The Hawaiian gazette., 1878-02-13
WAIIAN GAZETTE
PUBLISHED AND EDITED BY
CRAWFORD MACDOWELL.
WEDNESDAY. FEB. I3. 1878.
Supreme Court Of the Hawaiian Is
lands. january Term. ISIS.
Harris q ]. Juad and McCullv J. J.

serted her committed adultery. and is now living |
with her paIamour.
The point is made that the Court is not, for !
this reason, justified in refusing the divorce.
The principle upon which recriminations are
entertained in Divorce Courts, "a grounds for
fusing divorces, is the general one that mau
cannot obtain redress for a wrong unless he is
himself free from blame in the matter; he must
come into court with clean hands, aud, hence
the court will not grant relief to a suitor who is
shown 10 have committed such offense as
would entitle the other party to divorce, it in-
noceDt
Lord Stowell says that the doctrine of recriml-
nation has Its foundation in reason aud proprlety.
at would be hard il man could complain OF the
breach of contract which he has violated if
be could complain of an injury when ne is open
to charge of the same nature" Where both
are in fault the parties may live together and
| find sources of mutual forgiveness IN the humi
| ation of mutual guilt" etc.
| In Scotland, the Courts refuse to recognize the
| doctrine, except as the foundation for II cross
action. Bishop Wharfage and Divorce, $500
says, In this conflict of opinion abroad, in re-
spect even to the policy of the doctrine itself it
is not wonderful that the American judges should
not have been entirely harmonious in defining
the limitations and extent of 1t. in its applica-
ton to the Jurisprudence of the country"
The law. as it stood in the Civil Code, enact
ed that wIllfu aud continued desertion. without
cause, for three successive years, will be pre-
sumptive evidence of adultery. In this pre-
sumption we cannot concur. 1t farther enacted
that the Courts might deny divorce, q" although
the fact of adultery or other ofense amounting
thereto should be established, when it shall be
proved that the complainant has also been g1ilty
of adultery or other offense amounting thereto,
as would have entitled the defendant, if innocent,
to divorce"
The law of 1870 whilst establishing several
more grounds of divorce than that in the Civil
Code repealed the law of the Civil Code en-
tirely, and whilst enacting that no divorce for
the cause of adultery should be granted, = when
there is reasonable canse to believe that the H.
bellant has been guilty of any act which would
entitle the defendant, if innocent" to a divorce,
is silent with regard to the defense which may
be set up to the other grounds OF divorce which
grounds are-desertion for term of three years;
imprisonment for seven years more eprosy
when declared incapable of cure extreme cruel
ty habitual intemperance; and neglect or re-
fnsal to provide for the maintenance of wife.
So that for these last causes the Court is left
without any special direction on the part of the
Legislature. to adjudicate by the light of reason,
experience and authority.
1t has been seen that the Legislature has
adopted the principle of recrimination and if
recrmnation is held to be a good defense. even
where adultery is charged, there would seem to
be no reason why the same replication may not
be eflec.ual when defendant is charged with
lesser offense.
Now the course of reasoning has generally
been this, that if both parties were to commence
proceedings at the same time, and it should be
made to appear that each of them would be en-
titled to q divorce that is to say, that each
| party hNd committed acts which would eutite
the other TO a divorce, IOero could not be two
concurrent DEGREES in favor of both parties.
Then how can the Court pronounce in favor of
one party when to pronounce in favor of the
husband will enttle him to the fruitiOn of the
proceeds of his wife's property. To pronounce
in favor of the wife will entitle her to the enjoy
ment of her own property, or to alimony from
her husband. To pronounce in favor of the
husband would entite him to the custody of the
children, and. deny the custody to the wife and
vice versa: Nor can it be OF possible consequence
that the defendant has not pleaded the otfense
of the plaintiff as a bar to the action; for when
such a defense comes to the knowledge OF the
Court it is efectuaI because nothing is lost be-
tween the parties and the public for want oil
pleading. Nor is it any good reason to say that
in the present case the husband has no property,
= or that the wife is seeking no alimony. or that
they have no children, since the Court must pro
coed upon general rules, and not upon the circum
stances of particular cases. Nor can the Court
determine which is the innocent and which is the
injured party, when both equally guilty be-
fore the aw-guilty to the degree that the other
party would be entitled to divorce Certainly
"persons who seek by the law to right their
wrongs, must show that they themselves are moi
wrong in respect to the subject of the action.
1t is frequently said, and the argument has been
frequently used in this and other cases on tria
this term, that it would be well to grant di
vorce so that parties may return to a proper
mode of living We apprehend that this is moi
quite sound for, in the first place, marriage is
fraught with consequences not only to the par.
ties to the marriage. bat to the children of thai
marriage, to the rights of property under it, and
the manner 10 which the law of marriage is ad
mnstered is of interest to the whole public and
4 the law should not be holden one way for the
rich man and another for the poor man. The
same law that governs the rights Of the wealthy
in this respect, and causes the descent of pro
pe:ty by the one side, or by the other side, anC
gives the right of guardianship for the children
the offspring OF that marriage and the heir;
to their wealth--must govern the rights of the
poor man as to his OWE earnings and his Owr
family. Nor is there any why parte:
who were equally sinful against each other, and
are repeniant of their sins. and DESTROYS of lead
ing better life, should not return to their con
: tract. Nor do the public have any assurance
that pair who have mutually broken that con
!. tract, and persevere in that breach would hold
themselves any more strictly to any future con-
! tract, and it would be fruitess endeavor to &C
], cOmmodate the law so as to make happy those
e who give unbridled license to their passions
And we apprehend any attempt to accommodate
the law to that class of persons will be found tC
plunge the community deeper into quagmires OIL
uncertainty, without, in any manner, extricating
them from the consequences OF their own evi
acts. Almost every one is ready with their ex
ample of hard cases TO which they wish to apply
special remedy, the general tendency of which
1 would be to reduce matrimony to the level o.
concubinsge; but the examination of each case
. will show that it is unadyisable to accommodate
the law to it, and that it is quite unworthy o.
special legislation. But it is said sometime:
that the act OF ones partner drives the other into
adultery. In the first case, if it is said that the
wife is driven to adultery by reason of her aban
Comment, those who use that argument seem tc
: ignore the fact that she mey earn her living b.
honest labor. II it means that the passions oil
the human race drive them to adultery, it merely
succeeds in casting slur upon every unmarried
person, and putting the human race on eYe
I with the brutes. Besides all this, each party al
the inception of the wrong and when they found
themselves within the danger Of temptation. Oh
struggling for the right, had the power Of invOk
tho Ia tn aid ham in tho of thai,