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- 12. Fifth, Recrimination. Establishing to the satisfaction of the Court, that the petitioner has, during the marriage, been guilty of adultery, constitutes re-crimination. This plea is allowed because of the nature of the injury: being private and the relief private, the latter ought to be granted only where the petitioner comes into court with clean hands. It may be considered doubtful, notwithstanding that the words of the statute are “ during the marriage,” whether, if the subject-matter of the recrimination occurred subsequent to the adultery charged in the petition, the Court would refuse a divorce. The House of Lords rejected such a plea. And it is left perfectly in the discretion of the Court to do likewise. The section provides that " the Court shall not be bound to pronounce a decree of divorce in case it shall find that the petitioner has, during the marriage, been guilty of adultery.”2
13. Sixth, Cruelty. Cruelty may seem to be confined to actual personal violence, but in the law, as shall be observed presently, its meaning is much more extensive; and not only are the acts and expressions, but the ages, rank, and position of the parties, taken into consideration. In respect to age: What takes place between young people, who have had scarcely time io know each other's dispositions, and those whose union has been cemented by common habits and reciprocal toleration, cannot be viewed in the same light. And with regard to rank: A blow of the fist, which in the humbler classes is followed by reprisals and instantly forgotten, will, if administered in a higher station, prove ever fatal to conjugal repose. Personal violence, in any station of life, is cruelty; but to constitute cruelty the law does not require actual injury to the person ; the threat of such injury is sufficient. There may, too, be a systematic persecution without blows, which will amount to cruelty. Suppose a man were continually charging his wife with every sort of immoral conduct, and there was not a shadow of foundation for those charges, made before her family, her
1 Major Campbell's case, Macq. H. of L. 591,
friends, relatives, and servants, and in the face of the world ; there is very little doubt that what now rest only upon opinion, would ultimately assume the form of decision, namely, that such injurious treatment, making the marriage state impossible to be endured, and rendering life itself most un bearable, would be held to be cruelty. In a Scotch case, nearly a century ago, the allegation against the husband was, that he “Disliked and shunned his wife, ceased to cohabit with her, refused to salute her, took away her child from her, and sent her victuals by a common street porter." These facts being proved were held to be sufficient.2 And in another case, where the charge was that the husband threatened “to throw a knife in his wife's face," coupled with another fact, namely, that “he thrust his fist in her mouth, she having a chill in her arms, the Court awarded separation.3 In the case of the Countess of D , it was definitively laid down, that the Court has a guage for the diversities of rank and fortune in estimating cruelty. In that case the strongest thing, in the way of personal violence, charged against Lord D was but a forcible holding of Lady D 's hands, and his saying that he would " thrash her if the law allowed him."
The learned Judge, 4 in delivering judgment, refers to the acquired feelings and tastes incident to high rankthe delicacy of a wife brought up so tenderly-herself of noble birth—her consequent unfitness to sustain such usage ; and withal the husband's great fortune, his squalid establishment-dilapidated house_faded furniture and coarse fare ; even hard salt beef_and the solitary dipt candle are adverted to. And he held that when he saw " the husband has recourse to any sort of treatment short of “thrashing” the Countess, he could not say she could with safety return to him."5 Spitting in the face, being a gross personal insult, is an act of cruelty, and may be aggravated by the constitutional
i Patterson v. Russell, 7 Bell, App. Ca. 337.
delicacy of the wife. The accusation of incest made by a gentleman against his wife, is cruelty of a grievous character.2 And under this head also come “ the communication of an infamous disease ;"3 and debauching female servants.
When cruelty is established by way of defence, “the court shall not be bound" to grant a divorce. But it would appear will not regard such a defence if the wife have, by provocation, brought upon herself the illtreatment complained of.
