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8

Her Day in Court: The Legal Odyssey of Clarissa Wren

 



             DANIEL W. STOWELL

 

Antebellum Illinois law made liberal provisions for women to obtain divorces and sometimes alimony from husbands who had mistreated them. In the moral climate of antebellum America the law condemned women and men who committed adultery, although criminal prosecutions for adultery were generally on the wane. Adultery was one of the most widely accepted grounds for divorce in the United States. It was also one of the most successful. When men or women sued for divorce on the ground of adultery, they were more likely to obtain a divorce than on any other basis except desertion. 1

      When Aquilla Wren divorced his wife, Clarissa Wren, for her acts of adultery and her hostility to him, she persistently pursued an alimony payment from him despite significant cultural and legal obstacles. Even though Aquilla Wren died during the course of the proceedings, Clarissa Wren demanded her day in court and took her case all the way to the Illinois Supreme Court. There, a rising young lawyer named Abraham Lincoln argued her cause. The majority of justices in the state's highest court, wearing their paternalistic face, insisted that, though a jury had found Clarissa Wren guilty of adultery and of other offenses against her husband, she should have an opportunity to present her case for alimony or dower. Such a decision would hardly be expected from a patriarchal court intent on upholding male dominance of women.

      Aquilla Wren (1797-1844) and Clarissa Jones (b. 1811) married in Jackson County, Ohio, in January 1826. In 1829 the Wrens, like many other Americans, journeyed westward for a new start. They settled in Springfield, Illinois, where Aquilla Wren opened a store. A year later Aquilla and Clarissa Wren moved seventy miles north to the small village of Peoria, where he opened another dry goods store, purchased land, and became one of the town's leading merchants. The state legislature had organized Peoria County in 1825 with Peoria as the county seat. By the early 1830s Peoria had only twenty-one log cabins and seven frame houses. The town did not incorporate until 1835. However, Peoria grew into an important port on the Illinois River during the next decade. In the mid-1840s more than forty riverboats made hundreds of arrivals annually in Peoria. By 1844 the town had 1,619 inhabitants. 2

      Aquilla Wren's fortunes grew with Peoria. In March 1832 he was elected as a county commissioner. In 1833 he sold several town lots to Isaac Underhill, a new settler who became a real estate dealer himself. By 1834 Wren owned and operated a steamboat ferry across the river to Tazewell County. 3

      In February 1835 the Illinois legislature passed a bill to incorporate the State Bank of Illinois and appointed twenty-four men, including Aquilla Wren, as commissioners of the State Bank. Two years later, in the midst of Democratic assaults on the State Bank of Illinois as unconstitutional, the young Whig state representative Abraham Lincoln defended the State Bank before the Illinois House of Representatives. Insisting that the commissioners could not be bribed, Lincoln read the name of each commissioner, including that of Aquilla Wren. "These are twenty-four of the most respectable men in the State," Lincoln insisted. "Probably no twenty-four men could be selected in the State, with whom the people are better acquainted, or in whose honor and integrity, they would more readily place confidence." 4

      In 1836 Aquilla Wren again served as a county commissioner. By the early 1840s Wren owned a store, a sawmill, and a ferry crossing the Illinois River at Peoria. In 1841 Wren was elected a trustee and city assessor for Peoria. He was also actively engaged in lending money. 5 Although Wren's business and reputation grew in the 1830s and early 1840s, his marriage faltered. The Wrens had no children, or at least none who survived into the 1840s. The couple was not alone, however; by the early 1840s Aquilla Wren's brother, Clarissa Wren's father, and some of her cousins lived nearby in Peoria County.

      In 1843 Aquilla Wren engaged a talented team of lawyers, including Norman H. Purple, George T. Metcalfe, and Onslow Peters, to represent him in his divorce case against his wife. 6 Early in September 1843 Wren filed his bill for divorce with the clerk of the Peoria County Circuit Court, charging his wife with numerous counts of adultery. While the Wrens lived in Springfield in 1830, he insisted, she committed adultery with Willard Center, Lockwood Center, William Stanley, and Abraham Minier. Wren also declared that his wife "has been in habits of improper intimacy" and had committed adultery with Jacob Darst, a clerk in Aquilla Wren's store. 7 Specifically, Aquilla Wren charged that in the summer of 1838 or 1839, his wife had sent away her servant girl and spent the night alone with Darst; that in 1838 she had complained to several neighbors that her husband "would ruin Darst by taking him down the river" and that it was a pity as "he (Darst) was such a pretty nice young man"; that in the summer of 1838 Clarissa Wren and Jacob Darst were in her bedroom alone for some time; that they were again alone at Darst's brother's house "for some time" in the fall of 1842; and that his wife and Darst were frequently alone at the home of her father, Henry Jones, for a period of six weeks in the fall of 1842. Aquilla Wren also alleged that in the summer of 1841 Clarissa Wren "peeped through a key hole to see a young man undress and go to bed." On another occasion, Aquilla Wren claimed, she allegedly asked a neighbor where Johanns Adams "got his skin now his wife was dead." 8

      In addition to various acts of adultery and immorality, Aquilla Wren charged that his wife publicly expressed her desire to "ruin" him, refused to cook for him, and "concealed or destroyed various valuable deeds and other papers." He claimed that she told several people that she "could stand over him and see him draw his last breath with pleasure, and that she hoped the brother of said complainant, then sick, would die." Aquilla Wren's bill concluded that his wife's conduct had been "lewd, lascivious, immodest, unkind and cruel, that she has in various ways endeavored to injure and vex complainant in his domestic relations, in his feelings, in his business, property and reputation." In sum, she was "no longer worthy [of] the name of a wife in the confidence and affection of a husband." 9

      On September 4, 1843, the circuit clerk issued a summons directing the sheriff of Peoria County to bring Clarissa Wren before the court on the third Monday of October 1843. Clarissa Wren hired the Springfield law firm of Stephen Trigg Logan and Abraham Lincoln, as well as the local legal partnership of Elihu N. Powell and William F. Bryan, to represent her. 10 On the third day of the October session Clarissa Wren filed her answer to her husband's allegations. She denied that she had committed adultery with anyone in Springfield. While they lived there, "a malicious and unprincipled woman" had attempted to "propagate such a report." She also denied having any "improper intimacy" with Jacob Darst or any other person in Peoria County. Clarissa Wren further contradicted Aquilla Wren's charges by declaring that she never sent her servant girl away in order to be alone with Jacob Darst. At the girl's "earnest request" Clarissa Wren had allowed her to leave for one night. However, since Darst was Clarissa Wren's cousin and another hired man was present, she saw "no impropriety in it." She did not recall the comments about Darst that her neighbors attributed to her, but if she had said them, she could not "conceive it to be either ground of divorce or of scandalous imputation against her." She had stayed at her father's house in October 1842 for a few days, not to see Darst but because she was compelled to do so "by the barbarous and cruel conduct and morose temper" of Aquilla Wren. Darst was a boarder at her father's house, but "she could see no reason why this should prevent her seeking her natural asylum from the cruel and inhuman treatment of her husband." 11

      According to Clarissa Wren, her husband sent her a letter while she was at her father's house, entreating her to return to him. She enclosed a copy of the letter, dated October 30, 1842, as evidence to support her case:

Dear Clarissa
   I send you this letter by Sylvester. I was utterly astounded yesterday when I found you were gone perhaps forever I beseech you to come back before it is too late.... I still believe you have some love for me yet. I never knew more for you until now. O! if you had only told me your intention.... Let me now appeal to all your better feelings. I shall wait with open arms to receive you. For God sake don't let me appeal in vain I write this with tears in my eyes and a heart so full it is allmost ready to burst if you know my anguish of my soul you would come to me with the wings of the Eagle. Yes I no my Clarissa has not so far forgotten me as to be Deaf to my entreaties
Your loving husband
   A Wren

