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| Domestic Law. - Adam Smith, Glasgow Edition of the Works and Correspondence Vol. 5 Lectures On Jurisprudence [1762]

Edition used:

Lectures On Jurisprudence, ed. R.. L. Meek, D. D. Raphael and P. G. Stein, vol. V of the Glasgow Edition of the Works and Correspondence of Adam Smith (Indianapolis: Liberty Fund, 1982).

Part of: The Glasgow Edition of the Works and Correspondence of Adam Smith, 7 vols.

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


| Domestic Law.

We come now to consider man as a member of a family, and in doing this we must consider the threefold relation which subsists in a family. These, to witt, between Husband and Wife, Parent and Child, Master and Servant. 1st of these we shall consider husband and wife.

In every species of animals the connection between the sexes is just as much as is necessary for the propagation and support of the species. Quadrupeds whenever the female impregnates have no farther desire for each other. The support of the young is no burthen to the female, and there is no occasion for the assistance of the male. Among birds some such thing as marriage seems to take place. They continue the objects of desire to each other, their connection remains for a considerable time, and they jointly support the young. But whenever the young can shift for themselves all further inclination ceases.

In the human species | woemen by their milk are not capable of providing long for their children. The assistance of the husband is therefore necessary for their sustenance, and this ought to make marriage perpetual. In countries however where Christianity is not established, the husband possesses an unlimited power of divorce, and is not accountable for his conduct. In ancient Rome, tho’ they had the power of doing it, yet it was thought contrary to good manners.43

We may observe an utility in this constitution of our nature, that children have so long a dependance upon their parents, to bring down their passions to theirs, and thus be trained up at length to become usefull members of society. Every child gets this piece of education, even under the most worthless parent.

On this subject it is proposed to consider the duties of each of the two parties during their union, how this union should bel begun and ended, and what are the particular rights and priviledges of each.

The first duty is fidelity of the wife to the husband; breach of chastity is the greatest of offences. Spurious children may be introduced into the family and come to the succession instead of lawfull ones. | This real utility however is not the proper foundation of the crime. The indignation of the public against the wife arises from their sympathy with the jealousy of the husband, and accordingly they are disposed to resent and punish it. The sentiment of jealousy is not chiefly founded, or rather not at all, upon the idea of a spurious offspring. It is not from the particular act that the jealousy arises, but he considers her infedility as an entire alienation of that preference to all other persons which she owes him. This is the real idea he has of it, as may appear from the following consideration. The idea we have of a father does not arise from the voluptuous act which gave occasion to our existence, for this idea is partly loathsome, partly ridiculous. The real idea that a son has of a father is the director of his infancey, the supporter of his helplessness, his guardian, pattern, and protector; these are the proper filial sentiments. The fathers idea of a son is of one that depends upon him, and was bred up in his house, or at his expence, by which connection there should grow up an affection towards him. But a spurious offspring is dissagreable from the resentment that arises against the mother’s infidelity.

| In these countries where the manners of the people are rude and uncultivated there is no such thing as jealousy. Every child that is born is considered as their own. The foundation of jealousy is that delicacey which attends the sentiment of love, and it is more or less in different countries in proportion to the rudeness of their manners. In general, wherever there is little regard paid to the sex infidelity is little regarded, and there will be the greatest looseness of manners. Agreable to this we find that Menelaus expressed his resentment against Paris, not against Helen, and this not for debauching her but for carrying her away. In the Odyssey44 she talks before her husband of that action without reserve. In Sparta it was common for them to borrow and lend their wives. When manners became more refined, jealousy began and rose at length to such a height that wives were shut up, as they are among the Turks at this day. As mankind became more refined, the same fondness which made them shut up woemen made them allow them liberties. In the latter ages of Greece woemen were allowed to go any where. This same fondness carried to a high degree gives as great a licence as when infidelity was disregarded. In no barbarous country is there more licentiousness than in France. Thus we may observe the prejudice of manners, with respect to woemen, in the different periods of society. | Tho’ there was little or no regard paid to woemen in the first state of society as objects of pleasure, yet there never was more regard paid them as rational creatures. In North America, the woemen are consulted concerning the carrying on of war, and in every important undertaking.45 The respect paid to woemen in modern times is very small. They are only put to no trouble for spoiling of their beauty. A man will not exempt his friend from a laborious piece of business, but he will spare his mistress. When the infedility of the wife is considered as an injury to the husband, it is necessary that unmarried woemen should be laid under restraints, that when married they may be accustomed to them. Hence the origin of punishment for fornication.

We come now to consider how this union is begun. As the duty after marriage is quite different from what it was before, it is necessary that there should be some ceremony at the commencement of it. This differs in different countries, but in general is connected with religion, as it is supposed to make the greatest impression. In the infancey of society, though marriage seemed intended to be perpetual, yet the husband had an unlimited power of divorce, tho’ it was reckoned indecent to exercise it, unless for an enormous crime. | The reason was that the government durst intermeddle little with private affairs, and far less with matters in private families. For the security of government they endeavoured by all means to strengthen the power of the husband and make him as absolute as possible. In ancient Rome, the husband was sovereign lord of life and death in all matters belonging to his own family.

In Rome three kinds of marriages took place.46 1st, by Conferriation,47 a religious ceremony.

2dly, by Exemption,m when the husband bought his wife.

3dly, by Use. If he had lived with her a year and day, she was his by prescription, and he could divorce her.

The power of divorce extended to the wife after female succession took place; a woman possessed of a great fortune, who lived happily before marriage and had so much in her own power, would not encline to give it all to her husband. | The lawyers therefore invented a new kind of marriage in favour of heiresses, which was called the deductio domi48 or marriage by contract. Certain terms were agreed on between the parties, and then the husband came and carried her home. To prevent prescription taking place, she went away three or four days every year, which according to the form of the contract secured her fortune. Thus the wife became equally independent with the husband, and had equally the power of divorce. As the marriage was founded upon the consent of both parties, it was reasonable that the dissent of either party should dissolve it.

