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Divorce has become one of the most widely discussed issues in America.
In this innovative exploration of the phenomenon of divorce in American society, Norma Basch uses a variety of analytic perspectives to enrich our understanding of the meaning of divorce during the formative years of both the nation and its law, roughly 1770 to 1870. She provides a fascinating, thoughtful look at divorce as a legal action, as an individual experience, and as a cultural symbol in its era of institutionalization and traces the powerful legacy of the first American divorce experiences for us today.
Using a unique methodology, Basch fragments her story into three discrete but chronologically overlapping perspectives.
In Part I, "Rules," she analyzes the changing legal and legislative aspects of divorce and the public response to them. Part II, "Mediations," focuses on individual cases and presents a close-up analysis of the way ordinary women and men tested the law in the courts. And Part III, "Representations," charts the spiraling imagery of divorce through various fiction and non-fiction narratives that made their way into American popular culture during the nineteenth century.
The composite picture that emerges in Framing American Divorce is a vividly untidy one that exposes the gulf between legal and moral abstractions and everyday practices. Divorce, Basch argues, was always a focal point of conflict between the autonomy of women and the authority of men. Tracing the legal, social, and cultural experience of divorce allows Basch to provide a searching exploration of the limits of nineteenth-century ideals of domesticity, romantic love, and marriage, and their legacy for us today. She brings her findings up-to-date with a provocative discussion of the current debate over fault or no-fault divorce.
In 1787 Sarah Everitt petitioned the Court of Chancery for a divorce from her husband William, a New York City butcher to whom she had been married for twenty-two years. The uncontested suit was a simple one with regard to the circumstances of her marriage, which had come to an informal end well before the suit began. The couple's two sons, one a fifteen-year-old apprenticed to a butcher and no longer living at home, the other a thirteen-year-old about to follow in his brother's footsteps, were not a factor in the case, and William, who had previously "absented himself," in the words of the court, from Sarah's "bed and society," was propertyless and insolvent. As a result, the sole purpose in undertaking the action was to bring a legal end to a marriage that was long since over.1
The adjudication of the case was swift. Custody, support, and property were not at issue, and neither was the proof of William's adultery. Among the witnesses who came to court was a woman named Mary Moncrief, who not only admitted to living with William in an ongoing state of adultery but who also testified to having a son with him. William, itseems, had embarked on a second union with Mary and was raising a second family while he was bound by law to his first union with Sarah and to the obligations of his first family. In October of 1787, not long after the Constitutional Convention had concluded its affairs in Philadelphia, the court brought his union with Sarah to an official and unequivocal end. Given the redundancy of the decree, there could be nomistaking its finality. The marriage was "entirely and absolutely dissolved and declared to be null and void."2
The Everitt case only begins to suggest the world of meanings encapsulated in the legitimation of divorce. Adjudicated in the year the State of New York passed its first divorce statute and the federal constitution was drafted, it not only highlights a chronological convergence between the legal reordering of marriage as a social institution and the political reordering of the society at large, but also points to the possibility of deeper connections between these changes. Furthermore, because the case embodied both legal and extralegal forms of marital dissolution, it alerts us to the diverse ways in which Americans of the post-Revolutionary era both conceived of and acted on divorce.3 At the same time, the roles played by the parties in this classic but untidy human triangle exemplify the transition already under way. Cast by the law into a sharply adversarial configuration, with Mary set off to the side as a witness, husband and wife were presented in the end with an orderly legal resolution.
Other resolutions were possible. As William's apparently unilateral arrangements indicate, putting an end to a marriage in the early republic did not hinge on the statutory recognition of divorce. Extralegal and customary alternatives filled the void in divorceless jurisdictions, and they continued to flourish alongside the law in jurisdictions that provided for divorce.4 But if William's simple strategy of self-divorce and pseudo-remarriage was undoubtedly familiar to his contemporaries, the remedy now available to Sarah was something of a novelty. Moreover, if we use William's occupation as the measure of Sarah's social standing, we are bound to be struck by the broadly democratic thrust of the state's earliest divorce provisions. One of the first plaintiffs in the state to sue under the rules of the new statute was the wife of an obscure and impoverished tradesman.
The Everitt divorce serves as a fitting frame, then, for basic questions about the new rules. How did the state come to legitimate the dissolution of Sarah Everitt's marriage? And how did Sarah Everitt, in turn, come to submit her marital difficulties to the disposition of the state?5 Although these open-ended and interrelated questions about political motivation and individual agency do not lend themselves to conclusive answers, they are nonetheless worth raising, not so much because of the quantitative place divorce would assume in the long run as because of its qualitative place in the context of the late eighteenth century. Moreover, linked as they are to the interplay of the social contract and themarriage contract, they invite us to explore the striking convergence of revolution and divorce in the last quarter of the eighteenth century.
The United States was not alone in recognizing divorce in the age of revolution, a time when the sources of legitimate authority were directly contested and indelibly transformed. The first French Republic, which went from upholding the complete indissolubility of marriage to instituting the most permissive divorce code in the Western world, provides a stellar example of the late-eighteenth-century confluence of revolution and divorce. In France even more conclusively than in the United States, the right to put an end to an unsatisfactory union was an integral part of the revolutionary order, a legal component of the quest for individual fulfillment through a reconfiguration of the family. As the deputy Pierre-Frangois Gossin argued in the National Constituent Assembly, "After having made man again free and happy in public life, it remains for you to assure his liberty and happiness in private life."6
In light of Gossin's distinctions between public and private life, we can assume that man in this case encompassed woman as well. Perhaps, as Joan Landes has argued, the transition from French absolutism to a bourgeois, secular state entailed the silencing of women in the public sphere; but endowing them with the right of divorce empowered them at least symbolically in the private sphere. Petitions to legislatures in the early years of the Revolution indicate that divorce was routinely construed as a wife's legal counterweight to her husband's conjugal authority. The notion that the right of divorce for both wives and husbands was a fundamental freedom that flowed from the new political order resulted in the divorce law of 1792. Not only did that remarkable but short-lived law provide for divorce with the mutual consent of both spouses, but in a provision akin to the no-fault statutes of our own day, one spouse could petition unilaterally on the ground of incompatibility and receive a decree without producing affidavits or witnesses.7
The terms on which Americans recognized divorce were rather more modest and, as a result of state-by-state variations, somewhat eclectic. Still, the impress of the Revolution was unmistakable. No sooner, it seems, did Americans create a rationale for dissolving the bonds of empire than they set about creating rules for dissolving the bonds of matrimony. Divorce, of course, had been available in New England before the advent of independence; Connecticut had provided for it on such liberal termsthat it granted almost a thousand decrees between 1670 and 1799.8 By comparison, those states that relegated divorce to a legislative decision after the Revolution instituted a highly restrictive divorce policy. And yet even in such restrictive jurisdictions, a complete divorce with the concomitant right to remarry became a legal possibility for the first time. Though American divorce policy paled before the robust liberality of its French counterpart, it assumed much more radical dimensions in an Anglo-American context. By 1800 fault divorce, as we have come to call it in our era of no-fault, was a legal concept that departed significantly from the parliamentary and ecclesiastical precedents on which it was based. In its gender-neutral approach to fault, in the completeness of its dissolutions, and in the access it afforded litigants, American divorce already diverged dramatically from its principal English roots.
