8 Paige Ch. 47 | New York Court of Chancery | 1839
As the habeas corpus in this case was directed to the father-in-law, commanding him to bring up both the wife and child, and was served by the relator on him only, it is perfectly clear that it is not a ease contemplated by the legislature, in the provision of the revised statutes which makes it the duty of the person upon whom the writ is served to return the same, even if not named therein, so as to authorize the wife to make a return to the writ; although the defendant may have delivered the writ to her after it had been served on himself. Her sworn statement in the form of a return, therefore, cannot be deemed a proper return of the wife to the writ, so as to require the relator to disapprove that statement as her return under, oath. And as she is present, and can be examined openly in the presence of the relator and his counsel, if she is a competent witness against the husband for any purpose 'in this matter, her ex parte statement on oath cannot be read or used as evidence, should they insist upon an open examination on oath, with the right of cross-examination on the part of the relator. It is insisted, however, by the counsel for the husband, that she is an incompetent witness against him to prove any of the facts contained in her statement which is made a part of the defendant’s return. And this is a question which, so far as I have been able to discover during the short time I have been allowed to examine the same, has never been distinctly decided by any court, either in this country or in England.
The general rule that a wife cannot be admitted as a
It is admitted, however, that there are exceptions to this general rule, in cases where the wife herself is the injured person, and where the form of the proceedings is such that she is not excluded upon the technical objection that she is party to the suit. By the law of Scotland, as was decided in the case of Crommelin, for an assault on his wife, (Swinton’s Just. Rep. 291,) the wife is compelled to testify against the husband in such cases, and she has not the option to give evidence or not. In the case of Mysie Graham, who. was indicted for an attempt to murder her hus
The question now under consideration, arose in the case of De Manville v. De Manville, (10 Vesey, 52,) substantially as in this case. For although that was not a proceeding on a habeas corpus, it was a petition presented by the wife and child, in a suit in chancery instituted in the name of the child; which gave the court jurisdiction over the husband as a party, the child being thereby constituted a ward of the court. And the object of the application there was to give the custody of the child to the wife, who was living in a state of separation from her husband without his consent, on the ground, as the petitioner alleged, of his cruel treatment. But although Lord Eldon seemed to express an opinion in favdf' of receiving the affidavit of the
The affidavit of the wife was also received by Mr. Justice Bronson, de bene esse, in the case of The People v. Chegaray, (18 Wendell, 637,) where she was the relator in an application for a habeas corpus to obtain the custody of the children. But the judge decided the case against her, without passing upon the question of the admissibility of her evidence against the defendant. It may, however, be remarked in relation to that case, that the husband was not a. nominal party to the proceedings ; the habeas corpus being directed to other persons, with whom the children had been placed by the father. And his affidavit, appears to have been read as evidence .against his wife, the relator, without objection.
This question therefore being still unsettled by any judicial decision, it remains for me to determine whether the present case comes within the spirit of the exceptions to what is admitted by the counsel for both parties to be the general rule of law. The exceptions to that rule do not always proceed upon the ground that the wife has a direct personal interest in the question as to which she is called upon to give evidence. Indeed, with the exception of the single case of her applying for surety of the peace against her husband, it can hardly be said she had a personal interest in the decision of the suit against him in those cases where she has been permitted to give evidence. She is permitted to be a witness in most of the cases excepted from the general rule, from principles of public policy, in order that he may be restrained from committing outrages against her, in the retirement of the family circle, under the supposition that he may do so with impunity.. Whenever, therefore, the policy or necessity of admitting her as 8, witness against her husband is sufficiently strong to over
In the present case the husband is seeking to deprive his infant child of the care and protection of a mother, upon the ground that the mother has improperly and unjustifiably withdrawn herself from his bed and board, in violation of her marriage vows. And if such is the real fact, however I may doubt the wisdom of the course he is pursuing, to induce her to return to her duty as a Christian wife and mother, I am not prepared to say he can be deprived of the society of his child, as well as of his wife, unless the safety of the child itself requires him to refrain for a time from exercising his parental rights. But on the other hand, if his misconduct toward the partner of his bed and his bosom has furnished her with good cause for seeking again the protection of the paternal roof, no law, either human or divine, requires meto remove this infant from her arms, or from the same friendly shelter. The same necessity and policy, therefore, which allow the wife to be a witness against her husband upon an indictment, to prove similar acts of oppression and cruelty toward her, seem to indicate that she should be permitted to prove any acts of cruelty, if such exist, which will justify her refusal to return to the house of her husband. She must therefore be permitted to testify to any such acts of cruelty stated in the return or the documents annexed to it. But she cannot be allowed to appear as a witness against him as to his general character, or as to any misconduct of his in other respects.
