The southern enterprise. [volume] (Greenville, S.C.) 1854-1870, August 25, 1869, Image 1
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? *> A KEFLEX OF PQPOLAK EVENTS.
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" JQHN <? iUIUX PRO'R. ORRKNVW.LE. SOUTH CAROLINA. AUGUST ?5. MW>I* ? ?" *TJ?T' VOL. XVI?*0. 1 I
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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.
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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.