Chapter XV: Divorce in the American Colonies (2)

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]

[Footnote 990: However, in Nos. 34 (1773) and 36 (1774), Table
III, adultery of the husband is the only reason for the divorce
mentioned in the decree, but other grounds are specified in the
petition. Perhaps these may be regarded as the earliest cases of
divorce for "male adultery" during the eighteenth century.]

[Footnote 991: See Table III, Nos. 18, 32, 33, 36, 58.]

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]

[Footnote 992: Table III, No. 21. This is the only case where
custody of a child is asked for. In all other cases where
children are mentioned they are already in the hands of the
plaintiff; and in no instance are children referred to in the
decree. Separation from bed and board is usually granted for
cruelty (see Table III, Nos. 5_a_, 24, 18, 55, 65, 83_a_, 84);
but a full divorce is never granted for this cause alone.]

[Footnote 993: Table III, Nos. 83, 83_a_. With this case may
be compared that of Sarah _v._ William Vernon (Nos. 87, 87_a_,
87_b_). On October 16, 1784, the wife asked for such relief
as the "laws of the land" provide, charging her husband with
adultery and cruelty. The court found the evidence insufficient
for either kind of divorce; but on July 21, 1785, the marriage
was dissolved on the ground of adultery alone. Singularly enough,
her petition for alimony six days later was denied.]

[Footnote 994: Table III, No. 29. _Cf._ Nos. 32 and 50, where
marriage is dissolved for desertion accompanied by adultery (or
remarriage).]

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]

[Footnote 995: On April 22, 1760, for this offense "William
Arbuthnot, Esq.," secured a divorce from his wife. In his
petition he explains "that the reason of his application to this
Court, before ... Eleanor hath been legally convicted of adultery
by the course of Common Law, is, because the said Eleanor before
she could be prosecuted" absconded ... and still continues out
of the jurisdiction of the Common Law Courts of this Province":
see Table III, No. 1. In Nos. 17, 20, 41, 56, and 57 the decree
is based in part on proceedings in other courts; while in Nos. 78
and 80 such proceedings are pleaded.]

[Footnote 996: See Table III, Nos. 2, 8, 15, 24, 25, 26, 74, 85.]

[Footnote 997: _MSS. Early Court Files of Suffolk_, DCCXCIII, No.
.29730: see Table II, Nos. 5 and 6.]

[Footnote 998: In Table III, Nos. 11 and 19, after previous
written agreement, separation from bed and board with alimony
is allowed. The same is true of No. 65, except that the wife
retained her right of dower. Nos. 55, 56, and 57 are cases of
verbal agreement; but this does not constitute the sole reason
for the decree.]

[Footnote 999: Table III, No. 4; _cf._ Table III, No. 7, and
Table II, No. 8.]

[Footnote 1000: In 1745 a slave was allowed a divorce for his
wife's adultery with a white man: see Gray's note to Oliver _v._
Sale in QUINCY, _Reports_, 29; and BISHOP, _Mar., Div., and
Sep._, I, 282.]

_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]

[Footnote 1001: _Acts and Laws of ... New Hamp._, 1696-1726
(Boston, 1726), 10; _ibid._ (Portsmouth, 1761), 54; _ibid._
(Portsmouth, 1771), 11.]

[Footnote 1002: The petition is in the "Province Records and
Court Papers": _Coll. New Hamp. Hist. Soc._, VIII, 68.]

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]

[Footnote 1003: WOOLSEY, _Divorce_, 196, says, "At first,
divorces were mainly, if not quite exclusively, granted by an
act of a colonial legislature, in accordance, perhaps, with the
practice then, and until recently, existing in England, for the
House of Peers to take cases of dissolution of marriage into
their own hands." This statement is of course too broad; but
COWLEY is decidedly in error when he declares that the "remark
of President Woolsey requires modification with respect to Rhode
Island, and still more with respect to Connecticut. Neither
Massachusetts nor New York nor any other Colony or State knew
anything of legislative divorce until a much later day."--_Our
Divorce Courts_, 22.]

[Footnote 1004: So stated by GOODWIN, _Pilgrim Republic_, 596,
597, who gives a list of the cases, to which, after independent
examination of the _Plymouth Records_, I am unable to add any new
examples.]

[Footnote 1005: _Ply. Col. Rec._, IV, 66 (1664), 187, 192 (1668),
42, 46, 47 (earlier notices). _Cf._ GOODWIN, _op. cit._, 596.]

