CHAPTER XIV.
REPUDIATION AND DIVORCE.
I. In Savage Countries.—The right of repudiation in New Caledonia, among the Hottentots, the Bongos, the Soulimas, the Fantis, the Ashantees—Divorce in Polynesia—The right of repudiation in America.
II. Divorce and Repudiation among Barbarous Peoples.—In Abyssinia, at Hayti—The nefir of the Djebel-Taggale—Repudiation among the Bedouins and the Touaregs—Repudiation among the Kabyles—The “prevented” Kabyle woman—The “insurgent” Kabyle woman—Repudiation among the Arabs—Divorce among the Arabs—Obligatory divorce—Repudiation on account of non-virginity—Divorce by mutual consent in Peru and Thibet—Repudiation among the Mongols—Repudiation in China—Obligatory divorce in China—Repudiation in ancient India—Repudiation among the Hebrews—Repudiation in Greece—Evolution of repudiation and divorce in ancient Rome—Divorce and Christianity—Repudiation in barbarous Europe, in France, in the Middle Ages.
III. The Evolution of Divorce.
I have no longer to demonstrate that woman has been treated with extreme brutality among nearly all primitive peoples. In the lowest stage of savagery—as, for example, in Australia and Tasmania—woman, being exactly assimilated to a domestic animal, who can be beaten, wounded, killed, and even eaten, her association with man does not merit the name of marriage, and consequently there is no question among these races of divorce, nor even of repudiation. The man, being able, as master, to dispose of the life of his wife, has, in addition, the right to send her away, or abandon her, if he chooses.
In New Caledonia, where the stage of the most brutal savagery is past, where the wife is no longer carried off as in Australia, but bought from her legal owners, the dissolution of the conjugal union is still ill-regulated. The man can chase away or repudiate his wife. The couple can also part by mutual agreement, the children following sometimes the mother and sometimes the father; nothing is uniform.[719] But the purchase of the woman protects her already somewhat against murder. As she represents a capital, the husband often hesitates to kill her, or even to drive her away.
The Hottentots of the Damara tribe have on this point similar customs to the New Caledonians. They do not hesitate to send away the wives of whom they are tired, and whom they can replace.[720] In Caffraria the husbands have also every right, without exception, over the wives they have bought.[721] In middle Africa, which is much more civilised, divorce and repudiation are rather less simple, and often give place to restitutions or indemnities.
With the Bongos, in case of divorce, the father must give back a part of the utensils or fire-arms for which he had ceded his daughter. He is even forced to a total restitution, if the husband keeps the children while repudiating the wife. In the last case there is evidently an idea of indemnifying the husband for the charge he undertakes, and this view of the matter is not uncommon in Africa.[722] Among the Bongos marriage is considered as a simple commercial transaction; and it is the same in the whole of Central Africa, especially among the Soulimas, where the women have the power of leaving their husbands to unite themselves to another man, on the sole condition of returning to their husband-proprietor the sum that he has paid to purchase them from their parents. However, this rare and singular liberty is taken from them if they commit adultery. But even in this last case they are treated with relative mildness.[723] As we have previously seen, the same custom is observed among the Fantis of the Gold Coast, where the woman who quits her husband without a serious reason, taking her children with her, need only pay him a fixed indemnity—four ackies (twenty-two shillings and sixpence) for each child.[724] In the same way the Ashantees consider children a value worth keeping; thus their women can re-marry after a three years’ absence of their husband; and in case of the traveller’s return, it is the second marriage which holds good, only all the children that are his become the property of the first husband.[725] In fact, that equals an indemnity, since in Africa children are generally considered as a commercial value.
In Polynesia the conjugal bond could be untied, as it was tied, with the greatest ease. In the Marquesas Isles the husband and wife parted of mutual accord, in case of incompatibility of temper, and all was over; but if without his authorisation the wife deserted the conjugal hut to follow a lover, the husband watched for her and administered furious and repeated corrections.[726] At Hawaï the marriage was also dissolved at will, if the husband and wife were agreed on this point.[727] At Tahiti the unions were of the frailest; the husband and wife parted without ceremony, and the children were no obstacle, for by a previous agreement they were made over to one or other of the partners.[728] It was the same in the Caroline Isles, where, though the race was different, the customs were analogous, and married couples could divorce themselves at will.[729]
This fragility of marriages is common in savage countries. The man always has the right of repudiation, and very often the reciprocal right exists also. This fact seems even less rare among savages than it is later, at the middle period of the development of civilisation, when the patriarchal family is solidly established.
