[HOUSE OF LORDS.]

AND

Husband and Wife - Wife's Adultery - Condonation - Subsequent acts of Misconduct - Doctrine of Canon Law - Non-revival of condoned Adultery in Scotch Law - Weight of English Divorce Cases.

By the law of Scotland full condonation of adultery (remission expressly or by implication in full knowledge of the acts forgiven), followed by cohabitation as man and wife, is a remissio injuri¾ absolute and unconditional, and affords an absolute bar to any action of divorce founded on the condoned acts of adultery. Nor can condonation of adultery - cohabitation following - be made conditional by any arrangement between the spouses.

Although the condoned adultery cannot be founded on, condonation does not extinguish the guilty acts entirely, and they may be proved so far as they tend to throw light upon charges of adultery posterior to the condonation.

A wife confessed to several acts of adultery with E. Her husband for-gave her and resumed cohabitation on the alleged condition that she should not speak or hold any communication with E. again. Subsequently she met E. by appointment several times under suspicious circumstances; but, admittedly, no act of adultery could be proved. The husband sued for a dissolution of the marriage on the ground that the condoned adultery was revived by the wife's subsequent conduct:-

Held (affirming the decision of the Court below), that to obtain a divorce he must prove adultery subsequent to the condonation, and no less.

The doctrine laid down in Durant v. Durant (1 Hagg. Ecc. Rep. at p. 761) not approved without qualification.

Dent v. Dent (34 L. J. (P. M. & Ad.) 118; 4 Sw. & Tr. at p. 106). Direction of LORD PENZANCE to the jury questioned on principle; and that case distinguished from Blandford v. Blandford (8 P. D. 19, adultery reviving desertion).

Per LORD BLACKBURN:- The doctrine of revival of adultery as a ground on which a divorce has been granted is to be strongly objected to as varying the status of married persons. On principle, a reconciliation being entered into with full knowledge of the guilt and with free and deliberate intention to forgive it, where that reconciliation is followed by living together as man and wife, the status of the couple ought to be the same and not more precarious than if there was a new marriage.

Per LORD BLACKBURN:- Assuming it to be now established English law that any matrimonial offence, though forgiven, may be revived by any other

matrimonial offence of which the Courts take cognizance, it is very modern law, and not so obviously just and expedient that this House ought to infer that it either was or ought to have been introduced into the law of Scotland.

See LORD WATSON'S opinion (p. 257), for the terms of a remission of adultery which would not constitute plena condonatio in the law of Scotland.

APPEAL from an interlocutor of the Second Division of the Court of Session, Scotland, in a suit for divorce, instituted by the appellant Alexander Glen Collins, against Cornelia Thomson Pattison, or Collins, his wife, and the respondent, William Henry Eayres.

The appellant was married to his wife in 1872, and they had issue four children. In July, 1881, Mr. and Mrs. Collins were yachting in the Sound of Mull, and being at anchor in Ardtornish Bay, on the 27th of July, Mr. Collins noticed his wife attempting to conceal a letter from him, which she eventually tore up and threw overboard. He lowered a boat and obtained the fragments. On returning to the yacht, Mrs. Collins confessed to him that she had been guilty of adultery with Eayres on several occasions in that year. She asked for forgiveness; Mr. Collins desired her to write down all that she wanted forgiven. Mrs. Collins then wrote a letter, which after giving a circumstantial account of her adulterous connection with Eayres, continued:- "But oh, dear Alick, if you do but forgive me all this, I promise never again to dishonour you or myself again."

As to what occurred after this letter was written, Mr. Collins said in his examination:-

"When I got that letter I said at first that I would consider whether I would forgive her or not, and shortly afterwards I told her for her children's sake and her own sake, on condition she never spoke to or wrote to the man again, I should forgive her. I think these were the only words I used. I repeated them several times."

In cross-examination he said:-

"I expressed to my wife my resolution to forgive her immediately after her confession, and in the cabin of my yacht late in the afternoon. I slept in the same cabin with her that night, there being one berth on the one side of the cabin and one berth on the other. I had resolved to forgive her, and had expressed my forgiveness before night. The precise words which I used in expressing my forgiveness were, that if she would promise never to speak or write to him again I should forgive her on these conditions. That was after I got the letter from her. The reason why she wrote the letter was that she went

on telling me different instances of her infidelity till I got sick of it, and I asked her to write down everything she had to confess. That was with the view of my granting her forgiveness. ... She agreed to what I expressed. She repeated the words after me - that she never would speak or write to the man again, and never would dishonour me again. She repeated that to me several times, I repeated to her several times the terms on which I would forgive her."

Mrs. Collins, in her examination, stated:-

"In 1881 circumstances occurred which led to my making a statement to my husband as to certain occurrences in my life that year. He expressed to me forgiveness for what I had told him. He fully and freely forgave me. He brought me a letter written out in pencil by himself, and asked me to copy it and sign it, and give it back to him, which I did. ... I made a full statement to him, and he expressed his forgiveness fully and freely. (Q.) Can you say, with certainty, whether anything was said about its being on condition that you should not see or speak to Eayres? (A.) There was no such condition whatever."

On being further examined by the Court, Mrs. Collins said:-

"When my husband forgave me he did not require me to promise that I should never see Eayres again. There was not a word spoken about that; he gave me full and free forgiveness, on condition I told him all I had done. He did not forbid me having anything to do with Eayres again."

Eayres was a professional musician, a violinist, who had been acquainted with Mrs. Collins before her marriage. After the reconciliation, Mrs. Collins proposed that she should write to Eayres to get back a ring and some other presents, which she had made him, and also her correspondence. A draft letter was prepared, and Mrs. Collins re-wrote it and sent it.

In this letter Mrs. Collins told Eayres she had been unable to bear the life she had been leading any longer, and had told her husband everything, and added, "my eyes are fully opened to all my sin, and I hope in the future to live a true life, and ask your forgiveness for any injury I have done you. You must never make any attempt to see me again, as I place myself fully under my husband's protection, and will be his only now and for evermore."

The ring and correspondence were not returned by Eayres. Mr. Collins' solicitor inquired for them, and he was informed that most likely the jewellery had been pawned, and the letters burnt. In December, 1881, Mr. and Mrs. Collins were living in

Glasgow. The appellant, thinking Eayres might be engaged at some concerts which were advertised, proposed to Mrs. Collins that she and her sister should go to England. She declined, giving various reasons, which he did not consider satisfactory. The first concert was fixed for the 12th of December, and Mr. Collins, when he found Eayres was to be one of the performers, engaged a detective to watch him. In December Mrs. Collins was observed near Eayres' lodgings, and in January, 1882, she was seen to speak to him, and on the 26th of January she met Eayres according to appointment about five o'clock, and walked with him arm-in-arm up an uninhabited road called the Eglinton Drive, and according to the suggestion of the detective and his wife, who were watching them, they went into an unfinished house, where they remained for about ten minutes, and then walked away and separated. On the 27th she spoke to Eayres again. Mrs. Collins said in her examination that she had seen Eayres several times in January, but she sought these interviews with him with the sole object of getting back her ring and correspondence, because she never felt safe that he or his wife would not expose her and her husband so long as he had these letters in his possession. She added that she knew on the 26th of January, 1882, and long before, that she was being watched. Both Mrs. Collins and Eayres in their examination denied that they had committed adultery either on the 26th of January, 1882, or at any of the other meetings in that or the previous month.

On the 27th of January the detective made his report of the walk on the previous day of Mrs. Collins and Eayres. On the 29th of January Mr. Collins left his home, and on the 4th of February desired Mrs. Collins to leave his house, and issued, on the advice of his lawyers, his summons in this action praying for a decree of divorce on the ground of her alleged adultery with Eayres, who was also called as co-defender.

He set out (Condes. 3), the dates prior to the forgiveness, on which the respondent had committed adultery, and his forgiveness of these acts, "on the express condition, undertaken by the respondent at the time, as the condition of condonation, that she should never again speak or write to Eayres." He then averred

(Condes. 5), that the condition was broken by the respondent, inasmuch as in December, 1881, and January, 1882, "she and the co-defender (Eayres) renewed their acquaintance and intimacy," and "were in the habit frequently of walking together alone." Lastly, he averred (Condes. 6), "that on or about the 26th of January, 1882, and after dark, the respondent committed adultery with the co-defender (Eayres) in or near an unfinished and unoccupied house in Eglinton Drive, Kelvinside, Glasgow, or in or near a mason's shed adjoining."

In answer to the action the respondent pleaded condonation with respect to the adultery averred prior to the 27th of July, 1881, and denied the act averred to have been committed on the 26th of January, 1882. The co-defender Eayres did the same.

The respondent's pleas in law were as follows:-

"(1.) The defender not having been guilty of adultery as libelled ought to be assoilzied. (2.) The averments in article 3 of the condescendence are not relevant to be admitted to probation; and, separatim, they cannot form the ground of a decree of divorce against the defender. (3.) The pursuer having continued matrimonial cohabitation with the defender in the knowledge and belief aforesaid, he cannot found to any effect upon the acts alleged in Condescendence 3, and, separatim, he cannot obtain decree of divorce on the ground thereof."

The appellant's action also contained a conclusion for £1000 damages against Eayres. On the 22nd of March, 1882, the Lord Ordinary (1) allowed the parties a proof of their averments(2).

(1) Lord Fraser.

(2) 9 Court Sess. Cas. (4th Series), 785. The Lord Ordinary said: "The defender maintained that no proof ought to be allowed of acts of adultery prior to the condonation, which the pursuer himself states that he had made in favour of the defender, as set forth in the 3rd article of his condescendence. If it had not been for the qualified terms in which the condonation was given, the Lord Ordinary would have sustained this plea. He is of opinion that the law of Scotland, following in this respect the canon law, absolutely wipes out any guilt prior to condonation, and it cannot be brought up again to the prejudice of the pardoned spouse for any purpose whatever (Lockhart v. Henderson, Morison, App. vide Adultery, No. 1), - 'that reconciliation is a complete objection on both sides to proof of prior guilt then known to the parties.' The exact point decided in the case was, that condoned adultery could not be revived with the view of making it a substantive charge entitling to divorce, and this is the length to which Erskine carries the effect of remissio injuri¾. He says, 'cohabitation by the injured party, after being in the knowledge of the acts of adultery committed by the other

This interlocutor permitted the appellant to produce evidence of the condoned adultery: the respondent Mrs. Collins, contending that the condoned acts should not be allowed to proof, reclaimed

spouse, if it has not been constrained by force or menaces, imports a passing from or forgiveness of the prior injury, and is therefore sufficient to elide any action of divorce that may afterwards be pursued upon those injurious acts.' (1, 6, 45).

"The pursuer, however, says that he does not mean to found upon the condoned adultery as a ground for divorce, but as shewing how intimate the defender and co-defender were with each other, and the high probability that, if they had opportunity, they would repeat their adulterous conduct. Even to this limited extent (and the demand is plausible enough), the Lord Ordinary could not admit any proof of what the condonation had swept away. He conceives that the authorities upon this subject, such as Sanchez, which have guided the Consistorial Courts in Scotland, forbid any reference whatever to the wife's former adultery. The case is to be treated the same as if the marriage had just begun, and the wife were pure and innocent. The case is different according to English law, which treats all condonations as conditional, and as being repealed by any subsequent conjugal misconduct. A striking illustration of this will be found in the most recent cases on the subject (Newsome v. Newsome, 6th of June, 1871 (Law Rep. 2 Prob. & Div. 306)), and the import of the English cases is, that to revive condoned adultery, it is not necessary that the new injury should be of the same nature, but that cruelty, desertion, or other improper conduct was sufficient (Snow v. Snow, 2 Thornton's Notes Cases, Supp. p. 1; Bramwell v. Bramwell, 3 Hagg. Ecc. Cas. 618; Westmeath v. Westmeath, 2 Hagg. Ecc. Cas. Supp. 1, and other cases noted in Pritchard's Dig. p. 74, No. 71).

"This is not the law of Scotland, as the case of Lockhart shews. Sanchez states the doctrines (De Matrimonii 10, 5, 21) in a sentence, 'primum illud adulterium jam est remissione extinctum. At crimen semel transactione aut indulgentia accusatoris extinctum non potest amplius ab eodem in judicium deduci.' Had, therefore, this been the simple case of the innocent husband claiming right to prove condoned adultery against a wife who had relapsed, with the view merely of shewing the intimate relationship between her and her paramour, the proof would not have been allowed. But the speciality in the case is, that the pursuer avers that condonation was given, 'on the express condition undertaken by the defender at the time as the condition of the condonation, that she should never again speak or write to the co-defender. The said condition has been broken by the defender as aftermentioned.' That a husband who has been wronged by the infidelity of his wife may attach a condition to his pardon, is a proposition to which no sound objections are apparent. It was within his power to give or withhold the pardon, and if so, there is nothing contrary to principle or to public policy to hold that he could state the terms and conditions upon which she was to be again reinstated in her place as wife. This, in truth, is shewn by the present state of the law of England, which is the same, without any

to the Second Division of the Court of Session. Their Lordships on the 16th of May, 1882, refused the note, and adhered, remitting the cause to the Lord Ordinary to proceed (1). This interlocutor was not appealed from.

express condition, as the alleged express condition would make the present case (see contra, post, p. 233).

"In these circumstances, it is necessary to allow the pursuer a proof of the conditional nature of the remissio, and seeing this proof must be taken, it would divide the case, without any apparent advantage, if a proof were not allowed at the same time of the condoned adultery. Of course, if the condonation was unconditional, no attention whatever will be given to such proof.

