The Portland daily press., 1871-02-13

would be likely to convey to you clearer ide:
OF what is meant by the term "drunkard" o
the phrase "a common and habitual drunkard'
than the words themselves. The phrase com
mon and habitual drunkard' is to my minC
as expressive, expresses as clearly what tho
law means, what the law intends to convey AZ
any words that can be found. know OF nc
others that will make it any more clear to you
1t is as impossible to tell when the moderate
drinker becomes a drunkard as it is to define
precisely the time when boy becomes a man.
The moderate drinker drinks more and more
frequently until at last we say OF him and say
truly, "he has become drunkard, and to en-
phasize the idea, to make it more clear, we say
common and habtual drunkard. The mean
ing Is that he becomes drunk so frequently. SO
commonly, he is drunk so often that it has
become habit with him. But precisely the
NUMBER OF times he must get drunk, precisely
how tften he must get drunk the law does not
denne. The phrase itself, common and habit
ual drunkard is the best definition of what is
meant and perhaps one which you will as
clearly understand as any other form of eX-
preston that can be used. We have been cite
to case in California where the presiding
Judge instructed the jury in language which
man must be drunk during the entire business
hours or the time whom business was usually
transacted. But the Supreme Court in revis-
ing that instruction, that ruling, came to the
conclusion that it was too strong, that it would
be amply sufficient to constitute a common
and habitual drunkard if he was drunk most
Of the time usually devoted to business, the
principal part of the time. That is undoubt-
eddy true. That was undoubtedly correct.
But the court in that case did not say that a
man might not be properly deuominated a
common and habitual drunkard, though he
was not drunk half the time. or even quarter
Of the time. They simply decided the question
that was before them, and that was whether
the instruction that he must be drunk during
the whole of the business hours OF the day was
not Carrying the definition too far. They said
1t was; If be was drunk principal portion of
the time that would be sufficient. But they
did not define the minimum, for how small
portion of time . man could be drunk and
become common and habtual drunkard. I
must leave 1T to you with this explanation to
determine as matter of fact whether this man
IS proven to be common and habitual drunk
ard. II he got drunk SO often, so frequently,
SO commonly that it became habit with him
to get drunk, then he was a common and habit
ual drunkard; within the meaning of the law.
Whether he did or not get drunk so often, so
frequently, SO commonly, is question of fact
for you to determine from the evidence. ex-
press no opinion in relation to it.
The second scharge against him is cruelty.
When cruelty became distinct ground of d.
vorce by the law, it became necessary for the
court to define with accuracy what was meant
by the term cruelty or extreme cruelty. 1t
was settled that it ust be such violence, such
treatment generally as would endanger the life
or the health of the party abused or render life
lntolerable, too grievous to be borne; but mere
differences, slight abuse, slight ill-treatment,
such as is of daily or weekly occurrence in
many families was not such abuse as would
Justify a divorce.
As the law now stands, there being no speci-
ic cause for divorce, the matter being left to
the discretion of the tribunal called upon to
Hat 1T lAc~ a.
less important. l instruct you that if the
charges upon this point set out in the libel are
proved to your satisfaction; if the defendant
treated his wife in the manner stated in the Ii
bel, that will be sufficient cruelty; will consti-
tute cruelty sufficient to authorize a verdict in
favor of divorce if the other conditions OF the
law are made out, if in view of all the circum-
stances of the case you deem it reasonable and
proper conducive to domestic harmony and
consistent to the peace and morality OF society.
