Divorce in New York I, circa 1829
Bill Long 1/9/06
A burning debate in the history of legal philosophy is whether law is supposed to be an expression of the moral sentiment of the community or whether law and morality are quite separate from each other. Posed in this broad way the question is unanswerable, because certainly some statutes (such as prohibitions of murder) do reflect the moral abhorrence of taking another's life while other laws (such as the need for certain professionals to renew their certifications every few years) are probably "good ideas." Nevertheless, the relationship of our legal codes to our moral or religious beliefs is one of the fascinating, and oft-debated, questions in law.*
[*The debate is between the postivists/realists and the natural law philosophers. OW Holmes, Jr., for example, in his famous 1897 law review article "The Path of the Law," argued for the separation of the two. In this he was following the great originator of positivism, Jeremy Bentham (1748-1832). The natural law tradition would argue, following Thomas Aquinas, that postive (enacted) law is a reflection of the moral law.]
Those who advocate a close connection between law and morality could do no better than point to New York's "pure" divorce law, which was first passed in the 1780s and still in force when the New York laws were first codified in a three volume collection in 1829. These "Revised Statutes" of New York are quite difficult to get your hands on, but I had a chance to study them while in the Law Library of Congress (in the LoC in Washington DC) last week. This spacious library, housing the largest collection of law-related materials in the United States, was nearly empty of patrons when I decided to devote myself to ferreting out this 1829 collection on 1/6/06. There was not sufficient time for the library staff to get the volumes themselves; I contented myself with reading the statute on microfilm.** This and the next two essays will describe this law--
[**The divorce statute appears in Vol. 2 of the collection. Noteworthy is the fact that the company contracted to make the microfilm in this case actually made a mistake--copying pages 135-136 twice and neglecting to copy pages 137-138. The statute at issue, however, begins on p. 142.]
one of the significant divorce laws in the states at the time. To show how closely tied it is to a biblical or moral perspective on divorce, however, I should start with quoting a few words of Jesus.
Jesus on Divorce
Jesus' teaching was normative not only for the early Church but for subsequent generations of his followers. He spoke of divorce only in three passages. One of them, Mark 10, seemingly prohibits divorce under all circumstances:
"9 [Jesus is speaking] 'Therefore what God has joined together, let no one separate.' 10 Then in the house the disciples asked him about this matter. 11 He said to them, 'Whoever divores his wife and marries another commits adultery against her; 12 and if she divorces her husband and marries another, she commits adultery...'" (Mk. 10:9-12).
But an exception creeps in to this rigidity in Matthew's account of this passage and one other. The disciples asked Jesus why Moses permitted people to divorce in Old Testament times. Jesus answered:
"'8 It was becasue you were so hard-hearted that Moses allowed you to divorce your wives, but from the beginning it was not so. 9 And I say to you, whoever divorces his wife, except for unchastity, and marries another commits adultery'" (Matt. 19:8-9).
This advice is consistent with Jesus' words in the Sermon on the Mount, earlier in Matthew's Gospel:
"'31 It was also said, 'Whoever divorces his wife, let him give her a certificate of divorce.' 32 But I say to you that anyone who divorces his wife, except on the ground of unchastity, causes her to commit adultery; and whoever marries a divorced woman commits adultery" (Matt. 5:31-32).
What Did Jesus Mean?
The question of what Jesus meant by these words in Matthew ("except on the ground of unchastity") really is two questions. We might ask what might these words mean from the perspective of modern scholarship. But, the more important question to ask is what these words seemed to signify to average readers in the late 18th century, when NY's divorce statute was passed. With respect to the first, this article gives five possible modern meanings of the phrase "except on the ground of adultery," before concluding that it probably had to do with prohibiting marriage within the certain degrees of consanguinity. But in order to understand a late 18th century reading of the term, we need to see the words in the Bible they would have read: the King James Version. That version reads as follows:
"31 It hath been said, Whosoever shall put away his wife, let him give her a writing of divorcement. 32 But I say unto you, That whosoever shall put away his wife, saving for the cause of fornication, causeth her to commit adultery: and whosoever shall marry her that is divorced committeth adultery," (Matt. 5:31-32).
That is, the KJV took the phrase "peri porneia" to mean "for the cause of fornication." This would mean an extra-marital relationship, which would naturally have been construed as adultery, even though the word is different from the word translated as adultery in v. 32 (moicheia). An 18th-early 19th century person, therefore, would have thought that Jesus was teaching that the only legitimate ground for divorce would have been because of (the wife's?) adultery. Read more broadly, Jesus seems to permit only adultery as a ground for divorce.
Conclusion--Getting to the NY Statute
The NY divorce statute, reflecting the teachings of Jesus, only permitted divorce because of adultery. But the statute was much more complex than that, too. The next essay will show that the statute is divided into three parts: (1) how a marriage may be voided (i.e., declared of no effect; (2) how divorce was possible; and (3) how a more narrowly-tailored option, the "limited divorce" or "separation" was conceived. By understanding the New York experience in this period, we really understand the dominant attitude towards divorce and separation in America for most of our nation's history.
Copyright © 2004-2009 William R. Long