Part 3 — CHAPTER XV DIVORCE IN THE AMERICAN COLONIES
Reading edition
[Bibliographical Note XV.—The most valuable original material for the history of divorce in Massachusetts during the period of the first charter is afforded by the decisions of the court of assistants in the exercise of its primary jurisdiction. These may be found in Vol. I of the Colonial Records, to September 7, 1641; the Barlow MS. Records of the Court of Assistants, October 28, 1641, to March 5, 1643/44; published by Whitmore in Bibliographical Sketch of the Laws of the Mass. Colony (Boston, 1890); and, after an interval for which the record is missing, in Noble's Records of the Court of Assistants, March 3, 1673, to March 23, 1691/92 (Boston, 1901). A number of cases have been found in the MSS. Early Court Files of Suffolk, supplemented by the MSS. Records of the County Court of Suffolk, and the MSS. Records of the County Court of Middlesex. The Massachusetts Colonial Records are, of course, very important. There is an instructive passage in the first volume of Hutchinson's History of Mass. (Salem, 1795); and much aid has been given by Whitmore in the work already cited; Newhall, Ye Great and General Court (Lynn, 1897); Goodwin, Pilgrim Republic (Boston, 1888); and Cowley, Our Divorce Courts (Lowell, 1880). The last-named work in part had already appeared in the Albany Law Journal, XX (Albany, 1879). It may be read in connection with the same writer's Famous Divorces of All Ages (Lowell, 1878); and his Browne's Divorce and its Consequences (Lowell, 1877). For the period of the second charter the divorce record is missing until 1739. Between that date and 1760 the Suffolk Files already mentioned yield eleven cases. From 1760 to 1786 there is a continuous and apparently complete record in a MS. "Divorce" book in the office of the clerk of the supreme judicial court for Suffolk county.
An interesting petition may be found in the eighth volume of the Collections of the New Hampshire Historical Society; and in general for all the New England colonies the records and the various collections of laws mentioned in Bibliographical Note XII have been used. Durfee, Gleanings from the Judicial History of Rhode Island (Providence, 1883), and Arnold, History of the State of Rhode Island (New York, 1874), are also helpful. Trumbull, Appeal to the Public (New Haven, 1788), gives some statistics in connection with the alleged laxity of Connecticut divorce laws; but historically his statements are misleading and very inaccurate.
In the southern colonies the English divorce laws were in abeyance, except in case of separate alimony. The meager materials existing for a "negative" sketch are therefore derived almost wholly from the judicial decisions. Among these—cited more fully in the footnotes—the most instructive are: for Virginia, Fulcher v. Fulcher, in 1 Palmer's Calendar of Va. State Papers (Richmond, 1875), 29; Purcell v. Purcell, 4 Hening and Munford's Reports (Richmond, 1854), 506; and Almond v. Almond, 4 Randolph's Reports, 662, or 15 American Decisions, 781. For Maryland, Galwith v. Galwith, 4 Harris and McHenry's Md. Reports (Annapolis, 1818), 477; Farnshill v. Murray, 1 Bland's Reports, 479, or 18 American Decisions, 344; Helms v. Franciscus, 2 Bland's Reports, 544, or 20 American Decisions, 402; Wallingsford v. Wallingsford, 6 Harris and Johnson's Reports, 485; Macnamara's case, Scott's case, Govane's case, all in 2 Bland's Reports, 566, 568, 570; Crane v. Meginnis, 1 Gill and Johnson's Ch. Reports, 468, or 19 American Decisions, 237; Wright v. Wright's Lessee, 2 Md. Reports, 429, or 56 American Decisions, 723; and Jamison v. Jamison, 4 Md. Ch. Reports, 289, 295. For Georgia see Finch v. Finch, 14 Georgia Reports, 362; and especially Head v. Head, 2 Kelly's Reports, 191.
The New York Colonial MSS. preserved in the State Library at Albany have yielded several documents of importance for the chapter. Cadwallader Colden, the last governor of the province, has an instructive passage in his Letters on Smith's History of New York: Collections New York Historical Society, Fund Series, I, 1868, showing that in the early period divorces were granted by the royal governors. Various cases and illustrations have been gleaned from Gerard, The Old Stadt Huys; Valentine, Manual of the Corporation; Records of New Amsterdam; Munsell, Annals of Albany; Duke of Yorke's Book of Laws; New Jersey Archives; O'Callaghan, Ordinances; and especially O'Callaghan and Fernow, Documents—all of which have been described in Bibliographical Note XIV. A number of extracts from old records have been borrowed from Alice Morse Earle's excellent book Colonial Days in Old New York (New York, 1896); and among the decisions cited, Chancellor Kent's opinion in Williamson v. Williamson, Johnson's Chancery Reports, 488, 491; and that of Chancellor Walworth in Wood v. Wood, 2 Paige's Chancery Reports, 108, 111, bearing on the validity of the common law in the province, are of special interest.
The materials for Pennsylvania are furnished by Linn, Charter and Laws; the Colonial Records of Pennsylvania; Bioren, Laws (Philadelphia, 1803); and Gordon, History of Pennsylvania (Philadelphia, 1829). Lastly, for the entire group of colonies, Kent, Commentaries (Boston, 1884); Story, Commentaries (Boston, 1891); and particularly Bishop, Marriage, Divorce, and Separation (Chicago, 1891), have been of service.]
