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Ante-Bellum North Carolina: A Social History: Electronic Edition.

Johnson, Guion Griffis, 1900- 1989

CHAPTER VII COURTSHIP AND MARRIAGE CUSTOMS

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CHAPTER VII
COURTSHIP AND MARRIAGE CUSTOMS

           THERE WAS no institution in the ante-bellum South, not even slavery, about which there were so many prejudices as about the family. In the pulpit, on the oratorical platform, and in the legislative hall, speakers heralded the family as "the cradle of morality" and the "nursery of patriotism." In 1833 James Seawell declared before the General Assembly: "The social relations of family connections . . . constitute the most lasting cement of the political permanency of any country. Indeed, 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?" 1

The Legislature jealously guarded the family relationship and the few legal changes which occurred in the period came slowly. A glance at the laws alone, however, gives a distorted picture of family life in ante-bellum North Carolina. Legislation was slow in meeting every-day needs, and custom pushed ahead to answer these deficiencies.

COURTSHIP CUSTOMS

           If a young man wished to enter courtship under propitious circumstances, he first obtained permission from the head of the family. When an Edenton physician fell in love with fourteen-year-old Maria, her father being dead, he obtained her mother's consent before he "paid his addresses" formally to the young girl. 2

About to leave for Philadelphia for a long visit, he again sought the mother, this time for permission to write to Maria and extracted in return a promise that the girl might be permitted to answer his letters. The mother evidently considered the doctor a

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good catch, for Maria complained, in a letter to her lover, "I believe in my soul that mama would always keep me awriting." 3

           In deciding upon the eligibility of a prospective son-in-law, parents usually looked well to his family connections and his immediate wealth. 4

In 1846 Dr. James Norcom cautioned his daughter, Elizabeth, who was spending several weeks at Nags Head, a summer resort where one of her admirers was likely to appear, that she must not become engaged to a man who was unable to give her "a comfortable and respectable support."

           Dr. Norcom was of the opinion, and there were many who agreed with him, that a woman should never consider seriously the attentions of one beneath her social class. On writing to his son, James Norcom, Jr., concerning the marriage of a cousin, he said:



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           An eligible suitor was himself frequently looking for an eligible bride. 7

"It is now become too much the fashion of the day," objected "A Caswell Matrimonyist" writing in the Raleigh Register of October 12, 1809, "that when a young man is about to get him a wife, the first enquiry he makes, is, Has such a young lady much property; how much land does she own, and how many negroes?" If he is informed that she is rich but not pretty he replies, "Let beauty be hanged; property is my object."

           The desire to build up a large estate was sometimes the motive for the intermarriage of near relatives. When a gentleman of New Bern married a close relative in 1834, Frederick S. Blount wrote in disapproval, "He has made some considerable acquisition to his estate--but I must say that he has done it at the sacrifice of some very proper scruples, which any man of refinement must acknowledge, who marries a lady so nearly related to him." 8

The most famous case of the intermarriage of near relatives was that of the Reverend Mr. McQueen who in 1841 married the sister of his deceased wife. 9 He was promptly suspended from the functions of the ministry and from the communion of the Presbyterian Church and was not restored to his former position in the church until 1846 and then only by a majority of four votes. Such marriages were infrequent, and they were always considered objectionable. 10 In 1852 marriages "between persons nearer of kin than first cousins" were declared to be illegal. 11

           The opportunities for association between the sexes were too great to make the custom of obtaining parental consent prior to courtship a rigid one. In case a young man was forbidden to call on a young woman at her home, there were then, as now, ways of communication between the two. Even a strict disciplinarian who rigidly observed the proprieties of his day and kept a watchful eye on his daughters was not always successful in maintaining his authority. The eldest daughter of a distinguished Edenton physician



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defied her father by eloping with a young man whom he had forbidden her to see. 12

           Lemuel Sawyer of Camden County, several times representative in Congress, was not satisfied after the death of his first wife to wait "for the usual tedious process of courtship." A Washington acquaintance "informed me that he knew of a good opportunity of my being accommodated, as there were two sisters who occupied a part of the same house with his family. He offered to introduce me, and I accordingly accompanied him to the house, . . . I called again the next afternoon, and, observing the younger sister, . . . busily employed in the labor of the house, I approached her, and after a few preliminary remarks, opened at once the business of my negotiation. . . . I did not leave their door" until her parents "had given their approbation to the match. Thus, within three days after I first saw the young lady, she became my wife." 13

After the death of his second wife in childbirth, Sawyer determined in 1828 to marry again and made a visit to northern watering places with that in view. " . . . some friends undertook to make a match for me, and proccured [sic] a rich widow, a neighbor of theirs, who they judged would answer my purpose. . . . After an introduction and three short visits, we proposed in form, and they conducted the affair with such expedition that in three weeks I became married a third time. It was a desperate chance. I was poor and growing old, but my congressional dignity turned the scale in my favor; . . ." 14

           Young girls of marriageable age were by no means inaccessible creatures in ante-bellum days. A correspondent of the Western Carolinian found them in 1820 parading the streets of Salisbury, staring at the men "with a fixed and intent gaze." At first it was a shock to him to see the streets crowded with young girls, but he soon became accustomed "to encounter the gazers." "I take it as a matter of course," said he, "and always place my hat on one side, when about to pass in review before them. But my aunt Dorothy tells me it was not so when she was young; then, if the gentlemen wished to see the young ladies, they had to enter the house, where they found them employed either in reading or sewing;



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and 'thinks I to myself,' . . . they were better employed, than in giggling and gazing on the side-walk." 15

           It was within the bounds of propriety for a young man to take his sweetheart for a ride or to accompany her on a walk. They might be seen together at church or at the races, although it was customary for a young lady to accompany the family to a ball rather than to be escorted by her lover. Among the yeomanry, however, and even among the middle class the young men usually would "gallant the girls to the frolic." 16

