Gornell Law School Library Cornell University Library KF 510.B62 1859 Commentaries on the law of marriage and ic 110 WasHineton St., Boston, Marcu 1, 1861. A LIST OF LAW BOOKS, PUBLISHED BY LITTLE, BROWN AND COMPANY, 110 WASHINGTON STREET, BOSTON. ae OG Any of the following books will be sent by mail, free of postage, on receipt of the publication price. V—ooOo We invite the attention of the Profession to our extensive and continually increasing stock of Law Books, both Foreign and Domestic, embracing every branch and de- partment of Jurisprudence. Catalogues will be sent on receipt of postage. ABBOTT (Charles, Lord Tenterden).— A Treatise of the Law relative to Merchant Ships and Seamen. The Eighth Eng- lish Edition, by William Shee. The Seventh American Edition, with the Notes of Mr. Justice Story, and additional speinausale by Hon. J. C. Perkins. Royal 8vo. : ABBOTT BROTHERS. — Reports of Giga in Admiralty, Argued and Determined in the District Court of the nee States for the Southern District of New York. 8vo. ADMIRALTY REPORTS (English), complete series, com- mencing with Mariott and coming down to Robinson, Vol. IIL, 10th Victoria. Edited, with Lee etc. » by sak ge-Minot, Esq. 9 vols. 8vo. AMERICAN RAILWAY CASES, a deialets baleen: with Notes and References to ‘American Railway, Canal, and Turnpike Cases, i ehenneey poi and samuel W. Bates. 2 vols. 8vo. . ANDREWS (C. C.).—A Pratical Treatise on the Revenue Laws of the United States. 8vo. A s ANGELL (Joseph K.).— A Treatise on the ihe concerning the Liabilities and See of a Carriers. Third edition. 8vo. . . . . . ‘ . . $7.50 31.50 9.00 3.50 2 ANGELL (Joseph K.).—A Treatise on the Limitations of Actions at Law and Suits in Equity and Admiralty, with an Appendix containing the American and English Statutes of Limi- tations, and embracing the latest Acts on the subject. Fourth edi- tion, revised and greatly enlarged. By John Wilder May. 8vo. A Treatise on the Right of Prop- erty in Tide Waters, and in the Soil and Shores thereof. Second edition. Revised, corrected, and much enlarged. 8vo. E A Treatise on the Common Law in Relation to Watercourses. Fifth edition. 8vo. . ‘ : A Treatise on the Law of Life and Fire Insurance, with an Appendix, containing forms, tables, etc. Second edition. 8vo. 7 4 . : and AMES (Samuel).— A Trea- tise on the Law of Private Corporations Aggregate. Sixth edi- tion, enlarged. 8vo. . s : i ‘ = - 2 > and DURFEE (Thomas).— A Treatise on the Laws of Highways. 8vo. BENNETT (E. H.) and HEARD (F. F.).— A Collection of oe Cases in the various branches of the Criminal Law. 2 vols. 8vo. . . . . * * . . . BISHOP (Joel P.):— Commentaries on the Criminal Law. Second edition, enlarged. 2 vols. 8vo. . : z . : Treatise on the Law of Marriage and Divorce, and Evidence in Matrimonial Suits. Third edition, en- larged. 8vo. é . ‘ BROWN (William).— Reports of Cases in the High Court of Chancery, during the Time of Lord Chancellor Thurlow, and of the several Commissioners of the Great Seal, and Lord Chan- cellor Loughborough, from 1778 to 1794, with the Annotations of Mr. Belt and Mr. Eden. Edited by J. C. Perkins. 4 vols. 8vo. BROWNE (Causten).— A Treatise on the Construction of the Statute of Frauds, as in force in England and the United States ; with an Appendix containing the existing English and American Statutes. 8vo. . é s “ ‘ CHITTY (Edward).— Equity Digest: An Index to all the Reported Cases decided in the several Courts of Equity, in Eng- land and Ireland, the Privy Council, and the House of Lords; and to the Statutes on or relating to the Principle, Pleading, and Practice of Equity. and Bankruptcy, from the Earliest Period. na Revised Edition, brought down to the present time. 4 vols. vO, ‘ F ; i Te WM at se ‘ ; CIRCUIT COURT REPORTS. First Circuit. 18 vols. 8vo. . 3 . . . Comprising : — Gallison’s Reports. 2 vols, 8vo. . 7 . Mason’s i 5“ as . . Sumner’s ff 3. : . Story’s = a e : . Woodbury and Minot’s Reports. 3 vols. 8vo. Curtis’s Reports. 2vols. 8vo. . : $5.50 4.50 5.00 5.00 4.00 10.00 11.00 5.50 10.00 5.00 25.00 99.00 11.00 27.50 16.50 16.50 16.50 11.00 3 COLLYER (John). — A Practical Treatise on the Law of Partnership; with an Appendix of Forms. Fourth American, from the second English Edition, with large additions to the Text and Notes, by Hon. J. C. Perkins. 8vo. 2. . s CRANCH (William).— Reports of Cases in the United States Circuit Court of the District of Caleinnity ‘from 1801 to 1841. 6 vols. 8vo. . , : : CRUISE (William).— A Piped « of the Law of Real Ship: ‘ erty. Second American, from the fourth London Edition, re- vised and enlarged, with Notes and Illustrations from the Roman, Civil, and Foreign Law, and specially adapted to the American Practice, by Simon Greenleaf, LL.D. 3 vols. 8vo. CURTIS (George T.).—Precedents in Equity. Supplementary to Story’s Equity Pleading. Third edition. 8vo. : (Judge B. R.).— United States Circuit Court bak ports. First Circuit, 1851-1856. 2 vols. 8vo. . 5 ‘ United States Supreme Court De- cisions, comprising the 58 volumes of cases reported by Dallas, Cranch, Wheaton, Peters, and Howard. With Notes and a Digest. 22 vols. 8vo. . . . . . . . Digest of the Decisions of the Supreme Court of the United States from the Origin of the Court to the close of the December term, 1854. 8vo. . is « 5 CUSHING (Luther S.).— Reports of Cases Argued and Determined in the Supreme Judicial Court of Massachusetts. 12 vols. 8vo. Per vol. iy Bah! A cay) PHP xe An Introduction to the prady of the Roman Law. 12mo. Cloth . . . . . Law and Practice of Legislative As- semblies in the United States of America. Second edition. 8vo. DANIELL (Edmund R.).— Pleading and Practice of the High Court of Chancery. Second English Edition. With con- ‘siderable Alterations and Additions, adapting-the Text to the last General Orders, and the most recent Decisions of the Court. By Thomas Emerson Headlam, M. A., Barrister at Law. Second nariean Edition. To which are added several entirely New Chapters, and Copious Notes, adapting the work to American Practice in Chancery ee) Hon. a C. Perkins. Second edition. 3 vols. 8vo. 3 . ‘ ‘ : DAVIS (Daniel).— A Practical Treatise upon the Author- ity and Duty of Justices of the Peace in Criminal Prosecutions. Third edition, revised and Bealy ee Edited a F. F. Heard. 8vo. . . DOMAT (Jean).—The Civil Law in its Natural Gea: together with the Public Law. Translated into English, by Wil- liam Strahan; with Remarks on some Differences between the Civil Law and the Law of England; printed entire from the last London Edition. Edited by the Hon. “Luther S. cone pepe edition. 2 vols. 8vo. oo ‘ ‘ $5.50 33.00 11.00 66.00 12.00 4.00 11.00 4 DRAKE (Charles D.).— Treatise on the Law of Suits by Attachment in the United States. Second edition, enlarged. 8vo. DUER (W. A.).— Course of Lectures on the Constitutional Gane of the United States. Second edition. 12mo. ‘loth 2 5 . . DUNLAP (Andrew). = Treaties on the Titi of Coirte of Admiralty in Civil Causes of Maritime Jurisdiction; with an Appendix containing Rules in the Admiralty Courts of the States, and a full collection of Practical Forms. Second edi- tion, with Notes and Additions, by Samuel Fales Dunlap. 8vo. EMERIGON (B. M.).— A Treatise on Insurances. Trans- lated from the French, with an Introduction and se Oy: Sam- uel Meredith, Esq. 8vo. ENGLISH REPORTS DIGEST. A Ding of the De- cisions of the Courts of England, contained in the English Law and Equity Reports, from the first volume to the thirty-first inclu- sive. By Chauncey Smith, Esq. 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Sheep A Treatise on Maritime Law, in- cluding therein the Law of Shipping, the Law of Insurance, and the Law and Practice of Admiralty. 2 vols. vo. Z PHILLIPS (Willard).— A Treatise on the ier of es ance. Fourth edition. 2 vols. 8vo. . : 3 PICKERING (Octavius).— Reports of Cases in the Supreme Judicial Court of eee noe 1822 to 1840. 24 vols. 8vo. Pervol. . ‘ : RAWLE (William Henry).— A Practical Treatise on the Law of Covenants for Title. Third edition. 8vo. . i ke RAY (Isaac). — The Medical a BeTRRS: of agra Fourth edition, much enlarged. 8vo. . REDFIELD (Isaac F.).— A Practical Treatise on the Law of Railways. Second edition, enlarged. 8vo. . 3 : RHODE ISLAND REPORTS. — Reports of Cases Argued and Determined in the Supreme Court of Rhode Island. By ae Samuel Ames, Chief Justice and Reporter. Vols. I. and al a Being Vols. IV. and V. of Rhode Island SRepOresy 8vo. ervol. : . 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Fifth sant revised, corrected, and greatly enlarged. 8vo. . : , 3 ‘ Commentaries on the eondbien of the United States; with a Preliminary Review of the Constitutional History of the Colonies and States, before the Adoption of us Constitution. Third edition, revised. 2 vols. 8yo. . ‘ $5.50 3.00 11.00 10.00 5.00 3.00 5.50 5.00 10.00 5.00 5.00 5.50 6.50 7.50 7 STORY (Joseph).— Commentaries on Equity Jurisprudence, as administered in sae and America. Seventh edition. 2 vols. 8vo. . i s F 7 7 7 . E ‘ Commentaries on Equity Pleadings and the Incidents thereto, according to the Practice of the Courts of Equity of England and America. Sixth edition. 8vo. . Commentaries on the Law of Partner- ship as a Branch of Commercial and Maritime Jurisprudence, oritt Occasional Illustrations from the Civil and Foreign Law. Fifth edition, revised and enlarged, by E. H. Bennett, Esq, 8vo. Commentaries on the Law of Promis- sory Notes, and Guaranties of Notes and Checks on Banks and Bankers, with Occasional Illustrations from the Commercial Law of the Nations of Continental Europe. Fifth ea revised and enlarged, by E. H. Bennett, Esq. 8vo. STORY (William W.).— A Treatise on the Law of Contracts. Fourth edition, revised and enlarged. 2 vols. 8vo. : 3 A Treatise on the Law of Bales of Personal Property. Third edition. 8vo.. . .~ —__________ Reports of Cases Argued and De- termined in the Circuit Court of the nee i for the First Circuit. 3 vols. 8vo. ¢ # SUMNER (Charles). — Reports of Cases Argued and Deter- mined in the Circuit Court of the United States for the First Circuit. Second edition. 3 vols. 8vo. § > TAYLOR (John N.).— A Treatise on the American Law of Landlord and Tenant, embracing the Statutory Provisions and Judicial Decisions of the several United States in reference there- to, with a selection of Precedents. Third edition, revised and enlarged. 8vo. : : . j : THORNTON (John N.).— Digest of the Conveyancing, Testamentary, and Registry Laws of all the States of the Union. Second edition, revised and enlarged. 8vo. c 4 ° TRAIN (Charles R.) and HEARD (F. F.).— Precedents of Indictments, Special Pleas, etc., with Nome coene the Law of Criminal Pleading. 8vo. 7 , . UNITED STATES DIGEST TO 1859.— Digest of the Decisions of the Courts of Common Law and puaca wa os in the United States. 19 vols. Royal 8vo. : Comprising the following : — Vol. I. By Theron Metcalf and J. C. Perkins . . . ‘i «IL By George T. Curtis . . es F “ TII. By George T. Curtis. o iY Supplement to do. Vol. I. By John Phelps Putnam | “ IJ. By John Phelps Putnam “ VI. Table of Cases to the above. By G. P. Sanger é “ VII. to XIX. Annual Digest for 1847-1859. 13 vols. By J.P. Putnam and G. S. Hale . $11.00 6.00 5.50 11.00 4.50 16.50 16.50 5.00 4.50 4.00 108.00 7.50 7.50 7.50 7.50 7.50 5.50 65.00 8 UNITED STATES EQUITY DIGEST, by J. P. Putnam (completing the above). 2 vols. Royal 8vo. . . $12.00 UNITED STATES STATUTES AT LARGE.— Laws of the United States of America, from the Organization of the Government in 1789 to the present time. Edited by Richard Peters, George Minot, and George P. Sanger. Published by direction and under the patronage of Congress. Complete to 1859, including Synoptical Index. 12 vols. Royal 8vo. . - 48.00 First Ses- sion of Thirty-sixth Gene, Deere 1859, to Tan 1860. Stitched... . 1.00 (A Com- plete Synoptical Index to me) sea those of the 31st oe gress. Royal 8vo. . . 4.00 WALKER iaiies ae — The hom af eommnen pants 8vo. . 1.25 WALKER (Timothy).— Introduction to American Law; de- _ signed as a First Book for Students. Fourth edition, enlarged and revised. By Edward L. Pierce, Esq. 8vo. ; 5.50 WARE (Ashur).— Reports of Cases in the U. S. District Court of Maine. 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We have also on hand, and for distribution, a Catalogue of our Miscellaneous Stock, including many important works, some of them rare and of great value, selected from the principal European markets. The above Catalogues sent by mail on receipt of postage. Boston, March 1, 1861. veer ess de UNITED Vad ee UNITED TUT ee 203-375-5801 UNITED COMMENTARIES ON THE LAW OF MARRIAGE AND DIVORCE, AND EVIDENCE IN MATRIMONIAL SUITS. BY JOEL PRENTISS BJSHOP, oo AUTHOR OF “COMMENTARIES ON THE CRIMINAL LAW.” THIRD EDITION, OA REVISED aND ENLARGED. oa, €i #_, BOSTON: LITTLE, BROWN AND COMPANY. 1859. LhiypsK Entered according to ‘Act of Congress, in the year 1859, by JOEL PRENTISS BISHOP, In the Clerk’s Office of the District Court of the District of Massachusetts. CAMBRIDGE: ALLEN AND FARNHAM, PRINTERS. TO THE HONORABLE RICHARD FLETCHER, LL. D., ONE OF THE JUSTICES OF THE SUPREME JUDICIAL COURT OF MASSACHUSETTS, ie Sr, Wits pleasure I dedicate this work to you; since your benevolence will prompt you to scan lightly its imperfections, while your judgment will point out to you its merits. But if no such motive influenced me, I should still not omit this opportunity to manifest my admiration for the lucid, pro- found, and careful method in which always, both while you were at the bar and since you adorn the bench, you have explored the hidden labyrinths of legal questions; and the untiring industry of your pursuit of the science of the law. Above all, I desire to express how much IJ respect the Chris- tian life, which has been yours in the midst of the life of the law; and whose light has shone ever beauteous, as blended with the light of our jurisprudence. Happy are they, who, while following in the path of legal fame you have trodden, pursue also the same honorable path of private virtue and Christian charity. Iam, dear Sir, Your obedient Servant, JOEL PRENTISS BISHOP. Boston, Nov. 1, 1852. PREFACE TO THE THIRD EDITION. Six years ago appeared the first edition of the pres- ent work. In it, I came before the public for. the first time as an author. Nearly four years of hard brain labor had I expended upon it. Every volume of the reports I had taken into my hands, had examined its contents to see whether I could find in it matter per- taining to my subject; the digests I had consulted like- wise ; all the books of every other sort, available to me, and containing what I thought to be useful for my purpose, I had read. The cases I had not merely ex- amined cursorily ; I had read every word of every case, however long, including the statement of the case, and the arguments of counsel, when given ; I had pondered over every case, not merely while the book was before me, but while I was passing to and fro between my office and my house, while I was reclined upon my bed at night, while also most other persons would have been engaged in recreation or pleasure. I had considered for myself, not only every argument which I had seen in any book, but every one which imagination could bring to me. I found the law to be a jumble of the light and the dark in jurisprudence ; I found the judges A® vi PREFACE of our own country not to have examined this subject as they had done other subjects; I found chaos and confusion, where, if I would succeed in my undertaking, order must arise from beneath my hand. With a trembling and a diffidence known only to an author who comes before the public with his first book, I committed mine to the press and to the public eye. It was almost all the world to me; yet, the morning after it was issued, the sun rose in the east as usual, and the same busy tide of man poured itself through the avenues of active life as usual. Few persons knew then, few know now, that more than six hundred pages, dripping in brain sweat, were added to the literature of this department of our law. A few notices of the book appeared in the journals of the day; kindly no- tices they were, even some of them departed from the established canon of modern criticism to give alternate puffs of hot air and of cold upon every thing before it, and gave me hot air alone. The courts, in one or two instances, complimented me by using my arguments as their own, without so much as referring to the book whence they extracted them; but only this came from the courts at first. By and by, the judges ventured to suggest in their opinions, that the cases were collected in my book. At length, the book began to receive more honorable notice at their hands; and, in prepar- ing the matter for this new edition, grateful have I been to see, that seldom an important question is set- tled by the tribunals of our country, within the range of matters discussed in this volume, without reference made to the volume in the opinion of the judge; nota mere reference to it as a depository of the cases, but a reference also to its arguments and its views. And TO THE THIRD EDITION. vil while the judges have sometimes modified their former opinions in consequence of mine, no case has yet come to my notice of any express dissent from my views. At the same time, the reports of decisions in matri- monial causes show still a want of familiarity with this subject in our tribunals, not to be accounted for except on the hypothesis of an impression existing in the minds of the profession, that the subject itself is less important than in fact it is, or that it is not one of gen- eral jurisprudence, or that it is not encumbered with difficulties as it is, or that books do not exist giving light upon it. Undoubtedly each of these several enu- merated things has somewhat to do with the matter. The matrimonial law of our country has sprung from an origin distinct from the main body of our common law ; also in its intrinsic nature it is peculiar; and no lawyer can understand it, however well read in the other departments of his profession, unless he gives a special reading to this. With most other of the appa- rently independent branches of the law, the case is different. For through the common law run arteries of doctrine from its living centre; and he who once finds an artery in one part of the system, will usually recognize its place in another part. But there are arteries, main arteries, which flow only into the matyri- monial law. The volume here presented does not contain the whole of what belongs properly to the subject of Mar- riage and Divorce. The question of the proof of mar- riage in issues other than matrimonial; questions of the interpretation of various divorce and marriage statutes, where the interpretation has not yet been made matter of express adjudication; questions of vili PREFACE pleading and of practice in divorce suits, of separation under articles without divorce, — these and some oth- ers I had intended to include in the volume here pre- sented ; but want of room compelled me to omit them. And in truth, I willingly omitted some of them from the conviction, that already, in what was published, I had intruded my own views upon the profession, accus- tomed to receive every thing from authority, to as great an extent as the profession would bear at first. The time may come, in the development of intellectual wisdom on the earth, when words will be taken for their intrinsic worth or lack of worth, without inquiry whether they bear the name of one whose previous deeds of solid wisdom or of intrigue had placed him in a position of power among men, but that time is not yet. At present in our profession, the rank from which legal utterances flow attests their market value, if nothing more. And he who spurns rank, and looks only after light and truth, learns, if he learns any thing of truth, learns, as the first lesson of truth, that, what- ever of wisdom he may draw within the circle of his understanding, he cannot send it forth to others with effect, until he has baptized it with a name. But how- ever insufficient my name may be to recommend any thing to which it is attached, I intend, nevertheless, to attach it to a further volume, finishing this subject of Marriage and Divorce, whenever other labors press less heavily, and 80 permit me to prepare the volume. In preparing the present edition of this volume, I revised thoroughly the whole matter of the volume, with the unimportant exceptions of the thirty-first and thirty-third chapters, rewrote much of it, changed the form of expression of most of what was not rewrit- TO THE THIRD EDITION. ix ten, retrenched the matter in some places, expanded it in others, introduced new discussions of points, modified the statements of some other points,— in short, gave to the work those finishing strokes of the pen, from which, I hope, if the image of completeness and per- fectness does not spring up, the more earthly and less radiant image of utility may appear. The cases are cited, as far as published, down to the present time. This work, even the present revision, does not at- tempt to give all the views ever suggested by man, on all the subjects discussed, much less does it propose new views merely to show their fallacy. My object has been simply to state what is sound in argument, what is correct also in law, upon the several points. Since my work was originally published, I have met with some views, which, while it was in preparation, I had considered and rejected as unsound. Many more will undoubtedly arise hereafter of this class, of the other class many more which space did not permit me to state, of both classes many more not suggested to my mind. This work, such as it is, with its merits and its defects, I again commit to the keeping of that profession from whose indulgence I have received so much hitherto. Should another edition be called for, I shall render it as complete as I can; but I do not anticipate for it any extensive improvements, such as have entered into the present edition. J. P. B. Boston, Jan. 1, 1859. PREFACE TO THE FIRST EDITION. \ Tue professional reader will demand no apology for being presented with an elementary work on the sub- ject to which this is devoted, whatever he may for the manner in which this has been executed. Marriage is the most important institution of human society; it involves the most valued interests of every class; it awakens the thoughts, engages the care, of nearly every individual; and how it may be entered into, how dis- solved, what is the collateral effect of a dissolution, is matter of almost constant legal inquiry. , Yet gentlemen at the bar and on the bench, embar- rassed with doubts concerning this subject, seek in vain for any elementary book from which any considerable assistance may be derived; and, when they resort to the reports, they find there the light so scattered, so buried beneath forms of practice unknown to them, gathered at so much labor, as often to render the search in this direction scarcely compensatory. Still there are two English books, and, while this has been in preparation, an American one has appeared, re- quiring notice here. The first, is a pleasant, readable, somewhat useful, essay, by Thomas Poynter, a proctor xil PREFACE in Doctors’ Commons, the second and last edition of which was published in 1824. The date of this edition is too remote to render it very serviceable as a manual of even the elementary learning of England on the subject, if it claimed to be, what it does not, a thorough treatise ; while necessarily it makes no mention of the seneriban law. The second, is a work of greater mag- nitude, by Leonard Shelford, a barrister, and author of several other law compilations; it was published in 1841, and afterward reprinted in this country. It has a pretty full collection of English authorities ; and it may be deemed a good digest of points decided, in- terspersed with which are many observations of the judges ; the latter being in a less valuable form, because of the general omission of marks of quotation, or other sign, to distinguish them from the words of the com- piler. The American book is entitled, “A View of the Law relating to the Subject of Divorce, in Ohio, Indi- ana, and Michigan, by Henry Folsom Page;” it was published at Columbus, O., in 1850. It combines a por- tion of Shelford with considerable American law, ex- tracted from the reports in a way similar, though some- what more original. Now the practice of the law requires, besides the reports and statutes, the use of two other kinds of auxiliary books, — first, digests, or indexes to the reports ; secondly, elementary treatises, or commen- taries. In the former class are many books called by the latter name. There is, properly, on this subject of Marriage and Divorce, no elementary treatise, English or American; though there are digests, and an essay ; and this sant the following pages aim to supply. What is the appropriate sphere of a treatise, or com- TO THE FIRST EDITION. xiii mentary, upon the law, I cannot better express than in the words of Lord Stowell, who, while furnishing me thus a guide for my way, stands also as my apologist and defender against any who may deem the way pre- sumptuous. “With regard to decided cases,” he said, in delivering one of his most admired judgments, “I must observe, generally, that very few are to be found in any administration of law in any country, upon acknowledged and settled rules. Such rules are not controverted by litigation, they are therefore hot evi- denced by direct decisions; they are found in the maxims and rules of books of teat law. It would be difficult, for instance, to find an English case, in which it was di- rectly decided, that the heir takes. the real, and the executor the personal, estate; yet, though nothing can be more certain, it is only incidentally, and od:er, that such a matter can force itself upon any recorded obser- vation of a court; equally difficult would it, be to find a litigated case in the canon law establishing the doc- trine, that a contract per verba de presenti is a present marriage, though none is more deeply radicated in that law.”* What success has attended my effort to draw from the decided cases the rules to be followed in future cases I cannot assure the reader; but herein, be the success greater or less, lies a chief part of whatever merit is claimed for the following pages. If bare state- ments of points decided could make up an elementary treatise of the law, little need would there have been for any thing more than a digest of the American decisions, to be used in connection with Mr. Shelford’s, 1 Dalrymple v. Dalrymple, 2 Hag. Con. 4, 93, 4 Eng. Ec. 485, 502. B t xiv PREFACE of the English. And if treatises of the law were only digests, few treatises of the olden time could have come down to us; for the old would be superseded by the new. And though my work may fail to be regarded in any other light than as merely a digest, the failure will be owing to no want of effort on my part, it will be a complete failure of what I have undertaken, as complete as if the words themselves were forever blotted from existence. When I entered upon this undertaking, I contem- , plated merely a reprint of one of the English publica- tions, with the American law interwoven, after the manner in which Stephen’s Commentaries have been made from Blackstone’s. But before proceeding far in the collection of the material, I discovered, that those books were utterly unsuited to my purpose; and that a work made in the way proposed would be nei- ther creditable to myself, nor satisfactory to the pro- fession; that I must, in short, either abandon the de- sign, or produce a new work, upon a plan more original than writers of treatises on other legal subjects have usually found it convenient to pursue. The decisions of the courts were conflicting, or apparently so, more than upon almost any other topic; I could have brought them loosely together to float, like drift-wood, upon the stream of our jurisprudence, as my predecessors had done; or else, one by one, and every one, they must be measured and hewn by me, and put into one vessel of parts and proportions as symmetrical as it was in my power to build, with the advantage of scarcely a joint which had been made, or a knee which had been turned, before me. Therefore the only plan open to considera- tion was adopted; and, with whatever skill and ability TO THE FIRST EDITION. xv -I possessed, I have pursued it to the end; taking upon myself a responsibility I sought not, and assuming to judge where I had rather listen to superior wisdom. And now, that, after long solicitude and toil, the more wearisome because I felt the delicacy and difficulty of the task, this keel awaits the waves,—not without emo- tion, in the presence of illustrious master-workmen in the law, I see it launched, inviting the trial of stormy conflicts to come, as the test of its strength, durability, and usefulness. My intention. was at first, that these pages should not embrace the conflict of laws relating either to mar- riage or divorce; because this field has been cultivated by the very fruitful labors of Judge Story. But an examination of his chapters made it apparent, that, learned and useftil as they are, and adapted to answer the purpose for which they were written, as unfolding many general principles; they do not embrace a refer- ence to all the cases which had been decided down to the time he wrote; and the one concerning divorce does not discuss any considerable proportion, in num- ber, of the practical and important questions with which the American lawyer has to deal. My own chapter on the conflict in respect to marriage was a necessary forerunner to the one concerning divorce, and a needful complement to preserve the symmetry and unity of the entire work; while mine on the con- flict relating to divorce travels over but little of the same ground trodden by my illustrious predecessor, in his, on the same subject,—to which I trust it may be found not an altogether unprofitable supple- ment. I am not insensible, that this work will be regarded, xvi PREFACE by some, as deficient in illustrations from foreign laws ; such illustrations having become much in fashion of late. I have occasionally referred to the Scotch law; because its common origin and substantial ancient identity with ours, in the particular department which concerns the subject of this volume, and its growth in a Protestant country, under like influences, seemed to render such reference peculiarly appropriate. Indeed the illustrations from Scotch law would have been more numerous, if I had possessed an entirely full collection of Scotch books. But from the foun- tains of the canon and civil laws, as respects the same subject, the judges of the ecclesiastical tribu- nals, who are civilians, and the English canonists, have drawn, until now those fountains may be deemed to be, for common law purposes, comparatively ex- hdusted. So far, therefore, from there existing, as might be supposed, more occasion for illustrations from these sources in a work on marriage and divorce than on other legal subjects generally, it appears to me there is less; and this view has guided me in the preparation of the following commentaries. It is the aim of the following pages to present the several subjects discussed, in the light of their common law principles. The statutes have been referred to, only when the reference seemed important, as con- tributing to this object. Yet among these common law principles developed, are included those which the * Nore to tax Seconp Eprtion. Since this work was originally pub- lished, the “ Social Law Library” of Boston has made a large purchase of Scotch books, including all the modern reports; and, by availing myself of them, I have been able to do for this second edition what I desired in the way of Scotch law. TO THE FIRST EDITION. Xvil courts have applied to the construction of the statutes. More of statutory law, woven into the text, or even introduced into the notes, would, it was thought, tend rather to embarrass than profit the inquirer; while it would much increase the size of the volume. The more distinctly, the less obscured by foreign matter, the common law doctrines lie before the reader, the better can he then adapt them to the interpretation of the legislative enactments of his own State. For, as Lord Coke observes: “To know what the common law was before the making of any statute, is the very lock and key to set open the windows of the statute.” * This volume treats only of what are commonly termed the law and the evidence; as distinguished from the law of pleading and practice. Yet matter belonging to the latter departments has been fre- quently introduced, 'to illustrate the matter of former. The work is intended particularly for American use ; yet not more for use in any one State than another ; and it is believed, that our English and even Scotch friends may find here not an altogether valueless re- flection of the light which has shone from them over the waters. In the arrangement of the discussion, perspicuity, convenience of reference, and the avoiding of repeti- tions, have been aimed at, more than precise philo- sophical accuracy ; while the last has not been entirely out of mind. This plan indeed has been followed throughout, down even to the sections and periods; whence the modes of presenting the topics have be- 1 9 Inst. 308. wt XVili PREFACE come almost as various as the topics themselves. Greater uniformity would have suited better the pure philosopher ; but what has been done will be more useful. to the practitioner, and conduct the general reader over a more diversified and inviting field. The many conflicts and judicial doubts to be encoun- tered have necessarily increased the size of the volume beyond what would otherwise have been required. In dealing with these questions, I have not always followed the path of argument pursued heretofore by either side to the controversy; indeed it has happened, that, in most of these cases, the truth has seemed to me to lie in a somewhat untrodden way. I hope this will not be regarded as impairing the usefulness of the work; it could not have been avoided consistently with the gen- eral plan; and, if I have succeeded in shedding light ‘through questions of difficulty, it has been in conse- quence of this method. Truth, distinctly seen, with no shadow of contiguous error upon it, is usually recog- nized alike by all men; and the principal reason why differences arise, is because the right view, in the right aspect, with the right surroundings, illumed by the appropriate rays of wisdom, has not been given tothe understandings of men. I have had frequent occasion to dissent, in opinion, from learned judges, some of whom are living, others are departed. The dead, if they read human books, we trust are too wise now to be sensitive respecting such things. To the living I desire to say, here for all, that, while I have not in every instance used the necessary circumlocution to express the idea, I have always felt deeply the delicacy of this part of my task; and have exercised the right of criticism, not from a conviction TO THE FIRST EDITION. xix of possessing superior abilities, not from a confidence of having invariably arrived at just conclusions; but because such a course was a necessary part of the only useful plan I could adopt; and because, having read and reflected upon all the reported cases which consid- erable diligence in searching has brought to my knowl- edge, I have stood in a position of peculiar advantage for judging, over one who has seen only a part of them. And I have endeavored, whenever consistent with the proper limits of the discussion, to present the opposite view to my own; and especially I have cited, in every instance, the opposing authorities. Indeed to refer to all the cases, rather than a selection of them, has been the method throughout; yet subject to obvious and necessary exceptions ; as where the point under discus- sion was only incidental, and not disputed. Still I have not unfrequently been obliged to draw from the gen- eral result of my reading; and doubtless, in some in- stances, have stated conclusions which would not have been arrived at, on a perusal of only the authorities cited in the notes. In like manner, since the several parts of a subject derive light from the combined whole, those who consult these pages for specific points will sometimes withhold their assent from propositions to which they would yield on an examination of the en- tire volume. It is needless to apprise the reader, that errors and omissions will undoubtedly be discovered in this work ; though I have spared no ordinary pains to render them as few as possible. My belief is, that they are not so numerous as materially to impair its usefulness. If in this I am mistaken; or if the undertaking fails to re- ceive the favor sought for it; still there remains for me xX PREFACE TO THE FIRST EDITION. the pleasing reflection, that I have done what I could to serve an enlightened, and consequently an indulgent and liberal, profession, to whose candor the result of these labors is respectfully committed. Finally, I would express my acknowledgments to va- rious gentlemen for important suggestions; particularly to my friend the Hon. Samurt E. Srwarz, to whose ac- complished legal attainments, and ripe scholarship, these pages are likewise indebted for some specific emenda- tions, proposed while the sheets were passing through the press. Boston, Nov. 1, 1852. CONTENTS. BOOK I. THE FOUNTAINS OF OUR MATRIMONIAL LAW. CHAPTER I. THE ENGLISH ECCLESIASTICAL LAW. Sect. 1-15 a. Sect. 1. Introductory View. 2-8. History, Sources, and Nature of the Ecclesiastical Law. 9. Ecclesiastical Law as part of the Common Law. 10-14. Books of the Ecclesiastical Law. 15,15a. The Ecclesiastical Judges, their Decisions, and the new Court. CHAPTER IL. THE MATRIMONIAL LAW OF THE UNITED STATES. SEcT. 16-28. Sect. 16-18. The Common Law of this Country viewed separately from ‘ the Courts. 19, 20. The Doctrine that Courts are established by Legislation. 21-27. These Principles how applied to the Matrimonial Law. 28. Distinction in this Respect between Law and Practice. xxil CONTENTS. BOOK IL. MARRIAGE. CHAPTER III. NATURE OF THE LEGAL STATUS OF MARRIAGE. SeEcT. 29-45. Sect. 29. How Marriage Defined. 80-41. Considerations relating to the Definition and Nature of Marriage. 42-45. Division of the Subject of Nullities of Marriage. CHAPTER IV. DISTINCTION OF VOID AND VOIDABLE IN MARRIAGE. SECT. 46-62. Sect. 46. Definitions. 47-52. History and Nature of the Distinction. 53-56. What Marriages are Voidable, what Void. 57-59. Effect of a voidable Marriage, and of its Dissolution. 60-62. English and American Statutes. BOOK JIL. NULLITIES OF MARRIAGE. CHAPTER V. IMPERFECT CONSENT. SECT. 62a-98. Sxct. 62 a,626. Introduction. 63-68. The General Doctrine of Consent as Essential to Mar- riage. CONTENTS. Xxili 69-71 a. Forms of Consent in Absence of Statutory and like Di- rection. 72-83. Concerning Forms of Consent where Consent Wanting. 83 a-89. Further Views of Consent per Verba de Presenti. 90-91 a. Consent per Verba de Futuro cum Copula. 92. Consent by Habit and Repute. 93-97a. Principles governing the Consent per Verba de Futuro cum Copula. 98. Effect of this Impediment of Imperfect Consent. CHAPTER VI. FRAUD, ERROR, DURESS. SEcT. 98 a-123. Sect. 98a, 99. Introduction. 100-116. Fraud. 116 a-118. Error. 119-121. Duress. 122, 128. Some Principles Common to the three Impediments. CHAPTER VII. MARRIAGE CELEBRATED UNDER CONFLICTING LAWS. SECT. 124-151. Sect. 124, 1244. Introduction. 125-131a. Doctrine of Marriage good where Celebrated every- where so. 132-141. Doctrine of Marriage invalid where Celebrated every- where so. 142-151. General Views and further Unfoldings of these Doc- trines. CHAPTER VIII. THE COMMON LAW AND STATUTORY FORMS OF CONSENT. ° Sect. 152-175. Sect. 152. Introduction. 153-166. Whether any and what Forms are required by the Common Law. 167-173. How Statutes concerning the Forms are to be Inter- preted. 174,175. Concerning the Consent of Parents. Xxiv CONTENTS. CHAPTER IX. WANT OF MENTAL capacity. Sxcr. 176-190. Sect. 176-179. A general Survey of the Subject. ! 180-183. Particular Applications of the Law. 184~186. Evidence and Procedure. 187-190. How voidable, and whether confirmed by Cohabitation. CHAPTER X. WANT OF AGE. SEcT. 191-199. CHAPTER XI. INCAPACITY FROM SOCIAL CAUSES. SEcT. 200-212. Srcr. 200. Introduction. 201-209. A Prior Marriage undissolved. 210-212. Impediments following Divorce. CHAPTER XII. AFFINITY AND CONSANGUINITY. SEcT. 213-221. CHAPTER XIII. FURTHER IMPEDIMENTS TO PARTICULAR INTERMARRIAGES. SEcT. 222-224, CHAPTER XIV. PHYSICAL IMPOTENCE. SECT. 225-261. Sror. 225. Introduction. 226-228. A General View of the Doctrine. ‘229-232 a. Impotence of Procreation but not of Copula. 233. Impotence of Copula but not of Procreation. 234-240. The several other Forms and Doctrines of Impotence. 241-260. Principles governing the Divorce Suit for Impotence. 261. Concluding Views. CONTENTS. XXV CHAPTER XV. THE SUIT FOR NULLITY. SECT. 262-267. BOOK IV. GENERAL VIEW OF DIVORCE. CHAPTER XVI. HISTORY AND POLICY OF DIVORCE LAWS. Sect. 268-290. Sect. 268. Introduction. 269-279. Historical. 280-290. Theoretical and Practical. CHAPTER XVI. LEADING DOCTRINES CONCERNING DIVORCE. SEcT. 291-330. Sect. 291. Introduction. 292-296. The different Kinds of Divorce explained. 297-313. The Rule of consulting the Public Interest. 314. The Issues in the Divorce Suit. 315-326. ‘The Evidence of Marriage in this Suit. 327-330. Concerning the Proofs and Witnesses generaily. CHAPTER XVIUI. CONNIVANCE AND COLLUSION. Sect. 331-353. Sect. 331. Introduction. 332-338 a. The Doctrine of Connivance. 339-349. Proofs and Practice. 350-353. Collusion. c xxvi CONTENTS. CHAPTER XIX. CONDONATION. Sect. 354-387, Sect. 354, 354a. Introduction. 355-364. ‘The General Doctrine of Condonation. 365-371. Further and attendant Views. 371 a-380a. Conditional Quality of Condonation. 381-387. The Evidence and Practice of the Courts. CHAPTER XX. RECRIMINATION. SECT. 387 a-409. Srct. 387 a-389 a. Introduction. 3896-391. A General View of the Doctrine. 392-404. Particular Propositions discussed. 405-4074. Concerning the Recriminatory Fact condoned. 408, 409. The Practice of the Courts and Evidence. CHAPTER XXI. LAPSE OF TIME AND INSINCERITY. Sucr. 410-414a. BOOK V. rs SPECIFIC GROUNDS OF DIVORCE. CHAPTER XXII. ADULTERY. Srct. 4140-453. Sect. 414}. Introduction. 415-420. The Law concerning Adultery. 421-453. The Evidence and Procedure. Sect. 454, 454 a. 455-458. 459-484 a. 485-489. 490, 4904. 491-496. 496 a-501. Sect. 502-505 a. 506-510 a. 511-517. 517 a-523. 524-529 a. 530, 531. OTHER Sect. 532. 533, 534, 535. 536-537 b. 538. 539. 540. 541. 541 a. CONTENTS. Xxvii CHAPTER XXIII. CRUELTY. Sxct. 454-501. Introduction. The General Doctrine. Some Particular attendant Propositions. The Relative Rights and Duties of Husband and Wife. Cruelty by the Wife to the Husband. The Defences, The Evidence. CHAPTER XXIV. DESERTION. Sect. 502-531. Introduction. The Ceasing to Cohabit. The Intent to Desert. The Evidence. The Justification. The Time and Place. CHAPTER XXYV. CAUSES OF DIVORCE. Sect. 532-541 a. Introduction. Drunkenness. ” Gross Neglect of Duty. Refusing to maintain, being of Ability. Uniting with the Shakers. Criminal Conviction., Absent and not Heard of. Deserting and Living in Adultery. Offering Indignities. CHAPTER XXVI. DIVORCE IN THE JUDGE’S DISCRETION. Sct. 542-547. XXVili CONTENTS. BOOK VI. ma THE CONSEQUENCES OF DIVORCE. CHAPTER XXVII. ALIMONY. Sect. 548-623 6. Secr. 548, 548a. Introduction. 549-559. Alimony without Divorce. 560-560c. The General Doctrine of Alimony. 561-568. Permanent Alimony. 569-590. Temporary Alimony pending the Suit. 591-602a. General Expositions concerning the two kinds of Ali- i. ues asmony- eat GORY 6 8 sane, 8 BES 603-610. The Husband’s Ability whence the Alimony proceeds. 611-619¢c. The Amount to be fixed for Alimony ; namely — 611-6126. General Views. 613-615. Temporary Alimony. 616-619. Permanent Alimony. 619a-619¢. Considerations relating to both kinds of Alimony. 619 d-623 b. Statutory Alimony on Dissolutions of Marriage. CHAPTER XXVIII RESTORATION OF PROPERTY TO THE WIFE AND DIVISION OF PROPERTY. SecrT. 623 c-631.. Sect. 623 ¢. Introduction. 624-629. The Division of the Property. 630,631. The Restoration to the Wife of her Property. CHAPTER XXIX. CUSTODY OF CHILDREN.’ Sect. 631 a-645. Stor. 6314-640. The Doctrine on Authority. 641-643 a. Views of the Doctrine as Resting in Reason. 644. The Provision for the Support of the Children. 645. Other Orders in the Divorce Suit.. CONTENTS. xxix CHAPTER XXX. RESULTS FLOWING BY LAW FROM THE VALID DIVORCE SENTENCE. Srct. 646-691. Sect. 646. Introduction. 647-653. The Sentence of Nullity. 654-675. The Divorce from the Bond of Matrimony ; as to— 654. Introduction. 655-659. The Status of the Parties. 660-675. Property Rights of the Parties and oe Persons. ga 676-691. The Divorce from Bed and Board. CHAPTER XXXI. THE STABILITY AND EFFECT OF THE SENTENCE. Sect. 692-711. Sect. 692, 693. Introduction. 694-699. As between the Parties. 700-711. Collateral Effect. BOOK VII. THE AUTHORITY OVER DIVORCE. CHAPTER XXXII, AUTHORITY AS EXERCISED BY THE COURTS. SEcT. 712-766 a. _ Sect. 712-713 a. Introduction. 714-720. The General Doctrine. ‘sha 720 a—761. Specific Propositions. 761 a-763. Divorces from Bed and Board and Alimony. 764-766 a. Jurisdiction under particular Statutes. XXX CONTENTS. CHAPTER XXXIII. LEGISLATIVE DIVORCES. SECT. 767-807. Sect. 767-770. 771-775. 776-785. 786-792. 793-800. 801-807. General View of the Subject. Whether Legislative Divorces impair the obligation of Contracts. Whether they are Retrospective Laws. Whether they are an Exercise of the Judicial Power. Limitations and Exceptions to Power of Legislative Divorce. Statutes authorizing Divorces for Causes already ac- crued. THE LAW OF MARRIAGE AND DIVORCE. BOOK I. i THE FOUNTAINS OF OUR MATRIMONIAL LAW. CHAPTER I, THE ENGLISH ECCLESIASTICAL LAW. Secr. 1. Introductory View. 2-8, - History, Sources, and Nature of the Ecclesiastical Law. 9. Ecclesiastical Law as part of the Common Law. 10-14. Books of the Ecclesiastical Law. 15,15a. The Ecclesiastical Judges, their Decisions, and the new Court. § 1. Tux general doctrine is familiar, that colonists to an uninhabited country convey with them to the country they settle, the system of laws prevailing in the parent land. And it is familiar to the profession in this country, that, under this rule, those who settled these States brought to them the law of England, written and unwritten, and made it common law here! This proposition is subject. to the qualification, that principles of unwritten law and acts of parliament found una- dapted to the new circumstances and slightly altered relations of the colonists were rejected by them, and so failed to become binding here as common law. The system of church polity, established in England as a part of her civil institutions, was never extended as such to the colonies; therefore laws of the 1 1 Bishop Crim. Law, § 7, 7a, 9 et seq.; post, § 9, 17 et seq. 1 [1] § 2 THE FOUNTAINS ‘OF OUR MATRIMONIAL LAW. [BOOK I. church, meant merely to regulate her internal or ecclesias- tical affairs, never were in force with us; while the laws relating to the civil affairs of men, and adapted to our situation, were in force equally whether in England they were admin- istered in the ecclesiastical tribunals, or in any other. These points will be more particularly considered further on. Mat- rimonial causes belonged to the ecclesiastical courts. These were regular courts of the country, as much as any other; for, though their judges derived their commissions directly from the functionaries of the church, yet indirectly and really they had them from the crown, because the sovereign of England is the head of the English church.2, How the church, first on the continent, afterward in England, Scotland, and other di- visions of the British islands, obtained, in the gradual and sure advance of her power, jurisdiction over various things relating to the civil rights and interests of men and the welfare of the state, is matter of history not belonging particularly to these pages. Matrimonial causes fell naturally within the circle of her enchantment, because marriage was one of her.sacraments ;8 and so less question was always made of the rightfulness of her authority over them than over many others. Consequently the first inquiry which presents itself in this volume is the one indicated by the title of this chapter; namely, what are the sources, the history, the nature, of the English ecclesiastical ‘law? § 2. “The Anglo-Saxon common law never recognized the principle of a separate civil or criminal jurisdiction as exer- cised by the church, though, either out of respect for the sacred character of its members, or from a sense of their superior learning and intelligence, it had certainly admitted the Epis- copal order to a participation in the municipal judicature of the country. For, ever since the introduction of Christianity into England, the bishops had sat to hear causes in the county 1 Post, c. 2. * 1 Bl. Com. 278. See also post, § 9. 5 Coote Ec. Pract. 3; 3 Bl. Com. 92. [2] + CHAP. I.] THE ENGLISH ECCLESIASTICAL LAW. §3 court, in conjunction with the ealderman or his sheriff”?! And the only difference between the functions of the bishop and the temporal judge appears to have been, that a “ superior deference,” in the language of Blackstone, “was paid to the bishop’s opinion in spiritual’ matters, and to that of the lay judges in temporal. This union of power,” continues the same author, “was very’ advantageous to them both; the presence of the bishop added weight and reverence to the sheriff’s proceedings; and the authority of the sheriff was equally useful to the bishop, by enforcing obedience to his decrees in such refractory offenders as would otherwise have despised the thunder of mere ecclesiastical censure.” ? § 3. After the Norman conquest had brought into the coun- try large numbers of learned foreign ecclesiastics, who succeed- ed to the episcopal sees of England on the expulsion of the native prelates, the lay and ecclesiastical judicatories were sep- arated. The separation was accomplished by a statute of the Norman parliament, in the reign and through the influence of William J. It recites, that, previous to William’s time, the episcopal laws were not administered well, or according. to the precepts of the holy canons; and orders, by the advice of the common council, and council of the archbishops, bishops, and abbots, and all the clergymen of the realm, that the same be amended. It then enacts, among other things, that no bishop or archdeacon hold pleas any more in the hundred, con- cerning the episcopal laws, nor bring to judgment of secular men a cause which appertains to the government of souls; but whosoever shall be impeached according to the episcopal laws, for any cause or fault, shall come to the place which the bishop shall have chosen and named for this purpose, and there answer respecting his cause, and do right to God and his bishop, not according to the hundred, but according to the canons and episcopal laws ; “ sed secundum canones et Episco- pales leges rectum Deo et Episcopo satisfaciat.’ The same 1 Coote Ec. Pract. 4. 2 3 Bl. Com. 61, 62. [3] §4 THE FOUNTAINS OF OUR MATRIMONIAL LAW. [BOOK I. statute established the proceeding of prohibition, ever since in use, whereby the temporal courts restrain the spiritual, when attempting to overstep the lawful boundary of their jurisdic- tion! And though there was a temporary return to the for- mer state of things during the reign of Henry I? yet substan- tially this statute of William I. has ever been the foundation of the system of separate ecclesiastical tribunals. § 4. We have'seen, that this statute of William I. author- ized these newly constituted tribunals to decide all questions within their jurisdiction, according to the canons and episcopal laws? But the word canons, in the statute, does not necessa- rily and exclusively refer to the Roman canons, and the same may be said of the words episcopal laws; but plainly they to- gether mean any and all rules which then governed the Eng- lish church, under the names of canons and of episcopal laws, whether the same were binding elsewhere within the sway of the Rofnan see or not. And it was said by the ecclesiastical ‘commissioners of George IV.: “In England, the authority of the [Roman] canon law was at all times much restricted, be- ing considered in many points repugnant to the law of Eng- land, or incompatible with the jurisdiction of the courts of common law; so much of it as has been received, having-ob- tained by virtual adoption, has been for many centuries accom- modated by our own lawyers to the local habits and customs of the country; and the ecclesiastical laws may now be de- scribed, in the language of our statutes, as ‘laws which the people have taken at their free liberty, by their own consent, to be used among them, and not as laws of any foreign Prince, Potentate, or Prelate’ In addition to these authorities of Soreign origin, must be enumerated also the constitutions passed in this country by the Pope’s legates, Otho and Othobon, and the archbishops and bishops of England, assembled in national councils in 1237 and 1269; and a further body of 1 Coote Ec. Pract. 5-9, 96. 2 3 Bl. Com. 63 ® Ante, § 3. [4] CHAP. I.] THE ENGLISH ECCLESIASTICAL LAW. §5 constitutions framed in provincial synods, under the authority of successive Archbishops of Canterbury, from Stephen Lang- ton, in 1222, to Archbishop Chicheley, in 1414; and adopted also by the province of York, in the reign of Henry VI. These English constitutions, as they may be termed, have been illus- trated by the commentaries of English canonists of distin- guished learning and experience, and principally by Lynd- wood, an eminent canonist and statesman, much employed in the public affairs of the country in the reigns of Henry V. and VI. These commentaries will be found to contain much val- uable information on subjects connected with the history and government of the church. To the foregoing enumeration must be added also the canons of the English protestant church, passed in convocation 1603; and such acts of parlia- ment as make particular subjects matters of ecclesiastical cog- nizance, or regulate the course of proceedings with respect to the same.” + Concerning the canons of 1603, however, it is held, that, not having been ratified by parliament, though they received the royal assent, they do not proprio vigore bind the laity; but they bind the clergy, and the law-officers of the ec- clesiastical courts.” § 5. ‘Still some confusion remains in the books, as to the precise weight which the Roman canon law should have in the English ecclesiastical tribunals. Burn says: “The eccle- siastical law of England is composed of these four main ingredients, — the civil law, the canon law, the common law, and the statute law. . .. When these laws do interfere and cross each other, the order of preference is this: the civil law submitteth to the canon law; both of these to the common law; and all these to the statute law. So that from any one or more of these, without all of them together, or from all of these together without attending to their comparative obliga- 1 Report of Ec. Com. abr. ed. 21, 22. 2 Middleton v. Croft, 2 Stra. 1056, 2 Atk. 650; 1 Burn Ec. Law, Phillim. ed. Pref. 27, 80; Butler v. Gastrill, Gilb. Ch. 156; Dakins v. Seaman, 9 M. & W. 777, 788. 1* [5] §6 THE FOUNTAINS OF OUR MATRIMONIAL LAW. [BOOK I. tion, it is not possible to exhibit any distinct prospect of’ the English ecclesiastical constitution.”! But, however accurate this statement might have been at some distant period in our jurisprudence, it is now correct simply as explaining the his- tory of the ecclesiastical law; as when, in speaking of the English language, we enumerate the former tongues of which it is composed. In this aspect, the canon law may be regarded as the Anglo-Saxon of the ecclesiastical. § 6. Among the judges of the ecclesiastical courts, perhaps Lord Stowell was the most inclined to give weight to the Roman canon law. In one case he observed: “ As to the first point, the binding authority of the canon law in causes matrimonial, depending in these courts, I look without success for any principle on which I can hold, that they can relieve themselves, by any power of their own, from a submission to that authority. The release, if proper, must come from a higher authority than they possess. It is notorious, that this country at the Reformation adopted almost the whole of the law of matrimony,? together with all its doctrines of the indis- solubility of contracts per verba de presenti et per verba de futuro, of separation a mensa et thoro, and many others; the whole of our matrimonial law is, in matter and form, con- structed upon it; some canons of our own may have varied it; and a higher authority, that of the legislature, has swept away some important parts of it. But the doctrine of indis- solubility remains in full force.”* These observations, how- ever, must be considered as referring only to the question in its relation to the particular inquiry then before the court. 11 Burn Ec. Law, Phillim. ed. Pref. 11. * Evidently the law which was adopted was the law then prevailing in the ecclesiastical courts of England ; and other authorities deny, that the Roman canon law ever had force, proprio vigore, in those courts, even before the Reformation. ‘ 3 Proctor v. Proctor, 2 Hag. Con. 292, 800, 301. See also Dalrymple v. Dalrymple, 2 Hag. Con. 54, 81, 82, 4 Eng. Ec. 485, 497; Macqueen Parl. Pract. 446. [6] CHAP. I.] THE ENGLISH ECCLESIASTICAL LAW. §7 The same learned judge on another occasion said, that the older canons, even though receivable, are not to be considered as carrying with them their first authority... And Sir John Nicholl stated the doctrine more distinctly, thus: “Ifthe canon law is to govern the case, the text referred to does not come up to the point; even if it did, something more would need to be shown, namely, that it has been received as the law of this country ; it might not be necessary for this purpose to show a case precisely similar; it would be sufficient to show that it is according to the general rules observed here. But it isa strong and almost conclusive presumption against the present proceeding, that no suit appears ever to have been brought by any but the injured party.”? § 7. The recent case of The Queen v. Millis, before the House of Lords, called out from the judges of the common law courts their views of this matter, stated, by Lord Chief Justice Tindal, who delivered the unanimous opinion of the twelve judges, in the following words: “ My lords, I proceed in the last place to endeavor to show, that the law by which the spiritual courts of this kingdom have from the earliest time been governed and regulated, is not the general canon law of Europe, imported as a body of law into this kingdom, and governing those courts proprio vigore ; but, instead there- of, an ecclesiastical law, of which the general canon law is no doubt the basis, but which has been modified and altered from time to time by the ecclesiastical constitutions of our arch- bishops and bishops, and by the legislature of the realm, and which has been known from early times by the distinguishing title of the King’s Ecclesiastical Law... .. That the canon law of Europe does not and never did, as a body of laws, form part of the law of England, has been long settled as estab- lished law. Lord Hale defines the extent to which it is lim- ited very accurately. ‘The rule,” he says, ‘by which they 1 Burgess v. Burgess, 1 Hag. Con. 393. 2 Norton v. Seton, 3 Phillim. 147, 163, 1 Eng. Ec. 384, 388. * [7] §8 THE FOUNTAINS OF OUR MATRIMONIAL LAW. [BOOK L proceed is the canon law, but not in its full latitude, and only so far as it stands uncorrected either by contrary acts of par- liament or the common law and custom of England; for there are divers canons made in ancient times, and decretals of the popes, that never were admitted here in England. + Indeed, the authorities are so numerous and at the same time so express, that it is not by the Roman canon law that our jadges in the spiritual courts decide questions within their jurisdiction, but by the king’s ecclesiastical law, that it is sufficient to refer to two as an example of the rest. In Caud- rey’s case,? which is entitled ‘Of the King’s Ecclesiastical Law,’ in reporting the third resolution of the judges, Lord Coke says, ‘ As in temporal causes the king, by the mouth of the judges of his courts of justice, doth judge and determine the same by the temporal laws of England, so in cases eccle- siastical and spiritual, as namely’ (amongst others enumer- ated), ‘rights of matrimony, the same are to be determined and decided by ecclesiastical judges according to the king’s ecclesiastical law of this realm;’ and a little further he adds, ‘So albeit the kings of England derived their ecclesiastical laws from others, yet so many as were proved, approved, and allowed here, by and with a general consent, are aptly and rightly called, The King’s Ecclesiastical Laws of England.’ In the next place, Sir John Davies, in Le Case de Commen- dams,’ shows how the canon law was first introduced into England, and fixes the time of such introduction about the year 1290, and lays it down thus: ‘ Those canons which were received, allowed, and used in England, were made by such allowance and usage part of the king’s ecclesiastical laws of England ; whereby the interpretation, dispensation, or execu- tion of those canons, having become laws of England, belong solely to the king of England and his magistrates within his dominions ;’ and he adds; ‘ Yet all the ecclesiastical laws of England were not derived and adopted from the court of 1 Hale Hist. Com. Law, c. 2. * Caudrey’s case, 5 Co. 1. 5 Sir J. Dav, 69 b, 70-72 6. [8] CHAP. I.] THE ENGLISH ECCLESIASTICAL LAW. § Rome; for long before the canon law was authorized and published’ (which was after the Norman conquest, as before shown) ‘the ancient kings of England, namely, Edgar, Ethel- stan, Alfred, Edward the Confessor, and others, did, with the advice of their clergy within the realm, make divers ordinances for the government of the church of, England; and after the conquest divers provincial synods were held, and many con- stitutions were made, in both the kingdoms of England and Ireland ; all which are part of our ecclesiastical laws of this day.” 1 Although the lords did not all concur with the judges in the main point of this case, about which, we shall see here- after? there is conflict of opinion, still, in respect to this matter of the king’s ecclesiastical law, there appears to be no disagreement. The same conclusion is arrived at, as to the consistorial or ecclesiastical law of Scotland? ~ § 8. Having thus seen to what extent the Roman canon law is incorporated into the ecclesiastical law of England, we are not strictly required, in the further prosecution of our sub- ject, to enter into any examination of the question, whether it is a wise system or not. Undoubtedly the jurist, whom leis- ure and unfailing years should permit to become thoroughly accomplished in all legal lore, having traversed and minutely explored the rugged and wealthy fields of the common law, and passed among the foliage, flowers, and evening twilight melodies of the civil, would turn his steps into the winding ways, among the venerable cloisters, of the canon law. By some, this canon law is deemed a mere patchwork of absurd things on many beautiful things of equity, borrowed from the civil law. Lord Stowell, on the other hand, thought it “deeply énough founded in the wisdom of man.”* But it seems to be agreed, that, while “the commentators upon it became as numerous as those on the Roman law, they far 1 Reg. v. Millis, 10 Cl. & F. 534, 678, 680-682. 2 Post, § 159-166. 31 Fras. Dom. Rel. 20-39. * Dalrymple v. Dalrymple, 2 Hag. Con. 54, 64, 4 Eng. Ec. 485, 489. [9] §9 THE FOUNTAINS OF OUR MATRIMONIAL LAW. [BOOK I. exceeded them in subtilty, false refinement, and idle specula- tion; and in obscene dissertations the province is peculiarly their own. It has been observed by Blackstone, that some of the impurest books written in any language are those by the canonists, on the subject of marriage and divorce.”? Still, whatever be the true estimate of the canon law, as a system of jurisprudence, of philosophy, or of religion, it can have no peculiar weight in respect to the questions we are to consider _in this volume, even in cases where all other authorities are silent. Dy. Lushington, in a recent instance, observed: “ Very little assistance can be obtained from authorities;” that is, books of the canon law; “it may be well to consult Sanchez for minute and ingenious disquisitions on the subject; but I should not be disposed to consider his authority of any very great weight, even if it governed the present question, which Ido not think it does. I must rather endeavor to find out what are the true principles of law and reason applicable to the case, following, as far as practicable, or rather not contra- dicting, former decisions.” 2 § 9. That the ecclesiastical courts of England are regular tribunals of the country has already been observed; also, that the law administered in those courts is a part of the general law of the land.# It is not, indeed, technically termed com- mon law, in the limited acceptation of the word, but so in fact, like the law administered in the equity and admiralty tribunals. In an early case therefore it was “resolved, on great debate, that the ecclesiastical law is part of the law of the land;”* it is sometimes denominated a branch of the common law;° and so it has always been regarded both by ‘the courts and by parliament.§ 1 1 Fras. Dom. Rel. 23; 3 Bl. Com. 98. ® Deane v. Aveling, 1 Robertson, 279, 297. = Ante, § 1-3. * Prudam v. Phillips, 1 Harg. Law Tracts, 456, note. * « The common law of England of which the ecclesiastical law forms a part.” Lord Chief Justice Tindal, in Reg. v. Millis, 10 Cl. & F. 584, 671. See also Catterall v. Catterall, 1 Robertson, 580. 6 1 Burn Ec. Law, Phillim. ed. Pref. 25. fio]. CHAP. I.] THE ENGLISH ECCLESIASTICAL LAW. §11 §10. To what sources, then, shall we go for a knowledge of the law of the ecclesiastical courts? The source most reliable, of course, is the published reports of their decisions. In fact, this is the only source fully reliable; for all the old English text-books appear to contain a greater or less admix- ture of the Roman canon law, without any proper discrimina- tion as to what has been adopted in England. We may, however, mention two of the old text-books now accessible, whose authors Lord Stowell has denominated “ the oracles of our own practice, Godolphin and Oughton.”! The first, writ- ten in English, is entitled “ Repertorium Canonicum; or an Abridgement of the Ecclesiastical Laws of this Realm, con- sistent with the Temporal.” The third edition of this work was published in London, a. p. 1687. The same author has left a work, sometimes referred to, called the “ Orphan’s Leg- acy,” and another on “ Admiralty Jurisdiction.” Judge Story has quoted him as “a very learned admiralty judge.”2 The second of the afore-mentioned works of ecclesiastical law, written in Latin, and published in two quarto volumes in 1738, is entitled “Ordo Judiciorum ; sive Methodus Procedendi in Negotiiset Litibus in Foro Ecclesiastico-Civili Britannico et Hibernico.”” The first part of this work was, in 1831, translated by Law, a provincial ecclesiastical judge, who in- corporated with it some portions of the works of Clarke, Conset, Ayliffe, Cockburn, Gibson, and others, entitling the whole “ Forms of Ecclesiastical Law, or the Mode of Con- ducting Suits in the Consistory Courts.” This translation has gone into a second edition. The translator in his preface promised the second part of Oughton, but it appears not to, have been laid before the public. The most of what is valu- able both in Godolphin and Oughton has found its way into other and more modern books. § 11. There are two other of these old English works, 1 Briggs v. Morgan, 8 Phillim. 325, 1 Eng. Ee. 408, 409. ? In Chamberlain v. Chandler, 3 Mason, 242, 245. [11] §13 THE FOUNTAINS OF OUR MATRIMONIAL LAW. [BOOK I. worthy of note; the first of which, cited as Ayliffe’s Parergon, was published in 1726. It is entitled “ Parergon Juris Ca- nonici Anglicani; or a Commentary by way of Supplement to the Canons and Constitutions of the Church of England, not only from books of the Canon and Civil Law, but like- wise, from the Statute and Common Laws of this Realm.” This work is convenient for reference, but it contains much which is clearly not English law. It is a folio volume of between five and six hundred pages. The second, a work of probably more value and authority, is Gibson’s “ Codex Juris Ecclesiastict Anglicani; or the Statutes, Constitutions, Ca- nons, Rubrics, and Articles of the Church of England, Method- ically Digested under their Proper Heads, with a Commentary, Historical and Juridical.” The second edition, enlarged by the author, was published at Oxford, a. p.1761. It is in two folio volumes, containing together above sixteen hundred pages. Besides these, there are some other works of less note, which we need not pause to mention. § 12. Of later productions, Burn’s Ecclesiastical Law, in four volumes, is familiar to the profession. It is a useful compilation, or digest; for such is substantially its character, it having little claim to be considered an elementary treatise ; and it does not attempt any original elucidations of legal doctrine. The ninth edition, greatly enlarged and improved by Phillimore, was published in 1842. We have also Rogers’s “ Practical Arrangement of Ecclesiastical Law,” in one vol- ume; an excellent compilation, following substantially the plan of Burn, of whose work it is a sort of abridgment, and resembling a nisi prius treatise. The second edition was pub- lished in 1849, § 13. There are no regular reports of decisions in the ecclesiastical courts, previous to the year 1809. Then com- mence the reports of Phillimore, embraced in three volumes, coming down to and including the year 1821. Next we have the reports of Addams, whose two volumes, and 284 pages of an unfinished third volume, carry us into the year 1826. [12] CHAP. I.] THE ENGLISH ECCLESIASTICAL LAW. § 14 Haggard follows with three volumes, and an unfinished fourth, extending to 1833. Then succeeds Curteis, in three volumes, taking us through the year 1844. He is followed by Robert- son, whose two volumes bring us down to 1855. A single small volume, the earlier part of which is by Deane, and the later by Deane assisted by Swabey, the whole being cited under the joint names of Deane and Swabey, closes the work of reporting, previous to the establishment of the new courts for the hearing of testamentary and matrimonial causes, by the act of parliament of 1857.1. But, though the regular reports go back no further than 1809, the volumes of these contain, either in notes or otherwise, many earlier cases. And Dr. Phillimore made a collection; in two volumes, of cases decided chiefly between the years 1752 and 1758, with some cases of an earlier date, in the Arches and Prerogative Courts and Court of Delegates, containing the judgments of the Right Hon. Sir George Lee, cited as Lee’s Reports. We have also two volumes of immense value, compiled by Dr. Haggard, containing the judgments of Lord Stowell in cases argued and determined in the Consistory Court of London. In the Notes of Cases, and in the Jurist, are likewise some decisions not found in the regular series. So there are a few decisions mentioned in the notes to Poynter’s essay on Marriage and Divorce, not found elsewhere.? * §14. The before-mentioned English Reports, down to and including the volumes of Curteis, with the exception of the fourth volume of Haggard, are, together with Fergusson’s volume of Scotch Consistorial Reports, somewhat condensed, chiefly by the omission of cases deemed to be inimportant in 1 The present authorized series of reports in probate and matrimonial matters is by Swabey & Tristram. % We may also notice Milward’s “ Reports of Cases Argued and Deter- mined in the Court of Prerogative in Ireland, and in the Consistory Court of Dublin, during the time of the late Right Hon. John Radcliff, LL. D.;” which are good Jaw in England and the United States. These reports are in one volume, and embrace the period between the years 1816 and 1843. Q [13] § 15 THE FOUNTAINS OF OUR MATRIMONIAL LAW. [BOOK I. the United States, and published at Philadelphia, in seven volumes of close type, under the name of the English Ecclesi- astical Reports. The late ecclesiastical decisions, taken from the various series of reports, are republished at Boston, i in the Common Law and Equity Reports, as fast as they are made public in England. § 15. The English ecclesiastical tribunals have been pre- sided over by some of the ablest jurists in the kingdom. They have usually been the same judges who administered the admiralty law, selected from among the advocates at Doc- tors’ Commons, a position attainable only after many years of laborious study! But they have no experience in the trial of common law causes; and so are unaccustomed accurately to distinguish the law by which a case is governed, from the evidence by which the facts are sustained. Therefore, while their opinions are luminous and instructive, the precise point of law upon which a case turns does not always distinctly appear in them. And often we can discern the point only on comparing the case with several others, and drawing a con- clusion from the whole. Consequently, in studying their decisions, we are required to bear in mind these things, which indeed are more or less elements to be regarded in all judicial opinions Dr. Lushington once observed: “ Before I com- ment upon the authorities to which I shall refer, I think it right to premise, that every expression used by the learned judges must be considered with reference to the facts in each case, otherwise the greatest misapprehensions will arise. It seldom happens that a judge lays down any abstract principle of law, without reference to the circumstances of the case he has to decide; to repeat all the facts in each case, to prevent * See Report of Ec. Com. abr. ed. 28. These observations apply particu- larly to the courts held at the metropolis. A very large proportion of the provincial ecclesiastical judicatories are presided over by gentlemen — many of them clergymen — of no particular legal education, but their decisions are not reported. 2 1 Bishop Crim. Law, § 30. [14] CHAP. 1.] THE ENGLISH ECCLESIASTICAL LAW. § 154 misapprehension, would be endless.”! A knowledge of the peculiar practice of these courts is also important to an under- standing of the precise point involved in, or the precise weight to be given to, many of their decisions. For example, one possessing such knowledge would know, without the aid of authorities, that a judgment upon the admissibility of a plead- ing, particularly if favorable to its admission, and especially a mere dictum of the judge in debating its admissibility, merits less regard than a final adjudication.2 And many of their decisions, both final and interlocutory, establish important general principles, while unintelligible to persons not familiar with the practice of those courts; considerations of which practice, blending with considerations of the general princi- ples, produced in fact the results, set down in the reports without this separation of things into their elements. §15a@. An act of parliament, dated August 28, 1857 (20 &°21 Vict. c. 85), has now deprived the English ecclesiastical courts, from and after its going into operation in the year 1858, of their jurisdiction over matrimonial causes; trans- ferring it to a new court, styled “ The Court for Divorce and Matrimonial Causes.” Another and earlier act of the same session took away from those tribunals, in like manner, their jurisdiction over testamentary causes, giving it to a new tri- bunal; and so we of the United States have little occasion to consult the present doings of the ecclesiastical judicatories. 1 Phillips v. Phillips, 1 Robertson, 144, 157. * See Durant v. Durant, 1 Hag. Ec. 733, 763, 3 Eng. He. 310, 324. [16] §17 THE FOUNTAINS OF OUR MATRIMONIAL LAW. [BOOK I. CHAPTER II. THE MATRIMONIAL LAW OF THE UNITED STATES. Sxcr. 16-18. The Common Law of this Country viewed separately from the Courts. 19,20. The Doctrine that Courts are established by Legislation. 21-27. These Principles how applied to the Matrimonial Law. 28. Distinction in this Respect between Law and Practice. § 16. Srvcz the publication of the first edition of this work, the author has had occasion to discuss elsewhere the nature and origin of our unwritten law.! And he does not intend to illustrate at length, in one of his books, what is sufficiently ex- plained in another. But while the doctrines unfolded in his other work, and the statements already made in the opening chapter of this volume, sufficiently show, that the law of the ecclesiastical courts relating to marriage and divorce must be a part of our common law, the proposition lies so much in obscurity in the reports as to require a further elucidation of it here. We shall look at it in the lights of both principle and authority. , §17. Already we have adverted? to the general rule, that English colonists to an uninhabited country carry with them to their new locality their own English laws, except such as are inapplicable to their altered relations and circumstances.? The rule as to emigrants to a conquered country is different; and, though Blackstone considered the American colonies to be of the latter class, his opinion is manifestly erroneous ; 1 1 Bishop Crim. Law, § a et seq. 2 Ante, § 1. 51 Bl. Com. 107; 1 Kent Com. 348, 473; 1 Story Const. § 147, 148; 1 Burge Col. & For. Laws, preliminary chap. p. 81, 32. * 1 Bl. Com. 107. [16] CHAP. II.] MATRIMONIAL LAW OF THE UNITED STATES. §19 and both the reason of the thing, and all the judicial decisions, English and American, are the other way! This general doc- trine, in its applicability to this country, is everywhere recog- nized by our courts; and, in most of the States, it has been confirmed. either in the written constitution, or Py legislative enactment.? § 18. In considering the applicability of this doctrine to any particular English law, the ‘question of what English tribunal administers it in England is in reason wholly immaiterial.? So the language of the books is general, “all laws;”* and, though in,some of the American cases the term “common law” is used,> yet it is so employed in its large, not in its re- stricted, sense, as signifying all law not resting exclusively on express legislative sanction, or the letter of a written consti- tation. But aside from this view, the courts of England have specifically held, that the matrimonial law of the ecclesiastical tribunals is a branch of the law which colonists take with them. The weight of American decision is to the same effect, but this we shall consider further on.” § 19. Equally plain also is the proposition, as one both of fact and of legal doctrine, that colonists take not with them the courts of the mother country. And from this proposition results another, likewise both of fact and of legal doctrine, that, during the time intervening between the establishment of the colony and the courts, the laws must-remain practically 11 Story Const. § 152-157. ? 1 Bishop Crim. Law, § 11-15. 3 Terrett v. Taylor, 9 Cranch, 43; Pawlett v. Clark, 9 Cranch, 292. * Blankard v. Galdy, 2 Salk. 411 ; Anonymous, 2 P. Wms. 75. 5 Commonwealth v. Knowlton, 2 Mass. 530, 534; Sackett v. Sackett, 8 Pick. 309, 316. * Lautour v. Teesdale, 8 Taunt. 830; Rex v. Brampton, 10 East, 282 ; Catterall v. Catterall, 1 Robertson, 580, 581; ante, § 9. 7 Post, § 21 et seq. Q* [17] § 19 THE FOUNTAINS OF OUR MATRIMONIAL LAW. [BOOK I. inoperative! How long a period of this kind of torpidity would be required: to exhaust the life of the laws, so that on the organization of courts they would not be admitted as rules of decision, or whether this would ever be so, we know not; only we know, that a longer time would be necessary than has yet elapsed since the settlement of this country. Courts were rarely, if ever, organized here, at once, with power to administer all the laws the colonists brought with them ; for instance, in many of the colonies, even down to the Revolu- tion, there were no tribunals competent to administer equity ; and in some of the States, since that time, only limited equity powers have been conferred; yet the body of equity law has only slumbered, it has not died.2— And though our ancestors might have established, if they had chosen, a tribunal in each colony with jurisdiction to administer all the law existing in the colony, yet in fact they adopted, instead of this, the Eng- lish system; and the common law courts and the equity courts, for instance, were here restrained within limited spheres, the same as in England. The consequence is, that, in all parts of our country, has been witnessed what to Eng- ? Some judges have suggested, and in a few instances have partly acted on the idea, that, as observed in an Arkansas case, “in our body politic, if by any means the ordinary tribunal for affording relief be destroyed, some other tribunal must be found to supply its place; which is generally the courts of equity, it being the boast of those tribunals to give relief where others are incompetent.” Rose v. Rose, 4 Eng. 507, 512. But this, as thus stated, is not the prevailing doctrine. As a matter of legal principle, if the legislature should establish a system of laws, not mentioning any court in which they were to be enforced, the tribunal best adapted to enforce them ought to take the jurisdiction. Yet such a result rests on a reason inappli- ‘cable to the circumstances mentioned in our text. There is however a ju- risdiction, sometimes assumed by equity courts in this country, to pronounce a marriage void, as see post, § 264, 265, not exercised by the English equity tribunals, with which jurisdiction we can find little ground of principle to find fault. On the other hand, if a court is simply destroyed, we may as well suppose the legislature meant the law it used to administer should re- main in abeyance, as that another court should assume the authority to administer it, based merely on the act of destruction. 2 1 Story, Eq. Jurisp, § 56, 58. [18] CHAP. Il.] MATRIMONIAL LAW OF THE UNITED sTaTHs. § 21 lish eyes would be the strange sight of some portion of the law of the land lying in repose, ready to be awakened at the morning call of some tribunal receiving authority over the questions to which it relates, § 20. An illustration of this principle is observable in the fact, that some of ‘the States, as Massachusetts, having no distinct equity tribunals, have given from time to time to their common law courts jurisdiction over particular subjects of equity; and that, under these circumstances, the entire body of law administered in the English equity courts attaches to the matter immediately on the jurisdiction being created. And when a court gets a jurisdiction by reason of the principal subject, it entertains all questions incidental to the principal one, through the entire range of equity The same general doctrine appears still more plain from the fact, that, in those States where ‘there are io equity tribunals, or only limited ones, the United States courts exercise full equity powers, whenever the citizenship of the parties or any other cause gives them the authority to act at all in the premises. This they could not do, if equity law were not as really a law of those States as if there were State judicatories to administer it? § 21. The foregoing course of argument, established at each point by authorities drawn from decisions in matters not matrimonial, conducts us to the true answer to the ques- tion, whether the English matrimonial law is binding in marriage and divorce causes in this country. We have no ecclesiastical courts, and we never had them, even in colonial 1 Burditt v. Grew, 8 Pick. 108; Pratt v. Bacon, 10 Pick. 123; Holland v. Cruft, 20 Pick. 821. ? Robinson v. Campbell, 3 Wheat. 212, 222; United States v. Howland, 4 Wheat. 108, 115; Lorman v. Clarke, 2 McLean, 568; Gordon v. Hobart, 2 Sumner, 401, 405; Mayer v. Foulkrod, 4 Wash. C. C. 349, 354; Fletcher v. Morey, 2 Story, 555. - ‘[19] § 22 THE FOUNTAINS OF OUR MATRIMONIAL LAW. [BOOK I. times;1 therefore no tribunal in this country can take juris- diction of this class of questions, without the authority of a statute. But when a statute has given the authority, the tribu- nal is to exercise it according to the law of the land; dormant here, indeed, since the settlement of the country, yet derived by us then from England, where it was administered in the ecclesiastical courts. This view, though opposed apparently by some cases, which to the casual eye are adverse,” is sub- stantially borne out by other and direct adjudications, which may be deemed to have settled the law as thus stated.® § 22. Of the cases apparently adverse to this view, that of Burtis v. Burtis, decided by Chancellor Sanford, in New York, is an admirable illustration of one of the principles just mentioned ; namely, that a jurisdiction must be conferred, directly or indirectly, by statute, before the particular law can be practically administered The question arose in a pro- ceeding instituted before a court of equity to annul a mar- riage on the ground of physical impotence in the defendant. At the time the bill was filed, the statute had not been enacted authorizing the courts of equity to grant. divorces 1 As to Virginia, see on this point Godwin v. Lunan, Jefferson, 96. * Parsons v. Parsons, 9 N.H.309. But compare it with Quincy v. Quincy, 10 N. H. 272, and other cases, where the English decisions are cited appar- ently as authority. See also Burtis v. Burtis, 1 Hopkins, 557; Perry v. Perry, 2 Paige, 501; Ristine v. Ristine, 4 Rawle, 460; Olin v. Hungerford, 10 Ohio, 268; 2 Dane Ab. 301. ® Crump v. Morgan, 3 Ired. Eq. 91, 98; Williamson v. Williamson, 1 Johns. Ch. 488, 491; Barrere v. Barrere, 4 Johns. Ch. 187, 196 ; Wood v. Wood, 2 Paige, 108 ; Burr v. Burr, 10 Paige, 20, 35; Johnson v. Johnson, 14 Wend. 637, 642; North v. North, 1 Barb. Ch. 241; Head v. Head, 2 Kelly, 191; Lovett v. Lovett, 11 Ala. 763; Moyler v. Moyler, 11 Ala. 620; Jeans v. Jeans, 2 Harring. Del. 38; Almond v. Almond, 4 Rand. 662; Thornberry v. Thornberry, 2 J. J. Marshall, 322; Devanbagh v. Devanbagh, 5 Paige, 554, 556; McGee v. McGee, 10 Ga. 477; Wright v. Wright, 6 Texas, 3, 21; Nogees v. Nogees, 7 Texas, 538; Bauman v. Bauman, 18 Ark. 320. * s. pin Butler v. Butler, 4 Litt. 202; Dickinson v. Dickinson, 3 Murph. 327. And see Boggess v. Boggess, 4 Dana, 807. [20] CHAP. II.] MATRIMONIAL LAW OF THE UNITED STATES. § 23 for that cause; but the plaintiff contended, that the right existed under the laws which our forefathers imported from England, and that the equity court was the proper one to exercise the jurisdiction. The Chancellor however decided, that, this being a matrimonial question of which the ecclesi- astical tribunals have exclusive cognizance in England, he could not afford the relief, notwithstanding he was author- ized to grant divorces for certain other specific causes. But in pronouncing this opinion, he took occasion to assert apparently still broader ground; and to hold, that the statutes of the State authorizing divorces are original provisions, and that no part of the English ecclesiastical law was adopted in New York. He reviewed the history of divorces in the colony; and showed, that in colonial times none had been granted by the government or its courts, except four in 1670 and 1672, by Governor Lovelace, who either alone or in conjunction with his council seems to have exercised all magistracy, executive, legislative, and judicial; that, by the constitution of 1777, such parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the colony, as together formed the law of the colony on the thirteenth day of April, 1775, were declared to be the law of the State ; and he drew the inference, that, therefore, the law of England concerning divorces had not been received in the colony, and did not, under the constitution, become a law of the State? § 23. Chancellor Walworth afterward, in the case of Perry v. Perry, expressed his approval of this decision, in language which might seem to include a qualified appro- bation of the reasoning on which it is founded. And he laid 1 It is well enough to bear in mind the fact, that a considerable proportion of the ecclesiastical law, such as the law concerning the settlement of the estates of deceased persons, of marriages by contract per verba de presenti, and so on, had always been in active use in New York, as in other States. ? Burtis v. Burtis, 1 Hopkins, 557. [21] § 24 THE FOUNTAINS OF OUR MATRIMONIAL LAW. [BOOK I. down the following propositions: “ Where the right claimed, as a common law right, is of such a nature that it cannot be enjoyed in any manner, except by the direct. interference of a judicial tribunal to give the remedy; if no tribunal has been organized by the lawmaking power for that purpose, we may fairly conclude the right does not exist. But whenever the legislature distinctly gives the right, without creating or appointing any particular tribunal to ‘administer the remedy, we may fairly infer that it intended to vest that power in some of the existing tribunals of the country.” ! § 24, But it is worthy of observation, that the peculiar rea- soning used by Chancellor Sanford, in Burtis v. Burtis, was not essential to the point decided ; and that the same conclu- sion would have followed from the course.of argument laid down in the before written sections. The same may be said of the case decided by Chancellor Walworth; which case, moreover, was determined upon another and different point in it; so that we may regard his propositions, above quoted,? in the light only of dicta. And plainly, neither of these learned judges intended to affirm any thing more, than that a court, having no inherent jurisdiction over a subject either by statute or at common law, is not authorized to assume jurisdiction, merely because the legislature has not established such a tri- bunal as the one in which the remedy is administered in Eng- land; and that the exercise of the right must await the action of the legislative will, in other words, must remain in abey- ance, until a jurisdiction is created. For, though the decisions of Chancellor Sanford run through but one volume of Reports, of which that above cited is nearly the last, and thus the oc- casion to make this limitation to his opinion never arose; yet Chancellor Walworth, in a case in the same volume with the one above mentioned, and but a year before, expressly affirmed, of the law of condonation, that it did not rest upon the stat- utes of the State, but that “they are only declaratory of what the law was previous to their enactment.” For the previous 1 Perry v. Perry, 2 Paige, 501. 2 Ante, § 23. [ 22 ] CHAP. I.] MATRIMONIAL LAW OF THE UNITED STATES. § 25 law he referred to an English ecclesiastical authority, and add- ed: “In that case Sir William Scott shows such to have been the settled law of England long before the American Revolu- tion. It was therefore the law of this State at the time this suit was instituted.” And what is further conclusive of his opinion is, that not only for a series of years afterward, through his entire judicial career, was he in the habit of referring to the English ecclesiastical decisions as authoritative precedents in causes of divorce, but in one instance he granted ad interim alimony where the statute was silent, —the point directly in controversy, — on the sole ground of such having been the law before and without the aid of the statute. In the course of his observations in this latter case occurs the following pointed remark, in relation to one of the English decisions: “ The first of these cases,” he said, “was more than twenty years pre- vious to the Revolution, and shows what was the settled law on the subject at that time.’? Also in Burr v. Burr he ob- served: “I have no doubt, however, that the principles of the English decisions apply with full force to suits in this State for separation from bed and board for cruel treatment.” ® § 25. So Chancellor Kent of the same State had long be- fore laid down the broad proposition, that “the general rules of English jurisprudence on this subject must be considered as applicable, under the regulation of the statute, to this new- ly acquired branch of equity jurisdiction ;” and that the legis- lature, in granting the power of divorce, “intended that those settled principles of law and equity on this subject, which may be considered as a branch of the common law, should be here adopted and applied.” 4 1 Wood v. Wood, 2 Paige, 108. See also, to the same point, the opinion of Savage, C. J., in Johnson v. Johnson, 14 Wend. 687, 642. * North v. North, 1 Barb. Ch. 241, 245. 2 Burr v. Burr, 10 Paige, 20, 35. And see Devanbagh v. Devanbagh, 5 Paige, 554, 556. ‘ ‘4 Williamson v. Williamson, 1 Johns. Ch. 488. [23] § 27 THE FOUNTAINS OF OUR MATRIMONIAL LAW. [BOOK I. § 26. This question has been discussed ably by the Supreme Court of Georgia. In that State no court had authority to hear causes of divorce, until the constitution of 1798 took effect, or perhaps until the passage of the act of 1802, four years later, to carry out an article of the constitution upon the subject. The article limited the causes of divorce to “ le- gal principles,’ construed to mean the law of the State at the time the constitution was adopted. And the court held, that, as there had been no previous colonial or State legislation on the subject, “that branch of the common law known and dis- tinguished as the ecclesiastical law” was then the law of the State, made thus by the constitution substantially a part of itself. True, there had been a general act, in 1784, adopting the common law with the usual qualification, but this seems not to have much influenced the decision. Indeed it could not, for it was merely declaratory of the common law rule. § 27. But if the adjudications of our courts failed to estab- lish the foregoing views by direct authority, they would still establish them by necessary implication. For it is the univer- sal fact, running through all the cases, that everywhere in this country the English decisions, on questions of marriage and divorce, are referred to with the same apparent deference shown to the decisions, on other subjects, of the English common law and equity tribunals. And the usage of the courts deter- mines the law of the courts. Nor, as we contemplate the learning and practical wisdom which pervade the judgments delivered at Doctors’ Commons, can we fail to join in the opinion of Chancellor Kent, that this “supplemental part of the common law seems to be a brief, chaste, and rational code. It forms, in some respects, a contrast to the unwieldy compila- tions which constitute the canon law of the Roman Catholic * Head v. Head, 2 Kelly, 191. A query may arise, whether the court, in some other observations, put the right construction upon the clause of the constitution in question; but the point material to our argument remains unimpaired. d [24] CHAP. Il.] MATRIMONIAL LAW OF THE UNITED STATES. § 28 countries, and which contain very circumstantial and many unprofitable regulations on the subject of marriage and di- vorce.”2_ And though by some of our judges the wisdom of the ecclesiastical courts has not been deeply studied, the omis- sion has arisen rather from the difficulty of access to its sources, and from the many calls to investigation in other legal fields, than from any want of belief in its binding authority here, or failure in respect for its intrinsic excellence. § 28. A single explanation, however, is necessary here. The practice, of courts is a thing to a considerable extent within their own control. There is also reason for the sug- | gestion, that, when the legislature commits to a tribunal juris- diction over a particular cause of divorce, it cannot be pre- sumed to intend the tribunal shall administer the remedy in forms of procedure so alien to its usual ones, as are those of the ecclesiastical courts to the forms followed in equity and common law judicatories. Yet, on the other hand, when courts of law have been invested with equity jurisdiction, they have pursued the practice of the equity courts.2. Perhaps this may be accounted for in part by the fact, that equity remedies could not be administered in com- mon law forms. But, either in consequence of some course of reasoning which none of the cases explain, or in conse- quence of the fact, that, until latterly, the practice of the eccle- siastical courts was not understood even in England beyond the walls of Doctors’ Commons; the American tribunals have not, to any minute extent, copied the English practice, though in some particulars they have done so; and we cannot, there- fore, consider it as generally binding in this country. The precise line between practice and law, as applied to this distinction, has been nowhere drawn, and it must be left to good-sense and further judicial inquiry. The consideration 1 Barrere v. Barrere, 4 Johns. Ch. 187, 196. 2 See Commonwealth v. Sumner, 5 Pick. 360. 3 [25] § 28 THE FOUNTAINS OF OUR MATRIMONIAL LAW. [BOOK I. of this topic does not enter into the plan of the present vol- ume.! 1 Tt may be well to observe here, that there are no American cases in which the subject of this section has been much discussed. What is said in it, is the general result of my own reflections, after having read all the re- ported American decisions relating to divorce, with a familiarity with the English practice, which, though not equal in minute detail to what is pos- sessed by the practitioners in the ecclesiastical courts, was acquired only by a good deal of labor. We frequently, in this country, see the allegation of faculties ; and the libel for divorce im many of the States has some resem- blance to the English libel; but I have never met with an instance in which the other pleadings have followed the English method, or in which the testi- mony has been taken in the way it is in England in the ecclesiastical courts, to say nothing of the numerous minor peculiarities which stand thick as trees in a forest along the course of a suit for divorce as it used to be conducted in those courts. Neither has the rule of evidence, which requires the testi- mony of two witnesses, or of one with corroborating circumstances, been adopted in this country. At the present time, let me add, some of the pecu- liarities of the English practice are modified by the act of parliament which has transferred matrimonial causes to the new tribunal mentioned in the last ‘chapter. Ante, § 15a. [26] BOOK II. MARRIAGE. CHAPTER IIL. NATURE OF THE LEGAL STATUS OF MARRIAGE. Srcr. 29. How Marriage Defined. 80-41. Considerations relating to the Definition and Nature of Marriage. 42-45. Division of the Subject of Nullities of Marriage. : § 29. Tue word marriage signifies either the act of entering into the marital condition, or the condition itself. In the latter and more frequent legal sense, it is a civil status, of one man and one woman united in law for life, under the obligation to discharge, to each other and the community, those duties which the community by its laws holds incumbent on per- sons whose association is founded on the distinction of sex. Its source is the law of nature, whence it has flowed into the municipal laws of every civilized country, and into the gen- eral law of nations. And since it can exist only in pairs, and since none are compelled, but all who are capable are per- -mitted, to assume it, — marriage may be said to proceed from a civil contract between one man and one woman, of the needful physical and civil capacity. While the contract is merely an executory agreement to marry, it differs not essen- tially from other executory civil contracts, it does not super- induce the status, and on its violation an action to recover [27] § 31 MARRIAGE. [Book IL. damages may be maintained. But when it is executed in what the law regards a valid marriage, its nature as a con- tract is merged in the higher nature of the status. And, though the new relation retains some similitudes reminding us of its origin, the contract does in truth no longer exist, but the parties are governed by the law of husband and wife. In other words, when the parties agreed to be married, they undertook only to assume the marital status; and, on its assumption, the agreement, being fully performed according to its terms, bound them no longer. § 80. The books of the law contain numerous definitions of marriage, and the foregoing definition differs from every former one. It is free from some of the objections which may well be urged against all former definitions, whatever imper- fections it has of its own. ‘We never expect to find, in any definition, a clear and perfect guide to the law, pointing us, as the mariner’s compass points the mariner, to the true course, wherever we may be on the wide ocean of investiga- tion. "Were we possessed of definitions of this description, we should need only to announce them, and say no more of the law. But, though a legal definition cannot be compared tothe mariner’s compass, it may still be likened to figures and marks on the compass-box, ever misleading when not correct. § 31. In law writings generally, marriage is denominated a contract; yet it is said to be more than a contract, and to differ from all other contracts The principal division of opinion has been, whether it is to be deemed a civil contract, or a religious vow.2, The Roman Catholic church holds it a sacrament; and, though Protestants do not so generally, they ? Townsend v. Griffin, 4 Harring. Del. 440; Maguire v. Maguire, 7 Dana, 181, 183; Miles v. Chilton, 1 Robertson, 684, 694; Dickson v. Dickson, 1 Yerg. 110,112. But see The State v. Fry, 4 Misso. 120, 179; London- derry v. Chester, 2 N. H. 268; Holmes v. Holmes, 6 La. 463. * Lindo v. Belisario, 1 Hag. Con. 216, 230, 4 Eng. Ec. 367, 378. [23] CHAP. III.] NATURE OF THE LEGAL STATUS. § 31 account it as of Divine origin, and invest it with the sanctions of religion! Therefore it has been said, that, “according to juster notions of the nature of the marriage contract, it is not merely a civil or a religious contract; and at the present time it is not to be considered as originally and simply one or the other”? Yet all the decisions attest, that, however deeply the religious nature of marriage may engage the affections of the community, the law leaves this nature to the sole care of religion,? and contemplates it only as a civil institution.* Naturally, therefore, to distinguish marriage as the law views it from marriage as a religious rite, the courts and text-writers almost uniformly describe it as a “contract,” a “civil con- tract.” Thus Shelford says: “ Marriage is considered in every country as a contract,and may be defined to be a contract according to the form prescribed by the law, by which a man and woman, capable of entering into such a contract, mutu- ally engage with each other to live their whole lives together in the state of union which ought to exist between a husband and his wife.”5 Again it is said, that “marriage is a con- , tract having its origin in the law of nature antecedent to all civil institutions, but adopted by political society, and charged thereby with various civil obligations. It is founded on mu- tual consent, which is the essence of all contracts; and is entered into by two persons of different sexes, with a view to their mutual comfort and support, and for the procreation of children.” Other definitions give the idea of contract a more subordinate position. Thus Ayliffe says: “Marriage is a lawful coupling and joining together of a man and woman in one individual state or society of life, during the lifetime of one of the parties; and this society of life is contracted by the 1 Story Confl. Laws, § 108, 209. ? Lord Stowell, in Lindo v. Belisario, supra, 4 Eng. Ec. 374 ; Fornshill v. Murray, 1 Bland, 479. 3 1 BI. Com. 433. * Dumaresly v. Fishly, 3 A. K. Marshall, 368; Jenkins v. Jenkins, 2 Dana, 102. . 5 Shelford Mar. & Div. 1. ® Rogers Ec. Law, 2d ed. 595, tit. Marriage. See also 1 BI. Com. 433. 3* [29] § 32 MARRIAGE. [Book 11. consent and mutual good-will of the parties towards each other.”1_ And the authorities agree in distinguishing it from other species of contract. § 32. Some of the peculiarities of marriage, as distin- guished from ordinary contracts, have been forcibly pointed out by Lord Robertson, a Scotch judge, in a passage approv- ingly quoted by Judge Story? and by Mr. Fraser? “ Mar- riage,” he observes, “is a contract sui generis, and differing, in some respects, from all other contracts, so that the rules of law which are applicable in expounding and enforcing other contracts may not apply to this. The contract of marriage is the most important of all human transactions. It is the very basis of the whole fabric of civilized society. The status of marriage is juris gentium, and the foundation of it, like that of all other contracts, rests on the consent of parties; but it differs from other contracts in this, that the rights, obligations, or duties arising from it, are not left entirely to be regulated by the agreements of parties, but are, to a certain extent, matters of municipal regulation, over which the parties have no control by any declaration of their will; it confers the status of legitimacy on children born in wedlock, with all the consequential rights, duties, and privileges thence arising; it gives rise to the relations of consanguinity and affinity; in short, it pervades the whole system of civil society. Unlike other contracts, it cannot, in general, amongst civilized na- tions, be dissolved by mutual consent; and it subsists in full force, even although one of the parties should be forever ren- dered incapable, as in the case of incurable insanity, or the like, from performing his part of the mutual contract. No wonder that the rights, duties, and obligations arising from so important a contract should net be left to the discretion or caprice of the contracting parties, but should be regulated, * Ayl. Parer. 359, 7 Story Confl. Laws, § 109-111. * 1 Fras. Dom. Rel. 88. See also Shelford Mar. & Div. 16. [30] CHAP. IIL] NATURE OF THE LEGAL STATUS. § 34 in many important particulars, by the laws of every civilized country.” } § 33. Lord Bannatyne, another Scotch judge, has observed : “ Though the origin of marriage is contract, it is in a different situation from all others. It is a contract coeval with, and es- sential to, the existence of society ; while the relations of hus- band and wife, parent and child, to which it gives rise, are the foundation of many rights acknowledged all the world over, and which, though differently modified in different countries, have everywhere a legal character altogether independent of the will of the parties. ..... _ The rights arising from the re- lation of husband and wife, though taking their origin in con- tract, have yet, in all countries, a legal character, determined by their particular laws and usages, altogether independent of the terms of the contract, or the will of the parties at the time of entering into it.”? As forcibly illustrating the truth of the latter remark, we may allude to another by Lord Robertson, who says: “Ifa man in this country were to confine his wife in an iron cage, or to beat her with a rod of the thickness of the judge’s finger, would it be a justification in any court to allege, that these were powers which the law of England con- ferred on a husband, and that he was entitled to the exercise of them, because his marriage had been celebrated in that country ?” 8 § 34. Language similar to the foregoing has been employed also in the American tribunals. Thus in a Kentucky case, Robertson, C. J., observed: “ Marriage, though in one sense a - 1 Lord Robertson, in Duntze v. Levett, Ferg. 68, 385, 397, 3 Eng. Ee. 360, 495, 502. * Lord Bannatyne, in Duntze v. Levett, Ferg. 401, 3 Eng. Ec. 505. ® Lord Robertson, in Duntze v. Levett, Ferg. 399, 3 Eng. Ec. 504. “It must be remembered, that marriage is a contract altogether of a peculiar kind—that it stands alone, and can be assimilated to no other contract whatever.” Mr. Commissary Ross, in Gordon v. Pye, Ferg. 276, 339, 3 Eng. Ec. 430, 468 ‘ [31 ] § 35 MARRIAGE. [Boox Il. contract — because, being both stipulatory and consensual, it cannot be valid without the spontaneous concurrence of two competent minds —is nevertheless sui generis, and, unlike ordinary or commercial contracts, is publici juris; because it establishes fundamental and most important domestic rela- tions. And therefore, as every well-organized society is essen- tially interested in the existence and harmony and decorum of all its social relations, marriage, the most elementary and use- ful of them all, is regulated and controlled by the sovereign power of the State, and cannot, like mere contracts, be dis- solved by the mutuak consent only of contracting parties, but may be abrogated by the. sovereign will, either with or with- out the consent of both parties, whenever the public good, or justice to both or either of the parties, will be thereby sub- served. Such a remedial and conservative power is inherent in every independent nation, and cannot be surrendered, or subjected to political restraint or foreign control, consistently with the public welfare. And therefore marriage, being much more than a contract, and depending essentially on the sover- eign will, is not, as we presume, embraced by the constitu- tional interdiction of legislative acts impairing the obligation of contracts. The obligation is created by the public law, subject to the public will, and not to that of the parties’?! § 35. So, in the supreme court of Tennessee, it was re- marked: “ By the English canon and ecclesiastical law, this union of marriage is of a nature so widely differing from ordinary contracts; creating disabilities, and conferring privi- leges, between husband and wife; producing interests, attach- ments, and feelings, partly from necessity, but mainly from a principle in our nature; which together form the strongest ligament in human society, without which, perhaps, it could not exist in a civilized state; it is a connection of such a deep-toned and solemn character,— that society has even more interest in preserving it than the parties themselves. So " Maguire v. Maguire, 7 Dana, 181, 183. [32] CHAP. IIr.] NATURE OF THE LEGAL STATUS. § 35a it has been deemed in all societies, civilized, and not corrupt, in all ages.”! And in a Delaware case the court said: “ The marriage contract is one of a peculiar character, and subject to peculiar principles. It may be entered into by persons who are not capable of forming any other lawful contract; it can be violated and annulled by law, which no other contract can ; it cannot be determined by the will of the parties, as any other contract may be; and its rights and obligations are derived rather from the law relating to it, than from the contract it- self.” 2 § 35a. In a very recent case, Ames, C. J., delivering the opinion of the Rhode Island court on a question of right to take jurisdiction over a cause of divorce where the defendant was never domiciled within the State, and where also personal service on him could not be made, observed : “ Marriage, in the sense in which it is dealt with by a decree of divorce, is not a contract, but one of the domestic relations. In strictness, though formed by contract, it signifies the relation of husband and wife, deriving both its rights and duties from a source higher than any contract of which the parties are capable, and, as to these, uncontrollable by any contract which they can make. When formed, this relation is no more a contract than a ‘fatherhood’ or ‘sonship’ is a contract. It is no more a contract than serfdom, slavery, and apprenticeship are con- tracts; the latter of which it resembles in this, that it is formed by contract. To this relation there are two parties, as to the others ; two or more interested, without doubt, in the existence of the relation, and so interested in its dissolution. These parties are placed by the relation in a certain relative state or condition, under the law, as are parents and children, masters and servants ; and, as every nation and state has an exclusive sovereignty and jurisdiction within its own territory, so it has 1 Dickson v. Dickson, 1 Yerg. 110, 112, opinion by Catron, J. 2 Townsend v. Griffin, 4 Harring. Del. 440, 442. See further authorities cited ante, § 31. That marriage is to be viewed rather as a status than as a contract, see Noel v. Ewing, 9 Ind. 37, 49, 50. [33] § 364 MARRIAGE. [BooK II. exclusively the right to determine the domestic and social condition of the persons domiciled within that territory. It may, except so far as checked by constitution or treaty, create by law new rights in, or impose new duties upon, the parties to these relations, or lessen both rights and duties; or abrogate them, and so the legal obligation of the relation which involves them, altogether. This it may do, with the exception above stated, as to some relations, by Jaw, when it wills; declaring that the legal relation, of master and slave, for instance, shall cease to exist within its jurisdiction; or for what cause or breaches of duty in the relation, this, or the legal relation of husband and wife, or of parent and child, may be restricted in their rights and duties, or altogether dissolved, through the judicial intervention of its courts.” 4 § 36. Many more illustrations of the difference between marriage viewed as a contract, and ordinary civil contracts, have been given by judges and law writers. The subject is perhaps sufficiently elucidated already; but Mr. Fraser, after making some pertinent observations of his own, quotes Lord Stair as follows: “ Obligations arising from voluntary engagement take their rule and substance from the will of man, and may be framed and disposed of at his pleasure; but so cannot marriage, wherein it is not in the power of the parties, though of common consent, to alter any sub- stantial; as to make the marriage for a time, or take the power over the wife from the husband and place it in her or any other, or the right of provision and protection of the wife from her husband, and so of all the rest; which evidently [listen to this singular logic] demonstrateth, that it is not a human but a divine contract.” 2 § 36a. The institution of marriage, commencing with the race, and attending man in all periods, in all countries, of his 1 Ditson v. Ditson, 4 R. I. 87, 101, 102. * 1 Fras. Dom. Rel. 89, referring to Stair, 1, 4, 1. [34] OHAP. III. ] NATURE OF THE LEGAL STATUS. § 360 existence, has ever been considered the particular glory of the social system. It has shone forth, in dark countries and in dark periods of the world, a bright luminary on his horizon. And but for this institution, all that is valuable, all that is virtuous, all that is desirable in human existence, would long since have faded away in the general retrograde of the race, and in the perilous darkness in which its joys and its hopes would have been wrecked together. And as man has gone up in the path of his improvement, and higher and purer light has shone around him, still has this institution of mar- riage, receiving accessions of glory with every step of the race toward its ultimate glory, remained ever the first among the institutions of human society. And the idea, that any government could, consistently with the general weal, permit this institution to become merely matter of bargain between men and women, and not regulate it by its own power, is too absurd to require a word of refutation. If, then, marriage is to be cherished by the government, as the first and choicest object of its regard, surely the government will retain the right to regulate whatever pertains to marriage in its own way, and to modify the incidents of the relation from time to time as itself pleases. And while it will hold this right absolute, not to be controlled by the dictation of individuals, it will thus promote, in the highest degree, individual interests. Consulting individual interests however, and looking to the first principles of natural equity, it will not wantonly adopt any rule which is inherently oppressive toward its subjects. It will consequently cause its subjects to assume the matri- monial status only when they consent to assume it; and it will not ruthlessly interfere with such collateral matters as the mutual property rights of the parties. But the fact, that parties enter into marriage only over the threshold of a con- tract, furnishes the only foundation for the exceedingly loose definition which calls it a contract. - § 865. What is said in the last section conducts us to the further observation, that, though marriage is thus only a polit- [35] § 37 MARRIAGE. é [BooK It. ical and social status, viewed as the law views it; still, as seen from the religious and moral stand-point, it is an earthly and even a heavenly interest transcending all other interests of a social kind. It is, moreover, a thing of natural right; that is, all persons are naturally entitled to enter into the mar- riage relation, at a proper time and under proper circum- stances. Therefore every court, in considering questions not clearly settled or defined in the law, should lean toward this institution of marriage; holding, consequently, all persons to be married, who, living in the way of husband and wife, may accordingly be presumed to have intended entering into the relation, unless the rule of law which is set up to prevent this conclusion is distinct and absolute, or some impediment of nature intervenes. This proposition is indeed sustained in part by the well-recognized maxim, Semper presumitur pro matrimonio, a maxim too often practically overlooked by our tribunals; but, further than this, in all cases the presumptions both of law and of fact should be carried to the very verge to uphold a marriage, where marriage was meant by the parties. § 37. The law may, and to some extent does, allow the parties to regulate, by an antenuptial agreement, to survive the assumption of the status, the rights of property between themselves. And we may lay down the broad proposition, that a difference exists between the marriage status, and those property rights which are attendant upon, and more or less closely connected with it. Lord Stowell has well remarked, that “rights of property are attached to it on very different principles in different countries; in some, there is a communio bonorum ; in some, each retain their separate prop- erty; by our law it is vested in the husband. Marriage may be good independent of any considerations of property, and the vinculum fidei may well subsist without them.”2 The 1 Piers v. Piers, 2. H. L. Cas. 331. * Lindo v Belisario, 1 Hag. Con. 216, 231, 4 Eng. Ec. 867, 374. [36] CHAP. IIL.] NATURE OF THE LEGAL STATUS. § 38 distinction is fully established in the American courts! And we shall find, as we pursue our investigations, that it is one of the highest importance in the law, whether viewed prac- tically or theoretically. § 38. While, however, the law thus permits the married persons to regulate somewhat, by an antenuptial agreement, their property rights with each other, it furnishes the rule to be applied in the absence of such an agreement, and presumes they mutually consented, having failed to establish a different rule of their own, to be governed by it.- And we may well regard an agreement of this kind, and the rule of law to govern the parties in the absence of the agreement, and per- haps all the rules which concern their relations to each other in matters of mere property, as not belonging to the status itself; but rather as being the drapery hung about the status, giving it ornament and hue, while really forming of it no part. Denude the status of this drapery, and nothing remains but the shadow of its origin lying upon our memories which bears even the similitude of a contract. No suit at law or in equity, sounding in contract, and going to the marital relation itself, can be maintained between husband and wife during their lifetime; and, after the death of one of them? an action of this nature will not lie against the representatives of the deceased. And where there is no remedy known to the law, not merely where the remedy is suspended for the want of a tribunal competent to administer it, there is no right? The 1 Holmes v. Holmes, 4 Barb. 295, 301; Maguire v. Maguire, 7 Dana, 181; Harding v. Alden, 9 Greenl. 140; Crane v. Meginnis, 1 Gill & J. 463; Townsend v. Griffin, 4 Harring. Del. 440; Sanford v. Sanford, 5 Day, 353. 2 And see McCormick v. McCormick, 7 Leigh, 66; Shaw v. Thompson, 16 Pick. 198. ‘ ® See Holmes v. Holmes, 4 Barb. 295, 301, 302; ante, § 23. “It is a settled and invariable principle in the laws of England, that every right ‘when withheld must have a remedy, and every injury its proper redress.” 3 Bl. Com. 109. Ubi jus ibi remedium, is a maxim of the law, concerning which see Broom Leg. Max. 146. 4 [387] § 40 MARRIAGE. [BooK II. suit for divorce, we shall hereafter see,! is not an action upon contract, but a proceeding sui generis, founded on the viola- tion of duties enjoined by law, and therefore resembling more an action of tort than of contract. § 39. The husband is under obligation to support his wife ; so is he to support his childsen. The obligation in neither case is one of contract, but of law. The relation of parent and child, equally with that of husband and wife from which the former proceeds, is a civil status; and a strong resemblance exists between the legal characters of these two relations, much stronger than between either of them and the relation of parties to ordinary contracts. Another similitude is that of guardian and ward; the guardianship being assumed vol- untarily, while the mutual obligations and duties it imposes are created by law. je § 40. It is not surprising, therefore, that the sagacious mind of Judge Story prompted him to pen the following note, found in his volume on the Conflict of Laws: “I have throughout,” he says, “ treated marriage as a contract in the common sense of the word, because this is the light in which it is ordinarily viewed by jurists, domestic as well as foreign. But it ‘appears to me to be something more than a mere contract. It is rather to be deemed an institution of society, founded upon the consent and contract of the parties; and ‘in this view it has some peculiarities in its nature, character, operation, and extent of obligation, different from what belong to ordinary contracts.”? Again he says: “ Marriage is not treated as a mere contract between the parties, subject, as to its continuance, dissolution, and effects, to their mere pleasure and intentions. ‘But it is treated as a civil institu- tion, the most interesting and important in its nature of any in society.” § 1 Post, § 298 et seq. 3 Story Confl. Laws, § 200. [38] 2 Story Confl. Laws, § 108, note. CHAP. III.] NATURE OF THE LEGAL STATUS. § 41 § 41. In England and continental Europe, little incon- venience can result from designating a perfected marriage by the word contract, rather than status; for the jurists of those countries are not troubled with many of the peculiar questions of constitutional law ‘and of the conflict of laws relating to divorce, which, arising under the constitutions of the United States and of the several States of this Union, have proved more embarrassing than almost any other to our courts, and have led to irreconcilable diversities of decision. But no one can read the conflicting decisions of the Amer- ican tribunals on this subject without perceiving, that the chief embarrassment has arisen from the tendency to apply the rules governing contracts to the status of marriage, owing to the fact of marriage having been so commonly defined by courts and jurists as being a contract. And no learned inquirer can fail to perceive, that those judges who have looked most completely through and beyond the written definitions of marriage, to the thing itself, have drawn rules best calculated to harmonize conflicting interests, preserve the rights of sovereign States, and redress the wrongs of individual citizens. Definitions are not necessarily law ; and legal writers are bound to reform definitions, as lexicographers do, so that they may truly describe the object intended. Thus to say, that marriage is a contract, when speaking of the marital condition, not of the agreement to assume it, is, as we have seen,! according to the current of authorities, inaccurate ; since they further declare, that it differs in many’ particulars from other contracts. And when the differences are pointed out, we find they have covered every quality of the marriage, and left in view nothing of the contract. To term it, therefore, a contract, is as great a practical incon- venience as to call a certain well-known engine for propelling railroad cars “a horse,” adding, “but it differs from other horses in several important particulars ;” and then to explain the particulars. More convenient would it be to use at once the word locomotive. ? Ante, § 31 et seq. [a] § 44 MARRIAGE. [BOOK I. § 42. We have already said, that a legal contract of mar- riage is necessary to superinduce or create the status. The law compels no persons to assume the marital relation ; two, who are capable, must first agree to assume it And their mutual agreement is the only thing requisite, in a state of nature, to constitute marriage? But the laws of many, perhaps most, civilized countries have added other prelimi- naries ; though philosophically they may be resolved into this one, since the law does not recognize as a contract what is entered into contrary to the provisions of law. : § 43. We shall therefore devote the next book of the present volume to a consideration of those imperfections which enter into the contract of marriage, and either prevent it from superinducing the status, or render the status liable to -be devested by reason of the defect. And we shall entitle the book Nullities of Marriage; because this expression, though not strictly accurate, has been so commonly used to convey the idea as to render it practically better than any which could be suggested as an original one. And, for the sake of convenience, we shall discuss the questions in the order of the following proposition: As the several elements essential to a valid marriage, there must be, 1. An agreement; 2. according to the forms made necessary by the municipal law; 3. between a man and woman, both of whom are of sound mind; 4. of the requisite age; 5. capable of contracting marriage generally ; 6. and with each other; 7. and capable of sexual intercourse.. These several elements must combine. The failure of any one of them makes the marriage invalid. § 44, The proposition thus stated discloses the various grounds of nullity; namely, — 1. The want of consent to the marriage; as — 1 Ante, § 29. ? Lord Stowell, in Lindo v. Belisario, 1 Hag. Con. 216, 230, 4 Eng. Ec. 367, 374. [40] CHAP. III.] NATURE OF THE LEGAL STATUS. § 45 (1) Generally. (2) Where fraud, error, or duress intervenes.” 2. The want of the requisite forms; as — (1) Parties married abroad under forms differing from their own? . (2) Married at home, what forms required by the com- mon law and by statutes.* 3. Unsoundness of mind, disqualifying one or both of the parties to consent.6 4. Insufficiency of age.® 5. Social incapacities to contract matrimony.” 6. Incapacity of the parties to marry with each other ; as — (1) The impediment of affinity or consanguinity? (2) Other special disabilities. 7. Physical impotence.” Having discussed these several grounds of nullity, we shall close the book with some considerations concerning the suit to annul the marriage. '§ 45. The foregoing impediments do not all, when they in- tervene, render the marriage absolutely void; some render it only voidable. And as this distinction between void and voidable has a peculiar significance, and is subject to peculiar rules, in the matrimonial law, we must delay our course while we discuss it somewhat in a separate chapter. , 1 Post, c. 5. 2 Post, c. 6. 3 Post, c. 7. * Post, c. 8. 5 Post, c. 9. ® Post, c. 10. 7 Post, c. 11. 8 Post, c. 12. * Post, c. 13. 0 Post, c. 14. 4* [41] § 46 MARRIAGE. [Boox IL. CHAPTER IV. DISTINCTION OF VOID AND VOIDABLE IN MARRIAGE. Srct. 46. Definitions. 47-52. History and Nature of the Distinction. 58-56. What Marriages are Voidable, what Void. 57-59. Effect of a voidable Marriage, and of its Dissolution. 60-62. English and American Statutes. § 46. A marrraan is said to be void, when it is good for no legal purpose, and its invalidity may be maintained in any proceeding, in any court, between any parties, whether in the lifetime or after the death of the supposed husband and wife, and whether the question arises directly or collaterally A marriage is said to be voidable, when the imperfection can be inquired into only on a proceeding conducted for the pur- pose of setting it aside, during the lifetime of both the husband and wife. Until set aside, it-is practically valid; when set aside, it is rendered void from the beginning? The canonical impediments to marriage, such as consanguinity, affinity, and impotence, render it merely voidable, unless a statute other- wise directs; the civil impediments, such as a prior marriage, idiocy, and the like, render it usually void. 1 Shelford Mar. & Div. 479, 480; Wilson v. Brockley, 1 Phillim. 132; Ferlat v. Gojon, Hopkins, 478,493; Hantz v. Sealy, 6 Binn. 405; Gathings v. Williams, 5 Ired. 487; Hemming v. Price, 12 Mod. 432; Patterson v. Gaines, 6 How. U. 8. 550, 592; Fornshill v. Murray, 1 Bland, 479; Mount Holly v. Andover, 11 Vt. 226, 2 Shelford Mar. & Div. 483, 484; 1 Bl. Com. 434; Bonham v. Badgley, 2 Gill, 622. * Ib.; Perry v. Perry, 2 Paige, 501; Aughtie v. Aughtie, 1 Phillim. 201. * Shelford Mar. & Div. 154; 1 Bl. Com. 434; Rogers Ec. Law, 630, tit. Marriage; Elliott v. Gurr, 2 Phillim. 16, 1 Eng. Ec. 166, 168; Rex v. Wroxton, 4 B. & Ad. 640; Jaques v. The Public Administrator, 1 Brad, 499, [42] CHAP. IV.] VOID AND VOIDABLE. § 48 § 47. In the discussion of the subject of this chapter, we shall find it necessary to look a little at the history of the dis- tinction we are considering; because, though the division of things into void and voidable extends into other departments of our jurisprudence, it is not anywhere else governed by the same rules as here, and the reason of the rules here governing can be fully seen only in the light of their history. When, in an- cient times, the ecclesiastical courts of England decided causes upon laws derived from the See of Rome and the councils of the church,! the common law judges were presumed to have no knowledge of those peculiar laws; and so, if a marriage (a thing of ecclesiastical control) was celebrated, they could do no otherwise than hold it valid, since in theory they knew nothing of the legal rules entering into the question? Asa consequence of this proposition, a prohibition would not lie, from the common law to the ecclesiastical tribunals, to pre- vent the latter from dissolving a marriage on the ground of canonical impediments. And we may infer, that, in all cases in which the question of the validity of a marriage arose in the common law courts, and was not referred for decision to the spiritual,* the marriage was held to be good, unless some civil impediment were shown. § 48. But the law of the church became gradually burden- some to the people. The impediments to marriage were greatly extended; and consanguinity and affinity, even to the seventh degree of the canonical reckoning, which might em- brace the fourteenth degree of the civil law, were at one time 1 Ante, § 4. * The point of the text is pithily illustrated in the -following words, ex- tracted from a letter of his Holiness the Pope, to the king of Sardinia, dated Sept. 19,1852, “ There would be,” he says, ‘a veritable usurpation over the legitimate power, if the civil law were to pretend to know and judge cases in which the sacrament of marriage has been, or has not been, regularly celebrated by the church.” ‘See Parl. Rep. of Div. Com. pub. 1858, p. 77. 5 Harrison v. Burwell, Vaugh. 206, 207, 213. * The State v. Banfort, 2 Rich. 209; Poynter Mar. & Div. 167. [43] § 49 MARRIAGE. [Book IL. made obstructions to the nuptials; though marriages in the fourth canonical degree, contracted between infidels who were afterward converted, were not dissolved! And an affinity, nearly equivalent to consanguinity, was also created by sexual intercourse without marriage; in consequence of which a per- son guilty of fornication could not marry one related to the particeps criminis within a certain portion of the prohibited degrees.2, These impediments seemed not the less burden- ‘some to the more conscientious class of the people; though, as an offset, they were often made the means of dissolving mar- riages, indissoluble still by the general ecclesiastical law. Per- sons within the prohibited degrees might be permitted to marry, on cause shown, by special dispensations, the granting of which is said to have brought revenue to the church? § 49. In these circumstances came Stat. 32 Hen. 8, c. 38, which lies at the foundation of the distinction of void and voidable in marriage. It recites, in the preamble, that there- tofore “the usurped power. of the bishop of Rome” had made in marriage “that unlawful which by God’s word is lawful,” — that many married persons, after cohabitation and the birth of children, had been divorced for precontract, — that “by reason of other prohibitions than God’s law admitteth, . as in kindred or affinity between cousin-germans, and so to fourth and fourth degree, [and in] carnal knowledge of any of the same kin or affinity before in such outward de- grees, which [marriages] else were lawful, and be not prohibit- ed by God’s law,” many married persons had been divorced, — that “marriages have been brought into such an uncertainty thereby that no marriage could be so surely knit and bounden but it should lie in either of the parties’ power and arbiter, 1 4 Reeves Hist. Eng, Law, 58; Poynter Mar. & Div. 99 et seq. * Rees Cyc. art. Marriage ; Macqueen Parl. Pract. 476, 477; Swinb. Spousals, 288. In a modern Scotch case, this kind of affinity was denied. Hamilton v. Wyllies, 5 Scotch Sess. Cas. new ed. 668. * 4 Reeves Hist. Eng. Law, 59; Ayl. Parer. 364. See also the preamble to Stat. 82 Hen. 8, c. 38. [44] CHAP. IV.] VOID AND VOIDABLE. § 50 casting away the fear of God, by means and compasses to prove a precontract, a kindred, and alliance, or a carnal knowl- edge, to defeat the same, and so under the pretence of these allegations afore rehersed to live all the days of their lives in detestable adultery,” — enacts, “ That from the first day of the month of July next coming, in the year of our Lord fifteen hundred and forty, all and every such marriages as within this Church of England shall. be contracted between lawful per- sons (as by this act we declare all persons to be lawful that be not prohibited by God’s law to marry), .... shallbe .... deemed, judged, and taken to be lawful, good, just, and indis- soluble, notwithstanding any precontract or precontracts of matrimony not consummate with bodily knowledge, &c. And that no reservation or prohibition, God’s law except, shall trouble or impeach any marriage without the Levitical de- grees. And that no person, &c. shall, &c. be admitted in any of the spiritual courts .... to any process, plea, or allegation, contrary to this aforesaid act.” 4 § 50. Now the temporal courts were always supposed able to understand, and so,they could always construe, any act of parliament, to whatever subject it might relate. We have seen? also, that they had authority to restrain by prohibition the spiritual tribunals, when the latter undertook to exercise a jurisdiction beyond their proper limits. Therefore the result of the above statute of Henry VIII. was, to authorize the temporal courts to interfere by prohibition, whenever the spirit- ual attempted to impeach a marriage without the Levitical degrees ; that is, one not forbidden by “ God’s law.”8 But it gave them no new power to interfere when the marriage was 1 See 2 Inst. 684; Gibs. Cod. 411. There were some other statutes con- cerning marriage, in respect to consanguinity and affinity, passed both before and after Stat. 32 Hen. 8, c. 38; but they are neither important, nor mate- rial to the point here presented. See Shelford Mar. & Div. 163 et seq. 2 Ante, § 3. 5 Shelford Mar. & Div. 166; 1 Woodd. Lect. 250; Harrison v. Burwell, Vaugh. 206. . [45] § 51 MARRIAGE. [Book IL. within those degrees; for it was silent as to whether parties within those degrees might marry or not! Consequently the temporal courts did not, subsequently to this statute, more than before,? undertake to say a marriage was void by reason of consanguinity, affinity, or other canonical impediment, not being without the Levitical degrees. Perhaps they might have held it void, if incestuous according to the law of na- ture.2 But they did restrain the spiritual tribunals, whenever, after the death of one of the parties, they undertook to declare a marriage null by reason of any canonical infirmity ; because, they said, it would bastardize and disinherit the issue, who could not so well defend themselves as the parties might have done; yet still they allowed the spiritual tribunals to proceed criminally against the living offender, for the’ incest only.* § 51. If the reader will here pause, he will see, that these two jurisdictions, the temporal and the spiritual, proceeding as we have described after the enactment of Stat. 82 Hen. 8, c. 38, must necessarily have produced, where there was any canonical impediment, precisely what, we have termed the voidable in marriage. For, in the flexible forms of procedure used in the ecclesiastical courts, whenever, during the lifetime of both the parties, any inquiry into the validity of a marriage arose there, the inquiry took at once the character of a suit for nullity ; since this suit need neither be instituted nor car- ried on by one of the parties to the marriage, it being equally maintainable by any person having an interest in the ques- tion® Even in a criminal prosecution before the ecclesiasti- cal judge for incest, in which the office of the judge could be * Butler v. Gastrill, Gilb. Ch. 156. The citation, in the report of this case, of Stat. 38 Hen. 8, c. 13, is doubtless a misprint for Stat. 32 Hen. 8, c. 38, there being no such statute as the former. 2 Ante, § 47. 3 Post, § 58, 130. * Ray v. Sherwood, 1 Curt. Ec. 193, 199; 2 Inst. 614. 5 Ray v. Sherwood, 1 Curt. Ec. 178, 193, 1 E. F. Moore, 353. [46] OHAP. IV.] VOID AND VOIDABLE. § 62 promoted by any one, the marriage would be declared null. When, on the other hand, the question of the validity came before the lay tribunals, as it might do collaterally but never directly, if an impediment of the canonical kind were alleged against it, those tribunals, having theoretically no knowledge of the canonical law, had therefore no jurisdiction to inquire into the impediment; and so, the fact of marriage appearing, they held it, for the purposes of the trial, to be good. And if the spiritual courts undertook to dissolve a marriage for such an impediment after one of the parties was dead, the tem- poral restrained them by prohibition; while they permitted them to proceed in the suit for nullity during the life of the parties. That is, merging all considerations of different tri- bunals, if the matter was agitated while both parties were living, in what was originally, or by the forms of procedure became, a suit for nullity, the marriage was pronounced void ; if, in any other form during their life, or in any possible form after the death of one of them, the marriage was held to be good; and this is, in effect, the definition we have already given of a voidable marriage.? If the temporal courts had possessed the jurisdiction to decide upon the canonical infirmi- ties, those infirmities, like the civil, would have rendered the marriage void. And hence the rule, that the canonical im- pediments render the marriage voidable, and the civil render it void. ' § 52. This distinction of void and voidable, unknown to the ancient common law of England,? but established thus as the mere result of the action of the two jurisdictions, became soon crystallized into the law as a part of the com- mon law itself ;* and to it the ecclesiastical courts, as well as 1 Woods‘v. Woods, 2 Curt. Ec. 516, 529, 7 lings Ee. 181, 187; Chick v. Ramsdale, 1 Curt. Ec. 34. 2 Ante, § 46. 3 Ray v. Sherwood, 1 Curt. Ec. 193, 199. * The ancient common law is now partially restored in England by re- ent statutes. Rogers Ec. Law, 2d ed. 635; post, § 60. [47] § 52 MARRIAGE. [BOOK II. those of the common law, yielded; making it therefore a doc- trine equally respected in all the tribunals. In Scotland, where this cause has not operated, such a distinction is said to be unknown;? yet this has been doubted there, and it seems not to be clear, whether, in the case of impotence in one of the parties to a marriage, the other is entitled to enter into a second marriage without having the first declared null? 1 Elliott v. Gurr, 2 Phillim. 16, 1 Eng. Ec. 166, 169. 2 Shelford Mar. & Div. 86; Wadd. Dig. 223, note. 2 1 Fras. Dom. Rel. 81; Masterton’s case, 1 Swinton, 427. Much confu- _sion has existed in the minds of judges not familiar with the history recorded in our text, concerning this distinction of void and voidable in marriage. Therefore it is perhaps desirable to clear the matter still further, by cor- recting the misapprehension which appears in an opinion ofa very. able and learned judge of the North Carolina court. In the case of Gathings v. Wil- liams, 5 Ired. 487, Ruffin, C.J., observed : “ There is a distinction in the law between void and voidable marriages, where even they were regularly solemnized. The latter, which are sometimes called marriages de facto, are such as are contracted between persons who have capacity to contract mar- riage, but are forbidden by law from contracting with each other; as to which, therefore, there was a jurisdiction in the spiritual courts to declare the nullity of the marriage. But, until the nullity was thus declared, as an existing marriage it was recognized as valid both in the canon and cémmon law; and, as there can be no proceeding in the ecclesiastical court against the parties after their death, or that of one of thesh, that event virtually makes the marriage good ab initio to all intents, and the wife and husband may have dower and curtesy, and the issue will be legitimate. Co. Lit. 32, 33. But where the marriage is between persons one of whom has no capac- ity to contract marriage at all; as where there is a want of age, or under- standing, or where a prior marriage is still subsisting ; the marriage is void absolutely and from the beginning, and may be inquired into in any court.” Now this statement of the matter is inaccurate in several respects. For example, there was plainly no rule of the ancient ecclesiastical law against declaring a marriage void for canonical impediments after the death of the parties ; since in fact the ecclesiastical courts undertook to do so, and were only restrained by prohibitions from the temporal, which prohibitions fur- nished matter of bitter complaint by the ecclesiastical jydges; Ray v. Sher- wood, 1 Curt. Ec. 193, 199; 2 Inst. 614; Harris v. Hicks, 2 Salk. 548; though at length, as we have seen in the text, these judges yielded. More- aver, it is hardly accurate to say, that a marriage is void where one of the [48] CHAP. IV.] VOID AND VOIDABLE. § 53 § 53. The canonical disabilities, as already seen, render the marriage voidable, not void.!. This rule has no exceptions, other than have been created by statutes. These disabili- ties are physical impotence, and consanguinity and affinity? They will be further considered in their order.2 Perhaps also the antiquated impediment of precontract may be reck- oned as canonical. That was where one of the parties toa marriage was under a prior agreement to marry a third per- son; or where one of them had already married a third person, but not according to the forms required by the ecclesiastical law. The ecclesiastical tribunals, in such a case, would com- pel the celebration of the prior undertaking in due form, and pronounce this other marriage, though the first duly celebrated, void from the beginning. But, until thus avoided, it was good; or rather, it was certainly good when the precontract was a mere executory agfeement to marry ; possibly, not cer- tainly, when it had even been followed by words of present consent, or by copula.t parties to it has no capacity to contract marriage at all, and voidable where there is no capacity to contract with each other. A person physically im- potent has no capacity to marry at all, yet his marriage is voidable, not void, impotence being a canonical impediment; and where, as in Scotland, the guilty party after a divorce is forbidden by law to marry with the particeps " eriminis, there is merely an incapacity in the parties to contract with each - other, yet a marriage between them is evidently void, not voidable. See Cox v. Combs, 8 B. Monr. 231; Berkshire v. The State, 7 Ind. 389. 1 Ante, § 46. * Elliott v. Gurr, 2 Phillim. 16, 1 Eng. Ec. 166; Withipole’s case, cited in Howard ». Bartlet, Hob. 181; Rennington v. Cole, Noy, 29. * Post, c. 12 & 14. * Baxtar v. Buckley, 1 Lee, 42, 5 Eng. Ec. 301; Lord Campbell, in Reg. v. Millis, 10 Cl. & F. 534, 763, 784. Lord Denman, in this latter case, p- 815, expressed the opinion, in opposition to Lord Campbell, that the matrimonial contracts of which the ecclesiastical courts enforced the specific performance were contracts per verba de presenti only, a point apparently contradicted by the recitations of facts in Stat. 32 Hen. 8, c. 88. ~And see Scrimshire v. Scrimshire, 2 Hag. Con. 395, 4 Eng. Ee. 562,564. According to Swinburne, whose authority can hardly be disputed on such a point, the party refusing to celebrate the marriage might be proceeded against in the 5 [49] § 54 MARRIAGE. [BooxK 11. § 54, Another kind of voidable marriage may be men-. tioned; though perhaps the impediment rendering it such is not canonical. The impediment is stated by Gibson as follows: “In like manner do the books of common law resolve, in case of a-divorce @ vinculo for impotency, after three years’ trial and examination, and sentence in the spiritual court for the perpetual impotency of generation. As it was in Bury’s case,! who was so divorced, but after- wards married another wife, and had children by her; upon which it was urged, that, the church being evidently deceived as to his perpetual impotency, the divorce thereupon was null; and, if so, that the second marriage was unlawful and the issue illegitimate. But the court resolved, that, since .there had been a divorce ‘for frigidity or impotence, it was clear that each of them might lawfully marry again; and, though it should be allowed, that the church appearing to have been deceived in the foundation of their sentence the second marriage was voidable, yet, till it should be dissolved, it remained a marriage, and the issue during the coverture ecclesiastical court, whether the espousals were per verba de preesent{ or per verba de futuro. Butin the latter case, if the defendant had already entered into a marriage duly solemnized with another person, a spécific performance of the contract would not be required, so as to annul such marriage [see, however, the above-recited Stat. of Hen. 8]; and even if he had not, the court would not proceed to the significavit against him, on his refusing to celebrate a marriage with the plaintiff, but would only punish him for the contempt. On the other hand, if the espousals were per verba de presenti, or per verba de futuro cum copula, the subsequent marriage with any other person would be annulled; the defendant would be required publicly to solemnize his marriage with the plaintiff, and enjoined penance; and, on refusal, excommunicated, and imprisoned by writ out of chancery, until compliance was effected. Swinb. Spousals, 85, 223, 226, 231, 232, 239. See also Holt v. Clarencieux, 2 Stra. 937. By the before-mentioned Stat. 32 Hen. 8, c. 38 (see ante, § 49), the impediment of precontract, except when copula had followed, was abolished ; but this branch of the statute was repealed by Stat. 2 & 3 Edw. 6, c. 83. Afterward, however, by Stat.4 Geo. 4,c. 76, § 27, the impediment was entirely done away in England. See Rogers Ec. Law, 2d ed. 645; Shelford Mar. & Div. 164. 2 Bury’s case, 5 Co. 98; Kenn’s case, 7 Co. 42. [50] cHaP. Iv.] VOID AND VOIDABLE. § 55 -lawful.”1 This is not the place to consider the effect of a sentence of divorce; or to inquire, whether, under any circum- stances, a decree of divorce may be valid while it stands, yet avoided for some imperfection; but, supposing such to be the case in respect of a particular decree, and, while it stands, one of the divorced parties to be married to a third person, plainly this marriage is a voidable one merely, like the one considered in Bury’s case. § 55. A statute also—clearly a civil impediment — may so operate as to cause the marriage to be voidable, in dis- tinction from void. Thus a New York statute? the language of which in substance is, that a second marriage, contracted in good faith when the former husband or wife has absented him-- self or herself for the space of five successive years without being known to the other party to be living during that period, shall be voidable merely, and shall only be considered as void from the time when its nullity shall be decreed by a court of competent authority, —is construed to make a second mar- riage, entered into under the circumstances thus pointed out, valid in law until dissolved. The absent husband or wife, re- turning, cannot rely on the cohabitation had under this second matriage, as being adultery, authorizing a- dissolution of the first, unless indeed it is continued after this second marriage is made void by judicial sentence; and, until such sentence, the parties to it are justified in their cohabitation ; nor, till 1 Gibs. Cod. 446; 2 Burn Ee. Law, Phillim. Ed. 501; Morris v. Webber, 2. Leon. 169. “If the parties should be divorced,” on the ground of impo- tence, “ and both should have children by the second marriage, these second’ marriages must be by law set aside, and the first marriage declared valid; for, when the church appears to have been deceived, the sentence must be revoked.” Welde v. Welde, 2 Lee, 580, 586. But see the observations of Sir John Nicholl, in Norton v. Seton, 3 Phillim. 147, 1 Eng. Ec. 384, 388, . where he says, “ What a state to place the partiesin! This is something: * in the text law which I cannot readily assent to belong to the law of Eng- land.” And see post, § 647-653, 700-708, where we discuss the effect of the sentence of divorce or nullity. Also Allen v. MacLellan, 2 Jones, Pa. 328. 29R.S. 139, § 6. [61 J § 56 MARRIAGE. [BOOK IL. then, is cohabitation under the first marriage permissible.? But the reader will observe, that the sentence annulling this second marriage differs materially in effect from a sentence annulling a marriage voidable for canonical defect; because it renders void the marriage only from the time it is pro- nounced void, while the sentence for canonical defect renders it void from the beginning. In like manner, the Irish statute of 9 Geo. 2, c. 11, provides, “that any marriage of a person under twenty-one years, without the consent of the father or guardians, shall be void; but, if no suit be commenced within one year after the marriage, it shall be good.” And this statute creates a peculiar kind of voidable marriage.” § 56. The remaining impediments are likewise civil; “such as prior marriage, want of age, idiocy, and the like ;”* and they are said to render the marriage void, not voidablet These impediments will also be particularly considered in their order. But though they are thus said to render the mar- riage void, they do not all render it strictly so, but some of them make it void only as contrasted with the peculiar kind of voidable considered in this chapter, while in another sense it is voidable. Thus we shall have occasion to see,® that “ want of age,” on account of which the union becomes what is termed an “inchoate marriage,” produces substantially the same effect as a canonical disability; the chief difference being, that in the one case the act of the parties alone is sufficient to undo the bond, while in the other the courts must interpose. And, in cases of fraud and the like, where there is truly a want of consent, while the forms of solemni- zation have been had, — though the marriage is a nullity, as ? Valleau v. Valleau, 6 Paige, 207. 2 Rex v. Jacobs, 1 Moody, 140; Rex v. Roirdan, Car. Crim. Law, 3d ed. 255. ® Sir John Nicholl, in Elliott v. Gurr, 2 Phillim. 16, 1 Eng. Ec. 166. * Ante, § 46. 5 Post, c. 5-11, 13. ® Post, § 199. [52] CHAP. Iv.] VOID AND VOIDABLE. § 58 much as a deed not delivered, until*the consent is given, — yet if the consent is given after the ceremony is performed, it probably need not be repeated. § 57. The doctrine seems to require no qualification, that a voidable marriage is, until the act or sentence transpires which renders it void, as good, to every intent, as if it contained no infirmity. Thus the children are legitimate, the husband is entitled to administer on the estate of the deceased wife,? the wife surviving him is entitled to dower,? an indictment for polygamy may be maintained if a second marriage is had,‘ husband and wife may levy a fine,® and so of all the other consequences of marriage. It is however held in the ecclesiastical courts of England, that a defendant in a suit for divorce may plead the voidability of the marriage by reason of a canonical defect;® but this is owing to the method of procedure in those courts, whereby this party is permitted, by his responsive allegation, to make himself substantially a plaintiff, in a manner somewhat corresponding to a cross action at the common law. If he does not thus plead the voidability of the marriage, the judgment in the divorce suit, it seems, affirms the marriage, and it cannot be avoided aftey- ward.’ § 58. Where the parties to a voidable marriage transfer their domicil to another State or country, the marriage is good in the new locality, at least until set aside. Thus a man in England having married his mother’s sister, in 1834, before 1 2 Burn Ec. Law, Phillim. ed. 450, tit. Marriage; Bury’s case, 5 Co. 98. * Elliott v. Gurr, 2 Phillim. 16, 1 Eng. Ec. 166. ® Rennington v. Cole, Noy, 29; 1 Bl. Com. 434 and note. * The State v. Moore, 3 West. Law Jour. 134; Rex v. Jacobs, 1 Moody, 140; 1 East P. C. 466; Reg. v. Burke, 3 Crawf. & Dix C. C. 96. . Sabell’s case, 2 Dy. 1 78. ® Guest v. Shipley, 2 Hag. Con. 321, 4 Eng. Ec. 548; Rogers Ec. Law, 361. See Anonymous, Deane & Swabey, 295. ‘ * Guest v. Shipley, supra. And see Williams v. Dormer, 16 Jur. 366, 9 Eng. L. & Eq. 598; post, § 710. 5* [53] § 60 MARRIAGE. [BOOK II. Stat. 5 & 6 Will. 4, c. 54, rendered such a marriage void, removed to Massachusetts, the statute of which State declares this kind of matrimonial connection to be void; and the Mas- sachusetts court, not deterred by the Massachusetts statute, held this particular marriage to be good, on the well-known principle, that marriages valid by the law of the country where celebrated are valid everywhere. But Hubbard, J., who delivered the opinion, remarked: “ There is an exception to this principle, in those cases where the marriage is con- sidered as incestuous by the law of Christianity, and as against natural law. And these exceptions relate 10 mar- riages in the direct lineal line of consanguinity, and to those contracted between brothers and sisters; and the exceptions rest on the ground, that such marriages are against the laws of God, are immoral, and destructive of the purity and happi- ness of domestic life. But I am not aware, that these excep- tions, by any general consent among writers upon natural law, have been extended further, or embraced other cases prohibited by the Levitical law.”# This matter, however, will be further considered in a subsequent chapter. § 59. The doctrine is a broad one, that, when a voidable marriage is set aside by a decree of nullity, the parties are then considered as having never been married. The children, for example, who were before legitimate, become by force of the decree illegitimate; and the late husband is treated as having never acquired any right to the property of the wife, though the claims of third persons are to some extent pro- tected. But we shall examine this matter more minutely when we come to consider the consequences of a divorce.! § 60. By Stat. 5 & 6 Will. 4, c. 54, a great change was in- ‘troduced into the English law of marriage. That statute 1 Post, § 60. * Sutton v. Warren, 10 Met. 451. And see post, § 130, 181. 3 Post, c. 7. * Post, § 647-653. [54] CHAP. IVv.] VOID AND VOIDABLE. § 61 went into operation on the 31st of August, 1835. It forbid the institution of any new proceeding to annul a marriage, already solemnized, within the prohibited degrees of affinity (not including consanguinity) ; and provided, that all mar- riages afterward solemnized within the prohibited degrees either of consanguinity or affinity should be void! Yet it did not prevent the punishment, by the spiritual courts, of persons who had previously contracted marriage within the degrees of affinity prohibited? In the United States gener- ally, these matters are regulated by statutes. Probably in most of them, marriages within the degrees prohibited are by the statutes void, instead of voidable. § 61. It may not in all cases be palpable, from the words of a statute, whether it is intended to render the marriage it for- bids voidable or void. The common law upon this subject, in all the States governed by that law, is probably the same as it was in England previous to Stat. 5 & 6 Will. 4, c. 5438 1 Burgess v. Burgess, 1 Hag. Con. 392; Reg. v. Chadwick, 12 Jur. 174, 11 Q. B. 1738, 205. * Ray v. Sherwood, 1 Curt. Ec. 193, 202. *In Wightman v. Wightman, 4 Johns. Ch. 343, 347, and 2 Kent Com. 83, Chancellor Kent seems of opinion, that the statute of Henry VIII. (ante, § 49) is not common law in this country ; and that so, in the absence of con- trolling statutory provisions, we fall back upon the law of nature. This view, if entertained by this learned jurist, evidently arose partly from his omitting to consider what was the common Jaw of England previous to the statute. If we do not adopt the statute, clearly we do not fall back. upon the law of nature, but upon the older common law, wherein the prohibitions to marriage were extended much further than under the statute (ante, § 48). Therefore, as the statute was a great remedial measure, plainly there is no room to doubt, that our ancestors brought with them the common law, not as it stood anciently, but as it was modified thereby. But what appears con- clusive of this question is, that the distinction of void and voidable marriages is well established in the United States, recognized by Chancellor Kent him- self (2 Kent Com. 95); and that, as we have seen, it rests entirely on this statute of Henry VIII. At first, I was led by his suggestion to inquire, whether the true doctrine is not, that this statute has never been received here; and that, therefore, the distinction of void and voidable in marriage [55] § 62 MARRIAGE. [Book 1. And the question upon the construction of every statutory provision must necessarily be, whether it was intended to alter the common law. An Ohio enactment having made it ground of divorce “where either of the parties had a former husband or wife living at the time of solemnizing the second marriage ;” the court held, that its effect was, not to make the polygamous marriage voidable, but void In Llinois a provision that males of the age of seventeen, and females of the age of fourteen, might be joined-in marriage if “ not. pro- hibited by the laws of God,” was construed, in a case sup- posed to be prohibited by the laws of God, namely, that of the marriage of a man with the daughter of his sister, to render the marriage voidable only; in consequence of which, it could not be set aside after the death of one of the par- ties.? § 62. In several of the United States, we find a peculiar statutory provision, which, without attempting an accurate history of it, we may mention as having apparently originated in New York.? In Wisconsin, it is in the following words: “ When either of the parties to a marriage, for want of age or understanding shall be incapable of assenting thereta, or when the consent of either party shall have been obtained by force or fraud, and there shall have been no subsequent voluntary cohabitation of the parties, the marriage shall be void from the time its nullity shall be declared by a court of competent authority.”+ ‘We have no judicial expositions of this strange does not exist in this country. But the difficulty is, that for such a scepti- cism there is no foundation in any judicial opinion, or even intimation ; and that it is opposed to some direct decisions, and to the entire current of the judicial atmosphere in this country, relating to this matter. Besides, the above statute falls fully within that general range of English statutes (Wil- bur v. Tobey, 16 Pick. 177, 182; 1 Bishop Crim. Law, §11), which it is well settled belong to the common law of the several United States. 1 Smith v. Smith, 5 Ohio State, 32. ? Bonham v. Badgley, 2 Gilman, 622. ¢ 5 2 Kent Com. 77. * Wisconsin R. S. c. 79, § 2. [56 ] CHAP. Iv.] VOID AND VOIDABLE. § 62 enactment. Does it make people married without their con- sent? If a ruffian robs a woman of her jewelry, he gains thereby no title to it; but if he holds her by the throat while words of marriage are said over her, does he then become le- gally invested with all her personal property? Must she be regarded as his wife, till she brings him into court and proves her want of consent? And even then, does she take his name, and does she recover back her property only if the court rein- vests the title in her? And if she dies before sentence dis- solving the marriage (the sentence not being one of nullity), does her personal estate remain vested in him, to the exclu- sion of those who would otherwise be her legal representa- tives, and is he entitled to take out administration? Perhaps this statute may be construed as merely a reénactment of the common law doctrine, that judicial sentences of nullity of marriage are conclusive upon strangers, as well as parties and privies. 1 This statute was evidently drawn, enacted, and reénacted, without any accurate apprehension, in the minds of those concerned, of the subject to which it relates. Such a thing is not surprising, when we consider the small amount of legal culture which this subject of marriage and divorce has re- ceived, either in the United States or in England, out of the ranks of the practitioners and judges of the ecclesiastical courts. Even Professor Green- leaf, one of our most accomplished law writers, has fallen into the inaccuracy of apparently laying down the rule, that, whenever a marriage is sought to be “invalidated on the ground of want of consent, the subject must have been investigated, and the fact established, in a suit instituted for the pur- pose of annulling the marriage,” or it will be held good. 2 Greenl. Ev. § 464, note. This proposition is plainly unsupported either by reason or au- thority, and especially unsustained by the authorities he cites. We shall have occasion to see, further on, post, § 63, 64, that consent is of the essence of marriage, without which it cannot exist. A government which should compel people into matrimony, without their consent, could not be endured. And though it should grant the right to obtain a divorce on a judicial pro- ceeding instituted for the purpose, that would be but a partial and inade- quate recompense for the wrong. And see 1 Hawk. P. C. 6th ed. p. 172, §9, note; Wells v. Fletcher, 5 Car. & P. 12; Wells v. Fisher, 1 Moody & R. 99. [57] BOOK III. NULLITIES OF MARRIAGE. CHAPTER V. IMPERFECT CONSENT. Srcr. 62a, 625. Introduction. 63-68. The General Doctrine of Consent as Essential to Marriage. 69-71. Forms of Consent in Absence of Statutory and like Direction. 72-88. Concerning Forms of Consent where Consent Wanting. 83 a-89. Further Views of Consent per Verba de Presenti. 90-91a. Consent per Verba de Futuro cum Copula. 92. Consent by Habit and Repute. 98-97 a. Principles governing the Consent per Verba de Futuro cum Copula. 98. Effect of this Impediment of Imperfect Consent. § 62a. In the discussion of the subject of nullities of mar- riage, through the present and some succeeding chapters, we are obliged to follow an order somewhat variant from the path of pure simplicity, which charms wherever it is laid, even among the dull and dry things of scientific disquisition. For although the whole matter of nullities of marriage might be embraced under the one title of Imperfect Consent, and this title might be unfolded in such manner as to present a consid- erable harmony of arrangement, yet thereby we should be re- quired to disregard certain established phrases, and common aspects of the questions arising, the consequence of which would be, that, though we seemed fo be travelling in a course [58 ] CHAP. V.] IMPERFECT CONSENT. § 63 of scientific beauty, we should miss those venerable way- marks which age after age, in its journeyings after the practi- cal, has rendered familiar, and has consecrated as a part of the science itself of this division of our law. Therefore the present chapter embraces, as already indicated,’ only a single division of the field, leaving the rest to be examined in subse- quent chapters. § 625. The matter of the present chapter will be unfolded under the following sub-titles: I. The General Doctrine of Consent as Essential to Marriage; I. Forms of the Consent in the Absence of Statutory and other like Direction; III. Con- cerning the Forms of Consent where the Consent is really Wanting; IV. Further Views of the Consent per Verba de Presenti ; V. Consent per Verba de Futuro cum Copula; VI. Consent by Habit and Repute; VII. Principles governing the Consent per Verba de Futuro cum Copula; VIII. Effect of this Impediment of Imperfect Consent. I, The General Doctrine of Consent as Essential to Marriage. § 63. We have seen, that the law compels no one to assume the matrimonial status? Therefore every marriage requires for its constitution a consent-of the parties, a mutual con- sent; for, as there cannot be a husband without a wife, one of them cannot be married without the other? This mutual consent is in fact a contract, differing not essentially from other contracts.4 It is that, without which the status of mar- riage is never superinduced by any government on the earth. ® Ante, § 42-44. 2 Ante, § 36 a, 42. E ° 1 Fras. Dom. Rel. 149, 184,187, 212; 2 Burn Ec. Law, Phillim. ed. 434; Ayl. Parer. 361; True v. Ranney, 1 Fost. N. H. 52. * Dalrymple v. Dalrymple, 2 Hag. Con. 54, 4 Eng. Ec. 485, 508; Shel- ford Mar. & Div. 6; Ferlat v. Gojon, Hopkins, 478, 493. [59] § 65 NULLITIES OF MARRIAGE. [Boor It. And by the law of nature,! by the canon law previous to the Council of Trent, perhaps by the law of England as it stood before the passage of the first marriage act,? by the law of Scotland, and by the laws of several of the United States, nothing need be added to this simple consent to constitute perfect marriage. § 64. Even where a statute requires the marriage to be attended with specified formalities, in order to its validity, this mutual consent of the parties is no less essential. The forms are not a substitute for it. They are but modes of declaring and substantiating it; having reference to the mat- ter of publicity, or evidence? If they are gone through with, without the added consent, the marriage is a mere nullity, as regards both the parties and third persons.® § 65. The subsequent chapters of the present book will furnish illustrations of marriage invalid, though prescribed forms have been complied with, by reason of insanity and the like ; but, where no specific forms enter into the question as a sort of estoppel to parties denying their consent,’ being the matter chiefly to be considered in the present chapter, the doctrine is very barren of illustrations in the English and 1 Lindo v. Belisario, 1 Hag. Con. 216, 4 Eng. Ec. 367, 374; Dumaresly v. Fishly, 3 A. K. Marshall, 368; 2 Kent Com. 86. 2 Dalrymple v. Dalrymple, supra; Reg. v. Millis, 10 Cl. & F. 534; Hallett v. Collins, 10 How. U. 8. 174; Patton v. Philadelphia, 1 La. Ann. 98; Suc- cession of Prevost, 4 La. Ann. 347, 349. 3 Commonly called Lord Hardwicke’s Act, 26 Geo. 2, c. 33, A. D. 1753. But of this see post, c. 8. * Dalrymple v. Dalrymple, supra; 1 Fras. Dom. Rel. 124; Wright v. Wright, 15 Scotch Sess. Cas. 767. 5 Shelford Mar. &. Div. 5, 6. ® Mount Holly v. Andover, 11 Vt. 226; Ferlat v. Gojon, supra; Respub- lica v. Hevice, 3 Wheeler Crim. Cas. 505. And see ante, § 46, 55, 62; post, § 72-83, 98. * Dalrymple v. Dalrymple, 2 Hag. Con. 54, 4 Eng. Ec. 485, 5093 post, § 72-83. [60 ] : CHAP. v.J IMPERFECT CONSENT. § 66 American books. The reason of this barrenness is, that mar-~ riages in England are not now valid except when the forms are added, that the same is true also in a part of the States of this Union, and that everywhere in this country the forms are so common as to cause marriages without them to be exceedingly rare. We shall be obliged, therefore, in the dis- cussion of the present chapter, to draw our learning mainly from the fountains of Scotch law. In Scotland, informal matriages have always been common; and in them the ques- tion of consent is usually the only one which can be raised, touching their validity. Wherefore the Scotch judicial records contain numerous decisions relating to this doctrine; and, as the doctrine appears to be identical there and here, our illus- trations from the Scotch books will be pertinent. And in considering the matter we shall assume, that the parties are capable of consenting, and act voluntarily, leaving the ques- tions of fraud, insanity, and the like, to be discussed in subse- quent chapters, according to the plan already indicated. § 66. The consent essential to marriage must contemplate a present assumption of the status, in distinction from a mere future union.2 The agreement of future marriage is termed espousals de futuro, or a contract per verba de futuro; while. the agreement which superinduces the status is termed espou- sals de presenti, or a contract per verba de presenti. Swin- burne illustrates the one as occurring where the man says to the woman, “I will take thee to my wife,” and she answers, “J will take thee to my husband;” the other, where the man says to the woman, “I do take thee to my wife,” and she replies, “I do take thee to my husband.”? ‘When, as further on will appear, a contract of future marriage exists, and the parties have sexual intercourse, the law usually presumes the intercourse lawful; the parties having changed. their future 1 Ante, § 42-44. 2 1 Fras. Dom. Rel. 149. 3 Swinb. Spousals, 8, 55, 74, § 8, 10,11; 2 Burn Ec. Law, Phillim. ed.. 455 ¢; Brown v. Brown, 13 Jur. 370. 6 [61] § 68 NULLITIES OF MARRIAGE. [BooK III. into a present consent. Hence it is said, that marriage may be contracted per verba de presenti merely, or per verba de Juturo cum copulat § 67. But the copula is-no part of the marriage; it only serves, to some extent, as evidence of marriage. A maxim of the civil law, equally also of the ecclesiastical, of the com- mon, indeed of all law, is, Concensus, non concubitus, facit matrimonium® ¥ferige when parties, eapable of intermarty- ing, agree to present marriage, the matrimonial relation is made thereby complete, and what is sometimes called the consummation, adds nothing to it. This is true everywhere ; subject to the qualification, that in some countries there are statutes requiring the addition of specified ceremonies and forms; but the copula gives the marriage no additional strength. § 68. The consent necessary is an agreement to marry ;- that is, an agreement to assume the matrimonial status; in distinction from a mere mutual promise to indulge in unlaw- ful sexual intercourse. “A marriage,” says Lord Stowell, “is not every casual commerce; nor would it be so even in the law of nature. A mere carnal commerce, without the intention of cohabitation and bringing up of children, would not constitute marriage under any supposition. But when two persons agree to have that commerce for the procreation and bringing up of children, and for such lasting cohabita- * Lord Cottenham, in Stewart v. Menzies, 2 Rob. Ap. Cas. 547, 591; post, § 90. ° Dumaresly v. Fishly, 3 A. K. Marshall, 368, 872; Jackson v. Winne, 7 Wend. 47. ’ Dalrymple v. Dalrymple, 2 Hag. Con. 54, 4 Eng. Ec. 485, 489; Shelford Mar. & Div. 5-7. ‘ Lindo v. Belisario, 1 Hag. Con. 216, 4 Eng. Ec. 367, 374; Patrick v. Patrick, 3 Phillim. 496; Jackson v. Winne, 7 Wend. 47; Dumaresly v. Fishly, 8 A. K. Marshall, 368 ; Walton v. Rider, 1 Lee, 16, 5 Eng. Ec. 289 ; Potier v. Barclay, 15 Ala. 439; Graham’s case, 2 Lewin, 97; The State v. Patterson, 2 Ired. 346. [ 62 ] CHAP. V.] IMPERFECT CONSENT. § 69 tion, — that, in a state of nature, would be a marriage, and, in the absence of all civil and religious institutions, might safely be presumed to be, as it is popularly called, a marriage in the sight of God.”1 Under civil institutions, an agreement of marriage is an undertaking to live in the matrimonial relation, as understood and defined by the laws of the coun- try. Thus a written instrument between a man and a woman, by which they mutually promise to live together as husband and wife as long as they can agree, does not consti- tute marriage.” Il. Forms of the Consent in the Absence of Statutory and other like Direction. § 69. In a chapter further on® will be considered the ques- tion, whether, under the common law, and in States where the statute forms are not expressly declared to be exclusive of all others, any thing more, or what more, than the consent treat- ed of in this chapter is required. But, aside from any doc- trine there to be mentioned, no particular form for expressing the consent is necessary. Nothing more is needed than that, in clear and unambiguous language, or in any other mode declaratory of intention, the parties accept of each other as husband and wife And Swinburne lays down the doctrine, that, if the words do not of their natural meaning or by com- mon use “conclude matrimony,” yet, if the parties ingend marriage, and their intent sufficiently appears, “they are in- separable man and wife, not only before God, but also before men.”5 'The consent may be either verbal® or written; the 1 Lindo v. Belisario, 1 Hag. Con. 216, 4 Eng. Ee. 367, 374. 2 Randall’s case, 5 N. Y. City Hall Recorder, 141, 132. ® Post, c. 8. : 4 1 Fras. Dom. Rel. 145. 5 Swinb. Spousals, 87.. ° 1 Fras. Dom. Rel. 145. [63 ] § 70 NULLITIES OF MARRIAGE. [BooK IIL. question in Scotland has most frequently risen where it was in writing! The simplest form of writing is sufficient? §'70. Consent by Interchange of Letters. There seems to be no good reason why an agreement of marriage in presenti, like the agreement of marriage in futuro, or any other con- tract, may not be made by interchange of letters through the post-office. Fraser admits, that many among the canonist commentators hold this to be so; according to whom, there- fore, a perfect marriage may be contracted without the parties seeing each other, and without consummation. But he con- siders the weight of Scotch authority to be the other way. He cites Mr. Clerk, in the case of Dalrymple, who deposed, that, “supposing a marriage should be constituted without either ceremony or consummation, and by mere verbal expres- sions of consent, yet, if the words are not used, eo intuitu, of making and constituting a marriage de presenti, they are in- effectual; and the same is the case if the other party does not join in expressing the consent to marriage de presenti. The consent on both sides ought to be unequivocally expressed, and at the same time.”*® Also, “if a man were to write such declarations as those referred to, and were to send them to a woman in a post letter, this would not constitute a marriage, though it would afford evidence that a marriage had antece- dently been constituted.” 4 11 Fras. Dom. Rel. 147. * Ib. The following (ib. p. 148) not very learned production is a speci- men of the Gretna Green marriages : — “ Gritnay Green, June 10th, 1786. “This is to sertfay to all persons, that may be scurned, that Charles Blount, from Salisburey, and Elisbith Ann Wyiche, from the same plese, both comes before me, and declares themselves to be both single persons, and is now mareyed by the way of thee Church of Scotland, as day and det abuve mentioned by me. Davip M‘Farson. C. B. Biount. Euizta. Ann WYcHE.” 3 2 Hag. Con. App. 109. * 2 Hag. Con. App. 108; 1 Fras. Dom. Rel. 155, 156. [64] CHAP. V.] IMPERFECT CONSENT. §7la § 71. We cannot fail however to notice, that the case put by Mr. Clerk is one merely of a proposition made by a party, and not accepted by the other party; which, according to common principles, would not amount to a mutual consent, or a contract. But where a man sends te a woman a propo- sal of marriage in presenti ; and, not withdrawing it, receives her answer accepting it; there is a concurrent consent, at the same instant, of the two minds, to the same thing. And Lord Henderland, a Scotch judge, in a manuscript case cited also by Fraser, seems to take ground even a step in advance of this. The letters, he said, “did not indeed contain any express declaration of marriage; but they could not, in com- mon sense, be attributed to any purpose but that of intending a marriage, and what difference made it whether a person wrote, ‘I am your husband,’ or signed ‘your husband,’ at the bottom of the letter. The cases of Armot, Loup, McCarter, Miss Murray, were all cases of marriage so made. It signi- fied nothing that there was no writing on her side; for her course of acceptance of his letters would bind her.” Let- ters may be, in Mr. Fraser’s opinion, important evidence of marriage; and he tells us, that, in a number of cases, marri- ages have been declared chiefly on their authority. By Swin- burne the doctrine is broadly laid down, that this relation may be entered into by letter# This, therefore, we should receive as the better common law doctrine; and we may even doubt, whether Mr. Fraser is correct in his view of the law of Scotland. § 71a. Plainly, however, in order for marriage by letter to be good, no impediment must exist in the locality where either of the parties is, to constituting matrimony in this way. If 1 Inglis v. Robertson, 1 Fras. Dom. Rel. 157, A. p. 1786. The case in which these observations occurred, however, was one wherein copula had actually taken place; and so the letters might be regarded rather as evi- dencing, than constituting, the marriage.‘ 2 1 Fras. Dom. Rel. 155, 158. ® Swinb. Spousals, 162, 181, 183. 6* [65] § 72 NULLITIES OF MARRIAGE. [Book IIL. one of them is in a country in which marriage is good only when formally solemnized, and the other is in a country in which it is good entered into by letter, the courts of neither country can hold the marriage sufficient, where only letters pass. Obviously the courts of the country in which such mar- riages are not deemed good cannot; but the fact, that they cannot, shows also that the courts of the other country can- not. Because, since the laws of no country can operate to change the status of a person not in it, if the tribunals of the country allowing marriage by letter should undertake to pronounce the person within their jurisdiction married, their judgment could not have this effect; inasmuch as, in the na- ture of the marriage relation, no man can be a husband unless he has a wife; no woman a wife, unless she has a husband. Therefore in a Scotch case, the man being in France, where informal marriages are not valid; and the woman in Scotland, where they are valid; the court denied that letters could make them husband and wife. And the Lord President observed : “J can find no authority in support of the possibility of a marriage, where one of the parties is in this country and the other is out of it”! This view does not militate against the general ability to marry by letter. III. Concerning the Forms of Consent where the Consent is really Wanting. § 72. The question hasbeen considerably agitated before the tribunals of Scotland, and before the House of Lords, to which some of the cases have been taken by appeal, to what extent parties who use words expressive of consent are bound by them, when they do not in fact intend matrimony. Mr. Fraser has extracted the rule from the adjudications, laying it down in the following terms: “ Although the parties may * Sassen v. Campbell, 3 Scotch Sess. Cas. new ed. 108, 2 Wilson & Shaw, 309. [ 66 ] CHAP. V.] IMPERFECT CONSENT. § 73 have exchanged, in words, the most unequivocal consent, there would be no marriage, at least if it be clandestine, if it be proved that they intended something different, only went through the proceeding as a jest, or intended it merely as a blind or cover for some private purpose of their own, and gave, in short, consent in form but not in fact. Simulate nuptie nullius momenti sunt.”+ 'The doctrine, otherwise ex- pressed, appears to be, that, in this matter of marriage, con-’ sent is so essential as to leave the forms of marriage into which it does ndt enter as a thing of fact, mere unfinished and imperfect caskets, to which the law declines intrust- ing its jewel matrimony. It will not, in still other words, im- pose a consent upon parties in whose minds it does not exist in reality, though they have gone through with a form of con- senting. There may be some qualification of this doctrine recognized in the law; so we shall see how the matter stands on the adjudications. § 73. In the Scotch case of M’Innes v. More, after copula and pregnancy following, the man addressed to the woman a letter in these words: “I hereby acknowledge that you are my lawful wife; and you may, from this date, use my name, though, for particular reasons, I wish our marriage kept private for some time.” She raised a declarator of marriage against him, offering in evidence only this letter, and his judicial examination elicited in the case, wherein he denied the- alleged matrimonial consent, and explained the letter as having been given upon her importunity, simply to enable her to obtain admission to the house of a relative for lying- in purposes. The commissaries and the Court of Session held the parties married; but the House of Lords reversed the decision, on the ground, that, the matter standing on the letter and his judicial examination taken together, the letter, explained by the examination, appeared neither to have been - 11 Fras. Dom. Rel. 213. And see Browne v. Burns, 5 Scotch Sess. Cas. N. S. 1288. [67] §.74 NULLITIES OF MARRIAGE. [BOOK III. given by him nor accepted by her, nor understood by either, “as a declaration of the truth, but merely as a color to serve another and a different purpose, which had been mutually concocted between them, the other circumstances of the case concurring to prove the same thing.” ? § 74, In the Scotch case also of Taylor v. Kello, a farmer’s daughter of considerable fortune for her rank had received the address of a person of equal rank, but reduced to bank- ruptey by his own extravagance, and therefore unacceptable to her relations. He drew the following writing, which she, copying, delivered to him, and took from him another in corresponding terms: “ I hereby solemnly declare you, Patrick Taylor, of Birkenshaw, my just and lawful husband, and remain your affectionate wife, Agnes Kello.” Her judicial declaration afterward given was, that she did not consider this a final agreement, and that the man was not to use it without her consent. There was no evidence that concu- bitus had either followed or preceded this transaction, and he mentioned it to none of his friends. On the matter being discovered, the lady’s mother requested him to surrender the writing, but he refused. During the next year, he continued his visits at the house of the lady; and at length proclama- tion of banns was consented to, and twice made; but, before the third time, it was stopped by her or her relatives. During the next two years, their meetings became infrequent; and, in the two years still following, they ceased. At the end of these five years from the time of the interchange of the writing, on the woman being about to be married to another man, he instituted his action of declarator of marriage. The commissaries affirmed the marriage; the Court of Session sustained their judgment; but the House of Lords overruled it, as in the last case, and for substantially the same reason. 1 McInnes v. More, Ferg. Consist. Law, Rep. 33, 1 Fras. Dom. Rel. 213 ; 8. C.in Dalrymple v. Dalrymple, 2 Hag. Con. 54, 101, 4 Eng. Ec. 485, 506. For similar facts, and the same result, see Grant v. Mennons, Ferg. Consist. Law, App. 110. [ 68] ' CHAP. V.] IMPERFECT CONSENT. § 75a They held, “that the two letters insisted upon in this process, signed by the parties respectively, and mutually exchanged, were not intended by either, or understood by the other, as a final agreement; nor was it intended or understood, that they had thereby contracted the state of matrimony, or the rela- tion of husband and wife, from the date thereof; on the contrary, it was expressly agreed that the same should be delivered up, if, the purpose they were calculated to serve proving unattainable, such delivery should be demanded; which last-mentioned agreement is further proved by the whole and uniform subsequent conduct of both parties.” 4 § 75. So where the man, in a letter of attorney to the woman, acknowledged and declared her to be his wife; this not being done, as it appeared in evidence, with the intention on the part of either to enter into marriage, but to enable her the better to carry out the objects of the letter; the transac- tion was held not to constitute marriage. In like manner, where the written acknowledgment which the man made to the woman of her being his wife, was intended merely as a device to deceive others, and so enable him to avoid forming a matrimonial connection to which he objected with another woman, what was done was held not sufficient to render the parties married. § 75a. And whatever difficulties may have attended the question in Scotland formerly, the doctrine has latterly been strongly maintained in the Scotch courts, and it is undoubt- edly established in them, that, though the words employed distinctly import marriage, and even though they were so understood by one of the parties, yet, if the other party did not intend matrimony, and no copula followed, they will not operate in law to constitute marriage. “The ruling prin- ‘lt Taylor v. Kello, 1 Fras. Dom. Rel. 214; reversed A.D. 1787. Also in - Dalrymple v. Dalrymple, 2 Hag. Con. 54, 94, 4 Eng. Ec. 485, 503. ? Campbell v. Sassen, 2 Wilson & Shaw, 309. ® Stewart v. Menzies, 2 Rob. Ap. Cas. 547; 1 Fras. Dom. Rel. 215. [69] § 76 NULLITIES OF MARRIAGE. [Book In. ciple,” said the Lord Justice-Clerk, “as to the constitution of marriage, is, that it is a mutual contract — a consensual contract—to the formation of which the consent of both parties must be really, deliberately, definitively, and irre- vocably given. . . . It would be, indeed, a most extraordinary practical view of the consensual contract of marriage to hold, that, in respect. of the mere words of writings, not followed by any of the consequences of marriage, the parties were really and irrevocably married, although it should be proved, beyond the reach of cavil, that the consent of the lady to real marriage was not given by the words of the writing, and that she did not intend to consent to be married, and never so understood the paper she signed. That would be an extra- | ordinary result.”! And in a case of non-consummation also, the further doctrine has been laid down, that the intent to marry in such a case must be shown by evidence beyond the writing, however clear its words in themselves are. § 76. But the doctrine may not be the same applied to mar- riage regularly celebrated, according to forms prescribed by law, as applied to these irregular marriages, entered into by informal writings. And especially, whether the marriage is formal or informal, the doctrine as applied after what is called the consummation has taken place may be different; for, in the latter circumstances, one who has consented to whatever is signified by the forms, cannot say he did not mean mar- riage by these things. In a case of informal writings, no ob- jection on general principles can arise to permitting evidence to be introduced explaining whether they were intended by the parties to take effect at all as a contract;? and only this was done in the Scotch cases before mentioned.4 Yet there 1 Lockyer v. Sinclair, 8 Scotch Sess. Cas. N. 5. 582. And see Campbell v. Sassen, 2 Wilson & Shaw, 309, 319. ® Lockyer v. Sinclair, supra. ® Armstrong v. M’Ghee, Addison, 261; 1 Greenl. Ev. § 284. * In Stewart v. Menzies, 2 Rob. Ap. Cas. 547, 592, Lord Cottenham ob- served: “ The cases of Kennedy v. Campbell, in 3 Wilson & Shaw, 135, [70] CHAP. V.] IMPERFECT CONSENT. § 77 are general principles of law which often estop parties to deny the conclusion the law draws from their acts, And perhaps under some circumstances matrimonial forms may be followed by the consequence of estopping the parties to deny an attendant matrimonial consent. §'77. On this point, some remarks of Lord Stowell in the Dalrymple case are too important to be overlooked; while yet it should be observed, that they have been in part disapproved ‘of in Scotland Speaking of the matrimonial consent under the Scotch law, he says: “It is said that it must be serious ; so surely must be all contracts ; they must not be the sport of an idle hour, mere matters of pleasantry and badinage, never intended by the parties to have any serious effect whatever ; at the same time it is to be presumed, that serious expressions, applied to contracts of so serious a nature as the disposal of a man or woman for life, have a serious import. It is not to be presumed, a priori, that a man is sporting with such dan- gerous playthings as marriage engagements. Again, it is said, that the animus contrahentium must be regarded. Is that pe- culiar to the marriage contract? It is in the intention of the parties that the substance of every species of contract sub- sists, and what is beyond or adverse to their intent does not belong to the contract. But then that intention is ta be col- lected (primarily at least) from the words in which it was ex- pressed ; and in some systems of law, as in our own, it is note; McInnes v. Moir, Ferg. Consist. Law, App. 125, 128; Taylor v. Kello, Mor. 12687; Grant v. Mennons, Ferg. Consist. Law, App. 110, and many other cases, prove, what indeed required no such proof, that, to constitute a contract of marriage, there must be contracting parties, and that the expres- sions used, though of themselves sufficient words of contract, are of no avail if not intended by the parties to have that effect, but are used for some col- lateral purpose. This in no respect infringes upon the principle of not con- struing a written contract by extrinsic evidence of intention; the question being, not what the written contract imports, but whether it is to be treated as a contract at all.” ? Lockyer v. Sinclair, 8 Scotch Sess. Cas. n. s. 582, disapproving the doc- trine of the concluding part of the next section. -[71] § 78 NULLITIES OF MARRIAGE. [Book II. pretty exclusively so to be collected. You are not to travel out of the intention expressed by the words, to substitute an intention totally different, and possibly inconsistent with the words. By the matrimonial law of Scotland, a latitude is allowed, which to us (if we had any right to exercise a judg- ment of the institutions of other countries with which they are well satisfied) might appear somewhat hazardous, of sub- stituting another serious intention than that which the words express, to be proved by evidence extrinsic, and totally, as we phrase it, dehors the instrument. This latitude is indulged in- Scotland to a very great degree indeed, according to Mr. Erskine. In all other countries, a solemn marriage in facie Ecclesia facit fidem; the parties are concluded to mean seri- ously, and deliberately, and intentionally, what they have avowed in the presence of God and man, under all the sanc- tions of religion and of law; not so in Scotland, where all this may pass, as Mr. Erskine relates, and yet the parties are at liberty to show, that, by virtue of a private understanding between themselves, all this is a mere imposition and mockery, without being entitled to any effect whatever. § 78. “But,” continues the learned judge, “be the law so, still it lies upon the party who impeaches the intention ex- pressed by the words, to answer two demands, which the law, I conceive, must be presumed to make upon him: first, he must assign and prove some other intention; and, secondly, he must also prove that the intention so alleged by him was fully understood by the other party to the contract at the time it was entered into. For surely it cannot be represented as the law of any civilized country, that in such a transaction a man shall use serious words, expressive of serious intentions, and shall yet be afterwards at liberty to aver a private inten- tion, reserved in his own breast, to avoid a contract which was differently understood by the party with whom he con- tracted. I presume, therefore, that what is said by Mr. Cragie can have no such meaning, ‘that if there is reason to conclude, from the expressions used, that both or either of the parties did not understand that they were truly man and wife, it [72] CHAP. V.] IMPERFECT CONSENT. § 79 would enter into the question, whether married or not, be- cause this would open a door to frauds, which the justice, and humanity, and policy of all law must be anxious to keep shut.” 1 . § 79. What is said by Mr. Erskine, to which probably Lord Stowell refers in the foregoing extract, is in the following words: “ As marriage in facie Ecclesia, by the law of Scot- land, is neither a sacrament nor a necessary ceremony to con- stitute the matrimonial union; cases might occur where a marriage by a clergyman might be insufficient, from its being proved that anterior to the celebration the parties had inter- changed written declarations that the ceremony was to be ef- fected for a totally different purpose, and should not be bind- ing upon either of them. But the respondent conceives, that to take off the effect of a written consent de presenti, or a promise of marriage followed by a copula, will require the most clear and decisive facts applicable to both the parties, sufficient to show that the written declaration or promise was given for a purpose differént from that of contracting marri- age, and a proof of those facts by the most unquestionable evidence.”? Professor More, in his Notes on Stair, lays down the proposition, that “the most formal acknowledgment of marriage, even though made in facie Ecclesia, will be of no avail, if it shall appear that such was not the true intention of the parties.”> But Mr. Fraser has shown, that none of the cases referred to by him support this proposition, as to marri- age in facie Ecclesi@; and that, though this question has been mooted, and opposite opinions have been expressed upon it, by Scotch lawyers, yet it remains undecided in Scotland. 1 Dalrymple v. Dalrymple, 2 Hag. Con. 54, 105, 4 Eng. Ec. 485, 508, 509. And see Cunninghams y. Cunninghams, 2 Dow, 482, 485; Lords Brougham and Campbell in Hamilton v. Hamilton, 9 Cl. & F. 327, 348, 352; Swinb. Spousals, 84, 87. ? 2 Hag. Con. App. 26. 3 More’s Notes, p. xiv. 4 1 Fras. Dom. Rel. 217-221. 7 [73] § 81 NULLITIES OF MARRIAGE. [BOOK III. § 80. We have already seen, that, as concerns informal marriages entered into by mere word, written or oral, the doc- trine established in the Scotch courts has strong support in the ordinary doctrines of our common law as applied to other things. We must therefore understand the foregoing obser- vations of Lord Stowell to be, in spite of his great name, slightly inaccurate. And we are not to presume, that the House of Lords, in deciding the before-mentioned Scotch cases of McInness v. More, and of Taylor v. Kello? though proceeding according to Scotch law, supposed themselves to be overruling the decisions of the highest tribunal of Scotland by the introduction of a principle foreign to the law of Eng- land. Consequently we may conclude no difference to exist between the English and Scotch doctrine on this subject, other than is created by the English marriage acts, all adopted since the settlement of this country ; the result of which is, that the law with us; in States where no change has been wrought by legislation, is the same as established in Scotland. Still we must remember, that the doctrine refers merely to informal marriages. § 81. Obviously where there has been a public celebration of marriage, especially in a form prescribed by statute, the cases must be rare in which an intent other than matrimonial could, as a question of fact, be established. And, as already intimated,‘ if sexual intercourse had followed such celebration, principles of public policy would seem to forbid either or both of the parties to show, that the real matrimonial consent had not passed. The point moreover has: been stated thus: on the one hand it is said, that “there are others concerned in the marriage besides the parties themselves. It produces a new status of the parties in society, the creation and nature of which is jwris publict. And if the requisites to create this 1 Ante, § 76. 2 Ante, § 78, 74. 5 Warrender v. Warrender, 2 Cl. & F. 488, 561, 567. * Ante, § 76. [74] CHAP. V.] IMPERFECT CONSENT. § 82 status have once occurred, the relations consequent on it im- mediately take place, whatever latent purposes one or both of the parties have entertained.”} On the other hand it is urged, and on this reasoning the decisions above cited proceed, that, admitting the evils of the parties’ imposture, the proper rem- edy is not to repay imposture by fiction, and to enforce a con- sensual contract against those who have not consented; that the imposture, though profligate and pernicious, is of the same description with many other things for which the law provides no remedy, as where a man imposes his bastard on society as his lawful child? And certainly it would be a marked exception to general rules, to compel persons to assume the status of marriage, and the civil relations of hus- band and wife, against their will, as a punishment either for trifling with the forms of matrimony, or for any other blame- worthy conduct. At the same time, there must be a’point here beyond which inquiry and trifling cannot go. § 82. It is remarkable that this question has received very little judicial elucidation in this country. Among the follies with which people are sometimes chargeable, are mock mar- riages. Now, if two persons, after going through with a suffi- cient ceremony, are therefore married, though neither of them intended to be, no subsequent mutual concurrence can undo the bond; and, if they afterward intermarry with other per- sons, they are in law polygamists, and their children are ille- gitimate. And certainly the occurrence would be a novel one, for a gray-haired parent to find himself indicted on the charge of polygamy, and his issue in danger of being declared bastards, because it had been ascertained that his wife, when a girl of twelve years, had participated in the sport of a mock marriage with a boy of fourteen. But while all must agree, that, in these cases in which neither the parties nor the spec- tators understand a marriage in fact to be intended, and ? Lord Meadowbank, Ferg. Consist. Law, App. 124. 2 1 Fras. Dom. Rel. 620. 3 And see Peat’s case, 2 Lewin, 288. [75] § 83 NULLITIES OF MARRIAGE, [BOOK III. cohabitation does not follow, the mere form idly pronounced does not make marriage, still the result may be different under many circumstances, in which there is a secret intent in one or both of the parties not to be bound by the ceremony. The law under extremes in circumstances may be plain to com- mon apprehension, but what lies between the extremes must be left to be determined by future adjudication. § 83. The following case came not long ago before the Vice-Chancellor of New York: A young man, twenty-three years of age, paid his addresses to a girl of sixteen, and the two became mutually attached. Her parents, to withdraw her from his attentions, were about having her remove away, when he, fearing he should lose her, induced her to go with him to a clergyman’s house and be married ; which was done, with the concurrent understanding that the ceremony should not be considered binding as a marriage, but only as render- ing their engagement of future marriage with each other stronger. On their way to the clergyman’s house he asserted, that the marriage should be mere form; that they should not be esteemed husband and wife for two years; neither should they, until the parents’ consent had been obtained, and the ceremony performed anew. There was no consummation, and a day or two afterward the girl told her parents of her imprudence. Opposition arose on their part; then she lost her affection for him; and -he claimed, that this was a lawful marriage. Suit was brought on her behalf to have it declared null; and a decree was entered accordingly. This case con- tains some of the elements of fraud, a subject to be consid- ered in our next chapter; but there is no apparent difference, whether he intended, at the time the ceremony was per- formed, to rely upon it afterward as a marriage, or whether the intent to do so was an after-thought. 1 Robertson v. Cowdry, 2 West. Law Jour. 191, 1 S. W. Law Jour. 167. And see Mount Holly v. Andover, 11 Vt. 226; Clark v. Field, 13 Vt. 460 ; Barnes v. Wyethe, 2 Wms. Vt. 41. Le] CHAP. v.] IMPERFECT CONSENT. § 85 IV. Further Views of the Consent per Verba de Presenti. § 83a. In the discussion of this question of consent, we are led to inquire how the doctrine has been divided by those who have gone before. And we learn, that three forms of consent are spoken of in the books; namely, consent per verba de presenti, consent per verba de futuro cum copula, and con- sent by habit and repute. But strictly and philosophically the ‘last two are only special manifestations of the first one; and accordingly our discussion thus far in this chapter has pro- ceeded on the idea of the consent being a unit, and expressed by words of present promise. Let us consider it in this form a little further before we look at its other forms. § 84. We have already seen, that, to constitute marriage, the consent of the parties must be mutual, and given at the same instant. But a distinction exists between the consent itself, and the surrounding indications or proofs of it.1 There- fore when a man, while cohabiting with a woman who had borne him children, wrote, with her knowledge, and com- mitted to his agent under an injunction of secrecy, a letter declaring her to be his wife; and subsequently on his death- bed spoke to her of the letter; it was held, that his agent might be considered as her agent also, and that, under all the circumstances of the case, the cohabitation continuing for years after the letter was written, a mutual consent might be inferred.2, Though the woman did not join the husband in an express written or oral agreement, such an agreement was presumed from the circumstances.® § 85. In the case just mentioned, the facts were open to 1 See Honyman v. Campbell, 5 Wilson & Shaw, 92. * Hamilton v. Hamilton, 1 Bell Ap. Cas. 736, 9 Cl. & F. 327; 1 Fras. Dom. Rel. 150. 3 See Hutton v. Mansell, Holt, 458. 7* [77] » § 85 NULLITIES OF MARRIAGE. , [Boox III. inference; but, where they are not, the consent of both the parties must be clear and direct. This point is illustrated in a Pennsylvania case, as seen in the following extract from the opinion by Tilghman, C. J.: “The defendant pleaded that he was married to the plaintiff, on which issue was joined, and it was objected that the judge ought to have directed the jury that the evidence proved the marriage. The judge laid down the law correctly. He told the jury, that marriage was a civil contract, which might be completed by any words in the present time, without regard to form. He told them also, that, in his opinion, the words proved did not constitute a marriage; and in this I agree with him. The plaintiff and defendant came to their lawyer, Mr. Watts, on business, without any intention of marrying. They had long lived in an adulterous intercourse, although they considered themselves as lawfully married. In fact they had entered into ‘a marriage contract, which was void because the defendant had a former wife living, from whom he had been separated by consent, but not legally. Some time before the parties came to Mr. Watts, a legal divorce had been pronounced, and Mr. Watts advised them to celebrate a new marriage. The defendant said: ‘I take you (the plaintiff) for my wife;’ and the plaintiff, being told that if she would say the same thing the marriage would be complete, answered: ‘'To be sure, he is my husband, good enough” Now these words of the woman do not constitute a present contract, but allude to the past contract, which she always asserted to be a lawful mar- riage. Mr. Watts advised them to repeat the marriage in a solemn manner before a clergyman, which was never done. ‘So that, under all the circumstances, it appears to me that what was done was too slight and too equivocal to establish a marriage.”1 “But although this case illustrates a principle well enough, there is room for doubt whether it was correctly decided. The presumptions of law are in favor of marriage between parties living together as husband and wife ;? and 1 Hantz v. Sealy, 6 Binn. 405. * Ante, § 360. [78] CHAP. V.] _» IMPERFECT CONSENT. § 86 certainly no forced construction would be required to consider the words used by the woman, in the presence of Mr. Watts, as an affirmative response to those of the man. Further than this also, where parties are living together under both the wish and the belief of being husband and wife, if an impediment of to-day prevents the legal status from being superinduced thereby, and to-morrow the impediment is removed, there is reason to hold, that the status uprises as the impediment sinks! This observation applies to a case only where mar- riage may be constituted by consent alone; and where in fact the parties both desire marriage, and are cohabiting while the impediment is not subsisting. And there is a class of authorities which at least would permit the jury in these circumstances to infer an agreement of marriage entered into after the impediment ‘was removed. At the same time, it is fair to observe of this Pennsylvania case, that the woman, in bringing her suit against the man, showed her own disposi- tion, at the time of bringing it, not to be in favor of being con- sidered his wife; disaffirming thereby the marriage, as far as she was able. § 86. The consent, to constitute present marriage, must not be incumbered with any qualification of an intervening thing to be done before it takes effect; as that the marriage shall be publicly solemnized2 The question in a case of this sort is, whether the qualifying matter was intended to delay the nuptials, or was added for some other purpose; as to satisfy scruples, or for appearance and good order. ‘To illustrate: in Scotland, a woman having been delivered of a bastard child, went to the putative'father, and threatened to destroy herself if he did not give her a line acknowledging her to be his wife. He gave her the following: “ My dear, as a full testimony of my regard and affection for you, I hereby agree 1 See post, § 188-190. 2 Lord Brougham, in Reg. v. Millis, 10 Cl. & F. 534, 708, 730; Lord Campbell, ib. p. 748, 783, 797. And see Stewart v. Menzies, 2 Rob. Ap. Cas. 547, 591; Clark v. Field, 13 Vt. 460. [79 ] § 87 NULLITIES OF MARRIAGE. [Book m1. and bind myself to be your real husband in all senses of the word, and expects only the common ceremony of the outward rule of marriage, and .... I do hereby bind and oblige myself to accept of you as my lawful wife, and is ready and willing to accept the common rite here put in execution in a public manner; or, if that cannot be conveniently done, suiting to all parties, lam agreeable 10 accept to any meas- ure you think proper yourself, so as we may be united together in marriage. To this I sign my name as your real husband.” It appeared from his judicial examination, that he understood himself bound by this declaration, and not at liberty to marry another; and that he had no doubt the woman, when she received it, understood herself to be bound in like manner. Connecting this admission with the writing itself, the court pronounced for the marriage.1 So where the man, besides introducing the woman to respectable people as his wife, wrote and subscribed the following, which he gave her: “I Her by aknolidg and own that I am maryed to Else- peth Curriaa, as soon as I got all things put to rights, or my affairs are that Iam not to see you in no ways distress, until that I proved (provide) for you, which I hop will not be long. This is all from your’s, David Turnbull,” — the majority of the court were of opinion, that a clear acknowledgment de presenti was contained in the opening words of the writing, and that the sequel, though somewhat confused, was a state- ment of his reasons for delaying to take her home as his wife, and a promise to provide for her in the mean time. The case, however, contained in itself other evidence sufficient to establish the marriage; namely, oral acknowledgments fol- lowed by copula.” § 87. Where successive declarations of present promise are made, the first are not superceded and rendered null by what follow. Indeed they could not be; since, if they were sufficient to constitute marriage, no agreement of the 1 Edmeston v. Cochrane, 1 Fras. Dom. Rel. 153. . 2 Currie v. Turnbull, Hume, 378, 1 Fras. Dom. Rel. 154. [80 ] CHAP. V.] IMPERFECT CONSENT. § 88 parties would annul it! In one case there were three several and distinct declarations on different days. The first was, « We swear we will marry one another.” The second, “I take you for my wife, and swear never to marry any other woman.” And the third was a repetition of the second. It was contended against this marriage, that the subsequent iteration of the first declaration showed the parties not to have intended to depend upon it, and to have in effect disclaimed it. But the Court of Delegates overruled the objection, and the Chancellor refused a commission of review.? § 88. So the Dalrymple case was held to be one of mar- riage per verba de presenti; and, though copula followed, it was not necessary to perfect the marriage. There the con- sent lay chiefly in three several mutual enunciations, made on different occasions. ‘The first was, “1 do hereby promise to marry you as soon as it is in my power, and never marry another,” signed by the gentleman ; the lady adding, over her signature, “and I promise the same.” This paper was in- dorsed, “a sacred promise.” The second paper was, “ I hereby declare that Johanna Gordon is my lawful wife,” signed by him; “and I hereby acknowledge John Dalrymple as my lawful husband,” signed by her. The third was, “I hereby declare Johanna Gordon to be my lawful wife, and as such I shall acknowledge her the moment I have it in my power. J. W. Dalrymple. I hereby promise that nothing but the greatest necessity (necessity which situation alone can justify) shall ever force me to declare this marriage. J. Gordon, (now) J. Dalrymple. Witness, Charlotte Gordon.” The last two papers were inclosed in an envelope inscribed, “Sacred promises and engagements.” ‘They were all pro- } Hoggan v. Craigie, Maclean & Rob. 942, 974. * Fitzmaurice v. Fitzmaurice, cited in Walton v. Rider, 1 Lee, 16, 28, 5 Eng. Ec. 289, 295; also in Dalrymple v. Dalrymple, 2 Hag. Con. 54, 69, 4 Eng. Ec. 485, 492. [81] § 90 NULLITIES OF MARRIAGE. [Book III. . duced by Miss Gordon, in whose possession they had remained, and they were held to establish the marriage.1 § 89. An agreement to keep the marriage secret will not invalidate it, neither necessarily involve in doubt the proofs of its existence. Such an agreement, as observed by Lord Stowell, sometimes attends the most regular marriages, “ from prudential reasons; from the same motive it almost always does private or clandestine marriages. It is only an evidence against the existence of a marriage when no such prudential reasons can be assigned for it, and when every thing, arising from the very nature of marriage, calls for its publication.” ? V. Consent per Verba de Futuro cum Copula. § 90. The doctrine of consent per verba de futuro cum copula’ may be stated as follows: If parties are engaged to be married, and then, such engagement remaining unre- voked, have carnal intercourse, the engagement and copula, connected together, amount in law to a present consent. The reason assigned is, that the law presumes the copula was allowed on the faith of the marriage promise; and that so the parties, at the time of the copula, accepted of each other as husband and wife. This doctrine, let us observe, is in accordance with the general rule of law, that every man ? Dalrymple v. Dalrymple, 2 Hag. Con. 54, 4 Eng. Ec. 485. See also 2 Hag. Con. App. 144; Piers v. Piers, 2 H. L. Cas. 331. * Dalrymple v. Dalrymple, 2 Hag. Con. 54, 76, 4 Eng. Ec. 485, 495; Swift v. Kelly, 3 Knapp, 257; Hamilton v. Hamilton, 9 Cl. & F. 327; Ayl. Parer. 364. 5 Ante, § 66, 83a. * Reid v. Laing, 1 Shaw Ap. Cas. 440; Stewart v. Menzies, 2 Rob. Ap. Cas. 547, 591; Lord Stowell, in Dalrymple v. Dalrymple, 2 Hag. Con. 66, 67,4 Eng. Ec. 490, 491; Fergusson, in Ferg. Consist. Law, Rep. 149; 1 Fras. Dom. Rel. 188; Lord Campbell, in Reg. v. Millis, 10 Cl. & F, 534, 780; Dumaresly v. Fishly, 3 A. K. Marshall, 368, 372. [82] CHAP. V.] IMPERFECT CONSENT. § 91a shall be presumed innocent of an. offence until the contrary is established ;1 and that, therefore, if an act is equally sus- ceptible of two constructions, the one showing the doer to be innocent, and the other guilty, the former shall be preferred. Connecting thus the consent de futuro with the copula, and making of the two a present consent, the copula becomes moral and legal, which otherwise would be immoral and illegal. Therefore it.is, that no solicitations of chastity, or attempts at copula, or other familiarities short of the carnal act, will convert espousals de futuro into present matrimony? §91. The books indeed speak, as already observed? of marriages per verba de presenti, and per verba de futuro cum copula, as though entered into in different ways; but this form of expression seems to have been adopted for the sake of convenience merely. Yet if we consider the latter as sepa- rate species of marriage, still they have, according to all the authorities, the same effect as the former.t § 91a. A case, however, has been recently decided in the New York Court of Appeals, wherein these marriages per verba de futuro cum copula are denied to be valid in New York; though already the doctrine there had been settled, that marriages per verba de presenti, without formal solemni- zation, are valid Indeed dicta had fallen from the judges to the extent, that marriages per verba de futuro cum copula are also valid. The court, in this case, not intending to reverse the 11 Greenl. Ev. § 34, 35. 2 Swinb. Spousals, 27, 28, 40, 228. 5 Ante, § 83a. : * Dalrymple v. Dalrymple, 2 Hag. Con. 54,4 Eng. Ec. 485. In Reg. v. Millis, 10 Cl. & F. 534, it was agreed on all sides, that espousals per verba de futuro cum copula have precisely the effect of espousals per verba de presenti, whatever that effect in law may be. And see Portynton v. Steinbergh, cited in that case from the rolls of the Province of York, ib. 841; Ferg. Consist. Law, 119; Pennycook v. Grinton, Ferg. Consist. Law, Rep 95; Patton v. Philadelphia, 1 La. Ann. 98. 5 See post, § 163. | [83] § 91a NULLITIES OF MARRIAGE. [BOOK IIL. doctrine established, yet, misunderstanding the doctrine now under consideration, distinguished it from the other, and while overthrowing it did not contemplate a departure from any thing more than the dicta mentioned. Unfortunate it is that this tribunal, representing the judicial wisdom of the largest State of our Union, should have come to the consid- eration of this question without being referred to the authori- ties explaining the nature of the rule of law overturned. The judges understood, that the rule makes a marriage without the consent of the parties, instead of merely making them married, as in other circumstances, when they do con- sent. * Cheney v. Arnold, 15 N. ¥. 345. This matter is so important, that it may not be amiss to quote some of the language employed by the learned chief justice, other than what is referred to in the text, and show, by expla- nations in brackets, how the court misapprehended the doctrine. He said: “ The principle, that a promise followed by intercourse was in some sense a marriage, was a branch of the ecclesiastical system, resulting from the acknowledged jurisdiction of the ecclesiastical courts to compel the perform- ance of such marriages by spiritual censures. [This statement is entirely without foundation of authority, and unsupported by any course of fair reasoning. The ecclesiastical courts, for the purpose of promoting good order, used to compel the public. celebration of marriages and promises to marry, both those which were per verba de futuro, with or without copuia, and those which were per verba de presenti, ante, §53 and note; but the doctrine had already been settled in New York, that marriage might be good without this public celebration. And it had never been anywhere held, that one court would ever pronounce any marriage sufficient, merely. because it supposed another court would afterward, if applied to, compel the parties to marry each other. The bare enunciation of the proposition shows it to be foreign to all correct legal principle.] Having dispensed with that [the ecclesiastical] jurisdiction, we cannot consistently acknowledge any marriagé to be valid which requires the intervention of a spiritual court to make it perfect. We must insist upon those circumstances which the law requires in an executed contract upon any other subject. [Very true; but the law governing this species of contract had constituted the evidence of a future promise, and of copula following it, sufficient proof that the parties, when having the copula, did what they had promised to do; made, what they had promised to make, a contract in the present time ; become, what they had promised they would, husband and wife; not committed a gross breach of social decorum, of public law, and of public and private morals. [ 84] CHAP. V.] IMPERFECT CONSENT. § 92 VI. Consent by Habit and Repute. § 92. Some writers also, as the Scotch lawyers, make a third kind of informal marriage; namely, by the parties co- And this doctrine is neither a novel one, nor one existing only in some musty book of mere ecclesiastical law; it is a branch of a broad principle of universal law and justice; a principle so broad, and sending out so many branches through all the departments of our common law, as to render it worthy even to be introduced where it had not been known before, much more worthy not to be ejected from a place it was already occupying.] Mutual promises to marry in future are executory, and whatever indiscre- tions the parties may commit after making such promises, they do not be- come husband and wife until they have actually given themselves to each other in that relation. {This also is very true; and the doctrine of marriage per verba de futuro cum copula proceeds, as already observed, on the idea that, in the absence of circumstances or proofs to the contrary, the parties to a marriage promise shall be presumed to have converted their future into a present consent, instead of violating decency and morality and law, when yielding themselves to what is implied in marriage promise. In other words, they shall be presumed to give themselves to each other in the relation of marriage, when, after mutually promising to enter into it, they mutually give themselves to what is lawful only in that relation. Whether this pre- sumption will in any circumstances be held conclusive, to the extent of precluding a party from introducing evidence of a contrary mutual under- standing at the time of copula had, is a question on which opposite opinions may perhaps be entertained, as by and by we shall see. But supposing it conclusive, still the case does not differ in principle from that of persons voluntarily going through with a public ceremony of marriage; when, as we have seen, they may in some circumstances and according to some opinions be conclusively held to have intended matrimony, instead of merely intending a public diversion or imposition.] That this [the doctrine laid down by the judge] has been the*sense of the legal profession and of the courts is evident from the rules relating to several actions in common use. Ifa man seduce a woman under a promise of marriage [The doctrine of consent per verba de futuro cum copula does not make marriage of this. See post, § 96], we allow an action for the ‘seduction at the suit of the father, and an action for a breach of the promise at the suit of the daughter. According to the plaintiff’s argument [The plaintiff was the party claiming marriage as having been contracted in the way we are considering], both actions would be absurdities; for, the marriage being complete by the act complained of [We have seen that in these circumstances it ig not complete by this act], there would be no seduction, and no breach of promise. So in. 8 [85] § 92 NULLITIES OF MARRIAGE. BOOK II. habiting as husband and wife, and being holden and reputed to be married persons.! Indeed this kind of marriage seems to be as clearly defined in the Scotch law, as that by words of future consent followed by copula. Perhaps this distinc- tion in the language of the law was introduced into Scotland by an ancient statute, providing, that widows, who were hold- en and reputed wives of the defunct, should have their terce aye and till it should be clearly discerned that they were not lawful wives.2 In Massachusetts, a statute still more broad the action for a breach of promise of marriage, if it appear that the plaintiff, on the faith of the defendant’s promise, has been seduced by him, and has become enciente, it is considered as a circumstance of great aggravation, and the damages are proportionably increased ; whereas, if the [this] plaintiff’s position is sound, the defendant [in the breach of promise suit] by the very act has made all the reparation in his power, and has become the husband of the plaintiff.” [Concerning the argument thus drawn from the two forms of action mentioned, we must concede, that, in the single case, not of seduc- tion under promise of marriage, meaning by this an unlawful intercourse to which the woman consents on the strength of the man’s promising to marry her afterward, but of common seduction, where the seducer and seduced are already under contract to marry one another at a future time, there are the outward circumstances which may, the intent of the parties concurring, constitute marriage. But the doctrine under consideration does not make even this necessarily a marriage. And the plaintiff, in each of the actions mentioned, takes the position, by the very bringing of the action, that the par- ticular case is one in which marriage did not take place at the time of the copula. The defendant, of course, gladly abstains from alleging the contrary ; because, if he were willing to become the husband of the woman, that would end the action itself. Therefore the New York court greatly misapprehended in assuming, that these forms of action militate against the doctrine under consideration, even supposing the ignorance of plaintiffs and defendants sufficient to establish the law. But such ignorance is not often brought for- ward to overthrow rules of adjudication resting on an affirmative practice, either of our own courts, or of the English tribunals in the early times.] +1 Fras. Dom. Rel. 113; Ferg. Consist. Law, 116. In respect to this kind of marriage, the court in one case observed; “ They [the witnesses] never heard this man call her his wife, or any thing which could lead them to hold he meant to call her his wife. In no case where this language was not used has the marriage been sustained.” Thomas v. Gordon, 7 Scotch Sess. Cas. 872. 21 Fras. Dom. Rel. 202. [86] CHAP. V.] IMPERFECT CONSENT. § 93 ‘ has been enacted. It provides, that, in “all cases where it shall become necessary to prove the fact of marriage, in any hearing before any court in this Commonwealth,” “evidence of admission of said fact by the party against whom the pro- cess is instituted, or of general repute, or of cohabitation as married persons, or any other circumstantial or presumptive evidence, from which said fact may be inferred, shall be re- ceived as competent evidence for consideration, whether the marriage to be proved was contracted in this Commonwealth or elsewhere.” 1 But obviously the rule of the Scotch law, like the statute of Massachusetts, pertains merely to the evi- dence.2 There seems to be no good reason, therefore, either of a philosophical or a practical nature, for distinguishing be- tween the different kinds of consent, as indicated by the differ- ent modes of proof. VII. Principles governing the Consent per Verba de Futuro cum Copula. . §93. The rule, that words of future promise may be con- verted by copula into present marriage, being thus one of evi- _ dence merely, may probably be always controlled by proof of marriage not intended. Therefore the doctrine seems to be, that, if parties after contracting de futuro have carnal inter- course under the express agreement not to create thereby a marriage, it will not so operate Yet Swinburne and Ayliffe both assert, that, though the persons betrothed should protest before copula their intention not to convert the espousals into matrimony, “ yet this protestation is overcome by the fact following; for by lying together they are presumed to 1 Stat. 1840, c. 84; 1841, c. 20; Commonwealth v. Morris, 1 Cush. 391. ? 1 Fras. Dom. Rel. 203. It is by some supposed that this rule in the Scotch law is derived from the canon law. Ib. 202. ’ Ante, § 90. And see Dumaresly v. Fishly, there cited; Ferg. Consist. Law, Rep. 118, 129, 180; Pennycook v. Grinton, ib. 95. * 2 Hag. Con. App. 41, 77; 1 Fras. Dom. Rel. at; More’s Notes to Stair, 13. [87] § 95 NULLITIES OF MARRIAGE. [Boox rm. have swerved from their former unhonest protestation,” and so a marriage, in spite of the protestation, is created But this statement of the law appears only to hold the rule of pre- sumptive innocence with a strong hand, and not absolutely to deny that it may be overcome. And the better view appears to be the one expressed in a dictum of Lord Campbell, who says: “If the woman, in surrendering her person, is conscious that she is committing an act of fornication, instead of con- summating her marriage, the copula cannot be connected with any previous promise that has been made, and marriage is not thereby constituted ;”? leaving the intent a subject of inquiry, and the presumption of law, which favors innocence, open to be rebutted by evidence, in each particular case. § 94. Thus the presumption of present consent, where cop- ula followed a promise of future marriage, was overcome in a Scotch case even by a counter presumption. For when a countess, after engaging to marry her footman, or at least after his courtship and matrimonial proposals, yielded to his embraces, the court and counsel agreed, that marriage should not be inferred ; the disparity of rank and circumstances ren- dering probable her allegation, that she had chosen to indulge a licentious passion, rather than degrade herself from her high station by espousing her menial servant. On a like ‘principle, where no promise is proved, a marriage between a free white woman and her.negro slave will not be inferred from cohabitation. § 95. But though the parties were living in fornication, be- fore the promise of future marriage, still the general rule pre- vails, and marriage is constituted by their subsequent inter- 1 Swinb. Spousals, 224; Ayl. Parer. 