CASES

DETERMINED IN

THE CONSISTORY COURT

OF

LONDON, &c." Leading case.

Bis L. on 12.4 D. 5.423.2.4.

LOVEDEN v. LOVEDEN.-p. 1.

Principles of evidence in cases of divorce by reason of adultery, &c.

THIS was a case of divorce by reason of adultery of the wife, in which the principles and rules of circumstantial evidence, in such cases, were much discussed to the effect appearing in the Judgment.

JUDGMENT.

Sir WILLIAM SCOTT.

This is a proceeding by Edward Loveden Loveden Esq. against Ann his wife, praying for separation, by reason of adultery. Nothing arises upon the proceedings: they have been conducted, as far as they go, in the usual manner. The articles, which are many in number, plead a marriage to have taken place on the 15th of November 1794. This marriage is admitted, and is likewise fully proved by many witnesses. Cohabitation continued between the parties till the 15th of March 1809, when, upon the discovery of an adulterous intercourse, as alleged, with Mr. Raymond Barker, son of a neighbouring gentleman in the country, and who is described as a lay-fellow of Merton College in Oxford, she was ordered to withdraw from her husband's house, and the cohabitation has never been renewed. She has offered no plea of any kind, but rests her defence, so far as it is preferred by her counsel, on the insufficiency of his proofs, and upon the answers to the interrogatories which she has addressed to several of his witnesses. These witnesses are twenty in number, including the person who formally proves the public documents relative to the licence and marriage; and they are stated to be supported by letters written and sent by herself to Mr. Barker, but intercepted by a servant, and communicated to Mr. Loveden by the agency of that servant.

It is not necessary for me to state much at large the rules of evidence/3.4 which this Court holds upon subjects of this nature, or the principles, upon which those rules are constructed:-they are principles so conso-4c5.4 nant to reason and to the exigencies of justices, and so often called for by the cases which occur in these Courts, that it is on all accounts sufficient to advert to them briefly. It is a fundamental rule, that it is not necessary to prove the direct fact of adultery; because, if it were other

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wise, 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 harsh 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. It is the consequence of this rule, that it is not necessary to prove a fact of adultery in time and place. Circumstances need not be so specially proved, as to produce the conclusion that the fact of adultery was committed at that particular hour or in that particular room; general cohabitation has been deemed enough. Parties living for months and for years together, and hoping by that means to insult the feelings of a husband, and to elude the justice of the tribunals which have to decide upon such matters, have by such contrivances supposed that they were sufficiently protected; but the courts of justice have held that that is an evasion which was perfectly insufficient for such a purpose, and the parties have been concluded by general cohabitation. This has been laid down repeatedly, and acted upon in this Court, in cases such as Cadogan v. Cadogan, (a) Rutton v. Rutton: and other cases have been con

(a) In the case of Lord Cadogan v. Lady Cadogan,-The Court, after a full and particular examination of the effect of the evidence on the libel, and the responsive allegation, observed-My opinion is so completely founded on the view of these facts, that it might not be necessary to go further: the sequel, however, calls for some observations from the Court. Lord Cadogan pleads "that the parties retired together into Wales, where they lived in domestic intimacy." In the responsive allegation it is pleaded that they did not go by agreement; but that they met there accidentally," though it admits that they continued in that part of the country together. The improbability of this story is so strong, that even Ball, the servant maid, revolts at it, and takes it for granted, that Mr. Cooper went there, in consequence of knowing that Lady Cadogan was living at that place. Something has been said in defence of such a measure, as natural to persons in their situation; that, being outcasts of society, they might shut out the world, and all scandal together. Lady Cadogan, in this suit, stands highly on her honour, and desires her friends and the public to suspend their judgment till the cause shall be de

It is to be regretted that no sufficient notes have been preserved of this long and elaborate judgment, as it is recollected to have been.

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firmed by the Court of Delegates, and is the established principle of this Court. Such are the general rules and such the general principles established here; and it is with reference to those general rules the present case must be examined. It is possible that the case may not require the application of the more extended rules, because it is possible that there may be such direct proof of the fact of adultery as not to stand in need of such an application.

