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ISBN 978-0-8078-5380-1

Published: Fall 2002

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Copyright (c) 2002 by the University of North Carolina Press. All rights reserved.




Introduction

Petitions
Writing in a careful hand on a single sheet of paper, in 1786 Susanah Wersley begged Virginia's General Assembly for a divorce. She described herself as a victim of the American Revolution. Five years earlier, while the fighting raged close to her home in Hanover County, her family had sheltered a sick colonial soldier, John Wersley, who claimed to be an officer from North Carolina. During a prolonged convalescence he courted the impressionable young woman. Susanah fell in love and, against the advice of her parents and other relatives, married him the following spring. The newlyweds had lived together for just a month when her husband announced that he needed to visit his mother briefly in New Bern. Susanah eventually discovered that he was in Boston. Obviously John had deceived her into marriage and never intended to live with her again. She petitioned the legislature to pass a private bill dissolving their marriage.[1] No other venue existed where she might seek relief. The state had no divorce code, and the courts lacked jurisdiction.

The approach Susanah Wersley took to remedy her situation was not unusual. Throughout the colonial period and at least until the Civil War, women and men, singly or in groups, sought relief of varied kinds and expressed their views on a host of subjects by petitioning their elected representatives. At each session the lawmakers approved dozens of private bills to assist individuals and communities.[2] But they rejected Susanah's petition, as they would hundreds of others from unhappy spouses for the next sixty-five years. During that time the assembly approved divorces for only one-third of the applicants. Meanwhile, decades passed before the courts gained even the most limited authority. The way Virginians terminated marriages dramatically illustrates how far removed we are from their world. In our no-fault era the very idea of asking legislators to provide a divorce by private bill boggles the mind. But well into the nineteenth century, Virginia law afforded no other option for desperately unhappy women and men trapped in loveless relationships.

The stories of their troubled marriages and the multiple obstacles to ending them form the core of this book. The experiences of the petitioners reveal the harsh legal culture that surrounded divorce in the Old South. Although each case must be taken on its own terms, the structure of the legal system ensured that all petitions shared certain features. Each attempted divorce played itself out in a series of minidramas with multiple legal actors and institutions. In virtually every scene various parties debated, explicitly or implicitly, core values such as personal happiness, family stability, and the welfare of society. Husband and wife possessed the principal roles even though, as in the case of John Wersley, one party might have been absent during some or all of the legal exchanges. Domestic settings vary dramatically, yet some tragedies are strikingly familiar. One spouse might simply have abandoned the other. More often a third party emerges as the source of alienated affections. If that person is African American, race heightens the tension. Sometimes extreme verbal abuse and physical brutality arrest one's attention and arouse sympathy for the aggrieved individual, usually a wife. Fraud at the time of marriage presents another familiar scenario, and economic issues invariably surface at some point in the contest.

In every divorce the presence of family members, neighbors, and friends during domestic altercations brings a communal aspect to the conflict. Later, when a justice of the peace takes depositions, they become sworn witnesses to the conduct of one or both spouses. Churchyards, courthouse greens, and neighborhood taverns provide settings for the local community to exchange news and gossip about the marital conflict, to argue over the merits of a particular case or divorce in general, and to offer support for one or both spouses. Some people may also assume a legal role in vouching for the good character of the husband or wife, or when seated as a jury in the courtroom, they determine the truth or falsity of the alleged facts in a particular case. County magistrates, lawyers, and sheriffs all play important parts. Finally, the central act opens on the legislators in the capitol as they receive the plea for a divorce, sift the evidence, and render judgment. At times the discussion becomes heated and spills over into the press. Afterward, whether the application for divorce is granted or denied, the spouses, family, and community must cope with the results.

This study, therefore, contextualizes tales of marital failure and the search for divorce within the boundaries of politics, law, religion, family, and community as these elements clashed, shifted, and changed between the Revolution and the Civil War. Over these years the competition among conflicting values dominated the statewide debate. The struggle to escape the bonds of matrimony pitted individuals, couples, and sometimes families and whole communities against an ethic inherited from colonial Anglicanism and rigidly maintained within a legal system promoted at the political center. Only ever so slowly did the legislators formulate general divorce laws and allow courts to dissolve marriages.

The huge collection of petitions in the archives of the Library of Virginia provided the principal research materials. In expressing the concerns and anxieties of ordinary Americans, these texts expose a multitude of social, political, and economic issues. An important subset of the collection pertains to divorce. Over the decades from 1786 to 1851, 242 women, 218 men, and 5 couples submitted 583 divorce petitions to the Virginia assembly, some of them repeating their request as much as two or three times. Of the total number of divorce petitions, 471 (80 percent) have been located. They came from 204 women, 171 men, and 4 couples.[3] What makes their petitions fascinating is the absorbing firsthand accounts they present, often with extraordinary detail, as they interpret their troubled marital situations to other southerners and to themselves. Cutting across boundaries of gender, race, and class, these manuscripts provide intimate perspectives on the lives of mostly white men and women from every type of background and socioeconomic condition as they confronted the multiple problems of troubled marriages and broken families. All the emotions of marriage gone sour—anger, shame, betrayal, hurt, jealousy, and rage—bleed from those pages.

