Chapter 24

[756]The wife is entitled to a divorce in this way when the husband (1) leaves her without support; (2) accuses her falsely of unfaithfulness; (3) refuses to acknowledge the child which she has borne him; (4) when he abandons the faith; or (5) fails in "marital duty":Hellwald,Die mensch. Familie, 409. But in practice little use is made of this form, the woman preferring instead to declare before the judge that she is in a condition of matrimonial "insurrection," by which means the husband is usually led to "repudiate" her:idem,loc. cit.

[757]The procedure by oath is allowed when the husband is persuaded, but cannot prove, that the wife is pregnant by another man; and the action must precede theaccouchement. The wife may take a similar oath that the husband's belief is unfounded:Hellwald,op. cit., 409.

[758]But other phrases, such as "Cover thee with thy veil," or "Seek another man," may be employed:Hellwald,op. cit., 409. Compare the three formulæ used in Algiers:Letourneau,op. cit., 297.

[759]Hellwald,op. cit., 410, 411; following especiallyVincenti,Die Ehe im Islâm, 22, 23. After the third divorce or declaration there is still a way in which the man can get his wife back when she, in due legal form, has married another man, and has been repudiated by him. This procedure is usually collusive by means of a "straw husband":Hellwald,loc. cit., citingEfendi,Türkische Skizzen, II, 15. In general seeUnger,Die Ehe, 48-50;Letourneau,op. cit., 289-99, on the triple declaration among Mohammedan peoples of Africa.

[760]These cases are discussed byPost,Familienrecht, 253-55;idem,Grundlagen, 269;idem,Afrikanische Jurisprudenz, I, 439-41;Letourneau,op. cit., 286 ff.;Westermarck,op. cit., 523, 524;Friedrichs, "Familienstufen und Eheformen,"ZVR., X, 251.

[761]On these so-called "Zeitehen" and "Ehen auf Proben," in addition to the references, chap. ii, p. 49, note 2, seePost,Familienrecht, 75-79;idem,Afrikanische Jurisprudenz, I, 321-23;Starcke,Primitive Family, 258-60;Westermarck,op. cit., 523, 524, who apparently includes these cases under the head of divorce for sterility. "Proof-marriages" are said even now to be customary in Yorkshire:Bunsen, inZFE., XIX, 376;Post,op. cit., 77; and a good example is afforded by the Scotch "hand-fasting" prevalent in the eighteenth century: "Two chiefs agreed that the heir of the one should live with the daughter of the other as her husband for a year and a day; if at the end of that time the woman had become a mother, or, at any rate, if she was pregnant, the marriage was regarded as valid, even if unblest by a priest;" otherwise the connection was dissolved:Starcke,op. cit., 260;Skene,The Highlanders of Scotland(London, 1837), 166.Cf.Tegg,The Knot Tied, 222, 223;Brand,Popular Antiquities, II, 87, 88;Bullinger,The Christen State of Matrimonye(1541), 48, 49;Wood,The Wedding Day, 113, 184, 185;Stiles,Bundling, 17, 19. For examples of temporary unions among the American Indians seeWestermarck,op. cit., 518, 519. Such marriages are found among the Winnebagoes:Thwaites, inWis. Hist. Coll., XII, 427.

[762]Westermarck,op. cit., 524:ap.Kolben,The Present State of the Cape of Good-Hope(London, 1731), I, 157. However, this rule may in practice have little meaning: seePost,Afrikanische Jurisprudenz, I, 435, who also cites Kolben.

[763]Dawson,Australian Aborigines, 33.

[764]For the impediments to matrimony, all of which are diriment, seeMöllendorff,Das chin. Familienrecht, 9-20.

[765]Möllendorff,Das chin. Familienrecht, 32. In China a man is legally incapable of adultery. If the husband slay either the man or the woman takenin flagrante delicto, he must do so on the instant; "though it is also allowable for the husband to kill the adulterer outside the house, if it be in chase. But if the husband first ties up the adulterer, and then kills him, he will be guilty of a transportable offence.... If the husband kills the wife afterwards, he will be liable to three years' transportation and 100 blows."—Alabaster,Chinese Criminal Law, 187, 188. If the paramour kills the husband, the wife is strangled, whether she knew of the crime or not, provided the husband has not consented to the adultery. Grace is shown the woman only "when the murder was sudden and unpremeditated;" but then only in case that she "fly to the rescue, and give the alarm, and do her best to bring the murderer to justice by denouncing him to the authorities."—Alabaster,op. cit., 194. The price of the guilty wife sold as a concubine falls to the state:Möllendorff, 32.

