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proof of the fact of adultery.(i) To prevent, however, the possibility of being misled by equivocal appearances, the court will always travel to the conclusion with every necessary caution ; whilst on the other hand it will be careful not to suffer the object of the law to be eluded by any combination of parties to keep without the reach of direct and positive proof. If then proof of a specific act is not necessary, it is equally unnecessary that a confession, if there be one, should apply to a particular time and place. The confession, if gen[ *407 ]
eral, would apply to all times and places at which it *might
appear probable, in proof, that the fact might have taken place. Another principle is equally clear, that consession alone cannot be received, so says the canon ;() for without this restriction there would be no check upon the collusion and imposition that might be practised on the court.(k) But a confession may be received, accoinpanied by collateral evidence, which when taken together, form the strongest proof possible. (?)
The court will not in a clear case require a superabundance of proof; therefore if adultery continued many years, attended with pregnancy, and the birth of a child during the husband's absence, be pleaded, it is useless to prove more than a few facts, such as the birth of a child, identity, and non-access.(m) A long adulterous intercourse and cohabitation of the husband, the birth, maintenance, and acknowledgment of a child, may be pleaded, if there is nothing that necessarily affects the wife with a knowledge thereof.(n)
So where the husband's adultery is to be proved by the pregnancy of other women, and the acknowledgment of children, it is not necessary to plead particular acts of adultery.(o) Where the evidence did not amount to judicial proof of the wife's adultery, but her conduct had been so culpable as to raise strong suspicions of criminality, and induce the couri to rescind the conclusion to admit fresh evidence, proof that during the progress of the suit the alleged particeps criminis had frequently visited her alone, and remained late at night, will, coupled with the former evidence, be sufficient to found a sentence of separation.(p) A separation was decreed in a suit for restitution of conjugal rights, brought by the wife, in which the husband pleaded her adultery and proved gross impropriety of conduct, absence from home (unaccounted for), letters from her, containing admissions of guilt, and endeavours to induce individuals to give false representaiion as to where she slept, although the exact place where the adultery was committed was not proved.(9) If the guilt of the husband
*in a suit by the wife, is once established, and he seeks [ *108 ) to deprive her of her remedy
by imputing to her a crimiinal charge of any kind, such charge must be established by evidence
(i) Loveden v. Loveden, 2 Hagg. Cons. R. (n) D'Aguilar v. D'Aguilar, 1 Hagg. 3, 4.
Eccl. 777, Suppl. (j) Canon, 105.
(0) Durant v. Durant, 1 Hagg. Eccl. R. (k) Burgess v. Burgess, 2 Hagg. Cons. R. 746. 227.
(p) Hamerton v. Hamerton, 3 Hagg. Eccl. (l) See post, p. 410-412.
R. 1. (m) Richardson v. Richardson, 1 Hagg. (9) Owen v. Owen, 4 Hagg. Eccl. R. Eccl. R. 6.
which admits of no dispute.(r) The court must receive the evidence of friends, dependants, and servants, who can alone speak as to domestic conduct, with some drawbacks.(s) In examining evidence and proofs the court must not take the charge insulated and detached, but the whole together, and must consider what has been the admitted conduct of the party under similar circumstances.(1) The wit. nesses should be required to answer their belief or impression as to whether adultery has been committed or not, though the court cannot rely on such opinion.(u)
General Cohabitation of Parties.]- The act of adultery may be inferred from the general cohabitation of the parties, so as to exclude the necessity of proof of particular facts, although the parties have separate beds.(v) It may be possible that persons of peculiar and eccentric disposition or habits, may live together in such manner without actual criminal connexion ; and it is physically possible 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 generally, they must presume it in all cases attended with those circumstances.
They cannot adopt the extravagant professions of Platonism for the principles of their decisions.(w)
Lord Stowell observed, there may be imprudence of different kinds and degrees, and there are degrees of imprudence from which a court of Justice will infer guilt. Here are visits, which are described by her confidential servant as made in such a manner that did not deceive her. At Farnham, near Bury, the same witness says " that he had a bed in the house constantly for three-quarters of a year.' Another witness says he lived there. For a long time, wherever she is, he *is there also; and there is one consideration, which extends over the whole history, which
[ *409 ] is, that here is a young woman separated from her husband, and a young officer constantly together. They are living in the same house, though under the bare appearance of separate beds. What is this state of cohabitation? I am not afraid to say that separation might justly follow from this alone, and that this might be the legal proof from which the court will presume guilt, for courts of justice must not be duped. They will judge of facts, as other men of discernment, exercising a sound and sober judgment, on circunstances that are duly proved before them. That a young woman, estranged from her husband, and a young officer, should be living together for months, and at different places, though under the flimsy disguise of separate beds, and that courts of justice should not put upon such intimacy the construction which every body else would put upon it, would be monstrous."(x)
According to the doctrine of the ecclesiastical court, and accord
(r) Turton v. Turton, 3 Hagg. Eccl. R. 128. 350.
(0) Loveden v. Loveden, 2 Hagg. Cons. (8) D' Aguilar v. D’Aguilar, 1 Hagg. R. 4; Cudogan v. Cadogan and Rution v. Eccl. R. 782, Suppl.
