Page:The Green Bag (1889–1914), Volume 04.pdf/147

 128

he might have quoted not a few authorities from the printed books, the learned judge moralizes further, that "good morals as well as good policy require that the door should not be opened wider; " and addressing him self to the task of applying the established prescriptions to the maladies of the case before him, he gives us this glimpse of the process which carried him through his diagnosis : — Referring to the testimony, the judge says that it appears that " rude language was oc casionally used by the husband to his wife; yet such language was not often repeated, and when used, seems to have been the ef fect of a momentary excitement, which soon passed away, or of a grumbling bluntness in his manner of expression, which seems to have been more the effect of habit than of ill-will, and which should have been dis regarded by his wife. The only personal violence charged in the bill is that which immediately preceded the departure of the wife from the home of her husband. And it is not even charged in the bill to have been so violent as to inflict on her serious injury. And taking into consideration the denial of the answer, it is certainly rendered questionable, from the proof, whether she was struck by the husband at all; or if stricken, whether the stroke exceeded a slight slap, to which he was provoked by the excitement of the moment, and perhaps by the irritating language and conduct of the wife. Indeed the only witness who at tempts to prove that anything more than a slap was given to her is her own daughter by a former husband, who says she did not see her mother stricken, but saw the defendant have hold of her arm, trying to lead her into the house, and saw his hand raised several times, and heard the strokes struck, but was not in a situation to see them. On the contrary, the defendant de nies that he struck her, or intended to use any violence towards her; but that in the scuffle, and her efforts to wrest her arm from his hand, her hair fell down on her face, and

the only thing he did was to place his hand on her face to replace her hair. And the daughter of the defendant, who was also present, states that she punched him in the breast several times, and she heard no strokes from him, but saw him raise his hand once, and motion it like he slapped her, but saw no slap." Well,' the judge, in the discretion allowed him by the law, thought that under the cir cumstances a divorce would not be condu cive to domestic harmony (although he did not suggest what would be), and that it would not be consistent with the peace and morality of society. He, no doubt, knew from the pleadings and the evidence more of the case than he found it necessary to repeat in his opinion, and having reached a conclusion, which was the best, perhaps, poor man, that he could frame, and the near est to righteousness that the machinery of the law rendered possible, if he gave the mat ter any more thought, which was not at all probable, it was most likely with a gratified sense that he had fitted his little judicial saw exactly into the lines of the pattern which the words of reported precedents had drawn out for him, and it tickled him to death to think how nicely he 'had turned the curves of slippery principles, and had buzzed up into and out again from the sharp angles of narrow and difficult distinctions. It is not for one of us who did not know the case, to say that the judge did any less than his whole duty; but will any man who can read at all between the lines find his mind and heart consenting that the law did by this case exactly the fair and full thing, — ap plied a stroke that really reached down to the root of the weed and tore it out, instead of merely cutting off its wretched top, and letting the noxious thing grow again with renewed vigor? The most fertile imagination may, perhaps, find some difficulty in discovering the ro mantic part of a case like this, where there is a cross-fire of step-daughters, a husband whose rude language and surly demeanor is