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law, we find it stated, in Evans v. Evans,* that it is necessary there should be a reasonable apprehension of bodily hurt. The courts keep the rule very strict. The causes must be grave and weighty, and show such a state of personal danger as that the duties of the married life cannot be discharged. Mere austerity of temper, petulence of manners, rudeness of language, a want of civil attention, even occasional sallies of passion, if they do not threaten bodily harm, do not amount to that cruelty against which the law can relieve. The wife must disarm such a disposition in the husband by the weapons of kindness.

This being the rule of the English courts, it would appear that divorces a inensa are placed, by the statute of New-York, on rather broader ground. They aie not only for cruelty, but generally for such conduct on the part of the husband towards his wife, as renders it unsafe and improper for her to cohabit with him and be under his dominion and control. Probably the word unsafe, in our statute may mean the same thing as the reasonable apprehension of bodily hurt in the English cases.b It was considered, in the case of Barrere v. Barrere," that the danger or injury must be serious, and the slightest assault or touch in anger was not, in ordinary cases, sufficient. It was likewise held, in that case, that the separation need not be declared to be for any specific time.

but may be left general and indefinite, with *127 *liberty to the parties to be reconciled when they

please, and to apply to be discharged from the de

* 1 Haggard's Consist. Rep. 35.

b 1 Ibid. 364. 409. vol. ii. p. 148. Neeld v. Neeld, 4 Haggard's Eccl. Rep. 363. Pothier, Traite du Contrat de Marriage, sec. 509. 2 Mass. Rep. 150. 3 Ibid. 321. 4 Ibid. 587. Finley v. Finley, 9 Dana's Rep. 52. But it is cruelty, in judgment of law, if the wilful conduct of the husband exposes the wife to bodily hazard and intolerable hardship. D'Aguilar v. Aguilar, 1 Haggard's Eccl. Rep. 773.

« It has been Bo understood in Mason v. Mason, 1 Edw. Ch. Rep. 292.

« 4 Johns. Ch. Rep. 187.

cree. The decree of divorce is always, by the canon law, sub spe reconciliationis.*

The statute above referred to seems to have considered the wife as the only infirm party who stands in need of such protection, for it confines the divorce a mensa, for cruelty, desertion, or other improper conduct, to such conduct in the husband ;b but the English ecclesiastical law makes no such distinction, and divorces are granted, on a bill by the husband, for cruel usage by the wife.0 Upon these separations from bed and board, the children that the wife has during the separation, are bastards, for due obedience to the decree is to be presumed unless the contrary be shown.d If, however, cohabitation between the husband and wife existed, the presumption of illegitimacy is destroyed. This is the general law; and when the New- York Re»ised Statutes6 declare, that a child begotten and born during the separation of its mother from her husband, pursuant to a divorce a mensa et thoro shall be deemed a bastard, it is to be taken, as I apprehend, subject to the same qualifications which accompanied the general rule.

These qualified divorces are regarded as rather hazardous to the morals of the parties. In the language of the English courts, it is throwing the parties back upon society, in *the undefined and dangerous charac- *128 ters of a wife without a husband, and a husband without a wife. The ecclesiastical law has manifested

Burm' Eecl. Law, tit. Marriage, ch. ll,sec. 4. Oughton's Ordojud. tH. 215, sec. 3. Bynk. Q. Jur. Prir. b. 2, ch. 8.

t, Vanveghten v. Vanveghten, 4 Johns. Ch. Rep. 501. By a statute of New-York, of April 10th, 1824, ch. 205. sec. 12, the court of chancery was authorized to decree a divorce a mensa, on the complaint of the husband, and that provision is deemed to be in force, notwithstanding the subsequent general provision in the reeised laws, confining that remedy to the wife. Perry v. Perry, 2 Paige's Rep. 501.

'- Kirkman v. Kirkman, 1 Haggard's Consist. Rep. 409.

< St- George v. St. Margaret, 1 Salk. 123.

• Vol. i. p. 641.

Vol. II. 12

great solicitude on this subject, by requiring, in every degree of separation, an express monition to the parties " to live chastely and continently, and not during each other's life, contract matrimony with any other person;" and security was formerly required from the party suing for the divorce, to obey the mandate.1 1 The statute allows the husband, on such a bill by the wife, for ill conduct, to show, in his defence, and in bar of the suit, a just provocation in the ill behaviour of the wife, and this would have been a good defence, even without the aid of the statute.1* And on these separations from bed and board, the courts intrusted with the jurisdiction of the subject, will make suitable provision for the support of the wife and children, out of the husband's estate, and enforce the decree by sequestration; and the chancellor, in New-York, may exercise his discretion in the disposition of the infant children, and vary or annul the same from time to time, as circumstances may require.0 I apprehend there is not, in the United States, any essential difference in principle, or departure from the doctrines of the English law, on the subject of divorces a metisa ct thoroA

* Burns' Eccl. Law, tit. Marriage, ch. 11, sec. 4. Barrere v. Barrere,4 Johns. Ch. Rep. 196.198. Vanveghten v. Vanveghten, ibid. 501.

