Chapter V: Early History of Divorce

[BIBLIOGRAPHICAL NOTE V.--For the law and custom of divorce
among uncivilized peoples the best analysis and the most
painstaking classifications are given by Post in his
_Entwicklungsgeschichte des Familienrechts_ and the first volume
of his _Afrikanische Jurisprudenz_, supplemented by the more
general notices contained in his various other writings. The
subject is also well treated, with the usual minute citation of
authorities, in the twenty-third chapter of Westermarck's _Human
Marriage_. The fourteenth chapter of Letourneau's _L'évolution
du mariage et de la famille_ is interesting and suggestive, but
his analysis is defective; and in this connection, as elsewhere,
the author is inclined to take too pessimistic a view of the
juridical character of early society. Further general or special
discussion may also be found in many of the works already
described in previous Bibliographical Notes, especially in those
of Wake, Starcke, Spencer, Mason, Unger, Bastian, Friedrichs,
Smith, Krauss, Wilken, Riedel, Henrici, Bernhöft, Rehme,
Hellwald, Klemm, Ratzel, Waitz, Fritsch, Munzinger, Sarasin, and
the numerous papers of Kohler. For the Chinese, in connection
with the books enumerated in Bibliographical Note IV, read
Legge, _Life and Teachings of Confucius_ (3d ed., London, 1872);
Doolittle, _Social Life of the Chinese_ (New York, 1867); and
Alabaster, _Chinese Criminal Law_ (London, 1899). The literature
relating to the Eskimo and the red Indians of America, mentioned
in Bibliographical Note IV, yields many important notices of
divorce usage. In addition read Thwaite's valuable paper on the
Winnebagoes, _Wisconsin Hist. Collections_, XII (Madison, 1892).
For reference to the divorce institutions among Greeks, Romans,
Hebrews, and Early Germans see Bibliographical Note XI.]

I. THE RIGHT OF DIVORCE

Few of the results of recent research are more surprising than the revelation of the existence among low races of elaborate systems of unwritten law covering, often in a very orderly and comprehensive way, most of the divisions which one ordinarily associates with "civilized" jurisprudence.[724] This is especially true of the law of divorce. The investigations of various scholars, notably those of Kohler, Letourneau, Westermarck, and Post, have disclosed among the barbarous or even savage races of mankind a careful attention to detail, a stability, and often a respect for equity, in the customary rules relating to the dissolution of marriage, which western prejudice is scarcely prepared to find; while other peoples commonly looked upon as civilized, but relatively non-progressive, such as the Chinese, are sometimes quite capable of teaching us valuable lessons in this regard.

[724] For the proof, see, for instance, the numerous writings of
Riedel, Wilken, Bastian, Friedrichs, Bernhöft, Post, and Kohler.

According to the generalization of Post, who has given the most careful groupings,[725] "the laws of divorce found among the different peoples of the earth vary within the widest limits conceivable." So confusing, indeed, is the mass of custom relating to the subject that in the very outset a word of warning must be given. For in the present state of inquiry, often dependent upon superficial observation and conflicting reports, any analysis or classification, however careful, must perforce be accepted as really tentative and only in broad outline approaching the truth. Nevertheless, with regard to the liberty of divorce, following the suggestion of Post, five classes of peoples may be differentiated:

1. Very often among rude races, particularly where the "genealogical organization is little developed or in process of decay," the marriage bond is lax, and it is readily dissolved at the pleasure of either party.[726] Such is the case with many African, Asiatic, American, and Oceanic peoples. Among the African Damaras, for instance, the wife may change her husband every week if she likes.[727] Similarly among the Shekiani, another negro tribe, the woman may abandon her spouse for mistreatment or for any other cause, returning to her native village, where her friends make it a point of honor not to give her back; and in this way wars sometimes arise.[728] Like freedom exists on the Gold Coast and among the Felups of Fogni; and very commonly in Africa the wife may leave the husband if the purchase price is returned.[729] Among the Makassars and Buginese, without assigning any cause whatever, either party may divorce the other, dividing the children between them.[730] The same is true of the endogamic Alfurese of Minahasa, with whom the cognatic system of relationship prevails.[731] Even in Burma divorce appears to be a one-sided matter, though the person dissolving the marriage suffers severe disadvantages with respect to property rights.[732] In ancient Arabia marriages were formed without ceremony, and they were ended by either spouse with equal ease.[733] But the law of the Amaxosa, constituting with the Amazulu the division of the Bantu stock commonly called "Kafirs," affords a particularly interesting example of early custom with regard to divorce and its legal consequences. Both parties enjoy the greatest freedom in dissolving the marriage; and this is all the more striking because of the prevalence of wife-purchase, which usually restricts the privileges of the woman in this regard. If the marriage is childless, however long it may have endured, the husband who proves the alleged ground of divorce is entitled to receive back the purchase price; and this is true also, in case of such a marriage, when the separation takes place on the part of the wife, unless she establishes very grave cause for her action. The divorced woman is permitted to marry again, provided the purchase price is restored to the first husband; and this in such case he is entitled to receive even when she has borne him children: for here "in all cases the children belong to the father."[734]

[725] POST, _Familienrecht_, 75-79, 249-65; _idem_,
_Anfänge_, 20, 21; _idem_, _Afrikanische Jurisprudenz_, I, 320
ff., 434 ff.; _idem_, _Grundlagen des Rechts_, 267 ff.