           John Y. Mason, later Secretary of Navy, gives a vivid description of a lovers' stroll which he observed in Raleigh in 1816. "As I rode into the city," he wrote, "the first objects which struck my attention . . . were an elegant couple very familiarly walking arm in arm. On nearer approach I discovered them to be J-- T-- and E-- M--. Miss E. very politely invited me to call on her before I left the city. . . . The playful vivacity with which E. anticipated her beau, in every observation, which he wished to make during our short conversation, indicated the ascendancy which she had acquired over him. And the winning smile with which she apologised for her conduct, sufficiently manifested her partiality for him. . . ." 17

           The methods for winning the approval of the opposite sex were the same then as at present. Coquetry and dress were woman's stock in trade but to these she added other accomplishments. In 1810 a correspondent of the Star declared that women thought it was only necessary to know how to play the piano in order to get a husband. 18

About 1820 the newspapers were full of scorn for "that ape of female foppery, called a beau." "If you were to see one of our beaux by the side of his dulcina," said one writer, "you would think he proceeded by as many rules as a mathematician when making trigonometrical calculations. When walking into church, if he happen to accentuate the wrong leg, all is over for the rest of the week." 19 "Beau," "dandy," "coxcomb" were ante-bellum terms for what is variously termed today a

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"smoothie" or a "sweet papa." The "flapper" and "red-hot mamma" were formerly known as belles, "dulcinas," and "load-stones."

           The age-old custom of making and receiving gifts had lost none of its ability to win favor during the ante-bellum period. When J. Johnston Pettigrew, later a hero of the Confederacy, desired to present a young woman whom he had admired with a small piece of jewelry he accompanied it with the following note:

to which the young lady replied, in a formal note written in the third person, that she hoped Mr. Pettigrew would not leave the city "without affording her the opportunity of expressing in person the feeling which is so much better seen in action than in words. Should destiny deny her this boon, however, she will ever treasure the bracelet as a memento of one, whose character has long-since called forth her esteem and whose friendship she would be proud to win." 21

THE COQUETTE

           The coquette was fond of boasting of the number of her admirers, and she was even more fond of keeping them dangling while she enjoyed the sensation of being much sought after. 22

Young Theodorus of Lincolnton, in a series of letters to his brother, telling of the progress of his love affair with a belle of Columbia, South Carolina, gives, unaware, a lively description of the methods of an ante-bellum coquette. He fell in love with "the blue-eyed divinity" at first sight and repeatedly called upon her. "I have gone to her sisters purposedly [sic] to see and converse with her," he wrote to his brother. "I have spoken to her in such a way as to convince her beyond possibility of doubt to what point my attention tended[;] in short she knows that I will address her[;] yet damn me if I can determine with what kind of success

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my undertaking may be attended." 23 She smiled "most bewitchingly" on him and then shifted more of her attention to a certain Hammond whom the young lover thought for a while of challenging to a duel. Again she seemed to prefer Theodorus; she walked home with him from a party and gave him permission to call. On the appointed evening, he arrived only to find two others also present. "Nor would they leave" he wrote his brother, "until after eleven o'clock when my patience wearied and I left them. . . . God only knows when I will be favoured with an opportunity of addressing." The opportunity came a few days later when the young lady accompanied him alone in a gig with a party of others to Saluda Falls. The "address" and the response are better told in the lover's own words:

           She confessed today that she had the greatest esteem for me and considered herself favoured by my attention She begged me not to discontinue my attention on any account. . . . I mentioned every thing that was calculated to forward my undertaking [;] begged her to assign her reasons for rejecting me. Asked her if she had ever heard any thing that would tend to lower me in her estimation. To all this she replied that she did not feel a greater partiallity for me than some others. That she had never heard from any one vices alleged against me but on the contrary my character stood with her unimpeached--She said that I took her on surprise. I begged that she would then defer her answer untill time would enable her to determine an affair of so much importance. She answered that perhaps she would by so doing only excite hopes which she might never have it in her power to gratify. I told her then I awaited a decisive answer Yes or No I would be satisfied with nothing else She then answered that she thought I kneed [sic] never hope. . . . When we parted I pressed her hand and told her I would still continue to love her but that I hoped we would never meet again. Great God I was not dismissed even with a tear which I would have kissed away--Joe I am heartily tired of Columbia . . . send for me as soon as you get this. . . . That splendid gig of Fathers would not be greatly damaged by a summers trip of this kind. . . . Believe me every hour I now spend in this place would not be worsted by being spent in Hell. 24

           But the little coquette had no idea of dismissing him so soon. She left a comb and a white kid glove in his hat the afternoon of the proposal and the rejected lover called again, "determined



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therefore that the opportunity thus afforded should not be passed over." As soon as he entered the room, her sisters immediately withdrew and he seated himself on a sofa by the side of his sweetheart. She still toyed with him, insisting, however, that he call again. Fearing that she might lose her impetuous lover altogether, the young coquette gave him an evasive acceptance a few days later. "She answered," wrote Theodorus, "that she thought more of me than she ever did of any gentleman, That I now possessed the first place in her affections. That there were great hopes of my finally succeeding. What more could I expect[;] what wish. Her delicacy acted as the only preventive of an avowal." 25 Theodorus followed her to a summer resort only to find that he could still obtain nothing more definite than encouragement.

           It was not until six years later that he married another, but he had learned his lesson. This time he wrote to his brother, "I am engaged to be married . . . and as matters now stand it rests altogether with myself in setting upon the time for the celebration of our nuptials." 26

           What was the fate of the South Carolina coquette has not been recorded. Perhaps she met a better fortune than a young lady of Edenton, who for five or six years held all the beaux in Eastern North Carolina by the ears. Her fate, as William B. Shepard related it, was "a most terrible and afflicting calamity." "-- --, the beautiful and accomplished, is no more," he wrote to his sister. "She married a few days ago a man named Thompson near fifty years old, and a bankrupt not worth one cent. . . . Her exit ought to be an awful lesson to all fine ladies who sport with fortune, for instance, Miss M.-- J.-- runs some risk, that she may be reduced to the sad necessity, of marrying some advanced cock fighter." 27

           Just as there were coquettes, so were there also "coxcombs," and it was the duty of the ante-bellum father and brother to protect the daughters of the family against these conceited fops. After a young lady had received "marked attentions" from a young man, her family had the right to expect "an address" to follow; and, unless it did follow, the young man might have her brother calling on him at his office or plantation and asking what his intentions



