To Mary Sawyer lying on a sick bed in a western Kansas dugout where the damp, crumbling walls provided shelter “little better than living outside,” whose husband swore at her, falsely accused her of adultery, refused to provide adequate food or fuel, and neglected her at the most critical point of her illness, a reminder that the American Bill of Rights was a bulwark against abuse and a monumental grant of personal rights and liberties would have seemed the height of insensitive nonsense. She would have scoffed at the idea that no citizen could twice “be put in jeopardy of life and limb” for the same crime. Her marriage was for her a crime and each day found her life in jeopardy. Eventually, she came to the decision that what she desperately needed was a speedy trial, even a public trial although it would expose her shame, but no matter, as long as it was an impartial trial, guarded by proper (due) processes, in her own community, where she could refute any witness who might deny the facts of her condition, and where she would be assisted in this strange process by counsel. However, she knew she could not look to the federal constitution or courts for relief but must turn to the regulatory powers of the state. And, like at least 224 fellow citizens of Dodge City and its environs between 1874 and 1900, Mary Sawyer brought her story to the Sixteenth District Court in Ford County in a divorce trial. That she found in the district court much the same attitude and procedures in her civil suit as were guaranteed by the Bill of Rights in criminal cases reflected an unexpected sophistication in a frontier that many Americans still considered scarcely civilized and certainly isolated from Eastern judicial expertise.[1]
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At that point, her concern was not with the philosophical beauty of the first ten amendments of the federal constitution or the distinction between federal and state jurisdictions, but rather with what causes the state legislature of Kansas saw as justification for her escape from an intolerable condition that also would provide some small financial support to tide her over until she recuperated. For Mary Sawyer, the crucial questions were: Would the local court provide such a remedy? And, if so, on what grounds?
In contradiction of the stereotypical conception of ironclad marriages and compliant, even beleaguered Victorian wives, divorce rates rose rapidly in the last half of the nineteenth century, jumping almost eighty percent in the United States in the decade of the 1870s.[2] The West led the other sections in this increase and Kansas ranked well up among the leading states.[3] Kansas supported liberal statutes and generous judicial interpretations of what constituted grounds for divorce. The earliest law in Kansas, enacted while still a territory, made provisions for nine causes of dissolution which included such open, catch-all phrases as “shall offer such indignities to the person…of the other as shall render his or her condition intolerable.”[4] The statutes applying during the last quarter of the nineteenth century had expanded to ten causes for granting a divorce. Although omitting the nebulous “intolerable condition” clause, the newer statutes replaced it with an equally flexible expression, “gross neglect of duty.”[5] District courts could and did grant divorce for any one or combination of the ten reasons.
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The rapidly rising divorce rate was not initiated by the changing laws, however, but was, like the laws themselves, a reflection of society’s changing understanding of the duties of marriage partners. Women’s rights were expanded during this period and women took advantage of changed attitudes to free themselves from unfortunate unions. Approximately seventy percent of all divorce cases in the United States were initiated by women (70.3 percent in the Dodge City district). These spiraling numbers, according to Professor Robert L. Griswold, were “an accurate barometer of rising marital expectations” on the part of women.[6] Men also found the same causes women used in seeking dissolution of marriages equally serviceable justification for ending untenable unions.
Perhaps Mary Sawyer would have sought the court’s remedy earlier if she had known that female petitioners were usually favorably received by these all-male bastions of justice. Nationally, women received approximately two-thirds of the divorces granted: 34.2 percent for husbands to 65.8 percent for wives and received even more favorable treatment in Dodge where 30.2 percent of the decisions were for husbands and 69.5 percent for wives.[7]
The new perception of family life saw the marriage relationship involving mutual love and respect in what was to be an economically and sexually compatible partnership to undergird procreation and shared child-nurturing. A husband in such an arrangement was obligated to be a caring and considerate companion who provided for the physical comforts of wife and children; the wife’s reciprocal role was to provide moral guidance for all in the family, nurture the children, look after the home, and cheerfully submit to the husband in all reasonable demands in other matters.[8] Although the bargain seemed tipped
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in the husband’s favor, the woman’s position of moral superiority over men made her, as one western Kansas newspaper put it, “the inspiration of all good works,”[9] and, consequently, the recipient of great respect and discreet behavior from the husband in and away from the home, even though public life clearly reflected male domination. The details of what this domestic relationship ought to be were often hammered out, not in the glorifying, ethereal rhetoric of the women’s magazines and other uplifting literature, but in the bitter, even nasty confrontations of the divorce court. J Godey’s Lady’s Book could describe the moral and spiritual infusion of the mother as the “light of the home,” a loving, caring, and calming companion, but when John H. Cane in the district court charged his wife, Sally, with being “a woman of temper, of a cold and cruel disposition…easily provoked and angered, which caused him to leave home to keep from bearing her abuse” while she was “twitting him” and “aggravating him,” the court might agree that her behavior was “outrageous,” but it was not a deviation so far from the norms of her duty as to justify divorce. On the other hand, when John used “profane and indecent language in the presence of the children,” beat his wife with a broomstick, and failed to provide decent housing when he had the opportunity, the court found he had not fulfilled his duties as a husband and granted Sally a divorce which provided an equitable division of land and property (3770).* It was from such distinctions, aired in public, that the weighing of wifely and husbandly duty was spelled out with full legal
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*Numbers indicate case numbers on file at Boot Hill Museum, Dodge City, or on microfilm of Kansas State Historical Society, Topeka, Kansas.
