ADULTERY. § 40. THE proof of this crime is the same, whether the issue arises in an indictment, a libel for divorce, or an action on the case. The nature of the evidence, which is considered sufficient to establish the charge before any tribunal, has been clearly expounded by Lord Stowell, and is best stated in his own language. "It is a fundamental rule," he observes, "that it is not necessary to prove the direct fact of adultery; because if it were otherwise, there is not one case in a hundred in which that proof would be attainable; it is very rarely, indeed, that the parties are surprised in the direct fact of adultery. In every case, almost, the fact is inferred from circumstances, that lead to it by fair inference as a necessary conclusion; and unless this were the case, and unless this were so held, no protection whatever could be given to marital rights. What are the circumstances which lead to such a conclusion, cannot be laid down universally, though many of them, of a more obvious nature, and of more frequent occurrence, are to be found in the ancient books; at the same time, it is impossible to indicate them universally; because they may be infinitely diversified by the situation and character of the parties, by the state of general manners, and by many other incidental circumstances, apparently slight and delicate in themselves, "but which may have most important bearings in decisions upon the particular case. The only general rule, 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; for it is not to lead a rash 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 the legal interpretation must be the same." 1 § 41. The rule has been elsewhere more briefly stated to require, that there be such proximate circumstances proved, as by former decisions, or in their own nature and tendency, satisfy the legal conviction of the Court, that the criminal act has been committed.2 And therefore it has been held, that general cohabitation excluded the necessity of proof of particular facts. Ordinarily, it is not necessary to prove the fact to have been committed at any particular or certain time or place. It will be sufficient, if the circumstances are such case. 1 Loveden v. Loveden, 2 Hagg. Con. R. 2, 3. The husband's remedy against the seducer of his wife may be in trespass, or by an action on the The latter is preferable, where there is any doubt whether the fact of adultery can be proved, and there is a ground of action for enticing away or harboring the wife without the husband's consent; because a count for the latter offence may be joined with the former; and a count in trover for wearing apparel, &c., may also be added. James v. Biddington, 6 C. & P. 589. The declaration for seduction may be as follows; -"For that whereas the defendant, contriving and wrongfully intending to injure the plaintiff, and to deprive him of the comfort, society, aid, and assistance of S., the wife of the plaintiff, and to alienate and destroy her affection for him, heretofore, to wit, on". [inserting the day on or near which the first act of adultery can be proved to have been committed] " and on divers other days and times after that day and before the commencement of this suit, wrongfully and wickedly debauched and carnally knew the said S., she being then and ever since the wife of the plaintiff; by means whereof the affection of the said S. for the plaintiff was wholly alienated and destroyed; and by reason of the premises the plaintiff has wholly lost the comfort, society, aid, and assistance of his said wife, which during all the time aforesaid he otherwise might and ought to have had.” To the damage, &c. 2 Williams v. Williams, 1 Hagg. Con. R. 299. 3 Cadogan v. Cadogan, 2 Hagg. Con. R. 4, note; Rutton v. Rutton, Ib. 6, note. as to lead the Court, travelling with every necessary caution, to this conclusion; which it has often drawn between persons living in the same house, though not seen in the same bed, or in any equivocal situation. It will neither be misled by equivocal appearances, on the one hand, nor, on the other, will it suffer the object of the law to be eluded by any combination of parties to keep without the reach of direct and positive proof.1 And in examining the proofs, they will not be taken insulated and detached; but the whole will be taken together. Yet, in order to infer adultery from general conduct, it seems necessary, that a suspicio violenta should be created. But the adulterous disposition of the parties being once established, the crime may be inferred from their afterwards being discovered together in a bed-chamber, under circumstances authorizing such inference.1 § 42. The nature of this crime has occasioned a slight departure, at least in the Ecclesiastical Courts, from the general rule of evidence as to matters of opinion; it being the course to interrogate the witnesses, who speak of the behavior of the parties, as to their impression and belief, whether the crime has been committed or not. For it is said, that in cases of this peculiar character, the Court, though it does not rely on the opinions of the witnesses, yet has a right to know their impression and belief.5 On the other hand, in the Ecclesiastical Courts, it is reluctantly held that the testimony of one witness alone, though believed to be true, is not legally sufficient to establish the charge of adultery." But in the Courts of Common Law, in America, no such rule 1 Burgess v. Burgess, 2 Hagg. Con. R. 226, 227; Hammerton v. Hammerton, 2 Hagg. Eccl. R. 14; Rix v. Rix, 3 Hagg. Eccl. R. 74. 