The six bookes of a common-weale. VVritten by I. Bodin a famous lawyer, and a man of great experience in matters of state. Out of the French and Latine copies, done into English, by Richard Knolles

About this Item

Title
The six bookes of a common-weale. VVritten by I. Bodin a famous lawyer, and a man of great experience in matters of state. Out of the French and Latine copies, done into English, by Richard Knolles
Author
Bodin, Jean, 1530-1596.
Publication
London :: [Printed by Adam Islip] impensis G. Bishop,
1606.
Rights/Permissions

To the extent possible under law, the Text Creation Partnership has waived all copyright and related or neighboring rights to this keyboarded and encoded edition of the work described above, according to the terms of the CC0 1.0 Public Domain Dedication (http://creativecommons.org/publicdomain/zero/1.0/). This waiver does not extend to any page images or other supplementary files associated with this work, which may be protected by copyright or other license restrictions. Please go to http://www.textcreationpartnership.org/ for more information.

Subject terms
Political science -- Early works to 1800.
State, The -- Early works to 1800.
Link to this Item
http://name.umdl.umich.edu/A16275.0001.001
Cite this Item
"The six bookes of a common-weale. VVritten by I. Bodin a famous lawyer, and a man of great experience in matters of state. Out of the French and Latine copies, done into English, by Richard Knolles." In the digital collection Early English Books Online. https://name.umdl.umich.edu/A16275.0001.001. University of Michigan Library Digital Collections. Accessed May 12, 2025.

Pages

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

ALL assemblies of men lawfully ioyned together, whether they be Families, Colledges, Vniuersities, or Commonweals, are kept together and preserued by the mutuall duties of comman∣ding [ H] and obeying: for as much as that libertie which nature hath giuen vnto euery one to liue at his owne pleasure, bound within no lawes, is yet subiect vnto the rule and power of some other. All which power to commaund ouer others, is either* 1.1 publick or priuat: The power publick, is either free from law, as is theirs which hold the chiefest place of soueraigntie; or els restrained by law, as is the power of the Ma∣gistrats, who although they commaund ouer priuat men, are yet themselues subiect vnto the commaunds and laws of others their superiours. The power priuat, consi∣steth either in the heads of families, or in corporations, or colledges, where all by a ge∣nerall consent, or the greater part, commaundeth ouer the rest. But the domesticall [ I] * 1.2 power is of foure sorts: viz. The power of the Husband ouer his Wife, the power of the Father ouer his children, the power of the Lord ouer his slaues, and the power of the head of a Familie ouer his mercenarie seruants. And for as much as the right and lawfull gouernment of euerie Commonweale, Corporation, Colledge, Societie, and Familie dependeth of the due knowledge of commaunding and obeying; let vs now speake of euery part of commaunding in such order as is by vs before set downe. For naturall libertie is such, as for a man next vnto God not to be subiect to any man liuing, neither to suffer the commaund of any other than of himselfe; that is to say, of Reason, which is alwaies conformable vnto the will of God. This naturall commaundement* 1.3 of Reason ouer our affections and desires, is the first, the greatest and most antient that [ K] is: for before that one can well commaund ouer others, hee must first learne to com∣maund himselfe, giuing vnto Reason the soueraigntie of commaund; and vnto his af∣fections obedience: so shall it come to passe that euerie one shall haue that which of right vnto him belongeth, which is the first and fairest iustice that is; and that where of the common Hebrew prouerb grew, That euery mans charitie should first begin of himselfe: which is no other thing than to keepe our affections obedient vnto Reason. This is the first law of naturall commaund, which God by his expresse commaunde∣ment * 1.4 established, as we see in the speech which God had both vnto her that was the

