bills of divorce from the bond of matrimony to either party, with
the privilege of remarriage, for adultery, fraudulent contract,
three years' wilful desertion with total neglect of duty, or for
seven years' "providential" absence unheard of.[1017] This law was
re-enacted in 1677;[1018] and the four causes, with scarcely the
change of a word in the terms of the statute, appear in the revision
of 1715,[1019] and again and again in the succeeding compilations
until 1843, when two new grounds--"habitual intemperance" and
"intolerable cruelty"--were added.[1020] The real scope of this
singularly liberal provision for divorce thus early adopted cannot,
however, be fully appreciated unless two important facts be kept in
mind. First, in judicial practice adultery acquired a very broad
meaning. Not only did it cover the misconduct of the husband as well
as that of the wife, but the statute was interpreted to allow the
latter a divorce for the "criminal connection" of the man with any
single women.[1021] Secondly, "fraudulent contract" was construed
"according to its plain and natural import, that is a contract
obtained by fraud," and not in the very restricted and conventional
sense which the courts, perhaps misled by a remark of Blackstone,
have in later years sometimes adopted.[1022]
[Footnote 1017: See _Public Statute Laws of the State of Conn._
(Hartford, 1808), I, 236, editorial note 1; also SWIFT, _Digest_,
I, 24, 25.]
[Footnote 1018: _Conn. Col. Rec._ (Oct. 18, 1677), II, 328:
"It is ordered, by this court that noe bill of divorce shall
be granted to any man or woman lawfully married but in case of
adultery, fradulent contract, or willful desertion for three
years with totall neglect of duty, or seven years' providentiall
absence being not heard of after due enquiry made and certifyed,
such party shall be counted as legally dead to the other party;
in all which cases a bill of divorce may be granted by the Court
of Assistants to the aggrieved party who may then lawfully marry
or be marryed to any other."]
[Footnote 1019: _Acts and Laws_ (New London, 1715), 28; _ibid._
(New London, 1750), 43; _ibid._ (New Haven, 1769), 43. Almost
the only change during the period mentioned in the text is the
substitution of "superior court" for "court of assistants."
_Cf._ _Pub. Stat. Laws_ (1808), 236 n. 1. As in Massachusetts,
the divorced wife is to have a part of the husband's estate, not
exceeding one-third thereof: _Acts and Laws_ (1769), 146.]
[Footnote 1020: Act of June 6, 1843: _Public Acts_ (1843), 20;
_Revision of the Stat. of the State of Conn._ (Hartford, 1849),
274.]
[Footnote 1021: SWIFT, _Digest_, I, 21.]
[Footnote 1022: This is the view of SWIFT, _Digest_, I, 21,
22, referring to BLACKSTONE, _Commentaries_, III, 94. Thus a
decision of the Connecticut superior court of errors seems to
limit "fraud" as a cause of divorce to "corporal imbecility":
1 DAY, _Reports_, 111. But in 1848, at the August term of the
superior court for Litchfield county, "it was held ... upon a
consultation with judges of the Supreme Court, that where a woman
at the time of her marriage was pregnant with a bastard child,
and fraudulently concealed the fact from her husband, this was a
sufficient cause for a divorce."--DUTTON AND COWDREY'S _Revision
of Swift's Digest_ (New Haven, 1851), I, 22; citing 9 _Conn.
Rep._, 321; and for New York, where a similar practice prevailed,
4 JOHNSON, _Chancery Rep._, 343. In the earlier period doubtless
a still broader meaning was given to the term "fradulent
contract": see the examples for illustration in SWIFT, _Digest_,
I, 22.]
Long before the act of 1667, and for one hundred and eighty-three
years thereafter, the legislative assembly of Connecticut, side by
side with the court of assistants or its successors, reserved to
itself the right of granting bills of divorce. This power seems in
the main to have been exercised with caution, though there are not
lacking signs that it was sometimes abused. The general policy,
according to Swift, was only to grant relief in this way in "cases
of intolerable cruelty, and inveterate hatred, and such gross
misbehaviour and wickedness as defeat the design of marriage, and
presumptive proof of a criminal connection ... , where the positive
proof required by law cannot be had."[1023] Yet this wise rule, if
legislative divorce is to be allowed at all, does not in all cases
seem to have been rigidly followed. The first instance of action by
the general court in such questions found in the records occurs in
1655. "Considering the sad complaint of Goody Beckwith of Fairfield,
in reference to her husband," and weighing the evidence presented
"of ye manner" of his "departure and discontinuance," the assembly
declares that if the "said Goody Beckwith, wife of Thomas, shall
uppon her oath testifie to the Magistrates that are shortly to keepe
Courte at Strattford, that her husband's departure was as others
have testified it to bee; and y^t shee hath not heard from him nor
of him any wayes since hee deserted her, the said Magistrates may
give her a bill of Divorce."[1024] This is, of course, an example of
granting the court jurisdiction in a particular case where perhaps
the evidence was otherwise insufficient to warrant a decree. Two
years later the general court frees Robert Wade of Seabrook from
his "Couenant of marriage" with Joane his "late wife," because of
the evidence presented to them of her "unworthy, sinfull, yea,
unnaturall cariage" in staying in England and "disowning fellowship"
with him for "neare fifteene yeares."[1025] Again in 1660, taking
time by the forelock in the behalf of Sarah North, the same body
orders that if she "hear not of her husband by that y^e seauenth
year be expired, (he haueing bene absent six already) ... then, she
shalbe free from her coniugal bonds."[1026] So also two years later,
"vpon good consideration and solid reasons"--of what nature the
record saith not--Bridget Baxter is likewise released; and because
the estate which her late husband left with her "is sold to pay
debts, all excepting a bed and her wearing aparell," the creditors
of "y^e said estate" are prohibited from "seizing extending or any
way troubleing y^e remainder, vntil y^e Court see cause to y^e
contrary."[1027] In 1670 Hanna Huitt "is at liberty to marry if
shee see cause," for the absence of Thomas during "eight years and
better."[1028]
[Footnote 1023: SWIFT, _System of the Laws_, I, 193.]
[Footnote 1024: _Conn. Col. Rec._, I, 275 (May 17, 1655).]
[Footnote 1025: _Ibid._, 301 (Aug. 12, 1657).]
[Footnote 1026: _Ibid._, 362 (Mch. 14, 1660).]
[Footnote 1027: _Ibid._, 379 (May 15, 1662).]
[Footnote 1028: _Ibid._, II, 129 (May 12, 1670).]
The case of Elizabeth Rogers is of special interest; for it is much
to be feared that the worthy deputies and magistrates regarded
"free thinking" as a sufficient cause for dissolution of wedlock.
In 1675 she laid her petition before the court of assistants,
which found "some difficulties as to a present issue finally."
Yet the case being one which called "for compassion to the woman
under so great distress and hazard," it was referred for settlement
to the general court, Mrs. Rogers having liberty meanwhile to
dwell with her father.[1029] Accordingly, at its next session the
assembly, accepting the "allegations and proofes presented to
clear the righteousness of her desires," released Elizabeth from
her "conjugall bond."[1030] A year later provision is made for
alimony with custody of the children; and now at last the reason for
Goodwife Rogers's "great distress and hazard," thus far carefully
omitted from the record, is clearly divulged. "Her husband," runs
the order, "being so hettridox in his opinion and practice," and
having even "in open Court declared that he did vtterly renounce all
the vissible worship of New England, and professedly declare against
the Christian Sabboth as a mere invention," the court grants the
mother and her father, Mathew Griswold, the care and custody of the
children "to be brought up and nurtured by them (in the admonition
and fear of the Lord)," also ordering John Rogers to pay "towards
the mayntenance of his children, the sume of twenty pownds" in
four equal annual instalments. In case "he fayle of payment, the
reversion of the land by sayd John Rogers made ouer to Elizabeth his
late wife, at Mamacock" is to be held as security.[1031]
[Footnote 1029: _Ibid._, 292, note.]
[Footnote 1030: _Ibid._, 292 (Oct. 21, 1676).]
[Footnote 1031: _Ibid._, 293 (Oct. 18, 1677). For two cases of
divorce, each for six years' desertion, see _ibid._, 293 (Oct.
12, 1676), 322 (Oct. 11, 1677); one for five years' desertion,
_ibid._, 327 (Oct. 18, 1677); and another for three years'
"wilful" desertion, _ibid._, III, 23 (1678).]
