« ForrigeFortsett »
ties are inhabitants of the state at the time of the commission of the adultery: (2.) If the marriage took place in the state, and the party injured be an actual resident at the time of the adultery committed, and at the time of filing the bill: (3.) If the adultery was committed in the state, and the injured party, at the time of filing the bill, be an actual inhabitant of the state.* If the defendant answers the bill, and denies the charge, a feigned issue is to be awarded, under the direction of the chancellor, to try the truth of the charge before a jury, in a court of law. Upon the trial of the issue, the fact must be sufficiently proved by testimony, independent of the confession of the party; for, to guard against all kinds of improper influence, collusion, and fraud, it is the general policy of the law on this subject, not to proceed solely upon the ground of the confession of the party to a dissolution of the marriage contract. The rule that the confession of the party was not sufficient, unless supported by other proof, was derived from the canon law, and arose from the jealousy that the confession might be extorted, or made collusively, in order to furnish means to affect a divorce.b
If the defendant suffers the bill to be taken pro *99 confesso, *or admits the charge, it would be equal
* New- York Revised Statutes, vol. ii. p. 144, see. 38, 39. It was adjudged in New-Jersey, in the case of the State v. Lash, 1 Harrison'I Rep. 380, that a married man is not guilty of adultery, in having carnal connexion with an unmarried woman. In Vermont an act of that kind, between such parties, is punished by fine and imprisonment as in cases of adultery. Revised Statutes of Vermont, 1839, p. 443. So in Tennessee and in some of the other states, the living together by unmarried persons in illicit connection is an indictable offence.
b Burns' Eccl. Law, tit. Marriage, sec. 11. Traite de l'Adultere, par Fournel, p. 160. Pothier, Contrat de Marriage, No. 517, 518. Baxter v. Baxter, 1 Mass. Rep. 346. Betts v. Betts, 1 Johns. Ch. Rep. 197. The New-York Revised Statutes, vol. ii. p. 144, sec. 36, and the Vermont Revised Statutes of 1839, p. 323, provide that no sentence of nullity of marriage can be pronounced solely on the declarations or confessions of the parties, but other satisfactory evidence of the existence of the facts, on which the decree is to be founded, must be required.
]y dangerous to act upon that admission of the bill. and the statute therefore directs, that the case be referred to a master in chancery, to take proof of the adultery, and to report the same, with his opinion thereon. If the report of the master, or the verdict of the jury, as the case may be, shall satisfy the chancellor of the truth of the charge of adultery, he may then decree a dissolution of the marriage; but this dissolution is not, under certain circumstances, to affect the legitimacy of the children. If the wife be the complainant, the legitimacy of any children of the marriage, born or begotten of her before the filing of the bill, are not to be affected by the decree; and if the husband be the complainant, the legitirnacy of children, born or begotten before the commission of the offence charged, are not affected by the decree, though the legitimacy of other children of the wife may be determined by the court upon the proofs in the cause.» The defendant, by way of punishment for the guilt, is disabled from remarrying during the life of the other party. 1"
The statute further provides, that if the wife be the complainant, the court is to make a suitable allowance, in sound discretion, out of the defendant's property, for the maintenance of her and her children, and to compel the defendant to abide the decree. The chancellor is also to give to the wife, being the injured party, the absolute enjoyment of any real estate belonging to her, or of any personal property derived by title through her, or acquired by her industry.0 If, on the other hand, the
» N. Y. Reeised Statutes, vol. ii. p. 145, see. 40, 41. 43. 44. s I hid. sec. 49.
