their sympathies and objects. The Brothers and Sisters of the child, when they come, bring with them new bonds of affection, new sympathies, new common objects. The habits of a Family take the place of the wishes of an Individual, in determining the habitation, the mode of living, the meals, and the like; and thus, these circumstances are determined by influences, more social and more refined than mere bodily desire. The Family is one of the most important elements of the social life of every Commu nity. Familia is the word by which the Romans denoted the persons thus collected in the house, along with their parents and also along with the servants of the House. (Famuli) The head of the family was called Paterfamilias; his wife was Materfamilias. 179. The nature and extent of the Rights, which Marriage gives, have been different in different ages and countries; and the national conception of the conjugal bond has often fallen short, in various degrees, of that complete and permanent union of one man with one woman, which we have pointed at. Polygamy, Concubinage, and arbitrary Divorce, have been tolerated in many States; but still, the notion of a complete Marriage appears always to have been, the union of one Husband and one Wife for life. Although Polygamy existed in the earlier periods of the Jewish nation, we find, in the Scriptures, that, beginning with man, at his creation, a single woman was given to him as his helpmate. And though Solomon is related to have had many wives, as the custom of Asiatic Sovereigns has generally been; in the description of a good wife which is inserted in his Book of Proverbs*, she is represented as sole mistress of the household, and as the object of an entire trust and respect, inconsistent with her being one of several * Prov. xxxi. wives. And though Moses permitted to the Jews more than one wife, he prohibited many*; which "many" is believed by the Commentators to be more than four. This permission was rather a concession to an existing practice, than a law consistent with the general scheme of the Laws of Moses. The practice of polygamy is said to have ceased entirely among the Jews after the return from the Babylonish Captivity. 180. Polygamy was not a Grecian practice. The Heroes of Homer appear never to have had more than one ǎoxos; though they are sometimes represented as living in concubinage with aλλakái. According to the views of Greek Legislators and Philosophers, Marriage was to be considered as having for its object the maintenance of the State, by the continuation of the race of citizens: and we see, in the Republic of Plato, and elsewhere, indications that they could tolerate extravagant deviations from the more complete domestic conception of marriage, if the political object was provided for. 181. The Roman Law, however, approached closely to the conception of a complete marriage, which has been noticed. The Definition given in the Institutes is this: "Nuptiæ, sive Matrimonium, est 'viri et mulieris conjunctio, individuam vitæ consuetudinem constituens." In another place§ it is described as "Consortium omnis vitæ: divini et humani juris communicatio." 182. The English Law goes further, and considers the Husband and Wife as one Person. As the Lawyers state it||: the very being or legal existence *Deut. xvii. 17. + Mich. Law of Moses, 11. 12. Inst. 1. 9. Marriage or Matrimony the union of a man and a woman so as to constitute an inseparable habitual course of life. § Dig. XII. 21. A partnership for life, with a joint participation in all Rights human and divine. Blackst. 1. 442. But perhaps it would be more just to say of the woman is suspended during the marriage, or at least is incorporated and consolidated in that of her husband: under whose wing, protection, and cover, she performs everything; and is therefore in our Law French a feme-covert, fæmina viro co-operta; and her condition during marriage is called her coverture. Hence a man cannot grant anything to his wife by a legal act, or enter into covenant with her; for this would be to covenant with himself. The husband is bound by law to provide his wife with the necessaries of life; if she incur debts for such things, he is obliged to pay them. Even if the debts of the wife have been incurred before marriage, the husband is bound to discharge them: for he has espoused her and her circumstances together. If she suffers an injury, she applies for redress in her husband's name as well as her own. If any one has a claim upon her, the suit must be directed against her husband also. In criminal prosecutions, indeed, the wife may be indicted and prosecuted separately; for the union is only a civil union. But even in such cases, husband and wife