The evidence having been taken in the cause in reference to the various matters stated in the petition upon which the habeas corpus was granted, and in the return of the defendant Mercein, the case was fully argued before the chancellor, and he thereupon delivered the following opinion upon the various questions of law and fact which arose therein.
If she remains separated from her husband, therefore, in violation of her marriage vows, and of her duty as a wife, it is her own voluntary act. And as neither this court nor any other court in this state, has any jurisdiction or authority, upon habeas corpus or otherwise, to compel a wife to return to the bed and board of her husband and to the performance of her conjugal duties, where she voluntarily absents herself from him, either with or without justifiable cause, it only remains for me to decree and declare as to her, that she is under no restraint whatever. She is therefore at perfect liberty, so far as the power of this court is concerned, to return to her husband, or to seek the protection of her father’s house, or the protection of any other relative or friend who may think proper to assume the legal responsibility of affording her a shelter in opposition to what the relator claims to be his marital rights. If any third party violates the rights of the husband in this respect, by harboring a wife -who separates herself from him without any sufficient cause, the common law has provided him a remedy against such person, by an action on the case for damages. But so far as regards the wife herself, the laws of this state, whether wisely or unwisely it is not
The decision of the case, so far as respects the infant daughter of the relator, depends upon different principles; as from her tender years she is wholly incapable, at this time, of exercising any volition whatever, in regard to her future residence. The court therefore must, for the present, decide that question for her, with reference not only to her own immediate safety, but also with a due regard for her future welfare. In such a case as this, it is not material, perhaps, to inquire whether the chancellor, in allowing the writ of habeas corpus, acts as a mere commissioner under the statute, or as a court proceeding by virtue of an inherent power derived from the common law, but regulated in the exercise of that power by the special provisions of the revised statutes on the subject. Were it necessary, however, I think there would be no difficulty in showing that the power of the chancellor to issue a habeas corpus is not derived solely from the statute, but is also an inherent power in the court, derived from the common law ; although the authority of this court, as well as of the supreme court, to award the writ, and to proceed thereon, is to be exercised in conformity to the several provisions of the revised statutes. (2 R. S. 573, § 73.) A writ of habeas corpus ad subjiciendum, however, is not, either by the common law or under the provisions of the revised statutes, the proper mode of instituting a proceeding to try the legal right of a party to the guardianship of an infant. This court, therefore, upon such a writ, will exer
But before I proceed to state the conclusion at which my own mind has arrived on that subject, it may be proper to state that it is contrary to public policy to allow the husband or the wife to withdraw from the duty of matrimonial cohabitation for any slight causes, which do not endanger the personal safety of the party ; as such withdrawal is wholly repugnant to good morals and to the injunctions of the divine lawgiver. The court, therefore, is bound to set its face against every attempt on the part of married persons, either by agreement or otherwise, to throw off the duties or the responsibilities which the marriage contract has imposed upon them. To use the language of a late distinguished judge,who certainly was well qualified to speak on this
The relator and his wife were married in the spring of 1835 ; he then being a widow with five children, the two youngest of whom were about ten years of age, and she having arrived at the mature age of twenty-five or six. The husband residing at Liverpool, in Nova Scotia, and his intended wife at New-York, it was made a condition of her consent to the marriage, and upon which condition also the consent of her parents was obtained, that at the expiration of one year from the time of the marriage he should close
That she once loved her husband also, as few have ever loved before, I think no one who reads the correspondence in this case can for a moment doubt. It is equally evident, to my mind, that the relator loved his wife with a strength of attachment -which was not inferior to hers; although he has at times, under the influence of passion, aggravated probably by the situation of his pecuniary affairs, indulged himself in conduct toward her which certainly appears like great injustice ; especially since the commencement of his commercial difficulties after his removal to New-York. The sister testifies that during the first six months after the marriage, while she was with them at Liverpool, she saw, as she supposed, an occasional harshness of expression on the part of Mr. Barry ; and that his wife was frequently low spirited and in tears. And Miss Mercein very naturally was led to suspect that this depression of spirits, &c. in her sister, arose from dissatisfaction with the conduct of her husband toward her. There was nothing, however, in the appearances testified to by this witness, which cannot reasonably be accounted for