[766]The agreement, however, must be in good faith. Should the wife plan the divorce so as to form a punishable relation with another man, it is void, and the husband may retain the woman or sell her to another as in the case of unfaithfulness:Kohler, "Aus dem chin. Civilrecht,"ZVR., VI, 376.

[767]Möllendorff,op. cit., 32;Hellwald,op. cit., 380, 381;Alabaster,op. cit., 182 ff.;Grosse,Die Formen der Familie, 225 ff.;Katscher,Bilder aus dem chin. Leben, 90 ff.,passim.

[768]If he puts away his wife without just cause, he is to receive eighty blows with the bamboo and take her back:Wake,Marriage and Kinship, 232;Kohler,loc. cit., 375;Westermarck,op. cit., 523;Letourneau,op. cit., 300, 301;Doolittle,Social Life of the Chinese, I, 106, 107.According toTscheng-ki-Tong,China und die Chinesen, 55, barrenness is the only serious ground of divorce in China, and even of this little use is made, particularly by the aristocracy; but this view is not sustained by other evidence, divorce being frequent among the lower classes:Hellwald,op. cit., 380, 381.

According toTscheng-ki-Tong,China und die Chinesen, 55, barrenness is the only serious ground of divorce in China, and even of this little use is made, particularly by the aristocracy; but this view is not sustained by other evidence, divorce being frequent among the lower classes:Hellwald,op. cit., 380, 381.

[769]Kohler,loc. cit.On the other hand, the interpretation of these rules may often be "too elastic" in favor of the man. In one of the old Chinese books, according toWestermarck,op. cit., 524, 525, "when a woman has any quality that is not good, it is but just and reasonable to turn her out of doors.... Among the ancients a wife was turned away if she allowed the house to be full of smoke, or if she frightened the dog with her disagreeable noise": citingNavarette,An Account of the Empire of China(London, 1704), 73.

[770]According toAlabaster,op. cit., 190, "it would seem that the husband can claim no marital rights, if he has been for five years in exile, without writing to his family, and his wife has in the meantime married again, although the law is not clear."

[771]Kohler,loc. cit., 375, 376. The woman has also the right of divorce when the husband is a leper or becomes such after marriage; when he is impotent; and either party may claim the right when deceived by a false allegation in the marriage contract:Möllendorff,op. cit., 32, 33;Alabaster,op. cit., 182.See further on Chinese divorce and marriage,Legge,Life and Teachings of Confucius, 106,passim;Huc,Chinese Empire, II, 218-20, 262, 263;Wake,Marriage and Kinship, 229-35.

See further on Chinese divorce and marriage,Legge,Life and Teachings of Confucius, 106,passim;Huc,Chinese Empire, II, 218-20, 262, 263;Wake,Marriage and Kinship, 229-35.

[772]Kohler, "Studien aus dem japanischen Recht,"ZVR., X, 449.Cf.Wake,op. cit., 233, note;Westermarck,op. cit., 525;Hellwald,Die mensch. Familie, 383-86;Grosse,Die Formen der Familie, 228-31.

[773]Kohler, "Das Recht der Azteken,"ZVR., XI, 60;Klemm,Kulturgeschichte, V, 35. Among the Aztec Otomis the parties could separate after the first night; but, possibly, this is a case of proof-marriage; and in Michoacan the same rule prevailed, if they swore that they had not "seen one another":Kohler,loc. cit., 61. The divorce laws of the Chins or Khyengs, in farther India, are particularly interesting; and in some respects they are similar in principle to those of the Chinese and Aztecs:Kohler, "Das Recht der Chins,"ZVR., VI, 186 ff., 191 ff.