» Pending a suit in chancery by the wife, or in the consistory court by the husband for a divorce, it is a general rule of ecclesiastical law that the court may, under proper circumstances, and in its discretion, allow the wife, by an order on the husband, a sum of money for carrying on the suit as well as for immediate alimony. 2 Dickens, 498. 582. Oughton, 306, tit. 206—209, sect. 7. Earl of Portsmouth v. Countess of P. 3 Addams, 63. Fournel Traite de l'Adult. 365. Burns, til. Marriage, ch. 11. sect. husband be the complainant, then he is entiled to retain the same interest in his wife's real estate, which he would have had if the marriage had continued; and he is also entitled to her personal estate and choses in action, which
she possessed at the time of the divorce, equally * 100 as if *the marriage had continued; and the wife
loses her title to dower, and to a distributive share in the husband's personal estate.11
These are the statute provisions in New-York, on the
8. 2 Haggard, 199. 201. Mix v. Mix, 1 Johnson's Ch. Rep. 108. Denton v. Denton, Ibid. 364. The New-York Reeised Statutes, vol. ii. 148, sect. 58, have expressly enforced this reasonable doctrine by declaring that in every suit for a divorce or separation, the court in its discretion, may require the husband to pay any sum necessary to enable the wife to carry on the suit during its pendency. But if the bill for divorce be filed by the husband, the wife will not be allowed alimony, or an order for monies to enable her to defend the suit, until she has by answer disclosed the nature of her defence. Lewis v. Lewis, 3 Johnson's Ch. Rep. 519. In North Carolina, the courts have no power to assist the wife in the above cases, pendente lite, and Mr. Justice Gaston questions the policy of giving any such power. Wilson v. Wilson, 2 Der. <J- Battle, 377. I am entirely convinced, however, from my own judicial experience, that such a discretion is properly confided to the courts. In New Hampshire, alimony is understood to be a provision made to the wife upon a divorce a einculo; and it is not allowed in any other case. Parsons v. Parsons, 9 N. H. Rep. 309.
» N. Y. Reeised Statutes, vol. ii. p. 145, 146. sec. 45 48. The Reeised Statutes of Massachusetts, of 1835, part 2. tit. 7. ch. 76. sec. 27, 28; and of Vermont, 1839, p. 325, 32fi, give the court similar discretion on divorce, touching the care and maintenance of the minor children, and the restoration to the wife of her estate, and of alimony, if necessary, if she be the innocent party. So, in New-Jersey, the jurisdiction in all cases of divorce is in the court of chancery proceeding regularly by bill as in other cases. The bill may be filed, if either party was an inhabitant of the state at the time of the injury complained of; or where the marriage was in the state and the complainant a resident therein at the time of the injury and the filing of the bill;—or where the adultery was committed in the state, and either party a resident when the bill was filed. Elmer's Digest, 139. In the case of Charruaud v. Charruaud, in chancery before Assistant V. C. in 1847, iVeioYorfc Legal Obsereer, vol. 1.134, it was adjudged that upon the principles of the common law, a divorce of the wife a einculo for adultery annuls every provision made for her in marriage articles or a marriage settlement in the nature of jointure or otherwise, as well as any provision in articles executed upon a separation.
