Plaintiff
Emeline Shaw
Defendant
Daniel T. Shaw
Plaintiff's Claim
That she be granted a divorce on the ground of intolerable cruelty.
Chief Lawyers for Plaintiff
Sedgwick, Seymour
Chief Defense Lawyers
Church, Hubbard
Justices for the Court
Joel Hinman, Henry Waite, Chief Justice Thomas S. Williams (writing for the court)
Justices Dissenting
Samuel Church (William L. Storrs did not participate)
Place
Litchfield, Connecticut
Date of Decision
June 1845
Decision
The court denied Shaw her divorce.
Significance
This case illustrates why divorces were so rare during most of American history. Patriarchal rights were a given, spousal rape was not considered bodily harm severe enough to constitute cruelty, and jealously was apparently justified in the eyes of the courts.
Divorce, until recently, has been rare in America. During the colonial period, anyone seeking a divorce had to produce written proof of the date of marriage and obtain signed petitions of support. In those days, the most frequent petitioners were abandoned wives. However, after the war for independence, many of the new states reformed their divorce laws, with women successfully suing for divorce as easily as men. In the South, however, courts rarely permitted divorce for any reason. Couples who wanted to separate had three options. The first was divorce a vinculo matrimonii, or absolute divorce, whichpermitted remarriage. Connecticut and Massachusetts granted this type of divorce and only for adultery, cruelty, and desertion. The second option was divorce a mensa et thoro, a permanent separation "from bed and board." This arrangement was more common, but did not permit either party to remarry. The third option was a private divorce in which couples simply lived apart.
Connecticut's divorce laws were more liberal than any other state except Massachusetts. In these two states--probably because of the influence of the Puritans who viewed marriage as a civil, not religious, ceremony--marriages weremore easily dissolved. Connecticut divorce degrees gave each party the legalstatus of unmarried persons. Therefore, divorced women could own and controlproperty, sue or be sued, engage in business, and participate in other activities denied to wives.
Sticks and Stones
In Connecticut, if a wife was in physical danger in her home, her husband hadto support her somewhere else. Cruelty was a major cause of legal separationand divorce. However, a woman had to fear injury or death to expect a courtto free her from the marriage. Shaw v. Shaw illustrates how narrowly the courts viewed cruelty even up to the mid-nineteenth century.
Emeline and Daniel Shaw married on 24 October 1841, and lived together until10 June 1844. On that day, Emeline left Daniel to live with her mother--and went to court for a divorce charging him with cruelty. At a hearing before Justice Joel Hinman at the February of 1845 term of the superior court in Litchfield, she claimed her husband often spoke to her in angry, abusive, and obscene language, even in front of her children (by a former husband). He called her names, such as "old hypocrite," and "ugly devil." He implied she was a slut and accused her of going to New York to have intercourse with other men.
Emeline testified that Daniel was unreasonably jealous of her, and would notallow her to visit her friends or family--particularly with her mother or his. On one occasion, when her mother-in-law had come to see the ailing Emeline,Daniel turned her away, forbidding her to come again. At another time, whenEmeline wanted to sleep overnight at her mother's house--her health being sopoor she could not have intercourse with Daniel--he tried to stop her by locking her door. She escaped out a window. In short, Daniel was intolerably cruel to Emeline.
Patriarchal Power
In February of 1845, after a preliminary hearing, the dispute went to Connecticut's Supreme Court of Errors.
Daniel's lawyers argued that he was not guilty of "intolerable cruelty" because these words meant "personal violence," resulting in extreme suffering or death--or, at least, endangering one's life or health. Daniel's actions were not "cruel" in either sense--certainly not extreme enough to allow for even adivorce a mensa et thoro. Finally, words, however abusive, are not legal cruelty. Daniel's violence did not endanger life, injure his wife, or disturb the peace. For such lesser cruelties, the remedy lay with the legislature, not the courts.
Emeline's lawyers argued that the supreme court should permit the Shaws to separate. By endangering his "blameless" wife's health, Daniel had forfeited his right to Emeline's company. Even though Daniel committed no bodily harm tohis wife, his behavior defeated "the great ends of marriage." Especially offensive was his insulting and obscene language in front of the children, the mental "torture" he inflicted upon her by denying her access to her friends andfamily, and his "barbarous and disgusting abuse of his marital rights" by rape.
For the court, Chief Justice Williams first asked what constituted intolerable cruelty:
The chief justice accepted Daniel's lawyers' argument that words, however abusive, did not amount to legal cruelty. He also agreed that Daniel's violencedid not endanger his wife's life, injure her, or disturb the peace. Rationalizing Daniel's abusive language, Williams said:
Refusing to let Emeline visit her own mother and relatives was "harsh, if notcruel," the court agreed. However, it upheld the rule of patriarchy, concluding:
Chief Justice Williams added that even unreasonable exercise of a husband's authority was not the kind of cruelty that would warrant a separation. He attributed Daniel's rape of his wife to his ignorance of Emeline's condition. Daniel did not know he was hurting her, and besides, she suffered no "real" harm. In conclusion, nothing the husband had done to the wife, rape included, wasunlawful:
Therefore, the court refused to allow Emeline either to divorce or separate from Daniel.