The timing of this development was as telling as its substance. Concern with providing for formal divorce arose simultaneously with the political turmoil of the 1770s. With the notable exception of the Puritan jurisdictions, Britain's North American colonies did not challenge English divorce policy in any collective or sustained way until that time, nor did England attend to those challenges that were in fact made. Throughout the colonial period, the balance of the colonies probably sent no more than a handful of provincial divorce bills across the Atlantic, and these (together with the wholesale disregard of the English rules by both Connecticut and Massachusetts) were largely ignored in the affairs of empire. As Linda Kerber has observed, the Privy Council exhibited an almost studied ignorance on the subject of colonial divorces.9 As late as 1769, a barrister representing the Board of Trade and Plantations declared the Pennsylvania legislative divorce of Curtis and Anne Grubb to be "not repugnant to the Laws of England."10 But confronted by a similar Pennsylvania decree three years later, the board found that it represented a dangerous power "rarely and recently assumed in your Majesty's colonies in America." An extended ruling by the Privy Council in 1773 designated "Acts of Divorce in the Plantations" as "either Improper or Unconstitutional." Subsequent divorce bills from New Hampshire and New Jersey were also disallowed and reported to the Privy Council, which instructed colonial governors to void all future provincial divorces.11
Thomas Jefferson, a proponent of legitimating divorce, may very well have had this prohibition in mind when he drafted the section of the Declaration of Independence denouncing the British monarchy's refusal to "Assent to Laws, the most wholesome and necessary for the public good." More important, his notes supporting divorce anticipated the rationalehe employed to justify independence: "No partnership," he declared, "can oblige continuance in contradiction to its end and design." In one sense, the right to end an adverse marital partnership was a direct byproduct of the frustration experienced under an adverse political partnership, for in the wake of independence, those colonies that had been overruled by the Privy Council provided for divorce in new state statutes. Other states followed suit. By 1795 a disaffected spouse could put an end to a marriage in a local circuit court even in the Northwest Territory. Titled "A Law respecting Divorce, Adopted from the Massachusetts code," the simple territorial statute providing for that right highlights the flow of divorce westward with the settlers who spilled over the Appalachians. "Divorces shall be decreed," it declared, "where either of the parties had a former wife or husband alive, at the time of solemnizing the second marriage; or impotency or adultery in either of the parties."12
Although the states carved out of the Northwest Territory would eventually expand their statutory grounds to encompass desertion and cruelty, New York continued to adhere to terms very close to those in the territorial statute. Clearly, statutory provisions could vary widely. If the South tended to lag behind the North both in recognizing divorce and in placing it within the jurisdiction of the civil courts, east-west distinctions became even more pronounced, with "western" states tending to render divorce more readily accessible to their restless new inhabitants. This was true even for the post-Revolutionary South. Whereas South Carolina eschewed divorce altogether, the first Tennessee divorce statute provided for adjudication in the state's superior courts; and in addition to adultery and the traditional grounds for annulment, it recognized willful desertion or two years' absence without a reasonable cause.13 Far more significant than the divergent terms that were being spelled out in state statutes was the wholesale legitimation of divorce itself, especially in those areas that had been officially divorceless. By 1799 twelve states in addition to the Northwest Territory had recognized the legal right of divorce, thereby indelibly imprinting the new rules all over the American legal landscape.
Little attention has been devoted to this quiet but profound transformation. The stunning nature of this legal departure is best appreciated when balanced against late-eighteenth-century English practices. In England female plaintiffs, who were required to prove aggravated adultery (adultery compounded with some other marital offense such as physical cruelty), were all but shut out of the divorce process except for formal separations. Of the 325 complete divorces that Parliament granted between 1670 and the legal reforms of 1857, only four went towomen. Inasmuch as a decree permitting the complainant to remarry, as opposed to a divorce from bed and board, depended on securing a private bill from Parliament, men hardly fared much better. In order to secure such a decree a male plaintiff would need to begin with a suit for damages against his wife's paramour in the civil courts, follow it with a suit for separation in the ecclesiastical courts, and then pursue it to completion in Parliament. In contrast to the speedy decree issued to Sarah Everitt, the New York butcher's wife with whom we began, a complete divorce in England was an option for very privileged, very determined, and very patient men who nevertheless had to be prepared for failure at any point in the process.14
From both a substantive and procedural perspective, divorce law in the early republic was light years beyond its English equivalent. Moreover, despite striking variations in the particularities of early divorce provisions, there were broad commonalities in the fundamentals, and it is the fundamentals that concern us here. Shared notions about divorce were embedded in three dominant strands of early national culture: an essentially Protestant view of the moral order, a distinctly English legal heritage, and the indigenous political culture of the American Revolution. These three great currents of thought—three discrete ways of looking at the world in general and the conjugal in particular—were by no means prerequisites for the mounting of divorce as a legal institution, nor did they always flow together harmoniously. But their convergence in the United States in the last quarter of the eighteenth century determined the course of American divorce and shaped its internal tensions. That particular historical conjunction ensured that the moral premises for divorce would emanate from the New Testament, the forms for its implementation from the English ecclesiastical courts, and the political foundations for its legitimation from the singular experience of independence itself. Because independence was the catalyst in the process, the event separating English legal traditions from American innovations, it merits particular consideration.