[Footnote 1006: _Ply. Col. Rec._, V, 127.]

[Footnote 1007: GOODWIN, _op. cit._, 597. The case is in _Ply.
Col. Rec._, V, 159.]

[Footnote 1008: On the Connecticut law as to seven years'
absence, SWIFT, _Digest of the Laws of the State of Conn._, I,
21, says: "By common law, that period of absence unheard of, is
presumptive evidence of the death of the person; yet in such
cases it would be proper that there should be a divorce before
a marriage is had, for if the party should return, the first
marriage would undoubtedly be valid, though by the [Connecticut]
statute a prosecution for the crime of bigamy could not be
sustained."]

[Footnote 1009: _Ply. Col. Rec._, VI, 44, 45.]

[Footnote 1010: _Ibid._, 190.]

[Footnote 1011: There are two other references to divorce matters
in the _Records_. In 1670, on his wife's confession of legal
cause, Samuel Hallowey petitioned for a divorce; but the court,
"being not very clear," postponed the case three months to see
if the wife would persist in her confession or the parties
become reconciled. In June the case was referred to two men for
examination; but it is not again mentioned: _ibid._, V, 32, 41,
42. _Cf._ GOODWIN, _op. cit._, 597. Again, curiously enough, we
find here the certified copy of a decree of divorce granted in
the Massachusetts jurisdiction to James Skiffe, "late inhabitant
of Sandwich, but now att the Viniyard," by a "Generall Court"
held on that island. Skiffe's wife had run away to Roanoke with
another man: _Ply. Col. Rec._, V, 33.]

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.

[Footnote 1012: This, of course, is practically equivalent
to "fraudulent contract" as usually permitted in the modern
statutes.]

[Footnote 1013: For the foregoing orders see _New Haven's
Settling in New England. And some Lawes for Government published
for the Use of that Colony_ (London, 1656): in _New Haven Col.
Rec._, II, 586. They are also embodied in the code of 1655:
TRUMBULL, _Blue Laws_, 241, 242. Their date is not given, but it
is probably previous to 1648 or 1649: _New Haven Col. Rec._, II,
preface, iv; TRUMBULL, _op. cit._, 40.]

[Footnote 1014: _New Haven Col. Rec._, II, 479, citing also "1
Cor., 7:15," as in the order before cited.]

_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.

[Footnote 1015: SWIFT, _System of the Laws of the State of Conn._
(Windham, 1795), I, 192; _cf. idem_, _Digest_ (New Haven, 1823),
I, 24, 25.]

[Footnote 1016: SWIFT, _System of the Laws_, I, 193.]

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]

[Footnote 1017: See _Public Statute Laws of the State of Conn._
(Hartford, 1808), I, 236, editorial note 1; also SWIFT, _Digest_,
I, 24, 25.]

[Footnote 1018: _Conn. Col. Rec._ (Oct. 18, 1677), II, 328:
"It is ordered, by this court that noe bill of divorce shall
be granted to any man or woman lawfully married but in case of
adultery, fradulent contract, or willful desertion for three
years with totall neglect of duty, or seven years' providentiall
absence being not heard of after due enquiry made and certifyed,
such party shall be counted as legally dead to the other party;
in all which cases a bill of divorce may be granted by the Court
of Assistants to the aggrieved party who may then lawfully marry
or be marryed to any other."]

[Footnote 1019: _Acts and Laws_ (New London, 1715), 28; _ibid._
(New London, 1750), 43; _ibid._ (New Haven, 1769), 43. Almost
the only change during the period mentioned in the text is the
substitution of "superior court" for "court of assistants."
_Cf._ _Pub. Stat. Laws_ (1808), 236 n. 1. As in Massachusetts,
the divorced wife is to have a part of the husband's estate, not
exceeding one-third thereof: _Acts and Laws_ (1769), 146.]

[Footnote 1020: Act of June 6, 1843: _Public Acts_ (1843), 20;
_Revision of the Stat. of the State of Conn._ (Hartford, 1849),
274.]

[Footnote 1021: SWIFT, _Digest_, I, 21.]

