With the Bongos, in case of divorce, the father must give back a part of the utensils or fire-arms for which he had ceded his daughter. He is even forced to a total restitution, if the husband keeps the children while repudiating the wife. In the last case there is evidently an idea of indemnifying the husband for the charge he undertakes, and this view of the matter is not uncommon in Africa.[722] Among the Bongos marriage is considered as a simple commercial transaction; and it is the same in the whole of Central Africa, especially among the Soulimas, where the women have the power of leaving their husbands to unite themselves to another man, on the sole condition of returning to their husband-proprietor the sum that he has paid to purchase them from their parents. However, this rare and singular liberty is taken from them if they commit adultery. But even in this last case they are treated with relative mildness.[723] As we have previously seen, the same custom is observed among the Fantis of the Gold Coast, where the woman who quits her husband without a serious reason, taking her children with her, need only pay him a fixed indemnity—four ackies (twenty-two shillings and sixpence) for each child.[724] In the same way the Ashantees consider children a value worth keeping; thus their women can re-marry after a three years’ absence of their husband; and in case of the traveller’s return, it is the second marriage which holds good, only all the children that are his become the property of the first husband.[725] In fact, that equals an indemnity, since in Africa children are generally considered as a commercial value.
In Polynesia the conjugal bond could be untied, as it was tied, with the greatest ease. In the Marquesas Isles the husband and wife parted of mutual accord, in case of incompatibility of temper, and all was over; but if without his authorisation the wife deserted the conjugal hut to follow a lover, the husband watched for her and administered furious and repeated corrections.[726] At Hawaï the marriage was also dissolved at will, if the husband and wife were agreed on this point.[727] At Tahiti the unions were of the frailest; the husband and wife parted without ceremony, and the children were no obstacle, for by a previous agreement they were made over to one or other of the partners.[728] It was the same in the Caroline Isles, where, though the race was different, the customs were analogous, and married couples could divorce themselves at will.[729]
This fragility of marriages is common in savage countries. The man always has the right of repudiation, and very often the reciprocal right exists also. This fact seems even less rare among savages than it is later, at the middle period of the development of civilisation, when the patriarchal family is solidly established.
In North America, meaning, of course, savage America, the classic land of the matriarchate, man nevertheless enjoys nearly always the right of repudiation, often without limits; but certain tribes either admit divorce by mutual consent, or limit the right of repudiation, or recognise certain rights of the wife. The Malemoute Esquimaux drive away their wives at will,[730] as do also the Kamtschatdales, their congeners of Asia;[731] but, with the Esquimaux, hardly any but a free and capricious union is known; there is as yet no durable marriage. It is nearly the same in a certain number of American tribes, where divorce is easy at the will of the two parties. Among the Dakota Santals the wife who is ill treated by her companion has the right to retire; but she cannot take the children without the husband’s consent.[732] The marriage of the Iroquois, and of some other neighbouring tribes, was also broken by mutual consent. These Redskins lived in great common houses, each one inhabited by a fraction of the tribe, a gens, and consequently, that one of the divorced couple whose relations dominated in the gens, remained there; the other was forced to depart.[733] The Redskins of California also practised this easy and mutual divorce.[734] The Navajos still recognised the right of the wife to leave her husband, but already the masculine point of honour entered into play, and the deserted husband was obliged, under pain of ridicule, to revenge himself by killing some one.[735] At Guatemala the wife and husband could part at will and on the slightest pretext.[736] The Moxos of South America only regarded marriage as an agreement that could be dissolved by the will of the two parties.[737] But in many other Redskin tribes the right of divorce seems far from being reciprocal; it is replaced, to the detriment of the wife, by repudiation, which the husband can pronounce with a word. According to the Abbé Domenech, it is the fear of this terrible word which maintains an appearance of harmony among the many women in the interior of the Indian wigwams.[738] With the Chippeways a man takes or buys a girl of twelve, and sends her back when he is tired of her.[739] The Chinook husband can also repudiate his wife according to his caprice.[740] In a tribe of the Nahuas, the husbands enjoyed the same rights, but on condition of exercising them on the day after the marriage; the experimental union preceded the durable one.[741] In New Mexico, the husband repudiated at will, on condition only of restoring his wife’s possessions.[742] A single word of the Caribean husbands also sufficed to dismiss the wife.[743] The same rule is found with the Abipones also, where the husband can repudiate his wife on the slightest pretext.[744]
The conclusion to be drawn from all these facts is, that there are no more fixed rules for divorce than for marriage in savage societies. But, as the wife is more often bought or captured, it is quite natural that her owner should send her away at his pleasure. Wherever divorce is mutual, it is when the wife costs little to obtain, or where the ties of relationship are well defined between the members of her and her tribe, or her gens, who then think themselves bound to afford her a certain protection.
