The Law of War and Peace (1625)
by Hugo Grotius
On the Original Acquisition of Rights Over Persons
I. Concerning the rights of parents over children.
A RIGHT is acquired not only over things but also over persons. Such rights have their origin primarily in generation, consent, or crime.
By generation parents acquire a right over children both parents, I mean, the father and the mother. But if there is variance in the exercise of these rights the right of the father is given preference on account of the superiority of sex.
II. Distinction in respect to the period of infancy, and concerning the ownership of property by infants.
1. Moreover in dealing with children three periods must be distinguished. The first is that ‘of imperfect judgement,’ as Aristotle calls it, while there is lack of ‘discretion,’ as the same author elsewhere says. The second is the period of mature judgement, but while the son still remains a part of the family of the parents, that is ‘so long as he has not separated from it,’ as Aristotle says. The third is the period after the son has withdrawn from the family.
In the first period all the actions of children are under the control of the parents; for it is fair that he who is not able to rule himself be ruled by another. Such is the saying of Aeschylus:
- The age of infancy, like the dumb brutes,
Requires another’s mind to bring it up.
But naturally no one except the parents can be found to whom such control may be committed.
2. Nevertheless in this period also a son or a daughter, according to universal customary law, is capable of ownership of property, though the exercise of the right is hindered on account of the imperfection of judgement which I have mentioned. As Plutarch says of children, they have the right ‘to possess’ but not ‘to use.’ Wherefore it is not due to natural right that all the possessions of children are acquired by their parents, but to the laws of certain peoples, which also in this matter distinguish the father from the mother, sons not of age from those that are of age, and illegitimate children from legitimate. But nature ignores these distinctions, except as regards that supremacy of sex which I have mentioned, in case of conflict of the parents regarding the exercise of parental rights.
III. Of the period of life in the family beyond infancy.
In the second period, when judgement has now matured with age, no other actions are subject to the rule of parents except those which in some way are. important for the position of the family in relation to the father or the mother. It is in fact fair that the part should conform to the interest of the whole.
In other actions, then, children in that period have ‘power,’ that is, a moral faculty of action; but nevertheless in those acts they are bound to desire always to please their parents. However, since this obligation does not arise from the moral faculty, as in the previous case, but from filial affection, respect, and gratitude, it does not make void anything done contrary to it, just as the donation of anything which has been made by the owner contrary to the rules of economy is not void.
IV. Concerning the right of restraining children.
In both these periods the right to govern embraces also the right to chastise, in so far as children must be forced to do their duty, or must be corrected.
There will elsewhere be an opportunity of discussing what ought to be thought in regard to severer punishments.
V. Concerning the right of selling children.
Although the paternal authority is so attached to the person and ‘character’ of the father that it cannot be taken away and transferred to another, nevertheless by natural right a father can pledge his son as security, if the civil law does not prevent, and can even sell him if it is necessary and there is available no other means of supporting him.
This legal provision, which arose from an ancient law of the Thebans (this Aelian quotes in his second book), seems to have passed to other peoples also. Further, the Theban law itself seems to have come from the Phoenicians, and before that from the Jews. Apollonius in his letter to Domitian relates that the same right prevailed among the Phrygians. Indeed nature herself is deemed to give the right to everything without which that cannot be obtained which she demands.
VI. Of the period of life beyond infancy and outside of the family.
In the third period, though filial affection and respect are always due, since the cause remains, yet the son is in all things ‘independent’ and his own master.
From this it follows that the acts of kings cannot be said to be void on this account, because they have parents.
VII. Distinction between the power of parents by the law of nature and that by the municipal law.
Whatever powers there are beyond those mentioned arise from volitional law, which is different in different countries. Thus by the law which God gave to the Jews the father’s power over a son or a daughter to annul vows was not perpetual, but lasted only so long as the children were members of the father’s household. Again, Roman citizens possessed a special power of the father even over sons who were the heads of families of their own, so long as they had not been emancipated. The Romans themselves in fact claimed that other peoples did not have such power over their children.
In the third book of his Pyrrhoneia, Sextus Empiricus says:
The Roman lawgivers have ordained that children should be in the power of their fathers as if slaves, and that the children should not have control of their own property, but that this should remain in the hands of their parents until the children should be manumitted, in the same manner as slaves. But such authority other peoples reject as tyrannical.
Simplicius in the commentary on the Manual of Epictetus says:
The ancient laws of the Romans, having regard not only to that superiority which arises from nature, but also to the labors which parents sustain for their children, and wishing besides that children be without exception subject to their parents, and, as I believe, trusting also in the natural love of parents, have given to parents the right of selling their children, if they wish, and of killing them without punishment.
A similar right of the father among the Persians Aristotle indicts as tyrannical. These laws we report for this reason that we may distinguish accurately between municipal law and the law of nature.
VIII. Concerning the right of the husband over the wife.
1. Rights which arise over persons from consent come either from association or from subjection.
The most natural association appears in marriage. However, on account of the difference in sex the authority is not held in common, but ‘the husband is the head of the wife,’ of course in matters relating to marriage and in matters relating to the family. The wife, in fact, becomes a member of the husband’s family, and so the husband has the right to determine matters of domicile.
If any right beyond these is conceded to husbands, as in Hebraic law the right to annul vows of the wife, and among some peoples the right of selling the wife’s property, such a right does not come from nature but from enactment. This subject requires us to see what the nature of marriage is.
2. Marriage, then, according to the law of nature we consider such a cohabitation of a man with a woman that it places the woman under the eye of the man and under his guardianship. Such a union it is in fact possible to see even in some kinds of dumb animals. But in the case of man, as an animate being endowed with reason, there is added to this the vow by which the woman binds herself to the man.
