The Justice of Frontier Divorce
By Amber Chapin
Certainly in the 1860s substantial motives were required to obtain a legal divorce and irreconcilable differences would not suffice. The arguments, frequently regarded as reasonable and necessitating a divorce, included abandonment, adultery, physical and verbal abuse, and failure to meet the prescribed duties and responsibilities as a husband or wife. Justifications for divorce were not isolated, and often coincided with others. For example, a woman might file for a divorce because her husband is abusive and fails to provide for the family, or a man might file for divorce because his wife committed adultery and abandoned him.
The most common reason cited for divorce by either of the sexes in the 1860s was abandonment. In the twenty records examined, abandonment was cited as the number one reason for divorce in sixty percent of cases. Failure of the husband to provide the necessities of living and spousal abuse tied as the subsequent grounds for divorce, cited in approximately one-third of cases. Following slightly behind these reasons for divorce was adultery.
Women were much more likely to file for divorce than men, proven by the fact that women comprised two-thirds of plaintiffs in divorce cases. In the sixty-eight divorces that occurred in Walla Walla County throughout the 1860's, women were plaintiffs in 47 cases and men were the plaintiffs in 21 cases. Of the twenty cases examined, no situations existed in which the court declined the request for a divorce. In some cases, no final decree of the court is available however, these occurrences involved abandonment and it is likely the divorce was granted without further issue.
Reasons for Divorce
In the 1860’s, abandonment was the most common reason for divorce. Other legitimate and frequently cited reasons for divorce included verbal or physical abuse, failure to provide the necessities of living, and adultery. In the cases where men filed for divorce, it appears likely that women were happy to get the divorce as well. After all, Elizabeth Brown abandoned Angus for San Francisco, Martha Roberts loved another man that she planned to marry as soon as she could divorce Alvin and Julia La Fleur disserted Henry for another man and the Big Bend Mines in British Columbia. Women tended to file for divorce when their husband’s behavior was extremely appalling and perhaps became more than they could tolerate. According to Ellen, John Thomas was abusive, refused to provide for she and their daughter and finally abandoned his family. Nancy informed the court that she worked because her husband George Bowers refused to provide for her and explained that he cheated on her and in the process contracted venereal disease. Also, he had recently fled to British Columbia, avoiding charges of grand larceny in Oregon. Catherine remained a witness as her husband William Cox committed adultery with an Indian woman from the onset of their marriage until she fled his home and filed for divorce.
In the majority of the cases, the defendant’s side was limited if nonexistent. This is likely because the defendant had fled the territory and was not in Walla Walla County to answer the charges. However, Washington Territorial law provided that “when the defendant does not answer, or answering, admits the allegations in the complaint, the court shall require proof before granting a divorce or a decree of nullity.” Defendants provided statements in response to the accusations against them in a mere three cases, and only two actually argued or disputed the claims. They were Ned Clough and Alexander Lynch, both men accused of being rather abusive. The plaintiffs won their cases consistently, often because the defendant was absent, if not for legitimate reasons.
Although abandonment remained among the most common reasons for divorce in the 1860’s, there was rarely one single reason a couple obtained a divorce. For example, John Thomas was abusive, failed to provide, and finally abandoned his wife Ellen and six year-old daughter Mary. George Bowers failed to provide for Nancy, he had adulterous relationships, and then abandoned her. The evidence for divorce mounted against George with the claim that he was “guilty of adultery and has been affected with venereal disease called “the pox” (Bowers vs. Bowers p. 4). Married at fifteen years old, Nancy is evidence that on the frontier “marrying often exposed young women to physical and verbal abuse while isolating them from their families.” Mary Emily divorced Robert Vint because he was abusive, and failed to provide, likely as a result of his favorite pastimes of drinking and gambling. Mary Emily requested a divorce from Robert “on account of his cruel treatment of herself and older children, his failure to provide even the necessaries of life- his habit of gambling away everything he made and constant and continual habit of drunkenness” (Roberts v. Roberts p. 1). Despite the fact that abandonment remained a common argument for divorce, it is probable that abuse, failure to provide, adultery, or some combination of these or other factors contributed to divorce as well.