Clarissa Wren found it "most strange and unaccountable that he should have evinced such anxiety to be reconciled to and receive back a woman who had been guilty of that adulterous[,] lewd[,] lascivious[,] and immodest course of life" that he now charged against her. She returned to her husband in the fall of 1842, and they lived together until August 1843, when she was again "compelled by the threats and violence" to leave him and return to her father's house. She accused him of striking her and of throwing a bucket of cold water on her while she was in bed one morning. After the latter incident she refused to cook for him any longer; before, she had "always endeavored faithfully to discharge her domestic duties." She denied all other charges that Aquilla Wren made against her, including trying to injure him, "tho she has had much provocation to do so." 12

      After Clarissa Wren filed her answer, both sides began to develop lists of witnesses and take depositions from witnesses that lived too far away to attend court. Aquilla Wren requested depositions from sixteen witnesses in Rock Island County, Sangamon County, and Tazewell County in Illinois and from Athens County in Ohio. He subpoenaed at least twenty-seven more witnesses from Peoria County. Clarissa Wren requested a deposition from one witness in Bureau County, Illinois, and subpoenaed at least fifty witnesses before and during the trial. In November and December 1843 Clarissa and Aquilla Wren obtained the depositions of eight people in four different counties. Although women made up roughly one-quarter of the witnesses requested by each party and one-quarter of those who eventually testified, the form of their testimony reveals a significant gender pattern. Of the ten women who offered testimony in the case, only three appeared in court. The other seven women testified by deposition. 13

      Clarissa Wren deposed Margaret Hasler, a newly married German teenager who lived in Bureau County, north of Peoria. In the summer of 1843 Hasler had lived with the Wrens for two and a half weeks. During this time, she said, Aquilla Wren was "very cross towards his wife." In contrast, Clarissa Wren "was very kind to him all the time that I lived there." When asked how many times she heard Aquilla Wren swear at Clarissa Wren, she said she did not know how many times, but she did not remember ever hearing Clarissa Wren swear at Aquilla Wren or call him "hard names." Much of the deposition and cross-examination dealt with whether Hasler and Clarissa Wren or Aquilla Wren prepared breakfast for him and his laborers on the day that she left the Wrens' service. 14

      From Rock Island County, on the Iowa border, Aquilla Wren obtained the testimony of Lockwood J. Center, one of the men with whom Wren accused his wife of committing adultery. Center lived in the Wrens' neighborhood in Springfield from October 1829 to April 1830. He testified that Clarissa Wren's conduct "did not become a married or single Lady" and he "new her to be unfaithful and untrue to her companion." When asked whether she had "carnal connection with any other person than her husband," Center answered, "She had." When asked whether she committed adultery with any person during the time that he knew her, he answered, "She did." 15

      From Tazewell County, across the Illinois River from Peoria, Aquilla Wren obtained the depositions of Eunice A. Armstrong, Eliza A. McCoy, and Levina Colbert. Eunice Armstrong was the stepmother of the Wrens' hired man, Sylvester Armstrong. She and her husband rented their home from Aquilla Wren. She testified that Clarissa Wren made threats to ruin Aquilla Wren, wished him dead, and frequently called him "the Old Devil." She also declared that Clarissa Wren complained that her husband abused her, but Eunice Armstrong thought Aquilla Wren "treated his wife kindly so far as I saw." Aquilla Wren complained to her that "he had suffered more than a thousand deaths at this woman's hands." After Clarissa Wren refused to cook for him, Aquilla Wren ate his meals with the Armstrongs. A few days later Clarissa Wren encountered his dog when she came to the Armstrongs' house. She said to the dog, "Go away you scoundrel you have taken up your board here and I will have nothing to do with you." Under cross-examination Armstrong declared that as far as she knew, Clarissa Wren "always had everything in good order" in her home. 16

      Levina Colbert had known the Wrens for seven years and had lived with them for a few weeks after she first met them. She had "never seen any harm in Mr. Wren or either of them." Eliza A. McCoy had known the Wrens for more than a year. She had "never known any thing but kindness on the part of Mr. Wren." When asked whether the duties performed by Clarissa Wren while keeping house for her husband were very laborious, McCoy replied, "I never thought them laborious she did her own work like other woman. I never saw Mrs Wren milking but two or three times and then she was milking alone." 17

      In Sangamon County, Aquilla Wren obtained testimony from Willard R. Center, Elizabeth Stanley, and Leonora Neal. Willard R. Center knew the Wrens when they lived in Sangamon County in 1829 and 1830. When asked whether Clarissa Wren was guilty of any "immodest, unchaste, or lewd conduct," Center refused to answer the question "in that shape." When asked whether she had "carnal connexion with any person except her husband," Center answered, "I know that she had it" within the five or six months of his acquaintance with the Wrens. When asked "with whom had she such carnal connexion," Center replied, "I decline answering." His answer is unsurprising, given that he was one of the four men with whom Aquilla Wren accused his wife of having sexual relations while they lived in Springfield. 18

      Elizabeth Stanley had lived in the same house with the Wrens in Springfield in 1829 and 1830. She testified that Lockwood Center and Willard R. Center had each visited Clarissa Wren alone in her room when Aquilla Wren was out of town. At one point Clarissa Wren told Stanley that she "considered her self in a fameliway" (pregnant). Stanley also recalled a conversation in which Clarissa Wren told her that "she did not love her husband but loved the young man [Lockwood Center] better and if he would run off with her she would go with him." Clarissa Wren also confided to Stanley that when the Wrens had lived in Ohio, she had agreed to elope with a man named Joseph Will. Leonora Neal was the daughter of Elizabeth Stanley, and she substantiated her mother's allegations regarding Clarissa Wren and Lockwood Center. Clarissa Wren also told Neal that "she considered herself in a family way by Willard Center" and that they had agreed to run off together. 19

      By the spring of 1844 Aquilla Wren was "boarding" at the Planter's House, a hotel at the corner of Adams and Hamilton Streets, across from the county courthouse. 20 The March 1844 term of the Peoria County Circuit Court began on Monday, March 4, in the courthouse in Peoria. John Dean Caton, an associate justice of the Illinois Supreme Court and the judge for the Ninth Judicial Circuit, presided at the trial. 21 On the third day of the term the court opened the depositions in the case of Wren v. Wren. On March 8 Clarissa Wren, through her attorneys, filed a petition with the court for alimony pendente lite, or a temporary allowance for support and for preparing her case. 22 On the following day she withdrew her petition for temporary alimony, and the court granted her motion to file an amended answer. In her amended answer, filed on March 9, Clarissa Wren charged that her husband "has disregarded his marriage vows by repeatedly committing adultery with divers persons unknown" to her. Specifically, she charged that during the winter of 1839-40 and in the winter of 1841, while "absent down the Mississippi," Aquilla Wren "grossly and shamefully committed adultery with divers Black & Mulatto women to your respondent unknown." She discovered his "adulterous conduct" only after she had filed her original answer in October 1843. 23

 

 

 

The Peoria County Courthouse, ca. 1854 (it was built in 1835), where the county circuit court heard the Wren divorce case. Courtesy of the Illinois State Historical Library, Springfield.