Of the manner in which these parties lived together before about the year 1803, I think there is no evidence adduced which shows the state of the parties one way or other; excepting that it appears, indeed, that down to the very time of this alleged discovery nothing had arisen which had awakened suspicions in the mind of the husband. It is, I think, spoken to by Calcutt, who had been housekeeper in the family for some time, that in the year 1803 a connexion which had subsisted between the family of Mr. Loveden and the family of a neighbouring gentleman, Mr. Barker, who lived at Fairford in Gloucestershire, had produced something that attracted the attention of this witness in particular. Mr. Barker's family had lived upon a footing of great intimacy and friendship with the family of Mr. Loveden, which appears, in the later periods of it, to have been disturbed and interrupted in consequence

cided; and the Court is not to suppose that she was so deserted, as to be under the necessity of finding an asylum only in the society of the very person, who was the cause of the imputation which had been cast upon her. They do in fact however retire, and pursue their journey together to several places, in all of which the Court is desired to believe, that all which passed was innocent, because nothing had been exposed, contrary to common decency, to the waiters and servants of the places where they have resided. It is true that Mr. Cooper sleeps at the inn: but is, in all other respects, domesticated in Lady Cadogan's house. He is there in the morning, and 'till night; his clothes are at the house, his horse also-he takes his meals there-every thing is there-he himself is constantly there, except for a few hours of the night. It is then from these few hours, and from the evidence of witnesses selected by themselves, that the Court is required to suppose, that all this intercourse was perfectly innocent. Abstracted from all the former facts, this might almost be considered as composing a separate and detached case. Here is the wife of another husband, and the husband of another wife, quitting all public and domestic duties in their own stations, retiring together and shutting out all witnesses, except persons chosen by themselves. Can it be necessary that the Court should require any other evidence than this, in the nature of facts of indecent behaviour? Is it for the interest of society that such a principle should be maintained? Mere cohabitation in this way, must, in itself, be held sufficient to found the judgment of the Court conclusively against them. In the case of Rutton v. Rutton, there was a defence of the same kind: and though the gentleman slept in the house, it was proved that he had a separate room, and the witnesses, to that part of the case, declared that they had never observed any indecent familiarities between them. But in the Court of Delegates it was strongly held "that general cohabitation excluded the necessity of proof of particular facts." It may be possible that persons, of peculiar and eccentric dispositions 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 these circumstances. They cannot adopt the extravagant professions of Platonism for the principles of their decisions. Such would be the decision of the Court on this point alone; but the Court is not at liberty to put out of its recollection all the antecedent facts ofthe case, on which it has before observed. Looking to them and to the main fact-the admission of a gentleman to her bedchamber at night, under the frivolous plea of illness, that has been set up, and to all the other particulars, which have been established in evidence, I feel myself compelled to pronounce, that the case is fully proved, and that Lord Cadogan is entitled to the relief which he prays.

* Arches, 26th January 1796. Deleg. 14th Nov. 1796.

of the transactions between this gentleman, who was a son of that family, and Mrs. Loveden;-for though it never did reach the eyes nor the ears of Mr. Loveden himself, it is alluded to in a conversation which passed between Mr. Barker and the butler, Hastings, who is a capital agent in these transactions;-it is alluded to that it had been known, and with feelings of great uneasiness, at his family house at Fairford: and that it was calculated to produce uneasiness there, cannot be denied; because he had been received with great hospitality in this house, with great familiarity: and it is most fully admitted by the counsel on the part of Mrs. Loveden, that that which had occurred certainly was not that which such treatment ought to have produced. It is admitted by them, and could not be denied, without flying in the face of that mass of evidence which now lies before me, that a most improper attachment had taken place between these parties, and that acts`extremely indelicate had passed between them; for they raise the question no higher than this, Was this attachment accompanied by adultery? Were these acts, indelicate as we must admit them to be, attended with the crime of adultery?

