Front Page Titles (by Subject) CHAPTER V: Of the Original Acquisition of a Right over Persons; where also is treated of the Right of Parents: Of Marriages: Of Societies: Of the Right over Subjects: Over Slaves. - The Rights of War and Peace (2005 ed.) vol. 2 (Book II)
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CHAPTER V: Of the Original Acquisition of a Right over Persons; where also is treated of the Right of Parents: Of Marriages: Of Societies: Of the Right over Subjects: Over Slaves. - Hugo Grotius, The Rights of War and Peace (2005 ed.) vol. 2 (Book II) 
The Rights of War and Peace, edited and with an Introduction by Richard Tuck, from the Edition by Jean Barbeyrac (Indianapolis: Liberty Fund, 2005). Vol. 2.
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Of the Original Acquisition of a Right over Persons; where also is treated of the Right of Parents: Of Marriages: Of Societies: Of the Right over Subjects: Over Slaves.
I.The Right of Parents over Children.I. We have a Right, not only over Things, but over Persons too, and this Right is1 originally derived from Generation, from Consent, from some Crime. By Generation,2 Parents, both Father and Mother, acquire a Right over their Children; but if their Commands should3 run counter, the Father’s Authority is to be preferred in Regard to the Dignity of the Sex.<186>
II.A Distinction of Seasons in Children; where too of Children’s Property in Things.II. 1. And here in Children, three Seasons are to be carefully observed and distinguished. The first Season, that τον̂ βουλευτικον̂ ἀτελον̂ς, of1imperfect Judgment, as Aristotle speaks, when they have no προαίρεσιν2Discretion, as he elsewhere calls it. The second Season, that of ripe Judgment, whilst the Child is yet a Member of the Parent’s Family, ἕως ἂν μὴ χωρισθη̂,3as long as he is not separated or gone from it, as the same Aristotle expresses it. The third, when he has left that Family. In the first Season,4 all the Actions of Children are under the Government and Direction of their Parents; for it is but reasonable, that he who cannot rule himself, should be ruled by some Body else. It is Aeschylus’s Opinion and Observation, Aetas prima, &c.5Children not having the Use of Reason, and being like the Brutes, need to be educated and conducted by the Reason of another. And none but Parents are naturally intrusted with this Charge.
2. Notwithstanding this, Children in their Infancy are, by the Law of Nations, capable of having a Property in Things, tho’ by Reason of that Imperfection of Judgment we spoke of, they cannot exercise that Right. They have a Right, as6Plutarch speaks of Children, ἐν κτήσει, to the Possession, not ἐν χρήσει, to the Use of it. Wherefore it is not by the Law of Nature, that whatever comes to the Children is acquired to the Parents; but by Vertue of the Civil Laws of some particular Countries, which also in this Affair distinguish7 the Father from the Mother; Children not emancipated, from those who are so, and natural ones from legitimate; Distinctions unknown to Nature, which establishes no other than the Prerogative of the Male Sex, in a Conflict of contrary Wills, as I have just now remarked.
III.Of the Season past Childhood, but continuing in the Family.III. In the second Season, when Age has ripened their Judgment, no1 other Actions but such as are of some Moment and Consideration, and concern the State of the Father’s or Mother’s Family are subject to the Will of Parents; and this<187> only, because it is but just, that what makes a Part of the Whole, should conform itself to the Interest of the Whole. As for other Actions, Children then have ἐξουσίαν; that is, a moral Faculty of Acting as they think fit, tho’ even in these they ought always to endeavour to behave themselves in a Manner agreeable to their Parents. But this Obligation, not being by Vertue of a moral Faculty, as those above are, but proceeding from natural Affection, Respect, and Gratitude, does not invalidate2 what is done contrary to the Will of Parents; no more than a Donation made by a lawful Proprietor, would be null and insignificant, because granted against the Rules of good Husbandry.
IV.Of the Right of Chastising Children. Ch. 20. § 7.IV. During both these Seasons, the Right of Governing comprehends also the Right of Chastising, so far as Children are either to be forced to their Duty, or corrected and reformed. As to what regards more rigorous Punishments, we shall examine that in some other Place.
V.Of the Right of selling Children.V. But, tho’ the paternal Authority be so personal and annexed to the Relation of Father, that it can never be taken from him and transferred to another; yet may a Father naturally, and where the Civil Law does not obstruct it, pawn his Child, and1 sell him too, if there be a Necessity for it, and no other Way of maintaining him; as it was authorized2 by an antient Law of the Thebans, (which Aelian mentions in his second Book) who had borrowed it from the Phoenicians, and they from the3Hebrews; and which very Law, Apollonius tells us, in his Epistle to Domitian, obtained among the Phrygians too. Indeed Nature itself is supposed to grant a Right to every Thing, without which, what she commands, cannot be compassed and brought about.
VI.Of the Season past Childhood, and when Children go out of the Family.VI. In the third and last Season, the Child is altogether άυτεξούσιος, at his own Disposal, that Obligation, however, of Affection and Respect, remaining still in Force, because the Reason of it is perpetual, and never ceases. From whence it follows, that the Actions of Kings cannot,1 on the Account of their having their Parents living, be null and void.
VII.A Distinction of the natural and civil Power of Parents. Numb. xxx. 2, &c.VII. Whatever Authority Parents have beyond what we have now stated,1 proceeds from some voluntary Law, which varies according to the Difference of Places. So by the Law which GOD gave the Hebrews, a Father’s Power over his Son or Daughter, to disannul their Vows, was not perpetual, but lasted only so long as they continued in their Father’s House. Thus the Roman Citizens had a<188> Sort of paternal Power over their Children2 peculiar to themselves, as long as they were not3 emancipated, tho’ they were Heads of Families of their own.Lib. De Praeceptis Regis, Praecept. vetante 242. And this was such a Power, as the Romans confessed that other People had not over their Children. Sextus Empiricus, Pyrrhon. B. III. ὁι Ῥωμαίων νομοθέται, &c.4The Roman Legislature has in joined Children to be their Fathers mere Slaves; and that the Children’s Goods should not be at the Disposal and Direction of the Children, but their Father, till they obtain their Freedom, as Slaves do. But this is rejected by others, as barbarous and tyrannical. And Simplicius in Epictetus’s Manual, ὁι δὲ παλαιοὶ τω̂ν Ῥωμαίων, &c.5The antient Roman Laws having a Regard both to that Superiority which Nature gives to Parents, and to the Pains and Labour their Children cost them, and also willing that Children should be altogether subject to them; at the same Time, I presume, depending upon that Affection which Nature inspires Parents with, have indulged to Parents the Liberty, if they please, either of selling or killing their Children with Impunity. Such another paternal Right in Use among the Persians, is condemned by Aristotle6 as a Piece of Tyranny. I was willing to mention this, for the more accurate Distinction of Things that are permitted by the Civil Law from those that are authorised by the Law of Nature.
VIII.Of the Husband’s Right over his Wife. Eph. v. 23.VIII. 1. That Right over Persons which arises from Consent, is derived either from Association or Subjection. The most natural Association is that of Marriage; but because of the1 Difference of Sex, the Authority is not equal; the Husband is the Head of the Wife in all conjugal and family Affairs; for the Wife becomes a Part of the Husband’s Family, and it is but reasonable, that the Husband should have the Rule and Disposal of his own House. If there be any other Prerogative of Husbands,Numb. xxx. 7, &c. as the Privilege allowed them by the Jewish Law of invalidating every Vow the Wife made; and among some People, that of selling their Wives Goods: This is not founded on Nature, but on an arbitrary Establishment. Let us now see in what the Nature of Marriage consists.
2. Marriage then we look upon to be in its natural State, the Cohabitation of a Man with a Woman, which puts the Woman, as it were, under the immediate Inspection and Guard of the Man: For we see, even among some Beasts, such a Sort of Society between the Male and Female. But Man being a rational Creature, Marriage, in Regard to him, includes moreover, an Engagement of the Wife to her Husband.
IX.Whether an Incapacity of parting with a Wife or a Confinement to one, are Essential to Marriage from the Law of Nature or only from that of the Gospel. Deut. xxi. 15. — xvii. 16, 17. 2 Sam. xii. 8. Deut. xxiv. 4.IX. 1. Nor does Nature seem to require any Thing more to constitute a Marriage, nor even the Law of GOD, before the Propagation of the Gospel. For before the Law of Moses, Persons even of the greatest1 Holiness had several Wives at once, and in2 that Law too there are some Precepts directed to those who have several Wives at one and the same Time; and the King is ordered not to multiply to himself too many Wives and Horses; where the Hebrew Interpreters remark,3 that the King was allowed eighteen Wives or Concubines; and GOD<189> observes to David, that he had given him4 several Wives, and those too Women of Note and Quality.
2. So likewise is there a Manner and Method prescribed to him, who had a Mind to part with his Wife, nor is any Body prohibited Marriage with the Woman so divorced, except he who did divorce her, and the5 Priest. But this Liberty of passing to another Husband, is even by the Law of Nature so far to be restrained, as that no Confusion of Issue may thence arise. And from this came that Question which, as6Tacitus relates, was formerly proposed to the Priests, Whether she who had conceived, and was not yet delivered, might lawfully marry? Among the Jews the Intervention of three Months was in joined. But our Lord JESUS CHRIST has prescribed in this,Matt. v. 32. — xix. 9. as well as in many other Things, a more perfect Rule; according to which he declares7 both him who parts with his Wife,<190> except for Adultery, and him who marries her, guilty of Adultery. And his Apostle and Interpreter, St. Paul, not only gives the Husband Power over the Wife’s Body,1 Cor. vii 4. which in the State of Nature also was allowed him, (ὁ γὰρ μιγνύμενος, &c. For he who is joined to a Woman, is, by the Laws of Marriage,<191> Master of her Body, says8Artemidorus) but also grants the Wife reciprocally a Power over the Husband’s Body, Thus establishing, as Lactantius observes,9an Equality of Rights between two Persons that make but one Body.
3. I know very well, that many are of Opinion, that in both those Points (of Polygamy and Divorce) CHRIST did not make any new Law, but only reestablished that which GOD the Father at the very Creation had given;Mark x. 6. our Saviour’s Words, which remind us of that Beginning, seem to have given Occasion to this Opinion. But here we may answer, that from that first Institution indeed, wherein GOD gave to one Man one Woman only, it sufficiently appears10 what<192> is best, and most grateful to GOD; and consequently, what has always been excellent and commendable; but not, that it is any Crime to do otherwise; because where there is no Law, there can be no Transgression; and ’tis certain, that in those Times there was no Law about that Matter. So also when GOD declared, whether by Adam or Moses, that the Marriage Union was so great,Gen. ii. 24. that a Man should leave his Father’s Family to form a new one with his Wife; ’tis the same Thing that is said to Pharaoh’s Daughter, Psal. xlv. 10. Forget thine own People and Father’s House. And tho’ from the In junction of so strict a Friendship, it is plain enough, that ’tis very agreeable to GOD, that this Union should be perpetual; yet can it not be proved from hence, that GOD did even then11 command that this Engagement should not, upon any Account whatever, be broke and dispensed with. But it is CHRIST who has forbid Man to put asunder that which GOD in the first Institution of Marriage had joined together; taking for the worthy Subject of a new Law, what was most eligible in itself, and most acceptable to GOD.
4. It is certain, that in former Ages most Nations had the Liberty, not only of Divorces, but also of marrying several Wives. Tacitus12 observes, that the Germans were almost the only Barbarians, in his Time, who were contented with one Wife a-piece; and History furnishes us with an infinite Number of Examples of the contrary Practice, amongst the13Persians, and the14Indians.15 Among the16Aegyptians, the Priests alone took up with one Wife. And among the Greeks,<193> Cecrops was the first, as Athenaeus testifies, who μίαν ἑνὶ ἔζευξεν,17coupled one Woman with one Man; which tho’, by the By, was not long observed, even at Athens, as the Example of18Socrates and others19 inform us. And if there were some People who lived with greater Continency, as the Romans, who never had two Wives at the same Time, and a long While refrained20 from a Divorce, they are indeed to be commended for it, as having come up very near to that State, which is best, and most eligible: And the Marriage of a Priestess of21Jupiter, among these Romans, was never dissolved but by Death: However, it does not follow from all this, that they who did otherwise, before the publishing of the Gospel, were guilty of a Crime [[22 in so doing.]]
X.By the Law of Nature only. Marriages are not void for want of the Consent of Parents.X. 1. Let us now enquire, what Marriages are valid by the Law of Nature: To form a right Judgment in which Affair we should remember, that1Not all Things which are contrary to the Law of Nature, are, by the Law of Nature, null and void; as is evident in the Case of a prodigal Deed of Gift; but only those Things which want the Principle that makes an Act valid, or2 which are attended with some lasting Effect, whereby the Turpitude of the Act is perpetuated. The Principle necessary to render an Act valid, is here, as in other human Acts, capable of producing a Right, a moral Faculty, joined with a sufficient Will. What Will is sufficient to constitute a Right,Ch. 11. of this Book. will be better enquired into, when we come to treat of Promises in general. As to the moral Faculty, there arises a Question about the Consent of Parents, whether that, as some People contend for, is in some Sort necessary by the Law of Nature to the Validity of a Marriage; but they quite mistake the Matter, for all the Arguments they bring for it, prove no more than that it is the Duty of Children to endeavour to obtain their Parent’s Consent; which we readily grant too, with this Proviso, that the Will of the Father and Mother is not visibly unjust. In Truth, if Children owe their Parents a Respect in all Things, certainly then ought they more particularly to pay it in an Affair, such as Marriage is, that concerns the whole Family. But from hence it does not follow, that a Son is not Master of himself, and that he has no Right to marry without the Consent of his Parents. For when a Man marries, he is supposed to be of a competent Age, and Years of Discretion, and to leave the Family; so that in this Respect he is not under the Direction of the Head of that Family. But if he offends against the Reverence he owes him, such a Failure is not sufficient to annul the Act.
2. The Laws of3 the Romans and other Nations, which declare some Marriages to be void, where the Father’s Consent was wanting, are not then founded on the<194> Law of Nature, but the mere Will of the Legislators. For by the same Laws4 the Mother, to whom however the Children do naturally owe a Respect and Veneration, does not, by her not consenting, disannul the Marriage; nor even the Father, if the5 Son was emancipated; and if the Father himself be under the Power of his Father, then both Grandfather and Father must give their Consent to the Son’s Marriage;6 but for a Daughter, the Consent of the Grandfather alone is sufficient; which Distinctions being utterly unknown to the Law of Nature, are Demonstration enough, that it is the Civil Law has introduced them.
Cod. l. 5 tit. 4. De Nuptiis, Leg. 20.3. We find indeed in the Scriptures several pious Men, and especially Women, (to whose Modesty it was most agreeable, in an Affair of this Kind, to be determined by the Judgment and Will of7 others: Pertinent to this is what we read in the first Epistle to the Corinthians,vii. 36. of the disposing of a Virgin) in contracting Marriages wholly directed and advised by their Parents: But yet neither is Esau’s Marriage pronounced void,Gen. xxix. 7, 8. — xxxvi. nor his Children declared illegitimate, for being married without such Consent and Direction. Quintilian, with a Regard to what is strictly and naturally right, expresses himself thus,8If it be allowable for a Son to do sometimes even against the Father’s Will, what would otherwise deserve no Blame at all, certainly that Liberty is never more necessary than in Matrimony.9
XI.By the Evangelical Law, Marriages with another Woman’s Husband, or another Man’s Wife, are null and void.XI. A Marriage, no Doubt of it, contracted with a Woman, who has already an Husband, is void by the Law of Nature, unless her first Husband has divorced her; for till then his Property in her continues: But by the Christian Law,1 till Death breaks off the Engagement. And such a Marriage is therefore void, as well because the moral Faculty is removed by the former Marriage, as because all the Effects of it are criminal; every Act of the second Marriage being an Usurpation of that which belongs to another. So on the other Hand a Marriage contracted2 with him who has a Wife already, is void, by Reason of that Right which CHRIST has allowed the virtuous Woman over her Husband.
XII.By the Law of Nature the Marriages of Parents with their Children are unwarrantable and void.XII. 1. The Question about the Marriages of those who by Blood or Affinity are related, is a nice and difficult Point, and which has frequently been managed pro and con, with no little Heat and Commotion. For whoever attempts to assign certain and natural Reasons why such Marriages are unwarrantable, in the Manner<195> they are prohibited by the Laws and Customs of Nations,1 will by Experience find it a Task not only difficult but impracticable. For as to that Reason which Plutarch2 in his Roman Questions offers, and St. Austin3 after him, in his City of GOD, B. xv. C. 16. of extending Friendships by extending Alliances, is not of so much Weight and Consideration as to make one believe that Marriages contrary to such an End are to be reputed void or unlawful. For that which is less useful is not merely upon that Account unlawful. Add to this, that it may possibly so happen, that some greater Advantage, however great this may be, may interfere with and oppose it, and this too, not only in the Case which GOD in the Jewish Law has excepted, when4a Man dies without Issue, in Order to keep the Estate of their Ancestors still in the Family; on which Reason is founded another Regulation, wherein the5Attick Law was conform to that of the Hebrews,6 I mean, in reference to Virgins, who are7 sole Heiresses, called by them ἐπίκληροι, but also in many other Cases that we frequently meet with, or may imagine ourselves.
