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.
ABRAHAM LINCOLN,
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
32 February 1999 Illinois Issues
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.
