or without the default of the husband. But this provision in the opinion of this court is to be considered in connection with the declaration in the same statute, that divorces are to be granted on the application of the party injured; and thus limited, no husband can have the bonds of matrimony dissolved by reason of the adultery of the wife committed through his allowance, his exposure of her to lewd company, or brought about by the husband's default in any of the essential duties of the married life, or supervenient on his separation without just cause.” Citing Whittington v. Whittington, 2 Dev. & Bat. 64; Moss v. Moss, 2 Ired. 55; Wood v. Wood, 5 id. 674. The case stands upon the peculiar statute of North Carolina, and seems to be without any exact precedent.

In Ex parte Jones, re Grissell, in the English Court of Appeal, July 17, 1879 (40 L. T. [N. S.] 790), it was held that a married woman cannot be put into bankruptcy for a contract made by her after marriage, although she has a separate estate. The decision was put by James, L. J., on the ground that "the Married Women's Property Act, 1870, makes no provision for suing a married woman, except for debts contracted by her before marriage. If she is not liable to be sued as a feme sole, that is, in what used to be called a common-law action, she is not liable to be sued as a debtor at all. The liability in equity is to have her separate estate taken from her for the benefit of the person with whom she has contracted on the faith of it. It is a special equitable remedy arising out of a special equitable right. She is not a debtor in any sense of the word, and, not being a debtor, the whole foundation of the case fails." Brett, L. J., and Colton, L. J., took the same view. The former said that, while under the old bankruptcy act, no person could be made a bankrupt who was not both a trader and a debtor, and while under the new act the condition of trad

ing is no longer required, yet the requirement of being a debtor remains, and no person is a debtor within the act unless a remedy can be had against him as upon and for a debt. The latter judge says the new act has given no new rights against married women, but only made a difference in the mode in which they may be sued. The principle of their liability is the intention to contract so as to make the separate property the debtor. "It is not the woman as a woman who becomes liable, but her engagement has made that part of her property which is settled to her separate use the debtor and liable to satisfy her engagements." A married woman who is a sole trader may apply in bankruptcy. In

re Collins, 10 B. Reg. 335. And she is the subject of involuntary proceedings where she has bound her separate estate, or the contract was for its benefit, or in the course of legally authorized trading transactions. In re Howland, 2 B. R. 357; In re Schlichter, id. 336. These decisions have lost much of their significance in this country, owing to the repeal of the bankrupt act, but they illustrate the curious state of the law as to the legal condition of married women.

An important decision on the right of citizens to bear arms was recently made by the Circuit Court of Cook county, Illinois, in People ex rel. Bielfeld v. Affeldt, Chicago Legal News, Sept. 6th. It was there held that the provisions of the Military Code of Illinois, prohibiting any body of men whatever, other than the regular organized volunteer militia of the State, and the troops of the United States, to associate together as a military company, or to drill or parade with arms, without license from the governor, is repugnant to the provisions of an existing constitutional law of Congress, viz.: “An act more effectually to provide for the national defense, by establishing a uniform militia throughout the United States." That act is a complete exercise of the power conferred by the Federal Constitution upon Congress for the organization and regulation of the militia, and covering the whole field of legislation on that subject, excludes all interfering State legislation on that subject. In a very exhaustive and somewhat satirical opinion, Barnum, J., criticises the entire State statute. He says the title indicates a purpose to organize the militia, but the act does nothing of the kind. "The sounding prologue is all there is of the act. We hear no more of the people until some forty-four sections further on they are brought up long enough to pay the taxes." The second "section explicitly postpones the enrolment” “until when it is necessary to execute the laws, suppress insurrection, repel invasion, or quell riots, the governor" may require it. The court remark: "Although we have none of these, we still have the National Guard among us, together with all the pomp, pride and circumstance of glorious war. But splendid and imposing as these gala troops are, and serviceable as their unquestioned gallantry would be, if they came out at the call of their country, in a time of need, still I find it clear beyond controversy that they could not be compelled to come out, because they are not militiamen, and not enrolled." Finally, the act provided that "no military company shall leave the State with arms and equipments without the consent of the commander-in-chief. Any company so offending in this particular may be disbanded by the commander-in-chief." The court say of this: "This also is from Massachusetts, copied almost literally from section 163, chapter 265, of last year's militia law of that State, only that it avoids the further provision of that section, that no organization of the militia shall be liable to be ordered without the limits of the State.' This was a return to the old Connecticut and Massachusetts doctrine of 1812, made so strikingly odious of late years by less loyal States along the border, and too definitely set at rest by Martin v. Mott, 12 Wheat. 19, and other cases in the Supreme Court of the United States, for Illinois to adopt as yet. But so much of the section as was adopted forbidding all military companies of the Illinois National Guard, or others, to leave the State with arms without the permission of the governor, is so antagonistic and obstructive to national supremacy over the subject of the militia, and such a re-assertion of exploded heresies on this question, that no further instances need be sought." Houston v. Moore, 5 Wheat. 1; Opinions of Justices, 14 Gray, 614.

