elements of adultery and bigamy, but in what order they occur is immaterial. Suppose adultery committed by a husband with a single woman; then suppose bigamy with her; and suppose further, that as she is coming out of church after the ceremony she learns for the first time that her seducer is a married man; she renounces him immediately, and never sees him again. The case now put would, I apprehend, be a clear case for divorce under the Act. 12. What occurred in Mrs. Battersby's case (Macq., H. of L., 479, 667)? There the bigamy took place with a woman altogether distinct from the several women with whom adultery had been committed by the delinquent Battersby ten or eleven years before. The outrage was held, and justly held, to have been completed at the altar, although, to strengthen the case, subsequent intercourse was proved with the second wife. The trial, the conviction, the transportation, and the general infamy of the husband, were the things gone upon. Lord Cottenham moved the second reading, and the bill passed. 13. In Mrs. Hall's case, session 1850, where the like relief was given, there was bigamy, but no conviction, and, of course, no punishment, and less degradation; yet the bill passed. 14. At the end of section 27 there is the following rather dark proviso, "and bigamy shall be taken to mean mar"riage of any person being married to any other person "during the life of the former husband or wife, whether the "second marriage shall have taken place within the dominions "of Her Majesty or elsewhere." The second or bigamous marriage in Mrs. Hall's case was at Brussels. 15. The returns made to the Home Office show that the crime of bigamy has of late been increasing. In 1854, the number of persons committed or bailed for it in England was eighty-three; in 1855, eighty-six. It may now be expected to decline, because when divorce is attainable the temptation to commit bigamy will more rarely arise. Thus, in Scotland, where divorce is allowed, it appears from the returns that there were only two cases of bigamy for the year 1854. The population of England is six times as great as that of Scotland; multiplying, therefore, the two Scotch cases by six, we shall have twelve cases of bigamy, instead of eighty-six, annually in England. Here is something in the way of moral improvement. 16. The Act allows divorce to a wife when her husband has, since the marriage, been guilty of rape; Sect. 27. 17. The returns show 128 cases of rape for 1854, and the same number for 1855. 18. The Act allows divorce to a wife when her husband has, since the marriage, been guilty of any of the unnatural offences in the Act mentioned, sect. 27. The number of these cases occurring annually is the subject of returns which may be cited by the curious. 19. The Act allows divorce to a wife when her husband has, since the marriage, been guilty of adultery, accompanied, or as the Act expresses it, "coupled" with cruelty; Sect. 27. 20. In general, where cruelty appears, adultery is not wanting. The returns of the French minister of justice show, that in 1854 no less than fourteen hundred and ten cases of illtreatment came before the courts of France.* Yet the most vigilant of all authorities informs us, that "there is more "brutal usage on the part of English than of French hus"bands."-(Times, 6th March 1857.) It does not, however, follow that wives, even in the worst cases of adultery, "coupled with cruelty," will always demand divorce. A mother, especially when no longer young, will often be restrained by a consideration for her children from insisting that the marriage shall be dissolved. On the other hand, a sentence of mere separation is but an imperfect remedy, liable to be put an end to by reconciliation; such reconciliation being sometimes fraudulently effected by a wheedling delinquent spouse. Friends and relations will therefore interpose, and though the wife might herself be satisfied with a "separation de corps," they will occasionally urge a more effectual and permanent redress. If these views are correct, a good many marriages will be dissolved by the new court at the suit of wives complaining of their husbands' adultery, "coupled with cruelty." The cruelty is to be such as would entitle the wife to divorce " à mensâ et thoro." 21. In 1848 a case, that of Mrs. Dawson, came before the House of Lords, where the husband, an adulterer, flogged his * Infra, p. 137. wife, sometimes with a horse-whip and sometimes with a hairbrush. She asked a divorce; which, however, the Lords, from a regard to the morals of the country, deemed themselves obliged to refuse, in consequence, we believe, in a great degree, of a certain unguardedness, if not levity, which transpired in the conduct of the wife, unfavorably to her claim. Her case was before the House on six different occasions. 22. Some authorities on cruelty are collected infra, see p. 108. 