Page:The Green Bag (1889–1914), Volume 13.pdf/163

 136

meaning attached to it; it becomes a contest of spirit, in form, between two persons eager to take and not absolutely backward to give mutual offence. At last the husband breaks up the family connection, and breaks it up with circumstances sufficiently expressive of disgust; treaties are attempted, and they mis carry, as they might be expected to do in the hands of persons strongly disaffected toward each other; and then for the very first time a suit of cruelty is thought of; a libel is given in, black with criminating matter; recrimin ation comes from the other side; accusations rain heavy and thick on all sides, till all is involved in gloom and the parties lose total sight of each other's real character, and of the truth of every fact which is involved in the. cause." He then benevolently proceeds to point out to the parties the limits of his powers: "The humanity of the court has been loud ly and repeatedly invoked. Humanity is the second virtue of courts, but undoubtedly the first is justice. If it were a question of humanity simply, and of humanity which confined its means merely to the happi ness of the present parties, it would be a question easily decided upon first impres sions. Everybody must feel a wish to sepa rate those who wish to live separate from each other, who cannot live together with any degree of harmony and, consequently, with any degree of happiness; but my situa tion does not allow me to indulge in the feelings, much less the first feelings, of an individual. The law has said that married persons shall not be legally separated upon the mere disinclination of one or both to cohabit together. The disinclination must be founded upon reasons which the law ap proves, and it is my duty to see whether these reasons exist in the present case. To vindicate the policy of the law is no necessary part of the office of a judge; but if it were, it would not be difficult to show that the law in this respect has acted with its usual wis dom and humanity, with that true wisdom and that real humanity that regards the gen

eral interests of mankind. For though in particular cases the repugnance of the law to dissolve the obligations oí matrimonial cohabitation may operate with great severity upon individuals, yet it must be carefully re membered that the general happiness of the married life is secured by its indissolubility. When people understand that they must live together, except for a very few reasons known to the law, they learn to soften by mutual accommodation that yoke which they know they cannot shake off; they become good husbands and good wives from the necessity of remaining husbands and wives, for necessity is a powerful master in teach ing the duties which it imposes. If it were once understood that upon mutual disgust married persons might be legally separated, many couples, who now pass through the world with mutual comfort, with attention to their offspring and to the moral order of civil society, might have been at this mo ment living in a state of mutual unkindness, in a state of estrangement from their com mon offspring, and in a state of the most licentious and unreserved immorality. In this case, as in many others, the happiness of some individuals must be sacrificed to the greater and more general good." But the highest sphere in which he exer cised his faculties was the court of admiralty, where for a period of thirty years he was rather a law-giver than a judge. Except a few manuscript notes of Sir E. Simpson, some scattered memoranda among the rec ords of the Tower, and occasional references to tradition and personal memory, there were no precedents for his guidance in adjudicat ing upon the novel cases arising in the most important war of English history, involving millions of property and comprehending the rights of settlers in the most distant regions of the earth. He was free to be guided by the writers on Roman, canon and interna tional law, and by the historical material with which his wide reading had made him famil iar. At the same time the unequalled variety of cases which came before him gave him the