CHAPTER XV
DIVORCE IN THE AMERICAN COLONIES
[Bibliographical Note XV.—The most valuable original material for the history of divorce in Massachusetts during the period of the first charter is afforded by the decisions of the court of assistants in the exercise of its primary jurisdiction. These may be found in Vol. I of the Colonial Records, to September 7, 1641; the Barlow MS. Records of the Court of Assistants, October 28, 1641, to March 5, 1643/44; published by Whitmore in Bibliographical Sketch of the Laws of the Mass. Colony (Boston, 1890); and, after an interval for which the record is missing, in Noble's Records of the Court of Assistants, March 3, 1673, to March 23, 1691/92 (Boston, 1901). A number of cases have been found in the MSS. Early Court Files of Suffolk, supplemented by the MSS. Records of the County Court of Suffolk, and the MSS. Records of the County Court of Middlesex. The Massachusetts Colonial Records are, of course, very important. There is an instructive passage in the first volume of Hutchinson's History of Mass. (Salem, 1795); and much aid has been given by Whitmore in the work already cited; Newhall, Ye Great and General Court (Lynn, 1897); Goodwin, Pilgrim Republic (Boston, 1888); and Cowley, Our Divorce Courts (Lowell, 1880). The last-named work in part had already appeared in the Albany Law Journal, XX (Albany, 1879). It may be read in connection with the same writer's Famous Divorces of All Ages (Lowell, 1878); and his Browne's Divorce and its Consequences (Lowell, 1877). For the period of the second charter the divorce record is missing until 1739. Between that date and 1760 the Suffolk Files already mentioned yield eleven cases. From 1760 to 1786 there is a continuous and apparently complete record in a MS. "Divorce" book in the office of the clerk of the supreme judicial court for Suffolk county.
An interesting petition may be found in the eighth volume of the Collections of the New Hampshire Historical Society; and in general for all the New England colonies the records and the various collections of laws mentioned in Bibliographical Note XII have been used. Durfee, Gleanings from the Judicial History of Rhode Island (Providence, 1883), and Arnold, History of the State of Rhode Island (New York, 1874), are also helpful. Trumbull, Appeal to the Public (New Haven, 1788), gives some statistics in connection with the alleged laxity of Connecticut divorce laws; but historically his statements are misleading and very inaccurate.
In the southern colonies the English divorce laws were in abeyance, except in case of separate alimony. The meager materials existing for a "negative" sketch are therefore derived almost wholly from the judicial decisions. Among these—cited more fully in the footnotes—the most instructive are: for Virginia, Fulcher v. Fulcher, in 1 Palmer's Calendar of Va. State Papers (Richmond, 1875), 29; Purcell v. Purcell, 4 Hening and Munford's Reports (Richmond, 1854), 506; and Almond v. Almond, 4 Randolph's Reports, 662, or 15 American Decisions, 781. For Maryland, Galwith v. Galwith, 4 Harris and McHenry's Md. Reports (Annapolis, 1818), 477; Farnshill v. Murray, 1 Bland's Reports, 479, or 18 American Decisions, 344; Helms v. Franciscus, 2 Bland's Reports, 544, or 20 American Decisions, 402; Wallingsford v. Wallingsford, 6 Harris and Johnson's Reports, 485; Macnamara's case, Scott's case, Govane's case, all in 2 Bland's Reports, 566, 568, 570; Crane v. Meginnis, 1 Gill and Johnson's Ch. Reports, 468, or 19 American Decisions, 237; Wright v. Wright's Lessee, 2 Md. Reports, 429, or 56 American Decisions, 723; and Jamison v. Jamison, 4 Md. Ch. Reports, 289, 295. For Georgia see Finch v. Finch, 14 Georgia Reports, 362; and especially Head v. Head, 2 Kelly's Reports, 191.