Page 15

first * 1.5 mother of vs all; as also against him who first defiled himself with his brothers [ A] bloud * 1.6. For that commaund which he had before giuen the Husband and his Wife, is two wayes to be vnderstood; first literally for the power the Husband hath ouer his Wife, and then morally for the commaund the soule hath ouer the bodie, and reason ouer affection. For that reasonable part of vnderstanding, is in man as the Husband; and Affection, as the Woman: For before God had created Eua, it was said of A∣dam, Male and female created he them * 1.7. Wherefore the woman in holy writ is of∣tentimes taken for affection: but neuer more than with Salomon, who so liued as a man vnto women most kind; but so writ, as if he had bene vnto them a sworne ene∣mie, whereas he thought nothing lesse, all that his speech being to bee vnderstood of mans vnreasonable desires, as well declareth the wise and graue Rabbin Maymon * 1.8. [ B] But leaue we the morall discourse vnto Philosophets and Diuines to dispute of, and let vs take that which belongeth vnto ciuill policie, and speake of the power the Husband hath ouer the Wife, as proper vnto this our question. By the name of a Wife I vn∣derstand a iust 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,* 1.9 if the concubine be franke and free: which all nations haue of good right reiected, and as it were by secret consent abrogated, as a thing dishonest and of euill example. Nei∣ther doth this power that the Husband nath ouer his Wife extend vnto her that is but betrothed, vpon whome the betrothed man may not lay his hand; which hath euer bene lawful vnto the Husband, both by the Ciuil and Canon law: yea if the be∣trothed [ C] 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, be∣fore they know one another; for that, the law calleth iust 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 haue followed her Husband: for as much as by the decrees of the Diuines 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 couiunction of their bodies; which by the consent of many nations is expresly receiued, as often as question is made of en∣ioying [ D] of such commodities as are to be gained by mariage. But after that lawful con∣iunction* 1.10 of man and wife (which we haue spoken of) the Wife is in the power of her Husband, except he be a slaue, or the sonne of the maister of the Familie, who haue no authoritie ouer their wiues, & much lesse ouer 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 haue but one head, one maister, and one Lord: whereas otherwise if it should haue 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 vnto the maister of the families sonne, is in the power of her father in law, as is also the [ E] free man marrying himselfe vnto 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 Fa∣ther set at libertie, although she haue 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 vnto the law of nature, which willeth, That euery man shuld be maister of his owne house, (as saith Homer) to the end that he may be a law vnto his familie: and re∣pugnant

Page 16

also vnto the law of God, which commaundeth the Wife to forsake fa∣ther [ F] and mother to follow her Husband; and also giueth power vnto the Husband to confirme or breake the vowes of his Wife. Wherefore that law of the Romans is* 1.11 worthily abrogated, and especially with vs: for that the custome generally exempteth the married woman out of the power of her father; as was likewise in the Lacedemo∣nian 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 marri∣ed, it is my Husband to whome I owe mine obeysance: for otherwise the wife might tread vnder foot the commaundement of her Husband, and acquit her selfe when shee saw good vnder the guard of her father. Now the interpretors of this Roman law haue vsed many cautions to auoid the absurdities and inconueniences following, if the [ G] wife should not be subiect to her husband, vntill 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, That* 1.12 the wife ought to be obedient vnto her husband, and not to refuse his commaunds not repugnant vnto 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 ouer her, in foure cases, without* 1.13 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 ri∣gor [ H] 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 Empe∣rour; for that the husband putting away his wife for adulterie, or himselfe attainted* 1.14 with the same crime, the offence remained vnpunished, 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 hus∣band ouer his wife was much diminished, yet neuerthelesse by the oration * 1.15 which Marcus Cato the Censor made vnto the people in defence of the law Oppia (which tooke from women their habilliments of collours, and forbad them to weare aboue [ I] one ounce of gold) it appeareth that the women were al their liues in the gouernment of their fathers, their brethren, their husbands, & next kinsmen, in such sort, as that with∣out their leaue 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, Vlpian the Lawyer writeth, That Tutors and Gouerners were wont to be giuen 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 diuided 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 wiues were in the power of their husbands, but was by him so done, to show the difference of power the husband hath [ K] ouer his wife, the father ouer his children, and the lord ouer his slaues. And what doubt is there but that this word Hand, signifieth oftentimes power and authoritie? the Hebrews, Greeks, & Latines, hauing alwaies so vsed 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, vseth the word Mancipare, a word proper vnto slaues: which word we yet vse in many our customes and lawes, where question is of the emancipating of women. But to make it plaine, this power of husbands ouer their wiues to haue bene common vnto all people, we will by two or three examples de∣clare