(1) LORD CRAIGHILL said:- "The contention of the defender is, that having been condoned, evidence regarding them, for any purpose whatever, cannot be admitted. I am of opinion that this contention is erroneous, and has been properly overruled. I am not to be held, however, as concurring in all the reasons which the Lord Ordinary has given for his judgment. It is sufficient for me to say that upon one ground, even if there were no other, the proof granted, as I think, has been properly allowed. Assuming the acts of adultery condoned can never be made grounds of action for a divorce, it does not follow that evidence as to these may not be received when the question is whether subsequent acts of adultery have been committed. There is no authority against this, for it is a misapprehension to say that the decision in the case of Lockhart, or the passage quoted from Erskine, is an adverse authority. The reason of the thing appears to me to be an ample justification. Were an opposite doctrine to be sanctioned, the effect of condonation would be not merely to protect against divorce for the adultery condoned, but to limit the proof by which subsequent acts could be established. This consideration of itself appears to me to be sufficient to support the judgment of the Lord Ordinary, though certainly it is not the ground upon which that judgment has been rested. The view upon which the Lord Ordinary proceeds is, that the acts of adultery condoned may not be made grounds for a subsequent divorce, but that the present must be treated as an exception from the rule, inasmuch as the condonation was conditional. Whether there is room for this distinction may be questioned, because much may be said in favour of the opinion that every condonation is conditional upon subsequent behaviour. A decision upon this point, however, is at present unnecessary, and therefore ought not in the meantime to be pronounced. Should circumstances after the proof has been led render a decision necessary, the question will be taken up and be the subject of judicial determination. Meantime I reserve my opinion. There is another speciality in the present case. A co-defender is here sued for damages, and whether the effect of condonation extends to him is a point which hitherto has not been decided, and may properly be postponed."

LORD RUTHERFURD CLARK:- "The

On the 27th of June, 1882, the Lord Ordinary having taken the proof and heard counsel, pronounced the following interlocutor:-

"Finds that the defender committed adultery with the co-defender within the Clarendon Hotel, Princes Street, Edinburgh, on the 4th of February, 1881; and

question now before us is whether we should allow proof of the acts of adultery prior to the condonation, reserving in the meantime the effect of such proof - should the acts be established - on the result of the action. It is possible that one or other of two effects attach to proof of the alleged prior acts of adultery. On the one hand, they might form the substantive ground of divorce, or on the other hand, they may be regarded as throwing a certain light on the behaviour of the defender and co-defender in December, 1881, and subsequently, so as to enable the Court to form a correct conjecture as to the truth of the accusation made against them. I give no opinion on the question as to whether the pursuer is entitled to found on the prior acts of adultery as affording ground for divorce. I purposely refrain from expressing any opinion upon that point, because, if the acts be proved, it must necessarily come up for decision at a later stage. But upon the question whether they may be properly used for the other purpose which I have indicated I have no doubt whatever. I do not proceed in any degree on the condition said to have been attached to the condonation. I think that the pursuer is entitled to lay before the Court all the evidence which will enable it to form a correct judgment on the facts of the case, and I do not think in such a case that there is anything more important than all possible evidence as to the behaviour of the parties throughout their whole intimacy. For that purpose I think that the evidence in question should be admitted. The Lord Ordinary has said that in the law of Scotland condonation wipes out all guilt prior to it, so that it cannot be brought up again to the prejudice of the pardoned spouse for any purpose whatever, and quotes authorities to support that view. I do not, however, look at these authorities in the same way. It seems to me that the case of Lockhart decides that an act of adultery which has been condoned cannot of itself form the sole ground of divorce, and that the dictum of Erskine is precisely to the same effect. The opinion of Sanchez, which is also relied upon, appears to go no further. These authorities lay down that acts of adultery prior to condonation will not found an action for divorce, but they do not say that the Court is not to have evidence of the whole conduct of the accused persons before it."

LORD YOUNG said:- "I concur. It has not been doubted since the case of Lockhart in 1799, and I should have difficulty in finding grounds for a contrary view, that a husband who has condoned an act of adultery on the part of his wife should have no action against her for what he has condoned - there being no subsequent misconduct. This last is the feature of Lockhart's Case. In that case the wife's adultery, which had admittedly been condoned, was the sole charge against her, and I should have thought there was very little difficulty felt in deciding that that could not be made a ground of divorce. That is all that Lockhart's Case decided. It does not

also in the Great Northern Hotel, King's Cross, London, on the 23rd of May, 1881; and also at a hotel in Dorking on the 3rd, 4th, 5th, and 6th days of June, 1881; and also upon one occasion in the year 1881 in the pursuer's house at 9 Windsor Terrace West, Glasgow: Finds that the whole of these acts of adultery on the part of the defender were condoned by the pursuer: Finds that the defender has not been guilty of such conjugal misconduct since said condonation as would entitle the pursuer to declare the said condonation revoked, so as to enable him to found upon these acts of adultery as a ground of divorce:

decide nor give any indication as to what the law is in such a case as this, and what amount of subsequent misconduct will be sufficient to forfeit the condonation so as to obliterate it and disentitle the forgiven person to plead it. No decided case or dictum lays down any rule as to that. It is not necessary at this stage of this case to determine whether, if the pursuer establish misconduct on his wife's part subsequent to the condonation, she shall be held disentitled to plead condonation. But I think it is perfectly competent in an action in which subsequent misconduct is alleged for a husband to prove the conduct of the accused parties prior to the condonation. That is plain common sense, and the authorities lay down nothing opposed to it. There is no such rule of law, as the Lord Ordinary seems to think there is, to the effect that the conduct of a guilty party prior to condonation may not be inquired into with respect to subsequent misconduct. The law in England seems to be undoubted on the point. I am very clearly of opinion that this case is not made at all special by the alleged express condition adjected to the condonation when given. I do not think there is anything in that at all, and I cannot agree with the Lord Ordinary when he says, - "That a husband who has been wronged by the infidelity of his wife may attach a condition to his pardon, is a proposition to which no sound objections are apparent. It was within his power to give or to withhold the pardon, and if so, there is nothing contrary to principle or to public policy to hold that he could state the terms and conditions upon which she was to be again reinstated in her place as wife." I cannot agree with that at all. I am not of opinion that if she spoke or wrote to the man she would therefore forfeit the condonation. By Act of Parliament a man is entitled to entail his estates on any lawful condition he may please, but I am not aware that a man can say to his wife, "We will let bygones be bygones, but if you do something - say, do not get up at six in the morning - I shall have my action." That cannot be so. I think that condonation must be rational. It must imply, "I forgive you for your own and our children's sake, but you shall not be entitled to plead this against me if you misconduct yourself with this man again." That is plain common sense. All we need determine at this stage of the case is that the whole case must be put before the Court - the conduct of these accused parties over the whole time of their intimacy. I, in common with your Lordships, reserve my opinion on the other point, although I have a strong impression what will be the effect of the evidence of former misconduct if the pursuer's allegations are accurate."

In particular, finds it not proved that the defender, on or about the 26th of January, 1882, committed adultery with the co-defender in or near an unfinished and unoccupied house in Eglinton Drive, Kelvinside, Glasgow, or in or near a mason's shed adjoining: Therefore assoilzies the defender from the conclusions of the action for divorce; finds her entitled to expenses from the pursuer: As regards the co-defender, finds in the circumstances of this case that he is not liable in damages as concluded for; finds no expenses due to the co-defender: With regard to the conclusion of the summons as to the custody and keeping of the children of the pursuer and defender, finds it unnecessary, in hoc statu, to pronounce any deliverance thereon, but reserves to either party to make application in this process to the Court in reference thereto, in the event of the pursuer and defender not again cohabiting as husband and wife, and decerns (1)."

(1) 10 Ct. Sess. (Cas 4th Series, 250. The Lord Ordinary, having stated the facts; that he was unable to come to the conclusion that the defender's determination to see Eayres was with any guilty intent, and that it was not proved that adultery took place on the 26th of January, 1882, continued -

"3. But then comes the question, that supposing adultery not to have been proved as having taken place on the 26th of January, is the pursuer entitled, - in consequence of the conduct of the defender, in violating the condition of never speaking to Eayres again, - to demand divorce because of the previous adulteries that had been condoned?

"The doctrine of condonation of adultery is derived in Scotland from the Canon Law, which was the law administered in this country in this class of cases (except in so far as altered by statute) both before the Reformation and ever since. That law was simply this, that if one spouse condoned the adultery of another, the offence was entirely extinguished. It could not be referred to, notwithstanding the subsequent misconduct of the erring spouse. The case was the same as if a new marriage had been entered into. It was a matter entirely within the power of the innocent spouse to condone the offence, or to insist for the remedy which the law allowed - separation or divorce; and being entirely within his right, the Lord Ordinary is of opinion that he was entitled to adject any reasonable condition to his condonation. He was not, of course, entitled to adject absurd or fantastical conditions. But the matter being for him to forgive or to refuse forgiveness, it does not seem to be unreasonable for him to stipulate that the condonation should only have effect on the condition that intercourse with the paramour should for ever case. This question in regard to express conditions attached to the condonation was considered by Dr. Lushington in the case of Bramwell v. Bramwell (3 Hag. Eccl. Rep. p. 618). He refers to the matter as follows, at p. 629: 'Condonation, however, has been set up: but this condonation is not only conditional in the eye of the law, as all condonations are, but it is specially so. ... Assuming that the condonation was complete, and extended to all the previous adultery, under what circumstances and on what conditions was it given, and what was the duty of the husband, and what was his conduct afterwards? He solemnly engaged to separate himself entirely from this woman (Jeffery), and if

The appellant having reclaimed, the Second Division, on the 1st of December, 1882, pronounced this interlocutor:-

"The Lords having heard counsel, Recal the said interlocutor: Find that the pursuer has failed to prove that the defender committed adultery with the

possible not to carry on the least correspondence with her: yet shortly after this Mr. and Mrs. Bramwell go to Epsom; and he clandestinely returns with Jeffery to Tunbridge Wells, &c. Can it be contended that this was conduct in conformity with Bramwell's solemn engagement? Here was not a solitary meeting, but meetings frequent, for a length of time, and purposely concealed from his wife. Is the Court to believe from the ingenious suggestions of counsel, or from the asseverations of the party, that these meetings were merely to settle accounts? It is true Wiles states that she did see them engaged about accounts; but was it not Mr. Bramwell's duty to have been specially cautious that such interviews should not occur without information to Mrs. Bramwell, and should take place only in the presence of a third party? It is too much to ask of the credulity of the Court not to infer from this conduct a criminal attachment.' The Lord Ordinary has held it proved that the secret inter-views which the defender had with the co-defender in the month of January were not with a guilty intent, and therefore he cannot reach the conclusion to which Dr. Lushington pointed, namely, that the breach of the condition on which condonation was given, revived the right to divorce.

"Mr. Fergusson, who was long a Consistorial Judge, refers to this matter of condonation in his treatise on Consistorial Law (p. 178): also Lord Watson's opinion, p. 249.

"Now, then, what was the meaning of the 'particular agreement' between the parties when the defender made the confession of her guilt at Ardtornish Bay? It must be construed with reference to the purpose that the pursuer naturally must have had in his mind at the time. According to the pursuer himself, he exacted from his wife a promise that she would not 'dishonour' him again. Without putting too strict a meaning upon that word, it may be held that the pursuer required, and the defender promised, that there should not be any intercourse of an intimate character, - not merely sexual intercourse, - but intercourse such as is had by ordinary acquaintances, between the defender and co-defender at any future time, and that she should never voluntarily meet him or speak to him, if circumstances did not render that necessary. But it did not infer a breach of the condonation, if there had been an accidental interview between them, or an interview for a purpose other than a renewal of the old intimacy. Now, so far from the defender and co-defender wishing to renew that intimacy in the month of January, it is plain that this was against the desire of both. Eayres, no doubt, with a view in all probability to purposes of future extortion of money, refused to part with the letters and the ring, and kept the woman in constant excitement and agitation, till she seems to have lost all sense of prudence, in her endeavours to extract from him the evidence of her guilt. But the Lord Ordinary cannot hold that the express condition upon which the condonation was given has been broken; and consequently the right to sue for

co-defender on the 26th of January, 1882, as libelled: Find that the pursuer cannot found on the previous acts of adultery alleged by him, in respect that such acts were condoned by him, and that such condonation is by law absolute:

divorce for the condoned adulteries is not revived.

"4. But now to take the other view of this case, viz., that in the face of the defender's denial the condition cannot be held proved. Does the law imply a condition, the breach of which would revive the condoned adulteries as grounds of divorce? It was contended by the pursuer that, apart altogether from the express condition, and holding it not to be proved, the law implied a condition that unseemly, suspicious, and compromising conduct on the part of the defender, such as took place in January, 1882, was such misconduct as revoked the condonation. To this view of the law of Scotland the Lord Ordinary cannot subscribe. In England it would appear that conjugal misconduct subsequent to the condoned adultery - even though not ejusdem generis, such as cruelty - will operate as a revocation of the condonation. Sir John Nicholl in the case of Durant v. Durant (1 Hag. Eccl. Rep. pp. 733, 761) thus stated the law of England on the subject: [sec post, p. 237]. [His Lordship then read the passages quoted by Lord Blackburn, and continued:-]

"If adultery subsequent to the condonation were proved, there would be no necessity for founding upon the adulteries that had been condoned; but the proposition is, that something less will revive the former adulteries. It seems to be the English law, that the condition of the condonation is, that the injured party shall thereafter be treated with conjugal kindness, and that unless this were carried out, divorce or separation could be obtained for the condoned adultery. The Lord Ordinary is not aware of any authority in the law of Scotland for this doctrine. Unfortunately, until recent years, the consistorial jurisdiction was exercised by a Court whose decisions are unreported; but the Lord Ordinary has had occasion to examine the manuscript records of the Commissary Court, and never found any case where there was a suggestion of this doctrine. The Scottish law on the subject is, as already said, derived from the Canon Law, wherein no such rule as to the revocation of condonation is to be found. Sanchez, the best and most learned expounder of that law, explains it, when he says, that the first adultery is, by the remissio, extinct, and can never be referred to again (lib. 10, disp. 5, ss. 19, 21).

"In enumerating the cases where divorce will not be granted, though there may have been adultery, his last head is as follows (sect. 19):- 'Ultimus casus est, quando conjux innocens alteri condonat adulterium, et sic reconciliantur. Cum enim divortium sit in favorem innocentis, potest innocens cedere jure suo, delictumque condonare, et sic cessabit jus divortii. H¾c autem remissio est duplex, qu¾dam expressa, quando, scilicet, verbis expressis innocens conjux adulterum sibi reconciliat, condonans delictum. De qua reconciliatione loquitur textus l. si maritus 25, § si negaverint: ff. ad l. Juliam, de adulter, probans ex tunc minim�, audiendum esse maritum de adulterio accusantem. Non tamen satis esset remissio mente retenta, nec signo aliquo externo conjugi nocenti expressa. Quia propositum mente retentum in his contractibus inter homines initis, nullius efficaci¾ est. Deinde, quia cum

Therefore of new assoilzies the defender from the conclusions of the action for divorce: As regards the co-defender, Find that in the circumstances of the case he is not liable in damages as concluded for: Find no expenses due to him;-"

remissio illa sit velut qu¾dam juris divortii et accusandi donatio, oportet ut firma sit, eam parti, cui fit, intimari.'