To show that I cannot be mistaken on this subject, unless Mrs. Barry penned a deliberate falsehood, which I am sure she is incapable of doing, it is only necessary to refer to the extract from her letter to the sister, written four days after that sister left for New-York. That extract is contained in a letter to the relator, who was then at Halifax, couched in terms of the most devoted tenderness and affection, and is as follows : "And now, dear Imogene, for your own letter. If the weight of anxiety and fear you feel would vanish by my calm written assurance that I am happy, let it be entirely dispelled. I might be silent were it otherwise, but for worlds I would not dare in so many words to deceive you. Apart from my present and anticipated separation from home, I would not exchange my lot with mortal. There are few such hearts as Barry’s, and his, I feel, is truly and wholly mine. My love for him is not only warm, it is deep, intense ; and though it has not entirely conquered the pride and selfishness fostered for nearly thirty years, it will certainly triumph. I know it has not appeared to you as deep as it really is, but remember it has been most severely tried. I attempt no apology for my waywardness—it deserves none,, But you know
This is not the language of waning affection, or of a heart which already begins to feel that it has been deceived in its fondest anticipations. No ; it is the strong and convincing language of nature and of truth—the natural language of a heart which must have been perfectly satisfied, and have most deeply felt, that its best affections had not been fixed upon an unworthy object—a capricious and tyrannical husband, wholly incapable of appreciating, as well as of returning, the-love of an amiable and devoted wife. No subsequent events, therefore, can satisfy me that he at that time deserved the character which has been attributed to him by the counsel of the defendant. That he was a man of a hasty temper, is admitted by his counsel, and it is also established by the evidence in the case. But that would not necessarily render him a less kind and affectionate husband, though it naturally required more prudence and circumspection on the part of the wife.
The first occurrence which deserves any notice, after Miss Mercein left Liverpool, is the difficulty in relation to the taking of the medicine, in the latter part of January or the beginning of February, 1836. There is no reason to doubt that Mrs. Barry really supposed the conduct of her
After their removal to New-York, two difficulties occured, in which, according to the statement of Mrs. Barry, the husband was clearly wrong. The first occurred in November, 1836, about a fortnight after the birth of her first child; when her nurse had left her, and when the mother, who was to have supplied the place of the nurse for a few days, had been called home to attend the sick
The second difficulty occurred in April or May, 1837, when the servant gave notice she was going to leave them. Mrs. Barry admits that they had sometimes differed in opinion as to the merits of Dolly ; the husband maintaining the position that this black girl was the best servant that ever lived, and the wife insisting that Dolly was a pretty good servant, but not the best. From the testimony of Mrs. Barry, I am satisfied that a violent quarrel took place between the parties ; and if she recollects the circumstances correctly, the fault of beginning it without cause rests wholly with him. In this I have reason to believe she is probably right. Dolly was called as a witness; and if Mrs. Barry had been the cause of her leaving, he would have attempted to prove it by her. But whatever may have been the merits or demerits of either in the original
Even this was not sufficient to sever the strong chord of affection which still bound her to him; and in the true spirit of a Christian wife she forgave him all. It is evident, however, that these acts of unkindness had created a vague suspicion in her mind that his affection.for her had ceased. This very naturally led her afterwards from very slight circumstances to entertain the suspicion that he was unfaithful as well as unkind; as the only rational way of accounting for his conduct. It is but justice to the relator, however, to say that all the circumstances mentioned in the return do not afford any foundation even for a rational suspicion that he has ever erred in that way. And it is the duty of the wife to banish that idea at once from her mind, if she has not already done so. To this shocking suspicion I attribute the mental anguish which was discovered so frequently by Dr. Reese, the family physician; and from which he very naturally concluded that her disease was not corporeal but mental. The occasional sallies of passion that occurred, which are spoken of by some of the witnesses, in connection with all that had previously taken place, would not of themselves, I think, have rendered the continuance of life entirely indifferent to her, while her first born child, then but a few months old, stood so much in need of a mother’s care. But the distracting thought that one whom she had loved with such deep devotion was wholly worthless and degraded, would indeed be madness ; and might render even life itself a burthen.