2. When I speak of the Difficulty and Impossibility of shewing by convincing Reasons, that Marriage between such as are related by Blood or Affinity are criminal and void by the Law of Nature, I except the Marriages of Fathers and Mothers with their Children of any Degree or Remove; the Reason why such Marriages are unlawful, being, if I am not mistaken, sufficiently evident.8 For neither can the Husband, who by the Law of Marriage is the superior, pay to his Mother (if his Spouse) that respect which Nature requires: Nor a Daughter to her Father, because tho’ she be his inferior, even in Marriage, yet that Union introduces such a Familiarity as is incompatible with such a Respect. Very well has Paulus the Civilian, when he had said before,9 that In contracting Marriages we ought to consult the Right of Nature, and the Decency of the Thing, subjoined, that it was a Breach of that Decency to marry one’s own Daughter. Such Marriages<196> therefore, there is no Room to doubt, are unwarrantable, and ipso Facto void, because the Effect of them is attended with a perpetual Crime.
3. Nor ought we to be any ways influenced by Diogenes’s10 and Crysippus’s Argument, which they fetch from Cocks, and other brute Creatures, to prove that such Conjunctions are not against the Law of Nature. For as we said in the Beginning of this Work,B. 1. Ch. 1. § 10, 11. it is enough to repute a Thing unwarrantable, if it be repugnant to human Nature. And such is the Conjunction of Parents with Children, which Paulus the Lawyer calls11An Incest, according to the Law of Nations: And Xenophon,12 a Law, which is no less a Law, tho’ the13Persians despised it. For that is justly termed Natural, which, as14Michael Ephesus very well observes, is, Τὸ παρὰ τοɩ̂ς πλείστοις κοὶ ἀδιαστρόϕοις καὶ μετὰ ϕύσιν ἔχουσιν, practised by the Generality of such People as are uncorrupted, and live according to Nature. Hippodamus15 the Pythagorean, called the carnal Conjunctions of a Father with his Daughter, or of a Son with his Mother, Παρὰ ϕύσιν ἀμέτρους ἐπιθυμίας, ἀκατασχέτους ὁρμὰς, ἀνοσιωτάτας ἡδονὰς, unnatural and immoderate Lusts, unbridled Passions, most impious Pleasures. Lucan speaking of the Parthians, says, that amongst them,16The King, when drunk, does not dread any Sort of Incest prohibited by the Laws. And presently after,17What can we suppose a Man not capable of,Orat. 20.who thinks he may lawfully lie with his own Mother? Dion Prusaeensis very judiciously ascribes this Custom of the Persians in particular, to their bad Education.
4. And here one would be amazed at Socrates’s18 Fancy in Xenophon, who in such Sort of Marriages can find nothing amiss but the Inequality of Years; from whence, says he, will ensue Barrenness, or the Children will be ill formed. But if this were the only Objection to such a Marriage, it would certainly be neither null nor unlawful, no more than between other Persons whose Ages are often as disproportionate, as that of a Father and Mother is usually in Respect of their Children, when marriageable.
5. But to dwell no longer upon this, let us rather enquire, whether, besides that which we said might be conceived by the Light of Reason, there be not in Men, whom a bad Education has not spoiled, a certain Aversion grafted in their very Tempers, something shocking, and that makes Nature recoil at the Thoughts of mingling with their Parents, or their own Progeny, since even some Beasts naturally shew such an Abhorrence. For many have been of this Opinion; and Arnobius, in his fifth Book against the Gentiles,19What! could Jupiter conceive an infamous Passion even for his own Mother, and could he not be diverted from such a criminal Desire by the Horror which Nature has inspired not only into Men, but also into some Beasts? There is a notable Story upon this Subject, in Aristotle’s History of Animals, Lib. 9. C. 49. of a Camel and a Scythian Horse;20 and another not<197> unlike it in Oppianus, Of Hunting, B. 1. And Seneca, in his Hippolytus,21The very Beasts shun incestuous Commerce, and without knowing the Rules of Duty, by their natural Modesty observe the Laws of Proximity of Blood.
XIII.The Marriages of Brothers with Sisters, of a Mother-in-Law with her Son-in-Law, of a Father-in-Law with his Daughter-in-Law, and such other Matches as these, are unwarrantable and void by the positive Law of GOD.XIII. 1. The next Question is about all the Degrees of Affinity, and the Degrees of Consanguinity in the Collateral Line, those especially which are particularly mentioned in the xviiith of Leviticus. For granting, that these Prohibitions are not derived from the mere Law of Nature, yet do they plainly appear to have their Sanction from an express Order of the Divine Will: Nor is this such an Order as obliges the Jews only, but all Mankind, as seems to be very fairly collected from those Words of GOD to Moses, Defile not yourselves in any of these Things; for in all these the Nations are defiled which I cast out before you. Again, You shall not commit any of these Abominations: For all these Abominations have the Men of the Land done which were before you, and the Land is defiled.
2. For if the Canaanites, and the People about them offended by such Actions, there must have been some Law that prohibited them,1 which Law not being purely natural,Lev. xviii. 24, 26, 27. must needs have been given by GOD, either to them in particular, (which indeed is not very likely, nor do the Words import so much) or to all Mankind; either at the Creation or after the Flood. But now such Laws as were in joined all Mankind, seem no Ways abolished by CHRIST, but only those, which, like a Partition-Wall, separated the Jews from all other People. To which we may add, that St.Eph. ii. 14.Paul does in very severe Terms express his Abhorrence of the Marriage of the Son-in-Law with his Mother-in-Law, tho’ there is no Command of CHRIST relating to that Affair; nor does he himself urge any other Reason, than that such a Mixture was even by Pagans reckoned impure,1 Cor. v. 1.It was a Fornication not so much as named amongst the Gentiles. The Truth of which Assertion, among2 several other Proofs, appears from Charondas’s Laws,<198> which put a Mark of Infamy upon such a Marriage; and from that Passage in Lysias’s Oration, Συνῴκει ὁ πάντων σχετλιώτατος ἀνθρώπων τῃ̑ μητρὶ καὶ τῃ̑ θυγατρὶ, That most profligate Wretch lived as Man and Wife with the Mother and her Daughter. And that of Cicero, in a Case not unlike this,Orat. pro Cluentio. (c. 6) is not foreign to the Matter in Hand: For when he had declared how the Mother-in-Law had married her Son-in-Law, he subjoins, Oh, the incredible Wickedness of the Woman! a Wickedness that no other was ever known to be guilty of. When King Seleucas would fain have given his Wife Stratonice to his SonVit. Demetr. Appian, De Bello Syriac.Antiochus, he was afraid, as Plutarch relates it, lest she should be shocked, Τῷ μὴ νενομισμένῳ, as at an unlawful Thing. And in Virgil we have,
Which general Opinion, if not derived from an invincible Impression of the Light of Nature, must needs proceed from an antient Tradition, founded upon some express Command of GOD.
3. The antient Hebrews, who in this Matter are no contemptible Expositors of the Divine Law,More Nebochim l. 3. c. 49. and after them Moses Maimonides, who has read, and with great Judgment digested all their Writings, say, that there are two Reasons assignable for those Laws, mentioned in the xviiith Chapter of Leviticus, about Marriages: The first, A certain natural Modesty, which will not suffer Parents to mingle with their Issue, either in their own Persons, or3 the Persons of them to whom they are by Blood or Marriage nearly related. And the Second, That the Familiarity and Freedom with which some Persons daily converse together, would give Occasion to Fornications and Adulteries, if such Amours might terminate in a lawful Marriage. If we rightly apply these two Reasons to those Divine Laws in Leviticus, which I have mentioned, it will easily appear, that without speaking here of Parents and Children, between whom Marriage is prohibited, in my Opinion, by natural Reason, tho’ there were no express Law about it; I say, it will appear, that those who are related by Affinity in the direct Line;4 and also, those who are related by Consanguinity in the first Degree of the collateral Line, which in Reference to the common Stock is usually called the Second, cannot marry together for the first Reason, because of the too lively Image of their common Parent, whom<199> every Child immediately represents. And this is founded on that which if not prescribed by Nature, is at least pointed out to us by the Light of Nature, as more decent than its contrary; as many other Things which make the Subject of Laws both Divine and Human.
4. On this Principle the Rabbins say, that in the Degrees forbidden in the direct Line, some are comprehended that are not mentioned in the Law, but in Regard to which the same Reason manifestly takes Place. The Names of which Relations with them are these, The Mother’s Mother, the Mother’s Father’s Mother, the Father’s Mother, the Father’s Father’s Mother, the Father’s Father’s Wife, the Mother’s Father’s Wife, the Son’s Daughter-in-Law, the Son’s Son’s Daughter-in-Law, the Daughter’s Daughter-in-Law, the Son’s Daughter’s Daughter, the Son’s Son’s Daughter, the Daughter’s Daughter’s Daughter, the Daughter’s Son’s Daughter, the Wife’s Son’s Daughter’s Daughter, the Wife’s Daughter’s Daughter’s Daughter, the Wife’s Father’s Mother’s Mother, the Wife’s Mother’s Father’s Mother; that is, to speak after the Roman Fashion, all Grandmothers and Great Grandmothers, Mother-in-Law’s Mothers, Great Granddaughters, Son-in-Law’s Daughters, Daughter-in-Law’s Daughters, Grandsons Wives, Wives Grandmothers; because, under the Title of Relation by the Father’s Side is comprized also that by the Mother’s, and the second Degree under the first, and the third under the second; beyond which it is scarce possible that any Controversy can arise, for if the Thing were possible, all the following Degrees would be comprehended in infinitum.
5. Now the Hebrews think that these Laws, and those that prohibit the Marriages of Brothers with Sisters, were given to Adam5 at the same Time as that In junction of serving GOD, of administring Justice, of not shedding Blood, of not worshipping false Deities, of not Robbing; but so that these matrimonial Laws should not be in Force ’till Mankind was sufficiently multiplied, which could never have been if, in the Beginning of the World, Brothers had not married their Sisters. Nor do they look upon it at all material, that Moses6 has said nothing of it in its proper Place; because it was enough that he had tacitly signified it in the Law itself, by condemning foreign Nations upon that very Account; for there are several such Things in the Law, which are not taken Notice of in Order of Time, but as Occasion requires: From whence arises that celebrated Maxim among the Rabbins, that In the Law there is no such Thing as first or last; that is, many Things are set down there before or after their Time.
See Cajet. in Matt. xix.6. Michael Ephesius, at the fifth Book7 of the Nicomachia, has these Words, concerning the Marriage of Brothers and Sisters, Τὸν ἀδελϕὸν μίγνυσθαι τῃ̑ ἀδελϕῃ̑, &c. For a Brother to lie with a Sister, was at the Beginning indeed a Thing altogether in different; but now there being an established Law against such Conversations, it is far from being in different. Diodorus Siculus calls the forbidding of Brothers and Sisters matching, Κοινὸν ἔθος τω̂ν ἀνθρώπων,8The common Custom of all Men: From which Custom however he excepts the Aegyptians; and Dion Prusaeensis, all Barbarians. Seneca has written,9We represent the Gods, as marrying one with another, and that in a criminal Manner, since Brothers amongst them marry their Sisters. Plato, in his eighth Book De Legibus, calls such Matches, Μηδαμω̂ς ὅσια καὶ θεομιση̂,10Unlawful, and detested by GOD.<200>
7. All which evidently proves, that there was an antient Tradition of a divine Law against such Marriages, and therefore we find that they commonly use the Word Nefas, (Crime) when they speak of them. And that all Brothers and Sisters are included here is plain from the Law itself,11 which comprehends those of that Degree as well by the Father’s as the Mother’s Side, and those whether born and educated at home or abroad.
XIV.Marriages with Relations of a more distant Degree, do not seem so unwarrantable.XIV. 1. Which clear and particular Recital seems to shew the Difference1 between these and more distant Degrees: For Example, to marry an Aunt by the Father’s Side is forbidden; but to marry a2 Brother’s Daughter, where there’s the same Degree of Blood, is not forbidden; nay, there are several Instances of this Kind among the Jews.3To marry Nieces is to us entirely new, but very usual with other People; nor is it by any Law prohibited, says Tacitus. Isaeus,4 and Plutarch5 in the Life of Lysias, observe, that it was allowed of at Athens. The<201> Reason that the Hebrews alledge for it is this, that young Men often frequent their Grandfathers and Grandmothers Houses, or even live there with their Aunts; but they much seldomer go to their Brothers, nor have they so much Right in their Families. Now if we grant all this, as indeed it is consonant enough to Reason, we must acknowledge, that the Law of not marrying Relations in the direct Line, as well as Sisters, since the Multiplication of Mankind, is perpetual, and universal too, as being founded on natural Decency; insomuch that whatever is done contrary to this Law, is, on Account of the Vice that always subsists, null and void: But the Case is not the same as to Laws concerning other Degrees, since they are rather made to prevent certain Inconveniencies, than to divert Men from a Thing that is in itself dishonest: Besides that, there are other Means of remedying those Inconveniencies.
2. And by the antient Canons, which are called Apostolical,6 he who married two Sisters one after another, or his Niece; that is, his Brother’s or Sister’s Daughter, was only in capacitated for the Ministerial Office. Nor is there any Difficulty in answering what we said of the Sinimputed to the Canaanites, and the People about them. For the Terms of Scripture, tho’ general, may be restrained to the most7 considerable Things mentioned in that Chapter, as to Sodomy, Bestiality, Commerce with Father or Mother, or with other Men’s Wives; the Turpitude of which Conjunctions is such, in Comparison of the others, that it was to put, as the Rabbins speak, a Barrier to the former, that the Laws were made in Reference to the latter. The Prohibition against marrying two Sisters at once, may be a very just Argument for not understanding of every particular Thing in that Chapter, what is spoken in general Terms; for Jacob’s Character and Piety, who himself acted contrary to this Prohibition,Exod. vi. 20. Eust. in Iliad. l. 12. v. 224. Id. in Odyss. l. 7. v. 146. will not suffer us to believe, that it was formerly laid upon all Mankind. To which we may add, what Amram, Moses’s Father, did; for he, before the Law, married his Aunt by the Father’s Side, as Diomedes and Iphidamas amongst the Greeks, married their Aunts by the Mother’s Side; and Alcinous, his Brother’s Daughter Arete; and Electra was betrothed to Castor, her Uncle by the Mother’s Side.See Euripides’s Electra, v. 312, 313.
3. But yet the primitive Christians were very much in the right of it, who voluntarily observed not only those Laws which were given in common to all Men, but those which were peculiarly designed for the Hebrew People: Nay, and extended the Bounds of their Modesty even to some farther Degrees of Relation, that in this Virtue too, as well as in all others, they might excel the Jews. And that this was done early, with an universal Consent, appears from the Canons. St. Austin, speaking8 of Cousin-Germans both by the Father and Mother marrying among Christians, They, says he, seldom practised what the Laws allowed; because tho’ the Law of GOD has not forbid it, nor the Law of Man is yet against it; they dreaded, however, a warrantable Action for its Nearness to what is unwarrantable. Several Princes and States have followed in their Laws these Notions of Modesty: Thus Theodosius’s Institution9 forbids any Cousin-Germans to marry,<202> and is highly commended by St. Ambrose, as a Regulation of great Sanctity and Piety.
4. But we must at the same Time observe, that what an human Law forbids to be done, when done, is10 not therefore invalid, unless the Law adds this Clause too, and expressly declares it void.11 By the LXth Canon of the Council of Eliberis, if any Man, after the Decease of his Wife, marries her12 Sister, and she be a Christian, he is excluded from the Sacrament five Years; which evidently supposes that the Marriage Engagement still stands good. And as we just now said, by the Canons called Apostolical, he who married two Sisters, or his Brother’s Daughter, was only rendered incapable of Orders.
XV.There may be some very warrantable Matches which yet may be termed by the Laws Concubinage.XV. 1. But to go on to other Matters, we must observe, that there is a Sort of1 Concubinage, which is indeed a real and valid Marriage, tho’ it may not have some of those Effects that are peculiar to the Civil Right, or perhaps, may lose some natural Effects by an Obstruction from the Civil Law. Thus, for Instance, the Commerce of a Man and Woman Slave, according to the Roman Law, was called Contubernium,2 Cohabitation, not Matrimony; tho’ in such a Society there is nothing essential to a Marriage wanting; and therefore in the antient Canons it was expressly termed, Γάμος, Marriage. So the Commerce between a Freeman and a Woman Slave, is called not Marriage but Concubinage; and afterwards that Name was given by Analogy to the Union of other Persons of a different Condition; as at Athens, when a Citizen espoused a Foreigner, their Children passed for Bastards, as appears from some Passages of Aristophanes3 and Aelian.4Servius5 upon that Verse of Virgil,
expounds the Word Nothos, of mean and obscure Extraction by the Mother’s Side.<203>
2. Now as in the State of Nature there might be a real and true Marriage between such Persons as we have been speaking of, if the Woman was under the Husband’s Protection and had promised him Fidelity: So also in a State of Christianity, that of a Man and Woman Servant,See Decretal, l. 4. tit. 9. De Conjugio Servorum, c. 1. or of a Freeman and a Slave, will be a true Marriage; and much more that of a Citizen and a Foreigner, of a Senator and a free Woman, provided that there is, besides, what the Divine Christian Law requires, viz. An in dissoluble Union of one Man with one Woman; this, I say, will be a true Marriage, tho’ some Advantages of the Civil Law do not accompany it, or, if they would of themselves, are hindered by this Law. And ’tis in this Sense, that we must take these Words of the first Council of Toledo:6As for him who has no Wife, but7a Concubine instead of a Wife, let him not be refused the Communion; provided however, that he be contented with this one Woman, whether Wife or Concubine, as he pleases. To which you may add a Passage in St. Clement’s Institutions, B. viii. Chap. xxxii. And to our present Purpose it is, that Theodosius and Valentinian8 call some Sort of Concubinage an unequal Marriage, and that from thence it is said9 a Charge of Adultery may also arise.