See

CONTRACTS OF MARRIED WOMEN.

THE

II.

THE first State to depart from the early and late English doctrine was South Carolina. In 1811 Chancellor Desaussure, in Ewing v. Smith, 3 Desau. 417, held in harmony with that doctrine, but this was overruled, and it is now held otherwise; see Reid v. Lamar, 1 Strobh. Eq. 27. The South Carolina doctrine now is that a married woman's separate estate may be charged with a debt incurred for its benefit, if the instrument creating the separate estate authorizes alienation or renders it liable for debts; but that a married woman's estate under such instrument is not liable for a note made by her and her husband. This has not been followed in Virginia or West Virginia, but has been followed in Pennsylvania, Rhode Island, Tennessee, and Misissippi. See Lancaster v. Dolan, 1 Rawle, 231; Lyne's Ex'r v. Crouse et al., 1 Barr, 111; Rogers v. Smith, 4 id. 93; Wright v. Brown, 8 Wright, 224; Wells v. McCall, 14 P. F. Smith, 207; Thomas v. Folwell, 2 Whart. 11; Wallace v. Costen, 9 Watts, 137; Metcalf v. Cook, 2 R. I. 355; Ware v. Sharp, 1 Swann, 489; Morgan v. Elam, 4 Yerg. 375; Marshall v. Stephens et al., 8 Humph. 159; Litton v. Baldwin.

In New York the question first arose in Methodist Episcopal Church v. Jaques, 3 Johns. Ch. 77, where Chancellor Kent, after admitting the general English doctrine to be as we have stated it, and that the weight of English authorities is opposed to an implied prohibition of general disposal by an expressed mode, concludes that a married woman is to be deemed a feme sole only to the extent of the power clearly given her by the settlement. This decision, however, was reversed by the Court of Errors, 17 Johns. 548, and Chief Justice Spencer there laid down the rule as follows: "When a feme covert, having separate estate, enters into an agreement, and sufficiently indicates her intention to affect by it her separate estate, when there is no fraud, or unfair advantage taken of her, a court of equity will apply it to the satisfaction of such engagement." Platt, J., put the rule as follows: "The jus disponendi is incident to her separate property and follows by implication. She may give it to whom she pleases, or charge it with the debts of her husband, provided no undue influence is exerted over her; and her disposition will be sustained and enforced by a court of equity, without the assent of her trustee, unless that assent be expressly made necessary by the instrument creating the trust. And the specification of any particular mode of exercising her disposing power does not deprive her of any other mode of using that right, not expressly or by necessary construction negatived in the devise or deed of settlement."

The expression of Chief Justice Spencer, raising a condition required in none of the English cases, nor in South Carolina, has given rise to great conflict and discussion in New York, and is probably the origin of the present rule in this State. In Yale v. Dederer, 18 N. Y. 265; 22 id. 451, it was held

by a divided court, that there must be an express charge or appointment in the contract creating the debt, or the debt must be for the benefit of the separate estate. In the former report Judge Comstock bases the liability on the fact of ownership, without regard to appointment or charge, but a majority of the court differed, and in the latter report Judge Selden put it on the fact of an expressed intention. The opinion of Judge Selden is subjected to a searching review in the principal case, but what there is said of it is mild in comparison with the language of Chief Justice Dixon, in Todd v. Lee, 15 Wis. 371, concerning it. He says: "I would gladly have avoided all comment on this case. patience has been so tried in considering it, that I fear I cannot give it an impartial examination that I may deal unjustly by a learned judge, whose candor and ability have uniformly commanded my highest respect. I feel that he has done himself great injustice that he has given way to a spirit of disingenuousness and cavil, which seem everywhere to pervade the opinion. Had he not perverted the decisions, unintentionally perhaps, to suit his own purposes, and placed the courts in attitudes they never chose to occupy, the task would have been less laborious and far more pleasing."