Another case, that of Richard Edwards, deserves notice, for as
late as 1690 it affords us an example of the reference of public
questions to the elders. In October of that year Edwards presented
a petition for divorce from his wife Elizabeth. The general court
"declare they doe not find reason to grant" it.[1032] But Richard
is bound to have "releife therein if the law of God or man will
affoarde it him." So he comes before the court again "desireing
that a councill of able diuines upon his charge might be called
to consider his case and giue their resolves upon the same to the
court." The latter, though not "fully sattisfyed to alter their
apprehensions from what they were formerly, yet considering the
deplorable state of the petitioner, and the many intolerable
temptations he lyes open too, are willing to doe what they can
for his releife, and to recomend it to the Gen^{ll} Court October
next to consider the case, and doe desire that the Reuerend Mr.
Hooker" and five other ministers give their attendance upon the
court "to hear the case and grant what light they can come at" to
guide the issue.[1033] No definite ground for the petition, it will
be observed, is assigned; but one may safely hazard a guess that
"hettridox" opinions were again involved. At any rate, Richard's
plan was successful. The next October he was released "from his
conjugall tye," the court first "haueing considered the case with
seriousnesse and taken the best advice they could com at by the word
of God and learned and worthy diuines."[1034]
[Footnote 1032: _Conn. Col. Rec._, IV, 37 (Oct. 9, 1690).]
[Footnote 1033: _Ibid._, 52, 53 (May, 1691).]
[Footnote 1034: _Ibid._, 59 (Oct. 8, 1691).]
As time went on, the cases of legislative divorce became few and
far between. The courts were felt to be the proper place for such
business.[1035] In 1753 Mary Larkum was freed from her husband Job
on account of his "barbarous and inhuman carriage toward her."[1036]
In 1761 the assembly set aside a divorce granted two years before by
the superior court for alleged wilful desertion;[1037] and at rare
intervals that body was appealed to during the next seventy-five
years.[1038] There was a sudden increase of business in 1837.[1039]
From that date until 1850 the annual crop of legislative divorces
is surprisingly large.[1040] Sometimes the "resolve" granting the
petition is curt and informal; while often it is entirely silent
as to the exact cause of complaint.[1041] It would seem that the
practice of intrusting proper judicial business to popular political
bodies was yielding the usual evil fruit; for at last, in 1849,
a statute provides that the "Superior Court shall have sole and
exclusive jurisdiction of all petitions for divorce."[1042]
[Footnote 1035: In a pamphlet entitled _Appeal to the Public_
(New Haven, 1788), full of errors, TRUMBULL attacks the divorce
laws of his state. According to him (48), there is no example
of divorce in New York from the settlement to 1787; and with
equal inaccuracy he declares (46) that "in the Massachusetts and
Connecticut codes printed at Cambridge 1672, there is no law
respecting divorce. The law of Connecticut relating to it was
made five years after, Oct. 11, 1677." For Connecticut he makes
the further extraordinary statement (46) that "more than forty
years from the settlement" elapsed "before any such law was in
existence. No divorce was given by virtue of the law, till the
year 1692. After this divorces were, for many years, sparingly
given. But as they became customary, as there were no punishments
for delinquents, and as the shame decreased with the growth of
the practice, they have, within this few years, had a rapid
increase. In less than a century [1692-1788], four hundred and
thirty-nine (439) pair ... have been separated by divorce. This
whole number, forty-eight couple excepted, have been divorced
in the short term of fifty-two years. Between twenty and thirty
pair ... are now annually "thus separated" in the Superior Court,
besides those put asunder by the General Assembly. About twenty
times as many are now divorced annually, as were in almost sixty
years after the first settlement of the State; and about half as
many as were divorced through the whole first century. Seventeen
pair have been divorced last circuit." It is to be hoped that the
statistics are more trustworthy than the history.]
[Footnote 1036: _Conn. Col. Rec._, X, 168 (May, 1753).]
[Footnote 1037: _Ibid._, XI, 544, 545 (May, 1761).]
[Footnote 1038: Thus a divorce was granted in 1774: _ibid._, XIV,
223, 387, 388; and two instances occurred in May, 1821: SWIFT,
_Digest_, I, 23.]
[Footnote 1039: An act of 1837 refers incidentally to divorces
which have been or shall be "granted, either by the general
assembly or by the superior court, on the application of a
married woman."--_Pub. Stat. Laws_ (1837), 33; also in _Pub.
Stat. Laws_ (general revision, 1838), 187. Query: Did this act
invite and authorize appeal to the assembly in such matters?]
[Footnote 1040: For the annual lists of divorces granted by the
assembly see _Resolves and Private Acts of the State of Conn._
(1837), 3 ff.; _ibid._ (1838), 13-16; _ibid._ (1839), 28-42;
_ibid._ (1840),9-14; _ibid._ (1841), 23-28; _ibid._ (1842), 4-16;
_ibid._ (1843), 10-20; _ibid._ (1844), 8; _ibid._ (1845), 15, 16;
_ibid._ (1846), 15-19; _ibid._ (1847), 31-34; _ibid._ (1848),
61-69; _ibid._ (1849), 46-56. The last of these divorces is that
of Candace Williams, of New Haven, from F. Walter Williams, May,
1850; _ibid._ (1850), 21.]
[Footnote 1041: Here is a typical case, though often the resolve
is much briefer:
"Upon the petition of Polly M. Mead of Danbury, Fairfield County,
and State of Connecticut, praying a bill of divorce from her
husband, Martin Mead of said Danbury, which petition was duly
served and returned:
"_Resolved by the Assembly_, that the said Polly M. Mead be, and
she is hereby divorced from the said Martin Mead, and is and
forever hereafter shall be absolved from all obligations to the
said Martin Mead by virtue of the said marriage contract, and is
hereby declared to all intents and purposes, sole, single and
unmarried.
"Resolved that the said Polly ... have the sole charge, care
and custody of her only child, and that the said Martin ...
shall have no power or authority over him, in any way or manner
whatsoever."--_Resolves and Private Acts_ (1837), 3.]
[Footnote 1042: Act of June 19, 1849: _Pub. Acts of the State of
Conn._ (Hartford, 1849), 17.]
_d_) _Rhode Island._--It is, however, in the judicial history of
Rhode Island that legislative divorce has left its deepest mark
and had its worst consequences. In the American colonies and
states this practice has perhaps never caused the same hardships
or flagrant injustice as it did in England previous to the act of
1857. Ordinarily, as in that country, relief has not in effect and
of necessity, owing to the cost of the proceedings, been entirely
denied to anyone because he was poor. On the other hand, popular
political assemblies, such as American state legislatures, are on
other grounds ill fitted for judicial functions. Their ignorance or
carelessness may produce results bad for society. For they possess
nothing like the legal knowledge and experience of the House of
Lords, in which petitions for divorce were first considered. Before
the legislative trial, as in England, the facts have not already
been fairly well ascertained in the law and spiritual actions;
and if the same harsh discrimination between rich and poor does
not appear, there is at least equal opportunity for jobbery and
favoritism. It is well that the custom practically has long ceased
to exist in the United States.
The legislation of Rhode Island begins with a conservative measure
in 1650. It is "ordered, that no bill of divorce shall stand legall
... butt that which is sued for, by the partie grieved" and not
"for any other case but that of Adulterie." This cause may be
proved by the injured person, "eyther by the man against the woman,
or by the woman against the man, before the Generall Assemblie"
which by the act is given exclusive jurisdiction in such questions.
After separation "each partie shall be as free from" the other as
"before they came together."[1043] But in 1655 a change is made
in jurisdiction, as also by implication, in the legal grounds
of divorce. First we have a striking example of the tendency of
Rhode Island to vest important functions in the officers of the
local community. "It is ordered, that in case of adulterie, a
generall or towne magistrate may grant a bill of divorce against
y^e partie offendinge uppon y^e demand of y^e partie offended."
Furthermore, other grounds of complaint are contemplated, though
they are not clearly expressed; for it is declared that "in all
other cases of separation or divorce between man and wife, all
persons shall addresse themselves for release to y^e Generall Court
of Commissioners"--the name which the assembly bore during the
parliamentary charter. Here we have the usual reservation of special
cases to the legislature, among which, it seems clear, separation
from bed and board is had in view.[1044]
[Footnote 1043: _Rhode Island Col. Rec._, I, 231 (Oct. 26, 1650);
_cf._ ARNOLD, _Hist. of R. I._, I, 322.]
[Footnote 1044: _R. I. Col. Rec._, I, 312 (1655). "And if any
persons in this Colonie," continues the order, "shall part
themselves and marrie again without y^e authoritie of y^e
Court of Commissioners, or be convicted of carnal copulation
with any other [bigamy], they shall be punished as in case of
adulterie."--_Ibid._, 312.]