In addition, every petition file includes whatever supporting materials the suppliant collected to bolster a case for divorce. The affidavits relate harrowing incidents of domestic turmoil. Accounts of adultery, cruelty, battery, fornication, and desertion specify the grounds for positive legislative action. Warmly supportive letters, often from prominent local figures, might accompany a petition. Sympathetic community members might endorse a statement of the petitioner's good reputation and the veracity of the charges to forward to Richmond. Besides these often hefty files amounting to dozens of pages, other resources abound to complete the picture. Census, tax, and property records yield evidence of wealth, age, and relationships. Legal documents such as deeds and wills explain family ties. Records of county courts and municipal jurisdictions detail brushes with the law and abusive situations. Private correspondence and even the contemporary press may further flesh out the circumstances of a particularly messy divorce. Frequently these sources expose the relative strengths and weaknesses of husband and wife in their marriage and fix their social, economic, and political status in the community. Taken together, this mass of documentation makes it possible to reconstruct the tragic married lives of these couples.

Some historians have delved into this rich source material. Nancy Cott and Lyle Koehler, for example, successfully mined the colonial Massachusetts divorce petitions. Bertram Wyatt-Brown utilized a variety of petition collections in Southern Honor: Ethics and Behavior in the Old South. For her discussion of divorce, Brenda Stevenson studied eight petitions submitted from Loudoun County, Virginia, during the pre-Civil War era. Suzanne Lebsock found the petition collection helpful for The Free Women of Petersburg. Cynthia Kierner included a sample of divorce petitions in Southern Women in Revolution.[4] Yet discussions of divorce in the South by these scholars as well as in books by Peter Bardaglio, Victoria Bynum, Catherine Clinton, and Stephanie McCurry reinforce the need for more systematic studies.[5] The single book-length treatment for a southern state, Richard Chused's quantitative study of legislative divorce in Maryland, focuses on lawmakers and legislation. The best analysis of divorce in the antebellum South remains an article that Jane Turner Censer wrote two decades ago.[6]

In the past some researchers have shied away from exploiting the petition collection out of the belief that such autobiographical documents are too subjective to be reliable. More than thirty years ago James Hugo Johnston published his 1937 doctoral dissertation, which included extensive excerpts from some of these memorials. Reviewing Johnston's book, Robert McColley warned against taking the divorce petitions "literally" and urged a "cautious skepticism."[7] The same caution, however, applies to virtually every historical document, particularly those of a completely private nature such as letters and diaries. Newspapers are notoriously inaccurate. In the divorce files, some individuals undoubtedly lied, and every petitioner pleads a cause. Affidavits and depositions wear the bias of the witness. Unlike private papers or the press, however, the veracity of each petition is checked by the public nature of the process; the presence, quality, and number of notarized affidavits from witnesses; conflicting testimony; the real possibility of counterpetitions; the watchdogs in legislative committees; and after 1827, the jurors who passed judgment on the facts of a case. Moreover, a petition's usefulness rests as much in the attitudes, values, and beliefs it expresses as in a recital of events. Male and female petitioners drafted texts they hoped would persuade. Thus their rhetoric exposes the cultural outlook of the legislators they sought to impress.

The petition collection provides not only firsthand accounts from people's lives but an unusual opportunity to move outside the elite circles of the literate upper classes and examine the attitudes, values, and situations of middle and lower classes and even poor folk. Research is always easier when the subjects could read and write. But drawing on the assistance of friends and sympathetic neighbors to draft their requests and provide supporting affidavits, the poor submitted petitions, too, an abundance of them, and scratched their mark next to their names. Working from Superior Court records on divorce, Jane Turner Censer discovered a class bias in a southern judicial system that was more available and responsive to "ladies" than to women further down the socioeconomic ladder.[8] Legislative divorce, when and where it was available, offered a cheaper and more egalitarian venue to the bottom 90 percent of the population.

Yet for good reason, as we will see, historians have not treated this procedure kindly. A century ago, in his magisterial three-volume study, A History of Matrimonial Institutions, George Elliott Howard decried legislative divorce as a terrible evil, a stumbling block on the road to progressive reform. In the southern states, he wrote, "it bore its most evil fruit." Later historians echo his lament and applaud the turn toward the courts and the easing of legal strictures against divorce as yet another beneficial effect of advancing modernization.[9] The petitions reveal the legislative divorce system as people experienced it in all its harshness and inconsistency. The assembly's Journals, reports from the press, and frank criticism in private letters evidence the desire for change on the part of some members of the governing elites. But the discursive process that marked the transition to judicial divorce extended over six decades. Agents included the estranged spouses, members of their immediate families and kinship groups, friends and neighbors, local officeholders, judges, legislators, journalists, clergymen, educators, and a broadly interested public that by turns observed or joined the discussion.[10]