250. * Reg. v. Millis, 10 Cl. & F. 534, 782. ® Forbes v. Strathmore, Ferg. Consist. Law, Rep. 113. The pursuer, however, proceeded to prove a marriage by habit and repute, and the lady abandoned the defence. * Armstrong v. Hodges, 2 B. Monr. 69. [88 ] cHaP. v.] IMPERFECT CONSENT. § 96 course! The presumption is, that the woman had reformed, and refused to continue the connection, unless put on an hon- orable footing.2 Yet where merely a promise to marry follows _ copula, and no copula follows the promise, a marriage is not constituted. And it is the same, it seems, where the promise has been discharged before the copula takes place,’ — which is also the rule of the canon law. Yet, in Hoggan v. Cragie, Lord Brougham intimated, as the sounder view, that the cop- ula would both revive the promise and give it the character of a present consent.* § 96. When the copula is the condition of the promise, as where a man says to a woman, “T will marry you in six weeks if you will sleep with me to-night,” a marriage is not consti-, tuted.5 And where there is a conditional promise of future marriage, followed by copula; if the condition is of a nature not to be purified until after the copula had, the law will not found a marriage upon this transaction; but, if it could be purified before, or at the time, the law will presume it was so - purified, and will infer a present mutual consent from the car- nal act.6 An illustration of a condition not purified by cop- ula, is where the man tells the woman he will marry her, if she becomes with child, or a child is born, from the: connec- tion. Here the promise in terms rests on an event to happen after the copula, which excludes the possibility of a present 1 Sim v. Miles, 8 Scotch Sess. Cas. 89, 97. 2 1 Fras. Dom. Rel. 195. 3 Swinb. Spousals, 226. * 1 Fras. Dom. Rel. 196; Hoggan v. Cragie, Maclean & Rob. 942, 974; Lord Campbell, in Reg. v. Millis, 10 Cl. & F. 534, 782. Ayliffe holds: that @ marriage is not constituted in such a case. Ayl. Parer. 250; ante, § 90. In Turpin v. The Public Administrator, 2 Brad. 424, the surrogate observed : “When parties are living in a meretricious state, a promise to marry on some future condition does not effect a marriage by a mere continuation of that connection.” 5 Lords Brougham and Campbell, in Reg. v. Millis, 10 Cl. & F. 534, 626, 782. § 1 Fras. Dom, Rel. 193. 8* [89] , § 97 a NULLITIES OF MARRIAGE. [Book TI consent! On the other hand, if a man has agreed to marry a woman when he can do so with comfort, or when she finds caution that she is free from debt, or worth a sum of money named ; the condition in its nature may at any time be puri- fied, and, if copula follow such a promise, the law will hold the parties to be married. § 97. “ Albeit,” says Swinburne, “the woman were be-. trothed against her will, yet if she suffer herself to be known by him to whom she was espoused, she is presumed to have consented unto him as unto her husband, whereby the spou- sals are made matrimony. Albeit the woman be uncertain ; as if a man do swear to three sisters, that he will marry one of them; for by lying with one of them those spousals be- come matrimony.” 3 § 97 a. We should however notice, that a mere courtship, followed by copula, is not marriaget| The marriage promise must be absolute and mutual; though, like every thing else, it may be proved by circumstantial as well as by direct evi- dence There has been some discussion, whether the copula may be relied on as one of the circumstances in proof of the promise; and the better opinion is, that it may be. The promise must have a complete existence distinct from the copula ;*® but the parties living together may have some effect, such as to “explain ambiguous words.” 7 1 Stewart v. Menzies, 2 Rob. App. Cas. 547; Kennedy v. Macdowall, Ferg. Consist. Law, Rep. 163, App. 90; Swinb. Spousals, 148. 21 Fras. Dom. Rel. 194. 3 Swinb. Spousals, 225. “ Monteith v. Robb, 6 Scotch Sess. Cas. N. 8. 934. ° Hoggan v. Craigie, Maclean & Rob. 942; Honyman v. Campbell, 8 Scotch Sess. Cas. 1039, 5 Wilson & Shaw, 92. 6 Harvie v. Inglis, 15 Scotch Sess. Cas. 964. . * Graham’s case, 2 Lewin, 97; Campbell v. Honyman, 8 Scotch Sess. Cas. 1039, 1050, 5 Wilson & Shaw, 92, [90 ] CHAP. V.] IMPERFECT CONSENT. § 98 VIIL Effect of this Impediment of Imperfect Consent. § 98. It is obvious, that the want of consent considered in this chapter renders the supposed marriage a mere nullity. It may often be desirable, and sometimes of the highest practical importance, for the facts to be inquired into, and a sentence of nullity pronounced, in a suit instituted for the purpose. Yet no legal necessity requires this; but the invalidity of the marriage may be shown by any party, in any judicial pro- ceeding, in which the question is either directly or indirectly involved.! 1 Ante, § 63, 64, 85. Post, § 262. [91] § 99 NULLITIES OF MARRIAGE. [BOOK IIL. CHAPTER VI. FRAUD, ERROR, DURESS. Sxcr. 98a, 99. Introduction. 100-116. Fraud. 1164-118. Error. 119-121. Duress. 122, 128. Some Principles Common to the three Impediments. § 98a. The subject of this chapter is involved in great obscurity, as it stands on the authorities. Not only are there to be found in the books observations contradicting one another; but even, when we go below the observations, and examine the facts of cases decided, we see contradictions in the results reached, as well as violations of just princi- ple. Perhaps some distinction may be taken between the three several impediments to marriage mentioned in the title of this chapter, as to the doctrines governing them; so we shall consider them separately, as follows: I. Fraud; II. Error; . IIL Duress. We shall then close the chapter with, IV. Some Principles Common to the three Impediments. But before entering on this separate discussion, let us make the one general observation, that all contracts are necessarily vitiated by the defects now to be considered, and that marriage can- not, in the nature of the case, be deemed an exception. § 99. A further preliminary proposition should be laid down; namely, that, in reason, speaking now independently of authority, whatever of fraud, of error, of duress, will vitiate any other contract, should ordinarily be received as sufficient to vitiate the mere marriage contract, whether executory or executed, viewed as a thing separate from the consumma- tion which follows. Probably the authorities may hold this proposition to be good as applied to the contract per verba de [92] CHAP. VI.] FRAUD, ERROR, DURESS. § 100 futuro ;1 but, however this may be, the dicta of the judges generally, perhaps their decisions also, do not fully accord, as in reason they should, with this proposition as applied to that contract in the present time which superinduces the mar- riage status. If the contract of present marriage is followed by the parties living together as husband and wife, or even by , copula falling short of this, where the copula is not brought about by any thing analogous to rape, a different principle may in some circumstances be involved. Especially if copula © were allowed after knowledge of the impediment had reached the mind of the party allowing it, all objection on the ground of the impediment would ordinarily be waived thereby. This is a distinction of immense importance, as the question stands in principle; and probably the failure oftentimes of judges to take the distinction is the main cause of. the very confused state of the law as it rests on the authorities. But the authorities are clear to the general conclusion, that fraud, error, or duress may render the marriage void.? Let us now proceed with the discussion in the order indicated. J. Fraud. § 100. When the question comes before a tribunal, whether a particular contract is void by reason of a fraud shown to have entered into its original constitution, many things may demand consideration. Among these things, the nature of. the contract must be taken into the account; for what would 1 See post, § 101. * 2 Kent Com. 76; Harford v. Morris, 2 Hag. Con. 423, 4 Eng. Ee. 575; Countess of Portsmouth v. Earl of Portsmouth, 1 Hag. Ec. 355, 3 Eng. Ec. 154; Jolly v. McGregor, 8 Wilson & Shaw, 85; Burtis v. Burtis, Hopkins, 557; Scott v. Shufeldt, 5 Paige, 43; Perry v. Perry, 2 Paige, 501; Ferlat v. Gojon, Hopkins, 478; Clark v. Field, 13 Vt. 460; Hull v. Hull, 15 Jur. 710, 5 Eng. L. & Eq. 589 ; Respublica v. Hevice, 3 Wheeler Crim. ‘Cas. 505; Dalrymple v. Dalrymple, 2 Hag. Con. 54, 104, 4 Eng. Ec. 485; Keyes v. Keyes, 2 Fost. N. H. 553; Robertson v. Cole, 12 Texas, 856; Sloan v. Kane, 10 How. N. Y. Pract. 66. [93] & § 101 NULLITIES OF MARRIAGE. [BooK II. avoid one kind of contract may not necessarily be sufficient to avoid another. In that contract of marriage which forms the gate-way to the status of marriage, the parties take each other for better, for worse,! for richer, for poorer, to cherish each other in sickness and in health; consequently a mistake, whether resulting from accident, or indeed generally from fraudulent practices, in respect to the character, fortune, health, — does not render void what is done.2. To this conclusion the authorities all conduct us, but different modes of stating the reason for it have been adopted. Thus the qualities just men- tioned are sometimes said to be accidental, not going to the essentials of the relation2 And Lord Stowell, after remark- ing that error about the family or fortune of an individual, though produced by disingenuous representations, does not affect the validity of the marriage, adds: “ A man who means to act upon such representations should verify them by his own inquiries. The law presumes that he uses due caution in a matter in which his happiness for life is so materially in- volved, and it makes no provision for the relief of a blind credulity, however it may have been produced.” # § 101. Among the reasons assigned for the doctrine of the last section, the former of the two mentioned appears to be’ the more worthy of regard; namely, that the nature of mar- riage forbids its validity to rest upon any stipulations concern- ing these accidental qualities.5 If the man should in words agree with the woman to be her husband only on condition of her proving so rich, so virtuous, so wise, so healthy, of such a standing in society; yet, if he afterward celebrates the nup- + Evans v. Evans, 1 Hag. Con. 35, 4 Eng. Ec. 310, 349; Scroggins v. Scroggins, 3 Dev. 535, 545. * Ewing v. Wheatley, 2 Hag. Con. 175, 182, 183; Wakefield v. Mackay, 1 Phillim. 134, 137, note; Clowes v. Clowes, 8 Curt. Ec. 185, 191; 1 Fras. Dom. Rel. 230; Ruth. Inst. b. 1, c. 15, §11, 12; 2 Kent Com. 77. 3 1 Fras. Dom. Rel. 230. * Wakefield v. Mackay, supra. 5 Page on Div. 158. [94] * CHAP. VI.] FRAUD, ERROR, DURESS. § 102 tials on her representing herself to possess the stipulated qual- ities, while in truth she is destitute of them ; still, in such cel- ebration, he says to her in effect and in law, “I take you to be my wife, whether you have the qualities or not, whether you have deceived me or not.” In other words, he waives the condition. 'To carry such a condition into the marital rela- tion would violate its spirit and purpose, and be contrary to good morals. The objects of marriage, rightly understood, transcend all considerations of the kind mentioned; and, if the purchaser of a jewel could not annul the bargain by rea- son of the seller sending it to him in a plain envelope of pa- per, instead of a figured one, as was contemplated, — surely the husband should not be permitted to repudiate his marriage, who should discover an absence of some secondary thing, to which he had given his affections, instead of placing them where he had promised they should repose. Herein the law regulating the executed contract of present marriage differs from that governing the agreement of future marriage ; for, as to the latter, the parties to it seem so far to stipulate con- cerning the accidentals, as to enable either to avoid the con- tract where any fraud as to them has been discovered! Per- haps the rule thus stated, applied to the executory contract, is well; but, applied to the executed contract, it would degrade a high and holy relation to a level with things of mere mer- cantile consideration. § 102. In pursuing this subject through the following sec- tions, we shall be obliged to forego the orderly arrangement of the matter under examination which we are able to adopt in treating of most other titles in the law. The reason is, that the decisions are not now sufficiently numerous to enable an author to draw the lines completely around this subject, and so he has no resource but to follow simply after the few facts of cases already decided. 1 See Addison on Contracts, 580-585 ; Chitty on Contracts, 538-541. . [95] § 103 NULLITIES OF MARRIAGE. [Book I. § 103. A species of fraud, sometimes met with, is conspira- cy. There seems to be ground for saying, that, if the party against whom the marriage is sought to be set aside was not one of the conspirators, as where a parish by fraudulent contrivances procured the marriage of a female pauper, for the purpose of changing her settlement to another parish, — the conspiracy will not make the marriage invalid Lord Stowell, however, apparently referring to cases in which the party proceeded against was not one of the conspirators, ob- served: “I will not lay it down, that, in no possible case, can a marriage be set aside on the ground of having been effected by a conspiracy. Suppose three or four persons were to com- bine to effect such a purpose by intoxicating another, and marrying him in that perverted state of mind, this court would not hesitate to annul a marriage on clear proof of such a cause, connected with such an effect. Not many cases oc- cur to me in which the codperation of other persons to pro- duce a marriage can be so considered, if the party was not in a state of disability, natural or artificial, which created a want of reason, or volition, amounting to an incapacity to con- tract.” 2 1 Rex v. Birmingham, 8 B. & C. 29, 2 Man. & R. 230; Rex v. Tarant, 1 Bott P. L. 338, 2 Bott P. L.68. See post, § 1035. If an executed marri- age were like any other contract, some doubt might arise as to the correct- ness of this proposition. For when one takes the benefit of another’s act, he necessarily adopts the act entire, including the fraud, if it be fraudulent. Mason v. Crosby, 1 Woodb. & M. 342, 353, 358, and the cases there cited. ® Sullivan v. Sullivan, 2 Hag. Con. 238, 246. But further on, in the same case, p. 247, this learned judge observed: “ Suppose a young man of sixteen, in the first bloom of youth, the representative of a noble family, and the in- heritor of a splendid fortune; suppose that he is induced, by persons con- nected with a female, in all respects unworthy of such an alliance, to con- tract a marriage with her, after due publication of banns in a parish church, to which both are strangers; I say the strongest case you could establish, of the most deliberate plot, leading to a marriage the most unseemly in all dis- proportions of rank, of fortune, of habits of life, and even of age itself, would not enable this court to release him from chains, which, though forged by others, he had riveted on himself. If he is capable of consent, and has con- sented, the law does not ask how the consent has been induced. His own [96 ] CHAP. VI.] FRAUD, ERROR, DURESS. § 103 b § 103 a. If we look at this question of marriage effected by a fraudulent conspiracy, in the light of principle, we shall draw the following distinction. When the marriage is the volun- tary act of the parties to it, proceeding from voluntary choice, though at the same time deceitful practices by third persons led them to this choice, neither of them being cognizant of the fraud, it is a perfect marriage, as perfect as any possibly can be. But if one of them was cognizant of the fraud, and so voluntarily availed himself of it, whether he was a party to the originating of it or not, it should be deemed his fraud ; and, if sufficient in degree and kind, should entitle the other party to have the marriage set aside. § 103 6. The distinction suggested in the last section en- ables us to see how the following case was correctly decided ; while, if the defendant had not been cognizant of the fraud, the result would have been the other way; unless, indeed, the duress alleged, or want of mental capacity in the plaintiff, had been established to the satisfaction of the court. The case arose in Vermont, being a suit brought by the woman to have her marriage declared void; and the opinion, delivered by Redfield, C. J., leading to the decree sought, sufficiently explains the facts. “We are satisfied,” said he, “that. the form of marriage was brought about between these: parties, chiefly through the instrumentality of certain inhabitants of Moretown, who had charge of maintaining the town’s poor, for the purpose of changing the settlement of the petitioner ; and that, to effect this, they promised Wyethe [the husband] $100, and paid him $60; that his purpose was not to con- tract, in good faith, a marriage, but to get money, and revenge an imaginary grievance against Middlesex, and abandon the petitioner, which he did in about three weeks. She is a crip- ple, feeble both in body and mind, and was wholly at the dis- consent, however procured, is his own act, and he must impute all the con- sequences resulting from it, either to himself or to others whose happiness he ought to have consulted, to his own responsibility for that consent. The law looks no further back.” 9 [ 97] § 103 ¢ NULLITIES OF MARRIAGE. [Book IIL. posal of those who had her in charge. It is difficult to lay down any general rule in regard to the precise character of fraud which will render null a marriage contract. But we are reluctant to say, that such a transaction as the present is to receive the countenance of the courts of the State. It would, we think, be of evil example. The transaction possesses no one feature of a marriage contract but the ceremony. The cohabitation, so long as it continued, seems to have been, on the part of the petitioner, the result of the general imposition ; and, on the part of the defendant, a part of the attempted vil- lany. A decree of nullity, if it have no other good effect (and, as to the parties, it seems to be of no great importance, both being virtual paupers), will deprive the conspirators of the wages of their iniquity, and be of good example to others. We are not satisfied there was any such duress in the case as to justify a decree of nullity. But one of the chief actors tes- tifies, that he told the petitioner the laws were so altered that the town authority said they had a right to marry paupers to whom they saw fit; and the petitioner testifies, that she be- lieved it, and supposed that if she refused to submit to the marriage she should be left to starve. It is impossible to know how much such badinage might have influenced so simple a creature in the outset; but we are not satisfied she finally acted under the delusion, and still she might have done. Petition granted.”1 Perhaps it is material further to consider, in looking into this case, that the defendant never intended real matrimony, though he went through with the form of marriage; and that, therefore, those principles which we brought under review in the last chapter, concerning the forms of marriage where the intent to marry does not exist,? operate in conjunction with the doctrine of fraud treated of in this chapter. § 103c. If a man and woman combine together to marry } Barnes v. Wyethe, 2 Wms. Vt. 41. ? Ante, § 72 et seq. [98 ] CHAP. VI.] FRAUD, ERROR, DURESS. § 104 each other for the purpose of injuring third persons in their property interests, this combination does not render the marriage void as against those third persons. The relation assumed, being agreeable to the parties, cannot be interfered. with by others; neither can others, whatever the motives prompting to it, avoid any of the collateral consequences to themselves, which arise legally out of the relation. * Therefore when a widow woman, having a property interest terminable with her widowhood, which interest was levied on by her creditors, married a poor drunken man to defeat the levy and cause the estate to become vested immediately in her children, she not intending to cohabit, and never cohabiting in fact, with this man, the court held, that her creditor could object neither to the marriage nor to its consequences. Said McKinney, J.: “If a marriage may be annulled for fraud, it must be such fraud as operates upon one or other of the immediate parties to the contract, and has the legal effect of vitiating the contract between the parties, ab initio. But, as respects strangers, fraud cannot be predicated of a contract which the immediate parties thereto may lawfully enter into, which no principle of municipal law forbids, or can restrain the consummation of.” 1 § 104. The Connecticut court, in seeking a construction for the statute of that State, which allowed divorce for “ fraudulent. contract,” made the following just observations : “The phrase fraudulent contract, in common parlance, admits of great latitude of construction, and will include all those deceptive acts to which the sexes too frequently have re- course, with a view to obtain what they consider an advan- tageous marriage connection; by setting off their persons, characters, tempers, circumstances, and connections in a too favorable light; or by professions of ardent affection, which they either may not feel, or not in a degree equal to what’ they profess. These acts, though they meet with various degrees of indulgence, according to circumstances, are still " McKinney v. Clarke, 2 Swan, Tenn. 321, 325. [99] § 104 NULLITIES OF MARRIAGE, [BOOK III. inconsistent with truth and sincerity; and may be, and often are, productive of serious mischief; they partake of the nature of fraud, and a marriage grounded on them is, in a sense, a fraudulent contract. If the phrase be taken in this large sense, the statute would degrade the marriage contract, which, in its original design and institution, was to continue indissoluble during the joint lives of the correlates, and which is a main pillar on which society itself is founded, to a level with the most trifling bargains. The legislature can never be intended to do this.” Therefore, after deciding that the statute did not refer to the fraud thus pointed out, but to such as the books of law already recognized as invalidating the marriage, the court held further, that a decree annulling the relation on this ground could not be granted to a woman, who, being with child, had caused the putative father to be arrested under the bastardy process; and he, for the sole purpose of procuring his discharge from the arrest, had married her with the intent of immediately deserting her, which intent he had carried into execution! It is in place’ 1 Benton v. Benton, 1 Day, 111. While this case, so far as stated in the text, may perhaps be correct, some observations fell from the judge clearly erroneous. He said: “‘ The phrase, fraudulent contract, as applied to the subject of marriage and divorce, in tle books, has obtained an appro- priate and technical meaning; and is taken to imply a cause of divorce which existed previous to the marriage, and such a one as rendered the marriage unlawful ab initio; as consanguinity, corporal imbecility, or the like; in which case, the law looks upon the marriage as null and void, being con- tracted in fraudem legis, and decrees a separation @ vinculo matrimonii.” And therefore, upon the ground of fraud, the courts of Connecticut have taken jurisdiction to grant divorces for impotence. Ferris v. Ferris, 8 Conn. 166. But they appear to overlook entirely the class of frauds which we are considering in this chapter. Now it is not easy to see how fraud is involved in a marriage within the prohibited degrees of consanguinity. Im- potence may be regarded as a species of fraud in law; yet, according to the ‘better doctrine, courts of equity, though they will set aside marriages procured by fraud where there is no other competent jurisdiction, will not on the ground of fraud, divorce parties for impotence. Burtis v. Burtis, Hopkins, 557; Perry vPerry, 2 Paige, 501; ante, § 22; post, § 264. Upon this matter, Tags Reeve, of the same State of Connecticut, has observed : “Certainly if nothing more was meant by the term fraudulent contract [ 100 ] CHAP. VI.] FRAUD, ERROR, DURESS. § 105 however to observe of this decision, that, though the lan- guage above quoted is correct as an exposition of the doctrine of fraud, still, according at least to the Scotch law, as expounded in our last chapter, if the marriage were not formally celebrated, and perhaps if it were, the absence of intent to marry, it not having been afterward consummated, would render it void. § 105. Ifa woman who has been defiled pretends to be a virgin, and a man marries her on his faith in this pretension, [in the statute] than imbecility, it is a very awkward expression to convey that precise, definite idea, which is affixed to the term imbecility. If the legislature meant to convey the same idea by the term which it ordinarily imports, I apprehend it was a very natural provision. If it be founded in justice, that the contracts which represent ordinary matters should be treated as void, when obtained by fraudulent practices, why then should a contract, the most important that can be entered into, be deemed inviola- ble, when obtained by such fraudulent practices? A man, by the foulest fraud, gets possession of the property of his neighbor. A contract thus basely obtained is not only void, but, in many instances, the obtaining of it isa felony. The common sense of mankind must revolt at the idea, that, when a man by the same abominable fraud has obtained the person of an amiable woman and her property, the law should protect such, contract, and give it the same efficacy as if fairly procured. The truth is, that a contract which is obtained by fraud is, in point of law, no contract. The fraud blots out of existence whatever semblance of a contract there might have been. A marriage procured without a contract can never be deemed valid. There is no more reason for sanctioning a marriage procured by fraud, than one procured by force and violence. The consent is as totally wanting, in view of the law, in the former as in the lattér case. The true point of light in which this ought to be viewed, I apprehend, is, that the marriage was void ab initio; but it is necessary to have a divorce by the court, since the marriage has been celebrated, that all concerned may be apprised that such marriage has no effect. Upon the same principle that chancery decrees con- tracts unfairly obtained, void, all the apprehension that is created in the minds of conscientious men, of the illegality of separating husband and wife, is dissipated. If this view be correct, they never were husband and wife, one essential ingredient to the contract being wanting, namely, consent.” Reeve Dom. Rel. 206. But this view appears not to have convinced the tribunal of final resort in that State. Guilford v. Oxford, 9 Conn. 321, 327, 1 Ante, § 72, 75 a. 9* [101] § 105 NULLITIES OF MARRIAGE. [Book II. the marriage is nevertheless good, even though she is a com- mon prostitute! So if a woman, being with child, falsely tells a man the child is his, and he, believing this misrepre- sentation, marries her;? or, knowing it is not his, marries her 1 Rogers Ee. Law, 2d ed. 644; 1 Fras. Dom. Rel. 231; Ayl. Parer. 363; Swinb. Spousals, lib. 7, dis. 18, no. 170. The doctrine of the text, as far as it relates to the marriage of a common prostitute under representation of chastity, does not appear to rest upon a very firm basis of authority in this country and England ; though it is well settled in Scotland, and one cannot easily read the English books without being convinced of its being the doc- trine of the English courts also. See Perrin v. Perrin, 1 Add. Ec. 1, 2 Eng. Ee. 11; Reeves v. Reeves, 2 Phillim. 125, 127, 1 Eng. Ec. 208, 209; Graves v. Graves, 3 Curt. Ec. 235, 7 Eng. Ec. 425, 427; Best v. Best, 1 Add. Ec. 411, 2 Eng. Ec. 158; where it is held, that antenuptial incontinence is no ground of divorce. The English dicta, for I have found no decided case, seem all to have come down from Ayliffe, who states the doctrine in terms not very conclusive in themselves, and still further weakened by the fact, that he is seldom to be relied upon to sustain, alone and uncorroborated, a doubtful proposition. His “ Parergon Juris Canonici Anglicani” is made up very much of the disquisitions of the Roman canonists, which had no binding force in England. See ante, §11. It has been strongly urged against this doctrine, that chastity cannot be discovered before marriage, while every other personal quality can. Mr. Page supposes, that, under the statute of Ohio, the courts would set aside such a marriage as we are considering ; but he rests his opinion merely on the reason of the thing, not on authority. Page on Div. 161. On principle however it would seem, that, if a woman has been a common prostitute, and has reformed, though she conceals by artifice her former misconduct, the marriage should be good. This, indeed, follows from the well-settled doctrine, that antenuptial incon- tinence is no ground for divorce. Otherwise a woman of strong passions, led astray by them, could have no hope of reform; but the law should en- courage virtue. See Scroggins v. Scroggins, 3 Dev. 535, 545. So the law should presume, from the fact of marriage, that the woman had abandoned unlawful pleasures. In this country, where divorces a vinculo are granted for adultery, it is of little consequence whether the marriage of an unre- formed prostitute, to a person whom she deceives as to her character, is to be deemed void from the beginning, or not; since it would be annulled on proof of the subsequent adultery. There seems, therefore, to be no urgent reason here for holding the marriage under consideration void, — a doctrine which would merely render innocent children illegitimate. And see post, § 118; ante, § 101 and note. * Moss v. Moss, 2 Ired. 55. See also Frith v. Frith, 18 Ga. 273. [ 102] CHAP. Vi.] FRAUD, ERROR, DURESS. § 105 to avoid a prosecution, but afterward comes in possession of the means of proving his innocence; still the marriage is good. Neither, it seems, is the case different, if she, being a white person, is pregnant of a mulatto child, and conceals from the man, also white, the fact that she received a negro’s embraces about the time of receiving hist Where, in the case last put, no active measures were taken by the woman to deceive, the marriage was held to be valid.2 But where, in the circumstances thus mentioned, the child had been born, and she knew it to be a mulatto, yet swore it upon the white man, and took out a bastardy process, on which she had him arrested; to avoid which process, under the belief of being the father, he married her; the marriage was set aside as procured by fraud. “If,” said the Chancellor, “the child had not been born at the time of marriage, the complainant would have had some difficulty in showing that he had been inten- tionally deceived and defrauded by the defendant, as she might possibly have supposed the child to be his, although | she had also had connection with a negro about the same time.”® Also it has been held, that, if a pregnant woman, representing herself to be virtuous, takes measures to conceal her pregnancy, and so induces a man to marry her, he may have the marriage set aside for her fraud. Thus the court decided in a case so adroitly managed that the first suspicion the man had was awakened by the appearance of a full-grown babe, three weeks after his marriage; whereupon he left her, and brought his suit. A recent Texas case goes to the very great length, that, where a gitl, fifteen years and seven months Scott v. Shufeldt, 5 Paige, 48. And see Hulings v. Hulings, 2 West. Law Jour. 131. 2 Scroggins v. Scroggins, 3 Dev. 535. 5 Scott v. Shufeldt, supra. * Morrjs v. Morris, Wright, 630; s. ep. under a statute authorizing di- vorces in the discretion of the court, Ritter v. Ritter, 5 Blackf. 81. Ifa woman pretends to a man that she is pregnant by him, and she is not preg- nant at all, but he marries her believing her representation to be true, he cannot have the marriage set aside for this fraud. Hoffman v. Hoffman, 6 Casey, 417. [108 ] § 107 NULLITIES OF MARRIAGE. [Boox III. old, had, without the consent of her parents, permitted herself to pass through the forms of matrimony with a man who produced a license he had procured by forgery, and she had never yielded to the consummation of the marriage, it might be set aside, on her application, for his fraud. The doctrine was even laid down, that this was so,,whether, in matter of law, a certificate, or any regular solemnization, is essential, or not, to constitute marriage. § 106. The cases before mentioned are not only too few in number, but they depend too much on their individual cir- cumstances, and on the particular opinions of the judge pro- nouncing the decision, to enable us to draw from them more than the general doctrine, that sometimes marriage may be set aside for fraud in its institution. Perhaps they teach us also, what is certainly true in principle, that the relation which the defrauded party sustains to third persons whose influ- ence is, or is supposed to be, brought to bear on the mind of such party, such party’s age and mental capabilities and qual- ities,? and unnumbered things within and without, are proper to be taken into the consideration. This latter proposition is illustrated in the following case. § 107. Wakefield’s case, otherwise termed Miss Turner’s nullity of marriage bill, turned chiefly on fraud and conspiracy, though partaking slightly of the element of duress. There a girl of fifteen, having large expectations of fortune, was en- veigled away from her boarding-school on the false represen- tation, that her mother, being attacked with dangerous sickness, had sent for her. The conspirators having obtained thus the control of her person, induced her to marry one of them, by a series of fraudulent representations, the chief of which were, that her father had become bankrupt, was flying from his house in great distress to evade the pursuing bailiffs, while the only mode of escape for him was in her marrying 1 Robertson v. Cole, 12 Texas, 356. 2 See post, § 116, 120. ‘ [ 104] CHAP. VI.] FRAUD, ERROR, DURESS. § 108 the conspirator, and thereby obtaining, in a manner pointed out to her, power over the estates. A pretended message from her father was also communicated to hasten her decision. After the marriage, and before consummation, she was traced out, and rescued by her friends. “ Why did you consent?” she was asked, while testifying in a criminal prosecution against the conspirators. From “the fear, that, if I did not, my papa would be ruined.” The conspirators were convicted in the criminal court; and the marriage was declared void by act of parliament, to which her friends resorted merely in con- sequence of the rule of law which would have rendered her testimony inadmissible in the ecclesiastical tribunal. § 108. Looking, therefore, after the facts of the several cases, as furnishing us with most of the light derivable at present from adjudication, let us make an exploration into the Scotch law. 1 Rex v. Wakefield, 69 Annual Register, 316, 47 Edin. Rev. 100, 2 Lewin, 279, 2 Townsend St. Tr. 112, Deac. Crim. Law, 4; Turner’s Nullity of Marriage Bill, 17 Hans. Parl. Deb. N.s. 11383; Shelford Mar. & Div. 215; 1 Fras. Dom. Rel. 234. The reason stated in the text for applying to Par- liament is the one assigned by Mr. Peele, as shown in the place above cited from the Parliamentary Debates, together with the further reason of the delay of perhaps three years attendant upon a proceeding in the Ecclesias- tical Court. Mr. Peele considered, that the facts, if proved before an Eng- lish court, would be sufficient to authorize a sentence of nullity; but the Scotch lawyer who was examined on the trial of the criminal case — this being a Gretna Green marriage between English parties — was of the opin- ion, which appears to have been erroneous, post, § 109, that, by the law of Scotland, a' marriage could not be set aside for fraud. The writer in the Edinburgh Review above cited, after-making many well-considered obser- vations upon the subject of frauds as invalidating the marriage contract, concludes his review of this case thus: “ Upon the whole, therefore, though there are many difficulties in the question, we incline to think that the mar- riage would not have been set aside in any court, either of England or Scotland.” p.107. But see contra Irving Civ. Law, 102, note. See also Field’s Marriage Annulling Bill, 2 H. L. Cas. 48; Hull v. Hull, 15 Jur. 710, 5 Eng. L. & Eq. 589. For some analogous cases, see Townsend’s State Trials, as above cited. [105] § 110 NULLITIES OF MARRIAGE. [BooK III. § 109. The following is what Mr. Fraser has on the sub- ject, with his citations: “Fraud,” he says, “in the consti- tution of the contract of marriage, renders it void. Force implies physical constraint of the will; fraud, some over ruling moral necessity, whereby a certain state of the will is brought about, which would not have so been without deceit. In both cases the result is the same, although the constraint employed operates differently... And as to both, morality and law visit the deed with the same condemnation. It is the law of Scotland, that a marriage brought about by false and fraudulent representations is null. This doctrine was denied by Mr. M’Neill at the trial of the Wakefields; but it will be found to be sanctioned by various judgments of the court. , § 110. “No attempt will here be made to define what shall . amount to fraud sufficient to set aside the marriage, as no two cases on this subject, are alike. Lord Stair terms fraud hydra multorum capitum. In Cameron v. Malcolm? a young lady, aged twelve years and six months, the daughter of a proprietor in Fife, had gone through a form of marriage with John Cameron, a young man of twenty-two, the son of a neighboring proprietor. It appeared that the girl had a con- siderable fortune, which Cameron wished to secure, his awn father being in laboring circumstances; and accordingly he made proposals of marriage to her mother, who put the mat- ter off by urging the youth of her daughter; recommended him to go abroad for some time, and on his return, stated that she had no doubt the marriage would be agreed to. The parties, some time after this, agreed to come over from Fife to Edinburgh, and this they did together; but not a word was said of marriage, or of an intention to enter into that 1 Voluntati vim infert, qui fraude persuadet, says Brower. ? M. 12586, (1756). This statement of the case brings out the fraud which existed. It has been taken from the Session-papers, as that in the dictionary makes it seem entirely a mere squabble. [ 106 ] CHAP. VI.] FRAUD, ERROR, DURESS. § 111 contract. On arrival at Leith, Mrs. Malcolm, the girl’s mother, sent up her servant-maid and a boy to Edinburgh, to put on fires, and prepare every thing for her reception; but she pro- posed to keep the governess to go up in the coach with her- self and daughter. But, as the elder Cameron, his wife, and son, had determined to get the marriage celebrated that night, they foresaw that the presence of the governess in the coach would baulk the scheme; Mrs. Cameron accordingly objected to her presence, and she was accordingly sent off with the other two servants. The company were then brought to the house of Mrs. Cameron’s mother, where they drank tea; and, after tea, Mrs. Malcolm and her daughter staid, on Mr. Cam- eron’s suggestion, to supper, the excuse being, that their own house would not yet be ready to receive them. Immediately after supper, young Cameron went for the Episcopal minis- ter to marry them; there was no proclamation of banns. From some nnexplained reason, the mother of the young woman then left the room. The parties shortly after came to the room where her mother and his father were sitting, when young Cameron said that the girl had consented to marry him, a proceeding to which the mother would not agree. The minister deponed, that the mother said that she gave her consent freely. But*she immediately left the room, and would not be present at the ceremony. Thereupon the two parties were married, both of them audibly repeating the words of the office as they were directed. But the confusion and terror of the young woman was such, that, after she had repeated the responses as directed by the service, when the minister proceeded to read the prayers, she repeated them also, until the minister stopt her. The marriage being over, a bedding was proposed. But the mother now came in, objected to this, and immediately carried off her daughter, in spite of the remonstrances of the Camerons. § 111. “The court were all of opinion, with the exception of one judge, that there was no marriage, as the whole pro- ceeding was a fraudulent, deceitful scheme, to entrap a young girl into a marriage, who, though apparently consent- [ 107 } §112 NULLITIES OF MARRIAGE. [Book mI. ing to it, did not know what shé was doing. The opinions of the court are stated-in detail on the Arniston Session- papers. -§ 112. “ Another case is stated by Lord Fountainhall,! thus: ‘One Niven, a musician in Inverness, is pursed for deceiving one of his scholars, a lass of twelve years old, called Cumming, a minister’s daughter, and marrying her, and get- ting a country minister to do it, by suborning one to call himself her brother, and to assert to the minister that he con- sented. This being an abominable imposture, and theft, and a perfidious treachery, having a complication of many villa- nies in it, he was sentenced, for an example, to stand at the pillory, with his ear nailed to the Tron, then to be banished, which was done.” This was a decision of the Privy Council, and not of the Court of Session. The same doctrine was further confirmed by the case of Allan v. Young,? which was the case of a declarator of marriage by a schoolmaster against a young woman. While a pupil of his, and only thirteen years of age, she had, by presents and flattery, been enticed to his house, where he succeeded in getting a clergyman to perform the marriage ceremony, there being no previous proc- lamation of banns, though a certificate thereof had been pur- chased by the pursuer. The clergyman proved, that he had taken her into another room, before the ceremony, and satis- fied himself that she understood the nature of the duties and engagements she was about to undertake, and had deliber- ately resolved to marry the pursuer; and that, at the cere- mony, she made her responses firmly and clearly. The girl’s mother, after the ceremony, seemed at first to acquiesce, but in the evening rescued her, and carried her off.. The commis- saries dismissed the action, and the Court of Session con- firmed the sentence. * Reported also at p. 8935, Morrison’s Note. * Allan v. Young, 9 Dec. 1773, Ferg. Rep. p. 87. See English cases to the same effect in Shelford Mar. & Div. 134, 187, 214. [108 ] CHAP. VI.] FRAUD, ERROR, DURESS. § 114 §118. “These were all cases where the fraud was prac- tised upon parties who were certainly capable of marriage, but who, from their youth, were peculiarly liable to be de- ceived. There are, however, cases where, with regard to | persons of mature age, fraud in obtaining the consent to the contract has been held sufficient to annul the pretended mar- riage. The cases in which this has been sustained are of this nature: The woman generally gets the man into some retired place, for the purpose of carnal connection, and there, before this is allowed to proceed, she obtains from him a promise of marriage, and copula immediately follows. She has, at the same time, two or three witnesses stationed so as to hear the promise, but concealed from the man. The consent here has been obtained in @stu amoris, without any intention on his, part, she well knowing it, of entering into marriage, and where, if he had known that there were witnesses to the transaction, he would not have made the promise. ‘The mar- riage, therefore, being brought about by the fraudulent con- trivance of the woman, the court have refused, in such cases, to sustain it. §114. “The law was laid down by Lord Stair, as applica- ble to marriage, before he had decisions of the court to guide him. ‘If? he says, ‘any one married Sempronia, supposing her to be a virgin, rich or well natured, which were the induc- tives to his consent, though he be mistaken therein, seeing it is not in the substantials, the contract is valid. But if the error or mistake, which gave the cause to the contract, were by the machination, project, or endeavor of any other party than the party errant, it would be circumvention”? And Mr. Fergusson says, that, ‘when it can be fully established by evi- dence that the apparent consent by either is not of the qual- ity requisite, but has been extorted or gained by force, or fraud, 1 Barr v. Fairie, 12 Feb. 1766. See it in Sess. Papers, Arniston Col- lection, vol. Ixxvii. and shortly noticed, 5 Sup. 921. Harvey v. Inglis, 19 Feb. 1839. ® Stair, 1, 9, 9, & 1, 10, 13, 3d paragraph; Ersk. 3, 1, 16. 10 [ 109} § 115 NULLITIES OF MARRIAGE. [BOOK III. so as not to be free and genuine, the contract, on this ground, although as to form completed by parties both legally capable, may likewise be set aside, as void ab initio, by regular and . timely challenge, at the instance of the party thus unlawfully compelled or deluded’! ‘Fraud, says Pothier, ‘is no less contrary to freedom of consent, required for marriage, than is violence: a consent impetrated by fraud and deceit (seduction) is as imperfect as that obtained by violence.’ ” 2 § 115. So much for the law of Scotland. To return to our own law: if a person of bad character, to enter into a mar- riage, assumes the name of a person of good character, and the other party does not therefore marry the individual he in- tends, the marriage is a nullity. But if he marries the one he intends, it is good, though such one passes under an as- sumed name.t In the latter instance there is consent to take the individual with whom the ceremony is performed; in the former, there is not such consent From the like want of consent the courts hold, that, if one knowing the law entraps another ignorant of it into a ceremony valid in form, before a magistrate or minister of the gospel, under the representation of its not being binding, which representation is believed; and if the party deceived does not intend it shall be followed by cohabitation without a further public ceremony, and itis not 1 Ferg. Consist. Law, p. 107. 2 Pothier Tr. Cont. Marriage, § 320; 1 Fras. Dom. Rel. 234-237. 5 Rex v. Burton-upon-Trent, 3 M. & 8. 537; Lord Stowell, in Heffer v. Heffer, 3 M. & S. 265. * Clowes v. Clowes, 3 Curt. Ec. 185, 191. * The impetuous mind of Lord Brougham once led him to utter, in the Court of Delegates, the following dictum : “ It should seem indeed to be the general law of all countries, as it certainly is of England, that, unless there be some positive provision of statute law requiring certain things to be done in a specified manner, no marriage shall be held void merely upon proof that it had been contracted upon false representations, and that, but for such con- trivances, consent never would have been obtained. Unless the party im- posed upon has been deceived as to the person, and thus has given no con- sent at all, there is no degree of imposition which can avail to set aside a contract of marriage knowingly made.” Swift v. Kelly, 3 Knapp, 257, 293. [110] CHAP. VI.] FRAUD, ERROR, DURESS. § 116 4 so followed; the marriage is void. And the remark has been made, that there may be extraordinary cases in which such a marriage would be invalid after consummation. § 116. The amount of fraud, which will invalidate a mar- riage, must depend somewhat upon the qualities of the mind on which it is practised.2 Thus in a mixed case of fraud and mental imbecility, Sir John Nicholl observed: “ Nor am I pre- pared to doubt, but that considerable weakness of mind cir- cumvented by proportionate fraud will vitiate the fact of mar- riage, whether the fraud is practised on his ward by a party who stands in the relation of guardian, as in the case of Har- ford v. Morris, which was decided principally on the ground of fraud’ or whether it is effected by a trustee,” which was the case before the court, “ procuring the solemnization of the martiage of his own daughter, with a person of very weak mind, over whom he has acquired a great ascendency. A person incapable from weakness of detecting the fraud, and of resisting the ascendency practised in obtaining his consent to the contract, can hardly be considered as binding himself in point of law by such an act.” And therefore the pretended marriage in this case was ultimately set aside II. Error. § 116 a. The question of error or mistake, as invalidating a marriage, has already been referred to, in connection with fraud’ If we look at this matter in the light of principle, we 1 Clark v. Field, 13 Vt.460. Sce also Robertson v. Cowdry, 2 West. Law Jour. 191, 1 S. W. Law Jour. 167; Mount Holly v. Andover, 11 Vt. 226; ante, § 83. 2 See ante, § 106. ® Harford v. Morris, 2 Hag. Con. 423, 4 Eng. Ec. 575. Sir W. Wynne said, this case was decided “ on the ground of force and custody.” See note at the end of the report. * Portsmouth v. Portsmouth, 1 Hag. Ec. 355, 3 Eng. Ec. 154, 156. 5 Ante, §115. [111] § 118 NULLITIES OF MARRIAGE. [Book III. shall be led to the following conclusion: Inasmuch as there must be a consent in order to constitute marriage, if there is such a mistake, in one or both of the parties, that the formal consent given does not apply to the person with whom the formal marriage is celebrated, then the miarriage is a mere nullity; but, if it does apply, then the marriage is good, un- less fraud has entered into the matter of mistake, in such a way as to render it invalid on this ground. § 117. An illustration of mistake or error is where one per- son is substituted for another. “ This,” remarks Chancellor Kent, “would be a palpable fraud;” and he adds, that “ it would be difficult to state a case in which error simply, and without any other ingredient, as to the parties or one of them in respect to the other, would vitiate the contract.”1 Still, though it may be difficult to imagine how a person intending to marry A., could, without a fraud being practised upon him, marry B., yet, if the fact were established, there is no doubt the marriage would be held invalid2 And Lord Campbell puts the case of marriages in masquerade, where the parties are entirely mistaken as to the persons with whom they are united, as clearly void. §-118. The canonists, according to Ayliffe, reckon four spe- cies of error. First, error persone; as when I have thought to marry Ursula, but, by mistake of the person, I have mar- tied Isabella. An error of this kind renders the marriage void ; “ for deceit is oftentimes wont to intervene in this case, which ought not to be of any advantage to the person deceiv- ing another.”* Secondly, error of condition; as when I think to marry a free-woman, but through mistake marry a bond- woman. This will avoid the marriage. But if the condition * 2 Kent Com. 77. And see the cases of fraud in the name of the person, ante, § 115. ® Stayte v. Farquharson, 3 Add. Ec. 282; ante, §115. * In Reg. v. Millis, 10 Cl. & F. 534, 785. * See ante, §115. [112] CHAP. VI.] FRAUD, ERROR, DURESS. § 120 of the party were known, “the church did not dissolve such a marriage.” Thirdly, error of fortune; which does not in- validate the marriage. Fourthly, error of quality ; as where a man marries a woman believing her to be a chaste virgin, or of a noble family,’ or the like, but finds her to be deflowered and of mean parentage. This kind of error does not affect the validity of the marriage. “Nay,” adds our author, “the ca- nonists are so far from rescinding a marriage contracted with a strumpet, that the law makes it a matter of merit for a man to take an harlot out of the stews and marry her; because it is not the least act of charity, says the canon law, to recall a person going astray, from the error of her ways; but the true reason is, because the law allows of public stews.” + Ill. Duress. § 119. Where a consent in form is brought about by force, menace, or duress; a yielding of the lips, but not of the mind; it is of no legal effect. This rule, applicable to all contracts, finds no exception in marriage. Neither apparently do the legal principles governing the question of duress operate dif ferently in their application to marriage, from what they do in their application to other contracts generally. i § 120. Let us, however, consider the matter of duress in its relation specifically to marriage. The observation has been made, that, in order to avoid a marriage yielded to through fear, the fear must be such as may happen to a man or woman of good courage and resolution, and such as im- 1 Ayl. Parer. 362, 363; ante, § 105. 2 Ante, §99; 1 Woodd. Lect. 253; No. 39 Am. Jurist, 29; Shelford Mar. & Div. 213. 3 Ruth. Inst. b.1,¢. xv. For the general principles of the law of duress, see Chitty on Contracts, 206-209 ; Story on Contracts, § 87-98 ; No. 39 Am. Jurist, 23-29. 10* [113] A § 121 NULLITIES OF MARRIAGE. [Book II. ports danger either of death or of bodily harm.1. But probably the better view is, that this question is one of evidence; that, since matrimony must be contracted with full and free con- sent, if a woman void of courage and resolution is in such a state of mental terror as not to know what she is about, while another more heroic would have remained undaunted, still there is the same want of consent, and the marriage is as completely invalidated, as though she had possessed a firmer courage, overawed by a more imminent danger.2 And the cases most likely to arise are where a woman of weak and irresolute mind, or a young and timid girl, possessed of a for- tune to be secured, is entrapped and impelled into a mar- riage, by a degree of fraud and force utterly inadequate to overcome a person “of good courage and resolution.” Such was the leading case of Harford vy. Morris, decided on the double ground of fraud and duress; where one of the guar- dians of a young school-girl, having great influence and authority over her, took her to the continent, hurried her there from place to place, and married her substantially against her will. The marriage was held to be void The case, already cited,’ of Wakefield, who married Miss Turner, was also thought to contain some of the ingredients of force, and it isin point.§ § 121. If a man, arrested under bastardy process as the putative father of a child of which the woman procuring the arrest is pregnant, marries her;’ even though, being unable 1 Ayl. Parer. 362. 2 Fulwood’s case, Cro. Car. 482, 488, 493. 3 And see ante, § 116. * Harford v. Morris, 2 Hag. Con. 423, 4 Eng. Ec. 575, and see note at the end of the case. 5 Ante, § 107. ® See the act of parliament annulling the marriage, Shelford Mar. & Div. 215, note. See also Portsmouth v. Portsmouth, 1 Hag. Ec. 355, 3 Eng. - Ec. 154, which was a case of fraud and lunacy in combination. And see ante, § 103 d. 7 Jackson v. Winne, 7 Wend. 47. [114] CHAP. VI.] FRAUD, ERROR, DURESS. § 123 to procure bail, he does it purely to avoid being imprisoned, and compelled to contest the charge she has made oath to; he cannot afterward, on learning he could have made a suc- cessful defence, have the marriage set aside as procured by duress.1 -Perhaps the result would be otherwise, if the arrest were under a void process; and a doubt may be entertained, whether it would not be, if shown to be both malicious and without probable cause.” IV. Some Principles Common to the three Impediments. § 122. There are various principles applicable alike to fraud, error, and duress. Thus we may presume, that the party guilty of the wrong would not be permitted so far to take advantage of it, as to maintain a suit of nullity solely on that ground.® The other party may, if he choose, waive his objec- tion, and thereby render the marriage good. Therefore a vol- untary cohabitation, after knowledge of the fraud or error, or after the cause of fear is removed, will cure the defect. The cases are not distinct as to the circumstances under which, in fraudulent marriages, cohabitation, with knowledge of the fraud, will bar the right to have the marriage set aside ; but doubtless the matier must be referred to general principles of law relating to such ‘questions® We may notice, that the fact of the marriage not having been consummated has in many cases powerfully influenced the court in favor of setting it aside. § 123. In a certain aspect, therefore, the marriages con- 1 Scott v. Shufeldt, 5 Paige, 48. Ante, § 105. 2 Story Cont. § 88, 89; No. 39 Am. Jurist, 23, 24. See also Soule v. Bonney, 37 Maine, 128. 5 See The State v. Murphy, 6 Ala. 765. * Ayl. Parer. 361; Scott v. Shufeldt, 5 Paige, 43; 1 Fras. Dom. Rel. 229 ; 1 Burge Col. & For. Laws, 137. 5 See Scott v. Shufeldt, supra; Clark v. Field, 138 Vt. 460; Morris v. Morris, Wright, 630. [115] § 128 NULLITIES OF MARRIAGE. [BOOK IIL. sidered in this chapter are voidable, rather than void; though generally they are spoken of as void marriages. They are good at: the election of the injured party, who, on being set free from the influence of the fraud, error, or duress, may then give a voluntary consent; and the other party cannot interpose the objection of his own wrong, that the consent was not mutual. And Rogers has treated of these marriages under the head of voidablet But, until such innocent party has consented, the transaction is incomplete, and the cere- mony is to be regarded as a mere nullity. This view is sus- tained as well by the authorities? as by reason. 1 Rogers Ec. Law, 2d ed. 643. * Respublica v. Hevice, 8 Wheeler Crim. Cas. 505, 507; Tarry v. Browne, 1 Sid. 64; Fulwood’s case, Cro. Car. 482, 488, 493; Shelford Mar. & Div. 212, note; 2 Kent Com. 76; 1 Burge Col. & For. Laws, 137. And see ante, § 55, 62; post, § 188-190. [116 ] CHAP. VII.] MARRIAGE UNDER CONFLICTING LAWS. § 1244 CHAPTER VII. MARRIAGE CELEBRATED UNDER CONFLICTING LAWS. Sxcr. 124, 124a. Introduction. 125-181 a. Doctrine of Marriage good where Celebrated everywhere so. 132-141. Doctrine of Marriage invalid where Celebrated everywhere so, 142-151. General Views and further Unfoldings of these Doctrines. § 124. Pursurne the course already indicated) we come now to consider the great questions growing out of what is termed the conflict of laws relating to marriage. Suppose parties, being in one country, are married according to forms established there by law, but not according to forms made essential in another country; or suppose the forms pursued are such as the laws of the latter country make necessary to mar- riage, but are not according to the laws of the former coun- try; or suppose, by the laws of one country, the parties are capable of intermarrying, but not by the laws of the other country, — how, in these and other like circumstances, is the marriage to be regarded in the two countries severally?’ This is the matter for discussion in our present chapter. § 124. We shall divide this matter into the following sub-titles: I. The Doctrine of Marriage good where Cele- brated everywhere good; II. The Doctrine of Marriage in- valid where Celebrated everywhere invalid; III. General Views and further Unfoldings of these Doctrines. 1 Ante, § 44. [117] § 125 NULLITIES OF MARRIAGE, [BOOK III. I. The Doctrine of Marriage good where Celebrated every- where good. § 125. Marriage, being an institution pervading all human society, and recognized alike in the law of nature and in the municipal law of every country, is necessarily taken notice of by the international law, which regulates the relations of States with one another. From this proposition springs the doctrine, that, whenever the tribunals of one country hold parties to be married, those of another country hold them married also. This doctrine is essential to the very existence of marriage, viewed as an institution of international law; because, if the tribunals in one jurisdiction should declare parties to be married, and those in another should declare them not to be married; if in one national domain persons should be deemed to be united in pairs in a certain way, and in another the pairs of the same persons should be differently made up; there would be an end of the harmony essential to the existence of either international marital law, or the ‘comfort or even safety of persons going from one country to another. The general principle has therefore been settled, that a marriage valid by the law of the country in which it is celebrated, though the parties are but transient persons, though it would be invalid entered into under the same formalities in the place of their domicil, and even though contracted in express evasion of their own law, is good everywhere! This doctrine, in its broad extent, has indeed ? Story Confl. Laws, § 79-81; Compton v. Bearcroft, Bul. N. P. 114, 2 Hag. Con. 430, 448, 4 Eng. Ec. 578, 585; Scrimshire v. Scrimshire, 2 Hag. Con. 395, 4 Eng. Ec. 562; Herbert v. Herbert, 2 Hag. Con. 271, 4 Eng. Ec. 534, 8 Phillim. 58, 1 Eng. Ec. 363; Sutton v. Warren, 10 Met. 451; Com- monwealth v. Hunt, 4 Cush. 49; Swift v. Kelly, 3 Knapp, 257; Lacon v. Higgins, 3 Stark. 178 ; Morgan v. McGhee, 5 Humph. 18, and Wall v. Wil- liamson, 8 Ala. 48, where the rule was held to apply to marriages contracted in an Indian nation; Patterson v. Gaines, 6 How. U. 8. 550; Phillips v. [118] CHAP. VII.] MARRIAGE UNDER CONFLICTING LAWS. § 125 - been questioned, not only by continental jurists,! but by very able English judges. Thus, Sir George Hay, in Harford v. Morris, considers, that a mere transient residence in a country, by going there one morning and coming away the next, is not sufficient to give the local law cognizance of the mar- riage; but that there must be a domicil, and that under some circumstances even a domicil is not sufficient.2 And it has been further attempted to weaken the force of the general proposition, as sustained inthe earlier English authorities, by the suggestion, that Scotland and places beyond the seas are excepted from Lord Hardwicke’s English marriage act ;° and therefore, that marriages in Scotland and beyond the seas, good by the local law, were, while this act was in op- eration, good by force of the exceptive clause in it* Still, whatever doubts may have arisen on the subject, the doctrine in its broad terms, as first above stated, is now well estab- lished, at least in America, probably also in England’ It covers both the forms by which the marriage is contracted, and, subject to an exception or two to be mentioned by and by, the personal capacity of the parties to enter into mar- riage.® Gregg, 10 Watts, 158; Fornshill v. Murray, 1 Bland, 479; Dumaresly v. Fishly, 3 A. K. Marshall, 368; Ferg. Consist. Law, 20, 28, 29; 1 Burge Col. & For. Laws, 184, 187; 2 Roper Hus. & Wife, by Jacob, 496; Lord Brougham, in Warrender v. Warrender, 9 Bligh, 89, 111; Munro v. Saun- ders, 6 Bligh, 468, 473, 474; The State v. Patterson, 2 Ired. 346. 1 2 Kent Com. 91. ° Harford v. Morris, 2 Hag. Con. 423, 4 Eng. Ec. 575. See also the re- marks of Lord Mansfield in Robinson v. Bland, 2 Bur. 1077, 1079. 5 26 Geo. 2,c.33. This statute, after making certain regulations concern- ing marriage, the non-compliance with most of which regulations renders it void, adds, in §18, “ That nothing in this act contained shall extend to that part of Great Britain called Scotland, ..... nor to any marriages solemnized beyond the seas.” The present English marriage act differs from this in the respect now under consideration. See Brook v. Brook, 3 Smale & G. 481. * Harford v. Morris, supra; 1 Burge Col. & For. Laws, 192. ° See the cases cited in the first note to this §, and particularly Compton v. Bearcroft; Story Confl. Laws, § 123 a. 6 1 Burge Col. & For. Laws, 188, 199. [119] § 127 : NULLITIES OF MARRIAGE. [BOOK III. § 126. It was therefore held by the Supreme Court of Mas- | sachusetts, that, where parties who by a statute of the State were incapable of contracting matrimony with each other, because of one of them being a white person and the other a negro, went, for the purpose of evading the statute, into Rhode Island where such connections were allowed, and were mar-, ried there and immediately returned,—the marriage, being good in Rhode Island, was good in Massachusetts! So where a man and woman, residing in Massachusetts, the laws of which State prohibit the guilty party after a divorce from en- tering into another matrimonial connection, went, in order to evade this provision, into Connecticut, after he had been di- vorced in Massachusetts from his wife for his adultery, and were married in Connecticut and immediately returned to Massachusetts, the marriage was held in the latter State to be good? §127. The judgment of Dr. Lushington in Conway v. Beazley is not opposed to these decisions, though the report- er’s note of the case seems to represent it so. According to the note, “the lex loct contractés, as to marriage, will not pre- vail where either of the parties is under a legal incapacity by the law of the domicil.” But the case itself merely decides the very plain point of law, that a Scotch divorce of English parties, married in England and likewise domiciled there at the very time of the divorce, is void; and that, as a necessary consequence, a second marriage of one of them is void; though celebrated in Scotland, and though probably the Scotch courts would hold the divorce valid, and the marriage there- fore good The courts of no country in which polygamy is not tolerated can allow a man to have two wives at the same time ; and, if a tribunal is compelled, by the principles of juris- 1 Medway v. Needham, 16 Mass. 157.’ So on this point as to Louisiana law, post, §129 a. * Putnam v. Putnam, 8 Pick. 433 ; Cambridge v. Lexington, 1 Pick. 506. This rule has been since modified in Massachusetts by statute. Post, §148. ® Conway v. Beazley, 3 Hag. Hc. 639, 5 Eng. Ec. 242. [ 120 ] CHAP. VII.] MARRIAGE UNDER CONFLICTING LAWS. . §128 prudence governing it, to pronounce a particular divorce void, it must declare a second marriage of either of the parties to be void also, whether such second marriage were celebrated at home or abroad.! § 128. Mr. Burge, in his Commentaries on Colonial and Foreign Laws, appears to regard the adjudication in Conway v. Beazley as being in conflict with the Massachusetts cases ; and he deems it “the more sound decision.” He maintains, that the doctrine of the lex loci ought not to be extended to make valid the marriage, where the party retains his domicil in the country in which the prohibitory law prevails, and merely resorts to another country for the single purpose of evading the law of his own. In this view he is sustained by Huber, perhaps also by some other continental jurists, and countenanced by the case of Harford v. Morris ;? but, the case of Conway v. Beazley failing him, he is substantially unsup- ported by any English or American authority. And on the point of common law authority he merely contends, that the English cases may be explained away by the view, before al- luded to,3 of the marriage act. Mr. Justice Story considers, that, whether the argument drawn from the English marriage act is tenable or not, the opposite doctrine to what is main- tained by Mr. Burge clearly governed the adjudication in Compton v. Bearcroft ; and that the question is settled, in the 1 Story Confl. Laws, § 114; Burge Col. & For. Laws, 188; Lord Brough- am, in Warrender v Warvender, 9 Bligh, 89, 112, 2 CL & F. 488, 582. In an Alabama case it was intimated, that perhaps polygamous marriages con- tracted in a country where polygamy is allowed by law would, in a Chris- . tian country, be deemed good on collateral proceedings. “ A parallel case,” add the court, “to a Turkish, or other marriage in an infidel country, will _probably be found among all our savage tribes; but can it be possible that the children must be illegitimate, if born of the second or other succeeding. wife?” Wall v. Williamson, 8 Ala. 48, 51. * Harford v. Morris, 2 Hag. Con. 423, 4 Eng, He. 575; ante, § 125. ® Ante, § 125. * 1 Burge Col. & For. Laws, 190, 192, 194, 200. 11 [121] § 129 NULLITIES OF MARRIAGE. [Boox III. way indicated, both in England and America! Of the same opinion is Chancellor Kent? § 129. A recent North Carolina decision, however, deserves mention. There the Supreme Court, overruling the superior and confirming the county court, held, that, where parties, one of whom having been divorced for his own fault in North Caro- lina was therefore prohibited there by law from marrying again, went into the adjoining State of South Carolina, and inter- married and returned, in fraud as it was called of the law of their domicil, the marriage was null. But the marriage did not affirmatively appear, as a fact in the case, to be good in South Carolina; and the judge who pronounced the opin- ion supposed it was not good there. The statute of North Carolina had declared, that the defendant or party offending, divorced from the bond of matrimony, should never marry again; and that, in the event of his marriage, he should be subject to the pains and penalties provided for persons guilty of bigamy. And the court considered this statute to oper- ate as leaving the guilty party in the same position as if there had been no divorce; and so, “pro hac vice, the first marriage is still subsisting.” ? In this view, the case goes no further, at the utmost, than the one before mentioned of Con- way v. Beazley Neither the Tennessee decision in Dickson v. Dickson,> nor other like authorities, wherein all such pro- visions of law are shown to be mere penal prohibitions, leav- ing the party whenever he passes beyond the jurisdiction imposing them, while in the nature of things the divorce of the husband is the divorce also of the wife, whatever be the language of the statute on the subject, since no moxe can exist a wife without a husbafid than a valley without an ? 2 Story Confl. Laws, 3d ed. §123a, note. See Wadd. Dig. 236, note. 2 2 Kent Com. 92. * Williams v. Oates, 5 Ired. 535. .* Ante, § 127. ® Dickson v. Dickson, 1 Yerg. 110. , [ 122] CHAP. VII.] MARRIAGE UNDER CONFLICTING LAWS. § 1294 adjoining hill, — were not before the North Carolina court ; nor yet was any reference made to the before-mentioned Massachusetts decisions! What the result would have been if the attention of the court had been directed to these other cases and principles, we cannot know; yet passages in the report seem to indicate the opinion of the judges, that marri- ages should be held void whenever contracted in fraud of the law of the domicil. §129a. The foregoing cases assume as a fact, that the parties were not domiciled in the country where the mar- riage was celebrated, having resorted to it merely for the pur- pose of evading the law of their domicil. There are other cases in which, as already mentioned,? marriages of persons: in foreign countries, whether domiciled in those countries or not, will not be recognized as good by the courts of other countries. These cases depend on the necessity for every tri- bunal to pay some decent regard to the law of nature, and the inherent fitness of things. On this principle, the court of Louisiana has refused to uphold a marriage, entered into in France, between a free white person and a person of color. Perhaps the judge who pronounced the opinion deemed the case to present the element also of the importance of enforc- ing the statutory policy of his own State; for he said: “ Whatever validity might be attached in France to the singu- lar marriage contract, and subsequent unnatural alliance, there celebrated between the plaintiff and the deceased testatrix, it is plain, that, under the facts in evidence, the courts of Louisiana cannot give effect to these acts, without sanctioning an inva- sion of the laws, and setting at naught the deliberate policy, of the State.”? But, on broader grounds, in a slave-holding com- munity, or any other community in which lawful amalgama- tion of the black and white races by marriage is looked upon 1 Ante, § 126; post, § 657, 658. 2 Ante, § 58, 125, 127. 3 Dupre v. Boulard, 10 La. Ann. 411, opinion by Spofford, J. [123] § 130 NULLITIES OF MARRIAGE. [BOOK II1. as a violation of a first law of natuyre, alliances of this kind may be deemed too offensive to receive the sanction of the tribunals. And this observation points to the true reason of the distinction between the decision now contemplated and the Massachusetts one before stated. § 130. And the general doctrine is, that, where the foreign marriage is forbidden not only by the law of the domicil but by the law of nature also, as where, for example, it is incestu- ous by natural law, it is treated as void both in the courts of the domicil of the parties, and in those of all other countries.? Incest and polygamy furnish the principal exceptions, yet developed in the progress of jurisprudence, to the proposition that a marriage good where it is celebrated is good every- where’ It has also been intimated, what is no doubt true, that, if in the foreign country a matrimonial connection between persons destitute of mental capacity to enter into it should be deemed valid, it would not be so treated at home.* An incestuous marriage, within the meaning of the exception, is generally stated to be, not every marriage ‘forbidden on account of consanguinity or affinity, by the legislative enact- ments of the country in which its validity is drawn in ques- tion; for a State may prohibit, from motives of policy or from religious considerations, connections matrimonial between relatives not incestuous by natural law. “But by the law of nature,” says Chancellor Kent, “I understand those fit and just rules of conduct, which the Creator has prescribed to man as a dependent and social being; and which are to be ascertained from the deductions of right reason, though they may be more precisely known and more explicitly de- -clared by Divine Revelation.” 5 1 Ante, § 126. * Greenwood v. Curtis, 6 Mass. 358, 879; Sneed v. Ewing, 5 J. J. Mar- shall, 460, 489; Sutton v. Warren, 10 Met. 451. 3 Story Confl. Laws, § 113 a; ante, § 58, 127. * True v. Ranney, 1 Fost. N. H. 52. See post, § 144-150. 5 Wightman v. Wightman, 4 Johns. Ch. 343. [124]. CHAP. VIL.] MARRIAGE UNDER CONFLICTING LAWs. § 131 § 131, Still the question is an embarrassing one, what are the marriages prohibited as incestuous by the law of nature, It is universally agreed, that the prohibition includes all mar- riages between persons in the lineal ascending and descending degrees of blood relationship, and between brothers and sisters in the collateral line, whether of the whole or the half blood.t Yet whatever scruples may be entertained in regard to con- nections in the collateral line of consanguinity, between rela- tives further removed than brother and sister, the better opinion seems not to deem them incestuous by natural law.? Hence, as we had occasion to see in a previous chapter,? where in England a man married his mother’s sister, while such mar- riages were there merely voidable, not void; and the parties removed to Massachusetts, where they are absolutely void by statute; the marriage was held in Massachusetts to be good. At the same time, the parties would have been subject, in England, to be pursued criminally (as well as civilly) in the spiritual court, and by its sentence punished for the cohabi- tation as being incestuous ;* but, in declaring it so, the spirit- ual court would have followed the law of England as its rule of decision, not the law of nature. The statute 32 Hen. 8, c. 38, had provided, that all persons might marry, who, while being “without the Levitical degrees,” were “not pro- hibited by God’s law;”® yet no one would look to those degrees, more than to the Mosaic direction concerning the eating of flesh, as establishing a law of nature. Lord Brougham however, speaking of a marriage between an uncle and his niece, has observed: “I strongly incline to think that our courts would refuse to sanction, and would 1 Story Confl. Laws, § 114; 2 Kent Com. 83; 1 Burge Col. & For. Laws, 188. And see Butler v. Gastrill, Gilb. Ch. 156; Harrison v. Burwell, Vaugh. 206, 226. * Sutton v. Warren, 10 Met. 451; Wightman v. Wightman, 4 Johns. Ch. 343. 3 Ante, § 58; Sutton v. Warren, supra. * Burgess v. Burgess, 1 Hag. Con. 393. 5 Ante, § 49. 11* [125], §138la NULLITIES OF MARRIAGE. [Boox m. avoid by sentence, a marriage between those relatives con- tracted in the Peninsula, under dispensation; although, beyond all doubt, such a marriage would there be valid by the /ex loci contractés, and incapable of being set aside by ‘any proceeding in that country.” Whatever weight is to be given to this mere dictum of an eminent judge, the reader cannot fail to have perceived, that he only speaks of avoiding the marriage by sentence, not intimating its invalidity without sentence, —a point which did not arise, and was not dis- cussed, in the Massachusetts case. § 131 a. An English case, however, has just arisen, from which we. may infer that possibly the law in England may hereafter be held somewhat differently from the intimations in the foregoing sections. The case has received, as thus far re- ported in this country, only the attention of the Vice-Chan- cellor, Sir John Stuart, assisted by Mr. Justice Cresswell, late of the common law bench, and now presiding as judge ordi- nary over the matrimonial court. A man domiciled in Eng- land married abroad a sister of his deceased wife, the marriage being good in the country where it was celebrated ; but these learned persons held, that, under the English law as it stood at the time of the marriage and the decision, the marriage could not be recognized as validin England. That the reader may see the point presented, we may mention once more the statute of Hen. VIII.* which made lawful all marriages not prohibited by “ God’s law;” and observe, in advance, that, according to the construction of this statute given by the courts, the marriage of a man with the sister of his deceased wife is prohibited by “God’s law,” as being incestuous? Such a marriage, however, was voidable only, not void, until Stat. 5 & 6 Will. IV. c 54 (a. vp. 1835), provided, “ § 2. That all marriages which shall hereafter be celebrated be- ? Warrender v. Warrender, 9 Bligh, 89, 112; s. c. 2 Cl. & F. 488, 531. 2 Ante, § 49, 181. ® Post, § 217. [126 J CHAP. VII.] MARRIAGE UNDER CONFLICTING LAWS. § 132 tween persons within the prohibited degrees of consanguinity or affinity shall be absolutely null and void, to all intents and purposes whatsoever.” Another section of the same statute directed, “that nothing in this act shall be construed to extend to that part of the United. Kingdom called Scotland;” but the marriage in question was celebrated out of the British dominions. A view of the law, therefore, which might have prevailed with the judges, was, that the absolute nullity men- tioned in the statute of Will. 1V. was intended by the legis- lature to attach as a disqualification to the person, and so operated at the place of the celebration, though beyond the dominion of the English local law. And while observations in the report lead us to this view of the matter, other obser- vations occur also, leading us to doubt whether these two judges would not go much further. At the time this third edition of the present work goes to press, the author has no ‘means of saying, whether this decision has been revised by higher judicial powers. On‘ principle, plainly the statute cited should not have influenced the decision; because no statute of this kind is properly to have extraterritorial force, unless by its express words. The royal marriage’ act, binding a single family of particular persons, is not in reason parallel with the one under consideration. Il. The Doctrine of Marriage invalid where Celebrated every- where invalid. § 132. Equally true with the proposition, that a marriage valid by the law of the place of its celebration is valid every- where, is, as a general rule, the converse of it; namely, that a marriage invalid where it is celebrated is everywhere invalid? 1 Brook v. Brook, 3 Smale & G. 481, decided by the Vice-Chancellor, April 17, 1858. 2 See cases cited ante, § 125; Ferg. Consist. Law, 18, 28, 29; Greenwood v. Curtis, 6 Mass. 358, 378; Dalrymple v. Dalrymple, 2 Hag. Con. 54, 4 Eng, Ec. 485; Kent v. Burgess, 11 Sim. 361; McCulloch v. McCulloch, Ferg. 257, 3 Eng. Ec. 419. [127] § 133 NULLITIES OF MARRIAGE. [Book In. This latter branch of the doctrine however seems, at the first impression, subject to more numerous exceptions than the former. And Lord Stowell has said: “It is true, indeed, that English decisions have established this rule, that a foreign marriage, valid by the law of the place where it is celebrated, is good everywhere else; but they have not, e converso, established, that marriages of British subjects, not good according to the general law of the place where cele- brated, are universally, and under all possible circumstances, to be regarded as invalid in England. It is, therefore, cer- tainly to be advised, that the safest course is always to be married according to the law of the country, for then no question can be stirred; but, if this cannot be done, on ac- count of legal and religious difficulties, the law of this country does not say that its subjects shall not be married abroad. And even in cases where no difficulties of that insuperable magnitude exist, yet, if a contrary practice has been sane- tioned by long acquiescence and acceptance of the one country that has silently permitted such marriages, and of the other that has silently accepted them, the courts of this country, I presume, would not incline to shake their validity upon these large and general theories, encountered: as they are by numerous exceptions in the practice of nations.” ! § 133. In the last two periods, this learned judge has men- tioned nearly all the exceptions to the general rule. They are, First, Cases in which the parties cannot contract mar- riage in accordance with the local law where they are. Secondly, Those wherein, on various grounds, a local law has sprung up in the foreign country, applicable to sojourners from other countries, under which they are married, differing from the general lex loci contractés, yet recognized as well by it as by the law of their domicil. To which may be added, Thirdly, The very case under the consideration of the learned judge when the foregoing observations fell from him; namely, 1 Ruding v. Smith, 2 Hag. Con. 371, 4 Eng. He. 551, 560. See Newbury v. Brunswick, 2 Vt. 151. [128] CHAP. VII.] MARRIAGE UNDER CONFLICTING LAWS. § 184 that of a victorious invading army, carrying with it the laws of its own country, for the protection of persons within its lines and general range of dominion. But only the first exception, the reader perceives, is a real one. Under the second and third exceptions, the marriage is according to a law, not indeed the general one, recognized at the place of its celebration. Let us look at these exceptions in their order. § 134. First. The right to marry is a natural one, and no gov- ernment can justly take it away from its own subjects, much less from the subjects of another government. If parties therefore are sojourning in a foreign country, where the local law makes it impossible for them to contract a lawful marriage under it, they may marry in their own forms, and the marriage will ‘be recognized at home as valid.| Thus in the discussion of a divorce bill in the House of Lords, Lord Eldon expressed a doubt concerning the validity of a marriage celebrated at Rome, by a Protestant clergyman, both parties being Protes- tants; and said, that where persons are married abroad it is necessary to show a celebration of the marriage according to the lex loci, or show there was no lex loci. Buta Roman Catholic clergyman produced at the bar of the house swore, that, at Rome, two Protestants could not marry according to the lex loci, because no Catholic clergyman would perform the ceremony; whereupon the marriage was held to be good.? * Rogers Ec. Law, 652; Poynter Mar. & Div. 289; Kent v. Burgess, 11 Sim. 361. ? Lord Cloncurry’s case, Cruise on Dignities, 276, Wadd. Dig. 238, note. This case, as I understand it, proceeded on the assumption, that the mar- riage would have been held null at Rome. In the Sussex Peerage case, 11 Cl. & F. 85, 152, the evidence was, that a marriage at Rome between English Protestants, according to the rites of their own church, would be recognized as good by the authorities of Rome. Lord Campbell expressed surprise at the evidence. But, if this.be so, it only shows that the authori- ties there recognize the jus gentium (see post, § 135-137) by which the religious scruples of foreigners, in matters of marriage, are regarded. See also Lockwood v. Lockwood, Wadd. Dig. 238; Hossack Confl. Laws, 146, 147. And see post,§138. , [129] § 135 NULLITIES OF MARRIAGE. [BooK IIL. And, in the case of The Queen v. Millis, Lord Campbell men- tioned it as having been repeatedly held, and expressed no doubt of its being the law, that, in circumstances where it is utterly impossible to procure the presence of a priest, there may be a valid marriage by the mere consent of the parties. But if Protestants at Rome, for instance, choose to abjure their religion and connect themselves with the Catholic church, for the sole purpose of entering into a marriage, the marriage will be good, contracted thus according to the local law. The reader will observe, that the doctrine of this section does not necessarily extend beyond cases in which the persons, un- dertaking to contract a marriage contrary to the law of the . place, are sojourning there for some purpose other than merely to ‘contract a marriage contrary to their own law. And, though the point seems not to be adjudicated, we may pre- sume the courts of our own country would not recognize these marriages from necessity as good, if entered into by persons resorting to the place of impossibility for the purpose of evading the law of their domicil. § 185. Secondly. In regard to the second class of excep- tions, that of foreigners being permitted, by the law of the country in which they are sojourning, to marry in a mode of their own differing from the mode prescribed for citizens, Lord Stowell, in the leading case of Ruding v. Smith, already referred to, made the following observations: “It is observed by the learned Dr. Hyde, that there is in every country a body of inhabitants, formerly much more numerous than at present (and now generally allowed to be of foreign extrac- tion), having a language and usages of their own, leading an 1 Reg. v. Millis, 10 Cl. & F. 534, 786, 2 Swift v. Kelly, 3 Knapp, 257. ® Ruding v. Smith, 2 Hag. Con. 371, 4 Eng. Ec. 551,557. Mr, Burge remarks, that “there seems to be an inclination in the courts of England, where the marriage of two British subjects in a foreign country is not sus- tainable by the law of that country, to ascertain whether it is valid accord- ing to the law of England.” 1 Burge Col. & For. Laws, 199. [ 130] CHAP. VII.] MARRIAGE UNDER CONFLICTING LAWS. § 136 erratic life, and distinguished by the different names of Egyp- tians, Bohemians, Zingarians, and other names, in the coun- tries where they live. Upon such persons the general law of the country operates very slightly, except to restrain them from injurious crimes; and the matrimonial law hardly, I presume, in fact, anywhere at all. In our own country and in many others, there is another body, much more numerous and respectable, distinguished by a still greater singularity of usages, who, though native subjects, under the protection of the general law, are, in many respects, governed by institu- tions of their own, and particularly in their marriages ; for, it being the practice of mankind to consecrate their marriages by religious ceremonies, the differences of religion, in all countries that admit residents professing religions essentially different, unavoidably introduce exceptions, in that matter, to the universality of that rule which makes mere domicil the constituent of an unlimited subjection to the ordinary law of the country. § 136. “The true statement of the case results to this, that the exceptions, when admitted, furnish the real law for the excepted cases; the general law steers wide of them. The matrimonial law of England for the Jews is their own matri- monial law; and an English Court Christian, examining the validity of an English Jew marriage, would examine it by that law, and by that law only, as has been done in the cases that were determined in this court on those very principles.1 If a rule of that law be, that the fact of a witness to the mar-. riage having eaten prohibited viands, or profaning the Sab- bath day, would vitiate that marriage itself, an English court would give it that effect, when duly proved, though a total stranger to any such effect upon an English marriage gener- ally. I presume, that a Dutch tribunal would treat the mar- riage of a Dutch Jew in a similar way, not by referring to the ! Lindo v. Belisario, 1 Hag. Con. 216, 4 Eng. Ec. 867; Goldsmid v. Bro- mer, 1 Hag. Con. 324, 4 Eng. He. 422, . [131 ] § 137 NULLITIES OF MARRIAGE. [BooK It. « general law of the Dutch Protestant consistory, but to the ritual of the Dutch Jews established in Holland. § 187. “ What is the law of marriages, in all foreign estab- | lishments, settled in countries professing a religion essentially different? In the English factories at Lisbon, Leghorn, Oporto, Cadiz, and in the factories in the East, Smyrna, Aleppo, and others, in all of which (some of these establish- ments existing by authority under treaties, and others under indulgence and toleration) marriages are regulated by the law of the original country, to which they are still considered to belong. An English resident at St. Petersburg does not look to the ritual of the Greek Church, but to the rubric of the Church of England, when he contracts a marriage with an Englishwoman.! Nobody can suppose, that, whilst the Mogul empire existed, an Englishman was bound to consult the Koran, for the celebration of his marriage. Even where no foreign connection can be ascribed, a respect is shown to the opinions and practice of a distinct people. The validity of a Greek marriage, in the extensive dominions of Turkey, is left to depend, I presume, upon their own canons, without any reference to Mahometan ceremonies. There is a jus gen- tium upon this matter, — a comity, which treats with tender- ness, or at least with toleration, the opinions and usages of a distinct people in this transaction of marriage. It may be difficult to say @ priori, how far the general law should cir- cumscribe its own authority in this matter; but practice has established the principle in several instances; and, where the ‘practice is admitted, it is entitled to acceptance and respect. It has sanctioned the marriages of foreign subjects, in the houses of the ambassadors of the foreign country, to which they belong. I am not aware of any judicial recognition upon the point; but the reputation, which the validity of such marriages has acquired, makes such a recognition by no 1 “ A register of English marriages, celebrated at St. Petersburg, is trans- mitted to the registry of the Consistory Court of London.” [132] CHAP. VII.]’ MARRIAGE UNDER CONFLICTING LAWS. § 138 means improbable, if such a question was brought to judg- ment,” § 188. The cases therefore under this head proceed on the express ground, that the local law, being presumed to recog- nize the jus gentium on the subject, sanctions the marriage. And where the fact is made to appear, that it does not, yet provides a way of its own, there is the same necessity for resident foreigners and transient persons, as for any others, to conform to it, in order for their marriages to be held valid in their own country.2 And if merely the local law is more strictand burdensome in its requirements than their own, while it provides a way in which the relation can be lawfully created, it must be followed, for the marriage to be good at home? Yet intimations have been made, that, if ittimposes a + Ruding v. Smith, 2 Hag. Con. 371, 384, 4 Eng. Ec. 551,557.. In Pren- tiss v. Tudor, 1 Hag. Con. 136, it was considered, that the privilege of an embassador’s chapel would only extend to cases where both parties are sub- jects of the country of the ‘embassador. See 2 Roper Hus. & Wife, by Jacob, 498 ; 1 Burge Col. & For. Laws, 168. Marriages in presence of a consul are not protected under this rule. Kent v. Burgess, 11 Sim. 361. The following passage, from Story’s Conflict of Laws, § 2a, will serve to illustrate this subject: “When the Northern nations, by their irruptions, finally succeeded in establishing themselves in the Roman. empire and the dependent nations subjected to its sway, they seem to have adopted, either by design, or from accident, or necessity, the policy of allowing the different races to live together, and to be governed by and to preserve their own separate manners, laws, and institutions, in their mutual intercourse. While the conquerors, the Goths, Burgundians, Franks, and Lombards, maintained their own laws and usages and customs over their own race, they silently or expressly allowed each of the races over whom they had obtained an abso- lute sovereignty, to regulate their own private rights and affairs according to their own enuitipal jurisprudence. It has accordingly been remarked by a most learned and eminent jurist, that from this state of society arose that condition of civil rights denominated personal rights, or personal laws, in opposition to territorial laws.” * Lord Ellenborough, in Rex v. Brampton, 10 East, 282, 286; Buller v. Freeman, Amb. 301, 303; Roach v. Garvan, 1 Ves. sen. 157; Rogers Ec. Law, 2d ed. 650; 2 Roper Hus. & Wife, by Jacob, 497. * Rogers Ec. Law, 2d ed. 651. 12 [133 ] § 139 NULLITIES OF MARRIAGE. [BooK In. very unreasonable burden, as by requiring the consent of parents and fixing the age of majority at thirty or forty years, this burden will be equivalent to an impossibility, rendering the marriage good without compliance with the requirement. And we have seen, that English subjects at Rome would not be obliged by the English law to become Catholics, for the purpose of contracting marriage in accordance with the lea loci2 But in the case of Kent v. Burgess, the point being strongly urged by counsel that the marriage, celebrated in Belgium without a compliance with the lex loci, should be held good because by the Belgian law the parties could not marry until they had been in the country six months, while at the time this marriage took place they had not been there for so long a period; and because, by that law, in which the age of majority was twenty-five, the consent of parents was required, while the age of this husband was but twenty-four, —the Vice-Chancellor, evidently impressed with the general truth of the proposition, which was likewise conceded by the opposite counsel, said, that here there was no insuperable diffi- culty preventing the marriage from being celebrated according to Belgian law, and he therefore held it void.® § 139. In England, by a recent statute, the marriages of British subjects solemnized by a minister of the Church of England, in the chapel or house of any British embassador or minister residing within the country to the court of which he is accredited, or in the chapel belonging to any British factory abroad, or in the house of any British subject residing at such factory ; together with all marriages solemnized within the British lines, by any chaplain or other person officiating under the orders of the commanding officer of a British army abroad; are, to remove all doubts, declared.to be valid.4 It has been held, that, under this statute, contrary to the common 1 Ruding v. Smith, 2 Hag. Con. $71, 4 Eng. Ec. 551; ante, § 184. 2 Ante, § 134. * Kent v. Burgess,’ 11 Sim. 361. 4 4 Geo. 4, c. 91. » See Shelford Mar. & Div. 78-87. [134]. CHAP. VII.] MARRIAGE UNDER CONFLICTING LAWS. § 141 law rule, the marriages referred to are good when but one of the parties is a British subject. § 140. Thirdly. The third apparent exception to our rule, of marriage invalid in the country where celebrated also invalid in the country of the parties’ domicil, rests partly on the doctrine that colonists carry with them wherever they go _ the law of the mother country, including herein the law matrimonial ;? partly likewise on an exception to the doc- trine that the laws of a conquered country remain in force until altered by the conquerors? An invading army is not subject to the municipal jurisdiction of the invaded country, but is more nearly in the position of colonists, proceeding under the protection of their own sovereign. And a question has been made, whether, after the invaded country has sur- rendered, the subjects of the conquering country in it are bound by its laws, as the original inhabitants are, until their sovereign has had the opportunity to examine them, and to alter them if deemed unsuited to his own subjects.* § 141. It was therefore intimated, in a case which never reached a decision, that the law of France might not apply to an officer of the English army of occupation, between whom and an English lady a marriage was celebrated by the chaplain of the army; because the parties were not under the dominion of the French law And in Ruding v/ Smith, the marriage between two British subjects was held to be good, where, after the English army had invaded a Dutch province 1 Lloyd v. Petitjean, 2 Curt. Ec. 251, 7 Eng. Ec. 105. See ante, § 137, note. 2 Lautour v. Teesdale, 8 Taunt. 830; ante, § 17, 18. ® Calvin's case, 7 Co. 1,170; Campbell v. Hall, Cowp. 204, 209; Fowler v. Smith, 2 Cal. 39. * See the whole of the masterly judgment of Lord Stowell in Ruding v. Smith, 2 Hag. Con. 371, 4 Eng. Ee. 551. 5 Burn v. Farrar, 2 Hag. Con. 369, 4 Eng. Ec. 550. See also Ruding v. Smith, 2 Hag. Con. 371, 4 Eng. Ee. 551. : [135 ] § 142 NULLITIES OF MARRIAGE. [BooK II. at the Cape of Good Hope, and it had surrendered, but was not ceded to the British crown, and was awaiting a treaty of peace, the nuptials were performed by the chaplain of the British garrison, under a license from the eommander-in-chief. Some other points were discussed in this case; such as, that, the parties being minors, the Dutch law of minority was an unreasonable one;! but it evidently turned on the question as above stated? Lord Ellenborough has well said: « Imay suppose, in the absence of any evidence to the contrary, that the law of England, ecclesiastical and civil, was recognized by the subjects of England in a place occupied by the king’s troops, who would impliedly carry that law with them.” ® Ill. General Views and further Unfoldings of the foregoing Doctrines. § 142. A sight understanding of the propositions discussed thus far in this chapter will be promoted by considering, more minutely, the course of legal reasoning by which they are deduced. Various grounds have been assigned why a matri- age, good by the law of the place of its solemnization, is good everywhere. Sometimes this doctrine has been referred to the general one, that the validity of a contract is to be determined by the law of the locality in which it is made.* “Some writers,” observes Dr. Radcliff, “say that the rule 1 Ante, § 134, 138. ? Ruding v. Smith, supra. In Kent v. Burgess, 11 Sim. 361, 376, the Vice-Chancellor remarked, that the case of Ruding v. Smith turned upon the difficulty of effecting a marriage according to the Dutch law. This will appear not wholly inconsistent with the view taken of it in the text, if we consider, that the extreme difficulty, not to say impossibility, of learning the Jocal law, was Lord Stowell’s strong argument for deeming British subjects, while under protection of the British troops, not bound to the general muni- cipal law of the foreign country. * Rex v. Brampton, 10 East, 282, 288. See 1 Burge Col. & For. Laws, 169. * Ferg. Consist. Law, 28, 29; Poynter Mar. & Div. 278. [ 136 ] CHAP. VII.] MARRIAGE UNDER CONFLICTING LAWS. § 143 rests in the comity of nations; but Lord Brougham? says, it may be laid down with more appearance of truth that it is ex debito justitie, the parties agreeing to have the contract formed, and its validity determined, according to that law. And that this is the true principle, I must refer to the cases cited,’ and principally to Scrimshire v. Scrimshire, and Sir Edward Simson’s Inminous judgment in that case, and to Ilderton v. Iiderton,t and to Huberus. That rule is eminently calculated to prevent uncertainty and confusion, and is gen- erally established among the Christian nations of Europe, in order to avoid the ill consequences that would ensue if coun- tries did not observe the laws of each other in questions of marriage.” 5 § 143. Insome Massachusetts cases, Parker, C. J., remarked, that comity would not be offended by declaring null a con- tract entered into in violation of the laws of the State in which the parties live,’ and that so the principle applied to » In Warrender v. Warrender, 2 Cl. & F. 488, 529, 530. In a Scotch case, Mr. Commissary Ross observed, of the rule that the lex loci contractis governs in respect to the validity of contracts: “This is merely a proceed- ing in execution of the will of the parties, and not the least a recognition of the authority of the foreign law.” Ferg. 360, 8 Eng. Ec. 480. 2 The argument of Lord Brougham, referred to by Dr. Radcliff, seems to be, that the essence of marriage is consent, and that there is a marriage whenever there is a consent, the peculiar forms enjoined by law being only modes of evidencing this consent; but that the consent is evidenced when expressed in the forms recognized by the law of the place where the parties may be, at the moment when it is mutually given. And see post, § 145. 3 Dalrymple v. Dalrymple, 2 Hag. Con. 54,4 Eng. Ec. 485; Ruding »v. Smith, 2 Hag. Con. 371, 4 Eng. Ec. 551; Middleton v. Janverin, 2 Hag. Con. 437, 4 Eng. Ec. 582; Harford v. Morris, 2 Hag. Con. 423, 4 Eng. Ec. 575; Scrimshire v. Scrimshire, 2 Hag. Con. 395, 4 Eng. Ec. 562. . Tidavton v. Ilderton, 2 H. BI. 145. 5 Steele v. Braddell, Milward, 1, 20. ® Tt has been with great weight of reasoning denied, that comity is the true principle on which generally a contract, made in one country, is enforced in another according to the laws of the former; although the doctrine is usually expressed in this way. Lord Brougham in Warrender v. Warren- 12° [ 187 ] § 144 NULLITIES OF MARRIAGE. [BooK III. marriage is not necessarily applicable to contracts of a differ- ent nature, — usurious, gaming, or others, —made unlawful by statutes or by the common law. Comity does not oblige the government of any country to protect its subjects in evading its laws by incurring abroad obligations which they could not enter into at home. But the rule, he considered, rests, both in England and in this country, on the extreme dan- ger of vacating a marriage valid where it is solemnized; thus bastardizing innocent children, and committing an outrage on the public morals.t § 144. Having stated the reasons for the doctrine as they appear in the books generally, let us see what further reasons can be drawn from those fountains of wisdom which have been placed by the Creator in the breasts of us all. -Return- ing to the proposition mentioned some sections back,? that marriage cannot be a thing of cognizance by the international law, and that the relation as one of municipal law will be immeasurably burdensome to persons who have occasion to travel or remove from one State or country into another, unless a common rule is established, of universal recognition in all countries, whereby the courts shall determine when persons are married and when they are not, — we are to inquire, what, in reason, must be this universal rule? And the answer reason gives to this inquiry is the following: since marriage is a thing of natural right, —since it is an institution everywhere to be protected and cherished, — since, when once it is any- where recognized as existing between two persons, it ought to be everywhere else recognized as existing, — if, in any cir- cumstances, there has happened in any country that, in conse- quence of which, the tribunals of the country will hold persons der, 2 Cl. & F. 488, 9 Bligh, 89; Story Confl. Laws, § 226 ¢, note; ante, § 242. : ' Putnam »v. Putnam, 8 Pick. 433; Medway v. Needham, 16 Mass. 157. See also 2 Kent Com. 92; Poynter Mar. & Div. 287; Story Confl. Laws, §124. 2 Ante, § 125. [138] CHAP. VII.] MARRIAGE UNDER CONFLICTING LAWS. § 144 4 therein being to be married, the tribunals of every other coun- try should hold them married also. And though the persons should be found to be only transiently in the country wherein the marriage takes place, this rule should apply to them equally as though they were domiciled there; because the necessity of unformity of decision exists as well in the one case as in the other, and because we should gain no useful object in requiring proof of domicil whenever a marriage is to be proved. § 144a@. And concerning what is called a going away by parties from the place of their domicil to contract a marriage in fraud of their own laws, the true answer to all the mist and misapprehension on this point is the following: The legis- lation of a country can make what regulations it pleases, to govern the courts of the country. If it pleases, it can require the courts to recognize as valid no foreign marriage whatever ; but this fact does not absolve the courts from the duty to fol- low sound principles of jurisprudence in the absence of ex- press legislative direction. And when a statute directs how marriages shall be solemnized, and between what persons, — if the statute is general in its terms, the courts, in the absence of some express circumstance, should construe it as applying only to marriages within the territorial limits of the country or State over which the legislature has control. This is a sound principle of statutory interpretation, it governs also other statutes than matrimonial! It is then competent for persons to choose how, where, when, they shall be married. If individuals, desiring to be married, find the laws of the country forbidding the union within the territorial limits of the country, — find the statute law prescribing certain forms which they choose not to follow, or defining who may enter into the relation, and they are not within the definition, — yet find a law, not of statutory regulation, but equally a law of their own country, under which they are able to superinduce the 1 1 Bishop Crim. Law, § 66 c, 86, 576. [139] § 145 NULLITIES OF MARRIAGE. [Boox II. status upon themselves in some other way, by going into an- other State or country, they simply follow a proper impulse of nature and a rule of the highest reason, while also they follow the law of their own country, in availing themselves of their privilege of marrying abroad. They do not, in any just sense of the expression, commit a fraud upon their own laws. § 1446. In another aspect of the matter, the law of nature enables all persons in whom no natural impediment exists, to intermarry by mere words of consent, whenever they please. And, when by this law recognized in the courts the world over wherever no inhibitions of church or state prevent, two persons are married, the courts, if not restrained by such in- hibitions, must pronounce them so. “We have seen,! that the statutes on the subject of marriage have generally no extra- territorial force; therefore the courts, in examining a marriage celebrated beyond the territory, should require only evidence of the mutual consent of the parties given at the place of celebration, to be husband and wife; while no evidence should appear of any impediment of natural law forbidding the union. But there is a principle of international law limit- ing,in one respect, this proposition; namely, that, when an agreement between persons is entered into, not on the high seas, not on unoccupied land, but within the dominions of a foreign power, no evidence will be admitted by our courts of the agreement, if it would not be recognized as binding in the place in which it if made. § 145. In the words of Lord Brougham, as employed in the case referred to by Dr. Radcliff? the question under such circumstances is, “Did the parties intend to contract mar- riage? And if they did that, which in the place they were in is deemed a marriage, they cannot reasonably, or sensibly, or safely, be considered otherwise than as intending a mar- riage contract. The laws of each nation lay down the forms 1 Ante, §144a. 2 Ante, § 142. [140 ] CHAP. VII.] MARRIAGE UNDER CONFLICTING LAWS. § 146 and solemnities, a compliance with which shall be deemed the only criterion of the intention to enter into the contract. If those laws annex certain disqualifications to parties cireum- stanced in a particular way, or if they impose certain condi- tions precedent on certain parties, this falls exactly within the same rule; for the presumption of law is in the one case, that the parties are absolutely incapable of the consent required to make the contract, and in the other case, that they are incapable until they have complied with the conditions im- posed.” 1 § 146. Therefore the ground on which the validity of a for- eign marriage is held to be triable by the foreign law, is not that such law has, proprio vigore, any force in the domestic forum. -.All marriages are really to be judged of by the law | of the country in whose tribunals they are drawn in question. This principle is universal, applying even to marriages cele- brated in foreign countries between domiciled citizens of those countries, as well as to marriages between citizens of our own country transiently abroad; because every court must decide all matters before it according to its own law. And in the Dalrymple case Lord Stowell well observed, that the ques- tion of the parties’ marriage, “being entertained in an Eng- lish court, must be adjudicated according to the principles of English law applicable to such a case. But the only princi- ple applicable to such a case, by the law of England, is, that the validity of Miss Gordon’s marriage rights must be tried by reference to the law of the country, where, if they exist at all, they had their origin. Having furnished this principle, the law of England withdraws altogether, and leaves the legal question to the exclusive judgment of the law of Scotland.” ? 1 Warrender v. Warrender, 2 Cl. & F. 488, 530,.531. * Dalrymple v. Dalrymple, 2 Hag. Con. 54, 58, 4 Eng. Ec. 485, 487; Hol- royd, J., in Doe v. Vardill, 5 B. & C. 438, 454. And see the observations of Sir Herbert Jenner Fust in Connelly v. Connelly, 2 Robertson, 201, 248 et seq., 2 Eng. L. & Eq. 570, 574. [141 ] § 148 NULLITIES OF MARRIAGE. [Book III. § 147. But a doctrine of international law allows every government to regulate, as it chooses, the conduct of its sub- jects abroad. Therefore the matrimonial regulations of any country may, by their express terms, be made to control the citizens of the country wherever they are. “Every State,” says Mr. Burge, “retains the power of making a law requir- ing its own subjects to conform io it, in whatever country they may reside. It may therefore, by its marriage law, expressly enjoin that the marriage of its subjects shall be preceded or accompanied by certain ceremonies, which are capable of being performed in whatever country the marriage is celebrated ; and, it may declare, that, unless those ceremo- nies are performed, the marriage shall be void.” And he men- tions Holland and France, whose respective governments have established rules concerning the marriages of their subjects abroad. § 148. While therefore the common law makes the foreign law its own, when deciding on the validity of a marriage cel- ebrated in the foreign country, this rule, like other common law rules, is subject to the legislative control. We have seen, that it has its common law exceptions:3 it may have also its statutory exceptions; as in Holland and France, to which reference has just been made. And there are statutory excep- tions in some of the United States ; asin Massachusetts, where its Revised Statutes, enacted since the decisions of its courts before referred to have directed, that, “when any persons, resident in this State, shall undertake to contract a marriage contrary to the [provisions of the statute], and shall, in order to evade those provisions, and with an intention of returning to reside in this State, go into another State or country, and there have their marriage solemnized, and shall afterwards 1 1 Bishop Crim. Law, § 576 et seq. ? 1 Burge Col. & For. Laws, 196. > Ante, § 129 a, 180, 182, 133. * Ante, § 147. 5 Ante, § 126. [142] CHAP. VIL] MARRIAGE UNDER CONFLICTING LAWS. § 149 return and reside here, such marriage shall be deemed void in this State.”! If the legislature of a State should even go further than this, and direct the courts to recognize as valid no foreign marriage, whether between the subjects of the State or foreigners, domiciled at home or abroad, the statute would doubtless bind them; but no legislature sitting in a civilized country would thus undertake to violate the law of nature and of nations, and jeopardize the peace of the community. § 149. We have seen, that even the common law has ex- ceptions to its rule of recognizing foreign marriages, valid where celebrated, as valid everywhere. One of its exceptions is, that polygamous and incestuous marriages, entered into in foreign countries, though the parties were citizens of the country in which such marriages were celebrated, and though they were there allowed by law, will not be recognized as ~ good elsewhere.2 So according to the better doctrine, as we shall have occasion to consider hereafter, when parties, mar- ried in one country, wherein they reside, remove to another, the courts of their new locality will dissolve their marriage for any matrimonial offence sufficient, according to the law of the new domicil, without regard to whether it occurred before or after the change of domicil. In respect to offences committed before such change, the principle appears to, be, that the gov- ernment, not being bound to recognize at all the foreign mar- riage, accepts of it subject to be annulled for any cause already existing, which, on principles of its own law, would authorize a dissolution. And, as divorces are granted chiefly to pro- mote the public morals and private virtue generally, sucha rule seems to fall within the spirit of all divorce laws. If a man were to come from South Carolina, where adultery. is not ground of.divorce, to Massachusetts, where it is, leaving behind him an adulterous wife, yet becoming domiciled in 1 R. S.c. 75, § 6. For suggestions as to the construction of this statute, see Commonwealth v. Hunt, 4 Cush. 49. 2 Ante, § 58, 180, 131. * Post, § 741-744. [143] § 150 NULLITIES OF MARRIAGE. [Book III. Massachusetts himself, the courts of his new domicil would neither deal justly with him, nor promote public virtue, if they should recognize the foreign marriage, yet refuse to take cog- nizance also of the foreign adultery. And no principle of international or inter State comity would require of them to take notice of the marriage, without permitting them also to take notice of the breach of the marriage. § 150. A single further point needs to be stated in this connection. In later pages of this work! we shall have occa- sion to lay down the doctrine, that the courts of no State can rightfully take jurisdiction to divorce parties, unless one of them, at least, is domiciled within the State, a mere tran- sient presence of one or both of them not sufficing for this purpose. And at the first impression the rule thus stated may seem counter to the rule concerning marriage, illustrated in the present chapter. Now it is undoubtedly a general principle of international law, that the status of people shall be regulated by the law of their domicil, rather than by the law prevailing where they temporarily sojourn. Yet the status of slavery, for example, is ordinarily understood to be determined, for the time being at least, by the mere presence of the person within the jurisdiction in which his status is called in question, and the same rule applies to many other things. Marriage, being a thing of universal right, to be universally favored by the law; and divorce, being neither of universal right, nor to be universally favored, — the consequence is, that, whenever two capable persons undertake to enter into the relation of marriage, the law universally should hold them to be married, unless some local rule, existing at the place in which the ceremony is performed, forbids; but, when they mutually ask to be divorced, or one of them seeks a divorce in opposition to the other’s will, this change of status, sought in opposition to natural right, should be granted only by the courts of a country in which one of the parties has a domicil. And there is room to say, that even the assumption of the 1 Post, § 712 et seq. [144] et seq : CHAP. VIL] MARRIAGE UNDER CONFLICTING LAWS. §151 marriage status is really regulated by the law of the domicil ; since the law of the domicil may, if the legislature please, properly control the question of whether the marriage abroad, of persons domiciled at home, shall be held to be valid at home. Still the point thus stated, which, as thus stated, ap- peared in the first and second editions of this work, may be a little uncertain. If a Frenchman domiciled in France should marry in this country according to our law, but contrary to the French law as applied to citizens abroad, doubts may be raised whether the courts of England or any other third country would refuse to recognize the marriage. as valid, simply on the ground of its invalidity under the French law, while the parties were not personally in France. Points of this kind seem not to be illustrated by adjudication ; so they must be left- for consideration by the tribunals hereafter. § 151. The reader perceives, that this chapter treats simply of the status of marriage, not of the property rights follow- ing. When we inquire concerning them, we find prevailing rules somewhat different fyo™M.‘those just stated But this subject is foreign to the purposes of the present volume. 1 See Doe v. Vardill, 5B. & C. 488; Steele v. Braddell, Milward, 1, 21. In Louisiana it is held, that persons going into another jurisdiction to be married and return, have their rights of property governed by the law of their domicil. Le Breton v. Nouchet, 3 Mart. La. 60. ‘So, generally, their matrimonial rights are regulated by the law of their intended domicil. Ford’s Curator v. Ford, 14 Mart. La. 574; Allen v. Allen, 6 Rob. La. 104; Story Confl. Laws, §160-190; Land »v. Land, 14 Sm. & M. 99; Percy v. Percy, 9 La. Ann. 185; Arendell v. Arendell, 10 La. Ann. 566. As to their prop- erty rights, in the place of the marriage, after a change of domicil, see Lyon. v. Knott, 26 Missis. 548. And see Depas v. Mayo, 11 Misso. 314. 18 [145 J § 153 NULLITIES OF MARRIAGE. [Book 111. CHAPTER VIII. THE COMMON LAW AND STATUTORY FORMS OF CONSENT. Scr. 152. Introduction. 153-166. Whether any and what Forms are required by the Common Law. 167-173. How Statutes concerning the Forms are to be Interpreted. 174,175. Concerning the Consent of Parents. § 152. In the fifth chapter of our present volume we dis- cussed the consent necessary to constitute marriage, considered irrespective of any particular forms. And we there saw, that, whether forms are to be added to the consent there treated of or not, still the consent itself must always be given. In the _present chapter we are to inquire, whether the common law makes any added forms necegsaty, or, if so, what; and to con- sider briefly whatever is necessary to be concidered concerning the statutes of the several United’States on the subject. We shall divide the matter as follows: J. Whether any and what Forms are required by the Common Law; II. How Statutes concerning the Forms are to be Interpreted; ITI. Concerning the Consent of Parents. I. Whether any and what Forms are required by the Common Law. § 153. Previous to the council of Trent, the authority of which was never acknowledged in England, nothing but mere consent was, by the general matrimonial law of Chris- tian Europe, deemed requisite to the validity of a marriage.” 1 Poynter Mar. & Div. 13. 2 Dalrymple v. Dalrymple, 2 Hag. Con. 54, 4 Eng. Ec. 485. [146] CHAP. VIII.] THE FORMS OF CONSENT. § 155 But whether the same rule prevailed in England, Ireland, and Scotland, is a question which has greatly agitated the tribu- nals of those countries, and created some difference of opinion in the American courts. § 154. The question is simply, whether, to constitute a com- plete and valid marriage at the common law, the mutual con- sent of the parties must be given in the presence of a person in holy orders; namely, a bishop, priest, or deacon, episcopally ordained.1 It seems to be conceded, that the marriage need not be in facie ecclesia, further than the presence of such a person is concerned; but that it is just as well celebrated in a private room as ina church. Neither is it necessary for the person in holy orders to take any active part in the marriage ; he may even refuse, and still it is valid. Perhaps, according to the opinion of those who hold this presence to be essential, he must be the parish priest of the parties. The presence of a dissenting clergyman is, according to this opinion, of no avail; he must be episcopally ordained; that is, a Roman Catholic clergyman, previous to the Reformation; after the Reformation, a clergyman of the Church of England, though even then, aside from any statutory prohibition, a Roman Catholic clergyman will suffice, his ordination being still re- garded as valid. No compliance with forms, either in the church or elsewhere, is, according to this opinion, of any avail, when the proper clerical person is not present.” § 155. It may seem a little strange at first, that this ques- tion should be left in doubt. “But when we consider, that anciently the people were almost entirely under the control of the priesthood; that always, unless we except, according to some, the very early ages of Christianity, religious ceremonies 1 By statute, the only orders allowed after the Reformation were bishops, priests, and deacons. Besides these, the Romish Church reckoned five other orders; namely, sub-deacons, acolyths, exorcists, readers, and ostiaries. Rogers Ec. Law, 2d ed. 668. : 2 Reg. v. Millis, 10 Cl. & F. 584. [147] § 156 NULLITIES OF MARRIAGE. [Boox m1. were regarded as highly appropriate to attend the nuptials, and so a marriage without them was the most rare of all oc- currences; that, also, when a marriage did take place without the clerical presence, either party to it could compel the other to solemnize it in facie ecclesie,—we perceive, that this ques- tion could seldom arise, and therefore the doubt concerning it is not matter of marvel. § 156. All parties to this controversy concur, that the mere present matrimonial consent, given without clerical interven- tion, produced a legal result quite different from an uncon- summated promise of future marriage. It created a lasting obligation, which the persons entering into it could neither singly nor mutually dissolve. If they lived together after the manner of husband and wife, they did not thereby commit fornication. Neither one of them could marry another per- son; and, if either did, though the marriage was celebrated in the face of the church, with all due observance of forms, it was voidable; that is, liable to be dissolved, and held void ab initio, by a proceeding in the ecclesiastical court; such dis- solution being termed a divorce causa precontractus ;1 while a marriage, during the life of a former husband or wife with whom there had been a formal celebration of the marriage, was void per se, without sentence. This marriage without clerical intervention also entitled either party, as just said, to compel the other, by a suit in the spiritual court, into a public solemnization in the face of the church. If either had sexual intercourse with another person, he might be proceeded against for adultery. The contract was considered to be of the essence of matrimony, and was styled in the ecclesiastical law verum matrimonium, and sometimes ipsum matrimonium.? 1 Ante, § 53. 2 Reg. v. Millis, 10 Cl. & F. 584, 624, 626, 654, 655, 703, 707, 832, 856, 858. Some slight doubt was expressed in this case upon one or two of the above points. Thus the solicitor-general put it in argument, that a marriage against the impediment of precontract was void, not voidable, p. 608. And Lord Campbell was of opinion, that the precontract which could be enforced [ 148 J CHAP. VIII} “THE FORMS OF CONSENT. § 158 § 157. What we have thus far said is common ground, conceded on all sides in this controversy. And the reader cannot fail to reflect, that, if this contract was not marriage, it was surely a very sublimated kind of Christian concubinage. We now come to the disputed territory. On the one hand it is contended, that, while parties refusing to have their mar- riages publicly celebrated were liable to ecclesiastical censure, substantially the rights of matrimony, such as the legitimacy of children, and, in later times, dower and curtesy, flowed from these connections, which, in other words, were com- plete marriage. On the other hand, it is contended, that the children were illegitimate, though the cohabitation of the parents was not adulterous; that neither could the woman have dower, nor the man curtesy; and that, although a pub- lic marriage, solemnized afterward between one of the par- ties and a third person, was voidable in the ecclesiastical court, and the cohabitation under it punishable there as adulterous, yet it would not subject them to an indictment for polygamy ; consequently, that the contract was not mar- riage.} : § 158. In Scotland, this question was earliest put to rest. The leading Scotch cases are McAdam v. Walker, which, beginning in the year 1805, and travelling through the Scotch courts, was carried to the House of Lords, and there decided in 1818;? and Dalrymple v. Dalrymple, which was a suit by a suit in the ecclesiastical court, and which rendered a subsequent mar- riage in disregard of it voidable, was an executory agreement to marry, not the promise per verba de presenti, p. 763, 784. Contra, Ld. Denman, p. 815. In accordance with this opinion of Lord Campbell, is that expressed by Woodbury, J.,in Londonderry v. Chester, 2. N. H. 268. On this point, I’ presume the last reported English case is Baxtar v. Buckley, 1 Lee, 42, 5 Eng. Ec. 301. It passed to judgment the year before the date of the first English marriage act, which put an end to these suits. There, the contract was per verba de presenti (not in writing), and the parties were minors. Ante, § 53, note. ‘ 1 Reg. v. Millis, as cited ante, § 154-156. * McAdam v. Walker, 1 Dow. 148. And see 2 Hag. Con. 97, 4 Eng. Ec. 504. 13* [149] § 159 NULLITIES OF MARRIAGE. ’ [Book IIL. brought in the Consistory Court of London to affirm a Scotch. clandestine marriage, decided there by Lord Stowell in 1911, and appealed to the Court of Arches, and thence to the High Court of Delegates, and decided by the latter in the year 1814.1 In each of these cases, the marriage was without clerical intervention; and in each, in every stage of it, was held to be good. Lord Stowell’s opinion in the Dalrymple suit has ever been esteemed a production of matchless beauty and learning, quite unsurpassed in forensic discussion. Still the result has not been universally approved, even by Scotch lawyers; but all admit, that the question, so far as Scotland is concerned, is’ finally adjudicated, no more to be stirred.? § 159. The first English marriage act, commonly called Lord Hardwicke’s,? settled the question for England in respect to future marriages, but left it open for the other portions of the British dominions. The Dalrymple case, however, was generally understood as determining it for those other por- tions, in the same way as for Scotland; until the case of The Queen v. Millis came, in 1844, before the House of Lords, on an appeal from Ireland. The facts of this case are, that the defendant, Millis, being a member of the established ehurch, was married, in Ireland, to a woman who was either a mem- ber of the same church or a dissenter, by a Presbyterian minis- ter, according to the form usual with Presbyterian dissenters ; and, under the marriage, the parties cohabited for two years as husband and wife. Afterward, while this woman was living, he married, in England, another woman, in a form about which no dispute arose. He was indicted in Ireland for polygamy. The first marriage contained all the ingredi- ents essential in a contract per verba de presenti. Was it sufficient to sustain the indictment? The judges of Ireland differed, being about equally divided in opinion; though, in 1 Dalrymple v. Dalrymple, 2 Hag. Con. 54, 4 Eng. Ec. 485, and note at the end of the case. ? 1 Fras. Dom. Rel. 87 et seq. 3 26 Geo. 2, c. 33, A.D. 1758. Ante, § 125, " [150] CHAP. VIII. ] THE FORMS OF CONSENT. §161 form, that the case might be taken up, they united in giving judgment against the crown. The English Lords, on the question coming before them, consulted the common law judges of England; and the latter unanimously advised, that the first marriage was, as a foundation for the indictment, invalid. But the Lords, who gave judgment, were equally divided; Brougham, Denman, and Campbell being in favor of sustaining the first marriage ; the Lord Chancellor (Lynd- hurst), Cottenham, and Abinger being of the opposite opin- ion. So the rule Semper presumitur pro negante applied, and judgment was formally rendered for the defendant.1 § 160. The question, in the House of Lords, was discussed most elaborately by counsel; also by Lord Chief Justice Tin- dal, who pronounced the opinion of the judges; and by the lords above named, who gave opinions seriatim. It was like- wise thoroughly examined in the court below. The report of the case before the Lords fills 874 of the ample pages of Clark & Finnelly’s Reports, and is a mine of learning on the subject. At the same time, some at least of those who came to its examination seem to have been a little deficient in the collateral learning essential to the right determination of a disputed question. Lord Chief Justice Tindal complained of the want of time to give it the attention desirable ; and, from this fact, coupled with the fact of the ecclesiastical judges, whose pursuits lead them into the collateral knowledge most important for the solution of this class of questions, being of opinion opposite to what was arrived at by the common law judges in this case, we may infer, that further study and reflection would have led the common law judges also into sustaining, by their opinion, unanimously this marriage. § 161. The opinions alike of judges:and lords were appar- ently based upon the view taken of the common law of Eng- land. Yet there were several statutes relating to Ireland, 1 Reg. v. Millis, 10 Cl. & F. 534. [151] § 161 NULLITIES OF MARRIAGE. [BooK III. more or less considered in the arguments; one of which, in particular, had great weight with the Lord Chancellor, and it may have turned the scale. It was Stat. 58 Geo. 3, c. 81, which provided, that thereafter there should no “suit or pro- ceeding be had in any ecclesiastical court in Ireland, in order to compel a celebration of any marriage in facie Eccle- sie, by reason of any contract of matrimony whatever, whether per verba de presenti or per verba de futuro.” The Lord Chancellor deemed, that the effect of this statute had been to change entirely the character of the contract per verba de presenti. Lord Chief Justice Tindal plainly did not put his opinion upon any such ground; and, though he expressly said the other judges were not answerable for his reasons, yet he employed language inconsistent with the idea of their opinions resting upon any other basis than the English com- mon law, as unaffected by marriage acts.” 1 Page 871 of the report of the case of Reg. v. Millis, which commences, 10 Cl. & F. 534. And see also the opinion of Lord Cottenham, p. 890. The same was also held by Mr. Justice Crompton, in the court below. See p. 552, and Dix’s Rep. 254. ? I have not thought it advisable either to go at large into this question, or to state at all the reasoning from which the two opposite conclusions are derived; because this would occupy a great amount of space with an inquiry not often arising, and sufficiently elaborated elsewhere. The American authorities are cited post, § 163. The English authorities are cited and commented upon in Reg. v. Millis; and no one will enter into an investiga- tion of the subject, without thoroughly examining this case. In travelling through it, however, the reader should bear in mind the universal rule, appli- cable as well to the decrees of ecclesiastical councils as to statutes, that a regulation concerning marriage does not affect the validity of the marriage, unless it contains an express clause of nullity. See post, § 167. This con- sideration alone will dispose of a large proportion of the arguments against the marriage per verba de presenti. The doctrine of the “ King’s Ecclesias- tical Law ” was undoubtedly well established (ante, § 7); but its effect could only be to weaken somewhat one of Lord Stowell’s minor arguments, em- ployed in the Dalrymple case. Whatever conclusion the reader may arrive at, he will certainly sympathize with Lord Cottenham, where he says, that, in the course of a long professional life, he has not met with a question so embarrassing. p. 873. [152] CHAP. VIII.] THE FORMS OF CONSENT. § 162 § 162. This case of The Queen v. Millis has been some- times understood in England as settling the question for Ire- land and the Colonies,! in a manner opposite to the rule established for Scotland.2 But in the Consistory Court of London, in the year 1847, on a divorce suit for adultery, where the marriage had been contracted per verba de presenti before a Presbyterian clergyman in New South Wales, Dr. Lushington held it to be a sufficient foundation for the divorce ; and employed, in announcing this decision, the fol- lowing language : “ When I consider how much that question was discussed in the celebrated case of The Queen v. Millis, T am justified in saying, that nothing fell from any one of the law lords in the House of Lords (I am not alluding to the opinions expressed by the common law judges) which in any way intimated that such a marriage would not be sufficient to enable this court to proceed to a separation a mensé et thoro. I am not disposed to carry the decision in that case one iota further than it went, for two reasons; first, as the law lords were divided, it was only in consequence of the form in which that case came before them, there could be considered to be a judgment at all; in the second place, were I to hold the presence of a priest in the orders of the Church of England to be necessary, I should be going the length of depriving thousands of couples, married in the Colonies and the East Indies (where till of late there were no chaplains), of the right to resort to this court for such redress as it can: give in cases of cruelty or adultery. Until I am controlled by a superior authority, for no further examination of the ques- tion will induce me to change my opinion, most unquestion- ably I shall hold in this, and all other similar cases, that, where there has been a fact of consent between two parties to become man and wife, such is a sufficient marriage to enable me to pronounce, when necessary, a decree of separation.” § 1 Catherwood v. Caslon, 13 M. & W. 261, 8 Jur. 1076. But see Beamish v. Beamish, post, § 178, note. 2 Ante, § 158. 3 3 Catterall v. Catterall, 1 Robertson, 580. [153] § 163 NULLITIES OF MARRIAGE. [Book 111. The court also held, that this marriage could not be decreed void in a suit for nullity. In a more recent case, the Court of Queen’s Bench in our neighboring province of Upper Canada intimated an opinion, adverse to receiving the decision in The Queen v. Millis as sufficiently establishing the law of mar- riage in accordance with the doctrine maintained by the com- mon law judges.? § 163. The doctrine, that the intervention of a minister in holy orders is essential to marriage, has found small support in this country. Such intervention has been held to be un- necessary at the common law, by the courts of New York,? New Jersey, Pennsylvania,> Kentucky,® Vermont substantial- ly,’ Tennessee, Alabama,’ possibly New Hampshire,” Mary- land, South Carolina,” and California. The same has been held in Louisiana, which State derived its common law from Spain, the Council of Trent never having been deemed bind- ing in the colony, though received in the mother country.” 1 Catterall v. Sweetman, 1 Robertson, 304. * Doe v. Breakey, 2 Upper Canada Q. B.N. 8. 849. 3 Fenton v. Reed, 4 Johns. 52; Starr v. Peck, 1 Hill, N. Y. 270; Rose v. Clark, 8 Paige, 574; Clayton v. Wardell, 4 Comst. 230; ante, § 91a and note. * Pearson v. Howey, 6 Halst. 12, 18, 20, where Ford, J., so held, — the other judges being silent upon the point. 5 Hantzv. Sealy, 6 Binn. 405. 6 Dumaresly v. Fishly, 3 A. K. Marshall, 368. 7 Newbury v. Brunswick, 2 Vt. 151. See Northfield v. Plymouth, 20 Vt. 582; The State v. Rood, 12 Vt. 396. § Bashaw v. The State, 1 Yerg. 177; Grisham v. The State, 2 Yerg. 589. ® The State v. Murphy, 6 Ala. 765; 2 West. Law Jour. 192. 10 Londonderry v. Chester, 2 N. H. 268, 277. And see Keyes v. Keyes, 2 Fost. N. H. 553. But compare these with Dunbarton v. Franklin, 19 N. H. 257. ™ Cheseldine v. Brewer, 1 Har. & McH. 152. % 10 McCord’s Stat. 357, Ed. note; 8S. C. Law Jour. 384. 18 Graham v. Bennet, 2 Cal. 503. ™ Patton v. Philadelphia, 1 La. Ann. 98; Holmes v. Holmes, 6 La. 463; Succession of Prevost, 4 La, Ann. 347, 349; Hallett v. Collins, 10 How. U. §.174. Ante, § 153. [ 154] CHAP. VIII.] THE FORMS OF CONSENT. § 163 And never probably has a different judgment been deliberately pronounced by the tribunals of any State of our Union. It was, however, strongly expressed by the Supreme Court of North Carolina, that the common law of that State recognized no marriages otherwise than according to the statutes... And in Massachusetts a distinguished judge observed: “ When our ancestors left England, and ever since, it is well known that a lawful marriage there must be celebrated before a clergyman in orders,” — language showing conclusively that he had not bestowed upon the subject any degree of his usual re- search? In Maine this matter is still undecided;* though there the court seems to have taken it for granted that the statute forms must be followed.t The question coming before the Supreme Court of the United States, the bench was equally divided Chancellor Kent, Judge Reeve, and Pro- fessor Greenleaf, in their text-books, have considered clerical intervention at common law unnecessary,’ and this may well be deemed the American doctrine.’ The doctrine otherwise expressed is, that the marriage by mere consent, as explained in our fifth chapter, is good throughout the United States, 1 The State v. Samuel, 2 Dev. & Bat.177. The question in the case was, whether marriages by cohabitation among slaves were valid, and they were held not to be so. But the decision rested as much on the legal incapacity of slaves to make any contract, as on the view taken of the common law of the State. On a like ground, the Indiana constitution having provided, that all contracts made with negroes coming into the State after its adoption should be void, —the court held a marriage void, celebrated between a free negro man, and a free negro woman who had so come into the State. Berk- shire v. The State, 7 Ind. 389. * Milford v. Worcester, 7 Mass. 48, 53. See also 2 Dane Ab. 291; 9 Ib. 161; post, § 169. ® Brunswick v. Litchfield, 2 Greenl. 28; Damon’s case, 6 Greenl. 148; Cram v. Burnham, 5 Greenl. 213; Ligonia v. Buxton, 2 Greenl. 102. * The State v. Hodgskins, 19 Maine, 155. § Jewell v. Jewell, 1 How. U.S. 219. 5 2 Kent Com. 87; Reeve Dom. Rel. 195 et seq.; 2 Greenl. Ev. § 460. 7 As to marriage under the Mexican law, formerly prevailing in Cali- fornia, see Harman v. Harman, 1 Cal. 215. As to the law of Mississippi, see Hargroves v. Thompson, 31 Missis. 211. [155] § 165 NULLITIES OF MARRIAGE. [BOOK III. except in some States where local statutes have provided otherwise. § 164. Chancellor Walworth considers the ancient com- mon law doctrine to have been, that the marriage was invalid unless celebrated in facie Ecclesia, but adds: “ The law on this subject, however, was unquestionably changed at the Reformation, if not before. For it is now a settled rule of the common law, which was brought into this State by its first English settlers, and which was probably the same among the ancient Protestant Dutch inhabitants, that any mutual agree- ment between the parties, to be husband and wife, in presenti, especially where it is followed by cohabitation, constitutes a valid and binding marriage, if there is no legal disability on the part of either to contract matrimony.” } § 165. Whether the American courts will be influenced by the opinions expressed adversely to this kind of marriage in The Queen v. Millis, and so the shadow go back on the dial- plate of our jurisprudence, must be left for future judicial determination. Yet it is hardly to be presumed, that a decis- ion which could not materially divert the course of judgment in Doctors Commons at home, will produce a greater effect in the tribunals of this country. If, however, a tendency in the direction indicated should be manifested here, we might not improperly inquire, whether, admitting, for the argument, that the common law of England at the time of our emigra- tion did make necessary the presence of a person in holy orders, this part of it was adopted by us, as suited to our new situation, and peculiar institutions. If it was not, then we fall back on the law of nature; whereby, as already seen,® mariage is constituted by the mutual present consent of two competent persons, without the addition of any formalities. The doctrine contended for as belonging to the common law, ' Rose v. Clark, 8 Paige, 574; s. p.in Clayton v. Wardell, 4 Comst. 230, 232. 2 Ante, § 162. 5 Ante, § 63, 64, 66-68. [ 156 ] CHAP, VIII.] THE FORMS OF CONSENT. § 166 it should be remembered, is, that the minister must be “in holy orders ;” and that, in the language of the Lord Chan- cellor, in The Queen v. Millis, “ Holy orders, according to the law of England, are orders conferred by Episcopal ordi- nation. This was the law of the Catholic church in Eng- land, and the same law continued after the Reformation, as the law of the Episcopal reformed church.” It should be remembered, too, that a minister of any other church than of England or Rome was, in the eye of the law, a mere lay- man, and his presence of no avail. § 166. Let us, then, imagine to ourselves a company of puritan dissenters from the churches both of Rome and of England, fleeing to these western wilds to escape what they deemed oppression and moral contagion in both those churches, yet importing an ecclesiastic of the hated order, and paying him tithes, simply to make him an invited guest at their weddings!2 Though the American colonies were not all settled by puritans, the spirit of this suggestion applies to most of them. So applies also another suggestion, that the strange and monstrous cross-breed between a concubinage anda marriage, which the contract per verba de presenti is admitted by those who do not deem it a perfect marriage to be,3 could find no favor with the pure morals and stern habits of the early settlers of this country ; wherefore, as they could not treat it as a nullity, they would invest it with the entire completeness of marriage. Furthermore, the known impos- sibility, in most of the colonies, of procuring the attendance of a person “in holy orders,” would of itself, within a prin- ciple already stated,* render the marriage good without his presence; and marriages, so contracted, being universal, would 1 Reg. v. Millis, 10 Cl. & F. 534, 861, 906; Londonderry v. Chester, 2 N. H. 268, 271; ante, § 154. * See the pommel of Woodbury, J., in Londonderry v. Chester, 2 N. H. 268, 278. 9 Ante, § 156. * Ante, § 134. 14 [157] 167 NULLITIES OF MARRIAGE. [Boox II. in time gain a prescriptive sanction, and thus the practice would grow into an American common law. Il. How Statutes concerning the Forms are to be Interpreted. § 167. Assuming, then, that the contract per verba de pre- senti sine copula, or per verba de futuro cum copula,? consti- tutes, at the common law, a complete marriage, we are next to seek for the rules of interpretation to determine, whether or not, in a given case, a statute has altered the law upon the subject. The principle is by no means universal, that, when a statute directs a thing to be done in a particular way, it is void done in any other way; sometimes indeed it is, not always. If we remember, therefore, that marriage existed before statutes, that ever it has been regarded as a thing to be favored in the law, that also it is of natural right, —we shall see very plainly, that, whatever directions a statute may give concerning its solemnization, it should be held good, though not solemnized according to the directions. Consequently the doctrine has become established, that a marriage good at the common law is good notwithstanding the existence of any statute on the subject, unless the statute contains express words of nullity. This rule applies not only to the statute as a whole, but to the several portions of it; so that, if it declares the marriage void for non-compliance with a particular provision, it is good notwithstanding a failure to comply with any other provision. This rule, like most other legal rules now well settled, has struggled against some doubts and uncertainties, but it seems never (unless we except a Massachusetts decision to which we shall presently refer) to have been discarded in actual adjudication® 1 See also the remarks of the court in Dumaresly v. Fishly, 3 A. K. Mar- shall, 368. 2 Ante, § 63, 64, 144. 8 1 Bishop Crim. Law, § 151, 152. * Post, § 169. ; 5 Catterall v. Sweetman, 1 Robertson, 304; Stallwood v. Tredger, 2 [ 158 ] CHAP. VIII.] THE FORMS OF CONSENT. § 168 § 168. Thus where a local statute of the colony of New South Wales provided, among other things, that Presbyterian ministers might solemnize marriages between persons of the Presbyterian communion, but not until the parties had ac- knowledged themselves, in a written declaration in duplicate, to be members of this communion; the Consistory Court of London held, that a marriage was not void by reason of non- compliance with the statute, though both the parties were members, not of the Presbyterian church, but of the English Episcopal, and though they had not made the declaration required by the act. So where in Pennsylvania it was pro- vided, that “ all marriages shall be solemnized by taking each other for husband and wife before twelve sufficient witnesses,” marriages were held to be good, not celebrated in accordance with the statute. In pronouncing this opinion, however, the court seemed not entirely confident of its intrinsic correctness ; but observed, that a contrary determination would bastardize the greater part of the children born for the last half century.? And where the statute of New Hampshire allowed justices of the peace and ministers of the gospel to solemnize marriages ; then provided penalties to be inflicted on these authorized persons solemnizing them otherwise than according to certain directions laid down; then added, in another section, that, “if any person not authorized and empowered to solemnize Phillim. 287; Londonderry v. Chester, 2 N. H. 268; Pearson v. Howey, 6 Halst. 12, 19, 20, opinion of Ford, J.; Rodebaugh v. Sanks, 2 Watts, 9,11; Helffenstein v. Thomas, 5 Rawle, 209; The State v. Robbins, 6 Ired. 23; Newbury v. Brunswick, 2 Vt. 151; Lacon v. Higgins, 3 Stark. 178, D. & R. N. P. C. 38; Dumaresly v. Fishly, 3 A. K. Marshall, 368; Rex v. Birming- ham, 8 B. & C. 29, 34; Hargroves v. Thompson, 31 Missis. 211; Park v. Barron, 20 Ga. 702. See Bradshaw v. The State, 1 Yerg. 177; Milford v. Worcester, 7 Mass. 48,55; Holmes v. Holmes, 6 La. 463; Cannon ». Als- bury, 1 A. K. Marshall, 76; Parton v. Hervey, 1 Gray, 119. And see The State v. Murphy, 6 Ala. 765; Northfield v. Plymouth, 20 Vt. 582. Post, § 175. 1 Catterall v. Sweetman, 1 Robertson, 304. And see Catterall v. Catte- rall, 1 Robertson, 580. ¢ * Rodebaugh v. Sanks, 2 Watts, 9; s. p. Helffenstein v. Thomas, 5 Rawle, 209. [ 159 J § 169 NULLITIES OF MARRIAGE. [Book I. marriages by this act, shall join any persons in marriage, whether with or without publishment, and he be convicted thereof, &c., he shall pay a fine not to exceed £100 nor be less than £30;” the court held, that the parties might still con- tract a valid marriage at the common law, without the presence of a justice or minister So where the first English marriage act (Lord Hardwicke’s) contained the clause, “ that, in all cases where banns shall have been published, the mar- tiage shall be solemnized in one of the parish churches or chapels where such banns have been pnblished, and in no other place whatsoever,” the marriage was held good, solem- nized in a different place? And where a statute prohibited the solemnization of marriage without a license, the marriage was declared to be valid, though no license was had? § 169. Where however in Massachusetts a statute provided, that no persons but justices of the peace and ministers of the gospel should solemnize marriage, and they only in certain specified cases; it was held, that the parties were themselves precluded from solemnizing their own marriage, and that a marriage by mutual agreement, not according to the statute, was void. But this opinion, evidently a departure from the general doctrine, was based on the assumption, that such a marriage would be void at the common law. And, on a later occasion, the court of this State held the marriage of minors, 1 Londonderry v. Chester, 2 N. H. 268. 2 Stallwood v. Tredger, 2 Phillim. 287, compare with Catterall v. Sweet- man, 1 Robertson, 304, 315. 3 Cannon v. Alsbury, 1 A. K. Marshall, 76; Holmes v. Holmes, 6 La. 463. * Milford v. Worcester, 7 Mass. 48, 55. The present marriage act of Massachusetts is similar to that of New Hampshire, as described in London- derry v. Chester, ante, §168; and it imposes a penalty on persons who, knowing they are not authorized, “shall undertake to join others in mar- riage.” R.S.c. 75, § 20. Under similar statutes, in most or all of the other States, parties would be competent to contract a valid marriage by mutual agreement alone; but whether the Massachusetts court would consider the Massachusetts law as being settled the other way is uncertain. 5 Ante, § 163. [ 160 ] CHAP. VIII. ] THE FORMS OF CONSENT. § 170 entered into without consent of parents, good; though a statute prohibited, under a heavy penalty, ministers and mag- istrates to solemnize such marriage without such consent.1 In commenting on the New Jersey statute, Ford, J., well re- marked: “Suppose this act had gone to the whole extent of declaring, that no other person or persons should solemnize marriages, except those mentioned in it; such persons would commit an offence against the act by solemnizing marriages, for which they might be punished, but still the marriage contract between the parties themselves would remain valid. During the Commonwealth of England, Parliament passed a ldw requiring all marriages to be solemnized by justices of the peace; yet a marriage solemnized before a clergyman was holden, by all their courts, to be valid as between the parties, though the statute prohibited such priest from doing it, and for the act he was exposed to punishment.? Our act empowers an ordained minister of the gospel to solemnize marriages; but suppose a minister of the gospel should do it before he is ordained, — can any person believe, that the mar- riage itself would be invalid, and that either of the parties might go away at any time afterwards and contract a new alliance? Our statute prohibits ministers of the gospel from solemnizing the marriage of persons under age, without the consent of parents or guardians, under a very heavy penalty ; but this does not render the marriage void; on the contrary, it remains sacred and inviolable, which is the very thing that aggravates the offence.” 8 § 170. The rule of interpretation we are considering,* was admitted by Dr. Lushington not to be in accordance with the constructions which some other acts, relating to other sub- jects, have received; but “it must always be remembered,” he 1 Parton v. Hervey, 1 Grey, 119. * See the cases on this subject collected in Reeve Dom. Rel. 198. 5 Pearson v. Howey, 6 Halst. 12, 20. And see Holgate v. Cheney, Bray- ton, 156. * Ante, § 167. 14* [161] § 171 NULLITIES OF MARRIAGE. [Boox 111. said, “that marriage is essentially distinguished from every other species of contract, whether of legislative or judicial determination ; that this distinction has been universally ad- mitted ; that not only is all legal presumption in favor of the validity and against the nullity of marriage, but it is so on this principle — that a legislative enactment to annul a mar- riage de facto is a penal enactment, not only penal to the par- ties, but highly penal to the innocent offspring, and therefore to be construed, according to the acknowledged rule, most strictly.” Thus, as already mentioned,! negative and prohibi- tive words in a statute are often held to render what is done under them void, but in a marriage act they do not have this effect. And he observed, of the clause we have cited from Lord Hardwicke’s act,? that “these words are affirmative, negative, and prohibitory.” 8 § 171. One of the most frequent forms in which this ques- tion arises, is, where certain persons are forbidden to solem- nize marriage, or the authorized persons are forbidden to exercise the authority in any other method than the one pre- scribed, and the violators are subjected to punishment. And the rule, that a marriage in disregard of such a penal prohibi- tion is good, seems to be universally recognized* Thus where the local statute of Jamaica rendered it penal for a minister to solemnize marriage without banns or license, the late attorney-general of the colony stated, before the House of Lords, on the hearing of a divorce bill, that in his opinion it did not affect the validity of marriages celebrated without banns or license, though the celebrator would be punishable. 1 Ante, § 167. ? Ante, § 168. > Catterall v. Sweetman, 1 Robertson, 304. And see 1 Bishop Crim. Law, § 151, 152. * The State v. Robbins, 6 Ired. 23; Damon’s case, 6 Greenl. 148; Lon- donderry v. Chester, 2 N. H. 268, 276; and other cases cited ante, § ‘167. 5 Chrewe’s case, Macqueen Parl. Pract. 599. When a statute makes the marriage void if persons knowingly and wilfully intermarry without the pub- lication of banns, it is good unless both parties know that the banns were not published. Rex v. Wroxton, 1 Nev. & M. 712, 4 B. & Ad. 640. [ 162] CHAP. VIII. | THE FORMS OF CONSENT. §173 And this rule seems not to be peculiar to the common law. It exists also in Sicily; so in Scotland, where marriages contrary to the forms established by law are very frequent, and no question remains as to their validity, the law imposes severe penalties upon the parties, the celebrator, and the witnesses.” § 172. The New Jersey statute provided, “that every jus- tice of the peace in this State,” every “stated and ordained minister of the Gospel,” and “every religious society accord- ing to its rules,” should be empowered to solemnize mar- riage. And the court held, that, under this statute, justices of the peace might marry out of their several counties, and ministers out of their parishes. ‘I'he books contain various. other decisions upon the construction of matrimonial statutes, but they are chiefly applicable only in particular States, and we need not detain the reader with them. § 173. No particular words are essential in the solemniza- tion'of marriage, unless the statute expressly makes them so. It is sufficient for the proper person, as a minister or justice, to be present, and take cognizance of the mutual engagement of the parties to assume the marital relation. But if such per- son does not consent to act in his official capacity, and does not so act, though he is present and witnesses their mutual undertaking, the ceremony has no other effect than if witnessed by an unauthorized person Yet the defect would not, as we have seen,® vitiate the marriage, unless the statute contained an express clause nullifying all marriages not celebrated by 1 Herbert v. Herbert, 2 Hag. Con. 263, 4 Eng. Ec. 534, 540. 2 1 Fras. Dom. Rel..120 et seq. 3 Pearson v. Howey, 6 Halst.12. As to who is a minister, in North Caro- lina; see The State v. Bray, 13 Ired. 289... * Pearson v. Howey, 6 Halst. 12; Londonderry v. Chester, 2 N. H. 268, 280; Graham v. Bennet, 2 Cal. 503; The State v. Rood, 12 Vt. 396. § Milford v. Worcester, 7 Mass. 48; Mangue v. Mangue, 1 Mass. 240. 5 Ante, § 167. [163 ] § 173 NULLITIES OF MARRIAGE. [Book II. such official person. At the common law, we have also seen, it was not necessary, even according to those who hold to the necessity of the presence of a minister in holy orders, that he should have taken any part, or even consented to act, in the ceremony. And the Court of Queen’s Bench in Ireland, in a recent case, decided that a clergyman may marry himself.? * Ante, § 154. ? Beamish v. Beamish, 1 Jur. x. s. 455, part IL, for Nov. 24,1855. This case is so novel and interesting, that, since it will not probably appear in any series of reports generally circulated in this country, I cannot resist the temptation to copy the whole of it, from'the Jurist as above cited. “ Cramp- ton, J., delivered the judgment of the court in this interesting case. His lordship commenced by observing, that the case had been ably argued by counsel last term, and the questions raised were so novel and important that it stood over for the mature consideration of the court until the present term. It had been heard in the absence of the Lord Chief Justice, and therefore it devolved upon him to deliver judgment. He (Crampton, J.) was glad to be enabled to say that it was an unanimous judgment, although, for the grounds upon which he rested it, he was alone responsible. The case came before the court upon a special verdict, finding that the plaintiff brought an ejectment to recover certain lands in the county of Cork, a considerable estate, and he claimed to be entitled to the same as grandson and heir at law of Dr. John Swayne Beamish. The defendant denied the legitimacy of the plaintiff, and claimed as heir at law of Dr. Beamish; and such he un- doubtedly was, unless the plaintiff’s legitimacy was established. The facts as stated in the special verdict were these: — The late Dr. John Swayne Beam- ish was in his lifetime seized of considerable estates in fee-simple, and died on the 16th December, 1852. He had several sons, and the eldest was the Rev. Samuel Swayne Beamish, the defendant being the next brother of the latter. The Rev. Samuel Swayne Beamish was duly ordained a clergyman of the United Churches of England and Ireland, and it appeared that on the 27th November, 1832, being then in holy orders, he went to the house of Anne Lyons, in the city of Cork, and there performed a ceremony of mar- riage between himself and Isabella Frazer. The special verdict described the manner in which the ceremony took place, and the general form of sol- emnization was that set out in the Book of Common Prayer of the United Churches of England and Ireland, Mr. Beamish then declaring that he took the said Isabella Frazer t6 be his wedded wife, she taking him to be her wedded husband. The wedding-ring was then placed upon her finger, and the blessing pronounced. After the ceremony, it was stated that the marri- age was consummated between the parties. No clergyman was present at the performance of the ceremony except the Rev. Samuel Swayne Beamish [ 164 ] CHAP. VIII.] THE FORMS OF CONSENT. § 178 This decision is contrary to the Massachusetts rule on another subject. There, a statute having provided for the submission, himself, nor was any one present as,a witness; but it was added, in the special verdict, that the performance of the ceremony was seen by Catherine Coffey, who, without the privity of the parties to the marriage, witnessed it from an adjoining yard, but did not hear what passed. It was further stated that Isabella Frazer was a member of the Church of England. It further appeared that the Rev. Samuel Swayne Beamish, who thus celebrated this marriage, died intestate on the 8th April, 1844, and the plaintiff, who is now a minor, was his eldest son, begotten on the body of Isabella Frazer in Jan- uary, 1841. He (Crampton, J.) had stated in minute detail, and almost in the words of the special verdict, the facts which had been found; and the question was, whether upon those facts the plaintiff was entitled to recover the lands the subject of the ejectment. With respect to the facts there could be no possible doubt, for they were the statements of both parties upon the record. If the plaintiff was the legitimate son of the Rev. Samuel Swayne Beamish, he was entitled as grandson of Dr. Beamish; if not, then the de- fendant was entitled as the second son of Dr. Beamish. The first question to be considered was, had there been used at the ceremony in question words of present contract, by which the Rev. Samuel Swayne Beamish and Isa- bella Frazer engaged to become husband and wife? Secondly, had there been a marriage ceremony performed according to the form prescribed by the Book of Common Prayer? Thirdly, was the marriage so solemnized consummated between the parties? Fourthly, what was the effect of the. marriage ceremony, there being no other clergyman present? And lastly, whether, although there was no witness regularly present, the facts stated in reference to Catherine Coffey constituted her a witness? It appeared to all the members of the court who heard the case argued, that a valid, although an irregular and clandestine, marriage had been solemnized upon the day and year stated in the special verdict. It was quite unnecessary for him (Crampton, J.) to go into a consideration of the canon law, it having been so fully discussed in the course of the arguments; neither was it necessary to go into any review of the numerous cases upon the subject antecedent to Reg. c. Millis, (10 Cl. & F. 534). In that case the unanimous opinion of the English judges was delivered by that eminent judge, Tindal, C. J.; and he stated, that, by the law of England at the time of the passing of the Marriage Act, a marriage ceremony by present words and contract was not valid, un- less in the presence and with the intervention of a minister in holy orders. The House of Lords adopted that opinion; and Parke, B., observed, in the case of Catherwood v. Caslon (13 M. & W. 264), that the judges were bound to obey this decision. Negatively, the case of Reg. v. Millis decided, that a contract of marriage, however solemn, was not valid without the intervention of a minister in holy orders; and affirmatively it established, that where the [165] § 173 NULLITIES OF MARRIAGE. [Book IIL before a justice of the peace, of claims to the award of arbi- trators ; the submission is held to be void, when one of the arbitrators is the justice before whom it is made.t two elements concurred, a contract of marriage in the present tense, and the intervention of a minister in orders, then the marriage was valid. The dis- senting law lords thought that the marriage was complete without any relig- ious ceremony, having probably in view the Scottish law; for one of their lordships had been born in Scotland, and another educated in the same country. It was manifest in the case now before the court, that there was a serious intention on the part of the Rev. Samuel Swayne Beamish and Isa- bella Frazer to take each other as husband and wife, and to perform all the duties of that relationship; and, in order to obtain the sanction of religion, a ceremony was performed by a minister of the church. It seemed to him (Crampton, J.), after an attentive perusal of the judgment given by the law lords, that they would have deemed the marriage in the present case to be a valid one, and that no particular form of religious ceremony was required, if there was a religious ceremony which the parties who were married felt to be a ceremony invoking a religious obligation. The argument of the de- fendant’s counsel was, that the minister who performed the ceremony appeared here to be the bridegroom himself, and that one of the functions of the min- ister was to be also a witness of what had taken place. No doubt it was very important that he should be a witness ; but was the implication neces- sary, that he could not therefore dispense with the advantage resulting from this species of testimony ? It had also been urged, that the ceremony pre- scribed in the Book of Common Prayer could not be in terms used upon such an occasion as the marriage of a minister by himself; and no doubt it would become necessary to change part of the language, to make it suitable ’ to such an occasion. But in answer to this it was urged, that the office of a minister was a religious office, and, although he might be a witness to the ceremony, and a most important one, that was not his primary duty — that, although it might be very important to have a person legally competent to attest the transaction, he was there in the first instance for the great purpose of performing a religious ceremony. As to the form prescribed in the Book of Common Prayer, there was a literal departure from it when the minister addressed himself on the occasion of partaking of the Sacrament of the Lord’s Supper, and he was authorized by the rubric to make such a change in the words; and he (Crampton, J.) might add, that, although the rubric required the rite of baptism to be performed by a minister in orders, yet its perform- ance by a layman did not avoid the act, and it was permissible for a layman to interpose in cases of emergency. An irregular and clandestine marriage 1 Drew v. Canady, 1 Mass. 158; Deerfield v. Arms, 20 Pick. 480. [166 ] CHAP. VIII] THE FORMS OF CONSENT. §174 III. Concerning the Consent of Parents. § 174. The consent of parents to the marriages of their minor children is not, at the common law, essential to the va- lidity of such marriages;! though the parties themselves must have arrived at what is called the age of consent.2 It used to be, as now, unlawful in England to celebrate marriages in private, and so no clergyman of reputation would marry any persons without either license or banns., When the marriage was by license, there was an oath that the parties were of age; or, if under age, that they had the consent of parents or guardians. When by banns, their minority was no objection. All marriages other than by banns or license, called clandes- tine, were illegal, but not void ; and they became so common, was not therefore void, but the clergyman who celebrated such was subject to ecclesiastical censure. There was abundant authority as to the validity of clandestine and irregular marriages, both before ecclesiastical and com- mon law tribunals. A strong appeal had’ been made by the defendant’s counsel upon the danger of countenancing clandestine marriages, and the consequences likely to arise from establishing such a doctrine. He agreed that an unscrupulous clergyman (and such were happily very few) might for his own base purposes exercise an improper influence, arising from his position ; but such cases would be exceedingly rare. The argument consti- tuted an appeal to the legislature, and not to the court, which was bound to pronounce what the law actually was. The judgment upon the special ver- dict should be for the plaintiff. “ Perrin, J., said he fully concurred in the able judgment just pronounced, and in the arguments by which it had been supported, save upon one point. He denied that Reg. v. Millis was an authority to bind the court; because, while three learned and eminent law lords held one opinion, three as equally learned and distinguished pronounced an opinion the other way. “Moore, J., concurred.” * Rex v. Hodnett, 1 T. R. 96; Cannon v. Alsbury, 1 A. K. Marshall, 76; Pool v. Pratt, 1 D. Chip. 252; Coleman’s case, 6 N. Y. City Hall Reporter, 3; Horner v. Liddiard, 1 Hag. Con. 337; Fielder v. Smith, 2 Hag. Con. 193; Droney v. Archer, 2 Phillim. 327; Priestly v. Hughes, 11 East, 1; Har- groves v. Thompson, 31 Missis. 211; The Governor v. Rector, 10 Humph. 57; Wadd. Dig. 229. ® Post, §191 et seq. [167] § 175 NULLITIES OF MARRIAGE. [Book IIL. that places were set apart in the Fleet and other prisons for their celebration.1 The want of the consent of parents was, in the language of the ecclesiastical law, an impedimentum impeditivum, an impediment which threw an obstruction in the way of the celebration; but not an impedimentum diri- mens, an impediment affecting the validity of the marriage once solemnized.2 And the Kentucky court has held, that a parent, as such, cannot maintain an action for procuring, with- out his consent, the marriage of an infant child; though per- haps, if the child were a servant, the suit might be maintained on the ground of loss of services. § 175. Thus stood the common law, brought by our fore- fathers to this country. In England, Lord Hardwicke’s mar- riage act‘ at a later period provided, that all marriages of minors not in widowhood, solemnized by license (not includ- ing marriages by banns), should be void, when entered into without the consent of the father if living, or, if dead, of the guardians, or of the mother, or of the court of chancery. Great mischiefs were found to grow out of this absolute nul- 1 Lord Mansfield, in Rex v. Hodnett, supra. Mr. Macqueen, in his late work on “ Divorce and Matrimonial Jurisdiction,” states the matter of the Fleet Prison marriages as follows: ‘ Prior to the middle of the last century, there was in the Fleet Prison a colony of degraded ecclesiastics, who derived. their livelihood from celebrating clandestine marriages for fees smaller than those legally taken at the parish church. Already incarcerated for debt or for delinquencies, the reverend functionaries were beyond the reach of epis- copal correction. In some instances their profits were very great. Thus we are told, that by one of them six thousand couples were married in a sin- gle year ; whilst, at the neighboring parish church of St. Andrews, Holborn, the number of marriages solemnized in the same period was but fifty-three. These clandestine connections were also celebrated at Mayfair, at Tyburn, and in other parts of London ; and, through the instrumentality of the hedge parsons, they were common all over the kingdom, — in fact, greatly more so than marriages in the face of the church.” Macqueen Div. & Mat. Jurisd. 2. 2 Horner v. Liddiard, 1 Hag. Con. 837, 348. 3 Jones v. Tevis, 4 Litt. 25. 4 26 Geo. 2, c. 33, § 11. [168 ] CHAP. VIII. ] THE FORMS OF CONSENT. § 175 lity, thus created. For example, when a person under age married by license, with the consent of the mother, the father being absent and supposed to be dead, the marriage was declared void for the want of the father’s consent.!. The same was held.in other cases of the like nature; and neither length of cohabitation, nor lapse of time, nor subsequent acquies- cence, nor the birth of children, could cure the defect.2. This legal hardship the courts could not mollify by construction. Yet they not only allowed the consent to be inferred from slight circumstances ; but, in the language of Lord Stowell, “to obviate the consequences which must be most unfavor- able to the issue of the marriage in case of a sentence of nullity, the court has, in the construction of the statute, held (not without some controversies arising in other quarters), that it is necessary to prove the negative of consent in the strongest terms.”® Later English legislation, however, has so regulated this matter, that the want of the consent of parents and guardians, though required by law, does now in no case render the marriage void! If a'statute requires the parental consent, but does not expressly make the marriage void 1 Hayes v. Watts, 2 Phillim. 43. 2 Jones v. Robinson, 2 Phillim. 285; Johnston v. Parker, 3 Phillim. 39; Reddall v. Leddiard, 3 Phillim. 256; Turner v. Felton, 2 Phillim. 92; Days v. Jarvis, 2 Hag. Con. 172; Droney v. Archer, 2 Phillim. 327; Fielder v. Smith, 2 Hag. Con. 193; Clarke v. Hankin, 2 Phillim. 328, note; Duins v. Donovan, 3 Hag. Ec. 301; Rex v. James, Russ. & Ry. 17. 5 Days v. Jarvis, 1 Hag. Con.172. And see Hodgkinson v. Wilkie, 1 Hag. Con. 262; Smith v. Huson, 1 Phillim. 287; Cresswell v. Cosins, 2 Phillim. 281; Sullivan v. Sullivan, 2 Hag. Con. 238; Balfour v. Carpenter, 1 Phillim. 221; Doe v. Price, 1 Man. & R. 683; Cope v. Burt, 1 Hag. Con. 434; 2 Burn Ec. Law, Phillim. Ed. 437, 438; Rogers Ec. Law, 2d ed. 612, note a; Wadd. Dig. 229-231; Harrison v. Southampton, 21 Eng. L. & Eq. 343. And for an illustration of the principle laid down in the text, see Piers v. Piers, 2 H. L. Cas. 831. See, however, Rex v. Butler, Russ. & Ry. 61. * Rex v. Birmingham, 8 B. & C. 29, 2 M. & R. 230; Rogers Ee. Law, 2d ed. 611. See Rex v. Waully, 1 Moody, 163, 1 Lewin, 23; Rex v. St. John Delpike, 2 B. & Ad. 226. 15 [169] § 175 NULLITIES OF MARRIAGE. [BooK IIL. celebrated without it,! still it will be good, though the con- sent is not given? 1 See ante, § 167, 169. . ? Goodwin v. Thompson, 2 Greene, Iowa, 329; Parton v. Hervey, 1 Gray, 119. Seeas to the construction of the Arkansas statute, Smyth v. The State, 8 Eng. 696. [170] CHAP. IX. ] WANT OF MENTAL CAPACITY. §177 CHAPTER IX. WANT OF MENTAL CAPACITY. Src. 176-179. A general Survey of the Subject. ‘180-188. Particular Applications of the Law. 184-186. Evidence and Procedure. ‘ 187-190. How voidable, and whether confirmed by Cohabitation. § 176. Fottowre the not quite philosophical order of dis- cussion already indicated,! we come next to the proposition, that, for the marriage to be good, both parties to it must have sufficient mental capacity to consent; in other words, must be of sound mind. This chapter, therefore, only conducts us through another division of the great law of consent, already explained ;? and, but for the convenience of considering the matter of it separately, a previous title would have received the augmentation of a confluence with this. §177. Anciently the marriage of persons of unsound mind was supposed to be valid; a conclusion drawn probably from a notion, prevalent in the'dark ages, of something mysterious in the marital relation, whereby its spiritual character almost obliterated its civil “ A strange determination,” says Black- 1 Ante, § 43, 44. * Ante, § 42, 46 et seq. * Portsmouth v. Portsmouth, 1 Hag. Ec. 355, 3 Eng. Ec. 154,156; Jenkins v. Jenkins, 2 Dana, 102; Crump »v. Morgan, 3 Ired. Eq. 91 ; Foster v. Means, 1 Speer Eq. 569; Fornshill v. Murray, 1 Bland, 479; Turner v. Meyers, 1 Hag. Con. 414, 4 Eng. Ee. 440; Browning v. Reane, 2 Phillim. 69, 1 Eng. Ee. 190; Legeyt v. O’Brien, Milward, 325, 333; True v. Ranney, 1 Fost. N. H. 52; Ward v. Dulaney, 23 Missis. 410; Keyes v. Keyes, 2 Fost. N. H. 553; Rawdon v. Rawdon, 28 Ala. 565. * Turner v. Meyers, 1 Hag. Con. 414, 4 Eng. Hc. 440, 441. It seems very remarkable, that even some American judges have latterly entertained the [171] § 178 NULLITIES OF MARRIAGE. [B0ox III. stone, “since consent is absolutely requisite to matrimony, and neither idiots nor lunatics are capable of consenting to any thing. And therefore the civil law judged much more sensi- bly when it made such deprivations of reason a previous im- pediment; though not a cause of divorce, if they happened after marriage. And modern resolutions have adhered to the reason of the civil law, by determining, that the marriage of a lunatic, not being in a lucid interval, was absolutely void.”? It matters not what the particular defect of reason is;? for the tule is general, that those who have not the regular use of their understanding, sufficient to deal with the common affairs of life, the difficulty being, not a mere weakness, but a derangement, or the weakness being so considerable as to amount to derangement, are incapable of entering into a valid marriage, or of making any other binding contract? § 178. As applied to marriage, the test of insanity has been held to be, whether or not the party was capable of making a contract. “If the incapacity be such,” said Sir John Nicholl, same idea of marriage being good, at the common law, celebrated between insane persons. Hamaker v. Hamaker, 18 Ill. 137; Park v. Barron, 20 Ga. 702. 1 2 Bl. Com. 438, 439; Crump v. Morgan, 3 Ired. Eq. 91, 96. * 1 Bishop Crim. Law, § 291, and note. And see Ball v. Mannin, 3 Bligh, N.S. 1, 21; 1 Dow & Cl. 380, 391; Baxter v. Portsmouth, 5 B. & C.170; Ex parte Barnsley, 3 Atk. 168, 171. ® Foster v. Means, 1 Speers Eq. 569, 574. * Anonymous, 4 Pick. 32; Middleborough v. Rochester, 12 Mass. 363. See Page on Div. 192,193. But see Ex parte Glen, 4 Des. Eq. 546. In Ward v. Dulaney, 23 Missis. 410, 414, 415, it was observed: “‘ What degree of mental imbecility, what extent of intellectual aberration, will suffice to annul a contract of marriage, it is difficult to pronounce; certainly mere weakness of intellect, or even great eccentricity of conduct, unless it reaches a point that evinces inability to comprehend the subject-matter of the con- tract, will not suffice; and every principle of sound policy and humanity admonishes us, that a contract so important in its social relations, and bear- ing so materially on the peace and happiness of families, should not be set aside upon slight grounds, or on less proof than would suffice to annul con- tracts less sacred and important in their nature.” [172] ~ CHAP. IX.] WANT OF MENTAL CAPACITY. § 179 “that the party is incapable of understanding the nature of the contract itself, and incapable, from mental imbecility, to take care of his or her own person and property, such an individual cannot dispose of his or her person and property by the matrimonial contract, any more than by any other contract. The exact line of separation between reason and incapacity may be difficult to be found and marked out in the abstract; though it may not be difficult, in most cases, to decide upon the result of the circumstances.”! And Lord Stowell has observed: “Madness may subsist in various degrees ; sometimes slight, as partaking rather of disposition or humor, which will not incapacitate a man from managing his own affairs, or making a valid contract.. It must be some- thing more than this, something which, if there be any test, is held, by the common judgment of mankind, to affect his general fitness to be trusted with the management of himself and his own concerns.” 2 § 179. Thus we have drawn from the decisions the general proposition, that the mental unsoundness which disqualifies persons to enter into matrimony is the same which disquali- fies them generally from making a contract. But this propo- sition furnishes us with only slight practical help, in consider- ing the circumstances of different cases. And plainly, when the question is, whether a party was capable of giving his consent to a particular thing, the nature of the thing must be taken into the account. Upon this principle, and this only, is founded the doctrine very familiar to the legal profes- sion, that a difference exists between the insanity which dis- qualifies to make a contract, and the insanity which prevents the last will and testament from being valid. Therefore let us look a little at the adjudications in respect of the insanity which makes a marriage void. 1 Browning v. Reane, 2 Phillim. 69, 70, 1 Eng. He. 190, 191. 2 Turner v. Meyers, 1 Hag. Con. 414, 4 Eng. Ec. 440, 442. In Foster v. Means, 1 Speers Eq. 569, is a statement of facts held to evidence such im- becility as disqualifies the party to contract matrimony. 15* [173 ] § 180 NULLITIES OF MARRIAGE. [Boox III. § 180. In England, by statute 15 Geo. 2, c. 30, if a commis- sion of lunacy has been taken out against a party, and it remains unrevoked, his marriage, though celebrated during a lucid interval, is void! But where no commission of lunacy has been taken out, the marriage of a lunatic, during a lucid interval, is good; and so it was in all circumstances in Eng- land before this statute,? and so therefore it is now by the common law of the American States generally. On the other hand, the marriage of a person habitually sane, celebrated in a period of temporary insanity, is invalid. The question in all cases is, whether the mind, at the time of the alleged consent, was capable of consenting. Therefore insanity, occurring subsequently to the nuptials, if the mind was sound at the time, does not affect their original validity, neither is it believed to be anywhere a cause of divorce. But evi- dently if there are manifestations of mental disorder imme- diately following the ceremony, they may shed light on the condition of the mind at the time. And Dr. Ray considers, that there are cases of this kind of an extremely embarrass- ing nature> It has been held, that the commission of sui- cide directly after the marriage is not sufficient evidence of insanity to render it void; and indeed the broad doctrine seems to have been maintained, that this is no evidence.® 1 Turner v. Meyers, 1 Hag. Con. 414, 4 Eng. Ec. 440, 442; Shelford Mar. & Div.191,197. See Cartwright v. Cartwright, 1 Phillim. 90,1 Eng. Ec. 47; Coglan v. Coglan, cited 3 Bro. C. C. 444; Wheeler v. Alderson, 3 Hag. Ec. 574, 599, 5 Eng. Ec. 211, 223 ; Borlase v. Borlase, 4 Notes Cas. 108; Grimani v. Draper, 12 Jur. 925. ? Shelford Mar. & Div. 197; Turner v. Meyers, 1 Hag. Con. 414, 4 Eng. Ec. 440, 442. * Legeyt v. O’Brien, Milward, 325; Parker v. Parker, 2 Lee, 382, 6 Eng. Ec. 165. * Parnell v. Parnell, 2 Hag. Con. 169; Page on Div. 185, note; Shelford Mar. & Div. 190. ° Ray Med. Jurisp. Insan. 2d ed. § 201. See Wheeler v. Alderson, 3 Hag. Ee. 574, 5 Eng. Ee. 211. ° McAdam v. Walker, 1 Dow, 148,180. And see Burrows v. Burrows, 1 Hag. Ec. 109, 3 Eng. Ec. 49; Chambers v. The Queen’s Proctor, 2 Curt. Ec. [174] CHAP. 1x. ] WANT OF MENTAL CAPACITY. § 181 § 181. A learned judge has observed, that a marriage will not be rendered void by being entered into while the party was intoxicated; though insanity from delirium tremens, pro- duced by intoxication, will avoid it There is no question of the latter branch of this proposition;? and even as to the former the rule applicable to contracts generally, doubtless therefore to marriage, is, that mere intoxication, while the party retains his reason and knows what he is about, will not make the contract void.2 It was moreover at one time held, in respect to contracts generally, that intoxication unmingled with fraud was no excuse, and created no privilege in avoid- ance of them;‘ and the rule in equity seems still to be, that the court will not interfere to assist a party to a contract on the ground merely of intoxication, where no unfair advantage was taken.2 But the settled doctrine of modern law is, that, since a person to make a valid agreement must have an agreeing mind,® a contract entered into by one so intoxicated as not to know what he is about is of no validity. The better opinion holds it unnecessary to charge the defendant 415, 7 Eng. Ec. 151; 1 Fras. Dom. Rel. 46. Probably the better rule is to receive the evidénce of suicide when offcred in connection with other testi- mony, but to reject it when standing alone. In a Tennessee case, Reese, J., observed: “ A will prepared in view of suicide, and of course under the influence of the morbid and unhappy feelings leading to that catastrophe, must, where its validity is in question, be largely affected by that circum- stance.” Pettitt v. Pettitt, 4 Humph. 191, 193. 1 Clement v. Mattison, 3 Rich. 93. * Legeyt v. O’Brien, Milward, 325. 3 Gore v. Gibson, 13 M. & W. 623. * 2 Kent Com. 451, and the authorities there cited; Johnson v. Medlicott, 3 P. Wms. 130, note; Cooke v. Clayworth, 18 Ves. 12. a 5 2 Kent Com. 452, 6th ed. note b. See, however, Clifton v. Davis, 1 Par- sons, 31. And see Shaw v. Thackary, 23 Eng. L. & Eq. 18., 6 Lord Ellenborough, in Pitt v. Smith, 3 Camp. 33; Gore ». Gibson, 13 M. & W. 623; Clifton v. Davis, 1 Parsons, 31. So on an indictment for an attempt to commit suicide, the court observed to the jury: “If the prisoner was so drunk as not to know what she was about, how can you find that she intended to destroy herself?” and she was accordingly acquitted. Reg. v. Moore, 16 Jur. 752; and see the observations on this case in 1 Am. Law Reg. 37. See also 1 Bishop Crim. Law, § 298-310. [175] § 181 NULLITIES OF MARRIAGE. [Boox 111. with fraud, in order to produce this legal consequence ;1 though some of the cases go to the extent, that he must be connected with the intoxication,? or, at least, must have taken some unfair advantage of the other’s situation? In Indiana, Sullivan, J., observed: “ Drunkenness of itself merely, unless fraud be practised, will not avoid a contract; but, if the party be in such a state of intoxication that he is for the time deprived of reason, the contract is void.”* The true distinction is, that, while in criminal jurisprudence a man is ordinarily to be held for his criminal act, committed in a fit of mere intoxication however oblivious, since his assent to the drink- ing to excess is a criminal assent,° — yet, in civil jurisprudence, the doctrine of contracts holds him only when his mind is capable of contracting, not permitting another person to gain an advantage from his mere intent to drink. Applying the doctrine to marriage, this relation was in Scotland held not to have been entered into, and the form of marriage by mutual promise was pronounced void, where the woman was shown to have been in such a state of intoxication as to be incapable of giving a valid consent. The incapacity flowing from drunkenness is not looked upon as permanent insanity, but is rather likened to intermittent, ceasing with the exciting cause.’ At the same time, the cases cannot be numerous in 12 Kent Com. 452; Chitty Cont. Perkins’s ed. 140, note ; Story Cont. § 27; Smith on Contracts, 233 and note; Barratt v. Buxton, 2 Aikens, 167; Fenton v. Holloway,1 Stark. 126; Bennett v. The State, Mart. & Yerg. 133; Cornwell v. The State, Mart. & Yerg. 147. 2 Woods v. Pindall, Wright, 507; Barney v. Dimmitt, Wright, 44. And see The State v. Turner, Wright, 20, 80; The ae v Thompson, Wright, 617, 622; 2 Greenl. Ev. § 374. ? Hutchinson v. Tindall, 2 Green Ch. 357. 4 Jenners v. Howard, 6 Blackf. 240. 5 1 Bishop Crim. Law, § 298 et seq. * Johnston v. Brown, 2 Scotch Sess. Cas. new ed. 437; 8. c., where the facts are more fully reported, Ferg. Consist. Law, Rep. 229. This case ap- pears to embrace also some of the elements of fraud.. ™ Wheeler v. Alderson, 3 Hag. Ec. 574, 5 Eng. Ec. 211; 1 Fras. Dom. Rel, 48; Shelford Mar. & Div. 199. ° [ 176 ] CHAP. IX,] WANT OF MENTAL CAPACITY. § 184 which a marriage will in fact be celebrated while one of the parties is too drunk to understand what is going on, unless the other is practising some fraud in the matter. For no honest minded person would be willing to go over the form of mat- rimony with another known to be beastly drunk, even though willing under other circumstances to marry a drunkard. § 182. We hardly need say, that a person deaf and dumb may still be competent to contract matrimony. He may enter into it by signs! The same principle applies to one deprived of sight. § 183. The cases oftenest occurring are where partial insan- ity, or great weakness of intellect, is circumvented by fraud? Of this nature was the Earl of Portsmouth’s case: the earl, being of weak mind, somewhat disordered, was led, by the artifice of his trustee and solicitor, whose influence over him was great, into a marriage with this person’s own daughter; and the marriage was declared void. And the case of Browning v. Reane is of the like nature; where a,man of forty contrived to bring about, between himself and a woman of seventy, —a drunkard, with considerable property, which he meant to secure,—a marriage without a settlement, or the knowledge of her friends. It also was held to be void. § 184. Some question has been made as to which party, in a suit for nullity of marriage on the ground of insanity, must assume the burden of proving in what state of mind it was celebrated. The full and complete discussion of this ques- tion would lead us further into the general law of evidence, than it would be consistent with the object of these pages for 1 Dickenson v. Blisset, 1 Dicltens, 268; Elyot’s case, Cart.53; Brower v. - Fisher, 4 Johns. Ch. 441; 1 Fras. Dom. Rel. 48. 2 Ante, § 116, 120. 3 Portsmouth v. Portsmouth, 1 Hag. Ee. 355, 3 Eng. Ec. 154. * Browning v. Reane, 2 Phillim. 69, 1 Eng. Ec. 190. [177] § 184 NULLITIES OF MARRIAGE. [BooK III. us to go. The proposition however has been laid down, that, when the fact of marriage between parties of sufficient age is established, the law presumes them to have been capa- ble of giving a valid consent; and he who alleges the contrary must prove it! On the other hand, the doctrine is stated to be, that, when a condition of permanent insanity is once shown, the burden shifts, and he who claims there was a lucid inter- val must prove it2 Yet if the insanity is temporary, depend- ‘ing on some exciting cause not in perpetual action, the rule is said to be different; and the burden still remains with him who alleges the insanity, to show that it, or its cause, was in oper- ation at the very time of the marriage.? And this distinction probably explains why Sir George Lee, in Parker v. Parker, refused to pronounce against the marriage; * a result different from what was arrived at in the Scotch case of Brown v. Johnston, where the woman was shown to be in the habit of getting drunk, insanity always accompanying her intoxication ‘and continuing for a time after the drunken fit was over, and 1 Browning v. Reane, 2 Phillim. 69, 1 Eng. Ec.°190; Wheeler v. Alder- son, 3 Hag. Ec. 574, 598, 5 Eng. Ec. 211, 223; Hale P. C. 33; Legeyt v. O’Brien, Milward, 325, 334; Powell v. Powell, 27 Missis. 783. See Cham- bers v. The Queen’s Proctor, 2 Curt. Ec. 415, 7 Eng. Ec. 151; 1 Fras. Dom. Rel. 45. ? Turner v. Meyers, 1 Hag. Con. 414, 4 Eng. Ec. 440, 442; Terry v. Buf- fington, 11 Ga. 337. See Groom v. Thomas, 2 Hag. Ec. 433, 4 Eng. Ec. 181; Cartwright v. Cartwright, 1 Phillim. 90,1 Eng. Ec. 47; Grimani v. Draper, 12 Jur. 925; White v. Driver, 1 Phillim. 84, 1 Eng. Ec. 44; Kem- ble v. Church, 3 Hag. Ec. 273, 5 Eng. He. 107, where the long interval of seventeen years since the insanity proved was held to be a material cireum- stance. And see on this point Arbery v. Ashe, 1 Hag. Ec. 214, 3 Eng. Ec. 89; Brogden v. Brown, 2 Add. Ec. 441, 2 Eng. Ec. 367; 1 Greenl. Ev. § 42. 5 Legeyt v. O’Brien, Milward, 325, 334, 335. See also White v. Wilson, 13 Ves. 87; Hall v. Warren, 9 Ves. 605, 611; Ayrey v. Hill, 2 Add. Ec. 206, 209, 2 Eng. Ec. 269, 271; Wheeler v. Alderson, 3 Hag. Ec. 574, 5 Eng. Ec. 211; Brogden v. Brown, 2 Add. Ec. 441, 2 Eng. Ec. 3673 Stewart v. Redditt, 3 Md. 67. * Parker v. Parker, 2 Lee, 382, 6 Eng. Ec. 165. [178] CHAP. IX.] WANT OF MENTAL CAPACITY. § 185 she was proved to have been intoxicated before and at the time of the marriage. § 185. When the insanity of a party has been established, no sufficient proof of a lucid interval arises from the mere fact that he went through the marriage ceremony with propriety and decorum. “The mere joining: of hands,” remarks Dr. Ray,? “and uttering the usual responses, are things not worth considering ; it is the new relations which the marriage state | creates, the new responsibilities which it imposes, that should fix our attention as the only points in regard to which the ” question of capacity can be properly agitated. In other con- tracts, all the conditions and circumstances may be definite and brought into view at once, and the capacity of the mind to comprehend them determined with comparative facility. In the contract of marriage, on the contrary, there is nothing definite or certain; the obligations which it imposes do not admit of being measured and discussed; they are of an ab- stract kind, and constantly varying with every new scene and condition of life. "With these views, we are obliged to dis- sent from the principle laid down by the Supreme Judicial Court of Massachusetts, in a case of libel for divorce for in- sanity of the wife at the time of the marriage, that the fact of the parties being able to go through the marriage ceremony ’ Brown v. Johnston, Ferg. Consist. Law, Rep. 229. “It is established by every witness who knew Miss Brown, that, after a fit of intoxication, which generally lasted for many days at a time, she was not in a state of mind to judge of any thing serious for several days after she got out of it; and, when it is considered. that her liquor was ardent spirits, every person must be con- vinced of the truth of that evidence. As therefore the complainer, who knew this as well as any other person, went.off with Miss Brown while she was in a state of inebriety, in which she had been for nine immediately pre- ceding days, it was his duty to prove, that, during the course of the week, from Monday to Saturday [the marriage was on Monday evening, and on Saturday she left the pretended husband, and refused to have any further communication with him], she had been in the state of sane recollection, and acknowledged him as her husband.” The Lord Ondniaey 's note: of the case, p- 251. See also Browning v. Reane, supra. 2 Ray Med. Jurisp. Insan. 2d ed. § 200. [179] * § 186 NULLITIES OF MARRIAGE. [BooK II. with propriety was primd facie evidence of sufficient under- standing to make the contract... If by making the contract is meant merely the giving of consent, and the execution of cer- tain forms, then indeed the fact of the party’s going through the ceremony with propriety may be some evidence of suffi- cient understanding to make it; but, if the expression includes the slightest idea of the nature of the relations and duties that follow, or even of the bonds and settlements that sometimes accompany it, then the fact here mentioned is no evidence at all of sufficient capacity. Sir John Nicholl, looking at the subject in a different light, has very properly said, ‘ going through the ceremony was not sufficient to establish the capac- ity of the party, and that foolish crazy persons might be in- structed to go through the formality of the ceremony, though wholly incapable of understanding the marriage contract.’ ? In a similar case, Lord Stowell, then Sir William Scott, had previously observed, on the fact given in evidence that the party had ‘manifested perfect propriety of behavior during the ceremony, that much stress was not to be laid on that cir- cumstance, as persons in that state will nevertheless often pursue a favorite purpose with the composure and regularity of apparently sound minds, ”8 § 186. If the insane person has recovered his reason, being of lawful age, any suit on his behalf to establish the nullity of the marriage must be brought in his own name.t But though one is permitted thus to plead his own former in- 1 Anonymous, 4 Pick. 32. This is a brief case, little considered by the court. The question of the burden of proof was not discussed in it; and it cannot be taken, in any view of it, as an authority for the proposition, that propriety of conduct during the marriage ceremony would be sufficient evi- dence in itself alone of a lucid interval, in persons shown to be habitually insane. * Browning v. Reane, 2 Phillim. 69, 1 Eng. Ec. 190, 197. * Turner v. Meyers, 1 Hag. Con. 414,4 Eng. Ec. 440, 444. See also Parker v. Parker, 2 Lee, 382, 6 Eng. Ec. 165. * Wightman v. Wightman, 4 Johns. Ch. 343; Turner v. Meyers, 1 _— Con. 414, 4 Eng. Ec. 440. [ 180 } CHAP. IX.] WANT OF MENTAL CAPACITY. § 187 capacity, the burden of proof lies heavily on him.) In cases where, subsequently to the marriage, a commission of lunacy has been taken out, and the jury has found, that the party was insane at the period of marriage solemnized, this finding is admissible in evidence as tending to establish its nullity ;? and we have seen, that in England the marriage would be eonclusively null, if the commission were taken out before. The doctrine, in respect to a-commission taken out after the solemnization, and the jury covering in their finding the for- mer period, as deducible from other causes than matrimonial, appears to be; that the verdict is sufficient primd facie evi- dence of insanity, but it may be rebutted In a matrimonial cause, Sir John Nicholl seemed inclining to give it certainly no greater weight than this, if so great; for he said: “The finding is a circumstance, and a part of the evidence, in sup- port of the unsoundness of mind at the time of the marriage, but no more; for this court must be satisfied by evidence of its own, that grounds of nullity existed.” And, in the case in which these observations occur, the plaintiff did not in fact rely upon this evidence alone. . § 187. The marriage of an insane person is void, not merely voidable ; wherefore it may be drawn in question at any time, between any parties. And it follows, that, when a 1 Turner v. Meyers, supra. ? Portsmouth v. Portsmouth, 1 Hag. Ec. 355, 3 Eng. Ec. 154. And see Ex parte Glen, 4 Des. 46.. : 5 Ante, § 180. * Sergeson v. Sealey, 2 Atk. 412; Yates v. Boen, 2 Stra. 1104; Faulder v. Silk, 3 Camp. 126-; Baxter v. Portsmouth, 5 B. &.C. 170; 2 Greenl. Ev. § 871. 5 Portsmouth v. Portsmouth, supra. / * Browning v. Reane, 2 Phillim. 69, 1 Eng. Ec. 190; Parker 'v. Parker, 2 Lee, 382, 6 Eng. Ec. 165; Ex parte Turing, 1 Ves. & B. 140, where a marriage within stat. 12 Geo. 3, c. 11, was held to be void ; Foster v. Means, 1 Speers Eq. 569; Johnson v. Kincade, 2 Ired. Eq. 470 ; Jenkins v. Jenkins, 2 Dana, 102; Middleborough v. Rochester, 12 Mass. 363; Wightman v. _ Wightman, 4 Johns. Ch. 343; Jaques v. The Public Administrator, 1 Brad. 499 ; Rawdon v. Rawdon, 28 Ala. 565; 1 Burge Col. & For. Laws, 138.. 16 [181 ] § 189 NULLITIES OF MARRIAGE. [Book III. competent tribunal is called upon to pronounce a decree of nullity on this ground, and a case is made out, the tribunal, though even it be a court of equity, can exercise no discre- tion, but is compelled to proceed to the decree! The mar- riage, indeed, is just as void in law without the decree as with it; while still prudential reasons, reasons other than strictly. legal, may strongly indicate the propriety of the party’s carry- ing the matter thus before the court. § 188. From the proposition that these marriages are utterly null and void, may seem to arise ground for holding the mutual recognition and cohabitation of the parties as hus- band and wife, after the return of reason, insufficient to cure the original defect, especially in those localities where mar- riage is good only when solemnized according to a particular form. And, in Crump v. Morgan, the Supreme Court of North Carolina appear, without absolutely deciding the point, to favor this view. They observe: “ A writer upon the law of marriage,” referring to Mr. Poynter, “lays it down, that when a marriage is void ipso facto, acquiescence, long cohab- itation, and issue, or the desire of the parties to adhere, can- not amend the original defect.2 In a case of alleged insanity at the time of the marriage, subsequent acquiescence, during long and frequent periods of undoubtedly restored reason, would be cogent proof of competent understanding at the time of the marriage ; but, assuming lunacy to have existed, the rule of the author quoted seems to be sustained by the consideration, that marriage is a peculiar contract, to be cele- brated with prescribed ceremonies, and, therefore, subsequent acts, not amounting in themselves to a marriage, will not make that good which was bad in the beginning.” * § 189.. Yet probably this reasoning of the North Carolina 1 Crump v. Morgan, 3 Ired. Eq. 91. 2 Rawdon v. Rawdon, 28 Ala. 565. 3 Poynter Mar. & Div. 157. * Crump v. Morgan, 3 Ired. Eq. 91. And see, as tending the same way, observations in Ward v. Dulaney, 23 Missis. 410, 482, 433. [182 ] < CHAP. IX.] WANT OF MENTAL CAPACITY. §189 court proceeds from a slight misapprehension of the principle which properly governs questions of this nature. In locali- ties where the law requires nothing more than consent to con- stitute a valid marriage, little doubt can exist, that, if the parties continue to cohabit after arriving at a lucid interval, this cohabitation will render their marriage good; and per- haps this is the state of the law in which the older authorities originated. For Shelford remarks, “there is authority for the proposition, that a marriage by a non compos, when of un- sound mind, is rendered valid by consummation during a lucid interval.”! But even where the local law requires the concurrence of two things; namely, first, a compliance with certain formalities ; secondly, the consent of the parties; it does not appear that the formalities and the consent must concur in point of time.2. And we have already seen, that, in cases of fraud and duress and the like, they need not;? but that, if there is a formal marriage to-day, to which, by reason of fraud or duress or error there is no consent, yet, if the consent is given to-morrow, the marriage is good. And the deed of an insane person has been termed voidable, not void; though some old cases look the other way. But the deed is not voidable in the sense of the ecclesiastical law of marriage; it simply requires no new sealing; it will bind the maker after he has, during a lucid interval, affirmed it, not before. For the same reason it would seem, that a lunatic, on regaining his reason, may affirm a marriage ‘celebrated while hé was insane, even though a statute had required a particular form of solemnization.’ The purpose of the statute, 1 Shelford Mar. & Div. 197. Refers to Ashe’s case, Pr. Ch. 703; Free- man, C. C. 259. And see ante, § 184, note. 2 And see ante, § 55. 5 Ante, § 122. * The case of children marrying under the age of consent may seem also in point; but such marriages are held to be incomplete, not so much from a want of mental, as of physical, capacity. There no new solemnization is requisite. Post, § 191, 196. 5 Allis v. Billings, 6 Met. 415. 6 Shelford on Lunatics, 255 et seq. 7 See also Wightman v. Wightman, 5 Johns. Ch. 343, 345. And see Durie v. Norris, 1 U. §. Mo. Law Mag. 49. [183] § 190 NULLITIES OF MARRIAGE. [Book mm. being to secure notoriety for the marriage, and preserve the evidence of it,! is thus fully accomplished, and the rights of the parties are at the same time protected. — § 190. The cases to which we may presume Poynter alludes, in the place referred to by the North Carolina court,? are of an entirely different nature from the case under consid- eration. They are those in which, though the parties gave consent to the marriage, some defect.of form entered into the original ceremony, when, of course, this defect ‘could not be cured by any amount of consent given then or afterward.® And perhaps,—a point not quite so plain,—if a man and woman should give consent to each other as to husband and wife, and should add to this consent a perfect compliance with all requisite forms, yet some impediment to the marriage should exist at the time, — such, for instance, as one of them having another matrimonial partner living,— this imperfect union could not -be perfected, on the mere withdrawal of the impediment, by the bare repetition of the consent, without also repetition of: the forms. There are in the books cases which proceed on the supposition that marriage could not be constituted thus, yet probably the point is not directly adjudged. 1 Ante, § 64. ? Ante, § 188, ® Ante, § 175. [184] CHAP. X.] WANT OF AGE. § 191 CHAPTER X. WANT OF AGE. §191. THE next topic for consideration is the age of the parties, as affecting the matrimonial consent.1 And we have here another illustration of the distinction between an agree- ment of marriage and an agreement to marry.2 An agree- ment to marry, entered into by an infant, being a person under the age of twenty-one years, either with another infant, or with a person of full age, is, like any other executory con- tract, voidable by the infant, yet binding on the other party ; wherefore an infant can maintain an action for the breach of a promise to marry, against one who at the time of making it had arrived at the age of twenty-one years, while the latter can maintain no action against the infant.2 But when the agreement to marry has been executed in a present marriage, its binding nature depends rather on the physical capacity, than on the mental. The general proposition is, that infants are capable of entering into valid marriages;* but persons, whether under or over the age of twenty-one, who have no physical capacity to perform matrimonial duties, either be- cause they want the physical maturity which age alone brings, or because, as we shall hereafter see,> some incurable defect in the sexual organism prevents, cannot contract a marriage completely valid; while, on the other hand, they can find no 1 Ante, § 43, 44. ? Ante, § 29, 100 and note, 101 and note. 5 Holt v. Ward, 2 Stra. 937; Hunt v. Peake, 5 Cow. 475; Willard v. Stone, 7 Cow. 22; Cannon v. Alsbury, 1 A. K. Marshall, 76 ; Pool v. Pratt, 1 D. Chip. 252. * Gavin v. Burton, 8 Ind. 69. 5 Post, c. 14. 16* [ 185 ] § 192 NULLITIES OF MARRIAGE. [Book III. refuge from the consequences of a bad bargain in the general law of minority. The case has been likened to the executory agreement of an infant to purchase necessaries, on the one hand; and the executed agreement, on the other hand; the former does not bind him; but, when executed by the delivery and acceptance of the necessaries, the latter then binds him.! We shall see? that the existence of a physical defect in per- sons of mature years is a fact to be proved in each particular case ; but the age of puberty, for matrimonial purposes, is at the common law fixed at fourteen in males and twelve in females.? This age is termed the age of consent; and Little- ton calls it also “ the age of discretion.” + § 192. The common law rule of fourteen in males and twelve in females as the age of consent, was derived from the civil law, substantially also from the canon The Scotch law has the same rule. It originated in the warm climate of Italy, and it has been thought not entirely suited to more northern latitudes. In some of the United States, it has been altered by statute, and the age of consent fixed at later periods of life. When a statute provided, “ that male persons of the age of eighteen years, and female persons of the age of four- teen years,.... may be joined in marriage,” this was held, in Iowa, not to alter the common law; but infants be- low those ages, and within the common law ages of consent, 1 Pool v. Pratt, 1 D. Chip. 252. 2 Post, c. 14. ® Pool w Pratt, supra; 1 Bright Hus. & Wife, 4; Arnold v. Earle, 2 Lee, 529, 6 Eng. Ec. 230; The Governor v. Rector, 10 Humph. 57; Parton v. Hervey, 1 Gray, 119; Rex v. Gordon, Russ. & Ry. 48. * Co. Lit. 79 a, and Mr. Hargrave’s note, No. 43. Ayliffe says: “ This is the age of persons, which the law has deemed capable of advice and un- derstanding, which ought to be principally regarded in the business of mat- rimony, because so many inconveniences may flow from an indiscreet mar- riage.” Ayl. Parer. 361. ° 1 Bl. Com. 436. ° 1 Fras. Dom. Rel. 42; Ferg. Consist. Law, 136, and App. 54; Rogers .Ec. Law, 2d ed. 632, note. [ 186 ] CHAP, X.] WANT OF AGE. §194 might still marry.1 This is probably the true construction, since the statute contains no negative words,” though the con- trary construction was rather assumed than decided in an Ohio case.® § 193. The canon law seems not to regard the ages of four- teen and twelve as conclusive, but to admit of the capacity or puberty of the party being proved by actual inspection.* ' In a Scotch case it was attempted, on the strength of consid- erable Scotch as well as canon law authority, to establish the same rule; but the court refused, chiefly because of the inex- pediency of permitting the indecent examinations necessary in its application5 The common law also seems not to have yielded to the inquisitive disposition of the canon law, but to have always contented itself with the simple inquiry into the ages of the parties. § 194. There is moreover another period to be considered ; that of seven years, alike in male and female. If either party to a marriage is below seven, it is a mere nullity.’ If both parties have arrived at seven, and either one of them is below the age of consent, or, if both are,’ they may still contract an inchoate or imperfect marriage. This marriage they cannot, avoid or annul, until the party discarding it has reached the age of consent for such party, whether it be twelve or four- teen ;° and perhaps not, until the other has also arrived at 1 Goodwin v. Thompson, 2 Greene, Iowa, 329. See also Parton v. Her- vey, 1 Gray, 119; Bennett v. Smith, 21 Barb. 439. 2 1 Bishop Crim. Law, § 91-92 a. 3 Shafher v. The State, 20 Ohio, 1. * Ayl. Parer. 247; 1 Fras. Dom. Rel. 43; 1 Bl. Com. 436; Bowyer Com. 45. 5 Johnston v. Ferrier, cited 1 Fras. Dom. Rel. 43. * 1 Bl. Com. 436 ; Macpherson on Infants, 168. See 1 Bishop Crim. Law, § 286. 7 2 Burn Ec. Law, 434; 1 BI. Com. 436, note 11, by Chitty, &c.; Swinb. Spousals, 20, 23. j -' 8 Ante, § 191. ® Co. Lit. 79. [187] § 195 NULLITIES OF MARRIAGE. [Book Im. his or her age of consent.1 Judge Reeve observes: “In Rolle’s Ab. 341, there is a case where a wife, being only eleven years of age, did then disagree to the marriage; and the husband, being then of the age of consent, married an- other woman, and by her had a child. Such child was ad- judged to be a bastard, because the former marriage continued valid; for the first wife, when she dissented to the marriage, had not arrived at the age when she could dissent. A mar- riage of such tender age has not been heard of in Connecticut, * I believe ; and I cannot suppose that such marriage would be considered valid.”*, In New York, a man having entered into a marriage with an infant under twelve years of age, who immediately declared her ignorance of the nature and consequences of the ceremony, and her dissent from the con- nection, —the Court of Chancery, on a bill filed by her next friend, ordered her to be’ placed under the protection of the court, as a ward, and prohibited the man from all inter- course or correspondence with her, under pain of incurring a contempt.3 § 195. Though one of the parties has passed the age of consent, if the other has not, either may avoid the marriage, when the latter has arrived at that age; as, if a boy of four- teen marry a gitl of ten, he, at her age of twelve, as well as she, may disaffirm the marriage. This, it is seen, is a differ- ent rule from what governs ordinary executory contracts of minors. The reason given for the difference is, that, in matri- mony, either both parties must be bound, or an equal election of disagreement must be open to both. And such, we may 1 Swinb. Spousals, 34. 2 Reeve Dom. Rel. 237. * Aymar v. Roff, 3 Johns. Ch. 49. In Ohio, a doctrine differing some- what from that stated in this section has been held, though without much . discussion. Shafher v. The State, 20 Ohio, 1. * Co. Lit. 79, and Mr. Hargrave’s note, No. 45; 1 Bl. Com. 436; 1 East, P. C. 468; Godol. Ab. 507; Gibs. Cod. 428. The canons of Richard, who succeeded Thomas Becket in the see of Canterbury (4. p. 1175, 18th canon), [ 188 ] CHAP. X.] WANT OF AGE. § 196 observe, is the general doctrine in marriage; for ordinarily, if a person disqualified to contract matrimony marries another ignorant of the impediment, neither of the parties is bound, and either may take advantage of the defect. But, on the other hand, probably it has never been held, that a man can maintain a suit to have his marriage declared void solely on the ground of his own fraud;! though his ‘own fraud would not prevent his maintaining the suit, if other elements of nullity controlled the case.? § 196. The disaffirmance, by the persons married under the age of consent, may be either with? or without‘ a judicial sen- tence; yet, when it is by judicial sentence, the question seems somewhat obscure, whether the court may or not proceed before the parties have reached the respective ages of four- teen and twelve6 But, in reason, when the parties are under those ages, they should be excluded from maintaining the suit ; because they can no more consent to it, than consent to the disaffrmance of the marriage without suit; whatever others, having the right to control their marriages, might do.6 When both have attained the age of consent, if then they affirm the marriage, it is ever afterward binding, and no new ceremony enjoin, in conformity with the decrees of Pope Nicholas, that “marriage is null without the consent of both parties. They who marry boys and girls do nothing, unless they consent after they come to years of discretion. There- fore we forbid the conjunction of those who have not both attained the legal and canonical age, unless there be urgent necessity for the good of peace.” Vide the same injunction repeated in the Constitutions of Edmund, Arch- bishop of Canterbury, 1236. Johnson’s Canons, vol. 2; Rogers Ec. Law, 2d ed. 632. See 2 Burn Ec. Law, 434; post, § 197. 1 Ante, § 122. 2 Post, § 206; Miles v. Chilton, 1 Rabarteoes, 684. ® Gibs. Cod. 446; 2 Burn Ec. Law, 500; Sir George Hay, in Harford v. Morris, 2 Hag. Con, 493, 4 Eng. Ec. 575, 577, * Co. Lit. 79 6;. Burn, supra, p. 485; 1 BI. Com. 436, 5 Compare Co. Lit. 79 with Gibs. Cod. 446, followed by Burn, as above cited. Aymar v. Roff, 3 Johns. Ch. 49; ante, § 195. ® But see on this subject Aymar v. Roff 8 Johns. Ch. 49; ante, § 194. [189 ] § 197 NULLITIES OF MARRIAGE. [Book mI. is required! A very obvious mode of affirming is by con- tinuing to cohabit, or by sexual intercourse; and the same has been said to follow from “endeavors only,” ® and from kissing, embracing, sending gifts, and so on. In this, it is seen, a different rule, resting on a different reason, prevails, from what governs in the transformation of espousals per verba de futuro into matrimony, where no familiarities, short of the carnal act, will suffice’ It has been said also, that, when the parties continue to cohabit as husband and wife after they pass the age of consent, this amounts to an affirm- ance of the marriage even though, by parol or in writing, they disagree, unless the disagreement is made before the ordinary® § 197. The husband dying admits the wife to her dower, if, at the time of his death, she has attained the age of nine years;® “of what age soever,’ adds Lord Coke, “ her hus- band be, although he be but four years old.”7 But the clause of this proposition quoted from Coke appears inconsistent with the doctrine before stated,’ on the authority of Burn and others, that the marriage is absolutely void unless both parties are at least seven years old; for surely dower cannot rest on a completely void marriage. Looking at this matter in the light of principle, if we receive at all the doctrine of the inability of boys and girls below seven years to enter jnto even an imperfect marriage, the result must follow, that, while one of the parties is below seven, the marriage is completely null, whatever be the age of the other. Because, as we have 1 Co. Lit. 79; 1 Bl. Com. ut supra. 2 2 Dane Ab. 301; Coleman’s case, 6 N. Y. City Hall Recorder, 3. 5 Ayl. Parer. 250. * Swinb. Spousals, 27, 28, 40, 228. And see ante, § 90, where the reason of this distinction will appear. 5 Com. Dig. Baron & Feme, B. 5; Hubback on Succession, 272. 5 Co. Lit. 78; Swinb. Spousals, 28. 7 Co. Lit. 33 a. 5 Ante, § 194. [190] - CHAP. X.] WANT OF AGE. § 199 seen,! in the executed contract of mayriage, either both must be bound or neither; for, if the boy be not a husband, the girl, lacking a husband, cannot be a wife;* and, if the mar- riage is null as to the child four years old, it must be so as to the more mature party of nine years. Yet when the husband has attained the age of seven, nine is in law a woman’s age “to deserve dower.”® If she is married at seven, and the husband, having land, aliens it; and, after the alienation, she attains the age of nine years, and then the husband dies; she is dowable of this land; for, though at the time of the mar- riage she was not dowable absolutely, yet she was condi- tionally, that is, if she should reach the age of nine before the death of her husband.* § 198. The legitimacy of the children of these inchoate marriages depends perhaps on another principle. Though a child is born in wedlock, he is illegitimate when the husband can be shown not to be the father;5 “as, if the husband be but eight years old, or under the age of procreation.”® And probably, whenever his age is under fourteen, he is to be pre- sumed, primd facie at least, or even conclusively, incapable of becoming a parent.” § 199. This impediment of want of age is usually treated as rendering the marriage void, in distinction from voidable® We have seen it is truly void, when either of the parties is below seven years. But when both are above seven, it is in 1 Ante, § 195. 2 Ante, § 29, 129. 2 Co. Lit. 78 b. * Co. Lit. 33 a. 5 Lomax v. Holmden, 2 Stra. 940; Foxcrofi’s case, 1 Rol. Ab. 359; St... George v. St. Margaret, 1 Salk. 123; Platt v. Powles, 2M. & S. 65, 68; ° Rex v. Luffe, 8 East, 193, 200. 8 Co. Lit. 244 a. 7 1 Woodd. Lect. 234 and note. 5 Elliott v. Gurr, 2 Phillim. 16, 1 Eng. Ec. 166, 168; ante, § 46, 55. ® Ante, § 194. [191 ] § 199 NULLITIES OF MARRIAGE. [Book II. fact voidable only;1 and it. appears not to differ materially from the marriages known in the ecclesiastical law as void- able, on account of canonical impediments; except that the latter can only be avoided by judicial sentence, while the former may, by the parties themselves, without sentence. And, Ayliffe says, that a marriage, while the parties are under the age of fourteen in the man and twelve in the woman, is “not void, but only voidable;”? and so, it would seem, this marriage should’ properly be described; though no objection lies to the language of Lord Coke, who calls it an “inchoate and imperfect marriage.” 4 1 Contra, Shafher v. The State, 20 Ohio, 1. 2 Ante, § 55. 5 Ayl. Parer. 361. * Co, Lit. 33 a. [192 ] 5 CHAP. XI.] INCAPACITY FROM SOCIAL CAUSES. § 202 CHAPTER XI. INCAPACITY FROM SOCIAL CAUSES. Sxct. 200. Introduction. 201-209. A Prior Marriage undissolved. 210-212. Impediments following Divorce. § 200. To render a marriage valid, the parties to it must be under no social ‘incapacity to contract matrimony. And, according to the order already indicated, we shall now see what social incapacities the law has made. They, however, result principally from the parties, or one of them, either being already encumbered with a subsisting marriage; or being under some statutory prohibition, after the dissolution of a prior marriage. Let us look at these impediments,—I. A Prior Marriage undissolved; II. Impediments following Divorce. I. A Prior Marriage undissolved. § 201. The voice of all Christian people since the estab- lishment of Christianity, in nations where the Christian religion has not been corrupted with other forms, has been clear and unvarying against polygamy. Universally, there- fore, in Christian countries, no man or woman can have two matrimonial.partners at the same time. Consequently a second marriage, while the first subsists, is a mere nullity? § 202. The subject of marriage celebrated while the party has a former husband or wife living, may be viewed in two. 1 Ante, § 44. 2 1 Bl. Com. 436; 1 Fras. Dom. Rel. 79; Ruth. Inst. b. 1, c. xv. 17 [193] § 203 | NULLITIES OF MARRIAGE. [Book II. aspects, — either as a matter of criminal jurisprudence, or as one affecting the validity of the marriage so celebrated. As a matter of criminal jurisprudence, it does not come within our province, further than a discussion of it may shed light on the question of the validity of the second marriage. The offence of having two husbands or wives at the same time, the one de jure and the other de facto, is commonly termed bigamy; though the broader term polygamy seems to be equally applicable, and it has been considered to be, and cer- tainly is, the more appropriate.! According to the canonists, a bigamist was one who married a second time, whether the former consort were living or not, or married a widow; and there were seven distinct connections by which the offence might be committed, so as to create an incapacity for orders.” But polygamy, as understood in our criminal law, is a different thing; it is the act of formally entering into the marriage re- lation with a third person, by one sustaining at the same time the relation with a second person? § 203. In England, polygamy was always punishable ca- nonically, while it seems not to have been a civil offence until the reign of James I In the first year of his reign, Stat. Jac. 1, c. 2,5 made it felony committed “within his majesty’s dominions of England and Wales ;” but an exceptive clause of the statute exempted from its operation persons whose hus- band or wife should have remained seven years beyond sea, or the same period within his majesty’s dominions not known by the other to be living, persons divorced, persons whose 1 Shelford Mar. & Div. 224; 1 East P. C. 464; 20 Howell St. Tr. 358, note * Poynter Mar. & Div. 142; 4 Bl. Com..168, note. 3 See 2 Bishop Crim. Law, § 891 et seq. * Poynter Mar. & Div. 144. East says, that until this time it was left of “doubtful temporal cognizance;” but so early as Stat. 4 Edw. 1, ¢. 5, de bigamis, it was treated as a capital offence, and ousted of clergy by that statute. 1 East P. C. 464. 5 a. p. 1603, Gibs. Cod. 421. 6 Rex v. Lolley, Russ. & Ry. 287. [194] OHAP. XI.] INCAPACITY FROM SOCIAL CAUSES. § 204 marriages should have been judicially declared void, and per- sons married within the age of consent. This statute has been the model for all criminal legislation upon the subject, both English and American. In England, subsequent legisla- tion has corrected some of its defects; particularly is a mere divorce from bed and board no longer a protection against the penal consequences of a second marriage, while a seven years’ residence beyond sea is no protection where the absent party is known to the other to be living.) In most, perhaps all, of the United States, there are statutes, varying more or less from each other and from the English statutes, but substan- tially in accordance with the present amended English enact- ments. § 204. Construing one of these exceptional clauses,? the Supreme Judicial Court of Massachusetts held, that, where a woman in good faith contracted a marriage on an absence of her husband unheard of for a period of time less than seven years, seven years being the period mentioned in the clause of the statute, she committed thereby the criminal offence of polygamy; though, on what appeared to be sufficient reason, she verily believed her husband to be dead. But the court. continued the case to a future day for sentence, that she might obtain meanwhile a pardon from the governor; which she did, 1 Shelford Mar. & Div. 226; Rogers Ec. Law, 2d ed. 634. Stat. 9 Geo. 4, c. 31, repealing the former act, contains the following exceptions: “ Pro- vided always, that nothing herein contained shall extend to any second marriage contracted out of England by any other than a subject of his maj- esty ; or to any person marrying a second time, whose husband or wife shall have been absent from such person for the space of seven years then last past, and shall not have been known to such person to have been living within that time; or shall extend to any person who, at the time of such second marriage, shall have been divorced from the bond of his first. mar- riage; or to any person whose former marriage shall have been declared void by a court of competent jurisdiction.” As to what kind of inenag the second must be, see Rex v. Penson, 5 Car. & P. 412. * See 1 Bishop Crim. Law, § 139; Reg. v. Jones, Car. & M. 614; Reg. v. Cullen, 9 Car. & P. 681. [195] § 205 NULLITIES OF MARRIAGE. [BOOK IIL. and pleaded it in bar of the sentence.! In Scotland, on a like statute, the contrary has been decided ;? and the Scotch doc- trine seems better founded in. principle than the Massachu- setts. Because, in the criminal law, where one without fault or carelessness is misled concerning facts, and in good faith acts as he would be justifiable in doing if what he believes were true, he is not indictable.2 Unquestionably, in the case now under consideration, the woman should be deemed crim- inally careless and therefore indictable, if she proceeded on only such evidence of death as arises from lapse of time, while less than the statutory seven years’ period had elapsed ; because this period was plainly fixed by statute as the meas- ure of time from which she might be allowed to presume death; but independent and direct information of death seems to be a circumstance quite outside the statute. In Pennsyl- vania, the act of March 13, 1815, having provided, that, if a husband or wife, upon any false rumor in appearance well founded of the death of the other, when such other has been absent two: years, shall marry again, he or she shall not be lia- ble to the pains of adultery, —it was ruled, that, to justify such second marriage by the wife, there must be a general re- port of the husband having died at some particular place, and by some particular means, as. by shipwreck, which the report specifies. § 205. We should understand, that these several exceptions in the statutes against polygamy do not make the marriage valid ; they only relieve from the penal consequences, while ithe marriage itself is void. But'to render a second marriage 1 Commonwealth v. Mash, 7 Met. 472. ? McDonald’s case, 1 Broun, 238; 1 Alison Crim. Law, 535, 586, 541. 3 1 Bishop Crim. Law, § 242. * Commonwealth v. Smith, Oyer and Terminer, Philadelphia, May, 1816 ,~ before Rush, President (pamphlet, p. 229), 1 Wheat. Dig. 826. 6 Kenley v. Kenley, 2 Yeates, 207; Poynter Mar. & Div. 146; William- son v. Parisien, 1 Johns. Ch. 389; Fenton v. Reed, 4 Johns. 52; Miles v. Chilton, 1 Robertson, 684; Rogers Ec. Law, 2d ed. 684; Bird v. Bird, 1 [196 J CHAP. XI.] INCAPACITY FROM SOCIAL CAUSES. § 206 void, the first must be valid;! and, when the first is null,—not merely voidable, — a judicial sentence of nullity is not neces- sary to authorize the party capable of marrying to enter into a second valid marriage? “ A void marriage,” remarks Wayne, J.,3 “imposes no legal restraint upon the party imposed upon* from contracting another; though prudence and delicacy do, until the fact is so generally known as not to be a matter of doubt, or until it has been impeached in a judicial proceeding, whenever that may be done.” ‘To enable the innocent party, in a polygamous marriage, to contract a second marriage, the guilty party need also not be convicted of polygamy. And the burden of proving the first miarriage, where the second is attempted to be impeached on the ground of the first, lies on the impeaching party.5 , § 206. The reader perceives, that the impediment now under consideration renders the marriage void, in distinction from voidable.6 There are, in the law, many circumstances in which a party to a wrong is estopped to allege the wrong in a court of justice. And on this ground, no man can come as plaintiff into a court, asking to have his marriage set aside because contracted through his own fraud; even though the Lee, 621; Searle v. Price, 2 Hag. Con. 187, 4 Eng. Ec.'524; Bayard v. Morphew, 2 Phillim. 321; Duins v. Donovan, 3 Hag. Ec. 301, 309; Sellars v. Davis, 4 Yerg. 503; Jones v. The State, 5 Blackf. 141; Young v. Naylor, 1 Hill Eq. 383; Smith v. Smith, 1 Texas, 621; Zule v. Zule, Saxton, 96; Ganer v. Lanesborough, Peake, 17; The State v. Moore, 2 West. Law Jour. 134; Martin v. Martin, 22 Ala. 86; Heffner v. Heffner, 11 Harris, Pa. 104. 1 Bruce v. Burke, 2 Add. Ec. 471, 2 Eng. Ee. 381; Reg. v. Chadwick, 12 Jur. 174, 11 Q. B.178; Poynter Mar. & Div. 141; Bowyer Com. 45. 2 Patterson v. Gaines, 6 How. U.S. 550; Gaines v. Relf, 12 How. U. S. 472. ® Patterson v. Gaines, 6 How. U. 8. 550, 592. * If the party is not deceived, the result is the same. Martin v. Martin, 22 Ala. 86. 