legitimate children. A marriage may be annulled for the fourth cause above mentioned, during the life of the parties, on the application of the party whose consent was unduly obtained, provided there has been no subsequent voluntary cohabitation as husband and wife. The custody of the issue of such a marriage is to be given to the innocent parent, and a provision for their education and maintenance may be made out of the estate of the guilty party. A marriage is to be annulled for the fifth and last cause above mentioned, only on the application of the injured party, and the suit must be brought within two years from the solemnization of the marriage.a

These cases are all founded on the ground of the nullity of the marriage contract, for causes existing at the time it was formed; but there is one other case in which the marriage contract may be dissolved for a cause accruing subsequently. During the period of our colonial government, for more than one hundred years preceding the revolution, no divorce took place in the colony of New-York; and for many years after New-York became an independent state, there was not any lawful mode of dissolving a marriage in the lifetime of the parties, but by a special act of the legislature. This strictness was productive of public inconvenience, and often forced the parties, in cases which rendered a separation fit *and necessary, to some other state, to avail themselves of a more easy and certain remedy. At last, the legislature, in 1787, authorized the court of chancery to pronounce divorces a vinculo, in the single case of adultery, upon a bill filed by the party aggrieved. As the law in New-York now stands, a bill for a divorce for adultery, committed by either husband or wife, can be sustained in three cases only; (1.) If the married par

*98

a

■ N. Y. R. S., vol. ii. p. 142, 143. sec. 21-33. The Revised Statutes of Vermont, 1839, p. 322, 323, contain the same provisions as the New-York statute relative to the above cases of divorce, and the jurisdiction is vested in the supreme court.

ties are inhabitants of the state at the time of the commission of the adultery: (2.) If the marriage took place in the state, and the party injured be an actual resident at the time of the adultery committed, and at the time of filing the bill: (3.) If the adultery was committed in the state, and the injured party, at the time of filing the bill, be an actual inhabitant of the state. If the defendant answers the bill, and denies the charge, a feigned issue is to be awarded, under the direction of the chancellor, to try the truth of the charge before a jury, in a court of law. Upon the trial of the issue, the fact must be sufficiently proved by testimony, independent of the confession of the party; for, to guard against all kinds of improper influence, collusion, and fraud, it is the general policy of the law on this subject, not to proceed solely upon the ground of the confession of the party to a dissolution of the marriage contract. The rule that the confession of the party was not sufficient, unless supported by other proof, was derived from the canon law, and arose from the jealousy that the confession might be extorted, or made collusively, in order to furnish means to affect a divorce.b

If the defendant suffers the bill to be taken pro *99 confesso, "or admits the charge, it would be equal

New-York Revised Statutes, vol. ii. p. 144, sec. 38, 39. It was adjudged in New-Jersey, in the case of the State v. Lash, 1 Harrison's Rep. 380, that a married man is not guilty of adultery, in having carnal connexion with an unmarried woman. In Vermont an act of that kind, between such parties, is punished by fine and imprisonment as in cases of adultery. Revised Statutes of Vermont, 1839, p. 443. So in Tennessee and in some of the other states, the living together by unmarried persons in illicit connection is an indictable offence.

b Burns' Eccl. Law, tit. Marriage, sec. 11. Traité de l'Adultere, par Fournel, p. 160. Pothier, Contrat de Marriage, No. 517, 518. Baxter v. Baxter, 1 Mass. Rep. 346. Betts v. Betts, 1 Johns. Ch. Rep. 197. The New-York Revised Statutes, vol. ii. p. 144, sec. 36, and the Vermont Revised Statutes of 1839, p. 323, provide that no sentence of nullity of marriage can be pronounced solely on the declarations or confessions of the parties, but other satisfactory evidence of the existence of the facts, on which the decree is to be founded, must be required.

ly dangerous to act upon that admission of the bill, and the statute therefore directs, that the case be referred to a master in chancery, to take proof of the adultery, and to report the same, with his opinion thereon. If the report of the master, or the verdict of the jury, as the case may be, shall satisfy the chancellor of the truth of the charge of adultery, he may then decree a dissolution of the marriage; but this dissolution is not, under certain circumstances, to affect the legitimacy of the children. If the wife be the complainant, the legitimacy of any children of the marriage, born or begotten of her before the filing of the bill, are not to be affected by the decree; and if the husband be the complainant, the legitimacy of children, born or begotten before the commission. of the offence charged, are not affected by the decree, though the legitimacy of other children of the wife may be determined by the court upon the proofs in the cause.a The defendant, by way of punishment for the guilt, is disabled from remarrying during the life of the other party.b

The statute further provides, that if the wife be the complainant, the court is to make a suitable allowance, in sound discretion, out of the defendant's property, for the maintenance of her and her children, and to compel the defendant to abide the decree. The chancellor is also to give to the wife, being the injured party, the absolute enjoyment of any real estate belonging to her, or of any personal property derived by title through her, or acquired by her industry. If, on the other hand, the

■ N. Y. Revised Statutes, vol. ii. p. 145, sec. 40, 41. 43. 44. b Ibid. sec. 49.

c Pending a suit in chancery by the wife, or in the consistory court by the husband for a divorce, it is a general rule of ecclesiastical law that the court may, under proper circumstances, and in its discretion, allow the wife, by an order on the husband, a sum of money for carrying on the suit as well as for immediate alimony. 2 Dickens, 498. 582. Oughton, 306, tit. 206-209, sect. 7. Earl of Portsmouth v. Countess of P. 3 Addams, 63. Fournel Traité de l'Adult. 365. Burns, tit. Marriage, ch. 11. sect.

husband be the complainant, then he is entiled to retain the same interest in his wife's real estate, which he would have had if the marriage had continued; and he is also entitled to her personal estate and choses in action, which

she possessed at the time of the divorce, equally *100 as if the marriage had continued; and the wife loses her title to dower, and to a distributive share

in the husband's personal estate."

