#### Marville Scroggins *v.*Lucretia Scroggins.

Fraud in the contract of marriage, to entitle a party to a divorce, must consist- of something more than mere concealment of defects — there must he such.misrepresentations as would deceive a person of ordinary prudence; and where the husband, at the marriage, might have known, that his intended wife was pregnant* and five months afterward she had a mulatto child: It was held, that he was not entitled to a divorce.

The construction of the act of 1S27, *c.*17, giving the Superior Courts exclusive jurisdiction in all cases of divorce, stated by Ruirix, J,

This was a petition for a divorce. The petitioner stated) that the marriage took place on the 18th of December, 1828 ; tliaf the parties “lived together in unin- *“*terrupted harmony for near five months, when thein- “ fidelity and fraud of the defendant was manifested by “ an occurrence which admitted of neither explanation *“*or palliation, and dissipated all hopes of happiness, *“*&c.; that on the 1st of May, 1829, the defendant be- *“*came the mother of a mulatto child.” The petitioner proceeded to negative tiie idea of condonation on his part, and prayed for a divorce, *a ■vinculo matrimonii.*

His Honor, Judge Martin, at Buncombe, on the Spring Circuit of 1831, dismissed the petition, thinking that the facts stated in it, if true, did not authorise the sentence prayed for. From this judgment, the plaintiff appealed.

J. *.Graham,*for the plaintiff

The petition seems to. have been dismissed in the court belo.w upon two grounds:

1st. Because the act of 1827, c. 19,. is to be construed with reference to theactof 1814, (Rcv.c. 869,) prescribing *the mode of proceeding,*for the causes of divorce defined *536in the latter, and not as authorising divorces *a vinculo matrimonii,*for causes other than *impotency*or *adultery.*

2d. Because, if this is not the true construction, still the intention of the legislature was not to confer upon the courts an unlimited discretion; but, that they should be governed in such cases, by the principles of ecclesiastical law’, and the law of revelation ; and the case presented by the petitioner, would have been remedied by neither.

It is submitted, upon the part of the petitioner, that the first reason assigned, is contrary to the whole current of legislation upon the subject. The act of 1814, authorises divorces for two causes only, and wms passed to free the legislature from the numerous applications *for those causes,*and to send the applicants to a tribunal where the facts could be investigated in the mode best calculated to elicit truth, at *the cost*of the parties. “To guard against the effect of sudden passion,” &c. (sec. 6,) various checks were provided. *Six months*must have elapsed, before the filing the petition; *ticelve months,*before obtaining a decree, (sec. 7,*) no person, wdio had not been *a citizen of the state*for three years, immediately previous to the institution of his suit, was entitled to the benefit of the act; the party cast, paid a tax of *£*10 to the state, (sec. 9;) which the petitioner gave security for, and finally, a decree when obtained, was not “valid until ratified by the General Assembly,” (sec. 4.) The act did not produce the desired effect, the time and the attention of the legislature were occupied by applicants whose cases were either not of the description provided for, or who were kept out of court by some of the restrictive provisions. The result is well known, and need not be stated here, and the legislature, to remedy the evil, proceeded to remove, one by one, the impediments which blocked up the avenue *to the courts,*that they might be enabled thereby, to close the door to all legislation upon the subject. They have done so, unless the courts choose to make, rather than expound the law.

Thus the act of 1818, (c. 968,) repeals the 4th section of the act of 1814, which required the decree of divorce *537*“*to bo ratified by the General Assembly.” The. act of 1824, Yc. 1248,) extended speedy justice to the poor and . * necessitous, by repealing the 6th section, imposing a tax of ¿610 on the party cast, and requiring a delay of twelve months to intervene bel ween filing the petition and the decree; and the act of 1827, (c. 19,) proceeding in the same spirit, by the first section, gives to the Superior Courts “ sole and original jurisdiction *in all cases*of application .for divorce,” If this were ambiguous, the second section would remove all doubt: — “All applications *for other causes,*than those specified in the act of 1814,” are to be subject to the rules and regulations provided in said act. The Superior Courts then,-have *sole andorigi-ginal jurisdiction in all cases of'divorce,*and this includes, in the. language of the act, “ *other causes than those specified in the act of*1814.”

