2 The particular information xii. 30-38. It is not all to be found contained in thissentence appears either in Tacitus or in Montes- 68 PART I: JUSTICE people a judge is the most terrible sight in the world. When property was extended, it therefore became neces sary to restrain their arbitrary decisions by appointing strict rules which they must follow. Thus the legislative power was introduced as a restraint upon the judicial. In Britain the king has the absolute executive and judicial power. However, the Commons may impeach his minis ters, and the judges, whom he appoints, are afterwards independent of him. The legislative power is absolute in the king and parliament. There are, however, certain abuses which no doubt make resistance in some cases lawful, on whatever principle government be founded.
Suppose that government is founded on contract, and that these powers are entrusted to persons who grossly abuse them, it is evident that resistance is lawful, because the original contract is now broken. But we showed before that government was founded on the principles of utility and authority. We also showed that the principle of authority is more prevalent in a monarchy, and that of utility in a democracy, from their frequent attendance on public meetings and courts of justice. In such a govern ment as this last, as the principle of authority is, as it were, proscribed, popular leaders are prevented from acquiring too great power, because they are not allowed to continue in office till they acquire any great ascendency; but, still, there is a respect paid to certain offices, whoever be the person that exercises them. In Britain both principles take place. Whatever be the principle of alle giance, a right of resistance must undoubtedly be lawful, because no authority is altogether unlimited. Absurdity of conduct may deprive an assembly of its influence as well as a private person, an[d] imprudent conduct will take away all sense of authority. The folly and cruelty quieu, Esprit des his, liv. xix. ch. ii, to hiss,' is erroneously attributed where the Germans' saying to the to Tacitus instead of Florus. Roman advocates, 'Viper, cease PUBLIC JURISPRUDENCE 69 of the Roman emperors make the impartial reader go along with the conspiracies formed against them.
It is to be observed that the right of resistance is more frequently exerted in absolute monarchies than in any other, because one man is more apt to fall into imprudent measures than a number. In Turkey eight or ten years seldom pass without a change of government. The same degree of ill usage will justify resistance to a senate or body of men. It must be allowed that resistance is in some cases lawful, but it's excessively difficult to say what an absolute sovereign may do or may not do, and there are different opinions concerning it. Mr. Locke says that when a sovereign raises taxes against the will of the people resistance is lawful1, but there is no country besides England where the people have any vote in the matter. In France the king's edict is all that is necessary, and even in Britain it is but a very figurative consent that we have, for the number of voters is nothing to that of the people. Exorbitant taxes no doubt justify resistance, for no people will allow the half of their property to be taken from them; but though the highest propriety be not observed, if they have any degree of moderation, people will not complain. No government is quite perfect, but it is better to submit to some inconveniences than make attempts against it.
Some other writers allege that the king cannot alienate any part of his dominions2. This notion is founded on the principle of the original contract, by which indeed, though a people were willing to submit to one government, they will not have one of another's choosing. This doctrine is, however, groundless. In France and Spain great part of 1 Locke, Civil Government, §§ Cocceius on Grotius, De iure belli 138-140, as quoted by Hume, ' Of et pads, lib. i. cap. iii. § 12; Vattel, the Original Contract,' Essays, Droit des gens, liv. i. ch. i. § 17; 1748, p. 307. Hutcheson, System of Moral Phi- 2 E.g. Pufendorf, De iure natu- losophy, vol. ii. pp. 297-299. rae et gentium, lib. viii. cap. v. § 9; 70 PART I I JUSTICE the dominions have been given to the king's children as a portion without any complaint; when Florida was put into our hands, they never made any opposition. The King of Spain and Czar of Moscovy can even alter the succession as they please. This was in general the case in all feudal jurisdictions, they were divisible1 at the pleasure of the lord. It was but lately that the right of primogeniture took place in the principalities of Germany. It is alleged that the King of France cannot alter the Salic law, by which daughters cannot succeed to the crown. This law was owing to the power of the princes of the blood, who would not allow the succession to go past themselves. But if France had been as destitute of nobility as Britain was at the accession of the present family, the Salic law might have been altered as easily as any other law.
It is hard to determine what a monarch may or may not do. But when the summa potestas is divided as it is in Britain, if the king do anything which ought to be consented to by the parliament, without their permission, they have a right to oppose him. The nature of a parlia mentary right supposes that it may be defended by force, else it is no right at all. If the king impose taxes or continue them after the time is expired, he is guilty of breach of privilege. James II attempted some impositions of this sort upon importation. In the petition of right2 it is expressly appointed that the taxes shall not continue a moment after the time determined by act of parliament.
