Abbildungen der Seite
PDF
EPUB

sume, must have been legally proved first. The Spartans seldom divorced their wives; indeed the ephori fined Lysander for repudiating his wife. Ariston (Herod. vi. 63) put away his second wife, but it seems to have been done rather to have a son, for his wife was barren, than according to the custom of the country. Anaxandrides (Herod. v. 39) was strongly urged by the ephori to divorce his barren wife, and on his not consenting, the matter was compounded by his taking another wife: thus he had two at orce, which Herodotus observes was contrary to Spartan usage.

The common Roman term for Divorce is Divortium. It is said that the word Repudium, corresponding to which we have the word "repudiate," applied only to the dissolution of a contract of marriage (sponsalia), and not to an actual marriage (Dig. 50, tit. 16, s. 101): but Divortium and Repudium are sometimes used indifferently. Plutarch states (Romulus, c. 22) that originally the husband alone had the power of effecting a divorce, which may be true, but it was not so in the late period of the Republic and under the Empire. When the wife was in manu viri, a technical term that implied she was in the relation of a daughter to her husband, it is not easy to conceive how the wife could effect a divorce. In other cases, it is easily conceivable. The essence of the nature of a Roman marriage was abiding consent, and if either party expressed a dissent to the union, it followed that it was at an end. The first instance of a divorce at Rome, according to Gellius (iv. 3), was the case of Sp. Cervilius Ruga, who put away his wife because she was barren. As to this story, see Savigny, Zeitschrift der Geschichthe Rechtswissenschaft, v. 269. Divorces were common at Rome in the time of Cicero, as we may collect from his writings; and Cicero himself divorced his aged wife Terentia and took a young wife in her place. The portion (dos) which the wife brought with her to support part of the matrimonial expenses, was as a general rule returned to the wife when she was divorced by the husband, or when they separated by consent: this condition tended somewhat to check a

husband from divorcing his wife on light grounds.

As the children of a Roman marriage were in the power of the father, and belonged to him alone, there was no difficulty in divorce as to this point. Whether the marriage continued to subsist or not, the children were alone at the disposal of the father. But a constitution of Diocletian and Maximian empowered a competent judge to declare whether the children should stay with the father or with the mother (Cod. v. tit. 24). some cases, where the wife was to blame, as for instance if she had committed adultery, a sixth part of the dos might be retained by the husband.

In

As to the form of divorce, it was necessary that there should be some distinct declaration of the intention of the husband or wife, or of both, to separate. In some cases, a written notice was delivered. The Lex Julia de Adulteriis required seven witnesses to the divorce, and a freedman of the person who made the divorce. One object of the Lex Papia et Poppaa, which, as well as the Lex Julia de Adul teriis, was passed in the time of Augustus, was to impose some restraint on divorces. The practice of divorce continued under the Christian Emperors, but subject to the observance of certain forms, and certain penalties.

Among the antient Britons, it may be collected from the laws of Howel the Good that the husband and wife might agree to dissolve the marriage at any time; in which case, if the separation took place during the first seven years of the marriage, a certain specified distribution of the property was made, but after that period the division was equal. No limit was set to the husband's discretion in divorcing his wife, but the wife could only divorce her husband in case he should be leprous, have bad breath, or be impotent, in which cases she might leave him and obtain all her property. The parties were at liberty to contract a fresh marriage; but if a man repented of having divorced his wife, although she had married another man, yet if he could overtake her before the consummation of the marriage, or, as the law expresses it, "with one foot in the bed of

her second husband, and the other out- | ground of adultery committed by the side," he might have his wife again. other; for outrageous conduct, or illusage; on account of condemnation to an infamous punishment; or to effect it by mutual consent, expressed under certain conditions. By the same code a woman could not contract a new marriage until the expiration of ten months from the dissolution of the preceding.

The law of Scotland relating to divorce differs widely from that in England: there, a divorce à vinculo matrimonii is a civil remedy, and may be obtained for adultery, or for wilful desertion by either party, persisted in for four years, though to this a good ground of separation is a defence. But recrimination is no bar to a divorce, as it is in England.

In the Dutch law there are only two causes of divorce à vinculo matrimonii, adultery and desertion.

In Spain the same causes affect the validity of a marriage as in England, and the contract is indissoluble by the civil courts, matrimonial causes being exclusively of ecclesiastical cognizance. (Instit. Laws of Spain.)