In the early days the assembly did not lack business. At the June
session, 1655, John and Elizabeth Coggeshall, who had separated
"by mutuall and voluntarie consent," were each allowed on
separate petition to contract further marriage.[1045] Two other
cases occurred the same year;[1046] and later examples have been
collected. In 1665 the assembly "granted a divorce for the adultery
of the wife on her own confession, and at the same time sentenced
her to pay a fine and be whipped."[1047] At this time is also
recorded the pathetic story of Horod Long. In her petition addressed
to the royal commissioners,[1048] then in the colony, she says:
"I was upon the death of my father sent to London by my mother in
much sorrow and griefe of spiritt, and then taken by one John Hickes
vnknown to any of my friends, and by the said Hickes privately
married in the vnder Church of Paules, called Saint Faith's Church,
and in a little while after, to my great griefe, brought to New
England, when I was betweene thirteene and fourteene years of age."
After living two years and a half at Weymouth the pair came to Rhode
Island in 1640. "Not long after," Horod continues, "there happened
a difference betweene the said John Hickes and myselfe, soe that
the authority that then was vnder grace, saw cause to part vs, and
ordered I should have the estate sent me by my mother." Evidently
she was allowed to resume her maiden name. Here we catch a glimpse
of the earliest known divorce in Rhode Island. After the separation
Hickes fled to the Dutch,[1049] taking with him, in defiance of
the court's order, most of the wife's property. Thus she was "put
to great hardshipe and straight;" for she was friendless and "not
brought up to labour." To gain a maintenance, therefore, without
any formal celebration or other proceedings, she allowed herself
to be "drawne by George Gardener," and lived with him as his wife,
being so reputed by the neighbors, for near twenty years, bearing
him "many children." Clearly, as further shown by the testimony,
we have here a case of "common-law" marriage. Yet during this time
Horod alleges she had "much oppression of spiritt" regarding her
questionable condition; but Gardener, who had enjoyed the remnant
of her estate and all her labor, refused either to allow her a
separate support or to cease to trouble her. So in her distress
of mind she appealed to the commissioners for relief, asking
separate maintenance for herself and child, and that "hee may bee
restrained from ever meddling with" her. The commissioners referred
the matter to the governor, requesting him to "doe justice to the
poore petitioner;" and the governor placed it in the hands of the
assembly. That body was without compassion; for the woman had
"impudently" discovered "her owne nakedness." She and her partner
were treated as ordinary offenders, being each fined twenty pounds,
and warned henceforth not "to lead soe scandalous a life, lest they
feel the extreamest penalty that either is or shall be provided in
such cases."[1050]
[Footnote 1045: _Ibid._, 319.]
[Footnote 1046: Peter Talman got a divorce on his wife's
confession of adultery: ARNOLD, _Hist. of R. I._, I, 320; and
it "was ordered that Thomas Genings shall goe and demand his
wife to live with him, but in case she refuse, he shall make his
addresses to the General Court of Commissioners."--_R. I. Col.
Rec._, I, 312. Ann Talman, the divorced wife of Peter, referred
to, was later more than once whipped for her misconduct: _ibid._,
II, 187,188.]
[Footnote 1047: DURFEE, _Gleanings from the Judicial Hist. of R.
I._, 35.]
[Footnote 1048: Carr, Cartwright, and Maverick.]
[Footnote 1049: Is this the same "John Hicks" who in New
Netherland obtained a divorce in 1655? See sec. iii, below.]
[Footnote 1050: _R. I. Col. Rec._, II, 99 ff. At the same time,
with astonishing inconsistency, it was enacted that similar
offenders shall be amenable to the laws punishing fornication,
which are made more stringent; but all present reputed marriages
are declared valid and the children legitimate (104, 105). By
this rule Horod and George should either have been regularly
divorced or ordered to cohabit as husband and wife. In any event
their punishment was unjust.]
To this same eventful year, 1667, belongs the only case of partial
divorce yet discovered. Richard and Mary Pray joined in a petition
asking a complete dissolution of their nuptial bond. The assembly
denied their prayer, but allowed them to live apart without the
right of remarriage.[1051] On the powers of the general court
at this time Arnold makes the following comment: "Not only were
divorces granted and a separate maintenance awarded to the wife,
but the whole property of the husband was attached and held by the
Assembly, until the provisions of the decree had been satisfied. In
the case of John Porter ... they went even further, and annulled
all transfers of property ... made by him since the separation from
his wife, which had not already been recorded. Upon his settling
a satisfactory estate upon his wife these disabilities were
removed."[1052]
[Footnote 1051: _Ibid._, 188, 189. In the same year Robert
Colwell got a divorce from his wife Mary: _ibid._, 204.]
[Footnote 1052: ARNOLD, _Hist. of R. I._, I, 320. This case came
before the assembly in 1665: _R. I. Col. Rec._, II, 119-21; _cf._
DURFEE, _Gleanings from the Judicial Hist. of R. I._, 35.]
After the establishment of the royal charter the ordinary
jurisdiction in divorce matters was vested in the court of trials,
composed of the governor and assistants who formed a part of the
assembly; but the latter body continued to act when it saw fit.
But "it would seem," says Arnold, "that the separate powers of the
magistrates were not distinctly defined or well understood, for a
censure was passed upon John Green, Assistant of Warwick, for having
granted, by his own authority, a bill of divorce. This proceeding
was sharply reproved by the Assembly, as being a usurpation of
judicial power in superseding the action of the Court of Trials.
The town of Warwick declared the divorce to be legal, and protested
against this censure upon their leader."[1053] In this case it
may perhaps be right to infer that a reminiscence existed of the
order of 1655, already cited, vesting jurisdiction in the principal
cases of divorce in a single "town" or "general" magistrate, the
latter term applying to an "assistant" under the royal charter.
The assembly in 1676 released John Belou "from all matrimonial
engagements" to his wife Hannah.[1054] An entry in the records of
Muddy River, Mass., for July 30 of the same year, informs us that
John "Lewis came from Road Island where his wife gave him a paper of
dismission from her in Novr. last & libertie to marrie another woman
& he is now engaged to y^e widow Williams to marry her, by theire
own confessions."[1055]
[Footnote 1053: ARNOLD, _Hist. of R. I._, I, 365 (Nov., 1672).
This bill was granted to Richard and Mary Pray, whom the assembly
had permitted to live apart in 1667: _R. I. Col. Rec._, II, 479.]
[Footnote 1054: _Ibid._ (1664-77), 543.]
[Footnote 1055: The entry is marked "returned to county court":
_Early Records of Muddy River_, 69.]
In 1683 we have an interesting example of the summary punishment
of a divorced man by the legislature, doubtless for the misconduct
which led to the decree. "The power of the Assembly to expel its
members was rarely exercised, but at the adjourned session, a
deputy from Warwick, against whom complaints were brought and a
divorce granted on petition of his wife," at this time, "was deemed
unfit to hold his seat, and was therefore expelled."[1056] Two years
thereafter a law was passed making "five years neglect or absence
of either party" a ground for divorce;[1057] but the period was
extended to seven years in 1749.[1058]
[Footnote 1056: ARNOLD, _op. cit._, I, 470 (June, 1683).]
[Footnote 1057: _Ibid._, 483 (1685).]
[Footnote 1058: See _Acts and Laws_ (Newport, 1767), 74,
containing the changes made in 1749 and 1754. The superior
court is authorized in its discretion to grant alimony from the
husband's estate.]
According to Judge Durfee, after power to grant divorces came to
the superior court in 1747[1059] the jurisdiction of the assembly
"languished;" but "it continued, nevertheless, to be invoked in
exceptional cases,[1060] which either were not provided for by the
statute or were too flimsey or too whimsical for judicial treatment.
There is an uncanny tradition, still vaguely surviving, that in
such cases grave legislators were sometimes plied in the lobby with
solicitations and arguments too peculiar for public discussion.
After the constitution the more usual course for the assembly was,
not to hear the petition, but to authorize the supreme court to hear
it by special act, if without such act the court was incompetent.
Divorces, however, were granted as late as 1850. In January, 1851,
the assembly had several petitions pending before it and transferred
them, together with all documents and depositions in support of
them, to the supreme court, 'where,' the resolution of transfer
tartly remarks, 'the said petitions should have been filed,' and at
the same time authorized and required the court to try them."[1061]
[Footnote 1059: In that year the court of trials, composed of the
governor and assistants or councillors, which with no essential
change in composition and functions had existed from about 1644,
was superseded by a regular law tribunal, the superior court of
judicature: ARNOLD, _op. cit._, II, 157. But already in 1729 a
"Superior Court," composed of at least five members of the upper
branch of the legislature, and apparently lower than the court of
trials, was established: _ibid._, 90. In general on the various
stages in the history of the court of trials, see _ibid._, I, 210
(1647), 302 (1663-64), 460 (1680); II, 16 (1704).]
[Footnote 1060: In Oct., 1749, a divorce was granted by the
assembly; and this is the first Arnold had noticed, probably
meaning in that period: _op. cit._, II, 175.]