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and societal sanctions behind them. The District Court in Dodge was to have ample opportunity to deal with the distinctions.
Divorce came to the citizens of Dodge during the last half of the nineteenth century like a common cold, respecting neither class nor financial standing. The two leading merchants, Robert M. Wright and Charles Rath and their wives, found themselves in court, as did many men and women who were so poverty stricken they could not travel even short distances to contest the proceedings. The wives of the lawyers, real estate men, and physicians–men possessing the best education the community could boast (for example, Frederick T. M. Wenie, C. S. Williams, and Harry E. Gryden), had the same dubious honor of being a divorcee as Tinnie Dibrow who signed her petition with an “X”. Most divorce cases concerned obscure, “little people,” but Dodge City’s most noted or notorious lady, Dora Hand, lost her life in a much publicized accident when she came back to Dodge in quest of a divorce from her adulterous husband.
The extant records that I had available show 224 petitions filed between 1874 when the Ninth District Court began business and 1900 when Twenty-Seventh District Court brought the century to a new beginning. During this period, the records show that 139 cases were acted upon in favor of the plaintiff, six for the defendant, and seventeen were continued or dismissed, including one case involving a common law marriage (3657). As for the rest, the record is unclear. In making these decisions the plaintiffs and the courts dealt primarily with five of the ten causes provided for in the state constitution.
As listed in Article 28, Sec. 6 258, the grounds for divorce were:
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“First, when either of the parties had a former husband or wife living at the time of the subsequent marriage.” No cases on record.
“Second, abandonment for one year.” This cause was cited in 54.4 percent of cases and was the sole cause in thirty-six. The one-year absence requirement was a liberalization that had taken place after the original statutes had been adopted in the Legislative Assembly of 1855 when the length of absence necessary before a suit could be filed was two years. The hardship suffered by a spouse and family during an extended absence and the improvement of transportation on the frontier, making travel easier and quicker, indicated that a change in the law was needed. But even more important was the alteration of society’s domestic ideology which stressed the joint obligation of husband and wife to a marriage. When the prescribed duties were broken, as they most surely were when a spouse deserted the family, divorce became a benign remedy to be applied as soon as reasonably possible.[10] If there was a question of return or reconciliation, the court did not hesitate to place limits on the conditions for granting the final decree and the date the decree would become “absolute and take effect,” was set by statute to be at the end of six months.
As was true for the rest of the United States, abandonment was the violation of the marriage status most frequently cited by a Dodge City plaintiff. Between 1867 and 1886 in the United States, 75,191 women and 51,485 men indicated desertion as cause for divorce; in Kansas the difference was much greater, with 4,974 women to 2,217 men.[11] Usually other instances of the breakdown in roles were also indicated, but abandonment was the one cause for divorce that usually was met by a sympathetic court, and the one
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that most frequently stood alone. Obviously without husband or wife present, the Victorian concept of acceptable roles could not be met. Once the absence was proven, or uncontested, the only matters in contention were determining if the plaintiff was at fault in causing the desertion, the allotment of alimony, the assignment of the custody of children, and the division of property.
