The legislation of Rhode Island begins with a conservative measure in 1650. It is "ordered, that no bill of divorce shall stand legall ... butt that which is sued for, by the partie grieved" and not "for any other case but that of Adulterie." This cause may be proved by the injured person, "eyther by the man against the woman, or by the woman against the man, before the Generall Assemblie" which by the act is given exclusive jurisdiction in such questions. After separation "each partie shall be as free from" the other as "before they came together."[1043] But in 1655 a change is made in jurisdiction, as also by implication, in the legal grounds of divorce. First we have a striking example of the tendency of Rhode Island to vest important functions in the officers of the local community. "It is ordered, that in case of adulterie, a generall or towne magistrate may grant a bill of divorce against ye partie offendinge uppon ye demand of ye partie offended." Furthermore, other grounds of complaint are contemplated, though they are not clearly expressed; for it is declared that "in all other cases of separation or divorce between man and wife, all persons shall addresse themselves for release to ye Generall Court of Commissioners"—the name which the assembly bore during the parliamentary charter. Here we have the usual reservation of special cases to the legislature, among which, it seems clear, separation from bed and board is had in view.[1044]
In the early days the assembly did not lack business. At the June session, 1655, John and Elizabeth Coggeshall, who had separated "by mutuall and voluntarie consent," were each allowed on separate petition to contract further marriage.[1045] Two other cases occurred the same year;[1046] and later examples have been collected. In 1665 the assembly "granted a divorce for the adultery of the wife on her own confession, and at the same time sentenced her to pay a fine and be whipped."[1047] At this time is also recorded the pathetic story of Horod Long. In her petition addressed to the royal commissioners,[1048] then in the colony, she says: "I was upon the death of my father sent to London by my mother in much sorrow and griefe of spiritt, and then taken by one John Hickes vnknown to any of my friends, and by the said Hickes privately married in the vnder Church of Paules, called Saint Faith's Church, and in a little while after, to my great griefe, brought to New England, when I was betweene thirteene and fourteene years of age." After living two years and a half at Weymouth the pair came to Rhode Island in 1640. "Not long after," Horod continues, "there happened a difference betweene the said John Hickes and myselfe, soe that the authority that then was vnder grace, saw cause to part vs, and ordered I should have the estate sent me by my mother." Evidently she was allowed to resume her maiden name. Here we catch a glimpse of the earliest known divorce in Rhode Island. After the separation Hickes fled to the Dutch,[1049] taking with him, in defiance of the court's order, most of the wife's property. Thus she was "put to great hardshipe and straight;" for she was friendless and "not brought up to labour." To gain a maintenance, therefore, without any formal celebration or other proceedings, she allowed herself to be "drawne by George Gardener," and lived with him as his wife, being so reputed by the neighbors, for near twenty years, bearing him "many children." Clearly, as further shown by the testimony, we have here a case of "common-law" marriage. Yet during this time Horod alleges she had "much oppression of spiritt" regarding her questionable condition; but Gardener, who had enjoyed the remnant of her estate and all her labor, refused either to allow her a separate support or to cease to trouble her. So in her distress of mind she appealed to the commissioners for relief, asking separate maintenance for herself and child, and that "hee may bee restrained from ever meddling with" her. The commissioners referred the matter to the governor, requesting him to "doe justice to the poore petitioner;" and the governor placed it in the hands of the assembly. That body was without compassion; for the woman had "impudently" discovered "her owne nakedness." She and her partner were treated as ordinary offenders, being each fined twenty pounds, and warned henceforth not "to lead soe scandalous a life, lest they feel the extreamest penalty that either is or shall be provided in such cases."[1050]
To this same eventful year, 1667, belongs the only case of partial divorce yet discovered. Richard and Mary Pray joined in a petition asking a complete dissolution of their nuptial bond. The assembly denied their prayer, but allowed them to live apart without the right of remarriage.[1051] On the powers of the general court at this time Arnold makes the following comment: "Not only were divorces granted and a separate maintenance awarded to the wife, but the whole property of the husband was attached and held by the Assembly, until the provisions of the decree had been satisfied. In the case of John Porter ... they went even further, and annulled all transfers of property ... made by him since the separation from his wife, which had not already been recorded. Upon his settling a satisfactory estate upon his wife these disabilities were removed."[1052]
