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Remarks on This Chapter - Johann Gottlieb Heineccius, A Methodical System of Universal Law: Or, the Laws of Nature and Nations 
A Methodical System of Universal Law: Or, the Laws of Nature and Nations, with Supplements and a Discourse by George Turnbull. Translated from the Latin by George Turnbull, edited with an Introduction by Thomas Albert and Peter Schröder (Indianapolis: Liberty Fund, 2008).
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Remarks on This Chapter
I cannot see how the physical state of man, as it is defined by our Author, can be said not to belong directly to the moral science. For whence can a man’s duties or obligations, which constitute his moral state, be inferred but from his physical state, from his frame, condition, rank and circumstances; from his make, and the relations he stands in, in consequence of his make and situation? Properly speaking, man’s physical state lays him under moral obligations; or binds and obliges him to a certain behaviour; binds and obliges him to choose to act, in a certain manner, or according to certain rules: or, in other words, man’s physical state constitutes the law of his nature, by which he is bound, whether he consents or not, being bound to consent and choose to act agreeably to that law. Man cannot be said to be under the law of nature, or subject to it by his consent in any other sense, but this, that were he not capable of discerning the law of his nature, of perceiving its reasonableness, its excellence, and of consenting to it, he would not be a moral creature; but being such by his make, he is by his nature under natural and immutable obligations to know the law of his nature, and to regulate his conduct in all instances by it. And all men are equally under or subject to the law of nature: no man is less or more subject to it: but all men as men, are equally, universally obliged to observe it as the law of their nature, the law of reason, the law of God their Creator. And in this sense all men are equal, or there is an equality of obligation, and of right belonging to all men. Whence it follows, that all men are by nature equally subject and equally free; equally subject to the same universal law, and equally free or exempt from all obligations but those which arise from the law of nature. All are equally bound by the law of nature; and for that reason, all are equally free from all obligations but those which the law of nature lays equally upon all. All are equally obliged to direct their conduct according to the law of nature; and therefore every one hath a right, an unalienable right, to make the law of nature his rule of conduct; and none hath a right so much as to advise, far less to force or compel any one to act contrary to the law of nature, or to hinder any one from making the law of nature his rule, and exercing his right to judge of it, and to act according to it: nay, none hath a right to dispose of, quit or resign this natural right and obligation. For that would be a right to throw off his natural obligations, and to choose or take another rule to himself. Man is free, or master of his actions, free and master of his consent; but how far? within the bounds that the law of nature or of reason sets to him. That is, he is free to consent and to dispose of himself and his actions, in any way not contrary to the law of nature; but not in any way that is repugnant to it, or which the law of nature forbids. Now, if this be carefully attended to, it will not be difficult to determine any of the questions that are commonly put by moralists about what are called by our Author adventitious obligations, or obligations imposed upon man by himself, or some deed of his own. For, from what hath been said, it is evident that man can bring himself under no obligation contrary to the law of his nature. Such adventitious impositions upon himself are ipso jure null, being morally not in his power, as being contrary to the law of nature, which he cannot abrogate, rescind or dispense with. This general principle shall afterwards be applied to civil society, and the impositions or obligations men lay themselves under by a civil contract. Here, we shall only observe, that the natural inequalities which take place amongst mankind, are not inconsistent with the moral equality and freedom of mankind that hath been defined. The first distinction which subjects some persons to others, is that which is made by birth between parents and children, which distinction makes a first kind of government in families, where the children owe obedience to their parents, who are the heads of families. But of this we shall say nothing here, because our Author treats expresly of it at great length in a succeeding chapter. It will be better for us to supply here a few things not touched upon by our Author, which however it is of importance to clear up. 1. Then, there is an evident inequality amongst mankind, intended by nature in respect of the goods of the mind. And it might easily be shewn, were this the proper place for it, that, as our excellent poet most beautifully expresses it,
Essay on Man, Ep. 4.4
But what we would observe, is in the first place the fact. “God, who does nothing in vain, (says an excellent author often quoted in our remarks) hath so differenced or divided men, that twenty men (if they be not all idiots, perhaps if they be) can never come together, but there will be such a difference in them, that about a third will be wiser, or at least less foolish than the rest, these, upon acquaintance, tho’ it be but small, will be discovered, and (as stags that have the largest heads) will lead the herd: For while the six discoursing and arguing one with another, shew the eminence of their parts, the fourteen discover things that they never thought of, or are cleared in divers truths which had formerly perplexed them. Wherefore, in matter of common concernment, difficulty or danger, they hang upon their lips as children upon their fathers: And the influence thus acquired by the six, the eminence of whose parts are found to be a stay and comfort to the fourteen, is the authority of the fathers. Wherefore, this can be no other than a natural aristocracy diffus’d by God throughout the whole body of mankind, to this end and purpose. And therefore, such as the people have not only a natural but a positive obligation to make use of as their guide; as where the people of Israel are commanded to take wise men and understanding, and known among their tribes, to make them rulers over them. The six will acquire an authority with, and imprint a reverence upon the fourteen; which action and passion in the Roman Commonwealth were called authoritas patrum, and verecundia plebis. Nevertheless, if the few endeavour to extend the authority which they find thus acquired, to power, that is, to bring the fourteen to terms or conditions of subjection, or such as would be advantageous to the few, but prejudicial to the many; the fourteen will soon find, that consenting, they hurt not only themselves, by endamaging their own interests, but hurt the six also, who by this means come to lose their virtue, and so spoil their debate, which, while such advantages are procurable to themselves, will go no farther upon the common good, but their private benefit. Wherefore, in this case they will not consent, and not consenting, they preserve not only their own liberty, but the integrity of the six also, who perceiving that they cannot impair the common interest, have no other interest left but to improve it. And neither any conversation, nor any people, how dull soever, and subject by fits to be deluded, but will soon see thus much, which is enough, because what is thus proposed by the fourteen, or by the people, is enacted by the whole, and becomes that law, than which, tho’ mankind be not infallible, there can be nothing less fallible in mankind.” Art, says our Author, “is the imitation of nature; and by the observation of such lines as these in the face of nature, a politician limns his commonwealth.”5 This is the fact, God having divided mankind into the natural aristocracy and the natural democracy, hath laid in nature the foundation of social union and civil government, and thereby delineated the whole mystery of a commonwealth, which lies only in dividing and choosing. “Nor has God (if his works in nature be understood) as the same Author speaks, left so much to mankind to dispute upon, as who shall divide, and who choose, but distributed them for ever into two orders, whereof the one hath the natural right of dividing, and the other of choosing.”6 2. But this natural division of mankind gives no more than authority to the aristocracy, or the right of counselling, and not the power of commanding; it gives them ability and right to advise or counsel right, and lays an obligation upon the many to seek and follow advice and counsel: But, as it cannot give a right to the few so much as to counsel, far less to command what is contrary to reason and the law of nature; so it can lay no obligation upon the many to be led by the few to what is wrong or contrary to the law of nature. The few are under obligation to conform to the law of nature in their advices or counsels; and the many are under obligation not to be influenced by the few to act contrary to the law of nature, tho’ by the nature of the thing, and by the law of nature, they be under obligation to ask and take counsel from the few. Put therefore the case, that a few being discovered to be capable of leading or counselling in matters of common concernment, the many, by voluntary consent and agreement, should put themselves under the guidance, under the command, if you will, of the few; then, it is true, they would be under an obligation by consent to obey; and the natural authority of the few, would be then changed into a right to lead or command the many; but not to lead or command contrary to the law of nature, because neither have the many power to contract with the few for such submission and obedience, nor have the few power (I mean moral power or right) to stipulate to themselves such submission and obedience. 3. There is an inequality amongst mankind intended by nature, or at least not contrary to nature, in respect of external goods or the goods of fortune, all which may be comprehended in one word wealth. But as superiority in respect of the goods of the mind begets authority; so superiority in respect of external goods, begets power or dominion, “in regard that men (as the same Author expresses it) are hung upon these not of choice, as upon the other, but of necessity, and by the teeth, for as much as he who wants bread is his servant that will feed him; and if a man thus feeds a whole people, they are under his empire. There is a real distinction between authority and power. Wherefore, the leviathan, tho’ he be right, where he says riches are power, is mistaken where he says, that prudence, or the reputation of prudence, is power. For the learning or prudence of a man is no more power, than the learning or prudence of a book or Author, which is properly authority. A learned writer may have authority, tho’ he has no power; and a foolish magistrate may have power, tho’ he has otherwise no esteem or authority. The difference of these two is observed by Livy in Evander, of whom he says that he governed rather by the authority of others than by his own power. It is property that in proportion to it begets or gives power, or makes necessary dependence.”7 But now what we said just now of authority, will likewise hold here. Whatever superiority one may have over others in dominion or empire, by the necessary dependence on him his superior property creates, yet he can never have a right to exercise that dominion, empire, or power, contrary to the law of nature: nor can his dependents come under any obligation, even by consent added to necessary dependence, to be governed by his will, contrary to the law of nature, and the essential and immutable obligations they are under to obey it. And therefore dominion exerced contrary to the law of nature, is exerced without right, nay, contrary to right and obligation: For which reason, every dependent on any superior in power, has a right to refuse submission to, and to shake off dominion exerced over him contrary to the law of nature. That must be true; or of necessity it must be said, that superiority in dominion releases from the obligations of the law of nature; and that inferiority or dependence knows no other law but the arbitrary lawless will of a superior in property, and by consequence in power: which is to say, that there is no law of nature but the law of strength or force. It is indeed absurd to say, that it is contrary to the law of nature to seek, or to have superiority in property, i.e. to have dominion and dependents. Whatever property is purchased by honest industry, it, with all the superiority it gives, is a lawful purchase. But it is no less absurd to say, that the law of nature does not extend to those who have power, or does not limit its exercises, and lay it under certain obligations. And yet unless there be no obligations with regard to the exercise of dominion or power by the law of nature, there must be an exercise of power that is unlawful, and to which consequently, it is unlawful to submit or obey. Now, if it is asked, what is this law of nature with regard to superiors and inferiors, we answer, with our Author, it is the law of love or benevolence. And he goes on in the succeeding chapters to shew, what that law of love and benevolence requires in all different coalitions or societies of mankind, whether natural, as that between parents and their children, or adventitious, as that between masters and servants, and subjects and magistrates, &c. Nor, as he observes, can we ever be difficulted in any case, to find out the duties of the members of any society towards its head and towards one another, or of any one society towards any other distinct independent society, if we remember that societies are moral persons, invested with the same rights, and lying under the same moral obligations as physical persons. For that being remembered, it must, for instance, be true, that societies are bound to justice and charity, as well as individuals; and that societies have the rights of self-defence and preservation, as well as individuals. If which two principles be granted, it will be an easy matter to resolve any question about the rights and duties of superiors and inferiors in any society; or about the rights and duties of any distinct independent societies. Mean time it is evident, that the natural inequalities amongst mankind, or the inequalities made necessary by the state and circumstances of mankind, and which must for that reason be said to have been intended by the Author of nature, do not destroy the moral equality and freedom of all mankind, essential to man as such, i.e. the equal subjection of all mankind to the law of nature, and their equal liberty and right to act agreeably to it, and to demand from one another behaviour conformable to it. In this respect, all men are equally bound and equally free; or all men have the same common rights and duties.
Of the duties belonging to the matrimonial state, or society.
Matrimony is a lawful, and the most simple society.That God wills mankind should be propagated, and that the number of those who daily pay their debt to nature should be supplied by a new race, is plain from hence, that otherwise his end in creating mankind could not be obtained (l. 1. §77.) they therefore who have this end in view, propose a good end to themselves, and are obliged to have recourse to the means for compassing that end. Since then this end cannot be accomplished, unless a man and a woman consent to copulation, the consequence is, that matrimony is a society (§13), and that it is honest and lawful, being proper to a good end, which is very agreeable to God; and because it consists of the fewest persons of different sexes that may be, it is the simplest of all societies (§17).*
Its end is not only procreation, but education.But the end of God, as the author of mankind, being not merely that men should exist, but that they should be truly happy (l. 1. §77), it follows, that mankind ought not only to be propagated, but that the offspring should be carefully educated, that they may not be useless burdens on earth, but may grow up into useful members of the human state. Now, since this duty of educating offspring can be incumbent upon none but parents, in whose minds God hath, for that effect, implanted a most tender regard to their offspring;* hence we justly infer, that parents ought not only to have in their view, as the end of matrimony, the preservation of children, but likewise their education; and therefore preservation and convenient education are the genuine end of marriage.
Matrimony defined, and some axioms relating to it.Matrimony therefore is a simple society between persons of different sexes formed for procreation and education. And, from this definition, it is plain, that marriage cannot be contracted without the consent of the persons of both sexes (§13); and that the united parties are bound to all, without which, procreation and convenient education cannot be obtained,* and that every thing ought to be omitted which is repugnant to this end, (§24).
Marriage is made by consent.Since marriage cannot be formed without consent (§27), it is obvious, that marriage between a ravisher and a ravished person is not valid, (l. 1. §109) unless the latter shall afterwards ratify it by consent† (§15); nor is marriage more valid, if any violence was done to either party (ibid.) or if either of the parties was seduced by any knavish art into a marriage, to which, had the party not been deceived, consent would not have been given (l. 1. §57). But tho’ this nuptial consent of the parties be absolutely necessary, yet because there can be no society without consent to the means as well as to the end, we think mere consent to the end does not, by the law of nature, constitute marriage, but that immediate consent to conjunction of bodies is requisite.
The difference between betrothing and marriage.Hence it is evident, at the same time, that consent to marriage is more properly called, contract to marriage, or betrothing, than marriage; so that the distinction of the canonists between sponsalia de praesenti & de futuro, is too subtle for the law of nature; yet, because betrothing is a pact, and all pacts, by the law of nature, are perfectly obligatory (l. 1. §387), none can question but a contract of marriage ought to be fulfilled,* unless any of these circumstances take place, by which, we have already observed, that all other pacts are rendered null (l. 1. §382); or unless difference of tempers, or some other just reason, render it more adviseable that it should be departed from, than that it should be compleated to the great misfortune of the parties.
