Page:The Green Bag (1889–1914), Volume 04.pdf/526

 Chapters from the Ancient yewish Law.

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CHAPTERS FROM THE ANCIENT JEWISH LAW. By David Werner Amram, of the Philadelphia Bar. II. CAUSES FOR DIVORCE. JEWISH law can hardly be distinguished from modern law in the number and nature of the causes which it recognizes as sufficient for divorce. The difference between the ancient Jewish and our own systems of divorce law lies in their fundamental principles : our law is founded on the principle that divorce will be granted only for cause, whereas at Jewish law the ancient principle on which the law rests is that the husband may divorce his wife at his pleasure. Rabbinical legislation, as was pointed out in the previous article, and as will be shown more fully hereafter, restricted this right and subjected it to judi cial investigation, yet the principle as such was always recognized as fundamental. There is no doubt that the same principle obtained at the English law in the remotest antiquity, but it has long since become ob solete. The conservatism of the Orient, and especially the tenacity with which the Jews held to their past would not permit them to declare positively that the principle had be come obsolete, and the Rabbis sought rather by a system of restrictive legislation to evade the logical effect of the application of this principle, than to subvert it by repeal. All systems of legislation justify divorce for the same general reason; viz., because the purpose of the marriage relation has been defeated; but the specific causes deemed sufficient for divorce differ according to the ethical view of this relation current in different countries, or according to temporary considerations of public policy. The causes for divorce at Jewish law em brace nearly all those recognized under the laws of the United States. There was one general class of cases peculiar to the Jewish law in which the Court of its own motion

decreed a divorce, even against the wish of the parties, on grounds of public policy. This power was exercised in four instances : 1. When the parties had contracted a marriage prohibited by law, such as the union of a member of the priestly tribe with a divorced woman, or of an Hebrew with a heathen woman. In one case a man having gone abroad and having been reported dead, his wife remarried; shortly thereafter he returned, and the Court compelled the second husband to divorce the woman; nor was she permitted to remarry the first, for a man could not remarry his wife after she had been married to another and had been di vorced from him. 2. The law permitted no condonation of the crime of adultery committed by the woman, and her husband was compelled to divorce her. 3. To prevent the spread of contagion, if one of the parties became afflicted with leprosy, they were obliged to separate. 4. Finally, in the case where a marriage had proved fruitless after a cohabitation of ten years, divorce was anciently decreed; though the later law abolished the right of the Courts to decree a divorce in such case of its own motion, and left the parties to sue for divorce on this ground if they so desired. It is impossible within the limits of this article to touch upon all the causes for di vorce at Jewish law; suffice it to say that with the single exception of the case where both parties agreed to the divorce, the law demanded a sound reason in every case in which the respondent defended the suit, be fore granting the divorce; if the parties agreed, the divorce was granted without any cause being shown. The wife's antenuptial incontinence was