Burtis v. Burtis

The Chancellor. When New York became a vince of England, it was for some years, ruled by a governor, or a governor and council; and during that period, the governor either alone, or in conjunction with the council, seems to have exercised all magistracy, executive, legislative and judicial. During that period, one of the governors, Lovelace, granted four divorces ; of which, one was in 1670, and the other three in 1672. These are the only instances of divorce, which appear to have taken place in the colony, during the long period, in which New York was a province of — 564 — England. , In 1683, the people were admitted to a partid-’ ' Patlon °f the legislative power; and from that time, laws were enacted by the colonial legislature. The colony never had any court possessing jurisdiction of matrimonial causes, or power to grant divorces. No statute defining causes of divorce, or authorizing divorce, in any case whatever, was ever enacted-by the legislature of the colony. Some special applications for divorces, were made to the colonial legisla-1' ture ; but all such applications were refused. The govern- or of the colony, with the consent of the council, had power to establish courts of justice ; and all the courts of the colo- - ny, derived their origin from this source of authority. But no court having cognizance of matrimonial causes or divorces, was ever established in the colony ; no court of the colony exercised any such jurisdiction; and no law concerning divorce, was ever enacted by the colonial legislature. The four divorces granted by Governor Lovelace, must be regarded, as extraordinary acts of power, by a chief magistrate who possessed very great and indefinite authority; they were the acts of one governor; they stand alone, in the history and practice of the English colony; and they afford no proof of any law of the colony authorizing divorces. According to-all the information which I can obtain from records or otherwise, it appears, that no divorce took place in the colony of New York, during more than one hundred years, preceding the time when the colony became a state ; and that the only divorces which ever took place in the colony, were the four granted by Governor Lovelace, in 1670, and 1672. Thus, it appears, that the law of England concerning divorces and matrimonial causes, was never adopted in the colony of New York. It was not adopted in fact or in practice ; and it was never the law of the colony. By the constitution of the state, adopted in 1777, such parts of the common law of England, and of the statute law of England and Great Britain, and of the acts of the legislature of the colony, as together formed the law of the colony, on the nineteenth day of April 1775, were declared tobe the law of this state. The law of the colony, was thus adopted, as the law of the state. The law of England concerning — 565 — divorces and matrimonial causes, not forming a part of the law of the colony, did not become the law of the state. During more than ten years after the colony became a state, there was no law authorizing a divorce, in any case whatever. On the thirtieth day of March 1787, the legislature passed a statute, entitled an “ act directing a mode of “ trial, and allowing of divorces in cases of adultery.” The preamble of this law was expressed in the following terms. “ Whereas the laws at present in being within this state, re- “ specting adultery, are very defective, and applications have, 41 in consequence, been made to the legislature, praying their “ interposition: and whereas it is thought more advisable for “ the legislature to make some general provision in such ca- “ scs, than to afford relief to individuals, upon their partial “ representations, without a just and constitutional trial of the 11 facts.” This was the first law in this state, authorizing a divorce; and it was confined to the case of adultery. It continued to be the only law, until the ninth day of April 1813, when the legislature made a new and extensive provision for divorces. By the statute then enacted, the wife may obtain a divorce from her husband, where he has been guilty of cruel and inhuman treatment towards her, or such conduct as renders it unsafe and improper that she should cohabit with him; or where he has abandoned her and neglects to provide for her. The provisions last mentioned, were by a statute of the tenth day of April 1824, extended to bus-bands against their wives. Such is the history of our own law concerning divorces: and its actual state is found in these statutes now in force. I can not admit, that we have another code, on the same subject ; and that the laws of England concerning divorces, are also, laws of this state. The English law concerning divorces and causes of divorce, as it exists now, and as it existed while this state was a colony, is chiefly, the ecclesiastical law, and not the common law of that country. It is administered by judges and courts, whose jurisdiction has never existed, either in the state or the colony of New York; and it was evidently, regarded by our ancestors of the colony — 566 — and the state, as no part of the common law, which they adopted. Our statutes are clearly, original regulations, intended to authorize divorces in cases, in which no divorce could before be obtained. They define the causes for which divorces shall be granted; they give jurisdiction of those cases to this court; and they give no other jurisdiction. The specified cases are with some differences, causes of divorce by the laws of England; but these statutes are evidently, founded on the