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Colonial Cases

Burrows v. Burrows, 1887

[divorce]

Burrows v. Burrows

 

United States Consular Court, Shanghai
Kennedy, 14 March 1887
Source: North China Herald, 23 March 1887

LAW REPORTS.
U.S. CONSUAR COURT.
Shanghai, 14th March, 1887
Before General Kennedy, U.S. Consul-General, Acting Judicially.
PAULA BURROWS, Libellant v. T.  D. BURROWS, Respondent.
This was an application for a decree of divorce, the petitioner being a Chinese woman to whom he respondent a citizen of the United States was married before the U.S. Consul at Hankow on February, 1880.  Her allegation set forth in the libel was that since then she had resided with the respondent, performing all the duties of the marriage covenant till about the 5th inst.  There were three children as issue of the marriage.  The petitioner further stated that "respondent had at diverts times since about three years past, in the first instance, at or near Canton, China, and lately and more frequently at Shanghai committed adultery with divers lewd persons, to the petitioner unknown."
  She further alleged that the respondent for a period of about three years past had been guilty of cruelty towards her.  He was a Chief Examiner of Customs in receipt of a monthly salary of one hundred Haikwan taels, and was moreover owner of some real estate besides the bonuses and other emoluments derived by him from his employment.
  The petitioner prayed for a decree of dissolution of the marriage, or whatever order concerning the maintenance custody and guardianship or access to the children of the marriage the court might deem just, and that the respondent should be ordered to assign to her a reasonable sum for her maintenance as alimony, making the sum of $1,000 dollars.
  The answer of the defendant admitted the charge of adultery, but denied the cruelty, alleging that the petitioner had an ungovernable temper which prevented him living in peace with her since the year 1881 when she had an iIlness, upon recovering from which she showed signs of a distempered brain and an extreme dislike towards him.  She had been in a convent for some time in Hankow in consequence of her precarious state of heath.  He had been obliged to remove the children from her custody owing to her ill treatment of them, and she was totally unfit to have charge of them, either by education or personal qualification, nor had she ever shown any natural feeling for them.  He had property valued at $1,400, and was willing to pay her $500 if she renounced all claims upon him and gave him custody of the three children.
  Mr. E. Robinson appeared for the libellant.  The respondent defended in person.
  Permission was given to amend the libel, by adding after the name of the libellant the words "otherwise known as Taiho Burrows."
  A Chinse boy named Wong Ah-ching, proved that when he was in Mr. Burrows' service, during the libellant's absence, three or four women came to the house and remained all night.
  The marriage certificate was here put in evidence.
  The libellant was next sworn and stated that her name was Paula or Taiho Burrows.  She was married to the respondent on the 3rd February 1880 in presence of the U.S. Consul at Hankow and had since generally lived with him as his wife.  She had first reason to complain of his conduct to her three or four years ago, when he struck her and caused her face to swell.  He was constantly scolding her and no longer treated her as his wife.  His violence towards her continued; he often beat her with his fist and threatened her, saying that he would send her away out of the house and would no longer support her.  She was in terror in consequence of these threats which took place frequently, both in Shanghai and Hankow.  She did not wish to live with him any longer as he has a mistress.  He previously kept a girl in Canton of whom she was told by a friend and a boy.  Thereupon she spoke to respondent on the mater, to which he replied that he had money and could do what he liked.  She had never seen him in company with any woman; since he came to Shanghai he had told her that he wanted her to leave as he had another woman.  It was true that the libellant had been ill in Canton.
  Cross-examined by the respondent - She did not send her amah away and give her children into the charge of a coolie.  Respondent had offered her $300 and 310 a month to go back to Hankow, but that was insufficient.
 Mr. W. S. Emens was sworn and said that the respondent and libellant had both been to his office about their troubles, and respondent confessed to him that he had been guilty of adultery previous to his wife's arrival in Shanghai.  He stated this quite voluntarily.