Does the case of the petitioner present one of the “ other causes,” for divorce, in the contemplation of the legislature? The answer to this inquiry, requires an examination of the second reason relied on in the court below. It is unnecessary to recapitulate the facts stated in the petition, or to dwell upon the character of the transaction. The imagination can scarcely conceive.a case, which is calculated to awaken a larger share of sympathy in the human bosom. Can any one acquainted with the proceedings of the legislature, for the last twenty years, doubt as to the. course which that tribunal would pursue under such circumstances? And it is submitted, whether the courts, created by the legislature, as organs of legislative will upon this subject, may not look to their proceedings for precedents, with as much propriety as to the ecclesiastical or the ievitical law? — . Slavery, as it exists here, was unknown to .either. No case of equal enormity with the present, ever arose, or could have arisen for the consideration of their tribunals. There is, however, no difficulty in pronouncing what would have been the decision of the courts, in such a case, under either system of jurisprudence. By the lc-vitical law, as expressly recognized by our Saviour, a fraud, of the character disclosed in the petition, without *538*the*degrading distinction of *casi and color,*was not only sufficient cause foe divorce, but was punished with death. *('Deuteronomy XII,*13 to 22.)

If we resort to the common law, as administered by the ecclesiastical court for precedents, very slight causes have been held to warrant a divorce. “A marriage, procured by force or *fraud,*is void *ah initio,*and may be treated as null by every court in which its validity may be incidentally drawn in question.” (2 *Kent’s*Com. 66.) *“*The common law allowed divorces *a vinculo, causa metus, causa impot,entice,*and those were cases of a *fraudulent contract.” (Id.*67.)

“Divorces, *a viñado matrimonii,*(says Lord *Coke, 1 Inst.*235, *a.)*are these, *causa precontractus, causa meins, causa impolentice, sen frigiditatis, causa ajjinitatis. causa consanguinitatis,*&c. And I read in another record, *coram rege Termini Pasch.*(30 *E.*1.) *William Chad-worth’s case, that he*was divorced from his wife, for that he did carnally know her daughter before he manned the mother.” Either of these offences, in point of moral turpitude, or considered with regard to the degradation and misery in which the injured party is overwhelmed, presents a picture of comparative innocence and hann-lessness. The common law in England, would have afforded a remedy, if the facts had existed, and it is abhorrent from ail the better feelings of our nature, to suppose that it will not do so here.

*Dews,*for the defendant.

The act of 1827, gives to the Superior Courts “ sole and original jurisdiction in all cases of applications for divorce, whenever they may be satisfied upon due evidence presented, of the justice of such applicationbut at the same time affords no standard by which so unlimited a discretion is to be regulated or controlled. If the discretion of the courts is as unrestrained as the loose and general phraseology of the act would literally imply. then the law upon the subject would fluctuate with the varying opinions of different judges, counsel can neither advise with confidence, nor courts decide with *539certainty, the sanctity of the marriage compact will be impaired, and the morals of society most seriously endangered. The courts in their construction of this a A, must feel themselves compelled to rcgdlate their discretion by some known and pre-existing standard *;*the previous acts of Assembly enumerating certain causes for divorce, the ecclesiastical law of the spiritual courts of England, and the law of revelation, each afford a rule of decision clear, definite and safe. Adopting any or all of these as rules of decision, fraud in the marriage compact in relation to a matter existing at the time of the compact, constitutes no cause of divorce, *a vinculo matrimonii.*

Should it be considered by the court that the parties should be divorced when it is apparent they can no longer live together amicably, such a determination Would be liable to the objection of extreme vagueness and uncertainty ; the decision of this question upon a given state of facts would vary with-.the different characters and temperaments of judges, and would vary still more with the varieties and feelings, disposition and rank of different parties. Such a determination would also be liable to the additional, and forcible objection,- that the known existence of such a rule, would ho calculated to produce as a result, the very state of things for which it was designed as a remedy. .Breaches would be widened, and animosities inflamed in the domestic circles, which the mutual interest of the parties would have otherwise predisposed them to conciliate and reconcile.

If the courts do not feel themselves hound by any standard in the exercise of their discretion, then in in this case, the prayer of the petitioner does not exhibit. such a state of facts as should entitle him to a divorce ; a divorce is applied for in consequence of a *fraud*in the marriage *compact;*the concealment of a fact which if known would have prevented the engagement. The mere concealment of temper, of disposition of circumstances, of previous incontinence, and even the gross ami outrageons deception alleged in the petition, are *540all equally frauds *pro tantor*and differ from each other only in decree. If courts admit *fraud*as cause for ° *u*severing that union, civil to some purposes, but clothed with religious forms, and involving religious obligations, where or how can they fix the degree, or the limit?