2 Durant v. Durant, 1 Hagg. Eccl. R. 748. 3 Such seems to have been the view of Ld. Stowell, in Loveden v. Loveden, 2 Hagg. Con. R. 7, 8, 9, 16, 17; and in Burgess v. Burgess, Ib. 227, 228. 4 Soilleaux v. Soilleaux, 1 Hagg. Con. R. 373; Van Epps v. Van Epps, 6 Barb. S. C. R. 320. 5 Crewe v. Crewe, 3 Hagg. Eccl. R. 128. 6 Evans v. Evans, 1 Rob. Eccl. R. 165; Simmons v. Simmons, 11 Jur. 830. is known to have been adopted, even in cases of an Ecclesiastical nature.1 § 43. Where criminal intercourse is once shown, it must be presumed, if the parties are still living under the same roof, that it still continues, notwithstanding those who dwell under the same roof are not prepared to depose to that fact.2 The circumstance, that witnesses hesitate and pause about drawing that conclusion, will not prevent the Court, representing the law, from drawing the inference to which the proximate acts proved, unavoidably lead." § 44. Adultery of the wife may be proved by the birth of a child, and non-access of the husband, he being out of the realm; and if adultery is alleged to have been continued, for many years, and with divers particular individuals, it is sufficient to prove a few of the facts, with identity of her person.5 Adultery of the husband, on the other hand, may be proved by habits of adulterous intercourse, and by the birth, maintenance, and acknowledgment of a child. A married man going into a known brothel, raises a suspicion of adultery, to be rebutted only by the very best evidence.7 His going there, and remaining alone for some time in a room with a common prostitute, is sufficient proof of the crime. The circumstance of a woman going to such a place with a man, furnishes similar proof of adultery.9 The venereal disease, long after marriage, is primâ facie evidence of this crime.10 1 Ante, Vol. 1, § 260. 2 Turton v. Turton, 3 Hagg. Eccl. R. 350. 3 Elwes v. Elewes, 1 Hagg. Con. R. 278. 4 Richardson v. Richardson, 1 Hagg. Eccl. R. 6. 5 Ibid. 6 D'Aguilar v. D'Aguilar, 1 Hagg. Eccl. R. 777, note. 7 Astley v. Astley, 1 Hagg. Eccl. R. 720; Loveden v. Loveden, 2 Hagg. Con. R. 24; Kenrick v. Kenrick, 4 Hagg. Eccl. R. 114, 124, 132. 8 Astley v. Astley, 1 Hagg. Eccl. R. 719. 9 Eliot v. Eliot, cited 1 Hagg. Con. R. 302; Williams v. Williams, Ib. 30. 10 Durant v. Durant, 1 Hagg. Eccl. R. 767. § 45. As to proof by the confession of the party, no difference of principle is perceived between this crime and any other. It has already been shown, that a deliberate and voluntary confession of guilt is among the most weighty and effectual proofs in the law. Where the consequences of the confession are altogether against the party confessing, there is no difficulty in taking it as indubitable truth. But where these consequences are more than counterbalanced by incidental advantages, it is plain that they ought to be rejected. In suits between husband and wife, where the principal object is separation, these countervailing advantages are obvious, and the danger of collusion between the parties is great. This species of evidence, therefore, though not inadmissible, is regarded in such cases with great distrust, and is on all occasions to be most accurately weighed.2 And it has been held, as the more rational doctrine, that confession, proved to the satisfaction of the Court to be perfectly free from all suspicion of a collusive purpose, though it may be sufficient to found a decree of divorce a mensâ et thoro, is not sufficient to authorize a divorce from the bonds of matrimony, so as to enable a party to fly to other connections.3 It is never admitted alone for this purpose; nor must it be ambiguous. But it need not refer to any particular time or place; it will be applied to all times and places, at which it appears probable, from the evidence, that the fact may have been committed. And it is admissible, when made under apprehension of death, though it be afterwards retracted.7 1 Ante, Vol. 1, § 214–219; Mortimer v. Mortimer, 2 Hagg. Con. R. 315. 2 Williams v. Williams, 1 Hagg. Con. R. 304. 3 Mortimer v. Mortimer, 2 Hagg. Con. R. 316. 4 Searle v. Price, 2 Hagg. Con. R. 189; Mortimer v. Mortimer, Ib. 316; Betts v. Betts, 1 Johns. Ch. 197; Baxter v. Baxter, 1 Mass. 346; Holland v. Holland, 2 Mass. 154; Doe v. Roe, 1 Johns. Cas. 25. But, where the whole evidence was such as utterly to exclude all suspicion of collusion, and to establish the contrary, a divorce has been decreed upon confession alone. Vance v. Vance, 8 Greenl. 132; Owen v. Owen, 4 Hagg. Eccl. R. 261. 5 Williams v. Williams, 1 Hagg. Con. R. 304. 6 Burgess v. Burgess, 2 Hagg. Con. R. 227. 7 Mortimer v. Mortimer, 2 Hagg. Con. R. 317, 318. |