Various - The Bay State Monthly, Volume 3, No. 1

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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]

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] 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]
This writer repeatedly spells the name wrong. His name was Drowne, not
Droune.[4] 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] and a "cunning artificer" in metal;[6] 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] 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]

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] 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'e 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.

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