In North America, meaning, of course, savage America, the classic land of the matriarchate, man nevertheless enjoys nearly always the right of repudiation, often without limits; but certain tribes either admit divorce by mutual consent, or limit the right of repudiation, or recognise certain rights of the wife. The Malemoute Esquimaux drive away their wives at will,[730] as do also the Kamtschatdales, their congeners of Asia;[731] but, with the Esquimaux, hardly any but a free and capricious union is known; there is as yet no durable marriage. It is nearly the same in a certain number of American tribes, where divorce is easy at the will of the two parties. Among the Dakota Santals the wife who is ill treated by her companion has the right to retire; but she cannot take the children without the husband’s consent.[732] The marriage of the Iroquois, and of some other neighbouring tribes, was also broken by mutual consent. These Redskins lived in great common houses, each one inhabited by a fraction of the tribe, a gens, and consequently, that one of the divorced couple whose relations dominated in the gens, remained there; the other was forced to depart.[733] The Redskins of California also practised this easy and mutual divorce.[734] The Navajos still recognised the right of the wife to leave her husband, but already the masculine point of honour entered into play, and the deserted husband was obliged, under pain of ridicule, to revenge himself by killing some one.[735] At Guatemala the wife and husband could part at will and on the slightest pretext.[736] The Moxos of South America only regarded marriage as an agreement that could be dissolved by the will of the two parties.[737] But in many other Redskin tribes the right of divorce seems far from being reciprocal; it is replaced, to the detriment of the wife, by repudiation, which the husband can pronounce with a word. According to the Abbé Domenech, it is the fear of this terrible word which maintains an appearance of harmony among the many women in the interior of the Indian wigwams.[738] With the Chippeways a man takes or buys a girl of twelve, and sends her back when he is tired of her.[739] The Chinook husband can also repudiate his wife according to his caprice.[740] In a tribe of the Nahuas, the husbands enjoyed the same rights, but on condition of exercising them on the day after the marriage; the experimental union preceded the durable one.[741] In New Mexico, the husband repudiated at will, on condition only of restoring his wife’s possessions.[742] A single word of the Caribean husbands also sufficed to dismiss the wife.[743] The same rule is found with the Abipones also, where the husband can repudiate his wife on the slightest pretext.[744]
The conclusion to be drawn from all these facts is, that there are no more fixed rules for divorce than for marriage in savage societies. But, as the wife is more often bought or captured, it is quite natural that her owner should send her away at his pleasure. Wherever divorce is mutual, it is when the wife costs little to obtain, or where the ties of relationship are well defined between the members of her and her tribe, or her gens, who then think themselves bound to afford her a certain protection.
