A History of Matrimonial Institutions, Vol. 2 of 3

by George Elliott Howard

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)

No.	Page	Date of Decree	Case	Cause		Decree	Husband's Occupation	Years Married
				Charge[988]	Specifications
1	1	22- 4-60	Wm. v. Eleanor Arbuthnot		Adultery, elopement	Mar. dissolved	Soldier [officer]	3
2	2	9- 6-60	Henrietta v. Hugh Cane		Bigamy, desertion, cruelty	Deferred
3	4	10- 6-60	Jane v. Joshua Eustis		Adultery, desertion	Mar. dissolved		¾
4	5	5- 6-60	Petition of Eunice Coffin		Five years'absence	Leave to marry	Mariner
5	6	8-10-60	Mary v. Rich. Hunt		Cruelty	Accommodated	Truckman	12
5a	7	14- 2-61	Mary v. Rich. Hunt		Cruelty, failure to provide	Separate b. b.[988]
6	11	11- 3-61	Stephen v. Tabitha Lufkin		Adultery, wasting estate	Mar. dissolved[988]	Mariner	6
7	15	21- 4-62	Petition of Ruth Woodberry		Four years' absence	Leave to marry	Mariner
8	16	29- 7-62	Wm. v. Hannah Davidson		Bigamy	Marriage void	Gardener	4
9	18	14- 2-63	Ed. v. Rebecca Holman		Adultery	Mar. dissolved[988]	Husbandman	8
10	21	13- 7-63	James v. Mary Torrey		Adultery, elopement	Mar. dissolved[988]		8
11	24	15- 2-64	Eliz. v. Mark Keith		Cruelty, refuses bed	Separate b. b.		2
12	27	7-11-64	Elias v. Bethia Parmenter		Adultery, bastard	Mar. dissolved[988]	Soldier [captive]	9
13	29	10- 4-65	Ben. v. Lydia Ingersoll		Adultery	Mar. dissolved[988]	Mariner
14	32	20- 6-65	Margaret v. Fred Knodle		Cruelty	Dismissed	Yeoman
15	33	14- 8-65	Rachel v. John Wormley		Bigamy	Marriage void[988]		8
16	35	24- 9-66	Russell v. Mary Knight		Adultery	Mar. dissolved	Cooper	14
17	37	6- 5-67	Thos. v. Abigail Hammet		Adultery	Mar. dissolved	Yeoman	17
18	40	16-12-67	Mary v. Jno. Fairservice		Cruelty, adult., att. to poison	Separate b. b.	Trader	13
19	44	5- 2-68	Ann v. Cornelius Vansise		Desertion, failure to provide	Separate b. b.
20	45	15- 6-68	Jas. v. Mary Dougherty		Adultery	Mar. dissolved[988]	Trader	11
21	48	14- 9-68	Lucy v. Scipio Purnan		Cruel., sells wife, fail. to prov.	Separate b. b.	Truckman	7
22	51	17- 4-70	Jno. v. Anna Bragg	Adultery	Adultery	Mar. dissolved[988]	Cordwainer	17
23	54	16-7-70	Wm. v. Susanna Chambers		Adultery	Mar. dissolved[988]	Mariner	15
24	57	18-10-70	Sam. v. Sarah Lefebure		Bigamy	Marriage void[988]	Mariner	1
25	59	9- 5-71	Mary v. Henry Bates		Bigamy, desertion	Marriage void[988]		6
26	62	19- 9-71	Mehetable v. Josh. Nicholson		Bigamy	Marriage void[988]	Mariner[?]	2
27	64	23-10-71	Jno. v. Jane Crosley		Adultery	Mar. dissolved[988]	Ropemaker	6
28	66	28-10-71	Cadwell v. Charlotte Ford		Adultery, drunkenness	Mar. dissolved	Husbandman	3
29	68	17-10-71	Abagail v. Jos. Bradstreet		Desertion, sequest. fruits of wife's estate	Separate b. b.	Physician	1½
30	70	10-12-72	Jas. v. Hannah Richardson		Adul., threats to life and pr'ty	Mar. dissolved	Esquire	20
31	73	3- 2-73	Jos. v. Eunice Price		Adultery, elopement, bastard	Mar. dissolved[988]	Yeoman	7
32	75	4- 3-78	Sarah v. Enoch Kingsley		Desertion, remarriage	Mar. dissolved[988]		13
33	78	2- 3-73	Sarah v. Wm. Gould		Cruelty, adult., ven. disease	Mar. dissolved[988]	Merchant	13
34	80	4-11-73	Martha v. Adam Air		Cruelty, adult., fail. to prov.	Mar. dissolved	Turner	4
