CHAPTER XV_A History of Matrimonial Institutions, Vol. 2 of 3

DIVORCE IN THE AMERICAN COLONIES

[BIBLIOGRAPHICAL NOTE XV.--The most valuable original material

for the history of divorce in Massachusetts during the period of

the first charter is afforded by the decisions of the court of

assistants in the exercise of its primary jurisdiction. These

may be found in Vol. I of the _Colonial Records_, to September

7, 1641; the Barlow _MS. Records of the Court of Assistants_,

October 28, 1641, to March 5, 1643/44; published by Whitmore

in _Bibliographical Sketch of the Laws of the Mass. Colony_

(Boston, 1890); and, after an interval for which the record

is missing, in Noble's _Records of the Court of Assistants_,

March 3, 1673, to March 23, 1691/92 (Boston, 1901). A number

of cases have been found in the _MSS. Early Court Files of

Suffolk_, supplemented by the _MSS. Records of the County Court

of Suffolk_, and the _MSS. Records of the County Court of

Middlesex_. The _Massachusetts Colonial Records_ are, of course,

very important. There is an instructive passage in the first

volume of Hutchinson's _History of Mass._ (Salem, 1795); and

much aid has been given by Whitmore in the work already cited;

Newhall, _Ye Great and General Court_ (Lynn, 1897); Goodwin,

_Pilgrim Republic_ (Boston, 1888); and Cowley, _Our Divorce

Courts_ (Lowell, 1880). The last-named work in part had already

appeared in the _Albany Law Journal_, XX (Albany, 1879). It may

be read in connection with the same writer's _Famous Divorces

of All Ages_ (Lowell, 1878); and his _Browne's Divorce and its

Consequences_ (Lowell, 1877). For the period of the second

charter the divorce record is missing until 1739. Between that

date and 1760 the _Suffolk Files_ already mentioned yield eleven

cases. From 1760 to 1786 there is a continuous and apparently

complete record in a MS. "Divorce" book in the office of the

clerk of the supreme judicial court for Suffolk county.

An interesting petition may be found in the eighth volume of

the _Collections of the New Hampshire Historical Society_; and

in general for all the New England colonies the records and the

various collections of laws mentioned in Bibliographical Note

XII have been used. Durfee, _Gleanings from the Judicial History

of Rhode Island_ (Providence, 1883), and Arnold, _History of

the State of Rhode Island_ (New York, 1874), are also helpful.

Trumbull, _Appeal to the Public_ (New Haven, 1788), gives some

statistics in connection with the alleged laxity of Connecticut

divorce laws; but historically his statements are misleading and

very inaccurate.

In the southern colonies the English divorce laws were in

abeyance, except in case of separate alimony. The meager

materials existing for a "negative" sketch are therefore derived

almost wholly from the judicial decisions. Among these--cited

more fully in the footnotes--the most instructive are: for

Virginia, Fulcher _v._ Fulcher, in 1 Palmer's _Calendar of

Va. State Papers_ (Richmond, 1875), 29; Purcell _v._ Purcell,

4 Hening and Munford's _Reports_ (Richmond, 1854), 506;

and Almond _v._ Almond, 4 Randolph's _Reports_, 662, or 15

_American Decisions_, 781. For Maryland, Galwith _v._ Galwith,

4 Harris and McHenry's _Md. Reports_ (Annapolis, 1818),

477; Farnshill _v._ Murray, 1 Bland's _Reports_, 479, or 18

_American Decisions_, 344; Helms _v._ Franciscus, 2 Bland's

_Reports_, 544, or 20 _American Decisions_, 402; Wallingsford

_v._ Wallingsford, 6 Harris and Johnson's _Reports_, 485;

Macnamara's case, Scott's case, Govane's case, all in 2 Bland's

_Reports_, 566, 568, 570; Crane _v._ Meginnis, 1 Gill and

Johnson's _Ch. Reports_, 468, or 19 _American Decisions_,

237; Wright _v._ Wright's Lessee, 2 _Md. Reports_, 429, or 56

_American Decisions_, 723; and Jamison _v._ Jamison, 4 _Md.

Ch. Reports_, 289, 295. For Georgia see Finch _v._ Finch, 14

_Georgia Reports_, 362; and especially Head _v._ Head, 2 Kelly's

_Reports_, 191.

The _New York Colonial MSS._ preserved in the State Library at

Albany have yielded several documents of importance for the

chapter. Cadwallader Colden, the last governor of the province,

has an instructive passage in his _Letters on Smith's History

of New York: Collections New York Historical Society_, Fund

Series, I, 1868, showing that in the early period divorces were

granted by the royal governors. Various cases and illustrations

have been gleaned from Gerard, _The Old Stadt Huys_; Valentine,

_Manual of the Corporation_; _Records of New Amsterdam_;

Munsell, _Annals of Albany_; _Duke of Yorke's Book of Laws_;

_New Jersey Archives_; O'Callaghan, _Ordinances_; and especially

O'Callaghan and Fernow, _Documents_--all of which have been

described in Bibliographical Note XIV. A number of extracts

from old records have been borrowed from Alice Morse Earle's

excellent book _Colonial Days in Old New York_ (New York,

1896); and among the decisions cited, Chancellor Kent's opinion

in Williamson _v._ Williamson, Johnson's _Chancery Reports_,

488, 491; and that of Chancellor Walworth in Wood _v._ Wood, 2

Paige's _Chancery Reports_, 108, 111, bearing on the validity of

the common law in the province, are of special interest.

The materials for Pennsylvania are furnished by Linn,

_Charter and Laws_; the _Colonial Records of Pennsylvania_;

Bioren, _Laws_ (Philadelphia, 1803); and Gordon, _History of

Pennsylvania_ (Philadelphia, 1829). Lastly, for the entire

group of colonies, Kent, _Commentaries_ (Boston, 1884); Story,

_Commentaries_ (Boston, 1891); and particularly Bishop,

_Marriage, Divorce, and Separation_ (Chicago, 1891), have been

of service.]

I. IN NEW ENGLAND

Under normal conditions civil divorce is the counterpart of civil

marriage. Naturally, in the New England colonies the same influences

which determined the rise of civil marriage secured also the

adoption of a liberal policy respecting divorce. In each case there

was a reaction against the forms and abuses of the ancient canonical

and ecclesiastical systems; while at the same time the innovations

were in a measure sustained by appeal to the Levitical code.

Everywhere as a result the ideas of the Reformation Fathers--the

general trend of Protestantism--found effective expression in

statute and judicial decree. For in most respects throughout New

England the broad modern doctrines of the _Reformatio Legum_ of

Edward VI.'s commission, though scarcely even now completely

victorious in the mother-land, were from the outset put in practice

by both Puritan and Separatist. The American legal conception of

divorce as pertaining, not to the criminal, but exclusively to the

civil jurisdiction, had its birth in the seventeenth century.[947]

In all the New England colonies the canonical decree of separation

from bed and board was practically, though not entirely, abandoned.

On the other hand, a dissolution of the bond of matrimony was freely

granted for various causes, such as desertion, cruelty, or breach

of the marriage vow; and usually, though not always, the husband

and wife were dealt with as equals before the law. These general

principles will be illustrated, somewhat in detail, by reference to

the history of the particular provinces.

[Footnote 947: On the "divorce suit as civil or criminal" see,

however, BISHOP, _Marriage, Divorce, and Separation_, II, secs.

483-88, pp. 218-20; also KENT, _Commentaries_, 100.]

_a_) _Massachusetts._--For the Bay Colony we have a concise summary

from the pen of Governor Hutchinson, who presided in the divorce

court for many years. "In matters of divorce," he says, "they left

the rules of the canon law out of the question; with respect to

some of them, prudently enough. I never heard of a separation,

under the first charter, _a mensa et thoro_. Where it is practised,

the innocent party often suffers more than the guilty. In general

what would have been cause for such a separation in the spiritual

courts, was sufficient, with them, for a divorce _a vinculo_. Female

adultery was never doubted to have been sufficient cause; but male

adultery, after some debate and consultation with the elders, was

judged not sufficient. Desertion a year or two, when there was

evidence of a determined design not to return, was always good

cause; so was cruel usage of the husband. Consanguinity they settled

in the same degrees as it is settled in England and in the levitical

laws."[948]

[Footnote 948: HUTCHINSON, _Hist. of Mass._, I, 393.]