[Footnote 1022: This is the view of SWIFT, _Digest_, I, 21,
22, referring to BLACKSTONE, _Commentaries_, III, 94. Thus a
decision of the Connecticut superior court of errors seems to
limit "fraud" as a cause of divorce to "corporal imbecility":
1 DAY, _Reports_, 111. But in 1848, at the August term of the
superior court for Litchfield county, "it was held ... upon a
consultation with judges of the Supreme Court, that where a woman
at the time of her marriage was pregnant with a bastard child,
and fraudulently concealed the fact from her husband, this was a
sufficient cause for a divorce."--DUTTON AND COWDREY'S _Revision
of Swift's Digest_ (New Haven, 1851), I, 22; citing 9 _Conn.
Rep._, 321; and for New York, where a similar practice prevailed,
4 JOHNSON, _Chancery Rep._, 343. In the earlier period doubtless
a still broader meaning was given to the term "fradulent
contract": see the examples for illustration in SWIFT, _Digest_,
I, 22.]

Long before the act of 1667, and for one hundred and eighty-three years thereafter, the legislative assembly of Connecticut, side by side with the court of assistants or its successors, reserved to itself the right of granting bills of divorce. This power seems in the main to have been exercised with caution, though there are not lacking signs that it was sometimes abused. The general policy, according to Swift, was only to grant relief in this way in "cases of intolerable cruelty, and inveterate hatred, and such gross misbehaviour and wickedness as defeat the design of marriage, and presumptive proof of a criminal connection ... , where the positive proof required by law cannot be had."[1023] Yet this wise rule, if legislative divorce is to be allowed at all, does not in all cases seem to have been rigidly followed. The first instance of action by the general court in such questions found in the records occurs in 1655. "Considering the sad complaint of Goody Beckwith of Fairfield, in reference to her husband," and weighing the evidence presented "of ye manner" of his "departure and discontinuance," the assembly declares that if the "said Goody Beckwith, wife of Thomas, shall uppon her oath testifie to the Magistrates that are shortly to keepe Courte at Strattford, that her husband's departure was as others have testified it to bee; and y^t shee hath not heard from him nor of him any wayes since hee deserted her, the said Magistrates may give her a bill of Divorce."[1024] This is, of course, an example of granting the court jurisdiction in a particular case where perhaps the evidence was otherwise insufficient to warrant a decree. Two years later the general court frees Robert Wade of Seabrook from his "Couenant of marriage" with Joane his "late wife," because of the evidence presented to them of her "unworthy, sinfull, yea, unnaturall cariage" in staying in England and "disowning fellowship" with him for "neare fifteene yeares."[1025] Again in 1660, taking time by the forelock in the behalf of Sarah North, the same body orders that if she "hear not of her husband by that y^e seauenth year be expired, (he haueing bene absent six already) ... then, she shalbe free from her coniugal bonds."[1026] So also two years later, "vpon good consideration and solid reasons"--of what nature the record saith not--Bridget Baxter is likewise released; and because the estate which her late husband left with her "is sold to pay debts, all excepting a bed and her wearing aparell," the creditors of "y^e said estate" are prohibited from "seizing extending or any way troubleing y^e remainder, vntil y^e Court see cause to y^e contrary."[1027] In 1670 Hanna Huitt "is at liberty to marry if shee see cause," for the absence of Thomas during "eight years and better."[1028]

[Footnote 1023: SWIFT, _System of the Laws_, I, 193.]

[Footnote 1024: _Conn. Col. Rec._, I, 275 (May 17, 1655).]

[Footnote 1025: _Ibid._, 301 (Aug. 12, 1657).]

[Footnote 1026: _Ibid._, 362 (Mch. 14, 1660).]

[Footnote 1027: _Ibid._, 379 (May 15, 1662).]

[Footnote 1028: _Ibid._, II, 129 (May 12, 1670).]

The case of Elizabeth Rogers is of special interest; for it is much to be feared that the worthy deputies and magistrates regarded "free thinking" as a sufficient cause for dissolution of wedlock. In 1675 she laid her petition before the court of assistants, which found "some difficulties as to a present issue finally." Yet the case being one which called "for compassion to the woman under so great distress and hazard," it was referred for settlement to the general court, Mrs. Rogers having liberty meanwhile to dwell with her father.[1029] Accordingly, at its next session the assembly, accepting the "allegations and proofes presented to clear the righteousness of her desires," released Elizabeth from her "conjugall bond."[1030] A year later provision is made for alimony with custody of the children; and now at last the reason for Goodwife Rogers's "great distress and hazard," thus far carefully omitted from the record, is clearly divulged. "Her husband," runs the order, "being so hettridox in his opinion and practice," and having even "in open Court declared that he did vtterly renounce all the vissible worship of New England, and professedly declare against the Christian Sabboth as a mere invention," the court grants the mother and her father, Mathew Griswold, the care and custody of the children "to be brought up and nurtured by them (in the admonition and fear of the Lord)," also ordering John Rogers to pay "towards the mayntenance of his children, the sume of twenty pownds" in four equal annual instalments. In case "he fayle of payment, the reversion of the land by sayd John Rogers made ouer to Elizabeth his late wife, at Mamacock" is to be held as security.[1031]

[Footnote 1029: _Ibid._, 292, note.]

