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Browsing: Legal Papers of John Adams, Volume 1


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Docno: ADMS-05-01-02-0007-0001-0001

Editorial Note

At twenty-four Adams could ask, “But Quere, if Dissonance of Dispositions is a sufficient Reason [for allowing a divorce]? This may be known, if sufficient Caution is taken beforehand.”1 Some twelve years later as counsel for Abigail Broadstreet in a divorce case involving domestic discord of the type dear to the readers of women's magazines today, he may well have had cause to ponder this proposition again.
Abigail Fuller had married Dr. Joseph Broadstreet of Topsfield in February 1770. Although Abigail had recently bought a small farm in nearby Middleton, the town in which her family lived, the couple, apparently for financial reasons, chose to move in with her brother Jacob. Within a few months Broadstreet became extremely restive, proclaiming to all who cared to hear that he had made a poor choice of wife in marrying a woman with no fortune but some unprofitable real estate. He said that “he was a damned fool for having of her and that he should rather have married a Negro if She had money.”2 Such pronouncements were accompanied by frequent threats to sell all that Abigail had and to depart with the proceeds to a more desirable location.
By the fall of 1770 Abigail was well along with child. Her mother, hearing that Broadstreet was “very uneasy” with his wife and still threatening to leave her, summoned him to the matriarchal presence. There followed a stormy scene in which she tried to persuade her son-in-law to stay with his wife “in her difficult circumstances, she being very unwell and unfit to care for herself.” Pleas and offers of assistance were of no avail. All that Broadstreet would say was “that he was a fool for having her and that he would not tarry with her for he had much rather be in the Mines.”3
Perhaps in reaction to this interview, Broadstreet then left home. He soon returned, however, and, repenting past excesses and promising future good behavior, persuaded Abigail to move with him into her own house, about half a mile distant. Almost at once he began to threaten abandonment again. According to Abigail's sister Mehitabel, who helped her to move, “He appeared very ill-natured, cursed his wife and cursed himself { 281 } and behaved like a man in distraction, wishing that he was in Salem Gaol or in the Spanish Mines, or in the worst place in the world other than there, and screaming and hallowing and slapping his hands together.”4 There were moments of respite, but on the whole Broadstreet's unsettled and unsettling conduct worsened during the next two weeks. He would waken Abigail in the middle of the night, ranting of money or screaming that the devil was coming, so that periodically she was forced to take refuge with her mother, who also lived nearby, just to get a night's sleep. Finally, early in December, Broadstreet departed once more, taking his possessions and vowing never to see his wife again.
After waiting a few days for her husband's return, Abigail took up permanent residence at her mother's in order to obtain the bare necessities of existence. Here, Broadstreet, accompanied by friends who sought to reunite the couple, visited her on several occasions. In these interviews she conceded that he had not harmed her, other than by his nocturnal out-bursts and perhaps a certain overinsistence on his connubial prerogatives. She remained adamant in her refusal to rejoin him, however, at least until winter and her pregnancy had run their courses, for she feared that an irremediable lack of funds sufficient to maintain Broadstreet in his desired style would quickly reawaken all the old dissatisfaction and lead to a resumption of his rantings. Without some security for his good behavior, which was not forthcoming, she “durst not [return], for he behaved like a madman and ... he would infallibly be the death of her: not in laying violent hands upon her, but by worrying and frighting her and hindering her from sleep.”5
On several occasions Abigail agreed to go to some other location, away from her family, which Broadstreet saw as the evil influence upon her. His efforts to find a place for them to live were inconclusive, however, and each meeting seemed to end on a similar note. Broadstreet would formally invite his wife to come and live with him again, but in the same breath aver that he did not care if she ever did. In March 1771 Abigail's child was born. Thereafter, her husband grew increasingly embittered. In calmer moments he blamed the separation on family influence, but more and more frequently he stated that he wished wife and child were dead and expressed his seeming hatred of them in a series of drastic epithets. It was reported that in February he had rented Abigail's house, sold off her hay, and “advertised” her—that is, publicly disclaimed responsibility for her debts.