"After thus dealing with the law as to the effect of condonation, he proceeds to the question whether subsequent adultery will revoke it (sect. 21). The canonist commentator, John Lupus, maintained that it did; and he is thus disposed of:- 'Im˜ Joannes Lupus, eod. cap. per vestras in princ. sect. 9, num. 22, ait posse forsan, attentari, ut conjux ille reconciliatus relapsus in adulterium possit etiam de adulterio condonato accusari. Sed merito illum improbant Covarruvias, Barbosa, Azebedo, Surdus, Lodovicus Lopez, Quoniam primum illud adulterium jam est remissione extinctum. At crimen, semel transactione aut indulgentia accusatoris extinctum, non potest amplius ab eodem in judicium deduci' cap De his accusat. This is the law of Scotland.

"To the same effect is Voet, who says that divorce will be granted if adultery be proved (De Pandectas, 24. 2. 5):- 'Vel post adulterium perpetratum reconcilatio intercesserit, sive illa consensu aperto conjugis insontis, sive rebus ipsis et factis per concubitum ad adulterii scientiam subsecutum declaretur; cum cuique liceat juri suo renunciare, ac injuriam ei remittere, ˆ quo eam passus est. Quod vero alibi dicuntur mariti crimen lenocinii contrahere, qui deprehensam in adulterio uxorem in matrimonio retinuerunt.'

"All the authors referred to by Sanchez and Voet speak of the prior adultery as being totally extinguished. One of them, Sande, the President of the Supreme Court of Friesland, while he lays down the doctrine in the same terms as Voet and Sanchez, illustrates it by a decision of the Court of which he was President (Decisiones Frisic¾, book ii. tit. 6, def. 2).

"'H¾c ita, nisi reconciliatio intervenerit, qu¾ intervenisse pr¾sumitur, si vir sciens uxorem esse adulteram, ipsam cognoverit, vel mulier viro notori� adultero debitum conjugale exsolverit: tunc enim ejus mores approbasse, eique agnovisse censetur. Ac adc˜ crimen adulterii isthac reconciliatione extinctum est: ut si postea maritus vel uxor in idem crimen relabatur, prius illud amplius in judicium deduci nequeat, sed posterioris adulterii nomine tantum agendum sit. Hinc mulier agens nomine adulterii ˆ marito commissi ad dissolutionem matrimonii, declarata fuit (ut in foro loquuntur) non receptibilis, quia fatebatur se post admissum crimen diu marito cohabitasse, et ab ipso cognitam fuisse. Nec movit Senatum, quod aliquo modo probabatur, virum pendente lite, denuo adulterium admisisse: id enim novo processu ac nov‰ instanti‰ persequendum videbatur.'

"The law as laid down by Pothier (TraitŽ du Mariage, art. 520) was to the same effect: 'Lorsqu'il a ŽclatŽ un commencement de rupture entre un mari et une femme, qui a ŽtŽ suivi d'une rŽconciliation, les faits de mauvais traitements, qui ont prŽcŽdŽ ce commencement de rupture, sont couverts par la rŽconciliation, qui rend la femme non-recevable ˆ s'en plaindre. C'est pourquoi la femme ne doit pas, par la suite, �tre ŽcoutŽe dans une demande en sŽparation, si ce n'est pour des faits nouveaux qui se soient passŽs depuis la rŽconciliation.'

"With regard to the conclusions of the summons as to the custody of the children of the pursuer and the defender - Find it unnecessary, in hoc statu, to pronounce any deliverance, but reserve power to either party to make application

"This rule was altered in France by the Code Civil. From 1803 down to 1816 divorce ˆ vinculo was allowed in France for adultery, and the provision of the Code Civil in regard to remissio injuri¾ is contained in arts. 272, 273, and 274. Art. 272 is as follows: 'L'action en divorce sera Žteinte par la rŽconciliation des Žpoux, survenue soit depuis les faits qui auraient pu autoriser cette action, soit depuis la demande en divorce.' Then the next art. 273, for the first time allowed a reference to condoned adultery: 'Dans l'un et l'autre cas, le demandeur sera dŽclarŽ non-recevable dans son action; il pourra nŽanmoins en intenter une nouvelle pour cause survenue depuis la rŽconciliation, et alors faire usage des anciennes causes pour appuyer sa nouvelle demande.' These articles have no longer operation in France, except in regard to articles of separation, which is the sole reparation given to an injured spouse. The reference to the earlier wrongs was thus introduced by the special legislation of the Code; and the mode in which this has been interpreted by the French Courts is thus stated by M. Demolom be in his treatise on the Code Civil (vol. ii. p. 529): 'L'article 273, en permettant de faire revivre les anciens faits, n'accorderait ˆ l'Žpoux qu'une facultŽ illusoire, s'il Žtait m�me alors nŽcessaire que les faits nouveaux fussent, par eux-m�mes, et par eux seuls, assez graves pour faire prononcer la sŽparation. Aussi cette condition n'est-elle pas nŽcessaire; les faits anciens et le pardon m�me qui les avait suivis, peuvent imprimer aux faits nouveaux la gravitŽ qui leur manquerait sans cela. Peu importe, d'ailleurs, que les faits nouveaux soient de m�me ou de diffŽrente nature que les faits anciens et d'abord pardonnŽs. Le texte (art. 273) et la raison n'exigent aucune condition de ce genre. Des exc�s, des injures pourraient donc faire revivre une cause rŽsultant de l'adult�re, et rŽciproquement.' Thus the French law has been made almost identical with the law of England, - but only through the action of the legislature. In the absence of any legislation on the subject as regards Scotland, it must be held that the law of Scotland has not advanced to this extent; and the case of Lockhart v. Henderson (Mor. App. vide Adultery, No. 1) is an authority against it. The reason for the rule of the Canon Law, and followed in Scotland, has been well stated by Chief Justice Parsons, - the Chief Justice of Massachusetts, - thus: 'It would be injustice to the wife, and immoral in the husband, to claim and enjoy as his peculiar marital rights the society of his wife, after a knowledge of her offence, and afterwards to cast her off for that same offence.' But taking it that the law of Scotland is otherwise, and that the English rule is that of this country, did the wife violate the condition of treating the pursuer with conjugal kindness by her conduct in January, 1882? What has been already said as to the breach of the express condition on which condonation was granted - assuming it to be proved - is applicable to the alleged breach of this implied condition. Imprudent the defender undoubtedly was, and foolish, in having secret interviews with a man like Eayres. ... Granting all this, still, when it is found that the wife had no guilty purpose, but was intent merely to get destroyed

to the Court with reference thereto in this process, in the event of the pursuer and defender not again cohabiting as husband and wife, and decern (1)."

Mr. Collins appealed against this interlocutor; and (5th July, 1883) the case was set down for hearing ex parte as to the defender Eayres.

that which embittered her existence, - the evidence of her former offence - it cannot be held that she violated any implied condition - taking it in the widest sense in which the English cases have regarded it - on which her pardon was granted. In regard to this matter of condonation there was a proposition submitted by the defender which the Lord Ordinary cannot adopt. It is proved that the pursuer obtained information from Knowles (the detective) as to what happened on the 26th of January, and that he thereafter slept with his wife on the three following nights. This it is said is condonation of the adultery on the 26th of January, if that should be held to be proved. Now, in order to infer condonation from subsequent cohabitation, the condoner must be proved to have had not merely knowledge of the facts, but also a reasonable probability that he will be able to prove the adultery. The pursuer had not such knowledge on the 27th, 28th and 29th of January; and it was only after he had got the legal opinion from the Glasgow writer, that he found himself in the position to break up matrimonial cohabitation."

The Lord Ordinary then expressed his opinion, that the claim for damages against the co-defender could only be sought on ground of the adultery condoned, and that application was now too late. The Lord Ordinary, however, was of opinion that it was quite compatible with forgiving a repentant wife to demand reparation from the man who has brought dishonour both upon her and upon her husband, and has diminished the happiness of both. But such a claim should be raised immediately on the condonation.

(1) LORD YOUNG:- "The argument to us related to these three questions: 1st, Whether the act of adultery alleged to have been committed in the mason's shed is proved? 2nd, Whether condonation of adultery (cohabitation following) is conditional at common law, or may be made so by express paction, so that it will be forfeited by breach of the condition? And, assuming an affirmative answer on either head, then 3rd, Whether the defender has forfeited the condonation by a breach of the condition legally or pactionally attached to it."

[His Lordship then said that he agreed with Lord Fraser that adultery was not committed on the 26th of January, 1882, and continued]:-

"On the second question argued to us, I am of opinion that condonation of adultery (cohabitation following) is not conditional by our common law, but absolute. The language of our text-writers and judges is to this effect, and although the doctrine of such condonation has been long familiar and acted on in this country, none of our authorities suggest that it is or may be accompanied by a condition. I think this is a weighty argument, notwithstanding the fact that no actual case has been found in which conditionality was pleaded and judicially rejected or allowed, for all our judicial language, including that of our text-writers, is exclusive of the notion of conditionality

1883. Nov. 27, 28. The Solicitor-General for Scotland(Asher, Q.C.) and Searle (with them Inderwick, Q.C.), submitted that although adultery on the 26th of January, 1882, was not

- absoluteness being the import of all of it. I am, therefore, indisposed now to regard it as an open question. That it has not hitherto been stated and judgment asked on it is sufficiently accounted for by the fact that no Scotch lawyer has regarded condonation for adultery as other than absolute by our law, exactly as it is by the Canon Law. But, if it is fitting that I should consider the reason and policy or public utility of our rule as we have certainly heretofore regarded it, I must say that I think it is well founded on these considerations. It is, in my judgment, unfitting on public or moral grounds that a man should knowingly take an adulterous wife back to his bed on any other footing than absolute forgiveness of the past. I have pointed out, and indeed this case illustrates, that her past transgressions, though condoned, may be used in evidence of a subsequent transgression as throwing light on the facts relied on to prove it, but beyond this I find no reason why her forgiven offences may be brought against her judicially. Subsequent adultery may well be presumed and so held proved against her by evidence which, but for her previous conduct, would have been properly thought insufficient. But if with all the aid that can legitimately be taken from her past conduct, the alleged subsequent adultery is not proved or disproved, I cannot assent to the proposition as reasonable or useful that she may nevertheless be divorced if the evidence which does not prove, or even disproves adultery, shews imprudence or levity of conduct on her part. To hold this would be to hold that a man who knowingly and forgivingly resumes cohabitation with an adulterous wife, may thereafter have her divorced for imprudence or levity of conduct, that being in law the condition of their cohabitation. This result is not varied or disguised by saying that she is not divorced for the levity but for the adultery, the forgiveness of which her levity has forfeited.

"I ought, perhaps, to observe that cruelty stands on quite another ground. Cruelty is cumulative, admitting of degrees and augmenting by addition, so that it may be condoned and even forgiven for a time and up to a certain point without any bar in sense or reason to bringing it forward when the continuance of it has rendered it no longer condonable.

"I am further of opinion that condonation of adultery cannot be made conditional by paction; and, indeed, the observations which I have made upon the subject of a legally-implied condition apply equally, and in some respects more strongly, to a conventional condition. There is no authority for admitting it, and all considerations of reason, policy, and utility are, I think, against it. When the case was formerly before us, I had occasion to consider and express my dissent from the Lord Ordinary's opinion, that an injured husband being free to forgive his wife or not, may attach such terms and conditions as he pleases to his forgiveness. In the note to the interlocutor now before us his Lordship repeats his opinion, with the qualification that the condition may not be 'absurd or fantastical.'

established beyond doubt, the evidence proved (1.) that Mr. Collins did attach a condition to his forgiveness of the previous acts of adultery; (2.) that the renewal of personal communications with

But a money payment is neither absurd nor fantastical; and I venture to ask whether a husband could adject that as a condition of condoning his wife's adultery, so that on failure of payment when the term came he should be permitted to revoke the condonation for breach of condition. The true view, I think, is, that forgiving and resuming cohabitation with a guilty wife is not a mere private affair, but one of some public concern, and so not subject to such pactional conditions and terms as people may lawfully make in their private personal dealings. The public law of marriage and of the marriage relation is concerned. The conventional condition hera alleged is that the defender 'should never again speak or write to the co-defender.' I think this was a very reasonable condition to adject, and one which ought to have affected the wife's conscience and feelings, whether expressed or not. That it was expressed does not, in my opinion, affect the legal position of the parties.

"On the third question, which, according to the views which I have expressed on the second, is merely hypothetical, I do not think it necessary to enter. The inclination of my opinion on it may possibly be inferred from my observations on the first.

"I ought, perhaps, to notice the fact which was a good deal relied on by the defender, that the pursuer continued to cohabit with her and treat her as his wife in the knowledge communicated to him by the detective whom he employed, that she had met the co-defender, and walked with him, and particularly in the knowledge of their walk together alone on the 26th of January, 1882. I agree with the Lord Ordinary that no condonation of adultery on the 26th of January, had such been proved, could thence have been inferred. But with respect to the impropriety or levity of conduct, or the meeting with and speaking to the co-defender relied on as forfeiting the condonation of adultery prior to the 27th of July, 1881, the matter may stand differently. I do not pursue this topic beyond observing that the pursuer's conduct in continuing his cohabitation with the defender, with the knowledge I have referred to, seems to shew that he at first regarded her behaviour in the same light as the Lord Ordinary has done after full investigation. It is certainly the most honourable explanation of his conduct, and therefore probably the true one.

LORD CRAIGHILL and LORD RUTHERFURD CLARK entirely concurred.