Generally, the plaintiff had only to demonstrate that the guilty partner had not been present in the home for over twelve months. Noah Newland went for a visit to Ohio and never came back (3264); C. C. Christal in failing health came West in search of a more salubrious climate and could not persuade his wife to join him (3197); and J. W. Coleman “fled the country” to escape charges of attempted incest (3723). Some cases were not so clear: at least two railroad men claimed they were forced by their job to move frequently and could not get home. Emmet Sherwood’s use of that defense was judged spurious, however, when he also confessed he had sent no money home for over a year (3813).[12] Lettie Sugg and Amanda Adams successfully defended themselves from the charge when they demonstrated that they had been forced to return to their families to escape their husbands’ abuse (3318, 2843).
The court’s sympathy was clearly with any woman whose husband had neglected his role as provider, but abandonment also was considered a prime example of gross neglect of duty and was as valid for wives deserting a family as for men who did. The plight of the wife and family with no provider, however, was many times heart-rendingly desperate and the court took cognizance of the fact.
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An interesting side effect of women’s citation of abandonment, particularly in light of present-day understanding of a wife’s right to employment and a career, was the litany of complaints in the divorce petitions regarding the husband’s failure in his major duty as provider which “forced,” “compelled,” or “necessitated” the wife becoming gainfully employed, frequently outside the home. Sarah Foster spoke for a number of wives when she complained that after her husband left her she was “compelled to take in washing” (3732). But even if the husband did not stray, wives who were required to work felt abused if they had to bear the added burden of work which forced them to neglect household duties. Mary Ann Kimmel found “extreme cruelty” in being forced to work in the family laundry “from 6 o’clock in the morning until 11 o’clock at night,” only to have her husband appropriate the money (2313). Others found it necessary to take in boarders, do sewing, serve as nurse, or “go out to service.” The disruption of the woman’s role by a husband’s failure to provide subsistence not only placed the family in a destitute status, but put the woman’s chances of succeeding as wife and mother in jeopardy when she had to assume the husband’s rightful role as well. There was no instance when a wife’s working was considered cause enough for divorce but many women used a description of the hardship involved to prove the marriage’s failure.
“Third, adultery.” Instances in which the charge of adultery was part of the divorce proceedings were present in 17.5 percent of the cases and was the only cause cited in eight.[13] Just as the proof of abandonment was the most certain and quick path to a successful divorce for women, men found that proof of adultery brought the same sure and rapid decision. During the early years as a roistering cattle town, the charge was
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more frequently used by men than in the 1890s, and the husband’s credibility was more likely to be accepted, as it was for Israel La Montaine when he declared his wife was “practicing the nefarious business of a whore” (142), 1Thomas Cooper who reported that his wife “for over one year last past [was] a common Harlot [in a Dodge City brothel] committing adultery with many persons at diverse times”(l61), and Daniel Knox who reported his wife to be a “notorious prostitute in one of the Dance Halls” (166). Such cases took little of the court’s time.
Adultery, however, was usually committed in less public places and, consequently, the charges carried greater detail as to where, when, and with whom (86, 113, 189, 225, 3089). Proof was more difficult to obtain but depositions from neighbors or the adulterer’s partner apparently were not difficult to secure, and in those instances where the defendant did not appear before the court, the statements of the plaintiff alone were accepted as proof. One long-suffering husband was required to present nothing more than his statement that he had not seen his wife for “four years preceding the birth of a child,” thus neatly tying abandonment with adultery (197).
Wives did not charge adultery as often as men and in only one case was it the only cause a woman cited–even then the petitioner noted that because of her husband’s actions he had given her a “loathsome disease” (968). Most named names, dates, and places and the most distressing petitions were those in which the episodes occurred in the plaintiffs’ homes (43, 211, 968, 3722). When the cause was a major contention, the court rarely failed to grant the wife a divorce or to restore her maiden name and custody of children.
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Falsely charging a wife with adultery was considered by society as particularly degrading and to the courts the worst form of mental cruelty, which could destroy health as surely as any physical disease.[14] Victorian concept of the “true woman” placed high value on married virtue, and for a man to impugn his wife’s character falsely was particularly damning. A Texas judge stated: “Of all the treasures cherished by a woman, her reputation for chastity is the dearest. ‘It is the immediate jewel of her soul’; and when an attempt is made by her husband, who should be her protector, to rob her of it; cruelty has reached its utmost limit.'[15] By further implication, a woman wrongly accused might be placed in harm’s way since lustful men might be encouraged to act on the allegation, and, on a more prosaic level, the woman in question and those associated with her could suffer financial loss because respectable people would not tolerate them. Jobs could be lost and other economic opportunities denied. All of these possibilities were aired in the Dodge City court.
