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]

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]

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.

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]

TABLE I

Cases of Divorce and Annulment of Marriage in Massachusetts, 1639-92

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]

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]

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]

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.

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]

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]

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]

TABLE II

Divorce Cases Before the Governor and Council of Massachusetts, 1739-60

(Found in MSS. Files of Suffolk County, Vol. DCCXCIII)

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)