Page:The American Cyclopædia (1879) Volume I.djvu/155

ADULTERY 135 parent state, the common law of the United States was to the same effect. But as the power to grant such divorces was vested in England in the ecclesiastical courts, and no such tribunals were ever erected here, the jurisdic- tion over divorces was granted to our common law courts by' special statutes. But these stat- utes did not limit the relief, as in England, to mere separation, but have almost universally made adultery the cause for absolute divorce ; also, here as in Scotland, the law makes no dis- tinction in favor of the husband, but adminis- ters the remedy in favor of either party to the marriage, and for the same grounds. In refer- ence to divorce, it is immaterial whether the paramour of the adulterous husband or wife be married or single. It is essential to the action for divorce that the adultery be voluntary. Thus a woman is not guilty of it in having in- tercourse with a man whom she innocently supposed to be her husband, nor if she commit- ted the act in a state of insanity, or was forced to it by a ravisher. It has been held other- wise in Pennsylvania in regard to insanity, Chief Justice Gibson declaring that insanity so great as to efface from the mind of the wife the first lines of conjugal fidelity will be no de- fence to the husband's action for adultery. But this seems hardly sound, and it is probably not law in any other state. Adultery may be committed by the contraction of a new mar- riage under the belief that the former husband or wife is dead, when that is not the fact ; for unless the period of absence is the full term prescribed by statute for founding the presump- tion of death, the mere belief of it is not deemed innocent. But in such a case, if the new marriage is by law not totally void, but only voidable, the essential adultery is not com- mitted unless the parties continue to cohabit after the passing of a decree against them ; and even when a divorce regular in form has been procured, if it was invalid in fact, either be- cause the party defendant was not within the jurisdiction or power of the court which granted it, or for any other reason, the plaintiff in the divorce suit may be guilty of adultery in con- tracting a new marriage. The bill or com- plaint for divorce on the ground of adultery must in general allege the time and place of the commission of the act, and the name of the person with whom it was committed. The principle which requires these specifications is that the defendant is entitled to be informed with reasonable certainty of the nature of the charge made against him, so that he may have an opportunity to prepare his defence intelli- gently. If, however, the name of the para- mour is not known to the complainant, the allegation on this point may be to the effect that the act was done with some person unknown, and this will suffice if the bill is in other respects specific enough to make the charge definite and certain on the whole. But if the allegation of adultery is based on circumstantial evidence of its commission, as for example on the fact that the defendant is infected with a venereal disease, or that a wife is found pregnant after such an absence of the husband as precludes the presumption of ac- cess on his part, the complaint or libel will bo good if, besides charging adultery generally, it suggests such reasonable circumstances as fairly support the allegation. The charge of adultery is made out by proof of a single act ; but it is not necessary that the court or jury which de- cides upon the case should be furnished with de- monstrative proof that the act was committed, or be absolutely convinced of the very time and place when or where it was committed. From the nature of the act, the evidence of it is and must be in the mass of cases only circumstan- tial. Sometimes the circumstantial evidence is very simple, but of a very convincing charac- ter ; and sometimes the nature of the case re- quires the scrutiny, comparison, and interpre- tation of trains of circumstances which re- garded separately are insufficiently criminating. As an illustration of the former sort of evidence, Lord Stowell's remark may be quoted, that "as people, according to the old saying, do not go to bawdy houses to say their paternosters, it is impossible that one can have gone to such a place for any but improper purposes ; " and to have done so is universally held to be good proof of adultery. Accordingly, it has been held to be sufficient evidence of adultery, pri- ma facie at least, that a man has gone to a brothel and shut himself into a room with a prostitute ; and the same is true if a married woman goes to such a house with another man than her husband, or even alone. Of course, in both cases proof of innocence, or better of an innocent purpose, is admissible, though such evidence would not have much weight in most cases. The mere fact that a man and woman live together in the same house, even with the common reputation of being married, while they are not so in fact, would probably not, without other suspicious circumstances, be held sufficient proof of adultery ; though it would be otherwise if the parties gave themselves out to be husband and wife. With reference to cases where the intent of the defendant is less clear, and where the approaches to the act have been less bold and open, the courts have used such language as this : that it is impossible to lay down in the form of a rule what circum- stances shall or shall not constitute satisfactory proof of the fact of adultery, because the same facts may constitute such proof or not, as they are modified or influenced by different circum- stances. But there must be on the whole sat- isfactory proof that a criminal attachment or purpose existed between the parties, and that opportunities occurred when the intercourse in which it is clear that the parties intended to indulge might have taken place. If, for ex- ample, a married woman were shown by un- doubted proof to have been in an equivocal position with a man not her husband, leading to a suspicion of her adultery; if it were proved