This form of marriage is pretty similar to the present, with this material difference, however, that it did not legitimate the children, nor preserve the honour of the woemen.49 The Roman form caused great disorders. When the parties seperated, which was often the case, they married others, and very often the woemen went thro’ five or six husbands. This so corrupted their morals that about the end of the monarchy there was scarce a great man that was not cuckolded. | The disorder came to such a height that after the establishment of Christianity, the power of divorce was restrained unless for certain causes. Among the Scythian nations which settled in the west of Europe, divorce was taken away altogether. In Burgundy, however, the power of the husband was very great. By a law there, if a man abused his wife he was liable to a fine, but if the wife misbehaved she was put to death.

As in general only flagrant crimes were taken notice of by the civil court, small ones went into the hands of the ecclesiastics, and that first gave occasion to their great power. When the civil court gave no redress for breach of contract, the ecclesiastics punished the offender for perjury, and when any difference happened betwixt man and wife they made them suffer penance for it. Afterwards the power of divorce was taken away unless for adultery, and when the one was afraid of bodily harm from the other. Even this last was not a perfect divorce, for neither of the parties was allowed to marry again, but only a seperation a mensa et toro. | The causes of a perfect divorce, after which they were allowed to marry again, were these three. 1st, if they were within the degrees of consanguinity,50 the marriage was made null, unless they had a dispensation from the Pope; 2d, precontract with any other woman; 3d, frigidity in a man, and incapacity in a woman.

The ecclesiastics brought in other alterations besides these with regard to marriage. It is to be observed that the laws made by men are not altogether favourable to woemen. They considered the infidelity in the husband and wife were equally punished. He had no more power to divorce than she. Adultery, saevitia, and metus were considered as causes of seperation but not of divorce.51

The cannon law when it took place was dictated by ecclesiastics, who on most occasions copied the Roman law, as they were the only persons that understood Latin, and among whom the remains of literature were preserved. At first even the ecclesiastic law required no ceremonies at marriage. As the ceremonies of conferriation52 and exemption53 had gone into desuetude in the latter times of the Roman law, when the only thing that | was required was the deductio domi, so by the ecclesiastic law for a long time a contract of any kind made a marriage, whether a contract in praesenti or in futuro. Contract in praesenti is when I say, I take you for a wife, or, I take you for a husband. Contract in futuro is when they say, I will do it. Either of these contracts might be proved either by evidence or by oath, if they declared themselves married persons, or that they were to be so. Pope Innocent IIId enacted that all marriages should be performed in facie ecclesiae, but tho’ this was considered as the only decent marriage, yet others were often in use and in some cases were valid. If a person was married in futuro, and afterwards in facie ecclesiae, and the first wife made no opposition till after the banns were out, the first marriage was null. If it was contractu presenti54 the second was null. This was the case in England till the late Marriage Act.

If a contract in futuro can be proved, or if the man refuse his oath, the marriage is in some countries considered as valid. The contract in presenti is every where valid especially if they cohabit afterwards. | All these institutions are derived from the canon law, which made the breach of them liable to church censures as ours does.

An Act of Parliament only makes a divorce in England, the infidelity of the wife will not do it. In Scotland it is much more easily done.

Protestants never carried matters so far as the canon law, for the clergy married themselves. Besides, love which was formerly a ridiculous passion became more grave and respectable. As a proof of this it is worth our observation that no ancient tragedy turned on love, whereas now it is more respectable and influences all the public entertainments. This can be accounted for only by the changes of mankind.

The species of marriage of which we have been treating took place only in Rome and in the Christian countries, with a few others, for in many countries they took as many wives as they were able to maintain. This naturaly leads us to consider the origin of polygamy.

It is to <be> observed that tho’ voluntary divorce be attended with inconveniences, yet it is not altogether contrary to the principle of justice that a man should | put away his wife and take another for less reasons than adultery, because they make them quite unhappy together, tho’ either of them might live very well elswhere. The same is the case with polygamy. If a woman consents to be one of five or twenty or more wives, and the laws allows it, there is no injury done her, she meets with the treatment which she might naturaly expect. The ancient Jewish and Oriental laws tolerated polygamy, but tho’ it and voluntary divorce be not altogether contrary to justice, it must always be a very bad policy where they are established or allowed.

Polygamy excites the most violent jealousy, by which domestic peace is destroyed. The wives are all rivals and enemies. Besides, the children are ill taken care of, and the wife complains that her children are not used as they ought, because she measures the affection of the father by her own, between which there is no proportion, as he55 is divided among 40 or 50 children and hers only among 4 or 5. Where polygamy takes place, there must both be a jealousy of love and a jealousy of interest, and consequently a want of tranquillity. It may be said that in the seraglios of the eastern monarchs there is the greatest peace, but this is owing to the most imperious discipline. | When rebells are subdued their humility is remarkable. In Africa we find the most horrid disorders, their discipline not being severe enough. It is the greatest misery to the woemen that they are entirely shut up and can enjoy no company but that of the eunuchs, which they detest. The man too who has the seraglio is by no means happy, tho’ apparently so. He too must be jealous, and on account of the inequality betwixt him and them he can have no entertainment at his own house, no opportunity of social improvements. You must never mention his wife to a Turk, she can never be seen by men, not even by her physician, as Tournefort tells us. This gravity and reserve of the husband must have a bad effect upon the manners of the country; as the men have no trust nor dependance upon each other, they cannot form into parties, and therefore the government must always be arbitrary, of which they have a model in their own houses, where there is little parental and less conjugal affection. Besides all this, it tends to depopulate the species; the greater part of men can get no wives, and many of them are castrated to take care of the seraglio. It is indeed alledged that there are more woemen born than men. Montesquieu says that at Bantam in the East Indies there are 10 woemen born for 1 man. | Dutch authors say that on the coast of Guinea there are 50 to one. The account from Japan is better attested, where it is said there are 11 woemen to 9 men. Where this is the case, if the fact be true, it would be an inconvenience if polygamy did not take place.