Within the twenty cases examined, twelve included abandonment among the reasons for divorce. And of those cases, wives abandoned their husbands nine times and husbands abandoned their wives only three times. Some of these women left their husbands for relationships with other men or to become prostitutes, while others left their husbands because perhaps they regarded being alone as preferable to being with them. Martha essentially forced her husband Alvin Roberts to file for divorce because she was spending time with another man and informed Alvin that she no longer loved him and intended to marry the other man. Alvin notified the court that Martha had recently left her husband’s house to be with “another man whom she declares she loves and intends to marry” (Roberts vs. Roberts p. 5). Cynthia Ann abandoned her husband William Ewing and went to live with two men whom she is believed to have had adulterous relationships with, and she became a prostitute. William told the court that for eight or ten months Cynthia “has had sexual intercourse with diverse persons and publicly exhibits herself as a whore and prostitute” (Ewing vs. Ewing p. 2).
Other fascinating aspects of the cases was gender expectations and ideals, and particularly how the failure of the husband or wife to perform their proper duties provided an argument for divorce. A common reason for divorce, and cited as a reason in seven of the twenty cases examined, were husbands who failed to provide the necessities of living for their family. This generally consisted of basics such as, a home, clothing, and food. The failure to provide often coincided with other reasons for divorce, including abuse, drunkenness and abandonment. In the case against her husband Robert Vint, Mary Emily depicts a rather desperate situation when she, “swears that she was compelled to seek protection of her father’s house and cease to live with Defendant as his wife on account of his cruel treatment of herself and two older children, his failure to provide even the necessaries of life- his habit of gambling away everything he made, his constant and continued habits of drunkenness” (Vint vs. Vint p. 1). She elaborated that her husband neglected to furnish “on many occasions even with bread for herself and children; that he would not provide wood to keep her and her children warm and to cook their food” (Vint vs. Vint).
In William Horton’s testimony requesting a divorce from Kate, he insisted that “all the time since his said marriage with Defendant he has been to her a kind, affectionate and indulgent husband, and has faithfully and properly provided for her in all respects, but that Defendant disregarding her duties and obligations as the wife of Plaintiff, a day after said marriage, began a series of quarreling and abusive” actions (Horton vs. Horton p. 1). Wives who neglected their roles as dutiful, affectionate and obedient, as well as able to tame their husband’s sometimes wild ways, were implied failures in their wifely duties. The court record maintained that Ellen Thomas endeavored to convince John to be a good husband, but “she has wholly failed and her acts of kinship have been rejected” (Thomas vs. Thomas p. 2). William Cox continued his adulterous affair with an Indian woman despite the fact that Catherine had been an “affectionate and obedient wife and did what was in her power to promote his happiness and interests” (Cox vs. Cox p. 1). Gender expectations and ideals applied to both sexes with regard to marriage and divorce. Husbands who failed to provide for their families and to treat their wives kindly were considered failures, as were women who failed to be affectionate and dutiful wives.
Divorce laws differed by state, and Washington Territory divorce laws were rather progressive for the 1860’s. Although Montana’s early divorce laws were also considered advanced, grounds for divorce did not include failure to provide or neglect, reasons Washington laws provided for. In Washington Territory courts granted divorces on the following grounds; consent to the marriage occurred by force or fraud, there was no voluntary cohabitation, adultery, impotency, abandonment for one year, cruel treatment, habitual drunkenness, neglect or refusal of the husband to make suitable provisions for his family, imprisonment, and any other cause the parties could no longer live together.
