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expressed himself very strongly in favour of the marriage laws being placed upon some solid basis; that some regulations were laid down, a deviation from which would at once entitle the aggrieved party to a divorce, whether that party was of high or low degree, and whether male or female.(9)
A wish was expressed by some learned lords in the year 1796, that the subject of divorce for adultery were submitted by an enactment of the legislature to some regular judicial court, where the crime and the provocation to the crime would be carefully balanced, where the facts and circumstances would be investigated with the temper, the deliberation, and the caution that ought to accompany such an investigation.(r) On another occasion Lord Stowell is reported to have expressed his opinion, " that the law in this country was placed on a footing the most consistent with the general safety; he meant so far, that the legislature should keep the matter of divorce in its own hands, rather than leave it to subordinate courts. By the existing practice it was requisite, to entitle a husband to a divorce, not only to give proofs of the misconduct of the wife, but at the same time of his own good conduct. It was evident there might be shades of difference as to the conduct of the husband, so as to render the decision of the legislature a matter of discretion, which did not safely belong, and could not strictly be entrusted, to a court of justice, whose decisions were to be guided by strict rules of evidence and matters of fact."(s)
It seems probable that this matter will be the subject of discussion during the present session of parliament.(1)
SECT. III.OF ADULTERY.
Adultery is that act by which the marriage bed of another is violated. It is an injury “ ad alterius thorum,” from which, or as some have rendered it ulterius, or short adulter, it has derived its name of adulterium, or adultery.(a)
The offence of adultery must be considered in every well-regulated society as a gross violation of the essential rules of morality. Lord Kaimes observes,(6) that “by adultery, mischief is done both exter. nally and internally. Each sex is so constituted as to require strict fidelity and attachment in a mate. The breach of these duties is the greatest external harm that can befal them; it harms them also internally, by breaking their peace of mind."
Archdeacon Paley remarks,(c) “A new sufferer is introduced, the injured husband, who receives a wound in his sensibility and affections the most painful and incurable that human nature knows. In all other
(9) Hans. Parl. Deb. vol. xxiii. N. S. p. 11 Feb. 1840. 1387.
(a) Tebbs's Essay on Adultery and Di. (1) Lords Thurlow, Loughborough, and vorce, 6; Isydore's Étymol. Grenville, debate on Shadwell's Divorce Bill, (6) Sketches, 4th vol.; see Brown's Phil. 1796, Woodf. Parl. Rep. vol. xi. 339. osophy of the Human Mind, Lecture 84.
(s) Parl. Hist. vol. xxxv. p. 306, 307. (c) Moral and Political Philosophy, book (t) See Debates in llouse of Commons, iii. part iii. ch. 4.
respects, adultery, on the part of the man who solicits the chastity of a married woman, includes the crime of seduction, and is attended with the same mischief. The infidelity of the woman is aggravated by cruelty to her children, who are generally involved in their parent's shame, and always made unhappy by their quarrel.”
In ancient times adultery was inquirable in tourns and leets,(d) and punished by fine and imprisonment; but at the present day this offence belongs to the ecclesiastical courts, and the temporal courts do not take any cognizance of it as a public wrong.
Cognizance of Adultery belongs to Ecclesiastical Courts.]— The jurisdiction of the ecclesiastical courts in cases of adultery is recog. nised by the statute 13 Edw. I., called the statute circumspecte agatis ; by which the judges are commanded to act circumspectly in not punishing the bishops and clergy for holding plea in courts Chris
tian of such things as be merely *spiritual, that is to say, [*387 Jof penance enjoined by prelates for deadly sin, as forni. cation, adultery, and such like.
The statute 27 Geo. 3, c. 44, s. 2, provides that no suit shall be commenced in any ecclesiastical court for fornication or incontinence after the expiration of eight calendar months from the time when such offence shall have been committed ; nor shall any prosecution be commenced or carried on for fornication at any time after the parties offending shall have lawfully intermarried.
Several attempts, indeed, have been made by the legislature to bring this offence within the pale of criminal jurisdiction ; but they have, for the most part, been wholly ineffectual. During the time of the commonwealth, in the year 1650, when, as Blackstone justly remarks,(c) the ruling powers found it for their interest to put on the semblance of very extraordinary strictness and purity of morals, adultery was made a capital crime.(e) But at the restoration, when men from an abhorrence of the hypocrisy of the late times fell into a contrary extreme of licentiousness, it was not thought proper to renew a law of such unfashionable rigour; adultery, therefore, at the present day, as far as respects the temporal courts, is considered merely as a civil injury; and the only remedy which the law affords is an action, whereby the husband may recover against the adulterer a compensation in damages, for the loss of the society, comforts, and assistance of his wife, in consequence of the adultery.