[Footnote 1030: _Ibid._, 292 (Oct. 21, 1676).]

[Footnote 1031: _Ibid._, 293 (Oct. 18, 1677). For two cases of
divorce, each for six years' desertion, see _ibid._, 293 (Oct.
12, 1676), 322 (Oct. 11, 1677); one for five years' desertion,
_ibid._, 327 (Oct. 18, 1677); and another for three years'
"wilful" desertion, _ibid._, III, 23 (1678).]

Another case, that of Richard Edwards, deserves notice, for as late as 1690 it affords us an example of the reference of public questions to the elders. In October of that year Edwards presented a petition for divorce from his wife Elizabeth. The general court "declare they doe not find reason to grant" it.[1032] But Richard is bound to have "releife therein if the law of God or man will affoarde it him." So he comes before the court again "desireing that a councill of able diuines upon his charge might be called to consider his case and giue their resolves upon the same to the court." The latter, though not "fully sattisfyed to alter their apprehensions from what they were formerly, yet considering the deplorable state of the petitioner, and the many intolerable temptations he lyes open too, are willing to doe what they can for his releife, and to recomend it to the Gen^{ll} Court October next to consider the case, and doe desire that the Reuerend Mr. Hooker" and five other ministers give their attendance upon the court "to hear the case and grant what light they can come at" to guide the issue.[1033] No definite ground for the petition, it will be observed, is assigned; but one may safely hazard a guess that "hettridox" opinions were again involved. At any rate, Richard's plan was successful. The next October he was released "from his conjugall tye," the court first "haueing considered the case with seriousnesse and taken the best advice they could com at by the word of God and learned and worthy diuines."[1034]

[Footnote 1032: _Conn. Col. Rec._, IV, 37 (Oct. 9, 1690).]

[Footnote 1033: _Ibid._, 52, 53 (May, 1691).]

[Footnote 1034: _Ibid._, 59 (Oct. 8, 1691).]

As time went on, the cases of legislative divorce became few and far between. The courts were felt to be the proper place for such business.[1035] In 1753 Mary Larkum was freed from her husband Job on account of his "barbarous and inhuman carriage toward her."[1036] In 1761 the assembly set aside a divorce granted two years before by the superior court for alleged wilful desertion;[1037] and at rare intervals that body was appealed to during the next seventy-five years.[1038] There was a sudden increase of business in 1837.[1039] From that date until 1850 the annual crop of legislative divorces is surprisingly large.[1040] Sometimes the "resolve" granting the petition is curt and informal; while often it is entirely silent as to the exact cause of complaint.[1041] It would seem that the practice of intrusting proper judicial business to popular political bodies was yielding the usual evil fruit; for at last, in 1849, a statute provides that the "Superior Court shall have sole and exclusive jurisdiction of all petitions for divorce."[1042]

[Footnote 1035: In a pamphlet entitled _Appeal to the Public_
(New Haven, 1788), full of errors, TRUMBULL attacks the divorce
laws of his state. According to him (48), there is no example
of divorce in New York from the settlement to 1787; and with
equal inaccuracy he declares (46) that "in the Massachusetts and
Connecticut codes printed at Cambridge 1672, there is no law
respecting divorce. The law of Connecticut relating to it was
made five years after, Oct. 11, 1677." For Connecticut he makes
the further extraordinary statement (46) that "more than forty
years from the settlement" elapsed "before any such law was in
existence. No divorce was given by virtue of the law, till the
year 1692. After this divorces were, for many years, sparingly
given. But as they became customary, as there were no punishments
for delinquents, and as the shame decreased with the growth of
the practice, they have, within this few years, had a rapid
increase. In less than a century [1692-1788], four hundred and
thirty-nine (439) pair ... have been separated by divorce. This
whole number, forty-eight couple excepted, have been divorced
in the short term of fifty-two years. Between twenty and thirty
pair ... are now annually "thus separated" in the Superior Court,
besides those put asunder by the General Assembly. About twenty
times as many are now divorced annually, as were in almost sixty
years after the first settlement of the State; and about half as
many as were divorced through the whole first century. Seventeen
pair have been divorced last circuit." It is to be hoped that the
statistics are more trustworthy than the history.]