[Footnote 1061: DURFEE, _Gleanings from the Judicial Hist. of R.
I._, 35, 36. See _Laws of R. I._ (1851), 796, where petitions for
divorce on account of wilful desertion are transferred by the
assembly to the supreme court; and similar reference, _ibid._
(1846), 57, 85.]
II. ENGLISH DIVORCE LAWS IN ABEYANCE IN THE SOUTHERN COLONIES
It is an established principle of jurisprudence that colonists
settling in an uninhabited land take with them all the laws of the
mother-country which are suited to their new circumstances.[1062]
This doctrine is sustained by the decisions of the Courts.[1063]
It follows, according to the views strongly supported by Bishop,
"that all such laws of England, relating to marriage and divorce,
by whatsoever names there known, are, as they existed at the
respective times of the settlements here, common law in our several
states."[1064] The law of divorce which the American colonists
brought with them in the seventeenth century allowed a separation
from bed and board by decree of an ecclesiastical court, and for
two causes only, adultery and cruelty. Absolute divorce was not
recognized. But while the colonists carried with them the English
law, they did not bring likewise the English courts. Therefore it
"results that these laws can practically be administered with us
only as far and as fast as tribunals are established on which,
directly or by implication, is conferred the jurisdiction." The
laws slumber, so to speak, until quickened through the creation of
courts by the legislature. "Between the arrival in a colony of the
law from the mother-country, and the organization of courts for its
enforcement, some space of time must intervene. And during such
space the law must be practically in abeyance, or inoperative."
Should a "tribunal be created with jurisdiction extending to a
part only of the law, such part will become operative, but the
rest will remain inert as before."[1065] Besides, for our present
purpose it is highly important to note that the English courts "have
specifically held, that the matrimonial law of the ecclesiastical
tribunals is a branch of the law which colonists take with
them."[1066]
[Footnote 1062: BISHOP, _Mar., Div., and Sep._, I, § 116. "If
an uninhabited country is discovered and planted by British
subjects, the English laws are said to be in force there, for the
law is the birthright of every subject."--STORY, _Commentaries_,
I, §§ 147 ff. _Cf._ KENT, _Commentaries_, I, 343, 473; and
BLACKSTONE, _Commentaries_, I, 107, who regards the colonies as a
conquered country.]
[Footnote 1063: BISHOP, _First Book_, §§ 51-59; _idem_, _Mar.,
Div., and Sep._, I, § 117.]
[Footnote 1064: The expression "all laws" is used advisedly.
Though "in some of the American cases the term 'common law' is
used, the broad meaning of the term, not its narrow and technical
one, is intended."--BISHOP, _Mar., Div., and Sep._, I, § 119;
citing C. _v._ Knowlton, 2 _Mass. Rep._, 530, 534: Sackett _v._
Sackett, 8 PICKERING, _Reports_, 309, 316. _Cf._ JEFFERSON,
_Works_, VI, 65; VIII, 374, 379; IX, 282.]
[Footnote 1065: BISHOP, _op. cit._, I, §§ 115-37, where the
authorities for each step in the argument are cited.]
[Footnote 1066: _Ibid._, §§ 119, 109. See Latour _v._ Teesdale, 8
TAUNT., _Eng. Com. Pleas Rep._, 830; Rex _v._ Brampton, 10 EAST,
_King's Bench Rep._, 282; Caterall _v._ Caterall, 1 ROB., _Ec._,
580, 581; and Lauderdale Peerage Case, 10 _Law Reports_, 744,
745.]
Since, therefore, the church courts were never established in any
of our American provinces, it follows by the foregoing rule that
there was no tribunal competent to decree a divorce or separation
in such of them as had not assigned the jurisdiction in question
to some other body. This was the case throughout the southern
colonies. Their statute books are entirely silent on the subject of
divorce jurisdiction. Judicial separations from bed and board did
not exist; nor prior to the Revolution has there been discovered a
single case of absolute divorce by legislative act--a practice so
common in New England during the same period--although Parliament
had set the example before the close of the seventeenth century. On
the other hand, separations by mutual consent, or on account of bad
conduct, or parol[1067] separations in some form, did occur, as they
always do occur in any society; and it is from the meager records of
judicial actions regarding separate maintenance in such cases that
one learns something concerning the state of southern law and custom
before the Revolution.
[Footnote 1067: On "parol separation" see BISHOP, _Mar., Div.,
and Sep._, I, §§ 1203-52.]
In Virginia we find the county court, which had gained a share
of the equity jurisdiction,[1068] hearing and granting petitions
for separate alimony. Thus in 1691 the prayer "of Ruth Fulcher
for separate maintenance against her husband, John Fulcher," was
referred by the governor and council, constituting the "general
court,"[1069] to the justices of a county court, "who, after hearing
the testimony, decided in favour of the plaintiff."[1070]
[Footnote 1068: HENING, _Stat._, I, 303; V, 491.]
[Footnote 1069: This court was so called since 1662: HENING,
_Stat._, II, 58; _cf._ HOWARD, _Local Const. Hist._, I, 390 ff.]
[Footnote 1070: June 16, 1691: PALMER, _Calendar of Va. State
Papers_, I, 29.]
Now, by the English law alimony could not be granted in an
independent action, but only as incident to a divorce by decree of
the ecclesiastical court. Moreover, in Virginia no colonial statute
had ever conferred this portion of the ecclesiastical jurisdiction
upon the local courts or upon any other tribunal. How, then,
consistently with the principles just stated, could a petition
for separate maintenance be entertained by the county magistrates
as falling within their equity jurisdiction? From two decisions
in the early part of the present century the dual innovation is
represented as the result of justifiable self-help under the stress
of circumstances; while, in the absence of a statute authorizing
it, the assumption of the power of the ecclesiastical court by the
equity tribunal is looked upon as a natural and logical course. In
the first of these cases, arising in 1810, the superior court of
chancery affirms its own jurisdiction in suits for alimony. The
chancellor, after conceding that the authorities are in doubt and
divided, holds "that in every well-regulated government there must
somewhere exist a power of affording a remedy where the law affords
none; and this peculiarly belongs to a court of equity; and as
husband and wife are considered as one person in law, it is evident
that in this case the law can afford no remedy; which is universally
admitted to be a sufficient ground to give this court jurisdiction,
and therefore it must entertain the bill."[1071]
[Footnote 1071: Case of Purcell _v._ Purcell (1810), 4 HEN. AND
MUNF., _Reports_, 506-19. "It is not commonly thus assumed that
a court of equity will take jurisdiction of a subject simply
because the common law tribunals do not."--BISHOP, _Mar., Div.,
and Sep._, I, § 1398, note 5; STORY, _Equity Jurisprudence_, §
62.]
Thirteen years later this "reasoning of the chancellor on the
point of jurisdiction" is pronounced "sound," in a suit for
separate maintenance which was carried from the chancery court of
Fredericksburg to the Virginia court of appeals. In his opinion
Judge Carr says: "I find no case with us, in which the subject
has been before this court. Having no Ecclesiastical Tribunal,
the powers of that court seem to have been considered as vesting
originally in the old General Court. From thence, some of them have
been distributed to other courts, as they were branched out.... I
know of no law which has given to any court the trial of matrimonial
causes, except so far as relates to incestuous marriages, as to
which a power is given to the Court of Chancery to annul them."
Judge Tucker, he continues, in his edition of Blackstone,[1072]
"says with respect to suits for alimony after a divorce _a mensa
et thoro_, as there is no court in Virginia which possesses
jurisdiction in such cases, there can be no room for suits of this
nature; unless, perhaps, the High Court of Chancery should sustain
them as incidental to its equitable jurisdiction." "I believe," adds
Judge Carr, "that in practice the County Courts, sitting as courts
of equity, have assumed the power of giving separate maintenance in
cases of separation; but by what rule they have been regulated, I
know not."[1073]
[Footnote 1072: TUCKER, _Blackstone's Commentaries_ (1803), III,
94.]
[Footnote 1073: Case of Almond _v._ Almond (1823), 4 RAND.,
_Rep._, 662-68; also in 15 _Am. Decisions_, 781.]