II. Divorce and Repudiation among Barbarous Peoples.
These free and fragile marriages are found in societies more civilised than those of the Polynesians and the American Indians. Bruce tells us that in Abyssinia marriage is in reality only a free union, without any sanction or ceremony; couples unite, part, and re-unite as many times as they like. There are neither legitimate nor illegitimate children. In case of divorce the children are divided; the girls belong to the father, and the boys to the mother.[745]
M. d’Abbadie affirms also that Abyssinian marriage is purely civil and always dissoluble; he adds that it is dotal, and co-exists, for rich men, with the concubinate.[746] It is quite certain that divorce is largely used in Abyssinia, since Bruce says he has seen a woman surrounded with seven former husbands. In Hayti, the only negro country that is civilised in European fashion, we find either preserved or instituted, by the side of legal monogamic marriage, free unions which recall the Roman concubinate. The persons thus paired are called “placed”; they suffer no contempt on this account, and their children have the same rights as those of persons legally married. There are at Hayti ten times more “placed” persons than married ones; they separate less often than the latter are divorced, and have better morals.[747] But in general the free union, or, what comes to the same thing, the power of divorce, left to the two united parties, is rare enough in countries more or less civilised. Most usually it is the husband who, even without any cause of adultery in the wife, has the right to repudiate her. It is thus, for example, at Madagascar, where, in order to repudiate his wife, a husband need simply declare his resolution to the magistrate who has received the notification of the marriage; it is only necessary for him to pay for the second time the hasina, or duty on marriage. When once he has declared his intention, the husband has still twelve days’ grace to retract it; but if he exceeds this delay the repudiated wife becomes her own mistress and free to marry again.[748]
In Kordofan, among the Djebel-Taggale,[749] the great legal motive for repudiation in all the primitive legislations, sterility, justified proceedings that were absolutely savage. The ceremony was called the nefir (drum or trumpet). A woman being apparently sterile, the husband, before repudiating her, called noisily together all his male relatives, who, after a feast, all had intimacy with the barren wife. If this heroic expedient did not result in pregnancy, the husband sold his wife by auction, agreeing to return to his obliging relatives the difference, if any, between the first price and the sum she would fetch in the auction. Extraordinary as this custom of nefir may seem to us, it is, apart from the final sale, but the repetition with more shamelessness of analogous practices in India, and even in ancient Greece, in case of well-proved sterility in the wife.
The Bedouins and the Touaregs in general have nothing comparable to the nefir of the Djebel-Taggale, but among them the extreme facility and excessive frequency of repudiations renders marriage nearly illusory. According to Burckhardt, repudiation is so common with the former that a man sometimes has fifty wives in succession.[750] With the Touaregs of the Sahara the wives themselves can demand divorce, and we have seen that they thus force their husbands to bend to monogamy, in spite of the Koran and of their polygamic appetites.[751] It seems that in certain of their tribes the women make it a point of honour to be often repudiated. Only to have one husband is, in their eyes, a humiliating thing, and they are heard to say: “Thou art not worth anything; thou hast neither beauty nor merit; men have disdained thee, and would have none of thee.”[752]
This is quite in accord with the laisser aller habitual to the primitive Berbers in regard to marriage. In this respect, however, our Kabyles of Algeria contrast with the other ethnic groups of their race. Their conjugal customs are most rigid; neither liberty nor libertinage exist for the wife amongst them. Their customs in regard to repudiation and divorce are consequently very curious, and are worth studying in detail. In Kabyle, marriage is treated literally as a commercial affair of the most serious kind, especially for the women, who are owned as things by their husbands. The customs and the Kanouns, however, forbid the exchange of wives, and the husband whose wife has fled from the conjugal dwelling is forbidden to sell the fugitive except to a man of the tribe, and even then he is not allowed to have the price.[753] Still, the Kabyle husband has preserved the right of repudiation, and this right he alone enjoys, and without restriction.
There are in Kabyle two kinds of repudiation. In one, the husband simply says, “I repudiate thee;” and he repeats this formula three times. The wife remains dependent on him until he sells her by means of a price of redemption. If he accepts from the father or some other man this price (lefdi) he must, when the sum is once counted out, declare before witnesses that he gives up all rights over his wife. Then, and only then, the marriage is dissolved.[754] Under the other form of repudiation the husband says, “I repudiate thee, and I put such a sum on thy head.” The formula is pronounced once, twice, and thrice. In this case the husband is irrevocably bound, and by paying the sum fixed, the wife has the power to marry again; at the same time, the husband can specify the conditions, can say, for example, that if the woman is married to such or such a man, the price of redemption will be doubled or tripled. Sometimes the sum is so great that it amounts to an absolute interdiction of any fresh marriage, and the woman is then designated “a prevented one” (thamaouok’t).[755] When the formula of repudiation has only been pronounced once or twice, the husband can, by means of a fine paid to the djemâa, and with the consent of the father-in-law, take back his wife; but he loses his reputation, and his testimony is no longer legal. If the formula has been pronounced three times, it is irrevocable. As for the other revocation, public opinion does not admit that it may be revocable, unless it has only been declared once, and that the husband find a priest who will consecrate a fresh union.[756]
