The only

portant bearings in decisions upon the particular case. 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 subtleties, and remote and artificial reasonings upon such subjects. Upon such subjects the rational and the legal interpretation must be the same."1 (a)

§ 41. Same subject. 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." And therefore it has been held, that

1 Loveden v. Loveden, 2 Hagg. Con. 2, 3. The husband's remedy against the seducer of his wife may be in trespass, or by an action on the case. 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. 299; Dunham v. Dunham, 6 Law Reporter, 141.

(a) In proving adultery by circumstances, two facts must be established, a criminal disposition or desire in the mind of both the defendant and the particeps criminis, and an opportunity to commit the crime. When both these are shown, guilt is necessarily inferred. 2 Bishop, Marr. & Div. § 619; Black v. Black, 30 N. J. Eq. 228. Proof that parties have

carried on a clandestine correspondence, have made strong expressions of attachment, and had secret interviews, will furnish very strong evidence of criminal inclination and desire. 2 Bishop, Marr. & Div. § 616, quoting the language of Shaw, C. J., in Dunham v. Dunham, 6 Law Rep. 139, p. 141.

general cohabitation excluded the necessity of proof of particular facts. (a) 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 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.? 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.1 But the adulterous disposition of the parties being once established, the crime may be inferred from their afterwards being discovered together in a bedchamber, under circumstances authorizing such inference.5

§ 42. Opinion. Belief. 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.R On the other hand, in the ecclesiastical courts, it is re

1 Cadogan v. Cadogan, 2 Hagg. Con. 4, n.; Rutton v. Rutton, Id. 6, n.

2 Burgess v. Burgess, 2 Hagg. Con. 226, 227; Hammerton v. Hammerton, 2 Hagg. Eccl. 14; Rix v. Rix, 3 Hagg. Eccl. 74; Com. v. Pitsinger, 110 Mass. 101. 8 Durant v. Durant, 1 Hagg. Eccl. 748.

4 Such seems to have been the view of Lord Stowell in Loveden v. Loveden, 2 Hagg. Con. 7, 8, 9, 16, 17; and in Burgess v. Burgess, Id. 227, 228.

5 Soilleaux v. Soilleaux, 1 Hagg. Con. 373; Van Epps v. Van Epps, 6 Barb. S. C. 320. 6 Crewe v. Crewe, 3 Hagg. Eccl. 128.

(a) The cohabitation which excludes the necessity of proof of particular facts is cohabitation as man and wife. Pollock v. Pollock, 71 N. Y. 137. In Hart v. Hart, 2 Edw. Ch. (N. Y.) 207, it was proved that the husband was living separate from his wife, and had a woman residing with him. No other cohabitation, i.e. no cohabitation in the technical meaning of living together as man and wife, was

shown. Vice Chancellor Edwards said he would not grant a decree in such a case upon conjectures, and that he must have stronger proof before he made a decree. This case was questioned by Mr. Bishop in the fourth edition of his work on Marriage & Divorce, § 646, but the unfavorable comment was suppressed in the fifth edition, § 628. See sixth edition, § 628.

luctantly 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 is known to have been adopted, even in cases of an ecclesiastical nature.2

§ 43. Presumption of continued criminal intercourse, when. 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.3 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.4

§ 44. Facts tending to prove adultery. 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; 5 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. 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. (a) His going there and remaining alone for some time in a room with a common prostitute, is sufficient proof of the crime.9 (6) The circumstance of a woman going to such a place with a man, furnishes similar

1 Evans v. Evans, 1 Rob. Eccl. 165; Simmons v. Simmons, 11 Jur. 830.

7 D'Aguilar v. D'Aguilar, 1 Hagg. Eccl. 777, n.

8 Astley v. Astley, 1 Hagg. Eccl. 720; Loveden v. Loveden, 2 Hagg. Con. 24;

Kenrick v. Kenrick, 4 Hagg. Eccl. 114, 124, 132. 9 Astley v. Astley, 1 Hagg. Eccl. 719.

(a) Obviously, however, such a visit is open to explanation, as it may be one of philanthropy, or of accident, or even of fawful business which should not be construed into an act of guilt. 2 Bishop, Marr. & Div. § 626. So held in Latham v. Latham, 30 Gratt. (Va.) 307. The consorting with prostitutes by a married

man raises the presumption of adultery, unless explained and rebutted by the character of the man; and when character is relied upon as a defence, and fails in that respect, the presumption is increased. Ciocci v. Ciocci, 26 Eng. Law & Eq. 604.

(¿) Daily v. Daily, 64 Ill. 329.

proof of adultery.