Participants structured their discourses in terms of multiple concerns, but repeatedly they returned to the central point at issue: the conflict between the commitment most of Virginia's leaders felt to the indissolubility of marriage as an essential component of a Christian society and the concrete evidence of human misery and gross injustice in particular marriages. For multiple reasons divorce touched a raw nerve in southern consciousness. Breaking the marital bond between husband and wife not only assaulted a religious tradition that rejected divorce; it undermined the foundations of a close-knit, slaveholding society based on the hierarchy and solidarity of the household unit. Individuals, couples, families, kinship networks, churches, local communities, and state assemblies agonized over the subject. Indeed, the texts that prompted or reacted to the discussion of general and private divorce bills elucidate southern attitudes on a spectrum of issues. Thus divorce provides a fascinating prism through which we can examine the cultural values of Virginians and, by extension, the rest of the South before the Civil War.[11]

Though my research is based on a single state, Virginia mirrors much of the diversity of the entire South. In population the Old Dominion ranked first in the Union in 1790 and remained first in the South throughout the antebellum era. As the largest state east of the Mississippi River before its division during the Civil War, it stretched from the Eastern Shore of Chesapeake Bay to the Ohio River. The vast landscape presented enormous regional variations as one moved through the Tidewater below the fall line of the rivers across the rolling Piedmont to the mountains and valleys beyond. The counties along and south of the James River contained wealthy plantations with fertile tobacco lands and large numbers of slaves, while west of the rich loam and prosperous farms of the Shenandoah Valley the hollows of the Appalachian Mountains held mainly subsistence white farmers and their families, generally hostile to slavery and resentful of the political power it gave the easterners. Across the commonwealth the majority of the population engaged in agriculture and lived on the land, but the number of urban dwellers increased steadily. During the antebellum era, older towns such as Richmond, Norfolk, and Alexandria became cities, and new commercial and mercantile centers sprang up. Thus pre-Civil War Virginia provides a geographical and socioeconomic diversity and a rural-urban mix sufficient to reflect the southern population as a whole.[12]

* * *

This book argues that most southern men and women regarded divorce as a personal, familial, and social disaster. It dissolved the bond that both husband and wife, albeit from different perspectives and for diverse reasons, viewed as essential to personal happiness and fulfillment, and for many of the people whose lives it touched, divorce left deep psychic scars. Moreover, divorce in this time and place held serious implications for kinship and community. While it obviously destroyed the immediate family, it also strained the extended ties of blood and marriage so integral to southern life. Because marriage fixed a person's place in the social structure and established the households on which the whole South rested, divorce represented a fundamental assault on society. Nevertheless, using the law to end a disastrous marriage sometimes proved necessary, the only reasonable way to cope with an impossible situation. During the first half of the nineteenth century most southerners gradually adjusted to that reality. As acceptance grew, a further question arose. Who should decide the fate of individual marriages? With great reluctance the assembly gradually gave that responsibility to judges and juries. But the removal of divorce cases from the legislative hall to the courtroom was not an expression of a collective desire for liberal reform or an effort to make divorce easier. Virginians permitted judicial divorce on precise, narrow grounds and hedged it about by rules of procedure and jurisdiction in order to strengthen a fundamental commitment to marriage as foundational to their society.[13]

Three sections comprise this narrative. The first, containing three chapters, contextualizes legislative divorce in its political, legal, religious, familial, and communal aspects, using various divorce cases as points of entry. Chapter 1 focuses on the politics of divorce, the attitudes and policies of legislators, and the widespread resistance to divorce, particularly at the political center. Concerned primarily for the common good of society as rooted in marriage and the family, a conservative legislative temper found support in a perspective on marriage derived from Anglicanism and reinforced by nineteenth-century evangelical Protestantism. This religious culture, the subject of Chapter 2, undergirded the politics of the antebellum South and helps to explicate the nature of the settlement Virginia worked out in 1851. Religious references and language interlaced discussion of divorce, and English church law guided the assembly's adjudication of individual cases and eventually the passage of general divorce laws. Within this religiously oriented culture, women and men commonly derived their attitudes and values from family and local community. Chapter 3 locates the critical roles of relatives and neighbors in marital disputes and explores in particular the problems of marriages between kin. In this familial arena, local mores frequently conflicted with the larger society's established values and even the state's legal code. The treatment of divorced persons in the community reinforces the view that localism dominated life in the Old South.

The next three chapters form the second section of this study. Utilizing cases drawn from the collection of petitions, they explore the principal reasons that drove women and men to seek legislative divorces and the legal boundaries within which they operated. Chapter 4 examines instances of interracial sex as grounds for marital dissolutions. White males proved to be the chief beneficiaries of the "double standard" in morality. The earliest divorces women received in any number involved physical battery as the crucial complaint. Chapter 5 studies these abusive situations, drawing on modern psychological and sociological research to analyze the patterns they followed. Not all women were victims, however, nor were they necessarily repressed. Chapter 6 explores the challenge that female adultery and desertion presented to husbands, families, and society. Southern women as well as men could give free rein to their sexual urges.

The third section presents in a final chapter an extended case study of one woman's inner experience of marital disaster, the social stigma she bore as a divorced woman in the 1840s and 1850s, and her ultimately successful struggle to overcome social prejudice and her own fears to enter a new marriage. By way of conclusion, it summarizes the legislative process of divorce while examining the profound conflict southerners faced in coping with broken marriages within a resolutely conservative society.