When the parliament saw the crown going to James II, who was a Roman Catholic, they appointed two tests, to wit, an abjuration of the Pope and the oath of supremacy, and that every person within three months after his acceptance of any office should take the sacrament after the form prescribed by the Church of England. King James employed Roman Catholics both in the army and 1 See below, p. 118. 2 A slip for ' Bill of Rights.'
PUBLIC JURISPRUDENCE 71 privy council, and besides, appointed persons entirely un qualified to the treasury, and broke in upon the privileges of the Universities. He also assumed a power of dis pensing with the law in cases where he himself was no way concerned. Some of the bishops, merely for doing what every British subject has a right to do, to wit, remonstrating against such proceedings, were sent to the Tower. Nothing could more alarm the nation than this attack upon the bishops. One Sharp preached against popery, the religion of the king, upon which the bishop of London was ordered to suspend him, but he only cautioned him against such practices. The king, not pleased with this, created a court of high commission, which had been long abrogated and discharged ever after to be erected, and summoned both the bishop and Sharp to appear before it. The king, perceiving the disgust of the people, and thinking it proceeded from the fear of those possessed of abbey lands, lest they should be taken from them, and from a fear of a change in the religion of the country, he declared that he would grant liberty of conscience to all, and retain every one in the possession of the Church lands. This plainly showed his intention to change the religion of the country, which is the most difficult thing in the world. It is necessary before a religion be changed that the opinions of the people be changed, as was done by Luther, Calvin, John Knox, and others before the Reformation. King James then applied to the army, but found they by no means sympathized with him. He, in return, told them that he would never any more bring down his sentiments to theirs, nor consult them on any occasion1. It was no wonder that by such practices 1 He ' sullenly told them that 768. But the rest of the account for the future he would not do of the causes of the Revolution them the honour to ask their appears to be founded on Burnet, advice.' Rapin, History of Eng- History of his Own Time, vol. i.
land, transl. by Tindal, vol. ii. p. pp. 621-714, rather than Rapin.
72 PART I: JUSTICE the Revolution was brought about, and the family set aside, for the whole nation was disposed to favour the Prince of Orange. They might justly have passed by the whole family, but they generously dispensed with the rigorous law which corrupts the blood with the forfeiture of the estate, and bestowed the crown on his two Protes tant daughters. Their brother, on account of the suspicions of his being a Papist, as he had been educated in that religion, was rejected. The present family, being the nearest Protestant heirs, was by an act of parliament settled in the government, and it was enacted that no prince, unless a Protestant, shall sit on the throne of Britain. Thus King James, on account of his encroach ments on the body politic, was with all justice and equity in the world opposed and rejected.
Thus we have considered man as a member of a state.
As ecclesiastics and laymen are two grand divisions of men in a state, under this head too might be considered ecclesiastic law and the respective rights of these two bodies of men. Here too we might consider military law, which arises from considering the state as divided into two bodies, civil and military. But these are foreign to our purpose.
[DIVISION II.] 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 wit, between husband and wife, parent and child, master and servant '.
First of these we shall consider husband and wife. In every species of animals the connexion between the sexes is just as much as is necessary for the propagation and support of the species. Quadrupeds, whenever the female impregnates, have no farther desire for each other; the support of the young is no burden to the female, and there is no occasion for the assistance of the male. Among birds some such thing as marriage seems to take place, they continue the objects of desire to each other, their connexion remains for a considerable time, and they jointly support the young; but whenever the young can shift for themselves all further inclination ceases 2. In the human species women by their milk are not capable of providing long for their children. The assistance of the husband is therefore necessary for their sustenance, and this ought to make marriage perpetual3. In countries, however, where Christianity is not established, the husband possesses an 1 Hutcheson, System of Moral * Hutcheson, Introduction to Philosophy, vol. ii. p. 149. Moral Philosophy, p. 257; System 2 Locke, Civil Government, §§ 79, of Moral Philosophy, vol. ii. pp. 80; Hume, ' Of Polygamy and 150, 161.
74 PART I: JUSTICE unlimited power of divorce, and is not accountable for his conduct. In ancient Rome, though they had the power of doing it, yet it was thought contrary to good manners l. We may observe an utility in this constitution of our nature that children have so long a dependence upon their parents, to bring down their passions to theirs, and thus be trained up at length to become useful members of society. Every child gets this piece of education, even under the most worthless parent.
On this subject it is proposed to consider the duties of each of the two parties during their union, how this union should [be] begun and ended, and what are the particular rights and privileges of each.
