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; and, 1 Com. v. Lafferty, 6 Grat. 672. In a charge to the grand jury Galbraith, P. J., laid this down as the better law for Pennsylvania. He considered that the authorities in this state (see the next notes) have not established a different doctrine. 4 Am. Law Reg. 209. See post, § 658. 2 Ante, § 654a. 3 S. v. Buchanan, 55 Ala. 154, 157; S. v. Fellows, 50 Wis. 65; Com. v. Call, 21 Pick. 509, [32 Am. D. 284;] Com. v. Elwell, 2 Met. 190, [35 Am. D. 398;] Respublica v. Roberts, 2 Dall. 124, 1 Yeates, 6; S. v. Hutchinson, 36 Me. 261; Cook v. S., 11 Ga. 53, 56, [56 Am. D. 410;] Com. v. Burton, Recorder's Decisions, 83, 85; Terr. v. Whitcomb, 1 Mont. 359; Miner v. P., 58 Ill. 59; Hunter v. U. S., 1 Pin. 91, [39 Am. D. 277;] 2 Greenl. Ev., § 48; 6 Dane, Abr. 677; 1 Bishop, Mar., Div. & S., § 703; Bouvier, Law Dict., tit. Adultery; Train & Heard, Prec. 22. And see Godol. Abr. 469-476; Ayl. Parer. 43; S. v. Way, 6 Vt. 311. In the Scotch law.-In Scotland adultery is a statutory crime-"heinous, and in some cases capital; "- but Hume, who wrote near the beginning of the present century, remarked that it "has not, for many years, been the subject of a criminal prosecution." 1 Hume, Crim. Law (2d ed.), 449. An examination of the modern Scotch reports shows also an entire absence of decisions on this offense. Hume says: "Adultery, in our practice, is committed alike, whether it be that a married man has knowledge of an unmarried woman, or that a married woman is known to an unmarried man. It is true the civilians and foreign doctors have much disputed, and not without plausible grounds, whether such was the rule of the civil law or the law of Moses. Neither can it be said that the expressions of our statutes are of themselves decisive of the question either way; and certainly it is not to be denied that the more heinous mode of this offense is in the seduction of a married woman, which is so severe a blow at the husband's peace and the credit and welfare of his family. Yet our custom, perhaps, on the whole, with a wiser policy and sounder judgment, though chiefly actuated of old by consideration of the sin and the peril to the souls of the parties, has always disowned any such distinction, and, in this article as in that of divorce, has invested the spouses with equal privileges, prescribed to both one line of duty, and exposed them to the same hazards." 1 Hume, Crim. Law (2d ed.), 451. In Erskine's Principles of the Law of Scotland (12th ed.), p. 531, it is said: “This crime [adultery] could, neither by the Roman law (l. 6, § 1, ad leg. Jul. de adult.), nor the Jewish (Lev. xx, 10; Deut. xxii, 22), be committed but where the guilty woman was the wife of another. By ours it is adultery if either the man or the woman be married." Mackenzie says: “Adulterium est vitiatio alterius thori, the violation of another's bed, and is com § 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; 1 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 indicated 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 lawful 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 mitted by a married person's lying with one unmarried, or an unmarried person lying with one who is married." He, however, adds: "By the civil law, when a man who was married did lie with a woman who was free, that was judged to be no adultery," a proposition to which he does not assent as belonging to the law of Scotland. Mackenzie, Crim. Law, 118, § 11; [S. v. Fellows, 50 Wis. 65, 6 N. W. R. 239; S. v. Chandler. 96 Ind. 591.] In England, a statute passed in 1857-1 Bishop, Mar., Div. & S., § 65 and note - has made some distinction. But our adultery statutes were earlier enacted; and in every view it cannot affect interpretations 2 Ante, § 654a. 3 Mass. R. S., ch. 130, § 1; Gen. Stats., ch. 165, § 3; Com. v. Reardon, 6 Cush. 78; Com. v. Elwell, 2 Met. 190, [35 Am. D. 398.] 