Chapter XV: Divorce in the American Colonies (3)

Since, therefore, the church courts were never established in any of our American provinces, it follows by the foregoing rule that there was no tribunal competent to decree a divorce or separation in such of them as had not assigned the jurisdiction in question to some other body. This was the case throughout the southern colonies. Their statute books are entirely silent on the subject of divorce jurisdiction. Judicial separations from bed and board did not exist; nor prior to the Revolution has there been discovered a single case of absolute divorce by legislative act--a practice so common in New England during the same period--although Parliament had set the example before the close of the seventeenth century. On the other hand, separations by mutual consent, or on account of bad conduct, or parol[1067] separations in some form, did occur, as they always do occur in any society; and it is from the meager records of judicial actions regarding separate maintenance in such cases that one learns something concerning the state of southern law and custom before the Revolution.

[Footnote 1067: On "parol separation" see BISHOP, _Mar., Div.,
and Sep._, I, §§ 1203-52.]

In Virginia we find the county court, which had gained a share of the equity jurisdiction,[1068] hearing and granting petitions for separate alimony. Thus in 1691 the prayer "of Ruth Fulcher for separate maintenance against her husband, John Fulcher," was referred by the governor and council, constituting the "general court,"[1069] to the justices of a county court, "who, after hearing the testimony, decided in favour of the plaintiff."[1070]

[Footnote 1068: HENING, _Stat._, I, 303; V, 491.]

[Footnote 1069: This court was so called since 1662: HENING,
_Stat._, II, 58; _cf._ HOWARD, _Local Const. Hist._, I, 390 ff.]

[Footnote 1070: June 16, 1691: PALMER, _Calendar of Va. State
Papers_, I, 29.]

Now, by the English law alimony could not be granted in an independent action, but only as incident to a divorce by decree of the ecclesiastical court. Moreover, in Virginia no colonial statute had ever conferred this portion of the ecclesiastical jurisdiction upon the local courts or upon any other tribunal. How, then, consistently with the principles just stated, could a petition for separate maintenance be entertained by the county magistrates as falling within their equity jurisdiction? From two decisions in the early part of the present century the dual innovation is represented as the result of justifiable self-help under the stress of circumstances; while, in the absence of a statute authorizing it, the assumption of the power of the ecclesiastical court by the equity tribunal is looked upon as a natural and logical course. In the first of these cases, arising in 1810, the superior court of chancery affirms its own jurisdiction in suits for alimony. The chancellor, after conceding that the authorities are in doubt and divided, holds "that in every well-regulated government there must somewhere exist a power of affording a remedy where the law affords none; and this peculiarly belongs to a court of equity; and as husband and wife are considered as one person in law, it is evident that in this case the law can afford no remedy; which is universally admitted to be a sufficient ground to give this court jurisdiction, and therefore it must entertain the bill."[1071]

[Footnote 1071: Case of Purcell _v._ Purcell (1810), 4 HEN. AND
MUNF., _Reports_, 506-19. "It is not commonly thus assumed that
a court of equity will take jurisdiction of a subject simply
because the common law tribunals do not."--BISHOP, _Mar., Div.,
and Sep._, I, § 1398, note 5; STORY, _Equity Jurisprudence_, §
62.]

Thirteen years later this "reasoning of the chancellor on the point of jurisdiction" is pronounced "sound," in a suit for separate maintenance which was carried from the chancery court of Fredericksburg to the Virginia court of appeals. In his opinion Judge Carr says: "I find no case with us, in which the subject has been before this court. Having no Ecclesiastical Tribunal, the powers of that court seem to have been considered as vesting originally in the old General Court. From thence, some of them have been distributed to other courts, as they were branched out.... I know of no law which has given to any court the trial of matrimonial causes, except so far as relates to incestuous marriages, as to which a power is given to the Court of Chancery to annul them." Judge Tucker, he continues, in his edition of Blackstone,[1072] "says with respect to suits for alimony after a divorce _a mensa et thoro_, as there is no court in Virginia which possesses jurisdiction in such cases, there can be no room for suits of this nature; unless, perhaps, the High Court of Chancery should sustain them as incidental to its equitable jurisdiction." "I believe," adds Judge Carr, "that in practice the County Courts, sitting as courts of equity, have assumed the power of giving separate maintenance in cases of separation; but by what rule they have been regulated, I know not."[1073]

[Footnote 1072: TUCKER, _Blackstone's Commentaries_ (1803), III,
94.]

[Footnote 1073: Case of Almond _v._ Almond (1823), 4 RAND.,
_Rep._, 662-68; also in 15 _Am. Decisions_, 781.]