I. IN NEW ENGLAND
Under normal conditions civil divorce is the counterpart of civil marriage. Naturally, in the New England colonies the same influences which determined the rise of civil marriage secured also the adoption of a liberal policy respecting divorce. In each case there was a reaction against the forms and abuses of the ancient canonical and ecclesiastical systems; while at the same time the innovations were in a measure sustained by appeal to the Levitical code. Everywhere as a result the ideas of the Reformation Fathers—the general trend of Protestantism—found effective expression in statute and judicial decree. For in most respects throughout New England the broad modern doctrines of the Reformatio Legum of Edward VI.'s commission, though scarcely even now completely victorious in the mother-land, were from the outset put in practice by both Puritan and Separatist. The American legal conception of divorce as pertaining, not to the criminal, but exclusively to the civil jurisdiction, had its birth in the seventeenth century.[947] In all the New England colonies the canonical decree of separation from bed and board was practically, though not entirely, abandoned. On the other hand, a dissolution of the bond of matrimony was freely granted for various causes, such as desertion, cruelty, or breach of the marriage vow; and usually, though not always, the husband and wife were dealt with as equals before the law. These general principles will be illustrated, somewhat in detail, by reference to the history of the particular provinces.
a) Massachusetts.—For the Bay Colony we have a concise summary from the pen of Governor Hutchinson, who presided in the divorce court for many years. "In matters of divorce," he says, "they left the rules of the canon law out of the question; with respect to some of them, prudently enough. I never heard of a separation, under the first charter, a mensa et thoro. Where it is practised, the innocent party often suffers more than the guilty. In general what would have been cause for such a separation in the spiritual courts, was sufficient, with them, for a divorce a vinculo. Female adultery was never doubted to have been sufficient cause; but male adultery, after some debate and consultation with the elders, was judged not sufficient. Desertion a year or two, when there was evidence of a determined design not to return, was always good cause; so was cruel usage of the husband. Consanguinity they settled in the same degrees as it is settled in England and in the levitical laws."[948]
By the code of 1660 the court of assistants, sitting twice a year, is given authority to hear and determine "all causes of divorce."[949] This is the only extant law on the subject for the period of the first charter. It is, however, almost certain that the assistants in the "quarter courts," or other tribunals, possessed such jurisdiction from the beginning. It is probably intended to be covered by the authority conferred on the quarter courts in 1639;[950] and the evidence of the Halsall case shows that as early as 1656 "the power of divorce doth properly belong" to the court of assistants. From the same case it has been inferred that the code of 1649 may have contained a like provision.[951]
Neither the right of appeal nor the causes or kinds of divorce are defined by the statutes. Information regarding these important points must be sought in the cases themselves. As a result of the failure of positive legislation, there is a lack of precision and harmony in the judicial practice of the entire colonial and provincial eras. For the period 1639-92, as shown in Table I, forty actions for divorce or annulment of marriage have been discovered. Thirty-one of these are mentioned by Newhall, Whitmore, Goodwin, and Cowley, not less than eighteen being found by the latter in the assistants' records for the years 1673-92, since edited by Mr. Noble.[952] The remaining nine cases are here added from further search in the court records and the Suffolk Files. The records of the court of assistants from 1644 to 1673 are missing; else doubtless the list might be considerably enlarged.
The first case thus far brought to light is that of James Luxford, elsewhere considered. On December 3, 1639, his bigamous marriage was declared void by the "Court of Assistants or Quarter Court;" and very righteously "all that he hath" as a kind of alimony was given to the woman last married and to her children.[953] A similar instance of having two wives was dealt with in November, 1644.[954]
TABLE I
Cases of Divorce and Annulment of Marriage in Massachusetts, 1639-92
No.Where Found[955]DateCaseCauseCourtDecree
1C.R., I, 283Dec. 3.Second wife v.AnotherAssistantsMarriage
1639Jas. Luxfordwife void
2W., 42Mar. 5,Anne v.Desertion,AssistantsMar.
1643/4Dennis Clarkeadultery dissolved
3W., 42;Nov. 13,Eliz. Frier v.AnotherAssistantsMarriage
C.R., II, 861644J. Richardsonwifeblhvoid
4C.R., IV, i, 32Oct. 16,Wm. v.Deser.,GeneralMar.
1650Eleanor Palmerremarriagecourtdissolved
5C.R., III, 277,May 26,Dorothy v.LongGeneralLeave to
IV, i, 8927,1652Wm. Pesterabsencecourtmarry
6C.R., III, 350,May 14,Dorcas v.Desertion,GeneralMar.
IV, i, 1901654Jno. Halladultery?courtdissolved
7Suff. Files, 257BeforeSam. and ApphiaNone givenAssistantsSee text
1656Freeman
8Suff. Files, 2571655-59Joan v.AdulteryAssists. toMar.
C.R., IV, i, Geo. Halsall general ct.dissolved;
272, 380, 401 reversed on ap.
9C.R., I, 85,June 9,Petition of Wm.None givenCo. ct. onDenied
IV, i, 259, 2691656Clements ref. of g. ct.
10C.R., IV, i, 282Oct. 14,Petition ofDeser.,Co. ct. onNone
1656Mary Batchilerremarriageref. of g. ct.appears
11C.R., IV, ii, 8May 22,Rachel v.None givenGeneralMar.
1661Jos. Langton courtdissolved
12C.R. IV, ii, 91Oct. 21,Mary v.DeficiencyGeneralDenied
1663E. White court
13Suff. Files, 651Sept. 9,Petition ofDeser.,AssistantsMar.
1664Sarah Helwisremarriage dissolved
14Suff. Files, 913Jan. 28,Christ. andAdult.,Assists.None
1668/9Eliz. Lawsoncruelty of h.;from co. ct.appears
bad cond. of wife
15Plym. Rec.,Aug. 3,James v.Desertion,GeneralMar.
v, 331670Eliz. Skiffeadulterycourtdissolved
16C.R. IV,Oct.,Eliz. v.Desertion,GeneralMar.
ii, 4651670Henry Stevensadultery?courtdissolved
17Suff. Files,Oct.,Kath. v.Adultery,AssistantsMar.
1148; N., 321672Ed. Nailercruelty dissolved
18Suff. Files,Mch. 4,Mary v.Deser.,AssistantsMar.
1360; N., 301674/5Wm. Sandersremarriage dissolved
19Suff. Files,1673-77Hugh andDiseaseAssistantsSep. b.b.?
1644; N., 91 Mary Druryand imp. of h.
20Rec. Suff. co.BeforePhilip andSee textSee textMar.
ct., 5061678Mary Wharton dissolved
21Suff. Files,Sept. 9,Hugh v.AnotherAssists.;Denied on
1741; C.R., V,1678Dorcas Marchhusbandapp. to g. ct.app.
205; N., 127.
22C.R., V, 188May 9,Mary v.LongGeneralLeave to
1678Henry Maddoxabsencecourtmarry
23N., 1271678Hope v.Desertion,AssistantsMar.