If, after repudiation, the Kabyle woman marries again, and becomes a widow, the first husband can retake her without repayment and without a fine.[757]
Without pronouncing the formula of repudiation, the Kabyle husband has the power to send his wife back to her family, with the consent of the said family. If the husband has serious reasons of displeasure he sends her to her parents without forewarning them, mounted on an ass, and conducted by a servant or a negro. This treatment is so ignominious for the wife that it is equal to repudiation, and public opinion then forbids the husband to take her back. Sometimes, in case of proved adultery, the husband sends the wife back to her family, after having shaved her head; the guilty one is then for ever dishonoured, and however beautiful she may be, she never finds another husband.[758]
In case of repudiation, for any motive whatever, the Kabyle husband has the right to keep all his children, girls and boys, even those at the breast.[759] As for the repudiated woman, she always returns to her parents, and it is to these last that a man must apply to marry her; but the new marriage cannot be concluded until after the payment to the first husband of the price of the redemption (lefdi), which is sometimes more, sometimes less, than the thâmanth, or price of the first acquisition. Generally, too, the parents profit by the opportunity to claim a supplement, or gratification. The father often agrees first with the husband, reimburses him for the thâmanth, and afterwards negotiates his daughter as he pleases. In a certain number of tribes the husband can directly sell his wife, but Kabyle morality reproves this practice,[760] and permits the wife in that case to retire to her father, where she remains “prevented” (thamaouok’t); however, if the father is powerful, he risks sometimes marrying his daughter, and the tribe at need stands by him.[761] In any case, the repudiated Kabyle woman can only marry after a delay (aidda), generally of four months,[762] which is conformable to the prescriptions of the Koran. If she flees the country, the parents must restore to the husband the thâmanth or lefdi, for this last can no longer gain them a new suitor.[763] The whole of this régime is very partial to the husband. However, as public opinion in Kabyle is sovereign, it has decreed a few protective measures for woman, recalling from afar the proverbial liberality of the Berbers in conjugal matters. Thus, though the woman is deprived of the right of divorce, she is allowed a “right of insurrection” if she has just complaints to make. In this case she begins by telling one of her relatives, who fetches her back to her father openly, the husband not being permitted to oppose; it remains to him either to repudiate the fugitive or to let her be a “prevented one.” It is understood that custom protects an “insurgent” wife only when she takes refuge with her relatives.[764] Some tribes have tariffed the thâmanth; and in case of repudiation the husband can only exact or receive the ordained sum. As for the tariff of the repudiated woman, it is nearly always more than the thâmanth, or price of the virgin and the widow. This is done counting on the avidity of the husband, to urge him to permit a fresh marriage.[765] Lastly, it is the rule that after four years’ absence on the part of the husband the union is dissolved and the woman is free.[766] This is a wise law which certain European codes might borrow with advantage from Kabyle legislation.
It is a veritable godsend for scientific sociology to be able to know in its minute details all this curious regulation of Kabyle marriage. Too often we are forced to content ourselves, in regard to savage or barbarous peoples, with general assertions that have to be completed as well as may be from accounts that are incoherent, sometimes contradictory, and always fragmentary. Here we possess a whole barbarous code, quite an assemblage of old Berber customs, which are more or less confounded with the precepts of the Koran.
The law of Mahomet itself is only a sort of compromise between the ancient customs of Arabia and the Biblical precepts relating to marriage. On certain sides the Arab customs are superior to the severity of the Kabyle kanouns, but on others they are inferior to them, as, for example, in not affording to the wife the right of “insurrection.”
It is necessary to distinguish between the text of the Koran and practice, which has notably departed from it—sometimes for the better, sometimes for the worse. The Koran leaves to the husband the absolute right of repudiation. It orders that if the formula of repudiation has been pronounced three times, the husband cannot take back the wife until she has been married to another; it permits him to do it, therefore, in the contrary case.[767] It specifies that the repudiated wife should have a sufficient maintenance provided for her, and that the husband should not keep the dower she brought with her;[768] that the husband should have four months’ grace to retract his decision;[769] that if the repudiated wife is suckling an infant, the husband, or, in his default, the next heir, should supply her needs during the two years that the suckling should last.[770]
The Koran orders repudiated wives not to re-marry before three menstrual periods, not to dissimulate their pregnancy, “if they believe in God and in the day of judgment;” and in the last case it advises the husbands to take them back.[771] Lastly, the law of Mahomet encourages amicable arrangements, and these by money payments between ill-assorted couples; it authorises the husband to sell a divorce to his wife for a cession, with her consent, of a portion of her dowry.[772] This is what the texts, which are both legal and sacred, declare: this, then, is the theory. We will now see what is the practice as regards repudiation and divorce in Algeria at the present time.
