The First Divorce

Editor's Note: Vermont Legal Historian Paul Gillies has volunteered from time-to-time to contribute summaries of some more noteworthy historical cases to our blog.   Today Paul presents us with the first divorce in Vermont.  

By Paul Gillies

            The Vermont Supreme Court in 1779 (then called the superiour court) had "cognizance of all pleas of the state, that relate to life, limb or other corporal punishment: also fines, banishment and divorce; and shall have power to hear and determine the same by jury, or otherwise according to law, and award execution accordingly."  That's from the first judiciary act of 1779, enacted in February of that year.  That summer, the Court met in Rutland on June 10, and heard and decided the first divorce in the state's history. 

            This was their fourth meeting since the creation of the court, in its first term—their sixth day on the bench.  Chief Judge Moses Robinson, and side judges (yes, that was the name of the office) John Throop, John Fassett, and Thomas Chandler had three items on the agenda that day—admitting the third lawyer in the state to practice; a trial by jury of Hilkiah Grout, of Weathersfield, for conspiracy and treasonable conduct against the State by pretending to be a JP and administering oaths to several people without authority (conduct described in the decision as "wicked" and "flagrant"); and finally, a divorce.

            By the way, we're reading from Slade's State Papers (1823), on a page located near the end of this brown, cowhide-covered, much used, and wonderful book, where the first records of the court are printed.  Just a few pages appear here.  The next reported set of decisions after 1779 skips all the years up to 1789.  Chipman's Reports and Dissertations, published in 1793, started with that year, so this book contains not only the earliest records of the court, but our sole published look at how it worked for another 14 years.

            This particular book, which I am using, shows in the front flyleaf that it was once owned by A.B. Childs. A.B. Childs appears in a Google Books' search several times. In FACTS, a spiritualist magazine printed in Boston in 1882, a man named Warner tells how he told a Brattleboro medium, Mrs. William H. Adams, how upset Childs was over the loss of a paper proving he was insured.  Mrs. Adams went into a trance, and Childs mysteriously appeared and told the medium where the papers could be found.  Warner, incredulous, went back to Childs, told him the story, and Childs quickly located the missing documents.  The A. stands for Adnah, and he was born in Wilmington in 1799, was the first merchant in that town, and 24 years its postmaster.  He helped found the Universalist Society, and the Wilmington Cemetery Association.  With his wife Hannah, they had 12 children. They were married 46 years.  He owned this book.

            Back to the book.  The lawyer was admitted—Nathaniel Chipman, around whom the history of Vermont, the law, and the court would later turn—and the jury found Grout guilty, and the court charged him a fine of £181 14, sending a clear message to any who would be tempted to pretend to be a Justice of the Peace and give false oaths in the state thereafter that this behavior was not to be tolerated.  Finally, the judges turned their attention to the divorce.

            If you go back to the first paragraph and see how the jurisdiction of the court was defined to include divorce with crimes punished by corporal punishment, fines and banishment, you might get a sense that divorce was not understood as something to be lightly granted.  But the law was really quite liberal for its day.  New York didn't allow divorce until 1787, and South Carolina not until well after the civil war.  Divorce for adultery was the law of Connecticut in 1779, and the source of the Vermont law.  Divorce wasn't legal in Chile until 2004 and Malta, the last nation to prohibit divorce, votes a referendum on allowing it this spring.

            The last name of the couple does not appear in the record of the court in 1779.  The wife is named Phœba, the husband remains unnamed.  He was the victim, after all, of a wife who strayed.  She was "taken in adultery."  Even the name of her lover is excluded.  Listen to the ruling:

            By virtue of authority granted to this superiour court, grounded on the sure and unerring word of GOD, we have thought fit, in consequence of Phœba, heretofore your lawful wedded wife, being taken in adultery, with _______, to divorce and release you the said __________ from the said Phœba; and do hereby release you from that most sacred obligation contained in the marriage covenant, and from all and singular the effect or effects thereof, and separate you the said ________ from the said Phœba in every respect wherein the marriage covenant had joined you, and each of you, together—You are, therefore no more one, but twain.  What the laws of GOD and man have put asunder, let no man join together.