Sam. Ambroseadultery, failure dissolved
to provide
24N., 1381678Rebeckah v.None givenAssistantsMar.
Rich. Cooly dissolved
25Suff. Files,Oct. 15,Mary v.None givenGeneralMar.
1807; C.R., V,1679Aug. Lyndon courtdissolved
248, 249
26N., 1441679Mary v.Deser.,AssistantsMar.
Job Bishopremarriage dissolved
27N., 1471679Mary v.Assistants
Jos. White
28N., 1681680Sus. v.Deser.,AssistantsMar.
Ed. Goodwinfail. to prov. dissolved
29N., 1971681Sam. v.Adultery,AssistantsMar.
Mary Holtondesertion dissolved
30N., 2001681Dorcas v.Deser.,AssistantsMar.
Christ. Smithfail. to prov. dissolved
31N., 2081681Rachel v. AssistantsMar.
Lawrence Clenton dissolved
32N., 2271682Eliz. v.BigamyAssistantsMar.
Robt. Street dissolved
33N., 2291683Petition of AssistantsDenied
Ann Perry AssistantsDenied
34N., 2401683Eliz. v.Incest,AssistantsMar.
Nich. Maningdesertion dissolved
35N., 256, 2581684Sarah v. AssistantsMar.
Thos. Cooper dissolved
36Suff. Files, 2347Sep. 17, 1685Petition ofAdulteryAssistantsMar.
Thos. Winsor dissolved
37N., 3261690Phillip v.Deser.,AssistantsMar.
Hannah Gossremarriage dissolved
38N., 2421690-91Mary v.Adultery,Assistants
Sam. Stebbinsdesertion
39N., 3611691Hannah andAffinityAssistantsMarriage
Josiah Owen(bro's wife) void
40N., 3421690Sam. andAffinityAssistantsMarriage
Reb. Newton(uncle's wid.)void
Earlier in the same year "Anne Clarke" was released from her husband Dennis for desertion, "refusing to accompany with hir," and for living in adultery with another woman.[956] The case of Joan and George Halsall, 1655-59, is especially enlightening regarding the early law and procedure in divorce suits. Joan's original petition was presented to the general court, by which, as already noted, the matter was referred to the assistants for "final determination." In a later petition to the last-named tribunal the injured wife complains not only of her husband's "frequent abusing himself with Hester Lug," but "also of his wicked, constant & unsufferable expense" in "mulled sack and otherwise" with another woman of equally bad reputation, humbly asking that she "may be dismissed from her intolerable burden—an uncleane yoake-fellow."[957] The decree of the court is missing, but elsewhere we learn that her prayer was granted.[958] The fact is noteworthy; for seemingly this marriage was dissolved solely for the man's adultery.[959] If so, down to 1776, as will later appear, it is the only known clear exception to the rule mentioned by Governor Hutchinson. The case was, however, not yet ended. Halsall appealed to the general court; and so, on November 12, 1659, after the decree of the assistants had been in force for three years, it was declared void and George was allowed to "have and enjoy the said Joan Halsall, his wife, again."[960]
Jurisdiction on appeal thus belonged to the general court. This is further shown by the peculir case of Hugh and Dorcas March. In 1678, for "ye peace & satisfaction" of his conscience, Hugh asked the court of assistants to decide whether he might legally retain Dorcas as his wife, alleging that her former husband was living and hinting that a divorce from him had never been secured. With much parade of law and logic, in a long and vague petition, probably drafted by his attorney, he betrays far more anxiety to get rid of his spouse than to quiet the throes of an outraged conscience. The secret of this is clearly disclosed by Dorcas in the counter-petition, written by her own hand, and proving her to be a better lawyer than her husband's counsel. It seems she had been "for some yeares ye wife of Benoni Blackleach," with whom she had formerly lived in Connecticut. About nine years before the present action Blackleach "was taken in a crime worthy of death by ye Law," but he escaped from his captors. Six months thereafter he sent her a letter saying he dared not call her his wife, and subscribing himself her "friend not husband." Later, not knowing for six years whether he was living or dead, Dorcas came to her friends in Massachusetts, bringing with her, on the advice of "ye honored Gouernor Winthrop," the "testimonys" sworn against her guilty consort. These, together with a petition for the determination of her status, she laid before "ye honord Court in Boston," Governor Winthrop being present when the case was "agitated." This tribunal adjudged her a "free woman," as "some of ye honored Magistrates did tell" her.[961] Presently she was solicited in marriage by March, he giving her an "Ingagement vnder his hand of one hundred pounds of ye best of his estate," promising "yt he would remove his children from him yt they might not make any disturbance between" them. Then they were "published," joined in wedlock "by ye honord Deputy Governor," and thereafter "Lived comfortably." Next we reach the heart of the business. Hugh's children "liveing in ye familie" did "shamefully slight" her, purloining from her box the said "writing" of a hundred pounds; and their father disowned her as his wife. This conduct, she suggests, is due to a desire to "please his children" rather than to the scruples of a tender conscience. The magistrates were not moved by her plea. According to the record, "It was put ... whither Hugh March & said Dorcas might still lawfully live as man & wife;" and "the Court Resolved it in the Negative."[962] With this decree Hugh was not content. So on October 2, 1678, he prays the general court "to put a full Determination to the case." After a fortnight that body responded by overruling the lower court's decision, and declaring that the "sajd March ought to take the sajd Dorcas & reteyne hir as a wife, and to obserue & fullfill the marriage covenant according to his Engagement."[963]
In 1668 a petition to the county court of Suffolk for a "bill of divorce" was referred to the assistants, because it "was not proper to the cognizance" of the former body.[964] On the other hand, in the exercise of its superior authority a case might be sent to the lower court with power to render a final decree. Thus in May, 1656, was so referred "unto County Court of Charlestown" the petition of William Clements of Watertown, "craving a divorce from his wife who for several years hath refused marriage fellowship with him."[965] The lower court proved conservative. Not only was a divorce denied, but the couple were commanded to "own each other according to their marriage covenant," on pain of being "severely punished" for refusal.[966]
