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I
HARVARD COLLEGE
LIBRARY
BEQUEST OF
Lee M. Friedman '93
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I
A GET OR HILL OF DIVORCE. (See p. 157.)
THE
Jewish Law of Divorce
ACCORDING TO
BIBLE AND TALMUD
WITH
SOME REFERENCE TO ITS DEVELOPMENT IN
POST-TALMUDIC TIMES
BY
DAVID WERNER AMRAM, M.A., LL.B., (Univ. of Penna.)
Member of the Philadelphia Bar
f
PHILADELPHIA
1896
COPYRIGHTED, 1896
BY DAVID WERNER AMRAM
PRESS OF
EDWARD STERN & CO., INC.
PHILADELPHIA
DEDICATED
TO
UY FRIEND AND TEACHER
The rev. DR. MARCUS JASTROW
PREFACE.
IN the year 1888, a clergyman of the Protestant
^ Episcopal Church was tried in the Ecclesi-
astical Court of the Diocese of Pennsylvania, upon
the charges of immorality and breach of his ordi-
nation vow. His chief offense was his second
marriage after he had been divorced from his first
wife, because of her desertion, a ground of divorce
not recognized by the Church. The most interest-
ing question of law in the case arose out of the
view which the Church took on the subject of
Marriage and Divorce. The consideration of this
question led me to inquire into the Jewish law on
the subject as found in Bible and Talmud for the
purpose of understanding the relation between two
such apparently dissimilar texts as Deuteronomy
xxiv, 1-4, and Matthew xix, 3-9.
Deeper interest in the subject led to further
study and eventually to the preparation of the
mass of accumulated material for publication.
May 16, 1896.
CONTENTS.
CHAPTER I.
INTRODUCTORY. p^^^
The Value of the Study of Biblical and Talmudic Laws
— The Evolution of the Law— The Torah — The
Chain of Oral Tradition— The Mishnah— The Dis-
putes of the Pharisees and Sadducees — The Ge-
mara— The Authority of the Talmud — The Codes
of Maimonides, Asheri and Karo— The Law a Liv-
ing Organism 9
CHAPTER n.
THE ANCIENT THEORY OF DIVORCE.
The Patriarch and his Family.— His Absolute Power
— The Right of the Husband to Divorce his Wife
at his Pleasure His Right pre-Mosaic — Restric-
tions laid upon him by the Deuteronomic Code —
The Law of the False Accusation of Antenuptial
Incontinence — The Law of the Ravisher. — The
Protest of Malachi 22
CHAPTER HI.
THE VIEWS OF THE TALMUDISTS AND OF JESUS.
The Discussion between the Schools of Hillel and Sham-
mai— Philo — Josephus — The Dicta of Jesus — Ethi-
cal Views — Divorce by Mutual Consent — Divorce
Sometimes Recommended 32
4 CONTENTS.
PAGE
CHAPTER IV.
LAWS OF THE MISHNAH RESTRICTING THE HUS-
BAND'S RIGHT TO DIVORCE.
Modifying the Severity of the Biblical Laws of the
False Accusation of Antenuptial Incontinence and
of the Ravish er — The Insane Wife— The Captive
— The Minor— The Formalities of Divorce Pro-
cedure — The Law of the Wife's Dowry — Denial
of the Husband's Right to " Annul the Bill of
Divorce " — When the Husband is non compos men-
tis — Deaf-Mute — The Culmination of these Re-
strictions in the Decree of Rabbi Gershom of
Mayence 41
CHAPTER V.
THE wife's RIGHT TO SUE FOR DIVORCE.
The Germ of the Wife's Right Found in the Bible— Juris-
diction of the Courts to Compel the Husband to
Grant the Bill of Divorce — The Question of Duress
— The Acts of non-Jewish Courts— -The Wife could
Sue for Divorce, but could not Give a Bill of Di
vorce to her Husband —Influence of Roman Law
during the last Days of the Jewish State .... 54
CHAPTER VI.
CAUSES ENTITLING THE WIFE TO A DIVORCE UNDER
TALMUDIC LAW.
False Accusation of Antenuptial Incontinence — Re-
fusal of Conjugal Rights — Impotence— Vow of Ab-
stention — Priest's Wife — Physical Blemishes, etc.
— Leprosy— -Non-support — Restricting Wife's Law-
ful Freedom — Wife-beating— Desertion — Apostasy
— Licentiousness — Divorce of Betrothed Wife . . 63
CONTENTS. 5
PAGB
CHAPTER VII.
RECONCILIATION AND REMARRIAGE.
Attempt to Reconcile the Couple a Duty of the Rab-
bis Under the Law—Rabbi was Legal and Spirit-
ual Adviser — Absolving Husband from Vow to Di-
vorce his Wife— Reconciliation after the Divorce
has taken place— Remarriage of Divorced Couple —
— Prohibition of the Remarriage of the Divorced
Couple after the Wife had been Married to An-
other—The Deuteronomic Law — Views of Philo
and Jesus — Mohammedan Law — The Issue of
such Unlawful Marriage is nevertheless Legitimate
— Other Persons whom the Divorced Wife may not
Marry 78
CHAPTER VIII.
JUDICIAL SEPARATIONS UNDER THE QUASI-CRIMINAL
JURISDICTION OF THE RABBIS.
Incest — Marriage of Hebrew and Heathen — The Great
Reform of Ezra — Mamzer — Nethin - Adulteress
and Paramour — The Ordeal of the Bitter Waters
— Lepers — Forbidden Marriages of the Priests —
Remarriage of the Divorced Couple after the Wife
had been Married to Another — Yebama — Childless
Marriages 89
CHAPTER IX.
THE LEGAL AND SOCIAL STATUS OF THE DIVORCED
WOMAN.
Divorced Woman is ^y^Z/i/m— Cannot Marry a Kohen
(Priest) — Under the Old Law no Odium Attached
to the Divorced Woman — Change Under Later Law
CONTENTS.
PAGE
— Divorced Woman Liable for her Torts — Bound
by her Vows — She may Give Herself in Marriage
to Anyone — If Suspected of Adultery she Cannot
Marry her Paramour — Nor the Messenger Bringing
her Bill of Divorce — Nor the Rabbi who Refuses
to Absolve her Vows— She must not Marry within
Three Months after her Divorce loi
CHAPTER X.
THE PROPERTY RIGHTS OF THE DIVORCED WOMAN
AND THE CUSTODY AND MAINTENANCE
OF HER CHILDREN.
The Kethubah— The Biblical Dowry— The Ordinance
of Shimeon ben Shetah — The Lien of the Kethu-
•
bah — The Wife could not Waive her Rights under
the Kethubah— Dowry at Mohammedan Law— The
Amount of the Kethubah — Increase of the Kethu-
bah — Payment of the Kethubah -Wife's Separate
Estate — Earnings, etc., of Divorced Wife — Pre-
scriptive Rights against her Former Husband —
Cases in which the Divorced Wife lost her Kethu-
bah by Reason of her Misconduct — Custody of
Children of Divorced Woman —Nurslings — Roman
Law as to Custody — Rabbinical Decisions — Support
of Children at Roman Law and Jewish Law. . . iii
CHAPTER XI.
THE BILL OF DIVORCE (GET).
Antiquity of the Bill of Divorce — Supposed by Rab-
binical Writers to have been known to Abraham
— Peculiar to the Jews— Arabian Form of Divorce
— Form of Divorce among Greeks and Romans —
Bills of Divorce prepared in the non-Jewish Courts 132
CONTENTS. 7
PAGE
CHAPTER XII.
PREPARING THE BILL OF DIVORCE (GET).
Divorce Procedure, at first Simple, Became Complex —
Husband Must Give the Order to Prepare the Get
with the Intention of Divorcing His Wife — What
is Deemed a Sufficient Order to the Scribe and
Witnesses — Exceptions in Favor of Persons in Sit-
uation of Danger, etc. — Uses of the Bill of Divorce
— Divorce by a Mute Husband — Writing the Get
—The Scribe — Fees of the Scribe— The Writing
Materials 142
CHAPTER XIII.
THE FORM OF THE BILL OF DIVORCE (GET)
AND THE GET "ON CONDITION."
Maimonides* Form — Blank Forms— The Folded Get
— The Essentials of a Get — Date — Dies juridici —
Names — Words of Separation — Clauses in Re-
straint of Marriage — The Get ** On Condition "
— Origin of the Right of the Husband to Annex
Conditions to his Bill of Divorce — Wife Could Ac-
cept or Reject — Condition Must be Strictly Com-
plied With — On Condition of the Husband's Death
—On Condition of his Failure to Return 156
CHAPTER XIV.
ATTESTATION AND DELIVERY OF THE BILL OF
DIVORCE (get).
The Get was Attested by Two Witnesses — Who were
Personally Acquainted with the Husband and Wife
— The Delivery of the Get was Essential to Com-
plete the Divorce — Method of Delivery— Delivery
8 CONTENTS.
PAGE
to Minor Wife — Delivery by Messenger — Presump-
tion that the Husband is Alive at the Time the
Messenger delivers the Get — Who may be Mes-
senger — The Messengers of the Husband — The
Messengers of the Wife— Sub-Messengers .... 171
CHAPTER XV.
WHEN THE GET IS NULL AND VOID, OR LOST.
The Husband's Right to Annul the Get Denied by Rab-
ban Gamaliel— Attempts by Common Barrators to
Cast Doubt on Divorce Proceeding — Ban of Ex-
communication — Proof of Divorce when Get is Lost
— Uncorroborated Statement of the Divorced Wife 186
CHAPTER XVI.
SEDER HA-GET.
Rules of Procedure in Divorce, as reported by Rabbi
Joseph Karo in the Shulhan Arukh, Treatise Eben
Haezer, Section 154, with occasional notes by Rabbi
Moses Isserles 192
List of Principal Works Consulted 205
Glossary 209
Index 2 '5
CHAPTER I.
INTRODUCTORY.
The Value of the Study of Biblical and Talmudic Laws—The
Evolution of the Law— The Torah — The Chain of Oral
Tradition— The Mishnah — The Disputes of the Phari-
sees and Sadducees — The Gemara— The Authority of
the Talmud — The Codes of Maimonides, Asheri and
Karo — The Law a Living Organism.
Sir Henry Sumner Maine, in his epoch-making
"Ancient Law," calls attention, in several passages,
to the almost universal neglect of the laws of the
ancient Hebrews by students of comparative jur-
isprudence and the philosophy of the law. He
shows how the study of the Biblical records would
have corrected the errors of the philosophers of
France during the latter part of the eighteenth
century. In that period of intellectual travail,
when society was drifting from its ancient moor-
ings and the philosophers were trying to devise a
system of law in harmony with the new social con-
ditions, "there was but one body of primitive
records which was worth studying — the early his-
tory of the Jews. But resort to this was prevented
by the prejudices of the time. One of the few
characteristics which the school of Rousseau had
in common with the school of Voltaire was an
I (9)
10 THE JEWISH LAW OF DIVORCE.
utter disdain of all religious antiquities ; and, more
than all, of those of the Hebrew race. It is well
known that it was a point of honour with the rea-
soners of that day to assume, not merely that the
institutions called after Moses were not divinely
dictated, nor even that they were codified at a
later date than that attributed to them, but that
they and the entire Pentateuch were a gratuitous
forgery, executed after the return from the Cap-
tivity. Debarred, therefore, from one chief secu-
rity against speculative delusion, the philosophers
of France, in their eagerness to escape from what
they deemed a superstition of the priests, flung
themselves headlong into a superstition of the
lawyers " (/. e,y The Theory of the Law of Nature).^
While it is true that the character of the preju-
dice against the use of the Hebrew records has
changed during the last hundred years, there still
remains, as Maine says in another passage, " a dis-
position to undervalue these accounts, or rather to
decline generalizing from them, as forming part of
the traditions of a Semitic people."*
If this is true of the Hebrew Scriptures, which
have become the heritage of all civilized men, it
is all the more true of the body of Jewish law
preserved in the Talmud and the Rabbinical writ-
ings. This system of law, the growth of ages, has
not yet received that share of unprejudiced atten-
tion which it deserves.
The student of comparative jurisprudence can
^ Maine's "Ancient Law," p. 86, et seq,
* Idem, p. ii8.
INTRODUCTORY. 1 1
no longer neglect the remarkable legal system of
the Hebrews, which had its rise before the begin-
nings of the Roman law, and which still regulates
the life and conduct of several millions of men in
our own day.
The peculiar laws of marriage and divorce, for
instance, as well as other branches of the jurispru-
dence of the Hebrews, the origin of which is
buried in the mists of antiquity, have come down
to our time in an unbroken chain of judicial decis-
ions and expositions. In the length of time
through which it extends and in the numerous
modifications which it has undergone, the system
of jurisprudence peculiar to the Jews stands abso-
lutely unique.
For the student of the Jewish law, the Bible is
the fountain-head of information, the most ancient
record to which he can turn. Although it is very
likely that the nomadic tribes of the Hebrews
were in the course of their wanderings affected by
the laws and customs of many different peoples,
yet the present state of our knowledge of the laws
and the institutions of those ancient peoples pre-
cludes an attempt to trace their influence on the
laws and customs of the Hebrews. Beginning
with the Bible and following the law downward
through the centuries, it is seen expanding and
growing and reaching out to cover the plexus of
events and conditions of human life, constantly
changing under the influence of time and clime
and circumstance. To the Rabbis, the Doctors of
the Law, it was a growing science, a living or-
12 IHE JEWISH LAW OF DIVORCE.
ganism. In their discussions in the Schools of the
Law, as well as in the decisions of the cases that
came before them, they did not exhibit a mere
blind adherence to ancient precept. Although
prompted by their religious convictions to be con-
servative, they cautiously, often unconsciously,
advanced. The growth of law is evolutionary.
The strict letter of the law soon becomes an ana-
chronism ; for every system of law, however rigid,
must yield to the subtle but irresistible influence
of the chano:inG: conditions of human life.
The Mosaic law, the foundation of the legal
system of the Hebrews, cannot be understood un-
less it is read by the light of its commentary, the
Talmud. The law of divorce, for example, cannot
be said to exist in the Biblical code at all, there being
but a few scattered and incidental references to it
found in the Book of Deuteronomy. These few
references grew into volumes of law in the Talmud
and Rabbinical writings ; the simple norms of a
race of agriculturists and herdsmen developed into
the complex system of law demanded by the highly
developed civilization of a nation.
The Bible itself cannot be properly considered
the fountain-head from which the law takes its
origin, for when the Lawgiver compiled this code,
he was even then summing up, in a concise form,
many of the customs and laws that had existed in
former times among the Hebrews.
Many of these ancient customs and laws may
be traced in the Biblical records, and others have
been preserved in nooks and corners of the Talmud.
INTRODUCTORY. 1 3
The traditions of the Patriarchs, the records of
the Judges and Kings, as well as the inspired
writings of the Prophets, contain many allusions to
ancient law. Biblical legislation has given body and
substance to much of the old traditional folk-law,
and the whole Bible is a storehouse of reference to
which the Rabbis turned for rules and principles to
govern their discussions and decisions. Although
the Rabbis were firm believers in the divine in-
spiration of the Bible, they were by no means
slaves to its letter; while believing it to be the
word of God, they applied sound reason and com-
mon sense to its interpretation, and recognized
these as the only legitimate means to resolve its
meaning in doubtful cases.
The decisions of the Rabbis are preserved in the
Mishnah, a code of law supplementary to the
Bible. The Mishnah is the Oral Law as distin-
guished from the Bible, the Written Law, and is
not properly to be considered as following the
Bible, but as contemporaneous with it. We know
when the code of the Mishnah was compiled, but
its origins are lost in antiquity. The Mishnah
itself bears testimony to its ancient traditional
origin. One of its divisions, the so-called "Say-
ings of the Fathers," (Pirq6 Aboth) opens with
the following statement of the chain of tradition :
"Moses received the Law at Sinai, and he trans-
mitted it to Joshua, and Joshua to the Elders, and
the Elders to the Prophets, and the Prophets handed
it down to the Men of the Great Synagogue,*'* and
^ Aboth i, I.
14 THE JEWISH LAW OF DIVORCE.
the last of the members of the Great Synagogue
was Simon the Just, who lived at the beginning of
the third centurv B. C. E. This law, thus trans-
mitted, was divided into two parts, the written and
the oral law, or, as we might call it, statutory and
case law. The written law was the Pentateuch
(Torah) and it was transmitted from generation to
generation without change or modification ; the
oral law, according to tradition, also began with
Moses, and was a contemporaneous commentary
on the Torah.
In the introduction to his monumental code of
the Jewish Law, (1180C. E.) Maimonides gives the
following account of the tradition of the law:
"All the laws given to Moses at Sinai were given
together with their commentary, for it is written.
And I will give thee tables of stone and a law
(Torah) and commandments (Migvoth).^ The
Torah is the written law and the Migvoth are the
commentaries ; and he commanded us to perform
the law according to its commentary, and this
commentary is called the Oral Law. Moses, our
teacher, himself wrote the entire Torah, and he
gave a copy thereof to each tribe, and one copy
was laid in the Ark, as a witness ; as it is written.
Take this Book of the Law and put it in the side of
the Ark of the Covenant of the Lord your God,
that it may be there as a witness against thee.^
And the commandments (Migvoth), which were
the commentary on the Law, he did not writedown,
^ Exodus xxiv, 12.
2 Deuteronomy xxxi, 26.
INTRODUCTORY. 1 5
but he commanded them unto the Elders and unto
Joshua and the rest of Israel ; as it is written,
Whatever thing I command you, observe to do it/
On this account it is called the Oral Law. Although
the oral law was not written down, Moses, our
teacher, taught the whole of it in his Court of
Justice to the Seventy Elders ; . . . and to Joshua,
who was the pupil of Moses, our teacher, he trans-
mitted the oral law and instructed him in it ; and
many Elders received it from Joshua and his Court
of Law, and Eli received it from the Elders and
from Phineas, and Samuel received it from Eli
and his Court of Law, and David received it from
Samuel and his Court of Law." And through him
the law was transmitted to the Prophets and ex-
pounded in their Courts of Law, and from them
Ezra received it ; and the judges of the Court of
Ezra were called the Men of the Great Synagogue,
and the last of them was Simon the Just.*
According to this account, which contains in it the
actual fact, though somewhat fancifully embellished
by tradition, the oral law was expounded in the court
of justice, presided over by Moses, and after him by
successive generations of judges, contemporaneous
with and following the Biblical period. From the
time of Simon the Just (about 300 B. C. E.) to the
time of Rabbi Yehudah the Nasi (about 200 C. E.),
the compiler of the Mishnah, there was an unbro-
ken sequence of Judges and Rabbis who expounded
and interpreted the law and the account of whose
^ Deuteronomy xii, 32.
* Introduction to Maimonides' Mishn^ Torah.
1 6 THE JEWISH LAW OF DIVORCE.
personality and judicial decisions rests upon no
mere vague tradition, but is well established and
authenticated. These were the TannaYm (Learners).
The Mishnah or oral law, as expounded by the
TannaYm, was generally accepted by the people,
but met with strong opposition from the ruling
classes, the princes and the priests, who formed the
backbone of the class known in history as the Sad-
ducees, so called to distinguish them from the
people, the Pharisees. The Pharisaic judges ex-
pounded the law rationally and sought to harmonize
it with the new conditions of life that arose from
time to time ; the Sadducees, on the other hand,
were strict conservatives, who would have none of
the interpretation of the law by the Rabbis, and
who held to the very letter of the Bible. Their
views were exceedingly narrow, and they departed
not from the ways of their fathers. They deemed
it a desecration, for example, to insert the name of
a heathen sovereign, in dating a Bill of Divorce,
because, forsooth, the Bill of Divorce contained
the name of Moses, whose memory was thereby
insulted. The Pharisees very pertinently pointed
out to them that the Bible itself places the name
of the heathen Pharaoh on the same page with that
of God.^ In another case the Sadducees argued,
in conformity with the letter of the Biblical law,
that a man is liable in damages for the injury done
by his slave. For they said, as we are liable for
the damage caused by our animals, respecting
which we have no religious duties, we must cer-
^ Mishnah Yadayim iv, 8.
INTRODUCTORY. 1 7
tainly be liable for the damage done by our slave,
for whose religious and moral welfare we are
obliged to care. But the Pharisees answered this
specious argument by showing that the rules which
may be applied to the case of the ox and the ass,
which are not possessed of reason, are not applica-
ble to the case of the slave, who is a rational being;
for if the master were held liable for the acts of his
slave, the latter might, in revenge for some wrong
done to him by the master, set fire to the growing
corn of another person, to compel his master to
pay for it.^
Thus, although not accepted by the Sadducees,
the oral law grew and developed, and found favor
among the people because of its reasonableness.
The terminus ad qiiem of the Mishnah is the
compilation or Code of Rabbi Yehudah the Nasi,
framed about 200 C. E. Rabbi Yehudah codified
the ancient Mosaic laws and their numerous judicial
interpretations, and these (the Mishnah) became in
their turn The LaWy the basis of a new commentary,
the Gemara.^
The Rabbinical authorities of the period of the
Gemara are known as the AmoraYm, their work
being characterized by a close study and discussion
of the Mishnah, and their arguments being given
at length in the Talmud. During the time of the
^ Mishnah Yadayim iv, 7.
' There were two Gemaras, the Gemara of Jerusalem, or,
more properly, of Palestine, and the Gemara of Babylon.
These contain the decisions and discussions that arose after
the compilation of the Mishnah. The Mishnah and Gemara
together are known as the Talmud.
1 8 THE JEWISH LAW OF DIVORCE.
AmoraYm, the centre of Jewish life and learning
was shifted from Palestine to Babylonia. The
schools and colleges of Palestine were gradually
deserted, and Babylonia became the home of the
law. In Sura, Nahardea, Pumbaditha and Mahuza
flourishing schools arose, and it was here especially
that that enormous body of precept and argument
known as the Babylonian Talmud was framed. This
contains not only the decisions of practical ques-
tions, of cases brought before the courts, but also
the theoretical discussions of legal questions in the
Schools of Law.^
The Talmud became the authoritative exposition
of the law for all Israel scattered in the four corners
of the world. The wide dispersion led to certain
differences in minor points of practice, the inter-
pretation of the law being affected by the individual
views of Rabbis and the local peculiarities and
characteristics of the people ; but in all important
matters the law was uniformly determined by the
Talmud.
In the year 1180 C. E., Maimonides completed his
Code of the Law. This contains the entire law from
the days of Moses ben Amram to the days of Moses
ben Maimon, and was intended, as Maimonides
states in his preface, to settle all differences and
to supersede all other Talmudical and Rabbinical
^ The Talmud is not merely a law book, but an " Encyclo-
pedia of Jewish life." The classical essay of Emanuel
Deutsch on " The Talmud," published among his " Literary
Remains " and recently republished by the Jewish Publica-
tion Society, at Philadelphia, will give the reader some ade-
quate idea of the meaning of that term.
INTRODUCTORY. IQ
works. The entire law is therein set forth without
discussion in simple and sententious phraseology.
It is carefully and scientifically divided and sub-
divided, so that any law may readily be found in it,
and is a monument to the greatness and learning of
its author.
The code of Maimonides, however, became the
subject of further discussion and comment, and the
volume of Rabbinical law grew apace. Several
codes were compiled in various parts of the world,
the most important and comprehensive being the
code of Jacob ben Asher, of Toledo (1340), called
Turim, which was based especially on the code of
Maimonides,^ and the code of Joseph Karo of
Adrianople, based upon the Turim and completed
by its author after thirty-two years of labor, in the
year 1554. This is the famous Shulhan Arukh
from which the laws and the religion of the Jews
received the form which they have preserved up to
the present time.'
The Jewish law is embodied in this series of
Codes, from the Bible to the Shulhan Arukh. They
all were attempts at systematizing the enormous
volume of law which was always growing and
changing under the decisions of the courts.
The development of the law cannot be checked,
for new conditions arise which the wisest lawgiver
cannot foresee, and these must have their law.
The laws of Moses were, in the course of centu-
^ Graetz's " History of the Jews," American Edition, Vol.
IV, pp. 88, etc.
* Graetz's " History of the Jews," Vol. IV, p. 612, etc.
20 THE JEWISH LAW OF DIVORCE.
ries, to a large extent superseded by the laws of
the Mishnah, these in turn were gradually modified
and changed throughout the period of the Gemara.
The impossibility of laying down immutable laws
was manifest to the Rabbis. " If the law had been
completely given without permission to modify it,"
said Rabbi Yannai (about 220 C. E.), a leading au-
thority in his time, " men could not exist, for it is
only in consequence of discussion of the learned
that the law is moulded to meet the conditions of
life. Moses asked God to teach him the Halakhah
(law, rule of action), and God told him to find it in
the voice of the majority." ^
The new laws and the modification of old laws
were necessary on account of the changing condi-
tions of iife. It was by virtue of their very neces-
sity that they were considered no less sacred than
the laws of the Bible. "The ordinances of the
Rabbis have an authority equal to the laws of the
Torah," ^ of which they were a necessary supple-
ment and continuation.
It will be seen from what has gone before, that
the study of the laws of the Bible without the use
of the Talmud is the study of the law without the
commentary ; it is an attempt to understand the
character of a nation by reading its statute book,
and disregarding the judicial interpretation and ap-
plication of its laws to the daily life of the people.
The results of such study are necessarily meagre.
The laws of the Bible do not, as so many sup-
^ Talmud Yerushalmi Sanhedrin sub Mishnah iv, 2 (22 a).
^ Talmud Babli Pessahim 30 b.
INTRODUCTORY. 21
pose, stand alone and unique in history, but they
have a long line of legal ancestors and descendants,
and are merely one link in the chain which ex-
tended from the ancient law of the patriarchal
family to the latest Rabbinical interpretation of a
section of the Shulhan Arukh.
CHAPTER II.
THE ANCIENT THEORY OF DIVORCE.
The Patriarch and his Family — His Absolute Power— The
Right of the Husband to Divorce his Wife at his Pleas-
ure — His Right pre-Mosaic — Restrictions Laid upon him
by the Deuteronomic Code — The Law of the False Ac-
cusation of Antenuptial Incontinence — The Law of the
Ravisher — The Protest of Malachi.
The origins of law are to be found in the consti-
tution of the patriarchal family, and the funda-
mental principle of its government was the abso-
lute authority of the oldest male ascendant, who
was the lawgiver and the judge, and whose rule
over his wives, children and slaves was supreme.^
This was the power of the husband and father by
virtue of his rank in the family, and this, in the
theory of the law, remained his right throughout
the subsequent history of the Jewish people, al-
though in the course of time it was greatly modified
and curtailed.
Among the early traditions of the Hebrews,
there are many instances illustrating the absolute
power and authority of the Patriarch.
^ Maine's "Ancient Law " passim. It is true that there was
a legal system and a social life anterior to the patriarchal)
and difEering from it ; but it has left no traces in the Jewish
divorce law.
(22)
THE ANCIENT THEORY OF DIVORCE. 23
Jephthah, Judge of Israel, sacrificed his daugh-
ter in fulfilment of a rash vow made by him when
he set out in the war against the Ammonites.^
Abraham likewise was prepared to sacrifice his son
Isaac as an offering to his God.^ King Saul gave
away his daughter, Mikhal, to another man, al-
though she had been previously married to David f
a right similar to that which the Roman father had
over his married daughter, who had not yet passed
out of his manus}
Among the traditions of the Patriarch Abraham
is found another illustration of this right, and one
more pertinent to our subject. Sarah, after the
birth of her son Isaac, was displeased with Hagar
and her son Ishmael, and she prevailed upon Abra-
ham to " cast out this bondwoman and her son."
Very much against his inclination, Abraham did
as Sarah requested, and the account of this casting
out or divorce of Hagar is given with naive sim-
plicity. " And Abraham arose early in the morn-
ing and took bread and a bottle of water and gave
it unto Hagar, putting it on her shoulder, and the
child, and sent her away."* Hagar, although she
had apparently attained the dignity of wifehood,®
was sent away without much formality.
* Judges xi, 30, 40.
* Genesis xxii, 1-12.
^ I Samuel xxv, 44 ; 2 Samuel iii, 14.
* Code of Justinian, Book v, Tit. 17, Const. 5. The Phil-
istines (Judges xiv, 20-xv, 2) and the Chinese (Letourneau,
"Evolution of Marriage and the Family," p. 184) anciently
had the same right.
* Genesis xxi, 9-14.
* Genesis icvi, 3.
24 THE JEWISH LAW OF DIVORCE.
The further back that we trace the history of
institutions, and especially of domestic relations,
the greater we find this power of the father and
husband ; not only affecting the legal status of the
wife, but controlling her actions, her property and
her person. At the very beginning, or, at least,
as far back as the history of this institution can be
traced, the husband's right to divorce was abso-
lutely untrammelled, and it was only with the
gradual breaking up of the patriarchal system,
and the substitution of an individualistic for a so-
cialistic state, that the woman acquired, at first
merely negative rights, such as protection against
her husband's acts, and, finally, positive rights,
under which she could proceed against him.
This ancient right of the husband, to divorce his
wife at his pleasure, is the central thought in the
entire system of Jewish divorce law ; and the Rab-
bis did not, nor could they, set it aside, although,
as will be shown hereafter, they gradually tempered
its severity by numerous restrictive measures.
Rabbinical ethics in this as in other cases out-
stripped the law, which lagged centuries behind,
and it was not until the eleventh century of the
common era that, by the decree of Rabbi Gershom,
of Mayence, the absolute right of the husband to
divorce his wife at will was fonnally abolished, al-
though it had already been practically non-existent
in Talmudic times.
The view that has been above set forth, that the
theory of the ancient Jewish common law con-
sidered divorce a private right of the husband,
THE ANCIENT THEORY OF DIVORCE. 2$
established by immemorial custom, is not gener-
ally accepted, and certain ethical dicta of the Old
and New Testament are cited against it. It is
commonly supposed th^t Moses permitted divorce
because of his people's hardness of heart ; and that
from the beginning it was not so ; that the pre-
Mosaic law forbade divorce and did not attempt to
put asunder what God hath joined together. In
support of this view the words of Genesis are
quoted. "And the man (Adam) said. This time
it is bone of my bones and flesh of my flesh ; this
shall be called Woman (Ishah) because out of Man
(Ish) was this one taken ; therefore doth a man
leave his father and his mother and cleave unto
his wife and they become one flesh." ^ But it is an
error to suppose that these high ethical concep-
tions of the marriage relation were carried out in
actual practice. Divorce was and is a necessary
evil, so considered in all civilized society. Theo-
retically, men have always agreed that the lofty
sentiments expressed both in the Old and the New
Testament constituted the ideals that should
govern a perfect marriage. But the practice of
men, as well in the dim antiquity of the pre-Mosaic
age as in the eighteen hundred years since the
establishment of Christianity, has recognized the
necessity of divorce, while regretting its non-
conformity with the ideals that should govern the
marriage relation. And, indeed, it will be observed
on closer inspection that the sayings both of
Hebrew and Christian moralists in condemnation
^ Genesis ii, 23-24.
2
26 THE JEWISH LAW OF DIVORCE.
of divorce are directed not against the exercise of
this right, but against its abuse. Jesus himself
felt obliged to recognize the validity of divorce,
although he confined it to cases of the wife's forni-
cation.^ The Jewish law recognized the validity
of divorce in all cases, and sought to prevent its
abuse by moral injunction and judicial regulation.
The Old Testament, written at a time when the
domestic law of the patriarchal family was in full
vigor, accepted divorce as a matter of fact, as an
institution that had existed since time immemorial.
The modern law of all civilized states has recog-
nized divorce as a necessity ; and it is a notorious
fact that those states which have unduly restricted
the liberty of divorce have on record a much
greater proportion of sexual crime and immorality
than those that have adopted liberal divorce laws.
The earliest restrictions upon the patriarchal
right of the husband to divorce his wife at will are
found in the Deuteronomic Code.^ The curtail-
^ Matthew xix, 9.
^ The original Deuteronomic Code has, since the publica-
tion of the researches of De Wette in 1805, been almost
universally accepted by Biblical scholars to be the same
code of law referred to as the " Book of the Covenant " in
the Second Book of Kings. It is there recorded that in the
eighteenth year of King Josiah (about 621 B. C. E.), a Book
of the Law was found in the Temple by the High Priest, who
gave it to Shaphan, the king's scribe. " And Shaphan, the
scribe, told the king, saying, A book hath Hilkiah, the Priest,
given me; and Shaphan read it before the king." The king
was powerfully affected on hearing the words of the Book,
and, having summoned his people to the Temple Mount, " he
read in their ears all the words of the Book of the Cove-
THE ANCIENT THEORY OF DIVORCE. 2/
ment of the husband's right naturally proceeded
by slow degrees, and the old records in Deuter-
onomy show but two cases in which it was re-
stricted, and in these cases only for the weightiest
moral reasons. Many analogies are to be found in
modern times, in cases where the statutory law
has gradually eaten out the heart of some old
common law doctrine. A familiar instance is the
law relating to married women's property rights.
It is only towards the end of the nineteenth century
that the liberalizing modem spirit has, by a series
of legislative acts, freed the married woman from
the yoke of the ancient common law.
Legislative interference with ancient customary
right was at all times objectionable to the mass
of the people. Moses called his people "stiff-
necked."^ This simply means that they were con-
servative and therefore ill-disposed to accept the
innovations suggested by him, even though they
had divine sanction. They preferred their ancient
idolatry to his monotheism; their old household
law to his new system, and no doubt their ancient
privilege of sending away their wives to his restric-
nant, which was found in the House of the Lord'' (2 Kings,
chaps. 22 and 23 passim). This Book of the Covenant
was the basis of the great religious and legal reforms of
Kii^ Josiah, which mark a turning point in the history of
Israel. — Graetz's " History of the Jews " (American Edition,
Philadelphia, 1891), Vol. I, pp. 292-296.
For discussion of this question and collation of authorities
see article " Pentateuch " in Encyclopaedia Britannica, Ninth
Edition ; and also Comill's " Einleitung in das Alte Testa-
ment," Edition 1892, p. 31, ^/ seq,
^ Deuteronomy ix, 6.
28 THE JEWISH LAW OF DIVORCE.
tive measures, though the latter were neither many
nor unreasonable.
Turning now to Deuteronomy we find in it but
two laws restricting the husband's right of di-
vorce.
In the first of these the husband is punished for
falsely accusing his wife of antenuptial inconti-
nence, by being deprived of his right to divorce
her and being compelled to keep her as his wife
forever. " If a man take a wife and go near unto
her and hate her, and he lay an accusation against
her and spread abroad an evil name upon her and
say, this woman I took and when I came near to
her I found no tokens of virginity in her ; then
shall the father of the damsel and her mother take
and bring forth the tokens of the damsel's vir-
ginity^ unto the elders of the city to the gate. And
the father of the damsel shall say unto the elders,
* My daughter I gave unto this man for a wife, but
he hates her, and behold he has laid an accusation,
saying, I have found no tokens of virginity in thy
daughter, and yet these are the tokens of my
daughter's virginity;' and they shall spread the
garment before the elders of the city. And the
elders of the city shall take that man and chastise
him and they shall amerce him in a hundred
(shekels) of silver and give them unto the father
of the damsel, because he has spread abroad an
evil name upon a virgin of Israel ; and she shall be
^ Among the country folk in Russia this custom still pre-
vails.— -Maxime Kovalevsky, " Modem Customs and Ancient
Laws of Russia " (London, 1891), p. 43, et seq.
THE ANCIENT THEORY OF DIVORCE. 29
his wife; he shall not be at liberty to put her away
all his days.'^^
Further on, in the same chapter, is found the
second law, by which a similar punishment is pre-
scribed for the ravisher : —
" If a man find a damsel that is a virgin, who is
not betrothed, and lay fast hold on her, and lie with
her, and they be found ; then shall the man who lay
with her, give unto the father of the damsel fifty
(shekels) of silver and she shall be his wife ; because
he has humbled her^ he shall not be at liberty to put
her away all his days'*^
Before the enactment of these laws the husband
was under no restriction whatever, and could di-
vorce his wife whenever it pleased him to do so.
By these laws his liberty received its first check.
The deprivation of the right to divorce was one of
the penalties inflicted upon him because of an in-
famous slander, or of rape. To compel a man to
keep and support a woman all her life, in a society
where all enjoyed the utmost freedom in sending
away their wives, must have been a very severe
punishment.