[774]Cf.Spencer,Principles of Sociology, I, 722, 723;Mason,Woman's Share in Primitive Culture, 229, for suggestive remarks in this connection.Westermarck,op. cit., 526-29, discusses this topic with characteristic minuteness, giving in a note a list of peoples, with authorities, among whom the wife has the right of divorce absolutely or on conditions.

[775]So in Tahiti, the Sandwich Islands, the Marianne and Caroline groups, the Indian Archipelago, in Africa, and elsewhere; see the examples of free divorce at the option of either party and the authorities already mentioned above.Cf.Letourneau,op. cit., 287.

[776]Bancroft,Native Races, I, 277.

[777]Ibid., 412;Morgan,Ancient Society, 454 (Iroquois);Letourneau,op. cit., 288.

[778]Westermarck,op. cit., 527:ap.Schoolcraft,Indian Tribes, IV, 223 ff.

[779]Westermarck,op. cit., 527:ap.Schoolcraft,Indian Tribes, IV, 214. But it appears to be a point of honor for the abandoned husband to avenge himself by killing someone:Bancroft,op. cit., I, 512;Letourneau,op. cit., 288.

[780]Westermarck,op. cit., 527.

[781]Bancroft,op. cit., II, 672;Letourneau,op. cit., 288.

[782]So among the Santals (Dakotas):Letourneau,loc. cit.

[783]For this class of peoples seePost,Familienrecht, 250, 254-58;idem,Afrikanische Jurisprudenz, I, 436-39;Westermarck,op. cit., 526-29.

[784]Westermarck,op. cit., 527, 528:ap.Colquhoun,Amongst the Shans, 295.

[785]Westermarck,op. cit., 528:ap.Macdonald,Africana, I, 140.

[786]Westermarck,op. cit., 528, 529;Glasson,Le mariage civil et le divorce, 152 ff.;Unger,Die Ehe, 60;Plutarch'sLives(London, 1890), Solon, 68. Primitively the Grecian wife had little liberty in this regard; even later it was always difficult to enforce her right of divorce; and repudiation was regarded as a disgrace:Lecky,History of European Morals, II, 287, 289;Letourneau,op. cit., 304.

[787]Westermarck,op. cit., 528, 529;Waitz,Anthropologie, II, 389;Post,Afrikanische Jurisprudenz, I, 436. But in case of the Kafirs, the chief decides whether the woman has just cause:Post,op. cit., 438.

[788]"Wird die Frau misshandelt oder vernachlässigt, so kann sie die Lösung der Ehe verlangen; dies ist allgemeines Negerrecht."—Kohler, "Ueber das Negerrecht, namentlich in Kamerun,"ZVR., XI, 441, 442. See alsoHenrici, "Das Recht der Epheneger,"ibid., 135;Bastian,Rechtsverhältnisse, 179 (Gold Coast).

[789]Westermarck,op. cit., 528, 529:ap.Amír' Alí,Personal Law of the Mahommedans(London, 1880), chaps. xii ff."According to the Talmudic Law, the wife is authorized to demand a divorce if the husband refuses to perform his conjugal duty, if he continues to lead a disorderly life after marriage, if he proves impotent during ten years, if he suffers from an insupportable disease, or if he leaves the country forever."—Westermarck, 528;Glasson,op. cit., 149 ff. Consult alsoAmram,The Jewish Law of Divorce, 63-77, who gives an interesting discussion of the woman's power of divorce; and, besides the causes just named, mentions also "refusal to support," "apostasy," "wife-beating," when the wife is not at fault, and "false charge of ante-nuptial incontinence."Cf.Letourneau,op. cit., 303.

[789]Westermarck,op. cit., 528, 529:ap.Amír' Alí,Personal Law of the Mahommedans(London, 1880), chaps. xii ff.

"According to the Talmudic Law, the wife is authorized to demand a divorce if the husband refuses to perform his conjugal duty, if he continues to lead a disorderly life after marriage, if he proves impotent during ten years, if he suffers from an insupportable disease, or if he leaves the country forever."—Westermarck, 528;Glasson,op. cit., 149 ff. Consult alsoAmram,The Jewish Law of Divorce, 63-77, who gives an interesting discussion of the woman's power of divorce; and, besides the causes just named, mentions also "refusal to support," "apostasy," "wife-beating," when the wife is not at fault, and "false charge of ante-nuptial incontinence."Cf.Letourneau,op. cit., 303.