[726] POST, _Familienrecht_, 250-58, enumerates six
classes of peoples according to the freedom of divorce: (1)
the marriage relation loose and dissoluble at the pleasure of
either party; (2) marriage indissoluble; (3) divorce only by
mutual consent; (4) divorce the right of the husband only; (5)
divorce the right of the wife; (6) divorce only on definite
grounds, these grounds either being the same for either spouse
or different for the man and the woman respectively. In the
text examples of the fifth group are given in connection with
the cases of divorce at the pleasure of either party; for
where the wife has the right to put away or leave the husband
when she likes, the husband, unless in very exceptional cases
(POST, _Grundlagen_, 271), appears to have the same
privilege with respect to the wife; hence Post's first and fifth
groups are practically the same.

In general on the first phase, see POST, _Afrikanische
Jurisprudenz_, I, 433-38; _idem_, _Grundlagen_, 267 ff.; _idem_,
_Familienrecht_, 249-51; LETOURNEAU, _L'évolution du
mariage_, 284 ff., 289, 290; BERNHÖFT, "Das Gesetz von
Gortyn," _ZVR._, VI, 430 ff., 434; WESTERMARCK, _Human
Marriage_, 518 ff.

[727] POST, _Afrikanische Jurisprudenz_, I, 436, 437.
The husband seems also to have absolute right of divorce:
LETOURNEAU, _op. cit._, 285.

[728] POST, _op. cit._, I, 437.

[729] Among the Mundingos the wife has an action against
the husband for abuse; in Soulimana she may leave him, if
the bride-presents are restored; while among the Krus in
such cases her relatives must repay double the purchase
price; WAITZ, _Anthropologie_, II, 119, 120. Among
the Charruas, where polygyny exists, the wife abandons the
husband if an unmarried man will take her: KLEMM,
_Kulturgeschichte_, II, 75.

[730] POST, _Familienrecht_, 251.

[731] _ibid._

[732] This is the conclusion of KOHLER, "Aus der
Praxis des buddhistischen Rechts in Birma," _ZVR._, VI, 389-91,
following the interesting decisions in JARDINE,
_Circulars (Civil and Criminal) of the Court of the Judicial
Commissioner of British Burma_, 1883 (Rangoon, 1884). _Cf._
also KOHLER, in _ZVR._, VI, 172; POST,
_Familienrecht_, 251; and WESTERMARCK, _op. cit._, 528.

[733] Among the early Arabians the woman as well as the man
had entire freedom of divorce. The _nikâh al-mot'a_, or
temporary contract-marriage, amounted merely to a restriction
of the woman's power of divorce during the short term of
agreement: SMITH, _Kinship and Marriage_, 59 ff., 65
ff.; KREMER, _Kulturgeschichte des Orients_, I. 538;
WILKEN, _Das Matriarchat_, 18, 9 ff.: _ap. Ammianus
Marcellinus_, Book XIV, sec. iv, 4, YONGE'S trans.
(London, 1887), 11. By the later Arabian law, after the rise
of wife-capture and wife-purchase, divorce became the sole
privilege of the husband; and the same is true under the still
later law. _Cf._ in general, HELLWALD, _Die mensch.
Familie_, chaps. xxii, xxiii; KOHLER, "Ueber das
vorislamitische Recht der Araber," _ZVR._, VIII, 244, 248, 257;
FRIEDRICHS, "Das Eherecht des Islam," _ibid._, VII,
263-69.

[734] REHME, "Ueber das Recht der Amaxosa," _ZVR._, X,
38, 39; _cf._ POST, _Afrikanische Jurisprudenz_, I, 436.
FRITSCH, _Die Eingeborenen Süd-Afrikas_, 113, says that
in cases of very cruel treatment the wife may abandon the husband
and return to her family; to get her back the husband has to make
an after-payment.

Divorce is a simple matter among the Point Barrow Eskimo. "As well as we could judge," writes Murdoch, "the marriage bond was regarded simply as a contract ...; and, without any formal ceremony of divorce, easily dissolved in the same way on account of incompatibility of temper or even on account of temporary disagreements."[735] Among the Santee Dakotas, where mother-right is said to prevail, "a wife's mother can take her from the husband and give her to another man." With "the Cegiha, if the husband is kind, the mother-in-law never interferes." But when he is "unkind the wife takes herself back, saying to him, 'I have had you for my husband long enough; depart.'" When the man has beaten the woman several times or been otherwise cruel, sometimes her father or elder brother says to him: "You have made her suffer; you shall not have her for a wife any longer." When a woman who has been warned against a man by her relatives repents and wishes to dissolve the marriage, her male kindred as a punishment say to her: "Not so; still have him for your husband; remain with him always."[736]

[735] In two cases wives left their husbands for bad treatment.
Occasionally the man repudiates his wife; and sometimes there
are several changes or exchanges before a permanent choice is
made. When, however, a union is once settled, it is not easily
dissolved: MURDOCH, in _IX. Rep. of Bureau of Eth._,
411, 412. Similar freedom for both sexes prevails among the
Eskimo about Bering Strait: NELSON, _ibid._, XVIII, Part
I, 292.

