The Bay State Monthly, Volume 3, No. 1

By Chester F. Sanger

There evidently exists just at the present time a great and increasing interest in the old and much debated subjects of divorce, and divorce legislation; an interest which is intensified as the population of our younger states with their widely varying laws governing this matter increases and the dangers and opportunities for fraud grow more apparent. Naturally enough, therefore, public attention is invited to these different laws of the several states of our Union, some allowing divorce for one cause, others refusing it upon the same ground, and one state, at least, refusing to grant a divorce for any cause whatever. The remedy for this seems to many to be a national divorce law, establishing in all the states a uniform mode of procedure and a uniform basis upon which all petitions for divorce must be grounded; it must also fix the status of the parties in every state and prescribe the several property rights of each after the entry of the judicial decree which separates them from a union, not of God, as some would try to teach, but often from fetters, the weight and horror of which are known to the parties alone, or to those, who, unlike our theoretical reformers, have had some practical experience in the actual operation of our divorce courts.

While it is a fact, overlooked by the enthusiasts on this subject, that no such national law can be passed without an amendment to the constitution, since the passage of such an act would be an invasion of the rights reserved to the several states; yet in view of this widespread interest in the question, the development and present condition of the laws regulating divorce in our own Commonwealth becomes an interesting matter of inquiry. While such a discussion has little or nothing to do directly with the moral aspects of the subject, it is well to note in passing that the doctrine of the indissolubility of the marriage relation was not made a tenet of the church until as late as 1653. The Mosaic Law made the husband the sole judge of the cause for which the woman might lawfully be "put away," and many Bibical scholars of great attainments have maintained that when rightly interpreted the words of Christ do not restrict divorce to the single cause of actual adultery, while elsewhere in the New Testament divorce for desertion is expressly sanctioned.

The Roman Catholic Church, while it pronounced the marriage tie indissoluble, at the same time reserved to the Pope the right to grant absolute divorce, a right which was often exercised for reward, while her Ecclesiastical Courts in the meantime declared many marriages null and void upon so-called impediments established solely upon the confession of one or the other of the parties seeking divorce. This course is hard to explain satisfactorily if we admit a sincere belief in the justice of her own dogma. It was from this practice of the Church that came the custom of granting partial divorce, or, as it was termed, divorce from bed and board—a divorce which was one only in name, and made a bad matter worse, surrounding both parties with temptations, and being, as it has been said, an insult to any man of ordinary feelings and understanding. It was, to be sure, an attempt to comply with the established doctrine of the Church, but it was a compromise with common-sense. To this same source may be traced the curious procedure in England, known as a suit for the restoration of conjugal rights, wherein a husband or wife, who, being unable to obtain a a genuine divorce, had separated from his or her partner for cause, might be compelled by the power of the law to return to the "bliss too lightly-esteemed."

There is one state in our Union in which, as one of her Judges puts it, "to her unfading honor," not a single divorce has been granted for any cause since the Revolution. But the fact remains, not so much to her unfading honor, perhaps, that she has found it necessary to regulate by statute the proportion of his property which a married man may bestow upon his concubine, while at the same time adultery is not an indictable offence. Another of her Judges has said from the bench, "We often see men of excellent characters unfortunate in their marriages, and virtuous women abandoned or driven away houseless by their husbands, who would be doomed to celibacy and solitude if they did not form connections which the law does not allow, and who make excellent husbands and wives still."

This judicial utterance makes an excellent basis for the statement that it is better to adapt the law to facts as we find them, than to proceed on the principle that as there is no redress called for save where there is a wrong, if we do not allow the redress, there will, of course, be no wrong. There is no escape from the conclusion that divorce or irregular connections will prevail in every community; why not agree with Milton that honest liberty is the greatest foe to dishonest license?

When the founders of the new Commonwealth came to these shores they brought with them of necessity the laws of the mother country, and so we shall find that the divorce laws of England, as they existed at that time, were the early laws of the colonies of Plymouth and Massachusetts Bay. The Ecclesiastical courts of England were invested with full jurisdiction of all matters of divorce, but from about the year 1601 they had steadily refused to grant an absolute divorce for any cause whatever, although they as constantly granted divorce from bed and board, allusion to which has already been made; that is, they decreed a judicial separation of man and wife, which freed the parties from the society of each other, but at the same time left upon them all the obligations of the marriage vow as to third parties. Finally, when divorce was sought for cause of adultery, resort was had to parliament, and in 1669 an absolute divorce for that cause was granted by that body for the first time. This mode of procedure was, of course, a most expensive one, and during the seventeenth century but three decrees absolute were granted, the parties in each belonging to the peerage and the cause being the same.