Shaw v. Shaw illustrates how supportive the courts were of the idea that the husband was the head of the house: The "husband must have the right tosay who shall be admitted to his house, and in some measure to regulate theintercourse of his wife." His rape of his wife, unlike today, was neither criminal nor cruel.
In 1978, only three states had laws that did not grant married men immunity from the rape of their wives. That year, the trial of Oregon v. Rideoutled many other states to abolish marital and cohabitation exemptions to rape.
Related Cases
Spousal Abuse
According to Daniel E. Koshland in Science, 29 percent of American women murdered in 1992 were killed by their husbands, former husbands, or "suitors." Koshland noted, "The type of person who is a batterer tends to become astalker after the breakup of the relationship, a situation in which the womanfrequently concludes (correctly) that her situation can become more perilousif she tries to leave."
Why do more women not take action in such situations? Koshland noted the prevalence of cultural norms which almost seem to mandate domestic violence by placing the wife in a subservient role to her husband. In addition, women who stay with abusers are often motivated by economic dependence and a desire to protect the home and the children--again, attitudes that arise from prevailingsocietal standards regarding gender roles.
Sources
Koshland, Daniel E. Jr. "The Spousal Abuse Problem." Science, 22 July1994.
Emeline Shaw
Defendant
Daniel T. Shaw
Plaintiff's Claim
That she be granted a divorce on the ground of intolerable cruelty.
Chief Lawyers for Plaintiff
Sedgwick, Seymour
Chief Defense Lawyers
Church, Hubbard
Justices for the Court
Joel Hinman, Henry Waite, Chief Justice Thomas S. Williams (writing for the court)
Justices Dissenting
Samuel Church (William L. Storrs did not participate)
Place
Litchfield, Connecticut
Date of Decision
June 1845
Decision
The court denied Shaw her divorce.
Significance
This case illustrates why divorces were so rare during most of American history. Patriarchal rights were a given, spousal rape was not considered bodily harm severe enough to constitute cruelty, and jealously was apparently justified in the eyes of the courts.
Divorce, until recently, has been rare in America. During the colonial period, anyone seeking a divorce had to produce written proof of the date of marriage and obtain signed petitions of support. In those days, the most frequent petitioners were abandoned wives. However, after the war for independence, many of the new states reformed their divorce laws, with women successfully suing for divorce as easily as men. In the South, however, courts rarely permitted divorce for any reason. Couples who wanted to separate had three options. The first was divorce a vinculo matrimonii, or absolute divorce, whichpermitted remarriage. Connecticut and Massachusetts granted this type of divorce and only for adultery, cruelty, and desertion. The second option was divorce a mensa et thoro, a permanent separation "from bed and board." This arrangement was more common, but did not permit either party to remarry. The third option was a private divorce in which couples simply lived apart.
Connecticut's divorce laws were more liberal than any other state except Massachusetts. In these two states--probably because of the influence of the Puritans who viewed marriage as a civil, not religious, ceremony--marriages weremore easily dissolved. Connecticut divorce degrees gave each party the legalstatus of unmarried persons. Therefore, divorced women could own and controlproperty, sue or be sued, engage in business, and participate in other activities denied to wives.
Sticks and Stones
In Connecticut, if a wife was in physical danger in her home, her husband hadto support her somewhere else. Cruelty was a major cause of legal separationand divorce. However, a woman had to fear injury or death to expect a courtto free her from the marriage. Shaw v. Shaw illustrates how narrowly the courts viewed cruelty even up to the mid-nineteenth century.
Emeline and Daniel Shaw married on 24 October 1841, and lived together until10 June 1844. On that day, Emeline left Daniel to live with her mother--and went to court for a divorce charging him with cruelty. At a hearing before Justice Joel Hinman at the February of 1845 term of the superior court in Litchfield, she claimed her husband often spoke to her in angry, abusive, and obscene language, even in front of her children (by a former husband). He called her names, such as "old hypocrite," and "ugly devil." He implied she was a slut and accused her of going to New York to have intercourse with other men.
Emeline testified that Daniel was unreasonably jealous of her, and would notallow her to visit her friends or family--particularly with her mother or his. On one occasion, when her mother-in-law had come to see the ailing Emeline,Daniel turned her away, forbidding her to come again. At another time, whenEmeline wanted to sleep overnight at her mother's house--her health being sopoor she could not have intercourse with Daniel--he tried to stop her by locking her door. She escaped out a window. In short, Daniel was intolerably cruel to Emeline.
