1. Written in 1771 or 1772, Jefferson's notes were developed in conjunction with the possible divorce of a Dr. James Blair of Williamsburg, who retained him as a lawyer-legislator in the event that Mrs. Blair should insist on a separate maintenance. The Blairs, it seems, were already separated, and Jefferson was planning the precedent-setting case he might undertake on behalf of the husband before the Virginia legislature. His client, however, died in December of 1772, and the wife subsequently sued for her dower in his estate. Dewey, Frank L., “Thomas Jefferson's Notes on Divorce,” William and Mary Quarterly, 3d ser., 39 (1982): 218–19CrossRefGoogle Scholar.

2. On fault divorce as a stabilizing compromise, an unavoidably hypocritical bargain that sustained a strict moral code while tolerating a lax unofficial one, see Friedman, Lawrence M., A History of American Law (New York, 1973), 183Google Scholar; and idem, “Notes Toward a History of American Justice,” in American Law and the Constitutional Order, ed. Lawrence M. Friedman and Harry M. Schieber (Cambridge, Mass., 1978), 17–18, 23.

3. Phillips, Roderick, Putting Asunder: A History of Divorce in Western Society (Cambridge, 1988), 153–58Google Scholar, 175–85.

4. Cott duly noted the absence of financial support in Massachusetts decrees, but it is her subtle analysis of the links between women's use of the divorce process and a paradigmatic shift in marriage that has had enormous influence on subsequent scholarship. Although that scholarship has been far from monolithic, Cott has largely set the terms for relating divorce to the social construction of gender. As a result, scholars have placed divorce for women on a patriarchal-companionate continuum. See Cott, Nancy F., “Divorce and the Changing Status of Women in Eighteenth-Century Massachusetts,” William and Mary Quarterly, 3d ser., 33 (1976): 586–614CrossRefGoogle Scholar; idem, “Eighteenth-Century Family and Social Life Revealed in Massachusetts Divorce Records,” Journal of Social History 10 (1976): 20–43. For close parallels, see Degler, Carl N., At Odds: Women and the Family in America from the Revolution to the Present (New York, 1980)Google Scholar; and Griswold, Robert L., Family and Divorce in California, 1850–1890: Victorian Illusions and Everyday Realities (Albany, 1982)Google Scholar. For a less sanguine view of divorce in early America, see Kerber, Linda K., Women of the Republic: Intellect and Ideology in Revolutionary America (Chapel Hill, 1980), 159–84Google Scholar; Kerber suggests that women's reliance on divorce usually represented “the gambit of the desperate.” For a comprehensive analysis of the distribution of marital assets in separations and divorces in the same period, see Salmon, Marylynn, Women and the Law of Property in Early America (Chapel Hill, 1986), 58–80Google Scholar; Salmon charts a slow and steady improvement in the legal status of married women, but is cautious about the effects of absolute divorce, noting that some women opted for a separation with a separate maintenance over a complete divorce without alimony. On the benefits divorce provided women in a patriarchal context, see Censer, Jane Turner, “Smiling Through Her Tears: Ante-bellum Southern Women and Divorce,” American Journal of Legal History 25 (1981): 24–47CrossRefGoogle Scholar; and Goodheart, Lawrence B., Hanks, Neil, and Johnson, Elizabeth, “‘An Act for the Relief of Females…’: Divorce and the Changing Legal Status of Women in Tennessee,” Tennessee Historical Quarterly 44 (1985): part I, 318–39Google Scholar, and especially part II, 402–16, which draws on evidence from the lower courts. For a refinement of the concept of companionate marriage that emphasizes the role of women's decreasing economic dependence on individual men in their readiness to use the law independently, see Lebsock, Suzanne, The Free Women of Petersburg: Status and Culture in a Southern Town, 1784–1860 (New York, 1984)Google Scholar. Grossberg's, Michael C. overarching study of family law, Governing the Hearth: Law and the Family in Nineteenth-Century America (Chapel Hill, 1985)Google Scholar suggests a decline at one level in the relative autonomy of women with the emergence of what he calls “a judicial patriarchy” in the last decades of the nineteenth century. On divorce in the progressive era, see pioneering, William O'Neill'sDivorce in the Progressive Era (New Haven, 1967)Google Scholar, a work that develops the idea of divorce as a safety-valve for marriage. See also May, Elaine Tyler, Great Expectations: Marriage and Divorce in Post-Victorian America (Chicago, 1980)Google Scholar. Contrasting divorces from the 1880s with those from the 1920s, May notes a confluence between an improvement in alimony provisions in the 1920s together with women's rising expectations in marriage and greater participation in the labor force. For the problems engendered by contemporary patterns of alimony and child support, see Weitzman, Lenore J., The Divorce Revolution: The Unexpected Social and Economic Consequences for Women and Children in America (New York, 1985)Google Scholar. Generally, however, there has been little emphasis by historians on some remarkably similar problems in the nineteenth century.