Divorce is incidentally mentioned in another law
in Deuteronomy. " If a man has taken a wife and
* Deuteronomy xxii, 13-19.
'Ibid. 28-29. In Exodus xxii, 16-17, a similar enactment
provides that the man who seduces a girl "shall endow her
to be his wife," but that if her father refuses to give her
unto him, " he shall pay money according to the dowry of
virgins." The subject of the dowry of brides (Kethubah) will
be taken up in another chapter. It is closely interwoven
with the divorce laws of the Talmud.
30 THE JEWISH LAW OF DIVORCE.
married her, and it come to pass that she finds no
favor in his eyes, because he has found something
unseemly in her, and he writes her a bill of divorce
and gives it into her hand and sends her out
of his house; and she departs from his house
and goes and becomes another man's (wife); and
the latter husband hates her and writes her a bill
of divorce and gives it into her hand and sends
her away out of his house, or if the latter husband
who took her as his wife should die : then shall
not her former husband who has sent her away,
be at liberty to take her again to be his wife, after
she has been defiled." ^
The purpose of this law was to prevent the re-
marriage of a divorced woman to her first husband
after she had been "defiled" by a second mar-
riage.
The spirit of Biblical ethics is opposed to all
forms of violence and injustice, and the dismissal
of the wife without cause was no doubt felt to be
wrong. But outraged morality did not find voice
in the Bible until Malachi opened his lips to de-
nounce what was the great wrong of his day.
Upon the return of the Israelites from captivity
in Babylon (537 B. C. E.), some of them divorced
their Jewish wives and united themselves in mar-
riage with the heathen women among whom they
had taken up their abode in Palestine. Against
this wanton dismissal of their wives the prophet
Malachi raised his voice in no uncertain tone. The
law was powerless to prevent this divorcing, but
^ Deuteronomy xxiv, 1-4.
THE ANCIENT THEORY OP DIVORCE. 3I
morality could not countenance it. " Because the
Eternal has been witness between thee and the
wife of thy youth against whom thou hast dealt
treacherously, yet she is thy companion and the
wife of thy covenant. . . . Let none deal treach-
erously against the wife of his youth. For I hate
him that puts away his wife, said the Eternal God
of Israel."^
The voice of Malachi re-echoed in many dicta of
the Talmudic moralists, who condemned the prac-
tice of hasty and groundless divorce which the
law allowed.
^ Malachi ii, 14-16.
CHAPTER III.
THE VIEWS OF THE TALMUDISTS AND OF JESUS.
The Discussion between the Schools of Hillel and Shammai
— Philo — Josephus — The Dicta of Jesus — Ethical Views
— Divorce by Mutual Consent — Divorce Sometimes
Recommended.
The review of this question thus far shows the
right to divorce to have been a private right of the
husband, the natural outgrowth of the patriarchal
system, and to be exercised by him at his pleasure,
except in the two cases in which the Deuteronomic
code has restricted it : — the case of the ravisher
and of the one who falsely accuses his wife of
antenuptial incontinence.* Although the theory
of the law remained the same throughout the pe-
riod of the Mishnah, it did not pass unchallenged,
and was, in practice, modified in various ways.
The question had evidently been the subject of
conflicting judicial interpretation during the first
century before the Christian era, for the schools
of Hillel and Shammai, the two great doctors of
the law who flourished at that time, held radically
different views on the subject.
The school of Shammai interpreted nearly all
the Biblical laws strictly and rigorously. They
^ Deuteronomy xxii, 13-19 ; 28-29.
(32)
THE VIEWS OF THE TALMUDISTS AND OF JESUS. 33
were, to use a term applied to certain interpreters
of the Constitution of the United States, Strict
Constructionists; they held that a man cannot
divorce his wife unless he has found her guilty of
sexual immorality.* This doctrine, so completely
at variance with the customary right of the hus-
band, was based upon a peculiar interpretation of
the words " something unseemly *' in the Deuter-
onomic law above quoted.* They held that these
words (Hebrew, Ervath Dabar; literally, "the
nakedness of the matter"), signified sexual im-
morality ; and that the old law recognized this as
the only legitimate cause for divorce.
The School of Hillel, on the other hand, were
generally more liberal in their interpretation of the
Biblical laws, and were the Broad Constructionists
of the Bible. They held that the husband need
not assign any reason whatever for his divorce, and
that he may, for instance, if he please, divorce his
wife for spoiling his food.' They also rested their
opinion on the authority of the Deuteronomic text,
and interpreted the words " something unseemly **
to mean anything offensive to the husband.
One hundred years later the question was still a
subject of debate, although the ancient theory
supported by the School of Hillel seems to have
been generally accepted. Rabbi Aqiba (died about
135 C. E.), whose opinion was of commanding
authority, held with the School of Hillel that a
^ Mishnah Gittin ix, 10 ; Talmud Yerushalmi Sotah I,i (16 b).
^ Deuteronomy xxiv, 1-4.
' Mishnah Gittin ix, 10.
^ 34 THE JEWISH LAW OF DIVORCE.
man need assign no reason for divorcing his wife,
and may, for example, divorce her if he find an-
other woman more beautiful than she, for it is
written, "if she find no favor in his eyes."^ The
same opinion was held by Philo of Alexandria
(10 B. C. E. to 60 C. E.), one of the most distin-
guished philosophers and jurists of his time. In his
treatise " Of Special Laws," in commenting on the
law of Deuteronomy, he says :^ " If a woman, hav-
ing been divorced from her husband, under any
pretence whatevery and having married another, has
again become a widow, whether her second hus-
band is alive or dead, still she must not return to
her former husband." In theory, Philo held, the
wife could be divorced by the husband at his will,
and his right to divorce her did not depend upon
the Deuteronomic Law, but was an ancient cus-
tomary right.
Flavius Josephus (38-95 C. E.), in his " Antiqui-
ties of the Jews," shares the opinion of the School
of Hillel, that a man may divorce his wife for any
reason whatever. "He who desires to be divorced
from his wife for any cause whatsoever, and many
such causes happen among men, let him in writing
give assurance that he no longer wishes to live with
her as his wife." '
^ Mishnah Gittin ix, 10.
* Philo Judaeus, " Of Special Laws Relating to Adultery,
etc.," Chap. 5. English Edition of Yonge, in Bohn's Library,
Vol. Ill, pp. 310, 311.
' Josephus' ** Antiquities of the Jews," Book iv, Chap. 8.
Josephus seems to have taken advantage of this privilege.
He, being a Kohen, was nevertheless married, at the com-
THE VIEWS OF THE TALMUDISTS AND OF JESUS. 35
An interesting case, tending to show the right
of the husband, is the case of Joseph and Mary.
Joseph suspected his wife of infidelity. "Then
Joseph, her husband, being a just man and not
willing to make her a public example, was minded
to put her away privily." ^ In this case, although
the reason for divorce was her supposed adultery,
the right of the husband to divorce her " privily " is
admitted. It would not have been necessary for
Joseph to have gone before some tribunal and to
have charged his wife with the crime, before being
allowed to divorce her. It was a case cognizable
only in the forum of his conscience.^ Jesus him-
self, though generally, and especially in his ethical
teachings, a follower of Hillel, herein followed the
School of Shammai. The discussion between the
respective champions of the two views having been
carried on for a long period before the time of
Jesus, it is very likely that he was entirely familiar
with it. The account in Matthew* of his interview
with the Pharisees reflects this entire Rabbinical
mand of Vespasian, to a Jewish captive, which was against
the law (Josephus' " Antiquities of the Jews," Book iii, Chap.
id). At an early opportunity he divorced her, and having
accompanied the Imperator Vespasian to Alexandria, he
married again. After a few years he divorced his second
wife, " being displeased at her conduct," and married a third
wife (Josephus' ** Life," Chap. 75).
^ Matthew i, 19.
* The reference in the text, indicating that he might have
made her a public example, alludes to the law of the woman
suspected of adultery, set forth in the Book of Numbers v,
1 1 -3 1, infra, p. 94.
* Matthew xix, 3-9.
36 THE JEWISH LAW OF DIVORCE.
discussion. " The Pharisees also came unto him,
tempting him and saying unto him, Is it lawful
for a man to put away his wife for every cause ?
And he answered and said unto them. Have ye
not read that he which made them at the beginning
made them male and female, and said. For this
cause shall a man leave father and mother and
shall cleave to his wife, and they twain shall be one
flesh ? Wherefore they are no more twain, but one
flesh. What, therefore, God hath joined together,
let not man put asunder. They say unto him. Why
did Moses then command to give a writing of di-
vorcement and to put her away ? He saith unto
them, Moses, because of the hardness of your
hearts, suffered you to put away your wives, but
from the beginning it was not so. And I say unto
you, whosoever shall put away his wife, except it
be for fornication, and shall marry another, com-
mitteth adultery ; and whoso marrieth her which is
put away, doth commit adultery.'*
The parallel passages in which the opinion of
Jesus is quoted, vary somewhat in phraseology,
but practically they are alike.^ In the report of
his opinion by Luke, Jesus says, " Whosoever put-
teth away his wife and marrieth another, committeth
adultery." ^ Here no reason whatever, not even the
adultery of the wife, could entitle the husband to
divorce her. And this seems to have been the
opinion of the zealous Paul, "And unto the married
I command, yet not I, but the Lord, Let not the
^ Matthew v, 31-32 ; Mark x, 2-12 ; Luke xvi, 18.
* Luke xvi, 18.
THE VIEWS OF THE TALMUDISTS AND OF JESUS. 37
wife depart from her husband. But and if she
depart, let her remain unmarried, or be reconciled
to her husband. And let not the husband put
away his wife.'* ^ Not even the unbelieving wife
is to be sent away by her husband. But these
lofty moral sentiments cannot be applied in their
uncompromising ideality to the affairs of men, and
the whole Christian world has, no doubt with
regret, been obliged to sanction divorce. For
until mankind has reached that state of moral per-
fection, when no cause will be given by either
party to prompt the other to institute proceedings
for divorce, it will always be more conducive to
virtue and good morals to divorce ill-mated couples
than to compel them against their will to remain
bound by the ties of matrimony.^
Hillel and Aqiba, whose opinions are above
quoted, were men who led an ideal life as public
and private men, yet their memory has been slan-
dered, because of their dicta on the divorce ques-
tion. Their decisions in favor of the unrestricted
right of the husband to divorce were opinions ex
cathedra by judges upon a question of law. And
it is a familiar fact, in modern as it was in ancient
law, that it is the duty of the judges to state the
law as they find it, regardless of their personal
views or opinions.
^ I Corinthians vii, lo-n ; Romans vii, 2.
* Montaigne said, " We have thought to make our marriage
tie stronger by taking away all means of dissolving it ; but
the more we have tightened the constraint, so much the more
have we relaxed and detracted from the bond of will and
afEection."
38 THE JEWISH LAW OF DIVORCE.
Rabbi Elazar, who as a judge held the same
opinions, said, as a moralist, "Over him who
divorces the wife of his youth, even the Altar of
God sheds tears." ^
Rabbi Yohanan (199-279 C. E.) said,* "He that
putteth her (his wife) away is hated of God."
Rabbi Meir (about 150 C. E.) said,' "He who
marries her that is divorced from her husband
because of her evil conduct, is worthy of death ;
for he has taken a wicked woman into his house."
Rabha, a distinguished Babylonian Amora (299-
352 C. K), on being asked whether a man may
divorce his wife if he finds her guilty neither of
unchastity nor of any other objectionable conduct,
answered, " Where a man has violated a virgin the
Torah forbids him to divorce her ; and if he does so
he will be compelled to take her back again ; but
in the case about which you inquire, whatever the
husband has done, is done." If he divorces her
without cause he cannot be compelled to take her
back again.* "But," continues Rabha in answer
to a further question, " if his wife is living under
his roof and he is harboring designs against her to
divorce her (though he may exercise his right
under the law), read, of him, the words of Scrip-
ture, * Devise not evil against thy neighbor, seeing
he dwelleth securely by thee.' " ^
The moral sense which condemned the abuse of
^ Talmud Babli Gittin 90 b. Alluding to Malachi ii, 13-14.
2 Ibid.
8 Ibid.
* Talmud Babli Gittin 90 a.
* Proverbs iii, 29.
THE VIEWS OF THE TALMUDISTS AND OF JESUS. 39
the right to divorce found its expression in these
dicta of Jesus, Elazar, Yohanan, Metr and Rabha.
What such teachers said was soon in the mouth of
all men, and naturally reacted on the old law.
The old patriarchal theory was gradually modi-
fied ; exceptions to the general unrestricted right
of the husband gradually grew more numerous,
and ere long we find the old rule practicaHy abol-
ished, by reason of the many exceptions to it
which were recognized by the law.
But although the Rabbis did, in time, set a bar
to the unlimited right of the husband, they did not
seek to prevent divorce for cause or by mutual
consent of the parties. The Hebrews are often
somewhat maliciously called "a practical people."
In no better manner did they show their practical
common sense than in their divorce regulations.
They did not foolishly sacrifice the realities of life
to the ideal by which they were guided. They had
a wholesome regard for human nature and were
too practical to have false theories about it. The
sacramental character that the Christian Church
sought to give to marriage, and the concomitant
theory of its indissolubility, never struck root
among the Jews, because these theories were not
in harmony with the demands of human nature
and the realities of life.
The Rabbinical theory was sound and defensible.
Indiscriminate exercise of the right to divorce was
condemned, and moral grounds had to be given
before the Rabbis gave their sanction to the pro-
ceeding. If the parties agreed to be divorced, the
40 THE JEWISH LAW OF DIVORCE.
Rabbis could not oppose any objection, because
the mutual consent of the parties was the highest
moral ground for divorce. The modern legal bar-
barity which yokes together in matrimony persons
who mutually agree to be separated, was not coun-
tenanced by the Jewish law.^
^ The most distinguished of modern sociologists, Herbert
Spencer, prophesies that "A time will come when union by
affection will be considered the most important, and union in
the name of the law the least important, and men will hold
in reprobation those conjugal unions in which union by
affection is dissolved." — Herbert Spencer, " The Principles
of Sociology," Vol. II, p. 410.
CHAPTER IV.
laws of the mishnah restricting the hus-
band's right to divorce.
Modifying the Severity of the Biblical Laws of the false Ac-
cusation of Antenuptial Incontinence and of the Rav-
isher — The Insane Wife —The Captive — The Minor—
The Formalities of Divorce Procedure — The Law of
the Wife's Dowry — Denial of the Husband's Right to
"Annul the Bill of Divorce" — When the Husband is
non compos tneniis — Deaf- Mute — The Culmination of
these Restrictions in the Decree of Rabbi Gershom of
Mayence.
The right of the husband to divorce was, as we
have seen, formally abrogated by the Mosaic law
in two cases. First, where the husband had falsely
charged his wife with antenuptial incontinence,
and, second, in the case of the Ravisher.^ The law
relating to the false charge of antenuptial inconti-
nence is silent as to the right of the wife to leave
her husband, or to refuse to live with him. It sim-
ply states that if the charge is false, the husband
shall be chastised by the elders of the city and
shall pay a fine of one hundred shekels of silver to
the father of the damsel and she shall be his wife,
"he shall not be at liberty to put her away all his
days." This apparently cofnpels the woman tp r^-
^ Deuteronomy xxii, 13-19, 28-29.
3 (4«)
42 THE JEWISH LAW OF DIVORCE.
main forever with the man who, from his conduct,
would probably be, of all men in the world, most
odious to her. There is no positive Mishnah estab-
lishing the wife's right to leave her husband, after
the false charge had been made by him, and it is
only by inference that this right appears. But
Philo has filled the gap by an incidental reference,
which shows that the law permitted the woman to
exercise her discretion and to determine whether
she would continue to be his wife. He says that,
when the charge of antenuptial incontinence is
false, the Judges shall pronounce "what will be
the most unpleasant of all things, a confirmation
of the marriage, if the wife will still endure to
cohabit with him ; for the law permits her from
her own choice to remain with him or to abandon
him, and will not allow the husband any option
either way, on account of the false accusation
which he has brought." ^
Another question of very great importance is
neglected by the law of Deuteronomy. What shall
the ravisher do, who has been compelled to marry
his victim and is by law debarred from ever divorc-
ing her, if he discovers afterwards that she is guilty
of adultery ? How is the rigor of this law to be
reconciled with that other Biblical law, which pro-
vides that a woman guilty of adultery cannot re-
main with her husband? Josephus supplies the
information required on this point, showing how
the law had been modified by Rabbinical decisions.
1 Philo, "Of Special Laws Relating to Adultery, etc.," Chap.
14, Yonge's Edition, Vol. Ill, pp. 323-4.
THE HUSBAND S RIGHT TO DIVORCE. 43
He says, " if the damsel (charged with antenuptial
incontinence) is declared innocent, let her live with
her husband that accused her, and let him not have
the power thereafter to put her away, unless she
give him so grave cause and such as can in no way
be contradicted." ^ Here then, the rigor of the law,
that " he shall not have the power to put her away
all his days," is modified, to prevent the greater
immorality of compelling a man to live with an
adulteress, when she is well known to be such. And
the Mishnah, to which Josephus no doubt alludes,
says very distinctly, that if after the marriage she
commits adultery, she must be divorced ; for it is
written in the law " unto him shall she be a wife^'
that is, one who is fit and worthy to be so called.
The adulteress therefore could not have been in-
tended thereby.* A distinction is made between
the case of the seducer and the ravisher, the punish-
ment of the latter being greater. In addition to
the greater pecuniary liability of the ravisher, he,
as was shown above, was punished by having his
marriage with the woman whom he had wronged,
made indissoluble. The Biblical law provides that
the seducer may, if the father of the damsel refuses
to give her to him as a wife, compound the offense
by paying a fine f and the Mishnah properly con-
cludes that when the crime was committed with the
consent of the woman, the punishment should not
be severe ; hence, although the seducer, in compli-
* Josephus' " Antiquities," Book iv, Chap. 8.
' Mishnah Kethuboth iii, 4-5.
' Exodus xxii, 16-17.
44 THE JEWISH LAW OF DIVORCE.
ance with the letter of the law, had to marry the
woman whom he had seduced, he could, if he chose,
divorce her.^
The Mishnah provides for another exception,
which commends itself to reason. If the woman
for any reason whatsoever has religious disquali-
fications which cannot be removed, the ravisher
need not marry her, although he is obliged to pay
to her father not only the fifty shekels provided by
the Biblical law, but also punitive damages, to be
estimated according to her rank, station and condi-
tion in life, for the injury done to her and for her
shame and suffering. Philo seems to have been of
the opinion that the ravisher, as well as the seducer,
could in any case refuse to marry the damsel, and
was obliged merely to pay a fine and provide her
with a dowry for another husband ; but that, if he
consent to take her as his wife, he must marry her
at once, without delay, in order that the mishap
may be comforted by a firm marriage, which noth-
ing but death shall disturb.^ But this was not the
law. The ravisher cannot refuse to marry her if
she is willing. The Mishnah says : " The ravisher
must drink out of his polluted vessel," and even if
the woman whom he has ravished is afflicted with
personal blemishes, he must marry her and keep
her as a wife forever.^
While, on the one hand, the Mishnah has
^ Mishnah Kethuboth iii, 4.
2 Philo, " Of Special Laws Relating to Adultery, etc.,"
Chap. II, Yonge's Edition, Vol. Ill, pp. 320-321.
^ Mis'mah Kethuboth iii, 5.
THE husband's RIGHT TO DIVORCE. 45
somewhat modified the unyielding severity of the
Mosaic law, in permitting the slanderer or the rav-
isher to divorce the woman whom he has been
obliged to marry, it has also, on the other hand,
extended the number of cases in which there is an
absolute prohibition of divorce.
The Mosaic law did not, except in the two
cases above mentioned, prevent the husband from
divorcing his wife under any and all circumstances ;
but the oral law furnished three exceptions to this
general privilege. It provided, in the first place,
that where the wife had become insane, she could
not be divorced. In this case the woman being
unable to take care of herself, might become the
prey of evil men, and hence the Doctors of the
Mishnah deemed it proper to forbid the divorce.^
But as this was in derogation of the ancient right
of the husband, the Rabbis sought to find Biblical
sanction for it. It was not enough for them to
say, we deem it against public policy or against
good morals ; they had to find some Biblical
authority for their innovation. Rabbi Yannai
(about 220 C. E.) explained it thus : The Torah
says " he shall give it (the Bill of Divorce) into
her hands," /. ^., she must be a rational creature,
capable of receiving it. In the college of Rabbi
Ishmael another reason was given. The Torah
says, " and he sends her from his house," i, ^., it
refers to one who, being sent away, will not return ;
but a demented person has no sense of shame
and will probably go back to her husband's
^ Mishnah Yebamoth xiv, i.
46 THE JEWISH LAW OF DIVORCE.
house. The Bible does not allow such a one to be
divorced. ^
But it seems that although some of the Rabbis
forbade the divorce of an insane wife, others per-
mitted it,* on the principle that the ancient legal
right of the husband could not be abrogated.
In the next place it was decided that the wife
could not be divorced while she was in captivity.
If she had been taken captive in war, or by a band
of Bedouins, it was the duty of the husband to
ransom her, and he could not escape this obligation
by sending her a Bill of Divorce, even though he
also sent her the amount of her dowry and bade
her use it to ransom herself.*
Finally, it was decided that the minor wife, who
is so young as not to be able to understand or to
take care of her Get or Bill of Divorce, could not
be divorced.* It is not unusual in Oriental coun-
tries to give girls in marriage at a very tender age,
and the above provision was dictated by principles
of the soundest common sense.
The theoretical right of the husband to divorce
at his pleasure was further modified by the formali-
ties attending the preparation and delivery of the
Bill of Divorce. The numerous rules and regula-
tions incident to the procedure in divorce tom-
^ Talmud Babli Yebamoth 113 b.
* Maimonides^ Treatise Gerushin x, 23.
* Mishnah Kethuboth iv, 9. But if after having been ran-
somed she is again made captive, he is no longer obliged to
ransom her. Talmud Babli Kethuboth 52 a. Maimonides*
Treatise Ishuth xiv, 19.
* Ibid.
THE husband's RIGHT TO DIVORCE. 47
pelled the husband to seek the help of one learned
in the law to assist him in divorcing his wife, and
thus the act became a quasi-judicial one. Although
the duties of the person thus consulted by the hus-
band were ministerial, he was obliged to be well
versed in the law,^ and was expected to use every
effort to reconcile the parties, unless sufficient
reason appeared for the divorce.^
The law compelling payment of the wife's dowry
when she was divorced also acted as a check upon
the husband's abuse of his right. It was an old
Biblical institution and was probably pro-Mosaic;'
and by its means some of the difficulties that have
been suggested in reference to two other Biblical
laws can be explained. It has been asked,* if the
law allowed divorce at the pleasure of the husband,
what is the sense of the law of the accusation of
antenuptial incontinence ? * The husband would
certainly not go through the unpleasant formalities
of a public accusation of his wife, if he could,
without question, rid himself of her by a Bill of
Divorce. The answer to this is found in the law
of the wife's dowry. By a contract, expressed or
implied, the husband secured to his wife, in the
^ Talmud Babli Qiddushin 6 a.
* For procedure in divorce see Chapters xii-xiv.
' Infra, p. iii. The Egyptians had a similar law by which
the dowry of the wife was inalienable, and was payable to
her on being divorced. Letourneau, " Evolution of Marriage
and the Family," p. 177.
* Commentary of Nahmani to Deuteronomy xxiv, 1-4, and
xxii, 13-19.
* Deuteronomy xxii, 13-19.
48 THE JEWISH LAW OF DIVORCE.
event of his death or divorce, a certain sum of
money, and also, by later law, the return to her of
the property which she brought to him upon her
marriage. If the wife was found guilty of ante-
nuptial incontinence, she was put to death ; but if
the husband divorced her without public inquiry,
she was entitled to her dowry and to the return of
the property which she brought to her husband at
her marriage. It was, therefore, a pecuniary ad-
vantage to the husband to get rid of his wife by a
public accusation. As this, however, was liable to
be abused by an unscrupulous man, who would not
hesitate to prefer a false charge against the wife
of whom he desired to be rid, without satisfying
her just property claims, it was provided by law
that the husband preferring such a false charge
was obliged to keep his wife and could not divorce
her " all her days." ^
Another limitation upon the husband's ancient
rights was the decree of Rabban Gamaliel, which
deprived him of the power of " annulling the Bill
of Divorce." According to ancient law, the hus-
band, after he had sent off the messenger with
the Bill of Divorce for his wife, could summon wit-
nesses and in their presence declare his Bill of
Divorce or Get null and void ; and this, although
neither the messenger nor the wife was present.'
The dangerous consequences of this power were
obvious. The woman receiving the Get from the
messenger, and considering herself divorced, might
^ Deuteronomy xxii, 19.
' Mishnah Gittin iv, 2.
THE husband's RIGHT TO DIVORCE. 49
be married to another man, only to discover after-
wards that her former husband had annulled his
Get, whereby her second marriage became void, she
became an adulteress and her issue by her second
husband illegitimate. This power of the husband
was a survival of the immemorial right of the patri-
arch to do as he pleased with his own, bound by no
other law than the dictates of his conscience; and
it continued in force until Rabban Gamaliel the
Elder, who was Chief of the Sanhedrin during the
reign of Agrippa (about 40 C.E.), decided that the
husband no longer had the right to annul the Get
in the absence of the messenger or of the wife.^
The authority of Rabban Gamaliel was frequently
questioned, until, about one hundred years later,
his great-grandson Rabban Simon (III) ben Gama-
liel (Nasi from about 140-164 C.E.) decided that
the decree of Rabban Gamaliel must be accepted
as law, and that it was beyond the power of later
Rabbis to set aside the decrees of so eminent a
tribunal as that over which Rabban Gamaliel pre-
sided. He maintained that marriage was contracted
subject to all Biblical and Rabbinical laws in force
at the time of its solemnization, and as the Court
of Rabban Gamaliel had rendered an opinion on
this question, every man was presumed to know
that if he married and divorced his wife, he had no
power to "annul his Get." This having been the
law at the time of his marriage, he was bound to
know and obey it.^
^ Mishnah Gittin iv, 2.
^ Talmud Babli Gittin 33 a.
so THE JEWISH LAW OF DIVORCE.
The restrictions thus imposed by the law upon
the husband's theoretical right to divorce his wife
whenever he pleased, were further increased by
other Rabbinical decisions.
When Husband is insane. — The insane man is in-
capable of exercising legal rights or performing legal
acts, and could therefore not give a Bill of Divorce
to his wife, or order it to be given for him.^ If he
was only temporarily deranged, in a delirium, or
stupidly intoxicated with strong drink so as to be
deprived of his ordinary faculties, he was considered
incapacitated for the time being from performing
any legal act.'
The case of one who is stricken with cardiacos*
is analogous in law to the case of the insane person.
It seems that this disease disqualified a person from
the performance of any legal act, so that if one
while in the throes of this disease ordered a Get to
be written for his wife, it was considered " as though
he had said nothing.'* He was not deemed compe-
tent to give expression to a rational purpose.*
Deaf-mute. — One who was deaf and dumb was
not deemed to be quite as unsound as an idiot or an
^ Mishnah Yebamoth xiv, i.
* Talmud Babli Gittin 67 b. Maimonides' Treatise Gerushin
ii, 14.
* The exact nature of this disease is not known. From the
term used in the Mishnah to describe it, it seems to have been
some cardiac affection, and was perhaps accompanied by
some very abnormal physical condition which led the Rabbis
to believe that the person so stricken was deprived of his
intellectual faculties.
* Mishnah Gittin vii, i.
THE husband's RIGHT TO DIVORCE. 5 1
insane person, and was therefore not entirely in-
capacitated from the performance of certain legal
acts. But, having been deprived of two of the most
important means of understanding others and giving
expression to his own thoughts, he was under cer-
tain legal disabilities. He could not be a witness in
legal proceedings* and he was classed with infants,
being, in the eye of the law, only able to exercise
legal rights over certain trifling matters in and about
his household,^ but not considered as endowed with
ordinary legal responsibilities.*
If a deaf and dumb person desired to be married,
he could perform the ceremony of espousing his wife
by signs. This marriage ceremony was not strictly
valid according to the Biblical law, but it was sanc-
tioned, owing to the necessities of the case, by
Rabbinical law. It followed, therefore, that having
espoused his wife by signs, he could divorce her by
signs, and might express his intention to the scribe
and the witnesses by gesture and pantomime.* But
if the husband who had been entirely sound and
in possession of all his senses at his marriage,
afterwards became deaf-mute, the law did not
allow him to divorce his wife ; the marriage hav-
ing been entered into under such circumstances
and under such forms, as to be binding, could only
be dissolved " according to the Law of Moses and
Israel." *
1 Talmud Babli Gittin 71 a.
2 Mishnah Gitin v, 7.
^ Mishnah Baba Qama viii, 5.
* Mishnah Yebamoth xiv, i.
^ Mishnah Yebamoth, Ibid.
52 THE JEWISH LAW OF DIVORCE.
The Decree of Rabbi Gershom. — These nu-
merous qualifications of the theoretical right of
the husband to give the Bill of Divorce to his
wife whenever it pleased him to do so, resulted in
gradually eliminating from the popular mind the
notion that such a right existed. Men had become
so accustomed to go to the Rabbi, who was both
spiritual leader and judge, when they wished to di-
vorce their wives, that they eventually forgot that,
by ancient common law, they were entitled to give
the Bill of Divorce without the Rabbi's sanction.
In the beginning of the eleventh century of the
Common Era, the theoretical right of the husband,
which for centuries theretofore had ceased to exist
in practice, was formally declared to be at an end.
This was done by a decree issued by Rabbi Gershom
ben Yehudah (about 1025 C.E.), who presided over
a Sanhedrin convened at Mayence.* The sub-
stance of this decree is thus stated : —
" To assimilate the right of the woman to the
right of the man, it is ordained that even as the man
does not put away his wife except of his own free
will, so shall the woman not be put away except by
her own consent."'* Always excepting the cases
where good cause has been shown by either hus-
band or wife why the marriage should be dissolved
against the will of the other.*
This decree was accepted as law by the Jews of
* Commentary of Rabbi Moses Isserles to Eben Haezer
cxix, 6.
^ Responsa Asheri 42, i.
^ Commentary of Eabbi Moses Isserles to Eben Haezer
cxix, 6.
THE husband's RIGHT TO DIVORCE. S3
the countries represented in the Sanhedrin, and
afterwards by all who acknowledged the authority
of the Shulhan Arukh ;^ but Maimonides, who com-
piled his Code about one hundred and fifty years
after this decree (1180 C.E.), ignores it entirely and
seems to have been unaware of its existence.
This decree of Rabbi Gershom, and his other de-
cree abolishing polygamy, were remarkable because
of their revolutionary character. It was a principle
of interpretation that the things which are expressly
permitted in the Bible, cannot be prohibited by
Rabbinical authority.^ The authority of the San-
hedrin of Rabbi Gershom was self-constituted, and
its decrees in defiance of immemorial custom, and
Biblical law, are illustrative of the intellectual inde-
pendence of the Rabbis, more especially when it is
remembered that they were promulgated amidst the
surrounding darkness of the Middle Ages.
1 In the case of Moss vs. Smith, i Manning & Granger 228,
decided in the Court of Common Pleas at London in 1840,
this question was mooted.
^ Ture Zahab sub Hoshen Mishpat ii.
CHAPTER V.
THE wife's right TO SUE FOR DIVORCE.
The Germ of the Wife's Right Found in the Bible— Jurisdic-
tion of the Courts to Compel the Husband to Grant the
Bill of Divorce — The Question of Duress— The Acts of
non-Jewish Courts— The Wife could Sue for Divorce,
but could not Give a Bill of Divorce to her Husband-
Influence of Roman Law during the last Days of the
Jewish State.
That the Biblical law has neglected to make the
rights as well as the duties of husband and wife
entirely reciprocal, and to provide for the wife's
right to sue for divorce, has been a source of fre-
quent comment. The reason for the silence of the
law on this question is, however, obvious. In a
state of society where the husband and father was
practically a sovereign in dealing with his own, the
case of a wife suing for divorce could not have
occurred to the lawgivers, because there was no
forum in which she could obtain redress. The wife
was a part of the husband's familia, and looked to
her lord and master for her law.* He, as the rep-
resentative of the household, very likely appeared
in the council of the Elders and Heads of the
Houses to discuss and decide questions affecting
the common weal, but hardly to discuss the internal
affairs of his household.
^ Genesis iii, i6.
(54)
THE wife's right TO SUE FOR DIVORCE. 55
The germ of the wife's right to sue for divorce
does, however, exist in the Pentateuch. " And if
a man sell his daughter to be a maid-servant, she
shall not go out as the men-servants do. If she
please not her master who betrothed her to himself,
then shall he let her be redeemed ; to sell her unto
another, he shall have no power, seeing he hath
dealt deceitfully with her. And if he have be-
trothed her unto his son, he shall deal with her
after the manner of daughters. If he take him
another wife, her food, her raiment and her duty of
marriage shall he not diminish. And if he do not
these three unto her, then shall she go out free
without money." ^ Under this law a father had the
right to sell his daughter as a bondwoman, whereby
she left his household and entered that of her mas-
ter. As soon as she was elevated from the posi-
tion of a bondwoman, and betrothed to her master's
son, she was entitled to certain rights. She could
not be sold again, and could, as a wife, demand
food, raiment, and conjugal rights, of her husband.
If he refused these, she could " go out free." ^ But
as it is not in the nature of things that a bond-
* Exodus xxi, 7-1 1.
^ Likewise, in the case of the woman taken captive in war,
who has been made the wife of her captor, the law says that,
after she has been married^ " if thou have no delight in her,
then thou shalt let her go whither she will, but thou shalt not
sell her at all for money, thou shalt not make merchandise of
her, because thou hast humbled her " (Deuteronomy xxi, 14).
In this case, the captive, who by the laws of war became a
bondwoman and who had been elevated to the dignity of
wifehood, could not^ after the marriage had been consum-
mated^ be sold by her husband.
S6 THE JEWISH LAW OF DIVORCE.
woman should go out free from the power of her
master, whenever she believed herself entitled to
do so, the inference seems to be that she could
appeal to some lawful authority, perhaps the Elders
of the City, to protect her rights, or to secure her
freedom on proving that her rights had been with-
held.
The Mekhilta^ hints at such a state of things.
"If the husband does not provide for his wife
(who had been his bondwoman) in accordance with
the law, then shall she go out free without money,
but not without a Bill of Divorced As the giving
of a Bill of Divorce, for the husband's neglect of
his "legal duties, could only be enforced by some
lawful authority, it follows that the woman must
have been entitled to appeal to such authority to
maintain her rights against her husband.
This tradition in the Mekhilta also indicated
that the granting of the Bill of Divorce was a very
old custom in Israel, and necessary to dissolve a
lawful marriage.
Here then is probably a case, under the patri-
archal system, of a woman suing at law for her
freedom from the power of her master. It is fair
to presume that if the bondwoman had this right,
the freeborn wife had an equal, if not a better right.
This is the germ of the modern theory that the
relation existing between the married couple is
founded on contract. By virtue of the position
that the woman assumed in the husband's house-
hold, she obtained certain rights against him. He
^ Mishpatim, Section 3.
THE wife's right TO SUE FOR DIVORCE. 57
having taken her into his manus, the law imposed
upon him certain obligations towards her. The
next step probably was, the recognition of the wife
as plaintiff before the Elders of the City or the
Heads of the Houses, in case the husband failed in
his duty towards her, and the infliction of some
penalty for his transgression. This penalty very
likely consisted of a fine or a levy on some of his
property for her sustenance. Eventually (at first
no doubt in flagrant cases) the judges compelled
the husband to release her entirely by giving her
a bill of divorce.
The right to compel the husband to give a bill of
divorce to his wife, may well have appeared doubt-
ful to these ancient judges who were ingrained with
the theory of the absolute right of the head of the
house to deal as he pleased with his own ; and the
judge or the Council of Elders who first exercised
this right were no doubt looked upon as usurpers
of authority. But the right existed at a very early
period, and the courts had the power to compel the
husband's consent to a divorce by the infliction of
corporal punishment, usually thirty-nine stripes.^
The objection to the Bill of Divorce thus given
under order of the court was that it was given
under duress. The law required that the husband
should act as a free agent,^ and if he granted the
divorce to his wife while under fear of punishment
for disobeying the order of the court, he could not
be said to be acting of his own free will.' The
* Mishnah Erakhin v, 6.