Sultina J. Averill alleged that the false accusations of adultery made by her husband were designed to force her to leave the community so that he could control their lands and lumber yard (3375). In a cross petition Emma Alter claimed her husband, “a stingy and miserly” man, had bribed her own brother to spy on her and then falsely accused her of being an adulteress in order to defraud her of her property by forcing her to return to Ohio (3756). On a number of occasions the husband’s false charges included incest which was judged to be even more cruel by the courts. Jennie M. Zwich’s account of her husband’s false charge that she had had sexual intercourse with her father was deemed to constitute both physical and mental cruelty since both she and her father
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suffered public shame, disgrace, and physical collapse. Amanda Adams was also able to free herself from such a charge by proving she had left her husband only temporarily to aid a sister. She had intended to return and was never involved with any other man (2843). The court awarded the divorce to her along with custody of the children and the requirement that her husband pay court costs and the legal fee of $10.00 (2843). When William Ingram presented a counter petition reiterating his charges of unfaithfulness after his wife had condemned his false accusations, the court supported her description of his “insane jealousy” and awarded her a substantial property settlement (3543). Adultery was a charge that could easily backfire without ample proof and even then the court’s reaction was uncertain. One judge found the provable charge of “a dissolute character” of a wife keeping a bawdy house in Wichita no cause for divorce because the husband “knew the woman’s character when he married her” (3827). A local newspaper, in one of its rare comments on divorce proceedings, praised the judge’s action as an endorsement of “the sanctity of the marriage vows.”[16]
With that strange double standard of the time, divorce litigation was rarely discussed in the newspapers beyond the listing of the case. Editor Nicholas B. Klaine of the Dodge City Times admitted that his paper avoided reporting on trials that had too many “racy features” because a “moral paper” ought not “shock the readers with details.”[17] Such sensitivity, however, was not shown in other instances when the peccadilloes and high life of Front Street were reported. Society appeared to condone the necessity of divorce, but regretted the unpleasantness of sexually explicit discussion in public of what people already were gossiping about. Preservation of the
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untarnished, morally superior wife in the home was the very foundation of the Victorian social order and the less reported officially to besmirch the image the better.
“Fourth, impotency.” There is no instance of this condition used as even a minor cause by a plaintiff. In spite of the blatant display of advertisements in the paper for nostrums designed to cure the condition, leading a reader to speculate that impotency had reached epidemic proportions, attorneys and their clients found it of little use as a cause for divorce.
“Fifth, when wife, at the time of marriage, was pregnant by another than her husband.” This was one of the rarely used statutory causes for divorce. Mattie Stein in her petition admitted to being pregnant at the time of marriage but condemned her husband for making a false charge that the child was “a bastard child” which caused her “great mental agony and distress.” She also added adultery to the charge (3744). Bertha E. Butts provided an interesting twist in admitting she was pregnant at the time of her marriage. Since she was under age of lawful consent, her husband married her to “escape criminal prosecution” and had reviled her, calling her a “G– D– D– D– whore,” which caused “great mental and physical suffering” and a miscarriage (3524). Without a confession from the wife, prior pregnancy by another man was hard to prove and attorneys aparently advised using other more common grounds for action.
“Sixth, extreme cruelty.” Next to abandonment, cruel or abusive behavior was the most common cause appearing in women’s petitions. It was at least one of the causes cited in sixty-one cases and the sole cause in eight. Most descriptions of a husband’s cruelty were straightforward enough: the husband choked, struck, kicked; beat with
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fists, sticks, clubs, or other handy household articles; and threatened murder, occasionally with gun in hand. With the changes by mid-century of society’s understanding of family and gender roles, duties, and acceptable behavior, women’s charge of mental cruelty gained a more sympathetic hearing in the courts.
The “true woman,” it was believed, ought not be subjected to brutish behavior, excessive or aberrant sexual demands, indecent language, ridicule before strangers, or other action that might trigger nervous disorders. Women’s reaction to such stressful conditions were lumped under the medical term neurasthenia which had by 1890 become “a part of the modern medical landscape.” Although an ill-defined ailment, associated particularly with middle-class women in modern, urbanized settings, it was considered physically debilitating, and if unchecked, deadly. Nervous exhaustion from whatever cause was understood to have the power to destroy health and in effect become a physical disorder. The courts in Dodge City reflected this changed understanding and women as plaintiffs increasingly included mental cruelty in their petitions. In describing the effect of such behavior, women and, on rare occasions, men, used such terms as “causing…great mental agony” (3744), “great mental pain” (3732), “mental distress before friends” (3722), and “suffering nervous prostrations” (3797).[18] Vile and abusive language was particularly noted as a nerve-shattering offense. Victoria Mills charged her husband with “never having a kind word” for her and said he often called her vile names such as “damned bitch” (3711).[19] Edward R. Steward brought similar charges against his wife who called him vile names, hit him with an iron rasp, and threatened him with “a 40-4 revolver” (3730).