By the code of 1660 the court of assistants, sitting twice a

year, is given authority to hear and determine "all causes of

divorce."[949] This is the only extant law on the subject for the

period of the first charter. It is, however, almost certain that the

assistants in the "quarter courts," or other tribunals, possessed

such jurisdiction from the beginning. It is probably intended to

be covered by the authority conferred on the quarter courts in

1639;[950] and the evidence of the Halsall case shows that as early

as 1656 "the power of divorce doth properly belong" to the court of

assistants. From the same case it has been inferred that the code of

1649 may have contained a like provision.[951]

[Footnote 949: WHITMORE, _Col. Laws of Mass._ (1660-72), 36;

(1672-86), 143.]

[Footnote 950: It is ordered "that such of the magistrates as

shall reside in or near Boston, or any 5, 4, or 3 of them, the

Governor or Deputy to be one, shall have power to assemble

together upon the last fifth day of the eighth, eleventh, second,

and fifth month, every year, and then and there to hear and

determine all civil causes whereof the debt or trespass and

damages shall not exceed £20, and all criminal causes _not_

extending to life, or member, or banishment, according to the

course of the Courts of Assistants, and to summon juries out of

the neighboring towns."--_Mass. Col. Rec._, I, 276. In 1648 the

number of such courts was reduced to two: _ibid._, II, 286; III,

175.]

[Footnote 951: In the petition for divorce in the Halsall case

the counsel for the plaintiff says: "But considering the power of

divorce doth properly belong to the Honored Court of assistants

as is expressed in an order of the general Court (May 16, 1656)

& a president ther is for it (namly Mr. freeman sometimes of

Watertowne) & the law admitts it (page 17)."--_MSS. Early Court

Files of Suffolk_, No. 257. From the last phrase (in which he

reads "submitts" for "admitts") WHITMORE thinks it "a reasonable

surmise that this clause stood in the code of 1649, under the

title Courts": _Bibliog. Sketch_, 101, note. The general court,

referring to the same case, declares that it "doth properly

belong" to the court of assistants: _Mass. Col. Rec._, IV, i,

272. COWLEY, _Our Divorce Courts_, 10, mentions the error of

PALFREY, _Hist. of U. S._, II, 17, who says the superior "courts

had jurisdiction in cases of divorce."]

Neither the right of appeal nor the causes or kinds of divorce are

defined by the statutes. Information regarding these important

points must be sought in the cases themselves. As a result of the

failure of positive legislation, there is a lack of precision

and harmony in the judicial practice of the entire colonial and

provincial eras. For the period 1639-92, as shown in Table I, forty

actions for divorce or annulment of marriage have been discovered.

Thirty-one of these are mentioned by Newhall, Whitmore, Goodwin,

and Cowley, not less than eighteen being found by the latter in

the assistants' records for the years 1673-92, since edited by Mr.

Noble.[952] The remaining nine cases are here added from further

search in the court records and the Suffolk Files. The records

of the court of assistants from 1644 to 1673 are missing; else

doubtless the list might be considerably enlarged.

[Footnote 952: COWLEY, _Our Divorce Courts_, 28-31; WHITMORE,

_Biog. Sketch_, 99-101, note; NEWHALL, _Ye Great and General

Court_, 380-84; GOODWIN, _Pilgrim Republic_, 596.]

The first case thus far brought to light is that of James Luxford,

elsewhere considered. On December 3, 1639, his bigamous marriage

was declared void by the "Court of Assistants or Quarter Court;"

and very righteously "all that he hath" as a kind of alimony was

given to the woman last married and to her children.[953] A similar

instance of having two wives was dealt with in November, 1644.[954]

[Footnote 953: _Mass. Col. Rec._, I, 283. For this case and that

of Frier _v._ Richardson see above, chap. xii, p. 159.]

[Footnote 954: Elizabeth Frier _v._ John Richardson: _Records of

Court of Assistants_, 1641-1643/44 (Barlow MS.): published in

WHITMORE, _Bibliog. Sketch_, xlii; also in _Mass. Col. Rec._, II,

86.]

TABLE I

[Transcriber's note: 'Marriage dissolved' has been shortened to 'Mar. dis.' to

conserve space in the following table.]

CASES OF DIVORCE AND ANNULMENT OF MARRIAGE IN MASSACHUSETTS, 1639-92

==============================================================================

--+----------------+--------+----------------+----------+-----------+--------+

1|C.R., I, 283 |Dec. 3. |Second wife _v._|Another |Assistants |Marriage|

2|W., 42 |Mar. 5, |Anne _v._ |Desertion,|Assistants |Mar. |

| | 1643/4 | Dennis Clarke | adultery | | dis. |

3|W., 42; |Nov. 13,|Eliz. Frier _v._|Another |Assistants |Marriage|

4|C.R., IV, i, 32 |Oct. 16,|Wm. _v._ |Deser., |General |Mar. |

6|C.R., III, 350, |May 14, |Dorcas _v._ |Desertion,|General |Mar. |

| IV, i, 190 | 1654 | Jno. Hall | adultery?| court | dis. |

| | 1656 | Freeman | | | |

8|Suff. Files, 257|1655-59 |Joan _v._ |Adultery |Assists. to|Mar. |

| 272, 380, 401 | | | | |reversed|

| IV, i, 259, 269| 1656 | Clements | | ref. of g.| |

| | | | | ct. | |

| | | | | ct. | |

11|C.R., IV, ii, 8 |May 22, |Rachel _v._ |None given|General |Mar. |

| | 1661 | Jos. Langton | | court | dis. |

| | 1664 | Sarah Helwis |remarriage| | dis. |

| | | | of h.; | ct. | |

15|Plym. Rec., |Aug. 3, |James _v._ |Desertion,|General |Mar. |

| v, 33 | 1670 | Eliz. Skiffe | adultery | court | dis. |

16|C.R. IV, |Oct., |Eliz. _v._ |Desertion,|General |Mar. |

| ii, 465 | 1670 | Henry Stevens | adultery?| court | dis. |

17|Suff. Files, |Oct., |Kath. _v._ |Adultery, |Assistants |Mar. |

| 1148; N., 32 | 1672 | Ed. Nailer | cruelty | | dis. |

18|Suff. Files, |Mch. 4, |Mary _v._ |Deser., |Assistants |Mar. |

| 1360; N., 30 | 1674/5 | Wm. Sanders |remarriage| | dis. |

19|Suff. Files, |1673-77 |Hugh and |Disease |Assistants |Sep. |

| 1644; N., 91 | | Mary Drury | and imp. | | b.b.? |

| | | | of h. | | |

| 205; N., 127. | | | | g. ct. | |

22|C.R., V, 188 |May 9, |Mary _v._ |Long |General |Leave to|

23|N., 127 |1678 |Hope _v._ |Desertion,|Assistants |Mar. |

24|N., 138 |1678 |Rebeckah _v._ |None given|Assistants |Mar. |

| | | Rich. Cooly | | | dis. |

25|Suff. Files, |Oct. 15,|Mary _v._ |None given|General |Mar. |

| 1807; C.R., V, | 1679 | Aug. Lyndon | | court | dis. |

| 248, 249 | | | | | |

26|N., 144 |1679 |Mary _v._ |Deser., |Assistants |Mar. |

27|N., 147 |1679 |Mary _v._ | |Assistants | |

28|N., 168 |1680 |Sus. _v._ |Deser., |Assistants |Mar. |

29|N., 197 |1681 |Sam. _v._ |Adultery, |Assistants |Mar. |

30|N., 200 |1681 |Dorcas _v._ |Deser., |Assistants |Mar. |

31|N., 208 |1681 |Rachel _v._ | |Assistants |Mar. |

| | |Lawrence Clenton| | | dis. |

32|N., 227 |1682 |Eliz. _v._ |Bigamy |Assistants |Mar. |

| | | Robt. Street | | | dis. |

33|N., 229 |1683 |Petition of | |Assistants |Denied |

34|N., 240 |1683 |Eliz. _v._ |Incest, |Assistants |Mar. |

35|N., 256, 258 |1684 |Sarah _v._ | |Assistants |Mar. |

| | | Thos. Cooper | | | dis. |

36|Suff. Files, |Sep. 17,|Petition of |Adultery |Assistants |Mar. |

| 2347 | 1685 | Thos. Winsor | | | dis. |

37|N., 326 |1690 |Phillip _v._ |Deser., |Assistants |Mar. |

38|N., 242 |1690-91 |Mary _v._ |Adultery, |Assistants | |

39|N., 361 |1691 |Hannah and |Affinity |Assistants |Marriage|

40|N., 342 |1690 |Sam. and |Affinity |Assistants |Marriage|

| | | | wid.) | | |

--+----------------+--------+----------------+----------+-----------+--------+

Earlier in the same year "Anne Clarke" was released from her husband

Dennis for desertion, "refusing to accompany with hir," and for

living in adultery with another woman.[956] The case of Joan and

George Halsall, 1655-59, is especially enlightening regarding the

early law and procedure in divorce suits. Joan's original petition

was presented to the general court, by which, as already noted, the

matter was referred to the assistants for "final determination."