^ Mishnah Yebamoth xiv, i.
' Mishnah Gittin ix, 8.
4
58 THE JEWISH LAW OF DIVORCE.
question thus raised went to the very heart of the
right of the courts to interpret the written law.
As long as the woman had no right to be heard
against her husband, such a question could not
arise; but once having admitted the right of a
woman to appear as plaintiff, the courts were bound
to assume the authority to enforce their decrees
against the husband as defendant.^ Here they
were met with the objection above stated, that no
Get was valid unless it was the free act of the
husband, and the right of the court, therefore, to
enforce its own decrees was directly in issue.
Being unwilling to usurp authority, and feeling at
the same time that the necessity of the case justi-
fied their position, they evaded the issue by a very
neat bit of reasoning. They said, in substance, " We
do not compel the husband to give this Get against
his will. We assume that every man intends to
act according to law. The law says that this
woman shall receive a Get, and it therefore becomes
the duty of the husband to give it to her.^ His
refusal to do so, is the result of an evil disposition
which prompts him to act contrary to law. It is
this evil disposition which is forcing him to do that
which is wrong. It is therefore both our right and
our duty to help him to get rid of his evil disposi-
tion, so that he may do that which the law directs.
We accomplish this purpose by punishing him for
disobeying our decree and until he acts in accord-
ance with it.' When he has been sufficiently pun-
^ Mishnah Erakhin v, 6.
« Talmud Babli Baba Bathra 48 a.
' Talmud Babli Yebamoth 106 a.
THE WIPES RIGHT TO SUE FOR DIVORCE. 59
ished, his evil disposition will leave him and he will
be able, as a free agent, to give the divorce accord-
ing to law." ^
This argument justified the Jewish courts in en-
forcing their decrees in divorce against the hus-
band ; but the Rabbis refused to apply it for the
purpose of validating Bills of Divorce which were
prepared in the courts of the Heathen (Romans).'
In all cases, where the non-Jewish Courts con-
ducted the divorce proceedings of a Jewish couple,
the Rabbis declared their act to be null and void. *
Although the Jewish authorities readily submitted
all questions affecting civil rights and contracts
to the courts of the Gentiles, they always refused
to recognize their authority in religious matters.
Divorce was a quasi-religious act among the Jews ;
the woman was said to be married and divorced
"according to the law of Moses and Israel." The
Bill of Divorce was peculiar to the Jews and other
nations did not make use of it in divorce proceed-
ings ;* for these reasons the interference of non-
Jewish courts in matters of marriage and divorce
was deemed a usurpation of authority even when
both the parties voluntarily submitted to its juris-
diction. But in cases where the court of the Gen-
tiles exercised merely an ancillary jurisdiction for
the purpose of enforcing a decree of the Jewish
court, its action was recognized as valid and bind-
^ Maimonides' Treatise Gerushin ii, 20, inferred from Tal-
mud Babli Baba Bathra 48 a.
3 Mishnah Gittin ix, 8.
' Idem i, 5.
* T^mud Yerushalmi Qiddushin sub Mishnah i, i (48 a)r
60 THE JEWISH LAW OF DIVORCE.
ing, because it was merely the executive agent of
the Jewish court and did not assume any original
jurisdiction.^ Hence the Mishnah states, " if the
heathen tribunal forces the husband to give a Get,
saying to him, ' Do thou that which the Jewish tri-
bunal has ordered thee to do,' the divorce is valid." ^
Although in course of time the wife was recog-
nized as a plaintiff in divorce proceedings and could
obtain a decree of the Court to compel her hus-
band to divorce her, the law always supposed that
the husband was giving the divorce of his own free
will and accord. By means of this legal fiction no
violence was done to the letter of the old law, and
the theory of the husband's exclusive right to give
the divorce was apparently maintained; yet the
divorce given by the husband under order of the
court, at the suit of his wife, was as much a judicial
divorce as any modern proceeding of such a nature.
The woman was never entitled to divorce her hus-
band at Jewish law. Such an act would have been
in opposition to the fundamental theory that divorce
was the exclusive right of the husband, and although,
as was shown above, this exclusive right was modi-
fied in favor of the wife, the old forms were always
used and the idea of the bill of divorce given by the
wife to her husband was impossible to the Jewish
legal mind.
Josephus records that two ladies of the royal
^ During the latter days of the Jewish Commonwealth,
when the Roman power was established in Palestine, it was
not unusual for the Jewish Courts to call in the aid of the
Roman Courts to enforce their decrees.
2 Mishnah Gittin ix, 8.
THE wife's right TO SUE FOR DIVORCE. 6 1
house of Herod the Great divorced their husbands
by sending them a Get. These were Salome, the
sister of Herod/ and Herodias, his grand-daughter.^
In both cases, Josephus notes his disapproval, and
he declares these things to have been done in con-
tempt of the Jewish law. Judea was at that time,
and had been for two hundred years, a vassal of
Rome. Roman influence made itself felt, especially
among the upper classes, and it is very likely that
these high-born dames were supersaturated with
Roman culture.
The Roman law,' at the time of Herod allowed
women to divorce their husbands, and it was under
this influence that the divorces were given by the
women of Herod's family.*
This departure from the Jewish law by the
Herodian family had its influence on the people
and, no doubt, found imitators. It seems to have
attracted the attention of Jesus, and he strongly
condemned it, saying, " if a woman shall put away
her husband and be married to another she com-
^ Josephus' " Antiquities of the Jews," Book xv, Chap. ii.
^ Idem, Book xviii, Chap. 7.
' Institutes of Gains, I Sect. 137.
* The repudiation at Roman Law was valid, although with-
out cause, so that it was not necessary to acquaint the other
party with the change in his or her condition. If the wife
repudiated her husband in the presence of witnesses, the mar-
riage was dissolved without notice to the husband (Code of
Justinian, Book v, Title xvii. Constitution 6), although it
was considered proper to give such notice (Digest, Book
xxiv. Title ii, Fragment ii, Section iii). The wife who was
in manu could not divorce her husband.
62 THE JEWISH LAW OF DIVORCE.
mitteth adultery ; "^ and this was an exact statement
of the Jewish law. The practice which is thus
condemned existed for a time under the Roman
influence, but after the destruction of the Temple
it was heard of no more.
The right of the wife to demand a divorce from
her husband having once been established, the
causes for which that right could be exercised
gradually became more numerous. The purpose of
the marriage was fulfilled only when the conjugal
parties were in entire harmony. At first, the law
considered few causes of sufficient consequence to
entitle the wife to a divorce. Under the shadow
of the ancient patriarchal power it was difficult for
public law to attempt. to regulate the relation of
the husband and wife; but the Mishnah records
numerous causes for which the wife could sue for
divorce.
* Mark x, 12.
CHAPTER VI.
CAUSES ENTITLING THE WIFE TO A DIVORCE UNDER
TALMUDIC LAW.
False Accusation of Antenuptial Incontinence — Refusal of
Conjugal Rights — Impotence — Vow of Celibacy — Priest's
Wife — Physical Blemishes, etc. — Leprosy — Non-support
— Restricting Wife's Lawful Freedom — Wife-beating —
Desertion — Apostasy— Licentiousness — Divorce of Be-
trothed Wife.
Husband's False Charge of Antenuptial
Incontinence. — Perhaps one of the most ancient
causes for which the wife could demand a divorce
was, the false accusation of antenuptial inconti-
nence. Philo has recorded the fact that the woman
was entitled, if she pleased, to be released from
the marriage with the man who by his false accusa-
tion had become odious to her.^
Refusal of Conjugal Rights. — TheTorah says,
" her food, her raiment and her duty of marriage
shall he not diminish.'*^ This "duty of marriage "
was obligatory on the husband, and its refusal con-
stituted a good ground of divorce. There could
not be any decree compelling cohabitation, and the
courts, therefore, did not hesitate to give the
^ Philo, "Of Special Laws Relating to Adultery, etc." Chap,
14, Yonge's Edition, Vol. Ill, pp. 323-4; supra, p. 42.
^ Exodus xxi, 10.
(63)
64 THE JEWISH LAW OF DIVORCE.
woman other redress/ A fixed period was given
to the husband to reconsider his determination and
if he had bound himself by a vow, to enable him to
be absolved therefrom. According to the School
of Hillel, one week, according to the School of
Shammai, two weeks, ^ and according to the later
Schools, four weeks ' were allowed him. The time
having elapsed, he was obliged either to restore
her conjugal rights or to give her a bill of divorce.*
Mohammed adopted this provision of the Jewish
law, and gave the husband a longer time for con-
sideration. " They who vow to abstain from their
wives are allowed to wait four months, but if they
go back from their vow, verily, God is gracious and
merciful ; and if they resolve on divorce, God is he
who heareth and knoweth.''^
The Jewish wife was at liberty to exercise her
option either to demand a divorce after the period
fixed by law had elapsed, or to remain with her
husband. In the latter case, if he continued refrac-
tory, he was fined three denarii weekly,^ which were
allowed to accumulate and were added to her dowry,
becoming, like the latter, a lien on his estate.
When the refusal of the husband was due to sick-
ness or temporary impediment, he was allowed six
^ Mishnah Nedarim ix, 4.
^ Mishnah Kethuboth v, 6.
^ Maimonides' Treatise Ishuth x, 23.
* Mishnah Kethuboth v, 6. If the bridegroom refused to
consummate the marriage after betrothal, the bride was en-
titled to a divorce (Mishnah Kethuboth xiii, 5).
*» Koran (Sale's Translation), SOra 2.
® Mishnah Kethuboth v, 7.
CAUSES ENTITLING THE WIFE TO A DIVORCE. 65
months* time to be cured. If after this time he
was found incurable the wife was entitled to a di-
vorce.^ But if the disease or impediment was in
its nature curable, additional time was given, and
the divorce was not decreed until the possibilities
of curing it had been exhausted.^
Impotence of the Husband. — Under an old
rule of law the woman who charged her husband
with impotence was entitled to a divorce, without
being compelled to prove the charge.* But as this
led to abuse and fraud, a later Mishnah made it
obligatory on the court to attempt to reconcile the
parties before compelling the husband to divorce
her.^
The natural desire to have children to support
the declining years of the parents, was elevated to
the dignity of a quasi-legal right.* If the marriage
was childless after ten years of cohabitation and
the wife charged the husband with physical impo-
tence, she was entitled to a divorce.^ If there were
cross-charges, each charging the other with impo-
tence, Rabbi Ami decided that the presumption
was always in favor of the woman and the burden
of proof rested on the husband '^ for it was a pre-
sumption upon which the Rabbis constantly acted,
that in matters affecting husband and wife, the
* Maimonides* Treatise Ishuth xiv, 7.
^ Beer Heteb to Eben Haezer 76, Sect. 11.
^ Mishnah Nedarim xi, 12.
* Ibid.
5 Talmud Babli Yebamoth 65 b.
« Ibid.
^ Talmud Babli Yebamoth 65 a.
66 THE JEWISH LAW OF DIVORCE.
latter would not venture to assert a fact in the
presence of her husband unless it were true.^
Wife's Vow of Abstention from Connubial
Intercourse. — Under an old law, the wife who
vowed to abstain from connubial intercourse was
entitled to a divorce from her husband.^ The ob-
ject of marriage having been defeated, the woman
was entitled to a divorce, even though her husband
was willing to maintain the mere form of mar-
riage. But as it was a double hardship in this case,
for the husband to be compelled to divorce his wife
and at the same time pay her the Kethubah, when
he was perfectly innocent of any wrong, a partial
remedy was provided by the later Mishnah. Un-
der the Mosaic Law, the husband had the right to
annul the vows of his wife;* the Rabbis therefore
decided that in this case the husband could annul
her vow so far as it related to him. If, after the
vow had been annulled by him, the woman per-
sisted in her resolution, she was no longer entitled
to a divorce, and the husband was released from
the payment of the Kethubah, if he chose to di-
vorce her.* The fault in this case clearly lay with
the woman, who attempted by her vow of absten-
tion to annul her vows of marriage.
Priest's Wife who has become Unclean. — An-
other instance in which the wife could by her own
will establish the cause for which the husband was
compelled to divorce her, was the case of the wife
1 Talmud Babli Gittin, 64 b.
' Misbnah Nedarim xi, 12.
' Numbers xxx, 8-9.
* Talmud Babli Kethuboth 63 b.
CAUSES ENTITLING THE WIFE TO A DIVORCE. 67
of a priest who went before the court declaring
that she was unclean, /. e,, that she was no longer
fit to live with him, an account of his holiness of
station. Upon her statement and without requir-
ing further proof, the court compelled the husband
to divorce her ;^ but in order to prevent abuse of
this privilege, the later law compelled the wife to
properly prove her case, before she was entitled to
her divorce.*
Physical Blemishes, etc. — Rabbi Simon ben
Gamaliel (Nasi from 140-164 C. E.) decided that
where the husband was afflicted with a serious
disease, such as leprosy or ttoXvttos,* or where he
was engaged in some malodorous business, such as
gathering dog's dung, smelting copper or tanning
hides, that the wife was entitled to a divorce,* and
it made no difference that these objections were
known to her before the marriage. But if she had
especially covenanted before her marriage not to
take advantage of these objections for the purpose
of suing for divorce, she was estopped from urging
them for such purpose.* In the case, however,
where the husband was afflicted with leprosy, the
divorce was enforced by the court without respect
to the wishes of the parties, because connubial
intercourse would "unnerve" him.'
Refusal to Support. — Among the first duties
^ Mishnah Nedarim xi, 12.
* Ibid.
' Some ofEensive catarrhal affection (cancer ?).
* Mishnah Kethuboth vii, 9.
^ Ibid, 10.
« Ibid.
68 THE JEWISH LAW OF DIVORCE.
imposed upon the husband was that of properly
maintaining or supporting his wife, /. e,, giving her
food, raiment and shelter, in accordance with her
station in life.^ The minimum was prescribed by
law, and consisted of those absolute essentials
without which life would be a misery. When a
man was so poor that he could not even give his
wife the absolute necessaries of life, he was obliged,
on her application, to give her a divorce,* and her
Kethubah remained a lien on all his after acquired
goods, until he had paid it in full. The later Rab-
bis went further, and said that he who had only
one day's food would be compelled to give her as
much of it as was necessary for her support ; ^ if
he had lands, she could take the usufruct for her
support, and in case this was not sufficient, she
could take the land itself ; and the husband was
obliged to sell it to support her.* Still others went
to the length of saying that he must hire out as a
day laborer in order to fulfil the obligations of the
Kethubah and support his wife ; ® and in case the
husband was rich he was not only compelled to
give his wife the common necessaries of life, but
was obliged to support her in accordance with his
wealth and station.* If the husband refused to
support his wife, the court made an order for her
^ Mishnah Kethuboth v, 8, 9.
* Talmud Babli Kethuboth 63 a.
' Opinion of Rabbi Solomon ben Adreth cited in Rabbi
Isserles' gloss to Eben Haezer Ixx, 3.
* Ibid.
* Ibid.
* Mishnah Kethuboth v, 9.
CAUSES ENTITLING THE WIFE TO A DIVORCE. 69
support, and if he then refused to obey the order
of the court and would not even give her the
necessaries of life, or if he had nothing and was
not willing to make an effort to earn enough
to maintain her, she was entitled to a divorce.^
When this question arose in the Schools of
Babylonia,^ Rab or Abba Areka (175-247 C. E.)
was of the opinion that she was entitled to a
divorce immediately, for, said he, "the woman has
the right to say, I cannot dwell in the same cage
with a serpent." But the opinion of his contem-
porary Mar Samuel bar Abba (160-257 C. E.),
commonly called Samuel, prevailed, that the Court
must first order him to support her and upon his
refusal to do so, she is entitled to a divorce.'
Restrictions on the Wife's Liberty.— It was
the privilege of the husband, under the Mosaic
Law, to annul the rash or improvident vows of his
wife and absolve her from their obligation,* and his
failure to do so was, in some cases, considered
tantamount to a severance of the marriage rela-
tion. Where the wife by a vow deprived herself
of any right or privilege, and the husband did not
absolve her, as he might have done, she was entitled
to a divorce.*
The presumption in this case was that the hus-
band having neglected to annul her vow, was satis-
1 Talmud Babli Kethuboth 77 a.
2 Ibid.
^ Some of the later Rabbis adhered to the opinion of Rab.
Beer Heteb to Eben Haezer cliv, 3.
* Numbers xxx, 8-9.
^ Mishnah Kethuboth vii, 2-5.
70 THE JEWISH LAW OF DIVORCE.
fied with it. This placed him in the same position
as though he had made such a vow, laying certain
restrictions upon his wife, and for this she was
entitled to a divorce.^
Among the cases cited in the Mishnah are vows
that she shall not eat a certain kind of fruit or wear
a certain ornament; that she shall not enter her
father's house, or a house of mourning or rejoicing.
Rabbi Kahana (about 400 C.E.) includes the case
where he vows that she shall not borrow any cook-
ing utensil of her neighbors, " for this will give her
a bad reputation,"^ and Rabbi Simon ben Gama-
liel (about 150 C.E.) decided that where the hus-
band interdicted his wife, by a vow, from the per-
formance of any kind of work, thereby condemning
her to live in idleness, she was entitled to a divorce,
because idleness might result in mental aberra-
tion.*
The effect of these decisions, generally stated,
was, that when the husband treated his wife tyran-
nically and sought to deprive her of her lawful
freedom, she was entitled to a divorce. Under the
later law, she was even privileged to refuse to allow
her mother-in-law or other persons to come to live
in the same house with her if she feared that they
would annoy her, on the broad principle that this
was an infringement on her right of personal lib-
erty.*
Wife beating. — All systems of law, ancient as
1 Talmud Babli Kethuboth 72 a.
» Ibid.
^ Mishnah Kethuboth v, 5.
* Majmonides' Treatise Ishuth xiii, 14.
CAUSES ENTITLING THE WIFE TO A DIVORCE. 7 1
well as modern, gave the husband the right to
moderately chastise his wife for her misconduct.^
The Koran says : " Those whose perverseness you
are apprehensive of, rebuke ; and remove them into
separate apartments and chastise them."^
The opinion of Rabbi Isserles, as reported in
Eben Haezer, Cap. 154, Sec.3, sums up the ancient
Jewish law and its bearing on the question. He
says, " A man who beats his wife commits a sin, as
though he had beaten his neighbor, and if he per-
sists in his conduct the court may castigate him
and excommunicate him and place him under oath
to discontinue this conduct ; if he refuses to obey
the order of court, they will compel him to divorce
his wife at once (though some are of the opinion
that he should be warned once or twice) because it
is not customary or proper for Jews to beat their
wives ; it is a custom of the heathen. This is the
law where he is in fault ; but if she curses him or
insults his parents, some are of the opinion that
he may beat her, and others say even if she is a
bad woman he may not beat her ; but I am of the
first opinion. If it is not known who began the
quarrel the husband is not permitted to testify that
she was the aggressor ; for all women are presumed
to be innocent.*'
To this opinion is appended the opinion of the
Rabbi Jacob Weil, that " he who beats his wife is
in greater fault than he who beats his neighbor, for
^ Novels of Justinian cxvii, Sec. 14. Blackstone's Commen-
taries i, 144.
^ Koran (Sale's Translation), Siira 4.
J 2 THE JEWISH LAW OF DIVORCE.
he is not obliged to protect the honor of his neigh-
bor, but he is obliged to protect the honor of his
wife ; he must honor her more than himself ; she
rises with him but does not descend with him ;^
she was given him as a companion for life and not
for misery,^ and his punishment for ill-treating her
is greater than for ill-treating his neighbor, for
she trusts in him and confidingly rests under his
roof."
Desertion. — The wife was entitled to a divorce
in cases which amount to a technical desertion,
in the modern sense of the term. It must be pre-
mised that if the husband deserted his wife and
was beyond the jurisdiction of the court, he could
not be corppelled to give his wife a Get, and
even though he remained away and was never
heard of again, the wife was not freed from the
bonds of matrimony ; for, in the first place, it was
always the husband who was presumed to grant
the divorce, although it was done under the order
of the court, at the suit of the wife. There is no
proceeding known at Jewish law, analogous to a
modern suit for divorce on the ground of the hus-
band's desertion, in which the divorce is granted
judicially in the absence of the husband and with-
out his consent. There is, in the second place, no
presumption of death from absence after a certain
number of years and, therefore, the woman who
was deserted by her husband remained a wife for-
ever, as she had received no Get from him and as
1 Talmud Babli Kethuboth 60 a.
2 Talmud Babli Kethuboth 61 a.
CAUSES ENTITLING THE WIFE TO A DIVORCE. 73
she could not be presumed to be his widow. She
was known as the Egunah (the chained one).^
But there are cases at Jewish law which may
technically be termed cases of desertion, in which
the wife was entitled to receive a Get from her
husband before he left the jurisdiction of the court.
Where she, living in a foreign country, desired to
remove to Palestine, or, living in Palestine, desired
to remove to the city of Jerusalem, and her hus-
band refused to allow her to remove, or to accom-
pany her, he was, at her instance, compelled by
the court to give her a Get ; or if she was living
in Jerusalem and he desired her to remove to some
other city in Palestine, or, if living elsewhere in Pal-
estine, he desired her to remove to some foreign
country, and she refused to accompany him, she
could, if she feared that he would desert her, appeal
to the court, who would compel him to give her a
bill of divorce before leaving.'
This divorce for desertion was granted only in
the above cases, and did not apply to other countries
or other cities than Palestine or Jerusalem, and the
reason therefor is to be found in the special favor
with which the people looked upon the Holy Land
and the Holy City. They were considered the
places set apart for the Hebrews, where they could
reside under the special protection of the Deity.
^ At the Roman Law the period of limitation was five years,
and if the husband was taken captive and did not return
within this period, his wife could marry again without first
sending him a Bill of Divorce. (Digest, Book xlix, Title xv,
Fragment xii, Section iv.)
2 Talmud Babli Kethuboth no b.
5
74 THE JEWISH LAW OF DIVORCE.
" It is better to live in Palestine," says an anony-
mous Talmudical authority, " even in a city where
the majority are Gentiles, than to live outside of
Palestine, even in a city where the majority are
Jews; for one dwelling outside of the land of
Canaan is to be considered as though he had no
God, as it is written,^ * I am the Lord your God
which brought you forth out of the land of Egypt
to give you the land of Canaan and to be your Gody
and as it is furthermore written^ that David said,
when he fled before Saul, * They have driven me
out this day from abiding in the inheritance of the
Lord saying, Go serve other gods.' " ' Residence
in Palestine was closely associated with the pro-
tection of Divine Providence, and one dwelling in
a foreign country was in a sense removed from
such protection.
Another element which led to this assignment
of superiority to Palestine was the natural and
deep-rooted aflFection which it, and particularly the
City of Jerusalem, had awakened in the popular
mind, after the return from the Babylonian cap-
tivity. It was then that the patriotism and loyalty
of the people to their mother country, raised it to
be the dwelling place /^^ excellence of the Jew, and
established the right of the wife to refuse to follow
her husband in case he desired to remove her
beyond its boundaries.
Under the later law the principle was extended.
^ Leviticus xxv, 38.
* I Samuel xxvi, 19
' Talmud Babli Kethuboth no b.
CAUSES ENTITLING THE WIFE TO A DIVORCE. 75
If a man was about to leave the jurisdiction of the
court, no matter in what country, to go to another
country, he was eitheV placed under oath not to
desert his wife, or, if he insisted on going, was
compelled to divorce her.^
Apostasy. — An Israelite who apostatized was
not ipso facto divorced from his wife ; his contract
of marriage was binding,* and his wife, therefore,
could be divorced only by a Get in- the usual form.*
The solidarity of the Jews still kept the apostate
within the brotherhood in spite of his transgres-
sion;* but his apostasy was deemed a sufficient
ground for divorce.
As the Jewish courts, however, in such cases
had lost their authority over him, it was deemed
lawful to appeal to the Gentile Courts presided
over by judges who were of his new faith,* to carry
out the mandate of the Jewish Courts of Law.
This proceeding was resorted to during the Middle
Ages, and precedents for it were found in the early
Talmudical times, when appeals were had to the
Heathen courts to carry the Jewish order of
divorce into execution.®
Husband's Licentiousness. — As long as po-
^ Eben Haezer cliv, 8-9
2 Talmud Babli Kethuboth 30 b.
^ Maimonides' Treatise Ishuth iv, 15.
* At Roman Law loss of citizenship, which was equivalent
to dissolution of religious community, did not dissolve the
marriage unless the innocent party consented thereto (Code
of Justinian, Book v. Title xvii, Const i).
* Beth Joseph 134.
^ Mishnah Gittin ix, 8.
76 THE JEWISH LAW OF DIVORCE.
lygamy and concubinage were legally sanctioned,
there was a very marked distinction made between
the sexual immorality of the husband and that of
the wife. Adultery, technically speaking, could
be committed only by the wife ; and the married
man who had formed connections with other
women was not guilty of that offense in the same
sense. After polygamy and concubinage had been
interdicted by custom, the licentious conduct of
the husband was deemed more serious in the eye
of the law, and if he persisted in it, by associating
with harlots or other depraved persons, his wife
was entitled to be divorced from him.^ Polygamy
was lawful, but not generally countenanced, and
Rabbi Ami (about 300 C.E.) went to the length of
saying that a man had no legal right to marry a
second wife without the consent of his first wife,
and that the latter was entitled to a divorce from
him, if he did not first consult her ; but this opin-
ion did not prevail against the old law, that a man
may marry as many wives as he can support.^ The
legal right to marry more than one wife was, how-
ever, rarely exercised, many communities living in
absolute monogamy even during the period of the
Mishnah,^ long before the decree of Rabbi Ger-
^ Rabbi Isserles to Eben Haezer cliv, i.
2 Talmud Babli Yebamoth 65 a.
* There are many indications in the Mishnah that monogamy
was the rule and polygamy the exception. In Mishnah Ye-
bamoth ii, 9 and 10, it is stated that, among others, the mes-
senger who brings the Get from foreign parts shall not marry
the divorced woman ; but if the messenger was a married
man at the time when he brought the Get and his wife after-
CAUSES ENTITLING THE WIFE TO A DIVORCE. ^^
shorn (about 1025 C.E.), by which polygamy was
officially interdicted.
Divorce of Betrothed Wife. — The betrothal,
anciently, took place twelve months before the
marriage, the bride meanwhile remaining with her
parents, but being in all other respects bound as a
wife, and freed only by death or divorce ; hence,
the various laws respecting the right of the woman
to a divorce apply as well to the betrothed as to the
married woman.^
wards died, he was then permitted to marry the divorced
woman. The presumption that he had assisted in divorcing
her because he wished to marry her himself, is rebutted by
the fact that he had a wife living at the time. See infra, p.
108.
^ Mishnah Kethuboth v, 2. In the case of Lindo vs. Beli-
sario, i. Hagg. Consist. Repts. 216 (1795), Lord Stowell in a
long and learned opinion discusses the Jewish Law of be-
trothal and marriage, and points out the essential distinction
between them. The case is interesting on account of the
large number of experts in the Jewish Law who were called
to testify, and whose opinions are cited at length.
CHAPTER VII.
RECONCILIATION AND REMARRIAGE.
Attempt to Reconcile the Couple a Duty of the Rabbis
Under the Law— Rabbi was Legal and Spiritual Adviser
— Absolving Husband from Vow to Divorce his Wife-
Remarriage of Divorced Couple — Prohibition of the
Remarriage of the Divorced Couple after the Wife had
been Married to Another— The Deuteronomic Law —
Views of Philo and Jesus Mohammedan Law — The
Issue of such Unlawful Marriage is nevertheless Legiti-
mate — Other Persons whom the Divorced Wife may not
Marry.
While conceding the right of the husband to
divorce his wife, and the right of the wife to sue
for divorce from her husband, the law nevertheless
sought to prevent divorce without cause by every
means within its power, short of an absolute denial
of the legal right. The close union between mat-
ters spiritual and temporal among the Jews made
"The Law" not merely the rule of action regula-
ting the conduct of men in the ordinary transac-
tions of life, but included in this term the ethical
standards and religious ideals of the people. The
Rabbi was judge, legal adviser, spiritual guide
and religious instructor. This combination of
functions resulted in establishing a system of
equitable rules among the Jews separate and apart
from the Law. These equitable rules and maxims
(78)
RECONCILIATION AND REMARRIAGE. 79
were merely hortatory, and represented the moral
principle protesting against an inequitable appli-
cation of purely legal rules. But as these equitable
principles were expounded by the same Rabbis
who laid down the law, they received the acknowl-
edgment of the people and came in time to
have almost the same force and effect as the law
itself ; so that in the Codes of Law will be found
legal rules and equitable maxims and admonitions
side by side.
The reconciliation of persons about to be di-
vorced, or who had already been divorced, afforded
a fair field for the application of these ethical pre-
cepts. Besides the legal safeguards against un-
reasonable and ill-advised divorces, moral suasion
was a potent factor,^ and it was the duty of the
judges or Rabbis to exercise their influence in
checking the unrestrained passions that often
prompted men to divorce their wives without cause.
If a man vowed or took an oath to divorce his
wife, he was obliged, in accordance with the Mosaic
Law, to fulfil his vow : " If a man make a vow unto
the Lord, or swear an oath to bind his soul with an
obligation, he shall not profane his word, according
to all that proceeded out of his mouth shall he
do."'' To take an oath to do a certain thing, and
not to perform the obligation was deemed sacrilege
^ According to an old tradition the greatest glory of Aaron
the High Priest was his work in reconciling discontented
husbands and wives and inducing them to live together in
harmony. — Aboth di Rabbi Nathan 12.
2 Numbers xxx, 3.
80 THE JEWISH LAW OF DIVORCE.
** Ye shall not swear by my name falsely ;" ^ and the
person thus offending was punished by the inflic-
tion of thirty-nine stripes.^ But it was always
possible for a man to annul his vow by retracting
and assigning as a reason rashness, heedlessness
or mistake, and having his retraction confirmed in
the presence of the court, whose duty it was to
pronounce him free from his obligation.
When a man vowed to divorce his wife and went
to the Beth Din (Court) for the purpose of having
the Bill of Divorce prepared, it was the duty of the
judges to use their utmost endeavor to dissuade
him from carrying out his purpose, by pointing out
to him all of the evil consequences of such an act ;
if after such an appeal by the judges, the husband
expressed his regret for having intended to divorce
his wife, they could at once absolve him from his
vow.^ The judges appealed to his sense of honor
and self-respect, and they pleaded with him in
behalf of the good name of his children. They
said to him, "Do you know that to-morrow people
will say of you. This man is accustomed to divorce
his wives. And your daughters will become ob-
jects of scorn and will be pointed out as the
daughters of the divorced woman, and people will
assume that you divorced your wife because of
some guilty conduct on her part, and the disgrace
will fall on your children.*' If, after such an
appeal, the husband admitted that if he had known
^ Leviticus xix, 12 ; Exodus xx, 7.
^ Mishnah Shebuoth iii, 4.
^ Mishnah Nedarim ix, 9.
RECONCILIATION AND REMARRIAGE. 8 1
all of this he would not have vowed to divorce his
wife, the court seized upon this expression of
regret on his part to absolve him from his vow.^
After the parties had been divorced, the law
favored a remarriage. The School of Shammai,
held that if a man had divorced his wife, and
remained with her at an inn, she required no
second Get ; ^ i. e.y there was no presumption of re-
marriage; but the School of Hillel were of the
opposite opinion, which prevailed, holding this to
be a sufficient indication of an intention to live
together again as man and wife.*
After the remarriage had taken place, the old
Get by which the woman was divorced lost all
validity and force, and if, for any reason, another
divorce was contemplated, a new Get was required.*
If the Get was lost, and some one found it, he
was not obliged to return it, for it was presumed that
after it was written the husband changed his mind
and threw it away,^ and this presumption warranted
the finder in not returning it to its owner.
The remarriage of a divorced couple was per-
mitted during the Middle Days of Passover and
the Feast of Tabernacles,^ although new marriages
^ Mishnah Nedarim ix, 9.
2 Mishnah Eduyoth iv, 7.
» Ibid.
* Ibid.
^ Mishnah Baba Megia i, 7.
^ Mishnah Moed Qaton iii, 3 ; if the couple had been
divorced after betrothal but before the marriage had been
consummated, the reconciliation was deemed a new marriage
and was not permitted during the festive season. — Talmud
Yerushalmi Moed Qaton i, 7 (80 d).
82 THE JEWISH LAW OF DIVORCE.
were forbidden during these days. The reconcilia-
tion was a continuation of the marriage formerly
existing between the divorced couple and was not
deemed a new marriage. Hence the provision
"when a man has taken a new wife he shall not go
out to war/'^ was held not to apply to the case of
a man who had remarried his divorced wife, and
such a one was not exempt from military service.^
Prohibition of the Remarriage of the Di-
vorced Couple after the Wife had been
Married to Another. — In the pre Deuteronomic
age, the divorced woman who had gone to be mar-
ried to another man, and who had been freed from
the second marriage, could again be married to her
first husband. In the Deuteronomic Code this was
expressly forbidden. Remarriage with the di-
vorced wife offended the moral sense of the
Hebrews, who looked upon it as an "abomination
before the Eternal." ' This strong condemnation
of what was, no doubt, established custom, cannot
fail to arrest attention. The prophet Jeremiah
alluding to this law calls the remarriage a " pollu-
tion." " They say if a man put away his wife, and
she go from him, and become another man's, shall
he return to her again ? Shall not that land be
greatly polluted } " *
There is here a curious blending of the purely
^ Deuteronomy xxiv, 5.
* Mishnah Sotah viii, 3.
^ Deuteronomy xxiv, 4. Abominations in the Deuteronomic
sense are crimes such as idolatry, witchcraft, offences against
the Levitical laws, false weights and measures, etc.
* Jeremiah iii, 1.
RECONCILIATION AND REMARRIAGE. 83
legal and the ethical view of the matter. The
divorced woman was not forbidden to contract
a second marriage ; but, having done so, she
was thereby forever deprived of the right to re-
marry the first husband who had divorced her.
She had become " defiled '* for him. The law in-
timates that even after her divorce, the wife had
still clinging unto her some of the duties of wife-
hood; for the marriage of the divorced woman,
although entirely legal, was deemed improper, a
^^/^j/-adultery.^ There seems to have been some
analogy between the case of the divorced woman
who had married another and the case of the adul-
teress ; and even as the law would not permit a
man to live with an adulterous wife, so he was
forbidden to live in a second marriage with his
divorced wife, if she had in the meantime been the
wife of another. Adultery was punished by death, ^
and if the analogy between the two cases is a true
one, the offence of remarriage with the divorced
woman should also be punished by death. On
this point Deuteronomy is silent. Philo, in com-
menting on the law, uses the following strong
language:* "But if any man should choose to
form an alliance with such a woman, he must be
content to bear the reputation of effeminacy . . .
and as having stamped on his character two of the
greatest iniquities, adultery and the employment
^ Commentaries of Aben Ezra and Nahmanides to Deu-
teronomy xxiv, 4.
^ Deuteronomy xxii, 22 ; Leviticus xx, 10.
^ "Of Special Laws against Adultery," etc , Chap, v, Yonge's
Edition, Vol. Ill, p. 311.
84 THE JEWISH LAW OF DIVORCE.
of a pander; for the reconciliations which take
place subsequently, are indications of the death of
each ; let him therefore suffer the punishment
appointed together with his wife." This was the
opinion of the great Jewish moralist of Alex-
andria.^
Jesus, the great Palestinian moralist, was equally
severe in his condemnation. According to his view
the marriage of the divorced woman to another
man was adultery. " Whosoever marrieth her that
is put away committeth adultery."'^ Paul likewise
condemns it, saying, "Let not the wife depart
from her husband, but if she depart, let her remain
unmarried or be reconciled to her husband."'
The death penalty was rarely inflicted at Jewish
law for adultery* or any other crime, and was
practically abolished forty years before the destruc-
tion of the Temple.^ It is not mentioned in the
Talmud to have ever been inflicted in the case of
a remarriage with a divorced wife after she had
been married to another. The parties to such an
unlawful marriage were forced to separate.®
By a curious perversity, Mohammed declared
the very opposite of the law in Deuteronomy to be
the proper rule for his people. " You may divorce
your wives twice ; and then either retain them
^ 10 B. C. E. to 60 C. E.
