1 Relation (fun voyage du Le- and Divorces. 'Essays, 1748, p.253. mint, 1718, torn. ii. pp. 27, 28, 2 Esprit des lots, liv. xvi. ch. iv; quoted in Hume, ' Of Polygamy liv. xxiii. ch. xii.
G 82 PART I: JUSTICE men1. 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 thirteen men to twelve women, or seventeen to sixteen, which, as men are more exposed to dangers than women, makes the number about equal2. Now if there be no difference in Europe, we have reason to conclude that 1 Montesquieu, Esprit des his, liv. xvi. ch. iv. note (b), quotes from Kaempfer, History of Japan (transl. by J. G. Scheuchzer, 1727, p. 199), an enumeration females, and gives ' le voyage de Guince de M. Smith, partie seconde, sur le pays d'Ante' as his authority for the statement that more girls than boys are born in Africa. He does not refer to ' Dutch authors ' nor give the figures 50 to i. But, as is remarked by J. Green, the editor of A new general collection of Voyages and Travels, 1745-7. vol. ii. p. 464, much of William Smith's New Voyage to Guinea, 1744, is taken from Bosnian, New and accurate description of the Coast of Guinea, 1705, a work originally written in Dutch. Bosnian (pp. 224) following him, say that the women continue longest un married because their number greatly exceeds that of the men, and also that men commonly have forty or fifty wives. These two statements taken together would justify any one in con cluding that there must be about fifty women to one man. It is true that they do not apply to exactly the same part of the Gold Coast; but minute accuracy in ridiculing travellers' tales would not appear necessary to Adam Smith.
2 Montesquieu fails to distin guish between the proportion of males to females born, and the proportion of males to females living. In the text above the two things are kept separate. The remarks about Guinea and Japan refer to persons living, the ' thirteen men to twelve women, or seventeen to sixteen ' refer to persons born, and ' the number' to the number living. Dr. John Arbuthnot, whom Montesquieu quotes as an au thority for the statement that the number of boys born in England exceeds that of girls, gave some London statistics on the subject in Philosophical Transactions, 1710, pp. 186-90, and remarked that the greater number of boys was necessary in order to make up for their greater liability to ' external accidents ' in consequence of their having to ' seek their food with danger.'
DOMESTIC LAW 83 DOMESTIC LAW 83 there is not any difference in any other place. The laws of nature are the same everywhere, the laws of gravity and attraction the same, and why not the laws of generation? In some of the fore-mentioned places there may indeed be more women than men. In places where the seat of religion is, and where the court sits, and consequently the opulent live, there must be more women, because the rich only have seraglios, and they purchase the women from other places, so that there is a constant import of women from those 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, though it takes place in Turkey. In every country freedom puts out polygamy; there is nothing that free men will less submit to than a monopoly of this kind, but despotism is always favourable to polygamy.
Montesquieu observes still further in favour of poly gamy, that in some countries women are marriage able at eight or nine, and are old and withered at twenty l. When they have their beauty they cannot have much understanding, and when it increases their beauty is gone, and consequently they cannot long be agreeable companions, and therefore a husband had need of more than one2. It may be their custom3 indeed to deflower infants, but the fact is not well attested. Cleopatra was 1 MS. reads ' 30,' which is in- vingt: la raison ne se trouve consistent with the context and jamais chez elles avec la beaute.'
Esprit des lot's, liv. xvi. ch. ii: 2 A free translation from the 1 Les femmes sont nubiles dans first paragraph of Esprit des lots, les climats chauds a huit, neuf liv. xvi. ch. ii.
et dix ans: ainsi 1'enfance et le 3 I. e. the custom of the people manage y vont presque toujours in the warm climates spoken of ensemble. Elles sont vieilles a by Montesquieu.
84 PART I: JUSTICE thirty-six when taken by Augustus, yet she was with child. Constantia bore a child at fifty-four1. But though the fact were true2, it is not reasonable that polygamy should take place, but only voluntary divorce. If women were only useful ten or twelve 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 four or five children who are connected with my friend, but if there are a hundred in the same relation they are little regarded. 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 con quered, 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 foreign invaders.