These are the statute provisions in New-York, on the

8. 2 Haggard, 199. 201. Mix v. Mix, 1 Johnson's Ch. Rep. 108. Denton v. Denton, Ibid. 364. The New-York Revised Statutes, vol. ii. 148, sect. 58, have expressly enforced this reasonable doctrine by declaring that in every suit for a divorce or separation, the court in its discretion, may require the husband to pay any sum necessary to enable the wife to carry on the suit during its pendency. But if the bill for divorce be filed by the husband, the wife will not be allowed alimony, or an order for monies to enable her to defend the suit, until she has by answer disclosed the nature of her defence. Lewis v. Lewis, 3 Johnson's Ch. Rep. 519. In North Carolina, the courts have no power to assist the wife in the above cases, pendente lite, and Mr. Justice Gaston questions the policy of giving any such power. Wilson v. Wilson, 2 Dev. & Battle, 377. I am entirely convinced, however, from my own judicial experience, that such a discretion is properly confided to the courts. In New Hampshire, alimony is understood to be a provision made to the wife upon a divorce a vinculo; and it not allowed in any other case. Parsons v. Parsons, 9 N. H. Rep. 309.

a N. Y. Revised Statutes, vol. ii. p. 145, 146. sec. 45-48. The Revised Statutes of Massachusetts, of 1835, part 2. tit. 7. ch. 76. sec. 27, 28; and of Vermont, 1839, p. 325, 326, give the court similar discretion on divorce, touching the care and maintenance of the minor children, and the restoration to the wife of her estate, and of alimony, if necessary, if she be the innocent party. So, in New-Jersey, the jurisdiction in all cases of divorce is in the court of chancery proceeding regularly by bill as in other cases. The bill may be filed, if either party was an inhabitant of the state at the time of the injury complained of; or where the marriage was in the state and the complainant a resident therein at the time of the injury and the filing of the bill;—or where the adultery was committed in the state, and either party a resident when the bill was filed. Elmer's Digest, 139. In the case of Charruaud v. Charruaud, in chancery before Assistant V. C. in 1847, NewYork Legal Observer, vol. 1. 134, it was adjudged that upon the principles of the common law, a divorce of the wife a vinculo for adultery annuls every provision made for her in marriage articles or a marriage settlement in the nature of jointure or otherwise, as well as any provision in articles executed upon a separation.

subject of a divorce a vinculo matrimonii; and it is requisite, if the marriage was solemnized out of the state, distinctly and certainly to make it appear upon the bill, that both parties were inhabitants of the state at the time of the commission of the adultery; or that the offence was committed within the state, and the injured party an actual inhabitant at the time of exhibiting the bill. It must also appear, if the parties were married within the state, that the complainant was an actual resident at the time of the offence, and of bringing the suit; and this means, that the party's domicil was here, or that he had fixed his residence animo manendi. Though the fact of adultery

a Mix v. Mix, 1 Johns. Ch. Rep. 204. Willamson v. Parisien, Ibid. 389. N. Y. Revised Statutes, vol. ii. p. 144. sec. 38. It was declared, in Indiana, by law, in 1829–1830, that the laws concerning divorce, applied only to citizens who had resided a year within the state. In Ohio, no petition for a divorce is sustained, unless the husband or wife applying has been a bona fide resident in the state for two years, and an actual resident at the time, of the county where the application is made. In that case the application is to be sustained, whether the marriage, or the cause of divorce, occurred within the state, or elsewhere. Statutes of Ohio, 1824, 1827. In Michigan, the petitioner in equity for a divorce must have been a resident of three years. Act of April 4th, 1833. So in North Carolina, in application for a divorce, the party applying must have resided within the state for three years, immediately preceding the filing of the petition or bill, unless it be in the case of a divorce a mensa for cruel treatment. There is this further check, that the facts forming the ground of the complaint in every case must have existed to the knowledge of the party at least six months prior to the suit. 1 N. C. Revised Statutes, 1837, p. 240. In Missouri, the petitioner for a divorce must have had a permanent residence of one year, and the cause for it must have happened within the state. R. S. of Missouri, 1835, p. 225. In Maine, it is held not to be necessary, as a foundation of jurisdiction in a suit for a divorce, unless made so by positive statute, that the fact of adultery should have been committed within the state, in whose tribunals a decree of divorce is sought for that cause. Harding v. Alden, 9 Greenleaf's Rep. 140. The Vermont statute has wisely guarded against imposition and abuse of jurisdiction on this subject by declaring that no divorce shall be decreed for any cause, if the parties had never lived in the state as husband and wife; nor unless the libellant had resided in the state for one year next preceding the suit; nor if the cause accrued out of the state, unless the parties had, before it occurred, lived as husband and wife in the state; nor unless one of them was then