35	83	15- 6-74	Martha v. Wm. Jones		Desertion, remarriage	Mar. dissolved[988]	Tailor	12
36	85	15- 6-74	Abigail v. John Pell		Adult., ven. dis., fail. to prov.	Mar. dissolved	Gentleman	10
37	87	21-11-76	Asaph v. Naomi Leonard	Adultery	Adultery, elopement	Mar. dissolved[988]		28
38	90	?-12-76	J. C. v. Mary Lewis	Adultery	Adultery	Mar. dissolved[988]
39	92	27- 5-77	Isaiah v. Mary Thomas	Adultery	Adultery	Mar. dissolved	Printer	7
40	96	5- 9-77	Rosanna v. Wm. Scott	Adultery	Adultery	Mar. dissolved[988]		11
41	101	30- 1-78	Joshua v. Sarah Jay	Adultery	Adultery	Mar. dissolved[988]	Innholder	19
42	104	14- 7-78	Wm. v. Sarah Sturgis	Adultery	Adultery	Mar. dissolved	Mariner
43	107	15-10-78	Jas. v. Hannah Thompson	Adultery	Adultery, squandered estate	Mar. dissolved[988]	Mariner	2
44	110	25- 2-79	Eliz. v. Samuel Bemis	Adultery	Adult., cruelty, fail. to prov.	Mar. dissolved[988]	Yeoman	3
45	113	30-12-79	Ed. v. Isabella Dawes	Adultery	Adultery, elopement	Mar. dissolved[988]	Peruke maker	9
46	117	28- 2-80	Rose v. Timothy Corles	Adultery	Adultery, failure to provide	Mar. dissolved[988]	Yeoman	9
47	120	20- 2-80	Deborah v. Ashael Owen	Adultery	Ad., des., remar., fail. to prov.	Mar. dissolved[988]		28
48	122	19- 9-80	Chloe v. Luke Welch	Adultery	Adult., deser., fail. to prov.	Mar. dissolved[988]	Laborer [soldier]	10
49	126	21- 9-80	Alice v. Wm. Gray	Adultery	Adultery, failure to provide	Mar. dissolved[988]		10
50	128 144	21- 9-80	Sarah v. Valentine Wheeler	Adultery	Adultery, desertion	Mar. dissolved[988]		34
51	131	6-10-80	Mary v. Jno. Marshall	Adultery	Adultery, desertion	Mar. dissolved[988]		26
52	134	22-12-80	Rebecca v. Jacob Dunnell	Adultery	Adultery, desertion, bastard	Mar. dissolved[988]	Mariner	7
53	137	24- 1-81	Geo. v. Phebe Shearman	Incapacity	Incapacity	Mar. dissolved[988]
54	140	25- 1-81	Eliz. v. Samuel Bemis	Adultery	Cruelty, ven. dis., adult.		Husbandman	1½
55	145	26- 5-81	Mary v. Geo. Lobb	Cruelty	Cruelty, failure to provide	Separate b. b.	Mariner	2
56	149	29- 9-81	Amzi v. Jerusha Doolittle	Adultery	Adultery, elopement	Mar. dissolved
57	150	29- 2-81	Belah v. Amos Marsh	Adultery	Adultery, desertion,	Mar. dissolved	Husbandman
58	153	29-11-81	Abigail v. Jno. Daniels	Adultery	Cruelty, adult., wasted estate	Mar. dissolved		31
59	156	3- 5-82	J. P. v. Eliz. Barrere	Adultery	Has bastard	Mar. dissolved
60	158	3- 5-82	David v. Mary Hoit	Adultery	Adult., bastard, elopement	Mar. dissolved[988]		11
61	161	5- 6-82	Rhoda v. Ben. Pidgin	Adultery	Deser., remar., fail. to prov.	Mar. dissolved		14
62	163	23-12-82	Eliz. v. Thomas Finnecy	Adult., cruelty	Adultery, cruelty	Mar. dissolved	Mariner	4
63	165	25- 2-83	Ebenezer v. Anna Tarbox	Adultery	Has bastard	Mar. dissolved	Sailor [captive]	3
64	166	15- 4-83	Squire v. Dorcas Baker	Adultery	Has bastard	Mar. dissolved[988]	Soldier	12
65	168	14- 5-83	Ann v. David Gardner	Cruelty	Cruelty, failure to provide	Separate b. b.		22
66	170	4- 6-83	Mary v. Stephen Holman	Adultery	Adultery, disease, desertion, failure to provide	Mar. dissolved		5
67	172	11- 6-83	Z. W. v. Juda Thayer	Adultery	Desertion, bastard	Mar. dissolved[988]	Yeoman	11
68	173	18- 6-83	Thos. v. Rosanna Crippen	Adultery	Adultery, elopement	Mar. dissolved
