In the fall of 1781, John Wersley, an officer fighting in the American Revolution fell ill. A kind family cared for him through a long recovery and during this time he became smitten with Susanah, one of the daughters in the household. The young girl returned his affections and upon his recuperation the couple was married. A scant month later, John left on the pretense that he had to visit his mother; a distraught Susanah later found out that her husband had absconded to Boston and would not be returning. In reaction, Susanah petitioned Virginia's General Assembly, hoping they would grant a private bill to end her marriage.1 To a member of today's society, who simply must see a lawyer to set divorce proceedings in motion, this may seem a ridiculous way to approach a legal separation, but in the Antebellum era if one wished to legally separate or divorce his or her spouse, a long, often cumbersome, often unfruitful process lay in store.. Obtaining a divorce was a difficult at times impossible endeavor. For quite sometime, until 1824, there were no formal divorce laws and the fate of a marriage lay entirely in each state's legislature.
Though the details of each process varied from state to state, the first step taken in the proceedings was to compile a petition for divorce and submit it to one's representative or directly to the House or General Assembly. Petitions could be simply a one-page letter or a twenty or thirty page plea complete with the background of each party, marital conflicts, grounds for divorce, character testimonials from friends and neighbors, eyewitness accounts of any significant incidents, etc. Sometimes affidavits from supporting witnesses were even sworn before a justice of the peace. Witnesses could be called upon to testify in court during the decision-making period. Any spouse who wished to do so could also submit a counter-petition.2
Of course, completion of a petition, regardless of thoroughness, did not guarantee a divorce. Breaking the bonds of marriage was frowned upon heavily by every facet of society, including family, church, friends, and community members. The prevailing attitude throughout the country was that divorce was immoral and threatened the backbone of American life: the family. This mindset, combined with the absence of a divorce code in the United States, resulted in few divorces granted, especially directly following the American Revolution. Nearly all divorces granted were those of male petitioners whose wives had committed adultery, unquestionably if a child was conceived from the illicit relationship. A decree of divorce a vinculo, or a complete divorce, was usually offered under these circumstances as well as in cases of desertion to allow the innocent party to marry again.3 It was not until 1805, when Pamela Sampson had the distinction of being granted a divorce a vinculo because her derelict husband was unable to support her, leaving her and her infant completely dependent upon the kindness of her friends and neighbors, that a woman was granted an absolute divorce for reasons other than the aforementioned.
It is not surprising that America, having already incorporated multiple elements of English Common Law and Liberalist philosophy, should have looked to their cultural ancestry for divorce mores. In England, a parliamentary divorce was very difficult to obtain. It required a bed and board, or a mensa, divorce from the Anglican Church, followed by the securing of a tort award in "criminal conversation action against a man who had sexual intercourse with the plaintiff's wife". Very few divorces were given this way: in a 193 year period, from 1670 to 1857, only 325 couples' marriages were dissolved; these couples were almost exclusively members of the upper class.4 It was from this model that the early American, common-law petition system evolved.
Similar to their English counterparts, the majority of divorces granted by American legislatures were to the upper-middle and upper classes. Because the system was common-law, legislators could arbitrarily grant or withhold divorce privileges. The 1813 case of John O'Quin illustrates this principle. Mr. O'Quin, along with several of his male friends, was a frequent visitor of taverns and houses of ill repute. One evening Mr. O'Quin indulged himself excessively with alcohol and woke up the next morning next to "a Huge Mass of Creation, purporting to be of the Female Sex, who called herself MARY JACKSON". When the baffled man questioned this mass of creation how she came to be in his bed, she shockingly replied that a magistrate, one of O'Quin's carousing friends, had married them the night before.5 When the foolish man petitioned the legislature begging for freedom from this hasty wedding, he was rapidly denied. Undoubtedly there were some laughs in the law-making body that day. Humorous though it may seem, this example illustrates the arbitrary nature of divorce decisions in the early nineteenth century. A great deal of the basis for these moral judgments was the material wealth of the petitioners: Judge Eugenius A. Nisbet of Georgia admitted: "The wealth and standing of the parties, their political and social relations, or perhaps, the personal beauty of the female litigant, controlled many cases of action in the legislature".6
The manner in which each legislature and corresponding community handled the problem of divorce can be partially examined by the regions of North and South, as each area had unique political, cultural, religious and economic conditions. In general, Northern states were more progressive in their divorce proceedings and more liberal in granting divorces. Southern states adopted a conservative stance on divorce, reluctantly granted divorces to women and few to men. In states such as Maryland, where there were populations representative of both Northern and Southern cultural norms, Southern legislatures "continually voted against private divorce bills in large numbers, while representatives from other areas voted the opposite way".7 Fascinatingly, the act of divorce and its acceptance, or its rejection, was dependent upon community opinion in the South. At times, even if a man had reasonable grounds for divorce, such as his wife had committed adultery, he could be denied one if he did not behave in as manly a fashion as the community and members of the legislature thought he ought. John R. Sexton of Blount County, Tennessee ran into this problem when attempting to divorce his wife Elizabeth. Elizabeth's promiscuous behavior was widely known in the community; witnesses were able to testify to her having sex with two men at once in the couple's home, in broad daylight under a tree with another, and was found frolicking with yet another under a bush. The woman, when confronted by their local deacon brazenly proclaimed that " My ass is my own and I will do what I please with it".8 John Sexton refrained from confrontation with Elizabeth's lovers, no attempt at preserving his honor by challenging these men to fights was made. In a society where it was common to gouge out eyes and bite off tips of noses for much more trivial matters, failure to physically retaliate represented a breakdown in assertion of authority, an impotence of sorts.9 Stanton's appeal for divorce was denied. Abraham Walker, of Athens, Georgia, certainly had this societal convention in mind when he decided to petition for divorce from his wife.
