Allen v. Allen is the first of our collection of cases that involves a suit for divorce and concerns the subjects of infidelity and domestic violence. There were two types of divorce at this time. A divorce a vinculo matrimonii (Latin for "divorce from the chains of marriage") was a total divorce of husband and wife, dissolving the marriage and releasing the parties wholly from their matrimonial obligations. This type of common divorce, which bastardized any children from the marriage, was granted on grounds that existed before the marriage. The other type, a divorce a mensa et thoro (Latin for "divorce from table and bed") was a lesser type of divorce by which the parties are separated and forbidden to live together, but remained legally married. A divorce a mensa et thoro is the forerunner of modern legal separation.

The southwestern frontier was the site of numerous divorces. A partial record can be found in the pages of the Arkansas Gazette, which contain the court notices of divorce proceedings. Interestingly, at this time in history, divorces could also be obtained through the legislature. One letter writer to the Gazette (on Oct. 12, 1831), going by the pseudonym "A," criticized legislative divorces. A argued that legislative divorce petitioners did not have to pay court costs, and thus the public bore more of the cost of a legislative divorce. According to A, a legislative divorce could be obtained merely by hiring a lawyer, who would draw up a petition that one's friends would then sign. A legislative divorce was an ex parte proceeding, unlike the Allen trial.

This story began in December of 1825 when Samuel Allen and Elizabeth Tygert were married. After an apparently tumultuous year and a half, Samuel Allen, via his attorneys Richard Searcy and Townsend Dickinson, petitioned the circuit court of Independence County for a divorce a vinculo matrimonii on May 30, 1827. In his petition for divorce, he stated that "notwithstanding the strict observance of his marriage contract on his part, the said Elizabeth wholy regardless of her duty as a wife, and her said marriage vow, did not conduct herself with the prudence discretion and affection which she owed to her husband and the delicacy of her sex; but on the contrary was ill natured and disobedient to [Samuel] and endeavored by every means in her power to render his life miserable and unhappy." Furthermore, he asserted that Elizabeth deserted "his bed and board" without any reasonable cause, even though Samuel alleged that her desertion was "contrary to the desires and persuasions of [Samuel] who notwithstanding the grievances aforesaid has always been anxious that the said Elizabeth would return and reside with him, and has frequently solicited her to do so which she most obstinately refused to do." In addition, Samuel stated that Elizabeth was "naturally impotent and incapable of procreation, the strongest and only inducement to matrimony and the only tie that could cement and perpetuate domestic happiness and affection." Thus, he said, "the fond hopes which your petitioner entertained of a happy and thriving progeny to soften the cares and infirmities of age most unfortunately disappointed." At the time he offered his petition, Samuel was required to swear that his complaint was not made out of "levity or by collision [collusion] or restraint between himself and Elizabeth for the mere purpose of being separated, but "in sincerity and truth for the causes mentioned in the foregoing petition or libel."

John Redmon, the clerk and justice of the peace of Independence County, issued a writ of summons for Elizabeth Tygert Allen. Joseph H. Egner, the deputy sheriff of Independence County, executed the writ in Ruddell Township on June 8, 1827.

On July 10, 1827, Elizabeth, by her attorneys, Robert C. Oden and William Cummins, filed a cross bill and answer to Samuel's petition for divorce. In it Elizabeth stated that she did "honor and obey him [Samuel], and do all things in her power to promote his domestic happiness and did not . . . in any wise disregard or neglect her marriage vows or the obligations she owed . . . but in all things demeaned herself as an affectionate wife." Then on her own part, Elizabeth alleged that Samuel "without any provocation or cause whatever frequently use[d] rude and unkind language . . . and endeavoured to render her condition miserable and degraded, and did not . . . observe and keep his marriage vows . . . but did from time to time within the first six months after their marriage beat and bruise [Elizabeth] by striking her with his fist and by other means." Elizabeth stated that eventually things progressed to the point that he ordered and compelled her to "leave his bed and board contrary to her wish and intention, and would not for a length of time permit her to return to his house, that she did afterwards return and was again compelled from the same causes to leave his house." She further stated that his allegation that she was naturally impotent and incapable of procreation was false. She asked the court not to grant Samuel's petition for a divorce a vinculo matrimonii, but that the court would grant her a divorce a mensa et thorro and allow her maintenance out of Samuel's estate in an amount sufficient to take care of her and compensate for the injuries and degradations she suffered. She asked the court to order Samuel to state under oath the contents of his estate including "in what kind of property it consists whether in lands, negroes, stock, money, debts, dues, reversions, or any other rights whatsoever and in what amount of each it consists, where situated, and in whose hands or possession." She also was required to swear that the allegations in her bill were true and not made from "levity or collison [collusion] but in sincerity and truth."