5. This trend is best exemplified by Stone, Lawrence, The Family, Sex and Marriage in England, 1500 to 1800 (New York, 1977)Google Scholar; Shorter, Edward, The Making of the Modern Family (New York, 1975)Google Scholar; and for the United States, Degler, At Odds. For a critical review of this trend in scholarship on marriage, see Gillis, John R., For Better, For Worse: British Marriages, 1600 to the Present (Oxford, 1985), 3–5Google Scholar.

6. Divorce had been available in Puritan jurisdictions in the colonial era, but modern, national statutory patterns were established in the first half or two-thirds of the nineteenth century. For periodization and an overview of national trends, see Hindus, Michael S. and Withey, Lynne E., “The Law of Husband and Wife in Nineteenth-Century America: Changing View of Divorce,” in Women and the Law: The Social Historical Perspective, ed. Weisberg, D. Kelly, 2 vols. (Cambridge, Mass., 1982) 2:133–53Google Scholar. Goodheart, Hanks, and Johnson, “ ‘An Act for the Relief of Females …’” do, in fact, cover the circuit courts of three Tennessee Counties in this period, but they do not focus on alimony provisions.

7. For a similar strategy, see May's reliance on both New Jersey and California in Great Expectations.

8. Indiana provided divorce for impotency, bigamy, adultery, abandonment, conviction of a felony, cruelty, and “in any other case, where the court in their discretion, shall consider it reasonable and proper that a divorce should be granted.” Divorce was defined officially in 1833 as a proceeding in chancery. The circuit courts sat as both common law and chancery courts with jurisdiction over any county where the complainant resided, regardless of where the cause for the divorce took place. Laws of Indiana, 1831, c. 31; ibid., 1833, c. 33; Wires, Richard, The Divorce Issue and Reform in Nineteenth-Century Indiana (Muncie, 1976)Google Scholar. On South Carolina, see Salmon, Women and the Law of Property, 62, 64–66, 71, 74–76. On New York, see Laws of New York, 1787, c. 69; ibid., 1966, c. 254.

The Monroe County evidence consists of 112 divorce actions, all those recorded in the county from its inception in 1818 through 1870. They are recorded in Civil Order Books and Final Records, which are sometimes chronologically overlapping, cover the same cases, and extend beyond the period they are designated as covering. Evidence ranges from densely detailed accounts of a divorce to concise descriptions of the complaint and decree. Court papers were inaccessible. Yet these records invariably include alimony claims and awards and have the advantage of covering other legal actions by divorce litigants. They also record unsuccessful and suspended divorce actions. These records are available in the Office of the County Clerk, Monroe County, Bloomington, Indiana.

The New York County evidence consists of judgment rolls from 230 matrimonial actions (189 divorces, 21 separations, 17 annulments, and 3 actions related to former matrimonials) between 1787 and 1870. They are drawn from An Index to Matrimonial Actions, 1784–1910 and are located in the archives of the Supreme Court of New York County, a jurisdiction equivalent to the Monroe County Circuit Court. Cases are indexed chronologically and by the first letter of the complainant's last name. This sampling consists of A-H matrimonials, roughly the first third of the alphabet, and is made up of all A-H matrimonials from 1787–1800, 1 of every 3 between 1801 and 1840, 1 of every 4 between 1841 and 1860, and 1 of every 10 between 1861 and 1870. Judgment rolls include original complaints, answers, proofs of service, depositions, examinations of witnesses, reports of the master in chancery or Supreme Court referee, decrees, and exhibits of letters, financial statements, and even some early photographs, all literally rolled together and tied with a red ribbon, faded now almost to a dull brown. Some of these rolls are extraordinarily rich in detail, but they, too, are uneven. One can never be certain from the rolls alone about subsequent alimony awards, but when used in conjunction with the index, where such awards should appear, they become more reliable. New York records do not include unsuccessful divorce actions; these were sealed and remain unindexed.

