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torney, in order to give instructions to stay proceedings. Mr. Keats, in taking leave of his wife, said," I hope, my dear, we shall understand one another better, but we must not revert to the past.” She asked him to go and see her at St. Leonard's, but he replied that “ as the matter was on the eve of being settled he would not go till afterwards." Mr. Keats did not keep his appointment, and the case proceeded to trial. Upon this evidence the Judge-Ordinary told the jury that the petitioner was entitled to their verdict upon the issue of condonation, unless they believed that he intended to "blot out the offence imputed, so as to restore the offending party to the position which she had occupied before the offence was committed." The jury found that the respondent had committed adultery, and that the petitioner had not condoned it, and they awarded £1,000 damages against the co-respondent. On the first day of the following Term a rule nisi for a new trial was ordered, on the grounds that the learned Judge's definition of condonation was incorrect, and that even if it were correct the jury were wrong in finding that there had been no condonation.
On the one side as cause against the rule, passages from Cicero and from Cæsar were read by the learned counsel to show that in the Roman law, condonation meant not only a pardon and the remission of a penalty, but also a restoration to the favour of the person condoning; and Sanchez was cited as an authority for the proposition that verbal condonation, not followed by any act, might at any time be revoked by the person condoning. It was further urged that there could be no condonation without a continuation or a resumption of conjugal intercourse. On the other side, however, it was denied that cohabitation was necessary to condonation, and submitted that the reason why there was no precedent of a verbal condonation, was that it had never yet been suggested that an express condonation by words or by writing was inoperative. There was no authority for the proposition that condonation implied a restoration of the offending party to the position which he or she occupied before the otfence was com
mitted ; or that by the law of England, condonation could not be inferred from language as well as from conduct. It had been distinctly laid down in the United States and in Scotland that it might be expressed by words and by writing. And it was further contended that the conduct of Mr. Keats, and the expressions in his letters, coupled with the words used by him at the interview with his wife on the 27th of November, clearly indicated an intention to restore her to the position she had occupied before the adultery was committed ; and, therefore, the jury were not justi, fied, even assuming the learned Judge's definition of condonation to be correct, in coming to the conclusion that the adultery had not been condoned. The Lord Chancellor said the question of condonation was one of very great and general importance, and the Court had now to decide whether the definition of it given by the learned Judge-Ordinary was to be adopted as the prin. ciple upon which all similar cases were to be decided, It was admitted that nothing was to be found in the reports of the ecclesiastical courts in explanation of the term condonation, because, as was clearly pointed out by the Judge-Ordinary, the Judges of the Ecclesiastical Courts were Judges both of the law and of the fact, and when the question of condonation was raised before them the law was never argued, as it was supposed to be well known to them. The word, like many others, having become familiar by daily use, was believed to be thoroughly understood until the necessity arose for defining it. Every one who heard the clear definition given by the Judge-Ordinary must know that when he used the words “blotting out,” he could not be understood as speaking literally, because the offence, once having been committed, could not actually be blotted out, but that he used the words in the sense that the offence should be no more remembered against the offending party. There was the highest sanction for that form of expression :-", even I, am he that blot teth out thy transgressions for mine own sake, and will not remember thy sins," the meaning being, I will sq act towards you as if the transgression had not taken
place, and the sin shall no more be imputed to you. But the second part of the learned Judge's proposition explained and restricted the first part by adding that it must be such a blotting out as restored the wife to her former position. That was contended to be incorrect, because it excluded condonation by words only. On the other hand, it was asserted that no condonation by words was sufficient unless followed by intercourse. It was, in his opinion, unnecessary to resort to the Roman classics or to Sanchez for the meaning of condonation, for words frequently departed widely in the course of time from their original meaning. In the course of the argument it was submitted that even if a husband were to say, with a knowledge of his wife's adultery, “I forgive you, but I will never see you again," that forgiveness amounted to verbal condonation. Surely, if that proposition were admitted, every species of artifice would be resorted to by the wife and her friends in cases of this kind to extract from the injured party the words which were to have