 

      Fearing that her denials would be insufficient, Clarissa Wren's attorneys filed this amended answer to divert attention from her adulterous and scandalous behavior. By accusing Aquilla Wren of committing adultery with African-American women, they attempted to tap northern racial animosity. They hoped that the all-male jury would be more enraged by a man who violated moral standards and racial taboos than by a woman who was alleged to have breached the standards of female moral behavior. Clarissa Wren's attempt to interject race into the case suggests that racial hostility might overcome the double standard of moral behavior for men and women, or so she and her attorneys believed. 24

      On Tuesday, March 12, Clarissa Wren filed a motion for a continuance, but Caton denied the motion. Two of her lawyers, Elihu Powell and William Bryan, then tried to have the court dismiss the depositions of Willard R. Center, Elizabeth Stanley, and Leonora Neal. Aquilla Wren and his attorney Norman H. Purple filed affidavits opposing the dismissal of the depositions, and Caton apparently refused to dismiss the depositions. On Wednesday, March 13, Aquilla Wren filed his replication to Clarissa Wren's amended answer. In this document Aquilla Wren declared that his wife's amended answer was "untrue and false, in the whole and in every part and portion thereof." 25

      The filing of Aquilla Wren's replication ended the pleading process, and the parties "joined the issue," or submitted it to the court for its decision. On Thursday, March 14, Caton ordered the sheriff to impanel a jury of "twelve good and lawful men" to try the case. After several jurors were excused or challenged, only nine jurors remained. Caton ordered the sheriff to "return without delay" three more jurors. The judge swore the jurors "well and truly to try the issue joined and a true verdict give according to evidence." 26 The jury then began to hear the testimony of thirty-six witnesses—fourteen for Aquilla Wren and twenty-two for Clarissa Wren. When the day ended before the jury had heard all the evidence, Caton ordered the sheriff to sequester the jury until 8 a.m. on Friday. 27

      On Friday and Saturday, March 15 and 16, the jury heard the remainder of the evidence. Purple, Aquilla Wren's attorney, provided the court with five instructions to issue to the jury. According to these instructions, the jury was to determine whether Clarissa Wren had committed adultery, whether she was guilty of any of the other charges, whether Aquilla Wren had condoned or forgiven his wife for any acts of adultery, whether Aquilla Wren had committed adultery, and whether he was guilty of any of the other charges his wife had made against him. After hearing nearly three days of testimony, the jury left the courtroom to deliberate. When it returned, the jury reported to Caton that it found Clarissa Wren guilty of committing adultery with Lockwood Center and Willard Center in Springfield in 1830 and of "improper intimacy" with Jacob Darst "not amounting to adultery." It also found her guilty of "endeavoring to injure complainant in his business, property, and reputation" and of "using improper language" about Aquilla Wren. However, the jury determined that Aquilla Wren had condoned or pardoned Clarissa Wren's acts of adultery in Springfield, as evidenced by his letter to her in October 1842. The jury further found Aquilla Wren not guilty of adultery and the other charges against him. 28

      According to the 1827 Illinois statute on divorce, "If it shall appear to the satisfaction of the court that the injury complained of was ... done with the assent of the complainants for the purpose of obtaining a divorce, or that the complainant was consenting thereto, or that both parties have been guilty of adultery, when adultery is the ground of complaint, then no divorce shall be decreed." Because the jury found that Aquilla Wren had forgiven Clarissa Wren's adulterous acts of 1829 and 1830, these actions alone were insufficient to decree a divorce. Furthermore, if the jury had found Aquilla Wren also guilty of adultery, the court would not have been able to grant a divorce, according to the statute. After the jury announced its verdict, Clarissa Wren filed a motion for a new trial. 29

      In the May 1844 term of the Peoria County Circuit Court, Clarissa Wren filed an affidavit insisting that the members of the jury in the March trial "were all, or nearly all, the well known personal friends" of Aquilla Wren. Furthermore, Smith Frye, the sheriff who selected the jury, was "pecuniarily interested in procuring a verdict" against her. 30 Frye had purchased from Aquilla Wren some land in which Clarissa Wren had dower rights, but those dower rights would end with a divorce. William S. Moss, one of the jurors, also had a "pecuniary interest" in a verdict against her. 31 Another juror, Samuel T. McKean, had "previously to his sitting on said jury, expressed an opinion against her." For these reasons Clarissa Wren wanted a new trial. 32

      To support her accusations Clarissa Wren presented four affidavits. George Ford testified that he had a conversation with McKean at Farrell's drug store in Peoria a few days before the trial. Ford said that he thought the charges against Clarissa Wren were false, and "McKean replied with some warmth, that he, McKean, believed the said charges to be true." Leonard Summers and Nathaniel S. Tucker also testified by affidavit that they heard McKean admit that he had discussed the charges with Aquilla Wren, and McKean expressed his belief that Clarissa Wren was guilty. Powell and Bryan, Clarissa Wren's attorneys, testified by affidavit that McKean had told them under examination "that he had formed and expressed no opinion as to the guilt or innocence of the defendant of the charges alleged against her." 33

      On June 4, 1844, attorneys for both sides presented arguments regarding a new trial. To counter Clarissa Wren's allegations of a prejudiced jury, Aquilla Wren presented four affidavits. Samuel T. McKean testified that although Aquilla Wren had talked to him about the charges, McKean had "formed no opinion in favor either of the plaintiff or the defendant or against either." Another juror, Samuel Dunn, had also been present at Farrell's drug store and participated in the conversation among McKean, Ford, and Summers. Dunn was "confident" that McKean expressed no opinion about whether the charges against Clarissa Wren were true.

      Juror William S. Moss testified that although he had purchased land from Aquilla Wren, the idea that he had a "pecuniary interest" in the verdict "never occured to his mind." Even though others later suggested that he did, Moss still believed that he "has not now any such interest." Sheriff Smith Frye testified that he selected the jurors for the entire session of the court without reference to this specific case and without thinking "who were friends or enemies of either party." Although he too had purchased property from Aquilla Wren, he did not believe that he had any "pecuniary interest" in the verdict. Clarissa Wren's attorneys objected to the filing of these affidavits, but the court overruled their objection. Aquilla Wren's attorneys also cross-examined George Ford and Leonard Summers before the court. Under cross-examination both witnesses moderated their version of the conversation in Farrell's drug store. After hearing arguments from the attorneys for each party and considering the issue, the court denied Clarissa Wren's motion for a new trial and took additional time to consider its ruling on the original bill for divorce. 34

      On June 15 Aquilla Wren's lawyers introduced depositions from Ralph L. Jones and Charles S. Awl stating that Clarissa Wren and Jacob Darst had both lived at her father's house since the trial in March. 35 On Monday, June 17, 1844, the Peoria County Circuit Court finally ruled on Aquilla Wren's bill for divorce. Caton ordered that "the bonds of matrimony between the said Aquila Wren and Clarissa Wren be from henceforth dissolved and that the marriage contract heretofore entered into between the said parties be and the same is hereby set aside[,] annulled and held wholly for nought." The court postponed its ruling on Clarissa Wren's application for alimony until the next term of court. The judge also ordered the master in chancery to determine and report on Aquilla Wren's assets, his yearly income, and the "amount necessary for the support and maintenance" of Clarissa Wren. According to the Illinois Supreme Court's 1835 decision in Reavis v. Reavis, alimony was to be "a yearly allowance commensurate to the support" of the wife and children "in proportion to the ability of the husband and her condition in life"; thus the court's request of the master in chancery to investigate Aquilla Wren's assets. 36

      Before the next meeting of the circuit court the dispute between Aquilla Wren and Clarissa Wren took an unexpected turn. On August 14, 1844, Aquilla Wren died of fever at the age of forty-seven. 37 Two weeks before his death Wren made his last will and testament. He directed that his "just debts" should be paid first. Then he gave $200 each to the daughters of his sister, Sarah Bobo of Athens County, Ohio. Wren bequeathed the remainder of his estate to his brother, Thomas Wren. Aquilla Wren also appointed William S. Moss, "my friend" and a juror in the recently ended divorce case against Clarissa Wren, as his executor. According to probate records, Aquilla Wren at his death owned $1,220 worth of personal property; 320 acres of land and seven town lots in Peoria, Illinois; and at least $3,000 in promissory notes, debts, and court judgments owed to him. He also owed several debts, but his estate probably amounted to several thousand dollars. 38

