Dickinson v. Dickinson

• Decision Date: 31 May 1819
• Court: North Carolina Supreme Court
• Parties: LOUISA DICKINSON v. JOEL DICKINSON.

7 N.C. 327

LOUISA DICKINSON

v.JOEL DICKINSON.

SUPREME COURT OF NORTH CAROLINA

MAY TERM, 1819.

From Beaufort.

Petition for divorce from the bonds of matrimony, for adultery committed in the years 1812 and 1813. The petition dismissed; for The act of 1814, ch. 5, is the only law which gives authority to the Courts to take cognizance of the subject of divorce. The adultery charged was prior to the passage of this act; and the act shall not be so construed as to have a retrospective operation; because, Before the passage of the act of 1814, adultery was punishable only by a fine. To superadd to this liability, a deprivation of the marital rights, under the act of 1814, would be to increase the punishment of the offence; and this would be contrary to the 24th section of the bill of rights, which declares that "no ex post facto laws ought to be made."

Ex post facto Laws are of different kinds.

1. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action.

2. Every law that aggravates a crime, or makes it greater than it was, when committed.

3. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime when committed.

4. Every law that alters the legal rules of evidence, and receives less or different testimony, than the law required at the time of the commission of the offence, in order to convict the offender. The enhancement of a crime or penalty, seems to come within the same mischief as the creation of a crime or penalty.

To every petition for divorce there must be an affidavit appended, that the facts charged have existed and been known to the petitioner six months before the filing of the petition.

This was a petition filed under the act of 1814, ch. 5, praying for a divorce a vinculo matrimonii or a mensa et thoro at the discretion of the Court. To support the first prayer, the petition charged that the Defendant had separated himself from the petitioner and lived in a state of adultery in 1812 or 1813, for the space of six months: and the Jury, upon an issue submitted to them, found this charge to be true. To support the second prayer, the petition charged the Defendant with cruel treatment to the petitioner, and with having offered to her person intolerable indignities. The Jury negatived these charges; and thequestion arose, whether the petitioner were entitled to have a decree made separating her from the bonds of matrimony, the adultery charged in the petition and found by

the Jury, having been committed before the passage of the act of 1814, ch. 5.

Another question was made in the case, and that was as to the sufficiency of the affidavit made by the petitioner at the time of filing her petition. The affidavit set forth that "the facts stated in the petition were true, and that the complaint was not made out of levity or by collusion between the petitioner and her husband, for the purpose of a separation, but in truth and sincerity for the causes contained in the petition." It was contended, that the act of 1814, ch. 5, required the affidavit to set forth, that the facts which formed the ground of the complaint had existed and had been known to the petitioner at least six months prior to the filing of the petition.

TAYLOR, Chief Justice: Ch. 5, Laws 1814, is the only law which gives authority to the Courts to take cognizance of the subject of divorce. The first section of that act authorizes the Court to decree a divorce from bed and board, or from the bonds of matrimony, at the discretion of the Court, on proof of natural impotence, or that either party has separated him or herself from the other and is living in Adultery. And a subsequent section authorizes the Court to decree a divorce from bed and board, in cases where the husband either abandons his family, maliciously turns his wife out of doors, endangers her life by cruel treatment, or offers intolerable indignities to her person. The verdict of the Jury has negatived the charges in the petition, relative to the cruelty and personal ill-treatment, and affirmed the charge of adultery; as to which, the Jury find that the Defendant did separate himself from the petitioner, and lived in a state of adultery,in 1812 or 1813, for the space of six months. And this brings forward the question, whether a decree can be pronounced under the act of 1814, for the adultery committed before that period.

From the language used in the first and second sections of the act, it would...