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were. "Certainly there couldn't be a greater bore than to have to shoot a good-hearted fellow merely because one didn't want to make him a brother in law," wrote a young man from Savannah after one of his friends had barely escaped a duel on such grounds. 28

           This same young man had several years earlier warned his sister against coxcombs. "Tender words are but uncertain signs of a tender heart," he cautioned her. "Flirtation is not courtship. All men are villains. Keep very shady as to your own feelings. Always try to draw the enemy out first. Mention casually that pistol shooting is a gift of your family, and that your grown up brothers are all crack shots, and single men. If matters come to the worst, and you are formally called upon to surrender, look sweet and tell your fond adorer to 'ask Pa.' . . . Above all never refuse a man until he offers himself, or run away with a sentimental looking young gentleman by moonlight. They are both blunders, which you know are worse than crimes." 29

THE ENGAGEMENT

           There seems to have been no special public ceremony associated with the marriage engagement. Neither the present-day announcement party nor the public statement made by the parents of the bride-to-be through the society page of the local newspaper were in common practice in ante-bellum days. A few intimate friends were told of the engagement and soon the fact was common knowledge. The period of engagement was usually brief. In 1804 a young man of Edenton declared to his friend, Ebenezer Pettigrew, that a young girl whom he was courting would "run crazy if she thought she had to wait two years" to be married. 30

The bride-to-be, however, usually insisted upon having two or three months in which to prepare her wedding outfit of clothes and household linens. In 1846 James Norcom, Jr., wrote to his betrothed, "Place no bar in the way of our union, but as speedily as possible, make all & every necessary preparation to bid me come as early to the marriage feast as you can." 31



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           Despite the fact that no public announcement was made of the marriage engagement, custom and law regarded the betrothed ones as owing each other certain obligations. When an Edenton gentleman wrote to his fiancée in 1810 to pursue "the course I have laid down for you," he justified himself by saying, "It is my duty to instruct you in that course of life & conduct which will not only be most conductive to my happiness, but to yours also." 32

Property belonging to the woman prior to and during the engagement was considered legally an object of the marriage, and a secret conveyance of it was deemed a fraud upon the rights of the intended husband. 33

           The age at marriage during the ante-bellum period depended somewhat upon the economic status of the individual. The gentry class tended to marry several years earlier than the yeomanry, although only the most general conclusions can be drawn in this connection. Judge William Gaston's first wife was sixteen when she was married, as was also Dr. James Norcom's second wife. Dr. Norcom, however, was strongly opposed to a man's marrying before he was settled in a profession. "To see a youth," said he in a letter to his son in 1819, "talking of marriage, & about to place himself in a situation to be encumbered with the cares of a family without any determined character or settled principles, moral, social, or religious, without a profession, & not having thought of an occupation or employment by which he is to gain for himself the comforts & conveniences of life, is certainly the greatest of all absurdities!" 34

In 1811 when a boy of fourteen married a girl of twelve the Raleigh Star referred to it as "mere children's play." 35 The Revised Code of 1855 declared girls under fourteen and boys under sixteen incapable of contracting marriage. 36

           In 1820, upon the resolution of Edward F. Graham of New Bern, a bill was drafted and passed "concerning the marriage of infant females" which forbade the marriage of girls under fifteen



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without the written consent of their fathers. 37 The husband was made guilty of a misdemeanor and the clerk issuing the license was made liable to forfeit $1,000. The property of a girl married contrary to this act was vested in trustees for her "sole and separate use." The object of the act, however, was not so much to raise the age at marriage as it was to make some provision to "secure infant female wards against being driven into premature marriage by the interested views of unprincipled guardians." 38 Despite efforts to repeal the act, 39 it remained among the statutes, but evidently it was not enforced, for in 1848 both the North Carolina Standard and the Star called for a bill "more effectively providing against the marriage of female minors without the consent of their parents or guardians." 40 The Star suggested further penalties on clerks for issuing licenses.

           Second, third, and even fourth marriages were favorably looked upon if not too soon after the death of the last mate. But a hasty remarriage was invariably ridiculed. The Star, announcing the marriage of a certain Charles Hood of Johnston County in 1810, remarked that he had taken a second wife "after enduring the forlorn condition of a widower, with the most exemplary patience and fortitude, for the tedious space of nearly two months." 41

           Bachelors and spinsters were out of place in the social order. In 1800 the General Assembly considered a bill "for the further taxing of bachelors, and to forward the population of the State, by promoting and encouraging matrimony," which proposed a special tax upon all unmarried men. 42

Newspaper correspondents occasionally came to the defense of the unmarried. In 1810 "A Bachelor's Advocate" protested against an unmarried man's being considered "a mere frolick of nature," 43 and in 1844 a correspondent of the Star declared that spinsters were women of superior minds, for "most men dread sensible women." 44 In 1845 "An Old Lady" complained against the ridicule of unmarried women, saying, "Hardly can half a dozen persons spend an evening together without the manoeuvres of some (alleged) husband-hunting spinster

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becoming the subject of discussion." 45 The actual proportion of the unmarried to the total population is difficult to determine, but it was probably small. The census of 1860 lists the total number of free families in North Carolina at 129,585. Of this number 5,204 were composed of but one member. Thus, four in every one hundred heads of families were unmarried, that is bachelors, spinsters, or widowed.