[736] DORSEY, "Omaha Sociology," _III. Rep. of Bureau of
Eth._, 261,262. For further examples of easy divorce among the
Indians see TURNER, "Ethnology of the Ungava District,"
_ibid._, XI, 270 (Nenenot); _Report Smith. Inst._, 1885, 71
(Pawnees marry and unmarry at pleasure); ANCHIETA,
"Informação," _Revist. Trim. Hist._, VIII, 254-62 (the woman
leaves the man at pleasure in Brazil).

2. Passing to the opposite extreme, there are peoples with whom marriage is a relation absolutely indissoluble. Sometimes this is the case on sacramental grounds, implying usually considerable progress in religious ideas;[737] but it is also true of peoples standing on a very low plane of culture, such as certain of the Papuas of New Guinea, the Veddahs[738] of Ceylon, or the Niassers of Batu, where death alone is sufficient to dissolve the marriage bond.[739]

[737] The old Indie law does not recognize a proper divorce,
though the husband may "supersede" his wife; but sometimes by the
existing custom of Indian peoples it is allowed: KOHLER,
in _ZVR._, III, 384, 386 ff.; VII, 236; XI, 169. _Cf._
FRIEDRICHS, _ibid._, X, 251; WESTERMARCK, _op.
cit._, 525; LETOURNEAU, _op. cit._, 301, 302.

[738] SARASIN, _Die Weddas von Ceylon_, I, 459.

[739] POST, _Familienrecht_, 251, 252, following the
researches of Wilken and Riedel. This rule applies, apparently,
only to the Papuas of Geelvinkbai in New Guinea; elsewhere
in that island the man may put away the woman at pleasure:
KOHLER, "Ueber das Recht der Papuas auf Neu-Guinea," in
_ZVR._, VII, 373. In general _cf._ WESTERMARCK, _op.
cit._, 517.

3. Between these extremes of one-sided freedom and entire prohibition of divorce various intermediate phases appear. Sometimes the only method is mutual agreement of the parties. So, for instance, according to Post, among the Karo-Karo, a Batak tribe on the east coast of Sumatra, neither harsh mistreatment, wicked desertion, nor even adultery gives either the wife or the husband singly the right to demand a separation. Only in case of life-assault is one-sided divorce permitted; and this rule is perhaps a mitigation of the older and severer law.[740] In West-Victoria "a man can divorce his wife for serious misconduct, and even put her to death; but in every case the charge against her must first be laid before the chiefs of his own and his wife's tribes, and their consent to her punishment obtained. If the wife has children, however, she cannot be divorced. Should a betrothed woman be found after marriage to have been unfaithful, her husband must divorce her. Her relations then remove her and her child to her own tribe, and compel the father of the child to marry her, unless he be a relative. In that case she must remain unmarried. If a husband is unfaithful, his wife cannot divorce him. She may make a complaint to the chief, who can punish the man by sending him away for two or three moons; and the guilty woman is very severely punished by her relatives." But there are other ways of dissolving a marriage; and under some conditions the woman has a chance. Exchange of wives, when both are childless, is "permitted only after the death of their parents, and, of course, with the consent of the chiefs." A couple without children may separate by mutual consent; and "when a woman is treated with cruelty by her husband, she may put herself under the protection of another man, with the intention of becoming his wife. If he take upon himself the duty of protecting her, he must challenge her husband and defeat him in single combat in presence of the chiefs and friends of both parties." When a "husband knows that his wife is in love with another man, and if he has no objection to part with her, he takes her basket to the man's wuurn and leaves it. But as no marriage or exchange of wives can take place without the consent of the chief, the wife remains with her husband till the final great meeting, when the bargain is confirmed. This amicable separation does not create any ill feeling between the parties, as the woman is always kind to her first husband without causing any jealousy on the part of the second. Such transactions, although lawful, may not be approved of by the woman's relatives, and she is liable to be speared by her brother."[741]

[740] POST, _op. cit._, 252. In some instances,
however, mutual agreement is only one of several grounds on
which dissolution of the marriage is allowed. "So ist z. B. auf
Mukuhiva, auf den Marianen, bei den Koluschen eine Trennung
der Ehe durch gegenseitige Uebereinkunft gestattet. Ebenso in
Birma."--POST, _loc. cit._, 252, 253.

[741] DAWSON, _Australian Aborigines_, 33-36. Divorce by
mutual consent is lawful in Polynesia, but it rarely occurs if
there are children: AVERY, "The Indo-Pacific Oceans,"
_Am. Ant._, VI, 366; the same is true of some American peoples:
WAITZ, _Anthropologie_, III, 328.

Among the Marea, when husband and wife can no longer tolerate each other, they are given a year's probation by the "family council;" and only after the expiration of this period does the formal divorce take place. A discontented Marea dame of noble (patriarchal) rank may not of her own will leave her husband; for this would offend social usage. But a Tigrait, or woman of the servile class, may under such circumstances abandon her spouse, provided thenceforth she live abroad.[742]

[742] MUNZINGER, _Ostaf. Studien_, 241.