9. According to Carroll D. Wright's survey, between 1867 and 1886, 65.8 percent of the divorces in the United States were granted to women. A Report on Marriage and Divorce in the United States, 1867 to 1886 (Washington, D.C., 1889), 170Google Scholar. Statewide for the same period, women accounted for 71 percent of the divorces in Indiana and 62.6 percent of those in New York. Although the New York statute undoubtedly discouraged the use of formal divorces and probably encouraged extralegal strategies, it is clear that the rate of divorce in New York County exceeded that in most of the state. In New York County in 1870, the average annual number of divorces per 100,000 persons was 28, exceeded in the state only by Cortland County, while in Monroe County, Indiana, it was 85. Estimating the divorce rate in relation to total population is misleading, but given the faulty recording of marriages and the considerable ambiguity over what constituted a marriage, it remains the most accurate available estimate. United States Bureau of the Census, Special Reports, Marriage and Divorce, 1867–1902 (Washington, D.C., 1908–1909), 1:95, 148, 165Google Scholar.

10. Bill of Complaint, Mary Warren v. Eli Warren, Final Record, 1838–1849. Mary Warren made no effort to prove her husband's intemperance, but it was added as a statutory ground to the state's already liberal provision in 1838. Laws of Indiana, 1838, c. 31.

11. Bill of Complaint, Warren v. Warren.

12. Notoriously lenient on the enforcement and verification of residence requirements, Indiana became the symbol of easy divorce in the nineteenth century. William Dean Howells's A Modern Instance portrayed a migratory Indiana divorce that was based on Howells's personal observations of divorce in an Indiana county court. On the role of Indiana in easy divorce, see Wires, The Divorce Issue; Blake, Nelson Manfred, The Road to Reno: A History of Divorce in the United States (New York, 1962)Google Scholar; and Greeley, Horace, Recollections of a Busy Life (New York, 1883), 571–618Google Scholar. In the columns of Greeley's New York Tribune in 1860, Robert Dale Owen defended Indiana divorce policies against Greeley's assertion that the state was “a paradise of free lovers.” Greeley, Recollections, 571.

13. James Boyd White astutely depicts the application of a legal rule to an individual case as resulting in a starkly simple narrative. The Legal Imagination, abridged ed. (Chicago, 1985), 114Google Scholar.

14. Decree, January 1850, Warren v. Warren.

15. Bill in Chancery for Dower, March 1850, Final Record, 1838–1849. The disposition of the family dwelling is unclear from this evidence, but it is likely that it went to Mary.

16. On southern migration, see Foner, Eric, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party before the Civil War (New York, 1970), 48Google Scholar; Wiebe, Robert, The Opening of American Society: From the Adoption of the Constitution to the Eve of Disunion (New York, 1984), 131–39Google Scholar.

17. Many New York matrimonials specifically link the disappearance of a husband to the gold rush while others refer vaguely to “the west.” Mary Jane Cordier was remarried and had five children from her second union when her first husband, who she claimed “died in the mines,” reappeared and successfully sued her for divorce. On appeal, the court held that her search for him was not sufficiently diligent. Jean Hyacinth Cordier v. Mary Jane Cordier (1864), GA121, C-3, and (1866), GA114, C-2.