From the Bonds of Empire to the Bonds of Matrimony
At a tangible political level, independence freed the states to depart from English law, which had channeled divorce along a path so costly and tortuous as to render England virtually divorceless. But that account still begs the question of why states departed from English law in the firstplace. When viewed instead at a symbolic level, independence looms as a compelling prototype for divorce, and nowhere more than in its most celebrated text. Consider that in letting the "Facts" be submitted to a candid world, the Declaration of Independence at once explained, decreed, and sanctified a divorce from the bonds of empire; and from the bonds of empire to the bonds of matrimony, it was but a short conceptual step.15
The principle of comparability that structured eighteenth-century concepts of knowledge only served to enhance the time-honored association of family with state and vice versa. As Natalie Davis has observed of early modern France, all the weighty and contentious issues in the larger political order could invariably be symbolized "in the little world of the family." Reversing the order of the analogy in The Social Contract, Rousseau asserted that families are the first models of political societies.16 Placed in the Anglo-American setting, this common maxim of Western political theory acquired a new and expansive meaning. Jefferson's use of words such as brethren, consanguinity, and kindred in the Declaration not only exemplifies the easy interchangeability of family and state in Enlightenment thinking but also marks their transfiguration. His language implies that severing the bonds of empire entailed the radical and complete separation of two peoples who were as intimately related as the members of one family. That family, to paraphrase the end of the Declaration, was no more, and the two peoples, once knitted together as one, were to regard each other now as enemies in the war that was already under way. As this imagery suggests, the Revolution predisposed Americans to think of themselves in declaring independence as both dissolving one family and, at the same time, constituting another. The significance of that image is even greater than has been generally recognized. The Revolution not only killed the king, metaphorically speaking; it separated the family.
Admittedly, Jefferson's allusion seems to conjure up a schism between male kinfolk. Still, for Americans of the Revolutionary era, the image of the severed family could extend beyond filial and fraternal bonds to embrace marital bonds as well. As Carole Pateman has observed, the relation of a husband to his wife was as central to seventeenth-century English debate over the political order as was the relation of the king to his subjects. This symbolic legacy from the English Civil War was very familiar to Jefferson and his contemporaries. Framing the schism between Great Britain and its North American colonies as a divorce, moreover, is instructive on two counts: it highlights the interplay between the socialcontract and the marriage contract and it exposes the role of gender in Revolutionary culture. Pateman cautions that to consider social contract theory without considering the marriage contract, or what she calls "the sexual contract," is to suppress the gendered part of the story of contract.17 In keeping with her caveat, the Revolutionary deployment of the familial paradigm merits a reading in conjugal terms.
Although a host of scholars have elaborated on the antipatriarchal dimensions of Revolutionary culture, they have focused largely on the filial ramifications of killing the king. Historians have noted that whereas a tyrannical parent-child relationship supported the logic of American rebellion, the bonds of filial affection came to exemplify the post-Revolutionary ideal of union. To be sure, apart from the obvious Freudian appeal of the killing-the-king paradigm, there is a good deal of cultural evidence to support it, as well as flesh-and-blood figures who embody it. It is not difficult to envision George Washington as a humane and virtuous post-Revolutionary father who came to replace the despotic figure of George III. But scholars exploring the centrality of consent in antipatriarchal representations of the republic have projected a more gendered reading of the post-Revolutionary transition by demonstrating that conjugal ties came to supplant filial ties in popular representations of the state. As Jan Lewis has shown, both the hopes and fears for the nation's political order were consistently dramatized in relations between the sexes. The happy and harmonious conjugal union of the brave husband and his chaste wife, she suggests, came to represent nothing less than the happy and harmonious political union of the young American republic.18
That the success of both unions hinged on the element of consent provides important clues to the legitimation of divorce, because it underscores its contractarian underpinnings. In a legal as well as a moral context, marriage derived its primary legitimacy from the principle of consent. In the prevailing legal construction of marriage, there could be no contract without consent; if consent were absent or compromised, the contract could be deemed null and void. Of course, in traditional legal terms, once the marriage was validly contracted then the contract was indissoluble, consent ceased to be a factor, and the equality that prevailed at the time the contract was made was effaced by the requirements of coverture. Marriage, after all, was a public, prepackaged contract that was impervious to the wills of the contracting parties.19 To put it in political terms, one could say that having contracted for her ruler, a wife was consigned to his rule for life. As will become evident, Americans of the post-Revolutionary era were not altogether comfortable with such animage, but neither were they prepared to abandon it completely. Both their discomfort with the traditional legal model of marriage and their reluctance to adopt a thoroughly contractual alternative illuminate the degree to which social contract theory intertwined with their perceptions of marriage and divorce.
Their dilemma was hardly new. It is precisely because marriage in its consensual-but-indissoluble form stood as a far-reaching metaphor for the existing political order that it served as a convenient hedge against incipient political upheavals. A common analogy for the relationship between rulers and the ruled, it was exploited by royalist defenders of Charles I to equate Parliament's rebellion with the ludicrous prospect of a wife divorcing her husband.20 Gender was obviously central to the effectiveness of the analogy. The figurative use of a divorce by a woman to signify the anarchic breaking of a sacred contract, thereby subjecting the action to ridicule, intimates that domestic rebellion enjoyed less credibility than political rebellion. But it also reveals parallels between the two rebellions in the very grain of Anglo-American political thinking. The advent of the American Revolution turned the thrust of the analogy on its head, for just as divorce could serve to discountenance revolution, revolution, especially a successful one, could serve in turn to legitimate divorce.