The general court was at once the legislature and the supreme judicial tribunal of the colony. In relegating the trial of divorce suits to the court of assistants it by no means surrendered its right to exercise the primary jurisdiction. A number of cases make it almost certain that it entertained and decided such cases in the first instance. William Palmer was so divorced in 1650.[967] Two years later Dorothy Pester, having waited "wth patience tenn yeeres for the retourne of her husband" William, prays "that she might not still be held in such bondage." Whereupon the court mercifully granted her "libertje to marry when God by his providence shall afoord her an Oppertunitje."[968] In the same way in 1654 Dorcas Hall was released on account of the desertion and other misconduct of her spouse.[969] "Rachel Langton, or Verney," was set "free from her late husband, Joseph," in 1661, no cause being assigned.[970] In 1663 the petition of Margaret Bennet in behalf of her daughter Mary White was denied.[971] A decree was granted in a peculiar form in 1670. In answer to the petition of Elizabeth Stevens, whose husband had deserted her and been guilty of "familiarity" with another woman, the "Court judgeth it meete to declare, that the petitioners marrying again another man shall not be indangered thereby as a transgression of our lawes."[972] The petition of Mary Maddox in 1678 alleges that her husband Henry had been absent unheard of for "a thirteen yeares." She was accordingly freed from the conjugal bond and put "at liberty to dispose of herself as she shall see meete."[973] Very generous alimony is sometimes allowed the injured woman. On October 15, 1679, because Augustine Lyndon "hath in so many Particulars Broken Covenant," his wife Mary is granted a full divorce, besides being awarded two-thirds of her husband's lands and the "small matter that now Remaineth in Deacon Allen's hands" for the use of herself and children, "till the County Court shall take further Order." The next day, on a second petition, additional property is decreed to the "late wife of Augustine Lyndon now Mary Sanderson," showing apparently that she was permitted to resume her maiden name.[974] The eight[975] divorces just enumerated are all granted by the general court on petitions precisely similar to those regarding other matters dealt with by that body in the first instance. To all intents and purposes they are "legislative" divorces; as much so, in fact, as are those so often sanctioned by the state legislatures during the present century.
The remaining cases mentioned in the table are for the most part very simple and require but little comment here. Two are only known from incidental notice in other records.[976] Four are contained in the Suffolk Files.[977] In one of these the divorced husband, who had broken the marriage vow and been guilty of "Inhuman Carriage & Satanic Cruelty" toward his wife and children, was banished ten miles from Boston; and later, when he was permitted to visit that town on business, he was required to give bond "to be on good behavior towards his late wife."[978] It is significant that during the seventeenth century not a single clear case of divorce from bed and board has been discovered in any of the Massachusetts records.[979]
During the period of the second charter divorce controversies and all matrimonial questions are to be "heard and determined by the governour and council,"[980] whose decrees may be executed by arresting and committing the "body" of the person disregarding them.[981] By a law of 1641 it had already been provided that the divorced wife, if the innocent party, should retain her right of dower in one-third of the husband's real property for life.[982] A later act makes provision for alimony. The "superior court of judicature" is empowered in case of divorce or nullity to assign the woman "such reasonable part of the estate of her late husband as in their discretion the circumstances of the estate may admit, not exceeding one-third part thereof."[983] As in the earlier period, the causes and kinds of divorce are not determined by legislation; but an act of 1695 declares that the penalty for "polygamy"—at this time death—shall not apply to those who marry when the husband or wife has been absent wilfully or unheard of "by the space of seven years together."[984] Three years later the term of absence is shortened, the law taking the form it sometimes has in the other colonies. It is provided that "if any married person, man or woman, has lately or shall hereafter go to sea in a ship or other vessel bound from one port to another where the passage is usually made in three months' time, and such ship or other vessel has not been or shall not be heard of within the space of three full years ... , or shall only be heard of under such circumstances as may rather confirm the opinion, commonly received, of the whole company's being utterly lost, in every such case the matter being laid before the governour and council, ... the man or woman whose relation is in this manner parted from him or her may be esteemed single and unmarried; and upon such declaration thereof, and license obtained from that board, may lawfully marry again."[985]
After 1692 the legislature does not seem to have interfered in divorce suits either on appeal or in the first instance. In a few cases the county court of general sessions of the peace is found granting separate maintenance. Thus in 1710/11, on petition of Elizabeth Goddard, two men are appointed to examine certain accounts of her husband John, and to "take into their hands for the use of the Petitioner what shall appear to be due to him."[986] In 1725 Dorothy, "the wife of John Jackson of Boston Starchmaker," asks for separate maintenance, alleging that her husband had utterly refused to provide for her support, and that she "would run the hazzard of her life in case she should attempt to Enter into his house." The court orders Jackson to take his wife home, support her according to his ability, "and keep his Majesty's Peace." On refusal, he is required to enter into recognizance in the sum of fifty pounds to make Dorothy a weekly allowance of eight shillings.[987]
TABLE II
Divorce Cases Before the Governor and Council of Massachusetts, 1739-60
(Found in MSS. Files of Suffolk County, Vol. DCCXCIII)
No.No. of FileDateCaseCauseDecreeHus. OccupationYears Mar.
1.2972627-12-38Gill v. Mary BelcharCoer. to mar. Yeoman
2.2972724- 6-40Jesse v. Grace TurnerIncapacityM. voidFarmer5
3.2972827- 4-44Eliz. v. Jos. BredeenIncapacity Carp't'r11
4.297295-12-52G. v. M. Rainer [Raymond]AdulteryM. diss.Husb'n
5.2973013- 6-51Eliz. v. Ezekiel EldridgeBigamyM. void 1
6.2973026-12-52Susanna v. Ezek. EldridgeDeser., remar.M. diss. 8
7.2973120- 2-53Ben. v. Jemima GreenAdult., bast.M. diss.
8.297329- 4-54Petition of Hannah Wood5 yrs. absence Lv. tom.Mariner
9.29733a1-11-54Mary v. Wm. ClaphamAdult., bast.Sep. b.b.Gent.