If the relator had always treated his wife with kindness, I am not prepared to say that it would not have been her duty, notwithstanding the ante-nuptial agreement and her strong filial attachments, to have followed him to any part of the world where he had a reasonable prospect of bettering his condition. But, under all the circumstances of this case, I think he had no right to insist upon her consent to his establishing himself in business at Liverpool, with the view of taking her there to reside, even at a future day. I do not believe that at the time this occurred she either wished or desired a final separation ; but she was waiting in the hope that something might occur which would enable them again to unite their fortunes at a future time. And no one who reads the last paragraph of her letter can justly say she was destitute of feeling, though it contains no evidence of that devoted attachment to her husband which existed during the first six months of their residence in Nova Scotia. The husband, however, misled by his feelings, I trust, and not by the unworthy motives attributed to him by the defendant’s counsel, understood this letter otherwise. He therefore deliberately penned the fatal answer, renouncing forever the wife who had once loved him so dearly, and declaring his unalterable determination never to be re-united to her on this side of the boundless ocean of eternity; since which time he has had full occasion to feel the full force of that expressive senti
Harsh as this proceeding was on his part, I am satisfied from the evidence before me that the affection of his wife for him still continued, although her heart must have been severely tried; especially by the calmly expressed determination of her husband to deprive her of the care and nurture of her first born child, then but nineteen months old. And when he so readily retracted his rash declaration, and gave such evidence of deep contrition for what had occurred, I do not see any thing which could legally justify a final separation between these parties, though I am satisfied it was not then the duty of his wife to go with him to a foreign land to reside. I do not, therefore, consider the subsequent agreement for a permanent separation, at the option of the wife, and providing for the future custody of the children, as necessarily valid and legally binding, so as to give any new rights to either party.
In the language of the late Lord Eldon, the marriage contract, whether it be considered as a civil contract only, or one which is both civil and religious, is a contract of a very peculiar nature. It is one which the parties cannot dissolve; one by which they impose duties upon themselves, and by which they engage to perform duties with respect to their offspring; duties which are imposed as much for the sake of public policy as of private happiness. The circumstance that the complaint against the legality of an instrument, on the grounds of public policy, is made by one who is a party to it, is of no consequence ; for the relief in such a case is given in regard to the interests of the public, and not on account of the individual. In Marshall v. Rutton, (8 Durn. & East, 547,) Lord Kenyon emphatically asks, how can it be in the power of any persons by their private agreement to alter the character and condition which by law results from the state of marriage while it subsists, and from thence to infer rights of
The result of this examination is, that nothing had occurred between these parties, at the time the husband left New-York, in the summer of 1838, which was legally sufficient to authorize a decree of separation from matrimonial cohabitation, according to the laws of this state, or by the laws of the country where the husband is now domiciled ; but that sufficient had occurred to justify the wife, both legally and morally, in refusing for the present to place herself under his entire control, in a land of strangers. I concur also in the opinion so strongly expressed by the counsel for the defendant, that the act of tearing her infant son from the arms of a mother, in the vain hope of thereby inducing her to follow him to Nova Scotia, was more likely to produce an irrevocable separation between them than
Much allowance undoubtedly must be made for the excited feelings of a husband and a father, who probably feels that his worldly property has been sacrificed to the wish of his wife to live in New-York, in accordance with the ante-nuptial agreement. He ought however to have recollected that there was great danger of losing his former high standing in society, both as a gentleman and a Christian, by an indiscreet attempt to enforce what he believed to be his marital and paternal rights. For, under the circumstances of this case, the natural feelings of one half of the community at least would almost necessarily be against him—and there was but little chance of his finding much sympathy with the other half, whatever they might think of his legal rights ; unless he was able to satisfy them beyond a reasonable doubt that his wife and her parents were wholly in the wrong.
Having arrived at the conclusion that Mrs Barry, at least for the present, is justified in her refusal to accompany her husband to Nova Scotia as her future residence, and that she is not therefore living in a state of separation from him which can be properly considered as illegal and immoral, it remains to be seen what effect that conclusion is to have upon the residence of the child. I have before said this court, upon habeas corpus merely, does not attempt to settle definitely the legal question of guardianship. And the prayer of the petition, on which this writ is sued, is not framed in such a manner as to constitute it an application to the court of chancery, as the representative of the people or sovereign power of the state as parens patrien, having the general care and guardianship of infants, to settle a question of conflicting rights or claims of right. It is also admitted, by the counsel of both parties, that the true interest of the child is alone tobe consulted in deciding the question now before me. If the child should be delivered to