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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 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.
about Divorce. Those of King Euricus expressly forbid it, save for Adultery. In Italy, those of King Theodoric ratified among the Ostrogoths the old Saxon law, which was the same as Constantine's, mentioned in a former part of the Essay. The Ancient Germans, and the nations descended from them, allowed of Divorce, if the wives had been taken without any marriage solemnity; the mode of executing which power was by declaring before seven witnesses, (advocates,) and five other persons, that they did not do it for any vice or failing in them, but because they liked some other better. These laws bear date in the sixth century, and consequently before those nations had embraced Christianity; but if the marriage ceremonies had been of a more formal nature, nothing but the death of one of the parties, or the infidelity of the wife to the marriage bed, could dissolve it; and, after they embraced the Christian Religion, they were still further confirmed in these sentiments of the sacredness of the marriage tie. Voluntary separations, however, became frequent among them, and monkish vows of chastity contributed to this abuse.
Of the Gallican Church we have already, in part, spoken. The Council of Elvira refused the communion, even at the hour of
death, to the woman, who, without lawful cause, forsook her husband, and married another. By another regulation of that same Council, Adultery was considered such a cause; she might forsake in that case, but not marry again, and she would be debarred the communion till after the death of her first husband. In those days of superstition this was a serious restraint.
In the seventeenth century we have an account of a Divorce obtained by one Polycarp Sengebera, a learned civilian, against his wife, by reason of her Adultery. The celebrated Giles Menage (the Varro of that time) was the plaintiff's advocate. The proofs of the crime were decisive, but the penalty they regarded as inconsiderable: the offending wife was merely," say they, "placed in a nunnery for solitary confinement." So slight So slight this, that we may well cry out, as in Juvenal's time, "Ubi nunc lex Julia dormis ?"* What is become of the Roman laws, of the laws of Augustus, of Constantine, of Justinian ?" It would have been well had no greater leniency ever afterwards marked the character of the people, and made that nation so famed for gallantry.
*Juv. Sat. ii. v. 37.