Stacy Pratt McDermott is a research associate with the Lincoln Legal Papers project, a joint effort of the University of Illinois at Springfield and the Illinois Historic Preservation Agency. The project's mission is to collect and present all documents related to nearly 5,000 Lincoln cases. In December of 1997, McDermott gave a paper titled "In Tender Consideration," Women and Divorce in Sangamon County Illinois, 1837-1860 at the Illinois History Symposium sponsored by the agency. She is currently writing a chapter for a book to be published by the University of Illinois Press titled "In Tender Consideration": Women, Families and the Law in Abraham Lincoln's Illinois.
DIVORCE ATTORNEY AT LAW
A historical researcher uses the Lincoln Legal Papers to assess attitudes toward family law on the Illinois frontier. And she found that Lincoln was apragmatist trying to make a living
by Stacy Pratt McDermott
Mary and Martin Beard were married in October 1851. After enduring repeated beatings from her husband, and witnessing his abuse of their 6-week-old son, she left him and filed for divorce in McLean County Circuit Court on the grounds of cruelty. Martin denied his wife's allegations, and the court moved the trial to Champaign, where Mary retained Abraham Lincoln as her attorney.
After hearing the evidence in the 1853 trial, a jury found Martin guilty of the abuse, granted Mary the divorce and gave her custody of the couple's young child.
Abraham Lincoln a divorce lawyer?
Yes. In fact, Lincoln's Illinois gave women greater access to divorce than their counterparts almost anywhere else in the United States. The Illinois legislature had given them the right to divorce earlier than other states, guaranteeing it in the state's first Constitution in 1818. Illinois judges not only granted divorces, they awarded women custody of their children. And Illinois women seeking to end unhappy marriages took advantage of these available legal avenues.
In that context, Mary Beard's case was not unusual. Contrary to perception, divorce cases were not uncommon in Lincoln's time and Lincoln did not shy from handling them. Lincoln and his three law partners certainly saw their share of marital difficulties and family problems in representing more than 120 litigants in divorce cases throughout his nearly 25-year law practice. The Beards were only two of a growing number of people who were divorced in antebellum Illinois. Lincoln, as a respected man and adept lawyer, was a popular choice as counsel in legal issues regarding families, including the increasingly viable option of divorce.
The Plunketts are another case in point. After five years of marriage, Robert Plunkett retained Lincoln and his junior partner, William H. Herndon, in 1850 and filed for divorce from Ann Plunkett on the grounds of desertion. Ann then filed a crossbill for divorce against him. She alleged that Robert had married her because he thought she had a lot of money and deserted her when he discovered it wasn't as much as he had anticipated. She also accused him of adultery with the housekeeper. The court found Robert guilty of the charges, granted Ann the divorce and awarded her $100 in alimony After the judgment, Ann agreed to give up the alimony settlement if Robert agreed to relinquish all interest in the property Ann had brought to the marriage.
Had the Plunketts resided in a southern state such as South Carolina, where there was no provision for divorce until 1865, they would have had to continue the difficult union or choose to separate without the benefit of a legal dissolution of the marriage. Without a legal separation through an
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action of divorce, they would have been unable to legally remarry.
During the mid-1800s, family law was becoming a larger part of Illinois' circuit court dockets. Between 1836 and 1860, for example, 219 divorce cases appeared on the Sangamon County Circuit Court docket alone. Cases dealing with inheritance, dower, and child custody and maintenance were common. A growing number of women, children and families came through the court system, and Lincoln's law practice reflected that trend. Although Lincoln handled his share of sophisticated railroad cases, complicated tax cases and sexy murder cases, issues regarding families were the bread and butter of his legal practice. Within that context, divorce cases were, even for Lincoln, fairly ordinary.
A divorce was fairly simple to getin Illinois. Statutes allowed full divorce with the right to remarry and, by 1845, provided for divorce on the grounds of desertion, adultery, habitual drunkenness, repeated cruelty, impotence, bigamy and felony conviction. Plaintiffs in divorce cases simply had to file in the county circuit court of their residence, prove their spouses were guilty of one of the grounds cited in the statutes and pay court costs.
The legal structure of divorce and the dispositions of divorce cases is readily quantifiable, yet Lincoln left us few clues about his personal opinion on the subject.
Many years after Lincoln's death, Herndon wrote that Lincoln hated the business of divorce and viewed it as a necessary evil. Lincoln's personal views did not, however, change his commitment to clients who were seeking divorce. He maintained his role as advocate for whichever client walked through the office door and paid his fee.
Lincoln was a pragmatist trying to make a living, and it is difficult to extrapolate his personal feelings about divorce based on the nature of the divorce cases he handled. The dry, formulaic pleading documents filed in individual cases are unrevealing. However, looking across the case documentation, a vague sense of Lincoln's perspective on women emerges.
Let's take the case of Samuel and Polly Rogers. Samuel complained that Polly deserted him and that she was guilty of adultery. He retained the law partnership of John T Stuart and Abraham Lincoln in August 1838. Lincoln convinced his client that desertion was sufficient grounds for divorce and recommended the allegation of adultery against his wife be "muted ... through tender consideration to the said defendant's character." Lincoln was, in effect, sparing the defendant the embarrassment of the adultery allegation, but his decision was a legal blunder. For when the court granted the divorce, it ordered Samuel to pay Polly $1,000 in alimony, quite an exorbitant lump sum for the period.
In an attempt to reduce the alimony, Stuart and Lincoln filed an amended bill for divorce in which they added the adultery allegation. As well, Lincoln filed an affidavit attesting that his client had previously disclosed his wife's adultery. Upon reviewing the allegations against Polly, the court reduced the alimony to an initial payment of $ 126 and subsequent $39 biannual payments.
By rendering alimony settlements, even in cases in which the woman was at fault in the divorce, circuit courts throughout the state attempted to shelter women from the economic hardships often associated with divorce. Like Lincoln, who felt a paternalistic responsibility to protect Polly's reputation, the courts felt obligated to economically protect the "delicate sex" in divorce cases.
Alimony settlements were not uncommon. Although less frequent, and more poorly documented, child maintenance settlements were not either. Except in cases where the husband deserted the
Lincoln's Illinois gave women greater access to divorce than their counterparts almost anywhere else in the United States. And Illinois women seeking to end unhappy marriages took advantage of these available legal avenues.
family and his whereabouts were unknown, judges sought to evaluate the economic circumstances of female divorce litigants and render solutions to assist them.
While Lincoln may have been more respectful of women and more sympathetic to a woman's plight than many young attorneys on the circuit, most members of the bar, attorneys and judges alike, appreciated the potential economic difficulties divorced women faced. In 1827, the Illinois General Assembly had even included a provision that exempted poor women from paying the costs associated with divorce actions.
Lincoln's willingness to legally assist couples in bad marriages, despite his personal concerns about the issue, reflected society's changing attitudes about women's roles and the growing acceptance of divorce as a possible solution to some marital difficulties. Couples took advantage of Illinois' liberal attitude about divorce and filed for legal dissolutions of marriage. And Lincoln, perhaps shattering the age-old myth of the simple country lawyer fighting for justice, assisted them in that option.
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