The act of legitimating divorce is clearly not the same as the act of legitimating revolution: to assert that it is would be inherently reductive and demonstrably wrong. But since the effectiveness of a metaphor emanates, in a sense, from its wrongness—that is, from its capacity to conflate widely disparate actions into a simple, unitary framework—the correspondences between revolution and divorce could be manipulated into powerful analogies. As ethnographers have long known, charting patterns in such analogies in a specific time and place can help expose a culture's fundamental premises and underlying tensions. Or to put it another way, as Lynn Hunt has demonstrated, recognizing the importance of the family in constituting the political order provides a window on the "collective political unconscious."21
It is useful, then, to pursue the correspondences between revolution and divorce in the context of Revolutionary culture. Consider the problem of justification. The framework for a just divorce code, like the juristic rationale for national independence, would need to stipulate under what extraordinary circumstances and for what grievous offenses a dissolution of the contract might take place. It would pivot, also, on an agonizing dilemma: how to dissolve those contracts that had been so seriously violated as to destroy the ends of marriage (the Everitts' marriage presents a good example) without at the same time destroying marriage itself. For Jefferson's contemporaries, the Revolution posed a comparable dilemma: how to dissolve their connections to a legitimate but despotic government without, in the words of an English critic, at the same time putting "the axe to the root of all government."22
One solution, as Gordon Wood has observed, was derived from the notion of breach of contract. It consisted in delegitimizing the contract with the duly constituted government by documenting the nature, intensity, and duration of its despotism. Breach of contract, however, was not the only legal construction that suggests striking parallels between declaring political independence and justifying divorce. Equity was another, and it supplied an important modification to the relatively crude concept of breach of contract. Following J. W. Gough's analysis of Locke, Peter Hoffer has argued that both the sequential pattern and the conceptual structures on which the Declaration is modeled were derived from a bill in equity, a form that Jefferson as a Virginia lawyer would have drawn on with some regularity. All the complaints at the core of the Declaration, Hoffer insists, "showed their equitable origins, fitting categories familiar in chancery." Because Hoffer, like Gough, depicts the relationship between the governed and their governors more as a trusteeship that has been violated than as a contract that has been breached, he locates the Declaration's appeal squarely within the purview of the protective and discretionary sorts of justice meted out by a court of chancery.23
Marriage, by analogy, could assume the hierarchical characteristics of a trusteeship in which the husband acted as the wife's trustee but could be held accountable for his actions in a court of equity. It is worth noting that given the absence of ecclesiastical courts, divorce in America began as a proceeding in equity in those jurisdictions that maintained a distinction between law and equity. Of course, equity was itself an integral part of the inherited legal system, but it was distinguished, as Hoffer points out, by its distinctly remedial dimensions. Thus divorce entered American jurisprudence with a set of procedures that translated a suit to dissolve a marriage into a quest for a remedy that was not ordinarily available. Accordingly, after spelling out a list of harrowing abuses suffered at the hands of the allegedly guilty spouse, a divorce petitioner typically concluded with a prayer for relief—an appeal, if you will, to a higher and more flexible form of justice not unlike that invoked in the Declaration.
In a variety of ways, then, the Declaration of Independence endowed the women and men of the Revolutionary era with an elegant and eloquent example of how to dissolve a sacred contract. Resting as it did on its purported proof of English despotism counterpoised against colonial innocence, its argument unfolded very much like that of a petitioner in a divorce suit who, lacking a standardized form, piled up and compounded the alleged causes regardless of the statutory grounds. Sacred contracts are not dissolved casually, and the long and arduous route to the decisive stage of separation, ran the argument in the Declaration, was determined by the respondent's cumulative and unremitting guilt. In unmistakably Lockean language, the Declaration averred that severing the bonds of empire was not undertaken for light and transient causes, but only in the wake of a long train of abuses and usurpations to which the petitioner had submitted patiently. So intense and sustained were these abuses, went the narrative, that it was not just the right but the duty of the petitioner to seek a formal dissolution of the union.
The juristic language, the familiar truths, the judicious caveats, the assembled facts—none of these could obviate fully the unbounded possibilities that lay at the heart of the Declaration, which was shaped, after all, so as to justify the right to begin all over again. As Carl Becker long ago observed, the classic philosophy in the Declaration would lose ground in the nineteenth century precisely because it had been used with such stunning success in the eighteenth and might be so used again in ever more radical causes.24 Yet if fear of endless dissolutions and countless reconstitutions ran just below the surface of post-Revolutionary culture, thereby posing a threat to the legal recognition of divorce, it was assuaged by an abiding faith in the justness of the Revolution.
The connections between the political ideology of a just revolution and the liberating potential of a just divorce code were strong, durable, and deeply rooted; the American Revolution only served to strengthen them further. It is no accident that John Milton wrote his divorce tracts in the midst of the English Civil War, tying the freedom to divorce to "all hope of true Reformation of the state." Nor should we be surprised that reference to the incompatibility between a contractarian theory of government and the principle of indissoluble marriage can be found in John Locke's Second Treatise of Government . In the wake of American independence, moreover, at least one wife expressed the belief that the Revolution had directly empowered her to reject a despotic husband. When Abigail Strong petitioned for a divorce in Connecticut in 1788,she reasoned that she was no longer under any obligation to submit to her husband's authority, since "even Kings may forfeit or discharge the allegiance of their Subjects." And when the nineteenth-century spiritualist leader Andrew Jackson Davis advocated greater equality in marriage, he linked his vision of an ideal union to the freedom from tyranny delineated in the "covenant . . . signed by the brave Fathers of our republic and sealed by the heart's blood of Patriots and Heroes." The Declaration of Independence, he insisted, was as "sacred still as the testament of a new-born savior."25
The same intellectual premises that supported the right of revolution predisposed Americans to support the right of divorce. Nonetheless, since few sources were as explicit as Abigail Strong's politically charged petition against conjugal tyranny, it is far easier to chart the connections between revolution and divorce at a high level of abstraction than it is to understand their influence on ordinary people. At the same time, instituting the rules in any meaningful or comprehensive fashion depended on the willingness of wives and husbands to come before the law as plaintiffs. It is far from clear how the collective experience of revolution reshaped individual attitudes toward either law or marriage to create support for formal divorce. The persistence of customary alternatives to formal divorce may very well indicate that for countless Americans no such change occurred. Yet while we should not assume that divorcelessness in the pre-Revolutionary era meant that marriages stayed intact, neither should we deny that in complex ways that continue to elude us, independence set the stage for the acceptance of new forms of divorce. Old arrangements were rendered unsatisfactory if not, in fact, obsolete; this was true for litigants like Sarah Everitt as well as for jurists and legislators, although not necessarily for the same reasons.