4. Again it is very common among uncivilized as well as more advanced races for a man to have absolute right of divorce, putting away his wife when he likes, without the assignment of any reason, or on the most frivolous grounds.[743] Sometimes, even among the same peoples, the woman has a reciprocal right, as will presently appear; but very often divorce is the sole prerogative of the man, or else the woman is grudgingly allowed the privilege only for the most serious cause. The unfavorable position in which she is thus placed is no doubt largely due to wife-capture, and especially to wife-purchase, through which she too often sinks to the level of a mere chattel or beast of burden. Still even wife-purchase, as hereafter shown, may have its compensations; for the husband cannot act too harshly without danger of the blood-feud; and he may suffer a decided disadvantage with respect to property by summarily dismissing his wife. Unlimited right of divorce belongs to the man in some parts of China,[744] and with many African[745] and American[746] tribes. "The Aleuts used to exchange their wives for food and clothes. In Tonga a husband divorces his wife by simply telling her to go." In "Yucatan a man might divorce his wife for the merest trifle, even though he had children by her."[747] Among the California Yurok "divorce is very easily accomplished at the will of the husband, the only indispensable formality being that he must receive back from his father-in-law the money which he paid for his spouse."[748] If dissatisfied with his wife, the young Gallinomero of the same region may "strike a bargain with another man" and sell her "for a few strings of shell-money."[749] In the so-called "straw dance" the Dakota husband may "throw away" the wife whom he no longer desires. He may even take several wives in order to dispose of them in this way; thus adding to his importance and giving evidence of his "strong heart."[750] Among the Abipones divorces are as frequent "as changing of the dress in Europe." If "their wives displease them, it is sufficient; they are ordered to decamp." The husband's right is unrestrained by the law; but, "appointing a drinking-party, wherein the memory of injuries is refreshed in the minds of the intoxicated guests, the relations fiercely avenge the dishonor done to the repudiated wife."[751] The Tasmanian husband, when dissatisfied or when a liberal offer is made, may "transfer" his spouse like a slave; but in Luzon a divorce is more difficult, for the wedding gifts must be redistributed among the donors.[752] With "the ancient Hebrews, Greeks, Romans, and Germans, dislike was regarded as a sufficient reason for divorce."[753] Such is also the case on the island of Nias;[754] while among the Galela and Tobelorese the man may put away his wife on account of laziness; and elsewhere he may do the same because she is tiresome or because she lacks skill for household service.[755]

[743] For these cases see WESTERMARCK, _op. cit._,
520-23; POST, _Familienrecht_, 253, 254; _idem_,
_Afrikanische Jurisprudenz_, I, 433-36; _idem_, _Grundlagen_,
268, 269; FRIEDRICHS, "Familienstufen und Eheformen,"
_ZVR._, X, 251, 252; KOHLER, "Studien," _ibid._,
V, 340, 341 (Mongols and Tunguse); _idem_, "Ueber das Recht
der Koreaner," _ibid._, VI, 403; and LETOURNEAU,
_L'évolution du mariage_, 286 ff., 289 ff.

[744] MCLENNAN, _Studies_, I, 141, 142, note;
POST, _Familienrecht_, 253. But this is not the general
rule, as below shown.

[745] POST, _Afrikanische Jurisprudenz_, I, 433 ff.;
WAITZ, _Anthropologie_, II, 109, 115 (only the woman
legally capable of adultery), 120; MUNZINGER, _Ostaf.
Studien_, 320 (Beni Amer).

[746] POST, _Familienrecht_, 253.

[747] WESTERMARCK, _op. cit._, 520, 521.

[748] POWERS, _Tribes of Cal._, 56.

[749] _Ibid._, 178.

[750] After the wife is "thrown away" the husband becomes a
"young man" again, and seeks new partners: BECKWITH,
"Customs of the Dakotahs," _Rep. Smith. Inst._, 1886, Part
I, 256. _Cf._ also on the man's absolute right of divorce,
DORSEY, "Siouan Sociology," _XV. Rep. of Bureau of
Eth._, 225.

[751] DOBRIZHOFFER, _Account_, II, 210-12, 96, 138;
_cf._ GUIMARÃES, "Memoria," _Revist. Trim. Hist._, VI,
307.

[752] BONWICK, _Daily Life and Origin of the
Tasmanians_, 73, 74. The Tasmanian woman, he adds, even
when divorced "was by no means free, as the tribe exercised
jurisdiction" in her "affairs and the disposal of her person. She
soon came under bondage again to another man, though perhaps to a
younger than her first affianced one; as the young fellows were
in most instances supplied with their first partners from the
overflowing establishments of their seniors, or by the grant of a
cast-off bit of property."

[753] WESTERMARCK, _op. cit._, 520, 521, citing Deut.
24:1; MEIER AND SCHÖMANN, _Der attische Process_,
511; MCKENZIE, _Studies in Roman Law_, 123 ff.;
GRIMM, _Rechtsalterthümer_, 454. On the Hebrews see also
LETOURNEAU, _op. cit._, 302, 303; GLASSON, _Le
mariage civil et le divorce_, 145 ff.