There are three graduated formulas of repudiation: first, the discontented husband says simply to the wife, “Go away,” and if he has only said it once or twice, he may retract his decision; second, but if he has said, “Thou art to me as one dead, or as the flesh of swine,” it is forbidden to take back the repudiated wife until she has been married to another, and then repudiated or left a widow; lastly, there is a formula so solemn that it entails a separation for ever; it is this, “Let thy back be turned on me henceforth, like the back of my mother.”[773]
Any one of these senseless reasons, which have often the force of law with unenlightened races, can be set aside, and the repudiation counted null when it has been pronounced during a critical period of the woman.[774] The woman with child, on the contrary, can be repudiated, but she has a right to an “allowance during pregnancy.”[775] Actual custom also admits voluntary divorce, at the proposal of the wife, for a redemption paid by her to her master. Sometimes the initiative comes from the husband, who, knowing that his wife desires her liberty, says to her, “I repudiate thee, if thou givest me this pallium of Herat, or this horse, or this camel,” etc. It is then a sort of divorce by mutual consent, and the two part as good friends.[776]
Lastly, there is obligatory divorce, pronounced by the Cadi, on the plaint of the woman, when the husband is impotent, when in spite of these matrimonial conventions he tries to compel the woman to quit the house of her parents, or when he has corrected her with excessive brutality.[777] Then the divorced wife goes away, taking her dowry with her.
Taken altogether, these customs, while conforming to the spirit of the Koran, have in a certain measure improved the position of the married woman. This is because progress is the law of the social as well as the organic world; more or less slowly, more or less quickly, it ends by modifying in practice even theocratic legislations, which are the most rigid of all. But the old customs are still found almost intact in certain districts of Arabia which have remained more or less completely isolated. Thus in nearly all Arab countries there is one especial reason which justifies immediate repudiation of the marriage, and that is the absence of virginity, when it has been affirmed in the agreements preceding the union. But in Yemen this circumstance justifies far more than mere repudiation; it excuses the murder of the bride;[778] it is a practical return to the old law preserved in the Bible ordering the guilty woman to be stoned.
After the manner of all barbarous legislations, that of Mahomet has corrected, or at least tried to restrain, certain especially ferocious customs; but, on the other hand, it has given the force of law to some particularly crying abuses, and has thus rendered them more difficult of redress. This is generally the case. In all barbarous societies the subjection of woman is more or less severe; customs or coarse laws have regulated the savagery of the first anarchic ages; they have doubtless set up a barrier against primitive ferocity, they have interdicted certain absolutely terrible abuses of force, but they have only replaced these by a servitude which is still very heavy, is often iniquitous, and no longer permits to legally possessed women those escapes, or capriciously accorded liberties, which were tolerated in savage life. We shall have to prove this fact more than once in continuing our ethnographic study of divorce in barbarous societies.
In ancient Peru the liberal and reasonable custom of divorce by mutual consent was adopted.[779] At Quito, at least, where marriage was not civil and obligatory, the married pair had the power of separating by mutual accord.
In Mexico divorce was merely tolerated. Before being allowed to break the conjugal tie, the couple were obliged to submit their differences to a special tribunal, which, after a minute examination of the facts, and three hearings of the parties, sent them away without pronouncing judgment, if they persevered in their design.[780] The tribunal could, it seems, forbid the separation, but it did not expressly authorise it. Its silence, however, equalled a sentence of divorce.
This luxury of legality, this pretence of placing the conjugal union out of reach of the caprice or injustice of one of the parties, can only be met with in societies already advanced in organisation.