XVI.Some unlawful Marriages may yet be valid.XVI. 1. But besides, tho’ a merely human Law prohibits the contracting of Marriages between some particular Persons, it will not therefore follow that such a Marriage, if it be actually contracted, is void. For to forbid, and to invalidate, are quite different Things; the Effect of a Prohibition may be reduced to a Punishment, either arbitrary, or determined by the Law. And this Sort of Laws which forbid the doing of a Thing, but don’t disannul it when done, Ulpian1 calls imperfect. Such was the Cincian Law, which forbad to give above a certain Sum, but did not make void the Gift which exceeded that Sum.<204>
2. We know indeed that it was afterwards enacted by Theodosius,2 that in Case a Law only prohibited a Thing, and did not precisely add, that whatever was done contrary to that Law should be null and void; yet if the Affair came into Court, whatever was done should be declared, to all Intents and Purposes, as null and void, as if it never had been done. But this Extension of the Power of the Laws did not proceed from the proper and natural Force of Prohibitions: It was the Effect of a particular Law newly established, which other People were no Ways obliged to observe. And indeed, there is oftentimes more Indecency in the Act than in its Consequences, and the Inconveniencies3 that follow the Recision of such an Act, are also frequently greater than the Indecency or Inconvenience of the Act itself.
XVII.The Right and Authority in all Sorts of Societies, is in the Majority.XVII. Besides this most natural Society, there are several other, both publick and private; and the publick are either between a People and the Assembly or Person who governs them, or composed of several Nations. But all of them have this in common to them, that in Matters for which each Association was instituted, the whole Body, or the major Part in the Name of the whole Body, oblige all and every the particular Members of the Society.1 For it is certainly to be presumed, that those who enter into a Society are willing that there should be some Method fixed of deciding Affairs; but it is altogether unreasonable, that a greater Number should be governed by a less;Victor, de potestate civili. n. 14. and therefore, tho’ there were no2 Contracts or Laws that regulate the Manner of determining Affairs, the3 Majority would naturally have the Right and Authority of the Whole. Thucydides says, κύριον εɩ̂̓ναι ὅ, τι ἀ̑ν τὸ πλη̂θος ψηϕίηται,4What the Majority Vote, must stand good. Appian, ἔστι δ’ ἔν τε χειροτονίαις καὶ δίκαις αἐι τὸ πλέον δικαιότερον,5In Elections and Judgments, the Plurality of Voices always carries it. So Dionysius Halicarnassensis, ὅ, τι ἄν δόξη τοɩ̂ς πλείοσι τον̂το νικα̂ν,6What the major Part approve of, must prevail. And in another Place, ὅ, τι δ’ ἄν οἱ πλείους ψη̂ϕοι καθαιρώσι τον̂το ποιεɩ̂ν, What the Plurality of Voices shall repeal we must submit to. And again, ὅ, τν ἄι αἱ πλείους γνω̂μαι καθαιρω̂σι, τον̂το ειναι κυριὸν, What the Majority of Opinions declare to be null and void, that must be so in Fact and Law. So Aristotle, κύριον τὸ τοɩ̂ς πλείοσι δόξαν,7The Opinion of the major Part is valid. And Curtius, B. x.8Let us stand to what the Majority have determined. Prudentius says,
9 that, A small Number of People do not represent the State nor the Senate. And a little afterwards,
that, Their Suffrage ought to yield to that of the greater Number. And in Xenophon10 you have this Expression, ἐκ τη̂ς νικώσης πράττειν πάντα, We must do all Things in Conformity to the prevailing Opinion.
XVIII.What Opinion ought to prevail when the Number of Votes is equal.XVIII. But if the Votes were equal, nothing could be determined, because there is not Weight enough to turn the Scale of the Affair one Way or other; upon which Account it is, that1 when the Yea’s and No’s are equal, the Defendant is supposed to be acquitted. And this Right of Discharge the Greeks, from the Story of Orestes, call2Minerva’s Suffrage: You have this Matter display’d in Aeschylus’s Furies, and in Euripides’s3 Tragedies of Orestes and Electra. By the same Reason the Possessor, in that Case, is maintained in Possession of the Thing contested, as is very well observed4 by the Author of the Problems ascribed to Aristotle, Sect. xxix. In one of his Controversies Seneca expresses himself thus, One Judge condemns and another acquits, in such a Difference of Opinions the milder Sentence should carry it. It is here as in a Syllogism, where the Conclusion follows the weaker Part of the Premisses.
XIX.What Opinions are to be divided, what to be joined.XIX. But here a Question does commonly arise about joining or dividing Opinions: And if we would judge of this by the mere Law of Nature; that is, independently of every Agreement or particular Law that regulates the Method to be taken in that Case, we should distinguish between the Opinions that differ in the Whole, and those whereof one includes a Part of the other.1 The latter ought to<206> be joined as to what they have in common, but the former cannot. If, for Example, some fine a Man twenty (Pounds), and others ten; the Fine must be reduced to ten, against the Opinion that acquits. But if some of the Judges condemn a Criminal to Death, and others to Banishment; these two Opinions ought not to be united together against that which acquits, because they are two Things altogether different, Death not including Banishment. No more can they who would acquit him, unite2 with those who are for banishing him; because, tho’ they both agree not to take away his Life, yet this is not what their Opinion does directly import, but is only a Consequence drawn from it: But he who is for having a Man banished is far from acquitting him: And therefore Pliny, when such an Affair fell out in the Senate,3 did very well observe, that the two Opinions were so opposite, that it was impossible to make them compatible together; and that it signified very little that the Voters all rejected the same Thing, since they did not all approve the same Thing. And Polybius4 takes Notice, that Postumius, the Praeter, was guilty of a great Piece of Injustice, when, in summing up the Votes, he joined those who condemned the captive Greeks, and those who were for detaining them some Time, against those who were for discharging them immediately. There is a Question of this Nature in Gellius, B. ix. and in Curius Fortunatianus, in a Place where he treats Of the Proportion of Quantities: And in Quintilian, the Father, in his 365th Controversy. The Author last mentioned, declares against joining the Opinion of two Judges who condemned to Banishment, with that of two others who voted a Mark of Infamy, against three who condemned to Death.XX.The Right of the absent devolves on those who are present.
XX. Now to this we may add; that if any, by Reason of Absence, or any other Obstruction, are incapable of making Use of their own Right, that Right, for the Time being, devolves on those who are present; which Seneca maintains, in one of his Controversies,1Supposing yourself a Slave to two Masters, to whom you belong in common, (one of them being absent) you must serve the Master2who is present.L. 3. contr. 10.
XXI.What Rank is to be observed amongst Equals, even if they be crown’d Heads.XXI. As to1 the Rank naturally to be observed among the Members of a Society, it is according as every Man entered in to it. So among Brothers, the Rule is for the2 eldest to take Place of the rest; and so on, without any Regard to other Qualifications: For, as Aristotle says, ἴσοι γάρ (οἱ ἀδελϕοι) πλὴν ἐϕ’ ὄσον ταɩ̂ς ἡλικί-<207>αις διαλλάττουσι, They are equal, (that is, Brothers) except only as they differ in Age. Theodosius and Valens, in a Constitution regulating the Rank each Consul ought to keep, very pertinently ask,3When Persons are of one and the same Quality, and in one and the same Post, who should have the Precedence, but he who was first advanced to that Dignity? And therefore it was the antient Custom among Christian Kings and States, for those who had first embraced Christianity, to precede the rest4 in all Councils, where the Affairs of Christianity were managed.
XXII.In Societies founded upon a certain Thing, the Votes are to be considered with Regard to every one’s Share in that Thing. Dig. l. 2. tit. 14 De Pactis, leg. 8. l. 16. tit. 3. Depositi vel contra, leg. 14. l. 42. tit. 5. De rebus Auctorit. Jud. &c. leg. 16.XXII. But here we must subjoin, that when a Society is founded on a Thing which all do not equally partake of; as for Instance, if in an Estate, or a Piece of Ground, one has a Moiety, another a third Part, another a fourth; in this Case we must not only let them take Place according to every Man’s Share, but also consider their Votes with Regard to that Share; that is, Mensoria proportione, as the Mathematicians call it, in a Geometrical Proportion. And as this is highly consonant to natural Equity, so was it also approved of by the1Roman Laws. Thus Strabo2 relates, that when Libyca, and three other neighbouring Cities, were made, as it were, one Corporation, it was agreed that they should have one Vote a-piece, Libyca two, because this contributed much more to the Advantage of the Community than the rest. The same Author3 tells us too, that in Lycia there were twenty-three confederate Cities, some of which were entitled to three Voices,4 some to two, some to one only, and in Proportion to this, bore the Taxes and Expence of the Publick. But, as Aristotle very well observes,5 this will be reasonable only, εἰ κτήματα χάριν ἐκοινώνησαν, When they are associated on the Account of Goods and Possessions.
XXIII.The Power of a State over its Subjects.XXIII. The Union of many Heads of Families into one People or State, gives such a Body of Men the greatest Power over its Members, because this is the1 most perfect of all Societies: Nor is there any outward Act done by any Person, which does not either by itself, or by some Circumstances or other, refer to this Society. And this is what Aristotle means, when he says, Τον̂ς νόμους ἀγορέυειν περὶ ἁπάντων,2That the Laws prescribe concerning all Sorts of Things.
XXIV.Whether Subjects may leave the State they belong to, explained by a Distinction.XXIV. 1. And here it is usual to enquire,1 whether Subjects may go out2 of the State they belong to, without obtaining Leave for so doing. We know there<208> are some People that have no such Thing allowed them, as particularly the Muscovites; nor do we at the same Time disown, but that one may enter into a Civil Society under such Conditions, and that the Custom of the Place may have the Force of an express Agreement. By the Roman Laws indeed, at least by those of later Date, every Man was at his Liberty3 to remove his Habitation whither he pleased: But yet was he no less obliged to bear a Part in all the Offices of the Community of the Place from whence he went. But then this affected those only who continued within the Roman Empire, and the Design of that Law was the particular Advantage that arose4 from thence in Regard to Contributions.
2. But what we desire to be satisfied in, is what would naturally obtain, were there no Agreement to the contrary; nor are we speaking of going out of one Part of the State into another, but out of the whole State, or out of the whole Extent of the Dominion of the Sovereign. That we ought not to go out5 in Troops or large Companies, is sufficiently evident from the End and Design of Civil Society, which could not subsist if such a Permission were granted; and in Things of a moral Nature, what is necessary to obtain the End has the Force of a Law. But the Case seems to be quite different, when a single Person leaves his Country; as it is one Thing to draw Water out of a River, and another to divert the Course of a Part of that River. Tryphonius says,6 that Every Man is at Liberty to chuse the State of which he has a Mind to be a Member. And Cicero,7 in his Plea for Balbus, commends that Privilege which every one has, of Not staying in any State against his own Inclinations: And he calls the Power of either keeping or parting with one’s Right, the Foundation of Liberty. But even here must we observe that natural Rule of Equity, which the Romans, in the Dissolutions of private Societies, always had Regard to; that one is not to go out of the State, if the Interest of the Society requires he should stay in it. For, as Proculus very well observes,Bembo, l. 7.8A Regard is commonly had to the Interest of the Society, and not merely to the particular Interest of any of its Members. Thus, for Instance, it is no Ways for the Benefit of a Civil Society, if there be any great publick Debt contracted, for an Inhabitant to leave it, unless he be ready to pay down his Proportion towards it: Or if a War be undertaken upon a Confidence in the Number of Subjects to support it, and especially if a Siege be apprehended, no Body ought to quit the Service of his Country, unless he substitutes another in his Room, equally qualified to defend the State.
3. Excepting in such Cases as these, it is to be presumed that Nations leave to every one the Liberty of quitting the State, because from this Privilege they them-<209>selves may reap no less an Advantage by the Number of Strangers they receive in their Turn.XXV.A State has no Power over those it has banished.
XXV. Nor has the State any Power over1 Exiles. The Heracidae being by Eurystheus banished Argos, do in Euripides,2 by the Mouth of Iolaus their Defender, thus express themselves,See B. 3. Ch. 20. § 41.
Alcibiades’s Son, in one of Isocrates’s Orations,3 speaking of the Time of his Father’s Banishment, Ὁτ’ οὐδὲν αὐτῷ τη̂ς πόλεως προση̂κεν, When the State had nothing to do with him, nor he with the State. We should now speak of the Society that is composed of several Nations, either by themselves, or by their Heads. But as it is a Sort of an Alliance we shall have Occasion to treat of it elsewhere,Ch. 15. of this Book. when we explain the Nature and Effects of every Alliance in general; that is, when we come to talk of the Obligations that arise from any Agreement.
XXVI.What Power is granted a Man over his adopted Child, from his voluntary Subjection to him.XXVI. Let us then pass to the Right which one acquires over Persons, by Vertue of a Subjection into which they enter by their own Consent. This Subjection is either private or publick. Private Subjection may be as various as there are various Sorts of Authority or Command. The most reputable Kind of it is Arrogation, by which a1 Person who is his own Master, does so give himself up to another, as to become a Member of his Family, and to depend upon him afterwards, as a Son at the Years of Maturity depends on his Father. A Father likewise sometimes gives his Son to another, who adopts him in this Manner; but he does not thereby transfer to him all his paternal Rights, nor disengage himself from all the Duties to which he stands bound as a Father; for Nature does not permit this; all he can do is to trust his Son to another, who undertakes to maintain him, and whom he substitutes in his own Stead for that Purpose.
XXVII.What Right a Person has over his Slaves.XXVII. 1. The most ignoble and scandalous Kind of Subjection, is that by which a Man offers himself to perfect and utter Slavery; as those amongst the Germans, who at the last Stake ventured their very Liberty upon the Cast of a Die, He that lost, says Tacitus,1voluntarily became a Slave to the Winner. Nay, even amongst the Greeks, as Dion Prusaeensis, in his fifteenth Oration relates, Μύριοι δήπου ἀποδίδονται ἑαυτον̂ς ἐλεύθεροι ὄυτες, ὥστε δουλεύειυ κατὰ συγγραϕὴν, Thousands who are free2oblige themselves by Contract to be Slaves.<210>
2. Now perfect and utter Slavery,3 is that which obliges a Man to serve his Master all his Life long, for Diet and other common Necessaries; which indeed, if it be thus understood, and confined within the Bounds of Nature, has nothing too hard and severe in it; for that perpetual Obligation to Service, isSee Busbeq. Legat. Turc. Ep. 3. recompensed by the Certainty of being always provided for; which those who let themselves out to daily Labour, are often far from being assured of: And from hence does that which Eubulus4 said, frequently happen,
He was willing to stay with them for his Victuals without Wages. And the same Comedian in another Place,
Many that run away from their Service, return of themselves5to their old Manger. Thus too Posidonius the Stoick has observed in his History,6 that there were many People formerly, who, sensible of their own Weakness and Incapacity for getting a Livelihood, voluntarily submitted themselves Slaves to others, ὅπως παρ’ ἐκείνων, &c. That their Masters should provide them Necessaries, and they should, in return, do them all the Service they were able. Others add an Instance of this in the Maryandini; who, for the same Reason, made themselves Slaves7 to the Heracleotae.
XXVIII.How far the Power of Life and Death may be said to be comprehended in this Right.XXVIII. But no Masters, (if we judge by the Rules of full and compleat Justice, or before the Tribunal of Conscience) have the Power of Life and Death over their Slaves: Nor can one Man have any Right to kill another, unless he has committed some capital Crime. Tho’ by the Laws of some Nations, the Master, who upon any Account whatever, kills his Slave, does it with Impunity; as indeed Kings, who have an absolute and uncontrolable Power, may every where do it. Seneca has long before us made this Comparison,1If the Necessity he is under, and the Dread of suffering severely in Case of a Fault, makes it impossible for a Slave to be entitled to any Merit for his Service, the same will be a sufficient Objection to any Plea of Merit in him who has a Prince, and in him who has a General; for, tho’ under a different Denomination, their Authority is the same. Not but that a Slave may undoubtedly be injured by his Master, as the same Seneca2 with Reason asserts, but the Impunity passes for a Right in an improper Sense. It was such a Right or Power that3Solon, and the old Roman Laws, granted Pa-<211>rents over their Children. Thus Sopater, Ἐξη̂ν πατρὶ ὄντι, &c.4Sext. Empiric. Pyrrhon. hypotyp. l. 3. c. 24. § 211. Ed. Fabric.He was allowed, as a Father, to kill his Children. He is allowed it, in Case they have committed any Crime; and indeed the Reason why the Law has indulged a Parent this Privilege, in the Presumption that he would certainly prove a very equitable Judge. And Dion, in his fifteenth Oration, says, that the same Right does prevail, παρὰπολλοɩ̂ς καὶ σϕόδρα εὐνομουμένοις, among several People, and these the most eminent for good Discipline and Constitutions.