By strict examination, we find that in Europe there is little difference. The general computation is that there are 13 men to 12 woemen, or 17 to 16, which as men are more exposed to dangers than woemen makes the number about equal. Now if there be no difference in Europe, we have reason to conclude that there is not any difference in any other place. The laws of nature are the same every where, the laws of gravity and attraction the same, and why not the laws of generation. In some of the forementioned places there may indeed be more woemen than men. In places where the seat of religion is and where the court sits, and consequently the opulent live, there must be more woemen, because the rich only have seraglio’s and they purchase the woemen from other places, so that there is a constant import of woemen from these countries in which polygamy does not take place. Polygamy takes place under despotic governments. When a country is conquered by savages they indulge themselves in all manner of brutality, and this among the rest | as there is no established law to the contrary. It never took place in ancient Carthage or Rome, tho’ it takes place in Turky. In every country freedom puts out polygamy. There is nothing that free men will less submitt to than a monopoly of this kind. But despotism is always favourable to polygamy. Montesquieu observes still further in favour of polygamy, that in some countries woemen are marriageable at 8 or 9, and are old and withered at 30.56 When they have their beauty they cannot have much understanding, and when it encreases their beauty is gone, and consequently they cannot long be agreable companions, and therefore a husband had need of more than one. It may be their custom, indeed, to deflower infants, but the fact is not well attested. Cleopatra was 36 when taken by Augustus, yet she was with child; Constantia bore a child at 54. But tho’ [But tho’] the fact57 were true, it is not reasonable that polygamy should take place, but only voluntary divorce. If woemen were only usefull 10 or 12 years it might be reasonable to take another, but not a number at the same time.

Wherever polygamy takes place there can be no hereditary nobility. It is difficult to make the right of primogeniture take place where | there are so many wives, several of whom bring forth nearly at the same time. Where there are so many children they cannot all have the affection of the parent, and it is only by this means that any of them can establish themselves. Where the children are numerous affection diminishes. I may regard 4 or 5 children who are connected with my friend, but if there are 100 in the same relation they are little regarded.58 Now hereditary nobility is the great security of the people’s liberty. Being in every corner of the country, whenever the subjects are oppressed they fly to him as their head. In eastern countries there is no such thing. Every man is almost an upstart, and the royal family alone is regarded. The families of the bashaws after their death mix with the vulgar.

Wherever there is a hereditary nobility the country cannot easily be conquered, or rather not at all. They may be beat once or twice, but they still recover under their natural heads. Eastern countries, for this very reason that they want these, make feeble resistance against forreign invaders.

| Polygamy is exceedingly hurtfull to the populousness of a nation. An hundered woemen married to an hundered men will have more children than the same number married to two or three. It may indeed be said that in China, about the mouth of the Ganges, and in Egypt they are populous notwithstanding polygamy. In these countries there are regulations regarding populousness, and some other circumstances contribute to it such as the remarkable fertility of the soil.

Thus we see marriage is of two kinds, vizt polygamy or monogamy, of which the latter is of three kinds: 1st, when the husband can divorce the wife at pleasure, 2dly, when the power of divorce is equally in their power, and 3dly, when it is in the power of the civil magistrate entirely.

Where polygamy is allowed, the wife is entirely in the power of the husband; he may divorce her, or dispose of her as he pleases.

The laws concerning monogamy differ according to the species of it. That kind where the contract or agreement is indissoluble but by the civil magistrate is the most convenient. By this indeed nothing but what is very dissagreable to society is the occasion of divorce. | But it is always better that the marriage tye should be too strait, than that it should be too loose. The unlimited power of divorce in the latter ages of the Republic59 was productive of the most disorderly consequences, the prevention of which sufficiently attones for any hardships it may occasion. When both parties have the power of divorce they can have no mutual trust nor dependance upon each other, but their interests are quite seperate.

We come now to consider what interest the husband has in the property of the wife, or the wife in that of the husband, according to the different species of marriage.

Where polygamy takes place the wife, being in absolute slavery, has no interest at all in the husbands property and is only entitled to an aliment after his death. When the husband only has the power of divorce the property of the wife becomes his, as much as his own. When they have the power of divorce in the hands of both, whatever portion the wife brings is secured, and the husband can have no more ado with it but to manage it. | When he dies the wife has no more share of the husband’s property than was agreed upon by the contract. In the species of monogamy when divorce is in the hand of the magistrate, the right of the husband extends not so far as formerly, but that of the wife extends further, as she is more independent of him than in any other species. If a wife has a land estate, the husband receives the rents which are at his absolute disposal. If the wife die and leave a son, the husband is the natural guardian of it, and is entitled to a courtesie of the life rent of his wife’s estate.

In England the husband can dispose of all chattels real in his lifetime, but if he do not dispose of them in his lifetime they go to the wife, not to the heir, at his death.

All chattels personal he can dispose of as he pleases. Debts on bonds are the same with chattels real; if the husband demands payment of the debt he can dispose of the money as he pleases, but if he do not claim it in his lifetime it goes to his wife after his death. If the wife die first all chattels real and debts on bond go to her relations, if the husband have not already disposed of them. If the husband die first the wife has a third part of his land estate,60 | whether there be children or not. This is considered as her dowry.61 In England she has a compleat third of all,62 but in Scotland she has only a third of all bills, money, moveables, and bygone rents. Bonds bearing interest go to the children.