But the colonial and state courts of equity, in "exercising the authority, not of granting divorces, but alimony, where the latter was the only relief prayed," seem to have acted contrary to the more approved legal rule; and Bishop suggests that their course may have been influenced by a misunderstanding of the policy of the commonwealth. In the time of Cromwell "the ecclesiastical courts were abolished; thereupon the equity judges were expressly authorized, it appears by a clause in their commissions,[1074] to decide causes of alimony, and after the Restoration their decrees were by statute confirmed. Misapprehensions of this matter have sometimes led to the inference that the equity courts took cognizance of the question simply as of their own appropriate jurisdiction, because of the extinguishment of ecclesiastical tribunals, or as succeeding to them. But this obviously was not so; since, had the jurisdiction been theirs, they would have exercised it as well when there were ecclesiastical courts as when there were none, for the latter never claimed it, their alimony being only an incident in the divorce suit; and since any jurisdiction which they might assume as successors of the defunct ecclesiastical courts could have been only to decide causes of divorce, with their incidental alimony, not to grant an alimony before unknown." The granting of separate alimony without a divorce is now common in the states;[1075] and, from whatever source the courts have derived their power, it is entirely justifiable as satisfying a social need. In the absence of statutory sanction justice may demand that some existing body shall promptly grant relief; though it is doubtless true that the authority to do so cannot be _logically_ assumed as the legitimate inheritance of equity tribunals from the ecclesiastical courts.

[Footnote 1074: BISHOP, _op. cit._, I, §§ 1394, 1395; following
FONBLANQUE, _Equity_, 97, note. In Helms _v._ Franciscus, 12
BLAND, 544 ff., it is taken for granted that the equity judges
of the commonwealth _assumed_ the jurisdiction in question as
naturally coming to them; nothing is said of a statute conferring
it.]

[Footnote 1075: The subject is worked out in detail by BISHOP,
_op. cit._, I, §§ 1383-1421.]

The colonial law of Maryland on the subject does not differ essentially from that of Virginia, although there are some divergences of interest. Judicial divorces were not granted. A number of early cases show that the high court of chancery took cognizance of suits for separate alimony as naturally belonging to its jurisdiction in the absence of ecclesiastical courts. Of these perhaps the most important for the facts presented, though the precise ground of the judgment is not clearly expressed, is the action of Galwith _v._ Galwith which in 1689 came before the provincial court on appeal from the court of Calvert county. The record of the lower tribunal states that at the June term, 1685, "the appellee, being the wife of the appellant," presented a petition "setting forth, that within a few years certain false, evil, and scandalous reports were raised and spread abroad against her by some malicious persons," causing "great dissention and difference between her husband and herself, insomuch that he refused to entertain her in his house, or allow her a competent maintenance elsewhere, by which she was reduced to great poverty and want." Whereupon, in June, 1684, she "applied to the county court for relief and redress therein, at which time the court hearing and considering the premises, granted an order that her husband should allow ... her 2000 wt. of tobacco for her maintenance the year next ensuing." Now the "year was completed and ended, and her said husband not being reconciled nor willing" to take back either herself or the child, "which she hitherto had maintained," she "would in a short time be brought to extreme poverty and necessity without further assistance from the court." Therefore she prayed that the court would give order that her husband might "take her home to dwell with him, which she was desirous to do, or else that he might be enjoined to allow her a competent maintenance for herself and child." Accordingly the "said John Galwith" was commanded to "take home his said wife Jane Galwith, to dwell with him as man and wife ought to do; otherwise to allow ... her 3000 wt. of tobacco a year, commencing from that day."

John then appealed to the higher tribunal, assigning for errors: (1) that the county court passed judgment against him upon reading the petition without calling him to answer, "so that he is condemned unheard contrary to the law, and against the statute of _Magna Charta_;" (2) that the county court had "no jurisdiction of the matter in difference ... , being touching Alimony, which is not recoverable there but in chancery, or the court of the ordinary;" (3) that the county court cannot take "cognizance of matters relating to causes of separation and divorce between man and wife, but such matters are only triable and examinable in the court of the ordinary."[1076] The judgment was reversed, but on what particular ground we are not told; so that from the apparent inconsistency of the last two specifications, one might be in doubt, were the fact not well established, whether the high court of chancery had jurisdiction; for surely alimony is strictly a matter "relating to causes of separation and divorce," cognizance of which is said in the report to belong in effect to the bishop of London as ordinary. One point, however, seems clear: the county court had no power in such causes; and that is what one would infer according to the doctrine of the Virginia judges before quoted; for, unlike the county courts of Virginia, those of Maryland had no equity jurisdiction.[1077]

[Footnote 1076: Case of Galwith _v._ Galwith, 4 HARRIS AND
MCHENRY, _Reports_, 477, 478.]

[Footnote 1077: The act of 1639, engrossed but not finally
approved, gave the so-called "county court" power in certain
matrimonial causes belonging properly to ecclesiastical courts:
but this tribunal was really the predecessor of the provincial
court: BOZMAN, _Hist. of Md._, 106, 128, 129, 131, 604.]