A decision adverse to the prayer of the petitioner in a case presenting so.strong an appeal to public sympathy, will do more to counteract the demoralizing influence of the act of 1327, than a similar decision in a case less aggravated and imposing.

Ruffin, Judge.

The legislature in the act of 1814, authorises divorces in two cases ; the one, impotency at the time of the marriage and still continuing; the other, a separation by one party from the other, and living in a state of adultery. The act of 1827, c. 19. empowers the Superior Courts to divorce either from the bonds of matrimony, or from bed and board, whenever they may he satisfied of the justice of the application.

This act imposes a task of great difficulty on the courts, and *one,*perhaps less *agreeable than any*they can be called on to perform, that of acting upon a most important subject without a rule laid down for them by the legislature, or heretofore adopted by their predecessors. The jurisdiction is a new one to our courts, and we find no precedents in those adjudications from which we draw our learning upon other subjects. Where such a jurisdiction is created, and the Legislature marks out those boundaries within which, in their wisdom, they think it proper the courts should be confined, or to which they shall go, obedience is both an easy and a pleasing duty. It is when we are told to do what is right, but not told what they deem right, that we are lost in the mazes of discretion. I cannot suppose however that the discretion conferred is a mere personal one, whether wild or sober; but must from the nature of things, be confined to the cases for which provision was before made by Saw or for those of a like kind. This presumption is the stronger, when the sub*541ject is one upon which it is known that speculatists and moralists base much disputed, differing as to the policy of divorces and their influence upon the parties themselves, during their union, and after their separation ; and upon which law-givers, acting upon experience and disregarding theory, have generally been agreed in refusing them altogether, where the marriage was' lawful, except in the case of impotency. If the court could think that the duty to be performed was intended to be referred to the priyate opinions of the judges, it would be promptly, though reluctantly, executed ; for there is no member of the court who is not strongly impressed with the conviction, that divorces ought in no case to be allowed, but in that already mentioned, and near consanguinity. Wo know, that individuals may experience much misery by an unhappy connexion, where tempers are incompatible ; where there are disgusting personal defects; moral depravity ; mutual injuries, proceeding even to unfaithfulness and unchastity. We know too, that like consequences often follow from a mere change of affection; and that the growing indifference of the one, not only produces pain to the other, but irritates and provokes reproaches, until hatred takes the place of former regards, and the tie between them is severed, as far as the law will allow it. If the consequence of dissolving the union entirely, slopped with those parties, and conferred on them peace, instead of the pain they suffered, it were but cruel ty not to unloose the chain. But the knowledge that when this last stage of distress arrived, it would of itself bring relief, would precipitate its approach. Slight differences would grow into lasting dissentions, and a single act of unfaithfulness could easily be converted into habitual adultery. These evils are, in a great measure, avoided by the principle of our law, which declares the marriage contract to make a perfect union between the parties, so that they become one ; and, to carry it out, they ought to believe and feel that they are ever to remain so — •that absolute union is also indissoluble. That and that alone, can impress upon each, the necessity of mutual forbearance, of submitting to slight inconve-*542<1 contributing to the econcile ourselves to inences, overcoming antipathies ar ■enjoyments of each other. Ve i what is inevitable. Experience fnjids pain more tolerable than it was expected to be; and habit makes even fetters light. Exertion, when fcnc wn to be useless, is unassaycd, though the struggle might be violent, if by possibility it could be successful. A married couple thus restrained, may become, if not devoted in their affections, at least discreet partners, striving together for the common good, and steady f riends, ready to perform all offices of kindness required by the other — instead of the dissentient heads of a distracted family, driven by inflamed passions to a degree of madness, not to be satisfied with less than an entire separation, though it bring disgrace on themselves ard their offspring, and deprive the latter of the greatest c arthly advantage, the nurture and admonitions of a parent. For these reasons in most, and I believe, in all Christian countries, although the contract be regarded by the 1 aw merely as civ il, it is usually executed with some religious ceremonial; so as in a degree to impress upon it, in the eyes of the individuals themselves, a character of holiness — that it may appear to be entered into before a witness who cannot be deceived or forget, and therefore, to bo infrangible. Our restless dispositions, and capricious tastes and tempers, require these checks and restraints. Why shall they be removed? Why give way to those very propensities in our nature, which it is our interest to repress? Is it not wiser, better, kinder to the parties themselves and their issue,.to declare the engagement to be unsuscep-tible of modification, much less abrogation — to make their Union so intimate, so close, and so firm, that no discoveries of concealed defects, more than supervenient disease, depravity, dissoluteness or dissension could rend it asunder? Such being the case, the state would be the more discreetly entered into, and the intercourse through life be the more harmonious. Such considerations have produced the private con victions felt by those who are now the judges of the court. But they seem not to have made the same impressions on all; and it is our duty, *543notwithstanding the unlimited powers which we are commanded to exercise, to endeavor to ascertain, as well as we may, in what cases the legislature would, upon ascertained facts, authorise the parties to abandon their former choice, and make a new selection.