In a later petition to the last-named tribunal the injured wife

complains not only of her husband's "frequent abusing himself with

Hester Lug," but "also of his wicked, constant & unsufferable

expense" in "mulled sack and otherwise" with another woman of

equally bad reputation, humbly asking that she "may be dismissed

from her intolerable burden--an uncleane yoake-fellow."[957] The

decree of the court is missing, but elsewhere we learn that her

prayer was granted.[958] The fact is noteworthy; for seemingly

this marriage was dissolved solely for the man's adultery.[959] If

so, down to 1776, as will later appear, it is the only known clear

exception to the rule mentioned by Governor Hutchinson. The case

was, however, not yet ended. Halsall appealed to the general court;

and so, on November 12, 1659, after the decree of the assistants

had been in force for three years, it was declared void and George

was allowed to "have and enjoy the said Joan Halsall, his wife,

again."[960]

[Footnote 955: N. = NOBLE'S _Records of the Court of Assistants_,

I; W. = _Record of the Court of Assistants_, in WHITMORE'S

_Bibliog. Sketch_.]

[Footnote 956: _Records of Court of Assistants_, 1641-43 (Barlow

MS.): published in WHITMORE, _op. cit._, xlii.]

[Footnote 957: The two petitions are in the _MSS. Early Court

Files of Suffolk_, No. 257; and the reference of the general

court in _Mass. Col. Rec._, IV, i, 272.]

[Footnote 958: _Mass. Col. Rec._, IV, i, 401.]

[Footnote 959: Of course, the alleged "wicked expense" may

possibly have been admitted as a second ground.]

[Footnote 960: _Mass. Col. Rec._, IV, i, 401. The reason for

Halsall's petition is not stated. Was it, perhaps, that "male

adultery" was not a sufficient ground of divorce?]

Jurisdiction on appeal thus belonged to the general court. This

is further shown by the peculir case of Hugh and Dorcas March.

In 1678, for "y^e peace & satisfaction" of his conscience, Hugh

asked the court of assistants to decide whether he might legally

retain Dorcas as his wife, alleging that her former husband was

living and hinting that a divorce from him had never been secured.

With much parade of law and logic, in a long and vague petition,

probably drafted by his attorney, he betrays far more anxiety to

get rid of his spouse than to quiet the throes of an outraged

conscience. The secret of this is clearly disclosed by Dorcas in

the counter-petition, written by her own hand, and proving her to

be a better lawyer than her husband's counsel. It seems she had

been "for some yeares y^e wife of Benoni Blackleach," with whom

she had formerly lived in Connecticut. About nine years before the

present action Blackleach "was taken in a crime worthy of death by

y^e Law," but he escaped from his captors. Six months thereafter

he sent her a letter saying he dared not call her his wife, and

subscribing himself her "friend not husband." Later, not knowing for

six years whether he was living or dead, Dorcas came to her friends

in Massachusetts, bringing with her, on the advice of "y^e honored

Gouernor Winthrop," the "testimonys" sworn against her guilty

consort. These, together with a petition for the determination of

her status, she laid before "y^e honord Court in Boston," Governor

Winthrop being present when the case was "agitated." This tribunal

adjudged her a "free woman," as "some of y^e honored Magistrates did

tell" her.[961] Presently she was solicited in marriage by March, he

giving her an "Ingagement vnder his hand of one hundred pounds of

y^e best of his estate," promising "y^t he would remove his children

from him y^t they might not make any disturbance between" them. Then

they were "published," joined in wedlock "by y^e honord Deputy

Governor," and thereafter "Lived comfortably." Next we reach the

heart of the business. Hugh's children "liveing in y^e familie" did

"shamefully slight" her, purloining from her box the said "writing"

of a hundred pounds; and their father disowned her as his wife. This

conduct, she suggests, is due to a desire to "please his children"

rather than to the scruples of a tender conscience. The magistrates

were not moved by her plea. According to the record, "It was put

... whither Hugh March & said Dorcas might still lawfully live as

man & wife;" and "the Court Resolved it in the Negative."[962] With

this decree Hugh was not content. So on October 2, 1678, he prays

the general court "to put a full Determination to the case." After

a fortnight that body responded by overruling the lower court's

decision, and declaring that the "sajd March ought to take the

sajd Dorcas & reteyne hir as a wife, and to obserue & fullfill the

marriage covenant according to his Engagement."[963]

[Footnote 961: The petition and decree here mentioned are not

in the _Suffolk Files_. Perhaps further search in the _Mass.

Archives_ would bring them to light.]

[Footnote 962: _MSS. Early Court Files of Suffolk_, No. 1741

(Sept. 9).]

[Footnote 963: _Mass. Col. Rec._, V, 205.]

In 1668 a petition to the county court of Suffolk for a "bill of

divorce" was referred to the assistants, because it "was not proper

to the cognizance" of the former body.[964] On the other hand, in

the exercise of its superior authority a case might be sent to the

lower court with power to render a final decree. Thus in May, 1656,

was so referred "unto County Court of Charlestown" the petition of

William Clements of Watertown, "craving a divorce from his wife who

for several years hath refused marriage fellowship with him."[965]

The lower court proved conservative. Not only was a divorce denied,

but the couple were commanded to "own each other according to

their marriage covenant," on pain of being "severely punished" for

refusal.[966]

[Footnote 964: Case of Christopher and Elizabeth Lawson: _MSS.

Early Court Files of Suffolk_, No. 913. Though the decree in this

case has not been discovered, it is certain that it came before

the assistants; for the papers in the proceedings are marked

"_vera copia_ E[dward] R[awson] S[ec.]". In the Nailer case,

mentioned below, there was similar reference from the county

court to the court of assistants.]

[Footnote 965: _Mass. Col. Rec._, IV, i, 259, 269; _cf._

WHITMORE, _Col. Laws of Mass._ (1660-72), 100, note.]

[Footnote 966: _MSS. Rec. of the County Court of Middlesex_, I,

85. In the same year the case of "Mary Batchiler" was referred

for settlement to the county court of York: _Mass. Col. Rec._,

IV, i, 282.]

The general court was at once the legislature and the supreme

judicial tribunal of the colony. In relegating the trial of divorce

suits to the court of assistants it by no means surrendered its

right to exercise the primary jurisdiction. A number of cases make

it almost certain that it entertained and decided such cases in

the first instance. William Palmer was so divorced in 1650.[967]

Two years later Dorothy Pester, having waited "w^{th} patience

tenn yeeres for the retourne of her husband" William, prays "that

she might not still be held in such bondage." Whereupon the

court mercifully granted her "libertje to marry when God by his

providence shall afoord her an Oppertunitje."[968] In the same way

in 1654 Dorcas Hall was released on account of the desertion and

other misconduct of her spouse.[969] "Rachel Langton, or Verney,"

was set "free from her late husband, Joseph," in 1661, no cause

being assigned.[970] In 1663 the petition of Margaret Bennet in

behalf of her daughter Mary White was denied.[971] A decree was

granted in a peculiar form in 1670. In answer to the petition of

Elizabeth Stevens, whose husband had deserted her and been guilty

of "familiarity" with another woman, the "Court judgeth it meete

to declare, that the petitioners marrying again another man shall

not be indangered thereby as a transgression of our lawes."[972]

The petition of Mary Maddox in 1678 alleges that her husband Henry

had been absent unheard of for "a thirteen yeares." She was

accordingly freed from the conjugal bond and put "at liberty to

dispose of herself as she shall see meete."[973] Very generous

alimony is sometimes allowed the injured woman. On October 15,

1679, because Augustine Lyndon "hath in so many Particulars Broken

Covenant," his wife Mary is granted a full divorce, besides being

awarded two-thirds of her husband's lands and the "small matter

that now Remaineth in Deacon Allen's hands" for the use of herself

and children, "till the County Court shall take further Order."