THE LORD JUSTICE CLERK said:- "In the result of Lord Young's opinion I entirely concur. I am of opinion, in the first place, that the alleged recent act of adultery has not been proved, and secondly, that the former adultery, which had been condoned, cannot again form the subject of an action of divorce, and that upon the ground that according to our law condonation is absolute. I should not have done more than express my concurrence in the proposed judgment, but for the fact that one or two matters are referred to in Lord Young's opinion on

Eayres by the respondent were not for the purpose she alleged, to obtain back her ring and correspondence, but for the criminal intention to resume immoral intercourse, which intention was only foiled through the knowledge that they were watched and the want of an opportunity. Then, on these facts arose the questions of law: whether every condonation of itself imports a condition, or, if not, whether it was competent to attach a condition to forgiveness; and if the condition here competently made, whether if a reasonable condition Mrs. Collins was guilty of such a breach as revived the condoned adultery? The judges in the Court below were all of opinion that condonation was absolute, but on different grounds. The Appellant submitted that forgiveness may be displaced on subsequent misconduct,

which I hold very strong views. First, although I hold that the alleged recent adultery has not been proved, I do not proceed on the considerations which have been adduced as palliating the behaviour of the defender and co-defender. That behaviour I look upon as most heartless on the part of both. It is, in my opinion, of no avail for the co-defender to say that he was unwilling to renew their intimacy, and the wife's explanation of her conduct did not impress me with its truth - on the contrary, I am impressed with its want of truth. The sole ground on which I proceed is that no act of adultery is proved to have taken place on the single occasion libelled. As to whether, according to the law of Scotland, condonation is or can be conditional, I agree with Lord Young. The views on this matter which have been accepted in the law of England are of recent adoption and of recent growth, and on sound juridical principle and social expediency, I am of opinion that the old Canon Law supplies us with the more reasonable rule. Another question was argued to us, and I merely advert to it that it may not be supposed that we are giving judgment upon it. I should not have been prepared to hold that cohabitation for two or three days, pending inquiry into the true state of the facts, would have excluded the husband, in such circumstances as those now before us, from founding on the misconduct of the wife as a revocation of the condonation, had we been prepared to adopt the English rule.

"With these explanations, I agree with your Lordships that we should adhere to the Lord Ordinary's judgment."

LORD YOUNG:- "I meant to bring this under your notice, but perhaps you will allow me to do it now - whether, consistently with the Lord Ordinary's judgment, and with that which will now be the judgment of the Court, it is fitting that there should be a judicial finding that the condoned acts of adultery are proved. I think it is better without that."

LORD JUSTICE CLERK:- "Yes, and with that variation we shall adhere."

which misconduct would not of itself be successful in a decree of adultery. No actual authority in the law of Scotland was founded on in the Court below, see Lord Young (1); but the English decisions upheld the appellant's contention. [LORD WATSON:- Does not the Scotch law proceed on the canon law unless displaced?] When any old custom was in doubt great weight was to be attached to the canon law, but not strictly followed: see Stair, Inst. bk. 1, tit. 4, ss. 6 to 16; Erskine, 1, 1, 42. In Lockyer v. Ferryman (2), a question of declarator of marriage, the Lord Justice-Clerk said, speaking of the Pontifical law: "I had thought it had been well settled, first, that it never was adopted in its integrity, even in Catholic times; secondly, that since the Reformation, while our consistorial law has been necessarily built on the broad lines of the canon law, we have adopted its principles and maxims only as we have adopted those of the civil law, - we have done so in so far as these appear to be just and equitable, and consonant to the general spirit of our jurisprudence, and no farther." They submitted that the relation of the canon law to Scotch law is the same as the relation of the canon law to English law. The quotations from text-writers in the Courts below did not apply. The Lord Ordinary said that in France the rule as laid down by Pothier, TraitŽ du Mariage, art. 520, was altered by the Code Civil. [LORD WATSON:- I cannot agree to that. LORD BLACKBURN:- The Code Civil reiterated it and reaffirmed it. EARL OF SELBORNE, L.C.:- I also think the canon law was brought in to aid the civil.] Even if the Court below were right in considering themselves bound by the text-writers to whom they refer, the question now coming up for decision for the first time, it is competent to this House to declare that the law of Scotland is in accordance with the law of England on the doctrine of condonation, and that by the law of both countries condonation is not absolute but conditional. There was nothing in the law of Scotland to prevent the English cases on this point having effect. The doctrine as enunciated in these cases was that condonation was forgiveness with an implied condition. In Durant v. Durant,

(1) Ante, p. 219.

(2) June 28, 1876. 3 Court Sess. Cas. 4th Series, at p. 894.

1825 (1), Sir John Nicholl said: "If nothing but clear proof of actual adultery will do away with condonation of adultery, the rule of revival becomes nearly useless, for the revival is unnecessary." See also Bramwell v. Bramwell (Jan. 26, 1831) (2) where the facts were extremely like this, and the remarks of Dr. Lushington were completely in the appellant's favour (3). In Palmer v. Palmer (May 24, 1860) (4) the wife petitioned for a divorce. It was held that subsequent adultery revived condoned cruelty. In Dent v. Dent (July 14, 1865) (5) held that condonation had the same effect that it had under the Ecclesiastical Court; and condoned adultery was held to be revived by subsequent cruelty. See Lord Penzance's directions to the jury (5). It has also been held that the wife's right to have the marriage dissolved on the ground of incestuous adultery which had been condoned may be revived by adultery which is not incestuous: Newsome v. Newsome (June 6, 1871) (6). That desertion for two years followed by cohabitation may be revived by subsequent adultery: Blandford v. Blandford (Feb. 10, 1883) (7). Rowley v. Rowley (1866)(8) is a case shewing how far the law will favour a contract not in degradation but in favour of marriage. In a suit for dissolution of marriage; both parties agreed to execute a deed of separation as a compromise. It was held, that misconduct by the husband after the agreement had not the effect of reviving the wife's remedies as in the case of condonation, and, consequently, that she was precluded from suing on any facts anterior to the compromise. But Lord Chelmsford's remarks were of importance, "The learned Judge Ordinary very properly rejected the supposed analogy between this case and a case of condonation. In the latter case there is a conditional forgiveness; here there was an absolute release" (9). See also Winscom v. Winscom and Plowden (Feb. 9, 1864) (10) for an opinion to the same effect. There Lord

(1) 1 Hagg. Ecc. R. at p. 761; see for Sir John Nicholl's full opinion on this point, post, p. 237.

(2) 3 Hagg. Ecc. Cas. 619, at pp. 629, 631.

(3) See note, ante, p. 214.

(4) 2 Sw. & Tr. 61.

(5) 34 L. J. (P. M. & A.) 118; 4 Swa. & Tr. at p. 106. See post, p. 240.

(6) Law Rep. 2 P. & D. 306.

(7) Law Rep. 8 P. D. 19.

(8) Law Rep. 1 H. L., Sc. 63.

(9) Ibid. at p. 68.

(10) 2 Sw. & Tr. 380.

Penzance said, "If the petitioner had taken a different course he might probably have entitled himself to relief from the Court, for it is alleged that his wife had, in 1853, been guilty of adultery with a person named Clark, which he had condoned. But condonation would hardly have been an answer to a suit founded on that adultery in the face of these familiarities with Lieutenant Plowden had he not condoned them also. It is not necessary to decide the point; but, as at present advised, I am of opinion that this latter misconduct would have enured to revive the original guilt, if that had been made out to the satisfaction of the Court" (1). [LORD BLACKBURN:- The English cases do not come to more than judicial dicta.] Cruelty in Scotland gives divorce mensa et thoro, and it was not doubted that in the law of Scotland condoned cruelty can be revived. There was nothing in reason or public utility that condonation should not be conditional. [EARL OF SELBORNE, L.C:- Suppose children born after the condoned adultery: is it right that the husband should be able to go back to the misconduct before their birth to get a divorce?] Nothing could be more reasonable than that a husband who found out the adultery of his wife should say "I will not cast you off, I am willing that cohabitation should be resumed; but if your conduct tends to the same conduct as before then I may go back to the old offence." The principle was the same in cases of adultery as of cruelty. It was the same condonation proceeding on repentance. No doubt Lord Fullerton, in Macfarlane v. Macfarlane (Feb. 7, 1849), said that there was no analogy between condonation of adultery and condonation of cruelty. But that doctrine they controverted. His Lordship then proceeds to say, "After a series of previous outrages a much slighter degree of violence will justify a demand for final separation" (2). See also Sinton v. Irvine (Feb. 15, 1833) (3) and Graham v. Graham (July 19, 1878 (4).

There was nothing in the appellant's contention as to revival of the condoned adultery against principle. A case of a husband forgiving his wife on the condition that she does not consort

(1) 3 Sw. & Tr. at p. 383.

(2) 11 Court Sess. Cas. 2nd Series, at p. 541.

(3) 11 Court Sess. Cas. 1st Series, 402.

(4) 5 Ibid. 4th Series, 1093.

again with her paramour, and the wife doing so, and thus causing the condoned adultery to revive, was not more against public policy than the case where cruelty subsequent to the condoned adultery revived that adultery.

Suppose an absolute condonation, then the appellant's wife, at least according to English law, may meet the paramour in the husband's own house, and yet he has no remedy. As the law is at present she can sue him for restitution of conjugal rights, and she can compel him to live with her. As to sleeping with the respondent from the 26th to the 29th of January, that was explained by the fact that no distinct act of adultery was reported by the detective, and the appellant was considering the meaning and consequence of these meetings. They submitted, the respondent having resumed intercourse with her paramour, that alone revived the previous condoned adultery. It would be the same if the intercourse such as proved here had been, not with her paramour but with another man. [Also quoted Bishop on Marriage, vol. ii. sect. 63; Watson v. Watson (November 18, 1874) (1).]

Sir F. Herschell, S.G., and J. P. B. Robertson, maintained for the respondent:-

There was no case in Scotch law where subsequent misconduct has revived condoned adultery. There must have been such a case if the appellant's contention is the law. But according to all the text-writers condonation in full knowledge implies a remissio injuri¾ as regards the adultery, and that this remissio is ex lege absolute, and cannot be made conditional by any arrangement between the parties. The Scotch law follows the canon law: see Lord Justice-Clerk Hope, p. 203, of Bell's case of legitimacy: "In all questions of marriage and legitimacy, the canon law is the law of Scotland." And Lord Meadowbank, p. 225: "There is no sort of doubt that the canon law is one of the fontes juris Scoti¾." There has never been any doubt in the law of Scotland on the absolute nature of condonation of adultery (2).

(1) 12 Scot. Law Rep. 78.

(2) See Balfour, Practicks, p. 99; Watson v. Cruikshank (July 15, 1681), Mor. Dic. 330; Leslie v. Nairn (1712), Lothian Prac. 164; Anonymous Case (Jan. 26, 1758), Brown Sup. vol. v. p.

The rule is well founded on public and moral grounds and on definite principles, and has obtained a distinct and settled development in the law of Scotland, and always has been so stated in text-writers: Erskine, 1, 6, 43, et seq. See cases of Macfarlane v. Macfarlane (Lord Fullerton) (1), Graham v. Graham(2), and Watson v. Watson (3).

Since the Reformation divorce ˆ vinculo has been allowed in Scotland for adultery (4). The Consistory Court, or Curia Christianitatis, was the direct successor of the Pope's bishop's Court (5), and administered, until abolished by the statute 1 Will. 4, c. 69, sect. 33 (1830), the marriage law. And the statutes of 1560 and 1567, which abolished the Pope's authority, import that where the canon law is not expressly rejected it is left standing (6). Scotch law stands historically on a basis wholly outside the English law. To cite, therefore, English cases of a date when divorce ˆ mensa et thoro was the only remedy the English Courts could grant, is to refer to decisions which are wholly inapplicable. But at the most, the English cases cited only laid down the doctrine that on a matrimonial offence being committed it revived the

863; Lockhart v. Henderson (Dec. 7, 1799), Mor. 341; Duncan v. Maitland (March 9, 1809), 15 Fac. Col. 246; Fairlie v. Fairlie (July 3, 1815), 6 Pat. Ap. C. 121.

(1) 11 Court Sess. Cas. 2nd Series, at p. 541.

(2) 5 Court Sess. Cas. 4th Series, 1093.

(3) 12 Scot. Law Rep. 78.

(4) There are one or two cases which seemed to imply that divorce ˆ vinculo was allowed in Scotland for adultery before the Reformation, but these cases on examination have proved to be cases of nullity or separation ˆ mensa et thoro. See Balfour's Practicks, pp. 97, 99; 1 t. c. 616; see also Act 1551, c. 19; Skene, p. 139; but see Lord Watson, post, p. 245. The first cases deciding that adultery was a lawful cause of divorce after the Reformation seem to be Johne Chalmer v. Agnes Lumisdene (Dec. 19, 1560); Jeane Lyell v. William Montgomerie (Jan. 21, 1561), 1 t. c. 1239.

(5) See Mackenzie's Inst. (1694 Ed.), pp. 3, 31; Lothian's Prac. 13; Fergusson, Cons. Law xv.

(6) 2 Thomson, Acts, p. 526; 3 Thomson, Acts, p. 14; and Skene's Acts, 1 Par James 6, Act 31. See also Forbes Inst. (1722, ed.), vol. i. p. 10. The canon law is owned to be our common law by the same statutes that establish the authority of the civil law in so far as our own municipal law has not receded from it, or it does not clash with sound religion, see Act 1540, parl. 6 James 5, Act 80; 1551, 5th parl. of Queen Mary, Act 22.

condoned acts: see the earlier cases of D'Aguilar v. D'Aguilar (1) and Worsley v. Worsley (2).

They submitted all the English decisions amounted to was, that previous condoned acts may be proved to throw light on the subsequent acts. [EARL OF SELBORNE, L.C.:- I do not agree with Lord Penzance that in law a condition is imported into the condonation (3).] But even if the English cases did apply, and were as stated by the appellant, the condition here, if there was one, was not broken, and it was not an offence which could be taken cognizance of by a Matrimonial Court. The evidence proved that the respondent did not meet Eayres with any wrong intention. On the contrary, it was to secure herself and her husband alike from dishonour and annoyance, which the possession of her letters by Eayres put it into Eayres' power to inflict upon them.