are not allowed to be Evidence for or against each other: partly, say the Lawyers, because it is impossible their testimony should be impartial; but principally, because of the union of Person. For be ing thus one Person, if they were admitted witnesses for each other, they would contradict one maxim of Law*; Nemo in propriâ causâ testis esse debet: and if against each other, they would contradict another that the principle which limits the rules of Law, as between Husband and Wife, is not that of the union of the two, but of the conjugal supremacy of the Husband. *No one can be a witness in his own case. No one is bound to accuse himself. But perhaps it would be more just to say, that the principal reason is not that of the identity of person; but that community of interest, which prevents their being evidence for each other; while the public policy of preventing domestic quarrels, prohibits their being evidence against each other 9 Maxim: Nemo tenetur se ipsum accusare. In the Roman Law, on the contrary, the Husband and Wife are considered as two distinct Persons, and may have separate Estates, Debts, Contracts, and Injuries. And hence, in the Ecclesiastical Courts of England, which derive their views and maxims from the Roman Law, a woman may sue and be sued, without her husband. 183. According to the System of Law which we have been describing, the husband is the Head of the Family, and the Wife is subordinate to him. He represents the Family in its legal relations; and in such matters she has no Rights against him. He has a Right to act for her; and even, in some cases, to coerce her. The Roman Law allowed the husband, for some misdemeanours*, "Flagellis et fustibus acri. ter verberare uxorem ;" for others, only† "Modicam castigationem adhibere." Something of the same kind was allowed by the old Law of England; for, say the Lawyers, since the husband is to answer for her misbehaviour, the Law thought it reasonable to entrust him with the power of restraining her. And the Right to obedience, from the Wife, is vested in the Husband, for the sake of preserving Order in the Family, and of protecting and benefiting all the Members of it. 184. The inequality between Men and Women, which thus appears in the ancient conceptions of Marriage, is shown also in the established notions of the Wrongs, by which the Rights of Marriage are vio. lated. Thou shalt not commit adultery, is the fundamental Law on this subject; but this was commonly applied only to the offence committed by or with the wife. By the Jewish Law‡ the adulterer and the adulteress were to be put to death. By the Old Roman Law, the adulterer was at the mercy of the in *To beat his wife severely with whip or stick To apply moderate correction + Levit. xx. 10 jured husband, and might be prosecuted by any per. son; but under the emperors, the Right of prosecution was limited to the husband, or the near relatives of the adulteress. The adulteress was to be repudiated and otherwise punished. In England, adultery, as a public crime, is under the jurisdiction of the Ecclesiastical Courts; but the Common Law also gives, to the Husband, Damages from the person who was guilty of Criminal Conversation with his wife. 185. The Right of the Parent to the obedience of the Child is a fundemental Rule in all the ancient Forms of Society. The Law of Moses, Honour and obey thy Father and thy Mother; is recognized in all nations. The ancient Roman notions carried this so far, that they gave the Father a Right over the life of the Son. Even in the latest times, the Son is contemplated as entirely in the power of the Father; and this expression implied that the Father was invested with the Right to act for the Children upon all legal occasions. The Institute says*: "Qui ex te et uxore tuâ nascitur, in tuâ potestate est: Item qui ex filio tuo et uxore ejus nascitur, id est nepos tuus et neptis, æque in tuâ sunt potestate; et pronepos et proneptis, et deinceps cæteri. Qui autem ex filiâ tuâ nascuntur, in potestate tuâ non sunt, sed in patris eorum. And this went so far that the Son could have no Rights against his Father. All that he acquired became, not his, but his Father's. Some Jurists refer this to a legal fiction of the unity of the Father and the Son; others, to a maxim that the condition of the Master of the Family might be made better by the * Inst. 1. 9. He who is born of you and your wife is in your power: also he who is born of your son and his wife, that is, your grandson and grand-daughter, are likewise in your power; and so your great-grandson and great-grand-daughter; and in the same way, for the succeeding steps. But they who are born of your daughter are not in your power, but in their father's. |