The laws are essentially the same in Pennsylvania, Virginia, North Carolina, South Carolina, Kentucky, and New York; in the latter State, of course, only as applicable to marriages contracted before the passage of the new bill. It is the same in all the States, with one or two Western exceptions; because the passage of a new law never annuls pre-existing contracts. In consequence, practice becomes contradictory and intricate; and most lawyers not only feel, but show, a great dislike to new laws on that account.
In regard to marriage and divorce, Kent says that the English practice was, not to grant divorce for unfaithfulness on the part of the husband; and the early settlers of Massachusetts made the same distinction, creating a difference at the very outset in the moral responsibility of the two, fatal alike to happiness and civilization.
In 1840, the policy of South Carolina continued so strict, that there had been no instance, since the Revolution, of a divorce pronounced by a court of justice, or an act of the legislature.
In Massachusetts, the law was, that divorce could only be had for criminality. In Vermont, New Jersey, Kentucky, Mississippi, and Michigan, divorce from "bed and board" may be had for extreme cruelty; and, in Michigan, for wilful desertion for three years.
In Indiana, it is rendered for any cause, at the judgment of the court.
In Illinois, divorce may be had for the usual causes, and for drunkenness or cruelty, or such other cause as the court shall think right; and, in such cases, the wife does not lose her dower. These differences in statute law indicate, one would think, a variety sufficient to test in time all the theories of reformers and experimentalists.
As to the consistency of the law, Poynter says,—
"It is singular to see a marriage annulled on account of the misspelling or suppressing of a name, which would be held valid against the lasting misery of the parties."
By cruelty is meant "reasonable apprehension of bodily hurt." Mere austerity of temper, petulance of manners, rudeness of language, a want of civil attention, even occasional sallies of passion, do not amount to that cruelty which the law can relieve. The wife must disarm her husband by the weapons of kindness!
I have shown you upon what estimate the general common law of the United States is based, as regards both property and divorce. It is needless to say that this estimate is very little to be preferred to that of older countries; but, when the reformers of our cause are tauntingly asked what good they have done, they may reply proudly, though they should point to the changes of legislation during the last ten years alone. Since 1850, the laws have been changed in at least nineteen States. The credit of this change should certainly rest with the men and women of this reform; for, in every State, its sympathizing friends helped to frame the new laws.