In the Georgia Journal of January 19th, 1832, Walker published his intent to petition for divorce from his allegedly adulterous wife. In this article, Walker states that he had "written testimony, positive, full, clear, and unquestionable" that his wife had slept with three men: John Gilbert, James C. Edwards, and N.H. Beal. By directly stating the names of these men and their crime of "criminal intercourse", Walker would have been regarded as defending his honor. What other purpose would such a blatant article serve? Two of the men included in these allegations became incensed at this attack on their reputations and decided to retaliate in a similar fashion. The first response was published to N.H. Beal in the February 10th edition of the Athenian, asking for a "suspension of public opinion, in relation to the charges preferred by A. Walker against his wife, and myself, until an investigation can be had". Four days later, both Beal and Edwards published letters in the Athenian simply addressed "To the Public", vehemently professing their innocence and defending their reputation. Each also explicitly mention clearing their character: N.H. Beal writes "A descent respect for the opinions of the world, and a justifiable determination to vindicate my character from a foul accusation, is, it is hoped, a sufficient apology for the present publication", and J.C. Edwards comments that "… as A. Walker's comment in the Georgia Journal of the 19th inst. Has no doubt deeply injured, perhaps totally destroyed, my character abroad, I must beg your indulgence while I attempt to vindicate myself from the charges and insinuations of that comment".10 In these articles both men also shift attention from themselves to John Gilbert, who they agree has committed the crime of adultery. These articles serve to publicly defend each man's honor while shifting the attention of the crime to someone else. The legislature of Georgia apparently found Walker's behavior "man enough"; his petition for divorce passed through the required court trial and two-thirds majority vote in both houses of the Assembly.
The severity with which divorce was regarded in the South was extreme: "Southern men and women regarded divorce as a personal, familial and social disaster".11 The patriarchal society of the south required the family unit to stay intact; the family was not only a private reflection of order but a public one as well. Take for instance the plantation family. Maintenance of order was not only integral to the management of the every day affairs, but for reinforcing the power of the plantation owner, i.e. the slave owner. If a plantation wife could easily divorce her husband, it would illustrate power of a woman over a man, thus emasculating the ultimate symbol of authority. In addition, because women possessed no legal rights after marriage they shared the same status in the eyes of the law as a slave. Therefore, it implies that if a woman can overpower a man, so can a slave. Another, darker reason involves the practice that many men participated in and none spoke of: their illicit relationships with slave women. It was not uncommon for a plantation owner to have several illegitimate mulatto children with slaves; these children were quite obviously not the product of a slave union, but this was seldom remarked upon. It was just another sign of the male asserting his dominance. It was of the utmost importance that this dominant image remain intact. South Carolina actually did not allow any divorce until the Civil War to protect men and to uphold their religious stance on the matter.
South Carolina's Judge O'Neall once boasted that "the Legislature never has, and never will act" to validate divorce. "From time to time, he said 'the most distressing cases, justifying divorce even on scriptural grounds', such as adultery by a wife, reached the legislatures, but they 'nobly adhered to the injunction' of the New Testament never to surrender bonds sanctified by God".12 While South Carolina did take an extreme stance, even more secular states were not above using religious ideals to justify denying divorce. Many churches were against absolute divorce, and resorted only to granting bed and board divorces when the woman had been convicted of adultery. Membership in churches was often revoked from divorced members, and some churches sent their own petitions to the legislature against divorce, such as did the Protestant Episcopal Church in 1807.13 Churches in the South were much more stringent on their policies on divorce than those of the North, where religious practices did not create as hostile an environment. In fact, more divorces were petitioned for and granted in New England states partially for this factor, while in the South parties were more likely to settle things privately before petitioning publicly.