There are no specific causes now known to our
law save ooe, and that is unimportant in this
compals the jury TO find verdict in favor of a
divorce, and there are no causes which the
law pronounces insufficient for that purpose. I
believe it was the intention of the Legislature
to leave to the jury when they are called upon
to try a case of this description to leave it to
their sound judgment and discretion whether
or not the case is one which renders divorce
reasonable and proper, conducive to domestic
harmony and consistent with the peace and
morality of society, provided they find the al
legations in the libel true. In other words,
the precise propositions which are submitted
to the jury in every such cause are, first, are
the allegations contained the libel true? and if
true do they, in your judgment, render d.
vorce reasonable and proper, conducive to do
nestle harmony and consistent with the peace
and morality of society. You are first to de-
termine whether the charges made by the par
ty seeking the divorce are true. Ifyou find
they are not true that ends the ease; the YER
dict will be against divorce. 1t should be not
guilty; that ends it; but if you find they are
true the law does not require you absolutely to
unless you deem it reasonable and proper, CON-
ducive to domestic harmony and consistent
with the peace and morality of society.
You thus perceive precisely what your duty
is in this case; you are first to examine the
evidence carefully, weigh it in the light and
with the aid of the suggestions of the counsel
upon the one side and the other, giving to
their arguments such weight as you think they
are justly entitled to and then ask yourselves
what impression the evidence makes upon y our
minds; does it satisfy you of the truth of the
charges contained in the libel; if you answer
that negatively and say, we are not satisfied,
that will end your duty in the case and your
verdict SHOULD be for the defendant.
If you answer that inquiry aeirmatively and
say that we are satisfied that these charges are
"a
whether it is reasonable and proper that d.
vorce should be granted within the rules
have already stated to you. When you come
to the second inquiry you are to take the most
enlarged view of the case.. Yon are to take
into consideration all the circumstances that
surround these parties, their age, their rank
and station in life, the character of the diff
culties which have existed between them the
fact that they have children, and if divorce
is granted to the parties and the husband and
70 tod oh,
both; that one or the other must be separated
from the children. You will also take into ac-
count the conduct of both parties, one towards
the other, and IN that connection you NAV
take into account the recriminatory charges
made by the husband against the wife, and saw
how far, if to any extent, her misconduct NAV
have brought on the difficulties of which she
complains, how far she herself is in fault, all
the circumstances of the case, and then say in
view of them all, is it reasonable and proper
mote domestic harmony, will it be in accord
ance with the peace, and will it promote the
peace and harmony of society?
I When cases of this class are tried by the pre-
siding Judge, as most of them are, then it IS
his duty to exercise his sound discretion and
his Judgment in determining whether divorce
ought to be granted We have many and many
cases of that kind; have had before me many
cases as important, as difficult to determine as
this. Few have attracted as much public atten-
ton, few have been tried with the care, and I
may say, the ability that this case has been
tried with. But causes equally as important
in their consequences, equally distressing in
the misery they must entail upon one party or
both, have been tried by me, and have had
the duty of determining the question wheth-
er a divorce was reasonable and proper ip view
of all the circumstances that would follow
This cause is submitted to you; the parties have
the right to have that question determined by
Jury If they elect to do 50. They have so elected
and have relieved me from that duty, from all
responsiblityon that matter, and they have moro
than limited that it is not their wish that should
interfere with you on that point shall there.
fore submit it to you without expressing or in
timating any opinion may have on that mat
ter 1t is the right of the parties and believe
it is their wish that you shall answer that ques-
ton unembarrassed by any opinion that may
have on the matter, They have expressed to
you freely their own opinions as they had a
right to dc in their arguments, and you must
weigh the evidence, weigh the arguments,
weigh the reasons that have been urged upon
you, and then ask yourselves whether if you
find these charges true it is reasonable and
proper within the principles that I have stated
to you that divorce should be granted. If you
answer that in the affirmative there is no rule
of law that will prevent you from finding a
verdict in favor of divorce, and If you find
the charges untrue there is NO rule of law that
requires you to grant divorce. If you do not
find the charges true you cannot find a verdict
in favor of divorce; if YOU do fad them true
the law does not require you to find in favor Of
divorce unless in your judgment you find it
reasonable and proper.
A questioned law arises at this point which
I am requested to give you some instruction
upon, and that is, whether it is necessary that
the plaintiff should prove to your satisfaction
the truth of all the allegations contained in
the libel. The respondent contends that you