            Man, that's good.  They took those familiar words, which are included in the traditional marriage ceremony and turned them around.  "Wherefore they are no more twain, but one flesh.  What therefore God hath joined together, let not man put asunder."  That's from Matthew 19:6, where Jesus answers "no" to the question of whether a man can "put away his wife for every cause."  This is the Biblical prohibition against divorce, but later, in verse 9, there's a caveat.  "Whosoever shall put away his wife, except it be for fornication, and shall marry another, committeth adultery; and whoso marrieth her which is put away doth commit adultery." It's a deep stain that doesn't stop running from marriage to marriage, in this view of divorce.  Divorce has consequences.  In 1936, the Vermont Supreme Court ruled a marriage contracted within three years of a divorce invalid, enforcing the nisi period in place at the time.

            I want to know where the court got that language.  The judges could have read the book of Matthew, or maybe individual judges had that part memorized.  Blackstone has a couple of pages on divorce, but nothing there suggests this wording.  Back in February of 1779, the Vermont General Assembly had enacted a law on the subject, authorizing the superiour court to grant divorces for "adultery, or fraudulent contract, or wilful desertion for three years, with total neglect of duty; or in case of seven years absence of one party, not heard of. . . ." But the form of the grant of divorce was not included in the act, so the court was in the position of having to fashion something sua sponte. 

            Blackstone, by the way, describes how canon law forbids divorce, as distinguished from the civil law, "which is partly of pagan origin," which allows it.  Of the causes, writes the commentator, "adultery is the principal, and with reason named the first." Such a divorce was a vinculo matrimonii, final and complete, as opposed to divorce a mensa et thoro (from bed and board, a version of separation). In the latter, dower is retained as a right of the spouse; in the former, all rights of marriage are severed.

            James Kent, in Book II of his Commentaries (1826), traces the history of divorce back to the Greeks, citing Plutarch's Life of Alcibiades, with approval for requiring divorce to be a public event, to allow a husband "the opportunity of treating with her and endeavoring to retain her." Kent found Greek practices exemplary in comparsion with the Romans, whose "abuse of divorce" he suggests was one reason for the fall of the empire.  Justinian sanctioned divorce by mutual consent, and only the arrival of Christianity "finally subdued," as Kent says it, the liberty of divorce.  For most of the Christian era, divorce was sin, except in cases of adultery. 

            Back to the point of the inquiry here: where did "What the laws of GOD and man have put asunder, let no man join together" come from?  Net searches reveal contemporary sermons that use the phrase to apply to a variety of subjects, but all of them are much later in time than the order of 1779.  In 1887, the phrase "What GOD has put asunder, let no man join together" was used to justify white supremacy, by Henry Woodfin Grady, in a speech at the Dallas State Fair entitled, "What of the Negro?" James Madison used it to describe the separation of church and state. In 1862, a sermon of the Scottish minister Thomas Adams was published in which he even translated the phrase into latin—quæ Deus separavit, nemo con jungat.  Clairvoyant John William Fletcher repeated it during one of his trance addresses about women's rights and marriages made without love or sympathy, in the 1880s.

            It's not that these later users of the line were even aware of the 1779 order.  There doesn't appear to be any common source.  Each writer or speaker reinvented the phrase when it proved useful to explain a position, using the converse of the gospel injunction.  The Vermont Supreme Court may claim first use, but it has no intellectual property interest in the words.

            Enough analysis.  Let's enjoy the order for its poetry, its originality, and its biblical authority.  It talks directly to __________, the husband, and ends the marriage flatly.  No nisi period.  No appeal.  No more dower for Phœba.  Divorced.  Over.  Done.

            At the end of the day, the court adjourned for a month's recess, its duties finished.