THE MARRIAGE CEREMONY

           The consent of parents was even more necessary for marriage than for courtship. A daughter and even a son who defied the parental wish ran the risk of being disinherited. When a young lady of Edenton eloped, the first letter she dared address her parents was on the occasion of the death of her first child more than two years later. "Ask Pa to forgive and forget all" she entreated her mother. "If I could be with you once again, My dear Parents, I would prove by my devotion to you both, how sincerely I regret the pain I occasioned you, and that we could not have been married with your consent--for now I can appreciate all your motives, and understand all your feelings-- . . . but if you could throw aside your prejudice, . . . your feelings I'm sure would change, for no one ever had a kinder, a better husband." 46

           In 1833 a seventeen-year-old wife petitioned the Legislature for a divorce on the ground that her father had compelled her to marry a man whom she did not "favour." She "consented to pass through the ceremony provided no license should be had," intending, as she said, "to have the license afterwards obtained and the marriage consumated" if she could become reconciled to him. Much to her distress, she found that the marriage was legal. 47

In 1850 a young girl of the small farmer class wrote her sister concerning an elopement: "J . . G . . and E. . . Smith is married they run away & married he never asked for her. I learn that Mr. Smith is quite insulted but not so bad as the old lady." 48 The custom of obtaining parental consent for marriage was evidently in general practice throughout North Carolina, although occasionally there were couples who "flew the track." 48a



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           From colonial days marriage was considered a civil contract in North Carolina. As stated by Chief Justice Ruffin in his review of the history of the marriage contract in State v. Samuel, "in this state there never was a jurisdiction similar to that of the spiritual courts in England; and it is plain from the earliest period of our legislation, that in consequence thereof, it has been constantly required as an essential requisite of a legal marriage that it should either be celebrated by some person in a sacred office, or be entered into before some one in a public station and judicial trust." 49

Judge Ruffin based his opinion upon the terms of the first marriage act of 1715, the acts of 1741 and 1778, and upon the constant usage in North Carolina since those acts.

           The act of 1741 called for the publication of banns or the issuance of a license prior to the wedding ceremony. 50

Banns were to be published three times "as prescribed by the ruberick in the book of common prayer," or, according to the act of 1778, three Sundays in the congregation immediately after or during divine worship, and the minister was to give a certificate of such publication. In case the bridegroom preferred to have a license rather than to publish banns, he obtained it from the clerk of the county court in which the woman resided, but before the clerk issued it he required the bridegroom to enter bond for £500, later $1,000, that there was no lawful cause to obstruct the marriage. 51

           This procedure was evidently subject to abuse, for the attempts to amend it and the protests against its laxity were common in the ante-bellum period. In 1801 and again in 1803 the Baptist Society "residing in sundry counties in this State" petitioned the General Assembly for a more rigid law, saying that "the good people of this state have suffered great inconveniences from the present law." 52

The petitioners objected to the mode in which licenses were obtained because the county clerks were not required to demand the written consent of parents. They pointed out that the county clerks in most instances had given the license blanks to a justice of the peace and permitted him to issue licenses merely by filling in the names of those to be married. Thus, they argued,

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"the marriage may be solemnized before the parent &c is apprised that such a thing is intended which has often proved a source of very great calamity to many families." The publication of banns was liable to similar abuses, "for a forged certificate has frequently been produced to a Justice or Minister which they were unable to discern was such till after the marriage was celebrated." Couples from Virginia frequently slipped over the border into North Carolina for a hurried marriage, for "the people of that State have no such opportunities within their own limits being circumscribed by certain laws or rules calculated to prevent such clandestine marriages." 53

           The method most frequently suggested for preventing abuse of the marriage law was that of registration of marriages. In 1807, 1808, 1817, 1821, 1827, and especially in 1850 efforts were made to obtain the passage of an act requiring registration. This movement was sponsored by such political leaders as Jesse Pearson of Rowan; Henry Irvin Toole of Edgecombe; John M. Morehead of Rockingham, later of Guilford; and Thomas N. Cameron of Cumberland. In 1850 the first and only registration act of the antebellum period was passed. It required the person who performed the marriage ceremony to return the license with a certificate of marriage to the county clerk within three months under a penalty of $25 for failure to do so. 54

           The colonial laws attempted to restrict the performance of the wedding ceremony to the clergy of the Church of England. The act of 1741 gave this privilege to "every clergyman of the Church of England," but for lack of such to "any lawful magistrate within this government"; the magistrate, however, was not to perform the ceremony under a penalty, "in any parish where a minister shall reside and have a cure" without permission from the minister. Even then the fees for the marriage belonged to the minister unless he had refused to perform the ceremony. By 1766, however, the Presbyterian denomination had obtained the passage of an act making it lawful for their ministers to perform the ceremony. 55

The act of 1778 declared that "all regular ministers of the gospel of every denomination, having the cure of souls, and all justices of the peace" were empowered to "solemnize the rites of matrimony,

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according to the rites and ceremonies of their respective churches," and this was the law of ante-bellum days. 56

           The performance of the wedding ceremony by a minister or by a justice of the peace was the chief essential of a valid marriage, according to two important decisions handed down by the Supreme Court. In 1845, in the case of State v. Robbins, Judge Nash held that:

In 1852 in State v. Christopher Bray, a case of bigamy, Judge Ruffin held that it was not necessary to the validity of a marriage that the minister performing the ceremony should be a person "in charge of a church or the rector of a parish, or pastor of a particular flock." 58 "But it is necessary," he declared, "that he should have appeared to be a minister, capable of entering upon the duties of such a charge, according to the ecclesiastical economy of his church, with the faculty of celebrating the rites of matrimony." 59

           As has already been indicated, the actual wedding ceremony varied according to the practice of the person officiating. In State v. Patterson, reviewed by the Supreme Court in 1842, it was brought out by several witnesses that the common ceremony in both Tennessee and North Carolina was similar to that used at the marriage of Thomas Patterson and Diemena Kidwell in 1823:

           For most North Carolinians, therefore, the wedding ceremony was simple and soon over. The feasting and frolicking which so often accompanied it were more impressive than the ceremony itself. The duration and extravagance of the festivities depended, of course, upon the economic status of the bride's family. In 1818 Dr. James Norcom described the marriage festivities of a relative in a letter to his son John:

The festivities of a country wedding as described by a young boy in a letter to his sister, lasted only one night:

           Wedding trips were indulged in only by the most affluent. The bridal tour of Henry W. Conner, later a political leader in both of the Carolinas, was also a business trip in which he looked after



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holdings in Western North Carolina and Tennessee. 64 If the marriage was in the fall or spring, the planter usually wished to hurry back to his crops, 65 but if it was in the summer, he might spend a few weeks with his bride at a health resort. In August, 1860, the wedding expenses of a wealthy planter in Bertie County amounted to $1,235.50. Of this sum, he gave $20 to the Episcopal minister for performing the ceremony. Thirty-three dollars went for incidental expenses pertaining to the ceremony and $115 for the bridal present. The remaining $1,067.50 he spent on the wedding trip to northern watering places. 66

