Desertion and divorce in the law books
You can never tell what stories you might stumble across in the law books.
Yeah, yeah, The Legal Genealogist knows you’ve heard this before, but it really is amazing what you might run into just poking around in the law books.
Case in point: the private law passed by the Kansas Territorial Legislature that became law on 11 February 1859 entitled “AN ACT Divorcing Lorenzo Hoyt and Sarah E. Hoyt.”1
Now there’s nothing unusual about a legislature granting a divorce at that time. Many divorces were granted by legislatures in early America, and that power wasn’t shifted to the courts until well into the 19th century.2 It wasn’t until 1886 that the territorial legislatures were stripped of their power to grant divorces, with that authority transferred to the courts.3
What is unusual is one part of that statute, passed a time when the law generally gave fathers total rights to custody of their children. Read Section 2 of that divorce law again. It provided:
That the said Sarah E. Hoyt is hereby made the guardian of the minor children of the said parties, to the entire exclusion of the said Lorenzo Hoyt.4
Offhand, that sounds pretty much like Lorenzo Hoyt was … um … not exactly well-regarded by the Kansas Territorial Legislature in 1859.
For that I had to do a bit of hunting… and oh, my… what a story these private laws can tell.
You see, the admission of Kansas to the Union was preceded by a period of unrest between pro- and anti-slavery factions that came to be known as Bleeding Kansas.5 Twice, in 1857 and again in 1859, the Kansas Territorial government sent reports to Congress asking that citizens be compensated for property losses incurred during the unrest.6
One of those claims was submitted by Lorenzo Hoyt. He said that he:
… was on the 21st day of May, 1856, and for some time before had been a citizen of Kansas Territory, and residing in Lawrence, in Douglass county therein ; that he was then the head of a family, and resided in his own house with his family on said 21st day of May ; that on said 21st day of May his said dwelling house, situated in said Lawrence, was broken open and ransacked, and the principal contents thereof of personal property was plundered, carried away, or destroyed by a collection of armed men …7
Only one problem.
Another one of those claims was submitted by Sarah Hoyt. And she said that she:
was on the 21st day of May, A. D. 1856, and for some time before had been, a citizen of Kansas Territory, and residing in Lawrence, in Douglas county therein ; that she was then the head of a family, (having been deserted by her husband, one Lorenzo Hoyt, …) and resided in her own house, with her family, on the said twenty-first day of May, and that her said family consisted at that time of five children ; that on the said twenty-first day of May her said dwelling-house, situated in said town of Lawrence, was broken open and ransacked, and the principal con tents thereof of personal property were plundered, carried away, or destroyed by a collection of armed men…10
And, she went on to explain:
… on the said 21st day of May she was deserted by her said husband, and had been for the period of one year prior to that time, and that she was doing business upon her sole and separate accounts on the said 21st day of May, and had been for one year prior to that time, and that the said articles hereinbefore mentioned belonged wholly to the petitioner, and that the said Lorenzo Hoyt had no legal or equitable right to them or any part thereof. And this petitioner further avers that the said Lorenzo Hoyt has been a common drunkard for the period of twenty-five years last passed, and for twenty-three years prior to the 21st day of May aforesaid, and that the entire duty, labor, and expense of raising her family, … has devolved upon her.11
And so, she said, anything awarded to Lorenzo should be disallowed and instead awarded to her.12
Now the bottom line is not the claims themselves. In fact, nobody got any money here; Congress never awarded a penny to the claimants from either 1857 or 1859.13 But look at the wealth of information set out:
