Matchin v. Matchin

Gibson, C. J. Though we are bound to determine this appeal 'on the depositions sent up with the record, they contain enough to warrant a concurrence in the general belief that the appellant was actually insane; for no woman in her senses, however lost to shame, would apprize her husband’s kinswoman, by whom her confidence was certain to be betrayed, of an assignation with a paramour. But a wife’s insanity, though so absolute as to have effaced from her mind the first lines of conjugal duty, would not be a defence to a libel for adultery, though it would be a defence to an indictment for it. The offence is a social, as well as a moral one; and it is agreed by the civilians to be less grievous, to the sufferer, though not less immoral, when it is committed by the husband, whose transgression cannot impose a supposititious offspring on the wife, than it is when committed by the ivife, whose transgression may impose such an offspring on the husband; and hence it probably was — though the kindred fault of barrenness was also cause of divorce — that the right of repudiation was confined, in the primitive ages, to the husband; for there is no instance of an exercise of it by a wife till.the time of Cicero, or shortly before it: Cooper’s notes to Justinian, lib. 1, tit. 9, sec.-1, p. 435. A libel for divorce is said to partake of-the nature of a criminal proceeding ; but the primary intent of it is undoubtedly to keep the sources of generation pure, and when they have been corrupted, the preventive remedy is to be applied without regard to the moral responsibility of the subject of it. It is true, that neither the canon law, nor our own statute, makes 'any distinction as to sex; but that the legislation of England, to which the dissolution of marriage in that country exclusively belongs, is guided by an opposite principle, is proved by its readiness to divorce for the adultery of the wife, and its reluctance to divorce for the adultery of the husband. There have been but two instances of the latter; and in each of [337] them, the offence was marked with such circumstances of brutality, that a continuance of the nuptial relation would have reflected the disgrace of the husband on the wife. The distinction is said to be preserved in the laws of many other countries; and though it is not expressly preserved in the application of the remedy under our own, we are nevertheless at liberty to conclude that insanity might be a bar to divorce at the suit of the wife, when it would not, in similar circumstances, be a bar to divorce .at the suit of the husband. To say the least, adultery committed under the irresistible impulse of that morbid activity of the sexual propensity which is called nymphomania, or more recently, erotic mania, would certainly be ground of divorce, though not of indictment. 'The great end of matrimony is not the comfort and convenience of the imrne- ■ diate'parties, though these are necessarily embarked in it; but the procreation of a progeny having a legal title to maintenance by the father; and the reciprocal taking for better, for worse, for richer, for poorer, in sickness and in health, to lo-ve and cherish till death, are important, but only modal conditions of the contract, and no more than ancillary to the principal purpose of it. The civil rights created by them may be forfeited by the misconduct of either party; but though the forfeiture can bo incurred, so far as the parties themselves are concerned, only by a responsible agent, it follows not that those rights must not give way without it to public policy, and the paramount purposes of the marriage — the procreation and protection of legitimate children, the institution of families, and the creation of natural relations among mankind; from which proceed all the civilization, virtue, and happiness to be found in the world. The absurdity of the dogma, that marriage is a sacrament, and dissoluble only by the head of the church, instead of a political status subject to the power of the state, is manifest. So far I have treated the subject as if the evidence, made out a case of moral insanity, though, in point of legal effect, it does not. Does it prove the corpus delicti ? Were the wife’s confession sufficient to prove it, the evidence of it would be ample; for she distinctly acknowledged it before the session of her church: indeed, she seems to have made only a show of persistance in denying it, and to have considered that she had done nothing very wrong. Considering her bringing up, which is admitted to have been of the most careful and exemplary kind, this dulness of the moral sense seems to have been a defect in the constitution of her mind. It is a rule of policy, however, not to found a sentence of divorce on confession alone. Yet, where it is full, [338] confidential, reluctant, free from suspicion of collusion, and corroborated by circumstances, it is ranked with the safest proofs. There is no doubt as to the ndture of the rule, or difficulty in its application to the evidence before us. The facts resulting from it are, the wife’s disclosure of the assignation to her husband’s kinswoman ; her absence at the indicated hour; her visit to a neighbour immediately preceding it; her abrupt termination of it, and feigned excuse for going; her presence at the appointed time and ^ place in company with the man she was to meet; the shifting of their ground at the approach of an intruder; the disordered condition of her clothes when she came back; her declaration to her confidant the same evening, and confession to the church session next morning: these, together, make up the sum of plenary proof. To say nothing of the confession of her accomplice, which, not having been communicated to her, and confirmed by her, was not evidence to affect her, there was enough for the purpose of inculpation without the confession of either. It is a fundamental rule, said Lord Stowell, in Loveden v. Loveden, 2 Haggard, 2, that it is not necessary to prove the direct fact of adultery; for, being committed in secret, it is seldom susceptible of proof except by circumstances which, however, are sufficient whenever they would lead the guarded discretion of a reasonable and just man to a conclusion of guilt. On this principle, a wife’s visit with a man to a brothel, or to a man at his lodgings, has been held sufficient proof of it, because it is impossible to assign an innocent motive for such a meeting; nor can an innocent motive be assigned for meeting a man in the dark at a barn-door, in a secluded alley, with the stealthy and shrinking timidity of conscious impropriety. That the preconcerted design was partly put in act, is as convincing evidence of the consummation of it, as would be the testimony of an eye-witness to the fact. There was nothing but the will of the parties themselves to stop them. We are of opinion, therefore, that the sentence is sustained by legal and sufficient proof. Sentence affirmed.