Polygamy is exceedingly hurtful to the populousness 1 Villani says that Constance of ' fifty-four ' is a reporter's mis- Sicily was ' d'anni 50 o piu' at the take for ' fifty or more.' birth of Frederick II (Historic 2 That girls are married at Florentine, lib. v. cap. xvi. in Mura- an early age, and become old tori, Rerum Italicarnm scriptores, and withered at twenty, torn. xiii. p. 140 B). Possibly DOMESTIC LAW 85 of a nation. An hundred women married to an hun dred 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 those countries there are regulations regarding populous- ness, and some other circumstances contribute to it, such as the remarkable fertility of the soil.
Thus we see marriage is of two kinds, viz. polygamy or monogamy, of which the latter is of three kinds: first, when the husband can divorce the wife at pleasure; secondly, when the power of divorce is equally in their power l; and thirdly, 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 \vhat is very disagreeable to society is the occasion of divorce. But it is always better that the marriage tie should be too strait, than that it should be too loose. The unlimited power of divorce in the latter ages of the Republic 2 was productive of the most disorderly consequences, the prevention of which sufficiently atones for any hardships it may occasion. When both parties have the power of divorce, they can have no mutual trust nor dependence upon each other, but their interests are quite separate.
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 'This should obviously read either 'in her power' or 'in the power of each.' 2 Of Rome.
86 PART I: JUSTICE slavery, has no interest at all in the husband's 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 inde pendent 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 courtesy of the life-rent of his wife's estate. In England the husband can dispose of all [his wife's] 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 [her] 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 l, whether there be children or not. This is con sidered as her dowry2. In England she has a complete third of all 3, but in Scotland she has only a third of all 1 Scil. ' for her life.' qualification ' if there be chil- 2 A mistake for ' dower.' dren ' as regards personal estate, 8 Of course with the qualifi- since if there are no children cation indicated in note i above the widow takes half, as regards land, and with the DOMESTIC LAW 87 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 executors j 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 [for] 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 separated he is not even obliged to pay [for] 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 infmitum. Nothing can be more shocking to nature than for a mother to marry her son. By this the mother becomes inferior 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 superior when he is husband, and accordingly we find that many barbarous nations tolerated this 2. But still it is unnatural that the father, the guardian and instructor of the daughter, should turn her lover and marry her. Besides, a mother can never look agreeably on a daughter who will probably supply her place. Nothing can be more destructive of domestic happiness. For the same reasons, the uncle and 1 Rather, ' heirs.'
2 The argument is the same as that of Montesquieu, Esprit lies his, liv. xxvi. ch. xiv.
88 PART I: JUSTICE niece, or the aunt and nephew, never marry. At Rome and Carthage indeed, they used sometimes to give a dis pensation 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 those ages when they were brought up in the same house. At Athens a man might marry his sister consanguinea but not his sister literal^. Many eminent men married in this manner, thus Cimon married his father's daughter Elpinice 2. By the law of England the wife of the deceased grand-uncle can marry her husband's grand-nephew, it being above four degrees 3.
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 sister's children. But it may be answered to this that it entirely hinders all intercourse between the sister and her brother- in-law's family, and that it might be expected that she would answer this purpose by living in his house un married with no children of her own. The canon and 1 Uterine. natas uxores ducere.' Cornelius 2 ' Habebat in matrimonio so- Nepos, Cimon.
rorem suam germanam nomine 3 This was decided in 1669 Elpinicem, non magis amore in the case of Thomas Harrison quam patria more ductus, nam and Jane Abbot. Vaughan, Re- Atheniensibus licet eodem patre ports, pp. 206-250.
DOMESTIC LAW 89 civil law reckoned affinity1 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 2. 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 intestate, 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 nobody, so nobody can succeed to him 3, 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 all4. The king is still considered as ultimus heres. In Scotland there is a further inconvenience attending it. As the king is the heir of bastards, a bastard 1 A mistake for ' consan- of the two different methods of guinity ' or ' consanguinity and computing the degrees of re- affinity.' lationship. The case is exactly 2 Doubtless owing to a slip the opposite of what is stated in on the part of the lecturer, the text.