           A month before her marriage in November, 1860, young Mary Norcott of Eastern North Carolina was in New York at the St. Nicholas selecting her trousseau. "What dreams of beauty my dresses were!" she wrote later. Her honeymoon was a two-month tour of the South, including a six-day voyage down the Mississippi from Memphis to New Orleans on the steamer Ingomar in company with seven other bridal couples. 67

           There were those who married in North Carolina without obtaining a license, without publication of banns, or observance of the common ceremony, 68

despite the fact that the preamble of the Marriage Act of 1778 declared that "it is absolutely necessary that rules should be observed concerning celebrating the rites of matrimony." The practice of taking a woman quietly to one's bed and board and having children by her was common enough by 1827 for the Supreme Court to declare in Weaver v. Cryer that "general reputation and cohabitation are evidence of a marriage in all cases except action for crim. con." 69 Again in Archer v. Haithcock the Supreme Court held it "to be a general rule that reputation, cohabitation and the declaration and conduct of the parties are competent evidence of a marriage between them, except in two cases,

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i. e. on an indictment for bigamy and in an action of 'crim. con'." 70 "We are not . . . disposed to make another exception without a reason," said Chief Justice Pearson. "Especially, as in this State there is no registry of marriages and frequently circumstantial evidence is the only mode of proving one." It was a simple matter, therefore, for a couple to agree to live together.

EXTRA-MARITAL RELATIONS

           Undoubtedly ante-bellum society frowned upon extra-marital relations, but it did not frown sufficiently to prevent them. The extent of intimacy during courtship usually varied with the family discipline and training of the lovers. In 1810 "Observer" protested through the columns of the Raleigh Star against such games as "selling the thimble," played at tea parties, which required that the loser pay a kiss as a forfeit. "To my understanding it is pretty evident," he wrote, "that the young lady, who in a promiscuous company of segar and pipe-smokers, and perhaps debauchees, suffers herself to be kissed, by any one whom chance may select, either wants a just sense of that virtuous delicacy, which heightens beauty and adorns virtue; or that having this sense, she scruples not to violate it for the wretched fear of being accounted singularly modest." 71

When young James Norcom, Jr., at school in Philadelphia, wrote his father about a fascinating Miss Ford whom he had met, Dr. Norcom replied that there were many Miss Fords to be found in the world. "They show one, to be sure," the father cautioned, "how far the pleasures & gaieties of the world may be indulged in, without any very positive & flagrant violations of virtue or discretion; but they generally live in the habitual omission or neglect of some important duty." 72

           In 1813 a young man wrote his sister, about to leave her home in the country for a visit in the city, that he hoped she could "associate with those who are called the polite and well bred, the gay and fashionable ladies of the present day, without assuming their manners, and adopting their free and forward airs, without, like them, admitting the gentlemen among your acquaintances, to liberties, to familiarities, which, if they are not criminal, are at least inconsistent with that modesty, and chastity of manners, which constitute the first female charm, . . ." He thought that "those



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fashionable ladies . . . who in public companies suffer themselves to be clasped in our arms, seated on our knees, kissed, pressed and toyed with in the most familiar manner--with whom our hands scarce need restraint" were guided by "the desire of making conquests." 73

           Against such conduct as this, the camp-meeting leaders hurled their thunder. The whole strength of organized religion came in time to oppose "gaieties of fashionable life." Even as late as 1859, the Reverend John Bayley, Methodist minister of Virginia, writing on the duties of a faithful wife, declared, "She does not injure her constitution . . . by midnight revelings, . . . or any sensual indulgence whatever. . . . Instead of running night after night to the haunts of fashionable folly, . . . she will retire early, rise with the lark, and find her pleasures in the face of day, . . ." 74

The "romantick novel" which helped to usher in the "sentimental lady" of the early Victorian period also lent its influence in behalf of "blushing modesty," for the heroines were usually females of "enchanting bashfulness," "images of spotless purity." Although a vast change took place in the relation between the sexes during the ante-bellum period, reformers found it necessary to continue raising their voices against "irregularities" and a reference to the legal documents of the period shows that irregularities continued to exist.

           The petitions to legitimate children, submitted to the General Assembly between 1800 and 1827, show that couples sometimes had one or more children prior to marriage. The petitioners in most cases belonged to the upper classes, for they were men who had property to bequeath. These petitions do not represent the extent of the custom, but only give some indication of the number of children born to a couple prior to marriage. Forty of the 171 petitions which have been preserved in the Legislative Papers state definitely that the petitioner later married the mother. 75

Of this number, as shown in the following table,

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22 petitioners had 1 child born prior to marriage with mother
7 petitioners had 2 children born prior to marriage with mother
4 petitioners had 3 children born prior to marriage with mother
2 petitioners had 4 children born prior to marriage with mother
3 petitioners had 5 children born prior to marriage with mother
1 petitioners had 6 children born prior to marriage with mother
1 petitioners had 7 children born prior to marriage with mother

           Some idea of the extent of illegitimacy can be obtained from the bulk of these petitions. The following frequency table made from the 171 extant petitions submitted between 1800 and 1827, shows the number of illegitimate children per parent:

NUMBER OF ILLEGITIMATE CHILDREN PER PARENT, 1800-1827

Number of Children Number of Parents Per Cent
1 98 57.3
2 33 19.3
3 15 8.8
4 12 7.0
5 6 3.5
6 2 1.2
7 to 9 3 1.7
10 and over 2 1.2
Total 171 100.0
Slightly more than half of the petitioners, or 57 per cent, had one illegitimate child; and almost twenty per cent had two. One petitioner, however, had sixteen, seven by one woman and nine by another.
76

           An examination of the records of the county courts of six counties, representing different sections of the State, also reveals some data concerning illegitimacy, for the county courts had jurisdiction over bastardy cases. The number of cases appearing on the dockets of these county courts during three different periods between 1800 and 1860 is shown in the following table:



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NUMBER OF BASTARDY CASES IN COUNTY COURTS 77

BASTARDY CASES ON THE COUNTY COURT DOCKETS

County 1801-1805 1831-1835 1851-1855
Carteret 8 11 2
Cumberland 17 10 .....
Edgecombe 14 33 35
Orange 17 2 4
Pasquotank 35 1 .....
Rutherford 27 6 .....
Total 118 63 41

           It would seem that the tendency was toward a decrease in the amount of illegitimacy; yet such a conclusion might be inaccurate, for the number of cases appearing on the docket was largely dependent upon the vigilance of the justices of peace in bringing these cases to court. The case of Edgecombe County is significant, for there were more than twice as many cases on the docket from 1851 to 1855 as from 1801 to 1805.