The hability of persons in respect to age.Since the end of matrimony is procreation and convenient education (§26), and nothing ought to be done that is repugnant to this end (§27); it follows, that those who think of matrimony, ought to be of an age in which it may be expected they can be fit for both these ends; and therefore matrimony is not allowed, by the law of nature, to infants, or such young persons, as either have not vigour enough for raising up a new vigorous seed, or not the virtue and prudence requisite to provide for a wife and children, and to take care of their children’s education and conduct.*
Whether aged persons may marry?Hence likewise it is evident what ought to be said of the matrimony between aged persons. For tho’, on account of the indissolubility of this society (of which afterwards) married persons, who have become old in the conjugal state, ought not to be separated; and tho’ marriage between a man in the decline of life, who is yet vigorous, and a young woman, is tolerable, because the end of marriage may yet be accomplished by such matrimony; yet no person of sound judgment can approve of marriage between two aged persons, or between a young man and a decrepit old woman, by which there can neither be consent to the end nor to the means of matrimony, without the most shameless immodesty.*
Of eunuchs, &c.Much less is marriage to be permitted to those who have been deprived of their virility, either by accident or maliciously, or who are naturally incapable of procreation; and therefore, tho’ examples of such marriages be not wanting, they are contrary to the law of nature, unless the impotence of the man, or the sterility of the woman, be unknown and uncertain, or be not beyond all hopes of cure, and the parties be satisfied to wait in hopes of a change to the better.†
Whether all habile persons be obliged, by the law of nature, to marry?Tho’ we may rightly conclude, from the same principle, that those contract marriage allowably, who find themselves in proper circumstances for answering its ends and uses; yet the obligation to marriage is not of such a nature, as that he can be judged to have acted contrary to the law of nature, who prefers chast celibacy to inauspicious marriage.* For since omission of an action cannot be imputed to one who had no opportunity of doing it, (l. 1. §114); and it often happens, that many accidents disappoint one’s design of marrying, and so deprive him of an occasion; surely, in such cases, celibacy cannot be blamable, since provi-dence hath not offered an allowable opportunity of engaging in marriage.
All copulation out of a married state is unlawful.But because procreation and convenient education are the ends and uses of copulation, and every thing ought to be omitted which is repugnant to these ends, nothing can be more certain, than that they are exceedingly guilty who abuse that mean which is destined by divine appointment to these ends for the gratification of their lust; and therefore all these wicked kinds of venery, which it is better to have no idea of than to know, all adultery, all whoredom, all stolen love, (which is, over and above its being contrary to the end of copulation, likewise attended with injuriousness to others); all uncleanness and unchastity, and all the infamous trade of bawding and pimping are diametrically repugnant to right reason, and the law of nature; and, in fine, that there is no other lawful way of propagating and supplying human race, but by the conjugal society we have described.*
Whether plurality of husbands be lawful?For the same reason, πολυανδρία,1 that is, plurality of husbands is contrary to right reason; as likewise, that community of wives which was permitted by Plato in his republic. (See Aristotle, polit. 2. 2.) For since, in both cases, the offspring must be uncertain on the father’s side, and this uncertainty will be a hindrance to the care of education, (§34); so far is reason from approving such conjunctions, that even those nations which permitted polygamy, or a plurality of wives to one husband, have given no woman right to have more than one husband at a time.†
Arguments for polygamy.The question about the lawfulness of polygamy, or a plurality of wives, is more difficult. For, 1. Such a conjunction does not hinder propagation. Nor, 2. Does it render offspring uncertain. Besides, 3. Many nations, even the people of God, have approved of this, and seemed to think themselves happy in having the privilege of taking home many wives. Not to mention, 4. The Turks, and other eastern nations, where it is not worse in respect of procreation and education, when one has many wives, than when one has but one wife. And, 5. Sometimes the husband’s vigour, sometimes the wife’s intolerable humour, or her barrenness, sometimes the interest of the republic, and sometimes other reasons plead in favour of Polygamy.*
It is not agreeable to right reason.But since it is the duty of married persons to avoid every thing repugnant to the end of a married state (§27), and all discord about the end or means is contrary to society (ibid.) and so much the more unavoidable as the society is more numerous (§18); hence we justly conclude, that polygamy is less agreeable to right reason than marriage with one woman; wherefore, since the law of nature obliges us to choose the best of two goods* (l. 1. §92), we are rather obliged to monogamy than to polygamy.
An answer to the first and second argument.Nor are the arguments brought in defence of it of such force as to oblige us to desert our cause. For grant, 1. That the procreation of children is not hindered by polygamy, yet the other end, convenient education, which ought not to be separated from the former, is hindered by it (§26 and 37). 2. Tho’ progeny be certain in polygamy, yet this certainty does not hinder but each mother may only love her own children, and prosecute the rest with terrible hatred, or at least endeavour, by novercal arts, to render them less agreeable to the father than her own. 3. To oriental nations, of a hotter temper, and more prone to venery, which approved of polygamy, we may oppose examples of more civilized nations which disapproved it. Nor is the practice of the Jews a rule, since our Saviour teaches us, that all things in which the Jews dissented from the primitive rule, were rather tolerated than approved by God in them; “For the hardness of their hearts,” Mat. xix. 8.*
An answer to the fourth and fifth arguments.Of the same nature are all the other arguments by which polygamy is defended. For, 4. What is said of domestic quiet and peace among the Turks and other eastern nations, is partly false, according to the annals of these countries, and is partly obtained by means repugnant to the matrimonial society.† And what, pray, 5. is more incredible, than that one is not sufficient for one? Or what is more uncertain, than that when one has an immodest or indiscreet wife, that the other he brings home shall be more modest and discreet? or that if one be barren, the other shall be more prolific? what if he should get two furies instead of one? But all their arguments depend upon a principle we have already shewn to be false.
Sola est utilitas justi prope mater & aequi. (l. 1. §78)2
Whether certain degrees are prohibited by the law of nature.It is a no less difficult question, whether by the law of nature reverence is to be paid to blood, and whether, for that reason, it prohibits marriage within certain degrees of kindred and affinity? For since such marriages are not repugnant to the end of matrimony, they cannot be forbidden on that account. Yet, since marriages between ascendants and descendants are attended with the greatest and most hurtful confusion of different natural relations amongst persons, reason itself perceives and acknowledges their turpitude; and therefore the Civilians justly asserted these marriages to be incest by the law of nations, l. 38. §2. D. ad leg. jul. de adult. And they likewise with reason pronounced marriages between persons of the nearer degrees of kindred, to be contrary to modesty and virtue, l. 68. D. de ritu nupt.*
Of solemnities.Since all copulation without marriage is unlawful, and there is no other lawful way of propagating mankind but by marriage (§34); the consequence is, that it is the interest of the married parties, and of the children, that the design of contracting the matrimonial society should be testified by some external sign, that thus a legal wife may be distinguished from a concubine, and legitimate children from illegitimate ones; which, since it cannot be done conveniently, unless marriage be publicly celebrated, we may easily see a good reason why almost all nations have judged some solemnities requisite to indicate nuptial consent, and have appointed some such.*
Of the conjugal duties arising from the nature of the pact.The conjugal duties are obvious. For, since the nature of this society requires consent (§32), which cannot be hoped for without love and con-cord, the consequence is, that husband and wife are obliged to love one another; and not only to manage their common family interest* with common care and prudence, but mutually to assist one the other, especially in the education of their children, and to have one common fortune.
Of those arising from the end of matrimony.These are the duties which arise from the very nature of consent and society. But from the end of matrimony we infer, that husband and wife are obliged to cohabit, and to allow to one another only the use of their bodies, and therefore to abstain from all adultery, whoredom, and stolen love;† to love all their children with equal affection; and that the one ought not, by any means, to disappoint or render ineffectual the other’s care about their education.
Whether the husband has any superior command?Moreover, it is manifest that this society would be very imperfect, if it were equal in such a manner that neither had the faculty of deciding in any common dispute, because it may happen, in many cases, that the two may differ in their opinions about the choice of means, and between two, in such cases, the dispute would be endless; wherefore, tho’ the prudentest counsel ought to be preferred (l. 1. §92),* yet, because it would often be controvertible which of the two parties in this society was in the right, there is reason to approve the common practice in this matter, and so to give a certain prerogative to the husband about affairs belonging to the common safety or advantage of the society.
The nature of it.But since this prerogative of the husband extends only to affairs belonging to the welfare and interest of the society (§44); the consequence is, that this marital authority ought not to degenerate into such an empire of a master, as we have already observed to have taken place in some barbarous nations;* nor does it reach to a power of death and life, as it did in some nations. Gellius 10. 23. Tacit. annal. 13. 32. Caesar, de bello Gallico, 6. 19. Tacit. de moribus German. c. 19. much less does it extend to a power of selling or lending one’s wife to another, a custom among some nations, and not disapproved of by the Romans, Plut. in Catone, p. 770. Tacit. annal. 5. 1. Dio Cass. hist. l. 48. p. 384. But it consists in the right of directing a wife’s actions by prudent counsel, and of defending her; and in the right of chastising an immodest one suitably to the condition and rank of both (§21); and in divorcing her for such just causes as shall be afterwards treated of (§21).
Whether this right of the husband may be changed by pact?But because this prerogative is only due to the husband on account of his presumed greater prudence, and of the matrimonial burdens incumbent on him (§44); since it not seldom happens that a woman of superior judgment and spirit is married to one of an inferior one, a richer to a poorer, a queen to a private man; therefore, in all these cases, the woman may stipulate the prerogative to herself.* None can deny, for we have many examples of it, that a queen may marry a prince, without giving him any power in her dominions, and likewise retain the superior power in the conjugal society; except when the consort, being heir to a kingdom, chuses to transfer the empire itself to her husband, contenting herself solely with the dignity.
The duty of the husband in bearing the burdens of the matrimonial society.But since ordinarily the prerogative belongs to the husband (§44), he cannot refuse the care of maintaining his wife and children, and of bearing the burdens of matrimony; tho’, because the children are common, and both are obliged to common care (§42), the wife ought certainly, as far as her estate goes, to bear a part of these burdens. And hence the origine of dowry among the Greeks and Romans, brought to husbands by wives, who were not excluded from succession to their parents.*
In what respect marriage is indissolvable.In fine, since every thing ought to be avoided that is contrary to the ends of matrimony, because education, which is no less the end of matrimony than procreation, requires a perpetual society between man and wife; hence it is plain, that the liberty of divorce, authorised by some nations, is quite repugnant to the end of matrimony. And yet because an intolerable temper and behaviour of either party no less hinder this end than divorce; and a partner cannot be blamed if he severs from him an injurious associate (§21); we think divorce is not unlawful, when either of the parties behaves themselves so that the end of matrimony cannot be obtained.† Now, that, this society being dissolved in any lawful way, either may make another marriage cannot be doubted, since a partner, his partnership with one being dissolved, has a right to associate another partner, and thus enter into a new partnership.*
What is to be said of imperfect marriages.Tho’ all this be required by right reason in the conjugal society, yet it is manifest that one duty hath a nearer relation to the end of matrimony, and another a more remote relation; and therefore society between a man and a woman does not cease to be marriage, if some changes are made in it by pacts; wherefore marriage is valid tho’ imperfect; i.e. though contracted for the sake of procreation and education privately, and without any solemnity;† nor is that invalid which is called morgenatic marriage;* nor putative, or reputed marriage, of which Jo. Nic. Hertius hath published a curious dissertation.3
Of the duties that ought to be observed in a society of parents and children.
Connection.By the conjunction of which we have been treating in the preceding chapter, children are procreated, who abide in society with their parents till they themselves form new families, and go from under their parents authority. For tho’ children, when they come into the world, can neither expresly nor tacitely consent to this society; yet, because society may arise from presumed consent, if, by the nature of the thing, we may judge one to have consented (§16), and the condition of infants requires that they should live in society with others, (§16); there is no reason why we may not assert, that parents and children consent in the same end and means, and consequently that there is a society between parents and children (§13).
The end of this society is the convenient education of children.Because infants, nay, young boys and girls, are not capable of judging how they ought to direct their actions and conduct, God, who willed their existence, is justly understood to have committed the care of such to others. And since he hath implanted not only in men, but in brutes, an ardent affection to stimulate them to this duty (§26), and men contract marriage for the sake of procreation and education, or ought to have those ends solely in their view in forming this society (§ eod.); the consequence is, that this duty is principally incumbent on the parents; and therefore that there is no other end of the society between parents and children, but convenient and proper education of children.*
This end cannot be gained, unless the parents have a certain power.Education being the end of this society (§51); since it cannot be carried on without directing the actions of children, the consequence is, that parents have a right and power to direct their children’s actions; they have therefore power over their children, and thus this society is unequal and rectoreal. But as the duties of every society must be deduced from its end (§14); so this parental power must be estimated by its end; and therefore it is a right or power competent to parents, to do every thing, without which the actions of children cannot be so directed, as that the end of this society may be obtained.†
It belongs to both parents.Since the duty of education is incumbent upon both parents (§51), the consequence is, that this power must be common to both parents; and therefore, by the law of nations, this power cannot belong to the father only, as the Roman law affirms; yet, since regularly the father, as husband, has the prerogative in the conjugal society (§44), it is plain, that when parents disagree, greater regard ought to be had to the father’s than to the mother’s will, unless the father command something manifestly base and hurtful to his children: For to such things, as being morally impossible, neither mother nor children can be obliged.
It passes to grandfathers, grandmothers, tutors, nurses, preceptors, adepters.Besides, because the duty of education, whence the parental power takes its rise, is sometimes undertaken, upon the death of the parents, by grandfathers and grandmothers, or other relatives, through affection; sometimes it is committed by the parents themselves to others, whom they judge more fit for the charge; sometimes a stranger desires a parent would devolve that care upon him; it therefore follows, that this power, as far as it consists in the right of directing the actions of children, is, in these cases, devolved upon grandfathers, relations, pedagogues, and those who adopt* children, or take them under their care; and therefore all such persons may exercise the parental power as far as the education undertaken by them requires.
