Free marriage in one or the other of these forms is very widely diffused, though it may not always be possible to determine the exact legal relation of the guardian and the betrothed.[678] Sometimes self-betrothal and contract by the guardian are found side by side. Such is the case in Rotuma; and among the Turks of middle Asia the conventional marriage, in which the couple are contracted by their fathers in childhood, is found in connection with natural marriage which rests upon the vows of the betrothed.[679]
It is commonly assumed that where marriage by purchase exists woman must necessarily be in an abject condition. The "average facts," says Spencer, "show that at first women are regarded by men simply as property, and continue to be so regarded through several later stages: they are valued as domestic cattle."[680] Such also is the opinion of Letourneau, who takes a very pessimistic view of the early condition of woman. During a long period her wishes in marriage were utterly ignored. The sale of women and children for slaves or wives is the result of brute force and the primitive despotism of man. Marriage by purchase, he says, "implies a profound disdain of woman, her complete assimilation to movables, to cattle, to things in general."[681] Doubtless among low races the lot of woman is often extremely harsh and degraded. The examples already given demonstrate that she is sometimes treated merely as an object of sale or exchange; and where polygyny exists wife-purchase may have a strong tendency to reduce her to slavery.[682] But a more careful examination of the evidence proves that marriage by purchase is not inconsistent with a high degree of matrimonial choice on the part of the woman. As already suggested, purchase is far from being the original method of contracting marriage. Like the patriarchal authority in general,[683] by which the liberty of the son as well as that of the daughter is sometimes destroyed, it is of comparatively late origin, arising with the institution of property and an appreciation of the economic value of labor. "It may be said generally that in a state of nature every grown-up individual earns his own living. Hence there is no slavery, as there is, properly speaking, no labour." A man then had no reason "to retain his full-grown daughter; she might go away, and marry at her pleasure."[684]
In marriage by purchase there is still a chance for the wooer; and the unwilling maiden has many an opportunity to avoid a husband whom she does not fancy.[685] Elopement has its chief significance in this connection. Instead of being necessarily a relic of wife-capture, it is rather the means by which the lovers, particularly the bride, maintain the actual right to dispose of themselves in marriage.[686] Many illustrations of this fact might be presented. Among the aborigines of North and South America, where, as we have seen, wife-purchase and even wife-capture are common, woman possesses a wide liberty of choice. In arctic regions the wife sometimes runs away from the husband forced upon her and joins her lover;[687] and in general the maiden often thus escapes a detested suitor. Such is the case, for instance, among the Greenlanders, Dakotas, Caribs, and Patagonians;[688] while among the Abipones, according to Dobrizhoffer, when a man thinks fit to choose a wife, he must bargain with the parents of the girl about the price. But "it frequently happens that the girl rescinds what had been settled and agreed upon ... obstinately rejecting the very mention of marriage. Many girls, through fear of being compelled to marry, have concealed themselves in the recesses of the woods or lakes; seeming to dread the assaults of tigers less than the untried nuptials. Some of them, just before they are to be brought to the bridegroom's house, fly to the chapel, and there, hidden behind the altar, elude the threats and the expectation of the unwelcome" suitor.[689] In exactly the same way she gains her will in Tierra del Fuego, where the lover serves for his bride;[690] and among the same people "the eagerness with which the women seek for young husbands is surprising, but even more surprising is the fact that they nearly always attain their ends."[691] The Comanche suitor must buy his bride of her parents; but unless she manifests her willingness by leading his pony into the stall, the bargain is void.[692] A similar freedom in choosing her mate is asserted by the woman of the Pueblos, Creeks, Chippewas, and various other tribes;[693] while the existence of real affection and true courtship is shown by the fact that suicide sometimes happens on account of disappointed love.[694]
Free marriage, very often in connection with wife-purchase, prevails widely throughout the African peoples. Accounts differ as to the Kafirs. According to Fritsch, a woman is bought like any chattel.[695] But Leslie declares that generally the man first tries to win her consent; for it is "a mistake to imagine that a girl is sold by her father in the same manner, and with the same authority, with which he would dispose of a cow."[696] On the other hand, Fritsch shows that the heart of the Bechuana, and especially that of the despised Bushman, "is not so full of his oxen," the woman having some liberty of choice.[697] Winwood Reade informed Darwin, with respect to the negroes of western Africa, that "the women, at least among the more intelligent pagan tribes, have no difficulty in getting the husbands whom they may desire, although it is considered unwomanly to ask a man to marry them. They are quite capable of falling in love, and of forming tender, passionate, and faithful attachments."[698]