      On October 16, 1844, Abraham Lincoln, representing Clarissa Wren, filed the affidavit of Sheriff Smith Frye, which informed the court of Aquilla Wren's death. Lincoln also filed a motion to abate, or end, the case because of Aquilla Wren's death. Shortly afterward Lincoln recognized that asking for an abatement of the case without also asking for an appeal left Clarissa Wren with no legal options. Lincoln withdrew the motion to abate and filed a bill of exceptions to the court's actions. Clarissa Wren listed six specific exceptions to the court's actions: Smith Frye, the sheriff who selected the jury, had an interest in the outcome of the case; William S. Moss, one of the jurors, had an interest in the outcome of the case; Samuel T. McKean, another juror, had formed and expressed an opinion against Clarissa Wren before the trial; "a large majority" of the jurors were "strong personal friends" of Aquilla Wren's; the verdict was "against the law and evidence"; and the verdict did not "conform to the charges in the bill." 39

      Clarissa Wren's sixth exception was particularly strong, because Illinois law in 1844 provided seven grounds for divorce: adultery, bigamy, impotence, desertion, fraud, repeated cruelty, and habitual drunkenness. Although the jurors had decided that Clarissa Wren had committed adultery in 1830, they also declared that Aquilla Wren had forgiven his wife of her acts of adultery. Her "improper intimacy" with Jacob Darst did not meet the jury's definition of adultery, and her other "improper" behavior could only loosely be described as cruelty. However, in 1833 the legislature gave chancery courts "full power and authority to hear and determine all causes for a divorce, not provided for by any law of this state." No longer did a spouse have to suffer one of the enumerated injuries; if the court were "satisfied of the expediency" of decreeing a divorce, it could do so. The Peoria County Circuit Court had acted under this broad delegation of authority, and Clarissa Wren objected to its decision. 40

      After Caton signed and sealed the bill of exceptions, Lincoln again filed Clarissa Wren's motion to abate the case. The court abated the case "in so far as said suit is pending in this court." On Clarissa Wren's own motion, then, the court ended the consideration of alimony because of Aquilla Wren's death. As attorneys commonly did, Lincoln wrote out this complicated series of actions in the form of a decree before the clerk entered it into the court record. 41

      In the December 1844 term of the Illinois Supreme Court, Abraham Lincoln filed for Clarissa Wren a transcript of the case from the Peoria County Circuit Court and an assignment of errors. Lincoln specified that the Peoria County Circuit Court erred in denying Clarissa Wren's motion for a new trial, in denying her motion to set aside the verdict of the jury, and in "rendering a decree of divorce upon the verdict of the jury." Clarissa Wren requested that the supreme court place the case on the docket and publish a notice to identify any unknown appellees. The Peoria partnership of Powell and Bryan and the Springfield partnership of Logan and Lincoln represented her before the supreme court. Norman H. Purple, Onslow Peters, George T. Metcalfe, and Halsey O. Merriman represented the appellees. 42 As Aquilla Wren's executor, William S. Moss became one of the appellees in the case, but Clarissa Wren also named Thomas Wren, Smith Frye, and two of Aquilla Wren's nieces as appellees. Clarissa Wren could not remember the name of the other daughter of her sister-in-law, Sarah Bobo. Thomas Wren and Aquilla Wren's nieces were appellees because they were among the beneficiaries of Aquilla Wren's will. Frye was an appellee because both he and Moss had purchased land from Aquilla Wren on which Clarissa Wren had never relinquished her right of dower, as the law required. 43

      On Christmas Eve 1844 attorneys for Clarissa Wren and for William Moss presented arguments for and against her motion for a writ of scire facias to summon Moss, Frye, and Thomas Wren before the supreme court and for an order of publication to notify Sarah Bobo's daughters in Ohio of the appeal to the supreme court involving their interests. Elihu Powell, supporting the motion, argued that the divorce decree and the death of Aquilla Wren left Clarissa Wren unable to recover dower in the estate. However, if she could not reopen the case by making the executor and heirs parties to it, she would "lose all claim of maintenance out of his estate." Norman H. Purple and Onslow Peters, opposing the motion, insisted that the issue in the lower court was one of divorce and did not survive the death of Aquilla Wren. Abraham Lincoln concluded the oral arguments and supported the motion by arguing that "a question of property, the right of dower or alimony is involved." Because the divorce decree barred Clarissa Wren from obtaining her dower and the abatement of the suit cut off her access to alimony, the action should continue "on account of the nature of the interests involved." 44 However, the court "not being sufficiently advised took time to consider." When they returned two days later, the justices granted Clarissa Wren's motion for a writ of scire facias and ruled that she could publish a public notice to compel the daughters of Sarah Bobo to appear before the court in March 1845. 45

      Lincoln's decision to invoke property as the issue was a brilliant maneuver to change the focus of the appeal. Rather than debate whether Clarissa Wren had committed any indiscretion to justify a divorce, Lincoln shifted the ground to a question of property. For nineteenth-century courts few, if any, subjects were as important as property. Lincoln insisted that if the supreme court refused to hear her appeal, it would violate her property rights. Although antebellum Illinois courts freely granted a divorce to a petitioner whose spouse had committed adultery, they were also scrupulous in their defense of property rights. Lincoln's oral argument persuaded the majority of the justices that the case was not merely about the dissolution of a marriage. Property rights of dower and alimony were inextricably linked to Aquilla Wren's petition for a divorce. Although he was dead and the issue of divorce per se was moot, the divorce decree had property implications for Aquilla Wren's nieces, his brother, his creditors, his debtors, and for Clarissa Wren.

      When the Illinois Supreme Court began its 1845 session that December, Norman Purple had replaced Jesse B. Thomas, Jr. on the court. Powell and Lincoln, representing Clarissa Wren, presented a motion asking the court to compel the appellees to "join the issue." On December 18 Powell and Lincoln presented oral arguments to the court in support of the motion, and Merriman and Jesse B. Thomas Jr. opposed it. Powell argued that according to the Illinois statute governing dower, a wife divorced for her own fault or misconduct lost her dower rights. 46 If an appellate court reversed the divorce decree, then she would again have a right to dower. Therefore, the husband's heirs and purchasers of land should be made parties to the case. Thomas argued that a writ of error applied only to those who had an interest in the subject matter of the case, not to those who had an interest only in the consequences of the case. The decree by the lower court was a divorce, "which is personal to the parties, and that decree has been affirmed by a higher power—by the death of one of the parties to the decree." Thomas further argued that if the supreme court reversed the judgment, the lower court could not retry the case. "Greater injustice would result to the heirs of Wren by a reversal," Thomas concluded, "than by a refusal of this court to open the case." The justices of the supreme court, "not being sufficiently advised took time to consider." 47

      On Monday, December 22, Justice Walter B. Scates, writing for the 7-1 majority, presented the opinion of the court. Justice Norman H. Purple recused himself from this case because he had been an attorney for Aquilla Wren in the case before the circuit court and earlier before the supreme court. Scates wrote that "the general rule at law is that the writ of error does not lie against any but him who is party or privy to the first judgment, his heirs, executors or administrators ... yet there are exceptions." In the 1824 case of Carr v. Callingham the judges of the Kentucky Court of Appeals had "intimate[d] strongly that they would so frame a writ of error in a chancery cause, as to bring all that might be affected by the reversal before them." Although it was "a novel practice introduced by statute" to allow a writ of error in a chancery case when doing so would in effect retry the whole case, "it is a practice long indulged." Aquilla Wren's death rendered the question of divorce moot, but it also prevented further proceedings on the question of alimony.

