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' "&>. t't U,t, jQ ?1 *>?- : **-' V tM -Ttil .<1 .'* , ! :.. I ? ;? t | ^,0 Tit'IiIM* Hft>?r> 'ill* * r tttlmRrtoi '"* ', * 'J'. '-*'. * . .' *T * iriMH ht? Im ^ f- x-~, u , : v ? <4. >1'/). I ? *> A KEFLEX OF PQPOLAK EVENTS. .-ggTMpafeggaa* .r r 71.'! , ".""'.l1 . r..i-W^-' !.- ". ^ ."T'lHi fSSi jg*gg "' i * . auiiWM?lJP " JQHN <? iUIUX PRO'R. ORRKNVW.LE. SOUTH CAROLINA. AUGUST ?5. MW>I* ? ?" *TJ?T' VOL. XVI?*0. 1 I i r'VT* ^ " ii ii w I i j i __ . l '* ' v . O. Jb . TU W IS JK?, ?!?>$& BDITOE. ^V,K. V/i.A , v BmoufrtOn Two DolttV# p*r tnnnn. -AW?Ai?eWk*T* inserted at the rates of M doMer per sijuaru ot twelve Nimon linu (IWt lllH typo) or law for the first insertion, fifty oen* daAfdf tierSH?ndWn<fithird insertion*, |W .tttPI-ll* OWh/fof fuhsequent to sort ions. Yearly pop tract* will bo made. M&2BFZZSrtttfi-Jfc'SlSB inserted tHl orderodont, and charged for. t tTnless ordered otherwise, Advertiscuiepts to the bsisfit of atgr eaa, are regarded as Advertisements. r%l ? A Mother's Ereniiu: Song.? t 'Three little pairs of shoos by tho hod, Three little lisping prayers *11 said, Three little prattling ton goes at rest, And baby asleep upon my breast. , Weary I am with the toils of tho day, So weary I ssarsa can kneel to pray; Bat I breathe my thoughts fas my Father's oar And know that ho lovingly stoops to bear. 1 - Yet sweet are the earse of rmj simple life? vuu 9*7 i-r1* ' ilrfrbo bat a mother can ItM* > aw eweetij.?boi#t my heart they grow, Vow yearningly, tenderly, day and night, I strain my eyes to keep them ia eight. My pretty flowers! woe, woe to the day The* should take your innooenoe ewey} O, God1 forbid thet my daughters fair Jfthoald brcetho the corrupter's poisoned sir. feed, Bertie, my bright, my beautiful boy? fits mother's plague end his mother's joy. With his restless, pattering little fleet, Travelling the house and tramping the street; "Will JW ever bring his mother to Shame, And tarnish his Aether's honored name f The hot tears are trickling feet as I. speak, And dropping on Tommy's tender cheek. Rush, hush my darling! Tie only a tsar, ^ToOr mother is weepiug, bat she Is near; Lay your dear, tiay band upon her breast. And soothe her, my sweet own, soothe her to rest 1 >iJ \ O, Qod I 1st a mother And rest in thee; I olhtg to thee, Lord, as my child clings to in a, F hie Id thou my darlings In ten d? rest love, Guide us all safe to the mansions shore. I - I The Law of Divorce"We lmve bfcon favored with a copy of the able opinion of Judge Orr delivered in tho case below stated, on the^important question of Divorce?Ei*. En1 kkpuisk. John 11- Walker vs. Mary J. Walker?In the Common Plea*? Equity tide, Greenville, May 2erm, 1809 ?Petition for Divorce?A Vinculo Matrimonii. ' The Petitioner, John II. Walker, ,filed hie petition on the 31st March, 1969, against Mary Jane Walker, his wife, praying u a divorce a vineulo matrimonii from the said Mary, and that she be permitted to resume her maiden name ot Mary J. Few," on tbo ground, Up ***<* tf*ir marriage, his wife became exceedingly unhappy ip her disposition, uuuind in lier treatment to him, used violent, abusive and mcdahing language towards him, and constantly manifested a determin ed malignity towards him." She uccumpuuiuu uer iuu^uugu wtiu blows ou several occasiots." ? 4'IIer hostility, violence and malignity to him increased, until at - length k beoamo intolerable, and they wilfully sepai ated about November, 1860, since which time they have lived apart.", Tbo parlies were duly married on the 31st J aly, 1850, and a deed Aa of separation executed by tbem the 80th January, 1861. The Demandant having foiloU to plead, answer or demur within the rule, the -petition waa taken pro confesso on thd'lTth May; I860. Testimony . was taken before the Clerk in supTOrt of the allegations of tbq dofig. ?d rwpoi tod to the Conrt hjoc 01 mo wunosecb says 01 jl>g fendant: u She had a cross, craoid disposition." "It was impossible Tor any reasonable, minded man to jbw* lived in l>eac? and happiness with her. Another witness says the 'Vis 6 high tempered woman ; hard to get along with; wanted her own way entirely"thinks It utterly impossible that they will ever live together again." Another witness says the Petitioner 44 treated bst kindly end ?t ettkrtmtol*; attempted to lire in peace with her; she boeame dissatisfied without cause; became ill and cross to hiin; at one time struck at him; she constantly got worse in ber disposition and actions towards him fell their separation.'