Throughout all Micronesia and in many parts of Melanesia marriage implies the consent of the betrothed. The New Caledonian girl is thus always consulted; and, if forced to obey her parents, she takes the first opportunity to elope with the man of her choice.[699] In the New Britain group "after the man has worked for years to pay for his wife, and is finally in a position to take her to his house, she may refuse to go, and he cannot claim back from the parents the large sums he has paid them in yams, cocoanuts, and sugar-canes."[700] Betrothal by the guardian and self-marriage appear together in Burma. In the first case the daughter is given by her father in return for service and gifts. Her consent is not essential; but if she runs away from her husband more than three times, she is free, and her parents retain the gifts. In the second case the girl elopes without the guardian's consent, a recognized marriage relation being thus established, though the guardian may reclaim the bride. Should she, however, return thrice to her husband, she remains his legal wife.[701] "Among the Minahassers of Celebes courtship or love-making 'is always strictly an affair of the heart and not in any way dependent upon the consent or even wish of the parents.'"[702] The Rejang suitor of Sumatra elopes with the girl and pays the price afterwards; and such is often the case in Australia, among the uncivilized tribes of India, and throughout the Indian Archipelago. In all these cases, as well as among some of the Turanian peoples of central and northern Asia, the choice of the woman, even without elopement, is usually decisive, though often the arrangement of the marriage belongs legally to the parents.[703]
It is very easy to exaggerate the bright as well as the dark features of primitive social life. The reports of travelers, often untrained in the interpretation of the facts which they observe, are notoriously untrustworthy. It is extremely difficult to discern the motives which actuate men in a stage of culture remote from our own. Nevertheless it seems certain that the position of uncivilized woman with respect to marriage is not quite so hopeless as is generally imagined. The facts appear to demonstrate that woman's original liberty of selection has never been entirely lost. It is evident that wife-purchase, though sometimes the means of degradation, even of marital bondage, is compatible with a high degree of matrimonial choice. The ideas which influence the "uncivilized" man in selling his daughter are probably often very similar to those which govern the thrifty father in modern society when he insists on securing a good "match" for his child. The price is regarded as a fair equivalent for the services to which the parent is justly entitled in return for rearing the girl.[704] The Kafir maiden who brings a good price from her suitor is not therefore necessarily a "chattel" any more than is the daughter whose labor the civilized parent lets out for hire.[705] A high price may be looked upon also as a proper recognition of the rank or of the mental and physical attractions of the bride.[706] Furthermore, it is significant that actual bride-purchase may coexist with advanced ethical and religious conceptions of the marriage state. Such, according to Kohler, is the case in the Punjab, where the courts under British rule have decided that the sale of a woman to be a wife is not punishable as a crime under the statute forbidding the sale of a human being into slavery;[707] and Leist has shown that in the dharma period of early Aryan history the purchased wife was not regarded as a "thing," but in the fullest sense as a free wife entitled to share the sacra of the husband's house. Nay, the actual payment of the legal bride-money in certain cases was the only means through which marriage by purchase could reach the proper ethical end of legitimate marriage: the birth of a son to perpetuate the ancestral worship.[708]
Another fact, sometimes misinterpreted, seems to point clearly to the persistence of original free marriage. It is highly significant that wife-purchase appears never to have existed at all among a certain number of very low races, with which nevertheless marriage rests on the free consent of the parties. Such is the case among the California Wintun, the Alaskan Yukonikhotana, the Andamanese, the Chittagong hill tribes, and certain African peoples. Among the "Pádams, one of the lowest peoples of India, it is customary for a lover to show his inclinations whilst courting by presenting his sweetheart and her parents with small delicacies, such as field mice and squirrels, though the parents seldom interfere with the young couple's designs, and it would be regarded as an indelible disgrace to barter a child's happiness for money."[709] So likewise with the Veddahs[710] either no presents are given on either side, or else the ceremony consists simply in offering some food to the parents of the bride; and elsewhere the proffer of similar "wooing-gifts," without previous stipulation, must be looked upon either as a token of good-will or as an indication of the ability of the bridegroom to provide for a wife, rather than as a means of purchase.[711] The probational marriages of the Seri Indians appear to have a like significance.[712] May we not go a step farther? Is it not probable that the widely diffused custom of bestowing presents of greater value, even where the amount is established by usage or previous agreement, may sometimes be due to like motives? Though, as a rule, the presentation of such gifts represents a "weakened" form of wife-purchase, it does not seem necessary to assign the origin of the practice to a single cause. The same is true of the custom of exchanging presents between the two families. Usually it is rightly explained as a stage in the decay of purchase and in the rise of the dower; but when we find the return of gifts in use among such rude peoples, for instance, as the Bechuanas, the Kalmucks, the Makassars, and the American Indians,[713] it seems reasonable to suppose that the custom, in some cases at least, may represent a ceremonial development of free marriage, taking its rise in various motives. Thus among the Todas, it has been suggested, the transaction appears as an exchange of dowers to serve as a security for the mutual good behavior of the future couple.[714] Similarly with the American Indians the gift to the bride's parents may sometimes be designed to purchase clan privileges[715] or to procure the "alliance of the wife's cabin;" while the exchange of presents, which is found where it is usual for the husband to take up his abode in the wife's home, ought perhaps to be regarded as a matrimonial compact of alliance between the two families.[716]