Parents have the power of commanding, forbiding, chastising.Since this power consists in the right of doing every thing necessary to obtain the end of the society above defined (§52); it is obvious, that parents have a right to prescribe to their children what they ought to do, and to prohibit what they ought not to do; and not only to chide and reprove the stubborn and disobedient, but to chastise them, as the circumstances of the case may require; and to use other severer methods to reduce them into good order and due obedience; provided it be done prudently, and with proper regard to age, the dignity of the family, and other circumstances.*
Whether it extends to the power of life and death?Hence it is plain, that the end of this society does not require the power of life and death over children; unless, perhaps, in a state of nature, where parents preside over a large and diffused family as its heads; and in this case they exercise such power rather as princes and magistrates than as parents.* Whence again we infer, that the law of nature does not approve of the antient rigid power of the Romans, which was afterwards disapproved of even by them; and therefore Justinian justly affirms, §2. Inst. de patri. potest. “That no other people ever exercised such a power over children as the Romans did.”
Whether parents have the power of selling, of hurting delinquents, and of acquiring by their children?Much less then have parents, by the law of nature, a right to expose their children to sale, of inflicting hurtful punishments upon them for faults, and of acquiring to themselves all that comes to their children, tho’ all these things were approved of by the antient Roman laws. For none of these things is of such a nature, that the end of society cannot be obtained without it (§52). But since this power consists in directing the actions of children (§52), parents cannot be refused the right of commanding certain work from their children, suitable to their condition, and of making gain by their labor; nor of administrating what comes to their children by the favour of men, or of providence.*
The foundation of the duties of parents to their children.We have said enough of the power of parents. As to their duties, they are very obvious. For they are easily deducible from the end of this society. Education is the end of this society, and therefore it is self-evident, that parents are obliged to every thing without which this end cannot be obtained, and to avoid every thing contrary to it (§24). But it is worth while to give a full view or idea of education, that thereby the duties, both of parents and children, may the more clearly and certainly appear.
Of education, wherein it consists.The natural affection implanted in parents, inculcates, as we have already observed (§26) the obligation of parents to educate their children. Now, the love which parents owe to their children, is a love of benevolence (l. 1. §85), which consists in delighting to preserve and encrease, to the utmost of our power, the happiness of an inferior and more imperfect being (ibid.); the consequence from which is, that parents are not only bound to take care of the conservation of their children, but likewise to lay themselves out to promote their happiness to the utmost of their power. And in this does education consist, by which nothing else is understood but the care of parents to preserve their children, and to make them as perfect and happy as they can.*
It is the duty of parents to preserve the health, soundness, &c.If parents be obliged to the preservation of their children (§59), the consequence is, that they are not only bound to provide for them all the necessaries of life;†i.e. cloaths and food, according to their condition of life, but likewise to take care of their health, and to preserve their bodies sound and intire in all their members, as much as that lies in their power; and therefore to keep them from gluttony, luxury, lasciviousness, and all the other vices which tend to enervate, weaken, or hurt their bodies; and, on this account, not rashly to leave them to themselves, or without some guardian.
What is contrary to this duty.To this duty are directly contrary, endeavours to bring about abortion, exposing infants, abdicating and disinheriting them without a just cause;* de-nying them necessary sustenance, and other such crimes, repugnant to the end of this society. They chiefly are very blameable, nay, unworthy of the name of parents, who abandoning their children, or, by their carelesness about them, are the cause of their receiving any hurt in any of their senses, organs or members; this impiety of the parents is so much the more detestable, that the soundness of their senses, and the integrity of their members, belong not only to the preservation, but to the happiness of children.
The understanding of children ought to be improved.Since parents are obliged to promote the perfection and happiness of their children to the utmost of their power (§59), to which belongs the cultivation of their understandings, in order to render them capable of distinguishing true good from evil (l. 1. §146), it is certainly the duty of pa-rents to instil early into the minds of their children the principles of wisdom, and the knowledge of divine and human things, or to commit them to the care of proper masters to be polished and informed by them, and to save no expence in instructing and improving them, within their power, and agreeable to their rank. Whence we also conclude, that parents are obliged to give due pains to find out the genius of their children, that they may choose for them a kind of life suitable to their genius, rank, and other circumstances; and that being chosen, to exert themselves to the utmost for qualifying them to act their part on the stage of life with applause.*
Their will or temper ought to be rightly framed.Since the will or temper is the seat of that love by which we perceive true good or happiness, parents do nothing, whatever care they may take about perfecting the understanding of their children, if they neglect the formation of their will or temper. Parents, who take not proper pains and methods to inspire early into their minds the love of piety and virtue, but train them up to vice, if not to gross and manifest vices, yet to cunning, avarice, ambition, luxury, and other such vices, by representing these vices to their minds under the false shew of prudence, frugality, spirit, taste, and elegance. Parents, in fine, who set a pattern of wickedness before their children, and sadly corrupt their minds by a continued course of vitious example.*
Above all the mind is to be recalled from the pursuit of pleasure.Nothing is so flattering to youth as pleasure and ease; and therefore parents ought to take care not to educate their children too softly and delicately; not to suffer them to become languid and indolent, to dissolve in ease and laziness; not to breed them up to luxury and high living; but to inure them to hardship, to bear heat and cold, and to content themselves with homely fair, with whatever is at hand. For while the children of peasants are thus bred up to work, and to homely diet, do we not see how they surpass the youth of higher birth in health and vigour?*
And from bad companions.Nothing so much depraves youth as bad company; and therefore parents ought to be watchful that their children do not associate themselves with corrupt companions, but with their equals, and such as are well educated. For tender minds are prone to imitation,† and easily moulded into any shape by example, but averse to admonition; and the danger of their being corrupted is so much the greater, that they are so little capable of distinguishing flatterers and parasites from true friends, corrupt from good masters, or inducements to vice from wholesome precepts.
Children owe their parents a love of reverence and obedience.The duties of children to their parents are easily deducible from the state and right of parents, and from the end of the society we are now considering. For since parents have the right of directing the actions of their children, hence it is plain, that they ought to be regarded by their children as superior and more perfect than them; and consequently that they ought to be loved by them with a love of reverence and obedience* (l. 1. §85); whence it follows, that children ought to pay all reverence and obedience to their parents (l. 1. §86), such reverence and obedience as is due to their perfection and superiority (l. 1. §87).
Veneration is due to parents.Because parents ought to be revered with a respect suitable to their perfection (§66), none can doubt but children are bound to prefer their parents before all others, to speak honourably to them, and of them; yea, to take care not so much as to shew disrespect by any look. And tho’ it may happen, that one of the parents, or both, may not have the perfections requisite to beget veneration (l. 1. §87),* yet it is the duty of a good child to overlook these imperfections, and rather to bear injuries from them with patience, than to omit any thing which nature itself requires of children.
As likewise filial fear.Since parents have power or right to direct their childrens actions, and to curb and correct them, (§55), the consequence is, that parents ought not only to be loved and revered, but feared. From this mixture of love and fear arises filial fear (l. 1. §131);† and therefore we cannot choose but con-clude from hence, that good children will only have this filial fear of their parents; and thus they will not be so much afraid of the pain, the castigation and reprehension of their parents will give themselves, as of provoking their parents indignation against them by their vices.
As also obedience.But because obedience is likewise due to parents, (§66), children cannot escape reproof and chastisement, if they do not readily and cheerfully obey their parents commands; and the morosity and severity of parents does not authorize children to withdraw their obedience. Yet, because right reason teaches us, that the greater the perfection and excellence of a being is, the greater veneration and obedience is due to that being (l. 1. §87),* the consequence is, that if parents command any thing that is base and immoral, or contrary to the divine will, and to the laws of the country, more regard is to be had to the divine will and the laws, than to the commands of parents.
How parental power is dissolved.Moreover, since the necessity of the parents right to direct childrens actions is the sole genuine foundation of parental power (§52), none can question but that end being gained, the means must cease; and therefore the parental power does not continue till death, but expires then, when male-children are come to such maturity of years and judgment, that they are capable of directing themselves, and can make a new family, or when daughters and grand-daughters marry, and go out of their father’s or grandfather’s house into other families; so that the law of nature does not approve that rigour of the old Roman law, which placed children, with their wives and children, under the father’s power, till fathers or grandfathers, of their own free accord, emancipated and dismissed them.*
Parental power being dissolved, love ought not to cease.But when the parental power is dissolved (§70), that love which nature hath implanted in the breasts of parents towards their children ought not to cease. And therefore it is the duty of parents to delight in the welfare and happiness of their children, even after they are separated from them, and out of their family; to assist them with their counsel and their wealth to the utmost of their power, and to be no less beneficent to them than to those which are still in their family; and, in fine, to do all they can to promote their happiness: Whence it is also evident, why emancipated children ought to succeed to intestate parents as well as those who are not.†
Whether it be in the power of the parents and children to dissolve the parental power at their pleasure.Hence we also conclude, that it is not in the power of parents, at their will and pleasure, to dismiss children, of whatever age, from their family, nor to retain adult children under their power so long as they please; but yet, that children are not excusable in deserting parents against their will, and in refusing to submit to their authority. For as it is unjust in parents to omit any thing without which the end of this society cannot be attained (§24); so children cannot, without injustice, shake off their parents authority; because what one would not have done to himself, he ought not to do to others (l. 1. §88).
The obligations of children to parents after parental power is dissolved.As the love of parents ought not to be extinguished when parental power is dissolved (§71), so that love of veneration which children owe to their parents ought much less to cease with parental power; yea, since every one is bound to love his benefactor (which love is called gratitude) (§226); the consequence is, that children, after the parental power no longer takes place, are obliged to testify gratitude towards their parents every way; not merely by words, but to repay benefits by benefits; and therefore to undertake nothing of any moment, or that regards the honour of the family, (such as marriage) without their consent; nay, to supply them with the necessaries and conveniencies of life, if they want them. This kind of gratitude, tho’ it belongs to the duties of imperfect obligation, yet it is of such a peculiar nature, that civil laws may reduce children, unmindful of their filial duties, into good order* (l. 1. §227).
The mutual obligation of tutors and pupils.If parents die before children have arrived at a proper age to conduct themselves, the nature of the thing requires that their education should be committed to others, who are called tutors or guardians; and therefore guardianship is nothing else, but the power of directing the actions of children, and of managing their affairs and interests in room of their parents, till the children are come to such maturity of years and judgment, as to be fit to govern themselves* (§54). From which definition we may infer, that tutors have the same power with parents, if it be not circumscribed by the civil laws within narrower bounds; and are obliged to the same fidelity, and all the same duties as parents; and, in fine, that pupils or wards are no less obliged to veneration, gratitude and obedience, than children; and that this obligation is so much the more strict, that the benefit done them is greater, when performed not in consequence of any natural tie, but from pure benevolence.
Concerning the duties belonging to masters and servants, and that despotical society.
Wherein the despotical society consists, and its origine.We now proceed to consider the society of master and servants, which is not, by nature, so necessary as the more simple societies of which we have already treated, but yet has been most frequent among mankind from the most antient times. And by it we understand a society between a master or mistress, and men or women-servants, in which the latter bind themselves to promote their master’s interest by their work and labour, and the former bind themselves to maintain them; nay, sometimes to pay them a certain hire or wages. For since such is the condition of mankind, that one stands in need of another’s work; and there is no reason why one may not procure to himself what he wants by another’s help (l. 1. §325); the consequence of which is, that we may stipulate to ourselves the help or work of others by an intervening contract, and thus form between us and servants a despotic society, which is evidently, in its nature, unequal and rectoreal (§18).
What is a master or a mistress, and what a man or woman-servant?By master or mistress we therefore understand a person who employs others to promote his interest, and obliges himself to maintain them, or over and above to pay them certain wages. Servants are persons who bind themselves to promote their masters interest by their labour, either for their maintenance only, or for wages, together with maintenance. Now, from these definitions it is manifest, that servitude of the latter kind is mercenary, and its foundation is none other than a contract of letting and hiring; the former is perfect servitude, and may be called obnoxia, property;* and its foundation is dominion over the persons of servants acquired by a just title.
Some give themselves up to perfect servitude on account of their dullness and incapacity.That mercenary servitude is not contrary to the law of nature none can doubt; but neither is the other servitude, since experience teaches us, that some men are naturally of so servile minds, that they are not capable to govern themselves or a family, nor to provide for themselves the necessaries of life.† But since every one ought to choose the kind of life he is fitted for, (l. 1. §147), and such persons are fit for no other kind of life, but to serve others for their maintenance, they certainly do nothing contrary to their duty, if they give themselves up perpetually to others on that condition.
Some thro’ extreme poverty.Besides, extreme poverty, and other private or public calamities, may induce some, who are not stupid, to become servants rather than perish. For since man is obliged to preserve his life, and to avoid death and destruction (l. 1. §143), and of two imminent evils, the least ought to be chosen; it follows, that he whom providence hath placed in this situation, is not to be blamed, if, there being no other honest way of avoiding death, he give himself up in servitude.*
Some conquered in war accept of this condition.Again, the fury of war much augmented the number of servants. For because all things are lawful to an enemy against an enemy, it is law-ful to kill a subdued enemy (l. 1. §183). But because he who can deliver himself from danger without hurting his aggressor, or by a lesser evil, ought not rashly to proceed to killing (ibid. §181), it is certainly not unjust for a conqueror to save the vanquished, and lead them captives, that they may no longer have it in their power to hurt him; and to make servants of them, that he may not have the burden of maintaining them gratis; nor can they be blamed who choose to save their lives on these terms, rather than perish.*
Some are born servants.But these kinds of perfect servitude cannot but produce the effect which one is detruded into by the very fortune of birth. For since the foundation of perfect servitude is dominion acquired by a just title (§76), and all those we have already mentioned are just titles (§76 & seq.) the consequence is, that all these servants are under the just dominion of their masters. But since out of lawful matrimony (which can hardly take place among some of those sorts of servants)† the offspring goes along with the mother (l. 1. §252) it is no wonder that the offspring of such women-servants undergo the same condition with the mother, as an accession to her; and therefore those kinds of servants are known to all nations, which were called by the Romans vernae.
