The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1867-05-24

overt act IS charged, no WllIWS OI
picture or indecent exposure. OF person
is alleged; inviting, indeed, is suggested,
but mere solicitation. And the man
ner of this is not limited. II may have
been by direct request, by inuendo, by argu-
ment, founded as has sometimes happened,
upon Scriptural texts and analogies, or IL may
have been by gay and frivolous aneedote on
appeal. Possibly nothing was SAID. put only
impure thoughts insinuated by looks or ges-
lures. What evidence shall be sufficient to sus-
tain such charge? Nothing equivalent TO an
attempt is alleged. OF course, the evidence
! would fall short of an attempt, and what would
| il consist Of? We have no precedent for such
a case, and as pTecedents are evidence of the
| law, the lack Of them Implies that the law has
never undertaken TO redress such an indefinite
ofense as is charged here. The authorities TO
which have adverted yield no support to the
indictment, unless we confound legal distinc-
Ions . o,a .scSS .sS eve thst may be con'
sdered solicitation of chastity as an attempt
upon chastity. In high moral sense it may be
true that solicitation is attempt, but in legal
sense il is not And the law is as likely to be
distorted by pressing it into extrayagant re.
forms OF the manners of men and women, as 1t
Ii by too loose an administration.
The diligence of counsel has succeeded in
finding but one case, that of State VS.. Avery, 2
Conn. R.. 267, that goes TO support the indict.
ment. That was an information in the nature
Of an Indictment for writing and sending to
q married woman scandalous letter. inviting
her TO an assignation for adulterous purposes.
The Court sustained the prosecution as for
libel, but added, d1gGtendo, that If 1t were not
libel II was not indlctable as a solicitation
to commit felony and for this Higgins case
was cited and relied upon. By the Connecticut
statutes adultery was q felony, and was in that
case. That this IN principle was Higgins case
over again, and is dIstngushable from the soli-
citation charged here, which was not 70 commit
felony. On another ground it is distinguish
able also, for the sending of the letter was an
overt act, which might be considered sufficient
to raise the otfense to an attempt to debauch
married woman, which we agree is indlctable.
Various forms of malicious mischief have
been held indictable in Pennsy lvania, and gross
and obscene language, publicly uttered IN the
streets, has been indicted, but in all such cases
the overt act, not the guilty intent, constituted
the ofiense.
Nothing being alleged in this case which can
be th ought to amount to an attempt upon the
chastity OF the wife of the prosecutor, the judg-
ment is reversed.
Smith VS.. Comm onwealth. Agnew, ITO
| solicit a wife to commit adultery, and, conse-
| quently, TO attempt to corrupt m orals,
| contemn religion, wrong her husband, and en-
| danger the peace OF society, is SAID not to be
| an indictable Otense. / am unwilling to assert
this IN the light OF the present age to people
protesting Christianity, and recognizing the
Decalogue as the express command of God.
To me it proves nothing that adultery was
not punishable in England. In 1850 we are in
formed by Sir William Blackstone a Conn.,, p.
64) that this ohense was made capital. "But at
the Restoration, when men, from an abb or
renee OF the hypocrisy of the late times fell into
not thought proper to renew a law of such un-
fashionable rigor. And these offenses have been
ever since left to the feeble coercion of the
spiritual court, according to the rules of the
common lava law which has treated the
olense of ncontinency, nay, even adultery itself,
with good degree OF tenderness and lenity,
owing perhaps to the constrained celibacy of its
first compilers. The temporal courts take no
cogniZance Of the crime of adultery otherwise
than as a private injury" But such sys-
tenn tenn has no application in state whose
Court from which he withdrew, and among
people whose moral sense, so early as the year
l705, declared that, for the preservation of
virtue, chastity, and purity, and for the preven-
tion OF the heinous sin OF adultery, any one
thereof convicted should receive on his bare
back twenty-one lashes, well laid on, at the
common Whipping.post, and suffer imprison-
ment for one whole year at hard labor. Lord
Mansfield, speaking of ofenses of incontinence,
in Rex V. Deloval and Burrows, l43S, said: They
tall properly under the jurisdiction of the Eccle
siastical Court, and are appropriated to it.
But if you except these appropriated cases, this
Court is The cdStos moTU2l of the people, and has
the superintendency of ofenses contra bOnOs
noreS." To exhibit an obscene picture is indict
able because it is contrary TO good morals but
is an actual proposition OF lust to a married
woman less injurious or less melting TO pru-
rient desire? The English law, and the lIcen-
tious Court of the Second Charles, are not,
therefore, the pure fountains from which we
should draw the living principles of our laws
as to this ofense To do justice to society and
to ourselves as the custodians OF public morals,
as G. j. Tlghman also termed the judges OF this
Court, we must resort to our own legislation,
and the general principles of the common law,
instead of the exception introduced by pro-
fiigate monarch and system of jurisprudence
differing in this special case from our own.
To solicit a married woman's chastity is to
counsel and to endeavor to procure the commits
sion of an otfense indictable at law, and forbid
den by the Divine command. In the perpetra-
tion OF felony, the wiser would be an access
sorry before the fact, and in the commission of
misdemeanor ne would be a principal. To steal
a few trifling articles, to touch another rudely,
and to ridicule him in writing, are public o6enses
because OF their tendency. But what greater
injury are these than the loathsome proposal of
lust to the mind of a sensitive woman? If we
protect viTtuous wife, faithful TO her marriage
VOW, and perhaps the mother of children, from
such indignity, 1t does not follow that we must
become the QuiXotic defenders of a strumpet,
who hangs out the flag of surrender over the
abandoned citadel of virtue.
Nor should human infrmity look upon the
ofense as Venial. If such solicitation be left
only to the lash of society as its punishment,
what protection has chaste woman against
one who pursues her with his opportunities If
his wanton proposal be no breach of the peace
she can have no bail to keep the peace. II, in
her own Vindication, she takes the law into her
hands, ard with it the life OF her prosecutor,
who would pronounce her ohense more than
manslaughter? The proVocatlon could be no
greater, and passion corresponding, she must be
acquitted OF malice prepense. Thus human
life might be lost from want of protection. But
thinking woman is more apt to fly TO her hus-
| band for relief; and what husband would fail to
! defend her, and castigate her annoyer? A libel
| has, In its tendency to breach of the peace, no
| comparison to an insult of this kind The con-
sequences are also contra bOnOs moreS. To suffer
| such solicitations is to fan the flames of lust;
furnishing II an opportunity gradually to under
| mine the citadel of virtue; and giving to vice
| mlCn which is hideOus at first hut. tolerated at