[754] POST, _Familienrecht_, 253, 254; RIEDEL,
in _ZFE._, XVII, 78.

[755] "In den Gallareichen kann der Mann die Frau verstossen,
weil sie ihm langweilig geworden oder zu den häuslichen
Geschäften nicht tauglich ist. Will er dagegen keine Scheidung,
sondern nur Trennung, so ergiebt sich die Frau der Prostitution
und kann vom Gatten für sich und ihre illegitimen Kinder Wohnung
und die nöthigen Nahrungsmittel beanspruchen."--POST,
_Familienrecht_, 253, 254. In New Caledonia, likewise,
the wife may be put away because she bores her husband:
LETOURNEAU, _op. cit._, 285.

Under the existing law of Islâm the woman has gained a limited right of divorce. By the form called _chol_ she may buy her release; and in this case "a restoration of the marriage bond is impossible." Again, for certain specified faults of the husband, she is granted a separation through _fasch_, or judicial decree.[756] On the other hand, by _li'an_, or solemn oath before the _cadi_, a husband is able to put away the spouse whom he believes to be unfaithful;[757] but in general the right of the man to reject the woman without assigning any cause whatever is absolutely unrestrained. The great majority of divorces among Moslem peoples take the form of _talâq_, or repudiation. It is only necessary for the husband who is tired of his wife to say to her "_mutállaka_," "Thou art dismissed."[758] In harmony with the old Arabian custom the procedure by _talâq_ may consist of a "triple declaration" or three successive divorces. After the first pronouncement of the formula the repudiated woman remains three months in her harem at the man's cost, and he is at liberty to take her back if he will. Indeed, a single tender glance or word of concession is sufficient to restore the marriage. Should he not reclaim her until the specified term is passed, he may then do so only in case she has not already taken a new husband, and by paying her a "second time the full amount of the morning-gift as stipulated at their marriage." A second or even a third separation from the same wife may be had by repetition of this process; but the third declaration, unlike the other two, is irrevocable, definitively dissolving the marriage bond.[759]

[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 the _accouchement_. 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
especially VINCENTI, _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._, citing EFENDI,
_Türkische Skizzen_, II, 15. In general see UNGER, _Die
Ehe_, 48-50; LETOURNEAU, _op. cit._, 289-99, on the
triple declaration among Mohammedan peoples of Africa.

Among a great many peoples, even those comparatively little advanced in general culture, the husband is permitted to divorce his wife only for definite reasons.[760] The causes of legal divorce most constantly recurring are adultery and sterility. In a great many cases divorce is absolutely forbidden after a child, usually a son, is born. It should be carefully noted that many of the alleged examples of divorce on the ground of sterility are, strictly speaking, not divorces at all; but rather illustrations of the so-called "proof-marriages" so often met with in all parts of the world. Not until the term of probation is "blessed" by the arrival of offspring is the "marriage" in such cases regarded as complete, though this may not always be the implied condition. With the proof-marriages are sometimes described as identical in character the "time-marriages" found among many peoples; but this form of union is, properly speaking, usually a real marriage not dependent for its consummation upon the birth of a child, being stipulated in advance for a certain term.[761] Besides the two leading grounds of divorce already mentioned, many others, some of them trivial, are prescribed by the laws of various peoples. Such are mistreatment, deformity, laziness, desertion, and incompatibility of temper. Sometimes the consent of the chief or other public authority is requisite. So, among the Hottentots, a man may divorce his wife only "upon shewing such cause as shall be satisfactory to the men of the kraal where they live;"[762] and among the aborigines of Victoria, as already seen, a childless wife may be dismissed for serious misconduct only when the sanction of the tribal chief is obtained.[763] By Chinese law divorce _must_ be granted in case of any of the numerous impediments[764] to marriage; or when the wife is guilty of adultery. For that offense the aggrieved husband may kill the offending wife and her paramour, if he catch them _in flagrante delicto_. But should the woman not be slain, she is punished, and the husband may drive her away or even sell her as a concubine, provided he has not pandered to the crime or does not sell her to the guilty man.[765] Furthermore, a marriage may be dissolved by mutual agreement;[766] and the husband is entitled to a divorce when the wife strikes him, is addicted to drunkenness or opium smoking, has been defiled before marriage, or when she leaves his house against his will.[767] Besides all these grounds, established by statute or recent usage, Confucius allows the husband a divorce for any of seven faults of the wife: barrenness, wantonness, inattention to parents-in-law, talkativeness, theft, jealousy, and inveterate disease such as leprosy.[768] But these grounds will not always warrant a separation. "They may be outweighed by particular merits of the woman or by special circumstances. If the wife has mourned three years for the husband's parents; if the family has grown rich during the marriage; or if the wife has no longer relatives to receive her, then the seven assigned grounds fail, the divorce is not only forbidden but void, and the husband must retain his wife."[769] This is not the only wise and righteous provision of the Chinese law, however despotic as a rule may be the husband's power. Normally the wife cannot sue for divorce; still practically she enjoys the right of separation in several important contingencies. Under judicial approval, for instance, she may release herself from the marriage bond in case of three[770] years' desertion without word from her husband. So likewise, when she suffers grave insult from the husband's parents, she may return to her own family, reclaim her dotal gift, and demand a contribution for her support.[771]

[760] These cases are discussed by POST,
_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, see
POST, _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, in _ZFE._, 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 see
WESTERMARCK, _op. cit._, 518, 519. Such marriages are
found among the Winnebagoes: THWAITES, in _Wis. 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: see POST, _Afrikanische Jurisprudenz_,
I, 435, who also cites Kolben.