The law of France, before the Revolution, following the judgment of the Catholic Church, held marriage to be indissoluble; but the legislators of the early Revolutionary period permitted divorce at the pleasure of the parties, where incompatibility of temper was alleged. In the first three months of the year 1793, the number of divorces in the city of Paris alone amounted to 562, and the marriages to 1785, a proportion not much less than one to three; while the divorces in England for the previous century did not amount to much more than one-fifth of the number. (Burke's Letters on a Regicide Peace.) Burke further states that he followed up the inquiry through several subsequent months till he was tired, and found the results still the same. It must be remembered however that Burke wrote in the spirit of an advocate; that the period he chose was that immediately following the promulgation of the law, when all couples previously discontented with each other obtained divorces; and that if his calculations had fully borne out his statement, he would have given them in his pamphlet, which was written for a political purpose, and he would not have rested satisfied with indefinite allegations. It was generally admitted however that the licence was too great. The Code Napoleon accordingly restricted the liberty, but still allowed either party to demand a divorce on the

On the restoration of the Bourbons a law was promulgated (8th May, 1816), declaring divorce to be abolished; that all suits then pending for divorce, for definite cause, should be for separation only, and that all steps then taken for divorce by mutual consent should be void; and such is now the law of France.

In the United States, marriage, though it may be celebrated before clergymen as well as civil magistrates, is considered as a civil contract. The causes of divorce, and the facility or difficulty of obtaining it, are by no means the same in the several States. The more general causes of a divorce à vinculo matrimonii are, former marriage, physical incapacity, or consanguinity; by the Connecticut law, fraudulent contract; and by the New York code, idiotcy and insanity, and either party being under the age of consent. Adultery is also a cause of divorce à vinculo matrimonii; and the laws of some of the States prohibit the guilty party from marrying again. If the husband or wife is absent seven years, or by the laws of some States, three years, and not heard from, the other is at liberty to marry again; and in some States, if the husband desert the wife, and make no provision for her support during three years, being able to make such provision, the wife can obtain a divorce. Extreme cruelty in either party is also generally a cause of divorce à vinculo matrimonii. In many of the States applications to the legislature for divorce, in cases not provided for by the statutes, are very frequent. In New York and New Jersey divorce is a subject of Chancery jurisdiction, from which, as in other cases, questions of law may be referred to a jury for trial. In New Hampshire, joining the religious society of Shakers, who hold cohabitation unlawful, and continuing in that society for three years, is sufficient ground for a

divorce. But in most of the States the courts of law have cognizance of divorce. The laws prescribe the provision to be made for the wife in case of divorce, confiding to the courts however some degree of discretion in fixing the amount of alimony.

It is very questionable, says Chancellor Kent, whether the facility with which divorces can be procured in some of the States be not productive of more evil than good: and he states that he has had reason to believe, in the exercise of a judicial cognizance over numerous cases of divorce, that adultery was sometimes committed on the part of the husband for the very purpose of the divorce.

(Kent's Commentaries; Ency. Americ. Upon the general advantages of indissolubility, as opposed to unlimited divorce, see Hume's Essay on Polygamy and Divorce; Paley's Moral Philosophy; and the judgment of Lord Stowell in Evans v. Evans, 1 Hagg. Repts., 48; Milton, in his famous treatise, advocates the increased facility of obtaining a divorce; and see also Gibbon, Decline and Fall, c. 44.)

DIWAN is a Persian word familiar to readers of works relating to the East, in the sense of-1st, a senate, or council of state; and, 2nd, a collection of poems by one and the same author. The earliest acceptation, however, in which we find it employed is that of a muster-roll, or military pay-book.-The Arabic historian, Fakhreddin Râzi, informs us that when, in the caliphat of Omar, the second successor of Mohammed, the conquests of the Mussulmans assumed an extensive character, the equal distribution of the booty became a matter of great difficulty, A Persian marzbân, or satrap, who happened to be at the head-quarters of the caliph at Medinah, suggested the adoption of the system followed in his own country, of an account-book, in which all receipts and disbursements were regularly entered, along with a list, duly arranged, of the names of those persons who were entitled to a share in the booty. With the register itself, its Persian appellation (dîwân) was adopted by the Arabs. (Freytag, Locmani Fabulæ et plura loca ex codd. historicis selecta, &c., pp. 32, 33;

