Special Political Discourses on Domestic Society and the Rights of Citizens

On the Species of Society. Discourse I.

original: Speciebus. Discursus I.

...retention in dotal matters dotal: relating to a dowry, on account of "removed things" original: ob res amotas — a legal term for property stolen or secretly taken by one spouse from another during the marriage: as Jason Jason de Mayno (1435–1519), an influential Italian jurist teaches that this is the truer opinion in his commentary on the law "on divorce," law 8, paragraph "on account of donations," number 4, near the end, in the Digest on the dissolution of marriage. This is also supported by Duaren at the same location; by Romanus in his commentary on "the matter having been judged," number 9; and there also by Alexander, number 8; and Duaren in the Digest on the same title. See also Novellus, On the Dowry, part 8, privilege 1; Charondas, book 2 of Likely Truths, chapter 10; and Antoine Guibert Costanus in his Treatise on the Dowry, chapter 7, number 17. Indeed, because retention is generally prohibited (according to the text praised above) under the pretext of a debt, this also includes "compensation" compensation: a legal "set-off" where a debt is canceled out by a counter-claim. For even he who compensates is considered to be "retaining" property, according to law 4 on compensation. Likewise, it is a matter of undisputed law that compensation has no place unless the debt exists as "liquid" liquid debt: a debt that is clear, undisputed, and fixed in amount on both sides. This might be established by the confession of the parties, the nature of the question, or the speed and ease of proof, according to the final law in the Code on compensation. See Zanger, On Exceptions, part 3, chapter 6, number 31. Finally, a debt is considered "liquid" when it is apparent what it is, of what quality, and how much it is. See Coler, On the Executive Process, part 3, chapter 1, number 3. Furthermore, a woman cannot prejudice the rights to her own dowry while the marriage lasts, according to Tuschus, volume 2, conclusion 798, number 8. Indeed, a husband is not released from the duty of restoring the dowry even if he returns it to the wife and she later loses it, according to the law "the mute," 73, paragraph 1, and the final law and its gloss in the Digest on the law of dowries. This is followed by others including Johann Friedrich von Solis in his Treatise on the Dowry, question 47. Finally, a Spendthrift Prodigus: someone legally declared incompetent due to wasteful spending, who pours away his goods by dissipating and squandering them, is equated to a Madman. He enjoys the legal status established for minors and can only perform actions that are to his own benefit.

5. Furthermore, it seems to be a question of some doubt whether Citizens can be compelled to enter into Marriage, since it is in the interest of the Republic that marriages be frequent. Although Arnisæus Henning Arnisæus (1570–1636), a German physician and political theorist affirms this in his Politics, chapter 3, page 50, and in his On the Law of Marriage, book 1, section 5, page 25, I nevertheless consider it a harsh thing to impose upon one who prefers chaste Celibacy (the requirements of which Arnisæus reviews in the cited chapter 1, section 7). It appears to be contrary to the "efficient cause" of marriage—or as others prefer, the "formal cause"—which is legitimate consent. See Augustine, volume 6, On Holy Virginity, and Thomas Sanchez in his Treatise on the Sacrament of Marriage, book 4, dispute 22. Plato, in the sixth book of his Laws, writes on this matter: that Citizens ought to devote their efforts to begetting and educating children, so that they may in turn pass on to posterity the life they received from their ancestors, like a burning torch. Parents, too, seem to be able to claim a certain right in this matter. Hence, in Ovid’s Metamorphoses, book 1, fable 13, Inachus says to Io:

And regarding whether all people ought to strive for Marriage, see Pererius, book 4 on Genesis, page 159. However, although Celibacy is preferred over marriage even by St. Paul in 1 Corinthians 7, and also by our Savior himself in Matthew...