Page 17

the same. Olorus King of Thracia compelled the Dacians ouercome by their [ A] * 1.16 enemies, to serue their wiues, in token of extreame seruitude, & of the greatest reproach that he could deuise to doe them. We read also that by the lawes of the Lombards the woman was in the same subiection that the auntient Romans were, and that the husbands had all power of life and death ouer their wiues▪ which they yet vsed in the time of Baldus, not yet 260. yeares ago▪ And not to seeke farther, what people had euer so great power ouer their wiues as had our auncestors? The French men (saith * 1.17 Gaesar) haue power of life and death ouer their wiues and children, in like manner as ouer their slaues: and beeing neuer so little suspected to haue 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 [ B] * 1.18 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 * 1.19 auntient writers agree; which was not only the custome of the Romans, but also (as Theophrastus wri∣teth) of the auntient inhabitants of Marseiles•…•… in Prouinde, and the Milesians, who vsed the same law against their w•…•…es that had drunke wine▪ iudging that the disordered desires of the woman subiect to wine, would also make her drunke, and so afterwards* 1.20 an adultresse▪ We also find that the power giuen vnto the husband by the law of R•…•…∣mulus, To put his wife to death for adulter•…•…e, without the authoritie of the Magistrar▪ was common to all Greece, as well as to the Romans▪ For the law of Iulia which gaue leaue onely vnto the father to kill his daughter together with the adulterer, being taken [ C] in the deed doing▪ and not otherwise, was made by Augustus the Emperour aboue se∣uen hundred yeares after the law of Romulus: And yet by the same law it was permit∣ted vnto certaine persons to do the same that the father might, against their adulterous wiues: a right small punishment being appointed for the husband▪ who besides the per∣sons 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* 1.21 sorts of corrections ouer his wife, not extending vnto death▪ which is vnto husbands forbidden. After that Theodora the Empresse hauing got the maisterie ouer Iustinian the Emperour her husband, a blockish and vnlearned Prince▪ when she had made al the lawes she could for the aduantage of women against their husbands▪ she amongst [ D] others also changed the paine of death for adulterie, into the note of 〈◊〉〈◊〉: as did also in auntient time the Athen•…•…ians▪ excommunicating the adulterors•…•…▪ with the note also of infantie, as we read In the Pleas of 〈◊〉〈◊〉 which seemeth but a thing •…•…i∣diculous, considering that the note of 〈◊〉〈◊〉 cannot take any honour from her which hath already lost the same, and is altogether de famed▪ 〈◊〉〈◊〉 that vpon the matter she•…•… re∣•…•… altogether vnpunishe•…•…, & that for such a crime as the law of God * 1.22 punishe•…•…h with the most •…•…igorous death that then was▪ (that is to say with stoning) and which the auntient Aegyptians punished a•…•… 〈◊◊〉〈◊◊〉 with cutting off the •…•…ose of the woman, and the mans priuities. But in other crimes which more concerned the husband 〈◊〉〈◊〉 the publicke state; and deser•…•…ed not death power is by the consent•…•… all men 〈◊〉〈◊〉 [ E] vnto the 〈◊〉〈◊〉 and to chastice his wife, so that it be sparingly done▪ and within measure. And to the end that lius band•…•… should not abuse the power the law gaue them 〈◊〉〈◊〉 their wiues▪ they had an action against•…•… their husbands▪ in case of euill 〈◊〉〈◊〉; 〈◊〉〈◊〉 •…•…oward vsage▪ which was afterward by the law of Iusti•…•…an taken away▪ and a •…•…∣tie dec•…•…eed against them that had giuen the cause of the seperation▪ which were espe∣cially grounded vpon 〈◊〉〈◊〉; and poi•…•…ning attempted▪ but not hauing taken effect. Yet notwithstanding the decree of Iustinian, it is by our custome permitted vnto the wife wronged or euill entreated by her husband, to require seperation. And yet 〈◊〉〈◊〉 all