      However, if the decree granting the divorce was erroneous and Clarissa Wren could not appeal the decision because of a lack of appellees, it would "unjustly deprive" her "of all right to dower." Moss, as the executor of Aquilla Wren's will, did have an interest in the outcome of the case because of the court costs involved that might be charged to the estate. Furthermore, Thomas Wren and Sarah Bobo's daughters had an interest in the case because they might lose one-third of their inheritance if Clarissa Wren received her dower from Aquilla Wren's estate. If they were not parties to the case, they could lose such property "without a hearing." Likewise, Moss and Frye, who had purchased land from Aquilla Wren on which Clarissa Wren had not released her dower interest, could also lose a portion of their property if the court reversed the divorce decree. The majority of the court concluded, then, that "we should frame such a writ of error brought on a decree in chancery as will secure the interests of all who may be affected by it, while it affords a remedy to the plaintiff." 48

      Justice Richard M. Young dissented, insisting that the issue in the Peoria County Circuit Court was "a matter purely personal," that of the divorce of Aquilla Wren and Clarissa Wren. The "sole question" to be litigated in the supreme court was "the correctness or otherwise of the decree granting the divorce," even though the rights of others might be affected by the court's decision. Should the court permit Clarissa Wren to reverse a decree of divorce from her husband after his death? "I think not," Young concluded. 49

      On December 29 Thomas, Metcalfe, and Merriman, the attorneys for Moss, Frye, and Thomas Wren, filed a petition for rehearing. The attorneys asked for a rehearing because they had been "unable to furnish the court with any authorities or decisions and were compelled in consequence to submit the decision of the question upon argument only." They declared that the question at issue had "never before been raised in this court." Because it was "of considerable importance in principle, as well as to the parties to the suit," they wanted to provide the court with authorities to support their position. 50

      The court apparently denied the appellees' petition for a rehearing, and the parties finally joined the issue in the Illinois Supreme Court more than eighteen months after the Peoria County Circuit Court had decreed a divorce between Aquilla Wren and Clarissa Wren. On Saturday, January 3, 1846, William Bryan opened the oral arguments for Clarissa Wren on the issue of whether the circuit court had made errors. Norman H. Purple again recused himself. On January 10 Thomas filed a motion for a continuance in the case until the next term and supported his motion with an affidavit by Purple. Purple informed the court that although he had the "utmost confidence" in the abilities of former justice Thomas, who had argued the case in the current term, Purple believed that "it is important to the rights of the parties in interest in this case" that George T. Metcalfe present the oral argument for the appellees. Purple affirmed that Metcalfe "is very familiar with the whole case," but Metcalfe was sick and unable to attend court. Lincoln and Bryan opposed the motion for a continuance. After considering the issue for two days, the court granted the continuance to the next term. 51

      During 1846 Clarissa Wren's attempt to reverse the divorce decree against her took more unexpected turns. On October 8 Moss resigned his position as executor of Aquilla Wren's estate. On the same day Thomas Wren, Aquilla Wren's brother, became the administrator de bonis non of Aquilla Wren's estate by swearing an oath that he would "well and truly administer" the estate. Three weeks later, on October 29, Clarissa Wren married Amaziah Hart in Peoria in a ceremony performed by the minister John P. Tinkerton. When the Illinois Supreme Court convened in Springfield on December 16, Merriman informed the court of these changes in the status of the parties to the case. Because of the doctrine of coverture, in which the wife's legal personality was subsumed into that of her husband, Amaziah Hart became a party to his new wife's case. Thomas Wren and Moss were already parties to the case, but their relationships to the case had changed. Finally, Merriman, on behalf of Moss, Frye, and Thomas Wren, confessed the errors that Clarissa Wren had assigned. By consent of the parties the supreme court ordered the divorce decree "reversed[,] annulled[,] set aside[,] and wholly for nothing esteemed." Thomas Wren agreed to pay the costs of the case out of the assets of Aquilla Wren's estate. 52 Two and a half years, almost to the day, after the Peoria County Circuit Court granted Aquilla Wren's petition for a divorce from his wife, the Illinois Supreme Court reversed that decree. By judicial action Clarissa Wren, once the divorced adulteress, became the widow of Aquilla Wren, with her dower rights intact.

      Lincoln or his partners were involved in seventeen similar cases between 1839 and 1861 in which husbands sued their wives and charged them with adultery. In twelve cases (71 percent) the court or jury found the defendant guilty and granted the divorce. In two of these cases the woman received alimony or a single payment in lieu of alimony. The court dismissed four other cases, which sometimes implied a reconciliation. The judgment in the last case is unknown, but in no case did the court find for the alleged adulteress. 53

      Clarissa Hart's second husband, Amaziah Hart, died on October 7, 1847, and as his widow, she administered the settlement of his estate. On April 13, 1848, the minister Samuel Ladd performed the marriage of Clarissa Hart to her third husband, farmer Sanford H. White, across the Illinois River in Tazewell County. 54 In 1850 she and her husband lived in Peoria County near her extended family. Her husband owned $1,800 in real property, but unlike nearly all married women in antebellum America, Clarissa Jones Wren Hart White owned $1,500 of real property in her own name. 55

      Clarissa Wren's odyssey through the Illinois courts in the 1840s reveals much about the role and experience of women within the court system. Clarissa Wren was clearly at a legal disadvantage when her husband, a prominent Peoria businessman, accused her of adultery and sued her for divorce. In the moral climate of the nineteenth century adultery remained a serious moral offense for both men and women, though clearly more so for women. Aquilla Wren also accused his wife of another serious infraction of married women's duties: failing to perform her "domestic duties." He employed a prominent set of lawyers and subpoenaed numerous witnesses. The jurors may also have been biased against her because they allegedly were all friends of her husband. She might also have noted that they were all men, but within this historical context the observation would have been of no use to her.

      However, neither Illinois law nor the legal system left Clarissa Wren without opportunities for redress. She too employed leading attorneys and called even more witnesses than did her husband. Even when found guilty of adultery, "improper intimacy," and of trying to ruin her husband, she still appealed for alimony and had some chance for success. When Aquilla Wren died, she prosecuted a writ of error to the Illinois Supreme Court and won a hearing. By transforming the issue in the case into one of property, her attorney Abraham Lincoln invoked the powerful rights of dower and alimony. The supreme court accepted Lincoln's reasoning and allowed the writ of error with those who had an economic interest in the case as parties. Failing to prevent the appeal, the other parties capitulated and the supreme court reversed the divorce decree and restored Clarissa Wren's dower rights.

•  •  •

The stories of Nancy Robinson Dorman, Jane Ann Rupert, and Clarissa Wren illustrate how Illinois courts responded to the individual plights of women and children. A child when her stepfather seized and sold her inheritance, Nancy Robinson Dorman later challenged him in court and won, not once but three times, before the Illinois Supreme Court. Jane Ann Rupert, a young orphaned victim of sexual assault, found the court ready to listen to her story and to protect her from future harm by convicting and sentencing her attacker to prison. Like other women and children in antebellum Illinois, Clarissa Wren had access to the courts to challenge her husband's allegations and to press her claims for alimony or dower. Ultimately, she recovered her dower rights through a reversal of the divorce decree.

