unto him while her eyes are open; hee the said Tubbs appearing at this court, and earnestly againe sollissiteing the court for a diviorce from her,

"This Court sees therfore cause and does herby declare that the said William Tubbs is legally cleare from his covenant of marriage formerly made with Marcye his late wife and free him. from those dutyes relateing therto; and that the said Marcye hath cutt of herselfe from any right henceforth to the pson or estate of the said William Tubbs hir late husband and herby alowing him libertie further to dispose of himselfe in marriage, if hee see fitt so to doe." 4 Plymouth Records 192.

Divorces in the four colonies of Plymouth, Massachusetts, Rhode Island, and Connecticut were granted for incest, marrying an uncle's widow, bigamy, adultery, uncleanness, impotence, desertion, cruelty, abusive carriage toward the wife, defaming her and applying obscene epithets to her, irreligious conduct, and neglect to support his wife and children. Comparatively a large number of divorces for these causes were granted, prior to 1680. Others were granted before or after that time, where no cause was assigned. The probabilities are that most of the latter divorces were granted because the court or other tribunal thought on the whole that would be for the best.

In 1661, Elisabeth Burge obtained a divorce from Thomas Bruge, for uncleanness. The court gave her one third of her husband's estate, a bed, and some few articles of personal property, as alimony. 3 Plymouth Records 221.

After years of legal tribulations, Elisabeth Williams was granted a suspensive divorce from John Williams, upon the ground of her husband's "abusiue carriages towards her both in word and deed by defaming her in rendering her to bee a whore, and psisting in his refusing to perform marriage duty vnto her." 4 Plymouth Records 93, 117, 121, 125. This case was tried by a court and jury.

In 1639 the colony of Massachusetts Bay provided for two courts of assistants "to hear and determine all and only actions of appeal from inferior courts, all capital and criminal causes extending to life, member, or banishment." The early divorce practice in the Bay colony was founded either on custom or this

statute.

When this law was reconstructed, in 1658, the words “all causes of divorce were inserted after the word "courts " and before the word "all." The volume of "Ancient Charters," &c., assumes that these words were in the act of 1639, but Mr. Cowley, who has carefully compared all the acts, says that these words were not in that of 1639. Under the supposed authority of this act, the first divorce was granted by the court of assistants at Boston on December 3, 1639. The decree is as follows:

"James Luxford, being psented for haveing two wifes, his last marriage was declared voyde, or a nullity thereof, & to bee divorced, not to come to the sight of her whom hee last tooke, & hee to bee sent away for England by the first opportunity; all that hee hath is appointed to her whom hee last married, for her & her children; hee is also fined 100£, & to bee set in the stocks an houre vpon a market day after the lecture, the next lecture day if the weather pmit, or else the next lecture day after." I Records of Mass. 283.

This decree was palpably a sentence of nullity. Here alimony was given to the last wife. The justice of this order is apparent, for Luxford was a black sheep.

The supreme court of New Hampshire has long been very liberal in the view the judges have taken in respect to alimony. This was due in the outset to the disgraceful blunder in the divorce suit of Sheafe v. Sheafe, where a decree was entered against a woman, who had not been shown to have been guilty, because the then chief-justice loved his ease too much to read the entire testimony, and granted the divorce because of the bulk of testimony rather than its weight; but it is very questionable whether the present court would go so far as to give alimony to a woman whose marriage was utterly void, and whose children in law were the children of nobody.

From this time forward the mass of divorces in the Bay colony were, apparently, generally granted by the court of assistants, or by the general court. Unfortunately, as we have seen, the record thereof, during almost the entire time that New Hampshire was a part of Massachusetts, perished in the flames. But the county court at the mandate of the general court, and the general court as an extraordinary tribunal, sometimes granted divorces during this period.

On May 22, 1656, the following decree was made:

"In answer to seuall petitions pferd by Georg Halsell & his wife respecting her diuorce, the Court, thinkes meet to referre the examination & finall determination of this case vnto the Court of Assistants, to whom properly it doth belonge; & it is hereby ordered that the sd Joan Halsell shall haue liberty to goe to the publicke meetinges, or elswhere, without interuption from the sd George, or if the sd Georg shall any wayes molest her till the case be issued, he shallbe committed to prson till he giue bond to the Gounr, or Dept Gounr, for his good behavior; & it shalbe lawfull for any inhabitant, on sight of any disturbance, to rescue her out of his hand, & convent him before authoritie to be comitted to prson." 3 Records of Mass. 413.

On October 14, 1656, the following order was made:

"Mary Bachiler pfering a pet. to be divorced from her husband, now in England, the examination of the case is referd to ye next County Court at Yorke, & the sd Court to make returne of what they find in the case to the next Court of Assistants, who haue power to issue & determine the same." 3 Records of Mass. 418.