^ Luke xvi, 18 ; Matthew xix, 9.
^ I Corinthians vii, lo-ii.
* Talmud Babli Gittin 17 b.
^ Talmud Babli Makkoth 7 a; Id. Sanhedrin 41 a.
® Mishnah Derekh Ereg i ; Mishnah Yebamoth iv, 2.
RECONCILIATION AND REMARRIAGE. 85
with humanity or dismiss them with kindness.'*^
Until the third divorce the husband " had more
right to her than any one else had " and she could
not be married to another until after the third
divorce. " But if the husband divorce her a third
time she shall not be lawful for him again, until
she marry another husband. But if he also divorce
her, it shall be no crime in them if they return to
each other.*' ^
The moral reason for the Deuteronomic law
evidently did not appeal to Mohammed. And it
seems to have been obscured also in the minds of
the Rabbis by the technical sense of the law, for
they held that although the woman could not be
remarried to her first husband after her second
marriage, yet if she had been divorced and then
lived in illicit relation with another man, her
husband could remarry her, /or she had not been
married to another?
The marriage thus declared unlawful having
been dissolved by the court, the question arose as
to the legitimacy of the issue of such union. Rabbi
Aqiba decided that the child was a bastard, but
the sages overruled him, holding that the offence
of the parents was not to be visited upon their
offspring, and relying on the law in Deuteronomy,
which they construed thus : — the woman in such
case is declared to be ** an abomination,'* and upon
the principle that **the naming of the one is the
^ Koran Sura 2.
'' Ibid.
^ Mishnah Sotah ii, 6 ; Eben Haezer x, i.
86 THE JEWISH LAW OF DIVORCE.
exclusion of the other," the child is not to be con-
sidered an abomination, i, ^., illegitimate.*
Other Cases of Prohibition of Remarri-
age. — Five other cases are cited in the Mishnah
in which the husband cannot marry his wife again
after he has divorced her. All of them, however,
seem to have been merely recommendations, sug-
gesting the proper conduct of the parties under the
circumstances, but not having the force of law.
For, if the husband, in spite of the prohibition, re-
married his divorced wife, the marriage was valid
and lawful.
First. — Where the woman had been divorced by
her husband upon suspicion of her adultery, which
had risen through an "evil report'* about her.^
Second. — Where the husband divorced his wife
because she had subjected herself to the obligation
of vows.'
Rabbi MeYr stated that this law was intended to
prevent the nullification of the Get by the husband
in case he regretted the divorce. For after having
been divorced the woman could be married to an-
other man; her former husband having learned
that the vow on account of which he divorced her
could have been annulled by him, might express
his regret at the divorce saying. If I had known
this I would not have divorced her if you had given
me a hundred talents (of silver). This would have
^ Mishnah Yebamoth iv, 12 ; Talmud Babli Yebamoth
44 b.
' Mishnah Gittin iv, 7.
» Ibid.
RECONCILIATION AND REMARRIAGE. 87
sufficed to annul the Get, invalidate the second
marriage and bastardize her issue by her second
husband.
Rabbi Elazar (about lOO C.E.) was of the opin-
ion that the reason for this law was to warn the
women to be careful and circumspect in their con-
duct so as not to give occasion for any suspicion,
and not to be reckless in making vows.^
Third. — Where the husband has divorced his
wife because she is barren.^
Fourth. — Where a third person has guaranteed
the payment of the Kethubah to the wife.
The husband cannot remarry her after he had
divorced her, because it is possible that he might
divorce her in order that she may claim her Kethu-
bah from the guarantor, and then by marrying
her again he would enjoythe benefit of the Kethu-
bah which she had collected. Rabbi Simon ben
Gamaliel thought it possible that such a scheme to
defraud might arise, and therefore recommended
that remarriage in such cases be prohibited.'
Fifth. — Where one has consecrated all of his
property to religious uses, subject to the wife's
Kethubah, he must, according to Rabbi Elazar, on
divorcing her, renounce his right to remarry her,
lest the divorce and remarriage be used as a
scheme to re-possess himself of his property
through her, as in the fourth case above men-
tioned. For when she is divorced she is entitled
* Talmud Babli Gittin 46 a.
2 Mishnah Gittin iv, 11.
' Mishnah Baba Bathra x, 9.
88 THE JEWISH LAW OF DIVORCE.
to claim her Kethubah and take the property which
has been dedicated by her husband to religious
uses; and after having obtained it she might re-
marry her husband and thus place him again in
possession of his property. But Rabbi Joshua was
of the opinion that a man is not to be presumed to
have sinister designs on sacred things, and that if
he has consecrated his property to religious uses,
he will not use such pretext to regain possession
of it.^
1 Mishnah Erakhin vi, 2.
CHAPTER VIII.
JUDICIAL SEPARATIONS UNDER THE QUASI-CRIMINAL
JURISDICTION OF THE RABBIS.
Incest — Marriage of Hebrew and Heathen — The Great Re-
form of Ezra — Mamzer — Nethin Adulteress and Para-
mour — The Ordeal of the Bitter Waters — Lepers— For-
bidden Marriages of the Priests — Re-marriage of the
Divorced Couple after the Wife had been Married to
Another — Yebama — Childless Marriages.
Although not strictly cases of divorce, judicial
separations by the court in the exercise of a quasi-
criminal jurisdiction, must be noticed here. In
these cases the marriage waS declared void, on
grounds of public policy ; no Bill of Divorce was
required, as no legal marriage existed. In some
instances such judicial separations were followed
by the infliction of the death penalty on the guilty
couple, in others by the thirty-nine strips with
the lash.
Incest. — The sexual crimes enumerated in the
eighteenth chapter of Leviticus are included in
this class of cases. ^
Marriage of a Hebrew and a Heathen. — The
Torah^ mentions seven heathen nations with whom
marriage was forbidden. The Rabbis forbade mar-
^ Maimonides' Treatise Issur6 Biah i, 4-7.
^ Deuteronomy vii, 1-3.
6 (89)
90 THE JEWISH LAW OF DIVORCE.
riage with all non-Jewish people/ The reason for
the Biblical prohibition of intermarriage was the
fear lest idolatry should be introduced into Israel ;
and this reason applied with equal force to all hea-
then nations as well as to the seven nations espe-
cially mentioned. This was the interpretation of
Ezra'' when he ordained that all the Hebrews who
had returned from the exile must put away their
heathen wives.
The great religious gain of the people on their
return from Babylonian captivity was the reaction
from polytheism. A necessary sequence to this
monotheistic revival was the abhorrence of marriage
with the heathen. This was at first characteristic
of certain zealous members of the priestly class,
but within a short time it gained almost universal
acceptance among the people, and has remained
one of the distinguishing peculiarities of the Jew-
ish race until this day. The people had been told
by their teachers and prophets that their suffer-
ings were the result of their own transgression and
of their intimate intercourse with the lascivious
heatheif nations, and that a complete severance of
all intercourse with the source of this infection
was their only salvation. That was the reason of
the sweeping reforms of Ezra and Nehemiah and
of the denunciations of the prophet Malachi (about
450 B.C.).
In the memoirs of Ezra, this great reform is
described in simple yet dramatic words :
* Talmud Babli Abodah Zarah 36 b.
' Ezra, chap, viii-x passim.
JUDICIAL SEPARATIONS. QI
" Now when these things were done the princes
approached me, saying, The people of Israel, and
the priests, and the Levites, have not separated
themselves from the people of the lands. . . . For
they have taken of their daughters for themselves,
and for their sons. . . . And when I heard this
thing, I rent my garment and my mantle, and plucked
out some of the hair of my head and of my beard,
and sat down astounded . . . and I sat astounded
until the evening sacrifice. And at the evening
sacrifice I arose up from my fasting, and with my
rent garment and mantle, I fell upon my knees and
spread out my hands unto the Lord my God."
While Ezra was praying the people gathered and
stood around in tearful silence, and finally one of
them rose and said,
" We have trespassed against our God, and have
taken strange wives of the people of the land ; yet
now there is hope in Israel concerning this thing.
Now, therefore, let us make a covenant with
our God to put away all the wives, and such as are
born of them . . . and let it be done according to
the law, . . . Then arose Ezra and made the chief
priests, the Levites and all Israel, to swear that
they should do according to this word. And they
sware."
Three days thereafter, a great convocation was
held in Jerusalem, and the people sat in the
open place in the Temple Court, "trembling be-
cause of this matter, and for the great rain," and
Ezra addressed them saying, "Ye have trans-
gressed, and have taken strange wives, to increase
92 THE JEWISH LAW OF DIVORCE.
the trespass of Israel. Now, therefore, make con-
fession unto the Lord God of your fathers, and do
his pleasure; and separate yourselves from the
people of the land, and from the strange wives.
Then all the congregation answered and said with
a loud voice, As thou hast said so must we do." ^
Nehemiah, in his memoirs, also refers to this
event, and expresses no uncertain opinion about
those who had taken strange wives. His account
begins as follows : " On that day they read in the
Book of Moses in the audience of the people ; and
therein was found written that the Ammonite and
the Moabite should not come into the congregation
of God forever.* .... Now it came to pass,
when they had heard the law, that they separated
from Israel all the alien mixture,*'*
The wall of separation thus raised between Jews
and non-Jews did not at first exclude Christians.
The latter were merely a Jewish sect ; and it was
not until the doctrine of the Trinity was estab-
lished among them, that the Rabbinical interdict
was applied to them. Shortly after the Roman
Empire became Christian officially, an imperial
decree declared the marriage of Jew and Christian
unlawful and the parties guilty of the "crime of
adultery."* This law served to strengthen the
barriers between Jew and Christian ; it was copied
by all the mediaeval lawmakers and enforced with
much holy zeal.
^ Ezra, chaps, ix-x passim.
^ Deuteronomy xxiii, 3-4.
^ Nehemiah xiii, 1-3.
* Code of Justinian, Book i. Title ix, Sec. v.
JUDICIAL SEPARATIONS. 93
Marriage with a Mamzer or a Nethin. — The
Hebrews were prohibited from marrying a mamzer
or a nethin ; the law applying equally to males and
females.^
The Mamzer was one born of an adulterous, in-
cestuous or other unlawful connection,^ and was
not permitted to enter " the Congregation of the
Lord."«
The Nethinim were supposed to be the descend-
ants of the Gibeonites ;* but this will hardly ac-
count for the degraded position they occupied.
Mr. Joseph Jacobs^ has suggested a far more
probable meaning of the term. He identifies them
with the descendants of the sacred prostitutes who
haunted the Temple during the reign of the kings
who imported the idolatries of the surrounding
nations into Israel.
The Adulteress. — Under the Mosaic Law both
the adulteress and particeps criminis were put to
death/ only, however, when taken in the crime.''
When the woman was suspected of the crime, she
was obliged to submit to the ordeal of drinking
the " bitter waters," and was charged with a most
solemn oath, which was calculated to reassure her
if she was innocent and to elicit a confession from
her if she was guilty.^
^ Mishnah Yebamoth viii, 3.
2 Ibid, iv, 13.
^ Deuteronomy xxiii, 3.
* Joshua ix, passim ; 2 Samuel xxi, 2-6.
^ Biblical Archaeology, p. 104, et seq.
* Leviticus xx, 10 ; xviii, 20.
^ Deuteronomy xxii, 22.
® Mishnah Sotah i, i.
94 THE JEWISH LAW OF DIVORCE.
The Ordeal of the Bitter Waters. — " If any
man's wife go aside and commit a trespass against
him, and a man lie with her carnally, and it be
hidden from the eyes of her husband, because she
has been secretly defiled, and there be no witness
against her, and she be not detected in the fact ;
and the spirit of jealousy come upon him, and he
be jealous of his wife, and she have been defiled ;
or if the spirit of jealousy come upon him, and he
be jealous of his wife, and she have not been
defiled ; then shall the man bring his wife unto
the priest, and he shall bring her offering for her,
the tenth part of an epha of barley meal ; he shall
not pour any oil upon it, nor put frankincense
thereon ; for it is an offering of jealousy, an offer-
ing of memorial, bringing iniquity to remem-
brance. And the priest shall bring her near, and
place her before the Lord; and the priest shall
take holy water in an earthen vessel ; and of the
dust that is in the floor of the tabernacle the
priest shall take, and put it into the water; and
the priest shall place the woman before the Lord,
and uncover the woman's head, and put in her
hands the offering of memorial, which is the jeal-
ousy offering ; and in the hand of the priest shall
be the bitter waters that bring the curse ; and the
priest shall charge her by* an oath, and say unto
the woman, If no man have lain with thee, and if
thou hast not gone aside to uncleanness behind
thy husband, be thou free from these bitter waters
that bring the curse ; but if thou hast gone aside
behind thy husband, and if thou hast been defiled.
JUDICIAL SEPARATIONS. 95
and some man have lain with thee besides thine
husband — then the priest shall charge the woman
with an oath of cursing, and the priest shall say
unto the woman — The Lord make thee a curse
and an oath among thy people, when the Lord doth
cause thy thigh to fall away, and thy belly to
swell ; and these waters that bring the curse shall
go into thy bowels, to cause the belly to swell and
the thigh to fall away. And the woman shall say,
Amen, Amen. And the priest shall write these
curses on a roll, and he shall blot them out with
the bitter waters ; and he shall cause the woman to
drink the bitter waters that bring the curse, and
the waters that bring the curse shall enter into her
for bitterness. Then the priest shall take the
jealousy offering out of tke woman's hand, and
^shall wave the offering before the Lord, and bring
it near to the altar; and the priest shall take a
handful of the offering, as a memorial thereof, and
burn it upon the altar, and afterward shall cause
the woman to drink the water. And when he hath
made her drink the water, then it shall come to
pass, that if she have been defiled, and have com-
mitted trespass against her husband, that the
waters that bring the curse shall enter into her for
bitterness, and her belly shall swell, and her thigh
shall fall away; and the woman shall be a curse
among her people. And if the woman have not
been defiled, but be clean, then she shall remain
unharmed and shall conceive seed."
" This is the law of jealousies, when a wife goeth
aside behind her husband and hath been defiled ;
or when the spirit of jealousy cometh upon him,
96 THE JEWISH LAW OF DIVORCE.
and he be jealous of his wife, and he shall place
the woman before the Lord, and the priest shall
do unto her according to all this law. And the
man shall be guiltless from iniquity, and this
woman shall bear her iniquity." ^
Confession of Guilt. — If the woman under the
stress of the ordeal confessed her crime, she was
obliged to separate at once from her husband.^
The oath administered by the officiating priest was
calculated to inspire a guilty woman with terror,
and the innocent woman was reassured by the
words, " If no man have lain with thee, and if thou
hast not gone aside to uncleanness behind thy hus*
band, be thou free from these bitter waters that
bring the curse." If, however, the woman refused
to submit to the ordeaV, and there was circumstan-
tial evidence of criminality, she was declared
guilty, and a separation was decreed as if her
guilt had been fully proven.^
The adultery of the wife having been proven,
there could be no condonation by the husband;*
this was against the spirit of Jewish law.
The Biblical law of capital punishment for
adultery was abolished at an early period, and
thereafter the judicial decree of separation was
rigidly enforced ; the woman lost her Kethubah,^
and was not permitted to marry her paramour.*
^ Numbers v, 12-31. •
2 Mishnah Sotah i, 5.
^ Id. ill, 6; iv, 2.
* Id. V, I ; Mishnah Yebamoth x, i.
* Maimonides' Ishuth, xxiv, 6.
* Mishnah Sotah v, i ; Mishnah Yebamoth ii, 8.
judicial separations. 97
Abolition of the Ordeal of the "Bitter
Waters.*' — Whatever may have been the signifi-
cance of this ordeal when first established, it came
within Talmudic times to have merely a moral
meaning. It was simply a test under which the
woman, if guilty, was likely to succumb and con-
fess. The Rabbis said, "only when the man is
himself free from guilt will the waters be an effec-
tive test of the wife's guilt or innocence ; and if
he has been guilty of illicit intercourse the waters
will be of none effect."^ During the military
invasion of Palestine, and in the last days of the
Jewish Commonwealth, the Sanhedrin under
Rabbi Yohanan ben Zakkai abolished the ordeal
entirely.^
Lepers. — Under the Mosaic law a person afflic-
ted with leprosy was excluded from the society of
men, and was obliged to live "outside the camp;"
"his garments shall be rent, and his head shall be
bare, and he shall cover himself up to his lip and
Unclean, unclean, he shall call out."^ In chapter
xii of Leviticus there is an elaborate series of tests
prescribed in diagnosing this disease.
If the disease attacks husband or wife, the Court
will immediately decree a separation of the parties,*
even though they desire to continue the marriage
relation.*^ Where, however, they agree not to live
1 Talmud Babli Sotah 47 b.
'^ Mishnah Sotah ix, 9.
^ Leviticus xiii, 45-46.
* Talmud Babli Kethuboth 77 b.
5 Ibid.
98 THE JEWISH LAW OF DIVORCE.
closeted together provided their marriage is not
annulled, the Courts will not interfere/
KoHANiM. — The Kohanim^ or members of the
priestly tribe of Aaron were forbidden to marry a
divorced woman, a harlot or a Hallalah,* /. ^., one
born of the union of a priest and a woman whom he
was forbidden to marry. The High-priest was also
forbidden to marry a widow. The reason for these
prohibitions was obviously to preserve a high stand-
ard of domestic purity in the priestly families. But
even after the temple was destroyed the injunction
against these marriages was not thereby dissolved,
and it is binding to this day on many Jews who
claim descent from Aaron. Under the Talmudic
law the woman who had become a Halugah * was
also forbidden to the priest, she being considered
a divorced woman. ^
Remarriage with Divorced Wife. — ^The re-
marriage of the husband to his divorced wife after
she had been married to another was forbidden by
a positive law of the Bible ;^ such an act was
deemed a flagrant immorality.
Yebama. — A Yebama"' could not marry a stran-
ger before she had been renounced by her brother-
in-law, whose betrothed she became at the death
of her husband.®
1 Talmud Babli Kethuboth 77 b.
2 Leviticus xxi, 7.
' Ibid. 14.
* Deuteronomy xxv, 4-10.
* Talmud Babli Yebamoth 24 a.
® Deuteronomy xxiv, 1-4.
^Id. xxv, 4-10.
® Infra, page 170.
JUDICIAL SEPARATIONS. 99
Childless Marriages. — The Hebrews deemed
marriage a failure unless it resulted in the birth of
issue ; a large family was especially desirable/ and
sterility was considered a curse.* A Boraitha
states that if a couple have lived together for ten
years and no children are born to them, the hus-
band ought to give his wife a Bill of Divorce, for
the object of marriage has been defeated,* and
Mar Samuel held that the Court will compel
him to divorce her.* His opinion prevailed, al-
though this practice soon fell into abeyance.* The
Rabbis continued to urge divorce in such cases,
but did not compel the couple to separate if they
preferred to dwell together as man and wife in
spite of the childlessness of their union. The
Rabbis used moral suasion in such cases rather than
force ; they urged men and women to subordinate
their natural passions to a higher principle, and
taught that a marriage without issue was unholy.
If, however, the parties did not wish to separate,
the husband was encouraged to take another wife,
in addition to his first wife, so that the object of
marriage, the birth of children, should be attained.
Philo's opinion on this question reflects the current
Rabbinical view. Although he considered persons
who had no children, and who nevertheless would
not separate, as worthy of pardon because they
* Talmud Babli Yebamoth 6i b, 62 a.
* Deuteronomy vii, 14.
' Talmud Babli Yebamoth 64 a.
* Talmud Babli Kethuboth 77 a.
* Rabbi Isserles to Eben Haezer i, 3 ; cliv, 10.
100 THE JEWISH LAW OF DIVORCE.
were influenced by habit and familiarity, motives
of great weight, yet he recommended divorce in
such cases, lest the gratification of the senses be
considered more desirable than progeny/
^ Philo, " On Special Laws, etc.," vi, Yonge's Edition, Vol.
Ill, p. 312.
CHAPTER IX.
THE LEGAL AND SOCIAL STATUS OF THE DIVORCED
WOMAN.
Divorced Woman is Stii Juris— Cannot Marry a Kohen
(Priest)— Under the Old Law no Odium Attached to
the Divorced Woman — Change Under Later Law —
Divorced Woman Liable for her Torts — Bound by Her
Vows — She may Give Herself in Marriage to Anyone —
If Suspected of Adultery she Cannot Marry her Para-
mour—Nor the Messenger Bringing her Bill of Divorce
— Nor the Rabbi who Refuses to Absolve her Vows-
She must not Marry within Three Months after her
Divorce.
The legal and social status of the divorced
woman is but vaguely touched upon in the Bible.
There is nothing to indicate that her position was
in any sense an inferior one ; but, on the contrary,
she seems to have enjoyed certain advantages
denied to married women. The divorced woman,
like the widow/was sui juris. Before her marriage
the woman was subject to the authority of her
father {patria potestas) ; during the marriage her
husband was her master ; if widowed or divorced,
she did not again become subject to her father's
potesiasy but became her own mistress. She then
had the right to give herself in marriage,^ whereas
^ Deuteronomy xxiv, 2.
(lOl)
102 THE JEWISH LAW OF DIVORCE.
as a maiden, befi re her maturity, she was given in
marriage by her father ; and unlike an unmarried
woman or a wife, she could bind herself by her
vows.^ The only absolute disadvantage that a
bill of divorce wrought for the woman was the
denial of her right to marry a Kohen, or Priest.
" They shall not take a harlot or one that is pro-
faned, neither a woman that is put away from her
husband shall they (the priests) take; for he is
holy unto his God."^ The divorced woman is here
classed in bad society, and the widow seems to be
favored by the law, inasmuch as she was permitted
to be married to a priest. It is, however, quite
natural to look more favorably upon a woman who
is freed from the bond of matrimony by the death
of her husband than upon one who has been
divorced, and whose husband is perhaps still living.
If it be borne in mind that in theory the divorced
woman still had some of the duties of wifehood
clinging to her, it will be understood why the
priest, who must be free from all defilement, was
forbidden to take such a woman as his wife. Philo
says : " They (the priests) are permitted with im-
punity to marry not only maidens, but widows also ;
not indeed all widows, but those whose husbands
are dead, for the law thinks it fitting to remove all
quarrels and disputes from the life of the priest ;
and if they have husbands living, there very likely
might be disputes from the jealousy which is
caused by the love of men for women ; but when
^ Numbers xxx, lo.
* Leviticus xxi, 7.
STATUS OF THE DIVORCED WOMAN. IO3
the first husband is dead, then with him the hos-
tility which could be felt towards the second hus-
band dies also."^
The High Priest, by virtue of his exalted and
sanctified station, was not permitted to marry a
woman other than a virgin. **A widow or a
divorced woman or one profaned or a harlot, these
shall he (the High Priest) not take, but a virgin of
his own people shall he take for wife/*^ Here the
widow is in the same class with the divorced
woman, and the less respectable members of
society.
The marriage with the divorced woman seems,
therefore, to have been simply a mesalliance for a
priest, and there was no other odium attached to
her position. Her ineligibility for marriage with
a priest did not extend to her daughter, the latter
being in no way affected by the status of her
mother.* In the days of Ezekiel, after the Baby-
lonian captivity, the Priests and the Levites, the
sons of Zadok,* were commanded " not to take for
their wives a widow, nor her that is put away," *
exception being made in favor of the widow of the
priest. Here, then, all distinction between the
widow and the divorced woman disappears. The
last proof that the divorced woman was in no sense
under the sentence of social or religious ostracism,
^ Philo, " On Monarchy," Book ii, Chap, x, Yonge's Edi-
tion, Vol. Ill, p. 199.
* Leviticus xxi, 14.
^ Mishnah Derekh Ere? i.
* Ezekiel xliv, 15.
* Ibid. 22.
104 THE JEWISH LAW OF DIVORCE.
is furnished by the Law of the Priest's Daughter/
" And if the daughter of a priest be married unto
a stranger, she may not eat of the offered part of
holy things, but the daughter of a priest, if she be
a widow or divorced, and have no children, and is
returned unto her father's house as in her youth,
may eat of her father's bread; but no stranger
shall eat thereof." Here the daughter of the
priest during her marriage, while in the manus of
her husband, partakes of his religious status, and
if he be a stranger, that is to say, not a priest, she
loses the right that she had in her father s house
to eat of the offerings. But after she has been
freed by the death of her husband, or has been
divorced from him, she may return to her father's
house and be reinvested with her former right to
eat of the offered part of holy things.
As divorce was the right of the husband, to be
exercised by him at his pleasure, no disgrace could
attach to the status of a divorced woman, because
she might have been sent away by her husband at
any time for no reason whatsoever ; but when in
the course of time this right of the husband was
restricted, and he was obliged to show cause before
his divorce received Rabbinical sanction, the status
of the divorced woman underwent a corresponding
change. During the Talmudic period divorces
without cause seem to have become rare, and
women who had been sent away by their husbands
were looked upon with suspicion. Unless the
woman could show that the divorce had been
^Leviticus zxii, 12-13.
STATUS OF THE DIVORCED WOMAN. 10$
granted at her request, or by the order of the
Court on her application, she was suspected of
having been guilty of some offence which prompted
her husband to send her away.^ This sentiment
grew so strong that it was considered disgraceful
to marry a divorced woman, ^ who yj^s prima facie
" a wicked woman " who had been turned out of
her first husband's house because of her shameful
conduct.
Corresponding to this change in the status of
the divorced woman, was the change in the nature
of divorce proceedings. The husband's ancient
right to divorce at his pleasure, was restricted by
law and morals, and nearly all divorces were coram
jiidice. In most cases when the cause for which
the divorce was sought was trifling, the influence
of the Rabbis, or of mutual friends and relatives,
was sufficient to reconcile the parties and prevent
the divorce, and the majority of divorces were
given only where adequate cause existed.
The Divorced Woman is sui Juris, — As was
shown above, the references in the Torah to the
legal and social status of the divorced woman are
meagre, but there is enough to indicate that she
was entirely sui juris, being no longer under the
power of her husband nor, in a legal sense, a
member of the household of her father. The
Mishnah says that the woman "comes into her
own power '' (obtains her freedom) by a bill of
divorce or by the death of her husband,^ whereby
^ Mishnah Nedarim ix, 9.
^ Talmud Babli Gittin 90 b.
^ Mishnah Qiddushin i, |.
7
I06 THE JEWISH LAW OF DIVORCE.
she is invested with all the rights and liabilities of
a single woman, who has been emancipated by her
father. The vows made by the widow or the
divorced woman were, under the Mosaic law, bind-
ing upon her,^ whereas the vows of the married
woman could be annulled by her husband. If the
divorced woman re-married, the obligations which
she had assumed by her vow were still binding
upon her and could not be annulled by her second
husband.2
Another illustration of the difference between
the status of the married woman and that of the
divorced woman was their respective liability for
torts committed by them. The married woman
committing a tort was not liable in damages to the
person injured by her, as long as she remained
married ; for the property of the married woman,
during her coverture, could not be attached to
satisfy claims for damages against her. These
claims remained a lien upon her estate, and could
be enforced only when she came into possession of
it after the death of her husband or upon her
divorce.*
The divorced woman being sui juris could be
married "to any man whom she desired."^ One
of the clauses in the Get was, " thou art permitted
(to be married) to any man."* Her privilege, how-
^ Numbers xxx, lo.
' Mishnah Nedarim xi, 8.
' Mishnah Baba Qama viii, 4.
* Mishnah Gittin ix, 3.
6 Ibid.
STATUS OF THE DIVORCED WOMAN. IO7
ever, was not entirely unrestricted, her marriage to
certain persons being forbidden by law.
Restrictions on Right of Divorced Woman
TO Marry. — The divorced woman was not per-
mitted to marry the man who was suspected of
having committed adultery with her.^ While at
Roman Law she was not permitted to marry the
man who had been convicted of adultery with her,*
at Jewish law the mere suspicion of adultery was
enough to prevent the marriage. A case is sug-
gested in the Talmud in which this restriction
seems to have been removed. Where the woman
having been suspected of adultery was divorced,
and having re-married was again divorced, and then
married the person who had been suspected of
having committed adultery with her, the marriage
was not declared unlawful, because, it seems, the
other marriage, which intervened, was looked upon
as in a sense palliative of the supposed crime.*
The messenger bringing a Get or Bill of Divorce
from foreign parts could not marry the woman who
was divorced thereby.* Inasmuch as the validity
of the divorce depended upon his testimony alone,
which was accepted in lieu of the usual proof by
two witnesses, there was a strong temptation for
him, if he felt so inclined, to forge a Get in the
absence of the husband, and by making the state-
* Mishnah Yebamoth ii, 8.
* Digest, Book xxxiv, Title ix, Fragment xiii.
8 Talmud Yerushalmi Yebamoth sub Mishnah ii, 12 (4 b),
Talmud Babli Yebamoth 24 b.
* Mishnah Yebamoth ii, 9.
I08 THE JEWISH LAW OF DIVORCE.
ment that it was written and attested before him,
divorce her, and then marry her himself.
Where a woman was divorced because she had
made certain vows, which upon being submitted
to a judge were declared binding upon her, she
could not be married to him ;^ because the judge
might have refused to absolve her vows to induce
the husband to divorce her, in order that he (the
judge) might marry her.
The reason in these cases was to prevent false-
hood and self-interest from vitiating the acts of
the parties; but if the circumstances were such
that the reason no longer existed, the prohibition
against such re-marriage was removed. So that
where more than one messenger brought the Get,
or a court of three judges sustained the vows of
the woman, any one of the messengers or of the
judges could marry her after she had been
divorced.^ And so, also, if the messenger or the
judge was a married man at the time when the
woman was divorced, and his wife died, he could
then marry the divorced woman, as it was not to be
presumed that he could have had any improper
motives in the performance of his duty, or that he
would have speculated upon the contingency of
the death of his wife.^
Finally, the divorced woman was not permitted
to remarry or even to be betrothed within three
^ Mishnah Yebamoth ii, lo.
'^ Maimonides' Gerushin x, i6, Talmud Yerushalmi Yeba-
moth sub Mishnah ii, ii, 12 (4 a, b).
^ M's'iiiah Yebamoth ii, 10, supra p. y6f note 3.
STATUS OF THE DIVORCED WOMAN. IO9
months after her divorce, in order that no doubt
might be cast upon the paternity of the child with
which she then might have been pregnant.*
This law was copied by Mohammed/ with this
modification, that if the divorce was given after
the betrothal but before the marriage was consum-
mated, the woman was not obliged to wait at all
before re-marrying.*
The Mosaic law provided that the divorced
woman should not marry a priest.* This was not
because of any stigma cast upon the woman by
reason of her divorce, but because of the peculiar
sanctity of the priestly office. As the law in
Leviticus states that the priest shall not take a
woman that is put away from her husband, it was
decided that where she had been merely betrothed
and then divorced, before the marriage had been
consummated, a priest might marry her, and that
such marriage would be entirely lawful.^ The
marriage with a divorced woman subjected the
priest to the penalty of the lash, the punishment
being thirty-nine stripes,® and a son born of such a
union was not qualified to perform the usual
priestly functions."'
^ Mishnah Yebamoth iv, 10.
^ Koran Siiras 2 and 65.
^ Id. 33. The divorced wife of Mohammed was not per-
mitted to marry ; she was by a legal fiction looked upon as
the mother of all the people, and therefore within the prohi-
bition of the law forbidding incest.
* Leviticus xxi, 7.
^ Mishnah Yebamoth x, 3. See also Mishnah "Gittin viii, 7.
® Mishnah Makkoth iii, i.
^ Mishnah Therumoth viii, i.
no THE JEWISH LAW OF DIVORCE.
The moral law, which always sought to incul-
cate principles of righteousness, recommended
the gentle treatment of the divorced woman, and
especially praised him who supported and com-
forted her/
It is related of Rabbi Yos6 the Galilean (about
100 C. E.), that after his divorced wife had re-
married and was reduced to poverty, he invited
her and her husband into his house and supported
them, although when she was his wife she had
made his life miserable,* and his conduct is the
subject of Rabbinical laudation.* "Do not with-
draw from thy flesh," said Isaiah;* this Rabbi
Jacob bar Aha interpreted to mean " Do not with-
draw help from thy divorced wife."^
^ Rabbi Isserles to Eben Haezer cxix, 8.
' Talmud Yerushalmi Kethuboth sub Mishnah ,
' Midrash Bereshith Rabba xvii, 3.
* Isaiah Iviii, 7.
* Midrash Bereshith Rabba xvii, 3.
CHAPTER X.
THE PROPERTY RIGHTS OF THE DIVORCED WOMAN
AND THE CUSTODY AND MAINTENANCE
OF HER CHILDREN.
The Kethubah— The Biblical Dowry— The Ordinance of
Shimeon ben Shetah — The Lien of the Kethubah —
The Wife could not Waive her Rights under the Kethu-
bah— Dowry at Mohammedan Law— The Amount of
the Kethubah — Increase of the Kethubah — Payment of
the Kethubah —Wife's Separate Estate — Earnings, etc.,
of Divorced Wife — Prescriptive Rights against her
Former Husband — Cases in which the Divorced Wife
lost her Kethubah by Reason of her Misconduct — Cus-
tody of Children of Divorced Woman — Nurslings —
Roman Law as to Custody — Rabbinical Decisions—
Support of Children at Roman Law and Jewish Law.
The Kethubah. — ^The dowry given to the father
upon the marriage of his daughter originally was
the purchase money which the husband paid for
her. Undeniable traces of the original commercial
nature of marriage are to be found in the Bible,
although the state of society which is therein
described had already passed through the lower
stage of matrimonial bargains. When Shehem,
the son of Hamor, the Prince of the Hivites,
desired to obtain Dinah, the daughter of Jacob, for
a wife, he said unto her father and unto her breth-
ren, " Let me find grace in your eyes and what ye
(III)
112 THE JEWISH LAW OF DIVORCE.
shall say unto me I will give, ask me never so
much dowry and gift and I will give according as
ye shall say unto me, but give me the damsel to
wife/'* Other instances are the wooing of Re-
becca through Abraham's servant Eleazar, and
Jacob's service with Laban for Rachel and Leah.
In the case of Rebecca, the dowry sent by her
future husband's father accrued to her benefit as
well as that of her mother and brother ; ^ whereas
Jacob's service accrued solely to the benefit of
Laban.^ In the Book of Exodus we find the fol-
lowing : " And if a man entice a maid that is not
betrothed and lie with her, he shall surely endow
her to be his wife. If her father utterly refuse to
give her unto him, he shall pay money according
to the dowry of virgins."* The dowry was
originally payable to the father of the wife, and
late in Talmudic times this was still the law in
cases where the wife was a minor or was divorced
before the marriage had been consummated.
Eventually, however, the dowry was given to the
wife, remaining undivided in the estate of the hus-
band, and being payable to her on her divorce, or
on the death of her husband. As the heirs of the
husband often defrauded the widow of her rights,
it was ordained that the amount of the dowry
should be deposited with the father of the wife,
thus making it secure against the adverse claim of
his heirs. But as it was the purpose of the institu-
* Genesis xxxiv, 11-12.
2 Id. xxiv, 53.
^ Id. XXX, 26.
* Exodus xxii, 15-16.
PROPERTY RIGHTS. II3
tion of the dowry to act as a check upon the hus-
band, so that " it shall not be easy in his eyes to
divorce her," the deposit of the money with the
father of the wife destroyed the effect intended.
As the husband had no further payment to make,
there were no financial considerations to hinder
him from giving the divorce whenever he pleased,
and telling his wife " to go to her dowry." It was
then provided by law that the amount of the dowry
should be invested in articles of value, and that
these should remain in possession of the husband.
This regulation, however, was found to give no
greater satisfaction than the former one, for it was
very easy for the husband to give the articles of
value to his wife and tell her to go. The final
remedy, the Kethubah, was provided by an ordi-
nance of Shimeon ben Shetah.^ He ordained that
the dowry should remain with the husband and
not be separated from his estate ; that it should be
secured to the wife by a writing,^ whereby all his
estate was charged with its payment.
The Lien of the Kethubah. — The Kethubah
was, like the Common Law dower, a lien upon all
real estate owned by the husband during his life-
time, and if after his death or when he divorced
his wife he had no estate in possession, it could be
collected out of the estate which he had formerly
owned but which was now in the possession of
third persons.^ This regulation was a very im-
^ Talmud Babli Shabbath 14 b. Some Talmudists con-
sider the Kethubah a Mosaic ordinance. (Ibid.)
