consumed in mere domestic quarrels. The court has no right to consider whether a separation might not in point of fact be for the happiness of the parties, nor whether one party or the other has been guilty *of misconduct, nor whether there has been a want of that affection which ought to subsist in the matrimonial [ *428 ] state; for it must not be forgotten that marriage is in this country considered of that sacred and binding force, that parties who enter into such a connection are not for slight and unimportant reasons to separate themselves from the duty of cohabitation. 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 circumstances 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. Therefore, where the court was of opinion that all the circumstances pleaded would fail, if proved, to establish that the wife could not return to cohabitation without risk to life or limb, the libel was rejected.(")

The husband's conduct is legal cruelty if by cohabitation the wife is exposed to bodily hazard and intolerable hardship. On proof of such conduct and the husband's adultery with three different women, a sentence of separation a mensa et thoro was pronounced on the wife's prayer, and the husband condemned in costs.(s)

Blows.]-A blow between parties in the lower conditions and in the higher stations 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 ferocity; if a nobleman of high rank and ancient family

uses personal violence to his wife, his equal in rank, the [ *429 1

choice of his affections, the friend of his bosom, the mother of his offspring-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.(t)

But a mere violent act, which occasioned pain and injury to the wife, unaccompanied by any threat or any intentional blow, will not warrant a sentence of separation, for the court has no authority to

(r) Neeld v. Neeld, 4 Hagg. Eccl. R. 263. 265, 266.

(8) D'Aguilar v. D'Aguilar, 1 Hagg.

Eccl. R. 773.

(1) Per Sir J. Nicholl in Westmeath ▼ Westmeath, 2 Hagg. Eccl. R. 73.

interfere in cases short of personal violence or a reasonable apprehension of it.(u)

Where circumstances of sufficient violence are admitted to proof, minor circumstances may also be admitted, but they must not be light or trifling, but they should be of the same character as the principal charges, though not to the same extent. An interdict of the wife's intercourse with her family is not cruelty to a wife, though under circumstances it may tend to illustrate the temper of the husband.(x) For although it may be a harsh exercise of marital authority to forbid the wife to hold intercourse with her own family, there may be circumstances which will justify such a prohibition.(y)

What Words constitute Cruelty.]-Words of abuse and reproach are not, but words of menace, intimating a malignant intention of doing bodily harm and affecting the security of life, are legal cruelty. If words of menace raise a reasonable apprehension it matters not whether they be addressed to the wife or a third person. The court must not wait till threats are carried into execution, but must interpose when words raise a reasonable apprehension of violence and excite such terror as makes life intolerable.(z) Words of menace, if

[ *430 ] accompanied with a probability of bodily violence, will be sufficient. It may be enough if they are such as inflict indignity and threaten pain. It will be the duty of the court to release the suffering party from continuing cohabitation under such treatment. (a) Words of mere present irritation, however reproachful, will not enable the court to pronounce a sentence of separation. The wife must try to disarm them by weapons of civility and kindness; and if they fail, according to the law of this country, she must submit to the misfortune as one of the consequences of her own inju dicious choice. Passionate words do not, according to the vulgar observation, break bones: and it is better that they should be borne with, than that domestic society should be broken up, and a husband and wife thrown as loose characters upon the world. Words of menace, importing the actual danger of bodily harm, will justify the interposition of the court, as the law ought not to wait till the mischief is actually done. But the most innocent and deserving woman will sue in vain for its interference for words of mere insult, however galling; and still less will that interference be given if the wife has taken upon herself to avenge her own wrongs of that kind, and to maintain a contest of retaliation.(b)

Other acts when and when not Cruelty.]-Spitting on the wife is a gross act of cruelty, and in an old case, (c) a prohibition was denied in which the only act of cruelty pleaded was spitting in the face which was adjudged sufficient. But the husband's taking to a separate bed is not pleadable as cruelty.(d)

(u) Neeld v. Neeld, 4 Hagg. Eccl. R. 270. See post 431.

(x) Neeld v. Neeld, 4 Hagg. Eccl. R. 268, 269.

(y) Waring v. Waring, 1 Hagg. Cons. R. 159. See Maimonides de Matrim. Judæorum, ch. 13, s. 14.

(z) D'Aguilar v. D'Aguilar, 1 Hagg.

Eccl. R. 775, 776.

(a) Kirkman v. Kirkman, 1 Hagg. Cons. R. 409. (b) Oliver v. Oliver, 1 Hagg. Cons. R.

364.

(c) Clobern's case, Hetley, 149; D'Aguilar v. D'Aguilar, 1 Hagg. Eccl. R. 776. (d) Ib. 775.