supposition, that the causes of divorce which they define, were not causes of divorce, by any preexisting law in force in this state. To consider these statutes as an adoption of the English law of divorces, would be a violent perversion of the language and intention of the legislature. Such a construction of these laws, would in effect, declare, that statutes authorizing divorces, in certain cases particularly specified, also authorize divorces, in a multitude of other cases not specified. Had the legislature considered the English law of divorces, as the law of this state, they would probably, have authorized some tribunal to administer that law; but they have conferred no such authority; and they have cautiously, limited and regulated the power of divorce, as an innovation upon the preexisting law of the state. If the power to divorce for one pause, could imply a power to divorce for a different cause, the statute of 1787, authorizing divorces, for adultery, might have authorized divorces for cruel treatment or desertion; and the subsequent statutes, would have been unnecessary. But the legislature entertaining no such opinion, have advanced by successive steps, and have authorized divorces, not by adopting or recognizing any foreign law, but by their own acts of legislation. The causes of divorce and the jurisdiction of this court, are equally prescribed by these statutes ; the jurisdiction is given in the defined cases; and these laws confer no jurisdiction or authority to divorce, in any other case. In every view of these, acts of our legislature, they are substantive laws, authorizing divorces in the cases which they specify, and not authorizing divorce, in any other case, or for any other cause. It would be useless here, to inquire, whether these laws — 567 — have provided adequately and wisely, for all the cases in which divorces should be allowed. According to the opinion of some, the great interests of society are best consulted by treating marriage as an indissoluble contract, in all cases whatever ; and this opinion seems to have prevailed in the colony of New York, and in the early age of the state. To others, this rule of policy, has appeared far too severe ; and they have held, that the welfare of society is best promoted, by separating the parties, when their happiness is destroyed, and the legitimate ends of matrimony wholly fail. The regulations of civilized societies, concerning divorces, differ widely, according to different views of expediency; and in every state, it is the province of the lawgiver, to establish positive rules, on this subject. Our own legislature have decided for ourselves; their views of expediency concerning divorces, are found in the laws which they have enacted ; and when the legislature shall deem it expedient to authorize divorces for causes not embraced by the existing laws, they will enact new provisions. The divorces thus allowed and regulated by statute, are for causes occurring after marriage ; and we have no statute regulating marriage itself. This important contract still depends on the principles of the common latv. Those principles are applied by all our courts, in the cases and proceedings which belong to their respective jurisdictions, when it is necessary to determine that a marriage is valid or void ; but we have no judicature authorized to determine by substantive and effeótual sentence, that marriages are legal or illegal, and to separate persons who are illegally married. The want of a judicature possessing such an authority, is an imperfection ; but every court of this state, is confined to its allotted jurisdiction; and it belongs to the legislature, to provide a remedy for this defect. Two decrees annulling marriages, have been made by this court, in cases not comprehended by our statutes concerning divorces. In the case of Wightman v. Wightman, 4 Johns. ch. 343, one of the parties was a lunatic; and in the recent case of Ferlat v. Gojon, the marriage had been procured by an atrocious fraud. These marriages were clearly void: — 568 — and this court pronounced the sentence of nullity. If these two decrees are denominated divorces, they did not arrogate . to this court any general power of divorce, in cases not prescrjbed by our statutes. The power of this court to vacate contracts obtained by fraud, is an unquestioned branch of its jurisdiction ; a gross fraud in obtaining a marriage, seemed to fall within this jurisdiction ; and the court adjudged such a marriage void. But the cases in which this court, can annul marriages, in virtue of its powers as a court of equity, must be few and very peculiar ; and they must appertain to the jurisdiction of equity. The cause for which this court is now asked to dissolve a marriage, is corporal impotence, on the part of the husband. This fact is not a cause of divorce, by our statutes; and it is impossible to yield to this suit, without adopting the law of England or of some other country, concerning divorces, as the law of this state. If a divorce can be granted for this cause, the whole catalogue of causes allowed by the laws of England, may be equally adopted ; the acts of the legislature and the policy of the state, respecting divorces, would be superseded by the doctrines of a foreign code ; and a power hitherto unknown in this state, would be exercised. The corporal impotence of the husband, is a cause of divorce in England, and by the laws of most countries ; but it is not a cause of divorce, by the laws of this state. This Suit must therefore, be dismissed. The suit was accordingly, dismissed; but without costs.