Henzi, Fragmenta Arabica, St. Petersburg, 1820, p. 36, et seq.) Whether a council of state was subsequently called dîwân, as having originally been a financial board appointed to regulate the list (dîwân) of stipendiaries and pensioners, or whether it was so called as being summoned according to a list (dîwân) containing the names of all its members, we are unable to determine. The opinion that a body of councillors should have received this appellation, as has been asserted by some, in consequence of the expression of an ancient king of Persia, înân diwân end, “ these (men) are (clever like) devils," will scarcely be seriously entertained by any one. The word 'dîwân' is also used to express the saloon or hall where a council is held, and has been applied to denote generally a state chamber, or room where company is received. Hence probably it has arisen that the word 'divan,' in several European languages, signifies a sofa. Collections of poems in Persian, Arabic, Turkish, Hindustani, &c., seem to have received the appellation 'dîwân' from their methodical arrangement, inasmuch as the poems succeed one another according to the alphabetic order of the concluding letters of the rhyming syllables, which are the same in all the distichs throughout each poem.

DOCKET. [BANKRUPT.]

DOCTOR, one that has taken the highest degree in the faculties of Divinity, Law, Physic, or Music. In its original import it means a person so skilled in his particular art or science as to be qualified to teach it.

There is much difference of opinion as to the time when the title of Doctor was first created. It seems to have been established for the professors of the Roman law in the University of Bologna, about the middle of the twelfth century. Antony à Wood says, that the title of Doctor in Divinity was used at Paris, after Peter Lombard had compiled his Sentences, about the year 1151. (Hist. and Antiq. Univ. of Oxford, 4to. Oxf. 1792, vol. i. p. 62.) Previously those who had proceeded in the faculties had been termed Masters only. The title of Doctor was not adopted in the English Uni

versities earlier than the time of John or Henry the Third. Wood cites several instances of the expense and magnificence which attended the early granting of the higher degrees in England in the reigns of Henry III. and Edward I. (Wood, ut supr. pp. 65, 66.)

In Oxford the time requisite for the Doctor of Divinity's degree, subsequent to that of M.A., is eleven years: for a Doctor's of Civil Law, five years from the time at which the Bachelor of Laws' degree was conferred. Those who take this degree professionally, in order to practise in Doctors' Commons, are indulged with a shorter period, and permitted to obtain it at four instead of five years, upon making oath in convocation of their intentions so to practise. For the degree of M.D., three years must intervene from the time of the candidate's having taken his Bachelor of Medicine's degree. For a Doctor's degree in Divinity or Law three distinct lectures are to be read in the schools, upon three different days: but by a dispensation, first obtained in convocation or congregation, all three are permitted to be read upon the same day; so that by dispensation a single day is sufficient in point of time for these exercises. For a Doctor's degree in Medicine, a dissertation upon some subject, to be approved by the Professor of Medicine, must be publicly recited in the schools, and a copy of it afterwards delivered to the Professor.

In Cambridge a Doctor of Divinity must be a Bachelor of Divinity of five, or an M.A. of twelve years' standing. The requisite exercises are one act, two opponencies, a Latin sermon, and an English sermon. A Doctor of Laws must be a Bachelor of Laws of five years' standing. His exercises are one act and one opponency. Doctors of Physic proceed in the same manner as Doctor of Laws. For a Doctor's degree in music, in both Universities, the exercise required is the composition and performance of a solemn piece of music, to be approved by the Professor of the Faculty. (Oxf. and Camb. Calendars.)

Coloured engravings of the dresses worn by the doctors of the several faculties of Oxford and Cambridge will be

found in Ackermann's History of the Univ. of Oxford, 4to., 1814, vol. ii. p. 259, et seq.; and in his History of the Univ. of Cambridge, 4to., 1815, vol. ii. p. 312, et seq.

DOCTORS' COMMONS, the College of Civilians in London, near St. Paul's Churchyard, founded by Dr. Harvey, Dean of the Arches, for the professors of the civil law. The official residences of the judges of the Arches' Court of Canterbury, of the judge of the Admiralty, and the judge of the Prerogative Court of Canterbury, are situated there. It is also the residence of the doctors of the civil law practising in London, who live there (for diet and lodging) in a collegiate manner, and common together, and hence the place is known by the name of Doctors' Commons. It was burnt down in the fire of London, and rebuilt at the charge of the profession. (Chamberlayne Mag. Brit. Notitia.) To the college belong a certain number of advocates and proctors. [BARRISTER, p. 317; PROCTOR.] In the Common Hall are held all the principal spiritual courts, and the High Court of Admiralty.