Also, the appellant continuing cohabitation from the 26th to the 29th with his wife in full knowledge of the whole circumstances on which he founds this action, must be held, according to ordinary rules of law, to have condoned them, and to be barred from founding on them, either as in themselves sufficient to claim divorce; or as constituting such conjugal misconduct as entitles him to revoke the pardon he had given in the previous summer.

The Solicitor-General for Scotland, in reply:-

If condonation can be qualified, surely this is a case where qualification should be inferred.

The House took time for consideration:-

Feb. 18. LORD BLACKBURN:-

The interlocutor appealed against does not pronounce any deliverance as to the custody of the children, but "reserves power to either party to make application to the Court with

(1) 1794, 1 Hagg. Ecc. Rep. 773.

(2) 1730, note to Durant v. Durant, 1 Hagg. Ecc. Rep. 734.

(3) See directions to jury on the question of condonation in Dent v. Dent (1865), 34 L. J. (P. M. & Ad.) 118; 4 Sw. & Tr. 106.

reference thereto in this process, in the event of the pursuer and defender not again cohabiting as husband and wife." Should such an application be made, it may be necessary to inquire further as to a fact, as to which the Lord Ordinary and the Lord Justice-Clerk are not agreed. If the object and intention with which the wife, as is admitted, made appointments against her husband's wish, and as she supposed, without his knowledge, was what the Lord Ordinary believes, her conduct was, I think, very reprehensible. If it was with the object and purpose which the Lord Justice-Clerk believes, it was very much more reprehensible. I do not think it proper now to express any opinion either one way or the other on a question not by this appeal brought before this House, and which may be raised hereafter.

It is admitted, both on the record and on the evidence, that there was repeated adultery, and it is not doubted that, by the law of Scotland, the injured spouse had a right to obtain a divorce for adultery. It is also admitted, both on the record and on the evidence, that the injured husband condoned that adultery, that is, with full knowledge of the previous acts of adultery, chose not to enforce his right to divorce his wife, but freely elected, as he had a right to do, to forgive her, and resumed conjugal intercourse, or rather never ceased to live with her and treat her as his wife; it is not doubted that, having done so, he could not after such condonation apply for a divorce against her, unless there was some subsequent misconduct by the wife; and as, in this case, from July, 1881, to the month of November, 1881, no fresh misconduct of any kind is imputed to her, there was a period of some months during which no action for a divorce could have been successfully maintained, the condonation being a complete bar to such an action.

It was alleged by the pursuer that there was fresh adultery committed on the 26th of January, 1882; and it was not doubted that if this had been proved the previous condonation of previous adultery would have been no bar to an action for a divorce for that fresh adultery. But all the judges in the Court below were of opinion that this fresh adultery, as laid, was not proved; and the counsel for the appellant, at your Lordships' bar, did not ask your Lordships to find that such fresh adultery was proved. But

it was contended that though adultery was not proved, yet that misconduct, subsequent to the condonation, was proved; and that, it was contended, was sufficient to prevent the condonation from being a bar. It was said that condonation was always conditional, and that when a release was subject to a condition resolutive, the condition being broken, the release was no longer operative. The interlocutor appealed against lays it down that by the law of Scotland a condonation (that is, I take it, a condonation of adultery such as I have already defined it) is by law absolute.

I have had the great advantage of perusing in print Lord Watson's opinion, which collects all that is to be found in the Scotch law authorities. I think that, as the law of Scotland is greatly founded on the old canon law, that canon law itself and the law of other countries, such as England, which have with more or less modification adopted the canon law, are not to be rejected as authorities as to the law of Scotland. I do not think them, however, of equal weight with the Scotch authorities. I would refer to what I said in this House in Mackonochie v. Penzance (1), where I restated what I thought had been the view of Lord Stowell in Dalrymple v. Dalrymple (2) as to the weight of authorities.

I think it is important to remember that there was a great alteration made in the sixteenth century in the Scotch law, not only as to the mode of administering the marriage law, but also in one very important point in its substance.

Before the Reformation, in Scotland, and I may say throughout Europe, the marriage tie was considered indissoluble. The Ecclesiastical Courts exercised and enforced by ecclesiastical censures a jurisdiction to compel a spouse, whether husband or wife, to live with and treat with matrimonial kindness his or her spouse; and also relieved an innocent spouse from any obligation to live with a spouse guilty of conduct such as to make it right so to relieve the innocent spouse. This was regulated by the canon law; but no conduct, however bad, relieved the innocent spouse from the matrimonial tie, or enabled him or her to marry again as if the guilty spouse were dead.

(1) 6 App. Cas. 446.

(2) 2 Hagg. Cons. Rep. 81.

But the law of Scotland was, by various Acts which are mentioned in Lord Watson's opinion, changed in this respect. There was a power given by process of law to obtain in a proper case a divorce so as to entitle the party obtaining it to live single, or marry as if the marriage had never been, or as if the other spouse were naturally dead. This could be done when the divorced spouse had committed adultery so as to forfeit all his or her rights, interest, or privileges as the lawful spouse of the pursuer.

I should, perhaps, mention that there was also a power introduced to get a dissolution of a marriage in case of wilful and persistent desertion, but that has no bearing on the question now before this House. With that exception, divorce ˆ vinculo was granted only in case of adultery, which was viewed by a strong religious party in the Scotch reformed clergy as a very great crime. The Act of 1563, c. 19, cited by Lord Watson, shews that the Scotch legislature was willing to go far in complying with this view; and it also shews that "the right of any party to pursue for divorcement for the crime of adultery before committed, conformable to the law" was established as part of the law of Scotland as early as 1563. There was no such power in England until an analogous power was created by the statute 20 & 21 Vict. c. 85, ss. 27-29, A.D. 1857.

All jurisdiction which (before the Reformation) was exercised by the Ecclesiastical Courts was, in Scotland, transferred to commissaries, who acted under the control of the Court of Session. If any matrimonial wrong other than adultery was done, for which it was thought right to retain a remedy, the lay Court gave the appropriate redress, whatever it might be; in general, the extent of redress would be much dependent on the gravity of the offence proved. In no case could it amount to divorce from the matrimonial tie. It seems now settled, that in case of adultery the injured spouse is not confined to the new remedy of divorce ˆ vinculo, but may sue as of old for separation.

In England, until the 20 & 21 Vict. c. 85, the remedy was still to be sought in the Ecclesiastical Courts, who gave the proper redress. In neither country, however great the amount of cruelty was with which one spouse (whether husband or wife) treated the

other, could either the lay Court in Scotland, or the Ecclesiastical Courts in England, dissolve the marriage and give leave to the maltreated spouse to marry. In Scotland, adultery was a sine qu‰ non; in England, even with adultery, there could not till the recent Act be such a divorce, and there never was such a power at all under the old canon law.

It is therefore to the law of Scotland that we must look to see what the right was, first created at about the time of the Reformation, and worked into its existing shape during the course of more than three centuries. I do not doubt that, as Lord Stair says (Institutes, book 1, title 1, s. 14), the canon law was so deeply rooted that, even in such a matter as this, in which the canon law was totally departed from, consideration was from the beginning given to the canon law, "as containing many equitable and profitable laws which, because of their weighty matter and their being once received, may more fitly be retained than rejected." Even now, if any principle to be found in the canon law has been worked out in modern English jurisprudence, or any foreign jurisprudence founded on the canon law, so as to come to an approved result, I think it is not to be too hastily assumed that the result has been rejected by the Scotch law. The same considerations which have led to its being retained and adopted in the English or foreign jurisprudence may shew that it ought to have been retained in Scotch law, and if it be not clear on the Scotch authorities that it has been before now rejected, it may be proper even now to adopt it. But where the course of Scotch precedent and authority is such as to shew that during centuries the Scotch law has rejected any such doctrine, it is not, I think, competent for this House to change that existing law, even if convinced that the change would be beneficial.

The doctrine of condonation was one of those which the law of Scotland did retain from the canon law. It is in itself obviously both just and politic that a spouse (whether male or female) who has become fully aware of the misconduct of the other spouse, and has elected to forgive it, should not be permitted to treat the other as a spouse and to live together and yet to reserve a power to fall back upon the by-gone forgiven offence as a

substantive ground for redress. I think it is clear, on principle, that such a condonation, accompanied by cohabitation, ought to have the effect of being a complete release and be a bar to any action in respect of that wrong which has been forgiven, and, therefore, that no action can be brought except in respect of some wrong either subsequent to that condoned, or, what comes to the same thing, not known to the condoning spouse, and neither intended to be, nor reasonably supposed by the forgiven spouse to be, included in the release. But it seems equally clear, on principle and authority, that there may be redress given in respect of such subsequent wrong.

The Lord Ordinary states the canon law to be, that not only did such a condonation amount to a complete bar to the right to seek for a remedy for the condoned wrong, which I think the authorities fully bear out, but that it "completely extinguished" the condoned offence, and that it could not be referred to for any purpose whatever. He treats it as if, at the time of the reconciliation, a new marriage had been entered into and the old offences not only forgiven and released, but entirely extinguished and as if they had never been. Though, as Maule, J., said in Mayor of Berwick v. Oswald (1), "it is beyond the power of the Courts, or of an Act of Parliament, to recall a day that has passed, or make a thing that has happened not have happened" (2), it is not beyond them to say that the condoning party shall be precluded from, for any purpose whatever, saying that they had ever been; and the Lord Ordinary thinks that the canon law has done this. This is a very artificial doctrine, not, I think, borne out by the passages which he quotes from the canonists, and the judges of the Second Division did not assent to this. They decided by their judgment of the 16th of May, 1882, that it was perfectly competent for the parties to bring before the Court the whole conduct of the spouse and her alleged paramour before condonation, to enable the Court to determine what was the extent of their misconduct after condonation. This judgment of the 16th of May, 1882, has not been brought up on appeal, but if it had been so brought up, I see no ground either on principle or authority for questioning it.

(1) 3 E. & B. 670.

(2) Hor. III., Carm. 29, 45.

That judgment did not determine what amount or kind of subsequent misconduct was necessary to justify a divorce ˆ vinculo. The interlocutor now appealed from determines that it must be subsequent adultery and no less.

I think, on principle, a reconciliation being entered into with full knowledge of the guilt and with the free deliberate intention to forgive it, where that reconciliation is followed up by cohabitation and living together as man and wife, the status of the couple ought to be the same and not more precarious than if there was a new marriage entered into; and, if so, then it would, I think, follow that where the redress sought is a divorce as if the erring spouse were dead, it must be necessary to prove adultery subsequent to the condonation which has the effect of a new marriage. I have had the very great advantage of reading the opinion of Lord Watson, and I think that the effect of the Scotch authorities he cites is that the status of a couple after condonation and cohabitation is the same as if there was then for the first time a marriage. I think the result is, as he says, that the authorities which he cites establishes that, for at least two centuries, the effect attributed by the law of Scotland to full condonation of adultery is that it affords an absolute bar to any action of divorce founded on the condoned acts of adultery. If there was proof of adultery after the condonation, that, like proof of adultery after a new marriage at the date of the condonation, would no doubt have supported the pursuer's case; but I am considering the case on the hypothesis that no actual adultery was proved subsequent to the condonation, which is admitted, in July, 1881.

The Lord Ordinary says:- "The doctrine of condonation of adultery is derived in Scotland from the canon law, which was the law administered in this country in this class of cases (except in so far as altered by statute) both before the Reformation and ever since. That law was simply this, that if one spouse condoned the adultery of another, the offence was entirely extinguished. It could not be referred to, notwithstanding the subsequent misconduct of the erring spouse. The case was the same as if a new marriage had been entered into." On this I have already remarked. He goes on:- "It was a matter entirely

within the power of the innocent spouse to condone the offence, or to insist for the remedy which the law allowed - separation or divorce; and being entirely within his right, the Lord Ordinary is of opinion that he was entitled to adject any reasonable condition to his condonation. He was not of course entitled to adject absurd or fantastical conditions. But the matter being for him to forgive or to refuse forgiveness, it does not seem to be unreasonable for him to stipulate that the condonation should only have effect on the condition that intercourse with the paramour should for ever cease." It is true that he finds as a fact that no such condition was by paction added to this quasi new marriage; but I cannot think a condition that the status of the condoned spouse should be more precarious than that of an ordinary spouse could be valid or effectual. I do not see how it could be consistent with the relation of married persons that there should be a power to divorce for any other cause but that one which the law allows, viz., adultery.

I am not satisfied, either on principle or on authority, that the law of condonation is the same with respect to all matrimonial offences as it is as to adultery. Adultery is a positive fact; either there is adultery or there is not. If there is, subject to any question that may be raised as to condonation, connivance, recrimination, or any other answer, there is an absolute right to a divorce.

Where the remedy which the law allows is not divorce, but at most separation, an action for a subsequent wrong which would give rise to the same remedy is clearly not barred by the previous forgiveness. And as the question whether there ought to be a separation in general depends upon the amount and degree of the offence proved, and not merely on its species, I do not see that there is any obvious reason why the previous conduct of the parties before the condonation should not be taken into account in order to determine what is the gravity of the offence proved. It seems to me not unreasonable to say that, if there has been forbearance and forgiveness, and after that the erring spouse commits any breach of duty (whether adultery or a less grave offence), the offence is more aggravated than when committed against a spouse who has not the additional claim on the duty

arising from such forbearance. That consideration cannot convert cruelty into adultery; nor even convert solicitation of chastity into adultery; but it might reasonably enough justify the spouse who had already forgiven so much in refusing to forgive more, and make it fit in an ecclesiastical judge who acted pro salute anim¾, to abandon all attempts to reconcile the parties, though the acts proved subsequent to the condonation were not in themselves (but for what had gone before) such as to render a separation necessary.

Where separation is sought for cruelty this is decided. In Macfarlane v. Macfarlane (1) the decision was that when a husband had repeatedly beaten and ill-used his wife, and she had fled from him, and been persuaded to return and live with him again as his wife, she was not, on his again ill-treating her, confined, when seeking for a separation, to those acts of cruelty which were subsequent to her not living with him. It is put on the ground that condonation effaced, as grounds of action, all previous breaches of the marriage law, or, in other words, was an absolute release to an action for divorce for adultery, but that, "in an action like the present, a return to domestic society, has no such effect. It is in its nature conditional, and dependent on the permanent forbearance from those acts of violence by the party who had formerly been guilty of them."

