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To entitle the court to sustain such a suit, (1.) the parties must be, inhabitants of the state; (2.) or the marriage must have taken place in the state, and the wife must be an actual resident at the time of exhibiting the complaint; (3.) or the parties must have been inhabitants of the state at least one year, and the wife an actual resident at the time of filing the bill.a

These qualified divorces are allowed by the laws of almost all countries, and it is assumed that they prevail generally in these United States, in cases of extreme cruelty, though they are unknown in some of them, as for instance in New-Hampshire, Connecticut, Ohio, Indiana, and South Carolina. In England, they are allowed only propter sævitiam aut adulterium; and where there

is a separation *for such a cause, if the parties come *126 together again, the same cause cannot be revived.c

In determining what is sævitia, by the ecclesiastical

a Ibid. 146, sec. 50.

In Louisiana, the divorce a mensa leads to the divorce a vinculo, if the parties be not reconciled in two years. Savoie v. Ignogoso, 7 Louis. Rep. 281; and in Virginia in seven years; act of 1841. In Massachusetts, divorces from bed and board are allowed for cause of extreme cruelty in either party, and in favour of the wife when the husband shall utterly desert her, or grossly, or wantonly and cruelly refuse or neglect to provide (if able) suitable maintenance for her. Mass. Revised Statutes, 185. In Vermont, New-Jersey, Kentucky, Mississippi, Tennessee, Alabama, and Michigan, divorce a mensa et thoro may be granted for extreme cruelty, and in some of those states for wilful desertion for two years. Act of Michigan, April 4th, 1833. Lockridge v. Lockridge, 3 Dana's Ken. Rep. 28. Holmes v. Holmes, Walker's Miss. Rep. 474. Elmer's Digest, 140. Laws of Vermont, p. 364. 4 Aikin's Ala. Dig. 2d edit. 131. Statute Laws of Tennessee, 1836, p. 261. In the Dutch law and in Scotland, wilful abandonment of either party without due causes for a long time, is ground for a decree of divorce. Van Leeuwen's Roman Dutch Law, 85. Ersk. Inst. 6. 1. tit. 6, sec. 14. Divorces from bed and board were unknown to the ancient church, and were first established by the decrees of the council of Trent.

• Lord Eldon, 11 Vesey, 532. Cohabitation is not always a condonation for cruelty on the part of the husband under gross circumstances. Snow v. Snow, consistory court, London, Hil. 1842.

law, we find it stated, in Evans v. Evans,a 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 mensa are placed, by the statute of New-York, on rather broader ground. They are 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. 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

a 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, Traité 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 so understood in Mason v. Mason, 1 Edw. Ch. Rep. 292. d 4 Johns. Ch. Rep. 187.

cree.

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

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.c 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 Revised Statutese 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 characters of a wife without a husband, and a husband without a wife. The ecclesiastical law has manifested

*128

■ Burns' Eccl. Law, tit. Marriage, ch. 11, sec. 4. Oughton's Ordo Jud. tit. 215, sec. 3. Bynk. Q. Jur. Priv. b. 2, ch. 8.

b Vanveghten v. Vanveghten, 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 revised laws, confining that remedy to the wife. Perry v. Perry, 2 Paige's Rep. 501.

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

d St. George v. St. Margaret, 1 Salk. 123.

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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. 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.b 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. 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 mensa et thoro.d

↑ Burns' Eccl. Law, tit. Marriage, ch. 11, sec. 4. Barrere v. Barrere, 4 Johns. Ch. Rep. 196. 198. Vanveghten v. Vanveghten, ibid. 501.

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

© 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.

a 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. 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 viri, 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. The wife cannot convey lands to her husband, though she may release her dower to his

a 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 inviclability 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 duties 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, 4Dana's K. Rep. 142.

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