' canon ' and ' civil ' have changed z Scil. ' if he die childless.' places throughout this exposition 4 See above, p. 86 and notes.
90 PART I: JUSTICE 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 anything less than an act of parliament, cannot give him inheritable blood, but an act of the whole legislature can do anything.
The canon and civil law restore to blood a person born out of wedlock in the following ways l: — First, per subsequens mafn'mom'um, or marrying the woman that had the children. As concubines were numerous, it was enacted that whoever married his con cubine legitimated her children. This Justinian after wards made perpetual.
Secondly, per oblationem curiac. When the children were willing to execute certain parish offices, as deacons 2, &c., though this entitled them only to succeed to the father, and not to his relations.
Thirdly, 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 free man. Bastards wrere considered as free men, and if they were willing to accept might be adrogated as such 3.
Fourthly, per [rc]scriphtm principis, which was much the same with letters of legitimation.
Fifthly, per testainentum, by which they probably suc ceeded only to their father's estate.
The canon law introduced the subsequens matrimonium into all countries but England. The English clergy were 1 Heineccius, Antiq. Rom. lib. non essent in patria potestate i. tit. x. §§ 23-28. sed sui iuris, poterant profecto 2 A free rendering of ' decu- aparentenaturaliadrogari.' Hei- riones.' neccius, Antiq. Rom. lib. i. tit.
DOMESTIC LAW 91 then l unpopular by joining with the king against the barons, and therefore in England the subsequens matri- monium never could legitimate. That subsequens ma- trimoninm 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, though they should marry afterwards. Incestuous children also could not succeed, unless legitimated by a dispensation from the Pope.
Thus we have seen the disabilities and incapacities of illegitimate children, which can only have an effect where monogamy prevails; and indeed, these alone hinder poly gamy from gaining ground in any country, because, if bastards were allowed to succeed, men would hardly subject themselves to the inconveniences of lawful mar riage. To have a wife entirely in their power, and to take others when they please, would be more convenient.
[§ 2. Parent and Child.} 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. 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 1 Presumably in 1235-6, when law should be altered. Statute of the earls and barons refused the Merton, 20 Hen. III. cap. 9. request of the bishops that the 92 PART I! JUSTICE 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. Though 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 them1. 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 ins 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 grandfather'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 naturally 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 2. The twelve tables indeed mention this privilege of the father, but it is probable it was only those who married without their father's consent.
In like manner the ins vitae ct 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 shows that the patria potestas was not altogether absolute. This power of the father weakened 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 2 Dion. Hal. Antiq. Rom. lib. ii. cap. xxvii. quoted in Heineccius, Aittiq. Rom. lib. i. tit. ix. § 6.
DOMESTIC LAW 93 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, though 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 7. This shows that the property after marriage must have been their own. The law seems to have- been made because the wife brought a fortune along with her, and therefore it was but reasonable 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 castrcnsc, afterwards whatever they acquired by the liberal and mechanic arts. This was extended b}' Adrian and afterwards by Justinian to everything 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 disinheriting them limited. There were only certain cases in which it was in his power.
1 Digest, lib. xxiii. tit. ii. cap. 19.
2 MS. reads ' & has ' for ' to have,' but ' has ' is written over ' have.'
94 PART I: JUSTICE 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 wit, of taking care of his morals. But when out of the family he was not so imme diately concerned about him. The father has this particular privilege 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.
[$ 3. Master and Servant.]
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 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 nobody to whom they could complain, they had no connexion with any person, and having none to take their part they necessarily fell into a state of slavery. Accord ingly 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 DOMESTIC LAW 95 DOMESTIC LAW 95 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 disadvantages, there are many others, to which the ancient Greek and Roman slaves as well as our negroes were liable, though less attended to.
First. 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.