The Proposal, an oil on canvas painting by John Pettie, 1869. Image courtesy of Public Domain, via Wikimedia Commons.
Last May, we examined a selection of court cases that evoked the ancient superstition, “Marry in the month of May, and you’ll surely rue the day.” This May, we discuss more cases we’ve discovered that illustrate various types of legal controversies involving marriage in colonial and early American Connecticut.
When quoting from documents, we will use the actual spelling, including transcriptions of individual words as necessary. (For more information about colonial spelling practices, see The Standardization of American English at teachinghistory.org.) In certain circumstances, we will add missing letters to abbreviated words or substitute modern spelling in brackets to enhance reader comprehension.
Given that married women in colonial and early American Connecticut were legally dependent on their husbands under the principle of coverture, they were in danger of being reduced to poverty when they were widowed.
In Connecticut, conditions were particularly harsh for women when it came to property rights. “[M]arried women in Connecticut had no property rights at all until the second quarter of the eighteenth century. Men had absolute rights to their wives’ realty as well as personalty under rules of law that deviated sharply from the laws of England... [In addition,] widows of Connecticut men held fewer dower rights than widows elsewhere. They could claim only shares in what their husbands owned at death, and therefore they had no right to control the sales or mortgages of husbands’ lands during marriage” (Marylynn Salmon, Women and the Law of Property in Early America, p. 122).
Under these already abysmal circumstances, it was even worse for abandoned wives with still-living husbands. As discussed in a previous post, towns were generally expected to support their impoverished inhabitants, so they often sued the absconding men for financial restitution:
The many papers from Rex vs. James Baldwin and Mary Wheeler, 1717
The Puritans who founded New Haven followed the Old Testament standard for adultery, which only applied to sexual acts committed with married women. (Cornelia Hughes Dayton, Women Before the Bar: Gender, Law, and Society in Connecticut, 1639-1789, p. 32)
Given that adultery cases were usually heard at the Superior Court level due to the legal severity of this crime, the following cases are technically for lesser offenses such as unchastity or lascivious carriage, the latter of which was prosecuted in Connecticut until 1971:
If a married man slept with a single woman, it was legally deemed fornication. While the penalties for this offense were not as steep as those for adultery, it was still considered a crime:
Regardless of this double standard for adultery, which “would remain on the books in Connecticut for two centuries” (Dayton, Women Before the Bar, p. 32), both men and women were concerned that rumors of sexual misbehavior would damage their reputations as well as their marriages, and took gossipers to court for slander:
Although this kind of lawsuit is now abolished in Connecticut, aggrieved spouses in the colonial and early national period had the option of suing their spouse’s paramours in court for alienation of affections. These grounds were invoked in cases ranging from seduction to rape:
Petition submitted to the County Court by John Fere, 1712
As discussed in a previous post, colonial Connecticut had some of the most liberal divorce laws in the Western world at the time. This was because Puritans believed that marriage was a civil contract, not a sacrament. If a marriage was deemed invalid in Connecticut—justifications were largely limited to adultery, abandonment, or fraud—it could be dissolved completely, giving both spouses the freedom to remarry. (Salmon, Women and the Law of Property, p. 61)
While divorce cases were handled at the Superior Court level, we have come across the following mentions of divorced spouses:
We also discovered a case of what appears to be extralegal separation:
Given that the Connecticut legislature did not consider cruelty alone as grounds for divorce until the 1780s and did not officially codify this principle into law until 1843 (Dayton, Women Before the Bar, pp. 107, 144, 156), there are several heart wrenching cases of battered wives suing for bonds of peace against their husbands:
According to Connecticut’s early marriage laws, couples had to publish their intention to marry, parents had to approve of the marriage, only licensed officials (e.g., magistrates, ministers) could perform marriages within their specific jurisdictions, and there were various types of kindred relations that were considered incestuous. The following case violated at least two of these tenets:
Writ from Linda M. Atwater vs. Wyllys Avery, 1810
Sometimes, couples couldn’t even make it to the altar without obstacles arising to thwart their intentions:
While the majority of these cases are tragic and often infuriating to contemplate, they stand as important reminders of the stark consequences of a society where divorce was difficult to obtain, women were legally dependent on their husbands, and there was a rigid hierarchy of authority that placed men as the absolute head of the household.
Yet we can also consider that court records do not—indeed, they cannot—tell the entire story of an epoch. The ideal of marriage as a loving and companionate partnership gained considerable traction in America after the Revolutionary War. Per Enlightenment philosophy, “[b]y the time societies reached the highest stage of development... women were no longer to be considered men’s slaves or playthings but were regarded as their friends and companions” (Rosemarie Zagarri, Revolutionary Backlash: Women and Politics in the Early American Republic, p. 48). However, as these court records demonstrate, this ideal was still very much a work in progress. “The romantic-love sentiments which had been conveyed in imaginative literature since the eighteenth century influenced women to hope for an ideal mate, although reality was always more contrary” (Nancy F. Cott, The Bonds of Womanhood: “Woman’s Sphere” in New England, 1780-1835, p. 76).
Despite the power imbalance between men and women, some marriages in the colonial and early national period still managed to be happy. Indeed, when Abigail Hempstead of New London died of complications after giving birth to her ninth child (who lived), her husband Joshua considered it a significant enough loss to note in his otherwise quotidian journal when other mothers in his community died and left children behind. But “[p]erhaps the most compelling sign of Joshua’s love for Abigail, and of his sorrow over her death, was the extraordinary choice he made once she was gone... Joshua was the rare widower who did not seek another wife—in a world where widowers with small children nearly always remarried, and usually with some haste” (Allegra di Bonaventura, For Adam’s Sake, A Family Saga in Colonial New England, pp. 183-184, 191-192).
On that note, we can reflect that the marriages in colonial and early American Connecticut which did prove loving, stable—or at the very least, tolerable for both parties—would not have cause to appear in any of the legal controversies documented here.
As noted in a previous post, the records for these cases, as well as several of the cases previously profiled in this blog, are currently in the process of being digitized. They will eventually be available for public viewing at the Connecticut Digital Archive (CTDA).
This project is made possible through funding from the Historic Documents Preservation fund of the Office of the Public Records Administrator. We also recognize the past support of the National Historical Publications and Records Commission (NHPRC).
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