Respublica v. Roberts

Adultery under the act of assembly of 1705, can only be committed by married persons. Under an indictment for adultery, defendant may be convicted of fornication. Cited in 17 Pa., 130, to support the proposition that an indictment for se. duction under the statute includes the charge of fornication.

The defendant was tried at the last Nisi Prius court for Bucks county, and a special verdict found by consent. It stated, that he was an unmarried man, and had been guilty of criminal conversation with Isabella M’Glister, a married woman, her husband being then and now in full life. And whether the same were punishable as adultery in him, was the question. He had also been charged with bastardy, but as the attorney general had admitted at the trial that her husband had not been far distant from her, and that she was not a competent witness to prove the want of access, he was acquitted of that charge by consent. contended that the facts found involved him in the offence of adultery; that the act of assembly in 1705 did not describe what adultery was, and therefore the only point was, what was the received idea of the legislature when they passed the law. That the rule of construction, as settled in 1 Blackst. Com. 59, was to find out the meaning either in the common and popular sense, or considered as a technical term according to the received sense of the learned in that science. To establish the common and popular sense of the word, he cited Johnston’s Diet. Voc. Adultery — 20 cap. Eeviticus, verse 10 — 19 cap. Matthew 9 — 6 cap. Proverbs 29th and 32d verses; where the word is used as a general violation of the marriage bed, according to its derivation, 11 ad ulterius thorum'n ascenderé. To fix its technical sense, he cited 2 Inst. 486, 435. Cowel’s Daw Diet. Voc. Adultery. 4 Blackst. 64, 65, 191. 4 Burr. 2057. Pandects of the Cival Raw, 82. Wood’s Inst, of Civil Daw, 300, 261. 2 Ed. Raym. 802. Raws of Connecticut, pa. 8, and Espinasse 430, that actions of crim. con. are stiled in the modern books, actions of adultery. contended that the crime was different iii the civil and canon laws, and cited Encyclo-poedia Voc. Adultery, and that the act of assembly particlarly describing that an unmarried woman having a child born of her body shall be deemed guilty of fornication, could not intend that the offence of an unmarried man should be greater than that of an unmarried' woman. And that the true mode of fixing the meaning of the term was by the uniform general practice of courts of justice, who had proceeded only againsl married persons as having been guilty of adultery. *To this the attorney general replied, that no argu- p» ment can be drawn from the practice, as it had received L no judicial decision, and that public prosecutors might proceed against the party offending for the lesser offence, for a variety of reasons, as he himself had actually done this term; and further cited Paley’s Moral Philosophy, 201.