10.29733b-12-54Mary v. Geo. ArthurCr'l., was. est.Sep. b.b.Gent.13
11.29734- -57Dan v. May McCarthyAdulteryMariner
The history of divorce legislation is a complete blank for nearly half a century under the provincial charter. Between 1692 and 1739 the record of the governor and council in such suits is entirely missing. For the next twenty-one years, 1739-60, eleven cases have been gathered from the court files (Table II); while during the following twenty-six years, 1760-86, a continuous and apparently complete record, showing ninety-six cases, is contained in a manuscript volume preserved in the office of the clerk of the supreme judicial court for Suffolk county (Table III).
TABLE III
Divorce Cases Before the Governor and Council, or the Council, of Massachusetts, 1760-86
(From MS. Book of "Divorces" in Office of Clerk of Supreme Judicial Court, Suffolk County)
No.PageDate of DecreeCaseCauseDecreeHusband's OccupationYears Married
Charge[988]Specifications
1122- 4-60Wm. v. Eleanor Arbuthnot Adultery, elopementMar. dissolvedSoldier [officer]3
229- 6-60Henrietta v. Hugh Cane Bigamy, desertion, crueltyDeferred
3410- 6-60Jane v. Joshua Eustis Adultery, desertionMar. dissolved ¾
455- 6-60Petition of Eunice Coffin Five years'absenceLeave to marryMariner
568-10-60Mary v. Rich. Hunt CrueltyAccommodatedTruckman12
5a714- 2-61Mary v. Rich. Hunt Cruelty, failure to provideSeparate b. b.[988]
61111- 3-61Stephen v. Tabitha Lufkin Adultery, wasting estateMar. dissolved[988]Mariner6
71521- 4-62Petition of Ruth Woodberry Four years' absenceLeave to marryMariner
81629- 7-62Wm. v. Hannah Davidson BigamyMarriage voidGardener4
91814- 2-63Ed. v. Rebecca Holman AdulteryMar. dissolved[988]Husbandman8
102113- 7-63James v. Mary Torrey Adultery, elopementMar. dissolved[988] 8
112415- 2-64Eliz. v. Mark Keith Cruelty, refuses bedSeparate b. b. 2
12277-11-64Elias v. Bethia Parmenter Adultery, bastardMar. dissolved[988]Soldier [captive]9
132910- 4-65Ben. v. Lydia Ingersoll AdulteryMar. dissolved[988]Mariner
143220- 6-65Margaret v. Fred Knodle CrueltyDismissedYeoman
153314- 8-65Rachel v. John Wormley BigamyMarriage void[988] 8
163524- 9-66Russell v. Mary Knight AdulteryMar. dissolvedCooper14
17376- 5-67Thos. v. Abigail Hammet AdulteryMar. dissolvedYeoman17
184016-12-67Mary v. Jno. Fairservice Cruelty, adult., att. to poisonSeparate b. b.Trader13
19445- 2-68Ann v. Cornelius Vansise Desertion, failure to provideSeparate b. b.
204515- 6-68Jas. v. Mary Dougherty AdulteryMar. dissolved[988]Trader11
214814- 9-68Lucy v. Scipio Purnan Cruel., sells wife, fail. to prov.Separate b. b.Truckman7
225117- 4-70Jno. v. Anna BraggAdulteryAdulteryMar. dissolved[988]Cordwainer17
235416-7-70Wm. v. Susanna Chambers AdulteryMar. dissolved[988]Mariner15
245718-10-70Sam. v. Sarah Lefebure BigamyMarriage void[988]Mariner1
25599- 5-71Mary v. Henry Bates Bigamy, desertionMarriage void[988] 6
266219- 9-71Mehetable v. Josh. Nicholson BigamyMarriage void[988]Mariner[?]2
276423-10-71Jno. v. Jane Crosley AdulteryMar. dissolved[988]Ropemaker6
286628-10-71Cadwell v. Charlotte Ford Adultery, drunkennessMar. dissolvedHusbandman3
296817-10-71Abagail v. Jos. Bradstreet Desertion, sequest. fruits of wife's estateSeparate b. b.Physician1½
307010-12-72Jas. v. Hannah Richardson Adul., threats to life and pr'tyMar. dissolvedEsquire20
31733- 2-73Jos. v. Eunice Price Adultery, elopement, bastardMar. dissolved[988]Yeoman7
32754- 3-78Sarah v. Enoch Kingsley Desertion, remarriageMar. dissolved[988] 13
33782- 3-73Sarah v. Wm. Gould Cruelty, adult., ven. diseaseMar. dissolved[988]Merchant13
34804-11-73Martha v. Adam Air Cruelty, adult., fail. to prov.Mar. dissolvedTurner4
358315- 6-74Martha v. Wm. Jones Desertion, remarriageMar. dissolved[988]Tailor12
368515- 6-74Abigail v. John Pell Adult., ven. dis., fail. to prov.Mar. dissolvedGentleman10
378721-11-76Asaph v. Naomi LeonardAdulteryAdultery, elopementMar. dissolved[988] 28
3890?-12-76J. C. v. Mary LewisAdulteryAdulteryMar. dissolved[988]
399227- 5-77Isaiah v. Mary ThomasAdulteryAdulteryMar. dissolvedPrinter7
40965- 9-77Rosanna v. Wm. ScottAdulteryAdulteryMar. dissolved[988] 11
4110130- 1-78Joshua v. Sarah JayAdulteryAdulteryMar. dissolved[988]Innholder19
4210414- 7-78Wm. v. Sarah SturgisAdulteryAdulteryMar. dissolvedMariner
4310715-10-78Jas. v. Hannah ThompsonAdulteryAdultery, squandered estateMar. dissolved[988]Mariner2
4411025- 2-79Eliz. v. Samuel BemisAdulteryAdult., cruelty, fail. to prov.Mar. dissolved[988]Yeoman3
4511330-12-79Ed. v. Isabella DawesAdulteryAdultery, elopementMar. dissolved[988]Peruke maker9
4611728- 2-80Rose v. Timothy CorlesAdulteryAdultery, failure to provideMar. dissolved[988]Yeoman9
4712020- 2-80Deborah v. Ashael OwenAdulteryAd., des., remar., fail. to prov.Mar. dissolved[988] 28
4812219- 9-80Chloe v. Luke WelchAdulteryAdult., deser., fail. to prov.Mar. dissolved[988]Laborer [soldier]10
4912621- 9-80Alice v. Wm. GrayAdulteryAdultery, failure to provideMar. dissolved[988] 10
50128 14421- 9-80Sarah v. Valentine WheelerAdulteryAdultery, desertionMar. dissolved[988] 34
511316-10-80Mary v. Jno. MarshallAdulteryAdultery, desertionMar. dissolved[988] 26
5213422-12-80Rebecca v. Jacob DunnellAdulteryAdultery, desertion, bastardMar. dissolved[988]Mariner7
5313724- 1-81Geo. v. Phebe ShearmanIncapacityIncapacityMar. dissolved[988]
5414025- 1-81Eliz. v. Samuel BemisAdulteryCruelty, ven. dis., adult.Husbandman1½
5514526- 5-81Mary v. Geo. LobbCrueltyCruelty, failure to provideSeparate b. b.Mariner2
5614929- 9-81Amzi v. Jerusha DoolittleAdulteryAdultery, elopementMar. dissolved
5715029- 2-81Belah v. Amos MarshAdulteryAdultery, desertion,Mar. dissolvedHusbandman
5815329-11-81Abigail v. Jno. DanielsAdulteryCruelty, adult., wasted estateMar. dissolved 31
591563- 5-82J. P. v. Eliz. BarrereAdulteryHas bastardMar. dissolved
601583- 5-82David v. Mary HoitAdulteryAdult., bastard, elopementMar. dissolved[988] 11
611615- 6-82Rhoda v. Ben. PidginAdulteryDeser., remar., fail. to prov.Mar. dissolved 14
6216323-12-82Eliz. v. Thomas FinnecyAdult., crueltyAdultery, crueltyMar. dissolvedMariner4
6316525- 2-83Ebenezer v. Anna TarboxAdulteryHas bastardMar. dissolvedSailor [captive]3
6416615- 4-83Squire v. Dorcas BakerAdulteryHas bastardMar. dissolved[988]Soldier12
6516814- 5-83Ann v. David GardnerCrueltyCruelty, failure to provideSeparate b. b. 22
661704- 6-83Mary v. Stephen HolmanAdulteryAdultery, disease, desertion, failure to provideMar. dissolved 5
6717211- 6-83Z. W. v. Juda ThayerAdulteryDesertion, bastardMar. dissolved[988]Yeoman11
6817318- 6-83Thos. v. Rosanna CrippenAdulteryAdultery, elopementMar. dissolved