[Footnote 1036: _Conn. Col. Rec._, X, 168 (May, 1753).]

[Footnote 1037: _Ibid._, XI, 544, 545 (May, 1761).]

[Footnote 1038: Thus a divorce was granted in 1774: _ibid._, XIV,
223, 387, 388; and two instances occurred in May, 1821: SWIFT,
_Digest_, I, 23.]

[Footnote 1039: An act of 1837 refers incidentally to divorces
which have been or shall be "granted, either by the general
assembly or by the superior court, on the application of a
married woman."--_Pub. Stat. Laws_ (1837), 33; also in _Pub.
Stat. Laws_ (general revision, 1838), 187. Query: Did this act
invite and authorize appeal to the assembly in such matters?]

[Footnote 1040: For the annual lists of divorces granted by the
assembly see _Resolves and Private Acts of the State of Conn._
(1837), 3 ff.; _ibid._ (1838), 13-16; _ibid._ (1839), 28-42;
_ibid._ (1840),9-14; _ibid._ (1841), 23-28; _ibid._ (1842), 4-16;
_ibid._ (1843), 10-20; _ibid._ (1844), 8; _ibid._ (1845), 15, 16;
_ibid._ (1846), 15-19; _ibid._ (1847), 31-34; _ibid._ (1848),
61-69; _ibid._ (1849), 46-56. The last of these divorces is that
of Candace Williams, of New Haven, from F. Walter Williams, May,
1850; _ibid._ (1850), 21.]

[Footnote 1041: Here is a typical case, though often the resolve
is much briefer:

"Upon the petition of Polly M. Mead of Danbury, Fairfield County,
and State of Connecticut, praying a bill of divorce from her
husband, Martin Mead of said Danbury, which petition was duly
served and returned:

"_Resolved by the Assembly_, that the said Polly M. Mead be, and
she is hereby divorced from the said Martin Mead, and is and
forever hereafter shall be absolved from all obligations to the
said Martin Mead by virtue of the said marriage contract, and is
hereby declared to all intents and purposes, sole, single and
unmarried.

"Resolved that the said Polly ... have the sole charge, care
and custody of her only child, and that the said Martin ...
shall have no power or authority over him, in any way or manner
whatsoever."--_Resolves and Private Acts_ (1837), 3.]

[Footnote 1042: Act of June 19, 1849: _Pub. Acts of the State of
Conn._ (Hartford, 1849), 17.]

_d_) _Rhode Island._--It is, however, in the judicial history of Rhode Island that legislative divorce has left its deepest mark and had its worst consequences. In the American colonies and states this practice has perhaps never caused the same hardships or flagrant injustice as it did in England previous to the act of 1857. Ordinarily, as in that country, relief has not in effect and of necessity, owing to the cost of the proceedings, been entirely denied to anyone because he was poor. On the other hand, popular political assemblies, such as American state legislatures, are on other grounds ill fitted for judicial functions. Their ignorance or carelessness may produce results bad for society. For they possess nothing like the legal knowledge and experience of the House of Lords, in which petitions for divorce were first considered. Before the legislative trial, as in England, the facts have not already been fairly well ascertained in the law and spiritual actions; and if the same harsh discrimination between rich and poor does not appear, there is at least equal opportunity for jobbery and favoritism. It is well that the custom practically has long ceased to exist in the United States.

The legislation of Rhode Island begins with a conservative measure in 1650. It is "ordered, that no bill of divorce shall stand legall ... butt that which is sued for, by the partie grieved" and not "for any other case but that of Adulterie." This cause may be proved by the injured person, "eyther by the man against the woman, or by the woman against the man, before the Generall Assemblie" which by the act is given exclusive jurisdiction in such questions. After separation "each partie shall be as free from" the other as "before they came together."[1043] But in 1655 a change is made in jurisdiction, as also by implication, in the legal grounds of divorce. First we have a striking example of the tendency of Rhode Island to vest important functions in the officers of the local community. "It is ordered, that in case of adulterie, a generall or towne magistrate may grant a bill of divorce against y^e partie offendinge uppon y^e demand of y^e partie offended." Furthermore, other grounds of complaint are contemplated, though they are not clearly expressed; for it is declared that "in all other cases of separation or divorce between man and wife, all persons shall addresse themselves for release to y^e Generall Court of Commissioners"--the name which the assembly bore during the parliamentary charter. Here we have the usual reservation of special cases to the legislature, among which, it seems clear, separation from bed and board is had in view.[1044]

[Footnote 1043: _Rhode Island Col. Rec._, I, 231 (Oct. 26, 1650);
_cf._ ARNOLD, _Hist. of R. I._, I, 322.]

