CHAP. III. ¶ Of the power of an Husband over his Wife, as also of the mutuall duties betwixt them: and whether it be expedient to renew the law of divorcement or not.

ALL assemblies of men lawfully joyned together, whether they be Families, Colledges, Universities, or Commonweals, are kept together and preserved by the mutuall duties of commanding and obeying: for as much as that libertie which nature hath given unto every one to live at his owne pleasure, bound within no lawes, is yet subject unto the rule and power of some other. All which power to commaund over others, is eitherThe division of power and commaund. publick or privat: The power publick, is either free from law, as is theirs which hold the chiefest place of soveraigntie; or els restrained by law, as is the power of the Magistrats, who although they commaund over privat men, are yet themselves subject unto the commaunds and laws of others their superiours. The power privat, consisteth either in the heads of families, or in corporations, or colledges, where all by a generall consent, or the greater part, commaundeth over the rest. But the domesticall Domesticall power of foure sorts. power is of foure sorts: viz. The power of the Husband over his Wife, the power of the Father over his children, the power of the Lord over his slaves, and the power of the head of a Familie over his mercenarie servants. And for as much as the right and lawfull government of everie Commonweale, Corporation, Colledge, Societie, and Familie dependeth of the due knowledge of commaunding and obeying; let us now speake of every part of commaunding in such order as is by us before set downe. For naturall libertie is such, as for a man next unto God not to be subiect to any man living, neither to suffer the commaund of any other than of himselfe; that is to say, of Reason, which is alwaies conformable unto the will of God. This naturall commaundementThe first & greatest commaund is the commaund of Reason over our affections, & so over our selves. of Reason over our affections and desires, is the first, the greatest and most antient that is: for before that one can well commaund over others, hee must first learne to commaund himselfe, giving unto Reason the soveraigntie of commaund; and unto his affections obedience: so shall it come to passe that everie one shall have that which of right unto him belongeth, which is the first and fairest justice that is; and that where of the common Hebrew proverb grew, That every mans charitie should first begin of himselfe: which is no other thing than to keepe our affections obedient unto Reason. This is the first law of naturall commaund, which God by his expresse commaundement Gen. cap. 2. established, as we see in the speech which God had both unto her that was the first Gen. cap. 3 mother of us all; as also against him who first defiled himself with his brothers bloud Gen. cap. 4. For that commaund which he had before given the Husband and his Wife, is two wayes to be understood; first literally for the power the Husband hath over his Wife, and then morally for the commaund the soule hath over the bodie, and reason over affection. For that reasonable part of understanding, is in man as the Husband; and Affection, as the Woman: For before God had created Eva, it was said of Adam, Male and female created he them Gen. cap. 1.. Wherefore the woman in holy writ is oftentimes taken for affection: but never more than with Salomon, who so lived as a man unto women most kind; but so writ, as if he had bene unto them a sworne enemie, whereas he thought nothing lesse, all that his speech being to bee understood of mans unreasonable desires, as well declareth the wise and grave Rabbin Maymon Rabbi Maymon. lib. x. nemore.. But leave we the morall discourse unto Philosophers and Divines to dispute of, and let us take that which belongeth unto civill policie, and speake of the power the Husband hath over the Wife, as proper unto this our question. By the name of a Wife I understand a just and lawfull Wife, and not concubine, which is not in the power of him that keepeth her; albeit that the Roman lawes call it mariage, and not concubinage,A man hath no power over his Concubine, or her that is but unto him betrothed. if the concubine be franke and free: which all nations have of good right rejected, and as it were by secret consent abrogated, as a thing dishonest and of evill example. Neither doth this power that the Husband hath over his Wife extend unto her that is but betrothed, upon whome the betrothed man may not lay his hand; which hath ever bene lawful unto the Husband, both by the Civil and Canon law: yea if the betrothed man shall lay violent hand, or force her that is to him affianced or betrothed, he shall therefore by right suffer capitall punishment. But what if by consent of the man and of the woman, contract of mariage be made by words of the present time, before they know one another; for that, the law calleth just marriage: I am for all that of opinion the power of an Husband not to be yet gotten by such a contract, except the Wife have followed her Husband: for as much as by the decrees of the Divines and Canonists (whose authoritie is in this matter the greatest) as often as question is made of the right of mariages, scarce any regard is had of such mariages betwixt man and wife, except it be of fact consumat, by the mutuall conjunction of their bodies; which by the consent of many nations is expresly received, as often as question is made of