IX. Whether denial of divorce and restriction to one woman are necessary to marriage according to the law of nature or only according to the law of the Gospel.
1. Nature does not seem to require anything more in order to constitute a marriage, nor indeed does the divine law seem to have demanded anything further before the spread of the Gospel. For both men who were holy before the law had more than one wife, and in the law certain precepts are given to those who have more than one wife; and the king is enjoined not to have too great a number of wives nor horses. The Jewish interpreters of the passage last referred to note that eighteen wives or concubines had been allowed the king. Also God reminds David that He had given him many and noble wives.
2. Furthermore, the method is prescribed for one who wishes to divorce a wife, and no one is hindered from marrying a divorced woman except the one who divorced her, and the priest. Nevertheless this liberty of passing to another husband ought to be so restricted by the law of nature that confusion of offspring may not arise. Hence arises that question of pontifical law in Tacitus, ‘whether a woman after conception, but before the birth of the child, might lawfully marry.’ Among the Jews it is ordered that three months intervene between the two marriages.
But the law of Christ has brought marriage between Christians, as it has other matters, to a higher norm of perfection, in that both the one who divorces a woman that is not an adulteress, and the one who marries a divorced woman, are pronounced guilty of adultery. Further, Paul, the apostle and interpreter of the law, gives not only to the husband as much right over the person of the wife as was found also in the state of nature (says Artemidorus: ‘The one joined to a woman by the laws of marriage has complete mastery of her person’), but also equal right to the wife in turn over the person of the husband. Lactantius says:
Not in fact, as the system of public law says, is the woman alone an adulteress who takes another husband, and the husband free from the charge of adultery though he has several wives; but the divine law joins the two in marriage into a single body with such equal right that whichever one has broken this union of the body by union with another is considered guilty of adultery.
3. I know that in regard to both these points the view is held by many that Christ did not establish a new law, but restored the law which God the Father had established in the beginning. They seem to have been brought to this opinion by the words of Christ Himself, where He recalls that beginning to us. But the reply can be made that from that first condition, in which God assigned only one woman to one man, that is sufficiently apparent which is best and most pleasing to God. It follows that this has always been excellent and praiseworthy. Yet it was not wrong to do otherwise, because where there is no law there is no transgression of law. There was in fact no law on that question in those times.
Thus when God said through Adam, or through Moses, that so strong was the bond of marriage that the husband ought to leave the family of his parent in order to establish a new family with his wife, he said almost the same as is said to the daughter of Pharaoh in the eleventh verse of the forty-fifth Psalm; ‘Forget also thine own people and thy father’s house.’ And from the establishment of this so close friendship it is quite apparent that it is most pleasing to God ‘that that union should be perpetual. But it is not thereby proved that God had then commanded’ that this bond should not be broken for any cause whatever. But what God had by the institution joined, Christ forbade man to sunder, taking most worthy matter for a new law from that which is best and most acceptable to God.
4. It is certain that in antiquity most peoples permitted freedom of divorce, and marriage with more than one woman. Tacitus relates that in his time the Germans, almost alone among barbarians, were content with a single wife for each; and to a similar custom the histories both of Persia and of India I in various places bear witness. Among the Egyptians a the priests alone ordinarily had but a single wife. Also among the Greeks, on the testimony of Athenaeus, Cecrops was the first who ‘assigned one wife only to each husband.’ Nevertheless we learn from the example of Socrates, and of others, that this rule was not long observed even at Athens.
If, then, any peoples have lived with greater continence, as the Romans did, who always refrained from plural marriages and for a long time from divorce, truly they have drawn near to the state which is best. Hence among the same Romans the marriage of the wife of the priest of Jupiter was not annulled except by death. Nevertheless from what has been said it does not follow that all sinned who did otherwise before the preaching of the Gospel.
X. That according to the law of nature alone marriages are not void by reason of lack of consent of the parents.
1. Now let us see what marriages are valid by the law of nature. In reaching a decision on this matter we ought to remember that not all acts which are contrary to the law of nature are rendered invalid by it, as is apparent from the example of the extravagant gift; but only those are invalid in which the essential point is lacking to give validity to the act, or in which the fault continues in the result,.of the action. The essential principle, both here and in other human acts, out of which right arises, is that right which we have explained as a moral capacity for action, joined with a will sufficiently free. But what freedom of will is sufficient to produce validity of action will be more conveniently discussed below, where we shall treat of promises in general.
Under the moral right of action, the question here arises concerning the consent of the parents, which certain writers require as. if by the law of nature for the validity of marriage. But in this they are wrong. For the arguments they offer prove nothing else than that it is in accord with the duty of children to obtain the consent of their parents. This I plainly grant, with the proviso that the wish of the parents be not manifestly unfair. For if children owe respect to their parents in all things, certainly they owe it especially in a matter which concerns the whole family, as marriage does. But from this it does not follow that the son lacks that right which is characterized as faculty or power to act. For a man who takes a wife ought to be of mature age, and since he withdraws from the family, he is not subject to family rule in this matter. Moreover, the duty of proper respect alone has not the effect of rendering of no effect an act opposed to it.
2. Moreover, the rule established by the Romans, and some other peoples, that certain marriages are void because the consent of the father is lacking, is not derived from the law of nature, but from the will of the lawgivers. For in the same law the mother, who is nevertheless naturally entitled to respect from the children, does not make the marriage void by withholding consent; and not even the father of a son freed from parental control has that power. Besides, if the father himself is under the power of his father, both the grandfather and the father should give consent to the marriage of the son. For a daughter the authority of the grandfather suffices. These distinctions, unknown to the law of nature, show clearly enough that the practices in question have arisen from the civil law.
