thus vested in the Husband, and in the Wife, are the Rights

of Marriage.

Marriage and Property are termed Institutions; inasmuch as they imply the establishment of General Rules, by which, not only the special parties are bound, (as in Contracts); but by which the whole Society also is governed. These two Institutions are the basis of Society. The Right of Personal Security is requisite, in order to preserve a man from hour to hour, and from day to day; the Institution of Property is requisite, in order that man may subsist on the fruits of the earth from year to year; the Institution of Marriage is indispensable, in order to the continuance of the community from generation to generation.

177. The Desires and Affections, growing out of the Institution of Marriage, tend to balance the action of the elementary Desires and Affections, and to maintain man in a moral and social condition. The Elementary Desires and Affections, which lead to the Union of the Sexes, are refined and tranquillized by the marriage tie. The Mutual Confidence, and the identification of habits and interests between husband and wife, which marriage, in its most complete form, tends to generate, give a new charm and a new value to life. When such a conception of a happy married life is formed, it is universally approved of; and thus the Moral Sentiments confirm the Conjugal Affections. Each successive generation of young persons, catching the like sentiments, and susceptible of the like affections, looks with hope and desire to this image of a happy marriage, as an important part of the business and object of life. Thus there is produced a National Sentiment respecting Marriage, which makes the Institution still more efficacious in its influence upon the moral and social condition of those among whom it prevails.

178. The Children which Marriage produces give

rise to Affections which still further tend to bind together the Community by Moral and Social links. In the first period of their existence, Children are a common object of Affection to the parents, and draw closer the ties of their mutual Affection. Then comes the Education of the child; in which the parents have a common care, which further identifies 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 Community.

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 wives. And though Moses permitted to the Jews more than one wife, he prohibited many†; which

four.

"many" is believed by the Commentators to be more than 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 aλoxos; though they are sometimes represented as living in concubinage with Taλλakά. 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."

* Prov. xxxi. + Deut. xvii. 17. Mich. Law of Moses, 11. 12. § Inst. 1. 9. Marriage or Matrimony is the union of a man and a woman so as to constitute an inseparable habitual course of life.

|| Dig. XXIII. 21. A partnership for life, with a joint participation in all Rights human and divine.

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 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, fœmina 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 being thus one Person, if they were admitted witnesses for each other, they would contradict one maxim of Law†; Nemo in propriâ

* Blackst. 1. 442. But perhaps it would be more just to say 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.

causâ testis esse debet: and if against each other, they would contradict another 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 acriter 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 violated. Thou shalt not commit adultery, is the fundamental Law on this subject; but this was commonly applied only to the offense 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 injured husband, * To beat his wife severely with whip or stick. + To apply moderate correction.

Levit. xx. 10.