On July 10, Samuel filed a demurrer to Elizabeth's answer and cross bill. A demurrer is a pleading stating that although the facts alleged in a complaint may be true, they do not state a legal cause of action, and thus the plaintiff is not entitled to sue. Samuel's justifications for his demurrer were that Elizabeth was required to answer his petition by her "next friend" and had no right to file a cross bill at all. A "next friend" is one who acts for the benefit of an incompetent or minor plaintiff (or, during this period a married woman appearing in her own right), but who is not a party to the lawsuit and is not appointed as a guardian. Elizabeth filed a joinder (or objection) to the demurrer, and the demurrer was overruled by Judge James Woodson Bates, who awarded Elizabeth her costs expended in the demurrer. Samuel tendered a bill of exceptions to Judge Bates' ruling, but Elizabeth's counsel objected to his offering because the exceptions were not tendered when the decision of the court was handed down, and thus, too much time had elapsed between the decision and the exceptions. Her objection was sustained by the court, to which opinion Samuel also excepted.

On July 10, John Redmon issued subpoenas "forthwith" for Eli Sherrell, Daniel Lasewell, Sally Walker, James Davis, Lewis Moulder, John W. Meacham, Gabriel Frost to appear immediately at the court house in Batesville to testify on behalf of Elizabeth, and John Spence and Jesse Miller to testify on behalf of Samuel. The subpoenas were executed on John Spence and Jesse Miller on the same day by Sheriff Charles Kelly. Such a subpoena was unusual in territorial Arkansas. Usually witnesses were summoned to the next term of court, which would be several months in the future, to allow them traveling time to get to court.

On July 11, Charles Kelly executed the subpoenas on Sherrell, Lasewell, Walker, Davis, Moulder, Frost and Meacham. Redmon on this day issued subpoenas for Brezilla Bell and Andrew Cresswell to testify on behalf of Samuel, and for David and Nancy Vance to testify on behalf of Elizabeth. These subpoenas also required immediate appearance.

On July 12, 1827, John Redmon issued a subpoena for John Davis to testify on behalf of Samuel, and it was executed later on the same day. Apparently before this subpoena was executed, however, a jury convened to hear the case. The jury consisted of John Dearman, William Caldwell, James D. Gibbins, Thomas Moore, John Kyler, Ellis Ragsdale, Aaron Gillett, William P. Morris, Henry Perry, C.H. Pelham, James Boswell, and John Ringgold. The jury found that Elizabeth had cause to leave Samuel's bed and board and that she was not naturally impotent. After the jury handed down its decision, Samuel filed five bills of exceptions to the decision. Today, of course, juries do not hear divorce cases in Arkansas.

His first exception, marked "A," stated that John Kyler, one of the jurors, had been asked whether he had formed and delivered an opinion in this case to which he replied that he had said that he "thought the case would end where it began," but had not formed or delivered any opinion upon the issues on trial. Presumably, then, Samuel was objecting to the implication that Kyler was not an objective fact finder and that he had a preconceived opinion of the case that did not take into account the issues and evidence brought forth at the trial. The law of the time stated that a juror could be dismissed if he had formed a pre-existing opinion on a case. Interestingly, however, during this year the law was changed by the legislature to allow such opinions.

In his second exception, marked "B," Samuel argued that his counsel had asked a witness whether Elizabeth "did not propose to you that she would get what she could of Allens property and go off with you. . ." The court, apparently, would not permit the witness to answer the question unless it concerned the time before the final separation. Samuel's counsel asked leave to except to this ruling. The court ruled that the bill of exceptions would be drawn after the next recess. After the recess, the court changed its mind, and both the court and Elizabeth's attorney gave leave to Samuel's attorney to examine the witness. Apparently Samuel's attorney changed his mind also, and declined to examine the witness, to which the court replied that by doing so, Samuel's attorney waived the right to object. The attorney appealed this ruling

In the bill marked "C," Samuel stated that his attorney had asked a witness "whether [Elizabeth] did not tell witness that she would let him sleep one night with her for a comb." The court had disallowed the question because it was not asked whether the offer was made before the last separation and because if it was answered, either affirmatively or negatively, it would not be relevant to the issues. Samuel thus objected to the court's refusal to permit the witness to answer the question.

In his fourth bill of exception, Allen stated that his attorney had asked a witness who had been sent by him to persuade his wife to return to his home whether he thought "it was safe for her to come home." The court apparently overruled this question and would not permit the witness to answer leading Samuel to except.

Finally, in the bill marked "E," Samuel stated that he had offered to prove by a witness who was present at the first separation of the parties, that they had separated in peace, and that Elizabeth had told Samuel that she believed they could live together if it were not for the Samuel's relations. The witness also stated that the couple had resided together again after this initial separation. The testimony of this witness was rejected by the court because it had no relation to the issues at trial, and Samuel again excepted to this decision of the court.

