Ancient India had also left the right of repudiation to the husband, but she had no place for divorce in her legislation, and had imposed no restriction on the good pleasure of the husband if there existed one of the cases enumerated by the Code:—“A wife given to intoxicating liquors, having bad morals, given to contradicting her husband, attacked with an incurable disease, as leprosy, or who has been spendthrift of his wealth, ought to be replaced by another.” “A sterile wife ought to be replaced in the eighth year; the wife whose children are all dead, in the tenth year; the wife who only bears daughters, in the eleventh; the wife who speaks with bitterness, instantly.”[785] “For one whole year let a husband bear with the aversion of his wife; but after a year, if she continues to hate him, let him take what she possesses, only giving her enough to clothe and feed her, and let him cease to cohabit with her.”[786]
Here it is no longer a question of divorce by mutual consent, nor of protective measures for the wife. If she is legally replaced without being repudiated, and then if she abandons with anger the conjugal abode, she must be imprisoned or repudiated in the presence of witnesses.[787] The prolonged absence of the husband does not set free the wife, even when she has been left without resources. She must patiently await the return of the absent master, during eight years if he is gone for a pious motive; six years if he is travelling for science or glory; three years if he is roaming the world for his pleasure. When these delays have expired, the deserted one is none the less married; she has only the power to go to seek the traveller.[788]
Like the writers of the Code of Manu, those of the Bible have thought very little of the rights of woman in legislating on divorce and repudiation.
The book of Deuteronomy, very accommodating for the husband, authorises him to repudiate his wife “when she find no favour in his eyes, because he hath found some uncleanness in her;” he has only to put a “letter of divorce” in her hand, and may not take her again, either if she is repudiated by another husband or becomes a widow.[789] With much stronger reason a man can repudiate an immodest wife.[790] As for the wife, she could only demand a divorce for very grave causes: if the husband was attacked by a contagious malady (leprosy); if his occupations were too repugnant; if he deceived her; if he habitually ill-treated her; if he refused to contribute to her maintenance; and if, after ten years of marriage, his impotence was well established, especially if the woman declared she needed a son to sustain her in her old age.[791] But even then it was the husband who was reputed to have sent away his wife, and she lost her dowry.
All these antique legislations bear on the woman with shameful iniquity. The most humane have confined their efforts to placing a few slight restrictions on the brutal good pleasure of man, which nothing holds back in savage societies. But it is important to notice that certain tribes, still more or less buried in savagery, have regulated divorce with humanity enough and equity enough to put to shame the theocratic legislators of the great barbarian societies.
We discover again this iniquitous spirit in regard to the respective situations of the man and the woman in marriage in the Greco-Roman world, but it becomes moderated as ancient civilisation progresses. In primitive Greece the right of repudiation is left to the man, and he uses it whenever he thinks he has legitimate motives for doing so.[792] This right continued in more civilised Greece, but it was gradually restricted. Nevertheless, it was always a great dishonour for a woman to be repudiated. Euripides makes Medea say, “Divorce is always shameful for a woman.” In Andromachus, Menelaus, speaking of his daughter Hermione, said: “I will not that my daughter should be driven from the nuptial bed; save that, all that a woman can suffer is relatively without importance; but for her to lose her husband is to lose her life.” At Athens repudiations were frequent, and they would have been more so if considerations of interest had not often hindered the good pleasure of the master. He was obliged, in fact, by the conditions of the law, in repudiating his wife, to restore her dowry, or pay interest at the rate of nine oboles.[793] Moreover, the relatives who were guardians of the woman could claim by law a pension for her maintenance.[794] A personage of Euripides cries mournfully: “The riches that a wife brings only serve to make her divorce more difficult.”[795] However, the right of divorce was recognised for women, but custom held the laws in check by rendering it difficult for wives to perform any public action, and by imposing on them the confinement of the gyneceum.[796]
At Rome divorce evolved more rapidly and more completely than in Greece. In primitive Rome we see at first, as usual, the right of repudiation allowed to the husband and forbidden to the wife. “Romulus,” says Plutarch, “gave the husband power to divorce his wife in case of her poisoning his children, or counterfeiting his keys, or committing adultery, and if on any other account he put her away she was to have one moiety of his goods, and the other was to be consecrated to Ceres.”[797] The Roman husband could also put away his wife for sterility.[798] He was, however, obliged to assemble the family beforehand for consultation. If the marriage had been contracted by confarreation it had to be dissolved by a contradictory ceremony, diffarreation.[799] In the ancient law, when the crime of the woman led to divorce, she lost all her dowry. Later, only a sixth was kept back by adultery, and an eighth for other crimes.[800] At length divorce by consent (bonâ gratiâ) was introduced in spite of the censors; and then both parties had liberty of divorce, only with certain pecuniary disadvantages for the husband whose fault led to the divorce. Thus the adulterous husband lost advantage of the terms which usage accorded for the restitution of the dowry. In the last stage of the law the guilty husband lost the dowry, or the donatio propter nuptias. Inversely, if the wife divorced without a cause, the husband retained a sixth of the dowry for each child, but only up to three-sixths.[801] The formula of the Roman repudiation recalls by its energetic conciseness the Kabyle formula, and it seems especially to relate to the property: Res tuas habeto.[802] The wife, even though subjected to the manus, obtained at last the power of divorce, by sending the repudium to her husband, who was then forced to set her free from the manus.[803] In short, divorce became in time very easy. Cicero repudiated his wife Terentia in order to get a new dowry. Augustus forced the husband of Livia to put her away, although she was with child. Seneca speaks of women counting their years, not according to the Consuls, but to the number of their husbands. Juvenal quotes a woman who was married eight times in five years. St. Jerome mentions another who, after having had twenty-three husbands, married a man who had had twenty-three wives.
Constantine, humbly obedient to the Christian spirit which had invaded his base soul, restricted the cases of divorce to three for each spouse, but always admitted mutual consent, and under Justinian the full liberty of divorce reappeared in the Code.[804]
From its origin Christianity combatted the morals called pagan, which name even was a reproach. Abandoning the modest reality, it lost anchor from the first, and was drowned in a sea of dreams. Marriage, instead of being simply the union of a man and a woman in order to produce children, became mystic; it was the symbol of the union of Christ with his church; it was tolerated only, and the church especially condemned divorce. Nevertheless, custom and good sense held out a long time against ecclesiastical unreason, and it was very slowly, in the twelfth century only, that the civil law prohibited divorce.[805] St. Jerome had allowed, as did afterwards the Christians of the East, that adultery broke the bond of marriage as well for the woman as the man, which is simply just; but this sentiment was condemned and anathematised by the Council of Trent,[806] which thus returned, contrary to the opinion of Papinian and the ancient jurists, to savage customs, which make the wife the slave, and not the companion, of her husband.
Among the Germans and the Scandinavians, the man alone had the right of repudiation according to the almost universal usage of barbarous peoples; however, divorce by mutual consent was tolerated.[807] The Salic law also permitted divorce, and we find in Marculphus the form of an act of divorce by mutual consent. “The husband and wife, such and such a one, seeing that discord troubles their marriage and that love does not rule in it, have agreed to separate, and leave each other mutually free, without opposition from either party, under pain of a fine of one pound.”