* Before entering npon the consideration of tbe legal principles irfvolred in ibis case?an appfica tion torthe Court to mnko a decree J\ <4 divorce?which 1mm bean bare- a tofore uniformly refused by the ft Legislature and. Court* of this n Btate in all similar applications, it a is propertodetermine whether the s< Coorts oftheBtate are now invest- b ed with Jurisdiction to bear and p determine snch cases: , tl ' In the K ingdom of Great Britain, p the jurisdiction of rhatHfrtonlftl 11 questions belonged to tliB Ecclesi'as- t< tical Courts, ana divorces a vincu- p to matrimonii were restricted in tl England to causes which existed at tl the time the marria e was con- it traded, such as causa mctvs, ccuusp si imjMrieiUiah causa ajjinitatis, causa it conaanguini"atit, . cfrc.y and 8 though the marriage was unlawful, b A oon tnnn.i rvf mtlUlu r\4 ? ???- *1^ vi ?* WHtvuw VI IWVIIVJ VI UIMrmi^} *' was necessary to dissolve the bonds t< of raatrknooy. Marriage was regarded a sacra- b men* of the Church, and the Pope, <* exercising a controlling temporal c power over Europe, required that a the cognizance of sucn subjects 8 Should be confided exclusively in n the Edclfeaiastipal Courts, and that 1 divorces a vinculo should not bo 1 granted even by that Court Fur ? causes arrising subsequent to the marriage. The dispensation of the r head of the Church being the only r recognized authority to dissolvo a 1 marriage for causes arriving sub- * sequent to its contraction, tliough 1 tho temporal power of the Pope T has long since ceased in England, ' the original jurisdiction of the c Ecclesiastical Courts has not been > enlarged; they aro rcstriotcd to ? granting divorces a mensa et t/ioray 1 and the Parliament alone can grant * a divoree a vinculo for adultery 1 or any other cause arising after < the marriage. This, however, is 1 not the law in all the British Em- < pire. In Scotland, the Peforma- 1 tion exploded this rule of the t Romish Church, and divorces a 1 vinculo matrimonii for adultery < and wiltul or malicious desertion 1 have been uniformly granted. < For the sumo causes, divorces * a vinculo are granted by all the < States of the American Union, f regulated moat generally by stat- 1 ute, but having the authority ol 1 the common law as administered in a part of the British Empire; ( and for the first cauee, adult-, rv, the 1 positive authority of the Scrip- i tares?which furnish to all Chris- t tian nations the highest, purest and < salcst rules for social and moral ( action. Matthew, v. 32. t AH religions nnder the Federal 1 and State Constitutions are pro- j tected in their full and unrestrain- t ed exercise, hut none arc establish- j ed, and therefore the tenets or i canons of none should control the < determination of the question when, 1 how, and for what causes the hotids ] of matrimony should he dissolved. < It is a question to be solved by < considerations of moral, social and j political expediency and propriety, i When the responsible relation bos 1 been entered into, and one of the i parties utcrly tail, from base depravity or other grave canse to < fulfill its high and sacred duties, is , it not the dutv of the State to pro- i vide somo tribunal to adjudge the failure and order the dissolution of the relation. This tribunal should bo restricted in the exercise of ( such powers to causes of the ut- , most gravity only; those which , arc temporary or frivolous, ought , not to be listened to by ? Court. j *lt is the policy of the law, and i necessary to the purity and usefulness of the institution of mar- ( riagc, that those who enter into it, ( should regard it as a relation, per- { mancnt as their own lives ; its duration not depending upon the whim or caprice of cither, and only to be dissolved when tho improper conduct ot one of the par ties shall render the connection wholly intolerable or inconsistent with the happiness