^ Tobith vii, 14.
3 Talmud Babli Kethuboth 82 b ; Mishnah Gittin v, 2.
114 THE JEWISH LAW OF DIVORCE.
portant check upon the freedom of divorce. The
wealth of the people consisted chiefly of estate in
lands, and as it was necessary that the Kethubah
should be paid in coin, it was often difficult for a
man to obtain so large a sum, and hence gave time
for reconsideration of his intention to divorce his
wife.^
The Kethubah Could Not be Waived. — The
Kethubah was an inalienable right of the wife, and
marriage without a Kethubah was unlawful. Rabbi
MeYr (about 150 C. E.) was of the opinion that a
man was forbidden to remain with his wife even
one hour, unless she had a Kethubah, " lest it
appear easy to him to divorce her."^ Even the
Ravisher, who is by law prohibited from divorcing
his wife, was, nevertheless, according to the opinion
of Rabbi Yos6 ben Juda, obliged to give her a
Kethubah. The Rabbis generally were of the
opinion that he need not give a Kethubah, because
he could not divorce her, but Rabbi Yosd remarked
that if she had no Kethubah, the husband could,
by making her life miserable, compel her, in self-
defence, to apply for a divorce, and thus easily get
rid of her.^ If the Kethubah was lost, a new one
had to be written. The wife could not sell her
Kethubah to her husband or release him from its
obligation,* though she could sell her right to a
1 Graetz's *' Geschichte der Juden," Vol. HI, p. 155 (Third
Edition). The American Edition, Vol. II, p. 50, does not g^ve
the sense of the ordinance of Shimeon ben Shetah.
2 Talmud Babli Baba Qama 87 a.
» Talmud Babli Kethuboth 39 b.
* Maimonides' Treatise Ishuth x, 10.
PROPERTY RIGHTS. II5
Stranger, who would be entitled to collect the
amount when she was divorced, or on the death of
her husband/
At Mohammedan Law. — Mohammed borrowed
many of the provisions of the Jewish law, fol-
lowing it closely in many instances, and in
others deliberately changing it to suit his purpose.
The Koran* provides that " unto those who are di-
vorced a reasonable provision is due." The faith-
ful are commanded to '* give women their dowry
freely,"* " according to what is ordained,"* and, if the
wife has had a larger sum allotted to her than the
law requires, the husband is charged " not to take
away anything therefrom,"* "for," asks Mohammed
indignantly, " will ye take it away by slandering
her, and doing her manifest injustice ? "
Thus far Mohammed followed the Jewish law.
In the case where a woman is divorced before her
marriage has been consummated, the Koran' rec-
ommends the husband to pay the whole dowry to
the wife, but states the law to be that she shall
receive only half of what has been settled upon
her.
The important departure of the Mohammedan
from the Jewish law is in the right given the wife
to release her dowry to her husband. At Jewish
law, the wife could not waive her dower rights in
* Maimonides^ Treatise Ishuth x, 10.
^ Siira 2.
8 Ibid.
* Siira 4.
' Ibid.
« Siira 2.
Il6 THE JEWISH LAW OF DIVORCE.
favor of her husband, but at Mohammedan law this
was permitted. " Give them their dowry," says the
Koran,* " according to what is ordained, but it shall
be no crime in you to make any other agreement
among yourselves." " If they (the women) volun-
tarily remit unto you any part of it, enjoy it with
satisfaction and advantage.'*^
The Amount of the Kethubah. — ^The amount
of the dowry was two hundred zuz (or two mina)
for virgins, and one-half of this amount for widows
or divorced women upon their re-marriage, and it
was payable in the current coin of the land.* Upon
her divorce,* the wife was entitled to the amount
thus secured to her, except in certain cases, here-
inafter enumerated.
The amount of the Kethubah above mentioned
was the minimum prescribed by law, but it could
be indefinitely increased by the husband,* and in
some instances was increased by law as a punish-
ment for the husband's misconduct.^ In either
case, upon divorcing his wife, the husband was
obliged to pay her the full amount, without any
diminution, and his entire estate was liable for its
payment. There was a case decided by Rabbi
Aqiba, where the husband had been ordered to pay
the Kethubah to his wife when about to divorce
1 SOra 4.
2 Ibid.
^ Mishnah Kethuboth xiii, 1 1 ; Maimonides' Treatise Ishuth
X, 8.
* Mishnah Kethuboth viii, 2-5.
^ Id., V. I.
* Id., V. 7.
PROPERTY RIGHTS. II7
her. He had written four hundred zuz in the
Kethubah, double the minimum amount provided
by law. He objected to paying the full amount of
the Kethubah, saying that his father had died
leaving an estate of eight hundred zuz to be
divided between himself and a brother, and that
if he were now obliged to pay to his divored wife
four hundred zuz, the full amount of her Kethubah,
it would impoverish him. He offered to pay her
two hundred zuz, the minimum provided by law,
and to retain the other two hundred zuz which he
had inherited. In rendering the decision. Rabbi
Aqiba curtly remarked : " You must pay her the
whole Kethubah, even if you have to sell the hair
off your head."^
Increase of the Kethubah. — Under certain
circumstances, the Kethubah may be increased by
law. If the husband refused his wife her conjugal
rights, and at the same time would not divorce
her, she was entitled to a divorce ; but if she did
not choose to demand a divorce, she could remain
with him, and he was punished for his default by
the addition to her Kethubah of three denarii, or,
according to Rabbi Yehudah, three trapiqin, every
week.^
If the contract or Kethubah contained other
stipulations which the husband had undertaken to
perform, he was held to a strict and faithful per-
formance of the terms of his obligation. A man
having stipulated that he would maintain and sup-
* Mishnah Nedarim ix, 5.
2 Mishnah Kethuboth v, 7.
Il8 THE JEWISH LAW OF DIVORCE.
port the daughter of his wife by a former husband,
for a period of five years, divorced his wife before
the term had expired ; he was, nevertheless, obliged
to perform the condition faithfully.*
Payment of the Kethubah. — Where the
woman who had not yet attained her majority, had
been betrothed and divorced before her marriage
had been consummated, the Kethubah was payable
to her father, and not to her ; but after she had
been married, her father lost his authority over her,
and upon her divorce the Kethubah was payable
to her, and not to him.^
Upon payment of the Kethubah, the Get, or Bill
of Divorce, was torn crosswise, and the Court
wrote on it : " We have torn this Get, not because
it is void, but in order that she may not again
claim the Kethubah. This woman is permitted to
marry again." *
As the Kethubah was established for the pur-
pose of protecting the wife against a hasty or ill-
advised divorce, all laws concerning it were con-
strued most favorably to her. If she lost the
Kethubah and produced the Get, with a statement
that the Kethubah had not been paid to her, the
court was empowered to award her the minimum
dowry prescribed by law, namely, two hundred zuz.
In such cases, as soon as the amount of the
Kethubah was paid to her, the Court noted the fact
^ Mishnah Kethuboth xii, i.
* Id. iv, 2.
» Talmud Babli Kethuboth 89 b; Talmud Babli Baba
Me9ia 18 a.
PROPERTY RIGHTS. IIQ
upon the Get, so that this instrument could not be
produced again in support of the woman's claim for
the payment of her Kethubah/ But in case she
had lost the Get, but still had the Kethubah in her
possession, and claimed that the amount prescribed
therein had not been paid, she could not recover
it from her husband. He was simply obliged to
set up a plea by way of defence, that he had paid
the Kethubah but had lost her receipt for it ; in
other words, that, as she had lost her Get, he had
lost her written acknowledgment of the receipt of
the Kethubah, and that, therefore, they were quits.
After the Hadrianic revolution under Bar Kokhba,
this law was changed. Among the edicts of the
Roman authorities intended to suppress the last
traces of Jewish national life that remained after
the unsuccessful rebellion, was one making it a
crime for the Jews to give Bills of Divorce to their
wives. This resulted in the practice of destroying
the Get immediately after its delivery to the wife,
so that its production might not incriminate the
parties.* Thereupon Rabbi Simon ben Gamaliel
decreed that the mere non-production of the Get
could not deprive the woman of her right to claim
the Kethubah.^
In all cases where the husband refused to pay
his wife the amount of the Kethubah, she had the
right of appeal to the courts, who heard and deter-
mined the merits of the case. If the decision was
^ Mishnah Kethuboth ix, g.
' Infra, page 183.
' Mishnah Kethuboth ix, 9.
120 THE JEWISH LAW OF DIVORCE.
against the husband and he failed to pay, his lands
and goods could be attached and sold by the order
of the Court at public sale for the purpose of satis-
fying her claim. If the estate of the husband was
insufficient they proceeded against the estate
formerly in his possession, and which was now in
the hands of third persons,^ and until the last Peru-
tah of her dowry was paid, her husband was obliged
to support her.*
Wife's Separate Estate. — Upon her divorce
the wife was entitled to take possession of the sep-
arate estate which she had acquired before or dur-
ing her marriage. She had the right of disposi-
tion, during her marriage, of the separate estate
belonging to her before the marriage;* but the
husband had a usufructuary right in the estate
which had come into her possession since her mar-
riage, and she had no power to sell or dispose of it
until her marriage was dissolved.^
If the husband expended money in improving
his wife's separate estate without deriving any
benefit or income from it, he was, after he had
divorced her, entitled to be repaid the amount thus
expended ;^ but if he had derived some income from
her estate during their marriage, he lost his right
to recover the amount expended by him in im-
proving it, for the law presumed that he took the
risk of getting a large or small return for his outlay
* Mishnah Gittin v, 2.
^ Talmud Yerushalmi Baba Me9ia sub Mishnah i, 5 (8 a).
^ Mishnah Kethuboth viii, i.
* Id. viii, 4.
* Id. viii, 5.
PROPERTY RIGHTS. 121
during their marriage, and nothing if he divorced
her.* It is very likely that this law also acted as a
strong check on the freedom of divorce.
Earnings, etc., of Divorced Wife. — After the
divorce, the separation of the husband and wife was
absolute. His power over her and his rights in
her estate, her earnings, etc., were at an end, al-
though she still had certain rights against him.
Until he had paid her dowry in full she was entitled
to be supported by him as though she were still his
wife. If she earned or found anything, it belonged
to her.^ It was argued that, inasmuch as she was
entitled to retain as her own that which she found
and earned, her husband ought to be relieved of the
obligation to support her, although he had not yet
paid her Kethubah in full ; but, said Rabbi Hosh-
a'yah (about 220 C. E.), it is to prevent this argu-
ment from prevailing that the Mishnah has form-
ally stated the contrary.^ In fine, she lost none
of her rights against him upon being divorced,
although he forfeited all and every right that he
had against her.
Unless a reconciliation and remarriage took
place, her relation to her husband was that of a
stranger. If the wife, for three years after her
divorce, remained in undisturbed possession of a
field belonging to her husband, she could obtain a
prescriptive right against him, and the fact that it
was his field, and that she had gone into possession
^ Mishnah Kethuhoth viii, 5.
2 Mishnah Baba Me9ia i, 5.
® Talmud Yerushalmi Baba Me9ia sub Mishnah i, 5 (8 a).
8
122 THE JEWISH LAW OF DIVORCE.
of it during their marriage, made no difiFerence.
Her holding over in undisturbed possession after
the divorce was like the possession of a stranger,
adverse to his claim, and divested him of his title ;^
although, during her marriage, the wife's posses-
sion of the husband's property did not affect his
title thereto.*
Loss OF THE Kethubah. — The wife's right to
claim the amount of her Kethubah depended on
her good conduct, and she lost her right in certain
cases if she failed in the performance of her duties
as a wife. The cases of the adulteress, against
whom the law was especially severe,* and the
woman who had been guilty of antenuptial incon-
tinence,^ founded on the Biblical laws, were, very
probably, the earliest cases in which the woman
lost her claim to the Kethubah.
Following these, the Mishnah cites a number of
cases in which the woman, by reason of her mis-
conduct, forfeited her right. If she had subjected
herself to vows before her marriage, and failed to
disclose the fact to her husband, or if she had
physical defects which she concealed, she was
guilty of fraud, and if her husband divorced her
on this account, he was not obliged to pay her the
amount of the Kethubah.* But it seems that if
the physical defects were of such a character that
the husband might, by due diligence, have learned
^ Talmud Babli Baba Bathra 47 a.
* Talmud Babli Gittin 77 a.
' Mishnah Sotah i, 5.
* Mishnah Kethuboth i, 2.
* Mishnah Qiddushin ii, 5.
PROPERTY RIGHTS. 123
of their existence before marrying her, he could
not set them up as a pretext for depriving her of
the Kethubah;^ and it was decided that, in any
event, the burden of proving that such defects
existed before the marriage was upon him.*
Generally speaking, the divorced wife lost her
Kethubah if she had been guilty of an offense
against ethical custom or usage, whether in the
breach of some ritualistic prescription or in the
violation of some social convention. In either
case, however, the offense had to be one involving
moral turpitude.
The Mishnah calls these cases breaches of the
"Mosaic and Jewish Law," the word Law being
used in the sense of usage, custom or mode of
living. A distinction is implied in the terms
"Mosaic" and "Jewish," the former referring
rather to breaches of ritual law, and the latter to
offenses against good morals and decency.
Illustrations of breaches of the ** Mosaic" law
are given in the Mishnah; for instance, if she
gave her husband food upon which no tithe had
been paid ; if she did not set apart the heave
offerings; if she broke her vows; or if she sub-
mitted to his embraces during the period when she
was unclean.
Illustrations of breaches of conventional morality
or decency are also there cited, as, for example : If
she went abroad bare-headed, with her hair loose ;
if she sat spinning in the street, or flirted with
^ Mishnah Kethuboth vii, 8.
* Ibid.
124 THE JEWISH LAW OF DIVORCE.
Strangers ; if she cursed her children in her hus-
band's presence (per Abba Saul); or, according to
Rabbi Tarphon, if she was noisy, speaking in so
loud a tone in her own house that her neighbors
could hear her.*
The following women also lost their right to the
Kethubah on being divorced : The minor who had
been given in marriage by her mother or brothers,
and who, on attaining her majority, refused to live
with her husband ; the woman who was related to
her husband within the degrees of consanguinity ;
and the woman who was incapable of bearing chil-
dren by reason of defects which existed before her
marriage, and of which her husband was ignorant.^
Refusal to Cohabit With Husband. — The
woman who denied conjugal rights to her husband
was punished by a subtraction of seven denarii a
week (or, according to Rabbi Yehudah, seven trapi-
qin), from her Kethubah, until the entire Kethubah
was gone. According to Rabbi Yos6, the deductions
were continued until her entire separate estate had
been consumed.^ The AmoraVm decided that the
Kethubah could not be diminished until after four
weeks' notice had been given to the wife.^ The
court warned her, saying, " Know thou, that even
if thy Kethubah amounts to a hundred Mina,
thou wilt lose it.*' Public notice was also given
in all synagogues and colleges during this time ;
^ Mishnah Kethuboth vii, 6.
'Id. xi, 6.
3 Id. V, 7.
* Talmud Babli Kethuboth 63 b.
PROPERTY RIGHTS. 125
after the publication the court again sent her per-
sonal notice, warning her that she would lose her
Kethubah if she continued to be refractory. If
she still persisted, her husband was released from
his obligation to support her, and she was given a
further period of twelve months to become recon-
ciled to him ; and, at the expiration of this period,
if the husband divorced her, he was not liable for
her Kethubah.^
Amemar (flourished 390-420) held that if the
wife assigned no reason for her conduct, and acted
in a malicious spirit towards her husband, the pro-
cedure above mentioned is followed. " But," he
said, " if she states that she has an unconquerable
aversion to her husband, she is not punished, but
may be divorced forthwith, and loses her Kethu-
bah."2
The Koran* says : "It is not lawful for you to
hinder them (women) from marrying others that
you may take part of what ye have given them in
dowry ; unless they have been guilty of manifest
crime." It seems that the Mohammedan courts
allowed the woman to sue for divorce without for-
feiting her dowry. In Babylonia, Jewish women
took advantage of the comparative leniency of the
Mohammedan law and applied to the Mohamme-
dan courts for divorce from their husbands. It was
therefore decreed by Mar Raba, the son of Mar
Rab Huna (about 675 C. E.), that women could sue
1 Talmud Babli Kethuboth 64 a.
^ Ibid., 63 b. Maimonides' Ishuth xiv, 8.
^ Koran, Sura 4.
126 THE JEWISH LAW OF DIVORCE.
for divorce without losing their Kethubah, in order
to prevent their appeal to the non-Jewish courts
for relief/ It seems that the leniency of the Mo-
hammedan law was not general ; Sale' states that
the woman suing for divorce usually lost her dowry^
unless some weighty cause was assigned by her.
In Christian countries this decision of Mar Raba
was not followed by the Jews, because the Roman
law, like the Jewish, deprived the wife of her dowry "
if she sued for divorce on such ground.* Maimo-
nides (1180 C. E.) notes the fact that difference of
opinion existed among the Rabbis on this point ,*
and he states^ the law to be, that the woman suing
for divorce on account of an unconquerable aver-
sion to her husband, loses her Kethubah. •
Desertion. — The woman who deserts her hus-
band, by refusing to follow him from one place to
another in the same country, or from any country
into Palestine, or from any place in Palestine to
Jerusalem, loses her right to her Kethubah on
being divorced.'' A woman was not ordinarily
obliged to expatriate herself, but was compelled to
follow her husband if he removed from one place
to another in the same country. Such was the
* Opinion of the Gaon Sherira reported in Responsa Ga-
onim Hemdah Genuzah, Jerusalem 5623. Graetz's " History of
the Jews," American Edition, Vol. Ill, p. 92.
* Koran, Preliminary Discourse, Section vi.
' Novels of Justinian cxvii, 9.
* Maimonides' Treatise Ishuth xiv, 14.
* Ibid, xiv, 8.
* See also Eben Haezer Ixxvii, 2.
■^ Mishnah Kethuboth xiii, lo-ii.
PROPERTY RIGHTS. 127
position of the land of Palestine (commonly called
the Holy Land) and the City of Jerusalem (com-
monly called the Holy City) in the mind and affec-
tions of the ancient Hebrews, that a removal from
any country into Palestine, or from any city in Pal-
estine or elsewhere to Jerusalem, was not deemed
an expatriation, but rather a return home. The
wife was not obliged to leave Jerusalem or Pales-
tine under any penalty, but was deprived of her
right to her Kethubah if she refused to remove
thither with her husband.^
The Custody and Maintenance of the Chil-
dren OF the Divorced Woman. — When Hagar
was sent away out of the house of Abraham, her son
Ishmael was sent with her,^ not because she was
entitled to have him, but because he was offensive
to Sarah, who feared that he might be allowed
to share in the inheritance with her son Isaac*
Had Abraham chosen to keep his son while send-
ing away the mother, he would have exercised an
undoubted right ; for, under the constitution of the
patriarchal household, children were the legal prop-
erty of the father, and the mother had no right
whatever to their custody.
But the same influences that modified the legal
status of the wife and entitled her to demand and
receive a divorce from her husband, affected her
rights with respect to her children, and in Talmudic
times she seems to have had stronger rights than
^ Talmud Babli Kethuboth no b; and see supra, p. 73.
^ Genesis xxi, 14.
3 Id. 10.
128 THE JEWISH LAW OF DIVORCE.
her husband to their custody. The first regula-
tions concerning the custody of the children of the
divorced woman appear to have been made during
the early Mishnic period, and relate exclusively to
the charge and care of sucklings.
The question became the subject of dispute
between the Schools of Hillel and Shammai. The
School of Shammai, who were the rigorists, declared
that when the wife had made a vow to abstain from
giving suck to her child, her vow was binding on
her and she could not be compelled to nurse the
child. The School of Hillel were of the opinion
that her vow was null and void, and that her ma-
ternal duty was paramount,^ but that if she had
been divorced she could not be compelled to nurse
the child. ^ After the mother had been divorced,
and was willing, as was most natural, to suckle her
child, she was entitled to be paid for her services,*
and her former husband was obliged to give her
especial care and attention and such extra food as
her condition required ;* but if she was unwilling
to nurse it, she could not be compelled to do so.^
If, however, the child recognizing its mother, was
unwilling to take nourishment from any other wo-
man, she was compelled to nurse it,^ and her former
husband was obliged to maintain her until the
child was weaned, /. ^., for a period of at least two
1 Talmud Babli Kethuboth 59 b.
2 Ibid.
3 Ibid.
* Talmud Babli Kethuboth 65 b.
^ Ibid. 59 b.
« Ibid.
PROPERTY RIGHTS. 129
years/ A case of this kind came before Mar
Samuel bar Abba (160-257 C. E.) known in the
Talmud as Samuel of Nahardea, in Babylonia. His
decision was reached in characteristic Oriental
style. The mother having been divorced, had
vowed not to nurse her child. He ordered her to
take her place in a row of women and the child
was borne into the room. The child regarded its
mother longer than any of the other women, and
she being overcome with confusion dropped her
eyes. "Raise your eyes," sententiously said the
Rabbi, " and take your child."^
The earliest Rabbinical regulations on record
regarding the custody of children who were no
longer nurslings are the decisions of Rabbis Assi,
of Palestine, and Ulla and Hasda, of Babylonia.
Their decisions were rendered contemporaneously
with the publication of a Constitution of the Em-
perors Diocletian and Maximian (end of third
century C. E.), which provided that, after the di-
vorce of the parents, the judge could award the
custody of the children according to his discretion,
and was not compelled to give the males to the
father and the females to the mother.^
Rabbi Assi decided that after the period of
nursing had elapsed, if the divorced woman de-
sired to keep her son, she was entitled to his cus-
tody until his sixth year.* Rabbi Ulla decided
* Talmud Babli Kethuboth 60 a. This opinion was adopted
by Mohammed. Koran, Siiras 2 and 65.
2 Talmud Babli Kethuboth 60 a.
^ Code of Justinian, Book v. Title xxiv, Const, i.
* Talmud Babli Kethuboth 65 b.
130 THE JEWISH LAW OF DIVORCE.
that, in the meantime, the husband was liable for
his maintenance and support,^ and Rabbi Hasda
decided that the mother was entitled to the custody
of her daughter without regard to her age.*
The result of these decisions was that both the
female and the male children were given to the
mother, but the custody of the boys could be
claimed by the father after their sixth year. It
was optional with the divorced mother to retain
the custody of her children after they were weaned.
If she could not or would not keep them, the hus-
band was obliged to receive them, and if he had
died in the meantime, they became wards of the
congregation.* The later law seems to have gone
back to the old rule of the Roman law, giving the
Court the power in the first instance to award the
custody of the children of the divorced couple
according to its discretion.*
The duty of the father to support his children
who are in the custody of his divorced wife is
established at Roman law by a novel of Justinian
(about sso C. E.), which provided that the legal
rights of the children and their rights to alimenta-
tion by the father, should in no way be impaired
by a divorce ; that if the divorce was given by the
wife to her husband because of his fault, she could
retain the custody of the children who were to be
maintained at the expense of the father, but if the
1 Talmud Babli Kethuboth 65 b.
2 Talmud Babli Kethuboth 102 b.
^ Maimonides' Ishuth xxi, 18.
* Rabbi Isserles to Eben Haezer Ixxxii, 7.
PROPERTY RIGHTS. I3I
mother was the guilty one, the father had the right
of custody; and if he was poor and the mother
rich, the burden of maintaining the children should
fall on her/
At Jewish law, under the decision of Rabbi
Ulla,^ the father was obliged to maintain his son
while in the custody of the divorced wife until he
reached the age of six years. Thereafter, if the
mother refused to give the child up to the father,
the latter was no longer liable for his support f but
the daughter must always be supported by her
father.* If, however, the father was dead and the
mother was unwilling or unable to support the
children, they became wards of the congregation,
and were supported out of the public fund.*
^ Novels of Justinian, cxvii, 7.
^ Supra, p. 129.
' Maimonides' Ishuth xxi, 17.
* Ibid.
^ Maimonides' Ishuth xxi, 18, et supra, p. 130.
CHAPTER XL
THE BILL OF DIVORCE (GET).
Antiquity of the Bill of Divorce— Supposed by Rabbinical
Writers to have been known to Abraham — Peculiar to
the Jews -Arabian Form of Divorce.— Form of Divorce
among Greeks and Romans— Bills of Divorce prepared
in the non-Jewish Courts.
Antiquity of the Bill of Divorce. — The
form of the bill of divorce mentioned in Deuter-
onomy, and the formalities attending its delivery
are unknown. By analogy to known forms of legal
procedure of very ancient times, it has been sup-
posed that the giving of the bill of divorce was a
formal act, done in the presence of the Elders
at the "gate" of the City.^ This, however, is
mere conjecture; and there is reason to believe
that the reverse is true. For this giving of the
bill of divorce was simply the exercise by the
husband of his right to send away his wife " if she
find no favor in his eyes ;*' and it is not to be sup-
posed that the procedure in such cases was assimi-
lated to the formal transactions between strangers
or between members of different families. The
oldest form of divorce was probably the simplest,
and the complex formalities attending the prepa-
* Deuteronomy xxii, 15.
(132)
THE BILL OF DIVORCE. 1 33
ration and delivery of the Bill of Divorce are of
comparatively late origin.
The form of divorce used by Abraham seems to
have been simple enough. " And Abraham arose
in the morning, and he took bread, and a bottle of
water, and he gave it unto Hagar, putting it on her
shoulder, and the child, and sent her away."^
A late rabbinical tradition'^ tells that Sarah re-
quested Abraham to send Hagar away by writing
a Bill of Divorce for her, and that Abraham arose
in the morning and sent her away with a Bill of
Divorce in her hand.*
But it may be assumed, despite this tradition,
that as long as the patriarchal family was nomadic
and never in permanent contact with other families,
the simple "sending away" was sufficient as an
act of divorce. When the herdsmen became agri-
culturists, with fixed habitations, new conditions
arose which gradually changed the ancient forms
of legal procedure.
With the general introduction of the art of
writing, in all probability came the Bill of Divorce
as the best means of proving the legal act, and as
evidence of the right of the wife to contract a
second marriage.*
The Bill of Divorce had been in use for so long
a time in Israel that the memory of man did not
run to the contrary, and the people could conceive
^ Genesis xxi, 14.
^ Pirqd di Rabbi Eliezer, Cap. 30.
^ Yalkut Shimeoni Genesis, Sec. 95.
* Talmud Yerushalmi Qiddushin sub Mishnah i, 5 (60 c).
134 THE JEWISH LAW OF DIVORCE.
of no period when it had not been in use ; hence
they believed that even Abraham was already
entirely familiar with the complicated divorce pro-
cedure of the later times. The patriarch Abraham
fills so large a space in the background of Jewish
history, that the people readily ascribed to him
supernatural wisdom and all-embracing knowledge,
even supposing him to have • performed all the
commandments of the Torah, although the Torah
had not yet been revealed in his day.^
Rabbinical literature contains other traditions
assigning a very great age to the introduction of
the Bill of Divorce.
The Zohar records a tradition that it was a
custom in Israel for the soldiers of King David
going to war to give Bills of Divorce to their
wives, in order to free them from the Levirate
marriage in case their husbands died in battle.*
The Mekhilta states that the bondwoman who
had been elevated to be a lawful wife' could not be
sent away without a Bill of Divorce.*
It is undoubtedly true that the Bill of Divorce
is of very great antiquity among the Jews. The
great unknown prophet of the captivity (about 550
B. C. E.), whose writings are attached to the Book
of Isaiah, forming chapters forty to sixty-six, inci-
dentally mentions the Bill of Divorce as something
^ Talmud Yerushalmi Qiddushin sub Mishnah iv, 12 (66 d).
' Zohar, Exodus 107 a. See alsoTalmud Babli Kethuboth
9 b.
' Exodus xxi, 7-1 1.
* Mekhilta Mishpatim, Sec. 3. See also Talmud Babli
Sanhedrin 22 a.
THE BILL OF DIVORCE. 1 35
well known. "Where is the Bill of Divorce of
your mother/' he says, "wherewith I have sent
her away?"^ In the Book of Deuteronomy' the
Bill of Divorce is also mentioned incidentally as
an established institution well known among the
people.
The Bill of Divorce Peculiarly a Jewish
Form of Separation. — The giving of a Bill of
Divorce to the wife was a custom peculiar to the
Hebrews, and the heathen nations round about
the Jews did not give Bills of Divorce to their
wives when they sent them away.*
Rabbi Yohanan (199-279 C. E.) states that the
heathen gave no Bill of Divorce when they sent
away their wives ; they simply divorced each other
by separating without formality.*
The Jewish woman who was divorced was not
recognized as such by any change in her appear-
ance, but established the fact by the production of
her Get (Bill of Divorce) ; the heathen woman,
however, was, according to Rabbi Huna, recog-
nized as divorced when she appeared on the street
with her head uncovered f for the married heathen
woman never appeared uncovered except when she
left the manus of her husband.®
Rabbi Aha'' call? attention to the fact that in
^ Isaiah I, i.
^ Deuteronomy xxiv, 1-4.
^ Talmud Yerushalmi Qiddushin sub Mishnah i, i (58 c) ;
Yalkut Shimeoni Malachi, Sec. 589.
* Talmud Yerushalmi, Ibid.
^ Talmud Babli Sanhedrin 58 b.
* Maimonides' Treatise Melakhim ix, 8.
^ Talmud Yerushalmi Qiddushin sub Mishnah i, i (58 c).
136 THE JEWISH LAW OF DIVORCE.
the Book of the Prophecy of Malachi the Deity is
always spoken of as Yahveli and Yahveh CJebliaoth
(Lord of Hosts) except in one passage,^ where his
name is mentioned in connection with divorce;
there he is called Yahveh Eloh^ Yisrael (the Lord
God of Israel) ; and the Rabbi concludes that this
is because the heathen nations do not have the
formality of the Bill of Divorce, which is a pecu-
liar custom of the Hebrews.^
I have not been able to ascertain whether the an-
cient Babylonians and Persians, among whom the
Jews dwelt, made use of a written Bill of Divorce;
the ancient Arabians, as well as the Greeks and
Romans, with all of whom the Jews had close rela-
tions, had no Bill of Divorce.
Arabian Form of Divorce. — Among those an-
cient Arabian tribes that lived under a system in
which kinship was traced through the females, the
husband did not bring his wife to live with him,
but went to live with her and her kin. In divorc-
ing her, he did not send her away, for she was at
home and he was the stranger. He used a formula
which indicated that he left her and went back to
his own folk, saying: ** Begone! I will no longer
drive thy flocks to the pasture."^
This form of divorce was unlawful among the
Hebrews. The Rabbis declared it void, and pointed
out the essential difference between the principles of
the Hebrew and the heathen marriage and divorce.
^ Malachi ii, 16.
'^ Midrash Rabba Bereshith, Cap. xviii.
^ W. Robertson Smith, " Kinship and Marriage in Early
Arabia," p. 94.
THE BILL OF DIVORCE. I37
Mar Samuel expresses it as follows : " When an
Israelite marries, he gives his bride a piece of
silver or some other object, and uses some such
formula as, 'thou art sanctified unto me,' 'thou
art betrothed unto me,' or 'thou art a wife unto
me ; ' and if he says, ' I am thy husband,' or ' I am
thy betrothed,' she is not then betrothed to him.
" Likewise, in divorcing his wife, he gives her
the Get (Bill of Divorce), saying, 'Thou art sent
away,' ' thou art divorced,' or ' thou art allowed to
any man.' If, however, he says, 'I am not thy
husband,' or ' I am not thy betrothed,' this is no
valid divorce, because at Jewish law the husband
takes a wife and does not give himself to her ; he
sends her away, but does not withdraw himself
from her."^
Among the Bedouins the common formula of
divorce was : " She was my slipper and I cast her
off.'" Another form of divorce among the early
Arabs was the formula : " Thou art to me as the
back of my mother."* This was the most solemn
form known to them. In the eye of the law, the
wife who was thus divorced became the mother of
her former husband, and, like his own mother, was
forever thereafter prohibited from remarrying him
or any of his kinsmen who were within the degrees
of consanguinity or affinity which would have pre-
vented them from marrying his true mother.
Mohammed put an end to the fictitious relation-
^ Talmud Babli Qiddushin 5 b.
* Burckhart, "Bedouins," i, 113.
^ W. Robertson Smith, ** Kinship and Marriage in Early
Arabia," p. 164.
9
138 THE JEWISH LAW OF DIVORCE.
ship thus created. " God hath not . . . made your
wives (some of whom ye divorce, regarding them
thereafter as your mothers) your true mothers"
. . . . "this is your saying in your mouths;
but God speaketh the truth, and he directeth the
right way."^ But Mohammed expressly declared
his own wives to be inviolate, saying: "The
prophet is nigher unto the true believers than their
own souls ; and his wives are their mothers^ . . .
" It is not fit for you to give any uneasiness to the
prophet of God, or to marry his wives after him
forever.'*^ It likewise appears that the divorced
wife of a Jewish king was not allowed to re-
marry.*
Form of Divorce among the Greeks and
Romans. — Among the Greeks as well as the Ro-
mans either the husband or the wife could divorce
the other. Technically the divorce of the wife by
her husband was '' dwonofinrj'' (sending away) and
the divorce of the husband by the wife "drrdXct^is
(leaving). The woman could not send away her
husband because she had been brought into his
house from which she could not, of course, eject
him, but she could leave his house and go back to
her own kin.* The free marriage could be easily
dissolved by either party. "Farewell," says
Alcmene to Jupiter, whom she supposes to be her
husband Amphitryon, "take your property, return
^ Koran (Sale's translation), Siira 33.
« Koran, Ibid.
' Talmud Yerushalmi Sanhedrin sub Mishnah ii, 3 (20 a).
^ Selden, " De jure Naturali et Gentium juxta disciplinam
Ebraeorum," Book v, Chap. 7.
THE BILL OF DIVORCE. 1 39
mine to me."^ This was the customary formula,
"tuas res tibi habeto,"' "ra crevar^s wpaTTc* and
was very like the old formula in use among the
Hebrews. "T'le Khethubekh ugeY"* "Take thy
dowry and go." The divorce was usually accom-
panied by some act indicative of the separation,
such as giving back the dowry, taking away the
keys from the wife and the like.
The religious marriage by confarreatio was not
so easily dissolved, and could only be destroyed by
a contrarius actus, namely diffareatio, " The hus-
band and wife who wished to separate appeared for
the last time before the common hearth ; a priest
and witnesses were present. As on the day of
marriage, a cake of wheat en flour was presented to
the husband and wife. But instead of sharing it
between them they rejected it. Then instead of
prayers, they pronounced formulas of a strange,
severe, spiteful, frightful character, a sort of male-
diction by which the wife renounced the worship
and gods of her husband. From that moment the
religious bond was broken. The community of
worship having ceased, every other common interest
ceased to exist and the marriage was dissolved."*
The Bill of Divorce was not introduced at Rome
until the reign of Augustus (27 B.C.E. to 14 C.E.),*
or, according to another authority, until the reign of
* Plautus, " Amphitryon," Act iii, Sc. ii.
' Digest, Book xxiv, Title ii, Fragment ii, Sec. i.
' Selden, ** Uxor Ebraica,** iii, 27.
* Talmud Babli Kethuboth 82 b.
* De Coulanges, " The Ancient City," p. 60.
* Hunter, " Roman Law," Ed. 1876, p. 510.
140 THE JEWISH LAW OF DIVORCE.
Diocletian (284-305 C.E.)^ The latter seems to be
the better opinion, and corresponds with an inter-
esting fact derived from Jewish sources. Among
the edicts of the Emperor Hadrian was one for-
bidding the granting of Bills of Divorce by Jewish
men to their wives. This was one of the measures
used to utterly destroy the last remnants of Jewish
life and manners, after the rebellion under Bar
Kokhba." It is unlikely that the Roman authori-
ties would have considered the Bill of Divorce a
Jewish institution like the Sabbath and Circum-
cision, if it had been in use also among the Romans.
It is probable therefore that is was not introduced
at Rome until the reign of Diocletian,* about 150
years after Hadrian.
