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Till Divorce Do Us Part
It has been with us since Plymouth Colony. But that’s not why it’s an American institution.
November 2000 | Volume 51, Issue 7
What the South saw as a solution to the problem of marital discord, the North viewed as a recipe for social disaster. The only evil more disruptive to society than an unhappy marriage was the solitary potential sinner it left in its wake. In many New England communities there were laws against “the solitary vice” of living alone. Massachusetts convicted John Eittleale of “lay[ing] in a house by himself contrary to the law of the country” and fined Mary Drury for “leaving the fellowship of her husband.” Therefore, certain seventeenth-century settlers, Cotton Mather among them, foreshadowing nineteenth- and twentieth-century sociologists, viewed divorce as a safety valve. In the latter centuries, the emphasis would be on personal fulfillment, in the seventeenth and eighteenth on social cohesiveness, but the idea that an individual’s happiness contributes to the common good was clearly new. Divorce would punish and perhaps banish the guilty spouse and set the innocent free to find another provider or helpmeet, and to procreate. The last ranked high among colonial concerns. In 1769 the governor of New York looked longingly at the superior population growth of New England, which had a less restrictive divorce law.
The New England colonies were not, however, a hotbed of low morals and lascivious behavior, any more than the South was a haven for happy marriages. When government outlawed divorce, and sometimes even when it didn’t, a resourceful people in an infant country found alternatives. Vast spaces, primitive means of communication, and no Social Security numbers made desertion as easy then as no-fault divorce is today. Newspapers ran notices: REWARD—RUNAWAY WIFE . Bigamy, the occasional wife sale, and murder were other early do-it-yourself methods of breaking marital bonds.
Colonial America was, of course, a crazy quilt of laws, and the grounds for, as well as the possibility of, divorce varied from place to place. In Massachusetts Bay after 1629, if either spouse deserted, the other could sue, but when it came to adultery, only a wife’s transgression provided cause. Mobility made bigamy, like desertion, common, and in 1680 Elizabeth Stevens divorced her husband in the Plymouth Colony for having wives in Boston, Barbados, and an unspecified English village. Most colonies that permitted divorce recognized impotence as just cause, and here the New World took a step toward what might be called the professionalization of divorce. In seeking physiological evidence of non-consummation, an old English statute appointed “seven honest women” to labor diligently over the accused, but New York required examination by surgeons.
The notes Jefferson prepared for a bill of divorce foreshadow the document he drafted a few years later to dissolve the American colonies’ bonds with England.
As the colonies inched closer to revolution, divorce, once an instrument of cohesion, became an overture to independence. In 1772 Dr. James Blair, whose marriage had never been consummated, retained Thomas Jefferson to represent him in the event that Mrs. Blair sued. Dr. Blair died before any action was brought, but the notes Jefferson prepared for a bill of divorce foreshadow the document he drafted a few years later to dissolve the colonies’ bonds with Great Britain. “Cruel to continue by violence an union made at first by mutual love, but now dissolved by hatred,” Jefferson wrote. “End of marriage is Propagation & Happiness. Where can be neither, should be dissolved.” Could the Declaration’s “consent of the governed” and “the Right of the People to alter or abolish” be far behind?
Divorce was not only a prelude to America’s independence but a contributing cause of it. In 1773 the British crown forbade all royal governors to assent to any bills of divorce of “persons joined together in Holy Marriage.” The order wasn’t as galling as a new tax, but it raised colonial hackles a little higher. In no time, revolution and divorce were on intimate terms. Men and women bringing marital petitions began using terms like tyranny, misrule, injustice , and happiness of the individual . America had discovered independence with a vengeance.
The trend continued as the country expanded. Men, and women, were striking out for new territory. Sometimes a spouse didn’t want to go. Individuals were re-inventing themselves. Sometimes a husband or wife didn’t want to take a spouse along. Cohesion had been necessary in the fledgling colonies, but the Republic was a free and freewheeling nation, dedicated to happiness as well as liberty.
Indeed, many who inveighed against the burgeoning divorce rate believed the culprit was the particularly American infatuation with individualism. In 1852, the New York Tribune editor, Horace Greeley, deplored “the right of every man to do pretty nearly as he pleases” as the chief cause of divorce and warned of “a general profligacy and corruption such as this country has never known.” Moreover, Greeley argued, most married people were happy precisely because they assumed they were bound for life. In other words, it was the scent of freedom that aroused dissatisfaction.