Some other decisions of a later date throw light on the colonial practice. In Macnamara's case, involving alimony, decided before the Revolution, "the defendant claimed an appeal to the Arches Court in England. His right thereto seems to have been acknowledged, it does not appear on what principle."[1078] Again, in 1828, it was declared in Farnshill _v._ Murray that "there never having been an ecclesiastical court, and no power to grant a divorce by annulling for any cause, a contract of marriage which was originally valid ever having been conferred upon any of the courts of justice, it follows that a divorce can only be granted by an act of the general assembly;" but in the provincial era alimony was customarily granted by the court of chancery.[1079] Similar evidence two years later is afforded by the opinion in Helms _v._ Franciscus, where the parties had a written agreement to live apart. In the absence of the ecclesiastical court it is affirmed, "the high court of chancery always had, even under the provincial government, entire jurisdiction of such claims for alimony, or for separate maintenance out of the husband's estate founded on his misconduct," but chancery may not meddle with causes of marriage and divorce. Moreover, it is laid down, apparently as the rule in the colonial as well as in the modern period, that separate maintenance may be assigned by the equity court only on the two grounds of misconduct admitted in the ecclesiastical tribunals as proper reasons for a divorce _a mensa et thoro_.[1080] It may also be noted that the jurisdiction in suits for alimony, assumed prior to the Revolution by the courts of equity, was later confirmed by statute. In 1777 it was enacted that the "chancellor shall and may hear and determine all causes for alimony, in as full and ample a manner as such causes could be heard and determined by the laws of England in the ecclesiastical courts there."[1081] Commenting on this act Bishop remarks that "as the ecclesiastical courts in England had no power over alimony except in connection with divorce, it would not have been an extravagant interpretation to derive from this statute authority to decree both divorce and alimony, to the extent exercised in those courts. But it was held, instead, that the wife could have under it the sort of alimony we are considering, for any cause authorizing in England a divorce from bed and board, and even sometimes for other causes;[1082] yet not the divorce."[1083]

[Footnote 1078: Macnamara's case, 2 BLAND, 566, note: BISHOP,
_op. cit._, I, § 1396 n. 3.]

[Footnote 1079: Case of Farnshill _v._ Murray, 1 BLAND, 479 ff.;
18 _Am. Decisions_, 344-50. _Cf._ the case of Utterton _v._
Tewsh, FERGUSON'S _Reports of Consist. Court of Sc._ (1811), 23.]

[Footnote 1080: That is, for cruelty and adultery: case of Helms
_v._ Franciscus (1830), 2 BLAND, 544 ff.; 20 _Am. Decisions_, 402
ff. _Cf._ the case of Wallingsford _v._ Wallingsford, 6 HAR. AND
J., 485.]

[Footnote 1081: By the same act it is provided that "the general
court may inquire into, hear and determine, either on indictment
or petition of either of the parties, the validity of any
marriage, and may declare any marriage, contrary to the table
in this act [table of forbidden degrees] or any second marriage,
the first subsisting, null and void," with appeal to the "court of
appeals."--_Laws of Md._ (Annapolis, 1799), I, Feb., 1777, c. xii,
par. xiv, xv.]

[Footnote 1082: Jamison _v._ Jamison, 4 _Md. Ch._, 289, 295. This
case is thus more liberal than Helms _v._ Franciscus just cited.]

[Footnote 1083: BISHOP, _op. cit._, I, § 1396. _Cf._ Hewitt _v._
Hewitt, 1 BLAND, 101: Crane _v._ Meginnis, 1 GILL AND J., 463, or
19 _Am. Decisions_, 237; Wright _v._ Wright's Lessee, 2 _Md._,
429, or 56 _Am. Decisions_, 723.]

It is just possible, finally, that absolute divorces were granted in Maryland by the colonial assembly--a common practice after the Revolution. "In this state," it was held in 1829, "the act of divorcing man and wife has been performed by the legislature, for the want, perhaps, of ecclesiastical authority to effect it, or borrowing, perchance, the power from the parliament of Great Britain.... However this may be, divorces in this state, from the earliest times have emanated from the general assembly, and can now be viewed in no other light than as regular exertions of legislative power." But no evidence is forthcoming for the "earliest times."[1084]

[Footnote 1084: Case of Crane _v._ Meginnis, 1 GILL AND J., 468;
19 _Am. Decisions_, 237-42. _Cf._ also Wright _v._ Wright's
Lessee, 2 _Md._, 429, or 56 _Am. Decisions_, 723-33.]