3. In the Scriptures, to be sure, we see that holy men, and in even more cases women, have followed parental authority in contracting marriage (to women indeed, on account of modesty, it is especially fitting to act on another’s authority in this matter, wherefore also that is in point which we read concerning the marriage of a maiden in the First Epistle to the Corinthians); nevertheless the marriage of Esau is not declared void, nor the children illegitimate, because he had contracted marriage without such authority. Quintilian, having in mind the law of nature in a strict sense, says: ‘But if a son is ever allowed against the will of the father to do anything which in other respects shall not deserve blame, nowhere indeed is that freedom so necessary as in respect to marriage.’
XI. That according to the law of the Gospel marriages with the husband or wife of another are void.
Marriage with a woman who is married to another is undoubtedly void according to the law of nature, unless the former husband has divorced her; for up to the time of divorce his right over her continues; according to the law of Christ, his right continues until death has severed the bond. The marriage is void for this reason, that the moral faculty is lacking; this was taken away by the former marriage, and all the results are faulty. The individual acts in fact involve an unlawful appropriation of that which belongs to another.
On the other hand, according to the law of Christ a marriage with a man already married to another woman is void on account of the right which Christ gave to a virtuous woman over her husband.
XII. That according to the law of nature marriages of parents with children are unlawful and void.
1. The marriage of those who are united by blood or by relationships of marriage presents a difficult question, which not infrequently gives rise to heated discussions. For if one tries to assign definite natural causes why such marriages are unlawful just as they are forbidden by laws or customs he will learn from experience how difficult, if not impossible, the task is.
For the reason suggested by Plutarch in his Roman Questions, and accepted by Augustine in the City of God (Book XV, chapter xvi), that friendships are extended more widely by contracting marriage alliances in many places, is not of so great weight that anything contrary to it would have to be considered void and unlawful. That which is less advantageous is not in fact thereby also illegal.
Add a situation which may arise. This lesser advantage may be offset by another greater advantage, not merely in the case of which God made an exception in the law given to the Jews, where a man has died without offspring; or in the similar provision, which was established by the Hebraic and the Attic law with reference to maidens who are sole heiresses, which they call epiklhroi, for the purpose of keeping ancestral estates in the family; but also in many other cases, which are commonly observed, or can be imagined.
2. From this general principle I except the marriage of parents of any degree with their descendants, the reason for the unlawfulness of which is, unless I am mistaken, quite apparent. In such a case the husband, who by the law of marriage is the superior, cannot show such respect to his mother as nature demands, nor the daughter to her father; for although the daughter in the marriage relation is inferior, nevertheless marriage itself introduces such an association that it excludes the respect belonging to the former relationship.
When Paul the jurist had said that in contracting marriages regard should be had for the law of nature and modesty, he well added that it was contrary to modesty to marry one’s own daughter. Therefore we must not doubt that such marriages are both unlawful and void, because the fault inheres permanently in the effect.
3. Neither ought we to be disturbed by the argument of Diogenes and Chrysippus drawn from poultry and other dumb creatures, by which they tried to prove that such unions were not contrary to the law of nature. For, as I have said at the beginning of this work, it is sufficient for a thing to be considered unlawful if it is opposed to human nature; and in this category is incest, which, as Paul the jurist has written, is by universal customary law a crime committed between parents and descendants. Such is that law which Xenophon said was not less a law because it was held in contempt by the Persians.
According to the commentary of Michael of Ephesus On Nicomachean Ethics, that in fact is rightly said to be in accord with nature ‘which is the practice of most peoples that are uncorrupted and live according to nature.’ Hippodamus the Pythagoraean speaks of ‘unrestrained and unnatural desires, mad impulses, abominable pleasures.’ Lucan says of the Parthians:
- With feastings mad, and wine,
The royal house shrinks not from lawless matings.
And later he adds:
- For one who shares a mother’s bed,
What should I think a crime?
Dio of Prusa in his twentieth Oration wisely assigns a faulty education as the particular cause of this Persian custom.
4. In this connection we may well be surprised at the comment of Socrates. According to Xenophon, he found nothing blameworthy in such marriages except the disparity of age; for from that cause, he says, either sterility or deformity of offspring results. If this in fact were the only reason opposed to such a marriage, the marriage would surely not be void or unlawful, any more than a marriage between other persons, one of whom is as much older than the other as parents ordinarily are older than children.
5. This point ought rather to be discussed, whether, in addition to that which, as we have already said, can be attained to by reason, there does not exist, implanted in men who have not been corrupted by evil education, a kind of revulsion against unions with parents or with children, especially since such unions are naturally avoided by certain dumb animals. So in fact others have thought, and so Arnobius says in his fifth book Against the Heathen:
Did Jupiter even conceive an unspeakable lust for his mother, and could not be turned from the burning passion of such a desire by the horror which nature herself has implanted not in men alone but also in some animals, and by that universal inborn feeling?
On this topic in the ninth book of Aristotle’s History of Animals (chapter xlvi) there is a noteworthy story about a camel and a Scythian horse. A similar report appears in Oppian, On Hunting (Book 2). Seneca says in his Hippolytus:
- And likewise beasts themselves avoid the crimes of lust,
And shame unwilling keeps the laws of blood.
XIII. That marriages of brothers with sisters, mothers-in-law with sons-in-law, fathers-in-law with daughters-in-law, and other similar marriages are unlawful and void by volitional divine law.