XXIX.What the Law of Nature directs about Children born of Slaves.XXIX. 1. Concerning those who are born of Slaves, the Point is more difficult. By the1Roman Laws, and by the Law of Nations in Regard to Prisoners of War, (as we shall shew elsewhere) as the young ones of Beasts, so the Children of Slaves follow the Condition and Circumstances of the Mother: Which, however, is not altogether so agreeable to the Law of Nature, when the Father can by any sufficient Token be discovered. For since among Brutes, the2 Male no less than the Female, takes Care of its Young, it is evident, that the Young do belong as much to the one as the other: And therefore, if the Civil Law had been silent in the Matter, Children would3 follow as much the Father’s Condition as that of the Mother. Let us suppose then, to lessen the Difficulty, that both Parents are Slaves, and let us see whether their Children would be naturally Slaves too. If there were indeed no other Way of maintaining their Children, Parents might with themselves bring their future Progeny into Slavery: Because upon the very same Account, Parents may even sell their free-born Children.
2. But since this Right does naturally rise from mere Necessity,4 it is in no other Circumstances allowed, that Parents should inslave their Children; nor have Masters any other Right over the Children of their Slaves, than as they are to5 find them Victuals and other Necessaries of Life;See Leo Afer, l. 6. de Barca. and therefore, when the Children of Slaves have been a long Time maintained before they are capable of being serviceable to<212> their Master, and their Work then can only answer the Expence of their present Less, l. 5. c. 5. Dub. 5. 1 Cor. vii. 21. Eph. vi. 5. Coloss. iii. 22. 1 Pet. ii. 18. Caus. 17. Qn. 4. C. 37, 38. See B. iii. Ch. 7. § 6. of this Treatise. Maintenance, such Children can never quit their Service, unless they pay what is reasonable for all their former Entertainment. If indeed the Master’s Cruelty be extremely great, it is an Opinion highly probable, that those Slaves, even they whose Slavery was their own Choice, may run away, and in that Manner consult their Safety. For what the Apostles and antient Canons enjoin Slaves, of not leaving their Masters, is6 a general Maxim, and only opposed to the Error of those who rejected every Subjection, both private and publick, as a State inconsistent with the Liberty of Christians.
XXX.Several Sorts of Servitude.XXX. Besides that perfect and utter Slavery, of which we have just been speaking, there are also some imperfect Kinds of Servitude, and those are either for a certain Term of Time, or upon such and such Conditions, or only to do such and such particular Things. Such was the Service of1 Freedmen, who were yet obliged to do some Offices for their Patrons; of2 those who were to continue Slaves no longer than till such and such Articles were performed; of3 those who voluntarily became Slaves to their Creditors till their Debts were paid; of those who were sentenced by a Judge to be Slaves till their Debt was discharged; of4 Husbandmen, who belonged to the Lands given them; the seven Years Service among the Hebrews,Exod. xxi. 2. Lev. xxv. 40. and that Service which was to last till the Jubilee; that of the5Penestae among the Thessalians; that which they call the Service of6Mortmain; and lastly, that of7 hired Servants: All which Differences do depend either upon<213> the Laws, or upon particular Agreements. Those who are born of one Parent who is free, and of another who is a Slave, seem naturally,8 for the Reason above-mentioned, to be subject only to an imperfect Servitude.
XXXI.What Power there is over a People who voluntarily become Subjects. B. i.XXXI. Publick Subjection is that of a whole Nation, who put themselves under the Power and Jurisdiction, either of one Person or of several, or even of another Nation. The Form of such a Subjection we gave you before, in an Instance of Capua. Such another is that of the Collatines,1Do you to me, and to the Roman People, deliver yourselves up,you the Collatine People, your City, your Lands, your Water, your Frontiers, your Temples, your Goods, whatever you have sacred or civil? We do.Ch. 3. § 8.And I accept them. Alluding to which, Plautus,2 in his Amphitryon, says,
The Persians term this,3Giving up Land and Water. But this is a perfect and entire Subjection; there are some other not so absolute, either in Regard to the Manner of enjoying the Sovereignty, or with Respect to the Extent of Power;B. i. Ch. 3. you may learn the several Degrees of them from what we have already said above.
XXXII.What Power over a Person who has forfeited his Liberty by some Crime.XXXII. There is also an involuntary Subjection arising from some Crime or other, and this happens when he1 who has deserved to lose his Liberty, is forced to submit himself to him who has a Right to punish him; and who it is that has such a Right of punishing we shall see by and by. And here not only particular Persons may be thus brought into a particular Subjection; as those at Rome, who did not appear when2 summoned to inlist themselves; and those3 who either gave no Account of their Estate, or gave a false one.4Ch. 20 of this Book. And afterwards, those Women who5 married another’s Slave: But likewise a whole People6 may be brought into Subjection for a publick Crime; with this Difference only, that a Nation’s Slavery is perpetual, for a Succession in the Members of it does no Ways hinder it from being one and the same People still; whereas that Slavery which is<214> inflicted on particular Persons, extends no farther than their own selves, because7 Crimes are personal. But both Sorts of Servitude, either that which is publick or that which is private, may be perfect or imperfect, according to the Degree of the Fault and Punishment.
But of that Slavery, whether publick or private, that is founded on the voluntary Law of Nations, we shall hereafter have Occasion to speak, when we come to mention the Consequences and Effects of War.B. iii. Ch. 7.
[1 ]That is, so that the Person over whom a Right is acquired, was not before dependent on any one; for if he was, the Acquisition is then Derivative, as that made of Goods which before belonged to another. The Author treats of the latter Sort in the following Chapters, both in Regard to Things and Persons.
[2. ]See my first Note on Pufendorf, B. VI. Chap. II. § 4.
[3. ]Seneca maintains, that the Father hath the first Right, over his Children, and the Mother the second, Controv. Lib. III. Controv. XIX (p. 255. Edit. Elziv. 1672.) St. Chrysostom likewise establishes this Inequality, when he says, it is just and reasonable that the Wife should be subject to her Husband, because an Equality of Authority, over the same Persons, produces Strife and Contention. In I. ad Corinth. xi. 3. He elsewhere allows the Wife to be the second Power in a Family; but neither allows her, on one Hand, to claim an Equality of Power, because she is subject to a Head; nor the Husband, on the other, to despise his Wife, as being subject to him, because she is one Body with him. In Ephes. vi. To which he adds a little after, This (the Power of the Wife) is a second Power, attended with Authority, and a great Share of Honour; but still the Husband has somewhat more. St. Augustin, writing to Ecdicia, asks her this Question, Who doth not know that your Son, because born of lawful and honest Wedlock, is more in the Power of his Father than in yours? Epist. CXCIX. Edit. Basil. 1569. One of the Byzantine Historians, speaking of Andronicus Palaeologus and Irene, observes that, among other Reasons, it was urged, that A Father has more Power than a Mother, and that there was no Reason why the Father’s Will, in Regard to his Child, should not take Place, even preferably to that of the Mother.Nicephorus Gregoras, Lib. VII. Concerning the Respect due to a Mother. See Code, Lib. VIII. Tit. XI.VII. De Patriâ Protestate, Leg. IV. Grotius.
[1 ]Politic. Lib. I. Cap. XIII. p. 3111. Edit. Paris.
[2. ]Ethic. Nicom. Lib. III. Cap. IV.
[3. ]The Philosopher considers a Son during that Time as a Part of his Father; whence he infers, that the Father is not allowed to commit any Injustice against him. Ibid. Lib. V. Cap. X.
[4. ]At that Age Children belong to their Parents, in the same Manner as their other Possessions, says Maimonides, Can. Poenitential. Cap. VI. § 2. Grotius.
[5. ]The Author quotes this Passage in Latin only, according to his own Version of it, in the Excerpta ex Tragoed. & Comoed. Graecis, p. 34. In the Original it stands thus,
Coephor. (p.275. Edit. H. Steph.) To which may be added, what is said in the Institutes, Lib. I. Tit. XX. De Atiliano Tutore, &c. 6. viz. It is consonant to the Law of Nature, that Children (impuberes) should be under Guardianship; that thus he who has not arrived to a perfect Age, may be governed by the Care of another.
[6. ]Jus ἐν κτήσει, non ἐν χρήσει. Thus our Author expresses himself. The whole Passage of Plutarch, from whence this Distinction is borrowed, runs thus, Grandeur consists not in the bare Possession of Things, but in the Use of them; for even Infants inherit their Father’s Kingdoms and Authority. De Fortun. Alexandri. Orat. II. p. 337. Tom. II. Edit. Wech.
[7. ]All those Distinctions took Place by the Roman Law; which expressly forbids Women having their Children in their Power. Institut. Lib. I. Cap. XI. De Adoptionib. § 10. See Mr. Noodt’s Observat. Lib. II. Cap. XV. So that the Father alone acquired all the Goods or Estates of his Children, not emancipated, exclusive of some certain Sorts of Goods, which were excepted in Process of Time. See the Interpreters on the Institutes, Lib. II. Cap. IX. Per quas personas nobis acquiritur. Natural Children, or Bastards, were not under the Father’s Power, Such Children as we shall have born from lawful Wedlock, are in our Power. Institut. Lib. I. Tit. IX. De Patriâ potestate, in it. Therefore those who are born from a criminal Conversation, are not in the Father’s Power, &c. Ibid. Tit. X. De Nuptiis, § 12. Whence it follows, that the Father could not appropriate their Goods to himself, because he had that Right only by Vertue of the fatherly Power, established by the Laws.
[1 ]Thus Maimonides explains the Law, which occurs in the Book of Numbers, Chap. xxx. ver. 6. Grotius.
[2. ]See § 10. of this Chapter; and B. III. Chap. XXXIII. § 3. As also what I have said at large on this Subject. Note 2. on Pufendorf, B. III. Chap. VII. § 6. second Edition; and my two Letters against Mr. Du Tremelai, inserted in the Journal des Savans, Ann. 1712, 1713.
[1 ]Jornandes observes, that Parents judge it better that Liberty should be lost than Life; when they sell their children, in Order to have them mercifully provided for, rather than keep them to starve. Hist. Goth. (Cap. XXVI. p. 75. Edit. Vulcan. 1597.) I find the Mexicans had a Law which allowed of this. Grotius.
[2. ]That Law requires the Thing should be done by the Authority of the Magistrates, who should oblige the Purchaser of the Child to make a solemn Promise to keep the Child well, till it was in a Condition of doing him Service. Aelian, Var. Hist. Lib. II. Cap. VII.
[3. ]See Exod. xxi. 7. Levit. xxv. 39. and Deut. xv. 12.
[1 ]Either they are private Matters, in which the King doth not act as King; and in that Case he doth not depend on the Will of his Parents, as being no longer a Member of the Family; or they are of a publick Nature; and then he is much less obliged to consult his Parents on them; since even a Subject, employed in a publick Office, is independent of his Father in what relates to the Execution of that Office, tho’ in other Respects he is under the paternal Power. This is a Decision of the Roman Law, which, notwithstanding the excessive Power it gives Fathers over their Children in other Cases, considers a Son as Master of a Family, when he is made a Magistrate or Guardian.Digest. Lib. I. Tit. VI. De his, qui sui vel alieni Juris sunt, Leg. IX. By the same Law, a Son, as a Magistrate, may even force his Father to such Things as belong to his Jurisdiction. Lib. XXXVI. Tit. I. Ad Senatus consult. Tertull. Leg. XIII. § 5. and Leg. XIV. In like Manner, tho’ a Son always owes his Father Respect, the Father is obliged to submit to him, in what regards the Honour due to his Post. See Pufendorf, B. VI. Chap. II. § 12.
[1 ]Seneca says, that As it is advantageous for young People to be governed, the Law has put over them a Sort of domestick Magistrates, for directing their Conduct. De Benefic. Lib. III. Cap. IX. Grotius.
[2. ]The Roman Lawyers themselves acknowledge, as our Author observes, that this Right of Power over Children is peculiar to the Romans; and that no other Nation has such a Power over them. Instit. Lib. I. Tit. IX. De Patriâ Potestate, § 2. All the Subjects of the Roman Empire had not this Right till after the Constitution of Antoninus Caracalla. See Spanheim’s Orbis Romanus, Exercit. II. Cap. XXIII.
[3. ]See Note 5. on Pufendorf, B. V. Chap. X. §. 8.
[4. ]Pyrrhonic. Hypotypos. Lib. III. (Cap. XXIV.§ 211. Edit. Fabric.) Philo observes, that according to the Roman Laws, a Father was invested with a full Power over his Son. De Legat. ad Caium. (p. 996.) Grotius.
[5. ]On Cap. XXXVII, p. 199. Edit. Heins.
[6. ]Ethic. Nicom. Lib. VIII. Cap. XII.
[1 ]Concerning this whole Matter, consult Pufendorf, who treats of it at large, B. VI. Chap. 1, whereas our Author only slightly touches the principal Questions.
[1 ]St. Chrysostom, speaking of Sarah, says, She endeavoured to comfort her Husband under her Barrenness, with Children by her Handmaid; for such Things were not then forbidden. (Hom. in Genes.) See the same Father on 1 Timothy, III. [and another Passage in his Treatise On Virginity, already quoted, B. I. Chap. II. § 6. Note 5]. St. Augustin speaks of the Custom of having several Wives at the same Time as an innocent Thing, inculpabilis consuetudo. De Doctr. Christ. Lib. III. Cap. XII. and observes, that it was prohibited by no Law. De Civit. Dei, Lib. XVI. Cap. XXXVIII. See also De Doctr. Christ. Lib. III. Cap. XVIII. He elsewhere says, in Cap. XXII. of the same Work, Several Things were then done lawfully which cannot now be done without a Crime.Grotius.
[2. ]Josephus says, It was the Custom of his Country to have several Wives at the same Time. Antiq. Jud. Lib. XVII. Cap. I. Grotius.
[3. ]See Selden, De Uxore Hebraïcâ, Lib. I. Cap. VIII.
[4. ]Josephus relating this, makes Nathan say, that GOD had given David Wives, whom he might justly and lawfully have. (Antiq. Jud. Lib. VII. Cap. VII. p. 227. Edit. Lips.) The Author of the Pesichta Zotertha, says, on Leviticus xviii, it is very well known, that those who pretend a Plurality of Wives was prohibited, do not understand what the Law is. (Fol. 24. Col. 1.) Grotius.
[5. ]Leviticus xxi. 7. Nor was a Priest allowed to marry a Widow, as appears from Verse 14. of the same Chapter. Philo the Jew, (De Monarchiâ, p. 827. Edit. Paris.) And most of the modern Interpreters understand this of the High-Priest, on Account of what goes before, Ver. 10, &c. But that it is spoken of all Priests without Exception, appears both from a Passage in Ezekiel xliv. 22. and from Josephus, both in his Explication of that Law, and in his first Book against Apion. The Law in Question therefore must be connected with the Beginning of the Chapter; so that what is said of the High-Priest, Ver. 10, 11, 12, 13. is to be considered as in a Parenthesis. Grotius.
[6. ]Speaking of Augustus, who, having taken Livia from her Husband, consulted the Priests by Way of Banter, on this Question. Annal. Lib. I. Cap. X. Num. 7.