5 Patterson v. Gaines, supra. ® Heffner v. Heffner, 11 Harris, Pa. 104; and cases cited to the last section. : 17* [197] § 207 . NULLITIES OF MARRIAGE. [Book II. marriage is really void in law, to all intents and purposes. But if one, knowing himself to be incapable of contracting matrimony on account of having already entered into a mar- riage which is undissolved, entraps into.a marriage with him another, ignorant of the impediment, he, as well as this other, may proceed as plaintiff to have this marriage declared void by reason of the impediment.2 Various grounds of principle may be stated for this proposition; but the more satisfactory one is, that the impediment was a thing entirely distinct from the fraud, not depending in any measure upon it. § 207. The collateral consequences, to third persons, and to the parties themselves, of holding a marriage to be void, have already been mentioned; and they will be considered further, in a subsequent portion of this volume. The com- mon law allows no mitigation of those disastrous conse- quences, in favor of persons however innocently contracting a second marriage during the continuance of the first, or in favor of a party deceived by the artifice of the other into the marriage, or in favor of their innocent children, But there is a tendency, in the legislation of this country, toward the adoption of the more merciful rules of the modern civil law, as it has been in some countries modified by the canon law. Thus in Missouri, though a marriage in the lifetime of a former husband or wife is void, still a statute makes the children legitimate; providing, that the issue of all marriages deemed null in law, or dissolved by divorce, shall nevertheless be legitimate And there is at present a like statute in Texas ;5 also in California® 1 Ante, § 122, 195. .° Miles v. Chilton, 1 Robertson, 684; Norton v. Seton, 3 Phillim. 147, 1 Eng. Ec. 384. And see Ponder v. Graham, 4 Fla. 23; Martin v. Martin, 22 Ala. 86. ; 5 Ante, § 46. And see post, § 647-653. * Lincecum tv. Lincecum, 3 Misso. 441. , 5 Hatwell v. Jackson, 7 Texas, 576. ‘6 Graham v. Bennet, 2 Cal. 503. [198 J CHAP. XI.] INCAPACITY FROM SOCIAL CAUSES. § 208 § 208. In Louisiana, the jurisprudence of which State rests substantially on the civil law of Spain, the courts hold, that, where a woman is married to a man having a former wife with whom his marriage is still subsisting, if she were deceived by him into this marriage, being ignorant of any impediment, she is entitled, while the deception lasts, to all the rights of a wife; and the children, born during this period, are legitimate! So, in Texas, before the introduction of the common law into the State, it being subject to the law of Mexico, if a woman married a man having a wife already, she being ignorant of the impediment, the law cast on her all the obligations, and invested her with all the rights, of a law- ful wife, while this ignorance of the impediment lasted. The law of Spain was thesame. The matter was much discussed in a Texas case; and the court further held, that, by the Spanish law, formerly existing in Texas, if there was an impediment, like a prior marriage, and the second marriage was entered into in ignorance of the impediment; still it. might indeed be dissolved for the cause of the impediment, but, even after such dissolution, it, as to whatever had gone before, “ produces,” in the language of the court, “the civil effect of true matrimony, as well with respect to the spouses as with respect to the offspring. The interests of the consorts at separation will be regulated according to the disposition which would have been made of them in case of dissolution by death or divorce. This good faith produces its results as long as it continues; and, when it ceases, its effects also cease.” So also, by the same system of jurisprudence, con- trary perhaps? to the rule of the common law, a putative ’ marriage is converted into a real marriage, by the removal of the disability; as, if there be a former husband or wife of one of the parties living, the marriage becomes good on the death of such person? 1 Clendenning v. Clendenning, 15 Mart. La. 438. And see Hubbell v. Inkstein, 7 La. Ann. 252. 2 See ante, § 188-190. 3 Smith v. Smith, 1 Texas, 621. See also Patton v. Philadelphia, 1 La. Ann. 98. [199 ] § 211 NULLITIES OF MARRIAGE. [BOOK IIE. § 209. Mr. Burge, in language somewhat less precise, states the rule under consideration thus: that such a marriage, “although null and void, will have the effect of entitling the wife, if she be in good faith, to enforce the rights of property which would have been competent to her if the marriage had been valid, and of rendering the children legitimate.” He informs us, that this species of marriage was not recognized by the civil law, having sprung from the canon; was unknown in the laws of England, Ireland, and Holland, yet was ad- mitted into France, Spain, and Germany; and was adopted by the code civil. It has struggled for a doubtful existence in Scotland. Il. Impediments following Divorce. § 210. The operation of a decree of divorce from the bond of matrimony, when unincumbered by any statutory limita- tions or restrictions, is to free the parties respectively from all the obligations imposed by the marriage dissolved; and to leave them consequently at liberty to contract other mar- tiages, the same as though the first had never subsisted. But in some States and countries, the laws put restrictions and prohibitions, more or less broad, on one or both of the parties to the divorce. Thus the Kentucky statute provides, that the decree of divorce shall not “authorize the injured party again to contract matrimony within two years from the time of pronouncing such final decree.” And the courts hold, that, if the injured party contracts a second marriage within the two years, it is a nullity, void for every purpose.” § 211. And in many of the States of this country, the guilty party, after a divorce, is excluded by statute from en- tering into a second marriage, during the lifetime of the inno- cent party. This is a peculiarity of American law; and it is ? 1 Burge Col. & For. Laws, 152. * Cox v. Combs, 8 B. Monr. 231. See post, § 212. ® See also post, § 222. [ 200 J CHAP. XI.] INCAPACITY FROM SOCIAL CAUSES. § 212 known in only a portion of the States. Whether the provis- ion is a wise one is a question on which opinions are divided. Plainly a person who has conducted badly in one matrimo- nial alliance cannot himself present a claim to be protected in another ; but, in this matter of divorce law, we are to consider more the interests of the public at large than of particular in- dividuals. And, if a punishment is to be imposed for any crime, especially therefore for a matrimonial offence, it should: be of a nature calculated to benefit, not to prejudice, the pub- lic. When therefore .a man is shown to have been unfaithful to his marriage obligations in a particular case, if he is to be punished for such unfaithfulness beyond merely having his connection with the woman he has wronged dissolved, rea- son would seem to direct, that he be shut up,—not left at large under such disabilities of law as should goad, every mo- ment, his evil nature to wrong as many more women as he can seduce by his arts and blandishments. If marriage is ever a protector of the public virtue, it must be peculiarly so when a bad man is held by the cords of a domestic affection from preying upon the female part of the community abroad. Some indeed apprehend, that liberty of marriage to the guilty party, after a divorce, will induce persons weary of their matrimonial connections to commit offences for the sake of being divorced. But experience shows, that such is not often done; and surely, if an innocent individual is bound by the form of marriage to a wretch of this kind, mercy to such innocent one demands, that the bond be unloosed, not worn to corrode forever. § 212. We have had occasion before to allude to this pro- hibition,! and we shall discuss it more at large when we come, in a subsequent part of this volume, to consider the effects of divorce. We shall see, that, being of a penal nature, it does not, on the one hand, take away the right of the party to marry out of the jurisdiction which imposes it; neither, on the other 1 Ante, § 126, 129. [ 201 ] § 212 NULLITIES OF MARRIAGE. [Book In. hand, does it apply to foreign divorces.1. Whether the mere prohibition, without words of nullity,? should be construed to make the marriage entered into contrary to the prohibition void, is perhaps a question of doubt. Usually the courts appear to have regarded it as having this effect; but, in a late Georgia case, the court intimate pretty distinctly that the marriage is only voidable at the most, perhaps perfectly good? And this intimation is surely worthy to be seriously considered in cases hereafter to arise. 1 Post, § 655-659. * Ante, § 167 et seq. 3 Park v. Barron, 20 Ga. 702. [202 J CHAP. XII.] AFFINITY AND CONSANGUINITY. § 215 CHAPTER XII. AFFINITY AND CONSANGUINITY. § 213. Tue present chapter and the chapter next following will be occupied with the consideration of those special im- pediments which prevent parties from marrying each other, though they have the general legal capacity to marry! The impediment of consanguinity exists in the law of nature; and it is recognized everywhere. The impediment of affinity is one of mere civil institution, existing only in some countries, or but slightly in only some. § 214. Marriages between persons closely connected in blood tend to the propagation of a race enfeebled, and subject - to diseases both of body and mind. They have been every- where prohibited, usually on the ground that the toleration of them would impair the quiet and concord of families, jeopard- ize female chastity, and hinder the formation of favorable alliances. And while this reason appears utterly insufficient of itself, it shows how, in the world’s history, the promptings of the nature of man frequently bear him in the right direc- tion, where his unaided intellect is too feeble to carry him. In the present case, the blending of bad reason with a correct instinct has led to the establishment of the impediment of affinity, in the English law, much to the detriment of good morals. § 215. We have already seen, that, previous to Stat. 32 Hen. 8, c. 38, the impediments of consanguinity and affinity were so extended by the church as to be deemed burdensome ; and that this statute, enacted for the correction of the evil, 1 Ante, § 44. [ 208 J § 215 NULLITIES OF MARRIAGE. [BooK II. forbade the ecclesiastical courts to draw in question marriages “without the Levitical degrees,” not prohibited by “ God’s law.”! In the construction of this statute, the following points have been established : — First. That affinity is an impediment to the same extent as consanguinity. Thus, in the case of Butler v. Gastrill, the judge said: “It was necessary, in order to perfect the union of marriage, that the husband should take the wife’s rela- tions, in the same degree, to be the same as his own, with- out distinction, and vice versé; for, if they are to be the same person, as was intended by the law of God, they can have no difference in relations, and by consequence the pro- hibition touching affinity must be carried as far as the prohibition touching consanguinity ; for what was found convenient to extinguish jealousies amongst near relations, and to govern families and educate children amongst peo- ple of the same consanguinity, would likewise have the same operation amongst those of the same affinity. And when we consider who are prohibited to marry by the Leviti- cal law, we must not only consider the mere words of the law itself, but what, by a just and fair interpretation, may be adduced from it.”?. In the application of this rule, let us observe, the kindred of the husband are not in affinity to the kindred of the wife ;? as, for example, the husband’s brother may marry the wife’s sister;+ father and son may marry mother and daughter;5 and a man may marry the widow of his former wife’s brother.6- In matters other than matrimo- nial, it is held, that relationship by affinity ceases on the dis- solution, by death or otherwise, of the marriage which created 1 Ante, § 49. * Butler v. Gastrill, Gilb..Ch. 156, 158. * See on this point Paddock v. Wells, 2 Barb. Ch. 331. Kelly v. Neely, 7 Eng. 657, proceeded on a contrary doctrine. * Shelford Mar. & Div. 174; Wood’s Civjl Law, 119; Poynter Mar. & Div. 117. ° Oxenham v. Gayre, Bacon Ab. tit. Mar. & Div. (4.) ® Taylor Civil Law, 339. [204] CHAP. XII.] AFFINITY AND CONSANGUINITY. § 217 it,1 except only as to the children of the marriage ;? and, if the same rational view had been carried by the courts of England into the construction of this statute, less occasion would there have been to complain of the result. § 216. Secondly. In respect to the impediments of consan- guinity and affinity, illegitimate children are considered the same as legitimate; “for the disqualifications of bastardy are of civil institution only, and do not intrinsically weaken the natural ties of kindred.” 8 § 217. Thirdly. The statute is construed to prohibit mar- riages in the entire ascending and descending line; also mar- riages between collaterals as far as, and including, the third degree of the civil reckoning. In this mode of computing degrees, we go from the prepositus up to the common stock, thence down, counting one for each step.* Therefore under this statute it is incestuous for a man to marry his deceased wife’s sister,> or for a woman to marry her deceased husband’s brother,’ or for a man to marry his wife’s sister's daughter,’ 1 Blodget v. Brinsmaid, 9 Vt. 27; The State v. Shaw, 3 Ired. 532; Moses v. The State, 11 Humph. 232; Morgan v. The State, 11 Ala. 289. * Paddock v. Wells, 2 Barb. Ch. 331. See Ex parte Hunt, 5 Cow. 284. * Poynter Mar. & Div. 118 and note; Shelford Mar. & Div. 174; Reg. v. St. Giles, 11 Q. B. 173, 244; Horner v. Liddiard, 1 Hag. Con. 337,-352; Haines v. Jefcott, 5 Mod. 168, Comb. 356; Blackmore v. Brider, 2 Phillim. 359, 361; Gibs. Cod. 412; Woods v. Woods, 2 Curt. Ec. 516, 521, 7 Eng. Ec. 181, 182. But see The State v. Roswell, 6 Conn. 446. * Butler v. Gastrill, Gilb. Ch. 156, 158, 159. 5 Hill v. Good, Vaughan, 302; Ray v. Sherwood, 1 Curt. Ec. 173; Reg. v, Chadwick, 12 Jur. 174, 11 Q. B. 173. 6 Aughtie v. Aughtie, 1 Phillim. 201, 1 Eng. Ee. 72. \ 7 Man’s case, Cro. Eliz. 228, Sir F. Moore, 907; Wortly v. Watkinson, 2 Lev. 254, 3 Keb. 660; Withipole’s case, cited in Howard v. Bartlet, Hob. 181; Snowling v. Nursey, 2 Lutw. 1075; Denny v.. Ashwell, 1 Stra. 52; Clement v. Beard, 5 Mod. 448; Co. Lit. 235 ; Ellerton v. Gastrill, 1 Comyns. $18. 18 [ 205] § 219 NULLITIES OF MARRIAGE. [Book IIL. or his wife’s mothey’s sister,! or his own sister’s? or brother’s® daughter, or the daughter of his deceased wife by a former husband ;‘ these marriages all being within the second or third degree, either of consanguinity or affinity. But fora man to marry the widow of his great uncle,> she being in the fourth degree from him, has been held lawful; and the statute itself recognizes the right of cousins-german, also of the fourth degree, to intermarry. § 218. Fourthly. Moreover in the construction of this statute, no difference is made between the whole and the half blood. Thus it is held incestuous for a man to marry the daughter of his brother of the half blood. § 219. The exposition thus stated of the statute of Henry VIIL accords with contemporaneous opinions of the Church of England. And in 1563, Archbishop Parker published a table of prohibited degrees, usually known as Archbishop Parker’s Table of degrees, ever since the basis of all judicial opinion on the subject. It was confirmed by the 99th canon of 1603; and though, as we have already seen,’ these canons do not, proprio vigore, bind the laity, having received only the royal assent, not the assent of parliament,—still it was ju- dicially observed, that “these tables do show the sense of the Church of England, and so are a proper exposition of the law of God, and by consequence ought to have great weight with the judges when they expound the Levitical law; and they are plainly the decision of this reformed church touching the 1 Butler v. Gastrill, supra. * Watkinson v. Mergatron, T. Raym. 464; Woods v. Woods, 2 Curt. Ec. 516, 7 Eng. Ec. 181; Burgess v. Burgess, 1 Hag. Con. 384. 3 Murgatroyd v. Watkinson, T. Jones, 191. * Blackmore v. Brider, 2 Phillim. 359. 5 Harrison v. Burwell, 2 Vent. 9, Vaugh. 206. 6 Oxenham v. Gayre, Bac. Ab. tit. Mar. & Div. (4.) See also as to the prohibited degrees, Gibs. Cod. 412-414. 7 Ante, § 4. [ 206 ] AFFINITY AND CONSANGUINITY. § 220 CHAP. XII. ] crime of incest; and they do retrench the exorbitant and un- warrantable constructions of the Church of Rome, who made the law of God of none effect by their traditions; and yet they expound the law of God in its full latitude.” } § 220. But though the aforementioned expositions are in harmony with the former, perhaps also the present, opinions of the Church of England, there has been of late a growing dis- 1 Butler v. Gastrill, Gilb. Ch. 156. to this table, A man may not marry his A woman may not marry her 1. Grandmother. 1. Grandfather. 2. Grandfather’s wife. 2. Grandmother’s husband. 3. Wife’s grandmother. 3. Husband’s grandfather. 4. Father’s sister. 4. Father’s brother. 5. Mother's sister. 5. Mother’s brother. 6. Father’s brother’s wife. 6. Father’s sister’s husband. 7. Mother's brother’s wife. 7. Mother’s sister’s husband. 8. Wife’s father’s sister. 8. Husband’s father’s brother. 9. Wife’s mother’s sister. 9. Husband’s mother’s brother. 10. Mother. 10. Father. 11. Step-mother. 11. Step-father. 12. Wife’s mother. 12. Husband’s father. 13. Daughter. 13. Son. 14. Wife’s daughter. 14. Husband’s son. 15. Son’s wife. 15. Daughter’s husband, 16. Sister. 16. Brother. 17. Wife’s sister. 17. Husband’s brother. 18. Brother’s wife. 18. Sister’s husband. 19. Son’s daughter. 19. Son’s son. 20. Daughter’s daughter. 20. Daughter’s son. 21. Son’s son’s wife. 21. Son’s daughter’s husband. 22. Daughter’s son’s wife. 22. Daughter’s daughter’s husband. 23. Wife’s son’s daughter. 23. Husband’s son’s son. 24. Wife’s daughter’s daughter. 24, Husband’s daughter’s son. 25. Brother’s daughter. 25. Brother’s son. 26. Sister’s daughter. 26. Sister’s son. 27. Brother’s son’s wife. 27. Brother’s daughter’s husband. 28. Sister’s son’s wife. 28. Sister’s daughter’s husband. 29. Wife’s brother’s daughter. 29. Husband’s brother’s son. 30. Wife’s sister’s daughter. 30. Husband’s sister’s son. And see Gibs. Cod. 414. According [ 207 ] § 221 NULLITIES OF MARRIAGE. [BooK IIL. position, even in the English Church, to remove some of the impediments of affinity. Especially, under the light of mod- em days, has it appeared alike unjust and impolitic to forbid marriage with the sister of a deceased wife, — a prohibition scarcely known in the United States! A truly enlightened view will doubtless discard altogether affinity as an impedi- ment; while it will extend somewhat the degrees of consan- guinity, within which marriages will be forbidden. For instance, while these connections between cousins-german sometimes seem productive of good, they are frequently dis- astrous to the interests of the parties, and especially of their enfeebled offspring. § 221. We have seen, that, by the common law of Eng- land, marriages within the prohibited degrees are voidable, not void;? that an American statute, allowing marriage to persons “not prohibited by the laws of God,” was construed to render the marriage of a man with his sister’s daughter voidable, as at the common law; that in England, since 1835, these marriages are void by statute; and that they are void in most of the American States The suit for nullity, on the ground of consanguinity or affinity, may in the English prac- tice be promoted by either party to the marriage,‘ or by third persons having an interest in the question£ 1 Marriages of this kind have been, I presume still are, unlawful in Virginia. In Commonwealth v. Perryman, 2 Leigh, 717, — the statute having provided, that, “if the brother hath married, or shall marry, his brother’s wife,” the marriage should be dissolved, the parties fined, &c.— the court held the offence to be committed by marrying the brother’s widow. See also Hutchins v. Commonwealth, 2 Va. Cas. 331; Commonwealth »v. Leftwich, 5 Rand. 657; Kelly v. Scott, 5 Grat. 479. 2 Ante, § 52. 3 Ante, § 60, 61. * Shelford Mar. & Div. 179; Oughton, tit. 193, § 15. 5 Ante, § 51. [ 208 J CHAP. XIII.] FURTHER OBSTACLES IN PARTICULAR CASES. § 223 CHAPTER XIII. FURTHER IMPEDIMENTS TO PARTICULAR INTERMARRIAGES, § 222. Tux books give us but little matter for the present chapter. In Scotland, there is an impediment to parties marrying one another, not prevailing in the United States. It is, that the guilty party, divorced for adultery, may not marry the particeps criminis. This impediment is said to have had an early existence in the canon law, introduced into it from the Roman, though the canon law was afterward changed; but by some means the old rule became estab- lished in Scotland1 In England, while divorces dissolving valid marriages were granted only by act of parliament, there was a standing order of the House of Lords, that every divorce bill brought in should contain a clause of this sort. “ The exigency of the standing order,” observes Macqueen, “makes it of course imperative to introduce ‘such a clause into every bill of divorce for adultery; but, though required in the bill, the clause is not retained in the act,—the usual course being, that some noble lord in committee moves to have it struck out, a motion which passes without resistance ; or, should resistance be offered, it is overruled, — all the feel- ings of humanity, and all the dictates of policy, suggesting that the guilty parties ought not to be debarred from making amends to social order by entering into matrimony. To pre- vent marriage in such a case would be but to prolong the unseemly spectacle of adultery ; and to inflict bastardy on the innocent and helpless offspring.” 2 § 223. In several of the United States, statutes prohibit 11 Fras. Dom. Rel. 82. ° Macqueen Parl. Pract. 509. And see ante, § 210. 18* ; [ 209 J ¥* § 224 NULLITIES OF MARRIAGE. [Book II. the marriage of white persons with Indians, negroes, or mu- lattoes. Such a statute existed in Massachusetts until 1848, when it was repealed. § 224. Says Mr. Burge: “ There were certain impediments to marriage peculiar to the civil law, which are not adopted in the codes of other countries. These were impediments described as being ex causa potestatis. Thus, a tutor or cura- tor could not marry his ward, until his office had terminated, or unless his accounts had been passed. A person adminis- tering a government, or public office, in a province, and the members’ of his family, were not permitted to intermarry ‘with a person domiciled in his province, unless they had been betrothed to each other before he had accepted the office. Notwithstanding these prohibitions, the subsequent voluntary cohabitation of the parties, after the relation which caused the prohibition had ceased, rendered the marriage valid ab initio.” 2 ? See Medway v. Needham, 16 Mass. 157; The State v. Hooper, 5 Ired. 201; The State v. Brady, 9 Humph. 74;: Bailey v. Fiske, 34 Maine, 77; The State v. Melton, Busbee, 49; The State v. Fore, 1 Ired. 378. 2 1 Burge Col. & For. Laws, 138. [ 210 ] CHAP. XIV.] PHYSICAL IMPOTENCE. § 226 CHAPTER XIV. PHYSICAL IMPOTENCE. Sxcr. 225. Introduction. e 226-228. A General View of the Doctrine. 229-232 a. Impotence of Procreation but not of Copula. 233. Impotence of Copula but not of Procreation. 284-240. The several other Forms and Doctrines of Impotence. 241-260. Principles governing the Divorce Suit for Impotence. 261. Concluding Views. § 225. Tue remaining impediment to marriage is physical impotence. Marriage between two persons of one sex could have no validity; because none of the ends of matrimony would be accomplished thereby. And so the parties, though of the opposite sexes, should have their sexual organization and capabilities essentially complete. The limits and conse- quences of this doctrine are now to be considered. We shall divide what is to be said on this subject as follows: I A General View of the Doctrine; IJ. Impotence of Procrea- tion but not of Copula; Il]. Impotence of Copula but not of Procreation; 1V. The several other Forms and Doctrines of Impotence; V. Principles governing the Divorce Suit for Impotence; VI. Concluding Views. 5 I. A General View of the Doctrine. § 226. “ As the first cause and reason of matrimony,” says Ayliffe, “ ought to be the design of having an offspring; so the second ought to be the avoiding of fornication.”! And the law recognizes these.two as its “principal ends;” namely, 1 Ayl. Parer. 360. 211] § 227 NULLITIES OF MARRIAGE. [Book 11. “a lawful indulgence of the passions to prevent licentiousness, and the procreation of children, according to the evident de- sign of Divine Providence.” 1 When one knowingly marries a person past the age of childbearing, he cannot complain of the unfruitfulness.2 And when the person is within such age, and has power of copula, he cannot ordinarily show, as a matter of fact, that, at the time of the marriage, an incurable sterility existed. Medical writers indeed have said, without qualifica- » tion, that such fact cannot be established,?—a proposition probably true wherever there is no discoverable malformation. Therefore, in all the reported cases, the inquiry has chiefly been as to the ability to copulate. And when, from any cause irremediable, there is this inability, the object of marriage is frustrate. Quia matrimonium ordinatum fuit, says Oughton, non solum ad evitandum Fornicationem, sed etiam ad proles procreandas ; si Matrimonium (tale quale) fuerit, inter Virum et Mulierem, de facto, solemnizatum, qui omnino inhabiles sunt, non propter etatem, sed propter aliquod naturale impedimen- tum, ad proles suscitandas, utpote, propter impotentiam et frigi- ditatem, maleficentiam, et similia, que ipso Jure, reddant hujus- modi matrimonium nullum. Hac impedimenta naturalia ali- quando contingant, tam in Muliere, quam in Viro— et pars gravata agere potest in causa nullitatis matrimoniiA § 227. The contract of marriage therefore implies, that the parties are capable of consummating it6 And when an im- potent person, knowing his defect, induces a person not 1 Dr. Lushington, in Deane v. Aveling, 1 Robertson, 279, 298; Lord Stowell, in Briggs v. Morgan, 8 Phillim. 825, 1 Eng. Ec. 408, 409. And see the observations of Dr. Lushington in B. v. B. 28 Eng. L. & Eq. 95. See also post, § 243 a, note, for a statement of reasons on which this doctrine rests, wherein some others are added to those of the text. Whatever may be said of those others, surely those of the-text are the principal ones. * Brown v. Brown, 1 Hag. Ec. 523, 8 Eng. Ec. 229. * Guy Forensic Med. Harper’s Am. ed. 51. * Oughton, tit. 193, § 17. * Poynter Mar. & Div. 123; Shelford Mar. & Div. 201; Oughton, tit. 193, §17; Chitty Med. Jurisp. 378. [212] CHAP. XIV.} PHYSICAL IMPOTENCE. § 228 knowing it to marry him, he commits thereby a gross fraud and a grievous injury; and, even if himself ignorant of it, there is equally a violation of the contract, and equally an injury, though without intentional wrong. In the former case, the marriage would be clearly voidable on the sole ground of fraud, if the principles governing ordinary contracts were applied to it; in the latter case, it would seem to be equally voidable on the ground of mistake, and the violation of the implied warranty But owing to the peculiar nature of mar- riage, this infirmity, though sometimes treated as a pure fraud,® is, according to better opinions, to be regarded in a somewhat different aspect,t yet as presenting some of the elements of fraud ; and we shall have occasion to see, that in several respects - the rules relating to fraud in marriage are not applicable here. § 228. This matrimonial impediment is termed impotence, or impotency. A perfectly accurate and unexceptionable de- finition of it may not be readily given; in Mr. Shelford’s work it is said to “consist in the incapacity for copulation, or in the impossibility of accomplishing the act of procreation.” ® Fraser defines it as the “incapacity of either spouse for the ‘act of copulation, or, as some think, the want of power to procreate children.”® Probably a better definition is, that impotence is such an incurable incapacity as admits of neither 1 Briggs v. Morgan, 3 Phillim. 325, 1 Eng. Ec. 408, 410. 2 Ante, § 99,100,117. Rutherforth puts the matter thus: “This con- tract, like all others, is binding conditionally, so that a failure of perform- ance on one part releases the obligation of the other part. Impotency, therefore, on the part of the man, or incapacity on the part of the woman, will set the contract aside. The man and the woman have, in words, made over a right to their persons respectively, for the purposes of marriage; but making over the right is, in effect, making over nothing, where one is impo- tent or fhe other incapable.” Ruth. Inst. b. 1, c.15,§9. See also Rogers Ec. Law, 2d ed. 640. * Benton v. Benton, 1 Day, 111; Guilford v. Oxford, 9 Conn. 321, 327. * Burtis v. Burtis, 1 Hopk. Ch. 557; Perry v. Perry, 2 Paige, 501. 5 Shelford Mar. & Div. 202. 6 1 Fras. Dom. Rel. 53. [213] § 229 NULLITIES OF MARRIAGE. [Book III. copulation nor procreation. Let us look at some of these points more in detail. II. Jmpotence of Procreation but not of Copula. § 229. Mr. Fraser says, the question is yet undetermined in Scotland, whether the husband’s want of power seminandi constitutes impotence, while he has the potentia copulandi ; and, on the other hand, whether a woman with the latter power, but utterly barren, is to be held as impotent.1_ But the burden of the complaint, in most of the cases he refers to, is the inability to beget children. And he adds: “ The 98th constitution of Leo, the Philosopher, expresses at great length the utter abhorrence of the Emperor at the doctrine, that the potentia copulandi, without the power of procreating children, was sufficient. The most eminent commentators on the canon law are of the same opinion. Brower argues the point with great warmth, holding, as his leading principle, that marriage is not instituted for the satisfying of lust, or the exciting of passion, but for the begetting of children” In a late criminal case, as to whether emissio was necessary to constitute the- crime of rape, Lord Medwyn is reported to have said, that he held the potentia copulandi, without the potentia seminandi, to form a good defence to an action of nullity on the head of impotency.2 This must, however, be a misreport, as the opin- ion is based on that of Sanchez, which is entirely opposite; for that learned canonist holds it to be impotency if a woman was ita arcta ut mater esse non potest. A quotation is pro- fessed to be made in the report, from Sanchez; but there is no reference given, and the words quoted seem to be those em- 1 1 Fras. Dom. Rel. 53. 2 Brower, 2, 4, 10. * Lord Advocate v. Robertson, 12 Mar. 1836. Just. Rep. Fac. Coll. App. * Sanchez, 7,92. Nos. 7, 8,11, and 2, 21, 5, and 7, 96, 7. In these pas- sages, Sanchez repeats very strongly the doctrine laid down in the text. [214] CHAP. XIV.] PHYSICAL IMPOTENCE. § 231 ployed by Sanchez to designate the views of authors that he condemns.” 4 § 230. In the year 1845, came before Dr. Lushington, sit- ting in the Consistory Court of London, the case of Deane v. Aveling, which sheds no uncertain light concerning the views of this learned judge. It was a suit instituted by the husband against the wife, on the ground of her alleged impotence. The proof was, that the woman, as certified by the examiners, was capable of performing the act of generation, and of being camally known by man, but conception could not follow. This statement of the facts was held to fall entirely short of what was required. “Mere incapability of conception,” said the judge, “is not sufficient ground whereon to found a de- cree of nullity, and alone so clearly insufficient that it would be a waste of time to discuss an admitted point. The only question is, whether the lady is or is not capable of sexual in- tercourse ; or, if at present incapable, whether that incapacity can be semoed ee § 231, But the case being peculiar, the testimony of the. examiners was then taken, and the facts were found to be substantially as follows: the external sexual organs, and the development necessary to the creation of sexual desire and gratification, were perfect; but the vagina was contracted in depth, admitting of penetration to perhaps less than half the usual extent, and becoming impervious at that depth, where it formed a cul de sac with no communication to any of the in- ternal organs. ‘There was an entire absence of the uterus. The defect had improved slightly between the first and final ‘examinations ; but it was deemed incurable, and not capable of any material further improvement. The only impediment, therefore, as far as copula was concerned, was in the restricted depth to which penetration could extend; and, from the im- 1 1 Fras. Dom. Rel. 53-55. ? Deane v. Aveling, 1 Robertson, 279, [215] § 282 NULLITIES OF MARRIAGE. [Boox III. perfect intercourse permissible, actual emission could ensue. Upon these facts, solely because no complete copula could take place, the marriage was set aside. The learned judge remarked: “ Sexual intercourse, in the proper meaning of the term, is ordinary and complete intercourse ; it does not mean partial or imperfect intercourse ; yet I cannot go the length of saying, that every degree of imperfection would deprive it of its essential character. There must be degrees difficult to deal with; but, if so imperfect as scarcely to be natural, I should not hesitate to say, that, legally speaking, it is no in- tercourse at all. I can never think, that the true interests of society would be advanced by retaining within the marriage bonds, parties driven to such disgusting practices. Certainly it would not tend to the prevention of adulterous intercourse, one of the greatest evils to be avoided.” 4 § 232. The learned judge added: “If there be a reasonable probability, that the lady can be made capable of vera copula, of the natural sort of coitus, though without the power of conception, I cannot pronounce this marriage void. I will briefly state the reasons. In the case first supposed the hus- band must submit to the misfortune of a barren wife, as much when the cause is visible and capable of being ascer- tained, as when it rests in indiscoverable and unascertained causes. There is no justifiable motive for intercourse with other women in the one case more than in the other. But when the coitus itself is absolutely imperfect, and I must call it unnatural, there is not a natural indulgence of natural de- sire; and almost of necessity disgust is generated, and the probable consequences of other connections, with men of or- dinary self-control, become almost certain. Iam of opinion, that no man ought to be reduced to this state of quasi un- natural connection, and consequent temptation; and there- fore I should hold the marriage void. The condition of the 1 Deane v. Aveling, 1 Robertson, 279, 298, And see, for facts very simi- lar, B. v. B. 28 Eng. L. & Eq. 95. [216] CHAP. XIV.] PHYSICAL IMPOTENCE. § 233 lady is greatly to be pitied; but on no principle of justice can her calamity be thrown upon another.” ? § 232. Concerning the view of the matter thus taken by Dr. Lushington, we may observe, that there is, in the nature of things, a difference between mere barrenness, and such mal- formation as deprives the woman of the essential organs per- taining to her sex. And though proof of mere barrenness, as existing at the time of the marriage, would be difficult, there may be reason to doubt, whether, if it were absolute and in- curable, it would not come substantially within the reasons on which this branch of our law rests. At the same time, this part of the doctrine would be of so difficult and delicate a nature, that judges consulting practical ends more than mere theories, might well hesitate to enforce it; yet this hesitation should not prejudice a case of malformation rendering pro- creation impossible. III. Impotence of Copula but not of Procreation. § 233. If the doctrine suggested in the last section were adopted, it would give to this matter of impotence a less gross and sensual aspect than otherwise it must wear. But, be it adopted or not, what shall be done with another class of cases; where, for example, an extreme brevity of the vagina, admitting of penetration to even a less extent than in the instance adjudicated by Dr. Lushington, and occasioning pain: in the act of imperfect copula, is connected with a perfect uterus, and complete capacity for conception ;? or where the: man, before marriage, suffered an amputation, and so only slight penetration, much less what Dr. Lushington terms “ordinary and complete intercourse,” can take place, yet con- ception may follow? For it is well known, that women have become pregnant under such circumstances, and in others * Deane v. Aveling, 1 Robertson, 279, 299. * Beck Med. Jurisp. 10th ed. 107. 19 [217] § 234 NULLITIES OF MARRIAGE. [BOOK IIL. where even the hymen has not been ruptured! Perhaps Dr. Lushington would hold, that a divorce, after the birth of issue, could not be granted; since one of the ends of marriage had been attained? and the offspring should not be bastardized. And, on principle, why should not this be so, even though no issue had in fact been born, at the time of application made to the court? But if mere copula is to be deemed the end of marriage, so far as the questions discussed in this chapter are concerned, many cases may occur in which there is perfect power of conception or procreation, yet the marriage must be held void. IV. The several other Forms and Doctrines of Impotence. § 234. The cases of impotence are not numerous in fact; but, when they arise, they require careful consideration, and an accurate understanding of the law. The defect may be either in the man or the woman; being equally, in each, a subject of legal redress. Lord Stowell, in 1820, remarked, according to one report of his observations, that three suits only had been brought by the man within the last sixty years, and that these had been unsuccessful, as was also the suit then before him. Sir John Nicholl said, in the same year, sitting in the Court of Arches, that there had been but one suit by the husband within his recollection. But when these cases come, the courts are to administer the law in them the same as in any other. “Courts of law are not invested with 1 Dean Med. Jurisp. 6-8. 2 See 1 BL Com. with notes by Chitty and others, 440. ®* Briggs v. Morgan, 3 Phillim. 325, 1 Eng. Ec. 408. But on this point the report of the case in 2 Hag. Con. 324, 326, is somewhat different. Accord- ing to the latter report, the learned judge said: “ Cases of this kind, brought by the husband against the wife, are certainly not very frequent; it is said that there have not been more than two instances established by proof in sixty years, which it requires no very deep philosophy to account for.” And see Devanbagh v. Devanbagh, 5 Paige, 552, 557. 4‘ Norton v. Seton, 3 Phillim. 147, 1 Eng. Ec. 384, 386. [218] CHAP. xIv.] PHYSICAL IMPOTENCE. § 935 the power of selection; they must take the law as it is im- posed on them. Courts of the highest jurisdiction must often go into cases of the most odious nature, where the proceeding is only for the punishment of the offender; here the claim is for a remedy, and the court cannot refuse to entertain it, on any fastidious notions of its own.”? § 235. Impotence, to be a ground of divorce, must exist at the time of the marriage. A sentence for this cause declares the marriage void from the beginning, which it could not do if the matter occurred subsequently to the nuptials. ‘Though a party should become impotent after marriage, as the effect of incontinence before, still the marriage is good, the impedi- ment not existing when it was entered into So also the defect must bé incurable. And the burden of, proof, in the suit, is on the plaintiff to establish both that it existed at the time of the marriage, and that it is incurable5 When it is a natural defect, the legal presumption is, that it existed at the time of marriage solemnized; when it is accidental, the con- trary presumption seems to arise. ‘When there appears a probability of capacity, or when the impediment which had existed is removed, the court cannot declare a nullity.’ And x 1 Lord Stowell, in Briggs v. Morgan, supra; Harris v. Ball, cited 2 Hag. » Con. 327. Still the court, in consideration of the peculiar character of the proofs, will not be disposed to encourage these suits brought without neces- sity. Lord Stowell, in Guest v. Shipley, 2 Hag. Con. 321, 4 Eng. Ec. 548. And see 1 Greenl. Ev. § 253. 2 Ante, § 46, 53, 59, 226, 227. * Belcher v. Belcher, reported in a separate volume by Phillimore, June 6, 1835; Bascomb v. Bascomb, 5 Fost. N. H. 267. * Ferris v. Ferris, 8 Conn.166. And see Norton v. Norton, 2 Aikens, 188; Bascomb v. Bascomb, 5 Fost. N. H. 267. 5 Brown v. Brown, 1 Hag. Ec. 523, 3 Eng. Hc. 229; Newell v. Newell, 9 Paige, 25; Devanbagh v. Devanbagh, 5 Paige, 554; Welde v. Welde, 2 Lee, 580. ; 6 Godol. Ab. 494; Sanchez, lib. 7, disp. 103, n. 4; Shelford Mar. & Div. 204. 7 Welde v. Welde, 2 Lee, 580, 586; Devanbagh v. Devanbagh, 6 Paige, 175; 1 Fras. Dom. Rel. 55. [219] § 236 NULLITIES OF MARRIAGE. [Book 11. if the impediment is of a nature to be removed without serious danger, by a surgical operation which the party refuses to undergo, still it cannot lay the foundation fora divorce on the ground of impotence ; since such a rule would enable the faulty one to be impotent or capable, to hold the marriage void from the beginning or good, at his election. Whether, in those States in which desertion is a cause of divorce, the curable impediment, and the refusal to have it removed, will together lay the foundation for a divorce on the ground of desertion, will be hereafter considered.? § 236. The origin of the impotence is unimportant. Sup- ‘pose it not to be connate, but to have come, subsequently to the birth of the impotent party, from accident or otherwise, still, having existed at the time of the marriage, it has the same effect as if it had always existed? A qualification of 1 Devanbagh v. Devanbagh, 6 Paige, 175; 1 Fras. Dom. Rel. 55. 2 Post, § 507 et seq. ® Ayl. Parer. 228; Chancellor Walworth, in Devanbagh v. Devanbagh, 5 Paige, 554, 557; Essex v. Essex, 2 Howell St. Tr. 786, 795, 804, 849, 857. This latter case, usually cited as the Countess of Essex’s, or the Earl of Essex’s case, though of somewhat doubtful authority as to the point more directly involved in it (see post, § 237), is quite conclusive of the doctrine stated in the text. For the twelve commissioners who heard the case, among whom were the most able and learned doctors of the age, concurred in the © ‘opinion, that it was immaterial whether the defect were natural or super- induced “ by accidental means;” and even the Archbishop of Canterbury, rampant in his opposition to the conclusion of the majority of the commis- sioners on the principal point, still employed, in his “speech intended to be spoken,” the following language: “There are three sorts of eunuchs, or men unfit to marry; the one is of God’s making, the second is of man’s making, and the third is of their own making. The first are they that are past from their mother’s belly, who either are frigidi, or such as have not members fit for generation, or some apparent debility. The second are those who are castrated by men, or by some violence have that hindered in them, where- unto, by nature, they are fit in respect of procreation. The third hath no coherence with this nobleman.” p. 857. He also said, that the impediment in Bury’s case was having the testicles “ stricken off with an horse,” p. 849. No complaint was ever made with the law of Bury’s case ; but the marriage was deemed voidable (not void, as this learned person erroneously stated it), [ 220] CHAP. XIV.] PHYSICAL IMPOTENCE. § 237 this rule has been intimated, arguendo, in two English cases, to the extent, that, if a man marries an old woman, naturally capable, yet past the age of childbearing, with a supervening impediment to consummation, which has come as a disorder peculiar to advanced years, the court will not interfere for his relief. This qualification, if admitted, must be deemed a branch of the general doctrine, that a man shall not complain of what he knew, or had reason to suspect, at the time of ‘the marriage. The primary object of matrimony being the pro- creation of issue, “a man,” in the language of Sir John Nicholl, “of sixty, who marries a woman of fifty-two, should be contented to take her tanguam soror.” “ Subeunt morbi,” says Lord Stowell, “is the natural description of late periods of life; and disorders, when they do come at such periods, must be borne with.” ! § 237. If, as a matter of physiological truth, the possibili- ty of a man being totally and incurably impotent as to one woman, while capable as to others, should be admitted,? the on the ground of the church, as it afterward appeared, having been deceived concerning the fact of the impotence. As to Bury’s case, see also ante, § 54, In Waddilove’s Digest, p. 198, note, is a reference to Morris v. Morris, cor. Del. May 15, 1833, Printed Cases, vol. ix. p. 91, as “a lengthened and ex- traordinary case of a suit for nullity of marriage, by reason of the man’s impotence superinduced by malpractices in youth; in which, however, the charge was held not sufficiently proved, and the man dismissed, but con- demned in costs.” I have not been able to obtain the volume referred to, and can therefore give no further account of the case. 1 Briggs v. Morgan, 2 Hag. Con. 324, 331, 3 Phillim. 325, 1 Eng. Ee. 408; Brown v. Brown, 1 Hag. Ec. 523, 3 Eng. Ec. 229. There seems to have been some difficulty in understanding this latter case. That part of the reporter’s note which relates to the point under discussion is as follows: “* Semble, that an impediment, not natural, but supervening, is no ground of nullity.” In Waddilove’s Digest, p. 197, it is, “ Semble, that an impediment supervening after marriage is not a ground of nullity.” Evidently neither of these dissimilar statements approximates the idea really intended by the court. ? Guy Forensic Med. 60. Impotence “may be either absolute or relative In the first, there is a total incapacity; in the second, the incapacity exist 19° [ 221] § 237 NULLITIES OF MARRIAGE. [Book m1. question may again arise, as in 1613, whether “ impotency versus hanc,” as it was termed, is sufficient to annul the mar- riage. In that year, the Countess of Essex, on petition to James 1, obtained from him a commission,! addressed to twelve of the principal bishops and doctors of the ecclesias- tical law, to hear her complaint against her husband of his impotency. Her libel alleged, that there had been a-triennial cohabitation; that she was apta viro, and virgo intacta; that the earl was wholly impotent and unable to consummate the marriage, as to her; though, both before and since the nuptials, he had “power and ability of body to deal with other women, and to know them carnally.” The earl, in his answer, admitted the non-consummation; said he neither could nor would consummate the marriage; insinuated the difficulty to be with her; and set forth, following what the libel had alleged, his power with other women. The proofs established the marriage and triennial cohabitation; while also the midwives and noble matrons, who, on appointment of the court, examined the lady’s person, reported her to be a virgin uncorrupted, yet with abilities for copula and fruit- fulness. Here was sufficient, at least primd facie, to show entire impotence in the earl; but the peculiar allegation in the libel forbade this view, and the question was, whether a divorce could be granted, assuming the impotence to extend only as to her. The royal influence was exerted powerfully in favor of the divorce; but the commissioners were still divided in opinion. At last, five of them absented them- . only as between particular parties.” Dean Med. Jurisp. 4. In a late Eng- lish case, Dr. Lushington gave in his adherence to this doctrine of impotence versus hanc; at least, to its legal sufficiency, if proved. He considered, that it alone is shown whenever the sole evidence is of non-consummation, after the cohabitation of three years. Anonymous, 22 Eng. L. & Eq. 637; 8. c. nom. N. v. M., 2 Robertson, 625. 1 «The court of the king’s high commission, in causes ecclesiastical, was erected and united to the regal power by virtue of the statute 1 Eliz.c. 1, instead of a larger jurisdiction which had before been exercised under the ypope’s authority.” It was abolished by Stat. 16 Car.1,c.11. 3 Bl. Com. 67, 68, [ 222] CHAP. XIV.] PHYSICAL IMPOTENCE. § 239 selves, leaving the other seven, whose judgments favored the divorce, to enter the decree. As to the facts of this case, the countess is said to have obtained leave, under the pre- tence of modesty, to put on a veil when about to be in- spected, and to have then substituted a young woman of her own age and stature, dressed: in her clothes, to stand the search in her stead; whereby she deceived the matrons and the court. On the other hand, room may exist for doubt, whether the allegation of “impotence versus hance” was not a device to save the feelings and reputation of the earl; since, though he ventured on a second marriage, he had no issue. § 238. Writers on medical jurisprudence have made differ- ing classifications of impotence, in accordance with their differing tastes; but these classifications are of little practi- cal importance to the lawyer, none of them being drawn on true legal distinctions? What the lawyer wants is to see the lines separating those impediments which somewhat obstruct, but do not prevent, copula, from those which suffi- ciently hinder it to lay the foundation for divorce; separating also the curable and the incurable; and separating those defects which are discoverable on inspection, from those which can be ascertained sufficiently only on a triennial co- habitation. § 239. Neither can we know, in advance, what forms this 1 Essex v. Essex, 2 Howell St. Tr. 876; and ante, § 236, note. * Dr. Beck divides the “causes of impotence,” after the manner of Foderé, into “absolute, curable, and. accidental, or temporary ;” which is somewhat convenient for legal contemplation. 1 Beck Med. Jurisp. 10th ed. 88. Dr. Guy classifies impotence in the male as, 1. Physical; 2. Moral or Mental. Under the first head he has a. Age; 6. Malformation or defect of the penis; c. Defect or disease of the testicles; d.‘Constitutional disease or debility. Guy Forensic Med. 52. Impotence in the female he classifies as, 1. Narrowness of the vagina; 2. Adhesion of the labia; 3. Absence of the vagina; 4. Imperforate hymen; 5. Tumors occupying the vagina. Ib. 60. A similar classification is adopted by Dean. [223] § 240 NULLITIES OF MARRIAGE. [Book I. impediment of impotence may assume in the future.1_ Avyliffe, who wrote more than a century ago, says, that impotence in the man is an excess of frigidity; in the woman, too great a straitness in her genital parts;? yet we now know, that these are only examples of impotence, and that it has assumed numerous other forms. The reader will find, on this subject, much information in the treatises upon medical jurisprudence, particularly in the late enlarged edition of Dr. Beck’s work. Chancellor Walworth has well remarked, on the authority of this writer, that the instances of absolute and incurable im- potence are few; that the defect is generally palpable to the senses; and that, of cases formerly assigned to this class, many have given way before the modern improvements in surgery. And his conclusion is just, that courts should pro- ceed in these causes of impotence with the greatest vigilance? § 240. There was a case in Massachusetts-so novel, that, since it has not found its way into the reports, it may properly be stated here. A husband proceeded against his wife for divorce, alleging her impotence. There was no obstruction, outwardly appearing, to the consummation of the marriage; but there was an intense sensitiveness in all the sexual region, so intense that any pressure there, even external, produced a degree of pain and suffering she was unable to endure. She was evidently not aware of her condition until after the marriage; and then she gave what consent she could to the unsuccessful embraces of her husband, until, becoming con- vinced that the marriage could not be consummated without danger to her life, she left him. She made no resistance to his application for divorce, and acceded to whatever measures were necessary to bring the proofs before the court. The parties were respectable, and there was no doubt of the facts. The case was heard by Fletcher, J., who, after reading from 1 1 Beck Med. Jurisp. 10th ed. 100. 2 Ayl. Parer. 227. ° Devanbagh v. Devanbagh, 5 Paige, 554,557 See Pollard v. Wybourn, 1 Hag. Ec. 725, 3 Eng. Ee. 308. [ 224 ] CHAP. XIV.] PHYSICAL IMPOTENCE. § 241 his minutes the evidence to the other judges, gave, with their concurrence, sentence for divorce.1 V. Principles governing the Divorce Suit for Impotence. § 241. There are certain principles, mentioned already,? re- lating to this divorce suit for impotence, from which the doc- trine seems to be derivable, that, if a man marries, knowing himself to be impotent, he cannot himself carry on a suit to have the marriage declared void on this ground, though the party deceived can, and so could he if he were ignorant of his own infirmity; or if, being himself without physical im- pediment, he marries a woman whom he knows to be im- potent, he cannot be heard afterward to complain of this. These propositions were substantially affirmed by Sir John Nicholl, in a suit by the husband, who was forty-five years old at the time of his marriage, to have it declared void after a cohabitation of seven years, because of his own impotence, from a cause obvious upon inspection. The husband had been moved to this suit by his wife becoming pregnant. But the learned judge considered it incredible, that he should have lived forty-five years in ignorance of this bodily defect in himself; at all events, he must have discovered it long before the institution of his suit; and so the maxim Cur tamdiu tacuit ? would apply. On this aspect of the case, he rejected the libel.3 Dr. Lushington has since remarked of this case: “T do not mean to say, that Sir John Nicholl was not per- fectly justified in thinking his own reasons sufficient for re- fusing to entertain that suit; but, at the same time, I cannot honestly refrain from saying, that there were grounds, if not counterbalanced by others, which ought to have induced him to admit that libel.” 4 1 Supreme Judicial Court for Suffolk, March T., 1850. Iam indebted to the kindness of Judge Fletcher for a statement of the facts of this case. 2 Ante, § 227, 236. 2 Norton v. Seton, 3 Phillim. 147, 1 Eng. Ec. 884, Ante, § 236 ; post, § 246, In Miles v. Chilton, 1 Robertson, 684, 699. [ 225] § 242 NULLITIES OF MARRIAGE. [Book IIr. § 242. In the before-mentioned case, the counsel for the husband relied on the text of the canon law, and on a manu- script opinion of*the late Sir William Wynne. The latter opinion was to the effect, that “a woman may institute a suit of nullity of marriage against her husband, on the ac- count of impotence or incapacity in herself to perform the duties of marriage.” Concerning this opinion, the court re- marked: “'That was the case of a woman. The opinion of any person of higher authority cannot be produced than of that person ; but it cannot be considered as an authority ap- plying to the case. The court does not mean to lay it down, that, in no possible case, or under no circumstances, a woman may be allowed to bring such a suit. But,” continued the learned judge, referring to some canon law authorities which had been produced, “even if the canon law is direct on the point, — js it according to the law of England to receive such a suit? Itis a maxim, that no man shall take advantage of his own wrong; it is the principle of the canon law itself, the principle of reason and justice.”! The true distinction probably is, that a person cannot be heard to complain of a physical impediment in himself or the other party, of which he had knowledge at the time of the marriage; but, if he were ignorant of the existence of the defect, or of its incur- able nature, though in himself, he may take advantage of it by suit of nullity.2 The marriage was a mistake; the ends in- tended by it cannot be answered. Hither party may be heard for the correction of a mistake, though unaccompanied by fraud? And on no principle can it make a difference, whether the man or the woman is plaintiff, only as a certain regard is in all matters of divorce paid to female delicacy ;# and she, therefore, is not held to so great promptness in instituting her suit as the man. ? Norton v. Seton, 3 Phillim. 147, 1 Eng. Ec, 384. ? See Ayl. Parer. 230. * 1 Story Eq. Jurisp. § 142-144. * Post, § 243. [ 226 J CHAP. XIV.] PHYSICAL IMPOTENCE. § 243 § 243. The suit for impotence, like any other suit for nullity of marriage or divorce, may be affected by two ingredients of a very uncertain and undefined nature; namely, delay, and insincerity in the party proceeding.! Perhaps the matter of in- sincerity is the one to be directly considered, and delay is to be viewed merely as proof of insincerity. And any unnecessary delay will be adverted to by the court as bearing on this matter of insincerity.2, Where, in a case of malformation, the husband was promoter, and the defect was palpable, a delay of seven years was said to be almost a bar.2 Delay by the husband of even sixteen months has occasioned suspicion; * and it has been laid down that lapse of time, though it does not appear pre- cisely what time, may operate as an absolute bar to the suit not brought by the party injured But the wife is not held to the same promptness as the husband ; the modesty of the sex may account for forbearance by her;® and, where the woman commenced proceedings twelve years after the mar- ‘ riage, relying, however, on proof of non-consummation after a triennial cohabitation, no objection was made,on account of the delay.’’ These authorities show, that the same strict- ness, as to the time within which the injured party must dis- affirm the marriage, does not apply here as in cases of fraud and duress.® 1 Post, § 410 et seq. *? Briggs v. Morgan, 2 Hag. Con. 324, 330; 5. c. 3 Phillim. 325, 1 Eng. Ec. 408; Anonymous, Deane and Swabey, 295. > Guest v. Shipley, 2 Hag. Con. 321, 4 Eng. Ec. 548. And see Harris v.: Ball, in Norton v. Seton, 3 Phillim. 147, 155, and remarks of Sir John Nicholl in the latter case. 1 Eng. Ec. 384, 385, 386. * Briggs v. Morgan, 3 Phillim. 825, 330, 1 Eng. Ee. 408, 410. ® Ball v. Ball, cited in Norton v. Seton, 3 Phillin. 147, 159, 1 Eng. Ee. 384, 386. 6 Sir John Nicholl, in Norton v. Seton, 3 Phillim. 147, 159, 1 Eng. Ec. 384, 386. ” Pollard v. Wybourn, 1 Hag. Ec. 725, 3 Eng. Ec. 308; Rogers Ec. Law, 2d ed. 641. 5 Ante, § 104, 122, note. [ 227] § 243 a NULLITIES OF MARRIAGE. [Book II. § 243a. Indeed, in a late English case, the husband was permitted to carry on his suit instituted seventeen years after the marriage. In his libel, he explained the delay; the wife objected to its admission, but was overruled by the Consistory Court, the Arches Court, and the Judicial Committee, sever- ally ; all holding, that delay alone is not an absolute legal bar to the proceeding! Yet, when this case came on for final hearing, the divorce was refused, chiefly because the plaintiff . had so long slumbered over his rights. “Their lordships,” said Dr. Lushington, “are all of opinion, that long acquies- cence, with knowledge or the means of procuring knowledge, would operate as a bar to the prosecution of such a suit; and more especially if the circumstances showed, that the suit was brought, not on account of the evils resulting from such im- perfection, but for other and different reasons.” 2 1 B. v. M., 2 Robertson, 580. * B——n v. B——n, 28 Eng. L. & Eq. 95,101. There is great confusion in the books concerning the precise limitations of the doctrines mentioned in this section and the last; and, in truth, they appear not to be of a nature susceptible of exdct defining. Dr. Lushington, in a very late case, after mentioning the case spoken of in the text of this section as deciding, that the husband may be “barred by his delay or other conduct,” adds: “ But when the inquiry is pushed further, and it is asked, what is the delay and what is the conduct which shall bar the suit, I feel that all is involved in doubt and obscurity. If I consider the question of time, I do not find that any period has been fixed. If I look to other circumstances, I am still more in the dark; for I am not aware of any authority which has attempted to define them. I know nothing more painful than to have to exercise-a judi- cial discretion, without landmarks to guide the judgment. If I look to the principle by which the institution of these suits is governed, it affords me little light to discover my way in such a combination of facts as now pre- sents itself, What is the principle, the foundation, of the right to claim a decree pronouncing a marriage void, where one of the parties is incapable of consummation? It is partly stated in the case already referred to [the one mentioned in our text]; and to that judgment I am justified in referring, for it is the judgment of all the Judicial Committee who heard the case : first, because the great chief purpose of marriage cannot be fulfilled; sec- ondly, because, by such a marriage, the temptation to evil courses is not re- moved ; thirdly [but see ante, § 226 and note], because, in some cases, especially where the defect is on the husband’s side, continued cohabitation [ 228] CHAP. XIV.] PHYSICAL IMPOTENCE. § 244 § 244. The age of the parties is always important to be considered in these suits, though there seems to be no age which absolutely bars the proceedings. A sentence of nullity, and especially an order to inspect the person, which, as matter of proof, must generally precede the sentence, are granted less readily ag the parties advance in years; and particularly is the court more reluctant to interfere, when, at the time of the marriage, the woman was past the period of childbearing. While persons are young, this injury is greater; in more ad- vanced life, it is less, and the mode of inquiry is less conclu- sive, and more abhorrent to the feelings. On these grounds, the libellant, in the English ecclesiastical practice, must state in his libel the respective ages of the parties ;? but whether this would be strictly necessary in this country is not certain. would be destructive to the health and comfort of one of the parties. There ‘was one such case a few years since of a very distressing character. There are many other reasons which I need not recapitulate. .... There are in- herent difficulties in the subject-matter, which render the application of the principles laid down a very anxious task. Time is one. What combina- tion of circumstances constitutes insincerity, another. .... Except in case of extreme old age, it is obvious that the refusal to allow a remedy on ac- count of the remissness of the husband, though he personally may not be entitled to complain, leaves untouched one reason for entertaining the suit, the prevention of illicit intercourse. Then, with regard to what is called, in some preceding cases, and in B. v. B., the insincerity of the suit, I have great difficulty in saying what would constitute insincerity, and what sincer- ity. Suppose a man anxious for issue, that motive would not constitute in- sincerity. Suppose a man anxious to marry another woman, I could not hold that to be insincerity. Suppose a man to indulge in illicit connections, could that be proof that he was insensible to the incapacity of his wife for con- jugal intercourse ? I do not think that proposition. maintainable ; it might rather bear the other way. Could such criminal connection alone bar the suit? No such argument has ever been advanced, and there is no prece- dent for so holding. Insincerity is therefore something. different. I cannot attempt to define it; it must be a combination of circumstances which show, that the alleged grievance was not the motive which led to the commence- ment of the suit, but what would constitute such a case cannot be defined beforehand.” Anonymous, Deane & Swabey, 295, 298-300. 1 Post, § 250. ' * Briggs v. Morgan, 2 Hag. Con. 328, 330; s.-c. 8 Phillim. 325, 1 Eng. Ec. 408. 20 [ 229] § 246 NULLITIES OF MARRIAGE. [BOOK III. § 245. The proofs of impotence are attended with some peculiarities. According to the facts of some cases, the defect is obvious ; while, in other cases, either it or its incurable na- ture is ascertainable only by trial and time. Where therefore the allegation was, that the male member was soft and short, the court said this did not always continue! The books of Medical Jurisprudence furnish ample other illustrations. In these latter cases, the English rule, derived from the canon law, requires the parties to cohabit three years; and, if the mar- riage is not consummated within that time, impotence is pre- sumed,?—a rule, however, which has recently been somewhat relaxed as to time.2 But where the defect is obvious on in- spection, this three years’ cohabitation is unnecessary.4 And the libel must show on its face, either that there has been a triennial cohabitation, or that the defect is obvious upon inspection, — in which latter case also, some particular visible defect must be alleged, or the libel will not be admitted to proof® § 246. Moreover it is said in Swinburne on Spousals: “ Albeit he that hath accomplished the age of fourteen years at the time of the marriage be not then able to pay the debt ‘which he oweth to his wife, yet, by the received opinion 1 Grimbaldeston v. Anderson, cited in Norton v. Seton, 1 Phillim. 147, 154, 1 Eng. Ec. 384, 385. ? Grimbaldeston v. Anderson, supra; Pollard v. Wybourn, 1 Hag. Ec. 725, 3 Eng. Ec. 308 ; Sparrow v. Harrison, 3 Curt. Ec. 16, 27, 7 Eng. Ec. 359; Welde v. Welde, 2 Lee, 578. In Pollard v. Wybourn Dr. Lushing- ton remarked: “ Here are the very strongest grounds to presume the impo- tency of the man. Ifthe parties lay together in one bed for so many years, of such ages, and the woman is certified to. remain virgo intacta; there cannot be a stronger presumption, that impotency existed, and that it was incurable.” 3 Post, § 248 et seq. * Briggs v. Morgan, 3 Phillim. 325, 1 Eng. Ec. 408; Deane v. Aveling, 1 Robertson, 279. “When the impotency doth sufficiently constare to be perpetual by the oaths aforesaid upon inspection, there the triennial proba- tion ceases.” Godol. Ab. 494. 5 Aleson v. Aleson, 2 Lee, 576; Lewis v. Lewis, cited 2 ib. 579. [ 230 } CHAP. XIV. ] PHYSICAL IMPOTENCE. § 248 (though some differ), the matrimony is not by and by to be adjudged void ; but she is to expect until he have overreached the eighteenth year of his age, wherein plena pubertas is con- cluded; and, if then also he be unable to pay his dues, at the instance of the woman the marriage may be dissolved, unless the judge, upon the consideration of the qualities of the per- sons, shall grant a longer time.” 1 § 247. In Greenstreet v. Cumyns, the cohabitation seems not to have continued for three years. The form of the alle- gation in this respect is not given in the report; but the mar- riage was celebrated in July, 1807, and the suit was instituted Nov. 1809. The libel, produced by the woman, charged the husband’s incapacity for consummation ; and he admitted the fact in his answers. The physicians and surgeons appointed to inspect his person stated substantially in their report, that, though the disease and imperfection of the parts were not such as to imply impotence to the execution of their func- tions ; yet that, having heard his own accurate history of the alleged difficulty, they put full faith in ,his account; and, as he was in good health, they could hold out no hopes of its being remedied by any medical treatment. The wife seems not to have been inspected. Lord Stowell was of opin- ion, that the proofs were sufficient, and that there was no collusion, and pronounced for the nullity. “ There is an air of truth,” he said, “in the evidence, and a great disposition on the part of the husband to atone for the injury he has in- flicted on this lady; being in utter ignorance himself of his constitutional defects. It appears he was incapable at the time of the marriage, and has continued so ever since.” 2 § 248. In cases proper for the application of the three years’ rule, a substantial compliance with it seems to be all which is required by the courts. There need not be a living together de die in diem, but a general cohabitation is suffi- ~ Swinb. Spousals, 49. ' #Greenstreet v. Cumyns, 2 Phillim. 10, 1 Eng. Ec. 165. [ 231 ] § 250 NULLITIES OF MARRIAGE. [BOOK In. cient. The libel need not allege (we are now stating the practice in the English ecclesiastical courts) specially when, where, and how long in each place the parties cohabited ; this being proper matter for plea on the other side” But where the objection was taken, and it appeared, that, though the three years had elapsed, the parties had been necessarily separate a considerable portion of the time, the court allowed a further time, and enjoined the complainant to return mean- while to cohabitation.2 On the other hand, in some late English cases, the divorce was granted on a period of cohabi- tation somewhat within three years; and the court seemed evidently inclined to hold the rule, in respect to time, less strictly than some of the former decisions appear to maintain.* § 249. In no reported American decisions, has this rule of triennial cohabitation been considered. But, since it is rea- sonable, is remedial also, reaching cases in which otherwise the proofs would fail, we may presume our tribunals will not reject it as being repugnant to our institutions and relations. A modification of it may, in some States, be required; as in New York, where a statute of limitations obliges the party, proceeding on the ground of impotence, to bring his suit within two years after the marriage. In the modern Scotch law, the substance of the rule is held; but “there is no pre- cise, fixed period during which the parties must cohabit before a decree will be pronounced;” though anciently the time was three years, as in the canon law.® § 250. There is also a peculiarity in the method of obtain- ing evidence, under some circumstances, in these cases. Since 1 Welde v. Welde, 2 Lee, 578 ; Sparrow v. Harrison, 8 Curt. Ec. 16. 2 Welde v. Welde, supra. 3 Welde v. Welde, 2 Lee, 580, 586. * N.v. M. 2 Robertson, 625; s. c. nom. Anonymous, 22 Eng. L. & Eq. 637; U.v. F. 2 Robertson, 614. 5 New York, R. S. pt. 2, e. 8, § 83. 6 1 Fras. Dom. Rel. 59. [ 282 ] CHAP. XIV.] PHYSICAL IMPOTENCE. § 251 the plaintiff must establish both the impotence and its incura- ble nature; plainly under circumstances he can do it only by the aid of a medical and surgical examination, either of himself, or of the defendant, or of both. Therefore in Eng- land, Scotland, France, and probably every other country where this impediment to marriage has been acknowledged, the courts have compelled the parties, when necessary, to sub- mit their persons to such an examination. In ancient times and in some countries methods of unnecessary exposure have been employed. But unless some way of compelling proofs were followed, there would be a failure of justice, which the law of no country should allow. “It has been said,” remarks Lord Stowell, “that the modes resorted to for proof on these occasions are offensive to natural modesty. But nature has provided no other means; and we must be under the neces- sity of saying, that all relief is denied, or of applying the means within our power. The court must not sacrifice justice to notions of its own.”1 Something like this proceeding is known in the courts of the common law, in cases where a jury of matrons is called to ascertain, whether a woman, under sentence of death, is with child. § 251. Unless this rule of inspection is repugnant to our institutions and positive laws, it must be deemed to have been imported into this country by our forefathers.3 Chancellor Walworth followed it, without a doubt of his right to do so. He well remarked: “When the legislature conferred this branch of its jurisdiction upon the Court of Chancery, it was not intended to adopt a different principle from that which had theretofore existed in England, and indeed in all Chris- tian countries, as to the nature and extent of the physical incapacity which would deprive one of the parties of the 1 Briggs v. Morgan, 3 Phillim. 325, 1 Eng. Ec. 408, 410; 1 Fras. Dom. Rel. 60, 61; Poynter, Mar. & Div. 135, note. * Reg. v. Wycherly, 8 Car. & P. 262; The State v. Arden, 1 Bay, 487, 489. 5 Ante, c. 2. 20* [ 233 ] § 253 NULLITIES OF MARRIAGE. [Book III. power to contract matrimony. And the court is, by neces- sary implication, armed with all the usual powers, which, in that country from which our laws are principally derived, are deemed requisite to ascertain the fact of incapacity, and with- out which it would be impossible for any court to exercise such a jurisdiction.” } § 252. In the same opinion he also says: “In every case of this kind, it is necessary that the court should proceed with the greatest vigilance and care, not only to prevent fraud and collusion by the parties, but also to guard against an honest mistake under which they may be acting merely from the want of proper medical advice and assistance. From the very nature of the case, it appears to be impossible to ascertain the fact of incurable impotence, especially when the husband is the complaining party, except by a proper surgical examination, by skilful and competent surgeons, in connection with other testimony. And, if the allegations in the bill have neither been admitted nor denied by an answer on oath in the usual manner, the defendant should be exam- ined on oath, before the master, as to the truth of those alle- gations.‘ This appears to be the ordinary course of proceed- ing in such cases at Doctors’ Commons. And I have no doubt as to the power of this court to compel the parties, in such a suit, to submit to a surgical examination, whenever it is necessary to ascertain the facts. essential to the proper decision of the cause.” § 253. The Ohio court has denied the right to compel an inspection; but, under what circumstances, and influenced by what considerations, does not appear. Whatever is known on the subject is embraced in the following, from the editor of the Western Law Journal. “I have been,” he says, “counsel in a case where the wife complained of impotence * Devanbagh v. Devanbagh, 5 Paige, 554, 556. ® Poynter Mar. & Div. 126, note. * Devanbagh v. Devanbagh, 5 Paige, 554, 557. [ 234 J CHAP. XIV.] PHYSICAL IMPOTENCE. § 254 in the husband. There being no other mode of proof, appli- cation was made to the Supreme Court on the circuit for an order of inspection. The question was reserved to the court in bank, who decided that they had no power to grant the order, and the petition was dismissed on account of the im- possibility of proof.” 1 § 254. The right of inspection, resting on necessity, ends of course where the necessity ends. Therefore, if, before suit brought, the party has been by physicians and surgeons in- spected, nothing further will ordinarily be directed, only their testimony will be taken.2, But where the answer of the de- fendant wife (the proceeding being in equity) admitted the present incapacity, and denied its Having existed at the time of the marriage; the difficulty being of a nature to render necessary a surgical examination of her person, in connection with interrogatories for her to answer under oath as to the commencement and progress of the disease creating it; this proceeding was ordered, although she had been -previously examined ex parte, and without oath, by her own medical attendants? The court will not order an inspection until, in the progress of the cause, this proceeding appears plainly to be required for the establishment of justice between the par- ties.4. And in an English case, of a complexion which plainly would render necessary an inspection, should it proceed to a hearing, the court deferred the admission of the libel tendered by the husband, and gave the defendant wife an opportunity to reply by affidavits; whereupon, it appearing highly im- probable the suit could succeed, the proceeding was dis- missed. 1 2 West. Law Jour. 131. . * Brown v. Brown, 1 Hag. Ec. 523, 3 Eng. Ec. 229; Devanbagh v. Devan- bagh, 5 Paige, 554, 557. 5 Newell v. Newell, 9 Paige, 25. * Anonymous, Dean & Swabey, 295, 333. 5 Briggs v. Morgan, 2 Hag. Con. 324; s.c. 2 Phillim. 325, 1 Eng. Ec. 408, And see Aleson v. Aleson, 2 Lee, 576. [ 235 ] § 256 NULLITIES OF MARRIAGE. [Book I. § 255. On a like ground, if the order of inspection will probably hinder justice, not promote it, the order will not be made; or, if made, it will not be enforced. Were inspection always insisted upop, the defendant, in many cases, might only withdraw beyond the reach of the process of the court, to defeat the suit. Accordingly, where a defendant husband who had left the country gave in no answers, and refused to be inspected, a certificate (twelve years after marriage), that the woman was virgo intacta, and apta viro, coupled with his two several confessions to medical witnesses of incapacity, and proof of her health having suffered, was held to be suffi- cient! Where the wife is defendant, and is out of the juris- diction of the court, the allowance of her alimony may be suspended to compel her into submission to an examination? § 256. When the woman is plaintiff in a suit of this sort, and the libel states her to have been a spinster at the time of the marriage, an inspection of her person, as well as of the husband’s, is usual; because her virginity and capacity implies his incapacity. Indeed Dr. Lushington once re- marked, that the court always requires a certificate of med- ical persons as to the condition of the woman ;* but probably the remark was intended for only such a case as the one under consideration, and for cases arising under the three years’ rule, where the proof of incurable impotence consists, wholly or in part, in showing the non-consummation ;° since, in other cases, the woman seems not to have been inspected. Neither does any good reason appear, why, as a universal 1 Pollard v. Wybourn, 1 Hag. Ec. 725, 3 Eng. Ec. 308 ; Coote Ec. Pract. 368. * Newell v. Newell, 9 Paige, 25. 3 Coote Ec. Pract. 367. * Pollard v. Wybourn, 1 Hag. Ec. 725, 3 Eng. Ec. 308. 5 Ante, § 245. ® See Greenstreet v. Cumyns, ante, § 247, 3 Phillim. 10,1 Eng. Ec. 165. And see Norton v. Seton, 3 Phillim. 147, 158, 1 Eng. Ec. 384, 386; Harri- son v. Sparrow, 1 Curt. Ec. 1, 7 Eng. Ec. 357, 4 E. F. Moore, 96; post, § 260. [ 236 ] ' ' CHAP. XIV.] PHYSICAL IMPOTENCE. § 258 rule, she should be inspected; though, as was said in an old case, “ the virginity of the woman is very material;”? and, where she can make it appear, there is a propriety and useful- ness in her doing so. But suppose she were not virgo intacta, having been deflowered before the marriage; she would still be entitled to a sentence of nullity, if she had married a man incurably impotent, from a defect obvious on examination. § 257. This inspection is, in the modern English practice, intrusted to three medical men; either two physicians and a surgeon, or two surgeons and a physician; nominated by the promoter, the adverse party having the privilege of naming, if he pleases, one or more of them? It appears formerly to have been performed, as to the woman, in whole or in part by matrons and midwives. The rule of the ecclesiastical courts, not followed on the hearing of divorce causes in this country, of requiring substantially two witnesses to each specific fact,# renders it necessary, in those courts, that there be more in- spectors than one. No redson however occurs, why we in this country should follow the English practice in this re- spect. § 258. The inspectors are sworn Their certificate, accord- ing to the invariable practice in England, does not give rea- sons. “TI should be extremely reluctant,” said Dr. Lushington, “to depart from that practice. In the first place, it is a received maxim, Cuilibet in arte sud credendum est. Secondly; if the grounds were given, how could the court comprehend the reasons, and decide between conflicting opinions ? Be- 1 Grimbaldeston v. Anderson, cited 3 Phillim. 155, 1 Eng.’ Ee. 385. 2 Coote Ec. Pract. 388; Deane v. Aveling, 1 Haberisony 279, where the proceedings appear in full. 5 Essex v. Essex, 2 Howell St. Tr. 786, and ante, § 237; ‘AyL Parer. 228. In Welde v. Welde, 2 Lee, 580, the wife, who was libellant, was inspected by midwives, and the defendant by surgeons. ’ * See Atkins v. Atkins, post, § 465, note; ante, § 28, note. 5, Coote Ec. Pract. 389. [237] § 259 NULLITIES OF MARRIAGE. [Book m1. sides, the introduction of the grounds would lead the court into minute inquiries about matters the decision of which the court would be most anxious to avoid, unless it were impera- tively called to pursue the investigation.” But, where the case requires, the inspectors may also be examined as wit- nesses.2 Their certificate is usually considered merely in con- nection with other proofs; and Sir John Nicholl remarked, that, even as collateral, it is always taken with caution; he was aware of no case in which it had been admitted as sufficient alone’ Yet in Pollard v. Wybourn, the certificate was certainly the leading proof of impotence; and it might be difficult to state any legal principle which would withhold from it, when admissible, full credit to the extent to which it should be found applicable. § 259. In the New York case of Devanbagh v. Devanbagh, where the proceeding was in equity, and the bill, brought by the hwsband, was taken for confessed, Chancellor Walworth gave the following directions : “ There must be a reference to a master to take proof of the facts and circumstances stated in the complainant’s bill; and particularly the master must inquire and report, whether the defendant, at the time of the solemnization of the marriage with the complainant, was physically incapable of entering into the marriage state, and whether she is still virgo intacta, and incapable of consum- mating the marriage contract, by reason of her own incurable impotence. The order of reference must also direct, that the master examine the defendant, on oath, as to the several mat- ters alleged in the bill, and that the defendant submit herself to such surgical examinations, and examinations by matrons, * Pollard v. Wybourn, 1 Hag. Ec. 725, 3 Eng. Ec. 308. In Deane v. Aveling, 1 Robertson, 279, 284, is the form of certificate, with some of the other proceedings. 2 Deane v. Aveling, 1 Robertson, 279. 3 Norton v. Seton, 3 Phillim. 147, 1 Eng. Ec. 384, 387; Rogers Ec. Law, 2d ed. 641. * Pollard v. Wybourn, 1 Hag. Ec. 725, 3 Eng. Ee. 308. See also Green- street v. Cumyns, 2 Phillim. 10, 1 Eng. Ec. 165. [ 238 ] CHAP. XIV. ] PHYSICAL IMPOTENCE. § 260 as the master may think proper to direct, for the purpose of ascertaining the fact of the alleged impotence; but thai no person shall be present at such examinations, except the sur- | geons and matrons who may be selected by the master for that purpose, unless with her consent; and that, in the selec- tion of surgeons and matrons for that purpose, the master have a due regard to the feelings and wishes of the defendant. The master is also to be directed to return the proofs taken before him, in a schedule to his report. No person is permit- ted to be present before the master, on the reference, except the parties, and their counsel and witnesses, and such friends of either of the parties as they, or either of them, may request to attend the reference. And the complainant, under the direction of the master, must furnish the necessary funds to pay the expenses of the surgical examinations of the defend- ant, if a sufficient and satisfactory examination has not already been made.”?! § 260. There are no special considerations, important as to the amount of proof, distinguishing these cases from others. As illustrative, the case of Greenstreet v. Cumyns, already stated, may be mentioned? In Harrison v. Sparrow, also a suit promoted by the wife, the husband refused to undergo inspec- tion, and was pronounced for the refusal in contempt. Then he appeared and offered to be inspected, but was refused. The certificate, as to the plaintiff wife, was in effect, “ that there were no positive proofs of connection having taken place, or the contrary; but that there were decidedly no physical impediments to sexual intercourse.” “There were also the husband’s confessions, and some collateral evidence. He ad- mitted the non-consummation, but denied his inability. The parties had lived together in the matrimonial relation seven years. The court, satisfied there was no collusion, gave sen- * Devanbagh v. Devanbagh, 5 Paige, 554, 558. For the termination of this suit, see 6 Paige, 175. * Ante, § 247. [ 239 ] § 261 NULLITIES OF MARRIAGE. [Book m. tence of nullity In Keith vy. Keith, where a divorce was granted, there was the testimony of three respectable men, who concurred in saying, that, a few days before the sitting of the court, they submitted the defendant to an examination, and found him destitute, in particulars they pointed out, of the members or qualifications of a man.2_ Other illustrations may be seen on consulting, in the books of reports, the cases cited in the foregoing sections. VI. Concluding Views. §261. We hardly need add, that impotence is a canon- ical impediment, rendering the marriage voidable, not void. Until, therefore, sentence passed, in the lifetime of both the parties, it is perfectly good; but the sentence makes it void ‘ from the beginning The statutes generally of the States of this country mention impotence as a ground of divorce, without saying, whether the decree of divorce operates to annul the marriage as from the beginning, or only as from the date of its rendition; but, though we have no adjudica- tions on the point, plainly the principles of law applying leave the case here as it stands in England. The marriage was a voidable one; the sentence renders it void from the beginning. 1 Harrison v. Sparrow, 1 Curt. Ec. 1, 16, 7 Eng. Ee. 357, 859. Affirmed by the Privy Council, 4 E. F. Moore, 96, 103. ® Keith v. Keith, Wright, 518. * Elliott v. Gurr, 2 Phillim. 16, 19, 1 Eng. Ec. 166, 168; Poynter Mar. & Div. 123; Sneed v. Ewing, 5 J. J. Marshall, 460. * Ante, § 46, 53, 54, 57, 59, 235. [ 240 ] CHAP. XV.] THE SUIT FOR NULLITY. § 263 CHAPTER XV. THE SUIT FOR NULLITY. § 262. In the foregoing chapters of the present book, have been considered the several grounds for holding a marriage to be void or voidable. In subsequent pages of the present volume, the several causes for annulling valid marriages will be considered. And the suit, whether called a suit for nullity, for divorce, or indeed for separation, is substantially governed by principles of uniform applicability ; and those principles are to be unfolded in later pages of our volume. Some con- siderations, however, relating specially to this suit of nullity, will now be stated. Already it has been mentioned in these pages, that, in England, any person having an interest in a supposed marriage may promote a suit to test its validity. Whether the right in this country extends beyond the mere parties to the marriage appears to be an open question. And though a void marriage needs no sentence to make it null, practically a sentence of nullity in respect of such a marriage is often of great importance to. the parties and to the community.” § 263. Besides the suit of nullity, mentioned in the last sec- tion, the English practice furnishes another proceeding, some- 1 Ante, § 51. * See Wightman v. Wightman, 4 Johns. Ch. 343, 346; Patterson v. Gaines, 6 How. U.S. 550,592; Martin v. Martin, 22 Ala. 86; ante, § 205, 206. 21 [241] § 264 NULLITIES OF MARRIAGE. [Book IIL. times, yet rarely, resorted to in England,! called a suit of jactitation of marriage; which suit accomplishes, in a certain aspect, substantially what is done by a suit of nullity. In it the man, for instance, for it may be carried on by either patty, complains that the woman has maliciously and with- out authority boasted of being his wife, and prays to have her enjoined silence respecting such boasting. There are three defences to this suit; either, first,a denial of the boasting; or, secondly, an averment of a valid marriage subsisting; or, thirdly, an averment that the plaintiff permitted the defendant to assume the character of husband or wife. Where, and only where, this second defence is made, the suit becomes substantially one of nullity.2 It is a proceeding, however, which appears to be unknown in the United States. § 264. In the United States, as already observed,’ we have never had ecclesiastical courts ; and, before other tribunals can take cognizance of causes ecclesiastical, they must receive statutory authority. Therefore a court of equity cannot en- tertain jurisdiction to avoid a marriage for impotence,‘ or for any other like canonical defect. But in some cases of void marriages, our equity courts interfere under their ordinary powers. Thus they have inherent jurisdiction over all ques- tions of fraud, mistake, duress, and lunacy; and, when a mar- riage is alleged to be void by reason of one of these im- pediments, they ordinarily entertain the suit for having it so declared. The reason is, that, although where, as in Eng- land, there are ecclesiastical tribunals, and perhaps where, in this country, another forum has been provided, equity does not entertain such suits, still the jurisdiction is inherent in the equity court; slumbering, when it slumbers, only out of 1 See 1 Lee, 16, note, 5 Eng. Ec. 289. ° Bodkin v. Case, Milward, 355; Walton v. Rider, 1 Lee, 16, 5 Eng. Ec. 289; Hawke v. Corri, 2 Hag. Con. 280; post, § 704, 705. ® Ante, § 19, 21. 4 Ante, § 104, note. [ 242 ] CHAP. XV.]} THE SUIT FOR NULLITY. § 265 deference to the other more appropriate tribunal.) And it has been held, that, if a woman marries a man, the marriage being void because of his having a former wife living, she can maintain her suit in equity for the rents, profits, and re- delivery to her of the property whereof he obtained posses- sion under the marriage; and that, in this suit, the court will incidentally declare the marriage void.? § 265. The South Carolina Court of Chancery, however, refuses to entertain suits of nullity by reason of fraud, though the law of the State has provided no other jurisdiction. “The distinction,” observed Dunkin, Ch., sitting in the Court of Errors, “between the authority to declare a marriage null and void, or to grant a divorce, has no sanction either in reason or authority. The same general principle which would authorize courts of equity to declare a contract void for want of consent, would require them to interfere in cases of fraud or misrepresentation, and declare the contract no longer obligatory on one party when the other had refused to perform the duties imposed by it. But no court, either in England or in the United States, has ever declared a marriage null and void in its inception, which did not at the same time assume, as a necessary incident, the authority to divorce the parties, in England a mensé et thoro, in our sister States a vin- culo.”*® The weight of this decision, as one of general law to guide the courts of other States, is greatly impaired by the fact of the judges having misapprehended the distinction 1 Perry v. Perry, 2 Paige, 501; Wightman v. Wightman, 4° Johns. Ch. 348, 446; Burtis v. Burtis, 1 Hopkins, 557; Clark v. Field, 13 Vt. 460; Fornshill v. Murray, 1 Bland, 479, 483; Helms v. Franciscus, 2 Bland, 544, 579; Ferlat v. Gojon, 1 Hopkins, 478. And see Almond v. Almond, 4 Rand. 662; Keyes v. Keyes, 2 Fost. N. H. 553. Query, whether a court of equity can take jurisdiction to declare a marriage null on account of duress. See Hulings v. Hulings, 2 West. Law Jour. 131. 2 Young v. Naylor, 1 Hill Ch. 383. See McDonald v. Fleming, 12 B. Monr. 285. ® Mattison v. Mattison, 1 Strob. Eq. 387, 392. [243 ] » § 267 NULLITIES OF MARRIAGE. [Boox Im. elsewhere taken, and having erred in supposing there were no authorities contrary to their decision. §266. The statutes of North Carolina give jurisdiction to certain courts “in all cases of applications for divorce ;” and, after specifying certain sufficient offences, provide, that they may interfere where “any other just cause of divorce exists.” And it is there held, as it is also under similar statutes else- where, that, though a sentence of nullity is not properly a divorce, yet, under this provision, jurisdiction may be taken whenever there has been a marriage de facto, to declare it void! But in most of the States, statutes regulate this mat- ter of jurisdiction in so clear terms as to leave no room for question. § 267. While, as already observed,? a suit for nullity follows substantially the same rules as a suit for divorce, yet, let us here add, it cuts deeper into the soil of consequences than the divorce suit; because the interests and rights of third persons are more affected by it. The children especially have their legitimacy or illegitimacy irrevocably established by this suit, not by a suit for divorce. Therefore it has been said to be a more highly privileged suit;? while it excites, to even a greater degree, the vigilance and caution of the court4 Yet where a case is sufficiently made out, the court has no discre- tion, but it must proceed to the sentence.? Itis of no avail, that the defendant is innocent of any intent to do wrong, or that the plaintiff is in fact the more guilty party.6 Yet these con- * Johnson v. Kincade, 2 Ired. Eq. 470; Scroggins v. Scroggins, 3 Dev. 535; Ritter v. Ritter, 5 Blackf. 81; Hamaker v. Hamaker, 18 IH. 137. 2 Ante, § 262. 3 Butler v. Butler, Milward, 56, 62. . * Harford v. Morris, 2 Hag. Con. 423, 4 Eng. Ec. 575; Wright v. Elwood, 1 Curt. Ee. 662, 666; Wright v. Ellwood, 2 Hag. Ec. 598, 4 Eng. Ee. 216; Legge v. Dumbleton, 9 Jur. 144. 5° Cobbe v. Garston, Milward, 529; ante, § 187. 5 McCarthy v. DeCraix, 2 Cl. & F. 568, note; Miles v. Chilton, 1 Robert- son, 684. And see ante, § 98, 122, 175, 197, 206, 221, 236, 241, 242. [ 244 ] CHAP. XV.] THE SUIT FOR NULLITY. § 267 . siderations may have weight with the judge when a discre- tionary power is invoked; therefore, in the ecclesiastical practice, a cause will not be rescinded after a hearing, to allow the plaintiff to prove the fact of the marriage, the -nul- lity of which he sets up, if his conduct appears not to have been meritorious.1 ? Nokes v. Milward, 2 Add. Ec. 386, 2 Eng. Ec. 356, 365. a1* [245] BOOK IV. GENERAL VIEW OF DIVORCE. CHAPTER XVI. HISTORY AND POLICY OF DIVORCE LAWS. Srcr. 268. Introduction. 269-279. Historical. 280-290. Theoretical and Practical. § 268. Havine, in the preceding part of this volume, con- sidered the causes for pronouncing a marriage void from the beginning, let us now look at those which have been acknowl- edged as sufficient to dissolve it, when originally valid. And in so doing, let us contemplate somewhat the history of this matter. We shall therefore divide what is to be said into, J. Historical; II. Theoretical and Practical. J. Historical. § 269. On no question has greater diversity of opinion pre- vailed, than on the question, whether, and for what causes, a marriage originally valid may properly be dissolved. The two extremes of opinion are, that, on the one hand, it should be deemed a mere temporary partnership, which either party may abandon at pleasure; and, on the other hand, that it be indis- soluble for any cause, by any earthly power. The former [ 246 J ~ CHAP. XVI.] HISTORY AND POLICY OF DIVORCE LAWS. § 271 view has prevailed, not only among savage and barbarous people, but even among people polished and educated. The latter view has found favor only in modern times, as a relig- ious refinement, unknown in the early ages of the church.1 § 270. The early law of Rome, like its history, is involved in obscurity. But the law of the twelve tables is generally supposed to have allowed considerable latitude of divorce ; while so great was the purity of morals, and so strong the sentiment against the dissolution of marriage, that no in- stance of divorce occurred during the first five hundred years of Roman history.2 The first Roman divorce is said to have | been that of Spurius Carvilius Ruga, who, a. v.c. 523, B.C. 231, repudiated his wife, whom he much loved, because of her barrenness ; being impelled thereto by an oath the censors had obliged him to take, that he would give children to the repub- lic. Be this however as it may, divorces became afterward common at Rome; and they were allowed pretty much at the pleasure of either of the parties.® § 271. Instead of entering into an original statement of this matter of history, let us look at the statement made by an- other. Mr. Fraser, in his work on the Personal and Domestic 1 The doctrine of the indissolubility of marriage did not become a general tenet of the Roman Church until the Council of Trent, a. p. 1653, estab- lished it as indissoluble ; though the notion had before that time prevailed to a considerable extent, and found its way into England and Scotland. 2 This has been doubted. Brower de Jure Connub. p. 730, 731; Taylor Civ. Law, 359. See 1 Fras. Dom. Rel. 646, 2 Kent’s Com. 103. We fre- quently meet with the argument, supposed to militate against the policy of permitting divorce, that Rome in her palmiest ages had no divorces, though her laws allowed them. One cannot fail of seeing how much more heavily this argument bears the other way ; because it recognizes the fact, palpable in reason also, that corruption in the public depends not on the laws enacted for the redress of persons who have received injury from it, so much as on other things. 5 Rees Cyc. art. Divorce; Head v. Head, 2 Kelly, 191, 208, Nisbet, J.; Encyc. Amer. art. Divorce ; 1 Burge Col. & For. Laws, 641. [247 ] “ § 271 GENERAL VIEW OF DIVORCE. [BOOK IV. Relations in Scotland, has collected a mass of authority; and what he says, with his learned references, is given below: “ The laws of the empire, on the subject of divorce, are con- fused and inconsistent ; and the most marked contrast is pre- sented by the civil and ecclesiastical legislation of the time. Augustus felt the pressing exigency for legislation, but he saw the danger of interfering with a cherished privilege. He did not restrain the ancient liberty of divorce further than by de- manding the presence of seven witnesses to the act2. During the next three centuries, the license of unlimited divorce was abused, beyond any parallel in the history of ancient nations; and formed the fertile theme for the reprobation of satirists and philosophers of the period.2 This liberty was endured till the age of Constantine, who, in the year 331 of the Chris- tian era, took away the right of divorce at the will of either or both parties, when they could assign no cause for the act; and he laid down a series of rules, settling the causes which justified the dissolution of the marriage, drawn, however, more from the manners and customs of the Pagan world than from the precepts of Christianity. In the year 439, the clamor of the Pagan nations, who composed then the greater part of the Roman empire, extorted, from the Emperors Theodosius and Valentinian, another change, by which the law of Constan- tine was altered, and divorce by mutual consent was allowed.5 Ten years later, however, they promulgated a new constitu- tion, restricting that which they had formerly enacted. Con- 1 1 Fras. Dom. Rel. 647-651. 2 Dig. de Divort, 25, 2,9. Boehmer, 4, 19, 11. 3 Seneca, lib. 3, de Benef.c.16. Juv. Sat. 4, v. 146. * Boehmer, 4,19, 12; L.1, C. Theod. de Repud. The man was at liberty to give a bill of divorce to his wife, if she was an adulteress, a sorceress, or a bawd; and the woman, on the other hand, might give a bill of divorce to the husband, if he was a murderer, a sorcerer, or a robber of graves. But for being a drunkard, a gamester, or a fornicator, she had no redress. Thus the man could divorce the wife for adultery, for which she could not divorce him. 5 Nov. Const. Apud. Gothofred. in Cod. Theod. tom. VI. in Append. tit. 17. [248] CHAP. XVI.] HISTORY AND POLICY OF DIVORCE LAWS. § 272 sensu licita matrimonia posse contraht, contracta non nisi misso repudio dissolvi precipimus; solutionem etenim matrimonii dif ficiliorum debere esse, favor imperat liberorum. Causas autem repudti hac saluberrima lege apertius designamus. ‘Then fol- low a multitude of causes for allowing divorce to the wife, and a still greater number for allowing it to the husband.! § 272. “ The law continued, without much fluctuation? till the age of Justinian; but his entire reign was signalized by perpetual alterations of it. He did not permit divorce merely at the will of either party, or even by consent of both; but, though a zealot for Christianity, he allowed divorce to either spouse for a multitude of reasons, totally different from those of adultery or non-adherence,— the only causes thought to be sanctioned by the gospel. The subjects of the ‘eastern empire did not easily submit even to these slight restrictions,‘ placed upon the privilege of divorce by mutual consent which the ancient Romans enjoyed; and, as the law would not grant redress, secret murders were perpetrated by one spouse weary of the other ‘The successor of Justinian, says. Gibbon, ‘yielded to the prayers of his unhappy subjects, and restored the liberty of divorce by mutual consent; the civilians were unanimous, the theologians were divided.’®> In the year 556, appeared this Novel of Justin, restoring the ancient law, and bearing as the reason for its enactment, that it was intended to annihilate the remedy of poison so 2 Code, 5,17, 8. It would be useless to incumber these pages with the numerous causes of divorce specified in this constitution. The principal in- novations on the preceding law and constitutions are, the multiplication of the causes of divorce, beyond the remotest connection with matrimonial offences. ? See Bingham, Christian Antiquities, b. 22, ¢. 5, § 6, 7. ® Code, 5, 17, 11, de Repud. Nov. 22, Nov. 117,c.8 & 9. Selden, Uxor. Ebraica, 1. 3, c. 28; Bingham, b. 22, ad fin. * Brower de Jure, Connub. 2, 31, 17, p. 742; Bockleman, Comment, vol, 2, p. 142. Boehmer, Jus. Eccles. Protest. 4,19, 14, in fin. 5 Gibbon’s History, c. 44. [249 ] § 272 GENERAL VIEW OF DIVORCE. [Boox Iv. often resorted to.1 The law thus continued to allow divorce by mutual consent; and also at the instance of either party, upon his or her establishing any of the other grounds con- tained in the preceding constitutions, —down to the time of Leo the Wise, in the ninth century, who added to the causes of divorce by the wife, the insanity of the husband? Selden has described the great laxity in granting divorces in the period intervening between the age of Justinian and that of Leo ;? but it is clear, from the extant records of the time of the later emperor, that the Justinian legislation on this sub- ject, by which divorce was allowed, was in observance in his reign, and even down to the end of the empire of the East.* And this law was that in observance when the Council of Trent sat,> and the law of the Greek Church still recognizes it.6 After referring to the laws of Justinian and Justin, Wal- ter, a professor of law at Bonn, a Roman Catholic, and an author of name, whose work has been cited as authority in England,’ thus writes: ‘ All these ordinances, although they were in‘ contradiction to the Scriptures, the Eastern Church gradually adopted. The Basilica also made no change, but repeated verbatim the law of divorce contained in the Novels of Justinian. The practice of the church coincided with this. 1 Nov. 140. “Statuimus ut prout olim juris fuit, matrimoniorum soln- tiones ex consensu fieri liceat.” He adds another reason: “ Si mutua affec- tio matrimonia conficit, merito diversa voluntas eadem per consensum dirimit.” ‘ * Nov. Const. Leo. The 112th Novel of Leo is to the effect, “ ut si ma- ritus per matrimonii tempus in furorem incidat, intra quinquennium matri- monium solvi nequeat; eo autem elapso, si furor eum adhuc occupet, solvi possit.” See also Nov. 111, as to the wife’s insanity. ® Selden, Uxor. Eb. lib. 8, cap. 29. * Basilikon, lib. 28, tit. 7, ed. Fabrotti, tom. 4, p.313 ; Launclavius in Jure Greco Romano, tom. 2, p. 1, seq.; Boehmer, 4, 19, 15; Selden, Uxor. Eb- raica, lib. 3, cap. 29. ® See the statement of the Venetian Ambassadors in the 8th book of Father Paul’s History of the Council of Trent. * Durand de Maillane Dict. Droit. Can. voc. Separation. 710 CL. & F. p. 752, and Gurney’s report of the argument, p. 137. [ 250 ] CHAP. XVI.] HISTORY AND POLICY OF DIVORCE LAWS. § 274 But the system of divorce by mutual agreement which had been reénacted by Justin was, after his time, silently abol- ished, as the Basilica declared generally that divorce for any but the appointed causes was unlawful. ‘Then appeared the ordinance of the Emperor Leo, who enacted, that the incurable insanity of the husband should be a ground of divorce. It is, besides, remarkable, that the law of the Greek Church yet holds that it is only the unfaithfulness of the wife, but not of the man, that will be regarded as proper adultery, and as a valid ground of divorce,’ 4 § 273. “The civil legislation of the West, long after it had passed out of the hands of the Roman Emperors, exhibited the same laxity of divorce. Among the formularies of Mar- culphus, who wrote in France in the year 672, there is the form of divorce by mutual consent ;? and,in the Barbarian codes, the Roman law allowing that freedom will be found to have been received? § 274. “This lax and informal mode of severing the most sacred of all the ties of life was changed, in the West, into an opposite extreme, through the gradual operations of the church. The contract of marriage was converted into a sacrament, declared a contract for life, and an absolute pro- hibition ventilated against all divorces. It would serve no practical end to travel through the writings of the fathers, the statutes of councils and of synods, or the rescripts of popes, to trace the gradual progress of opinion, by which a conclu- sion so opposite to ancient authority and law was first sanc- tioned and enforced by the Western Church. The doctrine 1 Walter Lehrbuch des Kirchenrechts, § 331. (Manual of the law of the Church.) ” Marculph. lib. 2, form 30; apud Balus. tom. 2, cap. 423. 3 Balus. form 19, ibid. ; Selden, Ux. Eb. lib. 3, cap. 29, 30. ". * See a late work in English, in which the whole doctriaes of the Fathers are discussed, but in rather too argumentative a mode to be impartial. Mor- gan on the Law of Mar. & Div. 2 vols. (1826). See on the other side Boeh- [251] § 274 GENERAL VIEW OF DIVORCE. [BOOK Iv. of the sacramental character of marriage seems to have been recognized by some of the Christian fathers from an early age of Christianity; it was enforced by ecclesiastical censures upon Christians; but, being utterly rejected by the civil courts, it could have no civil effects until the clergy wrested from the secular power, during the middle ages, the jurisdiction in all cases of divorce and marriage. The history of the doctrine, while it continued a mere question for theological speculation, or at most as involving only ecclesiastical censure, down to the period when it began to be enforced as law-by various provincial councils, and finally by the popes, has been learn- edly illustrated by various writers, with a reference to whom the subject may be dismissed.1. So early as the eighth cen- tury, the doctrine of marriage being a sacrament appears to have been enforced as law.2 It spread over all the countries subjected to the Western Church, and finally received the solemn sanction of the Catholic Church by the decree of the Council of Trent4 The history of the proceedings in that council, on this subject, is instructive, with reference to the alteration of the terms of the decision, to serve an urgent con- mer, Jus. Eccles. Protest. 4, 19,17, seq. See also Bingham’s Christian An- tiquities, b. 22, c. 5, and Beza, de Repud. et Div. p. 153. 1 Walter, Lehrbuch des Kirchenrechts, § 310, 320; Boehmer, 4, 19, 18, seq.; Historie du Divorce, p. 47; Nuptie Sacre, or an Inquiry into the Scriptural Doctrine of Marriage and Divorce. London, 1821. Morgan, ut sup.; Selden, lib. 3, cap. 31, and cap. 33; Durand, Maillane Dict. Droit Canonique voc. Marriage. It was a doctrine of the church at an early period, though it was not recognized by civil law. But see Brower, 2, 27, 14, who says it was unknown to the Church, till the 12th century. 2 Thid. ® Heinec. Elem. Juris. Germanici, tit. 14, § 328-332; Merlin Répertoire, voc. Divorce, § 3; Pothier, Traité du Mariage, art. 462. * It is in these terms: “ Siqris dixerit Ecclesiam errare, cum docuit et docet, juxta Evangelicam et Apostolicam doctrinam, propter adulterium alterius conjugum, matrimonium vinculi non posse dissolvi, et utrumque, vel etlam innocentem, qui causam adulterio non dedit, posse, altero conjuge vivente, aliud matrimonium contrahere; mecharique cum qui dimissa adul- tera aliam duxerit, et eam que dimisso adultero alii nupserit; anathema, sit.” (Sess. 24, Can. 5, 7, de Sacram. Matrim.) [ 252 ] ae CHAP. XVI.] HISTORY AND POLICY OF DIVORCE LAWS. § 275 venience. The Venetian subjects of the Greek isles, whose doctrine and practice were contrary to the impending decision, made a hasty and earnest remonstrance against it, through the embassador of the republic, at Trent. The anathema had at first been directed against all who allowed the dissolu- tion of marriage for adultery and the liberty of second nuptials after divorce; and of this description were the terri- fied remonsirants. For their satisfaction, therefore, the curse was thrown into a new shape. It no longer condemned those who affirmed this doctrine; but it only devoted to de- struction, all who held that the church was wrong in teach- ing the contrary.” 1 § 275. So much for Mr. Fraser. The Mosaic Law, as gen- erally interpreted, allowed the husband to be the sole judge of the causes for which he might put away his wife; and this was equivalent to permitting him to divorce her at pleasure. The opinion is somewhat current among Protestant divines, that this liberty of divorce was intended by Christ to be restricted to the single cause of adultery ;® the Church of 1 1 Fras. Dom. Rel. 647-651. See further on the law of divorce, and its history in different ages and countries, Tebb’s Essay on Adultery and Di- vorce, passim ; Rees Cyc. art. Divorce; Encyc. Amer. Id.; Brewster’s En- ° eye. Id.; 2 Kent Com. 102 et seq.; Page on Divorce, 1 et seq:; Rogers Ec. Law, 2d ed. 359, note; 1 Lane’s Modern Egypt, 193 et seq.; 1 Burge Col. & For. Laws, 640. In Hanks vy. Hanks, 3 Edw. Ch. 469, is a sketch of the history of divorce in France. In Burtis v. Burtis, 1 Hopkins, 557, is a his- tory of divorce in the. State of New York. As to North Carolina, see 1 Car. Law Repos. 137, 413; 2 ib. 129; Collier v. Collier, 1 Dev. Eq. 352; Dickinson v. Dickinson, 3 Murph. 327. As to New Hampshire, see Parsons v. Parsons, 9 N. H. 309; Clark v. Clark, 10 N. H. 380. ? Deut. xxiv. 1. The words are, “because he has found some unclean- ness in her.” . Some’ have supposed, that they merely authorize the divorce in the case of her adultery ; but as, by the same law, adultery was to be pun- ished by death, a broader meaning must evidently be given to these words. Rees Cyc. art. Divorce. ® Matt. v. 32. The words are: “ Whosoever shall put away his wife, saving for the cause of fornication, causeth her to commit adultery ; and whosoever shall marry her that is divorced committeth adultery.” Milton 22 [ 253 ] § 275 GENERAL VIEW OF DIVORCE. [BooK Iv. Rome holding, that not even adultery is sufficient without the consent of the Pope. But other Protestants and the Greek contends, that by this language Christ did not intend to change at all the Jewish law on the subject. In support of this view, he cites the seventeenth verse of the same chapter, where he says, he did not come to destroy the law, but to fulfil. It is observable, that both in the original Greek, and in the English translation, the offence spoken of is fornication, which could be committed only before marriage; but no one supposes antenuptial incon- tinence to be a just ground of divorce ; wherefore we must seek some other, perhaps metaphorical, meaning for the word. Milton quotes Grotius, who “ shows, that fornication is taken in Scripture for such a continual head- strong behavior as tends to plain contempt of the husband, and proves it out of Judges xix. 2, where the Levite’s wife is said to have played the whore against him, which Josephus and the Septuagint, with the Chaldean, interpret only of stubbornness and rebellion against her husband ; and to this,” he continues, “I add, that Kimchi, and the two other rabbies who gloss the text, are in the same opinion.” That literal adultery was not meant by this word fornication, he argues from the further consideration, that adultery was punishable by death, and therefore, that divorce could be of no importance in such a case. Milton’s Prose Works, London ed. of 1848, by St. John, vol. 3, p. 256, 396. Dr. Taylor considers, that the word in the original “can with no propriety be rendered adultery.” But assuming that it can, he adds: “ A very sensible writer now before me has given the word this turn; namely, that no cause for separation could be good, except adul- tery, or such facts as had the nature, the rationem, of adultery ; such as were like it, tended to it, or, in short, would finally defeat and interrupt the destined end of this institution, as adultery actually did.” And he remarks of some of the words of Christ in restraint of divorce, as reported in the Evangelists, that they seem to allow of no exception, but are to be taken in a general sense, subject, like all other general words, to exceptions. Others, “immediately following, admit of onc, at least, which is said to be that of fornication. To which may be added, that his Apostle, who spake by his authority, has added another; namely, that of malicious desertion, if indeed it be another, and not comprehended under the former.” Elements of the Civil Law, p. 351. But still, assuming the word fornication to mean adul- tery here, it is further suggested, that Christ, addressing a people among | whom polygamy was allowed, — so that when the wife ceased to discharge, toward her husband, the duties enjoined by marriage, she ceased in fact to be a, wife, and he could marry another, and thus the question of his right to divorce her could not arise, —had reference, in the above passage, solely to what was really asked of him, as he knew the matter to lie in the mind of his questioners; namely, whether a man might put away a wife who [254] CHAP. XVI.] HISTORY AND POLICY OF DIVORCH LAWS. § 275 Church permit a more equitable interpretation of the Scrip- tures; and, though they do not favor divorce from whim or caprice, they deem some causes other than adultery to be allowable. Indeed it is not generally, though sometimes, questioned among Protestants, that dissolutions of the mar- riage for absolute and total desertion are expressly sanctioned adhered to him, and discharged her duties as wife; and he said, that, for no cause but her adultery (which might be committed while she still discharged her duties directly to her husband), could she be rightfully divorced, — leaving entirely out of his contemplation the case of one who refused to con- duct as wife to her husband. Martin Bucer, a man of great learning in the Reformed Church, is translated by Milton as follows: “‘ No man who is not very contentious will deny, that the Pharisees asked our Lord, whether it was lawful to put away such a wife as was truly, and according to God’s law, to be counted a wife; that is, such a one.as would dwell with her husband, and both would and could perform the necessary duties of wedlock tolera- bly. But she who will not dwell with her husband is not put away by him, but goes of herself; and she who denies to be a meet help, or to be so hath made herself unfit by open misdemeanors, or through incurable impotencies cannot be able, is not by the law of God to be esteemed a wife; as hath been shown both from the first institution, and other places of Scripture. Neither certainly would the Pharisees propound a question concerning such an unconjugal wife ; for their depravation of the law had brought them to that pass, as to think a man had a right to put away his wife for any cause, though never so slight. Since therefore it is manifest, that Christ answered the Pharisees concerning a fit and meet wife according to the law of God, whom he forbade to divorce for any cause but fornication; who sees not that it is a wickedness so to wrest and extend that answer of his, as if it forbade to divorce her who hath already forsaken, or hath lost the place and dignity of a wife by deserved infamy, or hath undertaken to be that which she hath not natural ability to be?” 3 Milton’s Prose Works, 310. These views I have selected and cited from a mass of matter tending to the same conclu- sion, not for the purpose of arguing the question, or of intimating any opin- ion upon it; but merely to show those who captiously declaim against all legislation which authorizes divorce for cause other than adultery, deeming it to be a blow aimed at Christianity itself, that, whoever is right, there is still another side to the question, and other people have religious scruples as well as they. “Who,” says Milton, shall answer for the perishing of all those souls, perishing by stubborn expositions of peculiar and inferior precepts, against the general and supreme rule of charity.” 3 Prose Works, 212. [ 255] § 275 GENERAL VIEW OF DIVORCE. [Book tv. in the New Testament! The Scotch statute, authorizing divorce for desertion, professed in the preamble to be declara- tory of the law as it always had been since the Reformation ; and, though there is doubt whether this view of the previous law is correct, still, beyond question, the statute is expressive of the general religious opinion prevalent in Scotland? 1 1 Cor. vii. 15. See the commentaries of Scott and others on this text. President Dwight, of Yale College, a. p. 1816, preached a sermon before the “executive, and a great part of the legislative, of the State” of Connec- ticut, a State always liberal in granting divorces, in which he took strong ground against all dissolutions of marriage, except for adultery. But he admitted, that “several respectable commentators, and among them Poole, Doddridge, and Macknight,” consider divorce for desertion justified by the text in Corinthians above cited. On a general view of the legislative and judicial practice of Connecticut in respect to divorce, he says: “ At this time, the progress of this evil is alarming and terrible. In this town [New Haven], within five years, more than fifty divorces have been granted; at an average calculation, more than four hundred in the whole State during this period; that is, one out of every hundred married pairs. What a plain proof is here of the baleful influence of this corruption on a people other- wise remarkably distinguished for their intelligence, morals, and religion. Happily, a strenuous opposition is beginning to this anti-scriptural law, which it may be fairly hoped will soon terminate in its final revocation.” 1 Dwight’s Theology, 87; 3 ib. 425,433. This hope of the learned divine has, however, never been realized; and in Connecticut divorces have con- tinued to be granted by the courts, for several causes prescribed by statute, and, where the statute has been inadequate to meet the equity of a merito- rious case, the legislature has dissolved the marriage by special act; till, at last, the general jurisdiction spoken of in a subsequent chapter, post, § 542 et seq., has been conferred on the courts. These divorces have all been from the bond of matrimony (Starr v. Pease, 8 Conn. 541), except only a single legislative divorce, which, under the special circumstances of the case, was from bed and board; a “ precedent,” says Judge Swift, “ not to be imi- tated.” 1 Swift's System, 193. Notwithstanding this liberty of divorce, or in consequence of it, there is no State in the Union in which domestic felicity - and purity, unblemished morals and matrimonial concord and virtue, more abound than in Connecticut; and she has justly won for herself the appella- tion of “the land of steady habits.” * 1 Fras. Dom. Rel. 654, 655, 677 et seq; Shelford Mar. & Div. 368; Brewster Encyc. art. Divorce. [ 256 J CHAP. XVI] HISTORY AND POLICY OF DIVORCE LAWS. § 277 § 276. In the struggles between truth and error, between light and darkness, between the unattainable wished for and the practical realized, between the prophetic good and the actual evil, — the minds of men sway often from extreme to extreme, in the tempest of this life of aspiration, on the one hand, and of earthly substance on the other. It is not strange, therefore, that the Roman Church, looking over the condition of man as concerns his matrimonial relations, should have greatly desired, for his good, to promote in him the unattain- able wished for, in contrast with what she had seen of the practical in heathen countries. And it is not surprising, that she should have forgotten how impossible it is for an iron outward rule to control the inward. Let us not, then, seek- ing for the middle course of light and truth, repeat, in our own minds even, the harsh charge so often brought against her by Protestant dissenters, of having fettered divorce in order to fill her coffers by undoing the band for the rich, who would pay her largely of their money. § 277. It is true indeed, that, though the church made mar- riage indissoluble, she did permit the Pope, as God’s vice- gerent on earth, to undo, when his Holiness saw proper, the matrimonial bond; and that this undoing brought her reve- nue. But on the other hand also, she permitted the courts of ecclesiastical jurisdiction to pronounce marriages null, on ac- count of impediments created by her to an extent quite ridic- ulous on any other theory than that of their having been brought into existence for the very purpose.! And when, as by and by we shall see,’ a mere confession of the impediment served to establish it in court, no great complaint could arise in the minds of unscrupulous laymen, that the church imposed on them too heavy a burden of matrimonial law. But even this facility, given by the church to persons desirous of freeing themselves from matrimonial connections which had proved 1 Ante, § 48, 49, 215. 2 Post, § 306. 22* [ 257] § 277 GENERAL VIEW OF DIVORCE. [Boox Iv. troublesome to them, only shows, how, in fact, the unrest of her iron rule of indissolubility operated in the minds of eccle- siastics ; it is only an awkward testimony to the injustice of the rule. But another testimony of the same kind exists in the liberty she gave of what is called divorce from bed and board. This proceeding, having, at least, no direct authority in Scripture ;! characterized, by Lord Stowell, as casting out the parties “in the undefined and dangerous characters of a wife without a husband, and a husband without a wife;”? which, in the language of Judge Swift, “places them in a sit- uation where there is an irresistible temptation to the com- mission of adultery, unless they possess more frigidity or more virtue than usually falls to the share of human beings;”® in the language of Mr. Bancroft, “punishes the innocent more than the guilty ;”* in the words of arecent English writer, is “a sort of insult, rather than satisfaction, to any man of ordi- nary feelings and understanding,” 5—- may be deemed the most corrupting device ever imposed by serious natures on a blind and pliant community.® It could never have been tolerated for a moment, but for the idea having entered men’s minds as a part of their religion, that marriage could not be dissolved without committing an offence against God ; from which point, it was easy to proceed to allow any compromise with good sense ; and, as the fruit of an attempted compromise, we have the ill-begotten monster of divorce a mensé et thoro, made up of pious doctrine and worldly stupidity. The desertion of one of the married parties, by the other, was disposed of by the suit 1 See Bishop Cozen’s argument in the Duke of Norfolk’s case, 13 Howell St. Tr. 1334. * Evans v. Evans, 1 Hag. Con. 35, 4-Eng. Ec. 310, 349. 5 1 Swifts System, 193. * 1 Bancroft Hist. U. S. 465. ®% Macqueen Hus. & Wife, 197. 5 And see the very sound remarks of Chancellor Kent, in Barrere v. Bar- rere, 4 Johns. Ch. 187,191. This learned judge elsewhere observes, that “these qualified divorces are regarded as rather hazardous to the morals of the parties.” 2 Kent Com.127. And see post, § 285. [258 ] CHAP. XVI.] HISTORY AND POLICY OF DIVORCE LAWS. § 278 for the restitution of conjugal rights ;1 whereby the wayward one was, in modern phrase, “ whipped into the traces.” § 278. When the Reformation had accomplished what she did accomplish in England, she left the ecclesiastical law, as it stood in the earlier times, in full control of this question of divorce. Marriage, by it, as we have seen, was indissoluble ; but separations, or divorces, a mensd et thoro were allowed, and the suit for the restitution of conjugal rights cured the evil of desertion. The Reformation wrought indeed, as we have seen, a change in Scotland; and a greater change was contemplated in England. “A commission was issued by Henry VIL, and renewed by his son, Edward VI, authoriz- ing Archbishop Cranmer and other leading ecclesiastics to inquire into this subject,” including a general revision of the ecclesiastical code, “and report to the crown the result of their deliberations. These commissioners embodied their opinions and suggestions in the form of a work, which was subse- quently published, under the title of Reformatio Legum Ec- clesiasticarum. Had their proposed emendations been adopt- ed, the quality of indissolubility would no longer have attached to the matrimonial contract; for they advised, that, in cases of adultery, malicious desertion, long absence, or capital en- mities, the marriage should be dissolved, with liberty to the injured party to marry again. They also recommended, that the remedy of divorce a mensé et thoro should be entirely abrogated and done away with.” But the changes thus pro- posed failed to be adopted, in consequence of a series of dis- asters, the principal one of which was the death of the king, not from any want of confidence in their utility. 1 Logan v. Logan, 2B. Monr. 142. For a practical illustration of the effect of this suit in England, see Barlee v. Barlee, 1 Add. Ec. 301. See also 50 Lond. Law Mag. 275. ? Ante, § 275. 5 Macqueen Parl. Pract. 467; 2 Burn Ec. Law, Phillim. Ed. 503. [ 259 J § 280 GENERAL VIEW OF DIVORCE. [BooK Iv. § 279. We have seen,! that the matrimonial law of Eng- land is the common law of this country; only, as we have no matrimonial courts, legislation is necessary before it can be practically enforced. Therefore no cause of divorce is ordi- narily allowed with us unless specifically mentioned in some statute. And the legislation of our States has been quite various. The suit for the restitution of conjugal rights has not been used in any of the States;? and, in most of them, judicial divorces from the bond of matrimony are permitted for adultery; and, in many of them, for a considerable num- ber of other causes, Divorces from bed and board are known in a portion of the States, not in another portion. Il. Theoretical and Practical. § 280. In all the States of our Union, men are at liberty to worship God in the way pointed out to them by their own understandings, and by the lights which their reason and in- ner convictions recognize. In none of the States is the burden placed upon men of supporting a form of worship not ap- proved by their own minds. Therefore the religious opinions of no mere sect in religion, whether it be the Roman Catholic Church, the English Church, or any church of dissenters, can be put forward to govern this legislative question of divorce, in any of our States. If the voice of Christendom were dis- tinct and united on this subject, as it is on the subject of whether a man may have more wives than one at the same time, that voice would undoubtedly be listened to, and fol- lowed by every legislative assembly. Yet we have seen, that different religious men and bodies of men have their differ- 1 Ante, §16 et seq. 2 See Cruger v. Douglas, 4 Edw. Ch. 433, 506; Coverdill v. Coverdill, 3 Harring. Del. 13. See also Rhame v. Rhame, 1 McCord Ch. 197, where the question was raised for South Carolina, but not absolutely decided. This jurisdiction has nowhere been conferred by statute. [ 260 ] CHAP. XVI.] HISTORY AND POLICY OF DIVORCE Laws. § 281 ent views of the Scripture teaching; therefore the legislatures of this country must act upon this subject in respect solely to the political and social bearings of it, not at all in respect to its religious bearings. And if they establish laws permit- ting divorce, they do not thereby injure, even in the inmost conscience, those who deem marriage a religious sacrament, and indissoluble. Such persons are under no compulsion to use the divorce laws, by appearing as plaintiffs in divorce suits; and, if they are made defendants, having violated their matrimonial duties civilly, they cannot complain of being cut off from their matrimonial rights civilly ; while still permitted to retain the seal of the sacrament pure and undefiled in their consciences, and not compelled to marry again. § 281. Looking, then, at this legislative question, we are led into the following course of observation. Matrimony is a natural right, and, being such, can be forfeited only by some wrongful act.1 Therefore the government would appear to be under obligation to permit every person of mature years to be the husband or wife of another, who will substantially perform the duties required in the matrimonial relation; and, when the relation is in good faith entered into, and one of the parties, without the other’s fault, so far fails in those duties as practically to frustrate its ends, the. government would on principle seem to be under obligation to provide, some means, whereby, the failure being judicially established: and shown to be permanent, the innocent party may be freed: from the matrimonial tie, and left at liberty.to form another alliance The guilty party, in such a case, would have no claim to be protected in a second marriage; and whether he should be permitted to marry, or not, is a question not of right with him, but of public expediency, upon which, as already observed,’ there is considerable diversity of opinion. 1 See also ante, § 134, 144. * See Taylor’s Elements of the Civil Law, 351. 2 Ante, § 211, 222. [ 261 ] § 283 GENERAL VIEW OF DIVORCE. [BOOK IV. § 282. Another proposition, corresponding to the foregoing, is the following: Every State has an interest alike in the pri- vate morals, the public happiness, the general virtue, and the legitimate increase, of the community. Therefore a sound policy would concur with private right, in demanding the dis- solution of marriages which had failed to accomplish substan- tially the ends for which they were created. By their disso- lution, the State would have the benefit of the fruits of such new alliances as the parties might choose to enter into, and would see the children trained under those better influences which harmony and matrimonial concord in the parents pro- duce. This principle applies both to desertion and other like offences, which, whether the divorce were allowed or not, would lead to.the relinquishment of cohabitation; and to some other matrimonial difficulties, where the cohabitation would be continued, but with great discomfort and irritation. For children born during a discordant cohabitation have their natures tainted by it; while their education, in which also the State has the highest interest, must almost certainly not be of a salutary character. § 283. Greater freedom of divorce than is thus indicated, is sometimes claimed; but to go so far seems plainly to be the dictate of natural justice, on the one hand, and public policy, on the other. At the same time, the permanence and perpetuity of the marriage relation should not be lost sight of! “Jt is the policy of the law,” a learned judge has well remarked, “ and necessary to the purity and usefulness of the institution of marriage, that those who enter into it should regard it as a relation permanent as their own lives; its dura- tion not depending upon the whim or caprice of either, and only to be dissolved when the improper conduct of one of the parties (the other discharging the duties with fidelity as far as practicable under the circumstances), shall render the 1 2 Kent Com. 102, [ 262 ] CHAP. XVI.] HISTORY AND POLICY OF DIVORCE Laws. § 285 connection wholly intolerable, or inconsistent with the hap- piness or safety of the other.” 1 § 284. Judge Swift has well observed: “ The rendering of the contract of marriage indissoluble is running into the oppo- site extreme from that of permitting divorces at the pleasure of the parties. There are many persons, who, on the idea that the marriage contract cannot be vacated for any miscon- duct, will not behave with the propriety they would if the continuance of the contract were dependent on their exertions to render themselves agreeable to the persons with whom they are connected. It is a great hardship, that a person who has been unfortunate in forming a matrimonial connec- tion, must be for ever precluded from any possibility of extri- cating himself from such a misfortune, and be shut out from enjoying the best pleasures of life. This consideration, in- stead of adding to the happiness of the connection, must frighten persons from entering into it. It is therefore the best policy to admit a dissolution of the contract when it is evi- dent, that the parties cannot derive from it the benefits for which it was instituted; and when, instead of being a source of the highest pleasure and most enduring felicity, it becomes the source of the deepest woe and misery.” ? § 285. The true principle of legislation therefore, indefinite indeed, yet leading practically to some definite results, seems to be, that any conduct which renders cohabitation impracti- cable, and consequently justifies a separation, should be made sufficient cause to dissolve the marriage. This would leave no scope for divorces from bed and board, and it should leave none2 Legislation can never destroy the sexual passion, though, aided by religious and moral teaching, it may, some- what direct the course of its manifestations. Hence that * Simpson, J., in Griffin v. Griffin, 8 B. Monr. 120. See also Whitting- ton v. Whittington, 2 Dev. & Bat. 64. 21 Swift’s System, 191. 5 Ante, § 277, 278. [263] § 285 GENERAL VIEW OF DIVORCE. [Book Iv. legislation which does most to promote actual matrimony, does also most for the morals of the community; because “honest liberty is the greatest foe to dishonest license.” When parties are married in law, yet not in fact, and there- fore are forbidden to enter into real marriages, they will be liable, unless they are better — not worse — than the commu- nity generally, to commit breaches of the rules of morality, either by promiscuous sexual indulgence, or by forming alliances in the similitude of matrimonial, from which a spu- rious issue may spring. Indeed it is well known, that, in England, where divorces from the bond of matrimony have been till lately obtainable only on application to Parliament, in rare instances, and at an enormous expense, rendering them a luxury quite beyond the reach of the mass of the people, sec- ond marriages without divorce, and adulteries, and the birth of illegitimate children, are of every-day occurrence; while the crime of polygamy is winked at, though a felony on the statute-book. Laws punishing adultery, except as an eccle- siastical offence, are there -unknown;! and they are so gen- erally in those American States in which divorces are not allowed, or allowed but for a single cause. Perhaps this point cannot better be illustrated than by referring to South Carolina, the only State in the Union in which no divorce, legislative or judicial, has ever, for any cause, been granted. Not only is adultery not indictable there, but the legislature has found it necessary to regulate, by statute, how large a proportion a married man may give of his property to his concubine; and this proportion he may bestow even as the price of future immorality. The truth is,— and experience and reason alike show it, — that either divorces or illicit connec- 1 Anciently in England (and it would seem that then the marriage could be dissolved for adultery, perhaps also other offences), adultery might be inquired into in tourns and leets, and punished by fine and imprisonment. Shelford Mar. & Div. 386; 3 Inst. 206; Ayl. Parer. 52. ® 2 Post, § 288. ® See Denton v. English, 3 Brev. 147; Canady v. George, 6 Rich. Eq. 103. [264 ] CHAP. XVI.] HISTORY AND POLICY OF DIVORCE LAWS. § 286 tions will be practically allowed, and the choice for the legis- lature lies between the two. This is an evil indeed, but the remedy for it is in the cure of the mistakes and sin whence it flows, not in the refusal of redress, to innocent per- sons, for wrongs suffered. § 285 a. The evils resulting from divorces from bed and board are too numerous to be dwelt upon separately. What is mentioned in the last section is but a specimen of all. The simple statement of the law itself is sufficient to satisfy any mind, not already perverted by false notions, instilled into it in its hours of freedom from thought, that this law can be only evil in its influence, and evil continually. A man and woman, one of whom has conducted ill and the other well in the matrimonial relation, are left by this divorce under all the burdens of marriage, yet forbidden to marry; and only per- mitted, if both choose, to come together, and form anew the relation of hate, already proved to be without the continuing element of love. And why is the innocent party thus bur- dened? Because somebody thinks, but let us not under- take to give reasons for what has no reason. If marriage is good for one innocent person, surely it is good for another. If marriage has a charm to hold back from vice one mind inclined to err, surely the interests of the community and of private morals alike demand, that every willing and erring person be brought under this charm. And if there are reasons of a physical, of a moral, of a mental nature, existing in the particular physical and mental constitutions of particular per- sons, why the well being of those individuals can be secured only in marriage, let us still have a uniform rule, and deny matriage either to all of those persons or to none. No man in his sober senses can say, that marriage is not denied to the person who is lawfully, without his fault,- separated, but ‘ not divorced, from a former matrimonial partner. § 286. What are the specific causes, which, within the fore- going principles, should be made ground of divorce, may be a question, to some extent, of difficulty. Clearly, adultery ; 23 [ 265 } § 287 GENERAL VIEW OF DIVORCE. [Book Iv. desertion, which practically breaks up the relation, and is by many considered to be a greater offence against the marriage than even adultery ;1 extreme cruelty, which renders the co- habitation physically unsafe; perpetual, perhaps temporary, imprisonment for crime; confirmed drunkenness, habitual and beastly, — are completely destructive of the ends of mar- riage; and so they should severally be made causes for dis- solving the relation. Beyond this line, we come to ground uncertain and shadowy. There are smothered hatred, love turned to the reverse, jealousies which no reason can allay, an undefinable jarring of natures coming into collision, and other purely mental causes, which render the marriage bur- densome, and destroy its higher and holier purposes. But these things are of a subtle nature, and human tribunals can- not deal with them well; while the judgment of the present age has been wisely pronounced against allowing parties to divorce themselves at pleasure, since the public and the chil- dren have interests in every marriage, as well as the parties, and since this restraint is necessary to protect the weaker party. § 287. The policy thus recommended, being substantially what is pursued in the greater part of the States of this Union, is in marked contrast to the views of Milton, and others of the same school. They contend for the right of married per- sons to be their own sole judges of the causes for which divorce should be allowed them; and Milton would put the power, from which there should be no appeal, into the hands of the husband alone, as in the days of Abraham and Moses. They contend, moreover, that full effect be given to those im- ponderable mental causes, which, however just of themselves, cannot practically prevail, because no human scale can weigh them. There is indeed much force and sincerity? in the 1 Brower de Jure Connub. 2, 18, 12; Boehmer 4, 19, 30; 1 Fras. Dom. Rel. 677. * It has been most unjustly attempted to weaken the force of Milton’s rea- soning, by the suggestion, that he was pleading his owa cause. The fact is, [ 266 ] CHAP. XVI] HISTORY AND POLICY OF DIVORCE Laws. § 288 argument in favor of this view; but modern legislators will pause long before adopting it, They will at least demand, that, before any divorce is granted, some inquiry be insti- tuted to determine, whether the interests of the public, and of other individuals than the parties themselves, especially of children, will be promoted or prejudiced, by the dissolution of a union which the highest policy requires, as a general rule, to be perpetual. § 288. Deriving, as we do, all our common law of divorce originally from Roman ecclesiastics, who held to the indisso- lubility of marriage as a point of religious belief, it is not strange that much of our legal literature upon this subject has the hue which such a belief imparts. Our judges and law- yers have frequently, with little consideration, lavished praise on that legislative policy which has withheld all adequate redress for matrimonial wrongs. Thus, as before mentioned,! South Carolina has steadily refused, from the first, either to grant a single legislative divorce, or to vest the authority in her courts;? and from the bench of the Supreme Court of Georgia comes the following laudation: “In South Carolina, to her unfading honor, a divorce has not been granted since the Revolution.” 3 Yet even the legal reports of South Caro- lina bear witness, that there, as in every other State or coun- that, though his attention might have been at first directed to the subject by his own case, yet his argument is a singular instance of self-sacrifice to what he deemed, it seems to me erroneously, to be the demands of truth. His wife deserted him; and it would appear, that he could easily have persuaded the English Church and Parliament to adopt desertion as a ground of divorce. See ante, § 278. But, in his writings on the subject, he says scarcely any thing of this cause; while he labors to persuade his readers of other doctrines, which he no doubt foresaw would not be incorporated into the legislation of the country in time to subserve his personal ends, whatever hope he might have indulged of their ultimate prevalence. 1 Ante, § 285. 2 Hull v. Hull, 2 Strob. Eq. 174; Verginer v. Kirk, 2 Des. 640, note; Mattison v. Mattison, 1 Strob. Eq. 387, 388. 3 Head v. Head, 2 Kelly, 191, Nisbet, J. [ 267 ] § 288 a GENERAL VIEW OF DIVORCE. [Book Iv. try, occasion exists for the exercise of this remedy. For example, a man took his negro slave-woman to his bed and table, and compelled the unoffending wife to receive the crumbs after her, and all manner of abuse besides;! but we are told, that, with “ unfading honor,” the powers of the State refuse to sever this living body from this putrid carcass. If the refusal had been to permit a creditor to collect a sum of money equal to the marriage fee, we should have had no such praise of the policy. § 288 a. There is a class of opinion on this subject, deserv- ing of great respect, while yet the opinion is greatly errone- ous. Many persons suppose, that, if divorce is freely allowed, men and women will rush heedlessly into marriage, and be heedless of their conduct afterward. And they cite what they deem the example of France, and the results of the example, where at one time the liberty of divorce was greatly extended. Enormous numbers of couples were made free of the matri- monial tie; and there the history recited by these objectors ends. Why do not these objectors advocate the establish- ment of monarchy in the United States, on the ground, that, in France, the experiment of self-government has not worked well? But why were so many divorces sought? Did the corruption begin with the divorce law? If the granting of. these divorces was itself corruption, whence came-the prompt- ing? The truth is, France had been under the Roman Catholic rule of indissolubility for so many centuries, that social and matrimonial impurity had swollen te such a degree as at last to burst even the bands of the church, and overflow the country. 1 Jelineau v. Jelineau, 2 Des. 45. The judges of South Carolina seem not to claim, for marriages under the South Carolina law, greater purity and happiness than prevail where divorce is allowed. ‘ All marriages, almost,” remarks Thompson, J., in Devall v. Devall, 4 Des. 79, “are entered into on one of two considerations; that is, love, or interest; and the court is induced to believe the latter is the foundation of most of them.” Would a judge in Con-’ necticut, for example, where divorces are freely granted (see ante, § 275, note), say the same of marriages in that State ? [ 268 ] CHAP. XVI] HISTORY AND POLICY OF DIVORCE Laws. § 288¢ § 288 b. Those who suppose marriage to consist in a man and woman living in the same house, and lodging in the same room; suppose the very essence of marriage to consist in keeping the same parties together, under all circumstances, of sunshine or of storm; suppose the tender affections, the in- ward solace of mind, the regard for offspring which watches wisely over it, the restraining and softening influences of home and its loves and its joys, to be no part of marriage, but to be things capable of wandering here and there beyond the dwelling inhabited by those who are called husband and wife, while yet the marriage relation is doing what it ought to do of blessing to the community and the parents and the children, in the midst of hate, of disquiet, of weeping tears of blood,— are permitted, for all the author cares, to turn up their prude faces, and talk of corruption to those who would see the laws administer to something else than this when they administer to marriage; but never will their iron rule be allowed to restrain the uprising of the better instincts of the people of this country, who, slowly, yet surely ; unwisely sometimes, yet true to the end; are bringing marriage, both in‘ law and practice, into the condition which the Maker in- tended. § 288¢. The idea, that, according to any just view, when- ever parties have come together in marriage, they have there- by placed themselves so far in each other’s power for life as to be incapable of freeing themselves by any act of the law, though the ends of their union are all frustrated, though one of them is unwilling to discharge the duties undertaken, though every hope of its ministering to the well-being of the parties is obliterated, — surely can have place only in a perverted under- standing. ‘True indeed is it, that this union is intended to be for life, that only in the most extreme circumstances should it be dissolved; but the very fact of its sacred nature, too sacred to be made matter of temporary arrangement, is the strong reason, why, when it ceases to have any thing worthy to be called sacred about it, when an erring one has trampled 23 * [ 269 ] § 290 GENERAL VIEW OF DIVORCE. [BOooK Iv. it in the mud of his corruption by his polluted feet, the law should cease to call it sacred, and pronounce it profaned and dissolved. The idea of promoting in the community a rev- erence for marriage, by holding that to be marriage from which all disgusting things do flow ; by receiving as too sacred to be molested the relation which breeds corruption in the souls of the parties, adulteries in the community, unnatural develop- ments of wickedness in the children, sorrow in the hearts of multitudes made by God to be happy, blasphemies in the temple of matrimonial purity ; is too preposterous, too absurd, to be reasoned against; too monstrous to be credited, as a fact of human legislation, did not testimony not to be reject- ed prove its existence. § 289. But while men may naturally differ concerning the true policy of legislation on this subject, plainly the courts, in administering the law, should construe statutes in the spirit which prompted their enactment, whatever private opinions the judges may hold of their expediency! And in good faith have the American tribunals generally done this. Occasion- ally, however, a statute has been frittered away, through the device of an overwrought construction, by judges who have seemed to regard it as a part of their calling to cast every pos- sible obstruction in the path of parties seeking this remedy. But while the attempt thus to correct the errors of legislation is a clear assumption of an office better performed by the legislators themselves, it is incumbent upon the judiciary to guard, in another way, the interests of the public. The courts should see, that the laws are not evaded, and that divorces are granted only to parties entitled to them. \ § 290. The foregoing views do not exhaust the subject, considered either historically or theoretically and practically. They are as extended, however, as it seems wise to make them in a treatise of this kind. Ordinarily, a treatise of the 1 See 1 Bishop Crim. Law, § 143. [ 270 ] CHAP. XVI.] HISTORY AND POLICY OF DIVORCE LAWS. § 290 law as actually administered does not enter at all into a con- sideration of legislative policy ; but, in the administration of our divorce Jaws, an understanding of their policy is impor- tant. Especially is it so, when courts are called upon, as in some States they are, to grant divorces by the exercise of the discretion pointed out in a subsequent chapter. 1 Post, § 542 et seq. [271] § 292 GENERAL VIEW OF DIVORCE. [Boox Iv. CHAPTER XVII. LEADING DOCTRINES CONCERNING DIVORCE. Sect. 291. Introduction. 292-296. The different Kinds of Divorce explained. 297-813. The Rule of consulting the Public Interest. "814, The Issues in the Divorce Suit. 815-826. The Evidence of Marriage in this Suit. 827-330. Concerning the Proofs and Witnesses generally. § 291. Turnine now from the contemplation of those prin- ciples which should guide the legislative policy, let us see what is established by judicial rule. The present chapter, de- voted to some of the leading doctrines of divorce, will be divided as follows: I. The different Kinds of Divorce ex- plained; II The Rule of consulting the Public Interest; II. The Issues in the Divorce Suit; IV. The Evidence of Mar- riage in this Suit; V. Concerning the Proofs and Witnesses generally. I. The different Kinds of Divorce explained. § 292. Divorce is the dissolution or partial suspension, by law, of the marriage relation; the dissolution being termed di- vorce from the bond of matrimony, or, in the Latin form of the expression, @ vinculo matrimonti ; the suspension, divorce from bed and board, a mensd et thoro. ‘The former divorce puts an end to the marriage; the latter, leaves it in full force The term divorce is sometimes also applied to a sentence of nullity, as discussed in the earlier part of this work. The propriety of so applying it, where the marriage is void, is questionable; 1 Clark v. Clark, 6 Watts & §. 85; 2 Burn Ec. Law, Phillim. ed. 501 /. [272] CHAP. XVII.] LEADING DOCTRINES CONCERNING Divorce. § 293 but properly it designates the annulling of a voidable mar- riage; the reason of the distinction being, that the latter has a legal existence until sentence passed, the former not. We therefore speak of impotence as a ground of divorce ; and Blackstone says, the divorce a vinculo matrimonit must be for some of the canonical causes or impediments.! But with equal propriety we use the expression, sentence, or decree, of nullity to designate the legal avoiding of a voidable mar- riage ; and it seems more significant and less liable to be mis- understood than the other, and-better to accord with modern usage.2 So a divorce a mensé et thoro is sometimes called a separation,® and the proceeding to obtain it, a suit for separa- tion; leaving the term divorce to be applied only to the disso- lution of the marriage for causes which arise subsequently to its celebration. In England, a change of terms has just been effected by Stat. 20 & 21 Vict. c. 85, §'7, which provides, that “no decree shall hereafter be made for a divorce a mensé et thoro; but, in all cases in which a decree for a divorce a mensé et thoro might now be pronounced, the court may pro- nounce a decree for a Judicial Separation, which shall have the same force and the same consequences as a divorce a mensé et thoro now has.” § 293. These divorces and separations, though granted sometimes by legislative action, as will be shown hereafter in the present volume,’ are usually in this country, and indeed everywhere, matter of judicial investigation and sentence. As such, we are now considering them. \ - 113BI. Com. 440. It is said, however, that “the civil and canonical dis- abilities, which render the marriage contract either void or voidable, are grounds of separation for nullity of marriage, but not, correctly speaking, for a divorce.” Shelford Mar. & Div. 365; Godol. Ab. 500. ? See Rogers Ec. Law, art. Divorce; Wadd. Dig. ib.; Shelford Mar. & Div. 182, 365; 1 Fras. Dom. Rel. 709. 5 See the New York Reports generally. This is also the modern Scotch term; and the phrase “divorce a mens@ et thoro” has entirely fallen into disuse in Scotland. 1 Fras. Dom. Rel. 645, note. * Post, § 767 et seq. [273] | § 295 GENERAL VIEW OF DIVORCE. [Book Iv. § 294, In Pennsylvania and some other of the States, the divorce for certain of the causes may be either from bed and board, or from the bond of matrimony, at the election of the party applying for it1 In one or two other States, the former. species of divorce is in some circumstances preliminary to the latter.2. In North Carolina, the divorce for certain of the causes is to be either from bed and board, or from the bond of matrimony, at the discretion of the court. This discre- tion is construed to be, not an arbitrary, but a sound and judicial one, founded on some reasonable and fixed principles. In one case it was intimated, as the rule of distinction, that, “although a divorce a mensé et thoro may be allowed in some instances to a person who is not entirely impeccable, who may not have been exemplary in all the attentions and stipulated offices assumed in contracting this relation, yet the policy of the law, the interest of the offspring, the tranquillity and happiness of families, in general, forbid the dissolution of marriage at the suit of a person to whom default in any of the essential duties of married life can be fairly imputed.” * Generally in the United States the statute determines, whether the divorce shall be from bed and board or from the bond of matrimony. § 295. In the ecclesiastical law, the divorce from bed and board may, it is said, be either for a time or without limita- tion of time;° but, however this may be, the established form of sentence separates the parties “until they shall be recon- ciled to each other.”® Occasionally in the United States, a 1 Smith v. Smith, 3 8. & R. 248; Light v. Light, 1 Watts, 263; Coverdill v. Coverdill, 3 Harring. Del. 13; Ledoux v. Her Husband, 10 La. Ann. 663. ® Savoie v. Ignogoso, 7 La. 281; Ledoux v. Her Husband, supra. ® Collier v. Collier, 1 Dev. Eq. 352; Whittington v. Whittington, 2 Dev. & Bat. 64; Moss v. Moss, 2 Ired. 55. * Whittington v. Whittington, supra. 8. Pp. Moss v. Moss, supra. * 2 Burn Ec. Law, Phillim. ed. 501 1.; Ayl. Parer. 225; Barrere v. Bar- rere, 4 Johns. Ch. 187, ® Poynter Mar. & Div. 182, note; Coote, Ec. Pract. 347; Conset, 279; Oughton, tit. 215. [274] CHAP. XVII.] LEADING DOCTRINES CONCERNING DIvorcE. § 297 statute has expressly authorized the courts to make the sep- aration perpetual, or for a limited period, in their discretion. Chancellor Kent, construing such a statute in New York, decided, on a review of the general policy and reason of the law, that, as a general rule, the decree should be for a per- petual separation, with a proviso allowing the parties at any time thereafter, by their mutually free and voluntary act, to apply for leave to be discharged from the decree.!| But we shall discuss the effect of a sentence of separation in subse- quent pages; and we shall there see, that a reconciliation, though out of court, does de facto put an end to this species of divorce? : § 296. Though divorces from bed and board and from the bond of matrimony are different in their effects, the legal prin- ciples governing the proceeding down to the time of pro- nouncing the decree or sentence of divorce, are usually the same: so we may conveniently discuss. them together, till we come to the point of divergence. The suit for nullity, also, is included in this proposition? IL The Rule of consulting the Public Interest. § 297. Sufficient has been said, in the foregoing pages, of the interest which the public has in marriage and in its disso- lution. Growing out of this interest, we have the doctrine, running through all matrimonial suits, and bringing into sub- serviency all other law on the subject, that the proceeding, though upon its face a controversy between the parties of re- cord only, is, in fact, a triangular suit, sui generis, the govern- 1 Barrere v. Barrere, 4 Johns. Ch. 187. See Bedell v. Bedell, 1 Johns. Ch. 604; Clutch v. Clutch, Saxton, 474 (the New Jersey statute authorizing either form); Graecen v. Graecen, 1 Green Ch. 459; Coles v. Coles, 2 Md. Ch. 341. * Post, § 679. ® Ante, § 262, 267. [275] § 297 GENERAL VIEW OF DIVORCE. [BOOK Iv. ment, or public, occupying the position of a third party, without counsel, it being the duty of the court to protect its interests. Indeed the States of Kentucky? and Indiana® do provide counsel for this third party; since a statute there makes it the duty of the public prosecuting officer to oppose all suits for divorce. So in Scotland, the procurator-fiscal looks after the interests of the public in every divorce cause, though both of the parties are likewise represented by coun- sel4 The reason of this peculiarity, we have just said, is, that society, or the public, or the government, as we may choose to express it, has, in fact, an interest in every mar- riage So are the children, born or en ventre sa mere, pecu- liarly interested in the marriage ; and, as they cannot protect themselves, the government, represented for this purpose by the judge, is bound to protect them. Particularly is this so in suits for nullity, which have the effect, when successful, to make or declare, as the case may be, the children illegiti- 1 Whittington v. Whittington, 2 Dev. & Bat. 64. And see Berthelemy v. Johnson, 3 B. Monr. 90; Opinion of the Supreme Judicial Court, 16 Maine, 481. ‘Jn this State,” says the editor of McCord’s South Carolina Statutes at Large, vol. 2, p. 733, “ marriage is a civil contract, of mutual partnership and personal cohabitation during life, under the provisions of laws passed on this subject. The parties are the man, the woman, and the State. The State is interested, her interest being that the contract shall be fulfilled ben- eficially to the progeny, of whom the future citizens are to be composed.” For other definitions of marriages, see ante, § 29 et seq. 2 Stat. of Jan. 31, 1809, § 5. 1 Morehead & Brown’s Dig. 123. ® Revised Statutes of 1843, c. 35, § 69; Green v. Green, 7 Ind. 113. * Ferg. 363, 373, 3 Eng. He. 482, 488; Tovey v. Lindsay, 1 Dow, 117, 134, 139. : 5 Ante, § 282; Campbell’s case, 2 Bland, 209, 235; Gould v. Gould, 2 Aikens, 180. “ Marriage,” says Lord Stowell, ‘is a contract formed with a view, not only to the benefit of the parties themselves, but to the benefit of third parties; to the benefit of their common offspring, and to the moral order of civil society. There are undoubtedly cases for which a separation is provided ; but it is lawfully decreed by public authority, and for reasons which the public wisdom approves.” Evans v. Evans, 1 Hag. Con. 35, 4 Eng. Ec. 310, 8349. See also McCord’s South Carolina Statutes at Large, vol. 2, p. 733 ut supra. [276] CHAP. XVII] LEADING DOCTRINES CONCERNING Divorce. §299 mate? Establishing, therefore, the justice of an application, not merely as between the parties of record, but as between them and the community, including those individuals who are specially interested yet not before the court, is what is fre- quently termed, in these cases, satisfying the conscience of the court. § 298. These considerations will assist us in answering the question, frequently discussed, whether the suit for divorce is a civil or a criminal proceeding. In England, the suit for divorce a mensé et thoro was always civil in form ;? but the ecclesiastical courts would pronounce a sentence of nullity, not only when applied to in the civil suit for that purpose, but likewise in the criminal prosecution, as forincest.? In the latter instance, it was not essential, but customary, to specify the matter of nullity in the citation* § 299. In the United States, suits for divorce, nullity, and separation are always in the civil form. Still a learned judge has said, that “regulations on the subject of marriage and divorce are rather parts of the criminal than of the civil code ; and apply not so much to the contract between the individu- als, as to the personal relations. resulting from it, to the rela- tive duties of the parties, and to their standing and conduct in the society of which they are members; and these are reg-. ulated with a principal view to the public order and economy,, the promotion of good morals, and the happiness of the com-- munity.”> On the other hand it has been contended, that * Wright v. Elwood, 1 Curt. Ec. 662, 666. And see Cross v. Cross, 3° Paige, 139; ante, § 267. 2 Ayl. Parer. 44. * Burgess v. Burgess, 1 Hag. Con. 384; ante, § 51; Shelford Mar. & Div.. 175-184. * Chick v. Ramsdale, 1 Curt. Ec. 34; Blackmore v. Brider, 2 Phillim. 359; Cleaver v. Woodbridge, cited Ib. 362. 5 Sewall, J., in Barber v. Root, 10 Mass. 260, 265; Dorsey v. Dorsey, 7 Watts, 349; Garrat v. Garrat, 4 Yeates, 244; Dickinson v. Dickinson, 3, Murph. 327. 24 [277] § 300 GENERAL VIEW OF DIVORCE. [Boox Iv. this remedy is purely a civil one; and a high authority has well observed, that a divorce suit is a private prosecution, under the control of the party aggrieved, who may avail him- self of it, or bar himself by his own act.1 § 300. Now it is clear, that a suit for divorce, even where alimony is sought, is not an action upon the contract of mar- riage. It is rather an action sounding in tort, for the redress of a private wrong” Sometimes it is followed by a conse- quence partly penal; as where the guilty one is prohibited by law from entering into a second marriage, during the life of the innocent one;* but this does not necessarily make the proceeding criminal. Nor has any one ever supposed, that a sentence of divorce for adultery would bar an indictment for the same adultery, in States where this offence is punishable criminally, as perhaps it must be held to do if the divorce suit is strictly criminal. Neither is it any defence to a pro- ceeding for divorce, that the facts charged are punishable as crime We may therefore regard the divorce suit as a civil one, between three distinct parties,— the government, the plaintiff of record, the defendant of record. "What the gov- ernment does is, first, to protect the rights of persons not before the court, but liable to be affected by the decree or sentence ; secondly, to guard the interest of the public as to its morals; and, thirdly and chiefly, to see that the status of its subjects, who are the parties of record, and sometimes their children, is properly determined or established. But the gov- ernment has no interest, which it desires to enforce, to compel the plaintiff of record either to bring the suit, or to prosecute it when brought; wherefore the plaintiff may discontinue it, 1 Chancellor Kent, 2 Kent Com. 100; Clark v, Clark, 10 N. H. 380, 389 ; Humphrey v. Humphrey, 7 Conn. 116; Delliber v. Delliber, 9 Conn. 233; Westbrook v. Westbrook, 2 Greene, Iowa, 598. 2 See ante, § 38. * Dickson v. Dickson, 1 Yerg. 110. * Clark v. Clark, 10 N. H. 380,390; Woart v. Winnick, 3 N. H. 473, 481. 6 Nash v. Nash, 1 Hag. €on. 140, 4 Eng. Ec. 357. [278 ] CHAP. XVII.] LEADING DOCTRINES CONCERNING Divorce. § 301 or bar his right, at pleasure! It is a civil, triangular action of tort, in its whole character sui generis? § 301. From these principles it follows, that no decree of nullity, or of divorce from bed and board, or from the bond of matrimony, can be entered by the court upon the mere consent or agreement of the parties of record; because they cannot bind the public. There must be a complaint in due form, for a cause authorized by law, supported by due proof. A default does not, as in other suits, supersede the necessity of proof, or lighten the burden of the plaintiff in establishing his allegations The court will not even sustain an agree- ment concerning the incidental matter of alimony, made by the parties in the course of the proceedings, until it is found, on inquiry, to be fair and equitable* Yet in respect to all 1 A party however cannot bar his own right in a way to conflict with public policy. Therefore, as separations by mutual agreement are against public policy, such a separation cannot cut off the privilege of either party to maintain, in England, a suit for the restitution of conjugal rights; even though the articles of separation contain an express covenant not to insti- tute this proceeding. Westmeath ». Westmeath, 2 Hag. Ec. Supp. 1, 115, 4 Eng. Ec. 238, 291; Mortimer v. Mortimer, 2 Hag. Con. 310, 4 Eng. Ec. 548, 547. 2 Mr. Fraser, after reviewing various opinions upon the question, whether the suit for divorce is civil or criminal, says: “The proper view to take of the objections to the right of divorce seems to have been held to be, to re- gard them not as arising from the will or consent of the parties, but as form- ing part of the public law of the country, established for the general good of the community ; and, therefore, not subject to the compacts, express or implied, which are entered into by individuals.” 1 Fras. Dom. Rel. 665. And see Ferg. note (F), p. 381, 3 Eng. Ec. 493; Ferg. p. 305, 306, 317, 3 Eng. Ec. 448, 455; Lord Brougham, in Warrender v. Warrender, 2 Cl. & F. 488, 537; Lord Stowell, in Evans v. Evans, 1 Hag. Con. 35, note, 4 Eng. Ec. 310, 338. * Palmer v. Palmer, 1 Paige, 276 ; Van Veghten v. Van Veghten, 4 Johns. Ch. 501; Williamson v. Williamson, 1 Johns. Ch. 488; Graves v. Graves, 2 Paige, 62; Barry v. Barry, 1 Hopkins, 118 ; Mansfield v. Mansfield; Wright, 284; Smith v. Smith, Wright, 643; Hanks v. Hanks, 3 Edw. Ch. 469 ; Rob- inson v. Robinson, 1 Barb. 27; Welch v. Welch, 16 Ark. 527. * Daggett v. Daggett, 5 Paige, 509. And see Wallingsford v. Wallings- ford, 6 Har. & J. 485; Threewits v. Threewits, 4 Des. 560. [279] § 303 GENERAL VIEW OF DIVORCE. [Boox Iv. those questions in which the public has no interest, arising in the course of a divorce suit, the parties may conduct their cause as they would any other. Thus, they may, by agree- ment, discontinue the suit.!. And where the wife is author- ized by statute to maintain the suit in her own name as a feme sole, she can compromise or settle it, even against the objection of her solicitor who has not received his fees. But the court will look into such a case so far as to see that she has not been overreached or imposed upon by her hus- band.? § 302. But though a defendant of record cannot by his act: bind the public, yet his default, acknowledgment, or consent for judgment does settle the cause as against him, so that he cannot complain of any disposition the court may lawfully make of it afterward. As between him and the plaintiff, the charges are to be taken as true. Thus the defendant will not be entitled to costs, on the dismissal of the suit under ‘such circumstances. Neither, being the wife, can she have alimony pendente lite. Yet it was held, that, after a bill — the proceeding being in equity — was taken for confessed, and referred to a master for proofs, the defendant wife might appear before the master, and cross-examine the plaintiff’s witnesses and produce witnesses of her own, at her own expense, not otherwise.2 The principle probably is, that the court, in satisfying its conscience, and protecting the rights of the public, will receive light from any source, only not to the undue burdening of the plaintiff. § 303. Obviously, also, the public cannot be interested to 1 Ante, § 300. * Kirby v. Kirby, 1 Paige, 565. Under the present law of New York, the issue joined in a divorce suit may, by agreement of the parties and order of the court, be referred to a referee. Anonymous, 5 How. N. Y. Pract. 306. ® Perry v. Perry, 2 Barb. Ch. 285. And see Graves v. Graves, 2 Paige, 62; post, § 314. [ 280 ] CHAP. XVII] LEADING DOCTRINES CONCERNING DIvorcE. § 304 interpose technical objections ; and, being always present in court by the judge, it cannot be taken by surprise for want of notice. Therefore all questions preliminary to the hearing, such as relate to the service of process when the defendant has actual notice and appears, waiver of service, amend- ments,! and other matters of this sort, may be governed, as in other cases, by ordinary judicial rules, calculated to sub- serve justice between the parties. A different view from this appears to have been entertained in one case in Ohio;? but it is so adverse both to principle and general authority, that we can hardly suppose it to be law even there. § 304. A singular question arose before the Supreme Court of Errors of Connecticut, in the year 1810. It came up in a qui tam action, wherein the wife, who had obtained a divorce from the bond of matrimony, proceeded for the recovery of a statutory penalty against a party to whom the divorced hus- band had conveyed, as she alleged, certain property in fraud of her rights as the husband’s creditor. And it was held by a majority of the court, Mitchell, C. J., and Baldwin and Reeve, Judges, dissenting, that, where the husband and wife, having determined to separate, and dissolve as far as in them lay the obligations of their marriage, mutually covenanted, for him to secure a separate maintenance to her through the in- tervention of a trustee; for her to be no further chargeable to him; and for him, having committed adultery, and having had the venereal disease, to furnish money and testimony to procure a divorce, she instituting the necessary proceedings, to be under his direction, — the covenant was fraudulent and void, as tending to mislead the court, and interfere with the administration of justice. ‘The judges concurred, that, if it had been agreed to produce false testimony, or to impose upon the court, the agreement would be a fraud on the law, 1 Hackney v. Hackney, 9 Humph. 450; Anderson v. Anderson, 4 Greenl. 100; Fishli v. Fishli, 2 Litt. 337; Tourtelot v. Tourtelot, 4 Mass. 506. 2 Smith v. Smith, Wright, 643. See, as adverse to this, Feigley v. Feigley, 7 Md. 537. a4* [281]: § 805 GENERAL VIEW OF DIVORCE. [BOOK IV. and therefore void. But the dissenting judges contended, that no fraud appeared in the facts of this case; that, it being the duty of the husband to furnish his wife, who had no money, with the means to procure a divorce, and afterward to pay her alimony, there was no fraud in his voluntarily undertaking what he was already under legal obligation to do; and that, the object of the provision placing the contro] of the divorce suit in his hands having merely been, as shown in evidence, to prevent the fact of his having had the venereal disease ap- pearing, there was no imposition upon the court in omitting this part of the evidence, other sufficient proof existing. It seemed not to be denied, that a suit for divorce got up solely by the defendant, under his own control and for his own ben- efit, would, on such a state of facts appearing, be dismissed. § 305. For the same reason which prevents a decree of di- vorce or nullity of marriage being rendered on the agreement of parties tin court, or on the default of the defendant,? and growing out of the fact that the public is a party also in these suits,?> we have the further doctrine, that no decree or sentence can be founded upon the sole evidence of the confessions of the defendant out of court. This is the rule of the ancient as well as the modern common law. For, in Collet’s case, it being suggested to the Court of King’s Bench that persons who had lived together in wedlock sixteen years were pro- .ceeding in the Spiritual Court collusively, on the false allega- tion of incest, to dissolve their marriage and bastardize their -children, —“ they both appear and confess the matter, upon ? Goodwin v. Goodwin, 4 Day, 348. As to the effect of an agreement not to bring a suit to avoid a voidable marriage, see Wistby v. Wistby, 1 Connor & Lawson, 537; where the Chancellor, after the death of one of the married parties, refused to set aside such an agreement, which had been entered into ‘twenty years before, and acted upon subsequently. As to an agreement by ‘the defendant not to resist the divorce suit, see Viscr v. Bertrand, 14 Ark. 267. As to an agreement by the plane to discontinue such suit, see Ster- ling v. Sterling, 12 Ga. 201. 2 Ante, § 301. 3 Ante, § 297. [ 282 J CHAP. XVII.] LEADING DOCTRINES CONCERNING DIVORCE. § 306 which a sentence of divorce was to pass,” — it was held that prohibition would lie.t § 306. This is also a rule of the canon law, founded on a decretal epistle of Pope Celestine III, and expressly renewed by the canons of 1597. “And how great need,” says Gib- son, “there was of such a prohibition, will appear to any one who shall consult the ancient acts of courts before those times ; and see there how common it was to pronounce separations upon the sole confessions of the parties, and how numerous the separations were, so long as that continued to be the rule”? At present, the matter in England rests upon the 105th Canon of 1603, in the following words: “ Forasmuch as matrimonial causes have been reckoned and reputed among the weightiest, and therefore require the greatest caution when they come to be handled and debated in judgment, especially in causes wherein matrimony, having been in the church duly solemnized, is required upon any suggestion or pretext what- soever to be dissolved or annulled, we do strictly charge and enjoin, that, in all proceedings in divorce® and nullities of matrimony, good circumspection and advice be used, and that the truth may (as far as possible) be sifted out of the deposi- tions of witnesses, and other lawful proofs and evictions, and that credit be not given to the sole confession of the parties themselves, however taken upon oath, either within or without the court.”* This canon is in spirit and effect, probably in letter, common law in this country, our courts having uni- formly proceeded upon its principles.® Some of the States, 1 Collet’s case, 2 Mod. 314. ‘ 2 Gibs. Cod. 445; Cobbe v. Garston, Milward, 529, 537. ® This applies as well to separations a mensé et thoro as to divorces a vin- culo. Noverre v. Noverre, 1 Robertson, 428, 436; Savoie v. Ignogoso, 7 La. 281; Sawyer v. Sawyer, Walk. Mich. 48. And see the observations of Lord Stowell, in Mortimer v. Mortimer, 2 Hag. Con. 310, 316, 4 Eng. Ec. 543, 546. * Poynter Mar. & Div. 338 ; Gibs. Cod. 445. See ante, § 4. ° Gould v. Gould, 2 Aikens, 180; Washburn v. Washburn, 5 N. H. 195; Baxter v. Baxter, 1 Mass. 346; Betts ». Betts, 1 Johns. Ch. 197; Montgom- [ 283 ] N § 307 GENERAL VIEW OF DIVORCE. [BooK Iv. moreover, have substantially incorporated it into their statute law. Yet in two or three of the States, the legislature has established for the courts a more rigid rule. § 307. Obviously, neither the canon nor the reason of the rule excludes the evidence of the defendant’s confessions being heard. The interest of the community, or government, which we have described as the third party? in matrimonial suits, extends merely to the establishing of the truth, not to the rais- ing of technical objections. But if confessions were alone sufficient, the marriage would be placed at the will of the par- ties, in frustration of the entire policy of the law.4 And, as Dr. Lushington once observed, “no tribunal is to be trusted with the power to determine that which is impossible; name- ly, whether such a confession be genuine or false. Still it is evidence of the highest character; and I well recollect, in the case of Mortimer v. Mortimer, it was strongly relied on by Lord Stowell. There must be other evidence, then; though I am not aware of any case in which the quantum or descrip- ery v. Montgomery, 3 Barb. Ch. 132; Devanbagh v. Devanbagh, 5 Paige, 554; Holland v. Holland, 2 Mass. 154; Clutch v. Clutch, Saxton, 474. 1 Post, § $13. 2 Ante, § 297. ® Ante, § 303. * Holland v. Holland, 2 Mass. 154. * Mortimer v. Mortimer, 2 Hag. Con. 310, 4 Eng. Ec. 543. In Pennsyl- vania, Gibson, C. J., remarked: “It is a rule of policy not to found a sen- tence of divorce on confession alone. Yet when it is full, confidential, rele- vant, free from suspicion of collusion, and corroborated by circumstances, it is ranked with the safest proofs.” -Matchin v. Matchin, 6 Barr, 332. “A species of evidence of the highest kind, provided always that it is accompa- nied with certain requisites, — first, undoubted proof that the admissions were made; second, that the expressions were clear and distinct; and, third, that the admissions were sincere.” Dr. Lushington, in Stone v. Stone, 3 Notes Cas. 278, 286; Betts v. Betts, 1 Johns. Ch. 197; Williams v. Williams, 1 Hag. Con. 299, 4 Eng. Ee. 415,417. See also Lord Brougham, in Creagh’s divorce bill, 32 Legal Observer, 91; Harris v. Harris, 2 Hag. Ec. 376, 409, 4 Eng. Ec. 160,175. But see Hansley v. Hansley, 10 Ired. 506. And see post, § 312. [284] * CHAP. XVII.] LEADING DOCTRINES CONCERNING DIVORCE. § 308 ‘tion, as auxiliary to a confession, has been the subject of dis- cussion.” } § 308. In considering confessions we must see, in the first place, that what is testified to does really amount to a con- fession2 This being determined, then the weight to be given it varies greatly according to the case and circum- stances. In the suit for nullity, where a marriage regularly proved is attempted to be set aside as void from the begin- ning, what the defendant has admitted is received with par- ticular caution;® though, under some circumstances, it is en- titled to much regard, even in this suit Dr. Lushington indeed went so far in a case of nullity, where the alleged defect was the undue publication of banns, as to make the following observations: “I place very little confidence in these subsequent declarations ; and I think a grave doubt may be entertained, whether such subsequent declarations, in a case of this kind, made long after the marriage, are admissi- ble as evidence; because, in these cases, one party or the other might by admissions affect the status of other parties, by reason that the interests of the parties in the cause are not confined to themselves, but extend to their children and to the public. The declaration of the wife may by possi- bility be evidence against the husband, or vice versd; but, where it affects the children, I doubt whether such declara- tions could be received.” 5 ? Noverre v. Noverre, 1 Robertson, 428, 440; Armstrong v. Armstrong, 82 Missis. 279, 288. s 2 Stone v. Stone, 3 Notes Cas. 278, 286, 291; Tucker v. Tucker, 11 Jur. 893, 5 Notes Cas. 458; Harris v. Harris, 2 Hag. Ec. 376, 4 Eng. Ec. 1603 Williams v. Williams, 1 Hag. Con. 299, 4 Eng. Ec. 415. A confession in general terms will apply to all times and places at which the proofs show the offence might have been committed. Burgess v. Burgess, 2 Hag, Con. 223, 227, 4 Eng. Ec. 527, 529. 5 Searle v. Price, 2 Hag. Con. 187, 4 Eng. Ec. 524; Wright v. Elwood, 1 Curt. Ec. 662, 666; Cross v. Cross, 3 Paige, 139; ante, § 267. * Harrison v. Hb iviacn, 4K. F. Moore, 96; porte § 310, note. .* Brealy v. Reed, 2 Curt. Ec. 833, 7 Eng. Ec. 828. And see Cobbe v. Garston, Milward, 529, where it was held by Dr. Radcliff, that, in a suit for [ 285] § 310 GENERAL VIEW OF DIVORCE. [BooK Iv. § 309. The rule regarding confessions is always to be in- terpreted in reference to its reason; which is, as we have seen, to prevent collusion, or prevent what actually happened before its adoption ; namely, the obtaining of divorces where the grounds for them did not in fact exist! Therefore the evidence to be introduced in connection with the evidence of confession may be either, first, such as tends, like confession, to prove the issue; or, secondly, tends to show the absence of collusion. § 310. Whether evidence showing merely the absence of collusion is sufficient in corroboration of the confession, with- out any tending to prove the direct fact in issue ; or whether always there must be some evidence, outside the confession, of the direct fact involved,—is a point not apparently ad- judged in England, though some English cases strongly: im- ply the sufficiency of the former alone.? In the United States, nullity of marriage, the admissions of the defendant are admissible in evi- dence, yet still are entitled to but little weight. See, however, post, § 310, note. 1 Ante, § 306; Tucker v. Tucker, 11 Jur. 893, 5 Notes Cas. 458; Owen v. Owen, 4 Hag. Ec. 261; Tewksbury v. Tewksbury, 4 How. Missis. 109; Sawyer v. Sawyer, Walk. Mich. 48, where it was held that the amount of evidence required to corroborate the confession of the defendant varies with the danger of collusion; Shelford Mar. & Div. 411; ee v. Burgess, 2 Hag. Con. 223, 4 Eng. Eo. 527. ® Harrison v. Harrison, 4 E. F. Moore, 96,103. It seems ee that the corroborating evidence in this case merely showed the sincerity of the con- fession, and the consequent absence of collusion. The suit was for nullity of marriage, on the allegation of the husband’s impotence. The examina- tion of the lady (see 3 Curt. Ec. 16, 7 Eng. Ec. 359, where the case as it stood before the Consistory Court of London is reported) elicited nothing satisfactory; and the ‘ evidence of Mrs. Dolphin,” spoken of in the latter report, is probably what is alluded to in the following passage. In giving judgment in the Court of Privy Council for divorce, confirmatory of the decision of the Consistory Court, and of the Court of Arches, Lord Brough- am said: “It has been insisted by the counsel for the appellant” husband, the original defendant, “that the confession of non-consummation is not sufficient to satisfy the 105th canon, and that there must be some extrinsic proof, and for that purpose proof by inspection is said to be essential. Their lordships give no opinion on this construction of the canon; for, if [ 286 ] CHAP. XVII.] LEADING DOCTRINES CONCERNING DIVORCE. § 310 the former has been expressly held sufficient. Thus where, on a libel for divorce a vinculo, on account of adultery com- mitted by the husband, it was proved that he had been four- teen years out of the commonwealth separated from his wife, and that, in a letter to her, expressive of penitence and desir- ing a reconciliation, he acknowledged himself to have been living with another woman, by whom he had five children ; the court granted her prayer on the strength of the confes- sion alone, since the circumstances proved by other evidence showed no collusion to exist in the case In another case the facts appearing were, that the alleged particeps criminis adminicular proof is requisite, they think the circumstance of the appel- lant’s having taken a legal opinion of the validity of the marriage, which he admits in his answer, coupled with the confession of non-consummation, and the refusal, in the first instance, to undergo inspection, is sufficient extrinsic proof; and, being satisfied that there is no collusion between the parties, they affirm the decree of nullity.” In Noverre v. Noverre, 1 Rob- ertson, 428, the evidence, aside from the defendant wife’s confession, went no further than to show extreme, not indecent, familiarities with the alleged paramour, and ample opportunities. In Tucker v. Tucker, 11 Jur. 893, there were no acts of familiarity proved; but there were the reception of a letter from the alleged paramour to the wife, which letter she had not read, and could not therefore know the contents of; and a meeting, not at all shown to be criminal, between her and him, after she was turned off by her husband ; yet these were held amply sufficient to sustain the confession. See also Grant v. Grant, 2 Curt. Ec. 16, 7 Eng. Ec. 3; Owen v. Owen, 4 Hag. Ec. 261; Deane v. Deane, 12 Jur. 63; Mortimer v. Mortimer, 2 Hag. Con. 310, 4 Eng. Ec. 543. It has been considered important to prove what is commonly termed the identity of the parties, by other evidence than con- fessions. Searle v. Price, 2 Hag. Con. 187. 1 Billings v. Billings, 11 Pick. 461. A letter from the defendant, who was in Texas, to his friends in Louisiana, acknowledging that he was living with another wife there, being the only evidence offered, was, by the Louis- jana court, adjudged insufficient proof of his adultery to authorize the di- vorce prayed. 'Herman v. McLeland, 16 La. 26. In Clutch v. Clutch, Saxton, 474, it was testified, that the defendant had told the witness he had the venereal disease, which he had contracted in New York, and that a physician named was attending him. This evidence, standing alone, was very properly deemed inadequate; but the court remarked, that confessions “are never held sufficient without strong corroborating circumstances.” Hansley v. Hansley, 10 Ired. 506, a North Carolina case, goes almost to the point of holding confessions altogether inadmissible. [ 287 ] *-§ 311 GENERAL VIEW OF DIVORCE. [Boox Iv. went late to the house where the defendant wife was re- siding, her husband being at sea, and remained there about half an hour. The next morning she seemed to be in dis- tress; said this person had been to the house, and she had committed a great sin. When her husband returned, she confessed to him, before witness, that she had committed adultery then. ‘The evidence was deemed sufficient.! In- deed, the circumstances under which the confession was shown to have been made;? also the mere fact, appearing in the case, that’ the suit was plainly adverse in its character, and seriously resisted, — have been severally held to establish the absence of collusion, so as to authorize the decree with no proof of the offence itself, outside the confession. But this is cer- tainly carrying the point to the very verge. § 811. It has been said, that, in England, “to prevent fraud in these cases, the practice is for the judge (all persons, espec- ially the husband, being removed apart), to examine the wo- man as to the truth and cause of her confession, and to ascer- tain the truth by all other lawful ways and means. If there be fraud or deceit, or a probable suspicion of it, a sentence of divorce will not be granted, unless the adultery be otherwise satisfactorily proved.”* The defendant, under the ecclesias- tical practice, must also, it seems, give a negative issue, that is, deny the charge; and the court is almost bound to reject an affirmative issue; but he cannot be compelled either to give in a plea, or to administer interrogatories. In reality however, if a fair case is made out, the relief will be granted.5 It is difficult to see, how, on any proper principle of general law, the defendant can be compelled to plead negatively to an allegation he does not in fact deny. And this peculiarity 1 Tewksbury v. Tewksbury, 2 Dane Ab. 310. 2 Tewksbury v. Tewksbury, supra. 8 Vance v. Vance, 8 Greenl. 132. But see dictum in McCulloch v. Mc- Culloch, 8 Blackf. 60. 4 Shelford Mar. & Div. 411; Conset, 280. See Oughton, tit. 213. 5 Crewe v. Crewe, 3 Hag. Ec. 123, 131, 5 Eng. Ec. 45, 49. [ 288 ] CHAP. XVII.] LEADING DOCTRINES CONCERNING Divorce. § 313 of practice is explained by Coote, who says, that, on the ad- mission of the libel, “the proctor for the defendant is bound by the canon to give a negative issue, in order to prevent the possibility of the parties colluding to deceive the court.” } Probably this practice is not to be followed here. § 312. While therefore confessions, as a species of evidence in matrimonial suits, should be received with caution, to be in all cases most accurately weighed ; and while, under some circumstances, they are entitled to little or no consideration ;? yet, on the other hand, “where there is less danger of collu- sion, or it could not be practised so easily, the corroborating facts and circumstances need not be of so decisive a charac- » tf se es Where the circumstances of the case are such as to repel all suspicion of collusion, and leave in the mind of the court no doubt of the truth of the confessions, it should act accordingly.” 8 § 313. In some of the United States, the common law as to confessions has been considerably modified by statutes; though, generally in this country, the same doctrine still pre- vails, which we received from England The chief modifica- tion has been the introduction, in a few of the States, of the very unwise provision that confessions be not at all received, whereby a party is sometimes cut off from using the most conclusive evidence, to the utter denial of justice.5 Con- 1 Coote Ee. Pract. 336. ; * Ante, § 307; Williams v. Williams, 1 Hag. Con. 299, 4 Eng. Ec. 415; Burgess v. Burgess, 2 Hag. Con. 223, 4 Eng. Ec. 527. : 3 Sawyer v. Sawyer, Walk. Mich. 48. * Ante, § 306; Shillinger v. Shillinger, 14 Ill. 147; Armstrong v. Arm- strong, 32 Missis. 279, 288. 5 Richardson v. Richardson, 4 Port.467; Gray v. Gray, 15 Ala. 779; Jor- dan v. Jordan, 17 Ala. 466; Hansel v. Hansel, Wright, 212; Brainard v. Brainard, Wright, 354; Simons v. Simons, 13 Texas, 468. But in Ohio, this statutory provision has been abandoned for another, more harmonious with the English rule. See Page on Div. 324, 325; Sheffield v. Sheffield, 3 Texas, 79, 83; Wright v. Wright, 3 Texas, 168, 176. 25 [289] § 314 GENERAL VIEW OF DIVORCE. [BooxK Iv. cerning the interpretation of a statute of this kind it was ob- served, that, “where it becomes necessary to any transaction of either party, the conversation bond fide had, has been uni- formly regarded’ as a part of it, and admissible; the court being careful to exclude every thing that could, by the most strict construction, be looked upon as originating in collusion, or the desire of either party to make evidence to favor the application of the other party.”1 By the former statutes of Alabama, on a bill for divorce, the defendant was not required to swear to his answer; and the confessions of neither party were received in evidence. And it was held, that, where the defendant put in his answer in equity, denying under oath the adultery charged, evidence of two witnesses, or of one with corroborating circumstances, was not necessary.” III. The Issues in the Divorce Suit. § 314. In every divorce suit, on whatever cause founded, the plaintiff must allege and prove, first, his marriage with the defendant; secondly, a sufficient breach of matrimonial duty. He is then entitled, as against the defendant, to a divorce; unless the latter sets up and proves either, first, connivance, 1 Bascom v. Bascom, Wright, 632. And see Gray v. Gray, 15 Ala. 779. 2 Moyler v. Moyler, 11 Ala. 620; ante, § 28, note. In a late Alabama case, the court, by Rice, J., observe, that the act of 1824 made confessions inadmissible in evidence in divorce cases; but the Code now in force, pro- vides, that “ no decree can be rendered on the confessions of the parties.” And they add: “ The Code makes them insufficient, but does not absolutely exclude them. It makes them admissible, but forbids the rendition of a de- cree for divorce when they constitute the only evidence of the alleged cause for divorce. It does not, however, forbid the rendition of such decree when they do not constitute the only evidence, but are proved in conjunction with other circumstances and conduct, which confirm or tend to confirm them, and repel the idea of collusion between the parties. A decree for divorce rendered on confessions, and conduct, and circumstances, is not a decree ‘rendered on the confession of the parties” within the meaning of the Code.” King v. King, 28 Ala. 315, 319. And see further on this point, Hanberry v. Hanberry, 29 Ala. 719. [ 290 ] CHAP. XVII.] LEADING DOCTRINES CONCERNING Divorcr. § 315 which may embrace some facts belonging also under the head of collusion; or, secondly, condonation ; or, thirdly, recrimina- tion; or, fourthly, unless the right is lost by the lapse of time, or by what is called the plaintiff’s insincerity. As against third persons, sometimes permitted to intervene for the pro- tection of their own interest, he is equally entitled to the divorce, unless they also establish some one of these defences. As against the public, represented by what is called the con- science of the court,! he is to the same extent entitled; only this party, not being a party of record, is never obliged to re- spond by plea to the plaintiff’s allegations, and never loses its rights by laches; and so, whenever a defence comes out in the proofs, whether alleged or not, it is fatal to the proceed- ing? A maxim in these suits therefore is, that a cause is never concluded as against the judge;* and the court may, and to satisfy its conscience sometimes does, of its own motion, go into the inquiry of matters not involved in the pleadings. IV. The Evidence of Marriage in the Divorce Suit. § 315. Several of the foregoing issues will be considered in 2 Ante, § 297, * Analogous to this point, there cannot be a nonsuit in criminal cases; because the king, or government, is said to be always present in court. Rex v. Adamson, Say. 56. ® Crewe v. Crewe, 3 Hag. Ec. 123, 5 Eng. Ke. 45, 46; Phillips v. Phillips, 1 Robertson, 144, 156; Turton v. Turton, 3 Hag. Ec. 338, 5 Eng. Ec. 130; Elwes v. Elwes, 1 Hag. Con. 269, 4 Eng. Ec. 401, 411, 412; Lovering v. Lovering, 3 Hag. Ec. 85, 5 Eng. Ec. 27; Mattox ». Mattox, 2 Ohio, 233 ; Smith v. Smith, 4 Paige, 432. And see ante, § 300, 302, 303. * Halford v. Halford, 3 Phillim. 98, 103; Hamerton v. Hamerton, 2 Hag. Ec. 8, 24, note, 4 Eng. Ec. 13, 20. And see Middleton v. Middleton, 2 Hag. Ec. Supp. 134, 4 Eng. Ec. 299, 301; Donellan v. Donellan, 2 Hag. Ec. Supp. 144, 4 Eng. Ec. 304. 5 Smith v. Smith, 4 Paige, 432; Morrell v. Morrell, 3 Barb. 236; post, § 382. But see Lewis v. Lewis, 9 Ind. 105, which, however, was decided not in accordance with the general doctrine. [291 ] § 315 GENERAL VIEW OF DIVORCE. [Book Iv. separate chapters; but, in this chapter, we shall look at the evidence of marriage, and at ‘the evidence generally. The necessity of proving the marriage arises, not only from the fact that the marriage is an essential ingredient in the offence alleged, since no violation of matrimonial duty can take place where the matrimonial relation does not exist ; but likewise from the consideration, that, as divorce is the suspension or dissolution of this relation, if there is no relation subsisting, there is nothing for the divorce to act upon.1 And so marriage is the foundation of the whole proceeding ;? and the decree or sentence of divorce affirms the marriage, in form and effect,3 as well as declares the separation.t In the ecclesias- tical practice, when the defendant denies having entered into this relation, or denies the validity of it, the proceeding assumes the form of a suit for nullity: the question of the marriage is the first settled; and, if affirmed, the alleged breach of it is inquired into afterward.5 Where the defend- ant does not contest the marriage, the plaintiff needs simply 1 Cooper v. Cooper, 7 Ohio, 238; Ayl. Parer. 50. In like manner, a law- ful marriage must be shown as the foundation of a suit for alimony ; yet it has been intimated, that, for the purposes of this suit, if a man has treated and held out a woman as his wife, he shall be estopped thereby from deny- ing that she issuch. McDonald v. Fleming, 12 B. Monr. 285. And see Trim- ble v. Trimble, 2 Cart. Ind. 76; post, § 320. It is doubtful, however, whether this species of estoppel in pais ought to be allowed in suits between the parties. ? Hamerton v. Hamerton, 2 Hag. Ec. 8, 4 Eng. Ec. 13; Zule v. Zule, Saxton, 96; Guest v. Shipley, 2 Hag. Con. 321,4 Eng. Ec. 548; Best v. Best, 1 Add. Ec. 411, 2 Eng, Ec. 158, 160; Clowes v. Clowes, 9 Jur. 356; Sinclair v. Sinclair, 1 Hag. Con. 294, 4 Eng. Ec. 412; Williams v. Dormer, 16 Jur. 366, 9 Eng. L. & Eq. 598; Tarbell, petitioner, 32 Maine, 589; Wright v. Wright, 6 Texas, 3. 5 Coote Ec. Pract. 346, 357. * Mayhew v. Mayhew, 3 M. & S. 266, 3 Phillim. 11. 5 Montague v. Montague, 2 Add. Ec. 375, 2 Eng. Ec. 850; Mayhew v. Mayhew, 2 Phillim. 11, 1 Eng. Ee. 166; Brown v. Brown, 2 Hag. Ec. 5, 4 Eng. Ec. 11; Robins v. Wolseley, 2 Lee, 149, 6 Eng. Ec. 75. This is also the rule in Scotland. 1 Fras. Dom. Rel. 659 [ 292 ] CHAP. XVII] LEADING DOCTRINES CONCERNING Divorce. § 316 to prove it, in connection with his other allegations And the defendant must either deny or admit it, at once, on the introduction of the libel.? § 316. In an early Massachusetts case the court, declining to decide whether or not a marriage may be valid for some purposes and invalid for others, held, that, to authorize a divorce, it must be good for all purposés. The marriage in question not being valid within the statute, the court consid- ered the statute not to authorize its dissolution.2? But ifa marriage is a marriage at all, and, as such, binding for any purpose, no very obvious principle appears justifying the * In an old Massachusetts case it was held, that, on a libel for divorce from bed and board only, it is not necessary to prove the marriage, Unless it isdenied. Hill v. Hill, 2 Mass.150. And the Court of Chancery, in Mary- land, seems to have heard cases of divorce and alimony on bill and answer, without evidence of marriage beyond the admissions of the parties so ob- tained. See the cases cited in Helms v. Franciscus, 2 Bland, 544. See also, for Illinois, Harman v. Harman, 16 Ill. 85. In Maine, on a libel for divorce a mensé et thoro for cruelty, where the respondent did not appear, and the counsel for the libellant cited the above case of Hill v« Hill, the court, without deciding the question in its application to suits where the respondent appears and admits the marriage, held, that, in a case situated like the one before the court, evidence of a legal marriage must be produced. The court said: “ Possibly the other party might not have had actual knowl- edge of the pendency of the libel, even though it may have been served or published as the law requires; and, as the consequences of the divorce might seriously affect his estate in the matter of alimony, they would not decree a divorce from bed and board until it should appear, that the parties had been legally married, and that the libellant was thereby entitled to her alimony by law.” Williams v. Williams, 3 Greenl. 135. See also, Jones v. Jones, 18 Maine, 308. But the other authorities, English and American, require the marriage to be proved in suits for divorce from bed and board, as well as from the bond of matrimony ; and they do not allow this fact, more than any other in the case, to be established by the sole admissions of the defend- ant. Plainly the canon, and the reason of it, must apply to the marriage, as much as to any other part of the plaintiff’s case. See cases cited ante, § 306, 314; post, § 700, 710. 2 Coote Ec. Pract. 336. * Mangue v. Mangue, 1 Mass. 240. 25+ [ 293 ] § 316 a GENERAL VIEW OF DIVORCE. [BOOK Iv. court in refusing to interfere. And in a recent English case, Dr. Lushington apparently laid down the proposition, that, if a marriage is so far good as to preclude its being set aside on a proceeding for nullity, it is sufficient to sustain a sentence of separation for adultery. “If I could not pronounce the marriage void,” he said, “it almost follows, as it seems to me, that I must pronounce it valid for certain purposes; and, if for certain purposes, valid for the husband or wife, as the case might be, to obtain a separation for a violation of the marriage vow.” The marriage under consideration was a contract per verba de presenti, entered into in a British colony, and the court — subsequently to the decision in The Queen v. Millis!— held it sufficient to authorize a divorce? § 316 a. The question however still remains, whether a voidable marriage, in distinction from a void one, is sufficient. as the foundation of a suit for divorce. We have no Ameri- can authority conclusive of this point, but plainly it could not be so in the English ecclesiastical tribunals; and a single reference to what is said in our chapter concerning Void and Voidable in Marriage, will make this proposition plain. There is a recent English case, in which a further proposition was debated by Dr. Lushington, but not decided; namely, sup- 1 Ante, § 159-162. 2 Catterall v. Catterall, 1 Robertson, 580, 581, 583. And see ante, § 162. See also D’ Aguilar v. D’ Aguilar, 1 Hag. Ec. 773, 3 Eng. Ec. 329, 330, where Lord Stowell remarked, that “ all persons who stand in the relation of hus- band and wife, in any way the law allows, as by a foreign marriage, or by a domestic marriage not contrary to law, have claim to relief on the violation of any matrimonial duty.” In the United States, where the contract per verba de presenti alone is held to be a good marriage at common law, it is difficult to see how this question can practically arise; for the relation of husband and wife, it seems to me, must either exist or not exist, the law having made no provision for an intermediate state. There may be issues in which the proof of a particular marriage would fail, when it would prevail in other .issues ; but this is mere matter of evidence. 3 Ante, § 46 et seq. [294] CHAP, XVII.] LEADING DOCTRINES CONCERNING Divorce. § 317 pose a party is sued for divorce for some cause arising sub- sequently to the nuptials, and one of the parties is shown in evidence to have been, at the time of the nuptials, physically impotent, rendering therefore the marriage voidable; yet a further fact appears, that the right to avoid the marriage for this defect could not practically be availed of, in consequence ‘of insincerity or delay in the one injured thereby, — could, in these circumstances, the plaintiff rely on this marriage as a foundation for the divorce! Notwithstanding the English doctrine does not allow a voidable marriage to be sufficient, the consequence may not follow, that, in all the States, and under all circumstances in which the question could arise in our jurisprudence, it will be insufficient with us. And an Illinois case seems to lay down the doctrine, that, in divorce suits, only the fact of a marriage need be proved, not: its legality. This, however, would doubtless be everywhere sufficient prima facie evidence of a valid and legal marriage. Yet Scates, J., observed: “I apprehend a mere de facto or cohabitation marriage, and an unlawful marriage, such as is’ void as being within the degrees of consanguinity, or between white and colored persons, may be dissolved by decree, or declared void. Rev. Stats. 1845, p. 196, § 1.2 § 317. In suits for nullity of marriage, as in suits for divorce, the marriage sought to be set aside must be proved? Yet the rules, governing the proof, as to quantity and kind,” in suits for nullity, seem not to be well defined. In an Eng- lish case, — where the marriage was celebrated in Scotland, and the ground of nullity alleged was that the defendant wife had a former husband living at the time of its celebration, — Dr. Swaby, after remarking that the direct evidence of the fact of the marriage, in respect to which the sentence of nullity was prayed, was not satisfactory, added: “ Nor is this lack of primary evidence at all compensated for by any 1 Anonymous, Deane & Swabey, 295. ? Harman v. Harman, 16 Ill. 85. * Aughtie v. Aughtie, 1 Phillim. 201, 1 Eng. Ec. 72. [ 295 ] ¢ § 318 GENERAL VIEW OF DIVORCE. [BOOK Iv. secondary proof in the cause; as of consummation, cohabita- tion, mutual acknowledgments, &c. For, even granting such secondary proof to be admissible in the case, which is very doubtful (it being a case brought inter vivos, and by the one against the other contracting party), save only in corrobora- tion of other and more direct testimony — namely, that of persons present (there being persons still living vouched to have been present) at the alleged fact of marriage, — yet still, of the little of such secondary proof as appears in the cause, the whole is extra-libellate, and so, strictly speaking, no proof.” But he admitted, on the authority of former decisions, that, if the suit were prosecuted by a person other than one of the parties to the marriage, and the proof of the fact of marriage were not in the power of such a plaintiff, it might, without this proof, be declared void. Under the latter state of facts, the decree of the court would pronounce the marriage “ void, if any such were had.”+ Under the former, and as the general tule, the decree affirms the fact of the pretended marriage, as well as pronounces it void.? § 318. The amount and species of proof necessary to establish a marriage, in suits for divorce and separation, seem also not to be very clearly defined upon authority. The material question is, whether what is sometimes termed a fact of marriage must be shown, as in indictments and actions for seduction; or whether such evidence as of cohabitation and repute, which derives its significance from the legal presump- tion of innocence, is sufficient. In divorce bills before the House of Lords, “the usual course,” says Macqueen, “is to produce and prove an examined copy of the entry in the marriage register; and then to call a witness who was present at the ceremony, and acquainted with the parties. Such evi- dence, however, cannot always be obtained. But the best ? Nokes v. Milward, 2 Add. Ec. 386, 2 Eng. Ec. 356, and cases in the notes. 2 Coote Ec. Pract. 402, 424, ® Cood v. Cood, 1 Curt. Ec. 755, 6 Eng. Ec. 452, 456. [296] CHAP. XVIL.] LEADING DOCTRINES CONCERNING Divorce. § 320 proof must be tendered that the circumstances of the case will admit of”! In the ecclesiastical courts, the libel for divorce, whether for adultery or for cruelty, pleads in form both a fact of marriage celebrated according to law, and eohabitation and repute following. When we consider the course of proceeding in these courts, the conclusion to be drawn from this form of pleading is simply, that proof of co- habitation and repute is relevant to the issue ; but whether it is sufficient of itself, we must learn elsewhere. § 319. In a suit in Ireland for jactitation of marriage, where, as is not always or necessarily the case in this suit,? a marriage legally solemnized was set up in defence; and where the clergyman who, it was said, performed the cere- mony, was not living; and one of the two witnesses was dead also, and the other witness could not identify the parties; an attempt was made to prove the marriage by circumstantial evidence. Dr. Radcliff held, that the circumstances made to appear were insufficient, but added: “It is proper to contra- dict a notion, that a marriage in such a case could not be proved by circumstances, cohabitation, and acknowledg- ment.” # § 320. In Virginia, in an equity suit by the wife against the husband for alimony, on the allegation of his desertion and refusal to support her, the marriage being denied by him in his answer, evidence of his former admissions, of cohabita- tion, and general repute, without any more direct proof, was held to be enough. And the Chancellor distinguished this case from indictments and actions for criminal conversation, in which is charged a crime resting on the marriage alleged. “But the virtuous act of matrimony,” he added, “may in this case, as in many others, be proved by cohabitation, name, 1 Macqueen Parl. Pract. 535. 2 Coote Ec. Pract. 320, 350. 3 Ante, § 263. * Bodkin v. Case, Milward, 355, 361. [297] § 322 GENERAL VIEW OF DIVORCE. [Boox Iv. reputation, and other circumstances.”1 So in Alabama,? Texas,® Indiana,‘ and Illinois,® evidence of cohabitation and repute, and the like, seems to have been deemed sufficient in proof of marriage, in divorce suits. § 321. In the English case of Mellin v. Mellin, decided in 1838 by the Privy Council, Lord Brougham said, that a sentence of divorce from bed, board, and mutual cohabitation “can only be pronounced upon strict proof of the status of the parties; but there was no discussion, as to what would be considered strict proof.6 In Cood v. Cood, which was a suit for divorce on the ground of adultery, it was in evidence, that the parties were on a voyage, in Barbadoes, and there intended to be married; that the witness wrote to the governor for a special license; and that, after what was assumed to have been the ceremony performed, they returned to the ship as husband and wife, and were so treated. Dr. Lushington would not decide whether this was alone sufficient evidence; there being other evidence, making, with this, the point satis- factory.’ § 322. In the late case of Saunders v. Saunders, which was a suit for divorce on the ground of cruelty, a marriage in Scotland was pleaded, and the entry in the Scotch register offered as an exhibit. On the question of admitting the libel, Dr. Lushington observed: “ Now I ‘apprehend, that some difficulty will necessarily arise from the admission of this ex- ? Purcell v. Purcell, 4 Hen. & Munf. 507, 512. 2 Morris v. Morris, 20 Ala. 168. § Wright v. Wright, 6 Texas, 3. ‘ Trimble v. Trimble, 2 Cart. Ind. 76. 5 Harman v. Harman, 16 Ill. 85. * Mellin v. Mellin, 2 E. F. Moore, 4938. ™ Cood v. Cood, 1 Curt. Ee. 755, 6 Eng. Ee. 45% See also Hervey v. Hervey, 2 W. BI. 877; Kenrick ». Renrik, 4 Ilag. Ee. 114, 129; Duncan v. Duncan, 2 Monthly Law Mag. 612; Mitchell v. Mitchell, 11 Vt. 184; Houpt v. Toupt, Wright, 156; 8. ¢. 5 Ohio, 589; Prince v. Prince, 1 Rich. Eq. 282. [ 298 ] CHAP. XVII.] LEADING DOCTRINES CONCERNING DIvoRCE. § 323 hibit, for these registers are not kept by any official person. [ Robertson. — These certificates have always been received in evidence by the courts in Scotland.’] You must be aware, that banns are not proclaimed in one case in fifty in Scot- land; and it does appear to me, that, this being nothing more than a certificate of the session clerk, and he not being authorized by the law of Scotland:to keep a register, when we come to the proof of this marriage we shall have much difficulty in establishing it upon this document. You must have the evidence of persons who were present at the mar- riage, for. I do not think that I shall receive this certificate. The fact of marriage, in these proceedings and in actions for criminal conversation, must be proved in a different manner from a marriage in all other cases whatever. I am not aware that there is any law establishing a register of marriages in © Scotland.” 2 § 323. In a criminal suit for incest, before the same judge, in the Consistory Court of London, some observations fell from him which might lead to the inference, that the proof of marriage varies with the tribunal in which it is offered. But if there are rules of evidence peculiar to the ecclesiasti- cal courts, they can have no peculiar force elsewhere ; for it is a general truth, that whatever evidence will establish a given fact in a given issue before one tribunal, will do the same, under like circumstances, before another. Indeed it must be so while the law is a science, and-judicial proceedings are carried on to ascertain facts. The question was one of pedi- gree, involving the proof of marriage, and the learned judge said: “In considering, further, whether I am entitled to dis- pense with the production of the register, I must look to the practice of the court in which I am sitting; and it has been the practice to require the production of the register where it could be obtained, and I should be reluctant, unless necessity compelled me, to relax the rule. I must however observe, - 1 Tait on Evidence, 53. 2 Saunders v. Saunders, 10 Jur. 143, 144. [299 ] § 324 GENERAL VIEW OF DIVORCE. [Book Iv. that I am satisfied that a register is not to be considered the best evidence of a marriage, nor has it ever been so considered in the books and authorities on the question. The rule re- specting best evidence is, that you are not allowed, where. there is evidence of a superior character, to give inferior evi- dence, unless you account for the non-production of the best evidence ; the effect of which is to exclude all other evidence, till the absence of the best evidence is accounted for. But I am of opinion, that the register is not, in contemplation of law, the best of evidence; for these reasons: first, that regis- tration is not necessary for the marriage itself; secondly, that no error or blunder in the register could affect the validity of the marriage; and, thirdly, that registration is not like an agreement or a deed in writing, and the contents of which cannot be proved by vivd voce evidence, but it is a mere record afterwards of what has been: done; and no doubt a very important record to those who enter into the compact ; but it is a mere memorandum of the compact they enter into, not the compact itself. I am encouraged in this opinion by the course of practice in the courts of law, which consider, that, in order to establish a marriage, the evidence of any one person present at the marriage is sufficient, without calling for the register at all.” ? § 324. On a review of the authorities, therefore, we find ourselves as far from coming to a satisfactory conclusion, as if no authorities concerning the proof of marriage in matrimonial causes existed. Let us, then, inquire how the question stands on principle, and on those doctrines of the law of evidence which have been applied to the proof of marriage in other issues. This is not the place to review the cases decided on other issues, and the principles governing those cases; but, let it here be stated, that such an examination would lead to the following result: When parties are living together as hus- . band and wife, the legal presumption, favoring innocence, is, ? Woods v. Woods, 2 Curt. Ec. 516, 7 Eng. Ec. 181, 184. [ 300 ] CHAP. XVII.}] LEADING DOCTRINES CONCERNING DiIvorcr. § 325 that they are married together, not violating morality and de- cency and law. But when the issue, to be decided in the case, makes the one against whom it is decided to have vio- lated morality and decency and law if the other party were married to a third person, then no presumption of such mar- riage can arise simply from cohabitation as husband and wife. Thus, if a man is sued in an action of criminal conversation, and the evidence is, that the plaintiff lived in the way of mar- riage with a particular woman, and the defendant had sexual intercourse with the same woman, plainly either the plaintiff or the defendant has violated morality and decency and law ; but the court will not suffer it to be inferred from this bal- anced presumption, which of the parties is innocent, and which is guilty. Therefore in this issue, and in the issue which rests on the same reason in an indictment for adultery, there must be direct proof of the marriage, in distinction from this pre- sumptive evidence When the direct proof is required, the expression of the courts sometimes is, that the fact of marriage must be established, — an expression neither very apt in itself, nor always well understood by writers who have used it. § 325. Applying the distinction stated in the last section to the divorce suit, we have ihe following result: If the alle- gation is of adultery, the marriage cannot be sufficiently in- ferred from the matrimonial cohabitation of the parties to the suit; though with the added reputation of their being married. persons, which reputation follows merely as a shadow after the fact of their dwelling together; because the same benign: presumption of law which would infer, from this living together, an actual marriage, in order to prevent the inference of an offence having been committed, would in like manner and for: the same reason infer a marriage between the defendant and. the particeps criminis; which latter inference would conflict with and neutralize the former. Therefore plainly, upon prin-. * See also ante, § 90 et seq.; Clayton v. Wardell, 5 Barb. 214, 4 Comst. 230; Holmes v. Holmes, 6 La. 463. 26 [301 ] § 327 GENERAL VIEW OF DIVORCE. [BOOK Iv. ciple, what is called an actual marriage must be proved in this issue. Whether the same is necessary in suits for cruelty depends perhaps on the question, whether, within the mean- ing of our rule, acts of cruelty are to be regarded, like acts of adultery, as violations of morality and decency and law. Lord Stowell seemed to consider them to be so; for, in pro- nouncing his masterly judgment in Evans v. Evans, which was a suit for cruelty, he said: “The case indeed is civil, as has been repeatedly observed, but the facts undoubtedly are criminal.” On the other hand, if they are regarded as crim- inal, are they more so, or less, if the parties are married, than if they are not? Because, though they should be deemed criminal, if their criminality was not connected at all with the fact of the marriage, it could not enter into the consideration of the question. Then, in the suit for desertion, the evidence of marriage, derived from the former cohabitation of the par- ties, must be greatly weakened by the subsequent desertion. But we need not speculate where the lamp of judicial author- ity goes not before. § 326. In some of the United States, legislation has relieved the courts of any technical rules, by providing, that, in all causes of divorce, evidence of cohabitation and repute, and other like circumstantial testimony, shall be competent. V. Concerning the Proofs and Witnesses generally. § 327. Under the present sub-title, we shall mention only a few points; because, when we come to the consideration of specific defences and specific grounds of divorce, we shall 2 Evans v. Evans, 1 Hag. Con. 35,4 Eng. Ec. 310, 813. In Massachu- setts, though there is no direct reported decision, I have understood it to have been always the custom of the courts to require the marriage, in divorce cases, to be proved in the same way as in indictments and actions for criminal conversation, until Stat. 1840, c. 84, established another rule. See also ante, § 320, 322. [302 ] CHAP. XVII} LEADING DOCTRINES CONCERNING DIvoRcE. §328 have occasion to examine somewhat, under each title, the evidence pertaining to it. In a suit for nullity of marriage, by reason of a former marriage still subsisting, the person with whom such former marriage was contracted cannot be a witness to prove it. § 328. The plaintiff, let us observe as a general point, must establish the offence which he alleges. In England, all issues of fact, as well as of law, were tried by the court, while these ‘causes belonged to the ecclesiastical tribunals. At present however, under Stat. 20 & 21 Vict. c. 85, § 28, 36, the court has a discretion always to submit questions of fact to a jury, and under particular circumstances is compelled to do so, if either party requests. Generally in the United States, the court tries the issue in divorce causes; but, in several of the States, it is to be submitted to a jury, as in a suit at common law. In respect to the trial by the court, Dr. Lushington once observed: “ Discharging the united functions of judge and jury, it is not sufficient for the court to have a moral con- viction of the guilt of the party —it must be satisfied that such conviction is founded on legal evidence, applicable to legal charges.” And in applying these observations to the pleadings and proofs before him, he added: “ Looking at these facts, I am compelled to say, that the proof, judicially considered, is not sufficient, in my opinion, to support the . charge. Moral conviction is the opinion of a jury without a judge; judicial conviction ought to combine both. I must have adequate legal proof, and I am not satisfied that this is adequate. Many cases have occurred, and frequently will occur, in which mere opinion may be one way, but judicial decision the other.” It may be observed, that cases of this kind used more frequently to arise in England than they do in the United States; because here we are not embarrassed 1 Cobbe v. Garston, Milward, 529. And see Searle v. Price, 2 Hag. C8n. 187, note, 4 Eng. Ec. 524. 2 Caton v. Caton, 13 Jur. 431, 482, 433. [ 303 ] § 330 GENERAL VIEW OF DIVORCE. [Book Iv. by the rule requiring the concurrent testimony of two wit- nesses, or of one with corroborating cireumstances,!— which rule is now probably abolished in England by Stat. 20 & 21 Vict. c. 85, § 48, the words of which are: “ The rules of evi- dence observed in the superior courts of common law at Westminster shall be applicable to, and observed in, the trial of all questions of fact in the court,” now established for the investigation of these questions. Yet here, as the plaintiff must prove his case, the judge must be affirmatively satis- fied, by the legal evidence before him, of the defendant’s guilt, or he cannot proceed to the decree.2 And if the plaintiff sets up a false case, the suspicions of the judge will be particularly aroused.2 So while “allegation without proof passes for nothing, proof without allegation passes for nothing. This is the rule in reference to all proceedings in court.” 4 § 329. It is hardly necessary to state, that, where a cause of divorce has occurred, the marriage is not dissolved thereby ; but remains in full force until the sentence of the court declares its dissolution § 330. One general observation may be made concerning witnesses in these suits. The witnesses are often the rela- tives, or the friends, or the dependants of one or both of the parties; and so they have usually a strong feeling, perhaps a prejudice, in favor of one or the other of them. Still their testimony is not to be therefore rejected ;° but, in weighing it, the court will take into consideration all the circumstances by which it may be affected. This subject has received the fre- 1 Ante, § 28, note; Atkins v. Atkins, post, § 465, note. * Friend v. Friend, Wright, 639. And see Brainard v. Brainard, Wright, 354. 3 Dunn v. Dunn, 2 Phillim. 403, 1 Eng. He. 280, 285. * Foy v. Foy, 13 Ired. 90, 95 ; (Johnson v. Johnson, 4 Wis. 135). 5 Wells v. Thompson, 13 Ala. 793. 6 Lockwood v. Lockwood, 2 Curt. Ee. 281, 282, 7 Eng. Ec. 114, 115. [304 ] CHAP. XVII.] LEADING DOCTRINES CONCERNING DIVORCE. § 330 quent animadversion of the English judges; and they have considered, that, in matters of opinion, such witnesses are to be distrusted; in matters of fact, to be credited. The pre- sumption is, that near relatives will be biassed toward those to whom they are related, servants and dependants toward those by whom they are employed. In respect to the children of the parties, no such presumgtion arises either way, but they are liable to bias and partisanship. * Lockwood v. Lockwood, 2 Curt. Ec. 281, 289, 7 Eng. Ec. 114, 118; Saunders v. Saunders, 5 Notes Cas. 413, 417, 1 Robertson, 549, ° D’Aguilar v. D’Aguilar, 1 Hag. Ec. 773, 782, 3 Eng. Ec. 329, 335; Tx. v. Dillon, 3 Curt. Ec. 86, 102, 7 Eng. Ec. 377. And see The State v. Nash, 8 Ired. 85; Cioccio v. Cioccio, 26 Eng. L. & Eq. 604, 613. 26 * [ 305 ] \ \ § 332 GENERAL VIEW OF DIVORCE. [Book Iv. t + CHAPTER XVII. \ CONNIVANCE A’ COLLUSION. 7 Sect. 3381. Intoduetion. 332-338 a. The Doctrine of Connivance. 839-349. Proofs and P-actice. 850-353. Collusion. J § 331. Tun several causes of divorce will be examined further on. In the presert and some succeeding chapters, we shall take a view of the defences, general in their nature, recognized in the law, to these suits. This chapter will be given to the following matters: I. The Doctrine of Conniv- ance ; II. Proofs and Practice; IIJ. Collusion. I. The Doctrine of Connivance. § 332. Connivance is the corrupt consent of a party to the conduct in the other party whereof he afterward complains. It bars the right of divorce, because no injury was received ; for what a man has consented to, he cannot say was an injury. “In that case,” observes Lord Stowell, “the general rule of law comes in, that volenti non fit injuria, no injury has been done, and therefore there is nothing to redress.” 1 While this defence is available in all divorce causes, those in which it has more frequently arisen, are causes of adultery. * Forster v. Forster, 1 Hag. Con. 144,4 Eng. Ec. 358, 360; Rogers v. Rogers, 3 Hag. Ec. 57, 5 Eng. Ec. 18, 14; Anichini v. Anichini, 2 Curt. Ec. 210,7 Eng. Ec. 85, 86; Pierce v. Pierce, 3 Pick. 299; Reeves v. Reeves, 2 Phillim. 125, 1 Eng. Ec. 208 ; Moorsom v. Moorsom, 3 Hag. Ec. 87,5 Eng. Ec. 28; Harris v. Harris, 2 Hag. Ec. 376,414, 4 Eng. Ec. 160, 178; Clowes v. Clowes, 9 Jur. 356; Barker v. Barker, 2 Add. Ec. 285, 2 Eng. Ec. 307; Phillips v. Phillips, 1 Robertson, 144. [ 306 CHAP. XVIII. ] CONNIVANCE AND OOLLUSION. ° § 334 § 333. Evidently connivance is a thing of the intent, rest- ing in the mind. It is a corrupt consenting. Errors or impru- dences “coming short of, this, however fatal in their conse- quences, are not connivance. “ Different men have different degrees of judgment, and judge differently; nor are we to judge by the event. A court of justice must look quo animo the step is taken.”1 But the connivance may be a passive permitting of the adultery or other misconduct, as well as an active procuring of its commission. If the mind consents, that is connivance? § 334, A query was indeed suggested by Dr. Lushington, in 1829, whether, in a suit for divorce on the ground of adultery, something short of this concurrence of the will may not bar the plaintiff’s remedy. His words were: “ What degree of neglect, however culpable, short of an actual and voluntary exposure of the wife to the seduction of the adulterer would be sufficient, in order to bar a suit for divorce by reason of adultery, is nowhere laid down, at least with that distinctness and precision which would furnish a safe guide for the court to act upon. The court certainly does not recollect any case of the kind; but it can conceive, that a case might arise of such wilful nepleg or rather exposure, as might, without proving actual connivance, possibly bar the husband of all remedy by a divorce. A husband might * Hoar v. Hoar, 3 Hag. Ec. 137, 5 Eng. Ee. 51, 53, by Lord Stowell ; Moorsom v. Moorsom, 3 Hag. Ec. 87, 5 Eng. Ec. 28; Turton v. Turton, 3 Hag. Ec. 338, 5 Eng. Ec. 130, 136. * Moorsom v. Moorsom, 3 Hag. Ec. 87, 5 Eng. Ec. 28; Rogers v. Rogers, 3 Hag. Ec. 57, 59, 5 Eng. Ec. 18, 15; Walker v. Walker, cited 3 Hag. Ec. 59, 5 Eng. Ec. 15; Rix v. Rix, 3 Tag. Ec. 74, 5 Eng, Ec. 21; 2 Greenl. Ev. § 51. And see the luminous judgment of Sir Herbert Torna Fust, in Phillips v. Phillips, 10 Jur. 829, where this whole subject of connivance is discussed, and the authorities are cited and reviewed. The principle de- duced by the court, as applicable to the case then under consideration, is, “that where there is no corrupt intention proved on the part of the hus- band, he is not debarred from the remedy.” See also gs. c. decided in the court below, by Dr. Lushington, 1 Robertson, 144. [ 307 ] \ § 3385 GENERAL VIEW OF DIVORCE.’ [BooK Iv. : \ introduce his wife to society so abandoned, and expose her to risks so great, as to render a deviation from the paths of chastity the most probable, if not the necessary, consequence. Under such circumstances, perhaps, the court would not wait for proof of actual connivance on the part of the husband, but would hold him to the consequences of his own conduct, where the adulterous connection arose from the society and temptations to which he had introduced his wife.”