1. Next comes the question concerning all the different degrees of marriage and of blood relationship in collateral lines, particularly those which are expressly mentioned in the eighteenth chapter of Leviticus. For even granted that those prohibitions do not come from the pure law of nature, nevertheless they may seem, by a command of the divine will, to have passed over into that which is forbidden. In truth this command is such that it binds not only the Jews, but rather all men, as seems to be inferred from the following words of God to Moses: ‘Defile not ye yourselves in any of these things; for in all these the nations are defiled which I cast out from before you.’ Later come the words: ‘And ye shall not do any of these abominations; for all these have the men of the land done, that ‘were before you, and the land is defiled.’
2. For if the Canaanites and their neighbors sinned in committing such acts, it follows that some law had preceded. And since such a law is not purely natural, the alternative is that it was given by God, either to those people in particular, which is not probable nor sufficiently supported by the words, or to the human race, either at the creation, or at the restoration after the flood.
Now those laws which were given to the whole human race do not seem to have been annulled by Christ, but merely those laws which separated the Jews from other nations as if by an interposed wall. An additional point is that Paul severely reproves the marriage of a step-son with a step-mother, although no particular teaching of Christ on that question exists; and he does not use any other argument than this, that such union seems impure even to heathen peoples.”
The truth of the last statement is shown by other facts and also by the laws of Charondas, which brand such a marriage with disgrace. There is also this statement in an oration of Lysias: ‘That most impure of all men was husband of mother and daughter.’ Consistent with this, in a not dissimilar case, is the statement of Cicero in the speech For Aulus Cluentius; for having stated that a mother-in-law had married her son-in-law, he adds: ‘so incredible crime of a woman, unheard of in all the life of man except in the case of this one woman!’ When King Seleucus gave his wife Stratonice in marriage to his son Antiochus, according to Plutarch, he feared that she might be offended ‘at the unlawful act.’ There is also the verse of Virgil:
- Daring to pollute his own stepmother’s bed
If this common opinion did not have its origin in a necessary dictate of nature, the conclusion is warranted that it comes from an ancient tradition which was derived from some divine command.
3. In respect to this part of the divine law the ancient Jews are interpreters not to be despised; and Moses Maimonides, who read and with great judgement explained all their writings, says that there are two causes for the laws about marriage which have been handed down in the eighteenth chapter of Leviticus. The first cause is a kind of natural modesty, which does not permit parents to have intercourse with their own offspring, either directly or through persons closely connected by blood relationship or by marriage; and the second is, that too close association daily and unobserved of certain persons might pave the way to unchastity and adultery, if such loves could be cemented in marriage.
If we wish to adapt these two causes judiciously to those divine laws cited from Leviticus, it will easily appear that in the case of relatives by marriage who are in the direct line (not to mention parents and children now, since, as I think, the union of these is sufficiently forbidden by natural reason without a formulated law), and likewise in blood-relationship of the first degree in collateral lines, which is usually called the second degree because of origin from a common stock, the first cause has weight on account of the very recent likeness of the parents in the children; and such avoidance comes from the fact that, if nature does not order it, she certainly calls it more honorable. Many things of this kind furnish subject-matter for divine and human laws.
4. Consequently the Jews wish to include in the direct line the degrees not mentioned in the law, on account of the apparent identity of reason. The following are the designations of degrees among them: the mother’s mother, the mother of the mother’s father, the father’s mother, the mother of the father’s father, the wife of the father’s father, the wife of the mother’s father, the son’s daughter-in-law, the daughter-in-law of the son’s son, the daughter’s daughter-in-law, the daughter of the son’s daughter, the daughter of the son’s son the daughter of the daughter’s daughter, the daughter of the daughter’s son, the daughter of the wife’s son’s daughter, the daughter of the wife’s daughter’s daughter, the mother of the wife’s father’s mother, the mother of the wife’s mother’s father, that is, to use the Roman terms, all grandmothers and great-grandmothers, stepmothers’ mothers, great-granddaughters, stepdaughters’ daughters, daughter-in-laws’ daughters, and mother-in-laws’ mothers; because, of course, under the title of relationship on the father’s side is included similar blood relationship, and under relationship in the first degree relationship in the second degree; and under relationship in the second degree the third degree, beyond which it is scarcely possible that controversy should arise, since if it could the same reckoning might go on to infinity.
5. Now these laws, and also the law that brothers and sisters should not marry, the Jews think were given to Adam at the same time with the laws to worship God, to administer justice, not to shed blood, not to worship false gods, not to take what is another’s; but with the condition that the laws regulating marriage should not have effect until after the human race had multiplied sufficiently, because in the very beginning this could not take place without the marriage of brothers and sisters.
And the Jews do not think that the fact that this provision was not mentioned by Moses in the proper place makes any difference. Moses considered it sufficient to have tacitly indicated it in the law itself, when he condemns foreign nations on that account. There are, in fact, many such provisions in the law, which are not given in the proper order of time, but as circumstances suggest. Hence the widely accepted opinion among the Jews, that in the law there is no first or last; that is, many things are presented in inverse order.
6. In regard to the marriage of brothers and sisters, these are the words of Michael of Ephesus On Nicomachean Ethics, Book V: ‘For a brother to marry a sister was in the beginning a matter of indifference; but since a law has been established against such unions, it makes a great deal of difference whether the law is observed or not.’ Diodorus Siculus calls it a common custom of mankind that brothers should not marry sisters, but excepts the Egyptians from the custom. Dio of Prusa makes barbarians the exception. Seneca has written: ‘We join the gods in marriage, and that too not reverently, as brothers forsooth with sisters.’ Plato in the eighth book of the Laws calls such marriages ‘least holy, and hated of deity.’