Rutton, ib. n. (1) Durant v. Durant, 1 Hagg. Eccl. R. (6) 2 Hagg. Cons. R. 6, n. 748, Suppl.
(2) Chambers v. Chombers, 1 Hagg. Cons. (u) Crewe v. Crewe, 3 Hagg. Eccl. R. Rep. 444, 445.
ing to all the principles in similar cases, if it can be once shown that the parties had been cohabiting in an illicit connection, it must be presumed, if they are still living under the same roof, that the criminal intercourse subsists, notwithstanding those under the same roof are not prepared to depose to that fact.(y)
In cases of adultery proof by two witnesses to distinct facts is sufficient to found a sentence of divorce. In support of a charge of adultery, one clear and unimpeached witness and circumstances in corroboration are all that the law requires.(2)
Going to a Brothel.]—The wife's going to a brothel with another man is evidence of adultery. It is hardly to be conceived that a woman would go to such a place but for a criminal purpose.(a) [ *410 ]
It seems that going to a brothel, and remaining alone
for a *considerable time in a room with a common prostitute, is sufficient evidence from which to infer adultery. A married man going to a brothel, knowing it to be a house of that description, raises a suspicion of adultery, necessary to be rebutted by the very best evidence.(b) When the charge is of keeping certain specific houses, to which the husband took divers loose women, it is sufficient to specify the places without specification of time.(c)
Visits at the Private Lodgings of a Man.]—The law has not affixed the same imputation on the visit of a married woman at a single man's lodging or house as on going to a brothel. Such čisits may be very improper, but the court must be satisfied in its legal judgment that the woman has transgressed, not only the bounds of delicacy, but of duty. In the absence therefore of other circumstances, to induce an inference of guilt, it will not arise from such a visit, where there is no evidence of any improper conduct or behaviour of the parties during such visit.(d) In a case at common law, the visit of the wife to a single man's house, combined with other circumstances, were held sufficient. In that case the windows were shut, and there were letters which could not otherwise be explained.(e)
Venereal Disease. The venereal disease, long after marriage, is prima facie evidence of adultery.(f) The husband's attempts, when affected with venereal disease, to force his wife to his bed, is of a mixed nature, partly cruelty, and partly evidence of adultery, and would remove condonation of either.(g)
Confession of Adultery]-Confession generally ranks high in the scale of evidence; what is taken pro confesso is considered as indubitable proof. The plea of guilty by the party accused excludes fur
(y) Turton v. Turton, 3 Hagg. Eccl. R. 719, 720, Suppl. 350.
(c) D’Aguilar v. D'Aguilar, 1 Hagg. (z) Kenrick v. Kenrick, 4 Hagg. Eccl. R. Eccl. R. 777, Suppl. n. 130. 136. See Crompton v. Butler, 1 Hagg. (d) Williams v. Williams, 1 Hagg. Cons. Cons. R. 460; Huichins v. Denziloe, ib. R. 303. 181; Elwes v. Elwes, ib. 280; Ayliffe, Parer. (e) Rickets v. Taylor, cited ib. 51.
(1) Durant v. Durant, 1 Hagg. Eccl. R. (a) Wood v. Wood, Del. Nov. 25, 1789; 767. Separation was decreed at the suit of 4 Hagg. Eccl. R. 138. See Kenrick v. Ken. the wife by reason of the adultery of the rick, ib.; Timmings v. T'immings, 3 Hugg. husband, the proof being the communication Eccl. R. 82; Loveden v. Loveden, 2 Hagg. to her of the venereal disease. Collett v. Cons. R. 24, 25; Astley v. Astley, 1 Hagg. Collett, 1 Curteis, 678, reversed by the Privy Eccl. R. 719; Ayliffe, Parer. 45.
Council, 141h July, 1840. (6) Ast ey v. Astley, 1 Hagg. Eccl. R.
ther inquiry. Habemus confitentem reum is demonstrative, unless indeed motives can be assigned to it. But though confessions will support charges of the highest *nature, as treason, mur. der, &c., they are not alone sutficient to establish a charge [ *411 ] of adultery.(h) A sentence of divorce will not be given upon the sole confession of the parties. The principle upon which the rule is founded is a fear of collusion between the husband and the wife.(0)
To prevent fraud in these cases, the practice is for the judge (all persons, especially the husband, being removed apart,) to examine ihe woman as to ihe 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.(k)
The 105th canon having required that divorce should not go on confession alone, the wife 'must give a negative issue; and it seems that the court is almost bound to reject an affirmative issue in a suit for separation for adultery, the husband cannot compel the wife either to give in a plea or to administer interrogatories. (1)
Confession is a species of evidence, which, though not inadmissible in cases of adultery, is to be regarded with great *distrust; and though it is not absolutely excluded, but is
[ #412 ] received in conjunction with other circumstances, yet it is on all occasions to be most accurately weighed.(m) Confession of adultery, when perfectly free from all jaint of collusion, when confirmed by circumstances and conduct, ranks amongst the highest species of evidence.(n) It was stated by Lord Stowell that the court was inclined to view confession, when not affected by collusion, as evidence of the greatest importance. At one time a confession, proved to the satisfaction of the court to be perfectly free from all suspicion of a collusive purpose, was admitted as sufficient to found a prayer for mere separation a mensa et thoro, though not for an absolute
(h) 1 Hagg. Cons. R. 304; 2 ib. 316. See the weightiest, and therefore require the 2 Russel on Crimes, 644-654.