      What do these stories disclose about the status of women and children before the courts of antebellum Illinois and about their experiences before those courts? First, women and children had access to courts to plead their cases. Second, women and children could expect a hearing before these courts with a reasonable chance of success. Third, these courts viewed women and children as objects of paternal care rather than patriarchal dominance. What, for example, might Nancy Robinson Dorman or Clarissa Wren have expected from a truly patriarchal court? John Lane had served as Nancy Robinson's guardian for much of her life and had paid some of her father's debts. He might well have expected to be able to profit from and even sell some of the land she inherited, given his new responsibilities in caring for her. Clarissa Wren, divorced because of her own adulterous, hostile, and "improper" actions, could hardly have anticipated a sympathetic hearing from a court committed to maintaining male dominance of women. The trial following the rape of Jane Ann Rupert is less surprising and suggests some of the limits of paternalism in antebellum Illinois; only when the victim was so young as to preclude any doubt about her moral character did juries consistently find attackers guilty of rape.

      The other essays in this volume likewise show that women and children generally had access to the courts and, in some areas of the law, even special provisions, such as temporary guardians for children in inheritance cases and the ability to sue without court costs for women seeking divorce. Illinois law and Illinois circuit courts allowed women to end marriages that endangered them or left them economically vulnerable. Women were also quite successful in formally terminating marriages that deserting husbands had already dissolved in fact. Inheritance procedures allowed heirs to challenge unfavorable wills and to ensure equitable distribution of estates. A widow's right to dower, while rarely equal to the property or contributions that she brought to the marriage, was an object of particular concern for courts. Some women, like Margaret Porter of Sangamon County, derived considerable economic benefit from pointing out procedural irregularities that threatened her dower rights. Furthermore, while widows often did not own substantial real property, they did manage their deceased husband's property for the benefit of their children.

      These essays also shed considerable light on Abraham Lincoln's legal and social environment. Through his law practice he became a vital part of hundreds of these individual and family tales of squabbling siblings, struggling widows, and failed marriages. While anecdotal evidence suggests that he did not enjoy these family-turned-legal conflicts, he did gain a firm grasp of the concerns and interests of a broad spectrum of people, from farm laborers to state officers. He also relished the opportunity to be a peacemaker and arbiter in disputes that might be settled amicably. His own paternalistic attitudes toward women and children resonated with those of many of his fellow lawyers and the judges in whose courts he practiced.

      Finally, these forays into the family law of antebellum Illinois illuminate a society in transition, from small frontier hamlets nearly self-sufficient to growing towns and cities increasingly connected by railroads and webs of credit to the entire nation. Legal change mirrored social change; the expanding grounds for divorce, the increasing attention to the "best interests of the child," and the passage of a married woman's property act are among the most obvious of such changes. Increasingly through the antebellum era, paternalistic Illinois legislators, lawyers, and judges gave "tender consideration" to the interests of women and children.


Notes

      1. See table 3.2 in Stacy Pratt McDermott's essay "Dissolving the Bonds of Matrimony" in this volume.

      2. Newton Bateman, Paul Selby, and David McCulloch, eds., Historical Encyclopedia of Illinois and History of Peoria County, 2 vols. (Chicago and Peoria: Munsell Publishing, 1902), 2: 239, 243.

      3. S. De Witt Drown, The Peoria Directory for 1844 (Peoria, Ill.: Author, 1844), 28, 43; Peoria (Ill.) Register and Northwestern Gazette, 28 April 1838, 9 April 1840.

      4. Sangamo (Springfield, Ill.) Journal, 28 February 1835, 28 January 1837. For Lincoln's support of the State Bank, see Gabor S. Boritt, Lincoln and the Economics of the American Dream (1978; rpt., Urbana: University of Illinois Press, 1994), 13-24.

      5. Aquilla Wren probate file #913, Peoria County Probate Case Files, Illinois Regional Archives Depository, Western Illinois University, Macomb, Ill.; Drown, Peoria Directory for 1844, 28, 53; Peoria Register and Northwestern Gazette, 3 December 1841.

      6. Norman H. Purple (1803-63) moved to Peoria in 1837 to practice law. In August 1845 Gov. Thomas Ford appointed him as a justice of the Illinois Supreme Court to replace the resigning Jesse B. Thomas Jr. Purple held the position until the reorganization of the court in 1848. After resigning from the supreme court, Purple returned to Peoria to practice law. See Bateman, Selby, and McCulloch, Historical Encyclopedia, 2: 538-39; United States Biographical Dictionary: Illinois Dictionary (Chicago: American Biographical Dictionary, 1876), 674-75.

      George T. Metcalfe was a rising Whig attorney in Peoria. By 1844 he was Norman H. Purple's junior partner in the firm of Purple and Metcalfe.

      Onslow Peters (1805-56) was admitted to the bar in Massachusetts but came to Peoria in 1837 to practice law. He later became the judge of the Sixteenth Judicial Circuit. See The Biographical Encyclopaedia of Illinois of the Nineteenth Century (Philadelphia: Galaxy, 1875), 360; John M. Palmer, ed., The Bench and Bar of Illinois: Historical and Reminiscent, 2 vols. (Chicago: Lewis, 1899), 2: 306.

      7. Jacob Darst (1815-after 1890) was born in Ohio. He came to Peoria in June 1835 and worked as a clerk for Aquilla Wren in his general merchandise store. In 1836 Darst went to Galena, where he worked in the lead mines. In 1838 he returned to Peoria and began speculating in land. He also piloted boats down the Mississippi River for Aquilla Wren. Darst operated a coal mine and continued to speculate in land. See The History of Peoria County, Illinois (Chicago: Johnson, 1880), 639; Portrait and Biographical Album of Peoria County, Illinois (Chicago: Biographical, 1890), 364-65.

      8. Bill of Complaint, October 1843, Wren v. Moss et al., in The Law Practice of Abraham Lincoln: Complete Documentary Edition, ed. Martha L. Benner and Cullom Davis et al. (DVD; Urbana: University of Illinois Press, 2000), hereafter cited as LPAL.

      9. Ibid.

      10. Stephen Trigg Logan (1800-80) was admitted to the bar in Kentucky and settled in Springfield, Illinois, in 1832. In April 1841 Abraham Lincoln became Logan's junior law partner. Their partnership continued until December 1844, when Logan entered a partnership with his son David Logan, and William H. Herndon became Lincoln's junior partner. See Allen Johnson, ed., Dictionary of American Biography, 11 vols. (New York: Charles Scribner's Sons, 1964), 6: 365-66; Usher F. Linder, Reminiscences of the Early Bench and Bar of Illinois (Chicago: Chicago Legal News, 1879), 155-59; Palmer, Bench and Bar of Illinois, 1: 166-69.

      Elihu N. Powell (1811-71) was a prominent member of the bar in Peoria County. He joined in partnership with William F. Bryan in 1839. Powell became judge of the Sixteenth Judicial Circuit in November 1856. See Peoria Register and Northwestern Gazette, September 14, 1839; Palmer, Bench and Bar of Illinois, 1: 306-7. Elihu N. Powell (1811-71) was a prominent member Elihu N. Powell (1811-71) was a prominent member of the bar in Peoria County. He joined in partnership with William F. Bryan in 1839. Powell became judge of the Sixteenth Judicial Circuit in November 1856. See Peoria Register and Northwestern Gazette, September 14, 1839; Palmer, Bench and Bar of Illinois, 1: 306-7.

      William F. Bryan was born in Pennsylvania in 1810 and in 1839 settled in Peoria, where he became Elihu N. Powell's law partner. See Palmer, Bench and Bar of Illinois, 1: 311-15.

