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Thursday, May 15, 2003 02:20 pm

Houses divided

Abraham Lincoln, divorce lawyer

In 1838 Maria Goudy married George Chapman. Over the next 13 years they had five children. When Maria discovered George was unfaithful, she sued for divorce. George hired a lawyer and denied his wife's charges. But the court found him guilty, granting Maria the divorce and custody of their children. The judge ordered George to pay $19.90 in court costs.

Maria was represented by Abraham Lincoln. By today's standards he wasn't a divorce attorney--he didn't specialize in those cases, and he didn't actively pursue the business. His third law partner, William H. Herndon, would later write that Lincoln hated handling divorces. Yet during 25 years as a practicing lawyer, Lincoln personally worked on 115 divorce cases. He and his three partners--John Todd Stuart, Stephen T. Logan, and Herndon--handled 145 divorces between 1836 and '60. They had 88 in Sangamon County alone, 40 percent of the divorce cases before the circuit court at that time.

The fact that Lincoln and his partners handled such a high percentage of Sangamon County's divorce cases might suggest the firms were eager for the business. It might also indicate the great respect Lincoln commanded on a personal and professional level. Whatever the reason, Lincoln took so many divorce cases his contemporaries may have even considered him a divorce lawyer.

Divorce, Illinois-style

Back then, more women filed for divorce than men. Sixty-three percent of the cases handled by Lincoln's law firms had been initiated by women; 54 percent of their litigants were female. Desertion was the most common basis for divorce, cited in 46 percent of all petitions, followed by cruelty and drunkenness. Adultery was named by both male and female plaintiffs equally.

Statewide the divorce rate nearly doubled during Lincoln's time in practice, from an average of 2.10 divorce decrees per 10,000 people in the late 1830s and '40s to an average of 4.13 per 10,000 in the 1850s. That number slipped slightly in the 1860s, but Illinois remained ahead of the national rate, mostly because it was easier for women to obtain a divorce here. The Illinois legislature provided liberal access to divorce; though legal termination was far from the typical remedy for marital difficulties, by 1860 the state was leading the nation in granting divorces. Lincoln's practice reflected women's expanding legal options.

Illinois gave the circuit courts jurisdiction over divorces in 1819, while states like Maryland and Ohio only granted divorces by legislative act until the 1840s. Missouri dropped legislative divorce earlier than Illinois, but its courts granted a substantially lower percentage of divorce decrees from 1840 to 1860.

Though the majority of antebellum Americans continued to view marriage as a lifetime commitment, many people began to believe that divorce might be a necessity in certain circumstances. Connecticut led the way during the 1700s, but by the 19th century Illinois and Indiana were in the forefront of an "easy" divorce movement. During the period between 1776 and 1850, divorce rates were much higher in western states and territories than in the northeast and the south. Absolute divorce with the right to remarry, rare in the colonial period, continued to be uncommon or unavailable in some eastern and southern states throughout the antebellum period. The most extreme example was in South Carolina, where there was no provision for divorce until 1868. Even in states that allowed divorce, such as Massachusetts, the legal process was expensive. By comparison, Illinois' divorce statutes exempted women in dire economic circumstances from paying court costs.

At the time of statehood in 1818, Illinois law provided for divorce solely on the grounds of adultery, bigamy, or impotence. In 1824 legislators added willful desertion and, in 1827, fraud. Extreme and repeated cruelty or habitual drunkenness could be cited as cause if they occurred over a period of two years. Historically, petitioners could only cite cruelty in combination with another ground. Even given the two-year stipulation, the inclusion of cruelty as a viable, stand-alone basis for divorce placed Illinois ahead of most other states. Though the economic, social, and political nature of Illinois counties differed significantly, divorces were granted in courts throughout the state.

The Lincoln casebook

After 21 years of marriage, Catherine Hampton sued her husband, Samuel, for divorce, accusing him of drunkenness, desertion, and adultery. Her attorneys, the law firm of Stephen T. Logan and Abraham Lincoln, charged that Samuel Hampton had "failed to provide for [Catherine's] competent subsistence but wasted his means in drinking" and that he had abandoned her in 1840. At the time she filed for divorce, Catherine Hampton, who was then living with two grown sons, believed that Samuel Hampton was living with another woman to whom he professed to be married but legally was not.