Nevertheless, after every allowance is made, the custom of purchasing wives bears the indelible stamp of barbarism. Like polygyny, which it so often accompanies, it is an offense against the feelings and the dignity of woman. Therefore, often at a relatively early period of social progress, it falls into disrepute; but while it is gradually abandoned as a thing unseemly or disgraceful, traces of it may long survive. On the one hand, as in the case of the Roman coemptio, the Hindu ārsha, the Anglo-Saxon beweddung, or the Jewish contract with the penny, the form of sale is present in the wedding ceremony; or, on the other hand, the bride-money, though still rendered, comes in time to be regarded as simply a compensation for the guardianship of the woman;[717] or else, passing through several intermediate stages, it is slowly transformed into a dower.[718]
In the first stage of decline the bride-price appears as a nominal compensation, out of proportion to the real value of the girl. It usually consists of presents to the wife's parents or relatives, and sometimes these are scarcely distinguishable from the "wooing-gifts" already mentioned; while later it may degenerate into a mere symbol or become a sportive social observance whose meaning is entirely forgotten.[719] Again, among a large number of peoples, custom requires that a part, sometimes all, of the gifts constituting the price, or their equivalent, shall be returned to the bridegroom or his family; and it is significant that special care is sometimes taken, as among the Indians of Oregon, "not to turn over the same horses or the same articles."[720] With other peoples a part or the whole of the purchase price comes to the bride herself. Either the father turns it over as a marriage portion, or it is paid to her directly by the bridegroom. In the latter case, as Westermarck observes, it is often difficult "to make out whether the presents obtained from the bridegroom formed originally a part of the bride-price or were only a means of gaining her own consent."[721] One step more, and we reach the stage of development in which the father provides his daughters with a dotal portion out of his own substance.[722]
Thus, to summarize, it appears in general that the institution of dower takes its rise in two principal sources: either it is derived through the return gift from its exact opposite, the ancient purchase price of the bride; or, as a means of providing in some way for the wife as a member of the new household, it has developed along with free marriage, and stands as an expression of the natural motives and desires upon which the human family rests. Strangely enough, in our own society the marriage portion "has become a purchase sum by means of which a father buys a husband for his daughter."[723] It may be doubted whether the ideas which actuate the modern plutocrat in such a transaction differ essentially from those of the rich savage or barbarian who succeeds in procuring a beautiful or high-born maiden in exchange for his flocks.
We have now traced the evolution of the marriage contract throughout its entire course, and are able to perceive in a measure its true place in the general history of the human family. Again the movement has been in a circle. As in the case of monogamy, the genesis of contract must be sought beyond the border-line between man and the lower animals. In the "natural history" stage of human existence marriage rested on the free consent of the man and the woman. It was an informal agreement. The man was the wooer, and to the woman belonged the first place in sexual choice. In obedience to the unvarying requirements of organic law, the best attributes of each race have thus been differentiated: through natural selection they represent the survival of the fittest. At a later stage of development the element of mutual consent falls somewhat into abeyance. With the rise of property, industry, and a more complex social organization, giving birth to new desires and ambitions, contract by the guardian in part supersedes self-betrothal. Purchase and its occasional alternative, capture, depriving woman of her natural right of assent, tend to reduce the wife to concubinage and domestic slavery. But fortunately the victory is not complete. Just as monogamy is never displaced by polygyny as the natural type of marriage, so the consent of woman as the normal condition of matrimonial union is never entirely destroyed by wife-purchase. With the evolution of altruism, the increase of culture, producing sympathy upon which connubial love largely depends, and the gradual recognition of the spiritual equality of the sexes, self-betrothal, like monogamy, again predominates. In short, whether regarded historically or biologically, monogamy and self-betrothal appear simply as two aspects of the same institution; they are connected by a psychic bond, and together they constitute the highest type of marriage and the family.
[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.]
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.
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]
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]