Page 18

that is no action of iniurie to be suffered betwixt the husband and the wife (as some [ F] * 1.23 would haue 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 haue an action of •…•…elonie against the wife, although she haue embeseled or purloyned all her* 1.24 husbands moueables. But as no loue is greater than that of marriage, (as saith Arte∣m•…•…dorus) 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 vnto the Athe∣nians, whome when they in a great assembly had laughed to scorne for his small sta∣ture, 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 [ G] little for vs two? Which his pleasant speech serued wel to the matter he had in hand, which was to persuade the Athenians vnto 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 diuorcement (which was after∣wards* 1.25 common to all people, and yet at this present is vsed in Affrick, and in all the east) gaue leaue to the husband to put away his wife, if she pleased him not, with charge that he might neuer take her againe, and yet might well marrie another; which was a meane to keepe the insolent wiues in subiection, 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 iust or probable cause had [ H] put away his wife. Now if it shall seeme to any an vnreasonable 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 striue, either therefore depart from the law now with vs in vse. Yet nothing seemeth vnto me more pernitious, than to constraine the parties so in dis∣like to liue together (except they will) to declare the cause of the diuorcement they de∣sire,* 1.26 & also wel proue the same before the Iudge: 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 enfor∣ced* 1.27 to proue the cause of the diuorce vnto the Iudge. As did in auncient time the He∣brews, and yet do at this present also, as we see in their Pandects, where is described the lawful act of diuorcement, & the bil of diuorcement which Rabi Ieiel of Paris gaue vn∣to [ I] his wife the xxix. of Octob. in the yere from the creation of the world * 1.28 5018. Ano∣ther example thereof is also extant in the Epitome of the Hebrew Pandects▪ collected by the Lawyer Moyses de Maymon in Chaldea, where the Iudge of the place hauing seene the special procuratiō, & the act of him that had put away his wife in the presence of three witnesses, adioyneth thereunto these words, That he did purely and simply di∣uorce her, and without any cause showing, giuing them both leaue to marry whome they should see good. In which doing the woman was not dishonoured, but might with safe reputation marrie with another •…•…ortable to her owne qualitie. And albeit that the Athenians admitted no diuorcement, except the cause were first proued before the Iudges, yet seemed it to all good men to be a thing of great daunge•…•…: insomuch that [ K] * 1.29 Alcibiades fearing the publick scandall tooke his wife openly complaining before the Iudges, and carried her away home vpon his shoulders. More indifferently delt the auncient Romans, in ioyning no cause at all vnto the bill of diuorcement: as is to be seene when Paulus Aemilius put away his wife, whome he confessed to be very wise,* 1.30 honest; and nobly descended; and by whom he had also many faire children: but when his wiues friends complaining vnto him, would needs know of him the cause of the di∣uorce, 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

Page 19

the cause seeme not sufficient vnto the Iudge? or be not well proued? is it therefore [ A] meet to enforce the parties to liue together, in that societie which is of all other the straitest▪ hauing alwaies the one the other the obiect of their griefs stil before their eies. Truly I am not of that opinion: for seeing themselues brought into extreame serui∣tude,* 1.31 feare, and perpetuall discord, hereof ensue adulteries, and oftentimes murthers and poysonings, for the most part to men vnknowne; as it was discouered in Rome, before the law of diuorcement (first made by Spurius Caruilius, about 500. yeares after the foundation of the citie) a woman being apprehended and conuicted for poysoning her husband, accused other her companions in the fact, who afterward by mutuall accusa∣tions appeached seuentie 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 di∣uorcements [ B] are altogether forbidden? For both the Greek and the Roman Empe∣rours, willing to take away the often vse and easinesse of diuorcements, and to amend the auncient custome, ordained no other penaltie than the losse of the dowry, or of the other matrimonial conuentions, vnto the partie that shuld be the cause of the diuorce. Anastasius also suffered diuorcement, by consent of both parties, to bee made without any penaltie or punishment: which was by Iustinian the Emperour, or rather Theodo∣ra his wife forbidden. Now of that which we haue alreadie said, euery man as I sup∣pose, may of himselfe iudge which is most expedient for a Commonweale.

