State v. Brunson

18 S.C.L. 149

• Court: Court of Appeals of South Carolina
• Decided: February 15, 1831
• Status: Published

Opinion

Johnson J.

delivered the opinion of the Court.

Mr. Justice Blackstone classes adultery and fornication amongst the offences against God and religion, which belong exclusively to the jurisdiction of the spiritual Court. 4 Bl. Com. 65. And whatever former opinions may have been, the modern writers all agree that they are not indictable at common law. The husband of an adulteress has his remedy by action against her seducer; and beyond this the common law furnishes neither remedy nor punishment. Our own books of reports contain no instance of such a prosecution; nor do I now remember ever to have heard of one in our courts. On the contrary, I know it has been the received opinion of the bar, and the bench, for the last twenty-five years, that it could not be maintained.

The heinousness of this offence, as it affects families and individuals, is conceded by ail. There is none in the whole catalogue of wrongs, which is calculated to inflict more deep and indelible wounds: and yet it may well be questioned, whether the common law has not consulted the best interests of society, by leaving its punishment to the reprobation of public opinion. Cases of very gross and flagrant character, do sometimes occur, which would seem to require correction; but in providing for them, we must establish an inquisition, clothed with the authority of the law, to expose, and give interpretation to every word and action which occur in the intercourse of society. The delicacy and frangibility of the female character is scarcely realized in poetie fancy. The breath of slander withers it in an instant. Touch it and it is annihilated. With such an engine in the hands of the abandoned and reckless, where would be its security? At once the accuser, and the witness, of a charge difficult of contradiction, a malignant enemy has but to mark his victim, and the law sets its seal upon her.

Rude and unpolished as some of the rules of the common law appear to be, upon a superficial view, it will be found upon a more careful examination, that its illustrious founders were deeply read in human nature; and that they have done for the most part, all that human wisdom could do, to protect the weak and innocent from the strong and designing. To remodel that venerable monument, ought never to be attempted, but with great caution, and a gentle hand.

An attempt .has been made in the argument to support this indictment, on the allegation contained in it, that these defendants lived “ in open lewdness, whoredom and adultery,” which is contended to be an offence against public decency, and therefore indictable. As an act of adultery, the offence is but adultery, whether it was perpetrated openly or covertly. If there was any thing in the manner, which constituted an indictable offence, that, according to well settled rules, should have been set out. The indictment wanting this, the judgment must be arrested'.