Chapter 6

In the same opinion, the court says, "Marriage and divorce here have always been regulated wholly by statute." So far as it relates to divorce, this statement betrays a lack of information touching the divorce legislation of Massachusetts, as a Colony, as a Province and as a Commonwealth, which is simply amazing. It would be much nearer the truth to say that divorce here has always been regulated wholly by the common or unwritten law. Prior to 1658 not a word of Statute Law was enacted touching divorce in the Old Bay Colony, and not a word of Statute Law touching divorce was ever at any time enacted in Plymouth Colony. It is understood, however, that the Court of Assistants, which was established in Massachusetts in 1639, exercised the divorce power before the same was conferred upon it by any express grant; though the records of that court during the period from 1640 to 1673 have been lost, having been burned, as is supposed, with the Town House, in 1747.

In 1658 the Court of Assistants was expressly authorized to hear and determine "all causes of divorce;" and nothing can be more certain than that that court granted divorces in many cases.[9]

[9] See Cowley's pamphlet, "Our Divorce Courts," &c., pp. 11, 13, 28-30. In the last revision of his History of the United States, Mr. Bancroft has corrected the errors which disfigured all the earlier editions of that work, and which are exposed on p. 10.

The leading members of the General Court (which then included the Assistants), had been born and bred in England, and were familiar with the general principles which governed the Ecclesiastical Courts, and the High Court of Parliament, in granting divorces. They knew nothing of any rules or principles applicable to divorce proceedings except those which were recognized in the land of their birth, and of course they intended that those rules and principles should be followed, as, in fact, they were followed, by the Court of Assistants.

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]

[10] See the supplementary chapter in the late John A. Goodwin's "Pilgrim Republic," soon to be published. Perhaps the case of Wade was rather a decree of nullity than a divorce.

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.

BY MARJORIE DAW.

"Spin, spin, Clotho, spin," hummed a gay, masculine voice. "Methinks, fair Mistress Dorris, even the Fates themselves could not be more devoted to their task than are you to that busy little wheel."

Pretty Dorris Gordon glanced up from her seat by the long window opening into the cool, grassy orchard, where the sun played hide-and-seek with the shadows and then came back to rest _caressingly_ on her bent head crowned with its own sunshine of chestnut hair, but she stayed neither busy hand nor foot as she answered,--

"Since your mighty mind is bent on mythological comparisons, Capt. L'Estrange, 'tis but a poor compliment to a fair lady when a gallant officer compares her to three old Fates,--unless he qualifies the remark somewhat. Could you not add something about my fairy fingers weaving the destiny of man? I fear your quick French wits have been dulled by that cold British bullet in your arm."

"Nay, 'tis not the British bullet, but yourself, _ma belle cousine_, that bewilders my French wits and inspires me instead with American patriotism," is the quick retort.

"Far better than your last speech," laughs Dorris, taking from her belt a deep-red rose fastened by a true-love knot of blue ribbon to a snowy white bud. "So much better that I will bestow on you my colors. See! the red, white, and blue! Wilt wear them like a brave and gallant knight?"

"They shall be like Henri of Navarre's plume: ever foremost in the struggle for right," the young officer answered, bending to kiss the little hand which held the proffered treasure. "I well know no empty compliment will please you as that promise, and indeed its sincerity will soon be tested, for my arm is so much better that I am ready for action, and next week I am off."

"So soon?" cried Dorris. "Oh, that I were a man, to fight for the stars and stripes!"

"I am always sure to find the words here set to the tune of Yankee Doodle," breaks in a new voice with a light laugh. "Still, you deserve a laurel wreath for that enthusiastic wish. Will a humble offering of roses be unworthy of notice, fair Goddess of Liberty?" and a shower of sweet-scented blossoms fell over Dorris' head and shoulders.

"O Mr. Endicott! goddesses are not crowned so unceremoniously. Imagine Paris pelting Venus with that apple that made so much trouble," says Dorris, glancing up half angrily, half mirthfully, at the tall intruder leaning so easily against the window. "I am almost minded to make you hold this skein of yarn, as a penance, while I wind it."

"Alas! she descends from a goddess to the most prosaic of mortals," sighs Endicott; then springing through the low window, "I am ready to obey; but that skein is imposing. What _is_ its destiny?"

"And why, oh, why this inseparable devotion to that unfeeling wheel?" adds L'Estrange. "I came for a stroll, and, _voilà!_ she cannot leave her spinning. Is it a trousseau, that must be ready when some lover comes home from the war?"

Dorris's bright face saddens suddenly, the perfect mouth loses its arch curves, and a shadow creeps into the brown eyes as the long lashes droop over them.