  In answer to the respondent, witness further stated that the former had called at his office and said that he had been ordered to go to Hongkong and as libellant was anxious to go south, he thought she would be greatly pleased if no further steps should be taken.  Respondent seemed much gratified by the prospect of an amicable settlement.
  The respondent was sworn and said that he admitted the charge of adultery.  With regard to the libellant's temper, he had always found it bad.  He recollected the circumstances of putting the children into a convent in Hankow.  He had kept two amahs, a boy and a coolie.  One day he had occasion to pass the house on business, and dropping in for a moment found the two amahs below stairs doing nothing and the children sleeping in a servant's bed.  He spoke to his wife and said that this was not right.  On his return home at night he found that the two amahs had been discharged, one had already gone and the other was going.  He told his wife not to drive them away as there would be no one to look after the children.  Whereupon she said that the coolie would have charge of them.  He then concluded that it would be best to send the children to the convent.  Her conduct had all along been such as might have been expected from an uneducated woman.  Three years ago she asked him to give her $800 and one of the children and she would go back to Hongkong; he explained to her that the American law would not sanction such a course and that he would not adopt it.  He left her at the convent at Hankow a year ago upon his coming to Shanghai.  As far as his conduct was concerned in Shanghai previous to his wife's joining him, he was able to prove that while he was stopping in the Temperance Hall he never once slept outside, and was pleased when he heard that his wife was able to come to join him here.
  He secured for her a first class passage and arranged that a servant should accompany her.  He desired her to come and it was his wish that they should live in peace together.  Upon her arrival she treated him with the greatest coldness.  He had a home ready for her. Shortly after she arrived in Shanghai he heard her tell one of the children "your father is not a man; he is a devil."  He then thought that it was time to put the children into a convent, not wishing to subject hem o such bad influence, as that of their mother.  She did not oppose the step and he and the petitioner each took a child to the convent.  It was at this time that he suggested to her to enter the convent herself, offering to pay her board and give her $8 a month besides, but she refused, and there were continual rows with her in the house.  Several times when he came home he found the children crying and once found one of them shut up alone in a room weeping bitterly.
  Cross-examined by Mr. Robinson - I consider this incompatible with natural discipline.  I had forbidden my wife to punish the children.  I was not specially angry at Hangkow when the amahs left.  Before they left I had told my wife that I would discharge them if they did not do their work properly.  I do not altogether deny that I have used menaces towards her at Hankow, I don't think it ever occurred at Ha know, except once when I came home and found her absent.  The only time I struck her was once when she bit me.  In one of her fits of temper she had bitten me and I made up my mind that if she repeated it I would chastise her.  She repeated the violence and I slapped her on the face, and I think it did her good too, for she has not repeated the offence.
  [The respondent here read portion of a letter from Dr. Begg of Hankow wherein he expressed an opinion that the petitioner was desirous of joining the respondent in Shanghai.] She has frequently disobeyed me in small domestic matters, showing that she had no fear of cruelty on my part.  She told one of the children that I was not a man but a devil.  When we were first married I suppose she liked me; by marrying I secured to her and any children that might be born, whatever property I might leave after my death.  I was in very bad health at the time.  I offered to send her to a convent and give her $300 down and $10 a month.  I will not swear that I have not threatened her more than twice, I may have done so, but have no recollection.  I did strike her once, and I have no reason to regret it, as I think it improved her.  I tried to procure an amah who could be a companion to her, and sought to make her life comfortable in every way.
  Edward V. Calver was sworn and said that he was an Assistant Examiner in the Imperial Maritime Customs.  He remembered on one occasion at the Temperance Hall the respondent telling him that he had seen a Mrs. Caputa who stated that the petitioner had recovered, and was able to come to Shanghai, whereupon the respondent said that he was very glad.  Witness was with the respondent when he met his wife and family at the steamer and he seemed very pleased to see them.  On one occasion witness asked the respondent to go to the theatre, but he refused saying that as his wife had only recently come to Shanghai, he did not like to leave her. Later on he sent witness a chit saying that when he got home his wife accused him of following some girls and she did not believe that he (respondent) had been at witness's house, and concluding by asking witness to come over at once and they would go to the theatre.