23. The Act allows divorce to a wife when her husband has, since the marriage, been guilty of adultery, accompanied, or, as the Act expresses it, "coupled" with desertion. The desertion must be for two years. In many cases (those often of the greatest hardship) it will be impossible for a deserted wife to prove the fact of adultery. It would appear that the foreign jurists look at other circumstances, without always measuring the duration of the disappearance. And this shows their good sense; for a married man who elopes (say, with a female companion, to America) leaving his wife and children destitute, may be taken at once to have finally turned his back upon them; and, in such a case of adultery and desertion combined, we need not wait two years, or two months, to ascertain the culpable intent. The court ought to have some discretion in dealing with such cases. 24. In a bill prepared and printed for the Commissioners it was provided, that divorce should be granted to the wife where the husband had not only committed adultery, but had deserted her, and refused, though judicially required, to renew cohabitation. This judicial requisition seems a proper precaution; the Scotch experience shows this. 25. Some authorities on desertion are collected infra, see p. 110. 1. THE application for divorce must be by petition, “stating as distinctly as the nature of the case permits the facts on "which the claim is founded;" Sect. 27. According to the practice of Parliament the petition should describe the parties, and state their respective ages, the date and place of the marriage, the issue, and the cohabitation. Property brought on the marriage, and settlements made, and separations, if any, with the causes occasioning them, ought to be shortly stated. In stating the charge, the petition will require a reasonable specification as to person, time, and place, and fuller than was usual in divorce bills, because the brevity of the parliamentary statement was compensated by the verbose pleadings and evidence in the Ecclesiastical Court, and generally by the record in the civil action. Perhaps as good a model as any for the charge will be that furnished by the Duke of Norfolk's case (Macq., H. of L., p. 565), where the duchess having prayed that she might not be called upon to answer in the dark, the duke, pursuantly to order, brought in a charge prepared by his counsel Sir John Somers. The precedent is illustrious. 2. The statute does not require an answer to the charge, but if such answer be put in, there seems no reason why the court should not receive it. The Duchess of Norfolk's example is in point. The case must be more than ordinarily simple in which the Court itself will not rather desire to have before it something in the shape of a record. Parliament had always one and generally two records in such proceedings; so that the statements, whether written or printed, were never one-sided. The Scotch have their summons and defence, the French their procès-verbal. 3. The husband's petition may proceed on adultery alone; and the alleged adulterer must be made a co-respondent ; Sect. 28. -- 4. For the intervention of the adulterer there is the sanction of the following precedent in the time of Lord Chancellor King: On the 26th February 1729, Pendarves Kekewitch, Esq., presented a petition to the House of Lords stating that James Jenyns, Esq., had brought an action against him for criminal conversation with his wife, and praying that he might be heard by counsel on the second reading of the bill to dissolve the marriage of the said Mr. Jenyns, and that an order might be made for witnesses to attend to be examined on the petitioner's behalf, and that the second reading be put off for a few days. It was ordered accordingly. A few days afterwards, on the 3d March, it was "ordered that Pendarves Kekewitch (who "had liberty on his own application to be heard by counsel "against the bill, but did not appear) do attend this House on Tuesday next." Of Mr. Kekewitch nothing further appears. He probably found that his attendance was unnecessary; for the bill, evidently a collusive one, was, without his interference, rejected. The chief object of citing the adulterer is, that he may be mulcted for his delinquency in costs; see Sect. 34. An able periodical, the Solicitors' Journal, of 10th October 1857, speculates well on the consequences which may be expected to arise from the appearance of "a third party thus necessarily and publicly introduced." The court may on special grounds excuse the husband for not making the adulterer a co-respondent; Sect. 28. 6. A wife's petition cannot proceed upon adultery alone. It must, however, aver adultery, and one of the other aggravating offences already specified, see supra pp. 30, 31, 32, 33, 34. 7. It is not incumbent on the wife to make the alleged concubine a co-respondent. |