! Yet the principle on which such a husband would be deemed respon- sible, if at all,in the case suggested, is doubtless that he must be presumed to have intended the natural consequences of his own conduct If one should ignorantly place his wife in circumstances of temptation, it would be contrary to the spirit of the authorities, contrary to justice also, to hold, that the mistake bars him of his remedy, on her voluntarily yield- ing to the temptation.? This evidently is likewise the later opinion of this learned judge himself, as to what the law is, perhaps not as to what it should be.* § 335. The same learned judge, thirteen years after decid- ing the case from which the foregoing extract has been made, said: “If adultery is charged against a wife, if counter-adul- 1 Harris v. Harris, 2 Hag. Ec. 376, 4 Eng. Ec. 160,178. And see Barber v. Barber, 4 Law Reporter, N.s. 375, a Connecticut case, in which similar language is employed by Church, C.J. In actions for criminal conversa- tion, the doctrine of the common law is, that, if the husband consents to his wife’s adultery, the consent bars his action; if he is only negligent, this goes merely in reduction of damages. Duberley v. Gunning, 4 T. R. 651, 657. See Reeve Dom. Rel. 64. * “Tn all this I do not say, that the husband intended the ruin of his wife, and was looking for a divorce as the consequence; but, if the legal presump- tion be applied that every man is presumed to intend the legitimate conse- quence of his deliberate acts, such a conjecture is not unreasonable.” In this case the plaintiff was held to be barred of his remedy. Barber v. Bar- ber, supra. And see post, § 344; 1 Bishop Crim. Law, § 248, 513, 514. 3 See Moorsom v. Moorsom, 3 Hag. Ec. 87, 5 Eng. Ec. 28; Hoar v. Hoar, 3 Hag. Ee. 137, 5 Eng. Ec.51; Burgess v. Burgess, 2 Hag. Con. 228, 4 Eng. Ke, 527. * Post, § 335; Phillips v. Phillips, 1 Robertson, 144. [ 308 ] CHAP. XVIII] CONNIVANCE AND COLLUSION. § 336 tery cannot be proved, nothing can bar a sentence for separa- tion but connivance on the part of the husband; cruelty will not be a bar, neither will malicious desertion ; although such conduct will have a tendency to cause the wife to commit adultery, it is clearly established that it is no defence to the husband’s suit. Although I have some doubt as to the pro- priety of the doctrine on this point, I have felt myself com- pelled to act on it; indeed, I did act on it in a recent case of Morgan v. Morgan.”! And he therefore held, in a husband’s suit for adultery, that a defensive charge of cruelty, not ad- missible in England on general principles, was not rendered so by the averment of the cruelty having been inflicted to get rid of the wife, by driving her to the commission of adultery. But he added: “There may by possibility be cases where cruelty on the part of the husband may directly lead up to the wife’s adultery ; I say nothing upon such a case.” 8 § 336. When a husband suspects his wife of infidelity to his bed, he may watch her, and even leave opportunities open for her, in order to obtain proof of her guilt; but even for this purpose he must neither lay temptations in her way, nor provide the opportunities. “It is true,’ remarks Lord Stowell, “a husband is not barred by a mere permission of opportunity for adultery ; nor is it every degree of inattention on his part which will deprive him of relief; but it is one thing to permit, and another to invite; he is perfectly at liberty to let the licentiousness of the wife take its full scope; but that he is to contrive the meeting, that he is to invite the — adulterer, then to decamp and give him the opportunity, I do think amounts to legal prostitution.”4 If therefore a man * Morgan v. Morgan, 2 Curt. Ec. 679, 686, 7 Eng. Ec. 258. And see post, § 343. 2 Post, § 391. 8 Dillon v. Dillon, 3 Curt. Ec. 86, 7 Eng. Ec. 377, 381. And see the opinion of the same judge in Phillips v. Phillips, 1 Robertson, 144. s. c. in the Arches Court, 10 Jur. 829. * Timmings v. Timmings, 3 Hag. Ec. 76, 5 Eng. Ec. 22, 25; Pierce v. [309 J 1 § 338 GENERAL VIEW OF DIVORCE. ‘ [Book Iv. i thus leads his wife into adultery, he cannot have a divorce from her because of her having followed. § 337. There is a doctrine going still further; namely, that, if a man connives at one act of adultery committed by his wife, he cannot have a divorce from her, though afterward she commits other acts of adultery with the same or any other particeps criminis. This doctrine, as a general one, is very just; still, in reason, it should not be carried to all lengths, because thus a man would be forever barred of all hope, though he should repent of his wrong, and strive to win his wife to repentance also. Where the woman undertakes to defend herself against her husband’s suit for divorce, grounded on such her subsequent adultery, by relying on his connivance in a former instance, with a different person, she must prove the former adultery ; since connivance in law attaches not on the one side, unless the legal guilt of adultery is incurred on the other, though in foro conscientie it may be otherwise. § 338. In an English case, decided by Sir William Wynne in 1796, it was held, that the husband, proceeding against his wife for gross adultery which she had committed five years after their separation, resulting in the birth of children bap- tized in his name, was not barred, though, before the separa- tion, he had connived at adultery by her with persons other than the one with whom her later adulteryewas committed? Pierce, 8 Pick. 299; Reeves v. Reeves, 2 Phillim. 125, 1 Eng. Ec. 208; Clowes v. Clowes, 9 Jur. 356; Bray v. Bray, 2 Halst. Ch. 628. Dr. Lush- ington says, that the expression of Lord Stowell, in the text, must be under- stood to mean no more than that a husband, suspecting his wife of adultery, is at liberty to remain quiet, and to watch her, for the purpose of detecting her adultery ; but,.if he is once in possession of a fact of adultery, and still continues his cohabitation, it proves, as Lord Stowell had also observed, con- nivance, collusion, and facility. Phillips v. Phillips, 1 Robertson, 144, 158. 1 Stone v. Stone, 3 Notes Cas. 278, 806, 307, 1 Robertson, 99. There must be consent with knowledge of the adultery. Phillips v. Phillips, 1 Robertson, 144. And post, § 338. ° Hodges v. Hodges, 3 Hag, Ec. 118, 5 Eng. Ec. 42. [310 ] CHAP. XVIII.] CONNIVANCE AND COLLUSION. § 338 But when he brought his suit, in the common law court, against this person for the criminal conversation, Lord Kenyon ruled, that “his having suffered such connections with other men was equally a bar to the action, as if he had permitted the present defendant to be connected with her.” ? And Dr. Lushington, in a subsequent: divorce case, permitted the wife to plead connivance, under similar circumstances, observing in respect of the before-mentioned suit for divorce: “ It is, to the best of my knowledge and belief, the only case which upholds that doctrine ; and, although the case has been cited by judges for other purposes, it has never been relied upon for the main question, namely, that the husband may connive at the adultery of his wife with one man, and ata subsequent period obtain a divorce in these courts for her adultery with another. Such a doctrine, resting upon a single case, however high the authority, most unquestionably I will not follow. Ihave had occasion to make the observa- tion before, that I never can think that a man who had been so forgetful of his own duties, moral and religions, towards his wife, and of all feelings of honor as a gentleman, as to connive at his own disgrace, by being a party to her adultery with one man, can come to a court of justice with clean hands, and seek a separation for the subsequent conduct of his wife, to whose guilt he had been, as it were, foster-father. So far as this principle is concerned, I have no hesitation, therefore, in sayiag, that I will not be deterred by the decision of Hodges v. Hodges, from allowing the wife in this case to plead facts sufficient in law to prove, if she can, that Mr. Stone did connive with Mr. H. during the cohabitation.” 2 So, in a much earlier case, where the wife made no defence to the suit, Lord Stowell dismissed it, on the ground, that, though the adultery alleged was clearly proved, yet the hus- band was shown also to have connived at another act, nearly contemporaneously committed, with another person. “ The 1 Hodges v. Windham, Peake, 39. 2 Stone v. Stone, 3 Notes Cas. 278, 282, 1 Robertson, 99. See remark of Sir John Nicholl, in Rogers v. Rogers, 3 Hag. Ec. 57, 5 Eng. Ec. 13, 20. [311 ] § 339 GENERAL VIEW OF DIVORCE. [BOoK Iv. Ecclesiastical Court,” he said, “requires two things, — that a man shall come with pure hands himself, and shall have ex- acted a due purity on the part of his wife; and, if he has re- laxed with one man, he has no right to complain of another.” 1 § 338 a. Plainly the views of Dr. Lushington and of Lord Stowell, as expressed in the extracts given in the last section, are correct in morals and in law, as general propositions, and as applied to the cases then before them. Yet few general propositions are found to be so exact, and at the same time so broad, as to meet even the legal justice, more especially therefore the moral and social justice, of every case possible to arise in the future. . Il. Proofs and Practice. § 339. Let us now, recollecting that connivance is in essence the corrupt intent of the mind, without which intent it cannot exist,? proceed to a consideration of the evidence establishing it. And here we notice a distinction between connivance and condonation, which latter leads to the same legal consequence. Condonation may exist without blame, while connivance necessarily implies guilt; therefore to establish connivance requires evidence more grave and conclusive, than to establish condonation.2? The burden of proof is of course on the party setting up the connivance; and the testimony must be strongly inculpatory,* admitting of no dispute In the language of Sir John Nicholl, “it cannot readily be presumed that any husband would act so contrary to the general feelings of man- kind, as to be a consentient party to his own dishonor.”® Yet * Lovering v. Lovering, 3 Hag. Ec. 85, 5 Eng. Ec. 27, 28. 2 Ante, § 333. j * Turton v. Turton, 8 Hag. Ec. 338, 350, 5 Eng. Ee. 130, 136. * Croft v. Croft, 8 Hag. Ec. 310, 5 Eng. Ec. 120, 121; Phillips v. Phillips, 1 Robertson, 144. ° Turton v. Turton, supra; Rix v. Rix, 3 Hag. Ec. 74, 5 Eng. Ec. 21; Phillips v. Phillips, 1 Robertson, 144, 156. ® Rogers v. Rogers, 3 Hag. Ec. 57, 5 Eng. Ec. 13, 16. [312] CHAP. XVIII.] CONNIVANCE AND COLLUSION. § 341 a rule of evidence, similar to the familiar one that it is not necessary to prove adultery in time and place, applies here; namely, that a specific act of conniving at a specific act of adultery need not be shown, general connivance being suffi- cient? Indeed this last proposition flows necessarily from the doctrine before discussed,’ that connivance at one act and with one man is legally equivalent to connivance at every subsequent act with all men. § 340. The proof of connivance, when especially of the merely consenting kind,* is seldom direct; but the facts, like others resting on circumstantial evidence, are established by a variety of attendarit facts, often trifling in themselves, yet convincing in combination® If the combined attendant facts are equivocal, not necessarily showing a guilty intent to con- nive, whatever other error or weakness they indicate, they are insufficient; for such intent must be proved, not left to conjecture. In the language of Sir Herbert Jenner Fust, also, “what amounts to proof of actual knowledge and concurrence is a question which depends upon the circumstances of each. case; but, without intentional concurrence or corrupt conniv- ance, there is no bar.”7 So, in examining the authorities, the words of the courts should be considered as used in respect to the particular cases under discussion, else misapprehension will arise? § 341. In deciding whether a husband had connived at his 1 Caton v. Caton, 13 Jur. 431, 432; post, § 422. ? Moorsom v. Moorsom, 3 Hag. Ec. 87, 5 Eng. Ec. 28. But see Phillips v. Phillips, 1 Robertson, 144, 162. 3 Ante, § 337-338 a. * Ante, § 333. * Moorsom v. Moorsom, 3 Hag. Ec. 87, 5 Eng. Ec. 28; Rogers v. Rogers, 3 Hag. Ec. 57, 5 Eng. Ec. 13, 15. ® Phillips v. Phillips, 1 Robertson, 144, 157, 158. But see ante, § 334 and. note. 7 Phillips v. Phillips, 10 Jur. 829, 832. 8 Phillips vy. Phillips, 1 Robertson, 144, 156; ante, § 15. 27 [313] § 342 GENERAL VIEW OF DIVORCE. [Boox Iv. wife’s adultery, as alleged by her in answer to his prayer for divorce, Dr. Lushington pursued the following order: 1st, What acts were done by the wife. 2d, What came to the knowledge of the husband. 3d, What might reasonably have come to his knowledge ; or, in other words, supposing reason for inquiry existed, what might with ease have been discov- ered. 4th, What the. husband did do, and what he did not do.!| This method was a good one in the particular case, and undoubtedly it will hereafter be found adapted to other cases. But no worn road of travel is laid through all the field of the future, to be pursued uniformly to the disregard of ways dis- cernible in the particular instances. § 342. To estimate properly evidence tending to establish. connivance, we must sometimes consider the relative situation and duties of husband and wife. The law imposes on the husband the obligation to watch over the morals of his wife ; and protect her against associations which might expose to hazard her purity, or, by lowering her standard of virtue, pre- pare the way for the approaches of the seducer.2 While therefore his want of attention to her associates, morals, and 1 Phillips v. Phillips, 1 Roberston, 144; 8. c. in Arches Court, 10 Jur. 829, 4 Notes Cas. 523; affirmed by Jud. Com. of Privy Council, June 29, 1847. * Harris v. Harris, 2 Hag. Ec. 376, 4 Eng. Ec. 160,177; Hamerton v. Hamerton, 2 Hag. Ee. 8, 4.Eng. Ec. 13,15. In Crewe v. Crewe, 3 Hag. Ec. 137, 5 Eng. Ec. 45, 50, Lord Stowell said: “ The general mode in which these parties lived together is extraordinary, and not unimportant. There was no formal separation, yet as much estrangement as can well consist with the marriage state. She is allowed to go to Bath, to Brighton, and to other public places, without the husband being there for more than a night or two; the court cannot compel the husband, even if he has no office nor profession that prevents him, to be constantly with his wife; but every man must ob- serve, that this husband did not give his wife the benefit of his care. I do not say that the husband is to dog his wife at every step with sullen and gloomy suspicion; but the protection and comfort of his society are to be afforded to a person so closely connected with him, and in whose conduct his happiness, as well as her own, is involved.” And see Poynter Mar. & Div. 228, 229. [314] CHAP. XVIII. | CONNIVANCE AND COLLUSION. § 343 conduct, or even his introducing the paramour to her, is not of itself connivance, it may be strong, sometimes satisfactory, evidence of it! But the wife is said not to be the guardian, to the same extent, of her husband; and, though connivance may be established against her, by circumstantial as well as by direct proof, yet it is not always inferred from facts which would be ample the parties being reversed.2_ Therefore where the husband had committed adultery with his wife’s sister, and it had come to the knowledge of the wife; who, afterward, for particular reasons, permitted this sister to accompany them to India, and to live in the same house with them; she was held, under the peculiar circumstances of the case, not barred of her, remedy for his subsequent adultery with this sister. Though her conduct was deemed imprudent, it was thought not necessarily to proceed from an evil intent2 And Dr. Lushington once refused to infer connivance against the wife ; though, for the purposes of the decision, he assumed that she had voluntarily cohabited with her husband in harmony a year, and afterward had forborne to bring her suit for eight years, during all which time she had knowledge of the adul- tery,t— conduct abundantly sufficient to bar the husband, were the parties reversed. § 343. Mere coolness by the husband, and his inattention 1 Rix v. Rix, 3 Hag. Ec. 74, 5 Eng. Ec. 21; Gilpin v. Gilpin, 3 Hag. Ec. 150, 5 Eng. Ec. 58; Moorsom v. Moorsom, 3 Hag. Ec. 87, 5 Eng. Ec. 28; Stone v. Stone, 3 Notes Cas. 278, 808, 309, 1 Robertson, 99,101; Michelson v. Michelson, 3 Hag. Ec. 147, 5 Eng. Ec. 56; Crewe v. Crewe, 3 Hag. Ec. 123, 5 Eng. Ec: 45; Dillon v. Dillon, 3 Curt. Ec. 86, 7 Eng. Ec. 377; Graves v. Graves, 3 Curt. Ec. 235, 7 Eng. Ec. 425; and Hoar v. Hoar, 3 Hag. Ec. 187, 5 Eng. Ee. 51. 2 Poynter Mar. & Div. 231, and Ruding v. Ruding, ib. note; Angle v. Angle, 12 Jur. 525. 2 Turton v. Turton, 3 Hag. Ec. 338, 5 Eng. Ec. 130. The court in this “case intimated, that, even if connivance had been proved, the wife might not be barred thereby, because the adultery was incestuous. * Angle v. Angle, supra. . 5 See post, § 345. [315] § 343 GENERAL VIEW OF DIVORCE. [BOOK Iv. to the comforts of the wife, seem not to be even admissible in evidence, as sustaining the charge against him of having connived at her adultery. And, observes Dr. Lushington: “1 know of no authority for saying, that coarse and even brutal behavior, obscene and disgusting language, entire disregard of decorum, will alone constitute connivance. Such conduct is indeed most degrading to a gentleman, and offensive to all good feeling; but it does not necessarily, either de facto, or by intendment of law, prove that the husband acquiesced in his wife’s adultery. Even cruelty and desertion, though tending to induce the wife to disregard her own duties, are not con- nivance. Facts, to constitute connivance, must have a direct and necessary tendency to cause adultery to be committed or continued.” 2. Thus where, in Connecticut, a husband insti-. tuted his suit for divorce by reason of. his wife’s adultery, to which suit she set up the defence, that the adultery was com- mitted, if at all, through an understanding between him and the particeps criminis, for the purpose of laying a foundation for the divorce; she was not permitted, in support of this -allegation, to introduce testimony of his having, for a consid- ‘erable time, treated her unkindly, and inflicted acts of cruelty ; either, first, as proving the connivance; or, secondly, as re- pelling the presumption against it, which arises from the mar- riage relation2 Yet it is difficult to resist the conviction, that facts like the foregoing may, in a proper case, be admitted, when offered in connection with other facts; though, standing ‘alone, they are so clearly insufficient as perhaps to be irrel- evant. For example, while a husband may beat and abuse his wife, and not connive at her adultery ; yet, if there are in- dependent circumstances directly pointing to the connivance charged, the conclusion may be more easy if it is then further shown, that he has lost his affection for her, and so is proba- bly desirous of getting rid of her. Thus we shall see, in a ? Moorsom v. Moorsom, 3 Hag. Ec. 87, 5 Eng. Ec. 28. 2 Stone v. Stone, 1 Robertson, 99, 101, 3 Notes Cas. 278, 308, 309. 3 Austin v. Austin, 10 Conn. 221. [ 316 ] . CHAP. XVIII] CONNIVANCE AND COLLUSION. § 344 subsequent chapter, that evidence of cruelty is admissible in proof of adultery ;1 because a husband whose love for his wife has departed is likely to seek unlawful:pleasures. "What effect cruelty may have as a recriminatory plea will be con- sidered in its proper place. § 344. Obviously there can be no connivance at any act, without knowledge of its existence; and so of its proximate causes. Therefore in examining the conduct of a husband on the question of his alleged connivange at his wife’s adultery, we should consider what notice of it he had, or what suspicion of behavior in her tending to it? And Dr. Lushington went in one case so far as, after a review of the authorities, to say: “There must be knowledge, or presumed knowledge, of the adultery, or improper familiarities leading thereto; not finding any evidence of this description, I pronounce for the separation.” Thence it follows, that, if the parties were living separate at the time of the adultery committed, and no improper familiarities are shown to have taken place during their cohabitation, connivance will not be presumed, without the clearest possible evidence of intention and consent. On the other hand, while the cohabitation continues, if the hus- band receives a caution concerning the conduct of his wife? or if he sees what a reasonable man could not see without alarm,® or if he knows she has been guilty of antenuptial incontinence,’ or if he has himself seduced her before mar- 1 Post, § 431, 432. 4 Hoar v. Hoar, 3 Hag. Ee. 137, 140, 5 Eng. Ec. 51, 53; Rogers v. Rog- ers, 3 Hag. Ec. 57, 5 Eng. Ec. 13, 18, 19, 20; Timmings v. Timmings, 3 Hag. Ec. 76, 5 Eng. Ec. 22; Lovering v. Lovering, 3 Hag. Ec. 85, 5 Eng. Ec. 27; Crewe v. Crewe, 3 Hag. Ec. 123, 5 Eng. Ec. 45; ante, § 341. 3 Phillips v. Phillips, 1 Robertson, 144, 164. * Rogers v. Rogers, 3 Hag. Ec. 57, 72, 5 Eng. Ec. 13, 20. 5 Dillon v. Dillon, 3 Curt. Ec. 86, 7 Eng. Ec. 377. 6 Moorsom v. Moorsom, 3 Hag. Ec. 87, 106, 5 Eng. Ec. 28, 37. 7 Best v. Best, 1 Add. Ec. 411; s. c. in Arches Courf, cited Poynter Mar. & Div. 230, note; Graves v. Graves, 3 Curt. Ec. 235, 7 Eng. Ec. 425. az° [317] § 345 GENERAL VIEW OF DIVORCE. [Book Iv. riage,! whereby he is put upon his guard respecting her weak- ness, — he is called upon to exercise a peculiar vigilance and care over her; and, if he sees what a reasonable man could not permit, and makes no effort to avert the danger, he must be supposed to see and mean the consequences. Yet this tule should be applied with due allowance for defective per- ception, dulness of capacity, overweening confidence, and the like? § 345. So, while a’ man may forgive the adultery of his wife already committed,? without thereby licensing her to commit future adulteries, yet too great a. facility of condona- tion amounts to a general license, and sufficient proof of his connivance at her subsequent misconduct. And,in one case, Lord Stowell held, under the circumstances of the case, that, where the wife had committed adultery on the first of three successive nights; and the husband, knowing and having full proof of this, slept with her on the second, without any rea- son to believe she had repented of the offence; he not only condoned thereby the previous adultery, but he could not take advantage of her further adultery on the third night, being presumed to have given to it his consent. On the other 1 Dillon v. Dillon, supra. * Moorsom v. Moorsom, supra. ® Lovering v. Lovering, 3 Hag. Ec. 85, 5 Eng. Ec. 27; Anichini v. Ani- chini, 2 Curt. Ec. 210, 7 Eng. Ec. 85, 86. * Timmings v. Timmings, 3 Hag. Ec. 76, 5 Eng. Ec. 22; Dunn v. Dunn, 2 Phillim. 408, 411, 1 Eng. Ec. 280, 284, where Sir John Nicholl says: “If the adultery is forgiven with such extreme facility as to show no sense of in- jury, and no care is taken to prevent it from happening again, then the hus- band has no ground of complaint, for he has encouraged the adultery by his conduct.” But see s. c. in Court of Delegates, 3 Phillim. 6,1 Eng. Ec. 353. And see observations of Sir John Nicholl, in Durant v. Durant, 1 Hag. Ec. 738, 8 Eng. Ec. 310, 316, 319, 323; Lovering ». Lovering, 3 Hag. Ec. 85, 5 Eng. Ec. 27; Westmeath v. Westmeath, 2 Hag. Ec. Supp. 1, 4 Eng. Ec. 238, 290; Walker v. Walker, 2 Phillim. 153. ° Timmings v. Timmings, supra. See also Phillips v. Phillips, 1 Robert- .Son, 144, 158; ante, § 342 and note; Snow v. Snow, 2 Notes Cas. Supp. 1, 15. [318 ] CHAP. XVIII. ] CONNIVANCE AND COLLUSION. § 346 hand, when the condonation has proceeded from the wife, it has been considered rather a virtue in her; and the courts have refused to infer connivance from it against. her, where, under like circumstances, they would infer it against the husband.? § 346. So the husband’s conduct after he knows adultery to have been committed by the wife, may be evidence of his con- nivance, but it is not connivance itself. Of this nature is culpable indifference to it ;2 shown, for instance, by his delay to institute proceedings for divorce,’ or by his neglect to in- 1 Angle v. Angle, 12 Jur. 525; ante, § 342. See post, § 346, note. And see observations of Sir John Nicholl, in Westmeath v. Westmeath, 2 Hag. Ec. Supp. 1, 4 Eng. Ec. 238, 290. 2 Stone v. Stone, 1 Robertson, 99, 3 Notes Cas. 278, 307. ® Kirkwall v. Kirkwall, 2 Hag. Con. 277,4 Eng. Ec. 541. This was a suit by the wife, alleging her husband’s adultery; and her delay to institute the suit was held not to be sufficient evidence of her connivance. Lord Stowell observed: ‘“ There is nothing in the facts charged to show, that Lady Kirkwall’s suspicions must, of necessity, have been excited, or that the adultery might not have taken place without her knowledge; but sup- posing that she was acquainted with it, though a husband is bound to take prompt notice of the infidelity of his wife, and is liable to have his neglect for so doing urged against him, when afterwards seeking his legal remedy ; yet this doctrine is not to be pressed against a wife, unless, in very par- ticular cases. Even in the case of a husband, it is not invariably expected that he should show the time when the charge first came to his knowledge. It might be prudent, and expedient for the success of his suit, that he should do so, but it is not absolutely necessary — something must be allowed to convenience. Certainly a wife would not be justified in living in the same house with her husband’s concubine, sharing the turpitude of his crime, and partaking of a polluted bed; but she might have a reasonable hope of his return to her society, and forbearance, under this spes recuperandi, has never yet been held to constitute a bar to her legal remedy, when every hope of that kind should be extinct. I, therefore, admit this libel to proof.” And see, in connection with this case, Ferrers v. Ferrers, 1 Hag. Con. 130, 4 Eng. Ec. 354. See giso Angle v. Angle, 12 Jur. 525, 634, 640, 641; ante, § 342, 345 ; Reeves v. Reeves, 2 Phillim. 125,1 Eng. Ec. 208; Ruding -y. Ruding, 1 Hag. Ec. 740, note, 3 Eng. Ec. 314; Durant v. Durant, 1 Hag. Ec. 733, 760, 3 Eng. Ec. 310, 323; Walker v. Walker, 2 Phillim. 153. [319] § 346 GENERAL VIEW OF DIVORCE. [Boox Iv. terfere while she is living, with his knowledge, in adultery. Thus where the wife had resided with her children in a gentleman’s house, of which she was treated as the mistress, and had there been delivered of three children; without any express permission by the husband appearing, but without his sufficiently accounting for his absence, or providing for her, or interfering with such residence ; Sir William Wynne was of opinion, that hé must be presumed to have consented to the adultery It may be uncertain, however, whether the courts of the present day, in the United States, would give full effect to precedents of this nature, though they would no doubt yield them a considerable degree of authority. For when a wife has committed adultery, the husband is under no further obligation, legal or moral, to support her ; and how can it be said, that he connives at her further adultery, merely because he refuses to pay her an annuity while living in it, or because he exercises no marital control over her person, after he has rightfully ceased to afford her his marital protec- tion? There are several of the older English cases which 1 Crewe v. Crewe, 3 Hag. Ec. 123, 131, 5 Eng. Ec. 45, 49. In this case Lord Stowell remarked: “ Another ground of objection is the connivance, or toleration, of the husband ; he may have an insensibility to his own honor, and, from a conformity to the corrupt manners of the world, may have no wish to pursue a legal remedy, or may not think it worth pursuing; and, if such a person, after a long continuance of toleration, of himself awakes, or is compelled by the clamor and outcry of the world to awake, he awakes too late. Ifthe adultery has gone on for a length of time, he does not stand before the court in the favorable light of a person acting on the spur of honest feeling, whom the law delights to succor; he has made up his mind to some other satisfaction. Ido not mean by this to say, that the husband is immediately to rush into court upon suspicion ; he must wait for adequate proof, but he is to show his vigilance ; he is not to lie by, longer than to ob- tain proof; if he does, his lethargy will be fatal to any application that he may make; whatever his motives may be for coming afterwards, if it be proved that there has been a long course of criminal conduct of which he was cognizant, or of which by law and by presumption he must be supposed to have been cognizant, he cannot receive relief.” * Michelson v. Michelson, 3 Hag. Ec. 147, 5 Eng. Ec. 56. And see Crewe v. Crewe, supra; Whittington v. Whittington, 2 Dev. & Bat. 64. [ 320 ] CHAP. XVIII. ] CONNIVANCE AND COLLUSION. § 348 magnify the office of husband somewhat beyond modern American opinions; making the wife a more complete satellite than either the facts of actual life, or the general sentiment, would indicate. _§ 347. Articles of separation may be so framed as to con- stitute a license to the wife to live in adultery ; and, if such is their true import, and is likewise the intent of the husband, he cannot have the remedy of divorce for the adultery to which he has thus consented. But suppose this intent is fairly deducible from the articles themselves, still the deduc- tion may be controlled by counter evidence, outside, it seems, of the articles; and it must be so controlled, or he cannot have a divorce.) A deed of separation containing the usual covenants, that the wife may dwell. where and in such manner as she pleases, and be free from the restraint of her husband; that he will not bring against her a suit for the restitution of conjugal rights ; and others of like import; will not be construed as a consent to her living in adultery.” § 348. In England, previous to Stat. 20 & 21 Vict. c. 85, it was customary, not necessary, for the husband, learning his wife’s adultery, to sue at common law the particeps criminis, before proceeding in the Ecclesiastical Court; and then plead in this court the verdict, which, if in his favor, was considered as tending to rebut any presumption of connivance. Lord Stowell once remarked: “ The verdict, giving such large dam- ages, it is forcibly contended, rebuts the argument of conni- vance ; for it shows, either that no such defence was attempted, or that it was not proved. It has been often observed, that a verdict to the disadvantage of the husband is strong evidence; because he is a party to both proceedings, and therefore such a verdict will operate in other courts; but a verdict against the adulterer is slight evidence against the wife, who is no 1 Barker v. Barker, 2 Add. Ec. 285, 2 Eng. Ec. 307. ,? Sullivan v. Sullivan, 2 Add. Ec. 299, 2 Eng. Ee. 314; Richardson v. Richardson, 1 Hag. Ec. 6, 3 Eng. Ec. 13, 15. [321] § 349 GENERAL VIEW OF DIVORCE. [BooK Iv. party to the action, and who has no control in the conduct of it. At the time of the trial she is often at variance with the adulterer: he may havé good reasons not to set up a defence which she may sustain. The defence of connivance is haz- ardous where the action is for damages, for it is to be proved by circumstances, and if it should fail it will inflame the damages.”! § 349. A defendant may set up connivance in plea, with- out admitting the truth of the plaintiff’s allegation, or may join such plea with a denial of guilt.2 On the other hand, a plaintiff is bound so to present his case as not to show him- self barred of his remedy ;® and, in the ecclesiastical practice, he may, if he choose, introduce into his libel any matter which will make the history natural and consistent, and fore- stall suspicion of connivance; “ for the party ought not to be forced ultimately to depend, for an explanatiori of his conduct, on the ingenuity of his counsel, or the discrimination of the court.” The case may be such, that the plaintiff’s only safety is in this form of pleading; because, if the matter of defence appears, either by his own admissions upon the rec-. ord, or by the testimony of his witnesses, the court of its own motion, or moved by the opposing counsel, will take the objection at the hearing, though it appears not in allegation® * Moorsom v. Moorsom, 3 Hag. Ec. 87, 5 Eng. Ec. 28, 37. And see Rix v. Rix, 3 Hag. Ee. 74, 5 Eng. Ec. 21, 22; Crewe v. Crewe, 8 Hag. Ec. 123, 133, 5 Eng. Ec. 43, 49; Phillips v. Phillips, 1 Robertson, 144, 156; Halford v. Halford, Poynter Mar. & Div. 200, note; Dunn v. Dunn, 2 Phillim. 403, 1 Eng. Ec. 280, 285. Concerning this species of evidence, see also post, § 443 et seq. z ® Rogers v. Rogers, 3 Hag. Ec. 57,5 Eng. Ec. 18; Forster v. Forster, 1 Hag. Con. 144, 4 Eng. Ec. 358, 360; Moorsom v. Moorsom, 8 Hag. Ee. 87, 5 Eng. Ec. 28; Gilpin v. Gilpin, 3 Hag. Ec. 150, 5 Eng. Ee. 58; Austin v. Austin, 10 Conn. 221. ® Crewe v. Crewe, 3 Hag. Hc. 128, 125, 5 Eng. Ec. 45, 46. * Croft v. Croft, 3 Hag. Ec. 810, 812, 5 Eng. Ec. 120, 121. ® Crewe v. Crewe, 3 Hag. Hc. 123, 124, 5 Eng. Ec. 45,46; Turton v. Tur- ton, 3 Hag. He. 338, 5 Eng. Ec. 130; Smith v. Smith, 4 Paige, 432. [ 322] CHAP. XVIII.] CONNIVANCE AND COLLUSION. § 350 Yet it has been doubted, whether, even under the ecclesiastical practice, the defendant can set up connivance merely on inter- rogatories proposed by himself to the plaintiff’s witnesses; at all events the evidence must be unequivocal, and incapable of explanation, and the court will give the plaintiff oppor- tunity to explain it if he can. Still we shall find it difficult to see, how, if connivance, or any other defence, comes out in proof,? the court, as representing the public which does not plead, can refuse to give heed to the evidence, though the party could claim nothing. But perhaps this precise question can arise only in the peculiar practice of the Ecclesiastical Courts; permitting the testimony to be taken on the allega- tions of either party, before the adverse party has closed his pleadings; so that, while the right to cross-examine on this point was unquestioned in England, under the ecclesiastical system, it may not, probably does not, exist in this country III. Collusion. § 350. Collusion, in the matrimonial law, is an agreement between husband and wife, for one of them to commit, or appear to commit, a breach of matrimonial duty, for the pur- pose of enabling the other to obtain the legal remedy of divorce or separation, as for a real injury. | Where the act has not been done, collusion is a real or attempted fraud upon the court; where it has, it is also a species of connivance; in either case, it is a bar to any claim for divorce. In Crewe. v. Crewe, Lord Stowell is reported to have said: “ Collusion may exist without connivance, but connivance is (generally) collusion for a particular purpose;”* doubtless a clerical 1 Turton v. Turton, supra. 2 Ante, § 314. 5 See post, § 383. “ Lord Stowell, in Crewe v. Crewe, 3 Hag. Ec. 123, 5 Eng. Ee. 45, 48; 1 Fras. Dom. Rel. 703. 5 Crewe v. Crewe, supra. [ 323 J § 352 GENERAL VIEW OF DIVORCE. [BOOK Iv. error, or mistake of the reporter, corrected by a substitution of words, thus: “Connivance may exist without collusion, but collusion is (generally) ‘connivance for a particular pur- pose.” § 351. Collusion, being a species of conspiracy, to which two minds must consent, cannot be committed by the defend- ant alone; neither will any conduct amount to it, not impli- cating the party against whom it is set up.) Therefore if the party guilty of a matrimonia] offence wishes to be di- vorced, this is no collusion; if he committed the offence with the expectation of thereby stimulating the innocent party to apply for divorce, as well as of furnishing foundation for it; or if, when a cause exists, both parties wish to have the matrimonial relation suspended or dissolved, — none of these things, no analogous things, will constitute collusion? The question is, whether the plaintiff has suffered a real injury, and bond fide seeks relief.2 Most unjust would the law be, if it should refuse the remedy simply because the defendant desired it should be applied. A proposition like this is tan- tamount to the absurdity of allowing a divorce, when the defendant has done a certain amount of matrimonial wicked- ness; but, when he adds another grain to the lump, refus- ing it. § 352. Collusion, no more than connivance, will be pre- sumed without proof, or matter appearing from which it may be affirmatively inferred.’ But the vigilance of the court may 11 Fras. Dom. Rel. 703. * Utterton v. Tewsh, Ferg. 23, 4 Eng. Ec. 347, 358; Kibblewhite v. Row- land, Ferg. 226, 233, 3 Eng. Ec. 406, 408; Sugden v. Lolly, Ferg. 269, 3 Eng. Ec. 426 ; Note (B), Ferg. 368, 8 Eng. Ec. 482. ° Crewe v. Crewe, 3 Hag. Ec. 123, 5 Eng. Ec. 45, 48, 49; Brealy v. Reed, 2 Curt. Ec. 833, 7 Eng. Ec. 328; Shelford Mar. & Div. 738. See Mansfield. v. Mansfield, Wright, 284. 4 Ante, § 339. ® Pollard v. Wybourn, 1 Hag. Ec. 725, 3 Eng. Ec. 308; Deane v. Deane, 12 Jur. 63, 64. [324] CHAP. XVIII] CONNIVANCE AND COLLUSION. § 353 be aroused by slight circumstances, quite inadequate to prove collusion, yet calling for peculiar scrutiny in respect to every part of the evidence. Thus, Lord Stowell once remarked : « There are circumstances in this case which alarm the jealousy of the court, as appearing a little suspicious ; there is no plea on the part of the wife, nor are any interrogatories adminis- tered. The verdict, which has been pleaded, was obtained nearly on a default, and without any defence. This proves a great facility, at least, and will make the court more vigilant to see that the two main points of such cases are sufficiently proved ; namely, the criminal act, and that the person against whom the proof of that act is established, was the wife.” And, as we have already seen,? when the plaintiff relies in whole or in part on the confessions of the defendant, he may find it necessary to show aflirmatively, there was no collusion, to give strength to the confessions? In an Ohio case, in which the suspicion of the court was aroused, but there was still no sufficient proof of collusion, the plaintiff was permit- ted either to have his bill dismissed without prejudice, or con- tinued, that he might produce further evidence, as he should be advised. He elected the latter course; and, on a hearing at a subsequent term, a decree was entered in his favor.4 Still the court is bound to grant the divorce, unless the collusion is established in evidence; for mere suspicion will no more jus- tify the withholding of action, than it will justify action® § 353. In Scotland, to prevent collusion, the pursuer is in ? Williams v. Williams, 1 Hag. Con. 299, 4 Eng. Ec. 415. * Ante, § 309. ® Greenstreet v. Cumyns, 2 Phillim. 10, 1 Eng. Ec. 165, 166; 5. 0. 2 Hag. Con. 332. * Wolf v. Wolf, Wright, 243. See also (and quere) Smith v. Smith, Wright, 643; Friend v. Friend, Wright, 639. 5 Baily v. Baily, 1 Lee, 536. See Emmons v. Emmons, Walk. Mich. 532; Hanks v. Hanks, 3 Edw. Ch. 469; a rule of court (N. Y. Rule, 168) made it necessary for the plaintiff to aver, “that the adultery charged in such bill was committed without hi3 consent, connivance, privity, or pro- curement.” 28 - [325] § 353 GENERAL VIEW OF DIVORCE. [BooK Iv. all cases required to take what, in the language of the Scotch law, is termed the “ Oath of Calumny.” “It declares,” says ‘Mr. Fraser, “ that he has just cause to insist on the action, be- cause he believes (supposing it to be divorce for adultery), that the defender has been guilty of adultery, and that the libel is true; that there is no collusion between the parties to obtain the decree, and no agreement between any other persons on his behalf for that purpose. .... Prior to the emission of the oath, it is competent for any party having an interest, such as the creditors of the defender, or for the court ez officio, to show that there is collusion; and this may be by the examination of witnesses, or letters, or the parties themselves. After the oath of calumny has been emitted, it is incompetent to inquire further as to whether there was collusion, and a reduction of the decree of divorce on this ground would be incompetent.” } Mr. Fergusson has said, that “the parties who commit this offence against the course of justice have such facility of con- cealment, and the inquiry is of so difficult and unpleasant a nature, that the records of the Consistorial Courts of Scot- land do not, perhaps, exhibit a single attempt to detect this malpractice, which has been successful in the result.” 2 1 1 Fras. Dom. Rel. 701, 702. 2 Ferg. 363, 3 Eng. Ec. 482; 1 Fras. Dom. Rel. 703. Something like the oath of calumny used to be required of the applicant for divorce before the House of Lords. Simmons’s Divorce Bill, 12 Cl. & F. 339. And the new divorce statute of England, 20 & 21 Vict. c. 85, contains some provisions relating to this matter. [ 326 ] CHAP. XIX. ] CONDONATION. °° § 354 a CHAPTER XIX. CONDONATION. Srcr. 354, 854.4. Introduction. 855-864. The General Doctrine of Condonation. 865-871. Further and attendant Views. 871a-880 a, Conditional Quality of Condonation. 881-387. The Evidence and Practice of the Courts. § 354. THe next defence of a general nature, to be consid- ered, is condonation. It differs from connivance the same as a plea in discharge of -a contract differs from a plea denying its original obligation. In connivance, no injury is done to the party complaining; in condonation, the injury is forgiven. Condonation therefore, as applied to the subject under discus- sion, is the conditional forgiveness or remission, by the husband or wife, of a matrimonial offence which the other has com- mitted. The nature of the condition will be considered fur- ther on. While the condition remains unbroken, condonation, on whatever motive it proceeded, is an absolute bar to the remedy for the particular injury condoned. The doctrine has its foundation in natural justice, and prevails in most civilized countries.” § 3544. In discussing this subject, we shall examine the 1 Ferrers v. Ferrers, 1 Hag. Con. 130, 4 Eng. Ec. 354; D’Aguilar v. D’Aguilar, 1 Hag. Ec. 773, 781, 3 Eng. Ec. 329, 334; Westmeath v. West- meath, 2 Hag. Ec. Supp. 1, 4 Eng. Ec. 238, 289; Worsley v. Worsley, 2 Lee, 572, 6 Eng. Ec. 249; Smith v. Smith, 4 Paige, 432; Durant v. Durant, 1 Hag. Ec. 733, 3 Eng. Ec. 310, 328; Snow v. Snow, 2 Notes Cas. Supp. 1, 12. 2 Johnson v. Johnson, 4 Paige, 460, 1 Edw. Ch. 439; 1 Fras. Dom. Rel. 462, 666. See note to Best v. Best, 1 Add. Ec. 411, 2 Eng. Ec. 158, 159; Quincy v. Quincy, 10 N. H. 272; Anonymous, 6 Mass. 147. [327 ] § 357 GENERAL VIEW OF DIVORCE. [BOOK Iv. following matters: I. The General Doctrine of Condonation ; Il. Further and attendant Views; III. Conditional Quality of Condonation; IV. The Evidence and Practice of the Courts. J. The General Doctrine of Condonation. § 355. Condonation, like connivance, rests, in a philosophi- cal and exact view of the matter, in the mind. But there have been so many technical rules adopted, for the purpose of de- termining when the condonation has passed, that they, rather than the mere abstract doctrine, must lead the following dis- cussion. § 356. The forgiveness now treated of may pass in words; that is, the condonation may be expressed in language ; or it may arise, by implication, out of acts done In the former case, little difficulty can attend the subject; but, when the condonation is to be inferred, the question may create much embarrassment, being complicated of interwoven fact and technical law. § 357. A plain proposition is, that the forgiveness cannot ‘take place without a knowledge of the existence of the thing forgiven2 When, however, one of the married parties has received knowledge of the breach of matrimonial duty by the other, if such party continues or renews the cohabitation, he is presumed, in law, to have condoned the offence ;? for no 1 Quincy v. Quincy, 10 N. H. 272; Beeby v. Beeby, 1 Hag. Ec. 789, 3 Eng. Ec. 338, 340; Snow v. Snow, 2 Notes Cas. Supp. 1, 12. 2 Durant v. Durant, 1 Hag. Ec. 733, 751, 3 Eng. Ec. 310, 319; Popkin v. Popkin, 1 Hag. Ec. 768, note, 4 Eng. Ec. 325, 326. ' 3 Delliber v. Delliber, 9 Conn. 233; Williamson v. Williamson, 1 Johns. Ch. 488; Dysart v. Dysart, 1 Robertson, 106, 108; Phillips v. Phillips, 4 Blackf. 131; Wood v. Wood, 2 Paige, 108; McDwire v. McDwire, Wright, 354; Threewits v. Threewits, 4 Des. 560; Johnson v. Johnson, 4 Paige, 460; Mayhugh v. Mayhugh, 7 B. Monr. 424; Hall v. Hall, 4 N. H. 462; Quincy v. Quincy, 10 N. H. 272; Barnes v. Barnes, Wright; 475 ; Questel v. Questel, [328] CHAP. XIX.] CONDONATION. § 358 man—so says the law—would take a delinquent wife to his bed, unless he had forgiven her.t_ Probably this pre- sumption cannot be rebutted by showing a simultaneous agreement or intent for the cohabitation not to operate as condonation; since, though the point appears not to have been directly adjudicated, no instance of its being maintained is found in the books; while, if it were allowed to prevail, it would place the marriage relation of the parties, as to its con- tinuance, in their own hands, and they could afterward treat it practically as a mere temporary arrangement, contrary to the general policy of the law. And Parsons, C. J., remarks: “Tt would be injustice to the wife, and immoral in the hus- band, to claim and enjoy as his peculiar marital rights the society of his wife, after a knowledge of her offence, and after- wards to cast her off for that same offence.” § 358. But let us inspect more minutely the principles just stated. There must, we said, be a knowledge of the offence.3 This implies, first, the existence of it; secondly, a belief in its Wright, 491; Cooper v. Cooper, 10 La. 249; 1 Fras. Dom. Rel. 666; Snow v. Snow, 2 Notes Cas. Supp. 1,12. In Evans v. Evans, 7 Jur. 1046, where the bringing of a suit for the restitution of conjugal rights, and a cohabita- tion following, were held to be a condonation; Dr. Lushington seemed to regard even the institution of the suit alone as sufficient, without the co- habitation. His words are: “If the treatment of a wife be such as to render the return to cohabitation unsafe, the commencing of a suit for the restitution of conjugal rights is a perfect condonation ; for surely, if a husband has been guilty of conduct towards his wife endangering life and limb, it is rather an extraordinary mode of procuring redress to resort to a suit for the restitution of conjugal rights — to return to the very person whose con- duct has been the cause of the danger. I must say, that such a measure does create a very strong presumption that the wife never could have considered her life in danger, when she voluntarily seeks a forced return to that state where she will be exposed to a repetition of such conduct, and that without protection.” . p. query, Neeld v. Neeld, 4 Hag. Ec. 263, 268. 1 Beeby v. Beeby, 1 Hag. Ec. 789, 3 Eng. Ec. 338, 340. 2 Anonymous, 6 Mass. 147, 148. 3 Ante, § 357. 28* / £829] § 359 GENERAL VIEW OF DIVORCE. [Book Iv. existence. “The true import of the rule, in my opinion,” said Parsons, C. J., “is, that the cohabitation of the husband, after the commission of the offence, and after he believes, on proba- ble evidence, the guilt of his wife, is conclusive evidence of the remission. For he cannot be considered as having im- pliedly forgiven a crime which he does not believe to have been committed. And without that belief he cannot have knowledge of the crime; for he may have received the infor- mation without giving it credit.”! But people usually believe on sufficient grounds of belief presented: so presumes the law. Thus where a woman sued for divorce alleging her husband’s adultery, of which he had been convicted criminally ; and he showed in defence, that, after his conviction, she, with knowl- edge of it, lodged two or three nights with him in prison, where she had sexual intercourse with him; her prayer was denied, although it was urged for her that she might not have believed he was guilty? . § 359. Therefore the rule is usually stated to be, that the cohabitation, after probable knowledge of the offence, is a pre- sumptive remission of it.2 This probable knowledge has been said to exist where information of facts has been given by credible persons, speaking of what they have seen; particularly if the party afterward produces these persons as witnesses in the case, and by their testimony establishes the same facts.4 And where the husband’s witnesses, he being promoter in a suit for adultery, had told their story to his legal advisers in his pres- ence, yet he neglected for two years to institute proceedings, and cohabited with his wife meanwhile, he was held to have 1 Anonymous, 6 Mass, 147. And see Dillon v. Dillon, 3 Curt. Ec. 86, 114, 7 Eng. Ec. 377, 390. 2 Delliber v. Delliber, 9 Conn. 233. * Shelford Mar. & Div. 445; Dillon v. Dillon, 8 Curt. Ec. 86, 7 Eng. Ec. 377, 389; Best v. Best, in the Arches Court, Poynter Mar. & Div. 234, 235, note. * Poynter Mar. & Div. 232. [ 330 ] CHAP. XIX.] CONDONATION. § 360 possessed the knowledge which renders cohabitation a bar.! A fortiori, a plaintiff cannot continue the niatrimonial inter- course during the pendency of the suit,-without its working a condonation.2 Circumstances which excite suspicion merely, brought home to the mind of the party, will not alone amount to this probable knowledge.® § 360. Yet there are cases in which the husband was holden to have pardoned the adultery of his wife; at least, to have lost his right to complain of it; though the evidence of her misconduct, coming to his knowledge, was no more than sufficient to excite his vigilance, and put him on the inquiry. Thus, where a husband, having intimations and some evi- dence against his wife, neglected to make any investigation, and neglected to prevent a repetition of the injury; but con- tinued to cohabit with her, till she left him, and brought her suit for separation on the allegation of his cruelty ; and he, in the first instance, set up her adultery in defence merely, not praying for a separation till a later stage of the proceeding; and the circumstances throughout showed him to have been willingly blind to her failings, and anxious to retain her whether she was guilty or not; the court held, that he was not entitled to have his prayer answered, though his charge of adultery was proved against her, and hers of cruelty was not Yet we may observe, of this case, that it plainly em- braced a compound, not unusual in the English reports, of the two elements of condonation and connivance. Dr. Lushing- ton has said: “ The truth is, and much of the obscurity arises from the fact, that, in the various discussions on this subject, the line of distinction between condonation and other conduct which would equally bar a remedy, has not, and I might per- 1 Dobbyn v. Dobbyn, Poynter Mar. & Div. 233, note. 2 1 Fras. Dom. Rel. 668. ® Quincy v. Quincy, 10 N. H. 272; Kirkwall v. Kirkwall, 2 Hag. Con. 277, 4 Eng. Ec. 541. * Best v. Best, 1 Add. Ec. 411, 2 Eng. Ee. 158; 8.c.in the Arches Court, Poynter Mar. & Div. 234, note. [ 331 ] § 361 GENERAL VIEW OF DIVORCE. [BooK Iv. haps say could not, be perfectly observed. ‘Thus it is that condonation has been mixed up with that which, though it works the same effect; is totally dissimilar in its nature. Both husband and wife may so repeatedly forgive adultery, that the remedy is forfeited, the party showing an insensibility to the injury.”! We may observe also, that the above facts likewise disclosed what is sometimes technically called insincerity, — to be mentioned in a future chapter.? § 361. In Dillon v. Dillon, Dr. Lushington, debating the question of admitting an allegation responsive to the hus- band’s libel, observed: “ Although Dr. Dillon pleads, that he did not believe the information that his wife had slept, on the night of the 29th of December, with a strange man, at the inn at Gadshill ; he acts as if he did credit it, and he continues to cohabit with her on the very night of the day on which he receives the information. Now I have always understood the legal principle to be this: that, when a husband has re- ceived information respecting his wife’s guilt, and can place such reliance on the truth of it as to act on it, although he is not bound to remove his wife out of his house, he ought to cease marital cohabitation with her.” But, on the hearing of the case, this learned judge did not consider the point thus taken, absolutely conclusive against Dr. Dillon; though, on other grounds, he gave judgment for the defendant? If a person, the friend of an injured wife, makes investigation concerning an alleged adultery by the husband, and thereupon tells her there is no cause of suspicion, and she is therefore reconciled to him, she will be presumed to be then ignorant of the adultery, and so there will be no condonation.* 1 Snow v. Snow, 2 Notes Cas. Supp. 1,14. See Crewe v. Crewe, 3 Hag. Ec. 123, 132, 5 Eng. He. 45, 49; ante, § 345, 346 and note. ? Post, § 410 et seq. ® Dillon v. Dillon, 3 Curt. Ec. 86, 7 Eng. Ec. 377, 379, 389, 390. * Bramwell v. Bramwell, 3 Hag. Ec. 618, 5 Eng, Ec. 232, 240. [ 332 ] CHAP. XIX.] CONDONATION. § 362 ° § 862. Indeed it has been said,—and this appears to be the sounder view, in principle, — that, for cohabitation to bar as a condonation the husband’s remedy, it should be with his knowledge, not only of the offence committed,” but of his ability to prove it.! ‘Because, should he turn off his wife on the charge, which he is unable to make good in proof, however well he may know it himself, that she is guilty, for example, of adultery, — he would subject himself to pay for necessaries any person might furnish her; to the suit, in England, for the restitution of conjugal rights; to the suit, anywhere, for divorce, resulting in a decree against him for alimony, on the ground either of cruelty or desertion, such an act being a gross one of cruelty, though perhaps not alone sufficient ; and to the reproaches of the community in which he dwells, for having inflicted the heaviest injury on one whom he is sup- posed to be under the most extreme obligation to protect. Therefore to infer against him a forgiveness of his wife’s adultery, because he is unwilling to cast himself on such perils, for the sole purpose of becoming a matrimonial martyr, with- out the smallest prospect of accomplishing thereby any useful object, is to draw an inference as destitute of foundation in human nature or common truth, as the principle, acted upon, would be of any relationship to ordinary justice. In such a case, his cohabitation cannot properly be deemed “voluntary,” within the true meaning of the rule making voluntary cohabi- tation a bar2 “ A husband,” says Lord Stowell, “has sus- 1 Quincy v. Quincy, 10 N. H. 272, 274. 2 In Hofmire v. Hofmire, 7 Paige, 60, Chancellor Walworth seems to be of the opinion, that cohabitation, by the wife with her husband, after a private confession to her of an act of adultery which she is unable to prove, would not bar her suit for divorce, brought upon a subsequent discovery of the means of establishing his guilt. And he says: ‘ His private admission of the fact to her was not sufficient to authorize her to take any proceeding against him, or even to protect her friends for harboring her against his will, if she had then abandoned his bed and board.” See D’Aguilar v. D’ Aguilar, 1 Hag. Ec. 773, 3 Eng. Ec. 329, 337, where Lord Stowell says: “Tt is not shown she knew it so that she could legally prove it. If it was shown that he had avowed it to her,it might be a condonation as to that par- [ 333 ] § 363 GENERAL VIEW OF DIVORCE. [Boox Iv. picions—he has some intimations—he has enough to convince his own mind, but not to institute a legal case. In that distressing interval, his conduct is nice; and it is difficult to refrain from cohabitation, as the means of discovery would be frustrated ; and, if he continues cohabitation, it then be- comes liable to that species of imputation which has passed to the disadvantage of this gentleman :”1— “ Observations,” says Dr. Lushington, “ which apply to a case where there is no direct evidence of the fact, although there are circum- stances which render the fact probable ;” and it seems to be conceded, that, under such circumstances, the husband is not barred by continuing to cohabit with the wife? But where his ability to produce the proof is commensurate with his knowledge, there is no scope for this distinction. § 363. In the last chapter, we considered some circum- stances in which a party is held to connive at the adultery of the other party, because of being too free to forgive adultery committed. The substance of the doctrine there stated is, that, as a man may be charged with a credit procured by a third person, if formerly he has paid similar claims, though he gave in fact no express authority to the third person; so a husband, overlooking at once an adultery committed by his wife, or especially overlooking from time to time repeated adulteries, may be presumed to tacitly authorize her to follow her adulterous course. But, where no scope for this doctrine is found in the facts of a case, the cohabitation, to be a com- * ticular fact.” But in Timmings v. Timmings, 3 Hag. Ec. 76, 5 Eng. Ec. 22, 23, the same judge observes: “ Although, by the rules of law, a confession does not satisfy the mind of the judge, it must satisfy the mind of the husband, particularly when direct and unequivocal, as in the present instance. And what is his behavior upon it? His mother, in an interroga- tory, says, ‘he wished his wife to go from him — but, on the intercession * of friends, he consented to live with her.’ This, then, is a direct condona- tion.” 1 Elwes v. Elwes, 1 Hag. Con. 269, 292, 4 Eng. Ec. 401, 412. ® Dillon v. Dillon, 3 Curt. Ec. 86, 7 Eng. Ec. 377, 389. ® Ante, § 345. [ 334 J CHAP. XIX. ] CONDONATION. § 365 plete bar, must be with full knowledge of all the adultery ; and the forgiveness of one act is not the forgiveness of an- other. Indeed a party might consent to pardon a single offence committed under mitigating circumstances, yet not to. pardon more than one, much less, a series of offences! An insane person, on being restored to reason, may condone adultery committed during his insanity.” § 364. In circumstances wherein condonation is sufficiently inferred from cohabitation, there need not be a continued matrimonial intercourse; it is enough, at least with regard to the husband, if he has been once in bed with his wife, after knowledge of her adultery.2 It appears to be so also, in some circumstances, even with regard to the wife Yet the doc- trine thus stated is not absolute and free from exception; it is qualified in various ways and degrees, particularly as applied to the wife. In sections further on, this matter will be resumed ; and the reader should take into his consideration what is said there, in connection with what is said here. And an excuse may exist for a brief cohabitation, which would not apply to a longer one; a difference likewise, in respect to condonation, between adultery and cruelty. Il. Further and attendant Views. § 365. Where the husband and wife have separate beds, and no sexual intercourse, condonation is not always to be 1 D’Aguilar v. D’ Aguilar, 1 Hag. Ec. 773, 3 Eng. Ec. 329, 337; Durant v. Durant, 1 Hag. E.. 733, 3 Eng. Ec. 310; Turton v. Turton, 3 Hag. Ec. 338, 5 Eng. Ec. 130, 136; Bramwell v. Bramwell, 3 Hag. Ec. 618, 5 Eng. Ec. 232, 238. ? Parnell v. Parnell, 2 Phillim. 158, 160, 1 Eng. Ec. 220, 222. 3 Hutchison v. Hutchison, a Scotch case, cited 1 Fras. Dom. Rel. 667; Timmings v. Timmings, 3 Hag. Ec. 76, 5 Eng. Ec. 22; ante, § 345, 361; Snow v. Snow, 2 Notes Cas. Supp. 1, 14. * Delliber v. Delliber, 9 Conn. 233. See, however, Gardner v. Gardner, 2 Gray, 434; Armstrong v. Armstrong, 32 Missis. 279, 290, 298. 5 Post, § 368-371. 5 Snow v. Snow, 2 Notes Cas. Supp. 1. [335] § 366 GENERAL VIEW OF DIVORCE. , [BOoK Iv. inferred from their living in the same house together.’ Poyn- ter says, it is not necessary “that a husband should instantly close his doors upon an offending, and it may be, repentant wife; recollecting her former innocence, he may indulge, at least, in some feelings of pity for her degraded situation; and, until a fit retirement is provided, allow her the protection of his roof, but not the solace of his bed.” Yet he supposes “eondonation may possibly be inferred, more particularly against the husband, if within a reasonable time the parties do not entirely separate.”2 The general presumption is, that married persons living in the same house do live on terms of matrimonial cohabitation; but this presumption may be re- pelled by the circumstances of the particular case? If the husband has removed his wife from him, and she alleges a condonation by an act of intercourse with her after such removal, she must prove such act by clear and distinct evi- dence.* § 366. A mere promise of future forgiveness, or an unac- cepted invitation to the guilty party to return to the matri- monial bed, with an offer of condonation on this event, 1 Dance v. Dance, 1 Hag. Ec. 794, note, 3 Eng. Ec. 341; 1 Fras. Dom. Rel. 666; Westmeath v. Westmeath, 2 Hag. Ec. Supp. 1, 118, 4 Eng. Ec. 238, 292; D’Aguilar v. D’Aguilar, 1 Hag. Ec. 733, 3 Eng. Ec. 329, 335; Snow v. Snow, 2 Notes Cas. Supp. 1,16. In Westmeath v. Westmeath, the husband, having inflicted acts of cruelty upon his wife, in consequence of which the parties separated under articles, — brought, subsequently to this separation, a suit against her for the restitution of conjugal rights. She answered this suit by setting up the antecedent cruelty, and prayed for a divorce ; to escape from which, he replied in an allegation of condonation. And the court held, that her permitting him, at the urgent request of him- self and their mutual friends, in order to prevent the rupture becoming pub- lic, to occupy, for a short time, a separate bedroom in her house, and to dine with her, did not amount to condonation ; neither did it prove that she did not consider cohabitation unsafe. And see ante, § 361. * Poynter Mar. & Div. 236. But see Wright v. Wright, 6 Texas, 3. ® Beeby v. Beeby, 1 Hag. Ec. 789, 3 Eng. Ec. 338, 342; Snow v. Snow, 2 Notes Cas. Supp. 1, 13; 1 Fras. Dom. Rel. 666. * Campbell v. Campbell, Deane & Swabey, 285. [ 336 ] CHAP. XIX. ] CONDONATION. § 367 amounts to no more than a willingness to condone, or an overture, not binding till accepted, and subject to be with- drawn, like any other offer: it is not condonation, it does not bar the remedy.! A contrary doctrine appears to have been in the minds of the judges in an Indiana case, where it was observed: “Although the testimony before us is extremely vague, it may yet be inferred, if any part is properly applicable to the charge of adultery, that the commission of that offence by the defendant was known to the plaintiff when he endeavored to induce her to return to him. Such an effort, made with knowledge of the fact, was a waiver of any right of relief”? But the doctrine here suggested is so foreign to the spirit of all just, human laws; it so overlooks also the established principle, that the thought of a man, un- developed in act,? is not to bind him; as to create doubt, whether it would be adopted, after consideration, by any court. Yet evidence of such an offer from a complaining wife, in a cause of cruelty, might be important as showing her own want of belief in personal danger from the cohabita- tion; perhaps also it might, in some circumstances, afford auxiliary proof of condonation.* § 367. A condonation may be inferred from the party’s neglecting to prosecute a suit for divorce already com- menced ;° and this circumstance, contrary to the general rule,® has been deemed to press more heavily against the wife than the husband.’ Perhaps the reason of this unusual discrimi- nation in the husband’s favor may be, that, after the wife has commenced her suit, she not only.is out of his power or 1 Popkin v. Popkin, 1 Hag. Ec. 766, 3 Eng. Ec. 325, 326 ; Ferrers v. Fer- rers, 1 Hag. Ec. 781, note, 3 Eng. Ec. 334; *Quarles v. Quarles, 19 Ala. 363. ? Christianberry vr. Christianberry, 3 Blackf. 202. 8 See 1 Bishop Crim. Law, § 312. * See ante, § 357, note; post, § 367. ’ Walker v. Walker, 2 Phillim. 153. ® Post, § 368. 7 Betcher v. Betcher, cited 2 Phillim. 155. 29 [ 387] § 368 GENERAL VIEW OF DIVORCE. [Book Iv. control, but may ordinarily compel him to provide the means to carry it on; while he, if plaintiff, might be impelled to dis- continue it from apprehensions of poverty. But matters of this kind plainly need to be considered in reference to the circum- stances of particular cases, rather than to be developed into general rules. Moreover, the dismissal of a suit, by agree- ment of the parties, has been held to bar a future suit for the same cause; the principle being, it seems, that the agreement and dismissal operate as a species of condonation1 We may doubt also, whether this would be the consequence under all circumstances. § 868. Condonation is not so easily inferred, is not so strict a bar also, against the wife as against the husband? “ A woman,” says Lord Stowell, “has not the same control over her husband, has not the same guard over his honor, has not the same means to enforce the matrimonial vow; his guilt is not of the same consequence to her; therefore the rule of condonation is held more laxly against the wife.”° “It is not improper,” he remarks in another case, “she should for a time show a patient forbearance; she may find a difficulty either in quitting his house or withdrawing from his bed. The husband, on the other hand, cannot be compelled to the bed of his wife; a woman may submit to necessity. It is too hard to term submission mere hypocrisy. It may be a weakness, pardonable in many circumstances.”* But this 1 Smyth v. Smyth, 4 Hag. Ee. 509, 514. 2 ‘Wood v. Wood, 2 Paige, 108; Angle v. Angle, 1 Robertson, 634, 640, 641; Dance v. Dance, 1 Hag. Ec. 794, note, 3 Eng. Ec. 341; Westmeath». Westmeath, 2 Hagg. Ec. Supp. 1, 4 Eng. Ec. 238, 290; Turton v. Turton, 8 Hag. Ec. 338, 350, 5 Eng. Ec. 130; Walker v. Walker, 2 Phillim. 153, 156 ; Bowic v. Bowic, 3 Md. Ch. 51; Gardner v. Gardner, 2 Gray, 484, 441; Armstrong v. Armstrong, 32 Missis. 279, 290, 298; 1 Fras. Dom. Rel. 667. 5 D’Aguilar v. D’ Aguilar, 1 Hag. Ec. 778, 3 Eng, Ec. 829, 337. * Beeby v. Beeby, 1 Hag. Ec. 789, 3 Eng. Ec. 338, 341. See also Delli- ber v. Delliber, 9 Conn. 233. And see remarks of Lord Meadowbank, in Greenhill v. Ford, cited 1 Fras. Dom. Rel. 667; and of Sir John Nicholl, in Durant v. Durant, 1 Hag. Ec. 733, 8 Eng. Ec. 810, 819. [ 338 ] CHAP. XIX.] CONDONATION. § 369 discrimination in favor of the wife will not be carried to ex- tremes ; neither will it be applied to cases in which the rea- son whereon, as a general doctrine, it rests, does not exist. Té will not therefore justify the wife in living in the same house with her husband’s concubine, sharing the turpitude of his crime, partaking of a polluted bed And it has been considered in Scotland, with much apparent reason, that, if the wife is living beyond the influence of the husband, as with her father or brother, the same circumstances which would show a condonation by him, will show a like condonation by her2 In accordance also with this enlightened view, Lord Stowell, in an English case, said: “It is material to observe, how the return to cohabitation was brought about; as it will weigh, whether there was a condonation, and what was the effect.” 8 § 369. Cruelty may be the subject of condonation, as well as adultery ;# “and though,” says Dr. Lushington, “in ques- tions of condonation, I have almost uniformly found the same doctrine attempted to be applied to condonation both of adultery and cruelty, still I think the two offences are so distinct in their nature, that the same considerations cannot be equally applicable to both.”5 The acts of cruelty, with the means of proving them, are generally, not necessarily, known as they occur; and in almost every instance the cru- elty consists, not in a single act, revealed at once, like adultery, but in “ successive acts of ill treatment at least, if not of per- sonal injury; so that something of a condonation of earlier 1 Kirkwell v. Kirkwell, 2 Hag. Con. 277; ante, § 346, note. ° Lothian on Consist. Law, 163; 1 Fras. Dom. Rel. 668. See Bowic v. Bowic, 3 Md. Ch. 51. ; * D’Aguilar v. D’Aguilar, 1 Hag. Ec. 773, 781, 3 Eng. Ec. 329, 834. And see ante, § 367. ; * Burr v. Burr, 10 Paige, 20; Whispel v. Whispel, 4 Barb. 217; Barnes v. Barnes, Wright, 475; Questel v. Questel, Wright, 491; McDwire v. McDwire, Wright, 354; Threewits v. Threewits, 4 Des. 560; Masten v. Masten, 15 N. H. 159, 160; Wright v. Wright, 3 Texas, 168, 187. 5 Snow v. Snow, 2 Notes Cas. Supp. 1, 15. [ 339 ] § 370 GENERAL VIEW OF DIVORCE. [Boox Iv. ill treatment must in such cases necessarily take place.” ? To hold, therefore, the doctrine strictly, as in adultery, might operate severely and unjustly. § 370. It has been apparently laid down in Massachusetts ? and Pennsylvania,’ that the doctrine of condonation, at least the presumption of condonation arising from cohabitation, is inapplicable, as against the wife, to causes of cruelty. This exception, unknown in England, is not generally allowed in the United States;* and the cases which recognize it appear not to have proceeded upon any extensive or well-considered view of the subject.2 Indeed the Massachusetts court, in a very late decision, expressly asserted the applicability of the doctrine in these circumstances; overruling, if overruling 1 Sir John Nicholl, in Westmeath v. Westmeath, 2 Hag. Ec. Supp. 1, 4 Eng. Ec. 238, 290; 1 Fras. Dom. Rel. 462. 2 Perkins v. Perkins, 6 Mass. 69. 8 Hollister v. Hollister, 6 Barr, 449. See Tiffin v. Tiffin, 2 Binn. 202; McKarracher v. McKarracher, 3 Yeates, 56. * See cases cited ante, § 369. 5 This, however, is the doctrine of the Scotch courts; and, in Scott v. Campbell, the Commissaries sustained the following view of the matter, as a sufficient answer to a plea of condonation founded on cohabitation : “ Sep- aration from bed and board, upon the head of maltreatment, was, for the most part, founded on the multiplicity and renewing the acts of maltreat- ment, and therefore the continuing of cohabitation was never a good de- fence against this separation ; for one act or two might not be sufficient, and yet a complication was, because it demonstrated a continuance of the maley- olous mind, and therefore these acts of maltreatment were always con- joined, though there be an interim cohabitation in hopes of amendment ; and, if it were not so, there could be almost no separations on the head of mal- treatment, for, the acts consisting in a tract, it necessarily supposed an interim cohabitation, and was very different from the case of divorce on the head of adultery ; because there one act is violatio fidei conjugalis, and therefore cohabitation, after knowledge thereof, was understood to be a tacit remission ; which was very different from maltreatment.” 1 Fras. Dom. Rel. 462; Macfarlane v. Macfarlane, 11 Scotch Sess. Cas. n.s. 533. But in Scot- land, condonations are not conditional, as in the English law; 1 Fras. Dom. Rel. 668; whence the necessity of the foregoing doctrine. [ 340 ] CHAP. XIX.] CONDONATION. § 371 were necessary, the former adjudication! Still there are rea- sons which should lead the courts to apply it, in these cases, with great caution, and with a view to its equity, rather than its strict letter. The peculiar nature of the offence of cruelty, as generally witnessed, developing itself by degrees, and so slowly as seldom to reveal even to the sufferer the precise line between the endurable and the unendurable ; the difficulty a wife experiences in making up her mind, in a single hour or day, whether she can longer bear her burden; the fact, that often she cannot herself know certainly, and at once, whether or not she is in bodily peril, which is the true criterion of legal cruelty, and, that while in suspense she must continue the cohabitation, — should lead to great caution in inferring, against her, condonation of cruelty, from subsequent cohab- itation.? § 371. Until the wife has determined to leave her husband, and cast herself on her legal rights, she should use the means best adapted to reclaim him. And Lord Stowell® has laid it down, and Dr. Lushington has confirmed him,‘ that patient endurance of ill treatment is not only no bar to a wife’s suit, but raises no presumption against the truth of her complaint. The latter of these judges says, that “ connubial cohabitation, after the last act of cruelty, is not necessarily and universally a bar, as condonation, to a wife’s suit; even though such cohabitation may be, in one sense, a voluntary cohabitation, or may not be forced or fraudulently brought about by the husband;” and that “whether such connubial intercourse shall operate as a bar must depend on all the cit- cumstances of each individual case.” And where the parties were in a foreign country, and the wife, under the peculiar circumstances, continued her usual cohabitation with her hus- 1 Gardner v. Gardner, 2 Gray, 484, 441. 2 “ The last drop makes the cup of bitterness overflow.” Lord Jeffrey in Macfarlane v. Macfarlane, 11 Scotch Sess. Cas. N. 8. 533. * D’Aguilar v. D’Aguilar, 1 Hag. Ec. 773, 781, 3 Eng. Ec. 329. * Snow v. Snow, 2 Notes Cas. 1, 16. 29* [341 J § 372 GENERAL VIEW OF DIVORCE. [Book Iv. band for several days after his last act of cruelty, she was held not to be barred thereby! But the court carefully ab- stained from making any intimation, that the same lenient doctrine could be applied to adultery. There is a late Ala- bama case going the extreme length of holding, that a wife, complaining of a gross act of cruelty, was not barred, though she had continued the cohabitation two years ;? but evidently the circumstances of such a case must be very peculiar, to accord with the general doctrine elsewhere.* III. Conditional Quality of Condonation. § 371 a. Condonation is not absolute remission; but, pro- ceeding on the idea of repentance sprung up in the mind of the delinquent, it does not apply where subsequent facts show no repentance to have existed. Hence comes what is called the conditional quality of condonation. The condition has been matter of some judicial difference of opinion, as to its precise limitations; but the doctrine which seems best es- tablished, as one alike of reason and authority, is this, — that the original offence is revived, the condition being vio- lated, if the party forgiven does not both abstain from the commission of the like offence afterward; and moreover treat the forgiving party, in all respects, with conjugal kindness. The difference of opinion, among judges and lawyers, relates to the latter branch of this proposition. § 372. As late as the year 1825, the precise limitation of the condition seems to have been open in England to some doubt; so when the case of Durant v. Durant* was argued 1 Snow v. Snow, supra. s.P.in Popkin v. Popkin, 1 Hag. Ec. 765, where, under different circumstances, a cohabitation which continued from early in December to the 6th of January was held not to bar the wife. ss. Pp. also, Dysart v. Dysart, 1 Bonensen; 106,139, 541; Whispell v. Whispell, 4 Barb. 217. 2 Reese v. Reese, 23 Ala. 785. § See Bowic v. Bowic, 3 Md. Ch. 51; Gardner v. Gardner, 2 Gray, 434. “ Durant v. Durant, 1 Hag. Ec. 733, 3 Eng. Ec. 310. [ 342] CHAP. XIX.] CONDONATION. § 373 béfore Sir John Nicholl, he irivited the attention of counsel to this point. The view ultimately taken of the evidence ren- dered unnecessary any absolute decision of the question of doubt; namely, whether ill treatment, not amounting to legal cruelty, would revive condoned adultery. In this case the particular ill treatment consisted in making a false accusation of adultery against the wife, and turning her off. The ac- complished judge leaned strongly to the opinion, that the con- doned adultery was revived, and said: “Some propositions seem to be admitted; first, that condonation is accompanied with an implied condition; secondly, that the condition im- plied is that the injury shall not be repeated ; thirdly, that a repetition, at least of the same injury, does away the condo- nation, and revives the former injury. So far the propositions are clear; but must the injury be of the same sort, be proved in the same clear manner, be sufficient per se to found a sep- aration? § 373. “If nothing,” he continued, “but clear proof of act- ual adultery will do away condonation of adultery, the rule of revival becomes nearly useless; for the revival is unneces- sary. The only possible way in which the former adultery could bear, would be in, possibly, inducing the court to give some slight additional alimony ; but it could not bear, even in that way, ‘when the suit is brought by the husband; in which case, of course, there would be no question of perma- nent alimony. Jt appears therefore hardly to be consistent with common sense, that clear proof of an actual fact of sub- sequent adultery should be necessary to remove the bar; something short would be sufficient, and .it seemed almost admitted, though no direct authority was adduced in support of the position, that solicitation of chastity would remove the effect of condonation of adultery ;1 but still it was maintained, that it must be ‘an injury ejusdem generis’ It is difficult to accede to the good sense even of that principle; or to suppose, ? See Snow v. Snow, 2 Notes Cas. Supp. 1, 14. [ 343 ] § 374 GENERAL VIEW OF DIVORCE. [BooK Iv. that the implied condition, upon which the forgiveness takes place, could be: ‘You may treat me with every degree of insult and harshness, nay, with actual cruelty, and I bar my- self from all remedy for your profligate adultery, only do not again commit adultery, or any thing tending to adultery ;’ the result of the argument is, that this must be supposed to be the condition implied when the condonation of adultery takes place. The plainer reason, and the good sense of the implied condition is, that ‘you shall not only abstain from adultery, but shall in future treat me, in every respect treat me (to use the words of the law) with conjugal kindness, on this condi- tion I will overlook the past injuries you have done me.’ This principle, however, does not rest wholly on its own ap- parent good sense, but the court has authority to support it.” And he showed, that, as far back at least as 1730, facts of cruelty were clearly held to revive condoned adultery,’ even though insufficient in intensity to support an original suit on the ground of cruelty? § 374, Dr. Lushington, in a subsequent case, observed: “ I take it to be acknowledged law, as laid down by the learned Dean of the Arches in Durant v. Durant, that cruelty, to revive condoned adultery, may be less violent in degree, and less stringent in proof, than when it forms the original charge. In my view that principle is quite consistent with reason; I sub- scribe to it, not only from deference to the superior court, but because I feel it to be most consonant to justice.” ® Sir John Nicholl had already, in a case two years later than that of Durant v. Durant, confirmed all he had said in it upon the subject, and laid down the doctrine, without hesitation or qualification, to be, that the condition attached by law to con- * Worsley v. Worsley, 2 Lee, 572, cited 1 Hag. Ec. 734, 762, 764, 38 Eng. Ee. 311, 324. And see Eldred v. Eldred, 2 Curt. Ec. 376, 7 Eng. Ec. 144, 148. And see cases cited post, § 374. 2 Durant v. Durant, 1 Hag. Ec. 733, 761, 3 Eng. Ec. 310, 323; D’Aguilar v. D’Aguilar, 1 Hag. Ec. 778, 3 Eng. Ec. 329. * Bramwell v. Bramwell, 3 Hag. Ec. 618. [ 344] CHAP. XIX.] CONDONATION. § 375 donation is, that the suffering party be thereafter treated with conjugal kindness.!. We may therefore deem this the settled English doctrine ;? and Chancellor Walworth was justified substantially, though not literally correct, when he said :, “ The English courts have held, that, to revive condoned adultery, it was not necessary that the new injury should be of the same nature ; but that cruelty, desertion, or other improper conduct of the husband towards the wife was sufficient.” ® § 375. In New York and several of the other American States, adultery is ground of divorce from the bond of matri- mony; cruelty, cause only of separation from bed and board. And the question has been made, whether, in these States, cruelty, or other conduct of a like legal tendency, will revive condoned adultery. If, by the English doctrine, imported into the United States, any conjugal unkindness is sufficient, cru- elty plainly must be; for, though our law inflicts a heavier penalty upon adultery than the English law used to, it does not transform cruelty into conjugal kindness. Yet this ques- tion has caused embarrassment in New York, where the rule is still admitted to be in England as above stated. The case in which the principal discussion rose, is Johnson v. Johnson. It was a bill for divorce on the ground of the husband’s adul- tery, which had been condoned; but, to remove the effect of the condonation, the fact was shown on behalf of the wife, that, though there had been no subsequent adultery or even 1 Westmeath v. Westmeath, 2 Hag. Ec. Supp. 1, 4 Eng. Ec. 238, 290. 2 Tt is so laid down in Waddilove’s Digest, p. 44, referring to Durant v. Durant, 1 Hag. Ec. 745, 761; Ferrers v. Ferrers, 1 Hag. Con. 130; D’Agui- lar v. D’Aguilar, 1 Hag. Ec. 781; Snow v. Snow, 2 Notes Cas. Supp. 10. * Johnson v. Johnson, 4 Paige, 460. Of the same opinion, as to the Eng- lish doctrine, were the Vice-Chancellor, and, as far as appeared, all the mem- bers of the Court of Errors, in this case. 1 Edw. Ch. 439, 14 Wend. 637; s.p. Burr v. Burr, 10 Paige, 20, 34; Whispell v. Whispell, 4 Barb. 217; Quincy v. Quincy, 10 N. H. 272; Phillips v. Phillips, 4 Blackf. 131, note ; Langdon v. Langdon, 25 Vt. 678; 2 Greenl. Ev. §53; 2 Kent Com. 101, note. ' * Ante, § 372. [345] §376 | GENERAL VIEW OF DIVORCE. [Book Iv. actual violence, yet the husband had totally neglected all at- tention to her comfort, insulted her with opprobrious epithets and offensive language, pursued toward her a course of con- duct calculated to wound her feelings and alienate her affec- tions. Vice-Chancellor McCoun held, that the condoned adultery was thereby revived; Chancellor Walworth, on ap- peal, reversed this decision; the Court of Errors, on further appeal, reversed the decision of the Chancellor, confirming that of the Vice-Chancellor! In a later case, in which the wife had. forgiven her husband’s adultery, and after this forgiveness he had committed a felony, and was sentenced for it to prison, Vice-Chancellor McCoun, confirmed on appeal by Chancellor Walworth, held, that the adultery was revived.? § 376. Where the subsequent acts are of the same nature with the former ones, savoring also of them, there is no difh- culty of principle in maintaining, that less is required than would establish an original complaint; and, to this point, the authorities are quite clear. “It is held,” says Lord Stowell, “that words of heat and passion, of incivility or reproach, are ' 1 Johnson v. Johnson, in the V. C. Court, 1 Edw. Ch. 439; in the Ch. Court, 4 Paige, 460; in Court of Errors, 14 Wend. 637; Lockwood Reversed Cases, 141. The opinion of the Court of Errors was pronounced by Chief Justice Savage, and concurred in by Mr. Justice Nelson, and Senators Arm- strong, Beckwith, Bishop, Cropsey, Griffin, Kemble, Lacey, MacDonald, and Willes. Senator Tracey gave a dissenting opinion, in which he was sustained by Senators Downing, Edmonds, Edwards, Fisk, Lansing, Mack, Maison, and Van Schaick. When tke court came to settle the decree, Senator Kemble said he had given his vote on the ground, that he did not regard the condo- nation as sufficiently established in proof, and that, therefore, he had not considered the question of revival. The reporter, in a note, since confirmed by Chancellor Walworth (Burr v. Burr, 10 Paige, 20, 35; but see Whispell v. Whispell, 4 Barb. 217), drew the inference, from this fact, that the ques- tion was still open in New York; but why, it does not appear, since, throw- ing out the vote of Kemble, for it could not be counted the other way, there would be left ten to nine. And Mr. Lockwood, in his Reversed Cases, p. 141, says: ‘‘ We believe the profession consider the question very well settled by the opinion of Chief Justice Savage.” 2 Hoffmire v. Hoffmire, 3 Edw. Ch. 173; Hofmire v. Hofmire, 7 Paige, 60. [346 ] CHAP. XIX.] CONDONATION. § 376 not alone sufficient for an original cause; nor harshness of behavior; but I cannot but think their operation would be stronger in condonation. “Words, otherwise of heat, receive a different interpretation, if, upon former occasions, they have been accompanied with acts; if it is apparent that the party was in the habit of following up words with blows; and, on these grounds, I am of opinion much less is sufficient to de- stroy condonation than to found ‘an original suit.”1 So any conduct, which, after a reconciliation of the parties in a case of cruelty, creates reasonable apprehension of personal vio- lence, will revive the condoned cruelty ;2 in fact, it is cruelty itself$ The condonation having presumptively proceeded on evidence of a change of temper, acts which of themselves fall short of cruelty, may plainly show no change to have taken place; and, though not of themselves sufficient evidence of danger to the injured party, may make the danger apparent when connected with what went before. 1 D’Aguilar v. D’Aguilar, 1 Hag. Ec. 773, 3 Eng. Ec. 329, 335. And see Westmeath v. Westmeath, 2 Hag. Ec. Supp. 1, 4 Eng. Ec. 238, 290; Durant v. Durant, 1 Hag. Ec. 733, 3 Eng. Ec. 310, 827; Whispell v. Whispell, 4 Barb. 217; Burr v. Burr, 10 Paige, 20; Langdon v. Langdon, 25 Vt. 678; Harrison v. Harrison, 20 Ala. 629; Hughes v. Hughes, 19 Ala. 307; Web- ster v. Webster, 23 Eng. L. & Eq. 216. 2 Westmeath v. Westmeath, supra; Gardner v. Gardner, 2 Gray, 434, - 442; Nogees v. Nogees, 7 Texas, 538; Wright v. Wright, 6 Texas, 3, 21. 2 Post, § 454, 465, 466. * Dr. Lushington, in considering the admissibility of a libel, made the fol- lowing observations: “ Has any thing occurred since March, which can revive the cruelty alleged to have taken place previously ? Now this is a subject which has been discussed over and over again, in this court, and on which it is very difficult to lay down any precise or general principles ; to revive con-~ -doned cruelty, there must be something of the same kind as would have sup- ported a suit originally for cruelty, such as violence, or threats of violence; but the acts need not be of the same stringent kind; something short will be sufficient, provided it be shown, that the husband continues in the same state of mind, and as incapable of controlling himself, as when he actually com- mitted the former acts of cruelty. Now, the eleventh and twelfth articles contain the charges of cruelty. The first averment in the eleventh article is, ‘that the husband compelled the wife to sleep in a garret of his house, notwithstanding her lameness, arising from paralysis, while he himself slept [ 347] § 377 GENERAL VIEW OF DIVORCE. [Book Iv. § 377. On a like reason, suppose the husband in the habit of drinking to intoxication, and of abusing his wife in his fits of drunkenness; and suppose the parties, after separation, to be reconciled on his promise of leading a temperate life ; in separate and apart, in another room.’ This charge, standing alone, is no act of cruelty of which this court can take notice; this court cannot com- pel parties, man and wife, to sleep together, in one and the same bed. Then it is alleged, ‘that she is not permitted to enter any room in the house, except the parlor, in which she takes her meals.’ Whether this is a measure of harshness or not, it is impossible for the court to say, unless all the circumstances are before it; prima facie, this cannot come within the rules of cruelty as laid down in this court. Then it is alleged, ‘that the meals provided for her are of an unwholesome nature, consisting of particu- lar meat, forbidden by the wife’s medical attendants.’ Now I must say this is a circumstance of a slight nature, which never yet found its way into a libel of cruelty. This court cannot investigate circumstances of this kind; and, supposing them to be proved, they never could he held to constitute acts of cruelty. Then the libel goes on to allege, ‘that the husband has fre- quently got drunk, and, when so, has abused his wife with gross appellations.’ Mere intoxication, unless leading to personal violence, is no ground for a divorce; no appellation, although gross and reprehensible, can give a legal ground for a separation. None of the matters alleged in the eleventh article constitute a revival of cruelty ; assuming it to have been committed before the suit for restitution of conjugal rights. The twelfth article, after stating, in general terms, what is absolutely useless, ‘ that the husband continued his harsh and cruel behavior, as before the return of the wife’ — what this means I do not know; no evidence could be taken in such an article — goes on to allege, ‘ that the husband removed the wife’s walking-stick, or crutch; that he caused the windows of the parlor to be fastened and painted out- side.” The first part is, I presume, meant to show that the wife is unable to make-her escape ; the second part I do not see the relevancy of. Taking this statement to the fullest extent, it only shows, that, during some parts of the months of June and July, the wife was not permitted to leave the house; this, standing alone, cannot revive former cruelty. I do not say, that, if the former cruelty had been of a different description, if blows had been struck, and life put in danger, or threats approaching to immediate violence, that harshness of conduct may not amount to a revival of cruelty, although in another shape, and less likely to lead to actual commission. In this case there is not one act of cruelty; there is no personal violence, no one threat; nothing, in short, which the wife did not risk the peril of when she took upon herself the yoke of matrimony. I reject this libel.” Evans v. Evans, 7 Jur. 1046. Ante, § 370, note. See Franklin v. Franklin, 7 Jur. 135. [ 348 J CHAP. XIX.] CONDONATION. § 378 such a case, the wife might show his former abuse, in con- nection with its cause, and show, that, subsequently to the reconciliation, he was intoxicated, in aid of her proofs of sub- sequent cruelty. And it was remarked by Desaussure, J., that, “if a woman forgives ill usage, and returns to her hus- band, on promises of good usage, she shall not afterwards obtain the protection and assistance of this court, if those promises have been faithfully kept, and she again leaves her husband from caprice ; but, if there are clear indications of a breach of those promises, and some actual ill usage, she is not bound to wait for extremities, as in the first instance, but may depart as soon as she finds the promises violated, and her husband returning to his old bad habits. She has a right to judge of the future by the past; and the court will connect the whole of his conduct, in order to form a correct judg- ment.” } § 378. A case decided by the judicial committee of the Privy Council in 1840, is briefly reported as follows: — “ Though a slighter offence (not a slight offence) will revive an offence condoned, and will, combined with it, operate as a ground of divorce ; still the allegation of a subsequent offence will not so revive the former one as to render it admissible as ' a portion of the proofs, or as a corroboration of doubtful proofs, or as a complement to insufficient proofs, of the subse- quent act.”2 Now, if this is a correct statement of the case, and if the court intended to affirm, that evidence of the con- doned and subsequent conduct cannot be viewed together, but that the condonation has opened a chasm not thus to be 1 Threewits v. Threewits, 4 Des. 560. See also Questel v. Questel, Wright, 491; Calkins v. Long, 22 Barb. 97. * Collett v. Collett, 8 Monthly Law Mag. 158, Wadd. Dig. 44. The true construction of this language clearly is, to consider the particle “it” as referring,’ for its antecedent, to ‘offence condoned” and “former one” throughout ; for if, in the second place where this particle occurs, it is referred to “ allegation,” the entire period amounts to but an awkward affirmation of the truism, that one’s own allegation is no part of his proofs. 30 [349] ° § 379 GENERAL VIEW OF DIVORCE. [Boox Iv. passed,! we may find it difficult to reconcile the decision either with the foregoing principles, or with reason ; unless it: proceeded on special circumstances, as that the prior offence was of a nature different from the subsequent. It is not probable the learned tribunal intended to overrule the case, for example, of Turton v. Turton; where, adultery having been committed by the husband with the wife’s sister, and con- doned by the wife; and the sister having afterward lived in the same house with the husband and wife; Dr. Lushington observed: “ The cohabitation of the husband and the sister of his wife appears to have continued up to the commence- ment of the cause; for I take it to be clear, that, according to the doctrine .of this court, and according to all the princi- ples in similar cases, if it can be once shown that the parties have been cohabiting in an illicit connection, it must be pre- sumed, if they are still living under the same roof, that the criminal intercourse subsists, notwithstanding those who live under the same roof are not prepared to depose to that fact.” ? Undoubtedly every condonation rests on the idea of the con- doning party having had evidence of reformation in the other ;? whence it would be unreasonable, under many cir- cumstances, to connect the prior misconduct with the subse- quent, in aid of proof of the subsequent, without something to show the revival of the old intent, or to rebut the presump- tion of a change of intent, growing out of the condonation. § 379. There appears to be some foundation for the doc- trine, not established by any direct adjudication, that an offence may be so obliterated by forgiveness as not to admit of revival. Thus in Dysart v. Dysart, Dr. Lushington said: “ I must inquire, whether any one in particular, or all united, 1 That the prior and subsequent conduct may be looked at together, see Sinton v. Irvine, 11 Scotch Sess. Cas. 402; Reg. v. Dunn, 12 Ad. & E. 599, 619. * Turton v. Turton, 3 Hag. Ec. 338, 5 Eng. Ec. 130,136; Smith v. Smith, 4 Paige, 432. And see post, § 442, ® Ante, § 872, 376. [ 350 ] CHAP. XIX.] CONDONATION. § 380 of the transactions I have examined, demand from the court a ‘separation. Will the occurrence at Irnham, in 1824, proved by one witness, and condoned for thirteen years — condoned by acts without number, by a long series of conduct which denotes a total oblivion, an entire forgiveness of it in every step taken, a conduct wholly inconsistent with a fear, or even apprehension, of repetition? I doubt the doctrine of revival applying to such a case at all.”! If we allow this exception to the general doctrine of condonation, we surely shall not be able to find for it any satisfactory foundation of reason. Because, when forgiveness passes once, all passes which re- sults from forgiveness, under the circumstances existing; and, when the act of forgiveness is repeated under the like circum- stances, nothing can pass from the act only what would have passed if it were an original forgiveness. Parties cohabiting forgive daily by the very cohabitation; yet what is done on the one hundredth, or one thousandth day, is only what is done the first day. If the condonation on the thousandth, is without condition, equally must it be on the first; if on the first it is with condition, so must it be on the thousandth. § 380. Whether any express words may add to the condo- nation a condition beyond what the law without the words attaches, is a question at least doubtful upon principle,? not settled also by authority. Dy. Lushington in one case ob- served: “ This condonation is not only conditional in the eye of the law, as all condonations are, but it is expressly so.” And he added: “ Assuming that the condonation was com- plete, and extended to all the previous adultery, under what circumstances, and on what conditions, was it given, and what was the duty of the husband, and what was his conduct afterwards? He solemnly engaged to separate himself from this woman, and, if possible, not ‘to carry on the least corre- spondence with her; yet, shortly after this, Mr. and Mrs. Bram- * Dysart v. Dysart, 1 Robertson, 106,141,142. And see observations of Lord Stowell in Beeby v. Beeby, 1 Hag. Ec. 789, 3 Eng. Ec. 338. 2 Ante, § 357. [ 351 ] § 380 a GENERAL VIEW OF DIVORCE. [BOOK Iv. well go to Epsom, and he clandestinely returns with Jeffrey [the particeps criminis] to Tunbridge Wells.” 1 -§ 380 a. Looking at this matter of the condition in condo- nation, rather in the light of principle than of precise adjudi- cation, we have the following points: Except in cases where the condonation passes by express words, it is a mere legal fiction, founded indeed oftentimes in fact, yet still a legal fiction, introduced into the law for the purpose of promoting virtue and honor and repentance in the parties toward each other and toward the community. But when the law creates, as often it does, a mere fiction, to subserve justice, it moulds that fiction into the shape which the judges deem best adapted to this end. But what shape should the condi- tion in condonation assume, in order to make it efficient for good? After a matrimonial offence has been committed, an unrest of mind has been produced in the injured party; and, though such party might be willing to give the other a trial of future matrimonial fidelity, if sure of retaining his remedy in case the trial should fail, he would not otherwise be willing. But what would the injured party, looking at the question in the light of reason, deem to be a failure? Would he look merely at what the law had already set down as cause of divorce? Would he not rather deem the withdrawal, by the other, of conjugal kindness, to such an extent as practically to destroy the peace which men and women seek in the marital relation, to be a failure? On the other hand, the erring one, conscious of error, should for the very reason of the error be particularly careful to do exactly right afterward. And, unless this were understood to be the true legal view of condonation, who, knowing the law, would dare to condone ? There must be some practical difficulty in applying this doc- trine, yet the doctrine thus stated rests in reason; and, it is submitted, in the better authority also. 1 Bramwell v. Bramwell, 3 Hag. Ec. 618, 5 Eng. Ec. 232, 238, 239. [ 352 ] CHAP. XIX. ] CONDONATION. § 382 IV. The Evidence and Practice of the Courts. § 381. In the practice of the ecclesiastical courts, the pro- moter usually alleges, in the libel, a withdrawal from cohabita- tion with the defendant, upon the last act of cruelty being inflicted! or receiving knowledge of the adultery ;? but only thus argumentatively does the libel deny condonation. This form of pleading seems naturally to constitute a part of the voluminous allegations, which must always incumber a case where the evidence is taken in the mode pursued in those courts ; butit is not adapted to the practice of other tribunals. And in England, it has been said, that slight proof of this allegation is sufficient? Truly, however, both there and here, condonation is but matter of defence; it may accompany a denial of the offence charged;4 and it must be pleaded by the defendant, or he will have no right to take advantage of it5 And Sir John Nicholl has said: “ I know not of any case where condonation has been held to estop a party, where it has not been pleaded.”® In the American practice, there is no necessity for the libel to contain any denial of condona- tion. . § 382. But in consequence of the triangular character of the matrimonial suit, as before discussed,’ it follows, that, whenever the fact of condonation having passed appears in 1 Coote Ec. Pract. 356. 2 Tb. 334. 3 Dr. Lushington, in Caton v. Caton, 13 Jur. 431, 434. * Smith o. Smith, 4 Paige, 432; Wood v. Wood, 2 Paige, 108; Dillon wu. Dillon, 3 Curt. Ec. 86, 7 Eng. Ec. 377, 380. 5 Smith v. Smith, 4 Paige, 432; Adams v. Hurst, 9 La. 243; Timmings v. Timmings, 3 Hag. Ec. 76, 5 Eng. Ec. 22, 26; Jeans v. Jeans, 2 Harring. Del. 38. * Durant v. Durant, 1 Hag. Ec. 733, 752, 8 Eng. Ec. 310, 319. But see Best v. Best, 1 Add. Ec. 411, 2 Eng. He. 158. 7 Earp v. Earp, 1 Jones Eq. 239. ® Ante, § 297, 300, 314. 30° [ 353 J § 382 GENERAL VIEW OF DIVORCE. [BOOK Iv. the case, it is fatal to the plaintiff’s claim, though the defend- ant has not pleaded it; not because the defendant has any just right to take the objection, but because public policy does not permit the divorce; and the public, which does not plead, objects through the conscience of the judge. And Chancellor Walworth went so far as to say, that, if there is reason to be- lieve this defence exists, the court, ex officio, may at any time before a final decree direct an inquiry to ascertain the fact. Therefore where, in a case taken pro confesso and referred to a master for proofs, the master’s report left it doubtful, whether the complainant had not voluntarily cohabited with the de- fendant after knowledge of the last act of adultery charged, such cohabitation having occurred after knowledge of several previous acts, there was ordered a reference back to the master of the question, whether this last act was condoned? But where a decree for divorce had been regularly obtained by the wife against her husband, while he was in the state prison on conviction for a felony, and no doubt existed of the fact of the matrimonial offence complained of having been committed; the court would not open the decree, 1 Smith v. Smith, 4 Paige, 432. On no principle other than is here sug- gested, can we account for the decision of the Supreme Court of Maine in Backus v. Backus, 3 Greenl. 136; a brief case, and not apparently much considered; where, on a general traverse to the libel, and without special plea, the respondent was permitted to show a condonation of the adultery, by subsequent cohabitation. The court is reported to have observed, that such evidence had always been heard in any stage of the cause, even after a default. And see Elwes v. Elwes, 1 Hag. Con. 269, 292, 4 Eng. Ec. 401, 411. 7 Dodge v. Dodge, 7 Paige, 589. It is observable, however, that a rule of the New York Court of Chancery required every plaintiff to aver in his bill, “that he has not voluntarily cohabited with the defendant since the discovery ” of the adultery. Rule 168. Therefore when a bill, on being taken as confessed, was referred to a master for proofs, the court held it necessary for him to inquire, whether, since the plaintiff obtained knowl- edge of the adultery, there had been any condonation of it by voluntary co- habitation. Pugsley v. Pugsley, 9 Paige, 589; Kane v. Kane, 8 Edw. Ch. 889; Dobbs v. Dobbs, 8 Edw. Ch. 377; Emmons v. Emmons, Walk. Mich. 532, And see Johnson v. Johnson, 14 Wend. 637, [ 354] CHAP. XIX.] CONDONATION. § 384 for the purpose of enabling him to set up condonation of the offence.? § 383. In the ecclesiastical practice has arisen a difficulty which would not arise, certainly not to the same extent, under our different procedure. There a defendant, in his interroga- tories to the plaintiff’s witnesses, may inquire, not only into matters alleged in the libel, but also into such as he intends himself to allege in his responsive allegation, thereafter to be produced. But suppose he does not afterward tender the allegation, or does not therein set up the condonation; still the evidence exists in the case, rightfully drawn forth by a party who has no right to use it without a plea; and the question is, what the court will do with it. Two points how- ever seem, on the whole, to be established ; first, that the court will not suffer the plaintiff to be surprised, but will give him, if necessary, an opportunity to explain; secondly, that, if the condonation is thus proved “ by the clearest and most conclu- sive evidence,” the divorce will be withheld, not otherwise ; “for, if [the matter] had been expressly pleaded, the other party might have produced further evidence to explain and disprove the defence.” ? § 384. Plainly, then, if a condonation appears on the face of the proofs or allegations of the party complaining, he, being bound to present a case which does not at the same time show a bar, cannot have the divorce And when thus the 1 Hofmire v. Hofmire, 7 Paige, 60; s. c. before the V. C., nom. Hoffmire ov. Hoffmire, 3 Edw. Ch. 173. For the contrary doctrine to what is main- tained in this section, see Lewis v. Lewis, 9 Ind. 105. See ante, § 314. ? Durant v. Durant, 1 Hag. Ec. 733, 3 Eng. Ec. 310, 317, 319; Snow v. Snow, 2 Notes Cas. Supp. 1, 11; Turton v. Turton, 3 Hag. Ec. 338, 5 Eng. Ec. 180; Beeby v..Beeby, 1 Hag. Ec. 789, 795, 3 Eng. Ec. 338, 341; Elwes v. Elwes, 1 Hag. Con. 269, 292, 4 Eng. Ec. 401, 411. And see ante, § 349. ® North v. North, 5 Mass. 320; Timmings 7. Timmings, 3 Hag: Ee. 76, 5 Eng. Ec. 22, 23; Snow v. Snow, 2 Notes Cas. Supp. 1, 12; Popkin v. Popkin, 1 Hag. Ec. 766, 3 Eng. Ec. 325; ante, § 349. [ 355 ] § 385 GENERAL VIEW OF DIVORCE. [Book Iv. condonation is to be inferred from the pleadings of such party himself, the rule we have just considered,! that it must be established, when not set up in defence, by the clearest and most conclusive evidence, does not apply.2_ So the pecul- iar form of the plaintiff’s allegation may cast upon him the burden of showing, affirmatively, that there was no condona- tion; as, it seems, if the husband states in his libel that the wife slept at his house the night after she committed adultery, of which adultery he had knowledge, he must show he did not sleep with her. § 385. Condonation may be inferred on less conclusive evidence than connivance; since, in the language of Dr. Lushington, it “may take place without imputing, either in the case of a wife or a husband, the slightest degree of blame ; especially in the case of the wife, whose conduct might be more meritorious from her forgiveness of injury. But con- nivance necessarily involves criminality on the part of the individual who connives; and, as the blame sought to be im- puted is the more serious, so ought the evidence in support of such a charge to be the more grave and conclusive.” 4 Still the evidence of condonation must, at all points, affirm- atively establish the allegation. Thus it is not sufficient to show cohabitation subsequent to an act of adultery; the proof must go further and establish, that the plaintiff knew of the adultery at the time of the subsequent cohabitation.® 1 Ante, § 383. 2 Snow v. Snow, supra. 3 Timmings v. Timmings, 3 Hag. Ec. 76, 5 Eng. Ec. 22, 26; Dillon v. Dillon, 3 Curt. Ec. 86, 7 Eng. Ec. 377, 390. And see Johnson vy. Johnson, 1 Edw. Ch. 439. * Turton v. Turton, 3 Hag. Ec. 388, 5 Eng. Ec. 130, 136; ante, § 339. 5 Durant v. Durant, 1 Hag. Ec. 738, 3 Eng. Ec. 310, 319; Popkin ». Popkin, 1 Hag. Ec. 776, note, 3 Eng. Hc. 325, 326. “The previous knowl- edge of the adultery must be clearly made out; and the circumstances, from which it is to be inferred, require to be of pregnant and indisputable import.” 1 Fras. Dom. Rel. 668, refers to Greenhill v. Ford, 1 Shaw Ap. Cas. 435. [ 356 J CHAP. XIX.] CONDONATION. § 387 § 386. A deed of separation, executed subsequently to the condoning of acts of cruelty, has been deemed good evidence by way of establishing a revival of the offence. Thus Sir John Nicholl said: “ As a deed of separation upon mutual agreement on account of unhappy differences, though con- taining a covenant not to bring a suit for the restitution of conjugal rights, these articles would offer no impediment to the husband’s present suit; but, as evidence against him necessarily implying a confession of ill usage subsequent to the condonation, they appear unanswerable, and are a strong acknowledgment that the casus federis had occurred. On that confession alone, coupled with the character of his tem- per and former acts, if the case had even.rested here, if the parties had never met after the execution of that deed, I should have entertained considerable doubt, whether the husband was entitled to the aid of the court to compel his wife to return; and whether the court would not, at least, dismiss the wife,” — the case being one in which the husband sued for restitution of conjugal rights, and the wife defended by setting up the cruelty! Surely, however, the evidence of revival to be drawn from the mere fact of separation must be slight ; and, if it is to come from the language of the deed, then the question of the effect of the language must vary, of course, with the words employed. § 887. There has been, in this country, little legislation to vary the common law doctrine, as unfolded in this chapter, concerning condonation. Our statutes are generally but in affirmance of the common law. The North Carolina act has perhaps destroyed, in that State, the conditional quality of condonation. It provides, that, if the husband has admitted his wife into conjugal society, after he knew of the criminal fact, it shall be a perpetual bar to a divorce; but it is not construed to deprive the husband of his right to a divorce for ,| Westmeath v. Westmeath, 2 Hag. Ec. Supp. 1, 115, 4 Eng. Ec. 238, 291, [ 857 ] § 387 GENERAL VIEW OF DIVORCE. [BooK Iv. subsequent adultery! The civil code of Louisiana directs, that the action shall be extinguished by a reconciliation, though the party may “bring a new suit for causes arising since the reconciliation, and therein make use of the former motives to corroborate his new action.” Therefore sufficient cause of divorce must have arisen subsequently to the recon- ciliation? * Collier v. Collier, 1 Dev. Eq. 352. But in such a case the court might exercise its discretion to grant a divorce from bed and board only. Ib.; ante, § 294. And see Earp v. Earp, Jones Eq. 239, 241. 2 J. F.C.v.M.E., 6 Rob. La. 135. See, as to Texas, Nogees v. Nogees, 7 Texas, 538. : [ 358 ] CHAP. XXx.] RECRIMINATION. § 388 CHAPTER XX. RECRIMINATION. Sect. 387 a-389a. Introduction. 889 5-391. A General View of the Doctrine. 892-404. Particular Propositions discussed. 405-407 a. Concerning the Recriminatory Fact condoned. 408, 409. The Practice of the Courts and Evidence. § 387 a. We now come to the consideration of a defence resting in the highest principle, yet practically uncertain in its limits and application. No title of this volume presents to us a doctrine more certainly just than this: no title is involved in so much obscurity, contradiction, doubt. § 388. Through all the field of our jurisprudence, extends one general doctrine, modified variously in various relations, yet everywhere preserving its identity, the substance of which is, that he who is himself in the wrong cannot be heard to complain in a court of justice of another’s wrong, pertaining to the same matter. And it is not sufficient that the plaintiff is less faulty than the defendant; he must come into court, as the expression is, with clean hands.1 Thus, ina suit for collision, resulting from the defendant’s careless driving, or from an obstruction placed by him in the highway, the plaintiff must himself have driven carefully, or he will not be entitled to re- cover” In a suit for the breach of a contract resting in ? Collins v. Blantern, 2 Wils. 341, 350; Gregg v. Wyman, 4 Cush. 322; Rex v. Eden, Lofft, 72; Anonymous, Lofft, 314; Willinck v. Davis, Harper, 260; Hyatt v. Wood, 4 Johns. 150; Roby v. West, 4 N. H. 285. ? Washburn v. Tracy, 2 D. Chip. 128; Smith v. Smith, 2 Pick. 621; But- terfield v. Forrester, 11 East, 60; Flower v. Adam, 2 Taunt. 314; Lane v. Crombie, 12 Pick. 177; Harlow v, Humiston, 6 Cow. 189. And see Wood v. Waterville, 4 Mass. 422. [ 359 ] § 388 GENERAL VIEW OF DIVORCE. [Book Iv. mutual and dependent covenants, the plaintiff, if he would succeed, must have kept his covenants! A woman seduced cannot maintain against the seducer an action for the seduc- tion and getting her with child; because, at last, she yielded wrongfully to his embraces.2, A man who, in violation of a public statute, sells intoxicating drinks without license, cannot maintain an action for libel by reason of a publication made concerning him in his business of violating the statute ;° neither will an action lie for a libel published of a person in regard to any illegal vocation he is following ;* nor for a wrong suffered in a matter about which the plaintiff was at- tempting a fraud on the public;> nor to recover back money lost in an unlawful game or wager;® nor to enforce a con- tract or other supposed right founded on a violation of a statute,’ or of the common law ;8 nor to recover the rent of a house which the plaintiff has let to be used for purposes of prostitution® If a man negligently so leaves his own land, upon which the cattle of his neighbor are in the habit of tres- passing, that they die in consequence of a repetition of the trespass ; as if he leaves maple syrup in his uninclosed woods, and they are killed in drinking it,! or carelessly digs a pit, and they fall into it;1! the owner of the cattle can maintain no action, because they were wrongfully on the premises. 1 Addison on Contracts, 202. 2 Paul v. Frazier, 3 Mass. 71. ® Wilbor v. Williams, 8 Law Reporter, 439. The exceptions reported to have been taken were afterward abandoned. * Hunt v. Bell, 1 Bing. 1; Manning v. Clement, 7 Bing. 362. 5 De Wurtz v. Hendricks, 2 Bing. 314. * Perkins v. Eaton, 3 N. H. 152; McCuilum v. Gourlay, 8 Johns. 147; Hawson v. Hancock, 8 T. R.575; Vandyck v. Hewitt, 1 East, 96. And see Spaulding v. Bank of Muskingum, 12 Ohio, 544; Morgan v. Groff, 5 Denio, 364; Bonner v. Montgomery, 9 B. Monr. 123; McKinney v. Pope, 3 B. Monr. 93; Lyle v. Lindsey, 5 B. Monr. 123. 7 Booth v. Hodgson, 6 T. R. 405; Bancroft v. Dumas, 21 Vt. 456; Fales v. Mayberry, 2 Gallis. 560; Willinck v. Davis, Harper, 260. * Den v. Moore, 2 Southard, 470. ® Girardy v. Richardson, 1 Esp. 13. 10 Bush v. Brainard, 1 Cow. 78. " Blyth v. Topham, Cro. Jac. 158. [ 360 ] OHAP. XX.] RECRIMINATION. § 389 a § 389. While the cases cited to the last section, and the points stated in it, depend, in some aspects, on principles dif- fering from one another, still they are all illustrative of one and the same universal rule of right, pervading all our law. And according to this rule, it is incompetent for one of the parties to a marriage to come into court and complain of the other’s violation of matrimonial duties, if himself guilty like- wise. When the defendant sets up such violation, in answer to the plaintiff’s suit, this is called, in the matrimonial law, recrimination. It was a cardinal’doctrine in the Mosaic law of marriage and divorce ;1 it was transplated from the Roman and canon? into the common law; and it has found in the latter a congenial soil. “The doctrine,” observes Lord Stowell, “has its foundation in reason and propriety. It would be hard if a man could complain of the breach of a contract which he has violated; if he could complain of an injury, when he is open to a charge of the same nature. Itis not unfit, if he who is the guardian of the purity of his own house has converted it into a brothel, that he should not be allowed to complain of the pollution which he himself has introduced ; if he, who has first violated his marriage vow, should be barred of his remedy; the parties may live together, and find sources of mutual forgiveness in the humiliation of mutual guilt.”2 Such parties are “suitable and proper com- panions for each other.” 4 § 389 a. Let us examine this matter of recrimination after the following order: I. A General View of the Doctrine ; II. Particular Propositions discussed; III. Concerning the Recriminatory Fact condoned; IV.’ The Practice of the Courts and Evidence. 1 Deut. xxii. 138-19. ois 2 Proctor v; Proctor, 2 Hag. Con. 292, 297; Beeby v. Beeby, supra; Leicester’s ‘case, cited 1 Hag. Con. 148. * Beeby v. Beeby, 1 Hag. Ec. 789, 790, 3 Eng. Ec. 338, 389. See 2 Greenl. Ev. § 52; Mattox v. Mattox, 2 Ohio, 233. * Chancellor Walworth, in Wood v. Wood, 2 Paige, 108, 111. 31 [ 361 ] § 390 GENERAL VIEW OF DIVORCE. [BOOK Iv. I. A General View of the Doctrine. § 389 b. From what has already been said, the following definition of the law of recrimination may appear just ; namely, that it is a bar to the matrimonial suit arising from the complainant’s being in like guilt with the one of whom he complains. This definition, however, is not precisely ex- act in itself, neither especially is its application in the cases to come up always easy. Fof, though “like guilt,” in the plain- tiff, should plainly deprive him of any advantage by reason of the defendant’s guilt, yet, — What is like guilt? One dif- ficulty has perhaps sprung from the fact of some judges not seeing the doctrine itself to be wise, whence they have not felt justified in applying it beyond the letter of the prece- dents. - § 390. In France, formerly at least, the doctrine of recrimi- nation was unknown; but the obvious reason is said. to be, that adultery in the husband was not, like adultery in the wife, a legal ground for separation.! Into Scotland, as into Eng- land, the doctrine was imported from the Roman and canon laws, and it prevailed down to a late period; but, at last, the Scotch courts refused to recognize it, except as the foun- dation for a cross-suit. When a cross-suit is in Scotland brought, a decree will not be pronounced in the first one, until both suits are ripe for judgment; unless in cases of unnec- essary delay. If both parties show themselves entitled to a divorce, the court will, on demand of either, order the de- cree to be entered. Substantially, therefore, recrimination is now no bar to a divorce in Scotland, “though mutual guilt may affect patrimonial consequences.”? In this conflict of opinion abroad, in respect even to the utility of the doctrine 1 Lord Stowell, in Forster v. Forster, 1 Hag. Con. 144, 4 Eng. He. 358, 360. 3 1 Fras. Dom. Rel. 672. [ 362 ] CHAP. XXx.} RECRIMINATION. § 391 itself, it is not strange that the American judges have not been entirely harmonious in defining its limitations, in the jurisprudence of this country. § 391. In the midst of the judicial differences on this sub- ject, we find one point at which the common law authorities, English and American, are agreed. It is, that, whenever plaintiff and defendant are both guilty of adultery, which- ever adultery was the first committed, even though the re- criminatory fact followed the separation which took place on the discovery of the offence relied on for the divorce, the suit is barred! It has also been held, and it is little questioned, that a single act of adultery is sufficient in bar, whatever the extent of guilt on the other side2 When, moreover, we look after the modern English law, we find some further points to be settled in England at present; but how they stood there at the time the common law of England was received by us, as our inheritence from the mother country, may be doubtful. Thus, it is the established English rule, at least in modern times, that cruelty cannot be pleaded in bar to a charge of adultery. Yet the converse has not been laid down; namely, 1 Proctor v. Proctor, 2 Hag. Con. 292; Brisco v. Brisco, 2 Add. Ec. 259, 2 Eng. Ec. 294; Poynter Mar. & Div. 222; Smith v. Smith, 4 Paige, 432 ; Mattox v. Mattox, 2 Ohio, 233; Christianberry v. Christianberry, 3 Blackf. 202; Wood v. Wood, 2 Paige, 108; 2 Kent Com. 99. 2 Astley v. Astley, 1 Hag. Ec. 714, 3, Eng. Ec. 303, 307; 2 Greenl. Ev. § 52. * Harris v. Harris, 2 Hag. Ec. 376,4 Eng. Ec. 160,176; Cocksedge v. Cocksedge, 1 Robertson, 90; Scrivener v. Scrivener, cited 1 Robertson, 92; Eldred v. Eldred, 2 Curt. Ec. 376, 7 Eng. Ee. 144; Chettle v. Chettle, 3 Phillim. 507. Though, in the English courts, cruelty alone is not plead- able in bar of a suit for adultery ; it may be joined with a plea of adultery, on the ground that proof of it aids the proof of the adultery. Cocksedge v. Cocksedge, supra; Arkley v. Arkley, 3 Phillim. 500, 1 Eng. Ec. 461; Forster v. Forster, 1 Hag. Con. 144, 4 Eng. Ec. 358, 360; Eldred v. Eldred, supra. Neither can the defendant wife set up the sole plea of cruelty, for the purpose of asking a divorce for it, if the husband should fail in proving his charge of adultery. Scrivener v. Scrivener, cited 1 Robert- son, 92. And query, whether, where in answer to a suit for adultery the [363 ] § 392 GENERAL VIEW OF DIVORCE. [BOOK IV. that, when a wife has brought her suit on the ground of cruelty, the husband cannot defend it by showing her adul- tery;! indeed it appears, that he can, even in England ;? while, in this country, it has been distinctly decided that adultery is a good bar of a divorce suit from bed and board for cruelty,3 especially if the adultery occurred before the cruelty was inflicted4 It may be observed, that, in the States where this has been so held, adultery is a cause of divorce from the bond of matrimony. And, to return to the English law, a late writer says, “it may seriously be doubted, whether a recrimination of cruelty is a good plea in answer to a suit charging the same offence.” 5 II. Particular Propositions discussed. § 392. Looking at the English law, as imported by our forefathers into this country, we should remember, that it allowed no dissolutions whatever of marriages originally valid, and that so its doctrines became established as apply- ing only to divorces from bed and board. And when the divorce sought is from the bond of matrimony, perhaps rea- sons not applicable when it is from bed and board should influence the tribunal. Therefore the questions of difficulty in this country are, First, Whether, in the single State or two in which the law is here as it used to be in England, the English rule, which refuses to receive a plea of cruelty as a sufficient recriminatory answer to a charge of adultery, shall be followed; Secondly, Whether, where the divorce is to be wife pleads both adultery and cruelty, and the adultery is not proved on either side, but the cruelty is proved, she can then have a decree of divorce for the cruelty. Cocksedge v. Cocksedge, supra. ? Dillon v. Dillon, 3 Curt. Ec. 86, 7 Eng. Ec. 377,880. See Best v. Best, 1 Add. Ec. 411, 2 Eng. Ec. 158, 171. * Watkyns v. Watkyns, 2 Atk. 96. ® Holmes v. Holmes, Walk. Missis. 474. But see observation of Chancel- lor Walworth, in Smith v. Smith, 4 Paige, 92. 4 Bedell v. Bedell, 1 Johns. Ch. 604. 5 Brandt Div. 87. [ 364 ] CHAP. XX. ] RECRIMINATION. § 393 from the bond of matrimony, for cause made sufficient by statute, be it adultery or any other, the defendant can plead, in recrimination, any matrimonial offence which is ground only for separation from bed and board; Thirdly, Whether, when several offences, —such as adultery, cruelty, desertion, and the like, —are each made by:statute cause for divorce from the bond of matrimony, a plea of any one of them will be good in bar of a suit founded on any other of them. Let us consider these three points in their order. § 393. First. Where only adultery and cruelty are causes of divorce, and they, merely from bed and board, is the English rule, which refuses to make cruelty a bar to the divorce for adul- tery, to be followed? No evidence appears, satisfying the writer, that the rule mentioned as the English one was estab- lished in England previoys to the emigration of our forefathers to this country, and, if it was not, the authorities from the English books are not absolutely binding here. The doctrine of recrimination is laid down by Ayliffe, referring to two de- cretals, or, in the language of our own law, decisions, of Pope Gregory IX.;! in the first of which it was simply held, that a plaintiff who has committed adultery cannot have a divorce by reason of the defendant’s adultery; and, in the second, that, where a separation from bed and board has been had on the ground of adultery, it shall be vacated, and the parties or- dered to return to cohabitation, if afterward the complainant himself commits adultery.2— And Ayliffe proceeds to say, that, “since there are some misdemeanors that are taken away by mutual compensation, of which adultery is one, a compensation may be made of this crime; for it is unjust for one person to judge of another, and not give another leave to judge of himself.” Oughton states the doctrine thus: Com- 1 Lib. 4, tit. 19, c. 4 & 5, Corp. Jur. Can. p. 221 of the Decretals. 2 Sanchez states the doctrine of recrimination to be, “ Quia alter conjux est ejusdem criminis particeps, aut pariter adulterans; aut adulterio alterius prebens.” De Divortio, lib. 10, disp. 5. 5 Ayl. Parer. 226. 31* [ 365 ] § 394 GENERAL VIEW OF DIVORCE. [Book Iv. pensatio criminis est, si pars rea probaverit partem agentem etiam adulterium commississe, absolvenda est pars rea, quoad petita in libello partis agentis § 394. But this statement goes no further than to confirm the universally received doctrine, that adultery may be set up in bar of a divorce suit for adultery. And it was applied, in the ecclesiastical law, only in the civil suit, that is, only in the divorce suit, not in the criminal, for the punishment of the adultery. “ Where,” said Lord Stowell, “a wife is prosecuted criminally for adultery, not for divorce, but ad publicam vindic- tam,” the adultery of the husband “cannot be pleaded; for there the public, not the husband, is the injured party, and it can be no excuse for the wife’s breach of the good order of society that her husband had done so before her, whatever it might be in a mere civil prosecution, instituted by himself.”’? But the first trace of judicial opinion, as seen in the reports, upon the further question, whether cruelty will bar a divorce suit for adultery, appears to be in some observations, which, in 1790, this learned judge made in the same case, as follows: “ A third plea of defence offered, but with less effect, is, that his treatment of his wife was, as it really appears to have been, marked with unkindness and disaffection. I say with less effect, because if the course of unkindness was such ag the law would notice, the remedy is not that to which she has unhappily resorted, but an application to this court for the protection of a separation by reason of cruelty. And if the ill treatment is not of that gross kind against which the law would relieve in this form, still she is not to find her remedy in the contamination of her own mind and person, but in the purity of her own conduct, and in a dignified submission to an undeserved affliction.”®- And two years subsequently, in another case, he observed: “ Indifference, ill behavior, or cru- ? Oughton, tit. 214, * And see, for illustrative matter, 1 Bishop Crim. Law, § 340, 341. * Forster v. Forster, 1 Hag. Con. 144, 4 Eng. Ec. 358, 360, 361. [366 ] CHAP. XX.] RECRIMINATION. § 395 elty is not pleadable in a suit for adultery ;” that is, in bar of the suit. “It will not justify her criminal misconduct.” 1 § 395. Passing down the line of time, we come next, in 1810, to the case of Chambers v. Chambers; and here we find, from the same accomplished judge, a dictum which has been the basis of all subsequent judicial determination upon this point. It is material, as not only showing upon what reasons the present English rule is placed by the courts; but also as showing, that this first judicial expounder or promul- gator of it, who probably knew more of what had gone before than almost any other ecclesiastical judge, did not consider it then settled on authority. He said: “On this plea, the ques- tion might arise, whether a party would be entitled to bar her husband from his remedy of divorce for adultery, proved against her, by the plea of cruelty? Iam inclined to think that she would not. It is certain, that the wife has a right to say, ‘you shall not have a sentence against me for adultery, if you are guilty of the same offence yourself.’ The received doctrine of compensation would have that effect, because both parties are in eodem delicto; but this is not so in recrimina- tion of cruelty; the delictum is not of the same kind. If the wife was the prior petens in a suit of cruelty, 1 do not know that she would be barred by a recrimination of that species ; for the consideration would be very different; the court might not oblige her to cohabitation, which would be dangerous. Here the husband is a prior petens in a suit of adultery, and I take the general doctrine to be, that a wife cannot plead cruelty as a bar to divorce for her violation of the marriage bed.” 2 Upon this Dr. Lushington has observed: “I candidly say, I entertain doubts whether the reason given is the most satisfactory that could be adduced; because, if this effect arises out of the difference in the nature of the two offences, it follows, é converso, that, where the wife has brought a suit | 1 Moorsom v. Moorsom, 3 Hag. Ec. 87, 5 Eng. Ee. 28, 30. ? Chambers v. Chambers, 1 Hag. Con. 439, 4 Eng. Ec. 445, 451. [ 367 } § 396 GENERAL VIEW OF DIVORCE. [Book Iv. on account of cruelty, the husband cannot plead her adultery in bar, a proposition which I am not aware has ever been laid down in these courts.”1 But ina later case he seems to have yielded to this reasoning of Lord Stowell. § 396. Now it has been held, apparently with great pro- priety, in Missouri, that the court cannot distinguish between different matrimonial offences, to which the law attaches the same consequence It would therefore seem to follow, as in the Missouri case 4 it was substantially adjudged, that adul- tery and cruelty are, within the principle upon which recrimi- nation proceeds, idem delictum. And the very obvious truth, that the husband’s cruelty cannot justify the wife’s adultery, can have no bearing; because his adultery, which it is ad- mitted she may plead in recrimination, can no more than his cruelty justify her adultery; and because the question of her justification does not arise, until it is first determined whether he is himself entitled to ask the aid of the court. The matri- monial relation is one of mutual dependence and duty; and it would seem to be within all legal analogies, and all sound canons of morality, to refuse to hear a plaintiff complaining of the defendant’s infraction of one of the links of this common chain, when he had equally broken another. Moreover the law is for the assistance of those who obey it, not those who violate it;5 and, when two parties are both in the same wrong, the court helps neither. Three distinct queries, there- fore, arise, — first, whether the principle here suggested is not that upon which the before-mentioned decretals of Gregory 1 Dillon v. Dillon, 3 Curt. Ec. 86, 7 Eng. Ec. 377, 380; ante, § 391. ? Cocksedge v. Cocksedge, 1 Robertson, 90, 92. 3 Neagle v. Neagle, 12 Misso. 53. But see Lovett v. Lovett, 11 Ala. 763. ‘And see post, § 403. 4 Neagle v. Neagle, supra. 5 See Christianberry v. Christianberry, 3 Blackf. 202; Rhame v. Rhame, 1 McCord’s Ch. 197, 202; Mattox v. Mattox, 2 Ohio, 233. ® Ante, § 388. [ 368 J CHAP. XX. ] RECKIMINATION. § 397 IX.1 proceeded, and the true canon law.? Secondly, if it is not, whether, when the doctrine is engrafted upon our juris- prudence, it should not assume this shape, agreeably to the genius and spirit of the common law; the same as a foreign word, introduced into our language, takes the English form. Thirdly, whether the common law itself, by its own power and reasons, without any extrinsic aid, does not necessarily sustain this view; even, if need be, against the weight of the canon law, as well as of the present ecclesiastical law of Eng- land. These queries are merely stated, not to be discussed here. § 397. Some allowance, however, should be made for hu- man frailty; and it would be unreasonable to require the matrimonial conduct of the plaintiff to be quite without blemish, as the condition on which alone he could be per- mitted to carry on his suit for the defendant’s greater wrong. But precisely where the line between the sufficient and the insufficient should be drawn, may be a matter of difficulty. On strict principle, the bar should probably take place in all cases in which, either the plaintiff has been unrepentantly guilty of what, in the last chapter, we termed conjugal un- kindness ;2 or guilty of conduct, which, in view of the frailty of human nature, should render it necessary for the other party to cease the cohabitation. But this rule may be found difficult of application; so practically the courts may well enough follow the English rule; namely, that the misbehavior of the plaintiff, to be an absolute bar, must be of a nature ? Ante, § 393, ? According to the prevailing opinion of the canonists, heresy, called in the canon law spiritual adultery, might be shown in bar of a suit for carnal adultery ; though Sanchez does not like the rule. But carnal adultery would not bar a divorce suit founded on spiritual adultery; because the latter was the greater offence, and because it would endanger the soul of one of the spiritually faithful, carnally an adulterer, to dwell in matrimony with aheretic. Sanchez, lib. 10, dis. 16. * Ante, § 371 a-380 a. [ 369 ] § 397 GENERAL VIEW OF DIVORCE. [BOOK IV. to render it a sufficient legal foundation for, at least, a judicial separation.! But, as two offences only, adultery and cruelty, are by the English law sufficient for divorce,? the operation of the rule sometimes compels the judges to pronounce for the separation under the consciousness that it will have an evil and immoral tendency: Thus Lord Stowell, in a case where there was much blame on the part of the complaining husband, employed language which afterward found an echo in the clear understanding and strong moral sentiment of Dr. Lush- ington, as follows: “In pronouncing for a separation, I feel that I shall tolerate a negligent inattention to marital duty; and that I shall pronounce a decree that will not lead to the peace and honor of families, nor the purity of private life.” ® And, in refusing under this rule to allow the utter and wilful desertion, by the complaining husband of his wife, to be a bar to his remedy of divorce for her subsequent adultery,* the } Perhaps the rule has not been laid down in terms as here stated; but this is clearly the result of the cases. 2 By Stat. 20 & 21 Vict. c. 85, § 16, “ desertion, without cause, for two years or upwards,” is now made ground for judicial separation in England. ® Moorsom v. Moorsom, 8 Hag. Ec. 87, 117, 5 Eng. Ec. 28, 42; Phillips v. Phillips, 1 Robertson, 144, 164. * One cannot but feel a peculiar embarrassment in attempting to state the conclusions to which the ecclesiastical courts have arrived ; when, after read- ing the cases cited to this section, and other cases of a kindred tenor and spirit, he alights upon the following period, from a decision of Sir Herbert Jenner Fust (Clowes v. Clowes, 9 Jur. 356, 4 Notes Cas. 12), made, after the other decisions here referred to, in the year 1845: “The question of malicious desertion,” he said, “‘is one which has frequently been adverted to in these courts, but has never yet received an absolute decision, whether it be a ground of bar to a divorce.’ This learned judge, however, distin- guishes between “malicious” and “ wilful” desertion; and says, that the case of Morgan ». Morgan “could not be carried beyond the wilful deser- tion.” The distinction is very nice ; it is also unusual, at least in this country. In Pennsylvania it has been considered, that the word maliciously is an equiv- alent for the word wilfully in an indictment for arson. Chapman v. Com- monwealth, 5 Whart. 427. And see Butler v. Butler, 1 Parsons, 329. In Scotland, where “ malicious desertion” is cause for divorce, no other effect seems to be given the word “ malicious” than as referring to the intent in the mind to desert; which idea would be equally well expressed by the word [ 370 ] CHAP. XX.] RECRIMINATION. § 398 latter of these distinguished judges employed the following language: “ She, a girl of nineteen, of great personal beauty (as stated by all the witnesses), recently married, is at once left, I will not say to the risk, but almost to the certainty, of destruction. To the wife, this marriage, followed up by a divorce, leaving her without any claim to maintenance, has proved utter ruin. I do not extenuate her guilt; but I can- not forget the situation of a young married woman, thus sud- denly separated from her husband. To the husband, the con- sequences have been some expense, some trouble, exile from home during the period he has been in India (where the wife has had no means of watching his conduct), and a judgment in this court; by which, if it decrees a divorce, he will be ab- solved from all legal obligation of maintaining his wife; and, it may be, an act of the legislature dissolving the marriage. That such an example can be otherwise than prejudicial to public morals, cannot for a moment be stated.” } § 398. But it is well settled in England, as far as judicial “ wilful,” or by the word “ desertion” alone, without either adjective. See 1 Fras. Dom. Rel. 682, 685. In Beeby v. Beeby, 1 Hag. Con. 142, note, 4 Eng. Ec. 358, the court observed: “ Separation is not considered by the ecclesiastical court as a bar to divorce for adultery, either previous or sub- sequent to the act alleged. It is not an answer to such a charge, even in cases of malicious desertion.” And see s. P. Forster v. Forster, 1 Hag. Con. 144, 154, 4 Eng. Ec. 358, 364. See also Grant v.’Grant, 10 Jur. 103. In a late Tennessee case, however, the court seems to have given the word “malicious,” as used in the statute, a meaning similar to what lay in the mind of Sir Herbert Jenner Fust. Stewart v. Stewart, 2 Swan, Tenn. 591; post, § 505. 1 Morgan v. Morgan, 2 Curt. Ec. 679, 7 Eng. Ec. 254, 259; 25 Leg. Obs. 18. And see the observations of Chancellor Walworth, in Peckford v. Peck- ford, 1 Paige, 274. But see Reeves v. Reeves, 2 Phillim. 125, 1 Eng. Ec. 208, and Sullivan v. Sullivan, 2 Add. Ec. 299, 2 Eng. Ec. 314, where Sir John Nicholl expressed somewhat different apprehensions of the moral con- sequences. The North Carolina court has held, that, if a wife, without legal cause, leaves her husband, and refuses to live with him, she cannot have a divorce from the bond of matrimony for his subsequent adultery. Foy v. Foy, 13 Ired. 90. See post, § 399 and note. [871] § 399 GENERAL VIEW OF DIVORCE. [BooK Iv. dicta can alone establish such a point, that, where adultery is pleaded by way of recrimination merely, it is not necessary to prove such strong facts as would be requisite to convict on a direct proceeding for divorce. The reason assigned is, that the party, who enters the court with a criminal imputation on the other, must purge his own conduct of all reasonable im- putation of the same sort And though it might seem, from observations in one of the cases, that solicitations of chastity, coming short of the very act, are sufficient in re- crimination,” yet this has been doubted ;* and it is clearly laid down, that a defendant who sets up the plaintiff’s adultery must prove it, to make good his bart Since a plaintiff, who relies on the defendant’s adultery, is obliged to do no more than prove his case, there would appear to be little scope for this distinction. § 399. Secondly, Where the divorce is from the bond of matrimony, will any conduct, in the plaintiff, made by law foundation for only the limited divorce, bar the suit? The answer to this question depends much on the reasons brought forward under our first inquiry; so the reader is requested to consult them. But, supposing those reasons not to be con- clusive of the point there discussed, still they may lead to the consequence, that these minor offences shall bar the suit for divorce from the bond of matrimony. For a distinction has ’ been taken, both in England and the United States, as to the two kinds of divorce. Thus Sir John Nicholl, in one case, 1 Forster vy. Forster, 1 Hag. Con. 144,4 Eng. Ec. 358, 363; Astley v. Astley, 1 Hag. Ec. 714, 3, Eng. Ec. 303, 306. 2 Forster v. Forster, supra. * Chettle v. Chettle, 3 Phillim. 507. * Stone v. Stone, 3 Notes Cas. 278 ; Goodall v. Goodall, 2 Lee, 384. “It must be manifest, that, if once the guilt of the husband be established, the onus probandi shifts; and, if he seeks to deprive her of her remedy by im- puting a charge of criminality of any kind, he should make good that charge by evidence which admits of no dispute.” Dr. Lushington, in Turton v. Turton, 3 Hag. Ec. 338, 350, 5 Eng. Ec. 180, 136, [372] CHAP. Xx. | RECRIMINATION. § 399 observed: “ Whether such a husband, morose, severe, inat- tentive, negligent, should be entitled to a special legislative interference, dissolving the marriage, and enabling him to marry again, is quite a different question, and rests upon very different principles ; but his conduct does not amount to a legal bar to a sentence a mensé et thoro.”’1 And it has been held, that, where the divorce sought is from the bond of matrimony, the English authorities in respect to divorces from bed and board are not in point. Because, on an appli- cation for the latter kind of divorce, there may be reasons in favor of granting it, as to save a husband from being charged with a spurious issue, or the supporting of an adulterous wife, which would be overbalanced by other reasons, if the divorce were from the bond of matrimony. Dissolutions of the marriage have reference to a second marriage; and he who would ask this privilege should have himself discharged properly the duties of the first. 1 Rogers v. Rogers, 3 Hag. Ec. 57, 5 Eng. Ec. 13, 21. 2 Wood v. Wood, 5 Ired. 674. See also Moss v. Moss, 2 Ired. 55; Foy v. Foy, 13 Ired. 90; Whittington v. Whittington, 2 Dev. & Bat. 64. In the case last cited, Ruffin, C. J., says: “ The divorce from the bonds of matri- mony is not to be granted merely because one ov both of the parties wish it. It ought to be granted only in the extreme case, where the conduct of one party is such that they ought not to, and cannot, live together; and the other party has been, and was, up to the time of the conduct complained of, willing and ready, and proceeding in the performance of the duties appro- priate to that party.” These North Carolina decisions may have received a certain tinge from the statute of that State, which authorizes the court, in some circumstances, to grant a divorce from the bond of matrimony, or from bed and board, at discretion. Ante, § 294. Vice-Chancellor McCoun once observed : “I am convinced it is the duty of this court to hold a strict hand over the proceedings, and not to grant a decree which is to absolve ” the parties “from their marriage vows, except where the complaining party is entirely innocent, and is really aggrieved by the misconduct of the other, and seeks the relief which the law affords from a sincere desire to avoid a greater shame.” Hanks v. Hanks, 3 Edw. Ch. 469. See also Christian- berry v. Christianberry, 3 Blackf. 202; Ryan v. Ryan, 9 Misso. 539. In Sloan v. Cox, 4 Hayw. 75, it was substantially stated, in the opinion of the court, that a divorce from bed and board is no bar to the defendant’s right 32 [373] § 400 GENERAL VIEW OF DIVORCE. [Book Iv. § 400. The English parliament, in its late procedure in granting divorce bills dissolving the marriage, though bound by no law but its own pleasure, had still an established course, “become as much the law of parliament as the practice of the courts below constitutes the law of those courts.”! According to which, on a petition charging adultery, not only might adul- tery be set up in recrimination ;? but plainly cruelty might be also, though no exact decision on this point is now before the author. But where a husband had lived separate from his wife for many years, without making any provision for her, being able; the House of Lords refused to grant him a divorce, notwithstanding the evidence showed her to be a common prostitute; because he had neglected her, cast her upon the world without caring what -became of her, and allowed her nothing for her support. to bring a suit against the plaintiff, for divorce from the bond of matrimony, on the ground of adultery afterward committed. But this was not the point in issue. 1 Lord Brougham, in Moffat’s case, Macqueen Parl. Pract. 658. 2 Bland’s case, ib. 605. * 8 Simmons’s Divorce bill, 12 Cl. & F. 339. In the recent Batley divorce case, a newspaper report only of which I have seen, “the Lord Chancellor, at the conclusion of the evidence, said this was a case in which he felt it to be his duty to move that the second reading of the bill be postponed, to allow the house time for further consideration. There was no evidence whatever to affect the wife’s character previous to her marriage. Then, with respect to the alleged deception [with regard to her parentage] which had been practised, it must be, in the first place, remarked, that Batley had been guilty of deception towards her, in representing, when they were mar- ried, that he was of full age, when it was shown that he wasa minor. He had married her with a full knowledge of her mode of life and means of livelihood. [She had supported herself before marriage by needle-work.] He had been a visitor at the house; and had, therefore, the means of ascer- taining her character previous to the marriage. He (the Lord Chancellor) was not going to justify the subsequent conduct of the woman — for it could not be justified — but what were the probable consequences of the desertion of the wife by her husband, but those which had followed? Deserted by her husband, she is compelled to apply to a magistrate, who makes an order for an allowance of 7s.a week. She received, therefore, only a shilling a day from the man for whom she had given up her business, throwing herself [374] CHAP. XX.] RECRIMINATION. § 401 § 4004. Probably the matters to be brought forward under our third inquiry will shed further light on the present subject. There is an Illinois case, being a suit for divorce from the bond of matrimony for cruelty, wherein the jury found the alle- gations of the plaintiff wife to be true, except the allegation in which she claimed to have been a dutiful wife; but the court held her nevertheless to be entitled to the divorce. This decision is doubtless just; and plainly there may be such ill conduct on the part of the plaintiff as ought not still to bar the suit; yet, at least, if the ill conduct has gone far enough to be ground for a divorce from bed and board, the one guilty of this should not prevail, when coming into court to complain of a little deeper shade of guilt in the other. Yet that this proposition, or any other proposition concerning the matter of our present inquiry, is established in the American law, could not be asserted. § 401. Thirdly. When the divorce is from the bond of matri- mony, if the defendant shows, in recrimination, acts of the plain- tif also amounting to cause for the same divorce, though they may not be, or though they may be, acts under the same name, will they bar the suit? Plainly, if the author’s view of the answer to be given to our second question is correct, this question, a fortiori, should also be answered in the affirmative. And besides the considerations mentioned in the foregoing sec- tions, some further ones present themselves here. Thus, if the bar now treated of does not suffice, we have this perplexing state of things, that cross-suits may be brought, both parties may be entitled to prevail; yet, if both do prevail, both are the guilty and both the innocent party under statute laws, which leave different rights, duties, and pecuniary interests, to the out of employment, and the means of obtaining an honest livelihood, to place herself under the protection of a husband, who, for reasons wholly unsup- ported by evidence, deserted her at the end of one short week. The motion for the postponement of the second reading of the bill was then agreed to, and the house adjourned.” See ante, § 397. 1 Thatcher v. Thatcher, 17 Ill. 66. [375] § 403 GENERAL VIEW OF DIVORCE. [BooK Iv. guilty from those which fall to the innocent. And this result shows, distinctly as though the legislature had used exact words, that the bar must be good; since, unless it is good, the statutory provisions concerning these collateral matters can- not have effect. This argument meets the question as it stands in most, probably every one, of the States in which a direct legislative provision on the subject does not exist; for probably all the statutes discriminate, in some way, between the guilty and the innocent party, on and following a divorce! § 402. Looking after specific authority, we find a case in which — desertion for a specified number of years, and adul- tery, being severally statutable grounds for divorce — it seems to have been held, that: the plaintiff’s adultery is a good bar to her suit for the defendant’s desertion ;? and we find another case in which, under a similar system of matrimonial laws, it was intimated by the court, on referring to an English decis- ion, that desertion would not bar a proceeding for adultery? But an examination of these cases shows, that neither of them should have much weight, in respect to the point we are discussing ; more especially when we consider, that, after the commission of an act of adultery, desertion, commenced or continued, is justifiable, on a principle different from recrimination. § 403. The statute of Missouri provided, that, in, certain cases therein enumerated, the “innocent and injured: party” should be entitled to a divorce from the bond of matrimony. 1 See also, on this matter, Cooper v. Cooper, 7 Ohio, 238; Tarbell, peti- tioner, 32 Maine, 589; Dejarnet v. Dejarnet, 5 Dana, 499. * Dunbar v. Dunbar, Wright, 286. The proceeding was founded on the defendant’s desertion, which was clearly proved ; but it appeared also, that the complainant had been living for six or seven years in adultery with a man who was in court, prosecuting the suit. The court dismissed the bill, and ordered the sheriff to take into custody the adulterer, who was bound over to answer criminally for the adultery at the next term of the court. And see Page on Div. 240. 3 Richardson v. Richardson, 4 Port. 467, 478. [376 ] CHAP, XX.] RECRIMINATION. § 403 Tt also provided, in a separate section, that, when “both par- ties have been guilty of adultery, then no divorce shall be decreed.” Under this statute the courts deny the divorce also, whenever both the parties are guilty of any of the enu- merated offences. Observed the learned judge, in one case : “Tt cannot, with reference to the rights of the injured party, be said, that adultery is a more heinous offence, or one of greater moral turpitude, than others enumerated in the act; for the effect of each is the same, as they severally entitle the party injured to a divorce.” Again, “the whole act evidently contemplates the innocence of the party obtaining a divorce. With what propriety could the court divorce a husband from his wife, because of desertion on her part, when she had been driven to abandon her home because of the cruel and bar- barous treatment of the husband? Or how shall the court determine which is the innocent and injured party, where the evidence establishes the fact that the wife has been addicted to habitual drunkenness for the space of two years, and then the husband has been guilty of adultery? Which party has a right to apply to the court to set aside and vacate the mar- riage contract, when both parties have been guilty of a breach thereof?” In an earlier case, however, under a similar stat- ute, the Supreme Court of Pennsylvania, it would seem with questionable propriety, had decided, overruling the Court of Common Pleas, that the specific provision, for recrimination where there was mutual adultery, excluded the general right.? Therefore a plea of adultery was held not to be good in bar of a suit on the ground of desertion. This latter case appears also to be an authority for another point, still more question- able ; namely, that desertion, continued for the period pre- scribed in the statute, is sufficient ground of divorce, al- though, during the later portion of the period, it was justifi- oo " Nagle v. Nagle, 12 Misso. 53; Ryan v. Ryan, 9 Misso. 539. And see ante, § 396. * See, as a question of statutory interpretation, 1 Bishop Crim. Law, § 91, 92. 32 * [377 ] § 405 GENERAL VIEW OF DIVORCE. [Boox Iv. able by reason of the plaintiff having, subsequently to the desertion, committed adultery. § 404. In Louisiana, the act of April 2, 1832, § 1, provides, “that, whenever a husband or wife, charged with an infa- mous offence, shall actually have fled from justice, and gone beyond the jurisdiction of the State, the husband or wife of such fugitive may claim a divorce, on procuring proof, to the judge who tries the petition for divorce, that his or her hus- band or wife has actually been guilty of such infamous of- fence, and has so fled from justice.” And it has been held under this statute, that a wife, guilty of adultery, cannot claim the divorce it provides from her husband, by reason of his having killed, in cold blood, the man with whom the adultery was committed, and then having fled from the State.” II. Concerning the Recriminatory Fact condoned. § 405. On this subject of recrimination, another difficult question remains. It is, whether a condoned offence is avail- able in recrimination.2? In Beeby v. Beeby, there was an at- tempt to take off the effect of very aggravated adultery, estab- ‘lished in recrimination, by showing a condonation of it. Lord Stowell was of opinion, that the condonation did not suffi- ciently appear in evidence; or, if it did, that there was sub- sequent adultery; and, at the same time, his mind leaned strongly to the opinion, that the condonation, if proved, and still in force, would not remove the bar. He observed: “ A man, it is true, who has forgiven adultery, cannot bring a suit; but, where he complains of his wife, will her forgiveness of his previous misconduct make him a proper person to receive the sentence of the court? Does her act bind the court? If both are equally guilty, will her condonation make him rectus in 1 Ristine v. Ristine, 4 Rawle, 460. 2 J. F.C. v. M. E. his wife, 6 Rob. La. 135. 8 Ante, § 354. [3784 CHAP. Xx. } RECRIMINATION. § 407 curia, and enable him to procure a sentence? ‘There may be cases where a wife may, by forgiveness, by cohabitation, by the reformation of the husband, be so barred that an obso- lete fact shall not be a defence! ..... Itis said, that con- donation is favored because it induces the parties to live together again; but here the effect would be to separate them, to shut the door more completely against a return; here, if the court does not pronounce a sentence of separation, is no impossibility of a return.”? § 406. In a subsequent case, before Dr. Lushington, where the adultery of the defendant wife was of a very profligate nature; and the husband had, many years before, been guilty of a single act of adultery, which she had forgiven; the divorce was granted. And in the course of his opinion, founded however on the special facts of the case,’ the learned judge employed language somewhat variant from the ‘foregoing intimations of Lord Stowell. He said: “ Where a condonation has taken place, with a full knowledge of the ° facts, it is said to be a conditional forgiveness. Conditional on what? On the future conduct of the husband. Suppose he fulfils the condition, and never after violates the obligation of the marriage bed, is the condonation to have no other effect than to bar a suit against him? I think the effect is to make him rectus et integer, except that his past transgression may be revived by subsequent misconduct.” # § 407. The New York court held, while uncontrolled by statute, that condonation does not necessarily remove the tecriminatory bar; and whether it will so operate or not must depend on the particular circumstances of the case.5 The 1 Ante, 379. * Becby v. Beeby, 1 Hag. Ec. 789, 797, 3 Eng. Ec. 338, 342. 3 See ante, § 15. : * Anichini v. Anichini, 2 Curt. Ec. 210, 7 Eng. Ec. 85. 5 Wood v. Wood, 2 Paige, 108; Morrell v. Morrell, 1 Barb. 318. [379 ] § 407 a GENERAL VIEW OF DIVORCE. [Boox Iv. Revised Statutes, however, have since established the uniform ' rule intimated by Dr. Lushington, in providing, that the court may refuse the decree “ when it shall be proved, that the com- plainant has also been guilty of adultery under such circum- stances as would entitle the defendant, if innocent, to a di- vorce.”1 In New Hampshire, the law has been laid down by the judges the same as it now stands in the New York stat- ute; but without any citation of authorities, or much appar- ent consideration of the question. It is furthermore observa- ble of the New Hampshire case, that the wife’s adultery, which was set up in recrimination, had been committed by the procurement of the husband? § 407 a. If we look at this question in the light of principle, we shall be led to the following result: That, after an offence has been condoned, the guilty one stands upright as to his relations with the other, so long as his own conduct is correct in all particulars; perhaps, even, when it is not fully correct. This places the forgiving party under no new liberty of evil doing; but, suppose the condoned offence were to operate as a recriminatory bar, then the’ forgiving party would have practically obtained a license for himself, when he suffered the condonation to pass. And surely any construction of a com- mon law or even a statutory rule, the effect of which is to license profligacy, or other ill conduct in the matrimonial rela- tion, is to be most strenuously avoided. ? Morrell v. Morrell, supra. But the court, in a subsequent stage of the same case, put, without deciding the point, some pertinent queries whether the true construction had been given to the statute. “The circumstances meant,” observes Sill, J., “are undoubtedly absence of procurement, or con- nivance, or any thing else which would involve the other party, directly or indirectly, in the guilt of the act. But it seems to us, that condonation and lapse of time (where they have transpired), cannot appropriately, and with- in the meaning of the statute, be taken as the circumstances under which the party is guilty. They have no connection with the commission of the offence.” Morrell v. Morrell, 3 Barb. 236, 241. 2 Masten v. Masten, 15 N. H. 159. Ante, § 332. [ 380 ] CHAP. XX.] RECRIMINATION. § 409 IV. The Practice of the Courts and Evidence. § 408. A defendant, who would rely upon matter of recrim- ination, must plead and prove it! Even where, in the chan- cery practice, the bill has been taken pro confesso, without plea, evidence of the recriminatory matter has been deemed inad- missible on the hearing before the master to establish the defendant’s guilt2. A plea of recrimination may be joined with a denial of guilt And where the complainant has committed adultery since the answer or plea was put in, the defendant will be permitted, on application made within a reasonable time after the discovery of the fact, to set the fact up in plea, or in a supplemental answer, or by a cross-bill in the nature of a plea puis darrien continuance! And it has been intimated, as it would seem necessarily to follow from established principles, that, when a case has been sent to a jury, —if the plaintiff, after a verdict in his favor, but before a decree, contracts a second marriage and cohabits under it, he can have no benefit from the verdict; the rule being, that adultery will bar, if committed at any time before sen- tence.6 § 409. On the other hand, the plaintiff must so prove his case as not to show at the same time a bar. And when upon his own evidence his guilt appears, he cannot have the remedy he asks.7 1 Smith v. Smith, 4 Paige, 432; Pastoret v. Pastoret, 6 Mass. 276. 2 Johnson v. Johnson, 14 Wend. 637. See ante, § 382, note. ® Smith v. Smith, supra; Hopper v. Hopper, 11 Paige, 46; Forster v. Forster, 1 Hag. Con. 144, 4 Eng. Ec. 358; Wood v. Wood, 2 Paige, 108. * Smith v. Smith, supra; Brisco v. Brisco, 2 Add. Ec. 259, 2 Eng. Ee. 294. 5 Stanford v. Stanford, 1 Edw. Ch. 317. " Brisco v. Brisco, supra; Smith v. Smith, supra. See ante, § 349, 383. 7 Timmings v. Timmings, 3 Hag. Ec. 76, 5 Eng. Ec. 22. And see ante, § 349, 384. [381 ] § 410 GENERAL VIEW OF DIVORCE. [Boox Iv. CHAPTER XXI. LAPSE OF TIME AND INSINCERITY. § 410. Two principles of natural justice pervade our juris- prudence; the one, that no man shall suffer because of his goodness or his forbearance; the other, that vigilance and care concerning one’s own rights shall be rewarded. The effect of these two principles, operating together, must be of necessity somewhat uncertain, and indefinite. But in the development of the Jaw, adjudications establish point after point, so that we have some of the consequences of the joint influence of these principles, well settled. The doctrine of the English courts is, that mere delay is not of itself, standing quite alone, sufficient to bar a party’s claim to a divorce; while, at the same time, it is always, if the delay is long, to be taken seri- ously into the account, as tending to establish insincerity in the plaintiff, or his condonation of the offence, or connivance at it; and thus, especially when the husband is plaintiff, indi- rectly defeat the suit; though, when the wife prosecutes, it can rarely produce this consequence! And where a husband was seeking a divorce for the adultery of his wife, Lord Stow- ell observed: “ The first thing which the court looks to, when a charge of adultery is preferred, is the date of the charge, relatively to the date of the criminal fact charged, and known by the party; because, if the interval be very long between the date and knowledge of the fact, and the exhibition of 1 Ferrers v. Ferrers, 1 Hag. Con. 130, 4 Eng. Ec. 354, and the cases stated in the notes; Dysart v. Dysart, 1 Robertson, 470, 541, 542; Angle v. Angle, 1 Robertson, 634, 642; D’Aguilar v. D’Aguilar, 1 Hag. Ec. 773, 3 Eng. Ec. 329, 334; ante, § 243, 243 a,and note. See Williamson v. Parisien, 1 Johns. Ch. 389; Williamson v. Williamson, 1 Johns. Ch. 488; Stokes v. Stokes, 1 Misso. 320. , [ 382 ] CHAP. XXI.] LAPSE OF TIME AND INSINCERITY. § 411 them to this court, it will be indisposed to relieve a party, who appears to have slumbered in sufficient comfort over them; and it will be inclined to infer either an insincerity in the complaint, or an acquiescence in the injury, whether real or supposed, or a condonation of it. It, therefore, demands a full and satisfactory explanation of this delay, in order to take it out of the reach of such interpretations.”1 But since the doctrine of condonation,? and the rules of evidence as to con- nivance,’ do not, in all respects, apply the same to the wife as to the husband, observations like the foregoing can have little relevancy to a suit promoted by her.* § 411. Therefore, if a man for a considerable space of time sees his wife living in open adultery, and takes no steps either to prevent it, or to obtain a divorce; he is presumed to have forgiven or acquiesced in the past, and to acquiesce also in the present; and he cannot succeed in his suit. It was so held, where the husband had lain by twenty years, while the wife was living with another man, to whom she was married. And a shorter period would ordinarily suffice.6 But for reasons already noticed,’ the same presumption would not arise against the wife, whose husband might be living in adultery with another woman. Yet in New Hampshire, in a case of cruelty, where the acts complained of transpired eight years prior to the institution of the wife’s suit, it was deemed neces- sary some occasion should be shown for the delay.® Let us observe, however, that, if the parties were cohabiting during ? Mortimer v. Mortimer, 2 Hag. Con. 310, 4 Eng. Ec. 548, 545. 2 Ante, § 368, 371. 5 Ante, § 342. * See Angle v. Angle, 1 Robertson, 634, 640, 641. 5 Ante, §345; Whittington v. Whittington, 2 Dev. & Bat. 64. 6 Williamson v. Williamson, 1 Johns. Ch. 488. And see Valleau v. Val- leau, 6 Paige, 207. T Ante, § 345. ® Angle v. Angle, 1 Robertson, 634, 642; D’Aguilar v. D’Aguilar, 1 Hag. Ec. 773, 3 Eng. Ec. 329, 333. ® Fellows v. Fellows, 8 N. H. 160. [ 383 ] § 413 GENERAL VIEW OF DIVORCE. [Boox Iv. the interval of delay, it would be difficult to say there was not a condonation ;! while, if they were not cohabiting, the Eng- lish doctrine would deduct the interval of Bon coNs hia on as against the wife.” § 4114. In a late Alabama case, a wife was held to be barred, by her great delay, of her suit to have the marriage declared null because of the insanity of her husband when married. Stone, J., said: “These parties were married in , 1826. Six years afterwards, in 1832, Mrs. Rawdon had notice that Mr. Rawdon was insane. She slumbered on her known tights twenty-two years, and filed this bill in 1854. Courts of equity, for the peace of society, discourage antiquated and stale demands; and, acting on this inherent doctrine, refuse to interfere where there has been a long acquiescence... . Lapse of time is a bar to relief in this case; and the parties, as to the property, must be left to their remedies at law, if they have any.” 3 § 412. Where there has been a delay which operates, prima facie, against the party, he is permitted to explain it. “ The principle,” says Dr. Lushington, “of this court and of all courts, is, that the husband ought to proceed with such celerity as the case admits of, to obtain the remedy he seeks; but I conceive it is also settled, that, if any circumstances occur which reasonably prevent him from proceeding, he is not thereby debarred from doing so, at a time more con- venient to him.” And where want of funds had compelled the husband to discontinue his suit against the wife, this learned judge permitted him to carry on a fresh suit on ob- taining the means. § 413. Accordingly in the English practice, the plaiatiff 1 Ante, § 357. 2 D’ Aguilar v. D’Aguilar, 1 Hag. Ec. 773, 8 Eng. Ec. 829, 334. ® Rawdon v. Rawdon, 28 Ala. 565, 568. * Cood v. Cood, 1 Curt. Ec. 755, 6 Eng. Ec. 452, 455. Ante, § 411. [ 384 ] CHAP. XXI.] LAPSE OF TIME AND INSINCERITY. § 414 sometimes introduces into his libel articles accounting for his delay in instituting the suit; but he need not examine wit- nesses upon them, unless the defence is such as to require him to justify his conduct.1_ The court has sometimes called upon the husband for his affidavit explanatory of his delay.? § 414. In some of the United States, are statutes either ex- pressly or impliedly limiting the period within which, after the discovery of the offence, the suit for divorce must be brought. A statute of this nature operates as an absolute bar. The knowledge of the offence in the plaintiff’s mind is matter to be shown by the defendant who sets up such a statutory bar4 And in New York, Chancellor Walworth, in constru- ing the statute which fixes the period of limitation at five years after this knowledge, said: “If the complainant knows, that his wife has contracted a second marriage and continues openly to cohabit with such second husband, or that she is living in open and continued adultery with another person even without the usual form of a marriage, the right ‘to file a bill for a divorce for such adultery will be barred after the expiration of five years; although such cohabitation or adul- terous intercourse is continued down to the time of the com- mencement of the suit. And when such continued adultery is open and notorious, the complainant must also satisfy the court, that, by reason of his absence from the country, or otherwise, he was not aware of the fact of such continued cohabitation and adultery until within five years from the time of the commencement of the suit.”5 The courts of the same State also apply this statute of limitations to suits of nullity for fraud; although the statute on the latter subject provides, that’a marriage may be annulled because the consent of one 1 Richardson v. Richardson, 1 Hag. Ec. 6, 3 Eng. Ec. 13. And see Val- leau v. Valleau, 6 Paige, 207; Fellows v. Fellows, 8 N. H. 160. ? Loader v. Loader, cited in Gilpin v. Gilpin, 3 Hag. Ec. 150, & Eng. Ec, 58, 60. 3 Moulton v. Moulton, 2 Barb. Ch. 309. * McCafferty v. McCafferty, 8 Blackf. 218; ante, § 385. 5 Valleau v. Valleau, 6 Paige, 207. 33 [ 385:} §4lda GENERAL VIEW OF DIVORCE. [BooK Iv. of the parties was obtained by force or fraud, during the life- time of the parties, or one of them. The meaning is, contem- plating the two statutes together, that the suit can only be brought while one of the parties is living, within the period of limitation. § 414 a. In a note to a preceding section, is given the ex- position of a learned English judge, of the doctrine which requires sincerity in the plaintiff, in order for his suit to pre- vail? Concerning this doctrine of sincerity ; or, rather, the doctrine of a defendant being permitted to go clear when the insincerity, as it is called, of the plaintiff appears; a single observation should be made. When a party comes into court for the purpose of deceiving the tribunal, not for the real pur- pose of obtaining what in words he asks, he should always be dismissed. An illustration of this proposition occurs where a man wishes to learn the law from the court; and, for this purpose, carries into court a fictitious cause. The tule is familiar, that parties in such circumstances will be dis- missed. And if a man, not desiring a divorce from his wife, should bring a suit for divorce against her, for the purpose of giving her trouble, or casting reproach on her reputation, or for any other reason than what appears in the case, he should be sent out of court. What is so far stated is plain. But, in reason, suppose a man chose not to avail himself of his legal remedy during the last year, or the last twenty years, yet did not condone the offence, why, if he really, and in good faith, desires now to avail himself of it, should he not be permitted todoso? Of course, if he has long slumbered over his rights, the court should inquire the more diligently whether he has not also remitted them. Yet mere slumbering over rights, or the wakeful attention to them in the mind, while lingering affection holds back the hand from which the blow might fall, ought not, whatever in fact it may sometimes do under judi- cial rule, to bar the remedy afterward sincerely sought. 1 Montgomery v. Montgomery, 3 Barb. Ch. 132. 2 Ante, § 343 a, note. [ 386 ] BOOK V. SPECIFIC GROUNDS OF DIVORCE. CHAPTER XXII. ADULTERY. Sect. 4142. Introduction. 415-420. The Law concerning Adultery. 421-458. The Evidence and Procedure. § 4145. Comine now to the consideration of specific mat- rimonial offences, made by statutes in the’ different States grounds of divorce, we shall first examine the law relating to adultery. In almost every State of our Union, this breach of ‘duty will authorize a judicial dissolution of the marriage, at the suit of the injured party. “We shall consider, I. The Law concerning Adultery ; II. The Evidence and Procedure. I. The Law concerning Adultery. § 415. Adultery is the voluntary sexual intercourse of a married person, with an individual not the husband or wife.1 1 « Adultery, by the law of Scotland, consists in the carnal connection of one of the married parties with any other person than him or her to whom he or she is married.” 1 Fras. Dom. Rel. 656. [387] § 415 SPECIFIC GROUNDS OF DIVORCE. [BooK v. In the criminal law, some difference of opinion has been entertained on points not necessary to be considered here.’ It has been held, that the criminal offence is committed when- ever there is an intercourse from which a spurious issue may proceed ; and that, in such a case, both parties are guilty of it, though one only is married.? Again, it is said, that “ the crime of adultery consists in the illicit commerce of two per- sons of different sexes, one of whom, at least, is married.” ® But in New Jersey, the majority of the court decided, that even a married man does not commit adultery by having a carnal connection with an unmarried woman; and in Vir- ginia the court held, that, when the woman is married, the act by an unmarried man is only fornication in him.’ Another opinion is, that, in all cases where one of the parties to an act of criminal intercourse is unmarried, it is fornication in such one, adultery in the married one.6 No difficulties like these have arisen in respect to divorce; for never has it been doubted, that, in this department of our law, it is immaterial whether the particeps criminis is married or single.? So the } See 2 Bishop Crim. Law, § 9, 10. 2 The State v. Wallace, 9 N. H. 515; The State v. Pearce, 2 Blackf. 318. ® The State v. Hinton, 6 Ala. 864; Hall v. Hall, 2 Strob.. Eq. 174, 187; Tebb’s Essay, 6,7; 35 Law Mag. 68; Shelford Mar. & Div. 386; Rees Cyc. voc. Fornication. 4 The State v. Lash, 1 Harrison, 380. 5 Commonwealth v. Lafferty, 6 Grat. 672. In a recent charge to the grand-jury, Galbraith, P. J., laid this down as the better law for Pennsyl- vania. He considered that the authorities in this State (see the next note) have not established a different doctrine. 4 Am. Law Register, 209. ® Commonwealth v. Call, 21 Pick. 509; Commonwealth v. Elwell, 2 Met. 190; Respublica v. Roberts, 2 Dall. 124; s.c.1 Yeates, 6; The State v. Hutchinson, 86 Maine, 261; Cook v. The State, 11 Ga. 53, 56; Common- wealth v. Burton, Recorder’s Decisions, 83, 85 ; 2 Greenl. Ev.§ 48; Bouvier Law Dict. voc. Adultery; Train & Heard Preced. 22. And see Godol. Ab. 469,476; Ayl. Parer. 43; The State v. Way, 6 Vt. 311. In Massachusetts it is provided, R. S. c. 130, § 1, that, “ when the crime is committed between a married woman and a man who is unmarried, the man shall be deemed guilty of adultery, and be liable to the same punis:ment.” ™ See 1 Swift’s System, 192; Reeve Dom. Rel. 207; Commonwealth v. Call, supra. [ 388 J CHAP. XXII. ] ADULTERY. § 416 offence which justifies a divorce may be committed with a: negro slave.! § 416. Some persons have supposed, that, as a matter of sound legislation, a difference should be made between adultery in the wife, and adultery in the husband; since the latter does not impose on the marriage a spurious issue, while the former may.2 But neither the late English law, nor the laws of the States of continental Europe generally, make any difference, except that, in England, the practice of parliament in granting divorce by special act used to be, to interfere as a general rule in favor of the husband, and as a general rule to refuse the remedy when the wife was applicant The recent English statute of 20 & 21 Vict. c. 85, retains substantially the old law of divorces from bed and board, calling them now judicial separations, for adultery ; but, as a substitute for the parliamentary practice, provides, § 27, as follows: “It shall be lawful for any husband to present a peti- tion to the said court, praying that his marriage may be dis- solved, on the ground that his wife has since the celebration ‘thereof been guilty of adultery; and it shall be lawful for any wife to present a petition to the said court, praying that her marriage may be dissolved, on the ground that since the celebration thereof her husband has been guilty of incestuous adultery, or of bigamy with adultery, or of rape, or of sodomy or bestiality, or of adultery coupled with such eruelty as without adultery would have entitled her to a divorce a mensé et thoro, or of adultery coupled with desertion without reasonable excuse for two years or upwards; and every petition shall state, &c.; provided, that for the purposes of this 1 Mosser v. Mosser, 29 Ala. 313. 2 See Matchin v. Matchin, 6 Barr, 332; 2 Kent Com. 106; Shelford Mar. & Div. 395. * Shelford, supra. * Macqueen Parl. Pract. 482. § Macqueen Parl. Pract. 474-486 ; Hosack Confl. Laws, 255 and note. ® Ante, § 292. 33° [ 389 ] § 418 SPECIFIC GROUNDS OF DIVORCE. [Book v. act incestuous adultery shall be taken to mean adultery com- mitted by a husband with a woman with whom, if his wife were dead, he could not lawfully contract marriage by reason of her being within the prohibited degrees of consanguinity or affinity; and bigamy shall be taken to mean marriage of any person, being married, to any other person during the life of the former husband or wife, whether the second marriage shall have taken place within the dominions of Her Majesty or elsewhere.’ But whether the husband’s adultery is a graver or less grave offence against the marriage than the wife’s, surely the adultery of either ought to afford the other ground of divorce. § 417. It is said, that anciently in England divorce for adultery was from the bond of matrimony, —a proposition the truth of which was not admitted universally at the time Godolphin wrote,! though it seems to be so now. But after- ward the law was changed; and, for a long series of years, until the year 1858, all judicial divorces, for causes arising subsequently to the marriage, were from bed and board.? § 418. For adultery to be the foundation of divorce, it must be voluntary. When therefore the party is compelled by force or ravishment; or the wife has carnal knowledge of a man not her husband, through error or mistake, she believ- ing him to be her husband; or when, it is said by Ayliffe, “ the wife marries another man through a belief that her former husband is dead,” and, during the continuance of this belief, lives in matrimonial intercourse.with him; the offence justi- fying a divorce is not committed.’ If a statute, in the case 1 Godol. Ab. 500, 501. 2 2 Burn Ec. Law, 503; 1 Woodd. Lect. 258; Macqueen Parl. Pract. 470, note ; ante, § 285, note. 3 Ayl. Parer. 226. The doctrine thus stated is also, in all its parts, the well-settled Scotch law ; though Erskine considers it hard to refuse the hus- band his divorce, and compel him to take back his wife, when she has cohab- ited with another man, even under a false rumor, bond side believed, of his [ 390 J CHAP. XXII.] ADULTERY. § 420 last mentioned, renders the second marriage voidable, not merely void, a continuance of the cohabitation under it after the former husband or wife is known to be alive, will not entitle such former husband or wife to a divorce ; such party must first get a decree of nullity of the second marriage; and, if the parties to it then continue their cohabitation, he may have the marriage dissolved for this cause. § 419. On very familiar principles, if the carnal act is suf- fered to pass while the party to it is insane, the criminal offence of adultery is not committed. There is also authority for saying, that neither will the act lay the foundation for a divorce.2 On the other hand, the Pennsylvania court, with great force of reasoning has contended, that, since the danger of a spurious issue is a main cause of allowing the divorce for adultery, and since the husband must be otherwise aggrieved by the incontinence of even an insane wife, if such a wife yields to the adulterous act under circumstances to render its repetition probable, this will be sufficient to dissolve the mar- riage.2 Perhaps the question is not free from difficulty; and, in a case of mere .adulterous insanity, in which the wife, free of mind on other subjects, should still be under an irresistible insane influence on this subject, strong reasons of justice and of public policy might be urged in favor of the divorce. But, be this as it may, in an ordinary case of insanity, the restraining influences which law and common kindness alike demand to be applied to the insane person, would sufficiently protect the husband, and humanity would appeal most right- fully in behalf of the wife. § 420. Plainly a party in a divorce suit cannot rely, in defence of his adulterous act, upon any pretended or real relig- being dead. 1 Fras. Dom. Rel. 81,657. And see ante, § 204; 1 Bishop Crim. Law, § 247. 1 Valleau v. Valleau, 6 Paige, 207; ante, § 56. * Wray v. Wray, 19 Ala. 522; Broadstreet v. Broadstreet, 7 Mass. 474. * Matchin v. Matchin, 6 Barr, 332, 10 Law Reporter, 266. [391] § 422 SPECIFIC GROUNDS OF DIVORCE. [Boor v. ious opinions, favoring adultery or concubinage or polygamy. In a suit between Jews, Lord Stowell said: “It has been suggested, that the Jewish religious regulations allow concu- bines. By the Mosaic law, as at present received, is there any such privilege? If there be any such among the Jews them- selves, it would be a great question how it could be attended to in a Christian court, to which they have resorted; and, if it could be noticed, it ought to have been specially pleaded ; but I think it could not.” II. The Evidence and Procedure. § 421. The difficulty most frequently embarrassing these cases of adultery lies, not in the law, but in the evidence. A single act of adultery being sufficient to establish a cause, the plaintiff need go no further than show this act by his testi- mony. And in an aggravated case, though he will not be limited to proving only one act, yet he will be restrained from going quite uselessly beyond the requirements of the law.? § 422. Adultery is peculiarly a crime of darkness and secrecy; parties are rarely surprised in it; and so it not only may, but ordinarily must, be established by circumstan- tial evidence? The testimony must convince the judicial mind affirmatively, that actual adultery was committed; since nothing short of the carnal act can lay a foundation for divorce But a fundamental principle, never to be lost sight ‘of in these cases, is, that the act need not be proved in time 1 D’Aguilar v. D’ Aguilar, 1 Hag. Ec. 773, 3 Eng. Ec. 329, 336. ? Richardson v. Richardson, 1 Hag. Ee. 6, 3 Eng. Ec. 13. It is so also in cruelty. Lockwood v. Lockwood, 2 Curt. Ec. 281, 7 Eng. Ec. 114. 3 Ayl. Parer. 44, 45; Matchin v. Matchin, 6 Barr, 332; Williams ». Williams, 1 Hag. Con. 299, 4 Eng. Ec. 415; Richardson v. Richardson, 4 Port. 467; Lawson v. The State, 20 Ala. 65; Mosser v. Mosser, 29 Ala. 313. * Hamerton v. Hamerton, 2 Hag. Ec. 8, 4 Eng. Ec. 18, 16, 19. [392 ] CHAP. XXII.] ADULTERY. § 423 and place ; “circumstances,” says Lord Stowell, “need not be so specifically proved as to produce the conclusion, that the fact of adultery was committed at that particular hour, or in that particular room; general cohabitation has been deemed enough.” ! And Dr. Lushington in a late case ob- served: “Jt is not necessary to prove, that the adultery with which a party is charged should have occurred at any par- ticular time and place. The court must be satisfied, that a criminal attachment subsisted between the parties, and that opportunities occurred when the intercourse in which it is satisfied the parties intended to indulge, might with ordinary facility have taken place.” The court has therefore con- sidered the offence established, when unable, from the evi- dence, to “come to a certain conclusion as to the particular period of time” at which it was committed2 Yet Dr. Lush- ington has observed: “It is generally speaking necessary, as I apprehend, to prove that the parties were in some place together where the adultery might probably be committed. Were it, indeed, otherwise, it might happen that guilty inten- tion would be mistaken for actual guilt; and this would be contrary to all principles of justice, as well as to known rules of jurisprudence.” 4 § 423. “Courts of justice,” said Lord Stowell, “must not be duped. They will judge of facts, as other men of discern- ment, exercising a sound and sober judgment on circum- e 1 Loveden v. Loveden, 2 Hag. Con. 1, 4 Eng. Ec. 461, 462; Caton v. Caton, 13 Jur. 431, 432; Bramwell v. Bramwell, 3 Hag. Ec. 618, 5 Eng. Ec. 232, 234; Tucker v. Tucker, 11 Jur. 893, 894; Dailey v. Dailey, Wright, 514; Hamerton v. Hamerton, supra. “It will be sufficient, if the court can infer that conclusion, as it has often done between persons living in the same house, though not seen in the same bed, or in any equivocal situation.” Lord Stowell, in Burgess v. Burgess, 2 Hag. Con. 223, 226, 4 Eng. Ec. 527, 529. And see The State v. Poteet, 8 Ired. 23. ? Davidson v. Davidson, Deane & Swabey, 132, 135. ® Grant v. Grant, 2 Curt. Ec. 16, 7 Eng. Ec. 3, 16. * Caton v. Caton, supra. [393 ] § 424 SPECIFIC GROUNDS OF DIVORCE. [Book v. stances that are duly proved,” judge of them! “The only general rule,” he observed on another occasion, “ that can be laid down upon the subject, is, that the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion ;2 for it is not to lead a harsh and intemperate judgment, moving upon appearances that are equally capable of two interpretations,? neither is it to be a matter of artificial reasoning, judging upon such things differently from what would strike the careful and cautious consideration of a discreet man. The facts are not of a technical nature; they are facts determinable upon common grounds of reason; and courts of justice would wander very much from their proper office of giving protection to the rights of mankind, if they let themselves loose to subtilties, and remote and artificial reasonings upon such subjects. Upon such subjects, the rational and legal interpretation must be the same.’ # § 424. But this learned judge in another case said: “JI take 1 Chambers v. Chambers, 1 Hag. Con. 439, 4 Eng. Ec. 445, 448. 2 8. p., see Mulock v. Mulock, 1 Edw. Ch. 14; Richardson v. Richardson, 4 Port. 467, 475; Day v. Day, 3 Green Ch. 444; Ferguson v. Ferguson, 3 Sandf. 307. Sir George Hay observed, “ Ocular proof is seldom expected ; but the proof should be strict, satisfactory, and conclusive.” Rix v. Rix, 3 Hag. Ec. 74, 5 Eng. Ec. 21. “It is physically possible,” observes Lord Stowell, “that persons may be in the same bed together without criminal intercourse. Courts of justice, however, cannot proceed on such ground ; finding persons in such a situation as presumes guilt gencrally, they must presume it in all cases attended with these circumstances.” Cadogan v. Cadogan, 2 Hag. Con. 6, note, 4 Eng. Ec. 462; Van Epps v. Van Epps, 6 Barb. 820; Burchet v. Burchet, Wright, 161; Bryant v. Bryant, Wright, 156. Butsee The State v. Way, 6 Vt. 311. 3 When the facts relied upon are equally capable of two interpretations, one of which-is consistent with the defendant’s innocence, they will not be sufficient to establish guilt. Ferguson v. Ferguson, 3 Sandf. 307. And see Kirby v. The State, 3 Humph. 289. * Loveden v. Loveden, 2 Hag. Con. 1, 4 Eng. Ec. 461,462. This may be considered the leading case upon the principles of evidence relating to this topic. [394 ] CHAP. XXII] ADULTERY. § 425 the rule to be, that there must be such proximate circum- stances proved, as, by former decisions, or on their own nature and tendency, satisfy the legal conviction of the court that the criminal act has been committed. The court will look with great satisfaction to the authority of established precedents ; ~but, where these fail, it must-find its way as well as it can, by its own’ reasoning on the particular circumstances of the case.”!_ And the proof must be by legal evidence, applicable to a legal charge.2 Nor will the adultery be taken as proved merely because a witness testifies to it; for the court must be satisfied the witness is honest, not mistaken, his testimony true. When the testimony is credited, the facts it establishes will be viewed, not only separately, but_in conjunction; for they interpret each other; and in combination they may lead to the inference of guilt, when separately they would not. § 425. “Nor,” observes Shaw, C. J., “can this course of inquiry and process of reasoning and judging be. much aided by technical and artificial rules, or by what are considered established presumptions of fact from other facts. These rules are useful and convenient in their way, in suggesting general considerations, which are applicable to many cases; but, after all, they are to be taken with so many exceptions and so much allowance, that in the result each case must de- pend mainly upon its own peculiar circumstances. It is im- possible, therefore, to lay down beforehand, in the form of a rule, what circumstances shall, and what shall not, constitute satisfactory proof of the fact of adultery; because the same facts may constitute such proof or not, as they are modified and influenced by different circumstances. Suppose, for in- 1 Williams v. Williams, 1 Hag. Con. 299, 4 Eng. Ec. 415. * Caton v. Caton, 13 Jur. 431, 433; Simmons v. Simmons, 11 Jur. 830, 5 Notes Cas. 388; ante, § 328. There must be both allegation and proof. Foy v. Foy, 13 Ired. 90, 95. ® Bray v. Bray, 2 Halst. Ch. 506, 628. And see post, § 428. * Burgess v. Burgess, 4 Hag. Con. 223, 228, 4 Eng. Ec. 527, 530; Grant v. Grant, 2 Curt. Ee. 16, 7 Eng. Ec. 3, 16. [ 395] § 426 SPECIFIC GROUNDS OF DIVORCE. [BooK Vv. stance, a married woman had been shown, by undoubted proof, to have been in an equivocal situation with a man not her husband, leading to a suspicion of the fact. If it were proved, that she had previously shown an unwarrantable pre- dilection for that man; if they had been detected in clandes- tine correspondence, had sought+stolen interviews, made pas- sionate declarations; if her affection for her husband ‘had been alienated; if it were shown that the mind and heart were al- ready depraved, and nothing remained wanting but an oppor- tunity to consummate the guilty purpose,—then proof that such opportunity had occurred, would lead to the satisfactory conclusion that the act had been committed. But when these circumstances are wanting ; when there has been no previous unwarrantable or indecent intimacy between such parties; no clandestine correspondence, or stolen and secret interviews; the fact of opportunity and equivocal appearances would hardly raise a passing cloud of suspicion over the fair fame of such a woman. But though it is easy to pronounce, with confidence, between cases thus distinctly and broadly marked by the circumstances, yet rules of evidence drawn from them afford little aid in complicated cases, where minute shades of difference may vary the aspect of the proofs; and more es- pecially where there is a direct conflict of testimony; where some of the testimony must be false; and where constant caution is necessary in weighing the credit due to witnesses, to prevent being misled by some or other of these false lights.” 1 § 426. It has therefore been deemed particularly important to show circumstances leading to the adultery, rendering the com- mission of it probable ; and the absence of such circumstances in evidence has been considered a strong indication against the party pursuing. “It is true,” observes Dr. Lushington, “that in almost all cases adultery is clandestine ; but it is equally true, in the great majority of cages, where the parties are co- ? Dunham v. Dunham, 6 Law Reporter, 139, 141. [ 396 ] CHAP. XXII.] ADULTERY. § 427 habiting together, that, after the discovery of the fact of adul- tery, evidence is produced to show that it is probable... ... This is a species of evidence the court always looks for; in~ deed requires, wherever the circumstances allow of its pro- duction, as was frequently observed by Lord Stowell.” In another case, where the charge was against the wife, the same eminent judge observed: “I have certainly felt pressed by the absence of all proof of indecent familiarity, of all proximate acts which might reasonably have been expected during this long intimacy. I have felt, too, that such a connection could hardly subsist without connivance, which I am not justified in suspecting. On the other hand, there is a long-continued intimacy, scarcely to be explained as consistent with inno- cence. The going into her bedroom, the nursing her child in his presence, his attention to the child, and the quarrel with her husband on his account, and no attempt at defence, and a child born during this intimacy, — looking at all these facts, I think Iam judicially warranted in pronouncing the adultery proved with M. St. Rose; although I do not attempt to con-' ceal, that I have arrived a this result with some difficulty.” 2 § 427. Every act of adultery implies three things; first, the opportunity ; secondly, the disposition in the mind of ‘the adulterer; thirdly, the same in the mind of the particeps criminis. And the proposition is substantially true, that, wherever these three are found to concur, the criminal fact is committed. This proposition, however, should in reason be * Dillon v. Dillon, 3 Curt. Ec. 86, 7 Eng. Ke. 377, 383; Croft v. Croft, 3 Hag. Ec. 310, 5 Eng. Ec. 120. 2 Caton v. Caton, 18 Jur. 431, 434, 3 (Davidson v. Davidson, Deane & Swabey, 132;) Westmeath v: West- meath, 2 Hag. Ee. Supp. 1, 4 Eng. Ec. 238; Harris v. Harris, 2 Hag. Ee. 376, 4 Eng. Ec. 160; Bramwell v. Bramwell, 3 Hag. Ec. 618, 5 Eng. Ec. 232. In the last cited of these cases, which was a divorce suit against the husband, Dr. Lushington observed: “ It is then in evidence, that not merely was there a criminal attachment, but also that this attachment was not re- jected; that Jeffrey [the alleged particeps criminis] admitted his familiarity, received his corrempendence, that opportunities were constant; and there is [397] ” § 428 SPECIFIC GROUNDS OF DIVORCE. [Book Vv. qualified thus: if these three things do concur, still the par- ties may not know the state of each other’s minds on the sub- ject, or they may be restrained by fear, or they may be under some temporary incapacity or temporary absence of desire. And plainly wherever they do not concur, the offence is not committed. The proof of their concurrence may lie in de- tached testimony, no one witness being able to establish more than a single one or two of the links in the chain, or it may come in any other form. +} 428. While circumstantial evidence usually proceeds on one or another of the before-mentioned propositions, it may proceed on quite different ones; as where adultery is proved against’ the wife, by showing the husband’s nonaccess, and the birth of a childt And the proposition by which we test the sufficiency of circumstantial evidence is, that, if the facts proved cannot be reasonably reconciled on the assumption of inno- cence, but are harmonious with the assumption of guilt, the court will infer guilt. On the other hand, if the facts can be reasonably reconciled on the assumption of innocence, or cannot be so on the assumption of guilt, the court will not infer guilt.2 Circumstances. merely suspicious are insuffi- nothing to show on her [Jeffrey’s] part, resistance, nor repudiation, nor that she at all discountenanced his passion. To doubt, from such circumstances, that the consummation followed, would be to presume, that the effect was not consequent on the natural cause; and that this was a case of extraor- dinary exception and singular innocence.” See also Soilleux v. Soilleux, 1 Hag. Con. 373, 4 Eng. Ec. 434, where Lord Stowell observed: “ When the criminal disposition of the man has been most satisfactorily ‘proved, and when it is also proved that the conduct of this female was so different on former occasions when she had withstood his attacks, — if, after such a sit- uation as is described in the evidence, she ceases to complain, her silence and submission furnish the strongest presumption, that his attempt here had been more successful.” 2 Caton v. Caton, 13 Jur. 431; Richardson v. Richardson, 1 Hag. Ec. 6, 11, 3 Eng. Ec. 13, 15; Commonwealth v. Shepherd, 6 Binn. 283. ? Harris v. Harris, 2 Hag. Ec. 376,4 Eng. Ec. 160; Dailey v. Dailey,’ Wright, 514; Langstaff v. Langstaff, Wright, 148; Ferguson v. Ferguson, 3 .Sandf. 807. [ 398 ] CHAP. XXII.] ADULTERY. § 429 cient,! though there are degrees of imprudence from which the offence will be presumed.? § 429. The stronger the affection, and the more perfect the concord, between married persons, the less likely is it that adultery will be committed. Therefore the terms on which the parties cohabited have been considered a material circumstance in this issue? Thus, the withdrawal of the attachment of the defendant wife from her husband and family ;4 her expressions of strong dislike toward him and his family ;5 alienation of.feeling by the defendant husband from his wife;® his desertion of her;7’ are severally admis- sible, though not alone sufficient, in proof of the adultery. On other grounds, amicable intercourse between the husband and wife during the pendency of the suit, and while they are 1 Cooper v. Cooper, 10 La. 249; Grant v. Grant, 2 Curt. Ec. 16, 55, 7 Eng. Ec. 3, 15; Fraser v. Fraser, 5 Notes Cas. 20. In Johnston v. Johnston, Wright, 454, a witness testified: “I have seen him [the defendant] at the house of Susanna Lines, late and early, to the neglect of his own woman; I have seen him hugging and nursing her in company, and I verily believe I might have seen more if I had wished.” The court observed, that adultery might be suspected, but it was not proved. See Wood v. Wood, 2 Paige, 108, 112, for the statement of a strong case, where there was a verdict, ap- parently well founded, finding the adultery proved against a defendant who was afterward shown to be innocent. In a recent ‘English case also, the evidence against the wife was quite strong, resting however on circum- stances; but she proved to the satisfaction of the court, by the testimony of surgeons who examined her person, that she was virgo intacta, having never been known by man. This case is remarkable, because she had already lived with her husband eight years. There was evidence of the husband’s admission, that he had not himself consummated the marriage. (Hunt v. Hunt, Deane & Swabey, 121). ? Chambers v. Chambers, 1 Hag. Con. 439, 4 Eng. Ee. 445, 448. 3 Dillon »v. Dillon, 3 Curt. Ec. 86, 7 Eng. Ec. 377; Richardson v. Richard- son, 4 Port. 467, 474. , * Caton v. Caton, 13 Jur. 431, 432. 5 Croft v. Croft, 3 Hag. Ee. 310, 5 Eng. Ec. 120, 122. 6 Richardson v. Richardson, 4 Port. 674; Saunders v. Saunders, 10 Jur. 143, 144. 7 Caton v. Caton, supra; Kenrick v. Kenrick, 4 Hag. Ec. 114, 138. [ 399 ] § 480 SPECIFIC GROUNDS OF DIVORCE. [Book Vv. not in actual cohabitation, may be shown in defence; for this is sometimes thought to be inconsistent with the belief, in the mind of the plaintiff, that the adultery he alleges has really been committed! So if the husband prosecuting a suit had, before the alleged adultery, manifested a wish to get rid of his wife, this will be deemed a circumstance to be weighed against him? § 480. In the practice -of the Ecclesiastical Court, it was customary for the husband, proceeding on the allegation of his wife’s adultery, where the parties had lived some time apart, to plead, in his libel, that he made her a competent allowance. And she was permitted, in her responsive allegation, to con- tradict the averment, and state what provision he did make. We have already seen, that it could not affect the legal rights of the parties, whether he made her a competent allowance, or deserted her, or not. Dr. Lushington has observed: “I cannot conceive that the issue of this case can be determined by this question; still I think the wife may be permitted to show, that she had no competent maintenance; and perhaps, in this case, it may be of importance to explain how, and why, and where she lived.”* The suggestion should be made, » Dillon v. Dillon, 3 Curt. Ec. 86, 7 Eng. Ec. 377, 381. In actions for criminal conversation, it is sometimes important for the plaintiff to show, that his wife was on terms of affection with him, before the defendant seduced her; aud, for this purpose, her letters, written either to the husband or to third persons, anterior to the attempted seduction, are admissible. Tre- lawney v. Coleman, 1 B. & Ald.'90, 2 Stark. 191; Willis v. Bernard, 8 Bing. 376, 1 Moore & S. 584, 5 Car. & P. 8342; Elsam v. Faucett, 2 Esp. 562; Edwards v. Crock, 4 Esp. 39; Houliston v. Smith, 2 Car. & P. 22, 24, 8 Bing. 127, 10 Moore, 482; Wilton v. Webster, 7 Car. & P. 198. Soa witness who is acquainted with the wife may give his opinion, formed in consequence of such acquaintance, as to her affection for her husband. Trelawney v. Coleman, 2 Stark. supra. As illustrating which point, see Campbell v. The State, 23 Ala. 44. See also (Leary v. Leary, 18 Ga. 696.) * Bray v. Bray, 2 Halst. Ch. 506, 628. 5 Ante, § 397. * Grant v. Grant, 10 Jur. 108 [ 400 J CHAP. XXII. | ADULTERY. § 432 however, for the guidance of American practitioners not familiar with the ecclesiastical practice, that this form of alle- gation has reference rather to the evidence, than to the rights sought to be established ; and so it is not to be followed with us.. At the same time it shows us, that evidence on this point seems to be admissible under the proper circumstances. § 431. So evidence of cruelty, as showing the terms of the matrimonial cohabitation, has, always been received to strengthen the other proofs of adultery; though cruelty is itself a separate ground of divorce. “Jt adds,” observes Lord Stowell, “greatly. to the probability that such a charge is well founded, if it appears that” the defendant husband’s “ affections were visibly estranged from his wife, and therefore more likely to be diverted to other less worthy objects.” ? § 482. There is a New York case, which came before Vice-Chancellor McCoun, on the wife’s bill, charging the husband with adultery; wherein, after a feigned issue as to this fact had been tried at common law and returned to the Vice-Chancellor’s Court, a motion was made to set aside the verdict, on the ground, in part, of the common law judge having admitted improper testimony to the jury. The fact was, that the common law judge had permitted the plaintiff wife to prove acts of cruelty, for the purpose of showing, Ist, the husband’s affections alienated; 2d, a course of abuse, from the time of his connection with the other woman, down to and terminating in the separation from the wife ; 3d, such cruelty having resulted from his connection with the other woman, as part of a plan to drive the wife from his house, and render the improper intimacy more easy to be carried on. The Vice-Chancellor overruled the motion; and said, that he 1 Cocksedge v. Cocksedge, 1 Robertson, 90, 94, 95; Beach v. Beach, 11 Paige, 161; Smith v. Smith, 2 Phillim. 67,1 Eng. Ec. 190; Eldred v. Eldred, 2 Curt. Ec. 376, 7 Eng. Ec. 144. And see ante, § 376-378, 391, note. 2 Forster v. Forster, 1 Hag. Con. 144,4 Eng. Ec. 358, 360. s. p. Arkley v. Arkley, 3 Phillim. 500, 1 Eng. Ec. 461. 34* [401] § 433 SPECIFIC GROUNDS OF DIVORCE. [BooK v. was of opinion the judge “was substantially right in the decision.” But his observations showed a tendency of mind toward. confining this class of evidence within narrower limits than the reasons we have just considered, and the Eng- lish decisions, would seem to indicate. He said: “ The acts of cruelty to be shown in evidence would have to be imme- diately, and not remotely, connected with the circumstances of adultery, so as to form one series of aggression on the-part of the husband. As for instance suppose, that, after a husband’s intimacy with a paramour, and while he was pursuing a course of conduct totally inconsistent with his duty and fidelity as a husband (with evidence of some particular act, which might well be construed into a consummation of the offence, or, at least, afford a strong presumption against him), he should become abusive towards his wife, and follow it up by blows, or other personal injury, so as finally to drive her from his house, and should then receive the other ‘into it ;— I think this would be evidence proper to go to the jury, as showing, in the first place, the alienation of the husband’s affections, and, in the second place, the quo animo, or inten- tion with which the cruelty was inflicted: —a just ground of inference would in such case be afforded, that his intimacy with the other woman was of an illicit and adulterous char- acter, although it might not of itself, and disconnected from other circumstances, amount to evidence of adultery.” 1 | § 433. So also, as showing an adulterous intent, it is com- ? Mulock v. Mulock, 1 Edw. Ch. 14. In New York, cruelty is ground of divorce from bed and board only — adultery, from the bond of matrimony —and the two cannot there be united in one bill. In England, each is a ground of divorce from bed and board, and they may be joined. ‘Vice- Chanceller McCoun intimated in this case, that a distinction would thence arise as to the extent to which cruelty might be evidence of adultery. But this suggestion appears to be fully met, first, by the reason of the Eng- lish rule; secondly, by the fact, that in England cruelty may always and without limit be introduced into a recriminatory allegation of adultery, in a suit for adultery, though adultery is the only legal bar. See ante, § 391, note. [ 402 ] CHAP. XXII. ] ADULTERY. § 434 petent to give in evidence, not only the defendant’s improper familiarities with the alleged parliceps criminis, at times anterior to the fact charged,! but also his unsuccessful solici- tations of the chastity of other women? And in the ecclesi- astical practice, the plaintiff husband has been permitted to plead, that the conduct of his wife, during his absence, was so indecorous as to induce a lady with whom she resided to recommend her removal to her mother? This however is no example for us, in point of practice, only it shows that libid- inous conduct in the wife is admissible in evidence against her. In a case wherein the evidence did not amount to judicial proof of the wife’s adultery, but her conduct gad been so culpable as to raise strong suspicions of criminality, and induce the court to rescind the conclusion to admit further evidence; proof that, during the progress of the suit, the alleged particeps criminis had frequently visited her alone, and remained late at night, was received as sufficiently strengthening the former proof to justify the sentence of divorce.* § 434. If a married man associates with prostitutes> or visits .a brothel, without any apparent motive, and especially if when there he shuts himself up in a room with a common prostitute, — it must be inferred, in the absence of proof to the contrary, that he does this with the intent of committing 1 The State v. Wallace, 9 N. H. 515; Burgess v. Burgess, 2 Hag. Con. 223, 4 Eng. Ec. 527; Commonwealth v. Merriam, 14 Pick. 518; Norfolk v. Germaine, 12 Howell St. Tr. 929, 945. ? Forster v. Forster, 1 Hag. Con. 144, 4 Eng. Ec. 358, 362; Soilleux v. Soilleux, 1 Hag. Con. 373, 4 Eng. Ec. 434. And see Bray v. Bray, 2 Halst. Ch. 628. But see Washburn v. Washburn, 5 N. H. 195. ® Croft v. Croft, 3 Hag. Ec. 310, 5 Eng. Ec. 120, 128. * Hamerton v. Hamerton, 3 Hag. Ke. 1,5 Eng. Ee. 11. Facts tending to show adultery subsequent to the adulterous acts in issue would seem to be admissible or not, according as a connection is established or not, between the earlier and later transactions. Lawson v. The State, 20 Ala. 65; The State v. Crowley, 13 Ala. 172. See also 1 Greenl. Ev. § 47. 5 Ciocci-v. Ciocci, 26 Eng. L. & Hq. 604. [ 403 ] § 485 SPECIFIC GROUNDS OF DIVORCE. [BOOK v. adultery ; and, as the opportunity and the undoubted consent of another party concur with his own intent, the offence must be presumed to be committed? Lord Stowell has observed: “ The act of going to a house of ill-fame is charac- terized by our old saying, that people do not go there to say their paternoster; that it is impossible they can have gone there for any but improper purposes; and that, it is universally held a proof of adultery.”® So if a married woman is seen going into a house of ill-fame with a man not her husband,* or unattended, that is alone sufficient evidence of her adul- tery. And this species of proof has been considered to be more string@nt when produced against the woman than the man.6 Obviously, however, such a visit is open to explana- tion; as it may be one of philanthropy,’ or of accident, or even of lawful business, which should not be construed into an act of guilt. § 485. The visit of a wife to the lodgings or house of a single man may be a suspicious circumstance, and, connected with other circumstances, sufficient; but it will not alone establish guilt. Thus, where the windows were shut and there were letters which could not be otherwise explained, 1 Ante, § 427. ® Astley v. Astley, 1 Hag. Ec. 714, 3 Eng. Ec. 303; Kenrick v. Kenrick, 4 Hag. Ee. 114, 124, 182; Van Epps v. Van Epps, 6 Barb. 320; Langstaff v. Langstaff, Wright, 148; Richardson v. Richardson, 4 Port. 467, 474. But see Betts v. Betts, 1 Johns. Ch. 197. -* Loveden v. Loveden, 2 Hag. Con. 1, 24, 4 Eng. Ec. 461, 472. * Best v. Best, 1 Add. Ec. 411, 3 Ing. Ec. 158,170; Wood v. Wood, and other authorities cited, 4 Hag. Ec. 1388; Matchin v. Matchin, 6 Barr, 332, 338. ° Eliot v. Eliot, cited in Williams v. Williams, 1 Hag. Con. 299, 4 Eng. Ee. 415, 417; Ayl. Parer. 45. ® Astley v. Astley, supra. ” For an interesting case, in which the defence of philanthropy was set up and failed, see Ciocci v. Ciocci, 26 Eng. L. & Eq. 604. * Williams v. Williams, 1 Hag. Con. 299, 4 Eng. Ec. 415, 417. [ 404 ] CHAP. XXII. ] ADULTERY. § 437 such a visit was held to complete the proof But in a recent case of this complexion, already referred to,? the wife extri- cated herself from the pressure of presumption against her, by showing herself to be a virgin, never known by man? § 436. Proof that a fact of marriage was celebrated between the defendant and the alleged particeps criminis does not itself go quite far enough; for it is still necessary to show a dwell- ing together, or an actual criminal intercourse. But the fur- ther proof of an ostensible living together as husband and wife will suffice in such a case. Where there was no cele- bration of marriage shown, the court refused to infer adultery from the mere unaided fact of the defendant and a woman living in the same house together, under the reputation of being married, while they were not. But if he gave cur- rency himself to the repute, the evidence plainly would be stringent; and, in a case where there was no suspicion of collusion, it should, on principle, be deemed satisfactory.’ § 437. Facts in themselves inconclusive may be made con- clusive by proof of falsehood or concealment on the part of the offender. Thus, where the wife conceals from her hus- band meetings with the alleged paramour,$ or conceals her having correspondence with him,’ or the fact of his lodging at 1 Ricketts v. Taylor, cited in Williams v. Williams, supra. 2 Ante, § 428, note. j 3 (Hunt v. Hunt, Deane & Swabey, 121). * Reemie v. Reemie, 4 Mass. 586 ; Wilson v. Wilson, Wright, 128; post, § 445. And see Ellis v. Ellis, 11 Mass. 92; Cayford’s case, 7 Greenl. 57. 5 Nash v. Nash, 1 Hag. Con. 140, 4 Eng. Ec. 357; Masten v. Masten, 15 N. H. 159, 161. a: 6 Hart v. Hart, 2 Edw. Ch. 207. ™ Post, § 437. § Bramwell v. Bramwell, 3 Hag. Ec. 618, 5 Eng, Ec. 232; Elwes v. Elwes, 1 Hag. Con. 269, 4 Eng. Ee. 401, 402. ® Loveden v. Loveden, 2 Hag. Con. 1, 4 Eng. Ec. 461, 469, 470; Lock- wood v. Lockwood, 2 Curt. Ec. 281, 7 Eng. Ec. 114, 124; Morse o. Morse, 2 Hag. Ec. 608, 4 Eng. Ec. 220. ‘ [ 405 ] § 439 SPECIFIC GROUNDS OF DIVORCE. [Book v. the house in the husband’s absence;! where the husband pre- tends, that a young woman with whom he is intimate is his niece, while she is not so;? or, a fortiori, where a woman calls herself by a false name, and. occupies the same room with a man not her husband, only one bed being in the room, for eight or nine months,’ — adultery may, under the requisite attendant ‘circumstances, be presumed. But a man will not ordinarily be supposed to have committed this offence, if his wife and child were on the same bed with him and the alleged particeps criminis.* § 438. Proof that the accused husband gave the woman presents of money, and articles of dress and ornament, may, in the absence of explanation, furnish strong suspicion, and, in connection with other evidence, establish the offence.5 Says an old Scotch writer: “ The ordinary presumptions are, the being oft alone together, gifts, love-letters, close doors, the wife’s being abroad all night, nudus cum nudd, et solus cum sold, the entertaining persons that are known to be pimps.” ® § 439. In considering presumptions of this nature, we should regard the peculiar modes of life of the parties, and the habits of the community wherein they dwell.” “ Equal presumptions,” says Poynter, “do not always follow similar facts; for the weight of presumption varies with circum- stances, and with none more than with the rank and condi- tion, the situations and habits, of the parties. For it must be kept in mind, that, in different ranks of life, and in different 1 Grant v. Grant, 2 Curt. Ec. 16, 7 Eng. Ec, 3. * Kenrick v. Kenrick, 4 Hag. Ec. 114, 129; Harris v. Harris, 2 Hag. Ec. 876, 4 Eng. Ec. 160, 167. 3 Scroggins v. Scroggins, Wright, 212. * Scott v. Scott, Wright, 469; Smith v. Smith, Wright, 644. 5 Cocksedge v. Cocksedge, 1 Robertson, 90, 98. ® McKen. Crim. Law, 177. 1 Harris v. Harris, 2 Hag. Ec. 376, 4 Eng. Ec.160, 169; Loveden v. Love- den, 2 Hag. Con. 1, 4 Eng. Ec. 461; Lawson v. The State, 20 Ala. 65. [ 406 ] CHAP. XXII. ] ADULTERY. . § 440 countries, different modes of education, and different notions and manners prevail; for instance, there are many freedoms which, in the unreserved contact of humble life, continually take place without imputation; whilst an equal license in classes of a higher order, and of a more refined education, would naturally lead to a very different conclusion.”* So where the parties are near of kin,? or sustain the relation of physician and patient, a carnal intercourse will be less readi- ly inferred ;. and, according to the old canonists, if a clergy- man is found embracing a woman in some secret place, this does not, as in the case of other people, prove adultery, for “he is not presumed to do it on the account of adultery, but rather on the score of giving his benediction, or exhorting her to penance,” *—a good illustration of the principle, though few judges in modern times would yield so much to clerical virtue as this application implies. But too great latitude should not be given to considerations of this nature, to the exclusion of the more obvious import of the evidence.® § 440. Sufficient primé facie proof of a husband’s adultery has been deduced from the fact, that, long after marriage, he was infected with venereal disease.6 When the disease develops itself soon after marriage, this conclusion does’ not follow; because antenuptial misconduct may have produced it.’ But even in the former case, if we look to reason rather than authority, we shall find it necessary for some evidence to appear that he was not infected by his wife; for, in so inti- 1 Poynter Mar. & Div. 187. * Kenrick v. Kenrick, 4 Hag. Ec. 114,129. And see Griffiths ». Reed, 1 Hag. Ec. 195, 3 Eng. Ec. 79. ® Dunham v. Dunham, 6 Law Reporter, 139. . * Ayl. Parer. 51. In the Scotch case of King v. King, 4 Seotah Sess. Cas. N. 8. 567, this canonical defence was pertinent to the facts, but was not relied on. 5 Grant v. Grant, 2 Curt. Ec. 16, 7 Eng. Ec. 3, 14. ~ 6 Johnson v. Johnson, 14 Wend. 637, per Savage, C. J.; Popkin ». Bae kin, 1 Hag. Ec. 765, note, 3 Eng. Ec. 325, 326. * Popkin v. Popkin, supra. [407] § 440 a SPECIFIC. GROUNDS OF DIVORCE. [BooK v. mate a relation, where the disease of the one party must al- most of course extend to the other, how can the court, in the absence of proof, charge the guilt specifically upon either? ? And, looking again to authority, in Collett v. Collett, there was an attempt to establish adultery against the husband, by showing the wife to be suffering under a recent infection. Dr. Lushington considered this fact not alone sufficient; since she might have contracted the disease from another. “ It is impossible,” he adds, “to lay down any general inflexible rule; for each case must depend upon its own circumstances, and it is scarcely possible to conceive a case without some circumstances which would assist the court in coming to a : conclusion.” And this learned judge held the attending cir- cumstances, then under his consideration, sufficient? In this conclusion he was sustained, on appeal, by the Dean of the Arches; but overruled, on further appeal, by the Judicial Committee. In the latter court the doctrine was laid down, that the adultery of the husband cannot be inferred from the mere fact of the wife’s being tainted with venereal dis- ease, although she herself is not even suspected of adultery ; that the existence of such disease in the wife is consistent with the adultery of the husband, with her own adultery,,and with accidental communication of it; and that, where there is no proof of the husband’s having been himself diseased at the time specified in the libel, it will not be ascribed, by pref- erence, to the first of these causes, even though it appears, that, at a former time, he had infected his wife? § 440 a. Concerning the evidence which arises from one ’ or the other or both of the parties having the venereal dis- ease, if we reject the idea, certainly somewhat prevalent, that accident may bring the disease where the usual cause does not exist; and if, in a particular case, the disease is found to 1 See ante, § 423, note. * Collett v. Collett, 1 Curt. Ec. 678, 686. ® Collett v. Collett, Jud. Com. of Privy Council, July 14, 1840, Wadd. Dig. 38. See also Stone v. Stone, 3 Notes Cas. 278, 290. [ 408 J CHAP. XXII.] ADULTERY. § 442 have a recent origin, long after the marriage, —then the con- clusion is plain, that one or the other of the parties, or both of them, must have offended. Now, this being conceded, how shall we determine at whose door to lay the guilt? Of- ten this cannot be ascertained; but, in a case of this kind, consulting reason rather than specific authority, evidence should be received of the entire course of life, and the asso- ciations and temptations, of the parties severally, the result of which would be, that sometimes the judge might become quite satisfied in the matter, sometimes not; and the divorce would be granted only in the former circumstances. § 441. Stains upon the husband’s linen, though, it seems, admissible in proof, are not alone sufficient evidence of his adultery; since they do not necessarily establish even his in- fection with venereal disease. There may be discharges from other causes, which, when dry, would so nearly resemble those of syphilitic origin, as to render it impossible to distin- guish the one from the other. § 442. Another presumption, sometimes relied upon in these cases is, that, when an adulterous intercourse is once shown to exist between persons, and they are still living together, or under the same roof, the unlawful connection also is deemed to be continuing? And, as a general proposition, when adul- tery between two persons is proved to have taken place, less evidence will suffice to establish a continuation of it, than would be necessary to establish the first offence? But some of the cases seem to hold, that one of the parties is not per- mitted to prove, in the first instance, antenuptial incontinence in the other, and then call in the aid of this presumption ; 4 1 Ferguson v. Ferguson, 1 Barb. Ch. 604. 2 Smith v. Smith, 4 Paige, 432; Beeby v. Beeby, 1 Hag. Ec. 789, 3 Eng. Ee. 338, 342; Turton v. Turton, 3 Hag. Ec. 388, 5 Eng. Ee. 130, 136. 3 Armstrong v. Armstrong, 32 Missis. 279. * Graves v. Graves, 3 Curt. Ec. 235, 7 Eng. Ec. 425, 427; Best v. Best, 1 Add. Ec. 411, 2 Eng. Ec. 158, 169; Perrin v. Perrin, 1 Add. Ec. 1,2 Eng. Ec. 11; Devall v. Devall, 4 Des. 79. 35 [ 409 } § 443 SPECIFIC GROUNDS OF DIVORCE. [BooK v. either because it would be contrary to good policy to permit such a method of procedure, or because a person entering marriage is understood to abandon unlawful pleasures. Yet in other cases, English, American, and Scotch, the antenuptial and post-nuptial conduct have, under the circumstances of those cases, been very properly connected together ;! and we may consequently find some embarrassment in saying what precise latitude should be given to the doctrine just announced. There appears also to be a doubt, whether, if condonation has passed, the condoned adultery may then be shown as foundation for inferring the subsequent.2 Looking at these questions in the light of principle we conclude, that, when- ever a condonation has passed, or a marriage has taken place, a presumption arises of the party condoned or married having abandoned all former connections. But where there is new and independent evidence pointing to a connection subsequent to the period of condonation or marriage, — not merely a living in the same house, but pertinent evidence di- rectly pointing, — then the former connection may be shown as giving force to the inference of subsequent misconduct. § 443. In England, previous to Stat. 20 & 21 Vict. c. 85, the injured husband used ordinarily to bring his action at com- mon law, against the adulterer, for the criminal conversation, and afterward proceed in the Ecclesiastical Court for a di- vorce; pleading in this court his verdict, if he had obtained one. On common principles the verdict would seem to be quite inadmissible; for the defendant, against whom it is pro- duced, was not a party to the proceeding in which it was zen- 1 Ciocci v. Ciocci, 26 Eng. L. & Eq. 604,627; Lathan v. Proven, 2 Scotch Sess. Cas. new ed. 250; Van Epps v. Van Epps, 6 Barb. 320; Bray v., Bray, 2 Halst. Ch. 628. And see Simmons v. Simmons, 11 Jur. 830, 5 Notes Cas. 388. In Connecticut, on a charge of keeping a house of ill-fame, the prose- cutor was permitted to show, that the defendant’s house was such anterior to the time when the statute, prohibiting the offence, went into operation, as aiding the proof of its character afterward. Caldwell v. The State, 17 Conn. 467. 2 Ante, § 378. [ 410 J CHAP. XXII. ] ADULTERY. § 443 dered. And the Ecclesiastical Court has held, that a verdict in ejectment cannot be given in evidence in a testamentary cause! But though the admission, in divorce suits, of ver- dicts obtained in actions of eriminal conversation, was much resisted, their admissibility became at length fully established. The principal object of this evidence seems to have been to rebut any presumption of collusion,? and to satisfy the court that the husband had honestly endeavored to obtain all the re- dress the law affords ;3 but, though some of the cases might appear to give it a little more weight,‘ they all agree, that it is in no proper sense evidence against the wife, and that its pro- duction does not place the husband on any better footing toward her, or lessen his burden of establishing by other proofs his allegations against her. There are no reported American 1 Grindall v. Grindall, 3 Hag. Ec. 259, 5 Eng. Ec. 101; Price v. Clark, 3 Hag. Ec. 265, 5 Eng. Ec. 103. * Ante, § 348; Price v. Clark, supra; Phillips v. Phillips, 1 Robertson, 144, 156. § Williams v. Williams, 1 Hag. Con. 299, 4 Eng. Ec. 415, 418. * Forster v. Forster, 1 Hag. Con. 144, 4 Eng. Ec. 358, 864; Chambers v. Chambers, 1 Hag. Con. 439, 4 Eng. Ec. 445, 448; Dillon v. Dillon, 8 Curt. Ee. 86, 7 Eng. Ec. 377, 391 ; Halford v. Halford, Poynter Mar. & Div. 200, note. 5 Williams v. Williams, supra; Loveden v. Loveden, 2 Hag. Con. 1, 4 Eng. Ec. 461, 484; Evans v. Evans, 1 Robertson, 165, 170; Best v. Best, 1 Add. Ee. 411, 2 Eng. Ec. 158,170. See also Elwes v. Elwes, 1 Hag. Con. 269, 4 Eng. Ee. 401, 410, note; Williams v. Williams, 3 Barb. Ch. 628. The verdict in a suit to which neither the husband nor wife was a party cannot be admitted. Brisco v. Brisco, cited 1 Hag. Ec. 165, 168, 3 Eng. Ec. 77, 78. Ina late English case, where the husband sued on the ground of his wife’s alleged adultery, Dr. Lushington refused to admit against him, a ver- dict obtained against him by a third person for necessaries furnished the wife ; the defence set up to the action for necessaries having been, that she had committed adultery. ‘There can be no doubt,” he said, “that verdicts against the alleged adulterer have been frequently admitted in pleading here — not however as proof of the adultery, but to show that the husband has not shrunk from exposing his witnesses to a viva voce examination. .... But here is a verdict in an action between different parties, and for a totally dif- ferent purpose. The very fact that the wife was examined shows, that the [411] § 445 SPECIFIC GROUNDS OF DIVORCE. [Book v. cases, in which such a verdict has been tendered to the court. Probably it would not be received, unless possibly under spe- . cial circumstances. § 444. In some of the American States, adultery is punish- able by indictment; and the question arises, whether, in those States, a record of the defendant’s conviction of adultery is admissible in a suit for divorce, to prove the same adultery, and, if admitted, what weight is to be given it. .The general doctrine is, that a judgment in a criminal cause is not, in a civil proceeding, where the party plaintiff is necessarily differ- ent, evidence of the fact upon which the conviction was found- ed. But we have seen, that a divorce suit is really a trian- gular one, the government constituting the third party ;? and so both the parties to the indictment are in fact parties in the divorce suit. Besides, it evidently must aid the conscience of the judge, in discharging his duty of protecting the public against divorces for sham offences, to know that this public has itself indicted and convicted the defendant. And when the defendant in the divorce suit has suffered himself to be defaulted; so that he cannot complain if judgment is ren- dered against him even without evidence? and only the inter- ests of the public remain to be protected ; it would seem, upon principle, that the record of conviction should be received as alone sufficient. § 445. The question of its sufficiency, where the respon- dent appears and defends, may not be so clear; but, as here the plaintiff could not have been a witness in the criminal jury gave their verdict from other facts which were brought before them, since she would not be a witness to prove her own innocence.” Jenkyn v. Jenkyn, Deane & Swabey, 268. 1 1 Greenl. Ev. §537; 1 Stark. Ev. 219. But see Maybee v. Avery, 18 Johns. 352. 2 Ante, § 297, 300. 5 Ante, § 302. [412] CHAP. XXII.] ADULTERY. § 445 proceeding,! why should not the record primé facie establish the fact charged? In Maine it has been held sufficient, as well in a contested as a defaulted case, to prove both the mar- riage and the adultery.2 In Ohio, a record of conviction for polygamy was adjudged insufficient proof of adultery; not because of any objection to this kind of testimony, but be- cause the crime of polygamy is committed by merely entering into the second marriage; while adultery is the carnal act following, though not so necessarily following as to dispense 1 See 1 Greenl. Ev. § 537, note; 2 ib. § 45, note; Gilb. Ev. 32; Maybee v. Avery, 18 Johns. 352; Nelson v. Evans, 1 Dev. 9. 2 Anderson v. Anderson, 4 Greenl. 100; Randall v. Randall, 4 Greenl. 826. On the hearing of a libel for divorce from bed and board on the ground of cruelty, a record of the deféndant’s conviction for assault and battery on the wife was offered in evidence, and objected to. It appearing that the defendant had pleaded guilty to the indictment, the record was admitted. Bradley v. Bradley, 2 Fairf. 367. But as a general proposition, a record of conviction upon a plea of guilty in a criminal cause is admis- sible, in a civil action against the same defendant, being a solemn judicial confession of the fact. 1 Greenl. Ev. § 587, note. In Woodruff v. Wood- ruff, 2 Fairf. 475, which was a libel for divorce on the ground of cruelty, a record of the conviction of the defendant husband for an assault and battery upon the wife was offered ; but, it appearing, that there was a trial in the criminal case, and that the wife was a witness, the record was rejected. In a similar divorce suit in Vermont, where a record of conviction was ten- dered, the court refused to receive it, except as proof of the fact of the con- viction, observing: “ It would not be proof of the assault and battery alleged, for the same reason that such a conviction is not evidence in a civil case, when the same matter comes in question; that is, that it might have been obtained upon the testimony of the person in whose favor it'is offered.” Quinn v. Quinn, 16 Vt. 426. In Connecticut, “in an action of book-debt,” says Judge Swift, “ the plaintiff claimed a right to recover for articles deliv- ered to the wife of the defendant, on the ground, that, by extreme cruelty and personal violence, he had driven her from his house; and he offered, in evidence of that fact, the verdict of the jury convicting him in a public prosecution. But the court held, that such verdict was not admissible evi- dence to prove that fact; and that verdicts in public prosecutions for crimes could never be evidence in civil suits, although the same question of fact should arise.” Swift's Ev. 20. And see Maybee v. Avery, 18 Johns. 352; People v. Buckland, 13 Wend. 592, 595. 