Marriage and Divorce in Popular Literature
Glimpses of how Revolutionary ideology opened out to recast understandings about the social order in general and marriage in particular can be found in the burgeoning popular literature of the Revolutionary era. Eighteenth-century writers regarded the whole universe of knowledge and experience as a convenient repository of evidence to be used in treating social problems. Parables and limericks, essays and advice columns, novels and dramas—all expressly and self-consciously didactic—redefined the ends of marriage and, in so doing, approached theappropriate bases for divorce. As The Emigrants, a 1793 epistolary novel championing the right of divorce, put the case for proselytizing through fiction, "perhaps it is the most effectual way of communicating moral instruction, for when the vices and follies of the world are held up to us so connected with incidents which are interesting, it is most likely they will leave a more lasting impression than when given in a dull narrative."26
The range of moral instruction that informs this literature illuminates the connections between government and marriage at a distinctly anecdotal level. This is precisely the level where analogies between the social contract and the marriage contract were commonly deployed, where the issues of conjugal power and female subordination were directly confronted, and where the problems of how to constrain sexual unions in a democratic political context were regularly addressed. Insofar as much of this literature concentrated on distinguishing the truly harmonious unions from those that were spurious, uncaring, despotic, and mercenary, it focused in both a social and political sense on securing a more perfect union. Union, as Jay Fliegelman has observed, was the critical word in the Revolution and after, and liberty was equated regularly with the freedom to chose one's bond.27 Still, allusions to marriage invariably contrasted the hollow forms that chained an incompatible couple together with the silken bonds of mutual affection. Given the prevailing political assumption that some bonds could be legitimately dissolved, support for divorce was at least implicit and sometimes even explicit in the sharpness of the distinctions.
Few writers were as ardent in extolling the right to end an unhappy marriage as Tom Paine. Paine, who was separated from his wife and had personal experience of the constraints of English divorce law, dramatized the contrast between a loving and loveless union in a little fable about Cupid and Hymen in the Pennsylvania Magazine . In his tale, Cupid, the god of love, prevents Hymen, the clerk of matrimony, from legitimating a wedding of convenience in Arcadia, where marriages were always made of better stuff. Although Paine does not use the fable to advocate dispensing with Hymen's formal services, which would be tantamount to espousing free love, he wants their role to be regarded as subordinate to the affective contributions of Cupid. "'Tis my province to form the union, and yours to witness it," asserts Cupid, hero of the tale and Paine's avatar of marital values, and "besides you are such a dull fellow when I am not with you, that you poison the felicities of life." The message is clear. Hymen might "chain couples together like criminals," butthe only laws that ought to be binding on them were the universal "laws of affection."28
A few months later, assuming the persona of an American savage considering all the follies in a typical Christian marriage, Paine carried his theme of marital fulfillment to its logical conclusion. He alleged that not one in a hundred unions bore any relationship "to happiness or common sense," and without the freedom to end their unions, spouses simply doubled each other's misery "by way of revenge." Concluding with an innovative gloss on the union of Adam and Eve, Paine used the story to develop the claim that since God made us all in perfectly matched pairs, it was our duty to find the partner we were destined to have and to consummate the perfect partnership, presumably even if that took more than one try.29
Insofar as Adam and Eve were traditionally offered up as the embodiment of the one-flesh doctrine and hence as corroboration for God's support of indissoluble marriage, Paine's reading of Genesis was uncommonly bold. But although few contemporaries would venture as far as he did in advocating an open-ended quest for Edenic happiness in which the sons of Adam and the daughters of Eve were perennially free to seek the perfect partner, the theme of the perfect partnership was popular in more secular form. "On Marriage," for example, presented a handy neoclassical version in which Jupiter broke Androgyne, the perfect whole person, into two incomplete and unsatisfactory halves, leaving every man and woman thereafter with the need to find their other half. This bifurcated, essentialist version of the perfect partnership, which constructed women and men so profoundly different as to render them tragically incomplete on their own, serves to illustrate that gender differentiation was one of the important hallmarks of Revolutionary culture. At the same time, in projecting a complete complementarity between the sexes, it invested women as well as men with the need to search for the perfect partner. If we move away for the moment from reading gender as a metaphor for power—admittedly one of its most compelling rhetorical functions—we can see that this late-eighteenth-century rendition of the androgyne legend framed the perfect partnership in intimate and egalitarian terms.30
Intimate and egalitarian constructions of marriage were persistently qualified and inevitably undermined by references to order and subordination. For those who had already chosen their partners, practical advice on sustaining the partnership could be rendered in a distinctly political idiom that imbued men with a potential for tyranny and womenwith a penchant for rebellion. Men, declared an essayist for the Boston Magazine, should not be tyrants to women, because tyrants produce rebels, and rebels when they prevail become tyrants themselves. No one was better positioned to appreciate those sentiments than the members of the Revolutionary generation, who were preoccupied—if not obsessed—with redefining the relationship between the rulers and the ruled. Contract, however, was the basis for obedience as well as dissent, and men remained the rulers in the marriage contract, albeit with some limitations. Men should rule women, conceded a writer for the Columbian, but not with a "rod of iron." Another essayist counseled the husband to be not "a barbarian" to his wife just because he knows that she is his property, and the wife "to let thy gentle bosom be the pillow where all . . . cares may be forgot."31
In the face of unremitting despotism, however, dissolution of the union remained an option. As the cautious advice of the Matron, a columnist with a persona like that of Ann Landers, indicates, within the still-hierarchical relation of marriage, certain kinds of behavior went beyond the pale. Considering the problem of an innocent young bride who had contracted a venereal disease from her worldly husband, the Matron held out hope for the union only if he would confess and agree to be treated. But if he failed to accept blame for his wife's condition—or, even worse, accused her of infidelity—she advised the young woman to "summon up all her fortitude and leave him."32
Advice on appropriate conjugal behavior had its limits, for the ultimate fate of a marriage, according to popular counsel, was determined more by the choice of a mate than by any other single factor. That was the key to the perfect partnership and its most egalitarian component. Both sexes exercised freedom of choice here, and both staked their futures on making the right choice. Both, moreover, were susceptible to making tragic mistakes. Examples of those who had chosen foolishly, who had married for the wrong reasons, or who had simply misread the true character of a prospective partner punctuated the literature on marriage. "The Bad Effects of an Imprudent Matrimonial Connection" chronicled the fate of a woman who fell victim to a money-seeking libertine. The consequences of her mistake were devastating. Her profligate partner, who "had a taste for social company," expensive diversions, and the pleasures of the alehouse, and who showed very little inclination to hard work, squandered all her money and was never to be seen at her side.33
Profligacy and licentiousness, adultery and seduction, bigamy and desertion—these were the misbegotten fruits of the wrong choice, andpopular advice readily acknowledged that they could not always be avoided. One could enter into a union with a pure heart and with the best intentions only to be foiled by a deceitful spouse. And while the deceitful spouse went on his (only rarely her) merry way, the innocent spouse remained bound by law to the original union. The element of free choice that was so vital to a contractarian reading of marriage placed an extraordinary burden on a potential female partner. Of course, men too could be deceived, cuckolded, and deserted by a faulty partner, but the consequences were never quite the same. Addressing "The Directory of Love" in the Royal American, for example, John Jealous complained that after living for some time in wedded bliss, he found his wife with a gentleman in the most private part of the house. Although "a thousand methods for getting rid of this problem" occurred to him, he wanted to know which option to pursue.34 As his query suggests, men do not appear in this literature as desperate victims without real options. Women do, in part because of their social subordination to men and in part because marriage was the principal context in which they worked out their destinies.
