filed the following dissenting opinion :
The decree from which this appeal is taken annulled the marriage of the complainant and defendant, and divorced the former from the latter, “ a vinculo matrimonii.” .It ordered and decreed that the children of the parties divorced, he committed to the care and custody of the complainant, their father, until they shall respectively attain their legal majority; and further adjudged and decreed, that the deed or articles of separation mentioned in the proceedings, dated the 31st day of October, lSW, between the complainant, John D. Kremelberg, of the one part, and the respondent and Joseph W. Jenkins of the other part, he vacated and annulled. This decree implies and involves the exercise of the several and respective powers, both of Courts of Divorce and Courts of Chancery.
Matrimonial causes belonged originally to Ecclesiastical Courts, by which the power of divorce was exclusively exercised. The temporal Courts, had the sole cognizance of examining and deciding directly upon all the temporal rights of property. Shelford on Mar. & Divorce, ch. 6, p. 459, Eng. Edition, London, 1841. Ecclesiastical Courts rarely recognized the existence or validity of deeds of separation, and never exercised the power of vacating them. On the other hand, it is the peculiar province of Courts of *567Chancery to enforce or set them aside. But Ecclesiastical Courts, in determining the right of either party to divorce, incidentally considered the execution of a deed of separation as an important fact in the case of the complainant. Prior to the adoption of the Constitution of 1851, the granting of divorces was a regular exercise of legislative power, notwithstanding the authority vested in the Courts of equity to divorce a mensa et thoro and a vinculo; but by the provisions of that instrument, and all succeeding Constitutions of this State, the General Assembly is prohibited from passing special Acts of divorce, thus indicating that the rights created by the sacred and solemn contract of marriage shall not be dissolved by arbitrary legislative will, however wisely directed; but only according to the principles of Courts of justice, long established, previously ascertained and judicially, administered.
It was said by this Court in J. G. vs. H. G., 33 Md., 406, that a Court of equity in this State, on applications for divorce “ sits, not in the exercise of its general and ordinary equitable jurisdiction, but as a Divorce Court; and must be governed by the rules and principles established in the Ecclesiastical Courts in England, wherein a similar jurisdiction has been exercised, so far as they are consistent with the provisions of the Code.”
Until the year 1858, the Ecclesiastical Courts of England possessed no power to divorce “a vinculo” for adultery, but could only grant divorces “a mensa et thoro;” hence, for the law of divorce “ a vinculo,” we must look to the law of Parliment, which to a certain extent may be regarded as the highest Court in England in matrimonial causes, whether they exercise their power in a legislative or judicial capacity.
In the comparatively brief period which has elapsed since the .Courts of equity of this State, have acquired jurisdiction in cases of divorce “ a vinculo,” few cases, if any, have occurred, distinguishing the exercise of the *568power of total divorce, from that of partial divorce, or establishing rules which would govern in the one, and. do not in the other. The effect of the decree in the one case, being widely different and more extensive than in the other, Courts would be greatly misled, if they indiscriminately adopted rules designed in cases for partial divorce, as applicable to cases for a total divorce.
Upon the question of the effect of the deed of separation upon the right to a divorce, this Court declared in the case before cited from the reference to the precedents in the English Ecclesiastical Courts, “it appears to have been long settled, that a voluntary deed of separation between husband and wife, is not ‘ per se ’ a bar to' a suit in the Ecclesiastical Court for a restitution of marital rights, or to a petition for divorce,” citing Durant vs. Durant, 1 Hagg. 733, (3 Eng. Eccl. Rept., 310;) Beeby vs. Beeby, 1 Hagg. 789, (3 Eng. Ecc. Rept., 338;) Westmeath vs. Westmeath, 2 Hagg. Supp., 1, (4 Eng. Eccl. Rept., 238;) Spering vs. Spering, 3 Swab. & Trist., 211; Hunt vs. Hunt, 32 L. J., 168.