* * * *

My

Yale v. Dederer has been reluctantly acquiesced in in this State. In Manhattan B. & M. Co. v. Thompson, 58 N. Y. 80, Chief Justice Church said: "If when the Legislature changed the common law in essential particulars, in regarding the interest in property of the husband and wife to a considerable extent as distinct and independent, and in recognizing the capacity of the wife to judge and provide, what her own welfare requires in acquiring and holding the legal title to property, and managing and disposing of the same, as if unmarried and without subjection to the control of her husband, the courts had adopted, as a reasonable and legitimate sequence, the correlative rule of a capacity to contract debts, as if unmarried, restricted only to their collection from separate property, it might well be claimed that the rights of married women would have been as well, if not better protected practically, and business morality more promoted, and a flood of expensive and vexatious litigation prevented." And in Yale v. Dederer, on its third journey to that court, 68 N. Y. 335, the same judge, referring to the case last above, said: "I intimated a regret that the rule had not been established differently, so that since married women are allowed by the statute to take, hold, manage, and dispose of property as fully and completely as if they were unmarried, the signing of a note or other obligation should be deemed a sufficient evidence of an intention to charge their separate estates; and further reflection and examination has confirmed the impression then expressed; but I then thought the rule had been too long established as the law of the State to justify the court in overruling it; and I am still of that opinion." "There is every reason for referring the question to the legislative power to determine definitely what rule shall finally prevail.”

In Conlin v. Cantrell, 64 N. Y. 217, the same court held, "that in order to charge a separate estate of a married woman with a debt, it is not necessary that there should be a specific agreement to that effect. The intent may be inferred from the surrounding circumstances."

In Willard v. Eastham, 15 Gray, 328, while the conclusion of Yale v. Dederer is adopted, as to a surety debt, the case itself is severely criticised, and the law as to other debts seems unsettled. In Perkins v. Elliott, 23 N. J. Eq. 526, it is held that a married woman's separate estate is liable for debts contracted for the benefit of the married woman, whether charged or not, but that her estate is not liable for any security debt, whether charged or not. In Maryland the New York doctrine coincides with that of New York, except that there parol evidence is received to show the intention to charge the separate estate. Gray v. Crook, 12 Gill & J. 236; Conn v. Conn, 1 Md. Ch. 218, and Koontz v. Nabb, 16 Md. 549. It is settled in Alabama and Missouri that a feme covert may contract in the same manner as a feme sole; and that her contracts, whether verbal or written, express or implied, are all binding on her separate estate without regard to her intentions, as they do not bind her separate estate as appointments. Ozley v. Ikelheimer, 26 Ala. 332; Cowles et ux. v. Morgan, 34 id. 535; Coats et al. v. Robinson & Hendley, 10 Mo. 757; Miller et al. v. Brown et al., 47 id. 504.

In Connecticut it has been decided that a

In

contracted on the credit of her separate estate. Vermont, in the case of Partridge et al. v. Stocker, 36 Vt. 117, a married woman's separate estate was made liable for a simple contract debt not evidenced by writing. There was no charge made by her of this debt; but the court say she clearly indicated an intention to charge her separate property with the payment of the debt, as though they regarded this as necessary; but nothing was proven to show this intent, except her contracting the debt and conducting business on her own account.

The principal case contains an elaborate review of the Virginia and West Virginia cases, not essential to our purpose. We have endeavored to point out the origin and history of the artificial restrictions and distinctions thrown about and drawn from this vexed subject. Under our prevalent system they answer no useful purpose, and the various Legislatures should complete the work of reform by explicitly enacting that a married woman may contract precisely like a single woman.

RELATIONS OF CHRISTIANITY TO THE COMMON LAW.

BY REV. M. B. ANDERSON, D. D.

[Read before the Social Science Association, at Saratoga Springs, September, 1879.]

I.

