For the other New England colonies a point of special interest is the existence of legislative divorce. The popular assemblies, bearing the name of "general courts," are seen freely passing decrees of divorce, and this function is usually exercised concurrently with the law tribunals or by way of supplementing their jurisdiction.[1003] From the record of proceedings in such cases many an interesting glimpse is obtained of the social life of the times. Thus the general court of Plymouth grants dissolution of wedlock for desertion and adultery; but the conservatism of public sentiment in this regard is shown by the fact that for the seventy-two years during which that colony existed as a separate jurisdiction only six instances of divorce have been discovered. The first case occurred in 1661, when Elizabeth Burge on the scriptural ground was released from her husband Thomas, who for his misconduct was sentenced to be severely whipped at Plymouth and again at Sandwich. The court took care that Elizabeth's temporal interests should be protected. Not only did she receive one-third of her late husband's "estate, viz., lands, goods, and chattles, as her proper right forever;" but with his consent she got also "an old cotton bed and bolster, a pillow, a sheet, and two blankets ... with some other smale thinges ... to the vallue of forty shillings."[1004] The experience of William Tubbs, of Scituate, is unique. His wife Marcye was notoriously unfaithful to her nuptial vow and eventually eloped with another man. So he sought a divorce; and accordingly in 1664, "after the patriarchal style," as Goodwin observes, William Paybody of Duxbury gave him a "writing of divorcement," with Lieutenant Nash and John Sprague as witnesses. This document the general court treated as a nullity, fining Paybody five pounds and each of the witnesses three pounds for their resort to self-help. But four years later that court came to his relief in the regular way. In July, 1668, after serving due notice on the libellee through letters addressed to the government of "Road Iland"—where "Goodwife Tubbs" had fled with her paramour—he was pronounced "legally cleare from his couenant of marriage formerly made with Marcye, his late wife," with the privilege of marrying again, "if hee see fit soe to doe;" while she is solemnly declared to have cut herself off from the "[p=]son" and "estate of the said William."[1005] For similar cause and on the same conditions John Williams was released from his wife Sarah in 1674.[1006] The next year "Edward Jenkins, of Taunton, petitioned that his daughter Mary be divorced from Marmaduke Atkinson, who had been out of the Colony and made no provision for her during seven years or more. The decision was a singular one; namely that while the court sees no cause to grant a divorce 'yett they doe apprehend her to be noe longer bound, but doe leave her to her libertie to marry if she please.'"[1007] This was probably the court's homely way of saying that, the common-law term of seven years' absence without word having expired, it regarded the marriage as ipso facto dissolved without judicial process, though a formal decree was the more prudent course in case a second marriage were contemplated.[1008] In the Plymouth records, as often elsewhere, the term "divorce," following common-law usage, is employed for a sentence of nullity in case of a void or voidable marriage. Thus in 1680 Nicholas Wade, of Scituate, and his daughter, Elizabeth Stevens, present a petition "wherein they complaine of a great and sore crosse," her husband being a man of "debauged life, expressed by his plurallitie of wifes." Elizabeth was therefore "dismissed" from her conjugal bond; while the "debauged" Stevens for his "abominable wickedness" was "centansed to be seueerly whipt att the post."[1009] The last case is that of John Glover of Barnstable whose marriage with Mary his wife was dissolved in 1686 on account of her unfaithfulness.[1010] It is significant that four of the six petitions just enumerated are brought against the wife on the scriptural ground and none against the husband for the same cause. From this fact it may perhaps be inferred that in Plymouth Plantation, as at that time in Massachusetts, male adultery was not recognized as a legal ground of divorce.[1011]
Similar illustrations of the life and thought of the times are afforded by the records of New Haven colony. In that "biblical commonwealth" it is, of course, not surprising that the influence of Judaism should be strongly felt. By the "capital laws" adultery is punished with death; so, before 1648, it is ordered that if "any marryed person proved an Adulterer, or an Adulteresse, shall by flight, or otherwise, so withdraw or keep out of the Jurisdiction, that the course of Justice (according to the mind and Law of God here established) cannot proceed to due execution, upon the complaint, proof, and prosecution, made by the party concerned, and interessed, a separation or Divorce, shall by sentence of the Court of Magistrates be granted," and the innocent party "have liberty to marry again." For physical incompetency marriage may be "declared void and a nullity;" and here we get a glimpse of the carnal motives for wedlock handed down from the Mosaic code and tenaciously surviving in all modern systems of law. Avoidance of marital "duty" is the real ground of action. Therefore should the man deceive the wife as to the fact, then such "satisfaction shall be made to the injured woman, out of the estate of the offender, and such fine paid to the Jurisdiction, as the Court of Magistrates shall judge meet."[1012] In like spirit an unusually stringent rule as to desertion is laid down. If either party shall wilfully abandon the other, "peremptorily refusing all Matrimoniall society, and shall obstinately persist therein, after due means have been used to convince and reclaim, the husband or wife so deserted, may justly seek and expect relief, according to 1 Cor. 7:15."[1013] Here no definite term of wilful desertion is fixed. But in 1663 divorce with remarriage is permitted in case of seven years' absence, when the deserted consort has "noe certaine intelligence" of the other's being alive or purposing to return.[1014] Whether this comprehends the case of wilful desertion we are not told.