or safety of the other." Griffin vs. Griffin, 8 B. Munroe, 120. Judge Swift ?bseivcs: "The rendering of. the contract of mat rimony indissoluble, is running into the o|>pbeit? extreme from that of permitting divorces at tne pleasore of the parties. There are many persons who, on the idea that the marriage contract cannot be seated for any misconduct, will not behave with the propriety they would, it the continuauoe of the contract were dependent on their exertions to Vender them- > selves agreeable to the perrons with whom they are connected.? t is a groat hardship, tliat A per* )n? w.lm ha* been unfortunate in *iWUig ft matrinionial c umcction, iust W forever precluded from ny possibility of eatricating liim* olf from such a misfortune, and ?lmt btft Horn enjoying the1 heel lefts tires 6f life.';' This eonfclderftfdn,ltisteiufW1td<firtg to the Imp* juesB of the connection, must 'ighten jjersons from entering in> it. It is, therefore, the beet olicy, to admit a dissolution of lie contract, when it is evident I at the partie* Cannot derive from rthe benefits fr>r which it was ini tittfteif, and wheh instead of belg a source of the higliet pleaore and most enduring felicity, it CC/omca the source of the deepest . oe aud misery." 1 Swrft'n Sv? am, 191. Whether the jurisdiction should e extended in granting divbrces : vinculo matrimonii beyond the! ausca preexisting at marriage, nd to adultery, and malicioiiB deertion subsequent thereto, need ict now bo discussed. Up to this Hunt, at least, the judicial tribu tula ot most civilized countries ex-' ireise jurisdiction. In this State heretofore, mariage, from any canse and under ill circumstances, lias been obeoutely indissoluble ? the Courts nklng the ground that the Legisatnre had not invested them with >ower to declare a divorce, and uivo uniformly declined to exer:ise it. The Legislature has steadly refused to grant a dissolution if the marriage tie. There is, i ?erhaq>?, no other civifized conn-1 rv, either pvotcstant or catholic, hat has not made some provision, iithcr legislatively or judicially, br dissolving inarriago for adequate cause, except this State. In England, the Ecclesiastical Conrts {rant divorces a mensa et thoro, md the British Parliament a vinrulo matrimonii. In Scotland the narriage is dissolved for adultery >r malicious desertion, by the Courts, and in the States of the \nrerican Union, the Enmo powers i ire exercised by most of the Courts or causes already enumerated, and 'or others not mentioned. Tn Tlhftmn ro. Ttlimm* ltfpfVird'a 2. It. 197, Judge Nott, in a bill lied f<?r alimony, admitted that, u England, such cases belonged o the Ecclesiastical Courts, but ;onsidered that alimony was an exception in this State by the practice of the Court of Equity, and rom necessity, and helu that "the jurisdiction of the Court mnst be 'United to the allowing of ulimony uid to such orders as aro necessarily incident to the effectual execution of such a decree." Again lie says: " Although our Courts ot Equity have not the power to grant iivorcee, yet, as the two subjects? livorce and alimony?aro inseparable companions in England, we oust look to the causes of divorce :o ascertain the grounds on which ilimony will bo allowed." in rrarner vs. rrntner, 4 Iiess., 0. R. 34, in considering a bill for alimony, Cbas. DeSanssnre says: u And this, from the necessity of tJie case, and to redress an iniury not otherwise remediable?I allude to several cases which were decided in this Court some years since? expressly on the fft-ound that no other tribunal could give redress, and that it would be uuseemlv and highly mischievous if this Oourt did not interfere/' Chief Justice Dunkin, in t|ie case of Mattison vs. Mattison, 1 Btrobhnrt, C. R. 387, which was a bdl to declare a nullity of marriage, said " that there was no distinction in snch a bill and a bill for divorce; that the Legislature had not conferred any such jurisdiction on the Court, and that there was no inherent power iu Ii.? re ? ft r> rr _ IIIC \AIUI It IV/ JV. lit? adopt# the ruling pf Judge Nott, that tho allowance of alimony and incidental order# for carrying it into effect, waa properly cognizable by the Court of Equity from 44 practice and