The next day, on a second petition, additional property is decreed

to the "late wife of Augustine Lyndon now Mary Sanderson," showing

apparently that she was permitted to resume her maiden name.[974]

The eight[975] divorces just enumerated are all granted by the

general court on petitions precisely similar to those regarding

other matters dealt with by that body in the first instance. To all

intents and purposes they are "legislative" divorces; as much so,

in fact, as are those so often sanctioned by the state legislatures

during the present century.

[Footnote 967: _Ibid._, 32.]

[Footnote 968: _Ibid._, 89; III, 277.]

[Footnote 969: _Ibid._, III, 350; IV, i, 190.]

[Footnote 970: _Ibid._, IV, ii, 8.]

[Footnote 971: Mary complained of her husband's "deficjency":

_ibid._, IV, ii, 91.]

[Footnote 972: _Ibid._, IV, ii, 465.]

[Footnote 973: _Ibid._, V. 188.]

[Footnote 974: _MSS. Early Court Files of Suffolk_, No. 1807.

This document begins: "At a Generall Court." The case is also in

_Mass. Col. Rec._, V, 248, 249.]

[Footnote 975: The divorce of James Skiffe was also granted "Att

a Generall Court held vpon the Vineyard": _Plym. Col. Rec._, V,

33. See subsection _b_) below.]

The remaining cases mentioned in the table are for the most part

very simple and require but little comment here. Two are only known

from incidental notice in other records.[976] Four are contained

in the _Suffolk Files_.[977] In one of these the divorced husband,

who had broken the marriage vow and been guilty of "Inhuman Carriage

& Satanic Cruelty" toward his wife and children, was banished

ten miles from Boston; and later, when he was permitted to visit

that town on business, he was required to give bond "to be on

good behavior towards his late wife."[978] It is significant that

during the seventeenth century not a single clear case of divorce

from bed and board has been discovered in any of the Massachusetts

records.[979]

[Footnote 976: These are the cases of Samuel Freeman (before

1656) and Philip Wharton (before 1678). The first is mentioned in

the Halsall case. _Cf._ WHITMORE, _Col. Laws of Mass._ (1660-72),

100, note, who says: "Samuel Freeman had a wife Apphia, and it

has been thought that his widow married Gov. Thomas Prence of

Plymouth. It has now been suggested that she was divorced, and

married a second time while Freeman stayed in England, but this

surmise needs examination." The second case is inferred from

the following: "At a Circuit Court at Boston, Apr. 30, 1678,

Philip Wharton and Mary Gridley, formerly his wife, bound over to

answer for disorderly and offensive cohabiting together, having

sued out a divorce. They owned they lived together. Bonds for

good behavior until next court, especially to refrain from each

other's company."--_MSS. Records of the County Court of Suffolk_,

506. Evidently it was common to resume the maiden name: _cf._ the

Nailer and Lyndon cases.]

[Footnote 977: Cases of Sarah Helwis, Sept. 9, 1664; Katherine

Nailer, 1672; Mary Sanders, March 4, 1674/5; and Thomas Winsor,

Sept. 17, 1685: all in _MSS. Early Court Files of Suffolk_,

Nos. 651, 1148, 1360, 2347. The Sanders case is also in NOBLE'S

_Records of the Court of Assistants_; COWLEY, _Our Divorce

Courts_, 28.]

[Footnote 978: The Nailer case. Two years later (March 11,

1674/5) we learn that "Edward Naylor being Complayned on for

Intruding into his late wiues Katherin Nanny^s Company The Court

on hearing what was lajd to the sajd Naylors charge doe Judge &

declare his bond to be forfeited."--NOBLE'S _Records of Court of

Assistants_, I, 32.]

[Footnote 979: It is just possible that in the case of Mary Drury,

Oct. 10, 1677, the decree is intended as a separation from bed and

board. It is voted "whether the Court [probably the assistants]

would declare it a nullity, past in the negative. Whether they

would be compelled to Cohabit past in y^e Negative."--_MSS. Early

Court Files of Suffolk_, No. 1644. Four years earlier (_ca._

March 5, 1673) the following record appears: "In the case of Hugh

Drury & Mary His Wife The Court after due hearing of the case &

euidences therein produced Doe declare that they Doe enjoine them

both to liue together according to the ordinance of God as man and

wife."--NOBLE'S _Rec. of Court of Assistants_, I, 91.]

During the period of the second charter divorce controversies and

all matrimonial questions are to be "heard and determined by the

governour and council,"[980] whose decrees may be executed by

arresting and committing the "body" of the person disregarding

them.[981] By a law of 1641 it had already been provided that the

divorced wife, if the innocent party, should retain her right of

dower in one-third of the husband's real property for life.[982]

A later act makes provision for alimony. The "superior court of

judicature" is empowered in case of divorce or nullity to assign the

woman "such reasonable part of the estate of her late husband as

in their discretion the circumstances of the estate may admit, not

exceeding one-third part thereof."[983] As in the earlier period,

the causes and kinds of divorce are not determined by legislation;

but an act of 1695 declares that the penalty for "polygamy"--at this

time death--shall not apply to those who marry when the husband or

wife has been absent wilfully or unheard of "by the space of seven

years together."[984] Three years later the term of absence is

shortened, the law taking the form it sometimes has in the other

colonies. It is provided that "if any married person, man or woman,

has lately or shall hereafter go to sea in a ship or other vessel

bound from one port to another where the passage is usually made

in three months' time, and such ship or other vessel has not been

or shall not be heard of within the space of three full years ... ,

or shall only be heard of under such circumstances as may rather

confirm the opinion, commonly received, of the whole company's

being utterly lost, in every such case the matter being laid before

the governour and council, ... the man or woman whose relation is

in this manner parted from him or her may be esteemed single and

unmarried; and upon such declaration thereof, and license obtained

from that board, may lawfully marry again."[985]

[Footnote 980: Nov. 3, 1692: _Acts and Resolves_, I, 61.]

[Footnote 981: Jan. 13, 1755: _ibid._, III, 782.]

[Footnote 982: In WHITMORE, _Col. Laws of Mass._ (1672-85), 42,

the date is given as 1641; but _ibid._ (1660-72), 146, it is

1647.]

[Footnote 983: June 19, 1696: _Acts and Resolves_, I, 209; _cf._

_Acts and Laws, 1692-1765_, 60.]

[Footnote 984: June 6, 1694: _Acts and Resolves_, I, 171, 172.]

[Footnote 985: Dec. 2, 1698: _ibid._, 353, 354.]

After 1692 the legislature does not seem to have interfered in

divorce suits either on appeal or in the first instance. In a few

cases the county court of general sessions of the peace is found

granting separate maintenance. Thus in 1710/11, on petition of

Elizabeth Goddard, two men are appointed to examine certain accounts

of her husband John, and to "take into their hands for the use of

the Petitioner what shall appear to be due to him."[986] In 1725

Dorothy, "the wife of John Jackson of Boston Starchmaker," asks for

separate maintenance, alleging that her husband had utterly refused

to provide for her support, and that she "would run the hazzard of

her life in case she should attempt to Enter into his house." The

court orders Jackson to take his wife home, support her according

to his ability, "and keep his Majesty's Peace." On refusal, he is

required to enter into recognizance in the sum of fifty pounds to

make Dorothy a weekly allowance of eight shillings.[987]

[Footnote 986: Jan. 29, 1710/11: _MSS. Records of the Court of

Gen. Sessions of Suffolk_, I, 225.]

[Footnote 987: Apr. 26, 1725: _ibid._, III, 330. For a similar

case, see _ibid._, 311.

In the _MSS. Records of Superior Court of Judicature_, 1725-30,

fol. 284, may be found the following entry: At a court held for

Barnstable and Duke's Cos., Apr. 21, 1730, "Hannah Marshall,

wife of the Rev. Josiah Marshall, complained that she has lived

with him for a considerable time past in daily fear of her life,

threats of being brained, etc. Josiah appeared and made answer.

Hannah admitted to her oath ... Court directed and advised her

to keep at her father's house until further order from the Court

or from the General Sessions. Josiah to find surety for his good

behavior." This is the only case in these records between 1725

and 1780.]