enjoying of such commodities as are to be gained by mariage. But after that lawful conjunction How the Husband sometimes hath not of right power over his Wife, and why. of man and wife (which we have spoken of) the Wife is in the power of her Husband, except he be a slave, or the sonne of the maister of the Familie, who have no authoritie over their wives, & much lesse over their children; which although their married father were manumised, should yet fall into the power of their grandfather. The reason whereof is, for that a Familie should have but one head, one maister, and one Lord: whereas otherwise if it should have many heads, their commaunds would be contrarie, one forbidding what another commandeth, to the continuall disturbance of the whole familie. And therefore the woman by condition free, marrying her selfe unto the maister of the families sonne, is in the power of her father in law, as is also the free man marrying himselfe unto the maister of the families daughter, in the power of another man if he go to dwell in the house of his Father in law: albeit that in all other things he enioy his right and libertie. Neither seemeth it a thing reasonable, that is by the Roman laws ordained, That the married daughter, except she be before by her Father set at libertie, although she have forsaken his house and dwell with her Husband, shall not yet for all that be in the power of her Husband, but of her father: A thing contrary unto the law of nature, which willeth, That every man shuld be maister of his owne house, (as saith Homer) to the end that he may be a law unto his familie: and repugnant also unto the law of God, which commaundeth the Wife to forsake father and mother to follow her Husband; and also giveth power unto the Husband to confirme or breake the vowes of his Wife. Wherefore that law of the Romans is* Numeri. 3. worthily abrogated, and especially with us: for that the custome generally exempteth the married woman out of the power of her father; as was likewise in the Lacedemonian Commonweale, as Plutarch writeth, where the married woman saith thus; When I was a daughter I did the commaund of my father, but since that I am married, it is my Husband to whome I owe mine obeysance: for otherwise the wife might tread under foot the commaundement of her Husband, and acquit her selfe when shee saw good under the guard of her father. Now the interpretors of this Roman law have used many cautions to avoid the absurdities and inconveniences following, if the wife should not be subiect to her husband, untill she were set at libertie by her father. Yet in that point the lawes of all people agree with the lawes of God and nature, ThatThe wife by all the lawes of God and man bound to obey her husband. the wife ought to be obedient unto her husband, and not to refuse his commaunds not repugnant unto honestie. One Italian Doctor there is of opinion, That the wife is not in the power of her husband: but for that of his assertion so singuler and absurd, hee hath brought neither reason nor authoritie, there hath bene none so fond to follow the same. For it is certaine by the law of Romulus, that the husband had not onely the commaund of his wife, but also power of life and death over her, in foure cases, without Foure cases wherin a man by Romulus his law had power of life and death over his wife. any forme of judiciall processe against her: that is to wit, for Adulterie, for suborning of a child, for counterfeiting of false keyes, and for drinking of wine. Howbeit the rigor of those lawes were by the kindnesse of husbands by little and little moderated, and the punishment of adulterie committed to the discretion of the parents of the wife: which began to be renewed & again put in practise in the time of Tiberius the Emperour; for that the husband putting away his wife for adulterie, or himselfe attainted* Tacitus lib. 2 with the same crime, the offence remained unpunished, not without the great reproach of their kindred, who in auncient time (after the manner of the Romans) punished the adulterous women with death, or with exile. And albeit that the power of the husband over his wife was much diminished, yet neverthelesse by the oration Livi. lib. 33. which Marcus Cato the Censor made unto the people in defence of the law Oppia (which tooke from women their habilliments of collours, and forbad them to weare above one ounce of gold) it appeareth that the women were al their lives in the government of their fathers, their brethren, their husbands, & next kinsmen, in such sort, as that without their leave or authoritie, they could make no contract, or yet doe any lawfull act. This Cato the Censor flourished about 550 yeares after the lawes of Romulus: and 200 years after, Ulpian the Lawyer writeth, That Tutors and Governers were wont to be given to women and orphans; but when they were married, that then they were in the hand of the man, that is to say in the power of the husband. And if any should say That he divided the title of persons that are in the power of others, from them that are in the power of others; it followeth not thereof that wives were in the power of their husbands, but was by him so done, to show the difference of power the husband hath over his wife, the father over his children, and the lord over his slaves. And what doubt is there but that this word Hand, signifieth oftentimes power and authoritie? the Hebrews, Greeks, & Latines, having alwaies so used it, as when they say, The hand of the King; and, To