[7. ]In Order to clear up this Matter, and at the same Time know what was our Author’s Opinion, after the first Edition of this Work, tho’ he has made no Alteration in this Place, it will be proper to add here some of the Reflections, which appear in his Commentary on the New Testament, Matthew v. 32. First then, he observes, that our Lord JESUS CHRIST doth not design, either in this Passage, or in the Rest of his Discourse on the Mount, to abolish any Part of the Mosaic Law; his Intention is only to shew us in what Manner, and in what Case, a good Man may make his Advantage of the Allowance of Divorce, granted by one of the political Regulations of that Law, which was still in Force, at the Time of his Speaking. Consequently, the Question doth not turn on a Cause of Divorce brought before the Judges; for, beside that a Husband, who had a Mind to put away his Wife, was not obliged, according to the Law, to do it in a judiciary Manner; when he accused his Wife of Adultery before the Judges, that was done with a View of having her punished with Death, not of obtaining a Dissolution of Marriage. Thus, when our Lord speaks of Adultery, as a just Cause of Divorce, he supposes either amild and merciful Husband, who is not disposed to bring his Wife to Punishment, how culpable so ever she may be, as was the Case of Joseph in Regard to Mary, before he was able to conceive the miraculous Cause of her Pregnancy: Or, a Husband, who had not sufficient Proofs of his Wife’s Crime to alledge in Court, tho’ he himself was persuaded of her Guilt, or had such Assurance of it as placed it beyond Doubt in his Opinion. On which St. Jerome says, that Whenever there is Adultery, or Suspicion of Adultery, the Wife may be divorced without Scruple. On Matthew XIX. p. 56. Tom. IX. Edit. Basil. 1537. Not that every Imagination of a suspicious Mind doth authorize a Man in Conscience to make Use of this Right; but he is not obliged to stay till he is furnished with all the Proofs necessary in a Court of Justice, and according to the Rigour of the Laws. It is sufficient in this Case, that a just Medium be observed between too credulous Jealousy and stupid Indolence. Theodosius the younger, a Christian Emperor, who frequently consulted the Bishops, fixing the Conjectures of a Wife’s Guilt, according to the Manners of the Age in which he lived, thought it sufficient for authorizing a Divorce, that the Wife went to eat with other Men against her Husband’s Prohibition, or without his Knowledge; that she lay abroad without good Reasons, except at a Father’s or Mother’s House; or appeared at the publick Shows against her Husband’s Will. Justinian added the following Cases, if a Woman designedly caused herself to miscarry; if she bathed with other Men, or talked of Marriage with another Man. See Code, Lib. V. Tit. XVII. De Repudiis, &c. Leg. VIII. and XI. But ought our Saviour’s Words, Saving for the Cause of Adultery, to be taken so rigorously, that this should be the only Reason capable of quieting the Conscience of a Man who puts away his Wife? Those who acknowledge no other, urge the Terms of the Original, employed here, or in the other Evangelists, Παρεκτὸς λόγου πορνείας, ἐκτὸς, εἰ μὴ, &c. But we may understand this Exception, as Origen doth, (Hom. inMatthew VII.) so as to make it contain but one Example of the Cases in which a Divorce is allowed. It is not uncommon, both in human and divine Laws, to specify only the most common Cases, from which we ought to infer others not expressed. See Exod. xxi. 18, 19, 20, 26. Deut. xix. 5. The Matter will be still more plausible, if, as may be done, we explain the Words in St. Matthew v. 32. Παρεκτὸς λόγου πορνείας, Whoever shall put away his Wife, when there is no Cause of Adultery, &c. and if in Chap. xix. 9. instead of εἰ μὶ ἐπὶ πορνείᾳ, as it is in the common Editions, we read μὴ ἐπὶ πορνείᾳ, as it is in that of Complutum, and several Manuscripts used by Dr. Mills; that is, not for Cause of Adultery. For such Sort of Expressions, which the Syriack Version seems to have imitated in the two Passages quoted, rather imply an Example than a Restriction, which still leaves the Terms intirely general. But supposing a real Exception here, the Sense will be still the same: For in all Laws, not excepting the most odious, such as penal Laws, what is established by the Legislator takes Place in all Cases, where the Reason is the same; and favourable Laws are applied to like Cases. If we rightly consider the Nature of all the Precepts of JESUS CHRIST, we shall find that Charity is their Principle and Perfection: Now Charity requires we should procure the Advantage of others, but so as to think of our own, and not be cruel to ourselves, as St. Paul teaches, 2 Cor. viii 13. It would be barbarous and inhuman to put away a Wife for all Sorts of Reasons; as the Pagans themselves have acknowledged. See Aulus Gellius, Noct. Attic. Lib. I. Cap. XVII. How much more is it the Duty of a Christian, who makes Profession of Patience, and who is commanded to love his greatest Enemies, not rashly to conceive an implacable Resentment against his Wife? But then, on the other Hand, when, for Example, she becomes guilty of Adultery, it would not be just that he should be reduced to the hard Necessity of keeping such a Wife. The Thing speaks for itself; and this perhaps is the Reason why St. Mark, Chap. x. 11. and St. Paul, 1. Cor. vii. 10. repeating the Precept under Consideration, express it in a general Manner, without adding any Exception; supposing, in my Opinion, that such Restrictions are tacitly included in the most general Laws, by Vertue of natural Equity. And may not the same Equity authorize a Divorce in other less frequent Cases, and which, therefore, it was not so necessary to mention? Let us suppose that a Woman has attempted to poison her Husband, or killed the Children she had by him; will any Man say, that Crimes of this Nature are not as contrary to the End of Matrimony as Adultery? But Matrimony was not instituted only for the Propagation of Mankind; the mutual Assistance which is expected from that Union, is certainly to be considered as something in that State; and nothing can be more contrary to the Engagements of so close a Society, than an Attempt on the Life of one of the married Persons. In the Affair of a Divorce, the Romans considered whether the Conduct of a Wife was supportable, or not. Perhaps our Saviour had this Distinction in View; and therefore expressed the insupportable Behaviour by the Example of the most common and best known Case. The Christian Emperors, of whom we have spoken, add to Adultery, and such Actions as give just Suspicions of that Crime, some others, which, being proved, authorize a Husband to put away his Wife with Impunity: Even tho’ he had not sufficient Proof, he was not absolutely forbid to put her away; but it was left to his Choice, either to keep her, or restore her Portion, or lose what he had settled on her at Marriage. The Jewish Wives were not allowed to separate from their Husbands, without the Husband’s Consent; Our Saviour therefore says nothing tending toward giving them that Permission, even tho’ the Husband had committed Adultery. But, by the Roman Laws, the Husband and Wife had an equal Right in this Case; for which Reason St. Paul allows it, 1 Cor. vii. 15. Justin Martyr, who lived near the Times of the Apostles, speaking to the Roman Senate, commends a Christian Woman, who taking the Benefit of the Roman Laws, left her Husband on the Account of his Debaucheries, That she might not partake of his Crimes by remaining and cohabiting with him. Apol. 11. § 3. Edit. Oxon. But the same Father adds, that she did not proceed to this Extremity, till she had in vain done all in her Power for reclaiming her Husband. And if we thoroughly examine what St. Paul says in the Chapter last quoted, we shall be convinced that our Saviour’s Words are to be understood only of the Marriage of two Christians; for it is in Regard to such that the Apostle says he hath a Command from the LORD: As to others, he expressly declares, that the LORD had given no Orders about them; as St. Augustin observes, Epist. LXXXIX. In Reality, among Christians, even tho’ one of the married Persons has committed a great Fault, the other ought not early to despair of a Reformation, while the criminal Person remains in the Profession of Christianity. As to what our Saviour says, that he who puts away his Wife for some slight Reason, causeth her to commit Adultery; the Term Μοιχα̂σθαι in the Original, does not properly signify Adultery; it stands for all Sort of Immodesty in general, and most commonly for simple Fornication; so that, if it is rightly translated Adultery, where the Scripture speaks of a married Woman, it does not thence follow, that it is to be so understood in this Place, where our Saviour speaks of a Woman divorced, who, consequently, was no longer tied to her Husband, according to the Law of Moses: His Meaning therefore is, that a Man who puts away his Wife for slight Reasons, thereby exposes her, as much as in him lies, to the Danger of leading an abandoned Life, because divorced Wives seldom find other Husbands. St. Ambrose had this Thought, when he said, How dangerous is it to expose the frail Age of a young Woman to the World! On Luke XVI. Lib. VIII. p. 1754. Edit. Paris. 1569. In the following Words, And he who shall marry the divorced Woman, committeth Adultery, our Saviour still speaks of a Woman divorced by her Husband, remaining a Christian, and consequently, whose Reformation may be hoped; for the Law of Moses being then in Force, as has been observed, it would have been too severe to treat all who should marry a divorced Wife as Adulterers; supposing, for Example, such a Woman’s Virtue being in Danger, a Man married her out of Compassion, would not this rather have been a commendable Action? We are therefore to understand the Words of JESUS CHRIST, as spoken of him, who marries a divorced Woman, before all Means are tried for reconciling her with her Husband, as the Apostle St. Paul directs, 1 Cor. vii. 11. or, which is still worse, of those who falling in Love with other Men’s Wives, endeavoured to get them into their Hands by a Divorce. To this relates what our Saviour says, Matt. xix. 9. where he explains himself more at large, He who shall put away his Wife, and marry another, &c. For both he who marries a divorced Woman, thereby hinders her from returning to her Husband, who cannot after that take her again if he would; and the Husband of the divorced Woman, as soon as he marries another, gives Reason to believe he was not disposed to receive the former again, and thus gives her an Occasion, as far as in him lies, to abandon herself to an immodest Life, or engage with another Husband; for thus we are to understand the Word μοιχα̂ται, which is rendered committeth Adultery; but which ought to signify the same as ποιεɩ̂ μοιχα̂σθαι, maketh her commit Adultery in the parallel Text of the same Evangelist, according to the Stile of the Hebrews, who directly attribute to any one what he gives Occasion to, by some Action of his own. See Rom. viii. 26. Galat. iv. 6. Besides, when St. Paul says, 1 Cor. vii. 39. that The Wife is bound by the Law as long as her Husband liveth, he doth not there speak of a Divorce. The Apostle designs only to prove, that the Tie of Marriage doth not subsist after the Husband’s Death; and therefore the Woman may then marry again. The same Apostle saying the same Thing, Rom. vii. 1, 2. tho’ with a different View, speaks of the Law of Moses: Now it is certain, that, according to the Law of Moses, a Woman was at Liberty to marry again when she had been divorced, and consequently, before the Death of her Husband. This is the Substance of what our Author says, in his Notes on the New Testament. Whence it appears, that his Notions were not entirely the same, as when he wrote the Work before us, tho’ he since made no Alteration in this Place. From all we have seen it follows, that in the Passages of the Gospel which he quotes in his Margin, to shew that our Saviour JESUS CHRIST prohibited Polygamy by one of his Laws, he speaks only of a Divorce; and that in Opposition to the false Notions of the Jews, who thought it allowable in Conscience for every Cause.Matt. xix. 3. Thus we find that our Author, in his Treatise of The Truth of the Christian Religion, first published in 1639; that is, about two Years before his Notes on the New Testament, when he speaks of the Marriage of one Man and one Woman, having observed, that There were but few Nations among the Pagans where Men were contented with one Wife, like the Germans and Romans; adds only, that the Christians observe this Manner of Marrying, Lib. II. § 13. And in the Notes he quotes no one Passage of the Gospel, but only those Words of Saint Paul, 1 Cor. vii. 4. The Wife hath not Power of her own Body, but the Husband; and likewise the Husband hath not the Power of his own Body, but the Wife. In his posthumous Notes on the Epistles, he explains those Words agreeably to the Sequel of the Discourse, as implying only the Right which a Wife has to require that her Husband refuse her not the conjugal Duty; because by Vertue of Marriage she enters into a Society with him, which demands the reciprocal Use of their Bodies: But it doth not thence follow, that a Husband may not have more than one Wife; for Societies are not always formed on an equal Foot. So that our Author here applies the Words of St. Paul, by Way of Accommodation only, and to shew that Christians have renounced Polygamy, rather with a View of following the Spirit and Genius of the Gospel, which directs us to avoid what may easily be abused, than that of obeying any express Law of our Saviour or his Apostles. See Mr. Le Clerc, Hist. Eccles. Prolegom. Sect. III. Cap. IV. § 5. Num. 9. p. 162. It is not at all probable, that JESUS CHRIST designed to oblige such as had several Wives before they became his Disciples, to dismiss them all but one. And when the political Laws of Moses were tacitly abrogated by the Destruction of Jerusalem, and the Jewish Government; as the Jews and Christians were dispersed through the Roman Empire, where a Plurality of Wives was not allowed; it was not to be apprehended that the Christians would revive the Practice of the Jewish Nation, which is yet less to be feared at present, since all the Laws both Civil and Ecclesiastical have so long prohibited Polygamy.
[9. ]Institut. Divin. Lib. VI. Cap. XXIII. That Father adds in the same Chapter, that A mutual Fidelity is to be observed; and that the Wife is to be taught Chastity, by (her Husband’s) Example, it being unjust to require that of her, which he himself cannot perform. We have the same Thought in Gregory Nazianzen, How do you demand, and make no Return? [Orat. XXXI. p. 500. Edit. Colon. seu Lips.] St. Jerome observes, that The Laws of CHRIST differ from the Laws of the Emperors; and the Precepts of St.Paulfrom those ofPapinianus. The latter give a Loose to the Debaucheries of Men, and condemning only Fornication with free Women, and Adultery, allow of carnal Conversation with Slaves in publick Brothels; as if the Quality of the Person, not the Will made the Crime. Among us Men have no more Liberty than Women; but both are subject to the same Laws. Ad Ocean. (Tom. I. p. 198. Edit. Basil.) Grotius.
[10. ]Several wise Men of Antiquity have likewise preferred the Marriage of one Man to one Woman to Polygamy. Euripides maintains, that It is not decent for one Man to command two Wives; and that, Whoever would have his Family well governed, ought to be content with one Partner of his Bed. Andoromach. (ver. 177, &c.) And in the same Tragedy, the Chorus says, I shall never approve of two Beds at the same Time, or the Offspring of two Mothers, both living, which occasion Contention and dreadful Discontents in a Family. Let a Man be content with one chast Partner of his Bed. In States Men are not better governed by two than by one: The Multiplicity of Masters make the Yoke heavier, and causes Seditions among the Citizens. The Muses themselves take a Pleasure in raising Quarrels between two Poets. At Sea it is better that one Pilot, tho’less skillful, should steer the Ship, than that it should be conducted by two, or a Company of able Hands. Let one Power govern the House and the State, if you would enjoy Tranquillity and Happiness. Ver. 464, &c. In Plautus’s Mercator, one of the Actresses reasons thus, A Wife, if she is honest, is content with one Husband; why then should not a Husband be satisfied with one Wife? (Act. IV. Scen. VI. ver. 8.) Grotius.
[11. ]Thus St. Ambrose, speaking of Polygamy, says, that GOD, in the terrestrial Paradise approved of the Marriage of one with one, but without condemning the contrary Practice; because Sarah said to Abraham, Behold now the LORD hath restrained me from Bearing: I pray thee go in unto my Maid; it may be that I may obtain Children from her. And Abraham hearkened to the Voice of Sarah, &c. Lib. I. De Abraham. Cap. IV. Gratian has inserted this Passage, and another to the same Purpose, in the Canon Law, Caus. XXXII. Quest. IV. (C. III.) Cujus arbitrium aliqua sequatur, &c.Grotius.
[12. ]De morib. German. Cap. XVIII. The Historian adds, Except a small Number, who marry several Wives, not out of Lust, but for State. From which Words it appears, that tho’ this Practice was uncommon among the Germans, there were yet some Examples of it; so that it was rather a Fashion, than a Thing looked on as unlawful.
[13. ]See Brisson, De Regno Persarum, Lib. II. p. 229, &c. Edit. Sylburg. 1595.
[14. ]Strabo, Geogr. Lib. XV. p. 1041. Edit. Amst. (714. Paris.)
[15. ]To these add the Thracians, concerning whom we have some Verses of Menander. [In Strabo, Lib. VII. p. 455, 456. Edit. Amst. 297 Paris.] and of Euripides, in his Andromache, (v. 214, &c.) Grotius.
[16. ]Among the Aegyptians the Priests marry but one Wife; but other Men as many as they please.Diodorus Siculus, Lib. I. Cap. LXXXI p. 51; Edit. H. Steph. Our Author, who quotes this Passage in his Margin, refers likewise, in a little Note, to Herodian, Lib. II. He certainly means Herodotus; for the former Historian says nothing on this Subject; and the latter treats at large of the Manners of the Aegyptians, in his second Book. But then he tells us the direct contrary; for, having spoken of the Aegyptians, who live beyond the Marshes, he remarks, that Those who lived in the Marshes observe the same Customs as the other Aegyptians; and among others, that of each having but one Wife, like the Grecians. Cap. XCII. Let the Learned consider how to reconcile these two Historians, or which of them is to be credited.
[17. ]Athenaeus, Lib. XIII. Cap. I.
[18. ]See his Life in Diogenes Laertius, Lib. II. § 26. Edit. Amst.
[19. ]As Euripides, quoted by Aulus Gellius, Noct. Attic. Lib. XV. Cap. XX.
[20. ]Above five hundred Years. Spurius Carvilius Ruga was the first who divorced his Wife on the Account of Barrenness. See Dionysius Halicarnassensis, Antiq. Rom. Lib. II. Cap. XXV. p. 93. Edit. Oxon. (96. Sylburg.) Valerius Maximus, Lib. II. Cap. I. Num. 4. Aulus Gellius, Noct. Attic. Lib. IV. Cap. III. and Lib. XVII. Cap. XXI. and their Commentators.
[21. ]Aulus Gellius, Noct. Attic. Lib. X. Cap. XV.
[22. ][[The footnote number is missing in the English text and has been restored from the Latin. St. Augustin says, It is objected against Jacob, tha the had four Wives; to which he answers, which, when a Custom, was not a Crime. Lib. XXII. contra Faustum. Cap. XLVII. Gratian has inserted this Passage in the Canon Law, (Caus. XXXII. Quaest. IV. Can. VII.) but has put the Name of St. Ambrose instead of that of the true Author. Grotius.
[1 ]See § 3. of this Chapter, Note 2.
[2. ]Ea, in quibus vitium durat in effectu. Our Author, in his Note on Matthew xxii. 30. where he likewise treats of this Subject, expresses himself thus, Ubi nulla turpitudo est permanens. We shall explain his Thought by a familiar Example. He who possesses another Man’s Goods, which he has acquired unjustly, doth ill, not only in stealing, or otherwise seizing them, but also in keeping them; so that, every Time he makes Use of such Goods which do not lawfully belong to him, he commits an Act of Injustice. The Turpitude is in this Case fixed, as I may say, to the Thing itself, and every Act of the unjust Possessor in Regard to it. But it is not the same in Relation to a Son, who being of sufficient Age for regulating his own Conduct, marries without the Consent of his Parents. He may have done ill in taking this Step, but the Moment the Marriage is concluded and agreed, the Evil that there may have been in the Engagement ceases, if there be nothing else that renders it criminal or dishonest. The Consent of Parents is an exterior Thing, which doth not enter into the Essence of the Contract of Marriage, except some Civil Law gives it that Force.
[3. ]The Roman Law speaks thus on this Occasion, Yet so that, if they are under the Power of Parents, they gain their Consent. For both civil and natural Reason speak the Necessity of so doing. Institut. Lib. I. Tit. X. De Nuptiis.