The law and custom prevailing in the Carolinas are in harmony with those of Virginia and Maryland, and need not here be considered. The same is probably true of Georgia, as appears from the case of Head _v._ Head, which will receive some notice in another connection.[1085] From the opinion in this suit we infer that in the colonial period the English common law, including the law administered by the ecclesiastical courts, governed the subject of divorce. By an act of February 25, 1784, the common law and such statutes as were in force "in the Province of Georgia in 1776, so far as they were not contrary to the constitution, laws, and form of government of the state," were adopted. Accordingly, up to 1784 an absolute divorce could not be given, and the only causes recognized for a partial divorce were those of the common law. But even such limited divorces were not granted; for there had been no legislation on the subject, and therefore no courts existed in the colony competent to act. Through exercise of its sovereign power the legislature might, indeed, have granted divorces, partial or complete, after the British model; and according to the opinion in this case the legislature had exercised this function for some time prior to 1798, when the constitution transferred the primary jurisdiction in all cases from the legislative body to the courts. "We have searched in vain," says Justice Nisbet, "for any legislation upon the law of divorce before 1798. If the legislature had passed laws declaring what would be good cause for divorce at any time anterior to 1798, without controversy those laws would have repealed the common law, and the _legal principles_ mentioned in the constitution would have been referable to them. But there were no such laws passed. It is true that, before 1798, the legislature ... did grant divorces upon special application.... These acts do not even exhibit the grounds upon which they were passed." Thus far the judge, apparently, is speaking of the period between the Revolution and the constitution of 1798. We are not told by him whether any legislative divorces were granted in the colonial era, though that is highly improbable. At any rate, it is nearly certain that the common law was not repealed by any provincial statute. For "no such laws have come down to us. If there were any ... they are too deeply buried beneath the deposits of time for our power of revelation;" though, probably, a "diligent search in the colonial records preserved in England, but not accessible to this court, might convict us of error."[1086]

[Footnote 1085: See chap. xvii, sec. ii.]

[Footnote 1086: Case of Head _v._ Head (1847), 2 KELLY, _Georgia
Reports_, 191-211. _Cf._ on the same point, Finch _v._ Finch, 14
_Ga._, 362: and Brown _v._ Westbrook, 27 _Ga._, 102, which varies
from the two other decisions.]

III. ARBITRATION AND DIVORCE IN THE MIDDLE COLONIES

Touching the question of divorce the Middle Colonies held a place much closer to the extreme conservatism of the South than to the broad liberalism of New England. In New Netherland, indeed, it was natural that the Reformation doctrines on this subject should prevail. The civil courts exercised every kind of matrimonial jurisdiction. Already we have seen them trying cases of breach of promise and annulling marriages for the lack of legal forms.[1087] So also they possessed full power to dissolve the nuptial bond.

[Footnote 1087: See chap. xiv, above.]

As early as 1655 John Hicks obtained a divorce on account of his wife's adultery, with leave to remarry. Two years later John George Baldingh was granted a similar decree on the same ground. Anneke Adriaens was released from her husband for bigamy in 1664.[1088] In 1674, the year of interregnum, Governor Colve, with the fiscal and council, heard the petition of Catrina Lane for "letters of divorce" from her husband Daniel, who, being accused of committing a heinous crime, had broken jail and absconded. After due consideration, the court ordered that a "divorce and separation" should be granted if the husband do not within six months appear and "purge" himself of the charge.[1089] The allowance of this delay before a decree of divorce shall take effect, in case of absence of the defendant, appears to be the rule; for in the same year the prayer of Abigail Messenger, deserted wife of Richard Darlin, for divorce with the privilege of remarriage, is for "cogent reasons, provisionally postponed ... six months, during which time the supplicant's husband is commanded to purge himself from this accusation," or in default the supplicant shall be permitted to urge her suit.[1090] Thirteen years earlier Laers, the Finnish priest who later got himself into trouble by performing his own wedding ceremony, is said, in a "meeting," to have secured a divorce from his wife on account of her elopement with Jacob Jongh.[1091]

[Footnote 1088: These three cases are in the _New York Colonial
MSS._, 1630-1664: Dutch: Part First, VI, 49; VIII, 415, 417, 419;
X, 291, 293. They were first brought to light by COWLEY, _Our
Divorce Courts_, 32, 33.]

[Footnote 1089: This was a case of alleged incest: O'CALLAGHAN,
_Doc. Rel. to Col. Hist., N. Y._, II, 704.]

[Footnote 1090: Case of desertion and adultery: _N. Y. Col. MSS._
(translation from the Dutch), XXIII, 248; also, with slightly
different translation, in O'CALLAGHAN, _op. cit._, II, 730.]

[Footnote 1091: Case of elopement with adultery, Dec. 15, 1661:
GERARD, _The Old Stadt Huys_, 386, 387; also in O'CALLAGHAN, _op.
cit._, XII, 359, where we read: "This fine priest demanded with
great circumstantiality in the above-mentioned meeting a decree
of divorce on account of his wife's flight and received the same,
subject to your Honors' approval, on the 15^{th} of December"
(letter from Beeckman to Stuyvesant and others, dated at Altona,
South River, Feb. 1, 1662).]