      11. Summons, 4 September 1843, Wren v. Moss et al., LPAL; Answer, 18 October 1843, Wren v. Moss et al., LPAL.

      12. Answer, 18 October 1843, Wren v. Moss et al., LPAL.

      13. Notices to Take Depositions and Subpoenas, November 1843-March 1844, Wren v. Moss et al., LPAL.

      The Wrens requested depositions from or subpoenaed eighty-four different individuals as witnesses; both parties subpoenaed nine of these people. Twenty-one (25 percent) of all those subpoenaed or deposed were women. There was no significant gender difference among the witnesses that each party requested to testify or among those witnesses that actually did testify. Of the forty-three witnesses that Aquilla Wren requested, ten (23 percent) were women. Of the fifty witnesses that Clarissa Wren requested, twelve (24 percent) were women. Only one woman (7 percent) was among those who actually testified in court for Aquilla Wren. Only two women (9 percent) appeared to testify for Clarissa Wren.

      A more stark gender pattern did emerge among the deponents, however. Of the nine depositions filed in the case (Aquilla Wren obtained another deposition in March 1844), seven (78 percent) were by women. The two men who testified by deposition, Lockwood J. Center and Willard R. Center, had a specific reason for wanting to stay out of court: Aquilla Wren had accused his wife of committing adultery with each of them. Therefore, the jury ultimately received testimony from forty-four witnesses, of whom ten (23 percent) were women. Yet only three of those women appeared in court; the rest (70 percent) testified by deposition.

      Other evidence supports the suggestion that a gender difference existed in the form of testimony. For example, Eliza A. McCoy from Tazewell County testified by deposition, but her husband, John A. McCoy, appeared in person to testify. Eunice A. Armstrong, also from Tazewell County, testified by deposition, but her stepson Sylvester Armstrong appeared in court.

      14. Deposition, 19 December 1843, Wren v. Moss et al., LPAL.

      15. Deposition, 18 November 1843, Wren v. Moss et al., LPAL. The clerk of the Rock Island County Circuit Court also asked Lockwood J. Center whether Clarissa Wren had admitted to him that she had committed adultery, "and if so with whom?" Center answered that he "did not recollect" hearing her say that she was guilty of committing adultery. The earlier questions did not require him to state with whom she had "carnal relations" or committed adultery. Because Center was alleged to have been one of the men with whom she had committed adultery, it is unsurprising that he "recollected" no admission on her part.

      16. Deposition, 6 December 1843, Wren v. Moss et al., LPAL.

      17. Ibid.

      18. Deposition, 12 December 1843, Wren v. Moss et al., LPAL.

      19. Ibid.

      20. Drown, Peoria Directory for 1844, 110; Jerry Klein, Peoria! (Peoria, Ill.: Visual Communications, 1985), 176.

      21. John Dean Caton (1812-95) moved to Chicago in 1833 and was admitted to the bar in 1835. In August 1842 Gov. Thomas Carlin appointed Caton to the Illinois Supreme Court. Seven months later Caton failed to win reelection, but Gov. Thomas Ford reappointed him to the court two months later. With the reorganization of the court in 1849 Caton remained on the bench and resigned in 1864. See Palmer, Bench and Bar of Illinois, 1: 39-41.

      22. Alimony pendente lite was a form of alimony specific to divorce cases. Most courts routinely granted it, because married women, whether plaintiff or defendant, rarely had other means of support.

      23. Decree, 6 March 1844, Wren v. Moss et al., LPAL; Decree, 7 March 1844, Wren v. Moss et al., LPAL; Circuit Court Transcript, 13 November 1844, Wren v. Moss et al., LPAL.

      24. For the racial attitudes of antebellum northerners see Leon F. Litwack, North of Slavery: The Negro in the Free States, 1790-1860 (Chicago: University of Chicago Press, 1961), 64-112; Charles N. Zucker, "The Free Negro Question: Race Relations in Antebellum Illinois, 1801-1860" (Ph.D. diss., Northwestern University, 1972); James Oliver Horton and Lois Horton, In Hope of Liberty: Culture, Community, and Protest among Northern Free Blacks, 1700-1860 (New York: Oxford University Press, 1997). For attitudes toward "race-mixing" see Joanne Pope Melish, Disowning Slavery: Gradual Emancipation and "Race" in New England, 1780-1860 (Ithaca, N.Y.: Cornell University Press, 1998), 122-26.

      An 1829 Illinois law made interracial marriage a criminal offense: "No person of color, negro, or mulatto, of either sex, shall be joined in marriage with any white person, male or female, in this state, and all marriages or contracts entered into between such colored person and white person, shall be null and void in law; and any person so offending shall be liable to pay a fine, whipped in not exceeding thirty-nine lashes, and be imprisoned not less than one year; and every person so offending shall be held to answer in no other than a criminal prosecution, by information or indictment" ("An Act Respecting Free Negroes and Mulattoes, Servants, and Slaves," 17 January 1829, Revised Code of Laws of Illinois [1829], 111).

      25. Decree, 9 March 1844, Wren v. Moss et al., LPAL; Decree, 12 March 1844, Wren v. Moss et al., LPAL; Motion, 13 March 1844, Wren v. Moss et al., LPAL; Affidavits, 13 March 1844, Wren v. Moss et al., LPAL.

      26. Decree, 14 March 1844, Wren v. Moss et al., LPAL. The jurors were Samuel T. McKean, John Coyle, Thomas Frye, Samuel Dunn, Benjamin Miller, William S. Moss, John Harris, Bayles Campbell, James K. Gove, Gaius Jenkins, John McFarland, and George Hart.

      The four jurors identifiable in the 1850 federal census—Coyle, Frye, Miller, and Gove—were all farmers. Their average age in 1844 was thirty-seven. An additional juror, Moss, identifiable in an 1844 Peoria city directory, was also a farmer and businessman and was forty-six years old. See U.S. Census Office, Seventh Census of the United States (1850), Peoria County, Illinois, ms.; Drown, Peoria Directory for 1844, 86.

      27. Decree, 14 March 1844, Wren v. Moss et al., LPAL.

      Witnesses for Aquilla Wren included R. L. Armstrong, Sylvester Armstrong, Anson Darst, Jacob Lineback, John Schock, James Green, Orson Rice, Charles S. Awl, George Divelbiss, James Murden, S. Stephen Guyer, Lydia Ann Darst, Hiram H. Degear, and Benjamin R. Beal. See Fee Bill, 23 May 1845, Wren v. Moss et al., LPAL.

      28. Decree, 16 March 1844, Wren v. Moss et al., LPAL.

      29. The term condonation in the canon law described the forgiveness by a person of his or her spouse for acts of adultery, with an implied condition that the injury would not be repeated. Cohabitation or "matrimonial intercourse" after learning of such infidelity was evidence of condonation, and condonation was a bar to a decree of divorce. The Illinois law of 1827 adopted this restriction on the granting of divorces. See John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States of America, 7th ed., 2 vols. (Philadelphia: Childs and Peterson, 1857), 1: 264-65; "An Act Concerning Divorces," 31 January 1827, Revised Code of Laws of Illinois (1827), 181-83.

      30. Affadavit, 27 May 1844, Wren v. Moss et al., LPAL. Smith Frye (1806-60) came to Peoria in 1834 from Pennsylvania. He was a Democratic candidate for sheriff as early as 1840 and was elected sheriff of Peoria County in 1842. He served at least until 1845. He also speculated in land. In 1859 he was appointed as the U.S. marshal for the Northern District of Illinois. See Peoria (Ill.) Democratic Press, 5 March 1840; Peoria Register and Northwestern Gazette, 12 August 1842; Peoria (Ill.) Daily Transcript, 23 September 1859; Aaron Wilson Oakford, comp., "The Peoria Story: A Picture Story from Mid-America about the Lives and Family Ties of Folks in Peoria, Illinois" (1949-57), Virginius H. Chase Special Collections Center, Cullom-Davis Library, Bradley University, Peoria, Ill.

