16 N.J.L. 380 | N.J. | 1838
At the present term, the opinion of the Court, was delivered by
An indictment was'found by the grand jury of the county of Morris, against Robert Lash, that he being a married man, committed adultery with B. a single woman. This indictment being brought into this Court by Certiorari, the defendant moves that it may be quashed, because the facts on the face of it amount only to fornication, for which he might be lawfully indicted, but do not amount by the common law, to the crime of adultery. If a married man have illicit intercourse with a single woman, there is no doubt but he is guilty of adultery, according to the Ecclesiastical or canon law of the Church; but according to the common law, which is our constitutional guide, I hold it to be demonstrable, that adultery cannot be committed with a single woman; that an illicit intercourse with a single woman can only produce a nullius films, a bastard in law, who possesses no inheritable blood, is incapable of succeeding to any man’s inheritance, and whom she cannot impose as a legitimate heir upon her husband, for she has none, and consequently cannot occasion an adulteration of issue.
Neither fornication nor adultery were indictable offences at the common law; they were held to be only private wrongs, for which the aggressor was answerable in a civil action, for exemplary damages; and this continued to be the case, except for one short revolutionary period of time in England, until our own legislature made them indictable offences. For these enactments, we need go no further back than the year 1799, Revised Latos, 248; the 14th section whereof enacts, “ that every person who shall commit adultery, shall be punished by fine not exceeding one hundred dollars or imprisonment not exceeding six months; ” and the 15th section, “that every person who shall commit fornication, shall be punished by a fine of fourteen dollars; ” not defining what shall constitute adultery, or what shall constitute fornication ; leaving each to be determined by reference to the
The canonical law is not adopted in the written constitution of New-Jersey. The Popish clergy those zealous abettors of arbitrary power, during the time they sat as the only Judges in the Ecclesiastical Courts and the Court of Chancery, naturally introduced into them, the imperial laws of Rome; not only as to the mode of proceeding without a jury, but the maxims and principles established in the rescripts of emperors, decrees of general councils, opinions of the ancient fathers of the church, and decretal epistles of the Popes. But the common law was so favorable to the liberties ©f the nation, and consequently dear to the people, that their utmost zeal could never introduce these principles into the Courts of the common law; wherefore refusing to sit any more as Judges in the Temporal Courts, but retaining the Court of Chancery and Ecclesiastical Courts in their own'hands, they so enlarged their jurisdictions beyond the immediate cares of religion, as to engross the cognizance of many secular concerns; such as the probate of wills; granting letters of administration and guardianship; the settlement and distribution of the estates of persons deceased; deciding on the legality of marriages; and the power of divorcing for adultery. In settling what should constitute this charge, they deemed it almost heresy to take the common law for their guide, which law limited it to criminal intercourse with another man’s wife,
Justice Ryerson, whose attendance here, is prevented by sickness, has written an opinion against the motion to quash this indictment.
I have prepared an opinion, which it is unnecessary to read, according with that of Justice Ford.
This question has never before been determined in this state, I believe: although the law has ever since the year 1704, provided a punishment for the offence.
In Pennsylvania, is a similar law, on which there has been made a different construction.
It has there been decided, that the criminal connection of a single man with a married woman, is not adultery, in him. An unmarried defendant cannot be convicted of adultery, although the other party should be married. 2 Dall. 124; 1 Yeates 6, S. G.
Gave no opinion, having argued the case as Attorney-General.
Was not on the bench when this case was argued; and gave no opinion.
Indictment quashed.
Neither of these opinions has been received by the Reporter.