
    *Respublica against James 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.
    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.
    Mr. Bradford, attorney general,
    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.
    Mr. Sergeant for the defendant
    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.
    Cited in 17 Pa., 130, to support the proposition that an indictment for se. duction under the statute includes the charge of fornication.
    *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.
   Per Cur.

The single question is, whether an unmarried man may be guilty of adultery, under the act of assembly. Originally the offence was of temporal jurisdiction, but after the statute of cirmmspecte agatis, it was remitted to the bishop of Norwich, and through him to the spiritual courts.

Had the case been res integra, the decision of the court might be different from what it now is. It is true that practice sttb silentio will not make the law, but it is strong evidence of what the law is. It having been the constant practice to proceed against unmarried persons for fornication, though they may have been guilty of criminal conversation with married persons, we will not exaggerate the offence, nor carry it further than our predecessors have done: and therefore the court pronounce him guilty of fornication, and fine him iol. and the costs, and commit him to the sheriff of Philadelphia county, who always executes the process of the court in bank.

Shippen, J.

The practice above mentioned is truly stated from my personal knowledge for forty-eight years past.

Another point occurred in the special verdict, which was not however contended by the defendant’s counsel. It was whether on an indictment for adultery, defendant might be convicted of fornication. It was said by Mr. Bradford, that the larger offence included the smaller, and that it might justly be resembled to an indictment for murder, where one might be convicted of manslaughter, or to robbery, wheie one might be convicted of felony, or to a felonious trespass, where one might be convicted of the trespass, though the jury might acquit the party of the murder, robbery, or felonious trespass: and of that opinion was the whole court.  