The power of a master over a mercenary servant.These principles being fixed, it is easy to find out the duties of masters and servants in this society, and what power masters have over their servants. For as to mercenary servants, since they are only bound by a contract of letting and hiring, (§76) the master has no other power over them, than to appoint the work to them for which they bind themselves, and to make profit by their work, and to force them to serve during the time for which they engaged: He has no right to exact any other work or service from them, but that for which they bind themselves; and much less to chastise them with great severity; tho’, if the servant do not fulfil his contract, the master may not only mulct him of a part of his wages, but turn him away from him as incorrigible (§21).
The mutual duties of this master and servant.As therefore it is the master’s duty to fulfil his contract, and not to exact other service than was contracted for from his servant, and to maintain him as persons of that condition ought to be, and to pay him his promised wages;* so the servant is bound to reverence and obedience to his master as his superior; to perform his contracted service to him as his hirer, and to promote his interest with all fidelity as his partner.
The power of a master over a perfect servant with respect to the disposal of him.Perfect servants, we have said, are in dominion, (§76). But since he who hath the dominion of any thing, hath the free disposal of it (l. 1. §306); the consequence is, that a master may impose upon such a servant any work he is capable of; make all profit by him; claim him and his children as his property, and sell or alienate him and them upon any terms, unless the servant, who voluntarily delivered himself into servitude, made this condition, that he should not go out of the family, or be alienated to any other master. As to the power of life and death, none will deny that it belongs to such masters (l. 1. §308) unless either convention or law forbid it. Much less then can it be denied, that such masters have a power to coerce and chastise such servants according to the exigence of the case, provided the master still bear in mind that his servant is a man, and by nature his equal* (l. 1. §177).
With respect to possession and vindication.Since to a master belongs the possession of his own, and the right of reclaiming it from every person (l. 1. §306) hence it follows, that a master may defend himself in the possession of his maid or woman-servant by any means, and reclaim his servants, whether they desert, or whether they are unjustly carried off, from any one whomsoever, with the fruits or profits, and accessions of the possession; and, in the first case, to punish the renegade according to his desert, and to take proper and effectual measures to prevent his taking the same course for the future;* unless this effect of the master’s dominion be restricted by the civil laws (l. 1. §317).
The duties of masters to such servants.It will not now be difficult to ascertain the mutual duties of masters and such servants. For because an obnoxious or perfect servant is in dominion, (§76) and therefore a master may make all the gain he can of such (§83), so that such a servant hath nothing in property; the consequence is, that the master is obliged to maintain such a servant, and this obligation does not cease, then especially, when he is not able to perform his service.* And since a servant is, with regard to nature, equal to his master (§83) it is obvious, that the master is culpable if he injuriously hurts his servant; and he is worthy of commendation, if he endeavours to reform a disobedient servant by benefits rather than by cruel methods.
The duties of servants to their masters.Because as many different kinds as there are of servitude, so many duties of servants there are, as correlates to the several rights of masters (l. 1. §7) hence it follows, that perfect servitude obliges a slave to every sort of work or service, to promote his master’s interest to the utmost of his power, and to bear chastisement and correction, and the disposal of him and his at his master’s will, with patience. That he acts contrary to his duty, if he deserts his master, or defrauds his master, by stealing, as it were, himself away from him; and that he ought rather to endeavour to merit his liberty and manumission by faithful and cordial service, thus rendering himself worthy of so great a benefit.
How servitude is dissolved.From what hath been said, we may easily understand how this society is dissolved. Mercenary servitude, depending upon a contract of letting and hiring, is dissolved in the same manner such contracts are dissolved, and more especially by the expiration of the time contracted for. Perfect servitude is principally dissolved by manumission. For since any one may derelinquish or abdicate his own (l. 1. §309), there is no doubt but a master may renounce his right to a servant, which renunciation was called by the antients manumission. Besides, renunciation being a kind of alienation, and seeing in alienation one may except or reserve what he pleases (l. 1. §278) it is plain that manumission may likewise be granted upon any honest conditions whatsoever.*
What a freed man is, and what are his duties.Those slaves who are manumitted by their masters are called libertini, and the liberti of the manumittor. Now, since masters, who give liberty to their slaves, confer upon them the greatest benefit they can bestow; and every one is obliged to love him who bestows favours upon him (l. 1. §226); slaves set at liberty (liberti) are the most ungrateful of mortals, unless they love the patrons who conferred so great a blessing upon them, and they are obliged to pay the highest veneration to them, and not only to perform to them cheerfully all that their masters stipulated to themselves upon giving them their liberty (§87) but likewise to be ready to render to them all other good offices in their power; or, if the power of serving them be wanting, at least to shew gratitude towards them in every manner they can* (l. 1. §228).
Of the complex society called a family, and the duties to be observed in it.
What a family is.We observed that lesser or more simple societies may coalesce or unite into larger and more compounded ones (§17): and of this the societies we have described afford us an example. For when these join and consent into a larger society, hence arises a family, which is a society compounded of the conjugal, the paternal and despotic society.* Whence the husband and wife, parents, masters and mistresses, with respect to this society, are called fathers and mothers, or heads of a family; the children are called sons and daughters of the family, and the men or women-servants are called domestics.
To whom the direction or government belongs in this society.But because the larger a society is, the less practicable is it that so many members should find out necessary means for attaining the end of the society by common consent and suffrage (§18) it is evident that this society must be unequal and rectoreal; and therefore that the power of directing the rest to the end of the society, must be transferred to one of the members. Now, since the husband and father of the family has a certain authority or prerogative over the wife (§44) and his command, as father, ought to prevail over the mother’s when they disagree (§53); and since he hath, as master, undoubted power over his servants of whatever sort; (§81 and 83) the power of directing the actions of the whole family must belong to the father;* but in such a manner however, that the mother is obliged, as sharer of his good or bad fortune, to give him all the assistance she can of every kind (§42).
The end of this society in a state of nature, and in a civil state.Now, such a family is either in a state of nature, subject to none, or it is united with other families into one state. In the first case, the end of this society is not only to acquire the things necessary to its happy subsistence, but likewise to defend itself against all invaders or enemies; and therefore they judge right, who consider such a family as a species of the lesser states or republics.† In the latter case, because every family is protected against the injuries of their fellow citizens or subjects by judges, and against common enemies, by the common strength of the republic, its end can be no other but the acquisition of things necessary to its more comfortable and happy subsistence.
The power of the head or father in a state of nature.But since the end of this domestic society, in a state of nature, is not only to acquire the necessaries to convenient and comfortable living, but likewise to defend itself against injuries (§91) the consequence is, that the father of the family has all the rights necessary to attain to these ends; and therefore he may not only manage the family estate and interest as seems best to him, and allot to every one in the family his care and task, and call every one to an account for his management; but he has likewise all the rights of a prince or supreme magistrate in his family, and consequently can make laws, punish delinquents, make war and peace, and enter into treaties.*
In a civil state.On the other hand, since the end of a family, coalited with other families into the same state, can be no other but the acquisition of necessaries and conveniencies (§91), it is very plain that such eminent rights do not belong to the heads of such families, but those only which we described (§92), without which the family cannot have a comfortable subsistence; and in this case the mother has some share; whereas the modesty and character of her sex does not permit her to partake of those rights which belong to the father of a family, as the supreme magistrate of the family.
Simple societies ought not to be an impediment to this more complex society.Moreover, since in more complex societies the interest of the more simple or lesser ought not to be opposed to that of the larger (§23), it is plain, that the conjugal, the paternal, the domestic societies ought not to be an obstacle to the end and interest of the whole united family;* and hence arise certain duties peculiar to this complex society, some of which belong to the father and mother with regard to one another; others to both, with respect to the other members of the family; others to the members of this family, with respect to the father and mother of the family; and others, in fine, to the members with relation one to another. See Wolfius de vita sociali hominum, §194.1
The mutual duties of the father and mother of the family towards one another, and their duties to the family.Since the father hath the principal part or character in this society (§90); but so, that the mother is obliged to give him all possible assistance in every way (ibid.); it follows, that it belongs to the father of the family to command what he would have done, to maintain the whole family, and each member, as every one’s condition requires, to coerce and punish those who do any injury or dishonour to the family, suitably to what the rights of a more simple society permit, and to support the dignity and authority of the mother; and it is her duty to use her utmost care that the children and servants obey their orders;* to act in the husband’s room in his absence; and, in fine, to shew an example to the whole family of veneration and obedience, being sure to have so much the more authority in the family, in proportion as she studies to maintain and augment that of her husband.
The duties of both with regard to the simpler societies.Now, if the simpler societies ought to be so managed, that they may not be a hindrance to the good of the whole family (§94), it is manifest that the father acts contrary to his duty, if he is an impediment to the mother in her care about the education of their children; and she is much less excusable, if she makes the rebellious children worse by her indulgence; and both are in the wrong, if they by their discords and jarrs, are a bad example to the children, or if they are negligent of their education and behaviour. In like manner it is evident, that a domestic society must be in a very bad state, if the children are left to the care of the servants, and are allowed to converse with them at their pleasure; or if, on the one hand, the servants give ill advice to children, and induce them to, or assist them in any crime; or if, on the other hand, the children are suffered to treat the servants rudely.†
In a well regulated family all is in good order.Hence it is plain, that the whole matter lies in preserving good order in a family. But then are things said to be done in order, when all things are managed and done as the circumstances of each affair requires. And therefore in a family every one ought to have some business or task appointed to him, and to give a strict account of it; and each person ought to be inured to do his business, not only with due care and diligence, but also at a convenient time, and in a proper place; and, in fine, all the furniture, and every utensil ought to be kept neat, clean, and intire, and every thing ought to be found in the place appointed for it, or where it is proper and convenient it should be placed.*
The duties of the inferior members of a family.From what hath been said of the duties of the whole family, it is obvious, that since all the members expect aliment from the head, each suitably to his rank (§95) every one of them is obliged to take care of the common interest of the whole body, and of that part committed to his trust in particular, to render reverence and obedience to the father and mother of the family; and, above all, to do nothing that may tend to interrupt the conjugal harmony, or to hinder the education of the children; or to bereave the head of the profits he might justly expect from the labour, honesty, and diligence of his servants.
[4. ] Pope, Essay on Man, epistle 4.1, lines 49–56.
[5. ] The first half of this quotation is from Harrington’s Oceana (see The Political Works of James Harrington, 172–73); the second (from “The six will acquire an authority . . .”) is from his Prerogative of Popular Government of 1658, bk. I, chap. 5 (Political Works of James Harrington, 416–17).
[6. ] Harrington, Oceana, 172, in Political Works of James Harrington.
[7. ] Ibid., 163. Harrington’s reference is to Livy’s history of Rome (see Livy, The Early History of Rome, bk. I, chap. 7).
[* ] Hence the Greeks justly called the conjugal state, the root of all other societies, and, as it were, the seminary of mankind, because without it man would be but of a single age, as Florus says of the Romans while they had not wives, Hist. 1. 1. The matter is reasoned most philosophically by Seneca the tragedian in Hippolyt. v. 466.Providit ille maximus mundi parens,Quum tam rapaces cerneret fati manus,Ut damna semper sobole repararet nova.Excedat, agedum, rebus humanis Venus,Quae supplet ac restituit exhaustum genus:Orbis jacebit squallido turpis situ.
And a little after he adds,Caelibem vitam probetSterilis juventus: hoc erit, quidquid vides,Unius aevi turba, & in semet ruet.
[[Seneca (the Younger), Hippolytus, 466–67: “The almighty father of the world provided for this when he saw that the hands of Fate were so greedy, so that losses would always be made good by new offspring. Well then, if Venus were to depart from human affairs, she who supplies and restores an exhausted race; the world will lie debased in a foul state.” 478–81: “Let sterile youth approve the celibate life: this, which you see, will be the only crowd of a single generation and it will collapse upon itself.”
[* ] Men, as Justinian observes, l. un. §5. C. de rei uxor act. are strongly stimulated by a natural impulse to the care and education of their children. Nay not only are men thus impelled by nature, but the brutes likewise, who do not abandon their offspring till they are capable of providing for themselves. But seeing God does nothing in vain, it is evident that God requires of man, that love and care of his offspring, which is the only end for which this instinct could have been implanted in us by him. Hence Euripides justly observes, in a passage already quoted in Medea, v. 1098.Sed quibus in aedibus est liberorumDulce germen, eos, video curisConfici omni tempore:Primum quidem, quo pacto illos bene educent,Et unde victum relinquant liberis.
[[Euripides, Medea, 1098–1102, ed. Elliott: “But as for those in whose homes sweet children are born, I see that they are consumed with care all the time: first, how they are to bring them up well and from where they are to leave a means of support for their children.”
[* ] For certainly, it would be better not to procreate, than to give a bad education to children. It would be but a small loss to mankind if every one was not equally prolific. But mankind receive great hurt from any one who is a disgrace to the kind on account of his bad education. How unhappy was it for mankind that there was a Nero? And therefore Juvenal says with great gravity and judgment, Sat. 14. v. 70.Gratum est, quod patriae civem populoque dedisti,Si facis, ut patriae sit idoneus, utilis agris,Utilis & bellorum & pacis rebus agendis.Plurimum enim intererit, quibus artibus, & quibus hunc tuMoribus instituas.
[[Juvenal, Satires, Satire 14, lines 70–74, in Juvenal and Persius: “Thank you for producing a citizen for your fatherland and your people, just so long as you make him an asset to his fatherland, capable of farming, capable of action in war and peace alike. The fact is, the habits and behavior you train him in will make a huge difference.”
See likewise Seneca of benefits, 3. 30.]]
[† ] That is, if real force was used. For often in ancient times maids suffered an agreeable violence, not that they were averse to the marriage, but that they might not seem to rush into an embrace. This was an ancient custom, as is plain from Dion. Halicarn. antiq. Rom. 2. p. 100. where, to excuse the rape of the Sabines by the Romans, he says, “That this kind of rape was not an injury, but done with a view to marriage, according to a very old custom among the Greeks, which did honour to the women desired in marriage.” [[Dionysius of Halicarnassus, Roman Antiquities, vol. 1, bk. II, chap. 30, p. 401. This was practised in other nations, it being judged more decent, that a virgin should be taken with an appearance of violence, than that she should give herself up to a man of her own accord. And that such force is not repugnant to consent is very manifest.]]