7. All these statements show that there was an ancient tradition concerning a divine law against marriages of this kind, and for that reason also we see that the word ‘impious’ is used about such marriages. Moreover, the law itself indicates x that all brothers and sisters are meant, by including both relatives on the father’s side and blood relatives of that degree in general, whether born and brought up within or without the home.
XIV. That the same objection does not seem to hold in case of marriages with relatives of a degree farther removed.
1. This plain statement seems to indicate the distinction between these and other more distant relatives. For it is forbidden to marry an aunt on the father’s side; it is not, however, forbidden to marry a brother’s daughter, where the degree of relationship is the same, and there are to be found examples of such a marriage among the Jews. Tacitus says: ‘New among us is the marriage with a brother’s daughter, but it is customary among other peoples and not forbidden by any law.’ Isaeus shows that such marriages were permitted at Athens, and likewise Plutarch, in the life of Lysias. The reason given by the Jews is that young men constantly visit the homes of grandfathers and grandmothers, or even live in them along with their aunts; but their access to the homes of brothers is less frequent, and in these they do not have the same rights.
If we accept this explanation, which seems quite consistent with reason, we shall acknowledge that, from the time when the human race began to be numerous, the law against the marriage of relatives in the direct line and with sisters has been permanently valid, and common to mankind, since it rests on a natural sense of honor. In consequence, whatever is done contrary to this law becomes void, since the defect is permanent. The other laws nevertheless are not on the same basis, since they contain a mode of prevention rather, which can be exercised in other ways.
2. Surely in the earliest canons, which are called Apostolic, the man who had married two sisters, one after the other, or ‘a niece,’ that is, the daughter of a brother or a sister, was merely excluded from the clerical office.
Further, it is not difficult to reply to what we have said concerning the sin charged against the Canaanites and the neighboring peoples. The general expression can in fact be restricted to the special points of the chapter, as intercourse of males with males, intercourse with animals, with parents, with sisters, and with the wives of others; other laws were added as ‘an outpost,’ as the Greeks say, or as an advanced line of fortifications, as the Jews say, for the defense of these main positions.
The proof that the general expression cannot be understood of the individual parts may be found in the prohibition of having two sisters in marriage at the same time. For the righteousness of Jacob, who broke that law, does not permit us to believe that this prohibition had previously been made general for the human race. The act of Amram, the father of Moses, can be added as an example; for before the times of the law he married his aunt on his father’s side. Similarly among the Greeks Diomedes and Iphidamas married maternal aunts. Alcinous married Arete, his brother’s daughter.
3. Nevertheless the early Christians acted rightly in observing, of their own accord, not only those laws which were given to all men in common but also the other laws which were written particularly for the Jewish people. They also extended the bounds of natural modesty to some degrees of relationship which were farther removed, that in this virtue, not less than in others, they might surpass the Jews.
From the canons it appears that this was done by common consent. Speaking of the marriage of first cousins among the Christians, Augustine says: ‘By custom this, which was permitted by law, rarely took place; the divine law did not forbid it, and human law had not yet forbidden it. Nevertheless, even the lawful act was avoided because of its nearness to an unlawful act.’ This extension of the bounds of natural modesty was afterward sanctioned by laws of kings and states. Thus the Code of Theodosius forbade the marriage of first cousins, and Ambrose praised the decree as righteous.
4. But it must at the same time be understood that what is forbidden by human law, if done, is not also void, unless the law has added a provision to this effect, or indicated that it will be. The sixtieth Elberic canon has this provision: ‘If anyone after the death of his wife has married her sister and she be of the faith, he is denied communion for five years.’ The provision itself indicates that the marriage bond remains. And as we have already said, according to the Apostolic canons the man who has married two sisters or a brother’s daughter is merely excluded from the clerical office.
XV. That certain marriages, which are classed by the laws as concubinage, can take place and are lawful.
1. To proceed to other topics, this observation should be made, that a certain form of concubinage is in reality a valid marriage, although it is deprived of certain effects peculiar to municipal law, or even loses certain natural effects by the hindrance of the municipal law. For example, by Roman law s cohabitation and not marriage is said to exist between a male and a female slave. Nevertheless, in such a union nothing essential to the nature of marriage is lacking; for this reason it was called ‘marriage’ in the early canons.
Similarly, concubinage and not marriage is said to exist between a free man and a slave girl. Hence this term by a kind of analogy has been extended to other unions between persons of unequal rank, as at Athens the union of a citizen and a woman of foreign birth. Hence in commenting on the verse of Virgil,
- Substituted bastard foals begot from stolen mother,
Servius explains ‘bastard’ as ignoble and obscure on the mother’s side. In the Birds of Aristophanes one who had said, ‘You are a bastard and not of noble birth,’ proves his statement by adding, ‘since you were born of a foreign woman.’ And in Aelian the word meaning ‘lawfully begotten’ is defined as ‘one whose parents are both citizens.’
2. Under these conditions in the state of nature there could be a true marriage between such persons as I have mentioned if the woman was under the husband’s protective care and had promised him fidelity. Also under the Christian law I that will be a true marriage between a male and a female slave, or between a free man and a slave woman; and much the more between a citizen and a foreign woman, or a senator and a freedwoman, if the necessary conditions according to the divine law of Christianity are present, to wit: an indissoluble union of one man with one woman, even if certain effects of the municipal law do not follow, or if effects which would otherwise naturally follow are hindered by the law.