[4. ]Nay, farther, the Will of the Grandfather, if he be free, has in this Case more Force than the Will of the Father who is a Slave. This is determined by the Canon Law, Caus. XXXII. Quaest. III. Canon unic.Grotius.
[5. ]An emancipated Son may marry, even without his Father’s Consent, and his Son shall inherit his Estate.Digest. Lib. XXIII. Tit. II. De ritu nuptiarum, Leg. XXV.
[6. ]If a Grandson marries, the Consent of his Father is also requisite; but the Will and Authority of the Grandfather alone is sufficient for the Marriage of a Grand-Daughter. Ibid. Leg. XVI. § 1. See Cujas, Recit. in Jul. Paul. Tom. V. Opp. Edit. Fabrott. and Antonius Fabrius. Jurisprud. Papinian, Tit. IX. Princip. IV. Illat. 2, & 4.
[7. ]For it is not suitable to the Modesty of a Virgin to chuse a Husband, says St. Ambrose, De Abraham. Lib. I. Cap. ult. This Sentence is by Gratian inserted in the Canon Law, Caus. XXXII. Quaest. II. (Can. XIII.) Donatus, in his Commentary on Terence’s Andria, (Act. IV. Scen. IV. ver. 2.) observes, that the Word Jubeam is properly used in that Place, because the chief Power, in Regard to the Marriage of a young Woman, is in her Father.Euripides makes Hermione say, Her Father shall have the Care of her Marriage, and that, it is not her Business to make a Choice. (Androm. ver. 987.) Hero tells Leander, that She could not marry him, because her Parents were unwilling.Musaeus, (ver. 179, 180.) Grotius.
[8. ]Declam. CCLVII. p. 470. Edit. Burman. Our Author, in a Note on the Gospels, which I have already quoted, says, that in Reality Children are in nothing obliged to shew more Deference to the Will of their Parents, than when their Marriage is concerned; as Aristotle somewhere observes. But adds, that there are some Circumstances, which form a reasonable Exception in this Case. If Parents, out of a Principle of Hatred, Covetousness, or influenced by some other Passion, are wanting in their Duty to their Children, would it be just that they should therefore be deprived of their natural Liberty? By the Roman Law, if a Daughter, twenty-five Years old, married without the Consent of her Parents, who delayed to provide her with a Husband, or even sinned against her own Body, she was reckoned innocent in Regard to them, who were not allowed to disinherit her on that Account. Novell. CXV. Cap. III. § 11. We know likewise what Care St. Paul would have taken for avoiding the Inconveniencies of Incontinence, 1 Cor. vii. 9. See Pufendorf, B. VI. Chap. II. Paragr. last.
[9. ]Engraphius, in his Comment on the Andria, Act. I. Scen. V. says, It is evident, that Children may follow their own Will in disposing of themselves in Marriage. And Cassiodore thinks it hard to lay a Restraint in the Affair of Matrimony, from which Children are to be born. Variar. Lib. VII. Cap. XL. Grotius.
[1 ]See Note 7. on Paragraph 9. of this Chapter.
[2. ]Consult the Note last referred to.
[1 ]We may be convinced of this, on reading the subtile Reasons offered for it by two Authors, who have taken great Pains to establish Principles drawn from the Law of Nature, for the Solution of this Question. The first is Moses Amyraut, in a French Treatise, entitled, Considerations on the Laws by which Nature has regulated Marriages, printed at Saumur, Anno 1648: The other is Lambert Velthuysen, in his Tractatus Moralis de naturali Pudore, & dignitate Hominis; in quo agitur de Incestu, Scortatione, Voto coelibatus, Conjugio, Adulterio, Poligamia, & Divortiis, &c. Tom. I. of his Works, printed at Rotterdam in 1680. See also a Dissertation by Mr. Thomasius, De fundamentorum definiendi causas matrimoniales hactenus receptorum insufficientia; printed at Hall in Saxony, 1698.
[2. ]But why do not near Relations marry? Is it with a View of multiplying Alliances by Inter-marriages? Quaest. Rom. Quaest. CVIII. p. 289. Tom. II. Edit. Wech.
[3. ]For a strict Regard has been had for Charity, that Men, to whom Concord is both useful and honourable, might be united by the Tie of a Variety of Friendships; and not that one Man should have several Wives in one Family, but that the Women should be dispersed among several Families for the improvement and strengthening of a social Life. De Civit. Dei. Lib. XV. Cap. XVI. This Passage is inserted in the Canon Law, Caus. XXXV. Quaest. I. Can. l.
[4. ]If the Deceased left a Brother, he was obliged to marry the Widow. Deut. xxv. 5. But in other Cases the Law forbids marrying a Brother-in-Law. Levit. xviii. 16.
[5. ]See Demosthenes’s Orat. ad Leochar. as also the Rhetorician Curius Fortunatianus, (Art. Rhet. Schol. Lib. I. p. 49 inter Antiq. Rhet. Latin. Edit. Paris. 1599.) and Donatus, on Terence, Phormio, Act. I. Scen. II. (v. 75. and Adelph. Act. IV. Scen. V. ver. 17, 18.) Grotius.
[6. ]See our Author’s Note on Matt. i. 16. and Samuel Petit. Leg. Attic. Lib. VI. Tit. I.
[7. ]The Question turns on Inheritance of Lands, and the nearest Relation was obliged to marry such Heiresses. See Numb. xxxvi. 8.
[8. ]See Pufendorf, B. VI. Chap. I. § 32. Note 2.
[9. ]Digest. Lib. XXIII. Tit. II. De Ritu Nuptiarum, Leg. XIV. § 3. Philo the Jew reasons very well on this Subject, when he says, It is a most enormous Crime to defile a deceased Father’s Bed, which ought to be kept untouched, as a Thing sacred: To pay no Respect to the Age and Name of a Mother: To be the Son and Husband of the same Woman, and the Father and Brother of her Children. De specialibus Legib. (p. 778.) Grotius.
[10. ]See Plutarch, De Stoicorum repugnantiis, p. 1044, 1045. Tom. II. Edit. Wech.
[11. ]Digest. Lib. XXIII. Tit. II. De ritu Nuptiarum, Leg. LXVIII. See likewise Lib. XLVIII. Tit. V. Ad Leg. Jul. de Adult. &c. Leg. XXXVIII. § 2.
[12. ]The Philosopher says he is sensible, that Those who offend against this Law, violate many others. Memorabil. Socrat. Lib. IV. Cap. IV. § 20.
[13. ]Philo observes, that GOD punished them for this Crime with perpetual Wars, and the horrible Spectacle of Brothers killing one another. (De special. Leg. p. 779. Edit. Paris.) St. Jerome attributes the same Crime to the Medes, Indians, and Ethiopians. Lib. II. advers. Jovinian. (p. 75. Tom. II. Edit. Basil.) In the Andromache of Euripides, Hermione speaks of this Custom as generally established among the Barbarians; and adds, that They spare not the Blood of Persons the most dear to them, no Law prohibiting any of those Acts, (ver. 173, &c.) Grotius.
[14. ]Michael Ephes, in Ethic. Nicom. V. 10.
[15. ]Here our Author mistakes one Pythagorean for another. This was the Saying of Hipparchus, as recorded by Stobaeus, in his Opuscul. Mytholog. Physic. Ethic. Amstel. 1688. p. 670.
[16. ]Pharsal. Lib. VIII. ver. 402, &c.
[17. ]Ibid. ver. 409, 410.
[18. ]Memorab. Socrat. Lib. IV. Cap. IV. § 22.
[19. ]After having debauched innumerable Virgins, and abused Matrons, has Jupiter conceived an infamous Passion, even for his own Mother? &c. Adv. Gentes, Lib. V. p. 161, 162. Edit. Salmas. 1651.
[20. ]Pliny speaks of a Horse, which, being made to leap its Mother, ran away affrighted as soon as he knew what he had done; and of another which in the same Case fell on the Groom; from which the Historian concludes, that Even Beasts have some Knowledge of the Degrees of Kindred. Hist. Nat. Lib. VIII. Cap. XLII. We find something of the same Nature in Varro, De Re Rust. Lib. II. Cap. VII. in Antigonus Carystius, De mirabil. (Cap. LIX.) and in Aristotle’s Treatise, which bears the same Title, (p. 1150. Tom. I. Edit. Paris.)Grotius.
[21. ]Ver. 914, 915.
[1 ]But the critical and well grounded Remark, made by our Author in the following Paragraph, destroys the whole Force of the Consequence here drawn. For if it be once acknowledged, that some of the Things prohibited in this Chapter of Leviticus, were not Sins in the Canaanites, tho’ the general Term all is used, when the Question turns on such or such a Degree of Consanguinity or Affinity, if we see nothing in it that renders it unlawful by the Law of Nature, we may reasonably doubt whether it be not one of those which ought to be excepted; so that it cannot thence be inferred, that it was forbidden by a divine, positive, and universal Law; the Publication of such a Law is in itself very difficult, not to say impossible to prove. For an uncertain Tradition doth not to me seem sufficient for obliging Men to receive a Thing, as having the Force of Law. I should rather say, that the Vices of the Canaanites, for which Moses declares GOD would punish them, did not consist so much in incestuous Marriages, as in an unbridled Debauchery, which made them transgress almost every Law of Marriage, and put them on satisfying their carnal Desires with the first Persons they met, such as commonly are those with whom one has some Relation or Affinity, and with whom, on that Account, one converses most. Thus the incestuous Corinthian had his Father’s Wife, 1 Cor. v. 1. not that he was married to his Mother-in-Law, which the Laws probably did not allow, but because he lived with her as if she had been his Wife, either after his Father’s Death, or after she had been divorced. Besides, it is possible that the Canaanites might think, no Matter on what Grounds, that Marriage, in most of the Degrees here mentioned, was unlawful, or even prohibited by their Laws; and this was sufficient to render them culpable, and deserving of the Chastisements of the Divine Vengeance, even tho’ it be supposed, that some of those Degrees have nothing in themselves which makes Marriage unlawful according to the Law of Nature alone.
[2. ]Tertullian supposes it, when he says, I do not maintain, that, according to the Law of the Creator, a Man is not allowed to have his Father’s Wife. Let him in this Case follow the religious Discipline of all Nations. Adv. Marcion. Lib. V. (Cap. VII.) Grotius.
Let the Man who sets a Mother-in-Law over his Children, live without Honour and inglorious among his fellow Citizens. The following Lines contain the Reason of this Censure; on which see Pufendorf’s Reflection, B. VI. Chap. I. § 7. as also, for the Manner of reading the Passage, Dr. Bentley’s Dissertation on Phalaris’s Epistles, p. 374, 375. I have found what gave Occasion to this Mistake, Stobaeus thus expresses the Law of Charondas, in Prose, Ὁ μητρυιὰν ἐπιγαμω̂ν, μὴ εὐδόξειτω· ἀλλ’ ὀνειδιζέσθω, ὥσπερ αἴτιος ὢν οἰκείαις διαστάσεως. Serm. XLIV. The first Words literally signify, A Man who marries a Mother-in-Law. Whereupon our Author, probably deceived by his Memory, which did not retain the Sequel of the Discourse, imagined the Greek Writer was speaking of a Man who marries his Mother-in-Law; whereas the Sense is, He who marries a Woman, who thus becomes a Mother-in-Law to his Children by his first Wife; as Alestes expresses himself in Euripides,
Our Author here quotes Lysias instead of Antigonus, who has those very Words, in Orat. I. p. 235. Edit. Wech. 1619.
[3. ]Philo the Jew says on this Occasion, Tho’ the Parts are divided, they retain the Right of Fraternity, and are joined by Relation as a natural Tie.Grotius.
[4. ]The People of Peru and Mexico abstained from the Marriage of Relations thus far. Grotius.
[5. ]But this Tradition of Precepts delivered to Adam or Noah is very uncertain, as I have already observed elsewhere.
[6. ]For neither do we any where find the Law, by Vertue of which Judah would have had Thamar burnt. Gen. xxxviii. 24. Thus Judith says the Shechemites were justly slain for ravishing a Virgin, Chap. ix. 2. and Jacob cursed Reuben for the Incest he had committed. Grotius.
[7. ]Cap. VII.
[8. ]It is said the Aegyptians, contrary to the common Custom of all Nations, made a Law that Brothers and Sisters should marry, in Imitation of Isis. Lib. I. Cap. XXVII. p. 16. Edit. H. Steph.
[9. ]This Passage is found in a Fragment preserved by St. Augustin, De Civ. Dei. Lib. VI. Cap. X.
[10. ]Plato adds, και αἰσχρω̂ν αἰ̂σχισα, And the most detestable of all Things. De Legib. Lib. VIII. p. 838. Tom. II. Edit. H. Steph. See my tenth Note on Pufendorf, B. I. Chap. II. § 6.
[11. ]See the Chaldee Paraphrast on the Text. The Lacedemonians and Athenians made a bad Distinction in this Case, and that in several Manners. Grotius.
[1 ]Our Author’s Meaning is, that since the Law is thus particular, as to the several Sorts of Sisters with whom it forbids Marriage, this is a Proof that in those Places where it doth not thus specify such Degrees as have something near those here mentioned, we are not, merely on Account of an Analogy, to extend it to what is not expressed. In Reality, as most of the Things in Question are in themselves in different, by the Consession of the most rigid Doctors, the Number of the Degrees expressly prohibited, is so large, that Care should be taken not to multiply them by Conjectures, which are often very slender, which would be laying an unreasonable Restraint on the natural Liberty of Men.
[2. ]The Jewish Historian is of Opinion, that Sarah was thus related to Abraham, (Antiq. Jud. Lib. I. Cap. XII.) The same Author gives us an Instance of such a Marriage since the Law of Moses, in the Person of Herod, who married his Niece Mariamne, and promised his Daughter to his Brother Pheroras. See Antiq. Jud. Lib. XIV. and XVI. Andromeda had been promised to Phineus, her Uncle. Ovid, Metamorph. Lib. V. (ver. 10.) Such Marriages were prohibited among the Romans, before the Reign of Claudius. That Emperor allowed of them; Nerva renewed the Prohibition; and Heraclius removed it again. Grotius.
[3. ]Annal. Lib. XII. Cap. VI. Num. 4.
[4. ]I find nothing on the Subject in that Orator. It is very probable our Author has put one Name instead of another; for we have a very plain Example of this Kind in Demosthenes’s Oration against Leochares, where it is related that Midylides proposed marrying his Daughter Clitomache to his Brother Archiades, who declined the Offer, because he was not disposed to marry. p. 671. Edit. Basil. 1572: which evidently supposes such Matches allowable at that Time. The same Orator elsewhere speaks of one who married his Sister’s Daughter. Orat. in Neaeran. p. 517. Nor are we to be surprized, that this Degree was not prohibited at Athens, where a Man was allowed to marry his Father’s Sister. See Potter. Archeol. Graec. Lib. IV. Cap. XI. where he likewise observes, that at Lacedemon Marriages with collateral Relations, in the second Degree, were in Use; on which he produces the Example of Anaxandrides, who married his Sister’s Daughter, as Herodotus relates, Lib. V. Cap. XXXIX.
[5. ]He says, that Lysias married the Daughter of his Brother Branchylus. X. Orator. Vit. p. 836. Tom. II. Edit. Wech.
[6. ]In the Latin Version we read a Cousin-German (Consobrina) instead of a Niece. Can. XVIII. but the Greek has ἀδελϕίδην, a Sister’s Daughter.
[7. ]The Generality of the Jewish Doctors understood them thus. See Selden, De Jure Nat. & Gent. juxta Hebr. Lib. V. Cap. XI.
[8. ]De Civit. Dei. Lib. XV. Cap. XVI. The Poet Aeschylus, speaking of the Danaids, calls Marriages between Cousin-Germans, Unlawful Conjunctions, by which the Race is defiled. (Supplic. p. 309, 315. Edit. H. Steph.) But the Scholiast adds, (in his Observations on the former of those Passages) that they were unlawful, because the Fathers of the Virgins were alive; as if they would have been lawful after their Death, by Vertue of the Law concerning sole Heiresses. Livy makes Spurius Ligustinus, a Roman Citizen, say, He had married his Father’s Brother’s Daughter. (Lib. XLII. Cap. XXXIV. Num. 3.) See also Plautus, Paenul. (Act. V. Scen. III. ver. 37.) Grotius.
[9. ]This we learn from Aurelius Victor, who tells us, that Prince had so great a Regard for Modesty and Chastity, that he prohibited the Marriages of Cousin-Germans, on the same Foot with those of Sisters. (De Vit. & Morib. Imp. Rom. Cap. XLVIII. Num. 10. Edit. Pitisc.) Libanius also mentions this Law. Orat. de Angariis. We have in the Theodosian Code, a like Law, made by Arcadius and Honorius, Lib. III. Tit. XII. De Incest. Nupt. Leg. III. It is well known, however, that the Emperor granted a Dispensation for such Marriages; as appears from another Law in the same Code, Lib. III. Tit. X. Si Nuptiae in Rescripto petantur, Leg. unic. The Kings of the Goths reserved to themselves the Right of dispensing in such a Degree as we see in Cassiodorus, who gives the Form of the Dispensation, Var. Lib. VII. Ep. XLVL. Grotius.