18. Faragher, John Mack, Women and Men on the Overland Trail (New Haven, 1979), 49–53Google Scholar.

19. Mary Hermann v. Nicholas Hermann (1857), GA268, H-2.

20. The cost of divorce in New York may very well have been defrayed by statutory provisions enabling poor litigants to sue without court costs or attorneys’ fees in civil suits. The judgment rolls do not indicate if a plaintiff sued under the special provisions for the impoverished. “Of the Bringing and Maintaining of Suits by Poor Persons,” Revised Statutes, 1829, vol. 2, c. 8, tit. 1, reiterated verbatim in the state's 1846, 1852, 1859, and 1875 revisions.

21. Evidence indicates that prostitutes were relied on as witnesses throughout the period under consideration. By mid-century, newspapers assailed the use of what was called hotel evidence. One editorial pointed to the rise of divorce rings with disreputable attorneys or “sharpers,” who in alliance with prostitutes undertook “all the dirty work” necessary for successful divorce actions. “Divorce Made Easy,” New York Times, October 10, 1869, p. 4; Blake, Road to Reno, 190–91.

22. On self-divorce, customary divorce, “besom divorce,” and wife-sale, see Menefee, Samuel Pyeatt, Wives for Sale: An Ethnographic Study of British Popular Divorce (New York, 1984)Google Scholar; Mueller, Gerhard O. W., “Inquiry into the State of a Divorceless Society,” University of Pittsburgh Law Review 18 (1957): 545–78Google Scholar; and Gillis, For Better, For Worse, 98–100.

23. Complaint, Hermann v. Hermann.

24. Most defendants failed to appear or to be represented, and after testimony by witnesses, their guilt was established “pro confesso,” as if they had confessed. Because service of a summons was often not possible, it was satisfied in both New York and Indiana by the publication of the impending suit for a period of weeks in the local press.

25. Examination, Anna Maria Steinbinger (named in the complaint as Maria or Mary Hermann), Hermann v. Hermann.

26. Answer, Nicholas Hermann, in ibid.

27. Decree, in ibid. The prohibition against the remarriage of the guilty spouse, usually reiterated in New York decrees, was controversial from its inception in 1787. The New York Council of Revision vetoed it, and the legislature passed it over the veto. Blake, Road to Reno, 65–66.

28. If they married in New York and subsequently had the validity of the marriage tested in the state courts, it would have undoubtedly been deemed illegal. Given the state of record keeping, however, and the religious nature of marriage rites, there was little to prevent marriage in another state or even within the state. Isabella Eddy, who was guilty of adultery in a divorce, remarried in the state only to be exposed when her second marriage failed, and her second husband won an annulment on the basis of her guilt and her subsequent remarriage. See the following cases from the Supreme Court of New York County: Edward Eddy v. Isabella Eddy (1865), GA131, E-l; on passing as man and wife in a second union, see, for example, Sarah Everitt v. William Everitt (1787), BA, E-1; Martha Haines v. Ezra Haines (1849), AL618, Lib 232; Elizabeth Creegan v. Bernard Creegan (1855), GA77, C-23; Theresa Girarden v. Emil Girarden (1858), GA271, G-2; Emma Broome v. John Broome (1852), GA9, B-2; Louisa Haskin v. William E. Haskin (1855), GA212, H-1; Cary Harris v. Mary Harris (1853), GA104, H-1. A spate of other cases involved defendants who assumed aliases in their second unions. As Carroll D. Wright noted, even by the 1880s, very few states had a comprehensive recording system for marriages. In Maryland, marriages celebrated far exceeded marriage licenses issued because marriage could take place either under a license or the publication of bans. A Report on Marriage and Divorce… 1867 to 1886, 18–19.

29. That Nicholas failed to pursue an annulment does not necessarily controvert his allegation that the marriage was unconsummated; it could reflect any or all of the following: his disinclination to use the legal process, his reluctance to pay its costs, and his determination to keep Mary's money.

30. In immigrant communities in particular and in the urban setting in general, where both male and female neighbors figure prominently as witnesses, lack of privacy emerges not only as a cultural phenomenon but as a result of physical crowding. In boarding houses, everyone seemed to know and care about everyone else's business.

31. Frederick Geisenhower, who served also as a witness, testified on cross-examination that Nicholas gave this as an explanation for his desertion. As a ground, it had a long history. John Boswell notes that bad breath was permitted as a cause for divorce in the thirteenth-century crusader Kingdom of Jerusalem. See The Kindness of Strangers (New York, 1988), 346–47 n. 83Google Scholar.