Justice required a remedy for the wronged spouse, and the remedy was consistently construed as benefiting women as the victims of the double standard. As the author of the Emigrants averted in a long aside, "I have no doubt but that the many misfortunes which daily happen in domestic life, and which too often precipitate women of the most virtuous inclinations into the gulf of ruin, proceed from the great difficulty there is in England, of obtaining a divorce." A man, by contrast, had ways of escaping the confines of a miserable marriage. He was free to look "abroad for those amusements which alone can compensate for domestic feuds"; and should he transgress his marriage vows, no one would call him to account. But a woman seeking "some mitigation of sufferings" was destined to be "branded with contempt, and condemned to live in poverty, unnoticed and unpitied."35
Queries about how to proceed in untenable marriages flourished in the advice columns of popular periodicals, and although many undoubtedly came from the pens of creative editors, they demonstrate contemporary concern with the problem of failed marriages. "I am one of those unhappy young women," declared A.B., "whom fortune favoured with a husband; but not long after the conjugal rites were ended, he, void to all humanity, left me and went and married a second wife." The balance of the column focused on her right to remarry. She wanted to know: "As my husband married first, whether or no I can by law, marry afterwardsduring his life? . . . Or if it is a felony in the wife, then, was it not a felony in the husband first?"36
Court records exhibit no lack of real-life counterparts for A.B., nor is it difficult to understand their readiness to remarry without resorting to the law. Bigamy, like the second marriage of A.B.'s husband, and pseudo-marriage, a union not properly solemnized—like that of our old friend, William Everitt—were portrayed as tools employed by wicked men against innocent women to deceive them and ultimately destroy them. In Amelia; or, The Faithless Briton, pseudo-marriage was the source of a hoax perpetrated by a British officer who seduced and impregnated a young American girl by enticing her into a feigned marriage ceremony.37
The solution to these outrages lay in sharpening the boundaries around marriage. Blurred boundaries, commentators insisted, nourished the dangerous practice of self-divorce and illicit remarriage because they supported the deceptively simple notion that marriage was a private arrangement to be made and unmade at the will of the two parties. Traditional customs like the reading of the banns were encouraged not only because they buttressed the public character of marriage but also because they embodied the look-before-you-leap approach so popular in advice columns. And although settlements and antenuptial contracts were denounced as European refinements that reduced marriage to a crass business deal, premarital considerations that revolved around character rather than money supported both the affective and reciprocal aspects of the post-Revolutionary marital ideal.38
While the political rhetoric of independence helps us understand the inherent radicalism of divorce, post-Revolutionary critiques on blurred boundaries help us tease out its conservative impulses. In this new government of laws, rules providing for exit from the marriage contract were even more important in maintaining social order than those controlling entry. In the wake of revolution, the American legal system did, in fact, move toward both redefining marriage and defining divorce. But the terms on which these parallel movements evolved could not have been more different. Whereas American courts came to recognize a so-called common law marriage, a consummated union to which the parties had agreed, they were not about to recognize a comparable form of divorce. The former put the best face on an existing arrangement, legitimized children from the union, and brought the husband under the obligation of support; the latter menaced the entire institution of marriage.39
Supported as it was by the concept of breach of contract, divorce wasconstrued far more strictly than marriage. Contemporaries could not advocate statutory divorce by mutual consent, much less by unilateral decision, because the underlying justification for rescinding an innocent spouse's marriage promise hinged on the assumption that the reciprocal promise already had been broken by the guilty spouse. It is not that eighteenth-century moralists and jurists could not envision a world of no-fault; they could and they did, and it caused them no end of consternation. Fault, so crucial in popular accounts of failed marriages, was no less crucial in creating the rules for their dissolution. It was an integral part of a mental universe that pivoted on causative reasoning. Even the so-called omnibus clauses in early divorce statutes, catchall phrases that provided broad judicial discretion in decreeing divorces, assumed a fault that was too unique or elusive to be defined by statute, but that could be readily apprehended by the judiciary.40
This fundamental reliance on causative reasoning not only informed both the legal and moral contours of divorce from the early national period into the nineteenth century; it provided the rationale for legitimating divorce in the first place. As a 1788 pamphlet supporting the right of divorce alleged in ardently anticlerical terms, conscientious attention to causality would permit formal divorce to assume a reasonable middle ground between religious fanaticism on the one hand and runaway anarchy on the other. On the one extreme, argued the anonymous pamphleteer, there was the example of India, where burning the widow alive fulfilled the biblical admonition that what God has joined together should not be put asunder. Here was ample proof that in matters of great importance to the general welfare, a too-literal adherence to Scripture was folly. But at the other extreme, he conceded, there was need to address the danger that "one separation would make way for another like beasts, and their families and kindred would be unknown and unprovided for and their names and distinctions lost." Formal complaints with careful inquiry into the causes and with adequate provisions for children could counter such anarchic possibilities while alleviating individual suffering.41
Casual dissolutions were to be avoided at all costs. In the prescriptive literature of the period, statements favoring causeless divorce, as it was called, were likely to come from the lips of a libertine like Major Sanford, a character in Hannah Foster's popular novel The Coquette . "As we lived together without love," he reasoned, "we parted without regret." Although his account of a marriage coming apart through no one's fault has a remarkably modern ring, it emanates here from a man who, Fosterinsists on every other page, was devoid of virtue. Only "a professed Libertine," practiced "in the art of seduction," would treat the boundaries of marriage so cavalierly or entertain its dissolution so casually. A virtuous society, by implication, would mandate strict rules for marriage, strong sanctions against the spouses who broke them, and effective remedies for their innocent victims, including the legal right to remarry.42
Anxiety about illicit unions ran as a dour counterpoint to the exuberant theme of the perfect partnership. It made its way into the lyrics of a song titled "The Married Man," which made the case for marital legitimacy with signal clarity:
The Joys which from lawless connections arise
Are fugitive—never sincere,
Oft stolen with haste, and oft snatch'd by surprise
Interupted [sic ] by doubt and by fear;
But those which in legal attachments we find,
When the heart is with innocence pure,
Is from every imbit'ring reflection refin'd
And while life can taste joy can endure.43
The contrast drawn between lawless and lawful connections suggests that divorce was, among other things, part of an effort to differentiate the married from the unmarried. In making such a claim, we need not infer a consensus on either grounds or procedures; but a focus on the problem of marital legitimacy in the post-Revolutionary era helps us account for the widespread legitimation of divorce. Only in retrospect is it evident that it was the decision to accept formal rules for divorce in the first place, not the rules themselves, that constituted the true legal revolution in marriage. Nevertheless, the initial acceptance of divorce proved far less controversial than the subsequent working out of the particularities. On the threshold of the nineteenth century, the notion that divorces could be decreed for gross violations of the marriage contract had already acquired statutory legitimacy, and it had done so with remarkably little opposition.