These admissions, which as I say could not be avoided without encountering the whole of the affirmative evidence which is here produced, will relieve me from the necessity of entering very minutely into the particular circumstances vouched by a great variety of witnesses. They certainly do prove a state of intimacy between these parties suspicious in the highest degree. The parties were observed to be fond of walking together separately from the rest of the family, arm-in-arm together;-that she paid particular attention to his accommodation when he came to the house, was peculiarly attentive to the preparations of his room,-to the ornaments of his room,-even occasionally assisting to make up the fire in his room;-that she addressed herself with particular attention to him at dinner and meals;-that he came evidently by appointment, and when the husband was absent from Buscot, the place of his residence, or particularly engaged; that this attracted the notice of these witnesses, and convinced them that his visits must have been by appointment; because no sooner was the back of Mr. Loveden turned, than this gentleman appeared:-that while he was there, and the husband was absent, she was ordered to be denied to all other persons who came there, and was actually so denied;-that if Mr. Loveden's return was announced by the ringing of the house bell, they separated immediately, and met again in Mr. Loveden's presence as if for the first time, as if they had not been in company and held any conversation before;-that they were fond, when walking in company, of separating from the rest of the company, walking together separately, and in the attitudes described;-that they were often seen retiring into the shrubberies and plantations in the garden;-that he came very frequently on horseback, coming with his horse into these plantations and shrubberies unknown till observed by servants; and never going up to the house, but meeting this lady at these places;-that they have been seen in the gardens with arms round each other's waist;-that they were seen - upon one particular occasion to kiss each other; that upon finding themselves observed, they retired in great confusion; that at table they were in the habit of sitting close together, and, as the butler positively swears to his own observation of the fact, with their legs and feet fixed together under the table;-that in London they met, and evidently upon signals

and by appointment, to ride together in the Park;-that he has been + seen to lay his hand upon her hip, and, upon being observed, to withdraw it in confusion; that at another time he laid his hand in a most fa-+ miliar manner upon her shoulder;-that he was admitted alone into her dressing-room, where other gentlemen were scarcely ever admitted; and that he was so admitted totally unknown to Mr. Loveden;—that when parties went out coursing or hunting, these two persons always came home an hour before the rest of the company, and remained alone together:-in short, that a degree of familiar intercourse took place which attracted the notice of every servant and of every visitor in the house.

These are facts spoken to by such a number of witnesses, that I must repeat great part of these depositions which have been read, and which have been commented upon much at length, if I were to refer to them: I must state them entirely over again if I were to enumerate the particular facts spoken to in the depositions which these several witnesses have given; for all the servants, in various capacities which gave them opportunities of observation, concur in describing the intercourse as suspicious, and as gross in a very high degree.

It has been made matter of objection, among the few objections which it was possible for the ingenuity of advocates to collect upon this occasion, that this lady seems to have been living amongst spies, and that they seem all to have acted with unfavourably conceived impressions. The fact is, that their observations were awakened, and could not be otherwise than awakened, by the appearances which were presented to their view. Such scenes as these going on in a decent and respectable family, and some of them passing under the eyes of such a number of persons, could not but excite observation, could not but provoke conversation among them. If the evidence had been otherwise, I think it would have furnished a just ground of imputation; for such circumstances, as are described by the witnesses, could not pass without producing such consequences and conversation among them: they must provoke the indignation of the servants; they must have alarmed their vigilance, and have engaged them in what we find them to be engaged in,—the common purpose of defeating and detecting an intercourse so disgraceful to the house and so injurious to their master. The only wonder in the case, I think, is, that such an intercourse could have been possible for such a length of time, without in some way or other, by some accident, by some information, reaching the notice of Mr. Loveden. It had certainly attracted the notice of his visitors;-so says Mr. Seymour, who was a visitor in the house, and who states that he had himself observed so much, and had heard so much from other persons who had seen the same, that he found himself compelled by the duties of friendship to expostulate with her upon the intercourse, which he did not at that time suspect to be criminal, but which was at least suspicious, between her and Mr. Barker. She took it ill, and declared 4. that so long as Mr. Barker behaved well to her she should not alter her behaviour to him;-a pretty strong proof of a blind attachment to this gentleman; because a woman of delicacy who had been informed by a friend that her character was suffering, in the opinion of respectable persons, on account of the footing on which she was with another gentleman, would at least, for the protection of her good name if not of her