[763] DAWSON, _Australian Aborigines_, 33.

[764] For the impediments to matrimony, all of which are
diriment, see MÖLLENDORFF, _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 taken _in 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 to TSCHENG-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 to
WESTERMARCK, _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": citing NAVARETTE,
_An Account of the Empire of China_ (London, 1704), 73.

[770] According to ALABASTER, _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.

In modern Japan divorce is regulated according to the principles of western law; but formerly the husband's power was governed, as in China, by the rules of Confucius.[772] Furthermore, in spirit the Aztec law of divorce bears a striking resemblance to that of China. Only in special cases, not now understood, had the woman a right of separation; and the husband could put away his wife only for definite reasons, such as sterility and certain defects of character, as when she proved herself careless, impatient, lazy, or quarrelsome. Divorce, however, was discouraged; and even when a legal reason was alleged, it could not be effected without a judicial decree. The decree did not declare the separation; it merely allowed the plaintiff in the matter "to do what he should find good." Thus permission was given for divorce; but the judge avoided pronouncing the separation in direct words.[773]

[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.

5. Finally, in further illustration of the endless variety of popular customs, it must be noted that among many peoples the wife also has the right of divorce. Often, as already seen, she may leave her husband at pleasure or on the slightest pretext. It needs but a glance at the usages of the American Indians in this regard to perceive that the lot of the married woman among barbarous or even savage tribes is not always so dark as it is frequently painted;[774] and many similar proofs elsewhere exist.[775] Among the inland Columbians, according to Bancroft, "either party may dissolve the marriage at will."[776] A similar rule prevails with the Moxos of South America, the tribes of California, as well as among the Iroquois and their neighbors.[777] "If a Bonak wife gets up and leaves the man, he has no claim ever after on her;"[778] and, according to Schoolcraft, when the Navajo woman marries, "she becomes free, and may leave her husband for sufficient cause."[779] The Guanan[780] and Guatemalan[781] wife is equally privileged; and the Sioux and other Dakota women are often notoriously independent, even beating their husbands for unfaithfulness, and for this or other just cause returning to their own kindred.[782] Sometimes the wife has the right of divorce only on definite grounds, which may differ from or be the same as those permitted to the husband.[783] Often the reasons which satisfy the moral sense of the community are very slight; at other times they are grave and few in number. Among the Shans, "should the husband take to drinking or otherwise misconducting himself, the woman has the right to turn him adrift, and to retain all the goods and money of the partnership."[784] In "Eastern Central Africa divorce may be effected if the husband neglects to sew his wife's clothes, or if the partners do not please each other."[785] Theoretically among the Athenians the woman could demand a divorce for mistreatment, "in which case she had merely to announce her wish to the archons;"[786] while the Kafir wife "who is beaten or not provided with sufficient food and clothes is entitled to return to her parents."[787] In fact, the right of the woman to repudiate her husband for mistreatment is alleged to be the general rule according to negro custom.[788] Even by modern Mohammedan legislation "divorce may, in certain cases, take place at the instance of the wife, and, if cruelly treated or neglected by her husband, she has the right of demanding divorce by authority of justice."[789]

[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 see POST,
_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'S _Lives_
(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 also HENRICI,
"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 also AMRAM, _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.

II. THE FORM OF DIVORCE

The form of divorce, like the rules relating to the right and its conditions, varies greatly among the races of mankind. Very frequently, usually among the lowest peoples, it takes place without any ceremony.[790] Sometimes, however, the procedure is fixed by law or custom. A symbolical act is occasionally sufficient, as with the east African Wazaramo, where the husband by way of divorce hands the wife a piece of holcus reed, on receiving which she must at once leave the house or be driven out.[791] The Unyoro husband observes a similar rite.[792] It is likewise a private transaction in Morocco, where the man rejects the woman by a bill of divorce. The same procedure may be employed in China; and a three-fold proclamation before witnesses is adequate among the Somali.[793] In Dawan (west Timor) it takes place in a council composed of the relations of the man and wife, where the cause is weighed and determined; but in this assembly neither the chiefs nor the eldest have any voice.[794] Similar councils are common among African tribes.[795] In many instances, however, exactly the opposite rule prevails, the decision of the "eldest," the "chiefs," or of some other magisterial, priestly, or judicial authority being requisite for a legal separation.[796]

[790] For examples see POST, _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.