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.

From this brief review of the history of our law there is but one conclusion to be drawn, that slowly but surely the doors to divorce have been opened until it has become a comparatively easy matter to obtain that relief which for so many years was absolutely refused. A few statistics will illustrate this: In the year 1863 there were in the state 10,873 marriages and 207 divorces; in 1882 there were 17,684 marriages and 515 divorces, or an increase in the former of 62.6 per cent., and of the latter of 147.6 per cent., while the population of the state increased in the same time 53.4 per cent. Since the legislation of 1870, which, as we have seen above, made divorce obtainable on nine grounds, the increase in the number of decrees granted has been 36 per cent., while in the same period marriages have increased but 20 per cent.

During this twenty years 79 per cent. of all divorces granted were for adultery and desertion, and of those granted for the first-mentioned cause only a trifle over one-half were for the fault of the man; while, contrary to a widely-prevalent belief, the record shows that of the decrees entered for that cause the proportion is greater in the country districts than in our cities. In the same period the highest ratio of divorce to marriage has been one to twenty-three, and the lowest one to thirty-three, the average for the whole time being one to thirty-one; but in Suffolk County, comprising the cities of Boston and Chelsea and the towns of Winthrop and Revere, the average has been only one to forty-one and nine-tenths. These statistics are indeed startling, and may be easily used as a foundation for an argument that our laws governing the matter are far too lenient, since the number of divorces is so apparently excessive.

But on the other hand is it not as fair an inference from all the facts, that beyond and deeper than any provisions of the law there is something wrong in society itself; that we must look for the real root of the trouble in the influences which are operating upon our social life as a people? Our Judges who administer the law are learned, of great experience in the matter of weighing evidence, careful and conscientious. The laws are carefully framed to prevent collusion between the parties, and especially to render it difficult to obtain a divorce for the groundless desertion of the party seeking the separation; in fact they are far in advance of the laws of many of our sister states, and it has been truly said that the divorce laws of this Commonwealth have kept pace with the improved understanding of the condition of the people, and have been wisely framed to meet the many causes which exist in modern life to break up the domestic relations.

There is not one of our statutory causes for divorce which could be stricken out without a certainty of inflicting legal cruelty in the future. Of all our divorces nearly seventy per cent, are upon petition of the wife; and it can be safely said that nearly all will agree that to compel a woman to submit to the cruelty and brutalities of a drunken or profligate husband, is not only inflicting upon her legal cruelty, but has an influence which extends beyond the individual and is powerful for evil upon those who are to come after us.

Strangely enough as our educational advantages have increased, as more avenues of self support have been opened to women, so has the ratio of divorce to marriage also grown larger, thus apparently furnishing conclusive proof that it is not legislative reform that is now needed. It is not necessary to argue that no legislation can operate in any way to strengthen those family ties which have their foundation in the social and domestic affections. On the other hand, any thing in the direction of education of the young tending to strengthen love of home and domestic life, and to do away with the prevalent tendency to what has been termed individualism, will be a step in the right path and will aid in lessening the evils which so many wrongly ascribe to faulty legislation. If any further proof of this fact is needed it is found in the knowledge that by far the larger part of the seekers for relief come from our native population, while none but those who have some practical experience in the realities of the divorce court room can know how intolerable are the burdens from which this relief is sought.

SHEM DROWNE AND HIS HANDIWORK

By Elbridge H. Goss

The weird imaginings and romantic theories of our great story-teller, Hawthorne, must not be taken as veritable and indisputable history. Some of the Boston newspapers have recently run riot in this respect. Hawthorne, in his "Drowne's Wooden Image," in "Mosses from an Old Manse," says the figure of "Admiral Vernon," which has stood on the corner of State and Broad streets, Boston, for over a century, was the handiwork of one Shem Browne, "a cunning carver of wood." Upon this statement of the romancer, for there is no authentic history to warrant it, one paper, in an article entitled "A Funny Old Man," says: "Deacon Shem Drowne, the Carver. Concerning the origin of the carved figure of Admiral Vernon there can be no doubt. History, ancient records, and fiction all record the presence in Boston of one Deacon Shem Drowne, whose business it was to supply the tradesmen and tavern-keepers of the day with similar carved images to indicate their calling, or by which to identify their places of business."[1 - Boston Globe, October 18, 1884.]