On October 16, 1650, the general court made the following decree :

"In answer to the petition of William Palmer, desiring a bill of divorce maybe graunted him from Ellinor his wife, which, since his coming into these parts, hath wholy deserted him, and marrjed herselfe to one Willjam Pope, of Salisbury, in the county of Wilts, in England, and hath had children by him, the Courte judgeth it meete (on the pervsall of the evidence of Xtopher Batt and John Wheeler, of Salisbury aforesajd, now in New England, affixed to the petition) that the sajd William Palmer should be divorsed, and declared heereby that he is legally divorsed." 4 Records of Mass. (Part I) 32.

On May 16, 1654, the general court made the following decree :

"In ansr to the peticon of Dorcas Hall, desiring a divorce from hir husband, Jno Hall, who is gonn from hir, &c, the Court, finding it fully proved that Jno Hall hath voluntarily wthdraune himself from Dorcas, his wife, and contjnewes in his

obstinate refusal to cohabit wth hir as his wife, and hath broken the bonds of wedlocke, as by his oune confession, attested by Mr. Wm. Coddington & Wm. Jeofferjes, wth the oath of Lawrence Turner, the Court judgeth it meete, that the sajd Dorcas shallbe, & hereby declares that shee is, legally diuorced from the sajd Jno Hall, and is at hir libertye to marry wth any other man." 4 Records of Mass. (Part I) 190.

On May 14, 1656, the general court made the following order:

"In answer to the petition of Wm. Clements, craving a divorce from his wife, who for seuerall yeares hath refused marriage fellowship wth him, the Court referrs the hearing and determining of the case vnto the County Court of Charlestoune next month." 4 Records of Mass. (Part I) 259.

The following, in the nature of an injunction, was ordered by the general court May 14, 1656:

"In ansr to the peticon of George Halsall, together wth the ansr to the peticon of Joane Halsall, there having binn two comittees that haue had the hearing of this case, whose aphencons haue binn different therein, this Court is not willing to act heerevppon, but judge it meet to referre the examinacon & final determinacon of this case vnto the Court of Assistants, to whom it doth propperly belong; provided, and it is heereby ordered, that the sajd Joanne Halsey shall haue libertje to goe to the publicke meetings on the Lords & lecture dajes, or at other times, on hir occasions, wthout interruption or disturbance from George Halsey, or any on his behalfe; and if the sajd Halsey shall goe about to seaze on hir, vex, molest, or any way disturbe hir in the streetes, or otherwise, till the cawse be issued, on complaint thereof to the Gouernor or Dept. Gouernor, he shall be comitted to prison till he give bond for his good behaviour; and it shall be lawfull for any inhabitant, on sight of any disturbanc or vjolenc offered the sajd Joanne by the sajd George, to rescue hir out of his hands, & to convent him before authoritje." 4 Records of Mass. (Part I) 272.

On October 14, 1656, the general court passed the following order:

"In ansr. to the peticon of Mary Batchiler, desiring liberty from this Court to dispose of hir self, hir husband being gonne

from hir, & as she ptends, since his going, married, &c. the Court judgeth meete to referr the examination of the case to the next County Court at Yorke, and the sajd Court to make retourne of what they finde to ye next Court of Asistants, who haue power to issue and determine the case." 4 Records of Mass. (Part I) 282.

On May 28, 1659, the general court made the following order:

"In ansr to the petition of George Halsall, the Court, on a hearing of the case betweene the sajd George Halsall & Joane, his late wife, doe order, that the determination of it be referd to the next sessions, & in the meane time forbidd either party to marry." 4 Records of Mass. (Part I) 380.

On May 9, 1678, the court made the following decree :

"In ansr to the peticon of Mary Madox, the court, hauing read & considered the contents of this petition, doe judge & declare, that ye condition of the petitioner being indeed circumstanced as she hath therein declared, yt her husband, Henry Maddox, hauing binn absent for a thirteen yeares, & never wrote or sent to hir in ye time she is at liberty from the conjugall bond made wth the sajd Maddox & at liberty to dispose of herselfe as she shall see meete." 5 Records of Mass. 188.

On October 15, the general court made the following decree : "In ansr to the petition of Mary Lyndon, wife to Augustin Lyndon, humbly desiring the favour of this Court to consider her poore, desolate, and distressed condition, & to set hir free from that marrjage relation in which she now stands to hir sajd husband, since he hath in so many particculars broken couenant wth her, & that yow will be pleased to setle vpon her & her children the sajd two thirds parts of the sajd land, and that smale matter that now remajning in Deacon Allens hands; so shall she euer pray, as in duty bovnd. The Court, hauing heard hir case, doe declare the petitioner, Mary Lyndon, to be freed from hir former husband, Augustin Lyndon, and at liberty to marry another man; and doe further grant, that the land mentioned in the peticon, and the estate in Deacon Allens hands, be deliuered to the sayd Mary for her & hir childrens vse till the County Court shall take further order." 5 Records of Mass. 248.