[790]For examples seePost,Familienrecht, 258;idem,Afrikanische Jurisprudenz, I, 452.

[791]Ibid., I, 452.

[792]Here the man divorces his wife by cutting in two a piece of "Rindenstoff, von dem er eine Hälfte behält und eine Hälfte dem Vater der Frau zuschickt."—Post,loc. cit.

[793]Möllendorff,Das chin. Familienrecht, 33;Post,op. cit., I, 452.

[794]Post,Familienrecht, 259.

[795]Post,Afrikanische Jurisprudenz, I, 453.

[796]In the Indian Archipelago a priest is necessary, for instance, on the islands of Gorong and Seranglao; among the Buginese; as also with the Makassars, where he receives 3 gulden for his trouble:Post,Familienrecht, 259, 260.

[797]So in case of divorce among the Omahas, where, asDorseybelieves, "father-right has succeeded mother-right," the woman cannot take the children with her if the man is unwilling; although in practice they "are sometimes taken by their mother, and sometimes by her mother or their father's mother."—"Omaha Sociology,"III. Rep. of Bureau of Eth., 225, 262.In China a divorce completely dissolves the marriage; the woman returns to her family, if it will receive her; the children remain with the father; and the purchase price is returned to him, unless his conduct has caused the divorce. When her family declines to receive the woman she becomessui juris:Möllendorff,Das chin. Familienrecht, 34.

In China a divorce completely dissolves the marriage; the woman returns to her family, if it will receive her; the children remain with the father; and the purchase price is returned to him, unless his conduct has caused the divorce. When her family declines to receive the woman she becomessui juris:Möllendorff,Das chin. Familienrecht, 34.

[798]See chap. i, 21 ff., above.

[799]Post,Familienrecht, 260-62;idem,Afrikanische Jurisprudenz, I, 447, 448;idem,Grundlagen, 276, 277.

[800]So in the Malay Rawas, where kinship is cognatic. Here, in case of an odd number, the undivided child is left temporarily with the mother, but the father has the right on the payment of the equivalent of 8 reichsthaler to claim the child when it no longer needs the mother's care:Post,Familienrecht, 261, 262.

[801]Krauss,Sitte und Brauch der Südslaven, 297.

[802]When the divorce is by common consent:Kohler, inZVR., VI, 172;Post,Familienrecht, 262. For African examples seePost,Afrikanische Jurisprudenz, I, 449.

[803]Pratz,Hist. de la Louisiane, II, 387.

[804]Krauss,Sitte und Brauch der Südslaven, 295, 296.

[805]Ibid., 295. Sometimes all the children go to the father or to the house-community, the mother receiving back the dotal gift:ibid., 296, 297.

[806]Post,Grundlagen, 277;idem,Afrikanische Jurisprudenz, I, 448 ff.;idem,Familienrecht, 262, 263.

[807]Thus in Morocco the husband who puts away his wife must keep the children;Post,Afrikanische Jurisprudenz, I, 449.

[808]Ibid., I, 448.Cf.Letourneau,L'évolution du mariage, 286.

[809]Post,Grundlagen, 276.

[810]So in Lika. In Stara Pazva the woman receives back her dotal portion; and in Stro[vs]inci common gains are divided:Krauss,op. cit., 295, 296;Post,Familienrecht, 316.

[811]In the archipelago of Seranglao and Gorong the lands and houses which each party had before the marriage are retained by each, and the winnings are divided, the man receiving two-thirds and the woman one-third:Post,loc. cit.