TABLE II

DIVORCE CASES BEFORE THE GOVERNOR AND COUNCIL OF MASSACHUSETTS,

1739-60

(Found in _MSS. Files of Suffolk County_, Vol. DCCXCIII)

========================================================================

---+---------+--------+-------------+----------+--------+---------+-----

1 |.29726 |27-12-38|Gill _v._ |Coer. to | |Yeoman |

| | | Mary Belchar| mar. | | |

2 |.29727 |24- 6-40|Jesse _v._ |Incapacity|M. void |Farmer | 5

3 |.29728 |27- 4-44|Eliz. _v._ |Incapacity| |Carp't'r | 11

4 |.29729 | 5-12-52|G. _v._ |Adultery |M. diss.| Husb'n |

5 |.29730 |13- 6-51|Eliz. _v._ |Bigamy |M. void | | 1

6 |.29730 |26-12-52|Susanna _v._ |Deser., |M. diss.| | 8

7 |.29731 |20- 2-53|Ben. _v._ |Adult., |M. diss.| |

8 |.29732 | 9- 4-54|Petition of |5 yrs. |Lv. tom.|Mariner |

9 |.29733_a_| 1-11-54|Mary _v._ |Adult., |Sep. |Gent. |

10 |.29733_b_| -12-54|Mary _v._ |Cr'l., |Sep. |Gent. | 13

11 |.29734 | - -57|Dan _v._ |Adultery | |Mariner |

---+---------+--------+-------------+----------+--------+---------+-----

The history of divorce legislation is a complete blank for nearly

half a century under the provincial charter. Between 1692 and 1739

the record of the governor and council in such suits is entirely

missing. For the next twenty-one years, 1739-60, eleven cases have

been gathered from the court files (Table II); while during the

following twenty-six years, 1760-86, a continuous and apparently

complete record, showing ninety-six cases, is contained in a

manuscript volume preserved in the office of the clerk of the

supreme judicial court for Suffolk county (Table III).

TABLE III

DIVORCE CASES BEFORE THE GOVERNOR AND COUNCIL, OR THE COUNCIL, OF

MASSACHUSETTS, 1760-86

(From MS. Book of "Divorces" in Office of Clerk of Supreme Judicial

Court, Suffolk County)

[Transcriber's note:

Key:

A = Adultery

C = Cruelty

I = Incapacity

W = Another Wife

Marriage Dissolved condensed to Mar. dis.]