In Graham v. Graham (2), the Lord President says, "It is quite true that the wife condoned these acts of violence by coming back to him. But I am not sure that 'condone' is a very happy expression, because it leads one to think of the kind of condonation applicable to divorce for adultery. When an act of adultery has been condoned it is wiped out, and can never be referred to again, just as if it had never taken place; but it is not so in an action of separation on the ground of violence. When a wife comes into Court to complain that she cannot live with her husband because of acts of violence to her, and of a course of conduct that has placed her life or health in danger, she thereby opens up an inquiry into the whole history of her married life. Although acts of violence committed at an earlier period,

(1) 11 Court Sess. Cas. 2nd Series, 533, at p. 541.

(2) 5 Court Sess. Cas. 4th Series, at p. 1095.

and which have not prevented her from living with him, or going back to him after they have been separated, cannot be made the sole foundation of an action of separation, they may form the subject of investigation and proof, with a view to determine what is the true issue in the case, whether the wife can with safety to person and health live with him now."

This is a different, and I cannot but think a more solid ground than the fiction of a condition. It comes, however, to the same result.

No Scotch authority was cited for the appellant, who relied entirely on English decisions. Most of those cited were in the English Ecclesiastical Courts, which could not have at all considered the question whether it was right to make the status of married persons living together after condonation more precarious, more subject to be dissolved, than it was before; for, according to the law which the Ecclesiastical Courts of England administered, there could not be a divorce ˆ vinculo for any cause whatever.

It is true that in several cases which have been cited, the Court not only acted on the ground that where the cause for which a separation was sought was subsequent to condoned adultery, it was much graver than if there had not been such forgiven adultery, but have expressed as their reason for it that condonation was conditional, and that a breach of the condition revived the adultery. And in Durant v. Durant (1), Sir John Nicholl, after saying that it was unnecessary to decide upon the point, as he was satisfied that adultery subsequent to the established condonation was proved, expresses an opinion which is, no doubt, a weighty authority, though not a decision. He went very far in his language. He says: "If nothing but clear proof of actual adultery will do away with condonation of adultery, the rule of revival becomes nearly useless, for the revival is unnecessary. The only possible way in which the former adultery could bear would be in, possibly, inducing the Court to give some slight additional alimony: but it could not bear even in that way when the suit is brought by the husband; in which case, of course,

(1) 1 Hagg. Ecc. 733, at p. 761.

there would be no question of permanent alimony. It appears, therefore, hardly to be consistent with common sense, that clear proof of an actual fact of subsequent adultery should be necessary to remove the bar: something short would be sufficient, and it seemed almost admitted, though no direct authority was adduced in support of the position, that solicitation of chastity would remove the effect of condonation of adultery, but still it was maintained that it must be an 'injury ejusdem generis.' It is difficult to accede to the good sense even of that principle, or to suppose that the implied condition upon which the forgiveness takes place could be: 'You may treat me with every degree of insult and harshness - nay, with actual cruelty, and I bar myself from all remedy for your profligate adultery - only do not again commit adultery or anything tending to adultery:' the result of the argument is, that this must be supposed to be the condition implied when condonation of adultery takes place. The plainer reason and the good sense of the implied condition is, that 'you shall not only abstain from adultery, but shall in future treat me - in every respect treat me (to use the words of the law) "with conjugal kindness" - on this condition I will overlook the past injuries you have done me.' This principle, however, does not rest wholly on its own apparent good sense, but the Court has authority to support it. It has been held that cruelty will revive adultery" (1).

If this language is to be taken without qualification, and followed to its logical result, it would follow that, however long a spouse had, after condoned adultery, lived chastely and in full performance of all that a spouse should do, any lapse, however slight and venial in itself, from duty, revived the old adultery, and obliged, or at least enabled, the Court to decree a separation. This does not seem to me either just or expedient; I doubt if it was meant. No case in the Ecclesiastical Courts was cited in which the ground of complaint was not one which was, from its nature, capable of being aggravated by the previous, though condoned, adultery, and in most, if not all, it was so grave that it

(1) The cases of Worsley v. Worsley, 1 Hagg. Ecc. Cas. pp. 734, 764; and D'Aguilar v. D'Aguilar, 1 Cons. Rep. 134, are referred to.

might well be a ground for separation, even if not so aggravated, and in Dent v. Dent (1) to be noticed later, it was such cruelty as, without adultery, would have entitled the petitioner to a divorce ˆ mensa et thoro.

But, by the recent legislation, 20 & 21 Vict. c. 85, the powers of the Ecclesiastical Court are transferred to a lay Court, which, by sect. 22, in "proceedings other than proceedings to dissolve any marriage," is to act on the principles of the Ecclesiastical Courts. By sect. 27 a proceeding totally new in England is created. It shall be lawful for any husband to present a petition to the said Court, praying that his marriage may be dissolved, on the ground that his wife has since the celebration thereof been guilty of adultery; and it shall be lawful for any wife to present a petition to the said Court, praying that her marriage may be dissolved, on the ground that since the celebration thereof her husband has been guilty inter alia of adultery, coupled with such cruelty as without adultery would have entitled her to a divorce a mensa et thoro, or of adultery coupled with desertion, without reasonable excuse, for two years or upwards.

By the 29th and 30th sections upon any such petition for the dissolution of marriage, it shall be the duty of the Court to inquire whether the petitioner has been "in any manner accessory to or conniving at the adultery or has condoned the same," and this applies to husband and wife alike. There is no provision at all as to condonation of the cruelty or desertion which require to be coupled with the adultery in order to entitle the wife to a dissolution of the marriage: whether the law as to condonation is or is not by the canon law, as acted on in England, the same as to cruelty as to adultery, it is not made so by the recent statute.

In Palmer v. Palmer (2) the Judge Ordinary refused to strike out a paragraph in which the wife, to a plea of condonation, replied "that if she had condoned the respondent's cruelty, such condonation was cancelled, and her right to complain of such cruelty was revived by the respondent's subsequent adultery." And some of the observations reported to have been made, like

(1) 34 L. J. (P. M. & Ad.) 118; 4 Sw. & Tr. 105.

(2) 29 L. J. (P. M. & Ad.) 124; 2 Sw. & Tr. 61.

those of the Court in Durant v. Durant (1), already cited, are authorities for the doctrine of conditionality of all condonations, whether of adultery or of cruelty, though the decision did not require them.

In Dent v. Dent (2) the wife petitioned on account of adultery and cruelty. The husband pleaded condonation of the adultery. On the trial it was admitted that there had been adultery in 1861, that it had been condoned in 1861, the parties lived together and had had children. The Judge Ordinary, Lord Penzance, in summing up, is reported to have directed the jury that the rule of law was that all condonation was conditional, and the condition is, "In future you shall treat me as a husband ought to treat his wife; and if you hereafter break your matrimonial obligations, and are guilty of adultery or cruelty, the condoned offence is revived. The question for you is, whether there was any subsequent cruelty which did away with that pardoning or condonation. The pardoning having taken place in 1861, there is evidence that in 1864 the husband was guilty of cruelty. If you are satisfied of that fact, you will find that though the wife did pardon the husband's adultery there was subsequent cruelty committed which revived that adultery. The cruelty must have been, within the 27th section, 'such cruelty as, without adultery, would have entitled her to a divorce a mensa et thoro.'"

This is, I think, the only case reported in which the doctrine of revival has been made the ground on which a divorce ˆ vinculo has been granted, and the strong objection arising from its varying the status of married persons does not seem to have been brought to the notice of the learned judge.

In Blandford v. Blandford (3) there had been adultery and desertion; there had been a forgiveness of both that adultery and of the desertion, and a resumption of conjugal intercourse for a few months; after which the adultery with the same person was resumed; there was no condonation of that latter adultery, and the question was whether it could be coupled with the previous desertion, though that desertion had ceased before the

(1) 1 Hagg. Ecc. 733, at p. 761.

(2) 34 L. J. (P. M. & Ad.) 118; 4 Sw. & Tr. at p. 106.

(3) 8 P. D. 19.

adultery complained of was committed. This seems to me a very different question from that raised in Dent v. Dent (1). But it is to be observed that the Judge Ordinary, Sir James Hannen, seems to express approbation of the doctrine laid down in the dictum in Durant v. Durant (2).

But assuming it to be now established English law that any matrimonial offence, though forgiven, may be revived by any other matrimonial offence of which the Court take cognisance, it is a very modern law, and not, I think, so obviously just and expedient that we ought to infer, contrary to all the Scotch authorities for the last three centuries, that it either was or ought to have been introduced into the law of Scotland in the 16th century.

Lord Young said in this case: "But, if it is fitting that I should consider the reason and policy or public utility of our rule as we have certainly heretofore regarded it, I must say that I think it is well founded on these considerations. It is, in my judgment, unfitting on public or moral grounds that a man should knowingly take an adulterous wife back to his bed on any other footing than absolute forgiveness of the past. I have pointed out, and, indeed, this case illustrates, that her past transgressions, though condoned, may be used in evidence of a subsequent transgression as throwing light on the facts relied on to prove it, but beyond this I find no reason why her forgiven offences may be brought against her judicially. Subsequent adultery may well be presumed and so held proved against her by evidence which, but for her previous conduct, would have been properly thought insufficient. But if with all the aid that can legitimately be taken from her past conduct the alleged subsequent adultery is not proved, or is disproved, I cannot assent to the proposition as reasonable or useful that she may nevertheless be divorced if the evidence, which does not prove or even disproves adultery, shews imprudence or levity of conduct on her part. To hold this would be to hold that a man who knowingly and forgivingly resumes cohabitation with an adulterous wife may thereafter have her

(1) 34 L. J. (P. M. & Ad.) 118; 4 Sw. & Tr. 106.

(2) 1 Hagg. Ecc. 733, at p. 761.

divorced for imprudence or levity of conduct, that being in law the condition of their cohabitation. This result is not varied or disguised by saying that she is not divorced for the levity, but for the adultery, the forgiveness of which her levity has forfeited. I ought, perhaps, to observe that cruelty stands on quite another ground. Cruelty is cumulative, admitting of degrees and augmenting by addition, so that it may be condoned and even forgiven for a time and up to a certain point without any bar in sense or reason to bringing it forward when the continuance of it has rendered it no longer condonable."

This exactly expresses my own opinion. I will not attempt to improve upon the language in which it is expressed. This being so, I advise your Lordships to affirm the interlocutor appealed against, and to dismiss the appeal, and, as it is by a husband against his wife, with costs as between agent and client.

LORD WATSON:-

The appellant was married to the respondent, Mrs. Collins, on the 18th of June, 1872, and four children were born of the marriage prior to July, 1881. In the course of that month the respondent confessed to the appellant that she had, in the year 1881, been guilty of repeated acts of adultery with the other respondent, William Henry Eayres. The appellant forgave these offences, and continued to cohabit with his wife, at bed and board, until the 29th of January, 1882, when he withdrew from her society, and thenceforth ceased to have any intercourse with her. So far, the facts of the case are not in dispute.

The action of divorce, in which the present appeal is taken, was instituted by the appellant on the 4th of February, 1882. The only acts of adultery now relied on by the appellant are those of which he was fully informed by his wife in July, 1881, and which were then condoned by him; but the appellant alleges that he resumed conjugal intercourse, at that time, in pursuance of a verbal pardon, which was qualified by the express condition that his right to dissolve the marriage, in respect of her previous acts of adultery with Mr. Eayres, was to revive, in the event of her either speaking or writing to that person. He

also alleges that the respondent repeatedly violated that condition in the month of January, 1882, by correspondence with Mr. Eayres, and by personal interviews with him, in circumstances which, if insufficient to warrant the inference that they actually committed adultery, were, at least, inconsistent with the possibility of the respondent's having been actuated by any legitimate or chaste motive.

The respondent, on the other hand, asserts that no condition whatever was attached to his forgiveness of her matrimonial offences; and she likewise maintains that such a condition, adjected to a conventional pardon, becomes wholly inoperative, should the two parties thereafter live together as husband and wife. She also maintains that, in point of fact, her communications with Mr. Eayres, in January, 1882, however injudicious, were free from any taint of impurity, and consequently that she cannot be held to have violated the condition, - assuming it to be proved and also to be legally binding.

The respondent has been assoilzied from the conclusions of the action, in the first instance by the Lord Ordinary (Fraser), and thereafter, by the unanimous judgment of the Second Division.

The Inner House Judges, and the Lord Ordinary, were all of opinion that the condonation which the law infers from the resumption of conjugal intercourse by a husband or wife who is in the full knowledge of the other spouse's guilt, is absolute and unconditional, and that the acts of adultery condoned can never thereafter be made the grounds of an action of divorce. The Lord Ordinary was of opinion that the spouses may set aside the inference which the law derives from cohabitation, renewed in these circumstances, by stipulating that the condoning spouse shall have the right to have a divorce for the adultery condoned in the event of the offending spouse committing some act reasonably entitling him or her to that remedy, although that act should of itself afford no ground of divorce. His Lordship held that the condition alleged by the appellant was lawful, and was established by the proof; and he would have granted decree of divorce had he been of opinion that the subsequent communications between the respondent and Mr. Eayres were attributable to malus animus, such as a desire to renew their illicit intercourse.

His Lordship, however, came to the conclusion, upon the evidence led before him, that the sole object of the respondent was to get back from Mr. Eayres her letters, and a ring which she had given him, in order to prevent these being made the occasion of future trouble or scandal; and he accordingly held that the condition had not been, in substance, violated. The learned judges of the Second Division were unanimously of opinion that condonation of adultery (cohabitation following) cannot be made conditional by the parties; and they accordingly held that the character of the respondent's communications with Mr. Eayres in 1882 was immaterial unless these were such as to imply that the crime of adultery had been committed.