35* [413 ] § 446 SPECIFIC GROUNDS OF DIVORCE. [Book v. with proof of it in the divorce suit.1_ The report of this case does not show whether it was contested or not.? § 446. The English authorities appear to sustain the gen- eral doctrine here indicated. Thus in a suit for divorce from bed and board, for unnatural practices committed by the hus- band, the only evidence was the record of his conviction of an assault upon the person named, with intent to commit the offence. The Consistory Court of York, under the apprehen- sion that a mere attempt was not sufficient to authorize the sentence, but, not doubting the sufficiency of the proof, rejected the libel. The High Court of Delegates, on appeal, admitted it, and pronounced for the divorce, which was followed by an act of parliament dissolving the marridge.2 So, on a question of administration upon the effects of a deceased person, a conviction of polygamy is evidence, not conclusive, of the nullity of the second marriage. At the same time, in a suit for nullity of a second marriage, it has been held to be com- petent for the defendant to set up the nullity of the first, in bar of the suit, although he has been convicted of bigamy in respect of such second marriage; the record of the conviction being considered, as it would seem, primd facie evidence, not conclusive, of the nullity. Obviously a judgment of acquittal would not bind the plaintiff; because he, against 1 Ante, § 436. 2 Wilson v. Wilson, Wright, 128. See Reemie v. Reemie, 4 Mass. 586; ‘Patterson v. Gaines, 6 How. U. S. 550. * Bromley v. Bromley, 2 Add. Ec. 158, note, 2 Eng. Ec. 260, Poynter Mar. & Div. 184, note. See also Ellenthorp v. Myers, 2 Add. Ec. 158, note, 2 Eng. Ec. 261; Boyle v. Boyle, Comb. 72, 3 Mod. 164; Moge v. Mogg, 2 Add. Ec. 292, 2 Eng. Ee. 311. * Wilkinson v. Gordon, 2 Add. Ec. 152, 2 Eng. Ec. 257. ® Bruce v. Burke, 2 Add. Ec. 471, 2 Eng. Ec. 381; Rogers Ec. Law, 2d ed. 635. See also People v. Buckland, 13 Wend. 592; Hudson v. Robinson, 4M. & 8.475, 479; Drew v. Clark, 2 Add. Ec. 102, 111, 113, 2 Eng. Ec. 242, 246, 248; iautee: ere 1 Robertson, 40, 48; Bray v. Bray, 1 Hag. Ec. 163, 3 Bie Ec. 76. [414] CHAP. XXII] ADULTERY. § 447 whom it is offered, was not a party to the suit; and because it ascertains no fact, but merely shows the government to have failed in making out its case. Thus, where one had been acquitted on an indictment for having two wives, it was held, that the record was not evidence in a civil cause, where the validity of the second marriage was controverted.! § 447. The custom of the ecclesiastical courts has been to interrogate the witnesses respecting their belief, whether, at the times testified to by them, adultery was in fact committed. The reason assigned is, that the judge, though not bound by the opinion given, has a right to know what the opinion is, and sometimes he places reliance upon it? Yet if a witness stops short, and declines or omits to state his belief of the consummation of the offence, the judge, put on his guard to see whether there is any ground for the witness’s scepti- cism, draws his own conclusions, which, instead of the wit- ness’s, must prevail. This course is a wide departure from ordinary rules of evidence; and there is no reported instance of its having been followed in any of the American tribunals. Perhaps it may be deemed a peculiarity, like that of requiring more than one witness to the principal fact, attaching to the ecclesiastical courts, rather than to the subject-matter, and not to be followed elsewhere ;5 or perhaps it may do when the judge is to decide upon the effect of the testimony, while it would be unsafe to submit such evidence to a jury.® . 1 Gilb. Ev. 34. See further, 1 Phillips Ev. Cow. & Hill Ed. 336 et seq. and notes; Fairchild v. Adams, 4 Law Reporter, n. s. 278, 281; United States v. Gibert, 2 Sumner, 19, 97; Anonymous, 2 Sim. N. 8. 54, 11 Eng. L. & Eq. 281; People v. Buckland, 13 Wend. 592, 596, and cases there cited. 2 Crewe v. Crewe, 3 Hag. Ec. 123, 5 Eng. Ec. 45, 47, 51. 3 Elwes v. Elwes, 1 Hag. Con. 269,4 Eng. Ec. 401, 405. And see Atkin- son v. Atkinson, 2 Add. Ee. 484, 2 Eng. Ee. 387. * Simmons v. Simmons, 5 Notes Cas. 388, 11 Jur. 830; Evans v. Evans, 1 Robertson, 165. 5 See 2 Greenl. Ev. 3d ed. § 42; Atkins v. Atkins, post, § 465, note; Dun- lap v. Dunlap, Wright, 559; Sheffield v. Sheffield, 3 Texas, 79. 6 And see Cameron v. The State, 14 Ala. 546. In the case of Leary v. [415] § 449 SPECIFIC GROUNDS OF DIVORCE. [BOoK v. § 448. It is often important to show, what are called the identity and diversity of the parties to an act of sexual intercourse proved; namely, that one of them was the de- fendant, the other was not the plaintiff! To aid this part of the proofs, the ecclesiastical courts sometimes resort to what is termed a decree of confrontation, applied for on special grounds. On such a decree, it is necessary that the defendant should be produced to a witness who has known her in both characters of wife and adulteress, or to two or more witnesses at the same time who can separately identify her in each character § 449. The rules which govern the reception of the defend- ant’s confessions in evidence, and the weight to be given them, have already been stated.3 Confessions of the particeps crim- inis, neither made in the presence-of the defendant, nor com- municated to him, are inadmissible And it has also been held, that the acknowledgment of the wife’s agent, who, by her direction, took her child to be christened, made to the clergyman at the christening, that it was not the husband’s child, but another person’s, is not receivable; the agent Leary, 18 Ga. 696, some opinions of the witness were received, but not to the full extent indicated in the ecclesiastical practice. 1 Sullivan v. Sullivan, 2 Add. Ec. 299, 2 Eng. Ec. 314; Williams v. Wil- liams, 1 Hag. Con. 299, 4 Eng. Ec. 415, 418; Dillon v. Dillon, 3 Curt. Ec. 86, 100, 7 Eng. Ec. 877; Hamerton v. Hamerton, 2 Hag. Ec. 8, 4 Eng. Ec. 13. 2 Searl v. Price, 2 Hag. Con. 187, 4 Eng. Ec. 524; Curtis v. Curtis, 5 E. F. Moore, 252, 10 Jur. 165. The form of a decree of confrontation may be seen in Coote Ee. Pract. 336. 3 Ante, § 305-313. * Burgess v. Burgess, 2 Hag. Con, 223, 4 Eng. Ec. 527; Harris v. Harris, 2 Hag. Ec. 376, note, 4 Eng. Ec. 160, 172; Croft v. Croft, 3 Hag. Hc. 310, 5 Eng. Ec. 120, 125; Matchin v. Matchin, 6 Barr, 332; Lawson v. The State, 20 Ala. 65. Where the defendant husband’s intent to commit adultery was fully established, and nothing was wanting but the consent of the female on whose chastity he had made attempts, the subsequent conduct of that female was held to be evidence most stringent, of her having yielded to his solicita- tions. Soilleux v. Soilleux, 1 Hag. Con. 373, 4 Eng. Ec. 434. [416 ] CHAP. XXII. ] ADULTERY. § 450 himself must be called! So the particeps criminis may, if willing to testify, be made a witness, whether the adultery is an indictable offence or not. “He is not thereby disquali- fied ; and, although in practice it is a rare circumstance to find the paramour of the wife brought forward as a witness, it is not uncommon for the female accomplice to be produced, when the wife is complainant against her husband’s adultery. The evidence of a paramour, however, must be corrobo- rated ;” itis always to be listened to with caution? In Mas- sachusetts, when an alleged particeps criminis was produced to prove the offence, the court said they would not refuse to swear him; but, if his testimony showed himself to be the paramour, they should recommend to the solicitor-general to lay the case before the grand-jury. If the counsel should omit to ask the witness with whom the adultery was com- mitted, the court would put the inquiry. In New York, the court refused to grant a divorce on the unsupported concur- rent testimony of two prostitutes.® § 450. In those States in-which adultery is not indictable, the husband or wife of the particeps criminis may be a wit- ness to establish the offence. But Vice-Chancellor McCoun who ruled this point added, that, where adultery is pun- * Faussett v. Faussett, 13 Jur. 688. ? Best v. Best, in the Arches Court, 1823, Poynter Mar. & Div. 198, note; s. c. in Consist. Court, 1 Add. Ec. 411, 2 Eng. Ec. 158, 170; Simmons v. Simmons, 11 Jur. 830, 5 Notes Cas. 324, 1 Robertson, 566; Emmons v. Emmons, Walk. Mich. 582; Van Cort v. Vay Cort, 4 Edw. Ch. 621; Lewis v. Lewis, 9 Ind. 105; Don v. Don, 10 Scotch Sess. Cas. nN. s. 1046. 3 Astley v. Astley, 1 Hag. Ec. 714, 3 Eng. Ec. 303, 304, 306; Moulton v. Moulton, 13 Maine, 110; Van Epps v. Van Epps, 6 Barb. 320; Wood v. Wood, 2 Paige, 108,112; The State v. Crowley, 13 Ala. 172; Ciocci v. Cioc- ci, 26 Eng. L. & Eq. 604. “Lucy Peacock [the person with whom the adultery was alleged to have been committed] herself must be considered as an accomplice ; and all the legal considerations applicable to such a wit- ness must apply to her.” Simmons »v. Simmons, 1 Robertson, 566, 571. * Brown v. Brown, 5 Mass. 320. And see ante, § 402, note. 5 Turney v. Turney, 4 Edw. Ch. 566. See also the Scotch case of Sim v. Miles, 12 Scotch Sess. Cas. 633. [417] § 451 SPECIFIC GROUNDS OF DIVORCE. [Boox Vv. ishable as a crime, the consequence is otherwise.!_ And this latter proposition plainly follows from the established doc- trine, that one of the married parties cannot be heard in court accusing the other of crime.? Perhaps the rule should also ‘be, that an infamous breach of matrimonial duty and social decorum and decency, must not thus be revealed by a wife or husband against the offending one. § 451. The majority of the Connecticut court held, that the respondent in a suit for divorce on the ground of adultery could not introduce proof of her good character, to rebut the presumptive evidence of guilt which the plaintiff had pro- duced. The reason assigned was, that the divorce suit is a civil one, and that the right of showing a good character, where character is not the question directly in issue, is con- fined to criminal prosecutions? But probably this doctrine is not to be elsewhere followed. The principle which best com- mends itself to reason and modern authority is, that the rules of evidence are the same in civil and criminal causes, when the issue, which is the test, is the same. And elsewhere it is held, for example, in an action of slander, wherein the defend- ant pleads the truth in justification, that the plaintiff, in reply to the defendant’s testimony, may introduce evidence of his good character, in analogy to the rule prevailing in criminal proceedings.® And the doctrine, as applicable alike to crim- inal and civil suits, has been well expressed by Chancellor Walworth to be, “that, if a party is charged with a crime, or any other act involving moral turpitude, which is endeavored to be fastened upon him by circumstantial evidence, or by 1 Van Cort v. Van Cort, 4 Edw. Ch. 621, 624. 2 The State v. Welch, 26 Maine, 30. § Humphrey v. Humphrey, 7 Con. 116. * See 1 Greenl. Ev. § 65; Lord Chancellor Erskine, in Melville’s case, 29 Howell St. Tr. 764; ante, § 316, note, 323. ° Harding v. Brooks, 5 Pick. 244. Where the evidence was offered before the defendant had put in his testimony, it was rejected. Cornwall v. Richardson, Ryan & Moody N. P. 305. [418 ] . CHAP. XXII] ADULTERY. § 452 the testimony of witnesses of doubtful credit, he may intro- duce proof of his former good character.” } § 452. Moreover, the practice of the courts generally, in divorce suits, has been to receive evidence of character to an ex- tent somewhat beyond even the practice of the common law courts in criminal cases. Still we have not decisions clearly defining how far this exceptional course is permissible; and probably most of our tribunals would discard altogether any such exception, governing this particular class of cases. In Ohio it was laid down, in an adultery divorce suit, that the complainant's general reputation for chastity is always in issue, in cases of this sort; but not particular acts not pleaded by the defendant, and not the, general reputation of the de- fendant2 Plainly, if the defendant has not pleaded recrimi- nation, he cannot rely on even the ill conduct of the plaintiff, much less can he on his ill character; according to the doc- trine generally prevailing on this subject. In the leading English case of Evans v. Evans, which was a suit for cruelty promoted by the wife, Lord Stowell observed: “ The libel states the marriage at Calcutta, in the East Indies, in the year 1778; and it proceeds to plead the character of the parties; that he is a person morose, sullen, tyrannical, and so on; and that she is in every respect the reverse, a woman of a mild and tender disposition. These pictures are reversed, as is the usual manner, in the responsive allegation. It is usual in these sorts of causes to admit articles pleading in this man- ner the characters of the respective parties ; it is usual, I say, to admit such articles, but I have not understood that it is usual to examine upon them, or at least to examine upon them in the proportion which has been done in the present cause.. And J think that I feel the weight of some reasons which would induce me very much to question the propriety 1 Townsend v. Graves, 3 Paige, 453, 455; 1 Greenl. Ev. 5th ed. § 54, 55, and notes. 2 Harper v. Harper, Wright, 283. [419] § 453 SPECIFIC GROUNDS OF DIVORCE. [BooK v. of admitting such articles at all, if they were likely, in other cases, to lead to the consequences they have done in this ; for a very great part of this volaminous inquiry has turned, not upon the matter in issue in the present cause, but upon the general character of the two parties; and I have been loudly called upon on both sides, to determine that, which I am not called upon either by the nature of the authority which I possess, or by the necessity of the present case, to pronounce, the result of that evidence upon general character.”? And the present forms of pleading in the ecclesiastical courts appear not to contain this allegation, in suits either for cruelty or adultery.2. But when cruelty is the offence alleged,? there are peculiar considerations, which seem not to enter, at least not to the same degree, into the suit for other causes. § 453. Thus have we endeavored to present, in the forego- ing sections, such points relating to the evidence as seem adapted to assist practitioners and judges called into the con- sideration of these questions. But, after all, the help to be obtained from precedents is comparatively light. In many of our States, the question of fact is for a jury; and, in the other States, the judge will and should decide it substantially as he believes a jury would do.* } Evans v. Evans, 1 Hag. Con. 35, 4 Eng. Ec. 310,313. And see Dysart v. Dysart, 1 Robertson, 106, 141. 2 It is so, at least, with the forms given in Coote Ec. Pract. 320, 350. 3 Post, § 463. * The reader may consult, among other cases to which he is referred in this chapter, the following: Caton v. Caton, 13 Jur. 431; Grant v. Grant, 2 Curt. Ec. 16, 7 Eng. Ec. 3; Richardson v. Richardson, 4 Port. 467 ; Hart v. Hart, 2 Edw. Ch. 207, but query whether this was decided right; John- son v. Johnson, 4 Paige, 460; Bray v. Bray, 2 Halst. Ch. 506, 628; Hamer- ton v. Hamerton, 2 Hag. Ke. 8, 4 Eng. Ec. 13; Harris v. Harris, 2 Hag. Ec. 375, 376, 4 Eng. He. 160, 169; Mosser v. Mosser, 29 Ala. 313. : [420] CHAP. XXIII. | CRUELTY. § 454 CHAPTER XXIII CRUELTY. Secor. 454, 454a. Introduction. 455-458. The General Doctrine. 459-484 a, Some Particular attendant Propositions. 485-489. The Relative Rights and Duties of Husband and Wife. 490, 490a@. Cruelty by the Wife to the Husband. 491-496. The Defences. 496a-501. The Evidence. § 454. Cruevty, termed in the civil law, sometimes also in the ecclesiastical, sevitia,| is a ground of divorce from bed and board, in England and in some of the United States; while in other of these States the divorce for this cause is , from the bond of matrimony. The courts have been cautious about laying down any affirmative definition of this offence. Lord Stowell,? Sir John Nicholl? and Dr. Lushington* have severally declined to do so; considering it more safe not to travel much beyond negative descriptions. An examination of the authorities will however show, that legal cruelty can be defined affirmatively as well as many other things in the \ 1 Holden v. Holden, 1 Hag. Con. 453, 4 Eng. Ec. 452. ° Evans v. Evans, 1 Hag. Con. 35, 4 Eng. Ec. 310,311. In another case, however, this eminent judge observed: ‘The definition of legal cruelty is that which may endanger the life or health of the party ; the complaint gen- erally proceeds from the wife as the weaker person; but it may come from the man, and has so done in several cases; but generally the wife com- plains of what is dangerous to her, on the showing of which, the court re-" leases her from cohabitation.” Waring v. Waring, 2 Phillim. 132, 1 Eng. Ec. 210, 211; s. c. 2 Hag. Con. 153. ® Westmeath v. Westmeath, 2 Hag. Ec. Supp. 1, 4 Eng. Ec. 238, 270. * Neeld v. Neeld, 4 Hag. Ec. 263. 36 [421] athe § 454. SPECIFIC GROUNDS OF DIVORCE. [Book v. law to which affirmative definitions are given ; not indeed in a few faultless words, which carry entire precision and cer- tainty, and mark the boundary with unerring distinctness, but in terms sufficiently accurate for most practical purposes. Cruelty, therefore, is such conduct in one of the married par- ties, as renders further cohabitation dangerous to the physical safety of the other, or creates in the other such reasonable ap- prehension of bodily harm as materially to interfere with the discharge of marital duty.1 ' Evans v. Evans, 1 Hag. Con. 35,4 Eng. Ec. 310, 312. In Lockwood v. Lockwood, 2 Curt. Ec. 281, 7 Eng. Ec. 114, 115, Dr. Lushington consid- ered the substance of the doctrine laid down in Evans v. Evans to be, that “there must be either actual violence committed, attended with danger to life, limb, or health, or there must be a reasonable apprehension of such vio- lence.” Harris v. Harris, 2 Phillim. 111,1 Eng. Ec. 204; Bramwell v. Bram- well, 3 Hag. Ec. 618, 5 Eng. Ec. 232, 241, 242; Westmeath v. Westmeath, 2 Hag. Ec. Supp. 1, 4 Eng. Ee. 238; Barlee v. Barlee, 1 Add. Ec. 301, 305; Perry v. Perry, 2 Paige, 501; Whispell v. Whispell, 4 Barb. 217; Kenrick v. Kenrick, 4 Hag. Ec. 114, 129; Dysart v. Dysart, 1 Robertson, 470, 533, 546; Butler v. Butler, 1 Parsons, 329; Harratt v.. Harratt, 7 N. H. 196; D’Aguilar v. D’Aguilar, 1 Hag. Ec. 773, 3 Eng. Ec. 829, 336; Kenley v. Kenley, 2 How. Missis. 751. The above-cited case of Evans v. Evans, de- cided by Lord Stowell in 1790, is one of the master-productions of his lumi- nous intellect. It has been regarded ever since as the leading authority on this subject, and has been approvingly commented upon in almost every subsequent decision, English and American. The following most material extract has, in this way, gained almost the weight of statute law; and, though the leading principles it enforces will be found’ interspersed through the text of this chapter, it may be profitably read here: “ What is cruelty ? In the present case it is hardly necessary for me to define it; because the facts here complained of are such as fall within the most restricted definition of cruelty ; they affect not only the comfort, but they affect the health, and even the life of the party. Ishall, therefore, decline the task of laying down a direct definition. This, however, must be understood, that it is the duty of courts, and consequently the inclination of courts, to keep the rule extremely strict. The causes must be grave and weighty, and such as show an absolute impossibility that the duties.of the married life can be discharged. In a state of personal danger no duties can be discharged; for the duty of self-preser- vation must take place before the duties of marriage, which are secondary both in commencement and in obligation; but what falls short of this is with great caution to be admitted. The rule of per quod consortium amititur, is but an inadequate test; for it still remains to be inquired, what conduct [ 422] CHAP. XXIII.] CRUELTY. § 454 a, § 454 a. In the further unfolding of this subject, we shall consider, I. The General Doctrine; Il. Some Particular at- ought to produce that effect? whether the consortium is reasonably lost ? and whether the party quitting has not too hastily abandoned the consortium ? “What merely wounds the mental feelings is in few cases to be admitted, where not accompanied with bodily injury, either actual or menaced. Mere austerity of temper, petulance of manners, rudeness of language, a want of civil attention and accommodation, even occasional sallies of passion, if they do not threaten bodily harm, do not amount to legal cruelty; they are high moral offences in the marriage state undoubtedly, not innocent surely in any state of life, but still they are not that cruelty against which the law can relieve. Under such misconduct of either of the parties, for it may exist on one side as well as on the other, the suffering party must bear in some degree the consequences of an injudicious connection ; must subdue by decent resist- ance or by prudent conciliation ; and, if this cannot be done, both must suffer in silence. And if it be complained, that by this inactivity of the courts much injustice may be suffered, and much misery produced, the answer is, that courts of justice do not pretend to furnish cures for all the miseries of human life. They redress or punish gross violations of duty, but they go no further; they cannot make men virtuous ; and, as the happiness of the world depends upon its virtue, there may be much unhappiness in it which human laws cannot undertake to remove. '“ Still less is it cruelty, where it wounds not the natural feelings, but the acquired feelings, arising from particular rank and situation; for the court has no scale of sensibilities by which it can gauge the quantum of injury done and felt, and therefore, though the court will not absolutely exclude considerations of that’ sort, where they are stated merely as matter of aggra- vation, yet they cannot constitute cruelty where it would not otherwise have existed ; of course the denial of little indulgences and particular accommoda- tions, which the delicacy of the world is apt to number among its necessaries, is not cruelty. It may, to be sure, be a harsh thing to refuse the use of a carriage, or the use of a servant; it may in many cases be extremely un- handsome, extremely disgraceful to the character of the husband; but the ecclesiastical court does not look to such matters; the great ends of marriage may very well be carried on without them; and, if people will quarrel about such matters, and which they may do in many cases with a great deal of acrimony, and sometimes with much reason, they yet must decide such matters as well as they can in their own domestic forum. “ These are the negative descriptions of cruelty ; they show only what is not cruelty, and are yet perhaps the safest definitions which can be given, under the infinite variety of possible cases that may come before the court. But if it were at all necessary to lay down an affirmative rule, I take it that the rule cited by Dr. Bever from Clarke, and the other books of practice, is [ 423 J § 455 SPECIFIC GROUNDS OF DIVORCE. [BooK v. tendant Propositions; III. The relative Rights and Duties of Husband and Wife; IV. Cruelty by the Wife to the Hus- band; V. The Defences; VI. The Evidence. J. The General Doctrine. § 455. We have seen, that, in this country, there being no ecclesiastical courts here, all jurisdiction to grant divorces is created by express statutes.!_ In respect to cruelty, the words of the statutes differ in the different States; but, in legal import, they are substantially alike. Thus, in Kentucky, the language is, “cruel, inhuman, and barbarous treatment ;”* in Massachusetts, “ extreme cruelty ;”® in Alabama, “ cruel, bar- barous, and inhuman treatment;”* in New York, “ cruel and a good general outline of the canon law, the law of this country, upon this subject. In the older cases of this sort, which I have had an opportunity of looking into, I have observed that the danger of life, limb, or health, is usually inserted as the ground upon which the court has proceeded to a separation. This doctrine has been repeatedly applied by the court in the cases that have been cited. The court has never been driven off this ground. It has been always jealous of the inconvenience of departing from it, and I have heard no one case cited, in which the court has granted a divorce with- out proof given of a reasonable apprehension of bodily hurt. I say an appre- hension, because assuredly the court is not to wait till"the hurt is actually done; but the apprehension must be reasonable ; it must not be an appre- hension arising merely from an exquisite and diseased sensibility of the mind. Petty vexations applied to such a constitution of mind may certainly in time wear out the atiimal machine, but still they are not cases of legal relief; peo- ple must relieve themselves as well as they can by prudent resistance, by calling in the succors of religion and the consolation of friends; but the aid of courts is not to be resorted to in such cases with any effect.” Evans v. Evans, 1 Hag. Con. 35, 4 Eng. Ec. 310, 311. 1 Ante, § 21. * Finley v. Finley, 9 Dana, 52. This is cause for divorce from bed and board; a wife may have a divorce from the bond of matrimony where her husband’s “ treatment to her is*so cruel and barbarous and inhuman as actually to endanger her life.” Thornberry v. Thornberry, 2 J. J. Marshall, 322. 8 Warren v. Warren, 3 Mass. 321. “ Moyler v. Moyler, 11 Ala. 620. [ 424 ] CHAP. XXIII. | CRUELTY. . § 456 inhuman treatment,” and such conduct on the part of the husband toward his wife, as renders it “ unsafe and improper for her to cohabit with him;”+ in Pennsylvania, “when the husband shall have, by cruel and barbarous treatment, endan- gered his wife’s life, or offered such indignities to her person as to render her condition intolerable, and life burdensome, and thereby forced her to withdraw from his house and family ;”? in Connecticut, “intolerable cruelty ;”? in Mary- land, “cruelty of treatment;”* in Illinois, “extreme and repeated cruelty ;” '— which several expressions are construed -to mean substantially or identically the same thing as the sevitia, or cruelty, of the English ecclesiastical courts. But the statutes of Texas, Louisiana, Arkansas, and perhaps some other States, are in more comprehensive terms, and are held to authorize a divorce for a degree of ill treatment in- sufficient in the ecclesiastical law.§ § 456. The reader will see, recurring to our definition of cruelty,’ that the object of the suit for cruelty must be sub- stantially to prevent an apprehended harm; in other words, that the proceeding is, in effect, one guia timet. The court 1 Mason v. Mason, 1 Edw. Ch. 278. ? Butler v. Butler, 1 Parsons, 329. See post, § 459, note; Eshbach ». Eshbach, 11 Harris, Pa. 343. ; 3 Shaw v. Shaw, 17 Conn. 189. * Coles v. Coles, 2 Md. Ch. 341 ; Daiger v. Daiger, 2 Md. Ch. 335; Tay- man v. Tayman, 2 Md. Ch. 393; Bowic v. Bowic, 3 Md. Ch. 51. * Harman v. Harman, 16 Ill. 85. The cruelty need not, under the Illinois statute, be endured two years, though the words are, — “and for extreme and repeated cruelty, and habitual drunkenness for the space of two years.” Ib. See also, concerning the Dlinois statute, Vignos v. Vignos, 15 Jl. 186. ® Post, § 461. The Wisconsin statute employs the words: “ When the treatment of the wife by the husband has been cruel and inhuman, whether practised by using personal violence or by any other means; .. . . or when his conduct towards her is such as may render it unsafe and improper for her to live with him.” As to the construction of which statute, see Johnson v. Johnson, 4 Wis. 135. 7 Ante, § 454. 36* [ 425] § 456 SPECIFIC GROUNDS OF DIVORCE, [BooK v. interferes, not so much to punish an offence already commit- ted, as to prevent the commission of one.! Therefore Godol- phin says: “If, by reason of the cruelty of the husband, the wife shall blamelessly flee from him; and the husband shall offer sufficient security or caution for his future good behavior to her, and her safety and peace with him, and the cruelty or ill-usage not such but that by such caution the wife’s peace and safety may be undoubtedly secured; and she, notwith- standing, refuse to return— in such case the law will not compel him to allow her alimony.” Still there is no reported 1 Harris v. Harris, 2 Phillim.111, 1 Eng. Ec. 204; Bramwell v. Bramwell, 3 Hag. Ec. 618, 5 Eng. Ee. 232, 241, 242; Lockridge v. Lockridge, 3 Dana, 28; Rhame v. Rhame, 1 McCord Ch. 197; Dysart v. Dysart, 1 Robertson, 106, 139, 470, 540; Neeld v. Neeld, 4 Hag. Ec. 263, 268, 270; Stephens v. Totty, Cro. Eliz. 908; Headen v. Headen, 15 La. 61; Moyler v. Moyler, 11 Ala. 620; Harratt v. Harratt, 7 N. H. 196; D’Aguilar v. D’Aguilar, 1 Hag. Ec. 773, 3 Eng. Ec. 329; Lockwood v. Lockwood, 8 Curt. Ec. 281, 7 Eng. Ee. 114. : 2 Godol. Ab. 509; Ayl. Parer. 59. The South Carolina courts have held, that a wife, who, on being ill used by her husband, brings suit for alimony (not a suit for divorce from bed and board, but for alimony, as explained post, § 551 et seq.), is not obliged to go back to him, on his offering to receive her and use her well; unless the offer is made in good faith, and under cir- cumstances leading to the reasonable conviction it will be fulfilled. Three- wits v. Threewits, 4 Des. 560; Taylor v. Taylor, 4 Des. 167. See also Jelineau v. Jelineau, 2 Des. 45. The general principle was laid down in a Virginia case, that the céurt will not grant alimony to the wife (in the pe- culiar suit called a suit for alimony), if the husband offers in good faith to receive her back, and treat her well. The question in such a case would seem to be, whether the court is satisfied the offer will be really carried into effect. Almond v. Almond, 4 Rand. 662. In New Jersey it is held, that, if a wife leaves her husband in consequence of his cruel treatment of her, and. afterward brings her bill for divorce against him for the cruelty, he can- not aid his defence by serving notice upon her, pending the bill, to return. Graecen v. Graecen, 1 Green Ch. 459. See also Kinsey v. Kinsey, and Thompson v. Thompson, 1 Yeates, 78, 2 Dallas, 128; Head v. Head, 3 Atk. 295; Hansley v. Hansley, 10 Ired. 506. In Kenley v. Kenley, 2 How. Missis. 751, it was held, that, where a separate provision has been ordered for the wife, on account of her husband’s cruel treatment, if he bond jfide offers to cohabit with her, and to treat her kindly in the future, the separate main- tenance will be discontinued. [426 J CHAP. XXIII] CRUELTY. § 458 instance in modern practice, wherein this principle has been carried’ to the extent of discharging from the suit the husband on his producing, during its pendency, security for his future good behavior. In Scotland, by the old law, which accorded herein with the canon law, it was a relevant defence for the spouse accused of cruelty, on account of which a separation was prayed, to ofler caution for future good conduct, and this remedy was sometimes ordered by the court; but the practice appears to have fallen into disuse.! § 457. From the foregoing propositions we see, that the divorce for cruelty has its foundation in nature2 Unjust and unnatural would it be to compel a wife to continue a cohabi- tation which all persons could discern to be attended with personal danger to her. And if she herself were in fear, even though others were not fearful for her; and, if her fear had been brought on by the improper conduct of her husband, reasonably leading to this result; nature would cry out in her behalf, admonishing us, that, in this state of fear, she could not discharge well the duties required of a wife; and so she should be relieved from them? Still the duties of wife may be done tolerably, where there is great inquietude; humanity on earth dwells not in a state of perfection, and in paradise; therefore, in the language of Lord Stowell, the causes which will justify this divorce must be “grave and weighty, and such as show an absolute impossibility that the duties of the married life can be discharged.” # § 458. Looking therefore at this matter of cruelty in a philosophical way, two distinct questions appear to present themselves; namely, what is the nature of the harm to be apprehended? what acts must be done creating the ap- prehension? But practically we cannot well separate the 1 1 Fras. Dom. Rel. 463. 2 Ayl. Parer. 229. * And see Evans v. Evans, 1 Hag. Con. 35, 4 Eng. Ec. 310, 311. * Evans v. Evans, supra. [427] § 459 ’SPECIFIC GROUNDS OF DIVORCE. [BooK v. questions thus, and so we shall content ourselves with dis- cussing some general points, in succeeding sections of this chapter. II. Some Particular attendant Propositions. § 459. The proposition seems to be, on the whole, well es- tablished in England and in most of our States, that the harm to be apprehended must be bodily harm, in distinction from , mental suffering.’ For while it is admitted, that pain of mind 1 Harris v. Harris, 2 Phillim. 111, 1 Eng. Ec. 204; Barlee v. Barlee, 1 Add. Ec. 301, 305 ; Kirkman v. Kirkman, 1 Hag. Con. 409, 4 Eng. Ec. 438; Oliver v. Oliver, 1 Hag. Con. 361, 4 Eng. Ec. 429, 430; Shaw v. Shaw, 17 Conn. 189; Moyler v. Moyler, 11 Ala. 620; Helms v. Franciscus, 2 Bland, 544; Boggess v. Boggess, 4 Dana, 307; Lucas v. Lucas, 2 Texas, 112; Ken- ley v. Kenley, 2 How. Missis. 751; Williams v. Fowler, McCleland & Younge, 269; Harwood v. Heffer, 3 Taunt. 420; Hughes v. Hughes, 19 Ala. 307; Daiger v. Daiger, 2 Md. Ch. 335; Bowic v. Bowic, 3 Md. Ch. 51. In a late Scotch ease, before the House of Lords on appeal, Lord Brougham said of the English law on the point in the text: “There is so much dictum, there are so many opinions or inclinations of opinions ventilated, which have a tendency to go further, that, if'a case were to arise such as that which the in- genuity of some of the learned judges in Scotland supposed, I have very little doubt that we should find the rule considerably extended, and that that which only now rests upon opinions, more or less distinctly expressed in the shape of dicta, would assume the form ultimately of decision; namely, that, if the hus- band, without any violence or threat of violence to the wife, without any mal- treatment endangering life or health, or leading to an apprehension of danger to life or health, were to exercise mere tyranny, to utter constant insult, vituperation, scornful language, charges of gross offences utterly groundless; charges of this kind made before her family, her children, her relations, her friends, her servants ; insulting her in the face of the world and of her own domestics, calling upon them to join in those insults, and to treat her with contumely and with scorn; if such a case were to be made out, or, even short of such a case, namely, injurious treatment which would make the marriage state impossible to be endured, rendering life itself almost unbear- able, then I think the probability is very high that the consistory courts of this country would so far relax the vigor of their negative rule, at present somewhat vague, as to extend the remedy of a divorce a mensé et thoro to a case such as I have put.” Paterson v. Paterson, 7 Bell Ap. Cas. 337, 366, [ 428 ] CHAP. XXIII. ] CRUELTY. § 459 , may be even more severe than bodily pain; and a husband disposed to evil may create more misery in a sensitive and af- fectionate wife, by a course of conduct addressed only to the mind, than if, in fits of anger, he were to inflict occasional blows upon her person;! still it is said, that, in such a case, “the court has no scale of sensibilities by which it can gauge the quantum of injury done and felt.”?_ The rule, therefore, 12 Eng. L. & Eq. 19, 30. I am afraid Lord Brougham was mistaken about there being even dicta, to any great extent, in favor of these views. At any rate, there are many dicta the other way; a specimen of which may be found in the still later English case of C. v. C. 28 Eng. L. & Eq. 603, 605. 1 See ante, § 286, 287. And see the observations of Sir John Nicholl, in Durant v. Durant, 1 Hag. Ec. 733, 3 Eng. Ec. 310, 327, 328. “ There are other sufferings,” observes Dewey, J.,in Pidge v. Pidge, 3 Met. 257, 261, “ not less intense than those occasioned by bodily wounds. Angry words, coarse and abusive language, grossly intemperate habits, might bring greater sufferings upon a refined and delicate woman, than a single act of violence upon her person.” ? Lord Stowell, in Evans v. Evans, 1 Hag. Con. 35, 4 Eng. Ec. 310, 311. And see Cheatham v. Cheatham, 10 Misso. 296. In the Supreme Court of Pennsylvania, and with reference to the statute of that State (post, § 541 a), Coulter, J., observed: “‘ To render the condition of a wife intolerable, and her life burdensome, it is not necessary that there should be blows, or cruel and barbarous infliction of batteries that endanger her life. There may, without that, be such indignities to her person as to render her life a burden. The husband is bound to the observance of duty to his wife; and as mar- riage is founded on the original constitution of the sexes, and dignified by strong and peculiar sentiments of affection, delicacy, and honor, all treat- ment which violates these principles, habitually and constantly, and proceeds avowedly from hatred, revenge, and spite, and which renders even the hours devoted to repose hours of weeping and distress, must render a woman’s condition intolerable, and her life burdensome. Yet all these, and more, were present at this ill-fated marriage, to induce the libellant to seek peace in the dissolution of a contract which the respondent admitted was entered into on his part to revenge former slights, or rejections of his suit.” Elmes v. Elmes, 9 Barr, 166. It is presumed, however, that the court did not fully intend to establish a doctrine variant from the English rule; for nothing other than the above language appears in the report indicating such a con- clusion. And, a few months later, the Court of Common Pleas of the same State affirmed, under the statute, the English rule, in a case which was ably discussed at the bar, and much considered by the judges. Butler v. Butler, [ 429 ] § 460 SPECIFIC GROUNDS OF DIVORCE. [Book v. seems to have arisen, not from any notion of its inherent jus- tice, but from the difficulty of practically administering the Opposite rule, of regarding the mind, the same as the body. § 460. The rule mentioned in our last section, of limiting the divorce to cases in which the danger extends to the body, in distinction from the mind, appears not to be in accordance with the views of the jurists of continental Europe; while, in Scotland, the more enlarged rule, of regarding the mental suffering and danger equally with the physical, has struggled also for a doubtful existence. Thus, in Scotland, where a husband publicly and perseveringly reproached his wife falsely, with lascivious behavior and immoderate lust, the Commissaries and the Court of Session held this a sufficient ground for a judicial separation; but the House of Lords reversed the decision! In subsequent cases, however, opin- ions have been indicated by the Scotch courts to the effect, that a course of harsh and contumelious usage, which might be practised without any personal violence, and be more harass- ing to the feelings, and more insupportable, than personal violence offered in the heat of passion,— would be suffi- cient.2. The latter opinion, indeed, appears to have received countenance in the House of Lords;* but, in a very recent case, this tribunal, on a Scotch appeal, went far to shake the doctrine ;+ and we may not be able, on the whole, to say precisely what is the present Scotch law relating to this point. 1 Parsons, 329. So, under a similar statute, did the Court of Appeals of Kentucky. Finley v. Finley, 9 Dana, 52. See also Mayhugh v. Mayhugh, 7 B. Monr. 424; Thornberry v. Thornberry, 2 J.J. Marshall, 322; Jelineau v. Jelineau, 2 Des. 45. 1 Leckie v. Moir, A.p. 1750. See 1 Fras. Dom. Rel. 456. 2 1 Fras. Dom. Rel. 456. ® Arthur v. Gourlay, 2 Paton, 184. * Paterson v. Paterson, 7 Bell Ap. Cas. 337. 5 See 45 Law Mag. 61, where, however, the views of the writer are hardly borne out by the cases he cites. And see Fulton v. Fulton, 12 Scotch Sess. Cas. 1104. [ 480 J CHAP. XXIII.] CRUELTY. § 461 a § 461. In Louisiana, the Code of which State provides for a divorce from bed and board for excesses, cruel treatment, and outrages of such a nature as to render the living together of the parties insupportable, it is held, that “a series of studied vexations and provocations on the part of a husband, without ever resorting to personal violence, might constitute that degree of cruel treatment and outrage which would form a just ground for a separation from bed and board.”+ And in Texas, a similar statute, authorizing a divorce from the bond of matrimony, has received substantially the: same con- struction. Yet even in Texas it was decided, that occasional sulkiness, a gadding disposition, and so much inattention to appropriate duties as to compel the husband, in one instance, to mend his own coat, are not adequate ground? Neither is the commission of theft, forgery, or other crime, sufficient ; since this is an infraction of the husband’s duties to society, not an outrage inflicted particularly upon the wife? § 461 a. When we look at the point now under considera- tion, as one rather of correct legal principle than of precise legal authority, we are led into the following observations: Starting from the proposition already mentioned,‘ that the di- vorce suit for cruelty has its foundation in nature, since nature allows not to woman the capacity of discharging well the duties of wife while she is in bodily fear,— we proceed, by only a single step, to the further proposition, resting as distinctly and as fully in nature as the other, that the woman whose soul is wrung evermore with mental anguish by the hands of her 1 Tourné v. Tourné, 9 La. 452, 456. Of course, blows inflicted on the wife by the husband are sufficient. Armant v. Her Husband, 4 La. Ann. 137. It is the same substantially in Arkansas. Rose v. Rose, 4 Eng. 507. 2 Sheffield v. Sheffield, 3 Texas, 79; Byrne v. Byrne, 3 Texas, 336, 340; Wright v. Wright, 6 Texas, 3; Nopees v. Nogees, 7 Texas, 538. 3 Lucas v. Lucas, 2 Texas, 112; Wright v. Wright, 6 Texas, 3; Sherman v. Sherman, 18 Texas, 521,525. As to the Texas law, see, faciher, Taylor v. Taylor, 18 Texas, 574; Camp v. Camp, 18 Texas, 528. * # Ante, § 457. [431 ] § 461 a SPECIFIC GROUNDS OF DIVORCE. [BooK v. husband, cannot, whatever she may desire, discharge to him well the duties of wife. And if she cannot, then nature de- mands her freedom from obligation to do the thing impossible to be done. And although the court may not, as Lord - Stowell says, have any “scale of sensibilities by which it can gauge the quantum of injury done and felt,’1 it may some- times know the injury is too great to be borne, as well when" it is addressed primarily to the mind, as when it hangs over only the body. The court, in the latter case, may sometimes doubt, whether what impends is sufficient ; it can only doubt in the former; and, when it does doubt, it withholds the remedy; when it does not, it gives the remedy. “If it be true,” said Perkins, J., in a recent Indiana case, “that we are possessed of social, moral, and intellectual natures, with wants to be supplied, with susceptibilities of pain and pleasure; if they can be wounded and healed, as well as the physical part, with accompanying suffering and delight, then, we think, that conduct which produces ‘perpetual social sorrow, although physical food be not withheld, may well be classed as cruel, and entitle the sufferer to relief. And in point of fact we have no doubt, that mere cold neglect has sent broken-hearted to the grave hundreds of wives, where the dagger, poison, and purposed starvation have sent one. Men generally supply a sufficiency of food to their brute animals.”? The doctrine suggested in this section is not opposed by the peculiar language of our statutes generally. The term cruelty, if it means simply what it means in the English law, still em- braces whatever a true construction of the English law im- plies ; though modern English judges should be found to have narrowed its exposition, contrary to its inherent and original signification. If again the term, as employed in our statutes, is to have its popular exposition, then plainly it extends as far as is herein intimated. For in popular phrase, men are often cruel to their wives, though neither inflicting nor threat- ening blows. 1 Ante, § 459. ° Rice v. Rice, 6 Ind. 100, 105. [432] CHAP. XXIIL] * CRUELTY. § 462 § 462. Still, assuming cruelty to exist only where there is either actual or threatened bodily harm, if a wife has shown against her husband acts tending to her bodily harm, she may then, from this foundation, introduce evidence of what is addressed only to the mind; for example, language and con- duct designed to wound her feelings;! though the precise limit of this rule appears not to be very clearly defined. Thus a groundless and malicious charge, against her chastity, or of incest,2 when the foundation for it is so laid, is considered a gross act of cruelty, and almost sufficient of itself;? though we have seen, that, standing quite alone, it is no cause for divorce And Dr. Lushington has observed, that foul and disgraceful language, addressed by the husband to his wife, “ may not alone be cruelty in its legal sense; but the use of it would induce the court more readily to believe evidence as " Whispell v. Whispell, 4 Barb. 217; Moyler v. Moyler, 11 Ala. 620; Saunders v. Saunders, 10 Jur. 143, 144. And see Evans v. Evans, 1 Hag. Con. 35, 4 Eng. Ee. 310, 327. 2 Gale v. Gale, 2 Robertson, 421. So, generally, a charge of any crime. Nogees v. Nogees, 7 Texas, 538. 3 Durant v. Durant, 1 Hag. Ec. 733, 769, 3 Eng. Ec. 810, 328; Bray v. Bray, 1 Hag. Ec. 163, 3 Eng. Ec. 76; Otway v. Otway, 2 Phillim. 95, 1 Eng. Ec. 200; Mayhugh v. Mayhugh, 7 B. Monr. 424; Whispell v. Whispell, su- pra; Jelineau v. Jelineau, 2 Des. 45; Kirkman v. Kirkman, 1 Hag. Con. 409, 4 Eng. Ec. 438; Yule v. Yule, 2 Stock. 138; Sharp v. Sharp, 2 Sneed, 496. Butsee Shaw v. Shaw, 17 Conn. 189,194. In a New Jersey case, the Chancellor observed: “ The complainant alleges, that her husband, for the purpose of laying a foundation of a divorce from her, negotiated a plan with one Alexander Dawson, by which he, Dawson, after his wife had gone to bed, was to go in her room, and get into her bed, and then witnesses were to be introduced into the room suddenly, and detect him in that posi- tion. If this charge be true, a more base attempt to ruin the character of his wife could not be conceived of, and should for ever absolve her from all further obligations to him.” Graecen v. Graecen, 1 Green Ch. 459. In- deed the Texas court seems to regard a charge of adultery by the husband against the wife, if groundless and malicious also, to be sufficient cruelty to- authorize the divorce. Pinkard v. Pinkard, 14 Texas, 356. And see Shef- field v. Sheffield, 3 Texas, 79, 84; Atkins v. Atkins, post, § 465, note. * Ante, § 459-461. And see Lewis v. Lewis, 5 Misso. 278; Cheatham v. Cheatham, 10 Misso. 296. 37 : [ 433] § 463 SPECIFIC GROUNDS OF DIVORCE. [BOOK Vv. to personal violence; for it would manifest a total want of sélf-command, and the absence of all controlling principle.” So the habit of the husband to abuse his wife,? and his ordi- nary temper,? are important on the question of his cruelty. § 463. Dr. Lushington, while considering the matter of the admissibility of a wife’s libel charging cruelty, after stat- ing the general law of this offence, and observing, that, “in these suits, the species of facts most generally adduced are, first, personal ill-treatment, which is of different kinds, such , as blows, or bodily injury of any kind; secondly, threats of such a description as would reasonably excite, in a mind of ordinary firmness, a fear of personal injury,” — added : “ When facts of the description to which the court has adverted are admitted to proof, it is perfectly consistent with the principles already mentioned, that minor ¢ircumstances should be also admitted ; because, on many occasions, they may illustrate other facts; they may afford information of importance, and, where the witnesses do not speak with precision, or where the evidence is not clear, they may influence the amount of alimony (if the suit be successful) to be allotted to the wife. But these circumstances must not be light or trifling; they should be of the same character as the principal charges, though not to the same extent.”* It should be observed, however, that the learned judge was here considering the allegations which may be introduced into the libel, not the facts provable outside the allegations. For the court may consider and give weight to matters not pleaded, though they cannot be the foundation, or only ground, for the divorce.5 1 Dysart v. Dysart, 1 Robertson, 106, 117, 121; Whispell v. Whispell, supra. ? Otway v. Otway, 2 Phillim. 95. * Westmeath v. Westmeath, 2 Hag. Ec. Supp. 1, 4 Eng. Ec. 238, 283, 293. * Neeld v. Necld, 4 Hag. Ec. 263, 266. And see C. v. C. 28 Eng. L. & Eq. 603, 605; Gale v. Gale, 2 Robertson, 421. 5 Carpenter v. Carpenter, Milward, 159; Whispell v. Whispell, 4 Barb. 217. : [434 J CHAP. XXIII] CRUELTY. § 463 a And in a later case the same learned judge observed: “ The whole character and conduct of the parties have been, and ever must be, in all these cases, necessary ingredients in the judgment ; without them, the truth can never be sifted, or the just conclusion reached; on a general review must, in some degree, depend the belief of particular occurrences, and the probability of future conduct, if the parties are to live together.” } § 463. Concerning what may be shown against a party, outside of the allegation, the question may sometimes be one of difficulty ; but, on the whole, the doctrine best established in reason permits the broadest latitude to be given to inquiries concerning the general conduct and deportment of the par- ties to one another; provided, of course, there is sufficient allegation of specific fact to lay a proper foundation for such testimony, and the allegation of the specific matter is also established in evidence. But without this foundation, no considerate judge would suffer himself to listen to general statements of mere general deportment and bearing. Ina late Missouri case, a learned judge observed: “It is obvious, that, in cases of this kind, the attention cannot be confined to the particular act or acts alleged as a ground for a divorce, but the inquiry must necessarily involve the conduct of the parties to each other for the period during which it is alleged that the misconduct took place. It is not like the case of a bill for divorce for adultery or any other specific act, on the proof of which the complainant by law becomes entitled to a divorce, but the cruelty in most cases which gives cause for a divorce must be evidenced rather by general conduct than by particular acts. The act or acts alleged may be proved, but a divorce would not follow as a matter of course.” Yet, to prevent misapprehension, he adds further on: “ We do not maintain, that a single act of cruelty may not be evidence of 1 Dysart v. Dysart, 1 Robertson, 106,141. See also D’ Aguilar v. D’Agui- lar, 1 Hag. Ec. 773, 774, note, 8 Eng. Ec. 329, 331; Reese v. Reese, 23 Ala. 785; ante, § 456. [ 435 ] § 465 SPECIFIC GROUNDS OF DIVORCE. [BOOK V. so depraved a heart, and be accompanied with such circum- stances, as would authorize a divorce; but we speak generally of cases for divorce on the ground of cruelty.” ? § 464. The physical danger, justifying a divorce, may either be danger to the life or limb, such as of blows, poisoning, or the like;2 or danger merely to the health.2 The only qualifi- cation required is, that it be sufficient in degree. § 465. And, correlative to the last proposition, is another ; namely, that the kind of conduct importing danger is imma- terial; for whatever tends to the bodily harm of the injured party, and so renders cohabitation unsafe, is legal cruelty. ‘Thus, though the court will not interfere on account of vio- lent, abusive, and insulting language employed by the hus- band toward his wife, while her personal safety is not endangered ;° yet, if there are words of menace likely to be carried into effect, they will be sufficient;® for “ assuredly,” says Lord Stowell, “the court is not to wait till-the hurt is actually done.”? There is an early Massachusetts case, in which the court is reported to have said: “ Threats of vio- lence, without an actual assault, are not a legal cause for divorce. The wife’s remedy in such a case is by exhibiting articles of peace against her husband.”® But many of the 1 Scott, J., in Doyle v, Doyle, 26 Misso. 545, 546, 547, And see post, § 496 a-497 a. 2 Ayl. Parer. 228 ; Stephens v. Totty, Cro. Eliz. 908. 3 See cases cited, ante, § 454, 456, 459. * Holden v. Holden, 1 Hag. Con. 453, 4 Eng. Ec. 452, 454. 5 See Vignos v. Vignos, 15 Ill. 186; Eshback v. Eshback, 11 Harris, Pa. 343, 345. ® Harris v. Haris, 2 Phillim. 111,1 Eng. Ec. 204; ‘Oliver v. Oliver, 1 Hag. Con. 361, 4 Eng. Ec. 429, 480. Dr. Radcliff says, “ Words of menace may be merely the language of passion, or they may be the expression of deter- mined malignity, which, if likely to be carried into effect, may warrant the court to interpose to prevent the actual mischief threatened.” Carpenter v. Carpenter, Milward, 159. 7 Evans v. Evans, ante, § 454, note. 8 Hill v. Hill, 2 Mass. 150. In this same case, “ Curia” is also reported to [ 436 ] CHAP. XXIII.] CRUELTY. § 465 early Massachusetts decisions are loosely reported; and we can hardly presume the court, in this one, intended to lay down a rule in opposition to the concurrent judicial opinion of the entire world besides. Or, if it did so intend, since the obser- vation is but little more than dictum, we can hardly presume the tribunal afterward would follow it! have observed: “In a libel for divorce from bed and board only, you have no occasion to prove a marriage, unless it be denied; ” and these two blun- ders comprise the whole case. The presumption clearly is, that it is not correctly reported. In Warren v. Warren, 3 Mass. 321, Parsons, C.J., is reported to have said: “ The extreme cruelty of the statute means personal violence, and answers to the sevitia of the civil law.” By the words “ per- sonal violence,” he must have intended physical injuries apprehended, as well as actual ; for else it would not in any proper sense “ answer to the sevitia of the civil law.” If a wife has exhibited articles of peace against her husband, and he is under bonds to keep the peace, she may still proceed against him for a divorce. So likewise she may, though she has been living for a considerable time separate from him. Hulme v. Hulme, 2 Add. Ec. 27, 2 Eng. Ec. 208. 1 The case of Atkins v. Atkins, decided by the Massachusetts Supreme Judicial Court, March T. 1849, will shed some light upon this question ; and it is important in other aspects. It is not found in the regular reports , but the following emended newspaper report of it, is considered by the , learned judge who delivered orally the opinion of the court, to be in sub- stance correct :— ‘“ Witps, J., entered a decree, granting a divorce from bed and board according to the prayer of the wife, substantially upon the following grounds : “The facts in this case are briefly these : — The parties have been married but a few months; the age of the husband is sixty years, and of the wife only twenty-two, a disparity,of years which generally, as in the present instance, leads to unhappiness. After they had lived together some four months, the husband ‘ took the fancy into his head, without any provocation whatever,’ that his wife was unfaithful. He used on various occasions abusive language to her, calling her a ‘ prostitute,’ accusing her of criminal connection with a young man by the name of Wigglesworth; and these calumnies he also asserted to other persons. He,also used toward the libellant personal vio- lence on several occasions, shaking his fist in her face, accompanied with the violent language above stated, attempting to drive her out of the house; on one occasion, too, he seized her violently by the arm for the purpose of ex- pulsion. “ T have considered this case very carefully, and, at the suggestion of the 37* [ 487 ] § 466 SPECIFIC GROUNDS OF DIVORCE. [Book v. § 466. What was properly meant by the Massachusetts court is, that meaningless threats of violence, not intended counsel for the respondent, I have consulted with my brethren of the bench (except Fletcher, J., who was absent), and they concur in the opinion I am about to pronounce. “ Several English decisions have been cited by the defendant to show, that the above facts would not authorize a divorce. Sir William Scott has said, ‘mere austerity of temper, rudeness of manner, which wound the mental feelings, unless they place the wife in peril of bodily harm, cannot sustain a libel for divorce from bed and board.’ Sir John Nicholl says, ‘the causes of divorce must be grave and weighty; there must be danger of bodily harm, and reasonable apprehension of personal injury, so as to render cohabitation unsafe; in one word, there must be sevitia in a legal sense to substantiate a libel for separation.’ Now there are some points of difference between the law of divorce as established in England and in this Common- wealth. For instance, in England adultery is not cause for a divorce from the bond of matrimony ; and one witness uncorroborated is not sufficient to establish any fact in evidence. By the old English law, too, and perhaps by the modern, a husband may chastise his wife for er faults. Chancellor Walworth has well said of such corporeal correction, that it is not authorized by the laws of any civilized country ; not indeed meaning that England is not civilized, but referring to the anomalous relics of barbarism which cleave to her jurisprudence. I suppose, therefore, that more flagrant in- stances of abuse would be requisite to sustain a libel for divorce from bed and board in England than in this country. Yet so far as the present case is affected, the law of the two countries is substantially the same. The law does not require many acts of cruelty ; one is enough, if it induces the court to think that the wife isin danger of bodily harm. Neither need the wife be wholly without blame. There are several cases of divorce from bed and board in the reports of this court. It has been held, that threats of violence alone, where there is no danger of bodily harm, are insufficient. It has been held, 4 Mass. 587, that, when force and violence have been once used, the wife is unsafe. I have decreed a divorce in Middlesex, where the hus- band accused the wife of adultery, and locked her up. In Poor v. Poor, 8 N. H. 309, the court say, that profane and abusive language, though not of itself sufficient to sustain a libel for divorce, goes a great way to show the personal insecurity of the wife. “ Such is the state of the law : it is only necessary to apply it to this case. The husband is jealous, he calls the wife a prostitute, and accuses her to others of adultery. All, as it seems, without reason. Wigglesworth, among others, testified that he had very little acquaintance with the wife; that she was a reserved, modest woman. This jealousy brings on paroxysms of pas- sion. All this occurs very soon after the marriage. Surely jealousy is one [ 438 ] CHAP. XXIII.] CRUELTY. § 466 really to be executed, and not understood by the wife as endangering her personal safety,! are insufficient to justify alone a divorce for cruelty. That violence actually executed is not necessary is as firmly established as any principle of law can be, in England,? Ireland,’ Scotland, and the Amer- ican States generally;5 and in Scotland and continental Europe even less is required.6 The old common law illus- tration of cruelty is an attempt to poison; “if the husband does by poison, or any other severe usage, lay snares against his wife’s life;”7 where actual violence of course is not presumed. And where words of menace are the ground of the suit, they need not appear to have been addressed to or in the presence of the wife; the test is, whether they excite a reasonable apprehension of bodily harm; and Lord Stowell of the strongest passions which can actuate man. No wife would be safe under the accusation of adultery, accompanied by paroxysms of passion and menaces of violence. Besides, in the present case, there is evidence of violence actually used. “ The divorce must be decreed with costs to the libellant. “ The court remarked, that the case could be carried no further by the respondent, having been passed upon by the whole court. Isaac Story, Jr., for the libellant ; W. Sohier for the respondent.” > Threats of this kind are insufficient. Shell v. Shell, 2 Sneed, 716; Breinig v. Meitzler, 11 Harris, Pa. 156. ? Harris v. Harris, Evans v. Evans, Oliver v. Oliver, and Hulme v. Hulme, cited ante, § 465; D’Aguilar v. D’ Aguilar, 1 Hag. Ec. 773, 3 Eng.-Ec. 329; Westmeath v. Westmeath, 2 Hag. Ec. Supp. 1, 4 Eng. Ec. 238, 270; Kirk- man v. Kirkman, 1 Hag. Con. 409, 4 Eng. Ec. 438; Holden v. Holden, 1 Hag: Con. 458, 4 Eng. Ec. 452, 454; Otway v. Otway, 2 Phillim. 95, 1 Eng. Ec. 200; Ayl. Parer. 228; Stephens v. Totty, Cro. Eliz. 908; Houliston v. Smyth, 2 Car. & P. 22, 29. ® Carpenter v.,Carpenter, Milward, 159; ante, § 464, note. * 1 Fras. Dom. Rel. 454; Maclelland v. Fulton, cited Ferg. Consist. Law, 185. 5 Rhame v. Rhame, 1 McCord Ch. 197; Mason v. Mason, 1 Edw. Ch. 278; Harratt v. Harratt, 7 N. H. 196; Butler v. Butler, 1 Parsons, 329; Jelineau v. Jelineau, 2 Des. 45; Graecen x. Graecen, 1 Green Ch. 459; Breinig v. Meitzler, 11 Harris, Pa. 156; Hughes v. Hughes, 19 Ala. 307. ° Ante, § 460. ’ 7” Ayl. Parer. 228. And see Stephens v. Totty, Cro. Eliz. 908. [ 439 ] § 468 SPECIFIC GROUNDS OF DIVORCE. [Boox v. has observed, “they carry with them something of additional strength if they raise apprehension in others, for that shows the wife was not alarmed upon any unreasonable grounds.” } § 467. Already we have seen,? that, as a matter of correct legal principle, aside from special adjudication, the appre- hended harm need not be bodily harm, but may be mental. Still, supposing it must be bodily, and remembering how intimately the body sympathizes with the mind, how sorrow of soul often works sickness in the physical nature, and how other passions sometimes deprive the body of its life, —we find presented to us the question, whether conduct addressed primarily to the mind, yet tending thus to bodily injury, is legal cruelty. A statute of Kentucky having authorized the courts to divorce the husband from his wife, “where his treatment of her is so cruel and barbarous and inhuman as actually to endanger her life;” it was held, that a case is not within this statute, unless there is an injury to the body, intended or inflicted, dangerous to life; and that conduct which in its consequences may shorten life by producing a settled melancholy; or any other treatment, however cruel or inhuman, which operates primarily on the mind, — is inad- equate. The court add: “ We cannot with sufficient cer- tainty ascertain the operation of particular acts upon the mind, and then trace the influence of the mind upon the body, in producing disease and death, to begin investigations of the kind without positive command by legislative authority.” 3 § 468. On the other hand, the Court of Common Pleas of Pennsylvania, in a recent case, much considered, used. the following language: “ A husband may, by a course of humili- ating insults and annoyances, practised in the various forms which ingenious malice could readily devise, eventually de- stroy the life or health of his wife, although such conduct 1 D’Aguilar v. D’ Aguilar, supra; Hollister v. Hollister, 6 Barr, 449, 4538. 2 Ante, § 4614. 3 Thornberry v. Thornberry, 2 J. J. Marshall, 322. [ 440 ] CHAP. XxIII.] CRUELTY. ~ § 468 may be unaccompanied by violence, positive or threatened. Would the wife have no remedy, in such circumstances, under our divorce laws, because actual or threatened personal vio- lence formed no element in such cruelty? The answer to this question seems free from difficulty, when the subject is considered with reference to the principles on which the di- vorce for cruelty is predicated. The courts intervene to dis- solve the marriage bond under this. head, for the conservation of the life or health of the wife, endangered by the treatment of the husband. The cruelty is judged from its effects; not solely from the means by which those effects are produced. To hold absolutely, that, if a husband avoids positive or threatened personal violence, the wife has no legal protection against any means short of these -which. he may resort to, and which may destroy her life or health, is to. invite such a system of infliction, by the indemnity given the wrongdoer. The more rational application of the doctrine of cruelty is, to consider a course of marital unkindness, with reference to the effect it must necessarily produce on the life or health of the wife; and, if it has been such as to injure either, to re- gard it as true legal cruelty. This doctrine seems to have been in the view of Sir H. Jenner Fust, in Dysart v. Dysart, where he states, as his deduction from what Sir William Scott ruled in Evans v. Evans? that, “if austerity of temper, petulance of manner, rudeness of language, a want of civil attention, occasional sallies of passion, do threaten bodily harm, they amount to legal cruelty.”® This idea, expressed axiomatically, would be no less than the assertion of this prin- ciple; that, whatever form marital ill-treatment assumes, if a continuity of it involves the life or health of the wife, it is legal cruelty.”* In an English case, ill-nature, violent pas- 1 Dysart v. Dysart, 11 Jur. 490, 492. * Evans v. Evans, 1 Hag. Con. 35, 4 Eng. Ec. 310,311; ante, § 454, note. 8 This observation, which is found in the Jurist report, does not occur in the report of the same case by Robertson, vol. 1, p. 470, 473 et seq.; an omission, doubtless, of the latter reporter. * Butler v. Butler, 1 Parsons, 329, 334, opinion by King, President J. [441 ] § 469 SPECIFIC GROUNDS OF DIVORCE. [Book v. sion, and frequent abuse of the wife from the time of the marriage, were proved against the husband; he had fright- ened her, so as to occasion several fits of illness; he had re- fused her medical assistance; in short, he had been a bad hus- band, but he had not beat her. Several instances of adultery were proved; but the facts were held to constitute cruelty also, and a divorce was pronounced on both grounds. Yet in,a still later English case, Dr. Lushington strongly expressed the opinion, that abuse which operates on the mind, aud thus produces ill health, is not legal cruelty? § 468 a. On this point also, if we examine it in the light of principle, we shall be led distinctly to the conclusion, that the conduct under consideration may be legal cruelty. Suppose the body is the only thing to be considered in these cases, yet, if we find various avenues to it, through any one of which may run the waters to drown its life or its health, — surely we cannot say, that the approaches through one avenue shall be left open by the law, while the others are closed. In point of proof, there may be difficulty oftentimes in satisfying the judge affirmatively, that bodily danger does exist from the approaches through the avenue of the mind; and, where a woman cannot make out her case, she must suffer the conse- quences of her failure; yet cruel would it be in the judge to refuse her, therefore, when she does make out her case. § 469. In determining whether the conduct of the husband sufficiently imports bodily harm, we are not to look solely at the motive whence it proceeds. “It may be from turbu- lent passion, or sometimes from causes which are not incon- sistent with affection,3 and are indeed often connected with s 1 Robinson v. Robinson, cited 2 Phillim. 96. * “ Such consequences, to be the subject of legal redress, must emanate from bodily ill-treatment, or threats of the same. Such I apprehend to be the clear line of distinction between all the authorities.” C.v. C. 28 Eng. L. & Eq. 603, 605. And see ante, § 459, note. 5 See Westmeath v. Westmeath, 2 Hag. Ec. Supp. 1, 4 Eng. Ec. 288. [ 442] CHAP. XXIII. }: . CRUELTY. § 469 it; as the passion of jealousy! If bitter waters are flowing, it is not necessary to inquire from what source they spring. If the passions of the husband are so much out of his control, as -that it is inconsistent with the personal safety.of the wife to continue in his society, it is immaterial from what provo- cation such violence originated.”* Thus, while the mere act of drunkenness, however often repeated, is not cruelty, yet violent and outrageous conduct of a husband, when drunk, toward his wife, endangering her safety, is cruelty, though perfectly consistent with affection during his sober moments.* And in Westmeath v. Westmeath, where Sir John Nicholl granted the divorce, he observed: “The cruelty imputed is not that of cold malignity, or savage, continual, unfeeling brutality of disposition ; it is not that of satiated possession, producing disgust and hatred; the acts charged are not incon- sistent with occasional kindness, with the existence and con- tinuance of strong attachment, nay, even with violent affec- tion; but the main features of the alleged cruelty are great 1 « Jealousy is a passion producing effects as violent as any other passion, and there will be the same necessity to provide for the safety and comfort of the individual. If that safety is endangered by violent and disorderly affec- tions of the mind, it is the same in its effects as if it proceeded from mere malignity alone.” Lord Stowell, in Kirkman v. Kirkman, 1 Hag. Con. 409, 4 Eng. Ec. 438. * Lord Stowell, in Holden v. Holden, 1 Hag. Con. 453, 4 Eng. Ec. 452, 454. “If I were satisfied, that conduct dangerous in itself arose from morbid feelings out of the control of the [defendant] husband, I must act, if the danger exist.” Dr. Lushington, in Dysart v. Dysart, 1 Robertson, 106, 116. ® Waskam v. Waskam, 31 Missis. 154. In a Texas case, however, Hemp- hill, C. J., observed: “Such drunkenness as totally or in a great degree disqualified the husband to discharge his marital duties or obligations; such, for instance, as would compel the wife, as in this instance, to leave the husband ; would be a degree of cruelty in itself, and which, if continued for a length of time, say three years in analogy to the time prescribed by the statute for abandonment, would amount in law to a cause for divorce.” Camp v. Camp, 18 Texas, 528. * Lockridge v. Lockridge, 3 Dana, 28; Mason v. Mason, 1 Edw. Ch. 278%; Boggess v. Boggess, 4 Dana, 307; Hughes v. Hughes, 19 Ala. 307; Bowic v. Bowie, 3 Md. Ch. 51. [443] § 470 SPECIFIC GROUNDS OF DIVORCE. [BooK v. irritability of temper, producing ungovernable passion, ending occasionally in acts of personal violence, and, of course, at- tended with the danger of a repetition of personal mischief.” } But a mere unintentional act, though occasioning pain and injury, will not warrant a sentence of divorce; because it does not imply future risk.2 So violence inflicted in a mutual contest is no cause for the interference of the court;? but here is involved also another principle, to be presently dis- cussed ; namely, that the complaining party must be without great blame. § 470. The kind of violence, where violence is used, is im- material. In this respect, no difference exists between a blow, a push, or any other force. So it is cruelty in a husband to confine his wife; or knowingly to deprive her of needful air;® or to starve her; or, having the means, to refuse her what are termed the necessaries, not the mere luxuries, of life;® or to withhold medical assistance in sickness, while he is able to provide it;’ or knowingly to communicate venereal disease 1 Westmeath v. Westmeath, 2 Hag. Ec. Supp. 1, 4 Eng. Ec. 238, 272. In - Shaw v. Shaw, 17 Conn. 189, 195, the Supreme Court of Connecticut say, that the doctrine of the motive immaterial applies to “cases of violence where the natural consequence would be injurious or dangerous, and where the act therefore was unlawful;” but not where the act is itself lawful, and under ordinary circumstances not hurtful. * Neeld v. Necld, 4 Hag. Ec. 263, 270. In Oliver v. Oliver, 1 Hag. Con. 361, 4 Ing. Ec. 429, 433, 434, the wife refused to deliver up to her husband some keys, to the possession of which he was entitled, and he undertook to take them from her. In the scufile, she went against the wall, and bruised her arm and breast. It was held not to be sufficient cause for a divorce. * Rumball v. Rumball, Poynter Mar. & Div. 237, note; Dysart v. Dysart, 1 Robertson, 106, 123. * Dysart v. Dysart, 1 Robertson, 106, 125; Saunders v. Saunders, 1 Rob- ertson, 549, 560. ° Evans v. Evans, 1 Hag. Con. 35, 4 Eng. Ee. 810, 326, 327. ° Butler v. Butler, 1 Parsons, 329. And see Evans v. Evans, supra, 4 Eng. Ee. 350, 351. 7 Evans v. Evans, supra, 4 Eng, Ec. 851. “ The denial of necessaries and comforts, even of medical assistance, where there are no pecuniary resources, [444] CHAP. XXIII.] CRUELTY. § 471 to her, though there must be clear evidence he meant its com- munication. It is not enough fora man to marry while ve- nereal disease is on him, and thereby endanger his wife, if in fact it is not taken by her? This last point, however, may be a little doubtful viewed otherwise than as one of evidence; for, if really there is danger, the wife should not be compelled to cohabit; yet, if the marriage was without apprehension in the husband’s mind, and if on learning the danger he should forbear to do what might communicate the disease, plainly, in principle, no divorce should be granted. In like manner, the wilful communication of the itch is an act of cruelty, though perhaps not sufficient alone.® A husband’s attempt, when infected with venereal disease, to force his wife to his bed, has been said to be of a mixed nature, partly cruelty, partly evidence of adultery. If he undertakes to debauch his own woman servant, it is an act of cruelty, “ perhaps,” ob- serves Lord Stowell, “not alone sufficient to divorce; but which might weigh, in conjunction with others, as an act of considerable indignity and outrage on his wife’s feelings. The attempt to make a brothel of his own house was brutal con- duct, of which the wife had a right to complain.” 4 § 471. And where a husband, for the purpose of harassing his wife, ill treats a child® or other relative of hers, this is cruelty to her; though perhaps not alone sufficient. Dr. Lushington says: “An act of cruelty on the part of a father to a daughter is not necessarily cruelty towards the mother; never can be construed into acts of cruelty ; but no one could, I think, en- tertain a reasonable doubt, that such a denial, when the fortune was ample, might probably, under circumstances, be considered differently.” Dr. Lush- ington, in Dysart v. Dysart, 1 Robertson, 106, 111. 1 Collett v. Collett, 1 Curt. Ec. 678; Long v. Long, 2 Hawks, 189. 2 Ciocci v. Ciocci, 26 Eng. L. & Eq. 604. 3 C. v. C. 28 Eng. L. & Eq. 603, 606. * Popkin v. Popkin, 1 Hag. Ec. 765, note, 3 Eng. Ec. 325. 5 Bramwell v. Bramwell, 3 Hag. Ec. 618, 5 Eng. Ec. 232, 242. See C. v. C. 28 Eng. L. & Eq. 603, 608. 6 Saunders v. Saunders, 10 Jur. 143. 38 [ 445 ] § 472 SPECIFIC GROUNDS OF DIVORCE. [Book v. although it may amount, in certain circumstances, in the eye of the law, to such. The father may be guilty of the greatest cruelty to his children, and yet be guiltless in respect to his wife; or he may be guilty of far less cruelty to his children, and this less degree of cruelty in regard to the children will make him criminal towards his wife.” The test seems to be, whether the cruelty was practised on the child for the purpose of annoying the mother. § 472. There is a case in which, the husband being com- plainant against the wife for her cruelty, he pleaded, “that she had damaged a valuable grand piano-forte by striking it repeatedly upon the keys;” and the court rejected the allega- tion, observing, “that such conduct might not unfairly be considered as cruelty to her husband, being a wanton abuse of his property; but that it did not think it quite sufficient to plead a single act of that kind, done in a moment of pas- sion.”? In a wife’s suit, Dr. Lushington declined to receive her allegation, that her brother gave her a favorite pony, suit- able for her to drive, she having been recommended to drive out for her health; but that her husband, to annoy her, him- self drove the pony, though he had horses of his own standing idle, until he spoiled the animal from bad treatment; then gave it, together with £10 her mother had made her a present of, in exchange for another pony; and, lastly, sold this pony, and pocketed the money, and forbade her the use of his own horses. The judge observed, that, “if any fact were proved, it could have no effect upon the court, which can never attend to quarrels of this sort.” § 1 Wallscourt v. Wallscourt, 11 Jur. 134; Perry v. Perry, 1 Barb. Ch. 516. In Tourné v. Tourné, 9 La. 452, it was held, that the father’s partial treat- ment of one df the children, and the child’s disobedience toward the mother, supposed to result from his encouragement, are not sufficient ground for a sep- aration. * Kirkman v. Kirkman, 1 Hag. Con. 409. § Saunders v. Saunders, 10 Jur. 143, 144. See also D’Aguilar v. D’Agui- lar, 1 Hag. Ec. 773, note, 3 Eng. Ec. 329, 331. See ante, § 462, 463 ; post, § 475 [446] CHAP. XXIII. ] CRUELTY. § 474 § 473. Wilful'and malicious desertion is not alone cru- elty ; but, “in conjunction with other acts, it frequently is” sufficient.’ . A fortiori, it is not cruelty for the husband to take a separate bed.2. In Scotland, the positive wrong of turning a wife out of doors, authorizes a judicial separation for cruelty ; but, concerning the mere negative injury of de- serting her, the Scotch law appears not to be settled, though Erskine deems even this sufficient. § 474. Unnatural practices, termed in the criminal law sodomy, buggery, &c.,4 are in England ground of divorce from bed and board. The reason why they are does not fully appear in the reports; they may perhaps be deemed a species of adultery ; probably they are to be looked upon as approaching quite as near to the legal cruelty. And a mere unsuccessful attempt at such practices is sufficient, though an attempt to commit adultery is not. Where a wife pleaded general ill-treatment in one article of her libel; and pleaded in another article a conviction of her husband, in a criminal court, for assaulting his apprentice lad, and lewdly, wantonly, and wickedly pressing, &c., this lad, and endeavoring to per- suade him to-permit indecent liberties with his person; Sir. John Nicholl admitted the libel, and afterward granted the divorce. “He observed: “The case laid, as a whole, does amount, in my judgment, to that per quod consortium amitti- tur. Could the courtsend the wife home to such a husband? He refuses her access to his person— he resorts to abomina- ble practices, cruelty itself, independent of that other charged.” ® In another case, an allegation was admitted, responsive to the 1 Evans v. Evans, 1 Hag. Con. 35, 120, 4 Eng. Ec. 310, 349; Sullivan v. * Sullivan, 2 Add. Ec. 299, 2 Eng. Ec. 314; ante, § 462. * D’Aguilar v. D’Aguilar, 1 Hag. Ec. 773, 774, note, 3 Eng. Ec. 329, 331 ; Orme v. Orme, 2 Add. Ec. 382, 2 Eng. Ec. 354. 3 1 Fras. Dom. Rel. 458. See also Jones v. Jones, Wright, 155. * See 1 Bishop Crim. Law, § 380; 2 ib. § 1027 et seq. 5 Mogg v. Mogg, 2 Add. Ec. 292, 2 Eng. Ec. 811. See also Bromley v. Bromley, and Ellenthorpe v. Myers, 2 Add. Ec. 158, note, 2 Eng. Ec. 260, 261; ante, § 446. [447] § 475 SPECIFIC GROUNDS OF DIVORCE. [BooK Vv. husband’s suit for the restitution of conjugal rights, charging him with unnatural practices toward his wife. On the hear- ing, the evidence upon this allegation failed.1 That such prac- tices are deemed in England to be a heavier offence against the marriage than even adultery, appears from Stat. 20 & 21 Vict. c. 85, § 27,2 which, while allowing to the wife a divorce a vinculo from her husband for his adultery only when com- mitted under aggravated circumstances, permits this divorce to her in all cases of his “sodomy or bestiality.” In the Uni- ted States are no statutes mentioning this offence, as being an offence against the marriage. Whether its commission would be deemed to be either cruelty or adultery with us, is a ques- tion undecided. § 475. The amount of cruel treatment, the extent of dan- ger to life or limb or health, authorizing a divorce for cruelty, is often a question of discussion ; but its solution depends on a variety of circumstances and considerations. Chancellor Kenit observes of this matter: “ Though a personal assault and battery, or a just apprehension of bodily hurt, may be ground for this species of divorce, yet it must be obvious to every man of reflection, that much caution and discrimination ought to be used on this subject. The slightest assault or touch, in anger, would not surely, in ordinary cases, justify such a grave and momentous decision. Pothier says? that a blow or stroke of the hand would.not be a cause for separa- tion under all circumstances, unless it was often repeated. The judge, he says, ought to consider if it was for no cause, or for a trivial one, that the husband was led to this excess ; or if it was the result of provoking language on the part of 1 Geils v. Geils, 6 Notes Cas. 101. The wife pleaded, that “ she suffered, or submitted to, such treatment.” “Tenendum est sodomiam sufficere ad divortium. Quia sodomia est gravius delictum adulterio. Si ergo ob adul- terium permittitur divortium; idem a fortiori dicendum erit de sodomia.” Sanchez, lib. 10, disp. 4, § 8. 2 See ante, § 416. 3 Traite foe de Marriage, § 509. CHAP, XXIII. ] CRUELTY. § 476 the wife, pushing his patience to extremity. He ought to consider, whether the violence was a solitary instance, and the parties had previously lived in harmony. All these cir- cumstances will, no doubt, haye due weight in regulating the judgment of the court.” 1 § 476. Sir John Nicholl says: * What must be the extent of injury, or what will reasonably excite the apprehension, will depend upon the circumstances of each case. So, like- wise, what may aggravate the character of ill-treatment must be deduced from various considerations-——in some degree from the station of the parties —in some degree from the condition of the person suffering at thetime of the infliction. The complexion of individual acts may be heightened; nay, the acts may almost change their very essence, by the accom- paniments. Not only particular stations and situations, and the feelings almost necessarily arising out of them, but even acquired feelings, may be entitled to some attention. In Evans v. Evans, Lord Stowell’s remarks establish, that what wounds not the natural, but the acquired feelings, will not absolutely be excluded by the court when stated merely asa matter of aggravation. A fortiori, then, feelings which naturally belong to a wife or to a mother of every station constitute a part of the consideration. . . . . A blow be- tween parties in the lower conditions, and in the highest sta- tions of life, bears a very different aspect. Among the lower classes, blows sometimes pass between married couples, who, in the main, are very happy and have no desire to part; amidst very coarse habits, such incidents occur almost as freely as rude or reproachful words; a word and a blow go together. Still, even among the very lowest classes, there is generally a feeling of something unmanly in striking a woman; but, if a gentleman, a person of education, the discipline of which emollit mores, and tends to extinguish 1 Barrere v. Barrere, 4 Johns. Ch. 187, 2 Evans v. Evans, 1 Hag. Con. 35, 38, 4 Eng. Ec. 310, 311. 38 * [449 J § 477 SPECIFIC GROUNDS OF DIVORCE. [BOOK v. ferocity; if a nobleman of high rank and ancient family uses personal violence to his wife, his equal in rank, the choice of his affection, the friend of his bosom, the mother of his off- spring, —such conduct, in such a person, carries with it something so degrading to the husband, and so insulting and mortifying to the wife, as to render the injury itself far more severe and insupportable. The particular situation of the parties when the ill-treatment is inflicted may create a still further aggravation.”1 Thus the husband’s cruelty is aggra- vated by the woman’s being in pregnancy.? So also, by her being of advanced age; for “there may be relative cruelty, and what is tolerable by one may not be by another.” ® § 477. But too great weight should not be given to con- siderations of rank and condition. Therefore in New York, on a suit against the husband, Parker, J., observed: “It is said, his grossly indecent language, spoken to and of his wife, is to find palliation if not excuse in the fact, that the parties moved in a circle of life less refined than others who have enjoyed the advantages of a more cultivated society. But I deny the application of the rule to a case like this. The decencies of life belong equally to all classes; and in none are they more carefully cultivated, and more faithfully observed, than among the respectable farmers of our country. The human heart is the same in every grade of society. From it flows, in the humblest as well as highest walk of life, the same current of affection that surrounds the domestic hearth with gentle conduct and kind influences. Delicacy of feel- ing belongs as well to the cottage as to the statelier mansion. The mind may be cultivated by study, and the manners polished by refined association; but the natural affections of ? Westmeath v. Westmeath, 2 Hag. Ec. Supp. 1,4 Eng. Ec. 238, 271. And see David ». David, 27 Ala. 222. * Westmeath v. Westmeath, supra, 4 Eng. Ec. 294; Evans v. Evans, 1 Hag. Con. 35, 4 Eng. Ec. 310, 830; Fleytas v. Pigneguy, 9 La. 419. See Dysart v. Dysart, 1 Robertson, 106, 109. ’ D’Aguilar v. D’Aguilar, 1 Hag. Ec. 773, 3 Eng. Ec. 329, 335. [ 450 J CHAP. XXIII] CRUELTY. § 479 the heart are rarely improved by contact with the world. In their native purity they recoil at any exhibition of indecency either in word or deed. Want of cultivation may excuse an unrefined, or even coarse, expression; but it forms not the slightest apology for indecent conduct, or obscene language.” ! § 478. The causes of complaint must be grave and weighty2 “ Mere turbulence of temper, petulance of man- ners, infirmity of body or mind, are not numbered amongst those causes. When they occur, their effects are to be sub- dued by management, if possible, or submitted to with pa- tience; for the engagement was to take for better, for worse ; and, painful as the performance of this duty may be, painful as it certainly is in many instances, which exhibit a great deal of the misery that clouds human life, it must be attempted to be sweetened by the consciousness of its being a duty, and a duty of the very first class and importance.” 3 § 479. On the other hand, the case need not be an aggra- vated one, of constant, deliberate, and brutal ill-usage. If, from irritability of temper, the husband has occasionally lost command over himself; and, under the sway of passion, has done acts of violence toward his wife, under circumstances leading to the presumption they will be repeated, though seldom; the divorce may be granted. Says Lord Stowell : “ The law does not require, that there should be many acts. The court has expressed an indisposition to interfere on ac- count of one slight act, particularly between persons who have been under long cohabitation ; because, if only one such instance of ill-treatment, and that of a slight kind, occurs in many years, it may be hoped and presumed that it will not 1 Whispell v. Whispell, 4 Barb. 217. ? Mason v. Mason, 1 Edw. Ch. 278; Coles v. Coles, 2 Md. Ch. 341; ante, § 457. ® Lord Stowell, in Evans v. Evans, 1 Hag. Con. 35, 4 Eng. Ec. 310, 349. * Lockwood v. Lockwood, 2 Curt. Ec. 281, 7 Eng. Ec. 114, 125; Dysart v. Dysart, 1 Robertsgn, 106, 121, 470, 533, 540. [451 ] § 481 SPECIFIC GROUNDS OF DIVORCE. [BOOK v. be repeated.!_ But it is only on this supposition that the court forbears to interpose its protection, even in the case of a sin- gle act; because, if one act should be of that description which should induce the court to think that it is likely to oc- cur again, and to occur with real suffering, there is no rule that should restrain it from considering that to be fully suffi- cient to authorize its interference.” 2 § 480. Indeed, that a single act of violence may, under cir- cumstances, be sufficient, results necessarily from the court’s interfering in a proper case, where no violence at all, or oth- er physical injury, has been inflicted.2 And these propositions are but deductions from the genera] one, that the divorce for cruelty is allowed rather to prevent danger apprehended, than to punish what is already donet Thence it follows also, that “all the circumstances together must be taken into consider- ation ; for the question is not, whether this or that fact alleged would render it the duty of the court to pronounce for a sepa- ration, but whether all the facts combined ought to lead to that result.” 6 § 481. An assault or stroke, a slap or slaps, with the hand, in a single instance, occasional petulance of temper, rudeness of language, sallies of passion, not threatening bodily harm, or endangering health or safety, have been considered insuffi- cient. So where husband and wife lived unhappily together, 1 s.p. Fleytas v. Pigneguy, 9 La. 419. In Graecen v. Graecen, 1 Green Ch. 459, the Chancellor was of opinion, that isolated acts of long standing should not entitle the wife to a divorce, especially if the later conduct of the husband has been of ‘a different character; yet evidence of the earlier acts may be received in connection with evidence of more recent ones, to show a series of wrongs and injuries. * Holden v. Holden, 1 Hag. Con. 458, 4 Eng. Ec. 452, 454; French v. French, 4 Mass. 587. 3 Ante, § 465, 466. 4 Ante, § 456. ‘ Dr. Lushington, in Saunders v. Saunders, 1 Robertson, 549, 556. 6 Finley v. Finley, 9 Dana, 52. [ 452 ] CHAP. XXIII.] CRUELTY. § 482 and sometimes cursed each other with the tongue; and the husband once went so far as to push her out of doors, without harming her, in a mutual quarrel,! the evidence not showing which was to blame, her prayer for divorce was refused.? But throwing a bucket of water on the wife’s head, with a threat of further violence if she did not leave the house, was held to be a sufficient act of cruelty, in a case where there was gen- eral unkindness of deportment and language? So is spitting in the wife’s face a gross act of cruelty; and it seems to be sufficient of itself, though this is not quite clear No doubt, like all other acts, it receives color from the general temper of the parties, and the circumstances under which it is inflicted. § 482. Sir John Nicholl, in one case, observed: “ Cruelty, in my judgment, is proved. Here is violence, preceded by deliberate insult and injury. The sending away her horses, and putting them up to sale, while she was at church” (they were her separate property), “the forcibly carrying her and confining her to her room; afterwards attempting forcibly to carry her back to her hice of confinement; the forming an adulterous connection with her maid; the keeping that ser- vant in the house, notwithstanding the remonstrances of his wife and her friends; the deposing his wife from the man- agement of his family, and vesting it in this prostitute — such circumstances have always been held by the court, not merely as acts of adultery, but as connected with cruelty. In addi- tion to this, there is his conduct respecting the child” (whom he took from her and compelled to sleep in the room with himself and the prostitute), “notwithstanding the pretext of parental rights, the exercise of which courts of justice will not be disposed to scan too nicely; yet here it was done, as has been shown, merely to distress his wife— this is marital 1 Ante, § 469. 2 Cooper v. Cooper, 10 La. 249. 3 Moyler v. Moyler, 11 Ala. 620. * Cloborn’s case, Hetley, 149; D’Aguilar v. D’ Aguilar, 1 Hag. Ec. 773, 777, 3 Eng. Ec. 329, 831; Shandary's. Saunders, 1 Robertson, 549, 561. [ 453 ] § 484.4 SPECIFIC GROUNDS OF DIVORCE. [Boox v. tyranny —it is as clear an act of deliberate and unmanly cruelty as can be committed.” 1 § 483. In a Tennessee case the court, granting a divorce to the wife, described the conduct of the husband thus: “ He is in the habit of using language to her which a gentleman will not employ to his slave; he threatens to drive her from his house; he slaps her, and, at the family altar, in her presence, he prays God to deliver him from her.” The parties were both members of the Methodist Episcopal Church; and the prayer the defendant admitted and justified as being right. The court regarded it, if intended only for her ear, as the greatest abuse of all; but, if it were serious, there was danger his hands would execute what his heart desired. § 484. In Mississippi, divorces from bed and board are al- lowed only in cases of cruelty; while, for adultery and deser- tion, the divorce is from the bond of matrimony.? There, on a bill by the wife, praying for the divorce from bed and board, no evidence was produced of any threats or blows, but only of the husband’s dislike of her; he was a wicked and aban- doned creature; he married her for her money, and, after get- ting it, deserted her, and lived in adultery with another wo- man. She was miserably clad when he turned her off, and he neglected to provide for her afterward. The divorce was granted in accordance with her prayer.4 : § 484.4. Practitioners and judges may derive help from the statements of cases and observations of courts contained in the foregoing sections. Yet it will be only help which they 1 Smith v. Smith, 2 Phillim. 207, 1 Eng. Ec. 232, 234, ? Payne v. Payne, 4 Humph. 500. See also Clutch v. Clutch, Saxton, 474. In Jones v. Jones, Wright, 244, and Beatty v. Beatty, Wright, 557, the facts were clearly sufficient, and much more. And see the case of Atkins v. At- kins, reported ante, § 465, note. 3 Wutchinson’s Code, 495, 496; Holmes v. Holmes, Walk. Missis. 474. * Pulliam v. Pulliam, 1 Freeman, Missis. 348. See also ante, § 471. [ 454 ] CHAP. XXIII. ] CRUELTY. § 485 will receive; the facts of cases differ; the circumstances of parties differ; the law therefore must be newly applied to each case coming to decision. And indeed perfect uniform- ity of decision, desirable as it is, cannot be expected on this subject. Judges are men; men are fallible; fallible men see things differently. ‘Il. The Relative Rights and Duties of Husband and Wife. § 485. In considering questions of cruelty, we sometimes are called to consider the relative rights and duties of hus- band and wife. The husband is legally intrusted, not only with a certain degree of care and protection,! but also, in the language of Lord Stowell, “with authority, over his wife. He is to practise tenderness and affection, and obedience is her duty.”2_ By the old law of England, he might give her “ moderate correction ;” a privilege which, in later times, has been questioned, even in that country.2 The Supreme Court of Mississippi appear to approve of the old rule; yet they well observe, that a husband should “confine himself within reasonable bounds, when he thinks proper to chastise his wife.”* But this old rule has met with little or no favor else- where in the United States; and it is repudiated in Ireland 6 and Scotland.’ The importance of this question, in its appli- ’ 1 Ante, § 342. ? Oliver v. Oliver, 1 Hag. Con. 361, 4 Eng. Ec. 429, 430. 3 1 Bl. Com. 444; Reeve Dom. Rel. 65. * Bradley, v. The State, Walk. Missis. 156, a. p. 1824. ® Reeve Dom. Rel. 65; Bac. Ab. Bouvier’s ed. tit. Bar. & Feme, B.; Bas- com v. Bascom, Wright, 632; Poor v. Poor, 8 N. H. 307, 313; Perry v. Perry, 2 Paige, 501, 503; The State of New Jersey v. Barnhard, Essex, Oyer and Terminer, 1849, Newark Daily Advertiser, 2 West. Law Jour. 801, Page on Div. 153, note; Atkins v. Atkins, ante, § 465, note; People v. Winters, 2 Parker, 10; James v. Commonwealth, 12 S. & R. 220, 226; The State v. Buckley, 2 Harring. Del. 552; Hurd on Habeas Corpus, 25; 1 Bishop Crim. Law, § 726. 6 Carpenter v. Carpenter, Milward, 159. 7 1 Fras. Dom. Rel. 241, 460. [455] § 486 SPECIFIC GROUNDS OF DIVORCE. [BooK Vv. cation to suits for divorce, does not appear to be great, when we consider, that, in any view of it, the husband would not be justified in beating his wife if she were free from blame ;? and that, if she were in fault, she would not ordinarily be en- titled to the divorce, though the blows were inflicted without right2 § 486. The husband has no general right to imprison his wife; “for? as the court in an old case observed, “she is entitled to all reasonable liberty, if her behavior is not very bad.”? Yet when, as was said also in the same case, according to another report of it, “the wife will make an undue use of her liberty, either by squandering away the husband’s estate, or going into lewd company ;* it is lawful for the husband, in order to preserve his honor and estate, to lay such a wife under restraint. But when nothing of that appears, he cannot justify the depriving her of her liberty.” ® A wife having absented herself from the husband’s house, without cause and without his knowledge or consent, he instituted a suit against her for the restitution of conjugal rights. She did not appear and answer to the suit, but absconded. Four years afterward he got her into his house by stratagem, and confined her in it; she declaring, that she would leave when she had the opportunity. The husband was held to be justified. If there is a separation between the parties, under articles of separation, the right of the husband to exercise personal restraint over the wife is at 1 Cochrane, re, 8 Dowl. P. C. 630. : ? Post, § 491-496. In Trowbridge v. Carlin, 12 La. Ann. 882, the divorce was denied, Cole, J., observing: ‘“‘ The [defendant] husband seems to have supported her [the wife’s] ebullitions of temper for a long time; until, be- coming wearied, he endeavored to correct her temper by corporeal punish- ment.” 3 Lister’s case, 8 Mod. 22. * The State v. Craton, 6 Ired. 164. * Rex v. Lister, 1 Stra. 477. And see Taylor v. Taylor, 2 Lee, 172, 6 Eng. Ec. 81. And see ante, § 470, and Atkins v. Atkins, ante, § 465, note. ° Cochrane, re, 8 Dowl. P. C. 630, Wadd. Dig. 154, note. [ 456 ] CHAP. XXIII. ] CRUELTY. § 486 a an end,!—a doctrine, however, hardly consistent with the English rule, that such articles will not bar the suit for the restitution of conjugal rights? § 486 a. Concerning this right of personal constraint upon the wife, however, little can be said with confidence of its being the prevailing law in this country. Our reports con- tain almost no decisions on the subject; and the English, are barren. Divorces for desertion were not known in Eng- land when we imported the English law into this country; but, in this law then and now, the right of the husband to sue for “restitution of conjugal rights,” as it is called, exists; though no tribunal has ever been authorized to entertain this suit here, and we may well doubt, whether this branch of the English systern can be deemed in any sense law with us, even dormant law. Perhaps, then, the English doctrine of the right of the husband to restrain, in special circumstances, the wife of her liberty, does not prevail with us generally ; though, of course, he could lawfully defend himself from her assaults, arrest her for her crimes, and so on, to the same ex- tent as if he were not married to her; and perhaps, under very peculiar circumstances, could also protect himself, by such means, from wrongs she might commit against him, growing out of the matrimonial relation. There is, in this country, where the ancient chivalry never literally prevailed, an increasing tendency in the law to look upon woman as a being possessed of a human soul, like man; accountable, also, like him, to a higher Power. And if the wife, with us, should desert her husband, or should behave herself otherwise improperly, there is over her the same law as over her hus- band, in like circumstances. And our courts might well hesitate, while the common law authorities are few and not very pertinent to our situation, to permit the husband to ex- ercise over her either the physical control which the officers 1 Rex v. Mead, 1 Bur. 542; Vane’s case, 138 East, 172, note, 1 W. BI. 18; Hurd on Habeas Corpus, 34. * Post, § 529. 39 [ 457] § 488 SPECIFIC GROUNDS OF DIVORCE. [Book v. of the law may sometimes exercise, or the higher control which only the Supreme Being is permitted here to have over the husband. § 487. The wife should conform to the habits and tastes of her husband ; so she cannot ordinarily complain of his pecu- ‘liarities and eccentricities. Yet there is a limit to her obli- gation in this respect; for, if he has whims and caprices which operate in a way to endanger her health, she need not yield to them, but she may make them the ground of a suit for divorce.1 Though it is an act of great unkindness, and unreasonable oppression, in a husband, to forbid his wife to attend a particular church, of which she is a member ;? or to interdict all intercourse with her family ;* or to prevent her from paying a visit to his own relations;* yet conduct like this is not alone a sufficient cause of divorce. Under circum- stances it may tend to illustrate the temper of the husband; and his legal right may be enforced in an illegal manner. In Waring v: Waring the wife pleaded, that the husband had forbidden her to hold intercourse with her own family; and Lord Stowell, “not without hesitation,” admitted the article, ‘observing: “There may be circumstances that will justify that prohibition. And the court could ill judge of the rea- sonableness of such an injunction. Though the wife may be very amiable, her connections may not be so, and there may be many reasons which would justify such exclusion.” 5 § 488. So from the legal relation of husband and wife results the doctrine, that the former may take into his own hands the management of his household ; and, if he does, and 1 Dysart v. Dysart, 1 Robertson, 470, 472, 512. See Evans v. Evans, 1 Hag. Con. 35, 4 Eng. Ec. 310, 349; ante, § 469. * Lawrence v. Lawrence, 3 Paige, 267. 3 Neeld v. Neeld, 4 Hag. Ec. 263, 269. * D’Aguilar v. D’ Aguilar, 1 Hag. Ec. 773, 3 Eng. Ec. 829, 386. 5 Waring v. Waring, 2? Hag. Con. 153, 159, 2 Phillim. 132, 1 Eng. Ec. 210, 213. And see Shaw v. Shaw, 17 Conn. 189, 195. [ 458 J CHAP. XXIII. ] CRUELTY. § 489 publicly inhibits his wife, this alone will not be cruelty for which a divorce will be granted; though it may be shown as aggravating acts of cruelty proper. “I cannot,” says Lord Stowell, “call it cruelty if a gentleman chooses to settle his weekly bills himself; because I take it, that a wife acts in this respect, not by any original right, but as the steward and as the representative of her husband; and, if a man has but a moderate opinion of his wife’s management, and is vain enough to have a better of his own; if he does choose to take into his own hands the payment of the weekly bills, I protest it does appear to me to be that kind of conduct with which no magistrate, ecclesiastical or civil, has any right to inter- fere.” 1 § 489. The law gives the husband the right to have his wife occupy the same bed with himself. In a Connecticut case, are reported facts showing the husband to have exercised this right to a very questionable extent. The wife was in feeble health; he, well and jealous; and, besides inflicting much general abuse, he often compelled her into sexual inter- course with him, against her remonstrance and declaration that it injured her, at times when it was truly improper, unreasonable, and injurious to her health. On two occasions he even removed her by force from the bed of her daughter, to which she had retired, to his own bed. Her health being in jeopardy, and having actually suffered from this conduct, she left him, and brought her suit for divorce. The court found the facts to be as thus stated; also found, that, though she was in no danger of receiving other physical ill-treatment from him, “ she had just reason to fear he would compel her to’ occupy the same bed with him, regardless of the conse- quences to her‘health.” Upon these proofs the majority of the judges were of opinion, that she was not entitled to the divorce, so they refused it; because the act of sexual inter- } Evans v. Evans, 1 Hag. Con. 35, 115, 116,4 Eng. Ec. 310, 847; 1 Fras. Dom. Rel. 460. [ 459] § 490 SPECIFIC GROUNDS OF DIVORCE. [BooxK v. course between married persons is lawful in itself, and there was no evidence to charge him with knowledge of the injury he was inflicting upon her by it, except her own claim of suffering in health from this cause. Yet the court did not tell us how he was to be made acquainted with the injurious tendency of his conduct, when he refused to inform himself after warning; or how any wife can protect herself from the consequences of ungoverned lust, proceeding under cover of marital right. The better view is, that, in such a case, if the husband had ignorantly done wrong, and was willing to inform himself and correct his conduct, no divorce should be granted; since no danger would exist that future cohabita- tion would injure the wife. But if the husband was either wilfully ignorant, or wickedly obstinate, bis marital rights, giving him liberty to do what is not harmful to his wife, should not be extended to protect him in killing her by degrees.? IV. Cruelty by the Wife to the Husband. § 490. Though the complaint, in cases of cruelty, comes usually from the wife as the weaker party, yet the general law authorizes a divorce, on prayer of the husband, for her cruelty. In some of the American States, the right is by statute given to the wife alone Where the husband is complainant, “it is not,” in the language of Chancellor Wal- worth, “sufficient to show a single act of violence on her 1 Shaw v. Shaw, 17 Conn. 189; ante, § 469, note. 2 And see ante, § 469, 487. ® Furlonger v. Furlonger, 5 Notes Cas. 422; Kirkman v. Kirkman, 1 Hag. Con. 409; Waring v. Waring, 2 Phillim. 132, 1 Eng. Ec. 210; ante, § 454, note; Ayl. Parer 229; Oughton, tit. 193, § 18. ; * In New York, the act of April 10, 1824, § 12, authorized a divorce from bed and board on prayer of the husband, for the wife’s cruel treatment; but, in the Revised Statutes of 1830, this remedy was given to the wife only. By accident, however, the earlier statute was not expressly repealed; and so it was held to remain in force. Perry v. Perry, 2 Barb. Ch. 311; Perry v. Perry, 2 Paige, 501; Van Veghten v. Van Veghten, 4 Johns. Ch. 601. [460] CHAP. XXIII. ] CRUELTY. § 4904 part towards him, or even a series of such acts; so long as there is no reason to suppose, that he will not be able to pro- tect himself and family by a proper exercise of his marital power.” But the husband may “establish such a continued course of bad conduct on the part of the wife, towards him- self and those who are under his protection and care, as to satisfy the court that it is unsafe for him to cohabit or live with her.” And the Chancellor held, that the complaining husband might state, in his bill, acts of violence and miscon- duct toward his children, and other members of the family. Still, evidently the general principles of law must be the same whether the suit is promoted by the husband or the wife ; but, in the application of these as of all other principles, the relative rights and duties impgsed by the marriage must be considered; sometimes perhaps also, the relative physical strength and mental constitution and temperament of the parties.2 But the further consideration, that, except in a few States where statutes have changed the common law rule, the guilty wife can have no provision decreed by the court for her separate support, though her own property has vested in her husband, may sometimes prevail with a merciful judge. In view of this condition of things in New York, Chancellor Walworth said: “It must therefore be a very strong case, which will induce this court to grant a final separation, on application of the husband.”? Perhaps the court, however, might accomplish substantial justice in a particular case, by granting to the husband his divorce on condition of his re- storing a reasonable amount of property to the wife. § 490 a. No sufficient reason exists, why the divorce for cruelty should not be allowed to an injured husband, as well as to an injured wife. The facts of cases do indeed show, 1 Perry v. Perry, 1 Barb. Ch. 516; ante, § 471. * See ante, § 242, 342, 345, 367, 368, 411, 416, 485-489; Doyle »v. Doyle, 26 Misso. 545, 546. * Palmer v. Palmer, 1 Paige, 276. See also Sheffield v. Sheffield, 3 Texas, 79; Byrne v. Byrne, 3 Texas, 336. 39". [461 ] § 491 SPECIFIC GROUNDS OF DIVORCE. [BooK v. that less frequently has the stronger party occasion to com- plain than the weaker. But if we were to look at this ques- tion as merely referring to the physical strength of the parties, we should find numerous instances in which the advantage in strength is with the wife. Yet this is by no means the proper view of it. The safety, even the physical safety, of one in the marital relation, depends not on such one’s having greater physical power than the other, though we should admit the right to use this power. But we have seen,! that a husband is not justified in chastising his wife to make her obedient or good; also,? that his right to shut her up is questionable, at least, — how, then, when her conduct toward him puts him in peril, is he to right himself, if the suit for cruelty is denied? This inquiry will further suggest, that no great difference, after all, should be made by the courts in estimating a case of cruelty, whether the complaint comes from the husband or from the wife. If oftentimes she is found to be the more lov- able and amiable of the two, she surely is not always so. When she is not, but is even worse for being a female, the court pays no compliment to the sex by permitting this cir- cumstance to shield her from the consequences of unsexing herself. V. The Defences. § 491. In preceding chapters were discussed the several defences to suits for divorce. They are of course applicable in the suit for cruelty, as well as in other divorce suits. But the peculiar nature of this suit makes often relevant another defence, analogous somewhat to recrimination, yet not exactly recrimination. If what is complained of as cruelty is the result of the complainant’s own misconduct, it will not fur- nish ground for the proceeding. “The remedy is in her own power; she has only to change her conduct; otherwise the wife would have nothing to do but to misconduct herself, 1 Ante, § 485. 2 Ante, § 486, 486 a. [462] CHAP. XXIII.] CRUELTY. 4 492 provoke the ill-treatment, and then complain.”! But though the wife may have brought the evil on herself, the way of reform is open to her; and, if after she reforms the husband is guilty of cruelty, the court will then interpose? § 492. “Tf, however,” said Dr. Swaby, “it should appear that even misconduct on the wife’s part has produced a re- turn from the husband wholly unjustified by the provocation, and quite out of proportion to the offence, it might still be the duty of the court to interfere judicially, notwithstanding such wife’s positive misconduct.” Suppose, therefore, it were proved, as alleged in the case then before the court, that the husband had attempted to burn his wife alive; she might probably be entitled to a divorce, though herself guilty of gross tnisbehavior® And in Evans v. Evans, Lord Stowell said: “Of the character of Mrs, Evans, I shall say much less; for this reason, because it is much less connected with the issue in the cause; because if the facts imputed to Mr. Evans are false, there is an end of the question. On the con- trary, if they are true, they are of that nature and species, that they cannot be justified by any misconduct on the part of Mrs. Evans; for, though misconduct may authorize a hus- band in restraining a wife of her personal liberty, yet no mis- conduct of hers could authorize him in oceasioning a prema- ture delivery, or refusing her the use of common air. In every view therefore of the matter, Mrs. Evans’s character has noth- ing to do with the cause.”* And the Alabama court recently -granted a divorce to a wife who was to blame; because her 1 Waring v. Waring, 2 Phillim. 132, 133, 1 Eng. Ec. 210, 211; Moulton v. Moulton, 2 Barb. Ch. 309; Poor v. Poor, 8 N. H. 307; Anonymous, 4 Des. 94; Daiger v. Daiger, 2 Md. Ch. 335. And see Lalande v. Jore, 5 La. Ann. 82; Bedell v. Bedell, 1 Johns. Ch. 604; Devaismes v. Devaismes, 3 Code Reporter, 124, 3 Am. Law Journal, N. s. 279; post, § 526. * Waring v. Waring, supra; Best v. Best, 1 Add. Ec, 411, 423, 2 Eng. Ee. 158, 163. ; ® Best v. Best, 1 Add. Ec. 411, 423, 2 Eng. Ec. 158, 163, 164. * Evans v. Evans, 1 Hag. Con. 35, 4 Eng. Ec. 310, 316; s. p. Waring v. Waring, 2 Phillim. 132, 1 Eng, Ec. 210. [ 463 J § 494 SPECIFIC GROUNDS OF DIVORCE. [Book v. husband visited her ill-conduct with a greatly disproportionate degree of ill-conduct on his part.! § 493. In Westmeath v. Westmeath, is a passage from Sir John Nicholl, illustrating both this point and several others, thus: “ Besides the endurance of many privations during the severe winter of 1813-14, when in a state of advance preg- nacy, an act of personal violence occurs, which is thus de- posed to by Mackenzie, on the seventh article: ‘ About a month before Lady Westmeath’s confinement, Lord West- meath called deponent up about four o’clock one morning, to go to Lady Westmeath; when deponent went, Lady West- meath was lying in bed, and Lord Westmeath standing in his dressing-gound ; deponent asked Lady Westmeath if she was taken ill; she said no; but that Lord Delvin [the hus- band before he became Marquis of Westmeath] had been beat- ing her, and had kicked her in the side; and she complained of being in pain from it. Lord Westmeath then said, Emily, you provoked me to do it. Lady Westmeath looked at him, but said nothing to him; but asked deponent, why she had come. Deponent said, Lord Delvin had called her. Lady ‘Westmeath said, she might go to her own room again. Lord Westmeath appeared by his manner, when he called her, to be frightened.’ An admission of the truth of the charge is here, then, necessarily implied from his observation, ‘ You provoked me to do it.’ It is true, that, when he has done it, he himself is frightened and calls the maid; but he in effect admits that her statement is correct. How ungovernable must be the passions of a husband, who, scarcely a month before his wife’s confinement of her first child, can be hurried away to such an outrage; it requires no definition of cruelty to pronounce this to be an act of aggravated cruelty. * You provoked me to do it;’ no provocation could justify or palliate it.” 2 § 494. Yet observations like the foregoing are probably 1 King v. King, 28 Ala. 815. And see ante, § 485, note. * Westmeath v. Westmeath, 2 Hag. Ec. Supp. 1, 79, 4 Eng. Ec. 238, 274. [ 464 ] CHAP. XXIII. ] CRUELTY. § 494 applicable only when the facts are of a character similar to those which called-them forth;! for, when the ill-treatment does not come up to the extreme point, the wife, who has been greatly in fault, cannot have her divorce, though her husband is not justifiable, and an indictment against him for the battery will lie? In Waring v. Waring Lord Stowell himself observed: “'Though I may not be able to exonerate the husband from blame, the wife’s own conduct does not give her a title to complain.”? And Dr. Lushington has said: “Ifa wife can insure her own safety by lawful obedi- ence, and by proper self-command, she has no right to come here ; for this court affords its aid only when the necessity for its aid is absolutely proved.”* Thus it was held in Louis- jana, that, if the wife behaves in an outrageous manner to- ward her husband, and he ill treats her, she still cannot have a separation. “The law,” said the court, “which provides for a separation from bed and board in certain cases, is made for the relief of the oppressed party, not for interfering in quarrels where both parties commit reciprocal excesses and outrages.”® Soin Alabama the like doctrine was laid down; yet Goldthwaite, J., added: “ There are, of course, some acts of violence, such as involve: danger to life, limb, or health — acts which render it absolutely necessary for the safety of the wife, that she should be separated from the husband; and, when conduct of this character is proved, it admits of no pal- liation or excuse, if intentionally done.”® Doubtless the court 1 Ante, § 15. 7 Ante, § 485 and note, 491. And see ante, § 388, 396, 397. * Waring v. Waring, 2 Phillim. 132, 144, 1 Eng. Ec. 210, 216; Taylor v. Taylor, 2 Lee, 172, 6 Eng. Ee. 81; Kimball v. Kimball, 13 N. H. 222; Poor v. Poor, 8 N. H. 307. The last case is both able and readable. * Dysart v. Dysart, 1 Robertson, 106, 140. This case was appealed to the Arches Court, where the decision of Dr. Lushington was overruled by Sir Herbert Jenner Fust; but I do not understand the latter judge to have dissented generally from the principles of law laid down by the former, though he did disapprove of an expression immediately preceding the one quoted in the text. Ib.512. A further appeal was taken, but it was aban- doned on a compromise between the parties. Ib. 548; Wadd. Dig. 155. * Durand v. Her Husband, 4 Mart. La. 174, Derbigny, J. Ante, § 469. ® David v. David, 27 Ala. 222, 224, [465] § 495 SPECIFIC GROUNDS OF DIVORCE. [Boox v. in determining, whether the rule, of refusing the divorce where the plaintiff wife’s ill-conduct drew out from the husband that of which she complains, is applicable in a particular case or not, will consider, not so much what in obedience to the law of Christianity the husband should do, but what, seeing “husbands are men and not angels,” he would naturally be prompted to do.! § 495. We may therefore lay down the doctrine, that, on the one hand, though the ill-conduct of the wife was such as to contribute in a measure to what she complains of in her hus- band, and though his own ill-conduct did not reach the very extreme point spoken of, still, the latter being very aggravated, she may have her divorce for it;2 while,-on the other hand, she cannot ordinarily complain with effect, if materially in fault herself. Yet always the more unexceptionable her con- duct, the more meritorious her cause.2 It may be difficult to say precisely, how much ill-behavior on her part will, in a given case, take away her remedy. On this question it-has been well remarked, that “the criterion by which, in human tribunals, the conduct of human beings is to be estimated, should be formed, not according to the rule either of ideal perfection or of occasional excellence, but according to the standard which, being attainable by the various classes to which it is to be applied, is sufficiently high to insure the preservation and promotion of the morals and good order of society.”* The court will accordingly look at the origin of matrimonial quarrels, and see to which of the parties the first blame is to be imputed;5 and, if the plaintiff 1 Fleytas v. Pigneguy, 9 La. 419. On this subject see also Boyd v. Boyd, Harper, 144; Mayhugh v. Mayhugh, 7 B. Monr. 424, And see: Watkinson v. Watkinson, 12 B. Monr. 210. , 2 See Doyle v. Doyle, 26 Misso. 545, 547. * Holden v. Holden, 1 Hag. Con. 453; Dysart v. Dysart, 1 Robertson, 106, 138, 134; Taylor v. Taylor, 4 Des. 167; Headen v. Headen, 15 La. 61; Jones v. Jones, Wright, 155; Griffin v. Griffin, 8 B. Monr. 120. * Marshall, C. J., in Mayhugh v. Mayhugh, 7 B. Monr. 424, * Mayhugh v. Mayhugh, supra; Waring v. Waring, 2 Phillim. 132, 1 Eng. Ec, 210, 212. [ 466 ] CHAP. XXIII. ] CRUELTY. § 496 a wife’s misconduct has been provoked by her husband, this will weigh materially in her favor On the other hand, if she has fallen into any impropriety, though not criminal in it, and her husband’s jealousy is thereby excited, she should use every reasonable effort to soothe his excitement, and remove its cause.? § 496. We have seen,’ that matter of recrimination must always be shown by the party who relies upon it in. bar. So of the plaintiff’s misconduct, as considered in the foregoing sections :* the defendant must prove it, for it will not be pre- sumed. VI. The Evidence. § 496 a. In a certain aspect, almost the entire law of cruelty may be considered as belonging to the evidence. The reason is, that in each case the leading inquiry concerns the future danger, rather than the past misconduct. ‘Yet the courts regard what has been done as constituting, in a certain sense, the foundation of the proceeding for divorce ; whence it is looked upon as being of the substance of the complaint. The true way however to regard the acts of cruelty, as they are called, is to consider them as occupying a double posi- tion, — the one, as being the gravamen of the injury alleged ; the other, as furnishing evidence of dagner to be apprehended. In both these aspects, they have been treated of in the fore- going sections. And there remain a few points, relating to the evidence proper as distinguished from the evidence thus explained, to be examined in the concluding sections of this chapter. 1 Graecen v. Graecen, 1 Green Ch. 459; Bascom v. Bascom, Wright, 632. 2 Mayhugh v. Mayhugh, supra. ® Ante, § 408. * Ante, § 491-495. ’ Rumball v. Rumball, Poynter Mar. & Div. 237, note; Lockwood v. Lockwood, 2 Curt. Ec. 281, 7 Eng. Ec. 114. [ 467] § 4974 SPECIFIC GROUNDS OF DIVORCE. [Book v. § 497. Therefore the law does not so deem the danger. the essence of the complaint, as to preclude the necessity for the complainant to set out, in his pleadings, the specific acts of cruelty. And he must establish, in evidence, so much of the alleged cruelty as constitutes ground of divorce; but he need not establish more! In New York, where the statute (fol- lowing the common law rule) requires the several acts of violence to be specifically alleged; it is held, that the acts so alleged present the matters in issue, to which the proofs must be directed, but that, under the general allegation in the bill, the court will look into the general conduct of the defendant toward the plaintiff, for the purpose of understanding more fully the circumstances complained of, and how the parties lived together? And we have already seen, that, according to the common doctrine, weight may be given to matters not pleaded, though they cannot be the foundation or only ground for the divorce. In a New Jersey case, however, the Chan- cellor observed: “The evidence should have been confined to the specific charges in the bill, whereas it has in reality been little short of a history of all the family quarrels for the last twenty years, a recital at all times disgusting and painful, and never to be resorted to but from the strongest necessity.” 4 § 497 a. In a late Alabama case the court considered the point last stated, and arrived at what seems to be a just con- clusion, as follows; that specific acts of cruelty, not alleged ‘by the complainant, cannot be made the foundation of the decree of divorce; yet that the court may consider such acts, as explanatory of the acts alleged, and as giving weight to them; while, also, the alleged acts must be proved in substance as stated in the pleadings, but need not be exactly in respect of 1 Lockwood ». Lockwood, 2 Curt. Ee. 281, 7 Eng. Ec. 114; ante, § 421. * Whispell v. Whispell, 4 Barb. 217. ® Ante, § 463, 463 a. * Graccen v. Graecen, 1 Green Ch. 459, 460. Contra Rees v. Rees, 23 Ala. 785. [ 468 ] CHAP. XXIII.] _ CRUELTY. § 498 all their non-essential circumstances. Said Goldthwaite, J: “ The strictest application of the rule does not require, that more than the substance of the issue should be proved; and, if the specification was that the defendant beat the complain- ant severely with a stick, while the evidence showed that it was done with a whip, the variance would be altogether im- material. So if the charge was, that the violence was inflicted in different modes, only one of which was established, it would be enough ; for the substance of the charge is, that the particular violence offered amounted to cruelty, and the charge is supported by showing any violence of a like kind, which could be regarded as cruel within the meaning of the stat- ute.”1 That the general demeanor of the parties to one another, in distinction from specific acts of cruelty, is always in evidence in these cases, we have already seen. § 498. If marks of violence are found upon the wife, it does not follow, that they were caused by the husband.2 But if she makes complaint of the injury, recenti facto, such com- plaint, with the marks, may be shown; because, from the nature of these transactions, unless this kind of evidence were received, the husband might inflict ill-usage upon his wife when the parties were alone, and she be left without the possibility of redress. And if a wife complains, recenti facto, to her maid; and afterward, but not recenti facto, to her physician; still the latter complaint, though not direct evidence of ill- usage, has been held to be admissible as strengthening the statement, and confirming the credit, of the maid.* * David v. David, 27 Ala. 222, 224, See also, as to a point of practice, Breinig v. Breinig, 2 Casey, 161. 2 Ante, § 463, 463 a, 497. 3 Dysart v. Dysart, 1 Robertson, 106, 118. * Lockwood v. Lockwood, 2 Curt. Ec. 281, 7 Eng. Ec. 114,121; Dysart v. Dysart, 1 Robertson, 106, 114, 470, 497. See Waring v. Waring, 2 Phillim. 132, 1 Eng. Ec. 210, 218. Soin a suit against the wife for deser- tion: her declarations, made on the night of flying from her husband’s ‘house, have been held admissible evidence in her favor. Cattison v. Catti- 40 [469 J § 500 SPECIFIC GROUNDS OF DIVORCE. [BOOK V. § 499. ‘The question of admitting a record of conviction for an assault and battery, obtained in a criminal prosecution, has been already considered! A late Pennsylvania case holds, that the respondent husband, sued by his wife for cruelty, can- not show, in his defence, an unsuccessful attempt by her to have him bound over to keep the peace. Said Black, J.: “She was not a party to it [the proceeding] in any sense that would make it binding on her. Nor does it appear to have any rela- tion to the subject-matter of the present dispute.” 2 § 500. The English doctrine, resting well on principles ap- plicable to this peculiar offence, permits the demeanor of the parties at times subsequent to the bringing of the suit, to be taken into the account in determining, whether a renewal of the cohabitation would be safe® Yet the Louisiana court held otherwise, observing: “ It has been urged, that, since the inception of this suit, the aggravated ill-treatment of the hus- band towards his wife ought to be taken into consideration by us in deciding on the case. We do not feel authorized to do so. The only question we have to examine is, whether the facts, alleged as having occurred before the suit was brought, are sufficient to justify a separation.” Plainly the facts alleged, and existing at the time of suit brought, must ¢ son, 10 Harris, Pa. 275. On the ordinary principles"of evidence, Professor Greenleaf observes: “ Wherever the bodily or mental feelings of an indi- vidual are material to be proved, the usual expressions of such feelings, made at the time in question, are original evidence.” 1 Green]. Ev. § 102. And see further, on questions of this nature, Reg. v. Walker, 2 Moody & R. 212; Rex v. Jagger, 1 East P. C. 455; Reg. v. Osborne, Car. & M. 622; Phillips v. The State, 9 Humph. 246; Commonwealth v. McPike, 3 Cush. 181; Kennard v. Burton, 25 Maine, 39. Of course, in cases of divorce, the par- ty’s testimony, as such, is not admissible. Manchester v. Manchester, 24 Vt. 649, 1 Ante, § 445, note. * Breinig v. Breinig, 2 Casey, 161. * Westmeath v. Westmeath, 2 Hag. Ec. Supp. 1, 4 Eng. Ec. 238, 298 ; ante, § 456. * Tourné v. Tourné, 9 La. 452, 457, Bullard, J. [ 470 ] CHAP. XXIII.] CRUELTY. § 501 be the ground of the proceeding;! yet it is not easy to see, why they may not receive color as well from what has hap- pened since, as from what took place before. § 501. The admissions of the defendant, in cases of cruelty, “whether in words, or by the absence of the denial of charges which every innocent man would, if he could, deny with in- dignation, are,” observed Dr. Lushington, “ important evi- dence; for they are the best and most creditable testimony the res geste, under the circumstances, can admit of.”% Still a divorce for cruelty is never granted, more than for adultery, on the unaided confessions of the party. The rules and prin- ciples applicable to this matter have been already discussed. “ Affectionate letters, from a wife” to her husband, “are not necessarily inconsistent with cruelty on the part of the hus- band; though they may be so, they are not necessarily so.” ® 1 See Ferrier v. Ferrier, 4 Edw. Ch. 296. 3 Ante, § 463, 497. ® Saunders v. Saunders, 1 Robertson, 549, 558. See ante, § 15. * Ayl. Parer. 229. 5 Ante, § 305-313. ® Saunders v. Saunders, supra, p. 565. [471 ] § 502 SPECIFIC GROUNDS OF DIVORCE. [BooK v. CHAPTER XXIV. DESERTION. Szcr. 502-5054. Introduction. 506-510a. The Ceasing to Cohabit. 511-517. The Intent to Desert. 517 a-528. The Evidence. 524-529 a, The Justification. 530, 581. The Time and Place. _ § 502. Tue law of England, as imported by our forefathers into this country, made no provision for divorce in case of the desertion of one of the parties from the other! Yet it provided the suit for the restitution of conjugal rights, as a miserable substitute for justice. By this proceeding, the delin- quent party is compelled to return to cohabitation, if the other, says Blackstone, “be weak enough to desire it.”? Either husband or wife may carry on this suit against the 1'Godolphin says: “The civil and canon law do allow of divorce, after a long absence, but are not.agreed touching the time of’ that absence; for in one place it is after two years, in another after three years, in another after _ four. Others hold, that the civil law requires five years absence before there may be a divorce on that account. In the Council of Lateran, a sentence was allowed by the whole council, which was given by a bishop, pronouncing a divorce for a woman, complaining that her husband had been absent ten years, giving also leave to the woman to marry again. But the truth is, no absence, be it for any time whatever, doth properly cause a divorce in law. Indeed seven years absence, without any tidings or intelligence of or from the absent party, will so far operate in law towards what is equivalent to a divorce, as to indempnise the woman from - the penalty of polygamy, if in that case she marry again. Also the canon law hath decréed, that, if the wife refuse to dwell with her Christian hus- band, he may lawfully leave her.” Godol. Ab. 194. And see, on the subject of desertion, ante, § 275, 286, 2 3 Bl. Com. 94. And see ante, § 277. [472] CHAP. XXIV.] DESERTION. § 504 other, when delinquent. On the wife, for example, estab- lishing her claim, there is a decree, that the husband receive her back, and also treat her with conjugal affection; and he will not be discharged from the suit until he has complied with both branches of the decree.! Should he refuse obedi- ence, the court, on her prayer, will pronounce him in con- tempt; and he will be imprisoned until he obeys. Even the court itself cannot release him on any other condition than obedience.2 The late English statute of 20 & 21 Vict. c. 85, provides, in §16, for the judicial separation on the grounds, not only of cruelty and adultery, but likewise of “desertion without cause for two years and upwards.” The suit for the restitution of conjugal rights, however, is not abolished. § 503. In the United States, the remedy for desertion, where any remedy is provided by law, is a suit for divorce. The suit for the restitution of conjugal rights has not been adopted in any of the States;® but the principles which govern it are, to some extent, applicable to the divorce suit. We shall therefore have occasion to consider these principles a little in this chapter. § 504. The offence of desertion, as a ground of divorce, is described in various language in the statutes of the different States; but the several phrases employed, viewed in connec- tion with the general doctrines which govern this department of our jurisprudence, have substantially the same meaning. ‘Thus, in Mississippi, a divorce from the bond of matrimony may be decreed “ for wilful, continued, and obstinate deser- tion for the term of five years;”* in Florida, “ for wilful, ob- gtinate, and continued desertion, by either party, for the term 1 Gill v. Gill, cited in Orme v. Orme, 2 Add. Ec. 382, 2 Eng. Ec. 354, 355; Evans v. Evans, 1 Hag. Con. 35, 4 Eng. Ke. 310, 349. -* Barlee v. Barlee, 1 Add. Ec. 301. ® Ante, § 279. * Hutchinson’s Code, p. 495. 40* [473] § 504 SPECIFIC GROUNDS OF DIVORCE. [Boox v. of a year;”! in Connecticut, for “wilful desertion for three years, with total neglect of duty by the other party ;”? in Ohio, “where either of the parties shall have been wilfully absent from the other for three years;”? in Iowa, when either party “wilfully deserts” the other, “and absents himself, without a reasonable cause, for the space of one year;”* in Pennsylvania, when either party is chargeable with “ wilful and malicious desertion, and absence from the habitation of the other, without a reasonable cause, for and during the space of two years;”® in Missouri, “when either party has absented himself. or herself, without a reasonable cause, for the space of two years;”° in New Hampshire, “ when either party, without sufficient cause, and without consent of the other, shall have abandoned such other, and refused for three years to cohabit with such other”;7 in Massachusetts, until recently, “in favor of either party, whom the other shall have wilfully and utterly deserted for the term of five years, con- secutively, and without the consent of the party deserted.” ® 1 Thompson’s Digest, p. 228. * B.S. of 1849, c. 2, § 10. ® Swan’s Stat. of 1840, c. 40, §1. * Code of Iowa, of 1851, p. 223. 5 Stat. of March 13, 1815, Dunlap’s Laws, p. 319; Butler v. Butler, 1 Parsons, 329. * Freeland v. Freeland, 19 Misso. 354. T Payson v. Payson, 34 N. H. 518. é 8 Stat. of 1838, c. 126,§1. Stat. of 1857, c. 228, of Massachusetts, re- pealed the earlier statute of divorce for desertion mentioned in our text, and provided as follows: ‘‘§ 1. Whenever a divorce from the bed and board has been or shall be decreed for any cause under the sixth section of the seven- ty-sixth chapter of the Revised Statutes, and the parties have or shall have lived separate for five consecutive years next after such decree, a divorce from the bonds of matrimony may be decreed upon the petition of the party upon whose petition such decree of separation was granted; or, after the parties have or shall have lived separate for ten consecutive years, such di- vorce from the bond of matrimony may be decreed in favor of either party. -§ 2. A divorce from the bond of matrimony may be decreed in favor of either party, in all cases when one of the parties has deserted or shall hereafter [474] CHAP. XXIV. ] DESERTION. § 505 § 505. Probably the single word “ desertion,” or the words “wilful absence,” with no qualification except that of time, would alone convey the full legal meaning contained in any one of the foregoing statutory ‘provisions; because, if the desert the other for the term of five years consecutively; provided, that, when the libel is filed by the party deserting, it shall appear that the deser- tion was caused by extreme cruelty of the other party, or, in case the libel is filed by the wife, that the desertion was caused by the gross or wanton and cruel neglect to provide suitable maintenance for her by the husband, he being of sufficient ability so to do.” The Scotch statute, enacted in 1573, is as follows: It provides, that, if either the husband or wife “divertis fra uther’s companie without ane reasonable cause alledged or reduced befoir an judge, and remainis in their malicious obstanacie be the space of foure zeires, and in the meane time refusis all privie admonitions, the husband of the wife, or the wife of the husband, for dew adherence: That then the husband, or the wife, sall call and persew the obstinate person offender, befoir the Judge Ordinar for adherence. And in case no sufficient causes be alledgéd, quhairfoir na adherence suld be, but that the sentence proceedis against the offender, refusand to obey the samin: The husband or the wife, sall meene themselves to the superior magistrate, videlicet the Lords of Session, and sall obteine letters in the four formes, conforme to the sentence of adherence: Quhilk charge being contemned, and therefoir being denunced rebel and put to the horne, then the husband or the wife, to sute the spiritual jurisdic- tion and power, and require the lauchful archbishop, bishop, or superintend- ant of the countrie quhair the offender remaines, to direct privie admoni- tiones to the said offender, admonisching him or her, as befoir, for adher- ence; Quhilkes admonitiones gif he or she contemptuously disobeys, that archbishop, bishop, or superintendant to direct charges to the minister of that parochin quhair the offender remaines; or in case there be nane, or that the minister will not execute, to the minister of the next adjecent kirk theirto, Quha sall proceede against the said offender with publick admoni- tiones, and gif they be contemned, to the sentence of excommunication:— Quhilk anis being pronounced, the malicious and obstinat defection of the partie offender, to be ane sufficient cause of divorce, and the said partie of- fender to tyne and lose their tocher and donationes propter nuptias.” Fra- ser says, that “the only particulars in this statute now in desuetude are the letters of four forms, which have been superseded by letters of horning, and presbyteries have come in room of the bishop.” 1 Fras. Dom. Rel. 680, 681. ‘The Louisiana statute is modelled somewhat upon the Scotch. The aban- donment must be made to appear by three reiterated summonses, from month to month, to the party, to return to the matrimonial domicil; each one fol- lowed by a sentence, to be served on the delinquent, ordering the return. Perkins v. Potts, 8 La. Ann. 14. [475] § 506 SPECIFIC GROUNDS OF DIVORCE. [Boor v. plaintiff had consented to the absence, he would be barred on the ground of connivance; if the separation had been inter- rupted by an interval of cohabitation, it, as a condonation, would cut off the right to complain of the previous matter, unless indeed the doctrine of the conditional quality of the condonation should be literally applied here; and, in every view, the absence could not be a ground of divorce, unless wilful. Yet in Tennessee, where the words of the statute are “wilful and malicious desertion or absence by the hus- band or wife, without a reasonable cause, for the space of two years” — the court has given stringent and peculiar effect to the word “ malicious ;” making it control the whole clause, and mean malice in fact, as distinguished from malice in law; and defining malice as “enmity of heart, or unprovoked malignity toward the person deserted.” And the judge said, that such malice “must be the motive which induced the desertion,” and no other motive will stand in its stead. The point adjudged, however, was simply, that to allege and prove the defendant’s absence during the statutory period as having been “without any just or probable cause,” would not au- thorize the judgment of divorce within the statute Clearly however, this Tennessee construction, if we look at the dicta of the court and not at the mere point decided, is different from what is given to similar words elsewhere.” § 505a. The further examination of this subject will bring to our attention the following points: I. The Ceasing to Cohabit; I]. The Intent to Desert; III. The Evidence; IV. The Justification; V. The Time and Place. I. The Ceasing to Cohabit. § 506. Plainly desertion consists in, first, an actual break- ing off of the matrimonial cohabitation ;* and, secondly, an 1 Stewart v. Stewart, 2 Swan, Tenn. 591. * Ante, § 397, note, 504, note; 1 Bishop Crim. Law, § 263. * The word cohabitation seems not to convey exactly the same meaning [476 ] CHAP. XXIV.] DESERTION. § 506 intent in the mind of the offender to desert. Both must combine. But it is wholly jmmaterial, whether the distance to all minds, so I have usually in this volume employed some other word in its stead ; precision being of the highest importance in the statement of legal doctrine. Webster defines cohabitation thus: ‘1. The act or state of dwelling together, or in the same place with another. 2. The state of living together as man and wife, without being legally married.” Worcester de- fines “‘ Cohabit, to live together; to dwell with another; to live together as husband and wife.” Milton writes of a man’s leaving “the dear cohabita- tion of his father, mother, brothers, and sisters.” On the other hand, Chan- cellor Walworth, in Dunn v. Dunn, 4 Paige, 425, 428, apologizes for a solicitor and his client, in respect to some proceedings, on. the ground of their “ignorance,” in not understanding “ what the legal meaning of cohabi- tation was; and that they both understood that voluntary cohabitation meant nothing more than that they slept together in the same bed.” Iam not aware, that other judges have often employed this word to denote actual sexual intercourse ; further than may be presumed from the dwelling together, in the same house, of parties under claim of being married; or as neces- sarily implying even an occupancy, by the husband and wife, of the same bed. The words “ matrimonial cohabitation” have even been used in dis- tinction from “ matrimonial intercourse,” to signify a living together in the same house, without copula. Thus Lord Stowell adopts the expression of Dr. Harris, one of the advocates of the Ecclesiastical Court, that “the duty of matrimonial intercourse cannot be compelled by this court, though matri- monial cohabitation may.” Forster v. Forster, 1 Hag. Con. 144, 154, 4 Eng. Ec. 358, 363. And where the wife alleged, that, while the husband allowed her to reside in the same house with him, she was “ denied access to his per- son and bed, and refused common necessaries for her support,” Sir Christo- pher Robinson observed: “ The parties are admitted to be actually cohabit- ing;” though there was no “matrimonial intercourse.” Orme v. Orme, 2 Add. Ec. 823, 2 Eng. Ec. 354. See Rogers Ec. Law, 2d ed. 896. In another case, Lord Stowell observed concerning the proof of adultery, that, where parties who are alleged to have committed the offence “‘ have gone so far as'to perform the ceremony of marriage in a church, and they have since lived together ostensibly as man and wife, that fact, so assisted by the subse- quent cohabitation, is strong presumptive evidence of an adulterous inter- course, and will fix it.” Nash v. Nash, 1 Hag. Con. 140, 4 Eng. Ec. 357. And to go a little further back, the author of the preface to Swinburne on Spousals, speaking of the contract of marriage per verba de presenti, without formal solemnization, says: “ In some places the woman, after these spousals, presently cohabited with the man, but continued unknown until the marriage day.” See also Commonwealth v. Calef, 10 Mass. 153. [477] § 508 SPECIFIC GROUNDS OF DIVORCE. [Book v. to which the parties remove from each other is great or small; only as perhaps illustrating, under circumstances, their intent; for the criterion in all cases is the intent to aban- don} § 507. We have seen,? that, where one of the parties to a marriage refuses to consummate it by sexual intercourse ; or, having a physical impediment to the consummation, re- movable by a surgical operation, refuses to be operated upon ; the marriage is not voidable on the ground of impotence. But whether the refusal in either of these cases; or the utter withdrawal, after consummation, of one of the parties from the matrimonial bed, without any withdrawal from general cohabitation ; is a sufficient separation to sustain the suit for desertion, seems not to be entirely clear. In England, the suit for the restitution of conjugal rights could not, ordina- rily at least, be maintained in such circumstances ; for, ob- serves Sir Christopher Robinson, “ matrimonial intercourse may be broken off on considerations (of health, for instance, and there may be other) with which it is quite incompetent to this court to interfere.”? Yet in England it is doubtful, whether the court would discharge a husband proceeded against in such a suit, until he had received his wife, not only to his habitation, but to the matrimonial bed.* § 508. Looking at this matter as one of principle, if, aside from all special or temporary considerations, as of health, a 1 Ahrenfeldt v. Ahrenfeldt, 1 Hoffman, 47; Gregory v. Pierce, 4 Met. 478. 2 Ante, § 235. * Orme v. Orme, 2 Add. Ec. 382, 2 Eng. Ec. 354; Forster v. Forster, 1 Hag. Con. 144, 154, 4 Eng. Ec. 358, 363. * Orme v. Orme, supra. A writer in the London Law Magazine, vol. 50, p- 275, shows, that, by the canon law, from which the suit for the restitution of conjugal rights was derived, the court would compel carnal copulation ; but he thinks the English tribunals have altered the rule on this point, for the purpose of relieving somewhat the asperities of a cruel and unjust pro- ceeding, which he considers this suit to be. [478] CHAP. XXIV.] DESERTION. § 509 wife should utterly refuse to dwell with her husband as wife, why should. not the refusal be deemed a desertion, even though she were willing to remain with him as a servant or a daughter? ‘There is a case which holds, that a husband, who has already deserted his wife, cannot so take off the effect of the desertion as to prevent her right to a divorce accruing, by offering, a short time before. the expiration of the period specified in the statute, to support her either in his, own house or elsewhere. “ The offer,’ said the court, “was not to live with her in the relation of husband and wife; and, as she was by the nature and terms of the marri- age contract entitled to stand in that relation to him, she was not bound to accept the offer to stand in any other relation.”! On the other hand, another case lays down the doctrine, that, though the husband lies in a separate bed from his wife, she is not thereby justified in leaving his house.? § 509. A statute of New Hampshire provided, “that any husband or wife separating him or herself from the other, and joining and uniting him or herself with any religious sect or society that believes, or professes to believe, the relation be- tween husband and wife void or unlawful, and such husband or wife continuing to live so united with such sect or society for the space of three years, and refusing during that time to cohabit with the other, who shall not have joined and con- tinued united with such sect or society, shall be deemed and taken to be a sufficient cause of divorce from .the bonds of matrimony.” And in a suit by the wife, for the husband’s desertion within this statute, the court held, “ that the Shakers believe, or profess to believe, the relation between husband and wife void or unlawful;” the evidence being, that they acknowledge the husband’s duty to maintain his wife, and . hers to conduct herself in a discreet and seemly way, in sub- mission to her husband; and acknowledge generally the law- 1 Fishli v. Fishli, 2 Litt. 337. See also Moss v. Moss, 2 Ired. 55. * Eshbach v. Eshbach, 11 Harris, Pa. 343. [479 ] § 510 SPECIFIC GROUNDS OF DIVORCE. [Boox v. fulness of marriage, as to what were called in the case “all its duties which the laws can enforce. But,” said the court, “the evidence shows, and it is not denied, that they also be- lieve, or profess to believe, that cohabitation! is not one of the duties resulting from the relation of husband and wife ; and that, with respect to the great end of matrimony, the continuation of the species, they hold the relation to be void and unlawful. We have therefore no hesitation in saying, that we think it clearly proved that the Shakers are a sect professing to believe the relation of husband and wife unlaw- ful and void, within the meaning of the statute.” ? § 510. For a gleam of remaining light, we may refer to the Scotch law. Fraser says: “ The diversion justifying divorce has hitherto been confined to the case where the offender de- serts the society of the other. Yet a question has been raised as to whether it would apply to the case of a party who occupies the same house with the pursuer, and the same bed, and yet refuses conjunctionem corporum, or at least to co- habit with the other at bed and board. Sir George Macken- zie refers to this question, and says, ‘ that it may be doubted if a wife remaining in her husband’s house, but refusing him all access to her, may be said to have deserted; and I con- ceive she may, for all the reasons in the one case conclude against the other” Elchies also said, ‘'Truly I am of opinion, there is the same reason for dissolving a marriage for wilful abstinence as for non-adherence ; though I am afraid our law would not sustain it, since it is not contained in the act. It would seem, however, that it is desertion. Marion Graham applied to the Commissaries, setting forth that George Bu- quhanane, her husband, ‘ put hir fra him, répelland hir of his * From the connection, and from other expressions in the report, it plainly appears that the court here use the word cohabitation in the sense of sexual intercourse. For instance, they say, the Shakers believe “ that it is unlaw- ful for man and wife to cohabit together as man and wife.” See ante, § 506, note. * Dyer v. Dyer, 5 N. H. 271. [480 ] CHAP. XXIV.] DESERTION. § 510 ' . cumpanie, and inclusit hir in ane chalmer in ye heid of his place of Buquhanane, and hes abstractit his bodie fra hir con- tinewallie sinsyne, and haldin hir thairin inclusit, and will not put hir to libertie and freedom, and adheir, treit, and entertein hir at bed and buird.” Here the parties were living in the same house, yet the wife asked for adherence, and not judi- cial separation. The commissaries decerned him ‘to adheir as an man aucht to do to his wyff’?”1 And in a Scotch case before the House of Lords, this tribunal held, that, though the husband offers to aliment his wife in his own house, yet does not eat, sleep, or stay there with her, he does not so discharge the duty of adherence as to be exempt from liability in her suit for separate alimony.” 510 a. This question, as one of principle, is not without difficulty. Still if a party to the marriage should refuse to the other party whatever lawfully belongs in marriage alone, —refuse, not from considerations of health, not from any other temporary considerations, but from alienation of affection, from perverted religious notions, or from any other cause resting permanently in the will, and not in physical inability, —the refusing party would thereby voluntarily withdraw from whatever the relation of marriage, distin- guished from every other relation subsisting between human beings, is understood to imply. Therefore he should be hol- den to desert thereby the other. Cases might arise wherein the proofs would fail; but, let it here be said again, as it has been more than-once already said in this volume, no just judge will suffer a case to slip when clearly proved, because of the difficulty parties may encounter in proving other simi- lar cases. 11 Fras. Dom. Rel. 681. And see ib. 55. ? Arthur v. Gourlay, 2 Paton, 184. As to which point, however, see Gray v. Gray, 15 Ala. 779. 41 [481] § 512 © SPECIFIC GROUNDS OF DIVORCE. [Boox v. IL The Intent to Desert. § 511. The matter oftenest arising practically in these cases, is, the intent to desert. A mere separation by mutual consent, made with’ or without? the further understanding that one of the parties shall apply for a divorce, i is plainly not desertion in either party. Neither, as a matter of proof, can desertion be inferred against either, from the mere unaided fact of their not living together ;? though protracted absence, with other circumstances, may establish the original intent.* But it is equally obvious, following also from well-settled principles of law,> that, when a separation and an intent to desert are once shown, the intent will be presumed to con- tinue, indeed the separation also, until the contrary appears.® § 512. The separation and desertion are neither necessarily in theory, nor always in practice, identical in the time of their commencement. Thus if a husband leaves his wife on busi- ness, meaning to return, but afterward changes his purpose, the desertion begins when he resolves to remain away.’ And where parties had been living separate for a considerable period, and the cause of their separation did not appear, but the husband had contributed to his wife’s support, he was held to have deserted her, at least from the time he withdrew the support, and wrote her a letter wherein, among other things, he said: “ When therefore I now cease to give you } Mansfield v. Mansfield, Wright, 284. * Crow v. Crow, 23 Ala. 583; Gray v. Gray, 15 Ala. 779; Vanleer v. Vanleer, 1 Harris, Pa. 211. * Jones v. Jones, 13 Ala. 145; Gaines v. Gaines, 9 B. Monr. 295, 303; Butler v. Butler, 1 Parsons, 329; Stokes v. Stokes, 1 Misso. 320; Scott v. Scott, Wright, 469; Pidge v. Pidge, 3 Met. 257, 258; Van Voorhees v. Van Voorhees, Wright, 636; Me Coy v. Mc Coy, 3 Ind. 555. * Ahrenfeldt v. Abrenfeldt, 1 Hoffman, 47. 5 1 Greenl. Ev. § 41, 42. ® And see Gray v. Gray, 15 Ala. 779. 7 Reed v. Reed, Wright, 224; Pinkhard v. Pinkhard, 14 Texas, 356. [ 482 ] CHAP. XXIV.] DESERTION. § 513 any further means, it is only done until such time as you are ready for such settlement, which is to fix a sum for your en- tire maintenance and expenses, all in all, payable to you weekly, by a third person. ..... Finally, I wish whatever settlement is made between us, is to be done by a legal di- vorce. The tie is broken; and it is better for us to live as happy as possible separate, than to lead an unhappy life to- gether, and show a bad example to our children.” } § 513. A consent to a separation is a revocable act;? and, if parties separate by consent, and one of them afterward, in good faith, seeks a reconciliation, but the other refuses to return ;® or if they separate for cause, and the cause is re- moved, but.one of them declines to renew the cohabitation ; * or if a wife, having left her husband without cause, comes back to him, and he will not receive her;5 or if the husband, after deserting his wife, proposes to renew the cohabitation, and she rejects his proposal, the full statutory period not hav- ing elapsed ;® this is a desertion in the one refusing, from the time of the refusal. But to entitle a person to a divorce under such circumstances, the offer of return must be made in good faith, must be free from improper qualifications and conditions, and must be really intended to be carried out in its spirit if accepted.’ And in all cases the legal desertion ends with the intent to desert; for instance, it ends when the erring party undertakes to come back, and is prevented. If 1 Ahrenfeldt v. Ahrenfeldt, 1 Hoffman, 47. 2 And see ante, § 300, note; Crow v. Crow, 23 Ala. 583. ® Butler v. Butler, 1 Parsons, 329; Miller v. Miller, Saxton, 386; Cun- ningham v. Irwin, 7 8. & R. 247. * Hills v. Hills, 6 Law Reporter, 174. 5 Clement v. Mattison, 3 Rich. 93; Fellows v. Fellows, 31 Maine, 342, And see McDermott’s Appeal, 8 Watts & S. 251, 256; McGahay v. Wil- liams, 12 Johns. 293; McCutchen v. McGahay, 11 Johns. 281; Hanberry v. Hanberry, 29 Ala. 719. § Walker v. Laighton, 11 Fost. N. H. 111. 7 Friend v. Friend, Wright, 639; Fishli v. Fishli, 2 Litt. 387; 1 Fras. Dom. Rel. 686. [ 483 J § 5144 SPECIFIC GROUNDS OF DIVORCE. [BOOK V. the wife is restrained by her parents from rejoining her hus- band, the court, on proper application, will remove the re- straint. § 514. Where the separation and desertion commence to- gether, the deserting party is not necessarily the one who leaves the matrimonial habitation, but he is the one in whose mind the intent to desert exists. Thus, to drive away the wife from the house is to desert her.2 And where a husband sent his wife to her friends; and then, without any known cause, himself left the country; there having been no diffi- culty between them, only it was supposed he thought her too old for him; she was held to have been deserted by him.? So where it appeared, that the parties had some slight misunder- standing; and the husband, having been absent from home a day or two, returned, and told his wife to go and see her brother, sick at his residence a few miles distant ; — she went, found her brother well, not having been sick; came back, found her husband gone;—she was held also to have been deserted by her husband.* Indeed it would be difficult to draw any distinction, only in the enormity of the offence, between a husband’s openly leaving his wife with the avowal of his intent to desert her, and his removing her from him by stratagem, or by violence. § 514a. The dwelling together of parties in marriage im- plies, of necessity, that either they concur as to the place of their abode, or one of them determines where it shall be. But as differences of opinion and wishes are ever liable to arise in this matter, the law must intrust to one of the parties the authority to fix the place, and change it from time to 1 Friend v. Friend, supra. 2 Morris v. Morris, 20 Ala. 168. * St. John v. St. John, Wright, 211. * Cossan v. Cossan, Wright, 147. 5 See 2 Dane Ab. 308. [484 ] OHAP. XXIV. ] DESERTION. § 5146 time, when the concord of views which ought to subsist between persons so closely allied fails to do this. And the doctrine is familiar, that this authority is vested, by law, in the husband. In some preceding sections,! the author has freely stated his objections to some of the English expositions of legal doctrine, which, taking their origin in times and manners differing from our own, seem to place in the hands of the husband too much barbarous power to be fitly exer- cised in modern days, under the light of modern civilization. But respecting the point of our present inquiry, reasons pre- vail unlike those which govern the other matters referred to. Hither the husband or the wife must decide, when there is insufficient good fellowship between them to lead them to an agreement ; and nature, as well as law, points to the husband as the proper party. Suppose the authority, in this case and in all matters of the like kind, were taken from the husband: and given to the wife, — who is there, male or female, whose inner nature, in the quiet moments of existence, would not rebel? The concurring testimony of the world,— of civil- ized, of barbarous, of savage people, — represents the husband to be the sturdy forest tree, and the wife to be the forest vine, clinging ever to its bark, and graceful and lovely only while it clings. And if there were no difference between the men- tal and physical constitutions of men and women, and if the difference were not such as it is, nature could not recog- /nize a law whereby the peculiar and perpetual union of mar- riage could subsist between them. § 5145. These observations are made, because, of late, some decisions have found way into the books, apparently overlooking and overruling what is thus stated to be estab- lished doctrine. Especially a recent Vermont case, wherein the opinion of the learned court was pronounced by its learned chief justice, seems to cut deeply down into the foundation itself, of marriage as understood in our law. According to 1 Ante, § 346, 486 a. 41* [ 485 ] § 5146 SPECIFIC GROUNDS OF DIVORCE. [BooK v. the facts of this case, the parties were married, and dwelt together for a time, in a particular place; then they removed into another State; then the husband came back to live in the former place; but the wife refused to accompany him back, refused also to join him after he had returned, being un- willing “to live with him near his relatives;” and the court held, that these facts did not constitute a “wilful desertion,” within the statute, of him by her. Said Redfield, C. J.: “ While we recognize fully the right of the husband to direct the affairs of his own house, and to determine the place of the abode of the family, and that it is in general the duty of the wife to submit to such determinations, it is still not an en- tirely arbitrary power which the husband exercises in these matters. He must exercise reason and discretion in regard to them. If there is any ground to conjecture, that the hus- band requires the wife to reside where her health or her comfort will be jeoparded, or even where she seriously believes such results will follow which will almost of necessity produce the effect, and it is only upon that ground that she separates from him, the court cannot regard her desertion as continued from mere wilfulness......: And in the present case, as the wife alleges the vicinity of the husband’s relatives as a reason why she cannot consent to come to Milton to live with him, and as every one at all experienced in such matters knows, that it is not uncommon for the female relatives of the husband to create, either intentionally or accidentally, disquietude in the mind of the wife, and thereby to destroy her comfort and health often, and as there is no attempt here to show that this is a simulated excuse, we must treat it as made in good faith; and, if so, we are not prepared to say, that she is liable to be divorced for acting upon it.”1 There is also a late Pennsylvania case, in which the doctrine seems to find favor, though perhaps the case does not absolutely establish it, that, if a wife refuses to come with or follow her husband from a foreign country to this country, such refusal alone, un- * Powell v. Powell, 3 Wms. Vt. 148, 150. [ 486 J ‘ CHAP. XXIV.] DESERTION. § 515 accompanied by evidence showing its unreasonableness, is not desertion by her! And something like this has likewise been laid down in Wisconsin. § 514c. The general doctrine is plain, and the cases before referred to do not conflict with it, that, if a husband lawfully and properly undertakes to change the matrimonial residence, and the wife refuses, having no legal excuse, to proceed with him to the new locality, she thereby deserts him.? Doubtless if her health would not permit the removal, she would be jus- tified in refusing ;4 because the very removing of her, to the ‘injury of her health, would amount to legal cruelty. But the true reason of the law of marriage acknowledges no condi- tion of living separate, without consent, unless the law also gives the right of divorce when the living thus separate oc- curs. For example, if the woman mentioned in the Vermont case should set up the fact of her husband’s residing “ near his relatives,” as ground on which to ask the court for a divorce from him, no tribunal on earth, however unfettered by statu- tory inhibition, and however lax in its notions of marriage, would grant her prayer. And if this rule is not to prevail, but if every judge is to go upon notions drawn either from his own breast, or from the breast of some nervous old woman, in deciding whether the excuse of a deserting party is a suffi- cient justification of the desertion, the law may be said to sit, very loosely upon our tribunals. This matter of excuse, how- ever, comes up for consideration further on. § 515. Suppose the abandonment of the matrimonial co- 1 Bishop v. Bishop, 6 Casey, 412. But see, as to the Pennsylvania law, post, § 526. 2 Gleason v. Gleason, 4 Wis. 64. See, as further illustrating this matter, Walker v. Laighton, 11 Fost. N. H. 111; Molony v. Molony, 2 Add. 249, 2 Eng. Ec. 291. 3 Walker v. Laighton, 11 Fost. N. H. 111. * See, as not however deciding the point, Molony v. Molony, 2 Add. 249, 2 Eng. Ec. 291. 5 See post, § 524 a. " Post, § 524 et seq. [ 487 ] § 516 SPECIFIC GROUNDS OF DIVORCE. _ [Book v. habitation to be occasioned by the ill conduct of one of the parties, can the other party rely upon this as constituting a case of desertion by the former? Decisions in Connecticut? and North Carolina? maintain, that, if a husband so abuses his wife as to render her living with him personally unsafe for her, on which account she leaves him, she can maintain against him her divorce suit, relying on these facts as consti- tuting desertion by him. Jn like manner the English courts hold, that, if a wife quits her husband’s house under probable cause to apprehend personal violence from him, or by reason of his bringing a common woman to reside in it, this, in an action for necessaries, is equivalent to his turning her out of doors; * in other words, it is desertion by him. Indeed, as matter of evidence, as well as law, such conduct seems, upon principle, clearly to show his intent to desert; on the familiar rule,> that a man is presumed to intend the natural and probable conse- quences of his acts. And there can be no distinction made between his intending to oblige her to leave him, and intend- ing himself to leave her. § 516. The doctrine of the last section, however, supposing it to be received as sound law, which undoubtedly it is, goes not to the full extent of an affirmative answer to the inter- rogatory with which the section opens. And unless there is 1 9 Dane Ab. 308; Reeve Dom. Rel. 207. 2 Wood v. Wood, 5 Ired. 674. 3 See also Almond v. Almond, 4 Rand, 662; Camp v. Camp, 18 Texas, 528. * Houliston v. Smyth, 2 Car. & P. 22, 3 Bing. 127, 10 Moore, 482; Hodges v. Hodges, 1 Esp. 441. 5 Greenl. Ev. $18, 34; 1 Bishop Crim. Law, § 248, 513, 514. And see ante, § 334 and note; Brown v. Commonwealth, 2 Leigh, 769. On an in- dictment for shooting with intent to murder, Patteson, J., in summing up to the jury, observed: “If it be necessary that the jury should be satisfied of the intent, I have no doubt that the circumstance, that it would have been a case of murder if death had ensued, would be, of itself, a good ground from which the jury might infer the intent; as every one must be taken to intend the necessary consequences of his own acts.” Reg. v. Jones, 9 Car. & P. 258, 260. [488 J CHAP. XXIV.] DESERTION. § 516 ground to hold, either as matter of fact or of law, that the ill conduct was connected with a desire to be rid of the ill- treated party, even though it justifies such party in leaving, the case can hardly, in reason, be deemed one of desertion. Moreover, contrary to what is laid down in the last section, we have a Massachusetts case, in which the majority of the court held, that, if a husband so abuses his wife as to furnish her justifiable cause to leave him, and she for this cause does leave him, and does neither return nor offer to return, while he wholly neglects to provide maintenance for her, and does not seek to live with her; this constitutes not a desertion of her by him. The case was one of severe cruelty, and also of utter neglect by the husband to provide for the wife; which two delinquencies are, by the statutes of Massachu- setts,! severally causes of divorce from bed and board; and it was agreed, that, for either one of these causes, at her election, she might have maintained her suit, even at an earlier period, for the limited divorce. But the majority of the court held, that she could not likewise elect? to consider his conduct as amounting to desertion; and, at the end of the statutory period from the time of the separation, bring a suit on this ground for a divorce from the bond of mairi- mony. Mr. Justice Putnam, dissenting, contended, that the case was the same as if the husband had turned his wife out of doors; that, there being a separation which was not com- pelled by any third persons, it must have been either by mutual consent, or a desertion; that it was not by mutual consent; that the wife did not desert the husband, the separa- tion being without her fault; and, therefore, that he must be held to have deserted her “.We confess,” says a reviewer, 1B. S.c. 76, § 6. : ® The doctrine of a party’s right to elect, which of several remedies he will pursue, is so well established in both civil and criminal jurisprudence as to leave it hardly possible, that the consideration mentioned in the report, of the plaintiff having her choice of other remedies, could have much weighed in the minds of the judges. See 1 Bishop Crim. Law, § 536. 5 Pidge v. Pidge, 3 Met. 257. / [ 489 J § 518 SPECIFIC GROUNDS OF DIVORCE. [Boox v. “it seems to us extremely difficult to resist this conclu- sion.” 1 § 517. We may observe of this Massachusetts case, as it stands on the judgment of the majority, that the court seemed not to have its attention directed to the matter, whether, in point of evidence, the husband should be holden in law to have intended to bring about the separation which his ill con- duct made necessary for the safety of the wife. And in this view, plainly the result reached by the majority of the court is a departure from correct principle. Plainly, also, as a ques- tion of a somewhat different nature, the result of this case should have been as indicated by the dissenting judge; for, if a husband may drive away a wife by his cruelty, without being chargeable with deserting her, then the statute against desertion can operate only for the protection of the strong, not of the weak. , II. The Evidence. § 517 a. The evidence of desertion and the law of deser- tion are so nearly identical as to render it not easy to sepa- rate very distinctly the two. Some of the foregoing sections discuss, in a measure, the law of evidence; and some of the following sections will in like manner discuss, in a measure, the law as distinguished from the evidence. § 518. In Ohio, on a petition by the wife for a divorce from her husband, the proof was, that, eight years before, “all her property,” in the words of the report, “was taken in execu- tion and sold to pay his whiskey debts. She removed to Cin- cinnati, and he lived with her, most of the time drunk, for several years, and doing no good; when she refused to sup- port him any longer; and he left her house about five years 1 7 Law Reporter, 19. 4 The legislature has since remedied this error of construction, as see ante, § 504, note. [ 490 ] CHAP. XXIV. ] DESERTION. § 619 ago. Her character is, in general, good; but she has ex- pressed a desire to be rid of her husband, in order that she might marry some one else.” The court said: “The wife has driven off her husband, and now seeks a divorce because of his wilful absence. She was doubtless right in refusing to live with or support a husband always drunk, but that does not make the case wilful absence on his part.” The petition was therefore dismissed! The facts of this case are not presented with sufficient fulness to enable us to draw from it any specific rule of law. As a general doctrine, the husband and wife should no doubt mutually labor for the promotion of their common interests; and, if she has capacity and health to earn a livelihood for herself and husband, while he has neither, she should earn it. But the wife’s duty can hardly be, under any circumstances, to support a merely drunken husband, who will not work, much less to supply him with intoxicating drinks; and, if she refuses to do this, and for the refusal he leaves her, it would appear to be as much desertion as if he left her because she was not sufficiently young or handsome. -Neither should her right be barred because of her wish to avail herself of it,? and be rid of such a husband, and pro- mote her happiness by marrying a better. § 519. In an another case, decided by the same court, the parties were married in Germany, whence they removed to Ohio. Here the husband collected all the wife’s property, converted it into cash, and went back to Germany, never, as he said, to return. She afterward expressed a wish that he never would return. After he had been away during the statutory period, without being heard from, she sustaining meanwhile 1 Hesler v. Hesler, Wright, 210. In an Alabama case, a husband, having left his wife without just cause, proposed to her through a third person to be reconciled ; which she declined, saying, she “had made up her mind not to live with him any longer.” When she afterward sued for a divorce the court refused it, on the ground that her declaration showed her consent to the separation. Crow v. Crow, 23 Ala. 583. 2 Ante, § 351. [491] § 520 SPECIFIC GROUNDS OF DIVORCE. [BOOK V. a good reputation, the court decreed a divorce on her prayer. Where, however, on a suit by the wife, the husband was shown to have left her for a distant place, declaring he could not live with that woman, and would not; but she followed him, and shortly afterward came back, saying he was to pay her a certain sum of money, and she to have a divorce; the court dismissed her bill, on the ground, that the whole evi- dence showed only a separation by agreement, which could not be enforced in this proceeding. § 520. Though, as we have seen,’ the separation and deser- tion may not be identical in the time of their commencement, yet generally they are. The courts have not, as yet, laid down any particular rules of evidence for determining, whether a separation does or not, as matter of proof, amount to a desertion; perhaps the question does not admit of such rules, but each case must rest on its own circumstances. Still the intent to desert is a fact of which the court must, in some way, be affirmatively satisfied.* It is important to disclose the particulars which preceded and accompanied the separa- tion.® So the single fact of a protracted absence may assist the presumption concerning the original intent.6 “The hus- band’s desertion,” says Shaw, C. J., “may be proved by a’ great variety of circumstances, leading with more or less probability to that conclusion; as, for instance, leaving his wife, with a declared intention never to return; marrying an- other woman, or otherwise living in adultery, abroad; absence for a long time, not being necessarily detained by his occupa- tion or business, or otherwise; making no provision for his } Guembell y. Guembell, Wright, 226. And see Frarell v. Frarell, Wright, 455. * Mansfield v. Mansfield, Wright, 284. ® Ante, § 512. * Friend v. Friend, Wright, 639; Brainard v. Brainard, Wright, 354 ; ante, § 506. ; ® Kimball v. Kimball, 13 N. H. 222; Bishop v. Bishop, 6 Casey, 412, 415. * Ahrenfeldt v. Ahrenfeldt, 1 Hoffman, 47; ante, § 511. [ 492 J CHAP. XXIV.] DESERTION. § 521 wife, or wife and family, being of ability to do so; providing no dwelling or home for her, or prohibiting her from following him; and many other circumstances.” 1 § 521. Where a wife, soon after the marriage, left her hus- band, saying she would not be confined to one man, and did not afterward return; the desertion by her was held to be es- tablished.2. Where the parties had been married while the man was under arrest upon a bastardy process, issued on complaint of the woman; and he, ever .after the marriage, refused to live with her; this was held to be sufficient evidence of desertion by him.2 So where, in a suit by the wife, the evidence was, that several years after the marriage the hus- band left her and her children, without any apparent cause, and continued absent during the statutory period, and until the. bringing of the suit, without contributing to her support;# where, also, without any known cause, the husband went off and had not been heard of;® where, also, the husband sent his wife to her father’s, in a town remote from their residence, saying he would follow her in a short time, but did not follow her for several months, and, when he did, remained with her only for a brief period, and then left her, without in any way providing for or corresponding with her, — the desertion was held to be sufficiently proved. On the other hand, where it appeared, in the husband’s suit, that he left his wife with a scanty supply, and went off for months to labor on the canal; and, when he returned, found she had gone to her friends ; this, with the further fact of her having been overheard to say, after the separation, she could not live with him again, was held to be insufficient proof of her having deserted him.’ 1 Gregory v. Pierce, 4 Met. 478. 2 Milliner v. Milliner, Wright, 138. * McQuaid v. McQuaid, Wright, 223. * White v. White, Wright, 138. ° Roberts v. Roberts, Wright, 149. 6 Wyatt v. Wyatt, Wright, 149. ' Frarell v. Frarell, Wright, 455. 42 [493 ] § 523 SPECIFIC GROUNDS OF DIVORCE. [BooK -v. § 522. In another case, which was a suit by the wife, “the cause alleged for this divorce,” says the report, “is wilful absence for more than three years. It appeared in evidence, that the defendant was frequently absent, and from sheer lazi- ness wholly neglected to provide for his family. He was a physician, and went, as he said, doctoring about the country. One time, when he had been gone several days, and left no provision whatever for his family, she went to her father’s, about eight miles off. When he returned, and had learned where his wife was, instead of going for her, he left the coun- try, and has since been absent more than three years, without contributing at all to the support of the wife, who continues to reside with her father.’ The divorce was granted A husband took to drink, neglected ‘his family, became quarrel- some, then a complete vagabond. The parties disagreed, he left, was afterward most of the time drunk about the streets ; ‘while she lived by herself, supported the family respectably, maintained a good reputation. Then he stole away from her a little boy, his son, and said he meant to keep him, and did not intend to live with the family again. She was held to be entitled to a divorce? In a Kentucky suit it appeared, that ‘soon after the marriage in Indiana the husband left his wife with the intention of abandoning her, who, being poor, went back to her former residence in Kentucky. Within six months he returned to the place where he had left her, but found she had gone. The court held, that it was not her duty to remain at the precise spot where he deserted her, and that her right to a divorce was not taken away by her return to Kentucky. § 523. A husband let to a tenant his dwelling-house, as he announced, “ with a view to a permanent separation.” He directed the tenant, however, to treat his wife well, and per- 1 Amsden v. Amsden, Wright, 66. ® Clark v. Clark, Wright, 225. : ® Fishli v. Fishli, 2 Litt. 387. Divorce for desertion was also decreed in Johnston v. Johnston, Wright, 454; and Thompson v. Thompson, Wright, 470, The proof was held insufficient in Jones v. Jones, 13 Ala. 145. [494 ] CHAP. XXIV.] DESERTION. § 524 mit her to remain as long as she chose. The next day, she also left, and never went back. During the same week, and after her departure, he returned to the house, and continued to occupy it alone. The court considered these facts as sufli- ciently showing a desertion by him; there was an actual separation, effected in pursuance of an intent in his mind to separate.t IV. The Justification. § 524. Though a sufficient abandonment should be shown primé facie, still the case might be met by a resort to any of the principles discussed under the heads of Connivance and Collusion? Condonation,3 and Recrimination,* in preceding chapters. We also saw, under the head of cruelty, that there is in law a defence to a charge of this nature, hardly coming under any one of the above heads; based on the principle, that a man cannot complain when visited with the natural and probable consequences of his own act. If the cruelty under which a wife suffers, comes to her as the natural re- bound of her own ill conduct, she cannot have redress in a court of justice; but is to find her remedy in mending her own manners.© So in respect to desertion, Dewey, J.,in a Massachusetts case, observed: “It might well be urged, and the appeal would meet a hearty response in every breast, that the husband who, by his brutal violence, or by a total, wilful neglect to cherish and sustain his wife, in accordance with his marriage vows, should compel her to abandon his roof and seek shelter abroad, either by way of protection of her person from violence, or for the purpose of obtaining the 1 Logan v. Logan, 2 B. Monr. 142. See also Hanberry v. Hanberry, 29 Ala. 719. ? Ante, c.18. Barnes v. Barnes, Wright, 475. 3 Ante, c. 19. * Ante, c. 20. 5 Ante, § 491-496. [495 ] § 244 SPECIFIC GROUNDS OF DIVORCE. [BOOK v. necessary comforts of life, should be estopped from setting up, in a court of justice, such withdrawing of the wife as a wilful desertion by her. To, a husband seeking a divorce under such circumstances, it might well be said, your bar- barity, your inhumanity, or your gross neglect (as the case might be) was the occasion of the separation of which you complain; your wife was only an involuntary actor in the scene, and you must be content to abide the consequences resulting from your own misconduct.”1 Yet to what extent the very just principle thus stated is applicable to the ‘suit for desertion is not precisely clear. Plainly, however, if one of the married parties leaves the other for a justifiable cause, this suit cannot be maintained against him; but the question is, what is a justifiable cause? And again the doctrine may be, —for here is a question, — that, though the party deserting is not properly justifiable, yet the other may still be debarred from complaining, by reason of his own wrong conduct. Upon these questions it is difficult to lay down any proposi- tions with entire confidence, that they can be sustained by the authorities, whether they are sustainable in just legal argu- ment or not. Let us, however, see some of the views which have been taken. § 524 a. But before travelling through the authorities, let us look at the question as one’of principle. The general policy of the law is to keep the parties together. Hence the Eng- lish law, as administered in the ecclesiastical courts, at the time our country was settled, provides the suit for the resti- tution of conjugal rights. Though this suit is not allowed in this country, the general policy of the law of those States in which desertion is ground of divorce, may be deemed to be the same from which the English suit sprung. We have the 1 Pidge v. Pidge, 3 Met. 257, 261; s. p. Smith v. Smith, 12 N. H. 80; Miller v. Miller, Saxton, 386; Butler v. Butler, 4 Litt. 201, 206 ; McCrock- lin v. MecCrocklin, 2 B. Monr. 8370; Watkinson v. Watkinson, 12 B. Monr. 210. [496 ] CHAP. XXIV.] DESERTION. § 525 divorce for desertion, instead of the proceeding to compel cohabitation. But on a broader view of the matter, when two persons have entered into marriage, neither one of them should be permitted to end practically the relation, any more than to end it theoretically; for the theoretical relation, by which is meant the legal relation from which matrimonial co- habitation does not proceed, is not a thing to be favored in the law. That which gives a legitimate offspring to the country, and feeds the future to become strong in human population, wise in intelligence, beauteous in virtue, is not the theoretical marriage, which, so far from blessing the country, prevents actual marriage; but it is the actual abiding together of those who enter into wedlock. In marriage, also, each party undertakes to overlook moral wrongs and infirmities in the other; and to continue the cohabitation, notwithstanding their existence. Suppose, then, the plaintiff, in a divorce suit for desertion, is shown to have some obliquities, how is the court to determine, whether they are such as should legally justify the defendant in quitting the cohabitation, only as the court refers the matter to the law, and inquires whether the law has made them ground for dissolving or suspending the marital relation? If each individual judge takes it into his own hand to determine, that such or such a thing will justify a desertion, the thing not being known in the law as foundation for suspending or dissolving the marriage, then does the judge convert every actual marriage, in which this thing is found, into what we have called a theoretical one. He assumes to his office what is more, and what is worse, than fully to dissolve the marriage, because of the existence of this thing. § 525. Proceeding now to look at what has been decided, let us call the attention of the reader to the cases already mentioned,! in which the courts permitted some light excuses to take off the effect, as desertion, of the wife’s refusal to fol- low the husband when he made a change of his domicil. ? Ante, § 514 6. 42* [ 497] § 525 a SPECIFIC GROUNDS OF DIVORCE. [Book v. In Ohio, to quote the language of the report: “It appeared in proof, that, in 1827 the complainant, then about years old, was married to the defendant, then about fourteen years old. She was unwilling to marry him, and said she could never love him; but, by his procurement, she was coerced into the marriage. They lived together a few months, when she left him, went to her friends in Massachusetts, and refused to live with him longer. He treated her well while they were together, and once made an effort to induce her to return; she told him she had no affection for him, and never could live with him. He was cautioned before the marriage, that he never would be happy in a marriage so procured, but per- sisted. By the Court: This man seems to have used undue and improper means to compel a child to marry him, against her own will and the advice of his friends; and now, while reaping the natural reward of his efforts, he has become dis- satisfied and desires a divorce. "Without some more and decided attempts to gain the affections of his wife, and at reconciliation, we consider it our duty to deny him a divorce. Let the bill be dismissed.”! Jn another case, however, the same court held, that the fear of having too many children will not so justify a wife in leaving her husband as to prevent him from obtaining a divorce for the desertion.2, And the North Carolina court decided, that the husband’s commission of crime does not authorize the wife to leave him; since she took him “ for better or for worse.” 8 § 525 a.. A late Alabama case holds, that a wife does not “ voluntarily leave her husband,” within the meaning of the statute, when she goes away because of his bringing against her an unfounded charge of infidelity to his bed. Said the court: “We are far from saying, that this accusation is a ground upon which the defendant could have obtained a di- vorce from her husband. However groundless and cruel, it ’ Bigelow v. Bigelow, Wright, 416. * Leavitt v. Leavitt, Wright, 719. ® Foy v. Foy, 13 Ired. 90. [ 498 ] CHAP. XXIV.] . DESERTION. § 626 was not sufficient for that purpose. But our opinion, from the evidence, is, that it was the cause of her leaving and re- maining from him unwillingly; hence, that she did not leave or remain away voluntarily, but under an unhappy necessity, which he created and continued.” The court also considered, that the English decisions as to the defences in a suit for the restitution of conjugal rights do not apply to the question we are here discussing; because, in the English suit, the defend- ant husband is admonished to treat with conjugal kindness the wife whom he is directed to receive back. § 526. But in Pennsylvania is established the plainer rule, that the “reasonable cause,” which, within the divorce statutes of the State, will justify one of the married parties in leaving the other, must be such conduct as could be made the foun- dation of a judicial proceeding for divorce. The court con- sidered, that a contrary construction would violate all true policy, render the law chaotic and uncertain, favor separa- tions, and substitute the particular opinions of the judge hap- ‘pening to preside at the trial, in the place of well-defined legal principles? Likewise it has been held by the highest court of Kentucky, that no ill conduct in the plaintiff, short of what would have constituted ground for divorce or for alimony, will so justify the defendant’s desertion as to bar the suit. In New Hampshire it was observed, that there are “ few cases” only, in which the desertion will be justified. But the court said: “We have already decided, that, where a husband horsewhipped his wife two or three times, her leaving him furnished no good cause for a divorce, notwithstanding her conduct could not be justified.” A reference to the reports 1 Hardin v. Hardin, 17 Ala. 250. And see Gray v. Gray, 15 Ala. 779. A similar doctrine seems to have been laid down in Louisiana. Naulet v. Dubois, 6 La. Ann. 408. ? Butler v. Butler, 1 Parsons, 329; Eshback v. Eshback, 11 Harris, Pa. 848, 345; Cattison v. Cattison, 10 Harris, Pa. 275. And see Vanleer v. Vanleer, 1 Harris, Pa. 211. > Logan v. Logan, 2 B. Monr. 142. “ Kimball v. Kimball, 13 N. H, 222. [499 J § 527 SPECIFIC GROUNDS OF DIVORCE. [Book v. shows the same wife to have been refused her divorce on the ground of this cruelty; because, although the husband was not justifiable, yet her conduct had been so outrageous as to bar her remedy.! So in a suit for necessaries furnished the wife, her adultery is a bar, although the husband has com- mitted adultery also. Yet, if he has condoned her adultery, he cannot defend the suit for necessaries by setting up this adultery.® § 527. There are circumstances in which the law authorizes parties to a marriage to remain away from each other for some special or temporary purpose, though no divorce fol- lows. Shepley, C. J., pronouncing judgment of divorce under this general clause, said: “ The discretionary power, conferred by the law of 1849, is extreme- ly broad, but it has limits. It is to be exercised only when conducive to domestic. harmony, and consistent with the peace and morality of society. What, then, are the cases or the classes of cases in which the power can be properly exer- cised? Suppose the case of a party, who had been for three years a common drunkard. In such a case, the law gives a right to a divorce. That law is an exposition of the discre- tion of the legislature upon the subject. Could this court set up ts discretion above that of the legislature, and decide that it would require proof of four years habitual drunkenness ? Or that it would be satisfied with proof of two years? We think the discretion of the legislature a safe standard as to every cause of divorce for which they have made provision. But there may be cases for which the former laws did not provide; such, for instance, as the coéxistence of several of the prescribed causes, though neither of them has continued so long as to be, of itself, a sufficient ground of divorce. Such 1 Elwell v. Elwell, 32 Maine, 337. * Birkby v. Birkby, 15 Ill. 120. 3 Barber v. Barber, 4 Law Reporter, n. 8. 375. * Ante, § 544. 5 Before the act of 1850, c. 171, ante, § 542. [524] CHAP. XXVI.] DIVORCE IN THE JUDGE'S DISCRETION. § 547 cases come within the discretionary power conferred by the act of 1849. For them the Revised Statutes furnish no guide, and have indicated no standard. In this case of Motley’s [the one before the court], there is a combination of wrongs ; there is habitual drunkenness ; there is extreme cruelty to- wards the libellant, so that her personal safety is endangered ; and there is desertion.” (But, by the Revised Statutes of Mainé, the second of these causes was ground only for di- vorce from bed and board; and, in the case the learned judge was considering, the first and third had not sufficiently ma- tured by time.) “ For either of these wrongs, the law makes an appropriate provision, but it is silent as to a combination of them. That combination brings the case within the stat- ute of 1849. We are, therefore, now called upon to exercise a sound discretion. Considering that there is a family of children, is this a case in which a divotce would be conducive to domestic harmony, and consistent with the peace and the morality of society? We think it is; and accordingly there must be a decree of divorce.” 1 § 547. Under this general clause also, the court may take jurisdiction over an original defect in the marriage, such as that the consent was obtained by fraud, and render a decree of nullity.2— The foregoing points are all which yet have been developed under the operation of this unusual provision. 1 Motley v. Motley, 31 Maine, 490. ; * Scroggins v. Scroggins, 3 Dev. 535; Barden v. Barden, 3 Dev. 548 ; Ritter v. Ritter, 5 Blackf. 81; Hamaker v. Hamaker, 18 1I].137; ante, § 266. [525] THE Srcr. 548, 548 a. 549-559. 560-560 c. 561-568. 569-590. 591-602 a. 603-610. 611-619 ¢. 619 d-623 b. BOOK VI. CONSEQUENCES OF DIVORCE. CHAPTER XXVII ALIMONY. Introduction. . Alimony without Divorce. The General Doctrine of Alimony. Permanent Alimony. Temporary Alimony pending the Suit. General Expositions concerning the two kinds of Alimony. The Husband’s Ability whence the Alimony proceeds. The Amount to be fixed for Alimony; namely — 611-612 6. General Views. 613-615. Temporary Alimony. 616-619. Permanent Alimony. 619 a-619 c. Considerations relating to both kinds of Alimony. Statutory Alimony on Dissolutions of Marriage. § 548. Te consequences of divorce are such as flow from the sentence, by operation of law; or flow from either the sen- tence or the proceeding, by reason of their being directly or- dered by the court, and set down of record. The latter are to be in these pages first considered. In the present chapter, we shall examine the law of alimony, whether the alimony comes from interlocutory direction of the judge during the pendency of a [ 526 J cause, or whether it is made matter of final CHAP. XXVII.] ALIMONY. §.549 decree. We shall also consider alimony as granted by the tribunals of a few of the States, on an equity suit for the sole purpose of obtaining this relief, where no divorce attends or follows. § 548 a. The matter of this chapter will be presented in the following order: I. Alimony without Divorce; II. The General Doctrine of Alimony; III. Permanent Alimony ; IV. Temporary Alimony pending the Suit; V. General Ex- positions concerning the two kinds of Alimony; VI. The Husband’s Ability whence the Alimony proceeds; VII. The Amount to be fixed for Alimony; VIII. Statutory Alimony, on Dissolutions of Marriage. I. Alimony without Divorce. § 549. As a foundation for the argument concerning whether the courts may grant alimony on other proceedings than for divorce, we shall be obliged to state, a little out of order, the general doctrine of the law of alimony. Alimony is the allowance which a husband, by order of court, pays to his wife living separate from him, for her maintenance! The 1 The following are some of the definitions of alimony, found in the books: “ Alimony, although it properly signifies nourishment or mainte- nance, when strictly taken ; yet now, in the common legal and practical sense, it signifies that proportion of the husband’s estate which the wife sues in the Ecclesiastical Court, to have allowed her for her present subsist- ence and livelihood, according to law, upon any such separation from her husband as is not caused by her own elopement or adultery.” Godol. Ab. 508. “ Alimony signifies that legal proportion of the husband’s estate, which, by the sentence of the Ecclesiastical Court, is allowed to the wife for her maintenance, upon the account of any separation from him.” Ayl. Parer. 58. “ Alimony, in its legal sense, may be defined to be that propor- tion of the husband’s estate, which is judicially allowed and allotted to a ‘wife, for her subsistence and livelihood, during the period of their separa- tion.” Ruffin, C.J., in Rogers v. Vines, 6 Ired. 293, 297. “Alimony is the maintenance or support which a husband is bound to give to his wife, upon a separation from her; or the support which either father or mother is [ 27] § 550 THE CONSEQUENCES OF DIVORCE. [Book VI. allowance may be for her use either during the pendency of a suit, in which case it is called alimony pendente Lite, or after its termination, called permanent alimony. It has no common law existence as a separate, independent right ; but, wherever found, it comes as an incident to a proceeding for some other purpose, as for a divorce; no court in England having any jurisdiction to grant it, where it is the only relief sought. § 550. “TI take it,” says Lord Loughborough, “to be now the established law, that no court, not even the ecclesiastical court, has any original jurisdiction to give a wife a separate maintenance. It is always as incidental to some other mat- ter, that she becomes entitled to a separate provision. If she applies in this court [a court of equity] upon a supplicavit for security of the peace against her husband, and it is necessary that she should live apart, as incidental to that, the chancellor will allow her separate maintenance; so in the ecclesiastical court, if it is necessary, for a divorce a mensé et thoro propter sevitiam.”2 But other authorities raise at least the doubt, whether alimony as a permanent allowance to the wife is not solely confined to suits for divorce, and whether courts of equity can grant it upon a supplicavit for security of the peace? Equity will sometimes enforce the specific bound to give to his or her children, though this is more usually called maintenance.” Strong, Senator, in Burr v. Burr, 7 Hill, N. ¥. 207. “ Ali- mony is maintenance afforded to the wife, where the husband refuses to give it, or where his improper conduct compels her to separate from him. It is not a portion of his real estate, to be assigned to her in fee-simple, subject to her control, or to be sold at her pleasure ; but a provision for her support, to continue during their joint lives, or so long as they live separate.” Mar- tin, J., in Wallingsford v. Wallingsford, 6 Har. & J. 485. See also Parsons v. Parsons, 9 N. H. 309; Wooldridge v. Lucas, 9 B. Monr. 49 ; Clark v. Clark, 6 Watts & S. 85; 1 BI. Com. 441. * Rees v. Waters, 9 Watts, 90, 93; Head v. Head, 3 Atk. 547; Lawson v. Shotwell, 27 Missis. 630, 633; Bankston v. Bankston, 27 Missis. 692. ? Ball v. Montgomery, 2 Ves. 191, 195. * Upon this point, Mr. Sumner, in a note to Ball v. Montgomery, supra, [528 J CHAP. XXVII.] ALIMONY. § 551 performance of the husband’s undertaking to pay money for the support of his wife, while the parties are living separate.! § 551. In England, during the Commonwealth, the eccle- siastical courts were abolished; and then the equity judges were expressly authorized, probably by a clause in their com- missions,? to decide causes of alimony; and, after the Restora- tion, their decrees were by statute confirmed. Accordingly it has sometimes been erroneously supposed, that these judges took cognizance of this question as belonging to their appro- priate jurisdiction, to prevent a failure of justice, simply be- cause there were no ecclesiastical tribunals, or as succeeding “if (Am. ed.,) after referring to 2 Story Eq. Jurisp. § 1422, adds: “Tt is said, however, that there is no modern instance of the exercise of this authority upon a writ of supplicavit. 2 Story Eq. Jurisp. § 1423, 1476; 2 Roper Husb. & Wife, c. 22, § 4, p. 309, note; Ib. § 5, p. 317-320; Clancy Mar. Women, b. 5, c. 1, p. 453-455. Mr. Chancellor Kent seems to have doubted, ihothna the writ ought now to be granted in Chancery, as the remedy at law was complete. Codd v. Codd, 2 Johns. Ch. 141. Mr. Justice Story adds, that it is difficult, upon the authorities, to maintain this doubt. 2 Story Eq. Jurisp. 1476, note.” The authorities cited in the remaining portion of Mr. Sumner’s note may also be consulted. 1 Angier v. Angier, 1 Gilb. Ch. 152; Head v. Head, 3 Atk. 295, 547; Watkyns v. Watkyns, 2 Atk. 96; Hobbs v. Hull, 1 Cox, 445; Wilkes v. Wilkes, 2 Dick. 791; 2 Chitty Gen. Pract. Am. Ed. 434, 435, 462, * That the express authority stated in the text was granted to the equity judges, I can refer only to Fonblanque, who, upon this point, says: “ During the time of the troubles, commissioners were appointed to whom jurisdiction was expressly given [to hear causes of alimony], and whose decrees were held to be confirmed by the act for the confirmation of judicial proceed- ings.” Again: “It is observable, that, if courts of equity had an original and concurrent jurisdiction with the spiritual courts, it would have been unnecessary to give the commissioners, during the troubles, such jurisdic- tion; and the doubt which was entertained could not have been raised, respecting the validity: of their decrees, after the act confirming judicial proceedings.” Fonb. Eq. 96, 97, note. It was so easy for an English writer to ascertain the fact, concerning this special: authority. having been conferred, or not, upon the commissioners, that it is not presumable this author is mistaken, though he seems not to have referred to the sources of his information. 45 [ 529 ] § 552 THE CONSEQUENCES OF DIVORCE. [Boox v1. to them. But obviously this could not be so; since, if the matter pertained to the equity jurisdiction properly, they would have exercised this function both before and after the usurpation, without reference to the ecclesiastical tribunals ; — for the latter never claimed this authority, what they did in the premises having been to grant divorce, and only to decree alimony as a mere incident in the divorce suit ;— and since, if they took up the jurisdiction in the time of the Common- wealth as the natural successors to the defunct ecclesiastical courts, it must have been the jurisdiction those courts had exercised, namely, to decide causes of divorce. But this they did not do; they heard suits for alimony, not for divorce.1 § 552. We have seen, that ecclesiastical judicatories were never established in this country, either in the colonies or the States.2 But in some of the colonies and States, the courts of equity have exercised the authority, not of granting di- vorces, but alimony, where the latter was the only relief prayed; and, in some of these States, perhaps also in States 1 On this subject, see Whorewood v. Whorewood, 1 Ch. Cas. 153; Oxen- den v. Oxenden, 1 Gilb. Ch. 1, 2 Vern. 493; Angier v. Angier, 1 Gilb. Ch. 152; Head v. Head, 3 Atk. 295, 547; Anonymous, 2 Show. 282; Lasbrook v. Tyler, 1 Ch. R. 44; Ashton v. Ashton, 1 Ch. R. 164; Russell v. Bodvil, 1 Ch. R. 186; Whorwood v. Whorwood, 1 Ch. R. 223; Watkyns v. Wat- kyns, 2 Atk. 96; Duncan.v. Duncan, 19 Ves. 394; Wilkes v. Wilkes, 2 Dick. 791; Foden v. Finney, 4 Russ. 428; Colmer v. Colmer, Moseley, 118; Nicholls v. Danvers, 2 Vern. 671; Williams v. Callow, 2 Vern. 752; Yeo v. Yeo, 2 Dick. 498; Hyat’s case, Cro. Jac. 364. Fonblanque says: “In Nicholls v. Danvers, 2 Vern. 671, proceedings had been had against the husband (as appears from the register’s book, though not noticed in Mr. Vernon’s Report), in the ecclesiastical court, propter sevitiam.” 1 Fonb. Eq. 96, note. See also 1 Mad. Ch. Pract. 386, note; 2 Bright Husb. & Wife, 354; Shelford Mar. & Div. 598; Reeve Dom. Rel. 209; 2 Story Eq. Jurisp. § 1422; Ayl. Parer. 59, 60; Godol. Ab. 503; ante, § 550. The American cases are cited post, § 552-554. % Ante, § 21. [ 530 ] CHAP. XXVIL] ALIMONY. § 553 where the jurisdiction was never admitted as of common law right, the right has been conferred by statutes. § 553. Thus the High Court of Chancery, in Maryland, exercised this jurisdiction, from the earliest colonial times, under the belief of its belonging to it, in the absence of ecclesiastical tribunals;? and, in 1777, a statute provided, “that the Chancellor ‘shall and may hear and determine all causes for alimony, in as full and ample a manner as such causes could be heard and determined, by the laws of England, in the ecclesiastical courts there.” Under this statute, the wife may have alimony for any cause author- izing the divorce from bed and board in England; and even, 1 Miller v. Miller, Saxton, 386; Lockridge v. Lockridge, 3 Dana, 28; Turrel v. Turrel, 2 Johns. Ch. 391. And see Mix v. Mix, 1 Johns. Ch. 108. Soin Ohio. Swan’s Stat. 294; Page on Div. 290; Jones v. Jones, Wright, 155; Hesler v. Hesler, Wright, 210; Bascom v. Bascom, Wright, 632; Questel v. Questel, Wright, 491; Wilson v. Wilson, Wright, 128; Johnston v. Johnston, Wright, 454 ; Di Aniarsont v. D’Arusmont, 4 Law Reporter, N.S. 311, 8 West. Law Jour. 548. * Helms v. Franciscus, 2 Bland, 544; Fornshill v. Murray, 1 Bland, 479 ; Macnamara’s case, 2 Bland, 566, note; Scott’s case, 2 Bland, 568, siete Govane’s case, 2 Bland, 570, note. See also Raymond’s Ch. Dig. 285. In Macnamara’s case, decided anterior to the Revolution, the defendant claimed an appeal to the Arches Court, in England; and his right to the appeal seems, on what principle it does not appear, to have been acknowledged. In the case of Galwith v. Galwith, 4 Har. & McH. 477, apparently adjudi- cated in the year 1689, the county court ordered, “ that the said John Gal- with [the defendant] take home with him his said wife Jane Galwith, to dwell with him as man and wife ought to do; or otherwise to allow and maintain her, 3,000 wt. of tobacco a year, to commence from that day.” On appeal by the defendant to the provincial court, the following errors were assigned ; namely, 1st. That the county court, upon reading the petition, without calling the said John to answer, passed judgment against him. 2d. That the said county court had no jurisdiction of the matter, being touching alimony, which is not recoverable but in chancery, or in the court of the or- dinary. 3d. That the court cannot take cognizance of matters relating to separation and divorce between man and wife, but such matters are only triable and examinable in the court of ordinary. The judgment was there- upon reversed, but we are left in doubt what was the precise ground of the reversal. [531 ] § 553 THE CONSEQUENCES OF DIVORCE. [BOOK VI. sometimes, under other cireumstances;! but the court un- derstands itself not empowered to extend the remedy, and decree a divorce also.2 In early times likewise in North Caro- lina, bills in equity by the wife against the husband, claim- ing alimony, appear to have been sustained without ques- tion as to the lawfulness of the jurisdiction.2 In one of these early cases there was a demurrer, because the suit was brought by the wife without the intervention of a pro- chein amie; but the demurrer was overruled, two precedents being cited showing the practice of the court in these suits.* The inherent jurisdiction of chancery to grant alimony is also acknowledged in Virginia in Kentucky,6 in South 1 Jamison:v. Jamison, 4 Md. Ch. 289, 295. 2 Helms «. Franciscus, and Fornshill v. Murray, supra. Whether the court would have jurisdiction aside from the statute, query. Wallingsford v. Wallingsford, 6 Har. & J. 485. And see Hewitt v. Hewitt, 1 Bland, 101; Crane v. Meginnis, 1 Gill & J. 463; Wright v. Wright, 2 Md. 429; Wiles v. Wiles, 3 Md. 1; Dunnock v. Dunnock, 3 Md.-Ch. 140. 3 Anonymous, 1 Hayw. 347; Spiller v. Spiller, 1 Hayw. 482, a. p. 1796, 1797. * Knight v. Knight, 2 Hayw. 101. 5 Purcell v. Purcell, 4 Hen. & Munf. 507; Almond v. Almond, 4 Rand. 662. In Purcell v. Purcell the Chancellor admits, that doubt and contradic- tion attend the English authorities, and so proceeds to consider the question on principle. Whereupon he lays down the following doctrine, certainly sufficiently radical, not to say novel: “TI hold, that, in every well-regulated government, there must somewhere exist a power of affording a remedy where the law affords none; and this peculiarly belongs to a court of equity ; and, as husband and wife are considered as one person in law, it is evident, that, in this case, the law can afford no remedy; which is universally admit- ted to be a sufficient ground to give this court jurisdiction ; and, therefore, it must entertain the bill.” It is by no means universally admitted, that a court of equity will take jurisdiction of a subject, simply because the common law tribunals afford no remedy. 1 Story Eq. Jurisp. § 62. ® Lockridge v. Lockridge, 3 Dana, 28. In Butler v. Butler, 4 Litt. 201, the court review the English authorities, deem them conflicting, and con- clude to follow those most consonant to reason and equity. On this ground, the judges sustain the jurisdiction; and further determine, that the statute which authorizes a decree of alimony in certain cases does not exclude their authority over cases not embraced in it, “ which have strong moral claims.” And see Toe v. Boggess, 4 Dana, 307; Wooldridge v. Lucas, 7 B. Monr. 49. CHAP. XXVIL.] ALIMONY. § 555 Carolina,! and in Alabama? So it is in Jamaica and Bar- badoes.2 § 554. But these are exceptions to the general rule, and departures likewise from principle. In some of the other States, the jurisdiction has been expressly denied; in still others, by necessary implication; and probably it could not now he established in any State where it had not already been maintained ;4 though there is some strength of argu- ment, and some apparent weight of authority, in favor of the jurisdiction. . § 555. The causes for which, where this jurisdiction is acknowledged, equity will thus decree alimony, seem not to be very clearly defined. Desertion is held to be sufficient,® especially where it has been accompanied, as it is almost ot necessity, with a total neglect to provide for the wife.6 So is cruelty an adequate cause; but it must have proceeded to the extent necessary to authorize an ecclesiastical tribunal to separate the parties from bed and board.’ And the wife who 1 Jelineau v. Jelineau, 2 Des. 45; Prince v. Prince, 1 Rich. Eq. 282; Threewits v. Threewits, 4 Des. 560; Prather v. Prather, 4 Des. 33; Matti son v. Mattison, 1 Strob. Eq. 387. 2 Glover v. Glover, 16 Ala. 440. 5 1 Burge Col. & For. Laws, 660; 2 Burn Ec. Law, Phillim. ed. 5005 Shelford Mar. & Div. 368. As to Rhode Island, see Battey v. Battey, 1 R. I. 212 * Fischli v. Fischli, 1 Blackf. 360; Peltier v. Peltier, Harring. Mich. 19; Rees v. Waters, 9 Watts, 90, 93; Pomeroy v. Wells, 8 Paige, 406; Parsons v. Parsons, 9 N. H. 809; McGee v. McGee, 10 Ga. 477; Doyle v. Doyle, 26 Misso. 545, 549; Yule v. Yule, 2 Stock. 138. And see post, § 560, 561, 569. 5 Prince v. Prince, 1 Rich. Eq. 282, 287; Wiles v. Wiles, 3 Md.1; Jami- son v. Jamison, 4 Md. Ch. 289. On the other hand, mere abandonment has been thought insufficient; the husband must also refuse either to live with his wife or contribute to her maintenance. Logan v. Logan, 2 B. Monr. 142. : * Purcell v. Purcell, 4 Hen. & Munf. 507; Butler v. Butler, 4 Litt. 2025 Colmer v. Colmer, Moseley, 118. ‘And see Battey v. Battey, 1 R. I. 212. 1 Taylor v. Taylor, 4 Des. 167; Jelineau v. Jelineau, 2 Des. 45; Anony- : 45* [ 533 J '§ 555 THE CONSEQUENCES OF DIVORCE. [Book VI. relies on ill-usage by her husband must show her own con- duct to have been correct,! though it need not have been entirely blameless. Indeed it seems to have been consid- ered, what is probably the true view, that the equity court should require the same causes, which, in England, would justify the ecclesiastical in either separating the parties from bed and board, or decreeing a restitution of conjugal rights.? Yet adultery alone, according to some judicial views, seems insufficient to lay the foundation for alimony, if the husband will agree to cohabit with his wife, and treat her well. Where adequate cause for alimony was not shown; but the complaining wife had left her husband, and he mani- fested a determination not to receive her back; and there was a settlement of the estate which was hers before the marriage, by which settlement “the rents and profits of it were to accrue to the defendant and complainant during their joint lives, he to be entitled to take the same;” and the defendant at first offered, in his answer, to divide these rents and profits equally with her,—the court would not after- ward, while he would not agree to accept of her return, allow him to withdraw the offer In Maryland and Tennessee the courts have intimated, that, in a proper case, after a legisla- tive divorce, there may be a judicial decree for alimony to mous, 4 Des. 94; Almond v. Almond, 4 Rand. 662; Lockridge v. Lock- ridge, 3 Dana, 28; Glover v. Glover, 16 Ala. 440. And see ante, § 456, note. 1 Anonymous, 4 Des. 94; ante, § 491. Also it was observed in Kentucky, that, “ although a wife not entitled to a dissolution of the conjugal relation may be entitled to alimony, according either to our statute or the common law, yet a wife who has voluntarily abandoned her husband should not have a decree for her separate maintenance, unless her abandonment of him was, without her fault, rendered necessary for her safety or happiness, and was consistent with social order and public policy.” Boggess v. Boggess, 4 Dana, 307. 2 Griffin v. Griffin, 8 B. Monr. 120. 3 Rhame v. Rhame, 1 McCord Ch. 197. And see Helms v. Franciscus, 2 Bland, 544; ante, § 553. * Prather v. Prather, 4 Des. 33; post, § 557 and note. 5 Anonymous, 4 Des. 94. [ 534 ] CHAP. XXVII.] ALIMONY. ‘§ 557 the wife! But this doctrine seems not to be distinctly founded on either reason or authority ;? though the question is not absolutely clear. § 556. The doctrine, that the confession of a defendant can- not be accepted as alone establishing the cause against him, in a suit for divorce, has already been considered.? The same doctrine should probably apply to the alimony suit, now un- der examination. For, though the question, whether the judgment against the defendant is sufficient to establish the marriage, as in a divorce suit, so that ever afterward it must be regarded as res adjudicata, may be an open one; and though, possibly, not certainly, the effect of this decree upon the status of children afterward born may be different from that of a decree of separation from bed and board, — yet, even if there is a difference on these points, the judgment still relates to" the same question of marriage or no marriage; of dwelling together by married persons, or living separate; of placing the parties beyond the inducements, at least, to live in actual matrimony, or drawing them closer into this union ; whence the rule of esteeming the public to be a party, and therefore of requiring proof of all the facts in issue, has sprung. Yet a case of this kind has been heard’on bill and answer alone; where, however, the attention of the court was not directed to the point.* § 557. The decree cannot be for a separation, which would be equivalent to a divorce from bed and board, the court hav- ing no power to grant such a divorce ;° but only for a sepa- rate support to the wife, while the parties remain separate.é Crane v. Meginnis, 1 Gill & J. 463; Richardson v. Wilson, 8 Yerg. 67, ? See post, § 567, 568. 3 Ante, § 305 et seq. * Codd v. Codd; 1 Bland, 101, note. And see Hewitt v. Hewitt, 1 Bland, 101; Wallingsford v. Wallingsford, 6 Har. & J. 485 ; ante, § 315, note. 5 Jelineau v. Jelineau, 2 Des. 45. * Anonymous, 2 Des. 198; Hewitt v. Hewitt, 1 Bland, 101. [ 535 ] § 558 THE CONSEQUENCES OF DIVORCE. [BOOK VI. It is usually expressed, that the husband pay the alimony named therein, till he will agree to take back his wife, and treat her with conjugal kindness and affection! Even ina case where the husband was on terms of adulterous inter- course with other women, the final order of the court directed, that he “pay her one hundred dollars per year during the term that they shall live separate and apart, or until he shall agree to cohabit with her, and treat her as it becomes a man to treat his wife.” And an original bill may be maintained to set aside, for proper cause, a decree for alimony.3 § 558. In one case, the final adjudication provided, that the defendant give bonds to keep the peace toward his wife ; and then directed, that he convey certain property to trustees for her use; but this latter part received the consent of his counsel, and the case does not clearly show, whether it would have ,been ordered, if objection to it had been made.* It seems, however, that, even with the consent of the parties, the court cannot make a valid order out of the common course of its jurisdiction; such as to substitute something else for alimony, like a sale of the husband’s lands; and thereby accomplish any purpose which the parties could not reach by agreement, without judicial interposition.’ And it has been considered, in Virginia, as. plainly it follows from general principles, that the court cannot, on a bill of this kind, make any decree operating upon specific property ; it must be for alimony. It has been held, on the authority of * Rhame v. Rhame, 1 McCord Ch. 197; Purcell v. Purcell, 4 Hen. & Munf. 507. See Slack v. Slack, Dudley, Ga. 165; Head v. Head, 3 Atk. 547. * Prather v. Prather, 4 Des. 33. This absurdity seems necessarily to re- sult from the fact, that the court has no power to decree a separation. See post, § 561. 3 Whorewood v. Whorewood, 1 Ch. Cas. 153. * Threewits v. Threewits, 4 Des. 560. 5 Wallingsford v. Wallingsford, 6 Har. & J. 485. And see ante, § 301. S Almond v. Almond, 4 Rand. 662. And see Purcell v. Purcell, 4 Hen. & Munf. 507; Wallingsford v. Wallingsford, 6 Har. & J. 485. [ 536 ] CHAP. XXVII.] ALIMONY. § 560 an English decision,! that, if the husband declares his inten- tions to abandon his wife, and to sell the property he got of her by the marriage, and carry off the proceeds, the Court of Chancery will restrain him, and compel him to convey it to trustees for the use of both the parties, with proper limita- tions.? § 559. The suit for alimony abates with the death of either party. No bill of revivor can arrest this consequence ; and, if the wife has neglected to bring her suit against the husband during his lifetime, she cannot, after his death, pro- ceed against his estate in the hands of his, executors or ad- ministrators.? Il. The General Nature of Alimony. § 560. In some preceding sections * were given a definition of alimony, and some views concerning it. The doctrine of alimony springs up necessarily from the soil of our law, in consequence of the peculiar property relation which it estab- lishes between husband and wife. Upon the marriage, the husband has vested in him all the present available means of the wife, together with the right to claim her future earnings and acquisitions. At the same time,' the law casts upon him 1 Gardner v. Walker, Stra. 503. 2 Greenland v. Brown, 1 Des. 196. > Anonymous, 2 Des. Eq. 198; Gaines v. Gaines, 9 B. Monr. 295. And see Wallingsford v. Wallingsford, 6 Har. & J. 485; Glenn v. Glenn, 7 T.B. Monr. 285; Lawson v. Shotwood, 27 Missis. 630; Sackett v. Giles, 3 Barb. Ch. 204. * Ante, § 549, 550. 5 Judge Story observes, that it is only in respect of the husband’s duty to maintain his wife, that the law gives him her fortune. 2 Story Eq. Jurisp. § 1419. His duty to maintain her, however, is impaired neither by the fact of his receiving no fortune with her, nor by an antenuptial contract in which each party renounces allright to the property of the other, accruing by the operation of the law upon the marriage. When such a contract exists, the husband is still obliged to aliment the wife, on a divorce, unless [ 587 ] § 5606 THE CONSEQUENCES OF DIVORCE. [Book VI. the duty suitably to maintain his wife, according to his ability and condition! He cannot abandon this duty; but, when the law in any case judges that she may live apart from him, for her protection, in consequence of his wrong-doing, it must also judge, that he shall maintain her while so living. 560 a. From the general doctrine mentioned in the last section, we deduce the several secondary doctrines, to be stated in the present chapter. Let us proceed with them in the order already indicated. But before so proceeding, let a few general enunciations of legal truth be made; since they will serve as guides to the reader over the following paths, otherwise apparently a little obscure at some points. § 560 b. When once a marriage is duly solemnized, each of the married parties has acquired certain legal rights, as respects the other, not to be forfeited unless for some breach of matri- monial duty. And when an erring one has broken the matri- monial engagement, the law gives to the innocent party such redress as the nature of the case, and the constitution of the tribunal, allows. Suppose, for example, a husband has com- her separate estate is sufficient. Logan v. Logan, 2 B. Monr. 142, 149. But in the case of such a contract, let it be observed, the wife is still under the general obligation of law to serve her husband; and her earnings, subse- quent to the marriage, are his property. 1 Miller v. Miller, Saxton, 386; 2 Story Eq. Jurisp. § 1424. “ Nor had he the right to say, that she should earn what she could by her labor, and he would only be answerable for the difference between her earnings and the amount of the expense necessary for her support. Such is not the law of husband and wife. The husband must support his wife himself, or pay those who do support her in a reasonable manner.” Cunningham v. Irwin, 78S. & R. 247. It seems to me, that neither branch of this statement is pre- cisely accurate. The husband may require his wife to contribute her exer- tions for the common benefit, according to his pecuniary condition and station, and the customs of the society in which the parties move ; but, when she has done this, her earnings are in law his, and from the common fund he is bound, therefore, not to contribute to her support, but to support her. And see Prince v. Prince, 1 Rich. Eq. 282; Callahan v. Patterson, 4 Texas, 61, 66. [ 538 ] ae CHAP. XXVILJ] ALIMONY. § 561 mitted adultery, the court can neither watch him during all his after-life to. prevent his repeating the offence, nor wipe out from his nature the stain which the sin has imparted, nor take off the weight of sorrow from the mind of the wife; but, if she chooses not to overlook the transgression, it can compel him to do for her what the marriage gave her the right to demand, of pecuniary support. § 560 c. Another proposition is, that, while the marital re- lation subsists in law, the legal rights which the law-vests in the parties respectively to the property of each other, in the case of survivorship after the death of one of them, remain. And though, in consequence of breaches of matrimonial duty, the deceased one had been divorced from bed and board, still there was no need for the court, on decreeing the divorce, to give, unless it chose, to the innocent one, any support beyond what such one would have received in cohabitation. Yet on the other hand, suppose the court, having a discretion in the premises, went beyond this point, and gave her more, still the excess should be regarded merely in the light of a slight rec- ompense in damages for the injury sustained. Ill. Permanent Alimony. § 561. From what has already been said it follows, that, as a general proposition, a decree for separation, in favor of the wife, must be attended, if she asks it, by a decree for alimony.1 And upon the same principle rests the better and general doc- trine, already discussed,? that no court can grant alimony when it is the only thing sought; because, in the nature of the case, an adjudication allowing the wife to live separate from the husband is a necessary foundation for an adjudica- tion compelling him to pay her a separate support. His or- 1 See Frankfort v. Frankfort, 4. Notes Cas. 282; Poynter Mar. & Div. 259. , 2 Ante, § 550-554, : [ 539 J § 562 THE CONSEQUENCES OF DIVORCE. [Book VI. dinary duty is to maintain her in cohabitation with him, not otherwise ; and the court cannot adjudge him obligated to do it in separation, until it adjudges that she may live separate. And if it’ has no jurisdiction over the one question, it can have none over the other; unless possibly ! to decree alimony where a divorce has already been pronounced by some other tribunal. Upon the same principle rests the legal liability of the husband to pay any third person for necessaries which him- self has refused to provide ;? but here, as the wife is not a party to the suit, the adjudication can extend no further than to control the particular case. And as no decree comes from this suit, giving her any general claim to be supported by third persons at her husband’s expense, no need is there of a decree giving her any right to abandon the ordinary duties attendant on matrimonial cohabitation. In short, the doc- trine extends through the entire field of our law, as ad- ministered alike in the common law, equity, and ecclesias- tical tribunals, that, in effect, whenever the wife is adjudged entitled to live separate from the husband, by reason of his breaches of matrimonial duty, a concurring adjudication must be pronounced, that he support her while so living; the one adjudication being commensurate in extent with the other, and neither one existing without the other. § 562. But where, in consequence of a settlement, or other- wise, the property of the wife has been kept in her hands, and has not vested in her husband, and her own estate is fully equal to what she can justly demand from the common fund, the reason for allowing her this kind of support fails, and she is not entitled to it. If her estate is partly adequate, it goes so far to reduce her claim.2 The same rule applies where a 1 See ante, §555; post, § 567. 2 See ante, § 529 a. ® Street v. Street, 2 Add. Ec. 1, 2 Eng. Ec. 195; Whispell v. Whispell, 4 Barb. 217; Otway v. Otway, 2 Phillim. 109, 1 Eng. Ec. 203; Logan v. Logan, 2 B. Monr. 142; Cooke v. Cooke, 2 Phillim. 40, 1 Eng. Ec. 178; [ 540 ] CHAP. XXVII.| ALIMONY. § 563 wife has been voluntarily provided, by her husband, with a separate maintenance; if it is adequate, she is entitled to nothing further ; if it is not adequate, the court will decree to her such alimony as shall make up tke deficiency.! But if, subsequently to the marriage, money has been invested by the relatives and friends of the wife to her sole and separate use, the case seems perhaps to stand upon a somewhat different principle. It has accordingly been held in England, con- firmed by the court of last appeal, that, in estimating the amount of alimony to be allowed a ‘wife upon a divorce for cruelty, a deduction from the amount otherwise allowable will not be made in respect of money left by wills, since the marriage, to the wife’s separate use. In the same case, the court refused also to make any deduction on account of the wife’s salary of £500 a year as a lady-in-waiting to the Queen. The reason of the last refusal, however, was because the salary was not permanent as a source of income, and be- cause the amount of it was equalled by the expenses of the office entailed upon the possessor. But the Court of Privy Council, overruling the Arches Court, did allow a deduction in respect of a pension, of £400 a year, which, during the pendency of the suit, the king had granted the wife? § 563. From the foregoing principles it follows also, that no decree for alimony can be based on a decree declaring a marriage void ab initio, whether the marriage were a void one, or voidable “What, in the absence of statutory provis- - Holmes v. Holmes, 4 Barb. 295 ; Wright v. Wright, 6 Texas, 29; Methvin v. Methvin, 15 Ga. 97; post, § 572. And see Dixon v. Hurrell, 8 Car. & P. 717. 1 Gaines v. Gaines, 9 B. Monr. 295; Rose v. Rose, 11 Paige, 166. And see Coles v. Coles, 2 Md. Ch. 341. 2 Westmeath v. Westmeath, 3 Knapp, 42. See Holmes v. Holmes, 4 Barb. 295; Thompson v. Harvey, 4 Bur. 2177. 2 Godol. Ab. 508, 509; Bird v. Bird, 1 Lee, 621; Fischli v. Fischli, 1 Blackf. 360. And see Bartlett v. Bartlett, 1 Clarke, 440. The ecclesiastical courts, however, on pronouncing such a decree, have given to the woman a specific sum, under the name of costs or expenses of the proceeding. Thus 46 [541] § 563 THE CONSEQUENCES OF DIVORCE. [Book VI. ions, would be the duty of a court as to alimony on dissolv- ing a valid marriage, for the husband’s post-nuptial offence, so that the relation of husband and wife could no longer be recognized as existing, is a question which could not arise in the English law, as brought into this country by our ances- tors; no court in England having had, previous to the year 1858, jurisdiction to dissolve a valid marriage. Neither could the question often arise in this country; because generally the statutes of the States authorize a decree of alimony, or of division of the property, or both, to attend a divorce dissolving the marriage.1 But it was held in Massachusetts, where the point was not expressly controverted or discussed, that the court could not, in the absence of direct statute authority, append a decree for alimony to a decree dissolving the mar- riage; and such a decree having been entered, and an action of debt? having been brought upon it, the defendant was where the husband brought his suit for the restitution of conjugal rights, but failed by reason, that the marriage was illegal, whence a decree was made against its validity, Lord Stowell observed: ‘ Under the particular circumstances of this case, in which there is no doubt that a marriage was had freely and voluntarily, and that this affair has been prejudicial to Miss Jones, who is a lady of good character, I shall, agreeably to precedent, give asum to her nomine expensarum, and fix it at 4007.” Scrimshire «. Scrim- shire, 2 Hag. Con. 395, 4 Eng. Ec. 562,574. Where, however, a wife brought against her husband a suit for nullity of marriage, on the ground of incest, and it appeared the parties were equally guilty, she having been told beforehand the marriage would be illegal, and an endeavor having been made to dissuade her from it, Sir John Nicholl, pronouncing the marriage void, still refused costs to her. Aughtie v. Aughtie, 1 Phillim. 