In Scotland the husband can sell his wife’s land with her own consent, but she must first be examined before a court and declare that it was with her own consent, and then her executorsn cannot claim it. Both in Scotland and in England, no bond granted by the wife is binding upon the husband unless it be granted for the necessaries of life. In this respect she is considered as a servant, for if a servant buys provision in his name he is obliged to pay them. In Scotland the husband may have a writ of inhibition to prevent the wife from contracting debts in his name. In England any verbal notice that he will not be accountable for them is sufficient. If they be seperated, he is not even obliged to pay what she purchases for her aliment.

We come now to consider what persons are capable of contracting marriage. | Betwixt ascendants and descendants marriage is prohibited in infinitum. Nothing can be more shocking to nature than for a mother to marry her son. By this the mother becomes inferiour to her son, and on account of the inequality of their ages the ends of marriage are seldom accomplished. Therefore it is never tolerated unless where superstition takes place. In like manner a marriage between a father and a daughter is incestuous. It is however to be observed that this is not so contrary to nature as the former, because the father still is superiour when he is husband, and accordingly we find that many barbarous nations tolerated this. But still it is unatural that the father, the guardian and instructor of the daughter, should turn her lover and marry her. Besides, a mother can never look agreably on a daughter who will probably supply her place. Nothing can be more destructive of domestic happiness.

For the same reasons, the uncle and niece or the aunt and nephew never marry. At Rome and Carthage, indeed, they used sometimes to give a dispensation to the uncle and niece, but never to the aunt and nephew.

The marriage of collaterals, such as brother and sister, | seems to have been prohibited chiefly from political views, because they are bred up together, and would be in danger of mutual corruption unless properly restrained. The same reason lay against a marriage between cousins in these ages when they were brought up in the same house.

At Athens a man might marry his sister consanguinea but not his sister uteral.o Many eminent men married in this manner, thus Cimon married his father’s daughter Elpinice.63

By the law of England, the wife of the deceased grand–uncle can marry her husbands grand nephew, it being above four degrees.

Affinity by the Christian law is considered as the same with consanguinity. The wife’s sister is considered as the husband’s sister and the wife’s aunt as the husband’s aunt. It is to be observed that the rules of affinity are rather rules of police than of nature, for it is not contrary to nature that a man should marry his wife’s sister. In many countries of the East Indies this kind of marriage takes place, because they think that the wife’s sister will probably make the best mother in law to her sisters children. But it may be answered to this, that it entirely hinders all intercourse between the sister and her brother in laws family, and that it might be expected that she would answer this purpose by living in his house unmarried with no children of her own. | The cannon and civil law reckoned affinity64 differently. The civil law counted brothers and sisters as one degree removed from the common stock, and cousins german two. The canon law counted how far the persons were asunder. Brothers were two degrees, the father being one and either of the brothers another. In the same manner cousins german were four degrees. The canon counted both sides from the stock and the civil law only one. When the one says the second degree was prohibited from marriage, and the other the fourth, they both mean cousins german. The Pope often dispensed with these laws, and by that means extended his authority and promoted his interest.

Having now considered all the different species of marriage, we come to consider the effects of the want of it. The effect of marriage is to legitimate the children. We must therefore consider the difference of legitimate and illegitimate. Legitimation gives the children inheritable blood, so that they can succeed to their father and his relations. An illegitimate child has no inheritable blood, and therefore cannot succeed to his father intestato, because it is unknown who is his father, nor to his mother, because no child succeeds that is not lawfully begotten. As a bastard can succeed to no body, so no body can succeed to him, as he is not related to any human creature. | If he die intestate without children, his wife has one half of his moveables and one third of his land estate, and the rest goes to the king, but if he has children, the wife has a third of all. The king is still considered as ultimus haeres.

In Scotland there is a further inconvenience attending it. As the king is the heir of bastards, a bastard is incapable of making a testament. Because it would cut the king out of his right. The king can, however, grant him letters of legitimation which make him capable of testating, because as the right of succession belongs to the king he may dispose of it as he pleases. However, this or any thing less than an Act of Parliament cannot give him inheritable blood, but an Act of the whole legislature can do any thing.

The canon and civil law restore to blood a person born out of wedlock in the following ways:

1st, per subsequens matrimonium, or marrying the woman that had the children. As concubines were numerous, it was enacted that whoever married his concubine legitimated her children. This Justinian afterwards made perpetual.

2dly, per oblationem curiae. When the children were willing to execute certain parish offices, as deacons,65 etc, tho’ this entitled them only to succeed to the father and not to his relations.

| 3dly, per adrogationem. As for example one Roman could adopt the son of another, and the son accept of him as a father. They had it in their power to adrogate any freeman; bastards were considered as freemen and if they were willing to accept might be adrogated as such.

4thly, per <re>scriptum principis, which was much the same with letters of legitimation.

5thly, per testamentum, by which they probably succeeded only to their fathers estate.

The canon law introduced the subsequens matrimonium into all countries but England. The English clergy were then unpopular by joining with the king against the barons, and therefore in England the subsequens matrimonium never could legitimate.

That subsequens matrimonium might legitimate, the canon law made some restrictions which did not take place at Rome. Bastards of adulterous persons could not succeed, those, to wit, of a woman who has a husband alive, or of a concubine to a man whose wife is alive, tho’ they should marry afterwards. Incestuous children also could not succeed, unless legitimated by a dispensation from the Pope. Thus we have seen the dissabilities and incapacities of illegitimate children, which can only have an effect where monogamy prevails, and indeed these alone | hinder polygamy from gaining ground in any country, because if bastards were allowed to succeed men would hardly subject themselves to the inconveniences of lawfull marriage. To have a wife entirely in their power and to take others when they please would be more convenient.

Three lines left blank in MS.

We come now to consider the history of parentage, being the second relation in which we were to consider man as a member of a family.