==============================================================================

NO.PAGE| DECREE | CASE [988] +-+--------------+ DECREE |HUSBAND'S |YEARS

--+----+--------+------------------+-+--------------+--------+----------+-----

1| 1 |22- 4-60|Wm. _v._ | |Adultery, |Mar. |Soldier | 3

2| 2 | 9- 6-60|Henrietta _v._ | |Bigamy, |Deferred| |

3| 4 |10- 6-60| Jane _v._ | |Adultery, |Mar. | | ¾

4| 5 | 5- 6-60|Petition of | |Five years' |Leave to|Mariner |

5| 6 | 8-10-60|Mary _v._ | |Cruelty |Accomm- |Truckman |12

5| 7 |14- 2-61|Mary _v._ | |Cruelty, |Separate| |

a| | | Rich. Hunt | | failure to |b. b. | |

| | | | | provide |[988] | |

6| 11 |11- 3-61|Stephen _v._ | |Adultery, |Mar. |Mariner | 6

7| 15 |21- 4-62|Petition of | |Four years' |Leave to|Mariner |

8| 16 |29- 7-62|Wm. _v._ | |Bigamy |Marriage|Gardener | 4

9| 18 |14- 2-63|Ed. _v._ | |Adultery |Mar. |Husbandman| 8

| | | Rebecca Holman | | |dis.[988] |

10| 21 |13- 7-63|James _v._ | |Adultery, |Mar. | | 8

11| 24 |15- 2-64|Eliz. _v._ | |Cruelty, |Separate| | 2

12| 27 | 7-11-64|Elias _v._ | |Adultery, |Mar. |Soldier | 9

13| 29 |10- 4-65|Ben. _v._ | |Adultery |Mar. |Mariner |

| | | Lydia Ingersoll | | |dis.[988] |

14| 32 |20- 6-65|Margaret _v._ | |Cruelty |Dismissed Yeoman |

15| 33 |14- 8-65|Rachel _v._ | |Bigamy |Marriage| | 8

16| 35 |24- 9-66|Russell _v._ | |Adultery |Mar. |Cooper |14

17| 37 | 6- 5-67|Thos. _v._ | |Adultery |Mar. |Yeoman |17

18| 40 |16-12-67|Mary _v._ | |Cruelty, |Separate|Trader |13

19| 44 | 5- 2-68|Ann _v._ | |Desertion, |Separate| |

20| 45 |15- 6-68|Jas. _v._ | |Adultery |Mar. |Trader |11

| | | Mary Dougherty | | |dis.[988] |

21| 48 |14- 9-68|Lucy _v._ | |Cruel., sells |Separate|Truckman |7

22| 51 |17- 4-70|Jno. _v._ |A|Adultery |Mar. |Cordwainer|17

| | | Anna Bragg | | |dis.[988] |

23| 54 |16-7-70 |Wm. _v._ | |Adultery |Mar. |Mariner |15

| | | Susanna Chambers | | |dis.[988] |

24| 57 |18-10-70|Sam. _v._ | |Bigamy |Marriage|Mariner | 1

25| 59 | 9- 5-71|Mary _v._ | |Bigamy, |Marriage| | 6

26| 62 |19- 9-71|Mehetable _v._ | |Bigamy |Marriage|Mariner[?] 2

27| 64 |23-10-71|Jno. _v._ | |Adultery |Mar. |Ropemaker | 6

| | | Jane Crosley | | |dis.[988] |

28| 66 |28-10-71|Cadwell _v._ | |Adultery, |Mar. |Husbandman| 3

29| 68 |17-10-71|Abagail _v._ | |Desertion, |Separate|Physician |1½

30| 70 |10-12-72|Jas. _v._ | |Adul., threats|Mar. |Esquire |20

31| 73 | 3- 2-73|Jos. _v._ | |Adultery, |Mar. |Yeoman |7

32| 75 | 4- 3-78|Sarah _v._ | |Desertion, |Mar. | |

| | | Enoch Kingsley | | remarriage |dis.[988] |13

33| 78 | 2- 3-73|Sarah _v._ | |Cruelty, |Mar. | |

34| 80 | 4-11-73|Martha _v._ | |Cruelty, |Mar. | |

35| 83 |15- 6-74|Martha _v._ | |Desertion, |Mar. | |

36| 85 |15- 6-74|Abigail _v._ | |Adult., ven. |Mar. | |

37| 87 |21-11-76|Asaph _v._ |A|Adultery, |Mar. | |

| | | Naomi Leonard | | elopement |dis.[988] |28

38| 90 |?-12-76 |J. C. _v._ |A|Adultery |Mar. | |

| | | Mary Lewis | | |dis.[988] |

39| 92 |27- 5-77|Isaiah _v._ |A|Adultery |Mar. | |

| | | Mary Thomas | | | dis. | Printer | 7

40| 96 | 5- 9-77|Rosanna _v._ |A|Adultery |Mar. | |

| | | Wm. Scott | | |dis.[988] |11

41|101 |30- 1-78|Joshua _v._ |A|Adultery |Mar. | |

42|104 |14- 7-78|Wm. _v._ |A|Adultery |Mar. | |

43|107 |15-10-78|Jas. _v._ Hannah |A|Adultery, |Mar. | |

44|110 |25- 2-79|Eliz. _v._ |A|Adult., |Mar. | |

45|113 |30-12-79|Ed. _v._ |A|Adultery, |Mar. |Peruke |

46|117 |28- 2-80|Rose _v._ |A|Adultery, |Mar. | |

47|120 |20- 2-80|Deborah _v._ |A|Ad., des., |Mar. | |

| | | Ashael Owen | | remar., fail.|dis.[988] |28

48|122 |19- 9-80|Chloe _v._ |A|Adult., |Mar. |Laborer |

49|126 |21- 9-80|Alice _v._ |A|Adultery, |Mar. | |

| | | Wm. Gray | | failure to |dis.[988] |10

50|128 |21- 9-80|Sarah _v._ |A|Adultery, |Mar. | |

|144 | | Valentine Wheeler| | desertion |dis.[988] |34

51|131 | 6-10-80|Mary _v._ |A|Adultery, |Mar. | |

| | | Jno. Marshall | | desertion |dis.[988] |26

52|134 |22-12-80|Rebecca _v._ |A|Adultery, |Mar. | |

53|137 |24- 1-81|Geo. _v._ |I|Incapacity |Mar. | |

| | | Phebe Shearman | | |dis.[988] |

54|140 |25- 1-81|Eliz. _v._ |A|Cruelty, ven. | | |

55|145 |26- 5-81|Mary _v._ |C|Cruelty, |Separate| |

56|149 |29- 9-81|Amzi _v._ Jerusha |A|Adultery, |Mar. | |

57|150 |29- 2-81|Belah _v._ |A|Adultery, |Mar. | |

58|153 |29-11-81|Abigail _v._ |A|Cruelty, |Mar. | |

| | | Jno. Daniels | | adult.,wasted| dis. | |31

59|156 | 3- 5-82|J. P. _v._ |A|Has bastard |Mar. | |

| | | Eliz. Barrere | | | dis. | |

60|158 | 3- 5-82|David _v._ |A|Adult., bas- Mar. | |

| | | Mary Hoit | | tard, |dis.[988] |11

61|161 | 5- 6-82|Rhoda _v._ |A|Deser.,remar.,|Mar. | |

| | | Ben. Pidgin | |fail. to prov.| dis. | |14

62|163 |23-12-82|Eliz. _v._ |A|Adultery, |Mar. | |

| | | Thomas Finnecy |C| cruelty | dis. | Mariner | 4

63|165 |25- 2-83|Ebenezer _v._ |A|Has bastard |Mar. |Sailor |

| | | Anna Tarbox | | | dis. | [captive]| 3

64|166 |15- 4-83|Squire _v._ |A|Has bastard |Mar. | |

6 |168 |14- 5-83|Ann _v._ |C|Cruelty, |Separate| |

| | | David Gardner | | failure to | b. b. | |22

66|170 | 4- 6-83|Mary _v._ |A|Adultery, |Mar. | |

| | | Stephen Holman | | disease, | dis. | | 5

67|172 |11- 6-83|Z. W. _v._ |A|Desertion, |Mar. | |

68|173 |18- 6-83|Thos. _v._ |A|Adultery, |Mar. | |

69|175 |18- 6-83|Alice _v._ |A|Adultery, |Mar. | |

70|176 |19- 6-83|Mime _v._ |A|Cruelty, |Mar. | |

| | | T. J. Carnes |C| bastard | dis. | | 6

71|178 | 3- 7-83|David _v._ |A|Adultery, |Mar. | |

72|179 | 3- 7-83|Sarah _v._ |A|Adultery, esp.|Mar. | |

| | | Stephen Temple | | with daughter| dis. | |25

73|181 |17-10-83|Sam. _v._ |A|Adultery, |Mar. | |

74|184 |17-10-83|Puella _v._ |A|Adultery, |Mar. | |

| | | Sam Kelly | | another wife |dis.[988] | 5

75|186 |27-10-83|Albert _v._ |A|Adultery, |Mar. | |

76|188 |29- 1-84|Phin. _v._ Sybil |A|Adultery |Mar. | |

| | | Chamberlain | | |dis.[988] | 7

77|189 |16- 2-84|Sarah _v._ |A|Adultery, |Mar. | |

| | | Abel Sawyer | | venereal | dis. | |21

78|191 |26- 2-84|Jeremiah _v._ |A|Adultery |Mar. | |

79|192 |26- 2-84|Andrew _v._ |A|Bastard |Mar. | |

80|194 | 4- 3-8 |Mary _v._ |A|Adultery, |Mar. | |

81|196 |16- 3-84|Hannah _v._ |A|Coresp. in 73,|Mar. | |

| | | David Dudley | | desertion |dis.[988] |24

82|198 |16- 3-84|Hannah _v._ |A|Turned wife |Mar. | |

83|199 |18- 3-84|Sarah _v._ |A|Adultery, | Denied | |

83|204 |11- 6-84|Sarah _v._ |C|Cruelty |Separate| |

a | | | Francis Rust | | | b. b. | |

84|201 |10- 5-84|Helena _v._ |C|Cruelty |Separate| |

| | | Jas. Bayard | | | b. b. | Mariner |27

85|202 | 4- 6-84|Sibbla _v._ |W|Another |Mar. | |

86|205 | 6- 7-84|Mary _v._ |A|Adult., |Mar. | |

87|206 |18-10-84|Sarah _v._ |A|Adult., cru- | | |

87|214 |21- 7-85|Sarah _v._ |A|Adultery |Mar. | |

a | | | Wm. Vernon | | with negress | dis. | |

87|222 | 1-11-85|Sarah _v._ | |Suit for | | |

88|208 |27-10-84|Appey _v._ |A|Deser., |Mar. | |

| | | Jno. Pumpelly | | remar., fail.|dis.[988] |24

89|209 |16- 2-85|Patience _v._ |A|Adultery, |Mar. | |

| | | | | out | | |

90|211 | 3- 3-85|Sarah _v._ |A|Adult., |Mar. | |

| | | Jno. Backus | | deser., fail.|dis.[988] | 6

91|212 | 3- 3-85|Jacob _v._ |A|Adultery, |Mar. | |

92|216 |26-10-85|Hannah _v._ |A|Adultery, |Mar. | |

93|218 |23-11-85|Domin. _v._ |A|Adultery, |Mar. | |

| | | Martha Record | | elopement |dis.[988] |17

94|220 |24-11-85|Jno. _v._ |A|Adultery, |Mar. | |

| | | Hannah Wales | | intoxication | dis. | | 4

9 |224 | 8- 2-86|Anna _v._ |A|Bas., remar., |Mar. | |

| | | Ebenezer Pelton | | des., fail. |dis.[988] | 5

96|226 |18- 2-86|Rebec _v._ |A|Adult., cru- |Mar. | |

--+----+--------+------------------+-+--------------+------------+----------+

[Footnote 988: Beginning with No. 37, 1776, the record in each suit

consists of (1) the charge; (2) the specifications; and (3) the

decree. The cause or causes assigned in the charge are usually

identical with those named in the decree; but the specifications

often contain more points than does the charge. Before 1776 the

record has two parts, there being but one instance (No. 22, 1770)

of a charge before that date.]

[Footnote 989: Defendant contumacious: does not appear to defend,

though repeatedly summoned.]

A glance at the tables exhibiting the more important details

connected with these actions discloses several important facts. For

the period covered by Table III the average yearly number of cases

is less than four, although the number rapidly increases after

1780. It is significant that in twenty-three out of seventy-six

instances, for both tables, when the occupation is known, the

husband is entered as a "mariner." The wife is plaintiff in

sixty-one out of one hundred and seven petitions; and in fifty-three

of the ninety-six cases listed in Table III the defendant, though

summoned, fails to appear at the trial. The courts, as in the

early period, still hesitate to grant the wife a divorce when the

husband's adultery is the sole ground assigned. Before 1776 there is

not a single clear instance[990] of such a divorce, although after

that date marriages are freely dissolved for this cause. Another

important innovation is of somewhat earlier date. Twelve out of the

one hundred and seven cases entered in the two tables--about one in

nine--are separations from bed and board, the two earliest occurring

in 1754. In five of these the petitioner asks for either partial

or absolute divorce, as the court may determine. Thus in 1767 Mary

Fairservice, whose husband was guilty of adultery and cruelty with

attempt to poison, "humbly prays ... that the Bonds of Marriage ...

may be dissolved, or otherwise if ... this cannot by Law be done,

that she may be divorced from Bed and Board." According to the

record the husband appears to have been overanxious for a complete

release; so the court granted only partial divorce and gave the wife

alimony, although she had not asked for it in her petition. On the

other hand, in each of the other four cases a full dissolution of

the marriage bond was decreed.[991]

[Footnote 990: However, in Nos. 34 (1773) and 36 (1774), Table

III, adultery of the husband is the only reason for the divorce

mentioned in the decree, but other grounds are specified in the

petition. Perhaps these may be regarded as the earliest cases of

divorce for "male adultery" during the eighteenth century.]

[Footnote 991: See Table III, Nos. 18, 32, 33, 36, 58.]

Separation from bed and board was prayed for and granted in one

instance which reveals the fact that cruelty, however aggravated,

was not regarded as sufficient ground for a full divorce. This is

the case of Lucy and Scipio Purnan, free negroes, decided in 1768.