II. Divorce and Repudiation among Barbarous Peoples.
These free and fragile marriages are found in societies more civilised than those of the Polynesians and the American Indians. Bruce tells us that in Abyssinia marriage is in reality only a free union, without any sanction or ceremony; couples unite, part, and re-unite as many times as they like. There are neither legitimate nor illegitimate children. In case of divorce the children are divided; the girls belong to the father, and the boys to the mother.[745]
M. d’Abbadie affirms also that Abyssinian marriage is purely civil and always dissoluble; he adds that it is dotal, and co-exists, for rich men, with the concubinate.[746] It is quite certain that divorce is largely used in Abyssinia, since Bruce says he has seen a woman surrounded with seven former husbands. In Hayti, the only negro country that is civilised in European fashion, we find either preserved or instituted, by the side of legal monogamic marriage, free unions which recall the Roman concubinate. The persons thus paired are called “placed”; they suffer no contempt on this account, and their children have the same rights as those of persons legally married. There are at Hayti ten times more “placed” persons than married ones; they separate less often than the latter are divorced, and have better morals.[747] But in general the free union, or, what comes to the same thing, the power of divorce, left to the two united parties, is rare enough in countries more or less civilised. Most usually it is the husband who, even without any cause of adultery in the wife, has the right to repudiate her. It is thus, for example, at Madagascar, where, in order to repudiate his wife, a husband need simply declare his resolution to the magistrate who has received the notification of the marriage; it is only necessary for him to pay for the second time the hasina, or duty on marriage. When once he has declared his intention, the husband has still twelve days’ grace to retract it; but if he exceeds this delay the repudiated wife becomes her own mistress and free to marry again.[748]
In Kordofan, among the Djebel-Taggale,[749] the great legal motive for repudiation in all the primitive legislations, sterility, justified proceedings that were absolutely savage. The ceremony was called the nefir (drum or trumpet). A woman being apparently sterile, the husband, before repudiating her, called noisily together all his male relatives, who, after a feast, all had intimacy with the barren wife. If this heroic expedient did not result in pregnancy, the husband sold his wife by auction, agreeing to return to his obliging relatives the difference, if any, between the first price and the sum she would fetch in the auction. Extraordinary as this custom of nefir may seem to us, it is, apart from the final sale, but the repetition with more shamelessness of analogous practices in India, and even in ancient Greece, in case of well-proved sterility in the wife.
The Bedouins and the Touaregs in general have nothing comparable to the nefir of the Djebel-Taggale, but among them the extreme facility and excessive frequency of repudiations renders marriage nearly illusory. According to Burckhardt, repudiation is so common with the former that a man sometimes has fifty wives in succession.[750] With the Touaregs of the Sahara the wives themselves can demand divorce, and we have seen that they thus force their husbands to bend to monogamy, in spite of the Koran and of their polygamic appetites.[751] It seems that in certain of their tribes the women make it a point of honour to be often repudiated. Only to have one husband is, in their eyes, a humiliating thing, and they are heard to say: “Thou art not worth anything; thou hast neither beauty nor merit; men have disdained thee, and would have none of thee.”[752]