Divorce

The unlimited power of divorce in the latter ages of the Republic 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 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 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 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 dies first, the wife has 1/3 of his land estate, whether there be children or not.

• This is considered as her dowry.
• In England, she has a complete 1/3 of all.
• But in Scotland, she has only 1/3 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 executors 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.

Between 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 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. 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 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 those ages when they were brought up in the same house. At Athens a man might marry his sister consanguinea but not his sister uteral. Many eminent men married in this manner, thus Cimon married his father’s daughter Elpinice. By the law of England the wife of the deceased grand-uncle can marry her husband’s 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 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 unmarried with no children of her own.

The canon and civil law reckoned affinity 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 one2. 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. Therefore he 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 nobody, so nobody can succeed to him3, 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 heres. 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 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:

1. Per subsequens matrimonium

This is marrying the woman that had the children. Concubines were numerous. It was enacted that whoever married his concubine legitimated her children.

Justinian afterwards made this perpetual.

2. Per oblationem curiae.

When the children were willing to execute certain parish offices, as deacons2, etc., though this entitled them only to succeed to the father, and not to his relations.

3. Per adrogationem.

For example, one Roman could adopt the son of another.

The son accept of him as a father. They had it in their power to adrogate any free man.

Bastards were considered as free men. If they were willing to accept might be adrogated as such.

4. Per [re]scriptum principis

This was much the same with letters of legitimation.

5. Per testamentum

by which they probably succeeded only to their father’s estate.

The canon law introduced the subsequens matrimonium into all countries but England.

The English clergy were then1 unpopular because they joined the king against the barons. So in England, the subsequens matrimonium never could be legitimate.

• If ever it were legitimate, the canon law made some restrictions which were not implemented in 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.

The disabilities and incapacities of illegitimate children can only have an effect where monogamy prevails.

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 lawful marriage.

To have a wife entirely in their power, and to take others when they please, would be more convenient.