[10. ]The Council of Agde, after an Enumeration of prohibited Marriages, and, among others, that of a Man with his Brother’s Widow, adds, Which we at present prohibit, in such a Manner as not to dissolve those already contracted. This Decision is inserted in the Canon Law, Caus. XXXV. Quaest II. III. Can. VIII. Thus the Lawyer Paul observes, that Tho’ the Law forbids Contracts of Matrimony without the Consent of the Father, such Contracts, when made, are not dissolved. Recept. Sentent. Lib. II. Tit. XIX. § 2. Except it may be said, that the last Words are an Addition of Anianus.Tertullian, speaking of Marriages contracted, with Persons, not Christians, says, The LORD rather requires that such Marriages should not be contracted, than that they should be dissolved. Lib. II. ad Uxorem. (Cap. II. See § 16. of this Chapter). Grotius.
[11. ]In the first Edition we have the Addition of those Words, And even tho’ it doth, the Nullity regards only the Acts of such as are subject to the Law, that it may lay a Constraint on them; for the Power of annulling is a Sort of Constraint. As the Paragraph ended with these Words, it is very probable that the Printers having copied the Examples of the two preceding Periods, which are an Addition that the Author had undoubtedly written in the Margin, passed on to the following Paragraph.
[12. ]Because the Canons decree the same Thing in Regard to two Sisters, as they do in Regard to two Brothers. Lex Longob. Lib. II. Cap. VIII. 13. Grotius.
[1 ]See Pufendorf, B. VI. Chap. I. § the last; and a Dissertation by Mr. Thomasius, De Concubinatu, printed at Hall in 1713.
[2. ]Contubernium. (See also B. I. Chap III. § 4.) The Cohabitation of Slaves was however called a Marriage in Greece, at Carthage, and in Apulia. See Plautus, in the Prologue to the Casina. It is allowed the same Appellation in the Laws of the Lombards, Lib. II. Tit. XII. 10, and XIII. 3 as also in the Salic Law, Tit. XIV. § 11. But among the Jews such Marriages were not good and valid, but when the Master consented to them; as is observed by the Rabbies, on Exodus xxi. where they are mentioned. The same Regulation obtained among the Greek Christians, as it appears from St. Basil’s Canons. We see also in Cassiodore, that those who were desirous of marrying a Woman of a Condition inferior to themselves, commonly asked the Prince’s Leave for so doing. Var. Lib. VII. Cap. XL. Grotius.
[3. ]In the Comedy of the Birds, where Pisthaterus calls Hercules a Bastard (νόθος) because he was born of a foreign Woman ver. 1649, 1650.
[4. ]He produces the Law made by Pericles, the Athenian General, by which All such as were not born of a Father and Mother, both Citizens, should be excluded from the Government of the Common wealth: And adds, that Pericles himself suffered by this Law, for, his two legitimate Sons being dead, he had only Bastards remaining. Var. Hist. Lib. VI. Cap. X.
[5. ]On Aeneid VII. 284.
[6. ]Cap. XVII. This is inserted in the Canon Law, Distinct XXXIV. Cap. IV. And the Council, from which it is quoted, was held in the Year CCCC. See the third and last Memoir in Favour of the legitimated Princes of France, in Tome IV. of The General Collection of Pieces relating to the Affair of the legitimate and legitimated Princes. p. 30, &c. where it is shewn that it was only before the fifth Century, that the Word Concubine was sometimes taken for a Woman with whom a Man might live with Security of Conscience, tho’ he was not solemnly married to her; and thus their Children were not civilly legitimate.
[7. ]St. Augustin makes it a Doubt, whether a Concubine, if she has promised to know no other Man, and is dismissed by the Person to whom she was subject, ought not to be admitted to Baptism. De Fide & Operib. (Cap. XIX.) The same Father elsewhere proposes this Question, Whether, when a Man and a Woman have carnal Conversation together, not being Husband and Wife, and this without any Design of having Children; but only for satisfying their Desires, after a mutual Engagement not to take the same Liberty with others, this Contract may not be called Matrimony? To which he replies, that It may be termed Marriage, without any Absurdity, if they have a greed to remain in that State till the Death of one of the Parties; and if, tho’ they did not enter into it for the Sake of propagating their Species, they have neither avoided it, nor by any evil Artifice hindered the Birth of such Propagation. De Bono Conjugali. Cap. V. For this Reason, in the Capitularies of the Kings of France it is said, that A married Man may not have a Concubine, lest his Love for the Concubine draw his Affections from his Wife. Lib. VII. Cap. CCLV. Grotius.
[8. ]Code, Lib. V. Tit. XXVII De natural. Liberis, Leg. III. The Lawyer Paul says the whole Difference between a lawful Wife and a Concubine, consists in the Degree of Affection; and therefore, A Man is not allowed to have a Wife and a Concubine at the same Time. Recept. Sent. Lib. II. Tit. XX. § 1. See Mr. Schulting; and Cujas, on the Title of the Code, De Concubinis, v. 26. with Mr. Fabrot’s Notes.
[9. ]The Person to whom she was Concubine, might accuse her by the Right of a Stranger, not by that of a Husband. Digest. Lib. XLVIII. Tit. V. Ad Leg. Jul. de Adulteriis, &c. Leg. XIII. See the President Brisson’s Treatise, Ad Leg. Jul. de Adult. p. 232, 233. Edit. Antwerp. 1585. The Law was the same in Regard to a Foreigner married to a Roman Citizen; as appears from a Fragment of Papian, Collat. Leg. Mos. & Rom. Tit. IV. § 5. See Mr. Schulting on this Question.
[1 ]Institut. Tit. I. § 1. The Valerian Law forbid the Execution, or Whipping of such as appealed to the People; but decreed no other Penalty for those who violated that Law, than that of declaring them guilty of a bad Action.Livy is of Opinion, that Sentiments of Honour and Probity had in those Days so strong an Influence on the Minds of Men, that a bare Declaration of that Nature seemed sufficient for preventing the Violation of the Law. (Lib. X. Cap. IX. Num. 5, 6.) The Furian Law prohibited the receiving of any Legacy or Gift on the Account of Death, exceeding a certain Sum (about 200 Crowns) plus quam mille Assium, some Persons excepted; and whoever took above that Value, was fined four Times the said Sum.Ulpian, as above quoted, § 2. Macrobius defines an imperfect Law, that which orders no Penalty for the Transgressors. In Somn. Scip. (Lib. II. Cap. XVII.) By a Rescript of the Emperor Marcus Antoninus, it is declared, that if an Heir hinders the Person named to that Purpose by the Testator, from Burying the Deceased, he doth ill; but then no Penalty was decreed against him. (Digest. Lib. XI. Tit. VII. De Religiosis & Sumptibus funerum, Leg. XIV. § 14) Grotius.
[2. ]Code, Lib. I. Tit. XIV. De Legibus, &c. Leg. V. Some Doctors are of Opinion, that the Rule is not without Exception, even since this Constitution of the Emperors. See Vinnius, in his Selectae Juris Quaestiones, Lib. I. Cap. I. To whom Mr. Schulting likewise refers, in his Explication of the first Part of the Digest. Lib. I. Tit. III. § 8.
[3. ]For this Reason Alcinous, King of the Pheacians, being made Arbitrator between the Inhabitants of Colchis, and the Argonauts, determined that If Medea had lain with Jason, she should not be restored to her Father; but if she was still a Virgin, she should be sent back to him.Apollodorus, Bibliothec. (Lib. I. Cap. IX. § 25. Edit. Paris, Gal.) See also Apollonius, in Argonaut, and his Scholiast. Grotius.
[1 ]On this Question, see Pufendorf, B. VII. Chap. II. § 15, &c. And our Author’s Treatise, De Imperio summarum potestatum circa sacra, Cap. IV. § 6. As also Boecler’s Dissertation, De calculo Minervae Tom. I. p. 226. &c.
[2. ]Thus, according to the Canon Law, if the Conclave is not unanimous, and two Parts agreeing in their Votes, the third will not agree with them, or presumes to name another Person: He, who shall be elected and received by two Thirds of the Cardinals, is, without any Exception, to be accounted Pope by the universal Church. Decretals, Lib. I. Tit. VI. De Electione & Electi Potestate. Cap. VI. Grotius.
[3. ]Thus the Chaldee Paraphrast, and the Rabbies understand what is said, Exod. xxiii. 2, 3: [But consult Mr. Le Clerc on that Text.] See Digest. Lib. XLII. Tit I. De re judicatâ, &c. Leg. XXXVI. and XXXIX. and what I shall say, B. III. Chap. XX. § 4. Grotius.
[4. ]Lib. V. Cap. XXX. Edit. Oxon.
[5. ]I do not find those Words in Appian’s History; nor have I the Excerpta Legationum in my Hands, to see whether they are taken from that Collection.
[6. ]Antiq. Rom. Lib. II. Cap. XIII. p. 85. Edit. Oxon. (87 Edit. Sylb.) and Lib. VII. Cap. XXXVI. p. 428. (445 Sylb.) It is just, says he in another Place, that each Man should propose what he thinks will be to the Advantage of the Publick; and then submit to what shall be resolved by a Plurality of Voices, Lib. XI. Cap. LVI. p. 695, 696. (731 Sylb.)
[7. ]Politic. Lib. IV. Cap. VIII. p. 372. See also Lib. VI. Cap. II. p. 414. Edit. Paris.
[8. ]Lib. X. Cap. VI. Num. 15.
[9. ](In Symmach. Lib. I. ver. 599, 600, 607, 608.) St. Ambrose says the same in his Epistle against Symmachus.Grotius.
[10. ]De Exped. Cyri. Lib. VI. Cap. I. § 11. Ed. Oxon.
[1 ]This is decided by the Roman Law, in the following Words, If on a Division, the Number of Voices is equal, in Causes touching Liberty, (according to the Decree of the Emperor Pius ) the Decision is given in favour of Liberty; but in other Causes for the Defendant, which ought to take Place also in publick Judgments. Decret. Lib. XLII. Tit. I. De Re Judicatâ, &c. Leg. XXXVIII. Seneca says, One Judge condemns a Man, the other clears him; in a Division of Opinions, let that prevail which shews more Mercy. Controvers. (Lib. I. Controv. V.) A little after, he observes, that Power is not odious, when it becomes superior by Mercy. See what the Emperor Julian says in Commendation of Eusebia. (Orat. III. p. 115. Edit. Spanh.) Even among the Jews, a Criminal was not reckoned condemned, when the Number of Judges who declared him innocent, was less only by one Voice; as the Chaldee Paraphrast assures us, on Exod. xxiii. 2, 3. Rabbi Moses de Kotzki says the same. Praecept. jubent. XCVIII. &vetant. CXCV. Grotius.
[2. ]See on this Subject Boecler’s Dissertation already quoted, and the learned Gronovius’s Oration on the Royal Law, p. 41. &c. of the French Translation, published in the second Edition of Mr. Noodt’s Discourses On the Power of Sovereigns, &c. in 1714.
[3. ]In the Electra, Castor and Pollux speak thus, This shall be a Law for the future, that the Defendant be discharged when the Judges are equally divided in their Opinions. (ver. 1267, 1268). See also his Iphigenia, (ver. 1470). Grotius.
[4. ]Problem. Sect. XXIX. Num. 13. p. 813. Tom. II. Edit. Paris.
[1 ]For which Reason, in the Roman Senate, when any one had given his Vote, so as to include several Things, he was ordered to divide his Opinion, as we are informed by Asconius, the Grammarian. In Orat. Cic. pro Milone. (Cap. VI.) We have an Instance of this Manner of proceeding in one of Cicero’s Epistles. In the Affair of King Ptolomey, the House was divided, Bibulus proposed naming three Embassadors for conducting that Prince into his Dominions. Hortensius was of Opinion that Lentulus should perform this, but without an Army. Volcatius was for giving that Commission to Pompey. Whereupon it was required, that the Members should vote separately on the two Branches of Bibulus’ s Opinion. He pretended that, according to the Sibylline Verses, the King ought not to be re-established with an Army; this passed the more easily, because there was no Possibility of resisting the Motion; but in Regard to the three Embassadors, great Numbers voted against him. Ad Familiar. Lib. 1. Ep. II. Seneca applies this Custom to philosophical Opinions, which one approves of only in part. I am of Opinion, says he, that what is practised in the Senate, ought to be done in Philosophy. When any Man has delivered his Sentiments, part of which I like, I order the Opinion to be divided, and then follow what I approve of. Epist. XXI. I also have a Right to deliver my Opinion, I will therefore follow one, and order another to divide his Opinion. De Vitâ Beatâ, Cap. III. See likewise Pliny the younger, Lib. VIII. Epist. XIV. (Num. 15. Edit. Cellar.)Grotius.
[2. ]A celebrated Lawyer of Friesland does not agree with our Author in this Point. He requires that Regard be had to the Intention of the Opinions, rather than to the Nature of the Things declared. On this Foot, says he, those who absolve, would chuse rather to join those who are for banishing the Criminal, how innocent soever they themselves may believe him, than to suffer Sentence of Death to pass on him; and in Case of a Doubt, we ought always to incline to the most merciful Side. Ulric Huber, De Jure Civitatis, Lib. III. Sect. II. Cap. VI. Num. 5, 6. See the Paraemiae Juris Germ. by the late Mr. Hertius, Lib. III. Cap. VIII. § 3. & ult. As also the late Mr. Coceius’s Dissertation, De eo quod justum est circa numerum suffragiorum. Sect. III.
[3. ]Lib. VIII. Epist. XIV. Num. 13, 14.
[4. ]Except. Leg. CXXIX. p. 1331. Edit. Amst. See Fulvius Ursinus’s Note on the Place.
[1 ]The Case is not exactly the same, as is evident; but it may serve for a Comparison.
[2. ]The Case is thus decided in the Roman Law, If the whole Number is reduced to one Person, it is rather allowed that he may act alone; since the Right of all devolves to one Man, and the Name of the whole Body remains.Digest. Lib. III. Tit. IV. Quod cujusque universit. nomine, &c. Leg. VII. § 2. See Wesembec on the Passage; and Lib. II. Tit. XIV. De Pactis, Leg. X. Zasius in Paratit.Digest. De Pactis.Bartol. in Leg. I.§3. De Albo Scribendo.Boer, Decis. I. Num. 4. Anthony Faber, Cod. Sab. Lib. I. Tit. III. Defin. 40. Reinking, Lib. I. Cl. V. Cap. VIII. But in this, as in the Rule concerning the major Part, the Laws often make an Exception, and require two Thirds should be present. Leg. nulli. 3. Digest. Tit. Quod cujusque universit. nom. Leg. nominat. XLVI. C. De Decurionibus. By the Canon Law the absent may depute some of those present to act for them. Decret. in VI. Lib. I. Tit. VI. De Electione, &c. Cap. XLVI. Grotius.
[1 ]Concerning the Right of Precedency, see M. Antony Natta, Consil. DC. Num. 22. and Consil. DCLXXVIII. Num. 31. Martin Wacher, Consil. Caesar. in Controversia Saxonied.Grotius.
[2. ]Ethic. Nicom. Lib. VIII. Cap. XII. pag. 111.
[3. ]Code, Lib. XII. Tit. III. De Consulibus, &c. Leg. I. See also Tit. VIII. Ut Dignitatum ordo servetur, Leg. II. Tit. XLIV. De Tironibus, Leg. III. and Digest. Lib. L. Tit. III. De Albo Scribendo, and Tit. VI. De Jure immunitatis, Leg. V. Grotius.
[4. ]See John Fice, Cons. Latino. LXXVII. Num. 16. Afflictus, Decis Neapolit. I. Num. 8. Bartol. in Leg. I. Digest. De Albo Scrib.Innocentius, in C. Tua. De Majoritate & Obedientiâ.Anthony Tessaurus I. Quaest. for. XLVIII. Num. 5. Tiberius Decianus, Resp. XIX. Num. 183, &c.Innocentius Butr. Felin, in C. Statuimus, Tit. De Majoritate, &c.Baldus, in Decernimus, in 2. Notabili. C. De sacro sanctis Eccles. But above all consult Aeneas Sylvius, in his History of the Council of Basil.Grotius.
[1 ]The Laws quoted by our Author in the Margin, do not speak of the Rank of Persons, nor of the Weight of their Opinions; but only of the Share each Man ought to have in the Thing to which they have a Right in common.
[2. ]Geograph. Lib. XIII. p. 936. Edit. Amst. (631, Paris.) The Author, or the Printers, had put Libyca instead of Cibyra, as it is in Strabo, Κιβυρα; which Fault appears in all the Editions of this Work, published since the Addition of these Examples, which were not in the first, till mine, which was published at the Beginning of 1720.
[3. ]Lib. XIV. p. 980. Edit. Amst. (665, Paris.)
[4. ]Thus in the Treaty of Smalcald, the Elector of Saxony had two Votes. Grotius.
[5. ]Politic. Lib. III. Cap. IX. p. 348.
[1 ]See B. I. Chap. I. § 14.
[2. ]Ὁι δὲ νόμοι ἀγορέυουσι περὶ ἀπάντων. Lib. V. Cap. III. p. 59. All Editions before mine had ἀπαγορέυουσι, which makes a different Sense from what our Author himself gives in his Translation of the Words. Besides, the Passage does not perhaps signify precisely what he finds in it. See Mr. Muret’s Commentary on it, in p. 370, &c. of a Collection, printed at Ingolstadt, in 1602.
[1 ]On this Question see Pufendorf, B. VIII. Chap. XI. § 2, &c.