Another, discoursing of this same image, as "Our Oldest Inhabitant," after attributing it to the same man's workmanship, states: "Deacon Shem Drowne, whose name suggests pious and patriarchal, if not nautical associations, carved the grasshopper which still holds its place over Faneuil Hall, and also the gilded Indian,[2 - Neither of these were carved; they were both of metal.] who, with his bow bent and arrow on the string, so long kept watch and ward over the Province House, the stately residence of the royal Governors of Massachusetts."[3 - Boston Evening Record, January 10, 1885.] This writer repeatedly spells the name wrong. His name was Drowne, not Droune.[4 - Fac-similes of his signature are given in "Memorial History of Boston," vol. II, p. 110, written in 1733, and in John Johnston's "History of Bristol, Bremen and the Pemaquid Plantation," p. 466, written in 1762.] In "Drowne's Wooden Image," Hawthorne makes his Shem Drowne a wood-carver, plain and simple: "He became noted for carving ornamental pump heads, and wooden urns for gate posts, and decorations, more grotesque than fanciful, for mantle pieces." "He followed his business industriously for many years, acquired a competence, and in the latter part of his life attained to a dignified station in the church, being remembered in records and traditions as Deacon Drowne, the carver," and he connects him with the real Shem Drowne of history, only by speaking of him this once as "Deacon Drowne," and saying: "One of his productions, an Indian Chief, gilded all over, stood during the better part of a century on the cupola of the Province House, bedazzling the eyes of those who looked upward, like an angel of the sun;" plainly indicating that he thought the Indian was carved from wood, instead of being made, as it was, of hammered copper.

The real Shem Drowne was not a wood-carver; no authority for such a statement can be found. His trade is given as that of a "tin plate worker,"[5 - Johnston's "Bristol and Bremen."] and a "cunning artificer" in metal;[6 - Samuel Adams Drake's "Old Landmarks of Boston," p. 135.] nowhere as a wood-carver. He was born in Kittery, Maine, in 1683. His father was Leonard Drowne, who came from the west of England to Kittery, where he carried on the ship building business until 1692, when, on account of the French and Indian wars, he removed his family to Boston, where he died, a few years after, and his grave is in the old Copp's Hill Burying Ground.[7 - Mss. letter of Henry T. Drowne, Esq., of New York.] At Boston Shem Browne established himself in his trade. He was elected a deacon of the First Baptist Church, in 1721. He was "often employed in Town affairs, especially in the management of Fortifications."[8 - Samuel G. Drake's "History of Boston."]

He married Catherine Clark, one of the heirs of Nicholas Bavison, of Charlestown, who was a purchaser in the "Pemaquid Patent," or grant of the Plymouth Company, of some twelve thousand acres, to Messrs. Aldsworth and Elbridge of Bristol, England, made in 1631. Becoming interested in the claim of his wife, as one of the heirs, in 1735, he was appointed agent and attorney of the "Pemaquid Proprietors," in which capacity he acted for many years. It was sometimes called the "Drowne Claim." In 1747 he had the whole tract of land surveyed, and was instrumental in causing forty or more families to settle in that region. That he became blind, or nearly so, as early as 1762, is attested by a deed of land at Broad Cove (Bristol, Maine), made in that year to Thomas Johnston; a note in the margin of which states that it was "distinctly read to him on account of his sight;"[9 - History of "Bristol and Bremen."] but the signature is written in a large, plain hand. He died January 13, 1774, aged ninety-one years. He had a daughter, Sarah, who, in 1757, was married to Rev. Jeremiah Condy, who, from 1739 to 1764, was pastor of the First Baptist Church, of which church Mr. Drowne was a deacon. As a metal worker he made the grasshopper, Indian, and other vanes; but that he ever carved a pump head, urn, gate-post, "Admiral Vernon," or any other wooden image, there is not a scintilla of evidence; nothing but the figment of a romancer's brain.

