Scottish Court of Session Decisions

The Lord Justice-Clerk, at advising, said—This is a peculiarly disagreeable case, both in its general nature and in the details of the evidence. But we are saved from the consideration of one part of it by the concession on the part of the defender that two acts of adultery are established against her. Her defence is confined to the special pleas of lenocinium and condonation. As regards the first plea, it is of great importance that we should understand exactly what the plea means, because it appears to me to have been the subject of a good deal of misconstruction. In the first place, I don't see that any light is to be derived from the cases which were cited from the law of England, where the plea of connivance has been stated and sustained in the consistorial courts of that country, in answer to suits of separation. That plea in the consistorial law of England is founded on the principle volenti non fit injuria, but the law of Scotland as to lenocinium is not founded upon that. I do not say that they don't resemble one another, and that practically they may attain the same end; but it is always unsafe to accept analogies of that kind. But, further, it is necessary to notice that it has been observed that the law as to lenocinium has changed, that under the old law it was necessary to establish that the husband had reaped gain through the adultery of his wife. That is a mistake. There is no trace of that in the old law. No doubt it is quite true that some writers mention that the argument had been maintained that lenocinium only holds when the husband has made quaestum de corpore uxoris. But they only mention it to condemn it. His Lordship then quoted from Sir George Mackenzie, remarking that the passage must be read by light of the fact that adultery in the old law was a crime, and that lenocinium was an answer to that. The significance of the answer was that the husband who prosecuted the wife for adultery was himself art and part in the crime. According to Sir George Mackenzie, lenocinium was punishable as a crime, and it was punishable as such in the Roman law under the lex Julia. His Lordship proceeded—That I conceive to be the law of Scotland now, and there never has been any variance. Bankton has been supposed to state an opinion in support of the proposition that the husband must make gain out of the adultery of the wife to constitute lenocinium. (His Lordship quoted from Bankton to show that he held the same opinion as Sir George Mackenzie.) The case of Lander in 1693 expresses the same opinion. Mackintosh v. Mackintosh is another authority to the same effect. These are all the authorities, and they are clear that it is not necessary to constitute the crime of lenocinium, or to ground the plea, that the husband should make gain from the adultery. It is not necessary to define lenocinium. For practical purposes in cases of this kind it is safer to keep to the general definition. But there is no doubt that when a husband is accessory to the commission of adultery, or participant in it, or the occasion of it directly by his conduct, he is obnoxious to the plea of: lenocinium. His Lordship proceeded to apply these principles to the evidence in the case, holding that the mere fact of the husband having taken his wife to a brothel and slept with her there, did not in presence of the explanation that he had taken her there for the purpose of verifying suspicions which he himself had in regard to her conduct, set up the plea. As to condonation, his Lordship said—It is necessary for a defender in an action of divorce setting up such a plea to prove (r) that the act of condonation was subsequent to the adultery of the wife, and (2) that the act of condonation was done in the knowledge or belief that the adultery had been committed. The evidence instructs neither of these propositions, and I am therefore of opinion that both the defences fail.