The authority of the father over his children, both with respect to liberty and property, was at first absolute. He was at liberty to choose whether he would bring up his children or not. And it was accounted no injustice to refuse to do it. The law hinders the doing injuries to others, but there can be no fixed laws for acts of benevolence.66 All that the law prohibited was immediately putting them to death, but he might expose them if he pleased. Even with us a father is not obliged to ransom a son who is taken captive, but may do it or not as he pleases. In the same manner anciently a father might choose whether he would ransom his son | from starving, from wild beasts, and the like. Tho’ some regulations were made in Rome concerning this, they were never well kept, and the practice was not abolished till the establishment of Christianity. In China, at present, where polygamy takes place, they are often obliged to expose them and generally drown them. As the father had it entirely in his power to bring up his son or not, he had an absolute jurisdiction over him if he did bring him up. At Rome the father had the ius vitae et necis, et vendendi. Besides, whatever the son acquired belonged to the father, and if he married his children were considered as members of the grand father’s family. This power of the father over his son was very soon lessened. The son was connected with the mother’s relations, and the uncle, whom on some occasions he was to succeed, would naturaly look after the person who was to be his heir. By a law of Numa–Pompilius, if a son was married it was no longer in the father’s power to sell him. The Twelve Tables indeed mention this priviledge of the father, but it is probable it was only those who married without their father’s consent. In like manner the ius vitae et necis went out. | The father only put in execution the laws of his country for capital crimes. He could take the power out of the hands of the magistrate and condemn his son to punishment himself, but he could not free his son if he was accused by the laws of his country. This shews that the patria potestas was not altogether absolute. This power of the father weaken’d by degrees, and at last went out altogether. The father only pronounced the sentence as it was dictated to him by the civil magistrate, as he himself might have gone wrong in some forms, and by that means rendered the whole null. It is much the same with the gentlemen in this country, who have it in their power to seize the goods of their tenants when in debt, without any form of law. As they are ignorant how it ought to be done, they are obliged as well as others to apply for authority to the civil court, tho’ they are vested with the power of doing it themselves.

The power of the father with respect to the property of the son soon went out likewise. We find that very early, by a law of Marcianus, the fathers were obliged to provide proper wives for their sons, and to bestow proper portions upon <them>, and if they refused the government was to see it done. | This shews that the property after marriage must have been their own. The law seems and has67 been made because the wife brought a fortune along with her, and therefore it was but reasonable that the husband should also have some property independent of his father. It must therefore only have been the property of unmarried children over which the parent had any power, and this is not unreasonable. The authority of the father was not arbitrary at Rome, for we often find men accused there for not taking proper care of their children, which could hardly have been the case if they could have put them to death.

Julius Caesar, and after him Augustus, were the first that gave to sons property independent of their fathers. At first they kept as their own whatever they took in war, or the peculium castrense, afterwards whatever they acquired by the liberal and mechanic arts. This was extended by Adrian, and afterwards by Justinian, to every thing, unless what they got from their fathers. All donations and legacies were entirely at their own disposal.

We also find the power of the father in dissinheriting them limited. There were only certain cases in which it was in his power.

| After the fall of the Roman Empire, the power of the father over the son, as well as over the wife, was softened. The father came to have over the son, while he continued in the family with him, an authority much the same with that a father has among us, that, to witt, of taking care of his morals. But when out of the family he was not so immediately concerned about him. The father has this particular priviledge with respect to his son, that he can become tutor to him without surety, and is not accountable, as every other tutor is, for negligence and omission. This is the natural authority the father has over the son. The father is obliged to bring up his children, and the children in case of old age or infirmity to maintain the father.

We now come to consider the history of law with regard to masters and servants, which was the third relation in which we proposed to consider <?man as a member of a> family.

We have found that the same principle which gave the husband authority over the wife also gave the father authority over the son. As the power of the husband was softened by means of his wife’s friends | with whom she was connected and to whom she could complain, so that of the father was softened by the same means. But it was not so with the servants; they had no body to whom they could complain, they had no connection with any person, and having none to take their part they necessarily fell into a state of slavery. Accordingly we find that the master had the power of life and death over them, quite different from the ius vitae et necis over the wife and children, which was restricted to criminal cases; the power over the servants was perfectly arbitrary. Besides, as the master had the disposal of his liberty, a slave could have no property. Whatever he has or can acquire belongs to his master. No contract of the slave could bind the master, however, unless the laws found a tacit consent of the master implied. A slave can only acquire for his master. If I promised a slave 10£ I am obliged to pay it to the master. But besides these dissadvantages there are many others to which the ancient Greek and Roman slaves, as well as our Negroes, were liable, tho’ less attended to.

| 1st. They were hindered from marriage. They may cohabit with a woman but cannot marry, because the union between two slaves subsists no longer than the master pleases. If the female slave does not breed he may give her to another or sell her. Among our slaves in the West Indies there is no such thing as a lasting union. The female slaves are all prostitutes, and suffer no degradation by it.

2d. But slavery is attended with still greater evils than these, for a slave who is a polytheist is properly under the protection of no religion. He has no god any more than liberty and property. The polytheistic religion consists of a great number of local deities. Every place has it’s own divinity. The slaves belong not to the country, and therefore it’s gods are no way concerned about them. Besides, a heathen can never approach a deity empty handed. The slaves had nothing to offer and therefore could expect no favour from them. These slaves who were employed about the temples were the only ones who could have any tittle to the protection of the gods. The master prayed for them | but it was in the same manner that he prayed for his cattle. Every person is superstitious in proportion to the precariousness of his life, liberty, or property, and to their ignorance. Gamesters and savages are remarkably so. It is then a very great hardship that a slave, who is addicted to superstition from both these causes, should be deprived of that which is so well fitted to sooth the natural feelings of the human breast. The religion, therefore, which discovered one God who governed all things would naturaly be very acceptable to slaves. Accordingly we find that the Jewish religion, which, tho’ well fitted for defending itself, is of all others the worst adapted to the making of converts, because they could never be of the stock of Abraham from whom the Messiah was to come, could not be on a level with the Jews but only proselytes of the gate, and were obliged to abstain from many kinds of food, with all these dissadvantages made great progress among the Roman slaves. When Christianity was introduced, which was attended with none of these dissadvantages, it made the most rapid progress among the slaves.

| We are apt to imagine that slavery is quite extirpated because we know nothing of it in this part of the world, but even at present it is almost universal. A small part of the west of Europe is the only portion of the globe that is free from it, and is nothing in comparison with the vast continents where it still prevails. We shall endeavour to shew how it was abolished in this quarter and for what reasons it has continued in other parts and probably will continue.