IE moral code of a people is speaking generally de

her separate estate, as though she were a feme sole, excepting so far as there is an express or implied restriction on her power in the instrument creating her estate. Imlay v. Huntington, 20 Conn. 173. In Wisconsin it is held that if a married woman contracts a debt on the faith and credit of her separate estate, it is liable therefor, though no charge be made by her either expressly or impliedly; and the decision in Yale v. Dederer, 22 N. Y. 451, is expressly repudiated. Todd v. Lee, 15 Wis. 365; S. C., 16 id. 506. In California a married woman's estate is held liable for her debts not evidenced by writing, when she has either expressly or impliedly charged them on her separate estate; and if the debt has been contracted for herself, or for the joint benefit of herself and her husband, or even for his benefit, this alone would generally be regarded as sufficient prima facie evidence of her intent to charge her separate estate, and it would be held liable. Miller v. Newton, 23 Cal. 569. The same may be inferred to be the law of Minnesota from Pond v. Carpenter et al., 12 Minn. 432. In Georgia it is held that a promissory note given by a married woman, in which no reference is made to her separate estate, is binding on her separate property. See Dallas v. Heard et al., 32 Ga. 604. This decision is based on the English authorities only, the American authorities being regarded as too conflicting to furnish any safe rule. We may fairly infer from the reasoning in the case, that whenever a debt is contracted by a married woman having a separate estate, it would be held liable there, whether the debt was evidenced by writing or not, unless it appeared that it was not

ther (1) from Divine revelation or what it believes to be such, or (2) from the aggregate of the moral judgments of the community as expressed in moral treatises or in proverbs or fables, or (3) from what common and long continued experience has wrought into customs supposed to be obligatory or useful.

In an ideal state of things this moral code would be in harmony with absolute right. But practically, no human society attains to such a condition; hence there are always two standards of action, the ideal and the actual. In a community which is in a state of moral progress, the tendency is toward a conformity of the actual with the ideal. I shall take account here only of the moral standard which represents the average of opinion among a given people. The penalties for the violation of such a code are in general (1) the consciousness of ill desert and self-condemnation on the part of him who offends against it. (2) The concentration against such an offender of an outraged public opinion. (3) The fear of Divine retribution either in this life or the life to come. However severe these penalties may be, they are not and cannot be described, defined or fixed by civil enactments, nor enalties. forced by civil officers through physical pains and penIt is only a vague and metaphorical sense that the term, law, is used in regard to morals. The uniformly acting force to which we give the name law, is simply the constantly recurring "ought " or "ought not" of the conscience. As an expression of the will of Him who constituted the mind it may be called a command. But it is not, either in the mode of its ex

pression or the fixed and objective nature of its penalties, analogous to the civil law.

The civil law covers that portion of human obligations which it is possible or legitimate to sanction by physical pains and penalties. It consists of a body of rules enacted by the State, designed to mark out courses of action to the obedient, and to limit and determine he action of executive and judicial officers in the appli

cation of its penalties to the disobedient. These laws, among civilized peoples, are either written commands, formally issued by the legislative authority with definite penalties announced, or (2) judicial decisions by which these commands are interpreted, harmonized or supplemented. These decisions, in order to be laws, must be liable to enforcement by similar pains and penalties with those written commands on which they are founded.

This prætorial or judicial legislation last-named is built up in general, (1) by giving legal authority and sanctions to prevailing customs, having their origin in religion, race, peculiarities and external physical conditions, or (2) from the adoption by the judicial body of the oral or written opinions of men, whose judgments from any cause may have come to have weight sufficient to justify their acceptance, or (3) from the adoption by the judiciary of the doctrines and provisions of celebrated foreign codes which have acquired authority by time, or their intrinsic excellence, or (4) | from the adoption from time to time of maxims and principles from the code of morals commonly received in the nation, but hitherto unexpressed in positive law.

As all these sources of civil law alike, in a greater or less degree, represent the average moral opinions of the people governed, it is evident that law and its sources in the moral life of any nation mutually act and re-act on each other. There is a tendency on the part of the law to affect the moral judgment and moral action of the governed, and a still stronger tendency on the part of an existing moral code to become incorporated into the body of the civil law. The two systems always tend to approach each other. If the morality of the law is in any considerable degree above public moral opinion, its requirements will be evaded or executed with difficulty. If on the other hand the public morality is above that of the law, there will be a constant and in the end a successful effort to elevate the tone of the law or to give it additional severity in execution. In countries despotically governed the movement, which tends to assimilate the public and private law, to public moral opinion will be indirect and slow. In governments where the appeal to public opinion is direct and frequent, the adjustment between the practical public couscience and the civil law is likely to be rapid and easily effected.

