Divorce… Early American Style

{When it required an Act of the Assembly}

   Marriage is supposed to last forever, but from time to time there have been couples who simply cannot "make a go" of it; the marriage that might have started out wonderfully and full of promise just does not work out. The unfortunate couple have to make a decision of whether to stay married and try to work things out or to obtain a divorce and go their separate ways. The reason for the divorce, be it unfaithfulness on the part of one of the partners, a need to escape an abusive situation or simply the acceptance that the love that brought the couple together no longer exists, is not the subject of this article. My intention is to explain and illustrate the way that divorce was viewed and handled in the early days of our nation's existence.

   In the 17th Century a marriage could be annulled and divorce granted in cases where either partner committed adultery and fled from the reach of the law. The "law" usually dictated that the adulterer (or adulteresse) was to be put to death. The Capitall Laws of the New Haven Colony in the 1650s stated that "If any marryed person proved an adulterer, or adulteresse, shall by flight, or otherwise, so withdraw or keep out of the jurisdiction, that the course of justice...cannot proceed to due execution...a separation or divorce...shall be granted, ...an the innocent party shall in such case have liberty to marry again..." Therefore, if the unfaithful spouse should be able to elude the authorities and escape, the court system adjudged the victimized partner to be legally free to remarry as if the unfaithful spouse had actually been executed.

   Another situation that the courts would consider for granting a divorce was the inability for a marriage to be sexually consummated. The New Haven Colony's laws stated that "If any man marrying a woman fit to bear children, or needing and requiring conjugall duty, and due benevolence from her husband, it be found...and satisfyingly proved, that the husband, neither at the time of marriage, nor since, hath been...like to be able to perform the same...such marriage shall...be declared voyd, and a nullity..." The New Haven Colony laws further noted that if a husband knew when he had married that he would be unable to fulfill his marital duties, he could be fined by the court to the extent that satisfaction would be made to the woman injured by his deceitfulness. The law firmly cautioned that if the inability of the husband to perform his marital duties arose from a disability received after the marriage had been enterred into, he would not be subject to any fine.

   In the early 1700s A New Law Dictionary was published by Giles Jacob. The fifth edition of that book, printed in London in the year 1744, gives the following as a definition of divorce.

"Divorce, (Divortium,   Divertendo) Is a Separation of two, de facto married together, made by Law: It is a Judgement Spiritual; and therefore if there be Occasion, it ought to be reversed in the Spiritual Court. And besides Sentence of Divorce; in the old Law, the Woman divorced was to have of her Husband a Writing called a Bill of Divorce, which was to this Effect, viz. I Promise that hereafter I will lay no Claim to Thee, &c. There are many Divorces, mentioned in our Books; ...But the usual Divorces are only of two Kinds, i.e.   Mensa & Thoro, from Bed and Board, and Vinculo Matrimonii, from the very Bond of Marriage. A Divorce Mensa & Thoro, dissolveth not the Marriage; for the Cause of it is subsequent to the Marriage, and supposes the Marriage to be lawful: This Divorce may be by Reason of Adultery in either of the Parties, for Cruelty of the Husband, &c. And as it doth not dissolve the Marriage, so it doth not debar the Woman of her Dower; or bastardize the Issue; or make void any Estate for the Life of the Husband and Wife, &c. ...A Divorce Vinculo Matrimonii, absolutely dissolves the Marriage, and makes it void from the Beginning, the Causes of it being precendent to the Marriage... On this Divorce Dower is gone; and if by Reason of Pr‘contract, Consanguinity, or Affinity, the Children begotten between them are Bastards. But in these divorces, the Wife 'tis said shall receive all again that she brought with her, because the Nullity of the Marriage arises thro' some Impediment; and the Goods of the Wife were given for her Advancement in Marriage, which now ceaseth..."

   In the early years of the Province State of Pennsylvania the laws regarding divorce were included in the Acts of the General Assembly. The General Assembly was the supreme lawmaking body for the province of Pennsylvania, and as such, it was endowed with the power and responsibility to administer justice. From the outset of the establishment of the colony, the General Assembly was granted the privilege to form a body of laws (derived from those created in England) which would be intended to maintain law and order within the province. The General Assembly, therefore was, at the beginning, primarily a voicebox in the province for the laws of England. Over the years, the General Assembly of the Province of Pennsylvania, like those assemblies of the other provinces and colonies, began to acquire more autonomy. The General Assembly of the Province of Pennsylvania was given the privilege to interpret rather than simply relay the various laws and either pass or repeal them as they saw fit for the benefit of the province. In the early part of the 18th Century the General Assembly took the initiative to invest some of its own powers and duties in judiciary bodies within the various counties. Each county within the Province was granted the right to establish Courts of Judicature within their regions according to an Act of the General Assembly which was passed on 22 May, 1722. In that Act a Supreme Court was established and, despite the fact that the County Courts were granted jurisdiction over many things, including divorce, the Supreme Court continued to function as the primary authority to decide upon divorce requests. Thusly, if records of early divorces are to be found, they will more than likely be found in the Acts of the General Assembly of the Province State of Pennsylvania rather than in the records of the regional County Courts.

   The following are transcripts taken from the published Laws of the Commonwealth of Pennsylvania, of which I possess copies.

   The first Act to be recorded by which a divorce was legalized within the Province of Pennsylvania was passed on 18 February, 1769. Recorded in Volume V of the Acts of the General Assembly, on page 312, the Act was directed "to dissolve the marriage of Curtis Grubb, of the county of Lancaster, iron master, with Ann his wife, late Ann Few, and to enable him to marry again." The wording of the Act did not include the reason for the divorce request. It might be assumed, though, that Ann had been unfaithful to Curtis because he was the one for whom the divorce was granted "to enable him to marry again."

   The next divorce proceeding to be decided by the General Assembly was passed on 21 March, 1772 as "An ACT to dissolve the marriage of George Kehmle, of the city of Philadelphia, barber, with Elizabeth his wife, late Elizabeth Miller, and to enable him to marry again." It is interesting to note that this Act was repealed at a later date.

   An Act was passed on 08 October, 1779 "for dissolving the marriage of James Martin with Elizabeth his wife."

   On 09 March, 1781 "An ACT to dissolve the marriage of Giles Hicks with his wife Hester Hicks, late Hester McDaniel." was passed.

   The next divorce proceeding was enacted during the October sessions of the Assembly. On the 1 of October, 1781 a Private Act was passed "to dissolve the marriage of Jacob Billmeyer with his wife Mary Billmeyer, late Mary Eichelberger."

(Note: I do not possess a copy of the Laws of Pennsylvania covering the years 1782 to 1784, and therefore cannot supply information on divorces granted by the General Assembly during those three years.)

   Following the Revolutionary War, the marriage between Nathaniel Irwin and his wife, Martha was dissolved by the General Assembly of the State of Pennsylvania on 17 February, 1785.

   An Act passed on 30 March, 1785 was directed "to dissolve the marriage of Henry Willis with Mary his wife."

   The General Assembly of the State of Pennsylvania passed an Act on 18 September, 1785, titled "An ACT concerning divorces and alimony", in which the rules governing the handling of divorces were updated and, in some cases, slightly changed. The power to administer justice in such cases was removed from the General Assembly and vested solely in the Justices of the Supreme Court of the Commonwealth of Pennsylvania. The person or persons wishing to obtain a divorce were instructed to petition the Justices of the Supreme Court by way of a Justice of the Common Pleas (or a Justice of the Peace) of the county in which the petitioner resided. From that point onward the divorce requests were not handled as Acts of the General Assembly, and can be found in the records of each county's Court of Common Pleas.