III. THE LEGAL EFFECTS OF DIVORCE

Not less diversified are the customs governing the effects of divorce; and here, as in the case of its varying forms and conditions, one is almost as often surprised by the reasonableness and stability of early institutions as he is shocked at their harshness or injustice when regarded from the civilized standpoint. In the disposal of the children the existing system of kinship is very widely determinative. Among a great many peoples, in case of separation, the children follow the father or the mother according as mother-right or father-right prevails;[797] and where a mixed system, or rather a coincidence of mother-right and paternal authority,[798] is found, or else relationship is cognatic, they are divided between the parents or their kindred.[799] The division is determined by a variety of rules among different peoples. Often they are equally divided, regardless of sex.[800] Sometimes, as in Bulgaria,[801] Burma,[802] and among the Natchez Indians,[803] the daughters follow the mother and the sons remain with the father. In still other cases, as in certain South Slavonian districts, the father takes the adult children, while those of tender years are left in the mother's hands. Such is the rule in Zara and in Bosnia.[804] In Lika, according to Krauss, when all the children are males, the mother receives the minors, if the father consents; but when they are of both sexes, the sons follow the father and the daughters the mother. In this last case, however, the man is required to pay the divorced woman whatever is needed to supply the bridal outfit of the daughters when they reach marriageable age. When it happens at the time of separation that all the children are grown-up daughters, they are allowed a free choice between the parents. Should none remain with the father, the mother and daughters are entitled to all the property gained during marriage.[805] Often in case of divorce the children belong to the innocent party;[806] unless children are regarded as a burden, when the opposite rule prevails;[807] or unless the system of kinship determines the disposition of the offspring, when an equitable adjustment is otherwise made. Thus among the African Fantis of the Gold Coast--where by law the children belong to the mother's family--in case of divorce through fault of the woman, the man is entitled to a sum equal to 22s. 6d. for each child; and when by stipulation the sons remain with the father, he is nevertheless not permitted to sell them or put them in pawn. If the divorced wife cannot restore to the husband the price paid for her, the children are left with him as a pledge for the debt until by their service they have paid it with 50 per cent. interest. In this way, we are told, children often become slaves for life to their own father and as such are even transmitted to his heirs.[808]

[797] So in case of divorce among the Omahas, where, as
DORSEY believes, "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 becomes _sui 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, in
_ZVR._, VI, 172; POST, _Familienrecht_, 262. For African
examples see POST, _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.

Very similar in variety and character are the rules governing the disposition of the property when a marriage is dissolved. These are mainly dependent in each case upon the general principles of the family law relating to property rights.[809] Sometimes, as among the South Slavonians,[810] each receives back the property which he had at the time of the marriage, while the common earnings are divided, though not always in equal portions.[811] But as the most general rule responsibility for the divorce is of vital importance in determining the course to be pursued. The man or the woman who arbitrarily dissolves the marriage, or whose guilty conduct is the cause of separation, usually suffers a decided disadvantage. Thus the woman must restore the dotal gift or the presents received from her husband; and the purchase price must be repaid by herself or by her kindred. On the other hand, the man who puts away his wife without just cause must often forfeit all claim to restitution of the bride-money, perhaps lose his children, and even suffer other penalties besides, such as the payment of alimony.[812]

[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 see
POST, _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 the _cadi_: 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 see LETOURNEAU, _op. cit._, 289 ff.

Especially interesting among uncivilized or backward races are the effects of divorce with respect to second marriage or the remarriage of the parties to one another. Everywhere, apparently, the man who puts away his wife or has been divorced by her is allowed to contract a second marriage immediately, or, at any rate, after a very short interval.[813] This follows almost as a matter of course where wife-capture or wife-purchase exists, or where polygyny prevails.[814] But with regard to the second marriage of a divorced woman usage greatly varies. Among a number of peoples she is free to marry again, if she likes, even when she is responsible for the separation.[815] Generally, however, her freedom is restricted in this regard; and this is especially apt to be the case where wife-purchase exists; for then the legal rights of the husband in the woman are by no means extinguished by the dissolution of marriage. Her status as a wife must thus be distinguished from her position as property or as the object of contract. Accordingly for this or some other reason the woman who puts away her husband is sometimes absolutely forbidden to form a second marriage. Such is the case among peoples so little advanced as the Ashantees and Hottentots; while the Banjun wife who divorces her husband may not marry again in the same village where she found her first spouse.[816] Still more rigorous is the rule in Samoa, where the divorced woman is forbidden to remarry even after her husband's death.[817] Between the extremes of entire freedom and entire prohibition the remarriage of a woman is hampered by a variety of conditions, some simple and others severe. The Kafir woman may be married again by her father when she has divorced her husband with consent of the tribal chief. Sometimes the second marriage depends on the return of the marriage-gift or the purchase price; or the woman must wait a certain period, as three months or a year, before contracting it.[818] In several instances, doubtless as the result of purchase, after returning to her father's house she remains at her husband's disposal until he formally sets her free; while in yet other cases she may be reclaimed by him within a certain definite time. So with the old Arabians the purchased wife was looked upon as the husband's property, and hence divorce did not release her from his claims.[819] In Islam, as already explained, where the ancient Arabian rule of triple declaration of divorce still survives, a man who has divorced his wife by a single or even a second declaration of the formula "can take her again within three months without asking her consent."[820] Among the Bedouins, in like spirit, when the divorce takes place at the instance of the woman, the man may refuse to repeat the formula of separation without which she cannot contract a second marriage.[821] Very frequently the second marriage, whether of a widow or a divorced woman, is not looked upon as so important as the first. The wedding ceremonial and festivities are less marked; the customary time of seclusion after the nuptials is shorter; the bride-price is much smaller; or the wife has a less advantageous position with respect to property.[822] On the other hand, the widow or divorced woman who will remarry has sometimes an important compensation for the loss of social prestige, since she may freely bestow her hand in choosing a second mate.[823]

[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 of POST, _loc. cit._

[815] See the examples enumerated in POST,
_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. Compare POST, _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 in
POST, _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.