[Footnote 1044: _R. I. Col. Rec._, I, 312 (1655). "And if any
persons in this Colonie," continues the order, "shall part
themselves and marrie again without y^e authoritie of y^e
Court of Commissioners, or be convicted of carnal copulation
with any other [bigamy], they shall be punished as in case of
adulterie."--_Ibid._, 312.]

In the early days the assembly did not lack business. At the June session, 1655, John and Elizabeth Coggeshall, who had separated "by mutuall and voluntarie consent," were each allowed on separate petition to contract further marriage.[1045] Two other cases occurred the same year;[1046] and later examples have been collected. In 1665 the assembly "granted a divorce for the adultery of the wife on her own confession, and at the same time sentenced her to pay a fine and be whipped."[1047] At this time is also recorded the pathetic story of Horod Long. In her petition addressed to the royal commissioners,[1048] then in the colony, she says: "I was upon the death of my father sent to London by my mother in much sorrow and griefe of spiritt, and then taken by one John Hickes vnknown to any of my friends, and by the said Hickes privately married in the vnder Church of Paules, called Saint Faith's Church, and in a little while after, to my great griefe, brought to New England, when I was betweene thirteene and fourteene years of age." After living two years and a half at Weymouth the pair came to Rhode Island in 1640. "Not long after," Horod continues, "there happened a difference betweene the said John Hickes and myselfe, soe that the authority that then was vnder grace, saw cause to part vs, and ordered I should have the estate sent me by my mother." Evidently she was allowed to resume her maiden name. Here we catch a glimpse of the earliest known divorce in Rhode Island. After the separation Hickes fled to the Dutch,[1049] taking with him, in defiance of the court's order, most of the wife's property. Thus she was "put to great hardshipe and straight;" for she was friendless and "not brought up to labour." To gain a maintenance, therefore, without any formal celebration or other proceedings, she allowed herself to be "drawne by George Gardener," and lived with him as his wife, being so reputed by the neighbors, for near twenty years, bearing him "many children." Clearly, as further shown by the testimony, we have here a case of "common-law" marriage. Yet during this time Horod alleges she had "much oppression of spiritt" regarding her questionable condition; but Gardener, who had enjoyed the remnant of her estate and all her labor, refused either to allow her a separate support or to cease to trouble her. So in her distress of mind she appealed to the commissioners for relief, asking separate maintenance for herself and child, and that "hee may bee restrained from ever meddling with" her. The commissioners referred the matter to the governor, requesting him to "doe justice to the poore petitioner;" and the governor placed it in the hands of the assembly. That body was without compassion; for the woman had "impudently" discovered "her owne nakedness." She and her partner were treated as ordinary offenders, being each fined twenty pounds, and warned henceforth not "to lead soe scandalous a life, lest they feel the extreamest penalty that either is or shall be provided in such cases."[1050]

[Footnote 1045: _Ibid._, 319.]

[Footnote 1046: Peter Talman got a divorce on his wife's
confession of adultery: ARNOLD, _Hist. of R. I._, I, 320; and
it "was ordered that Thomas Genings shall goe and demand his
wife to live with him, but in case she refuse, he shall make his
addresses to the General Court of Commissioners."--_R. I. Col.
Rec._, I, 312. Ann Talman, the divorced wife of Peter, referred
to, was later more than once whipped for her misconduct: _ibid._,
II, 187,188.]

[Footnote 1047: DURFEE, _Gleanings from the Judicial Hist. of R.
I._, 35.]

[Footnote 1048: Carr, Cartwright, and Maverick.]

[Footnote 1049: Is this the same "John Hicks" who in New
Netherland obtained a divorce in 1655? See sec. iii, below.]