The following letter to his nephew, Honorable Solomon Drowne of Providence, Rhode Island, is here printed by the kindness of Henry T. Drowne, Esq., of New York, who has many of the old papers of the Drowne families. It was written soon after his nephew's marriage, and is an interesting document; full of a sympathetic and kindly spirit; showing that the customs of his church, the Baptist, of that day, were very similar to those of the Evangelical churches of to-day; and gives an instance of "Catholic Christian Spirit" worthy of note. The use of the colon instead of the period is also noticeable:

BOSTON [Massachusetts],

August y

18, 1732.

Loving Kinsman:

Yours I received and have considered the Contents, and pray that your spouse may be directed and assisted by the grace and holy spirit of God to live in all good conscience before Him and this being the indispensable Duty of everyone when come to the use of Reason, with all seriousness to search the Scriptures, from thence to learn our Duty; and, then with Humility to devote ourselves to God, which is our reasonable Service; and, this being the awfulest solemnity that poor mortal man ever transacts in, whilst in this world: being to enter into Covenant with the Most High God. In the Concernment of a precious soul for a vast Eternity, ought to be entered upon with earnest prayer to God for his grace, that it may be sufficient for us, and that His strength might be made perfect in weakness: As for the order in which our Church admits Members into Communion: the Person who desires to joyn to the Church stands propounded a fortnight, in which time inquiry is made concerning their Life and Conversation: then they appear before the Church, make Confession, with their mouth, of their Repentance toward God, and their faith toward our Lord Jesus Christ: and, if nothing appears by information contrary to their Confession, then they are approved of by a vote of the Church, with all readiness; and so partake of the Holy ordinances—Baptism and the Lord's Supper.

Our breaking-bread day is always on the first Sabbath in every month, and, always on the Friday before it, we have a Church Meeting, which is carried on by prayer, in order to prepare for our approach to the Lord's table: at which Meetings those are sometimes heard and sometimes on the Sabbath, as circumstances best serve—so that any Person at a Distance may send to our minister to propound them to the Church timely, and order their coming, so as to partake of both ordinances on the same day: The Reverend Mr. Cotton of Newton, on occasion of a man of his Parish desiring to join in Communion with our Church, gave him a Letter of Recommendation, not as a member with him, but as of one in Judgment of Charity qualified by the grace of God to be received amongst us: which the Church received as a mark of his Catholic Christian Spirit.

That you and your spouse may be directed to do what may be most for the glory of God: and for your own Peace and Comfort, both for time and Eternity: that you may both walk in all the commands and ordinances of the Lord blameless is the Prayer and Desire of your loving uncle.

SHEM DROWNE.

Two of the three best known weather vanes made by Drowne, are still on duty; and one, the Indian chief, which for so many years decked the Province House, is now the property of the Massachusetts Historical Society, in one of the rooms of which it is to be seen, still swinging on its original pivot. From the sole of his foot to the top of his plume, it is four feet, six inches; and from his elbow to tip of arrow, four feet; weight forty-eight pounds.

The old grasshopper on Fanueil Hall[10 - Drake in "Old Landmarks," says: "the grasshopper was long thought to be the crest of the Faneuils."] was made in 1742, and has veered with the winds and been beaten by the storms of one hundred and forty odd years. It was last repaired in 1852, when there was found within it a much-defaced paper, only a part of which could be read:

SHEM DROWNE MADE ITT

May 25, 1742

To my Brethren and Fellow Grasshoppers

Fell in y

year 1755 Nov 15th day from y

Market by a great Earthquake … sing … sett a … by my old Master above.

Again Like to have Met with my Utter Ruin by Fire, but hopping Timely from my Publick Situation came of with Broken bones, and much Bruised, Cured and again fixed....

Old Master's Son Thomas Drowne June 28th, 1763. And Although I now promise to Play … Discharge my Office, yet I shall vary as ye wind.[11 - Boston Daily Advertiser, December 3, 1852.]

The other one still in use is the old "Cockerel" of Hanover Street Church fame. This was made for the New Brick Church in 1721, and is the oldest of the three. It held its position on this church and its successors, one of which was long known as the "Cockerel Church," for one hundred and forty-eight years, when it was raised on the Shepard Memorial Church of Cambridge, where it now is. "It measures five feet four inches from bill to tip of tail, and stands five feet five inches from the foot of the socket to the top of comb, and weighs one hundred and seventy-two pounds."[12 - Historical and Genealogical Register, vol. XXVII, p. 422.]

Possibly some other specimens of the handiwork of this good Deacon Shem Drowne are still in existence. Who knows?

THE WEDDING IN YE DAYS LANG SYNE