Although Scipio was in "good business" and lived "in good fashion,"

as we are told in the petition, he turned his wife out of doors and

refused to provide for her support. Furthermore, in 1765, he "sold

her to one William Alford who with the help of another man seized

bound and gagged her at midnight and carried her off to Province

of New York and there sold her 'being a black woman.'" After again

being sold "she ran away back to Boston." Nevertheless Lucy sued for

a mere separation with alimony and the custody of her child. The

court granted her prayer, except that the child is not mentioned

in the decree.[992] The conservatism of the court regarding this

cause is further disclosed by the case of Sarah Rust in 1784. In

her petition she asks for a dissolution of wedlock on the double

ground of adultery and extreme cruelty. For lack of evidence as

to the first-named offense sufficient to warrant either full or

partial divorce, her prayer was denied, nothing being said in the

decree concerning the charge of cruelty. Sarah then brought suit for

cruelty alone, alleging that on the fifth of June, "as she was going

into the yard of a dwelling house where a pitying friend has given

her license to take shelter," Francis "waylaid & with a club beat

& mangled her in a most atrocious and cruel manner," attempting to

take her life. Accordingly the court allowed her a separation from

bed and board.[993] An earlier case constitutes a notable exception

to the policy of the court touching another ground of action. In

1771 Abigail Bradstreet got a partial divorce from her husband

Joseph, who had abandoned her because he had "married a woman with

less money than he might have expected." This case is unique; for

in no other instance is separation granted where desertion alone

without adultery or cruelty is charged.[994]

[Footnote 992: Table III, No. 21. This is the only case where

custody of a child is asked for. In all other cases where

children are mentioned they are already in the hands of the

plaintiff; and in no instance are children referred to in the

decree. Separation from bed and board is usually granted for

cruelty (see Table III, Nos. 5_a_, 24, 18, 55, 65, 83_a_, 84);

but a full divorce is never granted for this cause alone.]

[Footnote 993: Table III, Nos. 83, 83_a_. With this case may

be compared that of Sarah _v._ William Vernon (Nos. 87, 87_a_,

87_b_). On October 16, 1784, the wife asked for such relief

as the "laws of the land" provide, charging her husband with

adultery and cruelty. The court found the evidence insufficient

for either kind of divorce; but on July 21, 1785, the marriage

was dissolved on the ground of adultery alone. Singularly enough,

her petition for alimony six days later was denied.]

[Footnote 994: Table III, No. 29. _Cf._ Nos. 32 and 50, where

marriage is dissolved for desertion accompanied by adultery (or

remarriage).]

A few other cases illustrating general facts or principles may be

mentioned. In only one instance is the common-law action against

the adulterer referred to.[995] Suits for divorce or nullity on the

ground of bigamous marriages are of frequent occurrence.[996] On

October 15, 1751, Ezekiel Eldridge, indicted for feloniously taking

two wives, pleaded guilty and "pray'd the Court that he might be

allow'd the Benefit of the Clergy which was Granted him." He was

"thereupon burnt in the hand in the face of the Court" and allowed

to "go without day Paying Costs." Thereafter one of his victims

secured a divorce and his marriage with the other was declared null

and void.[997] In six cases the decree is preceded by previous

written or oral agreement by the parties.[998] The petition in

cases of long absence under the act of 1698 is illustrated by the

case of Eunice Coffin, in 1760, whose husband had been absent on a

whaling voyage for five years without word. "The Petitioner hath

the highest reason to imagine that the sloop ... was lost at Sea,

for ... a few day[s] after they sailed there was the most terrible

Storm that had been known since Nantucket hath been settled." So

the court adjudged Eunice single and granted her "license" to marry

again.[999] Finally it may be noted that in one instance a negro

slave was granted a divorce by the governor and council in the

regular way.[1000]

[Footnote 995: On April 22, 1760, for this offense "William

Arbuthnot, Esq.," secured a divorce from his wife. In his

petition he explains "that the reason of his application to this

Court, before ... Eleanor hath been legally convicted of adultery

by the course of Common Law, is, because the said Eleanor before

she could be prosecuted" absconded ... and still continues out

of the jurisdiction of the Common Law Courts of this Province":

see Table III, No. 1. In Nos. 17, 20, 41, 56, and 57 the decree

is based in part on proceedings in other courts; while in Nos. 78

and 80 such proceedings are pleaded.]

[Footnote 996: See Table III, Nos. 2, 8, 15, 24, 25, 26, 74, 85.]

[Footnote 997: _MSS. Early Court Files of Suffolk_, DCCXCIII, No.

.29730: see Table II, Nos. 5 and 6.]

[Footnote 998: In Table III, Nos. 11 and 19, after previous

written agreement, separation from bed and board with alimony

is allowed. The same is true of No. 65, except that the wife

retained her right of dower. Nos. 55, 56, and 57 are cases of

verbal agreement; but this does not constitute the sole reason

for the decree.]

[Footnote 999: Table III, No. 4; _cf._ Table III, No. 7, and

Table II, No. 8.]

[Footnote 1000: In 1745 a slave was allowed a divorce for his

wife's adultery with a white man: see Gray's note to Oliver _v._

Sale in QUINCY, _Reports_, 29; and BISHOP, _Mar., Div., and

Sep._, I, 282.]

_b_) _New Hampshire, Plymouth, and New Haven._--The Massachusetts

act of 1698 regarding desertion or long absence in precisely the

same terms is embodied in the laws of New Hampshire,[1001] whose

policy respecting divorce seems to have been identical with that

of the Bay Province. The causes of divorce, except desertion, are

not defined by law. As early as 1681, after the establishment of

the independent government, the president and council appear to

have possessed jurisdiction in such controversies. In that year a

quaint petition is presented by Sarah Pearce, "not knowing where to

find redress under Heaven but from your honorable council of this

province," praying to be "disobliged" from her union with Hubbartus

Mattoon with whom for "sundry years past she was married;" because,

owing to more than seven years' wilful desertion, aggravated by

unfaithfulness, she has been sadly disappointed in her hope of "a

comfortable living with him;" and since, unless she mistake, by the

"unerring rule of God and the laws of our nation," either or both

of the causes assigned should free her from the nuptial bond. At the

same time she humbly requests their honors in their justice to weigh

"his strange embracement" of her estate while she lived with him;

and his "solemn threatenings" since desertion to destroy her "by

poison, or knocking of the head" if she come near him. Whether the

court granted the petition does not appear.[1002]

[Footnote 1001: _Acts and Laws of ... New Hamp._, 1696-1726

(Boston, 1726), 10; _ibid._ (Portsmouth, 1761), 54; _ibid._

(Portsmouth, 1771), 11.]

[Footnote 1002: The petition is in the "Province Records and

Court Papers": _Coll. New Hamp. Hist. Soc._, VIII, 68.]

For the other New England colonies a point of special interest

is the existence of legislative divorce. The popular assemblies,

bearing the name of "general courts," are seen freely passing

decrees of divorce, and this function is usually exercised

concurrently with the law tribunals or by way of supplementing

their jurisdiction.[1003] From the record of proceedings in such

cases many an interesting glimpse is obtained of the social life of

the times. Thus the general court of Plymouth grants dissolution

of wedlock for desertion and adultery; but the conservatism of

public sentiment in this regard is shown by the fact that for the

seventy-two years during which that colony existed as a separate

jurisdiction only six instances of divorce have been discovered. The

first case occurred in 1661, when Elizabeth Burge on the scriptural

ground was released from her husband Thomas, who for his misconduct

was sentenced to be severely whipped at Plymouth and again at

Sandwich. The court took care that Elizabeth's temporal interests

should be protected. Not only did she receive one-third of her late

husband's "estate, viz., lands, goods, and chattles, as her proper

right forever;" but with his consent she got also "an old cotton

bed and bolster, a pillow, a sheet, and two blankets ... with some

other smale thinges ... to the vallue of forty shillings."[1004]

The experience of William Tubbs, of Scituate, is unique. His wife

Marcye was notoriously unfaithful to her nuptial vow and eventually

eloped with another man. So he sought a divorce; and accordingly in

1664, "after the patriarchal style," as Goodwin observes, William

Paybody of Duxbury gave him a "writing of divorcement," with

Lieutenant Nash and John Sprague as witnesses. This document the

general court treated as a nullity, fining Paybody five pounds and

each of the witnesses three pounds for their resort to self-help.