The first duty is fidelity of the wife to the husband; breach of chastity is the greatest of offences. Spurious children may be introduced into the family, and come to the succession instead of lawful ones. This real utility, however, is not the proper foundation of the crime. The indignation of the public against the wife arises from their sympathy with the jealousy of the husband, and ac cordingly they are disposed to resent and punish it. The sentiment of jealousy is not chiefly founded, or rather not at all, upon the idea of a spurious offspring. It is not from the particular act that the jealousy arises, but he considers her infidelity as an entire alienation of that preference to all other persons which she owes him. This is the real idea he has of it, as may appear from the following con sideration. The idea we have of a father does not arise from the voluptuous act which gave occasion to our existence, for this idea is partly loathsome, partly ridiculous. The real idea that a son has of a father is the director of his infancy, the supporter of his helplessness, his 1 Sell, 'to exercise the power Opera omm'a, 1744-8, vol. iv), lib. i.
of divorce.' Heineccius, Antiqiti- adp. § 45; Montesquieu, Esprit latum Romanarum hmspruden- des lot's, liv. xvi. ch. xvi. tiam illustrantium syntagma (in DOMESTIC LAW 75 guardian, pattern and protector. These are the proper filial sentiments. The father's idea of a son is of one that depends upon him, and was bred up in his house or at his expense, by which connexion there should grow up an affection towards him; but a spurious offspring is dis agreeable from the resentment that arises against the mother's infidelity.
In those countries where the manners of the people are rude and uncultivated, there is no such thing as jealousy, every child that is born is considered as their own. The foundation of jealousy is that delicacy which attends the sentiment of love, and it is more or less in different countries, in proportion to the rudeness of their manners. In general, wherever there is little regard paid to the sex, infidelity is little regarded, and there will be the greatest looseness of manners. Agreeable to this we find that Menelaus expressed his resentment against Paris, not against Helen, and this not for debauching her, but for carrying her away. In the Odyssey she talks before her husband of that action without reserve. In Sparta it was common for them to borrow and lend their wives. When manners became more refined, jealousy began, and rose at length to such a height that wives were shut up, as they are among the Turks at this day. As mankind became more refined, the same fondness which made them shut up women made them allow them liberties. In the latter ages of Greece women were allowed to go anywhere. This same fondness, carried to a high degree, gives as great a licence as when infidelity was disregarded. In no barbarous country is there more licentiousness than in France. Thus we may observe the prejudice of manners, with respect to women, in the different periods of society.
Though there was little or no regard paid to women in the first state of society as objects of pleasure, yet there never was more regard paid them as rational creatures. In North America the women are consulted concerning the 76 PART i: JUSTICE carrying on of war, and in every important undertaking1. The respect paid to women in modern times is very small; they are only put to no trouble for spoiling of their beauty. A man will not exempt his friend from a laborious piece of business, but he will spare his mistress. When the in fidelity of the wife is considered as an injury to the husband, it is necessary that unmarried women should be laid under restraints, that when married they may be accustomed to them. Hence the origin of punishment for fornication.
We come now to consider how this union is begun. As the duty after marriage is quite different from what it was before, it is necessary that there should be some ceremony at the commencement of it. This differs in different countries, but in general is connected with religion, as it is supposed to make the greatest impression. In the infancy of society, though marriage seemed intended to be perpetual, yet the husband had an unlimited power of divorce, though it was reckoned indecent to exercise it unless for an enormous crime. The reason was that the government durst intermeddle little with private affairs, and far less with matters in private families. For the security of government they endeavoured by all means to strengthen the power of the husband and make him as absolute as possible. In ancient Rome the husband was sovereign lord of life and death in all matters belonging to his own family.
In Rome three kinds of marriages took place2: First, by confarreation, a religious ceremony; Secondly, by coemption 3, when the husband bought his wife; Thirdly, by use. If he had lived with her a year and day, she was his by prescription, and he could divorce her.
1 Lafitau, Mceitrs des sauvages i. tit. x. § i.
2 Heineccius, Antiq. Rom. lib. and below, p. 79.
DOMESTIC LAW 77 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 incline 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 domi, 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 hus band, and had equally the power of divorce. As the marriage was founded upon the consent of both parties, it was reasonable that the dissent of either party should dissolve it.