In lamaic Thibet, where marriage is a simple civil convention, with which the theocratic government of the country does not interfere, marriages are dissolved, as they are made, by mere mutual consent; but this consent is necessary, and there only results a separation analogous to ours, and taking from the separated couple the power to re-marry.[781] With the nomad Mongols we find, in spite of a relative civilisation, the absolute right of repudiation left to the husband alone, as it is in savage countries. The Mongol husband who is tired of his wife, whom, besides, he has purchased, can send her back to her parents without giving the least reason; he simply loses the oxen, sheep, and horses that he has paid for her. On their side, the parents make no difficulty of taking her back, for they have the right to sell her again. The Mongol wife can also spontaneously quit her husband; but this is not so simple a matter, because she represents a value. It is a capital that has fled; therefore the parents must send her back four times following to the husband-proprietor. If the latter persists in not receiving her, the marriage is dissolved, but in that case the parents must restore a part of the cattle previously paid by the marital purchaser.[782] In short, repudiation and divorce are considered in Mongolia entirely as commercial transactions, and always arranged for the advantage of the husband.
The Chinese have regulated this still quite primitive divorce, and while leaving to the husband the right of repudiation, they have carefully specified the conditions of it.
A Chinese husband can repudiate his wife for adultery, sterility, immodesty, disobedience to her father and mother or to him, loquacity or propensity to slander, inclination to theft, a jealous disposition, or an incurable malady. These motives, however, no longer suffice when the wife has worn mourning for her father-in-law or her mother-in-law; when the family has become rich in comparison with its former poverty; and lastly, when the wife has no longer a father or mother to receive her. If, heedless of these interdictions, the husband repudiates his wife all the same, he becomes liable to receive eighty strokes of bamboo, and must take her back.[783] To the husband alone belongs the right of repudiation, but the law admits divorce by mutual consent. On the other hand, it has taken good care to consecrate the servitude of the wife by ordering that if she flees from the conjugal abode when the husband refuses a divorce, she shall be punished by a hundred strokes of bamboo, and may be sold by her husband to any one willing to marry her.[784] Chinese legislation absolutely refuses the “right of insurrection” to the wife, which the Kabyle Kanouns, rigorous as they are to women, have granted. For divorce, as for everything else, China is at the stage of mitigated or humane barbarism. The foundation of her laws has remained savage, but a less ancient spirit has attempted to modify their severity. It has limited the right of repudiation, at first in the power of the master; it has specified the impediments; lastly, it has sanctioned divorce by mutual consent, which still terrifies our legislators.
Ancient India had also left the right of repudiation to the husband, but she had no place for divorce in her legislation, and had imposed no restriction on the good pleasure of the husband if there existed one of the cases enumerated by the Code:—“A wife given to intoxicating liquors, having bad morals, given to contradicting her husband, attacked with an incurable disease, as leprosy, or who has been spendthrift of his wealth, ought to be replaced by another.” “A sterile wife ought to be replaced in the eighth year; the wife whose children are all dead, in the tenth year; the wife who only bears daughters, in the eleventh; the wife who speaks with bitterness, instantly.”[785] “For one whole year let a husband bear with the aversion of his wife; but after a year, if she continues to hate him, let him take what she possesses, only giving her enough to clothe and feed her, and let him cease to cohabit with her.”[786]
Here it is no longer a question of divorce by mutual consent, nor of protective measures for the wife. If she is legally replaced without being repudiated, and then if she abandons with anger the conjugal abode, she must be imprisoned or repudiated in the presence of witnesses.[787] The prolonged absence of the husband does not set free the wife, even when she has been left without resources. She must patiently await the return of the absent master, during eight years if he is gone for a pious motive; six years if he is travelling for science or glory; three years if he is roaming the world for his pleasure. When these delays have expired, the deserted one is none the less married; she has only the power to go to seek the traveller.[788]
Like the writers of the Code of Manu, those of the Bible have thought very little of the rights of woman in legislating on divorce and repudiation.
The book of Deuteronomy, very accommodating for the husband, authorises him to repudiate his wife “when she find no favour in his eyes, because he hath found some uncleanness in her;” he has only to put a “letter of divorce” in her hand, and may not take her again, either if she is repudiated by another husband or becomes a widow.[789] With much stronger reason a man can repudiate an immodest wife.[790] As for the wife, she could only demand a divorce for very grave causes: if the husband was attacked by a contagious malady (leprosy); if his occupations were too repugnant; if he deceived her; if he habitually ill-treated her; if he refused to contribute to her maintenance; and if, after ten years of marriage, his impotence was well established, especially if the woman declared she needed a son to sustain her in her old age.[791] But even then it was the husband who was reputed to have sent away his wife, and she lost her dowry.