such a powerful effect; and the sudden impulse of affection, the importunity of friends, or surprise, or weakness, might cause him to let fall a hasty expression of forgiveness, which, when once uttered, would be irrevocable. How naturally, too, would compassion for a guilty creature, with whom was associated the remembrance of former days of happiness, find vent in such an expression. Although the husband might know that the separation must be perpetual, he might feel anxious to lighten the load of his wife's guilty despair by words of forgiveness. Following out the idea of Lord Stowell, that condonation was a good plea in bar, as it was not fit that a man should sue for a debt which he had released, the counsel for the wife argued that the husband, by forgiving the offence, might give up his right to sue for a divorce by reason of that offence, although he did not intend to restore her to her former position. But carrying an illustration too far, gave rise to great fallacies. The position of a wife who had committed adultery was rather analogous to that of a person who had incurred a penalty than to that of one
who owed a debt; she had exposed herself to the penalty of having the marriage tie dissolved, and had lost her right to insist on cohabitation. True, forgiveness was an act of the mind, but it could only be manifested by words and by outward acts. It might be proved by strong and unquestionable acts, but words, however strong, could only be regarded as imperfect forgiveness ; and, unless followed up by reconciliation and the reinstatement of the wife in the position she occupied before she transgressed, must be incomplete. It had been argued that condonation could only be established by proof of actual intercourse, but that might in some cases be a wholly inadequate test. In his opinion, however, there could be no condonation which was not accompanied by conjugal cohabitation. Dr. Lushington in “ Campbell v. Campbell” (1 Deane, 288), took this view, for he said, “Condonation is connubial intercourse with full knowledge of all the facts." By taking this view the nature of the cohabitation, which was to establish condonation, was left to be adapted to the varying conditions and circumstances of different parties. The language of the Judge. Ordinary as to the restoration of the wife to her original position did not mean that cohabitation was to be renewed with all the circumstances that had surrounded her former life. She might live with her husband again as a wife, but she must live as a degraded wife. The degree or extent to which former privileges were to be restored did not enter into the question. He agreed with the JudgeOrdinary that the forgiveness which was to take away the husband's right to a divorce must not fall short of reconciliation, and must therefore be shown by a reinstatement of the wife in her former position, which rendered necessary proof of conjugal cohabitation, or restitution of conjugal rights. With regard to the second point on which the rule had been obtained, he thought that the evidence fully justified the verdict pronounced by the jury._The other learned Judges concurred, and the rule for a new trial was discharged.
But we have stated, that even after condonation the offence may again be revived. In reference to this
subject, it is to be regretted that the law is somewhat unsettled, and undefined. No doubt, each offence for which the statute provides a remedy can, after condonation, be revived by a new offence of a similar nature. Fresh acts of cruelty will revive former acts of cruelty; but the question is, will (for instance) present acts of cruelty revive a former act of adultery; or, will nothing short of what will substantively and separately establish a new case of adultery, set aside condonation of adultery as a bar? When this question comes to receive judicial consideration, there is no doubt the Court will decide that the new injury need not necessarily be of the same nature or magnitude as the offence it revives. Forgiveness is an act of generosity; it is meritorious, and ought to be rewarded rather than punished. The party who has forgiven once can forgive again, if forgiveness be merited. Condonation should be construed liberally in favour of the injured, and should be held to carry with it an implied condition respecting the future general conduct of the offender. In return for forgiveness, something more is expected than the mere refraining from a repetition of the particular injury condoned. The forgiveness of one offence should not be allowed to be an inducement for the committal of another. If a woman condone acts of cruelty to-day, why should the husband be in a better position to commit adultery to-morrow? Justice requires that, under such circumstances, the wife should at once be put in her original position, by the removal of the effect of the condonation, otherwise she alone would be the sufferer; while the husband would be rewarded by freedom from the consequences which would have followed his offences. We may assume therefore that fresh acts of cruelty would revive former acts of adultery, as well as of cruelty.
When condonation is duly proved to exist, the Court will “ dismiss” the petition.
The preceding four bars are peremptory, rendering it obligatory on the Court to dismiss the petition ; while the seven following are discretionary, leaving it with the Court to grant the relief or not, as it sees fit,