[812]Henrici, "Das Recht der Epheneger,"ZVR., XI, 135 (alimony). For many examples of these rules seePost,Familienrecht, 316-20;idem,Afrikanische Jurisprudenz, I, 441-47. Thus in Morocco, should the husband put away his wife without cause, he must give her in presence of the judge a present (etwas Beliebiges) in value to suit himself; and a similar present is adequate for either party divorcing the other among the Moorish Braknas. In the East African city of Harar the husband responsible for the separation loses the purchase price, pays the woman a sum equal to it in value, and besides is obliged to support her outside of his dwelling during a term to be fixed by thecadi:Post,Familienrecht, 320;idem,Afrikanische Jurisprudenz, I, 443, 445. In the South Slavonian Bocca, Crnagora, and Herzegovina the husband who puts away his wife because she is affected by a disease is usually required to give her a lifelong support; and ordinarily, when he is accountable for the separation, he must pay a fine of from 50 to 100 thaler:Krauss,op. cit., 567. For various illustrations seeLetourneau,op. cit., 289 ff.

[813]Thus, among the Moors of Morocco, who almost all practice monogamy, the man who rejects his wife is not permitted to marry again within four months:Post,Afrikanische Jurisprudenz, I, 450.

[814]Cf.the suggestion ofPost,loc. cit.

[815]See the examples enumerated inPost,Familienrecht, 264;idem,Afrikanische Jurisprudenz, I, 453; among them are the people of Tonga, Tahiti, and Unyoro; also Dawan (West Timor) when the divorce is through the fault of the husband.

[816]Post,Afrikanische Jurisprudenz, I, 450.

[817]Waitz-Gerland,Anthropologie, VI, 129;Post,Familienrecht, 263.

[818]Thus in the African Sarae the divorced woman must wait two months before remarriage:Munzinger,Ostaf. Studien, 387; among the Beni Amer, three months; while the Marea woman is obliged to refrain for a year:ibid., 241, 321.

[819]See especially on Arabian divorce,Smith,Kinship and Marriage, 91 ff., who emphasizes the effect of wife-purchase. ComparePost,Familienrecht, 263. Among the Kabyles of Algiers for mistreatment the woman has the right of "insurrection;" she may return to her father's house; but without the consent of her husband she cannot remarry:Letourneau,L'évolution du mariage, 295.Cf.Hanoteau et Letourneux,Kabylie, II, 159, 164, 177 ff. The custom of insurrection appears to be general in Islam:Hellwald,Die mensch. Familie, 409.

[820]Smith,op. cit., 93.

[821]Klemm,Kulturgeschichte, IV, 151;Post,Familienrecht, 263, 264.

[822]See the interesting proofs for various African tribes inPost,Afrikanische Jurisprudenz, I, 454-57.

[823]Ibid., 455. Sometimes, as among the equatorial tribes of West Africa, the widow shows a repugnance to second marriage: returning to her family, she never marries again:ibid., 456.

[824]Post,Familienrecht, 265;idem,Afrikanische Jurisprudenz, I, 453, 454.

[825]Thus in Dawan (West Timor), when peace is made between the divorced couple, the party who caused the separation must pay the parents of the other five swine and five pieces of linen. A year's interval must elapse with the African Peulhs of Futa-Jallon. In Unyoro (Africa) the reunion is celebrated by slaughtering a beef; and among the Berbers of Dongola the divorced man gives the woman two pieces of cotton stuff:Post,Familienrecht, 265;idem,Afrikanische Jurisprudenz, I, 453.

[826]Kohler, "Das Recht der Azteken,"ZVR., XI, 61;Cf.alsoKlemm,Kulturgeschichte, V, 35;Post,Familienrecht, 265.

[827]Starcke,Primitive Family, 258, 259.

[828]For examples seeFriedrichs, "Familienstufen und Eheformen,"ZVR., X, 251, 252.

[829]Divorce is rare among the Muskogi and Natchez (Florida-Dakota), the Caribs, the aborigines of Paraguay and Nicaragua, and the Eskimo:Friedrichs,loc. cit.;Westermarck,Human Marriage, 524.Cf.Powers,Tribes of Cal., 239 (Wintun);Dorsey,Siouan Sociology, 243 (rare in the better class).

[830]For China seeHellwald,Die mensch. Familie, 380, 381;Tscheng-ki-Tong,China und die Chinesen, 55;Wake,Marriage and Kinship, 232;Doolittle,Social Life of the Chinese, I, 106, 107;Medhurst, inTrans. Royal As. Soc., China Branch, IV, 27:Westermarck,op. cit., 525. For Japan seeWake,op. cit., 233;Westermarck,op. cit., 525; and for the Aztecs,Bancroft,Native Races, II, 263-65;Waitz,Anthropologie, IV, 132.

