« EelmineJätka »
instance could they find a clear and unequivocal admission of adultery having taken place. The strongest passage was that in which the respondent stated, that after one of these interviews Dr. Lane desired her to take care to "obviate consequences ;” but even there the "consequences” referred to might have been those of discovery or detection, and not those resulting from an adulterous connexion. It was true that where they were dealing with admissions by a wife of criminal and indecent familiarities, bordering upon and, morally speaking, partaking of adultery, the disposition of the Court would, for obvious reasons, be to give the fullest effect to the language of those admissions. But in this case there were considerations which led the Court to think that the language of Mrs. Robinson in her diary must be construed by a different rule. The Court was dealing with one whom an ardent imagination and a passionate nature too often led away beyond the bounds of reason and truth, and who, in all relating to her intercourse with men for whom she had conceived a partiality, was prone to exaggerate and over-colour every circumstance which tended to her gratification. In the present instance this tendency would be more strongly brought into play by the strength and ardour of her passion for Dr. Lane. It was plain that she dwelt with impure gratification on the portraiture of these scenes, and on the details of the guilty endearments and caresses which she narrated. It was impossible to say how much of all this might not be the work of an imagination corrupted by sensuality and dwelling with morbid satisfaction on its own impure creations, or how far any groundwork of fact might be distorted or overcharged by the fanciful additions of the writer. The Court was, at all events, of opinion that all that came from such a quarter on such a subject, far from being taken as a ground for drawing further inferences of criminality, must be received with very great allowance and distrust. Having no other evidence than the statements of a writer in whose judgment and fidelity to truth in the particular matter the Court could place no reliance, and whom it believed capable of distorting and discolouring facts to gratify her disordered fancy and morbid passion, it would have had great doubt whether, if the admissions had amounted to a clear acknowledgment of adultery, it could have given effect to them ; but, looking to the ambiguous character of the expressions, coupled with the reiterated complaints of the writer of the absence of equal ardour on the part of Dr. Lane, it could not, under all the circumstances of the case, come to the conclusion that there was any admission of adultery upon which it would be justified in acting. It was true that from evidence of acts of guilty familiarity the Court or a jury would have no hesitation in inferring actual adultery, but they were here dealing with confessions made by a party who seemed to have every disposition to overstate rather than to suppress, and who in these admissions must be taken to have gone to the utmost limits of reality. To statements so made it was not open to the Court to add anything by way of inference. It was unnecessary to determine whether the whole of Mrs. Robinson's revelations were imaginary, or how much was to be set down as fiction, and how much as fact; it was enough that on the whole the Court came to the conclusion that it had no evidence of adultery before it on which it would be justified in pronouncing a sentence of divorce. It regretted the position of Mr. Robinson, who remained burdened with a wife who had placed on record the confession of her misconduct, or, at all events, even taking the most favourable view, of unfaithful thoughts and unchaste desires ; but redress could only be afforded by that Court on legal proof of adultery, and that proof the Court could not find in the incoherent statements of a narrative so irrational and untrustworthy as that of the respondent Entertaining this opinion of the evidence derived from the journal, the only course open to the Court was to dismiss the petition.
In reference to the suspicions of the Court, the statute does not merely permit the respondent to set up against the petitioner the many defences referred
to, but imposes upon the Court the duty of satisfying itself as far as possible that the petitioner is and has been bona fide in his or her proceedings. For that purpose they may order the petitioner to attend to be examined upon oath at the hearing of the petition. No petitioner, however, will be obliged to answer ony question tending to show that he or she has been guilty of adultery. It would be preposterous and contrary to all human feeling to bind a party to do so.
I Sec. 29.
DECREE DISSOLVING MARRIAGE-ITS EFFECT.
RE-MARRIAGE-CUSTODY OF CHILDREN_PROPERTY AND
1. Decree of divorce—when pronounced.
9. Jurisdiction given to the Judges of New Court. 10. Effects of decree as to property. 11. Legal difficulties will arise. 12. Childrens' rights not affected. 13. Court may order re-settlement of wife's separate property. 14. Damages obtained from adulterer may be settled. 15. Provision to be made for wife. 16. Provision to be made for children.
1. When the Court shall be satisfied on the evidence that the case of the petitioner has been proved, and that nothing has appeared sufficient to disentitle such petitioner to the relief,' a decree will be pronounced declaring the marriage to be dissolved.
2. The first effect of the decree is that the parties are made perfectly free of each other. And when the
divorce has become irreversible, they may marry again as if the prior marriage had been dissolved by death.
3. Either party dissatisfied with the decision of the Court, may, within three months after the pronouncing thereof, appeal therefrom to the House of Lords, if Parliament be then sitting; or, if Parliament be not sitting at the end of such three months, then within fourteen days next after its next meeting. And the divorce does not become irreversible until the time so limited for appealing has expired without an appeal having been presented; or until any such appeal, if presented, shall have been dismissed; or until, in the result of the appeal, the marriage shall have been declared void.3
4. Then not only may the parties enter into fresh nuptials immediately, but the wife will probably resume her maiden, or other former name. If there are children committed to her care it may not, however, be prudent for her to do so.
The liberty of marriage extends to the guilty as well as the innocent party, and even to the union of that guilty party with her or her paramour.4
6. If there are children of the marriage, a question of the very highest interest and importance arises, who shall have the custody of them.
7. The father no doubt has the right; and the mother in asking to be left her children, only comes seeking a favor. This principal will likely rule nearly all the cases in which the divorce will be obtained by the
i Sec. 59. 2 Sec. 56. 3 Sec. 57.
4 Here, in reference to these unions, the terms of the statute came into conflict with the conscientious opinions of a large body of the clergymen of the Church, who consider it sinful to re-marry divorced persons. In order to satisfy their scruples, it is provided that no clergyman, in holy orders, of the United Church of England and Ireland shall be compelled to solemnize the marriage of any person whose former marriage may have been dissolved on the ground of his or her adultery, or shall be liable to any suit, penalty, or censure for solemnizing, or refusing to solemnize, the marriage of such person. (Sec. 57.) But when any minister shall refuse to perform such marriage ceremony, he shall permit any other minister entitled to officiate within the diocese to do so. (Sec. 58.)