The Idaho world. [volume] (Idaho City, Idaho Territory) 1864-1918, 1866-04-21
THE Law or DIVORCE.

divorce and itsapplication in Idaho Territory
Having stated the facts in the case we will non
proceed TO consider the rules of law applicable tc
the facts, which will lead to the grounds of oul
decision.
First, What is extreme cruelty? The following
definition to this statute was given by DR.. Lush
ingtonin the celebrated case Of Evans vs.. Evans.
There must be either actual violence committe d
attended with danger to life, limb, or health, or
there must be a reasonable apprehension of such
violence"
Lord Stowell in 1870, in one of his mastery
produc tions and ever since regarded as the lead.
ing authority upon this subject, both in England
and America, said: what merely wounds the
mental feelings is in few cases to be admitted
when not accompanied with bodily injury, either
actual or menaced. Mere austerity of temper,
petulence of manners, rudeness of language, a
want of civil attention and accommodation, even
occasional sallies of passion, they do not threat
en- bodily harm, do not amount to legal cruelty;
they are high moral offenses in the marriage state
undoubtedly, not innocent surely in any state of
life, but still they are not that cruelty against
which the law can relieve. Under such miscon-
duct of either of the parties, for it may exist
one side as well as on the other, the suffering par
ty must bear in some degree the consequences
Of an iDjudicious connection; must subdue by dis
rect resistance or by prudent Cancellation; and if
this cannot be done, both must suffer in silence
And If it be complained that by this inactivity of
the courts much injustice may be suffered and
much misery produced, the answer is, that courts
of justice do not pretend to furnish cures for all
the miseries OF human life. They redress or pun>
nish gross violations of duty, but they go no
further; they cannot make men virtuous; and as
the happiness of the world depends upon virtue,
there may be much unhappiness in which human
laws cannot undertake to remove"
The Object of the suit for cruelty must be SUBJ
stantially to prevent apprehended harm. II the
conduct of one of the married parties is such as
khaP To fbE 1tucia
safety of the other or such as to create reason
able apprehension of bodily harm in the discharge
of marital duties the inter position of the court
would certainly become necessary, for in state
of personal danger no duties can be discharged.
The duty of self preservation takes place before
The duties Of marriage, but what fell short OF this
must be regarded with great caution. The causes
must be such as to show an imposibllity to dis
charge the duties of married life. We would
not undertake 10 limit the rule for divorces to
cares of personal danger to the body, IN dlstinc
ton from the mind. Our intellectual, moral and
social natures are as susceptible of pain and plea
sure and may be wounded and healed as readily
as the physical body, and the husband who ln>
tiicts long series Of studied veXatlons upon his
wife might cause greater anguish and cruelty than
a resort to personal violence We can readily con-
ceive how such course might estrange the aHec-
Ions OF devoted wife aid produce deeper grleI,
than the term cruelty implies, even under the con
stTuctl0n which We have given from LORD $40.
we'll. The application of this latter doctrine OF
cruelty, is to consider the effect it must produce
upon the life or health of the wife. ard fit has
been such as TO inJure either, then it may be re-
garded as legal cruelty.
Having lain down rules which should govern,
we now have to apply the principles to this case.
It appears that the wife, with some hesitancy
on her part Though unknown to her husband) af-
ter considerable preparation and large expense
on his part proceeded from California and joins
her husband here in IDAHO After living together
q bout two months, the husband becomes jealous
Of an imaginary paramour by the lntercepnon OF
an imaginary love letter, and accuses her of inf
deity. in harsh and indecent language. She re-
tnrts in loud and angry terms SO much 80 as to at
tract the attention of near neighbor: sues out
warrant of peace, and threatens him with bill of
divorce. The affair is finally hushed up; they
live together two weeks; friends CALL and all is
right About this time supper is gotten ZIP with
mutual good feeling and peace and pleasure still
prevail Soon after this for some cause, if any
did really exist. which the parties were unable to
show, and probably there was none except the
uneven temper and irritable dispositions of the
phrties, for which we cannot speak MOI tavorably
On one side than the other, they renewed their
old quarrel. and elimination and recrimination
passed on both sides. The husband makes some
and threats OF violence but with
out committing actual violence, concludes with
and low flung abuse. The evidence
IN the part Of the defense in regard to Hertsoch
holding improper correspondence with his wife
which no doubt created jealousy and was the real
cause of his abusive language was all myth.
His jealousy was without foundation, and on the
contrary the facts as disclosed exhonorate her
rem the faltherest apprehensions of blame
othing but weak and Jealous disposition would
ever imagine so much from so little cause, and
bis public exposition of his weakness may be a
7ery profitable lesson. The evidence in regard to
The i'll treatment of the plaintiff IN California, and
MS failing to provide for her. is quite as ground
less and imaginary on her part as was his jealousy.
Few men under the same circumstances, have been
more liberal or manifested better desire for tie
RAnts of their families and this disposition seems
70 continue with the defenant up to the present
line. tt is ore ofthose qualities which the moth
r should weigh with large credit, before con
senting to bastardiZe her own children. There is
10 doubt but the sympathy of the plaintiff with
ler brother in the difficulty which he has had with
her husband, and living near him and away from {
her husband, and her heretofore half determine
ton to procure bill of divorce has tended to es-
range her affections: and this latter circumstance
has encouraged her desire to procure this bill of
divorce. We're we to look upon this case discon- {
1ected from the circumstances which surround it,
Ind decide upon the naked difficulties which have
arisen between the plaintiff and defendant we
night say. though not without some hesitancy,
hat it had come within the rule.
sTheIe is another interest which we are bound to
represent. AS society, the public and the gov
eminent are interested in every marriage, SO are
they interested in every divorce. The children 8
are often more peculiarly interested than the par
les, and as they cannot protect themselves, the
government represented for this purpose by the
Judge, is bound to protect them. Marriage is not |
only for the benefit Of the parties themselves but