It is in this sense that the words of the first Council of Toledo must be taken: ‘For the rest, one who has not a wife, but has a concubine in the place of a wife, should not be refused communion; provided, however, that he shall be content with the union with one woman, either wife or concubine, as he has preferred.’ On this topic add also the passage in the Constitutions of Clement (Book VIII, chapter xxxii). Pertinent in this connection is the fact that Theodosius and Valentinian call a certain kind of concubinage an unequal marriage, and, further, that it is said that from such marriage the charge of adultery may arise.
XVI. That certain marriages can be unlawfully contracted and nevertheless be valid.
1. Again, if a human law forbids that marriage be contracted between certain persons, it does not therefore follow that the marriage, if in fact contracted, will be invalid. To prohibit and to annul arc in fact two different things. For a prohibition can exert its ford: through a penalty, whether express or arbitrary; and Ulpian applies the word ‘imperfect’ to laws which forbid anything to be done, but do not annul it when done. Such was the Cincian Law, which forbade gifts above a certain limit but did not make them void when given.
2. We know that among the Romans the rule was afterward introduced by a law of Theodosius that, if a law merely prohibited some act without specifically saying that whatever was done contrary to the law ought to be without effect, nevertheless the act itself was void, without effect, and as if it had never been done of course in case the matter should come into court.
Such extension, however, does not arise from the force of the prohibition alone, but from the effect of the new law, which other peoples do not find it necessary to follow. Often, in fact, there is greater impropriety in the act than in its results; often, again, the inconveniences which result from annulment are greater than the improprieties themselves, or than the disadvantage of the act itself.
XVII. The right of the majority in associations of any kind.
Besides the most natural association of marriage there are other associations, both private and public. Public associations are formed either by a people or by peoples. All associations have this in common, however, that in those matters on account of which the association was formed the entire membership, or the majority in the name of the entire membership, may bind the individual members. In general it must be believed that it was the wish of those who united in an association that there should be some method of conducting business. But it is manifestly unfair that the majority should be ruled by the minority. Therefore, naturally, the majority has the same right as the entire body, if due exception is made of agreements and laws which prescribe the form of conducting business.
Thucydides says: ‘Whatever the majority votes has full power.’ Also Appian: ‘The majority controls both in the elections and in the courts.’ Dionysius of Halicarnassus likewise: ‘Whatever has seemed best to the majority prevails”; in another passage: ‘Whatever the majority of the votes repeals, we must conform to’; and similarly Whatever the majority votes to rescind, that controls.’ Says Aristotle: ‘The decision of the majority rules.’ Also Curtius in the tenth book: ‘Let that be valid which the majority has decided.’ Prudentius writes:
- Among the few, as numbers now were waning,
Existed in reality nor fatherland nor senate;
- Let the weak voice of the minority
Give way, and in its lesser part
In Xenophon are the words: ‘To do all things in accordance with the opinion that prevails.’
XVIII. Which opinion should prevail in case of a tie vote.
If the votes are equal, no action will be taken, because there is not sufficient weight to carry a change. For this reason, where the votes for and against are equal, the accused is considered acquitted. This right of acquittal the Greeks called the vote of Minerva, in remembrance of the story of Orestes; the subject is dealt with in tragedy by Aeschylus in the Furies, and by Euripides in the Orestes and the Electra.
Further, under such a condition the possessor of a thing retains it, as was not badly noted by the author of the Problems ascribed to Aristotle (chapter xxix). In one of the Controversies of Seneca is the statement: ‘One judge condemns, another acquits; in differences of opinion let the milder prevail.’ Thus also in dialectic the conclusion supports the side which presents the less difficulty.
XIX. What opinions should be divided and what joined.
At this point question is usually raised in regard to the combining or separating of votes. According to the pure law of nature, and again that is, if no other rules have been laid down by agreement or by statute, clearly a distinction should be made between opinions that are entirely different and those of which one contains a part of the other, so that the latter ought to be combined in whatever they agree, but the former cannot be combined.
Thus when some favor a fine of 20, others of 10, they will unite on 10 against the vote for acquittal. If, however, some vote for the death penalty, and some for banishment of the accused, these votes will not be combined, because they are different, and banishment is not included in the death penalty. But neither will those who vote for acquittal be combined with those who vote for exile, because, although they agree in not favoring the death of the accused, nevertheless this is not what the vote itself declares, and the matter is one of inference; for he who votes for banishment does not vote for acquittal.
Pliny, then, rightly said, when something of this kind happened in the senate, that the difference in the motions was so great that no count could be made except for each motion separately; and that it made little difference that senators agreed in opposing the same motion, since there was no motion on which they did agree. Polybius, again, notes that the praetor Postumius acted illegally in taking the votes, since he combined those voting for condemnation of the captive Greeks with those voting for temporary detention, as against those who voted for acquittal.
There is a question of this kind in the ninth book of Gellius, and in the work of Curius Fortunatianus, De Quantitatum, Comparatione; also in the Controversies of Quintillion the Father (ccclxv), where are the following words: ‘Now united you plainly have the more, now that very number, which, united, might do harm, you destroy the effect of by making a division in it. Two vote for exile, two for degradation. Do you desire that I unite those who separate themselves?’
XX. That the right of those who are absent accrues to those present.
This point must also be added. If any members, cannot avail themselves of their right by reason of absence or some other hindrance, their right in the meantime accrues to those present. This, too, Seneca expresses in his Controversies: ‘Suppose you are the slave of more than one master; you will serve the one who is present.’