All these antique legislations bear on the woman with shameful iniquity. The most humane have confined their efforts to placing a few slight restrictions on the brutal good pleasure of man, which nothing holds back in savage societies. But it is important to notice that certain tribes, still more or less buried in savagery, have regulated divorce with humanity enough and equity enough to put to shame the theocratic legislators of the great barbarian societies.
We discover again this iniquitous spirit in regard to the respective situations of the man and the woman in marriage in the Greco-Roman world, but it becomes moderated as ancient civilisation progresses. In primitive Greece the right of repudiation is left to the man, and he uses it whenever he thinks he has legitimate motives for doing so.[792] This right continued in more civilised Greece, but it was gradually restricted. Nevertheless, it was always a great dishonour for a woman to be repudiated. Euripides makes Medea say, “Divorce is always shameful for a woman.” In Andromachus, Menelaus, speaking of his daughter Hermione, said: “I will not that my daughter should be driven from the nuptial bed; save that, all that a woman can suffer is relatively without importance; but for her to lose her husband is to lose her life.” At Athens repudiations were frequent, and they would have been more so if considerations of interest had not often hindered the good pleasure of the master. He was obliged, in fact, by the conditions of the law, in repudiating his wife, to restore her dowry, or pay interest at the rate of nine oboles.[793] Moreover, the relatives who were guardians of the woman could claim by law a pension for her maintenance.[794] A personage of Euripides cries mournfully: “The riches that a wife brings only serve to make her divorce more difficult.”[795] However, the right of divorce was recognised for women, but custom held the laws in check by rendering it difficult for wives to perform any public action, and by imposing on them the confinement of the gyneceum.[796]
At Rome divorce evolved more rapidly and more completely than in Greece. In primitive Rome we see at first, as usual, the right of repudiation allowed to the husband and forbidden to the wife. “Romulus,” says Plutarch, “gave the husband power to divorce his wife in case of her poisoning his children, or counterfeiting his keys, or committing adultery, and if on any other account he put her away she was to have one moiety of his goods, and the other was to be consecrated to Ceres.”[797] The Roman husband could also put away his wife for sterility.[798] He was, however, obliged to assemble the family beforehand for consultation. If the marriage had been contracted by confarreation it had to be dissolved by a contradictory ceremony, diffarreation.[799] In the ancient law, when the crime of the woman led to divorce, she lost all her dowry. Later, only a sixth was kept back by adultery, and an eighth for other crimes.[800] At length divorce by consent (bonâ gratiâ) was introduced in spite of the censors; and then both parties had liberty of divorce, only with certain pecuniary disadvantages for the husband whose fault led to the divorce. Thus the adulterous husband lost advantage of the terms which usage accorded for the restitution of the dowry. In the last stage of the law the guilty husband lost the dowry, or the donatio propter nuptias. Inversely, if the wife divorced without a cause, the husband retained a sixth of the dowry for each child, but only up to three-sixths.[801] The formula of the Roman repudiation recalls by its energetic conciseness the Kabyle formula, and it seems especially to relate to the property: Res tuas habeto.[802] The wife, even though subjected to the manus, obtained at last the power of divorce, by sending the repudium to her husband, who was then forced to set her free from the manus.[803] In short, divorce became in time very easy. Cicero repudiated his wife Terentia in order to get a new dowry. Augustus forced the husband of Livia to put her away, although she was with child. Seneca speaks of women counting their years, not according to the Consuls, but to the number of their husbands. Juvenal quotes a woman who was married eight times in five years. St. Jerome mentions another who, after having had twenty-three husbands, married a man who had had twenty-three wives.