201, 1 Eng. Ec. 72. The Chancellor of New Jersey, in Zule v. Zule, Saxton, 96, seemed to consider the doctrine stated in the text, not to be fully settled; and raised the query, whether the court, declaring a nullity by reason of a pre- existing marriage, could give alimony; but inclined to the opinion it could not. 1 See Fischli v. Fischli, supra. * The Massachusetts court has since decided, that the proper form of pro- ceeding to enforce a decree for permanent alimony is scire facias. Morton v. Morton, 4 Cush. 518. This is a point upon which the practice in the sev- eral States differs. And see Lyon v. Lyon, 21 Conn. 185. [ 542 ] CHAP. XXVII.] ALIMONY. § 564 permitted to take advantage of the error by pleat So, in Pennsylvania, the courts do not, unless by recent statute, allow alimony on the divoree from the bond of matrimony ; and, where it has been awarded on a divorce from bed and board, it ceases on a subsequent decree dissolving the mayr- riage.” § 564. It moreover follows from these principles, that, where the wife is the offender, she cannot have alimony on a divorce decreed in favor of the husband. So long as he has committed no breach of marital duty, he is under no obliga- tion to provide her a separate maintenance; for she cannot claim it on the ground of her own misconduct. Yet when we look at this point, not in the light of strict legal principle, but in the light of that merciful consideration for human frailty to which the merciful mind is prompted, we are led to the conclusion, that, in some cases, the weight of justice presses too heavily upon the frail woman whom it thus, de- priving her of the means of an honest livelihood, forces ’ Davol v. Davol, 13 Mass. 264. See Jones v. Jones, 18 Maine, 308; Dean v. Richmond, 5 Pick. 461. But see Holmes v. Holmes, 4 Barb. 295; Crane v. Meginnis, 1 Gill & J. 463; Richardson v. Wilson, 8 Yerg. 67. 2 Blaker v. Cooper, 7 8. & R. 500; Smith v. Smith, 38. & R. 248. See also Parsons v. Parsons, 9 N. H. 309; Tewksbury v. Tewksbury, 4 How. Missis. 109. In Michigan, alimony is granted as well on divorces from the bond of matrimony, as on separations from bed and board. Sawyer v. Saw- yer, Walk. Mich. 48, 53. So itis eenorally by the statute law of the Ameri- can States. ® Godol. Ab. 508; 3 Bl. Com. 94; Palmer v. Palmer, 1 Paige, 276; 2 Chitty Gen. Pract. Am. ed. 462,463. “This alimony, in strictness of law, being a duty properly due from the husband to the wife during her cohabi- tation with him, the canon law «ays, that, if she does, without any default of his, of her accord, depart from him, he shall not be obliged to allow her ali- mony during such. her wilful desertion of him, though she be not charged with adultery, and though he had a considerable dowery with her. But if she departs from her husband through any default of his, as on the account of cruelty and the like, then he shall in that case be compelled to allow her alimony, though he had no dowery with her; for the law deems her to be a dutiful wife as long as the fault lies at his door.” Ay]. Parer. 58. [543 ] § 565 THE CONSEQUENCES OF DIVORCE. [BOOK VI. into prostitution, while she may have repented of her for- mer error, and sought earnestly after the paths of virtue. The English Parliament had a practice, in granting divorces from the bond of matrimony to the husband, of always requir- ing him to make some provision for his discarded wife And Chancellor Walworth, in decreeing, in favor of the hus- band, a separation from bed and board, on the ground of the wife’s cruelty, said he should give her alimony if it were in his power, and recommended the husband to accord it volun- tarily2 § 565. But however strongly the equities of particular cases may press, we may doubt the expediency of giving, as a general rule, alimony to the wife divorced for her own fault. Doubtless in particular cases mercy to her would require it should be done.t In some of our States, the courts have a statutory discretion to make her, when the judges deem wise, an allowance of alimony, or some other pecuniary provision, out of the husband’s estate. Such a statute exists in Illinois; authorizing the court which pronounces the di- 1 So in Sheafe v. Sheafe, 4 Fost. N. H. 564, 568, Eastman, J., remarks : “Tt is not too much to suppose, that there are those who would enter into the marriage relation solely with the view of possessing themselves of the property of their wives ; and who would readily sacrifice their virtue, if by so doing they could break up the marriage contract, and at the same time retain the property of which they had gained possession. Nor is it too much to suppose, that a weak-minded woman might become the victim of an artful and unprincipled husband ; and yet in such a way that it would be impossi- ble to produce any evidence implicating him in her fall. To cast such a woman destitute upon the world would be doing the grossest injustice, and at the same time be rewarding the most infamous iniquity.” 2 3 Law Reporter, 219. ‘ And for this most just, humane, and moral rea- son, that she may not be driven by want to continue in a course of vice.” Best, J., in Jee v. Thurlow, 4 D. & R.11,17. In Massachusetts, under the provincial system, when in a certain instance the governor and council granted to a husband a divorce from his wife for her adultery, they made her no allowance out of his estate. Gage v. Gage, 2 Dane Ab. 809, A. D. 1782. 8 Perry v. Perry, 2 Barb. Ch. 311. 4 See Fry v. Fry, 7 Paige, 461, 463. [544 J CHAP, XXVII.] ALIMONY. § 566 ° vorce, dissolving the marriage, to make such order concerning the custody of the children and support of the wife as may seem fit, reasonable, and just; and, in one case, the guilty wife had both alimony and the custody of the only child of the marriage decreed to her;! no bad speculation, if she had become weary of the society of her husband, or had conceived a passion to torment him. There is an Ohio case, wherein alimony was allowed to the defendant wife on a divorce for her adultery; no sufficient evidence appearing of but one criminal act, and there being hope she might be reclaimed. The property of the husband had been earned, after the marriage, by the joint efforts of the two parties. The court said, the wife “must not be turned out to prostitution and starvation.”2 And in several other States are statutes under which the courts have decided, that the guilty wife, on'a divorce, is entitled to alimony, or a share of the husband’s estate? § 566. In Alabama it has been held, that, when a wife sues in equity for a divorce from the bond of matrimony, not claim- ing alimony of her husband, and he, in his answer, asks for an allowance by reason of his having paid debts of hers, contracted before marriage, this prayer of his, thus brought forward, cannot be granted by direct adjudication. If the court could thus attend at all to it, the way of bringing it forward must be by cross-bill. Still where the husband had made a settlement to the separate use of the wife and her children by a former marriage, the judges would not grant her the relief she sought, unless she would execute a reconvey- ance to him of the property embraced in the settlement.+ + Reavis v. Reavis, 1 Scam. 242. 2 Dailey v. Dailey, Wright, 514. * Pence v. Pence, 6 B. Monr. 496; McCafferty v. McCafferty, 8 Blackf. 218; Gaines v. Gaines, 9 B. Monr. 295, 303; Richardson v. Wilson, 8 Yerg. 67; Lovett v. Lovett, 11 Ala. 763°; Sheafe v. Sheafe, 4 Fost. N. H. 564; post, § 626, 627. . * Oliver v. Oliver, 5 Ala. 75. 46* [545] § 567 THE CONSEQUENCES OF DIVORCE. [Book VI. § 567. It has been held in Mississippi, that, although the usual practice is to proceed for a divorce and for alimony by one bill, and have them awarded at one time, yet a party need not so proceed; but, if the question of alimony is not settled in the divorce suit, the wife may afterward sue for it by separate bill, either in the same court, or any other of com- petent jurisdiction! Concerning this point we may observe, that, without doubt, there is no necessity for the decree of di- vorce and of alimony to be rendered simultaneously; but there is reason for question, whether, according to the general doctrine, alimony can be granted otherwise than in the suit in which the divorce is pronounced. The better opinion ap- pears to be, that the English chancery has no power to enter- tain a bill for alimony, as supplemental to a parliamentary divorce; and the Supreme Court of Indiana, with great ap- parent force of reasoning, maintained, that it could not inter- fere to give a wife, divorced in Kentucky, alimony out of the husband’s lands situated in Indiana, neither could it make a division of them in her favor; although the Kentucky court, on pronouncing for the divorce, had held, contrary to the cur- rent of authority, that it was not authorized to take them into its consideration in assigning to the wife her share of the property. The party, having the right to litigate the question in one suit, could not, the Indiana court considered, bring it forward in another? In a like case, however, the tribunals of Ohio would take the jurisdiction by force of a statute; at least, if the bill in Ohio were brought at the same time with the bill for divorce in the other State And there may be like provisions elsewhere in this country. * Shotwell v. Shotwell, Sm. & M. Ch. 51; Lawson v. Shotwell, 27 Missis. 630, 635. And see Lyon v. Lyon, 21 Conn. 185; post, § 568. 2 Fishli v. Fishli, 2 Litt. 337. * Fischli v. Fischli, 1 Blackf..360. But see Crane v. Meginnis, 1 Gill & J. 463. And see post, § 628, 629. * D’Arusmont v. D’Arusmont, 4 Law Reporter, n. s. 311, 8 West. Law Jour. 548. [ 546 J CHAP. XXVII.] . ALIMONY. § 569 § 568. In Tennessee, a man got from the legislature, on petition, a special act passed divorcing him from his wife, yet containing the provision, that nothing therein should deprive the wife “of her right to alimony, if by law she is entitled to the same.” A general. statute of the State had already de- clared, that “it shall be the duty of the court, in making up their decree, to decree to the wife so divorced such part of the real and personal property as they shall think proper, consis- tent with the nature of the case, and shall appoint three free- holders to make partition accordingly.” Thereupon she filed her bill for alimony, and she was permitted to recover it. The court considered, that, by the statute last quoted, she was entitled to the alimony, whether. she was the guilty or the innocent party, and the court would take up the question where the legislature laid it down, and proceed to the end. The opinion contained also the further intimation, that the same thing would have been done if there had been no such proviso in the divorce bill; moreover, that the right of the wife to a support from her husband was a constitutional right, which the legislature could not take away by a divorce bill, passed, as this was, ex parte, and without notice to her, even supposing it be effectual, as against her, to dissolve the marriage itself. IV. Temporary Alimony pending the Suit. a: “§ 569. When a suit is pending for divorce from bed and board, or from the bond of matrimony, or for declaring a marriage duly solemnized void from the beginning, it is _ legally improper for the parties to live in matrimonial cohabi- tation, whatever is to be the result of the suit Even if the husband offers to support the wife in his own house, with separate beds, she should not accept the offer? Therefore 1 Richardson v. Wilson, 8 Yerg.67. Ante, § 37, 555, 567. 2 Ante, § 527. ® Sykes v. Halstead, 1 Sandf. 483. [ 547] § 569 THE CONSEQUENCES OF DIVORCE. [Book VI. the single fact, that the suit is pending, is, on the principles already laid down} alone sufficient to entitle the wife, who has no adequate means of her own, be she plaintiff or de- fendant, to alimony during its pendency? It is not ordinarily so while other judicial controversies are going on between husband and wife; for those other controversies do not usu- ally render cohabitation improper, but this controversy always. does. Yet when, for any purpose, such a suit between hus- band and wife is pending as renders cohabitation improper, according to what appears to be a doctrine of the courts, though not very distinctly laid down, and not very firmly established in precedent, — the wife is to have some allowance for her separate support, made her by order of the court, out of the husband’s property. Thus where she was seeking to. enforce against him an agreement to pay her a separate main- tenance; and he offered and expressed his wish to cohabit with her, but she had exhibited articles of peace against him, and had him under recognizance for good behavior; Lord Hardwicke said, this was “an excuse, at least, for keeping from him for some time, till their passions might be supposed to subside, and they had a prospect, from the interposition of friends, to live happily together ;” and so he ordered him to pay her a gross sum, observing: “This is not making a decree, as has been said, before the hearing, but only doing what the husband himself is obliged to do, maintain the wife till the cause is heard upon the merits; and what I say now is abstracted entirely from any decree the court may think proper to make, if there should not then appear to be a foun- dation for the agreement set up by the bill.”8 The allowance 1 Ante, § 359, 560, 561. 2 Jones v. Jones, 2 Barb. Ch. 146; Story v. Story, Walk. Mich. 421; Shelford Mar. & Div. 533, 586; Wilson v. Wilson, 2 Hag. Con. 203; Burrill Law Dict. tit. Alimony ; 2 Chit. Gen. Pract. Am. ed. 463; Ayl. Parer. 59; Oughton, tit. 206. 3 Head v. Head, 8 Atk. 295. See also D’Arusmont v. D’Arusmont, 8 West. Law Jour. 548, 4 Law Reporter, N.s. 311; Yeov. Yeo, 2 Dick. 498; Dick- enson v. Mavie, 2 Ib. 582; Perishal v. Squire, 1 Ib. 31. [548 ] CHAP. XXVII.] ALIMONY. § 571 was not a standing, periodical one, under a general order, as alimony usually is; because it might'be proper for the parties, before the termination of the suit, to come together again ; whereas, in proceedings for divorce, a reunion can never be proper until the cause isended. And if this doctrine cannot be laid down as so distinctly established in authority as we might wish, the reason perhaps is, that the cases for its application, outside of the divorce laws, are rare. § 570. As, however, the right to alimony can result only from the marital relation, a fact of marriage between the par- ties must be admitted or proved, before there can be a decree even for alimony pendente lite. So also must the faculties, or ability, of the husband be admitted or proved; this being essential in fixing the amount of alimony.” _§ 571. Upon the same principle, the husband, who has all the money, while the wife has none, is bound to furnish her, whether plaintiff or defendant, with the means to defray her expenses in the suit; otherwise she would be denied justice For if she undertakes to sustain any of these expenses, as to pay counsel, she is not liable on this undertaking, even though a divorce from the bond of matrimony follows ; unless, subse- 1 Post, § 579 et seq.; Miles v. Chilton, 1 Robertson, 684; Smyth ». Smyth, 2 Add. Ec. 254, 2 Eng. Ec. 293; Purcell v. Purcell, 4 Hen. & Munf. 507; Durant v. Durant, 1 Add. Ec. 114, 2. Eng. Ec. 48; McGee v. McGee, 10 Ga. 477, 488. It is so also in Scotland. Campbell v. Sassen, 2 Wilson and Shaw, 309; Browne v. Burns, 5 Scotch Sess. Cas. n. 8. 1288; 1 Fras. Dom. Rel. 438. * Butler v. Butler, 1 Lee, 38; Goodall v. Goodall, 2 Lee, 264, 6 Eng. Ec. 119; Thornberry v. Thornberry, 2 J. J. Marshall, 322; Jelineau v. delineau, 2 Des. 45; Wright v. Wright, 3 Texas, 168, 179. ® D’Aguilar v. D’ Aguilar, 1 Hag. Ec. 773, 3 Eng. Ec. 329, 338; Belcher v. Belcher, 1 Curt. Ec. 444, 6 Eng, Ec. 372; Story v. Story, Walk. Mich. 421; Holmes v. Holmes, 2 Lee, 90, 6 Eng. Ec. 49; Fitzgerald v. Fitzgerald, 1 Lee, 649, 5 Eng. Ec. 472; Bird v. Bird, 1 Lee, 572, 5 Eng. Ec. 455; Daiger v. Daiger, 2 Md. Ch. 335; Coles v. Coles, 2 Md. Ch. 341; Tayman -v. Tayman, 2 Md. Ch. 393. [ 549 J § 571 THE CONSEQUENCES OF DIVORCE. [Boo VI. quently to the divorce, she renews her promise of payment." Neither is the husband liable to the legal adviser whom she may employ, either in prosecuting or defending a divorce suit.? This at least is the general doctrine, certainly as applied to divorces from the bond of matrimony. But in a late English case, the proctor of the wife was said by the judges — for he was not permitted to recover under the facts appear- ing — to be authorized to claim of the husband his fees for prosecuting against him a suit for divorce from bed and board on the ground of cruelty, even though the suit did not succeed, provided reasonable cause existed for instituting it and carrying it on.2 The case of a divorce suit from the bond of matrimony is different from this; and it, perhaps this 1 Wilson v. Burr, 25 Wend. 386; Viser v. Bertrand, 14 Ark. 267. 2 Wing v. Hurlburt, 15 Vt. 607; Dorsey v. Goodenow, Wright, 120; Shelton v. Pendleton, 18 Conn. 417; Coffin v. Dunham, 8 Cush. 404; McCullough v. Robinson, 2 Cart. Ind. 630; Williams v. Monroe, 18 B. Monr. 514; Johnson v. Williams, 3 Greene, Iowa, 97. During the pen- dency of a wife’s bill for divorce, because, among other things, the husband was a lunatic, an order was made by the court that he pay her for the support of herself and children $1,000 per year, until the final settlement of the cause, and execution was issued ; but before it was collected he was restored to reason, and the parties came into court and had the bill dismissed. And it was held, that an action of assumpsit would lie against the husband, to recover a sum of money due for the education of the children, on a contract made by the wife, pending the divorce suit. Harris v. Davis, 1 Ala. 259. As to the husband’s liability for the board of his wife’s witnesses, see Graves v. Cole, 7 Harris, Pa. 171. ‘ * Brown v. Ackroyd, 34 Eng. L. & Eq. 214, 217, Lord Campbell, C. J., say- ing: “ A wife has authority to pledge her husband’s credit for the costs of a di- vorce suit where there are reasonable, as well as where there are absolute, grounds for instituting the suit. Under such circumstances the suit would be necessary and fit for the wife’s protection, and she would be authorized to employ a proctor, and her husband would be liable for his fees. It has been determined in Grindell v. Godmond, that, if the wife dicts her husband for an assault, he is not liable for the costs of the prosecution ; and rightly so, because that is not a proceeding for her protection, but for the punishment of the husband. Buta divorce a mensd et thoro on the ground of cruelty is a proceeding for her protection; and, ‘as she has no property of her own, she can have no redress unless she is able to pledge her husband’s credit. [ 550 J CHAP. XXVIL | ALIMONY. § 572 also, is unlike the case of the wife’s exhibiting articles of peace against her husband; for there he is holden to her at- torney, provided the proceeding was necessary for her safety.1 But it is never necessary for her safety as wife, either to ob- tain a divorce from him, or to resist his obtaining one from her. The resemblance, in this respect, is nearer a criminal prosecution on her behalf against him for an assault, where he cannot be made to pay her counsel fees and other like expenses.” § 572. When the wife has sufficient separate property, the reason for giving her either temporary alimony, or money to defray her expenses in the suit, does not exist, and she is not en- titled to either.2 The court will consider whether her separate means are sufficient; and, if not, will decree alimony to sup- ply the deficiency. If she has an income adequate to her own support, but not to meet also the expenses of the suit, and she forbears to apply for alimony, but does apply for her expenses, the court will give her the latter.* Sir Herbert Jen- ner Fust once said: “It would have been much to the satis- This is: just as much a necessary as the costs of exhibiting articles of the peace against her husband are a necessary, as stated by Lord Ellenborough in Shepherd v. Mackoul, 3 Camp. 326. The same principle applies in both cases, although the facts which would entitle her to exhibit articles of the peace would not necessarily entitle her to sue for a divorce.” Compare this case with Williams v. Monroe, 18 B. Monr. 514. 1 Shepherd v. Mackoul, 3 Camp. 326; Williams 7. Fowler, McClel. & Y. 269 ; Turner v. Rookes, 10 A. & E. 47; 2 Bright Husb. & Wife, 8. ® Grindell v. Godmand, 13 Legal Observer, 467,1 Nev. & P. 168. ® Ante, § 562; Furst v. Furst, Poynter Mar. & Div. 260, note; Davis v. Davis, ib. 261, note; Fylerv. Fyler, Deane & Swabey, 175. In New York, alimony pendente lite was denied the wife in her suit for separation, where it appeared she had gone to reside with her father, who had agreed with the husband to support her, in consideration of his making no claim for her services. Bartlett v. Bartlett, 1 Clarke, 460. : * D’ Aguilar v. D’Aguilar, 1 Hag. Ec. 773, 3 Eng. Ec. 329, 338; Belcher v. Belcher, 1 Curt. Ee. 444, 6 Eng. Ec. 372; Wilson v. Wilson, 2 Hag. Con. 203; Logan v. Logan, 2 B. Monr. 142; Collins v. Collins, 2 Paige, 8; Holmes v. Holmes, 2 Lee, 90, 6 Eng. Ec. 49; Turst v. Turst, 2 Lee, 92, note, 6 Eng. Ec. 50;, Rose v. Rose, 11 Paige, 166. [ 551 ] § 573 THE CONSEQUENCES OF DIVORCE. [Book VI. faction of the court, if it could have found any case in which the costs have been apportioned between the husband and wife, where the incomes of both parties have been small; but I have never met with a case of the kind, nor am I aware that any such rule ever existed.”! In cases where the wife is not allowed to claim of the husband her expenses in the suit during its progress, on the ground of her having sufficient separate estate, she may still have her costs as the prevailing party, on its termination, if otherwise entitled to them.” § 573. When therefore the wife is carrying on her suit for a divorce, and the husband has no property except what is already in her custody, neither the allowance of temporary alimony nor of money to prosecute can be made her? Yet probably it is not alone a sufficient circumstance to bring a case within this principle, that the husband has no visible or actual estate; for we shall see, that alimony may be awarded out of his income or his ability to earn money.t| Where the husband is plaintiff, if he is destitute both of property and ability, the court will not directly require him to furnish the wife with alimony pendente lite, or with money to defend, but will suspend the suit until some provision is made for her.® If he cannot aliment her, and give her the means of de- fence, he cannot have his divorce Where, however, the complainant was an infant without pecuniary resources, and the suit was prosecuted by his father as his next friend; and the defendant wife applied for an order, on this next friend, to furnish funds out of his own estate for her defence; yet, it ? Belcher v. Belcher, supra. In this case the husband’s income was 510/. and the wife’s 236/. per annum, and she was allowed to tax her costs. _* D’Aguilar v. D’Aguilar, supra; Wilson v. Wilson, Poynter Mar. & Div. 263, note. ® Laurie v. Laurie, 9 Paige, 234. * Post, § 604. ° Bruere v. Bruere, 1 Curt. Ec. 566, 6 Eng. Ec. 391; Walker v. Walker, 1 Curt. Ec. 560. 5 Purcell v. Purcell, 3 Edw. Ch. 194. [ 552 ] CHAP. XXVII.] ALIMONY. § 575 ‘appearing from affidavits produced that she was a common prostitute, keeping a house of ill-fame; the court declined either to make the order, or stay the proceedings until the husband should arrive at full age. § 574. Enlightened by these principles concerning alimony generally, and alimony pending the suit for divorce, let us consider the question sometimes arising in our courts, whether, when a statute gives the tribunal jurisdiction over a specific cause of divorce, but is silent concerning alimony, or provides only for permanent alimony, the temporary can then be award- ed; and whether costs, as they are termed in England, or money to defray the expenses of the suit, can also be given. This question seems plain on principle ; first, the jurisdiction belongs to the court under the law imported by our forefathers to this country; secondly, if this were not so, still it springs up necessarily out of the legal relation of the parties, and the condition of facts appearing of record before the court to which the application is made. And if any one principle of our jurisprudence is more worthy of commendation than an- other, it is, that the tribunals may always be pressed to action whenever the case comes within established legal rule, though not within any precedent. _ § 575. Yet the North Carolina court decided, that, as the statute of divorce was silent concerning temporary alimony, and as it contained no intimation of an intention to establish the ecclesiastical practice, this temporary allowance could not be ordered. The court however reserved the further question, 1 Perkins v. Perkins, cited in Osgood v. Osgood, 2 Paige, 621, 622. And see on the subject generally of this section, Cason v. Cason, 15 Ga. 405. * The court in Maine has held, that the alimony which is allowed by a particular statute is incidental toa divorce; so when another statute pro- vides, that a single judge may hear questions of divorce, the result is, that he may hear and pass upon questions of alimony also. Jones v. Jones, 18 Maine, 308. ‘ 47 [ 553 ] § 576 THE CONSEQUENCES OF DIVORCE. [Book VI. whether it-would give relief to a husband oppressively pur- suing his wife, without means, for a divorce, until he would furnish her with the funds necessary for her defence! In Vermont, this matter was thus summarily disposed of: “ The statute gives this court, which in applications for divorce acts as a court of law, no power to grant alimony, except after divorce granted.”2 And in Massachusetts a late case holds, that, until Stat. 1855, c. 1387, § 6, expressly conferred the au- thority on the courts, they could not order this temporary support? § 576. These decisions however are overborne, not only by the reason of the matter, but by the current of American authority also. Thus temporary alimony and money for the prosecution or defence, — things which go together in prin- ciple, though differing in name,t— one or. both, have been awarded by the courts where the statutes were silent,> in 2 Wilson v. Wilson, 2 Dev. & Bat. 377. In this case Mr. Justice Gaston questioned the policy of allowing temporary alimony. Upon which Chan- cellor Kent observes: “I am entirely convinced from my own judicial ex- perience, that such a discretion is properly confided to the courts.” 2 Kent Com. 99, note. And by Stat. 1852, c. 53, the authority is now vested in the tribunals of North Carolina. Taylor v. Taylor, Jones, N. C. 528. ? Harrington v. Harrington, 10 Vt. 505; s. ep. Hazen v. Hazen, 19 Vt. 603. 3 Shannon v. Shannon, 2 Gray, 285. And see Coffin v. Dunham, 8 Cush. 404, 405. ‘ See Dorsey v. Goodenow, Wright, 120; North v. North, 1 Barb. Ch. 241; Coles v. Coles, 2 Md. Ch. 341; Tayman v. Tayman, 2 Md. Ch. 393. But in a Rhode Island case, an ne for money to carry on the suit yas refused, on the ground of former practice, though it was intimated that temporary alimony was allowable. Sanford v. Sanford, 2R.164. And see Williams v. Monroe, 18 B. Monr. 514. 5 Possibly, in some single instance, I may be mistaken in supposing there was no statutory provision; for I have not access to all the former statutes of every State. The present condition of the statute law of a State does not always indicate what it was upon this subject at a previous date; for not unfrequently the legislature expressly authorizes the courts to grant ad inte- rim alimony, though they had before done the same thing without the ex- [ 554 ] CHAP. XXVII.] ALIMONY. § 576 New York,! Michigan? Kentucky? New Jersey, Missouri,® Georgia,® and Maine;7 and, in suits in equity for alimony, in Virginia® and Maryland;® and in Maryland in suits for press direction. Yet the statements in the text are substantially correct, I believe them correct in every instance. * North v. North, 1 Barb. Ch. 241. This decision is entitled to peculiar weight, because the statute did provide for an allowance to the wife, toa ‘certain extent; but the provision was held not to take away the common Jaw right where the statute was silent. Mix v. Mix, 1 Johns. Ch. 108, by Chancellor Kent. Indeed, in New York there is no statute in terms empow- ering the court to decree temporary alimony, but it is provided, that, in every suit brought either for a diverce or separation, the court may, in its discretion, require the husband to pay any sums necessary to enable the wife to carry on the suit during its pendency. And it is the constant prac- tice there to decree alimony pendente lite, besides making the wife this allow- ance for the expenses of the suit. 2 Barb. Ch. Pract. 265. . ® Story v. Story, Walk. Mich. 421. This decision was made in 1844. By the Rev. Stat. of 1846, p. 333, power is given the court to require the hus- band to pay any sums necessary to carry on or defend the suit during its pendency. ; ® Fishli v. Fishli, 2 Litt. 887, a. p. 1822, the following statutory provision, however, being in force: “‘ Pending a suit for a divorce, the court may make such temporary orders relative to the property and parties as they shall ‘deem equitable.” Act of Jan. 31st, 1809, § 8, 1 Littell & Swigert’s Statutes, p.443. In 1831, it was made, by statute, the duty of the husband to pro- vide a support for the wife during the pendengy of the suit, unless she was living in adultery. Whitseli v. Whitsell, 8 B. Monr. 50. * Amos v. Amos, 3 Green Ch. 171; Patterson v. Patterson, 1 Halst. Ch. 389. 5 Ryan v. Ryan, 9 Misso. 539. On examination of the statute law, as it stood at this time, and still remains, it appears that provision was made for permanent alimony; also, that the court “may order any reasonable sum -to be paid for the support of the wife, during the pendency of her applica- ‘tion for a divorce.” Act of March 19, 1835, § 5, compare with act of Feb. 28, 1845. Yet in Ryan v. Ryan, which was a suit by the husband, the de- fendant wife had alimony pendente lite. ®§ McGee v. McGee, 10 Ga. 477. 7 Farwell v. Farwell, 31 Maine, 591. * Purcell v. Purcell, 4 Hen. & Munf. 507, ' * Wright’s case, 1 Bland, 101, note. This suit was decided in 1780; and the wife had, for her temporary aliment, one hundred pounds of tobacco per month. [ 555 ] § 576 THE CONSEQUENCES OF DIVORCE. [BOOK VI. divorce! The same allowance has also been made in New Hampshire, at least to the extent of ordering a sum to be paid the wife for defence against the suit of her husband, on her showing herself to have a good defence, and to be without means.2 In Connecticut, the court observes: “ When the wife is respondent, and defends herself against the application of her husband, the practice is uniform to order him to provide, in case of her inability, funds for her defence ; but we have never known such aid to be furnished her when she was the prosecuting party; nor has she, in such case, though successful, been considered as entitled to recover the costs ordinarily due to the prevailing party.”? In Pennsyl- vania, after a decree had been rendered by the court, fixing the amount of alimony on a divorce from bed and board, the plaintiff moved for a further decree, that the respondent pay her three hundred dollars, expenses incurred in prosecuting her suit. The counsel for the husband opposed the motion, on the ground that no such authority had been conferred by statute. The allowance was however made. by the court; and King, President, in giving the opinion, said: “ On general principles, independent of the statute, I am convinced that the husband, plaintiff or defendant, is obliged to pay the _ expenses incurred by his wife in prosecuting or defending a divorce; and certainly he is so obliged when, as here, she has established her claim to it. It is an incidental authority to the power given this court to decree a divorce. Without it, in many cases, the wife being in poverty must fail in a just suit instituted by her, or be defeated in an unjust one prosecuted by her husband against her.”* And the doctrine * Ricketts v. Ricketts, 4 Gill, 105; Daiger v. Daiger, 2 Md. Ch. 335; Tay- man v. Tayman, 2 Md. Ch. 393; Coles v. Coles, 2 Md. Ch. 841. See Stat. 1841, c. 262, which provides for permanent alimony only. * Parsons v. Parsons, 9 N. H. 309, 319; Quincy v. Quincy, 10 N. H. 272. 3 Shelton v. Pendleton, 18 Conn. 417. “ Melizet v. Melizet, 1 Parsons, 78. And see Butler v. Butler, ib. 329. See also the Alabama cases of Richardson v. Richardson, 4 Port. 467, 480, and Harris v. Davis, 1 Ala. 259. [ 556 ] CHAP. XXVII.] ALIMONY. § 577 of allowing temporary alimony is fully approved in this State.1 § 577. The principle is, as we have seen, that the wife’s right to alimony pendente lite, and to money to carry on the suit, to be paid by the husband, grows out of the nature of the proceeding. It can therefore make no difference, whether the court is one of law or of equity; but, as in the United States the equity tribunals have generally this jurisdiction, the question has more frequently arisen in them. Indeed seldom, in legal proceedings, do rights depend upon the judicatory, provided it has power over the subject-matter; for what is lawful and just before one set of judges must be so before another. And in the Georgia tribunal, which hears divorce eauses as one of law, not of equity, Nisbet, J., in a lumi- nous opinion, observed: “ Alimony pendente lite is a common law right. It was an established right in England when we adopted the common law. It is no less a common law right because it grew up under the usages of the Ecclesiastical Court. What becomes of that right in Georgia? The common law, which guarantees it, has not been repealed. It is suited to our condition, and in harmony with our institu- tions. We have no ecclesiastical court. The jurisdiction, which in England belonged to that court, has been trans- ferred here, by statute, to the superior courts, and the man- ner of exercising it pointed out. Upon the subject of tem- porary alimony, however, our statutes are silent. Under this state of the facts, I repeat the question, what becomes of the right? Is it a right without a remedy? Or rather, are not: the superior courts bound to enforce it as much as any other provision of the common law? By transferring the jurisdic- tion over divorces to those courts, was it not the intention of the legislature, that that jurisdiction should be exercised, ex- cept so far as the manner of its exercise is specially pre- 1 Graves v. Cole, 7 Harris, Pa. 171. 2 Ante, § 560, 561, 569, 570, 574. ; 47* [ 557 J § 578 THE CONSEQUENCES OF DIVORCE. [Book VI. scribed, and except so far as the common law is in conflict with the laws of Georgia, and the genius of her institutions, according to the common law? We think it was; and that, with the power to grant divorces, passed the power to enforce the common law which gives to the wife temporary alimony. This conclusion becomes irresistible when we reflect, that, if the Superior Court cannot make the provision, it cannot be made at all.’’4 : § 578. The allotment of temporary alimony is really for the benefit as well of the husband as the wife, especially in those cases where he is the guilty party. If no such allot- ment has been made, he is liable, at law, for necessaries fur- nished her during the pendency of her suit for divorce, the same as though it was not pending.? Liable likewise is he, if he has not paid the alimony decreed;* and where, in con- sequence of his neglect to pay, he has been compelled to dis- charge debts contracted by her, his only remedy is to apply 1 McGee v. McGee, 10 Ga. 477, 485. * Keegan v. Smith, 5 B. & C. 375; Sykes v. Halstead, 1 Sandf. 483; Cun- ningham v. Irwin, 7 S. & R. 247. If the parties are living apart, whether with or without an agreement to do so, and her suit against him for his alleged desertion is pending, her offer, made in good faith, to return to him, will be presumed to include an offer also to withdraw the suit for divorce; and will, moreover, without resorting to the desertion alleged therein, be sufficient to charge him with necessaries furnished her by a third person. Cunningham v. Irwin, 7 8. & R. 247. * Hunt v. De Blaquiere, 5 Bing. 550; Keegan v. Smith, supra. The same rule applies where an allowance made in a deed of separation is not paid. Nurse v. Craig, 5 B. & P. 148; Burrett v. Booty, 8 Taunt. 343; Miller v. Miller, Saxton, 386, 392. But where the parties are living sep- arate, without deed or sentence of court, the husband will not be relieved from his liability for necessaries furnished her by third persons, in conse- quence of paying her an allowance voluntarily; unless it is adequate, of which the jury are to judge. The mere acquiescence of the wife will not establish its adequacy. Hodgkinson v. Fletcher, 4 Camp. 70; Wilson v. Smith, 1 B. & Ad. 801; Baker v. Barney, 8 Johns. 72. See also Fenner v Lewis, 10 Johns. 38. [ 558 J CHAP. XXVII.] ALIMONY. § 579 for a reduction of the alimony.’ But if he has regularly paid it, he is relieved from all further responsibility? Yet even then, if the debt were properly contracted during the pendency of the suit, but before the decree of temporary alimony, he would still be held to discharge it, although the decree should direct the alimony to commence from a date previous to the time when it was contracted ; for the rights of third persons, already accrued, cannot be taken away by proceedings to which they are not parties. § 579. We have seen, that this right to temporary alimony geout of the marriage relation, under the circumstances hich the parties litigant are placed. Therefore, as also we have seen,* the allowance cannot be made until a fact of marriage has been either admitted or proved. But the mar- riage need not be legal and valid; for, though it is void in law, yet if it has operated practically upon the property rights, the same as though it were valid, the same reason exists for making the temporary provision. Suppose, for instance, a woman of wealth has married a poor man, making him wealthy, and herself, considered separate from her husband, poor. Yet suppose she has learned that this man had already another wife living, and so the marriage is void. She may indeed treat it as void without judicial sentence; yet suppose, * De Blaquiere v. De Blaquiere, 3 Hag. Ec. 322, 5 Eng. Ec. 126, 128. And see post, § 589, 593,594; Hancock v. Merrick, 10 Cush. 41. 2 Wilson v. Smyth, 1 B. & Ad. 801; Bennett v. Stokes, 2 Misso. 69; Brisco v. Brisco, 2 Hag. Con. 199. In the case last cited, where the con- duct of the wife had been bad, Lord Stowell observed: “Under all these circumstances, where enormous expenses are thrown upon the husband in every mode to which female extravagance can apply itself, if the court did not feel that by ordering alimony it was most consulting the protection of the husband, it would hardly be disposed to allot any alimony at all. Under all considerations, however, the court allots the sum of 200/. per annum, in addition to the sum of 2002. per annum pin money.” And sée 1 Fras. Dom. Rel. 441. ® Keegan v. Smith, 5 B. & C. 375; 2 Bright Husb. & Wife, 19. * Ante, § 570. [ 559 J § 579 THE CONSEQUENCES OF DIVORCE. [BooK vr. that, instead of this, she brings her suit against the man to have it decreed null. Her property is practically in his hands, though in point of law she retains the title. But since she has elected to let the court settle the question of nullity in a direct proceeding for this purpose, she has the same claim upon the court to have appropriated to her.so much of this property as her necessities demand while the suit is going on, as though she alleged the marriage to be valid, and sought a dissolution for cause subsequent. In like manner, where the man seeks to establish the nullity of his marriage on the alle- gation, that the woman has a former husband living, she may have alimony pending the suit, and money to defend. This question having arisen before Sir George Lee, he observed : “The man by his suit admitted, that he was married to her de facto; and it was alleged and not denied, that he had lived with her as his wife for many years, and had eight children by her; and, under that marriage, he had a right jure mariti to possess himself of whatever she had, and must be supposed to have done so, and consequently she could have no money of her own to defend herself against his suit. I must pre- sume, till the contrary appears in evidence, that she was his wife de jure, as well as de facto; for otherwise she must be guilty of bigamy, and is a felon; but the law presumes, on the contrary, everybody to be innocent till they are proved guilty.”! The practice here indicated has prevailed ever since this decision, and it applies as well to temporary ali- mony as money to defray the wife’s expenses in the cause? 1 Bird v. Bird, 1 Lee, 209, 5 Eng. Ec. 366. * Miles v. Chilton, 1 Robertson, 684, 693; North v. North, 1 Barb. Ch. 241. And this is so, even though it is alleged that the marriage was brought about by the fraudulent practices of the supposed wife, and though the costs of the suit may ultimately be awarded against her. Portsmouth v. Ports- mouth, 8 Add. Ec. 63, 2 Eng. Ec. 428. The Georgia court decided the other way in Roseberry v. Roseberry, 17 Ga. 139 ; but, in the subsequent case of Frith v. Frith, 18 Ga. 2738, the judge said, the court ‘ went too far” in the former case, and J presume the former is intended to be thereby reversed. Indeed Frith v. Frith directly decides, that, when the husband seeks a de- cree of nullity against the wife on the ground of the marriage having been brought about by her fraud, she may have temporary alimony. [ 560 ] eet CHAP. XXVII.] ALIMONY. ; § 580 Chancellor Walworth however has intimated an exception to this rule, being the very case put by way of illustration of it in the opening of this section; namely, that, where the woman is plaintiff in a suit for nullity, her own allegation of the defect in the marriage will be taken against her as true, when she applies for temporary alimony and money to prose- cute the suit; wherefore she will not then be entitled to the allowance.!| But on principle, though undoubtedly she must be bound by her allegation,? we have seen, already in this section, that, even when the marriage is void, she should still have her temporary alimony. A fortiori, when it is voidable, as for impotence, her allegation shows precisely the same foundation for alimony as if it were originally without defect ; namely, that all her property has lawfully vested in the hus- band, and that he has become entitled to receive her earn- ings. If indeed, in the case of a void marriage, the parties had held themselves out as husband and wife merely for purposes of their own, the marriage not having operated practically on their mutual. . property sights, the reason for giving alimony would not exist, and it should-nat be. allowed.” 8 § 580. There is a New York case, in which the wife, in her bill for divorce from bed and board for the husband’s cruelty, alleged a marriage in time and place, and swore to the bill; the husband, in his answer, sworn to also, denied the marriage, but did not deny the cohabitation; whereupon Vice Chancellor McCoun made the allowance of temporary alimony, and of money to carry on the suit, observing: “A novel question is presented here. Although the defendant 1 North v. North, supra. So in Bartlett v. Bartlett, 1 Clarke, 460, 1t was held, that, in a suit by the wife for a divorce because of the husband’s alleged impotence, she could not have an allowance of money for carrying on the suit. The decision appears to have been based chiefly upon the statute; yet, even in this view, there is certainly room to question its harmony with principles elsewhere established. 2 Ante, § 58. ? Browne v. Burns, 5 Scotch Sess. Cas. N. 8. 1288; Campbell v. Sassen, 2 Wilson & Shaw, 309. [561 ] § 581 THE CONSEQUENCES OF DIVORCE. [Book vr. denies a marriage de facto, he has not denied the cohabita- tion, or living together, nor the great cruelty set forth in the bill. At this stage of the suit, Ido not think the plea suff- cient to prevent the granting of the application. In Smyth ‘y. Smyth, 2 Addams, 254, the court in effect granted tempo- rary alimony, where in point of form it could not allot it to the wife until the fact of marriage was either proved or con- fessed by the husband.”! In the case of Smyth v. Smyth, the facts were, that the libel as reformed was admitted on the day immediately preceding a long vacation; and the court, being asked for alimony, said the allotment could not be made in form, because neither the marriage had been shown, nor the husband’s faculties established; yet recom- mended the husband in effect to aliment the wife, in propor- tion to his means, during this vacation, “intimating, that it should take this into the account, when, in the progress of the suit, alimony pendente lite came to be regularly allotted, if its recommendation were not complied with.” 2 § 580 a. If we look again at the principle on which this temporary allowance is made, we shall see the exact statement of the case to be, that, before the making of the allowance, the judge should be satisfied, either from testimony taken or from the admissions of the parties, of such terms and rela- tions practically existing between them, in respect of their pecuniary affairs, as ordinarily exist between married _per- sons. If these terms and relations do exist, then the allow- ance out of the common fund is to be made to the wife, equally whether she is wife de jure; or, till the suit is de- termined, is merely wife de facto, to cease, on its termination, to be wife at all. § 581. The ad interim alimony and money to sustain the 1 Smith v. Smith, 1 Edw. Ch. 255. ' ® Smyth v. Smyth, 2 Add. Ke. 254, 2 Eng. Ec. 298. See observations of Dr. Lushington on this case, in Miles v. Chilton, 1 Robertson, 684, 693. See also Durant v. Durant, 1 Hag. Ec. 528, 3 Eng, Ec. 231; Fraser v. Fraser, Poynter Mar. & Div. 248, note. . [ 562 ] CHAP. XXVII. | ALIMONY. § 581 expenses are given, not as of strict right in the wife, but of sound discretion in the court! Yet the discretion is a judicial, not an arbitrary, one.2 And when a case is brought within the principles recognized as entitling the wife to the allow- ance, the allowance follows pretty much as of course, without inquiry into the merits of the case If, for example, she is plaintiff, it is no objection that the husband denies her charges under oath; or, if she is the defendant, that he has recovered, in an action of criminal conversation, a verdict against the alleged paramour. Even where, in the divorce suit against her, the jury on-a feigned issue have found a verdict in his favor, the alimony still continues down to the time of the final decree.6 But the pleadings which she her- self presents must show merits;7 and, if her bill is in form’ or substance sufficiently defective to be bad on demurrer, as where she sues in her own name when she should sue by her next friend, she cannot have the allowance.2 In one case, the question of the jurisdiction of the court being raised 1 Jones v. Jones, 2 Barb. Ch. 146; Mix v. Mix, 1 Johns. Ch. 108; 1 Fras. Dom. Rel. 441; Swearingen v. Swearingen, 19 Ga. 265. ' ® Cooke v. Cooke, 2 Phillim. 40, 1 Eng. Ec. 178. ® Wright v. Wright, 1 Edw. Ch. 62; Jones v. Jones, supra; Hammond v. Wammond, 1 Clarke, 151; Methvin v. Mcthvin, 15 Ga. 97; Daiger v. Daiger, 2 Md. Ch. 335; Coles v. Coles, 2 Md. Ch. 341. * McGee v. McGee, 10 Ga. 477, 489 ; Hammond v. Hammond, supra. 5 Williams v. Williams, 3 Barb. Ch. 628. ® Stanford v. Stanford, 1 Edw. Ch. 317; Germond v. Germond, 1 Paige, 83. T Worden v. Worden, 3 Edw. Ch. 387; Ballentine v. Ballentine, 1 Halst. Ch. 471; Jones v. Jones, supra; Browne v. Burns, 5 Scotch Sess. Cas. N. 5. 1288. See post, § 587. 8 Rose v. Rose, 11 Paige, 166; Wood v. Wood, 2 Paige, 454; s. c. de- cided on appeal in the Court of Errors, 8 Wend. 357. The Vice-Chan- cellor granted temporary alimony, notwithstanding the husband had ap- pealed to the Chancellor from an order allowing the sufficiency of the next friend. Robertson v. Robertson, 1 Edw. Ch. 360. See also D’Arusmont v. D’Arusmont, 4 Law Reporter, Nn. s. 311, 8 West. Law. Jour. 548. And see ante, § 579. But see, as perhaps variant from the doctrine of the text, Coles v. Coles, 2 Md. Ch. 341. » [563] § 581 a THE CONSEQUENCES OF DIVORCE. [BooxK VI. by the defendant husband on demurrer, the judge would not order him to pay her a sum for carrying on the suit, until this question should be settled; but it further appearing, that, if the bill should not be sustained as a bill for divorce, the ‘court would still have jurisdiction over it for the purpose of providing for the suitable support of the wife and children out of the husband’s estate, pursuant to a statutory provision, ad interim alimony was granted Drunkenness in the plaintiff wife will not of itself take away her right to an advance of money to carry on her suit, and temporary alimony. But the court, before giving her the alimony, will take care it shall not be misapplied” § 581 a. Some recent cases, however, seem to qualify the doctrine of the last section; though, it is submitted, the doc- trine ought to stand as there stated. Thus the New Jersey court seems to have looked into the case, on affidavits con- cerning its merits, in respect of the matter of alimony pen- dente lite and counsel fees In another New Jersey case, the defendant husband had been declared in another proceeding a lunatic, and the wife then applied for the temporary ali- mony. «The learned Chancellor rejected the application, saying: “I think it would be improper to make the order. It would be made against a party who has been declared a lunatic by this court. The order implies a default and neglect of a moral obligation on the part of the defendant. This ought not to be imputed to a lunatic. The embarrassment in en- forcing such an order is also an objection to making it.”4 As to the former of these two adjudications, let us ob- serve, that, not only is the receiving of affidavits concerning the merits of a cause contrary to the general practice, but the ? Mix v. Mix, 1 Johns. Ch. 108. See Turrel v. Turrel, 2 Johns. Ch. 391 ; Ex parte King, 27 Ala. 387. 2 Saunders v. Saunders, 2 Edw. Ch. 491. * Dougherty v, Dougherty, 4 Ha'st. Ch. 540. See also Martin v. Martin, 4 Halst. Ch. 563; post, § 583, note. '* McEwen v. McEwen, 2 Stock. 286. 5 Ante, § 581; post, § 587. [ 564 ] OHAP. XXVII.] ALIMONY. § 682 practice, if established, will require the court substantially to pass twice on the same question, contrary to the usual course of things, and will thereby unnecessarily burden both the wife and the court, while it will delay the supply of her needs unduly. As to the other matter, if a proceeding is carried on at all against a lunatic, no reason appears why his prop- erty, if he has property, should not as well pay the expenses, as well support the wife also, as though he were not a lunatic, and the person who has it in possession should be directed to disburse. If however in any case the court has suspicion, that the wife is not herself directing her cause, but that it is carried on by others, without her direction, very important is it for this matter to be determined before an order is made for the temporary alimony.} § 582. The former court of chancery in New York refused to the defendant wife her. advance to defend the suit,’ and her temporary alimony, until her answer had disclosed the nature of her defence.2_ And when it consisted in a denial of the adultery charged, she was required to make oath to it, in order to obtain this allowance; though she is not, for any other purpose, obliged to answer under oath. But when she answered under oath, the answer was held to be, for the pur- poses of the application, conclusive? Yet as a wife might successfully resist the suit without denying her guilt; as by showing, in recrimination, that her husband was guilty also; if she set up such a defence upon her information and belief, and so could not give it the weight of her own affidavit, she must support it, it seems, by affidavits of witnesses before she could have the allowance The legal propriety of re- quiring the answer on oath, and the affidavits of witnesses, is matter for consideration also a little further on 1 Swearingen v. Swearingen, 19 Ga. 265. * Lewis v. Lewis, 3 Johns. Ch. 519. 8. Pp. Allen v. Allen, Hemp. 58. § Williams v. Williams, 3 Barb. Ch. 628 ; Osgood v. Osgood, 2 Paige, 621 ; Wood v. Wood, 2 Paige, 108; ante, § 581 * Osgood v. Osgood, supra. 5 Post, § 587. 48 [ 565 ] N § 583° THE CONSEQUENCES OF DIVORCE. [BooxK VI. § 583. Moreover in New York, a distinetion in this ques- tion was taken between bills for the dissolution of the mar- riage, and bills for a separation from bed and board. Thus, while in a suit for the dissolution of the marriage the wife was entitled to her allowance as of course, if she had properly set forth, upon her oath, a legal ground of action or defence ;. yet, in suits for a separation only, if the parties had severally presented, each upon his oath, a good case, and a strong im- pression was on the whole left in the mind of the court that the husband was the more injured one, the wife could not have the allowance, unless she further satisfied the court of the merits of her cause.!. This modification of doctrines, in their application to the divorce suit from bed and board, is not quite in harmony with what is held in England, and generally in the other American States. The New York rule was drawn from the peculiar legislation of the State, which pro- vided, that the suit by the wife for separation, unlike the suit for a dissolution of the marriage, should be brought through a responsible person, as her next friend, who should be answer- able to the defendant for the costs he might be put to by the commencement and prosecution of it, if it should eventually be found to have been instituted without sufficient reason. And a needless burden would be cast on the husband if he were compelled to advance money to the next friend, who must ultimately refund it with interest? But the new code of procedure in this State at first authorized the wife to sue for the limited, as for the full, divorce, in her own name alone; yet it was afterward amended; and so now a next friend is always requisite, whether she sues or defends, and 1 Bissell v. Bissell, 1 Barb. 430. And see Worden v. Worden, 3 Edw. Ch. 887; Hollerman v. Hollerman, 1 Barb. 64. And compare with Osgood v. Osgood, 2 Paige, 621. See also Jones v. Jones, 2 Barb. Ch. 146; Snyder py. Snyder, 3 Barb. 621, 624. 7 * See Portsmouth v. Portsmouth, 1 Add. Ec. 63, 2 Eng. Ec. 428. ® Chancellor Walworth, in Jones v. Jones, supra; Laurie v. Laurie, 9 Paige, 234, [ 566 ] CHAP. XXVII.] ALIMONY. § 585 whether the divorce sought is from bed and board or from the bond of matrimony. § 584. Where the wife’s bill for divorce is taken pro con- Jfesso against her husband, she may have a reasonable coun- sel fee taxed in her costs, as well as ad interim alimony? But where she is defendant, and suffers the bill to be taken pro confesso against her, she is not entitled to costs, even though the bill is dismissed for want of proof, and she cannot have an allowance of money to defend the suit; for,as against her, the husband’s allegations must be deemed true; and all further inquiry is merely to satisfy the court of just cause existing, and no collusion? § 585. Where, in New York, the husband has made, under an order of court, an advance of funds to the wife to carry on her suit, if she prevails, her taxed bill of costs against him is to 1 Shore v. Shore, 2 Sandf. 714, 8 N. ¥. Legal Observer, 166 ; Meldora. Meldora, 4 Sandf. 721; Thomas v. Thomas, 18 Barb. 149; Voorhies N. Y. Code, 2d ed. § 114, and notes, 4th ed. p.101. See also Wood v. Wood, 8 Wend. 357. It is the practice, sometimes at least, in Ohio, for the wife, on asking alimony, to bring in affidavits of witnesses taken on notice, showing a prima facie case. Edwards v. Edwards, Wright, 808; Wooley v. Wooley, Wright, 245; D’Arusmont v. D’Arusmont, 8 West. Law Jour. 548, 4 Law Reporter, N.s. 311. Mr. Page says: “In Ohio, the application for tem- porary alimony is generally founded on a motion to the court. Reasonable notice of the motion is given to the husband, and affidavits are presented t6 show the fact of marriage, the separation, the cause of the application, and the condition of the husband in life. These affidavits are also taken upon notice.” Page on Div. 270, referring to the above-cited cases from Wright, and to Martin v. Martin, Wright, 104. I will observe in passing, — it not being my intention to go into the question of practice here, — that this method can hardly be taken with safety as a guide elsewhere. See also Slack v. Slack, Dudley, Ga. 165 ; McGee v. McGee, 10 Ga. 477; Wright v. Wright, 3 Texas, 168; Longfellow v. Longfellow, 1 Clarke, 344; ante, § 581 a; post, § 587. ' 2 Graves v. Graves, 2 Paige, 62. ; * Perry v. Perry, 2 Barb. Ch. 285. And see Graves v. Graves, supra; ante, § 302, 581. [ 567 ] § 587 THE CONSEQUENCES OF DIVORCE. [BOoK VI. be reduced by deducting therefrom the amount of the allow- ance thus made her, less the reasonable sum which she may have paid for counsel fees and other expenses not covered by the taxed bill. This equitable rule prevents the wife from making any speculation out of the advance. The general doctrine is, that the husband is to pay the wife, besides the temporary alimony, her actual and reasonable expenses in the suit, but no more. And it was admirably laid down in a Scotch case, that “ the taxation of the accounts must be as between agent and client, with this material qualification, that the agent is to be held as acting without special instruc- tions, and therefore liable for the propriety and reasonableness of his proceedings.”? If a wife, wantonly and without prob- able cause, introduces into her pleadings matter she cannot prove, this may be ground for disallowing her claim in part, though she succeeds in her suit; but the mere fact of her having failed to prove a particular part of her allegation is it- self not sufficient for this purpose? § 586. A statute in Kentucky directs the courts to pro- vide for the support of the wife, during the pendency of the suit, unless she is living in adultery. This duty is impera- tive ; and, when an application is made for alimony pendente lite, and it is not claimed she is living in adultery, the only further matter open for inquiry relates to the amount of the husband’s estate, and whether or not the wife is already suit- ably provided for by him.* § 587. In the practice of the ecclesiastical courts, the ques- tion of the wife’s right to alimony pendente lite, when her pleadings were defective, could not arise; for the question of the sufficiency of the pleadings, in those courts, is determined 1 Kendall v. Kendall, 1 Barb. Ch. 610. * Taylor v. Binnie, 4 Deas. & Anderson, 314, 10 Scotch Sess. Cas. 18. ® Soileux v. Soileux, 1 Hag. Con. 373, 4 Eng. Ec. 434. And see Dorsey v. Goodenow, Wright, 120. * Whitsell v. Whitsell, 8 B. Monr. 50. [ 568 ] CHAP. XXVII.] ALIMONY. §.587 on their admission. But if this were not so, quite probably we should have the English rule, the same as the rule else- where,! that pendente alimony could not be given to a wife whose record ¢ase would not entitle her to a final decree. The English rule therefore is, that, when a suit is instituted by or against the wife; and the plaintiff’s allegation is admit- ted, and the husband has acknowledged, or she has proved, a fact of marriage ; she is at once, on establishing his faculties, entitled to a decree for her ad interim alimony and costs; no other condition being imposed upon her ‘This simple rule, whether on the whole it should be preferred to the New York rule or not, seems admirably just, and seems to cover the en- tire ground of reason upon which the allowance of alimony and costs ad litem is based. For, while there is no very clear objection to requiring of the wife an oath‘ as a pledge of her sincerity, even this, in circumstances and suits where she could not be compelled, for other purposes, to make disclos- ures under oath, would place her on a footing inferior to her husband ; where the true policy of the law, and the dictates of justice, demand the parties to stand on equal ground. But especially there seems to be no satisfactory reason, why, when she is sued for a divorce, she should be compelled to lay her whole case before counsel, and answer her husband’s bill, be- fore she has an allowance of alimony and means of defence — proceedings attended with delay and expense, sometimes embracing a large share of the time and cost of the suit. Neither does there appear to be any sufficient cause for re- quiring her to produce affidavits of witnesses ; which, as they cannot be read on the hearing, involve a waste of labor and expense, but disclose to her husband how she intends to es- tablish her case, while he cannot be compelled to make to her the like disclosure in turn. f 1 Ante, § 581. *’ Butler v. Butler, 1 Lee, 38, 5 Eng. Ec. 299. 3 Coote Ec. Pract. 338; ante, § 569, 570; Poynter Mar. & Div. 247; Oughton, tit. 206. * Ante, § 582. 48* [ 569 J § 589 THE CONSEQUENCES OF DIVORCE. [Book VI. § 588. Alimony pendente lite is usually made, by the terms of the order itself, to commence from the return of the cita- tion. This is the true rule; “ for, till then, the wife may be considered as able to obtain subsistence on the credit of her husband.”2 But it may be made to commence earlier or later; earlier, as from the date of the citation, where the hus- band is promoter and he does not use due diligence in its return ;? later, as where the wife had an income of 300/. per year of her own, and it was two years before she applied for the alimony. In this case the court of appeal directed it to commence from the date of the decree below.4 § 589. We have seen, that, till alimony is decreed, the hus- band is liable for the debts of the wife, as though the suit were not pending.» Therefore all sums which he has paid on her account, or to her, subsequently to the time when this allowance is to commence under the order of the court, are to be deducted as part payment of the alimony. For these rea- sons it has always been considered desirable, that the question of alimony pendente lite be settled at an early stage of the suit.’ Yet the wife does not absolutely lose her right by any delay in making her application; and the allowance may be made, both of temporary alimony and expenses of the suit, even as late as the final entry of the decree for divorce, or at the same time with the decree for permanent alimony’ Or the decree for permanent alimony may—so it was held in New York— make this allowance to commence from the fil- 1 Hamerton v. Hamerton, 1 Hag. Ec. 23, 8 Eng. Ec. 17; Bain v. Bain, 2 Add. Ec. 253, 2 Eng. Ec. 293. ne 2 Loveden v. Loveden, 1 Phillim. 208. ® Loveden v. Loveden, supra. * Rees v. Rees, 3 Phillim. 387, 1 Eng. Ec. 418. 5 Ante, § 578. ®'Hamerton v. [amerton, 1 Hag. Ec. 23, 8 Eng. Ec. 17; Harris v. Har- ‘ris, 1 Hag. Ec. 351, 3 Eng. Ec. 153. And see Coles v. Coles, 2 Md. Ch. 341. 7 Brisco v. Brisco, 2 Hag. Con. 199. 6 Frankfort v. Frankfort, 3 Curt. Ec. 715; Melizet v. Melizet, 1 Parsons, 78. [ 570 ] CHAP. XXVII.] ALIMONY. § 591 ing of the bill, when such a course is just and reasonable ;1 though the true rule in ordinary cases is, that permanent alimony shall commence from the date of the sentence? § 590. Where, in the English ecclesiastical practice, there was an appeal, the permanent alimony, ordered by the supe- rior court, was usually made to commence from the date of the sentence in the court below; because the appeal suspend- ed the sentence, and, if it did not so commence, there might be an interval during which the wife would have no mainte- nance. But when she was guilty of laches in prosecuting her appeal, the rule was for the alimony to commence from the return of the inhibition? V. General Expositions concerning the two kinds of Ali- mony. § 591. Alimony is not a sum of money, or a specific pro- portion, of the husband’s estate, given absolutely to the wife; but it is a continuous allotment of sums payable at regular periods, for her support from year to year. It must secure to lier, as wife, a maintenance separate from her husband: an absolute title in specific property, or a sale of a part of the husband’s estate for her use, cannot be decreed or confirmed to her as alimony.? Even where a statute authorized the court 1 Burr v. Burr, 7 Hill, N. Y. 207. In this case, temporary alimony had been ordered and paid; and the court directed, that ‘the amount so paid be deducted from the permanent alimony. But see Ricketts v. Ricketts, 4 Gill, 105. And see post, § 615. * Cooke ». Cooke, 2 Phillim. 40,1 Eng. Ec. 178; Kempe v. Kempe, 1 Hag. Ec. 532, $ Eng. Ec. 233; Durant v. Durant, 1 Hag. Ec. 528, a Eng. Ee. 231. 3 Loveden rv. Loveden, 1 Phillim. 208. * De Blaquiere v. De Blaquiere, 3 Hag, He. 322, 5 Eng. Ec. 126; Wilson v. Wilson, 3 Hag. Ec. 329, note, 5 Eng. Te. 129, 5 Maguire v. Maguire, 7 Dana, 181; Wallingsford v. Wallingsford, 6 Har. & J. 485; Purcell v. Purcell, 4 Hen. & Mont. 507; Almond v. Almond, os Rand. 662; Lockridge v. Lockridge, 3 Dana, 28. [571] § 592 THE CONSEQUENCES OF DIVORCE. [Boo VI. to allow the wife, on a divorce from bed and board, “such ali- mony as her husband’s circumstances will admit, not exceed- ing one third of the annual income or profits of his estate or occupation; or to assign to her separate use such part of the real and personal estate of the husband as the court shall think fit, not exceeding one third part thereof, as the justice of the case may require; which shall continue until a reconcilia- tion shall take place between the parties;” it was held, that an assignment of specific property to the wife, under the lat- ter clause, does not vest the ownership in her, so as to enable her to convey a good title to it by sale. It gives her only the use of it until reconciliation, or the death of one of the par- ties. And where a wife had sold property so assigned to her, the husband, on her death, was held entitled to recover it back.t § 592. So alimony cannot be allowed for the term of the wife’s life;? because it is a maintenance to her,®? while the husband’s duty to maintain her ceases at his death. There- fore the expression in the decree of alimony should be, that it continue during the joint lives of the parties, or until rec- onciliation and recohabitation. But for the security of the wife against the designs of a husband who might, for the purpose of frustrating the decree, entice her into a momentary reunion and then expel her or renew his wrongful conduct; it has been considered better the decree should state generally, that it is .to continue during their joint lives, and that the court re- - serves the right to change the allowance from time to time, according to circumstances. It has been deemed proper also, to require of the husband a bond, with approved security, that the alimony shall be paid according to the decree, in in- stalments ; reserving the power to compel payment from time to time by attachment, sequestration, or otherwise.4 The 1 Rogers v. Vines, 6 Ired. 293. 2 Lockridge v. Lockridge, 3 Dana, 28. 3 Ante, § 549. * Lockridge v. Lockridge, 3 Dana, 28; Logan v. Logan, 2 B. Monr. 142; Mayhugh v. Mayhugh, 7 B. Monr. 424; Paff v. Paff, Hopkins, 584. [ 572 ] CHAP. XXVII.] ALIMONY. § 593 form of the decree, however, is probably not the same in all courts;! but it is unnecessary to discuss this matter further here. § 593. Still on general principles, aside, it seems, from con- siderations of the form of the decree, the court may at any time, and from time to time, on any change in the circum- stances of the parties, increase or reduce the sum allotted for alimony, temporary? or permanent.? .And Dr. Lushington has observed: “ Where there is a material alteration of cir- cumstances,‘ a change in the rate of alimony may be made. If the faculties are improved, the wife’s allowance ought to be increased; and, if the husband is lapsus facultatibus, the wife’s allowance ought to be reduced. Applications of this sort are of rare occurrence. I only remember two instances where applications of either kind have been successful, the case of Foulkes and Foulkes, for an increase ;5 and Cox and Cox, for a reduction.” 7 Applications to change the amount of alimony once fairly settled ought evidently to be carefully scrutinized ; but, if both parties act in good faith in the exercise of their’ best judgments, both parties must live. When the husband, asking a reduction, alleges an alteration in his circumstances, the court will consider, whether it has been brought about by any improper conduct, and especially by any attempt to de- 1 See ante, § 295; Burr v. Burr, 7 Hill, N. Y. 207. 2 Cox v. Cox, 3 Add. Ee. 276, 2 Eng. Ec. 531; Amos v. Amos, 3 Green Ch. 171; MeGee v. McGee, 10 Ga. 477, 491. : ® Otway v. Otway, 2 Phillim. 109; Rogers v. Vines, 6 Ired. 293; Rich- mond v. Richmond, 1 Green Ch. 90; Burslerv. Bursler, 5 Pick.427; Holmes v. Holmes, 4 Barb. 295; Barber v. Barber, 1 Chand. 280. So also under the Arkansas statute, Bauman v. Bauman, 18 Ark. 320. As to Illinois, see Wheeler v. Wheeler, 18 Ill. 39. * See Westmeath v. Westmeath, 3 Knapp, 42; Pemberton v. Pemberton, 2 Notes Cas. 17. 5 Foulkes v. Foulkes, Poynter Mar. & Div. 256, note. § Cox v. Cox, supra. 7 De Blaquiere v. De Blaquiere, 3 Hag. Ec. 322, 5 Eng. Ec. 126, 129. [573] § 593 THE CONSEQUENCES OF DIVORCE. [BooK VI. fraud the wife of her alimony.!_ And it was once held, under the particular facts of the case, that the reduction of the hus- band’s income by unprofitable speculations was no ground for a proportionate reduction of permanent alimony, allotted twenty years before? The result of this case, however, should’ plainly not be elevated into a general rule; for, in some cireum- stances, failure in speculations should in justice be taken into the account, on the one hand; while success in speculation) would surely be taken into the account on the other hand? It has been held in New York, that the wife cannot have her ali-' mony increased by reason of her increased expenses growing. out of rendering support to a person whom the husband is under no legal obligation to maintain Likewise in an Eng- lish case, the court held, a husband cannot have the alimony re- duced by reason of his having to pay debts contracted by the wife, anterior to the allotment of temporary alimony. “ lt is not: alleged,” said Dr. Lushington, “ that during that period the’ husband furnished the wife with any means of subsistence whatever; and it is now established by the decree of this court, that, by reason of his cruelty, the wife was justified in separating herself from him. Under such circumstances, I will not enter into a consideration, whether the expenses were extravagant or not; the whole fault is at the door of the hus-' band; he compelled her to leave his home, and left her with- out the means of subsistence, and, so situated, it might be: difficult for her to get credit, and live economically. But be’ this as it may, the application is altogether too late; and such a deduction from permanent alimony would be without pre-' cedent.”> The application to vary the amount of alimony is ? Lockridge y, Lockridge, 2 B. Monr. 528, 3 Dana, 28. And sce Rees v. Rees, 3 Phillim. 387, 1 Eng. Ec. 418; Kirkwall v. Kirkwall, Poynter Mar. & Div. 255, note. * Neil v. Neil, 4 Hag. Ee. 273. ® See post, § 607-609. * Halsted v. Ialsted, 5 Duer, 659. * Harmar v. Harmar, Deane & Swabey, 282, 284. [574] CHAP. XXVII. ] ALIMONY. § 595 to be made by summary motion, or petition, in the original cause, not by a new proceeding. § 594. If the alimony has been suffered to run in arrear, at least with the tacit consent of the wife, any disbursements the husband has consequently been compelled to make on her account? will be deducted from the sum due, on her ap- plication to enforce the payment. And as alimony is for the maintenance of the wife from year to year,‘ the court will not, without sufficient cause shown for the delay, compel the payment beyond one year prior to the monition® This last proposition, again, can in reason apply only in particular cir- cumstances, not in all. --§'595. The wife, suing for divorce, even for divorce from the bond of matrimony, cannot make, previous to the decree of divorce, a valid agreement concerning alimony. For while the matrimonial relation continues, she is not legally compe- tent to enter into any contract; and the court will not,-with- out examination, sanction any stipulation of hers on this sub- ject; because “it would have a tendency to produce collusion between the parties, with a view to the dissolution of the marriage.” An agreement of this nature might under cir- cumstances be sanctioned, shown to be fair and proper. As the divorce from bed and board does not dissolve the mar- riage, there may be doubt precisely how far the wife, after obtaining such a divorce, can make a valid relinquishment of her claim to the alimony allotted her under the decree. 1 Bauman v. Bauman, 18 Ark. 320, 333. 2 Ante, § 578. : ® De Blaquiere v. De Blaquiere, 3 Hag. Ec. 322, 5 Eng. Ec. 126, 128. * Ante, § 591. 5 De Blaquiere v. De Blaquiere, supra, and Wilson v. Wilson, cited in a note to the same case, 5 Eng. Ec. 129. And see Gresse v. Gresse, cited 1 Phillim. 210. 6 Daggett v. Daggett, 5 Paige, 509. And see Rogers v. Rogers, 4 Paige, 516; Kirby v. Kirby, 1 Paige, 565; ante, § 301-303. [575] § 596 THE CONSEQUENCES OF DIVORCE. [BOOK VI. Where a wife, in a letter to the solicitor of the husband, expressly abandoned the alimony; but she was shown to have done this for the purpose of influencing the husband to let her son be with her, the court said: “I doubt, whether, in law, it was competent for her, in that form, to relinquish the benefit of the decree of the court. ‘This is a contract between husband and wife; and, though the principles applicable to such contracts are not strictly the same, after a legal separa- ‘tion, as they may be regarded while the parties are living ‘together, yet they are not widely different. In the one case, ‘here is the influence arising from affection; afterwards an influence of a different sort, arising from an anxiety to com- municate with her children. If it were necessary to settle ‘this point I should be of opinion, that the whole alimony, de- ‘ereed to her in 1830, must be placed at her disposal, and then she will be at liberty to appropriate it as she pleases.” } ' .§ 596. When the wife dies, leaving arrears of alimony due to her, the rule of the ecclesiastical courts is, it seems, that, in those courts, her representatives cannot recover it; while also ‘the doctrine is settled, that such arrears cannot be recovered either in the common law or in the equity tribunals, unless for the benefit of her creditors.2. Thus where the executors ‘of the wife brought their bill in equity for arrears of alimony, a demurrer to the bill was sustained, Lord Lyndhurst, C., observing: “It was said, that, in analogy to the cases in which this court grants the writ of ne exeat regno, and on principle, the bill might be sustained; but it is impossible to look into those cases without seeing how very reluctantly the ‘court has acted in giving relief.2 Then it was said, that the party will be without remedy, because executors cannot main- tain a suit in the ecclesiastical court. That argument oper- * De Blaquiere v. De Blaquiere, 3 Hag. Ec. 322, 5 Eng. Ee. 126, 128, by Dr. Lushington. : * Post, § 597 et seq. * See Shaftoe v. Shaftoe, 7 Ves. 171; Dawson v. Dawson, 7 Ves. 173. And see 2 Story Eq. Jurisp. § 1472. [576 | CHAP. XXVII.] ALIMONY. § 597 ates, I think, the other way; for executors may maintain suits in the Ecclesiastical Court, but not for arrears of ali- mony. It should seem, therefore, that the claim must cease with the death of the wife. That is probably the principle ; but it does not follow that, therefore, this court has jurisdic- tion. There is no instance of such a bill as the present being filed against the husband, by the executors of the wife ; and I should be very averse to establish a precedent. The authorities do not warrant it. The cases in which the court have granted the writ of ne exeat regno do not war- rant it; nor, from the circumstance of the Ecclesiastical Court . not interfering, can I found any jurisdiction in this court.” 1 § 597. So, in Pennsylvania? a wife brought her suit at common law for the recovery of her alimony, pending which suit she died; and her administrator came in to prosecute it. The court held, that he was not entitled to recover, except for the use of her creditors, with whom she had contracted debts in consequence of his withholding payment in her lifetime. The opinion, by Rogers, J., is replete with learning and sound sense; and we cannot better contemplate several points relating to this subject, than as presented in his very words. He said: “ A sentence of divorce a mensdé et thoro does not so far destroy the relation of husband and wife as to make the latter a feme sole; such a sentence merely suspends, for a time, some of the obligations arising out of that relation. A woman divorced.a mensé et thoro, and living separate and apart from her husband, cannot be sued as a feme sole; unless in the known excepted cases of abju- ration, exile, and the like, when the husband is considered as dead, and the woman as a widow.? The same holds good where she is divorced a vinculo4 Alimony is not considered 1 Stones v. Cooke, 8 Sim. 321, note. 2 Clark v. Clark, 6 Watts & S. 85. 3 See however, as to this, post, § 686 et seq. * Marshall v. Rutton, 8 T. R. 545; Hyde v. Price, 3 Ves. 437; Lean v. Schutz, 2 W. Bl. 1195. 49 [577] § 598. THE CONSEQUENCES OF DIVORCE. [Boox vi. the separate property of the wife, but it is that proportion of the husband’s estate which the courts allow her, for present subsistence and livelihood according to law, when they decree a separation from bed and board. In Vandergucht v. De Blaquiere,! it was attempted to assimilate alimony to [an estate settled to] the separate use of a [married] woman; but the court denied the similitude, for alimony is liable to be varied by the court according to the husband’s circumstances. A married woman divorced from her hus- band, and entitled to alimony under the sentence of the Ecclesiastical Court, accepted a bill of exchange for articles of dress supplied to her by the drawer, and made it payable at her banker’s, to whom her alimony was paid. It was held that she did not thereby charge her alimony... .-. § 598. “In case of a divorce a mensé et thoro, she ought to apply her alimony to her support, as her occasions may re- quire; and, if those who know her condition, instead of re- quiring immediate payment, give credit to her, they cannot sue her2 As a divorce a mensé et thoro does not destroy the relation of marriage, but merely suspends some of the obli- gations arising out of that relation, it follows that the right, as regards succession to property, is not impaired....... Thus it appears, that the title to property, whether dower, curtesy, or personal estate, is affected by a divorce according to the nature of the divorce; for, if it be a dissolution of the marriage, and then only, the rights consequent upon it will cease. But where the bond of matrimony is not dissolved, as in case of a divorce a mensé et thoro, the rights of the par- ties, so far as regards succession to property, remain as before. From this it would result, that the arrears of ali- mony belong to the husband; and it would seem to be against right to compel him to pay to another that which ? Vandergucht v. De Blaquiere, 8 Sim. 315. _ * Beard v, Webb, 2 B. & P. 93; Marshall v. Rutton, 8 T. R. 545; Murray v. Barlee, 3 Myl. & Keen, 209, 220. See post, § 686-688. [578] CHAP. XXVII.] ALIMONY. ~ § 599 belongs to himself. And this may have been avoided by the husband, who might upon a proper application have the let- ters of administration set aside.” Yet, as the husband had neither taken out administration, nor applied to have the letters to the plaintiff vacated, he could not set up his right in this collateral way. There appearing also to be debts which the deceased wife had left unpaid, the plaintiff was allowed to recover for the benefit of her creditors; the court observing: “Tf, after payment. of the debts, any thing should remain, the administrator will hold it for the use of the husband, on the principle before stated.”1 It seems however that, if the husband, instead of the wife, dies, the estate which he leaves is liable to pay the alimony due at the time of his death.? § 599. In accordance with these principles, where the court had ordered the husband to pay his wife a sum of money weekly, during the pendency of her bill for divorce, but be- fore its payment the bill was dismissed, it refused afterward to enforce the payment for her separate use. She was still his wife, and whatever she might have belonged to him; and, if he should in form pay this money to her, it would still be his, and he could take possession of it. There was no authority in the tribunal to set it apart for her separate use, ex- cept as the consequence of a divorce, or as support during the pendency of a divorce suit; but, this suit being dismissed, her duty was to return to her husband.’ Where, however, a wife had proceeded against her husband for alimony by reason of his desertion, and her attorney had obtained:from him a sum 1 Clark v. Clark, 6 Watts & S. 85. And see Sterling v. Sterling, 12 Ga. 201. ? Smith v. Smith, 1 Root, 349; Sloan v. Cox, 4 Hayw. 75. See Tessie v. Jamison, 4 Md. Ch. 289, 298. As to the effect of the husband’s bank- ruptcy, &c., see Newhouse v. Commonwealth, 5 Whart. 82; Texas’s gare, A Ashm. 175. ‘* Persons v. Persons, 7 Humph. 183; s. P. Wright v. Wright, 6 Texas, 29. See Stafford v. Stafford, 9 Ind. 162. [579] § 600 THE CONSEQUENCES OF DIVORCE. [Book VI. of money in a compromise of the suit; the court held, that she, by her next friend, might maintain against this attorney her bill in equity for the money, and that the hus- band need not be made a party to the bill! We may ob- serve, that here the husband had not only himself appropriated the money for the use of his wife, but had actually parted with it. And there is doubt, whether, in any case in which the money has passed’ from the husband to the wife, under a decree for alimony, temporary or permanent, he can re- claim this money of her on the ground of being her husband. There seems to be a necessity this should be so; because otherwise the decree would be substantially without legal effect. It has been adjudged, that, if on a divorce from bed and board the wife is allowed as part alimony the rents of some lands, out of which she makes an annual saving, — the husband, when she dies, cannot have the fund accumulated from this saving. This decision appears to have proceeded substantially on general principles ; although the court made some reference to the language of the statute, which expressly gave to the injured wife, obtaining a divorce, “capacity to ac- quire and dispose of such property as she might procure by her own industry, dr as might accrue by descent, devise, or in any other manner.” 2 § 600. We should understand, that the foregoing doctrines concern specifically alimony as understood in the ecclesiasti- cal law; while they may not, in all respects, be applicable to statutory alimony, decreed to the wife on a divorce from the bond of matrimony. Whether there is scope for this distinc- tion remains, however, to be decided. So there are, in some of the United States, allowances to the wife on a divorce a vinculo, under the name of alimony, differing essentially from the alimony now being considered; as in New Hampshire? and Connecticut, where this word alimony is used to desig- 1 Spencer v. Ford, 1 Rob. Va. 648. * Darden v. Joyner, 9 Ired. 339. § Parsons v. Parsons, 9 N. H. 309; Sheafe v. Sheafe, 4 Fost. N. H. 564. * Lyon v. Lyon, 21 Conn. 185, 197, [ 580 ] CHAP. XXVII.] ALIMONY. § 601 nate a portion of the husband’s estate, real or personal, vested by judicial sentence in the wife, on the judicial dissolution of the marriage. So the statutory law of Ohio provides, that, when a divorce from the bond of matrimony is decreed against the husband, the wife shall be restored to all her lands and tenements, and be allowed out of his real and personal estate such share as the court may think reasonable. Under this statute it is held, that the court in its‘discretion may decree, either a periodical support, or a gross sum, “as alimony,” to the wife. § 601. Also in respect to divorces from bed and board, con- sequences may flow from the peculiar language of the statute, or of the decree. The statute in New York provides, that, upon a judicial separation, the court may make such order and decree for the suitable support and maintenance. of the wife, by the husband, or out of his property, as may appear just and proper. And in a much considered case Chancellor Walworth doubted, whether the court could award a gross sum to the wife, instead of a periodical allowance. But he held, and the Court of Errors on appeal confirmed his decis- ion, that the decree might direct the alimony to be her sepa- rate estate, and authorize her to dispose of such part of it as shall remain at her decease, if the husband survive her, by an instrument in the nature of a will. In the Court of Errors, Nelson, C. J., observed: “ The object of this direction was to take from the complainant any temptation to withhold the payment of the alimony at the time designated. Unless this power was given, any unpaid balance at her decease should of course go to the husband; and, as she is aged and infirm, his past conduct may well justify the apprehension, that he would not hesitate to try the experiment of fighting off the quarterly payments, with the hope that in the mean time death might intervene and relieve him from the burden im posed by the decree. The right to give this direction in re ‘spect to the fund is not to be doubted. The same power that 1 Piatt v. Piatt, 9 Ohio, 37. 49* [581 ] § 602 a THE CONSEQUENCES OF DIVORCE. [BooK VI. can vest her with the absolute separate interest in a portion of the husband’s estate, can enable her to dispose of it as she may think proper. Indeed-the right to make the ‘disposition is incident to, and arises out of, the absolute ownership in the separate estate which the statute has authorized the court to. confer on her, although it is usual to accompany the allowance with an express power. ‘The wife has always been allowed in equity to dispose of her separate estate by an instrument in writing in the nature of a will, and a court of equity will see that her directions are carried into execution.” It was also held in this case, that alimony under the statute may be made, by the decree, to continue after the death of the hus- band, during the entire life of the wife.! § 602. Said the learned court in an Indiana case: “ The present Revised Statutes authorize the courts, when a divorce is granted for the misconduct of the husband, and when the estate brought by the wife and restored to her on the divorce is not sufficient for her support, to grant such alimony out of his estate. as shall be just and reasonable. There is no pro- vision authorizing a. grant of alimony in lieu of dower; but it is provided, that the court shall not have power to divest either party of their title to, or interest in, any real estate, further than is expressly provided for.” Accordingly it was held, that the wife could not be divested of her dower by a decree of alimony, stated in the decree to be instead of dower? § 602 a. Concerning the several points discussed under our present subtitle, one or two observations are important. In the first place, alimony under the ecclesiastical law, and ali- mony under the statutes of our several States, may not be governed by the same: principles, even where the statutes do not expressly order otherwise. Because, in most of our 1 Burr v. Burr, 10 Paige, 20, in the Chancellor’s and the Vice-Chancel- ilor’s Courts; 7 Hill, N. Y. 207, in the Court of Errors. 2 Russell v. Russell, Smith, Ind. 856, 1 Cart. Ind. 510. [ 582 ] CHAP. XXVII.] ALIMONY. § 603° States, the divorce from bed and board on which the decree of alimony is rendered, places the wife more nearly in the: condition of a feme sole than she occupies under the decree: of an écclesiastical court. And when the divorce is from the: bond of matrimony, still more, of course, does her condition. differ from that of a divorced woman alimented by ecclesias- tical decree. In the next place, whatever be the form of the: statute, the alimony, being granted by a court of law or of equity, partakes possibly of a somewhat different quality in consequence of the fuller and wider powers of the court order- ing it and enforcing the order from those possessed by the eccle- siastical tribunals. But these suggestions are only made as matters for consideration in a general way; it being impos- sible for any @ priori reasoning to anticipate what may arise for argument hereafter. VI. The Husband’s Ability whence the Alimony proceeds. § 603. Preliminary to discussing the amount to be fixed by. the courts for alimony, temporary or permanent, a word is necessary of the ability of the husband whence itis to proceed. But first let us observe, that the amount of alimony is not to be regulated by absolute and fixed rule; it is rather matter of discretion with the court. Yet this discretion is not an arbi-. trary one, but a judicial discretion, to be exercised according: to established principles of law, and upon an equitable view of all the circumstances of the particular case.1_ The general rule, especially in respect to permanent alimony, is, that the wife is entitled to a support corresponding to her rank and condition in life, and the fortune of her husband. “ When the delinquency of the husband has been established, and the 2 Rees v. Rees, 3 Phillim. 378, 1 Eng. Ec. 418; Ricketts v. Ricketts, 4. Gill, 105; Burr v. Burr, 7 Hill, N. Y. 207; Richmond v. Richmond, 1 Green ‘Ch. 90; Smith v. Smith, 2 Phillim. 235, 1 Eng. Ec. 244; Lawrence v. Law- rence, 3 Paige, 267; Cooke v. Cooke, 2 Phillim. 40, 1 Eng. Ec.178; Otway v. Otway, 2 Phillim. 109, 1 Eng. Ec. 203; Hammond v. Hammond, 1 Clarke, 151; McGee v. McGee, 10 Ga. 477, 490; ante, § 581. 4 [583 J § 604 THE CONSEQUENCES OF DIVORCE. [Book VI. wife is the injured party, driven by his cruelty,” or other wrongful conduct, “ from the comfort of domestic enjoyments, she should be liberally supported.” 4 ,§ 604. We have seen, that alimony is commonly defined to be a “ proportion of the husband’s estate.”2 But the duty of a husband to maintain his wife does not depend alone on his having visible, tangible property. While the parties are living together, they are bound to contribute by their several personal exertions to a common fund, which in law is the husband’s ; and from which the wife may claim support.’ If she is compelled to seek a divorce on account of his miscon- duct, she loses none of her rights in this respect, only she is to draw her maintenance in a different way; that is, under a decree for alimony, based, if he has no property, upon his earnings, or ability to earn money.’ The extent to which the wife of a poor man can have from her divorced husband separate aid, must depend, as it would if he were in afHuence, much upon the same circumstances which would determine her condition were they living together, in the proper dis- charge of their several marital duties’ “If,” says Johnston, C. J.,“the parties are laboring people, the wife needs less. If she is in bad health, however, the amount should be in- creased. If the labor of the husband is of a comparatively unprofitable character, or if he is sickly, allowance should be made for these circumstances. If, on the other hand, he is in good health and skilful, and is actually realizing considerable 1 Nelson, C. J.,in Burr v. Burr, supra; Otway v. Otway, 2 Phillim. 109, 1 Eng. Ke. 203. 2 Ante, § 549, note. 3 Ante, § 560 and note, 536 a, 537 d. “ Prince v. Prince, 1 Rich. Eq. 282; Kirby v. Kirby, 1 Paige, 261; Mc- Crocklin v. McCrocklin, 2 B. Monr. 370; Cooke v. Cooke, 2 Phillim. 40, 1 Eng. Ec. 178; Lawrence v. Lawrence, 3 Paige, 267; Bursler v. Bursler, 5 Pick. 427; Battey v. Battey, 1 R. 1.212. But see Tewksbury v. Tewks- bury, 1 How. Missis. 109; Freigley v. Freigley, 7 Md. 537. ® Bursler v. Bursler, supra; Smith v. Smith, 2 Phillim. 235, 1 Eng. Ec. 244; Brown v. Brown, 2 Hag. Ec. 5,4 Eng, Ec. 11. [584 ] CHAP. XXVII.] ALIMONY. , § 606 profits, the partner of his fortunes should not be refused a reasonable participation in them. Every case must be governed by its circumstances.”1 When the income arises from the personal exertions of the husband, according to some cases, the proportion of alimony is less than when it is derived from permanent property.” § 605. Obviously, then, as a general proposition, the fund out of which the wife is entitled to her alimony is the income of the husband, from whatever source derived or derivable. The method of procedure, for ascertaining the amount of it, is, in England,‘ and frequently in this country,> for the wife to file what is termed an allegation of faculties; to which the husband answers on oath, leaving her either to rely upon his answer alone,® or to produce other proofs, as she may be satis- fied or not with the disclosures made by him.’ § 606. “ The general principle regulating such allegations,” observes Dr. Lushington, “is this: the wife is at liberty to plead the income of the husband, and the sources from which it is derived. With regard to his reversionary property, — and by the word reversionary 1 mean such property as the hus- band is entitled to for a vested interest expectant on the death 1 Prince v. Prince, supra. ? Cooke v. Cooke, supra; Stone v. Beige Curt. Ee. 341, 7 Eng. Ec. 437; Hawkes v. Hawkes, 1 Hag. Ec. 526, 3 Eng. Ec. 230; Poynter Mar. & Div. 250; post, § 606. But see, for the explanation of this post, § 619. 8 Post, § 607, for the authorities. * Coote Ec. Pract. 339, 341. i 5 Lovett v. Lovett, 11 ‘Ala. 763; Wright v. Wright, 3 Texas, 168. 6 The husband’s admissions, in his answer to the wife’s allegation of facul-, ties, are to be taken strongly against him. Robinson v. Robinson, 2’Lee, 593, 6 Eng. Ec. 255; and the court will presume, that he has made every possible deduction in his own favor. Rees v. Rees, 3 Phillim. 387, 891, 1 Eng. Ec. 418, 419. 7 Brisco v. Brisco, 2 Hag. Con. 199; Higgs v. Higos, 3 Hag. Ec. 472, 5 Eng. Ec. 186; Durant v. Durant, i Hag. Ee. 528, 3 Eng. Ee. 231; Waste meath v. Westmeath, 3 Knapp, 42. [ 585 ] § 607 THE CONSEQUENCES OF DIVORCE. [BOOK VI. of some person, or on the happening of some other contin- gency, — it is both usual and proper that such property should be stated. I think, that, with regard to permanent alimony; the court would make a different allotment in a case where the income of the husband was derived from his sole personal labor or exertions,? from what it would do when he had more- over a large reversionary property in expectancy.”® But as the parents of the respective parties are under no legal obliga- tion to maintain them; it is not proper for the wife to state, in her allegation of faculties, the amount of property pos- sessed by the husband’s father; neither is it for the husband, in answering her allegation, to mention the amount of her father’s; though “a case may possibly arise in which, under very peculiar circumstances, the court would ‘allow the prop- erty of the husband’s father to be stated.”® The husband, in estimating his income, is not entitled to make any deduction on account of a policy of insurance on his life, for which he pays an annual premium; since the Bes is capable, at any time, of being converted into money. § 607. In considering the income or value of the husband’s, estate in reference to alimony, a difficulty is liable to arise, where, in consequence of peculiarly good or ill management, it permanently yields more or less than a fair average for, property generally; or where the husband’s means are vested, ina way to bring no direct return, as in building lots adjacent 1 The case of Bankston v. Bankston, 27 Missis. 692, seems to contain a sort of intimation, but no decision, that property acquired by the husband after the divorce cannot be taken into the account; but clearly, on prnginley it should be. ? Ante, § 604. ® Stone v. Stone, 3 Curt, Ec. 341, 7 Eng. Ee. 437. * Harris v. Harris, 1 Hag. Ec. 851, 3 Eng. Ec. 153; Bruere v. Bruere, 1 Curt. Ec. 566, 6 Eng. Ec. 391. 5 Dr. Lushington, i in Stone v. Stone, supra. * * Harris v. Harris, 1 Hag. Ec. 851, 3 Eng. Ec. 158. See also Frank- fort v. Frankfort; 4 Notes Cas. 282; Pemberton v. Pemberton, 2 Notes Cas. 17. [ 586 J CHAP. XXVII.] ALIMONY. § 608 to a growing city, from which he expects to derive an ulti- mate profit in the increase of their marketable value. In respect to the first branch of this difficulty, it would seem, upon principle, that the wife, in entering matrimony, contracts with her husband as much in reference to his capacity for managing an estate, as to the estate itself! ‘Therefore the actual income would furnish substantially the standard. And this does appear on authority to be, as the general principle, the precise fact to be regarded.2— But where, in the next branch of the difficulty, the husband chooses to take his income in the increased value of the property in which he invests his money, there would seem to be no reason why such inereased value should not ‘be considered his income, for the purpose of alimony; and a different rule would enable him to tie up his funds, and evade her claim alto- gether3 ' § 608. When the husband would claim any thing on the score of his bad management, especially his bad management since the delictum occurred on account of which the divorce is had, he must show very clearly, that, at least, he acted in good faith. And if he has encumbered his estate by his own extravagance and profligacy, the court will not allow the full deduction of such encumbrance.* Especially an assignment, partly fraudulent and colorable, of all his property, made by him subsequently to the commencement of the suit, cannot in any degree impair the rights of the wife; for, “if such a con- trivance could avail, no injured wife could ever hope for jus- 1 See ante, § 533, 536 a, 537, 5376, 604. * Brisco v. Brisco, 2 Hag. Con. 199, 201; Higgs v. Higgs, 3 Hag. Ec. 472, 5 Eng. Ee. 186; Cooke v. Cooke, 2 Phillim. 40, 1 Eng. Ec. 178; Miller v. Miller, 6 Johns. Ch. 91; Frankfort v. Frankfort, 4 Notes Cas.. 282; Foulkes v. Foulkes, Poynter Mar. & Div. 256, note; Stone v. Stone, 9 Jur. 381. 3 Harris v. Harris, 1 Hag. Ec. 351, 3 Eng. Ec. 153; ante, § 593. * Mytton v. Mytton, 3 Hag. Ec. 657, 5 Eng. Ec. 249; Kirkwall v. Kirk- wall, Poynter Mar. & Div. 255, note. And see Neil v. Neil, 4 Hag. Ec. 273. [587 ] - § 609 THE CONSEQUENCES OF DIVORCE. [B00K : VI. tice.”1.So if the husband, after the delictum, particularly after the commencement of the divorce suit, grants an annuity out of his estate, “this is not a deduction he is entitled to make, The utmost the court could allow would be the in- terest of the debt; and even then the husband should satisfy the court, that the debt was contracted before the injury done.” 2 Jao : pa : ..:§,609. On an application by the husband for a reduction of alimony, Dr. Lushington observed: “The principal point is, what, is to be done in respect to Hill House Farm. There is an extraordinary affidavit from General De Blaquiere’s housekeeper, whose husband manages the farm while she keeps the accounts, ‘that during the last fifteen years no profit has been derived from it;’ but the point to be consid- ered is, what the farm would let for. In 1820, it was esti- mated at £7,000; Lord Stowell put the produce of it at a low rate, and I see no reason to depart from the view he then took 1 Brown v. Brown, 2 Hag. Ec. 5,4 Eng. Ec. 11. See Frakes v. Brown, 2 Blackf. 295; Dunnock v. Dunnock, 3 Md. Ch. 140. 2 Rees v. Rees, 3 Phillim. 387, 1 Eng. Ec. 418, by Sir John Nicholl. In Tennessee the court has held, concerning a division of the property on di- vorce under the statute, not only, that the husband cannot resist a decree giving part to the wife, by reason of his having creditors who may be affected by it, but also, that, in ascertaining the amount of property to be allotted to the wife, the court will not take an account of his debts; neither, on the other hand, will it entirely disregard the interests of creditors. Chunn v. Chunn, Meigs, 151. This conclusion seems .to have resulted from the view the court took of the principles which should govern such a division. But in respect to alimony, as understood in the ecclesiastical law, I apprehend the general doctrine to be, both in principle and in the practice of the ecclesiastical tribunals, to take into consideration the debts of the husband ; certainly encumbrances on real estate are uniformly considered. If the in- quiry is as to how much the husband is worth, his debts must be deducted from his visible means; if (which is the true inquiry) as to his income, still the sum he pays as interest, or to keep down his debts, must be deducted. But when, in cases of insolvency, the question is upon the settlement of the wife’s own property, such as choses in action, upon her, the rule is very properly different. Vaughan v. Buck, 3 Eng. L. & Eq. 135; Davis v. New- ton, 6 Met, 537, 544. [588 ] CHAP. XXVII.] ALIMONY. § 610 of it2”} But the husband resided on this farm; and the man- sion-house and demesne are always to be charged the same as though they were to be let; besides, the question arose here upon an application for the reduction of alimony, and the falling off was subsequent to both the delictum and divorce. § 610. Where, according to an English case, the husband is doing business as partner in a firm, the wife will not be permitted to plead, in her allegation of faculties, the particu- lars of the partnership business ; such as the number of hands employed, the amount of the annual returns, the capital em- barked by the firm, the stock in trade, and the debts due; she is simply to state her husband’s inGome, or the income of the firm with the proportion to which he is entitled. This is out of forbearance to the other partners; and because, if the hus- band does not fairly disclose, they may be examined as wit- nesses. And Sir John Nicholl observes, that “the only mate- rial circumstance is the amount of income.” 4 1 De Blaquiere v. De Blaquiere, 3 Hag. Ec. 322, 5 Eng. Ec. 126, 129. 2 Brisco v. Brisco, 2 Hag. Con. 199; Cooke v. Cooke; 2 Phillim. 40, 1 Eng, Eq. 178. : 3 Jn Neil v. Neil, 4 Hag. Ec. 273, 274, on an.application for the reduction of alimony, Dr. Lushington said: ‘“ How has the reduction of income on the part of the husbard been occasioned? It is manifest that he was, at one time, in possession of a large capital; and, if he has thought fit to enter into large speculations, purchasing Mexican bonds, and shares nearly to the amount of 7,000/, it becomes a matter of grave consideration, whether, because those investments happen for the present. to be unprofitable, the wife — who is now increasing in years, and who. it must be remembered, is quite incompetent to contradict the statements of the husband as to his property — should suffer a reduction of alimony. . . If he chooses to speculate, he must, if unsuccessful, bear the inconvenience.” And see ante, § 608. ‘ Higgs v. Higgs, 3 Hag. Ec. 472, 5 Eng. Ec. 186. And see Brisco, v. Brisco, 2 Hag. Con. 199. 50 [ 589 ] § 612 THE CONSEQUENCES OF DIVORCE. [Book v1. VII. The Amount to be fixed for Alimony. - 611. In determining the amount to be given the wife for alimony, the court takes primarily into its consideration the husband’s faculties, as explained under our last sub-title. But these are not all the things to be considered in making up the ‘decree. Another very important thing is the income of the wife, -as already mentioned,! arising from her separate estate, if such estate she has. And the method of computation is, to add the wife’s annual income to her husband’s; consider what, under all the circumstances, should be allowed her out of the aggregate; then, from the sum so determined, deduct her separate income; and the remainder will be the annual ‘allowance to be made her. ' §611a. The statement of the case, made in the last sec- tion, proceeds on the idea of the alimony being based solely on the income of the parties from fixed property. But the in- ‘come of most persons, in this country especially, is drawn from their exertions. In England, divorce suits have been most frequently between persons of wealth, living on the receipts which come from established fortunes; because, in England formerly, justice as administered by the tribunals was practically oaly for the rich; it was too costly to be ‘bought by the poor: In this country, we have few fortunes resting on other foundations than the intellectual and physical capabilities of those who support them. : § 612. Looking still at this question as it further stands on the language of the courts, we must add, that, besides the joint income of the parties, the judge is to take into consideration _the sources from which the husband’s income is derived; as, whether it is from his personal labor, in which case, we have 1 Ante, § 562, 572. * Cooke v. Cooke, 2 Phillim. 40, 1 Eng. Ec. 178; Street v. Street, 2 Add. Ec. 1, 2 Eng. Ec. 195; and other cases cited ante, § 603. [ 590] CHAP. XXVII.] “’ ALIMONY. § 612 seen, the proportion will be less;! whether the bulk of the property came from the wife, in which case, where, as in Eng- land, the court has no power to restore to her what she brought to her husband, the proportion will be greater; or whether it was originally his;? or was accumulated by the joint exer- ‘tions of both, subsequently to the marriage ;* whether there are children or other relatives to be supported or educated, and on whom the burden of their support and education de- volves ; 4 the nature and extent of the husband's delictum ;5 1 Ante, § 604; Lawrence v. Lawrence, 3 Paige, 267. 2 Smith v. Smith, 2 Phillim. 152, 235, 1 Eng. Ec. 220, 244; Harris ». Harris, 1 Hag. Ec. 351, 3 Eng. Ec. 153; Street v. Street, 2 Add. Ec. 1, 2 Eng. Ec. 195; Fishli v. Fishli, 2 Litt. 337; Cooke : v. Cooke, 2 Phillim. 40, 1 Eng. Ec. 178 ; Kempe v. Kempe, 1 Hag. Ec. 532, 3 Eng. Ec. 233; Payne v. Payne; 4 Husaphy, 500; Chunn »v, Chunn, Meigs, 131; Wright v. Wright, 1 Edw. Ch. 62; Roulken. v. Foulkes, Poynter Mar. & Div. 256, note; De- ‘vaismes v. Devaismes, 3 Code Reporter; 124, 3 Am. Law Jour. N. 8. 279. ' 3 Lovett v. Lovett, 11 Ala. 763; Jeans v. Jeans, 2 Harring. Del. 142. - * Lawrence v. Lawrence, 3 Paige, 267; Germond v. Germond, 4 Paige, 643; Blaquiere v. Blaquiere, 3 Phillim. 258 ; Hawkes v. Hawkes, 1 Hag. Ec. 526, 3 Eng. Ec. 230; De Blaquiere v. De Blaquiere, 3 Hag. Ec. 322, 5 Eng. Ec. 126, 129; eae v. Amos, 3 Green Ch. 171; Kirby v. Kirby, 1 Paige, 261; Fishli v. Fishli, 2 Litt. 337; Harris v. Haris 1 Hag. Ec. 351, 3 Eng. Ec. 153; Smith v. Smith, 2 Phillim. 152, 1 Eng, Ec. 220; Kempe v. Kempe, 1 Hag. Ec. 532, 3 Eng. Ec. 233; Butler v. Butler, Milward, 629 ; Rees v. Rees, 2 Phillim. 387, 1 Eng. Ec. 418; Irwin v. Dowling, Milward, 629; Miller v. Miller, 6 Johns. Ch. 91; Barrere v. Barrere, 4 Johns. Ch. 187; Bedell v. Bedell, 1 Johns. Ch. 604; Williams v. Williams, 4 Des. 183; Durant v. Durant, 1 Hag. Ec. 528, 3 Eng. Ec. 231; Whispell v. Whispell, 4 Barb. 217; Otway v. Otway, 2 Phillim. 109, 1 Eng. Ec. 203; Bird v. Bird, 1 Lee, 418, 5 Eng. Ec. 396; Lovett v. Lovett, 11 Ala. 763; Hammond »v. ‘Hammond, 1 Clarke, 151; McGee v. McGee, 10 Ga. 477, 490. 5 Mytton v. Mytton, 3 Hag. Ec. 657, 5 Eng. Ec. 249; Burr v. Burr, 7 Hill, N. Y. 207; Smith v. Smith, 2 Phillim. 235, 1 Eng. Ec. 244; Turrel’v. ‘Turrel, 2 Johns. Ch. 391; Rees v. Rees, 2 Phillim. 387, 1 Eng. Ec. 418; Williams v. Williams, 4 Des. 183; Durant v. Durant, 1 Hag. Ec. 528; 8 Eng. Ec. 231; Otway v. Otway, 2 Phillim. 109, 1 Eng. Ec. 203; Hammond v. Hammond, supra. In New Hampshire it has been even held, that, on the application for alimony after divorce granted, evidence may be introduced tending to refute the charge in the libel. Sheafe v. Sheafe, 4 Fost. N. H. 564. As to which point, see 1 Bishop Crim. Law, § 633; post, § 627. [591 § 612 THE CONSEQUENCES OF DIVORCE. [Book VI. the demeanor and conduct of the wife toward the husband during the cohabitation ;! the ability of each party to earn money ;? the fact, if it be so, that out of tenderness the wife has long delayed instituting her suit, and has thus deprived herself of that support from her husband to which she was entitled, in consideration of which a larger proportion will be allotted ;# the condition in life, place of residence, health, and employment of the husband, as demanding a larger or smaller sum for his own support ;* the condition in life, circumstances, health, place of residence, and consequent necessary expendi- tures of the wife;5 the age of the parties;® and whatever other circumstances may address themselves to a sound judi- cial discretion. And there are cases in which the allowance _' Burr v. Burr, 7 Hill, N. Y. 207; Dejarnet v. Dejarnet, 5 Dana, 499 ; Peckford v. Peckford, 1 Paige, 274; Smith v. Smith, 2 Phillim. 235, 1 Eng. Ec. 244; Thornberry v. Thornberry, 4 Litt. 252; Hammond v. Hammond, supra; Stewartson v. Stewartson, 15 Ill. 145. ? Hammond v. Hammond, supra. ® Burr v. Burr, supra. In the Court of Errors, Nelson, C. J., in this case, observed : “I agree with the Chancellor, and the decisions of the ecclesias- tical courts fully warrant the remark, that, if a few years of affluence can, to any extent, compensate her for the more than thirty years’ unparalleled suf- ferings and misery which she has endured, either by the gratification of her feelings in the remuneration of those who have sheltered and nourished her. in adversity, or in procuring her those indulgences and comforts which her age and health may require, it will not be an improper exercise of the dis- cretion of the court — the ample means of the husband justifying it — to make the most liberal allowance.” _* Hawkes v. Hawkes, 1 Hag. Ec. 526, 3 Eng. Ec. 230; Kempe v. Kempe, 1 Hag. Ec. 532, 3 Eng. Ec. 233. ' 6 Finlay v. Finlay, Milward, 575; Butler v. Butler, Milward, 629 ; Burs- “ler v. Bursler, 5 Pick. 427; Prince v. Prince, 1 Rich. Eq. 282; Germond v. Germond, 4 Paige, 643. In Lynde v. Lynde, 2 Barb. Ch. 72, it was held, pending suit, that, if the health of the wife is such as absolutely to require her to travel and spend some time in a milder climate, the court has power to allow her a gross sum for the purpose. And the court, in this case, did allow her four hundred dollars to enable her to go and spend four months in the West Indies or the Southern States, her regular ad interim alimony to be suspended in the mean while. * Miller, v. Miller, 6 Johns. Ch. 91; Burr v. Burr, 7 Hill, N. Y. 207; Ricketts v. Ricketts, 4 Gill, 105; Lovett v. Lovett, 11 Ala. 763 [ 592 ] CHAP. XXVII.] ALIMONY. § 612 a: to the wife will be suffered to go beyond the income, and: trench upon the principal! Another consideration has also entered into the decision of this question, expressed in the words of Dr. Lushington as follows: “In decreeing alimony in 1818, I have some recollection that Lord Stowell, upon bes ing pressed to give a larger sum, observed, that, if he could think that the wife would be able to obtain it, he would make a more ample allowance, but that the allotment of 2002 a year he considered would be more beneficial to her; and the: difficulties she is stated to have experienced in respect to her: alimony seem to bear testimony to the propriety of that de- cree.” 2 §612a. The general summary contained in the last sec- tion presents a view of the case substantially just in principle; but the point of the sources of the income requires a further examination.. It has already been said in these pages,? that, in marriage, the parties give themselves to each other, includ- ing of course each other’s property, but also including each other’s persons, and physical and mental capabilities. If.a wife has. capacity to carry on business, and to earn a livelihood, the husband has his rights concerning this capacity; if the’ husband has ‘it, the wife has her corresponding rights. And when alimony is to be decreed, whether between parties possessed of visible fortune or not, the several capacities, as thus explained, should enter largely into the calculation. There are undoubtedly instances in which the wife’s duty is to support wholly her husband by her own mental and physical exertions. And though, if he were delinquent in the duties of the marriage, on account of which she obtained a: divorce from him, he would then have lost by his own fault. his claim upon her, yet she would have no claim on him for. alimony. . 1 Bursler v. Bursler, 5 Pick. 427; Germond v. Germond, 4 Paige, 643. And see Lynde v. Lynde, 2 Barb. Ch. 72. 4? Neil v. Neil, 4 Hag. Ec. 273, 274. | * Ante, § 5374. 50" [593] § 613 THE CONSEQUENCES OF DIVORCE. [Book VI. § 612d. Let us proceed with this matter as concerns, First, Temporary alimony; Secondly, Permanent alimony; Third- ly, Considerations relating to both kinds of alimony. § 618. First. Temporary Alimony. When the court awards this kind of alimony, it takes into the account some things not presenting themselves for consideration respecting perma- nent alimony. One is, that the husband has to maintain the expenses of the suit on both sides.1_ It is also to be consider- ed, that the wife has not established her cause. If she is plaintiff, she may fail in her suit;? if defendant, the bringing of the accusation against her casts over her a shadow which should cause her to live in comparative seclusion and conse- quent economy until it is removed.? “ Though,” observes Sir John Nicholl, “ the court cannot assume her guilty of the offence till it has been proved, still that is a sort of charge which ought to make her content to live in decent retirement. On that account, a comparatively small allotment is given during the pendency of the suit.” And the peculiar nature and complexion of the case are always to be taken into con- sideration.* Thus, where the wife sued for divorce, and the husband denied the charge under oath, this, while no answer to her claim for alimony, was held to be proper matter to influ- 1 Brisco v. Brisco, 2 Hag. Con. 199, 201; Harris v. Harris, 1 Hag. Ec. 851, 3 Eng. Ec. 153. 2« This suit is brought by the wife for cruelty and adultery. She now applies for alimony pending the suit; and certainly the court will not allow the same as if such a charge was established ; yet I think the nature of the suit is to be considered ; the charge is made; the answers are given in ; — as yet there is no allegation on the part of the husband; there is no ground to consider the suit as vexatious — no proceedings appear to have been had for the purpose of unnecessary delay. Therefore the wife has a right to be maintained with some reference to her former comfortable state — yet with moderation.” Sir John Nicholl, in Smith v. Smith, 2 Phillim. 152, 1 Eng. Ee. 20. * Hawkes v. Hawkes, 1 Hag. Ec. 526, 8 Eng. Ec. 230. * Rees v. Rees, 2 Phillim. 387, 1 Eng. Hc. 418. [594] CHAP. XXVII.] ALIMONY. § 614 ence the court in fixing the sum. So when the wife is com- plainant, she is generally understood to have a better claim than when she is the party accused.2, And temporary alimony will be less than permanent.3 § 614. The ordinary rule of temporary alimony is to allow the wife about one fifth of the joint income, deducting, of course, the income from the wife’s separate estate, in the way already explained. This is regarded as a fair medium, though the proportion will vary, as we have seen,> according to circumstances.6 When the necessities and claims of the wife have been large, one fourth has been allotted;? and Sir John Nicholl, in one case, where the husband had undertaken to put his property out of his hands, granted the wife 50/. per year out of an income of 1401, and refused to direct the mo- nition not to issue until after fifteen days; observing: “ Mrs. B. is entitled to be alimented,as if living with him as his wife, and the wife of such a person could not maintain herself de- cently for less than fifty pounds per annum.’® So where. a large proportion of the estate came from the wife, who was proceeding against her husband, and the general complexion of the case appeared quite favorable to her, she was allowe 200/. in addition to her own private income of 300/., making 5001, while the income of the husband was 1,500/. — between 1 Story v. Story, Walk. Mich. 421. 2 Amos v. Amos, 3 Green Ch. 171; Shelford Mar. & Div. 590. * Kempe v. Kempe, 1 Hag. Ec. 533, 3 Eng. Ec. 233; Otway v. Otway, 2 Phillim. 109, 1 Eng. Ec. 203; Cooke v. Cooke, 2 Phillim. 40, 1 Eng. Ee. 178; McGee v. McGee, 10 Ga. 477, 490. * ‘Ante, § 611. 5 Ante, § 603-612. si 6 Hawkes v. Hawkes, 1 Hag. Ec. 526, 3 Eng. Ee. 230; Brisco v. Brisco,'2 Hag. Con. 199, 201; Rees v. Rees, 3 Phillim. 387,1 Eng. Ec. 418. 7 Finlay v. Finlay, Milward, 575; Irwin v. Dowling, Milward, 629. 8 Brown v. Brown, 2 Hag. Ec. 5, 4 Eng. Ec. 11. Where the income was 250/., and the husband had two children to maintain and educate, the wife was allowed 751. “She must have the means of furnishing herself with decent subsistence.” Harris v. Harris, 1 Hag. Ec. 351, 3 Eng. Ee. 153. [ 595 J § 615 THE CONSEQUENCES OF DIVORCE. [Book v1. one third and one fourth of the joint income.t On the other hand, in different and peculiar circumstances, the wife has been obliged to accept as small a proportion as one eighth? Perhaps a less proportion will be allowed out of a very large: estate than a small one; for, though no such rule exists in respect to permanent alimony,? “there may be good reasons for giving less where the question is on alimony during the suit; when the wife is to live in seclusion, and wants a mere subsistence.” # § 615. In New York, a wife proceeding against her hus- band is allowed, as a general rule, no more than will meet her actual wants. The object of this rule is to discourage vexatious suits, and other like abuses, and to prevent indis- creet friends from fomenting family quarrels.6 The rule is certainly equitable; it is adapted also to promote the ends of justice when taken in connection with another rule, which 1 Smith v. Smith, 2 Phillim. 152, 1 Eng. Ec. 220. 2 Butler v. Butler, Milward, 629. Here she was allowed 50/. out of an income of 4002. 3 Post, § 616 and note. * Sir John Nicholl, in Cooke v. Cooke, 2 Phillim. 40, 1 Eng. Ec. 178. ® Germond v. Germond, 4 Paige, 643; Lawrence v. Lawrence, 3 Paige 267. A similar reasoning is also adopted in Poynter Mar. & Div. 250. But in New York, where a husband was worth $200,000, the court ordered him to pay the wife, who was plaintiff in the suit, one hundred dollars per month for temporary alimony, besides paying a gross sum of $250 toward carrying on her suit. Denton v. Denton, 1 Johns. Ch. 364. And see Mix v. Mix, 1 Johns. Ch. 108; Collins v. Collins, 2 Paige, 9; Wright v. Wright, 1 Edw. Ch. 62; Worden v. Worden, 3 Edw. Ch. 387; Kirby v. Kirby, 1 Paige, 261. The usual sum allowed, in this State, to the wife for carrying on the suit is one hundred dollars. Monroy v. Monroy, 1 Edw. Ch. 382. But it may be less or more. Longfellow v. Longfellow, 1 Clarke, 344; Ham- mond v. Hammond, 1 Clarke, 151. As to the amount of the allowance else- where, see also Bird v. Bird, 1 Lee, 418, 5 Eng. Ec. 396; Amos v. Amos, 3 Green Ch. 171; Paterson v. Paterson, 1 Halst. Ch. 389; Pursell v. Pursell, 4 Hen. & Munf. 507; D’Arusmont v. D’Arusmont, 4 Law Reporter, N. 8. 311, 8 West. Law Journal, 548; McGee v. McGee, 10 Ga. 477, 491; Coles v. Coles, 2 Md. Ch. 341. [ 596 ] CHAP. XXVII.] ALIMONY. § 616 sometimes, at least, guides the proceedings in New York; namely, to let the permanent alimony when awarded com- mence from the date of the suit, deducting from it the tem- porary allowance already paid by the husband § 616. Secondly. Permanent Alimony. In permanent ali- mony, the rule does not prevail, that a less proportion shall be given to the wife out of a large income, than a small. indeed Sir John Nicholl suggested, though he did not consider himself authorized to carry the suggestion practically to its full length, that, when the property is large, the considerations are reversed, and the proportion should be greater. “It is the delinquent then who should have the mere subsistence, and who ought to live in retirement.”? But whether the income is large or small, the proportion to be allotted for alimony, on the delictum of the husband being established, should, as we have seen,‘ be greater than pending the suit.5 1 Ante, § 589 and note. ? Ante, § 614. 3 Cooke v. Cooke, 2 Phillim. 40, 1 Eng. Ec. 178. I have stated the doc- trine in the text according to my understanding of this case. Shelford cites the case however, as authority for saying, under the head of permanent alimony: “It seems, that a larger proportion is given out of a small than a large income.” Shelford Mar. & Div. 593. In Wadd. Dig. p. 58, the case has this version, —“It would appear, that the court generally gives a ‘larger proportion where the income is small, except where the husband acquires his subsistence by his own personal exertions.” J can discover in the case no such doctrine; and,— does it exist in reason? Aside from. those instances in which, from a different consideration, the amount of alimony is suffered to go beyond the income and trench. upon the principal, ante, § 612, why should the proportion be less out of a large than a small estate? People are, as a general thing, as likely to live up to their income when it is large, as when it is small, and it is as proper they should; and, when the husband dies, the wife's proportion is the same. It will not do to say, that a certain sum is as much as a woman can reasonably spend; there is no limit even to reasonable expenditures; especially there is no judicial yard-stick by which expenditures can be measured off. * Ante, § 613. 5 Smith v. Smith, 2 Phillim. 235, 1 Eng. Ec. 244; Otway v. Otway, 2 Phillim. 109, 1 Eng. Ec. 203, ‘ [597] § 618 THE CONSEQUENCES OF DIVORCE. [Book VI. § 617. In permanent alimony, as we have seen in tempo- rary,! there is no established proportion of the income to be given the wife; “each case must depend upon its own par- ticular circumstances; no two cases are exactly alike.” The proportion ranges from one half, which is the highest; but not unfrequently allowed where the bulk of the property came originally from the wife, and where there is no power in the court to'restore any part of it to her in specie ;? down through two fifths —“no uncommon proportion” 4— to one third ;5 between which outer points it appears, in England, mostly to vibrate, though it sometimes descends considerably lower.” § 618. “ The law,” says Sir John Nicholl, “ has- laid down no exact proportion; it sometimes gives a third; sometimes a moiety ; according to circumstances.” ® In Kempe v. Kempe, where none of the property was derived from the wife, the same learned judge decreed one third of the income to her, observing, that he considered it a liberal allowance. “ There is no reason,” he said, “why the allowance should be less than usual; the husband has neither state nor family to sup- port — he is living in retirement on his half-pay and private fortune. His income is 729/., besides personal property worth about 7007, making altogether an income of rather more than 7502. per annum. “Alimony at the rate of 2502. per annum will not be too much, as Mrs. Kempe is, I apprehend, willing to take the child. If she declines to take it, the court may be induced somewhat to lessen this sum; but, if the refusal proceeds from the husband, — if he will not allow his wife the comfort of retaining her infant, — the court, though 1 Ante, § 613, 614. . ? Smith v. Smith, 2 Phillim. 285, 1 Eng. Ee. 244, : ® Smith v. Smith, supra; Cooke v. Cooke, 2 Phillim. 40,1 Eng. Ec. 1783 Otway v. Otway, 2 Phillim. 109, 1 Eng. Ec. 203; Taylor v. Taylor, cited in Cooke v. Cooke, supra. * Street v. Street, 2 Add. Ec. 1, 2 Eng. Ec. 195. 5 Ricketts v. Ricketts, 4 Gill, 105; Pomfret v. Pomfret, cited in Cooke v. Cooke, supra. ® Otway v. Otway, 2 Phillim. 109, 1 Eng. Ee. 203. [ 598] CHAP. XXVII. | ALIMONY. § 619 it cannot. control a father’s rights, would not be disposed: to hold such refusal as a ground for reducing the allowance.” } _ § 619. If we look at the reason oh which the doctrine of . alimony rests, we shall see, that, properly and justly, the cases must be rare in which less than one third of the income is to be given for alimony. The law ’seems to recognize the right of the wife to use one third or more of the common estate, in its rules concerning dower and the distribution of the effects of a deceased husband. And in reason the wife, living sepa- rate from her husband, should be permitted to. spend. one third as much for her living as he for his. This would be making no allowance for the fact, that she is the abused party, and, if money could do any thing to bind up the wounds inflicted by the husband, his money should be ordered into this service. When we look at the cases, we do find some in which less than a third is apparently given. Thus, where the husband was a seller of venison, and his busi- ness yielded 300/. per annum, the wife was allowed 75/. only? Where he was a working jeweller, in the net receipt of 3004, the wife’s alimony was 80/3 In a case of great profligacy on the part of the husband, where his income was 4,000/, the wife was allowed 600/. in addition to her own separate income of 120/.; but there the husband had twelve children to main- tain, educate, and advance in life4 We may however ob- serve, that, in most and probably all the cases in which the allowance has been greatly less than the usual standard, this departure from it, is, on an equitable view, only apparent, not 1 Kempe v. Kempe, 1 Hag. Ec. 532, 3 Eng. Ec. 233. In Lord Pomfret’s case, the income was 12,000/. per annum, the alimony given was 4,000/.; the larger part of the fortune had come from the wife, and there was no family ; but the husband was a peer, and had his rank and dignity to support. Cited in Otway v. Otway, 2 Phillim. 109, 1 Eng. Ec. 203, 204. See also Mytton v. Mytton, 3 Hag. Ec. 657, 5 Eng. Ec. 249; Westmeath v. West- meath, 3 Knapp, 42. , ; * Briggs v. Briggs, cited in Cooke v. Cooke, 2 Phillim. 40, 1 Eng. Ec. 178. 3 Dawson v. Dawson, cited Ib. * Durant v. Durant, 1 Hag. Ec. 528, 3 Eng. Ec. 231. [599 ] § 6194 THE CONSEQUENCES OF DIVORCE. [BOOK VI. real. For instance, where a husband has a family of children to support, his true income, as a foundation for alimony, is what remains after the proper and reasonable expense of providing for them is deducted. And where the husband, not in possession of a fortune, is obliged to rely on his personal labor and exertions, the wife should also contribute hers to the general fund;? so that, if the husband earns, for example, a thousand dollars per year, and the wife two hundred, and the court allows her two hundred dollars alimony,? she re- ceives in reality one third, though apparently but one fifth, of the income. ‘§ 6194. Thirdly. Considerations relating to both kinds of Alimony. In several places, during the discussions of this chapter, we have departed from the nude statement of the law as set down in the decisions of the courts, to see what is the true legal doctrine underlying this title. And as this matter of alimony seems to be little understood by our American tribu- nals, neither practitioners nor judges will complain if the au- thor here unfolds a little more fully, how the question appears to him to lie. When a breach of matrimonial duty has been committed, sufficient in extent and kind to authorize the injured one to separate from the offender, — evidently, on reasons already given,’ the offender should pay to the other as much as will place the other in a pecuniary condition equal to what would be enjoyed if the breach had not taken place. This proposition is plain, as one relating to strict right and claim. It is also plain, that, beyond this point, if the court can properly go beyond, is a large range for impos- ing damages in compensation for an injury inflicted. But, in reason, can the court go beyond? That damages are done is certain. Certain also is it, that the law provides no action in which to recover these damages, unless the suit for divorce is this action. Now we have, first, the damages suffered; sec- 1 Ante, § 537d, 560, note. 7 Ante, § 611. * Ante, § 560 }, 560 c. [ 600 ] CHAP. XXVII.] ALIMONY. § 619 ¢ ondly, a proceeding established by law, wherein the judge has a discretion to award money, and no specific rule either of statute or common law established to limit the discretion below a consideration of the damages. The result seems therefore to be, that, in awarding alimony, the court should take this matter into its consideration. But- even if this is not directly done, still the view thus presented should prompt the judges in awarding alimony, to lean in favor of the wife, injured by the husband’s conduct, in all cases where they en- tertain doubt. : §619b. Another matter to be properly borne in mind, while yet the courts have no power directly to act upon it, is, that, in reason, the husband, under some circumstances, when he obtains a divorce from his wife, should have alimony of her! But these circumstances are few; because our law — that is, our common law — puts the property into the hands of the husband, to be used by him for his own support, and the support of his family. Yet legislation in some of the States is setting strongly in a direction ultimately to exhibit the spectacle of rich wives supporting poor husbands; and of husbands defrauding their creditors, while wealth embraces them in the arms of their wives. This condition of things is for the legislatures, not the courts; but the courts, seeing these things, may see reason also, why they should not feel com- punction, when in a proper case, they withhold all allowance of alimony to wife. § 619¢. Finally, the award of alimony should be made with a constant reference to the husband’s temptation, having wronged his wife already, to wrong her out of what the court allows. And while the judge will exact of him such security as the statute or the rules of unwritten law applicable to the case may authorize, he will also be pressed by this considera- 1 Ante, § 612 a. 51. [ 60! ] § 620 THE CONSEQUENCES OF DIVORCE. [BOOK VB. tion into giving her, while his mandate is useful to her, the full sum to which the circumstances of the case point. VIII. Statutory Alimony on Dissolutions of Marriage. _ §619d. The foregoing principles concerning alimony and its amount have been chiefly, not wholly, drawn from the fountains of the English law. To what extent, or whether at all, they should be modified in this country may depend somewhat on the peculiar jurisprudence, and the peculiar lan- guage of the statutes concerning alimony and divorce, of the particular State in which the question arises. In the course of the foregoing discussions, some suggestions have been made from which the views of the writer on such points may be learned. § 620. Probably, in the United States, the cases will be rare in which the wife will be entitled, on any general princi- ples, to so large a proportion as one half of the husband’s income for her alimony. For by the statute law of the States generally, the court is authorized to restore to her, especially if the divorce is from the bond of matrimony, the property which the husband received in consequence of the marriage ; and, when this is done, an important element in the cases where the one half allowance has been made, will be wanting. Indeed the tendency of many of the American authorities, if any tendency can be imputed to them, seems to be to put the proportion at a point lower than the English. Even in the case of Burr v. Burr, where the cruelty had been very flagrant, and ten thousand dollars per annum was allowed the wife for alimony, this sum appears not to have been more than one sixth, or one fifth, or at most one third, of the probable in- come; though the decision did not apparently proceed alto- gether on the idea of giving her a precise proportion. We may notice, however, in respect to this case, that the husband had one son by a former marriage to provide for, and that the wife did not bring any considerable proportion of the property { 602 } CHAP. XXVII.] ALIMONY. § 620 a to him; elements which, we have seen,! would operate to make the amount of. her alimony less? A wife in Maryland was allowed a third,’ and there are other American precedents for a third;+ and, in one case, Chancellor Walworth observed : « As the defendant, cannot marry again during the life of the: complainant, and therefore will not want property for the’ support of a family, if the wife had been perfectly discreet, prudent, and submissive to her husband, I should have allowed her half of this property.”® In another case the same learned judge remarked: “ When the amount of the estate is consid-- erable, it is usual to allow the wife, for. permanent alimony, from one fourth to one half thereof, where she is not to have the custody of the children of the marriage.”® Yet, in truth, the majority of the American cases shed but little light on this subject, which has been less illumined by the rays from our American juridical science, than almost any other within their appropriate range.” § 620 a. If we follow the reason on which the law of ali- 1 Ante, § 612. ® Burr v. Burr, 7 Hill, N. Y. 207, 212, 10 Paige, 20, 38. * Ricketts v. Ricketts, 4 Gill, 105. * Taylor v. Taylor, 4 Des. 167; Peckford v. Peckford, 1 Paige, 274; Armstrong v. Armstrong, 32 Missis. 279, 291; Miller v. Miller, 6 Johns. Ch. 91; Williams v. Williams, 4 Des. 183. Here one third was allowed to the wife, and the care of the daughters committed to her; and she was to be further paid such sum for their support as should be sufficient to board and educate them. 5 Peckford v. Peckford, supra. * Lawrence v. Lawrence, 3 Paige, 267. _ 1? The following additional cases may be consulted : Thornberry v. "Thorn- berry, 4 Litt. 252; Fishli v. Fishli, 2 Litt. 387; Clark v. Clark, Wright, 2253 White v. White, Wright, 138; Amsden v. ination: Wright, 66 ; Roberts v: Roberts, Wright, 149 ; Miller v. Miller, Saxton, 386 ; Richmond. Richmond, 1 Green Ch. 90; Harrere v. Barrere, 4 Johns. Ch. 187; Bedell v. Bedell, 1 Johns. Ch. 604; Prather v. Prather, 4 Des. 83; Orrok v. Orrok, 1 Mass. 341; Stewartson v. Stewartson, 15 Ill. 145; Rees v. Rees, 23 Ala. 785; Rudman | *’ wo. Rudman, 5 Ind. 63; Swearingen v. Swearingen, 19 Ga. 265; Wheclere: ‘Wheeler, 18 IL 39; King v. King, 28 Ala. 315; Snover v. Shower, 2 Stock. 261. [ 603 J § 621 THE CONSEQUENCES OF DIVORCE. [Boox v1. mony rests, we shall be persuaded that the English courts have erred rather in giving too little than too much. And nat- ural was it for them to err in this direction; because they, were sitting under a system of laws the policy of which is not to relieve the injured party, so much as, by all possible means, to keep the parties together; even when the union could bring only misery to them, and bring the institution of marriage itself into disgrace and reproach. Under this sys- tem of laws, therefore, it was natural, perhaps right, to guard closely this institution against the inroad of the notion, that, for any purpose, under any circumstances, was it desirable for. an injured one to leave the cohabitation, unless cohabitation became utterly impossible. In this country, we hold indeed to the sacred character of marriage, to its being an institution of perpetual union between those who enter into it; yet we hold also, that it is not an institution in which the wrongs and suf- ferings of human beings are to be buried beneath the clods of a musty superstition, so deep as to exclude the voice of justice from ever entering there. The-policy of our law, therefore, should be to do justice; and thus to give to the injured wife, not merely what necessity, but what justice, demands. ‘§ 621. It has doubtless occurred also to the reader, that a different principle should perhaps control the courts when al-. lowing statutory alimony on a divorce from the bond of mat- rimony, from what governs them on the divorce from bed and board. If so, then no rules could be drawn from the ‘English jurisprudence to govern when the divorce is from the bond of matrimony ; because, in England, previous to the present year, 1858, no judicial divorces dissolving bonds of a marriage originally valid, were allowed. This exact point seems not to have been considered, to any great extent, by our American judges. In a Tennessee case,! where the court. was called upon to determine the proportion of property it * Chunn v. Chunn, Meigs, 181. [ 604] CHAP. XXVII.] ALIMONY. § 621 would set apart to the wife, under a statute which provided, that, on a divorce from the bond of matrimony, she should have decreed to her such part of the real and personal estate as the court should deem proper, consistently with the nature of the case,1— Turley, J., said: “It is to be observed, that, in England, divorces @ vinculo matrimonii are not allowed by law, but for causes which vitiate the marriage in its inception, and render it void ab initio; therefore all the questions, as to’ what amount of alimony shall be allowed the wife, have arisen upon divorces a mensé et thoro; and the practice in such cases has been, not to decree to the wife absolutely a portion of the real and personal estate of the husband, but. only to allot a certain portion of his income for her support, the payment of which may be secured by being charged upon’ his estate. The reason for this practice seems to be, that the! bonds of matrimony have not been dissolved; that the par- ties are not intended to be restored as near as may be to the’ same situation they occupied before the marriage; that the wife, not having it in her power to establish herself in life again by marriage, has no need for any thing more than a comfortable maintenance; and that the law still looks to a reconciliation between the parties, which would be rendered’ almost impracticable, if the property were divided absolutely, each one taking his own. Yet it may be observed, that, in the case of Smith v. Smith, the court says: ‘As itis a rule. of equity that no man shall take advantage of his ‘own. wrong, perhaps it would be just, that, where the husband violates the matrimonial engagement, and the fortune origi- 1 Stat. 1799, c. 19, which has since given place to Stat. 1835, c. 26. The latter statute, says the court, “makes different provisions, and only author- izes the court to allot alimony, in cases of divorce a vinculo, as in cases of divorce a mens.” Chunn v. Chunn, supra. Yet see Robinson v. Robinson, | 7 Humph. 440, and Payne v. Payne, 4 Humph. 500, where a division of the property was made. 2 Smith v. Smith, 2 Phillim. 235, 1 Eng. Ee. 244, and referred to in Poyn- ter Mar. & Div. 252, note. s: p. in Cooke v. Cooke, 2 Phillim. 40, 1 Eng. Ec. 178. sue [ 605] § 623 THE CONSEQUENCES OF DIVORCE. [BooK vI. nally belonged to the wife, he should give back the whole of it? There seems to be much reason in this remark; a con- trary practice, however, has prevailed in England, which, as applicable to divorces a mensd et thoro, we would have no dis- position to unsettle. § 622. “But,” continues the court, “in our opinion, a very different rule of practice ought to be applied to cases of di- vorce a vinculo matrimonii. There the bonds of matrimony are dissolved; there the parties are intended to be restored, as near as may be, to the same situation they occupied before the marriage; there the wife has it in her power to establish herself again by marriage; and there the law looks to no future reconciliation between the parties. Accordingly it has always been held in England, that, in cases of divorce a vinculo matrimonii, the wife shall take all the property which belonged to her at the time of the marriage. But it is said, this was because the marriage was void ab initio, and the husband acquired no right to her property by the mar- riage. This is true; and, therefore, there is no necessity of a decree of a court divesting his title ; but this proves nothing more than the truth of the proposition, that the husband ac- quired no right by the marriage. It does not prove, nor tend to prove, that it would not have been equity and justice to have divested these rights, if he had acquired any. On the contrary, no one can doubt, that, when the bonds of matri- mony are dissolved, the parties ought to be placed as near as may be in the same situation they occupied before the marriage.” And the court, in this case, proceeded to make a division of the estate —a topic, however, which we shall con- sider by itself in the next chapter — according to the princi- ples here suggested.+ § 623. If we accede to the propriety of the views stated by the Tennessee court, as quoted in the last two sections, * Chunn v. Chunn, Meigs, 131. [ 606 } CHAP. XXVII.] ALIMONY. § 6235 | the result still may be, that they are not to be applied in adjusting alimony. And perhaps the theory of alimony is to leave the parties, as to property, substantially as though no cessation of the cohabitation had taken place ; and the theory of the division of the property, under the statute, to leave them substantially either as though the marriage had been originally void, or as though it had been dissolved by death. But be this as it may in regard to the division of the property, —a matter to be treated of in our next chapter, — the court, in awarding alimony, on the divorce from the bond of matrimony, should consider the very different property relations which follow such a divorce, by operation of law, from those which follow the divorce from bed and board. § 623 a.. And if, after the divorce from the.bond of matri- mony, the parties should marry again, a question of some embarrassment would arise, as to what change of alimony should then be made. On this question we have no reported cases. tent orth § 6236. There are some plain propositions of common sense, governing this matter of alimony on a divorce from the bond of matrimony; as follows. First. The innocent. party should not be left to suffer pecuniarily for having been com- pelled, by the conduct .of the other, to seek the divorce. Secondly. The wife, made thus in a certain sense a widow, should not usually be set back simply where she stood, in point of property, when she entered the marriage. She has given her time, her virginity, her earlier bloom, where she ‘has been rewarded with only ill-faith, in return for her faith. Thirdly. She should not stand worse than if death, instead of divorce, had dissolved the connection. [ 607 ] '§ 624 THE CONSEQUENCES OF DIVORCE [Book VI. CHAPTER XXVIII. RESTORATION OF PROPERTY TO THE WIFE AND DIVISION OF PROPERTY. Sect. 623c. Introduction. 624-629. The Division of the Property. 630, 631. The Restoration to the Wife of her Property. § 623 c. Tue statutes of the States of this country generally provide, especially on divorce from the bond of matrimony, that the court may order the husband to restore to the wife, when she is the innocent party, and some statutes even when she is not, a‘part or the whole of the property the husband received by the marriage. And in several of the States we have the provision, that, on the divorce from the bond of matrimony, the court may divide the property between the parties; this provision being in words and effect not exactly uniform in the States which have adopted it, and being a substitute for the allowing of alimony. Let us contemplate the two provisions as follows: I. The Division of the Property ; II. The Restoration to the Wife of her Property. I. The Division of the Property. § 624. Let us, coming now to the consideration of this subject, follow up the discussion wherewith the last chapter was closed; and inquire further after the principles to be ap- plied in determining the wife’s proportion, on making the. division now under consideration. In Tennessee, we have seen, the doctrine is laid down substantially, to divide the property as the law would have done if the marriage had [ 608 ] CHAP. XXVIII.] RESTORATION AND DIVISION OF PROPERTY. § 625 been pronounced void from the beginning.) But this is not the rule of damages prevailing in respect to other contracts broken; except at the election of an innocent party, in cases where he is allowed to repudiate the contract altogether, and | treat it as a nullity from the beginning. And often it would be unjust to send away the injured wife with simply what she brought to her husband, or with it and a further sum merely in compensation for her services rendered since the marriage. Indeed, the Kentucky court has expressly decided against this rule ;? and, in Tennessee, the doctrine would not probably be applied in circumstances where its application would be unjust to an injured wife; for in this State it has also been held, in a case which still sheds but little light on the subject, yet where no property appears to have come to the husband through the marriage, that, upon a divorce a vinculo the wife is entitled toa fair proportion of her husband’s estate for her support, and that the amount is within the legal discre- tion of the Chancellor, subject to the revision of the Supreme Court. Buta decree substantially setting apart half the hus- band’s land to the wife and half to him, during their respec- tive lives, with remaiuder.to their children, was considered to be objectionable as giving her too much, and so not warranted by law. ep eee § 625. Another proposition appears to have been, to give the wife at least as much as she would be entitled to. if her. husband were dead; but this has nowhere been adopted as an absolute rule Perhaps, as a principle ordinarily applicable, the innocent wife should neither receive less than she brought to her husband, nor less than she would be entitled to if he * Ante, § 622; Payne v. Payne,4 Humph. 500. And see ante, § 621 and note. = ? Wilmore v. Wilmore, 15 B. Monr. 49._ * Robinson v. Robinson, 7 Humph. 440. This is not quite the entire de- cree upon the subject. And see ante, § 621, note. * Thornberry v. Thornberry, 4 Litt. 251; Jeans v. Jeans, 2 Harring. Del. 142. [609 J § 626 THE CONSEQUENCES OF DIVORCE. [BOOK VI. were dead, leaving the way open for less in very special cases; and, on the other hand, giving her more, where more would be required on a just and cautious application, to the peculiar circumstances of the individual case, of doctrines such as we have been considering under the title alimony.1_ In the Ken- tucky Court of Appeals, it was once observed: “ What should be the proportion of each party in the division is left, by the law, in the discretion of the court. This case is one in which we think the court ought to decree as great a proportion to the wife as any which could occur would authorize. The parties are without children, and the wrong done by the de- fendant, by deserting the complainant, is groundless and with- out pretext. We think she ought to be decreed the use, for life, of one third of his real estate, and a moiety of his per- sonal estate.” ? § 626. Under statutes authorizing a division of the prop- erty, it is customary, at least it has been practised, to give a portion to the wife, though she is the guilty party. And this. practice has sometimes been carried to the very verge, when viewed in the light of the wholesome rule, that one shall not profit by his own wrong. Thus in Alabama, the statute requires the court, on pronouncing a divorce, “to order and. decree a division of the estate of the parties, in such way as to them shall seem just and right, having due regard to the. rights of each party and their children, if any; provided, however, that nothing herein contained shall be construed to cornpel either party to divest him or herself of the title to real estate.” And under this statute it is held, that, though the ' On this subject, the reader may consult the authorities cited supra, in: this section, and ante, § 603-612. And see ante, § 623-623 6. Also Holmes v. Holmes, Walk. Missis. 474, 476; Dejarnet v. Dejarnet, 5 Dana, 499;' Tewksbury v. Tewksbury, 4 How. Missis. 109; Kingsberry v. Kingsberry,' 3 Harring. Del. 8; Maguire v. Maguire, 7 Dana, 181; Sanford v. Sanford, 5: Day, 353. ‘ ? Kishli v. Fishli, 2 Litt. 337. See also Rudman v. Rudman, 5 Ind. 63; Wright v. Wright, 7 Texas, 526. 5 Ante, § 564, 565. [ 610 ] CHAP. XXVIII] RESTORATION AND DIVISION OF PROPERTY. § 626 marriage is dissolved at the prayer of the husband, the guilty wife may claim a maintenance out of his property. Her share will not be as great as when she is the innocent appli- cant; but, it was judicially observed: “ We are clear in the opinion, that no construction can be put upon the statute which would authorize the court, in any case, to do less than provide a maintenance for the wife, if the estate of the husband is sufficient for that purpose. We use the word maintenance in preference to subsistence, because we think the statute evidently contemplated something beyond the mere support. She should be enabled, if her husband’s estate were such as to justify it, to live in such a manner as, that, if possible, she may regain her lost standing in society.” Accordingly where a decree dissolving the marriage was pronounced on application of the husband, for the -cause of the wife’s desertion, — the parties being old, their children being grown up and provided for, the personal estate being valued at $13,685, consisting mostly of slaves, and the real being valued at $1,800, their joint accumulation during the cohabitation, and she having no separate property,—an allowance to the wife of one third of the personal estate absolutely, and the use of one third of the land for her life, was deemed reasonable. And it was further held, that to grant her thus the use of this real estate was not to divest him of his title to it, within the meaning of the statute. * Lovett v. Lovett, 11 Ala. 763. See also McCafferty v. McCafferty, 8 Blackf. 218, an Indiana case, where the court, having decreed that the complainant should pay to the defendant one hundred dollars in certain instalments, and also the costs of the suit, this was held not to be error. The judgment probably proceeded on the Revised Statutes of 1843, v. 33, § 60, p. 604, which provide, that “the court shall, in all cases subordinate to the preceding provisions, regulate the division and distribution of the estate, real and personal, between the parties, and the allowance of alimony to. the wife, or to her and the minor children committed to her care and custody, according to equity and good conscience, having also due regard to the legal and equitable rights of each party; but nothing contained in this article shail authorize the court to divest any party of their title to, or interest in, any real estate, further than i is expressly specified herein.” And see Richardson v. Wilson, 8 Yerg. 67; Sheafe v. Sheafe, 4 Fost. N. H. 564. [611] § 628 THE CONSEQUENCES OF DIVORCE. [BooK VI. § 627. In a Kentucky case, which embraced the singular element, that the court below had erroneously given the hus- band a divorce, to which he was clearly not entitled, while the Court of Appeals had by law no power to disturb, in this respect, the decrce,!—it appearing, that the defendant wife was in every way peculiarly estimable; that she had been fraudulently removed from the home of her husband, who evidently was desirous to get rid of her; that the value of the estate she brought to him on the marriage, he being a widower with several children, and she a maiden lady, was about one thousand dollars; that the value of his estate was from twelve to fifteen thousand, consisting chiefly of land and slaves, — the latter court restored to her the property she originally pos- sessed, and gave her seven hundred and fifty dollars besides. § 628. There has been a question, whether the court, in dividing the estate, must assign to the wife a portion of it in specie ; or whether her allowance may be in money, when the particular assignment is less convenient. A statute of Con- necticut provided, that, on a divorce, “ it shall be in the power of the Superior Court to assign, to any woman so separated, such reasonable part of the estate of her late husband as in their discretion the circumstances of the estate may admit, not exceeding one third part thereof.” The provision being an old one, Brainard, J., observed concerning it: “ This par- ticular section has long received a particular construction, by which, whatever doubts I might have were the statute of re- cent date, I now feel myself bound. The Superior Court, in granting a bill of divorce to the wife, she being the innocent 1 And see Thornberry v. Thornberry, 4 Litt. 252; Maguire v. Maguire, 7 Dana, 181; Boggess v. Boggess, 4 Dana, 307. 2 Pence v. Pence, 6 B. Monr. 496. See, as- further illustrating the topics of the foregoing sections, Fitts y. Fitts, 14 Texas, 443; Trimble v. Trim- ble, 15 Texas, 18; Jackson v. Stewart, 20 Ga. 120; Rourke v. Rourke, 8 Ind. 427; Sharp v. Sharp, 2 Sneed, 496; Houston v. Houston, 4 Ind. 139, 141; Wilmore v. Wilmore, 15 B. Monr. 49; Kashaw v. Kashaw, 3 Cal. 312; Hag- erty v. Harwell, 16 Texas, 663. [612] CHAP, XXVIII] RESTORATION AND DIVISION OF PROPERTY. § 629 ‘party, have, where the situation of the estate would not liter- ally admit of an assignment of a part, uniformly decreed the payment of a sum of money. ‘This practical construction seems clearly to be within the equity of the statute, the ob- ject of which was, a reasonable allowance to the innocent and unfortunate wife, out of the estate of an offending and un- principled husband. A different construction would put it in the power of the husband, owning a large real estate, for the purpose of defrauding an innocent and distressed wife, to dis- pose of the whole, convert it into*money, and leave nothing for the decree to operate upon.” Therefore, where the hus- band was an inhabitant of the State of New York, and there owned an estate of 4,500 dollars, but had no property in Con- necticut, yet had appeared by attorney to the wife’s suit; the court decreed, that he should pay her 1,500 dollars, being a sum not exceeding one third part of his estate, together with her costs of suit, and, on failure to pay her, as a penalty, the sum of 3,000 dollars; and this was held not to be error.? We shall presently see, that a similar view of the question has been taken by the tribunals of Indiana and Tennessee? § 629. On the other hand, the Kentucky court, — under an act which, like the statute of Alabama before mentioned, provides, that “the court, on pronouncing the decree of di- vorce, shall regulate and order the division of the estate, real and personal, in such way as to them shall seem just and right, having due regard to each party and the children, if any; provided, however, that nothing herein contained shall be construed to authorize the court to compel either of the parties to divest himself or herself of the title to the real estate,” — held, that the estate must be divided in specie, and that a gross sum of money in lieu thereof could not be de- creed to the wife. The court also held, that it could not, in making this division, take into consideration lands situated ? Sanford v. Sanford, 5 Day, 353; Lyon v. Lyon, 21 Conn. 185, 198. 2 Post, § 629. = Ante, § 626. 52 [ 613] § 629 THE CONSEQUENCES OF DIVORCE. [Book VI. in another State. But when the same wife, the husband having lands in Indiana, brought afterward in Indiana her bill asking for a division to be made of those lands in her © favor, or for alimony out of them, she was refused; and the court held,—the statutes of the two States? being alike, — that the Kentucky tribunal had jurisdiction of the whole mat- ter; that it was not necessary, on granting a divorce, to divide the property in specie, if such division could not be conven- iently or properly made; and that consequently the Ken- tucky tribunal could have decreed to the wife an annuity, or a gross sum of money, in consideration of the lands in Indiana; or could have assigned to her use, out of the Ken- tucky lands, such a share as she would be entitled to, on taking the whole into consideration. If, in point of fact, that: court had failed to do her full justice, the courts of Indiana could not interfere; for the principle, that a matter once adjudicated by a competent tribunal is forever at rest, embraces not only what was actually determined, but what- ever else the parties might have litigated in the cause. Asa general rule, however, the division of the property should be made in specie, not by the decree of a gross sum to be paid the wife. Under a similar statute in Tennessee, it was held to be competent for the court to give the wife alimony, instead of a specific portion of the husband’s property. In Iowa the statute provides, that, “when a divorce is decreed, the court may make such order in relation to the children and property of the parties, and the maintenance of the wife, as shall be right and proper.” And it is held, under this statute, that, on a divorce in favor of the wife, the court has power to set off 1 Fishli v. Fishli, 2 Litt. 837. See Wilmore v. Wilmore, 15 B. Monr. 49. 2 For the statute of Indiana, see ante, § 626, note. ® Fischli v. Fischli, 1 Blackf. 360; McKinney v. McKinney, cited 1 Blackf. 863. For later Indiana dlaetsions, see Rice v. Rice, 6 Ind. 100; Green v. Green, 7 Ind. 113. * Richmond v. Wilson, 8 Yerg. 67. But see-D’Arusmont v. D’Arusmont, 4 Law Reporter, N. 8. 311, 8 West. Law Jour. 548. And see ante, § 567, 568. [614] CHAP. XXVIII] RESTORATION AND DIVISION OF PROPERTY. § 630 to her a part of the husband’s real estate, to be held by her in fee-simple. II. The Restoration to the Wife of her Property. § 630. In some of the States, the court is expressly author- ized by statute to reinvest in the wife, on granting her a divorce, the property which came to the husband in conse- quence of the marriage? Thus in Virginia, the tribunal which decrees a separation from bed and board may, among other things, “restore to the injured party, as far as practica- ble, the rights of property conferred by the marriage on the other.” Under this provision, the Court of Appeals, reversing the decision of the court below, held, that where, before the bringing of the wife’s petition, on which a decree of divorce from bed and board for the husband’s adultery was pro- nounced, some slaves which were hers before the marriage. were attached by his creditors, —she had no right, as against _those creditors, to have this property restored to her. The court might order a sale of as many of the slaves as, with the hire which had accrued during the pendency of the suit, would be sufficient to pay the debts due the attaching cred- itors, with the costs; and secure to the wife the rest of them, or the funds arising from their hire or sale, as far as prac- ticable, having due regard to the rights of others? If the court passes a general order, restoring to the wife all prop- erty which came to the husband by reason of the marriage ; this order will not give her any right to property consumed or disposed of previous to the divorce; neither can she recover the value of it, in an action of trover against the hus- band.t 1 Jolly v. Jolly, 1 Clarke, Iowa, 9. As to New Hampshire, see Whittier v. Whittier, 11 Fost. N. H. 452. 2 As to Maryland, see Tayman v. Tayman, 2 Md. Ch. 393. 8 Jennings v. Montague, 2 Grat. 350. * Dean v. Dean, 5 Pick. 428. For further points, see Sharp v. Sharp, 2 Snead, 496; Whittier v. Whittier, 11 Fost. N. H. 452. [615] § 631 THE CONSEQUENCES OF DIVORCE. [BOOK VI. § 631. In Delaware it was proposed, on the hearing of a, wife’s application for divorce, to inquire into waste committed by the husband on her land, both before and since the filing of the bill. To this the counsel for the husband objected, on the ground, that, by statute, her real estate was to be restored of course; and, this counsel said, her allowance above that was to be in personal property. The court however received evidence of the waste committed after, not before, the com- mencement of the suit, observing: “The husband would be entitled to all the proper issues from the wife’s land during the marriage ; but, if he has, since the filing of the petition, wantonly wasted the inheritance, the court cannot restore to her all her lands, and make a ‘ reasonable allowance out of the husband’s real and personal estate,” without inquiring into and compensating her for this destruction.” 1 Yet we have seen,” that courts in awarding alimony to the wife look, among other things, to the conduct of the parties toward each other during the cohabitation, and to the amount and value of the property the wife brought the husband. In this aspect, by analogy to the rules relating to alimony, it would seem to be a material fact, which should enter into the determination of the wife’s allowance in the circumstances just stated, that his fund of personal property had been increased in consequence of waste committed on her real estate, before, as well as after, the commencement of her suit. Grubb v. Grubb, 1 Harring. Del. 516. * Ante, § 612. [ 616] AEN CHAP. XXIX.] CUSTODY OF CHILDREN. § 632 CHAPTER XXIX. CUSTODY OF CHILDREN. Scr. 681 a-640. The Doctrine on Authority. 641-648 a. Views of the Doctrine as Resting in Reason. 644, The Provision forthe Support of the Children. 645. Other Orders in the Divorce Suit. § 631 a. Tue subject of the custody of the children during the proceedings for divorce and after their termination does not, in England, belong properly to the divorce law. The ecclesias- tical courts of that country never had jurisdiction upon this matter. But in the United States, the divorce statutes gen- erally give to the tribunal hearing a divorce cause power to direct, during its pendency and afterward, with which of the parties, or with what other person, the children shall be, and to make provision out of the husband’s estate for their main- tenance. § 632. The father is at common law in some sense the guardian of his minor children, though in precisely what sense the books seem not to be agreed.1 When he dies, the guar- dianship devolves, not to its full extent, on the mother ;? but partly so, and whatever guardianship is hers has been held, 1 Macpherson on Infants, 52-62; Miles v. Boyden, 3 Pick. 213; Kenning- ham v. McLaughlin, 3 T. B. Monr. 30; Forsyth v. Kreakbaum, 7 T. B. Monr. 93; Isaacs v. Boyd, 5 Port. 888; Wilson v. Wright, Dudley, Ga. 102; Grif- fing v. Hopkins, Walk. Mich. 49; Jackson v. Combs, 7 Cow. 36. ? Macpherson Infants, 60, 65; Eyre v. Shaftsbury, 2 P. Wms. 103, 116; Roach v. Garvan, 1 Ves. sen. 157,158; Mendes v. Mendes, 3 Atk. 619, 624, 1 Ves. 91; Dedham v. Natick, 16 Mass. 135, 140; Whipple v. Dow, 2 Mass. 415; Heyward v. Cuthbert, 4 Des. 445; Tilton v. Russell, 11 Ala. 497; Jones v. Tevis, 4 Litt. 25. ‘ 52* [ 617] § 632 THE CONSEQUENCES OF DIVORCE. [BOoK VI. perhaps not justly, to continue in her, though she is married a second time. Concerning the latter point, a difficulty arises from the fact, well settled in law, that the second hus- band is not under obligation to support the wife’s children by a former husband, while also he is entitled neither to their services nor their society.2 And indeed other authority rec- ognizes the doctrine, that the second marriage deprives, to some extent at least, the mother of her right of custody over her children by the former marriage. The father is likewise under a strong moral obligation, which the law recognizes, to provide sustenance for his minor children ; to whose earnings he is entitled, while he maintains them, but no longer;* and at common law he may assign to another their services during minority.5 Likewise the mother, being a widow, is entitled to the labor of her children while she supports them;® but there is, doubt, whether she, like the father, can assign their labor to another.’ In England, and generally in this coun- try, perhaps universally, there are statutes under which the father may be compelled, if of sufficient ability, to maintain 1 Villareal v. Mellish, 2 Swanst. 533; Mellish v. DeCosta, 2 Atk. 14. ? Tubbs v. Harrison, 4 T. R. 118; Worcester v. Merchant, 14 Pick. 510; Commonwealth v. Hamilton, 6 Mass. 273. ® The State v. Scott, 10 Fost. N. H. 274. * Benson v. Remington, 2 Mass. 113; Nightingale v. Withington, 15 Mass. 272, 275; Bishop v. Shepherd, 23 Pick. 492; Wodell v. Coggeshall, 2 Met. 89; Shute v. Dorr, 5 Wend. 204; Morse v. Welton, 6 Conn. 547; Chase v. Smith, 5 Vt. 556; Emery v. Gowen, 4 Greenl. 33; The Etna, Ware, 462; Lord v. Poor, 23 Maine, 569; Steele v. Thatcher, Ware, 91; Stone v. Pulsi- pher, 16 Vt. 428; Godfrey v. Hays, 6 Ala. 501; White v. Henry, 24 Maine, 531; Bell v. Hallenback, Wright, 751; Ford v. Monroe, 20 Wend. 210; Hoover v. Heim, 7 Watts, 62; Wilt v. Vickers, 8 Watts, 227; Jennison v. Graves, 2 Blackf. 441; Kennard v. Burton, 25 Maine, 39; Canovar v. Coop- er, 3 Barb.115; Plummer v. Webb, Ware, 75; Stovall v. Johnson, 1 U. S. Mo. Law Mag. 528. * Day v. Everett, 7 Mass. 145; Phelps v. Townsend, 8 Pick. 392; The State v. Shreve, Coxe, 230. * Volentine v. Bladen, Harper, 9; Dedham v. Natick, 16 Mass. 135, 139; Burk v. Phips, 1 Root, 487; Jones v. Tevis, 4 Litt. 25. Contrd, Common- wealth v. Murray, 4 Binn. 487, 488. 1 Morris v. Low, 4 Stew. & P. 123. [ 618} é CHAP, XXIX.] CUSTODY OF CHILDREN. § 632 his children; but it has been contended with great strength of reason and authority, that the common law, though for many purposes recognizing this obligation, cannot enforce it in any civil proceeding. And though it is a popular opinion, which has found its way into the ranks of the legal profession, that a father may be charged for necessaries furnished his minor child against his consent, the same as the husband may, for necessaries furnished his wife; yet the contrary has been held, it being contended that the relation of father and child is not the same in this respect as of husband and wife? While the latter doctrine is probably correct, it is much en- cumbered by apparent authority the other way? The pur- poses of this chapter and this volume are not such as demand of us the careful examination necessary to state positively concerning this matter of conflicting opinion. Yet in reason, 1 2 Kent Com. 190. 3 Cooper v. Martin, 4 East, 76, 84; 1 Bl. Com. 448, note of Christian and others; Gordon v. Potter, 17 Vt. 348. This is a carefully considered case; and the court reject the doctrine of the father’s liability for necessaries fur- nished the minor child, against his consent, both on reason and a mass of English authority. The English cases cited by the court, to this point, are Bainbridge v. Pickering, 2 W. Bl. 1325; Baker v. Keen, 2 Stark. 501; Fluck v. Tollemache, 1 Car. & P. 5; Rolfe v. Abbott, 6 Car. & P. 286; Law v. Wilkin, 6 A. & E. 718; Blackburn v. Mackey, 1 Car. & P. 1; Seaborne v. Maddy, 9 Car. & P. 497; Mortimore v. Wright, 9 Lond. Law Jour. 158. See also Hunt v. Thompson, 3 Scam. 179. ® 2 Kent Com.'191-193; Van Valkinburg v. Watson, 13 Johns. 480; Stanton v. Willson, 3 Day, 37; Hillsboro’ v. Deering, 4 N. H. 86, 95; Pid- gin v. Cram, 8 N. H. 350; Owen r. White, 5 Port. 435. And see Addison v. Bowie, 2 Bland, 606; Newport v. Cook, 2 Ashm. 332; Dupont v. John- son, 1 Bailey Ch. 274; Myers v. Myers, 2 McCord Ch. 214, 264; Cruger v. Heyward, 2 Des. 94; Cowls v. Cowls, 3 Gilman, 485; Dawes v. Howard, 4 Mass. 97; Smith v. Young, 2 Dev. & Bat. 26; Collins v. Srunker, 1 U.S. Mo. Law Mag. 114. “By the common law of Massachusetts, and without reference to any statute, a father, if of sufficient ability, is as much bound to support and provide for his infant children, in sickness and in health, as a husband is bound by the same law and by the common law of England to support and provide for his wife.” Metcalf, J.,in Dennis v. Clark, 2 Cush. 847, 352. Sce further, as to Massachusetts, Hancock v. Merrick, 10 Cush. 41. [619] § 633 THE CONSEQUENCES OF DIVORCE. [Boox vr. though the father might in law be compelled to support his children, by a process instituted for that purpose, still, to allow the child to pledge the father’s credit, against the father’s consent, would be to encourage disobedience in one not ar- rived to years of discretion. On the other hand, the wife has reached her years of discretion ; while, though in a sense she is to be obedient to her husband, yet she is not to be so in precisely the same sense as a minor child. § 633. There is also a sense in which, primé facie, the father is entitled, not only as against the rest of the world, but as against the mother likewise, if the parents are living apart, to the custody of the children, of both sexes, during the entire period of their minority. But this right is not an absolute one; and it is usually made to yield when the good of the child, which, especially according to the modern Amer- ican decisions, is the chief matter to be regarded, requires it should? If a father turns his child out upon the world with- 1 Sumner v. Sebec, 3 Greenl. 223; Commonwealth v. Nutt, 1 Browne, Pa. 143; Kiffin v. Kiffin, cited 1 P. Wms. 697, 705; Macpherson on Infants, 143; Allen v. Coster, 1 Beay. 202; Wellesley v. Wellesley, 2 Bligh, n.s. 124; Whitfield v. Hales, 12 Ves. 492, and note to Sumner’s ed. 2 The State v. Smith, 6 Greenl. 462; United States v. Green, 3 Mason, 482; Matter of Kottman, 2 Hill, S. C. 363 ; People v. Mercein, 3 Hill, N. Y. 399, 8 Paige, 47; The State v. Paine, 4 Humph. 523 ; Steele v. Thacher, Ware, 91; People v. Chegaray, 18 Wend. 637; People v. , 19 Wend. 16; Matter of Toulmin, R. M. Charl. 489; Mercein v. People, 25 Wend. 64; The State v. Clover, 1 Harrison, 419; Rex v. Greenhill, 6 Nev. & M. 244; De Manneville v. De Manneville, 10 Ves. 52, and note to Sumner’s ed.; Ball v. Ball, 2 Sim. 35; Jackson v. Hawkey, Jacob, 264; 2 Kent Com. 194; Wood v. Wood, 3 Ala. 756; The State v. King, 1 Ga. Decis. 93; Rex v. Delaval, 3 Bur. 1434, 1436; Wellesley v. Beaufort, 2 Russ. 1, affirmed in the H. of Lords, 1 Dow & Cl. 152; Rex v. DeManneville, 5 East, 221; Rex v. Moseley, 5 East, 224, note; Holcombe’s Eq. 259; Commonwealth v.Max- well, 6 Law Reporter, 214; Ex parte Schumpert, 6 Rich. 344; Ahrenfeldt v. Ahrenfeldt, 1 Hoffman, 497. And see a very recent English case, of great interest, in which the Vice-Chancellor says: “ When the court refuses to give possession of his children to the father, it is the paramount duty of the court to do so for the protection of the children themselves; and the [ 620] CHAP. XXIX.] CUSTODY OF CHILDREN. § 634 out caring for him, he relinquishes thereby his parental right to the custody of the person of the child, whom he thus ab- solves also from the “duty of filial obedience! And the law may require a father to support his children, after he has for- feited his right to their control or custody.2 But this subject we shall not have occasion to examine minutely, since it does not lie directly in the line of our investigations; and it is alluded to here only to introduce another? § 634. As already observed,! this matter of the custody of children, during and after a suit for divorce between the par- ents, is to be regulated, in the States generally of this coun- try, by the court hearing the divorce cause, according to its dis- cretion. The statutes provide in substance, that, during the pendency of such a suit, and also on the final decree for a di- vorce or separation, the court may make any proper order con- cerning the custody, care, education, and maintenance of the court will perform that duty if the father has so conducted himself, as that it will not be for the benefit of the infants that they should be delivered to him, — or if their being with him will affect their happiness, — or if they can- not associate with him without moral contamination, — or if, because they associate with him, other persons will shun their society.” Anonymous, 2 Sim. n. s. 54, 11 Eng. L. & Eq. 281, 290. And see, further, The State v. Stigall, 2 Zab. 286 ; In re Hakewell, 22 Eng. L. & Eq. 395; People v. Por- ter, 1 Duer, 709; Tarkington v. The State, 1 Cart. Ind. 171; Lindsey v. Lindsey, 14 Ga. 657; In re Hakewell, 15 Eng. L. & Eq. 599; The State v. Scott, 10 Fost. N. H. 274; Gishwiler v. Dodez, 4 Ohio, n. s. 615. 1 Stansbury v. Bertron, 7 Watts & S. 362. And see Shelley v. West- brooke, Jacob, 266; Wellesley v. Beaufort, 2 Russ. 1; Mytton v. Holyoake, cited Macpherson on Infants, 149; Clinton v. York, 26 Maine, 167. * Macpherson on Infants, 142; Cowls v. Cowls, 3 Gilman, 435. ? The reader will find the English authorities collected in Shelford Mar. & Div. 677 et seq.; and in Forsyth on the Custody of Infants. I have not undertaken to state the doctrines which are the subject of this section, with more than general accuracy ; neither have I thought well to trace them into the numerous subtle and technical distinctions by which their general equity is sometimes made to vanish from practical observation. The authorities * cited are only a part of what are found in the books, but the reference to them will be convenient to the reader. , * Ante, § 631 a. t [621] § 635 THE CONSEQUENCES OF DIVORCE. [BooxK VI. minor children of the marriage; which order may be modified or changed from time to time, like a decree for alimony. Probably both the intent and effect of ‘every such statutory provision is to abrogate, in cases to which it is applicable, any superior common law right the father has, over the mother, to the custody of their mutual offspring. “I look upon this statute,’ observes Hoffman, Assistant V. C., “ especially when a decree has been pronounced for a separation, as neutraliz- ing the rule of the common law; as annulling the superi- ority of the patria potestas, and placing the parents on an equality as to the future custody of the children, even if it does not create a presumption in favor of the wife,” where she is the injured party. “And this is the case, because no decree for a separation can be pronounced, without evidence of such a violation of duty in one relation of life as implies a probability of the disregard of every other.” ? § 635. We have observed also,? that the English ecclesias- tical tribunals never had the jurisdiction thus committed to our courts, on the hearing of divorce causes. In England, while divorce causes were heard in those courts, the powers now under consideration were exercised, imperfectly and partially, by the equity and common law tribunals of the country; the Ecclesiastical Court going merely to the extent, in some in- stances, where, for very clear reasons the mother should be permitted to retain the child, of refusing in the award of ali- mony to consider, as diminishing the amount, that the hus- band will have the child to support. But there is a question, whether, when the jurisdiction over a cause of divorce is committed to a court of equity, that court may not, without 1 Cook v. Cook, 1 Barb. Ch. 639; Codd v. Codd, 2 Johns. Ch. 141; Laurie v. Laurie, 9 Paige, 234; Barrere v. Barrere, 4 Johns. Ch. 187; Hansford v. Hansford, 10 Ala. 561; Paige on Div. 302; Collins v. Collins, 2 Paige, 9. * Ahrenfeldt v. Ahrenfeldt, 1 Hoffman, 497. 3 Ante, § 6314. * Greenhill v. Greenhill, 1 Curt. Ec. 462, 6 Eng. Ec. 376, 378; Smith v. Smith, 2 Phillim. 152, 1 Eng. Ec. 220; ante, § 618. [ 622 J CHAP. XXIX.] CUSTODY OF CHILDREN. § 636 \ further statutory aid, determine in the divorce suit the matter of the custody of the children. Those equity tribunals which have granted alimony without authority from express statutes,1 have exercised, in the same suit, this jurisdiction also.2 So where there were two statutes, “the one providing for the disposition of the children in all cases of separation, when neither party shall obtain a divorce; the other, investing the Court of Chancery with power, in cases of separation, to de- termine the same questions with respect to the children, upon the petition of either party,” — it was decided, that this matter might be adjudicated in the divorce suit.? § 636. The courts have not laid down exact rules to guide their discretion concerning which of the parties, on a divorce, shall be intrusted with the custody of the children; probably the subject admits not of such rules. The leading doctrine is to consult the good of the children, rather than the gratifi- cation of the parents* Therefore an agreement on this subject, between the parents, before the decree of divorce is rendered, can have no controlling influence; for they are not the persons whose interests are primarily to be consulted.® The proposition is generally true, that one who has con- ducted either well or ill in a particular domestic relation, will conduct the same in another; and so, as a general practice, the courts give the custody to the innocent party; because, with such party, the children will be more likely to be cared for properly.® 1 Ante, § 552 et seq. ? Williams y. Williams, 4 Des. 183; Anonymous, 4 Des. 94; Prather v. Prather, 4 Des. 33. 3 Hansford v. Hansford, 10 Ala. 561, 563. * Barrere v. Barrere, 4 Johns. Ch. 187; Cook v. Cook, 1 Barb. Ch. 639; Ahrenfeldt v. Ahrenfeldt, 1 Hoffman, 497. And see Trimble v. Trimble, 15 Texas, 18. 5 Cook v. Cook, 1 Barb. Ch. 639. Bedell v. Bedell, 1 Johns. Ch. 604; Kingsberry v. Kingsberry, 3 Harring. Del. 8; Codd v. Codd, 2 Johns. Ch. 141; Jeans v. Jeans, 2 Harring. Del. 142,.where there were two daughters and one son, and the court gave to [ 623] § 637 THE CONSEQUENCES OF DIVORCE. [Book VI. § 637. The influence of example, especially the example of parents, is controlling over the minds of young children;! so when a husband had introduced a mistress into his house, under the observation of his children, the court gave the cus- tody of the daughters to the wife, — not including the sons in the order It has been considered, that a single act of adul- tery would not of itself exclude a husband, absolutely and for ever, from the care of his infant children, if the court should be satisfied he had abandoned his licentious intercourse, becoming thoroughly reformed.2 And in Pennsylvania it has been held, that, after a divorce from the bond of matrimony has been granted the husband, on account of the wife’s adultery, it is not a matter of course for the court, on a writ of habeas cor- pus, to remove the children from her custody into his, even though she is living in adultery. The court will look into the circumstances, and make such order as the good of the chil- dren requires. And, in a case of this sort, the court re- fused at first to take the children from the mother;* but, on a subsequent application, three years having been added to their age, and the father’s circumstances having slightly changed, they were committed to him. So the Ohio court, the plaintiff wife the custody of the daughters only ; Clark v. Clark, Wright, 225; Hansford v. Hansford, 10 Ala. 561; Bascom v. Bascom, Wright, 632; People v. Mercein, 8 Paige, 47; Richmond v. Richmond, 1 Green Ch. 90; Cook v. Cook, 1 Barb. Ch. 639. 1 See Barrere v. Barrere, 4 Johns. Ch. 187, 197; Anonymous, 2 Sim. n. 8. 54, 11 Eng. L. & Eq. 281. * Williams v. Williams, 4 Des. 183. This was a suit for alimony only, not for divorce. Probably on decreeing a divorce in such a case, the courts generally would commit the care of the sons as well as the daughters to the mother. Where parties had lived together unhappily, and on the whole the court saw proper to grant alimony to the wife, who, on account of matrimo- nial differences, had left her husband, he was permitted to have the nurture and education of the child, a daughter, under his own control; she to have access to her. Anonymous, 4 Des. 94,102, — 8 Cook v. Cook, 1 Barb. Ch. 639. * Commonwealth v. Addicks, 5 Binn. 520. 5 Commonwealth v. Addicks, 2S. & R. 174. In Valentine v. Valentine, 4 Halst. Ch. 219, the custody of a child was at first given to the mother on account of its tender years, and afterward transferred to the father. [ 624 ] CHAP. XXIX.] . | CUSTODY OF CHILDREN. § 638 on decreeing a. divorce. for a single act of adultery by the wife, where there was hope of her reformation, committed the younger child to her, giving the custody of the other to the father. The like order was made in a case of not very fla- grant desertion by the wife; who was to be permitted, also, intercourse with such of the children as were intrusted to the father’s care.” § 638. Sometimes a person not altogether worthy to have the charge of children obtains a divorce from another, also unworthy; and then the court may be compelled to choose between parties neither of whom would be selected but from necessity. ‘Thus, where a divorce from the bond of mairi- mony was granted to the husband for the wife’s adultery, the custody of the child was intrusted to him; although an ill- tempered man, who had abused his wife by whom he had been forgiven; and although he had killed, in cold blood, and “in a manner both cruel and inhuman,” the person with whom the adultery was committed.2 So, on the other hand, the court may have to choose between two persons against neither of whom there is any clear objection, as respects the interests of the children. In a New York case, which ‘bore somewhat this complexion, it was intimated by the Assistant Vice-Chancellor, who pronounced, at the suit of the wife, a decree separating her from her husband on account of his desertion and neglect to provide for-her, that perhaps, under the statute, the children might be made wards of court, with proper guardians appointed, and the right of access of the parents to them regulated. He proposed, however, to make an order with the husband’s concurrence, the effect of which would be to givé a sort of equal custody to the parties. But the husband refused to concur, though anxious to have the Dailey v. Dailey, Wright, 514, 517. ? Leavitt v. Leavitt, Wright, 719. J. F.C. v. M. E, his wife, 6 Rob. La. 185. 58 [625 ] § 639 THE CONSEQUENCES OF DIVORCE. [BOOK VI. sole care of the children, and so they were committed to the mother.1 § 639. The mere giving to the wife of the custody of the children, at least the mere appointment of her to be guardian over them, by the legislative act which dissolves, on her peti- tion, the marriage, does not change the legal relation of the father to them, further than concerns the right of guardian- ship. It does not emancipate them; and their settlement in law follows his, not the mother’s, with whom they are living ; and he is relieved from no obligation to support them.? Thus it was held in Connecticut; and further, that, where the parents were divorced by legislative act, and the mother was appointed guardian of the minor children, the father was lia- ble in a suit at common law to compensate her, and a stran- ger whom she had married, for the education and support furnished them? But the New York Supreme Court refused to recognize this doctrine to its full extent; and Platt, J., who gave the opinion, observed: “ The obligation to support the children of that marriage was equal upon both the parents; there being no special contract between the parties, nor any provision upon that subject in the statute granting the divorce. The only provision regarding the children (and'that was made upon the express application and request of [the mother] Mrs. Bird), was, that the father should be divested of the custody and control of them, and that the mother should be their sole guardian. The mother being under equal natural obligation with the father to maintain her offspring, and no positive law of Connecticut being shown on that subject, I can see no legal ground to authorize a recovery by the mother against the father for the maintenance of the children. At most, she a 1 Ahrenfeldt v. Ahrenfeldt, 1 Hoffman, 495. * Marlborough v. Hebron, 2 Conn. 20; Stanton v. Willson, 3 Day, 37; Leavitt v. Leavitt , Wright, 719; Cowls v. Cowie 8 Gilman, 435. 3 Stanton v. Willson, 3 Day, 37. And see the observations of the court, upon this case, in Gordon v. Potter, 17 Vt. 348. [ 626 J CHAP. XXIX.] CUSTODY OF CHILDREN. § 640 can have a right to sue for a contribution only.”?_ And ina very recent Connecticut case, where there had been a judicial divorce on the application of the wife, to whom the custody and control of the minor children were awarded, the majority of the court, two judges dissenting, refused to sustain her action of book debt, against the father, for the cost of main- taining and educating them. The ground of the refusal was, that, after the divorce, the parents were under equal obligation for their support; so that she, at the utmost, could demand no more than a contribution from the father The true legal principle applicable to cases of this .kind seems to be, that the right to the services of the children, and the obligation to maintain them, go together ;° and, if the assign- ment of the custody to the wife extends to depriving the father of his claim to their services, then he cannot be com- pelled. to maintain them, otherwise than in pursuance of some statutory regulation. So where the court, granting the divorce and assigning the custody to the wife, makes, under authority of the statute, provision for their support out of the husband’s estate;* he would seem, within prin- ciples already mentioned,’ to be relieved from all further obli- gation. § 640.. Generally the same statute which authorizes the court to assign, at its discretion, the care of the children to the mother, confers on it also the power to compel the father to furnish her with a fund for their support. And when they are thus committed to an injured wife, they are usually, if the | husband is of sufficient ability, not to be left pecuniarily bur- densome to her. The doctrine appears to be, that such an allowance will be made out of his estate as will fully main- ? Pawling v. Willson, 13 Johns. 192, 209. * Finch v. Finch, 22 Conn. 411. 3 See ante, § 632, and the cases there cited. * Post, § 640. 5 Ante, § 578. [ 627] § 642 THE CONSEQUENCES OF DIVORCE. [Book VI. tain them, in a manner corresponding with his condition in life. § 641. Finding the light to be gathered from the decisions so feeble and uncertain, as it relates to the matter now under investigation, let us turn our minds to those fountains of light which exist inherently in the subject. While the parents are living together in harmony, nature has her de- mands in behalf of the children satisfied in the equal society and care and control given to the common offspring. And as nature looks ever toward the future; as all her arrange- ments, in’ every department of existence, concern primarily the to be, rather than the is or the was; so peculiarly is it, in her institution of marriage. The parents have already re- ceived those early impulses which are to carry them through life ; but the children await the intellectual and moral forces, which, imparted to them, are to determine their hereafter. Consequently the interests of the children are to over- shadow all other interests, in that picture of things whence the judge is to draw his decision of the question of their custody. And though, in a case of balanced interest in the children, the court should consider with which parent is the stronger parental claim; yet, when the interest is not balanced, their own good should lead the decree fixing their custody. § 642. Suppose, in the first place, the interest of the chil- dren to be balanced. With which of the parents, in such a case, is the stronger parental claim? Both united in giving being to the children ; both, each in his or her particular way, have nourished and supported them ; both have their affec- tions drawn toward the objects thus brought into existence, thus nourished and supported. And nature knows no difference, in these respects, between the claims of the par- } Richmond v. Richmond, 1 Green Ch. 90. And see Jeans v. Jeans, 2 Harring. Del. 142; Barrere v. Barrere, 4 Johns. Ch. 187, 197; Williams v. Williams, 4 Des. 183; Anonymous, 4 Des. 94; Bedell v. Bedell, 1 Johns. Ch. 604. [ 628 ] + CHAP. XXIX.] CUSTODY OF CHILDREN. § 643 ents. The doctrine is familiar, that, at common law, the father’s rights are held to be paramount, under ordinary cir- cumstances, to the mother’s. In this doctrine, the common law wears somewhat the grim and hideous aspect which it got in the early days of its existence, from its dwelling among baronial castles, in contact with feudal manners, tossed in the storms, and torn in the outbursts, of half-civilized life. But a further consideration is, that the common law has intrusted to the husband the property belonging to the married pair; and, when the question of the custody of children has come before the common law tribunals, it has usually come under circumstances in which the judge has had authority simply to determine the question of custody, without power over the property of the parties, whence the children were to be sup- ported. And in such a case, plainly the child must ordinarily be put where its hand could reach the food necessary to sustain it, and the clothes to warm it; where also its foot could press the floor of the school to instruct it. The good of the child, in such a case, would thus ordinarily be best pro- moted with the father; and, in the indistinct and half erro- neous language in which truth is often clothed, the expression, that the husband’s claim is paramount to the wife’s, was not unnatural; neither was it unnatural that the courts, fol- lowing precedent, should follow the letter of such a prece- dent, thus expressed, rather than its spirit. § 643. When one of the married parties leaves the other, such party leaves either rightfully or wrongfully. Assuming a cause for leaving to exist, that cause, according to the doctrine laid down in our chapter on Desertion,! would entitle the party to obtain, on suit, a divorce from the other; because, according to this doctrine, no desertion is justifiable in law unless cause for divorce exists. If cause for divorce does exist, then: the deserting one, to avail himself of it, even in a suit concerning the custody of the children, must bring the * Ante, § 524 et seq. 53* [ 629 ] ~ § 644 THE CONSEQUENCES OF DIVORCE. [Book VI. divorce suit; without which suit brought, the court will assume the desertion to be without just cause. To this point, substantially, we have judicial authority. After suit brought, and the result of the litigation ascertained, the court should consider the claims of the innocent party to be superior to those of the guilty. § 643a. Thus stands the question as between the parents. Looking at the interests of the children, we have the following views. During the very young years, especially in the case of girls, the mother can best take care of them, in ordinary circumstances. But in later years, they need the sterner discipline of the father. Yet neither in the case of the younger children, nor in that of the older, are these propo- sitions to be carried to all lengths. The party who has behaved well in the marriage relation will be likely to behave well also in the parental; and so this party should usually have the care of the children. § 644. So also, following up the question in the light of principle, when the court pronounces for a divorce on the prayer of the wife, and gives her the custody of the children ; then, in respect to their support, the rule would apply to the husband, that no man shall profit by his own wrong, and, to the wife, the corresponding rule, recognized by good sense, if not so formally received among the maxims of the legal family, that no one shall suffer for doing right; in pursuance of which, the husband should be charged with the full burden of maintaining the children committed to the wife’s care. Yet if he were a poor man, and so the children would be obliged to labor in part for their support were the cohabitation continuing, this fact should be taken into the consideration ; indeed he should take care of and educate his children, ac- cording to his ability and standing, as shown in the principles ? Commonwealth v. Briggs, 16 Pick. 203. And see People v. Humphreys, 24 Barb. 521. [ 630 } CHAP. XXIX.] CUSTODY OF CHILDREN. § 645 of alimony, already passed under our review. At the same time, a wealthy father should never be compelled by a court to do what many wealthy fathers do voluntarily, lavish on the child money and the luxuries which money brings, till the promptings of nature to do and to suffer, as every human being should do and suffer in this life if he would discharge the duties to himself which the Creator intended when plac- ing man on the earth, — are eaten out by the rust of inactivity, and vice takes possession where virtue should dwell. § 645. We have thus considered the usual orders and decrees which accompany and follow the sentence of divorce ; but the statutes of some of the States contain other provis- ions still. Thus the court in New York, on granting a divorce, may decide upon the legitimacy of children born subsequently to the commission of the offence for which the divorce is given! But we shall find little satisfaction in pursuing these investigations further; since the books do not furnish us with adjudications to point the way. 1 Cross v. Cross, 3 Paige, 139; Van Aernam v. Van Aernam, 1 Barb. Ch. 875 ; Montgomery v. Montgowery, 3 Barb. Ch. 132. [631 ] § 647 THE CONSEQUENCES OF DIVOROE. [BOOK VI. CHAPTER XXX. RESULTS FLOWING BY LAW FROM THE VALID DIVORCE SENTENCE. Srct. 646. Introduction. 647-653. The Sentence of Nullity. 654-675. The Divorce from the Bond of Matrimony; as to — 654. Introduction. 655-6596. The Status of the Parties. 660-675. Property Rights of the Parties and third Persons. 676-691. The Divorce from Bed and Board. § 646. Tu next chapter will be given to a consideration of what may be termed the stability of the divorce sentence, and its binding nature, as concerns the parties and third per- sons. In the present chapter we are to consider, what, sup- “posing the sentence to be valid and to be binding on all the world, comes from it by operation of law. And though, in some portions of the foregoing pages, we have treated of the two kinds of divorce and of the sentence of nullity together, as resting severally on common doctrines, we shall be obliged to depart from that method here; because these three forms of adjudication produce their several distinct consequences. Let us look at, I. The Sentence of Nullity; II. The Divorce from the Bond of Matrimony; III. The Divorce from Bed and Board. J. The Sentence of Nuility. § 647. We have seen, that, where a marriage is void, the sentence of nullity has only a declaratory force; while, where it is voidable, it is to be treated, after the sentence, as having [ 632 ] CHAP. XXX.] FLOWING BY LAW. § 648 been always void. Therefore the results of the sentence, in these two circumstances, are substantially alike; though there are a few points of difference. The general doctrine is, that, after the sentence, the parties are to be regarded legally as if no marriage had ever taken place; they are single persons, if before they were single ;? and their rights of property, between themselves, are to be viewed as having never been operated upon by the marriage. Thus the man neither can claim any personal estate which belonged to the woman, nor have curtesy in her lands She likewise is not entitled to a share in his effects; neither is she, to alimony or to dowert The children are illegitimate, equally whether the marriage were voidable or void ;5 the woman, like any other feme sole, may sue and be sued.® § 648. Where the rights of third persons are concerned, the case as to them is different; particularly if the marriage was voidable, not void.’ And the broad doctrine has been laid down, that, while as between the woman and the man she shall have again all her property, and while as against him all claims extinguished by the marriage are revived, yet otherwise it is as against a stranger But even as against a stranger, if the husband, by collusion with the stranger, gave or sold to him, before the sentence of nullity, the goods of the wife, she, on showing the collusion, may reclaim them So if, without 1 Ante, § 46, 57, 59, 262; Gibs. Cod. 446. 2 «Tf the wife becomes a single woman by operation of law, it is the same as if she had always remained single.” Anstey v. Manners, Gow, 10. ® Aughtie v, Aughtie, 1 Phillim. 201; Zule v. Zule, 1 Saxton, 96; Sellers v. Davis, 4 Yerg. 503; Cage v. Acton, 1 Ld. Raym. 515, 521. And cases cited 2 Bright Husb. & Wife, 365, note (a). * Ante, § 563; Reeve Dom. Rel. 209; Co. Lit. 32a, 8336; 7 Co. 140. 5 Ante, §59; Gibs. Cod. 446. 6 Hatchett v. Baddeley, 2 W. Bl. 1079. See Lean v. Schutz, 2 W. Bl. 1195; 2 Bright Husb. & Wife, 366. T See post, § 652. ® Cage v. Acton, 1 Ld. Raym. 515, 521. ® Br. Deraignment & Divorce, pl. 10; 2 Bright Husb. & Wife, 365. [ 633 J § 649 THE CONSEQUENCES OF DIVORCE. [Book v1. collusion, the husband has aliened his wife’s land, and after- ward the voidable marriage is made void by a sentence of nullity, under Stat. 32 Hen. 8, c. 28, she may enter during the life of the husband.!. And it is laid down in Brooke,? that things executed, where the husband is seized in right of the wife, shall not be avoided by a sentence of nullity ; as waste, receipt of rent, seizin of ward, presentment to a benefice, gift _of. goods of the wife, &c. But that otherwise it is in matter of inheritance ; as if the husband discontinues or charges land of his wife, releases or manumits villein, &c.3 After a mar- riage has been declared void by judicial sentence, it is too late for the husband’s creditors to come in and take the wife’s property for his debts, whatever they might have done be- fore.* § 649. If land is given to a husband and wife, and the heirs of their two bodies; and afterward the marriage, being voidable, is avoided by sentence; neither of them can have the estate, but they are only tenants for life, notwithstanding ‘the inheritance once vested in them. And if, before the di- vorce, the parties are disseized of such land, and the husband releases to the disseizor; the woman, after the divorce, may. have the moiety of it, though there were no moieties before ; for the divorce converts the estate into moieties® “It was held, that, if a lease be made to husband and wife during the coverture, and the husband sows the land, and afterwards they are divorced causa precontractus, the husband shall have the emblements, and not the lessor; for, although the suit is 1 1 Bright Husb. & Wife, 165; 2 ib. 365; Co. Lit. 326a. The statute of Michigan provides, that, upon the dissolution of the marriage by divorce or sentence of nullity for any cause except the adultery of the wife, she is en- titled to the immediate possession of all her real estate, in the same manner as if her husband were dead. Johnson v. Johnson, Walk. Mich. 309. _ ? Br. Deraignment, &c. pl. 18. * 2 Bright Husb. & Wife, 364. -4 Kelly v. Scott, 5 Grat. 479. ° 2 Bright Husb. & Wife, 365, and the authorities there cited. [ 634 J CHAF. XXx.] FLOWING BY LAW. § 651 e the act of the party, yet the sentence which dissolves the mar- riage is the judgment of the law.” } § 650. “In an early case,” to quote from Bright on Husband and Wife? “it is laid down, that, if a man is bound toa feme sole, and afterwards marries her, and afterwards they are divorced, the obligation is revived This case was cited and agreed to by Holt, C. J., in Cage v. Acton;* because the di- vorce, being a vinculo matrimonii by reason of some prior impediment, as precontract, &c., makes them never husband and wife ab initio. But if the husband had made a feoffment in fee of the lands of his wife, and then the divorce had been, that would have been a discontinuance, as well as if the hus- band had died; because then the interest of a third person had been concerned, but between the parties themselves it will have a relation to destroy the husband’s title to the goods. And it proves no more than the common rule; namely, that relation will make a nullity between the parties themselves, but not amongst strangers.” § 651. The doctrine is familiar, that a man is liable for the debts contracted by a woman whom he falsely holds out to be his wife, the same as though she were so in fact. This doctrine would apply even to parties living in cohabitation under a void marriage. If the marriage however were voida- ble, whether there were a matrimonial cohabitation or not, the mere fact of its having been entered into would clearly, of itself alone, and on a different principle, render the husband liable, to the same extent as though it contained no imper- fection.® Yet on its being avoided by sentence his liability ceases. ® 1 Qland’s case, 5 Co. 116 ; 2 Bl. Com. 123. ? 2 Bright Husb. & Wife, 366. * Br. Coverture, pl. 82, cites 26 H. 8, 7, per Fitzherbert & Norwich. * Cage v. Acton, 1 Ld, Raym. 515, 521; but see Dyer, 140, pl. 39. 5 Ante, § 57, ® Anstey v. Manners, Gow, 10. [635 J § 653 THE CONSEQUENCES OF DIVORCE. [BooK VI. - e § 652. The propositions stated in the foregoing sections are applicable to voidable marriages; but it is not clear the rights of third persons would be protected to the same extent, or all the other consequences would follow, where the mar- riage was merely void, and so the decree of nullity wrought no real change whatever in the legal condition of the par- ties. An infant having, in good faith, married a man who had a former wife living ; and her father, ignorant likewise of the impediment, having given her a slave, — it was held, not only that the gift invested the husband with no title to the property, but further, that, though he afterward sold it with her consent, she being still in her minority, the sale conveyed no title as against her to the purchaser. § 653. It has been held, that, if a woman marries a man with a former wife living undivorced, and so his marriage is void, she may, upon bill in equity, compel him to account for the rents and profits of the property he took from her under this supposed marriage, and to redeliver the property to her with its proceeds, retaining for himself the benefit of his im- provements. And where a man deceives a woman into a void marriage, by falsely representing himself to be a widower, while he is not, but has a former wife living, she may also recover of him compensation for her services rendered during the cohabitation with him. The like claim may also be en- forced, on the death of the man, against his estate in the hands of his legal representatives. And in,Lowtisiana it was decided, that a woman under these circumstances can recover, of the estate. of the deceased, a compensation not only for such services, but for the use of her furniture, and the hire of her negroes; together with the money he had received from her, in his lifetime, and money which, after his death, she as his 1 Ante, § 648-651. * Sellers v. Davis, 4 Yerg. 503. * Young v. Naylor, 1 Hill Eq. 383; ante, § 264.- * Higgins v. Breen, 9 Misso. 497. [ 636 ] CHAP. XXX.] FLOWING BY LAW. § 655 executrix had paid to his creditors, until the letters were re- voked on the appearance of the former wife; for “she has a right to be indemnified against the consequences of the de- ceit.” 1 II. The Divorce from the Bond of Matrimony. § 654. Where a marriage is dissolved, having been originally valid, the consequences are quite different from those which follow the annulling of a voidable marriage. On this matter, however, we have only partial light; for, in England, no dis- solutions have been heretofore known of valid marriages, by judicial sentence; and, when parliament has dissolved such marriages by special act, it is said, that the consequence “does not very clearly appear.”2 And in this country, the statutes of some of the States fully regulate the matter ; whence it has arisen, that eur decisions can hardly be said to cover the whole ground. Let us look at the matter as concerns, First, The status of the parties; Secondly, Property rights of the parties and third persons. § 655. First. The Status of the Parties. The approved doctrine is, that a divorce from the bond of matrimony places both the parties, the innocent and the guilty, in the condition of single persons. This indeed has never been questioned, except where some provision in the act or decree, or the general law, has been supposed to work a different result; but the doubt, to any extent, is clearly without support either in principle or any sufficient authority. “ Parliamentary bills of divorce,” says Shelford, “ usually declare, that the bond of matrimony between the parties shall be wholly dissolved, annulled, vacated, and made void to all intents and purposes whatsoever. But express authority to contract a new mar- 1 Fox v. Dawson’s Curator, 8 Mart. La. 94. * 2 Bright Husb. & Wife, 366. 54 [ 687] § 656 THE CONSEQUENCES OF DIVORCE. [BooK VI. riage is given only to the injured party; making it lawful for such party to marry again, and declaring that the chil- dren born in such matrimony shall be legitimate. There is no similar provision for the future marriage of the offending party. It seems more than probable, thai, in the early in- stances of these divorces, it was not supposed or adverted to, that the permission to contract a new marriage could extend to the adulteress. But the subsequent and long acquiescence seems to have established such marriages, or at least entitled them to be established, if any doubt should arise respecting their validity. It is indeed difficult to understand, how a marriage can be dissolved as to one of the parties, without being equally dissolved as to the other. And perhaps it may be concluded, that divorce bills, as now worded, though pur- porting only to relieve the injured party, are a complete disso- lution of the marriage; of which dissolution the adulteress may legally avail herself, unless expressly prohibited by the same act of the legislature. This point was much discussed in the House of Lords in the year 1800; and, although the preponderating opinion seemed to be in favor of the validity of the marriage between the guilty parties, yet some of the speakers entertained doubts.” } § 656. But let us here proceed less rapidly over the ground than we have done in some other parts of our volume, that we may examine in detail the reasons on which the doctrines we are considering rest. In some of the States, the statute declares, that the decree shall dissolve the marriage only as to the innocent party; and then the difficulty is, whether the other can marry again either in the State where the divorce is granted, or elsewhere. In many of the States, the same general law which authorizes the divorce, forbids the guilty party to contract a second marriage; and upon this comes the doubt, whether he may marry in any other State or country. And in respect to the various forms of statutory 1 Shelford Mar. & Div. 476. [ 638 CHAP. XXX.] FLOWING BY LAW. § 657 enactment, we have the query, whether, if the guilty party does marry, he is subject criminally, even in the State which pronounced the divorce, to punishment under the laws against polygamy; and the still further query, -whether, notwithstanding the prohibition, the second marriage, even -celebrated in his own State, is not valid. § 657. Some of these questions have passed to judicial determination. And thereby the doctrine has become es- tablished, that any divorce which releases one party from the marriage necessarily frees the other also, whatever be the terms of it, or of the legislative act under which it is granted ; because there cannot be a husband without a wife, a wife without a husband. If, for example, the statute prohibits the party-in fault from contracting a second marriage, and nevertheless he contracts one; he may be punished crimi- nally under the particular provision, not punished under a provision against either polygamy or adultery.1 In refusing to hold a defendant, in these-circumstances, to be guilty of polygamy, the Supreme Court of New York, by Selden, J., observed: “ The terms husband and wife have a very defi- nite and precise meaning. They are descriptive of persons who are connected together by the marriage tie, and are significant of those mutual rights and obligations which flow from the marriage contract. Until those obligations are assumed, there is no wife; and the term is then applied, not merely to describe a woman who has been married, but as expressive of the relation existing between her and her husband. So long as that relation continues, she is properly a wife; when that ceases, the term is no longer applicable. The decree dissolves the marriage and declares that each party is freed from its obligations. The marriage contract, there- fore, is at an end; not only the complainant in the chan- cery suit [for divorce], but the defendant also, is absolved 1 Commonwealth v. Putnam, 1 Pick. 186; People v. Hovey, 5 Barb. 117. And see Dickson v. Dickson, 1 Yerg. 110, 115; ante, § 126, 129, 195, 197, 911, 212, 655. [ 639 J § 658 THE CONSEQUENCES OF DIVORCE. [Book VI. from all the obligations arising out of that contract. The relation of the parties, consisting of their mutual rights and duties, no longer exists; and it would seem to follow, that the words husband and wife, used to describe that relation, have ceased to be applicable. Certainly the former wife, as to whom the dissolution of the marriage is entirely unlim-. ited, cannot be said, after this decree, to have a husband living; for she might marry again, and thus, if that were so, have two lawful husbands at the same time. But husband and wife are correlative terms, so defined by lexicographers ; which implies, that, whenever one can be properly applied, there must be a person to whom the corresponding term is applicable. If therefore the defendant is no longer the husband of his former wife, then she is no longer his wife. It was urged in the argument, that, while the dissolution of the marriage by the decree was total and absolute on the part of the complainant, it was only partial as to the de- fendant, who remained subject to a portion of the restraints arising from the marriage contract. In answer to this it may be said, that the obligations of the marriage relation are mutual; and the abrogation of them on one side necessarily involves their annihilation on the other; and accordingly the decree itself provides, that each party is freed from those obligations. ‘The restraint of the defendant, as to a second marriage, arises, not out of the marriage contract, or from any continuing obligations to his former wife, but exclusively from the positive prohibition of the statute.” 1 § 658. The same general question came before the Supreme » People v. Hovey, 5 Barb. 117. The statute of bigamy in New York provides, that it shall not extend “to any person by reason of any former marriage which shall have been dissolved by the decree of a competent court, for some cause other than the adultery of such person.” And it is held to be no defence to an indictment for polygamy, that, subsequently to the second marriage, the first has been so dissolved for a cause other than the defendant’s adultery, though the cause occurred prior to the second mar- riage. But if the decree of divorce had been previously rendered, it would be otherwise. Baker v. People, 2 Hill, N. Y. 325. [ 640 J oe CHAP. XXX. ] FLOWING BY LAW. § 658 Court of Tennessee under a different aspect. The Kentucky statute of 1808, c. 31, relating to divorces, provided, that the final decree “shall not operate so as to release the offending party, who shall nevertheless remain subject to all the pains and penalties which the law prescribes against a marriage while a former husband or wife is living;”1 and a woman, divorced in Kentucky for her fault, removed to Tennessee, and there married. The Tennessee court held this marriage to be good. Caton, J., delivering the opinion, observed: “TI have with much perseverance examined and endeavored to find some legal principle, that would avoid the marriage be- tween the petitioner [the wife] and John Dickson [the second husband]; but, to my great regret, I have not been able to find any such principle. I will therefore briefly state what I have found the law clearly to be, and leave to the legislature to do that which this court has not the power todo. Mary May [the petitioner] was legally divorced from her husband, Benjamin May, by the Union Cireuit Court of Kentucky, be- ing a court of competent jurisdiction over the subject-matter and the parties; the decree dissolving the marriage is conclu- sive on all the world.2 The statute of Kentucky provides, that the offending party (the petitioner in this case) shall not be released from the marriage contract, but shall be subject to all the pains and penalties of bigamy. It i8 impossible, in the nature of things, that all the relations of wife shall exist when she has no husband; who, as soon as the decree dissolving the marriage was pronounced: was an unmarried and single man, freed from all connections and relations to his former wife; and equally so was the petitioner freed from all marri- age ties and relations to Benjamin May, in reference to whom she stood like unto every man in the community. Therefore he has no right to complain of the second marriage; who has? Not the Commonwealth of Kentucky, whose penal » See Cox v. Combs, 8 B. Monr. 231. 2 Roach v. Gravan, 1 Ves. sen. 157; Burrows v. Jemino, 2 Stra. 733; Rex v. Roche, 1 Leach, 4th ed. 134; Mills v. Duryee, 7 Cranch, 481; Grant v. Swift, 4 Johns. 34. 54* [641 ] § 658 THE CONSEQUENCES OF DIVORCE. [Book VI. laws cannot extend beyond her own territorial jurisdiction, and cannot be executed or noticed in this State, where the second marriage took place, and the violation of said laws was effected... Had Mary May married a second time in Kentucky, such marriage would not be void because she con- ‘tinued the wife of Benjamin May, but because such second marriage in that State would have been in violation of a highly penal law against bigamy ; it being a well-settled prin- ciple of law, that any contract which violates the penal laws of the country where made shall be void. The inquiry with this court is not, however, and cannot be, whether the laws of Kentucky have been violated by this second marriage, but, have our own laws been violated? The act of 1820, c. 18, against bigamy, declares it felony for any person to marry having a former husband or wife living. Mary May had no husband living, and is not guilty of bigamy by our statute; nor has she violated the sanction of any penal law of this State. No principle of comity amongst neighboring commu- nities can be extended to give force and effect to the penal laws of the one society ex-territorially of the other; and, for many reasons, it would be equally inconvenient, not to say impracticable, to adopt the principle among sister States of the American Union; for which this court has the conclusive authority of the Supreme Court of the United States, in Hous- ton v. Moore, 5 Wheaton, 68.” And the court, besides con- firming the validity of the second marriage, further held, that, though the Tennessee act of 1820, c. 18, against polygamy, made it felony for any person to marry having a former hus- band or wife living, yet this woman, divorced in Kentucky, had not, within the act, a former husband living, neither had she violated any law of Tennessee. * Folliott v. Ogden, 1 H. Bl. 123, 135; Houston v. Moore, 5 Wheat. 1, 69; Commonwealth ». Green, 17 Mass. 515, 540; Scoville v. Canfield, 14 Johns. 338 ; United States v. Lathorp, 17 Johns. 4. * Dickson v. Dickson, 1 Yerg.110. And see ante, § 657; Putnam v. Put- nam, 8 Pick. 433; Cambridge v. Lexington, 1 Pick. 506. But see dicta in Williams v. Oates, 5 Ired. 535, and Mansfield v. McIutyre, 10 Ohio, 27. [642] CHAP. XXX.] FLOWING BY LAW. § 659 a § 659. Likewise a statute, which, in general terms, prohibits the guilty party after a divorce from marrying again, does not apply to one divorced in another State or country. For, observed Parker, C. J., “the criminal laws of a State do not, ex vigore suo, have force beyond the territory of the State which enacts them.”! Indeed it is difficult to find any principle whereon a State could properly inflict either this or any other penalty on one domiciled within its borders, in pur- suance merely of what had before transpired in another coun- try, in which he was then resident. To do this would be giving a force to foreign laws and adjudications quite beyond any ordinary examples either of legislative or judicial deter- mination. And so ina late Massachusetts case, it has been adjudged. § 659 a. There is a New York case, in which, under the statute of New York, the contrary has been laid down by way of dictum, but not decided. The statute provides, that “no second or other subsequent marriage shall be contracted by any person during the lifetime of any former husband or wife of such person, unless the marriage with such former husband or wife shall have been annulled or dissolved for some cause other than the adultery of such person.” And Johnson, J., sitting in the Court of Appeals, said of this ‘statute: “ Its sub- 1 Cambridge v. Lexington, 1 Pick. 506,510. “The statutory declara- tion, that the delinquent party shall never marry again without incurring the penalties denounced for bigamous connections, could not have been intended to apply to husbands who had never been either citizens or domi- ciled residents of Kentucky.” Maguire v. Maguire, 7 Dana, 181, 187. And -see Commonwealth v. Hunt, 4 Cush. 49; Dickson v. Dickson, 1 Yerg. 140; Commonwealth v. Green, 17 Mass. 515; 1 Greenl. Ev. § 376; Morgan v. Pettit, 3 Scam. 529. ? Clark v. Clark, 8 Cush. 385. In Mississippi, the statute expressly gives the guilty party, in all cases after divorce, the right to marry. Powell v. Powell, 27 Missis. 783. A statute prescribing a higher punishment for a second offence against the criminal law than the first, is construed to re- quire the first offence to have been committed in the country wherein the statute has effect. People v. Czsar, 1 Parker, 645. [ 643 ] § 659 a THE CONSEQUENCES OF DIVORCE. [Book VI. ject-matter is the prohibition of marriages within this State, to certain persons who come within its terms. It covers the case of one married abroad and divorced abroad for his own adultery, just as plainly as it does the case of a marriage and divorce for the same cause here.”! We may however ob- serve, that the construction thus intimated is contrary to the doctrine laid down in Tennessee, as before stated ;2 contrary, also, to sound canons of interpretation. Let us test this matter by a few suggestions. For the divorce, pronounced in a foreign jurisdiction, to be recognized as valid in New York, one or both of the parties must have been domiciled at the time of the divorce in the foreign country. Suppose, in the first place, both of the parties had then the foreign domi- cil. When the divorced one goes into New York, how do the courts of New York know such one to be married? They can only inquire, whether the person was a married person in the foreign country, at the time of coming to New York. If they so inquire, they learn, that, in such foreign country no marriage then subsisted ; but, — has not the person a “former husband or wife” living? The international law knows no such relation as that of unmarried persons to former matrimonial partners. If the New York law does, then it must be construed, according to all sound doctrine, as refer- ring oftly to what has been done in New York, not to what has been done in the foreign country. Secondly ; suppose, that, at the time of the divorce, only the complainant was domiciled abroad, while the guilty one was domiciled in New York. The New York courts would then, anterior to the divorce, have held such guilty one (assuming her to be the wife) to be sustaining the status of a married woman. After the divorce, they would hold her to be unmarried, not on account of any direct operation in New York of the decree of divorce rendered in a foreign jurisdiction against a citizen of New York, but simply because then she would have no ? Cropsey v. Ogden, 1 Kernan, 228, 235, 236. 2 Ante, § 658. [644] CHAP. XXX.] FLOWING BY LAW. § 660 husband; and a wife without a husband is a contradiction in terms. Would she have a former husband? Plainly not; because the person once her husband was only such to her in New York by force of the international law, not by force of the New York law. And no New York statute should be construed to repeal or change international law. When the ~statute creates the relation (if indeed it does) of an unmarried woman to a former husband, it must be construed as purely a domestic affair; the husband must have been one under the New York law, not one under the international law. But in truth, the words of this statute should not be construed to create an anomalous domestic relation; and, not being so construed, should be deemed simply to prohibit the mar- riage of the guilty party after a New York divorce, not to refer to what the New York courts cannot take cognizance of, namely, the innocence or guilt of persons under foreign jurisdictions. § 659 b. A query has been already raised in this volume, whether all prohibitions of second marriage to the divorced party should not be construed as operating merely by way of penalty, not as rendering the marriage void, unless express words of nullity are employed. And there are strong reasons for holding this to be their effect. § 660. Secondly. Property Rights of the Parties and third Persons. Coming now to consider:the effect of the dissolu- tion of a valid marriage upon these rights, we must remem- ber, that the decree of divorce, so far from undoing the original marriage, expressly affirms it;? and therefore does not restore the parties to their former condition, but places them in a new one. Consequently all transfers of property which were actually executed, either in law or fact, abide; for example, the personal estate of the wife, reduced to possession by the 1 Ante, § 212. 2 Ante, § 315 [ 645 J § 661 THE CONSEQUENCES OF DIVORCE. [BOOK VI. husband, remains his after the divorce, the same as before.! But we shall see, in subsequent sections, that this divorce puts an end to all rights depending upon the marriage and not actually vested; as dower in the wife, curtesy in the hus- band, and his right to reduce to possession her choses in ac- tion. When, after this divorce, the man dies, the woman is not his widow, and so uo rights which the law gives to widows are hers.? § 661. Dower. Of dower, Lord Coke says: “ Concerning the seizin, it is not necessary that the same should continue during coverture ; for albeit the husband aliens the lands or tenements, or extinguishes the rents or commons, &c., yet the woman shall be endowed. But it is necessary that the mar- riage do continue ; for, if that be dissolved, the dower ceases, ubt nullum matrimonium, tbi nulla dos.’ It is noticeable, however, that he is here speaking of the effect of a decree annulling a voidable marriage ; while possibly we are not to look to the English jurisprudence for authorities concerning the consequences of the dissolution of marriage for causes arising subsequently to its celebration. Still the same doc- trine is considered applicable in the latter circumstances; and so the common law of this country is clearly established, that no woman can have dower in her husband’s lands, unless the coverture were continuing at the time of his death. The rea- son appears to be, that, as the English common law never recognized any right of dower unless the woman were covert when the husband died; our courts cannot create such a right in her, by construction, merely because, in consequence of a legislative enactment, she is found in circumstances unknown to the common law.* And this result is in harmony with the 1 Lawson v. Shotwell, 27 Missis. 630, 636. ? Dobson v. Butler, 17 Misso. 87. * 3 Co. Lit. 32a. * Given v. Marr, 27 Maine, 212; McCafferty v. McCafferty, 8 Blackf. 218; Clark v. Clark, 6 Watts & S. 85, 88; 4 Kent Com. 53, note, 54; Levins «. Sleator, 2 Greene, Iowa, 604; Cunningham v. Cunningham, 2 Cart. Ind. 233; Whitsell v. Mills, 6 Ind. 229. [ 646 ] CHAP. XXX.] FLOWING BY LAW. § 662.4 ° universal doctrine, that the divorce we are considering puts an end to all rights (as the husband’s to the wife’s choses in action and to curtesy) resting on the marriage, and not act- ually vested. ‘ § 662. It is a little remarkable however, that, when this question of dower arose in New York, after having been decided in the way just mentioned in several of the States, with entire unanimity of judicial opinion ; it travelled through the Supreme Court, where it was passed upon by a divided bench, into the Court of Appeals; without, in either of these courts, the counsel or any of the judges referring to one of the prior American direct adjudications, or to any of the numer- ous illustrative decisions, respecting the husband’s rights to the wife’s choses in action, and to curtesy. “ The question,” said the judge who pronounced the opinion in the latter tri- bunal, “is entirely new.” In the Supreme Court, the majority of the bench sustained what we have seen to be the general doctrine ; while, in the Court of Appeals, a contrary judgment was rendered, the woman being considered entitled to her dower? It had been held however in Ohio, that a divorce decreed on the prayer of the husband ina foreign State, while the wife was an inhabitant of Ohio, did not take away her right of dower in her own State.? § 662 a. That the wife cannot have dower unless she is wife when the man who was her husband dies, appears, ‘ moreover, from the consideration, that, during the coverture, the law recognizes no interest vested in her, under the name of dower or otherwise, in her husband’s real estate. She has 1 Ante, § 660; post, § 666, 668. 2 Wait v. Wait, 4 Barb. 192, 4 Comst. 95. In the New York case of Charruaud v. Charruaud, 1 N. Y. Leg. Obs. 134; not referred to in Wait v. Wait, it was laid down, — and on this the case proceeded, — that the wife cannot have dower unless the marriage were “subsisting at the death of the husband.” See also, as recognizing the doctrine of Wait v. Wait, Forrest v. Forrest, 6 Duer, 102, 153. 3 Mansfield v. McIntyre, 10 Ohio, 27. [647] § 664 THE CONSEQUENCES OF DIVORCE. [Book VI. only the possibility of an interest, on surviving him; but there can be no survivorship without death, and the death of a man not her husband cannot make her a survivor to give dower. § 663. But in many or most of the United States it is pro- vided by statute, that, when the wife is the innocent party, she shall be entitled, immediately on the divorce, to dower in the lands of the husband, in like manner as if he were dead. In such cases, the dower is not to be set off to her in the divorce suit, but she is to recover it by the same process she would if he had died!’ Her right extends as well to lands aliened during the coverture, as to those whereof he was seized when the dissolution of the marriage took place? This provision is contained in the statutes of Indiana; and there, a decree of divorce having been rendered with the following remarkable and novel clause in it: “ The court being satis- fied by the evidence, that the complainant and defendant are both guilty of malconduct towards each other, it is therefore ordered, adjudged, and decreed, that . . . this divorce is not granted upon the misconduct of the said defendant alone, but upon the misconduct of both the parties,” — the wife was held not entitled to dower under the statute.® § 664. Yet awife cannot have dower in lands her husband had aliened before the enactment of the statute creating this peculiar kind of dower, though the statute were in force at the time of the divorce. It will not be construed as intended to apply to such lands; or,if so intended, it will be adjudged unconstitutional as divesting vested rights. The purchaser of the land bought it with such an incumbrance of dower as the law existing at the time of the purchase, put upon it; and the legislature cannot, by a new act, enlarge the incum- brance.* Jt should be borne in mind, that, in respect to dower } Smith v. Smith, 13 Mass. 231. * Davol v. Howland, 14 Mass. 219; Harding v. Alden, 9 Greenl. 140. ® Cunningham v. Cunningham, 2 Cart. Ind. 233. * McCafferty v. McCafferty, 8 Blackf. 