The pagan Irish had rendered divorce useless by instituting marriages of one year, at the end of which the wife could be repudiated by the temporary husband and even ceded to another for a fresh year. These experimental marriages were made or unmade, sometimes on the first of May, and sometimes on the first of November of each year.[808]
Repudiations at the will of the husband are still in use among the Tcherkesses of the Caucasus, whose customs have more than one feature in common with those of our ancestors of barbarous Europe. With them the husband can repudiate in two manners: either by sending away his wife in the presence of witnesses, and leaving the dowry to the parents, which implies the liberty to marry again for the repudiated wife; or by simply driving the wife away, and then he can recall her again during one year.[809]
In France, under the two first races, the man could put away the woman; he could even, which is more rare and original, repudiate his family, and leave it, after a declaration before the judge, and this destroyed all rights of inheritance on both sides. Later, under the influence of the Catholic clergy, who by reason, no doubt, of their want of practical experience in the “things of the flesh,” claimed energetically the right of regulating all conjugal questions, a distinction was made between the separation of abode (quoad thorum) and complete divorce (quoad vinculum); the first only was permitted. The Church, always assuming to be immutable, maintained in theory the indissolubility of the sacramental marriage, and it needed the great movement of the French Revolution to shake for a moment the Catholic prejudice against divorce, which was incompletely re-established in our French code a few years ago. But the brutality of our ancient conjugal customs survives still, and they are not up to the level of our legislation, imperfect as that is. Many husbands always treat their wives as slaves, against whom everything is lawful, since in a hundred suits for separation or divorce there are ninety-one to ninety-three made by wives on account of cruelties and serious injuries.[810] Above all, our juries almost invariably acquit the husband who has murdered his adulterous wife. So difficult is it to “put off the old man.”
III. The Evolution of Divorce.
Our various researches on the subject of divorce have led us to nearly uniform conclusions. They all show us that, however dissimilar may be the countries or the epochs, the union of man and woman begins, with very rare exceptions, by the complete slavery of the latter, and her assimilation to domestic animals, over which man has all possible rights, a fortiori that of driving away. Then as the ages move on their course we see societies which become by degrees civilised, and in proportion to this advance the condition of the woman improves. At first the man could kill her if she displeased him; then, cases of adultery apart, he contented himself with repudiating her; next, the severity of this right of repudiation, at first unlimited, was mitigated; then it was restricted to certain well-defined cases; some rights were even granted to the repudiated woman. At length her own right was recognised to seek divorce in order to escape from intolerable treatment. At last a return was made to divorce by mutual consent, which had been allowed in a good number of primitive societies, before a rigid legislation, generally theocratic, had crystallised, in codifying them, some of the old barbarous customs. The Catholic prejudice itself, absurd as it was in regard to marriage, became humanised by time. Doubtless the Church continued in principle to condemn divorce, but she allowed a good number of cases of nullity of marriage, undoing thus with one hand what she attempted to build up with the other, and, willingly or not, compounding and compromising with “the world.”
FOOTNOTES:
[719] Moncelon, Réponses au Questionnaire de Sociologie, in Bull. de la Soc. d’anthrop., 1886.
[720] Campbell, Hist. Univ. des Voy., t. xxix. p. 343.
[721] Burchell, ibid. t. xxvi. p. 479.
[722] Schweinfurth, The Heart of Africa, vol. ii. p. 27.