The New York Colonial MSS. preserved in the State Library at Albany have yielded several documents of importance for the chapter. Cadwallader Colden, the last governor of the province, has an instructive passage in his Letters on Smith's History of New York: Collections New York Historical Society, Fund Series, I, 1868, showing that in the early period divorces were granted by the royal governors. Various cases and illustrations have been gleaned from Gerard, The Old Stadt Huys; Valentine, Manual of the Corporation; Records of New Amsterdam; Munsell, Annals of Albany; Duke of Yorke's Book of Laws; New Jersey Archives; O'Callaghan, Ordinances; and especially O'Callaghan and Fernow, Documents—all of which have been described in Bibliographical Note XIV. A number of extracts from old records have been borrowed from Alice Morse Earle's excellent book Colonial Days in Old New York (New York, 1896); and among the decisions cited, Chancellor Kent's opinion in Williamson v. Williamson, Johnson's Chancery Reports, 488, 491; and that of Chancellor Walworth in Wood v. Wood, 2 Paige's Chancery Reports, 108, 111, bearing on the validity of the common law in the province, are of special interest.
The materials for Pennsylvania are furnished by Linn, Charter and Laws; the Colonial Records of Pennsylvania; Bioren, Laws (Philadelphia, 1803); and Gordon, History of Pennsylvania (Philadelphia, 1829). Lastly, for the entire group of colonies, Kent, Commentaries (Boston, 1884); Story, Commentaries (Boston, 1891); and particularly Bishop, Marriage, Divorce, and Separation (Chicago, 1891), have been of service.]
I. IN NEW ENGLAND
Under normal conditions civil divorce is the counterpart of civil marriage. Naturally, in the New England colonies the same influences which determined the rise of civil marriage secured also the adoption of a liberal policy respecting divorce. In each case there was a reaction against the forms and abuses of the ancient canonical and ecclesiastical systems; while at the same time the innovations were in a measure sustained by appeal to the Levitical code. Everywhere as a result the ideas of the Reformation Fathers—the general trend of Protestantism—found effective expression in statute and judicial decree. For in most respects throughout New England the broad modern doctrines of the Reformatio Legum of Edward VI.'s commission, though scarcely even now completely victorious in the mother-land, were from the outset put in practice by both Puritan and Separatist. The American legal conception of divorce as pertaining, not to the criminal, but exclusively to the civil jurisdiction, had its birth in the seventeenth century.[947] In all the New England colonies the canonical decree of separation from bed and board was practically, though not entirely, abandoned. On the other hand, a dissolution of the bond of matrimony was freely granted for various causes, such as desertion, cruelty, or breach of the marriage vow; and usually, though not always, the husband and wife were dealt with as equals before the law. These general principles will be illustrated, somewhat in detail, by reference to the history of the particular provinces.
a) Massachusetts.—For the Bay Colony we have a concise summary from the pen of Governor Hutchinson, who presided in the divorce court for many years. "In matters of divorce," he says, "they left the rules of the canon law out of the question; with respect to some of them, prudently enough. I never heard of a separation, under the first charter, a mensa et thoro. Where it is practised, the innocent party often suffers more than the guilty. In general what would have been cause for such a separation in the spiritual courts, was sufficient, with them, for a divorce a vinculo. Female adultery was never doubted to have been sufficient cause; but male adultery, after some debate and consultation with the elders, was judged not sufficient. Desertion a year or two, when there was evidence of a determined design not to return, was always good cause; so was cruel usage of the husband. Consanguinity they settled in the same degrees as it is settled in England and in the levitical laws."[948]
By the code of 1660 the court of assistants, sitting twice a year, is given authority to hear and determine "all causes of divorce."[949] This is the only extant law on the subject for the period of the first charter. It is, however, almost certain that the assistants in the "quarter courts," or other tribunals, possessed such jurisdiction from the beginning. It is probably intended to be covered by the authority conferred on the quarter courts in 1639;[950] and the evidence of the Halsall case shows that as early as 1656 "the power of divorce doth properly belong" to the court of assistants. From the same case it has been inferred that the code of 1649 may have contained a like provision.[951]