[* ] It may seem odd, that whereas the other Latin nations allowed an action upon betrothment, ad id quod interest, if the pact was not fulfilled, (Gell. noct. Attic. 4.4.) the Romans left the betrothed persons at perfect liberty to renounce, l. 1. c. de sponsal. l. 2. c. de repud. But there being amongst the Romans so much liberty with respect to divorce, it is impossible that this pact could be firmer than marriage itself was among them, or that there could be less latitude with regard to it than there was with respect to divorce after marriage.
[* ] In this respect Lycurgus excelled all other legislators. For he, as Xenophon informs us, de rep. Laced. cap. 1. §6. did not allow every one to marry when he pleased, but provided that matrimony should be contracted when persons were in the best condition for propagation. [[Xenophon, “Constitution of the Lacedaemonians,” p. 139 in Xenophon, Scripta minora. This he thought necessary in order to the propagation of a wholesome vigorous race. And whereas he observed that many parents were fitter to propagate than to educate, he gave the care of education to the public; he made it a matter of public concernment; and an inspector of the youth was appointed from amongst those who had been employed in the supreme magistracy, who was called Paedonomos.” See Xenoph. ibid. cap. 2. §2. And this is a piece of civil prudence which ought not to be neglected in other states.]]
[* ] For what is more impudent and shameless, than for an old woman, who as Martial says, Epig. 3. 64.Cum tibi trecenti consules VetustillaEt tres capilli, quatuorque sint dentes,. . . . . . . . . . . . . . . . . . . . . . . .Verumque demens cineribus tuis quaeris.
[[Martial, Epigrams 3.93. 1–2 and 19 (not 64): “Although, Vetustilla, you have seen three hundred consuls out, and have three hairs and four teeth . . . you madly search for a man for your burnt-out ashes [reading virum, not verum].”
These sort of matches are tolerated in commonwealths, tho’ they do not deserve the name of marriage (since, as Quintilian expresses it, Declam. 306. quaedam & nubendi impudicitia est) “Even marrying may involve a sort of wantonness” (Quintilian, Lesser Declamations, vol. 1, 306.29, p. 183); but of them Pufendorff of the law of nature and nations says very justly, 6. 1. 25. “Perhaps we shall not speak improperly if we call these honorary marriages, as we term those offices honorary, in which a title only is conferred, without action or business. Nero (Sueton. cap. 35.) when he deserted his wife Octavia’s bed, excused himself with saying, ‘Sufficere sibi uxoria ornamenta’; he was contented with the bare ornaments and badges of marriage; in allusion to the triumphalia ornamenta, sometimes bestowed on persons without the real solemnity of a triumph.”]]
[† ] Such marriages therefore among the Egyptians were absurd, of which see Grotius, ad Deut. xxiii. 2. as are those likewise among the Turks, of which Ricaut, in his state of the Ottoman empire, 2. 21. And yet, even among Christians, it hath been made a question whether such marriages are not lawful. There is a little treatise on this question, entitled, de Eunuchi conjugio, reprinted Jenae, 1737. [[Hieronymus Delphinus, Eunuchi conjugium Capaunen-Heyrath. But such things may well be reckoned amongst those prodigies of which Juvenal speaks in his time, Sat. 1. v. 22.Quum tener uxorem ducat spado, Maevia TuscumFigat aprum, & nuda teneat venabula mamma:Difficile est, satyram non scribere.
Juvenal, Satires, Satire 1, lines 22–23 and 30, in Juvenal and Persius: “When a womanly eunuch takes a wife!—when Mevia shoots a Tuscan boar, holding the hunting spears with one breast bared! . . . then it is hard not to write satire.”
[* ] This was the opinion of the Jews, as Selden has shewn, jure nat. & gent. secundum discip. Hebraeorum, 5. 3. But it cannot be inferred from Gen. i. 38. for that is not a command but a blessing: And it is absurd to accuse those, who prefer celibacy for just reasons to marriage, of not consulting the interests of mankind, as if mankind could suffer great loss by the not marrying of one or a few, who are hindered from it by allowable reasons. They seem to have forgot St. Paul’s precept, 1 Cor. vii. who, leaving the paths of Christians, go into this Jewish opinion.
[* ] These impure conjunctions are not designed in order to propagate, but to satiate lust: And the ordinary effect of them is, that the persons who thus copulate are industrious to prevent progeny by such conjunctions. And if nature disappoints this their wicked intention, so that children are procreated and brought into the world contrary to their desire and intention, the parties are so far from having had any view to education, the other end, that they (the father chiefly) utterly neglect the offspring, leaving them to the public, as an uncertain birth; whence it happens, for the most part, that such misfortunate children become rather a disgrace and a pest to mankind, than an ornament. Now, since all these miserable consequences ought to be prevented, it is plain that magistrates do not act unjustly, when they oblige lewd persons to provide for their bastards, and force men to marry the women they had debauched under promise of marriage.
[1. ] Πολυανδρία: polyandry, plurality of husbands. This is not a classical word.
[† ] And therefore the contrivance of Papirius Praetextatus to elude his mother, which is so well known, was very acute. See Gellius noct. Attic. 1. 23. But so far were the Romans from permitting a plurality of husbands, that the most barbarous nations never admitted of it, tho’ some have allowed the promiscuous use of wives. See Pufendorff, law of nature, &c. 6. 1. 15.
[* ] Those are the principal arguments by which the defenders of polygamy support their opinions taken from reason. And as for those fetched from the sacred writings, they belong to another chair. This question has been greatly agitated by Huldericus Neobulus, of whose book on the subject see Seckendus Hist. Lutheran. 3. 79. addit. 3. litt. 10. p. 281. Bernardus Ochinus, who is expresly refuted by Beza de polygamia, and by Jo. Gerard de conjugio, §207. of which author see Bayle’s dictionary sub Ochinus; by Jo. Lyserus, who under the assumed names of Theoph. Alethaeus, Vinc. Athanasius, & Gottl. Wahrmundi, has published several books on this subject, of which see Vinc. Placcius Theatr. pseudonym. n. 97. 277. 2867. Against those authors have written Jo. Brunsmannus, Jo. Musaeus, Dickmannus, Feltmannus, Gesenius (who has been injurious to Pufendorff) Jo. Meyerus and others. The defence of polygamy hath been undertaken by one whose better studies such a design ought not to have interrupted, Daphnaeus Arcuarius, not to mention the late writings of a lawyer of Dantzick, in every body’s hands, which have been of very little service, if not of great hurt to the church. [[Huldricus Neobulus (i.e., Johann Lening, 1491–1566) was a German Protestant theologian who defended the second marriage of the Protestant landgrave Philip of Hessia. Seckendus (i.e., Veit Ludwig von Seckendorff, 1626–92) was a Lutheran governmental administrator and writer, “Cameralist,” and author of Commentarius historicus et apologeticus de Lutheranismo. Bernardinus Ochinus (1487–1564) was an Italian Protestant convert from Catholicism and radical reformer. Theodor Beza was a Calvinist theologian and author of Tractatio de polygamia (Treatise on polygamy), which was reprinted several times in the late sixteenth and the seventeenth century and was directed against the opinions of Ochinus. Johann Gerhard (1582–1637) was a German theologian, author of the Loci theologici (Theological problems), which included a volume on marriage and related questions. See Pierre Bayle (1647–1706), Dictionnaire historique et critique, 672–79. Johann[es] Musaeus (1613–81) was a Lutheran theologian; Gerhard Feltmann (1637–96) a German jurist. Johann Lyser published Alethophili Germani discursus inter polygamum et monogamum de polygamia (A discourse by a truth-loving German between a polygamist and a monogamist on polygamy), a response to Friedrich Gesenius’s Ad Sincerum Warenbergium Suecum Epistola seu Dissertatio super polygamia simultanea, which had been a reaction to one of Lyser’s earlier writings, the Sinceri Wahrenbergs Kurtzes Gespräch von der Polygami. The work by Vincenz Placcius, Theatrum anonymorum et pseudonymorum, is a key to authors’ pseudonyms. See also Johann Brunsmann, Monogamia victrix: sive orthodoxa ecclesiae Christianae sententia, de unis duntaxat eodem tempore concessis Christiano nuptiis, a criminationibus vindicata; Johann Meyer, Pyrrhonii und Orthophili Unterredung von der im nechsten Jahr unter dem Nahmen Daphnaei Arcuarii ans Liecht gekommenen Betrachtung des . . . Ehestandes. Daphnaeus Arcuarius was the pseudonym of Lorenz Beger, who wrote Daphnai Arcuarii Kurtze, doch unpartheyisch- und gewissenhafte Betrachtung des in dem Natur- und Göttlichen Recht gegründeten Heiligen Ehstandes. It is not clear who the lawyer from Danzig is.]]
[* ] This is most certain, that discord, jealousies, envy, and hatred, must arise among many wives. But in this intestine war, what place is there for harmony, or consent in the education of children of different and jarring mothers? The families of Abraham and Jacob saw such sad effects, Gen. xvi. 5. xxi. 9. xxix. 30. xxx. 1. And what may not happen when men maintain at home many wives, which instead of being virtuous and good, are furies?
[* ] For no reason can be given why more regard should be paid to the primitive institution of marriage in the question about divorces, than in that about polygamy. Nay, from what our Saviour says of divorce, we may draw an argument against the lawfulness of polygamy. For if he who unjustly divorces his wife and marries another, be guilty of adultery, he is certainly much more guilty of adultery, who, while his marriage subsists, takes another wife, because the reason given by our Saviour, viz. that God, when he instituted matrimony, willed that “two should become one flesh, Mat. xix. 5.” is no less an obstacle to polygamy than to divorce.
[† ] It is known that in the eastern countries, those who have plurality of wives, keep them in a Seraglio, as in a prison, and that they are no better than servants. Hence Aristotle. Polit. 1. 2. says, That among the barbarous nations, wives and servants are of the same rank. See a remarkable passage in Plutarch. in Themist. p. 125. “They are confined by eunuchs; and the education of children, of the male-kind especially, is seldom trusted to the mother, but for the most part, to some eunuch or servant. Now, how contrary all this is to the end of the matrimonial society, is too obvious to be insisted upon.” [[This passage does not appear to be in Plutarch’s life of Themistocles. See Plutarch, Lives, vol. 2.]]
[2. ] This should be “atque ipsa utilitas, iusti prope mater et aequi”: “Expediency alone, we might say, is the mother of what is just and right” (Horace, Satires I, 3, l. 98).
[* ] For nature cannot approve of contradictory things, but such are the obligations of wife and mother, father and brother, mother and sister: They cannot subsist in the same person without the greatest confusion. Such marriages therefore cannot be lawful which confound these relations together in one and the same person, as in the marriage of Hersilus and Marulla, according to an old epigram.Hersilus hic jaceo, mecum Marulla quiescit:Quae soror, & genitrix, quae mihi sponsa fuit.Me pater e nata genuit: mihi jungitur illa:Sic soror & conjux, sic fuit illa parens.
[[“I, Hersilus, lie here, and with me rests Marulla, who was sister and mother and wife to me. My father conceived me from his daughter; she was joined to me: so she was my sister and wife, so she was my parent.”
Such marriages were looked upon by the Pagans as contrary to nature. See Ovid, Metam. 10. v. 9. where Myrra thus speaks:Tunc soror nati, genitrixque vocabere fratris?Nec, quod confundas & jura & nomina, sentis?
Ovid, Metamorphoses 10, line 348, vol. 2: “Will you be called the sister of your son, the mother of your brother?” and line 346, “And do you not think how many ties, how many names you are confusing!” though original text reads “Et quot” for “Nec”—“Think how many ties, . . .” etc.
Among collaterals, the same degree of confusion is not to be feared: Yet a certain confusion of relations cannot be avoided, if the same person be sister and wife. And therefore we think it better to assert, that such marriages are not permitted, unless absolute necessity render them excusable. And thus it is very accountable why the children of Adam married without being guilty of incest, tho’ they are who now do the same. For this prohibition of certain degrees is of those laws of nature which must yield to providential necessity (l. 1. §162).]]
[* ] There is no barbarous nation which hath not instituted some rites of marriage: And therefore it is not to be wondered at, if all civilized nations have; such as the Hebrews, the Greeks and Romans, &c. concerning which customs, antiquaries have wrote such large and learned volumes, that I need not say one word on this subject. Let me only add, that the Romans, when their ancient discipline degenerated, took little or no care in this matter; and hence it was, that it was frequently so difficult to determine whether a woman was a wife or a concubine; and it was necessary to have recourse sometimes to the articles or instruments of dowry to determine this question, l. ult. Inst. de nupt. and sometimes the thing could only be judged of from the condition or quality of the woman, l. 24. D. de ritu nupt. l. 31. pr. D. de donat. But how easily might these disputes have been avoided by performing marriage with certain rites?
[* ] Indeed what effect this community of goods ought to have after the decease of one of the parties, or what part of the common substance belongs to the surviver, and what to the defunct’s heirs, must be determined by pacts or by civil laws. But that while marriage subsists, all ought to be in common, right reason teaches us. For since associates, by unity of will, are one person (§19), and therefore have all the things and rights belonging to their society in common (§20), it is manifest, that the same must hold with respect to persons united by marriage; and so, however it came to be afterwards, was it anciently among the Romans, according to Dionys. Halicar. Antiq. Rom. l. 2. p. 95. for by Romulus’s law, there was, “Omnium bonorum & sacrorum communio.” And even their later laws appointed, “Communem utrique conjugi bonorum usum.” [[“Common ownership of all goods and sacred things”; “common use of goods for each spouse.” (See Dionysius of Halicarnassus, Roman Antiquities, vol. 1, bk. II, chap. 25, p. 383.) Whence it is evident why Modestinus retaining the old definition of marriage, and agreeably to his own time, says it is, “Conjunctio maris & foeminae, consortium omnis vitae, divinique & humani juris communicationem,” l. 1. D. de ritu nupt. “The union of a man and a woman, life-long cohabitation, sharing in divine and human law.”]]