“Some cases (the Court continues) have arisen upon applications for divorce in the Ecclesiactical Courts, in which a voluntary deed of separation between the parties, has been considered in connection with lapse of time, and other circumstances as sufficient to show the application was not made bona fide for the cause assigned; but for some sinister or collateral purpose, and the application for that reason, has been denied.” Such were the cases of Matthews vs. Matthews, 1 Swab. & Trist., 499, and Williams vs. Williams, 35 Law Journal, 85.
In Matthews vs. Matthews, the deed of separation, was executed in 1853, between George Matthews of the one part, and Stephen Clark, brother of Ann Matthews the wife of the other, reciting that differences had arisen between Matthews and his wife, and they were mutually desirous to live separate ; that it had been agreed between *569Matthews, and Clark as the brother, and on behalf of Ann Matthews, that Clark should indemnify Matthews, against all liability for the debts of his wife, and that Matthews, in consideration of such undertaking, etc., would permit his wife to live apart as if she were feme sole, and have entire custody and control over her children. The wife petitioned in 1856 for a divorce on the ground of cruelty, committed by her husband prior to the deed. It was held, that although the lapse of time was not an absolute bar, yet taken in connection with the deed of separation, it showed, that it was not a hona fide application made for the protection of the wife, but for some collateral purpose, and that the Court ought not to grant the prayer of the petition. This case is strongly analagous to that now before us. The distinguishing features are, that the application for divorce proceeded from the wife, and not the husband, and the ground of complaint, was cruelty, not adultery.
From these authorities, which might be indefinitely multiplied to the same effect, it would appear, that however well grounded the charge,.if the complainant sleeps upon his rights, or, knowing his wrongs, enters into agreements and obligations, inconsistent with the presumption of their actual existence, or treats with others, upon the implication of their non-existence, he thereby waives his right to the remedies which the law otherwise extends to him. And although deeds of separation, are not per se, a plea in bar to an application for a divorce, according to these authorities, yet, united with the lapse of time, .unexplained and unaccounted for, they constitute sufficient ground to justify the Court in refusing the extreme remedy.
In applications for divorce, the question for the consideration of the Courts, is not solely the guilt or innocence of the accused, but whether the complainant has so demeaned himself or herself, as to be entitled to the intervention of the Court.
*570Although the guilt of the accused must he satisfactorily established, to entitle the complainant to a divorce, it does not necessarily follow in any particular case, that the Court should decide that question in determining whether the complainant is entitled to relief. The controlling preliminary inquiry, is the conduct of the complainant after his supposed wrongs, involving it may be his belief in the truth of the charge, and concluding his rights in the premises, according to the covenants and agreements he may have entered into, and the vigilance he has shown in asserting them.
The bond of marriage cannot be dissolved without involving both the innocent and guilty, in opprobrium and disgrace. The children of the marriage (if any) must incur more or less of the stigma which attaches to the delinquent parent. Humanity, justice and sound policy dictate, that all deeds, and covenants, devised and executed for the purpose of preserving domestic peace and private character from reproach, protecting the innocent issue from the dishonor of .defiled nuptials, and securing the sacred houd of society from judicial dissolution, should he favored and enforced.
As we have said the Ecclesiastical Courts of England, possessed no power to divorce “ a vinculo,” for adultery, until the year 1858; prior to which adultery was a cause of divorce “ a mensa et thoro’’ and deeds of separation, were not per se, a bar to such divorces. But, in the House of Lords, articles of separation were held to form an insuperable bar to the special interposition of the Legislature, on an application for a divorce. Shelford on Mar. & Div., 383; 33 Hans. Par. Deb., 1306, 1308, in Esteny Divorce, 1798. In this case, the articles were made in ignorance of the wife’s gross misconduct, and before it had occurred, yet the Lord Chancellor said the articles formed an insuperable bar to any divorce, and the circumstances of collusion which appeared in the case rendered it the duty of *571the House to reject the application. Ibid. What the circumstances of collusion in that case were, which induced the Chancellor to advise the rejection of the application, is not reported; hut it is obvious they were independent of the articles which are spoken of as a distinct ground of objection. These being made before the misconduct of the wife, and in ignorance of it, must have operated per se, according to some rule of policy, which Parliament had adopted and prescribed. “ The husband was held to be deprived of his right to a divorce in Parliament, by a letter offering £200 a year for the separate maintenance of his wife, and agreeing to articles of separation, and to give up the adulterous connexion.” Pang’s Divorce, House of Lords, 28 Mar., 1838; Shelford on Mar. & Divorce, 383.