Life after divorce anywhere in the United States was difficult, especially if one lacked the approval of the community. The responses of Clarke County's Abraham and Amarintha Louisa Walker after their divorce stand as prime examples. Although Abraham had the approval of the Athens community and was granted a legal divorce, he nevertheless left Athens to live with a sister in Augusta, Georgia. The Southern Banner of February 22, 1839 announced his death there after a "short but painful illness". As for Amarintha, a convicted adulteress, her life was undoubtedly lived out in shame. Soon after the divorce, she fled Clarke County for parts unknown. According to law, she would not have been able to marry again; even though the divorce was granted a vinculo, because she was the guilty party, she lost the privilege of remarriage.
Divorce in Antebellum America, regardless of what area of the country one resided in, was unavailable to most of the general population, as the legislatures favored upper-class petitioners. The process of divorce was lengthy, involving the entire state legislature in its granting. Community expectations and ideals, especially in the South, made the entire process even more complex. As the nation changed, divorces became more frequent and the acceptable reasons to divorce grew to include cruelty of a spouse, violence, and even general happiness. The process shifted from the hands of the legislature to lower courts as the number of petitions became overwhelming to the lawmaking body. At the close of the antebellum era, the process of divorce, while still difficult, relaxed a great deal and was well on its way to progressing into the modern divorce of today.
1. Thomas E. Buckley, S.J., The Great Catastrophe of My Life: Divorce in the Old Dominion (Chapel Hill, 2002), 1. Buckley used Pet. Of Wersley, Legislative Petitions, Records Group 78, Library of Virginia, Richmond
2. Buckley, The Great Catastrophe of My Life: Divorce in the Old Dominion, 23
3. Debra Ann MacComb, Tales of Liberation, Strategies of Containment: Divorce and the Representation of Womanhood in American Fiction, 1880-1920, (New York, 2000), 7.
4. Richard h. Chused, Private Acts in Public Places: A Social Hisotry of Divorce in the Formative Era of American Family Low, (Philadelphia, 1994), 21.
5. Bertram Wyatt-Brown, Southern Honor: Ethics and Behavior in the Old South, (New York, 1982), 302
6. Bertram Wyatt-Brown, Southern Honor: Ethics and Behavior in the Old South, 303. Brown uses Haywood Roebuck's "North Carolina Divorce and Alimony Petitions: 1813," North Carolina Genealogical Society Journal 1 (April 1975): 85-96; Johnson, Ante-Bellum North Carolina, p. 217; Nisbet quoted in Bloomfield, American Lawyers, p 212.
7. Chused, Private Acts in Public Places: A Social History of Divorce in the Formative Era of American Family Law, 6; further refer to Table 13 in Appendix I of this book, showing that for most time periods delegates from the South favored private divorce bills at lower rates than delegates from other areas.
8. Bertram Wyatt-Brown, Southern Honor: Ethics and Behavior in the Old South, 303
9. Elliott J. Gorn, '"Gouge and Bite, Pull Hair and Scratch': The Social Significance of Fighting in the Southern Backcountry.," The American Historical Review, Vol. 90, No. 1, Supplement to Volume 90. Feb., 1985), pp. 18-43. This article details rough and tumble fighting, its reasons and purposes. Brawls were often over trivial matters and fought by appointment, watched by crowds. Gouging out eyes was a sure way to victory and much energy was put into becoming skilled in this technique. Fighting did not pertain strictly to lower-class citizens; gentry had to defend their honor as well. Men were always looking for ways to establish their prowess in the eyes of their community
11. Chused, Private Acts in Public Places: A Social History of Divorce in the Formative Era of American Family Law
12. Wyatt-Brown: Southern Honor: Ethics and Behavior in the Old South, 300
13. Chused: Private Acts in Public Places: A Social History of Divorce in the Formative Era of American Family Low, 43. During the annual convention of the Protestant Episcopal Church, this statement was issued upon conclusion of the discussion of divorce:..resolved that a committee be appointed to draft and present a memorial to the next general assembly of state, respectfully remonstrating against the practice of granting divorces on slight and insufficient grounds, and praying that, in future, no dissolution of marriage be sanctioned by the legislature, except in cases in which the woman, in a court of law, has been convicted of the crime of adultery.