TNGenWeb, Tennessee Law, The Early Days. Divorce.

Editors note: This paper has been adapted from the Introduction found in her book, Tennessee Divorces 1797-1858, Taken from 750 Legislative Petitions and Acts* by Gale W. Bamman and Debbie W. Spero, and is published here with permission.

INTRODUCTION
Divorce was the last resort for unhappily married persons in the early 1800s because of the ensuing shame, embarrassment, and ostracism. Nevertheless, when a marriage could no longer be tolerated, a divorce was sought, either through the courts, or by petitioning the Tennessee General Assembly for a decree.

Only a small number of divorces were sought by petition to the General Assembly, 1797-1858. The others were brought before the superior courts between 1799-1809, then from 1809-1835 in the circuit courts, and since 1835, either in the circuit or chancery courts.

A Few Words of Caution

1. Do not assume that the surname that the female requested to use at the dissolving of the marriage was her maiden name. We found many mentions of second marriages of widows and widowers.

2. Do keep in mind that the accused party was given no chance to make a statement in his/her own defense when the petition was reviewed by the Legislature. A petition may be may be entirely accurate or only partially accurate. Certainly statements by neighbors and relatives, as well as many accompanying signatures, tend to add credibility to some petitions. But, for an example of opposing statements, read the petitions of David McNabb and Peggy McNabb.

MCNABB, DAVID. MAY 1822. CARTER COUNTY
“Last winter . . . (David) . . . was called from home to transact business in the Cherokee country . . .” While he was gone, his wife, MARGARET McNABB, took up with William Owins of North Carolina and went off with him to Wilksborough, left David with three small children.
Statements by John McInturff, Voelit Swaner, Lucinda Dunkin, and George Slagle.

McNABB, PEGGY. 1822. CARTER COUNTY
In January 1822 Peggy’s husband, DAVID McNABB, took up with Jane Matticks. He moved from Carter County where Peggy lived, to Monroe County, 150 miles away. David and Jane had several children, Peggy heard.
Petition includes a few signatures.

3. When the words “upon proof” accompany the Legislature’s decree, the divorce was not considered final until final proof was presented in court, and the case tried there.

EARLY TENNESSEE DIVORCE LAWS
The United States Constitution left complete authority over marriage and divorce legislation to the separate states, and the first state constitutions, by omitting the subject, left the matter of divorce to the legislatures. Thus each state had the freedom to develop its own divorce legislation.¹ In 1799 the Tennessee General Assembly gave authority to grant divorces to the superior courts, located in the districts Mero, Hamilton, and Washington. However, both prior to this act and until 1835, divorces and privileges of feme sole were granted by the General Assembly.² (Feme sole is a term used to indicate a single woman whose marriage has been dissolved by death or divorce, and also a woman who has been judicially separated from her husband.)³ The researcher seeking information on a divorce in Tennessee between 1796 and 1835 should be aware that although a great majority of the divorce cases were heard in court, a large number of divorce and feme sole petitions were brought before and were acted upon by the Tennessee Assembly.

Valid grounds for divorce in 1799 were:

a) Impotence, or bring incapable of procreation;
b) When the marriage partner knowingly entered into a second marriage, “in violation of a previous vow made to a former wife or husband, whose marriage is still subsisting;”
c) Adultery;
d) “Wilful and malicious desertion or absence without reasonable course, for the space of two years.”⁴
It was further enacted in 1799 that “if any husband or wife upon false rumor, apparently well founded, of the death of the other, (where such a person has been absent for the space of two whole years) has married or shall marry again, he or she shall not be subject to the pains of adultery, but it shall be at the election of the party remaining single, at his or her return, to insist to have his former husband or wife restored, or to have his or her own marriage dissolved, and the other party to remain with the second husband or wife, if the suit is instituted within one year after such return.”⁵

The person requesting a divorce had to meet certain conditions:

a) He or she must have been a resident of the State of Tennessee for at least one year prior to the filing of the petition;
b) The petition had to be presented along with an affidavit, taken upon oath before the judge of the superior court or before some justice of the peace in the county where the petitioner resided, that the facts contained in said affidavit were true, and said petition was not made out of levity.
c) A woman could not petition in her own name, but had to petition by her “next friend.” (A married woman in this time period of 1796-1836, suffered the civil disability of being unable to sue in her own person.)⁶

Consequently, if a woman wished to instigate a divorce suit in the courts, she had to find some male to represent her there, perhaps an attorney, but certainly someone who could and would accompany her to the court where the suit was to be heard. Since the court where may not have been in the county in which she lived (prior to 1809), that may have placed a hardship on her. Additionally, there would have been financial costs involved in a court suit.

