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declaring what would be good cause for divorce at any time anterior to 1798, without controversy those laws would have repealed the common law, and the legal principles mentioned in the constitution would have been referable to them.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 At any rate, it is nearly certain that the common law was not repealed by any provincial statute.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]
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.
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]
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 ye which ye 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 ye which each partye is to res[t] satisfyed without giving any further trouble upon this occasion."[1094]
"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]
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]
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]