In 1659 we find what appears to be a cause of separation from bed and board with assignment of alimony. Since "Nicolaas Velthuyzen cannot resolve to live any more in love with his wife," therefore it is decreed "that he shall provisionally supply her with one fat hog, two skepels of maize, according to his own offer for her support, and further disposition shall be made for the maintenance of her and her children."[1092] To this same year, also, belongs a case which seems to be the complement of the English action for jactitation. The plaintiff brings suit because the defendant has privately accused him of having another wife; whereupon the court orders the accuser to prove his charge.[1093] There is also mention of a separation by mutual agreement made originally before the local commissaries at Albany. A record of the higher court at New York in 1670 recites: "Whereas strife and difference hath arisen betweene Albert Andriesen and Gertruyde Vosburgh his wife with y^e which y^e commissaryes at Albany being acquainted" and, finding their "Inclinations averse from living together as man and wife ought to doe they did by consent make an Agreement of their Seperation as likewise how their estates are to be divided betweene them." Therefore the court doth "Ratifye and Confirme what hath beene Already ordered as to that perticular by y^e which each partye is to res[t] satisfyed without giving any further trouble upon this occasion."[1094]

[Footnote 1092: _Records of New Amsterdam_, III, 73.]

[Footnote 1093: _Ibid._, 70. _Cf. ibid._, 370 (1661), for mention
of a case of seduction.]

[Footnote 1094: At "ffort James in New Yorke the 24th day of
October 1670."--MUNSELL, _Annals of Albany_, IV, 20.]

"Tender parents," writes Mrs. Earle, "could not unduly shelter a daughter who had left her husband's bed and board. He could promptly apply to the court for an order for her return to him, and an injunction to her parents against harboring her. It has been plain to see in all such cases which I have chanced upon in colonial records that the Court had a strong leaning towards the husband's side of the case."[1095] This fact appears in a case coming before the local authorities of New Amsterdam in 1665, which, moreover, affords an illustration of the sensible Dutch custom of arbitration in such domestic differences. A trouble having arisen between Arent Jureaensen Lantsman and his spouse Beletje, the burgomasters and schepens refer the matter for adjustment "to reverend Dome. Johannes Megapolenses and Dome. Samuel Driesius." If the arbitrators fail to settle the difficulty by next court day, warning is given that "proceedings may be expected according to the Style and custom of law, as an example to other evil housekeepers." Later Lantsman avers that his wife's parents will not listen to the arbitrators; and so he prays that the court may order his wife to return to him. Thereupon Beletje appears and says she will not return because her husband has often broken his promises to amend. So the court takes a hand on the husband's behalf, forbidding the wife's father, Lodowyck Pas, to keep her above fourteen days, during which time the consorts must be reconciled or else apply to the court again. At the same time Lantsman is duly warned that if further complaint of bad behavior be made, he shall be handed over to the "Honorable Governor General to be punished by his Honor in such manner whether by separation from bed and board imprisonment or otherwise as by his Honor shall then be deemed proper as an example to other householders." But the wife's parent seems to have disregarded the mandate. For, later, sworn jurymen decide that "Beletje Lodowyck" must return to her husband, and that her father shall no longer harbor her without the husband's consent; and this verdict is approved by the court.[1096] "A curious feature of this marriage quarrel," adds Mrs. Earle, "is the fact that this Lantsman, who was so determined to retain his wife, had been more than recreant about marrying her. The banns had been published, the wedding-day set, but Bridegroom Lantsman did not appear. Upon being hunted up and reprimanded, his only proffered excuse was the very simple one that his clothes were not ready."[1097]

[Footnote 1095: EARLE, _Colonial Days in Old New York_, 48.]

[Footnote 1096: For this case (July 11, 1665) see VALENTINE,
_Manual of the Corporation_ (1852), 486, 487, 489, 494.

Some further details are given in the _Records of New Amsterdam_,
V, 262-65: "Lodowyck Pas, his wife and daughter (the wife of
Arent Jurriaansen Lantsman), entering the aforesaid Lantsman's
wife's request to be divorced from her husband, as she cannot
keep house with him. Decreed to postpone the matter until the
next court day when the said Lantsman is to be heard and the
aforesaid Lodowyck Pas was allowed to retain his daughter with
him during that time" (262). Then Beletje produces a remonstrance
against being obliged to go to her husband (263). Lantsman next
appears, and is ordered to produce his witnesses by next court
day (264, 265). No further mention of the matter appears in
these documents. Whether the proceedings just indicated were
preliminary or after failure of arbitration is, of course, not
clear; but the former seems more probable.]

[Footnote 1097: EARLE, _op. cit._, 49.]

