The Bay State Monthly, Volume 3, No. 1

by Various

In cases arising in the early history of the colonies we should therefore expect to find the law as I have briefly sketched it as existing in England, and as there were then no courts exercising the functions of the Ecclesiastical Courts we might safely look for the exercise of these powers by the Court of Deputies, or General Court, which was at that time not simply a deliberative body, but also a court of most extensive and varied jurisdiction, in matters both civil and criminal. This was precisely the fact; the records show that in 1652 Mrs. Dorothy Pester presented to the General Court her petition for leave to marry again, giving as her reason the fact that her husband had sailed for England some ten years before, and had not been heard from since. The court decreed that liberty be granted her to marry, "when God in his providence shall afford her the opportunity." In 1667 the same court refused to grant a like petition, for the reason that they were not satisfied by the evidence that the husband had not been heard from for three years.

One year prior to this appears the first record of a divorce in the Plymouth colony, which, taken in connection with the two cases just referred to, throws a bright light on the unwritten laws then regulating this matter. Elizabeth, wife of John Williams, appeared with a petition asking for a divorce, and complaining of her husband because of his great abuse of, and "unaturall carryages towards her, in that by word and deed he had defamed her character and had refused to perform his duty towards her according to what the laws of God and man requireth." Her husband appeared and demanded trial of the issue by jury, who found the complaint to be just and true. Thereupon the deputies "proseeded to pase centance" against him as follows: "that it is not safe or convenient for her to live with him and we doe give her liberty att present to depart from him unto her friends untill the court shall otherwise order or he shall behave himself in such a way that she may be better satisfyed to returne to him againe." He must also "apparell her suitably at present and provide her with a bed and bedding and allow her ten pounds yearly to maintaine her while she shall bee thus absent from him," and to ensure the faithful performance of the decree of the court he must "put in cecurities" or one third of his estate must be secured to her comfort. As he has also defamed his wife and otherwise abused her, it is further decreed that he must stand in the market place near the post, with an inscription in large letters over his head which shall declare to all the world his unworthy behavior towards his wife. And as though the poor man was not yet sufficiently punished they go on to say that "Inasmuch as these his wicked carriages have been contrary to the lawes of God and man, and very disturbing and expensive to this government, we doe amerce him to pay a fine of twenty pounds to the use of the Colonie." One is inclined to think upon reading this rather severe "centance" that if the law of our day was somewhat similar the divorce docket would not be so long as at present.

I have cited this case at considerable length for the reason that it shows that the divorces then granted, even in aggravated cases, were from bed and board, and that the right of the wife to a certain portion of the property of her husband was recognized and enforced. The other cases show that cruel and abusive treatment and absence unexplained for the term of three years were then as now considered good grounds on which to seek separation.

The first legislation in our state bearing directly on our subject appears to have been in 1692, when it it was provided that all controversies concerning marriage and divorce should be heard and determined by the Governor and Council, thus changing simply the tribunal without affecting the existing laws. Curiously enough, although the tribunal which should determine the controversies was thus fixed, there was no provision made for enforcing its decrees, and it was thus left practically powerless for sixty-two years, or until 1754, when this defect in the law was remedied by a provision that refusal or neglect to obey the decrees of the Governor and Council might be punished like contempt of courts of law and equity by imprisonment.

In 1693 were passed the first statutes regulating the subject of marriage in the colony, the preamble to which was as follows: "Although this court doth not take in hand to determine what is the whole bredth of the divine commandment respecting marriage, yet, for preventing the abominable dishonesty and confusion which might otherwise happen," certain marriages are declared to be unlawful and the issue thereof illegitimate, and severe and degrading punishments are provided for all offenders, even although innocent of any wrong intent.

As the population of the colony increased and spread over the country at a distance from Boston, the fact that the only court having jurisdiction of matters of divorce and marriage was held only in that town was the cause of ever-increasing inconvenience, and accordingly it was enacted in 1786 that "whereas, it is a great expense to the people of this state to be obliged to attend at Boston upon all questions of divorce, when the same might be done within the counties where the parties live, and where the truth might be better discovered by having the parties in court," jurisdiction in all matters of divorce should be vested in the Supreme Judicial Court, where it has ever since remained in spite of efforts made at various times to give to other courts concurrent or even exclusive jurisdiction. As the Supreme Judicial Court is now overworked, and as it is not deemed advisable, for various reasons, to increase its numbers, it is more than probable, in view of the increase in the number of libels annually filed, that some modification of our laws will soon be made which shall give the entire jurisdiction of this matter either to the Superior Court or to the Judges of Probate in the several counties. Governor Robinson called the attention of the Legislature to the importance of some change in this direction in his last message, and urged speedy action.

The act of 1786, above alluded to, fixed the causes of divorce at two—adultery or impotency of either of the parties, but allowed a divorce from bed and board for extreme cruelty. To this was added in 1810 the further cause of desertion, or refusal to furnish proper support to the wife. To the two causes above named the Legislature of 1836 added a third, namely, the imprisonment of either party for the term of seven years or more at hard labor.

In 1698 it had been provided that in case of three years' absence at sea, when the voyage set out upon was not usually of more than three months' duration, the man or woman whose relation was in this way parted from him might be considered single and unmarried. In 1838 wilful desertion for five years was added to the then existing causes for absolute divorce, in favor of the innocent party, and in 1850 yet another cause was added by providing that if either party separated from the other and for three years remained united with any religious sect or society believing or professing to believe that the relation of husband and wife is void and unlawful, a full divorce might be granted to the other.

The law remained thus for ten years, or until the adoption of the General Statutes in 1860, when desertion for five years was made ground for granting a divorce to the deserting party also, provided it could be shown that such desertion was due to the cruelty of the other, or in case of the wife, to the failure of the husband to properly provide for her. Divorce from bed and board was also authorized for extreme cruelty, complete desertion, gross and confirmed habits of intoxication, if contracted after the marriage, and neglect of the husband to provide for his wife. Such limited divorces might be made absolute after five years' separation, on petition of the party to whom the divorce was granted, and after ten years on that of the guilty party. There was no change in these laws until 1870, when limited divorce, a relic of churchly superstition, was done away with entirely in this State, the grounds upon which it had been granted being at the same time made cause for absolute divorce, with the condition, however, that all such divorces should be in the first instance nisi, that is, conditional, to be made absolute after three years in the discretion of the court, and after five years as of right. Prior to this time, in 1867, it had been enacted that all decrees of divorce should be first entered nisi, to be made absolute in six months in the discretion of the court, and this act of 1870 therefore left nine causes for absolute divorce; but in all cases for cruelty, desertion, intoxication, or neglect or refusal to support, the decree must remain conditional for at least three years. Since that date there have been many changes in the statutes, but all in the direction of regulating the entry of the decree, without affecting the causes therefor, except that in 1873, habits of intoxication, even if contracted before marriage, were made good grounds for a decree.

The law of 1841, which remained in force until 1853, forbad the marriage of the party for whose fault divorce was granted during the lifetime of the innocent partner; but in the latter year the court was authorized to allow the guilty party, except in cases of adultery, to remarry; and in 1864 it was provided that even in such cases the guilty one might marry after three years, unless actually tried and convicted of the crime. In 1873 even this restriction of three years was removed, and the law remained so until 1881, when it was enacted that the guilty party in all cases might marry after two years without the formality of applying to the court for leave so to do.