come into the hand of the enemie. And Festus Pompeius, speaking of the husband bringing home his wife, useth the word Mancipare, a word proper unto slaves: which word we yet use in many our customes and lawes, where question is of the emancipating of women. But to make it plaine, this power of husbands over their wives to have bene common unto all people, we will by two or three examples declare the same. Olorus King of Thracia compelled the Dacians overcome by their Justin. lib. 32. enemies, to serve their wives, in token of extreame servitude, & of the greatest reproach that he could devise to doe them. We read also that by the lawes of the Lombards the woman was in the same subjection that the auntient Romans were, and that the husbands had all power of life and death over their wives, which they yet used in the time of Baldus, not yet 260. yeares ago. And not to seeke farther, what people had ever so great power over their wives as had our auncestors? The French men (saith Lib. 6. Belli Gallici. Caesar) have power of life and death over their wives and children, in like manner as over their slaves: and beeing never so little suspected to have wrought their husbands death, are to be tortured by their owne kinsmen, and being found guiltie are by them to be cruelly executed, without any further authoritie from the Magistrat. But for That it was lawfull for a man to kill his wife for drinking of wine drinking of wine it was much more manifest that it was cause sufficient by the Roman lawes for the husband to put his wife to death; wherein all the Dion. Halic. lib. 2. Plin. li. 14 cap. 13. Valer. de instit. antiq. auntient writers agree; which was not only the custome of the Romans, but also (as Theophrastus writeth) of the auntient inhabitants of Marseiles in Province, and the Milesians, who used the same law against their wives that had drunke wine, judging that the disordered desires of the woman subject to wine, would also make her drunke, and so afterwardsCicero de nat. lib. 3. & de Repub. lib. 1. Plu. in Problem. Rom. cap. 6. Arnob. lib. 2. adversus gentes. Tertul in Apolog. cap. 6. Gellius lib. 10 cap. 23. & Alcimus Siculus apud Athenaeum. an adultresse. We also find that the power given unto the husband by the law of Romulus, To put his wife to death for adulterie, without the authoritie of the Magistrat was common to all Greece, as well as to the Romans. For the law of Julia which gave leave onely unto the father to kill his daughter together with the adulterer, being taken in the deed doing, and not otherwise, was made by Augustus the Emperour above seven hundred yeares after the law of Romulus: And yet by the same law it was permitted unto certaine persons to do the same that the father might, against their adulterous wives: a right small punishment being appointed for the husband, who besides the persons in the law excepted, had killed the adulterours taken in the fact. But the publick punishment of adulterie derogateth nothing from the power of the husband, in other The punishment of wives for adulterie. sorts of corrections over his wife, not extending unto death, which is unto husbands forbidden. After that Theodora the Empresse having got the maisterie over Iustinian the Emperour her husband, a blockish and unlearned Prince, when she had made al the lawes she could for the advantage of women against their husbands; she amongst others also changed the paine of death for adulterie, into the note of infamie: as did also in auntient time the Athenians, excommunicating the adulterors, with the note also of infamie, as we read in the Pleas of Demosthenes: which seemeth but a thing ridiculous, considering that the note of infamie cannot take any honour from her which hath already lost the same, and is altogether defamed: for that upon the matter she remaineth altogether unpunished, & that for such a crime as the law of God Levit. 20. Daniel 12. Deu 24 punisheth with the most rigorous death that then was, (that is to say with stoning) and which the auntient Ægyptians punished at the least with cutting off the nose of the woman, and the mans privities. But in other crimes which more concerned the husband than the publicke state, and deserved not death, power is by the consent of all men given unto the husband to chastice his wife, so that it be sparingly done, and within measure. And to the end that husbands should not abuse the power the law gave them over their wives, they had an action against their husbands, in case of evill entreatment, or froward usage; which was afterward by the law of Iustinian taken away, and a penaltie decreed against them that had given the cause of the seperation: which were especially grounded upon adulterie; and poisoning attempted, but not having taken effect. Yet notwithstanding the decree of Iustinian, it is by our custome permitted unto the wife wronged or evill entreated by her husband, to require seperation. And yet for all that is no action of iniurie to be suffered betwixt the husband and the wife (as some No action of injurie to be admitted betwixt a man & his wife, and why. would have it) and that for the honour and dignitie of marriage; which the law hath had in so great regard, that it permitteth not the husband, or any third man to have an action of felonie against the wife, although she have embeseled or purloyned all her The hatred betwixt man and wife of all others most deadly. husbands moveables. But as no love is greater than that of marriage, (as saith Artemidorus) so