Loren Schweninger - Families in Crisis in the Old South: Divorce, Slavery, and the Law

Given current attitudes toward marriage and divorce, it is difficult from todays perspective to understand the critical societal role of marriage and the importance people attached to the family two centuries ago. Unfortunately, for the time period of this study, between the 1780s and the 1860s, there are no precise statistics for marriage and divorce in the United States, but Michael Grossbergs estimate that about 90 percent of all men and women in the country during the nineteenth century married at one time or another is probably correct. In the southern states, there is little doubt that the vast majority of the white population lived in husband-wife-children-kin households.

With most of the population engaged in labor-intensive farm work, children were needed not only to assist in the fields but also to ensure the continuity of the family patrimony. In addition, ministers, politicians, jurists, authors, businessmen, elected officials, and local leaders heralded the family as the centerpiece of democracy, the cradle of morality, and a nursery of patriotism. In 1833, a North Carolina lawmaker declared that social relationships among family members constituted the cement that held the country together. Indeed, he asserted, what else is it but the social ties of family connections, when rendered happy and prosperous by their own industry that stamps a value upon society. In a similar vein, an Alabama chancery judge prefaced an 1848 decree with his belief that the source and fountain of all social virtue is in the family union. Marriage made up the great community of mankind, provided the bedrock for all earthly ties, and created a great chain that binds society together in harmony, peace, and happiness.

Divorce, on the other hand, was viewed as a form of madness, bringing disgrace and dishonor upon a couple and depriving children of the greatest earthly advantage, the nurture and admonitions of a parent. One member of the legislature of the Territory of Orleans asserted that divorce reduced communities to the lowest ebb of degeneracy. It undermined fundamental societal principles, violated all the original institutions of nature, and should not be tolerated, even under the worst of circumstances. In a volume titled Marriage Indissoluble and Divorce Unscriptural, a Virginia Presbyterian minister added that God made Adam and Eve of one flesh and husbands and wives should remain together until death.

Despite these attitudes and pronouncements, the number of southerners seeking to end their marriages rose steadily during the antebellum era. In the early period (17861829), increasing numbers petitioned their general assemblies, and during the late period (183067), even greater numbers, certainly in the thousands, brought their causes, as civil suits were called, to the chancery, or equity, courts. Of course, many couples lived apart without filing formal papers, as husbands or wives abandoned their families, or spouses separated by mutual consent. This was especially true of people at the bottom of the economic spectrum who often could not afford to hire a lawyer or, perhaps distrustful of the legal system, did not wish to submit grievances to assemblies or the courts. Historians have correctly pointed out that self-divorce and remarriage, or bigamy, was probably one of the least prosecuted and most common crimes of the period.

Neither societal taboos against broken marriages nor the unwillingness of many people to expose themselves financially or legally to the process of dissolving their unions diminishes the importance of studying divorce in the Old South. As this study will demonstrate, the decision to seek legal dissolution of ones marriage could not be made lightly; the law required that it be supported by persuasive arguments of domestic turmoil and proven by verifiable charges of violation of the marital bonds, a process that entailed a thorough and unsparing look into the domestic lives of those suing for divorce. It was an adversarial process that made it necessary to uncover the intimacy of family life and to draw in all members of the household, free and enslaved alike, in order to obtain the desired outcome. It demanded of those who decided to go forward not only that they overcome their reluctance to initiate action but that they withhold no details in prosecuting it. As a consequence, divorce offers a penetrating view of one crucial aspect of society in the Old South: families in crisis.

This study examines, analyzes, and summarizes the wealth of information about the domestic life of families in crisis found in a small but representative group of divorce, separation, and alimony cases, drawn from every southern state and most geographic regions within each state and from virtually every year during the first six decades of the nineteenth century (see Appendix 2). The collection includes cases presented by 610 white women, 123 white men, and 35 free persons of color from a total of 211 counties in the 15 slave states and the District of Columbia. In one way or another, all of the cases are connected with race and slavery. In fact, many of the cases were filed by women of the slaveholding class. Not only did these women have the financial wherewithal to hire lawyers and prosecute suits more readily than those with less means, but as members of the most prosperous group in the region, they had the most to lose if their families split apart.