The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction
• A Note On the Text
• Acknowledgments
• A Methodical System of Universal Law: Or, the Laws of Nature and Nations, With Supplements and a Discourse
• Book I: Of the Law of Nature
• Preface
• Chapter I: Concerning the Origine and Foundation of the Law of Nature and Nations.
• Remarks On This Chapter
• Chapter II: Concerning the Nature and Distinguishing Qualities Or Characteristics of Human Actions.
• Remarks On This Chapter
• Chapter III: Of the Rule of Human Actions, and the True Principle of the Law of Nature.
• Remarks On This Chapter
• Chapter IV: Of the Application of This Rule to Actions, and the Differences of Actions Proceeding From Thence.
• Remarks On This Chapter
• Chapter V: Of the Duties of Man to God.
• Remarks On This Chapter
• Chapter VI: Of the Duties of Man to Himself.
• Remarks On This Chapter
• Chapter VII: Concerning Our Absolute and Perfect Duties Towards (others In General), and of Not Hurting Or Injuring Others (in Particular).
• Remarks On This Chapter
• Chapter VIII: Concerning Our Imperfect Duties Towards Others.
• Remarks On This Chapter
• Chapter IX: Concerning Our Hypothetical Duties Towards Others, and the Original Acquisition of Dominion Or Property.
• Remarks On This Chapter
• Chapter X: Of Derivative Acquisitions of Dominion Or Property Made During the Life of the First Proprietor.
• Chapter XI: Of Derivative Acquisitions By Succession to Last-will and to Intestates.
• Chapter XII: Concerning the Rights and Duties Which Arise From Property Or Dominion.
• Remarks On This Chapter
• Chapter XIII: Concerning Things Belonging to Commerce.
• Remarks On This Chapter
• Chapter XIV: Concerning Pacts.
• Chapter XV: By What Means Obligations Arising From Pacts and Contracts Are Dissolved.
• Remarks On This Book
• Book II: Of the Law of Nations
• Chapter I: Concerning the Natural and Social State of Man.
• Remarks On This Chapter
• Chapter II: Of the Duties Belonging to the Matrimonial State, Or Society.
• Chapter III: Of the Duties That Ought to Be Observed In a Society of Parents and Children.
• Chapter IV: Concerning the Duties Belonging to Masters and Servants, and That Despotical Society.
• Chapter V: Of the Complex Society Called a Family, and the Duties to Be Observed In It.
• Remarks On This Chapter
• Chapter VI: Of the Origine of Civil Society, Its Constitution and Qualities, Or Properties.
• Remarks On This Chapter
• Chapter VII: Of Sovereignty, and the Ways of Acquiring It.
• Remarks On This Chapter
• Chapter VIII: Concerning the Immanent Rights of Majesty, and the Just Exercise of Them.
• Chapter IX: Concerning the Transeunt Rights of Sovereignty.
• Chapter X: Of the Duties of Subjects.
• A Supplement Concerning the Duties of Subjects and Magistrates.
• A Discourse Upon the Nature and Origine of Moral and Civil Laws, &c.
• Section I
• Section Ii
• Section Iii
• Section Iv
• Section V
• Section Vi
• Section Vii
• Section Viii
• Section Ix
• Section X
• Section Xi
• Section Xii
• Section Xiii
• Section Xiv
• Section Xv
• Bibliography
• Primary Sources
• Secondary Literature

CHAPTER II

Of the duties belonging to the matrimonial state, or society.

SECTION XXV

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).*

SECTION XXVI

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.

SECTION XXVII

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).

SECTION XXVIII

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.

SECTION XXIX

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.

SECTION XXX

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.*

SECTION XXXI

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.*

SECTION XXXII

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.†

SECTION XXXIII

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.

SECTION XXXIV

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.*

SECTION XXXV

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.†

SECTION XXXVI

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.*

SECTION XXXVII

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.

SECTION XXXVIII

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.*

SECTION XXXIX

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.

SECTION XL

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.*

SECTION XLI

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.*

SECTION XLII

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.

SECTION XLIII

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.

SECTION XLIV

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.

SECTION XLV

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).

SECTION XLVI

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.

SECTION XLVII

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.*

SECTION XLVIII

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.*

SECTION XLIX

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

[* ] 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.

And a little after he adds,

[* ] 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.

[* ] 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.

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.

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.

[* ] 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.

Such marriages were looked upon by the Pagans as contrary to nature. See Ovid, Metam. 10. v. 9. where Myrra thus speaks:

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.

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.