• Turner Sampson, a boarder in the boarding house, said Sarah had been deserted by Lorenzo, that “all of nearly all of the property that she had … had been obtained by her individual exertion and credit” and that she “had a family of five children.”14
• Sheldon C. Russell said it was “within the personal knowledge of this deponent that the said petitioner obtained the property in her possession at that time by her own skill and labor.”15
• Sarah’s and Lorenzo’s son Charles, then “between 17 and 18,” said he was living with his mother in Lawrence, that she was “keeping a boarding house” and the property “belonged to mother and her family.”16
• Lyman Allen said Sarah’s husband was “not here. She was called Widow Hoyt.”17
• George Ford said he’d been told by Lorenzo Hoyt in 1857 that he hadn’t seen his family for nearly two years.18
• Shuler W. Eldridge told the Kansas commissioner that Lorenzo and Sarah had worked for him in the spring of 1855 when Lorenzo deserted Sarah, “leaving her and her family at my house. I brought her here to Lawrence ; I boarded the family for her services ; she thought to do better by keeping a boarding-house, and I brought her here in the winter of 1855 and 1856. She had then no property at all, as far as I knew ; do not think she had any money ; on arrival here she was introduced by me, and through such introduction she obtained credit to get necessary means and conveniences for keeping a boarding house. She kept boarding house one or two years; made well by it, and supported her family ; clothed the children and sent them to school ; do not know of her receiving any assistance during that time from her husband; understood he was dissipating in St. Louis.”19
So… The divorce itself was a Kansas Territory private law. And the reasons why the Legislature gave the kids to Sarah “to the entire exclusion of the said Lorenzo”… well, you can find those in the claims to Congress, part of the process of asking for a federal private law.
See what I mean? You never know what stories you’re going to find in the law books.
- “AN ACT Divorcing Lorenzo Hoyt and Sarah E. Hoyt,” Chapter 31 in Private Laws of the Territory of Kansas… 1859… (Lawrence, K.T. : By Authority, 1859), 35; digital images, Google Books (http://books.google.com : accessed 1 Oct 2018). ↩
- See generally Joel Prentiss Bishop, Commentaries on the Law of Marriage and Divorce (Boston: Little Brown & Co., 1881), §§ 661-664 at I: 491-494; digital images, Google Books (http://books.google.com : accessed 1 Oct 2018). ↩
- See generally “Legislative Divorces,” part of Chapter 2 in Carroll D. Wright, Commissioner of Labor, A Report on Marriage and Divorce in the United States: 1867 to 1886 (Washington, D.C. : Govt. Printing Office, 1889), 78-79; digital images, Google Books (http://books.google.com : accessed 1 Oct 2018). ↩
- §2, “AN ACT Divorcing Lorenzo Hoyt and Sarah E. Hoyt,” Chapter 31 in Private Laws of the Territory of Kansas… 1859…, 35 (emphasis added). ↩
- See “Bleeding Kansas,” Kansapedia, Kansas Historical Society (https://www.kshs.org/kansapedia/ : accessed 1 Oct 2018). ↩
- See “Claims of the Citizens of the Territory of Kansas,” H.R. Misc. Doc. No. 43, 35th Congress, 2d Session, in Miscellaneous Documents of the House of Representatives, 1858-59 (Washington, D.C. : James B. Steedman, 1859), vol. 2; digital images, Google Books (http://books.google.com : accessed 1 Oct 2018). ↩
- Ibid., Claim No. 58, at 100-101. ↩
- Ibid., at 101-102. ↩
- Ibid., at 103. ↩
- Claim No. 1, H.R. Rep. No. 104, 36th Congress, 2d Session, in Reports of Committees of the House of the Representatives… 1860-’61 (Washington, D.C.: Govt. Printing Office, 1861), 3: 124; digital images, Google Books (http://books.google.com : accessed 1 Oct 2018(emphasis added). ↩
- Ibid. at 3: 125-126. ↩
- Ibid. at 3: 126. ↩
- See M.H. Hoeflich and William Skepnek, “Claims for Loss in Territorial Kansas,” 65 Kansas Law Review 711, 712 (2017). ↩
- Claim No. 1, H.R. Rep. No. 104, 36th Cong., 2d Sess., Reports of Committees of the House of the Representatives… 1860-’61, 3: 127. ↩
- Ibid. at 3: 128. ↩
- Ibid. at 3: 128-129. ↩
- Ibid. at 3: 130. ↩
- Ibid. ↩
- Ibid. at 3: 130-131. ↩