XXI. What rank is to be observed among equals, even kings.
The natural order of rank among members of an association is the order in which they entered it. So this order is preserved among brothers, since the first born takes precedence, and so on in succession, with disregard of all other qualities. As Aristotle says, ‘Brothers in fact are equal, except as age distinguishes them.’
Theodosius and Valens in a Constitution prescribe the order of rank to be observed as between the consuls: ‘Of those holding the same official rank, who in fact ought to have precedence except the one who first attained to the rank?’ In ancient times this custom prevailed in the association of Christian kings and peoples, that in councils concerned with Christian matters those who had first accepted Christianity took precedence of the rest.
XXII. In associations which are based upon property, the votes must be counted according to the shares which each has in the property.
Yet the following must be added. In the case of an association having its foundation based on property in which all do not share equally, as in an inheritance or an estate, in case one has a half, another a third, another a quarter, then not only must the order according to the amount of participation be followed, but also the votes must be counted in proportion to the shares, that is, to use a technical expression, pro rata. This is in accord with natural justice and was approved by the laws of the Romans also.
Thus Strabo relates that when Libyca and three neighboring cities had united into one body politic it was agreed that the others should have one vote each, but Libyca two, because it contributed much more to the common interest than the others. The same author reports that in Lycia there were twenty-three cities, of which some had three votes each, some two, and some only one, and that they distributed the burdens in the same proportion. But Aristotle rightly notes that such a division would be fair only in case ‘the association was entered into on account of property.’
XXIII. The right of a state over its subjects.
An association in which many fathers of families unite into a single people and state gives the greatest right to the corporate body over its members. This in fact is the most perfect society. There is no lawful act of men which does not have relation to this association either of itself or by reason of the circumstances. And this is what Aristotle expressed in saying that ‘the laws prescribe concerning matters of every kind.’
XXIV. Whether it is permissible for nationals to withdraw from a state; explanation, with a distinction.
1. Here the question is commonly raised, whether it is permissible for nationals to withdraw from their state without permission.
We know that there are peoples among whom such withdrawal is not permissible, as the Muscovites; and I do not deny that a civil society can be formed on such terms, and that such a custom may receive the force of agreement. By the Roman laws, at least the later laws, a man could at any rate change his place of habitation, but none the less the person who had done so was subject to the burdens of his native town. This applied, however, only to those who remained within the limits of the Roman Empire, and the regulation itself had special reference to the payment of taxes.
2. But we arc inquiring what would naturally be the rule if nothing else were agreed upon; and not regarding a part of a state, but a whole state, or even the limits of a single empire. And surely, that the nationals of a state cannot depart in large bodies is quite clear from the necessity underlying its purpose, which in moral matters takes the place of law. For if such migration were permissible the civil society could not exist.
The withdrawal of individuals, on the contrary, seems a different matter, just as it is one thing to draw water from a river and another to conduct the stream into a canal. Tryphoninus says: ‘Each has the unrestricted right to choose his own state.’ Cicero in the speech For Balbus praises the law that ‘no one is forced to remain in a state against his will,’ and calls ‘each man’s power to retain or to abandon his right the foundation of liberty.’
Yet here also we must observe the rule of natural justice which the Romans followed in putting an end to private associations, that a thing should not be permitted if it is contrary to the interests of society. ‘Always, in fact,’ as Proculus rightly says, ‘it is the custom to observe, not what is to the interest of an individual associate, but what is to the interest of the association.’ Moreover, it will be to the interest of the civil society that the national do not withdraw if a heavy debt has been contracted, unless the national is prepared to pay his share at once; likewise if war has been undertaken because of confidence in numbers, and especially if a siege threatens, unless the national is prepared to furnish an equally capable substitute to defend the state.
3. With the exception of these cases, it is to be believed that peoples consent to the free withdrawal of their nationals, because from granting such liberty they may experience not less advantage than other countries.
XXV. The state has no legal claim against exiles.
Thus the state has no legal claim against exiles. According to Euripides the descendants of Hercules, expelled from Argos by Eurystheus, through their defender Iolaus speak as follows:
- By what right does he now claim us as of Mycenae,
Whom, there abiding, he from that city drove?
Citizens, therefore, we no longer are.
In an oration of Isocrates the son of Alcibiades, discussing the period of his father’s exile, says: ‘When our state had no relation with him.’
The association of several peoples, either of themselves or through their heads is a league; regarding the nature and effect of such association there will be an opportunity to speak when I come to the question of obligation arising out of a compact.
XXVI. The right, arising from consent, over an adopted child.
Subjection by consent is either private or public.
Private voluntary subjection can be of many kinds, as there are many kinds of authority. The noblest form is adult adoption, by which a person so gives himself to another family that he is subject to it in the same way in which a son of mature age is subject to his father. A father, however, cannot give his son to another in such a way that the full right of the father passes to the other, and that he himself is released from the duty of a father; for nature does not permit this. But the father can entrust his son to another, and allow him to be brought up by the other as in his place.
XXVII. The right over slaves.
1. The basest form of voluntary subjection is that by which a man gives himself into complete slavery, as those among the Germans who staked their liberty on the last throw of the dice; ‘The one who lost,’ says Tacitus, ‘went into voluntary slavery.’ Such slavery prevailed even among the Greeks, as Dio of Prusa relates in his fifteenth Oration: ‘Innumerable persons, though free, give themselves into slavery to serve according to contract.’
2. That is complete slavery which owes lifelong service in return for nourishment and other necessaries of life; and if the condition is thus accepted within natural limits it contains no element of undue severity. For the lasting obligation to labor is repaid with a lasting certainty of support, which often those do not have who work for hire by the day. Consequently that often comes to pass which Eubulus said:
- He fain would stay with them and without pay,
With food alone content.