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The Kansas Supreme Court in 1883 (Carpenter v. Carpenter), reversed the previous court’s position that specific proof had to be presented to show claimed mental cruelty had caused physical suffering, and the use of the term in divorce petitions increased. [20] Justice Daniel N. Valentine criticized older Interpretations that had “taken too low and sensual a view of marriage relations,” and he called for courts to move to “a higher plane, and to consider it [marriage] as a mental and spiritual relationship, as well as physical relations.” His response paralleled society’s demand that men ought to be aware of women’s keener domestic, religious, and moral position and treat wives accordingly. Extreme cruelty, whether physical or mental, had reached the front line attack in most women’s petitions by 1900. Men, too, apparently on the assumption of the old adage that what is good for the goose is good for the gander, sometimes included the charge in their petitions, as did Charles L. Clemons who “suffered great mental anguish…which affected him mentally and physically” (3182, see also 3422). Abandonment, adultery, drunkenness, and failure to peform [sic] the duties of a spouse were all coupled with accusations of extreme mental cruelty and generally were met by a sympathetic court.
“Seventh, fraudulent contract.” Another of the rarely used causes for granting a divorce. There was only one clear use of the seventh cause. Mattie Hoard claimed that she had been “induced to enter into marriage by reason of fraud” when her husband concealed from her how many children (six) he still had from his first marriage (3611). Helen Hubbell told the court that her husband had claimed before their marriage that he owned a business but he did not, and she had been forced to work as a servant to survive. However, she did not rely on this circumstance as a major contention in her case, but,
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like most others, fell back on “mental distress…gross neglect of duty; [and] extreme cruelty.” (3710) Lavina Shortride, who was barely sixteen when she married Ira, age forty-four, might have pled a flawed marriage contract when, shortly after their wedding, he brought what he claimed was his own illegitimate child into the house, but she also called on the same old reliables that Helen Hubbell had listed (3722). The seventh cause was largely ignored because of other clearer, more useful grounds.
“Eighth, habitual drunkenness.” Instances of liquor and habitual drug use was frequently cited by petitioners but, as in other allowable causes, was rarely used as the only cause for the suit. The emotional response stirred by the temperance movement made drunkenness a statutory cause for divorce in Maine in 1838. In Dodge, an open-saloon town long after Kansas was legally dry, a person being at “divers times…under the influence of liquor” was used in a successful petition for divorce as early as 1875 (34). In most courts habitual drunkenness was seen as a clear threat to the wife’s moral guardianship, a corruption of family values, and an abasement of marriage roles.[21] Henrietta Collins reported her husband came home “on divers times” drunk, “misused and abused” her but she did not charge habitual drunkenness, using his drinking as only an example of his failure to conform to the acceptable role of husband (34). Others did use the term habitual to describe an intolerable condition. The use of drugs, particularly morphine, was cited in a number of cases as the reason for the dissolution of the marriage. In one of the most shocking cases, Carrie DeVoe Wright, after barely a year of marriage, petitioned the court for divorce on many grounds but included the charge that Robert M. Wright was “a habitual user of drugs, such as morphine, bromidia and chloral”
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(3702). Since Wright was the foremost citizen of the town, the outcome of the trial must have been sensational, but no mention of the nature of the trial appeared in the newspaper, and the judge, in explaining his decision in favor of the plaintiff, alluded only to adultery and neglect of duty.
“Ninth, gross neglect of duty.” This rather nebulous and undefined phrase was cited as cause in fifty-seven cases. If the term on the surface appears to lack clear definition, society had worked out the general limits of the duties for husband and wife by 1875. Philosophically, the line was so clearly drawn that women were said to occupy a “separate sphere.” Actual day-to-day living was less separated than the ideal would suggest; still, the domestic model was clear enough so that husbands and wives brought suit defending the accepted domestic standards. Because the home was considered the very foundation of the Victorian social order, its preservation was assumed to have paramount importance.[22] Courts, even in dusty cattle towns, took seriously the obligation of maintaining the institutional family, a task which recognized the powerful ideological prescriptions of roles and duties.