      31. Affidavit, 27 May 1844, Wren v. Moss et al., LPAL. William S. Moss (1798-1883) was a prominent businessman and land speculator in Peoria and later in California. See Olive Davis, From the Ohio to the San Joaquin: A Biography of William Moss, 1798-1883 (Stockton, Calif.: Heritage West Books, 1991), 64-109.

      32. Affidavit, 27 May 1844, Wren v. Moss et al., LPAL.

      33. Affidavits, 27 May 1844, Wren v. Moss et al., LPAL; Affidavit, 28 May 1844, Wren v. Moss et al., LPAL.

      34. Circuit Court Transcript, 13 November 1844, Wren v. Moss et al., LPAL; Decree, 4 June 1844, Wren v. Moss et al., LPAL.

      35. Affidavit, 15 June 1844, Wren v. Moss et al., LPAL.

      36. Decree, 17 June 1844, Wren v. Moss et al., LPAL; Reavis v. Reavis, 2 Ill. 247 (1835). The master in chancery was an officer of the court who acted as an assistant to the judge. The master in chancery conducted investigations as in this case, took testimony, estimated damages, or sold property to execute judgments.

      37. Peoria Democratic Press, 21 August 1844.

      38. Will, Inventory of Notes Belonging to the Estate of Aquilla Wren, Inventory and Appraisement of the Personal Estate of Aquilla Wren, Inventory of the Real Estate of ... Aquilla Wren, Aquilla Wren probate file.

      39. Clarissa Wren's fourth exception had some validity because Aquilla Wren was a well-known businessman and civic leader. Juror John Coyle had served as a county commissioner with Wren in 1832. Juror Samuel T. McKean had served as a county commissioner with Wren in 1836. Aquilla Wren named juror William S. Moss as the executor of his will. See Drown, Peoria Directory for 1844, 28; Will, Aquilla Wren probate file. Lincoln's bill of exceptions appears in Circuit Court Transcript, 13 November 1844, Wren v. Moss et al., LPAL.

      40. "An Act Respecting Divorce," 22 February 1819, Laws of the State of Illinois (1819), 35-37; "An Act Concerning Divorces," 31 January 1827, Revised Code of Laws of Illinois (1827), 181-83; "An Act Amending the Law Concerning Divorces," 4 December 1833, Revised Laws of Illinois (1833), 234-35.

      41. Decrees, 16 October 1844, Wren v. Moss et al., LPAL; Bill of Exceptions, 16 October 1844, Wren v. Moss et al., LPAL.

      42. Halsey O. Merriman (1815-54) was an attorney from Peoria County. From 1840 to 1844 he had been Norman H. Purple's partner. See Peoria Register and Northwestern Gazette, 9 April 1840; Peoria Democratic Press, 28 February 1844; Peoria (Ill.) Weekly Republican, 31 March 1854.

      43. Order, 20 December 1844, Wren v. Moss et al., LPAL; Assignment of Errors, 20 December 1844, Wren v. Moss et al., LPAL; Motion, 20 December 1844, Wren v. Moss et al., LPAL; Affidavit, 20 December 1844, Wren v. Moss et al., LPAL.

      44. Wren v. Moss et al., 6 Ill. 560 (1844). For American attitudes toward property see generally James W. Ely, Jr., The Guardian of Every Other Right: A Constitutional History of Property Rights (New York: Oxford University Press, 1992), 59-81; William B. Scott, In Pursuit of Happiness: American Conceptions of Property from the Seventeenth to the Twentieth Century (Bloomington: Indiana University Press, 1977).

      45. Order, 24 December 1844, Wren v. Moss et al., LPAL; Order, 26 December 1844, Wren v. Moss et al., LPAL.

      46. Jesse B. Thomas Jr. (1806-50) was admitted to the bar in Springfield in the late 1820s. In 1835 he was appointed as the attorney general for the State of Illinois. He became a justice of the Illinois Supreme Court in 1843 and served until he resigned in August 1845. He was reappointed to the court in January 1847 and served until the reorganization of the court in December 1848. He later moved to Chicago and practiced law there. See Palmer, Bench and Bar of Illinois, 1: 44, 177; 2: 1094; Frederic B. Crossley, Courts and Lawyers of Illinois, 3 vols. (Chicago: American Historical Society, 1916), 1: 338.

      According to an 1827 law, if a court decreed a divorce for the fault or misconduct of the wife, "she shall forfeit her dower." Furthermore, "if a wife voluntarily leave her husband and commit adultery, she shall be forever barred her dower, unless her husband be voluntarily reconciled to her, and suffer her to dwell with him" ("An Act for the Speedy Assignment of Dower, and Partition of Real Estate," 6 February 1827, Revised Code of Laws of Illinois [1827], 185).

      47. Order, 18 December 1845, Wren v. Moss et al., LPAL; Wren v. Moss et al., 7 Ill. 72 (1845).

      48. Wren v. Moss et al., 7 Ill. 72 (1845); Carr v. Callingham, 3 Litt. 377 (1824). Illinois justices William Wilson, Thomas C. Browne, Samuel D. Lockwood, Samuel H. Treat, John D. Caton, and Gustavus P. Koerner joined Walter B. Scates in the majority opinion. Richard M. Young dissented, and Norman H. Purple recused himself.

      49. Wren v. Moss et al., 7 Ill. 72 (1845).

      50. Order, 29 December 1845, Wren v. Moss et al., LPAL; Petition for Rehearing, December term 1845, Wren v. Moss et al., LPAL.

      51. Order, 10 January 1846, Wren v. Moss et al., LPAL; Affidavit, 10 January 1846, Wren v. Moss et al., LPAL; Order, 12 January 1846, Wren v. Moss et al., LPAL.

      52. Peoria County Marriage Records, Peoria County Clerk's Office, Peoria, Ill.; Marriage Licenses Issued in Peoria County, 1825-1860 (Peoria, Ill.: Peoria County Historical Society, n.d.); Orders, 16 December 1846, Wren v. Moss et al., LPAL; Aquilla Wren probate file. In October 1851 Wren's estate remained only partially settled. John T. Lindsay, the third administrator of the estate, petitioned the probate court to allow him to sell the remaining real property in the estate and distribute the proceeds among the estate's creditors.

      53. In Myers v. Myers (1860-61) the defendant committed suicide after her husband refused to reconcile. The two cases in which the wife received alimony were Brown v. Brown (1841) ("upon the voluntary offer of the complainant," $500 in real estate in lieu of alimony) and Rogers v. Rogers (1838-39) ($126 and semiannual payments of $39). See Myers v. Myers, Brown v. Brown, and Rogers v. Rogers, LPAL.

      54. Amaziah Hart probate file, #766, Peoria County Probate Case Files, Illinois Regional Archives Depository, Western Illinois University, Macomb, Ill.; Tazewell County Marriage Records, p. 147, Tazewell County Circuit Court, Pekin, Ill.; David C. Perkins, comp., Tazewell County Illinois Marriage Records Index, 1827-October 1859 (Pekin, Ill.: Tazewell County Genealogical Society, 1982), 53. Clarissa Hart became the administratrix of Amaziah Hart's estate on October 23, 1847. When she remarried in the spring of 1848, her husband, Sanford H. White, became a coadministrator of Hart's estate.

      55. Census Office, Seventh Census (1850), Peoria County. Most of this property was probably her dower from Aquilla Wren's estate, because Sanford and Clarissa White sold Amaziah Hart's real property on July 28, 1849, to pay the debts of his estate. Clarissa White received at least $822.55 from Amaziah Hart's estate, but most of it was personal property in the form of livestock ($245), provisions ($200), or household items ($118.50). She received $106.30 in cash but no real property. See White & White, administrators of Hart v. Hart et al., May term 1849, Peoria County Circuit Court, Peoria, Ill.; Amaziah Hart probate file.

 

 

 

 

 

 

 

 

 

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