¶1The question is, whether the petitioner is entitled to a divorce, under the circumstances of this case. It is understood, that in two instances judges at the circuit have denied a divorce under such circumstances; and Judge Swifts jn his Digest, says: “ Where the parties have cohabited, after a knowledge that one has committed adultery, this will be considered as passing an act of oblivion, and it will be no ground for a divorce.” 1 Swift’s Dig.21. Still, it is believed, tiro opinions of judges and lawyers have not been entirely settled, on this point. Hence it comes before this Court for decision.
¶2Our statute declares, “ that the superior court shall have power to grant divorces to any man or woman, lawfully married, for adultery,” &c. Stat. 178. tit. 24. s. 1. And again, in sect. 2. “ on due proof of the facts, said court may grant a divorce.” From the frame of the statute and the practice under it, the fact of adultery does not, of course, entitle the party to a divorce. The remedy by divorce, is a civil and private prosecution under the controul of the party aggrieved; and he may avail himself of it, or bar himself, by his own act. It is not like an indictment for a crime, which public justice requires should be prosecuted to conviction. If the husband or wife, subsequently to the adultery of the correlate, and after just grounds of belief in his or her guilt, cohabits, it is, in judgment of law, a condonatio injuria, a remission or pardon of the offence, and a bar to the divorce. The law deems it unfit, that after a lapse of time, and after possibly there are children, the fruit of the subsequent connexion, the question of the adultery of one of the parties, should be agitated.
¶3*243This is the doctrine of the ecclesiastical courts in England. Burn’s Eccles. Law, tit. Marriage, sect. 11. The same principle is recognized, by the supreme court of Massachusetts; (Anon. 6 Mass. Rep. 147.) and by Chancellor Kent. Williamson v. Williamson, 1 Johns. Chan Rep. 488. 2 Kent’s Comm. 85. The Chancellor says, “ it is a general principle every where pervading this branch of jurisprudence.” And Chief Justice Parsons, in giving the opinion of the court in Massachusetts, in the case cited, thus concludes a very learned opinion: “If therefore, a husband believing his wife’s guilt, will afterwards cohabit with her, whether influenced by his compassion or his affection, or induced by her tears, her penitence or her fascinations, he cannot afterwards avail himself of that offence, to obtain a dissolution of the marriage. And he is bound by his remission, although he afterwards repent of his indulgence, from his subsequent reflections, or from the persuasion of his friends, or from the influence of what he may call public opinion.”
¶4I am aware, that the proof of a remission must be stronger in the case where it is offered to shew such remission on the part of the wife, than on the part of the husband. She is presumed to be under the power of the husband ; and cohabitation may have arisen from coercion. She too may have been inops consilii; and therefore, not in a condition to resent such an injury and assert her rights. In the case before us, however, there is no room for such an objection. It is found, that she went to the prison wherein he was confined, and for aught that appears, without particular solicitation, lodged with him two or three nights, and had sexual intercourse.
¶5It is also a rule, that the party seeking a divorce, must have probable knowledge of the crime committed, when cohabitation is indulged, to lay a foundation for a pardon. Here again, the proof seems very satisfactory. The knowledge need not arise from vision of the fact, nor from the confession of the accused. It is sufficient, that she knew that he had been convicted ; and this the case finds. It was said, by counsel, that she might not have believed the fact. On that subject the court cannot speculate. If she did not then believe it, the court can have no evidence that she now believes it; for there was no proof of any subsequent adultery. She having once remitted the offence, shall not now obtain a dissolution of the marriage on that ground.
¶6*244Let the superior court, therefore, be advised to dismiss the petition.
¶7Petition to be dismissed.