of their then meeting; most anxious concern about her health; and concludes, “With dearest and truest love, believe me, ever your own affectionate Pet,” a name under which he generally passed during their intercourse. But there was another mode of correspondence to which these parties resorted, the evidence of which it was much more difficult to destroy. They made use of advertisements in a newspaper to convey to one another their intentions and wishes and even their feelings; and the contents of these advertisements throw a very strong and most unfavourable light on the character of the meetings which they were intended to bring about, and which were frequently taking place contemporaneously with the publication of the advertisements. When a married woman does not hesitate to address the husband of another wife through the columns of a newspaper, in words such as the following:—“My darling, gratitude, thanks, and everlasting love I offer. You have cheered a sinking heart. Do as you say, but let me feel my hand in yours once more.” “I am indeed sad and lonely. Oh, that I could take you in my arms and clasp you to my heart.” “Dost ever imagine our next meeting—our leap unto out-stretched arms, beloved one! I dream of it night and day.” When such words are conveyed by any means from a married woman to a man who is not her husband, she has already committed adultery in her heart, and has gone far to justify the allegation of the old summons of divorce, that she “has cast off the fear of God, and, disregarding her matrimonial vows and engagements, has totally alienated her affection from her husband.” But if it be found that a woman with her passions thus inflamed, and her sense of modesty and decency so dulled and impaired, has ample opportunity of clandestine meetings with the man whom she thus recklessly loves, it would be to throw away all the lessons of experience, and shut out our knowledge of human nature and human frailty, if we should refuse to admit the irresistible inference that the sensual gratification which has been desired and longed for, and for the sake of which the woman has already divested herself of the most precious attribute of our moral nature, would certainly be welcomed and enjoyed on the first convenient opportunity. To all this must be added the kissing and embracing which was seen by witnesses to occur in some of their out-of-door meetings, when they believed themselves to be unseen, the passionate and sensual manner in which the defender spoke of Mr Grant to female friends, who, she trusted, would not betray her, besides a variety of other isolated and minute particulars, each of which taken by itself is unimportant, but all of which taken in combination afford the strongest corroboration of the justice of the inference suggested by the more direct evidence of the conduct and feelings of the parties. The result of the whole evidence, in my opinion, is to leave no room for doubt in any reasonable mind that the defender was guilty of adultery with Mr Grant on various occasions between April 1869 and January 1870, though it may not be possible to fix on particular occasions within that period when acts of adultery were certainly committed. It is to a case so established by strong circumstantial evidence that our old and well settled style of a decree of divorce is peculiarly suitable. The Lord Ordinary, following this usual and recognised style, “Finds facts, circumstances, and qualifications proved relevant to infer that the defender Jane Ann Fraser or Walker committed adultery with James Grant mentioned in the record and proof: Finds her guilty of adultery accordingly: Therefore divorces and separates,” &c.
In the action at the wife's instance against the husband, the evidence is of an entirely different character, and may be disposed of very shortly. The purpose is to prove that on certain specified and ascertained occasions the husband, Walker, defender of the second action, committed adultery with prostitutes in houses of bad fame in the towns of Aberdeen and Sheffield. It is proved by unimpeachable evidence that the defender had been in such houses in Aberdeen more than once. But the actual commission of any act of adultery rests on the testimony of the keepers of these houses and the prostitutes who frequent them. Such testimony requires to be very carefully and scrupulously weighed and examined; and, as might have been expected, a good deal of it will not bear the test of scrutiny. I am of opinion, however, that it is proved by evidence as satisfactory as could have been obtained in a case of this description that the defender (the husband) committed adultery on four different occasions in houses of ill-fame in Aberdeen. This is sufficient to lead to the conclusion that decree of divorce must be pronounced in this action also.
Lords Deas and Kinloch concurred.
Lord Ardmillan—Being of opinion that the guilt of both parties—the husband and the wife— is established by the proof, and concurring, as I do entirely in the view which your Lordship has taken, and in the observations which your Lordship has made, on the merits of these conjoined actions, in so far as regards the evidence of the adultery of both, I should simply express my concurrence, and say nothing in addition to what has been so clearly and so ably explained, were it not that, according to the judgment proposed, the result of the adultery of both spouses is to be the divorce of each from the other. The dissolution of the marriage tie is to be declared to be the consequence of the guilt of both parties. Both parties are proved guilty of breaking the most sacred of contracts, and violating the solemn obligations of marriage, yet each party is to be declared by judicial decree to be free from the marriage tie, and from the marriage obligations. This is a result which I do not think accordant with sound principles, either of law or of morals. Divorce on the head of adultery is, in point of principle, and ought to be in point of fact, a remedy for a wrong done to an injured and innocent husband, or to an injured and innocent wife. The foundation of the action is the criminal breach of solemn contract, and the party who has himself, or herself, broken that contract, ought not to be permitted to allege the breach of that contract by the other party as a ground for dissolution of marriage. The tie of marriage is too sacred to be susceptible of dissolution by mutual guilt. This was the view of marriage taken by the Scottish Reformers at the Reformation, and this also was the old law of Scotland. “Adultery,” says Lord Stair (b. i, t. 4, sect. 7), “does not annul the marriage, but is a just occasion on which the person injured may annul it, and be free.” No one but the injured spouse can sue for divorce. Erskine's opinion is given to the same effect (Ersk. Prin. i, 6, 23, and Ersk. Inst, i, 6, 43). Divorce is the redress which law gives to the injured, not, as I
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think, to the guilty. I am aware that it has been in recent times otherwise decided. To that decision I must bow, and in that decision I must, in this Court, respectfully acquiesce. It would be incandid in me to do less,—it would be presumptuous in me to do more—than express my regret that the old law has been departed from.
The following interlocutor was pronounced:—
“
Edinburgh, 23
d June 1871.—The Lords having resumed consideration of the reclaiming note for Mrs Jane Ann Fraser or Walker against Lord Ormidale's interlocutor of 28th July 1870, and heard counsel on the said reclaiming note, and also on the record and proof in the relative action of divorce reported by the Lord Ordinary, at the instance of the said Jane Ann Fraser or Walker against William Walker, her husband; recall the said interlocutor of 28th July 1870: Conjoin the said last mentioned action with this action, and in the conjoined actions, find facts, circumstances, and qualifications proved relevant to infer Jane Ann Fraser or Walker's guilt of adultery with James Grant, mentioned in the record and proof: Find her guilty of adultery accordingly; Therefore divorce and separate the said Jane Ann Fraser or Walker, defender, from the pursuer William Walker, his society, fellowship, and company in all time coming; Find also facts, circumstances, and qualifications proved relevant to infer William Walker guilty of adultery with Jeanie Kay, Mary M'Phail, Agnes Flood or Flann, and Jane Gordon Mackay or Worth, all mentioned in the record and proof; find him guilty of adultery accordingly: Therefore divorce and separate the said William Walker, defender, from the pursuer Jane Ann Fraser or Walker, her society, fellowship, and company in all time coming: Declare the said William Walker and Jane Ann Fraser or Walker respectively free of the marriage solemnized and completed between them, and that each of them may marry any free person in the same manner as he or she might have done had they never been married to each other, and decern; reserving in the meantime the effect of the above findings and decrees on the patrimonial rights of the parties respectively: Find the said Jane Ann Fraser entitled to the expenses hitherto incurred by her in each of the said actions now conjoined; allow an account of said expenses to be given in, and remit the same to the auditor to tax and report: Remit to the Lord Ordinary to dispose of the remaining conclusions of the summons at the instance of the said Jane Ann Fraser against the said William Walker.”