necessity," but could not be extended to divorce or declaring a marriage null and void. Iu all the oases in thia State, jurisdiction in alimony is taken by the Court from " necessity and the practice of the Oonrt." There was no 44practice " of the Oonrt in such a case until 44 necessity " induced its introduction, and therefore the only ground for assuming jurisdiction was 44 necessity." The Court of Equity iu thifc State takes jurisdiction in eases oil alimony witluntf- any leaUluAw* authorization when uvea caeca are cogwianble alone in ilia Eccloeiaetieal Courts of England, and denies to iteeh jurisdiction in cases of divorce, also cognisable alone m the Ecclesiastical Courts of England* because the Legislature of the State lias not specially conferred jurisdiction on that Court to hetfr and determine divorce cases I? Jnflge Nott says * divorce and alimon/ are inseparable companions in England," and yot assumed jurisdiction of the one Irom " necessity," and deities it to the other for want of legislative authority. Does not tlie " necessity " to exorcise the jnriedtction to annul or dissolve a degrading marriage, plead the Court as urgently as the "* necessity " to provide food, clothing and shelter for a helpless wife who lias been discarded hy au iinuerious or r.rui'l hnslmiid t Is not the 4t necessity " as great to exercise this jurisdiction of declaring a " nullity of marriage" where the revolting fact is exhibited of an incestuous marriage between father and daughter, mother and son, sister and brother? or to grant a d i vorce vinculo matrimonii to an injured and outraged wife, whose husband had introduced into his house and seated at his table asable parninour?who shared his bed a d received his attentions, while the unoffending wife received the Crumbs and suffered the i indignities and abuse heaped on her by the faithless husband and his degraded mistress I Such were substantially the facts in the case of Jelincan vs. Jolinean, 2 Dees., E. R. 46, and the Court, in the graphic language of Bishop on Divorce and Marriage, 288, refused " to sever t'ie liviug body front tho putrid carcass," and exi.misted the powers of the tribunal by decreeing, simply, that the husband should maintain the wife he had so shamelessly wronged ! Chancellor Kent, in an able opinion delivered in the case of Wightman vs. Wightman, 4 Johnston, C. R. 343, reaches a conclu sion exactly the reverse of that de cided by the Court in this State.? lie holds that no legislative authority is needed to confer jurisdiction on the Courts of Equity in divorce cases?that the power in the Conrt is inherent. llesa\'s: " All matrimonial and other causes of Ecclesiastical cognizance belonged. originally, to the temporal courts; and when the spiritual courts cease the cognizance of such cases, it would scentn, as of course, to revert back to lay tribunals. " Divorces a vinculo, says Lord Coke, are causa metus, causa impotent its, causa ajfinitatis, causa cousin guinitates^ disc. ? 'lbese causes, and that of lunacv, are not within tho Statute (N. V.] giving to this Court jurisdiction concerning divorces." Notwithstanding that fact, tho learned Chancellor savs, that the Court of Eqnity 4* is competent, not merely collaterally, but by a snit instituted directly and for the sole purI nose, to itronounce a divorce in suck cases." Whatever opinion may be en" tcrtained of tlie soundness of tlx judicial decisions, or the practic< of the Courts in this State, on di vorce heretofore, all doubt is novi removed, by the explicit Janguagt of the New Constitution. Artich IV., Section 15, prot-iefps thai "the Courts of Coram* Plea* shall have exclusive jurisdiction in all cases of divorce," Ac.; and in Sec. 16,44 it shall have jurisdic tion in all matters of Equity," Ac Article 14, Section 5, provide* that 44 divorces from the bonds ol matrimony shall not be allowec bnt by the judgment of a conrt, a* shall be prescribed by law." I has been suggested that this claus< restrains the courts from exercising the jurisdiction conferred ir the fourth article until the trenera assembly shall by statute presents tbe causes respectively, fur partia anil ontiro divorces and the rnlei and practice in the court to regn late tbe same. If * hereafter' had been inserted in the lattei clause of the section 40 as to rea< " as shall hereafter be prescribe* by law" such construction migh have been admissible but the lan guage used and properly used in 1 > constitution, which must defim 1 general propositions, embraces th< 1 existing laws as well as amend uientflj and modifications hereafter to be made by. the Legislature. The object of this section* when ascertained will remove all dofcbt as to its proper construct ion.