14. Seventh, Desertion. The Court holds the same discretionary power with regard to desertion. When established by way of defence, “it shall not be bound" to grant a divorce. There are no cases or authorities from which we can furnish a legal definition for desertion. The word implies “forsaking and abandona ing." But it appears it is not necessary that the party deserting should leave the country. The principal ingredient of the offence is the breaking off of the primary object of marriage-nuptial cohabitation. Therefore tbe supposed case of a nan of fortune having a house in London where he maintained his wife with a liberal establishment, an equipage suitable to her rank, and everything furnished at her husband's expense ; but residing himself apart from his wife in a different part of the Metropolis, would amount to desertion.5
15. Eighth, Wilful separation. When wilful separation takes place, the ends for which marriage was instituted are frustrated as in the case of desertion. It is in the sense intended by the statute, a state to which the law gives no countenance. A man's profession or business may oblige him to visit parts of the world, or live under circumstances which would render it impossible to have his wife with him. If such were the real cause of his separation from his wife, it is jusa tifiable; and a woman cannot set it up as a bar. But if the alleged cause of absence should appear to be
merely a colorable pretence; or, that having left home under any circumstances that justified his doing so, yet that he had improperly remained away longer than he might have done, the case would be different; and when established by way of defence, the Court shall not “ be bound" to grant divorce.
16. Ninth, Wilful neglect. The law imposes upon the husband the duty of watching over the society, conduct, and habits of his wife, and holds him answerable for every act and omission of his that may expose her purity to hazard, or render her the more easy prey to the seducer.2 In Colonel Clayton's case, it appeared he had permitted the visits of persons to his house under circumstances which ought to have excited suspicion in a well-regulated mind, and his conduct generally, in being so frequently from home, was said to have been marked by extreme neglect.3 A husband is bound to give his wife some superintendence when she is placed in dangerous situations. If such were not the case, society would suffer, and many an abandoned husband would willingly lead his wife into temptations from which it would be impossible to escape, in order to accomplish his own ends. Where there are imputations of negligence against a husband, he should be prepared with evidence to rebut them. Perhaps the new court will, in many cases, after the example of the House of Lords, require the husband to prove what his conduct has been, and that he had used due care, diligence, and caution.6
The wilful neglect must be " such as has conduced to the adultery." When established by way of defence, " the Court" shall not be bound to grant divorce.
17. Tenth, Misconduct. The term misconduct has reference to such acts of the husband, as, although only
i Sullivan's case, Macg. H. of L. 637-Lord Lismore's case Macq. H. of L. 640--Graham's case, Macg. H. of L. 600.
2 Harris v. Harris, 1 Hagg. R. 415.
affecting himself directly, have an indirect influence upon the wife. Thus, suppose he is an incorrigible drunkard or gambler, who, by bringing destitution upon his wife, drives her to solicit prostitution, and so conduces to the act of which he complains. When cases of a character similar to the one here supposed arise, the Court will, no doubt, exercise its discretion in refusing to grant divorce.
The misconduct must be " such as has conduced to the adultery.” And when established by way of defence, the Court “ shall not be bound" to grant divorce.
18. Eleventh, Unreasonable delay. The question of what lapse of time between the commission of the offence and the proceedings for redress shall be deemed unreasonable delay, is one entirely for the judicial mind of the court. Cases have heretofore been brought forward in the House of Lords, after standing in abeyance for years. It was decided in one case that to the wife's remedy delay was not a bar.2 But subsequently a wife's suit was dismissed because there was “ very great delay in the prosecution."3 A suit instituted after fourteen years' knowledge of adultery, was dismissed.4 'The effect of delay, however, might be got over by showing want of funds.5.
These precedents will probably form an element of consideration for the Judges of the new court, in deciding what delay is, and what delay is not, unreasonable.
Should unreasonable delay exist, and be established by way of defence, “the Court shall not be bound to grant" divorce.6
Having set out and explained in this chapter the ground upon which a husband is entitled to petition for divorce, together with the several bars to his remedy, arranged under eleven different heads, we shall pass to