subject of a divorce a »inculo matrimonii; and it is requisite, if the marriage was solemnized out of the state, distinctly and certainly to make it appear upon the bill, that both parties were inhabitants of the state at the time of the commission of the adultery; or that the offence was committed within the state, and the injured party an actual inhabitant at the time of exhibiting the bill. It must also appear, if the parties were married within the state. that the complainant was an actual resident at the time of the offence, and of bringing the suit; and this means, that the party's domicil was here, or that he had fixed his residence animo manendi."- Though the fact of adultery
* Mix v. Mix, 1 Johns. Ch. Rep. 204. Willamson v. Parisien, Ibid. 389. N. Y. Reeised Statutes, vol. ii. p. 144. sec. 38. It was declared, in Indiana, by law, in 1829—1830, that the laws concerning divorce, applied only to citizens who had resided a year within the state. In Ohio, no petition for a divorce is sustained, unless the husband or wife applying has been a bona fide resident in the state for two years, and an actual resident at the time, of the county where the application is made. In that case the application is to be sustained, whether the marriage, or the cause of divorce, occurred within the state, or elsewhere. Statutes of Ohio, 1824, 1£27. In Michigan, the petitioner in equity for a divorce must have been a resident of three years. Act of April 4th, 1833. So in North Carolina, in application for a divorce, the party applying must have resided within the state for three years, immediately preceding the filing of the petition or bill, unless it be in the case of a divorce a mensa for cruel treatment. There is this farther check, that the facts forming the ground of the complaint in every case must have existed to the knowledge of the party at least six months prior to the suit. 1 N. C. Reeised Statutes, 1837, p. 240. In Missouri, the petitioner for a divorce must have had a permanent residence of one year, and the cause for it must have happened within the state. R. S. of Missouri, 1835, p. 225. In Maine, it is held not to be necessary, as a foundation of jurisdiction in a suit for a divorce, unless made so by positive statute, that the fact of adultery should have been committed within the state, in whose tribunals a decree of divorce is sought for that cause. Harding v. Alden, 9 Greenleaf 's Rep. 140. The Vermont statute has wisely guarded against imposition and abuse of jurisdiction on this subject by declaring that no divorce shall be decreed for any cause, if the parties had never lived in the state as husband and wife; nor unless the libellant had resided in the state for one year next preceding the suit; nor if the cause accrued out of the state, unless the parties had, before it occurred, lived as husband and wife in the state ; nor unless one of them was then be made out, it does not follow, as a matter of course, that a divorce is to be awarded, for the remedy by divorce is purely a civil and private prosecution, under the control and at the volition of the party aggrieved, and he may bar himself of the remedy, in several ways, by his own act. (1.) Neither party can obtain a divorce for adultery, if the other party recriminates, and can prove a correspondent infidelity. The delictum, in that case, must be of the same kind, and not an offence of a different character.a The compensatio criminis is the standard canon law of England in questions of divorce, and it is founded on the principle that a man cannot be permitted to complain of the breach of a contract which he had first violated; and the same principle, it is to be presumed prevails in the United States.b (2.) So, *101 if the injured *party, subsequently to the adultery, cohabits with the other, or is otherwise reconciled to the other, after just grounds of belief in the fact, it is in judgment of law, a remission of the offence, and a bar to the divorce. This is a general principle every where pervading this branch of jurisprudence.0 (3.) By active
living in the state. Revised Statutes of Vermont, 1839, p. 324. So, in New Hampshire, a divorce was refused, where the parties at the time of the divorce, resided out of the state. Clark v. Clark, 8 JV. Hamp. 21.
* Johnson v. Johnson, 4 Paige's Rep. 460. In Eldred v. Eldred, Curteis, 376, and Dillon v. Dillon, 3 lb. 86 it was held that the wife could not set up a charge of cruelty in bar of her husband's remedy of divorce for adultery, nor will malicious desertion be a bar said Dr. Lushington ubi supra.
b Oughton's Ordo Judiciorum, vol. i. tit . 214. Forster v. Forster, 1 Haggard's Consist. Rep. 144. Proctor v. Proctor, 2 ibid. 292. Chambers v. Chambers, 1 ibid. 439. Astley v. Astley, 1 Hogg. Eccl. Rep. 714. Beeby v. Beeby, ibid. 789. Wood v. Wood, 2 Paige's Rep. 108. Whittington v. Whittington, 2 Dev. d> Battle, 64.
« Oughton's Ordo,ub supra, Burns Eccl. Law, tit. Marriage, sec. II. 1 Ersk. Inst. 113, 114. 6 Mass. Rep. 147, anon. Williamson v. Williamson, 1 Johns. Ch. Rep. 492. Condonation is a conditional forgiveness, and founded on a full knowledge of all antecedent guilt. Bramwell v. Bramwell, 3 Hagg. Eccl. Rep. 629. Ibid. 351. Delliber v. Delliber, 9 Conn. Rep. 233. See, also, Code Napoleon, art. 272. Civil Code of Louisiana, art. 149. Van Lceuwen's Com. on the Roman-Dutch Law, p. 84, to the