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. 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 pre *101 sumed prevails in the United States.b (2.) So, 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.c (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 N. Hamp. 21. a Johnson v. Johnson, 4 Paige's Rep. 460. In Eldred v. Eldred, Curteis, 376, and Dillon v. Dillon, 3 Ib. 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 Hagg. Eccl. Rep. 714. Beeby v. Beeby, ibid. 789. Wood v. Wood, 2 Paige's Rep. 108. Whittington v. Whittington, 2 Dev. & Battle, 64. C Oughton's Ordo, ub supra, Burns Eccl. Law, tit. Marriage, sec. 11. 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 Leeuwen's Com. on the Roman-Dutch Law, p. 84, to the procurement, or passive and conscious toleration of hist wife's guilty conduct. It is also well established, that though mere time is no bar in the case of a woman,b yet that lapse of time, or a long tacit acquiescence of the husband in his wife's infidelity, even without cohabitation, but without any disability on his part to prosecute, will be deemed equivalent to a condonatio injuriæ, and bar a prosecution for a divorce, unless the delay be satisfactorily accounted for. The husband is not to be permitted, at any distance of time, to agitate such inquiries, and especially where his tacit acquiescence continued after his wife had formed another matrimonial connexion, and he slumbered, in uncomplaining silence, until she became the mother of a new race of children.c The same point of condonation. Condonation, or the forgiveness of the offence, is of two kinds; 1. By an express forgiveness or reconciliation; 2. A tacit remission of the offence by a return to connubial intercourse. Snow v. Snow, Consist. Court, London. 1842. Condonation is not presumed as a bar so readily against the wife as against the husband, for she has not the same control. Condonation is accompanied with an implied condition, that the injury shall not be repeated; and a breach of the condition, even though committed out of the jurisdiction of the court, revives the right to remedy for the former injury. Durant v. Durant, 1 Hagg. Eccl. Rep. 733, 752, 761, 786, 793. Johnson v. Johnson, 4 Paige's Rep. 460. Burr v. Burr, 10 Paige, 20. Condonation is accompanied with this further condition in the English law, that the wife shall be treated with conjugal kindness. Durant v. Durant, sup. Bramwell v. Bramwell, 3 Hagg. Eccl. Rep. 635. Johnson v. Johnson, 14 Wendell, 637. A guilty connivance on the part of the wife to her husband's adultery, is not to be established without grave and conclusive proof. 3 Hagg. Eccl. Rep. 351. To constitute a bar, by the ecclesiastical law, to the husband's complaint of the adultery of the wife, arising from his presumed consent, there must be corrupt connivance on his part. He must intentionally invite, or encourage licentious conduct in the wife, or be knowingly accessory or privy to the adultery. Rogers v. Rogers, 3 Hagg. Eccl. Rep. 57. Rix v. Rix, ibid. 74. Timmings v. Timmings, ibid. 76. Lovering v. Lovering, ibid. 85. Moorsom v. Moorsom, ibid. 87. Crewe v. Crewe, ibid. 129, 131, 133. Hoar v. Hoar, ibid. 137. Gilpin v. Gilpin, ibid. 150. Popkin v. Popkin, 1 Hagg. Eccl. Rep. 765, note. • Williamson v. Williamson, ub supra. Best v. Best, 2 Phillimore's Rep. 161. Mortimer v. Mortimer, 3 Hagg. Consist. Rep. 313. Whitting ton v. Whittington, 2 Dev. & Batt. 64. statute law of New-York has declared, that the court may refuse to decree a divorce, though the fact of adultery be established. (1.) If the offence was committed by the procurement or with the connivance of the complainant. (2.) If it has been forgiven, and the forgiveness proved by express proof, or by the voluntary cohabitation of the parties with knowledge of the fact. (3.) Where *102 the suit has not been brought within five *years after the knowledge of the adultery. (4.) Or where the complainant has been guilty of the same of fence. All these exceptions, except the positive limitation as to time, were, as we have already seen, settled and acknowledged principles of general jurisprudence applicable to the subject. The policy of New-York has been against divorces from the marriage contract, except for adultery. We meet with a great variety of practice and opinion on this subject, in this country and in Europe, and among ancient and modern nations; but the stronger authority, and the better policy, are in favour of the stability of the marriage union. The ancient Athenians allowed divorces with great latitude, but they were placed under one important check, for the party suing for a divorce was obliged to appeal to the magistrate, state the grounds of complaint, and submit to his judgment. It was a regular action, analagous in substance to a bill in chancery; and if the wife was the prosecutor, she was obliged to appear in person, and not by a proctor. The Greeks were comparatively exemplary in their domestic relations, but the graver Romans permitted the liberty of divorce to a most injurious and shameful degree. The maxim of the civil law was that matrimonia debent esse libera. a N. Y. Revised Statutes, vol. ii. p. 145, sec. 42. b Plutarch's Life of Alcibiades. Potter's Greek Antiq. 