The great end and motive for the execution of articles of separation between husband and wife is, to avoid litigation, suppress scandal, provide for the maintenance of the wife, the support and education of the children (if any) and to exonerate the husband from future liabilities. To compose domestic strife, by private compact and treaty of peace, rather than resort to the arbitrament of Courts.
The maintenance of the wife is a substitute for alimony, which is always granted her when she is divorced upon her application, and which is always forfeited when she is divorced “causa adulterii.”
A deed, reciting that husband and wife have had unhappy differences and “ have been separated, arid living separate and apart for nearly a year past, and still are, and in order to avoid painful litigation, and for the happiness and interest of their children, and of all concerned have agreed as a settlement of all differences and causes of- differences between them, to continue to live separate and apart henceforth, on the terms set forth therein,” is a solemn and perpetual covenant, not to be annulled, except in extreme cases. It is an express admission that the wife is, as wife, or by virtue of covenants and considerations *572therein contained, on her part, or in her behalf, entitled to the provision therein made for her, and to enjoy it in peace and quietness, without reproach or litigation. It is a pledge, that for the happiness and interest of their children, all differences and causes of difference should be buried in oblivion.
In weighing the claims of the husband, to the remedy of divorce “a vinculo,” which depends as much upon the conduct of the accuser, as that of the accused, such a deed must be considered as a most controlling circumstance, whether we regard it as an implied admission that the wife is innocent of the most odious offence she can commit against her husband; or as a covenant for valuable considerations, to waive all such imputations, and secure her peace and quietness, with an adequate allowance .during her husband’s life. Standing alone, without connection with prior or subsequent relations between the principal parties, the provisions of the deed are irreconcileable with the theory, that the grantor then believed himself the victim of conjugal infidelity. Taken in connection with the declarations and conduct of the complainant, prior and subsequent to the execution of the deed of separation, such a conclusion is incredible.
At the interview between the complainant and his father-in-law, and brother-in-law, immediately upon his return from Europe, in a family council in which his domestic grievances were first exposed to them personally; to the direct questions of both of these gentlemen, whether he meant to impute to his wife, dishonor or criminal conduct, he emphatically declared he did not. The probation of six months, under the surveillance of her stepmother, to which he subjected his wife, in order that he might in that time in the language of the bill of complaint, “ test Ms feelings towards her,” with the understanding, (according to the testimony of his sister-in-law) if her temper and general behaviour were good, that he would take her *573back as his wife; the lapse of fourteen months between the date of the alleged causes of divorce and the execution of the deed of separation with full knowledge of all that had transpired; the deliberate execution of the deed, containing provisions which virtually repudiated the main ground of accusation; acquiescence for two years and a half afterwards, in the terms of separation, and payment of the allowance stipulated, combined, constitute such an “ estoppel in pais,” as cannot be evaded or overcome.
On the other hand, regarded as a private treaty between the parties, made for a valid and good consideration, to protect innocence and infancy, suppress scandal, avoid litigation and preserve domestic peace, we can perceive no reason why it should be annulled and vacated. The weight of authority, in our opinion, decidedly forbids it.
“In Blount vs Winter and Winter vs. Blount, July 19th, 1781, the original bill was filed by trustees in marriage articles and the children of the marriage, against the husband and wife, and the cross-bill was filed by the husband against the wife and children—the original bill prayed a performance of the articles, and the husband by his answer to the original bill and by the cross-bill resisted the performance so far as the articles made provision for the wife, alleging and proving in the cross cause, that she lived separate from him in adultery. The Court was of opinion that this was not a reason for non-performance of the articles as to the wife, and made a decree accordingly in the original cause, and dismissed the cross-bill without costs.” Reg. Div. A, 1780, fol. 550; 3 Peere Williams, 276, note 2.
