Page:The Green Bag (1889–1914), Volume 06.pdf/442

 Chapters from the Ancient Jewish Law.

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CHAPTERS FROM THE ANCIENT JEWISH LAW. By David Werner Amram, of the Philadelphia Bar. III.

PROCEEDINGS IN DIVORCE.

THE divorce procedure of the ancient Hebrews was a simple matter. Abra ham, at the instigation of his wife Sarah, dismissed his wife Hagar; and this act of divorce is recorded with naive simplicity in the Book of Genesis (xxi. 14) : " And Abraham rose up early in the morning and took bread and a bottle of water and gave it to Hagar, putting it on her shoulder, and the child, and sent her away." In the patriarchal state of society, all persons who were members of the family, whether wives, children, kinsmen or slaves, were uncondi tionally subject to the power of the oldest male ascendant, the patriarch. The exercise of this power was qualified only by the subtle influence of customs and traditions, which in course of time crystal lized into law and became acknowledged and authoritative precedents. The instance cited shows the power of the father and husband, exercised it is true, according to the Biblical story, against his will and in deference to Sarah's desire, but neverthe less indicative of his absolute right. And it is to be noted that Hagar was not the concubine or slave of Abraham, but his wife. (Gen. xvi. 3.) There is no formality mentioned in con nection with this act of divorce except that he gave her some food and water before sending her away. This, however, is to be taken rather as an act of mercy than of law. As long as the patriarchal family was nomadic, and never permanently in contact with other families, the simple " sending away " may be assumed to have been suffi cient as an act of divorce; but when the herdsmen became agriculturists with fixed habitations, new conditions arose which gradually changed the ancient forms of

procedure. With the introduction of writ ing, the act of divorce, like all other legal acts, was attested by a writing which was given to the wife as proof of her divorce and of her eligibility as a candidate for a second marriage. It enabled her to prove property in herself. For, as a maid she was under the power of her father, as a wife under the power of her husband, but as a divorced woman she became her own mis tress. When we reach the period (about 621 B.C.) when the law of Deuteronomy (xxiv. 1-4) was promulgated, the procedure consisted of three steps : the husband had to write a Bill of Divorcement, give it to the wife, and send her from his house. The omission of either formality was fatal and rendered the divorce null and void. The Deuteronomic Code, in the passage referred to, speaks with legal precision and brevity. To understand it clearly the traditions and laws of the Talmud must be consulted. And indeed it is entirely impossible to understand the laws of Bible without a knowledge of the Talmud. Many of the Talmudic laws date back to a hoary antiquity and are contemporaneous judicial interpretations of the Biblical laws of which they are supposed to be a later expansion and commentary. Not every man could write a Bill of Divorcement, and in most cases the ser vices of a scribe had to be called into requisition. As the scribes were usually of the priestly class, the act of divorce was invested with a certain degree of solemnity. The most ancient simplicity gave way to a greater complexity in procedure, and the system which has been preserved in the Talmud was established. Here the un trained intellect of the average man was at