Like the Bible, and nearly all other legislations, the Koran only allows the marriage of a widow after a certain term of delay. In the Koran, this term is four months and ten days;[856] and if the woman is with child, the delay must extend till after her delivery. But there are some pregnancies that are either imaginary or fictitious, and which come to nothing, yet in Arab countries successions are suspended on account of them. If, at the moment of her husband’s death, a woman thinks herself with child, she places her girdle on the body of the deceased; note is taken of it, and the time awaited. If the waiting is vain, at the end of eleven months the widow is visited and examined by matrons; and if nevertheless the professed pregnancy has no result, the child who refuses to be born is called “asleep” for an indefinite time. Henceforth the widow is free, and if she ends by becoming a mother, her child, awaited so long, is reputed to be the son of the husband dead years before, and inherits from him.[857]
This singular prejudice is common to the Kabyles and to the Arabs. A number of Mussulman legists have vainly tried to overcome it. All that they have been able to do is to limit to four or five years, generally to four, the duration of this pretended “sleep” of the fœtus.[858]
The widow has not been more worthily treated at the origin of Greco-Roman civilisation than in the other barbarous civilisations. It would be strange if it were so. We have seen that at Athens the woman, even when married, was part of the paternal patrimony; that the dying husband could leave her by will to a friend, with his goods, and by the same title; that at Rome the wife was bought and subjected to the terrible right of the marital manus.
For a long time at Rome, as in China at the present day, the widows who did not marry were particularly honoured. The widower married again immediately after his wife’s death; widows, on the contrary, were in any case forbidden to marry before a delay of six months, afterwards extended to twelve months, and that under pain of infamy for the father who had made the marriage, for the husband who had taken the widow, and later for the re-married woman also, when infamy also applied to women. By degrees Roman customs and laws improved on this point as on others. The Leges Julia and Papia Poppæa encouraged second marriages, in opposition to the ancient prejudice; the Institutes ordained that when the widow was poor and without dowry, she could inherit from her husband one-fourth if there were three children, and a full masculine share if there were none.[859] But the triumph of Christianity was the signal for a retrograde movement. Constantine returned to the old ideas of primitive Rome, and went so far as to inflict on second marriages pecuniary penalties, which were to be paid to the children of the first marriage.[860] In acting thus, the neophyte emperor was acting up to the logic of the Church, in whose eyes marriage itself was an evil rendered necessary by the sin of Adam, and by whom second marriages were emphatically condemned.[861]
From the fusion of Christian doctrines with the gross customs of more or less barbarous European races, on the subject of women and marriage, there resulted for the widow a position of extreme subjection. Among the Germans, as among the Afghans and Kabyles, the widow became again the property of her own family, and in order to marry her, it was necessary to pay a special price, the reipus, which was double the mundium or price of the first purchase.[862] The Salic law decreed that at the age of fifteen the son should be the guardian of his widowed mother. The Lombard law decides also that the widow shall not marry again without the consent of her son (section xxxvii.); and this consent was necessary even for her to enter a convent. Thus Theodoric, adopting with barbarous fury the opinions of the Church on second marriages, promulgated a law interdicting widows from marrying again, and condemning to the flames any man who should be convicted of having had commerce with them.
These objections to second marriage, or at least the blame attached to them by public opinion, are common in many ancient societies. We have found them in India, in ancient Rome and Greece, etc. We can only attribute this way of thinking, senseless and unjust as it is, to a sort of delirium of proprietorship in the husband, who pretends still to rule over and possess his wife from beyond the tomb, but chiefly to the desire of avoiding disturbances in the transmission of hereditary wealth, when the women were able to have possessions of their own. The levirate, of which I am now going to speak, remedied the latter inconveniences.
III.—The Levirate.
The levirate is the name given to the obligation imposed by custom or law on the brother of the deceased husband to marry his sister-in-law when she became a widow. This custom of the levirate, which for a long time has been thought peculiar to the Hebrews, is very widely spread, and is found among races most widely differing from each other. There is surely good reason for it in savage or barbarous societies where for a woman abandonment would mean death.
I will enumerate some of the peoples who practise the levirate, beginning as usual with the inferior races.
We meet the levirate first in Melanesia, at New Caledonia, where the brother-in-law, whether he be already married or not, must marry his brother’s widow immediately.