But what change or varietie of lawes soeuer in such diuersitie of Commonweals, there was neuer law or custome that exempted the wife from the obeysance, and not [ C] onely from the obeysance, but also from the reuerence that shee oweth vnto her hus∣band; in such sort that the law permitteth not the wife to sue her husband without the leaue of the Magistrat. But as nothing is greater, better, or more necessarie for the pre∣seruation not of Families only, but of Commonweals also, than the honest obedience of wiues towards their husbands, as saith Euripides: so beseemeth it not the husband vnder the shadow of this power, to make a slaue of his wife. And wheras Marcus Var∣ro* 1.32 is of opinion that slaues 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 house∣fellow. So Homer bringing in Iupiter reprouing his wife Iuno, and seeing her rebelli∣ons, vseth great threats, but proceedeth vnto no further extremities. And Cato com∣monly [ D] reputed to be a sworne enemie vnto women, did neuer beat his wife, reputing that to be as it were a sacrilege; but vsed so to maintaine the power and dignitie of a husband, as that he had his wife alwaies at commaund: which he shal neuer do which of a maister is become her companion, & afterward her seruant, & of a seruant her very slaue. As was of old obiected vnto the Lacedemonians, who called their wiues their* 1.33 Ladies and Mistresses: which the Romans did also, not the priuat men only, but euen* 1.34 their Emperors themselues, in the declination of their Empire; who at length together with their domesticall gouernment lost also their publick soueraigntie. Albeit that* 1.35 such women as take pleasure in commaunding their effeminat husbands, are like vnto them that had rather to guide the blind, than to follow the wise and cleere sighted. [ E]

Now the law of God, and the holy tongue, which hath named all things according* 1.36 to the true nature and proprietie thereof, calleth the husband Bahal▪ that is to say, Lord and maister; to show that vnto him belongeth the soueraigntie 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 wiues in wisedome and vertue, haue 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

Page 20

there haue bene many and yet are, which take their nobilitie and gentrie from their [ F] mothers, and not from their fathers; as the Lycians, the Delphiens, the Xanthiques, the Ilienses, and the Capadocians: whether it were for the vncertaintie of their fathers, or for that they had lost all their nobilitie in the warres; as in Campagne; where the wines (for the cause aforesaid) ennoble their bale husbands and their children; as also among the Indians in Calecut, the kings euen yet▪ and the Nobilitie which they call Naires haue 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 de∣crees; 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 [ G] 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 Ciuill law agree. All lawes and customes also haue made the husband maister of his wiues actions, and to take the profit of all the lands and goods that to her befall: and suffer not the wife to stand in iudgement either as plaintiue or defendant, without the authoritie of her husband; or at least without the authoritie of the Iudge who may giue her authoritie so to do in the absence of her husband, or he refusing so to doe. All vndoubtfull arguments to shew the authoritie, power, and commaund that the husband hath ouer his wife▪ by the lawes both of God and man: as also of the subiection, reuerence, and obedience which [ H] the woman oweth vnto her husband, in all honour and things lawfull. Yet I doubt not, but that women in their matrimoniall contracts haue sometimes vsed to couenant not to be in any thing subiect vnto their husbands▪ but for as much as such couenants and agreements are contrarie to the lawes both of God and man, as also vnto publick honestie, they are not to bee obserued and kept▪ in such sort, as that no man can there∣vnto to be bound by oath.

Notes

Do you have questions about this content? Need to report a problem? Please contact us.