Logan and Lincoln wisely included all of the grounds that applied to her case. The bill for divorce carefully focused on Samuel's guilt while declaring that Catherine "discharged all the duties of a wife whilst the said Samuel Hampton lived with her." They emphasized the innocence of the plaintiff as they established the guilt of the defendant. Assigning blame was necessary to meet the statutory requirements for a divorce, but proving innocence contributed to determining the amount of alimony and to the resolution of custody issues.

The Hampton case depicts the era's two options for dealing with marital difficulties. Samuel Hampton extricated himself from an unhappy marriage by physically leaving the household. Following his desertion, he entered into another relationship with a woman and was apparently content to go on with his life regardless of the perhaps bigamous situation. For him, legal separation was unnecessary. In contrast, Catherine Hampton used a suit for divorce to dissolve her relationship with her husband. For her, legal divorce was apparently necessary to sever all ties to her errant husband.

Rebecca Waddell also dealt with an unhappy marriage through extralegal means. In 1847, at the age of 17, she married 22-year-old Squire Waddell, a struggling farmer. They had two children over the next few years. In 1851, Squire Waddell left on a trip to California to seek his fortune. When he returned in September 1853, after an absence of at least a year, he discovered that Rebecca Waddell was involved in an affair with William Welles.

In 1853, Squire Waddell retained the law firm of Abraham Lincoln and William H. Herndon and filed for divorce. Rebecca Waddell failed to answer the charges of adultery. Numerous witnesses testified to her activities, and the court granted Squire Waddell a divorce and custody of the children. Rebecca then disappeared from Sangamon County, perhaps leaving with her lover. Squire remained, prospered as a farmer, and raised his and Rebecca's two children with his new wife. During his long absence, Squire Waddell claimed, he had left financial support for his family, but this support may have been insufficient. Perhaps loneliness motivated Rebecca Waddell to seek solace elsewhere. Many "49er widows" faced financial and emotional voids during their husbands' prolonged absences.

The Waddell divorce is a gender reversal of the Hampton case. Squire Waddell did not leave the marriage as Samuel Hampton had. Perhaps his interest in his children kept him from desertion, but certainly Rebecca Waddell's adultery gave him incentive to pursue a legal separation. Though it is possible that Squire Waddell forced his wife into a situation that led to her eventual abandonment of her own children, it appears from the evidence that she chose another man and willingly allowed the divorce, relinquishing her children.

Ideas about marital responsibility in antebellum America were not necessarily gender specific.

Separated but not equal

Societal and economic changes precipitated a lifting of past prohibitions on the public discourse of private matters and ushered in new attitudes and ideals. As couples began to view marriage within a romantic context, they felt more cheated by unhappy unions than the generations before them. That made divorce more attractive to people experiencing marital difficulties. During the 19th century familial relationships were becoming less patriarchal in nature. The meeting of equals fostered higher expectations, and more women and men who experienced unhappy marriages chose legal and extralegal separations.

Illinois women had a variety of reasons for pursuing divorce. Economic, social, religious, and personal considerations no doubt contributed to the way they coped with difficult marriages, but their gender did not necessarily dictate their courses of action. Social pressures were no longer enough to yield predictable choices. Once they decided to pursue divorces, women in Illinois experienced few legal problems in obtaining them. Few places in the country allowed women or men as many different reasons to end a marriage. Maria Chapman had benefited from liberal divorce provisions when she chose to leave her adulterous husband in 1851. While many still had to contend with the initial embarrassment and shame of divorce, the legal process was relatively simple.

In exercising their legal option to dissolve the bonds of matrimony, women accepted responsibility for themselves and their children. And, through petitioning the courts, Lincoln helped his clients to remove themselves from difficult marriages and assert their independence. This newfound option helped to change the roles and expectations of modern American women.


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