Constantine, humbly obedient to the Christian spirit which had invaded his base soul, restricted the cases of divorce to three for each spouse, but always admitted mutual consent, and under Justinian the full liberty of divorce reappeared in the Code.[804]
From its origin Christianity combatted the morals called pagan, which name even was a reproach. Abandoning the modest reality, it lost anchor from the first, and was drowned in a sea of dreams. Marriage, instead of being simply the union of a man and a woman in order to produce children, became mystic; it was the symbol of the union of Christ with his church; it was tolerated only, and the church especially condemned divorce. Nevertheless, custom and good sense held out a long time against ecclesiastical unreason, and it was very slowly, in the twelfth century only, that the civil law prohibited divorce.[805] St. Jerome had allowed, as did afterwards the Christians of the East, that adultery broke the bond of marriage as well for the woman as the man, which is simply just; but this sentiment was condemned and anathematised by the Council of Trent,[806] which thus returned, contrary to the opinion of Papinian and the ancient jurists, to savage customs, which make the wife the slave, and not the companion, of her husband.
Among the Germans and the Scandinavians, the man alone had the right of repudiation according to the almost universal usage of barbarous peoples; however, divorce by mutual consent was tolerated.[807] The Salic law also permitted divorce, and we find in Marculphus the form of an act of divorce by mutual consent. “The husband and wife, such and such a one, seeing that discord troubles their marriage and that love does not rule in it, have agreed to separate, and leave each other mutually free, without opposition from either party, under pain of a fine of one pound.”
The pagan Irish had rendered divorce useless by instituting marriages of one year, at the end of which the wife could be repudiated by the temporary husband and even ceded to another for a fresh year. These experimental marriages were made or unmade, sometimes on the first of May, and sometimes on the first of November of each year.[808]
Repudiations at the will of the husband are still in use among the Tcherkesses of the Caucasus, whose customs have more than one feature in common with those of our ancestors of barbarous Europe. With them the husband can repudiate in two manners: either by sending away his wife in the presence of witnesses, and leaving the dowry to the parents, which implies the liberty to marry again for the repudiated wife; or by simply driving the wife away, and then he can recall her again during one year.[809]
In France, under the two first races, the man could put away the woman; he could even, which is more rare and original, repudiate his family, and leave it, after a declaration before the judge, and this destroyed all rights of inheritance on both sides. Later, under the influence of the Catholic clergy, who by reason, no doubt, of their want of practical experience in the “things of the flesh,” claimed energetically the right of regulating all conjugal questions, a distinction was made between the separation of abode (quoad thorum) and complete divorce (quoad vinculum); the first only was permitted. The Church, always assuming to be immutable, maintained in theory the indissolubility of the sacramental marriage, and it needed the great movement of the French Revolution to shake for a moment the Catholic prejudice against divorce, which was incompletely re-established in our French code a few years ago. But the brutality of our ancient conjugal customs survives still, and they are not up to the level of our legislation, imperfect as that is. Many husbands always treat their wives as slaves, against whom everything is lawful, since in a hundred suits for separation or divorce there are ninety-one to ninety-three made by wives on account of cruelties and serious injuries.[810] Above all, our juries almost invariably acquit the husband who has murdered his adulterous wife. So difficult is it to “put off the old man.”
III. The Evolution of Divorce.
Our various researches on the subject of divorce have led us to nearly uniform conclusions. They all show us that, however dissimilar may be the countries or the epochs, the union of man and woman begins, with very rare exceptions, by the complete slavery of the latter, and her assimilation to domestic animals, over which man has all possible rights, a fortiori that of driving away. Then as the ages move on their course we see societies which become by degrees civilised, and in proportion to this advance the condition of the woman improves. At first the man could kill her if she displeased him; then, cases of adultery apart, he contented himself with repudiating her; next, the severity of this right of repudiation, at first unlimited, was mitigated; then it was restricted to certain well-defined cases; some rights were even granted to the repudiated woman. At length her own right was recognised to seek divorce in order to escape from intolerable treatment. At last a return was made to divorce by mutual consent, which had been allowed in a good number of primitive societies, before a rigid legislation, generally theocratic, had crystallised, in codifying them, some of the old barbarous customs. The Catholic prejudice itself, absurd as it was in regard to marriage, became humanised by time. Doubtless the Church continued in principle to condemn divorce, but she allowed a good number of cases of nullity of marriage, undoing thus with one hand what she attempted to build up with the other, and, willingly or not, compounding and compromising with “the world.”