In the cases of Wright vs. Miller, in the Court of Chancery of New York, which were cross-bills to set aside certain conveyances of real estate, and two decrees affecting the same, the question of the effect of a divorce upon an annuity previously settled on the wife, was incidentally involved. The Chancellor said, “It was suggested by *574Mrs. Miller’s counsel that she received the annuity hy sufferance merely, and that it was cut off hy divorce. I apprehend that the divorce did. not affect it at all.” (See Sidney vs. Sidney, 3 P. Wms., 269; Blount vs. Winter, Id., 276, note by Cox; Field vs. Serres, 1 Bos. & Pul., New Rep., 121; Shelford on Mar. & Divorce, 421-2; Roper’s Husband & Wife, by Jacob, 134, 137,) 1 Sanford’s Chy. Rep., 126. The case of Jee vs. Thurlow, 2 Barn. & Cress., 547, is to the same effect. “ By a deed of three parts, between husband and wife, and trustee, reciting that differences existed, and that the husband and wife had agreed to live separate, the husband covenanted to pay an annuity to the wife during so much of her life as he should live, and the trustee covenanted to indemnify the husband against the wife’s debts, and that she should release all claim of jointure, dower and thirds. It was held that this deed was legal and binding, and that a plea hy the husband, that the wife sued in the Ecclesiastical Courts for restitution of conjugal rights, and that he put in an allegation and exhibits charging her with adultery, and that a decree of divorce ‘a mensa et thoro’ was in that cause pronounced, was not a sufficient answer to an action hy the trustee for arrears of the annuity.” The principal contention in this case was, whether the policy of the law would sanction a provision for future separation, but all the Judges, Abbott, C. J., Bayley, Holroyd, and Best, J. concurred that where separation had already occurred, and the husband had entered into covenants for the future, in consideration of covenants “in ease of the husband” the husband was hound unqualifiedly. Best, J., said, “Whatever opinions Judges may have entertained as to the policy or impolicy of such contracts as this, it would he a strong measure for us, on the mere ground of policy, to overthrow former decisions, when Lord Eldon, sitting in the House of Lords, did not feel himself strong enough to do so.”
*575In a very recent case in the Court of Exchequer, before Kelly, C. B., and Bramwell and Pigott, B. B., in an action upon a bond or deed whereby the defendant covenanted to pay trustees for the wife, during the joint lives of the husband and wife, and so long as they shall live separate and apart; it was held that the fact of the wife’s subsequent adultery and her divorce, and the consequent dissolution of the marriage by a decree, etc., are no answer to an action by the trustees for the arrears of the annuity. Kelly, C. B., said : “I am of opinion that the judgment
of the Court in this case should be given for.the plaintiff. It appears to me, all the authorities are one way. There is not a shadow of authority in favor of the proposition which Mr. Holker, on the part of the defendant, has contended for before us, that any Court of law can introduce words into a deed, so as to alter the express terms of the covenant contained therein.” 29 Laxo Times, N. S., 649.
Regarding this case from the standpoint in which the husband viewed it, when he executed the articles of separation, for high moral and valuable considerations, we can find no sufficient cause to authorize a Court of divorce to dissolve the marriage tie, or a Court of equity to vacate the solemn compact for the preservation of the interests and happiness of all concerned, and the maintenance of the mother, and education of their children. In the language of Chancellor Johnson, in the case of Brown vs. Brown, 5 Gill, 255, affirmed by this Court, having selected their own remedy by the execution of this deed, after an actual separation for years, no sufficiént reason has been assigned, why this Court should he called upon absolutely to dissolve the marriage.
“It is not alleged or proved,- that any circumstances have transpired since the execution of the deed which' render it necessary or proper that the relations of the parties as established by that instrument, shotild he changed, and the Court would he most reluctant to do so, especially in *576the manner and to the extent proposed hy this hill, unless a case of strong urgency was made out, as the effect of such a change upon the rights secured hy the deed, might occasion embarrassing, if not injurious consequences.”