[† ] Some think this duty belongs to the wife only, and not to the husband, because, if he neglects it, the children are not rendered uncertain. But tho’ all copulation be unlawful which renders progeny uncertain, yet it does not follow, that all is lawful which does not render it uncertain (§38). See Gundlingii dissert. an major a seminis, quam a viris, castitas requiratur. [[Gundling (praeses) and Benz (respondens), Dissertatio iuridica, qua doctrina vulgaris maiorem a feminis, quam a viris, requirens castitatem. We draw an argument from this principal rule of natural justice, “what one would not have done to him, &c.” But surely the husband would not have his wife to love another man more than him, or grant any other the use of her person. And therefore the husband is bound to the same duty. See Chrysostom. Homil. 19. in 1 Cor. vii. Lactantius Inst. divin. 6. 3. John Chrysostom, Homilies on the Epistles of Paul to the Corinthians, “Homily XIX,” 105–11; Lactantius, Divine Institutes, Books I– VII, bk. VI, chap. 23 (not 3), 457–62 Hieron. ad Ocean. & can. 20. Causs. 32. quaest. 5. But at the same time, we grant that the wife’s unchastity is more repugnant to the end of marriage than the husband’s.]]
[* ] For since the parties are bound to all, without which the ends of the society, procreation and convenient education, cannot be accomplished (§27); they are obliged to consent to this prerogative in one of them, without which consent in the same means could not be expected. Now, because this prerogative in a society of equals is due to the more prudent, and in the conjugal society the husband for the most part is such, the wife is, for this reason, obliged to consent to the husband’s prerogative.Inferior matrona suo sit, Prisce, marito:Non aliter fuerint femina virque pares.Martial. Epig. 8. 12.
[[Martial, Epigrams 8.12.3–4, trans. Bailey: “Let the matron be subject to her husband, Priscus: in no other way are a man and a woman equal.”
See Plutarch’s conjugal precepts, p. 139. Plutarch, “Advice to Bride and Groom,” lines 303–9, in Plutarch, Moralia: in Fourteen Volumes, vol. 2.]]
[* ] I say, chastise suitably to the rank and condition of both parties; because, since they are one person (§19), an ignominious chastisement of a wife reflects ignominy on the husband. And because both are bound to take care of their reputation (l. 1. §153), a husband acts contrary to his duty if he chastises his wife in a manner that tends to hurt both her and his character. This imprudent discipline of husbands is severely lashed by Plutarch in his conjugal precepts, p. 139. “As some soft effeminate persons who are not able to mount their horses, teach them to stoop to them, so some husbands, who espouse rich and noble wives, are at no pains to amend themselves, but accustom their wives to submission, that they may more easily rule over them, tho’ regard ought to be had in the use of the curb, as in the one case to the spirit of the horse, so in the other to the dignity of the wife.” [[Plutarch, “Advice to Bride and Groom,” ibid.]]
[* ] Thus what is related by Aristotle, Politic. 5. 11. and by Sophocles in Oedipo Colon. v. 354. of the wife’s power over the husband among the Egyptians, was by pact, as Diodor. Sicul. Bibl. 1. 27. informs us. But all the questions relating to a Queen’s husband are fully handled by Jo. Philip. Palthenius, in a discourse on this subject. [[Johann Philipp Palthen (praeses) and Samuel Palthen (respondens), Dissertatio de marito reginae. We have a noted instance of this in Earl Bothwell, who, when he was to be married to Mary Queen of Scotland, took an oath, “That he should claim no superior degree or pre-eminence on that account; but that he should continue to be subject to the queen as he had hitherto been.” Buchanan. rer. Scot. hist. l. 16. p. 674. George Buchanan (1506–82), Scottish humanist scholar and author of Rerum Scotiarum historia. To all that is urged from scripture, Gen. iii. 16. 1 Cor. xi. 7. 1 Tim. ii. 11. Ephes. v. 23. Coloss. iii. 18. 1. Pet. iii. 1. Palthenius has given a full reply at great length. But these things we leave undetermined, because we proceed upon another foundation.]]
[* ] In several other nations, women had a portion or dowry given them at marriage, that they might not be quite cut off from all share in their parents estate, because they were otherwise excluded from succession. The same was the case among the Romans while the lex voconia obtained. But they used to give dowries to daughters before it took place; and after it was abolished, tho’ married daughters shared the paternal and maternal estate equally with their brothers. All this matter is elegantly treated by Perizonius, in his dissertat. de lege Voconia, reprinted by us at Hal. 1722. [[Jacob Perizonius (1651–1715), professor of eloquence and history at the university of Franeker, Dissertationum trias quarum in prima de constitutione divina super ducenda defuncti fratris uxore secunda de lege voconia feminarumque apud veteres hereditatibus tertia de variis antiquorum nummis agitur, part 2: De lege voconia feminarumque apud veteres hereditatibus. Hence the Roman lawyers acknowledge, that the dowry was given in order to bear a part of the matrimonial expences or burdens, l. 7. pr. l. 56. §1. l. 76. fin D. de jure dot. l. 20. C. eodem.]]
[† ] To these we refer not only adultery and malicious desertion, which are pronounced just causes by the divine law, Mat. v. 32. xix. 9, 1 Cor. vii. 15; but every thing that is an obstacle to the end of marriage, and renders it unattainable: We do not take upon us to determine, whether our Saviour’s phrase, παρεκτὸς λόγου πορνείας, Mat. v. 32. signifies the same with what is called by Moses, Deut. xxiv. 1. some uncleanness, as Selden seems to think; but we are certainly persuaded, that πορνείαν and λόγον πορνείας, do not mean the same: For λόγος signifies the condition, nature or proportion of a thing (Synes. Epist. ad Joannem: τὸν ἀυτὸν λόγον ἔχουσι, they are of the same nature or rank). [[Παρεκτὸς λόγου πορνείας: “except for the condition of adultery.” Now, this being the meaning of the word, the sense is, that no other cause of divorce is allowable, but such a one as is like to adultery, of the same nature with it, i.e. no less repugnant to the end of matrimony than adultery.]]
[* ] [[See preceding note.]]
[† ] To this class belongs what is called mariage de conscience: as also concubinacy, such as obtained among the Romans, concerning which we have said a great deal in our comment. ad legem Juliam & Papiam, l. 2. c. 4. [[Presumably in his Elementa iuris civilis. For concubine is not to be confounded with whore; and differed only in respect of dignity from a legal wife. Whence it is called unequal marriage, l. 3. C. de natur. lib. On the other hand, that does not deserve the name, even of an imperfect marriage, which is called by these barbarous terms ad talacho, emancibado, casato di media carta; and is contracted on this condition, that a man, so soon as he has children by a woman, may turn her away, or that the woman being pregnant, may desert her husband when she pleases; such the marriages of the Amazons are said to have been, tho’ Arrian doubts of the truth of this report, in his expedit. of Alexander, l. 7. p. 291. See Sam. Petit. de Amazonibus, & Casp. Sagitt. Exercit. ad Justin. hist. 2. 4. The author is Pierre (not Samuel) Petit, De Amazonibus dissertatio, qua an vere extiterint, necne, . . . disputatur. The other work is Sagittarius (praeses) and Köpken (respondens), Antiquitates Amazonias exercitatione ad Justini historici lib. 2, cap. IV. And what is this indeed, but as Seneca expresses it, of benefits, 3. 6. exire matrimonii caussa, nubere divortii caussa? “To divorce in order to marry, to marry in order to divorce.” This is a not entirely accurate quotation from Seneca (the Younger), On Benefits 3.16 (not 3.6).2 in vol. 3 of Moral Essays. What can be more repugnant to that convenient education, which we have observed to be the end of matrimony?]]
[* ] [It is not unfit to explain what our Author calls, ex lege morganatica matrimonium ad morgangabicam, or as the writers on fiefs call it, ad morgenaticam, comes from the German morgen-gab, which signifies a morning present. The person who marries a woman in the manner here specified, or as the Germans express it, with the left hand, the day after his wedding makes her a present, which consists in the assignment of a certain portion of his goods to her and her future children, after his death, on which condition they have no farther pretensions. Gregory of Tours calls this matutinale donum, l. 9. 19. as Gronovius on Grotius observes [[Grotius, De jure belli ac pacis, ed. Gronovius, who likewise refers us to Lindenberg’s glossary on the Codex legum antiquarum. See Barbeyrac on Grotius, l. 2. c. 8. 8. 3.] Grotius, Le droit de la guerre et de la paix, trans. and ed. Barbeyrac.]]
[3. ] Hertius, Commentatio iuridica de matrimonio putativo, originally published as a Giessen University dissertation in 1690.
[* ] For tho’ a man and woman may join together, not with a view to have children, but merely to satisfy their lust, yet they are not freed from this obligation, because they proposed another end to themselves. All impure conjunctions without marriage being repugnant to right reason (§34), it is no matter what end parents may really have had in their view; but we are solely to consider what end they ought to have had in view; nor is it in any one’s power to renounce the preceptive law, which appoints this end of copulation (l. 1. §13).
[† ] Hence then the origine of that power belonging to parents by the law of nature. God wills that children exist, i.e. that they be preserved and made happy (l. 1. §77): but they cannot be preserved and live happily without proper education (§51); and they cannot be properly educated unless their actions be directed: Therefore God wills that the actions of children be directed by those who educate children. But the right of directing the actions of children is power over children (§52): And therefore God wills that parents exercise power over their children. We therefore send Hobbes apacking, de cive, 9. 3. who derives paternal power from occupancy. Nor does Pufendorff’s way, (of the law of nature, &c. l. 6. c. 2. §4.) satisfy us, who derives it partly from the nature of social life, and partly from the presumed consent of children. For presumed consent to this society, which we likewise acknowledge can be inferred from no other principle than that we have now laid down.
[* ] Adoption therefore is not contrary to the law of nature, but for another reason than that upon which it is founded in the Roman law. For children being by that law under the power of the father, i.e. in domino juris quiritium, l. 1. D. de rei vind. Hence they inferred, that the father could alienate and sell his children, as well as the other things (mancipi) in his full possession and power. And thus adoptions were made by alienation and cession of right, as we have shewn on another occasion. Besides, men only, and not women, could adopt, except by a special indulgence from the prince to console them for the loss of their children, §10. Inst. l. 5. C. de adopt. because they could not have any person under their power. But we derive adoptions not from any dominion belonging to the father, or to both parents, but from the duty of education, and the power of directing the actions of children, necessary to that end; which duty, since sometimes it may be better performed by strangers, or at least as conveniently as by the parents themselves, there is no reason why they may not resign it to others, willing to undertake it, and thus give them their children in adoption. Nor is there any difference whether a man or a woman, a married or unmarried person adopt, because this adoption does not imitate nature, but only the duties of parents. And we have an example of this kind of adoption, not only among the Egyptians, Exod. ii. 10. but also among the Romans, among whom Lact. de mort. perseq.cap. 50. tells us, that Valeria Augusta, not on account of barrenness, but to console her for the loss of her children, adopted Candidianus.
[* ] Grotius, of the rights of war and peace, 2. 5. 22. and Pufendorff of the law of nature, &c. 6. 2. 7. justly observe, that this power is greater over younger than more adult children. For since the father may do every thing that education, the end of this society, makes requisite (§52); because children of an imperfect understanding can hardly discern by themselves what is right, the very nature of the thing requires, that parents should direct their actions, and have a right to compel them to learn some useful art, as likewise to embrace the religion they themselves approve, and to chastise with the rod, or otherwise, the disobedient. But this a good father will not do to a more grown up child, who, his judgment being more ripe, ought to be induced to do what is right, rather by authority, and the weight of good arguments, than by severity and rigid command; nor ought he to force any thing upon such a child by way of command with respect to his future manner of life, against his will and inclinations. Thus, e.g. parents are right in forcing a boy against his will to attend the school; but it would be wrong to force one come to the years of discretion, to marry, or to follow a profession he does not like, &c. This we observe, in opposition to Zieglerus, who in his notes on Grotius, 2. 5. 2. thinks this distinction ought not to be admitted. [[Ziegler, In Hugonis Grotii De jure belli ac pacis libros, . . . notae.]]
[* ] This is plain, because that power of life and death was proper to the father, and not common to both parents, and extended even to wives and widow-daughters-in-law. We have an example of the latter in Judah, Gen. xxxviii. 24. who, when he found that his Daughter-in-law Tamar had play’d the harlot, ordered her to be brought forth and burnt. Thus kings, because they are in a state of nature, exercise this power over their wives, children, and their whole family; and this power fathers in ancient times exercised, not as fathers, but as sovereigns. Thus Philip of Macedon sat as judge between his sons, Liv. 40. 8. [[Livy, History of Rome 40.8. Thus Claudius Caesar punished Valeria Messalina his adulterous wife, Sueton. in Claud. cap. 26. Suetonius, “The Deified Claudius,” chap. 26 in Suetonius, vol. 2 not to mention more modern examples which have been examined by others. See Barbeyrac on Pufendorff, of the law of nature and nations, 6. 2. 10.]]
[* ] For since children themselves, while their judgment is imperfect, are subject to the direction of their parents; why may not their goods be likewise administred by them? But may this administration be gainful to them? I do not doubt of it. Whatever things children stand in need of, such as clothes, meat, lodging, the expence of education, &c. they have a right to demand them from their parents. They therefore do not stand in need of fruits or profits, whereas the parents often greatly want them for the support and education of their children. With what face then can children demand restitution of fruits or profits from their parents, whom they can never repay, if they would give up themselves and their all to them? Ismene says well in Sophocles, Oedip. Colon. v. 523.Patrem cura: nam parentum caussaEtsi quis laborat, laborum tamen non meminisse debet.
[[Sophocles, Oedipus at Colonus, in Sophocles: Antigone; The Women of Trachis; Philoctetes; Oedipus at Colonus, ll. 507–9 (not 523): “[S]tay here and guard our father; when one takes trouble for a parent, one must not remember that it is trouble!”