  The respondent was called and in reply to the bench said - My salary is Tls. 100, equal to about $150, Mexican, a month.  The Inspector-General does in some instances grant a bonus in case of good conduct, but no one has a right to expect it.  I cannot say that I expect a bonus.  It was refused me about a year ago, I would not swear that I have given up the expectation of a bonus.  I have once received a bonus of about $1600.
  I am registered in the U.S. Consulate here.  I left New York when I was about eleven years old.  I have property in Washington Territory and suppose that I may be considered a citizen of that Territory.  My father was a native of New York, where I was also born.  My children are aged 6, 4 and 2 years; their board costs are $20 a month, and clothes about $25 each a year.
  Petitioner's Counsel stated that he made no claim in respect of the children.
  His Honour reserved judgment.
March 17th.
JUDGMENT:
 This is a bel for divorce begun by libellant who was intermarried with the respondent on 3rd February 1880, as their marriage certificate shows.  Three children are the offspring of this marriage, aged respectively six, four and two years.
  The libellant alleges as cause for divorce both adultery and cruelty, on the part of respondent, and prays that there may be a decree a vincula matrimonii, and alimony allotted her for one thousand Mexican dollars.  The defendant in his answer admits the allegation of adultery, but denies the cruelty.  He prays that in case the bonds of marriage are dissolved, alimony to the extent of five hundred Mexican dollars may be allotted libellant and that the custody of the children be awarded him.
  In the consideration of the questions involved in these proceedings it is important that the utmost circumspection be exercised and every precaution taken, as the marriage relation is the foundation of all civilized society, and looseness in contracting and ready facility to dissolve are alike to be reprobated. Invested with the power to perform the ceremony, and the still graver responsibility of dissolving it, there is devolved upon this Court the imperative necessity of caution, and scrutinizing most carefully the grounds upon which the divorce is sought, and to protect the rights not only of the parties thereto, but of their innocent children, the victims of their family contention and disruption.  What must be effected if possible, is first to protect the right of the parties not before the court, but liable to be affected by the decree.  Second to guard the interests of the public as to morals; and thirdly and chiefly to see that the status of those before the court who are the parties of record is properly determined or established.  In this spirit I approach the discussion of the issues raised.
  Is the adultery proven? The admission of the respondent in the pleadings is not sufficient; nor his testimony, that he had committed adultery four or five times.  The ordinary principle of default does not hold in a divorce suit; that is supersedes the necessity of proof. "There must be a complaint in due form for a case authorized by law supported by due proof." [2nd Bishop on Marriage and Divorce, Sect. 235.] Every allegation must be proved the same although contested. [Graves v. Graves 2 Page 62], [Hawes v. Hawes, 33 Ill. 286.] What is the proof? The boy Wong Ai Ching who has been in the employment of the respondent for several months in Shanghai testified directly to the point.  In addition to this we have the declaration of respondent to libellant, and to the Interpreter of the Court.  The allegation of adultery, is proven beyond question.
  As to the allegation of cruelty the learned counsel for libellant argued that the repeated menaces of respondent the shaking of his fist in her face from time to time coupled with the fact that some three years ago he struck her afford sufficient evidence of cruelty to sustain the allegation. He furthermore contends that although the striking was condoned, that the recent act of adultery revives the act of cruelty and cited in support the case of Palmer v. Palmer [29 Law Journal 124].  This doctrine is correct by English law as laid down in those case, but I have found no American authority that sustains it.  Even if it should be accepted as doctrine by our law, there must have been no violence inflicted in mutual contest between husband and wife. [Bishop on Marriage and Divorce, Vol. 1, Sect. 734.] In other words if the wife is equally at fault in producing the act of cruelty it presents a different complexion.
  The act in Palmer v. Palmer was entirely on the part of the husband.  In this case the evidence is that the wife had in a fit of temper hit him and in consequence he struck her, nor is there any evidence that she was first in fault which would have altered the legal effect of the blow.  