But the colonial and state courts of equity, in "exercising the
authority, not of granting divorces, but alimony, where the latter
was the only relief prayed," seem to have acted contrary to the
more approved legal rule; and Bishop suggests that their course
may have been influenced by a misunderstanding of the policy of
the commonwealth. In the time of Cromwell "the ecclesiastical
courts were abolished; thereupon the equity judges were expressly
authorized, it appears by a clause in their commissions,[1074]
to decide causes of alimony, and after the Restoration their
decrees were by statute confirmed. Misapprehensions of this matter
have sometimes led to the inference that the equity courts took
cognizance of the question simply as of their own appropriate
jurisdiction, because of the extinguishment of ecclesiastical
tribunals, or as succeeding to them. But this obviously was not so;
since, had the jurisdiction been theirs, they would have exercised
it as well when there were ecclesiastical courts as when there
were none, for the latter never claimed it, their alimony being
only an incident in the divorce suit; and since any jurisdiction
which they might assume as successors of the defunct ecclesiastical
courts could have been only to decide causes of divorce, with their
incidental alimony, not to grant an alimony before unknown." The
granting of separate alimony without a divorce is now common in the
states;[1075] and, from whatever source the courts have derived
their power, it is entirely justifiable as satisfying a social
need. In the absence of statutory sanction justice may demand
that some existing body shall promptly grant relief; though it is
doubtless true that the authority to do so cannot be _logically_
assumed as the legitimate inheritance of equity tribunals from the
ecclesiastical courts.
[Footnote 1074: BISHOP, _op. cit._, I, §§ 1394, 1395; following
FONBLANQUE, _Equity_, 97, note. In Helms _v._ Franciscus, 12
BLAND, 544 ff., it is taken for granted that the equity judges
of the commonwealth _assumed_ the jurisdiction in question as
naturally coming to them; nothing is said of a statute conferring
it.]
[Footnote 1075: The subject is worked out in detail by BISHOP,
_op. cit._, I, §§ 1383-1421.]
The colonial law of Maryland on the subject does not differ
essentially from that of Virginia, although there are some
divergences of interest. Judicial divorces were not granted. A
number of early cases show that the high court of chancery took
cognizance of suits for separate alimony as naturally belonging
to its jurisdiction in the absence of ecclesiastical courts. Of
these perhaps the most important for the facts presented, though
the precise ground of the judgment is not clearly expressed, is
the action of Galwith _v._ Galwith which in 1689 came before the
provincial court on appeal from the court of Calvert county. The
record of the lower tribunal states that at the June term, 1685,
"the appellee, being the wife of the appellant," presented a
petition "setting forth, that within a few years certain false,
evil, and scandalous reports were raised and spread abroad against
her by some malicious persons," causing "great dissention and
difference between her husband and herself, insomuch that he
refused to entertain her in his house, or allow her a competent
maintenance elsewhere, by which she was reduced to great poverty and
want." Whereupon, in June, 1684, she "applied to the county court
for relief and redress therein, at which time the court hearing
and considering the premises, granted an order that her husband
should allow ... her 2000 wt. of tobacco for her maintenance the
year next ensuing." Now the "year was completed and ended, and her
said husband not being reconciled nor willing" to take back either
herself or the child, "which she hitherto had maintained," she
"would in a short time be brought to extreme poverty and necessity
without further assistance from the court." Therefore she prayed
that the court would give order that her husband might "take her
home to dwell with him, which she was desirous to do, or else
that he might be enjoined to allow her a competent maintenance
for herself and child." Accordingly the "said John Galwith" was
commanded to "take home his said wife Jane Galwith, to dwell with
him as man and wife ought to do; otherwise to allow ... her 3000 wt.
of tobacco a year, commencing from that day."
John then appealed to the higher tribunal, assigning for errors: (1)
that the county court passed judgment against him upon reading the
petition without calling him to answer, "so that he is condemned
unheard contrary to the law, and against the statute of _Magna
Charta_;" (2) that the county court had "no jurisdiction of the
matter in difference ... , being touching Alimony, which is not
recoverable there but in chancery, or the court of the ordinary;"
(3) that the county court cannot take "cognizance of matters
relating to causes of separation and divorce between man and wife,
but such matters are only triable and examinable in the court of the
ordinary."[1076] The judgment was reversed, but on what particular
ground we are not told; so that from the apparent inconsistency
of the last two specifications, one might be in doubt, were the
fact not well established, whether the high court of chancery had
jurisdiction; for surely alimony is strictly a matter "relating
to causes of separation and divorce," cognizance of which is said
in the report to belong in effect to the bishop of London as
ordinary. One point, however, seems clear: the county court had no
power in such causes; and that is what one would infer according
to the doctrine of the Virginia judges before quoted; for, unlike
the county courts of Virginia, those of Maryland had no equity
jurisdiction.[1077]
[Footnote 1076: Case of Galwith _v._ Galwith, 4 HARRIS AND
MCHENRY, _Reports_, 477, 478.]
[Footnote 1077: The act of 1639, engrossed but not finally
approved, gave the so-called "county court" power in certain
matrimonial causes belonging properly to ecclesiastical courts:
but this tribunal was really the predecessor of the provincial
court: BOZMAN, _Hist. of Md._, 106, 128, 129, 131, 604.]
Some other decisions of a later date throw light on the colonial
practice. In Macnamara's case, involving alimony, decided before the
Revolution, "the defendant claimed an appeal to the Arches Court
in England. His right thereto seems to have been acknowledged, it
does not appear on what principle."[1078] Again, in 1828, it was
declared in Farnshill _v._ Murray that "there never having been an
ecclesiastical court, and no power to grant a divorce by annulling
for any cause, a contract of marriage which was originally valid
ever having been conferred upon any of the courts of justice, it
follows that a divorce can only be granted by an act of the general
assembly;" but in the provincial era alimony was customarily
granted by the court of chancery.[1079] Similar evidence two years
later is afforded by the opinion in Helms _v._ Franciscus, where
the parties had a written agreement to live apart. In the absence
of the ecclesiastical court it is affirmed, "the high court of
chancery always had, even under the provincial government, entire
jurisdiction of such claims for alimony, or for separate maintenance
out of the husband's estate founded on his misconduct," but chancery
may not meddle with causes of marriage and divorce. Moreover, it
is laid down, apparently as the rule in the colonial as well as in
the modern period, that separate maintenance may be assigned by the
equity court only on the two grounds of misconduct admitted in the
ecclesiastical tribunals as proper reasons for a divorce _a mensa
et thoro_.[1080] It may also be noted that the jurisdiction in
suits for alimony, assumed prior to the Revolution by the courts of
equity, was later confirmed by statute. In 1777 it was enacted that
the "chancellor shall and may hear and determine all causes for
alimony, in as full and ample a manner as such causes could be heard
and determined by the laws of England in the ecclesiastical courts
there."[1081] Commenting on this act Bishop remarks that "as the
ecclesiastical courts in England had no power over alimony except
in connection with divorce, it would not have been an extravagant
interpretation to derive from this statute authority to decree
both divorce and alimony, to the extent exercised in those courts.
But it was held, instead, that the wife could have under it the
sort of alimony we are considering, for any cause authorizing in
England a divorce from bed and board, and even sometimes for other
causes;[1082] yet not the divorce."[1083]
[Footnote 1078: Macnamara's case, 2 BLAND, 566, note: BISHOP,
_op. cit._, I, § 1396 n. 3.]
[Footnote 1079: Case of Farnshill _v._ Murray, 1 BLAND, 479 ff.;
18 _Am. Decisions_, 344-50. _Cf._ the case of Utterton _v._
Tewsh, FERGUSON'S _Reports of Consist. Court of Sc._ (1811), 23.]
[Footnote 1080: That is, for cruelty and adultery: case of Helms
_v._ Franciscus (1830), 2 BLAND, 544 ff.; 20 _Am. Decisions_, 402
ff. _Cf._ the case of Wallingsford _v._ Wallingsford, 6 HAR. AND
J., 485.]
[Footnote 1081: By the same act it is provided that "the general
court may inquire into, hear and determine, either on indictment
or petition of either of the parties, the validity of any
marriage, and may declare any marriage, contrary to the table
in this act [table of forbidden degrees] or any second marriage,
the first subsisting, null and void," with appeal to the "court of
appeals."--_Laws of Md._ (Annapolis, 1799), I, Feb., 1777, c. xii,
par. xiv, xv.]
[Footnote 1082: Jamison _v._ Jamison, 4 _Md. Ch._, 289, 295. This
case is thus more liberal than Helms _v._ Franciscus just cited.]
[Footnote 1083: BISHOP, _op. cit._, I, § 1396. _Cf._ Hewitt _v._
Hewitt, 1 BLAND, 101: Crane _v._ Meginnis, 1 GILL AND J., 463, or
19 _Am. Decisions_, 237; Wright _v._ Wright's Lessee, 2 _Md._,
429, or 56 _Am. Decisions_, 723.]