It is to be observed that slavery takes place in all societies at their begining, and proceeds from that tyranic disposition which may almost be said to be natural to mankind. Whatever form of government was established, it was a part of its constitution that slavery should be continued. In a free government the members would never make a law so hurtfull to their interest, as they might think the abolishing of slavery would be. In <a> monarchy there is a better chance for it’s being abolished, because one single person is lawgiver | and the law will not extend to him nor diminish his power, tho’ it may diminish that of his vassals. In a despotic government slaves may be better treated than in a free government, where every law is made by their masters, who will never pass any thing prejudicial to themselves. A monarch is more ready to be influenced to do something humanely for them; when Augustus was visiting Vidius Pollio, one of the slaves who had accidentaly broken a platter threw himself down before Augustus imploring his protection, that he might not be cut in pieces and thrown into the fish pond. Augustus was so shocked with this that he immediately manumitted all Pollio’s slaves, tho’ Pollio no doubt relished not the behaviour of his guest. In the reigns of Adrian and Antoninus, when monarchy had taken place, there were several laws made in favour of slaves, but never one in the times of the Republic. Slavery, then, may be gradualy softened under a monarch, but not entirely abolished, because | no one person whatever can have so much authority as to take away at once the most considerable part of the nation’s property, because this would occasion a general insurrection.

In an opulent country the slaves are always ill treated, because the number of slaves exceeds the number of freemen and it requires the most rigid discipline to keep them in order. If a freeman was killed in a house68 all the slaves were put to death. Several authors tell us that in the nighttime at Rome, nothing was to be heard but the cries of slaves whom their masters were punishing. Ovid tells us that the slave who kept the gate was chained to it, and the slaves who manured the ground were chained together lest they should run away, and what was more cruel, when an old slave was incapable for work he was turned out to die on an island near the city kept for that purpose.

| Slavery is more tolerable in a barbarous than in a civilized society. In an uncultivated country the poverty of the people makes the number of the slaves any one can keep quite inconsiderable, and therefore their discipline will not be so rigid as where they are numerous. Besides, in a barbarous country the master labours himself as well as the slave and therefore they are more nearly on a levell. In the early periods of Rome the slave worked with his master and ate with him, and the only punishment in case of misbehaviour was the carrying a cross stick thro’ the town or village.

In Jamaica and Barbadoes, where slaves are numerous and objects of jealousy, punishments even for slight offences are very shocking. But in North America they are treated with the greatest mildness and humanity.

Thus we have shewn that slavery is more severe in proportion to the culture of society. Freedom and opulence contribute to the misery of the slaves. The perfection of freedom is their greatest bondage. And as they are the most numerous part of mankind, no human person will wish for liberty | in a country where this institution is established.

It is almost needless to prove that slavery is a bad institution even for freemen. A freemen who works for days wages will work far more in proportion than a slave in proportion to the expence that is necessary for maintaining and bringing him up. In ancient Italy an estate managed by slaves, in the most fertile country, yielded to the master only one sixth of the produce, whereas a landlord even in our barren country receives a third and the tenants live much better. Slaves cultivate only for themselves, the surplus goes to the master, and therefore they are careless about cultivating the ground to the best advantage. A freeman keeps as his own whatever is above his rent and therefore has a motive to industry. Our colonies would be much better cultivated by freemen.

That slavery is a dissadvantage appears from the state of colliers and salters in our own country. They have indeed priviledges which slaves have not. Their property after maintenance is their own, they cannot be sold but along with the work, they enjoy marriage | and religion, but they have not their liberty altogether, and it would certainly be an advantage to the master that they were free. The common wages of a day labourer is between six and eight pence. That of a collier is half a crown. If they were free their prices would fall. At Newcastle the wages exceed not 10d or a shilling, yet colliers often leave our coalworks where they have half a crown a day, and run there tho’ they have less wages, where they have liberty.

There is still one inconvenience more that attends slavery, that it diminishes the number of freemen even to a degree beyond imagination, for every slave takes up the room of a freeman. The inequality of fortune seemed at first a misfortune and laws were made against it. £10 per ann. is reckoned the necessary expence of one man. A landed gentlemen who has £10,000 per ann. spends what would maintain a 1000 men. At first sight we are apt to conceive him a monster who eats up the food of so many, but if we attend to it he is realy usefull, and he eats or wears no more than the rest; £10 serves him too, and his £10,000 maintains a thousand people who are employed in refining his £10 by an infinity of ways so as to make it worth the whole. | This gives room for all kinds of manufactures. When slaves are employed to sift as it were this 10£ out of the 10,000£, one must be a taylor, another a weaver, a third a smith, and thus each takes up a freeman’s place.