There was another avenue open to her, however. She could send a written petition to the Tennessee General Assembly, where it would be read by the representative from her county.⁷ The petition would then be referred to a committee (in 1797, the Committee of Propositions and Grievances) for consideration. Upon the committee’s recommendation, a bill would be drawn up and then would on three occasions be read in both the Senate and the House. If the bill passed, it was then enrolled.⁸ The enactment would subsequently appear in the Acts of Tennessee.⁹

The General Assembly took one of four approaches to a bill and petition for divorce or feme sole:

a) It dismissed the petition, and refused to act upon it; or

b) It decreed a divorce from bed and board, in which instance the woman was granted the privileges of feme sole.

In addition to the grounds listed earlier, the following were grounds for legal separation:
1) Malicious abandonment of a wife, or turning her out of doors;
2) Cruel or barbarous treatment endangering her life.
3) Offering such indignities to her person as to render her condition intolerable and thereby forcing her to withdraw.¹⁰

c) It decreed that the marriage dissolved. However, if the divorce had been granted because of adultery, the person who had been guilty could not marry, during the life of the former husband or wife, the person with whom the said crime was committed. If it was the wife who had been guilty of adultery and if she was proven even to cohabit with said person, she could not then alienate her property.¹¹

d) It recommended a divorce upon proof, in which case the divorce suit had to be taken to court.

In 1807 the General Assembly repealed the Act of 1799, and then revived it in 1809, changing the jurisdiction of divorce cases from the superior courts to the circuit courts, and specifically, the circuit court of the county where the petitioner resided at the time of filing the petition.¹²

In 1819 the laws were further amended, and an additional ground for divorce was added.

“If a woman shall be in a state of pregnancy with child of color at the time of marriage, it shall be lawful for the circuit court to grant a divorce.”¹³
When the Tennessee Constitution was rewritten in 1835, the circuit courts and chancery courts were given the SOLE jurisdiction over divorces. The jurisdiction of the Legislature in granting divorces or feme soles was REMOVED, and its authority in such matters was reduced to the degree that it “may authorize the courts of justice to grant divorces for such causes as may be specified by law, but such laws shall be general and uniform in their operation throughout the state.”¹⁴

After 1835, petitions for divorce, though reduced as to number, continued to be presented to the General Assembly, but no decrees were made on these.

AUTHOR’S NOTE
My remarks and interpretations of early laws have been reviewed by C. Edward Coomer, Attorney at Law, Nashville Tennessee.
Gale W. Bamman
Certified Genealogist
June 1985

END NOTES
1. The Encylopedia Americana, (Danbury, Connecticut: Grolier, Inc., 1984), Vol. 4, p.215.
2. Tennessee Code, Annotated, (Charlottesville, Virginia: The Michie Company, 1980), Vol. 1 Constitution, Art. XI, Section 4. P. 737.
3. Henry Campbell Black, Black’s Law Dictionary. (St. Paul, Minnesota: West Publishing Company. 1951), p.745.
4. Acts of Tennessee, 1799, Chapter XIX, Section 1, p.48.
1. Ibid., Section 5, pp.49-50.
6. Ibid., Section 2, p.48.
7. See example in Senate Journal, 1825. p.69.
8. See example in Senate Journal, 1797. pp.57, 60, 68, 70, 77, 78.
9. See example in Acts of Tennessee, 1799, p.92.
10. Acts of Tennessee, 1799, Chapter XIX, Section 9, p.52.
11. Ibid., Section 6, p.51.
12. Acts of Tennessee, 1809, Chapter LXLVIII, Section 1-2, p.217.
13. Acts of Tennessee, 1819, Chapter XX, Section 2, p.45.
14. Tennessee Constitution, Article XI, Section 4.

CREDITS
For the generous help and assistance that we received at the Tennessee State Library and Archives, we wish to thank Fran Schell, Reference Librarian, Marylin Bell, Senior Archivist, and Florence Langford, Assistant Archivist.

*Tennessee Divorces 1797-1858, Taken from 750 Legislative Petitions and Acts, may be purchased from Bryon Sistler and Associates.

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Divorce in Early Tennessee