The husband's attempt, when affected with the venereal disease, to force his wife to his bed, is of a mixed nature, partly cruelty and partly evidence of adultery.(e) The husband's attempt to debauch his own women servants is a strong act of cruelty.(f) A groundless and malicious charge against the wife's chastity followed up by turning her out of doors, and not attempted to be pleaded [ *431 ]

nor proved, may be alleged with other acts of cruelty as

a ground for separation.(g)

In a suit for divorce by reason of the husband's adultery and cruelty, the court will not inquire into his depriving his wife of her separate property; but it is otherwise as to her paraphernalia. Obtaining the wife's separate property by imposition cannot, but compelling her by threats to go any where, may be pleaded as cruelty.(h) The refusal of the husband upon request to furnish necessaries to his wife, either by himself or his agent, is a culpable act; but if a wife does not think fit to make any request or demand, the husband cannot be fixed with cruelty merely because he refuses one particular mode of supplying her with money, and which mode he was never bound under any circumstances to practice.(i) The not allowing the wife to have access to her child, though the husband certainly may do it, yet it is a most improper exercise of the marital power, very disgraceful to the person who practises it, and a most wanton and unnecessary outrage upon the feelings of a mother.(k)

Minute acts of cruelty should not be pleaded, but properly come out in evidence. When the charge is of keeping certain specified houses, to which the husband took divers loose women, specification of place is sufficient, without specification of time. A long adulterous intercourse and cohabitation, the birth, maintenance, and acknowledgment of a child, may be pleaded, if there is nothing which necessarily affects the wife with the knowledge thereof.(?)

Cruelty without personal Violence.]-Cruelty may be without actual personal violence; and such cruelty, at least when coupled with adultery, may found a sentence of separation on both grounds, although the parties had separated upwards of three years, and the husband was not seeking a return to cohabitation, and the husband had been bound, with two sureties, under articles of the peace exhibited against him, to keep the peace towards his wife. (m) It is not [ *432 ] necessary to prove acts of personal violence to substantiate a charge of cruelty: it is the acknowledged doctrine that danger to the person and health is sufficient. In Robinson v. Robinson(n) ill

nature, violent passions, and frequent abuse of his wife, were proved against the husband from the time of his marriage; he had frightened her so as to occasion several fits of illness; he refused her medical assistance; in short, he had been a bad husband, but had not beat his wife, that charge was not brought against him; several instances of adultery were proved, and the court pronounced for a divorce on both grounds.(0)

Deliberate insult, confinement, adulterous connection with a person kept in the same house, and invested with the government of the family, and other acts calculated to distress and harass a wife, as connected with adultery, proved, have been held to be acts amounting to cruelty in the man.(p)

Irritability of Temper, with ungoverned Passion.]—The court decreed a separation, where the misconduct imputed to the husband was not that of cold malignity, or savage, continual unfeeling brutality of disposition, nor satiated possession, producing disgust and hatred; the acts charged were not inconsistent with occasional kindness, with the existence and continuance of strong attachment, nay, even with violent affection; but the main features of the alleged cruelty were great irritability of temper, producing ungovernable passion, ending occasionally in acts of personal violence, and of course attended with the danger of a repetition of personal mischief. (q)

What wounds mental Feelings.] - What merely wounds the mental feelings is in few cases to be admitted, where they are not accompanied with bodily injury, either actual or menaced. Mere austerity of temper, petulance of manners, rudeness of lan[ *433 ]guage, 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 the 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 resistance 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 farther; 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 guage 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 aggravation, yet they cannot constitute

(0) See Otway v. Otway, 2 Phill. R. 95. (p) Smith v. Smith, 2 Phill. R. 207.

(q) Westmeath v. Westmeath, 2 Hagg. Eccl. R. Suppl. 73, 74.

cruelty where it would not otherwise have existed, of course, the denial of little indulgences and particular accommodations, which the delicacy of the world is apt to number amongst its necessaries, as the use of a carriage or servant, is not cruelty.(r)

Domestic Quarrels not Ground of Interference.]—It is not the habit of the court to interfere in ordinary domestic quarrels; there must be something which makes cohabitation unsafe; for there may be much unhappiness from unkind treatment, and from violent and abusive language; but the court will not interfere; it must leave parties to the correction of their own judgment; they must bear as well as they can the consequences of their own choice. Word of menace are different; if they are likely to be carried into effect, the court is called upon to prevent their being carried on [ *434 ] to mischief.. Where blows are resorted to, the case is still more aggravated; there mischief is actually done or inflicted to a certain degree, and a divorce a mensa et thoro will be decreed.(s)

Provocation on part of Wife.]—A wife is not entitled to a divorce by reason of the cruelty of her husband, if she is a woman of bad temper, and provokes his ill-usage ;(t) her remedy in such cases is by her changing her own manners.(u)

A husband is not to be deprived of his marital rights because a wife pertinaciously resists them, and in the course of that resistance encounters accidental injuries which never were meant to be inflicted. As where an accident occurred in consequence of the vexatious and unjust refusal of the wife to deliver keys, to the possession of which the husband was entitled, and in the course of his endeavours to obtain them from her by force she was slightly bruised.(x) The court, in releasing a wife from cohabitation on the ground of cruelty, presumes her not to have been the authoress of her sufferings; it is on the presumption that her own conduct has been proper, if not, 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, provoke the ill-treatment, and then complain. The law however would interfere if this misconduct was visited by the husband with intemperate violence; there may be failings, if inordinately resented and visited with a harsh and more than due authority, upon which the court would not decline to interfere. But if her conduct be totally incompatible with the duty of a wife, if it be violent and outrageous, if it justly provoke the indignation of the husband and causes danger to his person, she must reform her own disposition and manners; she must remedy the evil by changing her own measures, and it is to be hoped that the evils will cease with the behaviour which produced them; if they do not, she may then complain to the court, and solicit its interference with effect.(y)