Van Veghten v. Van Veghten

4 Johns. Ch. 501

• Court: New York Court of Chancery
• Decided: July 20, 1820
• Status: Published

Opinion

The Chancellor.

As the charges in the bill are denied, and not supported by proof, the foundation of the bill has failed. I cannot listen to the counter charges contained in the answer. The husband would not have been entitled to a divorce, even if such charges had been the ground of a bill exhibited by him, for that purpose. The statute authorizing a divorce from bed and board, for cruelty, desertion, or other improper conduct, applies only to a bill exhibited on the part of the wife. The common law has given to the husband sufficient power and control over the wife, to protect himself from such conduct. Nor can the Court take notice of any consent or desire of the defendant, in compliance with the wishes of the plaintiff, and make that the ground even of a qualified divorce from bed and board. It ought to be well understood, that the Court cannot lend its judicial aid and sanction to any such voluntary agreement. These qualified divorces from bed and board are dangerous enough, under all the checks and guards provi¿]et¡ by any decree. The early canons of the church (Burns, Eccle. Law, tit. Marriage, ch. 11.) directed that parties so separated, should not only live chaste, and without forming any new matrimonial contract; but even that no sentence should be pronounced, until security was given by the party requiring the decree, to obey this restraint. The law regards the marriage contract as a stable and sacred contract, of natural, as well as of municipal law. It is a contract juris gentium, and parties cannot lawfully rid themselves of its duties, at the pleasure of either, or of both of them. If we except the new law of France, and the new law of Prussia, alluded to on a former occasion,

* there is no such dangerous relaxation of the marriage tie, tolerated among the Christian nations. We must go in search of such loose notions of the obligation, to the half-civilized people of Asia, where polygamy prevails ; and where, as a consequence of this evil, and as a branch of the same baneful policy, we shall find the prevalence of an almost unlimited freedom of divorce. (Sale’s Koran, ch. 65. Elphinstone’s Caubul, b. 2. ch. 3. Institutes of Menu, ch. 9. s. 122 to 126. Colebrooke’s Hindu Law, vol. 2. p. 416 to 426. sect. 64 to 71. Marsden’s Sumatra, p. 221 to 234. Raffle’s Hist, of Java, vol. 1. 320. Stanton’s Ta-Tsing-Leu-Lee, sect. 116.)

Bill dismissed, without costs.

Ante, p. 194.

mensa etthoro, chicked,10 m-courage™ ™"

The contract of marriage is a stable ana sacred contract of natural as well as of municipal law.

is a contrzct juris gentium, and the parties cannot, at pleasure of either or both, get rid of the duties it imposes.