  Now as to the allegation of cruelty on the whole.  What is cruelty considered in relation to a suit for divorce? Lord Stowell in the celebrated case of Evans v. Evans [4 Eng. 2 c. 310,] has defined it in such a luminous manner that his definition has been adopted by all English and American Courts.  He says as to the facts which constituted it:
They affect not only the comfort, but they affect the health and even the life of the party.
Again,
It is the duty of courts and consequently the inclination of courts to keep the rule extremely strict.
Again,
The causes must be grave and weighty and such as show an absolute impossibility that the duties of married life can be discharged.
Again,
What wounds the mental feelings is in few cases to be admitted when not accompanied with bodily injury either actual or menaced.
And Lord Burham in Patterson v. Russell [7 Bell App. Cases 367] says:-
Furthermore any conduct wards the wife which leads to any injury either creating danger to her life or danger to her health are sufficient grounds for divorce. [Bishop on Marriage and Divorce, Vol. 1, Sec 717] describes cruelty to be such conduct "in one of the married parties as for the reasonable apprehension of the other, or in fact renders co-habitation physically unsafe to a degree justifying a withdrawal therefrom.
  There may also be forms of physical injury involving no violence, and any one of these is equally legal cruelty, such as an apprehension of violence, or withholding comforts and conveniences of life whereby health is injured." These definitions are given to see if any one of them fits the facts of the case at bar.
  The respondent married libellant just before the birth of their first child to legitimize it.  He has ever given his wife the conveniences of life, provided her with servants, and whenever ill, afforded her medical attention, and while admitting that he struck her some years ago, said that it was in consequence of her having attacked him first. He also admits that at times he did shake his fist at her, but it was because she harassed and quarreled with him, being possessed of an ungovernable temper.  While these things are admitted there is nothing to show that he has ever again inflicted personal violence upon her, or has ever neglected her, or failed to provide her with the comforts and conveniences of life and it is in evidence that she came to him of her own accord from Hankow at the latter part of last year, where they had been living together and where he had left her to come to Shanghai, she being too unwell to accompany him.  It is also in evidence that he exhibited great pleasure on meeting her when she arrived. Since her arrival here four or five months ago they have lived a very disagreeable life, continually quarrelling and bickering with each other, but there is not a particle of poof that he had treated her cruelly. The allegation in the title of cruelty is not sustained by the evidence.
  The next allegation is a demand for 1,000 Mexican dollars for alimony. Alimony is "The provision ordered for the maintenance of a woman divorced from the bond f matrimony out of her late husband's estate." It is a wise and just provision; for the wife made thus in a certain sense a widow, should not ordinarily b set back simply where she stood in property when she entered the marriage." What is the underlying principle which controls courts in determining the basis on which to allot alimony?  And after determining this.  What shall be the amount in this particular case? The rule with regard to the former is that the wife is entitled to a support corresponding to the rank, fortune and standing of her husband. (2nd Bishop, Marriage and Divorce, Sec.445.) Nor does it matter from what station or condition of life he may have taken her, consequently in dissolving the bonds of their marriage, libellant's claim for alimony should not correspond to her former, but present condition and station in life, at the same time in estimating what would be proper alimony, it is but reasonable and just to consider the probable expenditure which would hereafter keep her in comfort, and supply all her wants.  
  Now as to the amount.  This depends on the financial condition and prospects of respondent.  Libellant asks for a gross sum. The usual rule is to judge the alimony by the income of the husband.  There is however no objection to fixing a gross sum if circumstances warrant.  In this case the parties are natives of different countries, not congenial in habits and modes of living.  He is furthermore in a service where he is liable to be ordered from place to place through this extensive empire, and might at time be so situated as to find it impossible to remit promptly, either monthly quarterly or half yearly payments.   Then too her interests are carefully guarded in this action by a conscientious and experienced proctor who in her behalf asks that the sum be fixed in gross.  