           One of the chief values of the data collected from the county court dockets is the information given in regard to the offenders. For instance, Millicent Newby of Pasquotank County charged a certain William Lane with being the father of her illegitimate child born in 1803, but two years later she had another child by a different man. 78

Susannah Tadlock and Bathsheba Garret of Pasquotank County had similar records; 79 and Isaac Wyatt was found to be the father of two illegitimate children born in 1804. 80 The same family names continually appear in bastardy cases. In Cumberland County, for instance, Polly Knight, Mary Knight, and Henry Knight had illegitimate children born within a few years of one another. 81

           Some offenders were men and women who figured prominently



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in ante-bellum life. Among the Revolutionary patriots who had illegitimate children were such distinguished names as Cornelius Harnett, Robert Halton, Francis Nash, and Matthew Rowan. 82 The fact that stigma was attached to illegitimacy is indicated by expressions used by some of the petitioners to the Legislature. For instance, the petition of John Clayton of Tyrrell County in 1801 stated "that your Petitioner has had the misfortune to become the father of two illegitimate children." 83 In 1826 Robert Murdock of Randolph County admitted that he had postponed asking for a bill to legitimate one of his children because he was ashamed of the circumstances surrounding its birth. "Your petitioner from a reluctance to expose the improprieties of his youth" ran the petition "has heretofore abstained from applying to your Honorable body to remedy as far as is practicable the evil which his imprudence has produced; but justice for his son for whom he has the same esteem that he has for his other Children, requires that something should be done for his relief." 84 Most petitioners, however, expressed no regret on account of their "wild oats."

           Society was much more severe upon the woman offender than upon the man. In 1809 the Star related the story of the suicide of a young girl in Cabarrus County who hanged herself by a bandanna handkerchief to the limb of a peach tree. "She became the victim of seduction, yet retained so much of the pride of human nature, that, when her situation could no longer be concealed, she declared her resolution of escaping the scoffs of an unfeeling world, by destroying herself." 85

A few months later the Star carried an advertisement for fifteen-year-old Betsy Fowler who had strolled into Cross Roads community in Wake County to give birth to a child. Three weeks later she had "absconded," and an indignant resident of Cross Roads sought information of her through the newspapers "so that she could be compelled to take and maintain her child." 86

           A significant instance of concealing the birth of an illegitimate child occurred in Fayetteville. In 1850 a number of residents of that town petitioned the Legislature to emancipate Lucy, "the daughter of a respectable white woman." "To protect the reputation of the real mother, Lucy at her birth was placed in charge of



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a woman, a slave of one John Selph," so the petition claimed. 87 Lucy's father was also white, and her associates were "distinct from the coloured population, and her whole demeanor that of the whites." Selph had intended to manumit Lucy, but he died suddenly and his administrator had sold the girl as a slave. Now the Legislature was petitioned to emancipate her, "an unfortunate woman illegally held in bondage." Some unmarried mothers, lacking an easy means of escape, resorted to the ancient crime of infanticide. 88

           In 1844 the Biblical Recorder began an attack upon what later has been called the "double standard" of morality by a severe article on "the seducer," and other papers in the State took a momentary interest in the fight. The Biblical Recorder thus expressed itself:

The law attempted in various ways to prevent extra-marital relations. An illegitimate child was prohibited from inheriting from its father, but by act of 1799 it could inherit from the mother provided she left no children born in wedlock. 90 A father, by petitioning the Legislature, possibly might obtain the passage of a private act changing the name of his illegitimate child from that of the mother to his own and making it capable of inheriting in like manner with his children born in wedlock. 91 The Supreme Court decided, however, in Drake v. Drake that the wording of the private

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act must be so specific as to make the child legitimate to a particular person, otherwise the only effect of the act was to change the child's name. 92 Since most of the children legitimated prior to this decision in 1833 were done so by carelessly drawn acts, the purpose of the father was in many cases defeated. Consideration of "bastardy petitions" took up so much of the Legislature's time that as early as 1805 a movement was started to vest the courts with power to legitimate. 93 In 1829 an act was finally passed giving the county or superior courts jurisdiction in such cases. The act required that the petitioner should have married the mother or that the mother be dead, married to another, or living outside the State. The courts seldom made records of these cases 94 with the result that questions concerning legitimation sometimes occurred. The act of 1838 sought to prevent these controversies by requiring clerks of the courts to record the decrees. 95

           The act of 1741 "to suppress vice and immorality" was the basis of the law during the ante-bellum period concerning extra-marital relations. The act of 1741 stated "that if any person commit fornication, upon due conviction, each of them shall forfeit and pay twenty-five shillings . . . for each and every such offence." 96

But in 1805 this act was altered in response to a petition from the justices of peace of Edgecombe County to apply to "fornication and adultery, where a man shall take a woman into his house or a woman a man, and they shall have one or more children without parting or an entire separation." This offense, which the justices thought more grievous than a single act of incontinence, was made indictable and the offenders held liable to a fine not exceeding $200. 97

           The procedure in bastardy cases as set down by the act of 1741 was slightly altered by the acts of 1799, 1814, 1832, and 1850, in each instance looking to a more liberal interpretation of the law. 98