It is just possible, finally, that absolute divorces were granted
in Maryland by the colonial assembly--a common practice after
the Revolution. "In this state," it was held in 1829, "the act
of divorcing man and wife has been performed by the legislature,
for the want, perhaps, of ecclesiastical authority to effect it,
or borrowing, perchance, the power from the parliament of Great
Britain.... However this may be, divorces in this state, from
the earliest times have emanated from the general assembly, and
can now be viewed in no other light than as regular exertions of
legislative power." But no evidence is forthcoming for the "earliest
times."[1084]
[Footnote 1084: Case of Crane _v._ Meginnis, 1 GILL AND J., 468;
19 _Am. Decisions_, 237-42. _Cf._ also Wright _v._ Wright's
Lessee, 2 _Md._, 429, or 56 _Am. Decisions_, 723-33.]
The law and custom prevailing in the Carolinas are in harmony with
those of Virginia and Maryland, and need not here be considered.
The same is probably true of Georgia, as appears from the case
of Head _v._ Head, which will receive some notice in another
connection.[1085] From the opinion in this suit we infer that in
the colonial period the English common law, including the law
administered by the ecclesiastical courts, governed the subject of
divorce. By an act of February 25, 1784, the common law and such
statutes as were in force "in the Province of Georgia in 1776,
so far as they were not contrary to the constitution, laws, and
form of government of the state," were adopted. Accordingly, up to
1784 an absolute divorce could not be given, and the only causes
recognized for a partial divorce were those of the common law. But
even such limited divorces were not granted; for there had been no
legislation on the subject, and therefore no courts existed in the
colony competent to act. Through exercise of its sovereign power
the legislature might, indeed, have granted divorces, partial or
complete, after the British model; and according to the opinion
in this case the legislature had exercised this function for
some time prior to 1798, when the constitution transferred the
primary jurisdiction in all cases from the legislative body to the
courts. "We have searched in vain," says Justice Nisbet, "for any
legislation upon the law of divorce before 1798. If the legislature
had passed laws declaring what would be good cause for divorce at
any time anterior to 1798, without controversy those laws would have
repealed the common law, and the _legal principles_ mentioned in
the constitution would have been referable to them. But there were
no such laws passed. It is true that, before 1798, the legislature
... did grant divorces upon special application.... These acts do
not even exhibit the grounds upon which they were passed." Thus
far the judge, apparently, is speaking of the period between the
Revolution and the constitution of 1798. We are not told by him
whether any legislative divorces were granted in the colonial era,
though that is highly improbable. At any rate, it is nearly certain
that the common law was not repealed by any provincial statute. For
"no such laws have come down to us. If there were any ... they are
too deeply buried beneath the deposits of time for our power of
revelation;" though, probably, a "diligent search in the colonial
records preserved in England, but not accessible to this court,
might convict us of error."[1086]
[Footnote 1085: See chap. xvii, sec. ii.]
[Footnote 1086: Case of Head _v._ Head (1847), 2 KELLY, _Georgia
Reports_, 191-211. _Cf._ on the same point, Finch _v._ Finch, 14
_Ga._, 362: and Brown _v._ Westbrook, 27 _Ga._, 102, which varies
from the two other decisions.]
III. ARBITRATION AND DIVORCE IN THE MIDDLE COLONIES
Touching the question of divorce the Middle Colonies held a place
much closer to the extreme conservatism of the South than to the
broad liberalism of New England. In New Netherland, indeed, it
was natural that the Reformation doctrines on this subject should
prevail. The civil courts exercised every kind of matrimonial
jurisdiction. Already we have seen them trying cases of breach of
promise and annulling marriages for the lack of legal forms.[1087]
So also they possessed full power to dissolve the nuptial bond.
[Footnote 1087: See chap. xiv, above.]
As early as 1655 John Hicks obtained a divorce on account of his
wife's adultery, with leave to remarry. Two years later John George
Baldingh was granted a similar decree on the same ground. Anneke
Adriaens was released from her husband for bigamy in 1664.[1088]
In 1674, the year of interregnum, Governor Colve, with the fiscal
and council, heard the petition of Catrina Lane for "letters
of divorce" from her husband Daniel, who, being accused of
committing a heinous crime, had broken jail and absconded. After due
consideration, the court ordered that a "divorce and separation"
should be granted if the husband do not within six months appear
and "purge" himself of the charge.[1089] The allowance of this
delay before a decree of divorce shall take effect, in case of
absence of the defendant, appears to be the rule; for in the same
year the prayer of Abigail Messenger, deserted wife of Richard
Darlin, for divorce with the privilege of remarriage, is for "cogent
reasons, provisionally postponed ... six months, during which time
the supplicant's husband is commanded to purge himself from this
accusation," or in default the supplicant shall be permitted to urge
her suit.[1090] Thirteen years earlier Laers, the Finnish priest
who later got himself into trouble by performing his own wedding
ceremony, is said, in a "meeting," to have secured a divorce from
his wife on account of her elopement with Jacob Jongh.[1091]
[Footnote 1088: These three cases are in the _New York Colonial
MSS._, 1630-1664: Dutch: Part First, VI, 49; VIII, 415, 417, 419;
X, 291, 293. They were first brought to light by COWLEY, _Our
Divorce Courts_, 32, 33.]
[Footnote 1089: This was a case of alleged incest: O'CALLAGHAN,
_Doc. Rel. to Col. Hist., N. Y._, II, 704.]
[Footnote 1090: Case of desertion and adultery: _N. Y. Col. MSS._
(translation from the Dutch), XXIII, 248; also, with slightly
different translation, in O'CALLAGHAN, _op. cit._, II, 730.]
[Footnote 1091: Case of elopement with adultery, Dec. 15, 1661:
GERARD, _The Old Stadt Huys_, 386, 387; also in O'CALLAGHAN, _op.
cit._, XII, 359, where we read: "This fine priest demanded with
great circumstantiality in the above-mentioned meeting a decree
of divorce on account of his wife's flight and received the same,
subject to your Honors' approval, on the 15^{th} of December"
(letter from Beeckman to Stuyvesant and others, dated at Altona,
South River, Feb. 1, 1662).]
In 1659 we find what appears to be a cause of separation from bed
and board with assignment of alimony. Since "Nicolaas Velthuyzen
cannot resolve to live any more in love with his wife," therefore
it is decreed "that he shall provisionally supply her with one
fat hog, two skepels of maize, according to his own offer for her
support, and further disposition shall be made for the maintenance
of her and her children."[1092] To this same year, also, belongs a
case which seems to be the complement of the English action for
jactitation. The plaintiff brings suit because the defendant has
privately accused him of having another wife; whereupon the court
orders the accuser to prove his charge.[1093] There is also mention
of a separation by mutual agreement made originally before the local
commissaries at Albany. A record of the higher court at New York in
1670 recites: "Whereas strife and difference hath arisen betweene
Albert Andriesen and Gertruyde Vosburgh his wife with y^e which
y^e commissaryes at Albany being acquainted" and, finding their
"Inclinations averse from living together as man and wife ought
to doe they did by consent make an Agreement of their Seperation
as likewise how their estates are to be divided betweene them."
Therefore the court doth "Ratifye and Confirme what hath beene
Already ordered as to that perticular by y^e which each partye is
to res[t] satisfyed without giving any further trouble upon this
occasion."[1094]
[Footnote 1092: _Records of New Amsterdam_, III, 73.]
[Footnote 1093: _Ibid._, 70. _Cf. ibid._, 370 (1661), for mention
of a case of seduction.]
[Footnote 1094: At "ffort James in New Yorke the 24th day of
October 1670."--MUNSELL, _Annals of Albany_, IV, 20.]
"Tender parents," writes Mrs. Earle, "could not unduly shelter a
daughter who had left her husband's bed and board. He could promptly
apply to the court for an order for her return to him, and an
injunction to her parents against harboring her. It has been plain
to see in all such cases which I have chanced upon in colonial
records that the Court had a strong leaning towards the husband's
side of the case."[1095] This fact appears in a case coming before
the local authorities of New Amsterdam in 1665, which, moreover,
affords an illustration of the sensible Dutch custom of arbitration
in such domestic differences. A trouble having arisen between Arent
Jureaensen Lantsman and his spouse Beletje, the burgomasters and
schepens refer the matter for adjustment "to reverend Dome. Johannes
Megapolenses and Dome. Samuel Driesius." If the arbitrators fail
to settle the difficulty by next court day, warning is given that
"proceedings may be expected according to the Style and custom of
law, as an example to other evil housekeepers." Later Lantsman
avers that his wife's parents will not listen to the arbitrators;
and so he prays that the court may order his wife to return to him.
Thereupon Beletje appears and says she will not return because
her husband has often broken his promises to amend. So the court
takes a hand on the husband's behalf, forbidding the wife's father,
Lodowyck Pas, to keep her above fourteen days, during which time
the consorts must be reconciled or else apply to the court again.
