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 DIVORCE they are not cases of legal relief; people must relieve themselves as well as they can by prudent resistance, by calling in the succours of religion and the consolation of friends; but the aid of courts is not to be resorted to in such cases with any effect.” The risk of personal danger in cohabitation constituted, therefore, the foundation of lecral cruelty. But this does not exclude such conduct as a course of persistent ill-treatment, though not amounting to personal violence, especially if such ill-treatment has in fact caused injury to health. But the person complaining must not be the author of his or her own wrong. If, accordingly, one of the spouses by his or her conduct is really the cause of the conduct complained of, recourse to the court would be had in vain, the true remedy lying in a reformation of the real cause of the disagreement. In addition to a denial of the charge or charges, the canon law allowed three grounds of answer: (1) Compensatio criminis, a set-off of equal guilt or recrimination. This principle is no doubt derived from the Roman law, and it had the effect of refusing to one guilty spouse the remedy of divorce against the other although equally guilty. It was always accepted in England, although not in other countries, such as France and Scotland, which also followed the canon or civil law. In strictness, recrimination applied to a similar offence having been committed by the party charging that offence. But a recent decision of the English courts shows that a wife who had committed adultery could not bring a suit against her husband for cruelty {Otway v. Otway, 13 P. D. 141). (2) Condonation. If the complaining spouse has, in fact, forgiven the offence complained of, that constitutes a conditional bar to any proceedings. The main and usual evidence of such forgiveness is constituted by a renewal of marital intercourse, and it is difficult—perhaps impossible—to imagine any case in which such intercourse would not be held to establish condonation. But condonation may be proved by other acts, or by words, having regard to the circumstances of each case. Condonation is, however, always presumed to be conditional on future good behaviour, and misconduct even of a different kind revives the former offence. (3) Connivance constitutes a complete answer to any charge. Nor need the husband be the active agent of the misconduct of the wife. Indifference or neglect imputable to a corrupt intention are sufficient. It will be seen presently that modern statute law has gone further in this direction. It is to be added that the connivance need not be of the very act complained of, but may be of an act of a similar kind. A learned judge, recalling the classical anecdote of Maecenas and Galba, said, “A husband is not permitted to say non omnibus dormioC The ecclesiastical courts also considered themselves bound to refuse relief if there was shown to be collusion between the parties. In its primary and most general sense collusion was understood to be an agreement between the parties for the purpose of deceiving the court by false or fictitious evidence; for example, an agreement to commit, or appear to commit, an act of adultery. Collusion, however, is not limited to the imposing of other than genuine evidence on the court. It extends to an agreement to withhold any material evidence; and indeed is carried farther, and held to extend to any agreement which may have the effect of concealing the real and complete truth from the court (see Churchward v. Churchward, 1894, P. 161). This doctrine was of considerable importance even in the days when only divorces a mensd et thoro were granted, because at that time the parties were not permitted to separate by consent. At the present day it has become, with regard to divorce a vinculo matrimonii, a rule of greater and of more far-reaching importance.

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The canon law as accepted in England, while allowing divorces of the nature and for the causes above mentioned, actively interfered to prevent separation between husband and wife in any other manner. A suit known as a suit for restitution of conjugal rights could be brought to compel cohabitation; and on evidence of the desertion of either spouse, the court ordered a return to the matrimonial home, though it carried no further its authority as to the matrimonial relations within the home. To this suit an agreement between the parties constituted no answer. But an answer was afforded by any conduct which would have supported a decree of divorce a mensd et thoro. It is a question whether, indeed, the ecclesiastical courts would not have gone farther, and refused a decree of restitution of conjugal rights on grounds which might appear adequate to justify such refusal, though not sufficient on which to ground a decree of divorce. Recently the view of the Court of Appeal and the House of Lords has given some colour to this opinion, and certainly the Court of Appeal has held, although perhaps somewhat hastily, that the effect of a modern statute has been to allow the court to refuse restitution of conjugal rights for causes falling short of what would constitute ground for divorce (Russell v. Russell, 1895, p. 315). The ecclesiastical courts provided for the pecuniary rights of the wife by granting to her alimony during the progress of the suit, and a proper allowance after its termination in cases in which she was successful. Such payments were dependent on the pecuniary means, or faculties, as they were termed, of the husband, and were subject to subsequent increase or diminution in proper cases. But the ecclesiastical courts did not deal with the custody of the children of the marriage, it being probably considered that that matter could be determined by the common law rights of the father, or by the intervention of the Court of Chancery. The canon law fixed no period of limitation, either in respect of a suit for divorce or for restitution of conjugal rights; but, as regards at least suits for divorce, any substantial delay might lead to the imputation of acquiescence or even condonation. To that extent, at least, the maxim vigilantibus non dormientibus jura subveniunt applied. It is remarkable that desertion by either party to a, marriage, except as giving rise to a suit for restitution, was not treated as an offence by canon law in England. It formed no ground for a suit for divorce, and constituted no answer to such a suit by way of recrimination. It might indeed deprive a husband of his remedy if it amounted to connivance, or perhaps even if it amounted only to culpable neglect. The canon law, as administered in England, has kept clear the logical distinction which exists between dissolving a marriage and declaring it null and void. The result has been that, in England at least, the two proceedings have never been allowed to pass into one another, and a complete divorce has not been granted on pretence of a cause really one for declaring the marriage void ab initio. But for certain causes the courts were prepared to declare a marriage null and void on the suit of either party. There is, indeed, a distinction to be drawn between a marriage void or only voidable, though in both cases it became the subject of a similar declaration. It was void in the cases of incapacity of the parties to contract it, arising from want of proper age, or consanguinity, or from a previous marriage, or from absence of consent, a state of things which would arise if the marriage were compelled by force or induced by fraud as to the nature of the contract entered into or the personality of the parties. It is to be remarked that, in England at least, the idea of fraud as