This recognition of the Bill of Divorce as an
institution peculiar to the Hebrews is furthermore
emphasized by the decision of the Rabbis that a
Bill of Divorce granted to the wife upon her appeal
to a non-Jewish court was invalid.*
The principle governing the legal relations of
Jews and non-Jews is summed up in the dictum of
Mar Samuel: ^^Dina d'malkhuthe dina'' (the law
of the kingdom is the law).^ In matters affecting
their intercourse with the non-Jewish people
among whom they lived, the Jews gladly submitted
^ Mackeldey " Roman Law," (Dropsie's Edition), Sec. 577,
note 7.
2 Graetz's " History of the Jews," Vol. II, p. 422.
* See also Rabbinowicz, " Legislation Civile du Thalmud,"
Vol. I, Introduction, p. 33, etc.
* Mishnah Gittin, i, 5.
* Talmud Babli Baba Qama 113 a.
THE BILL OF DIVORCE. I4I
to the lawfully constituted authorities, obeying the
law of the land and demanding its protection. But
religious or quasi-religious matters were determin-
able only by their own Jewish tribunals, who were
learned in the Jewish law. All contracts, or instru-
ments affecting legal rights which were common
to Jews and non-Jews and were prepared in the
non-Jewish courts, as well as all decrees made by
their authority, were accepted as binding by all
Jewish tribunals, and the Jewish law gave them
full faith and credit and acknowledged their obli-
gation. But Bills of Divorce, being peculiar to the
Jews, were governed only by Jewish law, and the
Rabbis maintained their independence in such
matters by declaring the Bill of Divorce issuing
out of the Court of the Gentiles to be void.^
In the seventh century C.E., when Jewish women
sought to obtain Bills of Divorce from their hus-
bands in the Mohammedan courts, the Rabbis
declared them null and void, and for the purpose of
putting an end to this practice without coming into
conflict with the secular authorities, they gave cer-
tain new rights and privileges to the Jewish women
who appeared as plaintiffs, thereby making the
appeals to the Mohammedan courts unnecessary.
^ Talmud Babli Gittin 10 b.
' Graetz's " History of the Jews," American Edition, Vol.
Ill, p. 92, supra p. 59.
CHAPTER XII.
PREPARING THE BILL OF DIVORCE (GET).
Divorce Procedure, at first Simple, Became Complex — Hus-
band Must Give the Order to Prepare the Get with the
Intention of Divorcing His Wife— What is Deemed
a Sufiicient Order to the Scribe and Witnesses — Excep-
tions in Favor of Persons in Situation of Danger, etc. —
Uses of the Bill of Divorce— Divorce by a Mute Hus-
band — Writing the Get— The Scribe — Fees of the Scribe
—The Writing Materials.
It has been suggested, in another place, that the
complicated system of procedure among the Jews
acted as a check on the theoretically unrestricted
right of the husband to divorce his wife at his
pleasure. Divorce procedure, at first simple and
finally complex, has followed the natural and com-
mon course of all systems of law and legal prac-
tice. The refinements of Pleading at Common Law,
the involved phraseology and technical prolixity of
a deed of conveyance are instances in point. Cau-
tious lawyers noted the ambiguities and resultant
disputes due to loosely drawn instruments and to
insure against these, gradually evolved complex
technical forms. By following these forms exact-
ness of meaning, as established by the legal use
of terms, is secured, and a large amount of error
and dispute is eliminated from the transactions. It
(142)
PREPARING THE BILL OF DIVORCE. I43
is true that lawyers are required to perform the
service of preparing the proper papers, and the
layman who attempts to do so for himself, is apt to
fall into a sea of trouble. It was not the purpose
of the lawyers and judges, in gradually arriving at
the modem forms, to make business for the pro-
fession and to throw legal matters in the hands of
a class of specially trained men, although that was
undoubtedly one of the results of their work. By
their technicalities they sought exactness and the
avoidance of dispute and litigation.
The rules of Divorce Procedure at Jewish law
promoted exactness, minimized mistake and mis-
understanding, and settled with reasonable cer-
tainty the legal status and the mutual obligations
and rights of the parties. The result of this system
was to make the granting of a Bill of Divorce too
difficult for any layman to undertake, and the
matter being thrown into the hands of the Judge
or Rabbi, the difficulty of divorce was enhanced,
because the weight of Rabbinical persuasive power
was thrown against it. Men were cautioned to
beware of attempting to give Bills of Divorce un-
less they were well versed in the law, lest they
cause trouble and disgrace^ and some Rabbis were
of the opinion that all Bills of Divorce prepared
by laymen ought to be declared null and void.
Ordering the Preparation and Delivery
OF THE Get. — The first step in the Procedure was
the order given by the husband to the proper
persons to write and deliver the Get (Bill of
^ Talmud Babli Qiddushin 6 a.
t44 THE JEWISH LAW OF DIVORCE.
Divorce). They thereby became his agents, and
according to the common principle of law they
could not, by their acts, exceed the power granted
them. If they were told to write the Get they
could do this and nothing more ; if they were told
to write and deliver it, they might act accordingly.
In a case where a man had given the order,
" write a Get for my wife," it was held that a de-
livery to her of the instrument was unauthorized
and void ; but that if from subsequent events it
appeared that it was truly the husband's intention
to divorce her, his intention could be carried out
despite this technical irregularity.^ The husband
having given the order to write the Get, went up
to the roof of his house for the purpose of attend-
ing to some matter there, and falling over the
edge, was killed. The Get having been written
and delivered to the wife, the question arose
whether the delivery was lawful and the woman
divorced from him, or whether, the delivery of the
Get being unauthorized, she was his widow. The
determination of this question affected the prop-
erty rights of the woman in her husband's estate ;
it also settled the question of the Levirate mar-
riage, for under the Biblical law' the widow
having no children was obliged to marry her de-
ceased husband's brother, and could only be
released from this obligation by the performance
of the ceremony of Hali^a." This case having
^ Mishnah Gittin vi, 6.
' Deuteronomy xxv, 5-10.
' So called from the ceremony of drawing o£E the shoe.
See Deuteronomy xxv, 9.
1>REPARING THE BILL OF DIVORCE. I4S
been brought before Rabbi Simon ben Gamaliel
(died about 169 C. E.)i he decided that the ques-
tion of the husband's intention not being deter-
mined by his order, was to be determined by the
manner in which the accident occurred. If he
fell off the roof accidentally, as for instance, if a
gust of wind blew him over, it could not be pre-
sumed that he had intended to divorce her when
he said "write a Get," and she will be deemed
his widow; but if he threw himself off the roof
with suicidal intent, it must be presumed that he
had ordered the Get for his wife in contemplation
of his death, and that the words used by him in
giving the order must be liberally construed, be-
cause in his agitation he may have forgotten to
fully express his purpose in proper words.^
If the husband in the above case, instead of
merely saying, "write a Get for my wife," had said
" write a Get and give it to my wife," or " write a
letter of divorce and give it to her," or " divorce
her," or had made use of some such expression to
indicate that it was his desire that the Get should
not merely be written, but should also be delivered,
there would have been no doubt as to the decision
that she was divorced.' If he had merely used
such expressions as " release her," provide for her,"
" do unto her as is customary," or " do unto her as
is proper," it appears that, under the construction
given by the Rabbis to these terms, they would
constitute no lawful warrant for a scribe and the
^ Mishnah Gittin vi, 6.
' Mishnah Gittin vi, 5.
146 THE JEWISH LAW OF DIVORCE.
witnesses to attend to the writing and delivery of
the Get.*
To this rule there were several exceptions made
in favor of persons who, while in situations of
great danger, did not express their intention with
technical exactness. In addition to the case above
mentioned, the Mishnah cites the case of one who,
being led to execution, ordered a Get to be written,
without adding that it should be delivered to his
wife. It was, nevertheless, held to be valid, upon
the presumption that his agitation, in face of death,
caused him to forget to add the words.' This
principle, that the strict law will be relaxed in favor
of one who makes a statement, or performs an act,
in contemplation of death, was a very ancient
one, and in the report of the above case, the
Mishnah indicates its antiquity by stating that it
was the rule " in the beginning." Later on, the
principle was extended to cover the case of one
who was about to go on a voyage beyond the sea,
or on a journey in a caravan through the desert.
The reason for the rule in these cases differed,
however, from that of the case of the man led to
execution. At Jewish law, absence gave no war-
rant for presumption of death ; if, perchance, the
husband, having gone abroad, should die, and no
direct evidence of his death be obtainable, his wife
could never remarry, and would be placed in the
anomalous position of being a wife and a widow at
the same time. She was known as Eguna, or " the
^ Mishnah Gittin vi, 5.
« Ibid.
PREPARING THE BILL OF DIVORCE. I47
chained one," and the law was mercifully relaxed
in order to prevent so unfortunate a condition of
the wife.
Still later, the principle was extended to include
the case of one who is dangerously ill ; the reason
in this case being similar to that assigned in the
case of the man who is being led to execution/
If one, who had fallen into a pit, cried out, call-
ing upon any one within sound of his voice to write
a Get for his wife, but not adding that it should
also be delivered to her, it would, nevertheless,
upon the principle above cited, be valid if written
and delivered.'
From the citation of these cases, it will be seen
that the Bill of Divorce could be used, and very
probably was often used, for the purpose of saving
the wife from being an Eguna, or for the purpose of
saving her from the Levirate marriage, whereby
she would have been compelled, if childless, to
marry her husband's brother, if he, the brother, so
desired. The husband in conspectu mortis deliv-
ered or ordered the delivery of the Get to his
wife, whereby she became a free woman and was
not amenable to the law of the Yebama.*
It was essential that the husband himself should
order the Get to be written and delivered to the
wife.* In the case of a man who had been stricken
^ Mishnah Gittin vi, 5 ; Mishnah Tebul Yom iv, 5.
* Mishnah Gittin vi, 6.
^ Yebama was the technical name of the widow who was
bound by the law (Deuteronomy xxv., 5-10) to marry her de-
ceased husband's brother; the brother was known as the
Yabam.
^ Mishnah Gittin vii, 2.
148 THE JEWISH LAW OF DIVORCE.
dumb, and who, therefore, could not order the
document to be prepared, it was permissible to
write a Get and deliver it upon his order, given by
signs or gestures. The deaf-mute could not divorce
at all.*
For the purpose of arriving at the intention of
the mute, he was asked whether he desired the
Get to be prepared; he assented by nodding his
head. Thereupon he was tested by a series of
questions, three times repeated, for the purpose of
determining whether he fully understood what was
to be done.^
An ancient formula for thus determining the
mental soundness of the mute is given in the Tal-
mud. The witnesses asked him, " Shall we write
a Get for your wife.?" He nods affirmatively.
" Shall we direct it to your mother .?" He nods his
head negatively. " Shall we direct it to your wife ?*'
He nods his head affirmatively. "Shall we direct
it to your sister V* He nods his head negatively,
etc.*
Writing the Get. — The Scribe. — All persons
were qualified to act as scribes in the preparation
of the Get, even those who were otherwise legally
disqualified, such as a deaf-mute, an idiot or an
infant. These, however, could perform the duty of
scribes only under the supervision of a competent
person.* The act of writing was merely a ministe-
* Supra, page 51.
' Mishnah Gittin vii, i.
^ Talmud Yerushalmi sub Mishnah Gittin vii, i (48 c. d.).
* Talmud Babli Gittin 23 a.
PREPARING THE BILL OF DIVORCE. I49
rial duty, and, therefore, could be performed by any
one, under the direction of those, whose duty it was
to take care that the Get be written in proper
form according to law.* The woman who was
about to be divorced could write her own Get, and
after giving it to her husband and having it re-
delivered to her by him, she was divorced. The
mere writing of the Get was a matter of minor
importance, the validity of the Get being estab-
lished by the subscribing witnesses.*
Bills of Divorce which were prepared in the
courts of the heathen were invalid, for reasons
above given.' This discrimination against non-
Jewish courts extended only to the cases of Bills
of Divorce and Bills of Manumission of slaves.
All other documents prepared in the courts of the
Gentiles were received at Jewish law as though
they had been prepared in a Jewish court. The
rules of law applicable to Bills of Manumission are
similar to those applicable to Bills of Divorce in
three classes of cases — when the documents were
prepared in a non-Jewish court, when they were
witnessed by a Samaritan (Kuthi), and when they
were delivered.*
If it be borne in mind that originally both the
slave and the wife were members of the husband's
familia, and equally subject to the patria potestasy
the reason for the close analogy in procedure be-
^ Mishnah Gittinii, 5 ; Mishnah Eduyoth ii, 3.
« Ibid.
' Supra, page 59.
* Talmud Babli Gittin 9 a.
150 THE JEWISH LAW OF DIVORCE.
tween the two cases will become apparent. The
master, by manumitting his slave or divorcing his
wife, rendered them equally sui juris, and thereby
forever removed them from under his power and
control. Thus the original similarity in the status
of the slave and the wife left its impress on the
law centuries thereafter, and we have in the case
above cited an instance where they are classed
together for apparently no other reason than this
ancient similarity. The courts of the heathen
could not grant a bill of divorce, because this was
a quasi-religious institution, and one, therefore,
over which a non-Jewish court could exercise no
jurisdiction. This reason cannot be assigned for
the law that a non-Jewish court could not prepare
a valid bill of manumission of a slave, more espe-
cially since all the Rabbis agreed that in all other
cases the documents prepared by the non-Jewish
courts were absolutely valid and binding, although
they were written and attested by non-Jews.^
We are, therefore, forced to the conclusion that
the ancient similarity in the status of wife and
slave was the reason for the later analogy be-
tween the Bill of Divorce and the Bill of Manu-
mission.
There was at least one doctor of high authority,
Rabbi Simon ben Ybhai, who was of the opinion
that even bills of divorce and of manumission pre-
pared in the courts of the heathen are valid, and
that their validity could only be brought into
^ Mishnah Gittin i, 4.
PREPARING THE BILL OF DIVORCE. I5I
question if the person preparing them was an
It was essential that the scribe should receive the
order directly from the husband. In a case where
the husband was asked, " Shall we write a Get to
your wife.?" and assented, and thereupon the per-
son who had received the order from him instructed
third persons to write and witness the Get, it was
declared to be void, and although this Get was
given to the husband by the scribe, and he himself
delivered it to his wife, it was, nevertheless, invalid,
because it was a rule of law that the husband himself
must give the order to the scribe to write it and to
the witnesses to attest.^ The person whom the
husband constituted his agent could not delegate his
power to another ; but Rabbi Hanina, of the town
of Ono, declared that if the husband gave his direc-
tions to three men to give the Get to his wife, they
could order another to write it ; because, being
three, they were looked upon as a Beth Din,*
or court, and as such had the authority to appoint
a scribe to prepare documents to which they after-
wards gave validity.*
Although this decision was given upon the
^ Mishnah Gittin i, 5. The Mishnah uses the term " He-
diot," a layman. Rabbinowicz ("Leg. Civ. du Thalmud,"
Vol. I, p. 333) takes it to mean an illiterate person.
* Mishnah Gittin vii, i.
' A court of law for the trial of civil suits consisted of three
members, one chosen by the plaintiff, one by the defendant,
and the third by these two (Mishnah Sanhedrin iii, i), prac-
tically a court of arbitration.
* Mishnah Gittin vi, 7.
152 THE JEWISH LAW OF DIVORCE.
authority of so distinguished a doctor as Rabbi
Aqiba/ it did not become law. Against it the
Mishnah cites the opinion of Rabbi Yos^, who said
with much emphasis : " We have received a tradi-
tion that even if a man directs the great Sanhedrin
at Jerusalem (the highest tribunal of the Jewish
state) to give a Get to his wife, they cannot dele-
gate the office of preparing the Get to another ;
and if it be/* adds Rabbi Yos6, in rather a peppery
manner, " that the Sanhedrin do not know how to
write it (if they are not skilled scribes), let them
learn, and then write and deliver the Get accord-
ingly."^
As stated above, the scribe had to be specially
requested, or ordered by the husband, to write the
Get, and if some one other than the husband
gave the order, it was null and void.
If the husband instructed more than one to pre-
pare the Get, all of those asked had to unite, and
^ The Mishnah at this place states that Rabbi Hanina
brought this law from prison. Rashi in his Commentary
states that Rabbi Aqiba is the authority for it, he having
given it to Rabbi Hanina during his incarceration. Aqiba
had taken a prominent part in the last heroic attempt made
by the Jews, during the reign of the Emperor Hadrian, to
throw off the Roman yoke (about 135 C. E.), and after the
defeat of the Jewish arms, Aqiba and many others of the
most distinguished leaders were imprisoned and executed
(Graetz's " History of the Jews," Vol. II, p. 428). While he
was in prison, many of his disciples, in disguise and in danger
of their lives, visited him for the purpose of consulting his
opinion on questions of law (Talmud Yerushalmi Yebamoth
sub Mishnah xii, 5 (12 d).
' Mishnah Gittin vi, 7.
PREPARING THE BILL OF DIVORCE. 1 53
a mere majority did not suffice. If, for instance,
a man said to ten people, " Write a Get and give it
to my wife," one of them wrote it and two signed
as attesting witnesses, in the presence of all of
them ; but if the husband specifically ordered all of
them to write it, they were all obliged to sign the
document as attesting witnesses. Hence in the
case where all were requested to sign and one died
before signing, the Get was declared void/
Fees of the Scribe. — It was the rule of the
Mishnah that the husband pay the fee of the scribe
for preparing the Bill of Divorce.* The theory
being, that the divorce was an act done to the
advantage of the husband and at his special re-
quest. On the same principle, the borrower paid
the scribe's fee for the preparation of the doc-
ument, showing his indebtedness ; so also, the ten-
ant paid the fee for preparing the lease, and the
purchaser for preparing a deed of sale.
In each of the above cases, the party to whose
advantage the transaction was presumed to be
made, was charged with the payment of the scribe's
fee. But in the course of the development of the
law in Babylonia, the theory in this particular in-
stance underwent a complete change. It was then
decided' that the fees of the scribe were to be paid
by the wife.
This was a Rabbinical innovation for the purpose
of preventing the husband from setting up the
^ Mishnah Gittin vi, 7.
' Mishnah Baba Bathra x, 3.
' Talmud Babli Baba Bathra 168 a.
10
154 THE JEWISH LAW OF DIVORCE.
question of expense as an excuse for the non-de-
livery of the Get. Presumably, this innovation
was first introduced in cases where the husband
was about to desert his wife, and where it was, no
doubt, to her advantage that the divorce should be
granted. Later on the distinction between the
respective positions of the parties was lost and it
was made a rule that the wife should pay the fees
of the scribe in all cases.^
The Writing Materials. — Much space is de-
voted in the Talmud to discussions about the
proper materials to be used in the preparation of a
Get ; some of them occasioned by questions of
practical importance which were brought before
the Rabbis for decision, and others merely the
result of their love of theoretical speculation. The
sum and substance of all these discussions is sum-
marized in one sentence of the Mishnah. The Get
may be written on any material whatever and with
any substance which leaves a permanent mark.'
Rabbi Yos6, the Galilean, was of the opinion
that a Get could not be written on anything ani-
mate or edible.' This rather remarkable dictum
was the result of a curious discussion upon the
validity of a Get written on the horn of a cow.
The question of the validity of the Get written on
the hand of a slave also arose.* Rabbi Yehudah
ben Bathyra, of Babylonia, was of the opinion that
^ Maimonides' Treatise Gerushin ii, 4.
' Mishnah Gittin ii, 3.
» Ibid.
* The reader will be reminded of Mr. Meeson^s Will, in
Mr. Rider Haggard^s novel of that title.
PREPARING THE BILL OF DIVORCE. 1 55
a Get could not be written on papyrus which had
been previously used and the writing on which had
been erased (palimpsest), nor on unfinished vellum,
because in such cases forgery would be easy. But
the general opinion was that it made no difference
on what material the Get was written, provided
that it was properly written and delivered to the
wife in the presence of witnesses.*
The Get could not be written on anything
attached to the soil, unless the article had been
previously severed from the ground, for the reason
that it would be necessary, after the Get had been
written, to cut it off from the ground, before deliv-
ering it to the wife, and this would be in defiance
of the law that nothing must be done to the doc-
ument between the writing and delivery.'
^ Mishnah Gittin ii, 4.
* Ibid.
CHAPTER XIII. '
THE FORM OF THE BILL OF DIVORCE (GET) AND
THE GET "ON CONDITION."
Maimonides' Form — Blank Forms — The Folded Get — The
Essentials of a Get — Date — Dies juridici — Names —
Words of Separation— Clauses in Restraint of Marriage
—The Get ** On Condition "—Origin of the Right of the
Husband to Annex Conditions to his Bill of Divorce —
Wife Could Accept or Reject— Condition Must be
Strictly Complied With — On Condition of the Husband's
Death— On Condition of his Failure to Return.
From the scattered references in the Mishnah it
is possible to re-construct, with fair accuracy, the.
ancient form of the Get, although it cannot be
determined when this particular form came into
use. The original form of the Get was very prob-
ably much more simple than the one in use at the
end of the period of the Mishnah, and the later and
more complicated form was gradually evolved under
the decision of the judges in particular cases, to
meet the new requirements of the law. Maimo-
nides^ gives the following form, which in his day
(at the end of the twelfth century of the present
era) was already known as a very ancient form. It
corresponds very largely to the hypothetical form
which might be reconstructed from the fragmen-
^ Treatise Gerushin iv, 12.
(156)
FORM OF BILL OF DIVORCE. 157
tary references of the Mishnah ; with some slight
changes it has been in uninterrupted use for about
two thousand years, being used to this very day/
" On the day of the week and day
of the month of in the year since
the creation of the world* (or of the era of the
Seleucidae),* the era according to which we are
accustomed to reckon in this place, to wit, the town
of * do I the son of ^ of the
town of * (and by whatever other name or
surname F or my father may be known, and my
town and his town)® thus determine, being of sound
mind® and under no constraint ;^^ and I do release
and send away and put aside" thee
daughter of "of the town of ^*
(and by whatever other name or surname thou** and
^ In those countries where divorce of Jewish couples is
governed by the law of the land, it is considered necessary
^or them to go through the ceremony of a Jewish divorce, in
addition to the ordinary legal procedure ; likewise a religious
marriage ceremony, more judaico, is usually performed after
the civil marriage.
^ Mishnah Gittin ix, 4 ; viii, 5 ; iii, 2.
'Id. viii, 5 ; Mishnah Yadayim iv, 8.
* Mishnah Gittin viii, 5.
^ Id. ix, 5 ; iii, 2.
* Id. viii, 5.
Md. ix, 8; Mishnah Yebamoth iii, 8.
^ Mishnah Gittin viii, 5 ; iv, 2.
' Mishnah Yebamoth xiv, i.
10 Ibid.
^^ Mishnah Gittin ix, 3.
** Id. ix, 5 ; iii, 2.
^^ Id. viii, 5.
" Id. ix, 8.
IS8 THE JEWISH LAW OF DIVORCE.
thy father are known, and thy town and his town),'
who hast been my wife from time past hitherto ; and
hereby I do release thee and send thee away and
put thee aside' that thou mayest have permission
and control over thyself to go to be married to any
man whom thou desirest,* and no man shall hinder
thee (in my name) from this day forever. And
thou art permitted (to be married) to any man.*
And these presents shall be unto thee from me a
bill of dismissal, a document of release and a letter
of freedom,* according to the law of Moses and
Israel.
the son of a witness
the son of a witness." *
Blank Forms. — During the period of the Mish-
nah blank forms were used by the scribes or
notaries in the preparation of all sorts of legal
documents including bills of divorce. This custom
was opposed by Rabbi Yehudah (150-210 C.E.), the
compiler of the Mishnah, and by Rabbi Eliezer, on
the ground that the laws of divorce must be strictly
interpreted, and inasmuch as the law provides that
the husband shall write her a bill of divorce, it is
necessary that the document should be specially
prepared at or immediately before the time when
it is intended to be used as an instrument of di-
vorce, and it is therefore unlawful to prepare a
^ Mishnah Gittin viii, 5 ; iv, 2.
^ Id. ix, 3.
» Ibid.
* Id. ix, I, 3.
^ Id. ix, 3.
• Id. ix, 4, 7, 8.
FORM OF BILL OF DIVORCE. 159
portion of the document beforehand when it is not
yet known for whom it will be used.^ In spite of
these opinions, however, the use of blank forms was
continued.
The Folded Get. — A curious form of the Bill
of Divorce was known as the Folded Get, which
was prepared in the following manner :
Two or three lines were written, then the parch-
ment was folded and fastened, so that the two
lines written were entirely covered over, and a wit-
ness signed on the back of the fold ; then two
more lines were written, and again the parchment
was folded and fastened, and this fold attested by
another witness. So that it became a maxim that
the folded Get must have as many witnesses as it
has folds, and if one fold is blank, the Get was
called a "bald Get," and was void.'
The reason and origin of this curious form seem
to have been forgotten at a very early period, and
the Talmudists exercised their ingenuity in in-
venting reasons to account for it.
One of the most plausible was that which re-
ceived the sanction of two great Talmudical com-
mentators, Rashi (1040-110S C. E.) and Rabbi
Obadiah, of Bartinora (1470-1520 C. E.). Accord-
ing to this view, the folded Get was invented to
meet the case of priests who, in a fit of anger, di-
vorced their wives; the cumbrous formality delayed
and protracted the procedure, and thereby gave
^ Mishnah Gittin iii, 2.
' Mishnah Gittin viii, 9, 10.
l60 THE JEWISH LAW OF DIVORCE.
the parties an opportunity for reconciliation.^ The
priest could not, like the ordinary Israelite, remarry
his divorced wife, for the Biblical law provided that
a priest should not marry a divorced woman, and
this provision was held to include his own divorced
wife.*
Dr. J. M. Rabbinowicz suggests* that the folded
Get probably was a Persian custom adopted by the
Jews during the Captivity in Babylon. But there
is some evidence in the Book of Jeremiah of an
analogous custom well known and established in
Judea. In his purchase of the field of Hanam'el,
Jeremiah prepared two deeds, one of which was
sealed, i. ^., rolled up, fastened and then sealed, and
the other left open ; the former to be referred to
in case the latter had been lost or tampered with.*
It is probable, therefore, that the sealed or folded
Get was used both in Babylon and Judea, and that
the difference in procedure between the execution
of the deed of Jeremiah and the folding-up and
attestation of the " Folded Get " was the result of
time and local custom. It appears that there was
some discussion whether a plain Get was valid if
the witnesses signed on the back, and whether a
folded Get was valid if the witnesses signed within.
The patriarch Rabbi Simon ben Gamaliel * decided
that this question depended on the custom of the
1 Talmud Babli Baba Bathra i6o b.
* Leviticus xxi, 7.
* Rabbinowicz, " Legislation Civile du Thalmud," Vol. IV,
p. 368.
* Jeremiah xxxii, 10-14.
* Died about 170 C. E.
FORM OF BILL OF DIVORCE. l6l
land, /. ^., the local custom and law of the country
in which the Jews dwelt/
The essential features of the Get were the date,
the names of the parties, proper words indicating
the complete separation of the husband and wife,
and the signatures of the witnesses. The language
commonly used in Bills of Divorce was Aramaic,
although the use of Hebrew, Greek or other lan-
guages was not uncommon.* It was improper, of
course, to introduce irrelevant matter into the body
of the Get,* although alterations or interlineations
could be made, and would not affect the validity of
the instrument, if noted at the end and before the
witnesses signed their names.*
Date. — It was, at one time, the custom to date
the Bill of Divorce from the reign of Alexander of
Macedon ; but as the scribes during the Middle
Ages were not well versed in Greek chronology, it
became the established custom to date the docu-
ments from the year of the creation of the world,
according to the traditional calculation,^ and to add
the date according to the era current in the place
where it was written, out of respect for the secular
authorities and " on account of the peace of the
Government."® It seems that in some instances
^ Mishnah Baba Bathra x, i. The term " Get " is here
used in its simple sense of " document," including all written
acts as well as Bills of Divorce.
2 Mishnah Gittin ix, 8.
3 Talmud Babli Baba Bathra 176 a.
* Maimonides' Treatise Gerushin iv, 15.
® Hagaoth Maimuni to Gerushin i, 27.
^ Maimonides' Treatise Gerushin i, 27.
1 62 THE JEWISH LAW OF DiVORCE.
sentiment prompted the dating of Bills of Divorce
according to the reign of extinct Median or Greek
dynasties. These documents were held to be void,
as they tended to irritate the public authorities and
were subversive of the public peace.^ For the
same reason documents which were dated from the
destruction of the Temple at Jerusalem were de-
clared void, as tending no doubt to unduly exag-
gerate the strained relations between the Roman
conquerors and the conquered Jews.*
Before the destruction of the Temple, while the
religious conflicts between the Sadducees and Phar-
isees were raging, one of the Sadducees sarcastically
charged the Pharisees with a lack of respect for the
memory of the great Lawgiver, Moses, because they
placed the name of the heathen sovereign and
Moses in the same document ; the former being
introduced at the beginning of the document (in
the date) and the latter in the very last phrase
thereof. The Pharisees justified their custom by
pointing out, with equal irony, that if it was an
offense to couple the name of the heathen sover-
eign and Moses, then Moses himself was guilty
of a greater offense in coupling the name of the
Egyptian Pharaoh with the name of God, and even
giving the former precedence, as it is written,*
" And Pharaoh said. Who is the Lord that I should
obey his voice ? " *
^ Mishnah Gittin viii, 8.
^ Ibid.
' Exodus V, 2.
* Mishnah Yadayim iv, 8.
FORM OF BILL OF DIVORCE. 163
Dies Juridici. — A Get written on the Sabbath
day^ or on any of the festivals, or on the New
Year's Day, or the Day of Atonement,* was void,
if it was deliberately written in violation of the
law,* but if the scribe did not know that it was the
Sabbath or Holy day and innocently wrote the Get,
it was valid.* These were dies non juridici^ on
which all work was strictly prohibited by law,
the act of writing being especially mentioned as
a species of work. Although the middle days of
the Passover Festival and of the Festival of Tab-
ernacles, called Hoi Hammodd, were also dies non
juridiciy Bills of Divorce could be written on these
days.*
In cases where the date was omitted, a presump-
tion arose against the validity of the Get, and
shifted the burden of proof on the wife.® In strict
* Mishnah Shabbath xii, 3.
^Mishnah Moed Qaton iii, 6. Also Mishnah Meghillah,
' Maimonides' Treatise Gerushin iii, 19.
* Ibid.
* Talmud Yerushalmi Moed Qaton sub Mishnah iii, 3 (82 a).
On the " middle days " most of the ordinary affairs of life
were conducted and all works necessary to the public welfare
were attended to (Mishnah Moed Qaton i, 2). Marriages
were not allowed to take place during the Moed, and the rea-
son given therefore was, that the individual joy of the married
man would interfere with his duty to participate in the gen-
eral joy of the festival. In connection with the law allowing
women to prepare their ornaments on the Moed, it is interest-
ing to note this little touch. Rabbi Juda said : " The woman
must not apply paste to her face during the Moed, because it
temporarily disfigures her." (Mishnah Moed Qaton i, 7.)
* Mishnah Gittin ix, 4.
164 THE JEWISH LAW OF DIVORCE.
law, the writing and attestation of the Get had to
take place on the same day.^ The legal day of the
Hebrews began and ended at sunset. It was con-
sidered necessary that a legal act once begun
should be completed on the same day, except in
the trial of criminal cases, in which the contrary
rule obtained.
Names. — Rabban Gamaliel the Elder (about 40
C. E.) ordained that after the name and place of
residence of both parties the following phrase
should be added : *< And by what other name he or
she may be known."* It was customary to write
in the Get the name by which the parties were
best known, and even in cases where merely a nick-
name was written, it was declared to be valid, pro-
vided the person was well known by such name."
Words of Separation. — The essential words
of the Get indicating the absolute separation of
the husband and wife were, " Thou art permitted
unto any man," or, according to Rabbi Yehudah,
" Thou hast herewith from me a bill of dismissal,
a document of release and a letter of freedom, that
thou mayst go and be married to any man thou
mayst like." *
Clauses in Restraint of Marriage. — Any
attempt made by the husband to restrain the
divorced wife from freely entering into marriage
with any one whom she pleased rendered the Get
^ Mishnah Git tin ii, 2.
* Id. iv, 2.
» Id. ix, 8.
* Mishnah Gittin ix, 3.
FORM OF BILL OF DIVORCE. 165
null and void ; the divorce was absolutely a vinculo
matrimoniif and the wife had an unconditional
right to enter into a second marriage. Rabbi
Eliezer seemed to have been the only one of the
prominent Doctors of the law to maintain that the
husband could control the action of the wife after
she was divorced. He held a Get valid which
declared " Thou art free to marry any man except
A. B." But the opinion of all of the other sages
was against it.^ If the restriction extended only
to persons whom the wife could not legally marry,
as, for instance, if the husband wrote in the Get,
** Thou mayst marry any one except thy father, or
a slave," etc., it was treated as surplusage, and
did not affect the validity of the Get.^ But if the
restriction sought to prevent marriage with one
whose marriage with the divorced woman was
not void, although not favored by the law, as, for
instance, the marriage of the divorced woman to a
priest,* the Get was a nullity.*
Divorces Coupled with Conditions. — ^The
husband had not only the right to divorce his wife,
but he could couple the divorce with conditions,
upon the fulfilment of which its validity depended.
Nothing will illustrate more clearly the true
theory of the ancient law as to the position of the
husband than this right to couple the divorce with
conditions. The constitution of the patriarchal
^ Mishnah Gittin ix, i.
^ Id. ix, 2.
' Leviticus xxi, 7.
^ Mishnah Gittin ix, 2.
l66 THE JEWISH LAW OF DIVORCE.
family left the husband supreme in the household ;
he had absolute power and control over the mem-
bers of his little kingdom, and also could release
them from his sovereignty. He could manumit
his slave and divorce his wife whenever it pleased
him; and that he could exact the performance of
some act by them as a condition precedent to their
release from his power, is an inference that re-
quires no demonstration. Herein, therefore, is to
be found the origin of the custom respecting con-
ditions attached to divorces. Upon this ancient
theory of the law, based upon immemorial prac-
tice, and arising out of the conditions of the patri-
archal household, the entire later system of law
governing the domestic relations was established.
Unless this theory be kept in view constantly, the
study of the Jewish law of husband and wife, pa-
rent and child, and master and slave, will present
a chaos of rules and decisions without coherence
or system. By means of this theory, a synthetic
study of the law will bring all of the rules, opinions
and decisions into harmony and correlation.
The conditions that could be attached to the
divorce depended entirely upon the caprice of the
husband. Originally it is likely that the hus-
band could put away his wife and at the same time
forbid her to marry another, and thus taboo her to
all the world. There is no evidence that such
actually was the condition at any period within
historical time in the Jewish domestic law. But it
is a fair inference, from our knowledge of the
power of the patriarch over his family and house-
FORM OF BILL OF DIVORCE. 167
hold. It was shown above/ that an attempt by the
husband to restrain the wife from entering into
the marriage state with another was declared un-
lawful by the TanaYm. This certainly shows that
it must have been practised and considered lawful
before it was legally interdicted. And this seems
to be the only case in which the Rabbis declared a
condition annexed to the Get void. A second step
forward was made when the Rabbis declared that
it lay in the power of the woman to accept or reject
the Get, whenever the condition attached to it was
the performance of some act by her. If the hus-
band annexed a condition to the divorce providing
that it should not become absolute unless his
wife paid him two hundred pieces of money and
the woman accepted the Get, she became liable
for the payment of the amount named ; but if she
refused to fulfil the condition she was not di-
vorced.*
This privilege, to fulfil the condition if she
pleased, or to refuse to do so, was, in all cases where
the Get had conditions annexed, tantamount to
giving the woman the right to determine whether
or not she would be divorced. If there was no
condition attached to the Get, she was, under the
old law, divorced nolens volens.
The general rule required that conditions be
strictly fulfilled. Where the husband provided
that the wife should pay him a sum of money
within a certain period, in default of which pay-
^ Supra, p. 164.
