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]
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]
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.
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]
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.