Patriarchal Power
In February of 1845, after a preliminary hearing, the dispute went to Connecticut's Supreme Court of Errors.
Daniel's lawyers argued that he was not guilty of "intolerable cruelty" because these words meant "personal violence," resulting in extreme suffering or death--or, at least, endangering one's life or health. Daniel's actions were not "cruel" in either sense--certainly not extreme enough to allow for even adivorce a mensa et thoro. Finally, words, however abusive, are not legal cruelty. Daniel's violence did not endanger life, injure his wife, or disturb the peace. For such lesser cruelties, the remedy lay with the legislature, not the courts.
Emeline's lawyers argued that the supreme court should permit the Shaws to separate. By endangering his "blameless" wife's health, Daniel had forfeited his right to Emeline's company. Even though Daniel committed no bodily harm tohis wife, his behavior defeated "the great ends of marriage." Especially offensive was his insulting and obscene language in front of the children, the mental "torture" he inflicted upon her by denying her access to her friends andfamily, and his "barbarous and disgusting abuse of his marital rights" by rape.
For the court, Chief Justice Williams first asked what constituted intolerable cruelty:
What is that "intolerable cruelty" spoken of in the statute? It doubtless speaks of acts done to the wife herself; and we understand it to impart barbarous, savage, inhuman acts. They must be of that character as to be in fact intolerable, not to be borne. The legislature musthave had in view acts as cruel at least for those for which, under the head of extreme cruelty, the ecclesiastical courts in Great Britain divorcea mensa et thoro; and those decisions may furnish some assistance uponthe subject . . .
The chief justice accepted Daniel's lawyers' argument that words, however abusive, did not amount to legal cruelty. He also agreed that Daniel's violencedid not endanger his wife's life, injure her, or disturb the peace. Rationalizing Daniel's abusive language, Williams said:
The first thing tobe considered . . . is the language made use of, by this defendant, towardshis wife. It is vulgar, obscene, harsh . . . They were, however, accompaniedby no act or menace indicating violence to her person . . . but when we lookfurther, and find, that he was jealous of his wife, it is not so much to be wondered at, as we have been told by authority, that "jealousy is the rage ofman." The unfortunate victim of this passion is indeed to be pitied; but thelaw furnishes no remedy for conduct like this.
Refusing to let Emeline visit her own mother and relatives was "harsh, if notcruel," the court agreed. However, it upheld the rule of patriarchy, concluding:
As the husband must have the right to say who shall be admitted to his house, and in some measure to regulate the intercourse of his wife, the court cannot draw a line by which his authority can be restrained.
Chief Justice Williams added that even unreasonable exercise of a husband's authority was not the kind of cruelty that would warrant a separation. He attributed Daniel's rape of his wife to his ignorance of Emeline's condition. Daniel did not know he was hurting her, and besides, she suffered no "real" harm. In conclusion, nothing the husband had done to the wife, rape included, wasunlawful:
Were these acts, such acts of intolerable cruelty as are a cause of separation? No case of this kind is known to have been broughtbefore the court . . . The cases [of violence] found in the books, are casesof violence, where the natural consequence would be injurious or dangerous, and where the act, therefore, was unlawful. Here the act in itself was a lawful act--in ordinary circumstances, not injurious nor dangerous . . . Are we tocouple an act of this kind with an act where a violent blow is given, whichmust greatly injure or endanger, and which was so intended?
Therefore, the court refused to allow Emeline either to divorce or separate from Daniel.
Shaw v. Shaw illustrates how supportive the courts were of the idea that the husband was the head of the house: The "husband must have the right tosay who shall be admitted to his house, and in some measure to regulate theintercourse of his wife." His rape of his wife, unlike today, was neither criminal nor cruel.
In 1978, only three states had laws that did not grant married men immunity from the rape of their wives. That year, the trial of Oregon v. Rideoutled many other states to abolish marital and cohabitation exemptions to rape.
Related Cases
- Oregon v. Rideout, 108,866 Circuit Court, County of Marion, Oregon(1978).
Spousal Abuse
According to Daniel E. Koshland in Science, 29 percent of American women murdered in 1992 were killed by their husbands, former husbands, or "suitors." Koshland noted, "The type of person who is a batterer tends to become astalker after the breakup of the relationship, a situation in which the womanfrequently concludes (correctly) that her situation can become more perilousif she tries to leave."
Why do more women not take action in such situations? Koshland noted the prevalence of cultural norms which almost seem to mandate domestic violence by placing the wife in a subservient role to her husband. In addition, women who stay with abusers are often motivated by economic dependence and a desire to protect the home and the children--again, attitudes that arise from prevailingsocietal standards regarding gender roles.
Sources
Koshland, Daniel E. Jr. "The Spousal Abuse Problem." Science, 22 July1994.
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