[* ] For what so great merit is there in begetting children, if care be not taken about their conservation? And what signifies it to have preserved them, if they are not so educated as to be rendered capable of true happiness? So Seneca of benefits, 3. 31. Ad bene vivendum minima est portio vivere, &c. [[“To live well, the smallest part is to live.” This exact phrase does not appear in Seneca’s On Benefits 3.31, though another phrase with a similar meaning (“Non est bonum vivere, sed bene vivere”) does: “It is not a blessing to live, but to live well” (Seneca, Moral Essays, vol. 3).]]
[† ] To this class belongs chiefly suckling. For that the mother is obliged to this is evident, from the care of nature to furnish her with such plenty of milk, till the child’s stomach is fit to receive and digest more solid food. Those mothers are therefore truly neglectful of their natural duty, who either for their own ease and conveniency, or for the sake of preserving their shape, delegate this care to nurses, often of little worth, if not bad women, as the heathens themselves have acknowledged, and proved by many solid arguments. See Plutarch on education, p. 3. Aul. Gell. noct. Attic. 12. 1. [[Plutarch, “The Education of Children,” pp. 13–15, in Moralia: in Fourteen Volumes, vol. 1; Aulus Gellius, Attic Nights, vol. 2, pp. 353–55. But because necessity exeems one from the obligation of an affirmative law (l. 1. §114), mothers of a delicate constitution, or who have not milk, are not blameable if they give their child to a good nurse. But what care a mother ought to take in this matter, is elegantly described by Myia in a letter to Phyllis, apud Tom. Gale Opuscul. Mythol. Eth. & Physic. p. 750. Thomas Gale, Opuscula mythologica physica et ethica.]]
[* ] What difference is there betwixt murdering children and denying them necessary sustenance? l. 4. D. de agnos. & alend. lib. But those parents withhold necessary sustenance from their children, who abandon or desert them, or disinherit them without a cause: Nay, those laws are reprehensible which give so much indulgence to parents, as to allow them to treat their children as they please, or at least pay more regard to paternal power than to natural equity. For who can choose but blame the laws of the Tarquinians, which suffered the testament of Demaratus to hold good, “who not knowing that his daughter-in-law was pregnant, died without mentioning his grand-child in his testament; and thus the boy being born after his grandfather’s decease, to no share of his estate, was on account of his poverty called Egerius.” Liv. 1. 34. [[Livy, Early History of Rome, 72. And who, on the other hand, does not approve of Augustus, “who, by his decree appointed C. Tettius, an infant disinherited by his father, to inherit his father’s estate by his authority, as father of his country, because the father had acted most iniquously towards his lawful son, in depriving him of his right by his father,” Valer. Max. 7. 7. Valerius Maximus, Memorable Doings and Sayings, vol. 2, 175.]]
[* ] Since one and the same person often sustains several different characters, as Hertius has shewn in a dissertation on the subject [[Hertius (praeses) and Hasslocher (respondens), Dissertatio de uno homine, plures sustinente personas, education ought to be so modelled, that children may not only be fit for the way of life chosen for them, but likewise to act a becoming part in other characters. Hence, because children ought to be qualified not only to be good merchants or artizans, but likewise to be good citizens; the education of children ought to be accommodated to the state and form of the republic to which they belong, as Aristotle has wisely observed, Polit. 5. 9. adding this reason for it, “That the best laws are of little advantage, unless the subjects are early formed and instituted suitably to them (si leges sint populares populariter, sin oligarchicae, oligarchice), for if there be an unsuitable disposition to the frame of government in any one of the subjects, the state will feel it.”]]
[* ] Those are the fatal methods by which we may observe children of the best natural dispositions to be corrupted and ruined. For as none is so careless about his own reputation as to affect to shew his vices; and therefore every one endeavours to hide his crimes under some false semblance of prudence and virtue, so parents, for the most part, are not at so much pains to teach their children to live honestly and virtuously, as to teach them to deceive others by a counterfeit appearance of virtue and probity, i.e.Ut Curios simulent, & bacchanalia vivant.
[[This is a slightly inaccurate quotation from Juvenal, Satires, Satire 2, 1. 3: “[P]eople who imitate the Curii [i.e., representatives of traditional Roman virtue] but live like Bacchanals.”
To this end are all their precepts directed, and this is the lesson their example inculcates. Insomuch that when some children, through the goodness of their natural disposition, are in the way to virtue and real honour, their excellent turn of mind is depraved gradually by the bad example of their parents. For as those who travel in a dark night, are easily misled out of their right road by false lights; so the best dispositions are easily corrupted, if bad examples are continually seducing them; especially, if their parents themselves are by their practice perpetually shewing them the inutility of all the discipline bestowed upon them. How mindful ought parents to be of that important advice of Juvenal, Sat. 14. v. 44.Nil dictu foedum visuque haec limina tangat,Intra quae puer est, procul hinc, procul inde puellaeLenonum, & cantus pernoctantis parasiti.Maxima debetur puero reverentia. Si quidTurpe paras, nec tu pueri contemseris annos:Sed peccaturo obsistat tibi filius infans.
Juvenal, Satires, Satire 14, lines 44–49: “Don’t let any foul language or sight touch the threshold where there’s a father inside. Keep away, keep well away, you pimps’ girls and songs of the parasite who parties through the night! A child deserves the utmost respect. So if you’re planning something disgusting, you shouldn’t disregard his tender years. Rather, your baby soon should be a deterrent when you are on the point of doing something wrong.”
[* ] There is an excellent epistle to this purpose from Theanus to Eubules, apud Thom. Gale Opuscul. ethic. physic. & mytholog. p. 741. “It is not education, but a perversion and corruption of nature, when the mind is inflamed with the love of pleasure, and the body with lust.” Nor are the precepts of Plutarch, in his excellent treatise of education, less grave and serious.
[† ] How propense youth is to imitation, is plain from the many instances of those, who being bred up among the brutes, acquire their gestures, their voice and fierceness to such a degree, that they are hardly distinguishable from them. Instances of this sort are collected by Lambert Schaffnab. ad annum 1344. Hartknoch. de Polon lib. 1. cap. 2. p. 108. Bern. Connor. Evang. med. art. 115. p. 181. & de statu Polon. part. 1. ep. 6. p. 388. [[Hersfeld, Lamperti Monachis Hersfeldensis opera; Hartknoch, De republica Polonica libri duo; Connor, Evangelium medici seu medicina mystica. The work “de statu Polon.” is presumably Hagemeier’s Iuris publici Europaei de statu Regni Poloniae et imperii Moscovitici epistola VIII. In the Leipsick Acts 1707, p. 507. we are told of a deaf and dumb boy, who, by frequenting the church, begun to imitate all the motions and gestures of those he saw there, in such a serious-like manner, that the clergy could no longer doubt of his having some sense of religion: And yet, when he afterwards had learned to speak, it could not be found out in any way, that he had ever had any notion of religion. Acta eruditorum. This was one of the most influential learned journals published in the German territories; it appeared between 1682 and 1731. If such be the force of example and imitation, is it to be wondered at, that boys receive, as it were, a new nature from the society they frequent, and are by drinking Circe’s cup transformed into beasts.]]
[* ] Hence, all the ancients have acknowledged, that next to the love due to God, is that owing to parents. So Gellius Noct. Attic. 4. 13. to prove which, he quotes Cato, Massurius Sabinus & C. Caesar. [[Gellius, Attic Nights 5 (not 4).13, vol. 1. The golden verses of Pythagoras are yet more express to this purpose.Primum immortales Divos pro lege coluntoEt jusjurandum: heroas, clarum genus, inde.Daemones hinc, terris mixti, sua jura ferunto.Inde parentis honos sequitor; tum sanguinis ordo.
“First let the immortal gods be worshipped in accordance with the law, and oaths: then the heroes, that famous race, next let spirits which are mixed with earth bring their laws, then let the honour due to a parent follow; then the order of blood.” The verses are a Latin translation of the first four lines of the golden verses, which are in Greek (see Hierocles, Commentary on the Golden Verses).
In commenting upon which verses in his way, Hierocles observes, that in parents there is the image of God. And Simplicius ad Epictet. Enchirid. c. 37. p. 199. tells us, “That the more ancient Roman laws pay’d such veneration to parents, that they did not hesitate to call them (Deos) Gods: And out of reverence to this divine excellence, they called a father’s brothers (Thios) Divine, to shew the high respect they thought was due by children to parents.” Simplicius, On Epictetus’ Handbook, vol. 2, p. 56. This is a commentary on chap. 30 of Epictetus’ text.]]
[* ] For even bad parents are still parents, i.e. they are, as Simplicius, ibidem p. 198. justly calls them, the authors of our existence next to God: And this perfection alone ought to incite us to dutifulness and reverence to our parents. Epictet. Enchirid. c. 37. says, “But he is a bad father. Have you then no union by nature but with a good father? No sure, the union is with a father, as such. Do therefore your duty to him, and do not consider what he does, but how your own conduct will be agreeable to nature.” [[Epictetus, “The Manual,” chap. 30 of The Discourses as Reported by Arrian, the Manual, and Fragments, vol. 2.]]
[† ] What is said of the commands of magistrates by the apostles St. Peter and St. John (“Whether it is more just to obey God or you, do you yourselves judge, Acts iv. 19.” “Is it better to obey God or men, Acts v. 29.”) may be applied to the precepts of parents. For tho’ their authority be sacred, yet that of God is more such: Nor does the paternal authority extend so far as to free their children from the laws of the supreme magistrate (§23). Hierocles, in his commentary upon the golden verses of Pythagoras reasons thus: “If any order of parents be repugnant to the divine will, what else ought they to do to whom such a collision of laws happens, but to follow the same rule that ought to be observed in other cases, where there is a competition of duties? Two honest goods or pleasures being proposed, which cannot be both enjoyed, the greater ought to be preferred to the lesser. Thus, e.g. it is certainly duty to obey God; but it is also duty to obey our parents. If therefore both obligations concur and draw you the same way, it is a double and unexpected gain, and without controversy the greatest good. But if the divine law draw one way, and the will of parents another, in this disagreement of laws, it is best to follow the better will, and to neglect the will and command of parents in these cases, in which parents themselves do not obey God.”
[* ] [[See preceding note.]]
[* ] This flows from the paternal power, or the dominium juris Quiritium peculiar to the Romans. For time did not put an end to this dominion; nor could any one lose it without some deed of his own. Hence those imaginary sellings made use of in emancipations. For nothing appeared more consistent than that (res mancipi) things in full possession and dominion should be alienated by selling. See A. Corn. van Bynkershoek de jure occid. lib. cap. 1. p. 145. [[The work referred to concerns the right of the ancient Romans to kill and expose their children (Bynkershoek, Curae secundae de jure occidendi et exponendi liberos apud veteres Romanos). But this dominion over children, as res mancipi, being unknown to the law of nature (§54), this rigour we have above described, cannot belong to it.]]
[† ] Wherefore, in this matter, many nations seem to have departed from natural equity, in which married daughters, having got a certain patrimony by way of dowry, were obliged to content themselves with it, and were excluded from any farther share or succession to the paternal inheritance. This law was amongst the Hebrews founded on a very solid reason, because such was the frame of that republic, that every tribe had its lot, which could not pass to any other tribe, Num. xxvii. But the Syrian custom, of which we see an instance, Gen. xxxi. 14. & seq. was not equally commendable. See a curious dissertation by Jacob Perizonius, de lege voconia, p. 119. where there are several learned observations on this subject. [[Perizonius, Dissertationum trias. Much less still can we approve of the Roman law, which excluded emancipated sons from succession to the paternal inheritance, since the Praetor had a power to soften the rigour of it, and since Justinian entirely abrogated it, Novella 1. 118. For emancipation ought only to dissolve parental power, and not parental love, from which we have shewn that succession to intestates ought to be derived (l. 1. §295).]]
[* ] If what is told of the storks be true, that they provide for their aged parents, those brute creatures reproach children who neglect their duty to parents. “The storks (says Aelian. Hist. animal. 3. 23.) take tender care of their aged infirm parents: tho’ they be commanded to do this by no laws, yet they are led to it by the goodness of their nature.” [[Aelian, De natura animalium 3.23 (Aelian, On the characteristics of animals, bk. 3, chap. 23, p. 183). But shall not reason persuade men to what nature excites the very brutes?]]
[* ] How long children are to be held minors, the law of nature cannot determine, so different are the capacities, geniuses and dispositions of children, some becoming very early wise, and others continuing very long fools. But, because legislators in such cases attend to what ordinarily happens (§44), they have done well to fix a certain period to minority. But how various their determinations have been in this matter, is shewn by testimonies collected from the most ancient histories, in a dissertation of Jo. Petrus a Ludewig, de aetate legitima puberum & majorennium. [[Johann Peter von Ludewig (1668–1743), historian, philosopher, and professor of law at Halle. From 1721 he was chancellor of the University of Halle, and the relationship between Heineccius and Ludewig was not free of tension and competition. The work referred to here is his De aetate legitima puberum et maiorvm.]]
[* ] I use the word used by Phaedrus Fab. l. 3. praef. v. 34.Servitus obnoxia,Quia, quae volebat, non audebat dicere,Adfectus proprios in fabellas transtulit.
[[Phaedrus, Fabulae, introduction to bk. 3, lines 34–35: “Slavery was hateful; because he did not dare say what he wanted, he transferred his own feelings into his fables.”
The Greeks distinguished between servants, which were property, whom they called δούλους, and domestic or hired servants, whom they called οίκέτας, according to Athenaeus Deipnos. 6. 19. Athenaeus, The Deipnosophists, vol. 3, sec. 267, p. 203: “But that ‘domestics’ may mean anyone living in the house, even if he be a free person, is generally known.” Both kinds of servitude are very ancient. It is plain from Genesis, xi. 5. xiv. 14. xv. 3. 4. xvi. 1. & seq. that Abraham had many servants, obnoxii, or perfect servants, in the fourth age from the deluge. So that Jacob served Laban as a mercenary servant for many years, is well known from Genes. xxix. 15. xxx. 28. Nay, Noah makes mention of perfect servitude, Gen. ix. 25. And he condemns Chanaan to it for injuries he had done to him. But Jo. Clericus Comment. in Genes. p. 72. has justly observed, that this was rather a prediction of what was to happen a little after. Jean le Clerc, Genesis sive Mosis prophetae liber primus.]]
