Section 2: Domestic Law
Chapter 1: Husband and Wife
We come now to consider man as a member of a family, and in doing this we must consider the threefold relation which subsists in a family.
- These, to wit, between husband and wife, parent and child, master and servant.
First of these we shall consider husband and wife.
- In every species of animals the connexion between the sexes is just as much as is necessary for the propagation and support of the species.
- Quadrupeds, whenever the female impregnates, have no farther desire for each other; the support of the young is no burden to the female, and there is no occasion for the assistance of the male.
- Among birds some such thing as marriage seems to take place, they continue the objects of desire to each other, their connexion remains for a considerable time, and they jointly support the young; but whenever the young can shift for themselves all further inclination ceases.
- In the human species women by their milk are not capable of providing long for their children.
- The assistance of the husband is therefore necessary for their sustenance, and this ought to make marriage perpetual.
In countries, however, where Christianity is not established, the husband possesses an unlimited power of divorce, and is not accountable for his conduct.
- In ancient Rome, though they had the power of doing it, yet it was thought contrary to good manners.
- We may observe an utility in this constitution of our nature that children have so long a dependence upon their parents, to bring down their passions to theirs, and thus be trained up at length to become useful members of society.
- Every child gets this piece of education, even under the most worthless parent.
On this subject it is proposed to consider the duties of each of the two parties during their union, how this union should [be] begun and ended, and what are the particular rights and privileges of each.
- The first duty is fidelity of the wife to the husband; breach of chastity is the greatest of offences. Spurious children may be introduced into the family, and come to the succession instead of lawful ones.
- This real utility, however, is not the proper foundation of the crime.
- The indignation of the public against the wife arises from their sympathy with the jealousy of the husband, and accordingly they are disposed to resent and punish it.
- The sentiment of jealousy is not chiefly founded, or rather not at all, upon the idea of a spurious offspring.
- It is not from the particular act that the jealousy arises, but he considers her infidelity as an entire alienation of that preference to all other persons which she owes him.
- This is the real idea he has of it, as may appear from the following consideration.
- The idea we have of a father does not arise from the voluptuous act which gave occasion to our existence, for this idea is partly loathsome, partly ridiculous.
- The real idea that a son has of a father is the director of his infancy, the supporter of his helplessness, his guardian, pattern and protector.
- These are the proper filial sentiments.
- The father’s idea of a son is of one that depends upon him, and was bred up in his house or at his expense, by which connexion there should grow up an affection towards him;
- but a spurious offspring is disagreeable from the resentment that arises against the mother’s infidelity.
- In those countries where the manners of the people are rude and uncultivated, there is no such thing as jealousy, every child that is born is considered as their own.
- The foundation of jealousy is that delicacy which attends the sentiment of love, and it is more or less in different countries, in proportion to the rudeness of their manners.
- In general, wherever there is little regard paid to the sex, infidelity is little regarded, and there will be the greatest looseness of manners.
- Agreeable to this we find that Menelaus expressed his resentment against Paris, not against Helen, and this not for debauching her, but for carrying her away.
- In the Odyssey she talks before her husband of that action without reserve.
- In Sparta it was common for them to borrow and lend their wives.
- When manners became more refined, jealousy began, and rose at length to such a height that wives were shut up, as they are among the Turks at this day.
- As mankind became more refined, the same fondness which made them shut up women made them allow them liberties. In the latter ages of Greece women were allowed to go anywhere.
- This same fondness, carried to a high degree, gives as great a licence as when infidelity was disregarded. In no barbarous country is there more licentiousness than in France.
- Thus we may observe the prejudice of manners, with respect to women, in the different periods of society.
- Though there was little or no regard paid to women in the first state of society as objects of pleasure, yet there never was more regard paid them as rational creatures.
- In North America the women are consulted on the carrying on of war, and in every important undertaking.
- The respect paid to women in modern times is very small; they are only put to no trouble for spoiling of their beauty.
- A man will not exempt his friend from a laborious piece of business, but he will spare his mistress.
- When the infidelity of the wife is considered as an injury to the husband, it is necessary that unmarried women should be laid under restraints, that when married they may be accustomed to them.
- Hence the origin of punishment for fornication.
- We come now to consider how this union is begun.
- As the duty after marriage is quite different from what it was before, it is necessary that there should be some ceremony at the commencement of it.
- This differs in different countries, but in general is connected with religion, as it is supposed to make the greatest impression.
- In the infancy of society, though marriage seemed intended to be perpetual, yet the husband had an unlimited power of divorce, though it was reckoned indecent to exercise it unless for an enormous crime.
- The reason was that the government durst intermeddle little with private affairs, and far less with matters in private families.