4 Pa. Act of March 31, 1860, § 38, Purd. Dig. (9th ed.) 223. About the time of this enactment the Pennsylvania court settled the law for the state in accordance with its terms. Helfrich v. Com., 33 Pa. St. 68, [75 Am. D. 579.] For the Georgia provisions and their interpretation, see Castleberry v. Kelly, 26 Ga. 606; Cook v. S., 11 Ga. 53, [56 Am. D. 410;] Bigby v. S., 44 Ga. 344 between parties only one of whom is married, both are equally guilty of adultery, and shall be prosecuted accordingly."1 3 § 659. Aider at fact.-If there is a state in which adultery is made a statutory felony, and at the same time no punishment is provided for fornication, the unwritten law, by the rules and reasons whereof all statutes are to be construed, will require the unmarried party in the unlawful act, where only one is married, to be punished for participating with the other as principal in the second degree, unless the statute is in terms to exclude this consequence. Even where the offense is a misdemeanor, the interpretation which imputes legal guilt to the participant will be required if the punishment is heavy, not if it is light. But, in most of the states wherein adultery is punishable, fornication is also, yet less heavily. The statutory terms, therefore, will take the place of the common-law construction; and, the unmarried party being punishable for fornication, he will not be also for participating with the other in adultery. § 660. Consent of non-accused party― (Adultery — Fornication - Incest - Rape).- As every offense to be punishable must be voluntary, so in particular must be adultery. But alike in adultery, and, it is believed, in fornication and in incest, where the crime consists of one's unlawful carnal knowledge of another, it is immaterial whether the other participated under circumstances to incur guilt or not,- just as sodomy may be committed either with a responsible human being or an irresponsible one or a beast. Therefore the same act of penetrating a woman who, for example, is too drunk to give consent, may be prosecuted either as a rape or as adultery,10 at the election of the prosecuting power. There are cases which deny this, and hold that adultery, fornication and incest can be com 1S. v. Wilson, 22 Iowa. 364; [S. v. Taylor, 58 N. H. 331; Mitten v. S., 24 Tex. Ap. 346, 5 S. W. R. 196.] 2 Ante, § 123, 131–144. 7 Com. v. Bakeman, 131 Mass. 577, [41 Am. R. 248;] S. v. Sanders, 30 Iowa, 582. 8 Crim. Law, II, SS 1191-1193; [Hol 3 Ante, § 135; Crim. Law, I, §§ 646- land v. S., 11 Tex. Ap. 182; S. v. 654, 659. Donovan, 61 Iowa, 278, 16 N. W. R. Ante, §§ 145, 594; S. v. Brady, 9 130; Com. v. Bakeman, 131 Mass. 579, Humph. 74. 41 Am. R. 248; Solomon v. S., 39 Tex. Ante, §§ 136, 145, 594; Crim. Law, Civ. R. 140, 45 S. W. R. 706.] I, $$ 656-659. 6 Ante, § 654a 9 Crim. Law, II, §§ 1121, 1124. 10 Com. v. Bakeman, supra. mitted only with consenting persons, and what is rape cannot be one of the others. But they are believed to proceed partly, and perhaps entirely, on special terms of statutes;1 certainly, in principle, they can have no other just foundation. § 661. The carnal knowledge — (Incest).— In a case of incest, in Ohio, the statutory words being "sexual intercourse," the court deemed them to mean the same thing as "carnal knowledge" in rape. Hence, as in this state emission is essential in rape, it was adjudged to be so in incest. On this basis of reasoning, the general American doctrine would hold emission not to be necessary, and simply res in re to suffice.' Upon this question in adultery we have no decisions, but this indication as to incest would seem to furnish the rule; for, in prin ciple, the two offenses are not distinguishable. § 662. Mistake of law — (Invalid divorce-Void marriage). If a married woman whose husband has gone away and formally taken another wife supposes herself to be thereby freed from him, and even if she is so advised by a magistrate who celebrates a marriage between her and another man, the mistake is of law, and it does not excuse her. A carnal intercourse under such second marriage will, therefore, be adultery. And the same consequence follows the like steps after an invalid divorce, however valid it may be believed by the parties to be." Indeed, whenever a formal marriage is void, sexual intercourse under it is adultery, fornication or incest. But, § 663. Mistake of fact.