"The skein is to be knit into socks for the soldiers," she says simply; "and as for my wheel, I love it because it is connected with one who has been more to me than any lover. 'Tis but a homely story, but I will tell it to such old friends as you. I need not tell you that I have a brother in the army, but you do not--you cannot--know how dear he is to me, how he has taken the place of both father and mother. It seems as if brother and sister had never been bound by ties so close, and when this war came upon us I watched him day by day, knowing well the thought in his heart, and trembling for what I knew _must_ come; and yet when Rex came to me and said, 'Little sister, my country needs me: can you be brave, and bear it, if I go?' oh, then it seemed to me that I could not bear it! But I thought of the brave Lafayette leaving his home and loved ones to fight for us, a foreign nation, and my heart smote me that _I_ could not be willing to offer my mite for my own dear country, and I bade my brother, 'Go, and God-speed.' It was only a few weeks before that he had given me this wheel, and almost his last words were, as he stood smiling in the door-way, 'Remember, Dorris, I shall expect to find on my return one dozen handkerchiefs spun and woven by yourself and that wonderful wheel.' I have remembered that careless injunction, and have obeyed it. There lies awaiting his return the pile of snowy linen, but we have not heard from him for long, long weeks, and sometimes my heart seems breaking, with the constant dread that haunts it. Do you wonder now that I love my dear little wheel?"

Impulsive, warm-hearted, patriotic Dorris ends with a little sob in her voice, and L'Estrange welcomes the entrance of the host and hostess of the old-time mansion, as it covers the awkward emotion of the moment. As he advances to pay his _devoirs_ to them Keith Endicott seizes his opportunity to say softly, as he bends over the head buried in the now idle hands:--

"Sweet friend, you said you wished you were a man, to fight for the flag; remember, even though 'tis hard, 'They also serve who only stand and wait.'"

Then, while Dorris tries to change the sob into words, he follows the others into the wide, long hall, where the breezes, sweeping in through the open doors at either end, fill the summer air with delicious coolness, and the scent of roses mingles with that of newly-mown clover. The breezes, too, bring to Dorris bits of conversation from the hall; but they fall on unheeding ears until an abrupt speech from her uncle claims her attention.

"Endicott," says his voice, "why don't you join the army? Such men are being called for,--young, strong, and able. Why don't you go?"

Dorris almost holds her breath as she awaits the answer. She scarcely knows how many times she has asked herself that very question. The answer comes quietly, almost indolently, though she knows that Endicott's reticent nature must be annoyed beyond measure.

"Why don't I? Really, I do not know, sir. Young, strong, and able, an idle fellow enough. I think it must be because it hurts, and I'm a dreadfully selfish fellow."

What reply could be made to his careless, easy tones? And the talk drifted smoothly on--the more smoothly, perhaps, since no one believed a word that he said, for Keith Endicott ere this had earned the name of the soul of bravery and honor; but Dorris dropped to the ground the roses that had lain all this time in her lap, as if an unseen thorn had wounded her, and, rising, went away to her own cosey room, where she flung herself into an arm-chair and fell into a deep study, looking from her window through the trees to where the blue waters of the Charles gleamed and rippled in the sunlight. It was a lovely spot, this home of her aunt in the suburbs of Boston,--a home which Dorris had called her own since her parents' death, years before, when she and her brother had been confided to her aunt's tender care. And Dorris loved every spot of this rambling, old, colonial mansion, from its spacious ballroom, and its wide porches, to her own room, with its faded tapestry hangings, its great fireplace and bright brass andirons, its hanging book-shelves with their store of well-chosen volumes, the English titles varied here and there by a Latin or French classic (for Dorris had studied with her brother, and was quite proficient in both languages; indeed, L'Estrange delighted in calling her a _bas-bleu_ in a vain attempt to tease her), its tall, brass-handled secretary with its secret drawer, which Dorris called so tantalizing, because she had no secret to hide in its depths, and the eight-day clock ticking away in the corner, which now struck the hour, waking Dorris from her revery into words:--

"I wonder why he does not go: he is no coward; it is not that. I verily believe it is as he said: he is selfish, and does not want the trouble. How he laughs, and disbelieves in everybody, even himself! and what a narrow life he must lead! And yet, sometimes I think better, as I needs must, of my old playmate. Just now he spoke to me with real feeling, and truly, it was a sweet and comforting thought he offered me. And yet the other day, after church, when Gen. Brewster spoke so cordially to Henri L'Estrange and Lieut. Allen, and then bestowed rather a contemptuous glance on Keith,--I mean Mr. Endicott,--I caught him quoting, under his breath, 'The world is a farce, and its favors are follies; but farces and follies are very dear to human hearts.' I could not help saying, 'When its favors are well-earned I think they cease to be follies.' It was, at the best, bad taste to cavil in that way at Henri, who is so brave and enthusiastic, and has come all the way from his own and his father's native France because his mother's land needed brave, true men. And he is going away next week; if he could only send us news of Roy!"

"Dorris!" called her aunt's voice. "It is quite time you were ready for dinner, dear. And do you not think you were failing in courtesy to your guests to leave them so abruptly?"

"Cousin Henri has had enough of my society, to-day, Aunt Dorothy, and I've no patience with Keith Endicott; you heard how he answered uncle. But I'll come in a moment, auntie," answers Dorris; and the arm-chair loses its fair occupant.