- For the security of government they endeavoured by all means to strengthen the power of the husband and make him as absolute as possible.
- In ancient Rome the husband was sovereign lord of life and death in all matters belonging to his own family.
In Rome three kinds of marriages took place:
- By confarreation, a religious ceremony;
- By coemption3, when the husband bought his wife;
- By use. If he had lived with her a year and day, she was his by prescription, and he could divorce her.
The power of divorce extended to the wife after female succession took place.
- A woman who had a great fortune and power before marriage would not incline to give it all to her husband.
- The lawyers therefore invented a new kind of marriage in favour of heiresses, which was called thedeductio domi, or marriage by contract;
- In it, certain terms were agreed on between the parties, and then the husband came and carried her home.
- To prevent prescription taking place, she went away three or four days every year, which, according to the form of the contract, secured her fortune.
- Thus the wife became equally independent with the husband, and had equally the power of divorce.
- As the marriage was founded upon the consent of both parties, it was reasonable that the dissent of either party should dissolve it.
This form of marriage is pretty similar to the present, with this material difference however, that it did not legitimate the children nor preserve the honour of the women.
- The Roman form caused great disorders. When the parties separated, which was often the case, they married others, and very often the women went through five or six husbands.
- This so corrupted their morals that about the end of the monarchy there was scarce a great man that was not cuckolded.
- The disorder came to such a height that, after the establishment of Christianity, the power of divorce was restrained unless for certain causes.
- Among the Scythian nations, which settled in the West of Europe, divorce was taken away altogether. In Burgundy, however, the power of the husband was very great.
- By a law there, if a man abused his wife he was liable to a fine, but if the wife misbehaved she was put to death.
- As in general only flagrant crimes were taken notice of by the civil court, small ones went into the hands of the ecclesiastics, and that first gave occasion to their great power.
- When the civil court gave no redress for breach of contract, the ecclesiastics punished the offender for perjury, and when any difference happened betwixt man and wife, they made them suffer penance for it.
- Afterwards the power of divorce was taken away unless for adultery, and when the one was afraid of bodily harm from the other.
- Even this last was not a perfect divorce, for neither of the parties was allowed to marry again, but only a separation a mensa et toro.
- The causes of a perfect divorce, after which they were allowed to marry again, were these three.
- If they were within the degrees of consanguinity, the marriage was made null unless they had a dispensation from the Pope.
- Precontract with any other woman.
- Frigidity in a man, and incapacity in a woman.
- The ecclesiastics brought in other alterations besides these with regard to marriage.
- It is to be observed that the laws made by men are not altogether favourable to women.
- They considered the infidelity of the husband and wife were equally punished, he had no more power to divorce than she.
- Adultery, saevitia, and metus were considered as causes of separation, but not of divorce.
- The canon law, when it took place, was dictated by ecclesiastics, who on most occasions copied the Roman law, as they were the only persons that understood Latin, and among whom the remains of literature were preserved.
- At first even the ecclesiastic law required no ceremonies at marriage.
- As the ceremonies of confarreation and coemption had gone into desuetude in the latter times of the Roman law, when the only thing that was required was the deductio domi;
- so by the ecclesiastic law for a long time, a contract of any kind made a marriage, whether a contract in praesenti or in futuro.
- Contract in praesenti is when I say, I take you for a wife, or, I take you for a husband.
- Contract in futuro is when they say, I will do it.
- Either of these contracts might be proved either by evidence or by oath, if they declared themselves married persons, or that they were to be so.
- Pope Innocent III enacted that all marriages should be performed in facie ecclesiae, but though this was considered as the only decent marriage, yet others were often in use and in some cases were valid.
- If a person was married in futuro, and afterwards in facie ecclesiae, and the first wife made no opposition till after the banns were out, the first marriage was null.
- If it was contract in praesenti the second was null.
- This was the case in England till the late Marriage Act.
- If a contract in futuro can be proved, or if the man refuse his oath, the marriage is in some countries considered as valid.
- The contract in praesenti is everywhere valid, especially if they cohabit afterwards.
- All these institutions are derived from the canon law, which made the breach of them liable to church censures as ours does.
An act of parliament only makes a divorce in England, the infidelity of the wife will not do it. In Scotland it is much more easily done.
- Protestants never carried matters so far as the canon law, for the clergy married themselves.
- Besides, love, which was formerly a ridiculous passion, became more grave and respectable.
- As a proof of this, it is worth our observation that no ancient tragedy turned on love, whereas now it is more respectable and influences all the public entertainments.
- This can be accounted for only by the changes of mankind.
Next: Chapter 1b: Polygamy