This leaves the parties at liberty to marry again. On this dissolution of marriage the man is obliged to return to the woman her dowry, if it be he that sues out the Divorce; if not, she loses it. A liberty of renewal of the marriage is also granted; and this dissolution and renewal are tolerated three times, but not more. But this is sufficient to show, that the charge of a wife, with them, is little more than the charge of a maid-servant. This privilege, in Persia, is rarely made use of; but the abuses it holds out are sufficiently obvious. True, the husband must return the portion if he sue out the Divorce; but it does not require much ingenuity to perceive that he could easily adopt such a treatment of his wife as would compel her to that measure; in which case he retained it; and the secrecy with which the conjugal intercourse is carried on in those countries, would be a complete bar to all inquiry. In China, Le Comte states, that no Divorce to the husband is allowed but for Adultery, and a few other causes, which, he says, rarely • This separation among the Persians must be in the presence of the Casi, or Cheit Lesloon, (Doctor of Law.) Tavernier Trav. book 5. cap. 18. p. 243. occur. In those cases the husbands sell their wives to any one who will become a purchaser, and buy others. The infrequency of their Divorces is perhaps to be traced to the permission of concubinage, particularly when among the causes of Divorce tolerated by them is found enumerated one which, in christian countries, would not be heard of; viz. the irksomeness of the married state. The account of Le Comte does not seem easily reconcileable with this last statement; but the former is speaking of the provisions of the law, while the latter has reference to the habits of the people. It is certain that the great Chinese Lawgiver, Confucius, put away his wife on this ground. In his "Life," it is stated, that he was content with her as long as they were together; that he never kept any concubines as the custom of his country allowed, because he thought it contrary to the law of nature; but that, after a time, he divorced his wife for no other reason than that he might be free from all incumbrances and connexions, and be at liberty to propagate his philosophy throughout the empire.* * Life of Confucius, p. 28. Some of the Catholic Missionaries have remarked, that one of the chief obstacles to the introduction of Christianity among the Chinese, was the system of unrestrained intercourse of this kind which prevailed among them; and Le Comte relates two remarkable instances, where concubinage was the sole bar to a reception of the gospel; but this could not be relinquished: as in the case of the young man in the gospel, the instructor was left with sorrow for the harshness of his requirements. A law of the Algerines, mentioned by Dr. Shaw, is not a little extraordinary. A forfeiture of the Saddock, or wife's marriage portion, entitled the husband to put away his wife whenever he pleased. There was but one circumstance, (and that was still more extraordinary,) which at all tended to qualify and restrain the rash and arbitrary use of such a tenancy at will of the wife vested in the husband. It was this; that, when so put away, he could not take her again, notwithstanding the strongest solicitations were made in her favour, till she had been married and bedded to another man.* * Shaw's Travels, fol. p. 303. The laws and customs of other parts of the world have generally been characterized by less rigour than those of the European kingdoms, although in the latter great fluctuations are observable. It is time we should return to cite a few instances from among them, and conclude this fourth section of the Essay, by adding afterwards a few observations on the ancient laws of England. We have before dwelt much on the attempts of the civil law to discourage the frequency of Divorce, although they were often obliged to yield to the licentiousness of prevailing customs. The practice of the Modern Greek Church is exactly conformable to that law in this respect. Divorces were tolerated, though contrary to the laws; but afterwards greater remissness was introduced, and unlimited liberty allowed. The Patriarch, for a trifling gratuity, would disannul one marriage, and grant a dispensation for a second. Among such nations as adhere to the Greek Church the same custom prevails. The Muscovites, or Russians, divorced for slight causes; and sometimes the Bishop gave them the Bill of Divorcement. It was usual in such places as were remote from the Bishop, for the man and woman who were desirous of parting, to go to a place where two ways met, and then to pull a napkin between them till they tore it asunder, by which means they fancied their marriage dissolved. Yet, neither among them, nor in the Greek church, generally, was re-marriage allowed in early times. Afterwards, it was not prohibited. Among the canons of one John, a Metropolitan of that church, was a decree by which those who marry after Divorce were to be suspended from communion. The Visigoths* of Spain had strict laws *Rex Wisigothorum Theodosius edicti, cap. 54, causas justas repudii habet. Si maritus homicida, maleficus, aut sepulchrorum sit violator. Si mulier adultera, malifica vel agagula;" (agagula est lena.) Great care is evinced by some of the old laws, of what are termed the barbarous nations, for the protection of the chastity of women. In the warm climates of Spain and and Italy, less injuries have been made penal. By a Neapolitan Ordinance in 1571, this is carried further, and it is made a capital crime in those " che per forza baciassero le donne," &c. In a similar spirit of jealous vigilance the ecclesiastical laws of Hoel-Dha, King of Wales, A. D. 940, held, that it was a sufficient cause of Divorce, if a woman did but kiss any other man than her husband. Her dower and all her rights were forfeited by a kiss; meaning, probably, that such conduct indicated a disposition to commit this crime. Leges Wallicæ, p. 78-80, and 258. |