greater caution when they come to be han. (i) Gibs. Cod. 534; Oughton, tit. 213; dled and debated in judgment; especially in Conset. 279, 280. There is a remarkable causes wherein inatrimony, having been in instance, showing the inexpediency of pro. the church duly solemnized, is required nouncing sentences of divorce upon the sole upon any suggestion or pretext whatsoever coufossion of the parties. A probibition to be dissolved or annulled, we do strictly was prayed on behalf of the children, who charge and enjoin that in all proceedings in were in danger to be bastardized by collu- divorce and nullities of matrimony, goud sion between the parties. C. married Mary, circumspection and advice be used, and that and had children by her; against whom it the truth may (as far as possible) be sifted was libelled in the spiritual court that he out by the deposition of witnesses, and other had before married Anne, the sister of lawful proofs and evictions, and that credit Mary; the husband and Anne appear and be not given to the sole confession of the confess the matter, upon which, as the re- parties themselves, howsoever taken upon port sets forth, a sentence of divorce was to oath, either within or without the court." pass, whereas in truth C. was never married (k) Conset. 280. Sce Oughton, tit. 213. lo Anne, but it was a contrivance between (1) Crewe v. Crewe, 3 Hagg. Eccl. R. 131. him and his wife to get themselves divorced 133. after they had lived together sixteen years; (m) Williams v, Williams, 1 Hagg. Cons. 2 Mod. 315; Gibs. Cod. 534. The 105th R. 304. canon is as follows:
(n) Harris v. Harris, 2 Hagg. Eccl. R. * Furasmuch as matrimonial causes have 409, 410. been always reckoned and reputed among
divorce pro dirimendo matrimoni vinculo, so as to enable a party to fly to other connexions; but it seems that this distinction is now disregarded, and the same rule applied indiscriminately to both cases.(o) As the rule is founded upon a fear of collusion between the husband and the wife, it seems it will not apply where the wife has written letters to third parties, containing confessions of her guilt, with a view of the same being kept secret, and on which she exercised her ingenuity how to account for her absence from home, and thus allay her husband's well-grounded suspicions.(p) The confession must be free from ambiguity.(9) But it need not apply to time and place. If general, it will apply to all times and places, at which it might appear probable, in proof, that the fact might have taken place.(r)
Confession of Particeps Criminis.)--A particeps criminis is a competent witness to prove the fact of adultery ;(s) and his confession as connected with the act of the wife has been admitted.(l) The declara. tion of a particeps criminis will be but weak evidence; but in the case where criminal intention is fully proved, and nothing but the consent of the other party is wanting, the conduct of such a person is evi[ 413 ]
dence of a *most stringent kind that the act which he was
always attempting to accomplish has actually taken place.(u) A declaration of the paramour in the wife's absence that she had committed adultery previous to the adultery charged in the libel, is not admissible ; but a declaration in her presence, and confirmed by her, is ; and the court cannot reject it on the ground of its reflecting on third parties, nor that it does not establish adultery previous to the charges in the libel.(x). Where the wise is charged with adultery, her conduct and declarations, on a confession of guilt by the alleged particeps criminis being communicated to her, are admissible evidence in behalf of the husband.(y) In Burgess v. Burgess,(a) a declaration of this kind was given in evidence, and that evidence, though objected to, was received. In the same case, in reference to a letter which was not in evidence at all, but which the party charged with the adultery had received from the person wiih whom the alleged adultery was committed, and which she had shown to her maid-servant, Lord Stowell said, when admitting the allegation in which this transaction was pleaded, “it may be of consequence to know how the wise expressed herself on this occasion ; there may be something of joint acknowledgment.” And his lordship, after stating that the husband had informed his wife of the confession of her paramour, and that she admitted "it was true," says, “ by this acknowledgment she adopts the confession, which was the same as if she had confessed it originally herself.”
Identity of Party.)-Care must be taken that the person appearing and confessing the adultery is not some supposititious person, satis
() Mortimer v. Mortimer, 2 Hagg. Cons. 223. R 316.
(u) Soilleux v. Soilleux, 1 Hagg. Cons. (p) Owen v. Owen, 4 Hagg. Eccl. R. 261. R. 376.
(90 Williams v. Williams, 1 Hagg. Cons. (2) Croft v. Croft, 3 Hagg. Eccl. R. N. 304.
318. (+) Burgess v. Burgess, 2 Hagg. Cons. R. (y; Harris v. Harris, 2 Hagg. Eccl. R.
207. (#) Illagg. Cons. R. 148. 376.
(a) 2 Hagg. Cons. R. 233, 234, 235, n. (1) Burgoun v. Burgess, 2 Hagg. Cons. R.