To the extent of the act of 1814, we consider the court constrained to go. And from the second section of the act of 1827, we suppose that we are not at liberty to stop-there, since that implies, that there are other cases besides those specified in that act, in which divorces seem to have been expected to be properly applied for, and consequently granted. Yet, from the preamble of the last statute, one might infer the contrary ; and that the great purpose of the legislature was to free itself from applications which ought not to be granted, but which,' from the hardship to the parties, and feeling in the members, were sometimes obtained *;*and to turn them over to tribunals which would do more impartial, or exact justice. Indeed, it is difficult for persons to put a just interpretation upon terms, conferring in themselves such boundless power. We cannot intend that the meaning was, that the courts should grant divorces, where, under like circumstances, the legislature had, or might be expected to grant them by statute; for the contrary is implied by commanding the action of courts, usually regulated by fixed rules. The court is then obliged to adopt the middle course, and prescribe to itself such principles as we think sound law-givers, who allow of divorces at all, would send as rescripts to a judiciary.

The case now before us, rests upon a matter existing at the time of the marriage. And it must be admitted to be as strong a case as can well be, if the petitioner acted properly, and with reasonable discretion or caution on his part. The principle of the common law upon the question of divorcing for matter existing at the time, is well established. If the marriage was not forbidden to both parties by their relationship, it was dissoluble at thcinstance of one for pre-contract and impotency. The former was of ecclesiastical origin, and no longer exists. The latter only remains, and is incorporated into our *544statute of 1814, at which time the legislature thought it unsafe to go farther. And since that time, although they allow the courts to go beyond that, they have been unwilling or unable to say how much farther. And the court is perhaps no less at a loss, nor less reluctant to proceed. The petitioner puts the case upon the ground of fraud. If it were a marriage to which he had been compelled by force, or in which one woman personated another, where indeed, there was no consent on his part, that would probably be cause for a divorce. But the fraud here consists in the other party not having the qualities and character he supposed her to have. It would be dangerous to lay down a rule of that sort. It is impossible to say where it would stop ; what were the qualities in a wife which a husband wished or expected, or had reason to expect. It cannot be known what defects he knew of and disregarded ; what were concealed, and what communicated. Treaties upon this subject, are generally conducted in secret, and the particular,? cannot be proved. It is moreover perfectly understood, that each appears, and will appear to the best advantage. It is not to be expected, that the parties will declare their own defects, as the seller of property would, and especially that they will publish their shame. Concealment is not a fraud in such a case — disclosure is not looked for — active misrepresentations and studied and effectual contrivances to deceive, are, at least, to be required, to give it that character; and the other party must appear not to have been voluntarily blind, but to have been the victim of a deception which would have beguiled a person of ordinary prudence. I know not how far the principle contended for, would extend. If it embrace a case of pregnancy, it will next claim that of incontinence ; it will be said, the husband was well acquainted with the female, and never suspected her, and has been deceived; then, that be was a stranger to her, smitten at first sight, and drawn, on the sudden, into a marriage with a prostitute; that he was young and inexperienced, hurried on by impetuous passion, or that he was in his dotage, and advantage taken of the lusts of his imagination, which *545were stronger than his understanding. From uncleanness, it may descend to the minor faults of temper, idleness, sluttishness, extravagance, coldness, or even to fortune inadequate to representations, or perhaps expectations. There is, in general, no safe rule, but this: that persons who marry, agree to take each other *as they are.*Whatever defects there may be, some must have been counted on, and wo cannot tell which. There are degrees in imperfection, as well as perfection *;*and the wife may prove much better than the husband expected ; so if she turn out worse, he must keep her because he chose her. It is not the policy of the law, that man or woman, who has once fallen, shall be condemned to celibacy, and doomed to incontinence. Yet such would he the effect of allowing this petition. The woman must disclose her misfortune and crime, or else the marriage will be declared *void;*but if she disclose it, she loses that marriage, and places it in the power of the suitor to' proclaim her shame,, and preclude her from any other alliance, and from reformation. The safer, more politic, and more humane principle is, to make it his interest to conceal the fault as well as hers, and by uniting their interests, to induce both to look forward to future proprieties, and be blind to what is behind. After the law upon this subject, has been settled for ages, and when the legislature has been unable to devise any alteration, founded on a general principle, worthy of their adoption, it would be too much to expect a court to pretend to more wisdom than the legislature and our fore-fathers united, and strike out new theories. And we cannot but say, that nothing could he more dangerous than to allow those who have agreed to take each other, in terms *for better, jfor 'worse,*to be permitted to say, that one of the parties is worse than was expected, and therefore, the contract ought to be no longer binding.