[831]Cf.the remarks ofWake,op. cit., 218; and compareRatzel,Hist. of Mankind, II, 434 (Zulus); andSarasin,Die Weddas von Ceylon, I, 458, 468, 469.

[832]Westermarck,op. cit., 531.

[833]Westermarck,op. cit., 19, gives examples.

[834]Westermarck,op. cit., 531, and the authorities cited in the notes. The same influence was a check upon divorce in Athens:Letourneau,op. cit., 304.

[835]On the conservative influence of wife-purchase seeWestermarck,op. cit., 532, 535, 536; and for curious and instructive illustrations of the effects of purchase read especially the detailed account of the law of divorce among the Kabyles of Algiers inLetourneau,op. cit., 292-96. The man has the sole right of divorce. As a condition of setting the woman free he may demand thelefdi, or price of redemption, and fix such other terms as he pleases; as that thelefdishall be double or triple, if she marry such or such a man. The sum may thus be so large as to amount to a prohibition of marriage. On the other hand, a liberal price may be an inducement to free the woman. Among some of these tribes the amount of thelefdiis fixed by law, usually at a sum higher than thethâmanth, or purchase price of a virgin or a widow, so as by working upon the cupidity of the husband to induce him to pronounce the triple formula and thus suffer the woman to contract a new marriage. The children under all circumstances follow the father.

[836]Mason,Woman's Share in Primitive Culture, 229, 230.

[837]Brunner,Rechtsgeschichte, I, 72, 73, and the sources there cited. The former existence of wife-capture among the Germans is also held bySiegel,Rechtsgeschichte, 450;Heusler,Institutionen, II, 280;Schulenburg,Die Spuren des Brautraubes, 10 ff.:Bernhöft,Frauenleben, 8 ff.;Lamprecht,Deutsche Geschichte, 97 ff., 107 ff.;SehlingUnterscheidung der Verlöbnisse, 29;Opet,Die erbrechtliche Stellung der Weiber, 16 ff.;Colberg,Ueber das Ehehinderniss der Entführung(Leipzig, 1869), 25.

[838]Dargun,Mutterrecht und Raubehe, 111-25, critically examines these passages. The fact that a marriage effected by rape or abduction is often treated as valid, even when the purchase price is not paid, is especially urged as evidence of the survival of customary wife-capture. Thus inÆthelberht, 82, 83;Ælf., 8;Æthelred, VI, 26, 39:Schmid,Gesetze, 9, 75, 231, 301, a penalty is exacted in such cases, though the marriage appears to be valid. But is it not simpler to explain this on grounds still familiar to all? The suggestion of the text seems to be sustained by the materials collected byWeinhold,Deutsche Frauen, I, 308-15.Cf.Jeaffreson,Brides and Bridals, I, 12-31.

[839]Beweddungeis the Anglo-Saxon term, and it is so used in the old English formulary of the tenth century:Schmid,Gesetze, Anhang, VI, 390. It means the act of "contracting" or "pledging," associated with the verbbeweddian, "to contract":Schmid, 535, 536. It has the same origin as the modern "wed," "wedding," etc. On thebeweddungseeSiegel,Deutsche Rechtsgeschichte, 450 ff.

[840]In early German law the "real contract" is the only contract recognized. There is no contract by mere convention, no "consensual" contract. Originally two-sided fulfilment was required. Thus, according toSohm,Eheschliessung, 24 ff., in case of betrothal, payment of the price and tradition of the bride went hand in hand. Later one-sided performance, or even a formal act, was deemed sufficient, and through it thetitlewas actually transferred; the purchaser thus acquiring the "negative" as opposed to the "positive" rights of property—the power to use and enjoy.Cf.Habicht,Altdeutsche Verlobung, 6, 7;Loening,Geschichte des deutschen Kirchenrechts, II, 577-79;Young, inEssays, 167;Lehmann,Verlobung und Hochzeit, 77;Friedberg,Verlobung und Trauung, 7, 8;Stobbe,Reuerecht und Vertragschluss nach älterem deutschem Recht(Leipzig, 1876).

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