Perhaps as a general rule the divorced man and woman are as free to remarry each other as they are to contract a second marriage with other persons;[824] but sometimes the reunion is dependent upon the observance of special legal formalities, or it can take place only after a fixed interval.[825] In rare instances, as among the ancient Aztecs, the remarriage of a divorced couple is absolutely forbidden.[826]

[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._ also KLEMM, _Kulturgeschichte_, V, 35;
POST, _Familienrecht_, 265.

IV. FREQUENCY OF DIVORCE

The laws of divorce among backward races, it is thus perceived, are full of interest for the student of social institutions. One comes from the study with a clearer perception of the fact that such institutions are but the outward expression of human life--of slow experience and experimentation; and one gains a deeper respect for the concrete results of primitive culture. Especially important is the relation of divorce to the stability of society. The conservatism prevailing even among rude peoples with respect to the liberty of divorce is remarkable. This may be due in part to the fact that primarily marriage does not rest so much upon the sexual instinct as upon family needs.[827] In some instances, where dissolution of the marriage is free to either party, or where it is the peculiar right of the man, divorce is exceedingly rare.[828] The American Indian tribes are conspicuous in this regard.[829] Sometimes there is a strong social sentiment against it. Such is the case in China. Formerly among the Japanese, like the ancient Aztecs, divorces were infrequent;[830] and among many less advanced peoples, such as the Afghans, the Veddahs, or even the Zulus, the sentiment of love is doubtless a stronger check upon instability of the family than is commonly supposed.[831]

[827] STARCKE, _Primitive Family_, 258, 259.

[828] For examples see FRIEDRICHS, "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 see HELLWALD, _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, in _Trans. Royal As. Soc., China Branch_,
IV, 27: WESTERMARCK, _op. cit._, 525. For Japan see
WAKE, _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 of WAKE, _op. cit._, 218; and
compare RATZEL, _Hist. of Mankind_, II, 434 (Zulus); and
SARASIN, _Die Weddas von Ceylon_, I, 458, 468, 469.

The rules governing the division of property are important in this connection; for, as Westermarck suggests, the selfish interests of the husband "prevent him from recklessly repudiating his wife. In many instances divorce implies for the man a loss of fortune."[832] In rare cases he is obliged to provide for the wife's support even after the separation.[833] Often, as already seen, the woman receives back her dotal gift and whatever she brought with her at the marriage; while frequently the husband is obliged to surrender a portion or all of the common property. Thus "among the Karens, if a man leaves his wife, the rule is that the house and all the property belong to her, nothing being his but what he takes with him. Among the Manipuris, according to Colonel Dalton, a wife who is put away without fault on her part, takes all the personal property of the husband, except one drinking cup and the cloth round his loins;" and "similar rules prevail among the Galela, and in the Marianne Group."[834]

[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.

The conservative influence of property is even more marked in connection with wife-purchase--a powerful deterrent of hasty divorce. In the case of a sale-marriage, even in the weakened form of dower to the woman, the guilty or responsible party usually suffers a decided disadvantage from the separation. The man who repudiates his wife without just cause, as already shown, may not only forfeit his right to reclaim the bride-money, and incur other losses on the division of the property; but often, particularly where the maternal system of kinship prevails, he may have to surrender his children as well; and the woman who unjustly leaves her husband may lose all that she brought with her into the home or compel her kindred to restore the purchase price.[835]

[835] On the conservative influence of wife-purchase see
WESTERMARCK, _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 in LETOURNEAU, _op. cit._, 292-96.
The man has the sole right of divorce. As a condition of setting
the woman free he may demand the _lefdi_, or price of redemption,
and fix such other terms as he pleases; as that the _lefdi_ shall
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 the _lefdi_
is fixed by law, usually at a sum higher than the _thâmanth_, 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.

Here also the results of the genealogical organization must be considered. The blood-feud, paradoxical as it may seem, often acts as a conservative power among primitive men. The wife's kindred may protect her from the vengeance of a brutal husband whom she has deserted; or they may send her back when she has acted indiscreetly or when they dread the wrath of the husband's clan. The organization of society on the basis of kinship has another important bearing upon the effects of divorce. It appears to be practically a universal rule among uncivilized races that the repudiated wife or the woman who legally puts away her husband shall return to her own family or clan, whose duty it is to receive her. Accordingly, the lot even of the savage woman has mitigating conditions not always accorded by the laws of civilized society. "In savages," observes Mason, "where every man and woman and child is billeted somewhere, there is no such thing as thrusting man or woman out into nowhere.... Should the man wish to repudiate his wife, she cannot be sent out into the jungle or forest; she must be returned to somebody."[836]

[836] MASON, _Woman's Share in Primitive Culture_, 229,
230.