is the hatred of all others most deadly, if it once take root betwixt man and wife; as was well declared by Leo Embassadour from them of Bizance unto the Athenians, whome when they in a great assembly had laughed to scorne for his small stature, Why (said he) do you laugh at me a dwarfe, seeing my wife is much lesse than my selfe, and scarce so high as my knee; who pleased, although wee lie in a verie little bed, yet falling out the one with the other, the great Citie of Constantinople is too little for us two? Which his pleasant speech served wel to the matter he had in hand, which was to persuade the Athenians unto peace; which is not easie to doe betwixt the husband and the wife, especially if one of them hath once sought after the life of the other. And for that cause the law of God concerning divorcement (which was afterwardsDivorcement by the law of God allowed. common to all people, and yet at this present is used in Affrick, and in all the east) gave leave to the husband to put away his wife, if she pleased him not, with charge that he might never take her againe, and yet might well marrie another; which was a meane to keepe the insolent wives in subjection, as also to represse the anger of the wayward husbands; for what woman (except she were an arrant whore) would bee so desirous of a man, as to marry an husband that without any just or probable cause had put away his wife. Now if it shall seeme to any an unreasonable thing, to bee lawfull for a man to put away his wife, for no other cause but for that hee liketh her not, I will not greatly strive, either therefore depart from the law now with us in use. Yet nothing seemeth unto me more pernitious, than to constraine the parties so in dislike to live together (except they will) to declare the cause of the divorcement they desire,Whether in divorcement it be better to expressethe cause thereof, or to have the same concealed. & also wel prove the same before the Judge: For in so doing, the honor of the one or of both the parties is hazarded, which should not so be if neither of them were enforced to prove the cause of the divorce unto the Judge. As did in auncient time the Hebrews, and yet do at this present also, as we see in their Pandects, where is described the lawful act of divorcement, & the bil of divorcement which Rabi Ieïel of Paris gave unto his wife the xxix. of Octob. in the yere from the creation of the world 5018In the yeare of Christ 1240.. Another example thereof is also extant in the Epitome of the Hebrew Pandects, collected by the Lawyer Moyses de Maymon in Chaldea, where the Judge of the place having seene the special procuration, & the act of him that had put away his wife in the presence of three witnesses, adjoyneth thereunto these words, That he did purely and simply divorce her, and without any cause showing, giving them both leave to marry whome they should see good. In which doing the woman was not dishonoured, but might with safe reputation marrie with another sortable to her owne qualitie. And albeit that the Athenians admitted no divorcement, except the cause were first proved before the Judges, yet seemed it to all good men to be a thing of great daunger, insomuch that Plut. in Alci. Alcibiades fearing the publick scandall tooke his wife openly complaining before the Judges, and carried her away home upon his shoulders. More indifferently delt the auncient Romans, in joyning no cause at all unto the bill of divorcement: as is to be seene when Paulus Æmilius put away his wife, whome he confessed to be very wise,* Plut. in Aemi. honest; and nobly descended; and by whom he had also many faire children: but when his wives friends complaining unto him, would needs know of him the cause of the divorce, he showed them his shoo, which was very handsomly and well made; and yet said he, none of you but my selfe feeleth where this shoo wringeth mee. But what if the cause seeme not sufficient unto the Judge? or be not well proved? is it therefore meet to enforce the parties to live together, in that societie which is of all other the straitest, having alwaies the one the other the obiect of their griefs stil before their eies. Truly I am not of that opinion: for seeing themselves brought into extreame servitude,Divorcement necessarie. feare, and perpetuall discord, hereof ensue adulteries, and oftentimes murthers and poysonings, for the most part to men unknowne; as it was discovered in Rome, before the law of divorcement (first made by Spurius Carvilius, about 500. yeares after the foundation of the citie) a woman being apprehended and convicted for poysoning her husband, accused other her companions in the fact, who afterward by mutuall accusations appeached seventie others of the same crime for poysoning their husbands, who were all therefore executed: which how much the more is it to bee feared where divorcements are altogether forbidden? For both the Greek and the Roman Emperours, willing to take away the often use and easinesse of divorcements, and to amend the auncient custome, ordained no other penaltie than the losse of the dowry, or of the other matrimonial conventions, unto the partie that shuld be the cause of the divorce. Anastasius also suffered divorcement, by consent of both parties, to bee made without any penaltie or punishment: which was by Justinian the Emperour, or rather Theodora his wife forbidden. Now of that which we have alreadie said, every man as I suppose, may of himselfe judge which is most expedient for a Commonweale.