As her strength returned, Abigail sought a divorce in a proceeding before the Governor and Council, who had jurisdiction of such questions under a Province Act of 1692.6 In England, questions of divorce were within the competence of the ecclesiastical courts, which applied the canon law. These courts could decree an absolute divorce, a vinculo matrimonii (from the bonds of matrimony), only when the marriage itself { 282 } was a nullity because of such defects as consanguinity or impotence. In such a case the parties were free to remarry. When the grounds were adultery, cruelty, or the like, the marriage itself was held valid and unbreakable, and the ecclesiastical courts would grant a divorce a mensa et thoro (from bed and board). This was in effect only a decree of separation and maintenance, each party being barred from remarriage during the other's lifetime. If the aggrieved party in a divorce a mensa wished further relief, he or she might, at least in a case where the grounds had been adultery, apply to the House of Lords, which would, upon appropriate investigation, order the marriage dissolved, permitting remarriage.7
In Massachusetts, because of the power of the Governor and Council, the location of jurisdiction to grant divorces a vinculo was ambiguous. The Court of Assistants in the old Colony seems to have granted this relief in cases of desertion, bigamy, and adultery, acting in its judicial capacity;8 but after 1692 the Governor and Council did not follow suit. From 1755 to 1757 the General Court took to itself the powers of the House of Lords, granting divorces a vinculo in cases in which the Governor and Council had previously granted decrees a mensa 9 It was perhaps in response to these proceedings that Governor Pownall in a 1760 message to the Council raised the question whether that body had jurisdiction of divorces a vinculo as a civil, rather than a spiritual, court under the Province Act of 1692. “If not,” the Governor continued, “the Doubt then remains whether this Power lies with the Legislature of this Province or only with the Parliament of Great Brittain.”10 The Board of Trade had referred this question of legislative power to the Privy Council, but, although hearings were scheduled in 1759, none of the private acts granting divorces seems to have been disallowed.11 Perhaps through Pownall's influence, however, the General Court granted no further divorces, and the Divorce Records of the Governor and Council show that the latter body thereafter issued numerous decrees a vinculo in cases of adultery.12 The relief which in { 283 } England could be had only by the petitioner who could afford to go to the House of Lords, was thus available in Massachusetts in the ordinary course.
Abigail's libel, filed by Jonathan Sewall in July 1771, alleged Broad-street's departure in December of the preceding year, his failure to support his wife since that time, and his constantly expressed threats to her fortune and wishes for her death. It concluded with a prayer “that by your Excellency's and Honors' Decree she may be divorced from Bed and Board with the said Joseph and thereby be intitled to the separate and sole use and improvement of her own Estate for the maintenance of herself and Child.” Broadstreet's answer, propounded by Josiah Quincy Jr., denied Abigail's allegations and attributed the separation to the efforts of “dark and mercenary Enemies to his household,” who by “insinuating arts withdrew the affections of his Wife.” Two justices of the peace were assigned to take testimony for both sides, and on 17 October, before the Governor and Council, the depositions were read and the parties heard.13
Adams' notes of the proceedings, printed below, indicate that he argued Abigail's case, probably with Sewall. The authorities which he collected show that the canon law, as applied in the ecclesiastical courts in England, was an important source of the Massachusetts law of divorce. He thus limited himself to questions concerning the divorce a mensa as the canon law defined it, seeking to establish that desertion and cruelty were grounds, and were present in this case.