218; Given v. Marr, 27 Maine, [ 648 J CHAP. XXX.] FLOWING BY LAW. § 666 under these circumstances, the legislative enactment creates a right which, without it, does not exist. But the same rule does not apply where the right rests on the marriage itself; for there it must end, even as against third persons, whenever and however the marriage is dissolved. For example, the interest of the husband in the real estate of the wife, having no other foundation than the coverture, fails with it; and the estate must revert to her, though the divorce is by special legislative act, fora cause unknown to the general law. § 665. Where the words of the statute were, that, on the dissolution of the marriage by divorce for the adultery of the husband, the wife should have “ her dower, to be assigned to her in the lands of her husband in the same manner as if such husband was naturally dead,” —it was decided, that this provision applies to a case, where neither the husband nor the wife is an inhabitant of the State; where the divorce was decreed by the courts of another State, in which the wife was resident, but in which the husband had never resided; and to lands which were aliened before the divorce.2 In such a case, if the lands were aliened before the enactment of the statute, the doctrine of the last section would control, and produce a different result. § 666. Curtesy. The same common law doctrine which we have been considering, in its application to dower, applies also to the interest which the husband acquires by the mar- riage, in the real estate of the wife. Upon a divorce for, causes arising subsequently to its celebration, equally as upon a sentence of nullity, all the husband’s claim to the lands of 212; Comly v. Strader, Smith, Ind. 75, 1 Cart. Ind. 134. If the statute were in force at the time of the alienation, as well as before the divorce, it would be otherwise; post, § 665. See also Whitsell v. Mills, 6 Ind. 229. ' Townsend v. Griffin, 4 Harring. Del. 440; Starr v. Pease, 8 Conn. 541 ; Wright v. Wright, 2 Md. 429. And see post, § 668. * Harding v. Alden, 9 Green]. 140. But see the observations of the court in Mansfield v. McIntyre, 10 Ohio, 27. 55 [ 649] § 667 THE CONSEQUENCES OF DIVORCE. [BooK VI. his wife ceases; and she is entitled to recover immediate pos- session of them, not only as against him, but also as against his grantee, if he has aliened them. The principle is, that the marriage constitutes him tenant in her right of all her freehold property, during the coverture, but no longer. Upon the birth of living issue capable of taking her estate of in- heritance by heirship, he becomes tenant by the curtesy initiate of it; but the death of the wife is necessary to make such tenancy consummate; and there can be no death of the wife if the woman ceases to be a wife before her death. The di- vorce has the effect thus mentioned, not only upon the wife’s estates of inheritance, but also upon her freehold interests ; such, for instance, as lands which she holds in dower by rea- son of a former marriage.2 Yet she cannot, after the divorce, maintain the particular form of action, called trespass, against the husband’s grantee ;? and, the termination of the coverture being the act of the law, the lessee of the husband is entitled to the emblements.* . § 667. It has been decided in Delaware, that a legislative divorce from the bond of matrimony, in terms restoring to the wife all her lands, has the effect to divest judgment liens cre- ated by the husband, and annul sales made under these liens. The court put the decision as much on the necessary opera- tion of the divorce itself, as on the phraseology of the act granting it. Said the judge: “The right of curtesy is a right appertaining to a husband, or one who was such at the wife’s death. This right does not become perfect until issue born 1 Wheeler v. Hotchkiss, 10 Conn. 225; Starr v. Pease, 8 Conn. 541; Bar- ber v. Root, 10 Mass. 260; Renwick v. Renwick, 10 Paige, 420, 424; Doe v. Brown, 5 Blackf. 309; Mattocks ». Stearns, 9 Vt. 326; Burt v. Hurlburt, 16 Vt. 292; Sackett v. Giles, 3 Barb. Ch. 204; Oldham v. Henderson, 5 Dana, 254; Townsend v. Griffin, 4 Harring. Del. 440; Boykin v. Rain, 28 Ala. 332; ante, § 664. 7 Gould v. Webster, 1 Tyler, 409. * Wheeler v. Hotchkiss, 10 Conn. 225. * Gould v. Webster, 1 Tyler, 409; Oldham v. Henderson, 5 Dana, 254; ante, § 649. [ 650 ] CHAP. XXX.] FLOWING BY LAW. § 668 and the death of the wife, and can never be perfected if the relation of hushand and wife be destroyed before the wife’s death. With the destruction of that relation, all its rights and obligations cease, of course; and the right of the husband’s creditors cannot exceed his right. The lien of the judgment in this case, upon the husband’s interest as tenant by the cur- tesy initiate in the wife’s lands, was a right of the creditor vested no further than as subject to all the legal incidents of the relation of husband and wife; uncertain in its character, and liable to be divested in any way in which the relation can be destroyed before the husband’s tenancy by the curtesy be- came absolute.”1 Substantially the same view has been takén of the matter in Connecticut;? and it seems to result equally well from principle® as from authority. § 668. Choses in action. The same general doctrine now being considered applies to the wife’s choses in action. While the marital relation exists, the husband may reduce them to possession, but he cannot do so after it has ended. His right to use his wife’s name, in a suit to recover them, rests solely upon the coverture, and ends with it as well when it is termi- nated by divorce as by death And if, after a divorce has extinguished this right, the husband receives money on any thing due to her in action, she may recover it of him, in a suit for money had and received The doctrine is, that the di- vorce places her in the same situation in respect to this species of property, as if he were dead: and hence, when a legacy for the wife came into the hands of the husband as executor 1 Townsend v. Griffin, 4 Harring. Del. 440, 442. 2 Starr v. Pease, 8 Conn. 541. > See ante, § 660, 661, 662a, 664; post, § 668, 798. * Renwick v. Renwick, 10 Paige, 420, 424; Browning v. Headley, 2 Rob. Va. 340; Legg v. Legg, 8 Mass. 99; Fink v. Hake, 6 Watts, 181; Lodge v. Hamilton, 2S. & R. 491; Wintercast v. Smith, 4 Rawle, 177. See also Clarke v. McCreary, 12 Sm. & M. 347; Price v. Sessions, 3 How. U. S. 624; Holmes v. Holmes, 4 Barb. 295; White v. White, 5 Barb. 474; Wood v. Simmons, 20 Misso. 363. 5 Legg v. Legg, 8 Mass. 99. DD) [651 ] § 669 THE CONSEQUENCES OF DIVORCE. ~ [BOOK VI. and trustee; and she afterward, on her petition, obtained a divorce from the bond of matrimony ; the court held, that he had not, in contemplation of law, reduced it into possession, and that so she was entitled to it as against him. § 669. How far, on the decease of the husband, his assignee of the wife’s choses in action can claim them as against her, appears not to be entirely settled upon authority” But her rights, whatever they may be, are the same upon a divorce as upon the husband’sdeath.? Assuming that the assignee for a valuable consideration is protected as against her,‘ still the mere creditor is not; and such creditor cannot set off against her sole suit a debt which the husband had contracted6 Thus those who administer on the estate of a divorced wife’s de- ceased father, cannot diminish her claim for her share in the estate, by showing a loan made by the father to the husband during the cohabitation. But they can set up, in diminution of it, an advance so made by the father to him, on her ac- count. And in respect to the assignee of the husband, even supposing him to be protected in his assignment, still his right can never exceed the assignor’s, which is, not absolutely to recover the chose in action, but. to recover it subject to 1 Kintzinger’s Estate, 2 Ashm. 455. 2 2 Kent Com. 136 et seq. See post, § 685. 2 Ante, § 668. * Where a husband assigned his wife’s chose in action, without consider- ation; and the assignee assigned it, for a good consideration, to another who had no knowledge of the facts concerning the first assignment; and there- upon the wife obtained a divorce a vinculo, and this second assignee re- ceived afterward the money in payment of this chose in action; it was held she could not recover the money back. McConnell v. Wenrich, 4 Harris, Pa. 365. But other authorities do not place the assignee in any better condition than the husband. Such was the doctrine established in a late Missouri case, very fully considered. Wood v. Simmons, 20 Misso. 363. See post, § 685. 5 Fink v. Hake, 6 Watts, 131. And see Lodge v. Hamilton, 2 8. & R. 491. 6 Hake v. Fink, 9 Watts, 336. [ 652 ] CHAP. XXX.] FLOWING BY LAW. § 669 a her claim for an equitable provision out of it. In deter- mining the amount of such provision, the ill-conduct of the husband, on which the divorce was founded, may be taken into the account; and, in a case wherein, besides such ill- conduct, it appeared, that, before the assignment of the par- ticular chose in action in controversy, he had received and squandered much of her fortune, the court allowed her the whole.} § 669 a. Lands conveyed to Husband and Wife. It is fa- miliar to the legal profession, that, if during coverture married parties receive a deed of land running to the two jointly, a peculiar estate is created, in consequence of which the sur- vivor will take the whole, though the other had aliened of it whatever he could alien. There is a late Tennessee case wherein it appeared, that, after husband and wife had become so seized of real estate, it was levied upon under exeeution and sold, for the husband’s debts; and then the wife obtained a divorce a vinculo from him, for his fault ; and the court held, that the purchaser was entitled to retain the land until the death of the husband, and forever, unless, after the husband’s death, she should be living, when it would become hers abso- lutely. The decision proceeded upon common law principles, but the court supposed the exact question had never before - been adjudicated” If the author’s views of this point be deemed worthy of examination, they are here given, as fol- lows: The purchaser under the execution could stand in no better situation toward the wife, in respect of this land, than the husband stood; because the well-established doctrine, that, were the husband to sell such an estate, and then die, it would immediately become absolutely the wife’s, shows this estate to be one in which no third person can stand superior to the husband. But could the husband thus hold the estate, ? Browning v. Headley, 2 Rob. Va. 340. See Page v. Estes, 19 Pick. 269; post, § 683. 2 Ames v. Norman, 4 Sneed, 683. 55° [ 653 J § 670 THE CONSEQUENCES OF DIVORCE. [Book VI. after the divorce, if it were not sold, to the exclusion of the wife? If he could, then he would have in it a superior right to hers; but the setiled law of such an estate is, that here husband and wife are equal. She, on the other hand also, could not hold it exclusively as against him. Moreover, it could not revert to the grantor; because all the interest of the grantor had gone out of himself, and the operation of the di- vorce did not, like a sentence annulling a voidable marriage, extend back beyond the time it was pronounced ; it did not send its influence so far back as to affect the grantor’s deed. The result is, that two persons, a man and a woman, once married, but not married now, have together the entire fee of the estate, neither one having a claim superior to the other. While they were in law one person, their interest in the estate was indivisible ; but the law has come and severed their unity of person, so also has it severed, in the same way, their unity of estate, making them tenants in common. § 670. Marriage Settlements, §c. From the proposition, that the divorce we are considering divests each party of those executory property rights which have no basis but the cover- ture, such as curtesy, dower, and the husband’s claim to the wife’s choses in action, while it has no operation upon vested interests ;1 it follows, that property settled upon the husband or wife, or held by third persons for the benefit of either, re- mains usually after the divorce the same as before? And it is immaterial in respect of this question, as it is in respect of the questions already discussed, for what cause the marriage was dissolved, or which party was the guilty one. Thus, where, pursuant to an antenuptial agreement, husband and wife had conveyed her real estate to a trustee, to be held for her benefit during her life, with a life interest in the husband if he should survive her, and then to the heirs of the wife on the decease of both, making him thus substantially tenant by 1 Ante, § 660-669. * Buffaloe v. Whitedeer, 3 Harris, Pa. 182; Dalton v. Bernardston, 9 Mass. 201; West Cambridge v. Lexington, 1 Pick. 506. [ 654] CHAP. XXX.] FLOWING BY LAW. § 670 the curtesy, —it was decided, that he lost no rights under this settlement by a divorce for his fault from the bond of matri- mony; and that so he would still be entitled, surviving her, to the use of this property during his life In like manner, where a husband and wife entered into an agreement, through a trustee, intended to secure her a separate maintenance; the husband covenanting with the trustee, who undertook to be responsible for any debts of her contracting, that he would pay him for her use a certain sum, in regular instalments, “as alimony for and during the term of her natural life;” it was held, that a subsequent divorce —the record does not show for whose fault decreed — followed by a marriage of the wife, did not discharge the former husband from his liability to maintain her under his covenants? This doctrine was in a New York case questioned by Assistant V. C. Hoffman, who laid down the proposition, “that a decree for a divorce a vin- culo matrimonii, for the crime of the wife, annuls every pro- . vision made for a wife in marriage articles, or a marriage set- tlement in the nature of jointure, or otherwise, as well as any provision in articles executed upon a separation.” But in the case before him he sustained the claim of the woman ; it ap- pearing, that; during the coverture, the husband, knowing she was guilty of adultery, had entered into articles of separation, and covenanted to pay her an annuity; the payment of which annuity he had actually continued for three years after the divorce, and had then made a new agreement directly with her, secured by mortgage of his real estate, — to foreclose 1 Babcock v. Smith, 22 Pick. 61. * Blaker v. Cooper, 7 S. & R. 500. s.p. where the wife was the party delinquent, Miller v. Miller, 1 Sandf. Ch. 103. And see Heaviside v. Lard- ner, 3 Law Reporter, 201, 218, Aug. 1840, before Baron Gurney; Jee v. Thurlow, 4 D. & R. 11; McGowan y. Caldwell, 1 Cranch C. C. 481, where a divorce a vinculo, in which it was declared in the decree, that articles pre- viously entered into for alimony should remain in full force, was held to be no bar to an action on a bond given to secure the performance of those articles. [ 655 ] § 672 THE CONSEQUENCES OF DIVORCE, [Book VI. which mortgage she, after contracting a second marriage, brought her bill § 671. Where a testator directed an annuity to be paid to his nephew Thomas Bullock and Rebecca his wife, and their children ; and, after he had died, the marriage between Thomas and Rebecca was dissolved, but the trustees, Thomas being alive, refused to pay over any portion of the annuity to her; it was held, on demurrer to her bill brought to enforce the payment of such portion as the court should order, that she was entitled to the relief prayed. She being personally named in the bequest, the word “wife” must be understood as descriptive of the person, not of the character in which she was to take. It does not appear what proportion of the an- nuity the court finally awarded her.? § 672. But it would seem, — though we have little light on this point, — that, when a court of equity is called upon to . exercise a discretionary power, as to decree the specific per- formance of a contract,? it will, if justice requires, refuse, after the marriage is dissolved, to give effect to a mere agreement for a settlement. Thus, where, before the nuptials, there had been a contract between the parties and trustees, in which the intended husband undertook, that, after the nuptials, he would convey to the trustees certain property, to be held in trust to pay the dividends and profits to himself during his natural life ; and, in case of his death, “ leaving the said Mary,” the intended wife, then to pay the same to her, with cer- tain limitations over ; and, before he had executed the convey- ance, there was a divorce on his prayer for her fault, and, after * Charruaud v. Charruaud, 1 N. Y. Leg. Obs. 134. See also Hastings v. Orde, 11 Sim. 205, 2 Bullock v. Zilley, Saxton, 489. * And see in regard to this distinction, Charruaud v. Charruaud, 1 N. Y. Leg. Obs. 134. And see post, § 691. [ 656 ] CHAP. XXx.] FLOWING BY LAW. § 672 a this, he died, —it was held, that a suit in equity for her bene- fit could not be maintained, to enforce the specific perform- ance of the agreement. “ The marrjage,” said the court, “is dissolved; and all rights and obligations dependent on the existence of the marriage relation are extinguished. The par- ties are no longer husband and wife, but are permitted to marry at pleasure. The husband is released from all obliga- tion to maintain the wife, and his right to her separate property is at an end. The rights of the wife, to his estate, and to receive a support from it, further than they are saved by the statute or allowed by the court in the way of alimony, are determined. It follows, that this suit cannot be main- tained. The sole object of the agreement, so far as the wife was concerned, was to provide her a support as the widow of Somerville [the husband]. Before any estate vested in the trustees, the marriage was dissolved, for her misconduct, and she ceased to be his wife. He was no longer legally or morally bound to support her, or to carry into effect any pro- vision previously intended for that purpose. His duty to support her was extinguished by the dissolution of the mar- ‘riage, and with it fell her right to demand the execution of the trust. It is only in the capacity of wife, or widow, that she can compel the performance of the agreement. This must be the basis of her right to relief.. She stands in neither relation. Ceasing to be the wife of Somerville when living, she could not become his widow by surviving him. If the estate had been conveyed to the trustee in pursuance of the agreement, it is possible that her right to receive the income would not be lost by the divorce ; but, upon this question, we express no opinion.” } § 672 a. There is some difficulty in laying down, even when we make the attempt unfettered by precedent, precise rules concerning the operation of settlements, agreements for set- ? Clarke v. Lott, 11 Ill. 105. And see Cartwright v. Cartwright, 19 Eng. L. & Eq. 46. [ 657] § 673 THE CONSEQUENCES OF DIVORCE. [Book VI. tlement, agreements for separate maintenance, and the like, after a divorce has dissolved the marriage. But suppose there is a mere executory agreement to pay money, to transfer property, and so on, while what is so agreed remains undone; and suppose the consideration for the agreement to be the marriage, or the obligations which grow out of the marriage, — here, if the marriage is dissolved, the consideration, which is the life and the soul of the agreement, is taken out of it, and nothing remains therefore to be enforced. § 672 b. Suppose again the application is made to a court of equity to enforce the specific performance of a contract of the kind under consideration, and nothing appears in the case, such as is mentioned in the last section, showing the contract to have become void in law, still the court.of equity, acting on the familiar rule that he who would have equity must do equity, might either refuse absolutely to decree the performance, or refuse unless the plaintiff would execute what was right in the premises. On the other hand, there may be agreements of the general nature now under consideration, the enforcement of which, after a divorce, would be legal, : equitable, and just. § 673. Capacity to be Witnesses in each other’s Suits. Af- ter the marriage is dissolved by divorce, the wife has not the incapacity of interest preventing her from being a witness for or against her late husband, in his suits. Still whatever occurred during the coverture remains under the protection of the rule of public policy, which, to promote freedom and har- mony in matrimonial intercourse, holds as confidential all facts affecting either party, the knowledge whereof came from any source to the other during the subsistence of this re- lation! Therefore when the relation is terminated by di- vorce, the woman is on this ground disqualified to testify 1 1 Greenl. Evy. § 334, 835, 338. [ 658 J CHAP. XXX.] FLOWING BY LAW. § 673 against her former husband, concerning any matter occurring while it continued But the privilege of this protection may be waived by both parties consenting to waive it, after a di- yorce, though it appears they will not be permitted to waive it before;? and so, if the divorced wife is willing, she may testify in favor of her late husband to whatever happened during the coverture. Thus, in an action of criminal conver- sation, brought by the husband against the adulterer, the di- vorced wife is a competent witness to prove the adultery? And this principle has been carried to the extent of permit- ting the widow, the marriage being dissolved by death, to testify to disclosures of the husband, which “he could not have wished to conceal, but must have desired to make known, through her, if he found no other means of doing so.”4 In like manner, during the coverture, where a statute 1 Barnes v. Camack, 1 Barb. 392; The State v. J. N.B., 1 Tyler, 36, overruled in The State v. Phelps, 2 Tyler, 374; The State v. Jolly, 3 Dev. & Bat. 110; Monroe v. Twistleton, Peake Ev. App. ed. of 1822, p.39, Peake Ad. Cas. 219. 2 Barker v. Dixie, Cas. temp. Hardw. 264; 2 Daniell Ch. Pract. Perkins’s ed. 988; 1 Greenl. Ev. § 340. Yet see Merviam v. Hartford and New Ha- ven Railroad, 20 Conn. 354. ® Ratcliff v. Wales, 1 Hill, N. Y. 63; Dickerman v. Graves, 6 Cush. 308. And see Stanton v. Willson, 3 Day, 37. _ * The State v. Jolly, 3 Dev. & Bat. 110; Hester v. Hester, 4 Dev. 228. Professor Greenleaf, 1 Greenl. Ev. § 338, after saying, the rule concerning confidential communications has an application to husband and wife like what it has to client and attorney, adds: “ Accordingly the wife, after the death of the husband, has been held competent to prove facts coming to her knowledge from other sources, and not by means of her situation as wife, not- withstanding they related to the transactions of her husband.” And he cites Coffin v. Jones, 13 Pick. 445; Williams v. Baldwin, 7 Vt.506; Welles v. Tucker, 3 Binn. 366. These arrthonition certainly give somé countenance to this distinction, but no one of them appears very clearly to establish it; and it is believed, that the view taken in the text best accords both with the reason of the thing and the decided cases. Yet perhaps the true view may be to consider the reasoning of the text as applicable to cases where the husband, after a divorce, is a party to the suit, or his legal representatives, after his death, are parties; and the reasoning of Professor Greenleaf as ap- plicable to cases, where, if the husband were alive, he would be a competent [ 659 ] § 676 THE CONSEQUENCES OF DIVORCE. [Book VI. takes away the disqualification of interest, the wife, it has been held, may be:a witness for her husband, § 674. Other Consequences. The dissolution of a valid marriage does not impair the right of the husband to main- tain, against a third person, the action of criminal conversa- tion for debauching the wife while the coverture existed.? § 675. But such dissolution takes away the husband’s right to administer on his late wife’s estate after her decease. Yet conduct which would have entitled the wife to a divorce, if she had applied for it, does not have the effect, if in fact no divorce was obtained.? III. The Divorce from Bed and Board. § 676. We have already had occasion incidentally to con- sider various points concerning the effect of a divorce from bed and board.t The cardinal doctrine is, that the marriage remains in full force, but the parties are legally authorized to live separate. Yet the precise effect of this divorce, in many minor particulars, is subject to doubt and conflict in the American authorities; though most of these questions are settled in England. Perhaps the true view is to consider the result as modified by the phraseology of different statutes, and sometimes by the language of the specific decree. witness, but where, at the same time, neither the husband nor the wife could be called upon to disclose matters resting in the confidence of the matri- monial relation. And see McGuire v. Malony, 1 B. Monr. 224; Aveson v. Kinnaird, 6 East, 188. Yet see Cornell v. Vanartsdalen, 4 Barr, 364, and other cases cited by Greenl. in later editions. * Merriam v. Hartford and New Haven Railroad, supra. And see May- rant v. Guignard, 3 Strob. Eq.-112; Bisbing ». Graham, 2 Harris, Pa. 14. * Ealer v. Flomerfelt, 1 Wheat. Dig. ed. of 1843, 828, 1 Ashm. 53, note ; Ratcliff v. Wales, 1 Hill, N. Y. 63; Dickerman v. Graves, 6 Cush. 308. ® Altemus’s case, 1 Ashm. 49. And see Lodge v. Hamilton, 2 S.& R. 491. 4 Ante, § 298, 295, 595-599, G01. [ 660 ] CHAP. XXX. ] FLOWING BY LAW. § 678 § 677. Obviously a divorce from bed and board does not | entitle either of the parties to marry again. And there is no difference in this respect, whether it was granted by a domestic or a foreign tribunal We have seen, that there was a time in the history of the English law, when persons separated a mensdé el thoro were not punishable as polyga- mists, if they contracted a second marriage; yet the second marriage was void, the same as now; because the first was still subsisting : § 678. In England the 107th canon of 1603 provides, that, “jn all sentences pronounced only for divorce and separation a thoro et mensé, there shall be a caution and restraint inserted in the act of the said sentence, that the parties so separated shall live chastely and continently ; neither shall they, during each other’s life, contract matrimony with’ other persons. And for the better observation of this last clause, the said sentence of divorce shall not be pronounced until the party or parties requiring the same shall have given good and suffi- cient caution and security into the court, that they will not any way break or transgress the said restraint or prohibition.” 4 In obedience to this canon, the English courts require the promoter, on the cause being assigned for hearing, if the hus- band, to give a bond in one hundred pounds with one surety payable to the judge personally, his executors, and adminis- trators, conditioned that he will not at any time thereafter, during the life of the defendant, intermarry with any other individual. If the wife is the party promoting, a man must execute the bond in her stead.5 This must be done before the sentence of divorce is signed; otherwise, by the 108th canon, the sentence itself is void. But it is held, that, if the bond is omitted through mistake, the court has power to correct the 1 Young v. Naylor, 1 Hill Eq. 383. . 2 Ante, § 203, 205, 292. 3 In respect to these canons, see ante, § 4, 219, 806. * Poynter Mar. & Div. 339. 5 Coote Ec. Pract. 343, 344. 56 . [661 ] § 680 THE CONSEQUENCES OF DIVORCE. [BooK VI. error, by perrfiitting it to be filed afterward, and then sign- ing the sentence anew! This is a peculiarity of the Eng- lish canon law, probably not binding upon any of the Amer- ican tribunals; there being no published case in which the practice has been followed. § 679. It was observed by the Louisiana court, that a divorce from bed and board as completely separates the parties as a divorce from the bond of matrimony; except that, after the former, neither of them can legally marry again If the Louisiana law is as thus indicated, it differs greatly from the law of England and of the other American States. A more accurate statement of the general law would be, that a divorce from bed and board works no change in the relation of the parties, either to each other or to third persons, except in authorizing them to live apart until they mutually come together. In coming together, no new marriage is required; neither, it seems, under the general law, are any new proceedings in court necessary ; but the reconciliation, of its own force, annuls the sentence of separation. How this particular matter stands under various statutory enactments, and under decrees differing in form from the English, appears not clear upon the author- ities.* § 680. This divorce does not, at common law, and without statutory aid, change the relation of the parties as to prop- * Dysart v. Dysart, 1 Robertson, 543. * Savoie v. Ignogoso, 7 La. 281, 285. But the divorce does not dissolve the marriage. Gee v. Thompson, 11 La. Ann. 657. ' “The divorce is only a legal separation, terminable at the will of the parties; the marriage continuing in regard to every thing not necessarily withdrawn from its operation by the divorce.” Dean v. Richmond, 5 Pick. 461, 468; ante, § 295. * Barrere v. Barrere, 4 Johns. Ch. 187; Thompson v. Thompson, 2 Dall. 128; McKarracher v. McKarracher, 8 Yeates, 56; Stephens v. Totty, Cro. Eliz. 908. [ 662 ] CHAP. XXX.] FLOWING BY LAW. § 681 erty! Thus it neither takes away the right of the wife to dower, nor entitles her to recover it during the life of the hus- band2 The English statute of Westm.:2, c. 34, which is understood to be common law in the United States, while in some of the States it has been expressly reénacted,® pro- vides, that, if a wife willingly leaves her husband and con- tinues with an adullerer, she shall be debarred of her action to demand dower, if she be convicted thereupon; except her husband willingly, and without coercion of the church, recon- cile her, and suffer her to dwell with him; in which case she shall -be restored to her action. The expositions of this stat- uté will be found elsewhere; but it is to be observed, that they proceed upon rules differing in several particulars from those which determine the right of the husband to a divorce for the wife’s adultery ; and so, if there were no other objec- tion, the sentence of separation could not of itself. bar her of dower, though she may be otherwise barred on account of the same acts of adultery for which she is divorced. This dis- tinction is important; and a failure to notice it has led to some apparent confusion in the books.5 § 681. For the reasons already mentioned, this divorce does not, at the common law, take from the husband his right to the possession of the wife’s real estate, either during her life or after her death, if he is otherwise entitled to it, as 1 Kriger v. Day, 2 Pick. 316; Clark v. Clark, 6 Watts & S. 85; Dean »v. Richmond, 5 Pick. 461. 2 Park on Dower, 20; Stowell’s case, Godb. 145; Powell v. Weeks, Noy, 108; Godol. Ab. 505; Tebbs on Adultery & Div. 213. And see Potier v. Barclay, 15 Ala. 439; Gee v. Thompson, 11 La. Ann. 657. 8 1 Greenl. Cruise, 156, 175, notes; 4 Kent Com. 53. In New York the plea of elopement in bar of dower is taken away by the force of the Revised Statutes. Ib. * 1 Greenl. Cruise, 175, 176; 2 Inst. 435,436; Co. Lit. 32a; Godol. Ab. 508; Govier v. Hancock, 6 T. R. 603. 5 See Co. Lit. 32, note, 194; Park on Dower, 20, note; Roll. Ab. 680, 681; Shute v. Shute, Prec. Ch. 111; 2 Bright Husb. & Wife, 362. [ 663 ] § 682 THE CONSEQUENCES OF DIVORCE. [Book VI. tenant by the curtesy.1 But some of the States have the statutory provision, that, upon the divorce, she may take im- mediate possession of her real property. Still such a statute does not operate to destroy the matrimonial relation; it only authorizes her to recover and enjoy her lands, even as against purchasers from the husband for a valuable con- sidevation, in like manner as if the coverture were termi- nated. She may enforce this right in an action against the tenant. § 682, In like manner the husband’s common law right to reduce into possession the wife’s choses in action remains, after this divorce, as before. And he may release a chose in action, as a legacy, due to her But he cannot release her judgment for costs against himself in the divorce suit; be- ‘cause, since the law gives her the authority to act adversely to him, in this suit, it carries with the authority all the neces- sary consequences.6 Neither, it appears, can he release her costs against a third person, where she has the right to sue sole in a matter which concerns her individually. Thus where a wife, divorced a mensé et thoro, had proceeded in the spiritual court against a woman for adultery with her hus- band, and there obtained a decree for costs against this woman; which costs he had released, but the spiritual court refused to acknowledge the release, and the adulteress applied to the common law court for prohibition ; Lord Chief Justice Holt stated the law, with its reasons, as follows: “If a feme covert sue sole in the ecclesiastical court for defamation, as she may if she cohabit with her husband, he may release the costs ; but, if they are divorced a mensé et thoro, there, in such case, or of incontinency, &c., he cannot release the costs; 1 Smoot v. Lecatt, 1 Stew. 590; Rochon v. Lecatt, 2 Stew. 429; Clark v. Clark, 6 Watts & S. 85. * Kriger v. Day, 2 Pick. 316. And see Page v. Estes, 19 Pick. 269. ® Ames v. Chew, 5 Met. 320; Dean v. Richmond, 5 Pick. 461. * Stephens v. Totty, 1 Cro. Eliz. 908. 5 Stevens v. Stevens, 1 Met. 279. [ 664] CHAP, XXX.] FLOWING BY ‘LAW. § 683 and the reason is, that, if they are divorced a mensé et thoro, the husband allows his wife alimony, and the costs of the suit are out of the alimony; and therefore he cannot discharge the one more than the other. ... Yet if the suit be there for a legacy devised to the wife, which is originally due to the baron and feme, and is not part of the alimony, he may re- lease the suit, and also the costs; because he may discharge the principal. My opinion is, there should be a prohibition in this case. But here you say alimony is sentenced to Hewson’s wife; prove that, and then it is in our discretion not to grant a prohibition.” ! In another case, where the hus- band had released the costs of his wife, and the spiritual court _ had declined to give effect to the release, prohibition was re- fused, Houghton, J., observing: “The matter in question is for slandering the wife, and this is personal to the wife, and the determination of this is left unto them there.” ? § 683. The husband’s right to the wife’s choses in action, after a divorce from bed and board, is recognized, in the ab- solute sense, only at law; in equity it is considerably restricted. In the first place, she has here her general equitable claim to a provision out of them. But in the next place, equity may, it sometimes does, interfere in her behalf by injunction. Thus in an early case the husband, after a divorce from bed and board, was restrained from selling a term belonging to his wife’ And where, after such a divorce on account of the husband's cruelty, a legacy fell due to the wife, the Supreme Court of New York enjoined him from receiving any part of it; intimating, however, that the reception of the whole by her might furnish ground for the reduction or discontinuance of her alimony. And Barculo, J., observed: “ The rule of the court of equity in such cases follows that of natural justice ; the husband, by his violation of the marriage contract, forfeits ? Chamberlaine v. Hewson, 5 Mod. 70. 2 Motteram v. Motteram, 3 Bulst. 264. And see Gibs. Cod. 445. * Anonymous, 9 Mod. 43, 44; 2 Bright Husb. & Wife, 363. 56" [ 665 ] § 684 THE CONSEQUENCES OF DIVORCE. [Book VI. all equitable right to the wife’s property. Even when the property has belonged to her before the separation, and has not been reduced into actual possession by the husband, courts of equity will restore it to the wife. Much more, in a cease like the present, where the property falls to the wife after the separation, should the equitable power of the court be interposed to prevent the husband from receiving it by virtue of that relation which he himself has disregarded and violated. It would be difficult to conceive a more plain and palpable outrage upon justice, than to permit this old lady to be deprived of her whole share of her father’s estate, by an exercise of his marital rights on the part of a husband whose cruelty has driven her from an honorable home, and occasioned a perma- nent suspension of the marriage contract. The authorities are full on this subject.” 4 § 684. In the case last mentioned, the legacy fell to the wife after the separation, and there were no intervening rights of third persons. But where, in England, a wife obtained, “subsequently to the bankruptcy of her husband, a divorce from bed and board on the ground of his adultery and cruelty; the court held, that this did not entitle her in equity to the whole of a fund bequeathed to her, which came into posses- sion after the bankruptcy, although no settlement was made upon her at her marriage, and the husband had then received 1,500/. stock in her right. The Vice-Chancellor said, “he was of opinion, that, if the separation and divorce from the husband could, in any case, give a special equity in the wife, it would not affect this case; because the whole proceeding was subsequent to the bankruptcy, and consequently after the right to the legacy had vested in the assignee ; but there must be a reference to a master to approve of a proper settlement upon the wife.” 2 * Holmes v. Holmes, 4 Barb. 295, referring to Vanduzer v. Vanduzer, 6 Paige, 366; Fry v. Fry, 7 Paige, 461 ; Renwick v. Renwick, 10 Paige, 420. * Green v. Otte, 1 Sim. & S. 250, 252. See ante, § 669, and Browning v. Headley, there cited; Davis v. Newton, 6 Met. 537. [ 666 ] CHAP, XXX.] FLOWING BY LAW. § 686 § 685. In some of the United States, the common law dec- trine concerning the wife’s choses in action, on a divorce from bed and board, has given place to statutory provision. It was so in Massachusetts, by Stat. 1828, c. 52, § 2, which has been superseded by a more general provision in the Revised Statutes! The earlier statute directed, that, upon such divorce decreed at the prayer of the wife, her choses in action, not reduced by the husband to possession, should remain her property; and it was held, that an assignment of them by the husband for a valuable consideration, before divorce granted, is not a reduction to possession. Though assigned, she can hold them as against the assignee, who can stand only in the place of the husband, with no other rights than his, which rights the divorce had terminated? § 686. Whether the wife, after a divorce from bed and board, may sue and be sued at law, is a question of some difficulty and doubt. In England, coverture is never an im- pediment to a suit in the ecclesiastical courts; married women being there plaintiffs and defendants, without even the intervention of a next friend. But the rule, it is well known, is otherwise in the courts of law; and in them, notwithstanding a divorce from bed and board, the English doctrine at the present day does not subject the woman to the liability of being sued. The converse of this is probably not decided ; still little room for doubt can exist, that the same tri- bunals would hold the wife, who had obtained a divorce from bed and board, incapable of maintaining an action. In Eng- land, however, the decree for this kind of divorce does not also give to the wife the custody of children; neither does it restore to her any portion of her former estates; neither does it give her again the title in her choses in action; while, in the United States generally, these and other like things are done 1B. S.c. 76, § 28. 2 Page v. Estes, 19 Pick. 269. And see ante, § 669 and note, where it appears that the authorities are not agreed. * Lewis v. Lee, 3 B. & C. 291; Elah v. Leigh, 5 T. R. 679. [ 667 ] § 637 | THE CONSEQUENCES OF DIVORCE. [BOOK VI. under statutes, which seem, therefore, to place her in a con- dition approximating more nearly to that of a feme sole than she sustains in the English law. And Parker, C. J., ob- served in a Massachusetts case: “ Where the law itself has separated them, and established separate interests and sepa- rate property, it acknowledges no such absurdity as to con- tinue the power of the husband over every thing but the per- son of the wife.”1 And this matter, in some of the States, as Louisiana,’ is regulated by statutory provisions which expressly qualify the wife to sue and be sued. So at présent in England, Stat. 20 & 21 Vict: c. 85, § 25, 26, has altered the common law doctrine; giving the wife, in such circumstances, somewhat the rights of a feme sole, with capacity to sue and be sued. § 687. There are circumstances wherein, of necessity, the wife must sue; as when she would enforce payment of her alimony.? But aside from this particular necessity, the Mas- sachusetts doctrine is plain, that the divorce from bed and board qualifies her generally both to sue and be sued. “ After such divorce,” observes Shaw, C. J., “the law of this Com- monwealth recognizes her right to acquire and hold property, to take her own earnings. to her own use, for the support and maintenance of herself and children. She is deprived of the protection, and exempted from the control, of her husband. She may, by the degree of the court granting the divorce, and pursuant to the provisions of the statute law of the Com- monwealth, be charged with the custody, and consequently with the support and maintenance, of the children of the marriage. The reason, therefore, why a wife cannot sue or be sued, without joining and being joined with her husband, does notexist. But the relation in which the divorce a mensd * Dean v. Richmond, 5 Pick. 461, 466. 2 Bonneau v. Poydras, 2 Rob. La. 1. ® Wheeler v. Wheeler, 2 Dane Ab. 310; Lefevre v. Murdock, Wright, 205; Howard v. Howard, 15 Mass. 196; Clark v. Clark, 6 Watts & S. 85; post, § 683. [ 668 ] CHAP. XXX.] FLOWING BY LAW. § 688 et thoro places the parties, opposes such a joinder. If it were necessary to join the husband as plaintiff, he might release her rights, by which she would be subjected to cos‘s; if he might be joined as defendant, he might be made subject to her debts; both of which consequences are repugnant to the new relation of divided and separate interests, in which the law, by such a decree, places them. ‘Whilst the law thus recognizes the right of a woman, so divorced, to acquire and' take the proceeds of her industry to her own use, it recognizes ‘her power to make contracts; and, if she could not sue or be sued, it would present the anomalous case, in which the law recognizes a right without affording a remedy for vindi- cating it, and subjects a party to a duty, without lending its aid to enforce it.”1 In the other States generally the ques- tion is not well settled; for, while there are cases appearing to favor the Massachusetts doctrine? the opposite scale is not without its weight of apparent authority# § 688. In South Carolina, the court having no power to grant divorces decreed alimony to a wife on her bill praying for alimony only, and ordered the husband to give security for its payment. He refused; an attachment issued against him. The sheriff, having taken him into custody, suffered him ta escape; and it was held, that the wife might main- tain, by her next friend, an action at law against the sheriff for this escape. Said the court, by Smith, J.: “It was urged in the argument, that this woman, being a feme covert, could not maintain the action by her next friend. If that argu- ment were to prevail, there would be a failure of justice, which our law abhors; as there would be no means of enfore- ing a decree of a wife against her husband for alimony. 1 Pierce v. Burnham, 4 Met. 803, 805; Dean v. Richmond, 5 Pick. 461. ® Lefevre v. Murdock, Wright, 205 ; Taylor v. Simpson, 5 J. J. Marshall, 689; post, § 688. And see Benadum v. Pratt, 1 Ohio State, 403. 3 Burr v. Burr, 10 Paige, 166 ; Clark v. Clark, 6 Watts & S. 85; Barber v. Barber, 1 Chand. 280. * Ante, § 551-559. [669] § 690 THE CONSEQUENCES OF DIVORCE. [BooK VI. The court of equity could order a refractory husband to be attached, and the sheriff would let him go if he thought proper; then, if the wife could not sue by her next friend, who could? The law provides no other course. And upon this occasion I would adopt the course of a very learned judge, —‘If there is no precedent, I will’ make one.’”?! * §689. The general law of husband and wife entitles the former, as of right, to administer on the effects of the latter, after her decease? This right is not taken away by the’ divorce a mensé et thoro; and the husband may claim it, though his guilt led to the divorce. But the wife has not the same absolute right of administration, on the decease of her husband ;* and it is a proper exercise of the discretion of the court to refuse her, in favor of his son, if a divorce for her adultery has been pronounced? § 690. The law presumes married persons, separated from bed and board by sentence of court, to live in the due observ- ance of the sentence; and, if children are born of the wife during the separation, they are primd facie illegitimate ; though it is otherwise where the parties are living apart by con- sent. 1 Prather v. Clarke, 1 Const. 453. ° Humphrey v. Bullen, 1 Atk. 458; Sands’s case, 3 Salk. 22; McCosker v. Golden, 1 Bradf. 64; Elliott v. Gurr, 2 Phillim. 16, 1 Eng. Ec. 166; Browning v. Reane, 2 Phillim. 69, 1 Eng. Ec. 190; Steadman v. Powell, 1 Add. Ee. 58, 74, 2 Eng. Ee. 26, 34; Wilkinson v. Gordon, 2 Add. Ec. 152, 2 Eng. Ec. 257; 1 Williams on Ex. 242; Toller on Ex. 83. 3 Clark v. Clark, 6 Watts & S.85. * Sands’s case, supra; Dew v. Clark, 1 Hag. Ec. 311; Conyers v. Kitson, 3 Hag. Ec. 556, 5 Eng. Ec. 202; In the goods of Williams, 3 Hag. Ee. 217, 5 Eng. Ec. 82; Spratt v. Harris, 4 Hag. Ec. 405; Stretch v. Pynn, 1 Lee, 30, 5 Eng. Ec. 296; Atkinson v. Barnard, 2 Phillim. 316, 1 Eng. Ee. 271; Webb v. Needham, 1 Add. Ee. 494, 2 Eng. Ec. 189. 5 In the goods of Davies, 2 Curt. Ec. 628, 7 Eng. Ec. 233. ® St. George v. St. Margaret, 1 Salk. 123; Van Aernam v. Van Aernam, 1 Barb. Ch. 375. [ 670 ] CHAP. XXX.] FLOWING BY LAW. § 691 §691. There is hardly need to say, what is sufficiently obvious, that this divorce does not deprive the wife of any estate or property rights she may hold independently of her husband, or adversely to him. And if there is a valid deed of separation, in which he covenants to pay a third person an annuity for her use, his covenants will bind him, as well after this divorce as before! It appears, however, that there are cases wherein, without reference to the question of a divorce, “the husband would be entitled,” in the language of Wilde, J., “to come into a court of equity to restrain the trustees of his wife from proceeding at law for her separate main- tenance, or where the court would refuse her relief on a bill to enforce a trust therefor. But to justify the court thus to interfere, the misconduct of the wife must be clearly proved ; such, as that she had been guilty of adultery or criminal conversation, or had left her husband without any cause whatever.” 2 1 Jee v. Thurlow, 2 B. & C. 547, 4 D. & R.11; Dr. Lushington, in Cood v. Cood, 1 Curt. Ec. 755, 763, 6 Eng. Ec. 452, 456. And see Brown v. Brown, 2 Md. Ch. 316. 2 Ayer v. Ayer, 16 Pick. 327, 332; Moore v. Moore, 1 Atk. 272; Lee v. Lee, 1 Dick. 321, 2 Dick. 806. See ante, § 672; Cartwright v. Cartwright, 19 Eng. L. & Eq. 46. [671] § 694 THE CONSEQUENCES OF DIVORCE. [Book VI. : CHAPTER XXXI. THE STABILITY AND EFFECT OF THE SENTENCE. Sxctr. 692, 693. Introduction. 694-699. As between the Parties. é 700-711. Collateral Effect. -§ 692. Our last chapter assumed, that the sentence of di- vorce was valid and irreversible, binding also on all the world.’ In the present chapter we are to inquire, whether such is, or when it is, the quality and effect of the divorce sentence. Some questions, however, which seem to belong to this chap- ter, under this explanation of its purpose, will be reserved: for our chapter next following. , '§ 693. There is a distinction between, I. The right of the court to reverse for error, to review, or otherwise to call in question, its own sentence, on a proceeding instituted directly for that purpose; and II. The right of the same court to call it in question in collateral proceedings, or of any other court, in proceedings either direct or collateral. J. As Between the Parties. .§ 694. In the first place, it appears to be the doctrine of the English ecclesiastical tribunals, in regard to their own adjudications, that a sentence against the validity of a mar- riage is never final; but is ever open to revision and reversal. This doctrine is expressed in terms sufficiently broad to em-" brace all suits for nullity, whether proceeding on the allegation T 1 Poynter Mar. & Div.157; Shelford Mar. & Div. 474; 2 Burn Ec. Law, 485; Oughton, tit. 306. And see Robins v. Crutchley, 2 Wils. 118, 122, 127; Bowzer ». Ricketts, 1 Hag. Con. 213, 214; Morris v. Webber, 2 Leon. 169; Meadows v. The Duchess of Kingston, Amb, 756; Barrs v. Jackson, 1 Y. & Col. C. C. 585, 598. [ 672 ]- CHAP. XXXI.] STABILITY AND EFFECT OF THE SENTENCE. § 694 that the marriage was originally void, or only voidable. In the Duchess of Kingston’s case, it was stated by Dr. Calvert, of counsel for the defendant, in words substantially concurred in on all sides, thus: “ There can be no determination against a marriage, but what is open to future litigation. We all know, that, in a question of marriage, any person that has an interest may intervene before sentence given; and any per- sons having an interest, though they have neglected to inter- vene in that cause, might appeal within the proper time; nay, T will go so far as to say, that, if any person having an interest should have so far neglected it as to omit availing himself of an intervention or appeal, yet he might still come before the court, show his interest, and be heard. A marriage cause goes further still; for I believe in most other cases a deter- mination would be for ever binding, at least to the parties; but in these questions I conceive it is not; for, if there was to be a question between a husband and wife in a cause of jac- titation, and, as in this cause, it was determined that there was no marriage; yet the party against whom that sentence was obtained, I apprehend, might appear afterwards, he might produce any new proof that he did not know of at the time, or, even if he had not produced what proof he had, he might be heard upon it. The reason of that indulgence I take to be this: by the canon law a marriage was held to be indis- soluble, and for that reason a sentence against it never could be final; sententia contra matrimonium nunquam transibit in rem judicatam. The canon law, it is well known, has been received in this country with respect to marriage, particularly as to that position of its being indissoluble. In most other questions, as of property, a person might be bound by time, bound by not making so good a case as he should have done; but, as a person cannot release himself from the obligations of marriage by any lapse of time, or any neglect in stating his case, the question is ever open.”! ‘We have already had 1 Duchess of Kingston’s case, 20 Howell St. Tr. 355, 420; compare with 406, 442, 443, 450, 451, 506, 507, 530. 57 [ 673 ] § 695 THE CONSEQUENCES OF DIVORCE. [Book vL occasion to consider one illustration of this doctrine, in re- spect to impotence; where it is held, that, if parties are di- vorced for impotence, and the alleged impotent person marries again, and has children, the spiritual court may annul the sen- tence of divorce, even after the second marriage; thus reviv- ing the first marriage, and rendering the second, which was originally good, a nullity.! § 695. While the principles stated in the foregoing section are clearly supported by the Roman canonical authorities ; and are assumed, by all the text-writers, and by some judges, as being law in the ecclesiastical tribunals; yet it by no means follows that they are so in the latter, because they are found in the former. Neither are they often, if at all, practi- cally acted upon at the present day; nor is it apparent that they have received other more direct, judicial confirmation. And from the English tribunals have fallen observations which might lead us to doubt, whether, upon a proper occa- sion, those principles would not be discarded in them, or greatly modified. Thus Sir John Nicholl, speaking of nullity of marriage by reason of impotence, said: “ By the canon law, the marriage is not absolutely dissolved ; the parties are separated; and, if the church is deceived, the former marriage jis to be renewed; and, if a second marriage is, contracted, it ‘becomes null and void. "What a state to place the parties in! ‘This is something in the text law which I cannot readily assent to belong to the law of this country.” And in a recent case,— where indeed the question was not directly involved, the effort being, in a suit concerning the adminis- tration of the effects of the deceased, to get rid of an unre- versed sentence of nullity, — occur some observations of Sir Herbert Jenner Fust, quite indicative of the opinion, that such a sentence, regularly pronounced, cannot, even on direct 1 Ante, § 54 and note; Morris ». Webber, 2 Leon. 169. * Ante, § 5-8. * Norton v. Seton, 8 Phillim. 147, 1 Eng. Ec. 384, 387; ante, § 54, note. [674] CHAP. XXXI.] STABILITY AND EFFECT OF THE SENTENCE. § 696 proceedings, be set aside, except for fraud or collusion. “ Ac- cording to your argument,” he observed to counsel, “every child, and every child’s child may bring a suit to have the sentence reversed ; they will equally be strangers; I do not see where it is to stop.” ! § 696. There being no power in the ecclesiastical courts to dissolve a marriage originally valid, this doctrine, that a sen- tence against a marriage is ever open to revision and reversal, assuming it to be law in those courts, might not apply to the divorce for offences committed during the coverture. Indeed we have seen,? that, where it prevails, it rests upon the indis- soluble nature of marriage. Whether therefore it can be extended to supervening causes of divorce, or even, whether it is applicable to suits of nullity in the American tribunals, where no such notion of indissolubility exists, may well be doubted. The precise question has not received judicial elucidation in this country ; but it may be of consequence to notice, that there is no reported American decision in which this doctrine is recognized, or even claimed to be law; and there are cases in which it may be considered, perhaps, to have been indirectly discarded. Some obvious reasons exist, why judgments apparently final, rendered in matrimonial causes, whether of nullity or divorce; should be even more stable, certainly not less, than the like adjudications in other matters. The matrimonial status of the parties draws with and after it so many collateral rights and interests of third persons, that uncertainty and fluctuation in it must be greatly detrimental to the public interests. Therefore in some of the States, there are legislative enactments which are intended to give peculiar inviolability to such judgments.* 1 Meddoweroft v. Huguenin, 3 Curt. Ec. 403, 7 Eng. Ec. 438. 2 Ante, § 694. 3 See post, § 697. . ‘ Hy “In Kentucky, the Court of Appeals has no power to reverse a heat granting a divorce. Maguire v. Maguire, 7 Dana, 181; Thornberry v. [ 675 ] §697 THE CONSEQUENCES GF DIVORCE. [BooK vI. v § 697. As a general proposition, the American tribunals, when unencumbered by specific statutory directions, have. been governed by substantially the same principles in divorce. causes, as in others, in respect to opening decrees, or granting rehearings, writs of error, or certiorari ; or otherwise, accord-. ing to the practice of the court, reéxamining the question; except that there has always been a manifest reluctance to’ disturb a final judgment of divorce, especially after a second marriage, involving the interests of third persons. And in: New York, a husband having obtained a decree dissolving his. marriage, on default of the wife, upon whom process was irregularly but personally served in New Jersey; and having, shortly afterward, matried another woman, who was ignorant of the irregularity, — the divorced wife was permitted to come in and contest the suit; but, for the protection of the other woman, the Chancellor ordered, that the original decree re- main in full force, until the result of the litigation should be reached. And he observed: “The defendant does not state: when she received notice that the divorce had been actually - obtained. The complainant swears, that he showed it to her under the seal of the court on the cisiecath of October, and. before the second marriage; and it appears, that she took no steps to set aside the proceedings for nearly a month after- - wards. This delay was probably not sufficient to make it the Thornberry, 4 Lit. 251; Boggess v. Boggess, 4 Dana, 807. And see Wat-: kinson v. Watkinson, 12 B. Monr. 210, where, the lower court having dis- missed the plaintiff’s bill, and divorced the defendant on her cross-bill, the Court of Appeals reversed the former decree and gave a divorce to the. plaintiff. 1 Olin v. Hungerford, 10 Ohio, 268; Piatt v. Piatt, 9 Ohio, 37; Laughery. v. Laughery, 15 Ohio, 404; Johnson v. Johnson, Walk. Mich. 309; Smith. v. Smith, 4 Paige, 432; Colvin v. Colvin, 2 Paige, 385; Dunn v. Dunn, 4 Paige, 425; Bourne v. Simpson, 9 B. Monr. 454; Jeans v. Jeans, 3 Harring. Del. 136; Boggess v. Boggess, 4 Dana, 307; Evans v.. Evans, 5 B. Monr. 278; Lucas v. Lucas, 3 Gray, 136; Sheefe-v. Sheefe, 9 Fost. N. H. 269; Smith r. Smith, 20 Misso. 166; ‘Wiadfiran v. Hoffman, 6 Casey, 417; Mansfield v. Mansfield, 26 Misso. 163; y aE v. TARE 6 Ohio State 64. [ered CHAP. XXXI.] STABILITY AND EFFECT OF THE SENTENCE. § 698. duty of the court to bar her of her rights, if she has any, by leaving the decree to stand as conclusive against her. But in the mean time the second marriage has rights.” The de- fence ‘alleged was, that the husband had forgiven the adultery for which he brought his suit. It has been made a‘query in New York, whether, after a decree dissolving the marriage! has been rendered, the defendant can come in by a cross-bill in the nature of a bill of review, and show, that, pending the suit, the complainant was guilty of adultery, the fact not hav- ing been discovered until after the final adjudication? If a party has used the privileges of a decree of divorce, he has thereby affirmed it, and he is too late to complain of any of its burdens? § 698. After a decree dissolving the marriage, on the ground: of the wife’s alleged adultery, had been regularly pronounced and enrolled, the husband: made oath that he had subsequent-: ly become convinced of her innocence; and both joined in’ the prayer, that the enrolment might be opened and vacated; and the decree reversed. This was granted, and the suit dis-' missed; but without prejudice to intervening rights of third’ persons. The parties further requested, that the bill and all’ the papers should be taken from the files and destroyed. The: court denied this request, because of intervening rights; but said, “to prevent any one who has no interest in the question from disturbing the peace of this family, the register is direct- ed to seal up the pleadings and proceedings, together with the master’s report, and not to suffer them to be copied or inspect-_ ed, except by the special permission of the court.” The Chancellor considered, that, assuming the husband to be mis«. taken in thinking his wife innocent, still the law favors condo- nation? : " . 1 Dunn v. Dunn, 4 Paige, 425. * Smith v. Smith, 4 Paige, 432. ® Bourne v. Simpson, 9 B. Monr. 454. And see Gaines v. Gaines, 9 B. Monr. 295 ; post, § 796. : * Colvin v. Colvin, 2 Paige, 385.. 57 [677] § 699 THE CONSEQUENCES OF DIVORCE. [BOOK VI. § 699. If a tribunal has been imposed upon, the fraud! being of such a nature as to make the judgment of divoree void,” it may vacate this judgment, when, upon a summary proceeding, it is made cognizant of the fraud. So the Penn-- sylvania court, in a recent case, decided upon the strength of the English authorities; and further, that the order vacating the decree of divorce was, after the time for an appeal had elapsed, conclusive; although a second marriage had been in good faith conteacted, and although the vacating order was passed without actual notice to the party in the divorce suit against whom it operated. The authority principally relied upon to sustain this decision was the case of Prudham ». Phillips.? “ The principle,” observed Gibson, C. J., “is a gen- eral one, and applicable alike to ecclesiastical sentences and ¢ommon law judgments. It has no relation to the doctrine of amendments, which make the record speak a language ‘it did not speak before; the vacation is a new and independent judgment, of which the recorded entry is its appropriate evidence... .. It may be an arbitrary act to expunge a sentence of divorcé with a stroke of the pen, bastardize after- ‘begotten children, involve an innocent third person in legal guilt, and destroy rights acquired in reliance on a judicial act, which was operative at the time; and under this first - impression I would have decided as did the judge at nisi prius. But the legitimate husband has his nights ; and, if any one must suffer from the invalid marriage, it is he he procured it. By the terms of the contract he took the lady for better, for worse; and, having assumed at least her moral responsi- bilities, he stands as to hardship in her place. He, therefore, has no right to complain.” The doctrine of this section has ‘doubtless its limits and qualifications; but it has been so little ' 1 Post, § 703, 706-709. * See Greene v. Greene, 2 Gray, 361, 4 Am. Law Register, 42, mae an article 4 Am. Law Register, 1. ‘ § Prudham v. Phillips, cited Amb. 763, 1 Harg. Law Tracts, 456, note. And see post, § 707. 4 Allen v. Maclellan, 2 Jones, Pa. 328. [678 ] CHAP, XNXI.] STABILITY AND EFFEOT OF THE seNTENCE. 9-700 ‘developed by adjudication, that we cannot safely attempt to ‘state what they are. : Il. Collateral Effect. — eae * § 7C0. Whatever be the authority of the court which pto- nounces a sentence of divorce or of nullity, to revise or re- _verse it, on a proceeding instituted for the purpose, ‘still, ‘while it remains a sentence, it is, if free from fraud and colli- ’ sion, binding upon that tribunal in all collateral proceedings ; and upon all other tribunals, in all proceedings direct and col- -dateral, whether between the same parties and their privies, or between strangers; not only in the country where the sen- tence was rendered, but, the jurisdiction being admitted, in all foreign countries. A sentence, to have this effect, must of course be a direct adjudication upon the specific fact of the " marriage, or its dissolution ; and a finding which might ‘be inferred argumentatively, sould be attended with no such ¢ co) - sequence.! Moreover in the case of a foreign divorce, it_is quite immaterial whether or not it be for a cause allowed, ed by 1 Roach v. Garvan, 1 Ves. sen. 15 ai 159; Hillyard.v. Grantham, cited 2 Ves. sen. 246; Meadows v. The Duchess of Kingston, Amb. 656; Prudham tr Phillips, cited Ib. 763, Harg. Law Tracts, 456; 2 Burn Ec. Law, oe Rex v. Roche, 1 Leach, 4th ed. 134; Medaowerott v. Huguenin, 3 Curt. 403, 7 Eng. Ec. 438; s. c. on appeal before the Privy Council, 4 ashe, 886; Bunting v. Lepingwel, 4 Co. 29, Sir F. Moore, 169; Blackham’s ease, 1 Salk. 290; Guest v. Shipley, 2 Hag. Con. 321, 4 Eng. Ec. 548, 549; Claws v. Bathurst, 2 Stra. 960; Dacosta v. Villa Real, 2 Stra. 961; Kenn's case, 7 Co. 42; Jones v. Bow, Carth. 225; Hatfield v. Hatfield, stated 20 Howell St. Tr. 395; Morris v. Webber, 2 Teaone 169, Sir F. Moore, 225; Dickson ~°, Diekson, 1 Yerg. 110,114; Dorsey v. Dorsey, 7 Watts, 349; Lege v. Legg, 8 Mass. 99; Clarke v. Lott, 11 Ill. 105; Hake v. Fink, 9 Watts, 336; 1 Brown’s Civil ae 96; Story Confl. Laws, § 594-597; 1 Greenl. Ev. 54d, 545; 2 Ib. § 461; Jenk. Cent. 44; Harg. Law Tracts, 449; Mansfield v. Mc- Intyre, 10° Ohio, 27; Cooper. vi Cooper, 7 Ohio, 238; Ryan v. Ryan, 2 Phillim. 332, 1 Eng. Ec. 274; Conway v. Beazley, 3 Hag. Ec. 639, 5-EEng. - Ee. 242; Harding v. Alden,i9 Greenl. 140; Patterson v. Gaines, 6 How. U. S. 550, 599; Barber v. Root, 10 Mass. 260. See query, Scrimshire v. Scrimshire, 2 Hag. Ec. 395; 4 Eng. Ec. 562, 569. . And see Sinclair v. Sin- [679 ] § 701 THE CONSEQUENCES OF DIVORCE. ‘ [Book VI. the domestic law.!_ So if parties are domiciled in an Indian country, where the husband abandons his wife; and by the Indian law the abandonment works of itself, without further — proceedings, a dissolution of the marriage ; it will be treated in the courts of a Christian State as a divorce. The doctrine was thus laid down in respect to a marriage contracted in the Indian nation, with an intermediate domicil in the Chris-. tian;? and we shall see, in the next chapter, that, according to the better opinion, the place of its celebration is wholly im- material. § 701. It is perceived, that the rule thus stated accords to the sentence an effect beyond what is given to ordinary judg- ments in personam; and places it rather upon the footing of judgments in rem. Substantially such, in fact, is the sen- tence; or, to speak more accurately, it is an adjudication — about a matter of matrimonial status, which of necessity binds the world, like the act of parties by which this status is originally assumed. Thus if two individuals enter into an~ ordinary contract in personam, none but themselves and their privies are bound by it; but, if into a valid marriage, whereby a change in their status is wrought, third persons who have not been consulted must yield to the consequences. If, for example, a stranger to the marriage has a suit pending against the woman, it abates; the property to which he was looking for his pay, is transferred to the husband, who may be a bankrupt; one having a judicial controversy with the hus-— band, and relying upon the testimony of the woman, loses the evidence; and so of a variety of other consequences. For the same reasons, the like results follow the sentence of divorce or nullity. This is the case in respect to whatever clair, 1 Hag. Con.. 294, 4 Eng. Ec. 412, 414; Goodin v. Smith, Milward, 236, 245. 1 Barber v. Root, 10 Mass. 260; Wall v. Williamson, 8 Ala. 48; Hull v. Hull, 2 Strob. Nq. 174, 177, 178. _ ? Wall v. Williamson, supra; Wall v. Williams, 11 Ala. 826. [ 680} CHAP. XXXI.] STABILITY AND EFFECT OF THE SENTENCE. § 703 ; rests upon the status itself; but perhaps there may be collat- - eral- rights and interests, which would depend on a different principle. Yet here the same general doctrines would seem to be applicable, whether the change of status were effected . by the concurrent act of the parties, as it is when they are married; or by a decree of the court, as it is when they are divorced. § 702. It has been, with some show of authority, contended, that the doctrine of the conclusiveness of sentences in suits.. of nullity applies only to the parties to the suit and their privies, including persons who might have intervened, whether they really did so or not; at the same time, it has been ad- mitted that such persons need not have had any notice of the proceedings, to be bound by them. As, therefore, the right: - to intervene in matrimonial causes extends, according to the. English rule, to all persons who have any possible interest in the result ;? the doctrine, even thus limited, would seem prac-., tically to cover in substance the whole ground. But it is held, that a child, en ventre sa mére at the time of pronounc- ing the sentence of nullity, is estopped by it;? and, on the whole, the sentence would appear, both upon principle. and _ authority, to be, when free from fraud, conclusive upon all persons.* § 703. The Duchess of Kingston’s case> is sometimes re- ferred to as deciding, that the king is not bound, in a crimi- nal proceeding, by a sentence in favor of the defendant in a matrimonial cause; and sometimes as deciding, that a sen-: tence in the peculiar suit of jactitation of marriage concludes ; Ey ? See further on this point in the next chapter. Also ante, § 37. ? Shelford Mar..& Div. 569; ante, § 314, 694. .*:Perry v. Meddowcroft, 10 Beav. 122. But not if procured by fraud. Harrison v. Southampton, 17 Eng. L. & Eq. 364, 21 Ene L. & Eq. 348. * For the cases see ante, § 700::' eae 5 Duchess of Kingston’s case, 20 Howell St. Tr. sie more briefly report- ed, 1 Leach 4th ed. 146,'1 East. PC. 468, [ 681 ] L § 704 THE CONSEQUENCES OF DIVORCE. [BooK VI. nothing! The truth is, that the light shed from this case is very dim and uncertain, quite out of proportion to the vast array of talent and learning, and the multitude of words,. which adorned and overwhelmed the proceedings. The facts in brief are, that the lady entered into a private marriage ; cohabited under it for a time secretly ; had issue, which died ; disagreed with her husband, whereupon they separated ; and, after many years, she brought against him a suit of jactita- tion of marriage, which he, colluding with her, defended by setting up a marriage at a different time and place and under different circumstances from those which attended the real one. The witnesses to prove the marriage that did take place were designedly kept back ; and he, failing of course to establish this feigned one, suffered, what both parties concur- rently sought, sentence to go against him. The lady then entered into a second matrimonial alliance. After the death of the second husband, she was indicted for polygamy; and the indictment, on her prayer, and on account of her rank, was tried in-parliament, She relied upon the fraudulent sen- tence in the jactitation suit; but it was held not to be a bar, and she was convicted. A sufficient reason for setting aside the sentence, according at least to modern determinations, is, that it was obtained through fraud and collusion, which vitiate all judgments; and it has been well questioned, whether the case should be received as authority for any thing beyond this point? § 704. In the discussion of this case, the distinguishing consideration, that the sentence in the jactitation suit involved, 1 2 Smith Lead. Cas. 446 ; Shelford Mar. & Div. 473, 583. * Wadd. Dig. 296, note; 2 Smith Lead. Cas. 446. Before the officers of the crown undertook the prosecution, they consulted Mr. Hargrave upon the law; and he gave them an elaborate opinion, in writing, adverse to the crown on all points except that of fraud, which was the only thing, he con- tended, that could avoid the conclusive effect of the ecclesiastical sentence. The opinion was afterward published by the learned author of it, in Harg. Law Tracts, p. 449. See also Barrs v. Jackson, 1 Y. & Col. C. C. 585, 590, 593; 1 Brqwne Civil Law, 96, note. [ 682 ] CHAP. XXXI.] STABILITY AND EFFECT OF THE SENTENCE. §705' as all judgments in matrimonial causes do, the question of status, therein differing from most other final determinations in the ecclesiastical courts, was by no one distinctly presented. A multitude of other points were elaborated, but on what ground of law the decision did finally rest does not appear. Tn the course of the proceedings, the Lords put to the judges two questions, both of which were answered favorably to the prosecution; namely, “1. Whether a sentence of the Spirit- ual Court against a marriage, in a suit for jactitation of mar- riage, is conclusive evidence, so as to stop the counsel for the crown from proving the said marriage in an indictment for polygamy? 2. Whether, admitting such sentence to be con- elusive upon such indictment, the counsel for the crown may be admitted to avoid the effect of such sentence, by proving the same to have been obtained by fraud and collusion?” 4 For their negative answer to the first of the above questions, the judges assigned a variety of reasons, in such a manner as to leave us in doubt whether any one of them, and what one, would have been deemed sufficient of itself. Among these reasons are the following: first, that the party prosecutor in the indictment, namely, the king, was not a party to the jac- titation suit; secondly, that the receiving of the sentence as conclusive “ would tend to give the spiritual courts, which are not permitted to exercise any judicial cognizance in matters of crime, an immediate influence in trials for offences, and to draw the decision from the course of common law, to which it solely and peculiarly belongs.” But thirdly, if the result be not as thus indicated in respect to a direct sentence, in a matrimonial cause involving the identical question, yet a sen- tence in a jactitation suit is not a direct determination upon the question of marriage. § 705. In respect to the last point taken by the judges, a jactitation suit is, indeed, of a peculiar nature. It seeks a - * Duchess of Kingston’s case, 20 Howell St. Tr. 355, 2 Smith Lead. Cas. 424, g [ 683 ] § 705 THE CONSEQUENCES OF DIVORCE. [BOOK VI. kind of ecclesiastical injunction upon the defendant, against a species of matrimonial defamation. The libel complains, that the defendant has falsely and maliciously boasted of be- ing married to the plaintiff, and prays for a decree of perpet- ual silence from such boasting. There are three defences, either, first, a denial of the boasting; or, secondly, a setting up of a fact of marriage; or, thirdly, that, though there was really no marriage, the pretence of there having been one was authorized by the complainant. It is not claimed, that a sen- tence in a cause of jactitation, when either the first or third of these defences has been taken, amounts to a judgment upon the fact of marriage, having the force of a decree of nullity. But it is said, with apparent reason, that, when the second defence is made, “the proceeding,” in the language of Lord Stowell, “assumes another shape, that of a suit of nullity, and of restitution of conjugal rights, on an inquiry into the fact and validity of such asserted marriage.”1 Yet where this second defence is made, the sentence against the marriage is in form materially different from that rendered upon an original suit of nullity. In the latter suit, the adjudication finds, that there was a pretended marriage between the par- ties, but that, for causes set forth, it was and is null and void, and that the plaintiff was and is free from all bond of marri- age with the defendant.2. But in a jactitation cause, the cor- responding determination is, not that there was a pretended marriage, which was a nullity, but that none was entered into, as far as yet appears’, Still there are cases in which the sen- tence in such a suit has been received as conclusive upon the question of marriage.* 1 Hawke v. Corri, 2 Hag. Con. 280, 287, 288; Bodkin v. Case, Milward, 355;, Coote Ec. Pract. 357-360; 1 Browne Civil Law, 96, note; ante, §'263. 2 Coote Ec. Pract. 402, 403; ante, § 317. * See the sentence which was relied upon in the Duchess of Kingston’s case, 20 Howell St. Tr. 390; Bodkin v. Case, Milward, 355, 361. * Clews v. Bathurst, 2 Stra. 960; Dacosta d. Villa Real, 2 Stra. 961. [ 684} OHAP. XXXI.] STABILITY AND EFFECT OF THE SENTENCE. § 706 § 706. But any adjudication, whether in a suit of jactita- tion, of nullity, or of divorce, in order to have the conclusive effect described, must have been obtained bond fide, and with- out fraud or collusion between the parties ; for fraud in these causes, as in all others, vitiates every judgment into which it enters! According to a very familiar principle of law, how- ever, one would not be permitted to set up a fraud to which he was himself privy, in obtaining the sentence. And a still broader doctrine- has been laid down, that only strangers to the sentence can make, on a collateral proceeding, this aver- ment of fraud; for, it is said, a party to it might have it re- versed, but a stranger could not.2 If however the proposi- tions to be stated in the next section be received as correct, i¢ would seem clearly to follow, that a party to the sentence can never, either in a direct or collateral proceeding, set up agains¢ i 1 Story Confl. Laws, § 597; Harg. Law Tracts, 479; Brownsword v. Edwards, 2 Ves. sen. 248, 246; Hake v. Fink, 9 Watts, 336; Conway v. Beazley, 3 Hag. Ec. 639, 5 ie Ec. 242, 244, 245; Roach v. Garvan, 1 Ves. sen. 157; Harg. Law Tracts, 485; 3. Burge Col. & For. Laws, 1060, | 1061; ante, § 700; Harding v. Alden, 9 Greenl. 140, 151; Jackson v. Tacksari 1 Tels, 424; 2 Kent Com. 109; Harrison v. Sontampton, 17 Eng. L. & Eq. 364, 21 Eng. L. & Eq. 343, as to which see ante, § 702, note. * Prudham v. Phillips, cited Amb. 763, 2 Burn Ec. Law, 495. In this case, according to Mr. Ford’s note, as published by Mr. Hargrave, the court, after laying down the doctrine that fraud may be set up in answer to an ecclesiastical sentence of nullity, which has been offered in evidence, pro-' ceeded: “ But who ever knew a defendant plead, that a judgment obtained against him was fraudulent? He must apply to the court; and, if both, parties collude in the cheat upon the court, it was never known that either of them could vacate the judgment. Here defendant was party to the sen- tence; and, whether she was imposed upon, or she joined in deceiving the court, this is not the time or.place for her to redress herself. She may, if she has occasion, appeal, or apply otherwise to the proper judge.” Harg. Law Tracts, 456, note; Habback on Succession, 269. ‘See Pease v. Naylor, . 5 T. R. 80; Meddowcroft v. Huguenin, 3 Curt. Ec. 403, 7 Eng. Ec. 438; 8. C. on Appeal, 4 E.F. Moore, 386; Greene v. Greene, 2 Gray, 361, 4 Am. Law Register, 1, 42; ante, § 699. 58 [ 685 ] § 707 THE CONSEQUENCES OF DIVORCE. [Boox VI. it the fraud in its procurement, and that this right exists only in privies and strangers. § 707. It has been held, that fraud and collusion, to avoid ‘a sentence in a matrimonial cause, must have been practised ‘by and between the parties to that suit. ‘Thus, if the father ‘were promoter in a proceeding to annul the marriage of a ‘mninor son, fraudulent conduct concerning it in the son, to which the father was not privy, would not be admissible to ‘impeach the sentence. And it appears to have been further held by the Privy Council, in Meddowcroft v. Huguenin, ‘that no fraud of one of the parties alone would be sufficient, ‘but that both must have participated in it,— that it must amount to collusion, whereby the parties jointly imposed upon the court. Lord Brougham observed: “ The fraudulent ‘suppression of evidence by one party would be insufficient. It is when the two parties combine together that it becomes collusion. In the words of Wedderburn, in the Duchess of Kingston’s case:! ‘A sentence obtained by fraud and collu- sion is no sentence. In order to make a sentence, there ‘must be a real interest, a real argument, a real prosecution, a real defence, a real decision. Of all these requisites, not one takes place in the case of a fraudulent and collusive suit. There is no judge; but a person invested with the ensigns of a judicial office is misemployed in listening to a fictitious case proposed to him. There is no party litigating, ‘there is no party defendant, no real interest brought into question ; and, to use the words of a very sensible civilian on ‘this point, fabula, non judicium, hoc est; in scend, non in Jere, res agitur’”? 1 20 Howell St. Tr. 478, 479. 2 Meddowcroft v. Huguenin, 4 E. F. Moore, 386; Perry v. Meddowcroft, 10 Beay. 122; ante, § 699, and Allen v. Maclellan, there referred to. The - order vacating the deates of divorce, mentioned in the last case, had been ‘entered on application of the defendant, on whose default the divorce was originally granted; but the point stated in the text did not arise in the case, and was not discussed. [ 686 } CHAP. XXXI.] STABILITY AND EFFECT OF THE SENTENCE. § 708 . §'708. It may sometimes be difficult to determine, whether the facts in a particular case amount to sufficient fraud to avoid the sentence ; or what fraud will have the effect. Upon this subject, no very distinct lines have been drawn by the courts. In Conway v. Beazley, where there had been a Scotch divorce, a vinculo, and a second marriage, the second wife brought her suit'of nullity on the ground that the Scotch tribunal had no rightful authority to dissolve the vinculum of the first marriage, which she contended was still in force; and Dr. Lushington, in the course of his opinion, observed: “ It has been said, that the divorce at Edinburgh was only pleaded because it was deemed improper to keep the court in igno- rance of that circumstance. If a fact of such magnitude had been suppressed, I am of opinion that any sentence pro- nounced by the court would have very little availed the par- ties, — that it would not have been finally binding, but would have been open to reéxamination,— that such suppression would, in short, have rendered the proceedings liable to im- peachment. An endeavor to obtain a sentence when any such material information was withheld, would be unfair towards the court, and prejudicial to the due administration of justice.”! And in a.New York case it was shown, that, while the husband and wife were living in Connecticut, she petitioned to the legislature of the latter State for a divorce from bed and board on the ground of his cruelty, he appeared and answered to her complaint, and, after due hearing, her prayer was allowed. Five years afterward he applied to a court in Vermont, where he was residing, for a divorce a vin- culo, on the allegation that she had deserted him, suppressing the fact of the proceeding in Connecticut. Service was made on her by publication, but she had no actual notice of his suit, and did not appear. Judgment was rendered in his favor, dissolving the marriage ; but the New York court held, that, as he had imposed upon the tribunal rendering it, by allega- tions which he knew to be false, and had concealed the real 1 Conway v. Beazley, 3 Hag. 639, 5 Eng. Ec. 242, 244, 245. [ 687 J § 709 4 THE CONSEQUENCES OF DIVORCE. [Book VI. facts, the judgment was void! It is not however sufficient to avoid a sentence, that the costs of the unsuccessful party had been agreed to be paid by the other; that some witnesses were not examined, and others not cross-examined ; and that obstacles were not interposed which might have been.? ~ §709. When parties resort to the courts of a foreign state or country, without a change of domicil, for the purpose of obtaining a divorce to which they would not be entitled by the law of their own country, the divorce, as we shall here- after see, will be treated at home as invalid. The true prin- ciple is undoubtedly, that the foreign tribunal had no proper jurisdiction over the subject-matter, being one of status, with which the courts of the parties’ domicil are alone competent to deal. Yet this case is sometimes treated as one of fraud. Thus, persons married in New York cohabited there for near- ly a year, when the wife, without any change of domicil, went to Vermont for the express and sole purpose of procur- ing a divorce for a cause not allowed by the laws of her own State. She obtained a decree in her favor, with an allowance of alimony; and, to recover the alimony, she brought her suit in New York. It was held, that she could not prevail, the Vermont divorce being in evasion of the law of her domicil. The court add: “It may be laid down as a general princi- ple, that, whenever an act is done in fraudem legis, it cannot be the basis of a suit in the courts of a country whose laws are attempted to be infringed.” + § 709 a. It is always important to consider between what va Borden v. Fitch, 15 Johns. 121, 145. And see Allen v. Maclellan, 2 Jones, Pa. 328; Harrison v. Harrison, 19 Ala. 499; Vischer v. Vischer, 12 Barb. 640. ‘a (Perry v. Meddowcroft, 10 Beav. 122 ; Meddowcroft v. Huguenin, 3 Curt. 403, 7 Eng. Ec. 438; s. c. on anneal 4 E. F. Moore, 386. 4 ‘Post, c.32. And see ante, § 150. Xe Jackson v. Jackson, 1 Johns. 424; 2 Kent Com. 108. And see Vischer * Vischer, 12 Barb. 640; Lyon v. Lyon, 2 Gray, 367. [ 688] r , C ’ CHAP. XXXI.] STABILITY AND EFFECT OF THE SENTENCE. § 710 parties, and in what manner, the question of fraud arises. This matter was somewhat discussed in a late Massachusetts case, in which the point adjudicated was, that, if a husband obtains a divorce on false testimony, the wife cannot have the divorce sentence declared a nullity, on a prayer inserted in her libel for divorce against him, filed at a subsequent term. The truth is, there are several questions on this subject of fraud in the sentence, not yet settled on authority; and. per- haps it will not be wise to pursue these speculations further here.” § 710. We have seen, that an adjudication, to have. the eonclusive force described, must involve the direct question of the existence and validity of the matrimonial relation, or of its dissolution. We have seen also, that, in every divorce . suit, both the fact and legality of the marriage are directly in issue, as the foundation of the proceeding; and that. the sentence of divorce, in form and effect, affirms them.*. It appears therefore clearly to follow, that, after such a sen- tence, these questions can no more be stirred. Thus, if a party is separated from bed and board for his adultery, he cannot afterward be heard on an application to have. the marriage declared null and void, ad ari on the score of impotence. 1 Greene v. Greene, 2 Gray, 361, 4 Am. Law Register, 42. 2 See an article in which several points are discussed, 4 Am. Law: Regis« ter, 1; 1 Bishop Crim. Law, § 678, 679; Harrison v. a 19 ig 499. 3 “Ante, § 700. ; 5 Ante, § 315. 5 Gnest v. Shipley, 2 Hag. Con. 321, 4 Eng. Ec. 548; ante, §57. This view is evidently sustained on principle, and. it was distinctly affirmed by Lord Stowell in the case cited of Guest v. Shipley. But the doctrine : seems not to have been always in the minds of the judges, though I am not.aware that-it was ever distinctly overruled. Thus, recently, in a suit for nullity promoted by the husband, Sir J. Dodson remarked : “ This case is attended. with very peculiar circumstances. The marriage took place in 1826. Then a suit was promoted, by the wife against the husband for a separation by reason of adultery, i in which she obtained a sentence ; the marriage, there- fore, which is the foundation’ of a decree of | sepatation, must in that suit 58* [689 ] § 711 THE CONSEQUENCES OF DIVORCE. [Book VI. -§ 711. If one brings a libel for divorce, which he fails to sustain by proof, and it is dismissed on due contestation, by a final judgment not in the nature of a nonsuit, he cannot afterward maintain a second suit for the same offence. He may however proceed for subsequent offences, or for offences which occurred during the pendency of the first suit.1 And where a libel for divorce sets forth various acts of adultery, with persons named-and persons’ said to be unknown, and alleges repetition of the crime between a certain day and the time of filing the libel; the libellant must be presumed to come prepared with every proof proper to be’ received, bear- ing on the subject of the complaint. And after a full hearing, followed by a decree of divorce or dismissal, the question must be taken as concluded between the parties; and a sec- ond proceeding cannot be sustained for any acts charged to have been done before the commencement of the first have been established. Then in 1838 there was a suit for nullity of mar- riage (1 Curt. Ec. 870) promoted by the wife against the husband. The husband defended that suit, and successfully, for the marriage was not held to be void and null. The wife then had obtained a sentence of separation, but failed in her suit for annulling the marriage; and so things remained till the present suit was instituted by the husband. When the present case came before Sir H. Jenner Fust, he took the objection that the jurisdiction was not-sufficiently pleaded; for the libel did not plead that the domicil of the wife was in the diocese of Canterbury,” &c. So the case was disposed of without any intimation that the former proceedings would be a bar. “Williams v. Dormer, 16 Jur. 366, 9 Eng. L. & Eq. 598, 2 Robertson, 505. Possibly some aid in this matter may be gathered from recurring to the principles stated ante, § 694-697. Some of the facts in the late case of Gaines v. Relf seem to have furnished scope for a discussion. of the doctrine in the text, but the point does not appear at all in the report. Gaines y. Relf, 12 How. U. S. 472. : 1 Vance v. Vance, 17 Maine, 203; Griffin v. Griffin, 8 B. Monr. 120. »* Vance v. Vance, supra. [ 690 ] BOOK VII. THE AUTHORITY OVER DIVORCE. CHAPTER XXXIL AUTHORITY AS EXERCISED BY THE COURTS. Secr. 712-7184. Introduction. 714-720. ‘The General Doctrine. 720 a-761. Specific Propositions. 7610-768. Divorces from Bed and Board and Alimony. 764-7660. Jurisdiction under particular Statutes. § 712. Tue principal object of this chapter is to explain, under what circumstances a judicial tribunal may properly take cognizance of a question of divorce; and’ under what circumstances, the cognizance having been taken, and a sen-+ tence of divorce pronounced, the sentence will be recognized ‘as valid and binding in the tribunals of other States. and countries. And the reader perceives, that two distinct inqui- ries,here present themselves ; for the fact may be, that the tri- bunals of a country will grant a divorce under such cireum- stances as will lead the tribunals of another country to hold it void, for want of a jurisdiction in the former country. Yet a fact like this is greatly to be deprecated; and the courts of every country, both when they decree divotces and when they sit in judgment on foreign divorces, should do whatever they [691] § 714 THE AUTHORITY OVER DIVORCE. [BOOK VII. consistently can to establish rules preventive of such a con- sequence.! § 713. The tribunals of every country are controlled by the legislative power; and, when lawfully commanded, they take jurisdiction of a question of divorce, though the individual judges believe the jurisdiction to be improper, or even believe the divorce sentence to be without authority under the inter- national law. The sentence, if void abroad, is still valid at home? Yet in a late Rhode Island case, the learned court very properly. laid down the doctrine, that, under general words of a statute, it would not undertake to dissolve a mar- riage between parties so situated that the sentence of dissolu- tion ought not to be held binding, on general principles of law, upon the courts of every other country or State? 713 a. In unfolding the matter of this chapter, we shall consider, I. The General Doctrine; II. Specific Proposi- tions; TIL Divorces from Bed and Board and Alimony; IV. Jurisdiction under particular Statutes. I. The General Doctrine. 4714. We have seen,! that, as a general proposition, a final judgment, establishing the validity or invalidity of a mar- riage, or dissolving it, rendered in one country, is good and binding on the courts in every other. ‘The matter qualifying this: proposition is, that, for the judgment to have any efficacy abroad, the tribunal rendering it must have authority over the question as it relates to the particular parties. And the authority must not’ only have been given by the law of the 1 And see observations of Shaw, C.J.,in Harteau v. Harteau, 14 Pick. 181, 187. : 2 See D’Arcy v. Ketchum, 11 How. U. S. 165. ® Ditson v. Ditson, 4 R. I. 87. ‘ Ante, § 700. And See Rose v. Himely, 4 Cranch, 241. [692 ] CHAP, XXXII.] AS EXERCISED BY THE COURTS. § 715 particular country in which the court sits, but it must also be an authority harmonious with the doctrines of international jurisprudence. The cases in which this matter has principally . arisen are, where sentence has been pronounced dissolving a marriage for an offence committed subsequently to its cele- bration. Ordinarily a judicial tribunal will give effect to a foreign matrimonial judgment, rendered under circumstances in which it would itself interfere in behalf of parties similarly situated! Yet if the courts of a foreign State, under com- mand of a statute, take jurisdiction to dissolve a marriage where they have no rightful authority over the cause, their judgment will be disregarded by the domestic tribunals, not- withstanding a similar statute at home would have compelled the latter to proceed in the same manner, under like circum- stances? Obviously, however, so illiberal a doctrine should’ be acted upon only in extreme cases. .§ 715. Let it, however, be borne in mind, that, to deter: mine whether a foreign tribunal rightfully took jurisdiction over a cause of divorce, the method is not to inquire, whether the local jurisprudence of our own country gives the same jurisdiction; because numberless technical obstacles there are, in particular States and countries, of which the in- ternational law takes no cognizance. For example, if the constitution of the English ecclesiastical tribunals, wherein all divorce causes were heard anterior to the year 1858, and. the statutes of England, forbid the citation of any defendant out of his diocese; while a particular defendant, domiciled abroad, belongs to no diocese within the kingdom ; this may perhaps be an insuperable obstacle to those tribunals practi- cally exercising the jurisdiction ;? but the consequence by no means follows, that the jurisdiction is not properly in them, and that, if the technical difficulty were removed, their judg- Tt ‘ ? Harding v. Alden, 9 Greenl. 140, 147; Cooper v. Cooper, 7 Ohio, 238, 2 Irby v. Wilson, 1 Dev. & Bat. Eq. 568, 581, See post, § 733.and note, . : . [ 693 ] § 717 THE AUTHORITY OVER DIVORCE. [Book viz. ment in such a case would not be entitled to credit in other countries. So in most of the American States, it is neces- sary under statutes for the plaintiff to have resided in the State a specified number of years, before bringing his suit for divorce; but it does not follow, that a decree pronoun- ced abroad where such previous residence is not required, would not receive full faith and credit in those States where it is. These statutory provisions need not here be discussed ; our object being to determine, when there is a proper jurisdic- tion without reference to statutes. § 716. Still the foregoing views only lead us again to the proposition, that, whenever a tribunal is unincumbered by specific statutory direction, it should take or decline the juris- diction over a matrimonial offence, made, by the law of the State, ground of divorce, according as the circumstances are such as to render the judgment it may pronounce dissolving the marriage good in other countries, or not good in them, under a true construction of the international law on this subject. Therefore in the following sections we shall treat of these two branches of the doctrine as one; bearing in mind, that we are not considering technical difficulties, under partic- ular local statutes, so much as considering the general and in- ternational law on the subject. § 717. With these preliminary observations, we come to the subject of our inquiries; namely,— What are the cir- cumstances which give a court rightful jurisdiction over a cause of divorce? This is a question, in some of its branches, of considerable obscurity and conflict in the authorities; but, as we approach it, we are furnished with a key which we shall find, as we procéed, will unlock most of its difficulties, and enable us to pass freely through its intricacies and partial- ly illumined ways. It is, to use the language of Taney, C. J., of the Supreme Court of the United States, that, “every State has an undoubted right to determine the status, or domes- tic and aa of the persons domiciled within its ter- CHAP. XXXII.] AS EXERCISED BY THE COURTS. § 7174 ritory.””1 Mr. Burge has expressed the same thing in similar language. He says, the status of persons is “conferred, by the laws of the domicil;” and, within this principle, he in terms includes marriage, in respect both to its institution and dissolution2 “Each State,” he says in another place, “possesses the power of regulating the enjoyment and trans- fer of property situated in its territory ; and of defining the civil rights and capacities of those who may become its sub- jects by birth, by acquired domicil, or even by temporary residence.”? This doctrine results necessarily from the fa- miliar and well-settled principle of international law, that each nation has an exclusive sovereignty within its own ter- ritory ;* which sovereignty also, existing in like manner in every other nation, precludes the former from exercising a direct authority beyond the limits of its own dominions.’ We have seen,® that marriage is a status; so the question of divorce is one of status. § 717 a. In a previous chapter? we had occasion to see, that, according to the better doctrine, the international law of marriage enables persons to enter into this relationship, whenever they choose, by conforming to the law of the place where they are for the moment, though this law should be more open to them than the law of their domicil. But for 1 Strader v. Graham, 10 How. U. S. 82. _ ? Burge Col. & For. Laws, 57, 58. And see ante, § 150. 2 11b.2. “In the opinion of the greater number of jurists, the law of the actual domicil, and not that of the domicil of origin, determines the status .or capacity, in every case except in that of legitimacy or illegitimacy, and the capacity to become legitimated by the subsequent marriage of the pa- rents, and of freedom or slavery. This opinion is supported by the prepon- derance of authority, and is most consistent with the principles on which the recognition of a foreign law is founded.” 1 Ib. 13, 14. See also Story Conf Laws, § 51; post, § 721, 722. * Story Confi. Laws, § 18. 5 Ib. § 20. . & Ante, § 29 et seq. 7 Ante, § 125 et seq. [ 695 J i § 718 THE AUTHORITY OVER DIVORCE. [BOOK VII. reasons mentioned in the same chapter,! the same rule does not apply to divorce. And the necessity and natural right which established the rule mentioned, as applicable to mar- riage, establishes the other rule mentioned, as applicable to divorce. The interest and policy of every nation being to favor marriage, no harm can come from permitting persons to marry wherever they may be, in any part of the world, by simply conforming to the law of the place; yet just as strongly as this consideration presses in favor of the rule drawn from it, just so strongly it presses against any such rule as applied to divorce; because divorce is the opposite of marriage, is the undoing of what policy demands should be done. And though the laws of every country ought to allow divorce under some circumstances, yet the domestic law should not, in this regard, be overridden by the foreign. If it were, then parties might be divorced when they pleased, by going to some country where the divorce was permissible, in utter disregard of the law of their domicil. § 718. A distinction illustrative of this subject is the fol- lowing: While every State determines the status of persons domiciled within it and usually gives to those who come from abroad the status they bore abroad, still no State uni- formly accepts of every status which any person coming into its dominions may have sustained elsewhere. Generally indeed, when one comes, even temporarily,’ from a foreign State or country to our own, we permit such person to have while with us his former status; but this depends upon the nature of the status in question. If it is a status not recog- nized by our domestic law, we refuse to receive it; but ordinarily we do receive it, when our law acknowledges the like status. Still in the latter case, the status stands 2 Ante, § 150. * ‘See Story Confl. Laws, § 51, 65-68, 71, 101; 1 Burge Col. & For. Laws, 258. 3 Story Confl. Laws, § 102. [ 696 ] CHAP. XXXII] AS EXERCISED BY THE COURTS. § 719° upon our own law, not upon the foreign. For example,— if two persons in South Carolina sustain the mutual status: of master and slave, the tribunals of Massachusetts will take cognizance of it, like any other matter of foreign law, while they remain there; but, if they remove to Massachusetts, the relation will not be recognized in the latter State, slavery being against the policy of its laws, which know, indeed, of no such condition existing within its borders. If, however, these persons remove to Virginia instead of Massachusetts, they will sustain there the former status, because it is both known to the laws of Virginia, and is harmonious with their policy.? '§719. Marriage, as said many times in this volume, ac- cords with the policy of every Christian and civilized coun-’ try ; being moreover an institution, not only of municipal, but of natural and of international law.’ 'It everywhere origi- nates in the consent of the parties, while dissoluble only at: the sovereign pleasure. From these and the foregoing propo- sitions therefore it follows:—first, that the laws of every State must determine the matrimonial, as every other, status of its domiciled subjects; secondly, that the tribunals of every other country must ordinarily look to the laws of the domicil in respect to the same question; thirdly, that, when persons remove from one State or country to another, they will im- mediately assume in the latter the same status, whether as married or single, which they sustained in the place of their last preceding domicil; fourthly, that they so assume ‘it by vir- tue of the law of their new domicil, not of the old, to which old law they are no longer subject, and the status in the new locality assumes the character and incidents given it by the new law, not the old. Marriage could not indeed be a thing either of international law, or of universal private right and 1 See Story Confl. tee, g 28, 69; ante, § 146. 2 See Ib. § 32, 96, 96 a, 98. 59 [697] § 720 THE AUTHORITY OVER DIVORCE. [Book VII. obligation, and be governed by any other principles. It could not be international, unless there was a uniform rule among all nations whereby to determine whether or not it exists; it could not be treated as resting in private or natural right, unless the relation lawfully established was respected every- where ; and, since there must be a uniform rule, such rule can refer the question to no other law than that of the domicil of the parties, without overturning the authority of governments over their own subjects.1_ How far these propositions conflict with what was said relating to marriage, as distinguished from divorce, has been considered elsewhere? § 720. The exclusive right, therefore, of each State to de- termine the matrimonial status of persons domiciled within it, gives its tribunals exclusive jurisdiction over divorce causes between them. In the language of Judge Story: “« The doc- trine now firmly established in America upon the subject of divorce is, that the law of the place of the actual bond fide domicil of the parties gives jurisdiction to the proper courts to deeree a divoree for any cause allowed by the loeal law; without any reference to the law of the place of the original marriage, or to the place where the offence for which the di- vorce is allowed was cornmitted.”® This doctrine has forced its way through many a field of conflict; and, though its au- thority is fully acknowledged in the United States, it is hardly + And see ante, c. 7, and particularly § 144-151. 2 Ante, § 150. ® Story Confl. Laws, § 230a; Harding v. Alden, 9 Green]. 140; Tolen v. Tolen, 2 Blackf. 407; Wall v. Williamson, 8 Ala. 45; Wall v. Williams, 11 Ala. 826; Hanover v. Turner, 14 Mass. 227; Fellows v. Fellows, 8 N. H. 160; Barber v. Root, 10 Mass. 260; Pawling v. Bird, 13 Johns. 192; Jack- son v. Jackson, 1 Johns. 424; Pomeroy v. Wells, 8 Paige, 406; Freeman v. Freeman, 3 West. Law Jour. 475; Maguire v. Maguire, 7 Dana, 181; Har- rison v. Harrison, 19 Ala. 499. Hosack says, this rule “seems to be at ence the most equitable in itself, and to afford the best guaranty for the bona fides of the parties in seeking a judicial dissolution of the marriage.” Hosack Confl. Laws, 286. [ 698 ] CHAP. XXXII] AS EXERCISED BY THE COURTS. § 720 so either in England or Scotland. There is hope, that, tri- umphing everywhere, it may yet bring into concord in this matter the tribunals of the two countries last mentioned. Let us examine it more minutely; and thus see, not only its limi- tations, but some other of the reasons on which it rests.1 ‘ This subject has been considerably discussed’ by Mr. Burge, in his Com- mentaries on Colonial and Foreign Laws; and, as his work is not in the hands of the American profession generally, I need make no apology for introducing here the following extract; in which the doctrines of the text, substantially, are ably enforced by the learned author. He says: “ The fol- lowing are the considerations, en which it is submitted, that neither the lex loci contractus, nor the law of the country in which there has been only such a temporary residence as enables a party to sustain a suit, ought to be adopt- ed, but that the appropriate law by which the dissolubility of the marriage is to be determined, is that of the actual domicil. “« The lez loci contractus is, and ought to be, invoked only for the purpose of ascertaining, whether that which is represented to be a marriage is so in daw; or, in other words, whether the relation or status of husband and wife has been legally constituted. When that purpose is answered, and it has been ascertained, that, according to that law, a valid marriage has been con- tracted; as the connection of the parties with the country in which that law exists, and consequently their subjection to that law, cease, so the law itself ceases to be the rule or authority which governs their conduct, or regulates their rights and obligations. “The contract or consent on which the status of husband and wife is founded, should be considered as perfectly distinct from the status itself. The latter is juris gentium, and its relations extend so far beyond the parties themselves, that, unlike a contract, it is not in their power to prescribe for themselves the rights which it shall confer, or the obligations which it shall impose on them. ... . “ The municipal law of every country takes upon itself to define and de- clare the rights, duties, and obligations, which shall be incident to the status of marriage, whether that status has been originally constituted under its own law, or under that of any other country. “Tt would be deprived of its legitimate power, if persons, by importing the regulations prescribed by the law of some other country for their exclu- sive government, could withdraw themselves from those which the municipal. law of the country in which they reside had prescribed for all its inhabi- tants. “Tt is not therefore to the law by which the status is originally consti- tuted, but to the law which, after it has been constituted, defines its rights, conditions, duties, and obligations, that resort must be had, in ascertaining [ 699 ] § 720 a THE AUTHORITY OVER DIVORCE. [Book vil. Ii. Specific Propositions. § 720 a. Descending therefore to a more minute examina- tion of the doctrine, we shall look at each of the cireumstances what those conditions, rights, duties, and obligations are. These are ques- tions, not of contract, but of status; and they ought to be determined by that law which would be applied to the decision of other questions of status. “ The decisions in the negro Sommersett’s case, 20 Howell St. Tr. 1; and Knight v. Wedderburn, 15th Jan. 1778, Morr. Dict. Decis. 14545, that a slave of the British Colonies, on his arrival in any part of the United Kingdom, be- came immediately free, proceeded on the principle, that the status became no longer subject to the law of the country in which it was constituted, when the party ceased to be domiciled in that country, but subject to the law of the country in which he had arrived. They were not, and could not be, founded on the abstract principle that slavery was universally illegal, and therefore, that no law under which it existed could be recognized in an English court ; because the same law which said that slavery was unlawful, and could not exist in England, ‘that its air was too pure for slavery to breathe in,’ that ‘the moment the slave put his foot on the shores of Eng- land he became free,’ also said, ‘that slavery did and could exist in her colonies ;’ and the daily decisions of her courts recognized it as a subject of property. In the conflict between the law of England and that of her col- onies, the jurisprudence of England and Scotland, whilst it recognized the colonial law on questions of contract and property, rejected it in the ques- tion of status, and adopted the law of England, because it had become the slave’s domicil. Upon this principle, also, the status of slavery, which had ceased whilst the person remained in England, was held to revive when he returned to the colony. The Slave Grace, 2 Hag. Adm. 94; Williams v. Brown, 3 B. & P. 69. See the argument of Mr. Hargrave, in the negro Sommersett’s case, 20 Howell’s State Trials. “ The selection of the law, by which not only the rights of property, but the personal capacities and powers of the husband and wife, are decided, is made on principles which are equally applicable to, and ought to determine, the selection of the law by which the dissolubility or indissolubility of the marriage is decided. Those capacities and powers are decided, not by the lex loci contractus, but by the law of the country in which the husband is actually, or in which he intends to be, domiciled... . . “Tt has been assumed, that the dissolubility or indissolubility of the mar- riage is an essential part of the contract itself. There seems to be a striking fallacy in this assumption. Jt confounds the municipal regulations which prescribe the form in which the marriage is contracted, and authorize or dis- [700 ] CHAP. XXXIL] AS EXERCISED BY THE COURTS. § 720 a and facts which have been supposed by some tribunals, or which in the nature of things may seem adapted, to qualify allow its dissolution, and which are limited in their operation to the country in which they are established, with those qualities which are paramount to all municipal law, and are of universal obligation. The only qualities which can be called essential, because they are required as indispensable in the constitution of the conjugal relation in every country where Christianity and the law of nations are recognized, are the consent and capacity. of the parties, and no such propinquity between them as is within the prohibited degrees. “The diversity in the laws of different countries, and at different periods in the same country, as to the manner of contracting marriage, abundantly establishes the distinction as it regards the constitution of the status. It also establishes, that its dissolubility or indissolubility is not an essential quality of the marriage. It has been forcibly observed, that the qualities of marriages celebrated before Foljamb’s case, when the law of England admitted their dissolubility, cannot be distinguished from those which belong to marriages celebrated since that period, when their dissolubility was denied. “‘ The assumption, that the indissolubility is an essential quality of a mar- riage contracted in England, is also inconsistent with the fact, that it may be and is dissolved by an act of parliament. There is an incorrectness in the expression, that an English marriage is indissoluble. It is indissoluble only sub modo. It is dissoluble, if the party seeks its dissolution by an act of parliament, instead of instituting a suit before a judicial tribunal. In truth, by the law of England, a divorce & vinculo can only be obtained by a par- ticular proceeding. The necessity of resorting to that proceeding is the local municipal regulation to which the law of England subjects the status of marriage. “ Merlin considers the effect which the law of France of 1792, granting divorces, and that of 1816, abolishing divorces &@ vinculo, would have on marriages contracted before the promulgation of those laws. If the dissolu- bility or indissolubility of the marriage was an essential quality, or, in his language, if it were comme Uéat epoux, Peffet immédiate et la simple consé- quence of the marriage, there could be no doubt, that, as the status was con- stituted by the law as it existed at the time of the marriage, the parties would be justified, in the one case, in insisting that their contract was, that their union should be indissoluble, and in the other, that it should be dissolu- ble in certain cases: ‘et que, dans l’un comme dans l'autre, ce serait a la loi du temps du contrat qu’il faudrait s’en rapporter sur la force du lien que les parties contractantes auraient formé. But he denies that itis... .. “Tt has never been insisted, that the lex loci contractus ought to be ap- plied in determining for what causes, and under what circumstances, it was competent to grant divorces a mensd et thoro. Neither has it been assumed, 59* [701 ] § 7204 THE AUTHORITY OVER DIVORCE. [Book VII. it; thus bringing under review both what has been decided, and what may be likely hereafter to arise for decision. that the cause for which the temporary separation of the parties might take place was an essential quality of the marriage contract. If there were any foundation for such an assumption, in respect of a permanent separation dis- solving the marriage, it would equally exist in respect of the temporary sep- aration of the parties. “The means by which the discharge of the duties and obligations of the status may be most effectually secured, the redress which ought to be -afforded to either party when they have been violated, the manner in which the public morals and good order of society may be best promoted, are the objects of every State in the municipal regulations by which it authorizes the temporary separation of the parties, and suspends the obligations of the status. Each State is the best and only judge of the means by which these objects may be most effectually attained; and, as it is only bound, so it only professes, to consult the interests of its own subjects. It therefore applies its own law to those who are its subjects, and for whom, therefore, that law was established. _“ The exclusion of the lex loci contractus, and the adoption of that of the domicil in questions of divorce a mensé et thoro, afford a strong argument for the exclusion of the former, and the adoption of the latter, in questions of divorce & vinculo. The latter, no less than the former, species of divorce, is a municipal regulation, and both originate in the same considerations, and are directed to the same objects. “ The adoption of the lex loci contractus, when it does not allow the disso- lution of a marriage, would require, that it should be adopted when it does allow the dissolution. Hence, a marriage contracted in Scotland, Prussia, or any other State, ought to be deemed dissoluble in England. But as no judicial tribunal is established in England possessing jurisdiction to dissolve it, the law cannot enforce its own principle. Such a defect of jurisdiction affords an additional ground for doubting the correctness of that principle. The soundness of any principle of international jurisprudence may be rea- sonably doubted, when the country which adopts it does not afford the judicial means of giving it effect. “But the adoption of the law of the domicil does not involve any such inconsistency. A person who had contracted a marriage in Scotland, and applied to a judicial tribunal in England for a divorce a vinculo, would fail in his application, because the law to which he had subjected himself, either by resorting to it, or by his actual domicil, did not authorize such a divorce. The rejection would be warranted by the lex loci domicilii. _ “Upon these grounds it is submitted, that the adoption of the lex loci con- tractus in questions of divorce is not warranted, either by the purpose for which this rule has been established, or to which it has been accustomed to [ 702 ] CHAP. XXXII] AS EXERCISED BY THE COURTS. § 7204 And the matter will be discussed in the order of a series of propositions, which seem to the writer to announce the true dactrine. be applied, but that it is at variance with those principles of international jurisprudence which have obtained the general concurrence of jurists, and are best calculated to maintain the legitimate authority of the laws, as well as to promote the common interests of all States. “ As its dissolubility or indissolubility is no part, express or implied, of the contract of marriage, but is an incident to the status of husband and wife after it has been constituted by such contract, it must be determined by the law to which the status is subject. In a preceding part of this work [vol. i. p- 102, 244, Burge Col. & For. Laws], it has been shown on the authority of jurists, and, it is conceived, on grounds of public policy, that the law to which it is subject is that of the actual domicil. “The same considerations which exclude the lex loci contractus from the decision of the question of dissolubility, recommend the adoption of the law of the actual domicil, rather than that of the country in which the residence “ The incidents and qualities of the status are conferred by the law of the country in which the person acquires a residence animo remanendi. A State has no interest in, nor does it profess to regulate, the condition of those who are to all intents and purposes foreigners; except so far as by their acts or conduct, or in respect of their property, they become the objects of her laws. Thus, when it is said by Burgundus, Lauterback, Hertius, and other jurists, ‘tota persone conditio et status regitur A legibus loci cui ipsa sese per domi- cilium subjecit,’ they contemplate, not the place of a temporary residence, to which the person has paid a transient visit, but ‘illud domicilium ubi quis frequentits ac diutiis commorari solet rerumque ac fortunarum suarum majo- rem partem constituit.’ Hertius, De Coll. vol. i. § 5; Ib. § 8, pp. 124, 125. “ Hertius has pointedly contrasted the limited and qualified effect of the law of a place of mere temporary residence, with that of the law of the real domicil: ‘ Leges, que personz qualitatem sive characterem imprimunt, comi- tari personam soleant, ubicumque etiam locorum versetur, tametsi in aliam civilalem migraverit. .... Quandoquidem extera illa civitas in advenam non habet potestatem, nisi ratione actuum, vel bonorum immobilium ; in reliquis iste patrie sue manet subjectus’ Ib. p. 123. In a preceding passage he has explained in what respect, and by what means, this partial and limited sub- jection takes place: ‘ Ratione actuum subjiciuntur cujusque generis persone, etiam adrene sive exteri, vel transeuntes vel negotiorum suorum causé ad tempus in civitate commorantes, quatenus nimirum ibi agunt, v. 2. contrahunt vel delinquunt.’ Hertius, vol. i. § 4, p. 121. [ 703 ] § 721. THE AUTHORITY OVER DIVORCE. [Book vi. § 721. First. The tribunals of a country have no jurisdic- tion over a cause of divorce, wherever the offence may have oc- “It is perfectly reasonable, and the interests of the civilized world require, that the tribunals of every country should entertain questions of contract be- tween persons who are only its transient visitors; but there is no reason for applying, to the determination of the incidents and qualities of their status, a law which never professed to regulate it, which they never contem- plated, and to which they have no intention by any future residence of conforming. ; “ The law by which the succession to movable property is governed, per- haps affords, in the origin and principle of this rule, another reason for adopting the law of the real domicil. The law of this domicil is applied from the presumption, that the ownér of this species of property wishes its distribution to be made according to that law to which he had by his domicil subjected himself. But his mere casual or transient residence does not afford this presumption; and therefore the law of the country in which he died is not applied, if it be not also that of his real domicil. ‘“‘ The competence of the tribunals of one country to dissolve a marriage, in case it has been contracted, or the parties have their real domicil, in another country, becomes a question in consequence of its not being dis- soluble either by the lex loci contractus, or by the law of the real domicil. Hence the party resorts to the tribunal of the foreign country for the purpose of avoiding the disability, or contravening the prohibition, imposed by the law of his own country. It seems scarcely compatible with. the respect which States owe and render to the laws of each other, that the tribunals of one should afford assistance to the ‘subject of another State, in withdrawing himself from the operation of a law which is obligatory on him. Nor is it required by any considerations for the supremacy of its own laws, that such assistance should be afforded. “ Jurists generally concur in considering, that a person by his removal from another country, for no other purpose than that of doing an act which the law of his own domicil prohibited, cannot give to such act the validity or legality which the law would have conferred on it, if it had been done by one who had become bond fide domiciled. [The subject is considered, 1 Burge Col. & For. Laws, 190.] It affords a further ground for not applying the law of divorce in such a case. It has been justly observed, that Lolley’s case might have heen decided on its own peculiar circumstances. He was making an engine of the law of Scotland to de- feat the law to which he was properly amenable. Fergusson App. p. 403. The same observation may be made on the case of Conway v. Beazley.” 1 Burge Col. & For. Laws, 680-691. [704 ] CHAP. XXXII. ] AS EXERCISED BY THE COURTS. § 721 curred, if neither of the parties has an actual, bond fide, domicil within its territory. It is immaterial to this proposition, that one or both of the parties may be found temporarily within reach of the process of the court, or that the defendant ap- pears and submits to the suit. This is the firmly established doctrine both in England and America! The reason of it is, that a government has no interest to change the matrimo- nial condition of strangers temporarily within its territory ; and that, seeing every nation may determine the status of its own domiciled subjects, such interference by foreign tribunals would be an officious intermeddling in a matter with which they have no concern.2 Obviously a judgment of divorce so rendered could not be binding in the country of the parties’ domicil. Neither could it be binding in any third country ; because, in such third country, the parties will be understood to have the status given to them, and continued in them, by the law of their domicil. 1 Conway v. Beazley, 3 Hag. Ec. 639,5 Eng. He. 242; Rex v. Lo'ley, Russ & Ry. 237, 2 Cl. & F. 568, note; Sugden »v. Lolley, 2 Cl. & F. 567; Ferg. Consist. Law, App. 13; Fellows v. Fellows, 8 N. H. 160; Hanover v. Turner, 14 Mass. 227; Barber v. Root, 10 Mass. 260; Thompson v. The State, 28 Ala. 12; Ditson v. Ditson, 4 R. I. 87, 93; Pawling v. Bird, 13 Johns. 192; Jackson v. Jackson, 1 Johns. 424. In Bradshaw v. Heath, 13 Wend. 407, 422, Savage, C. J., observes, that, in Jackson v. Jackson, both parties appeared, “and therefore the court had jurisdiction of the persons of the parties,” but the divorce was held void because there was no jurisdic- tion over the subject-matter. s. Pp. in Maguire v. Maguire, 7 Dana, 181; Pomeroy v. Wells, 8 Paige, 406; Tolen v. Tolen, 2 Blackf. 407; Freeman v. Freeman, 3 West. Law Jour. 475; White v. White, 5 N. H. 476; Harri- son v. Harrison, 20 Ala. 629; Hare v. Hare, 10 Texas, 355; Vischer v. Vischer, 12 Barb. 640. * “The status of a stranger, as married or unmarried, divorced a vinculo matrimonii, or only separated a mensé et thoro by judicial sentence for adul- tery, cannot be a matter of any concern to the law of the country, before the tribunals of which he happens to be convened during a transient resi- dence.” Opinion of two of the judges, in Duntze v. Levett, Ferg. 68, 3 Eng. Ec. 360, 371. 3 Ante, § 144, 150, 717-719. [705 ] § 722 THE AUTHORITY OVER DIVORCE. [Book VII. § 722. This doctrine was once expressed by Mr. Commis- sary Ross, a Scotch judge, as follows: “ The right to regulate every thing regarding the status of its subjects is assumed, by the supreme power in every State, as inherent in itself, being connected with its most essential interests. It is vested there, as forming part of the jus publicum which attaches to all the real subjects of the State, independently altogether of their will. The status of majority, minority, and the like, is imposed by a State on all those truly subjected to it, with- out any act on their part indicating their consent. When they happen to go beyond the boundaries of the State, by which any such status is imposed, into the territory of an- other State, where the law regulating personal status is differ- ent, the law, or supreme will of the State in the country into which they enter, does not, it will be observed, stand in any degree opposed, as in the case, of an ordinary contract, to what was fixed by the will of the individuals themselves; but stands opposed to the supreme will alone of the State by whom the status was attached. Now, in such a case, a State does not think herself entitled to arrogate to herself any power over the person of a foreigner, who, though he has entered her territory, has not become her subject. A foreigner is not obliged, like a subject, to have his status or personal quality and interests tried by the law of a country to which he never intended to submit himself, and of which he is not a proper subject.”! But this learned judge admitted, “that,” to use his own language, “if it could be made out, that a refusal on our part [Scotland] to sustain adultery committed here, when regarded merely in a civil light, as a relevant ground of divorce in every case, would be repugnant to the interests of morality among ourselves, this would compel us to sustain it’? * Opinion in Gordon v. Pye, Ferg. 276, 327, 328, 3 Eng. Ec. 430, 461. 8. P. in the opinion of the judges, in Duntze v. Levett, Ferg. 68, 3 Eng, Ec. 360, 371. % Opinion in Gordon v. Pye, Ferg 276, 352, 8 Eng. Ec. 430, 476. [ 706 ] 7 es a CHAP. XXXII] AS EXERCISED BY THE COURTS. § 724 § 723. The proposition in law is not a singular one, that parties are not permitted to litigate every question, in any jurisdiction, where a plaintiff may find a defendant. There must also be ground for taking cognizance of the subject- matter of the controversy! The entire class of local actions are illustrative of this suggestion; and so are, on the other hand, actions in rem, maintainable where the court has no jurisdiction over the parties, but only over the subject-matter. Likewise, observes Lord Glenlee: “It is very extraordinary to bring an action in this country in order to ascertain, a status to be held in another country. For instance, in the case of slavery, if the slave be in this country, we would not suffer him to be treated as such; but, if the master should be domiciled here, we could not sustain an action at the instance of the slave, who was resident in the West Indies, carried on- by his mandatory, for declaring his freedom.” 2 § 724. Still, as to the law of Scotland, though these propo- sitions have been maintained there with great ability by individual judges, and have been repeatedly ruled by the primary court, yet the court of appeal has as often reversed the ruling? The question has never received the direct 1 See Maguire v. Maguire, 7 Dana, 181, 183. 2 Duntze v. Levett, Ferg. 68, 406, 3 Eng. Ec. 360, 508. 3 See the several cases of Utterton v. Tewsh. Ferg. 23, 3 Eng. Ec. 347 ; Duntze v. Levett, Ferg. 68, 3 Eng. Ec. 360; Butler v. Forbes, Ferg. 209, 8 Eng. Ec. 401; Kibblewhite v. Rowland, Ferg. 226, 3 Eng. Ee. 406. The last-mentioned case is very strong. The defendant husband went from London, where he was married and domiciled, on a pleasure excursion to Scotland, remaining in the country only six or seven weeks in all. He committed adultery there, and was cited by his wife, still remaining in London, in an action of divorce. Immediately on receiving the citation, he returned to London. The primary court at first declined to entertain the suit, as for a divorce from the bond of matrimony; offering however a divorce a mensé et thoro, which was refused; but a divorce a vinculo was ultimately decreed by order of the court of appeal. Gordon v. Pye, Ferg. 276, 3 Eng. Ec. 430. For a general review of thes2 cases, see 2 Kent Com. 110-116; and, of these and other Scotch dec‘s:ons upon the same point, see Hosack Confl. Laws, 25 7-285. \ [707 ] § 7244 THE AUTHORITY OVER DIVORCE. [Book VII. decision of the House of Lords, the tribunal of last resort. Indeed the Scotch courts, from time immemorial, appear to have granted divorces without reference to the permanent domicil of the parties, or to the place where the marriage was contracted Nothing is ordinarily necessary to induce them to entertain the suit, but the service of process on the defender. The service may be by a personal citation, the moment he arrives in the country ;8 or by a citation left at his dwelling-place, after a sojourn of forty days ;* though it has been said there must be a forty days’ residence in all cases where the offence was committed abroad. It is not necessary the pursuer should even set foot in Scotland, if the defender has a sufficient abiding there;> for the oath of cal- umny® may be taken by commission.’ There is also an edictal citation, which may be resorted to where the pursuer resides in the country, and the defender is abroad® § 724 a. The foregoing propositions, as to when the Scotch courts will take jurisdiction, are subject to some qualifications, - the exact extent of which could not be stated in any single proposition; indeed the matter is not well defined in the * In Warrender v. Warrender, 2 Cl. & F. 488, 552, 556, on appeal from Scotland to the House of Lords, the Scotch law was assumed in argument not to require a domicil in Scotland. But the case itself’ was one in which there was a Svotch domicil; and the point decided was, that, by the law of Scotland, the marriage celebrated in England might be dissolved by the Scotch courts. 2 1 Burge Col. & For. Laws, 670. ® Duntze v. Levett, Ferg. 68, 3 Eng. Ec. 360; Kibblewhite ». Rowland, Ferg. 226, 232, 3 Eng. Ec. 406, 408; Conway ». Beazley, 3 Hag. Ec. 639, 3 Eng. Ec. 212, 246. * Duntze v. Levett, and Kebblewhite v. Rowland, supra. 5 Christian v. Christian, 13 Seotch Sess. Cas. n.s. 1149. See Forrister v. Watson, 6 Scotch Sess. Cas. N. 8. 1358. 8 Ante, § 353. 7 Duntze v. Levett, Ferg. 68, 3 Eng. Ec. 360, 878; Orde v. Mee Scotch Sess. Cas. nN. 8. 535. § Wharton v. Mair, Ferg. 250, 8 Eng. Ee. 415; Warrender v. Wameutioy 2 Cl. & F. 488, 9 Bligh, 89. [708 J CHAP. XXXII] AS EXERCISED BY THE COURTS. § 724 a Scotch authorities. The several questions, of the place of the marriage, the place of the delictum, the domicil of the parties at the time of the offence committed, the residence of each when the suit is carried on, are taken into the account. Where the parties were English, married and domiciled in England, and adultery was committed abroad; the Scotch court refused to sustain the cause, promoted by the husband, though he had resided forty days in Scotland, for the mere temporary pur- pose of giving the jurisdiction, his wife not accompanying him thither! And where the marriage was in Scotland, but the parties were afterward domiciled in Ireland, and there the adultery was committed, after which the wife returned to Scotland, the husband still remaining in Ireland; it was held, that this husband go residing abroad could not sustain in Scotland his suit for divorce, without the forty days’ abiding in Scotland.2 But where a husband changed his domicil from Scotland to the United States, leaving his wife behind, and she afterward committed adultery in Scotland; the Scotch courts took jurisdiction over his divorce suit, while himself thus personally abroad. “I put my opinion,” said the Lord Justice-Clerk, “upon the broad ground, that this party, having left his wife in Scotland——I do not say it would be different if he had sent her here, or if she had left him— finds, that in his absence she, resident in Scotland, has committed adultery in this country; and J hold, that the husband has the undoubted right to proceed against her, in such a state of facts, in the courts of this country; and I lay aside all consid- eration of his alleged domicil in America, as wholly immate- rial. Nor do I think his right could be excluded, although he might, by reason of such domicil, have proceeded against her in New York. The fact, that she is in Scotland and has com- 1 Ringer v. Churchill, 2 Scotch Sess. Cas. nN. 8. 307. Otherwise, where the marriage and adultery were in Scotland, and both the parties were there, though neither of them domiciled. Shaw v. Shaw, 13 Scotch Sess. Cas. N. 8. 819. 2 Bennie v. Bennie, 11 Scotch Sess. Cas. n. s. 1211. 60 [709 ] § 725 THE AUTHORITY OVER DIVORCE. [Book vil. mitted adultery here, gives the husband in this case right to prosecute for dissolution of the Scotch marriage.” } § 725. The grounds for entertaining the jurisdiction, by the Scotch courts, to dissolve marriages between parties domiciled in other countries, were stated by Lord Meadowbank, in a note reversing the interlocutor by which the court below had dismissed a suit of this kind, as follows: “ The interlocutor complained of seems to hold, that the Scotch courts have no right to take cognizance of the conduct of foreigners in Scot- land, respecting the relation of husband and wife, unless they have acquired a domicil in Scotland, animo remanendi there. But it is thought no warrant whatever can be produced for such a doctrine. Foreigners, equally with natives, are sub- jects to His Majesty, and to the law, while here; and, of course, under the protection of law. And those relations in which they stand towards one another, and which have been duly constituted before they came here, if relations recog- nized by all civilized nations, must be observed, and the obli- gations created by them fulfilled, agreeably to the dictates of the law of Scotland. If the law refused to apply its rules to the relations of husband and wife, parent and child, master and servant, among foreigners in this country, Scotland could not be deemed a civilized country; as thereby it would permit a numerous description of persons to traverse it, and violate with utter impunity all the obligations on which the principal comforts of domestic life depend. If it assumed jurisdiction in such cases, contrary to the dictate of the inter- locutor; but applied not its own rules, but the rules of the law of the foreign country, where the relation had been created; the supremacy of the law of Scotland within its own territories would be compromised, its arrangements for do- mestic comfort violated, confounded, and perplexed, and 1 Shields v. Shields, 15 Scotch Sess. Cas. N. 8. 142. And see further on this subject, Forrester v. Watson, 6 Scotch Sess. Cas. N. 8. 1858; Christian v. Christian, 13 Scotch Sess. Cas. w. s. 1149. ; [710] CHAP. XXXI.] AS EXERCISED BY THE COURTS. § 725 powers of foreign courts, unknown to our law and constitu- tion, usurped and exercised. And though, according to the implied doctrine of the interlocutor, foreigners, by a permanent residence, were to have the rights belonging to them under those domestic relations protected by the law of Scotland, still a great proportion of persons would, according to that doctrine, remain without law in this matter. If they kept changing their dwellings sufficiently often, they might re- main, like the gypsies of former times, at full liberty each to do that which was good in his own eyes. But it is thought the establishment of a domicil has no sort of connection with either the obligation to fulfil the obligatory duties of the domestic relations, or the competency of enforcing it. A person, the instant he sets his foot in Scotland, is as much bound to maintain his wife and child as after forty days’ residence there ; and, if he turned them out of doors destitute, the first day he arrived, he is unquestionably as liable to be sued for aliment, adherence, &c.,as if he had committed this outrage and resided forty days in one house. If not found in person to receive a citation, a domicil is of consequence; but it is of no consequence in such a case, if the foreigner is cited. in person, or his residence is sufficiently ascertained. The animus remanendi may be of great consequence to establish the presumptions on which the distribution of succession in movables is supposed to depend; but it does not seem to enter into the constitution of a domicil for citation by forty days’ residence, nor for many requisite for the validity of a personal citation to an action for obtaining redress of civil wrongs, more than for punishment of a crime. Nor can those suits for redress, which involve questiones status, admit of any different consideration. In all cases where the status claimed or decerned is juris gentium, the competency of try- ing such, wherever the person concerned is found, is obviously necessary. The domestic relations concern so much the most immediate comforts of life and the well-being of society, that, where the parties concerned are present, it is impossible to leave to the Greek calends, as the interlocutor complained of does, the trying of them, without incurring the [ 711] § 7264 THE AUTHORITY OVER DIVORCE. [Book VII. obloquy of a denegatio justitie.”! We have already seen, that this doctrine has not found favor either in England or the United States. § 726. The cases in which the principal discussion has arisen have been, where parties sought a divorce abroad for causes insufficient at home. In Scotland, indeed, some of the judges who opposed taking the jurisdiction to dissolve, between domiciled English persons, marriages celebrated in England, were still willing to give the complainant the remedy he would be entitled to in his own country; namely, the divorce a mensé et thoro2 Divorces from bed and board, however, are known to the laws of Scotland; and it is not apparent how any lawyer could entertain the suggestion, that a'court may administer to foreigners a form of remedy which it could not to citizens. But aside from this, and, as a gen- eral proposition, — suppose the laws of each country alike authorize, for the offence complained of, a dissolution of the marriage; it is not clear how this fact alone could induce the court to entertain a suit for establishing a matrimonial status to be held in another country; the matter being local in its nature, that is, local to the place of the parties’ domicil. Yet if it should, under such circumstances, do so; and fairly pro- nounce, after due contestation, a sentence of divorce, un- tainted by collusion or other fraud; a difficulty might arise, and the question is not fully settled, whether the judgment would be heeded by the tribunals of the parties’ domicil, and of other foreign countries. § 726 a. But looking to reason, what authority of reason do we find sustaining the general Scotch doctrine, that the Scotch tribunals may entertain suits for divorce between “1 Utterton v. Tewsh, Ferg. 23, 57, 3 Eng. Ec. 347, 857. 2 Ante, § 720, 721. ‘* Duntze v. Levett, Ferg. 68,3 Eng. Ec. 360; Butler v. Forbes, Ferg. 209, 8 Eng. Ee. 401; Kibblewhite »: Rowland, Ferg. 226, 3 bing: Ec. 406. 4 See 2 Kent Com. 109; ante, § 150.: [712] CHAP. XXXIL] AS EXERCISED BY THE COURTS. § 728 parties neither of whom has a Scotch domicil? The view taken by the Scotch judges, that the Scotch courts should protect transient persons as well as permanent persons in their marital ~ rights and relations, is very just. But the conclusion drawn from this view follows not from any correct line of argument. If a husband and wife are transiently i in Scotland, plainly the courts should hold him criminally when he beats his wife with a stick, even though he might lawfully use the same stick upon her at home. But why should they undertake to say, for this offence, or for the greater offence of adultery, that he be deemed no longer her husband? They may indeed, if the local law gives the authority, say, that, during his stay in Scotland, he shall not cohabit with her as a wife. §'726 6. But the divorce from the bond of matrimony ex- tends, in its very nature and intent, far beyond the interest and the consequent authority of the power which governs in Scotland, over persons and things transiently in the country. Its object is, on its face and in its spirit, not to regulate parties while in the country, not to determine the status to be borne by them while-in the country, but to fix their status and regu- late their rights during their entire lives, while it is known their entire lives are to be spent out of Scotland; and their rights, as to each other, are thereafter to be controlled by laws elsewhere governing. § 727. Secondly. To entitle the court to take jurisdiction, tt is sufficient for one of the parties to be domiciled in the country ; both need not be, neither need the citation, when the domiciled party is plaintiff, be served personally on the defend- ant, if such personal service cannot be made. § 728. But, before we discuss this proposition, it is nec- essary we should settle a preliminary question; namely, whether, for the purpose of a divorce suit, the husband and wife can have separate domicils. The general doctrine is familiar, that the domicil of the wife follows in law the hus- band’s. Still it will probably be found, on examination, that 60* [ 713] § 729 THE AUTHORITY OVER DIVORCE. [ BOOK. VII. the doctrine rests on the legal duty of the wife to dwell with the husband wherever he dwells. If he commits an offence which entitles her to have the marriage dissolved, she is not only discharged thereby immediately, and without a judicial determination of the question, from her duty to dwell with him, but she must abandon him, or the cohabitation will amount to a condonation, and bar her claim to the remedy. In other words, she must establish a domicil of her own, separate from his; though it may be, or not, in the same ju- dicial locality with his. Courts, however, may decline to recognize such separate domicil in a collateral proceeding ; that is, a proceeding other than a suit for divorce.2 But when the wife is plaintiff in a divorce suit, it is the burden of her allegation, that she is entitled, through the misconduct of her husband, to a separate domicil. If she fails to prove this, she fails in her cause. So when parties are already living under a judicial separation, the domicil of the wife does not follow the husband’s.? § 729. Tf, on the other hand, the wife commits an offence which entitles the husband to a divorce, and he brings his suit in his own jurisdiction, while she is found in another, it seems ‘clear upon principle, as it appears to be settled by authority, that she cannot set up her own offence in answer to his claim; and, since she is bound to follow him, his domicil must, for the purposes of the litigation, be taken as against her to be hers also. This principle has been carried at least to the ex- tent of avoiding any mere technical objection to the court’s taking jurisdiction of the husband’s cause, when the wife has been in fact dwelling in another country. And upon the like 1 Ante, c. 19. * See ante, § 560, 561, 642. * Williams v. Dormer, 16 Jur. 366, 9 Eng. L. & Eq. 598, 2 Robertson, 505. 4 Warrender v. Warrender, 2 Cl. & F. 488; Chichester v. Donegal, 1 Add. Ee. 5,19; Tovey v. Lindsay, 1 Dow, 117, 188,139 ; Whitcomb v. Whitcomb, 2 Curt. Ee. 351, 7 Eng. Ec. 139. But see Borden v. Fitch, 15 Johns. 121; Irby v. Wilson, 1 Dev. & Bat. Eq. 568,582. And see Greene v. Greene, 11 [714] CHAP. XXXIL] AS EXERCISED BY THE COURTS. § 730 principle, if the wife is plaintiff, and by the local law it is necessary for plaintiffs in divorce controversies to be domiciled in the country, she may sustain herself on her husband’s dom- icil there, though she be in fact living abroad; and he cannot set up, in answer to this position, his own wrong, on account of which she has lawfully acquired another domicil.1 The doctrine of the last period, however, has been denied by some courts, and in others it is perhaps not settled$ § 730. It is not apparent how it can be any more a uniform rule, that the wife’s domicil follows her husband's, than that she can not sue her husband. If she has adverse interests, and the law gives her the right to sue, it must give her, by impli- cation, a domicil in which to bring the suit; on the familiar principle, that every right carries with it, by implication, what- ever is necessary to make it effectual Upon this point, Shaw, C. J., has observed: “It is probably a juster view to consider the maxim,” that the wife’s domicil is the husband’s, “ to be founded upon the theoretic identity of person and of interest between husband and wife, as established by law; and the presumption, that, from the nature of that relation, the home of the one is that of the other, and intended to promote, strengthen, and secure their interests in this relation, as it or- dinarily exists where union and harmony prevail. But the law will recognize a wife as having a separate existence, and separate interests, and separate rights, in those cases where the express object of all proceedings is to show that the rela- tion itself ought to be dissolved, or so modified as to establish Pick. 410; Hull v. Hull, 2 Strob. Eq. 174; Harrison v. Harrison, 19 Ala. 499; Hare v. Hare, 10 Texas, 355. Masten v. Masten, 15 N. H. 159; Kashaw v. Kashaw, 3 Cal. 312; Har- rison v. Harrison, 20 Ala. 629. See Thompson v. The State, 28 Ala. 12,17; Hanberry v. Hanberry, 29 Ala. 719, 724. And see post, '§ 765. ? Schonwald v. Schonwald, 2 Jones Eq. 367; post, § 734. ® Kruse v. Kruse, 25 Misso. 68; Ashbaugh v. Ashbaugh, 17 Ill. 476. * Irby v. Wilson, 1 Dev. & Bat. Eq. 568, 582; Stevens v. Stevens, 1 Met. 279; 1 Bishop Crim. Law, § 83. 7 [715 J § 730 THE AUTHORITY OVER DIVORCE. [Book VII. separate interests, and especially a separate domicil and home; bed and board being put, a part for the whole, as ex- pressive of the idea of home. Otherwise the parties, in this respect, would stand upon very unequal grounds; it being in the power of the husband to change his domicil at will, but not in that of the wife.”! And the doctrine, that, for pur- poses of divorce, the wife may have a domicil separate from her husband, is well established in the American tribunals ; although some of the authorities would seem to take the dis- tinction (it is submitted, without proper foundation), that a wife cannot lose her domicil by the husband’s change of resi- dence after the offence is committed, yet cannot, on the other hand, acquire a new one.? It has indeed been distinctly laid down, that the wife cannot, by a removal of her habitation after the commission of the offence, acquire a new jurisdiction in which to prosecute her claim for divorce ;* though it is be- 1 Harteau v. Harteau, 14 Pick. 181, 185. And sce also The Republic v. Skidmore, 2 Texas, 261. 2 Frary v. Frary, 10 N. H. 61; Harding v. Alden, 9 Greenl. 140; Saw- tell v. Sawtell, 17 Conn. 284; Fickle v. Fickle, 5 Yerg. 203; Richardson v. Richardson, 2 Mass. 153; Brett v. Brett, 5 Met. 233; Fishliv. Fishli, 2 Litt. 337; Tolen v. Tolen, 2 Blackf. 407; Hare v. Hare, 10 Texas, 355; Hinds v. Hinds, 1 Clarke, Iowa, 36, 50; Hanberry v. Hanberry, 29 Ala. 719, 724 ; and the other authorities cited to this section. See also Dasent v. Dasent, 1 Robertson, 800; Wharton v. Mair, Ferg. 250, 3 Eng. Ec. 414; Harrison v. Harrison, 19 Ala. 499; Vischer v. Vischer, 12 Barb. 640. ® Dorsey v. Dorsey, 7 Watts, 349; Neal v. Her Husband, 1 La. Ann. 315; Jackson v. Jackson, 1 Johns. 424; Maguire v. Maguire, 7 Dana, 181, 186; but in the last two cases, certainly, the wife had not become a permanent resident of the State where she brought her suit, and for that reason could have no domicil there. And see Cooper v. Cooper, Milward, 373; Pawling v. Bird, 13 Johns. 192, 208; Tenducci’s case, cited 8 Phillim. 595; Collett v. Collett, 3 Curt. Ec. 726, 7 Eng. Ec. 563; Dasent v. Dasent, 1 Robertson, 800. In Pennsylvania it was enacted, Stat. April 13, 1815, §15, that “no person shall be entitled to a divorce from the bond of matrimony, &c., who is not a citizen of this State, and who shall not have resided therein at least one whole year previous to the filing his or her libel or petition.” It was afterward deemed necessary to provide, by act of April, 18, 1843, that the word “citizen,” used in the above section, “shall not be construed to apply [716 ] CHAP. XXXII.] AS EXERCISED BY TUE COURTS. § 731 lieved the preponderance of American authority, as well as weight of argument, is greatly the other way. § 731. Having therefore arrived at the conclusion, that the husband and wife may have, for purposes of divorce, separate domicils ; we shall find no difficulty in settling, upon princi- ple, that the courts of the actual bond fide domicil of either may entertain the jurisdiction. If it were not so, then both States would be deprived of the right to determine the status of their own subjects: each must yield to foreign power in the management of its domestic concerns. A State would thus be compelled to refuse to redress the wrongs of a citizen ; compelled to deny him, contrary to its own policy, the solace of actual married life; and to deprive itself of any increase of population which might result from the actual marriage of the citizen? The granting of a divorce by the one State, under these circumstances, does not interfere with the rights either of the other State, or of its apparently divorced sub- ject. Probably the decree is not directly binding upon the person of such subject; unless he appears and answers to the suit, or, at least, has notice of it, served upon his person within the jurisdiction of the court rendering it. He is not necessarily bound by any collateral clause in it, as, that he pay alimony; and he only ceases to be a husband, because\ he has ceased to have a wife. To this extent he would be affected, if she were -to die without his being summoned to her bedside; or to suffer capitally for an offence, in the locali- ty of her residence* The government of the country of his domicil cannot complain; its laws and domestic policy are not interfered with; it may still prohibit him, if it choose, from contracting a real marriage, the one dissolved having been nothing in fact but a sort of impediment to matrimony ; to any woman who shall have had a bond jide residence in this State, at least one whole year, previous to her filing her petition or libel.” Hollister v. Hollister, 6 Barr. 449, 452. 1 Ante, § 717-720. 2 Ante, § 149, 282, 285. 8 Ante, § 655, 657, 658. * See post, § 798. [717] § 733 THE AUTHORITY OVER DIVORCE. [BooK VII. and, if it can invent a way of causing a husband to exist without a wife, it can regard him still as being as much a married man as ever. § 732. The doctrine we are considering will hardly be dis- puted, in its application to cases where the suit is brought in the country of the domicil of the defendant, on whom notice has been duly served; and to cases where he has appeared and answered to the proceeding, in the country of the plain- tiff’s domicil. But the embarrassment is, where a plaintiff sues for a divorce in the courts of his own domicil, and no notice is, or can be, given to the defendant; except a publi- cation in the newspapers, which he may never see, or a per- sonal citation in the foreign jurisdiction, which legally amounts to no more than the publication ; since the process of a court cannot run into the territory of a foreign government. In the United States, unlike England and Scotland, it is prac- tically impossible for a party to proceed in another State than the one in which he lives; because, in probably all, unless possibly we except Louisiana, there are either statutory pro- visions requiring the plaintiff to have resided within the State a certain number of years before he brings his suit, or there are other technical statutory impediments, tantamount an their effect to this. But nearly or quite all the statutes provide for notice by publication to absent defendants; and, unless the judicial tribunals give effect to each other’s decrees rendered under these statutes, in favor of bond fide subjects, we shall be in a most distressing condition of conflict and confusion? § 733. The question of the right of the courts to assume jurisdiction, when the defendant is domiciled abroad, could never, it is presumed, have arisen in England; because there ' Harding v. Alden, 9 Greenl. 140; Irby v. Wilson, 1 Dev. & Bat. Eq. 568, 577; Tolen v. Tolen, 2 Blackf. 407; Collett v. Collett, 3 Curt. 726, 7 Eng. Ee. 563, 567; Dunn v. Dunn, 4 Paige, 425. 2 And see ante, § 714. [718] CHAP. XXXII.] AS EXERCISED BY THE COURTS. § 734 are in the way of such jurisdiction technical obstacles, having no relation to the merits of the case. It has always been the theory of the ecclesiastical judicatories, that they interfere for the good of the souls of the defendants, who are cor- rected and brought right by their judgments; but a bishop could not undertake the care of a soul not domiciled, espe- cially not present, within his diocese, much less of one domi- ciled and remaining out of the kingdom. Therefore it was common law in those courts,! and it was afterward provided by a statute, that no person be cited out of his diocese.? It has been held, however, that, this statute is merely for the benefit of defendants, who may waive the objection; and that third persons, as persons cited to see proceedings, cannot take advantage of it Besides, the English courts have no authority to dissolve valid marriages; and it may be doubted, whether a suit for separation from bed and board involves a question of status, within the principle we are considering. If it does, still no one would seek such a divorce under circumstances to give the decree no personal effect upon the defendant. § 734. It is a familiar general principle, that no person is bound by a judgment rendered in a jurisdiction to which he is in no way amenable, and in a proceeding to which he did not answer, and of which he had no notice either actual or 1 106th Canon of 1603, Gibs. Cod. 445, 446. 2 Stat. 23 Hen. 8, c. 9; Collett v. Collett, 3 Curt. Ec. 727, 7 Eng. Ec. 563, 564, Rogers Ec. Law, 2d ed. 779; Ayl. Parer. 182; Carden v. Carden, 1 Cart. Ec. 558. However, in Cooper v. Cooper, Milward, 373, it was held, that the Statute does not extend to Ireland, and that the Canon does not apply to persons having no fixed residence. And the learned judge, Dr. Radcliff, said: “Of this declaratory statute it is to be observed, that it and its penalties only apply to the case of persons cited, who are inhabitants and dwellers in some diocese or peculiar district, and not to persons having no habitation at all.” See also Nixon v. The Office, Milward, 390, note; Dasent v. Dasent, 1 Robertson, 800; ante, § 715. _? Collett v. Collett, supra; Chichester v. Donegal, 1 Add. Ec. 5,17, 18; Donegal v. Donegal, 3 Phillim. 586, 597. [ 719 ] § 734 THE AUTHORITY. OVER DIVORCE. [Book VII. constructive. No wonder, therefore, dicta have fallen from judges who had no occasion to examine the subject in all its bearings, opposed apparently to the doctrine we are con- sidering. Moreover it may be true, that a divorce obtained when the defendant was living in another country, without such publication or other notice of the suit as the case might admit of, would involve a species of fraud, which would avoid the judgment both at home and abroad! But the only American decision, which, aside from the dicta of the judges, is quite at variance with our position, appears to be that of Irby v. Wilson, decided by the Supreme Court of North Carolina, in 1837. The facts were, that persons intermarried in South Carolina, and removed thence to Tennessee, where they became domiciled. There the wife deserted the hus- band, and went to live in North Carolina, he still remaining in Tennessee. In due time he sued in the courts of his own State for the desertion, and obtained a decree dissolving the marriage; constructive, but not actual, notice having been served upon her by proclamations and publications, as di- rected by statute. This Tennessee divorce the North Caro- lina court held to be void; “because,” in the language of Ruffin, C. J., “it was not an adjudication between any parties ; since the wife did not appear in the suit, nor was served with process” (the court held, that there was no way in which she could be served, not being within the territory of 'l'efnessee),? “and was not a subject of Tennessee, but was a citizen and inhabitant of this State, and therefore not amenable to her tribunals.” ® It will be observed, that, according to this de- cision, it would be impossible for either of the parties, whom 1 Bradshaw v. Heath, 13 Wend. 407; Harding v. Alden, 9 Greenl. 140, 148. Borden v. Fitch, 15 Johns. 121, was a case of gross fraud. In Maguire v. Maguire, 7 Dana, 181, a fraud was attempted by the wife upon the juris- diction, and neither’ party had a domicil in Kentucky, where the suit was brought. And see post, § 736, 737; Vischer v. Vischer, 12 Barb. 640; Lyon v. Lyon, 2 Gray, 367. 2 See ante, § 732. 3 Irby v. Wilson, 1 Dev. & Bat. Eq. 568,576. See also Dorsey v. Dorsey, 7 Watts, 349; Vischer v. Vischer, 12 Barb. 640; ante, § 714. [ 720 ] CHAP. XXXII] AS EXERCISED BY THE COURTS. § 736 the other had abandoned for a residence beyond the reach of the process of the court, to procure a divorce for any cause, whether it occurred before or after the desertion, or for the desertion itself. § 735. But there is no case in which this subject is more satisfactorily discussed, or settled upon a more broad, liberal, and just basis, than that of Harding v. Alden, which came before the Supreme Court of Maine in 1832. This, it is per- ceived, is of a date somewhat earlier than the North Carolina case; in which, however, it was not cited. It was an action for dower against the grantee of the husband, under a statute allowing the woman, after a divorce for the husband’s adul- tery, dower in his lands, to be assigned in the same manner as if he were dead. The principal question was, as to the validity of a divorce decreed in the State of Rhode Island, on her petition alleging his adultery. ‘The parties were married in Massachusetts, and were afterward domiciled in Maine. There he deserted her and took up his residence in North Carolina, where he entered into an adulterous connection. The wife removed from Maine to Rhode Island; and, in the latter State, applied for and obtained a divorce in its Su- preme Judicial Court. The husband was never within the territory of Rhode Island; but the citation was served upon him personally in North Carolina, a mode of service which the court considered to be no better for the purpose of found- ing jurisdiction than service by publication, since no tribunal can send its process into a foreign couniry.2— The divorce was held to be good; and so the suit was sustained. § 736. The grounds upon which this decision was placed were substantially those we have already discussed ; though the principle was somewhat less elimated in it, than in the foregoing pages. “Jt was,” observed the court, the “inter- 1 Harding v. Alden, 9 Greenl. 140. ® Ante, § 732. 61 [721 ] § 736 a THE AUTHORITY OVER DIVORCE. [B00K VII. est” of the husband in his wife, “his right to exact from her the performance of duties, upon which the decree operated. She was within the jurisdiction. .... Most of the reasons which led to the adoption of the rule, that a marriage valid by the law of the place where solemnized should be valid everywhere, the protection of innocent parties, and the purity of public morals, require, that divorces lawfully pronounced in one jurisdiction, and the new relations thereupon formed, should be recognized as operative and binding everywhere. To this may be excepted cases of fraud and collusion, which, when pleaded and verified, vacate all judgments and decrees. And of this class are decrees obtained in fraud of the law of the domicil of the parties. Jackson v. Jackson and Hanover v. Turner! were decided upon this ground.” And the court urged the inconvenience which must result from refusing to give effect to such decrees; and showed, that it would amount to a denial of justice, except where the injured party could follow up the offender and become domiciled in his jurisdiction.2. This decision has received the commendation of Chancellor Kent,? and the doctrine it lays down js what is best sustained by authority.* § 736 a. Since the former editions of this work were pub- lished, cases have been decided in which the doctrine now under consideration has been more thoroughly discussed, and more firmly settled, than it had been when the foregoing sec- tions were originally penned. Thus in a Rhode Island case, the court, by Ames, C. J., entered fully into the matter, and 1 Jackson v. Jackson, 1 Johns. 424; Hanover v. Turner, 14 Mass. 227. See ante, § 734. ? Harding v. Alden, 9 Greenl. 140. 3 2 Kent Com. 6th ed. 110, note. * Mansfield v. McIntyre, 10 Ohio, 27; Tolen v. Tolen, 2 Blackf. 407; Hull v. Hull, 2 Strob. Eq. 174; Cooper v. Cooper, 7 Ohio, 238; Harrison v. Harrison, 19 Ala. 499 ; Gleason v. Gleason, 4 Wis. 64; Hubbell v. Hub- bell, 3 Wis. 662; Thompson v. The State, 28 Ala. 12; Ditson v. Ditson, 4 R. I. 87. [722] CHAP. XXXII] AS EXERCISED BY THE COURTS. § 736 a in an able opinion sustained throughout what has been laid down in this work upon this topic. The case was one in which the defendant was neither personally in the State nor personally cited; and the court, after full consideration of the subject, determined to take the jurisdiction to decree the di- vorce, on the express view that the divorce decreed would be, or should be, held to be binding throughout the world. After making the observations, concerning the nature of marriage, quoted in the early part of this volume,! the learned judge proceeded: “The right to govern and control persons and things within the State supposes the right, in a just and proper manner, to fix or alter the status of the one, and to regulate and control the disposition of the other; nor is this sovereign power over persons and things, lawfully domiciled and placed within the jurisdiction of the State, diminished by the fact, that there are other parties interested through some relation in the status of these persons, or, by some claim or right, in those things, who is out of the jurisdiction, and cannot be reached by its process. No one doubts this, as a matter of general law, with regard to the other domestic re- lations, and what special reason is there to doubt it, as to the relation of husband and wife? The slave who flees from Virginia to Canada, no treaty obliging his restoration ; or who is brought by his master thence to a free State of the Union, no constitutional provision enforcing his return; finds his status before the law, in the new jurisdiction he has entered, changed at once; and no one dreams, that this result of a new domicil and the new laws of it, is less legally cer- tain and proper as a matter of general law, because the master is out of the new jurisdiction of his slave, and is not, or cannot be, cited to appear and attend to some formal cere- mony of emancipation. It is true that slavery is a partial and peculiar institution, not generally recognized by the policy of civilized nations; whereas marriage, in some form, is co- extensive with the race, and, as a relation, is nowhere so re- . * Ante, § 35a. [723] § 736 b THE AUTHORITY OVER DIVORCE. [Book VII. strictive and so binding in its obligations as amongst the most truly civilized portions of it. Yet each nation and State has its peculiar law and policy as -to the mode of forming, and the mode and causes for judicially dissolving, this last rela- tion, according to its right; and all that other States or na- tions, under the general law which pervades all Christendom, can properly demand is, that, in the exercise of its clear right in this last respect as to its own citizens or subjects, it should pay all the attention, and no more, practicable to the com- peting rights and interests of their citizens and subjects. It should give to non-residents and foreigners, parties to such a.relation of general legal sanctity, as to persons of the like description interested in property within its territory, the rights to which are also everywhere recognized, at least such notice by publicity before it proceeds to judicial action as can, under such circumstances, be given consistently with any judicial action at all, efficient for the purposes of justice. To say that the general law inexorably demands personal no- tice in order to such action, or, still worse, demands that all parties interested in a relation or in property subject to a jurisdiction should be physically within that jurisdiction, is to lay down a rule of law incapable of execution, or to make the execution of laws dependent, not upon the claims of jus- tice, but upon the chance locality, or, what is worse, upon the will of those most interested to defeat it.” 1 § 736 b. There is also a late Alabama case, in which the matter is thoroughly examined, with the same result. The question arose on an indictment for polyamy, in which the defendant answered the charge by setting up a divorce in Arkansas. The court below instructed the jury to find the divorce void, if from the evidence they should believe, “ that the defendant was married to Gracy D. Smith in Alabama, and removed to an adjoining county in Mississippi, and, while living in Mississippi, left his family, and went to the State of 1 Ditson v. Ditson, 4 R. L, 87,102,103. * [ 724] CHAP. XXXII.] AS EXERCISED BY THE COURTS. § 737 Arkansas, and there resided one year, and then instituted a suit in Arkansas for divorce against his wife, who never resided in Arkansas, and never had personal notice of the exhibition of the suit [there was the constructive notice, by publication in the newspapers]; and further believe from the evidence, that the cause of divorce ‘commenced and existed beyond the State of Askansas, and never was continued or completed within the State.’ Yet the court of review held, that neither any one nor all of these things combined would make the divorce void. But, added the court: “ If the defend- ant did not go to Arkansas animo manendi; or, if he went. to that State merely for the purpose of obtaining a divorce, and intending to remain no longer than was necessary to accom- plish his purpose; or, if the divorce was procured by fraud, — the decree of the Arkansas court would be void, and the appellant, in marrying again in this State while his former wife was living, would commit the crime of polygamy.” 4 § 737. Unquestionably, as a good general proposition, “to. give,” in the language of Thompson, C. J., “any binding: effect to a judgment, it is essential that the court should have jurisdiction of the person, and of the subject-matter.”2 But the tribunals of a country in which any individual is domi- ciled have jurisdiction of the “subject-matter,” namely, his. status, and likewise of his person; and only upon this sub- ject-matter do they act when they declare him free from the bond of matrimony with one abroad. Indeed, if it were necessary to go into the inquiry, probably we should find it to be a fundamental principle, controlling the entire question of all judicial jurisdiction, that the courts are bound to redress the wrongs of citizens, while the right of defendants to -be cited is only secondary ; that the ground on which tribunals 1 Thompson v. The State, 28 Ala. 12, 21, 22, opinion by Walker, J. . * Borden v. Fitch, 15 Johns. 121, 141. Ayliffe lays it down, that “a cita- tion is matter of natural right, introduced ad origine mundi; for,” he argues, “ God cited Adam, saying, Adam! Adam! Where art thou?” Ayl. Parer. 180. And see ante, § 723, 734, 736. 61* [725] § 738 THE AUTHORITY OVER DIVORCE. [BooK VII. refuse to entertain mere personal suits against foreigners upon whom no process can be served, is, not alone because they are entitled to notice, but because the proceeding could do the plaintiff no good; and that the true reason why the jurisdic- tion, when the property of the defendant can be seized, will be entertained to the extent of such property, is because the plaintiff will thereby and to this extent be benefited! It is well known, that, in cases of proceedings in rem and quasi in rem, if they are free from fraud, the judgment binds the property of the defendant, whether he had actual notice or not, § 738. Perhaps also in respect to marriage, and upon other grounds than those already discussed, the legal identity of husband and wife, and their general duty of remaining together, should result in the consequence, that each must defend his matrimonial status, wherever the other has a domicil. Mr. Burge has some observations which may illus- trate this subject. “It is not considered,” he says, “ that the citation is necessarily ineffectual, for the purpose of giving the tribunal competent jurisdiction to proceed against the party, because he was not either actually or virtually present in the country at the time it was served. If the place in which the suit was instituted was that of his domicil, or if he was possessed of property there, he may be said to owe such allegiance and submission to its laws as to be subject to the species of citation which its laws have ordained; and it is in his power to secure to himself ample means of defending himself against the suit, by appointing a representative. A citation, therefore, under those circumstances, although at the time it takes place he may be absent from the country, is not necessarily so repugnant to the principles of natural justice that a foreign tribunal should refuse to recognize it, and treat a sentence founded on it as a nullity.” 2 1 See Sanford v. Sanford, 5 Day, 353. 7 3 Burge Col. & For. Laws, 1056. [726 ] CHAP, XXXII.] AS EXERCISED BY THE COURTS. § 738 b § 738 a. There is no question, that, on general principles, aside from the operation of particular statutes, if the de- fendant is pursued for a divorce in the courts of his own domicil, he cannot object, though the plaintiff is domiciled abroad! But this doctrine is practically useless in this country; because of the fact, already mentioned,? that the statutes of the States require a residence by the plaintiff in the State before he brings his suit. The requirement has been found important in order to prevent persons from rushing into particular States to obtain from the courts mere paper divorces; valueless, except to deceive and allure into void marriages, other persons who are ignorant of the law, and who would not knowingly enter into a polygamous connec- tion. § 7386. The foregoing discussion is perhaps sufficiently full, concerning the topic under consideration, important though it is; but a few words further may not be amiss. The relation of husband and wife can never be made a mere theoretical affair, a mere obstruction to actual marriage, without inflicting the deepest injury on the party innocent of offence, and violating all true public policy.2 And this is a proposition applicable, not in particular countries and local- ities only, but applicable in all places, to the entire race of man, wherever man is found on the earth, And when one of the parties is domiciled in one country, and the other party is permanently out of the country, the marriage is a mere theoretical thing; it is not what the international law, in a wise contemplation of the interests of associated nations, should favor. It is an impediment to matrimony, not matri- -mony itself, as this relation is viewed by the just and true eye of that genius of international glory and peace and virtue which should ever preside over the jurisprudence of nations. 1 And see Thompson v. The State, 28 Ala. 12, 17. 2 Ante, § 732. ® Ante, § 281, 524 a. [727] § 739 THE AUTHORITY OVER DIVORCE. [Book vir. It is also an impediment to matrimony, not matrimony, as viewed by the law of nature. And as viewed by the muni- cipal law of the country in which the injured person lives, if the delictum recognized by such law as sufficient for a divorce has occurred, it is also a mere impediment to actual matri- mony. We have, then, the three concurring voices, of natural law, of international law, of municipal law, all declaring the marriage to be truly a mere impediment to matrimony, not matrimony itself; all protesting against it, as injurious to the race, to the party, to the nation, to the community of nations; yet, in the face of all this, we have among us men learned in the law who tell us there is a technical reason why the im- pediment must for ever remain, as a monument to human folly, a disgrace to the name of marriage, and a blot on the law. § 738 c. And the technical reason in the way is the want of personal citation of the defendant within the couniry. Yet when he violated his marital duties, he did what, and only what, prevents him from being in the same jurisdiction with the plaintiff, where he could be cited. In other words, the consequence of his wrong is the thing set up as his protection against being divorced for the wrong. If men can plead, either their own wickedness directly, or what flows directly from their wickedness, in bar of a prosecution for this wicked- ness, the principle is a new one; or,if it is an old one, it merits reprobation. § 739. But the doctrine we are discussing applies only to the matrimonial status, and to things resting directly upon the status. “In giving effect here to the divorce decreed in Rhode Island,” said the court in Harding v. Alden, “we would wish to be understood, that the grounds upon which we place our decision limit it to the dissolution of the mar- riage. In the libel, alimony was prayed for; and certain personal property, then in the possession of the wife, was de- creed to her. Had the court awarded her a gross sum, or a weekly or annual allowance, to be paid by the husband; and [ 728 ] CHAP. XXXII] AS EXERCISED BY THE COURTS. § 739 the courts of this or any other State had been resorted to to enforce it; a different question would be presented, falling within the distinctions which have been supposed to qualify the decisions of the Supreme Court of the United States.” But the right to recover dower, though in lands aliened be- fore the divorce, followed, in the opinion of the court, as a necessary consequence, under the statute law of Maine, upon the dissolution of the marriage by the decree of the foreign tribunal, the same as by death.’ This distinction, between the right or jurisdiction to dissolve the marriage, and to settle collateral matters concerning property, has been often recog- nized; and it appears to be well founded in authority and in principle.2 Where, however, the defendant, who is a citizen of another State, employs counsel and defends the suit, he can have no benefit under this distinction; and the court has power to decree alimony against him, although he is not personally within the State, and has no property there.® Still the doctrine of this section has not yet been drawn in sufficiently distinct outline by the adjudications, to enable us to do more than announce it in this general way. It rests in part on the fact, that a judgment concerning a collateral matter of property would ordinarily not avail the plaintiff, unless he could get possession of the defendant’s person or his goods ; and in part on the fact, that the question of status stands on different reasons from these collateral matters ; so that it may be within a jurisdiction while they are not; they may be, while it is not. * Harding v. Alden, 9 Greenl. 140,151. “No State or nation can, by its laws, directly affect or bind property out of its own territory, or bind per- sons not resident therein, whether they are natural born subjects or others.” Story Confl. Laws, § 20. But in respect to dower in such a case, see Mansfield v. McIntyre, 10 Ohio, 27, and the comment on this case in Page on Div. 369, note. Ante, § 665. 2 Maguire v. Maguire, 7 Dana, 181; Holmes v. Holmes, 4 Barb. 295, 301 ; Crane v. Meginnis, 1 Gill & J. 463; Townsend v. Griffin, 4 Harring. Del. 440; ante, § 37, 664, 665, 667; post, § 798. * Sanford v. Sanford, 5 Day, 353. [729] § 741 THE AUTHORITY OVER DIVORCE. [BooK VII. § 740. Thirdly. The place where the offence was committed, whether in the country in which the suit is brought or a foreign country, is immaterial. This is the universal doctrine; it prevails alike in the English, Scotch, and American courts, and there is no conflict upon the point There may however be cases, in which the place of the offence, coming up for con- sideration in an incidental way, has been deemed important in respect of the matter of jurisdiction; but even such cases are anomalous, and, on principle, this matter should always be wholly disregarded. If aman should go abroad to commit adultery, he would be just as unfit a companion for his wife, and the interests of society would just as much require the dissolution of the marriage, and private claim would clamor as loudly, as though he had committed -the adultery in his own country. § 741. Fourthly. The domicil of the parties at the time of the offence committed is of no consequence ; the jurisdiction depending on their domicil when the proceeding is instituted, and the judgment is rendered. A contrary doctrine has been maintained in New Hampshire and Pennsylvania; in which States it is held, that the tribunals of the country where the parties were domiciled when the delictum occurred, have alone the jurisdiction? And in a recent Louisiana case, the majority of the court refused to grant a divorce for drunken- ness committed in another State, where the parties were married and domiciled, before becoming domiciled in Louis- iana. Campbell, J., observed: “We hold it to be sound doctrine, that parties who did not contract marriage under, or with reference to, the laws of this State, cannot base in our tribunals an action for divorce, on matters which occurred in another State, before they had acquired a domicil in this; 1 Burge Col. & For. Laws, 680; 1 Fras. Dom. Rel. 658; Duntze v. Levett, Ferg. 68, 3 Eng. Ec. 360, 379; Harding v. Alden, 9 Greenl. 140; Clark v. Clark, 8 N. H. 21; Harteau v. Harteau, 14 Pick. 181; Thompson v. The State, 28 Ala. 12; Hanberry v. Hanberry, 29 Ala. 719. 2 Post, § 742, 743. [730 ] CHAP. XXXII.] AS EXERCISED BY THE COURTS. § 742 although it may be competent, in a suit here, to offer evi- dence of such matters, as tending to establish the habit of which complaint is made.” } § 742. The history of this doctrine, as it prevails in New Hampshire and Pennsylvania, is instructive. It appears to be as follows: In Massachusetts, under the colonial system, divorces were granted by the Governor and Council2 And when the Constitution of the State was adopted in 1780, it declared, that “all causes of marriage, divorce, and alimony ..3.. shall be heard and determined by the Governor and Council, until the legislature shall by law make other provis- ion.”8 This other provision was made in 1786, when the jurisdiction was committed to the courts in these words: “ Whereas it is a great expense to the people of this State to be obliged to attend at Boston upon‘all questions of divorce, when the same might be done within the counties where the parties live, and where the truth might be better discerned by having the witnesses present in court, Be it therefore enacted, §c., That all questions of divorce and alimony shall be heard and tried by the Supreme Judicial Court, holden for the county where the parties live, and that the decree of the same court shall be final.’* But manifestly great difficulties of construction must arise under this statute, in cases where the parties had no permanent domicil, or where they had made a change of domicil from one county to another, or where they were living in different counties, or where only one of them was within the State; for, while the letter of the statute would leave them no forum when both were not residing in the same county, its spirit and intent evidently aimed to facilitate divorce; whence a strict construction could not be adopted; 1 Edwards v. Green, 9 La. Ann. 317, Buchanan, J., dissenting. And see Hare v. Hare, 10 Texas, 355, 357. 2 Gage v. Gage, 2 Dane Ab. 309. ® Chap. 3, art. 5. * Stat. March 16 (chap. 69), 1786, § 3; Harteau v. Harteau, 14 Pick. 181, [ 731 ] § 748 THE AUTHORITY OVER DIVORCE. [Book vIt. neither, on the other hand, could the letter be disregarded. And the courts naturally endeavored to find some principle, or set of principles, to guide them in applying this enactment to the ever-varying circumstances in which the question from time to time presented itself. One proposition was obvious, that a wife could not lose her forum by the desertion of the husband, or any change of residence made by him alone, after the commission of the offence; but, though in such a case she might proceed in the sunk where she continued to reside, yet it was not so clear she could gain, adversely to him, a new jurisdiction. These are observations applicable purely to the statute, and they have nothing to do with the general question. ‘Yet it is apparent, on a reference to the Pennsylvania? and New Hampshire 3 decisions, that such and similar observations from the Massachusetts court are the real source of their rule. ; § 743. The ground of principle upon which, in Pennsyl- vania, this rule was put by Gibson, C. J., is, that “ the person of the transgressor was not subject to our jurisdiction at the time of the fact.”4 But the New Hampshire court does 1 The following are some of the cases decided upon the construction of this statute: Lane v. Lane, 2 Mass. 167; Richardson v. Richardson, 2 Mass. 153 ; Hopkins v. Hopkins, 3 Mass. 158; Squire v. Squire, 3 Mass. 184; Moore v. Moore, 2 Mass. 117; Merry v. Merry, 12 Mass. 312; Choate v. Choate, 8 Mass. 891; Anonymous, 5 Mass. 197; Harteau v. Harteau, 14 Pick. 181; Greene v. Greene, 11 Pick. 410; Carter v. Carter, 6 Mass. 263. And see Harding v. Alden, 9 Greenl. 140. These adjudications were the foundation for the provisions in the Revised Statutes, c. 76, § 8-11. See Commission- er’s Report, part 2, p. 121. 2 Dorsey v. Dorsey, 7 Watts, 349; McDermott’s Appeal, 8 Watts & S. 251; Hollister v. Hollister, 6 Barr, 449. ® Clark v. Clark, 8 N. H. 21; Fellows v. Fellows, 8 N. H. 160; Frary v. Frary, 10 N. H. 61; Greenlaw v. Greenlaw, 12 N. H. 200; Batchelder v. Batchelder, 14 N. H. 380; Smith v. Smith, 12 N. IL. 80; Payson v. Payson, 84 N. H. 518. * Dorsey v. Dorsey, 7 Watts, 349. “ There is no question, that the courts here have no jurisdiction of marital duties abroad.” McDermott’s Appeal, 8 Watts & S. 251. [ 732] CHAP. XXXII.] AS EXERCISED BY THE COURTS. § 743 not require the person to have been thus subject; and a divorce was granted to a wife for an offence which the hus- band, after deserting her in New York, committed in another State where he was domiciled; she being then, and while the judicial proceedings were carried on, resident in New Hampshire. “Having lawfully come to reside here,” ob- served Parker, C. J., “she was entitled to the protection of our laws; and, a violation of the marriage covenant having subsequently occurred, she, as a legal inhabitant, may well appeal to those laws for redress.” In this case the marriage had been celebrated in New Hampshire, a fact which proba- bly did not influence the result. In another New Hampshire case, the same learned judge employed the following lan- guage: “ Whether it could have made any difference, had it been shown that the wife had no knowledge of the fact until after the husband removed into this State, we have not | considered. Should a husband, after committing adultery while domiciled in one State, where that furnished sufficient cause of divorce, remove with his wife into another State, where a similar law existed, before the fact was known to her, it would certainly present a case of hardship if she was, by such removal, precluded from availing herself of the fact in either State; but in which she would be entitled to apply, if in either, is a question of some difficulty, and one which - we need not discuss at the present time.” 2 . Ns 1 Frary v. Frary, 10 N. H. 61. ? Clark ». Clark, 8 N. H.21. On a libel for divorce from bed and board, Mr. Justice Wilde observed: “ Speaking individually, I should have no hesitation in saying, that a man may have two domicils in different States, or within separate jurisdictions, so as to be amenable to a process of this description in either. That aman may have two domicils for some purposes, although he can have but one for succession to personal property, is well settled in England and in other countries. Somerville v. Lord Somerville, 5 Ves. 750.” Greene v. Greene, 11 Pick. 410, 415. And see ante, § 724a. But be this as it may, there seems to be no foundation for the argument, that, because a man could have complained of a breach.of matrimonial duty in his domicil of yesterday, he cannot, having omitted to do so, complain of the same thing in his domicil of to- -day. 62 [ 733 ] § 744 THE AUTHORITY OVER DIVORCE. [Book VII. § 744. Now it may be useful to consider, that there is prob- ably not a single analogy in the law to sustain this New Hampshire and Pennsylvania rule. If the doctrine were, as it is not, that the lea loci delicti should govern,! then there would be the analogy of the criminal law. We have seen, that, in substance, the suit for divorce is a species of action of tort ;2 but who ever heard of a court refusing to sustain an action either of tort or of contract on the bare ground, that the parties, at the time of the injury or breach, were domiciled in another jurisdiction? Then, is the right of every govern- ment to determine the status of its own subjects? limited or controlled by any such exception? ‘We have seen, that a State is not bound to recognize at all the status of marriage in persons coming into it from other States and countries ; and so, when it does, it should take the status as subject to any imperfections resulting from wrongs already committed, and apply its own rules in determining what are such imper- fections.t Indeed every State must do so, or consequences of a very inconvenient as well as illogical nature will follow. To accept the foreign marriage, in persons coming from an- other domicil, and yield to it, adversely to the policy of our own law, a force beyond even what was accorded to it there, would be to carry the principle of comity so extremely erect as to give it a leaning the other way; while to import the foreign law of divorce would be to subvert our own. But what appears to be conclusive is, that the doctrine we are combating has not been received either in the other Ameri- can States generally, or in England or Scotland; though the question has seldom been made matier of direct judicial dis- cussion® 1 See ante, § 740. 2 Ante, § 300. - ® Ante, § 717 et seq. 4 Ante, § 146-150, 718, 719. ; 5 Lauder v. Vanghent, Ferg. 250, 3 Eng. Ec.414; Gordon v. Englegraaff, Ferg. 251, 3 Eng. Ec. 415; Scott v. Boutcher, Ferg. 252, 3 Eng. Ec. 416; Younge v. Cassa, Ferg. 255, 3 Eng. Ec. 417; Urquhart v. Flucker, Ferg. [734 ] ‘ CHAP. XXXII.] AS EXERCISED BY THE COURTS. § '744 b § 744 a. And in Pennsylvania the legislature has interfered, by providing, that “it shall be lawful for the said several courts to entertain jurisdiction of all causes of divorce from the bonds of matrimony, for the causes of desertion as afore- said, or adultery, notwithstanding the parties were, at the time of the occurrence of said causes, domiciled in any other State. Provided, That no such divorce shall be grant- ed, unless the applicant therefor shall be a citizen of this commonwealth, or shall have resided therein for the term of one year, as provided for by existing laws.” But the court has given this statute the strictest possible interpretation ; holding, that the words “any other State” refer only to another State of our American Union} § 7445. The absurdity of this New Hampshire and Penn- sylvania doctrine, that only in the country where the parties were domiciled at the time of the offence committed can the divorce for the offence be given; though one or both of them should afterward obtain, bond fide, a domicil in another country; appears also from some further considerations. If a married man, whose wife has committed an offence enti- tling him to a divorce, removes into another State or country, carrying with him his status of marriage, he should surely not be held to take a heavier burden of uncongenial status than he bore when he left his former home. In his former home, after the offence committed, he was simply a married man on condition subsequent, applying to his status a phrase familiar in the law of written instruments; that is, the mar- riage was to subsist or not, as afterward he should ask, or not, to have it annulled. If the courts of the new domicil under-: 259, 3 Eng. Ec. 420; Deane v. Deane, 12 Jur. 63; Collett v. Collett, 3 Curt. Ec. 726, 7 Eng. Ec. 563, 565; Tolen v. Tolen, 2 Blackf. 407; Schnau- fer v. Schnaufer, 4 La. Ann. 355; Fishli v. Fishli, 2 Litt. 337; Hare v. Hare, 10 Texas, 355; Hubbell v. Hubbell, 3 Wis. 662. The case of McNeil v. McNeil, 3 Edw. Ch. 550, turned entirely upon the construction of the stat- ute. See also Jarvis v. Jarvis, 3 Edw. Ch. 462; Stokes v. Stokes, 1 Misso. 324. : 1 Bishop v. Bishop, 6 Casey, 412, 416; Act of 26th April, 1850, § 5. [ 735 ] § 745 THE AUTHORITY OVER DIVORCE. [Book VII. take to make him, what he was not in the old, a married man unconditionally, they proceed in violation of the general law of their own country, in violation also of sound public policy, and in violation of private right and interest; because, ac- cording to their own general law, according to the dictates of the public policy adopted at home, and the broader public policy which controls the affairs of nations, according to the clamor of the private rights and interests of the injured party, whenever a sufficient delictum has occurred, as in this case a sufficient one has, the divorce should be decreed. § 744c. And suppose the delictum were not esteemed cause of divorce in the former domicil of the parties, still the policy of the law of the new domicil equally demands the divorce. In the place of the new domicil, the parties must either live together, or violate a rule of good order by living separately. If they live together, compelled thus to do by the law, they are not dealt with on an equality with the other citizens of the country; if they voluntarily live apart, they set an example not calculated to promote, in its influence, virtue in the community. Suppose the innocent party refuses to live with the guilty one, in consequence of the guilt, — the latter, thus guilty, may compel, if she be the ‘wife, the innocent to support her, and may likewise obtain from him a divorce, as for desertion. The foreign adultery, if adultery were her offence, could not be set up in bar of either the suit for necessaries or the suit for divorce; because, if a ‘divorce could not be given to the husband on the ground of this adultery, as being a matter beyond the cognizance of the courts, equally could neither the wife’s divorce suit for deser- tion, nor the third person’s suit for necessaries furnished her, be barred by this adultery, thus existing as a thing beyond the cognizance of the courts. And these are merely specimens of the absurdities to which the absurd doctrine under considera- tion must lead. § 745. Fifthly. It is immaterial to this question of jurisdic- tion, in what country, or under what system of divorce laws, [ 736 ] CHAP. XXXII] AS EXERCISED BY THE COURTS. § 7416 the marriage was celebrated. This is undisputed doctrine in the English tribunals, when they are called upon to adminis- ter the remedy of a separation a mensé et thoro, — the only kind of divorce from a valid marriage, which, previous to the year 1858, they were invested with the authority to grant.1 But it has been said to be also law in the English courts, that, since they could not dissolve a vinculo any marriage, foreign or domestic, they would under no circumstances recog- nize the validity of any foreign sentence, dissolving a mar- riage celebrated in England. Yet when we look into the authorities we find doubts arise, whether such is in fact the law of England. § 746. It is the immemorial usage of the Scotch courts, as already mentioned,? to decree divorces between parties pres- ent. in Scotland, though domiciled in England or elsewhere abroad, for any offence sufficient by the Scotch law; if only, “as a general rule, the tribunal has a mere temporary jurisdic- tion over the parties, and process is served on the defender. And so it happened in one instance, that, after a divoree:a vinculo had been rendered in Scotland between English sub- jects, still domiciled in England, in which country also the marriage had been celebrated; and after the husband had entered into a second marriage; he was indicted at home for polygamy, and, in answer to the indictment he set up the Scotch divorce. But he was convicted. “The judges,” in the words of the brief report we have of the proceeding, “ held the conviction right; being unanimously of opinion, that no: sentence or act of any foreign country or State could dissolve an English marriage a vinculo matrimonii, for ground on which it was not liable to be dissolved, a vinculo matrimonii,. 1 Sinclair v. Sinclair, 1 Hag. Con. 294, 4 Eng. Ec. 412, 413. It has been intimated, however, that divorces a mensd@ do not stand on the same’ footing in this respect as divorces a vinculo. See Greene v. Greene, 11 Pick. 410. . _ 7 Ante, § 724, 724.4. 62* [ 737 ] § 747 THE AUTHORITY OVER DIVORCE. [Book VII. in England.”! This case, often cited, and familiarly known as Lolley’s case, is the sole foundation for the opinion, that the English law cannot acknowledge, as valid, any dissolu- tion in a foreign country of an English marriage. But it is seen, that the facts in issue in this Lolley’s case furnished no basis for such an adjudication; and that, if words covering the point were employed by the judges, they are necessarily ‘mere dicta. The point could not arise.2 Besides, the rule is familiar, that the language of judges must be construed with reference to the facts they are discussing; a rule which should never be lost sight of, if we would avoid endless confusion, contradiction, nonsense® And Lord Brougham has since observed of this case: “ Though the ‘decision was not put upon any special circumstance, yet, in fairly considering its applications, we cannot lay out of view, that the parties were not only married, but really domiciled, in England; and had resorted to Scotland for the manifest purpose of obtaining a temporary and fictitious domicil there, in order to give the Scotch courts jurisdiction over them, and enable them to dis- solve their marriage.” 4 § 747. The next case after Lolley’s was that of McCarthy v. Decaix, before the Court of Chancery; and, in this case, ac- cording to the reports we have of it, the question we are dis- cussing did arise. The marriage had been celebrated in Eng- land; the husband being a Dane by birth, fortune, and domi- _ 7 Rex v. Lolley, Russ. & Ry. 237, 2 Cl. & F. 567, note, a. p. 1812. Lord Brougham, who was counsel for the prisoner, stated the next year before the House of Lords, while arguing as counsel the case of Tovey v. Lind- say, 1 Dow. 117, 127, that he had a note of Lolley’s case, taken by himself at the time the judgment was delivered; as follows, that the judges “ were unanimously of opinion upon the points reserved, that a marriage sol- emnized in England was indissoluble by any thing except an act of the legislature.” ' * See the observations of Lord Bannatyne in Duntze v. Levett, Ferg. 403, 3 Eng. Ec. 506. 3 And see ante, § 15. * Warrender v. Warrender, 2 Cl. & F. 488, 541. [738 ] CHAP. XXXII.] AS EXERCISED BY THE COURTS. § 748 cil; and the wife an English woman. The parties afterward removed to Denmark, where they were domiciled and di- vorced; and the point presented was, whether the Danish di- vorce dissolved the marriage, so as to affect, as against her representatives, property rights in England; to which country she had returned after the divorce, and had died there. Lord Eldon hesitated; and said he would not take it as settled by Lolley’s case, that the marriage was not, even for English pur- poses, ended by the Danish divorce. But Lord Brougham, who, before the cause was finally disposed of, succeeded to the great seal, held, — on the sole authority of Lolley’s case, and without adverting to the difference we are considering in the facts, — that the Danish divorce must be viewed as in- effectual to dissolve the marriage Yet the weight of this decision, as bearing upon the point adjudged, is more than taken away by the subsequent observations of the same learned judge in the House of Lords, sitting as a court of Appeal from Scotland, in Warrender v. Warrender, to which case we shall presently refer? § 748. After the decision in McCarthy v. Decaix, during the same year, the case of Conway v. Beazley came before the Consistory Court of London. It was a cause of nullity, promoted by a woman who in Scotland had entered into matrimony with a man divorced there from an English mar- riage, while both parties to the divorce remained domiciled in England. Dr. Lushington held the Scotch sentence null, and so the second marriage void. “My judgment, how- ever,” he observed, “must not be construed to go one step beyond the present case; nor in any manner to touch the case of a divorce pronounced in Scotland between parties who, though married when domiciled in England, were, at the time of such divorce, bond fide domiciled in Scotland; 1 McCarthy v. Decaix, 2 Russ. & Myl. 614, 2 Cl. & F. 568, note, 3 Hay. Ec. 642, note, 5 Eng. Ee. 244, a. p. 1831. ? Warrender v. Warrender, 2 Cl. & F. 488; ante, § 720; post, § 750, 755, 756 [739 ] § 749 THE AUTHORITY OVER DIVORCE. [BOOK vil. still less between parties who were only on a casual visit in England at the time of their marriage, but were then, and at the time of the divorce, bond fide domiciled in Scotland.” And he considered Lolley’s case to have settled the question no further than as concerns persons domiciled in Engand at the time of the Scotch divorce. It did not establish, as a universal rule, that an English matriage could not be dis- solved judicially in Scotland. “Before I could give my consent to such a doctrine,” he said, “ (not meaning to deny that it may be true), I must have a decision, after argument, upon such a case as I will now suppose; namely, a marriage in England, the parties resorting to a foreign country, becoming actually, bond fide, domiciled in that country, and then separated by a sentence of divorce pro- nounced by the competent tribunal of that country. If a case of that description had occurred, and had received the decision of the twelve judges, or the other high authority to which allusion has been made, then indeed it might have set this important matter at rest; but I am not aware, that that point has ever been distinctly raised, and I think I may say with certainty, that it never has received any express de- cision.” 1 § 749. Besides the foregoing cases, are two others, which came before the House of Lords on appeal from Scotland. The first is Tovey v. Lindsay; it was argued in 1813, the next year after Lolley’s case was decided. The husband was originally a Scotchman, and the wife an English woman; but the marriage was celebrated under the English law, at Gib- raltar; and the parties were afterward domiciled in England, where a separation by deed took place. After this separation, the husband brought, in the Scotch court, his suit for divorce, on the ground of his wife’s adultery; she objected to the ju- risdiction, but her objection was overruled, and she appealed to the House of Lords. It appeared before the latter tribunal, 1 Conway v. Beazley, 8 Hag. Ec. 639, 5 Eng, Ec. 242. A note of Mc- Carthy v. Decaix was read by counsel in the argument of this cause. [740] CHAP. XXXII.] AS EXERCISED BY THE COURTS. § 750 that probably his domicil still remained in England ; but, be- cause there was doubt upon this and other questions of fact, and because the case seemed not to have been carefully and accurately considered in the court below, the Lords remitted it back, for the Scotch court to review its own decision, and to present all the points for a final adjudication. No real light upon the main question was elicited, though there was some general discussion. Before any thing further was done, Lindsay died; and so the suit ended.? § 750. The remaining case is Warrender v. Warrender, which terminated in 1835, subsequently to all the cases before mentioned. The husband was a Scotchman, married in Eng- land to an English woman. After the marriage, the parties were domiciled in Scotland; then they lived, were perhaps domiciled also, in England, where a separation by deed took place; then the husband returned to and was domiciled in Scotland, while she went and resided abroad. In this state of things he brought a suit, in the proper Scotch court, against her for divorce; she appeared and objected to the jurisdiction; the Scotch tribunal overruled her objection, and, on appeal to the House of Lords, its decision was affirmed. This case is conclusive as to the Scotch law, but not as to the English; for the Lords proceeded on the doctrine, that, sitting as a court of appeal from Scotland, they must decide according to the law of Scotland; and it clearly appeared, that, viewed in this way, the judgment below was correct.3 Yet it is seen, that this decision does not absolutely conclude any thing, even for Scotland, in respect to cases where the parties at the time of the divorce suit are domiciled in England. ' Still if the Scotch law is to be applied, there may be difficulty in saying, that the right to decree divorces in such circumstances is not es- tablished by an exceedingly formidable array of domestic adjudication, embracing decisions of the highest domestic 1 Tovey v. Lindsay, 1 Dow. 117. 2 Lord Lyndhurst, in Warrender v. Warrender, 2 Cl. & F. 488, 565. * Warrender v. Warrender, 2 Cl. & F. 488. [741] § 752. THE AUTHORITY OVER DIVORCE. [BooK VII. tribunal, acquiesced in from time immemorial; though, on the other hand, these decisions have not been given with the unanimous assent of the Scotch judges.! § 751. But if the House of Lords, as the common court of appeal from both England and Scotland, is to decide upon this subject in one way when the question comes from Scot- land, in another way, when it comes from England, then the picture drawn by Lord Lyndhurst is one of life and reality. “Tt must be admitted,” he said, “ that the legal principles and decisions of England and Scotland stand in strange and anomalous conflict on this important subject. As the laws of both now stand, it would appear that Sir George War- render may have two wives; for, having been divorced in Scotland, he may again marry in that country; he may live with one wife in Scotland most lawfully, and with the other equally lawfully in England; but only bring him across the border, his English wife may proceed against him in the English courts either for restitution of conjugal rights, or for adultery committed against the duties and obligations of the marriage solemnized in England; again, send him to Scot- land, and his Scotch wife may proceed, in the courts in Scot- land, for breach of the marriage contract entered into with her in that country.” 2 § 752. Yet surely his lordship need have entertained no em- barrassing apprehensions in the matter. Sir George Warren- der’s plain legal duty was to follow up the course which lies at all times open to every lover of oriental customs. Such a one may marry in England; get divorced in Scotland; and, in the latter country, contract a second marriage. Having done so, he should so construct his dwelling as to have two opposite wings for his respective wives, locating it where the line between the two countries will divide them. He should put the Scotch wife 1 Ante, § 722. 2 Warrender v. Warrender, 2 Cl. & F. 488, 560. [742] CHAP. XXXII.] AS EXERCISED BY THE COURTS. § 753 on the Scotch side, and the English wife on the English side ; and, if the principles we are examining are adhered to, he will, in both countries, be alike a good citizen and a good Chris- tian; so pronounced by one common superior tribunal. True indeed, if his wives, better skilled in household duties than in legal lore, should chance to interchange places but for a day, he would at once be transformed into a felon in both countries, pursued by the authorities of both, under the approval of one ultimate tribunal. This little inconvénience he should avoid by marrying intelligent women; who would be prompted to aid him in the discharge of his onerous legal, moral, and social duties, by their natural desire for the legiti- macy of their offspring. § 753. The reason assigned why an English marriage can- not for English purposes be dissolved by the tribunals of the country in which the parties are afterward domiciled, is, that, since by the law of England as it existed when this reason was given, no judicial dissolution of the marriage could be allowed, the parties must be presumed to have agreed, when contracting matrimony, never to be separated by any judicial authority. Judge Story has thus summed up the reasoning on this side of the question: “The law of the place where the marriage is celebrated, furnishes a just rule for the inter- pretation of its obligations and rights, as it does in the case of other contracts, which are held obligatory according to the lea loci contractus. It is not just, that one party should be able at his option to dissolve a contract by a law different from that under which it was formed, and by which the other party understood it to be governed. If any | other rule than the lex loci contractus is adopted, the law ‘of marriage, on which the happiness of society so mainly depends, must be completely loose and unsettled; and the marriage state, whose indissolubility is so much favored by Christianity, and by the best interests of society, will become subject to the mere will, and almost to the caprice, of the parties, as to its duration. The courts of the nations whose laws are most lax on this subject, will be constantly resorted to for the [ 743 ] § 755 THE AUTHORITY OYER DIVORCE. [Book vit. purpose of procuring divorces; and thus, not only frauds will be encouraged, but the common cause of morality and religion be seriously injured, and conjugal virtue and pa- rental affection become corrupted and debased. Thus, a dissatisfied party might resort to one foreign country, where incompatibility of temper is a ground of divorce; or to another, which admits of divorce upon even more frivolous pretences, or upon the mere consent of both, or even of one, of the parties. § 754. “In this manner a nation may find its own inhabi- tants throwing off all obedience to its own laws and institu- tions, and subverting, by the interposition of a foreign tribu- nal, its own fundamental policy. Nay,a stronger case may be put, of a marriage, deemed, as a sacrament, indissoluble by the public religion of a nation, which is yet dissolved at the will of a foreign nation, in violation of the highest of all human duties, a perfect obedience to the Divine law. There is no solid ground wpon which any government can be held to yield up its own fundamental laws and policy, as to its own subjects, in favor of the laws or acts of other countries. Parties contracting in a country where marriage is indissolu- ble, voluntarily submit to the jurisdiction and laws of that country, if they are foreigners domiciled there. If they are natural subjects, they are bound by the laws of the country in virtue of the general duty of allegiance. Why then should England permit her subjects, by a foreign domicil, to escape from the indissolubility of a marriage contracted in England, and thus permit them to defeat a fundamental policy of the realm?” 1 § 755. But though the case of Warrender v. Warrender? decided, as we have seen, nothing concerning the English law, yet observations were made in it, particularly by Lord » Story Confl. Laws, § 225, 226. * Warrender v. Warrender, 2 Cl. & F. 488. [744 ] CHAP. XXXII. ] AS EXERCISED BY THE COURTS. § 755 Brougham, going far to shake the position, that the lex loci contractus would be held to govern, even in England; and they are conclusive, in principle, against this position. Hav- ing adverted to the doctrine which holds the validity of the marriage to depend on the law of the country of its solemni- zation, this learned person continued: “ But it is said, that what is called the essence of the contract must also be judged of according to the lex loci; and, as this is a somewhat vague, and for its vagueness a somewhat suspicious, proposi- tion, it is rendered more certain by adding, that dissolubility or indissolubility is of the essence of the contract. Now I take this to be really petitio principii. It is putting the very question under discussion into another form of words, and giving the answer in one way. ‘There are many other things which may just as well be reckoned of the essence as this. If it is said, that parties marrying in England must be taken, all the world over, to have bound themselves to live until death or an Act of Parliament ‘them do part,’ — why shall it not also be said, that they have bound themselves to live together on such terms, and with such mutual personal rights and duties, as the English law recognizes and enforces ? Those rights and duties are just as much of the essence as dissolubility or indissolubility ; and yet all admit, all must admit, that persons married in England and settled in Scot- land will be entitled only to the personal rights which the Scotch law sanctions, and will only be liable to perform the duties which the Scotch law imposes. Indeed if we are to regard the nature of the contract in this respect as defined by the lex loci, it is difficult to see why we may not import from Turkey, into England, a marriage of such a nature as that it is capable of being followed by, and subsisting with, an- other; polygamy being there of the essence of the contract. The fallacy of the argument, ‘that indissolubility is of* the essence, appears plainly to be this: it confounds incidents with essence; it makes the rights under a contract, or flowing from and arising out of it, parcel of the contract; it makes the mode in which judicatures deal with those rights, and with the contract itself, part of the contract; instead of consider- 63 [ 745 ] § 756 THE AUTHORITY OVER DIVORCE. [Book VII. ing, as in all soundness of principle we ought, that the con- tract, and all its incidents, and the rights of the parties to it, and the wrongs committed by them respecting it, must be dealt with by the eourts of the country where the parties reside, and where the contract is to be carried into execution. § 756. “But,” continued he, “at all events this is clear, and it seems decisive of the point, that, if, on some such ground as this, a marriage indissoluble by the lex loci is to be held indissoluble everywhere ; so, conversely, a marriage dissoluble by the lex loci must be held everywhere dissoluble. ‘I'he one proposition is in truth identical with the other. Now, it would follow from hence, or rather it is the same proposition, that a marriage contracted in Scotland, where it is dissoluble by reason of adultery or of non-adherence, is dissoluble in England, and that at the suit of either party. Therefore a wife married in Scotland might sue her husband in our courts for adultery or for absenting himself four years, and ought to obtain a divorce a vineulo matrimonii. Nay, if the marriage had been solemnized in Prussia, either party might obtain a divorce on the ground of incompatibility of temper; and, if it had been solemnized in France during the earlier period of the revolution, the mere consent of the parties ought to suffice for dissolving it here. Indeed another consequence would follow from this doctrine of confounding, with the na- ture of the contract, that which is only a matter touching the jurisdiction of the courts, and their power of dealing with the rights and duties of the parties to it, —if there were a country in which marriage could be dissolved without any judicial proceeding at all, merely by the parties agreeing in pais to separate, every other country ought to sanction a separation had in pats there, and uphold a second marriage contracted after such a separation. It may safely be asserted, that so 1« Tf” it was remarked in a Scotch case, “all who marry in any other country must bring home, when they return to Scotland, the laws of divorce from each place of celebration, as essential qualities of their conjugal rela- tion, we must, instead of one rule, have all the incongruous regulations of [746 ] CHAP. XXXII.] AS EXERCISED BY THE COURTS. § 757 absurd a proposition never could for a moment be enter- tained ; and yet it is not like, but identical with, the proposi- tion upon which the main body of the appellant’s argument rests, that the question of indissoluble or dissoluble must be decided in all cases by the lex loci.”} § 757. Assuming marriage to be every way a contract, ‘even then it is difficult to sustain the conclusion, that, there- fore, if it is indissoluble under'‘the municipal law of the place where it is entered into, it must be so everywhere else and forever. One of the properties inherent in an ordinary con- tract is, that those who are interested in it may mutually abrogate it at pleasure; and, if this seems not to be so in respect to marriage, it is because the community wherein the married persons dwell is a party interested;? but the interest of the particular community ceases, and a new one attaches, when they remove into a new jurisdiction. When they have left the country where the contract was originally made, the dex loci contractus, which cannot go with them, does not restrain them from mutually discharging it; yet the doctrine would be a novel one, that the consent of the defendant could, under any such circumstances, affect the plaintiff’s right to a divorcee. Moreover, as between themselves, since they can consent to annul the contract, they can consent to place it under the control of the laws of a new domicil; which they do upon their change of residence. Therefore, in an Ameri- ean court it was observed: “The laws of a country where a marriage is contracted form no part of the contract of mar- the rest of the world on the subject of divorce, established in the municipal law of Scotland, as to individuals, or as to classes of our countrymen or fel- low-citizens. The inconveniences of so unpleasant a situation must be en- dured, too, according to this hypothesis, for the sake of foreign systems, with which these very parties have no longer the slightest connection, and which can derive no possible benefit from our preference.” Edmonstone v. Lock- hart, Ferg. 168, 193, 3 Eng. Ec. 389, 397. 2 Warrender v. Warrender, 2 Cl. & F. 488, 532, 9 Bligh, 89. 2 Ante, § 297, 300. [747] § 757 THE AUTHORITY OVER DIVORCE. [BOOK VIL riage. By a contract, always implied, between the govern- ment and the community, each member agrees to submit to laws made for the whole, and the husband and wife are as much bound by this implied contract as each individual is. If they elect to abandon France, their native country, and to take up their residence in Missouri, they thereby enter into an implied contract with the State of Missouri, that the property, left undisposed of on the death of one of the parties, shall be disposed of agreeably to the general law of the land. It would be as unreasonable for such persons to introduce the laws of France here to regulate the descent and distribution of their property, as for a native of France, who had aban- doned his country at the age of maturity, when the implied contract between him and his country was in full vigor, to bring along with him the laws of France to be tried under, if it should ever so happen that he committed murder within the jurisdiction of Missouri. The argument derived from the indissolubility of the marriage contract by the mere act of the parties has as little weight in it.”} 1 Tompkins, J., in The State v. Fry, 4 Misso. 120, 198. A learned Scotch judge has observed: “By marrying in England, parties do not be- come bound to reside for ever in England, or to treat one another in every other country where they may reside according to the provision of the law of England. Their obligation is to fulfil the duties of husband and wife to each other, in whatsoever country they may be called to in the course of providenge ; and they neither promise, nor have power to engage, that they shall carry the law of England along with them, to regulate what the duties and powers are which they shall fulfil and exercise, or the redress which the violation of those duties, or abuse of those powers, may entitle to. All of these functions belong to the law of the country where they may even- tually reside, and to which they unquestionably contract the duties of obe- dience and subjection whenever they enter its territories. And, further, this supposed condition, even if it had the will of the parties in favor of it by any stipulation, however express, could derive no force from that circum- stance. It is too obvious to admit of doubt, that no quality can be created in the relation of husband and wife by positive or implied agreement. The Commissaries certainly would not dismiss an action of divorce because the parties, at intermarrying, had in the most formal manner renounced the benefit of it, and become bound that their marriage should be indissoluble. [748] CHAP. XXXII.] AS EXERCISED BY THE COURTS. § 758 a § 758. We have seen, however, that marriage, truly viewed, is not a contract, but a status; that it bears indeed somewhat of resemblance to a contract, merely from the fact of the gov- ernment never imposing it upon any who do not mutually choose to assume it, the choice being expressed by what is called an agreement of present marriage; but that, when the status is once assumed, the contract has exhausted itself, is merged, no longer exists... From this principle therefore it necessarily results, that the status is continually subject to the law of the domicil; by which law it may be from time to time modified or annulled, without reference at all to the law of the place of the exhausted contract. Indeed, if English parties are married at home, and remove to this country, they are recognized here as husband and wife by virtue, not of the English law, but of our own law; for the law of a foreign country cannot have force here? And, said Lord Glenlee, “we give the remedy of divorce for adultery, because the par- ties are husband and wife, and not with relation to the con- stitution of the marriage.” 8 § 758 a. The sovereignty of every government within its own dominions is necessarily full, and exclusive of all other sovereignty. And when parties go into a country, they can- not claim, if disposed to claim, any better standing before the law than citizens have, who were born in the country. Sup- Nor would it be any objection to a divorce, at the instance of a Roman Catholic, that his marriage was to him a sacrament, and therefore, by its own nature, indissoluble. These are all pacta privatorum, and cannot im- pede or embarrass the steady, uniform course of the jus publicum, which, » with regard to the rights and obligations of individuals affected by the three great domestic relations, enacts them from motives of political expediency and public morality, and nowise confers them as private benefits resulting from agreements concerning meum et tuum, which are capable of being modified and renounced at pleasure.” Opinion of Mr. Commissary Ross, Ferg. 359, 3 Eng. Ec. 480. 1 Ante, § 29-42. ? Story Confl. Laws, § 23. And see ante, § 146, 148, 718. 2 Ferg. 405, 3 Eng. Ec. 507. 63* [749 ] § 758 ¢ THE AUTHORITY OVER DIVORCE. [Book vit. pose an ordinary contract to have been made between them out of the country, the courts of the new locality will not en- force it, if repugnant to the policy of their-own law. When indeed it is not repugnant, they will enforce it; and they will look to the law of the place where it was made to settle the questions of its interpretation, and of its having been so entered into in point of form as to be deemed a contract at all. For example, if a man in the United States should have given another a promissory note, written on unstamped paper, and then the parties should have removed to England, they would there find their contract to be sacred and enforceable in the tribunals, though such a note given in England would be void for the want of a stamp. But if one of them had agreed to sustain the status of slave to the other, even in a State, if such a State there is, whose laws would acknowledge the agreement to be binding; and the two had removed to Eng- land, English law would not enforce the agreement. The reason of the distinction is, that the one contract accords with the policy and spirit of the English law, though not made in English form, while the other is repugnant to them. § 758 6. The propositions of the last section are conclusive of the right of the tribunals of every country to dissolve mar- riages celebrated abroad, without reference to the foreign law of divorce, whether marriage be deemed a contract or a status. For surely neither contract nor status, established abroad,’ can override the domestic law, without putting the domestic forum into foreign chains. § 758 c. But if marriage is to be deemed, as in every tri- bunal on earth it is deemed, a thing of international law, then the courts of every country must hold the citizens of a foreign country to be married or single, according as they are held to be the one or the other in the country of their domicil. And for our tribunals to make an exception to this proposi- tion, and say they will not follow it in cases of marriage originally celebrated in our country, is to make the attempt, futile and vain and arrogant and absurd, to enforce our own [ 750 ] CHAP. XXXII] AS EXERCISED BY THE COURTS. § 759 law upon a foreign country, when we should spurn the at- tempt of the same country to enforce its law on us. But suppose the parties were once citizens of our own country, — should not their allegiance to us be perpetual, and, if per- petual, does not the result follow, that we cannot recognize the foreign divorce? Not at all; for, even were we to hold to perpetual allegiance, the allegiance is a personal service due to the government, not a matter of status. Yet again, suppose the divorced person becomes, after the divorce, once more a citizen of our country, — are we not then to inquire, whether the former husband or wife has received the release of our own tribunals, from the marital contract entered into here? Certainly not; because we should violate all rules of law to hold a man to be either unmarried, or to be the husband of a particular woman, the moment before he changes his demicil, and to hold him to be the husband of another woman the moment after. § 759. Yet Gibson, C. J., in a Pennsylvania case, said, that the indissolubility of an English marriage by a foreign sentence is “an unavoidable consequence of the British tenet of perpetual allegiance.” He added: “ Though an English subject acquire a foreign character from a foreign domicil, insomuch as to be treated as an alien for commercial pur- poses; though he formally renounce his primitive allegiance, and profess another; he is accounted but a sojourner while abroad, and England, by the dogma of her government, is his home and his country still. Holding this dogma, it would be strange did she tolerate foreign interference with his do- mestic relations within her pale. Insisting on jurisdiction of his person, absent or present, she necessarily regards an attempt to change any one of these as an invasion of her sovereignty; and in that respect it cannot be denied, that the matter is within her province and her power; for, though the status of marriage is juris gentium, the institution is undoubt- edly a subject of municipal regulation. And it is this per- petual allegiance to the country, its institutions, and its laws, not an indissolubility of the marriage from the presumption, [751 ] § 760 THE AUTHORITY OVER DIVORCE. [Book VII. will, and reservation of the parties, which is the root of the English doctrine.”! Upon this view of the matter Hosack, in his Treatise on the Conflict of Laws of England and Scotland, has remarked: “The theory of applying to this case the English doctrine of perpetual allegiance is clearly erroneous. If it were correct, it would apply with equal force to marriages contracted by English minors, who could not, by repairing to Scotland, shake off the disabilities imposed upon them by the English law; and yet such marriages are held valid in England to all intents and purposes. The prin- ciple of allegiance here referred to applies to the immediate political relationship between the sovereign and the subject ; -and it seems to be a total misapprehension to suppose that it interferes in any way with questions of purely municipal law, unconnected with that point. The doctrine of the indissolubility of marriage, so far as it exists in England, is unquestionably derived from the canons of the Roman Church.” 2 § 760. But the discussions under this head are rather matter of curiosity than of practical utility to the American reader; since, whatever doubts may exist in England, the clear and settled doctrine in the United States holds the place of marriage to be altogether immaterial to the right of the courts to take jurisdiction over causes of divorce, or to the validity of the decree which dissolves the marriage? " Dorsey v. Dorsey, 7 Watts, 349, 351. 2 Hosack Confl. Laws, 265, note. ® Dorsey v. Dorsey, 7 Watts, 349; Tolen v. Tolen, 2 Blackf. 407; Clark v. Clark, 8 N. H. 21; Barber v. Root, 10 Mass. 260; Harteau v. Harteau, 14 Pick. 181; White v. White, 5 N. H. 476; Harrison v. Harrison, 19 Ala. 499; Thompson v. The State, 28 Ala. 12. It has, moreover, always been customary in this country to take jurisdiction in divorce suits without any reference to the country where the marriage was contracted; and this right has not been questioned. The following cases are illustrative : Langstaff v. Langstaff, Wright, 148; Maguire v. Maguire, 7 Dana, 181; Hesler v. Hesler, Wright, 210; Hansel v. Hansel, Wright, 212; Guembell v. Guembell, Wright, 226. There is however a South Carolina case, in [752] CHAP. XXXII.] AS EXERCISED BY THE COURTS. § 761 Lolley’s case, whatever it establishes for England, is of a date too recent (1812) to have the force of authority here. And but for what has been said about this Lolley’s case, since it was decided, we should be unable to draw from the brief reports we have of it any such doctrine as it has been assumed to contain. Suppose the judges did utter the words attributed to them in this case, they were words not called out by the facts; the facts only showing a divorce without a domicil. And if all the foolish talk which has been made by wise judges while pronouncing their decisions, and transferred to the books of reports, were held to be law, our law would present a chaos wilder and more confounded than ever poet pictured, as having brooded over and dwelt in our earth, before God said, “ Let there be light.” § 761. Sixthly. The doctrines thus laid down in this chap- ter are not controlled by the provision in the United States Constitution against laws passed by the States impairing the obligation of contracts.1 This proposition clearly results from viewing marriage, not as a contract, but asa status. And aside from this view, it was well observed by the late Chief Justice Marshall, that “this provision of the Con- stitution never has been understood to embrace other con- tracts than those which respect property, or some object of value, and confer rights which may be asserted in a court of justice. It never has been understood to restrict the general which Dunkin, C., said: “In reference to a South Carolina marriage,” no divorces being ever allowed in South Carolina, ante, § 288, “it has been often repeated, although never formally decided, that the doctrine of Lolley’s case is the law of this State. . . . . The argument seems irresistible, that, in such cases, the lex loci contractus, the law of the place where the marriage is celebrated, furnishes the just rule for interpretation of its obli- gations and rights, as it does in the case of other contracts. It can only be dissolved by the law under which it was formed, and by which both par- ties understood it to be governed.” Hull v. Hull, 2 Strob. Eq. 174, 177, 178. And the same point has been since substantially adjudged in this State. Duke v. Fulmer, 5 Rich. Eq. 121. See also Wells. v. Thompson, 13 Ala. 793. And see Harman v. Harman, 1 Cal. 215. 