After the establishment of the royal charter the ordinary jurisdiction in divorce matters was vested in the court of trials, composed of the governor and assistants who formed a part of the assembly; but the latter body continued to act when it saw fit. But "it would seem," says Arnold, "that the separate powers of the magistrates were not distinctly defined or well understood, for a censure was passed upon John Green, Assistant of Warwick, for having granted, by his own authority, a bill of divorce. This proceeding was sharply reproved by the Assembly, as being a usurpation of judicial power in superseding the action of the Court of Trials. The town of Warwick declared the divorce to be legal, and protested against this censure upon their leader."[1053] In this case it may perhaps be right to infer that a reminiscence existed of the order of 1655, already cited, vesting jurisdiction in the principal cases of divorce in a single "town" or "general" magistrate, the latter term applying to an "assistant" under the royal charter. The assembly in 1676 released John Belou "from all matrimonial engagements" to his wife Hannah.[1054] An entry in the records of Muddy River, Mass., for July 30 of the same year, informs us that John "Lewis came from Road Island where his wife gave him a paper of dismission from her in Novr. last & libertie to marrie another woman & he is now engaged to ye widow Williams to marry her, by theire own confessions."[1055]
In 1683 we have an interesting example of the summary punishment of a divorced man by the legislature, doubtless for the misconduct which led to the decree. "The power of the Assembly to expel its members was rarely exercised, but at the adjourned session, a deputy from Warwick, against whom complaints were brought and a divorce granted on petition of his wife," at this time, "was deemed unfit to hold his seat, and was therefore expelled."[1056] Two years thereafter a law was passed making "five years neglect or absence of either party" a ground for divorce;[1057] but the period was extended to seven years in 1749.[1058]
According to Judge Durfee, after power to grant divorces came to the superior court in 1747[1059] the jurisdiction of the assembly "languished;" but "it continued, nevertheless, to be invoked in exceptional cases,[1060] which either were not provided for by the statute or were too flimsey or too whimsical for judicial treatment. There is an uncanny tradition, still vaguely surviving, that in such cases grave legislators were sometimes plied in the lobby with solicitations and arguments too peculiar for public discussion. After the constitution the more usual course for the assembly was, not to hear the petition, but to authorize the supreme court to hear it by special act, if without such act the court was incompetent. Divorces, however, were granted as late as 1850. In January, 1851, the assembly had several petitions pending before it and transferred them, together with all documents and depositions in support of them, to the supreme court, 'where,' the resolution of transfer tartly remarks, 'the said petitions should have been filed,' and at the same time authorized and required the court to try them."[1061]
II. ENGLISH DIVORCE LAWS IN ABEYANCE IN THE SOUTHERN COLONIES
It is an established principle of jurisprudence that colonists settling in an uninhabited land take with them all the laws of the mother-country which are suited to their new circumstances.[1062] This doctrine is sustained by the decisions of the Courts.[1063] It follows, according to the views strongly supported by Bishop, "that all such laws of England, relating to marriage and divorce, by whatsoever names there known, are, as they existed at the respective times of the settlements here, common law in our several states."[1064] The law of divorce which the American colonists brought with them in the seventeenth century allowed a separation from bed and board by decree of an ecclesiastical court, and for two causes only, adultery and cruelty. Absolute divorce was not recognized. But while the colonists carried with them the English law, they did not bring likewise the English courts. Therefore it "results that these laws can practically be administered with us only as far and as fast as tribunals are established on which, directly or by implication, is conferred the jurisdiction." The laws slumber, so to speak, until quickened through the creation of courts by the legislature. "Between the arrival in a colony of the law from the mother-country, and the organization of courts for its enforcement, some space of time must intervene. And during such space the law must be practically in abeyance, or inoperative." Should a "tribunal be created with jurisdiction extending to a part only of the law, such part will become operative, but the rest will remain inert as before."[1065] Besides, for our present purpose it is highly important to note that the English courts "have specifically held, that the matrimonial law of the ecclesiastical tribunals is a branch of the law which colonists take with them."[1066]
Since, therefore, the church courts were never established in any of our American provinces, it follows by the foregoing rule that there was no tribunal competent to decree a divorce or separation in such of them as had not assigned the jurisdiction in question to some other body. This was the case throughout the southern colonies. Their statute books are entirely silent on the subject of divorce jurisdiction. Judicial separations from bed and board did not exist; nor prior to the Revolution has there been discovered a single case of absolute divorce by legislative act—a practice so common in New England during the same period—although Parliament had set the example before the close of the seventeenth century. On the other hand, separations by mutual consent, or on account of bad conduct, or parol[1067] separations in some form, did occur, as they always do occur in any society; and it is from the meager records of judicial actions regarding separate maintenance in such cases that one learns something concerning the state of southern law and custom before the Revolution.