Quaint, dainty little Dorris! What would not I--I, your great-granddaughter, in this degenerate year of 1885--give to see you just as you looked then, thinking over this and that in a manner not so very unlike the maidens of this generation! Ah, well! I must perforce content myself with that miniature of you as "Madam," in your lavender brocade, with the feathers in your powdered hair, and the row on row of pearls about your throat. Very stately and dignified you look there; and yet, Great-grandmother Dorris, I can see the spice of "innate depravity," as I doubt not your grave pastor would have called it, and catch a glimpse of the quick temper and warm heart in those bright eyes and that saucy little nose.

The evening before Capt. L'Estrange's departure has come, and a few of the many friends he has made during his short furlough spent with the Gordons are gathered there to make the last hours of his stay such as shall afford him pleasant recollections in the future. Dorris makes a charming little hostess as she flits from room to room, and at last pauses on the porch before a group of three, L'Estrange, Endicott, and Lieut. Allen, an old friend who is home on sick-leave, who welcome warmly and admiringly the slight, graceful figure in its white dress, with a bag of red, white, and blue hanging from her dimpled elbow, a fancy of Dorris, enhanced by the red and white roses and blue forget-me-nots in her hair,--flowers which she found on her spinning-wheel, with no clew to the giver.

"Mon Capitaine Henri, Aunt Dorothy wants you for a moment," she says now. "They are all enjoying themselves, so I came out here to rest. Lieut. Allen," she adds graciously, as her cousin disappears, "I am glad that we are to have one representative of the army left after my cousin leaves us."

"I thank you, Miss Gordon," answers the young soldier, "but my stay is limited; you see I hobble around now with the aid of a crutch. I only wish I could go with your cousin."

"L'Estrange is in your regiment, is he?" asks Endicott.

"Yes, we fought side by side at Saratoga. You know what a close conflict that was. Such a din of shot and shell that an order could be scarcely heard in the tumult. It was hot work I can assure you."

Dorris is leaning forward in breathless interest, and as he pauses asks a characteristic question: "How did you feel then? What were your thoughts?"

"Well, it was a most absurd thing, but I found myself, though I could scarcely hear my own voice, repeating a verse from one of the old cavalier ballads:--

"'We were standing foot to foot, and giving shoot for shoot; Hot and strong went our volleys at the blue; We knelt, but not for grace, and the fuse lit up the face Of the gunner, as the round shot by us flew.'"

Endicott smiles. "But it was a good battle-cry, Allen. I remember your reciting verses at Cambridge in your college-days, but it was generally 'A sonnet to your mistress' eyebrows,'--some fair one who had conquered your heart for a week perhaps."

Dorris is not to be diverted from the absorbing topic of ball and bayonet, and returns to the charge.

"But how did you feel when you were wounded?" she asks again.

"Oh, I did not know where I was hit. In the midst of the fight I wondered why I couldn't move my left foot; it was like lead in the stirrup, and looking down I saw the mark where the ball had struck, and the blood following it. It was a little quieter then, so I got the sergeant near me to clip, and ease my foot a little. But you should have seen L'Estrange: he was wounded then; and when the order came to charge he rushed on, waving his sword, with the blood dripping from his arm. How the men rushed after him! And when he came back supporting another poor fellow, and insisting on his being cared for first, you should have heard the men cheer him."

"And you, Allen," suggests Endicott,--"how did you get on with that wound of yours?"

"Well, I was rather faint by the time we were ready to go back to camp; but somebody set me straight in the saddle when I reeled, and I managed to get back all right."

"But where was the surgeon all the while?"

"To tell the truth, I was so much better off than most of the poor fellows, Keith, I made him help the rest. That was all."

"So you took the chance of enjoying a British surgeon's tender mercies, for the sake of men, who, perhaps, could not live anyway. Allen, you always were a good-natured Don Quixote."

Allen laughed as if he saw something beneath the words which excused their lightness, but Dorris frowned, as she looked admiringly at the manly fellow so ready to see his comrade's unselfish bravery, so unconscious of his own. She often saw the wounded soldier leaning on Endicott's arm, and their words seemed grave and earnest, while Endicott's face seemed for a time to lose its cynical sneers. And then Dorris had relented, only to harden again at some irreverent words of this incorrigible Keith. A sharp retort was on her lip now, but she restrained it as L'Estrange once more joined the group, and the talk drifted into quieter channels, the young soldiers a little graver than usual. At last L'Estrange spoke with tender regret of the peaceful scenes he was to leave so soon behind him, and Endicott answered:--

"Yes; think of all the drives and walks and talks, and all the charms of civilized life you forego, and then of the camp-life and forced marches, and chances of broken arms and legs, which you endure, and all for that one sweet virtue,--patriotism."

This was too much for quick-tempered Dorris. Out flashed her words:--

"Mr. Endicott cares so little for that sweet virtue that he will enjoy your pleasures while _you_ fight _his_ battles. If you will excuse me now I will return to the parlors;" and with little head proudly erect, Dorris started to enter the house, entertaining the fond hope that she had at last paid Keith for all his trials of her patience and patriotism. Alas!

"The best laid plans o'mice and men gang aft a-gley;"