Betts v. Betts

The Chancellor.

The courts have gone no further on the trial of the issue on a bill of divorce, than to receive proof of the confessions of the party as competent testimony, when connected with other proof. (Doe v. Roe, 1 Johns. Cas. 25 .) But, by the 51st rule of this court, in June, 1806, such evidence is not now admissible at all, on a feigned issue to be awarded, to try the fact of adultery. It might be questioned, whether that rule has notgone too far, in wholly rejecting this species of proof, though the statute evidently intended that a divorce for adultery should be founded on other proof, in addition to the mere confessions of the party. By the 3d section of the act concerning divorces, if the defendant, by his answer, admits the adultery charged, or the bill is taken pro confesso, for want of an answer, a master must still be directed to take proof of the adultery, and the cause is to be heard on such proofs previous to a final decree. I think 1 should not be warranted in saying that the *199 master was not to take any proof of confessions of the party 5 for the confession of the accused is a legitimate species of proof, which is recognised throughout the whole law of evidence ; and when the statute speaks ofu proof,” generally, without mentioning any species of it, we are to understand it as meaning legal testimony at large, as known and established in law. The party’s confession may, and does, aid other proof: but the decree must not rest alone, nor, perhaps, essentially, on such confessions, for there is great danger of collusion between the parties, or of confessions extorted, or made designedly, to furnish means to effect a divorce. These confessions are, therefore, to be received, in this case, with jealousy, and to be weighed with caution, and to be supported, by facts and circumstances tending to demonstrate the charge to the satisfaction of the court.

The rule was derived from the ecclesiastical law, and is well settled, that the confessions of the party are admissible on a charge of adultery, if supported by other proof; but unless corroborated by other evidence and circumstances, they are not sufficient ground for a decree. (Burn's Eccl. Law, tit. Marriage, s. xi. Baxter v. Baxter, 1 Mass. Rep. 346 . Holland v. Holland, 2 Mass. Rep. 154 .) The same doctrine, as to proof, is laid down in the Traite de V Adultere, par M. Fournel, (p. 160., which is a full, accurate, and finished essay, on the whole subject, with all the principles to be collected from the civil, the canon, and the French law. The confession of the party is there held to be competent testimony 5 but then it must be supported by strong presumptions, and by some determinate facts. Adulterium non probatur contra alvum, sola mulieris con fessione.

The present case may be said to rest almost wholly on proof by confession; for the circumstance of the defendant’s being seen once or twice in a house of ill fame, in the way stated, is too slight and equivocal a circumstance to supply *200 the defect of the other proof. It is not satisfactory evidence of guilt, nor of the sincerity of the confession; and this is the only fact exhibited in corroboration of the confessions.

The proof is, then, not sufficient to justify a decree dissolving the marriage, though it is enough for a decree of * separation from bed and board, on the ground of cruel usage, by frequent personal violence, &c.; and 1 shall, accordingly, make such a decree.

Decree accordingly.