2 See post, § 771. [ 753 ] § 761 a AUTHORITY OVER DIVORCE. [BooK VII. right of the legislature to legislate on the subject of divorces. Those acts enable some tribunal, not to impair a marriage contract, but to liberate one of the parties because it has been broken by the other. When any State legislature,” he adds, “shall pass an act annulling all marriage contracts, or allowing either party to annul them without the consent of the other, it will be time enough to inquire, whether such an act be con- situtional.” And in the same case from which these observa- tions are taken, Judge Story says: “ A general law regulat- ing divorces from the contract of marriage, like a law regulat- ing remedies in other cases of breaches of contracts, is not necessarily a law impairing the obligation of such a contract. Tt may be the only effectual mode of enforcing the obliga- tions of the contract, on both sides. A law punishing a breach of a contract by imposing a forfeiture of the rights acquired under it, or dissolving it because the mutual obliga- tions were no longer observed, is in no correct sense a law impairing the obligations of the contract.”1 And this gen- eral view has received the sanction of other judicial authority. The more solid opinion appears to be, that marriage is not included at all in this constitutional provision.2. But this question, in another aspect, will come under review in the next chapter. III. Divorces from Bed and Board, and Alimony. § 761 a. The foregoing doctrines apply particularly to divorces from the bond of matrimony. Concerning divorces from bed and board, let it be observed, they rest in a great degree on different reasons, they are governed somewhat therefore by different principles. * Dartmouth College v. Woodward, 4 Wheat. 518, 629, 695. * Tolen v. Tolen, 2 Blackf. 407; Maguire v. Maguire, 7 Dana, 181; Ber- thelemy v. Johnson, 3 B. Monr. 90 ; Opinion of the S. J. Court of Maine, 16 Maine, 481; Starr v. Pease, 8 Conn. 541; Jones v. Jones, 2 Overt. 2; Bingham v. Miller, 17 Ohio, 445, 447; Levins v. Sleator, 2 Greene, Iowa, 604; Noel v. Ewing, 9 Ind. 37; post, § 771 et seq. [ 754 ] CHAP, XXXII] AS EXERCISED BY THE COURTS. § 762 § 762. We have already seen,! that, while the English courts appear to entertain some unsound notions concerning the indissolubility, by a foreign sentence, of an English mar- riage, they deem the divorce a mensé et thoro to be grantable by themselves, wherever the marriage was celebrated. A for- tiori, this is the American doctrine. On the point of the authority to take jurisdiction when the defendant is domiciled in a foreign country, and so the citation cannot be served on him personally, — though the authority exists in respect of divorces dissolving the marriage, probably the rule is other- wise where the divorce sought is from bed and board. For, in the first place, the latter divorce from an absent party would do the applicant no good, unless by way of suing on the decree in the foreign country, to recover the alimony ordered. In the foreign country also, the decree could have no operation, only as a foundation for such a suit, the whole effect of which suit is to collect money; and, if no jurisdiction of the defendant was had, sufficient to sustain a judgment in a suit on an ordinary contract, probably the foreign tribunals would refuse to give this judgment any effect whatever. And probably this would even be so as between the States of this Union; notwithstanding the pro- vision, in the United States constitution, about the judgments of the courts of the States having a binding effect in States other than those in which they were rendered.2 In the next place, the divorce a mensd et thoro appears properly to deter- mine no question of status, the parties being married parties after the divorce the same as before; so the government has no sufficient interest in this suit, under these circumstances, to sustain it in opposition to general principles, as to jurisdic- tion between parties. Even the question of the legiti- macy of the children, which is primé facie affected by a divorce of this kind, seems not to be important here ; for the fact of the husband residing abroad would alone be practically 1 Ante, § 745 and note. * And see ante, § 739; post, § 798. [755 J § 763 THE AUTHORITY OVER DIVORCE. [Book VII. the same in the courts, on this question, as a divorce from bed and board. § 763. But the suggestions of the last section are based principally on the mere reason of the thing; for adjudication has shed little light on the matter. Yet suppose, in a case where both the parties reside in the same country, a divorce from bed and board is regularly pronounced, on due contesta- tion, in the proper court of their domicil, the defendant appearing and answering to the suit, and afterward they remove to another State or country, — there is room for doubt, what precise effect even this divorce will have in the latter locality. And so in respect to the decree for alimony; espe- cially upon such a divorce. If the tribunals of the new domi- cil can take notice of even any part of the foreign decree, as perhaps they can of the whole of it, in what form of proceed- ing is this to be done? Such an adjudication has, in the court where it was rendered, no more than a sort of interloc- utory force;— but how, in, for example, one of the United States, under the provisions of the national Constitution, assuming them to apply to the case, is a decree for divorce from bed and board and alimony, rendered in a sister State, to be carried into effect? It seems to have been assumed, that it may be, in some way.! And ina late Alabama case, the doctrine was laid. down, that a decree of alimony without divorce, pronounced in South Carolina, could be enforced in Alabama, for what was due, extending to the time a divorce was declared in Alabama; not beyond? Like- wise in Kentucky, where a husband had obtained in the courts a divorce a vinculo from his wife, and afterward both parties became citizens of Ohio, and the Ohio tribunal had given her, in a suit which the man defended, a portion of his estate under the name of alimony, it was held, that the Ken- 1 Borden v. Fitch, 15 Johns. 121. * Harrison v. Harrison, 20 Ala. 629. [756] OHAP. XXXIL] AS EXERCISED BY THE COURTS. § 765 tucky courts could enforce this decree! But this decree, the reader perceives, is a thing quite different from a decree of alimony proper. On the other hand, the Wisconsin court decided, that an action of debt will not lie upon a decree of divorce from bed and board and for alimony, duly entered up in another State; and the court proceeded further to an- nounce the general doctrine, that the tribunal rendering the decree could alone, in its own jurisdiction, compel its per- formance ; it not being enforceable in a sister State.2.- Whether the courts of the new domicil can entertain an original suit for separation, founded on the foreign decree, is a question not yet judicially discussed. In a recent Scotch case it was held, and confirmed on appeal by the House of Lords, that a di- vorce from bed and board in England, obtained by the wife for the husband’s adultery, was no bar to her proceeding in Scotland for a divorce from the bond of matrimony on account of the same adultery.? IV. Jurisdiction under particular Statutes. § 764. The foregoing sections of this chapter contain ex- positions of some points belonging under the present subtitle. They likewise contain expositions of those general doctrines found most frequently applicable in interpreting the statutes. Some points, however, remain for discussion here. § 765. Where a statute made it necessary for the plaintiff to be an inhabitant of the State at the time of bringing his bill for divorce, the residence mentioned was construed to be a bond fide one, not a residence temporarily taken for the pur- 1 Rogers v. Rogers, 15 B. Monr. 364. 2 Barber v. Barber, 1 Chand. 280. And see Morton v. Morton, 4 Cush. 518; Clark v. Clark, 6 Watts & S. 85. 3 Geils v. Dickenson, 20 Eng. L. & Eq. 1, 15 Scotch Sess. Cas. n. s. H. of L. 28. : 64 [757] § 766 THE AUTHORITY OVER DIVORCE. [BOOK VIL. pose merely of carrying on the proceedings.1 But where the statute provided, that “no person shall be entitled to a divorce from the bond of matrimony, by virtue of this act, who is not a citizen of this State, and who has not resided therein at least one whole year previous to filing his or her petition ;” and the parties were citizens, yet the plaintiff wife, at the time of instituting her suit and for a period before, had a temporary residence abroad, with the intention of returning, — the jurisdiction was sustained. Said the judge: “ Do the latter words intend, that the residence shall be immediately before filing the petition? We are of opinion that they do not. When the citizenship is once established, the court will not consider, where there is no intention of abandonment, that mere absence from the State shall be such abandonment. . ... She has resided in the State one whole year before filing the petition, and against a citizen we will not necessa- rily make that year next before filing the complaint.”2 And in an Jowa case, the statute of which State requires the peti- tion for divorce to state, that the petitioner “has been for the last six months a resident of the State,” the court held, that merely abiding personally in the State during the six months is not sufficient ; the residence must be. intended by the peti- tioner to be a permanent one, animo manendi, in distinction from a transient sojourn? § 766. The Connecticut statute provides, that, “if the pe- titioner shall have removed from any other State or nation to this State, and shall not have steadily resided in this State three years next before the date of the petition, he or she ? Williamson v. Parisien, 1 Johns. Ch. 389. And see Lyon v. Lyon, 2 Gray, 367. * Fickle v. Fickle, 5 Yerg. 203. And see ante, § 729. See Person v. Person, 6 Humph. 148, in respect to the subsequent Tennessee Statute of 1835. And see McDermott’s Appeal, 8 Watts & S. 251. * Hinds v. Hinds, 1 Clarke, Iowa, 36,49. See also Kruse v. Kruse, 25 Misso. 68 ; Schonwald v. Schonwald, 2 Jones Eq. 367; Ashbaugh v. Ash- baugh, 17 Ill. 476. [ 758 ] CHAP. XXXII] AS EXERCISED BY THE COURTS. § 766 a shall take nothing by the petition, unless the cause of divorce shall have arisen subsequent to his or her removal to this State.’ And it was held, on a proceeding for divorce for in- tolerable cruelty and intemperance, that, though the intem- perance, which was a sufficient cause of itself, had continued after the removal of the wife into the State; still, as the hus- band had not come with her, but was a citizen of another State, she could not maintain her petition, until she had re- mained the three years; the exception in the statute applying only to cases where both parties have become residents of Connecticut, within whose jurisdiction the offence is subse- quently committed. Said the judge: “ The legislature surely could never have intended, that a woman living with her hus- band in another State might come into this State, and, by showing that her husband has been habitually intemperate or committed adultery since she removed to this State, at once obtain a divorce. Such a construction would open a wide door for applicants from abroad.” 1 § '766a. In Rhode Island, the general provision of the statute forbidding divorce to plaintiffs who have not resided a specified time in the State, may be, under a statute also, dis- pensed with by the court, in its discretion. Some principles to guide this discretion have been laid down by the tribunal; as, for instance, in a late case, Staples, C. J.,said: The jurisdic- tion has been taken without the specified residence, “in case the causes of divorce occurred in this State, or were causes of divorce under the laws of the State where they occurred,” if also both parties were domiciled in Rhode Island. Under other circumstances the jurisdiction had been declined, when sought on a residence less than the usual time.? 1 Sawtell v. Sawtell, 17 Conn. 284. See also Brett v. Brett, 5 Met. 233, a decision which has become unimportant in Massachusetts, in consequence of Stat. 1843, c. 77. And see ante, § 531. 2 Williams v. Williams, 3 R. I. 185. And see Ditson ‘v. Ditson, 4 R. I. 87. [759 ] § 768 THE AUTHORITY OVER DIVORCE. [Book VIL. CHAPTER XXXIII. LEGISLATIVE DIVORCES. Sror. 767-770. General View of the Subject. 771-775. Whether Legislative Divorces impair the Obligation of Contracts. 776-785. Whether they are Retrospective Laws. 786-792. Whether they are an Exercise of the Judicial Power. 798-800. Limitations and Exceptions to Power of Legislative Divorce. 801-807. Statutes authorizing Divorces for Causes already accrued. § 767. We have already seen, that anciently in England judicial divorces for adultery were probably from the bond of matrimony! But in 1601, a contrary rule was in the Court of Star-Chamber established, by Whitgift, Archbishop of Canterbury, assisted by other eminent divines and civilians ;? since which time, if not from an earlier period, the divorce has been uniformly from bed and board. The reformation brought with it the doctrine, that the commission of adultery, if not other offences, entitled the injured party to be freed from the vinculum of the marriage. We have seen how the attempt to reform the matrimonial law failed. Hence arose the practice of applying to parliament for a special act of divorce. ; § 768. The first application of this sort was by Lord de Roos in 1669. He procured, in the spiritual court, a sentence of separation a mensd et thoro on the ground of the adultery of Lady de Roos; and then presented his prayer to parlia- ment for an act dissolving the marriage a vinculo. After 1 Ante, § 417. 2 Foljambe’s case, 3 Salk. 137, where the decision is through mistake at- tributed to Archbishop Bancroft. Sir F. Moore, 683; Noy, 100. 3 Ante, § 278. [ 760 ] CHAP. XXXIII.] LEGISLATIVE DIVORCES. § 768 much opposition, but with the powerful aid of Bishop Cozens, it was obtained! The next two parliamentary di- vorces were granted just before the close of the same century, on similar grounds, at the suits of the Duke of Norfolk and the Earl of Macclesfield, respectively; and these three cases _ appear to have established the legislative practice for succeed- ing applications? We have already seen, that parliament will not give a divorce bill to the wife for the husband’s adultery, except in peculiar cases, out of the common course.® Whether evén the husband can obtain such a divorce for any other cause is uncertain; and the experiment would be too costly for most persons to undertake without some good hope of success. “On a retrospect,” says Macqueen, “ of one hun- dred and seventy years, since the establishment of the sys- tem of parliamentary divorce a vinculo, I find no case in which that remedy has been awarded or sought, without a charge of adultery. There is no example of a bill of divorce for malicious desertion; although in the other protestant countries of Europe that offence, properly established, is con- sidered a scriptural ground of divorce @ vinculo matrimoniz. .... It is not undeserving of attention, that the argument of Bishop Cozens, in Lord Roos’s case, was not limited to adul- tery, but included within its range this crime of malicious desertion, by which, as well as by adultery, he appears to have contended that the nuptial bond was rescinded. .... . What might be the result of such an application, strongly supported by evidence of wilful and long-continued desertion, and abandonment, must be matter of conjecture, or, at best, of very doubtful speculation; the discretion of parliament being unfettered by precedents, and opened to a free con- sideration of the special circumstances of every new case.” 5 1 Hosack Confl. Laws, 255; Macqeen Parl. Pract. 471, 551. On the latter page is a report of Lord Roos’s case, and the bishop’s argument. * Hosack ut supra; Macqueen Parl. Pract. 473. ® Ante, § 416. * But see ante, § 446, 474. 5 Macqueen Parl. Pract. 473, 474. 64* [ 761 J § 770 THE AUTHORITY OVER DIVORCE. [Book VII. § 769. From England was imported into most of the United States the practice, which prevailed more in former _times than now, of granting legislative divorces in merito- rious: cases not reached by the general law. In some instan- ces, indeed, though rarely, the legislatures have seemed to exercise a sort of concurrent jurisdiction with the courts. These special divorces are usually from the bond of matri- mony ; sometimes, from bed and board ;1 and sometimes they are in the nature of a sentence of nullity. Generally the English practice is adopted, of passing, though“with less ac- companying formality than in England, an act operating di- rectly on the marriage; but occasionally the method has been to empower one of the judicial tribunals to investigate the cause alleged, and grant the divorce if the complaint is sus- tained. This indeed is the practice always resorted to in some of the States.? § 770. The right of the English Parliament to dissolve marriages in this way is entirely clear; and this fact is a strong argument, that the same legislative right exists also in the United States. It is conclusive of every question except the great one; namely, whether the authority is not restrained, in this country, by constitutional provisions. As legislative divorces are coming into disrepute and judicial are more favored, the people of several of the States have utterly for- bidden the former by express clauses in recent revisions of their constitutions In such States, a legislative divorce would of course be a mere nullity. But when there is no express inhibition, the doubt is sometimes agitated, whether the legislature is not, in effect, debarred by the Constitution either of the United States, or of the particular State. This 1 See Young v. Naylor, 1 Hill Eq. 383; ante, § 275, note. * Berthelemy v. Johnston, 3 B. Monr. 90; Levins v. Sleator, 2 Greene, Towa, 604. 3-1 U.S. Mo. Law Mag. 187. * See Head v. Head, 2 Kelly, 191. [ 762 ] OHAP. XXXIII.] LEGISLATIVE DIVORCES. § 772 question may present itself somewhat differently in different States; but, after allowing for such differences, the authori- ties are still in irreconcilable conflict ; and so diverse, that any attempt to harmonize them would be fruitless. Nor is this surprising ; for some of the points involved are really attended with great intrinsic difficulty. We shall examine them in their order; premising, that substantially the conclusion ar- rived at is, that, as a general proposition, the several legisla- tures may dissolve by special act the marriage, yet may not include in the act any collateral matter, as a direction for the payment of alimony. § 771. First.— It has been suggested, but not often, that legislative divorces are an infringement of the provision of the Constitution of the United States, that “no State shall.... pass any .... law impairing the obligation of contracts.”1_ In the Dartmouth College case, Mr. Justice Story made use of language, arguendo,? which has been con- strued into such an intimation; but, if by any rules of inter- pretation this idea can be drawn from it, by the same rules his later and more mature opinion is shown to have been the other way? § 772. The Supreme Court of Florida, however, in a recent case appears to have taken this view. After stating another ground on which the decision equally rested, Semmes, J., who delivered the opinion, proceeded as follows: “I know no reason why the word contract, as used in the Constitu- tion, should be restricted to those of a pecuniary nature ; and not embrace that of marriage, involving, as it does, consid- erations of the most interesting character, and vital impor- tance to society, to government, and the contracting parties. It is comprehended by the words of the Constitution, and there is no rule of construction that would exclude it, in the 1 U. S. Const. art. 1, § 10. cl. 1. 2 Dartmouth College v. Woodward, 4 Wheat. 518, 695. ® Story Confl. Laws, § 108, note, and § 200; ante, § 761. [ 763 ] ‘§ 773 THE AUTHORITY OVER DIVORCE. [BooK VII. absence of any thing to show that it is not within its spirit. And what are the obligations of the contract, but the rights and duties which grow out of it? A legislative act which discharges the duties, and destroys the rights acquired, under any contract, must of necessity impair its obligation. A law affecting the remedy does not impair its obligation; but an act of the legislature dissolving the contract destroys the obligation.” ! And in a case of a somewhat earlier date, one of the judges of the Supreme Court of Missouri delivered an argument to substantially the same effect.? § 773. Now this provision of the Federal Constitution is not generally supposed to have any sort of reference to mar- riage. And in a very late opinion of the Supreme Court of the United States, it was observed by Daniel, J., that the contracts designed to be protected by it are those “by which perfect rights, certain definite, fixed, private rights of property are vested.”* We have seen, that a marriage is not, in any proper or ordinary sense, a contract, but a status; resembling more the relation of father and child than that of two con- tracting parties.® But if it were a contract within this pro- vision of the Constitution, the consequence would seem to follow, that nothing could ever be made a ground of divorce which was not such at the time it was entered into, — con- trary to the universal doctrine, concerning which there is no dispute. 1 Ponder v. Graham, 4 Fla. 23. * McGirk, J., in The State v. Fry, 4 Misso. 120, 184. = See ante, § 761, and the authorities there cited. * Butler v. Pennsylvania, 10 How. U. S. 402, 416, 8 Am. Law Jour. 385. See also, Stanley v. Stanley, 26 Maine, 191; Phalen v. Virginia, 8 How. U. 8.163, 168; Cochran v. Van Surlay, 20 Wend. 365; People v. The Auditor, 1 Scam. 537. As to what are vested rights of property, see post, § 777-784. It has been held, that a statute releasing husbands from liability to pay the antenuptial debts of their wives, may be constitutionally applied to marriages which were entered into before the enactment of the statute, Fultz v. Fox, 9 B. Monr. 499. ® Ante, § 29-41. [ 764 ] CHAP. XXXIIr.] LEGISLATIVE DIVORCES. § 774 § 774. In respect to the last point it has indeed been said, that “regulations intended to enforce the obligations of the contract in future, impair no vested rights. The contract of marriage, it is well understood, is subject to them, and all persons may avoid their operation by an adherence to the duties imposed by the contract itself”! But the answer to this reasoning, which is correct if marriage be viewed as a status or institution of society, is, that if viewed as a contract of like character with other contracts, it is no violation of the agreement entered into to do a thing which was not then le- gally prohibited; and to create a new duty and attach a new penalty is to infringe the rights that have accrued under it? To this extent, indeed, the reasoning of McGirk, J.,in Mis- souri, seemed to point. “In the case before the court,” he said, “I think it has been shown, that by this marriage the wife contracted and gave to the husband her person and for- tune, subject to the action of the law of the land as it then stood. Jt isa fixed rule in law, that the law relating toa contract is as much a part of the agreement as if it were ex- pressed by the parties.” And in the language of Story, “imposing conditions not expressed in the contract,. .. . however minute or apparently immaterial in their effect upon it, impairs its obligation.”* It is therefore well established, that State insolvent laws, which undertake to discharge, even between citizens of the State, the obligation of contracts made antecedently to their passage, are in violation of this constitu- tional provision. But the whole course of judicial decision has been to consider all divorce laws as being properly appli- cable to marriages contracted previous to their enactment. Even in those cases where it has been held that they cannot 1 Clark v. Clark, 10 N. H. 380, 391; ante, § 761. ? See Gains v. Buford, 1 Dana, 481, 484; Violett v. Violett, 2 Dana, 323, 326. * The State v. Fry, 4 Misso. 120, 184, 185. s. Pp. Bryson v. Campbell, 12 Misso. 498. * Story Const. § 1379. 5 Story Const. § 1381, 1384. . [ 765 ] § 777 THE AUTHORITY OVER DIVORCE. [Book vit. include antecedent causes of divorce, it has been conceded they can antecedent marriages. § 775. It is not strange, therefore, that courts are not ready to yield to a doctrine which in its consequences would over- turn established principles, work infinite domestic distress, and bastardize multitudes of children. And it is clearly held, and is, in spite of the contrary opinions we have alluded to,? the settled law, that legislative divorces are not invalid as im- pairing the obligation of contracts, within the meaning of the Constitution of the United States, whatever other objections may be urged against them.® § 776. Secondly.— Many of the State Constitutions con- tain a clause forbidding the legislature to pass any retrospec- tive laws. And where there is no express clause, such laws are generally held to be void, as opposed to the principles of right inherent in the social compact. But where it is. just and proper that they be passed, they are valid, unless expressly in contravention of the Constitution.® And the question has been agitated, and variously decided, whether a legislative divorce is a retrospective act within either the gen- eral principle, or the constitutional inhibition. § 777. Before we enter upon the direct consideration of this 1 Clark v. Clark, 10 N. H. 380; post, § 801 et seq. > Ante § 772. . 5 Opinion of the Supreme Judieial Court of Maine, 16 Maine, 481; Starr v. Pease, 8 Conn. 541; Berthelemy v. Johnson, 3 B. Monr. 90 ; Hull v. Hull, 2 Strob. Eq. 174; Bingham v. Miller, 17 Ohio, 445, 447; Levins ». Sleator, 2 Greene, Iowa, 604. * University v. Williams, 9 Gill & J. 865; Ward v. Barnard, 1 Aikens, 121; Lyman v. Mower, 2 Vt..517; Kendall v. Dodge, 3 Vt. 360; Merrill v. Sherburne, 1 N. H. 199, 213; Ham v. McClaws, 1 Bay, 93; Story Const. § 1399; 1 Bishop Crim. Law, § 53, 54. But see Beach v. Woodhull, Pet. C. C. 2. ® Goshen v. Stonington, 4 Conn. 209. [ 766 ] CHAP. XXXIII.] LEGISLATIVE DIVORCES. § 778 topic, it will be necessary to take a view of some of the prin- ciples which, in other causes than divorce, have guided the courts in determining, whether a particular statute is retro- spective or not. Said Richardson, C. J.,in a New Hamp- shire case: “A retrospective law, for the decision of civil causes, is a law prescribing the rules by which existing causes are to be decided upon facts existing previous to the making of the law. Indeed, instead of being rules for the decision of future causes, as all laws are in their very essence, retrospec- tive laws for the decision of civil causes are, in their nature, judicial determinations of the rules by which existing causes shall be settled upon existing facts. They may relate to the grounds of the action, or the grounds of the defence.”! And it was observed by Judge Story, that, “upon principle, every statute which takes away or impairs vested rights, acquired under existing laws; or creates a new obligation, imposes a new duty, or attaches a new disabilitity, in respect to transac- tions or considerations already past; must be deemed retro- spective, and this doctrine seems fully supported by author- ities.” 2 : § 778. Butin order to render an act retrospective within the prohibitory provision we are considering, it must undertake to “impair,” in the language of Woodbury, J., “rights which are vested. Most civil rights are derived from public laws; and if, before the rights become vested in particular individu- als, the convenience of the State produces amendments or repeals of those laws, those individuals have no cause of com- plaint. The power that authorizes or proposes to give, may always revoke before an interest is perfected in the donee. Thus, the right to prosecute actions in a particular time or manner may, perhaps, be modified or taken away at any period before actions are commenced. So also may the +} Woart v. Winnick, 3 N. H. 473, 477. ? Society v. Wheeler, 2 Gallis, 105,139. 8. p. Officer v. Young, 5 Yerg. 320. 3 Whitman v. Hapgood, 10 Mass. 487, 439. [ 767 ] § 780 THE AUTHORITY OVER DIVORCE. [Book VII. right of femes covert to dower, at.any period before the death of their husbands; and so the right of the next of kin to a relation’s estate, at any period before the relation’s death.” } §'779. And in the Supreme Court of Tennessee, concern- ing the provision of the State Constitution “that no retro- spective law, or law impairing the obligation of contracts, shall be made,” Haywood, J., thus discourses : “ Does it mean all retrospective laws in general, or only some particu- lar description, and, if the latter, of what description? Not retrospective laws in general; for then no law could be made for the remuneration of past services, not even the members of assembly, their clerks, and door-keepers, at the end of each .session of assembly. Nor could further time be given for the probate and registration of deeds; of which there never was any doubt, from the first assembly after the formation of the Constitution to this day. Such probates and registrations have been sanctioned in a thousand instances by our courts of justice. Nor can it mean, laws made for the preservation and establishment of just rights and titles which have become imperfect and infirm by the non-observance of some legal ceremony ; for these laws are not to take away rights, but to confirm and establish them. § 780. “ Laws,” continued the learned judge, “ for providing easier modes for proving deeds; for rewarding past services ; for amending mistakes in grants and deeds; for giving ver- dicts in evidence, instead of judgments ; for legalizing mar- riages made under the Frankland government, administra- tions under the same government, and judgments and sales under its authority ; and acts of limitation, suspended during the time a war lasted,—in such instances the law is retro- spective, but not unconstitutional, because not such retro- spective law as this article of the Constitution prohibits. * Merrill vy. Sherburne, 1 N. H.199, 214. [ 768 ] CHAP. XXXIII.] LEGISLATIVE DIVORCES. § 781 There are some retrospective laws which it does prohibit; ex post facto laws, for instance, and laws impairing the obligation of contracts ; these are justly prohibited, because they destroy existing rights, not preserve them from destruction. If there be any other such laws, which the Constitution prohibits, time and future emergencies will bring them to light; but to say in general, all retrospective laws are void, is to introduce at one breath all the disorders which have been supposed by the acts before mentioned, and by many others which are not at present particularly remembered; and to wrest from the legislature a power which has been hitherto exercised to the great benefit of the community, and for which, in various instances, complete and perfect justice could not be procured without the use of such laws, — is what the court, in my judg- ment, have not the right and should not have the wish to do. Whenever a legal right did once exist, and is likely to be lost by some accident, omission, or imperfection, an act of the legislature may be interposed to prevent the loss, and to give stability to the right. In such case, no one is deprived of his property; but, on the contrary, loss of property is obviated, and just and equitable rights, which conscience sanctions, are preserved.” } § 781. In further illustration of the principle, that, within this constitutional inhibition, a law is retrospective or not, according as the rights it assumes to take away are vested or otherwise, — we may observe, that, while the legislature can change a statutory period of limitation in respect to causes of action existing and not already barred by lapse of time, or in respect to a lien on an existing judgment ;? yet, if the statute has fully run, and the lien is extinguished, or, if the right of action is barred, the extinct right cannot be revived by subse- Y 1 Bell v. Perkins, Peck, 261, 266, 267. See also Stanley v. Stanley, 62 Maine, 191. i 2 Miller v. Commonwealth, 5 Watts & S. 488. 65 " £769] § 782 THE AUTHORITY OVER DIVORCE. [BOOK VII. quent legislation! So while a marriage, void for want of legal authority in the person who celebrated it, may be ren- dered valid by subsequent legislation, the effect of which legislation may be to transfer immediately the settlement of a pauper from one town to another; yet a town, thus newly charged, cannot be thereby compelled to pay for support of the pauper furnished before the passage of the act.2 So, as marriage does not absolutely vest in the husband the wife’s choses in action, but only gives him a qualified title to them, dependent upon his reducing them, during the coverture, to possession ; a statute may, before such reduction, intervene and hold them to her sole and separate use ; and he will then have no right to the property on its coming actually into her hands. But if it has already vested in him, by a reduction to possession; or, if he has a vested remainder in her proper- ty, of which he has not become actually possessed, — his right cannot be taken away by legislation. So the legislature may make any special or general law regulating the proceed- ings in courts for the enforcement of causes of action which have already accrued ; but, after a party has obtained judg- ment, it cannot authorize a new trial or an appeal.® §:782. Thus it is seen, that the legislative department may very materially affect the rights of citizens, without infringing 1 Woart v. Winnick, 3 N. H. 473; Holden v. James, 11 Mass. 396 ; Brad- ford v. Brooks, 2 Aikens, 284. 2 Brunswick v. Litchfield, 2 Greenl. 28; Lewiston v. North Yarmouth, 5 Greenl. 66. See post, § 792, note. 5 Clarke v. McCreary, 12 Sm. & M. 347; Price v. Sessions, 8 How. U. S. 624. Butsee Holmes v. Holmes, 4 Barb. 295; White » White, 5 Barb. 474. And seé ante, § 773, note. * Jackson v. Sublett, 10 B. Monr. 467. * Such acts are void, not only because they are retrospective, but because they are an exercise of judicial power. Lewis v. Webb, 3 Greenl. 326; Durham v. Lewiston, 4 Greenl. 140; Bates v. Kimball, 2 D. Chip. 77; Staniford v. Barry, 1 Aikens, 314; Merrill v. Sherburne, 1 N. H. 199. But see Calder v. Bull, 3 Dall. 386, which has been thought, however, not to be inconsistent with the-foregoing authorities. Smith Stat. and Const. Law, § 865. [770] CHAP. XXXIII.] , LEGISLATIVE DIVORCES. § 784 upon the constitutional provision against retrospective enact- ments. “They may so change the law of descents as to cut off all our expectations of inheritance, and confer it upon a single child; and may deny the power of disposition by will, so as to prevent the bounty of our parents. They may so change the rules of evidence as to make it difficult to estab- lish our rights. They may so limit the time of suit, as, when elapsed, to deny us all remedy to enforce those rights; and yet, in all these cases and the like, not violate that great fundamental law.” 1 § 783. So this constitutional objection is one which the parties in interest may waive ;? and, if they do waive it, the act, passed therefore with their consent either express or im- plied, will be good, when otherwise it would have been invalid. Thus it is that “all public officers impliedly consent to alter- ations in the institutions in which they officiate, provided the public deem it expedient to introduce a change.”? So that a law creating an office may be repealed before the term of an incumbent has expired; and the repeal determines both the office and the compensation.* For the same reason the State may pass a retrospective act impairing its own rights.5 And a person not interested in the right cannot object, that the law is unconstitutional as being retrospective.® § 784. Whatever view, therefore, we take of marriage, even though we deem it to all intents a contract, the legislature is clearly competent to divorce parties with their consent.?’ So it would seem that the consent, instead of being express, may be implied; as by the divorced person ceasing to make any ! Edwards ov. Pope, 3 Scam. 465, 469. * See Dula v. The State, 8 Yerg. 511; 1 Bishop Crim. Law, § 657. * Woodbury, J., in Merrill v. Sherburne, 1 N. H. 199, 213. * People v. The Auditor, 1 Scam. 537; Butler v. Pennsylvania, 10 How. U.S. 402. § Davis v. Dawes, 4 Watts & S. 401. © Sinclair v. Jackson, 8 Cow. 543; Coleman v. Carr, Walk. Missis. 258. 7 See Berthelemy v. Johnson, 3 B. Monr. 90. [771] § 784 THE AUTHORITY OVER DIVORCE. [Book VII. claim to marital rights, after he is informed of the divorce. Nor could any third person take the objection,! that the act was passed without the concurrence of the parties. And, said a learned judge in delivering, in a case where no consent was shown, the most elaborate opinion against legislative di- vorces to be found in the books: “I see no reason why this act will not operate, as it declares it shall act, so as to free the parties from the pains and penalties of a second marriage. I ‘see no reason why the legislature may not make the children of the second marriage capable of inheriting to whomsoever they choose, in case of intestacy.” In short, the legislature may clearly, and even without the consent of the parties, en- act, that they shall no more be known as husband and wife; that each may take a new matrimonial partner; that they shall no more cohabit underthe former marriage; or, if they do, that they shall be punished as for adultery, and the issue shall be illegitimate ; and that the issue of the second marri- age shall be legitimate. Nothing of this would be a divesting of vested rights, but it would be furnishing rules for future conduct; and what would remain of the vinculum of the mar- riage would not be worth contending for? If a legislature should pass such an act wantonly, and without any reason but a wish to injure a citizen; or, if it should undertake to overturn all marriages by one general statute; another ques- tion might arise, not whether the act was retrospective as di- vesting vested rights, but whether it was not a violation of the good faith implied in the organization of every constitutional government. We conclude, therefore, that a special act dis- solving a marriage is not a retrospective law; and this is the view best sustained by authority.* 1 Ante, § 783. * McGirk, J., in The State v. Fry, 4 Misso. 120,193. A legislature may even alter the status of legitimacy; but this will not divest rights of property already vested. Norman v. Heist, 5 Watts & S. 171. ® See opinion of the Supreme Judicial Court, 16 Maine, 479, 481. * Starr v. Pease, 8 Conn. 541; Townsend v. Griffin, 4 Harring. Del. 440; Holmes v. Holmes, 4 Barb. 295; Maguire v. Maguire, 7 Dana, 181; Hull v. [772] CHAP, XXXII. ] LEGISLATIVE DIVORCES. § 786 § 785. Another very clear, and it would seem just, view of this matter has been taken. It is, that marriage is an institu- tion in which the public is interested; and that the legisla- ture must, therefore, always retain control over it. Vested rights of private property may be transferred from one indi- vidual to another, for the public good; though, in this case, not without compensation! So, for the same reason, a mar- riage, even regarding it as a vested right, may be dissolved when the dissolution of it will be for the public good And the question of compensation could not arise. Still the true view is undoubtedly to consider, that the constitutional inhi- bition of retrospective laws, like that concerning the obliga- tion of contracts, has nothing whatever to do with questions of status. . § 786. Thirdly. It has been sometimes urged, that legisla- tive divorces are an infringement upon the rights of the judi- ciary. There is nothing in the Constitution of the United t Hull, 2 Strob. Eq. 174; West v. West, 2 Mass. 223. The case of The State v. Fry, 4 Misso. 120, affirmed in Bryson v. Campbell, 12 Misso. 498, which appears to be very strong against the legislative power of divorce, does in fact only decide, that the husband, who has not consented to the act, is not by it barred from recovering the wife’s choses in action. This doctrine, as- suming the marriage to be dissolved, is indeed contrary to the general course of authority, which considers the choses in action dependent on the cover- ture, and the husband’s right to receive them as ceasing with it. Ante, § 668. And see the observations of Marshall, C. J., upon this case in Gaines v. Gaines, 9 B. Monr. 295. It may be observed, that the decision in The State v. Fry appears to have produced little effect at home, or else to have been there regarded as settling nothing as to the vinculum of the marriage; for the legislature, at its next session, granted fifty-five special divorce bills. Page on Div. 58, note. In a later Missouri case, the legislative power to undo the vinculum was directly in issue, and the court most distinctly de- nied the existence of it. Byson v. Byson, 17 Misso. 590. In Berthelemy v. Johnson, 3 B. Monr. 90, it is left undecided, ‘ whether the legislature could constitutionally dissolve the marriage without the consent of both parties to it, and without any breach of the contract.” 1 Beekman v. Saratoga and Schenectady Railroad, 3 Paige, 45. 2 Maguire v. Maguire, 7 Dana, 181 ; Townsend v. Griffin, 4 Harring. Del. 440; Holmes v. Holmes, 4 Barb. 295, 301. 65* [773] § 787 THE AUTHORITY OVER DIVORCE. [Book VII. States which restrains the legislatures of the States from the exercise of judicial powers.! But in several of the State Con- stitutions there are express prohibitions; and, in all, “the legis- lative, judicial, and executive functions are vested in different ‘functionaries; and it would seem to follow, that the powers thus specially given should be exercised under their appro- priate limitations.”2 And the question has been considerably agitated, whether the granting of divorces is not a judicial act, ‘which can only be performed by the judiciary. Chancellor Kent has said: “ The question of divorce involves investiga- tions which are properly of a judicial nature, and the jurisdic- tion over divorces ought to be confined exclusively to the judicial tribunals, under the limitations to be prescribed by law.”® But this learned jurist has nowhere expressed the opinion, that a divorce may not be valid as an exercise of legislative power. What therefore is a legislative, and what a judicial, function within the meaning of this constitutional provision? And is the dissolution of marriage the one, or the other, or both? § 787. “In some cases,” observes McLean, J., “it is diffi- cult to draw the line that shall show with precision the limi- tation of powers, under our form of government. The execu- tive, in acting upon claims for services rendered, may be said to exercise, if not in form, in substance, a judicial power. -And so a court, in the use of a discretion essential to its existence, by the adoption of rules or otherwise may be said to legislate. A legislature, too, in providing for the payment of a claim, exercises a power in its nature judicial; but this is coupled with the paramount and remedial power.”* And there are functions which may be employed at pleasure either 1 Satterlee v. Matthewson, 2 Pet. 413. * McLean, J., in Watkins v. Holman, 16 Pet. 25, 60. And see the obser- vations of Harrington, J., in Townsend v. Griffin, 4 Harring. Del. 440. 3 2 Kent Com. 106. * Watkins v. Holman, 16 Pet. 25, 60. See also Miners Bank v. United ” States, 1 Greene, Iowa, 553. [774] CHAP. XXXIII.] LEGISLATIVE DIVORCES. § 788 by the courts or the legislature. Thus it is evident, that the same rules of procedure which the judicial tribunals are com- petent to make for themselves, may be made, instead, by the legislature. Thus, too, the legislature may license the sale of the real estate of minors, notwithstanding it has delegated the same authority to the courts! And therefore, upon prin- ciple, there would seem to be no reason why the granting of a divorce should not be either a legislative, or a judicial, act, — legislative, when it is performed as a mere exercise of sound discretion, for the good of the parties and of the public, in which case, vested rights could not be divested, but only their social relation or status for the future ascertained and estab- lished ; judicial, when it is demanded as a right, under estab- lished laws, in consequence of some breach of duty committed by the offending party. In the latter case, the court would proceed to settle such collateral consequences concerning property as the general law had placed within the purview of the cause. § 788. But, to continue the inquiry as to the distinction between a legislative and judicial function. In a New Hamp- shire case, Woodbury, J., observed: “ A marked difference ex- ists between the employments of judicial and legislative tri- bunals. The former, decide upon the legality of claims and conduct; the latter, make rules, upon which, in connection -with the Constitution, those decisions should be founded. It is the province of judges to determine what is the law upon existing cases. In fine, the law is applied by the one, and made by the other. To do the first, therefore, to compare the claims of parties with the laws of the land before established, is in its nature a judicial act. But to. do the last, to pags new rules for the regulation of new controversies, is in its nature a legislative act; and, if these rules interfere with the past or the present, and do not look wholly to the future, they violate the definition of a law, as a rule of civil conduct; 1 Rice v. Parkman, 16 Mass. 326; Watkins v. Holman, supra. See also Cochran v. Van Surlay, 20 Wend. 365. [775] § 790 THE AUTHORITY OVER DIVORCE. [Boor vr. because no rule of conduct can, with consistency, operate upon what occurred before the rule itself was promulgated.” 1 Perhaps, therefore, if we were to attempt a definition it would be, that a judicial act is the determination of the rights of parties, by the application of those rules of law which the court finds to be in actual existence, to facts which are either admitted or proved; while a legislative, is the. establishment of a new rule for the future. This new rule may be made applicable either to one or more particular individuals alone, in which case it is termed a special act; or io the entire com- munity, when it is denominated a general statute. And here we may observe, that, if this distinction be adopted, the granting of a divorce,.so far as it operates to- change the status of the parties, may be either legislative or judicial. § 789. The fact that the statute is special, instead of gen- eral, cannot alter the question; for the number of persons upon whom it is to operate is immaterial.® § 790. The Judges of Maine have taken a view of this sub- ject which is somewhat novel. It is, substantially, that, the source of all power being in the legislature as the representa- 1 Merrill v. Sherburne, 1 N. H. 199; s.p. Jones v. Perry, 10 Yerg. 59, 69. ® The distinction is thus stated by Smith: “If an act of the legislature in terms judicially determines a question of right or of property, as the basis upon which the act is founded, so far the act must be regarded as a judicial act, and repugnant to the Constitution. But if the act simply authorizes the doing of an act with the view of attaining a given end, or ‘accomplishing a particular result, without any determination of the fact of the existence of that which secures to a party a right to the fruits of the act; such an act is not liable to this constitutional objection.” Smith Stat. & Const. Law, § 347. Again: “Where a legislative act does not in any manner determine any matter of fact or of right dependent upon matters of fact, such an act is not liable to the objection, that it is the exercise of judicial powers.” Ib. § 351. ’ Edwards v. Pope, 3 Scam. 465, 469; Watkins v. Holman, 16 Pet. 25, 69; Norman v. Heist, 5 Watts & S.171; Commonwealth v. Worcester, 3 Pick. 462, 473. [776 ] CHAP. XXXIII.] LEGISLATIVE DIVORCES. § 790 tive of the people, every function is legislative until made judi- cial by legislative enactment. But when legislation has vested a jurisdiction in the courts, then all matters committed to them become judicial, and they cannot be concurrently acted upon by the legislature. There is no other mode, it was said, of ascertaining what subjects do properly belong to the legisla- tive, and what to the judicial, department. “ Men’s judg- ments may greatly differ respecting what questions are, in their own nature, essentially judicial. One of the principal objects of the provision for the division of power, doubtless, ‘was to avoid the danger and mischief of a conflicting exer- cise of power upon the same subject. By the proposed con- struction this can never take place between the legislative and judicial powers, in those cases over which the judicial power by law has no jurisdiction, although they may be ap- parently proper for judicial decision. To declare, that all questions apparently more fit for the exercise of judicial, than legislative, power were included within the judicial power, would be, therefore, to extend that power by construction beyond what is necessary to avoid the mischiefs to be appre- hended from a conflict of power. And it would leave the judicial power so vague and undefined, as to afford frequent occasion for those very conflicts and mischiefs which it was the intention to avoid. It may be objected to this construc- tion, that it would permit the legislature, by refusing to pass any law giving to the judicial power cognizance of any class of contracts or questions, to usurp the whole judicial power, and to decide upon all contracts and questions arising between party and party. It is not to be presumed that it would refuse to perform its duty, and so violate the Constitution as to annihilate, for all practical purposes, one department of the government. And if it could be supposed to do so, it could not itself exercise the power thus improperly withheld, in all that class of cases which are required by the Constitution to be tried by jury.” In applying this principle to the question of divorce, the judges were of opinion, that, until the legisla- ture enacts laws upon the subject, and invests the courts with Jurisdiction, it can itself exercise the authority at pleasure ; but [777] § 791 THE AUTHORITY OVER DIVORCE. [BOOK VII. it cannot interfere in respect to those causes which it has intrusted to the judiciary; else there would be practically an appeal from the highest judicial tribunal. Yet, for causes not embraced in the general laws, the legislature may lawfully grant divorces. The same view, substantially, was also taken in a very late case, by the court in Iowa. And it was said, that the burden of proof lies with the party calling in question the legislative divorce, to show, that it was for a cause within the authority of the courts? § 791. Lexicographers consult usage to determine the sig- nification of words. And so, as a doctrine of statutory inter- pretation, the words of a new law are to have the meaning they bore in the old.2 On this principle, a judicial power, in the language of the Constitution of a State, may well be regarded as one which had previously been exercised by the judicial tribunals; and a legislative, one that had been em- ployed by the legislature. Now, in England, the country from which we derive our laws, no judicial dissolutions of valid marriage have been known till of late; but all were by ’spe- cial legislative act. And divorce acts have been frequent, from early times, in almost all our colonies and States. When therefore our Constitutions were adopted, the granting of di- vorces was practically a legislative function. And we may conclude, that, if in any case the people had intended to re- strain this practice, they would have so specified; and that an inhibition of judicial powers should not be construed to em- brace a function which had theretofore been exercised by the legislature In aid of this view is the fact, that, in most of the States, the same legislative practice has prevailed since * Opinion of the Supreme Judicial Court, 16 Maine, 479, 483, 484, 485. See also the observations of Harrington, J., in » Townsend v. Griffin, 4 Har- ring. Del. 440. See post, § 794. * Levins v. Sleator, 2 Greene, Iowa, 604. * 1 Bishop Crim. Law, § 70, 71. * Crane v. Meginnis, 1 Gill & J.463. And see Jamison v. Jamison, 4 Md. Ch. 289, 297. [778] CHAP. XXXIII.] LEGISLATIVE DIVORCES. § 792 the adoption of their Constitutions, as before ; and thus we have, not only a sort of contemporaneous construction, but scope for the further consideration, that, since the power has been used for many years, it should be deemed, almost conclu- sively, to have been rightly employed. The judgment and usage of ages is an authority not lightly to be disregarded.1 § 792. But whatever be the course of argument adopted, the general result is, that the granting of divorces by the legislature is not such an exercise of judicial authority as will render them invalid In Missouri, where a contrary doctrine is held, the provision of the Constitution is in very peculiar language. It is: “ The powers of the government shall be divided into three distinct apartments, each of which shall be confined to a separate magistracy, and no person charged with the exercise of powers properly belonging to one of those departments shall exercise any power properly belonging to either of the others, except in the instances hereafter ex- pressly directed or permitted”? Whether, however, this peculiarity of language did or should make any difference in 1 The State v. Mayhew, 2 Gill, 487; Calder v. Bull, 3 Dall. 386. 2 Starr v. Pease, 8 Conn. 541; Crane v. Meginnis, 1 Gill & J. 463; Ma- guire v. Maguire, 7 Dana, 181; Hull v. Hull, 2 Strob. Eq. 174; West v. West, 2 Mass. 223; Townsend v. Griffin, 4 Harring. De]. 440 ; Holmes v. Holmes, 4 Barb. 295, 301; Levins v. Sleator, 2 Greene, Iowa, 604; Jones v. Jones, 1 U. 8. Mo. Law Mag. 300, 2 Jones, Pa. 350. But see Ponder v. Graham, 4 Fla. 23; Wright v. Wright, 2 Md. 429. And see 3 American Jurist, 180. It has been held, that a marriage void because contracted within the prohibited degrees may be confirmed by a subsequent legislative act. The court say: “The disability was a statutory one, and is removed by statute. The legislature has power to declare what shall be valid mar- riages. They can annul marriages already existing, a fortiori they can render valid, marriages which, when they took place, were against law. They can exercise the power of marriage, or delegate it to others. The whole subject is one of legislative regulation.” This case contained the element, that the husband and wife had jointly applied to the legislature to have the marriage confirmed. Moore v. Whittaker, 2 Harring. Del. 50. ® The State v. Fry, 4 Misso. 120; Bryson v. Bryson, 17 Misso. 590 And see ante, § 784, note. [779] § 793 THE AUTHORITY OVER DIVORCE. [BOOK VII. the result, is perhaps doubtful. In Ohio, too, whose Supreme Court expressed the opinion, that the granting of divorces is a judicial act, not within the authority of the legislature ; but still pronounced such a divorce valid, because of the mis- chiefs which would ensue from a contrary decision; there appears to have been a peculiarity of another sort in the Con- stitution. The court said: “ The legislature is not sovereign ; nor are all the departments of government combined. The people only are sovereign. Nor can the matter be helped out by implication; for the constitution in express terms declares, that ‘all powers not hereby delegated remain with the people.’ The legislature, then, as well as the other depart- ments of State, possesses only a delegated power, and can exercise no powers not delegated. The Constitution confers no power to grant divorces.”1 In respect to this view it is obvious, however, that the Constitution of Ohio must have authorized the legislature to make laws, special as well as general; and a divorce act is merely a special law. § 793. Having, therefore, on a view of the various branches of this subject, arrived at the conclusion, that, as a general proposition, the legislatures of the several States have power to grant divorces by special act, let us look at some of the limitations which have been proposed to this doctrine. In the first place, such divorces cannot be awarded in those States where they are expressly prohibited by the Constitution? In the next place, perhaps. a legislative divorce may, like any other, be void for fraud ;* though this point appears to have been decided in a recent case the other way.* In the third place, we have already stated the doctrine of Maine and Jowa, that these divorces are not allowable for causes over which the courts have jurisdiction® A position similar to ? Bingham ». Miller, 17 Ohio, 445. 2 Ante, § 770. ® See Charles River Bridge v. Warren Bridge, 7 Pick. 344. * Ante, § 707; post, § 795-797. See 1 Bishop Crim. Law, § 55. 5 Ante, § 790. [ 780 ] CHAP, XXXIII.] LEGISLATIVE DIVORCES. § 794 that last named appears also to have been maintained by the tribunals of one or two other States;! but the question has there been blended with others, which we shall presently con- sider? § 794, It is not apparent upon what principle a legislative divorce can be, in any proper, legal sense, for cause. When there is a cause, that is, when one party has committed an of- fence which entitles the other to the remedy, it would seem, that the ascertainment of the fact, and the sentence of law following, must be viewed only as an exercise of judicial power, not competent to the legislature.? But on the other hand, a divorce act, like every other statute, would appear necessarily to flow merely from the sovereign will. It is not the ascertainment of a right, but the creation of one.t In its creation, however, as in the enactment of all other laws, the individual legislators are not supposed to proceed blindly and therefore the petitioner presents to them reasons, such as he thinks best calculated to influence their minds; yet this motive power can hardly be regarded as a cause for divorce. Now, if we admit the distinction laid down in Maine and Iowa,’ we come to this conclusion, — that a legislative di- vorce is good or not, according as the petitioner might have obtained, or not, a decree in the courts; and, if there was an offence unknown alike to him and the legislature, it would still overturn the divorce, rendering it invalid, simply because a greater wrong had been inflicted than was supposed. But * 1 Jones v. Jones, 2 Jones, Pa. 350, 7 Legal Intelligencer, 19, 1 U. S. Mo. Law Mag. 300; Gaines v. Gaines, 9 B. Monr. 295; Townsend v. Griffin, 4 Harring. Del. 440; Crane v. Meginnis, 1 Gill & J. 463. 2 Post, § 795-797. 3 Ante, § 788. * “Tt would seem,” observes Marshall, C. J., of Kentucky, “ that a legis- lative divorce can be regarded as an exercise of the purely legislative func- tion only, if at all, when it is founded upon the mere will or discretion of the legislature, without reference to the breach of any existing contract or law.” Gaines v. Gaines, 9 B. Monr. 295, 307. ® Ante, § 790. 66 [781 ] § 796 THE AUTHORITY OVER DIVORCE. [BOOK VII. even a party who proceeds in court may allege any one of several sufficient causes, and take a decree based solely on that one; so, as the legislative power acts without cause, while the courts do not, why should its action be construed as interfering with them? or as being the exercise of a juris- diction concurrent with theirs? A legislative divorce, more- over, is essentially a different thing from a judicial; although it bears the same name, and, to a certain extent, answers the same end. § 795. In Pennsylvania, however, the distinction taken by the judges in Maine and Iowa appears to be necessary. There the amended Constitution of the State provides, that “ the legislature shall not have power to enact laws annulling the contract of marriage, in any case where, by law, the courts of this Commonwealth are or may hereafter be empowered to decree a divorce ;” and, if the legislature were not deemed to have proceeded upon some cause, and, if the judiciary could not go behind an act in which none appears and ascertain what it was, this constitutional inhibition would fail to ac- complish any purpose whatever. Therefore to give effect to the inhibition, the cause may be thus inquired into. But it was also apparently decided, that the court could not take cognizance of any fraud in the procurement of the act. § 796. In Kentucky, a wife brought her bill for alimony ; the husband filed an answer in the nature of a cross-bill for divorce. Before the hearing, he, to defraud her of her prop- erty and claim to be supported out of his estate, procured of the legislature an act dissolving the marriage ; which he set up in a supplemental answer. After this, he died; and she filed her bill of revivor against the executor and heirs, demanding dower and distribution as widow. Here a fraud was at- tempted upon her; and the court held, that, under the circum- stances, her claim should not be defeated by it. “The ques- Jones v. Jones, 2 Jones, Pa. 350. [782] CHAP. XXXIII.] LEGISLATIVE DIVORCES. § 796 tion,” observed Marshall, C. J., who delivered the opinion, “is not simply, whether the legislature may, under any circum- stances, constitutionally enact that A. be divorced from B.; but whether, when it is manifest that a party, after having sought a divorce in a judicial tribunal, and while his suit is there pending, abandons that forum and resorts to the legis- lative power for the sole purpose of affecting and defeating the legal and equitable rights of his wife in his property, the divorce, granted by the legislature on such application, can, without disregarding the division of powers and distinction of departments established by the Constitution, and the security of private rights of contract and of property therein granted, be considered as affecting to any extent the rights of property involved in the question of divorce. We are of opinion that it cannot...... If it were conceded, as intimated in McGuire v. McGuire,! that the marriage contract is not a contract wholly removed, like other contracts, from the power of the legislature to dissolve it in any particular case by special act of divorce; and that the dissolution of a marriage, if required by the public good, may be a legislative function ; still it cannot be admitted, that a power thus de- duced, uncertain upon principle as to its existence, and still more uncertain as to the grounds of its legitimate exercise, can override the express and highly conservative prohibitions in the Constitution, intended for the protection of private rights of property. We are of opinion, therefore, that what- ever power, to be exercised in view of the public good, the legislature may have to enact divorces in special cases; as it cannot, even for the public good, change the right of private property from one to another without compensation; much less can it do so by special act of divorce, sought by one of the parties against the consent of the other, with the purpose of affecting or operating upon the rights of property incident to the marriage relation, as created and sustained by the general laws applicable to that relation. And the wife hav- 1 McGuire v. McGuire, 7 Dana, 181. [783 ] § 798 THE AUTHORITY OVER DIVORCE. [BOOK VII. ing taken no advantage of any privileges afforded by the divorce,! she is in no manner precluded from contesting its operation...... Under these views, and without decid- ing upon the effect of legislative divorces so far as they may operate upon the personal relations and abilities or disabilities of the parties, we conclude, that the divorce in this case is inoperative as respects the rights of property involved, and cannot deprive the wife of her interest in the estate of her husband, as it would have existed had there been no di- vorce.”’ 2 § 797. Upon this case it may be observed, that the claim which the woman sought in her supplemental bill to enforce, depended solely upon her being his widow; that is, upon the vinculum of the marriage having been in force at the time of his death ;* so that, if the legislative divorce was valid for any purpose, it must have defeated this suit. If we admit, there- fore, the authority of this case, we must consider it either as having been decided on the ground of fraud,‘ or as assert- ing the principle, which certainly appears highly reasonable, that the legislature cannot constitutionally grant a divorce to a party who has, at the same time, a suit for that purpose pending in the courts. § 798. We have seen, that a legislative divorce is a law, a judicial one, a decree; that’ a statute cannot divest vested rights, but a sentence of court may.’ The legislature, there- fore, cannot in its divorce act divest the husband of vested 1 Ante, § 697. 2 Gaines v. Gaines, 9 B. Monr. 295. See also Jones v. Jones, 7 Legal In- telligencer, 19, 1 U. S. Mo. Law Mag. 300, 2 Jones, Pa. 350; ante, § 795. 5 Ante, § 661; post, § 798; Levins v. Sleator, 2 Greene, Iowa, 604. * And see Richardson v. Wilson, 8 Yerg. 67, where Peck, J., intimates a query as to the constitutional validity of a legislative divorce granted on the petition of the husband, and a hearing ex parte, without notice to the wife. The divorce however was treated as valid, neither party seeking to draw it in question. 5 Ante, § 664, 781, 784, 787, 788, 792, 794. , [784] CHAP. XXXIII.] LEGISLATIVE DIVORCES. § 799 rights of property, and bestow them upon the wife. It can- not give the wife alimony, or any thing in the nature of ali- mony, out of the estate of the husband But as it snaps the vinculum of the marriage, whatever hangs upon it falls. Thus if the man dies, the woman will not be his widow; nor entitled as such tg dower and a portion of his personal prop- erty? He will not, on her death, be authorized to hold her lands as tenant by the courtesy ; but, on the contrary, his in- terest and that of his grantees and representatives, in them, and in her choses in action,‘ ceases immediately. This is not a divesting of vested rights. “ As well might it be urged, that a law annexing the punishment.of death to a crime, should it happen to be committed by a tenant for life, was retrospective, and divested vested interests; because it de- prived purchasers or creditors, under such tenants for life, of their estates.” 6 § 799. Upon the view we have taken.of this question, there may arise the further doubt, whether the legislature can so dissolve a voidable marriage that it will afterward be re- garded as having been void in law from the beginning, — which is the common consequence of a judicial sentence of nullity. Looking at this query in the light of principle, — we have seen,’ that the reason why the marriage is voidable (when it is so) instead of void, is, because the courts have no jurisdiction to, inquire into the impediment in a collateral proceeding; but, if they had, it would be void. Why, there- fore, may not the legislature, which can always enlarge the 1 Crane v. Meginnis, 1 Gill & J. 463; Holmes v. Holmes, 4 Barb. 295, 301; Townsend v. Griffin, 4 Harring. Del. 440; The State v. Fry, 4 Misso. 120, 193; Jackson v. Sublett, 10 B. Monr.467. See, however, Berthelemy v. Johnson, 3 B. Monr. 90; West v. West, 2 Mass. 223 ; post, § 805-807. 2 Ante, § 661; Levins v. Sleator, 2 Greene, Iowa, 604. 2 Ante, § 664, 666. * Ante, § 668. 5 Starr v. Pease, 8 Conn. 541; Townsend v. Griffin, 4 Harring. Del. 440. 5 Daggett, J., in Starr v. Pease, supra; ante, § 664, 665, 731. 7 Ante, § 50, 51. 66* [785] § 802 THE AUTHORITY OVER DIVORCE. [Book vir. . remedy at pleasure, authorize the judicial tribunals to take cognizance of this matter as well in a collateral, as a direct, proceeding? And thus the legislative act would be made to have something like the effect of a sentence of nullity ; that is, it would practically transform the marriage from a void- able to a void one; yet it might not, as to the past, estop in- quiry, like the decree of a court. The point, however, has not received judicial elucidation. § 800. We have seen, that the legislative divorce may be, and sometimes is, from bed and board;? yet that it cannot embrace also a provision for alimony? § 801. There remains a question, which was reserved for this place, not because it belongs here in the order of our ar- rangement of subjects, but because it depends upon some of the same principles we have just discussed; so that it could not have been profitably examined before. It is, whether the legislature can constitutionally empower the courts to grant divorces for offences for which the law furnished either no remedy, or one of a different nature, at the time they were committed. This question presents itself in a variety of forms; the most frequent form is, where a new cause of di- vorce is created, and the statute embraces either directly or by implication cases already in existence. § 802. In the first place, and without reference to the con- stitutional question, it appears to be the doctrine on the whole best sustained by authority, that no statute will be construed to include past offences, unless there is something upon its face distinctly indicative of this intention Thus an act 1 See Guilford v. Oxford, 9 Conn. 321. 2 Ante, § 769. 8 Ante, § 798. * Jarvis v. Jarvis, 3 Edw. Ch. 462; Sherburne v. Sherburne, 6 Greenl. 210; Given v. Marr, 27 Maine, 212; Boott v: Scott, 6 Ohio, 534. See also Head v. Ward, 1 J. J. Marshall, 280; Briggs v. Hubbard, 19 Vt. 86; Miller [786 ] CHAP. XXXII. ] LEGISLATIVE DIVORCES. § 803 which provided, “ that divorces from the bond of matrimony shall be decreed in case either of the parties shall wilfully de- sert the other” for a period specified, was held to apply only where the entire desertion occurred subsequently to its becom- ing a law! And a provision, “ that divorces from the bonds of matrimony shall be decreed in favor of the innocent party, when the other shall be convicted of a felony, and actually imprisoned for the same,” was construed not to authorize a divorce where the conviction and imprisonment took place before its enactment.2, But a statute of Massachusetts hav- ing declared, “that, when any woman shall hereafter be di- vorced from the bond of matrimony, for the cause of adul- tery committed by the husband, .... the court, by whom such divorce may be decreed, shall have power to assign to her, for her own use, all the personal estate which the husband hath received by reason of the marriage, or such part thereof as shall be just and reasonable,” this was held applicable as well where the adultery was committed before, as after its passage.3 § 803. Though the weight of authority may preponderate in favor of the rule stated in the first period of the last sec- tion, there is room for doubt whether this is correct in princi- ple. An act regulating divorces would seem to be an expres- v. Commonwealth, 5 Watts & §. 488; Fultz v. Fox, 9 B. Monr. 499. See ante, § 664. 1 Stat. of Maine, 1829, c. 440; Sherburne v. Sherburne, 6 Greenl. 210. ? Greenlaw v. Greenlaw, 12 N. H. 200. 3 West v. West, 2 Mass. 223. Where the statute was, that, ‘‘ whenever a final judgment in any criminal case shall be reversed by the Supreme Judi- cial Court upon a writ of error on account of error in the sentence, the court may render such judgment therein as should have been rendered, or may remand the case for that purpose to the court before which the convic- tion was had,” Mass. Stat. 1851, c. 87, the court construed it to apply to judgments rendered before its enactment; and held, that such application was no violation of either any constitutional provision, or natural right. Jacquins v. Commonwealth, 9 Cush. 279. Yet see Watkins v. Haight, 18 Johns. 138.) [ 787 ] § 805 THE AUTHORITY OVER DIVORCE. [Book VII. sion of the legislative will concerning the status which it is fit for persons to bear, after the facts specified have transpired ; and, therefore, the same reasons which would make the stat- utory direction applicable to future transactions would seem to render it equally so to past! The law, indeed, may be presumed to have been framed as much with reference to the present as the future. In questions of mere private right, a different reasoning would apply; for it would be unjust to settle the claims of individuals by a rule that did not exist at the time the facts occurred, and, therefore, the legislature could not be presumed so to intend. But the primary object of di- vorce laws is to regulate the order of society, and purify the fountains of morality; though the suit itself is, as between the parties, a private controversy.2 And this view is not alto- gether unsupported by authority? § 804. When a statute is intended to apply to facts al- ready existing, evidently the question of the constitutionality of this application is in principle the same which we have discussed, in considering whether legislative divorces violate the provisions against laws impairing the obligation of con- tracts, and retrospective laws. But obviously the case would not be that of one jurisdiction undertaking to dis- charge the functions of another.6 It would therefore follow, that the courts under such a statute may constitutionally grant the divorce, yet that they can make no decree divesting vested rights.” § 805. Yet it was held in Massachusetts, under an act to 1 And see ante, § 149. 2 Ante, § 297-303. 3 Elwell v. Elwell, 32 Maine, 337. * Ante, § 771-775. 5 Ante, § 776-785. S Ante, § 786-792. ” Ante, § 798. But see post, § 805, 807. [788 ] CHAP, XXXIII.] LEGISLATIVE DIVORCES. § 806 which we have already referred,! that, although the offence was committed previous to its passage, the court might still restore to the wife her personal property, which had vested in the husband. Sedgwick, J., observed: “ By an intermarriage, the husband and wife, during the coverture, have, as a joint fund for their mutual benefit, the property which previously belonged to each, and also that which afterwards comes by either; and they have an inchoate title, which is consum- mated on survivorship, to certain proportions of this joint fund. The legislature had an unquestionable right to pre- scribe what part of this joint fund shall go to each party in the event of a separation by divorce.”* A decision based upon a statement of law so entirely inaccurate as this, can have little authority. In like manner it has been held, that, if the legisla- ture authorize the court to investigate a particular case, and grant, on the cause being established, a divorce from the bond of matrimony, and thereupon make provision out of the hus- band’s estate for the support of the wife, this is within its power and discretion; and the court may, under the act, in- vest the wife with the title to a tract of land which was the husband’s.2 § 806. On the other hand, it has been adjudged, that the legislature cannot authorize the courts even to dissolve the vinculum of the marriage, for a cause which has already tran- spired. Such a law, it was said, is retrospective and void.* And in one case the court laid down the very singular doc- trine, that a statute of this nature is unconstitutional as being an ex post facto law} Still the opinion we have con- 1 Ante, § 802. 2 ‘West v. West, 2 Mass. 223. ® Berthelemy v. Johnson, 3 B. Monr. 90. * Clark v. Clark, 10 N. H. 380; Jarvis v, Jarvis, 3 Edw. Ch. 462; Given v. Marr, 27 Maine, 212, 222; Sherburne v. Sherburne, 6 Greenl. 210; Greenlaw v. Greenlaw, 12 N. H. 200. 5 Dickinson v. Dickinson, 3 Murph, 327. [ 789 ] § 807 THE AUTHORITY OVER DIVORCE. [BOOK VII. sidered, as having the better foundation in principle, rests also upon a pretty good basis of judicial authority? § 807. On this subject, the view taken by the court in Ten- nessee is worthy of consideration. A statute newly provided, that, when “any person hath been or shall be injured” by the husband or wife’s commission of adultery, &c., the innocent party shall be entitled to a divorce. A suit having been brought under this enactment, for adultery committed before it became a law, the defendant set up in defence the clause of the Constitution of the State, that “no retrospective law, or law impairing the obligation of contracts, shall be made.” The court overruled the point, and Overton, J.,in delivering the opinion, observed, among other things, as follows: “ There is certainly a distinction between an act which is malum in se, and one which is in its own nature indifferent. The legisla- ture ought to be competent to modify the means of suppress- ing vice, or affording a more competent remedy, when requi- site. Adultery, by the law of nature, is an offence. It was so before the passage of this act, and an evil in any possible view of the subject. The act, by affording relief for a matter which was criminal in itself, must be considered as so far remedial, and not ex post facto, as has been contended. Blackstone and other writers define an ex post facto law to relate to public punishment; and this certainly was the sense in which the framers of the Constitution received it, else — why make use of retrospective also? This part of the act may in a general sense be called retrospective, but in legal phraseology it cannot be called ex post facto. In my view of the Con- stitution, it cannot be construed in violation of it. The Con- stitution says, that‘no retrospective law, or law impairing the obligation of contracts, shall be made’ Retrospective here was inserted from abundant caution. It was intended 1 Ante, § 804. 2 Jones y. Jones, 2 Overt. 2; Berthelemy v. Johnson, 3 B. Monr. 90; West v. West, 2 Mass. 223; Smith v. Smith, 3 S. & R. 248. [ 790 } CHAP. XXXIII.] LEGISLATIVE DIVORCES. § 807 to embrace rights, and not modes of redress. The last, from the nature of things, must be left open to legislative modifi- cation. It is not possible for me to suppose, that any body of enlightened men ever intended to put it out of the power of the legislature to provide a remedy for many past transac- tions, which the immutable principles of justice might require ; such an institution must suppose absolute foresight in man, which we all know is not one of his attributes. The wisest government that ever existed could not possibly foresee many evils which might require a remedy consistent with justice and the law of our nature. The legislature [constitution ?] as it appears to me, meant that the word retrospective should be restrained, in its acceptation, to contracts, but not marriage contracts, they being incapable, in their very nature, of the application of such a principle.” } 1 Jones v. Jones, 2 Overt. 2. And see the reasoning of the court in Ber- thelemy v. Johnson, 3 B. Monr. 90. [791 ] INDEX TO CASES CITED. In the following Index, where the plaintiff is the King or Queen (Rex, Reg., or Re- gina), the State, Commonwealth, United States, or the like, the name of the defendant is put first; in other cases, the name of the plaintiff. A. SEcTION Adams v. Hurst (9 La. 243) 381 Adamson, Rex v. (Say. 56) 314 Addicks, Commonwealth v. (5 Binn. 520) 637 , Commonwealth v. (2 S. & R.174 637 Addison v. Bowie (2 Bland, 606) 632 Ahrenfeldt v. Ahrenfeldt (Hoff- man, 47) 506,511, 512, 520,537 v. Ahrenfeldt (Hoff- man, 497) 633, 634, 636, 638 Aldis v. Chapman (1 Selw. N. P. 11th ed. 298) 5294 Aleson v. Aleson (2 Lee, 576) 245,254 Allan v. Young (here: 37) 112 Allen v. Aldrich (9 Fost. N. H. 63) 529 a v. Allen (Hemp. 58) 582 v. Allen (6 Rob. La. 104) 151 v. Coster (1 Beav. 202) 633 v. Maclellan (10 Beav. 706 2 * ‘ Maclellan (2 Jones, Pa. 328) 54, 699, 708 Allis v. Billings (6 Met. 415) 189 Almond v. Almond (4 Rand. 662) 21, 264, 456, 515, 553, 555, 558, 591 Altemus’s case (1 Ashm.49) = 675 67 : Section Ames v. Chew (5 Met. 320) 682 v. Norman (4 Sneed, 683) 6 69a Amos v. Amos (3 Green Ch. 171) 576, 593, 612, 613, 615 Amsden v. Amsden (Wright, 66) 522, 620 Anderson v. Anderson (4 Greenl. 100 303, 444 Angier v. Angier (1 Gilb. Ch. 152 550, 551 Angle v. Angle (12 Jur. 525) 342, 345, 346 v. Angle (1 Robertson, 634) 368, 410, 411 Anichini v. Anichini (2 Curt. Ee. 210) 332, 345, 406, 528 Anonymous (Deane & Swabey, 295) 57, 243, 254, 3164 2Des.198) 557, 559 4 Des. 94) 491, 555, 635, 637, 640 - (22 Eng. L. & Eq. 237, 248 553 637) —— (1 Hayw. 347) (5 How.N. Y. Pract. 301 388 306 —— (Lofft, 314) (27 Maine, 563) 542, 545 [793 ] AYR Anonymous (5 Mass. 197) 742 “———_——— (6 Mass. 147) 354, 357, 358 ST id £55 682 ——_—— (4 Pick. 32) _ 178, 185 ——_—— (2 P. Wms. 75) 18 —— (2 Show. 282) 551 —— (2 Sim. n.8. 54; 11 Eng. L. & Eq. 281) 446, 633, 637 (19 Wend. 16) 633 Anstey v. Manners (Gow, 10) 647, 651 Arbery v. Ashe (1 Hag. Ec. 914) Arden, State v. (1 Bay, 487) -Arendell ». Arendell (10 La. Ann. 566) Arkley v. Arkley (3 Phillim. 500) 391, 431 ‘Armant v. Her Husband (4 La. 184 250 151 Ann. 137) 461 Armstrong v. Armstrong (32 Missis. 279) 307, 318, 364, 368 442, 620 v. Hodges (2 B. Monr. 69) 94 v. M’Ghee (Addison, 261) 76 Arnold v. Earle (2 Lee, 529) = 191 Arthur v. Gourlay (2 Paton, 184) 460, 510 Ashbaugh v. Ashbaugh (17 Ill. 476) 531, 729, 765 . Ashe’s case (Pr. Ch. 703) 189 Ashton v. Ashton (1 Ch. R.164) 551 Astley v. Astley (1 Hag. Ec. 714) 391, 398, 434, 449 Atkins v. Atkins, 257, 328, 447, 462, reported 465, note, 483, 485, 486 Atkinson v. Atkinson (2 Add. Ec. 484) v. Barnard (2 Phillim. 447 316) 689 Auditor, People v. The (1 Scam. 537) 778, 783 Aughtie v. Aughtie (1 Phillim. 201) 46, 217, 317, 563, 647 Austin v. Austin (10 Conn. 221) 343, 349 Aveson v. Kinnaird (6 East,188) 673 Ayer v. Ayer (16 Pick. 327) 529 a, 691 Aymar v. Roff (3 Johns. Ch. 49) 194, 196 Ayrey v. Hill (2 Ad. Ec. 206) 184 [ 794 ] INDEX TO CASES CITED. BAR B. B. v. B. (28 Eng. L. & Eq. 95) 226, 231 243 670 223 352 588 B. v. M. (2 Robertson, 580) Babcock v. Smith (22 Pick. 61) Bailey v. Fiske (34 Maine, 77) Baily v. Baily (1 Lee, 536) Bain v. Bain (2 Add. Ee. 253 Bainbridge v. Pickering (2 W. Bl. 1325 Baker v. Barney (8 Johns. 72) v. Keen (2 Stark. 501) v. People (2 Hill, N. Y. 632 578 632 325) Ralfour v. Carpenter (1 Phillim. 221) Ball v. Ball (3 Phillim. 147) v. Ball (2 Sim. 35) v. Mannin (3 Bligh, nv. 8. 177 550 657 175 243 633 1 : v. Montgomery (2 Ves. 191) Ballentine Ballenine (1 Halst. Ch. 471) 581 Bancroft v. Dumas (21 Vt. 456) 388 Banfort, State v. (2 Rich. 209) 47 Bankston v. Bankston (27 Missis. 692) 549, Barber v. Barber (1 Chand. 280) 593, 687, 763 v. Barber (4 Law Repor- ter, N. 8. 375) 334, 533, 545 v. Root (10 Mass. 260) 299, 666, 700, 720, 721, 760 Barden v. Barden (8 Dev. 548) 544, 547 Barker v. Barker (2 Add. Ec. 285) 332, 347 v. Dixie (Cas. temp. Hardw. 264) Barlee x. Barlee (1 Add. Ee. 301) 277,454, 459, 502, 528, 529 Barnes v. Barnes (Wright, 475) 357, 369, 524 v. Camack (1 Barb. 392) 673 v. Wyethe (2 Wms. Vt. 41) 83, 1035 Barney v. Dimmitt (Wright, 44) 181 Barnhard, State v. (2 West. Law Jour. 301; Page on Div. 153) 485 Barnsley, Ex parte (3 Atk. 168) 177 Barr v. Fairie (Fras. Dom. Rel.) 113 Barratt v. Buxton (2 Aikens, 167) Barrere v. Barrere (4 Johns. Ch. 187) 21, 27; 277, 295, 475, 612, 620, 634, 636, 637, 640, 679 606 673 181 BEN Barrs v. Jackson (1 Y. & Col. C. C. 585) 694, 703 Barry v. Barry (1 Hopkins, 118) 301 Bartlett v. Bartlett (Clarke, 460) 568, 572, 579 Bascom v. Bascom (Wright, 632) 313, 485, 495, 552, 636 Bascomb v. Bascomb (5 Fost. N. H. 267) 235 Bashaw ». State (1 Yerg. 177) 163 Batchelder v. Batchelder (14 N. H. 380 531, 533, 742 Bates v. Kimball (2 D. Chip. 77) 781 Battey v. Battey (1 R. I. 212) 558, 555, 604 Bauman v. Bauman (18 Ark. 320) 21, 593 Baxtar v. Buckley (1 Lee, 42) 53, 156 Baxter v. Baxter (1 Mass. 346) 306 v. Portsmouth (5 B. & C. 170) 177, 186 Bayard v. Morphew (2 Phillim. 321) 205 Beach v. Beach (11 Paige,161) 431 v. Woodhull (Pet. C. C. 2) 776 Beamish v. Beamish (1 Jur. N. 8. 455) 162, 173 Beard v. Webb (2 B.& P.93) 598 Beatty v. Beatty (Wright, 557) 483 Bedell v. Bedell (1 Johns. Ch. 604) 295, 391, 491, 612, 620, 636, 640 Beeby v. Beeby (1 Hag. Con. 142 397 v. Beeby (1 Hag. Ec. 789): 356, 357, 365, 368, 379, 383, 389, 405, 442 Beekman v. Saratoga and Sche- nectady Railroad (3 Paige, 45) 785 Belcher v. Belcher (1 Curt. Ee. 444) 571, 572 v. Belcher, (Phillim. pamph.) 235 v. State (8 Humph. 63) 541 Bell v. Hallenback (Wright, 751) 632 v. Perkins (Peck. 261) 780 Benadum v. Pratt (1 Ohio State, 403) 687 Bennett v. Smith (21 Barb. 439) 192 — v. State (Mart. & Yerg. 181 v. Stokes (2 Misso. 69) 578 Bennie v. Bennie (11 Scotch Sess. Cas. n. 8. 1211) 7244 Benson v. Remington (2 Mass. 113) 133) 632 INDEX TO CASES CITED. BOD Benton v. Benton (1 Day, 111) 104, 227, 540 Berkshire v. State (7 Ind. 389) 52, 168 Berthelemy v. Johnson (3 B. Monr. 90) 297, 761, 769, 775, 784, 798, 805, 806, 807 Best v. Best (1 Add. Ec. 411; Poynter Mar. & Div. 198) 105, 315, 344, 354, 359, 360, 381, 391, 434, 442, 443, 449, 491, 492 Betcher v. Betcher (cited 2 Phillim. 155) Betts v. Betts (1 Johns. Ch. 197) 306, 307, 434 Bigelow v. Bigelow (Wright, 416 525 Billings v. Billings (11 Pick. 461 Bingham v. Miller (17 Ohio, 445) 761, 775, 792 Bird v. Bird (1 Lee, 209) 579 v. Bird (1 Lee, 418) 612, 615 v. Bird (1 Lee, 572) 571 v. Bird (1 Lee, 621) 205, 563 Birkby v. Birkby (15 Tll.120) 545 Birmingham, Rex v. (8 B. &. C. 29; 2 Man. & R. 230) 103, 167, 175 Bisbing v. Graham (2 Harris, Pa. 14 367 310 673 Bishop v. Bishop (6 Casey, 412) 514 b, 520, 581, 7444 v. Shepherd (23 Pick. Se) 632 Bissell v. Bissell (1 Barb. 430) 583 Blackburn v. Mackey (1 Car. & P.1) 632 Blackham’s case (1 Salk. 290) 700 Blackmore v. Brider (2 Phillim. 359) 216, 217, 298 Blaker v. Cooper (7 8. & R. 500) ; 563, 670 Bland’s case (Macqueen Parl. ' Pract. 605) Blankard v. Galdy (2 Salk. 411) Blaquiere v. Blaquiere (3 Phillim. 258) 612 Blodget v. Brinsmaid (9 Vt. 27) 215 Blowers v. Sturtevant (4 Denio, 46 529 4 Blyth v. Topham (Cro. Jac. 158) 388 B—n v. B—n (28 Eng. L. & Eq. 95) 243 a Bodkin v. Case (Milward, 355) 263, 319, 705 [ 795 ] 400 18 BRE Boggess v. Boggess (4 Dana, 307) 22, 459, 469, 553, 555, 627, 696, 697 Bonham »v. Badgley (2 Gill, 622) : 46, 61 Bonneau v. Poydras (2 Rob. La. 1 686 Bonner v. Montgomery (9 B. Monr. 123) 388 Booth v. Hodgson (6 T. R. 405) 388 Borden v. Fitch (15 Johns. 121) 708, 729, 784, 737, 768 Borlase v. Borlase (4 Notes Cas. 108) -180 Bourne v. Simpson (9 B. Monr. 454) 697 Bowers v. Bowers (19 Misso. ~ 851) 54la Bowic v. Bowic (3 Md. Ch. 51) 368, 371, 455, 459, 469 Bowzer v. Ricketts (1 Hag. Con. 218) 694 Boyd v. Boyd (Harper, 144) 494 Boykin v. Rain (28 Ala. 332) 666 Boyle v. Boyle (Comb. 72; 3 Mod. 164) Bradford v. Brooks (2 Aikens, 446 284) 781 Bradley v. Bradley (2 Fairf. 367) 444 v. State (Walk. Missis. 156) 485 Bradshaw v. Heath (13 Wend. 407) 721, 734 v. State (1 Yerg.177) 167 Brady, State v. (9 Humph. 74) 223 Brainard v. Brainard (Wright, 354) 313, 328, 520 Brampton, Rex v. (10 East, 282) 18, 188, 141 Bramwell v. Bramwell (3 Hag. Ec. 618) 361, 363, 374, 380, 422, 427, 437, 454, 456, 471, 529 163) 446, 462 v. Bray (2 Halst. Ch. 506) 424, 429, 458 Ch. 628) 336, 433, 442 , State v. (13 Ired. 289) 172 Brealy v. Reed (2 Curt. Ec. 833) — 308, 351 Breinig v. Breinig (2 Casey, 161) 497 a, 499 v. Meitzler (11 Harris, Pa. 156) [796 ] Bray'v. Bray (1 Hag. Ec. — v. Bray (2 Halst. 466 INDEX TO CASES CITED. BRU Brett v. Brett (5 Met. 233) 531, 730, 766 Briggs v. Briggs (2 Phillim. 40) 619 Commonwealth v. (16 * Pick. 203) 643 v. Hubbard (19 Vt. 86) 802 v. Morgan (2 Hag. Con. 324; 3 Phillim. 325) 10, 226, 227, 234, 236, 243, 244, 245, 250, 254 Brisco v. Brisco (2 Add. Ec. 259) ' 391, 408 v. Brisco (1 Hag. Ee. 165) 443 v. Brisco (2 Hag. Con. 578, 589, 605, 607, 609, 610, 613, 614 Broadstreet v. Broadstreet (7 Mass. 474) Brogden v. Brown (2 Add. Ec. 441 Bromley v. Bromley (2 Add. Ee. 158; Poynter Mar. & Div. 184) 446, 474 Brook v. Brook (3 Smale & G.) 481) 125, 1314 Brower v. Fisher (4 Johns. Ch. 441) Brown v. Ackroyd (34 Eng. L. & Eq. 214) —— v. Brown (5 Gill, 249; 2 Md. Ch. 316) 529, 530 v. Brown (1 Hag. Ec. 226, 235, 236, 254 v. Brown (2 Hag. Ec. 5) 313, 604, 608, 614 v. Brown (13 Jur. 370) 66 v. Brown (5 Mass. 320) 449 v. Brown (2 Md. Ch. 199) 419 184 182 571 528) 316) 691 v. Commonwealth (2 Leigh, 769) 515 v. Johnston (Ferg. Con- sist. Law, Rep. 229). 184 Browne v. Burns (5 Scotch Sess. © Cas. N. 8. 1288) 72, 570, 579, 581 Browning v. Headley (2 Rob. Va. 340) 668, 669 —— v. Headley (1 Sim. & S. 250) 684 ——_—— v. Reane (2 Phillim, 69) 176, 178, 183, 184, 185, 187, 689 Brownsword v. Edwards (2 Ves. sen. 243) Bruce v. Burke (2 Add.Ec. 471) 205, 446 706 BUT Bruere v. Bruere (1 Curt. Ec. 566 573, 606 Brunswick v. Litchfield (2 Green]. 28) 163, 781 Bryant v. Bryant (Wright, 156) 423 Bryson v. Bryson (17 Misso. 350 784, 792 v.'Campbell (12 Misso. 498) 774, 784 Buckland, People v. (13 Wend. 592) 444, 446 Buckley, State v. (2 Harring. Del. 552) Buffaloe v. Whitedeer (3 Harris, Pa. 182 670 Buller v. Freeman (Amb. 301) 138 Bullock v. Zilley (Saxton, 489) 671 Bunting v. Lepingwel (4 Co. 29 ; Sir F. Moore, 169) Burchet v. Burchet (Wright, 161) 423 Burditt v. Grew (8 Pick. 108) 20 Burgess v. Burgess (1 Hag. Con. 384) 6, 60, 131, 217, 298 v. Burgess (2 Hag. Con. 308, 309, 312, 334, 422, 494, 438, 449 Burk v. Phips (1 Root, 487) 632 Burke, Reg. v. C Crawf. & Dix C. C. 96 57 Burn v. Farrar (2 Hag. Con. 369) 141 Burr v. Burr (7 Hill, N. Y. 207) 549, 589, 592, 603, 612, 620 -y. Burr (10 Paige, 20) 21, 24, 369, 374, 375, 376, 601, 687 Burrett v. Booty (8 Taunt. 343) Burrows v. Burrows, (1 Hag. Ec. 109) 485 700 223) 578 180 ——-— v. Jemino (2 Stra. 733) 658 Bursler v. Bursler, (5 Pick. 427 593, 604, 612 Burt v. Hurlburt (16 Vt. 292) 666 Burtis v. Burtis (1 Hopkins, 557) 21, 22, 99, 104, 227, 264, 274 Burton, Commonwealth v. (Re- corder’s Decisions, 83) Burton-upon-Trent, Rex v. (3 M. & S. 587) 115 Bury’s case (5 Co. 98) 54, 57, 236 Bush v. Brainard (1 Cow. 78) 388 Butler v. Butler (1 Lee, 38) 570, 587 v. Butler (4 Litt. 201) 22, 524, 553, 555 ——- vv. Butler (Milward, 56) 267 67* 415 INDEX TO CASES CITED. CAN Butler v. Butler (Milward, 629) 612, 614 v. Butler (1 Parsons, 329) 397, 454, 455, 459, 466, 468, 470, 504, 511, 518, 526, 576 v. Forbes (Ferg. 209) 724, 726 v. Gastrill (Gilb. Ch. 156) 4, 50, 131, 215, 217, 219 v. Pennsylvania (10 How. U. S. 402; 3 Am. Law Jour. $85) 778, 783 Rex v. (Russ. & Ry. 61) . 175 Butterfield v. Forrester (11 East, 60) 388 Byrne v. Byrne (3 Texas, 336) 461, 490 C. C. v. C. (28 Eng. L. & Eq. 603) 459, 463, 468, 470 Cadogan v. Cadogan (2 Hag. Con. 6) 423 Cesar, People v. (1 Parker, 645) 659 Cage v. Acton (1 Ld. Raym. 515) 647, 648, 650 Calder v. Bull (3 Dall. 386) 791 Caldwell v. State (17 Conn. 467) 442 Calef, Commonwealth »v. (10 Mass. 153) 506 Calkins v. Long (22 Barb. 97) 377 Call, Commonwealth v. (21 Pick. 509) Callahan v. Patterson (4 Texas, 61 560 Calvin’s case (7 Co. 1) 140 Cambridge v. Lexington (1 Pick. 506) 126, 658,.659 Cameron v. State (14 Ala. 546). 447, 541 Camp v. Camp (18 Texas, 528) 461, 469, 515 Campbell’s case (2 Bland, 209) 297 Campbell v. Campbell (Deane & Swabey, 285) ———— v. Hall (Cowp. 204) ————_ v. Honyman (8 Scotch Sess. Cas. 1039; 5 Wilson & Shaw, 92) v. Sassen (2 Wilson & Shaw, 309) 75, 75a, 570, 579 ———— ». State (23 Ala. 44) 429 Canady v. George (6 Rich. Eq. 103) [HF] 415 365 140 974 285 CHE Cannon »v. Alsbury (1 A. K. Mar- shall, 76) 167, 168, 174, 191 Canovar v. Cooper (3 Barb. 115) 632 Carden v. Carden (1 Curt. Ec. 558) 738 Carpenter v. Carpenter (Mil- ward, 159) 463, 465, 466, 485 Carter v. Carter (6 Mass. 263) 742 Cartwright v. Cartwright (19 Eng. L. & Eq. 46) 529, 672, 691 v. Cartwright (1 Phil- lim. 90) “180, 184 Cason v. Cason (15 Ga. 405) = 578 Catherwood v. Caslon (18 M. & W. 261; 8 Jur. 1076) v. Caslon (13 M. & 173 162 W. 264) Caton v. Caton (13 Jur. 431) 328, 339, 381, 429, 424, 426, 428, 429, 453 Catterall v. Catterall (1 Robert- son, 580) 9, 18, 162, 168, 316 v, Sweetman (1 Robert- son, 304) . 162, 167, 168, 170 Cattison v. Cattison (10 Harris, _ Pa, 275) 498, 526 Caudrey’s case (5 Co. 1) 7 Cayford’s case (7 Greenl. 57) Chadwick, Reg. v. (12 Jur. 1745. 11 Q. B. 173) 60, 205, 217 Chamberlain v. Chandler (3 Ma- son, 242) Chamberlaine v. Hewson (5 Mod. 436 10 70) _ 682 _Chambers v. Chambers (1 Hag. Con. 439) 395, 423, 428, 443 —— »v. The Queen’s Proctor (2 Curt. Ec. 415) 180, 184 Chancellor Kent (2 Kent Com. 100) 299 Chapman v. Commonwealth (5 hart. 427) 397 Charles River Bridge v. Warren Bridge (7 Pick. 344) Charruaud v. Charruaud (1 N. Y. Leg. Obs. 134) 662, 670, 672 Chase v. Smith (5 Vt. 556) 632 Cheatham v. Cheatham (10 Misso. 296) 541 a, 459, 462 Chegaray, People v. (18 Wend. 637 793 633 Cheney v. Arnold (15 N. Y.345) 914 Cheseldine v. Brewer (1 Har. & MeH. mae 163 Chettle ». Chettle (3 Phillim. 507) 391, 398! [798 J INDEX TO CASES CITED. CLO Chichester v. Donegal (1 Add. Ec. 5) 729, 788 Chick v. Ramsdale (1 Curt. Ec. 4 51, 298 34) Choate v. Choate (3 Mass. 391) 742 Chrewe’s case (Macqueen Parl. Pract. a 171 Christian v. Christian (13 Scotch Sess. Cas. n. 8. 1149) 724 Christianberry v. Christianberry (3 Blackf. 202) 366, 391, 396, 399 Chunn v. ‘Chunn (Meigs, 131) 608, 612, 621, 622 Ciocci v. Ciocci (26 Eng. L. & Eq. 604) 830, 434, 442, 449, 470, 471 Clark v. Clark (8 Cush. 385) 659 v. Clark (8 N. H. 21) 740, 742, 743, 760 v. Clark (10 N. H. 380) 274, 299, 300, 774, 806 v. Clark (6 Watts & S. 85) 292, 549, 597, 598, 661, 680, 681, 687, 689, 763 v. Clark (Wright, 225) 522, 620, 636 v. Field (13 Vt. 460) 83, 86, 99, 115, 122, 264 Clarke v. Hankin (2 Phillim. 328) 175 v. Lott (11 Ill. 105) 672, 700 v. McCreary (12 Sm. & M. 347) 668, 781 Clayton v. Wardell (4 Comst. 230; 5 Barb. 214) 163, 164, 324 Cleaver v. Woodbridge (2 Phillim. 362) 298 Clement v. Beard (5 Mod. 448) 217 — v. Mattison (3 Rich. 93) 181, 513, 529. Clendenning v. Clendenning (15 Mart. La. 438) Clews v. Bathurst (2 Stra. 960) 700, 705 Clifton v. Davis (1 Parsons, 31) 181 Clinton v. York (26 Maine, 167) 633 Cloborn’s case (Hetley, 149) 481 Cloncurry’s case, Lord (Cruise on Dignities, 276; Wadd. Dig. 238 Clover, State v. (1 Harrison, 19 208 134 633 Clowes v. Clowes (3 Curt. Ee. 185) 103, 115 v. Clowes (9 Jur. 856; 4 Notes Cas. 12) 315, 332, 336, 397, 527 CON Clutch v. Clutch (Saxton, 474) 295, 306, 310, 483 Cobbe v. Garston (Millward, 529) 267, 306, 308, 327 Coble v. Coble (2 Jones Eq. 392) 541 a Cochran v. Van Surlay (20 Wend. 365) 778, 787 Cochrane, re (8 Dowl. P. C. 630) 485, 486 Cocksedge v. Cocksedge (1 Rob- ertson, 90) 391, 395, 431, 438 Codd v. Codd (1 Bland, 101) 556 v. Codd (2 Johns. Ch. 141) 550, 634, 636 Coffin v. Dunham (8 Cush. 404) 571, 575 —v. Jones (13 Pick. 445) ° 673 Coglan v. Coglan (cited 3 Bro. . C. 444) 180 Coleman v. Carr (Walk. Missis. 258) Coleman’s case (6 N. Y. City Hall Reporter, 3) 174, 196 Coles v. Coles (2. Md. Ch. 341) 295, 455, 478, 562, 571, 576, 581, 589, 615 Collet’s case (2 Mod. 314) 305 Collett v. Colletti (1 Curt. Ec. 678) 440, 470 v. Collett (3 Curt. Ec. 730, 732, 733, 744 v. Collett (8 Monthly Law Mag. 158; Wadd. Dig. 44) v. Collett (Wadd. Dig. 783 726) 378 38) 440 Collier v. Collier (1 Dev. Eq. 352) 274, 294, 387 Collins v. Blantern (2 Wils. 341) 388 v. Collins (2 Paige, 8) / “572, 615 v. Collins (2 Paige, 9) 634 v. Srunker (1 U. 8. Mo. Law Mag. 114) 632 v. State (14 Ala. 608) 541 Colmer v. Colmer (Mosely, 118) 551, §55 Colvin v. Colvin (2 Paige, 385) 697, 698 Comly v. Strader (Smith, Ind. 75; 1 Cart. Ind. 134) Compton v. Beareroft (Bul. N. P. 114; 2 Hag. Con. 430) Connelly v. Connelly (16 Law Times R. 45; 7 Notes Cas. 444; 2 Robertson, 201; 2 Eng. L. & Eq. 570) 146, 529 664 125 INDEX TO CASES CITED. f CRO Conway v. Beazley (3 Hag. Ee. 639) 127, 700, 706, 708, 720, 721, 724, 748 Conyers v. Kitson (8 Hag. Ec. 556 Cood v. Cood (1 Curt. Ee. 755) 318, 321, 412, 691 Cook v. Cook (1 Barb. Ch. 639) 634, 636, 637 v, State (11 Ga. 53, 56) 415 Cooke v. Clayworth (18 Ves.12) 181 ~v. Cooke (2 Phillim. 40) 562, 581, 589, 603, 604, 607, 609, 613, 614, 616, 617, 619, 621 Cooper v. Cooper (10 La. 249) 355, 428, 481 v. Cooper (Milward, 373) 730, 733 v. Cooper (7 Ohio, 238) 315,401, 700, 714, v. Martin (4 East, 76, 689 736 84 es Burt (1 Hag. Con. 434) Cornell v. Vanartsdalen (4 Barr, 364) Cornwall vy. Richardson (Ryan & Moody N. P. 305) Cornwell r. State (Mart. & Yerg. 147) Cossan v. Cossan (Wright, 147) Coverdill v. Coverdill (3 Har- ring. Del. 13) 279, 294 Cowls v. Cowls (3 Gilman, 435) 632, 633, 639 Cox v. Combs (8 B. Monr. 231) 52, 210, 658 632 175 673 451 181 514 — v. Cox (3 Add. Ec. 276) 593 Cram v. Burnham (5 Greenl. 218) 163 v. Cram (6 N. H. 87) 537 Crane v. Meginnis (1 Gill & J. 463) 37, 553, 555, 563, 567, 739, 791, 792, 793 Craton, State v.(6 Ired. 164) 486 Creswell v. Cosins, (2 Phillim. 281) Crewe v. Crewe 128) 175 (3 Hag. Ec. 311, 314, 342, 844, 346, 348, 349, 350, 351, 360, 447 v. Crewe (3 Hag. Ec. 137) Croft v. Croft (3 Hag. Ec. 310) 339, 349, 426, 429, 433, 449 Cropsey v. Ogden (1 Kernan, 228 659 a Cross v. Cross (3 Paige, 139) 297, 808, 645 [799 ] 342 DAR Crow v. Crow (23 Ala. 583) é 511, 518, 516 Crowley, State v. (13 Ala. 172) 433, 449 Cruger v. Douglas (4 Edw. Ch. 433) 279 ——— v. Heyward (2 Des. 94) 632 Crump v. Morgan (3 Ired. Eq.) 91) 21, 176, 177, 187, 188 Cullen, Reg v. (9 Car. & P. 681 204 Cunningham v. Cunningham (2 Cart. Ind. 233) 661, 663 v. Irwin (7 8. & BR. 247) 513, 560, 578 Cunninghams v. Cunninghams (2 Dow, 482) Currie v. Turnbull (Hume, 373; 1 Fras. Dom. Rel. 154) ‘Curtis v. Curtis (5 E. F. Moore, 252; 10 Jur. 165) 448 —— tv. Hobart (41 Maine, 230) 533 78 86 D. Dacosta v. Villa Real (2 Stra. 961) 700, 705 Daggett v. Daggett (5 Paige, 509) 301, 595 . D’Aguilar v. D’Aguilar (1 Hag. Ec. 773) 816, 330, 354, 862, 363, 365, 368, 371, 378, 374, 376 410, 420, 454, 456, 463, 466, 472, 478, 476, 481, 487, 529, 571, 572 Daiger v. Daiger (2 Md. Ch. 335) 455, 459, 491, 571, 576, 581 Dailey v. Dailey (Wright, 514) 422, 428, 565, 637 Dakins vy. Seaman (9 M.& W. 777) 4 Dalrymple v. Dalrymple (2 Hag. Con. 54) 7, 8, 63, 65, 67, 73, 74, 78, 87, 88, 89, 90, 91, 99, 182, 142, 146, 153, 158 Dalton v. Bernardston (9 Mass. 201) 670 Damon’s case (6 Greenl. 148) 163, 171 Dance v. Dance (1 Hag. Ec. 794) 365, 368 D'Arcy v. Ketchum (11 How. U.S. 165 713 Darden v. Joyner (9 Ired. 339) 599 Dartmouth College v. Woodward, (4 Wheat. 518) 761, 771 [800 J INDEX TO CASES CITED. DEN D’Arusmont v. D’Arusmont (4 Law Reporter, N. 8. 311; 8 West. Law Jour. 548) 552, 567,. 569, 581, 583, 615, 629 Dasent v. Dasent (1 Robertson, 800) 730, 733 David v. David (27 Ala. 222) 476, 494, 4974 Davidson v. Davidson (Deane & Swabey, 132) 422, 427 Davies, in the goods of (2 Curt. Ec. 628) Davis v. Davis (21 Law Report- er, 362) . 5374 v. Davis (Poynter, Mar. & Div. 261) ——~ v. Dawes (4 Watts & S. 401) 689 572 783. v. Newton (6 Met. 537) 608, 684 Davol v. Davol (13 Mass. 264) 563 — v. Howland (14 Mass. 219) 663 Dawes v. Howard (4 Mass. 97) 632 Dawson v. Dawson (2 Phillim. 40) 619 v. Dawson (7 Ves. 173) 596 Day v. Day (3 Green Ch. 444) 423 —- v. Everett (7 Mass. 145) 632 Days v. Jarvis (2 Hag. Con. 172) ek Dean v. Richmond (5 Pick. 461) 563, 630, 679, 680, 682, 686, 687 Deane v. Aveling (1 Robertson, 279) 8, 226, 230, 231, 232, 245, 257, 258 v. Deane (12 Jur. 63) 310, - “359, 744 De Blaquiere v. De Blaquiere (8 Hag. Ec. 322) 578, 591, 593, 594, 595, 609, 612 Dedham v. Natick (16 Mass. 135) 632 Deerfield v. Arms, (20 Pick. 480) 173 Dejarnet v. Dejarnet (5 Dana, 499) 401, 612, 625 Delaval, Rex v. (8 Bur. 1434) 633 Delliber v. Delliber (9 Conn. 238) 299, 357, 358, 864, 368 De Manneville v. De Manneville (10 Ves. 52) 175 633 Rex v. (5 East, 921) Den v. Moore (2 Southard, 470) 388 Dennis v. Clark (2 Cush. 847) 632 633 DON Denniss v. Denniss (3 Hag. Ec. 348) Denny v. Ashwell (1 Stra. 52 Denton v. Denton (1 Johns. Ch. 364) 529 615 v. English (3 Brev. 147) 285 Depas v. Mayo (11 Misso. 814) 151 Devaismes v. Devaismes (3 Code Reporter, 124; 3 Am. Law Journal, N. s. 279 491, 612 Devall v. Devall (4 Des. 79) 288, 442 Devanbagh v. Devanbagh (5 Paige, 554) 21, 24, 234, 235, 236, 239, 251, 252, 254, 259, 306 ————-_ v. Devanbagh (6 Paige, 175) 235 Dew v. Clark (1 Hag. Ee. 311) 689 De Wurtz v. Hendricks (2 Bing. 314 Diekepson v. Blisset (1 Dick. 268) 388 182 ————- v. Mavie (2 Dick. 582) 569 Dickerman v. Graves (6 Cush. - 308 673, 674 Dickinson v. Dickinson (3 Murph. 327) 22, 274, 299, 806 Dickson v. Dickson (1 Yerg. 110) 31, 35, 129, 300, 657, 658, 659, 700 Dillon v. Dillon (3 Curt. Ec. 86) 330, 335, 342, 344, 358, 359, 361, 362, 381, 385, 391, 395, 426, 429, 448, 448 Ditson v. Ditson (4 R. 1.87) 35a, 713, 721, 736, 736 a, 766 a, Dixon v. Hurrell (8 Car. & P. 717 : Dobbs v. Dobbs (3 Edw. Ch. 377) Dobbyn v. Dobbyn (Poynter 562 382 ‘ Mar. & Div. 233) 359 Dobson v. Butler (17 Misso.- 87) 660 Dodge v. Dodge (7 Paige, 589) 382 Doe v. Breakey (2 Upper Can- ada Q. B. Nn. s. 349) 162 — v. Brown (5 Blackf 309) 666 —— v. Price (1 Man. & R. 683) 175 —-v. Vardill (5 B. & C. 438) 146; 151 Don v. Don (10 Scotch Sess. Cas. N. 8. 1046 Donegal v. 586) Donellan v. Donellan (2 Hag. Ec. ‘Supp. 144) onegal (3 Phillim. 314 INDEX TO CASES CITED. ‘| Dula v. State (8 Yerg. 511) 449 | 733° DUR -| Dorsey v. Dorsey (7 Watts, 349) 299, 700, 730, 734, 742, 743, 759, 760 v. Goodenow (Wright, 120) 571, 576, 585 Dougherty v. Dougherty (4 Halst. Ch. eh 581a Doyle ». Doyle (26 Misso. 545) 463 a, 490, 495, 527, 527 a, 554 Drew v. Canady (1 Mass. 158) 173 -v. Clark (2 Add. He. 102) 446 Droney v. Archer (2 Phillim. . 327) 174, 175: Duberley v. Gunning (4 T. RB. 651) Duins v. Donovan (3 Hag. Ee. 301 175, 205 Duke v. Fulmer (5 Rich. Eq. 121) 760 783 334 Dumaresly v. Fishly (3 A. K. Marshall, 368) 31, 63, 67, 90, 93 125, 163, 166, 167 Dunbar v. Dunbar (Wright, 286) 402 Dunbarton v. Franklin (19 N. H. 257) 163 Duncan v. Duncan (2 Monthly Law Mag. 612) ° ' 821 —v. Duncan (19 Ves. 394) 551 Dunham v. Dunham (6 Law Re- porter, 139) 439, 425 Dunlap v. Dunlap (Wright, 559) 447 Dunn v. Dunn (4 Paige, 425) 506, 697, 732 — v. Dunn (2 Phillim. 403; 3 Phillim. 6) 328, 345, 348 , Reg. v. (12 Ad. & E. 599) 378 Dunnock v. Dunnock (3 Md. Ch. 140) 558, 608 Duntze v. Levett (Ferg. 68, 385) 32, 33, 721, 722, 723, : 724, 726, 740, 746 Dupont v. Johnson (1 Bailey Ch. 274) 632 Dupre v. Boulard (10 La. Ann. 411) 1294 Durand v. Her Husband (4 Mart. La. 174) | 494 Durant v. Durant (1 Add. Ec. 114) 570 v. Durant (1 Hag. Ec. 589, 605, 612, 619 v. Durant (1 Hag. Ec. 733) 15, 345, 846, 354, 357, 363, 368, 372, 373, 374, 376, 381, 383, 385, 459, 462 Durham v. Lewiston (4 Greenl. 140) [ 801 ] 528) 781 EME Durie v. Norris (1 U. 8. Mo. Law Mag. 49) 189 Dyer v. Dyer (5 N. EH. 271) 509, 588 Dysart v. Dysart (1 Robertson, 106 357, 871, 379 v. Dysart (1 Robertson, 470) 410, 452, 454, 456, 462, 463, 468, 469, 470, 476, 479, 487, 494, 495, 498, 529 v. Dysart (1 Robertson, 543) 678 E. Ealer v. Flomerfelt (1 Wheat. Dig. ed. of 1843, 828; 1 Ashm. 53) 674 Earp v. Earp (1 Jones Eq. 239) 381, 387 Eden, Rex v. (Lofft, 72) 388 Edmeston v. Cochrane (1 Fras. Dom. Rel. 153) Edmonstone v. Lockhart (Ferg. 168 Bdwacds v. Crock (4 Esp. 89) — v. Edwards (Wright, 583 — v. Green (9 La. Ann. 317) 527, 741 Edwards v. Pope (3 Scam. 465) 782, 789 Elah v. Leigh (5 T. R. 679) 686 Eldred v. Eldred (2 Curt. Ee. 376 373, 391, 431 Eliot v. Eliot (1 Hag. Con. 299) 434 Ellenthorp v. Myers (2 Add. Ee. 158 446, 474 Ellerton v. Gastrill (1 Comyns, 318) 217 Elliott v. Gurr (2 Phillim. 16) 46, 52, 53, 56,57, 199, 261, 689 436 459 429 86 756 429 308) Ellis v. Ellis (11 Mass, 92) Elmes v. Elmes (9 Barr. 166) Elsam v. Faucett (2 Esp. 562 Elwell, Commonwealth v. (2 Met. 190 415 v, Elwell (32 Maine, 337) 545, 808 Elwes v. Elwes (1 Hag. Con. 269) 314, 362, 382, 883, 487, 449, 447 Elyot’s case (Cart. oe 182 Emery v. Emery (1 Y. & J. 501) 529 a v. Gowen (4 Greenl. 83) 632 [ 802 } INDEX TO CASES CITED. FER Emmett v. Norton (8 Car. & P. 506) 529.4 Emmons v. Emmons (Walk. Mich. 532) 352, 382, 449 Eshbach v. Eshbach (11 Harris, Pa, 348 455, 465, 508, 526 Essex v. Essex (2 Howell St. Tr. 786) 236, 287, 257 Etna, The (Ware, 462 632 Evans v. Evans (5 B. Monr. 278) 697 v. Evans (1 Hag. Con. 35) 100, 277, 297, 800, 325, 452, 454, 457, 459, 462, 465, 466, 468, 470, 473, 478, 487, 488, 492, 602 v. Evans (7 Jur. 1046) 357, 376 v. Evans (1 Robertson, 165) 443, 447 v. Fisher (5 Gilman, 569) Ewing v. Wheatley (2 Hag. Con. 175 Eyre v. Shaftsbury (2 P. Wms. 103) 100 632 F. ‘Fairchild v. Adams (4 Law Re- orter, N. 8. 278) 446 Fales v. Mayberry (2 Gallis. 560) 388 Farwell v. Farwell (31 Maine, 591) 576 Faulder v. Silk (3 Camp. 126) 186 Faussett v. Faussett (18 Jur. 688) - 449 Feigley v. Feigley (7 Md. 587) 808 ellows v. Fellows (31 Maine, 342) 518 v. Fellows (8 N. H. 160) 411, 413, 587, 540, 720, 721, 742 Fenner v. Lewis (10 Johns. 38) 578 Fenton v. Holloway (1 Stark. 126) 181 v. Reed (4 Johns. 52) 163, 205 uson v. Ferguson (1 Barb. . 604) ———— v. Ferguson (3 Sandf. 807) 423, 428 Ferlat v. Gojon (Hopkins, 478) 46, 68, 99, 264 Ferrers v. Ferrers (1 Hag. Con. 180) 346, 354, 366, 374, 410 Ferrier v. Ferrier (4 Edw. Ch. 296) Fer Cc 441 500 FOU INDEX TO CASES CITED. GAI Ferris v. Ferris (8 Conn. 166) . 104, 235 Fickle v. Fickle (5 Yerg. 203) 730, 765 Field’s Marriage Annulling Bill, . (2 H. L. Cas, 48) 107 Fielder x. Smith (2 Hag. Con. 193) : 174, 175 Finch v. Finch (22 Conn. 411) 639 Fink v. Hake (6 Watts, 1381) 668, 669 Finlay v. Finlay (Milward, 575) 612, 614 Finley v. Finley (9 Dana, 52) 455, 459, 481 Fischli_v. Fischli (1 Blackf. 360) 554, 563, 567, 629 Fishli v. Fishli (2 Litt. 337) 303, 508, 513, 522, 530, 567, 576, 612, 620, 625, 629, 730, 744 Fitts v. Fitts (14 Texas, 443) 627 Fitzgerald v. Fitzgerald (1 Lee, 649) 571 Fitzmaurice v. Fitzmaurice (1 Lee, 16) 87 Fletcher v. Morey (2 Story, 555) 20 Fleytas v. Pigneguy (9 La. 419) 476, 479, 494 Flintan, Rex v.(1 B. & Ad. 227) 526 Flower v. Adam (2 Taunt. 314) 388 Fluck v. Tollemache (1 Car. & P.5) 632 Foden v. Finney (4 Russ. 428) 551 Foljambe’s case (3 Salk.137) 767 Folliott v. Ogden (1 H. Bl. 123) 658 Forbes v. Strathmore (Ferg. Consist. Law, Rep. 113) 94 Ford v. Monroe (20 Wend. 210) 632 Ford’s Curator v. Ford (14 Mart. La. 574) 151 Fore, State v. (1 Ired. 378 223 Fornshill »v. Murray (1 Bland, 479) 81,46, 125, 176, 264, 553 Forrest v. Forrest (6 Duer, 102) 662 Forrister v. Watson (6 Scotch _ Sess. Cas. N. 8. 1358) 724 Forster v. Forster (1 Hag. Con. 144) 332, 349, 390, 391, 394, 397, 398, 408, 431, 433, 448, 506, 507 Forsyth v. Kreakbaum (7 T. B. - Monr. 93) 632 Foster v. Means (1 Speer Eq. 569) 176, 177, 178, 187 ‘Foulkes v. Foulkes (Poynter ~ Mar. & Div. 256) 598, 607, 612 Fowler v. Smith (2 Cal. 39) 140 Fox v. Dawson’s Curator (8 Mart. La. 94) 653 Foxcroft’s case (1 Rol. Ab. 359) 198 Foy v. Foy (13 Ired. 90 328, 897, 399, 424, 525, 541 Frakes v. Brown (2 Blackf. 295) 608 Frankfort v. Frankfort (3 Curt. Ee. 715) 589 v. Frankfort (4 Notes Cas. 282) 561, 606, 607 Franklin v. Franklin (7 Jur. 135) 376 Frarell v. Frarell (Wright, 455) 519, 521 Frary v. Frary (10 N. H. 61) 531, 780, 742, 743 Fraser v. Fraser (5 Notes Cas. 20) 428 v. Fraser (Poynter Mar. & Div. 248) 580 Fredd v. Eves (4 Harring. Del. ~ 385) 529 a Freeland v. Freeland (19 Misso. 354) 504 Freeman v. Freeman (3 West. Law Jour. 475) 720, 721 Freigley v. Freigley (7 Md. 537) 604 French v. French (4 Mass. 587) 479 Friend v. Friend (Wright, 639) 328, 352, 513, 520, 530 Frith v. Frith (18 Ga. 273) 105, 579 Fry v. Fry (7 Paige, 461) 565, 683 —, State v. (4 Misso. 120) 831, 757, 772, 774, 784, 792, 798 Fulton v. Fulton (12 Scotch Sess. Cas. 1104) 460 Fultz v. Fox (9 B. Monr. 499) 7738, 802 Fulwood’s case (Cro. Car. 482) 120, 128 Furlonger v. Furlonger (5 Notes Cas. 422) 490 Furst v. Furst (Poynter Mar. & Div. 260) | B72 Fyler v. Fyler (Deane & Swa-- bey, 175) 572 G. Gage v. Gage (2 Dane Ab. 309) 564, 742 Gaillard v. Gaillard (23 Missis. 152) 530 Gaines v. Gaines (9 B..Monr. 295) 511, 559, 562, 565, 697, 784, 798, 794, 796 [ 803 ] Ps GOO Gaines v. Relf (12 How. U. S. 472) 205, 710 Gains v. Buford (1 Dana, 481) 774 Gale v. Gale (2 Robertson, 421) 63, 463 Galwith v. Galwith (4 Har. & McH. 477) Ganer v. Lanesborough (Peake, 17 Ge: v. Gardner (2 Gray, 434) 364, 368, 371, 376 v. Walker (Stra. 503) 558 Garrat v. Garrat (4 Yeates, 244) 299 Gathings v. Williams (5 Ired. 487) 46, 52 Gavin v. Burton (8 Ind. 69) 191 Gee v. Thompson (11 La. Ann. 657) 679, 680 Geils v. Dickenson (20 Eng. L. & Eq. 1; 15 Scotch Sess. N. 8. H. of L. 28) 768 v. Geils (6 Notes Cas. 101) 474 Germond v. Germond (1 Paige, 83 ae v. Germond (4 Paige, 643) 612, 615 Gibert, United States v. (2 Sum- ner, 19) Gill v. Gill (2 Add. Ec. 382) Gilpin v. Gilpin (3 Hag. Ee. 150 342, 349, 413 Girardy v. Richardson (1 Esp. 553 581 446 502 13) 388 Gishwiler v. Dodez (4 Ohio State, 615) 633 Given v. Marr (27 Maine, 212) 661, 664, 802, 806 Glaze, State v. (9 Ala. 283) 541 Gleason v. Gleason (4 Wis. 64) 514 6, 736 Glen, Ex parte (4 Des. 546) 178, 186 Glenn v. Glenn (7 T. B. Monr. 285) 559 Glover v. Glover (16 Ala. 440) 553, 555 Godfrey v. Hays (6 Ala.501) 632 Godwin v. Lunan (Jefferson, 96) 21 Goldsmid v. Bromer (1 Hag. Con. 324) 136 Goodall v. Goodall (2 Lee, 264) 570 v. Goodall (2 Lee, 384) 398 Goodin v. Smith (Milward, 236) 700 Goodwin v. Goodwin (4 Day, 348) 304 —v. Thompson (2 Greene, Iowa, 329) 175, 192 [ 804 ] INDEX TO CASES CITED. GRE Gordon v. Englegraaff (Ferg. 251) 744 — v. Hobart (2 Sumner, 401) 20 — v. Potter (17 Vt. 348) 632, 639 33, 722, 724 , Rex v. (Russ. & Bae) 191 Gore v. Gibson (13 M. & W. 623 Cotes y. Stonington (4 Conn. 209) Gould v. Gould (2 Aikens, 180) 297, 306 v. Webster (1 Tyler, 409) 666 Govane’s case (2 Bland, 570) 553 Governor v. The Rector (10 Humph. 57) 174, 191 Govier v. Hancock (6 T. R. 603) 526, 680 Grace, Slave (2 Hag. Adm. 94) 720 Graecen v, Graecen (1 Green Ch. 459) 295, 456, 462, 466, 479, 495, 497 Graham’s case (2 Lewin, 97) 67, 97a Graham v. Bennet (2 Cal. 503) 163, 173, 207 Grant v. Grant (2 Curt. Ec. 16) 310, 422, 424, 428, 437, 439, 453 v. Grant (10 Jur. 103) . 397, 430 — v. Mennons (Ferg. Con- sist. Law, App. 110) 73, 76 —— v. Swift (4 Johns. 34) 658 Graves v. Cole (7 Harris, Pa. 171) 571, 576 : v. Graves (3 Curt. Ec. 235) 105, 342, 344, 442 v. Graves (2 Paige, 62) 301, 302, 584 Gray v. Gray (15 Ala. 779) 318, 510, 511, 525 Green, Commonwealth v. (17 Mass. one 658, 659 v. Green (7 Ind. 113) 297, 629 - v, Otte (1 Sim. & 8.250) 684 , United States v. (3 Ma- son, 482) Greene v. Greene (2 Gray, 361; 4 Am. Law Register, 42) 699, 706, 709 a v. Greene (11 Pick. 410) 729, 742, 743, 745 Greenhill v. Ford (1 Fras. Dom. Rel. 667) v. Pye (Ferg. 276) 181 776 633 368 HAK Greenhill v. Ford (1 Shaw Ap. Cas. 435) 385 ———— v. Greenhill (1 Curt. Ee. 462) 635 , Rex v. (6 Nev. & M. 244) 633 Greenland v. Brown (1 Des. 196) 558 Greenlaw v. Greenlaw (12 N. H. 200) 742, 802, 806 Greenstreet v. Cumyns (2 Phillim. 10; 2 Hag. Con. 332) 2.47, 256, 258, 352 Greenwood v. Curtis (6 Mass. 358) 180, 182 Gregg v. Wyman (4 Cush. 332) 388 Gregory v. Pierce (4 Met. 478) 506, 520 Gresse v. Gresse (1 Phillim. 210) 594 Griffin v. Griffin (8 B. Monr. 120) 238, 495, 555, 710 | Griffing v. Hopkins (Walk. Mich. 49 Griffiths v. Reed (1 Hag. Ec. 195) Grimani v. Draper (12 Jur. 925) 180, 184 Grigbaldeston v. Anderson (1 Phillim. 147) Phillim. 155) Grindall v. Grindall (3 Hag. Ee. 259) : Grindell v. Godmand (13 Legal Observer, 467; 1 Nev. & P. 168) 571 Grisham y. State (2 Yerg. 589) 163 Groom v. Thomas (2 Hee Ec. 433) Grubb v. Grubb (1 Harring. Del. 516 Guembell v. Guembell (Wright, 226) 519, 760 Guest v. Shipley (2 Hag. Con. 321) 57, 234, 248, 315, 700, 710 Guilford v. Oxford (9 Conn. 321) 104, 227, 799 632 439 245 v. Anderson (3 256 443 184 631 H. Hackney v. Hackney (9 Humph. 450) 303 Hagerty v. Harwell (16 Texas, 663) Haines v. Jefcott (5 Mod. 168; 627 Comb. 356) 216 Hake v. Fink (9 Watts, 336) 669, 700, 706 68 INDEX TO CASES CITED. HAR Hakewell, In re (15 Eng. L. & Eq. 599) ————,, In re (22 Eng. L. & Eq. 395) 633 Halford v. Halford (8 Phillim. 98) 633 314 v. Halford (Poynter Mar. & Div. 200) 348, 443 Hall v. Hall (4 N. H. 462) 357 v. Hall (2 Strob. Eq. 174) 415 —— v. Warren (9 Ves. as 184 Hallett v. Caliing (10 How. U.S. 174) 63, 163 Halsted v. Halsted (5 Duer, 659) 593 Ham v. McClaws (1 Bay, 93) Hamaker v. Hamaker (18 Ill. 187) | 177, 266, 547 Hamerton v. Hamerton (1 Hag. Ee. 23) 588, 589 ——_———- v. Hamerton (2 Hag. Ec. 8) 314, 315, 342, 422, 448, 453 ——— ». Hamerton 3 Hag. Ee. 1) Hamilton, Commonwealth v. (6 Mass. 273) ———— v. Hamilton (1 Bell Ap. Cas. 736; 9 Ol. & F..327) 78, 84, 89 v. Wyllies (5 Scotch Sess. Cas. new ed. 668) Hammond v. Hammond (1 Clarke, 151) 581, 603, 612, 615, _” 617, 618 Hanberry v. Hanberry (29 Ala. 719) 313, 513, 523, 530, 729, 730, 740 776 433 632 48 Hancock v. Merrick (10 Cush. 41) 578, 632 Hanks v. Hanks (3 Edw. Ch. 469) 274, 301, 352, 399 Hanover v. Turner (14 Mass. 227) 720, 721, 736 Hansel v. Hansel (Wright, 212) 313, 760 Hansford v. Hansford (10 Ala. 561) 634, 635, 636 Hansley v. Hansley (10 Ired. 506) 807, 310, 456, 541 Hantz v. Sealy (6 Binn. 405) 46, a 163 Hardin v. Hardin (17 Ala. 250) 525 Harding v. Alden (9 Greenl. ,140) 37, 663, 665, 600, 704, 706, 720, 730, 732, 784, 735, 736, 739, 740, 742 v. Brooks (5 Pick. 244) 451 [ 805 ] HAS Hare v. Hare (10 Texas, 355) 531, 721, 729, 730, 741, 744 Harford v. Morris (2 Hag. Con. 423) 99, 116, 120, 135, 128, 142, 196, 267 Hargroves v. Thompson (31 Missis. ae 163, 167, 174 Harlow v. Humiston (6 Cow. 189) 388 Harman v. Harman (1 Cal. 215) 163, 760 v. Harman (16 Ill. 85) 315, 316 a, 320, 533, 455 Harmar v. Harmar (Deane & Swabey, 282) 593 Harper v. Harper (Wright, 283) 452 Harratt v. Harratt (7 N H. 196) 454, 456, 466 Harrington v. Harrington (10 Vt. 505) 575 Harris v. Ball (2 Hag. Con. 327) 234 v. Ball (3 Phillim. 147) 243 ——— v. Davis (1 Ala. 259) 571, 576 — v. Harris (1 Hag. Ec. 351) 589, 606, 607, 612, 613, 614 —v. Harris (2 Hag. Ee. 376) 307, 308, 332, 334, 342, 391, 427, 428, 437, 439, 449, 453 v. Harris (2 Phillim. 111) 454, 456, 457, 465, 466 — v. Hicks (2 Salk. 548) 52 — v. Morris (4 Esp. 41) 526 Harrison v. Burwell (2 Vent. 9; Vaugh. 206) 47, 50, 181, 217 ————- ». Harrison (19 Ala. 499) 581, 708, 709 a, 720, 729, 730, 736, 760 v. Harrison (20 Ala. 376, 721, 729, 763 ——— »v. Harrison (4 E. F. Moore, 96) 308, 310 ——— v. Southampton (17 Eng. L. & Eq. 364 ; 21 Eng. L. & Eq. 343) ° ~=——-175, 702, 706 629) v. Sparrow (1 Curt. Ec. 1) 256, 260 Hart v. Hart (2 Edw. Ch. 207) 436, 453 Harteau v. Harteau (14 Pick. 181) 531, 536, 712, 730, 740, 742, 760 Harvey v. Inglis (19 Feb. 1839) 118 Harvie v. Inglis (15 Scotch Sess. Cas. 964) Harwood v. Heffer (3 Taunt. 420) 459, 529.4 Hastings v. Orde (11 Sim. 205) 670 [806 J 97a INDEX TO CASES CITED. AIL Hatchett v. Baddeley (2 W. BI. 1079 Hatfield v. Hatfield (stated 20 Howell St. Tr. 395) Hatwell v. Jackson (7 Texas, 576) Hawke v. Corri (2 Hag. Con. 280) 263, 705 Hawkes v. Hawkes (1 Hag. Ec.: 526) 604, 612, 613, 614 Hawson v. Hancock (8 T. R. 575) 388 Hayes v. Watts (2 Phillim. 43) 175 Hazen v. Hazen (19 Vt. 603) 575 Head v. Head (3 Atk. 295) 456, 550, 551, 569 v. Head (3 Atk. 547) 549, 557 v. Head (2 Kelly, 191) 21, 26, 270, 288, 770 v. Ward (1 J. J. Marshall, 280) 802 Headen v. Headen (15 La. 61) 456, 495 Heaviside ». Lardner (3 Law Reporter, 201) 670 Heffer v. Heffer (3 M. & S. 265) 115 Heffner v. Heffner (11 Harris,+ Pa, 104) 205, 206 Helffenstein v. Thomas (5 Rawle, 209) 167, 168 Helms v. Franciscus (2 Bland, 544) 264, 315, 459, 553, 555 Hemming v. Price (12 Mod. 432) 46 Herbert v. Herbert (2 Hag. Con. 271; 3 Phillim. 58) 125, 171 Herman v. McLeland (16 La. 26) 310 Hervey v. Hervey (2 W. BI.877) 321 Hesler v. Hesler (Wright, 210) 516, 530, 552, 760 Hester v. Hester (4 Dev. 228) 673 Hevice, Respublica v. (3 Wheeler Crim. Cas. 505) 64, 99, 128 Hewitt v. Hewitt (1 Bland, 101) 553, 556, 557 Heyward v. Cuthbert (4 Des. 445) Higgins v. Breen Higgs v. Higgs (38 700 207 632 ie Me 497) 653 ag. Ec. 472) 605, 607, 610 Hill v. Good (Vaughan, 302) = 217 — v. Hill (2 Mass. 150) 315, 465 Hills v. Hills (6 Law Reporter, 174) 513, 529 Hillsboro’ v. Deering (4 N. H. 86, 95) 632 HOO Hillyard ¥. Grantham (cited 2 Ves. sen. 246) Hinds v. Hinds (1 Clarke, Iowa, 36) 730, 765 Hinton, State v. (6 Ala. 864) 415 Hoar v. Hoar (3 Hag. Ec. 137) 333, 334, 343, 344 Hobbs v. Hull (1 Cox, 445) 550 Hodges v. Hodges (1 Esp. 441) 515 v. Hodges (3 Hag. Ec. 700 118) 338 v. Windham (Peake, 39) 338 Hodgkinson v. Fletcher (4 Camp. 57 70) 8 ——— ». Wilkie (1 Hag. Con. 262) 175 Hodgskins, State v. (19 Maine, 155) 16 Hodnett, Rex v. (1 T. R. 96) Hoffman v. Hoffman (6 Casey, 417) 105, 697 Hoffmire v. Hoffmire (3 Edw. Ch. 173 375, 382 Hofmire v. Hofmire (7 Paige, 60) 362, 375, 382 Hoggan v. Cragie (Maclean & Bob. 942 87, 95, 97a Holden v. Holden (1 Hag. Con. 453) 454, 465, 466, 469, 479, 495 v. James (11 Mass. 396) 781 Holgate v. Cheney (Brayton, 156 169 Holland v. Cruft (20 Pick. 321) 20 v. Holland (2 Mass. 154 306, 307 Hollerman v. Hollerman (1 Barb. 64) Hollister v. Hollister (6 Barr. 449) 370, 466, 730, 742 Holmes v. Holmes (4 Barb. 295) 37, 38, 562, 563, 593, 668, 683, 739, 781, 784, 785, 792, 798 v. Holmes (6 La. 463) 31, 163, 167, 168, 324 v. Holmes (2 Lee, 90) 571, 572 v. Holmes (2 Lee, 116) 528 v. Holmes (Walk. Missis. 474) 391, 625 Holt v. Clarencieux (2 Stra. 937) 53 v. Ward (2 Stra. 937) 191 Honyman v. Campbell (8 Scotch Sess. Cas. 1039; 5 Wilson & Shaw, 92 84, 97a Hooper v. Hooper (19 Misso. 355) 5376, 5414 174 583 INDEX TO CASES CITED. HUN Hooper, State v. (5 Ired. 201) 223 Hoover v. Heim (71Watts, 62) 632 Hopkins v. Hopkins (3 Mass. 158) Hopper v. Hopper (11 Paige, 46 Horner v. Liddiard (1 Hag. Con. 337) 174, 216 Houliston v. Smith (2 Car. & P. 22; 8 Bing. 127; 10 Moore, 482) 429, 466, 515, 5294 Houlston v. Houlston (23 Ala. 777) Houpt v. Houpt (Wright, 156; Ohio, 539 321 Houston v. Houston (4 Ind. 139) 627 —v. Moore (5 Wheat.1) 658 742 408 541 3 | Hovey, People v. (5 Barb. 117) 657 Howard v. Bartlet (Hob. 181) 53, 217 v. Howard (15 Mass. 687 — v. Whetstone (10 Ohio, 365) 529 Howland, United States v. (4 Wheat. 108) 20 Hubbell v. Hubbell (3 Wis. 662)- 736, 744 v. Inkstein (7 La. Ann. 208 196) 252) Hudson v. Robinson (4 M. & S. 475) Hughes v. Hughes 6 446 (19 Ala. 307) 376, 459, 466, 469 Hulings v. Hulings (2 West. Law Jour. 131 105, 264 Hull v. Hull (15 Jur. 710; 5 Eng. L. & Eq. 589) 99, 107 v. Hull (2 Strob. Eq. 174) 288, 700, 729, 736, 760, 775, 784, 792, 793, 796 Hulme v. Hulme (2 Add. Ec. 27) 465, 466 Humphrey v. Bullen (1 Atk. 458) ————- v. Humphrey (7 Conn. 116) 299, 451 Humphreys, People v. (24 Barb. 521 689 643 Hunt, Ex ge (5 Cow. 284) 215 v. Bell (1 Bing. a 388 —— v. Blaquiere (3 Moore & P. 108) 5294 ——, Commonwealth v. (4 Cush. 49) 125, 148, 659 —— v. De Blaquiere (5 Bing. 550) [ 807 ] 578 JAQ Hunt v. Hunt (Deane & Swabey, 121) 428, 435 —— v. Peake (5 Cow. 475) 191 —— v. Thompson (3 Scam.179) 632 Hurlburt v. Haslbirt (14 Vt. 561 Hutelins v. Commonwealth (2 Va. Cas. 331) Hutchinson, State v. (86 Maine, 261) 536 220 v. Tindall (2 Green Ch. 357) : Hutchison v. Hutchison (1 Fras. Dom. Rel. 667) 364 Hutton v. Mansell (Holt, 458) + 84 Hyat’s case (Cro. Jac. 364) 551 Hyatt v. Wood (4 Johns. 150) 388 Hyde v. Price (3 Ves. 437) 597 I. Ilderton v. Iiderton (2 H. Bl. 145) 142 Inglis v. Robertson (1 Fras. Dom. Rel. 157) 71 Irby v. Wilson (1 Dev. & Bat. Eq. 568) 714, 729, 730, 732, 734 Irwin v. Dowling (Milward, 629) ; 612, 614 Isaacs v. Boyd (5 Port. 388) 632 J. ei Jackson v. Combs (7 Cow. 36) 632 v. Hawkey (Jacob, 264) 638 v. Jackson (1 Johns. 424) 706, 709, 720, 721, 730, 736 v. Stewart (20 Ga.120) 627 v. Sublett (10 B. Monr. 781, 798 v. Winne (7 Wend. 47) 67, 121 Jacobs, Rex v. (1 Moody, 140) 5 467) or qQ ’ Jacquins v. Commonwealth (9 Cush. 279) 802 Jagger, Rex v. (1 East P. C. 455) 498 James v. Commonwealth (12 S. & R. 220) 485 , Rex v. (Russ. & Ry.17) 175 Jamison v. Jamison (4 Md. Ch. 289) 553, 555, 598, 791 Jaques v. The Public Adminis- trator (1 Brad. 499) 46, 187 [ 808 ] INDEX TO CASES CITED. JOL Jarvis v. Jarvis (3 Edw. Ch. 462) 744, 802, 806 Jeans v. Jeans (2 Harring. Del. 38) 21, 381 v. Jeans (2 Harring. Del. 142) 612, 625, 636, 640 v. Jeans (3 Harring. Del. 136) Jee v. Thurlow (4 D. & R. 11; 2B. & C. 547) 564, 670, 691 Jelineau v. Jelineau (2 Des. 45) 288, 456, 459, 462, 466, 553, 555, 557, 570 Jenkins v. Jenkins (2 Dana, 102) 31, 176, 187 Jenkyn v. Jenkyn (Deane & 697 Swabey, 268) 443 Jenners v. Howard (6 Blackf. 240) 181 Jennings v. Jennings (16 Vt. 607) 536 v. Montague (2 Grat: 350) 630 Jennison v. Graves (2 Blackf. eat 632 Jewell v. Jewell (1 How. U. S. 219 163 J.F. 2, v. M. E. his wife (6 Rob. La. 135) 387, 404, 638 J.N.B., State v. (1 Tyler, 36) 673 Johnson v. Johnson (Walk. Mich. 309) 539, 648, 697 v. Johnson (1 Edw. Ch. 439; 4 Paige, 460; 14 Wend. 637) 21, 24, 354, 357, 374, 375, 382, 385, 408, 440, 453 v. Johnson (4 Wis. 135) 328, 455,537 0 v. Kincade (2 Ired. Eq. 187, 266 v. Medlicott (3 P. Wms. 181 v. Williams (3 Greene, Towa, 97) Johnston v. Brown (2 Scotch Sess. Cas new ed. 437) v. Ferrier (cited 1 Fras. Dom. Rel. 43) ———— »v. Johnston (Wright, 428 v. Parker (3 Phillim. 39 175, 522, 552 Jolly v. Jolly (1 Clarke, Iowa, 9) 629 v. McGregor (3 Wilson & Shaw, 85) ——, State v. (3 Dev. & Bat. 110) 470) 180) 571 181 193 454) 99 673 KEN Jones v. Bow (Carth. 225) 700 v. Jones (18 Ala. 145) 511, 522, 580 v. Jones (2 Barb. Ch. 146) 569, 581, 583 v. Jones (18 Maine, 308) 315, 563, 574 v. Jones (2 Overt. 2) 761, 806, 807 v. Jones (1 U. 8S. Mo. Law Mag. 300; 7 Legal Intelligen- cer, 19; 2 Jones, Pa. 350) 792, 795 v. Jones (Wright, 155) 478, 495, 552 v. Jones Chek 244) 483 v. Perry (10 Yerg. 59) 788 , Reg. v. (Car. & M.614) 204 ——, Reg. v. (9 Car. & P. 258) 515 v. Robinson (2 Phillim. 285) 175 ~v. State (5 Blackf. 141) 205 v. Tevis (4 Litt.25) 174, 632 Jordan v. Jordan (17 Ala. 466) 313 K. K v. K—— (Page on Div. 171) 535 Kane v. Kane (3 Edw. Ch. 389) 382 Kashaw v. Kashaw (3 Cal. 312) 627, 729 Keegan v. Smith (5 B. & C. a 578 ‘Keighley’s case (10 Co. 139a) 544 Keith v. Keith (Wright, 518) 261 Kelly v. Neely (7 Eng. 657) 215 v. Scott (5 Grat. 479) 220, 648 Kendall v. Dodge (3 Vt. 360) 776 - v. Kendall (1 Barb. Ch. 610) 585 Kenley v. Kenley (2 How. Mis- sis. 751) 454, 456, 751 v. Kenley. (2 Yeates, 207) 205 Kenn’s case (7 Co. 42) 54, 700 Kennard v. Burton (25 Maine, 39) 498, 632 Kennedy v. Campbell (3 Wilson & Shaw, 135) — v. Macdowall (Ferg. Consist. Law Rep. 163, App. 90) 76 96 68 * INDEX TO CASES CITED. KRU Kenningham v. Mclaughlin (3 T. B. Monr. 30) Kenrick v. Kenrick (4 Hag. Ec. 114) 329, 429, 434, 437, 439, 454 Kent v. Burgess (11 Sim. 361) 132, 134, 137, 138, 141 Kemble v. Church (3 Hag. Ec. 278) Kempe v. Kempe (1 Hag. Ec. 532) 589, 612, 613, 618 Keyes v. Keyes (2 Fost. N. H. 558) 99, 163, 176, 264 Kibblewhite v. Rowland (Ferg. 226) 851, 724, 726 Kiffin v. Kiffin (cited 1 P. Wms. 697, 705) Kimball v. Kimball (13 N. H. 222) 494, 520, 526, 531 King, Ex Hes (27 Ala. 387) 581 v. King (28 Ala. 315) 313, 492, 620 ——- v. King (4 Scotch Sess. Cas. N. 8. 567) State v. (1 Ga. Decis. 93 Kingsberry v. Kingsberry (3 Harring. Del. 8) 625, 636 Kingston’s case, Duchess of (20 owell St. Tr. 355; 1 Leach, ° 4th ed. 146 ; 1 East. P. C. 468; 2 Smith Lead. Cas. 424) 632 184 633 439 633 694, 703, 705 Kinsey v. Kinsey (1 Yeates, 78; 2 Dallas, 128) 456 Kintzinger’s Estate (2 Ashm. 455) 668 Kirby v. Kirby (1 Paige, 261) 604, 612, 615 v. Kirby (1 Paige, 565) 801, 595 v. State (3 Humph. 289) 423 Kirkman v. Kirkman (1 Hag. Con. 409) 459, 462, 466, 469, 472, 490 Kirkwall v. Kirkwall (2 Hag. Con. 277) 346, 359, 368 ———— »v. Kirkwall (Poynter Mar. & Div. 255) 5938, 608 Knight v. Knight (2 Hayw.101) 553 v. Wedderburn (Morr. Dict. Decis. 14545) Knowlton, Commonwealth v. (2 Mass. 530) ao of (2 Hill, 8. C. 363 Kriger v. Day (2 Pick. 316) 680, 682 Kruse v. Kruse (25 Misso. 68) 729, 765 [ 809 J 720 633 LEF L. Lacon v. Higgins (3 Stark. 178 ; D.& RNP. C.38) 125, 167 Lafferty,, Commonwealth v. (6 Grat. 672) Lalande v. Jore (5 La. Ann. 32 491 Land v, Land (14 Sm. & M. 99) 151 Lane v. Crombie (12 Pick. 177) 388 v. Lane (2 Mass. 167) 742 Lang v. Lang (13 Scotch Sess. Cas. N. 5. 1108) Langdon v. Langdon (25 Vt. 678): ‘ 374, 376 Langstaff v. Langstaff (Wright, . 148) 428, 434, 760 Lasbrook v. Tyler (1 Ch. R. 44) 551 Lash, State v. (1 Harrison, 380) 415 Lathan v. Proven (2 Scotch Sess. 415 529 Cas. new ed. 250 442 Lathorp, United States v. (17 Johns. 4) 658 Lauder v. Vanghent (Ferg. 250) 744 Laughery v. Laughery (15 Ohio, 404 : 697 Laurie v. Laurie (9 Paige, 234) : 573, 583, 634 Lautour v. Teesdale (8 Taunt. 830 18, 140 . Law v. Wilkin (6 A. & E. 718) 632 Lawrence v. Lawrence (3 Paige, .267) 487, 603, 604, 612, 615, 620 Lawson v. Shotwell (27 Missis. 630) 549, 559, 567, 660 v. State (20 Ala. 65) 422, 433, 439, 449 Leake v. Linton (6 La. Ann. 262 Lean v. Schutz (2 W. Bl. 1195) 597, 647 Leary v. Leary (18 Ga. 696) 429, 447 Leavitt v. Leavitt (Wright, 719) 525, 637, 639 Le Breton v. Nouchet (3 Mart. La. 60) Leckie v. Moir (1 Fras. Dom. 533 151 Rel. 456 460 Ledoux v. Her Husband (10 La. Ann. 663 294 Lee v. Lee (1 Dick. 821; 2 Dick. 806) 691 Lefevre v. Murdock (Wright, 205) 687 Leftwich v. Commonwealth (5 Rand. 657) [ 810 ] 220 INDEX TO CASES CITED. “LON Legeyt v. O’Brien (Milward, 325) 176, 180, 181, 184 Legg v. Legg (8 Mass. 99) 668, 700 Legge v. Dumbleton (9 Jur. 144) 267 Leicester’s case (1 Hag. Con. 148) 389 Levins v. Sleator (2 Greene, Towa, 604) 661, 761, 769, 775, 790, 792, 797, 798 Lewis v. Lee (8 B. & C. 291) 686 v. Lewis (9 Ind. 105) 382, 449 v. Lewis (3 Johns. Ch. 582 245 519) v. Lewis (2 Lee, 579) v. Lewis (5 Misso. 278) 462, 541a v. Webb (3 Greenl. 326) 781 Lewiston v. North Yarmouth (5 Greenl. 66) 781 Liddlow v. Wilmot (2 Stark. - 86) 529 a Light v. Light (1 Watts, 263) 294 Ligonia v. Buxton (2 Greenl. 102) ; 163 Lincecum v. Lincecum (3 Misso. 441) 207 Lindo v. Belisario (1 Hag. Con. 216) 31, 37, 42, 68, 67, 68, 136 Lindsey v. Lindsey (14 Ga. 657) 633 Lister’s case (8 Mod. 22) 486 Lister, Rex v. (1 Stra. 477) 486 Lloyd v. Petitjean (2 Curt. Ec. 251) 139 Loader v. Loader (3 Hag. Ec. 150) 4138 Lockridge v. Lockridge (2 B. Monr. 528 ; 3 Dana, 28) 456, 469, 552, 558, 555, 591, 592, 593 Lockwood v. Lockwood (2 Curt. Ec. 281) 330, 420, 437, 454, 456, 479, 496, 497, 498 v. Lockwood (Wadd. Dig. 238) Lockyer v. Sinclair (8 Scotch Sess. Cas. N. S. 582) 75 a, 77 Lodge v. Hamilton (2 8. & R. 491) 668, 669, 675 Logan v. Logan (2 B. Monr. 142) 277, 523, 526, 555, 560, 562, 572, 592 Lolley, Rex v. (Russ & Ry. 237; 2 Cl. & F. 568) 208, 721, 746 Lomax v. Holmden (2 Stra. 940) 198 Londonderry v. Chester (2 N. H. 268) 81, 156, 163, 165, 166, 167, 168, 169,171, 173 134 MAN Long v. Long (2 Hawks, 189) 470 Longfellow v. Longfellow (1 Clarke, 344) 583, 615 Lord v. Poor (23 Maine, 569) 632 Lord Advocate v. Robertson (1 Fras. Dom. Rel. 53) Lorman v. Clarke (2 McLean, 568) 20 Loveden v. Loveden (2 Hag. 229 Con. 1) 422, 423, 484, 437, 439, 443 v. Loveden (1 Phillim. 208) - 588, 590 Lovering v. Lovering (3 Hag. Ee. 85) 314, 338, 344, 345 Lovett v. Lovett (11 Ala. 763) 21, 396, 565, 605, 612, 626 Lucas v. Lucas (3 Gray,136) 697 v. Lucas (2 Texas, 112) 459, 461 Luffe, Rex v. (8 East, 193) 198 Lyle v. Lindsey (5 B. Monr. 123) 388 Lyman v. Mower (2 Vt. 517) 776 Lynde v. Lynde (2 Barb. Ch. 72) 612 Lyon v. Knott (26 Missis. 548) 151 v..Lyon (21 Conn. 185 563, 567, 600, 628 v. Lyon (2 Gray, 367) 709, 734, 765 Lyster v. Lyster (1 Clarke, Iowa, 130) 544 M. Macfarlane v. Macfarlane (11 Scotch Sess. Cas. N. 5. 533) | 370, 371 Maclelland v. Fulton (Ferg. Con- sist. Law, 185) Macnamara’s case (2 Bland, 566 553 Maguire v. Maguire (7 Dana, 181) 31, 34, 37, 591, 625, 627, 659, 696, 720, 721, 723, 780, 734, 739, 760, 761, 784, 785, 792 Man’s case (Cro. Eliz. 228; Sir F. Moore, 907) Manchester v. Manchester (24 Vt. 649) Mandigo v. Mandigo (15 Vt. 786) Mangue v. Mangue (1 Mass. 240) 178, 316 Manning v. Clement (7 Bing. 362 Mansfield v. Mansfield (26 Misso. 163) 466 217 498 536 388 697 INDEX TO CASES CITED. | Mary F McC Mansfield v. Mansfield (Wright, 284) 301, 351, 511,519 v. McIntyre (10 Ohio, 27 658, 662, 665, 700, 736, 739 Marlborough v. Hebron (2 Conn. 20) 639 Marshall v. Rutton (8 T. R. 545) 597, 598 Martin v. Martin (22 Ala. 86) 205, 206, 262 v. Martin (4 Halst. Ch. 58la v. Martin (Wright, 104) 583 v. Samuel F (1 N. H. 198) Mash, Commonwealth v. (7 Met. 472 Mason v. Crosby (1 Woodb. & M. 342) v. Mason (1 Edw. Ch. 278) 455, 466, 469, 478 Masten v. Masten (15 N. H. 159) 369, 407, 436, 531, 729 Masterton’s case (1 Swinton, 427) 52 Matchin v. Matchin (6 Barr, 332; 10 Law Reporter, 266) 307,416, 422, 434, 449 Mattison v. Mattison (1 Strob. - Eq. 387) 265, 288, 553 Mattocks v. Stearns (9 Vt. 326) 666 Mattox v. Mattox (2 Ohio, 233) __ 314, 389, 391, 396 Maule v. Mounsey (1 Robertson, 40) 563) 537 204 103 446 | Maxwell, Commonwealth v. (6 Law Reporter, 214 633 Maybee v. Avery (18 Johns. 352) 444 Mayer v. Foulkrod (4 Wash. C. C. 349) 20 Mayhew v. Mayhew (3 M. & S. 266; & Phillim. 11) 315 — v. Mayhew (2 Phillim, 315 791 11 : : , State v. (2 Gill, 487) Mayhugh v. Mayhugh (7.B. Monr. 424) 357, 459, 462, 494, 495, 592 Mayrant v. Guignard (3 Strob. Eq. 112) McAdam v. Walker (1 Dow. 148) 158, 180 McCafferty v. McCafferty (8 Blackf. 218) 414, 565, 526, 661, 664 McCarthy v. DeCraix (2 Cl. & F. 568) [811 ] 673 267 McK McCarthy v. Decaix (2 Russ. & Myl. 614; 2 Cl. & F. 568; 3 Hag. Ec. 642) 747, 748 McConnell v. Wenrich (4 Harris, Pa. 365) 669 McCormick vy. McCormick (7 Leigh, 66) 38 McCosker v. Golden (1 Bradf. 64) 689 Mc Coy v. Me Coy (3 Ind. as 511 McCrocklin v. McCrocklin (2 B. Monr. 370) 524, 604 McCulloch v. McCulloch (8 Blackf. 60) 310 v. McCulloch (Ferg. 257) 132 McCullough v. Robinson (2 Cart. Ind. 630) 571 McCullum v. Gourlay (8 Johns. 147) 388 McCutchon v. McGahay (11 Johns. 281) 513 McDermott’s Appeal (8 Watts & S.251) 518,531, 742, 748, 765 McDonald’s case (1 Broun, 238) 204 McDonald v. Fleming (12 B. Monr. 285) 264, 315 McDwire v. McDwire (Wright, 354) 357, 369 McEwen v. McEwen (2 Stock. 286) 581a McGahay v. Williams (12 Johns. 293) 518 McGee v. McGee (10 Ga. 477) 21, 554,570, 576, 577, 581, 583, 593, 603, 612, 613, 615 McGowan v. Caldwell (1 Cranch C. C. 481) McGuire v. Malony (1 B. Monr. 294) 670 673 - v. McGuire (7 Dana, 181) 796 McInnes v. Moir (Ferg. Consist. Law, App. 125) ——— »v. More (Ferg. Consist. Law, Rep. 33; 1 Fras. Dom. Rel. 213) McKarracher v. McKarracher (3 Yeates, 56) 370, 679 McKay v. McKay (18 B. Monr. 8 76 73 , 533 McKinney v. Clarke (2 Swan, Tenn. 321) 103¢ ———— . McKinney (1 Blackf. 363) v. Pope (3 B. Monr. 388 [812 ] 629 93) INDEX TO CASES CITED. MIL McNeil v. McNeil (3 Edw. Ch. 550) 744 McPike, Commonwealth v. (3 Cush. 181) 498 McQuaid v. McQuaid (Wright, 223) 521 Mead, Rex v. (1 Bur. 542) 486 Meadows v. The Duchess of Kingston (Amb. 756) 694, 700 Meddoweroft v. Huguenin (3 Curt. Ec. 403; 4 E. F. Moore, 386) 695, 700, 706, 707, 708 v. Huguenin (4 Knapp, 386) ~~ 700 Medway v. Needham (16 Mass. 157) 126,143, 223 Meldora v. Meldora (4 Sandf. 721 Melizet v. Melizet (1 Parsons, 78) 576, 589 Mellin v. Mellin (2 E. F. Moore, 493 Mellish v. Decosta (2 Atk. 14) Melton, State v. (Busbee, 49) Melville’s case (29 Howell St. Tr. 764) ° Mendes v. Mendes (3 Atk. 619; 1 Ves. 91) Mercein v. People (25 Wend. 64 , People v. (3 Hill, N. Y. 399; 8 Paige, 47) 633, 636 Merriam, Commonwealth v. (14 Pick. 518) — v. Hartford and New Haven Railroad (20 Conn. 354) Merrill v. Sherburne (1 N. H. - 199) 776, 778, 781, 783, 788 Merry v. Merry (12 Mass. 312) 742 Methvin v. Methvin (15 Ga. 97) 562, 581 Michelson v. Michelson (3 Hag. Ee. 147) 342, 346 Middleborough v. Rochester (12 Mass. 363) 178, 187 Middleton v. Croft (2 Stra. 1056 ; 2 Atk. 650) v. Janverin (2 Hag. 583 321 632 223 451 632 633 433 673 Con. 487) 142 v. Middleton (2 Hag. Ec. Supp. 134) 314 Miles v. Boyden (3 Pick. 213) 632 — v. Chilton (1 Robertson, 684) 31, 195, 205, 206, 241, 267, 570, 579, 580 Milford v. Worcester (7 Mass. 48) 168,167, 169, 173 MOR Miller v. Commonwealth (5 Watts & S. 488) 781, 802 v. Miller (6 Johns. Ch. 91) 607, 612, 620 — v. Miller (1 Sandf Ch. 103) 670 v. Miller (Saxton, 386) 513, 524, 529, 552, 560, 578, 620 Milliner v. Milliner (Wright, 138 Millis Reg. v. (10 Cl. & F. 584) 7,9, 53, 63, 86, 90, 91, 93, 95, 96, 117, 134, 154, 156, 157, 159, 161, 165,173 Mills v. Duryee (7 Cranch, 481) 658 Miners Bank v. United States (1 Greene, Iowa, 553) 787 Mitchell v. Mitchell (11 Vt. 134) 321 Mix v. Mix (1 Johns. Ch. 108) 552, 576, 581, 615 Moffat’s case (Macqueen Parl. 521 Pract. 658) 400 Mogg v. Mogg (2 Add. Ec. 292) 446, 474 Molony v. Molony (2 Add. 249) : 514 b, 514 c, 529 Monroe v. Twistleton (Peake Ev. App. ed. of 1822, p. 39; Peake Ad. Cas. 219) 673 Monroy v. Monroy (1 Edw. Ch. 382) 615 Montague v. Montague (2 Add. 375 Monteith v. Robb (6 Scotch Sess. Cas. N.8. 934) Montgomery v. Montgomery (3 Barb. Ch. 132) 306, 414, 645 Moore v. Moore (1 Atk. 272 691 v. Moore (3 E. F. Moore, 529 742 815 97a 84) v. Moore (2 Mass. 117) » Reg. v. (16 Jur. 752) 181 , State v. (3 West. Law Jour. 134) 57, 205 v. Whittaker (2 Harring. Del. 50) Moorsom v. Moorsom (3 Hag. Ec. 87) 332, 333, 334, 339, 340, 342, 843, 344, 348, 349, 394, 397 Morgan v. Groff (5 Denio, 364) 388 v. McGhee (5 Humph. 125 - v. Morgan (2 Curt. Ec. 335, 397. -v. Pettit (3 Scam. 529) 659 -v. State (11 Ala. 289) 215 792 13) 679) INDEX TO CASES CITED. MYE Morrell v. Morrell (1 Barb. 318) 407 v. Morrell (3 Barb. 236) 314, 407 Morris, Commonwealth v. (1 Cush. 391) 92 v. Low (4 Stew. & P. 123) 632 v. Morris (20 Ala. 168) 320, 514, 541 v. Morris (9 Printed Cases, 91 236 v. Morris (Wright, 630) 105, 122 v. Webber (2 Leon. 169; Sir F. Moore, 225 54, 694, 700 Morse v. Morse (2 Hag. Ec. 608) 437 —- v. Welton (6 Conn. 547) 632 Mortimer v. Mortimer (2 Hag. Con. 310) 300, 306, 307, 310, 410, 529 Mortimore v. Wright (9 Lond. Law Jour. 158) 632 Morton v. Morton (4 Cush. 518) 563, 763 Moseley, Rex v. (5 Hast, 224) 633 Moses v. State (11 Humph. 232) 215 Moss v. Moss (2 Ired. 55) 105, 294, $99, 508, 541 Mosser v. Mosser (29 Ala. 313) 415, 422, 458 Moiley v. Motley (31 Maine, 490) 542, 545, 546 Motteram v. Motteram (3 Bulst. 264) 682 Moulton v. Moulton (2 Barb. Ch. 309) 414, 491 v. Moulton (13 Maine, 110) Mount Holly v. Andover (11 Vt. 226) 46, 64, 88, 115 449 t Moyler v.-Moyler qu Ala. 620) 21, 313,455, 456, 459, 462, 481 Mulock v, Mulock (1 Edw. Ch. 14) 423; 482 Munro v. Saunders (6 Bligh, 468) 125 Murgatroyd v. Watkinson (T. Jones, 191) 217 Murphy, State v. (6 Ala. 765) 122, 163, 167 Murray, Commonwealth v. (4 Binn. 487 632 - v. Barlee (3 Myl. & Keen, 209) 598 -v. MeLauchlan (1 Scotch Sess. Cas. N. s. 294) 530 Myers v. Myers (2 McCord Ch. 214) 632 [813 ] NOV Mytton vy. Holyoake (Macpherson on Infants, 149) 633 v. Mytton (3 Hag. Ee. 608, 612, 618 657) N. N. v. M. (2 Robertson, 625) 237, 248 Nagle v. Nagle (12 Misso. 53) 408 Nash v. Nash (1 Hag. Con. 140) 300, ~ 436, 506, 529 Nash, State v. (8 Ired. 35) 330 Naulet v. Dubois (6 La. Ann. 408) 5254 Neagle v. Neagle (12 Misso. 53) 396 Neal v. Her Husband (1 La, Ann. 315) 730 Neeld v. Neeld (4 Hag. Ec. 263) 357, 454, 456, 463, 469, 487 Neil v. Neil (4 Hag. Ec. 273) 593, 608, 609, 612 Nelson v. Evans {1 Dev. 9) 444 Newbury v. Brunswick (2 Vt. 151 132, 163, 167 Newell v. Newell (9 Paige, 25) 235, 254, 255 Newhouse v. Commonwealth (5 Whart. 82 598 Newport v. Cook (2 Ashm. 332) 632 Nicholls v. Danvers (2 Vern. 671) Nightingale v. Withington (15 Mass. 272) 632 Nixon v. The Office (Milward, 390) 733 Noel v. Ewing (9 Ind. 37) 35, 761 Nogees v. Nogees (7 Texas, 538) 21, 376, 387, 461, 462 Nokes v. Milward (2 Add. Ec. 386 267, 317 Norfolk’s case, Duke of (13 Howell St. Tr. 1334) Norfolk v. Germaine (12 Howell St. Tr. 929) Norman v. Heist (5 Watts & S. 171) 784, 789 North v. North (1 Barb. Ch. 241) 21, 24, 576, 579 v. North (5 Mass. 320) 384 Northfield v. Plymouth (20 Vt. 582) 163, 167 Norton v. Norton (2 Aikens, 188) 235 v. Seton (3 Phillim. 147) 6, 54, 206, 234, 242, 243, 256, 258, 695 Noverre v. Noverre (1 Robert- son, 428) 306, 307, $10 [814] 551 277 433 . INDEX TO CASES CITED. PAR Nurse v. Craig (5 B. & P.148) 578 Nutt, Commonwealth v. (1 Browne, Pa. 143) 633 0. Officer v. Young (5 Yerg. 320) 777 Oland’s case (5 Co. 116) 649 Oldham v. Henderson (5 Dana, 254) Olin v. Hungerford (10 Ohio, 268) 21, 697 Oliver v. Oliver (5 Ala. 75) - 566 v. Oliver (1 Hag. Con. 361) 459, 465, 466, 469, 485, 528 Opinion of the Supreme Judicial Court of Maine (16 Maine, 479) 775, 761, 784, 790 Orde v. Murray (8 Scotch Sess. Cas. N. 8. 535 724 Orme v. Orme (2 Add. Ec. 382) 473, 502, 506, 507 Orrok v. Orrok (1 Mass. 341) 620 Osborne, Reg. v. (Car. & M. 622) 4 666 98 Osgood v. Osgood (2 Paige, 621) 573, 582, 583 Otway v. Otway (2 Phillim. 95) 462, 466, 562, 593, 603, 612, 613, 616, 618 Owen v. Owen (4 Hag. Ec. 261) 309, 310 v. White (5 Port. 435) 632 Oxenden v. Oxenden (1 Gilb. Ch. 1; 2 Vern. 493 Oxenham v. Gayre (Bacon Ab. tit. Mar. & Div.) 215, 218 Ozard v. Darnford (1 Selw. N. P. 11th ed. 294) 5294 551 P. Paddock v. Wells (2 Barb. Ch. 331 Paff Z Paff (Hopkins, 584) Page v. Estes (19 Pick. 269) 669, 682, 685 Paine, State v. (4 Humph. 528) Palmer v. Palmer (1 Paige, 276) 301, 490, 564 Park v. Barron (20 Ga. 702) 167,177, 212 Parker v. Parker (2 Lee, 382) 180, 184, 185, 187 215 592 633 PER Parnell v. Parnell (2 Hag. Con. 169) 180 v. Parnell (2 Phillim. 158) Parsons v. Parsons (9 N. H. 309) 21, 274, 549, 554, 563, 576, 600 Parton v. Hervey (1 Gray, 119) 167, 169, 175, 191, 192 Pastoret v. Pastoret (6 Mass. 276) 408 Paterson v. Paterson (7 Bell Ap. Cas. 337; 12 Eng. L. & Eq. 19) 459, 460 v. Paterson (1 Halst. Ch. 615 v. Patrick (3 Phillim. 67 363 389 Patric 496) Patterson v. Gaines (6 How. U.S. 550) 46,125, 205, 262, 444, 700 ——— ». Patterson (1 Halst. Ch. 389) 576 —_—_, State v. (2 Ired. 346) 67, 125 Patton v. Philadelphia (1 La. Ann. 98) 63, 91, 163, 208 Paul v. Frazier (8 Mass. 71) 388 Pawlett v. Clark (9 Cranch, 292) 18 Pawling v. Bird (13 Johns. 192) 720, 721, 730 v. Willson (13 Johns. 639 192 Payne v. Payne (4 Humph. 500) 483, 612, 621, 624 Payson v. Payson (34 N. H. 518) 504, 531, 742 Pearce, State v. (2 Blackf. 318) 415 Pearson v. Howey (6 Halst. 12) 168, 167, 169, 172, 173 Pease v. Naylor (5 T. R. 80) 706 Peat’s case (2 Lewin, 288) 81 Peckford v. Peckford (1 Paige, 274) 397, 612, 620 Peltier v. Peltier (Harring.,Mich. 19 554 _. Pemberton v. Pemberton (2 Notes Cas. 17) 593, 606 Pence v. Pence (6 B. Monr. 496) 565, 627 Pennycook v. Grinton (Ferg. Consist. Law, Rep. 95) 91, 93 Penson, Rex v. (5 Car. & P. 412) 208 Percy v. Percy (9 La. Ann. 185) 151 Perishal v. Squire (1 Dick. 31) 569 Perkins v. Eaton (3 N. H. 152) 388 v. Perkins ° Mass. 69) 370 v. Perkins (2 Paige, 621) 573 v. Potts (8 a. Ann. 14) 504 INDEX TO CASES CITED. POO Perrin v. Perrin (1 Add. Ec. 1) 105, 442, 529 Perry v. Meddowcroft (10 Beav. 122) 702, 707, 708 v. Perry (1 Barb. Ch. 516) 471, 490 v. Perry (2 Barb. Ch. 285) 302, 584 v. Perry (2 Barb. Ch. 311) 490, 564 v. Perry (2 Paige, 501) 21, 23, 46, 99, 104, 227, 264, 454, 485, 490 Perryman, Commonwealth v. (2 Leigh, 717) 220 Person v. Person (6 Humph. 148) 765 Persons v. Persons (7 Humph. 188) 599 Pettitt v. Pettitt (4 Humph. 191)}180 Phalen v. Virginia (8 How. U.S. 163 773 Phelps, State v. (2 Tyler, 374) 678 v. Townsend (8 Pick. 392) 632 Phillips v. Gregg (10 Watts, 158) 125 v. Phillips (4 Blackf- 357, 374 v. Phillips (1 Robertson, 144; 10 Jur. 829; 4 Notes Cas. 523) 15, 314, 332, 333, 334, 335, 336, 337, 339, 340, 341, B44, 345, 348, 397, 443 v. State (9 Humph. 246) 498 Piatt v. Piatt (9 Ohio, 37) 600, 697 Pidge v. Pidge (3 Met. 257) 459, 511, 516, 524 Pidgin v. Cram (8 N. H. 350) 632 Pierce v. Burnham (4 Met. 303) 687 v. Pierce (3 Pick. 299) 332, 386 Piers v. Piers (2 H. L. Cas. 331) 36 b, 88, 175 Pinkard v. Pinkard (14 Texas, 356) 462, 512 Pitt v. Smith (3 Camp. 33) 181 Platt v. Powles (2 M. & 8.65) 198 Plummer v. Webb (Ware, 75) 682 Pollard v. Wybourn (1 Hag. Ke. 725) 239, 243, 245, 255, 256, 258, 352 Pomeroy v. Wells (8 Paige, 406) 554, 720, 721 Pomfret v. Pomfret (2 Phillim. 40 Ponder v. Graham (4 Fla. 23) 206, 772, 792 Pool v. Pratt (1 D. Chip. 252) 174, 191 [815 ] 181) 617 PUT Poor v. Poor (8 N. H. '309) 465, 485, 491, 494, 526 Popkin v. Popkin (1 Hag. Ec. 765) « 371, 440, 470 v. Popkin (1 Hag. Ee. 366, 384, 385 v. Popkin (1 Hag. Ec. ' 768 357 Porter, People v. (1 Duer, 709) 633 Portsmouth v. Portsmouth (38 Add. Ec. 63) 579, 583 ———— »v. Portsmouth a Hag. Ec. 355) 99, 116, 120, 176, bergh ( OL salt Portynton v. Steinbergh (10 X & F841 41) 8 Poteet, State v. (8 Ired. 23) Potier v. Barclay (15 Ala. 439) 67, 680 Powell v. Powell;(27 Missis. 783). 184, 659 v. Powell{(3 Wms. Vt. 5146 v. Weeks (Noy, 108) 766) 91 422 148) 680 Prather v. Clarke (1 Const. 453) 688 v. Prather (4 Des. 33) 553, 555, 557, 620, 635 Pratt v. Bacon (10 Pick. 123) 20 Prentiss v. Tudor (1 Hag. Con. _ 186) 137 Prevost, Succession of (4 La. Ann. 347) 63, 163 Price v. Clark (3 Hag. Hc. 265) 448 v. Sessions (3 How. U. Hae, 668, 781 Priestly v. Hughes (11 East, Dy 174 Prince v. Prince (1 Rich. 282) 321,553, Shh: 560, 604, 612 Proctor v. Proctor (2 Hag, "Con. 292) , 389, 391 Prudham v. Phillips (cited Amb. 763; 1 Harg. Law Tracts, 456; 2 Burn Ec. Law, 495) 49,699, 700, 706 Pugsley v. Pugsley (9 Paige, Purcell v. Purcell (3 Edw. Ch. 194) 382 573 v. Purcell (4 Hen. & Munf. 507) 320, 553, 555, 557, 558, 570, 576, 591, 615 Putnam, Commonwealth 2. a Pick. 136) v. Putnam (8 Pick. 433) 126, 143, 658 657 [816 ] INDEX TO CASES CITED. RIC Q. Quarles v. Quarles (19 Ala. 363 Queen v. Questel (Wright, 491) 357, 369, 377, 552 Quincy v. Quincy (10 N. H. 272) 21, 354, 356, 357, 359, 362, . 874, 576 Quinn v. Quinn (16 Vt. 426) 444 366 R. - Randall’s case (5 N. Y. City Hall Recorder, 141) Randall v. Randall (4 Greenl. 326 Rate v. Wales (1 Hill, N. Y. 673, 674 ie anive Rawdon (28 Ala. 565) . : 176, 187, 41la Ray v. Sherwood (1 Curt. Ec. 178) 51, 217 — v. Sherwood (1 Curt. Ec. 193) 50, 52, 60 Read v. Legard (15 Jur. 494; 4 Eng. L. & Eq. 523 5294 Reavis v. Reavis (1 Scam. 242) 565 Reddall v. Leddiard (3 Phillim. 256 Reed . Reed (Wright, 224) Reemie v. Reemie (4 Mass. 586) 436, 444 "463, 497, 620 —— v. Rees (3 Phillim. 387) 588, 598, 603, 605, 608, 612, 613, 614 — »v. Waters (9 Watts, . 90) 549, 554 Reese v. Reese (23 Ala. 785) 371 Reeves v. Reeves (2 Phillim. 125) 105, 332, 336, 346, 397, 529 Reid v. Laing a Shaw Ap. "Cas. 440) Rennington v. Cole (Noy, a , 57 Renwick v. Renwick (10 Sule.” 420) 666, 668, 683 Republic v. Skidmore (2 Texas, 261) Rhame v. Rhame (1 McCord Ch. 197) 279, 396, 456, 466, 555, 557 Rice v. Parkman (16 Mass. 326) 787 — v. Rice (6 Ind. 100) 461 a, 629 68 444 175 512 Rees v. Rees (23 Ala. 785) 730 ROC Richardson v. Richardson (1 Hag. Ec.6) 347, 418, 491, 428 ———— ». Richardson (2 Mass. 153) 730, 742 ———_ »v. Richardson (4 Port. 467) 313, 402, 422, 423, 429, 434, 453, 576 v. Wilson (8 Yerg. 67) 555, 563, 565, 568, 626, 629, 797 Richmond v. Richmond (1 Green. Ch. 90) 593, 603, 620, 636, 640 Ricker v. Ricker (29 Maine, 281) 549, 545 Ricketts v. Ricketts (4 Gill, 105) 576, 589, 603, 612, 617, 620 —v. Taylor (1 Hag. Con. 299) Ringer v. Churchill (2 Scotch Sess. Cas. N. 8. 307 Ristine v. Ristine (4 435 724 awle, 460) 2i, 403 Ritter v. Ritter (5 Blackf. 81) 105, 266, 544, 547 Rix v. Rix (3 Hag. Ec. 74) 333 339, 342, 348 Roach v. Garvan (1 Ves. sen. 157) 138, 632, 658, 700, 706 Robbins, State v. (6 Ired. 23) 167, 171 Roberts, Respublica v. (2 Dall. 124; 1 Yeates, 6) v. Roberts (Wright, 149) 521, 620 Robertson v. Cole (12 Texas, 356) 99, 105 v. Cowdry (2 West. Law Jour. 191; 1 S. W. Law Jour. 167) 83, 115 ————. v. Robertson (1 Edw. Ch. 360) 581 Robins v. Crutchley (2 Wils. 118) 694 v. Wolseley (2 Lee, 149) 315 Robinson v. Bland (2 Bur. 415 1077) 125 ————— v. Campbell (3 Wheat. 212) 20 v. Robinson (1 Barb. 27) 301 ————-v. Robinson (7 Humph. 440) 621, 624 v. Robinson (2 Lee, 593) 605 96) Roby v. West (4 N. H. 285) Roche, Rex v. (1 Leach, 134) 658, 700 69 v. Robinson (2 Phillim. 468 388 INDEX TO CASES CITED. SAN Rochon v. Lecatt (2 Stew. 429) 681 Rodebaugh ». Sanks (2 Watts, 9) 167, 168 v. Rogers (15 B. Monr. 768 v. Rogers (3 Hag. Ec. $32, 333, 338, 339, 340, 344, 349, 399 v. Rogers (4 Paige, 516) 529 Rogers 364) 57) , 595 v. Vines (6 Ired. 293) 549, 591, 593 Roirdan, Rex v. (Car. Crim. Law, 3d ed. 255 : Rolfe v. Abbott (6 Car. & P. 286) Rood, State v. (12 Vt. 396) 163, 173 544 55 632 Rooke’s case (5 Co. 99 Rose v. Clark (8 Paige, 574) 163, 164 — v. Himely (4 Cranch. 241) 714 v. Rose (4 Eng. 507, 512) 19, 461, 588, 541 a v. Rose (11 Paige, 166) 562, 572, 581 Roseberry v. Roseberry (17 Ga. 139) 579 Roswell, State v. (6 Conn. 446) 216 Rourke v. Rourke (8 Ind. 427) 627 Ruding v. Ruding (1 Hag. Ee. 740) 346 v. Smith (2 Hag. Con. 132, 135, 137, 138, 140, 141, 142 Rudman v. Rudman (5 Ind. 63) 620, 625 Rumball v. Rumball (Poynter Mar. & Div. 237) 469, 496 Rumney v. Keyes (7 N. H. 571) 5 371) 29a Russell v. Bodvil (1 Ch. R. 186) 551 v. Russell (Smith, Ind. 356; 1 Cart. Ind. 510) 602 Ryan v. Ryan (9 Misso. 539) 399 ; 408, 576 —— v. Ryan (2 Phillim. 332) 700 8. Sabell’s case (2 Dy. 1786 57 Sackett v. Giles (8 Barb. Ch. 204) 559, 666 v. Sackett (8 Pick. 309) 18 Samuel, State v. (2 Dev. & Bat. 177 163 Sands’s case (3 Salk. 22) 689 [817] SHA Sanford v. Sanford (5 Day, 353) 37, 625, 698, 737, 739 v. Sanford ie R.1. 64) 576 Sassen v. Campbell (3 Scotch Sess. Cas. new ed.108; 2 Wil- son & Shaw, 309) Satterlee v. Matthewson (2 Pet. _ 418) Saunders v. Saunders (2 Edw. Ch. 491) 581 a _—_ v. Saunders (10 Jur. 143) 322, 429, 462, 471, 472 —— v. Saunders (1 Robert- son, 549 ; Notes Cas. 413) 330, 470, 480,481, 501 Savoie v. Ignogoso (7 La. 281) 294 306, 679 Sawtell v. Sawtell (17 Conn. 284) 531, 730, 766 Sawyer v. Sawyer (Walk. Mich. 48 306, 309, 812, 563 Schnaufer vy. Schnaufer (4 La. Ann. 355) 744 Schonwald v. Schonwald (2 Jones Eq. 367) 729, 765 Schumpert, Ex parte (6 Rich. ° 844 71a 786 633 553 744 802 Scott’s case (2 Bland. 568) Scott v. Boutcher (Ferg. 252) v. Scott (6 Ohio, 534, v. Scott (Wright, 469) 487, 511 v. Shufeldt (5 Paige, 43) 99, 105, 121, 122 ——, State v. (10 Fost, N. H. "974 632, 633 Scoville v. Canfield (14 Johns. 338) 658 Scrimshire v. Scrimshire (2 Hag. Con. 895) 53, 125, 142, 563, 700 Scrivener v. Scrivener (cited 1 ’ Robertson, 92) Scroggins v. Scroggins (3 Dev. 535) 100, 105, 266, 544, 547 ——— vv. Scroggins (Wright, 391 212) : 437 Seaborne v. Maddy (9 Car. & P. 497) 632 Searle v. Price (2 Hag. Con. 187) 205; 308, 310, 327, 448 Sellars v. Davis (4 Yerg. 503) 205 Sellers v. Davis (4 Yerg. 503) ys 647, 652 Sergeson v. Sealey (2 Atk. 412) 186 Shafher v. State (20 Ohio, 1) oe 192, 194, 199 Shaftoe v. Shaftoe (7 Ves. 171) 596 [ 818] INDEX TO CASES CITED. Binn. 283) SIN Shannon v. Shannon (2 Gray, 285) 5T5 Sharp v. Sharp (2 Sneed, 496) 462, 627, 630 Shaw v. Shaw (17 Conn. 189) 455, 459, 462, 469, 487, 489 v. Shaw (13 Scotch Sess. Cas. N. 8. 819) , State v. (3 Ired. 532) v. Thackary (23 Eng. L. & Eq. 18) v. Thompson (16 Pick. 198) 38, 5294 Sheafe v. Sheafe (4 Fost. N. H. 564) 564, 565, 600, 612, 626 v. Sheafe (9 Fost. N. H. 724 215 182 269) 697 Sheffield v. Sheffield (3 Texas, 79 318, 447, 461, 462, 490 Shell y. Shell (2 Sneed, 716) 466, 541 a Shelley v. Westbrooke (Jacob, 266) 633 Shelton v. Pendleton (18 Conn. 417) 571, 576 Shepherd, Commonwealth v. (6 428 v. Mackoul (3 Camp. 326) 571 Sherburne »v. Sherburne (6 Greenl. 210): 802, 806 Sherman v. Sherman (18 Texas, 521) Shields v. Shields (15 Scotch Sess. Cas. n. s. 142) Shillinger v. Shillinger (14 Tl. 147) Shore v. Shore (2 Sandf. 714; 8 N. Y. Legal Observer, 166) 583 Shotwell v. Shotwell (Sm. & M. 462 724 315 Ch. 51) 567 Shreve, State v. (Coxe, 230) 632 Shute v. Dorr (5 Wend. 204) 632 v. Shute (Prec. Ch. 111) 680 Sim v. Miles (8 Scotch Sess. Cas. 89) — wv. Miles (12 Scotch Sess. Cas. 633) 449 Simmons’s Divorce bill (12 Cl. & F. 339) 400 Simmons v. Simmons (11 Jur. 830; 5 Notes Cas. 324; 1 Robertson, 566) 424, 442, 447, 449 Simons v. Simons (13 Texas, 468) 313, 527, 5274 Sinclair v. Jackson (8 Cow. 548) 783 95 SNO Sinclair v. Sinclair (1 Hag. Con. 294) 315, 700, 745 Sinton v. Irvine (11 Scotch Sess. _ Cas. 402) Slack v. Slack (Dudley, Ga. 165) 557, 588 Sloan v. Cox (4 Hayw. i 399, 598 v. Kane (10 How. N. Y. Pract. 66) Small v. Small (81 Maine, 493) 542, 545 Smith, Commonweath v. (1 Wheat. Dig. 826) 204 v. Huson (1 Phillim. 287) 175 v. Smith (1 Edw. Ch. 255) 580 v. Smith (2 Hag. Ec. Supp. 52 378 99 44) 9 v. Smith (13 Mass. 231) 663 v. Smith (20 Misso. 166) 697 v. Smith (12 N. H. 80) 524, 742 - vy. Smith (5 Ohio State, 32 61 v. Smith 4 Paige, 92) 391, 408, 442 v. Smith (4 Paige, 432) 314, 349, 354, 378, 381, 382, 697 v. Smith (2 Phillim. 67) 431 v. Smith (2 Phillim. 207) 482 v. Smith (2. Phillim. 152) 612, 613, 614, 635 —— v. Smith (2 Phillim. 235) 603, 604, 612, 616, 617, 621 —— v. Smith (2 Pick. 621) 388 —— v. Smith (1 Root, 349) 598 v. Smith (3 8. & R. 248) 294, 563, 806 v. Smith (1 Texas, 621) 205, 208 v. Smith (Wright, 643) 301, 303, 352 —— v. Smith (Wright, 644) 437 ——-, State v. (6 Greenl. 462) 633 v. Young (2 Dev. & Bat. 26) 632 Smoot v. Lecatt (1 Stew. 590) 681 Smyth v. Smyth (2 Add. Ec. 254 570, 580 v. Smyth (4 Hag. Ec. 509) 367 —— vw. State (8 Eng. 696) 175 Sneed v. Ewing (5 J. 5 . Marshall, 460) 180, 261 Snover v. Snover (2 Stock. 261) Snow v. Snow (2 Notes Cas. Supp. 1) 845, 354, 356, 357, 360, 364, 365, 369, 371, 373, 383, 384 620 x INDEX TO CASES CITED. | Squire v. Squire (3 Mass. 184) STE Snow v. Snow (2 Notes Cas. Supp. 10) 874 Snowling v. Nursey (2 Lutw. 1075) 217 Snyder v. Snyder (3 Barb. 621) 583 Society v. Wheeler (2 Gallis, 105) Soilleux v. Soilleux (1 Hag. Con. 378) 427, 433, 449, 585 Somerville v. Lord Somerville (5 Ves. 750) Sommersett’s case (20 Howell St. Tr. 1) 720 Soule v. Bonney (37 Maine, 128) 122 Sparrow v. Harrison (3 Curt. Ec. 16) 245, 248 Spaulding v. Bank of Musk- ingum (12 Ohio, 544) 388 Spencer v. Ford (1 Rob.Va. 648) 599 Spiller v. Spiller (1 Hayw. 482) 553 Spratt v. Harris (4 Hag. Ec. 405) 689 742 Stafford v. Stafford (9 Ind. 162) 599 Stallwood v. Tredger (2 Phillim. _ 287 167, 168 Stanford v. Stanford (1 Edw. Ch. 317 408, 581 717 143 Staniford v. Barry (1 Aikens, 314) Stanley v. Stanley (26 Maine, 191 778, 780 Stansbury v. Bertron (7 Watts & S. 362 Stanton v. Willson (3 Day, 37) 632, 639, 673 Starr v. Pease (8 Conn. 541) 275, 664, 666, 667, 761, 775, 784, 792, 798 v. Peck (1 Hill, N. ¥.270) 163 781 633 .| Stayte v. Farquharson (8 Add. Ke. 282) Steadman v. Powell (1 Add. Ee. 58) Steele v. Braddell (Milward, 1) ~ 142, 151 —- v. Thatcher (Ware, 91) 632, 683 Stephens v. Totty (Cro. Eliz. 908) " 456, 464, 466, 679 Sterling v. Sterling (12 Ga. 201) 598 Stevens v. Stevens (1 Met. 279) 682, 780 Stewart v. Menzies (2 Rob. Ap. Cas. 547) «66, 75, 76, 86, 90, 96 v. Redditt (8 Md. 67) 184 v. Stewart (2 Swan, Tenn. 591) 397, 505 [819] 117 689 TAR Stewartson v. Stewartson (15 Ill. 145) 612, 620 Stigall, State v..(2 Zab. 286) 633 St. George v. St. Margaret (1 _ Salk. 123) 198 St. Giles, Reg. a Q. B. 173) 216 St. John v. St. John (Wright, 211 514 St. John Delpike, Rex v. (2 B. & Ad. 226) Stokes v. Stokes (1 Misso. 320) 410, 511 v. Stokes (1 Misso. 324) 744 Stone v. Pulsipher (16 Vt. 428) 632 v. Stone (3 Curt. Ee. 341) 604, 606 607 175 v. Stone (9 Jur. 381) v. Stone (3 Notes Cas. 278; 1 Robertson, 99) 307, 308, 337, 338, 342, 343, 346, 398, 440 Stones v. Cooke (8 Sim. 321) 596 Story v. Story (Walk. Mich. 421 _ 569, 571, 576, 618 Stovall v. Johnson (1 U. S. Mo. Law Mag. 528) Strader v. Graham (10 How. U. S. 82) 717 Street v. Street (2 Add. Ec. 1) 562, 611, 612, 617 Stretch v. Pynn (1 Lee, 30) 689 Sugden v. Lolley (2 Cl. & F.567) 721 v. Lolly (Ferg. 269 351 Sullivan v. Sullivan (2 Add. Ec. 299) 347, 397, 448, 473, 527 v. Sullivan (2 Hag. Con. 238) ; 108, 175 Sumner, Commonwealth v. (5 Pick. 360 28 v. Sebec (3 Greenl. 223). 633 Sussex Peerage case (11 Cl. F. 85 134 Sutton v. Warren (10 Met. 451), . 58, 125, 180 Swearingen v. Swearingen (19 Ga. 265) 581, 581 a, 620 Swift v. Kelly (3 Knapp, 257) . 89, 115, 125, 134 Sykes v. Halstead (1 Sandf. 483) 527, 529 a, 569, 578 T. 632 Tappan v. Tappan (6 Ohio State, 64 j 697 Tarant, Rex v. (1 Bott P. L. +338; 2 Bott P. L. 68) [ 820 ] 103 INDEX TO CASES CITED. THR Maine, 315, 401 Tarkington v. The State (1 Cart. Tarbell, petitioner (32 589) - Ind. 171) 633 Tarry v. Browne (1 Sid. 64) 123 Taylor v. Binnie (4 Deas & An- derson, 314; 10 Scotch Sess. Cas. 18) 585 -v. Kello (1 Fras. Dom. Rel. a ; i 74 v. Kello (Mor. 12687) 76 v. Simpson (5 J. J. Mar- shall, 689) v. Taylor (4 Des. 167) 456, 495, 555, 620 v. Taylor (Jones, N. C. 486, 494, 575 v. Taylor (2 Phillim. 40) 617 v. Taylor (18 Texas, 687 574 pee v. Tayman (2 Md. Ch. 3938) 455, 571, 576, 630 Tenducci’s case (3 Phillim. 595) 730 Terrett v. Taylor (9 Cranch, 43) 18 Terry v. Buffington (11 Ga. 337 Tewkdbury v. Tewksbury (2 Dane Ab. ie —————. v. Tewksbury (4 How. Missis. 109) 309, 563, 604, 625 598 461 184 310 Texas’s case (1 Ashm. 175) Thatcher v. Thatcher (17 Ill. 66) 400a Thomas v. Gordon (7 Scotch Sess. Cas. 872) 92 ~ v. Thomas (18 Barb. 583 149) Thompson v. Harvey (4 Bur. 2177). ———— v. State (28 Ala. 12) 721, 729, 736, 736 b, 738 a, 740, 760 ———, State v. (Wright, 617) 181 v. Thompson (Wright, 522 ———— v. Thompson (1 Yeates, 78; 2 Dall. 128) 456, 679 Thornberry v. Thornberry (2 J. J. Marshall, 322) 21, 455, 459, 467, 570 v. Thornberry (4 Litt. 251) 612, 620, 625, 627, 696 Thorp v. Thorp (Wright, 763). 535 Threewits v. Threewits (4 Des. 560) 301, 357, 369, 377,456, 553, 558 562 470) TUR , Tiffin v. Tiffin (2 Binn. 202) 370 Tilton v. Russell (11 Ala. 497 : 632 Timmings v. Timmings (3 Hag. Ec. 76) 336, 844, 845, 362, 364, 881, 384, 409 Tolen v. Tolen (2 Blackf. 407) 720, 721, 730, 782, 736, 744, 760, 761 Toulmin, Matter of (R. M. Charl. 489) 633 Tourné v. Tourné (9 La. 452) 461, 471, 500 Tourtelot, v. Tourtelot (4 Mass. 506) Tovey v. Lindsay (1 Dow, 117) 297, 729, 746, 749 Townsend v. Graves (3 Paige, 453) 303 451 ——— ». Griffin (4 Harring. Del. 440) 31, 35, 37, 664, 666, 667, 739, 784, 785, 786, 790 792,793, 798 Trelawney v. Coleman (1 B. & Ald. 90; 2 Stark. 191) Trimble v. Trimble (2 Cart. Ind. 76) 315, 320 - v. Trimble (15 Texas, 18) 627, 636 Trowbridge v. Carlin (12 La. Ann. 882) True v. Ranney (1 Fost. N. H. 52). 63, 130, 176 Tubbs v. Harrison (4 T. R. 118) 632 Tucker v. Tucker (11 Jour. 893; 5 Notes Cas. 458) 308, 309, 310, 422 429 485 Turing, Ex parte (1 Ves. & B. 140 187 Turner v. Felton (2 Phillim. 92) 175 v. Meyers (1 Hag. Con. 414) 176,177, 178, 180, 184, 185, 186 v. Rookes (10 A. & E. 571 181 47) , State v. (Wright, 20) Turney v. Turney (4 Edw. Ch. 566) Turpin v. The Public Adminis- trator, 2 Brad. 424) Turrel v. Turrel (2 Johns. Ch. 391) » 652, 581, 612 Turst v. Turst (2 Lee, 92) 572 Turton v. Turton (3 Hag. Ee. 449 95 388) 314, 333, 339, 342, 349, 363, | 368, 378, 383, 385, 398, 442 69* INDEX TO CASES CITED. VOL U. U. v. F. (2 Robertson, 614) University v. Williams (9 Gill & J. 365) Urquhart v. Flucker (Ferg. 259) 744 Utsler v. Utsler (Winghs 627) 539 Utterton v. Tewsh. (Ferg. 23) 351, : 724, 725 248 776 Vv. Valentine v. Valentine (4 Halst. Ch. 219) Valleau v. Valleau (6 Paige, 207) 55, 411, 413, 414, 418 Van Aernam v. Van Aernam (1 Barb. Ch. 375) Vance v. Vance (8 Greenl. 132) 310 ——- v. Vance (17 Maine, 203) 7 637 645 10 Van Cort v. Van Cort (4 Edw. Ch. 621) 449, 450 Vandergucht v. De Blaquiere (8 Sim. 315) Vanduzer v. Vanduzer (6 Paige, 366) Vandyck v. Hewitt (1 East, 96) 388 597 Vane’s case (13 East, 172; 1 W. Bl. 18) Van Epps v. Van Epps (6 Barb. 320 493, 434, 442, 449 Vanleer v. Vanleer (1 Harris, Pa. 211) 511, 526 Van Valkinburg v. Watson (13 Johns. 480) Van Veghten v. Van Veghten (4 Johns. Ch. 501) 801, 490 Van Voorhees v. Van Voorhees (Wright, 636) Vaughan v. Buck (3 Eng. L. & & Eq. 135) Verginer v. Kirk (2 Des. 640) Vignos v. Vignos (15 Ill. 186) 455, 465 Villareal v. Mellish (2 Swanst. 538) 632 Violett v. Violett (2 Dana, 323) 774 Vischer v. Vischer (12 Barb. 640) 708, 721, 730, 734 Viser v. Bertrand (14 Ark. 267) “304, 571 Volentine v. Bladen (Harper, 9) 632 [ 821 ] 486 632. 511 608 288 WAS W. Wait v. Wait (4 Barb. 192; 4 Comst. 95 Wakefield v. Mackay (1 Phillim. 134) 662 100 , Rex v. (39 Annual Register, 316; 47 Edin. Rev. 100; 2 Lewin, 279; 2 Town- send St. Tr. 112; Deac. Crim. Law, 4) Walker v. Laighton (11 Fost. N. H. 111) 513, 514 b, 514¢, 529, 530 , Reg. v. (2 Moody & R. 498 v. Walker (1 Curt. Ee. 573 v. Walker (cited 3 Hag. Ec. 59) v. Walker (2 Phillim. 153) 345, 346, 367, 368 Wall v. Williams (11 ‘Ala. ’g26) 700, 720 v. Williamson (8 Ala. 45) 720 v. Williamson (8 Ala. 48) 125, 127, 700 Wallace, State v. (9 N. H. 515) « Alb, 433 _ Wallingsford v. Wallingsford (6 Har. & J. 485) 301, 549, 553, 556, 558, 559, 591 Wallscourt v. Wallscourt a1 Jur. 134) Walton v. Rider (1 Lee, 16) 67, 87, 263 Ward v. Barnard (1 Aikens, 121 107 212) 560) 333 471 776 v. Dulaney (23 Missis. 410) 176, 178, 188 Waring v. Waring (2 Phillim. 132; 2 Hag. Con. 153) 454, 487, 490, 491, 492, 494, 495, 498 Warren v. Warren (3 Mass. 321) 455, 465 Warrender v. Warrender (2 cl. & F. 488; 9 Bligh, 89) 80, 125, 127, 131, 142, 143, 145, 300, 724, 729, 746, 747, 749, 750, 754, 757 Washburn v. Tracy (2 D. Chip. 128) 388 v. Washburn (9 Cal. 475) 5860 v. Washburn (5 N. H. +195) 306, 433 [822] INDEX TO CASES CITED. WHE Waskam v. Waskam (31 Missis. 154) 469 Watkins v. Haight (18 Johns. 138) 802 v. Holman (16 Pet. 25) 786, 787, 789 Watkinson v. Mergatron (T. Raym. 464) — v. Watkinson (12 B. Monr. 210 494, 524, 696 Watkyns v. Watkyns (2 Atk. 96) 391, 550, 551 Waully, Rex v. (1 Moody, 163; 217 1 Lewin, 23) 175 Way, State v. (6 Vt. 311) 423 Webb.v. Needham (1 Add. Ec. 494) 689 Webster v. Webster (23 Eng. L. & Eq. 216) 376 Welch, State v. (26 Maine, 30) 450 v. Welch (16 Ark. 527) 301 Welde v. Welde (2 Lee, 578) 245, 248 v. Welde (2 Lee, 580) 54, 235, 248, 257 (3 Binn. Welles v. Tucker 366) 673 Wellesley v. Beaufort (2 Russ. 1; 1 Dow & Cl. 152) 633 ———— v. Wellesley (2 Bi N. 8. 124) Wells v. Fisher (1 Moody & R 99 . 62 v. Fletcher (5 Car. & P.12) 62 v. Thompson (13 Ala. 793) 329, 581, 760 West v. West (2 Mass. 223) 784, 792, 798, 802, 805, 806 Westbrook v. Westbrook (2 Greene, Iowa, 598) 299 West Cambridge v. Lexington (1 Pick, 506) 670 Westmeath v. Westmeath (2 Hag. Ec. Supp. 1) 300, 345, 354, 365, 368, 369, 374, 376, 386, 427, 454, 462, 466, 469, 476, 498, 500, 528, 529 —————— v. Westmeath (3 Knapp, 42) 562, 593, 605, 618 Wharton v. Mair (Ferg. 950) 724, 730 Wheeler v. Alderson (3 Hag. Ec. 574) 180, 181, 184 v. Hotchkiss (10 Conn. 225) 666 ———— v. Wheeler (2 Dane, Ab. 310) 687 Wit Wheeler v. Wheeler (18 Ill. 39) 598, 620 Whipple v. Dow (2 Mass. 415) 632 Whispell v. Whispell (4 Barb. 217 369, 871, 374, 375, 376, 454, 462, 463, 477, 497 562, 612 Whitcomb v. Whitcomb (2 Curt. Ee. 351 729 White v. Driver (1 Phillim. 84) 184 ——- v. Henry (24 Maine, 531) 632 v. White (5 Barb. 474) 668, 781 v. White (5 N. H. 476) 721, 760 v. White (Wright, 138) 521, 620 184 es. 633 v. Wilson (13 Ves. 87 Whitfield v. Hales (12 492) Whitman v. Hapgood (10 Mass. 437 Whitsell v. Mills, (6 Ind. 229) 661, 664 v. Whitsell (8 B. Monr. 50) 576, 586 Whittier v. Whittier (11 Fost. N. H. 452) 629, 630 Whittington v. Whittington (2 Dev. & Bat. 64) 283, 294, 297, 346, 399, 411 Whorewood v. Whorewood (1 778 Ch. Cas. 153 551, 557 Whorwood v. Whorwood (1 Ch. R. 223) 551 Wightman v. Wightman (4 Johns. Ch. 343) 61, 130, 131, 186, 187, 189, 262, 264 Wilbor v. Williams (8 Law Re- orter, 439) 388 ulbur v. Tobey (16 Pick. 177) 61 Wiles v. Wiles (8 Md. 1) 553, 555 Wilkes v. Wilkes (2 Dick. 791) 550, 551 Wilkinson v. Gordon (2 Add. Ec. 152) 446, 689 Willard v. Stone (7 Cow. 22 191 Williams, In the goods of (3 Hag. Ec. 217) 689 Williams v. Baldwin (7 Vt. 506) 673 v. Brown (3 B. & P. 69) 720, 728 — v. Callow (2 Vern, 752) 551 v. Dormer (16 Jur. 366 ; 9 Eng. L. & Eg. 598; 2 Rob- ertson, 505) 57, 315, 710 INDEX TO CASES CITED. WIS. Williams v. Fowler (McCleland & Younge, 269) 459, 571 v. Monroe (18 B. Monr. 571, 576 v. Oates (5 Ired. 535) 129, 658 - v. Williams (3 Barb. Ch. 628) 443, 581, 582 v. Williams (4 Des. 183) 612, 620, 635, 637, 640 v. Williams (3 Greenl. 514) 135) 315 — v. Williams (1 Hag. Con. 299) 307, 308, 312, 352, 422, 424, 434, 435, 443, 448 — v. Williams (3 R. 1.185) 766 a Williamson v. Parisien (1 Johns. Ch. 389) 205, 410, 765 —————_ v. Williamson (1 Johns. Ch. 488) 21, 25, 801, 357, 410, 411 Willinck v. Davis (Harper, 260) 388. Willis v. Bernard (8 Bing. 376 ; 1 Moore & S. 584; 5 Car. & P. 342) 429 Willson v. Smyth (1 B. & Ad. 801) 578. Wilmore v. Wilmore (15 B. Monr. 49 624, 627, 629 Wilson v. Brockley (1 Phillim. 132) 46 v. Burr (25 Wend. 386) 571 v. Wilson (2 Dev. & Bat. 575 v. Wilson (5 Eng. Ee. 594 v. Wilson (2 Hag. Con. ~ 669, 572 v. Wilson (3 Hag. Ec. 377) 129) 208) 329) 591. v. Wilson (Poynter Mar. & Div. 263) 572 v. Wilson*( Wright, 128) : 436, 444, 552 v. Wright (Dudley, Ga. 102) 632 Wilt v. Vickers (8 Watts, 227) 632 Wilton v. Webster (7 Car. & P. 198) 429 Wing v. Hurlburt (15 Vt. 607) 571 Wintercast v. Smith (4 Rawle, 177) : Winters, People v. (2 Parker, 10 Wisthy v. Wistby (1 Connor & Lawson, 537) [ 823 ] 485 304 WRI Withipole’s case (Hob. 181) 53, 217 Woart v. Winnick (3 N. H. 473) 300, 777, 781 Wodell v. Coggeshall (2 Met. 89 : Wolf v. Wolf (Wright, 243) Wood v. Simmons (20 Misso. 363) 668, 669 v. Waterville (4 Mass. ° 422) 388 v. Wood (3 Ala. 756) 633 v. Wood (4 Hag. Ec. 138) 434 v. Wood (5 tea 674) 399, 515 v. Wood (2 Paige, 108) 21, 24, 357, 368, 381, 389, 391,407, 408, 428, 449, 582 v. Wood (2 Paige, 454; 8 Wend. 357) 581, 583 Woodruff v. Woodruff (2 Fairf. 475) 444 Woods v. Pindall (Wright, 507) 181 v. Woods (2 Curt. Ec. 516) 51, 216, 217, 323 Wooldridge v. Lucas (9 B. Monr. “a9 549, 558 Wooley v. Wooley (Wright, 245) 583 Worcester, Commonwealth v. (3 Pick. 462) v. Merchant (14 Pick. 632 352 789 510) 632 Worden v. Worden (3 Edw. Ch. 387) 581, 583, 615 Worsley v. Worsley (2 Lee, 572; 1 Hag. Ec. 734) 354, 373 Wortly v. Watkinson (2 Lev. 254; 3 Keb. 660) 217 Wray v. Wray (19 Ala. 522) 419 Wright’s case (1 Bland, 101) 576 [ 824] INDEX TO CASES CITED. ZUL Wright v. Ellwood (2 Hag. Ec. 598) v. Ellwood (1 Curt. Ee. 267, 297, 308 v. Wright (1 Edw. Ch. 581, 612, 615 v. Wright (2 Md. 429) 558, 664, 792 v. Wright (15 Scotch Cas. 767) v. Wright (3 Texas, 168) 313, 369, 570, 583, 605 v. Wright (6 Texas, 3) ‘ 21, 315, 320, 365, 376, 461 v. Wright (6 Texas, 29) 562, 599 v. Wright (7 Texas, 526) 625 Wroxton, Rex v. (1 Nev. & M. 712; 4B. & Ad.640) 46,171 Wyatt, Commonwealth v. (6 Rand. 694) 544 v. Wyatt (Wright, 149) 521 Wycherly, Reg. v. (8 Car. & P. 262) 267 662) 62) Sess. 250 Y. Yates v. Boen (2 Stra. 1104) 186 Yeo v. Yeo (2 Dick. 498) 551, 569 Young v. Naylor (1 Hill Eq. 383) 205, 264, 653, 677, 769 Younge v. Cassa (Ferg. 255) 744 Yule v. Yule (2 Stock. 138) 462, 554 Z. Zule v. Zule (Saxton, 96) 205, 315, 563,°647 ANALYTICAL INDEX. BOOK I. THE FOUNTAINS OF OUR MATRIMONIAL LAW. Szcrion CHAPTER 4. Tax Enguisa Eccuzstastica, Law . 1-154 origin and constitution of the ecclesiastical courts ‘ ° 1-3 rules of decision in these courts . 7 7 : 4-9 not the Roman canon law. 7 . 5 : 4-8 they have a common law of theirown . : . 9 English text-books of ecclesiastical law 5 . - 10-12 English reports and American reprints : . . 13,14 judges and practice of the ecclesiastical courts . 3 . 15 the new matrimonial court in England . 7 . 15a CHAPTER 2 Tse Marrimoniat Law or THE UNITED STaTEs. . 3 : - 16-28 is the English ecclesiastical law . z : 16 et seq. colonists take with them the common law. : : 17 which embraces all laws : : - c . 18 but not the courts of the mother country . : 5 19 illustrations — limited equity jurisdiction, &c. . ’ 7 20 in United States no ecclesiastical jurisdiction except by statute 21 but decisions of ecclesiastical courts furnish the rules of law 21-27 yet otherwise as to the practice of the court 28 " [825] Cuap. 3. ANALYTICAL INDEX. BOOK II. . MARRIAGE. CHAPTER $. Narure or tHe Lecat Status or Mar- RIAGE . : . . . 29-45 marriage a status, not a contract . . . « 29-31 reasons for this doctrine . . ‘ ‘ 32-42 collateral contracts may attend the abate . a - 37,38 ~ importance of this distinction : . : i 41 status not created until there is a contract a : é 42 nullities of marriage, and division of the subject . A 43, 44 void and voidable marriages. 5 3 . : 45 CHAPTER 4. Distinction or Vorp anp VOIDABLE IN MarRiAGE . . . . 46-62 definition, &e. . ‘ 7 . 2 46 history and nature of the aiuitietian . . 7 47-52 what marriages voidable at common law : ‘ - 53,54 marriages voidable by statute : ‘ . . 55 marriages reckoned as void, in a sense voidable . . 56 effect of marriage voidable . : : ‘ j 57-59 English and American statutes . : : . - 60-62 American common law - ‘ £ : 61 and note BOOK III. NULLITIES OF MARRIAGE. CHAPTER &, Imprrrect Consent . : : 62 a-98 introductory views . 3 7 . 62a, 626 consent the foundation of marriage . : : - 63 forms do not supersede consent ‘ a 3 6 64, 65 nature of the consent. . . : : 66, 85, 86 copula not consent . é é : . ‘i 67, 68 no particular form of words. . : . . 69 consent-by letters . an j : 5 70-71a parties must intend mietulany . 7 ‘ 5 - 72-88 [826 ] ANALYTICAL INDEX. Cap. 7%. distinction between the consent and the evidence of it ‘ 84 must be mutual .. ‘ ‘ a ‘ c : 85 must be present . : : ‘ . . 86 successive declarations . . . : ‘ . 87,88 agreement of secrecy . . : 7 89 consent per verba de futuro cum a aa presenti . - 90-91 a by habit and repute . F 7 é . 92 when promise and copula are not rascal . 3 93-97 what kind of promise necessary, and how proved . 7 974 want of consent, marriage void . . ‘ . . 98 CHAPTER 6. Fravup, Error, Duress . ; . 98a-123 introductory views " : 98a, 99 these infirmities vitiate all oitleneta including inamese . 99 but peculiar rules apply to marriage. . 5 F 100 reason of this difference ; : : . » 100,101 fraud and conspiracy . . . r - 103-116 when third persons are the conspirators . : 103 ¢ difficult to lay down rules . . : » 104,106,108 “ fraudulent contract” : : . : 104 and note representations of chastity . . . : « 105 observations on the cases . : . . % 106 Wakefield’s case : Q ‘ 3 : - 107 the Scotchlaw . : . ‘ . - 109-114 fraud as to the person . : . : . » 115 quantum of fraud . : 5 : . : 116 error 2 : . . . 5 116 a-118 the doctrine on naninls : 7 . : 7 1164 must usually involve a fraud . i 7 - 117 doctrine of the Canonists : . : . 118 duress é : . . . 5 119-121 same principles analy to duress in marriage as; other contracts 119 what sufficient fear F . . . . - 120 consent under arrest ‘ / 8 . . 121 principles applicable alike to fraud, error, and duress. 122, 123 parties—cohabition . : . . 7 : 122 these marriages void, not voidable . j 3 . 123 CHAPTER 7%. MarriaGE CELEBRATED UNDFR CONFLICT- ing Laws. . 7 . - 124-151 question stated. = : . - 124 marriage valid where contracted, is valid everywhere - 125-129 doubts on this subject : » ; 125, 128, 129, 1294 Massachusetts cases illustrative . : . - 126 [ 827 ] . Cuap. 8. ANALYTICAL INDEX. the English case of Conway v. Beazley . . . 127 view of Mr. Burge é . 5 ; + 128 the North Carolina Cone A i . . 129 the Louisiana court . . . 129 a exceptions, incestuous and polygamous rmadiiapes: &e. 127, 129 a, 130, 131 query respecting alate English case. . . .131a@ marriage invalid where contracted, invalid everywhere . 132 exceptions . . : . + 1383 where marriage eanok be had by local lea - . 134 where the local law allows a departure from the gen- eral rule : . : 7 : 135-139 an invading army . c : : - 140,141 reasons for the foregoing doctrines . : . 142-151 ex debito justitie, &c. 7 , m 7 : 142 peculiar nature of marriage . ‘ * ‘ 143 the law of nature. ; : ‘i . - 144-151 not affected by statutes . & : : P 144, 146 true view of marriage in fraud of the law of domicil . 44a intent of parties . 7 : . . - 145 controlled by law of the doudell: : 7 . 147, 148 principles governing in respect to marriage as divorce 149, 150 property rights follow a differentrule . ‘i : - 151 CHAPTER 8 Tar Common Law anp Statutrory Forms oF CONSENT . . : ° + 152-175 consent alone sufficient by the ancient canon law . é 152, 153 whether sufficient at common laws. . 5 - 154-166 the question stated i “ ‘ 5 - 154 why the question is opened to doubé . : . 154 points agreed. 7 7 : : : - 156 disputed . 3 ‘ 7 . 157 settled for Scotland . c ; : ‘ - 158 England, by statute . : 5 7 . 159 English view of the common law : ‘ - 159-162 American“ “ ‘s 7 : ; - 163-165 effect and interpretation of statutes 3 : 167-172 to change common law, must contain express clause of nullity 167 illustrations of the rule 7 . ri - 168-172 no form of words necessary to marriage. : : - 178 whether a clergyman can marry himself : - 173 and note consent of parents : : ‘ a s 174, 175 [ 828 ] ANALYTICAL INDEX. Cuar. I. CHAPTER 9. Want or Menta Capacity . . 176-190 a branch of the doctrine of consent : : 176, 177, 181 this marriage anciently considered valid . . : 177 both parties must be able to contract : : . 177, 178 same doctrine applies to the marriage contract as to others . 178, 179 commission of lunacy, effect of . : , - 180, 186 a lucid interval ; : : : : : 180 intoxication - s ‘ x ‘ 181, 184 and note deaf and dumb : : 7 . . . - 182 combination of insanity and fraud =. ‘i : : 183 burden of proof of insanity A c a e . 184 proof of lucid interval : 3 ‘ - 180, 184, 185 insanity generally . : ; é 185, 186 in whose name the suit brought : . . . 186 the marriage void not voidable_. i : z . 187 effect of cohabitation in a lucid interval : : - 188-190 CHAPTER 10. Want or AcE . : : - 191-199 infants under twelve and fourteen cannot contract a perfect marriage . . . . . 191 complaint of this rule as stein i age too young : - 192 construction of statutes as to this rule . : i : 192 canon and Scotch laws. . : . , . 198 under seven cannot marry at all : 7 5 : 194 marriages between seven, and twelve and fourteen 7 194 how these marriages confirmed or annulled. é : 194-1 96 wife must be nine years old to have dower é , - 197 legitimacy of children . : : . : 198 whether this marriage void or eoidabla . . . . 199 CHAPTER Uf. Incaraciry rrom Socrat Causes » 200-212 both parties must be able to contract matrimony . . . 200 polygamy . . . 5 : 2 - 201-209 as a criminal matter i: a 3 ‘i 202-204 the terms bigamy and polygamy é . 202 marriage when the husband is erroneously ibdlieved to be feed 204 second marriage while first subsists always void : . 205 effect of in Louisiana and under the civil law . 207-209 statutory impediments after divorce. ; ‘ « 210-212 innocent party prohibited for two years A ‘ - 210 prohibitions on guilty party . : . ‘ - 211, 212 foreign prohibitions after foreign divorce . : - 212 70 [829] Cuap. 14. ANALYTICAL INDEX. CHAPTER 4%, Arriniry anp ConsaNGUINITY . . 213-221 introductory views . : : 3 213 different views of affinity, as an ‘impadiniaat . é - 214 affinity the same impediment as consanguinity . . 215 husband’s relations not in affinity to the wife’s . é - 215 illegitimate children the same as legitimate. : 216 marriages in the second and third degrees prohibited _. - 217 half blood same as whole blood ‘i ‘ : ‘ 218 Archbishop Parker’s table . . : - 219 later views respecting affinity and consieutie ; 2 220 these marriages voidable at common law . . : - 221 CHAPTER 18. Furtuer Imrepiments To PARTICULAR INTERMARRIAGES : : 222-224 guilty party and particeps criminis after divorce . . 222 whites marrying with Indians, negroes, &c. 3 é - 223 impediments in the civillaw . . . 7 : 224 CHAPTER 14. Puysican Imporence . i - 225-261 parties to marriage must be of different sex. 7 5 225 two objects of marriage — having offspring and avoiding fornica- tim . . . . - 226 marriage implies ane of aality toconsummate . 227, 241, 242 definition of impotence | . 3 i 5 . - 228 barrenness not impotence : : : . 229-2324 whether barrenness from ascertainable malformation, etc., sufficient 3 ‘ . 5 . 228-233 where sexual intercourse is cmp 7 . - 230-232 cases of impotence rare. . : : . 234, 239 may be in men or women : . : é . 234 courts bound to give relief ‘ z . . + 284 impotence must exist at time of the marriage : . 235 must be incurable : > : . - 235 origin of no consequence. . . . 236 as to one person only . é : . - 237 classification of _ : 7 . . 238 unknown what cases may arise : . - 239 a Massachusetts case . si : 7 240 whether either party can make the complaint . . 241, 242 delay in bringing the suit ‘ 3 ‘ ‘ 243, 2434 age of parties material. i‘ ‘ . . 244, 246 proofs ofimpotence . . : : : . 245-260 [ 830 ] ANALYTICAL INDEX. Cuaap. 16. mspection of defendant ‘ : . «245, 247, 250-259 sometimes necessary . . - 245, 250 necessity the basis of the sila * . . 250, 254 whether it exists in United States . . - 251-258 limits of the rule : : . ‘ 254, 255 of the plaintiff : . 5 . ji 256 how performed . . . . . - 257 certificate of inspectors fj : eo Sy 258 direction to inspectors in New York . : 259 triennial cohabitation . : ‘ 5 : 245-249 necessary when defect not obvious on inspection « 245 cage of infants : . . . : 246 when not necessary , - 7 ; - 247 substantial compliance with the rule sufficient . 248 whether rule exists in United States. . - 249 amount of proof necessary : . . . 260 this marriage voidable_. a c : - 261 CHAPTER £5. Tue Surr ror Nuwuty . ; . 262-267 nature and necessity of this suit. ‘ a i - 262 suit of jactitation : A ‘ : . - 268, 705 courts can take jurisdiction only by statute . é . 264 except equity over void marriages, &c. : : + 264, 265 statutory authority to divorce at discretion gives this jurisdic- tion. A : . 7 é . - 266 suits of nullity governed by same rules as suits for divorce . 267 BOOK IV. GENERAL VIEW OF DIVORCE. CHAPTER 16. History anp Poxicy or Divorce Laws 268-290 history of the law. . . - : - 268-279 diversity of opinion and laws . . i: . - 269 History of the Roman law . . 7 : + 270-274 doctrine of the Catholic Church : ‘ - 274, 276, 278 Greek a . : : : 275 Protestant “ . . ‘ 275, 278 [831] Cuap. 17%. ANALYTICAL INDEX. theological views . : . , . 275, note reason of the Catholic belief 3 ; : 2 - 276 - origin of divorces & mensd . : . ji . 277 present English doctrine and its source . . 278, 285 an attempted reformation . se . . . 278 the doctrine in the United States is 7 - 279 policy of the law : - . 280-290 question not of theology bil vicitieal pe pediewoy 280, 281 actual matrimony, right of every person . ‘ : 281 interest of every State . . . - 282 marriage a permanent condition . é . : 283 views of Judge Swift . : 2 5 = - 284 vinculum should be dissolved when cohabitation impracti- cable F * ‘ p 285, 286 divorces & mensa diacou aged Fs ‘ : 277, 285, 2854 views of Milton and others . . ‘ : 287 the legal literature concerning divorce ‘ : - 288 law and practice of South Carolina z 3 : 288 further views . ; : - 288 a-288¢ courts should waimtitdien the laa in its spirit : ‘, 289, 290 concluding views . 5 s i e 290 CHAPTER 1%. Lavine Docrrines Concerning Dr- VORCE . : . . 291-830 introduction ‘ . . . 7 . - 291 definition of divorce, and different kinds ‘ , A 292 may be by legislative act or judicial sentence. ‘ - 293 sometimes may be either & mensé or & vinculo - 3 294 & mensG, whether for limited time ‘ ‘ ‘ - 295 same principles of law govern proceedings for different kinds of divorce. : . : . - 296 public a party to enbriniou tal suits. < . A 297 whether divorce suit is civil or criminal . . . 297-300 is a triangular civil suit : : : ¥ : 300 public how interested : ° : ‘ 5 300-303 default does not bind the public : : ; . 301 but does the party . ‘ ‘ . 3 - 3802 technical objections, amendments, &c. "i : 5 303 agreement to obtain a divorce —a Connecticut case. - 804 confessions of the defendant . . : . + 805-315 sole confessions not sufficient proof . = . - 805 rule of both the common and canon laws . . . 805, 306 not altogether excluded . a - 807 weight less in suits of nullity ; : . 308 [ 832 ] ANALYTICAL INDEX. Cuap. 18. nature and amount of evidence to corroborate - 809, 310, 312 private examination by the judge . . : é 311 whether defendant must plead negatively . i - 811 general result of doctrine about confessions : % 312 statutory modifications of the doctrine . : - 813 points to be established in evidence by the respective parties 314 proof of the marriage . ; : . : - 815-327 plaintiff must prove it . ; A . . - 815 what kind of marriage it must be . . a ‘ 316 how of voidable marriage : ; : : - 3164 in suits for nullity . zi . 5 - 7 317 amount and kind of proof of, in divorce suits . 318-325 legislative alterations of the rule. . F . 326 witness to prove marriage in nullity . . 3 . 327 other evidence in the case. : - 3828-330 must be both morally and legally datielenit : : - 828 the offence does not dissolve the marriage without sentence 329 relatives and servants as witnesses . . : : 330 CHAPTER 18. Connivance anp CoLLUsIon. - 831-353 connivance . : : ‘ ‘ , 832-346 definition of ‘ : : : . . 332 corrupt intent the gist of : : : . - 333 whether any thing less is sufficient . . . - 334, 335 merely to watch the wife for proof, not connivance . - 336 connivance at one act is connivance at every act . - 337, 338 proofs of connivance. : : i é 839-349 not readily inferred : . . . . 339 but need not be proved in time and place . . - 839 proof generally circumstantial . : a : 340 Dr. Lushington’s scale : . : - 841 must consider relative duties, &c., of Rodan and wife . 842 what is not connivance may be rtvot ofit . : 343 connivance implies knowledge of the offence. . 344 not so easily inferred if parties not living together . - 844 inferable from condonation . 7 . . 345 but not against the wife . . . a - 845 conduct after adultery committed, evidence. . 346 delay to bring suit. : . . . . 846 license of adultery in articles of separation F . 347 verdict at law in suit for crim. con., as evidence 5 348, 352 of pleading connivance. z . ‘ . 349 collusion. 2 * , . . . 350-353 70* [ 833 ] Cuap. 19. ANALYTICAL INDEX. definition of ‘ ‘ . 7 . . 350 must be a concurrent act of the parties to the suit =. - 851 proof of collusion . . 3 a . 852, 353 must be proved — sails of court easily aroused, &c. . 353 oath of calumny in Scotland . ‘ . ; 353 CHAPTER 19. ConponaTIon . : : ; 354-387 definition of . ‘ ‘i . . i. . 354 is an act of the mind, but proved according to technical rules . 355 may be express or implied . 2 . . 3 356 implies knowledge of the offence . . 857 and belief of its existence ‘ ‘i ‘ F ‘ 358 law presumes belief after probable knowledge. % 358, 359 effect of facts which should excite inquiry 360, 361 knowledge of ability to prove the offence : . . 3862 must be knowledge of all the adultery . 363 cohabitation with such knowledge a presumed condonation 357-366 once in bed after knowledge sufficient E - : 364 but not strictly against the wife, &c. . : 7 - 3864 cohabitation, with separate beds 7 : ‘ . 365 promise or offer of future cohabitation . 5 - 3866 condonation inferable from delay to sue . 367 but not against the wife . 2 ‘ : 367, 368 not generally so easily against the wife ‘ i . 368 distinction as to condonation between cruelty aud adultery 369-371 whether cruelty the subject at all of condonation 870, 871 condonation conditional . & . : 371 a-380a general statement of the doctrine 3 : . 37la nature of the condition. i. , é ‘i 372-375 further principles on which this doctrine rests. . 376-378 condition may perhaps be obliterated . 379 whether condition may be annexed by special agreement @ 380 the question of the condition on principle . : 3804 pleading condonation . ‘i i . . 381,382 must be proved by detndant, : ; : - 881 if comes out in plaintiff ’s allegations or ayliiente, fatal - 882,384 court may inquire into it ex officio . . . . 382 whether it may be set up on interrogatories . 383 form of allegation as affecting proof ; . 384 condonation more easily inferred than connivance . 385 deed of separation as evidence of revival of the offence 386 statutory law 3 : : 387 [ 834 ] ANALYTICAL INDEX. Cuap. 2i. CHAPTER 2@. Recrimration . ; ; » 887 a-409 principle on which it rests : ‘ ; ; . 888 what it is— it bars suit for divorce . . . . 389 definition, &. . ‘ ‘ 3 : . 8890 differences as to the policy of this law : : : 390 the English doctrine : ‘ ; ‘ : . 391 how in the United States : 3 - 891, 392 whether cruelty will bar a suit for separation on the ground of adultery =. : 393-398 not decided in England previont to “the seedement of this country : . . : : + 893-395 doctrine of the canon law é : ; 393, 396 and note reasons of present English doctrine “ : . 894, 895 rests on unsound reasoning . . : . . 3896 limits of the doctrine of recrimination 3 397 adultery may be proved by less evidence in pocnninnton nel as an original ground : - 898 whether cruelty or any offence for whieh a separation oniy4 is allowable will bar an adultery suit, &c. for divorce 4 vinculo 399, 400 difference in respect to the two kinds of divorce . : 399 practice of the English Parliament, &c. : : - 400 how when each offence is cause of divorce & vinculo - 401-404 both parties prima facie entitled to divorce. . - 401 various decisions. ‘i : : 402 doctrine in Missouri and Bensigleaats A r - 408 Louisiana . . . : 404 when the recriminatory offence has fied condoned - 405-407 a Lord Stowell’s view : ‘ ‘ : 3 405 Dr. Lushington’s view . : : . - 406 New York and New anpéiirs views. 3 é 407 doctrine on principle. 3 d ; - 4074 recriminatory offence must be pleaded and proved . : 408 but if plaintiff shows it, the bar fatal . ‘ . - 409 CHAPTER @4. Larse or Time anv INSINCERITY . 410-4144 no statute of limitations to divorce suits . : - 410 but neglect to sue may establish connivance or eorldbuation 410-413 neglect not so strong a bar against the wife as the husband 410-411 delay explained ‘ : : . : « 412,413 American statute law 2 i ‘ .- ; . 414 insincerity. ‘ A 3 a 3 414a [ 835 ] CHap 22, ANALYTICAL INDEX. BOOK V. SPECIFIC GROUNDS OF DIVORCE. CHAPTER 22, Aputrery . : 3 ‘ . 4144-453 definition of adultery . F : 2 - 415 whether it should have the same eoaueeqaenes committed by the husband as wife : . : - 416 in England the divorce for, anciently & vinculo, now - mensa 417 as ground of divorce, must be voluntary : - 418 how in case of insanity : . ‘ ‘ ‘é 419 - how if Jews have concubines. . a is - 420 proof of adultery . . . : . - 421-453 plaintiff need not prove althe can. : . - 421 evidence usually circumstantial . F ‘i - 422-425 need not be proved in time and place : - 422 courts judge as other men of sound discretion . 423, 425,453 but regard former decisions . : q : . 424 view the facts in combination ‘ ; ‘ 7 424 value of rules of decision as to the facts . : - 425 circumstances leading up to the adultery... . . 426 three things combine — criminal intent in each, and oppor- tunity . 3 . . . 427 circumstantial evidence may assume other forms . é 428 what the general result must be . sewers : 428 terms on which parties lived . : - . . 429 that the husband living separate, supported his wife . 430 evidence of cruelty in proof of adultery . 7 431, 432 familiaritics with the particeps criminis and with other per- sons . . . . . . . 433 visit to a brothel. ‘i ‘i a : 434 the lodgings of asingle man . . : - 485 a fact of marriage with particeps criminis . ‘i 436 living together under reputation of marriage : - 436 effect of falsehood or concealment - r : 437 making presents, &c. . . : - . 438 consider modes of life, relative dtaaton: &c. of the parties 439 venereal disease 2 ‘ ‘ c 440, 440a stains on defendant’s linen . . é 441 once shown when presumed to continue ‘ é - 442 verdict in crim. con. against the adulterer . . 443 on an indictment : . 444-446 opinions of witnesses . ‘ Fé : . 447 [ 836 ] ANALYTICAL INDEX. Cuap. 23. identity and diversity of the parties . . 448 decree of confrontation . ; : ; 448 confessions of defendant ; : : : 449 and testimony of agents, and particeps criminis 449 husband or wife of particeps criminis as witness ; . 450 evidence of character - 4 - : 451,452 general view . . 3 , . - - 458 CHAPTER 23. Cruerty . . : : . 454-501 definition of it . 5 5 : ‘i . . 454 Lord Stowell’s observations . ‘i z 454, note language of the American statutes : : 5 455 courts interfere to prevent future harm . 456 this divorce founded on law of nature . . 457 the law and evidence how relatively considered. 458 the harm must be to the body, not the mind 459 different rule in Scotland. : 7 ‘ ‘ 460 : Louisiana, Texas, &c. . : : 461 the question in principle —. ; ; 46la indignities to the mind in aggravation. ; : 462, 463 what shown outside the allegation . s ; - 463,463 4 groundless charge of adultery, foul language, &c. 462 matters not pleaded . . . é 463 danger may be to health, &c., as well as lisaps . . 464 test, whether threatens boiiily harm : ; : 465 need not be blows + ‘ é ; . 465, 466 how if indignities to the mind tend to fees z - 467-468 a motive for the conduct how material . : 5 469 if violence, the kind immaterial , 3 470 attempt to debauch servant, &e. . 3 : ae 470, 482 ill treatment of plaintiff’s child, &c. ‘ 3 A471 doing damage to husband’s property . - 472 desertion, as a branch of cruelty . . : . 473, 484 unnatural practices : . . : . - 474 what extent of cruelty sufficient . : 475-484 not a slight assault, &c. ‘ < « 475,478, 481 depends upon circumstances of the case . 7 . 476 condition in life of parties . . : 2 476,477 not frivolous complaint . c . : : 478 but case need not be aggravated A » 479 one act may be sufficient . me ae ARG - 479,480 but must threaten bodily harm : : : ‘ 481 throwing bucket of water . . . : 481 spitting on wife’s face . : : 481 [837] Cap. 24. ANALYTICAL INDEX. a complication which was held sufficient . ‘ 482 bad language and bad prayer ‘ ‘ - 483 desertion and adultery, &c. ‘i . . 484 relative rights and duties of husband and wife . . 485-489 important in questions of cruelty . . . 485 whether husband may flog his wife. . a - 485 confine her ' ; ‘ - 486, 486a wife must conform to husband’s habits ‘ ‘ . 487 attending church, visiting, &. . : 3 ‘ 487 depriving wife of managing family . . . - 488 husband requiring wife to occupy bed with him . q 489 complaint may proceed from either husband or wife. 490, 4904 how when husband complains e - ‘i 490 recrimination . . . . . 491 complainaht’s conduct cau be dooce j : - 491-495 how if ill conduct met by greater wrong . . 492-494 perfection not required . . . ‘ . 495 this defence must be ees : : . , - 496 proofs of cruelty é : . F 458, 497-501 plaintiff must establish his case 3 . : 497 how considered in reference to his aileaytous . - 497, 4974 marks and bruises on wife. . : é . 498 complaint of wife to maid, &c., as evidence . ‘i 498 record of conviction for assault : . . ‘ 499 demeanor of the parties since suit brought . : 500 defendant’s admissions ‘ . . a . 501 CHAPTER 24. Deszrrion ‘ . : - 502-531 suit for restitution of conjugal rights, the remedy for in Eng- land : : : 502, 507 in the United States, ie suit fin itvarea - . 503 statute law on the subject , ; F ‘ . 504 construction of the statutes . c . 7 . 505 what is desertion . 7 . é . 506 what sufficient cessation of ehabibaen . . - 506-510 a refusal to consummate the marriage . . : - 507 whether mere denial of copula sufficient . . - 507-510 not as foundation of suit for conjugal rights : - 507 the principle as applied to desertion. . 7 508 illustration from joining the Shakers . : - 509 the Scotch law . ‘ . : : . 510 the question in principle. 5 A ‘ . 510a what sufficient intent to desert . a‘ ; - 511-517 not separation by consent . . . . . 511 [ 838 ] ANALYTICAL INDEX. Cuap. 26. the burden of proof : . ‘ . . 511 need not commence with the separation . . ‘ 512 consent to separate revocable . . r 513 effect of offer to return ; Sr . : 513, 580 the party guilty of desertion not ane the one who leaves the habitation ‘ : 514 wife refusing to follow husband on ‘clans of doutell 514a-514¢ when one rightly leaves for the other’s wrongful conduct 515-517 evidence. . 511 et seq. generally, 517-523 cruelty as shamfug! intent to drive away : : - 517 wife driving off her husband * : : : 518 woman glad she is deserted. ‘ : : . 519 intent to desert, must be affirmatively proved . . 520 particular circumstances of each case a ‘i ‘ 520 illustrative cases. 7 : : . 7. 521-523 what will justify a desertion . . . c 524-529 if justifiable, no ground of divorce : . ‘ 524 the justification on principle . . . . - 5244 the Ohio doctrine . . . . a . 525 how in Alabama : . . - 525a in Pennsylvania, Raley, and ew Hampshire . 526 in England, and observations . 5 ‘ 527, 528 effect of suit pending 7 7 . 7 . 527,5274 articles of separation : ‘ . 3 . 529 suit for necessaries furnished the wife, itiucteattiva 5294 offer to return as a bar to the suit - : a : 530 locality of the desertion ‘ aes ae 7 . 531 CHAPTER 2. Ornzr Causes or Divorce . 532-541 a introduction . 5 7 : : . . 532 drunkenness. . 3 F ‘ - - 533 gross neglect of duty ; : . : . 534,535 refusing to maintain, being of ability . . 7 536-537 b uniting with the Shakers. . . : ; 538 criminal conviction : 7 , . c ; 539 absent and not heard of : 7 : : . 540 deserting and living in adultery . . . » 541 offering indignities . ‘ . . : . 541 a CHAPTER 26. Divorce in THE JupGn’s Discretion 542-547 this is becoming common in the United States d : 542 how in Maine. . : : . . - 542 [ 839 ] Cuap. 2%. ANALYTICAL INDEX. embarrassing to the courts . F : : P 543 proposal how to legislate . : . 7 . 548a discretion judicial . : : . 544, 5444 how construed in connection with apecita causes ‘ 545, 546 gives jurisdiction over causes of nullity : : 7 547 BOOK VI. THE CONSEQUENCES OF DIVORCE. CHAPTER BY. Auimony . : 5 : . 548-623 b order of the discussion . . . . . 548-548 a definition of alimony . 7 : ‘ 549 as granted in connection ai divorce or not . . - 550 alimony without divorce... 7 ‘ - 551-559 introduced in England in time of the Commonwealth 7 551 courts of equity in some of the United States . - 552,558 not generally allowed : 5 ‘ : 554 causes for which granted . . : ‘i 555 confessions in evidence : : : 5 ‘i 556 form of the decree ° : 5 . . 557 what it may embrace °. : ‘ 3 7 557, 558 this suit does not survive . : : 7 i 559 permanent alimony : ‘ : i 560-568 rests on husband’s duty to support his a . . 560 some general doctrines on principle . : - 560a-560¢ necessarily follows a separation . . : . 561 not if wife has sufficient separate estate : 7 ; 562 cannot follow a decree of nullity . : : : 563 whether follows divorce &@ vinculo. ‘ ‘ F 563 nor where wife is guilty party . . : - 564,565 sometimes does by statute . : 5 . . 565 decree in favor of the guilty husband. . . 566 whether divorce and alimony must both be in same suit 567, 568 temporary alimony, and money to sustain the wife’s expenses in the suit é ‘i 3 - 569-589 pendency of suit alone gables wife to : . - 569 but not until the marriage, and husband’s faculties are shown . 7 . : . 570,579 so of money to wustadn the mit 5 : . . 571 [840 ] ANALYTICAL INDEX. Cuar. 27. but not if wife have sufficient separate estate . . nor if husband is destitute . : whether this is the law in the United States maibon the aid of specific statutory oe . . . itison principle. ‘ . North Carolina and Vermont aval : . allowed in the other States i . . both ‘in courts of law and equity ¥ Fi ‘ is for the benefit of both parties. m prevents husband being chargeable for necessaries what kind of marriage must be proved : : 5 allowance in suits of nullity ‘ : : effect of making voluntary allowance . . not a strict right, but generally granted . : . though the husband denies on oath the wife’s allegations qualifications of this doctrine . in New York, wife, if defendant, must disclose defence . a distinction between the two kinds of divorce bill taken pro confesso . . : how costs and expenses finally wciiisted : how in Kentucky . ‘ . - 5 : what the rule in England 3 : observations on the New York rule : ; : when this alimony commences . . F husband having made payments on wife’s aseouitt 7 when wife must apply for this alimony permanent alimony, when commences : ‘ < is an allotment from year to year ‘ 5 ‘ not for term of wife’s life . a : may be increased or diminished by the court at oaaie how when in arrears . . ‘ ‘ . : effect of agreement concerning . i a a enforcing payment of . 7 5 . how if wife die, it being in arrear . 7 ‘ if husband die, it being in arrear 5 how if suit dismissed after an award of . ‘ : statutory alimony on divorce & vinculo ; peculiar phraseology, in vilier cases in Indiana . . 2 : 5 considerations concerning statutory alineny . . principles governing both permanent and temporary alimony no fixed rule as to the amount . : wife support according to her rank, &c. : allowable out of husband’s earnings as well as estate proportion less than from fixed property 71 "ps4. 572 = 573 574-578 . 574 575 : 576 577 : 578 578 79-580 a 579 580, 589 581 581 . 581a 582 583 584 585 586 587 587 . 588 589 588, 589 590 591, 597 592 . 593 594 . 595 594, 595 596, 597 597, 598 > 599 600 - 601 602 . 602a 603-612 603 . 603 604 604 Cuap. 28, ANALYTICAL INDEX. income, the fund to compute out of 7 a = 605 allegation of faculties . a 5 : . 605, 606 reversionary property i . . . . 606 ability of parents of parties —. : 4 . - 606 how income considered sy. : Z . - 607-610 bad management and extravagance 7 : - 608 incumbrances on husband’s estate . - - 606, 608 mansion-house and demesne, how estimated 7 - 609 when husband is partner in firm - . 610 other things besides husband’s income considered, and what 611, 612 mode of making the ia ia . . : - 611 remarks. thereon ‘ F | 7 - 6lla amount sometimes beyond income . A . » 612 as to the sources of the income. . . . 6124 temporary alimony ‘ s i - i 613-615 less than permanent, and why ‘i . 5 613 how much : : : $ : : - 614 New York rule 7 ‘i : - : . 615 permanent alimony : ‘ 5 . 616-620 more than temporary and peculiar principles, ‘ . 616 general rule as to proportion . . . - 617 how fluctuates . . . . . » 617-619 reasons for fluctuation . Fs . 7 é - 619 considerations as to both kinds of alimony, i 619 a-619¢ how much in the United States 5 . + 619 a-620a statutory alimony 2 ‘ 4 621-623 b whether principle of dicen ig same on dows & vinculo as & mensa 3 : 7 : 621-623 b view of the Tennessee court ‘ . 5 + 621, 622 observations. - A ‘ . F 623 how after second marriage : . 3 . 6234 propositions resting on principle : : . + 6236 CHAPTER 28. Restoration oF Property ‘To THE WIFE AND DIvIsIon OF PROPERTY . . 623 c-631 introduction . . : : : - 623¢ this, in some of the States, ‘atonal of alimony . : 624 on what principle made . - ‘ é : 624, 625 portion to guilty wife, and how much . . - 626, 627 whether division must be in specie . . . 628, 629 wife restored to her former estate, &c. ‘ ‘ - 630, 631 [ 842 ] ANALYTICAL INDEX. Cuap. 30. CHAPTER 29. Cusropy or CurLpREN : - 631 a-645 introduction . ‘ . . : . . 631a parental right to guardianship, service, and obedience . - 632 relative claims of father and mother . : 7 . 632 father’s common law right to their custody . . - 633 provisions in divorce statutes . ‘ ‘ ‘: . 634 power, not in the ecclesiastical courts. . . - 635 how in courts of equity, that grant diverces . . . 635 principles which determine the custody in divorce suits . 636-638 making them wards of court . ‘ 638 father’s legal duty of support when staay seapnad es mother 639 order on father to pay mother for support . é 640 question of custody in light of principle : ; . 641-644 - decree settling legitimacy of children . . . "645 CHAPTER $®. Resurts Frowine By Law FROM THE _ Vaurp Divorce SenTency . ‘ . « 646-691 depend upon the kind of divorce : . . - 646 sentence of nullity, its effect . 5 ‘ 647-653 same substantially if marriage voidable, as void : 647, 652 as if there had been no marriage 5 : ‘ 647 but not against third persons . s . . - 648 effect on Jand aliened, &c. i i . + 648-650 husband bound to wife before marriage . . - 650 liability for wife’s debts. . ‘ ‘ 651 third persons’ rights where marriage void ©. : - 652 wife’s remedy where marriage void c é 5 653 consequences of dissolution of valid marriage . 654-675 little light from the English law . 7 a . 654 in respect to status. 2 ie ; - 655-659 b frees both parties, if one . . 7 . - 655-658 how parliamentary divercesin England. é 655 various aspects of the question . : . : 656 as respects statutes against polygamy . . 657, 658 divorce in foreign State . ‘ : 7 a 658 prohibitory clause against marrying — effect of foreign divorce 3 . : . - 659-6595 in respect to rights of property . . . 660-6726 general principle. 5 : : ' : 660 dower at commonlaw . - : 3 661, 662 allowed the innocent wife by statute. . . - 663-665 principles relating to ; ‘ F c - 663 effect of conditional provisions . Fi 664 "£843 J Cuap. 31. ANALYTICAL INDEX. foreign divorce Fi i ° : 664, 665 curtesy 7 . : . . . - 666, 667 choses in action * a ‘ ‘ 668, 669 lands conveyed to husband and wife : : . 669a settlement upon wife. 2 : . 670 annuity to wife : . . . . ; 671 agreement for settlement . ‘ 7 : 672 these points on principle. : : 672 a, 6726 woman as witness for or against her divorced hniband " 673 action of crim. con. : : . . 7 - 674 rights of administration . . 675 divorce from bed and board, its eects a 3 2 676-691 general principles . . : . ‘ ‘ 676 not remarry . . . . . - 677 bond required in gland é . : : 678 how far separates the parties : ‘ 3 2 - 679 reconciliation in pais . ; . - A 7 679 dower . A A . - . 7 - 680 curtesy . . . . . 681 choses in Gea at common law . . : = 682-684 costs due the wife : a 7 , : : 682 choses in action under statutes. 7 . - 685 whether wife may sue and be sued . ‘ : - 686-688 right to administration . é : ‘ ‘ - 689 legitimacy of children F . . : ‘i 690 settlement, &c., upon wife . < . - 691 CHAPTER $i. Tue Srasmity anp EFrrrectT oF THE SENTENCE . . : 692-711 the question stated y ‘ : 692, 693 right of courts to disturb their own matrimonial sentence 694-699 how in the ecclesiastical courts 694, 695 whether applies to other tribunals and other leila of dtivews 695 American statutes ‘ . 7 695 commonlaw . ; 697, 698 how courts may vacate their own fhaiteiaten judemienty . 699 effect of an undisturbed sentence ‘ 5 700-711 conclusive on all persons and tribunals, if free from aad 700 reason of the rule : é : - 702 applies to strangers as well as patties sai privies . . 702 whether binds the king, or government 3 s 703-705" peculiarities of the jactitation suit 3 F : 705 fraud vitiates the judgment ‘ - 2 706, 707 who may set up the fraud ‘ : ‘ - 706, 707 [S44] ANALYTICAL INDEX. Cuap. 32. what facts are a sufficient fraud : 5 i 708, 709 fraud on the law of the domicil . . . ‘ 709 what judgments come within the principles of this chapter 710 effect of judgment of dismissal . . . . 711 BOOK VII. THE AUTHORITY OVER DIVORCE. CHAPTER 38 Avurnonity Ags Exercisrp BY THE Courts. . ; : - 712-766 a question stated. ‘i 3 : : - 712-716 courts obey sovereign will . . z . ®. 718, 714 effect of technical impediments to jurisdiction . . 715, 716 governments determine the status of their own subjects 717, 717 4 how the status of foreigners . : , : - 718 principles applicable to the marriage status . . . 719 courts of the domicil have exclusive jurisdiction . 720 argument of Mr. Burge ‘ : . 720, note no jurisdiction in a country here ndither party has a domicil . : . ‘ - 721-7266 temporary presence makes no difference . . . 721 how the doctrine has been expressed. é : - 722 other analogies of the law . : ‘ . . 723 doctrine of the Scotch courts . . : 724, 724 a, 725 how when foreign and domestic laws are the same . 726 the Scotch doctrine on principle ‘ ‘ - 726 a,°7266 jurisdiction where one party only is domiciled i. « 727-739 husband and wife can have for this purpose separate domi- cils . face : 3 : x 728-730 domicil of one party sufficient and why . 731, 732, 736-736 b why question could not arise in England a é «7838 adverse opinion in North Carolina é = ; 734 doctrine in Maine and generally : a . - 785 Rhode Island and Alabama cases é . 736 a, 7360 defendant’s right to citation. . . 7 787, 738 ¢ the doctrine applies only to the status . . . 739 place where offence committed immaterial ‘ : - 740 domicil at time of offence immaterial 2 ; 741-744 ¢ otherwise in New Hampshire, Pennsylvania, and Louisiana . 741 7" [ 845 ] Cuap. 33. ANALYTICAL INDEX. history and reason of this doctrine : , . 742, 743 which is not elsewhere received « é 5 . 744 now changed by statute in Pennsylvania . . 744.4 reasons against this doctrine ‘ . A . 44¢ place where the marriage was celebrated immaterial . 745-760 so in England as to divorces & mensa .« : : » 745 doubtful, &@ vinculo . ‘ a . i 746 soin Scotland . 5 . F : . 746 conflict between the laws of England and Scotland - 746-752 Lolley’s case . . . . 3 5 - 746 McCarthy v. Decaix . ‘j : 7 : 747 Conway v. Beazley . : 5 . : - 748 Tovey v. Lindsay . : - : A 749 Warrender v. Warrender_ . F ‘ 2 . 750 consequences of this conflict ‘. 7 ; . 751, 752 reasons for the doctrine of lex loci contractus . F 753, 754 against it. . . 755-758, 760 for it . : . 5 758-758 ¢ the English view of perpetual allegiance . : 759 doctrine of the lex loci contractus never seneivad 4 in the United States. 3 A : A is 760 obligation of contracts, constitutional provision concerning, does not apply to divorce 5 : ; . 761 divorce from bed and board, and alimony : ‘ 761 a-763 whether foregoing principles apply to : - ; 762 effect of a foreign decree of . : : 763 + jurisdiction under particular statutes . F ‘ + 764-766 residence bond side — construction of Tennessee act . 765 cause subsequent to removal into the State : . 766 the Rhode Island statute : ; < - 7664 CHAPTER $8. Leerszative Divorces . : - 767-807 origin of parliamentary divorces : ; - 7 767 history of . ‘ a 4 i . 767,768 origin and history of Jegilacive divorces in the United States . 769 whether divorce is competent to the State legislatures — the question stated . . : 7 770 whether legislative divorces impair the chi gation of contracts 771-775 Judge Story’s opinion . : < . 771 judicial opinions in Florida and ee 7 772, 784, note this provision no. relation to marriage . : : 773 if it had, divorce laws could not operate upon prior marri- ages . . . . é 773-775 legislative divorces not snyalid as impairing the obligation ‘of contracts . . 7 ‘ 7 775 [ 846 ] ANALYTICAL INDEX. Cuap. $3. whether they are invalid as being retrospective laws =. = 776- retrospective laws inhibited directly or by implication —. construction of this prohibition generally . . T77- parties may waive this objection, and States may pass retrospective laws impairing their own rights : persons not in interest cannot object. : : application of foregoing principles to divorce acts . other reasons why divorce acts not unconstitutional as vio- lating this provision . ‘I . ; whether tepislative divorces sabonsetaitbcal as an exercise of judicial power. . ‘ , - 786- the question stated . : . : acts, including divorce, may be either legislative ergudtelal legislature establishes rules; judiciary applies them : objection that the statute is special is immaterial A view taken by the Maine and Iowa courts . a 790 argument drawn from the former practice 3 5 general result of the authorities. . ‘ 5 observations on the conflicting cases. 7 exceptions to the right of legislative divorce . : 7 the doctrine under the constitution of Pe fraud in legislative divorces 2 : 793- divorce by the legislature while a cause is pending in court . . . . . . 796 limit to the legislative power. : : » 798- consequence of a legislative divorce . . legislative power over voidable marriage . . . separation, from bed and board . . . . whether the legislature can authorize judicial divorces for causes which have already transpired : - 801 when statutes will be construed to embrace such causes 802 effect, on principle, of statutes embracing antecedent causes ; ; : : . ; conflicting decisions . . : . - 805 view taken by the Tennessee court ; . . [ 847] 785 776 782 783 783 784 785 792 786 787 788 789 , 794 791 792 792 793 795 797 ,797 800 798 799 800 -807 , 803 804 , 806 807 ALPITABETICAL INDEX. A. ABANDONMENT. (See DEsERTION.) ABSENCE, not heard of, as ground of divorce, 540. ACTION, for criminal conversation, 343, 348, 674. (See CriminaL CoNVERSATION.) ADMINISTRATION, rights after divorce & vinculo, 675. ct mensa, 689. ADMISSIONS. (See DerauLt— Conressrons.) ADULTERY, as a ground for divorce, 414 -453. (See ANALYTICAL INDEX, c. 22.) general principles, 415-420. proof’ of, 421-453. parties living in same house after it is once established, 378. recriminatory adultery, 398. groundless charge of, its effect as cruelty, 462. living in, and desertion, a cause of divorce, 541. whether sufficient for alimony without divorce, 555. divorce for, anciently, from bond of matrimony, but not now, in England, 767. parliamentary divorces for, 768. not ordinarily on prayer of the wife, 768. ADVANCE TO THE WIFE, by the husband to sustain her expenses in the suit, 571 et seq. (See AnaLyTicaL INDEX, c. 27.) AFFINITY, as an impediment to marriage, 218-221. (See ANALYTICAL INDEX, c. 12.) [849 ] BIG ALPHABETICAL INDEX. AGE, (See InFrancy.) want of, and age of consent, 191-199. (See ANALYTICAL INDEX, c. 10.) of parties in impotence, 244, 246. AGREEMENT, of parties not sufficient for divorce, 286, 287, 301. effect of an, 301, 304. of marriage, (See Marriage — CONSENT.) _ concerning alimony, effect of, 595. ALIMONY, the doctrine of, 548-623 b. (See AnaLytTicaL INDEX, ¢. 27.) without a divorce, 550-559. (See ANALYTICAL INDEX, c. 27.) cruelty as a ground of, 456, note. as supplemental to a divorce, 567, 568. wife may sue for, after decreed, 687, 688. cannot be awarded without jurisdiction over defendant, 762. effect of a foreign decree of, 763. ALLEGATION OF FACULTIES, nature of, and what to contain, 605, 606. AMBASSADOR’S CHAPEL, marriage in, 137 and note. AMENDMENTS, on what principle allowed in matrimonial suits, 303. ANTENUPTIAL INCONTINENCE, does not invalidate the marriage, 105 and note. aids in proof of connivance, 344. but not of adultery, 442. whether it will justify desertion, 528. ARTICLES OF SEPARATION, (See SurrLeMENT.) effect of a license in, to live in adultery, 347. as showing revival of offence condoned, 386. effect of, in causes of desertion, 529, 530. ASSIGNMENT, by husband to defraud wife of alimony, its effect, 608. ATTORNEY, (See Soxricrror.) of wife, how compensated, 571. B. BASTARD. (See ILLEGITIMATE CHILDREN.) BELIEF, whether witness may testify to his, in causes of adultery, 447. BIGAMY, (See PoLtyeamy.) what in the canon law, 202. [ 850 ] ALPHABETICAL INDEX. COH BROTHEL, visit to, in proof of adultery, 434. GALUMNY, oath of, what it is, 353. may be taken by commission, 724. CANON LAW, its authority in matrimonial causes, 3-8. canons of 1603, 4, 219. CAPACITY. (Sce Unsounp Minp.) CERTIFICATE, of medical men in suits for impotence, 230, 258. CHANCERY. (See Equrry). CHARACTER, evidence of, in divorce suits, 451, 452. CHASTITY, solicitations of, whether revive condoned adultery, 373. in proof of adultery, 433. CHILDREN, as witnesses, 330. custody of, 632-645. (See Custopy or CHILDREN.) how far to obey and serve parents, 632. legitimacy of, settled on decree for divorce, 645. illegitimate after sentence of nullity, 647. wife’s, born after sentence of separation, prima facie illegitimate, 690. CHOSES IN ACTION, husband’s right to wife’s, after a divorce & vinculo, 668, 669. & mensd, 682-685. husband’s right to, may be taken away before they are vested, 781. CIRCUMSTANTIAL EVIDENCE, when sufficient, 428. (See ADULTERY.) CITATION, (See Process.) on what ground defendants entitled to, 737. COHABITATION, meaning of the word, 506, note. how far it will confirm marriage, 122, 188, 190. triennial, in proof of impotence, 245-249. ' (See ANALYTICAL INDEX, ¢. 14.) must be suspended during suit, 359, 527, 560, 561. an implied condonation, 357-387. , (See ANALYTICAL INDEX, c. 19.) [ 861 J CON ALPHABETICAL INDEX. COLLUSION, as a bar to divorce, law and evidence of, 350-353. (See- ANALYTICAL INDEX, ec. 18.) inferable from delay in bringing suit for divorce, 410-413. . COMITY, whether it is the principle on which foreign marriages are held valid, 142. COMMON LAW, (See Divorce.) marriage, how contracted by, 154-166. (See ANALYTICAL INDEX, ec. 8.) of marriage and divorce, — the English, 1-15. (See Anarytica INDEX, ¢. 1.) the American, 16-28. (See AnatyticaL IxpEx, ¢. 2.) COMMONWEALTH, : alimony granted by chancery during the, in England, 551. COMPENSATION. (See Recrim ination.) CONDITION. (See Rank anp Hanits or Lire.) CONDONATION, as evidence of connivance, 345. as bar to a divorce suit, 354-387. (See ANALYTICAL INDEX, c. 19.) of the offence alleged in the recriminatory plea, 405-408. (See ANALYTICAL INDEX, c. 20.) : inferable from delay to bring divorce suit, 410-413. CONFESSIONS, of defendant as evidence in matrimonial suits, 305-313. (See AnaLyticaL Inprx, ¢. 17.) in suits for alimony, 556. CONFLICT OF LAWS, in respect to marriage, 124-151. (See ANALYTICAL INDEX, c. 7.) (And see MarrraGe.) in respect to divorce, 712-766. (See AnALyTicaL INDEX, c. 32.) CONFRONTATION, decree of, in aid of the proofs of adultery, 448. CONJUGAL RIGHTS, suit for restitution of, its origin, 276. nature, 502, 503, 507, 528, 529. CONNIVANCE, as a bar to divorce, 332-849, (See ANALYTICAL INDEX, ¢. 18.) inferable from delay to bring divorce suit, 410-413. [ 852 J ALPHABETICAL INDEX. CON CONSANGUINITY, as an impediment to marriage, 213-221. (See ANALYTICAL INDEX, c. 12.) CONSCIENCE OF THE COURT, what it is, 297. CONSENT, (See Fraup — Error — Duress — Unsounp Minp, &c.) to marry, (See MarrraGe.) to be divorced, its effect on legislative divorces, 784. the essence of marriage, 62 and note, 63-65, 67, 152, 153, 176, 177. formalities do not dispense with, 64, 65. nature of the consent, 66, 68, 85. copula not consent, not marriage, 67, 68. no particular form of words necessary, 69, 173. whether it can be by letter, 70, 71. must intend matrimony, 72-83. distinction between regular and irregular marriages, 76. the question in America, 82, 83. difference, consent and evidence of it, 84, 90-92. must be direct and present, 85, 86. successive declarations of, 87, 88. agreement of secrecy, 89. consent per verba de futuro cum copula, 90-97, 152. this is a rule of evidence, 90, 91, 91 @ and note, 93, 94, 152. by habit and repute, 92. copula after future consent withdrawn, 93, 95. condition of promise, 96. voluntary, after compulsory betrothment, 97. imperfect consent, marriage void, 98. (And see ANALYTICAL INDEX, ¢. 5.) CONSEQUENCES, flowing by law from valid divorce sentence, 646-691, (See ANALYTICAL INDEX, c. 30.) of a legislative divorce, 798. : CONSPIRACY, a species of fraud, 103. (See Fravp.) CONSTITUTIONAL LAW, (See Lecisitative Divorces.) as to impairing the obligation of contracts, 717-775. as to retrospective laws, 776-778. as to the exercise of judicial power by the legislature, 786-792. (And see ANALYTICAL INDEX, ¢. 33.) CONTRACT, is essential as the foundation of marriage, 29, 42, 63, 64, 99, 100 and note, 176-178, 758. 72 [ 853 ] DEC ALPHABETICAL INDEX. CONTRACT, — continued marriage is not, but a status, 29-42. (See AnaLytTicaL InpEx, c. 3.) CONVICTION AND SENTENCE, for crime, as ground of divorce, 539. COSTS, (See Expensss.) husband’s right to wife’s, after divorce & mensd, 682. COUNSEL, (See Soxicrror.) of wife, how compensated, 571. : COURT, (See ConsciENCE OF THE CouRT.) when discharge duty of jury, 453. must administer law as finds it, 187, 234, 267. regard to former decisions in matters of fact, 424. CRIMINAL CONVERSATION, action for, maintainable after divorce, 674. verdict in, rebuts presumption of collusion, 348. whether admissible evidence in a divorce suit, to prove the adultery, 443. CRUELTY, evidence of character in suits for, 452. as a ground for divorce, 454-501. (See ANALYTICAL INDEX, c. 23.) may be the subject of condonation, 370, 371. whether may be pleaded in bar to a suit for adultery, 391, 399, 400. (See RecriminaTion.) evidence of, strengthens proof of adultery, 431, 432. its effect in causes of desertion, 515-517. alimony for, without divorce, 555. CURTESY, after a divorce a vinculo, 666, 667. & mens, 681-685. CUSTODY OF CHILDREN, principles relating to, on a divorce, 631 a—645. (See ANALYTICAL INDEX, c. 29.) D. DEAF AND DUMB, may contract matrimony by signs, 182. DEATH, its effect on alimony, 559, 596-598. DECIDED CASES, how to be considered, 15. [ 854 ] ALPHABETICAL INDEX. DIV DECREE, (See SENTENCE.) for alimony, what should state, 557, 558, 592. for nullity of marriage, what should state, 317, 705. DEED OF SEPARATION. (See ARTICLES or SEPARATION.) DEFAULT, divorce cannot be rendered upon, 301. but it settles the question, and how far, between the parties, 302. DEFENCES, what may be shown in bar of the suit, 331-411. (See Connrvance — Cot_usion — ConponaTIon — Recrimina- TION — Lapse or Time, AND INSINCERITY.) DEGREES, within which marriage prohibited, 215-221. (See Levitican Decrers — Arriniry — CoNsANGUINITY.) Archbishop Parker’s table of prohibited, 219. DESERTION, as ground for divorce, 502-531. (See AnaLyTicaL INDEX, ¢. 24.) Protestant views concerning, 275 and note. remedy for, in England, is the suit for restitution of conjugal rights, 277, Parliament will not grant divorce for, 768. effect of the terms “ wilful” and “malicious” as applied to, 397, note. in suits for cruelty, 473. party’s own declarations as evidence of, 498, note. and refusal to provide, ground for divorce, 537. and living in adultery, ground for divorce, 541. alimony for, without divorce, 555. DISCRETION, how far courts can exercise, in matrimonial causes, 187, 234, 267. of the court, as a ground for divorce, 542-547. ‘ (See AnaLyTIcaL INDEX, c. 26.) such a statute gives jurisdiction over causes of nullity, 266. divorce either from bed and board or bond of matrimony, 294. DISMISSAL, of suit, as evidence of condonation, 367. effect on alimony decreed, 599. effect of judgment of, 711. DIVISION OF PROPERTY, on divorce, 624-631. (See ANALYTICAL INDEX, c. 28.) DIVORCE, common law respecting, 1-28. (See ANALYTICAL INDEX, c. 1, 2.) [ 855 ] DOW ALPHABETICAL INDEX. DIVORCE, — continued. marriage when prohibited after, 210-212, 222, 654-659. history and policy of the law of, 268-289. (See ANALYTICAL INDFxX, c. 16.) decree of, necessary to dissolve the marriage, 329. for adultery, 415-453. (See ADULTERY.) cruelty, 454-501. (See Cruexry.) desertion, 502-531. ' (See DEsERTION.) drunkenness, 533. gross neglect of duty, 534, 535. refusing to maintain wife while having the ability, 536. desertion and refusal to maintain, having the ability, 537. uniting with Shakers, &c., 509, 538. conviction and sentence to imprisonment, 539. absent, and not heard of, 540. desertion and living in adultery, 541. offering indignities, 541 a. discretion of the court as a cause, 542-547. (See Discretion.) such statute gives jurisdiction over causes of nullity, 266. defences in suits for, 831-414. (See AwatyTicaL INDEX, c. 18-21.) leading doctrines concerning, 291-330. (See ANALYTICAL INDEX, c. 17.) legal consequences of, 646-691. (See AnaLyTicaL INDEX, c. 80.) effect of, on matrimonial status, 655-659. foreign laws on foreign divorce, 658, 659. from bed and board, 676-691. jurisdiction over causes of, and conflict of laws relating thereto, 712-766. (See AnatytTicaL Inpex, c. 82.) legislative divorces, 767-807. (See ANALYTICAL INDEX, c. 33.) judicial divorces for past offences, 801-807. (See ANALYTICAL INDEX, c. 33.) DOMICIL, sentence in fraud of law of, 709. determines the jurisdiction over causes of divorce, 720. whether wife’s necessarily follows husband’s, 728-730. DOWER, where parties married in infancy, 197. [ 856 J ALPHABETICAL INDEX. EVI DOWER, — continued. after divorce @ vinculo, 661-665, 739. @ mens, 680. DRUNKENNESS, how affects marriage, 181, 184, note. (See Unsounp Mrnp.) habitual, a cause of divorce, 533. DURESS, avoids marriage, 119-121. as other contracts, 119. what sufficient fear, 120. , consent under arrest, 121. ~ (See Fraun.) DUTY, gross neglect of, a cause of divorce, 534. E. EARNINGS, husband’s, foundation for alimony, 604. ECCLESIASTICAL COURTS, their origin and constitution, 1~3. rules of decision, 4-9. text-books and reports, 10-14. judges, how commissioned, 1. character and qualifications of, 15. no jurisdiction over custody of children, 635. effect of their judgments, 694-705. (See ANALYTICAL INDEX, c. 31.) ECCLESIASTICAL LAW. (See Eccresiasticat Courts.) EQUITY, jurisdiction of, in causes of nullity, 264, 265. alimony on a supplicavit, 550. whether can decree alimony without divorce, and when, 551-559. (See ANALYTICAL INDEX, c. 27.) whether alimony as supplemental to a divorce, 567, 568. custody of children in divorce suits, 635. ERROR, must usually, to vitiate marriage, involve a fraud, 117. doctrine of the canonists, 118. (See Fravp.) EVIDENCE, (See WITNESS.) of marriage, 315-327. (See ANALYTICAL INDEX, ¢. 17.) must be legally as well as morally sufficient, 238. 72" [ 857 ] FRI ALPHABETICAL INDEX. EVIDENCE, — continued. of connivance, 339-349. (See ANALYTICAL INDEX, c. 18.) collusion, 352, 353. condonation, 357-386. (See ANALYTICAL INDEX, c. 19.) cruelty, 497-501. ; (See AnatyticaL INDEX, c. 23.) {Norr. The law and evidence are treated of together throughout the volume; and the reader may therefore consult the several law heads in this index.] EXPENSES OF SUIT, (See Atrorney.) husband pays on both sides, 571 et seq. (See ANALYTICAL INDEX, c. 27.) F. FACTORIES, ENGLISH, marriages in, 137, 139. FALSEHOOD AND CONCEALMENT, as tending to show adultery, 437. FAMILIARITIES, in proof of adultery, 433. FATHER, . his rights and duties at common law, 632, 633. right to custody of children, 633-644. (See ANALYTICAL INDEX, c. 29.) FORCE. (See Durxss.) FOREIGN DIVORCES. (See Conrrict or Laws.) FOREIGN LAW, (See Conriict or Laws.) has no extra-territorial force, 144, 146, 150, 212, 658, 659, 718, 719. FOREIGN MARRIAGES. (See Conruict or Laws.) FORUM, for divorce, the, 712-867. (See AnaLyTicaL INDEX, c. 32, 33.) FRAUD, what, will vitiate marriage, 103-115. Scotch law on the subject, 109-114. (See ANALYTICAL INDEX, c. 6.) combined with insanity, 183. power of equity over marriages void for, 264. vitiates a matrimonial judgment, 699, 706-709. (See AnatyTicaL InpDex, c. 31.) in obtaining legislative divorce, 793-797. ‘FRAUDULENT CONVEYANCE, by husband, effect on alimony, 608, -FRIGIDITY. (See ImpoTENce.) [ 858 ] ALPHABETICAL INDEX. IMP G. GRETNA GREEN, form of marriage in, 69, note. GROSS NEGLECT OF DUTY, a cause of divorce, 534, 535. H. HISTORY, of the law. of divorce, 268-279. (See ANALYTICAL INDEX, ce. 16.) of parliamentary divorces, 767, 768. HUSBAND, (See Wire.) as witness to adultery committed with his wife, 450. right to chastise wife, 485. confine her, 486. duty to support her, 529 a, 560. liability on suit for necessaries furnished the wife, 529 a. not to support children by former marriage, 632. how liable for wife’s debts, 651. HUSBAND AND WIFE, (See Huspanp — Wire.) relative rights and duties of, 342, 343, 514a-514¢ I. IDENTITY, of parties in causes of adultery, 448. IDIOCY. (See Unsounp Minn.) ILLEGITIMATE CHILDREN, (See Lecirimacy.) the same as legitimate, in respect to affinity and consanguinity, 216. ILL-FAME, visit to house of, in proof of adultery, 434. IMPEDIMENTS, (See Nutriry or MaRrraGE.) to marriage, what, 43, 44. : render marriage either void or voidable, 46-62. (See ANALYTICAL INDEX, c. 4.) (And see Voip anD VOIDABLE.) IMPOTENCE, as ground of nullity of marriage, 225-261. (See AnaLyticaL InpeEx, ¢. 14.) jurisdiction in causes of, 104, note, 264. IMPRISONMENT. (See ConvicTion AND SENTENCE.) [ 859 J LEG ALPHABETICAL INDEX. INCEST. (See Arrinity — ConsANGUINITY.) INCUMBRANCES, on husband’s estate, effect of, as to alimony, 606, 608. INDIGNITIES, as ground for divorce, 541 a. INFANCY, (See Parents.) its influence upon the validity of the marriage, 191-199 (See ANALYTICAL INDEX, ce. 10.) not deemed impotent, till eighteen years old, 264. INFANTS. (See CuiLpREn.) INSANITY. (See Unsouny Minp.) INSINCERITY, the defence of, considered, 414 a. INSPECTION, in proof of impotence, 245, 247, 250-259. (See ANALYTICAL INDEX, c. 14.) INTERVENTION, right of all_persons interested in matrimonial causes, 702. INTOXICATION. (See DrunxkENNESS.) J. JACTITATION, principles relating to the suit of, 263, 704, 705. JUDGMENTS. (See DecrrE — SENTENCE — VERDICT.) JURISDICTION, (See LeaisiativE Divorces.) of courts over causes of divorce, 712-766. (See ANALYTICAL INDEX, c. 32.) statute necessary to give the court, in matrimonial causes, 19, 21, 264. but equity may in some cases pronounce marriage void, 264, 265. L. LANDS, (See Dowrer— CurtrEsy.) conveyed to husband and wife, effect of divorce on, 669 a. LAPSE OF TIME, (See Lim1ratron.) as a defence in matrimonial suits, 410-414. (See ANALYTICAL INDEX, c. 21.) in cases of impotence, 248, 243 a. LEGISLATIVE DIVORCES, granted in England, 285, 767-770. parliament proceeds on its own rules, 400. general and constitutional principles concerning, 767-807. (See ANALYTICAL INDEX, c. 33.) [860 ] ALPHABETICAL INDEX. MAR LEGITIMACY, (See InuueitimatTEe CuriipRrey.) of children, as affected by the age of the husband, 198. ‘ settled on,decree of divorce, 654. born after divorce & mensd, 690. LETTERS, whether can be marriage by, 70-71 a. LEVITICAL DEGREES, how binding as to marriage, 49, 50, 219. LEX LOCI DOMICILII, governs in questions of divorce, 720. LIMITATION, (See Larse or Time.) delay to bring suit for impotence, 243. as showing connivance, 346, 410, 413. condonation, 367, 410-413. LOCUS DELICTI, immaterial on the question of jurisdiction, 740. LUCID INTERVAL, marriage celebrated in, valid, 180. proof of, 184, 185. 7 effect of cohabitation during, 188-190. ~ LUNACY. (See ‘Unsounp Minp.) M. MAINTAIN, REFUSING TO, a ground of divorce, 536-537 b. MALFORMATION. (See IupotTENce.) MALICIOUS, meaning of, as applied to desertion, 397, note, 505. MARRIAGE, (See Nutirry oF MarriaGe.) definition and nature of, 29-45. (See ANALYTICAL INDEX, c. 3.) distinction of void and yoidable, 46-62. (See ANALYTICAL INDEX, ¢. 4.) the several grounds of nullity of, 63-261. (See ANALYTICAL INDEX, c. 5-14.) imperfect consent, 63-98. . (See ANALYTICAL INDEX, c. 5.) consent obtained by fraud, error, duress, 99-123. (See ANALYTICAL INDEX, ¢. 6.) where parties domiciled in one country are married in another, 124-151. (See AnatyticaL INDEX, ¢. 7.)° what formalities must accompany the consent, 152~175. (See ANALYTICAL INDEX, ¢. 8.) [ 861 ] NUL ALPHABETICAL INDEX. MARRIAGE, — continued. how statutes concerning, construed, 167-172. want of mental capacity, 176-190. (See ANALYTICAL INDEX, c. 9.) want of age, 191-199. (See ANALYTICAL INDEX, c. 10.) polygamy, 200-209. (See ANALYTICAL INDEX, ¢. 11.) impediments after divorce, 210-212. consanguinity and affinity, 213-221. (See ANALYTICAL INDEX, c. 12.) guilty party after divorce, marrying particeps criminis, 222. peculiar statutory impediments, as whites with negroes, &c., 223. civil law impediments, 224. impotence, 225-261. (See ANALYTICAL INDEX, ¢. 14.) old law in restraint of, 48. modern English, 49-52. American common law concerning, 61. thing of natural and international law, 29, 63, 144, 719. confirmed by legislative act, 781, 792, note. MATRIMONIAL LAW, a branch of the ecclesiastical, 1. MISTAKE, (See Error.) adultery committed under, 418. MOTHER, her rights and duties at common law, 682, 633. right to custody of children, 633-644. (See AnaLyTicaL INDEX, c. 29.) N. NECESSARIES, when husband liable for wife’s, during pendency of divorce suit, 578, 589. whether father liable for children’s, 632. furnished wife, how husband liable for, 529 a. NEGLECT. (See Connrvance— Lapse or TIMe.) NULLITY OF MARRIAGE, (See ImpepIMeEntTs.) what, and how subject divided, 43, 44. the various grounds of, discussed, 63-261. (See MarriaGe.) the suit for, 262-267. (See AnaLyticaL InpEx, ¢. 15.) alimony not granted on decree of, 563. [ 862 ] ALPHABETICAL INDEX. NULLITY OF MARRIAGE, — continued. whether temporary, on suit for, 579. effect of the sentence, 647-653. (See SENTENCE.) O. OATH OF CALUMNY. (See Carumny.) OPINIONS OF WITNESSES, inspectors’, in cases of impotence, 258. . whether adultery was committed, 447. P. PARAMOUDR, as a witness to prove adultery, 449. PARENTS, consent to marriage of minors, 174, 175. PARKER, ARCHBISHOP, table of prohibited degrees, 219 and note. PARLIAMENT, grants divorces for adultery, 767, 768. these divorces clearly valid, 770. PARTIES, in suits for nullity generally, 51, 267. in cases of fraud, 122, 195, 206, 267. unsound mind, 186. want of age, 196. polygamy, 206. impotence, 241, 242. public, a party in matrimonial suits, 297, 300. POLICY, ’ of the law of divorce, 280-290. (See ANALYTICAL INDEX, c. 16.) POLYGAMY, meaning of term, 202. the crime of, 202-204. marriage void for, 205. either party may plead the nullity, 206. effect of, in the civil law and in Louisiana, &c., 207-209. PRACTICE, difference between the Enolish and American, in matrimonial causes, 28 and note, 349, 381, 383. PRECONTRACT, an impediment to marriage, 58, 156. [863] PRE REV ALPHABETICAL INDEX. PRESENTS, as tending to show adultery, 438. PRIOR EXISTING MARRIAGE, renders marriage void, 205. (Sce Potyeamy.) PROCESS, (See CrraTion.) principles relating to the service of, in matrimonial causes, 303 cannot run into a foreign State, 732, 735. PROHIBITION, its origin and nature, 3, 47, 50. PROOF. (See EvipENcE.) PROVIDE, refusal to, for the wife, a ground of divorce, 536. and desertion, ground for divorce, 537. PUBLIC, a party to matrimonial suits, 297, 300. how interested, 300, 303. R. RAVISHMENT, adultery committed under, 418. RANK AND HABITS OF LIFE, their effect in proof of adultery, 439. cruelty, 476, 477. REASON. (See Unsounp Minp.) RECONCILIATION. (See ConponaTion.) RECRIMINATION, as bar to divorce, 388-409. (See ANALYTICAL INDEX, c. 20.) a doctrine analogous to, in cruelty, 491-496. in desertion, 524—528. REFORMATION, its effect on opinions respecting divorce, 275, 278, 767. RESTITUTION OF CONJUGAL RIGHTS, origin of the suit for, 276. nature of the suit, 502, 503, 507, 528, 529. RETROSPECTIVE LAWS, whether legislative special divorce acts are void as being retrospec- tive, 776-785. whether a general statute can authorize a judicial divorce for facts already transpired, 801-807. rules of construction of such statutes, 802, 803. REVIEW, of a matrimonial sentence, 692-699. . (See AnaLyTicaL INDEX, c. 31.) [864] ALPHABETICAL INDEX. TRE s. SENTENCE, (See Decrrz — ConvicTION AND SENTENCE.) of nullity, the effect of, 647-653. (See ANALYTICAL INDEX, c. 30.) stability and effect of the, 692-711. (See ANALYTICAL INDEX, c. 31.) SEPARATION DEEDS. (See Artictrs or SEPARATION.) SETTLEMENT, (See Articres or SEPARATION.) upon wife, how affected by divorce & vinculo, 670. how annuity, 671. how agreement for settlement, 672. effect of divorce @ mensd, 691. SHAKERS, joining the, a cause of divorce, 509, 538. SODOMITICAL PRACTICES, as ground of divorce, 446, 474. SOLICITOR, (See ATTORNEY.) of wife, cannot prevent her dismissing suit until his fees are paid, 301. SPITTING IN THE FACE, as an act of cruelty, 481. STAINS, on defendant’s linen, as showing adultery, 441. STATUS, (See ConTRACT.) marriage is a, not contract, 29-44. (See AnaLyTicaL IypEx, c. 3.) how questions of, determined, 717-719. STATUTES, relating to marriages, how construed, 167-172. whether construed as retrospective, 802, 803. effect of statutes authorizing divorce for past offences, 801-807. STERILITY, (See Impotence.) not alone sufficient for divorce, 229-232. SUPPLICAVIT, whether alimony decreed upon, 550 and note. T. TESTIMONY. (See Evipence — WITNESS.) THREATS, of violence, as cruelty, 465, 466. TIME. (See Lapse or Time.) TRENT, COUNCIL OF, never received in England, 153. nor Louisiana, 163. : 73 [ 865 ] WIF ALPHABETICAL INDEX. TRIENNIAL COHABITATION, in proof of impotence, 245-249. (See ANALYTICAL INDEX, c. 14.) U. UNNATURAL PRACTICES, as ground for divorce, 446, 474. UNSOUND MIND, renders marriage void, 176-190. | (See ANALYTICAL INDEX, c. 9.) effect of adultery committed during, 419. S ee Vv. VENEREAL DISEASE, as showing adultery, 440, 470. attempt, having it, to force the wife to bed, as cruelty, 470. VERDICT, (See SENTENCE.) at common law, as evidence in divorce suits, 348-352. in action of crim. con., effect of, in proof of adultery, 443. in indictments, effect of, 444-446. in proof of cruelty, 445, note. VOID AND VOIDABLE, the distinction as applied to marriage, 46-62. (See AnatyticaL INDEX, c. 4.) marriage when void, 46, 55, 60-62, 98, 122, 187, 199, 205. voidable, 46, 53-56, 60, 61, 199, 221, 261. consequences of the sentence of nullity, 647-653. (See AnaLyTicaL INDEX, c. 30.) whether the legislature can dissolve, by special act, a voidable mar- riage, 799. W. WASTE, by husband in wife’s lands, 631. WIFE, (See HusBanp.) need not be so prompt as husband in bringing suit, 242, 243, 346, 367, 870, 371, 410. power over suit for divorce, 301. as witness to adultery committed with her husband, 450. when husband may confine, 470, 486, 486 a. must obey husband, 485. whether husband may chastise, 485. must conform to husband’s habits and tastes, 487. may be deposed from management of household, 488. [ 86 ] ALPHABETICAL INDEX. wit WIEE, — continued. must occupy same bed with husband, 489. reinvested, on divorce, with her former estate, 680, 631. witness, after divorce a vinculo, for husband, 673. whether sue and be sued after divorce & mensd@, 686-688, whether may have domicil separate from husband, 728-730. WIFE'S SISTER, marriage with, 217, 220. WILFUL, meaning of, as applied to desertion, 397, note. WILFUL ABSENCE. (See DEstRTION.)- WITNESS, (See Evipence — Opinions OF WITNESSES.) who, in suit for nullity, 327. relations and servants, 330. particeps criminis as witness, 449. effect of divorce upon capacity to be, 673. [ 867 J