New-York Revised Statutes, vol. ii. p. 147, sec. 53. Waring v. Waring, 2 Haggard's Consist. Rep. 154.

0 New-York Revised Statutes, vol. ii. p. 147, sec. 54, 55. Ibid. 148, sec. 59, 60. Barrere v. Barrere, 4 Johns Ch. Rep. 197. In Shelford on Marriage and Divorce, p. 592—607, the cases are collected on the exercise of the equitable and discretionary jurisdiction of the ecclesiastical courts, in awarding permanent alimony to the wife, on decrees of divorce a mensa et thoro. In an aggravated case a moiety of the husband's property has been given.

d Reeve's Domestic Relations, ch. 16. Thompson v. Thompson, 2 Dallas, 128. Warren v. Warren, 3 Mass. Rep. 321. Statutes of Delaware, 1832, ch. 144.

LECTURE XXVIII.

OF HUSBAND AND WIFE.

The legal effects of marriage, are generally deducible from the principle of the common law, by which the husband and wife are regarded as one person, and her legal existence and authority in a degree lost or suspended, during the continuance of the matrimonial union.s From this principle, it follows, that at law no contracts can be made between the husband and wife, without the intervention of trustees; for she is considered as being sub potestate biri, and incapable of contracting with him; and except in special cases, within the cognizance of equity, the contracts which subsisted between them prior to the marriage. are dissolved.1" The wife cannot convey lands to her husband, though she may release her dower to his

* Co. Litt. 112. a 187. b. Litt. sec. 168. 291. 1 Blacks. Com. 441. The jus mariti, where it is not restrained by special contract. exists with equal force and extent in the Scotch law. The husband acquires the same power over the person and property of the wife, and she is subjected to similar disabilities. Erskine's Inst. b. 1. tit. 6. sec. 19. 22. Stair's Inst. b. 1. tit. 4. sec . 13. 16.

"The disability of husband and wife to contract with each other, is founded in the wisest policy, and is an essential muniment to the inviolability of the nuptial contract, and to the maintenance of the institution of marriage. The consequent dependence of the wife upon the husband, and the continued liability of the husband to support the wife, and the other incapacity of the parties, by their own mere will, to absolve each other from the reciprocal rights and dnties which the law of their contract imposes upon them, furnishes powerful motives to the promotion of harmony and peaceful cohabitation in married life. Marshall, J., in Simpson v Simpson, iDana's K. Rep. 142.

grantee; nor can the husband convey lands by deed directly to the wife without the intervention of a trustee.* The husband may devise lands, or grant a legacy to his wife, for the instrument is to take effect after his death; and by a conveyance to uses, he may create a trust in favor of his wife,b and equity will decree performance of a contract by the husband with his wife, for her benefit.0 The general rule is, that the husband becomes entitled, upon the marriage, to all the goods and chat130* tels of the wife, and to the rents and profits *of her lands, and he becomes liable to pay her debts, and perform her contracts.

According to the plan of these general disquisitions, I cannot undertake to enter minutely into the numerous distinctions and complex regulations which appertain to the relation of husband and wife. My purpose will be answered, if I shall be able to collect and illustrate the leading principles only; and that I may be able to do this clearly, and to the satisfaction of the student, I shall consider the subject in the following order:

1. The right which the husband acquires by marriage in the property of the wife:

2. The duties which he assumes in the character of husband:

3. How far the wife is enabled by law to act during coverture, as a feme sole:

* Co. Litt. 3. a. Litt $ 677. Martin v. Martin, 1 Greenleaf's Rep. 394. Rowe v. Hamilton, 3 Greenleaf's Rep. 63. Stickney v. Borman, 2 Barr. Penn. R. 67. Sheppard v. Sheppard, 7 Johns. Ch. 60. But though such a conveyance would be void at law, equity will uphold it in a clear and satisfactory case. Wallingford v. Allen, 10 Peters' Sup. Court Rep. 583. See infra, p. 162. But a court of equity has no jurisdiction, even with the consent of the wife, to transfer to her husband personal property settled in trust for her, and to be hers absolutely on surviving her husband. Richards v. Chambers, 10 Vesey, 580.

b Co. Litt. 112. a.

'Moore v. Ellis, Bunb. Rep. 205. Livingston v. Livingston, 2 Johns. Ch. Rep. 537. Shepard v. Shcpard, 7 Johns. Ch. Rep. 57.

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