Although the Plymouth Colony had no statute touching divorce, the General Court of that colony granted divorces in at least six cases, as follows, viz.: in 1661, to Elizabeth Burge, of Sandwich, from Thomas Burge; in 1668, to William Tubbs, of Scituate, from Mary Tubbs; in 1670, to James Skiff from Elizabeth Skiff; in 1673, to Ensign John Williams, of Barnstable, from Sarah Williams; in 1675, to Mary Atkinson, of Taunton, from Marmaduke Atkinson; in 1680, to Elizabeth Stevens from Thomas Stevens; in 1686, to John Glover from Mary Glover. [10]
In all these cases except one, the ground on which the divorce was granted was infidelity to the marriage-vow. In the case of Mr. Atkinson, the husband was presumed to have died, having been absent, and not heard of, for seven years.
Prior to 1785 there was no statute in Massachusetts which defined the causes for which divorces should be granted, or which prescribed the forms, the rules, or the principles which the court of divorce should follow, or which specified whether the divorces granted should be from bed and board only, or from the bond of matrimony; though, as a fact, most, if not all, of the divorces granted under the first charter were from the bond of matrimony.
Thus the general principles which governed the Ecclesiastical Courts and the High Court of Parliament, in relation to divorce proceedings, became and formed a part of the common or unwritten law of Massachusetts at the commencement of her history; and they have never ceased to form a part of her common law. They have been reaffirmed again and again. Thus in 1692-3, after the abrogation of the colonial charter, and the establishment of a provincial government, under the second charter, it was enacted “that all controversies concerning marriage and divorce should be heard and determined by the governor and council,” which had taken the place of the Court of Assistants. Again, in 1784-5, when the province had become a commonwealth, when the divorce jurisdiction was transferred to the Supreme Judicial Court, when the causes were defined for which that court might grant divorces from bed and board, and divorces from the bond of matrimony, respectively, it was enacted that the court should hear and determine all causes of divorce and alimony, “according to the course of proceeding in Ecclesiastical Courts and in Courts of Equity;” and this provision has been reënacted at every revision of our statutes, in 1836, 1860, and 1882. By force of this statute the general principles which governed the Ecclesiastical Courts are a part of the law of Massachusetts to-day. One short chapter of the Public Statutes contains all her statutory law touching not only divorce but several other incidental subjects. It is a chapter of fragments. Connivance, collusion, condonation, recrimination, and other defences are not even mentioned therein.
In the case of Commonwealth v. Munson, 127 Mass., 459, Chief-Justice Gray, referring to the requisites of a valid marriage ceremony, said “the Canon Law was never adopted” in Massachusetts; and this is true in respect to the particular subject which that learned judge had under consideration. He never meant it as an unqualified statement, for as such it would not be true. In 1691 the marriage between Hannah Owen and Josiah Owen was declared null and void by the Court of Assistants, because Hannah was the widow of Josiah’s brother, and because by “the Canon Law, as allowed and adopted in England,” ever since Archbishop Cranmer annulled the marriage between Henry VIII. and Catherine of Aragon, no man could lawfully marry his brother’s widow. We do not stop to consider whether the Canon Law in this respect was right or wrong; we merely cite this case to show that, as to some things, the Canon Law was adopted here. In one marked instance the people of Massachusetts deviated from “the Canon Law as allowed and adopted in England,” to follow the Canon Law as allowed and adopted by the Popes of Rome; they enacted that, upon the marriage of the parents of any illegitimate child, such child should thereby become legitimate.
The colonists of Massachusetts had no such blind prejudice against the Canon Law, or the Church of England, or the Church of Rome, as prevented them from adopting whatever they found therein which their consciences and their reason approved. So far from cherishing an unreasoning prejudice against the Ecclesiastical Courts, the people of Massachusetts have preserved, in their Probate Courts, substantially the same system of law and substantially the same method of procedure which were followed in the Consistory Court of London, and in the Consistory Court of Rome; notwithstanding that system came to them associated with the name of one of the most unpopular and yet one of the ablest of their governors—Sir Edmund Andros.
There were, indeed, two complaints which the Puritans of Old England and of New England often made against the English Ecclesiastical Courts: first, that they punished with merciless severity violations of certain ecclesiastical regulations which involved no moral turpitude; second, that they were too lax in the punishment of social sins, Sabbath desecrations, etc., etc. But nowhere among the literary remains of the Puritans do we find any suggestion that the system of morals which was recognized by the Canon Law and administered by the Ecclesiastical Courts was “not suited to their opinions or condition.” We shall not be understood as saying that the Canon Law in its entirety was ever adopted in New England, or even in Old England; it was not. When Henry VIII. assumed the prerogatives of supreme head of the Church of England, so much of the Canon Law as relates to the jurisdiction of the Pope was abrogated in that kingdom. So when the colonists of Massachusetts established “a Church without a bishop and a State without a king,” so much of the Canon Law as relates to diocesan episcopacy also fell into what President Cleveland would call “innocuous desuetude.” But they adopted the decalogue of Moses with as much reverence as did their fathers before them. They knew as well as the poet Lowell that “The Ten Commandments will not budge,” but that, vitalized by the life of Christ, those commandments stand “the same yesterday, to-day, and forever.”
DORRIS’S HERO.
A ROMANCE OF THE OLDEN TIME.