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According to the Revised Code of 1855, a justice of the peace might require a single woman who was pregnant or who had recently given birth to a child to be brought before him to declare the father upon oath. If she refused to name the father, she was fined $5 and required to enter bond to keep the child from becoming a public charge. If she named the father, the man so accused was ordered to appear before the next term of the county court "to stand to, abide by, and perform whatever order the court may make for the maintenance of said bastard." 99 Usually the court required the father to give bond for the support of the child and to pay the mother a certain amount "for lying in expenses" and a specific sum at regular intervals until the child had reached from three to seven years of age. The amount of the bond required varied from £200 to £500 in 1805 and from $500 to $1,500 in 1850. In 1805 the father was usually required to pay the mother £10 for the first year and £6 a year thereafter, while in 1850 the order usually read "$10 for the first month and $1 a month thereafter." A man charged with being the father of an illegitimate child might make up an issue and obtain a trial of the case. 100

           It was recognized that the bastardy law was subject to abuse. If a designing woman chose to accuse a man, he might have difficulty in proving his innocence. Or, on the other hand, a man might attempt to escape payment of the yearly fee to the mother either by making a compromise with her or by deliberately neglecting to pay the sum. 101

           There is ample evidence to show that all of the largest towns in the State had their "lewd houses," 102

and it is reasonable to believe that most of the smaller towns did also. "Monitor" in the Edenton Gazette of 1811 said, "It is a matter of concern and regret to every person who is interested in the welfare of our Town, that some of the young men are of a licentious turn." 103 He then spoke of their "very great propensity" for visiting brothels. In 1821 "A Friend to Industry," writing from the Forks of the Yadkin, sent a warning through the columns of the Western Carolinian

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"to such characters as follow 'no honest calling' for a livelihood, but slink about from one place to another, alluring minors and heedless young men to the gaming table, and other scenes of vice and depravity." 104 In 1822 the commissioners of Raleigh began a campaign against "prostitute women," 105 and in the same year the Legislature considered a motion to make the vagrant laws of the State more stringent by permitting three persons of good character to charge another of ill fame before a justice of peace. 106 If the charge was proved, the offender was subject to an imprisonment of ten days and after that she was to be hired out to the highest bidder for a term sufficient to pay all costs. The persons giving the information were to receive "ten dollars in compensation."

           Strolling prostitutes were always present at any large gathering. 107

They attended public celebrations, the musters, the fairs, and the courts. A. S. Merrimon, attending Madison County Court in 1853, wrote in disgust: "Scores of women attend this court for the sole purpose of drinking and pandering to the lustful passions of dirty men, and I regret so excee[d]ingly to say, that some men, I will not say gentlemen, are guilty of intercourse with these dirty, filthy strumpets, that ought to be, and one would think they are above doing such things." 108 It is a significant fact that many of the prostitutes were white women. Although there is ample evidence of race mixing, the extent has often been exaggerated.

           Several cases of incest attracted public attention during the ante-bellum period, one that of a member of the Legislature who was forced to resign his seat because of the fact but was promptly returned by his constituents. 109

Cases of bigamy never failed to arouse indignation, 110 but the ante-bellum legislation on this subject looked steadily toward mitigation of the punishment imposed. The act of 1790 which declared bigamy a felony was gradually altered until it was listed as a misdemeanor in the Revised Code of 1855, the offender to be "fined and imprisoned, and receive one

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or more public whippings, and be branded on the cheek with the letter B." 111

DIVORCE AND ALIMONY

           The question of divorce was one of the most vexed of all problems relating to the family during the period from 1800 to 1860. Agitation for a divorce law began as early as 1790, but the Legislature steadfastly set itself against such an innovation until 1814. Practically every year, from 1799 when a bill "authorizing the judges of Superior Courts to grant divorces, whenever a husband and wife should shew cause which to them appeared sufficient" was rejected on the second reading in the Senate 112

until the passage of the first divorce law, the General Assembly listened to prolonged debates on divorce and spent much time considering divorce petitions. The General Assembly delegated to itself the power to receive petitions for divorce and to pass private acts divorcing husband and wife when in its judgment the cause or influence of the petitioner was sufficient to demand it. As a result, hundreds of petitions poured into the Legislature and the time required to consider them reached enormous proportions. But the number of divorces actually granted was very few. In 1810, for instance, out of twenty petitions for divorce, the Legislature granted only one. In 1813, the year before the passage of the first divorce act, the Legislature granted four divorces out of twenty-two applications.

           "A Friend to Good Order and Religion" discussed this situation when the divorce bill became an issue in 1809. He said quite truthfully:

           The divorce bill of 1808, which was published with the laws of that year for the general consideration of the public, provided relief for three sets of injured persons: (1) for such as were married to those incapable through impotence of performing the duties of the married state, (2) for such as were injured by a violation of the marriage contract, and (3) for wives barbarously treated by their husbands. In the last instance, the wife was to be allotted a third of the husband's annual income. The bill was widely discussed and the newspapers were full of articles on the subject. 115

Designing politicians, seeing in the issue an opportunity to win votes, industriously circulated the idea that the friends of the divorce bill had in view a general law whereby "they intended to loosen the bands of Society and turn mankind upon each other like brutes." 116 The bill was also opposed by the ministers and the religious part of the community. When the measure finally came to a vote in the Legislature the vote stood 25 to 32 against the bill.

           Nevertheless, the increasing number of petitions indicated that there was a real demand for a divorce law. In 1812 the Senate was found sending an urgent appeal to the House of Commons for the appointment of a "joint select committee" to inquire if any "provisions can be made by law to prevent this growing evil." 117

But it was not until two years later that a divorce bill was passed, 118 and then it was only a makeshift piece of legislation.

           The act of 1814 followed closely the bill of 1808. It permitted a complete divorce for impotence and adultery, provided the petitioning party was not also guilty of adultery, and a divorce from bed and board to wives cruelly treated by their husbands. In the latter case, the wife might be granted alimony "as her husband's circumstances will admit" not exceeding one third of his



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annual income or a third of his estate. This section of the act was amended two years later to secure to the wife such property as she might thereafter acquire. 119 The superior courts were given jurisdiction over divorce cases and the material facts in the petition had to be submitted to a jury, but the divorce was not effective until ratified by the General Assembly. The act then proceeded to limit the benefits to the propertied class by requiring that the petitioning party give bond for the prosecution of the suit and that a tax of £10 be imposed upon the party cast. This provision was not modified until ten years later. 120 The status of a divorced wife was not defined until 1819 when she was given the legal status of a feme sole. 121 She might also assume her maiden name.