At the same time Lantsman is duly warned that if further complaint
of bad behavior be made, he shall be handed over to the "Honorable
Governor General to be punished by his Honor in such manner whether
by separation from bed and board imprisonment or otherwise as
by his Honor shall then be deemed proper as an example to other
householders." But the wife's parent seems to have disregarded the
mandate. For, later, sworn jurymen decide that "Beletje Lodowyck"
must return to her husband, and that her father shall no longer
harbor her without the husband's consent; and this verdict is
approved by the court.[1096] "A curious feature of this marriage
quarrel," adds Mrs. Earle, "is the fact that this Lantsman, who was
so determined to retain his wife, had been more than recreant about
marrying her. The banns had been published, the wedding-day set,
but Bridegroom Lantsman did not appear. Upon being hunted up and
reprimanded, his only proffered excuse was the very simple one that
his clothes were not ready."[1097]
[Footnote 1095: EARLE, _Colonial Days in Old New York_, 48.]
[Footnote 1096: For this case (July 11, 1665) see VALENTINE,
_Manual of the Corporation_ (1852), 486, 487, 489, 494.
Some further details are given in the _Records of New Amsterdam_,
V, 262-65: "Lodowyck Pas, his wife and daughter (the wife of
Arent Jurriaansen Lantsman), entering the aforesaid Lantsman's
wife's request to be divorced from her husband, as she cannot
keep house with him. Decreed to postpone the matter until the
next court day when the said Lantsman is to be heard and the
aforesaid Lodowyck Pas was allowed to retain his daughter with
him during that time" (262). Then Beletje produces a remonstrance
against being obliged to go to her husband (263). Lantsman next
appears, and is ordered to produce his witnesses by next court
day (264, 265). No further mention of the matter appears in
these documents. Whether the proceedings just indicated were
preliminary or after failure of arbitration is, of course, not
clear; but the former seems more probable.]
[Footnote 1097: EARLE, _op. cit._, 49.]
A few other cases of separation, occasionally with arbitration, have
been gleaned, some of them occurring long after the English rule
began. For example, William Hallet petitions "that his wife may be
obliged to live with him agreeably to the decision of referees,
or in the case of her refusal to comply, that he be granted a
divorce."[1098] Whether his prayer was allowed we are not told. In
1697 Daniel Vanolinda prayed "that his wife be 'ordyred to go and
live with him where he thinks convenient.' The wife's father was
promptly notified by the Albany magistrates that he was 'discharged
to shelter her in his house or elsewhere, upon Penalty as he will
answer at his Perill;' and she returned to her husband."[1099] The
same writer from whom the record of this case is borrowed says
"Nicasius de Sille, magistrate of New Utrecht and poet of New
Netherland, separated his life from that of his wife because--so he
said--she spent too much money," and also because "she was too fond
of schnapps,--which her respected later life did not confirm."[1100]
Likewise "when Anniatje Fabritius requested an order of court for
her husband to vacate her house with a view of final separation
from him, it was decided by the arbitrators that no legal steps
should be taken, but that 'the parties comport themselves as they
ought, in order that they win back each others affections, leaving
each other in meanwhile unmolested'--which was very sensible
advice. Another married pair having 'met with great discouragement'
(which is certainly a most polite expression to employ on such a
subject), agreed each to go his and her way, after an exact halving
of all their possessions."[1101] But the most remarkable case of
reconciliation through help of the court is that of Anneke Schaets,
daughter of Domine Schaets, first minister at Fort Orange. It
seems, according to Mrs. Earle, that her conduct had in some way
scandalized her father's congregation, so that she "refrained from
contaminating attendance at communion;" whereupon the dominie, out
of resentment, quarreled with the brethren and persisted in "ripping
up new differences and offences." At last, after being removed from
his clerical office for disobeying a judicial summons, matters were
adjusted. Anneke "was ordered off to New York to her husband, 'with
a letter of recommendation; and as she was so headstrong, and would
not depart without the Sheriff's and Constable's interference, her
disobedience was annexed to the letter.'" The record of the court
made in July, 1681, runs as follows: "Tho: Davidtse promisses to
conduct himself well and honorably towards his wife Anneke Schaets,
to Love and never neglect her, but faithfully and properly to
maintain and support her with her children according to his means,
hereby making null and void all questions that have occurred and
transpired between them, but are entirely reconciled: and for the
better assurance of his real Intention and good Resolution to
observe the same, he requests that two good men be named to oversee
his conduct at New York towards his said wife, being entirely
disposed and inclined to live honorably and well with her as a
Christian man ought, subjecting himself willingly to the rule and
censure of the said men. On the other hand his wife Anneke Schaets,
promises also to conduct herself quietly and well and to accompany
him to New York with her children and property, not to leave him
any more, but to serve and help him and with him to share the
sweets and the sours as becomes a Christian spouse: Requesting all
differences which had ever existed between them both may be hereby
quashed and brougt no more to light or cast up, as she on her side
is heartily disposed to. Their Worships of the Court Recommend
parties on both Sides to observe strictly their Reconciliation now
made."[1102]
[Footnote 1098: _New York Col. MSS._, XXIII: _Calendar of Hist.
Man._ (1664-1776), 26; _cf. ibid._, XXIII, 269, 390; XXV, 84, 85.]
[Footnote 1099: EARLE, _op. cit._, 48, 49.]
[Footnote 1100: _Ibid._, 50.]
[Footnote 1101: _Ibid._]
[Footnote 1102: Quoted from EARLE, _op. cit._, 46, 47.]
If one may judge from the scattered fragments of court records thus
preserved, the little settlements in New Netherland and early New
York were afflicted by their fair share of domestic ills. In the
main, however, family life was placid and prosaic. Few cases of
absolute divorce, or even of permanent separation, occurred; and
this is probably due, at least in part, to the system of friendly
arbitration and to the kindly paternalism of the Dutch magistrates.
After the conquest, according to the weight of legal
authority,[1103] the people of New York province acquired the rights
and privileges of the English common law. The ecclesiastical courts
were "regular tribunals of England, and the law administered in
them" a part of the general law of the land.[1104] But so far as
divorce is concerned, in New York, as in the southern colonies, this
law was practically in abeyance throughout the entire provincial
era. The code of the duke of York, it is true, does contain a
provision on this subject. It is there declared that "In Cases
of Adultery all proceedings shall bee accordinge to the Lawes of
England which is by Divorce (if sùrd) Corporall punishment or fine
and Imprisonment."[1105] In substance, therefore, separation from
bed and board, not complete divorce, is thus sanctioned for the
scriptural ground. But this provision in its practical result does
no more than say that the English law regarding judicial separation
_a mensa et thoro_ shall be recognized in the colony, and such
would have been the case without it. From the beginning it must
have been a "dead letter;" for no tribunal was clothed by statute
with adequate jurisdiction to enforce it. Possibly for a time the
old Dutch law and customs were in practice accepted as partially
binding. We have just seen evidence of the survival of arbitration
in cases of separation, and of marital reconciliations managed and
recorded by the courts. But, unless granted on this authority in
the brief period of transition, judicial divorce _a vinculo_ ceased
in New York with the English conquest. According to Chancellor
Kent, who may not be quite accurate, "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."[1106]
[Footnote 1103: See Chancellor Kent, in Williamson _v._
Williamson, 1 JOHNSON, _Chancery Rep._, 488, 491, 492; and
Chancellor Walworth's decisions in Wood _v._ Wood, 2 PAIGE,
_Chancery Rep._, 108, 111; North _v._ North, 1 BARBOUR, _Chancery
Rep._, 241, 245: 43 _Am. Decisions_, 778; and Burr _v._ Burr, 10
PAIGE, _Chancery Rep._, 20, 35. _Cf._ BISHOP, _Mar., Div., and
Sep._, I, §§ 132, 133, notes; and STORY, _Commentaries_, I, 80,
81.]
[Footnote 1104: BISHOP, _op. cit._, I, § 109.]
[Footnote 1105: _Duke of Yorke's Book of Laws_: in LINN, _Charter
and Laws_, 63.]
[Footnote 1106: KENT, _Commentaries_, II, 97, 98.]
Subsequent to the meeting of the first assembly of the province in
1683 the writer has found no evidence of a legislative divorce,
though there is preserved a copy of what appears to be a circular
letter from King George III. in 1773, commanding the provincial
governors "not upon any pretence whatsoever" to give their assent
to any bill "that may have been or shall hereafter be passed by the
Council and Assembly of the Province under your government for the
naturalization of Aliens, nor for the divorce of persons joined
together in Holy marriage nor for establishing a Title" to lands
originally acquired by aliens before naturalization.[1107]
[Footnote 1107: Letter of Nov. 24, 1773: O'CALLAGHAN, _Doc. Rel.
to Col. Hist., N. Y._, VIII, 402; also in _New Jersey Archives_,
X, 411, 412.]