~? The convention framing the Constitution, profiting by the experience ot other States; where Legislative divorce* -have been granted, and where caprice* favoritism and importunity controlled the enactment in disregard of all general principles of law and often times totally inconsistent with the previous acts of the stfme body, intended to prohibit all divorces by the Legislative?Confiding the power exclusively in the Courts nuicu wouiu oe ooitnu to decide such cases conformably to settled principles of law. Divorces are to be granted conformably to law and not by Legislative caprice. If tlie phraseology of the section had been "as now prescril>ed by law " it would have precluded the Legislature from amendments in the future, it *" as may hereafter be proscribed by law" it would have excluded the enforcement of the existing law by the courts and thereby deteated the grant ot jurisdiction contained in the fourth article. The word "law" in the section embraces ecclesiastical and common law as well as statute law. If the section should be construed to reter alone to law hereafter to be enacted by the Legislature it excludes all except statute law. The phraseology covers what was intended by the convention that the conrts in determining divorce cases should be governed by the existing common law and such statute laws as may hereafter be enacted. The phrase could not be constructed more perspicuously to embrace existing law and future enactments. Any other construction defeats the other provisions of the constitution giving present iurisdiction to the court of com mon pleas in all cases of divorce and is in palpable conflict with the well established rule of construction that remedial legislation must be liberally construed. 44 No statutes can be more manifestly remedial than those which authorize divorce; and, therefore, according to established principles, they should be liberally and equitably construed to give effect to the remedy." Bishop on marriage and divorce, 2t)U?Hie same liberal rule of construction applies to remedial provisions in the constitution as to statutes. . But it may l>o objected that although the constitution gives the ' Court of Common Pleas jurisdiction, it does not provide how it shall be exercised?whether in the , Common Pleas or on the Equity , side of the Common Pleas. It - might be a sufficient answer that , the Common Pleas Courts are in) vested with jurisdiction in all mati ters of Equity, and that the Equi ty side of the Court is the only forum whero such causes can be plead, and the various orders paesed to givo effect to its judgments. Hence the Equity aide of the Common Pleas ia the only ap . propriate tribunal to exercise the jurisdiction conferred. In Perry . va. Perry 2, page 601, Chancellor 5 Walworth aayB: 4i But whencvor 3 the legislature (or constitution) die. tinctly gives the right without ere7 ating or appointing any particu3 lar tribunal to administer too rem3 edy, it is fairly to be inferred that I they intended to vest that power } in tome of the existing tribunals , of the country." Here the con| stitution gives tho right of pres. ent jurisdiction, expressly prescribes the Court of Common 3 Pleas as the tribunal, and the inf forence is that the power ia vested 1 on tho Equity aide, because of the vunpidtiuii sjl viiu pi ui luiu Court, to give efficiency to all necessary decrees and orders in determining such cases. 