           The act of 1814 served to give the General Assembly only a brief respite from divorce petitions. By 1824 they were coming again in large numbers. In 1827, therefore, the Legislature relinquished its right to have the last word in divorce cases by giving sole and original jurisdiction to the superior courts. 122

The Legislature then gave the courts authority to exercise the practice which it had always followed, the right to consider divorces for causes other than impotence and adultery. But it offset this liberality by declaring that the offending party was not to marry again. 123 Although minor changes were made in 1828, 1829, 1834, 1842, and 1852, the divorce law of the ante-bellum period was essentially that of the acts of 1814 and 1827. An amendment to the constitution passed in 1835 forbade the General Assembly power to grant a divorce or secure alimony in any individual case. 124

           Prior to the passage of the act of 1827, those who considered themselves injured were meeting the situation in various ways. Some entered into "separation contracts" which contained provisions as various as those signing them. In 1786, for instance, Benjamin Coakley entered into bond with security never thereafter to intermeddle with his wife's person or property which remained with her by his consent. 125

In 1803 John and Rebekah Farrow of Currituck County entered into the following contract:

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           Still others, without show of legality, were remedying their situation as best they could. As William Kerr of Stokes County stated to the Legislature in 1808, ". . . it is extremely hard to be bound during life by the laws of this country in consequence of that violated and broken covenant between her and him in respect to which I have a good conscience." 127

Having the sanction of their own conscience and being unable to obtain relief by legislative sanction, many laid aside one partner and took up another. In 1800, for instance, one Thomas White petitioned the Legislature to legitimate certain of his children. He stated quite frankly that he had been lawfully married, but his wife's third child was black, whereupon he left her and shortly thereafter "took to his bed and board Esther Bittle by whom he . . . had ten children." 128

           The causes which were deemed sufficient for a divorce by petitioners to the Legislature as set forth in 266 applications which



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have been preserved in the Legislative Manuscripts are listed in the following table: 129

          

CAUSE FOR DIVORCE

Cause Number of Petitions Per Cent
Desertion to live with another 50 18.8
Desertion 49 18.4
Cohabitation with a Negro 20 7.5
Adultery 13 4.9
Separation 13 4.9
Not stated 12 4.5
Cruelty 11 4.1
Prostitution 10 3.8
Wasting property 10 3.8
Bigamy 9 3.4
Bringing another into the house 8 3.0
Drunkenness 6 2.3
Impotence 5 1.9
Incompatibility 5 1.9
Attempt on petitioner's life 4 1.5
Married while drunk 4 1.5
Non-support and cruelty 4 1.5
Ill temper 3 1.1
Indecent conduct 3 1.1
Partner is fugitive from justice 3 1.1
Refused to Cohabit 3 1.1
Miscellaneous 21 7.9
Total 266 100.0

           Of the causes listed, more than a third, or 37.2 per cent, were for desertion, and a little more than half of the desertion cases were desertions to live with another partner. A large number of the deserters were cited as having gone to "the western country." Some went expecting to return, while others went openly declaring their intention of being rid of the worries of a burdensome family. Still others "eloped to the Louisiana country," carrying with them the objects of their illicit love. Some, however, were bold enough to live with another in the same neighborhood as the lawful mate. The law against bigamy recognized the frequency of desertions by declaring that it was "not to be applied to a person whose husband or wife shall have been absent seven years, without knowledge of his or her existence." 130

Those listed as charging the partner

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with adultery stated in most instances that they were still living with their mates but that the petitioners found the condition insufferable under the circumstances.

           The charge of cohabitation with a Negro was made by 7.5 per cent of the petitioners. In 1832 Judge Ruffin held in Scroggins v. Scroggins that the birth of a mulatto was not always sufficient cause for a divorce under the act of 1827. His opinion was as follows:

           The causes listed as miscellaneous contain fifteen categories, among which were the following charges: husband charged petitioner with adultery, each has had children by another, separation with division of property, incest, wife lives with another while petitioner is away on business, wife cursed petitioner and called him an "amaffarrodite," wife in love with another, family feud, petitioner had obtained her property rights by legislative enactment and thought she had a right to remarry, wife pregnant by another man when he married her. It is surprising that the last cause named was listed by only two petitioners especially since an attempt was made in the Legislature in 1834 and again in 1852 to specify this as another cause for divorce. 132

           Aware of the difficulty of obtaining a divorce by legislative enactment, many women often closed their petitions with the request that, if the divorce was not granted, a law might be passed to secure to them such property as they might thereafter acquire. Two hundred and thirty-eight such petitions, not included in the list of petitions for divorce, have been preserved in the Legislative Manuscripts. 133

An enumeration of the causes given for carrying into effect the prayer of the petitioner would closely parallel the causes listed for divorce. Desertion leads the list, with non-support,

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cruelty, and drunkenness closely following. A section of the divorce act of 1814, as has already been stated, provided for relief in such cases by granting a divorce from bed and board for the following causes: "if any person shall either abandon his family or maliciously turn his wife out of doors, or by cruel or barbarous treatment endanger her life, or offer such indignities to her person as to render her condition intolerable or life burthensome." 134 In 1828 the Legislature afforded additional relief to injured wives by making it lawful for superior courts to decree alimony "when a man shall become an habitual drunkard or spendthrift, wasting his substance to the impoverishment of his family." 135 Both acts, however, declared that they should not be construed "in any wise to affect the rights of any creditor . . . of the husband."

           Despite the fact that many each year sought to break their marriage vows, the family was "the most lasting cement of the political permanency" of ante-bellum North Carolina. Courtship among the gentry was conducted with formalities which have since been sloughed off, but courtship itself was essentially the same then as now. Illegitimacy was probably greater, but family ties were nevertheless compelling. Although the household revolved around the father as the legal head, the strong emotional appeal of wife and children greatly modified the asperity of the law.

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