Legislatures and Litigants:
A Fragile Consensus
A half century later, virtually every legal, social, and moral facet of divorce would become the object of intense national scrutiny. The nineteenth-century penchant for dissecting and rejecting the ground rules for divorce stands in striking contrast to the wholesale acceptance of thedivorce process at the end of the eighteenth century. It seems as if in instituting the new rules in spare and simple statutes, eighteenth-century legislators had embraced a solution without fully comprehending the problem. Not only did they neglect to address some thorny substantive and procedural issues, but they failed to anticipate the sheer numbers of men and women who would come to rely on the divorce process. Given the novelty of formal divorce in the early republic, it could hardly have been otherwise.
Post-Revolutionary legislators were addressing a post-Revolutionary problem: the persistence of extralegal marital dissolutions. Even as independence provided the intellectual and symbolic resources for accepting the concept of divorce, concern for marital legitimacy supplied the catalyst for legalizing it. In this context, divorce can be construed as a legal fiction designed to bring extralegal dissolutions under the aegis of state government. Couples were ending their unions anyway, and it remained for legislators to devise new ways to end them legally. In every country among "the lowest ranks," noted an observer of wife-sale, "men part with their wives, and wives with their husbands, with as little delay or remorse as they would move from one boarding house to another." Since law was "not to be had for nothing" in either England or the United States, since there was no property in question, and with "the object being only a wife," wife-sale, he concluded, was not even deemed worthy of formal prosecution. A variant of wife-sale in the marketplace appeared in the tale of the runaway wife who eloped to Chautauqua, New York, with her lover, only to be followed by her enraged husband. When the lover offered the husband fifty dollars to relinquish his wife, he accepted it and "returned home apparently satisfied, leaving the happy couple . . . exulting in their triumph."44
Since there is little evidence that wife-sale enjoyed as much prominence in North America as it did in England, such stories need to be taken with a grain of salt. At the same time, the class-based aspects of extralegal dissolutions illuminate the tensions inherent in providing legal ones. When Americans of "the lowest ranks" devised their own forms for divorce, they exhibited very little reverence for fault. As potential litigants, then, they would have a conception of divorce that was far less stringent than the statutes that provided for it, and in the courts they would exert enormous pressure on the paradigm of fault. The degree to which they implicitly challenged the prevailing constructions of the legal system lends support to a bottom-up model of cultural diffusion.
Fault, the legal bedrock of American divorce, ran contrary to many litigants' best interests. For those spouses who wanted the terms for their marital dissolution to be as easy as possible, mutual consent proved a highly appealing justification not only because it was swift and inexpensive but also because it comported nicely with the pursuit of happiness. And when spouses enlisted the active support of friends and neighbors in ending their unions, they were appealing to the weight customarily accorded to the approval or disapproval of the community. There was a compelling logic to the communal support of divorce by mutual consent, for if a proper marriage hinged on the mutual consent of the couple made public before witnesses, why should not divorce as well?
It was an idea that died hard and perhaps never completely. Well into the nineteenth century, state legislatures were besieged with crude divorce petitions, signed with an X and often accompanied by vague depositions that affirmed the consent of both parties together with broad community approval. In fact, consent often provided the basis for denial of legislative decrees, since it was antithetical to the principle of fault. And yet petitioners evinced an enduring faith that the sheer number of friends and neighbors who supported the dissolution would sway the minds of legislators. Tennessee legislative divorce petitions, for example, could carry up to seventy or eighty signatures. One Pennsylvania community even allowed its members to declare a divorce and arbitrate the division of marital property. Although it is not clear if the members of this informal tribunal were ignorant of the state divorce statute or were reluctant to abide by its relatively liberal terms, their willingness to create easy terms of their own speaks volumes to their belief in the legitimacy of a community-sanctioned dissolution. Moreover, in contrast to wife-sale in the marketplace, a custom that denigrated the wife as an object of property, this form of community approval exhibited a modern juristic dimension by deeming the wife an economic partner.45
It is a mistake to read all extralegal resolutions as the stubborn residue of a deeply rooted folk culture; they also represented alternative visions of the sources of post-Revolutionary moral authority. Divorce, in other words, fostered subtle contestation from its very inception. Conflict turned not so much on whether divorce should be legitimated—the Revolution seems to have provided a measure of consensus on that question—as on who should define the terms.46
We can discern the terms of "the state" from the language of its statutes. The 1787 New York statute, which enabled the Everitt divorceto take place, carried the message that divorce was to be avoided at all costs and was to be granted only for the most egregious breach of the marriage contract, the sin of adultery. Reading more like a criminal statute on adultery than a civil statute on divorce, its preamble stated that "the laws at present in being within this State respecting adultery are very defective." Yet the law was a good deal more than a statute on adultery. It is likely that extralegal marital dissolutions followed by long-term second unions were occurring just often enough to warrant legislation that rendered both the dissolutions and the subsequent unions more clearly illegal than ever before.47 To put the proposition another way, to make divorce legitimate was to make all other dissolutions illegitimate. That adultery was to be punished by the prohibition against the remarriage of the guilty spouse exemplifies the punitive thrust of the New York statute. Instead of a scarlet A , an adulterous spouse like William Everitt was to carry the burden of an invisible D .