A few other cases of separation, occasionally with arbitration, have been gleaned, some of them occurring long after the English rule began. For example, William Hallet petitions "that his wife may be obliged to live with him agreeably to the decision of referees, or in the case of her refusal to comply, that he be granted a divorce."[1098] Whether his prayer was allowed we are not told. In 1697 Daniel Vanolinda prayed "that his wife be 'ordyred to go and live with him where he thinks convenient.' The wife's father was promptly notified by the Albany magistrates that he was 'discharged to shelter her in his house or elsewhere, upon Penalty as he will answer at his Perill;' and she returned to her husband."[1099] The same writer from whom the record of this case is borrowed says "Nicasius de Sille, magistrate of New Utrecht and poet of New Netherland, separated his life from that of his wife because--so he said--she spent too much money," and also because "she was too fond of schnapps,--which her respected later life did not confirm."[1100] Likewise "when Anniatje Fabritius requested an order of court for her husband to vacate her house with a view of final separation from him, it was decided by the arbitrators that no legal steps should be taken, but that 'the parties comport themselves as they ought, in order that they win back each others affections, leaving each other in meanwhile unmolested'--which was very sensible advice. Another married pair having 'met with great discouragement' (which is certainly a most polite expression to employ on such a subject), agreed each to go his and her way, after an exact halving of all their possessions."[1101] But the most remarkable case of reconciliation through help of the court is that of Anneke Schaets, daughter of Domine Schaets, first minister at Fort Orange. It seems, according to Mrs. Earle, that her conduct had in some way scandalized her father's congregation, so that she "refrained from contaminating attendance at communion;" whereupon the dominie, out of resentment, quarreled with the brethren and persisted in "ripping up new differences and offences." At last, after being removed from his clerical office for disobeying a judicial summons, matters were adjusted. Anneke "was ordered off to New York to her husband, 'with a letter of recommendation; and as she was so headstrong, and would not depart without the Sheriff's and Constable's interference, her disobedience was annexed to the letter.'" The record of the court made in July, 1681, runs as follows: "Tho: Davidtse promisses to conduct himself well and honorably towards his wife Anneke Schaets, to Love and never neglect her, but faithfully and properly to maintain and support her with her children according to his means, hereby making null and void all questions that have occurred and transpired between them, but are entirely reconciled: and for the better assurance of his real Intention and good Resolution to observe the same, he requests that two good men be named to oversee his conduct at New York towards his said wife, being entirely disposed and inclined to live honorably and well with her as a Christian man ought, subjecting himself willingly to the rule and censure of the said men. On the other hand his wife Anneke Schaets, promises also to conduct herself quietly and well and to accompany him to New York with her children and property, not to leave him any more, but to serve and help him and with him to share the sweets and the sours as becomes a Christian spouse: Requesting all differences which had ever existed between them both may be hereby quashed and brougt no more to light or cast up, as she on her side is heartily disposed to. Their Worships of the Court Recommend parties on both Sides to observe strictly their Reconciliation now made."[1102]

[Footnote 1098: _New York Col. MSS._, XXIII: _Calendar of Hist.
Man._ (1664-1776), 26; _cf. ibid._, XXIII, 269, 390; XXV, 84, 85.]

[Footnote 1099: EARLE, _op. cit._, 48, 49.]

[Footnote 1100: _Ibid._, 50.]

[Footnote 1101: _Ibid._]

[Footnote 1102: Quoted from EARLE, _op. cit._, 46, 47.]

If one may judge from the scattered fragments of court records thus preserved, the little settlements in New Netherland and early New York were afflicted by their fair share of domestic ills. In the main, however, family life was placid and prosaic. Few cases of absolute divorce, or even of permanent separation, occurred; and this is probably due, at least in part, to the system of friendly arbitration and to the kindly paternalism of the Dutch magistrates.

After the conquest, according to the weight of legal authority,[1103] the people of New York province acquired the rights and privileges of the English common law. The ecclesiastical courts were "regular tribunals of England, and the law administered in them" a part of the general law of the land.[1104] But so far as divorce is concerned, in New York, as in the southern colonies, this law was practically in abeyance throughout the entire provincial era. The code of the duke of York, it is true, does contain a provision on this subject. It is there declared that "In Cases of Adultery all proceedings shall bee accordinge to the Lawes of England which is by Divorce (if sùrd) Corporall punishment or fine and Imprisonment."[1105] In substance, therefore, separation from bed and board, not complete divorce, is thus sanctioned for the scriptural ground. But this provision in its practical result does no more than say that the English law regarding judicial separation _a mensa et thoro_ shall be recognized in the colony, and such would have been the case without it. From the beginning it must have been a "dead letter;" for no tribunal was clothed by statute with adequate jurisdiction to enforce it. Possibly for a time the old Dutch law and customs were in practice accepted as partially binding. We have just seen evidence of the survival of arbitration in cases of separation, and of marital reconciliations managed and recorded by the courts. But, unless granted on this authority in the brief period of transition, judicial divorce _a vinculo_ ceased in New York with the English conquest. According to Chancellor Kent, who may not be quite accurate, "during the period of our colonial government, for more than one hundred years preceding the Revolution, no divorce took place in the colony of New York; and for many years after New York became an independent state, there was not any lawful mode of dissolving a marriage in the lifetime of the parties, but by a special act of the legislature."[1106]

[Footnote 1103: See Chancellor Kent, in Williamson _v._
Williamson, 1 JOHNSON, _Chancery Rep._, 488, 491, 492; and
Chancellor Walworth's decisions in Wood _v._ Wood, 2 PAIGE,
_Chancery Rep._, 108, 111; North _v._ North, 1 BARBOUR, _Chancery
Rep._, 241, 245: 43 _Am. Decisions_, 778; and Burr _v._ Burr, 10
PAIGE, _Chancery Rep._, 20, 35. _Cf._ BISHOP, _Mar., Div., and
Sep._, I, §§ 132, 133, notes; and STORY, _Commentaries_, I, 80,
81.]