32. On the links between legal doctrines on divorce and a companionate marital ideal, see particularly Griswold, Robert L., “Law, Sex, Cruelty, and Divorce in Victorian America, 1840–1900,” American Quarterly 38 (1986): 721–45CrossRefGoogle ScholarPubMed; and idem, “Marital Cruelty and the Case for Divorce in Victorian America,” Signs 11 (1986): 529–41CrossRefGoogle Scholar.

33. Evidence includes allusions to aliases, transfers of property out of state, and documentation of long-term, second unions. Although it is likely that in collusive divorces, couples agreed that the wife would serve as the plaintiff, that does not mean that the initial decision to divorce was symmetrical.

34. This point owes much to Lebsock, The Free Women of Petersburg, 67–72.

35. Martha Codd v. Mathew Codd (1833), BA, C-40.

36. Gillis, For Better, For Worse, 199.

37. Lavinia Moore v. John Moore, August 1850, Final Record, 1838–1849.

38. Samuel R. Caring v. Harriet Caring, 1822, Civil Order Book, 1819–1827.

39. Salmon, Women and the Law of Property, 58–59.

40. Indiana Revised Statutes, 1852, vol. 2, c. 4, s. 22 stipulated: “The decree for alimony to the wife shall be for a sum in gross and not for annual payments, but the court in its discretion, may give a reasonable time for the payment thereof, by instalments, on sufficient security being given.”

41. Sophia Dandy v. Timothy Dandy (1821), BA, D-299.

42. For judicial scrutiny of the wife's behavior in awards of alimony, see Basch, Norma, In the Eyes of the Law: Women, Marriage, and Property in Nineteenth-Century New York (Ithaca, 1982), 94–95Google Scholar.

43. The pattern of alimony awards in the two jurisdictions seems to suggest that the degree of support given to the wife was related inversely to the liberality of the grounds, or to put it another way, the closer divorce came to contemporary “no-fault” standards, the less the likelihood of alimony.

44. When John De Peyster Douw separated from his wife Margaret in 1843, the couple entered into a tripartite separation agreement with Margaret's father, Stephen Van Rensselaer. The wife took custody of a five-year-old daughter, the husband of a four-year-old son. Van Rensselaer agreed “to idemnify the husband against the support of the wife that the wife might live where she saw fit.” The wife agreed “to execute any deed of her husband's land that he might require.” Their agreement emerged in Douw's subsequent suit for a divorce. John De Peyster Douw v. Margaret S. Douw (1853), GA78, D-l. For similar legal forms, see Ferrell, Joseph S., “Early Statutory and Common Law of Divorce in North Carolina,” North Carolina Law Review 41 (1963): 620–21Google Scholar.

45. Answer, Emma D. Barron v. John M. Barron (1864), GA62, B-3. John's attorney asserted that Emma stated “she would rather be hanged” than live with John in Baltimore, and if he wanted to live with her, it would have to be in New York. Part of the case hinged, then, on the critical issue of domicile.

46. In New York divorce was restricted to courts with equity jurisdiction until 1848, when in accordance with the constitution of 1846, law and equity were merged. Thus the master in chancery and the referee performed the same functions in the two periods.

47. Referee's Report, Barron v. Barron.

48. Trow's New York City Directory, 1865, vol. 78, Commercial Register, 58.

49. Answer, Barron v. Barron.

50. Lydia Catlin v. Charles Catlin (1866), GA93, C-1.

51. Trust Deed, Exhibit A, Peter Bolenbacher v. Amelia Bolenbacher, August 1850, Final Record, 1838–1849. Exhibit B is a copy of a special legislative act sent by the Secretary of State to the Clerk of the Monroe County Court permitting Peter to file for divorce “without regard to the length of time the said Bolenbacher has been a resident citizen of this state.” Bolenbacher's petition, moreover, acknowledged that Amelia brought $300 to their marriage.