DOMESDAY BOOK, the register of the lands of England, framed by order of King William the Conqueror. It was sometimes termed Rotulus Wintonia, and was the book from which judgment was to be given upon the value, tenures, and services of the lands therein described. The original is comprised in two volumes, one a large folio, the other a quarto. The first begins with Kent, and ends with Lincolnshire; is written on three hundred and eighty-two double pages of vellum, in one and the same hand, in a small but plain character, each page having a double column; it contains thirty-one counties. After Lincolnshire (fol. 373), the claims arising in the three ridings in Yorkshire are taken notice of, and settled; then follow the claims in Lincolnshire, and the determination of the jury upon them (fol. 375): lastly, from fol. 379 to the end there is a recapitulation of every wapentake or hundred in the three ridings of Yorkshire: of the towns in each hundred, what number of carucates and ox-gangs are in every town, and the names of the owners placed in very small

Pudsey. These supplementary volumes were published under the superintendence of Sir Henry Ellis.

character above them. The second volume in quarto, is written upon four hundred and fifty double pages of vellum, but in a single column, and in a large fair character, and contains the counties of Essex, Norfolk, and Suffolk. In these counties the "liberi homines" are ranked separate: and there is also a title of "Invasiones super Regem."

These two volumes are preserved, among other records of the Exchequer, in the Chapter House at Westminster: and at the end of the second is the following memorial, in capital letters, of the time of its completion: "Anno Millesimo Octogesimo Sexto ab Incarnatione Domini, vigesimo vero regni Willielmi, facta est ista Descriptio, non solum per hos tres Comitatus, sed etiam per alios." From internal evidence there can be no doubt but that the same year, 1086, is assignable as the date of the first volume.

In 1767, in consequence of an address of the House of Lords, George III. gave directions for the publication of this Survey. It was not, however, till after 1770 that the work was actually commenced. Its publication was intrusted to Mr. Abraham Farley, a gentleman of learning as well as of great experience in records, who had almost daily recourse to the book for more than forty years. It was completed early in 1783, having been ten years in passing through the press, and thus became generally accessible to the antiquary and topographer. It was printed in fac-simile, as far as regular types, assisted by the representation of particular contractions, could imitate the original.

In 1816 the commissioners upon the Public Records published two volumes supplementary to Domesday, which now form one set with the volumes of the Record: one of these contains a general introduction, accompanied with two different indexes of the names of places, an alphabetical index of the tenants in capite, and an "Index Rerum." The other contains four records; three of them, namely, the Exon Domesday, the Inquisitio Eliensis, and the Liber Winton., contemporary with the Survey; the other record, called Boldon Book,' is the Survey of Durham, made in 1183, by Bishop Hugh

Northumberland, Cumberland, Westmorland, and Durham were not included in the counties described in the Great Domesday; nor does Lancashire appear under its proper name; but Furness, and the northern part of that county, as well as the south of Westmorland and part of Cumberland, are included within the West Riding of Yorkshire: that part of Lancashire which lies between the rivers Ribble and Mersey, and which at the time of the Survey comprehended six hundreds and a hundred and eighty-eight manors, is subjoined to Cheshire. Part of Rutlandshire is described in the counties of Northampton and Lincoln; and the two ancient hundreds of Atiscross and Existan, deemed a part of Cheshire in the Survey, have been since transferred to the counties of Flint and Denbigh. In the account of Gloucestershire we find a considerable portion of Monmouthshire included, seemingly all between the rivers Wye and Usk. Kelham thinks it probable that the king's commissioners might find it impossible to take any exact survey of the three counties northernmost of all, as they had suffered so much from the Conqueror's vengeance. As to Durham, he adds, all the country between the Tees and Tyne had been conferred by Alfred on the bishop of this see, and at the coming in of the Conqueror he was reputed a count-palatine.

The order generally observed in writing the Survey was to set down in the first place at the head of every county (except Chester and Rutland) the king's name, Rer Willielmus, and then a list of the bishops, religious houses, churches, any great men, according to their rank, who held of the king in capite in that county, likewise of his thains, ministers, and servants; with a numerical figure in red ink before them, for the better finding them in the book. In some counties the cities and capital boroughs are taken notice of before the list of the great tenants is entered, with the particular laws or customs which prevailed in each of them; and in others they are inserted promiscuously. After the list of the

« ZurückWeiter »