But what change or varietie of lawes soever in such diversitie of Commonweals, there was never law or custome that exempted the wife from the obeysance, and not onely from the obeysance, but also from the reverence that shee oweth unto her husband; in such sort that the law permitteth not the wife to sue her husband without the leave of the Magistrat. But as nothing is greater, better, or more necessarie for the preservation not of Families only, but of Commonweals also, than the honest obedience of wives towards their husbands, as saith Euripides: so beseemeth it not the husband under the shadow of this power, to make a slave of his wife. And wheras Marcus Varro Wives to be corrected rather with words then with stripes. is of opinion that slaves ought rather to be corrected with words than with stripes; much more ought the wife to be, whom both God and mans law doth call his housefellow. So Homer bringing in Iupiter reproving his wife Iuno, and seeing her rebellions, useth great threats, but proceedeth unto no further extremities. And Cato commonly reputed to be a sworne enemie unto women, did never beat his wife, reputing that to be as it were a sacrilege; but used so to maintaine the power and dignitie of a husband, as that he had his wife alwaies at commaund: which he shal never do which of a maister is become her companion, & afterward her servant, & of a servant her very slave. As was of old obiected unto the Lacedemonians, who called their wives their Plut. in Laconicis. Ladies and Mistresses: which the Romans did also, not the privat men only, but even Arist. lib. 2. Politic. their Emperors themselves, in the declination of their Empire; who at length together with their domesticall government lost also their publick soveraigntie. Albeit thatTranquillus in Claudio. such women as take pleasure in commaunding their effeminat husbands, are like unto them that had rather to guide the blind, than to follow the wise and cleere sighted.

Now the law of God, and the holy tongue, which hath named all things accordingThe authoritie and power of the husband over his wife. to the true nature and proprietie thereof, calleth the husband Bahal, that is to say, Lord and maister; to show that unto him belongeth the soveraigntie to commaund. The lawes also of all nations, to abate the pride of women, and to make men know that they ought to excell their wives in wisedome and vertue, have ordained that the honor and glorie of the wife should depend of her husband, as of the Sunne: in such sort that if the husband be noble, he enobleth his base wife; but if the wife beeing nobly borne marry a man of base degree, shee looseth her nobilitie, albeit that of auncient time there have bene many and yet are, which take their nobilitie and gentrie from their mothers, and not from their fathers; as the Lycians, the Delphiens, the Xanthiques, the Ilienses, and the Capadocians: whether it were for the uncertaintie of their fathers, or for that they had lost all their nobilitie in the warres; as in Campagne; where the wives (for the cause aforesaid) ennoble their base husbands and their children; as also among the Indians in Calecut, the kings even yet, and the Nobilitie which they call Naires have scarce at any time their owne children inheritors of their kingdome or goods, but the children of noble women although they be bastards: yet for all that the interpretors of the law hold, that it ought not so to be done either by custome or decrees; for the generall agreement of almost all people to the contrarie, as Herodotus hath long ago written. And therefore it is most right that the wife should follow the Condition, Countrie, Familie, Dwelling, and beginning of her husband: and in case that her husband be an exiled or banished man, yet is the wife bound to follow him, wherein all the interpretors both of the Canon and Civill law agree. All lawes and customes also have made the husband maister of his wives actions, and to take the profit of all the lands and goods that to her befall: and suffer not the wife to stand in judgement either as plaintive or defendant, without the authoritie of her husband; or at least without the authoritie of the Judge who may give her authoritie so to do in the absence of her husband, or he refusing so to doe. All undoubtfull arguments to shew the authoritie, power, and commaund that the husband hath over his wife, by the lawes both of God and man: as also of the subjection, reverence, and obedience which the woman oweth unto her husband, in all honour and things lawfull. Yet I doubt not, but that women in their matrimoniall contracts have sometimes used to covenant not to be in any thing subject unto their husbands: but for as much as such covenants and agreements are contrarie to the lawes both of God and man, as also unto publick honestie, they are not to bee observed and kept, in such sort, as that no man can thereunto to be bound by oath.