The importance of establishing that the plaintiff was well aware that both partners in a marriage held obligations that, if broken, would result in dissolution of marriage, can be noted in the standard form of the plaintiff’s petition. The petition began by stating the fact of a marriage and proof of residence within the court’s jurisdiction, followed immediately by a declaration that the plaintiff had fulfilled the proper duties of the union, using such expressions as “performed all and singular duties… as a faithful, obedient and loving wife” (99) or a “dutiful, good and loyal husband” (87).
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These validations of the right to contest the marriage were in turn followed by a listing of specific causes for the action. If a counter suit was filed, the same pattern of professing adherence to proper role and contradicting the previous charges of not fulfilling the proper role were stated. The cause or causes had to be of such severity that, as Arilla Steel said of her union, the marriage was ‘Just the opposite of what law and society created it for” (3089), and thus must be abolished.
The details of neglect were usually presented to the court in the individual’s own words rather than some formalized phrase supplied by an attorney. Women were charged with neglecting the duties of motherhood: “a wicked and corrupt woman…unfit to have care…of young children” (3089), “the child [was] running around the streets” unattended (87); of being extravagant or foolish in the use of money and always “after him” with “demands for large sums of money” (3280, 3523); of refusing to do the normal housewifely tasks of cooking, cleaning, and sewing because she was “away gadding around town” (3797); of persisting in “sexual denial…for more than three months refused to have sexual intercourse” (3280); and of failing to provide a supportive, warm, and caring relationship by being “neglectful, cold, cross, unkind and cruel” (2843). Men were charged with being “cross, irritable, cursed and swore” (2395); of failing to provide the necessities of life when he “refused to pay any debts contracted for necessaries, [and] warns merchants not to [give me] credit” (3702); of demanding excessive and “beastly” sexual conduct when the wife was “forced to submit to intercourse 2 or 3 times a day” (3747); and refusing to provide protection when “he hired witnesses to swear against her and ruin her reputation” (3702).
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Gross neglect proved to be a bottomless pit of complaints. When combined with other causes a dreary picture of domestic quarrels, battles, and hatred emerges. Obviously, both male and female egos suffered in telling of their inability to achieve the idealized harmony the Victorian family model required, but by the time events had forced a public dissolution, battered egos had long since suffered irreparable damage and individuals had braced themselves for unpleasant social reaction.
“Tenth, the conviction of a felony and imprisonment in the penitentiary therefore subsequent to the marriage.” Another rarely used cause. No recorded instance in the Dodge City court.
Mary Sawyer’s venture into legal depths pitted her against a man with considerable property who hired the town’s three leading attorneys to defend his interests.[23] Her attorney, Harry Gryden, was known as the champion of the underdog, and made certain that due process was observed. Summonses were delivered, depositions taken, and testimony examined and cross-examined. When she failed to secure what she considered a just alimony, the case was reviewed a year later. As plaintiff, she was finally granted a divorce, custody of her child, and a small, lump-sum alimony. Justice? Perhaps not pristine, but in light of the parochial nature of the court and the local resources marshalled against the petition, Mary Sawyer’s mild victory appears remarkable.
The protection extended to Mary Sawyer and other female petitioners by a male judge in a clearly male-dominated society priding itself on being freer, and less regimented than Eastern settled communities reflects an enlightened and perhaps unexpectedly advanced perception of individual rights. However, the very nature of local judicial
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proceedings was not a restricting, but rather a liberalizing influence in interpreting the state’s bare-bones provisions for divorce. When all the cases in the Dodge City court are reviewed the trend toward expanding rights and duties of all members of a family is apparent. Even more remarkable, the judges assumed an almost unlimited patriarchal control of family relationships once they came under the court’s authority. Nor was this trend limited to western frontier communities. As Professor Michael Grossberg observed, “Most of the acts filling the [national] codebooks relied far more on judicial discretion than state regulation to govern the family.”[24]
Throughout the Victorian period, there were those who saw grave danger to family stability in the growing authority of local courts. “We do not recognize the Family at all in our National Constitution,” lamented Reverend Samual Dike, a leading advocate of uniform divorce codes. “We are purely individualistic…. The perils of democracy in the domestic institutions are part of the price we pay for our political system.”[25] In the matter of Sawyer v. Sawyer and other contested marriages, the persistent localism that resisted national codes was changing the conception of the family. Husbands retained the greater share of assets, probably because in their role as family providers they had managed and controlled the various holdings.[26] The male domination of local courts may have affected these financial decisions. Male judges seemed far more interested in seeing women removed from unfortunate, unsuccessful, and unacceptable marriages than in punishing husbands through material awards to the freed spouse. Preserving Victorian roles of husband and wife apparently weighed heavily in judicial decisions.