Generally upon divorce the father retained custody of the children. However, laws concerning this matter were evolving during the 1860’s. Of the twenty cases examined eight of the couples had children. Four of the cases involved abandonment, two in which the husband abandoned his wife and child or children and two in which the wife abandoned her husband, taking the child with her. In the three cases involving verbal and physical abuse, custody of the children was granted to their mother. Alvin Roberts requested custody of his and Martha’s two older children but said she could retain custody of the two younger children; yet the court granted Alvin custody of all four children. In the more extreme case of Alexander and Mary Lynch, Alexander abducted his son during visitation. He was ordered to immediately report to court and custody was granted to Mary. However, fifteen years later Alexander again fought for custody of the couple’s daughter. This time, the court ordered that the parents finance the child’s education and custody was given to St. Paul’s school in Walla Walla County. Alexander again failed to provide the necessary money, abandoned his daughter, and the court finally allowed her move to live with her mother in Oregon at age seventeen. Some interesting cases involved women who abandoned their husband and took their child with them. It is plausible that these women were unwilling to take the chance of losing custody of their children and for this reason choose abandonment over filing for divorce. In seven of eight cases, custody of the child or children went to the mother.
There appear few issues of property disputes in the divorce records, perhaps since abandonment was so common and because a small number of people actually had property or money to quarrel over. Catherine Cox sued her adulterous husband William for specific horses that she wanted, and the court granted all of her requests. Alexander and Mary Lynch had money and property valued at $5,000, $3,000 of which Mary claimed belonged to her when she married Alexander. The court granted Mary $3000. John Thomas abused his wife Ellen, failed to provide even though he had the means, and abandoned her and their daughter. The court ordered a judgment of $1,000 for Ellen. In the case of Ester and John Moorehead, John requested that Ester maintain the couple’s $600 debt in promissory notes, which he insists she kept for herself abandoning him to a place unknown. The court ordered J.C. Joy to give Mary Elizabeth $1,100, half of the couple’s estimated property value. Although J.C. attempted to hide the couple’s assets, Mary Elizabeth pursued the matter in court and the judgment was upheld.
The majority of cases mention no property. However, a few plaintiffs listed their meager holdings and request the court allow them to keep it, which they did. Noted assets included everything from furniture, clothing, cookware, and livestock. Alimony was specified in only two of the cases examined, with the court granting $500 to Catherine Cox and $1000 to Ellen Thomas. More often, the judgments involving property disputes focused on division of assets rather than specific amounts to be paid. The manner of equally dividing possessions between divorcing couples demonstrates a great deal of equality for the 1860’s. This was extremely progressive when considering that divorce law reform was in its early stages nationally and divorce in most other areas of the nation meant women could lose everything from the rights to her children to the clothes on her back.
The court proved rather egalitarian with regard to the payment of court fees. The plaintiff in every case examined was ordered to pay the associated court costs, men and women alike. This may have something to do with the fact that the defendant was rarely present and the court was practical about getting their payments. Washington Territory law asserted “that the court may, in its discretion, require husband to pay all reasonable expenses of the wife in the prosecution or defense of the petition, when such divorce has been so granted or refused, and give judgment therefore.” However, in the cases examined, no evidence exists that husbands paid legal expenses for their wives at the courts discretion or in disproportionate amounts. Rather, the court proved extremely consistent when ordering plaintiffs to pay court costs, even in circumstances where women already struggled as single mothers. The fees ranged from approximately twenty to forty dollars, depending on aspects such as how many witnesses were present and the number of appeals.
The Frontier Justice records available through the Washington State Archives proved invaluable in this research project. Although in the process of this inspection of the records a great deal of understanding has been acquired, there remain many more opportunities for future examination. It would prove interesting to explore Walla Walla County divorce court records from each decade in Washington Territory, and result in greater understanding of the evolution of divorce laws, as well as the causes and circumstances of divorce. Another appealing area of study concerns research of other states divorce court records, to discover possible regional similarities and differences in the reasons and circumstances surrounding divorces, in addition to court decisions and variations in laws. The subject of marriage and divorce provides considerable insight into the lives of men, women and children, affording a fascinating topic for research.
Washington Territory Law, Regulating Divorces, Sec. 4, pp. 692-693
Prescott, Cynthia Culver, “Why she didn’t Marry him: Love, Power and Marital Choice on the far Western Frontier,” Western Historical Quarterly (2007) 38(1), p. 26.
Washington Territory Law, Regulating Divorces, Sec. 7, p. 692-693.