[Footnote 1050: _R. I. Col. Rec._, II, 99 ff. At the same time,
with astonishing inconsistency, it was enacted that similar
offenders shall be amenable to the laws punishing fornication,
which are made more stringent; but all present reputed marriages
are declared valid and the children legitimate (104, 105). By
this rule Horod and George should either have been regularly
divorced or ordered to cohabit as husband and wife. In any event
their punishment was unjust.]

To this same eventful year, 1667, belongs the only case of partial divorce yet discovered. Richard and Mary Pray joined in a petition asking a complete dissolution of their nuptial bond. The assembly denied their prayer, but allowed them to live apart without the right of remarriage.[1051] On the powers of the general court at this time Arnold makes the following comment: "Not only were divorces granted and a separate maintenance awarded to the wife, but the whole property of the husband was attached and held by the Assembly, until the provisions of the decree had been satisfied. In the case of John Porter ... they went even further, and annulled all transfers of property ... made by him since the separation from his wife, which had not already been recorded. Upon his settling a satisfactory estate upon his wife these disabilities were removed."[1052]

[Footnote 1051: _Ibid._, 188, 189. In the same year Robert
Colwell got a divorce from his wife Mary: _ibid._, 204.]

[Footnote 1052: ARNOLD, _Hist. of R. I._, I, 320. This case came
before the assembly in 1665: _R. I. Col. Rec._, II, 119-21; _cf._
DURFEE, _Gleanings from the Judicial Hist. of R. I._, 35.]

After the establishment of the royal charter the ordinary jurisdiction in divorce matters was vested in the court of trials, composed of the governor and assistants who formed a part of the assembly; but the latter body continued to act when it saw fit. But "it would seem," says Arnold, "that the separate powers of the magistrates were not distinctly defined or well understood, for a censure was passed upon John Green, Assistant of Warwick, for having granted, by his own authority, a bill of divorce. This proceeding was sharply reproved by the Assembly, as being a usurpation of judicial power in superseding the action of the Court of Trials. The town of Warwick declared the divorce to be legal, and protested against this censure upon their leader."[1053] In this case it may perhaps be right to infer that a reminiscence existed of the order of 1655, already cited, vesting jurisdiction in the principal cases of divorce in a single "town" or "general" magistrate, the latter term applying to an "assistant" under the royal charter. The assembly in 1676 released John Belou "from all matrimonial engagements" to his wife Hannah.[1054] An entry in the records of Muddy River, Mass., for July 30 of the same year, informs us that John "Lewis came from Road Island where his wife gave him a paper of dismission from her in Novr. last & libertie to marrie another woman & he is now engaged to y^e widow Williams to marry her, by theire own confessions."[1055]

[Footnote 1053: ARNOLD, _Hist. of R. I._, I, 365 (Nov., 1672).
This bill was granted to Richard and Mary Pray, whom the assembly
had permitted to live apart in 1667: _R. I. Col. Rec._, II, 479.]

[Footnote 1054: _Ibid._ (1664-77), 543.]

[Footnote 1055: The entry is marked "returned to county court":
_Early Records of Muddy River_, 69.]

In 1683 we have an interesting example of the summary punishment of a divorced man by the legislature, doubtless for the misconduct which led to the decree. "The power of the Assembly to expel its members was rarely exercised, but at the adjourned session, a deputy from Warwick, against whom complaints were brought and a divorce granted on petition of his wife," at this time, "was deemed unfit to hold his seat, and was therefore expelled."[1056] Two years thereafter a law was passed making "five years neglect or absence of either party" a ground for divorce;[1057] but the period was extended to seven years in 1749.[1058]

[Footnote 1056: ARNOLD, _op. cit._, I, 470 (June, 1683).]

[Footnote 1057: _Ibid._, 483 (1685).]

[Footnote 1058: See _Acts and Laws_ (Newport, 1767), 74,
containing the changes made in 1749 and 1754. The superior
court is authorized in its discretion to grant alimony from the
husband's estate.]