[† ] This was observed by Aristotle, who says, that some men are φύσει δούλους, servants by nature, Polit. 1. 3. For tho’ Pufendorff of the law of nature, &c. 3. 28. & 6. 3. 2. had reason to refute this philosopher, if his meaning were, that persons by their prudence, had a perfect right of enslaving, without any other cause, those who are stupid, as the Greeks arrogated a right to themselves over the nations they called barbarous; yet there is no absurdity in this saying, if it be understood of a servile disposition, and of a natural condition, as Dan. Heinsius thinks it ought to be, epist. ad Ge. Richterum, apud Jan. Rutgers. var. lect. 4. 3. [[Daniel Heinsius (1580–1655), Dutch scholar and professor of Latin and Greek at Leiden. Heineccius is probably referring to Jan Rutgers’s Variarum lectionum libri sex. In this sense Agesilaus says, in Plutarch, apophtheg. Lacon. p. 190. that the Asiatics were bad freemen, but excellent slaves. Plutarch, “Sayings of Spartans,” p. 333, in Plutarch, Moralia: in Fourteen Volumes, vol. 3. This is a statement by Callicratidas rather than Agesilaus.]]
[* ] Thus the Egyptians gave themselves up to their king as servants, that they might not perish by famine, and held it for a favour that Pharaoh would accept of their service for their living or maintenance. Hence, having accepted of the condition of servitude, they answered Joseph, Gen. xlvii. 25. “Thou hast given us our lives, let us find favour in thy sight, and let us be servants to Pharaoh.” Thus Pausanias tells us, l. 7. c. 5. “That the Thracian women, tho’ freeborn, earned their bread among the Erythraei, by voluntary servitude” [[Pausanias, Description of Greece, vol. 3, “Achaia,” chap. V, p. 197; not now to mention the Frisians, of whom Tacitus, Annal. 4. 72. nor the Gauls, of whom Julius Caesar de bello Gallic. 6. 13.]]
[* ] Therefore, this society arises really from consent, tho’ not voluntary, but extorted by just force (§15). For the conqueror is willing to save the conquered, but upon this condition that they become his servants; the conquered is willing to serve, that he may be saved. For if he would rather perish, what hindered him from rushing upon the conqueror’s arms. Now the concurrence of two wills is consent (l. 1. §381).
[† ] Matrimony is a simple society between persons of different sexes, formed for the sake of procreation and education (§27). Those therefore who enter into this state, ought to have it in their power to consent to this end, and to choose it, and the means necessary to obtaining it. But the principal end, viz. convenient education, is not always in the power of perfect servants, but it depends wholly on the will of their master. Therefore, among some such men and women servants, there is no place for lawful matrimony. We say it cannot take place among some such, as those namely whom fortune has reduced to this condition, that their masters, after the manner of the Romans might, descriptis per familiam ministeriis uti. But when every one has his fixed seat and abode, as among the Germans, (Tacit. de morib. Germ. c. 25.) there marriage among servants may more easily take place, as experience shews us. But tho’ the proper slaves of the Germans have the jus connubii, liberty of marriage, yet this rule has force among them, that the birth follows the bearer, and is of the same condition with the parents, except where alternate sharing is established (l. 1. §252).
[* ] But neither wages nor maintenance are due, if a servant, by his own fault, or by chance, is not able to perform the service he engaged to do (l. 1. §361). And therefore, tho’ the humanity of those masters be very commendable, who maintain a servant while he is sick, yet what humanity enjoins cannot be exacted by perfect right. On the other hand, it is most iniquitous in a master to deny a servant who has done his work, the wages due to him, or to change his wages at his pleasure, contrary to the terms of their contract, as Jacob complained that Laban had done ten times, Gen. xxxi. 7. This conduct of Laban was so displeasing to God, that he took all his wealth from him, and transferred it to Jacob, Gen. ibid. 9.
[* ] For tho’ a servant may happen to be more perfect than his master, yet it cannot be denied that the master is his servant’s superior: And this diversity of perfections and states, does not alter the essence of man; so that a servant is still equally with his master, a man (l. 1. 177). That maxim of the civilians is therefore far from being humane, “That no injury can be done to a servant or slave,” l. 15. §35. D. de injur. And that saying of a mistress in Juvenal is most inhumane. Sat. 6. v. 223.O demens, ita servus homo est? Nil fecerit: estoSic volo, sic jubeo, stet pro ratione voluntas.
[[Juvenal, Satires, Satire 6, lines 223–24, in Juvenal and Persius: “You idiot! Is a slave a person? All right, let’s accept that he hasn’t done anything. But it’s my wish and my command. Let my will be reason enough.”
He is therefore no less excusable who hurts a servant, than he who hurts a free-man.]]
[* ] Hence home-shackles, prisons, houses of correction, and other methods which necessity obliged to, or the cruelty of masters, allowing themselves all corporal power over their slaves, invented. For tho’ here regard ought to be had to humanity and benevolence (§83), yet the coercive power ought not to be taken from masters, especially over servants taken in war, partly because such are upon the catch to find an opportunity of flying and returning to their own country (which is not so very blameable, as Lorarius in Plautus observes, Plaut. Captiv. 2. 1. v. 14.Lo. At fugam fingitis. Sentio, quam rem agitis.Cap. Nos fugiamus? quo fugiamus? Lo. in patriam.Cap. apage! haud nos id deceat,Fugitivos imitari. Lo. Immo, aedepol, si erit occasio, non dehortor.)
[[Plautus, The Captives, lines 208–10, in Plautus, vol. 1: “‘Ah yes, you’re planning to run for it! I see what’s afoot.’ ‘Run—we? Where should we run to?’ ‘Home.’ ‘Get out! The idea of our acting like runaway slaves!’ ‘Lord! why not? I’m not saying you shouldn’t, if you get the chance.’”
partly because they still preserve a hostile disposition, insomuch, that what Seneca says is particularly true of such servants, Ep. 47. So likewise Festus in voce: quot servi. “Totidem quemque domi hostes habere, quot servos.” So many slaves at home, so many enemies at home. Festus, De verborum significatu quae supersunt cum Pauli epitome.]]
[* ] A mercenary servant, besides his maintenance, receives wages (§82), so that he has something wherewithall to sustain himself, if he be disabled by sickness or accident from performing his work; wherefore, since the master is obliged to maintain such a servant only by the contract of hiring (§76), he is not perfectly bound to the alimenting of such a servant, who is not able to serve (§82). But with respect to a perfect servant or slave, the case is different: For he is not maintained for his work, but as being under his master’s dominion, and having no wages, he has nothing belonging to him. Besides, charity and humanity oblige us to assist even strangers and enemies (l. 1. §219); and therefore, with what face can we deny sustenance to a sick slave, who has worn himself out in our service? Hence the Emperor Claudian gave their liberty to slaves, who were exposed in their sickness by their cruel masters, Sueton. in Claud. c. 25. l. 2. D. qui sine manum.
[* ] Thus the old Romans at manumission stipulated to themselves certain handicraft-works, presents or gifts, l. 3. pr. l. 5. l. 7. §3. D. de oper. libert. And our ancestors, when they manumitted their slaves, reserved a right to themselves to exact from them such services as their mercenary servants, or even slaves were wont to perform to them; so that abstracting from the title and condition of the servitude, there was hardly any difference between slaves and libertines among them. And hence Tacitus de moribus Germ. says, “That their freed-men were not in a much more preferable state than their slaves.” [[Tacitus, Germania 25.2, p. 87.]]
[* ] The ancients looked upon giving liberty to slaves as the greatest of benefits. Simo in Terence says, And. l. 1. v. 10.Feci, e servo ut esses libertus mihi,Propterea, quod serviebas liberaliter:Quod habui, summum pretium persolvi tibi.
[[Terence, The Woman of Andros, act 1, lines 37–40, in Terence, vol. 1: “You were my slave, but I gave you your freedom, because you served me with the spirit of a free man. I bestowed upon you the highest reward that was in my power.”
For the Patron, by giving his liberty to a slave made him a person: and therefore, he was to the freed-man in the room of a father, who on that account assumed his patron’s name, as if he were his son, Lactant. divin. Inst. 4. 3. Hence he was no less obliged than a son to provide an aliment for his patron, if he happened to be in want, l. 5. §18. l. 9. D. de agnosc. & alend. lib. And as a son, tho’ the obligation to gratitude be otherwise imperfect, was forced to repay the benefits received from his father, and to maintain him; so the freed-slave was forced to do the same, and could be reduced into slavery again for pregnant ingratitude, Inst. §1. de cap. diminut. l. un. C. de ingrat. lib.]]
[* ] Ulpian’s definition comes to the same purpose, l. 195. §2. D. de verb. signif. “We call a family, with its proper rights, as such, many persons subjected to one head, either by nature or by law, (ut puta patremfamilias, matremfamilias, filiumfamilias, filiamfamilias), and those who succeed into their room, as grandsons and granddaughters, &c. But we take the term in a somewhat larger acceptation. For, whereas he only comprehends husband and wife, parents and children, we comprehend servants as a part of a family; as he himself a little afterwards calls them, §3. ‘servitium quoque solemus vocare familiam,’ we also reckon servants a part of the family.” Besides, among the ancients family signified the servants, “quasi familia,” as Claud. Salmas. exercit. Plin. p. 1263. has shewn. [[Saumaise (Salmasius), Plinianae exercitationes in Caji Julii Solini Polyhistora. And the parents and children were called by them domus, the house, as in Apuleius Apolog. p. 336. “ipse domi tuae rector, ipse familiae dominus.” Apuleius, Rhetorical Works 98.7, p. 116: “In your house he and none but he is the man in charge, the one who issues orders to the staff.” We shall therefore use the word family, to denote what the ancients called domus and familia.]]
[* ] But this is to be understood of what ordinarily or regularly happens. For that it is sometimes otherwise, we have already shown (§46). Who will deny that a queen who marries a stranger is still head of her family, and that in this case, no other part belongs to the husband but what regularly belongs to the wife, viz. to give all manner of assistance to his queen-wife? We have very recent examples of this.
[† ] Thus Aristotle considers it, Polit. 3. 6. where he says, that segregate heads of families, living by themselves, are with their families as states, and defend themselves by the members of their families against all injurious invaders. Nor does Hobbes philosophize about the manner differently. Leviath. c. 20. Tho’ properly indeed such a family be not a state, as Aristotle acknowledges a little after, where he says, “Yet if we accurately consider the matter, it is not properly a city or state”; yet it is very like to one, and when it grows up into a great multitude of persons, it becomes a state or republic, as Plato observes in Politic. t. 2. op. edit. Serrani. [[A reference to Jean Serres’ edition of Plato’s works (see Plato, Platonis opera quae extant omnia).]]
[* ] We have examples of this in the patriarchs Abraham, Isaac, and Jacob, who, as princes, or heads of segregate families, exercised all the rights of sovereignty. Thus Abraham, when he heard his brother Lot was taken captive, armed his trained servants born in his own house, and joined with certain confederates, and made war against the enemy, Gen. xiv. 14. The same Abraham entred into an alliance with Abimelech, Gen. xxi. 22. which was afterwards renewed by Isaac, Gen. xxvi. 26. Jacob in like manner made a covenant with Laban, Gen. xxxi. 44. and his family made war (tho’ an unjust one) against Hamor and his son Shechem, Gen. xxxiv. 25. Jacob likewise gave a law to his houshold about putting away strange gods from among them, Gen. xxxv. 2. Judah, his son, condemned his daughter-in-law to be burnt, Gen. xxxviii. 24, 25. Of these facts Nicolaus Damascenus was not ignorant. Excerpt. Peiresc. p. 490. See likewise Justin. 36. 2.
[* ] Because, in this case, one and the same person sustains several different personages or characters, he is under so many respective obligations, and has so many respective rights correspondent to, and depending upon these different characters and relations of husband, father, and head of the family.
[1 ] Christian Wolff, Vernünftige Gedanken von dem gesellschaftlichen Leben der Menschen und insonderheit dem gemeinen Wesen.
[* ] Socrates says in Xenophon. Oecon. c. 3. §15. “I think a wife who is a good partner in a family, contributes as much to its interest as the husband. For very often wealth is brought by the husband’s industry into a house, and the greater part of it is at the management of the wife, which, if it be good, the family is enriched, if bad, it is ruined.” [[Xenophon, Memorabilia and Oeconomicus, p. 389.]]
[† ] For most servants being of the very dregs of mankind, and therefore very ill educated, it is impossible but children must be corrupted by them. We see how justly they are represented in Plautus and Terence, as often corrupting the children by flattery, and exciting them to or assisting them in very bad practices. Plutarch upon education wisely observes, “If you live with a lame person, you will insensibly learn to halt.” And hence he infers, “That nothing can be more absurd and unreasonable than the very common practice, when one has many good servants, some fit for agriculture, some for navigation, some for merchandize, some for banking, others to be stewards, if he finds one slave that is idle, drunken, and unfit for every other business, to set him over his children.” [[Plutarch, “The Education of Children,” pp. 17–19 in Plutarch, Moralia: in Fourteen Volumes, vol. 1. But it is evidently much the same in effect, whether parents commit the care of their children to worthless persons, or suffer them to be familiar with them.]]
[* ] All this Xenophon hath delightfully explained in his golden treatise of oeconomics, where he introduces Ischomachus discoursing with his wife about the management and oeconomy of a family. And cap. 8. she sums up all thus: That, as in a choir, in an army, or in a ship, so in a domestic society, there is a first, a second, and a last order, and that the perturbation of this order throws all into confusion, and renders the largest stock of furniture useless. In the 8. chapter she adds, “The disturbance of order seems to be like a farmer’s throwing wheat, barley, and legumes, all together in a heap; and then when he wants bread, kitchen-stuff, or any other thing, he must have the trouble of separating them, and to search through the whole confused mass for what he has present need of.” [[Xenophon, Oeconomicus, chap. VIII, pp. 429–33, in Memorabilia and Oeconomicus.]]