c) Connecticut.—The laws of Connecticut relating to divorce gained a surprisingly early maturity. Perhaps in none of the other colonies was so liberal, and on the whole so wisely conservative, a policy adopted. That plantation almost deserves the patriotic eulogy bestowed upon it by Swift, who declares in 1795 that the "institution of a court for the decision of such controversies, and the limitation of their power to such cases as the public good requires to be remedied, gives the practice adopted by" the Connecticut "laws, a decided preference to the practice of all other nations, and renders our mode of granting divorces, as favourable as the other modes have been unfavourable, to the virtue and happiness of mankind."[1015] Certainly in the middle of the seventeenth century no state, with the possible exception of Holland, possessed a system so modern in its character. Separation from bed and board was rejected. Only in one instance, it is said, and that by the assembly, was such a decree ever granted.[1016] Reasonable and fairly liberal causes of divorce a vinculo were clearly specified; husband and wife were treated with even justice; and, although legislative divorce, always liable to abuse, was permitted, the greater part of litigation seems always to have been intrusted to the regular courts. In short, Connecticut, in all the more essential respects, anticipated the present policy of civilized nations by nearly two hundred years.
By the act of 1667 the court of assistants is empowered to grant bills of divorce from the bond of matrimony to either party, with the privilege of remarriage, for adultery, fraudulent contract, three years' wilful desertion with total neglect of duty, or for seven years' "providential" absence unheard of.[1017] This law was re-enacted in 1677;[1018] and the four causes, with scarcely the change of a word in the terms of the statute, appear in the revision of 1715,[1019] and again and again in the succeeding compilations until 1843, when two new grounds—"habitual intemperance" and "intolerable cruelty"—were added.[1020] The real scope of this singularly liberal provision for divorce thus early adopted cannot, however, be fully appreciated unless two important facts be kept in mind. First, in judicial practice adultery acquired a very broad meaning. Not only did it cover the misconduct of the husband as well as that of the wife, but the statute was interpreted to allow the latter a divorce for the "criminal connection" of the man with any single women.[1021] Secondly, "fraudulent contract" was construed "according to its plain and natural import, that is a contract obtained by fraud," and not in the very restricted and conventional sense which the courts, perhaps misled by a remark of Blackstone, have in later years sometimes adopted.[1022]
Long before the act of 1667, and for one hundred and eighty-three years thereafter, the legislative assembly of Connecticut, side by side with the court of assistants or its successors, reserved to itself the right of granting bills of divorce. This power seems in the main to have been exercised with caution, though there are not lacking signs that it was sometimes abused. The general policy, according to Swift, was only to grant relief in this way in "cases of intolerable cruelty, and inveterate hatred, and such gross misbehaviour and wickedness as defeat the design of marriage, and presumptive proof of a criminal connection ... , where the positive proof required by law cannot be had."[1023] Yet this wise rule, if legislative divorce is to be allowed at all, does not in all cases seem to have been rigidly followed. The first instance of action by the general court in such questions found in the records occurs in 1655. "Considering the sad complaint of Goody Beckwith of Fairfield, in reference to her husband," and weighing the evidence presented "of ye manner" of his "departure and discontinuance," the assembly declares that if the "said Goody Beckwith, wife of Thomas, shall uppon her oath testifie to the Magistrates that are shortly to keepe Courte at Strattford, that her husband's departure was as others have testified it to bee; and yt shee hath not heard from him nor of him any wayes since hee deserted her, the said Magistrates may give her a bill of Divorce."[1024] This is, of course, an example of granting the court jurisdiction in a particular case where perhaps the evidence was otherwise insufficient to warrant a decree. Two years later the general court frees Robert Wade of Seabrook from his "Couenant of marriage" with Joane his "late wife," because of the evidence presented to them of her "unworthy, sinfull, yea, unnaturall cariage" in staying in England and "disowning fellowship" with him for "neare fifteene yeares."[1025] Again in 1660, taking time by the forelock in the behalf of Sarah North, the same body orders that if she "hear not of her husband by that ye seauenth year be expired, (he haueing bene absent six already) ... then, she shalbe free from her coniugal bonds."[1026] So also two years later, "vpon good consideration and solid reasons"—of what nature the record saith not—Bridget Baxter is likewise released; and because the estate which her late husband left with her "is sold to pay debts, all excepting a bed and her wearing aparell," the creditors of "ye said estate" are prohibited from "seizing extending or any way troubleing ye remainder, vntil ye Court see cause to ye contrary."[1027] In 1670 Hanna Huitt "is at liberty to marry if shee see cause," for the absence of Thomas during "eight years and better."[1028]