On behalf of the appellant these four propositions were maintained; (1) That by the law of Scotland, condonation is always subject to the implied condition that the right to found upon the condoned adultery revives whenever the offending spouse subsequently commits a similar offence, or acts of impropriety, although these do not amount to adultery; (2) That assuming no such condition to be implied at common law, it may be lawfully adjected, by mutual consent of the spouses, to remission of adultery, though followed by the renewal of conjugal intercourse; (3) That the appellant did attach the condition which he alleges to his forgiveness of the respondent's acts of adultery with Mr. Eayres prior to July, 1881; and (4), That the respondent in January, 1882, without going the length of actual adultery, did violate, not only the letter, but the spirit and substance of the condition.

The third and fourth of these propositions relate to matters of fact, which need not be considered, unless both or one or other of the antecedent propositions, which involve purely legal questions, be affirmed. Being of opinion that the legal propositions maintained by the appellant are not in accordance with the law of Scotland, I have not found it to be necessary to deal with these matters of fact.

I concur in the Lord Ordinary's observation that "the doctrine of condonation of adultery is derived in Scotland from the canon law;" and also in the statement made by Lord Young, "that no Scotch lawyer has ever regarded condonation for adultery as

other than absolute by our law, exactly as it is by the canon law." Scotch judges and Scotch lawyers have frequently expressed their belief that the marriage law of Scotland, both as regards the constitution and the dissolution of the nuptial tie, rests upon the basis of the canon law; and I shall endeavour to indicate the considerations which appear to me to justify that belief.

Before the Reformation all jurisdiction in matrimonial causes belonged to the Bishops' Courts, from which an appeal lay, not to the Civil Courts of Scotland, but to Rome. By a charter, dated the 8th of February, 1563 (1), Queen Mary, with the advice of the Lords of her Secret Council, in order to provide a remedy for the lapse of ecclesiastical jurisdiction, appointed four principal commissaries at Edinburgh, to have an original and privative jurisdiction in all marriage, divorce, and bastardy causes, subject to the review of the Court of Session only. In the year 1592, that appointment was ratified by the Scottish Parliament, 1592, c. 64 (2). The Act narrates that "the jurisdiction ecclesiasticall belonging to the officiallis of auld is and was divolvit in the commissaries chosin and nominat be our soverane Lord's dearest mother," and then proceeds to ratify and approve the institution of the commissaries, and the jurisdiction devolved upon them, and finally declares "the said jurisdictioun to be als ample of the same force and authoritie with the jurisdictioun of the saidis officialiis to quhome thai succeedit."

Considerable changes were made upon the matrimonial law previously administered in the Ecclesiastical Courts by the legislation of the Reformation period. Under the canon law, from the Council of Trent until the Reformation, the marriage tie was universally regarded as indissoluble, and separatio thori was the only remedy given for adultery in the Courts of the Church. The Act 1573, c. 55, established in Scotland the remedy of divorce ˆ vinculo for desertion. Divorce ˆ vinculo for adultery, which Lord Stair traces to the direct authority of Scripture (3), seems to have been previously adopted by the New Consistorial Courts, in compliance with legislation for the establishment of the

(1) Printed in Balfour's Practicks, 670.

(2) 3 Thomson's Acts, 574.

(3) Stair, Inst. 1, 4, 7.

reformed religion, such as is to be found in the well-known statutes of 1560 and 1567 (1). By these Acts the Scottish Parliament not only abolished the jurisdiction of the Pope and his bishops, but affirmed in general terms the authority of the Scriptures, and, inter alia, enacted that the sovereigns by their coronation oath should make faithful promise "to reule the pepill committit to their charge according to the will and command of God, revelit in his foirsaid Word, and according to the lawis and constitutionis ressaivit in this realme, nawyse repugnant to the said Word." The new remedy of divorce for adultery very early received statutory recognition. The Act, 1563, c. 74, which makes notour (2) adultery punishable by death, also declares that its Provisions shall in no wise prejudice any party to pursue for divorcement for the crime of adultery before committed, conforme to the law.

The commissaries had no rule to guide them in the administration of matrimonial suits, except the canon law, so far as it remained unaltered by express statute, or by legislative recognition of the reformed faith. Lord Stair, who entertained little respect either for those who framed or for those who, before the Reformation, administered the canon law, says (3): "So deep hath this canon law been rooted, that, even where the Pope's authority is rejected, yet consideration must be had to these laws, not only as those by which church benefices have been erected and ordered, but likewise as containing many equitable and profitable laws, which, because of their weighty matter and their being once received, may more fitly be retained than rejected." Bankton states (4) that the canon law has no authority in matters of faith; "but is much respected with us, in what relates to ecclesiastical rights established upon the Reformation, and in consistorial cases it still predomines." In saying that the commissaries looked for guidance to the canon law, I of course refer not merely to the corpus juris canonici, but also to the writings

(1) 2 Thomson's Acts, pp. 526 et seq.; and 3 Thomson's Acts, pp. 14 et seq.

(2) "Notour," open or manifest adultery, punished by a criminal trial: see Forbes Inst. (1722), vol. ii. p. 122.

(3) Stair, Inst. 1, 1, 14. See also Lanc. Inst. Jur. can. 2, 16, 11 et seq.

(4) Bankton, 1, 1, 42.

of eminent jurists in those countries where, after the Reformation, it had become lawful to grant divorce ˆ vinculo for adultery.

The appellant's counsel hardly ventured to dispute that, according to the canonists, the effect of condoning adultery was to extinguish the offence condoned, so that it could not be brought into judgment against the offender at any future time. The texts cited by the Lord Ordinary, in the opinion which accompanies his interlocutor of the 27th of June, 1882 (1), from jurists who have always been esteemed in Scotland of the highest authority as interpreters of the canon law, fully establish that point. According to these learned writers, acts of adultery condoned expressly, or impliedly, by resumption of conjugal intercourse, in the full knowledge of the spouse's guilt, cannot thereafter be set up as constituting a substantive matrimonial offence, entitling the spouse who forgave them to the remedy of divorce. At the same time these condoned acts, though incapable of being made the grounds of divorce, might be proved, in so far as they tended to throw light upon charges of adultery posterior to the condonation.

I do not doubt that it was within the power of the commisssaries, or of the Court of Session on appeal from them, to reject or modify any rule or doctrine of the canon law which appeared not to be in itself reasonable or expedient, although it might be neither contrary to express enactment, nor inconsistent with any rule of Scripture, as interpreted by those who held the reformed faith. And, if there were no authority to shew that the plea of condonation has received the same effect in the law of Scotland as it was understood by Voet and Sanchez to have in the canon law, I as little doubt that your Lordships would now have to determine, on general principles, whether their interpretation of the law ought to be followed, or whether the doctrine of condonation, in the law of Scotland, ought to be understood in the sense contended for by the appellant. In the absence of any evidence or authority to the contrary, I should still be of opinion that there was a strong ˆ priori probability that the doctrine received and acted on by the Consistorial Courts of Scotland was actually in accordance with the canon law as expounded by the

(1) Ante, p. 217.

jurists to whom I have referred. In Scotch books of law the authorities as to the legal effect of condoning adultery are not numerous, possibly because judges and counsel had the same understanding of the law; but such authority as is to be found there is either consistent with, or expressly confirms, the view taken by the learned judges of the Court below. I have been unable to find, in the text-writers and decisions, a single sentence which favours the contention of the appellant.

The only passage in Lord Stair's Institutions bearing upon this point (1) is as follows: "Adultery and desertion do not annul the marriage, but are just occasions upon which the persons injured may annul it, and be free: otherwise, if they please to continue, the marriage remains valid."

Bankton (2) thus states the law: "It is likewise a most relevant defence against an action of divorce for adultery, that the pursuer admitted the defender into conjugal society and embraces, after he or she knew of the criminal fact; it imports a full reconciliation, in the same manner as if the injured party had expressly forgiven the defender, or remitted the injury."

Mr. Erskine treats of condonation in terms somewhat similar. He explains (3) that adultery as well as wilful desertion are merely occasions or handles which may be laid hold of in order to obtain divorce: "But if the injured party choose to live on in a married state, the marriage continues in full force." Again, in treating of collusion (4), the same writer says: "Cohabitation by the injured party, after being in knowledge of acts of adultery committed by the other spouse, if it has not been constrained by force or menaces, imports a passing from or forgiveness of the prior injury, and is therefore sufficient to elide any action of divorce that may afterwards be pursued upon those injurious acts."

I shall only observe that the language of these learned authors is singularly ill chosen if they intended to express the idea that condoned acts of adultery merely lie dormant, until they again become grounds of divorce ˆ vinculo by reason of the guilty spouse committing some further act, whether amounting to or falling short of adultery. If that be the true legal result of

(1) Stair, Inst. 1, 4, 7.

(2) Bankton, 1, 5, 128.

(3) Ersk. Inst. 1, 6, 43.

(4) Ibid. 1, 6, 45.

condonation, it is surely inaccurate to say, with Lord Stair, that the marriage "remains valid," or, with Erskine, that it "continues in full force." In that case, the marriage would not continue in full force, after condonation, because it would thenceforth be liable to dissolution, in the event of certain acts being done by one of the spouses, which could not previously have been made the occasion of divorce.

There is a treatise on the Consistorial Law of Scotland, by James Fergusson, Advocate, who held the office of commissary in the beginning of this century, which I may here refer to as shewing what one of the judges of the Consistorial Court then understood to be the law which he had to administer. The author says (1): "Reconciliation after knowledge of infidelity has been sustained as a bar against founding on any previous act of infidelity on the action of divorce for adultery. But, on the contrary, as to maltreatment, from its continuous and cumulative nature, the rule is opposite, and it is justly held, that as the suffering party ought not to break up the conjugal society while there is hope of amendment, the merit of forbearance, until injuries shall become intolerable, will not then weaken, but, on the contrary, will strengthen the claim to redress by separation, ˆ mensa et thoro, and for separate alimony, supported by proof of the whole course of maltreatment."

I now pass from the text-writers to the consideration of those judicial decisions which appear to me to have a material bearing upon the main question before the House. First of all there is a report by Lord Monboddo (2) of an anonymous case decided by the Court of Session on appeal from the commissaries in the year 1710. A wife having instituted an action of divorce on account of adultery, the husband pleaded in defence that after the adultery was committed the pursuer cohabited with him, and had a child by him. It was answered for the pursuer, (1st) that she had no certainty of the adultery having been committed, though she had reasonable grounds of suspicion; (2nd) that her not separating from the defender was no proof of her having forgiven him; and (3rd) "supposing this to be an evidence of her

(1) Fergusson, 1829 ed. p. 195; see also p. 178.

(2) Jan. 26, 1758. Brown's Suppl. vol. v. p. 863.

being disposed to forgive, yet there was a fresh provocation alleged, viz., an attempt to poison her, which made it lawful for her revocare ad animum the first injury." The learned reporter adds, "but these answers the Lords did not sustain." An attempt upon the life of a spouse is a very serious matrimonial offence, for which, if proved, the law of Scotland has an appropriate remedy, yet the Court held that it could not have the effect of restoring the wife's right to have a divorce for adultery which she had previously condoned.

Then follows the case of Leslie v. Nairn decided by the commissaries in 1712, of which a brief report, taken from the record, is to be found at page 164 of Lothian's Practice and Styles of Consistorial Actions. In that case, a defender, charged with a series of adulterous acts, produced an express discharge by his wife in writing of all faults committed by him prior to the 15th of May, 1710. The lady objected that the remission was conditional, in case the defender should behave dutifully in time coming, which he had not done; but the commissaries sustained the process "only upon facts and qualifications committed since the 15th of May, the date of the discharge and reconciliation."

The next case in point is Lockhart v. Henderson (1). Jean Lockhart brought an action of divorce for adultery against her husband John Henderson, who pleaded recrimination in defence, and also raised a counter action of divorce. The reporter falls into a curious but obvious error in stating that the husband's defence and counter action were "founded entirely on alleged acts of guilt known to him before a reconciliation between the parties in November, 1793." It plainly appears from the proceedings as reported, and also from the session papers, that the husband charged his wife, in general terms, with a series of adulterous acts both before and after November, 1793, but the only acts specially condescended on were prior to that date. In the action at the wife's instance, the commissaries on the 15th of September, 1797, "sustained the defence founded on alleged acts of adultery committed by Jean Lockhart, the pursuer, whether prior or posterior to November, 1793, as sufficient, if

(1) Dec. 7, 1799. Mor. Dict., voce Adultery, Appendix 1.

proven, to elide the libel," and allowed a proof. The interlocutor pronounced, of the same date, in the counter action by the husband, was in these terms: "Find it proven by the letter in process, dated November, 1793, and by the pursuer's own admission, that he was reconciled to the defender and cohabited with her so late as the said date of November, 1793; and, in respect of such reconciliation and cohabitation, dismiss the libel, so far as founded upon acts of adultery which came to his knowledge prior to November, 1793; and, before farther answer, ordain the pursuer to give in a pointed and articulate condescendence of such acts of adultery committed by the defender posterior to November, 1793, as he still avers and is willing to prove." By these two judgments the commissaries in effect decided that, whilst the husband was entitled to found upon the acts of adultery which he had condoned, as raising a personal bar against his wife's demand for a divorce, he could not be allowed to state or prove them as grounds of divorce, notwithstanding his allegations that she had persevered in her adulterous conduct after condonation.

As John Henderson did not move in either of these causes, his wife, in the action at her instance, obtained circumduction against him; a judicial declaration that he had, by his default, forfeited his right to lead the proof allowed him, and she then led a proof in absence, upon consideration of which the commissaries granted her decree of divorce. The husband carried the case to the Court of Session, by bill of advocation, craving to be reponed against the decree, and the Lord Ordinary remitted to the commissaries to allow him a proof in defence, in terms of their interlocutor of the 15th of September, 1797. His wife thereupon appealed to the Court of Session against that interlocutor, and maintained, in the first place, that recrimination was no bar to a divorce, and, in the second place, that the proof ought, at all events, to be restricted to acts of adultery alleged to have been committed by her after November, 1793. The interlocutor of the 15th of September, 1797, in the counter action at the husband's instance, was not brought under review; but both spouses in their pleadings before the Court of Session in the suit at the wife's instance, conceded that it was well founded.