Actions for Criminal Conversation.]— The right to maintain a civil action against an adulterer belongs only to the husband. In order to enable the husband to maintain this action, it is essentially necessary that the husband should present himself in court with clean hands, as has been said, that is, without any imputation of having courted his own dishonour, or having been instrumental to his own disgrace; for if it can be shown that the plaintiff consented to the adulterous intercourse, or that he had suffered his wife to live in a state of prostitution, by which the plaintiff was drawn into the criminal connexion, the plaintiff
(d) 3 Inst. 206 ; Sce Ayliffe's Parer. 52. (0) 4 Bl. Comm. p. 64. As lo ancient punishments annexed to adul. (e) See Scobell's Acts, part ii. p. 121, fol. tery in England, Sce Tebbs on Divorce, ed. ; see 7 Carr. & P. 200, 201; 1 Selw. N. 188-201.
cannot in such a case maintain this action. ** If such a inan were allowed to recover a verdict," said Lord Ken [ *388 ] yon, " the very source and first principles of justice would be con, taminated.” The circumstances in extenuation to lower the amount of damages will vary with every varying case.
Proof of the wife's tainted character, as that she had been before a prostitute, or eloped with another; or proof of her being a woman of notoriously bad character, and that she made the first advances of a criminal nature to the defendant; or proof of the husband's profligate habits, and his criminal connection with other women, or that he felt no affection for his wife, turning her out of his house, and refusing to maintain her, before the intercourse with the defendant; or that he connived at the indecent familiarities of the defendant, and showed the utmost indifference about her reputation and character ; these are some of the many circumstances which manifestly ought to have a very considerable effect with the jury in reducing the amount of damages.(f)
Proof of a settlement and provision for the children has been considered as evidence in aggravation of damages.(g) But in a recent case, evidence as to the defendant's property was rejected by Alderson, B., as improper, on the ground 'thal a plaintiff is entitled to so much damages as a jury think is a compensation for the injury he ,has sustained, and the amount of the defendant's property is not a question in the cause.()
If the husband be himself privy to the act of adultery complained of, he cannot maintain an action for criminal conversation.(i) The plaintiff will be entitled to a verdict, unless he has been in some degree party to his own dishonour, either by giving a general license to his wife to conduct herself as she pleased with men generally, or by assenting to the particular act of adultery with the defendant, or by having totally and permanently given up all the advantage to be derived from her society.(k) When connivance at the wife's elopement is imputed to the husband, he may call witnesses to prove the representation made by her to him of the place to *which
[ *389 ] she was going previous to her elopement.(i) If a married man neglects the society of his wife, and openly lives with other women, in the apparent practice of adultery, he cannot maintain this action.(m) But it was afterwards held, that the misconduct, neglect, or infidelity of the husband, could never be set up as a defence for the adultery of the wife, but only goes in mitigation of damages.(n) It is no bar to an action against a person for criminal conversation with the plaintiff's wife, that the plaintiff had brought another action of the same kind, against another person, and having obtained verdict and judgment, had charged the latter in execution, although the cause of action in both suits accrued during the same period.(o) The action is not barred by the plaintiff's allowing the defendant to remain in
(f) See 2 Phillips on Ev. 204. (g) Bull. N. P. 27. (h) James v. Biddington, 6 Carr. & P. 589.
(i) Worsley v. Bisset, Bull. N. P. 27; Foley v. Lord Peterborough, cited 2 T. R. 166.
(k) Winter v. Henn, 4 Carr. & P. 494.
(n) Bromley v. Wallace, 4 Esp. 237.
his house after a suspicion of his wife's fidelity had been intimated to him.(P)
It is now clearly settled, that if the husband consent to his wife's adultery, it goes in bar of his action; if he be only guilty of negligence, or even of loose and improper conduct, not amounting to consent, it only goes in reduction of damages.(9) Lord Kenyon went further, and ruled that the husband suffering a connexion between bis wife and other men, was equally a bar to the action, as if he had permitted the defendant to be connected with her.(r) But if the wife be a prostitute, and the husband not privy to it, it only goes in mitigation of damages.(8) Proof is admissible in mitigation of damages that the wife had before eloped with others; that her husband had turned her out of doors, and refused to maintain her; that he had kept company with other women; and that he was acquainted with and consented to the defendant's familiarity with her.(1) In this action, it is not matter of defence, but only goes in mitigation of damages, that [ *390 ]
the *plaintiff married an actress, concealed the marriage
from her mother, and very seldom saw his wife, but suffered her to remain living with her mother as if she were a single woman, and allowed her to continue her theatrical performances in her maiden name.(u)
The gist of actions of this sort is the loss to the husband of the comfort and society of his wife, which is always inserted in declara. tions of this kind as a material and substantial allegation. And therefore, a husband, who voluntarily relinquishes the comfort and society of his wife by consenting to a separation from her, cannot maintain an action for criminal conversation.(2) It is otherwise in the case of a temporary separation, where the husband has not given up all claim to be derived from the comfort and society of his wife.
