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of marriage, power to make interim orders for payment of money by way of alimony or otherwise to the wife. And when an affidavit establishing the fact of marriage has been filed, and the husband has appeared in the cause, the wife may proceed for alimony in the manner provided by the rules and orders of the Court.2 Although this is reasonable and necessary where the husband is the delinquent, yet when the case is the other way, it appears rather hard to make it compulsory upon a man to support a woman who has dishonoured hin. However, as the amount of the alimony will be measured with due regard to the conduct of the wives, as well as to the fortune of the husband, it will, at least, afford no premium to them for the commission of crime.
18. Before we come to consider the effects of divorce, it is necessary to say a few words on the proof that will be required to support the principal averment in every petition.-Adultery. The principles of evidence applicable to this subject have been naturally most fully and carefully considered. In the first place, it is perfectly settled, that direct evidence of adultery is not required; as, if it were, relief would be often wholly impossible. In almost every case the fact is to be inferred from circumstances that lead to it, by fair inference, as a necessary conclusion. The circumstances which lead to such a conclusion cannot be laid down universally, because they may be infinitely diversified by the situation and character of the parties, by the general state of manners, and other incidental circumstances apparently slight and delicate in themselves, but which have the most important bearings in deci. sions upon the particular case. The only 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 man to the conclusion that the offence has been committed.3 The Court will look to all the surrounding circumstances together, and form its opinion whether they lead to a fair and natural con
i Sec. 32. 2 Rules and 0. 25, 26, 27 & 28.
clusion that the act of adultery has taken place between the parties. Thus the Court have often inferred this between parties living in the same house, although not seen in the same bed, or in any equivocal situation. But in such cases it must appear to the Court, by reference to the previous conduct of the parties or otherwise, that adultery was probable. Mere opportunity could not be deemed sufficient. But if overt acts or circumstances can be adduced to show that the persons charged with the offence were disposed to take advantage of any opportunity; then when the opportunity is shown to have occurred, Courts have always inferred that the opportunity was not neglected. Where indecent familiarities were proved in conjunction with private interviews, the Court has inferred guilt.2 A wife going into a brothel with another man is clear proof of adultery; for it is hardly to be conceived that a woman would go into such a place but for a criminal purpose. The visit of a married woman to a single man's lodging or house must, however, be distinguished from her going into a brothel; for it may be for the purest and most innocent purpose, and, therefore, cannot by itself induce the slightest inference of guilt. But when the windows were shut at the time of her visit, and it appeared that letters had passed between her and her suspected paramour, which could not be explained on the supposition of innocence, this was held sufficient to justify a sentence of divorce. There may, too, be full proof of the fact of adultery without refer. ence to either the particular person with whom the offence was committed, or to any of the attending circumstances. As where a child was born which was not by possibility the husband's—he not having had access to his wife—the Court held that such proof was all that was essential.4
19. The mere confession of either of the parties has not been heretofore taken in the Ecclesiastical Courts as sufficient evidence of his or her guilt.
i Grant v. Grant, 2 Curt. 2 Bramwell v. Bramwell, 3 Hagg. 3 Williams v. Williams, 1 Hagg. * Richardson v. Richardson, i Hagg.
But in a very recent case of Robinson v. Robinson and Lane, yet unreported, the Court decided that, in this respeet, they would not follow the practicc of the House of Lords. The Chief Justice delivered judgment; and having observed that the only evidence to support the case of the husband, the petitioner, con. sisted of certain alleged admissions of the wife, the respondent, without any corroborative evidence, direct or indirect, to support them. Not but that some evi. dence by way of corroboration was offered, but it was not only inconclusive but so untrustworthy in its character that the Court was under the necessity of discarding it altogether as undeserving of consideration. This being so, as the admissions of the wife could not be used to establish the criminality of the co-respondent, Dr. Lane, the Court felt itself called upon, before the close of the casean Act of Parliament having been passed which removed all doubt as to its authority to do so,- to dismiss the suit as against him, and to confine the question for its decision to whether by the admissions of the respondent, the wife, a case of adultery was made out which entitled the petitioner to the redress he sought. Now, the evidence consisted entirely of admissions made by Mrs. Robinson herself. And here a question presented itself as to how far the admissions of a wife charged with adultery, unsupported by any confirmatory evidence, could be acted upon as conclusive proof on which a divorce could be decreed. If that court had been a court of purely ecclesiastical jurisdiction, the 105th canon would have preclued it from acting on this evidence. But the Divorce Court, not being one of ecclesiastical jurisdiction, nor bound in cases of divorce a vinculo by rules of merely ecclesiastical authority, was at liberty to act, and bound to act, on any evidence legally admissible by which the fact of adultery was established ; and, therefore, if there were evidence not open to exception of admissions of adultery by the principal respondent, it would be the duty of the Court to act on such admissions, although there might
i Before Lord Chief Justice Cockburn, Mr. Justice Wightman, and the Judge-Ordinary, March 2, 1859.