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As has been noted elsewhere: “The law of any community comes to represent just about what society considers convenient, proper, or profitable at the moment.”[27] For Dodge Citians, the liberalizing pressures of societal conscience regarding gender roles and responsibilities had brought new changes and protections to the individual members of a family. What evolved from the piece-meal decisions of local courts that gave an attentive ear to grassroots expressions of values and familial duties, was the creation of the family as a collection of distinct legal personalities, including women and children, with enhanced rights as well as responsibilities.
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Appendix
Mary Sawyer might have reasonably assumed that she could find grounds for escaping her miserable lot in one or more of the ten causes for divorce prescribed by the state’s constitution. And she might have been more willing to turn to the courts if she had known that a child’s welfare would be a serious concern of the court, and, furthermore, that she had an excellent chance of receiving custody of her child. Nationally, women were granted custody three times as often as the husband, and in Dodge City the chances were even greater. Generally, the judges seemed satisfied that the child’s future was secure when placed in the custody of the more stable of the marriage partners, not infrequently with some child support included. Husbands were required in a number of instances to make monthly payments of fairly significant sums, $10 or $15 a month, usually with a time or amount limitation (3318). On rare occasions both parents were involved in the child’s future through visitation rights and other arrangements (3616, 3626, 3374). Occasionally, elaborate instructions were given for the care and education of a dependent child, as it was in the case of the infant son of Clara C. and Theodore Von Burgh. In that instance, guardianship was equally divided through six months stay with each parent until the child was of an age to choose one or the other parent, or until one parent remarried when all rights to “Companionship and Guardianship” would be forfeited. Detailed provisions provided that he was not to be sent “to any school, academy, or institution of learning, under the Auspices of any religious denomination or
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where he would be so trained” (2643). In a few cases, the child custody and education was given to a third party when both parents were considered unfit (3525).
By 1900 the status of child custody decisions in the district court was consistent with Professor Michael Grossberg’s summary of the situation in general throughout the United States:
American custody law over the course of the nineteenth century thus had rearranged spousal rights. Mothers gained new powers as custody and guardianship rights became part of the new legal domain of married women. Through the best-interest- of-the-child doctrine and its offshoots, women won the right to go to court, fight for, and often obtain their children. The attorney Charles Savage took note of the trend in the 1883 American Law Register when he postulated that in all areas of the law, “the irresistible movement is in the direction of the most perfect legal equality of the married partners, consistent with family unity.” The caveat, how-ever, hinted at boundaries of the newly constructed maternal legal sphere.[28]
As for the wife’s welfare, the courts also made alimony and property settlements. Alimony was not requested in most cases, and, when granted, payments were generally limited to $10 or $20 a month, or to a lump sum of $200 to $300. Considering that day laborers averaged around $35 per month, the amounts were substantial enough to at least provide for the child’s well being until the mother could become established in a job or other living arrangement. Frequently more affluent clients were required to make more substantial single payments (806, 3281). A case in point was Carrie Rath’s divorce from
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Charles Rath, reputedly Dodge’s wealthiest entrepreneur. Charles Rath initiated the suit, paid Carrie $4,500 at the time the petition was drawn, and was directed to pay $2,500 more when the divorce was granted, as well as $35 a month child support until the child reached age fifteen (1064).
When property was involved, judges usually provided for distribution of land, lots, and goods. In cases involving homesteaders who could show that the family’s property was the result of joint effort, provisions were made for the wife and husband each to receive some land, livestock, and household furnishings. Sultina Averill received $240 “permanent alimony” and a quarter section of land (3375). Carrie Philips was awarded thirty head of cattle and two horses (807), and Ernestina Wilson, a town wife, received $750 and three lots (3749).
The financial settlements that stirred the greatest bitterness did not favor women to the extent shown· in the granting of divorces and custody of children. Still, wives were not always left destitute or on their own resources if there was property to be claimed.