Thus, where the husband and wife entered into a deed with trustees, whereby the husband covenanted with the trustees, to whom certain annuities were transferred, one payable to his wife absolutely, and another for so long time as she should live with her husband, that they should apply certain annuities to the separate use of the wife in case she should live apart from him, with the approbation of the trustees; and he also covenanted, in case of future differences, to permit the wise to live separate from him, if she should on that account find it necessary; and the deed also contained a clause, that in case of separation with the approbation of the trustees, certain of the children should live with and be educated by the wise for a certain period, and that she might visit the others at his house, especially when ill, so as to require the attention of a mother: such a deed was held not to preclude the husband from maintaining an action for adultery, committed while the wife was in fact living apart from him, whether the separation were with or without the approbation of the trustees,
(P) Foley v. Lord Peterborough, 4 Dougl. (t) Cibber v. Sloper, and Robarts v. Marl. 294.
slon, Bull. N. P. 27. (9) Duberly v. Gunning, 4 T. R. 657.
(u) Calcraft v. Earl Harborough, 4 C. & (v) Hodges v. Windham, Peake, N. P. C. P. 499.
(2) Weedon v. Timbrell, 5 T. R. 357 ; 1 (8) Howard v. Burtonwood, 1 Sclw. N. P. Esp. 16. 12, 4th ed.
the case not being within the principle of Weedon v. Timbrell, even allowing that case to be the law to the extent there decided. (y) In Warrender v. Warrender,(z) Lord Brougham said, that the legal presumption of the cohabitation of husband and wife had been carried so far in the common law courts, " that the
[ *391 ] most formal separation can only be given in evidence in mitigation of damages, and not at all as an answer to an action for criminal conversation, the ground of which is the alleged loss of comfort in the wife's society.
An action for damages may be brought in this country for adultery committed abroad ; that circumstance cannot have any
effect even in the mitigation of damages.(a)
The statute of limitations, 21 Jac. 1, c. 16, s. 3, may be pleaded in bar of this action, but the gist of the action being the injury sustained by the husband in consequence of the adultery, the proper plea under that statute is, not guilty within six years.(b). But where ihe statute of limitations is pleaded, the plaintiff may give evidence of acts of adultery which have taken place more than six years since, with a view of showing the nature of the connexion subsisting between the parties within the six years.(c)
Evidence of terms upon which parties lived.]— The manner in which the husband and wife conduct themselves towards each other when together is admissible evidence; it follows, therefore, that letters, which in absence afford the only means of showing their manner of conducting themselves towards each other, are also admissible. The letters of the wife to her husband and others, before the adulterous intercourse, are admissible in evidence to show the state of the wife's feelings, although they may also state a fact, which would not strictly be evidence.(d) Letters written by the wife to the husband (while living apart from each other,) proved to have been written at the time they bore date, and when there was no reason to suspect collusion, are admissible evidence without showing distinctly the cause of their living apart.(e) Proof that a letter pro. duced corresponds as to its contents with a letter which the wife wrote to her husband, and which she read over to the witness, is sufficient to warrant the reception *of the letter in evi
[*392 ] dence.(f) The judgment which a witness forms from the conduct and expressions of the wife to her husband whilst she lives apart from him, as to her affection for him, is evidence.(g) A letter written by the woman previous to her connexion with the defendant is admissible in mitigation of damages.(h) Where the hus, band and wife necessarily, from their situation in life, live separate, and the wife commits adultery, letters written by her during their separation, but before any suspicion of misconduct in the wife, are
(y) Chambers v. Caulfield, 6 East, 244. T. 927.945. (2) 2 Clark & Fion. 527.
(d) Willis v. Bernard, 8 Bing. 376; 1 M. (a) Per Lord Lyndhurst, 2 Clark & Finn. & Scott, 584; 5 C. & P. 342. 562.
(e) Trelawney v. Coleman, 1 B. & Ald. (b) Coke v. Szyer, Burr. 753; Bull. N. P. 90; 2 Stark. 191. 28; 6 East, 388; Macfadzen v. Olivant, 6 (1) Trelawney v. Coleman, 1 B. & Ald. East, 387; see Woodward v. Walton, 2 Bos. 90; 2 Stark. 191. & P. N. R. 476; Ditcham v. Bond, 2 Maule & S. 436.
(1) Elsam v. Faucet, 2 Esp. 562. (c) Duke of Norfolk's case, 12 How. St.