey
Mich. 112; S. v. Danforth, 48 Iowa, 43, v. S. (Tex. Cr. R.), 30 S. W. R. 669.]
(30 Am. R. 387.]

4 Carpenter v. P., 8 Barb. 603. ["Vir1 Stinehouse v. S., 47 Ind. 17; Com. tuous," definition by the court. v. Walton, 2 Brews. 487; Cook v. P., O'Neill v. S., 85 Ga. 383, 11 S. E. R. 2 Thomp & C. 404

856; McTyier v. 8, 91 Ga 254, 18 8. E 2 S. v. Carron, 18 Iowa, 372, (87 Am. R. 140.] D. 401.)

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CHAPTER XXXIX.

ADULTERY.

8 653. Introduction. 654-668. Law of this offense. 669-690. The procedure.

$ 653. How chapter divided.- We shall consider, I. The law of this offense; II. The procedure.

1. THE LAW OF THIS OFFENSE.

$ 654. Scope of this chapter - Elsewhere. The subject of this chapter is simple adultery. The various forms of continuous and of open adultery and lascivious behavior, indictable under statutes or as common-law nuisances, are considered in other connections.

At common law.— The simple adultery to be treated of in this chapter is not indictable at the common law. But,

$ 654a. Under statutes – Their interpretation. In a considerable number of our states, not all, a single act of adultery is made by statute indictable. The common form of the provision is that one who commits “adultery” shall be punished in a way pointed out; and then it becomes a question of law, what is adultery. Now, although adultery was not punishable in the English common-law courts, it was in the ecclesiastical; : and it was ground also for the divorce from bed and board. The word, therefore, had acquired a precise legal meaning; and, for reasons already explained, the courts, in interpreting the new statute, should give it this established meaning. It is

Adultery defined.— Adultery is the voluntary sexual intercourse of a married person with one not the husband or wife.

1 Ante, S 625; post, SS 695 et seq., 710 Hagg. Ec. 456; Watson v. Thorp, 1 et seq.; Crim. Law, I, SS 38, 39, 500, Phillim. 269. 501, 1083 et seq., 1125 et seq., 1146. 4 Ante, SS 96, 97.

2 Crim. Law, I, SS 38, 39, 501; Pol- 51 Bishop, Mar., Div. & S., & 703; lard v. Lyon, 1 MacAr. 296.

Helfrich v. Com., 33 Pa. St. 68, [75 3 Id., SS 38, 39; 2 Burn, Ec. Law, Am. D. 579.) 402, Lewdness; Burgoyne v. Free, 2

$ 655. Differing judicial views.- Plain as the course of reasoning appears thus far, it has not always been in the minds of our American judges. Largely they have assumed, without inquiry, that the word “adultery” is new in the law; so that, instead of referring it to the ascertained legal meaning, they have sought to define it as a new term. Naturally, discordant opinions have been the result. Some deem the criminal offense committed whenever there is an intercourse whence a spurious issue may proceed; both parties being guilty of it, though one only is married. Again, it is said that “the crime of adultery consists in the illicit commerce of two persons of different sexes, one of whom, at least, is married."2

married." These are conclusions from the assumed premises, that the essence of the offense is the danger of a spurious issue. And, carrying out this theory, it is by some held that even a married man does not commit adultery where the woman is unmarried, since in this instance the issue, should there be any, is not imposed upon the marriage. If this theory is right, a woman naturally barren or past child-bearing might multiply lovers to any extent without violating the statute. No such doctrine has been judicially held, and to propose it to a court would be startling. Again,

$ 656. Continued. — We find, in the books, language seeming to favor the proposition that, where either party is married, the carnal act is adultery in both;' but probably no adjudication has affirmed that a single woman commits it by a connection with a married man. The Virginia court held that, when the woman is married and the man is not, it is only fornication

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IS. v. Wallace, 9 N. H. 515; S. V. 4 S. v. Hinton, 6 Ala. 861; Hull v. Pearce, 2 Blackf. 318; S. v. Armstrong, Hull, 2 Strob. Eq. 174, 187. 4 Minn. 335. And see the reasoning 5 The case of $. v. Hinton, supra, in Galbraith's charge (Pennsylvania), appears to be one of living together 4 Am. Law Reg. 209.

in adultery, between which and sim2 S. v. Hinton, 6 Ala. 864; Hull v. ple adultery there may be a distincHull, 2 Strob. Eq. 174, 187; Tebb’s tion. The unmarried woman, howEssay, 6, 7, 35 Law Mag. 68; Shelf. ever, would be guilty of the offense Mar. & Div. 386; Rees Cyc., tit. For under the statute of Iowa. Post, nication.

$ 658. Whether she would be a prin3 Galbraith's Charge, 4 Am. Law cipal of the second degree, under a Reg. 209; S. v. Lash, 1 Harrison, 380, familiar common-law rule, see post, [32 Am. D. 397;] Hood 2. S., 56 Ind. $ 659. [White v. S., 74 Ala. 31; Banks 263, [26 Am. R. 21.] And see S. v. v. S., 96 Ala. 78, 11 S. R. 404;Webb v. Armstrong, 4 Minn. 335.

S., 24 Tex. Ap. 164, 5 S. W. R. 651.)

