Page:The American Cyclopædia (1879) Volume I.djvu/156

 136 ADULTERY that she had shown an improper fondness for the man; if they had been detected in clan- destine correspondence, had had private meet- ings, or made passionate declarations; if her affection had been alienated from her hus- band, or it appeared that her mind and heart were already depraved, and nothing was want- ing but an opportunity to consummate the guilty purpose; then proof that such oppor- tunity had occurred in connection with some or all of these other circumstances, according to the nature of the case, would lead to the satisfactory conclusion that the act had been committed. The guilty consummation, in short, may be fairly and conclusively presumed from such circumstances of conduct as, on grounds of common experience and common sense, would lead the discreet and careful judgment of a reasonable and just man to that conclusion. But, on the same principles, the conclusion may not be fairly or justly deduced, even when a witness testifies to the actual fact of adultery; for his testimony may be un- worthy of credit, either because he is mistaken or because he does not speak the truth. On this ground the direct but uncorroborated evidence of two prostitutes as to the very act has been held insufficient proof of it; and on the same principle, the testimony even of the paramour of the defendant may require con- firmation. Such a person, it has been said, is an accomplice, and all the legal considerations applicable to such a witness must be applied to him or her. Upon the same principles and within the same spirit of construction already suggested, acts in themselves rather innocent and indifferent may take the color of guilt from proof of other circumstances attending them. Thus the mere visit of a married woman to the lodgings of a single man has been held insufficient, alone, to establish criminality ; but the act receives a different complexion when there is also proof of correspondence or other im- proper conduct between the parties. So, though a mere correspondence or intimacy with the al- leged paramour would not be by itself sufficient, proof that there had been falsehood or conceal- ment in respect to these things might justify the inference of guilt Again, the difference between the higher and lower classes of society in their habits of life and social manners must be taken into the account in passing upon the behavior of parties in certain instances. For indelicate acts and demeanor, wlrich among the vulgar may be consistent with innocence, may deserve no such favorable significance when observed among those whose breeding is finer. (See DIVORCE.) II. The criminal offence. Adul- tery, by which is here meant the mere private act, is not a crime nor indictable at common law. Before the famous adultery act of 1650, in the time of the commonwealth, there was no law in England against adultery and the kindred acts as criminal offences. This statute intro- duced at once the utmost severity, ordaining death for incest and adultery, and three months' imprisonment for simple fornication, and making a second offence felony without cler- gy. The act was repealed at the restoration, and nothing was substituted in its place. Adul- tery, however, has been, theoretically at least, punishable in England by virtue of unwritten law in the ecclesiastical courts, though the of- fence has never been pursued with any great or systematic vigor ; and it may be remembered that Blackstone charges the framers of the canon law with an improper levity in respect to this sort of offences from their own aptitude to commit them. In Scotland there is still, or until very recently there was, on its statute book a law making adultery and incest capital offences. The statute, as to adultery at all events, has been long in disuse. In many of the United States adultery is made criminal by special statutes, but in as many more it is not criminal. But though the simple act is not a crime in Ohio, Indiana, Illinois, Missouri, Lou- isiana, and other states, yet in many of them open and notorious adultery is criminal. The nature of the offence of adultery, created by statutes, is sometimes clearly denned by their provisions; but many of the statutes on this head simply declare the punishment of adul- tery, using the word as if it had a precisely as- certained meaning. In such cases it has been necessary for the courts to determine what acts were intended to be covered by the word ; and upon this point has arisen an extreme diversity of opinion on account of the different views which have been taken of the policy of the law on the subject. Thus it has been sometimes said that an unmarried man's illicit intercourse with a married woman is adultery on his part, because he may impose a spurious issue upon the husband ; and, upon the same ground, that a man, though married, does not commit adul- tery in having intercourse with an unmarried woman, because in that case there is no possi- bility of that result. It has also been said that when either of the parties to the act is married, though the other is not, both commit adultery. In Massachusetts the statute expressly provides that when the crime is committed between a married woman and an unmarried man, the latter shall be deemed guilty of criminal adul- tery, and be liable to the punishment prescribed for that offence. The statute of Minnesota is to the same effect. In the absence of such pro- visions, it has been held in New Jersey, for ex- ample, that in such a case the man does not commit the crime, and in Virginia that his act is only fornication. In Connecticut the statute provides that " every man and every married woman who shall commit the crime of adul- tery with each other shall be punished with imprisonment." The statute of Iowa declares that when the crime is committed between persons only one of whom is married, both are guilty of adultery, and shall be punished ac- cordingly. It seems on the whole to be the prevailing and better rule, when positive enact- ments do not forbid it, that when one of the