But four years later that court came to his relief in the regular

way. In July, 1668, after serving due notice on the libellee through

letters addressed to the government of "Road Iland"--where "Goodwife

Tubbs" had fled with her paramour--he was pronounced "legally cleare

from his couenant of marriage formerly made with Marcye, his late

wife," with the privilege of marrying again, "if hee see fit soe

to doe;" while she is solemnly declared to have cut herself off

from the "[p=]son" and "estate of the said William."[1005] For

similar cause and on the same conditions John Williams was released

from his wife Sarah in 1674.[1006] The next year "Edward Jenkins,

of Taunton, petitioned that his daughter Mary be divorced from

Marmaduke Atkinson, who had been out of the Colony and made no

provision for her during seven years or more. The decision was a

singular one; namely that while the court sees no cause to grant a

divorce 'yett they doe apprehend her to be noe longer bound, but doe

leave her to her libertie to marry if she please.'"[1007] This was

probably the court's homely way of saying that, the common-law term

of seven years' absence without word having expired, it regarded

the marriage as _ipso facto_ dissolved without judicial process,

though a formal decree was the more prudent course in case a second

marriage were contemplated.[1008] In the Plymouth records, as often

elsewhere, the term "divorce," following common-law usage, is

employed for a sentence of nullity in case of a void or voidable

marriage. Thus in 1680 Nicholas Wade, of Scituate, and his daughter,

Elizabeth Stevens, present a petition "wherein they complaine of a

great and sore crosse," her husband being a man of "debauged life,

expressed by his plurallitie of wifes." Elizabeth was therefore

"dismissed" from her conjugal bond; while the "debauged" Stevens

for his "abominable wickedness" was "centansed to be seueerly

whipt att the post."[1009] The last case is that of John Glover of

Barnstable whose marriage with Mary his wife was dissolved in 1686

on account of her unfaithfulness.[1010] It is significant that four

of the six petitions just enumerated are brought against the wife

on the scriptural ground and none against the husband for the same

cause. From this fact it may perhaps be inferred that in Plymouth

Plantation, as at that time in Massachusetts, male adultery was not

recognized as a legal ground of divorce.[1011]

[Footnote 1003: WOOLSEY, _Divorce_, 196, says, "At first,

divorces were mainly, if not quite exclusively, granted by an

act of a colonial legislature, in accordance, perhaps, with the

practice then, and until recently, existing in England, for the

House of Peers to take cases of dissolution of marriage into

their own hands." This statement is of course too broad; but

COWLEY is decidedly in error when he declares that the "remark

of President Woolsey requires modification with respect to Rhode

Island, and still more with respect to Connecticut. Neither

Massachusetts nor New York nor any other Colony or State knew

anything of legislative divorce until a much later day."--_Our

Divorce Courts_, 22.]

[Footnote 1004: So stated by GOODWIN, _Pilgrim Republic_, 596,

597, who gives a list of the cases, to which, after independent

examination of the _Plymouth Records_, I am unable to add any new

examples.]

[Footnote 1005: _Ply. Col. Rec._, IV, 66 (1664), 187, 192 (1668),

42, 46, 47 (earlier notices). _Cf._ GOODWIN, _op. cit._, 596.]

[Footnote 1006: _Ply. Col. Rec._, V, 127.]

[Footnote 1007: GOODWIN, _op. cit._, 597. The case is in _Ply.

Col. Rec._, V, 159.]

[Footnote 1008: On the Connecticut law as to seven years'

absence, SWIFT, _Digest of the Laws of the State of Conn._, I,

21, says: "By common law, that period of absence unheard of, is

presumptive evidence of the death of the person; yet in such

cases it would be proper that there should be a divorce before

a marriage is had, for if the party should return, the first

marriage would undoubtedly be valid, though by the [Connecticut]

statute a prosecution for the crime of bigamy could not be

sustained."]

[Footnote 1009: _Ply. Col. Rec._, VI, 44, 45.]

[Footnote 1010: _Ibid._, 190.]

[Footnote 1011: There are two other references to divorce matters

in the _Records_. In 1670, on his wife's confession of legal

cause, Samuel Hallowey petitioned for a divorce; but the court,

"being not very clear," postponed the case three months to see

if the wife would persist in her confession or the parties

become reconciled. In June the case was referred to two men for

examination; but it is not again mentioned: _ibid._, V, 32, 41,

42. _Cf._ GOODWIN, _op. cit._, 597. Again, curiously enough, we

find here the certified copy of a decree of divorce granted in

the Massachusetts jurisdiction to James Skiffe, "late inhabitant

of Sandwich, but now att the Viniyard," by a "Generall Court"

held on that island. Skiffe's wife had run away to Roanoke with

another man: _Ply. Col. Rec._, V, 33.]

Similar illustrations of the life and thought of the times are

afforded by the records of New Haven colony. In that "biblical

commonwealth" it is, of course, not surprising that the influence

of Judaism should be strongly felt. By the "capital laws" adultery

is punished with death; so, before 1648, it is ordered that if "any

marryed person proved an Adulterer, or an Adulteresse, shall by

flight, or otherwise, so withdraw or keep out of the Jurisdiction,

that the course of Justice (according to the mind and Law of

God here established) cannot proceed to due execution, upon the

complaint, proof, and prosecution, made by the party concerned,

and interessed, a separation or Divorce, shall by sentence of the

Court of Magistrates be granted," and the innocent party "have

liberty to marry again." For physical incompetency marriage may be

"declared void and a nullity;" and here we get a glimpse of the

carnal motives for wedlock handed down from the Mosaic code and

tenaciously surviving in all modern systems of law. Avoidance of

marital "duty" is the real ground of action. Therefore should the

man deceive the wife as to the fact, then such "satisfaction shall

be made to the injured woman, out of the estate of the offender,

and such fine paid to the Jurisdiction, as the Court of Magistrates

shall judge meet."[1012] In like spirit an unusually stringent rule

as to desertion is laid down. If either party shall wilfully abandon

the other, "peremptorily refusing all Matrimoniall society, and

shall obstinately persist therein, after due means have been used to

convince and reclaim, the husband or wife so deserted, may justly

seek and expect relief, according to 1 Cor. 7:15."[1013] Here no

definite term of wilful desertion is fixed. But in 1663 divorce

with remarriage is permitted in case of seven years' absence, when

the deserted consort has "noe certaine intelligence" of the other's

being alive or purposing to return.[1014] Whether this comprehends

the case of wilful desertion we are not told.

[Footnote 1012: This, of course, is practically equivalent

to "fraudulent contract" as usually permitted in the modern

statutes.]

[Footnote 1013: For the foregoing orders see _New Haven's

Settling in New England. And some Lawes for Government published

for the Use of that Colony_ (London, 1656): in _New Haven Col.

Rec._, II, 586. They are also embodied in the code of 1655:

TRUMBULL, _Blue Laws_, 241, 242. Their date is not given, but it

is probably previous to 1648 or 1649: _New Haven Col. Rec._, II,

preface, iv; TRUMBULL, _op. cit._, 40.]

[Footnote 1014: _New Haven Col. Rec._, II, 479, citing also "1

Cor., 7:15," as in the order before cited.]

_c_) _Connecticut._--The laws of Connecticut relating to divorce

gained a surprisingly early maturity. Perhaps in none of the other

colonies was so liberal, and on the whole so wisely conservative,

a policy adopted. That plantation almost deserves the patriotic

eulogy bestowed upon it by Swift, who declares in 1795 that the

"institution of a court for the decision of such controversies,

and the limitation of their power to such cases as the public

good requires to be remedied, gives the practice adopted by" the

Connecticut "laws, a decided preference to the practice of all other

nations, and renders our mode of granting divorces, as favourable as

the other modes have been unfavourable, to the virtue and happiness

of mankind."[1015] Certainly in the middle of the seventeenth

century no state, with the possible exception of Holland, possessed

a system so modern in its character. Separation from bed and board

was rejected. Only in one instance, it is said, and that by the

assembly, was such a decree ever granted.[1016] Reasonable and

fairly liberal causes of divorce a _vinculo_ were clearly specified;

husband and wife were treated with even justice; and, although

legislative divorce, always liable to abuse, was permitted, the

greater part of litigation seems always to have been intrusted to

the regular courts. In short, Connecticut, in all the more essential

respects, anticipated the present policy of civilized nations by

nearly two hundred years.

[Footnote 1015: SWIFT, _System of the Laws of the State of Conn._

(Windham, 1795), I, 192; _cf. idem_, _Digest_ (New Haven, 1823),

I, 24, 25.]

[Footnote 1016: SWIFT, _System of the Laws_, I, 193.]