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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 effect a divorce.a
If the defendant suffers the bill to be taken pro confesso, or admits the charge, it would be equally 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 is then to decree a dissolution of the marriage; but this dissolution is not to affect the legitimacy of the children; and the defendant, by way of punishment for the guilt, is disabled from re-marrying during the life of the other party.b
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 give reasonable security to abide the decree, by the sequestration of his estate. 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. lf, on the other hand, the husband be the complainant, then he is entitled 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 pos
a Burns' Eccl. Law, tit. Marriage, sect. 11. Traite de l'Adultere, par. Fournel, p. 160. Baxter v. Baxter, 1 Mass. Rep. 346. Betts v. Betts, 1 Johns. Ch. Rep. 197.
b Laws of N. Y. act of 1311 April, 1813, ch. 102.
sessed at the time of the divorce, equally 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.
These are all the statute provisions in this state on the subject of a divorce a vinculo matrimonii ; and it has been decided, that if the marriage was solemnized out of the pstate, it must distinctly and certainly appear upon the bill, that both parties were inhabitants of the state at the time of the commission of the adultery, and this was hekl necessary to give the court jurisdiction. 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.b It has also been adjudged, that though the fact of adultery 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 aggriev. ed, and he may bar himself of the remedy by his own act. 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 all cases of divorce, and the same principle, it is to be presumed, prevails in these United States. So, if the husband subsequently to the adultery, cohabits with his wife, after just grounds of belief in her guilt, it is, in judgment of law, a remission of the offence, and a bar 10 the divorce. This is a general principle every where pervading this branch of jurisprud
a Mix v. Mix, 1 Johns. Ch. Rep. 204.
roughlon's ordo Judicior :r. vol. i. tit. 214. Forster v. Forster, 1 Hugyord. 144. Proctor v. Proctor, 2 Haggard, 292. Chambers v. Chambers, ! Haggard, 439.
It is also well established, 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.b
The policy of this state 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 natious; but the strunger 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, analogous 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 graver Romans permitted the liberty of divorce to a most injurious and shameful degree. Either party might renounce the marriage union at pleasure. It was termed divortium sine causa, or sine ulla querela; and the principle
a Oughton's Ordo, ub. supra. burn's Eccle. Law, tit. Mariage, sec. xi. 1 Ersk. Inst. 113, 114. 6 Mass. Rep. 147. anon.
Williamson v. Williamson, 1 Johns. Ch. Rep. 492.
6 Williamson v. Williamson, wb. supra. 2 Phillimore, 161. Best v. Best. 2 Haggard, 313. Mortimer v. Mortimer.
c Plutarch's Life of Alcibiades. 2 Potter's Greek Antiq. 296, 297. Taylor's Elements of the Civil Law, 352, 353.
is solemnly laid down in the pandects, that bona gratia matrimonium dissolvitur. We find the Roman lawyers, discussing questions of property depending upon these voluntary divorces, or in which Titia divortium a Seio fecit. Movia Titio repudium misit. This facility of separation tended to destroy all mutual confidence, and to inflame every trifing dispute. The abuse of divorce prevailed in 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 subsisted 500 years when the first instance of a divorce occurred. The Emperor Angustus endeavoured by law to put some restraint upon the facility of divorce;d 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 Emperor Justin. 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. f 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.
a Dig. 21. 157. 62. and 64. b Dig. 24. 3. 34. and 38.
c How beautifully Horace recommended the value and continuance of the marriage union, must be familiar to every classical scholar:
Felices ter et amplius,
Lib. 1. car. 13.
In modern Europe, divorces were not allowed in the Roman Catholic countries, because marriage was considered. a sacrament, and held indissoluble during the life of the parties. This was formerly the case in France ;a and it was the general doctrine in the Latin, though not so either in the Greek or Protestant churches. But the French re: yolution, 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 and three months. The code Napoleon regards marriage only as a civil contract, and allows divorces not only for several reasonable causes, such as adultery, and grievous injuries, to be submitted to a judicial tribunal, but also without causes and founded merely upon mutual consent, according to the usage of the ancient Romans. This consent is subjected to several restraints which do in fact create very great and serious checks upon the abuse of the privilege. By the Dutch law there are but two just causes of divorce a vinculo, viz. adultery and malicious desertion ;d and, by the English law, a marriage, valid in its commencement, cannot be dissolved for any cause without an act of parliament.e This was not the case in England anciently;J and until the 44th Eliz. divorces a vinculo were allowed for adultery. But in Foliamb's case, 44 Eliz., it was held, in the Star Chamber, that adultery was only a
a Domat. 651. Traite de L’Adull. par Fournel, 366. 370. Traile du Contrat de Mariage, par Polhier, s. 462. 466. 497. 6 Quarterly Review, No. 56.