52. Complaint, Matilda Langdon v. Samuel Langdon, 1847, Final Record, 1838–1849.

53. Bill of Exceptions, in ibid.

54. Decree, in ibid.

55. Paula Petrik underscores this problem in a study of Montana divorces. See “If She Be Content: The Development of Montana Divorce Law, 1865–1907,” The Western Historical Quarterly 18 (1987): 261–91CrossRefGoogle Scholar. For women's alignment with and economic reliance on kin in the divorce process, see also Motz, Marilyn Ferris, True Sisterhood: Michigan Women and their Kin (Albany, 1983), 28, 122–24Google Scholar.

56. On the spectrum of litigants, see Petrik, “If She Be Content”; Griswold, Family and Divorce in California; and Friedman, Lawrence M. and Percival, Robert V., “Who Sues for Divorce? From Fault through Fiction to Freedom,” Journal of Legal Studies 5 (1976): 69Google Scholar.

57. Mary Jane Humphrey v. Silas Humphrey, 1844, Final Record, 1838–1849.

58. New York plaintiffs consistently cited desertion, intemperance, and cruelty in divorce petitions although they were not statutory grounds. What is particularly convincing in many allegations of desertion is the specificity with which plaintiffs and their witnesses documented desertion, especially when it entailed a long-term relationship with a paramour.

59. Griswold, “Law, Sex, Cruelty, and Divorce.”

60. Michael Grossberg argues that in the long run, legal control over the child passed from the father to the judiciary. See his article, “Who Gets the Child? Custody, Guardianship, and the Rise of Judicial Patriarchy in Nineteenth-Century America,” Feminist Studies 9 (1983): 235–60CrossRefGoogle Scholar.

61. On the prevalence of desertion as a ground, see Wright, A Report on Marriage and Divorce… 1867–1886, 168–69. The absence of children may reflect the brevity of some marriages and the long duration of others, but there is no distinct pattern in either jurisdiction with respect to the number of years litigants had been married.

62. Henrietta Heine v. Solomon Heine, (1841) BA, H-256; Answer, in ibid.

63. For an analysis of the wife's moral responsibility in the culture of the early republic and her concomitant powerlessness in the face of evil, see Lewis, Jan, “The Republican Wife: Virtue and Seduction in the Early Republic,” William and Mary Quarterly, 3d ser., 44 (1987): 689–721CrossRefGoogle Scholar. Although motherhood took precedence over wifehood by the 1820s, thereby marking a transition in domestic ideology, the attributes of the ideal republican wife continued to permeate nineteenth-century popular culture and to shape those reform movements in which women aimed to improve the morality of men.

64. Griswold, Family and Divorce, 120–40.

65. On the confluence between formal law and community norms, see Salmon, Women and the Law of Property, xii–xiii.

66. For extensive documentation of women's willingness to use legal resources, see Lebsock, The Free Women of Petersburg.

67. Friedman, Lawrence M., “Rights of Passage: Divorce Law in Historial Perspective,” Oregon Law Review 63 (1984): 649–78Google Scholar.

68. Amy Champlin v. Guy Champlin, alias dictus Elisha Hinman, alias dictus Henry Hull (1827), BA, C-10.

69. Charles Henry Edwards v. Amanada M. F. Edwards (1842), BA, E-75.

70. Charles Augusthuys v. Rachael Augusthuys (1854), GA7, A-1.

71. Griswold, Family and Divorce, 82–83.

72. Barbara Ehrenreich uses the phrase in The Hearts of Men: American Dream and the Flight from Commitment, (Garden City, N.Y., 1984)Google Scholar as a baseline from which to explore post-1950s departures from the breadwinner ethic. For the nineteenth century, Christine Stansell notes the assumption that marriage was a bargain in which “men provided their wages in exchange for women's help and domestic services” applied not only to working-class marriages but also to middle-class marriages. The latter differed from their working-class counterparts in fusing these practical considerations with a celebration of romantic love. Stansell, Christine, City of Women: Sex and Class in New York, 1789–1860 (New York, 1986), 77Google Scholar.

73. Copy of Letter, Mary Ann Helen Bunner v. F. Charles Bunner (1835), BA, B32.