On July 13, the day after Samuel had filed his bills of exceptions, Elizabeth swore to and filed a schedule of Samuel's estate. In her answer and cross bill, she had asked the court to require Samuel to disclose all of the assets in his estate. He had apparently refused to comply, and thus Elizabeth took the liberty of informing the court as to her beliefs of what he owned. Under oath she stated that his estate consisted of the following:

"Four negroes to wit Jack worth $1000 Abraham worth $450 John worth $200 Alice worth $350 2 head of horses worth $80 – one yoke of oxen worth $40 one cart worth $25 one debt on Joseph Kellett for $35 one rifle gun worth $20 two feather beds worth $30 2 bed stacks worth $4 3 blankets 2 sheets & 2 coverlids worth $7 50/100 2 tables worth $3 – one cupboard worth $1 50/100 5 table cloths worth $10 – and divers pots & other articles of household & kitchen furniture worth $50 – one hundred & sixty acres of land worth $350 one other tract of land of Eighty acres worth $500 Five negroes in the state of North Carolina willed by the Father of said Allen to him as this deponent understood from the son of said Allen & sd Allen himself, worth $400 each . . . as this affiant would suppose from the general value of slaves, 30 head of hogs worth $60." The 1830 Census shows Samuel Allen as living in Ruddell Township of Independence County. The census lists one free white male between 60 and 70 years of age, one free white female between 30 and 40 years old, two male slaves, one under ten and the other between 24 and 36 years old, and one free male "colored person," between 24 and 36 years old.

Later on that day, the circuit court handed down an interlocutory decree. It granted Elizabeth a divorce a mensa et thoro, allowing her to live apart from Samuel. Thereafter, Samuel would not be permitted to exercise control over her and he was required to pay David Vance, the appointed trustee, $60 for her maintenance and support within three months. Vance was required to enter into bond with two securities in the sum of $120 to ensure that he would appropriate the money Samuel gave him to the support and maintenance of Elizabeth. Samuel, predictably, prayed for an appeal and entered into an appeal bond on July 13th. Richard Searcy and Townsend Dickinson were securities for his bond. For his appeal, Samuel filed two assignments of errors

In the first assignment of errors, he pointed out four errors of the lower court. First of all, he stated, the court had erred in overruling the demurrer. Secondly, the court had erred for all the causes he had previously set forth in the bill of exceptions (see above). Third, he argued that it was error to permit Elizabeth to give evidence as to his property. Finally, the circuit court had no right to allow alimony.

In his second assignment, he argued ten more errors. First, he stated that Elizabeth could not file an answer except by her "next friend." Secondly, he stated that she could not combine a cross bill and an answer. The basis of the third error he identified is unclear – it merely states "B-444-8-" which looks like a citation to a legal authority that would have been well known to everyone. He restated his objection to the juror's statement. Samuel also argued that there was no evidence that Elizabeth had offered to go off with an individual subsequent to the separation, but that he was willing to hear testimony. Samuel apparently believed her offer took place before the final separation. Additionally, Samuel stated that there was no evidence that she offered to lodge an individual, but that he wished to prove this fact. He stated that all of the testimony the court refused to admit was not in any way connected with the issues. In his 8th assignment of error, he contended that the witness who mentioned the first separation was error–either allowing the witness to testify, or the subject of the first separation. He further stated that allowing Elizabeth's affidavit concerning his property was not in relation to the issues, the court had not passed on the point to which this was related and it had no bearing on the decision as it was made and that this court had a right to pass upon. Finally, appeals were generally not permitted in this case, and the attorneys instructed the court to "see the laws."

On October 3, 1827, John Redmon certified the record of proceedings in the circuit court of Independence County, recounted above, and sent it to the Superior Court of Arkansas Territory where the case was continued under advisement on October 24, 1827.

At some point before the hearing by the Superior Court, Elizabeth's attorney, William Cummins, answered Samuel's appeal and filed a brief which stated that the Court did not err in overruling the demurrer, nor did it err in anything appearing on the face of the bills of exceptions. Her brief prayed that the court examine the records and the supposed errors and "do what to law and justice may appertain." Furthermore her brief stated that the fourth error assigned by Samuel had no relation to the case and was only permitted by the court to afford information to enter an interlocutory decree. Elizabeth denied that alimony was decreed by the court, but admitted that the decree was in her favor for temporary maintenance.

On April 4, 1828, the Superior Court handed down its opinion. The Court noted that various reasons were assigned by Samuel for reversing the lower court's decree, but the Superior Court found the first point dispository in favor of Samuel and confined its opinion to a discussion of that point alone. That point was that the circuit court had erred in overruling the demurrer. Instead of answering Samuel's bill, Elizabeth had filed a cross bill praying for a divorce from bed and board and for alimony. This, the Superior Court said, was "clearly irregular." According to the Court, the bill should have been answered and the allegations therein contested before the cross bill could be properly filed. Because the Court believed that this error of the lower court disposed of the case, it reversed the decision of the circuit court of Independence County and ordered that all of the proceedings in the suit after Elizabeth's filing of her bill be set aside. Furthermore, since Elizabeth was a "femme covert" (married woman), the court could not decree costs against her. This, the court thought, showed very conclusively that she should appear by her next friend.

At some point (perhaps on April 16, 1828; there is a date discrepancy in the Superior Court docket book), the Superior Court ordered that the case be remanded to the circuit court of Independence County for a new hearing. It is unclear how the case was finally resolved by the lower court because on October 28, 1828, by consent the court ordered that the "cause be stricken from the docket of the court."

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