be a total absence of all other evidence to support them. No doubt the admissions of a wife, unsupported by corroborative proof, should be received with the utmost circumspection and caution. Not only was the danger of collusion to be guarded against, but the many other sinister motives which might lead to the making of such admissions, though unsupported, if they could effect their purpose, were sufficient to render it the duty of the Court to proceed with the utmost caution in giving effect to statements of this kind; the more so as it must always be borne in mind that the co-respondent, though not in a legal point of view interested in the result, inasmuch as from the absence of evidence available as against him he was entitled to an acquittal, had yet, socially and morally, the deepest interest in the result. Nevertheless, if, after looking at the evidence with all the distrust and vigilance with which it ought to be regarded, the Court should come to the conclusion, 1st, that the evidence was trustworthy ; 2nd, that it amounted to a clear, distinct, and unequivocal admission of adultery, it would have no hesitation in saying that it ought to act upon such evidence, and afford to the injured party the relief sought for. The admissions of a party charged with a criminal or wrongful act had been at all times, and in all systems of jurisprudence, considered as most cogent and conclusive proof; and if all doubt of its genuineness and sincerity were removed, no reason would exist why such confession should not, as against the party making it, have full effect given to it in cases like the present. With these preliminary observations as to the principles on which the Court should be prepared to deal with such a case, in would proceed to consider the evidence before it. The case of the petitioner, Mr. Robinson, rested upon certain admissions of his wife, which it was contended amounted to a confession of adultery. Those admissions were contained in a diary kept by Mrs. Robinson, and extending over a series of years. The passages relied on by Mr. Robinson occurred in the years 1854 and 1855, but the diary from the beginning of 1849 to
the end of 1855 was produced before the Court, and it had carefully gone over the whole with a view to gain an insight into the mind and character of the writer, as necessary to a due appreciation of the case. Abnndant materials were supplied for this purpose by that remarkable journal. Not only were all the events of the life, social and domestic, of Mrs. Robinson chronicled with minute detail, but her inmost thoughts and feelings, even where one would most have expected secresy, were set forth without hesitation or reserve. They saw be, fore them a woman of more than ordinary intelligence, and of no inconsiderable attainments, but in whom sound sense and judgment were wanting to correct a too vivid imagination and too ardent passions. This was most particularly the case in all that related to her intercourse with the opposite sex. The most commonplace attentions were invested by her flighty imagination with the character of romance and passion, to be followed in more sober moods by complaints of dissappointment and confessions of her own folly in thus dwelling on delusions and dreams. Scenes were recorded with Di. Lane from which the Court was invited by Mr. Robinson to infer that acts of adultery must have taken place. These passages it was unnecessary to set forth; they were of such a character as to render it not desirable unnecessarily to repeat them. The Court would, therefore, content itself with stating further on its opinion as to their effect. Now, in the majority of instances the diary, in describing the private interviews of Mrs. Robinson and Dr. Lane, spoke of acts which, though no doubt of a most guilty character, yet did not amount to actual adultery. In other instances the language was ambiguous. It might be taken to import actual consummation or to refer only to indecent familiarities and caresses, which, however criminal, would not justify it in decreeing a divorce. In one instance language of this sort, which might be construed into a complete confession of adultery, was afterwards used under circumstances in which it was plain that no such meaning could attach to it. In no