6917518- 6-83Alice v. Lemuel HillAdulteryAdultery, deser., remarriageMar. dissolved
7017619- 6-83Mime v. T. J. CarnesAdult., crueltyCruelty, bastardMar. dissolved 6
711783- 7-83David v. Mary HarwoodAdulteryAdultery, elopementMar. dissolvedHusbandman
721793- 7-83Sarah v. Stephen TempleAdulteryAdultery, esp. with daughterMar. dissolved 25
7318117-10-83Sam. v. Margaret CraftsAdulteryAdultery, elopement, bastardMar. dissolved[988]Laborer15
7418417-10-83Puella v. Sam KellyAdulteryAdultery, another wifeMar. dissolved[988]5
7518627-10-83Albert v. Ann FitchAdulteryAdultery, elopementMar. dissolved[988]Mariner6
7618829- 1-84Phin. v. Sybil ChamberlainAdulteryAdulteryMar. dissolved[988] 7
7718916- 2-84Sarah v. Abel SawyerAdulteryAdultery, venereal diseaseMar. dissolved 21
7819126- 2-84Jeremiah v. Mary HigertyAdulteryAdulteryMar. dissolved[988]Mariner14
7919226- 2-84Andrew v. Eliz. GageAdulteryBastard childrenMar. dissolvedMariner18
801944- 3-8Mary v. Wm. PedleyAdult., crueltyAdultery, crueltyMar. dissolved[988]Mariner5
8119616- 3-84Hannah v. David DudleyAdulteryCoresp. in 73, desertionMar. dissolved[988]24
8219816- 3-84Hannah v. Nehemiah AdamsAdulteryTurned wife out; took another womanMar. dissolved[988]Husbandman11
8319918- 3-84Sarah v. Francis RustAdult., crueltyAdultery, crueltyDeniedTrader5
83a20411- 6-84Sarah v. Francis RustCrueltyCrueltySeparate b. b.
8420110- 5-84Helena v. Jas. BayardCrueltyCrueltySeparate b. b.Mariner27
852024- 6-84Sibbla v. G. W. BabcockAnother wifeAnother wifeMar. dissolved[988]Mariner4
862056- 7-84Mary v. Thos. SmithAdulteryAdult., deser., fail. to prov.Mar. dissolved[988]Husbandman12
8720618-10-84Sarah v. Wm. VernonAdult., crueltyAdult., cruelty, fail. to prov.DeniedMerchant6
87a21421- 7-85Sarah v. Wm. VernonAdulteryAdultery with negressMar. dissolved
87b2221-11-85Sarah v. Wm. Vernon Suit for alimonyDenied
8820827-10-84Appey v. Jno. PumpellyAdulteryDeser., remar., fail. to prov.Mar. dissolved[988]24
8920916- 2-85Patience v. Wm. CornellAdulteryAdultery, turned wife outMar. dissolvedCordwainer21
902113- 3-85Sarah v. Jno. BackusAdulteryAdult., deser., fail. to prov.Mar. dissolved[988] 6
912123- 3-85Jacob v. Hannah MillardAdulteryAdultery, elopementMar. dissolved[988]Yeoman17
9221626-10-85Hannah v. Moses ElwellAdulteryAdultery, desertionMar. dissolved[988]Yeoman12
9321823-11-85Domin. v. Martha RecordAdulteryAdultery, elopementMar. dissolved[988] 17
9422024-11-85Jno. v. Hannah WalesAdulteryAdultery, intoxicationMar. dissolved 4
952248- 2-86Anna v. Ebenezer PeltonAdulteryBas., remar., des., fail. to pro.Mar. dissolved[988] 5
9622618- 2-86Rebec v. Ebenezer SimpsonAdult., crueltyAdult., cruelty, fail. to prov.Mar. dissolved[989]Blacksmith20
A glance at the tables exhibiting the more important details connected with these actions discloses several important facts. For the period covered by Table III the average yearly number of cases is less than four, although the number rapidly increases after 1780. It is significant that in twenty-three out of seventy-six instances, for both tables, when the occupation is known, the husband is entered as a "mariner." The wife is plaintiff in sixty-one out of one hundred and seven petitions; and in fifty-three of the ninety-six cases listed in Table III the defendant, though summoned, fails to appear at the trial. The courts, as in the early period, still hesitate to grant the wife a divorce when the husband's adultery is the sole ground assigned. Before 1776 there is not a single clear instance[990] of such a divorce, although after that date marriages are freely dissolved for this cause. Another important innovation is of somewhat earlier date. Twelve out of the one hundred and seven cases entered in the two tables—about one in nine—are separations from bed and board, the two earliest occurring in 1754. In five of these the petitioner asks for either partial or absolute divorce, as the court may determine. Thus in 1767 Mary Fairservice, whose husband was guilty of adultery and cruelty with attempt to poison, "humbly prays ... that the Bonds of Marriage ... may be dissolved, or otherwise if ... this cannot by Law be done, that she may be divorced from Bed and Board." According to the record the husband appears to have been overanxious for a complete release; so the court granted only partial divorce and gave the wife alimony, although she had not asked for it in her petition. On the other hand, in each of the other four cases a full dissolution of the marriage bond was decreed.[991]
Separation from bed and board was prayed for and granted in one instance which reveals the fact that cruelty, however aggravated, was not regarded as sufficient ground for a full divorce. This is the case of Lucy and Scipio Purnan, free negroes, decided in 1768. Although Scipio was in "good business" and lived "in good fashion," as we are told in the petition, he turned his wife out of doors and refused to provide for her support. Furthermore, in 1765, he "sold her to one William Alford who with the help of another man seized bound and gagged her at midnight and carried her off to Province of New York and there sold her 'being a black woman.'" After again being sold "she ran away back to Boston." Nevertheless Lucy sued for a mere separation with alimony and the custody of her child. The court granted her prayer, except that the child is not mentioned in the decree.[992] The conservatism of the court regarding this cause is further disclosed by the case of Sarah Rust in 1784. In her petition she asks for a dissolution of wedlock on the double ground of adultery and extreme cruelty. For lack of evidence as to the first-named offense sufficient to warrant either full or partial divorce, her prayer was denied, nothing being said in the decree concerning the charge of cruelty. Sarah then brought suit for cruelty alone, alleging that on the fifth of June, "as she was going into the yard of a dwelling house where a pitying friend has given her license to take shelter," Francis "waylaid & with a club beat & mangled her in a most atrocious and cruel manner," attempting to take her life. Accordingly the court allowed her a separation from bed and board.[993] An earlier case constitutes a notable exception to the policy of the court touching another ground of action. In 1771 Abigail Bradstreet got a partial divorce from her husband Joseph, who had abandoned her because he had "married a woman with less money than he might have expected." This case is unique; for in no other instance is separation granted where desertion alone without adultery or cruelty is charged.[994]