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in him. And this conducts us to what we have seen to be the conclusion of reason;? and, let us add, it is also the doctrine deemed best sustained by the authorities; namely, that,

True view.-In all cases where one of the parties to an act of criminal intercourse is married and the other is not, it is adultery in the married party and fornication in the unmarried. Such, by the superior weight of the adjudications, the doctrine is believed to be;s and,

1 Com. v. Lafferty, 6 Grat. 672. In has knowledge of an unmarried a charge to the grand jury Galbraith, woman, or that a married woman is P. J., laid this down as the better law known to an unmarried man. It is for Pennsylvania. He considered that true the civilians and foreign docthe authorities in this state (see the tors have much disputed, and not next notes) have not established a without plausible grounds, whether different doctrine. 4 Am. Law Reg. such was the rule of the civil law or 209. See post, $ 658.

the law of Moses. Neither can it be 2 Ante, & 654a.

said that the expressions of our stat38. v. Buchanan, 55 Ala. 154, 157; utes are of themselves decisive of the S. v. Fellows, 50 Wis. 65; Com. v. Call, question either way; and certainly 21 Pick. 509, [32 Am. D. 284;] Com. v. it is not to be denied that the more Elwell, Met. 190, [35 Am. D. 398;] us ode of this offense the Respublica v. Roberts, 2 Dall. 124, 1 seduction of a married woman, which Yeates, 6; S. v. Hutchinson, 36 Me. is so severe a blow at the husband's 261; Cook v. S., 11 Ga. 53, 56, [56 Am. peace and the credit and welfare of D. 410;] Com. v. Burton, Recorder's his family. Yet our custom, perhaps, Decisions, 83, 85; Terr. v. Whitcomb, on the whole, with a wiser policy and 1 Mont. 359; Miner v. P., 58 Ill. 59; sounder judgment, though chiefly Hunter v. U. S., 1 Pin. 91, [39 Am. D. actuated of old by consideration of 277;] 2 Greenl. Ev., § 48; 6 Dane, Abr, the sin and the peril to the souls of 677; 1 Bishop, Mar., Div. & S., $ 703; the parties, has always disowned any Bouvier, Law Dict., tit. Adultery; such distinction, and, in this article Train & Heard, Prec. 22. And see as in that of divorce, has invested the Godol. Abr. 469–476; Ayl. Parer. 43; spouses with equal privileges, preS. v. Way, 6 Vt. 311.

scribed to both one line of duty, and In the Scotch law.- In Scotland exposed them to the same hazards.” adultery is a statutory crime—"hein- 1 Hume, Crim. Law (2d ed.), 451. In ous, and in some cases capital; "— but Erskine's Principles of the Law of Hume, who wrote near the begin- Scotland (12th ed.), p. 531, it is said: ning of the present century, re. “This crime (adultery] could, neither marked that it “has not, for many by the Roman law (l. 6, § 1, ad leg. Jul. years, been the subject of a criminal de adult.), nor the Jewish (Lev. XX, prosecution.” 1 Hume, Crim. Law 10; Deut. xxii, 22), be committed but (2d ed.), 449. An examination of the where the guilty woman was the modern Scotch reports shows also an wife of another. By ours it is adulentire absence of decisions on this tery if either the man or the woman offense. Hume says: “Adultery, in be married.” Mackenzie says: “Adulour practice, is committed alike, terium est vitiatio alterius thori, the whether it be that a married man violation of another's bed, and is com

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$ 657. Further of reasons. However men may differ in their speculations, our law, from its earliest periods down to the very time when these adultery statutes were enacted, has placed the incontinence of husband and wife on an exact level; granting the same remedy of divorce from bed and board - or, under statutes, from the bond of matrimony - for either; it has had

' constantly one definition, and no more, of “adultery.” We have seen what the definition is. A court sits to administer the law which it finds, not the speculations of the incumbents of the bench or of anybody else. So that, whatever the private views of a judge may be, he should judicially give to the word “adultery” in the statutes under contemplation the meaning which the law had assigned to it, unless the legislature has in. dicated otherwise. Still,

$ 658. Statutory definings.- In some of our states the statutes are in terms to exclude in part or in full these questions and settle doubts. Thus, “When the crime is committed between a married woman and a man who is unmarried, the man shall be deemed guilty of adultery.": Again, “If any married

" man shall have carnal connection with any woman not his law. ful wife, or any married woman have carnal connection with any man not her lawful husband, he or she so offending shall be deemed guilty of adultery; and on conviction be,” etc. A form of different meaning is, “When the crime is committed

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mitted by a married person's lying it cannot affect interpretations with one unmarried, or an unmarried with us. person lying with one who is mar. 2 Ante, S 654a. ried.” He, however, adds: “By the 3 Mass. R. S., ch. 130, $ 1; Gen. Stats., civil law, when a man who was mar. ch. 165, $ 3; Com. v. Reardon, 6 Cush. ried did lie with a woman who was 78; Com. v. Elwell, 2 Met. 190, (35 free, that was judged to be no adul- Am. D. 398.] tery,"— a proposition to which he 4 Pa. Act of March 31, 1860, 8 38, does not assent as belonging to the Purd. Dig. (9th ed.) 223. About the law of Scotland. Mackenzie, Crim. time of this enactment the PennsylLaw, 118, § 11; [S. v. Fellows, 50 vania court settled the law for the Wis. 65, 6 N. W. R. 239; S. v. Chand. state in accordance with its terms. ler, 96 Ind. 591.]

Helfrich v. Com., 33 Pa. St. 68, (75 1 In England, a statute passed in Am. D. 579.] For the Georgia pro1857 — 1 Bishop, Mar., Div. & S., & 65 visions and their interpretation, see and note -- has made some distinc- Castleberry v. Kelly, 26 Ga. 606; Cook tion. But our adultery statutes were v. S., 11 Ga. 53, (56 Am. D. 410;] Bigby earlier enacted; and in every view v. S., 44 Ga. 344

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