The same writer of comedy elsewhere said:
- To his own manger many a slave returns,
Who once had run away and lived as free.
So Posidonius the Stoic noted in his Histories, that formerly there were many who, conscious of their weakness, of their own accord gave themselves into slavery to others, ‘so that the masters would provide them with the necessaries of life, and they themselves in turn would do what work they could.’ Others add the example of the Mariandyni, who for the same reason made themselves the slaves of the Heracleots.
XXVIII. To what extent the right of life and death may be said to exist in the right over slaves.
Masters do not have the right of life and death (I am speaking of complete moral justice) over their slaves. No man can rightly kill a man unless the latter has committed a capital crime. But according to the laws of some peoples the master who has killed a slave for any reason whatsoever goes unpunished. This is the case also with kings everywhere who have the most unrestrained power.
Seneca had already made this comparison: ‘If necessity and fear of suffering the worst prevents a slave from acquiring merit, the same obstacle will hinder one who has over him a king or a general, since to them equal powers are granted, though under a different title.’ Nevertheless, although a slave may without doubt receive injury at the hands of his master, as the same Seneca rightly affirms, yet impunity in action is not properly called a right.
Such a right over children both Solon and the ancient laws of the Romans assigned to parents. Sopater says Since he was a father, he was permitted to kill his children, of course in case they had committed a crime; for the law granted this permission to him, because it was believed that he would be a fair judge. Dio says in his fifteenth Oration that among many peoples famed for their laws the same right prevails.
XXIX. What according to the law of nature should be decided concerning those who are born of slaves?.
1. The question is more difficult in regard to the children of slaves.
By the Roman law and by the universal customary law relating to captives, as we shall state elsewhere, in the case of persons of servile rank, as in the case of animals, the offspring follows the mother. Nevertheless this is not in satisfactory agreement with the law of nature, in case the father can be recognized with sufficient certainty. For since in the case of dumb animals the fathers no less than the mothers care for the offspring, this fact shows that the offspring is common to both. If, then, municipal law had been silent on the subject, the children would not be less likely to follow the condition of the father than that of the mother.’
Let us suppose, to make the difficulty less, that both parents are in servitude, and let us see whether the children will naturally be of servile condition. Surely, if there were no other method of bringing up the children, the parents could adjudge to slavery, along with themselves, the offspring liable to be born to them, since under such conditions parents are allowed to sell children born free.
2. But since this right derives its origin from necessity only, without such necessity the parents do not have the right to enslave their offspring to any one. Consequently in this case the right of masters over the children of slaves will arise from the furnishing of nourishment and other necessaries of life; and so, since the children of slaves have to be supported for a long time before their work can be useful to their masters, and since the services which follow are in return for support in that period, it will not be permissible for those who are born under such an obligation to flee from slavery unless they return adequate compensation for their support.
Surely the generally approved opinion is that, if the cruelty of the master is excessive, even those slaves who have voluntarily given themselves into slavery can take counsel for their welfare by flight. For the prohibition by which the Apostles and the early canons forbid slaves to leave their masters is a general prohibition, which is opposed to the error of those that denied all subjection, either private or public, as inconsistent with Christian liberty.
XXX. Different kinds of slavery.
Besides the complete slavery, which we have already treated, there are also varieties of incomplete slavery, such as that which is temporary, or under a condition, or for certain purposes. Such is the state of freedmen, of those who have been promised freedom conditionally, of debtor bondsmen both voluntary and from court decree, of serfs bound to the land, of the seven year servitude among the Jews and of the other kind which lasts till the year of Jubilee, of the Penestae among the Thessalians, of tenants of land held under the law of mortmain, and finally of men hired for pay.’
These distinctions are dependent either on laws or on agreements. Also, for reasons mentioned above, seemingly by the law of nature, incomplete slavery exists in the case of those that are born of one parent who is free while the other is a slave.
XXXI. The right gained by consent over a people which submits.
Public subjection is that condition in which a people is that surrenders itself to some man, or to several men, or even to another people. The formula of such a subjection we have given above in the example of Capua. Similar is that of the people of Collatia:
Do you surrender the people of Collatia, the city, the fields, the water, the boundaries, the shrines, and all appliances divine and human, into my power and that of the Roman people?
And I accept them.
Alluding to this formula, Plautus in the Amphitruo says:
- They yield themselves, and all things human and divine,
Their state and children, to the Theban people’s rule and will.
The Persians called this the giving of earth and water. This, then, is complete subjection.
There are also other degrees of subjection which are less complete, either in the manner of holding sovereign power or in the plenitude of it; the different degrees can be derived from the discussion previously given by us.
XXXII. The right over a person resulting from a crime.
Subjection as a result of crime arises also without consent, whenever a person who has deserved to lose his liberty is by force brought under the power of him who has the right to exact the penalty. We shall see below who has the right to inflict punishment.
In this way individuals can be brought under private subjection, as at Rome those were who did not respond to conscription, those who did not correctly report their property to the censors, and afterward also women who cohabited with another’s slave; and also peoples can be brought into public subjection for a public crime. But there is a difference in this respect, that the servitude of a people is naturally lasting, since the succession of the parts does not prevent it from remaining one people. On the other hand the penal servitude of individuals does not pass beyond the persons themselves, because the crime attaches to the person of the criminal.
Moreover, both kinds of penal servitude, private as well as public, can be either complete or incomplete, according to the degree of the crime and punishment inflicted. Below, when we come to the results of war, there will be an opportunity to speak of slavery, both private and public, which arises from the volitional law of nations.