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. _In Savage Countries._
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.”
FOOTNOTES:
[719] Moncelon, _Réponses au Questionnaire de Sociologie_, in _Bull. de
la Soc. d’anthrop._, 1886.
[720] Campbell, _Hist. Univ. des Voy._, t. xxix. p. 343.
[721] Burchell, _ibid._ t. xxvi. p. 479.
[722] Schweinfurth, _The Heart of Africa_, vol. ii. p. 27.
[723] Laing, _Hist. Univ. des Voy._, t. xxviii. p. 107.
[724] Brodie Cruikshank, _The Gold Coast_.
[725] Bowdich, _Hist. Univ. des Voy._, t. xxviii. p. 425.
[726] M. Radiguet, _Derniers Sauvages_, p. 179.
[727] _Revue de l’Orient_, 1844.
[728] Moerenhout, _Voy. aux îles_, etc., t. ii. p. 62.
[729] Freycinet, _Hist. Univ. des Voy._, t. xviii. p. 82.
[730] Bancroft, _loc. cit._, vol. i. p. 81.
[731] Beniouski, _Hist. Univ. des Voy._, t. xxxi. p. 410.
[732] J. O. Dorsey, _Omaha Sociology_, Smithsonian Institution, 1885.
[733] L. Morgan, _Ancient Societies_.
[734] Bancroft, _loc. cit._, vol. i. p. 412.
[735] _Id._, _ibid._ p. 512.
[736] _Id._, _ibid._ vol. ii. p. 672.
[737] A. d’Orbigny, _L’homme Américain_, t. ii. p. 211.
[738] _Id._, _Voy. pittor._, etc., p. 511.
[739] Bancroft, _loc. cit._, vol. i. p. 117.
[740] _Id._, _ibid._ vol. i. p. 241.
[741] _Id._, _ibid._ vol. ii. p. 261.
[742] _Id._, _ibid._ vol. i. p. 511.
[743] _Voy. à la Terre-ferme_, etc., t. I^{er.} p. 304.
[744] Dobritzhoffer, _An Account of the Abipones of Paraguay_, vol. ii.
p. 97.
[745] Bruce, _Hist. Univ. des Voy._, t. xxiii. p. 365.
[746] D’Abbadie, _Douze ans dans la haute Éthiopie_, pp. 100, 128.
[747] Annie Besant, _Marriage, as it was, as it is, and as it should
be_.
[748] Dupré, _Trois Mois à Madagascar_, p. 153.
[749] D. Cuny, _Journal de Voyage à Siout et à El-Obéid, en 1857-58_.
[750] Burckhardt, _loc. cit._
[751] Duveyrier, _loc. cit._ p. 429.
[752] Raffenel, _Voy. au pays des Nègres_, t. I^{er.} p. 355.
[753] Hanoteau et Letourneux, _Kabylie_, t. ii. p. 164.
[754] Hanoteau et Letourneux, _Kabylie_, t. ii. p. 178.
[755] _Id._, _ibid._ t. ii. p. 177.
[756] _Id._, _ibid._ t. ii. p. 177.
[757] _Id._, _ibid._ t. ii. p. 179.
[758] Hanoteau et Letourneux, _Kabylie_, t. ii. p. 181.
[759] _Id._, _ibid._. t. ii. p. 184.
[760] _Id._, _ibid._ t. ii. p. 159.
[761] _Id._, _ibid._ t. ii. p. 180.
[762] _Id._, _ibid._ t. ii. p. 173.
[763] _Id._, _ibid._ t. ii. p. 180.
[764] Hanoteau et Letourneux, _Kabylie_, t. ii. p. 182.
[765] _Id._, _ibid._
[766] _Id._, _ibid._ t. ii. p. 180.
[767] Koran, ii. 229, 230.
[768] Koran, ii. 229.
[769] _Ibid._ ii. 226, 242.
[770] _Ibid._ ii. 233.
[771] _Ibid._ ii. 228.
[772] _Ibid._ iv. 127.
[773] Meynier, _Études sur l’Islamisme_, pp. 168, 169.
[774] _Id._, _ibid._ p. 178.
[775] _Id._, _ibid._ p. 174.
[776] Meynier, _Études sur l’Islamisme_.
[777] _Id._, _ibid._ p. 174.
[778] Niebuhr, _Hist. Univ. des Voy._, t. xxxi. p. 330.
[779] Prescott, _Conquest of Peru_.
[780] _Id._, _Conquest of Mexico_, vol. i. p. 28.
[781] Turner, _Hist. Univ. des Voy._, t. xxxi. p. 437.
[782] Huc, _Voy. dans la Tartarie_, t. I^{er.} p. 301.
[783] Pauthier, _Chine Moderne_, p. 239.
[784] _Id._, _ibid._
[785] _Code of Manu_, ix. pp. 80, 81.
[786] _Ibid._ p. 77.
[787] _Ibid._ p. 83.
[788] _Ibid._
[789] Deuteronomy, ch. xxiv. ver. 1, 2.
[790] _Mischnah_ (third part).
[791] A. Weil, _La Femme juive_, _passim_.
[792] Goguet, _Orig. des Lois_, t. ii. p. 61.
[793] Demosthenes, _Against Aphobus_.
[794] _Id._, _Against Neera_.
[795] Euripides, _Melanippus_, Fr. 31 (quoted by Cavallotti).
[796] Lecky, _Hist. of European Morals_, etc., vol. ii. p. 287.
[797] Romulus, xxxv.
[798] Plutarch, _Demandes Romaines_, xiv.
[799] _Italie ancienne_ (_Univers pittoresque_), p. 487.
[800] _Ibid._ p. 488.
[801] _Italie ancienne_, p. 488.
[802] R. Cubain, _Lois Civiles de Rome_, p. 183.
[803] _Italie ancienne_, p. 487.
[804] Lecky, _loc. cit._, p. 352.
[805] _Id._, _ibid._
[806] Session xxiv., can. 17.
[807] Rambaud, _Hist. de la Civil. Franç._, t. I^{er.} p. 107.
[808] D’Arbois de Jubainville, Preface to _Hist. inst. primit._ of Sir
H. Maine.
[809] Klaproth et Gamba, _Hist. Univ. des Voy._, t. xlv. p. 435.
[810] M. Block, _Europe Politique et Sociale_, p. 216.