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NOTES
- Sawyer v. Sawyer, Ford County District Court Cases, Civil Case No. 86, Ms. Box 806, Kansas State Historical Society
- By 1900, the United States had the second highest divorce rate in the world. Department of Commerce and Bureau of the Census, Special Reports: Marriage and Divorce, 1867-1906 (Washington, D.C., Government Printing Office, 1909) I, pp. 11, 26-27, 64-67; Roderick Phillips, Putting Asunder: A History of Divorce in Western Society (Cambridge: Cambridge University Press, 1988), p. 462.
- Dodge Citians were aware of the trend and many regarded it as unfortunate. Nicholas Klaine noted the growth in the Dodge City Times: “Married unhappiness in Kansas is sooner gotten rid of than elsewhere, as there are more divorces according to the population than in any other state in the union.” Another editor praised a judge who refused to grant a divorce and added “if courts would show less partiality…perhaps there would be less divorce cases. There might be fever incompatible marriages.” Dodge City Times, August 29.
- Statutes of the Territory of Kansas, 1855, p. 310.
- Compiled Laws of Kansas, 1876-1901. See for example the 1885 statute, p. 757.
- The total number of cases as is true of other statistical figures in this study, is not complete. Extant records of the District Court for the years under discussion are in some disarray and by no means complete. The number 224 represents all cases available, even partially noted in case files, appearance dockets, judges’ journals, and newspapers.
- Robert L. Griswold, “Anglo Women and Domestic Ideology in the American West in the Nineteenth and Early Twentieth Century,” in Lillian Schlissel,
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Vicki L. Ruiz, and Janice Monk, eds., Western Women: Their Land, Their Lives (Albuquerque: University of New Mexico Press, 1988), p. 22. This data needs the added explanation that cases dismissed, continued, or terminated for other reasons were usually those initiated by women (76.5 women; 23.5 men). About one of every ten cases was dropped, dismissed, or continued without resolution. An interesting study would be to attempt to discern why women’s cases fell into this category more often than men’s.
- Carl N. Degler, At Odds: Women and the Family in America from the Revolution to the Present (Oxford: Oxford University Press, 1981), pp. 167-68. Harvey Green, The Light of the Home: An Intimate View of Women in Victorian America (New York: Random House, 1946), p. 21.
- Wichita Beacon, April 12, 1876.
- Phillips, Putting Asunder, p. 404.
- Bureau of Census, Marriage and Divorce, p. 169.
- The court granted Ella Sherwood not only the divorce but a $1,000 single alimony payment and eventually garnisheed his Atchison, Topeka, and Santa Fe wages to pay court costs.
- The pattern for the rest of the United States during the 1867-1886 period was not quite so clear with 38,184 husbands charging adultery while 29,502 wives made the same complaint. In Kansas the pattern gave a better than two to one edge for husbands making the charge. Bureau of Census, Marriage and
Divorce, p. 169. - See Robert L. Griswold, “Law, Sex, and Divorce in Victorian America, 1840-1900,” American Quarterly, Winter 1986, pp. 721-45.
- Jones v. Jones, 60 Texas Reports,1883, p. 460.
- Dodge City Globe-Republican, June 7, 1900.
- Dodge City Times, July 5, 1879.
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- For a discussion of the malady see Robert L. Griswold, “The Evolution of the Doctrine of Mental Cruelty in Victorian Divorce, 1890-1900,” Journal of Social History, Fall 1986, pp. 132-36.
- Instances of both men and women petitioners indicating vile, profane, and name-calling language as evidence of the breakdown of the marriage was frequent and appears to represent a conviction that the roles of both spouses required civility and respect. A certain sign that the relationship had been
irreparably lost was indicated in offensive language. - 30 Kansas Reports, 1883, p. 744.
- Phillips, Putting Asunder, pp. 497-98.
- Griswold, “Anglo Women and Domestic Ideology,” p. 26.
- Divorce cases could be quite complicated, involving considerable litigation, especially if there were large sums of money and property in conflict. When Arabella Sheperd sued Elmer P., the case dragged on for eight months, and included consideration of change of venue, counter petition, orders to the district court clerk to direct the sheriff to sell property, eighteen depositions (one of which ran to twelve legal-size pages), and a surviving file two-inches thick containing sixty-three items (2395).
- Grossberg, Governing the Hearth, p. 281.
- Michael Grossberg, Governing the Hearth: Law and the Family in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1985), p. 303.
- Quoted in ibid., p. 305.
- In at least one instance the husband was given the option of purchasing property awarded the wife (3490).
- C. Robert Haywood, Cowtown Lawyers: Dodge City and Its Attorneys, 1876-1886 (Norman: University of Oklahoma Press, 1988), p. 240.
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