  Under these circumstances there is no reason which it should not be so fixed.  Is $1,000 Mexican dollars a proper amount? To ascertain the facts as to respondent's property a reference was ordered to be held by the clerk of this curt and the sworn statement of respondent was submitted by the clerk showing real and personal property to the amount of $1,400.  The earnings of respondent as set forth in the libel were admitted by him to be correct.  These earnings depend on his giving satisfaction to his employers, and the continuance of his health.  The proctor for libellant contended that he would be entitled to a gratuity from his employers after a certain number of years, and that this should be considered.  No consideration will however be given to it, for although it appears, that at intervals there is some possible usage by which faithful servants of the most ably or organized or liberal system are paid bonuses, yet it is so dependent on circumstances and at the good pleasure of the controlling authority thereof that no calculation can be made that I will be necessarily paid, and respondent denies that he has any claim thereof.  As to fixing the amount of alimony a large number of American authorities hold that "each case must depend on its own particular circumstances."  Respondent has $1,800 in Mexicans per annum as his earnings and $1,400 of real and personal property.  There is no evidence that he derives any income from the latter, and out of the former he would have to support himself and the three children and educate them also, and these earnings are dependent on circumstances and not fixed in their nature like an income from investments.
  On the other hand the age of the wife (she being comparatively young) must be considered and humanity demands that she should not be left in such a condition as to be forced possibly to lead an improper life for want of proper support.  Then, too, it has been uniformly held unless varied by statute that the wife's right of dower ceases on divorce.  "On the man's death the (divorced) woman is not his widow, therefore no rights that the law gives to widows are hers."
  Considering these facts and in the absence of any absolutely fixed rule whereby to gauge the proper amount of alimony, I shall endeavour to do justice between libellant and respondent.  I do not regard one thousand Mexican dollars as an exorbitant sum considering respondent's property and his annual earnings, as at 8 per cent per annum it would not yield her more than sufficient for her support, having regard to her necessities.  This amount will be arranged in the decree to suit the circumstances under which respondent is placed.  
  The respondent prays that the custody of the children may be allotted to him; to this the libellant interposes no objection.  On the contrary her proctor admits the propriety and necessity thereof.
  It is therefore ordered, adjudged, and decreed that the libellant Paula Burrows alias Taiho Paula Burrows be divorced a vincula matrimonii from the respondent, Thomas Donaldson Burrows, and I do hereby pronounce and decree the said parties free from the bonds of said marriage.
  It is also ordered adjudged and decreed  that he custody of Mary Burrows, Sarah Burrows and Giulia Burrows the offspring of said marriage be committed solely to Thomas Donaldson Burrows.
  It is also ordered, adjudged and decreed that the respondent  do pay to Paula Burrows alias Taiho Paula Burrows as alimony the sum of one thousand Mexican dollars as follows; The sum of two hundred Mexican dollars forthwith; the sum of four hundred Mexican dollars twelve months from date of this decree with interest on eight hundred dollars at the rate of 8 per cent per annum, payable together with the said four hundred dollars at the above month and date, and the further sum of four hundred Mexican dollars two years from date of this decree with interest at 8 per cent per annum, on said amount from maturity of date of payment of  the former four hundred dollars, and proper security for the deferred payments will be given by respondent to the clerk of the Court.
  It is ordered, adjudged, and decreed that in consideration of this alimony thus allotted to libellant she will execute a release to respondent of all her rights and interests in his property.
 It is ordered, adjudged, and decreed that the fee of libellant's proctor and the costs of these proceedings be taxed against the defendant.
  After the judgment had been delivered the respondent who expressed himself quite satisfied with the decree, offered in addition to the sum named herein, to pay the libellant $60 a year if she returned to the convent at Hankow, where he said she would be perfectly happy; and promised to pay that sum as long as she continued of good conduct and unmarred.
  Mr. Robinson thanked the respondent for his generous offer, and said that he believed his client was willing to return to the convent.
  The parties then left the Court in conversation together.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School