The husband, to whom it was adverse, admitted that the reconciliation had been rightly sustained in bar of prior adultery as a ground of divorce at his instance, but maintained that it had been properly refused effect in his wife's action, seeing that condonation did not remove the personal objection to an action raised by a party not herself innocent. "The Court," says the reporter, "were clearly of opinion that recrimination is no bar to divorce, though mutual guilt may affect patrimonial consesequences; that on this account it can be stated only in a counter action; and that reconciliation is a complete objection on both sides to a proof of prior guilt then known to the parties." Their Lordships according remitted to the commissaries to repel the defence of recrimination as a bar to divorce, and to proceed as they should see just.

The next case is that of Duncan v. Maitland (1), the circumstances of which were somewhat peculiar. The parties were married in 1782 at Dundee, where they continued to reside, but the husband, in the course of his business, was often absent for long periods in England. On one of these occasions, in 1795, when he was about to return to Dundee, he received information to the effect that his wife had committed adultery with a person of the name of Moncrieff. On his return home, he made some inquiries about the matter, but resumed cohabitation with his wife, and lived with her for nine consecutive months. After that the husband went to reside at Huddersfield, his wife remaining in Dundee; and in July, 1806 he raised an action of divorce, founded on the alleged acts of adultery with Moncrieff in 1793 and 1794, coupled with the allegation that she had ever since lived in one continued course of adultery, having for her paramours successively certain persons named, other than Moncrieff. The wife pleaded that the proof of adultery ought to be limited to the period subsequent to her cohabitation with the pursuer, in 1795; but the commissaries allowed a proof at large, and thereafter granted decree of divorce, holding that her adultery with Moncrieff was proved, and that her plea of condonation had not been established. The case was carried by appeal before the Lord Ordinary, by whom it was reported to the Second Division

(1) 9 March, 1809. Fac. Col. vol. xv. p. 246.

of the Court, then consisting of seven judges. Their Lordships were of opinion that the husband's admitted knowledge respecting the defender's guilt in 1795, his subsequent cohabitation, and the fact that there was no adequate reason given for his failing to institute proceedings for thirteen years afterwards, were together sufficient to sustain her plea of condonation, and accordingly they remitted to the commissaries "to alter their interlocutor, and to assoilzie the defender." The effect of that judgment would have been to acquit the defender not only of adultery with Moncrieff, which the commissaries had held to be proved, and which was sufficient (apart from condonation) to sustain a decree of divorce, but also of the subsequent acts of adultery libelled. Accordingly, their Lordships, in a reclaiming petition at the husband's instance, qualified their previous judgment by "reserving to him his right to be heard before the commissaries as to any acts of adultery committed by the defender after his reconciliation with her."

It is unnecessary, for the purposes of the present case, to consider whether in Duncan v. Maitland (1) it was rightly held that the husband had condoned his wife's guilt prior to 1795. The Courts of Scotland, in determining whether there has been remissio injuri¾, have always attached great weight to unexplained delay on the part of the injured spouse. In the case of A. B. and C. D. (2) the Court appears to me to have attached even greater significance than in Duncan v. Maitland (1), to mora, as a circumstance implying remission. The bearing which Duncan v. Maitland (1) has upon the present case consists in this, that the Court by their judgment distinctly affirmed the doctrine, that condonation is an absolute bar to an action of divorce founded upon the injuries condoned, and that allegation or proof of subsequent adulterous conduct does not give the injured spouse any right to revert to the acts of adultery which he has remitted.

In evidence of the fact that the doctrine applied in Duncan v. Maitland (1) has been understood by the Bench to be in strict accordance with the law and practice of the Scotch Consistorial Courts, I may refer to the dicta of Lord Fullerton in Macfarlane

(1) 9 March, 1809. Fac. Col. vol. xv. p. 246.

(2) 20 July, 1853. 15 Court Sess. Cas. 2nd Series, 976.

v. Macfarlane (1), in which an unsuccessful attempt was made by the defender, in an action for separation, to exclude evidence of certain acts of cruelty which, it was alleged, the pursuer had forgiven. His Lordship, with whom Lord Jeffrey concurred, said, "In short, this reconciliation seems to be treated as an act of condonation, like the renewal of intercourse, after knowledge of adultery, in a case of divorce. There is no analogy between the two cases. An act of condonation is understood in law to efface, as grounds of action, all the previous breaches of the marriage vow; and the party who afterwards complains must found that complaint exclusively on acts subsequent to the condonation. But in an action like the present, a return to domestic society, has no such effect. It is in its nature conditional, and dependent on the permanent forbearance from those acts of violence, by the party who had formerly been guilty of them." The Lord President (Lord Boyle) and Lord Mackenzie expressed themselves to the same effect. These dicta, although obiter in this sense, that the case was not one of divorce ˆ vinculo, were nevertheless very relevant to the point which the Court had to decide, seeing that the contention of the defender was in substance that forgiveness of cruelty ought to receive the same effect in a separation suit as condonation of adultery in an action for dissolving marriage. There are many similar expressions of judicial opinion by judges of eminence, including the present head of the Court of Session (vide Watson v. Watson (2)). But upon this part of the case it seems to me to be unnecessary to add to the unanimous and clear statements of the learned judges who decided it. These are at least sufficient to shew what has been rightly or wrongly understood by the Scottish Bench to be the retrospective effect of the plea of condonation in bar of an action of divorce for adultery.

I think it right to notice that in Fairlie v. Fairlie (3) there occur certain observations by Lord Eldon which seem to have an indirect bearing upon the question now before the House. The husband in that case, which was an action of divorce, libelled on various alleged acts of adultery by his wife in the years 1806,

(1) 7 Feb. 1849. 11 Court Sess. Cas. 2nd Series, 533, at p. 541.

(2) 12 Scot. L. R. 78.

(3) July 3, 1815. 6 Paton, App. Cas. 121, at p. 129.

1807, and 1808. The commissaries after a preliminary proof had been led by the defender with a view to establish condonation, decided against her, and allowed the pursuer a proof of the whole facts alleged in the libel; but the Court of Session altered their judgment and sustained the wife's plea in bar. An appeal having been taken in this House, the cause was remitted for further consideration. The Lord Chancellor (Lord Eldon), after pointing out the extreme nicety and difficulty of coming to the conclusion upon such evidence as had been adduced, that the husband must have known, or did believe in his wife's guilt on all the occasions libelled, went on to say: "I am quite satisfied that this case has not been sufficiently considered upon these nice points, and there is one particularly which may require a little further consideration; and that is this: supposing that it happens that a man has forgiven his wife the act of adultery committed at one time, it cannot be contended that that is to operate to all time thereafter that she pleases; and therefore the case is to be considered, not with reference to the conduct of the husband, as to one act of adultery alleged to have been committed in 1806, but the case, when put on the question of remissio injuri¾, must be considered with reference to the years 1806, 1807, and 1808. If he did remit the injury committed in 1806, no man will argue that he thereby gave her a license, as it were, to commit as many acts of adultery as she thought proper in the years 1807 and 1808; and, therefore, when, in a case of this sort, judges jump to the conclusion that the husband has remitted, and do not at all establish that he was acquainted with the facts, and meant to forgive that which he knew had taken place, as contradistinguished from his being induced to believe that the fact of adultery had not taken place; and when, again, the point to which I have last adverted, is considered, that the remissio injuri¾ cannot extend to a further period, I think it is fit the case should be further considered."

Lord Eldon was of opinion that the Court below had somewhat hastily inferred, from the evidence, that the husband had condoned all the acts of adultery libelled; and for their information and guidance, he indicates two other possible inferences, - the one that the conviction of his wife's guilt had never forced itself

upon the mind of the husband, and the other that he knew or believed that she was guilty in the year 1806, without having knowledge or belief of her adultery in the two succeeding years. In the latter case the noble Lord points out (what does not seem to admit of dispute) that the remission of adulterous acts committed in 1806 could not have the effect of condoning similar offences committed in 1807 and 1808; and he does so in terms which appear to me to imply that such remissio injuri¾, though it could not extend to a further period, would yet bar the appellant from founding on acts which he had knowingly forgiven. At all events the language of the noble Lord does not suggest that condonation of acts of adultery in 1806 would cease to be operative, in regard to these offences, if the husband should prove that in 1807 or 1808 his wife had committed adultery, or had conducted herself in an unseemly manner, without committing adultery.

I have dwelt, perhaps with unnecessary detail, upon the Scotch authorities, because they were ignored by the learned counsel for the appellant, who rested his case upon English decisions, and some of them were not referred to by the respondent's counsel. To my mind these authorities, which have not been trenched upon by any judgment of this House, do sufficiently establish that the effect attributed by the law of Scotland, for nearly two centuries past to full condonation, by which I mean remission with the knowledge of the acts forgiven, followed by cohabitation as man and wife, is that it affords an absolute bar to any action of divorce founded on the condoned acts of adultery.

The appellant, however, maintains that although at common law, there should be no implied condition making condonation revocable, in the event of the offending spouse being thereafter guilty of adulterous conduct or of impropriety other than actual adultery, the parties themselves may, nevertheless, adject a condition of that kind. To render such a condition valid, it was argued that it is only necessary to satisfy the Court that it was, in the circumstances in which the parties were placed, a reasonable condition, even though the acts, in respect of which the condoned adultery was to revive, should not per se constitute a matrimonial offence of which the law takes cognisance in an

ordinary divorce suit. To the appellant's argument upon this point I cannot assent. To give effect to it would, I venture to think, not only be to introduce a new element of uncertainty into the Scotch law of marriage, but to recognise a principle utterly inconsistent with that law.

If a husband, on coming to the knowledge that his wife had been guilty of adultery, were to say to her, "I shall not, in the meantime, cohabit with you, but I forgive you the past, upon the express condition that you never see or write to your paramour again," I do not, as at present advised, see any reason to suppose that, if the wife violated that condition, the husband would be precluded from having a divorce on the ground of her previous adultery. So long as the spouses continued to live apart, a remission in these qualified terms, would not in my opinion, constitute plena condonatio, according to the law of Scotland. But it is a very different matter, when the spouses resume cohabitation as husband and wife. In the old case of Watson v. Cruikshank (1), which is referred to by Mr. Erskine in a passage from which I have already quoted (2), the Lords found "that the wife's conversing with the husband as man and wife, after the deeds of adultery were particularly known to her, did infer the passing from divorce on these deeds;" and that doctrine has ever since been accepted as the law of Scotland. In considering this point the conclusive effect which the law of Scotland assigns to cohabitation as man and wife, not as constituting, but as evidencing ipsum matrimonium, must not be lost sight of; for to that source the rule laid down by our institutional writers, that the marriage continues "in full force" whenever cohabitation is renewed by a spouse who is in the knowledge of the other's adultery, appears to me to be traceable. If effect were given to such a condition as the appellant pleads the marriage would not continue "in full force." It would be liable to dissolution in the event of one of the spouses violating the condition by the commission of an act which the law does not recognise as a matrimonial offence, or as a ground of divorce ˆ vinculo.

It is, in my opinion, contrary to the policy of the matrimonial

(1) 15 July, 1681. Mor. Dict. 330.

(2) Ersk. Inst. 1, 6, 43, see ante, p. 248.

law that parties should be permitted to alter or vary, by private paction, the legal rules upon which the constitution or dissolution of marriage depends. No one would venture seriously to maintain that two persons contracting marriage could effectually stipulate that it was to be dissoluble for any cause, or upon any terms other than the law prescribes. And, if I am right in holding that it is a rule of the law of Scotland that a spouse who, in the full knowledge of past acts of adultery, renews conjugal intercourse with the offender, thereby loses for ever his right to sue for divorce in respect of these acts, upon what principle can the spouses be permitted of mutual consent to set aside that rule?

I have hitherto spoken of the law applicable to this case as I understand it to be settled by authority in the Courts of Scotland, and, in the view which I have taken, I should not feel myself entitled to alter that law, even if it could be shewn that the rule which has been followed by the Courts below is not the wisest or most expedient. But I think it right to say that I am not convinced either of the unwisdom or of the inexpediency of the rule. If your Lordships were to affirm the contention of the appellant, a woman might, for a long period of years subsequent to her conditional pardon, enjoy the position and privileges of a wife, might become the mother of a numerous family, and then, all at once be stripped of her matrimonial status, because, in some moment of folly or weakness she happened to violate the condition upon which that status had been made dependent.

Having come to the conclusion (for the reasons which I have endeavoured to explain) that the judgment of the Court below is in accordance with Scotch law, I shall not take it upon me to criticise, in detail, the English decisions which were referred to and founded on for the appellant. Undoubtedly there are to be found in these cases judicial dicta which seem to favour his contention. But it does not occur to me that those dicta can be regarded as of authority in a case like the present, which are referable to a time when the remedy of divorce ˆ vinculo could not be obtained in an English Court. And, since the unloosing of the bonds of matrimony, by judicial decree, has been sanctioned by statute, it has never, so far as I am aware, been made matter

of actual decision in England that a condoned offence can be founded on in a divorce suit, except in cases where the forgiven spouse was afterwards guilty of a substantive matrimonial offence, constituting, in itself, one of the grounds of divorce ˆ vinculo. Even supposing that the present question had never been settled in Scotland, and that in England decisions had gone the full length of these dicta, it would still have been necessary, in my opinion, to consider very carefully the material discrepancies which exist between the laws of the two countries affecting the rights of the innocent as in a question with the offending spouse, before introducing the English rule into the law of Scotland. That the differences between the two systems of law may give rise to very different considerations of policy, was forcibly illustrated by the argument of Mr. Searle, who pointed out to your Lordships certain deplorable consequences which, according to the law of England, might follow from the affirmance of the judgments under appeal, whereas it was very obvious that no such consequences could occur according to the law of Scotland.

I am accordingly of opinion that the interlocutor appealed from ought to be affirmed.

EARL OF SELBORNE, L.C.:-

As I entirely agree with the opinions which have been delivered in this case, I think it unnecessary to add anything beyond this; that I do not understand any English decision to have determined that in England married parties can make their condonation of a matrimonial offence revocable in the event of the non-performance of a condition conventionally agreed upon between themselves, which is not in law a sufficient reason for a decree of divorce or of dissolution of marriage.

Solicitors for appellant: Newman, Stretton, & Hilliard.

Agents for respondent: Grahames, Currey & Spens, for J. & J. Ross, W.S.