1 conclude therefore, that the Kqnitv side of the Court of Common l'leas has jurisdiction of divorces a rnensa btthoro and a vinculo matrimonii. In the latter class, not only in . cases where tbo cai.se arose prior 1 to marriage as defined by Ix>rd r Coke, bat also in cases of adultery 1 and wilful permanent desertion in j cases arising subsequently. Thai t the proper practice is to proceed . by bill. That the allegations musl i be sustained by proof taken before a the clerk and reported to the a court. That to avoid collnsion or J connivance between the parties the allegation* of the bill are hot to bo taken at true on a pro conftoto order, or by the Consent of the parties, the prayer for an abtolnie or qualified divorce only beibg fcfittitable Upon proof of the Mittetibe of defined Htid establish* ed legal cause; It follows, hence, that t!>e pet'tloner in this ease, John H. Walker* has not set forlh any sufficient legal cause In his petition why his prayer for a divoroe a vinculo matrimonii should be granted ; and upon the proof submitted, it is not admissible to grant a divorce d tnetisa ei thord. I'lio proof establishes the ill temper* petulance and stubbornness of tue Defendant, and njK)it one occasion that she struck at hind; Was it sadli violence and legal Cruelty practiced by 4 woman towards a fnan that entitles him to claim even a qualified divorce a menta et thoro t 44 Cruelty is any Conduct in one of the married parties, which forms his ^.11 rvHsuifHuio apprehension that the contitiuanCe of the Cohabitation would be attended with bodily harm to the other." Evans vs. Evans, 4 English, E. It. 810. The learned judge (Lord Stowell) in the aaiue case any a: 44 What merely wounds the mental feelings is in few cases to be admitted where not" accompanied with bodily injury oithef actual or menaced.? Mere austerity of temper, petulance of manners, rudeness of language, a Want of civil attention and accommodation, even occasional sallies of passion, it they do not threaten bodily harm, do not amount to legal cruolty. They are j high moral offences in the marI riage state undoubtedly, not inno[ cent surely in any state of life, but still they are not that cruelty against which the law cab relieve. Under snch misconduct of either of the parties, for it may exist oil one siue as well as on the other, the suffering party mtiat bear in some degree the consequences of an injudieions eonfteetton-^must subdue by decont resistance or by prudent conciliation ; and if this cannot be done, both must suffer in silence." In Loekwood vs. Lock wood, 7 English, E. R. 114, it Was held that 44 tiiere must be either actual violence committed, attended with danger to life, limb, or health, or tUo-a V-t- - - ..VI u 111 uci TO a IcnHUIIHUIC appro'4 hcnsion of such violence." Again in Evans vs. Evans, Lord Stowelt 6ays: u In the older cases of this sort whieh 1 have had an opjxirte4 nity of looking into, I have observed that the danger of life, limb, of health, is usually inserted as the ground upon which the Court has proceeded to a separation. This doctrine has been repeatedly applied by the Court in the cases that have been decided. The Court has never been d? iven off this ground." Chancellor "Waltforfb, 111 Ferry vs. Perry, 1 Part., Ch. H. 6I?f says when the husband is complainant, uit is not sufficient to show a single act of violence ort her part towards him, or even A. series of such acts; so long as there is no reason to suppose that lie' will not be able to protect himself and family by a proper exercise of his marital power." Erort* these authorities, it is manifest that the Petitioner has not alleged, or proven rtty etifficent legal causer entitling him to a decree of sepftt ration againat his wife. Chancellor Kent lays down the rnle againt the application of the petitioner in broader terms than any of the foregoing authorities. He says in Van Vegliteu vs. Van Vcghten. 4 Johns, Cli. R. 501, that "the husband cannot file a bill against his wife for a divorce a rnetisa et thoroy on the ground of cruelty, desertion or improper conduct, and assigns as the reason therefor, t at " the common law has given to the husband sufficient power and control over the wife to protect himself* from such conduct." Applications to tlier Court for divorce should be by bill, and not . by petition, though the form in this I case, will not enter into the judg\ mcnt to be pronounced.. I adjudge that the petition b? * > dismissed at the costs of the Petitioner. JAMES L. OltU. I , [ 13th August, 1869.