69	175	18- 6-83	Alice v. Lemuel Hill	Adultery	Adultery, deser., remarriage	Mar. dissolved
70	176	19- 6-83	Mime v. T. J. Carnes	Adult., cruelty	Cruelty, bastard	Mar. dissolved		6
71	178	3- 7-83	David v. Mary Harwood	Adultery	Adultery, elopement	Mar. dissolved	Husbandman
72	179	3- 7-83	Sarah v. Stephen Temple	Adultery	Adultery, esp. with daughter	Mar. dissolved		25
73	181	17-10-83	Sam. v. Margaret Crafts	Adultery	Adultery, elopement, bastard	Mar. dissolved[988]	Laborer	15
74	184	17-10-83	Puella v. Sam Kelly	Adultery	Adultery, another wife	Mar. dissolved[988]		5
75	186	27-10-83	Albert v. Ann Fitch	Adultery	Adultery, elopement	Mar. dissolved[988]	Mariner	6
76	188	29- 1-84	Phin. v. Sybil Chamberlain	Adultery	Adultery	Mar. dissolved[988]		7
77	189	16- 2-84	Sarah v. Abel Sawyer	Adultery	Adultery, venereal disease	Mar. dissolved		21
78	191	26- 2-84	Jeremiah v. Mary Higerty	Adultery	Adultery	Mar. dissolved[988]	Mariner	14
79	192	26- 2-84	Andrew v. Eliz. Gage	Adultery	Bastard children	Mar. dissolved	Mariner	18
80	194	4- 3-8	Mary v. Wm. Pedley	Adult., cruelty	Adultery, cruelty	Mar. dissolved[988]	Mariner	5
81	196	16- 3-84	Hannah v. David Dudley	Adultery	Coresp. in 73, desertion	Mar. dissolved[988]		24
82	198	16- 3-84	Hannah v. Nehemiah Adams	Adultery	Turned wife out; took another woman	Mar. dissolved[988]	Husbandman	11
83	199	18- 3-84	Sarah v. Francis Rust	Adult., cruelty	Adultery, cruelty	Denied	Trader	5
83a	204	11- 6-84	Sarah v. Francis Rust	Cruelty	Cruelty	Separate b. b.
84	201	10- 5-84	Helena v. Jas. Bayard	Cruelty	Cruelty	Separate b. b.	Mariner	27
85	202	4- 6-84	Sibbla v. G. W. Babcock	Another wife	Another wife	Mar. dissolved[988]	Mariner	4
86	205	6- 7-84	Mary v. Thos. Smith	Adultery	Adult., deser., fail. to prov.	Mar. dissolved[988]	Husbandman	12
87	206	18-10-84	Sarah v. Wm. Vernon	Adult., cruelty	Adult., cruelty, fail. to prov.	Denied	Merchant	6
87a	214	21- 7-85	Sarah v. Wm. Vernon	Adultery	Adultery with negress	Mar. dissolved
87b	222	1-11-85	Sarah v. Wm. Vernon		Suit for alimony	Denied
88	208	27-10-84	Appey v. Jno. Pumpelly	Adultery	Deser., remar., fail. to prov.	Mar. dissolved[988]		24
89	209	16- 2-85	Patience v. Wm. Cornell	Adultery	Adultery, turned wife out	Mar. dissolved	Cordwainer	21
90	211	3- 3-85	Sarah v. Jno. Backus	Adultery	Adult., deser., fail. to prov.	Mar. dissolved[988]		6
91	212	3- 3-85	Jacob v. Hannah Millard	Adultery	Adultery, elopement	Mar. dissolved[988]	Yeoman	17
92	216	26-10-85	Hannah v. Moses Elwell	Adultery	Adultery, desertion	Mar. dissolved[988]	Yeoman	12
93	218	23-11-85	Domin. v. Martha Record	Adultery	Adultery, elopement	Mar. dissolved[988]		17
94	220	24-11-85	Jno. v. Hannah Wales	Adultery	Adultery, intoxication	Mar. dissolved		4
95	224	8- 2-86	Anna v. Ebenezer Pelton	Adultery	Bas., remar., des., fail. to pro.	Mar. dissolved[988]		5
96	226	18- 2-86	Rebec v. Ebenezer Simpson	Adult., cruelty	Adult., cruelty, fail. to prov.	Mar. dissolved[989]	Blacksmith	20

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]

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]

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 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]

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]