According to Judge Durfee, after power to grant divorces came to the superior court in 1747[1059] the jurisdiction of the assembly "languished;" but "it continued, nevertheless, to be invoked in exceptional cases,[1060] which either were not provided for by the statute or were too flimsey or too whimsical for judicial treatment. There is an uncanny tradition, still vaguely surviving, that in such cases grave legislators were sometimes plied in the lobby with solicitations and arguments too peculiar for public discussion. After the constitution the more usual course for the assembly was, not to hear the petition, but to authorize the supreme court to hear it by special act, if without such act the court was incompetent. Divorces, however, were granted as late as 1850. In January, 1851, the assembly had several petitions pending before it and transferred them, together with all documents and depositions in support of them, to the supreme court, 'where,' the resolution of transfer tartly remarks, 'the said petitions should have been filed,' and at the same time authorized and required the court to try them."[1061]

[Footnote 1059: In that year the court of trials, composed of the
governor and assistants or councillors, which with no essential
change in composition and functions had existed from about 1644,
was superseded by a regular law tribunal, the superior court of
judicature: ARNOLD, _op. cit._, II, 157. But already in 1729 a
"Superior Court," composed of at least five members of the upper
branch of the legislature, and apparently lower than the court of
trials, was established: _ibid._, 90. In general on the various
stages in the history of the court of trials, see _ibid._, I, 210
(1647), 302 (1663-64), 460 (1680); II, 16 (1704).]

[Footnote 1060: In Oct., 1749, a divorce was granted by the
assembly; and this is the first Arnold had noticed, probably
meaning in that period: _op. cit._, II, 175.]

[Footnote 1061: DURFEE, _Gleanings from the Judicial Hist. of R.
I._, 35, 36. See _Laws of R. I._ (1851), 796, where petitions for
divorce on account of wilful desertion are transferred by the
assembly to the supreme court; and similar reference, _ibid._
(1846), 57, 85.]

II. ENGLISH DIVORCE LAWS IN ABEYANCE IN THE SOUTHERN COLONIES

It is an established principle of jurisprudence that colonists settling in an uninhabited land take with them all the laws of the mother-country which are suited to their new circumstances.[1062] This doctrine is sustained by the decisions of the Courts.[1063] It follows, according to the views strongly supported by Bishop, "that all such laws of England, relating to marriage and divorce, by whatsoever names there known, are, as they existed at the respective times of the settlements here, common law in our several states."[1064] The law of divorce which the American colonists brought with them in the seventeenth century allowed a separation from bed and board by decree of an ecclesiastical court, and for two causes only, adultery and cruelty. Absolute divorce was not recognized. But while the colonists carried with them the English law, they did not bring likewise the English courts. Therefore it "results that these laws can practically be administered with us only as far and as fast as tribunals are established on which, directly or by implication, is conferred the jurisdiction." The laws slumber, so to speak, until quickened through the creation of courts by the legislature. "Between the arrival in a colony of the law from the mother-country, and the organization of courts for its enforcement, some space of time must intervene. And during such space the law must be practically in abeyance, or inoperative." Should a "tribunal be created with jurisdiction extending to a part only of the law, such part will become operative, but the rest will remain inert as before."[1065] Besides, for our present purpose it is highly important to note that the English courts "have specifically held, that the matrimonial law of the ecclesiastical tribunals is a branch of the law which colonists take with them."[1066]

[Footnote 1062: BISHOP, _Mar., Div., and Sep._, I, § 116. "If
an uninhabited country is discovered and planted by British
subjects, the English laws are said to be in force there, for the
law is the birthright of every subject."--STORY, _Commentaries_,
I, §§ 147 ff. _Cf._ KENT, _Commentaries_, I, 343, 473; and
BLACKSTONE, _Commentaries_, I, 107, who regards the colonies as a
conquered country.]

[Footnote 1063: BISHOP, _First Book_, §§ 51-59; _idem_, _Mar.,
Div., and Sep._, I, § 117.]

[Footnote 1064: The expression "all laws" is used advisedly.
Though "in some of the American cases the term 'common law' is
used, the broad meaning of the term, not its narrow and technical
one, is intended."--BISHOP, _Mar., Div., and Sep._, I, § 119;
citing C. _v._ Knowlton, 2 _Mass. Rep._, 530, 534: Sackett _v._
Sackett, 8 PICKERING, _Reports_, 309, 316. _Cf._ JEFFERSON,
_Works_, VI, 65; VIII, 374, 379; IX, 282.]

[Footnote 1065: BISHOP, _op. cit._, I, §§ 115-37, where the
authorities for each step in the argument are cited.]

[Footnote 1066: _Ibid._, §§ 119, 109. See Latour _v._ Teesdale, 8
TAUNT., _Eng. Com. Pleas Rep._, 830; Rex _v._ Brampton, 10 EAST,
_King's Bench Rep._, 282; Caterall _v._ Caterall, 1 ROB., _Ec._,
580, 581; and Lauderdale Peerage Case, 10 _Law Reports_, 744,
745.]