We come now to account for the abolition of slavery in this part of the world. The slaves in this and the neighbouring countries were those who cultivated the ground and were what was called adscripti glebae, and could only be sold along with the land. As they had nothing but their maintenance for their labour, the ground was but badly cultivated. To remedy this dissadvantage tenants by stillbow69 were introduced; they had no stock themselves, and therefore the landlord gave them cattle and the implements for plowing, which they resigned at the end of the lease. At harvest the crop was equally divided between the landlord and tenant. This was the first species of free tenants, who were plainly emancipated villains. After this custom had continued for a long time the tenants picked up so much as enabled them to make a bargain with the landlord to give him a certain sum | for a lease of so many years; and whatever the ground should produce, they would take their venture. This is plainly an advantage to the landlord: the ground every year is better cultivated, he is at no expence, and the half of the product70 was better to the tenants than any sum they would give. By the feudal law, the lord had an absolute sway over his vassals. In peace he was the administrator of justice, and they were obliged to follow him in war. When government became a little better established, the sovereign did all he could to lessen this influence, which on some occasions was dangerous to himself and hindered people from applying to him for justice. As therefore the ancient villains were tenants at will, were obliged to perform certain duties to their master, and were entirely at his disposal, a law was made taking away all their burthens but that of being tenants at will, and at last their priviledge was extended and they became copyholders.

Another cause of the abolition of slavery was the influence of the clergy, but by no means the spirit of christianity, for our planters are all Christians. Whatever diminished the power of the nobles over their inferiours | encreased the power of the ecclesiastics. As the clergy are generaly more in favour with the common people than the nobility, they would do all they could to have their priviledges extended, especially as they might have expectations of reaping benefit by it. Accordingly we find that Pope Innocent the IIId encouraged all landlords to emancipate their slaves. Thus the influence of the clergy combining with that of the king hastened the abolition of slavery in the west of Europe. Agreable to this we find that in countries where neither the king nor the church were very powerfull slavery still prevails. In Bohemia, Hungary, and these countries where the sovereign is elective and consequently never could have great authority, and besides, where the church never had any great influence, servitude still remains, because the court is by no means powerfull enough to emancipate the slaves of the nobility.

To shew by what means slaves are acquired, to consider the state of domestic servants in our own country, together with mentioning a certain particular state of families, | will be all that is to be said on this head respecting man as a member of a family.

Slaves may be acquired five different ways. 1st, captives in war in almost every country are slaves; if the conqueror does not kill them, he has a right to make them slaves. 2dly, as captives become slaves, having no body to deliver them, so their children become slaves also. 3dly, persons guilty of certain crimes were made slaves, sometimes to the person injured, sometimes to the public. 4thly, debtors in the ancient state of the Roman Republic were made slaves. If they could not pay their debt it was thought reasonable they should work for it. This still takes place in all countries where slavery is established. 5thly, there is a sort of voluntary slavery when an indigent citizen sells himself to be the slave of another person. When a person sells himself to another for any sum, by the laws of slavery this very sum becomes the property of the person who bought him. But when a person was in debt and obliged to become a slave for it, he would not perhaps choose to be his creditor’s slave | for fear of ill usage, and would therefore sell himself to another person, on condition that he would pay his debt. The citizens of Rome were often in debt, and by that means became entirely dependent upon their superiours. Many of them had no means of subsistance but what they received from candidates for their votes, and as this was by no means sufficient for that purpose, they often borrowed from them to whom they gave their votes, who were ready enough to lend that they might secure them entirely to their interest. By this means they could not give their vote to any other person, unless he paid what they owed to their creditors, which few would be willing to do, as for the most part they owed more than the value of their votes.

In the middle age of the Republic, these two last methods of acquiring slaves were prohibited by express laws, the first by what was called cessio bonorum, and the latter by a law prohibiting any freeman to sell himself.

The slavery in the West Indies took place contrary to law. When that country was conquered by Spain, Isabella and Ferdinand were at the greatest pains to prevent the Indians from falling into a state of servitude, | their intention being to make settlements, to trade with them and to instruct them. But Columbus and Cortez were far from the law, and obeyed not their orders but reduced them to slavery, which in a manner instituted itself among them.

We come now to consider the state of servants. A Negroe in this country is a <?free> man.71 If you have a Negroe servant stolen from you, you can have no action for the price, but only for damages sustained by the loss of your servant. In like manner if a Negroe is killed, the person who does it is guilty of murder. But tho a Negroe servant is intitled to the priviledges of a freeman while here, you can oblige him to return to America and keep him as formerly.72 It is not from Christianity but from the laws of this country that he enjoys freedom, because there is no such thing as slavery among us.

The greatest dependants among us are menial servants {inter menia73 } who are bound from one term to another. They have almost the same priviledges with their master, liberty, wages, etca. The master has a right to correct his servant moderately, and if he should die under his correction it is not murther, unless it was done with an offensive weapon | or with forethought and without provocation.74 A servant can acquire property for his master either when he acts by his express authority, or when a tacit consent is implied. If a servant buys or sells goods in his master’s name, his master has room for an action in case of none payment or of non delivery. As there is a peculiar connection between master and servant, they can be vindicated in many cases where any other person would be found guilty. If either master or servant kill any other person in defence of each other, it is justifiable homicide.75 If a master dies before the term, the executors are obliged to pay up the whole of the servant’s wages, and to maintain him besides.

Apprentices are much in the same way with servants, only with this difference that the master receives a fee with the apprentice and is obliged to teach him a trade, and if he refuse to do it he may be pursued for damages and loss of time.

We come now to consider the particular state of families.

When a father dies leaving his children young, it is necessary that they should be taken care off. Even in the times of exposition, when an infant was sometime kept it was thought cruel to put him to death. | The child was destitute, there were then no hospitals or places of charity, it must therefore be put into the custody of some person. The nearest relation by the father’s side was he whom the law fixed upon. In an early age the maintenance of the child was all that was to be taken care of, for there were no estates to manage, and the mother went back to her father’s family. This guardianship terminated when the child was about 13 or 14 years of age, at which time it was capable in that age to shift for it self.76

But when men came to be possessed of estates, tho’ he might be supposed capable of shifting for himself about that age, yet he could not be capable of managing an estate. Now it became necessary to retain him in pupillarity more than 14 years. By praetorian law, at that age he was allowed to choose his guardians or curators. A curator can do nothing without the consent of the pupil; a guardian can act without his consent, but is accountable to his pupil for whatever he does during his minority. At first lunatics and ideots were almost the only persons who had guardians, and on account of it’s being disgracefull to have one, it was generaly declined. Afterwards the law made invalid all acts of the pupil till he was 21, without the consent of his curators. As the nearest relation by the father’s son77 | is often next heir, it was reckoned improper to trust the person of the son with him. The English law carried this so far that if an estate was left to the son in <?the> father’s lifetime he was not trusted with him. By our law the care of the estate is entrusted to the next heir, as he will probably take best care of it, and the heir to a more remote relation, who will take best care of him, as he cannot be benefited by his death.