But if the legislature declined to interfere, during the early
period the executive stepped into the breach. Cadwallader Colden,
who died in 1776, tells us that "the Governors of New York took
on them the power of granting divorces which has been in disuse
at least ever since the revolution neither is there any court in
this province that can give this remedy tho' in the neighboring
Colonies a divorce is more easily obtained than perhaps in any other
Christian Country;" and he significantly raises the "Query whether
this may not be for the advantage of a new country which wants
people. It is certain that the natural increase of People in New
England has been very great perhaps more than in any other of the
English Colonies."[1108]
[Footnote 1108: Colden, _Letters on Smith's History of New York_:
in _Coll. N. Y. Hist. Soc._, Fund Series, I, 1868, 187.]
Colden's declaration that divorces, even by authority of the
governor, were not granted after the revolution of 1689 harmonizes
with the statement of Chancellor Kent. A petition for such executive
relief is preserved among the New York Colonial Manuscripts. In
this case Richard Wood, who avers that he has lived in Westchester
"about fifteen years," during all which time he "hath endeauoured
to demeane himselfe as a true and loyall subject and serviceable in
his generation," prays for separation from his wife Mary on account
of "her most abominable words and actions" purposely designed to
"breed difference" between them. The petition is addressed to
Governor General Andros; but no record of his excellency's action
in the premises is forthcoming.[1109] The granting of divorces by
executive authority is unprecedented; and it is just possible that
the governors immediately after the English occupation believed
their action in such cases in a way sustained by the duke's law;
though this hypothesis is scarcely probable.
[Footnote 1109: _New York Col. MSS._, XXV, 84. Here is the
document in full, though some phrases are hard to decipher:
"To the Right Honr^{ble} Maij Edmo^{nd} Andross, Gouev^{nr}
Gen^{ll} of all his Highnes Territories in America:
"The Humble Petiton of Richard Wood:
"Humbly: Sheweth:
"That whereas your Honou^{rs} Petitioner haueing liue under his
Highness Jurisdiction in Westchester about fifteen years, during
w^{ch} time your petitioner hath endeauoured to demeane himselfe
as a true and Loyall subject and serviceable in his generation,
to the best of his power, but through the unchastity and
disloyalty of y^e petitioners wife by name Mary Wood, sustained
great detriment and endured a very troublesome and vexatious
liueing to the Dishonour of God, and repugnant to the holy bond
of wedlock, she haueing as much as in her lay endeauoured the
totall ruine and destruction of your petitioner, by her most
abominable words and actions, haueing openly confessed she hath
defiled her marriage bedd, and that purposely to breed difference
between your petitioner and her selfe, notwithstanding y^e
petitioner endeauoured to reclaime her, by all means lawfull,
who yet continued the same and rather worse, and now purposely
absented her selfe by reason she knows her selfe guilty and to
prevent that shame and punishment due to her base and wicked
actions....
"Y^r Petitioner humbly beggs your Hon^{rs} would bee pleased to
take your petitioners sad case into consideration, and if it
shall seem good in your Hon^{rs} sight a separation may be made,
otherwise noe [illegible] can be expected but a sad euent of such
deplorable doings.
"and y^e Petitioner shall for
Euer Pray as in Duty bound."
]
For the other middle colonies the story is soon told. New Jersey
is in the same position as New York under English rule. The
statute book is silent on the subject of divorce. If divorces
were permitted at all, it must have been by legislative
authority; unless, indeed, in the early period, as in the
sister-province, the governors assumed the power to act.
The Great Law of 1682 for Pennsylvania authorizes divorce on
the scriptural ground. The punishment for adultery prescribed
by this statute may be compared with the penalties mentioned in
the early New England and New York codes. One convicted of that
crime "shall for the first offence be publicly whipt and suffer
one whole year's imprisonment in the house of correction, at hard
labor, to the behoof of the publick, and longer if the Magistrate
see meet. And both he and the woman shall be liable to a Bill
of Divorcement, if required by the grieved husband or wife,
within the said term of one whole year after Conviction." For a
second offense the penalty is "imprisonment in manner aforesaid,
During Life." If the husband or wife sins with a person who is
unmarried, then for the first offense either shall suffer half a
year's imprisonment; and for a second transgression, imprisonment
for life.[1110] Nearly the same penalties are imposed for
incest[1111] and for bigamy.[1112] It will be noticed that the
Great Law, which was re-enacted in later statutes, deals with
divorce much in the same spirit as does the duke of York's code.
In each case divorce is allowed for the one scriptural cause; but
whereas the New York statute plainly intends the separation to
be merely from bed and board, "according to the law of England,"
on the other hand, by its peculiar terms, the Pennsylvania act
seems to authorize "bills" for complete dissolution of wedlock.
However that may be, in this case, as in the other, the law has
no practical significance; for, with one exception below named,
the jurisdiction of the English spiritual courts was not devolved
upon any of the provincial tribunals. Accordingly, the historian
Gordon, in his summary of the laws of the colony, is able to say
that these "made no general provision for the dissolution of
marriage; and divorce from bed and board was allowed in case of
bigamy only, on request of the first wife or husband, made in one
year after conviction."[1113]
[Footnote 1110: LINN, _Charter and Laws_, 109, 110. This
provision was abrogated by William and Mary, 1693, but re-enacted
the same year: _ibid._, 110, note, 194 (the re-enacted law).
By the Dutch code fornicators, if single, are to marry or pay
a heavy fine; O'CALLAGHAN, _Ordinances_, 495. Under the duke
of York the penalty is marriage, fine, or corporal punishment,
in the discretion of the court: _Duke of Yorke's Book of
Laws_: in LINN, _Charter and Laws_, 27. The New Jersey laws of
"Carteret's time" (_ca._ 1675) contain the same provisions:
LEAMING AND SPICER, _Grants_, 107; and the Pennsylvania statutes
authorize the county court to impose "all or anie" of these three
penalties: LINN, _op. cit._, 145, 210; BIOREN, _Laws_, I, 2, c.
3.]
[Footnote 1111: For incest the guilty person "shall forfeit
one-half of his estate, and both suffer imprisonment a whole
year, in the house of Correction, at hard labour, and for
the second offence, imprisonment in manner aforesaid during
life."--LINN, _op. cit._, 110; abrogated and re-enacted in 1693:
_ibid._, 194; and a similar law was passed in 1700: BIOREN,
_Laws_, I, 2, 6.]
[Footnote 1112: For bigamy, according to the Great Law, whosoever
shall be "Convicted of having two wives or two husbands, att one
and the same time shall be imprisoned all their Lifetime in the
House of Correction, at hard labour, to the behoof of the former
wife and children, or the former husband and children." When one
of the persons is single and the other married, the penalty is
the same: LINN, _op. cit._, 110, 111; abrogated and re-enacted in
1693: _ibid._, 194; and again in substance re-enacted in 1700:
BIOREN, _Laws_, I, 2, 6.]
[Footnote 1113: GORDON, _Hist. of Pa._, 557. But GORDON (_op.
cit._, 70) is in error when he states that by the Great Law
divorce was sanctioned after a "second" offense; and regarding
this law some other mistakes occur.]
Absolute divorces were, however, granted by legislative authority.
Of these an example occurs in 1769, when there was laid before
the council a "Bill sent up by the Assembly for the Governors
concurrence, entitled 'An Act to Dissolve the Marriage of Curtis
Grubb, of the County of Lancaster, Iron Master, with Ann, his wife,
late Ann Few,'" and to enable them to contract further matrimony.
After amendment this bill was approved, and Curtis was allowed
to "take to Wife any other woman during the Natural Life of the
said Anne, in the same manner as he might or could do if she, the
said Anne was actually Dead."[1114] In the same way, on March 21,
1772, the "marriage of George Kehmle of the City of Philadelphia,
Barber, with Elizabeth, his wife," was dissolved; but on April 27,
1773, the decree was declared void by the king in "an Instrument of
Writing under the Privy Seal;" and on the 11th of next October the
royal veto was published by a proclamation of the governor, Jonn
Penn.[1115] There is also extant an example of annulment of wedlock
by the legislative body. On March 20, 1772, a bill to declare
void the "pretended marriage of Rebecca Vanakin with a Certain
John Martin" was presented to the governor; but after six months'
deliberation, on September 19, it was returned to the assembly with
his excellency's veto.[1116] There is no evidence to show, however,
that divorces either partial or absolute were at all common in the
Quaker province.
[Footnote 1114: _Pa. Col. Rec._, IX, 564, 566, 567, 568, 580.]
[Footnote 1115: _Ibid._, X, 26, 42, 104, 105.]
[Footnote 1116: _Ibid._, 40, 53, 54, 55, 104, 105.]