- Where the mistake, instead of being of law, is of fact, it comes within principles already illustrated in analogous offenses, and explained at large in "Criminal 1 Speer v. S., 60 Ga. 381; De Groat v. P., 39 Mich. 124; S. v. Thomas, 53 Iowa, 214; S. v. Shear, 51 Wis. 460. And see S. v. Caldwell, 8 Bax. 576; Baumer v. S., 49 Ind. 544, [19 Am. R. 691.] Compare this section with ante, § 643. 2 Noble v. S., 22 Ohio St. 541. Ante, § 488; Crim. Law, II, §§ 11271132. [Contra, Com. v. Hussey, 157 Mass. 415, 32 N. E. R. 662.] 4 Crim. Law, I, § 294-296; [S. v. Shattuck, 69 Vt. 403, 38 Atl. R. 81.] 5 S. v. Goodenow, 65 Me. 30, 33; [Owens v. S., 94 Ala. 97, 10 S. E. R. 6 Hood v. S., 56 Ind. 263, [26 Am. R. 7 Com. v. Munson, 127 Mass. 459, [34 Am. R. 411;] Territory v. Corbett, 3 Mont. 50; S. v. Fore, 1 Ire. 378. See S. v. Pearce, 2 Blackf. 318; post, § 663. 8 Ante, §§ 490, 596a, 631a-632a. Law." The victim of rape is not an adulteress; nor does a married woman commit this offense, if, deceived by a man who personates her husband, she admits him to intercourse.' Again,― Unknown defect of fact in marriage.-Though, as just seen, a cohabitation under a marriage simply void in law is adultery or fornication, yet, if there is a fact unknown to the parties and not by reasonable care discoverable by them, which renders it void while they believe it to be good, the cohabitation is not a crime. The common instance is where a former husband or wife is through such mistake of fact deemed to be dead, and a second marriage is entered into,- as explained under the title "Polygamy." A case which, contrary to just principle, held that adultery was committed,' is commented on in another connection.8 § 664. Evil mind co-existing with mistake of fact.— The reason why, in the case supposed, the man is free from legal guilt, is because his steps were prompted by a desire to conform to the statute, which, in letter, he disobeyed; and he believed himself to be conforming to it, and to the other laws, and the rules of good morals. The mistake, which he was not able to avoid, impelled him, and the law does not punish people for what they cannot prevent. But carefulness is one of the duties of life; and, consequently, a man may be responsible for mistaking facts because he did not use proper caution or make due inquiry; 10 so that acts performed under a mistake of fact thus produced are punishable." If, therefore, 9 1 Crim. Law, I, SS 301-310, and particularly the long note at § 303a. 2 Ante, § 660. 1 Bishop, Mar., Div. & S., SS 710, 711. 4 Ante, § 662. 51 Bishop, Mar., Div. & S., § 711; [Vaughan v. S., 83 Ala. 55, 3 S. R. 530; Banks v. S., 96 Ala. 78, 11 S. R. 404; S. v. Cody, 111 N. C. 725, 16 S. E. R. 408.] 6 Ante, § 596a. 7 Com. v. Thompson, 11 Allen, 23, [87 Am. D. 685.] Compare with Com. v. Thompson, 6 Allen, 591, [83 Am. D. 653.] 8 Crim. Law, I, § 303a, note, par. 18. 9 Crim. Law, I, § 313 et seq.; [Owens v. S., 94 Ala. 97, 10 S. R. 669.] 10 Rex v. Lediard, Say. 242; Harwood's Case, 1 Mod. 79; Barnes v. S., 19 Conn. 398; Sturges v. Maitland, Anthon, 208; Com. v. Mash, 7 Met. 472, as to which query; and see Alison, Crim. Law, 535, 536, 541, and McDonald's Case, 1 Broun, 238; Crim. Law, I, § 303, 304. 11 Crim. Law, I, § 327, note, 330; 1 East, P. C. 102; Barnes v. S., 19 Conn. 398. |