[Footnote 1104: BISHOP, _op. cit._, I, § 109.]

[Footnote 1105: _Duke of Yorke's Book of Laws_: in LINN, _Charter
and Laws_, 63.]

[Footnote 1106: KENT, _Commentaries_, II, 97, 98.]

Subsequent to the meeting of the first assembly of the province in 1683 the writer has found no evidence of a legislative divorce, though there is preserved a copy of what appears to be a circular letter from King George III. in 1773, commanding the provincial governors "not upon any pretence whatsoever" to give their assent to any bill "that may have been or shall hereafter be passed by the Council and Assembly of the Province under your government for the naturalization of Aliens, nor for the divorce of persons joined together in Holy marriage nor for establishing a Title" to lands originally acquired by aliens before naturalization.[1107]

[Footnote 1107: Letter of Nov. 24, 1773: O'CALLAGHAN, _Doc. Rel.
to Col. Hist., N. Y._, VIII, 402; also in _New Jersey Archives_,
X, 411, 412.]

But if the legislature declined to interfere, during the early period the executive stepped into the breach. Cadwallader Colden, who died in 1776, tells us that "the Governors of New York took on them the power of granting divorces which has been in disuse at least ever since the revolution neither is there any court in this province that can give this remedy tho' in the neighboring Colonies a divorce is more easily obtained than perhaps in any other Christian Country;" and he significantly raises the "Query whether this may not be for the advantage of a new country which wants people. It is certain that the natural increase of People in New England has been very great perhaps more than in any other of the English Colonies."[1108]

[Footnote 1108: Colden, _Letters on Smith's History of New York_:
in _Coll. N. Y. Hist. Soc._, Fund Series, I, 1868, 187.]

Colden's declaration that divorces, even by authority of the governor, were not granted after the revolution of 1689 harmonizes with the statement of Chancellor Kent. A petition for such executive relief is preserved among the New York Colonial Manuscripts. In this case Richard Wood, who avers that he has lived in Westchester "about fifteen years," during all which time he "hath endeauoured to demeane himselfe as a true and loyall subject and serviceable in his generation," prays for separation from his wife Mary on account of "her most abominable words and actions" purposely designed to "breed difference" between them. The petition is addressed to Governor General Andros; but no record of his excellency's action in the premises is forthcoming.[1109] The granting of divorces by executive authority is unprecedented; and it is just possible that the governors immediately after the English occupation believed their action in such cases in a way sustained by the duke's law; though this hypothesis is scarcely probable.

[Footnote 1109: _New York Col. MSS._, XXV, 84. Here is the
document in full, though some phrases are hard to decipher:

"To the Right Honr^{ble} Maij Edmo^{nd} Andross, Gouev^{nr}
Gen^{ll} of all his Highnes Territories in America:

"The Humble Petiton of Richard Wood:

"Humbly: Sheweth:

"That whereas your Honou^{rs} Petitioner haueing liue under his
Highness Jurisdiction in Westchester about fifteen years, during
w^{ch} time your petitioner hath endeauoured to demeane himselfe
as a true and Loyall subject and serviceable in his generation,
to the best of his power, but through the unchastity and
disloyalty of y^e petitioners wife by name Mary Wood, sustained
great detriment and endured a very troublesome and vexatious
liueing to the Dishonour of God, and repugnant to the holy bond
of wedlock, she haueing as much as in her lay endeauoured the
totall ruine and destruction of your petitioner, by her most
abominable words and actions, haueing openly confessed she hath
defiled her marriage bedd, and that purposely to breed difference
between your petitioner and her selfe, notwithstanding y^e
petitioner endeauoured to reclaime her, by all means lawfull,
who yet continued the same and rather worse, and now purposely
absented her selfe by reason she knows her selfe guilty and to
prevent that shame and punishment due to her base and wicked
actions....

"Y^r Petitioner humbly beggs your Hon^{rs} would bee pleased to
take your petitioners sad case into consideration, and if it
shall seem good in your Hon^{rs} sight a separation may be made,
otherwise noe [illegible] can be expected but a sad euent of such
deplorable doings.

"and y^e Petitioner shall for
Euer Pray as in Duty bound."
]

For the other middle colonies the story is soon told. New Jersey
is in the same position as New York under English rule. The
statute book is silent on the subject of divorce. If divorces
were permitted at all, it must have been by legislative
authority; unless, indeed, in the early period, as in the
sister-province, the governors assumed the power to act.

