Adams v. Adams

| Mass. | Nov 15, 1868

Chapman, C. J.

This is a petition for a writ of supplicavit, addressed to us as a court of chancery. The petitioner alleges and proves such acts as would be sufficient to support a libel for divorce from bed and board for his cruel and abusive treatment of her. She also alleges and proves that she has conscientious scruples against applying for a divorce.

No writ of supplicavit has ever issued from this court. The novelty of the application makes it necessary to examine into the origin and character of the process. A full account of it is given in Fitzherbert, N. B. 79. It appears that it was a writ de securitate pads. It might be sued out by any person, upon proper petition and oath, requiring another, who had threatened him, to keep the peace. A wife might have it against her husband. But after the St. 1 Edw. III. c. 16, other forms of writ were resorted to. Upon security being given by the defendant, he might have a supersedeas.

The form of the writ was, to compel the husband, “ that he shall well and honestly treat and govern the aforesaid B., (his wife,) and that he shall not do nor procure to be done any damage or evil to her of her body, otherwise than what reasonably belongs to her husband for the purpose of the government and chastisement of his wife lawfully.” See also Bac. Ab. Surety of the Peace, E. The course of proceeding was, to arrest the defendant on the writ and bring him before the sheriff, or a justice of the peace, when a recognizance was taken in a reasonable sum, with sureties, and thereupon he was discharged by a writ of supersedeas. If nothing new appeared, it was the practice, both in chancery and in the king’s bench, to discharge the articles of the peace at the end of a year. Baynum v. Baynum, Ambl. 63. Ex parte King, Ib. 240. But if the ill usage continued, a discharge was refused. Ex parte King, Ib. 333. The court had only power to bind the husband to his behavior, not to remove his wife from him. The King v. Lord Lee, 2 Lev. 128. There are several reported cases in modern times where sureties of the peace were required. Tunnicliff’s case, 1 Jac. & Walk. 348. Heyn’s case, 2 Ves. & B. 182. Dobbyn’s case, 3 Ves. & B. 183.

The object of the writ is not to provide for a permanent maintenance for the wife. In Head v. Head, 3 Atk. 547, Lord Hardwicke said the security was taken upon the supposition that the parties would live together. In Duncan v. Duncan, 19 Ves. 394 Sir William Grant said it was. contrary to the established doe. trine, that a married woman should be a plaintiff in the court of . chancery for a separate maintenance; that it was always incl* dental to some other matter that she became entitled to a separate provision. He instances the case of a supplicavit for sureties of the peace, if it became necessary that she should live apart. See also Ball v. Montgomery, 2 Ves. Jr. 195. But it is not stated that the provision is to be permanent; and the remarks are mere dicta. But in Clancy on Married Women, 454, it is said that the writ is always sued out upon the supposition that the husband and wife are to cohabit, as will appear from the language and object of the writ itself; and he asks, “ How-can a court award a separate maintenance to a wife, upon a proceeding which she has recourse to upon the idea that she is to live with her husband ? ” In Codd v. Codd, 2 Johns. Ch. 141, Chancellor Kent doubted his power to grant the writ, even in a proper case, and asked why the party should not apply to a justice of the peace to bind the other to his good behavior. The only case cited in which it appears to have been granted in this country is Prather v. Prather, 4 Desaus. 33.

In 2 Story Eq. (8th ed.) § 1423, it is said that there is no modern instance of a decree of separate maintenance on supplicavit. No such instance is referred to in the argument in this case, nor have we been able to find one.

In Clavering's case, 2 P. W. 202, a motion for supplicavit was refused, and it is remarked that the master of the rolls generally refuses to grant this writ, directing the party to apply elsewhere, namely, to the justices of the peace.

In its nature it is a criminal proceeding; and this is a good reason why it should have gone into disuse, for it does not seem to be desirable that courts of chancery should retain this small modicum of criminal jurisdiction. The provisions of the Gen. Sts. c. 113, which prescribe chancery jurisdiction and regulate shancery practice in this Commonwealth, render it clear that the legislature did not intend to include criminal cases. And c. 169, which regulates the process by which parties may be required to give sureties to keep the peace, limits the term of the recognizance to six months. This limitation would substantially de stray the value of a writ of supplicavit. And though the statute authorizes this court, as well as the inferior courts, to take such recognizances, yet it is to be so interpreted as to be consistent with the system of leaving all criminal matters, except capita, cases, to be tried in the lower courts.

But it never was a direct object of the writ of supplicavit to give alimony. Its purpose was to protect the complaining party from personal violence and abuse. Sometimes it was thought necessary to make a temporary provision for a wife who had left her husband because it was not safe to live with him, until he would receive her back. An attempt to use the process for the direct purpose of obtaining alimony to enable her to have a permanent separate maintenance would have been regarded as an abuse.

Yet the obvious purpose of the complaint in this case is, to make this court an instrument by which a woman, who has ground for a divorce a mensd because of ill treatment, may obtain a permanent separate maintenance, and still preserve the marriage relation. The petition enumerates the acts of abuse, avers that the petitioner has asked her husband for money and maintenance for herself and child, which he refuses to furnish, and avers that it is dangerous to her life to live with him. It alleges that he is concealing and wasting bis property, and that she and her child are in danger of being left without support. It prays that he may be required to find sureties of the peace, and that, as incident thereto, there shall be granted to her, from his property or earnings, a suitable maintenance for herself and child, and that a writ of injunction may be granted, restraining him from conveying or concealing his property.

It alleges that she has left him, but does not intimate a willingness or desire to return. Of course, the only use of a recognizance to keep the peace would be to prevent him from molesting her while living separately. The form of the ancient writ for which she asks would hardly be approved of by her or by the court.

But she puts her case upon the ground that she has conscientious scruples against the remedy which is provided by law for married women who desire to be permanently separated from their husbands, namely, an application for a divorce. Suck scruples may always justify a party in declining to avail herself of any legal remedy which the law has provided ; or in applying to the legislature to establish a new remedy by statute. But the judicial department of the government has not power to make law; it can only declare what the law is, in application to cases as they are properly brought before it. We could not, for example, give to a party a remedy in equity on the ground that he had conscientious scruples against bringing an action of tort. For this reason, we cannot take notice of the conscientious scruples of the petitioner in respect to any remedy which the legislature has provided for her. Petition dismissed.