^ Maimonides' Treatise Ishuth vi, 18.
l68 THE JEWISH LAW OF DIVORCE.
ment the Get should be declared void, payment
after the expiration of the time was too late/
Rabbi Simon ben Gamaliel seems to have been
inclined to interpret the conditions attached to a
Get in favor of the wife. In one case, at Sidon,
the condition was that the wife should give her
husband a certain cloak, for which he seemed to
have a special desire. The woman lost the cloak,
and it was held that she could fulfil the condition
by giving him its equivalent in money.* It was
contended that if the condition annexed to the Get
was, that the wife should serve her husband's
father for two years, and if the father died before
the expiration of the two years, the divorce was
null and void, because the condition was not
strictly fulfilled, the woman not having served for
two years. But Rabbi Simon ben Gamaliel was of
the opinion that the impossibility of fulfilling the
condition was not her fault, but was an act of God,
and that therefore the divorce was valid.*
Divorce on Condition of the Husband's
Failure to Return. — Another form of the
divorce on condition provided that the divorce
should become absolute in case the absent husband
did not return within a definite period, and if he
died while abroad during this time, the wife was
divorced. The use of this form arose in cases
where the husband went abroad or to sea, or on a
journey with a caravan through the desert. As
^Mishnah Gittin vii, 5.
* Ibid.
' Mishnah Gittin vii, 6.
FORM OF BILL OF DIVORCE. 169
the absence of the husband raised no legal pre-
sumption of death, his widow could never remarry
if he died while abroad, and no legal proof of his
death could be found. This case was met by a Get
on condition.* If he returned before the time had
elapsed, this was equivalent to a reconciliation, and
the Get was void ; but after the time had elapsed,
the Get became absolute and the woman was free.
It was decided in a case where the husband
going abroad left an order for a Get to be written
and delivered to his wife, on condition of his
absence for more than twelve months, that the Get
must be written and delivered to the wife after the
period specified, and that if it is written before the
expiration of the time and delivered to her it is
void, because the condition was not absolutely fifl-
filled.
Divorce on Condition of the Husband's
Death. — The husband could make his own death
the condition upon which the divorce became
valid ;* the happening of this event worked retro-
actively, and during the interval between the de-
livery of the Get and his death, the wife was,
according to Rabbi Yehudah, considered a married
woman in every respect, but, according to Rabbi
Yos6, one whose divorce is doubtful.* This pecu-
liar use of the Get on Condition seems likely to
have arisen out of the desire of the husband to
save his wife from the Levirate marriage.*
^ Mishnah Gittin vii, 8.
» Id. 3.
' Mishnah Gittin vii, 4.
* Talmud Babli Nedarim 27 a (Rashi).
II
170 THE JEWISH LAW OF DIVORCE.
According to the law, the death of the husband
without issue made his wife ipso facto the bride of
his brother, whose duty it was to marry her, or
release her through the ceremony of Haliga/ The
divorced woman was of course not subject to this
law. Where the brother-in-law was distasteful to
the husband or the wife, it would be quite natural
to make use of the Get on Condition, in order to
prevent him from having any claim upon the wife
after her husband's death. So that when the hus-
band gave his wife a Bill of Divorce, on condition
that it should become absolute at his death, she
remained his wife as long as he lived ; but at the
moment of his death she was not his widow, but a
divorced woman.*
^ Deuteronomy xxv, 5-10.
2 Mishnah Gittin vii, 3. There was a tradition cited by
Rabbi Samuel bar Nahmani that the warriors of King David,
on going to war, gave bills of divorce to their wives to take
efiEect in case they died in battle (Talmud Babli Kethuboth
9 b), supra, p. 134.
CHAPTER XIV.
ATTESTATION AND DELIVERY OF THE BILL OF
DIVORCE (get).
The Get was Attested by Two Witnesses— Who were Per-
sonally Acquainted with the Husband and Wife — The
Delivery of the Get was Essential to Complete the
Divorce — Method of Delivery— Delivery to Minor Wife
— Delivery by Messenger — Presumption that the Hus-
band is Alive at the Time the Messenger delivers the
Get — Who may be Messenger — The Messengers of
the Husband— The Messengers of the Wife— Sub-
Messengers.
The Attestation of the Get. — The Get hav-
ing been written was not signed by the husband, his
name appearing in the body thereof, but was
attested by the signatures of two competent wit-
nesses, who were not related to the parties and
were not otherwise legally disqualified.^ These
wrote their praenomen and patronymic followed
by the word 'Ed (a witness), thus :
" Reuben ben (son of) Jacob, 'Ed." *
The names could be signed in any language.'
Although it was not absolutely essential that
there should be subscribing witnesses to the Get,
Rabban Gamaliel ordained on account of public
^ Mishnah Sanhedrin iii, 3.
' Mishnah Gittin ix, 4.
» Id. ix, 8.
(171)
172 THE JEWISH LAW OF DIVORCE.
policy, that in order to facilitate the proof of legal
documents the witnesses should subscribe/ Their
attestation raised a presumption in favor of the
validity of the document, and the burden of prov-
ing the contrary was upon him who attacked it.
After this ordinance requiring the attestation of
witnesses to the document, it was still for a long
time maintained that the Get could be otherwise
proved, and Rabbi Eliezer (about 150 C. E.) held
that in a case where there were no subscribing wit-
nesses, but where the Get had been properly de-
livered to the wife, in the presence of witnesses, it
was valid and could be proved by the witnesses of
the delivery.* This decision was rendered after
the rebellion of Bar Kokhba, when the danger
attending the preparation and delivery of a Bill
of Divorce was very great, the death penalty hav-
ing been decreed against all persons indulging in
this practice ; hence exact conformity with the
prescribed regulations was often impossible.'
In strict law, it was essential that the witnesses
should be personally acquainted with the husband
and wife, so that they might literally be said to
know that this particular Bill of Divorce was
written and intended for a certain woman.* This
being premised, the Get could be prepared in the
absence of the woman, whose identity could after-
wards be established by the witnesses.^
^ Mishnah Gittin iv, 3.
' Id. ix, 4.
8 Talmud Babli Gittin 64 a.
* Mishnah Gittin iii, i.
^ Mi3hnah Baba Bathra x, 4.
ATTESTATION AND DELIVERY OF THE GET. 1 73
But cases sometimes arose where the exigen-
cies of the situation demanded that legal acts
should be done without the usual formalities ; as,
for instance, where the husband was in danger of
his life and ordered a Bill of Divorce for his wife,
it was decided in the College of Rabbi Ishmael
that the Bill of Divorce might be written and de-
livered to her even though the witnesses did not
personally know the parties.^
As stated above, the witnesses signed their
praenomen and patronymic, and added the word
"a witness." If, however, the name was only
partially written it was nevertheless a valid attesta-
tion, or if the word "a witness" was omitted, it
was nevertheless presumed that the subscriber
wrote his name with the intention of being a wit-
ness to the document. As, for instance :
" Reuben a witness."
Or,
" the son of Jacob, a witness."
Or,
" Reuben the son of Jacob " *
1 Talmud Babli Gittin 66 a.
^ Mishnah Gittin ix, 8. The Mishnah states that it was the
custom of some of the best men in Jerusalem to attest docu-
ments in this way, not writing the word " 'Ed " after their
names ; and the Gemara cites a number of instances of dis-
tinguished judges who used marks or seals. For instance,
Abba Areka, commonly called Rab {The Master^ 175-247
C. E.), the greatest of all the Jewish Doctors of the law in
Babylonia, in attesting documents made a mark in the shape
of a fish. Rabbi Hanina's mark was a branch of a date
palm. Rabbi Hasda used the second letter of his name,
" Samekh " (" S "), and Raba Bar Rab Huna used as a seal
174 THE JEWISH LAW OF DIVORCE.
The Delivery of the Get. — The final step in
the divorce procedure was the delivery of the Bill
of Divorce to the wife. This was ordinarily done
by handing it to her with some words indicating
that the document presented was a Bill of Di-
vorce. In order to avoid doubt and to facilitate
proof of divorce, it was ordained that the deliv-
ery of the Get should always be made in the
presence of two witnesses/ who were otherwise
competent to testify at Jewish law.' These wit-
nessess at delivery were not absolutely essential,
and if the Bill of Divorce had been delivered with-
out witnesses, it was, nevertheless, presumed to
have been properly delivered if it was found in the
wife's possession, and its writing was proven by
the subscribing witnesses."
At the time of the delivery of the Get, the wife
must have actual or presumptive notice of its
nature and content. If the husband, after a con-
versation with his wife about their divorce, handed
her a Bill of Divorce, she was presumed to know
its nature from the previous conversation ;* but if
there had been no previous conversation about it,
it was necessary for the husband to give his wife
formal notice that the document handed to her
the emblem of a mast of a ship (Talmud Babli Baba Bathra
i6i b ; Talmud Yerushalmi Gittin sub Mishnah ix, 8 ; Tal-
mud Babli Gittin 36 a). It is the custom of modem judges
to attest certain documents, especially orders of court, by
their initials instead of writing out their names in full.
^ Mishnah Gittin ix, 4.
* Talmud Babli Qiddushin 43 a.
' Maimonides' Gerushin i, 16.
* Mishnah Maaser Sheni iv,*;.
ATTESTATION AND DELIVERY OF THE GET. 175
was a Bill of Divorce.* Hence, if the husband
handed the Get to his wife, telling her that it is
a bond or some other document, or if he put it into
her lap while she was asleep, she was not divorced.'
As soon as the Get came into possession of
the wife she was divorced. It was not necessary
that she should have actual manual seizure of it ;
but if it was brought under her control or within
her reach, or placed in the hand of her authorized
agent, she was divorced. Therefore, if the husband
threw the Get towards her while she was in her
own house or in her own courtyard, it was con-
sidered a valid delivery, because the Get was then
in her possession.* But if he cast it towards her
in his own house, it was not a valid delivery,*
unless it actually came into her own hand, because
being in his own house he is supposed by a legal
presumption to retain possession of the document.
If he cast it towards her on neutral ground, or on
the public highway, she was divorced if it fell
nearer to her than to him, being then considered
to be in her possession.*
A curious case of mistake in the delivery of the
Get is cited in the Mishnah. The scribe prepared
two documents, a Get for the wife and an acknowl-
edgment of receipt of the amount of the Kethu-
bah for the husband. By mistake, he handed
the Get to the wife and the receipt to the
^ Talmud Babli Qiddushin 6 a.
' Mishnah Gittin viii, 2.
' Mishnah Gittin viii, i.
* Ibid.
* Id. viii, 2.
ty6 tHE jEWtsit LAW o^ tJivokcEi
husband. They, being illiterate, exchanged the
documents, the husband thinking that he was de-
livering the Get to the wife and the wife thinking
that she was giving the receipt to the husband.
Afterwards the mistake was discovered. In the
meantime, the woman had remarried, and it was
contended that her second marriage was void and
that therefore she could not live either with her first
or her second husband. But Rabbi Eliezer was of the
opinion, which was accepted as a correct statement
of the law, that if the mistake had been discovered
before her second marriage, the divorce would have
been declared void, and the husband could have
given her a second Get, or could have become
reconciled to her. But having entered into a second
marriage and having acquired a new status, the
mere mistake in the exchange of the documents
would not be permitted to affect or disturb it.^
Delivery of the Get to a Minor Wife. —
Where a minor had been betrothed, and her affi-
anced husband desired to release her, he had to
give her a Bill of Divorce, as though they had
been actually married, and this Get had to be deliv-
ered to her father and not to her.' But after the
minor has been married, her father's guardianship
over her is absolutely at an end, and hence it
seems that she would be entitled to receive the
Get herself.' If, however, the minor was so young
as not to understand the nature of a Get, she could
^ Mishnah Gittin viii, 8.
* Mishnah Kethuboth iv, 4.
^ Talmud Yerushalmi Gittin vi, sub Mishnah ii. See Rashi
to Talmud Babli Qiddushin 43 b, sub Tit. " Hi ve'abiha."
ATtESTAtlOK AKD DELIVERY OF THE GEt. 1 77
not be divorced at all/ As long as the minor was
merely betrothed, her father could appoint a mes-
senger to receive her Get, but after she was mar-
ried, she could be divorced only by actual delivery
of the Get to her ; for a minor could not appoint
an agent or messenger or attorney.'
The Delivery of the Get by a Messenger.
— ^The Biblical law provides that the husband shall
give the wife a bill of divorce. Upon the well-
known doctrine that the act of an agent is the act
of the principal, the Mishnah provides that both
the husband and wife, living apart, could appoint
lawful agents or messengers to give and receive
the bill of divorce.
The doctrine of agency was well known, espe-
cially through the Roman law, but the Rabbis
sought some Biblical foundation for it. Rabbi
Joshua ben Qorha sought to prove this doctrine by
the following text:' "And the whole assembly of
the Congregation of Israel shall kill it (the Paschal
lamb) at evening." " Here," said the Rabbi, " is a
case where it is physically impossible to carry out
the letter of the law ; the meaning must be that
one kills the lamb for all the participants, and his
act is considered the act of his constituency."*
Presumption of Life.— The authority of the
messenger to deliver the Get was revoked by the
death of the husband.
^ Mishnah Gittin vi, 2.
« Id. vi, 3.
' Exodus xii, 6.
* Talmud Babli Qiddushin 41 b.
178 THE JEWISH LAW OP DIVORCE.
In order to avoid vexatious litigation to deter-
mine whether a man was yet alive at the time the
Get was delivered, it was laid down as a general
rule that in all cases the husband, who was alive
when the messenger started on his journey, was
presumed to be alive when the Get was delivered
to the wife ; even where the husband was sick or
very aged, he was presumed to be alive at the time
when his messenger delivered the Get.^ This was
an iniportant presumption of law, inasmuch as
there could be no divorce after the death of the
husband;^ and if the Get was invalid, the wife
became a widow and not a divorced woman, whereby
her status was materially changed.
According to the decision of Rabbi Eliezer ben
Parta, when a man charged with a capital crime
was being led to trial for his life, he was presumed
to be alive at a subsequent time (when a legal act
was performed which required his existence to give
it validity); but if he was being led to execution^
the fact of his existence becomes a question to be
determined by proof. Hence, if a man while be-
ing tried for his life, sent a letter of divorce to his
wife, he was presumed to be still alive when it was
delivered to her ; but if he was being led to execu-
tion, this presumption did not arise. Rabbi Joseph
was of the opinion that if a man was being led to
execution in obedience to the sentence of a Jewish
Court, the presumption is in favor of life, for the
Jewish law gives him the benefit of the slightest
^ Mishnah Gittin iii, 3.
« Ibid, i, 6.
ATTESTATION AND DELIVERY OP THE GET. I79
particle of evidence, in order to stay the execution
and allow a new trial ; but if the sentence was im-
posed by a Court of the Gentiles (Romans), he is
presumed to have been executed; for "when a
man is condemned by them he will surely be put
to death/' ^
Who May be a Messenger.— All persons are
competent to act as messengers for the husband or
the wife, except deaf-mutes and idiots, because they
are non compotes; infants, because of their non-age ;
blind persons, because they cannot see from whom
the Get is brought or to whom it is delivered, and
therefore their testimony in doubtful cases would
be of little value ; heathen and slaves, because
they are not within the pale of the Jewish law,
which looks upon divorce as a religious act.* All
other persons are competent, even those who in
ordinary legal proceedings would be deemed in-
competent. The danger of fraud or perjury is to a
large extent obviated by the document, which,
having been properly written and attested, proves
itself."
The messenger must strictly follow the instruc-
tions of his principal and any act contrary to such
instructions is void.* But if the instructions given
to the messenger are general, he may, within a
certain scope, evercise his discretion in the per-
formance of his duty. If, for example, the mes-
1 Talmud Babli Gittin 28 b.
* Mishnah Gittin ii, 5 ; Talmud Babli Gittin 23 b.
' Mishnah Gittin ii, 7 ; Mishnah Yebamoth xv, 4.
* Mishnah Gittin vi, 3.
l80 THE JEWISH LAW OF DIVORCE.
senger is told to deliver the Get at a particular
place, he has no power to deliver it elsewhere. But
if it is merely suggested to him that he may find
the wife at a particular place for the purpose of
delivering the Get to her, he may, if he does not
find her there, deliver the Get to her elsewhere.^
The law recognized five classes of agents or
messengers, two of them being the appointees of
the husband, two of the wife and the fifth being
the appointee of the messenger or of the court, to
act as a substitute for the one originally appointed.
These five classes of messengers may be consid-
ered under the following heads :
First, the messenger for the delivery of the Get ;
second, the messenger for the delivery of the Get
from foreign parts ; third, the messenger for bring-
ing the Get to the wife ; fourth, the messenger for
receiving the Get for the wife ; and fifth, sul>mes-
sengers.
The Messenger for Delivery. — The messenger
of the husband, appointed to deliver the Get, stands
in the place of his principal. In the eye of the
law his act is the act of the husband who appointed
him, and when he delivers the Get it is supposed
to be the act of the husband himself, unless posi-
tive proof is adduced that he has exceeded the
authority conferred upon him.
The Messenger from Foreign Parts. — The
messenger who brought a Get from the husband to
the wife within the boundaries of Palestine, need
not have been a witness of the writing and the
^ Mishnah Gittin vi, 3.
ATTESTATION AND DELIVERY OF THE GET. l8l
attestation, since any question as to the proper
preparation and execution of the Get could be
settled by the testimony of the subscribing wit-
nesses/ But when the messenger brought the Get
from a foreign country into Palestine, or vice
versa, or from one province or jurisdiction into
another, when both are situated beyond the bound-
aries of Palestine, or from one hostile jurisdiction
into another within Palestine, it was necessary that
he should have witnessed the writing and attesta-
tion of the Get, so that he could, when delivering
it, testify " before me it was written and before me
it was subscribed."*
This statement of the messenger raised a strong
presumption in favor of the validity of the Get.
The scribe who wrote it was presumed to have
been "scrupulously exact"' in the performance of
his duty, and this presumption, together with the
presumption of the moral responsibility of the
messenger,* were deemed equivalent to the testi-
mony of two witnesses ; the strict rules of evidence
were relaxed in this case, lest the wife become
an Egunah.
If, therefore, the messenger could not testify
that it was written and subscribed in his presence,
the Get was void,^ unless the subscribing witnesses
were produced to authenticate it ;* it being consid-
^ Mishnah Gittin i, 3.
2 Id. i, I.
' Talmud Babli Gittin 2 b.
* Id. 3 a.
^ Mishnah Gittin ii, i.
• Id. i, 3.
1 82 THE JEWISH LAW OF DIVORCE.
ered less dangerous to declare the Get void than to
allow the wife to remarry on the faith of it and
afterwards subject her to the necessity of proving
that she had been divorced, in a case where the
divorce had been sent to her from a distant land,
and the difficulties of proving her position would
be almost insurmountable/
The Messenger for Bringing the Get to
THE Wife. — ^The wife may appoint a messenger
to bring the Get to her from the husband or his
messenger, but her messenger is not deemed to be
absolutely her representative, unless he is ap-
pointed by a special formality, and she is not
divorced until he has actually delivered the Get
into her hands.' This principle is illustrated in
the case of the wife of a priest. As his wife, she
was entitled to share in the votive offerings that
were set aside for the sustenance of the priest
and his family. After she had appointed a mes-
senger to bring the Get from her husband, the
question arose whether she was still entitled to the
above rights, and it was decided that she was not
divorced, and, therefore, not deprived of her rights
until the Get was actually delivered into her hands.'
The Messenger for Receiving the Get for
THE Wife. — It is, of course, presumed that the
appointment of any of the three former classes
of messengers is made in the presence of wit-
nesses, but in the case of the appointment by the
^ Maimonides' Treatise Gerushin vii, 8.
2 Mishnah Gittin vi, 4.
8 Ibid.
ATTESTATION AND DELIVERY OF THE GET. 1 83
wife of a messenger to receive her Get, the law
provides that the presence of two sets of wit-
nesses is required, one pair or set to prove the
appointment of the messenger and the other pair
to prove the reception of the Get by him.^ There-
by this messenger becomes her lawful representa-
tive, and the delivery of the Get to him has the
same effect as the delivery to her, and she is
divorced as soon as the Get reaches his hands.*
As stated above, she must have two witnesses
to testify that she appointed him her messenger,
and two witnesses (although these may be the
same persons as the witnesses of the appointment)
to testify that the Get was delivered to the mes-
senger and that he tore it up?
The tearing up of the Get is said, by Rabbi
Yehudah, to refer to the period of public danger,
when Bills of Divorce were classed among the
numerous religious and quasi-religious acts which
the Roman authorities interdicted.* The period
referred to is the one following the rebellion of
the Jews under Bar Kokhba, during the reign of
Hadrian.^ In order to avoid detection, it became
customary to destroy the Get immediately after it
was delivered, and this, of course, had to be done
in the presence of witnesses, in order to perpetu-
ate the proof of delivery in the absence of the
Bill of Divorce.
^ Mishnah Gittin vi, 2.
* Talmud Babli Gittin 64 a; Maimonides^ Gerushin vi, i
' Mishnah Gittin vi, 2.
* Talmud Babli Gittin 64 a.
^ Graetz's " History of the Jews," Vol. II, p. 422.
184 THE JEWISH LAW OF DIVORCE.
Sub-Messengers. — Although ordinarily the
maxim delegatus non potest delegare obtained, there
were some cases in which the strictness of the law
yielded to the exigencies of the situation ; as, for
instance, when a messenger carrying a Get from
one place to another, in Palestine, fell sick while
on the road, he could constitute a sub-messenger
to deliver the Get for him.^ If, however, in addi-
tion to his appointment by the husband to deliver
the Get, he had been commissioned to receive from
the wife, at the time when he delivered the Get to
her, some article of value, for the purpose of bring-
ing it back to the husband, he could not delegate
his authority,* because special trust and confidence
had been reposed in him, and he became a bailee
for the husband ; and the bailee could not transfer
the bailment to a third person without the consent
of the owner.*
Where the messenger bringing a Get from for-
eign parts fell sick, or was for other reasons unable
to continue his journey, he could not constitute a
sub-messenger; for the messenger bringing the
divorce from foreign parts had a special duty to
perform at the time of the delivery of the Get,
namely, to testify that it was written and attested
in his presence; and the performance of this
special duty could not be delegated to another. He
was obliged to go before a Beth Din, or Court of
Three, and make his deposition that the Get was
^ Mishnah Gittin iii, 5.
» Ibid,
^aimpnides' Treatise Sha'alah Uphiqadon iv, 8.
ATTESTATION AND DELIVERY OF THE GET. 1 8$
written and attested in his presence, and the Beth
Din then appointed a messenger to deliver it. The
substituted messenger, acting under the authority
of the Beth Din, was merely obliged to announce
himself as the messenger of the Court, instead of
repeating the customary formula, "Before me it
was written and before me it was subscribed."^
^ Mishnah Gittin ill, 6.
U
CHAPTER XV.
WHEN THE GET IS NULL AND VOID, OR LOST.
The Husband's Right to Annul the Get Denied by Rabban
Gamaliel— Attempts by Common Barrators to Cast
Doubt on Divorce Proceeding — Ban of Excommunica-
tion — Proof of Divorce when Get is Lost — Uncorrobo-
rated Statement of the Divorced Wife.
Annulling the Get. — Anciently, the husband
could recall and annul the Get sent to his wife, be-
fore it had actually been delivered to her^ or to her
messenger appointed to receive it," and in the same
manner the master could annul the bill of manu-
mission sent to his slave.*
In the year 40 of the present era, Rabban Gama-
liel the Elder decreed that the husband could no
longer annul his Bill of Divorce, except in the
presence of the messenger or the wife.* And the
Doctors of the law decided that although the bill
of divorce might be annulled in this manner, the
bill of manumission, having been written and given
to the messenger, could never be annulled by the
master. An old maxim of the law was here applied.
According to it, an advantage could be conferred
^ Mishnah Gittin iv, 2.
' Id. vi, I.
» Id. i, 6.
* Id. iv, 2.
(.86)
WHEN THE GET IS NULL AND VOID, OR LOST, 1 8/
upon a person in his absence, but nothing could be
done in derogation of his rights except in his pres-
ence. The Bill of Divorce could be revoked and
annulled, because such revocation and annulment
was an advantage to the wife; but the Bill of Manu-
mission of the slave could not be annulled, because
such annulment would be decidedly to his disad-
vantage.* Here may be seen the parting of the
ways in the law referring to the status of the wife
and the slave. There is no longer merely a con-
sideration for the right of the husband and master,
but the right of the wife and the bondsman are
carefully protected. It is considered that it is bet-
ter for the woman to be married than to be free,
/. e, divorced, but that it is better for the slave to
be free than to be under the power of the master.
After the Get had been delivered, the woman was
divorced and was free to marry again after three
months.* The divorce was absolute and it was be-
yond the power of the husband to annul the Get ;
but it sometimes happened that common barrators
sought to annoy the divorced couple and extort
money by raising questions as to the legality of the
divorce.
In order to prevent this, a Sanhedrin which met
at Troyes (about ii 50 C. E.) decreed the ban of
excommunication against any person who attempted
to criticise the procedure for the purpose of cast-
ing doubt upon the legality of the divorce.'
^ Mishnah Gittin i, 6.
* Supra, p. 1 08.
* Eben Haezer cliv, 22, Graetz's " History of the Jews/*
Vol' VI, p. 200.
1 88 the jewish law of divorce.
Proof of Divorce Where the Get or the
Witnesses Cannot be Produced. — As was
shown above,* the proof of the divorce is the pro-
duction of the Get in the possession of the wife,
and where there is any doubt as to its validity,
or where it has been lost or destroyed, it may be
proved by testimony of the subscribing witnessses
or of the witnesses present at its delivery to the
wife. But cases may arise in which it is impossi-
ble either to produce the Get or to call the wit-
nesses to establish it. In such cases, if no excep-
tion were made to the rules of law as to proof of
the divorce, the woman would practically remain a
married woman forever. But the Mishnah pro-
vides that in such cases the mere uncorroborated
statement of the woman may be accepted as evi-
dence of her divorce, provided there be no positive
testimony of her marriage. If the woman stated
that she had been married and was thereafter
divorced, in the absence of all positive evidence,
her statement is taken to be true upon the princi-
ple that "the mouth which binds may unbind,"
and she may be declared free to enter into a
second matrimonial alliance.* For, if the woman
had not stated that she was married, it would not
have been necessary for her to state that she was
divorced, and in the absence of all evidence she would
have been presumed to be unmarried, and could
have entered into marriage without being obliged
to justify herself. It is therefore reasonable and
* Supra, p. 105.
' Mishnah Kethuboth ii, 5.
WHEN THE GET IS NULL AND VOID, OR LOST. 1 89
proper that where she had bound herself by her
statement that she was married, she should be
allowed to free herself by her statement that she
was divorced. But if there is positive testimony
that she is a married woman, her mere statement
to the contrary is not sufficient to free her. If,
however, the woman made her statement before
the Beth Din, and was authorized to remarry, and
after her second marriage witnesses appeared and
testified that she was a married woman, their testi-
mony would not annul the second marriage.*
In a case decided by Rabbi Yohanan of Tiberias
(bom 199, died 279 C.E.), it was held that even
though the woman had not yet remarried, the
decision of the Court, authorizing her to do so,
would not be affected by the subsequent testimony
of witnesses as to her first marriage.*
Similarly, if the woman is a minor, and her
father makes a statement to the effect that he had
given her in marriage and had afterwards received
her divorce during her minority, she is to be
treated as a divorced woman.* For during the
minority of the woman, the father alone had the
right to give her in marriage or to receive her
Get; and his statement had the like effect and
was governed by the same principles as the state-
ment of the woman herself, when she has attained
her majority; after she has attained her majority
^ Mishnah Kethuboth ii, 5.
' Talmud Yerushalmi Kethuboth ii, sub Mishnah v (26 c).
' Mishnah Qiddushin iii, 8.
t^d I'HE JfeWiSrt LAW OF DlVORCfi.
the statement made by her father was of no effect,
inasmuch as she was no longer in his manus}
If there was a rumor in town that a woman was
betrothed, she could not marry unless this rumor
was disproved. But if this rumor was followed by
another that she had been divorced, she was to be
so considered ; for " the rumor which binds may
unbind," in the absence of positive testimony.*
It may be taken as a general rule that in all
cases where there was no positive evidence, the un-
corroborated statement of the woman was sufficient
to establish her status, namely, to determine
whether she was married or unmarried, a divorced
woman or a widow,'
It must be remembered that in the early stages
of the law, the woman was hardly considered a
legal person at all and, therefore, even so obvious
a principle that, in the absence of direct testimony,
the woman's own statement would be sufficient to
establish her status, was not recognized ; and it
should, therefore, not be a matter of surprise to find
this principle stated in the Mishnah and expressed
^ Mishnah Qiddushin iii, 8.
^ Mishnah Gittin ix, 9.
'In the case of Ganer vs. Lady Lanesborough, Peake's
Nisi Prius Cases 17, (1791) before Lord Kenyon, a Jewess
divorced at Leghorn, was permitted to prove her divorce
more judaico. The document under the seal of the syna-
gogue had been ofiEered in evidence, and was held to be no
proof, as the Court could not take judicial notice of the for-
eign law under which it had been executed. The divorced
wife was then called to testify to the nature of the proceed-
ing at Jewish law, and established the validity of her own
divorce.
WHEN THE GET IS NULL AND VOID, OR LOST. I9I
in the Gemara, for it was then an innovation and
a departure from ancient custom ; although to us,
the principle involved seems almost axiomatic.
There was a case in which this principle was judi-
cially announced. A beautiful woman had many
suitors for her hand, and she invariably stated
to all of them that she was a married woman.
Some time thereafter, she accepted a suitor and
married him. Inasmuch as she had upon her own
testimony made a second marriage unlawful, she
was brought before Rabbi Aha, and on being exam-
ined she said that she had merely made the state-
ment for the purpose of getting rid of her objec-
tionable suitors. Rabbi Aha referred the case to
the Rabbinical College at Usha, and they declared
that, inasmuch as the woman had assigned a good
reason for her former statement, her testimony
must be accepted as fact.^
1 Talmud Babli Kethuboth 22 a.
CHAPTER XVI.
SEDER HA-GET.
Rules of Procedure in Divorce, as reported by Rabbi Joseph
Karo in the Shulhan Arukh, Treatise Eben Haezer,
Section 154, with occasional notes by Rabbi Moses
Isserles.
Note.— During the days of the Talmudists, it was the
custom to have a man learned in the law' preside over the
divorce proceeding, and the early Rabbis were accustomed
to have the divorce procedure conducted only before the
ablest authorities. It is therefore improper for any person
to interfere in these matters unless he is learned in the law
of marriage and divorce, and if such a one should endeavor,
without being authorized, to conduct divorce proceedings, I
am of the opinion that his acts should be declared null and
void.
(i) It is the custom in some places not to con-
duct divorce proceedings on the eve of the Sabbath.
(2) A scribe and two witnesses must be present,
none of whom is related to the other, nor to the
husband or the wife.
Note.— The witnesses should be cautioned by the presid-
ing Rabbi to review their lives and repent of any sin that
they may have committed, lest through their sinfulness they
should be incompetent to act in this proceeding. They
should be men of understanding, who appreciate the meaning
of divorce proceedings and, if they cannot read, the entire
proceedings should be thoroughly explained to them before-
hand.
(192)
SEDfiR MA-GET. 193
(3) The scribe should not be one of the wit-
nesses.
(4) The fee of the scribe and of the presiding
Rabbi should not be greater than the value of their
time.
Note. — The services of the one who presides are not like
the services of a Judge, because his duties are merely minis-
terial. A Judge is not permitted to accept any fee for his
judicial services.
(5) It is necessary that they should know the
man to be the husband and the woman to be his
wife ; except in a period of public danger.
(6) If there should happen to be in the same
city one whose name and that of his wife are iden-
tical with the names of the parties about to be
divorced, the proceedings should not be conducted
except in his presence.
(7) If the husband is sick, care should be taken
to see that he is of sound mind at the time of the
writing and delivery of the Get.
(8) If he desires to couple the divorce with a
condition, it should not be mentioned to the scribe
or to the subscribing witnesses until the document
is delivered.
(9) All persons may write the bill of divorce
except a deaf-mute, an idiot, a slave, an idolator,
an Israelite who has apostatized, or one who will-
fully and maliciously breaks the Sabbath.
(10) The husband himself should not write the
Get, unless no other person can be obtained to
write it.
(11) In a like manner the husband should not
194 THE JEWISH LAW OF DIVORCE.
interfere with the scribe by directing him how to
write the Get.
(12) If possible to obtain any other person no
relative of the husband or of the wife should act
as scribe.
(13) The scribe should furnish the parchment,
ink and pen and all other material, and the hus-
band should take possession of them by purchase.
(14) The Rabbi should ask the husband, "Do
you give this Get of your own free will, without
any compulsion ? If you have made any vow or
taken any oath which binds you to give this Get,
tell it to us and we will absolve you from its obli-
gation." The husband should answer, "I have
neither vowed nor sworn and I am under no com-
pulsion, but I give this Get of my own free will
without any compulsion or condition." If the
husband should acknowledge that he has in any
way bound himself to give the Get, he must first
be absolved in order that he may act without com-
pulsion. If he has given security that he will
divorce his wife,* it is not considered equivalent to
the above cases, and he is not deemed then to be
under restraint or compulsion in the sense above
indicated.
(15) The husband hands the parchment and the
pen and ink to the scribe in the presence of the
witnesses, saying to him " Write for me a bill of
divorce for my wife the daughter of
and for the purpose of separation, and I authorize
you to write as many bills as may be necessary
until one shall be produced which shall be without
SEDER HA-GET. 195
flaw both in the writing and in the attestation, in
accordance with the opinion of Rabbi "
(i6) "And you and be witnesses
and attest this Get for my wife the daugh-
ter of and for the purpose of separation and
I authorize you to attest as many bills as may be
necessary until one shall be produced which shall
be without flaw both in the writing and in the at-
testation, in accordance with the opinion of Rabbi
tt
(17) If it be found necessary to write two bills
of divorce on account of the doubt as to the proper
names of the parties, the scribe and the witnesses
should be specially authorized to do so.
(18) The scribe should not write and the wit-
nesses should not sign until they have received the
order from the mouth of the husband himself.
(19) The husband should pay the fee of the
scribe. If he does not, the wife may pay it.
(20) The husband should state before the wit-
nesses that he has not raised and will not raise any
protest or declaration annulling the Get, and that
anything which he had said or may say for this
purpose shall be null and void, and that any witness
who may appear in his behalf shall be declared in-
competent to testify.
(21) The witnesses in whose presence instruc-
tions are given to the scribe should be personally
requested to sign the Get, and should be present
when the names of the parties and the date are
written in it.
(22) It is necessary that they should know this
196 THE JEWISH LAW OF DIVORCE.
to be the Get which the scribe has written in the
name of the husband for the wife, and therefore if
they desire to leave after it has been written, they
should make a mark on it so that they may be able
to identify it.
(23) It is advisable that the husband should be
present with the scribe and witnesses until it has
been written, signed and delivered, that he may
not raise any protest against the Get or do any-
thing which might tend to invalidate the pro-
ceedings.
(24) If he desires to send the Get to the wife
through a messenger, it is necessary that the mes-
senger should be present through the entire pro-
ceedings.
(25) It is necessary before the Get is written that
he should be informed that he is to be the mes-
senger and the Rabbi should state in his hearing
that this Get is written and attested for the woman,
in order that the messenger may be afterwards
enabled to testify to this fact.
(26) When the Get is sent by a messenger it is
advisable that the husband should be solemnly
sworn not to raise any protest against the Get or
do anything which might invalidate the proceed-
ings and annul the Get.
(27) The husband and the messenger must be of
full age, for an infant can neither act as a mes-
senger nor constitute one.
(28) The messenger must be neither a deaf-
mute, an idot, an infant, a slave, an idolator, a blind
man, or one who has been guilty of a trespass of
some Biblical commandment.
SEDER HA-GET. 197
(29) The Bill of Divorce should not be delivered
by a messenger if the husband and wife are both
in the same city.
(30) If the husband is obliged to go away and
cannot wait until the Get is written and signed, let
him give his directions as above, adding the follow-
ing : " I hereby constitute the son of
a messenger to carry this Get to my wife
the daughter of , wherever he may
find her, and his hand shall be as my hand and his
mouth as my mouth and his act as my act and his
delivery as my delivery, and I authorize him to
constitute any number of sub-messengers until the
Get reaches her hand or the hand of her messenger
and as soon as the Get reaches her hand or the
hand of her messenger from the hand of
my messenger or from the hand of any sub-messen-
ger thus constituted, she is divorced from me and
is permitted to be married to any man/'
(31) He who orders the divorce to be delivered
in this manner cannot couple it with conditions.