This form of marriage is pretty similar to the present, with this material difference however, that it did not legitimate the children nor preserve the honour of the women 2. The Roman form caused great disorders. When the parties separated, which was often the case, they married others, and very often the women went through five or six husbands3. 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 1 ' Deductio domi ' should be from Heineccius' statement, ' deductio in domum.' This was ' Contracto sine uno horum an incident of all kinds of mar- rituum matrimonio, uxor non riage. The ' new kind of mar- conveniebat in manum mariti, riage' is thus described by neque adeo fiebat materfamilias, Heineccius: ' Si itaque uxor sed matrona.' Antiq. Rom. lib. i. nollet in manum convenire: in- tit. x. § 14.
bantur, et domum deducebatur, sulum numero sed maritoruin sed dabat ilia operam ut saltim annos suos computant' Seneca, tres noctes a marito abesset' De benef. lib. iii. cap. xvi, quoted in Antiq. Rom. lib. i. tit. x. § 14. Heineccius, Antiq. Rom. lib. i.
2 Perhaps a rash inference adp. § 46.
78 PART I I JUSTICE 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, how ever, the power of the husband was very great. By a law there, if a man abused his wife he was liable to a fine, but if the wife misbehaved she was put to death.
As in general only flagrant crimes were taken notice of by the civil court, small ones went into the hands of the ecclesiastics, and that first gave occasion to their great power. When the civil court gave no redress for breach of contract, the ecclesiastics punished the offender for perjury, and when any difference happened betwixt man and wife, they made them suffer penance for it. Afterwards the power of divorce was taken away unless for adultery, and when the one was afraid of bodily harm from the other. Even this last was not a perfect divorce, for neither of the parties was allowed to marry again, but only a separation a mcnsa et toro.
The causes of a perfect divorce, after which they were allowed to marry again, were these three. First, if they were within the degrees of consanguinity, the marriage was made null unless they had a dispensation from the Pope. Secondly, precontract with any other woman. Thirdly, frigidity in a man, and incapacity in a woman. The ecclesiastics brought in other alterations besides these with regard to marriage. It is to be observed that the laws made by men are not altogether favourable to women. They considered the infidelity of the husband and wife were equally punished, he had no more power to divorce than she l. Adultery, saevitia, and metus were con sidered as causes of separation, but not of divorce.
1 The text appears to be altogether unfavourable to women, corrupt. It should perhaps read, They considered the infidelity of ' It is to be observed that the the husband and wife were to laws made by clergymen are not be equally punished; he had no DOMESTIC LAW 79 The canon law, when it took place, was dictated by ecclesiastics, who on most occasions copied the Roman law, as they were the only persons that understood Latin, and among whom the remains of literature were preserved. At first even the ecclesiastic law required no ceremonies at marriage. As the ceremonies of confarreation and coemption l had gone into desuetude in the latter times of the Roman law, when the only thing that was required was the dcdudio domi 2; so by the ecclesiastic law for a long time, a contract of any kind made a marriage, whether a contract in praesenti or in futuro. Contract in praesenti is when I say, I take you for a wife, or, I take you for a husband. Contract in futuro is when they say, I will do it. Either of these contracts might be proved either by evidence or by oath, if they declared themselves married persons, or that they were to be so. Pope Innocent III enacted that all marriages should be performed in facie ccclesiae, but though this was considered as the only decent marriage, yet others were often in use and in some cases were valid. If a person was married in futuro, and after wards in facie ccclesiae, and the first wife made no opposi tion till after the banns were out, the first marriage was null. If it was contract in praesenti the second was null 3. This was the case in England till the late Marriage Act4. If a contract in futuro can be proved, or if the man refuse his oath, the marriage is in some countries considered as valid. The contract in praesenti is everywhere valid, espe cially 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.
more power to divorce than she.' * The report is unduly con- Cp. Montesquieu, Esprit des lots, densed. What 'the late Marliv. xxvi. ch. viii. riage Act' (26 Geo. II. cap. 33) 1 MS. reads ' exemption ' as on did was to make contracts of p. 76 above. matrimony no longer enforceable 2 See above, p. 77, note T. in the ecclesiastical courts.
3 MS. reads 'contractu present!.'
8o PART I: JUSTICE 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 naturally leads us to consider the origin of polygamy. It is to [be] observed that though voluntary divorce be attended with incon veniences, 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, though either of them might live very well elsewhere. The same is the case with poly gamy. If a woman consents to be one of five, or twenty, or more wives, and the law1 allows it, there is no injury done her, she meets with the treatment which she might naturally expect. The ancient Jewish and oriental laws tolerated polygamy, but though 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 his- is divided among forty or fifty children, and hers J MS. reads ' laws.' 2 MS. reads ' he.'
DOMESTIC LAW 8l only among four or five. 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 rebels 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 women that they are en tirely 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, though 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 dependence 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 affec tion. 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 alleged that there are more women born than men. Montesquieu says that at Bantam in the East Indies there are ten women born for one man2. Dutch authors say that on the coast of Guinea there are fifty to one. The account from Japan is better attested, where it is said there are eleven women to nine