296, 297. Taylor's Elements of the Civil Law, 352. 353. c It is understood that Solon at Athens, as well as Augustus at Rome, made adultery a public crime, and triable by a public prosecution. Either party might renounce the marriage union at pleasure. It was termed divortium sine causa or sine ulla querela; and the principle is solemnly laid down in the Pandects, that bona gratia matrimonium dissolvitur.a We find the Roman lawyers discussing questions of property depending upon these voluntary divorces, or in which Titia divortium a Seio fecit; Mavia Titio repudium misit. This facility of separation tended to destroy all mutual confidence, and to inflame every trifling dispute. The abuse of divorce prevailed in 103 the most polished ages of the Roman republic, and it was unknown in its early history. Though the twelve tables gave to the husband the freedom of divorce, yet the republic had existed 500 years when the first instance of a divorce occurred.c The Emperor Augustus endeavoured by law to put some restraint upon the facility of divorce; but the check was overpowered by the influence and corruption of manners. Voluntary divorces were abolished by one of the novels of Justinian, and they were afterwards revived by another novel of the b Dig. 24. 3.34 and 38. See, also, Heinecc. Antq. Rom. App. lib. i. No. 44 to 49, where the learning on the subject is abundant. • The institutions of Romulus, tending to render the marriage union indissoluble, were very much praised by Dionysius of Halicarnassus, Antiq. Rom. lib. 2. According to Plutarch, Romulus instituted, that if the husband abandoned his wife without due cause, he forfeited one half of his goods to the wife, and the other half to the Goddess Ceres. How beautifully Horace recommended the value and continuance of the marriage union, must be familiar to every classical scholar: Filices ter et amplius, Quos irrupta tenet copula; nec malis Suprema citius solvet amor die. Lib. 13 car. 14. On the other hand, the Re Coman philosophers, poets and satirists, held up to public scorn and indignation the wanton and extreme abuse of the liberty of divorce. Seneca de Benef. iii. 16. Martial, vi. 7. Ibid. lib. 9. Epig. 16. Juvenal, Sat. 6, v. 228. & Suet. ad. Aug. 34, Emperor Justin.a In the novel restoring the unlimited freedom of divorce, the reasons for it are assigned; and while it was admitted that nothing ought to be held so sacred in civil society as marriage, it was declared, that the hatred, misery, and crimes, which often flowed from indissoluble connexions, required, as a necessary remedy, the restoration of the old law, by which marriage was dissolved by mutual will and consent. This practice of divorce is understood to have continued in the Byzantine or eastern empire, to the 9th or 10th century, and until it was finally subdued by the influence of Christianity. In modern Europe divorces are not allowed in the Roman Catholic countries, because marriage is *104 considered a "sacrament, and held indissoluble during the life of the parties. This was formerly the case in France; and it was the general doctrine in the Latin, though not so either in the Greek or Protestant churches.d But the French revolution, like a mighty inundation, swept away at once the laws and usages of ages; and, at one period, the French government seemed to have declared war against the marriage contract, and six thousand divorces are said to have taken place, in the city of Paris, in the space of two years Dict. du Dig. tit. Divorce, No. 617, 618. Nov. 117. c. 8, 9. b Nov. 140. c 2 Domat. 651. Traité de l' Adult., par Fournel, 366. 370. Traité du Contrat de Marriage, par Pothier, sec. 462, 466, 467. d The canon of the Council of Trent, de sacramento matrimonii, in 1563, recognized the indissolubility of the marriage tie. The facility of divorces in Protestant Germany, is deemed by a late well-informed traveller, (Russel's Tour in Germany,) to be no less injurious than the absolute indissolubility of that relation in Catholic countries. In 1817, 3000 marriages were dissolved in Prussia? The Prussian code of 1794, prepared and published under Frederick Wm. III., gave great and dangerous facility to divorce, by allowing it for many causes fatal to the stability and sanctity of the contract. In Austria divorces between Protestants may be had, not only for several substantial causes, but at the request of both parties, on the ground of unconquerable aversion. Turnbull's Austria, vol. ii. p. 509. |