A few other cases illustrating general facts or principles may be mentioned. In only one instance is the common-law action against the adulterer referred to.[995] Suits for divorce or nullity on the ground of bigamous marriages are of frequent occurrence.[996] On October 15, 1751, Ezekiel Eldridge, indicted for feloniously taking two wives, pleaded guilty and "pray'd the Court that he might be allow'd the Benefit of the Clergy which was Granted him." He was "thereupon burnt in the hand in the face of the Court" and allowed to "go without day Paying Costs." Thereafter one of his victims secured a divorce and his marriage with the other was declared null and void.[997] In six cases the decree is preceded by previous written or oral agreement by the parties.[998] The petition in cases of long absence under the act of 1698 is illustrated by the case of Eunice Coffin, in 1760, whose husband had been absent on a whaling voyage for five years without word. "The Petitioner hath the highest reason to imagine that the sloop ... was lost at Sea, for ... a few day[s] after they sailed there was the most terrible Storm that had been known since Nantucket hath been settled." So the court adjudged Eunice single and granted her "license" to marry again.[999] Finally it may be noted that in one instance a negro slave was granted a divorce by the governor and council in the regular way.[1000]
b) New Hampshire, Plymouth, and New Haven.—The Massachusetts act of 1698 regarding desertion or long absence in precisely the same terms is embodied in the laws of New Hampshire,[1001] whose policy respecting divorce seems to have been identical with that of the Bay Province. The causes of divorce, except desertion, are not defined by law. As early as 1681, after the establishment of the independent government, the president and council appear to have possessed jurisdiction in such controversies. In that year a quaint petition is presented by Sarah Pearce, "not knowing where to find redress under Heaven but from your honorable council of this province," praying to be "disobliged" from her union with Hubbartus Mattoon with whom for "sundry years past she was married;" because, owing to more than seven years' wilful desertion, aggravated by unfaithfulness, she has been sadly disappointed in her hope of "a comfortable living with him;" and since, unless she mistake, by the "unerring rule of God and the laws of our nation," either or both of the causes assigned should free her from the nuptial bond. At the same time she humbly requests their honors in their justice to weigh "his strange embracement" of her estate while she lived with him; and his "solemn threatenings" since desertion to destroy her "by poison, or knocking of the head" if she come near him. Whether the court granted the petition does not appear.[1002]
For the other New England colonies a point of special interest is the existence of legislative divorce. The popular assemblies, bearing the name of "general courts," are seen freely passing decrees of divorce, and this function is usually exercised concurrently with the law tribunals or by way of supplementing their jurisdiction.[1003] From the record of proceedings in such cases many an interesting glimpse is obtained of the social life of the times. Thus the general court of Plymouth grants dissolution of wedlock for desertion and adultery; but the conservatism of public sentiment in this regard is shown by the fact that for the seventy-two years during which that colony existed as a separate jurisdiction only six instances of divorce have been discovered. The first case occurred in 1661, when Elizabeth Burge on the scriptural ground was released from her husband Thomas, who for his misconduct was sentenced to be severely whipped at Plymouth and again at Sandwich. The court took care that Elizabeth's temporal interests should be protected. Not only did she receive one-third of her late husband's "estate, viz., lands, goods, and chattles, as her proper right forever;" but with his consent she got also "an old cotton bed and bolster, a pillow, a sheet, and two blankets ... with some other smale thinges ... to the vallue of forty shillings."[1004] The experience of William Tubbs, of Scituate, is unique. His wife Marcye was notoriously unfaithful to her nuptial vow and eventually eloped with another man. So he sought a divorce; and accordingly in 1664, "after the patriarchal style," as Goodwin observes, William Paybody of Duxbury gave him a "writing of divorcement," with Lieutenant Nash and John Sprague as witnesses. This document the general court treated as a nullity, fining Paybody five pounds and each of the witnesses three pounds for their resort to self-help. But four years later that court came to his relief in the regular way. In July, 1668, after serving due notice on the libellee through letters addressed to the government of "Road Iland"—where "Goodwife Tubbs" had fled with her paramour—he was pronounced "legally cleare from his couenant of marriage formerly made with Marcye, his late wife," with the privilege of marrying again, "if hee see fit soe to doe;" while she is solemnly declared to have cut herself off from the "[p=]son" and "estate of the said William."[1005] For similar cause and on the same conditions John Williams was released from his wife Sarah in 1674.[1006] The next year "Edward Jenkins, of Taunton, petitioned that his daughter Mary be divorced from Marmaduke Atkinson, who had been out of the Colony and made no provision for her during seven years or more. The decision was a singular one; namely that while the court sees no cause to grant a divorce 'yett they doe apprehend her to be noe longer bound, but doe leave her to her libertie to marry if she please.'"[1007] This was probably the court's homely way of saying that, the common-law term of seven years' absence without word having expired, it regarded the marriage as ipso facto dissolved without judicial process, though a formal decree was the more prudent course in case a second marriage were contemplated.[1008] In the Plymouth records, as often elsewhere, the term "divorce," following common-law usage, is employed for a sentence of nullity in case of a void or voidable marriage. Thus in 1680 Nicholas Wade, of Scituate, and his daughter, Elizabeth Stevens, present a petition "wherein they complaine of a great and sore crosse," her husband being a man of "debauged life, expressed by his plurallitie of wifes." Elizabeth was therefore "dismissed" from her conjugal bond; while the "debauged" Stevens for his "abominable wickedness" was "centansed to be seueerly whipt att the post."[1009] The last case is that of John Glover of Barnstable whose marriage with Mary his wife was dissolved in 1686 on account of her unfaithfulness.[1010] It is significant that four of the six petitions just enumerated are brought against the wife on the scriptural ground and none against the husband for the same cause. From this fact it may perhaps be inferred that in Plymouth Plantation, as at that time in Massachusetts, male adultery was not recognized as a legal ground of divorce.[1011]
