, 1868-07-17
Judge Darwin on D,voro,,.


wins treaties on divorces We herewith
present extracts that embOdy the pith Of
his essay:
"Suppose q case wherein the defendant i,
in voluntary fault and SO is the plaintiff
Suppose, also, the plaintiffs fault 10 be mere.
y of the kind falling within the discretion
clause, and the discovering autagonisms tc
be clearly found to exist. Suppose, also, the
defendant to resist divorce and plead recrim
t0ation as sole reason therefor that is, he
claims that it is as much the fault of the
plaintiff as of himself, that they can nc
longer live together" Now if both have
found the duties of the relation too onerous
to bear, or have wilfully declined them; this
fact so far from being reason which the
defendant, also wrong-doer, should be heard
to urge against a separation, should be q
double reason for dissolving relation which
the experience Of both had found painful,
and it further seems to be better reason that
the defendant, if in wilful fault, should not
be allowed to resist divorce BY recrmination
than that plaintiff, also in fault, should not
be suffered to ask it. In such case, his lan>
guage in effect is |, the defendant. have
violated the law, but should not be pun.
ished, because you have also violated it. But
you should be punished for your violation
by having withheld from you divorce to
which my conduct has entitled you. Indeed,
In this as in all cases, successful recrimina
tion, while it is based upon the idea that
both parties are equally in guilt, yet ulti-
mates in rewarding one, the defendant, for
his fault, by granting his request and punish
ing the other, the plaintiff, for his fault, by
refusing his request, and then adds 10 the
injustice by making the flushed and success.
full defendant tie executor Of its vengeance
upon the defeated plaintiff, whom it commits
TO him to be chastised to his will
When the antagonism and misery of the
relation exists when parties can no logger
live together, the law provides for a separa.
ration, and it don't concern itself with the
reason so far as to let the reason stand for
prevention of the divorce. When the dis
severing antagonisms are found, then, so far
as the welfare of children are concerned,
there ought to be divorce so far as the
morals of society are concerned, in securing
the exercise of the sexual passions within le-
gal bounds, there ought to be divorce so
far as society is concerned, in exhibiting in>
tt~RoOss Of ooseeb;ai Felicity, ,hotu vughG TO
be divorce so far as society is concerned
in promoting peace aud good order, and the
happiness of its members, there ought to be
divorce; so far as it is concerned in dis
solving those marriages which have failed to
secure the object of that institution, there
ought to be divorce. And when all these
reasons exist in favor of a divorce, it would
be gross perverSion of the law to speculate
minutely upon the initial blame; to Curl
ously criticise the whole nuptial conduct of
both parties seeking to fud, if possible, that
the plaintiff was in fault, in order to punish
him if he were, by inhicting a refusal of his
demand, and that, too, Notwithstanding that
such refusal was not merely denial of jus>
tice and relegation of him to the whip Of
complete defeat of the objects of wedlock
to the punishment of children, and the dis
grace of society. A vinculum that is of the
coldest iron, and drags down without holding
together; which no longer rustles with inter-
twining roses, but clanks like felon's fetter,
every link of which is feshed and festered
with spousal sores, and bears heavy on the
hearts of children, should not be perpetusted
merely that a monument of sorrow and
shame, for mistaken purposes of punishment,
may be pedestalled before the public.
"Iudeed l might 60 further and say that,
when the parties have actually engaged in
gladiatorial encounter in court house, it
will nearly always follow that the nuptial
bond has been already broken beyond any
judicial remedy, and that the court can only
exercise its sad Office 10 administering such
sedatives as the painful nature Of the malady
will permit. If the plaintiff be the husband,
he has already divorced the wife in fact, and
it is supreme folly to disregard the experi>
ence which attests that such practical sepa>
rations do not respect the legal decision unless
it conforms to them. The husband may
abandon his suit, or, after success, again win
and wed the defendant but the action OF
the court does not in the least tend to restore
her to his arms. If the wife is the applicant,
the same experience utters the same vol e;
to which, it may be added, thas no real man
in this country will endure to be placed IN
the pittiabe position of asking the law to de-
liver bound to him spouse for his embraces.
If his graces have proved unequal to retain
ing her favor, he will not desire to punish,
for the reason that be has been unable 10
please.
Courts utter deal of bosh about their |
dDtv to sustain the sanctity of the marriage |
relation. The fact is, the court confers no
sanctity on it. The OdOr of sanctity is far
enough from all those which have been
trailed along through the prOfane purlieus
that conduct to court houses. Any such sa>
cred perfume as may still linger about the
broken thing, clings in despite OF courts.
The sanctity is all destroyed before the court
is invoked. If the court will lift its mOusing
nose from musty books and contemplate
things as they are, it will learn that the only
question left for it is, whether it will intro
duce into what the parties themselves nave
decreed, and, perhaps, into what the State
as we'll as nature, has also decreed, an aue'
Iteration or two"
TIE city of LeavenWorth, Kansas; on the
25th, ult., voted in fauor of taking SUBJ
sor;nt;on of S050 600 in the new bridge over |