In countries where (as is common) the great majority of the people have accepted a given religious faith, that faith will influence most powerfully for good or evil the moral code which they accept and practice. As all accretions to a nation's laws, either through statutes or judicial agency, must be drawn ultimately from its code of morals, all efforts for legal reform, which are likely to be permanent, must begin and be carried forward by corresponding efforts to elevate the standard and practice of personal morality. It will be seen, however, that though there is a close relation between a nation's moral code and its civil law, they are always to be discriminated from each other. Customs and moral precepts, however much they may be respected, and however widely they may be diffused, are not law until they have been incorporated into some statute or have been recognized as binding by some authoritative judicial body, so that their observance can be enforced by physical pains and penalties. Many writers speaking of the common law or the Lex non scripta, as distinguished from statute law, which is designated as the Lex scripta, convey the impression that in our country and England there exists a body of customary or common law outside both of statutes and authoritative legal decisions. It is true that in all trades and forms of business there are manifold usages which have existed time out of mind. But neither these nor any particular or general pre- | cepts of morality are law or can become law, until they

are formally decided to be such by some authorized and regularly constitued judicial body.

Still more clearly is the relation of morals to law illustrated in equity jurisprudence. Grotius says, "aequitas est virtus voluntatis correctrix ejus quo lex propter universalitatem deficit." Schlegel defines equity as "the law qualified by historical circumstances." Mr. Charles Butler says that it "arises from the inability of human foresight to establish any rule which, however salutary in general, is not in some particular cases evidently unjust and oppressive." It is evidently impossible that any code or single statute can embrace all the infinite variety of human discords and relations, or can provide for all possible contingencies in the definition of any particular class of rights and wrongs. Hence some contrivance to meet those cases in which the application of existing laws would, in the manifold complication of human affairs, work evident injustice, must, in every rational system of jurisprudence, be provided.

It is evident that in this correctional system which is called equity jurisprudence, the judge must be limited in his decisions by rules and principles drawn immediately and directly from the common moral code or system of the nation, lying outside of and apart from the strict letter of the law. When such moral principles have once been incorporated into decisions they soon, by being classified, pass into equitable rules, become guides of future magistrates, and within their proper sphere of application have the authority of law. Equity may be defined as the direct conversion of moral precepts and judgments into legal decisions by the authority of a court. These moral principles may be drawn from the ordinary current moral code of the people, or from the writings of men who have given special attention to conflict of duties and cases of conscience, such as writers on ethics, casuistry or canon law, or from foreign codes and commentaries thereon, such as from the Roman law and its expositors. Judge Story says: "From the moment when principles of decisions came to be acted on in chancery the Roman law furnished abundant material to erect a superstructure at once solid, convenient and lofty, adapted to human wants and enriched by the aid of human wisdom, experience and learning." Com. on Equity Jur., § 23. The fact that the early English chancellors were clergymen, specially versed in the canon law and casuistry, illustrates the immediate nature of the process through which moral rules were by equity courts changed into law, with physical penalties attached. Spelman says that priests were made viceroys during the absence of kings 7 times, 12 were made justiciars, 160 chancellors, down to the 26th year of Henry VIII. Down to that time, also, all Masters of the Rolls were taken from the clergy. From the nature of the case such correctional judgments must have been at first vague and unsystematic, but the thought of centuries has reduced the principles of judgment to orders and classes, which, though refined and complicated, are reasonably fixed and certain.

Casuistry in the hands of priests, and equity in the hands of men like Lord Eldon, have acquired a bad reputation. But we suppose that treatises on practical ethics and chancery law can each show a body of fixed and definite principles. We suppose that the decisions, which have grown up in the lapse of time, are sufficiently definite to guide the equity judge in his labors, by ways nearly as clear and simple as those which statutes and decisions mark out for the courts of law. We must of course leave it to professional knowledge to decide whether Lord Bacon's ideal of a law court, and the rules which should guide it, can be realized in equity courts and equity jurisprudence: etenim optima est lex quæ minimum reliquit arbitrío judicis; optimus judex qui minimum sibi.

We will now consider how these general principles