These are the general principles by which the court is constrained to limit and regulate the unrestrained liberty of rioting at large, to which it is left. The court is, nevertheless, entirely sensible of the peculiar character of this case, produced by the odious circumstance *546of color. It appeals powerfully to the prejudices, the *virtues*and vices *oí*our nature. The stigma in our state of society is so indelible, the degradation so absolute, and the abhorrence of the community against the offender, and contempt for the husband so marked and unextinguishablc, that the court has not been able, without a struggle, to follow those rules which their dispassionate judgment sanctions. But there are other circumstances in this case, which relieve us from all difficulty. The petitioner charges, that he was married on the 18th of Bocember 1828, and that the child was born on the 1st day of May, 1829 ; up to that time, he lived with his wife, and upon that event left her. He does not venture to swear, that lie believed her chaste, at the time of the marriage. It must be taken, that he did not; if he had, it would have been the first thing thought of, to aggravate his case. Suppose that we are to presume, that he means to admit a criminal conversation between themselves ; and that is the most favorable to him — what claims has he to j’clief, upon the ground of grosser incontinence than that in which he had participated? The legislature gives us in the act of 1814, an analogous rule for our government in this case. — ■ They declare that condonation shall destroy the right of divorce ; cither, because it evinces prior consent, or an indifference to the crime, which alike render him unworthy to ask the interposition of the law. Upon the same principle, if a man will marry a woman, whom he knows to be a prostitute, and she takes no affirmative means of establishing a conviction in his mind, that he alone, has had access to her, he can not complain if ho has been betrayed by a confidence as irrational, as it proves to be unfounded. No man in his senses can anticipate less. The fascinations and the total depravation of an unchaste woman have been proverbial, at least, since the days of Solomon. He who marries a wanton, knowing her true character, submits himself to the lowest degradation, and imposes on himself. No fraud can be said to be practised on him by mere silence and concealment of other aberrations. But if such bo not *547the fact in this case, then, that which is necessarily the state of it, leaves the petitioner as little merit. If he had not been iumsclt, guilty, ho liad the more reason to believe that others had. It is not alleged that the birth of the child was premature. Half the period of gestation liad expired at the marriage. His attention must have been attracted to the person of the woman he was about marrying-, and the long intimacy and courtship which he mentions, must have enabled him to detect her situation. Why did he marry her? It may be póssiblc, that he was deceived, and not by his own negligence, at that period. But it is impossible, that any art or device could have long prevented him from kuowing the truth, that is, as far as this, that she was pregnant. If not by him, why did he live with her? Shalt ho be heard to say, that he would, have been content, if the child, though not his own, had been white? We cannot but feel for his digrace; but it is rather sympathy with, him, as being one of the family of man, than as he is, individually. His disgrace is voluntarily incurred, and ho lias no elevation of sentiment or feeling above it. Wo think him criminally accessary to his own dishonor, in marrying a woman whom he knew to be lewd; or, by continuing his cohabitation, after he must have known it, up to the happening'of an event, by whicli the world acquired the same knowledge. He now asks to be freed from his bonds, because the infamy of his wife lias become notorious, though ho could reconcile himself, in secret,’ to the crime which makes her infamous. Such a prayer must be rejected, and the judgment of the Superior Court affirmed.

The full discussion thus entered into, has been deemed due to the legislature and the court itself, that the principles which will guide the court, may be plainly known. It is proper that they should be placed before the legislature, that if thought wrong by them, the court may be spared from running further into error, by having an authoritative guide to future action, in a rule prescribed definitely by the legislature itself.

Per Curiam. — Judgment appirmed.