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
| No. | Where Found[955] | Date | Case | Cause | Court | Decree |
| 1 | C.R., I, 283 | Dec. 3. | Second wife v. | Another | Assistants | Marriage |
| 1639 | Jas. Luxford | wife | void | |||
| 2 | W., 42 | Mar. 5, | Anne v. | Desertion, | Assistants | Mar. |
| 1643/4 | Dennis Clarke | adultery | dissolved | |||
| 3 | W., 42; | Nov. 13, | Eliz. Frier v. | Another | Assistants | Marriage |
| C.R., II, 86 | 1644 | J. Richardson | wife | blh | void | |
| 4 | C.R., IV, i, 32 | Oct. 16, | Wm. v. | Deser., | General | Mar. |
| 1650 | Eleanor Palmer | remarriage | court | dissolved | ||
| 5 | C.R., III, 277, | May 26, | Dorothy v. | Long | General | Leave to |
| IV, i, 89 | 27,1652 | Wm. Pester | absence | court | marry | |
| 6 | C.R., III, 350, | May 14, | Dorcas v. | Desertion, | General | Mar. |
| IV, i, 190 | 1654 | Jno. Hall | adultery? | court | dissolved | |
| 7 | Suff. Files, 257 | Before | Sam. and Apphia | None given | Assistants | See text |
| 1656 | Freeman | |||||
| 8 | Suff. Files, 257 | 1655-59 | Joan v. | Adultery | Assists. to | Mar. |
| C.R., IV, i, | Geo. Halsall | general ct. | dissolved; | |||
| 272, 380, 401 | reversed on ap. | |||||
| 9 | C.R., I, 85, | June 9, | Petition of Wm. | None given | Co. ct. on | Denied |
| IV, i, 259, 269 | 1656 | Clements | ref. of g. ct. | |||
| 10 | C.R., IV, i, 282 | Oct. 14, | Petition of | Deser., | Co. ct. on | None |
| 1656 | Mary Batchiler | remarriage | ref. of g. ct. | appears | ||
| 11 | C.R., IV, ii, 8 | May 22, | Rachel v. | None given | General | Mar. |
| 1661 | Jos. Langton | court | dissolved | |||
| 12 | C.R. IV, ii, 91 | Oct. 21, | Mary v. | Deficiency | General | Denied |
| 1663 | E. White | court | ||||
| 13 | Suff. Files, 651 | Sept. 9, | Petition of | Deser., | Assistants | Mar. |
| 1664 | Sarah Helwis | remarriage | dissolved | |||
| 14 | Suff. Files, 913 | Jan. 28, | Christ. and | Adult., | Assists. | None |
| 1668/9 | Eliz. Lawson | cruelty of h.; | from co. ct. | appears | ||
| bad cond. of wife | ||||||
| 15 | Plym. Rec., | Aug. 3, | James v. | Desertion, | General | Mar. |
| v, 33 | 1670 | Eliz. Skiffe | adultery | court | dissolved | |
| 16 | C.R. IV, | Oct., | Eliz. v. | Desertion, | General | Mar. |
| ii, 465 | 1670 | Henry Stevens | adultery? | court | dissolved | |
| 17 | Suff. Files, | Oct., | Kath. v. | Adultery, | Assistants | Mar. |
| 1148; N., 32 | 1672 | Ed. Nailer | cruelty | dissolved | ||
| 18 | Suff. Files, | Mch. 4, | Mary v. | Deser., | Assistants | Mar. |
| 1360; N., 30 | 1674/5 | Wm. Sanders | remarriage | dissolved | ||
| 19 | Suff. Files, | 1673-77 | Hugh and | Disease | Assistants | Sep. b.b.? |
| 1644; N., 91 | Mary Drury | and imp. of h. | ||||
| 20 | Rec. Suff. co. | Before | Philip and | See text | See text | Mar. |
| ct., 506 | 1678 | Mary Wharton | dissolved | |||
| 21 | Suff. Files, | Sept. 9, | Hugh v. | Another | Assists.; | Denied on |
| 1741; C.R., V, | 1678 | Dorcas March | husband | app. to g. ct. | app. | |
| 205; N., 127. | ||||||
| 22 | C.R., V, 188 | May 9, | Mary v. | Long | General | Leave to |
| 1678 | Henry Maddox | absence | court | marry | ||
| 23 | N., 127 | 1678 | Hope v. | Desertion, | Assistants | Mar. |
| Sam. Ambrose | adultery, failure | dissolved | ||||
| to provide | ||||||
| 24 | N., 138 | 1678 | Rebeckah v. | None given | Assistants | Mar. |
| Rich. Cooly | dissolved | |||||
| 25 | Suff. Files, | Oct. 15, | Mary v. | None given | General | Mar. |
| 1807; C.R., V, | 1679 | Aug. Lyndon | court | dissolved | ||
| 248, 249 | ||||||
| 26 | N., 144 | 1679 | Mary v. | Deser., | Assistants | Mar. |
| Job Bishop | remarriage | dissolved | ||||
| 27 | N., 147 | 1679 | Mary v. | Assistants | ||
| Jos. White | ||||||
| 28 | N., 168 | 1680 | Sus. v. | Deser., | Assistants | Mar. |
| Ed. Goodwin | fail. to prov. | dissolved | ||||
| 29 | N., 197 | 1681 | Sam. v. | Adultery, | Assistants | Mar. |
| Mary Holton | desertion | dissolved | ||||
| 30 | N., 200 | 1681 | Dorcas v. | Deser., | Assistants | Mar. |
| Christ. Smith | fail. to prov. | dissolved | ||||
| 31 | N., 208 | 1681 | Rachel v. | Assistants | Mar. | |
| Lawrence Clenton | dissolved | |||||
| 32 | N., 227 | 1682 | Eliz. v. | Bigamy | Assistants | Mar. |
| Robt. Street | dissolved | |||||
| 33 | N., 229 | 1683 | Petition of | Assistants | Denied | |
| Ann Perry | Assistants | Denied | ||||
| 34 | N., 240 | 1683 | Eliz. v. | Incest, | Assistants | Mar. |
| Nich. Maning | desertion | dissolved | ||||
| 35 | N., 256, 258 | 1684 | Sarah v. | Assistants | Mar. | |
| Thos. Cooper | dissolved | |||||
| 36 | Suff. Files, 2347 | Sep. 17, 1685 | Petition of | Adultery | Assistants | Mar. |
| Thos. Winsor | dissolved | |||||
| 37 | N., 326 | 1690 | Phillip v. | Deser., | Assistants | Mar. |
| Hannah Goss | remarriage | dissolved | ||||
| 38 | N., 242 | 1690-91 | Mary v. | Adultery, | Assistants | |
| Sam. Stebbins | desertion | |||||
| 39 | N., 361 | 1691 | Hannah and | Affinity | Assistants | Marriage |
| Josiah Owen | (bro's wife) | void | ||||
| 40 | N., 342 | 1690 | Sam. and | Affinity | Assistants | Marriage |
| Reb. Newton | (uncle's wid.) | void |
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 "ye 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 ye 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 ye 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 "ye honored Gouernor Winthrop," the "testimonys" sworn against her guilty consort. These, together with a petition for the determination of her status, she laid before "ye honord Court in Boston," Governor Winthrop being present when the case was "agitated." This tribunal adjudged her a "free woman," as "some of ye 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 ye best of his estate," promising "yt he would remove his children from him yt they might not make any disturbance between" them. Then they were "published," joined in wedlock "by ye honord Deputy Governor," and thereafter "Lived comfortably." Next we reach the heart of the business. Hugh's children "liveing in ye 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]