(32) If he desires that the divorce should not
go into effect until after a certain period, he must,
when ordering the messenger to deliver the Get to
the wife, state that she will not be divorced thereby
until after the fixed period of time has expired.
(33) It is not necessary that the messenger
should be constituted in the presence of the hus-
band, but he may be constituted by the witnesses
(under the direction of the husband) to act as
messenger.
NOTE.—This is true only when the husband, for certain
reasons, cannot himself hand the Get to the messenger.
198 THE JEWISH LAW OF DIVORCE.
(34) Those not competent to act as messengers
have been mentioned above.
(35) The messenger must be present during the
proceeding, as stated above.
(36) Before the scribe begins to write the Get,
he must ask the husband to give him his name and
the name of his father and any surnames that they
may have.
(37) And it is proper also (where possible) to
put the same question to the woman and her
father.
(38) The scribe and the witnesses must be to-
together during the entire proceeding.
(39) The parchment must be cut to the required
size before the writing is commenced.
(40) If the scribe has made a mistake in writ-
ing and begins a new Get on the same sheet, he
must first cut off the portion of the parchment on
which he has written.
(41) The parchment should be greater in length
than in breadth.
(42) It should be ruled with thirteen lines, the
last line to be divided into two small lines for the
signatures of the witnesses, one under the other.
(43) Some say that the writing should be on the
side of the parchment which was next to the flesh,
and not on the hairy side.
(44) The lines should not be ruled with lead,
nor on the same side as the writing.
(45) Some say the Get should not be written
with a quill pen.
(46) The writing should be cl^arapd not qrpQked
pr confused,
SEDER HA-GET. 199
(47) The letters should be separated and not
joined together.
(48) Care should be taken not to have the letters
of two lines running into each other.
(49) The letters should not extend beyond the
marginal line.
(50) There must be no erasures of ink spots;
in case ink drops into a letter, a new Get must
be written.
(51) If a slip of the pen caused an error, it
cannot be erased ; a new Get must be written.
(52) There must be no roughness in the letters,
and no writing over erasures.
(53) The scribe must be careful to write the
form of the Get according to the regulation.
(54) If the Get is found to be improperly written
and the husband is still present, he must give the
order to write a new one.
(55) When the scribe is about to write he must
say to the witnesses : " Behold, I write this Get
in the name the son of for the pur-
pose of divorcing his wife the daughter of
" and then he must proceed to write it at
once.
(56) The ink must be dry before the witnesses
sign.
(57) And then they sign one under the other.
(58) And in the presence of each other.
(59) Each of the witnesses must state before
signing, " I sign this Get in behalf of the
son of for the purpose of divorcing with it
. . , . . . . , the daughter of ... , ...»."
200 THE JEWISH LAW OF DIVORCE.
(60) The signatures must be placed at the right
hand of the sheet next to margin.
(61) Not more than the space of two lines from
the last line in the body of the Get.
(62) Each witness must sign his own name and
the name of his father, thus, the son of
a witness.
(63) The signatures must be clear and distinct.
(64) The scribe must not be a witness.
(65) The signatures must be dried.
(66) The Rabbi and the witnesses must read
the Get together with the signatures of the wit-
nesses, and after they have read it, the Rabbi
must ask the scribe, " Is this the Get which you
have written at the request of the husband, for
the purpose of divorcing his wife the
daughter of ?" and he answers "Yes."
He then asks one of the witnesses, " Did you hear
the husband give the order to the scribe to write
the Get ? "
(67) " Do you recognize this to be the Get ? "
(68) "Did you sign it at the request of the
husband ? "
(69) " Did you sign it in his behalf and for the
purpose of divorcing his wife ? "
(70) "Do you recognize your signature.?"
(71) "Did you sign it in the presence of the
other witness ? "
(72) " Do you recognize his signature } "
(73) And the witness answers " Yes " to all of
these questions; and in the same manner the
second witness is interrogated.
SEDER HA-GET. 201
(74) Then the Get is given to the husband and
he is asked whether he gives it of his own free will,
as above.
(75) The husband then repeats the statement
made in paragraph 20.
(76) If the husband leaves before the delivery
of the Get, he is sworn not to attempt to invalidate
the proceedings, or raise any protest against the
Get.
(jy^ Ten men are summoned to be present at
the delivery of the Get.
(78) The Rabbi addresses them, saying: "If
any man present knows ought to invalidate the Get
or why it should not be delivered, let him speak
before it is delivered ; for after it is delivered, I
shall pronounce the ban of excommunication upon
any one who shall attempt to invalidate the Get.
(79) The Rabbi calls upon all competent persons
to be witnesses.
(80) It is advisable that the attesting witnesses
should be present at the delivery.
(81) The Rabbi shall direct the woman to re-
move any rings that she may have on her fingers,
and stretch forth her hand to receive the Get.
Note.— It is customary for the woman to remain veiled
until she is thus addressed by the Rabbi. The Rabbi asks
her whether she receives the Get of her own free will, and
she answers " yes." The Rabbi then inquires about the
Kethubah, in order that there may be no dispute regarding it
thereafter.
(82) Care must be taken that no one assists her
in taking the Get.
(83) She must not close her hand on it until the
13
202 THE JEWISH LAW OF DIVORCE.
husband pronounces the words mentioned in para-
graph 84.
(84) The husband places the Get into her hands,
saying : ** This is thy Get, and thou art divorced
by it from me, and art permitted to be married to
any man."
(85) After the Get has been laid in her hands,
she takes holds of it with both hands, and then the
Rabbi takes it from her and reads it for the second
time before the witnesses, and pronounces the ban
of excommunication on any one who shall attempt
to invalidate it.
(86) And then the Rabbi tears the Get cross-
wise.
(87) He warns the woman not to become be-
trothed within ninety days from that date.
(88) According to some opinions, the Get should
be delivered by day and not by night ;
(89) Except in the case of emergency, in which
the Get may be written and delivered at night. It
must be delivered on the same day on which it was
written, except when it is sent to another city and
delivery on the same day is impossible.
(90) The husband should not remain alone with
his wife between the writing and delivery of the
Get, and if he does so, it becomes an " old Get,'*
with which she cannot be divorced.
(91) If the Get is brought to her by a messenger,
it must be delivered to her in the presence of two
witnesses, and if the messenger is related to her
or otherwise incompetent, it is delivered in the
presence of at least three, with this statement:
SEDER HA-GET. 203
" This is thy Get which thy husband sends thee,
and by it thou art divorced from him and free to
be married to any man, and this Get was written
and signed in my presence."
(92) If the woman is a iVb'^nz^ (between 12 years
and 12 years 6 months of age) she is divorced by
personal delivery of the Get to her ; if she is be-
trothed, her father may receive the Get for her, if
she has not passed the age of 12 years and 6 months
(JBogeretK),
(93) If she is a Qetannah (under the age of 12
years) and has been married^ her father cannot
receive the Get for her.
(94) If she is a Qetannah and is betrothed ^ but
not yet married^ her father may receive the Get for
her.
(95) A Qetannah who does not understand the
meaning of a Get cannot be divorced.
(96) When a Qetannah is divorced through her
father, two Bills of Divorce are written, one in the
usual form (for her), and one (intended for her
father) reciting the fact that it is for "thy
daughter."
(97) If the Get is to be delivered to a messenger
to carry it to the wife, he is appointed in the pres-
ence of two witnesses, and it is read to him in
their presence, and the scribe and the witnesses
make their statements before him, as above (para-
graphs 66-73).
(98) After this the Rabbi hands the Get to the
husband and he hands it to the messenger, saying,
" Take this Get to my wife, wherever you may find
204 THE JEWISH LAW OF DIVORCE.
her, and your hand shall be as my hand, and your
mouth as my mouth, and your act as my act, and
your delivery as my delivery, and I authorize you
to constitute other messengers and sub-messengers
until the Get reaches her hand or the hand of her
messenger from your hand, or from the hand of
your messenger, or from the hand of the messen-
gers of your messengers, etc.," as above (para-
graph 30).
(99) If the divorce is coupled with conditions
the husband says to the wife at the time of the
delivery : "This is thy Get and thou art hereby di-
vorced from me and free to be married to any man
on condition, that if I do not return on this day
twelve month thou art divorced from this moment,
and if 1 return within the said period, and appear
before and this shall not be a Get
and I hereby declare that my wife shall be compe-
tent to testify that I have not returned and have
not been reunited with her."
(100) If the husband is sick he says to her at
the time of the delivery : " This is thy Get and
thou art divorced by it from me and art free to be
married to any man, on condition that if I do not
die before (a certain day) this shall not be a Get,
but if I die before that time this shall be a Get
from this moment."
(loi) One should be very careful not to engage
in divorce proceedings unless he is learned in the
law of divorce, for there are many points to be
considered, and it is easy for a man to err therein,
and this would result in invalidating the proceeding
and in bastardizing children, and may the Rock of
Israel save us from all error, Amen.
LIST OF PRINCIPAL WORKS CONSULTED IN
THE PREPARATION OF THIS VOLUME.
Bible.
MiSHNAH.
Talmud Babli and Commentaries.
Talmud Yerushalmi.
Mekhilta.
MiDRASH RABBA.
Sepher Yokhsin.
PiRQ^ Di Rabbi Eliezer.
Yalkut Shimeonl
ZOHAR.
Moses ben Maimon (Maimonides) :
" Mishnd Torah."
Shulhan Arukh :
Eben Haezer and Commentaries.
Hoshen Mishpat and Commentaries.
Nahmanides' Commentary on the Pentateuch.
Aben Ezra's Commentary on Tiik Pentateuch.
Rashi's Commentary on the Pentateuch.
Responsa Gaonim.
PHILO JUDiEUS :
English Edition of Yonge in Bohn's Library.
JOSEPHUS :
" Antiquities of the Jews."
" Life."
Institutes of Gaius.
Code of Jostinian.
(205)
206 THE JEWISH LAW OF DIVORCE.
Justinian's Digest.
Novels of Justinian.
Koran :
English translation, George Sale.
Joseph Bergel :
" Die Eheverhaltnisse der alten Juden im Vergleiche mit
den Griechischen und Romischen," Leipzig, 1881.
P. BUCHHOLZ :
" Die Familie in rechtlicher und moralischer Beziehung
nach Mosaisch-Talmudischer Lehre," Breslau, 1867.
Carl Heinrich Cornill :
" Einleitung in das Alte Testament," Freiburg i.B., 1892.
Emanuel Deutsch:
"The Talmud," Philadelphia, 1895.
M. Duschak :
"Das Mosaisch-Talmudische Eherecht mit besonderer
Riicksicht auf die biirgerlichen Gesetze," Wien,
1864.
H. Fassel :
" Das Mosaisch-Rabbinische Civilrecht," Wien, 1852.
Z. Frankel :
" Grundlinien des Mosaisch-Talmudischen Eherechts,"
Breslau, i860.
Emil Frankel:
"Das Judische Eherecht nach dem Reichs-Civilgesetz
vom6. Februar 1875,*' Miinchen, 1891.
H. Graetz ;
" History of the Jews," Philadelphia, 1891.
" Geschichte der Juden," Leipzig.
Ignaz Graszl :
" Das besondere Eherecht der Juden in Oesterreich,"
Wien, 1849.
Samuel Holdheim :
" Ueber die Autonomie der Rabbinen und das Princip
der Judischen Ehe," Schwerin, 1843.
" Ma'amar Haishuth," Berlin, 621 (i860).
LIST OF PRINCIPAL WORKS. 207
Julius Furst :
" Hebraisch-Chaldaisches Handworterbuch," Leipzig,
1876.
Marcus Jastrow :
" Dictionary of the Targumim, the Talmud Babli and
Yerushalmi, etc."
Samuel Mayer :
" Die Rechte der Israeliten, Athener under Romer, etc.,"
Leipzig, 1 86 1.
JOHANN David Michaelis :
" Mosaisches Recht," Biehl, 1777.
M. Mielziner :
" The Jewish Law of Marriage and Divorce," Cincinnati,
1884.
Israel N. Rabbinowicz :
" Legislation Civile du Thalmud," Paris, 1880.
J. L. Saalschutz :
" Das Mosaische Recht nebst den vervoUstandigenden
Thalmudisch-Rabbinischen Bestimmungen," Berlin,
1853.
MoiSE Schwab :
" Le Thalmud de Jerusalem."
John Selden :
" De Jure naturali et gentium juxta disciplinam Ebrae-
orum," Argentorati, 1665.
" Uxor Ebraica."
Emmanuel Weill :
" La femme Juive, sa condition legale d'apr^s la Bible et
le Talmud," Paris, 1874.
E. C. Wines :
" Commentaries on the Laws of the Ancient Hebrews,"
Philadelphia, 1859.
August Wunsche :
" Der Jerusalemische Talmud in seinen Haggadischen
Bestandtheilen," Zurich, 1880.
208 THE JEWISH LAW OF DIVORCE.
FusTEL De Coulanges :
" The Ancient City," Boston and New York, 1889.
William A. Hunter :
"A Systematic and Historical Exposition of Roman
Law," London, 1876.
Charles Letourneau :
" The Evolution of Marriage and of the Family," New
York (Contemporary Science Series).
Ferdinand Mackeldey :
" Handbook of the Roman Law," translated and edited
by Moses A. Dropsie, Esq., Philadelphia, 1883.
John Ferguson McLennan :
" Primitive Marriage," London, 1876.
Sir Henry Sumner Maine :
" Ancient Law," New York, 1888.
Herbert Spencer :
" The Principles of Sociology," New York, 1886.
W. Robertson Smith :
" Kinship and Marriage in Early Arabia," Cambridge,
1885.
GLOSSARY.
Abodah Zarah. Idolatry ; name of a treatise of the Mish-
nah and Talmud, treating chiefly of the relation between
Jews and Heathen, and of Heathen rites and practices ;
of heresies, etc.
Aboth. Name of a treatise of the Mishnah^ containing
moral precepts, maxims and apothegms of Talmudic
authorities, also styled Pirqd Aboth, A similar collec-
tion of a later date is contained in Talmud Babli edi-
tions, named Aboth d'' Rabbi Nathan.
Aboth d' Rabbi Nathan. See Aboth,
Amora, pi. : Amoraim. That class of Talmudic authorities
who lived after the final redaction of the Mishnah and
whose discussions on the opinions of the Tannaim or
authors of the Mishnah and B or ait ha are deposited in
the Gemara^ thus adding a second element to the de-
velopment of the oral law called Talmud.
Amoraim. See Amora,
Baba Bathra. See Baba Qama,
Baba ME91A. See Baba Qama,
Baba Qama. First section (or gate) of three Talmudic
treatises, dealing chiefly with the civil law. Baba Qama
treats of law of damages and restitution, the other two
being called Baba Megia^ middle section, treating chiefly
of trusts, purchase and sale, and Baba Bathra^ last sec-
tion, treating chiefly of laws of real estate and inheritance.
Babli. Babylonian,
Ben. Son of.
Bereshith Rabbah. Name of the first book of the
Midrash Rabbah, See Midrash,
Beth Din. Court — ^literally, House of Justice.
Bogereth. a female who has passed the age of 12 years
and 6 months.
(209)
210 THE JEWISH LAW OF DIVORCE.
BoRAiTHA. Traditions and opinions of Tannaim not em-
bodied in the Mishnah as compiled by Rabbi Yehudah.
Derekh Ere9. Manners; name of treatise attached to
Talmudic editions; containing laws of etiquette and
deportment.
Ebel Rabbathi. Great Mourning; name of a Talmudic
treatise, also named euphemistically Semakhoth (rejoic-
ings), treating of mourning and mourning customs.
Eben Haezer. One of the divisions of the Shulhan Arukh,
treating principally of marriage and divorce.
Eduyoth. Testimonies; a treatise of the Mishnah and
Talmud, containing laws orally transmitted which were
proven by distinguished authorities to have been adopted
by the Sanhedrin.
Egunah. The chained one ; the wife who has been deserted
by her husband.
Erakhin. Valuations; a treatise of the Mishnah and Tal-
mud containing laws relating to consecrated things,
vows, etc.
Gaon. Excellency ; in the post-Talmudic period Gaon was
the title of the chiefs of the Babylonian academies.
Gemara. Memorizing of verbal teachings; tradition; that
part of the Talmud containing those discussions, deci-
sions, etc., which after the written compilation of the
Mishnah were the materials of verbal study until they,
too, were put to writing.
Gerushin. Sending ofiE; divorce; name of one of the
Treatises of the Code of Maimonides.
Get, pi. : Gittin. A legal document (used especially in the
sense of) a letter of divorce.
Gittin. Name of a Talmudic treatise ; literally, legal docu-
ments, especially Bills of Divorce. The Treatise Gittin
deals chiefly with the Bill of Divorce and Divorce Pro-
cedure.
Halakhah. Practice, adopted opinion, rule — hence, law.
liALALAH. The female issue of a priest's illegitimate con-
nection, or of a priest's wife illegitimately married to him.
PAL19A. The ceremony of taking off the YabanCs shoe.
GLOSSARY. 211
Halu^ah. a woman released from leviratical marriage by
Haliga.
HoL Hammoed. The half-festive days intervening between
the first and the last days of Passover or of Succoth.
HosHEN H AMISHPAT. The breast-plate of Judgment ; one of
the divisions of the Shulhan Arukh treating of civil law.
ISHUTH. Matrimony; marital state; name of one of the
treatises of the Code of Maimonides.
IssuRife BiAH. Name of one of the treatises of the Code of
Maimonides.
Kethubah, pi. : Kethuboth. Writ, deed, especially
marriage contract, containing among other things the
settlement of a certain amount due to the wife on her
husband's death, or on being divorced.
Kethuboth. Name of a treatise of Mishnah and Talmud
relating to marriage contracts, conjugal rights, etc.
KoHEN, pi. : KoHANiM. Priest ; one of the tribe of Aaron.
KuTHi. Cuthean, a member of the sect of the Samaritans.
Maaser Sheni. Second tithe (Deuteronomy xiv, 22, and
xxiv, 14) which Levites had to pay to the priests out of
their tithes ; name of a treatise of the Mishnah.
Makkoth. Stripes ; name of a treatise of the Mishnah and
Talmud containing laws of corporal punishment, of per-
jury, of involuntary homicide, and of the cities of refuge.
Mamzer. One born of an unlawful, incestuous or adul-
terous connection.
Meghillah. Scroll ; in special sense the Roll of the Book
of Esther ; a treatise of the Mishnah and Talmud, con-
taining laws relating to the feast of Purim, the reading
of the Book of Esther, synagogue public readings of the
Scriptures, etc.
Mekhilta. An ancient commentary to the Book of Exodus.
Melakhim. Kings, name of a treatise of the Code of
Maimonides.
MigvoTH. Commandments,
Midrash. The method of discussing the Biblical texts
peculiar to the Doctors of the Talmud.
MiNA. Coin equal to one hundred shekels.
212 THE JEWISH LAW OF DIVORCE.
MiSHNAH. A component part of the Talmud ; the Code of
Law compiled by Rabbi Yehudah the Nasi (about 189
C. E).
MiSHN^ TORAH. Name of the Code of Moses Maimonides
(about 1 1 80).
MiSHPATfM. Judgments, name of the sixth section of the
Book of Exodus (Cap. xxi, i — Cap. xxiv, 18).
MoED Qaton. Lesser festival, name of a treatise of the
Mishnah and Talmud relating to the middle days of the
festivals of Passover and Tabernacles, etc.
Na'arah. a female between the ages of 12 years and 12
years 6 months.
Nasi. Prince, title of the chief of the Sanhedrin.
Nedarim. Vows, a treatise of the Mishnah and Talmud
relating to vows made by females which the father or
hi;sband may annul (Numbers xxx, 4-16).
Nethin, pi. : Nethinim. Literally one given or dedicated
(to the temple), a descendant of the sacred prostitutes
introduced during the reign of the Kings.
Perutah. The smallest copper coin known to the Jews.
Pessahim. Name of a treatise of the Mishnah and Talmud
relating to the Passover, sacrifice of Paschal lamb, etc.
PiRQ^ Aboth. See Aboth,
PiRQ^ D'Rabbi Eliezer. An Haggadistic work on the
Pentateuch of about the eighth century, falsely ascribed
to Rabbi Eliezer ben Hyrcanus.
Qetannah. a female under the age of 12 years.
QiDDUSHiN. Name of a treatise of the Mishnah and
Talmud relating to betrothals.
Rabban. (Teacher), the title of the chief of the Sanhedrin.
Rabbi. My master, title of a Doctor of the Law.
Sanhedrin. Name of a treatise of the Mishnah and Tal-
mud relating to the constitution of the Courts of Law, etc.
Seder Ha-Get. Rules of Procedure in giving a Bill of
Divorce.
Sepher Yokhsin. Book of Genealogies of Talmudic au-
thorities.
Shabbath. Sabbath, name of a treatise of the Mishnah
and Talmud relating to observance of Sabbath day.
GLOSSARY. 213
Shebuoth. Oaths, name of a treatise of the Mishnah and
Talmud relating to administration of oaths.
Shulhan Arukh. The Prepared Table, name of the Code
of Rabbi Joseph Karo (about 1554).
SoTAH. Name of a treatise of the Mishnah and Talmud
containing laws relating to the woman suspected of
. adultery (Numbers v. 11-31).
Talmud. A method of legal reasoning peculiar to the
Rabbis; a name for the Mishnah and Gemara, con-
sidered as a whole.
Tanna, pi. : Tannaim. Learner, or repeater, the title of the
Doctors of the Law during the period of the Mishnah
(about 220 B. C. E.-220 C. E.).
Tannaim. See Tanna,
Tebul Yom. Name of a treatise of the Mishnah relating
to the laws of purification by ablutions on the day the
imcleanness has been contracted.
Therumoth. Heave offerings, name of a treatise of the
Mishnah.
ToRAH. Legal precept, especially the Law, /. ^., Pentateuch
as distinguished from the other portions of the Bible.
Turim. Name of the Code compiled by Rabbi Jacob ben
Asher (about 1340).
Yabam. Brother-in-law, who in the case of his brother
dying without issue, enters his estate and marries his
wife (Deuteronomy xxv, 5, etc.).
Yadayim. Hands, name of a treatise of the Mishnah, con-
taining laws for purifying the hands from uncleanness.
Yebama. Sister-in-law, the widow of a brother who died
without issue.
Yebamoth. The legal relations between Yabam and
Yebama^ name of a treatise of the Mishnah and Talmud.
Yerushalmi. Of Jerusalem; Talmud Yerushalmi^ the
Palestinean collection of Mishnah and Gemara in con
tradistinction to the Babli (Babylonian collection).
ZoHAR. Shining; name of a Kabbalistic work of the thir-
teenth century.
Zuz. A silver coin, one-fourth of a shekel— denar.
INDEX.
PAGE
Abba Areka, 69, 173 n.
Abba Sauly 124
Abraham, divorces Hagar, 23, 133
Adulteress, must leave her husband, 42
loses her Kethubah, 122
cannot marry paramour 96
Adultery, 42» 83* 86, 93, 96, 107
Agent, see Messenger,
of husband could not delegate powers, ... 151
doctrine of agency founded on Biblical law, • 177
Aha, Rabbi, 135, 191
Amemar, 125
Ami, Rabbi, 65, 76
Amoraim, 17
Annulment oitheGtt, 48,87,186,187
Antenuptial Incontinence, 28, 41, 47, 63, 122
Apostesy, does not destroy marriage relation, ... 75
^^/<^«, Rabbi, 33»37» 85, 116, 152
Arabian form of divorce, 136
Assi, Rabbi, 129
Attestation of the Get, 171
Augustus, 139
Aversion, unconquerable, reason for divorce, ... 125
.ff^4)'^(£7«/«, centre of Jewish life, 18
Bald Get 159
Bar Kokhba, divorce regulations after the rebellion
of, 119, 140, 132 n., 183
Barrators excommunicated, 187
Barrenness, cause of divorce, 87, 99, 124
Bedouin, divorce among the, 137
Betrothed, divorce of, 77
2l6 INDEX.
PAGE
Bigamy^ cause of divorce, 99
Bill of Divorce^
views of Sadducees on, 16
peculiar to the Jews, 59> i35
soldier's, 134, 170
ordering, 143
writing, 148
attesting, 171
delivering, 174
oldest form of, 132
form of, 156
essential parts of, 161
torn crosswise on payment of Kethubah, . . 118
when void, consequences, 49
effect of, 105
"Old Get,'' 81
" Folded Get," 159
"Bald Get," 159
when lost, 81, 188
Bitter waters^ ordeal of the, 93
Blank forms of Get, use of, 158
B ondswoman, nghXs oi, 55
Captive, wife taken 46
Causes for divorce,
adultery, 83
antenuptial incontinence, 42
apostasy, 75
aversion, 125
barrenness, 99
bigamy, 76
desertion, • • 73
expatriation, 126
immorality, 123
impotence, 65
leprosy, 67
licentiousness, 76
mutual consent, . . , 39
physical blemishes, 67
/ - .
INDEX. 217
PAGE
refusal of conjugal rights, 63
refusal to support, 68
sterility, 99
wife-beating, 70
divorce rarely without cause, 104
dispute of schools of Hillel and Shammai about 32
Childlessness 65, 99
Children^ legitimacy of, 85
of divorced woman 127
custody of, 129
support of, 130
Christian^ marriage of Jew and, 92
Codes, Jewish law, .. 12, 17, 18, 19
Condition^ divorce on, 165
Condonation of adultery not allowed, 96
Confession of adultery, effect of, 96
Conflict of Jewish and non-Jewish law, 141
Conjugal rights a cause for divorce, refusal of, . . 63, 124
Consanguinity^ 124
Construction of language of Get, 145
Contractual chzrdicter of marriage, 56
Court will force husband to give divorce, 58, 89
of the Jews in criminal cases, 178
of Gentiles, appeal to, 75
divorce in court of heathen, 59, 135, 149
Custody of children, 127, 129
Damages to be paid by ravisher and seducer, . . 43, 44
Dating the Get, 16, 161
Day, legal, 164
Deaf 'Mute cannot divorce, ". 50, 51, 148
cannot be messenger for divorce, 179
Death from absence, no presumption of, 72, 169
statement made, or act done in contempla-
tion of, 146
penalty, 84
divorce on condition of husband's, 169
Delivery of Get to the wife, 174, etc.
Desertion, 72, 75, 126
14
2l8 INDEX.
PAGE
Dies juridici^ 163
Diffareatio^ 139
Diocletian^ laws of, 129, 140
Divorce^ reference in Bible to, 12, 23, 30
a necessary evil, 25, 37
is pre-Mosaic, 25, 132
is a quasi-religious act, 59? 141? 179
is a quasi judicial act, 143
by the Court, 58, 89
rarely without cause, 104
by mutual consent, 39
begins at delivery of Get, ... 175
among Arabs, 136
Greeks, 138
Romans, 61, 138
Bedouin, 137
heathen, 135
on condition, . • 165, etc
proof of, 188
Divorced woman may remarry, 84, 98
\ssui juris, loi, 105
entitled to custody of children, 129
remarriage of, 107
maintenance of, 121
property of, 1 1 1
vow of, 106, 108, 128
Dowry, see Kethubah, 46, 1 1 1
Duress, invalidates divorce, 57
i£'flr«/«^j, etc., of divorced woman, 121
Egunah, 73, 146, 181
Elazar, Rabbi, 38, 87
Elieser, Rabbi, 158, 165, 172
Eliezerben Partaj'R.dhhi, 178
Equitable rules become law, 79
Ervath Dabar, 33
i£'jj<?«//^?/ parts of a Get, 161
words of separation, 164
Expatriation, 126
INDEX. 219
PAGE
Ezra^s ordimince, 90
Eees of scribe for writing Get, 153
Einej paid by seducer and ravish er, 43
FoldedGet^ , , . . 159
^<!7r«;f« /^r/j, Get sent from, 180, etc.
Gamaliel^ Rabban, 171
Gamaliel the Elder, Rabban, 48, 49, 164, 186
Gershom of Mayence, decree of Rabbi, ^4» 52, 76
Get, see Bill of Divorce.
Greeks, form of divorce among the, 138
Hadrian, decree of, respecting Jewish divorces,
ii9» i40» 152 n., 183
/r<3!^^r, divorce of, 23, 127
Haliqa, 98, 144, 177
Hallalah, 98
Hanina, Rabbi, 151, 173 n.
Hasda, Rabbi, 129, 130, 173 n.
Heathen, marriage with, 89
may not be messenger, 179
divorce in Court of the, 59, 135, 149
Herodias divorced her husband, 61
Hillel, 37, 64, 81, 128
schools of Shammai and, 32
Hoshd'yah, Rabbi, 121
Huna, Rabbi, 135
Husband has right to divorce wife, 24
right to divorce restricted, 41
is compelled to divorce at suit of wife, ... 58
insane, cannot divorce 50
must support children 128
must himself order the Get, 147
may attach conditions to Get, 165
cannot condone adultery of wife, 42, 196
annulment of bill of divorce, (see annulment), 48
Impotence^ cause for divorce, 65
Incest, 89
Insanity of husband, 50
of wife, 45
220 INDEX.
PAGE
Isaiah^ . . 134
Ishmaelj Rabbi, . . . , 45, 173
Isserles, Rabbi Moses 71
Jacob bar Ahay'R^bhX no
JephthaK's sacrifice, 23
Jeremiah^ 82, 160
Jerusalem^ residence in, 73, 127
Jesus'^ opinions on divorce, 26, 35, 61, 84
Joseph^ Rabbi, 178
Joseph and Mary, case of, 35
Josephus* opinions on divorce, 34> 61
Joshua^ Rabbi, 88
Joshua ben Qdrha, Rabbi, 177
Judicial seTp2Lr?Monj . . 89
divorce is quasi, 143
Justinian^ 130
Kahana, Rabbi, . 70
AV/^«^^^, laws relating to, iii -127
purpose of, 47, 48
guarantee of, 87
King, divorced wife of, 138
Kohen^ see priest.
Legitimacy of children, 85
Leprosy, cause for divorce, 67, 97
Levirate marriage, 144, 147, 169
Liberty of wife, personal, . . » • 69
Licentiousness, cause for divorce, 75
Lost Get, 81, 188
Maimonides, 14, 18, 53, 156
Maine, Sir H. S .... 9, 10
Maintenance of children, 130
Majority, rule of, 20
MalachVs protest against divorce, 30
Mamzer. 93
Maintenance, see support.
Manumission of slave, bill of, 149, 186
Mar Raba, 125
Marriage, Jewish view of, 39
INDEX. 221
PAGE
Marriage with divorced woman, 84
to second wife, 82
of divorced woman, 107
of deaf-mute, 51
form of, ... 137
of adulteress to paramour prohibited, .... 96
clauses in Get in restraint of, 164, 167
Mar Samuel^ ^9) 99> ^29, 137, 140
Meir^ Rabbi, 38, 86, 114
Messenger in divorce proceedings, laws relating
to, 107, 177-185
Military divorces, 134, 170
Minor wife, 46, 124, 189
Mishnah, 13, iS» 16, 17, 45
Mohammed, 64, 84, 109, ii5, 137
Mohammedan law, 71, 84, 141
Montaigne on divorce, 37
Morality, breach of, ground for divorce, . . • . . 123
Mosaic law, . n-15, 17, 23, 25, 28-30, 41, 43-47, 55, 63, (3^, 79,
82, 89, 93, 109, 122, 127, 132
Mute, divorce by a, 148
Mutual Consent, divorce by, 39
Names of parties in Get, » . . . . 164
Nehemiah, 4 . . 92
Nethin, 93, etc.
Nurslings remain with divorced wife 128
Obadiah of Bartenora, Rabbi, 159
OldGet, 81
Ordeal of bitter waters 93, etc.
Ordering the Get 143
Palestine, residence in, 73» 126
Paramour could not marry adulteress, 96
Patriarchal sysitva, 22,54,101,127,149,165
Paul, on divorce, opinion of, 36, 84
Pharisees, views on the law 16
views on divorce, 162
Jesus and the, •' 35
Philo^ 34» 83* 99. «02
222 INDEX.
PAGE
Physical blemishes cause for divorce, 44? 67, 122
Polygamy abolished, 53> 7^
Practice and theory of divorce, 32
Preparing the Get , 143
Presumption of remarriage, • 81
of death, 146
of life, » . . . . 177
Priest^ could not marry a captive, 34, n. 3
must divorce wife if unclean, 66
could not marry divorced woman, 98, 109
could not marry harlot or Hallalah, .... 102
high priest could not marry a widow, .... 103
law of priest's daughter, 104
could not remarry his own divorced wife, . . 160
rights of priest's wife, 182
/*r^^<?^/«r<? in divorce, rules of, 142, 192, etc.
Proof of divorce, 188
Property of divorced woman, iii
Rab^ 69, 173 n.
RabaMar^ 125
Raba bar Rab Huna, 173, etc.
Rabbinical law, authority of, 13* 20
Rabbinowicz^ J. M., 160
Rabha 38
Rape^ see Ravisher.
Rashi, 159
Ravisher y 29, 42 1 14
Reconciliation^ 47> 79
Refusal oi conjugal rights, cause for divorce, . . . 117, 124
Religious act, divorce a quasi- 59t 14I) 179
uses, 87
obstructions, 44
Remarriage oidivoYQt&'womzxij 30,81,82,109
Renunciation of right to remarry, 87
Restraint of marriage clauses in Get, in 164, 167
Restrictions on divorce, 24, 26, 28, 41, 45, 46, 48, 50,69, 76, 107
Roman law^ father's power, 23
divorce, 61
loss of citizenship, 75
INDEX. 223
PAGE
presumption of death, 73
introduction of bill of divorce, 139
form of divorce, ... 138
Rules of procedure in divorce, 192
Rumor, e£Eect of, 190
Sadducees, 16, 162
Salome divorced her husband, 61
Samuel bar Abba, yi?a, ^9> 99> 129, 137, 140
Samuel bar Nahmani, 170
SanAedrtnj of Mayencej 52
of Troyes, 187
Saulf king, exercises patria-potestas 23
Schools of law ^ 18
Sealed Get, 160
Seder Ha-Get, 192, etc.
Seduction, 29n., 43
Separate estate of wife, 120
Separation, words of, 164
Sexual immorality, cause for divorce, 33
Shammai, 64, 81, 128
Schools of Hillel and 32
Shimeon ben Shetah, 113
Shulhan Arukh, i9> 53
Simon ben Gamaliel, Rabban, . 67, 70, 87, 108, 119, 145, 160
Simon III ben Gamaliel, Rabban, 49
Simon ben Shetah, 113
Simon ben Yohai, 150
Simon the Just, i4» 15
Slander, 28
Slave, 149, 179
Spencer, Herbert, on divorce, 40 n.
Status of divorced woman, loi
Sterility, cause for divorce 99
Stripes, punishment by, 39* 89, 109
Support, wife entitled to, 55
refusal to, 67
of divorced woman, iri
of children, 130
Talmud, 10, 12, 18
224 INDEX.
PAGE
Tannaim^ i6
Tarphon, Rabbi, 124
Torah, see Mosaic law.
Torts^ liability of divorced woman for, 106
Traditional law^ 12, 13, 14
Turim, 19
Ulla^ Rabbi, . . 129, 131
Vow of wife, annulment of, 66, 69, 70
of abstention, 66
to divorce, 79
absolving from, 80
of divorced woman, 106, 108, 128
Waiver of Kethubah, 114
Weil^ Rabbi Jacob, 71
Wife^ falsely accused of antenuptial incontinence, . 41
right to a divorce, 54, 57
personal rights under Biblical law, . . . . 24, 55, 55 n.
cannot be divorced against her will, .... 52
cannot give Get to her husband, 60
beating, 70, 71
must have a Kethubah, 114
pays scribe's fees, 154
may appoint messenger, 182
could write her own Get, 149
Witnesses^ subscribing to Get, 172
must know the parties, 172
at delivery of Get, 174
divorced woman her own witness, 188
Writings the Get, 148, etc.
order to write, 144, 147
Vannaiy Rabbi, 20, 45
Vebama, • 98, 145
Yekudahj the Nasij Rabbi, 15, 17, 117, 124, 158, 164, 169, 183
Yehudah ben Bathyra, Rabbi, 154
Yohanan, Rabbi, 38, 135, 189
Yohanan ben Zakkai, Rabbi, 97
Yos^y Rabbi, 124, 152, 169
Yos^ ben Yehudah, Rabbi, 114
Yos^^ the Galilean, Rabbi, no, 154
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