The venereal disease, long after marriage, is

prima facie evidence of this crime.2 (a)

§ 45. Confession. 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.3 (b) Where the consequences of the confession are altogether against the party confessing, there is no difficulty in taking it as indubitable truth. (c) 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. (d) 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 mensa 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. It is never admitted alone for this purpose; 6

1 Eliot v. Eliot, cited 1 Hagg. Con. 302; Williams v. Williams, Id. 303.

2 Durant v. Durant, 1 Hagg. Ecc. 767.

3 Ante, vol. i. §§ 214-219; Mortimer v. Mortimer, 2 Hagg. Con. 315. Williams v. Williams, 1 Hagg. Con. 304.

5 Mortimer v. Mortimer, 2 Hagg. Con. 316.

6 Searle v. Price, 2 Hagg. Con. 189; Mortimer v. Mortimer, Id. 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. 261.

(a) 2 Bishop, Marr. and Div. § 632 et seq. (b) 2 Bishop, Marr. and Div. c. 16; Williams v. Williams, 35 L. J. Mat. Cas. 8.

(c) Thus, where a man indicted for adultery said that he had left a wife in England, and had a wife and child at the time of the indictment, in Massachusetts, this was held sufficient evidence that he had adulterous sexual intercourse with the woman in Massachusetts. Com. v. Holt,

121 Mass. 61.

On an indictment for adultery, the crime may be proved by the direct confession of the defendant, corroborated by evidence of an opportunity to commit it, and

of his subsequent acts making it probable that he did commit it. Com. v. Tarr, 4 Allen (Mass.), 315.

(d) So it has been held that confessions, by letter or otherwise, ought to be corrob orated by circumstances tending to show guilt, as that the wife is living apart from the husband (Lord Cloncurry's Case, Macq. Pr. in H. of L. 606), or that she was living with a paramour, and meanwhile was grossly deceiving her husband (Miller's Case, Id. 620). See also Doyly's Case, Id. 654; Dundas' Case, Id. 610; Grant v. Grant, 2 Curt. 16; Lord Ellenborough's Case, Macq. Pr. in H. of L. 655.

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.2 And it is admissible, when made under apprehension of death, though it be afterwards retracted. Where, in cross-libels for divorce a vinculo for adultery, each respondent pleaded in recrimination of the other, it has been held, that these pleas could not be received as mutual admissions of the facts articulated in the libels. But the record of the conviction of the respondent, upon a previous indictment for that offence, has been held sufficient proof of the libel, both as to the marriage and the fact of adultery.5

§ 46. Paramour's testimony and confessions. The paramour is an admissible witness; but, being particeps criminis, his evidence is but weak. (a) His confession may be used in evidence against her, if connected with some act of confession of her own, in the nature of a joint acknowledgment; but independently and alone, it is inadmissible.7 (b)

1 Williams v. Williams, 1 Hagg. Con. 304. 2 Burgess v. Burgess, 2 Hagg. Con. 227.

8 Mortimer v. Mortimer, 2 Hagg. Con. 317, 318.

4 Turner v. Turner, 3 Greenl. 398.

5 Anderson v. Anderson, 4 Greenl. 100; Randall v. Randall, Id. 326. The conviction could not have been founded upon the testimony of the party offering it in evidence.

Soilleaux v. Soilleaux, 1 Hagg. Con. 376; Croft v. Croft, 2 Hagg. Eccl. 318. 7 Burgess v. Burgess, 2 Hagg. Con. 235, n.; Derby v. Derby, 31 N. J. Eq. 36.

(a) State v. Colby, 51 Vt. 291. In Turney v. Turney, 4 Edw. Ch. (N. Y.) 566, the court refused to grant a divorce on the unsupported testimony of two prostitutes. So, in Ginger v. Ginger, 34 L. J. Mat. Cases, 9, where the petition was supported only by the testimony of the alleged paramour, a woman of loose character. See Brown v. Brown, 5 Mass. 320.

(b) Another class of evidence commonly used to prove the crime of adultery is that of hired private detectives. The credibility of such a witness, when he testifies to facts which he has observed, while he was in the employment of one of the parties for such observation, must necessarily be very slight, if his evidence stands alone and is not corroborated by other direct testimony or by the circumstances of the case. The practice is well commented on by Sir Cresswell Cresswell, in Sopwith v. Sopwith, 4 Swab. & T. 243, p. 246. "I

feel bound to make one or two observations upon the subject of the employment of men of the class to which Shaw (a private detective) belongs. They may be very useful for some purposes, - they may be instrumental in detecting malpractices which would otherwise remain concealed, but they are most dangerous agents. Police detectives are most useful. They are employed in a government establishment, they are responsible to an official superior, they have no pecuniary interest in the result of their investigations beyond the wages which they receive for the occupation that they follow, and they may be and are constantly employed not only with safety, but with benefit to the public. But when a man sets up as a hired detective of supposed delinquencies, when the amount of his pay depends on the extent of his employment, and the extent of his employment depends on the discoveries he is able to make, then