The case of Elizabeth Rogers is of special interest; for it is much to be feared that the worthy deputies and magistrates regarded "free thinking" as a sufficient cause for dissolution of wedlock. In 1675 she laid her petition before the court of assistants, which found "some difficulties as to a present issue finally." Yet the case being one which called "for compassion to the woman under so great distress and hazard," it was referred for settlement to the general court, Mrs. Rogers having liberty meanwhile to dwell with her father.[1029] Accordingly, at its next session the assembly, accepting the "allegations and proofes presented to clear the righteousness of her desires," released Elizabeth from her "conjugall bond."[1030] A year later provision is made for alimony with custody of the children; and now at last the reason for Goodwife Rogers's "great distress and hazard," thus far carefully omitted from the record, is clearly divulged. "Her husband," runs the order, "being so hettridox in his opinion and practice," and having even "in open Court declared that he did vtterly renounce all the vissible worship of New England, and professedly declare against the Christian Sabboth as a mere invention," the court grants the mother and her father, Mathew Griswold, the care and custody of the children "to be brought up and nurtured by them (in the admonition and fear of the Lord)," also ordering John Rogers to pay "towards the mayntenance of his children, the sume of twenty pownds" in four equal annual instalments. In case "he fayle of payment, the reversion of the land by sayd John Rogers made ouer to Elizabeth his late wife, at Mamacock" is to be held as security.[1031]
Another case, that of Richard Edwards, deserves notice, for as late as 1690 it affords us an example of the reference of public questions to the elders. In October of that year Edwards presented a petition for divorce from his wife Elizabeth. The general court "declare they doe not find reason to grant" it.[1032] But Richard is bound to have "releife therein if the law of God or man will affoarde it him." So he comes before the court again "desireing that a councill of able diuines upon his charge might be called to consider his case and giue their resolves upon the same to the court." The latter, though not "fully sattisfyed to alter their apprehensions from what they were formerly, yet considering the deplorable state of the petitioner, and the many intolerable temptations he lyes open too, are willing to doe what they can for his releife, and to recomend it to the Genll Court October next to consider the case, and doe desire that the Reuerend Mr. Hooker" and five other ministers give their attendance upon the court "to hear the case and grant what light they can come at" to guide the issue.[1033] No definite ground for the petition, it will be observed, is assigned; but one may safely hazard a guess that "hettridox" opinions were again involved. At any rate, Richard's plan was successful. The next October he was released "from his conjugall tye," the court first "haueing considered the case with seriousnesse and taken the best advice they could com at by the word of God and learned and worthy diuines."[1034]
As time went on, the cases of legislative divorce became few and far between. The courts were felt to be the proper place for such business.[1035] In 1753 Mary Larkum was freed from her husband Job on account of his "barbarous and inhuman carriage toward her."[1036] In 1761 the assembly set aside a divorce granted two years before by the superior court for alleged wilful desertion;[1037] and at rare intervals that body was appealed to during the next seventy-five years.[1038] There was a sudden increase of business in 1837.[1039] From that date until 1850 the annual crop of legislative divorces is surprisingly large.[1040] Sometimes the "resolve" granting the petition is curt and informal; while often it is entirely silent as to the exact cause of complaint.[1041] It would seem that the practice of intrusting proper judicial business to popular political bodies was yielding the usual evil fruit; for at last, in 1849, a statute provides that the "Superior Court shall have sole and exclusive jurisdiction of all petitions for divorce."[1042]
d) Rhode Island.—It is, however, in the judicial history of Rhode Island that legislative divorce has left its deepest mark and had its worst consequences. In the American colonies and states this practice has perhaps never caused the same hardships or flagrant injustice as it did in England previous to the act of 1857. Ordinarily, as in that country, relief has not in effect and of necessity, owing to the cost of the proceedings, been entirely denied to anyone because he was poor. On the other hand, popular political assemblies, such as American state legislatures, are on other grounds ill fitted for judicial functions. Their ignorance or carelessness may produce results bad for society. For they possess nothing like the legal knowledge and experience of the House of Lords, in which petitions for divorce were first considered. Before the legislative trial, as in England, the facts have not already been fairly well ascertained in the law and spiritual actions; and if the same harsh discrimination between rich and poor does not appear, there is at least equal opportunity for jobbery and favoritism. It is well that the custom practically has long ceased to exist in the United States.