The ensuing debate over the 1787 law reveals that what was at stake in these early statutes in New York and other jurisdictions were the terms for closing the gap between formal law, then expressed as divorcelessness, and various customary divorce practices. In the process of balancing the punitive advantages of the New York statute against the undesirable consequences of its restrictiveness, the Council of Revision vetoed it, asserting that unless it were possible to lock up adulterous spouses in a cloister, the prohibition on remarriage was an invitation to immoral and illegal unions. What is more, because a guilty spouse might remarry out of state, or, given the level of record keeping, even within the state, the authorities would face a practical problem of enforcement.
At issue here was nothing less than calculating the long-term, collective influence of divorce law on day-to-day marital behavior. Because legal rules had the power to influence moral choices in an area that had traditionally belonged to the church, even the invisible D was not without purpose. As Benjamin Trumbull argued in his assault on easy divorce in Connecticut, statutory failure to provide punishment for the guilty spouse could serve to undermine deeply rooted religious convictions. He warned of dire consequences for the citizens of Connecticut: "The silence and sanction of law in a special manner are such soothing cordials, such effectual opiates, that no flashes or thunder from the divine world would alarm their conscience."48
Passing the original statute over the veto of the council, New York legislators presumably wagered that in providing for divorce on highly restrictive terms, they were taking some sort of middle ground betweeneasy divorce and complete divorcelessness; they were discouraging casual legal dissolutions while making some inroads on the extralegal ones. Similar constraints were evident in statutes with broader grounds. The preamble to the Pennsylvania divorce statute of 1785 declared that it was "the design of marriage, and the wish of the parties entering into that state that it should continue during their joint lives."49
To see the legitimation of divorce as an effort at social control in which statutory recognition was deemed the lesser of two evils goes a long way toward explaining why it assumed the shapes that it did. The very marginality of our defendant, William Everitt, suggests that he was precisely the sort of person legislators had in mind when they fashioned the New York statute. Nonetheless, a top-down reading of legislative intent obscures the degree to which interest in the stability of marriage cut across both gender and class lines. Given the extensive interdependence of men and women in the political economy of post-Revolutionary marriages, we can understand the willingness of couples to live out their lives in decidedly uncompanionate partnerships despite the possibility of either extralegal or legal dissolutions. Most men and probably most women even more decidedly did not want countless dissolutions and reconstitutions.
What, then, are we to make of the part played by a woman like Sarah Everitt in the statutory recognition of divorce? One important consequence of the legitimation of divorce was the adversarial role it assigned to wives. Furthermore, recent scholarship suggests that in numerous jurisdictions over a variety of time spans women constituted the majority of divorce plaintiffs. Are we to construe their appearances in the courts of the early republic as dutiful and formulaic displays of compliance with legislators' efforts to sharpen the boundaries of marriage, as they sought formal resolutions for marriages that had been ended in fact by long-absent husbands? Or are we to read the suits they initiated against their husbands as acts of personal liberation that embodied the newly ascendant principle of individual autonomy?50
If compliance has the edge here, it is because the concept of liberation was so seriously compromised by the socioeconomic disabilities of women as to sap it of practical application. Not only was the principle of individual autonomy just gathering force a t the end of the eighteenth century, but it was distinctly masculine in its orientation. Feminist critics of the Enlightenment have marked out the late eighteenth century as a period in which sharp gender differentiation emerged, flourished, and laid the foundations for relegating women to the domestic sphere, wherethey remained under the authority of husbands and fathers. As economic dependents confronting an all-male legal system that embraced the double standard, women suffered structural disadvantages at the hands of the law that are only too apparent.51
Nonetheless, we should not jettison the liberation paradigm entirely. To the extent that suing for divorce was a legal option that depended on the voluntary, active, and even tenacious participation of female plaintiffs, it represented a conceptual reconfiguration of the marriage contract. The old common law fiction that husband and wife were one and the husband was the one could no longer hold quite the same authority once divorce challenged the male-dominated corporatism of marriage.
This brings us at last to Sarah Everitt, whose liberation seems so highly qualified as to create doubts about who was being liberated from whom. We cannot be sure of what lay beneath the simple chancery record, but on its face, it appears that William was the one who liberated himself from Sarah; and, in accord with the compliance paradigm, she legitimated the deed by coming to court. Yet even in Sarah's case, compliance does not tell the whole story. Perhaps there were property considerations, such as earnings or an inheritance, that impelled her to separate her legal identity from that of her husband, or perhaps there was a suitor waiting in the wings. Or perhaps she simply wanted to be free to remarry sometime in the future; presented with an option to put her life in legal order, she pursued it in the courts.
Beyond all these practical considerations, there was surely a powerful symbolic component of the action she took. In a world where the repudiation of a spouse had been a husband's prerogative, we should not dismiss the import of her right as a woman to repudiate her husband in a court of law.52 One thing is certain: divorce by a woman no longer represented the anarchic breaking of a sacred contract. Since it was William who was defined here as the anarchist who broke the contract, perhaps we should read Sarah's determination to divorce him as a declaration of independence. It was precisely this radical possibility—this slender thread of female autonomy—that would vex and intrigue subsequent generations.
Excerpted from Framing American Divorce by Norma Basch Copyright © 2001 by Norma Basch. Excerpted by permission.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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|List of Illustrations||ix|
|1.||Inaugurating the Rules, 1770-1800||19|
|2.||Refining the Rules, 1800-1850s||43|
|3.||Contesting the Rules, 1850s-1870||68|
|4.||When Women Go to Court||99|
|5.||When Men Go to Court||121|