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Liberty And Disunion
Three Centuries of Divorce, American Style
October 1971 | Volume 22, Issue 6
England’s American colonies inherited a complex pattern of divorce. In medieval days the fathers of the all-powerful Church decreed that the sacrament of marriage, once registered in heaven, could not be erased on earth. But even the canon law recognized that fate could create intolerable dilemmas. A spouse might go mad, disappear, or willfully and wickedly desert the marriage or even the Christian faith. In such cases ecclesiastical courts gave a kind of halfway divorce— divortium a mensa et thoro —from bed and board. The recipient was free of obligation to the offending partner but could not wed again. One marriage per lifetime was God’s quota. But to this, too, there was an exception. The Church would grant divortium a vinculo —absolute divorce, with the privilege of remarriage—on the basis that the original marriage had never been valid. (In modern law this would be an annulment rather than a divorce.) Grounds for annulment could be the discovery of force or fraud in arranging the match, failure to have consummated the marriage, or the revelation that the partners were in some way related. Thus, a few kings and nobles with enough money and power, and a strong wish to discard a wife, could find canon lawyers who would discover some appropriate flaw in the distasteful match and cancel it. But not invariably! Pope Clement VII refused to dissolve the marriage of King Henry VIII of England to Catherine of Aragon, and in the ensuing hurricane of royal wrath the Church of England was born.
The new church, as might well have been expected, at first looked rather tolerantly on divorce. But it insisted that only religious authorities could unite and divide couples in marriage, a point of view sharply challenged by the Puritan radicals of the seventeenth century. John Milton, the mighty bard of Puritanism, not only took the position that divorce was entirely the province of the state (in a pamphlet entitled The Doctrine and Discipline of Divorce, Restored to the good of both Sexes from the Bondage of Canon Law and other Mistakes ), but he also suggested that the grounds be broadened. They should include any “contrariety of mind” hindering “the main benefits of conjugal society, which are solace and peace,” because, the author of Paradise Lost declared, the true object of a Christian marriage was not “to grind in the mill of an undelighted and servile copulation.”
When the Puritan Revolution in England ended with the restoration of the monarchy in 1660, the Anglican Church not only rejected this view but hardened its own divorce stand. It granted some bed-and-board divorces, but gave no annulments. The only way for an Englishman to get an absolute divorce was by a special act of Parliament, which would not even consider the case unless he already had an ecclesiastical bed-and-board separation. It was no wonder that between 1700 and 1850 only 229 wealthy, patient, and convincing British subjects achieved such final dissolutions.
The North American colonies felt the effects of this conflict in the mother country. Puritan Massachusetts sturdily insisted that marriage and divorce were civil matters, permitted only justices of the peace to perform marriages until 1692, and granted some forty divorces prior to that date (when a new charter cut down on Massachusetts’ independence). Some of these divorces were given by the legislature, in imitation of Parliament presumably; some by a special court. The first one recorded was given in 1639 to the spouse of James Luxford, for the compelling reason that he was proved to have another living wife. Grounds for other divorces granted later were adultery, desertion, impotence, incest, and a—heartbreaking reality among a seafaring people—long absence with presumption of death. Connecticut and Rhode Island also dispensed legislative divorces before the Revolution on similar grounds Little Plymouth (where the Pilgrim Fathers landed) produced an unusual divorce case when William Tubbs, carried away by veneration for the Old Testament, tried to divorce his wife in terms authorized in Deuteronomy 24:1. (“When a man hath taken a wife, and … she find no favour in his eyes … then let him write her a bill of divorcement, and give it in her hand, and send her out of his house.”) Tubbs handed Mrs. Tubbs such a “bill,” prepared by himself and signed by witnesses. It was disallowed by the authorities, but his case must have been impressive, for they granted him a more judicially defensible regular divorce.
In the southern colonies, however, where the influence of the Church of England was strong, marriage remained the monopoly of Anglican ministers. Divorces could only be granted by bishops’ courts; but since no such courts sat in the colonies, there simply were no divorces.
Thus, from the beginning, America had more than one set of rules for untying the marital knot. And, ironically, it was possible to do so in allegedly grim, Puritan New England but not in Virginia or the Carolinas, supposedly the land of the pleasure-loving descendants of the Cavaliers.