Under canon law the husband could be required to pay alimony after a divorce from bed and board, the theory being that, since the marriage still existed, he was merely continuing to perform the duty of support which he would have had in normal course. Since the wife by her conduct could forfeit alimony, Adams also endeavored to lay the groundwork for an argument that Abigail had not done so in this case, despite her coolness toward Broadstreet's attempts at reconciliation. The arguments were apparently successful on all counts, for with the sole dissent of Governor Hutchinson, who did not agree “that there was a sufficient cause for a separation,” the Council decreed a divorce from bed and board. Abigail was awarded alimony of £25 per year, payable in quarterly installments, plus the costs of the proceedings.14
That the separation which Abigail sought ensued seems clear. What is less clear is her success in obtaining alimony. In 1774 she was forced to { 284 } petition the Council again, because Broadstreet had paid her nothing. In accordance with the statutory procedure for the enforcement of its decrees, the Council ordered a warrant to issue for Broadstreet's arrest.15 He could be held in prison until he chose to comply. Whether he was actually taken, and whether the pains of incarceration eventually triumphed over his enmity toward Abigail do not appear in the record.
1. Diary, Summer 1759. 1 JA, Diary and Autobiography 111.
2. See the deposition of Mehitabel Fuller, 21 Sept. 1771, in the file. SF 129762. The account which follows is pieced together from numerous depositions found there.
3. Deposition of Abigail Fuller, widow, 21 Sept. 1771. SF 129762.
4. Deposition of Mehitabel Fuller, note 2 above.
5. Deposition of Archelaus Fuller, 21 Sept. 1771. SF 129762.
6. Act of 3 Nov. 1692, c. 25, §4, 1 A&R 61.
7. See Richard Burn, Ecclesiastical Law , 2:428–431 (London, 2d edn., 1767); 1 Holdsworth, History of English Law 622–624; 10 id. at 608; 11 id. at 622–623; 12 id. at 685–686. Compare Quincy, Reports (Appendix) 577. See also No. 23, note 5.
8. See George L. Haskins, Law and Authority in Early Massachusetts 195 (N.Y., 1960); Petition of Mary Sanders (1674), 1 Records of the Court of Assistants 1630–1692 30 (Boston, ed. John Noble, 1901); Petition of Hope Ambrose (1678), id. at 127; Petition of Susannah Goodwin (1680), id. at 168.
9. See Act of 10 Jan. 1755, No. 81, 6 A&R 165; Act of 10 June 1755, No. 82, id. at 169; Act of 15 April 1756, No. 83, id. at 170; Act of 18 April 1757, No. 84, id. at 173; Act of 22 April 1757, No. 85, id. at 174; Act of 14 June 1757, No. 86, id. at 177.
10. Supreme Court Probate Rec. 1760–1830, fol. 1, printed in Quincy, Reports (Appendix) 577.
11. Preface, 6 A&R v–vi; Smith, Appeals to the Privy Council 582–585.
12. See, for example, No. 23. There were at least thirty-five divorce proceedings in Massachusetts between 1760 and 1775, of which twenty were decrees a vinculo for adultery; five were annulments for prior marriages; and seven were divorces from bed and board for cruelty and the like; in at least two cases a decree was denied for insufficient evidence. Divorce Recs. In the latter category was Shank v. Shank (1772), in which a divorce a vinculo sought for adultery was denied on evidentiary grounds. The libel in the file is in JA 's hand. SF 129766. The first Massachusetts Divorce Act after the Revolution empowered the Supreme Judicial Court to grant divorces a vinculo, not only on the traditional canon-law grounds, but for bigamy and adultery as well, thus adopting what seems to have been the pre-Revolutionary practice. The court could also decree divorce a mensa for extreme cruelty. Mass. Acts 1785, c. 64, §3 (1786).
13. Divorce Recs., fols. 68–70. See the libel and answer in SF 129762. The Commission to Andrew Oliver Jr, and William Brown, dated 12 Sept. 1771, and a deposition of Daniel Bixby, 5 Oct. 1771, are in MHi:Photostats; for other depositions, see notes 2–5 2, 3, 4, and 5 above; note 27 12 below.
14. See Divorce Recs., fols. 68–70. JA received a fee of 48s. JA , Office Book, MQA.
15. See her petition in SF 129762. The statutory authority is that cited by JA , note 24 9 below.