[2. ]See the Treaties of the Swiss Cantons, in Simler, De Repub. Helvet. (Lib I. p. 203. Edit. Elziv. 1627.) and in other Authors. Servius, his Additions from the Manuscript of the Abby of Fuld, says, It was customary among the Antients, for Persons who entered into a new Family or Nation, to renounce that which they left, before they could be received into the other. On Aeneid. II. (v. 156.) Mariana’s History affords us some Instances of Persons who have declared they have disengaged themselves from the Obedience they had promised to a King. The last Example of this Kind, which is very remarkable, may be found in B. XXVIII. Chap. XIII. Grotius.
[3. ]The Law runs thus, Municipes sunt liberti & in eo loco, ubi ipsi domicilium suâ voluntate tulerunt; nec aliquod ex hoc origini patroni faciunt praejudicium, & utrobique muneribus astringuntur. Digest. Lib. L. Tit. I. Ad municipalem, & de Incolis, Leg. XXII. § 2. Where it speaks of a Freedman, who was reckoned to belong to the Place from whence his Patron or Master came, that if he settled elsewhere, he was obliged to bear Offices, both in the Place he had quitted, and where he then lived. This was a general Rule for all the Citizens of municipal Cities, (Municipia). See Code, Lib. X. Tit. XXXVIII. De Municipibus & Originariis, with Cujas’s Notes; and Spanheim’s Orbis Romanus, Exercit. I. Cap. V. and VI.
[4. ]For thus the Quantity of the Contributions remained always the same; and the Inhabitants of each Place (Municipii) were not more oppressed than before.
[5. ]The War between the Romans and Persians, (in the Time of the Emperor Justin) was occasioned by the King of the Lazians, (named Tzathius) who had revolted from the Persians to the Romans; so that the former complained, that the Emperor drew away their Subjects, and made them his own.Zonoras, Tom. III. in Justino Thrace.Grotius.
[6. ]Digest. Lib. XLIX. Tit. XV. De Capt. & Postilimin. Leg. XII. § 9. See Spanheim’s Orbis Romanus, Exercit. I. Cap. V.
[7. ]Cap. XIII.
[8. ]Digest. Lib. XVII. Tit. II. Pro Socio, Leg. LXV. § 1.
[1 ]See Pufendorf, B. VIII. Chap. XI. § 6, 7.
[2. ]Heraclides, ver. 186, &c.
[3. ](Orat. De Bigis, p. 349. Edit. H. Steph.) Nicetas says, It is no Wonder if a Person who finds his own Countrymen his Enemies, applies to a publick Enemy for Friendship and Protection. Hist. in rebus Isaaci Angeli. (Cap. X.) Grotius.
[1 ]Adrogatio, quâ quis se, &c. Thus the Words stood in all the Editions before mine. I have given them thus, Adrogatio, quâ quis sui juris se, &c. and it is evident that the Author, or rather the Printer, had omitted the two Words here inserted. The Matter is too clear, and too well known, to leave any Doubt concerning the Author’s Meaning; and in the following Period, Pater autem, &c. he manifestly opposes the Adoption of Son under his Father’s Power, to that of a Person, who is his own Master. See the Institutes, Lib. I. Tit. XI.
[1 ]De morib. Germ. Cap. XXIV. Num. 3.
[2. ]This was formerly prohibited in Aegypt. It was allowed at Athens till Solon’s Time, who by one of his Laws abolished the Practice of engaging the Body; that is, Liberty, for a Debt.Plutarch, in Solon, (p. 86. Edit. Wech.) The Petilian Law, among the Romans, contained the same Prohibition. Grotius.
[3. ]On this Subject see Pufendorf, B. VI. Chap. III.
[4. ]These Words may be found in Athenaeus, Lib. VI. Cap. XII. p. 247. but our Author has put ἐπὶ σιτίοις, instead of Ἐπισίτιος. It is surprising that our Author, who quotes this Passage, taken from the Dedalus of Eubulus, should forget it in his Excerpta ex Trag. & Com. Graecis, where we have not so much as the Name of that Comedy.
[5. ]In one of Plautus’s Comedies, a Slave says, he chooses to continue in that State, Because, says he, were I free I should live at my own Expence, now I live at yours. Casin. Act. II. Scen. IV. v. 14. Melissus of Spoleto, the Grammarian, would not accept of his Freedom. (Suetonius, Illustr. Gramm. Cap. XXI.) Grotius.
[6. ]Deipnosoph. Lib. VI. Cap. XVIII. p. 263. Ed. Ludg. 1657.
[7. ]This Fact is related immediately after the Words of Posidonius, produced in the foregoing Note. But Strabo tells us, that the Mariandyni were reduced to Slavery by the Milesians, who were in Possession of Heraclea. Geograph. Lib. XII. p. 817. Edit. Amst. (542, Paris.)
[1 ]De Benef. Lib. III. Cap. XVIII.
[2. ]Ibid. Cap. XXII. See B. III. Chap. XIV. of this Treatise.
[3. ]The Passage here referred to runs thus, Solon made a Law for the Athenians, concerning such Actions as were not to fall under the Cognizance of a Court of Judicature; according to which he allowed each Man to put his own Child to Death. But, as it has been observed, Dionysius of Halicarnassus says expressly, that Among the Grecians, a Father might turn an undutiful Child out of his House, and disinherit him, but could do nothing farther. Antiq. Rom. Lib. II. Cap. XXVI. p. 93. Edit. Oxon. (98. Sylb.) He had been speaking of Solon, Pittacus, and Charondas.Meursius, however, in his Themid. Attic. Lib. I. Cap. II. produces a Passage of Sopater, an antient Rhetorician, from whence it appears, that even Mothers had a Power over the Life of their Children; but neither that learned Man, nor Fabricius, who quotes him, take any Notice of the quite contrary Authority of an Historian so famous and judicious as the Grecian Author of the Roman Antiquities.
[4. ]I do not know whence our Author takes these Words, or whether they belong to the Rhetorician, or to the Philosopher of that Name.
[1 ]Code, Lib. III. Tit. XXXII. De rei vindicatione, Leg. VII. See also Lib. VII. Tit. XVI. De liberali Caussa, Leg. XLII. Consult the famous Mr. Schulting, on Ulpian, Tit. X. § 8. p. 580. of his Jurisprudentia Ante-Justinianea.
[2. ]See Chap. VIII. of this Book, § 18. Pliny says, that among the Pigeons, the Male and the Female love their Young equally. Hist. Nat. Lib. X. Cap. XXXIV. Grotius.
[3. ]Seneca has observed, that Children belong equally to both Father and Mother, who when they have two Children, are not said each to have one, but each two. De Benefic. Lib. VII. Cap. XII. In the Laws of the Wisigoths, this Question is asked, If a Son is produced by the Concurrence of both Parents, why should he share the Condition of his Mother only, since he could not have existed without a Father? From which it is concluded, that according to the Law of Nature, Children born of two Slaves, belonging to different Masters, are to be divided equally between them both, Lib. X. Tit. I. 17. The Children of two Sclavonians followed their Father; as appears from the Speculum Saxonicum, III. 73. The same Thing was practised in some Parts of Italy. See the Decretals, Lib. IV. Tit. IX. De Conjug. Servorum. Cap. III. Among the Lombards and Saxons the Children shared the Fate of that Parent whose Condition was lowest, Spec. Saxon. I. 16. This Regulation took Place also among the Wisigoths in Spain, in Isidore’s Time; as appears from the Canon Law, Caus. XXXII. Quest. IV. Can. XV. The Laws of the Wisigoths formally declare, that a Child born of a free Father and a Mother who is a Slave, thereby became a Slave. Lib. III. Tit. II. 3. Lib. IV. Tit. V. 7. Lib. IX. Tit. I. 16. Those who were born of two Slaves served the Masters of both their Parents equally. If there was but one Son, he belong’d to the Father’s Master, on paying the Mother’s Master half his Value. In Regard to those who were termed Originarii, the Father’s Master had two Thirds; and the Mother’s Master the other; according to the Edict of King Theodorick, in Cassiodore, C. 67. In England a Person is either free or a Villain, (Francus aut Villanus) according to the Condition of his Father. Littleton, De Villanagio. See also the Book De laudibus Legum Angliae. These Laws differ from the Roman Civil Law; but Thomas of Aquino owns they are not repugnant to the Law of Nature, (Supplement. Quaest. LII. Art. IV. in Conclus.) Even the Roman Laws were not always conformable to their Principle; for one of them declares, that whether the Father or the Mother of a Child were Foreigners, the Child was so too. Ulpian, Tit. V. De his qui in potestate sunt. §8. Grotius.
[4. ]This was established by Charlesthe Bald, Cap. XXXIV. Edict. Pist.Grotius.
[5. ]Add here what I have said in a Note on Pufendorf’s Duties of a Man and a Citizen, B. II. Chap. IV. § 6. of the third and fourth Edition.
[6. ]We have several Maxims in Scripture, which seem general, and are really so, if we consider the Terms only: but which however admit of Exceptions, which easily appear from the Nature of the Thing, and the Circumstances. Sometimes these Maxims are general only as they regard what commonly takes Place. This is the Meaning of our Author, who answers the Objection more at large in the Place quoted in the Margin.
[1 ]Among the Romans tho’ a Slave received his Liberty, he was still obliged to respect his Patron, (for so they called the Person who had been his Master) and the Patron could demand several Services of him, such as attending him, taking the Care of his Affairs, &c. If the Freedman failed in his Duty, and became guilty of Ingratitude to a certain Degree, he might again become a Slave to his former Master. If he died without Children, the Patron inherited his Goods; half of which the Freedman was obliged to leave him by Will. See Digest. Lib. XXXVII. Tit. XIV. De Jure Patronatus, Lib. XXXVIII. Tit. I. De oper. Libertorum, Tit. II. De bonis Libertorum.
[2. ]Statu liberi; that is such as received their Liberty by Will, but on certain Conditions, and after a fixed Time; or Slaves free in Hope. The former is the Definition of the Term given by the Roman Law. Digest. Lib. XL. Tit. VI. De Statu liber. Leg. I. See Ulpian’s Fragments, Tit. II. with the Notes of Mr. Schulting, and others, which he has collected in his Jurisprud. Ante-Justin. p. 571.
[3. ]Nexi. Persons who voluntarily made themselves Slaves to their Creditor till they could discharge the Debt. Addicti. Those who were obliged so to do by the Judge’s Sentence. Varro, De Ling. Lat. Lib. VI. p. 82. See Salmasius, De Modo Usurarum, Cap. XVIII. Quintilian, Lib. VII. Cap. III. p. 620, 621. Edit. Burman.
[4. ]Adscripti, or Adscriptii Glebae. Husbandmen, who belonged to the Lands given them, [and changed Masters with the said Lands]. The Grecians called them Ὁμόδουλοι τῷ ἄγρῳ, as appears from a Passage of Sozomen, Hist. Eccles. Lib. IX. Cap. ult. where he applies that Term to Calemerus. Men in that State went with the Lands which they cultivated; for the Proprietor might alienate them when he alienated his Lands. But their State was not so hard as that of Slaves. See Cujas on the Code, Lib. XI. Tit. XLVIII. De Agricolis, censitis & colonis; as also James Godefroy’s Commentary on the Place in the Theodosian Code, quoted in Note 3. of the foregoing Paragraph.
[5. ]Penestae.Athenaeus gives the following Account of their Origin from Archemachus, an antient Historian. “A Colony of Boeotians coming into Thessaly, some of them returned into their own Country, while the rest, liking their Situation, engaged to serve the Inhabitants, and cultivate their Lands, on Condition that the Thessalians should neither drive them out of the Country nor kill them.” Deipnosoph. Lib. VI. Cap. XVIII. p. 264. [That Writer says they were formerly called Μένεσται from μένω, to remain or stay; but afterwards Πενέσται]. Julius Pollux ranks the Penestae with the Ilotae among the Lacedemonians; and says they were a middle State, between Freemen and Slaves, Lib. III. § 83. Edit. Amstel.Dionysius of Halicarnassus compares them to the Clientes of the old Romans. But there was a wide Difference between them, as H. Stevens proves in his Schediasm. Lib. IV. Cap XIV. XV. XVI. where he likewise treats of the Etymology of the Word Πενέσται.
[6. ]Quos manus mortuas vocant. Persons who could not dispose of their Goods by Will, without the Consent of their Patron, nor marry out of his Lands. When they died without legitimate Issue, the Patron became Heir to all their Goods, or at least to those of a certain Kind. They were called Manus mortuae, because on the Death of the Head of a Family subject to that Law, the Patron seized on the most valuable Piece of Goods he found in the House; and if there were none, the right Hand of the Deceased was cut off and presented to him. Mag. Chron. Belg. p. 153. at the Year 1123. Bodin I. De Repub. V. p. 61, 63. Des. Herald, Rer. quotid. Lib I. Cap. X. Num. 13. p. 81.
[7. ]Among whom such as the English call Apprentices come nearest to the State of Slavery, during their Apprenticeship. Grotius. See Thomas Smith, De Repub. Anglic. Lib. III. Cap. X.
[8. ]That is, as they belong equally to the Father and Mother they ought likewise to partake equally of the Condition of both; and consequently be obliged to serve for a Time only, or in a Manner which softens the Rigour of their Fate.
[1 ]Livy, Lib. I. Cap. XXXVIII. Num. 2.
[2. ]In his Amphitryon, where he puts these Words into Sofia’s Mouth. Act. I. Scen. I. ver. 102, 103.
[3. ]Xerxes and Darius made this Demand on the Grecians; which Quintus Curtius calls a Piece of Insolence, Lib. III. Cap. X. See the Commentators on that Place.
[1 ]Thus when Ulysses came into Aegypt, some of his Companions plundering the Inhabitants, great Numbers of them were killed, and others made Slaves, as we read in Homer, Odyss. Lib. XIV. (ver. 271, 272). Apollodorus tells us, that Jupiter was on the Point of throwing Apollo into Tartarus for killing the Cyclops; but Latona interceding in his Favour, he only sentenced him to a Year’s Slavery. Biblioth. Lib. III. (Cap. X. § 3. Edit. Paris. Gal.) Grotius.
[2. ]This appears from a Passage of Cicero, quoted by our Author in the Margin, When the People, says he, sell the Man who declined the Service, they do not take away his Liberty, but judge him not free who would not purchase his Liberty by exposing himself to Dangers. When they sell a Man, who either gives no Account of his Estate, or gives a false one, they judge, that as he who is really a Slave is excused from the Cess, so he who would not submit to it when he was free, renounces his own Liberty. Orat. pro A. Caecina, Cap. XXXIV. But the Lawyers speak thus on the Subject: For formerly such as did not appear when called on to inlist themselves, were reduced to Slavery, as Persons who had forfeited their Liberty:Digest. Lib. XLIX. Tit. XVI. De re militari, Leg. IV. § 10. See Duaren, Disput. annivers. Lib. I. Cap. IV.
[3. ]Incensi. The Lawyers speak of them. See Ulpian, Tit. XI. § 11. Servius Tullius, one of the antient Kings of Rome made a Law, that whoever did not give in a faithful Account of the Value of his Estate, should forfeit it, be whipt, and sold.Dionysius Halicarnassensis, Antiq. Rom. Lib. IV. Cap. XV. p. 212. Edit. Oxon. (221, Sylb.) Livy speaks of this Law in the following Passage, which I shall set down, because I am of Opinion there is a Fault in the Text, Censu perfecto, quem maturaveratmetuLegis de Incensis latae, cum vinculorum minis mortisque, &c. Lib. I. Cap. XLIV. Num. 1. I think it should be read metus Legis. The Assessment was not hastened by the King; but the Fear of incurring the Penalty made every one hasten to give in his Name, and Value of his Estate. This little Alteration makes the Expression at least more natural.
[4. ]In Lycia Thieves also were condemned to Slavery, as we learn from a Fragment of Nicholas of Damascus. (Excerpt. Pieresc. p. 517.) Among the Wisigoths the same Penalty was inflicted for several other Crimes, as appears from the Collection of their Laws. Grotius.
[5. ]See Tacitus, Annal. Lib. XII. Cap. LIII. Suetonius, in Vespas. Cap. XI. and the Passage of Ulpian, referred to in Note 3.
[6. ]See some Examples of this Kind, Chap. XIII. of this Book, § 4. with the eighth Note.
[7. ]Noxa caput sequitur. Crimes are personal. Thus our Author understands these Words, which frequently occur in the Roman Law, as in Paul’s Receptae Sententiae, Lib. II. Tit. XXXI. § 8. in the Digest. Lib. XIII. Tit. VII. Commodati, vel contrà, Leg. XXI. § 1. and in the Code, Lib. III. Tit. XLI. De noxalib. Action. Leg. I. But in a Sense somewhat different: For the Lawyers mean that the Action which might be brought for repairing the Damage done by a Slave, (Actio Noxalis) follows the Person of the Slave; so that if he was alienated after the Fault was committed, the Action lay against the new Master; but if the Slave was made free, he himself was liable to Prosecution. Thus the Rule is elsewhere explained. Digest. Lib. IX. Tit. IV. De Noxalib. action. Leg. XX. Institut. Lib. IV. Tit. VIII. § 5. See also Digest. Lib. IV. Tit. V. De Capite minutis, Leg. VII. § 1. and Lib. XLIV. Tit. VII. De Obligat. & Action. Leg. XIV. Code, Lib. IV. Tit. XIV. An Servus ex suo facto, post manumissionem, teneatur? Leg. IV. So that the Law here speaks neither of a Punishment, nor of the Right of perpetuating it in the Persons of the Criminal’s Descendents.