Similar illustrations of the life and thought of the times are afforded by the records of New Haven colony. In that "biblical commonwealth" it is, of course, not surprising that the influence of Judaism should be strongly felt. By the "capital laws" adultery is punished with death; so, before 1648, it is ordered that if "any marryed person proved an Adulterer, or an Adulteresse, shall by flight, or otherwise, so withdraw or keep out of the Jurisdiction, that the course of Justice (according to the mind and Law of God here established) cannot proceed to due execution, upon the complaint, proof, and prosecution, made by the party concerned, and interessed, a separation or Divorce, shall by sentence of the Court of Magistrates be granted," and the innocent party "have liberty to marry again." For physical incompetency marriage may be "declared void and a nullity;" and here we get a glimpse of the carnal motives for wedlock handed down from the Mosaic code and tenaciously surviving in all modern systems of law. Avoidance of marital "duty" is the real ground of action. Therefore should the man deceive the wife as to the fact, then such "satisfaction shall be made to the injured woman, out of the estate of the offender, and such fine paid to the Jurisdiction, as the Court of Magistrates shall judge meet."[1012] In like spirit an unusually stringent rule as to desertion is laid down. If either party shall wilfully abandon the other, "peremptorily refusing all Matrimoniall society, and shall obstinately persist therein, after due means have been used to convince and reclaim, the husband or wife so deserted, may justly seek and expect relief, according to 1 Cor. 7:15."[1013] Here no definite term of wilful desertion is fixed. But in 1663 divorce with remarriage is permitted in case of seven years' absence, when the deserted consort has "noe certaine intelligence" of the other's being alive or purposing to return.[1014] Whether this comprehends the case of wilful desertion we are not told.
c) Connecticut.—The laws of Connecticut relating to divorce gained a surprisingly early maturity. Perhaps in none of the other colonies was so liberal, and on the whole so wisely conservative, a policy adopted. That plantation almost deserves the patriotic eulogy bestowed upon it by Swift, who declares in 1795 that the "institution of a court for the decision of such controversies, and the limitation of their power to such cases as the public good requires to be remedied, gives the practice adopted by" the Connecticut "laws, a decided preference to the practice of all other nations, and renders our mode of granting divorces, as favourable as the other modes have been unfavourable, to the virtue and happiness of mankind."[1015] Certainly in the middle of the seventeenth century no state, with the possible exception of Holland, possessed a system so modern in its character. Separation from bed and board was rejected. Only in one instance, it is said, and that by the assembly, was such a decree ever granted.[1016] Reasonable and fairly liberal causes of divorce a vinculo were clearly specified; husband and wife were treated with even justice; and, although legislative divorce, always liable to abuse, was permitted, the greater part of litigation seems always to have been intrusted to the regular courts. In short, Connecticut, in all the more essential respects, anticipated the present policy of civilized nations by nearly two hundred years.
By the act of 1667 the court of assistants is empowered to grant 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]
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 yt 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 ye 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 "ye said estate" are prohibited from "seizing extending or any way troubleing ye remainder, vntil ye Court see cause to ye 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]
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]
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 Genll 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]
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]
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 ye partie offendinge uppon ye demand of ye 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 ye 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]
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]
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]
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 ye widow Williams to marry her, by theire own confessions."[1055]
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]
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]
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]
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.
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]
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]
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]
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.
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]
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]
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]
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]
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.
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]
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 ye which ye 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 ye which each partye is to res[t] satisfyed without giving any further trouble upon this occasion."[1094]
"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]
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]
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]
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]
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]
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.
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]