The Great Law of 1682 for Pennsylvania authorizes divorce on
the scriptural ground. The punishment for adultery prescribed
by this statute may be compared with the penalties mentioned in
the early New England and New York codes. One convicted of that
crime "shall for the first offence be publicly whipt and suffer
one whole year's imprisonment in the house of correction, at hard
labor, to the behoof of the publick, and longer if the Magistrate
see meet. And both he and the woman shall be liable to a Bill
of Divorcement, if required by the grieved husband or wife,
within the said term of one whole year after Conviction." For a
second offense the penalty is "imprisonment in manner aforesaid,
During Life." If the husband or wife sins with a person who is
unmarried, then for the first offense either shall suffer half a
year's imprisonment; and for a second transgression, imprisonment
for life.[1110] Nearly the same penalties are imposed for
incest[1111] and for bigamy.[1112] It will be noticed that the
Great Law, which was re-enacted in later statutes, deals with
divorce much in the same spirit as does the duke of York's code.
In each case divorce is allowed for the one scriptural cause; but
whereas the New York statute plainly intends the separation to
be merely from bed and board, "according to the law of England,"
on the other hand, by its peculiar terms, the Pennsylvania act
seems to authorize "bills" for complete dissolution of wedlock.
However that may be, in this case, as in the other, the law has
no practical significance; for, with one exception below named,
the jurisdiction of the English spiritual courts was not devolved
upon any of the provincial tribunals. Accordingly, the historian
Gordon, in his summary of the laws of the colony, is able to say
that these "made no general provision for the dissolution of
marriage; and divorce from bed and board was allowed in case of
bigamy only, on request of the first wife or husband, made in one
year after conviction."[1113]

[Footnote 1110: LINN, _Charter and Laws_, 109, 110. This
provision was abrogated by William and Mary, 1693, but re-enacted
the same year: _ibid._, 110, note, 194 (the re-enacted law).

By the Dutch code fornicators, if single, are to marry or pay
a heavy fine; O'CALLAGHAN, _Ordinances_, 495. Under the duke
of York the penalty is marriage, fine, or corporal punishment,
in the discretion of the court: _Duke of Yorke's Book of
Laws_: in LINN, _Charter and Laws_, 27. The New Jersey laws of
"Carteret's time" (_ca._ 1675) contain the same provisions:
LEAMING AND SPICER, _Grants_, 107; and the Pennsylvania statutes
authorize the county court to impose "all or anie" of these three
penalties: LINN, _op. cit._, 145, 210; BIOREN, _Laws_, I, 2, c.
3.]

[Footnote 1111: For incest the guilty person "shall forfeit
one-half of his estate, and both suffer imprisonment a whole
year, in the house of Correction, at hard labour, and for
the second offence, imprisonment in manner aforesaid during
life."--LINN, _op. cit._, 110; abrogated and re-enacted in 1693:
_ibid._, 194; and a similar law was passed in 1700: BIOREN,
_Laws_, I, 2, 6.]

[Footnote 1112: For bigamy, according to the Great Law, whosoever
shall be "Convicted of having two wives or two husbands, att one
and the same time shall be imprisoned all their Lifetime in the
House of Correction, at hard labour, to the behoof of the former
wife and children, or the former husband and children." When one
of the persons is single and the other married, the penalty is
the same: LINN, _op. cit._, 110, 111; abrogated and re-enacted in
1693: _ibid._, 194; and again in substance re-enacted in 1700:
BIOREN, _Laws_, I, 2, 6.]

[Footnote 1113: GORDON, _Hist. of Pa._, 557. But GORDON (_op.
cit._, 70) is in error when he states that by the Great Law
divorce was sanctioned after a "second" offense; and regarding
this law some other mistakes occur.]

Absolute divorces were, however, granted by legislative authority. Of these an example occurs in 1769, when there was laid before the council a "Bill sent up by the Assembly for the Governors concurrence, entitled 'An Act to Dissolve the Marriage of Curtis Grubb, of the County of Lancaster, Iron Master, with Ann, his wife, late Ann Few,'" and to enable them to contract further matrimony. After amendment this bill was approved, and Curtis was allowed to "take to Wife any other woman during the Natural Life of the said Anne, in the same manner as he might or could do if she, the said Anne was actually Dead."[1114] In the same way, on March 21, 1772, the "marriage of George Kehmle of the City of Philadelphia, Barber, with Elizabeth, his wife," was dissolved; but on April 27, 1773, the decree was declared void by the king in "an Instrument of Writing under the Privy Seal;" and on the 11th of next October the royal veto was published by a proclamation of the governor, Jonn Penn.[1115] There is also extant an example of annulment of wedlock by the legislative body. On March 20, 1772, a bill to declare void the "pretended marriage of Rebecca Vanakin with a Certain John Martin" was presented to the governor; but after six months' deliberation, on September 19, it was returned to the assembly with his excellency's veto.[1116] There is no evidence to show, however, that divorces either partial or absolute were at all common in the Quaker province.

[Footnote 1114: _Pa. Col. Rec._, IX, 564, 566, 567, 568, 580.]

[Footnote 1115: _Ibid._, X, 26, 42, 104, 105.]

[Footnote 1116: _Ibid._, 40, 53, 54, 55, 104, 105.]