We will now mention some offences in families with their peculiar punishments.

Infidelity of the wife to the husband is punished with the greatest ignominy. In the husband, it never was punished with death, nor in the woman unless where the greatest jealousy prevails. It would be thought ridiculous in our country to bring a woman to the scaffold for adultery.

Forcible marriages and rapes are generally punished with death.78

Bigamy as it dishonours the former wife is punished capitally.79 As there is the closest connection betwixt persons in a family, if the wife killsp the husband it is considered as a sort of petty treason, and the punishment by the English law is burning alive.80

The same is the punishment if a servant kills his81 master, or makes an attempt upon him.

Thus we have finished all that is to be said with regard to man considered as a member of a family.

[43 ]Montesquieu, XVI.16.

[l]Interlined, in different ink and apparently by a different hand

[44 ]iv.261 ff.

[45 ]Lafitau, Mæurs des sauvages amériquains (1724), I.477.

[46 ]Heineccius, I.10.1.

[47 ]Reporter’s or copyist’s error for ‘Confarreation’.

[m]Emended in the margin by a second (probably eighteenth–century) hand to ‘Coemption’

[48 ]Deductio in domum, a ceremony evidencing the parties’ consent to the marriage, but never itself a legal requirement. Cf. LJ(A) iii.8–9, above.

[49 ]In fact it was as much a legal marriage, whose issue was legitimate, as the manus marriage. Cf. LJ(A) iii.9, above.

[50 ]i.e. the prohibited degrees of consanguinity.

[51 ]The meaning of this very condensed paragraph will be clearer if a comparison is made with the corresponding passage in LJ(A) iii.13, above.

[52 ]Reporter’s or copyist’s error for ‘confarreation’.

[53 ]Reporter’s or copyist’s error for ‘coemption’.

[54 ]The last two words are probably a copyist’s error for ‘contract in praesenti’.

[55 ]Presumably reporter’s or copyist’s error for ‘his’.

[56 ]Probably copyist’s error for ‘20’. The MS. entry suggests that he hesitated between the two.

[57 ]i.e. the supposed fact that girls are old at 20.

[58 ]The meaning of this sentence will be clearer if a comparison is made with the corresponding passage in LJ(A) iii.42, above.

[59 ]Of Rome.

[60 ]For her life.

[61 ]Her dower.

[62 ]A life interest in a third of the land and a third of the movables if there are children or half the movables if there are no children of the marriage.

[n]A later hand has, in pencil, underlined this word and inserted the emendation ‘heirs’ in the margin

[o]A much later hand has, in pencil, struck out the letters ‘al’ and inserted ‘ine’ above them

[63 ]Cornelius Nepos, V.1.2; cited by Montesquieu, V.5.

[64 ]Presumably ‘consanguinity’ was intended. Civil law and canon law have been interchanged in the account which follows, the actual position being the opposite of what is stated. Cf. p. 166, note 72, above.

[65 ]Decurions, municipal officials; cf. LJ(A) iii.73, above.

[66 ]Cf. TMS II.ii.1.3–5.

[67 ]The last two words are probably a copyist’s error for ‘to have’. He first wrote ‘& have’ and then altered ‘have’ to ‘has’.

[68 ]His own house.

[69 ]Reporter’s or copyist’s error for ‘steelbow’.

[70 ]i.e. the half formerly handed over to the landlord and now kept by the tenant in addition to the other half.

[71 ]This remark was probably occasioned by a judgement of Lord Chancellor Henley (later Lord Northington) in 1762 (2 Eden 126), reiterating the maxim that a man becomes free as soon as he sets foot in England. This had been affirmed by Lord Chief Justice Holt in 1706 (2 Salkeld 666), but had since been challenged (see next note).

[72 ]The word ‘altered’, written in a different ink and hand, appears in the margin at about this point. In 1729 Sir Philip Yorke, attorney–general, and Charles Talbot, solicitorgeneral, gave an opinion that a slave coming to the British Isles from the West Indies did not become free and could be compelled by his master to return to the plantations (reported in Morison’s Dictionary of Decisions, 14547). The first part of this opinion was disapproved by Lord Chancellor Henley (see previous note). The second part was finally overruled by Lord Mansfield in Sommersett’s Case in 1772 (Howell’s State Trials, XX.1), which was followed by the Scottish Court of Session in Knight v. Wedderburn in 1778 (Morison’s Dictionary of Decisions, 14545).

[73 ]Presumably moenia, though ‘menial’ is not in fact so derived.

[74 ]Hawkins, I.29.5.

[75 ]Hale, I.40.2.

[76 ]In Roman law tutela impuberum for boys not in the power of a paterfamilias ended at fourteen years when they became adults and had full legal capacity. Later, curators (an office first developed for insane persons and prodigals) were appointed for those over fourteen and under twenty–five years of age, who were known as minors rather than pupils.

[77 ]Reporter’s or copyist’s error for ‘side’.

[78 ]Hawkins, I.41,42.

[79 ]1 James I, c. 11 (1603).

[p]The copyist wrote ‘punishes’ and this has been emended by a second (eighteenth–century) hand to ‘kills’

[80 ]Hawkins, I.32; II.48.6.

[81 ]Her master, since the statement applies to a servant woman who kills (but not one who merely attempts), and not to a manservant.