Of Domestical Duties, Treatise 3 · Section 20 – Section 28
§. 20. Of the things whereabout a wife muſt hauehave her huſbands conſent.
The things whereabout an husbands conſent is to be expected, are ſuch as he by vertue of his place and authoritie hath power to order: as for example, ordering and diſpoſing the goods, cattell, ſeruants, and children of the family, entertaining ſtrangers; yea, alſo ordering euen his wiues going abroad, and making of vowes, with the like: now then diſtinctly to lay downe a wiues dutie in this firſt branch of obedience, it is this:
A wife muſt doe nothing which appertaineth to her husband authoritie ſimply without, or directly againſt his conſent. Doe not theſe words of that old law (thy deſire ſhall be to thy husband) Gen. 3. 16.imply as much? I deny not but that there may be ſundry things proper and peculiar to a wife, wherein I will not reſtraine her libertie: and therefore I vſe this phraſe (which appertaineth to her husbands authoritie.) And I grant the forenamed generall and implicit conſent, to be a true conſent, ſo as there needeth not an expreſſe particular conſent for eueryevery thing, and therefore I hauehave added theſe clauſes (ſimply without, or directly againſt conſent.)
That is done ſimply without conſent which is done without all warrant from the husband, and that ſo couertly as ſhe is afraid it ſhould come to his notice, imagining he would by no meanes like it: As Rahels taking her fathers idols without all Gen. 31. 32.conſent of Iaakob.
That is done directly againſt conſent which is expreſly forbidden and diſclaimed by the husband.
But to deſcend to the particulars before mentioned: Firſt concerning the goods of the family: It is a queſtion controuerted whether the wife hauehave power to diſpoſe them without or againſt the husbands conſent.
Before I determine the queſtion, I thinke it needfull to declare, 1. What goods, 2. What occaſion of giuing the queſtion is about.
§. 21. Of the things which a wife may diſpoſe without her husbands conſent.
1. For the goods, ſome are proper and peculiar to the wife: Quaedam bona ſunt propria vxoris, vt ſunt bona paraphernalia. Greg. Sayr. Clau. reg. l. 9. c. 16.others are common. Goods proper to the wife are ſuch as before mariage ſhe her ſelfe, or her friends except from the huſband to her ſole and proper vſe and diſpoſing, whereunto he alſo yeeldeth: or ſuch as after mariage he giueth vntounto her to diſpoſe as ſhe pleaſe: ſuppoſe it be ſome rent, annuity, fees, …ailes, or the like.
Theſe kindes of goods are exempted out of the queſtion foreign bona apud iuriſconſultos, dicuntur foreign (i.) quae ſponſa praeter dotem à parentibus pactam ſecum fert: vel (vt Sayrus loc. citat.) habet legata ei, ſeu donata.in hand; the wife hath liberty to diſpoſe them as ſhe pleaſe without any further conſent then ſhe had by vertue of her hausbands former grant.
To theſe I may referre other goods, but of another nature, namely ſuch as ſome friend of hers, ſuppoſe father, mother, brother, or any other, obſeruing her husband to be a very …ard man, not allowing ſufficient for her ſelfe, much leſſe to diſtribute on charitable vſes, ſhall giuegive vntounto her to diſpoſe as …e pleaſe, charging her not to let her husband know thereof. How becauſe it is in the power of a free doner to order his …ift as he pleaſe, and becauſe he ſo ordereth this gift as he will not hauehave her husband know of it, I doubt not but ſhe may of her ſelfe according to the doners minde without her huſbands conſent, diſpoſe ſuch goods. She is herein but as a …offee in truſt.
Againe of common goods ſome are ſet forth by the huſband to be ſpent about the family, other he reſerueth for a …ocke, or to lay forth as he himſelfe ſhall ſee occaſion.
Concerning thoſe which are ſet forth to be ſpent, I doubt …ot but the wife hath power to diſpoſe them; neither is ſhe …ound to aske any further conſent of her husband. For it is the wiues place and dutie to guide or gouerne the houſe, 1 Tim. 5. 14. foreign.by vertue whereof, prouiding ſufficiently for the family, ſhe may, as ſhe ſeeth good occaſion, of ſuch goods as are ſet apart to be ſpent, diſtribute to poore, or otherwiſe.
This I hauehave noted for ſuch tender conſciences as thinke they cannot giuegive a bit of bread, or ſcarp of meat to a poore body, or make a meſſe of broth or caudle for a ſicke body, except they firſt aske their husbands conſent.
Prouided that if her husband expreſly forbid this liberty, ſhe take it not except neceſſity require it.
But our queſtion is concerning ſuch goods as the husband hath not ſet apart, but reſerued to his owne diſpoſing.
§. 22. Of a wiues liberty in extraordinary matters.
II. For the occaſion of diſpoſing goods it may be ordinary or extraordinary. Extraordinary for the good of the husband himſelfe, and others in the family, or ſuch as are out of the family. If there fall out an extraordinary occaſion whereby the wife by diſpoſing the goods without or againſt the conſent of her husband may bring a great good to the family, or preuent and keepe a great miſchiefe from it, ſhe is not to ſtay for his conſent; inſtance the example of a1 Sam. 25. 18. &c.Abigail. Thus a faithfull prouident wife obſeruing her husband to riot, and to ſpend all he can get in carding, dicing, and drinking, may without his conſent lay vp what goods ſhe can for her husbands, her own, her childrens, and whole houſholds good. This is no part of diſobedience, but a point wherein ſhe may ſhew her ſelfe a great good helpe vntounto her husband; bGen. 2. 18.for which end a wife was firſt made.
Concerning ſuch as are out of the family, if they be in great need, and require preſent releefe, though the wife know her husband to be ſo hard-hearted, as he will not ſuffer her to releeue ſuch an one, yet without his conſent ſhe may releeue him. The ground of this and other like caſes is that rule laid downe by the Prophets, and by Chriſt himſelfe, viz. cOſe. 6. 6. Mat 9. 13. & 12. 7.I will hauehave merciemercy and not ſacrifice. If God in caſe of merciemercy diſpenſeth with a dutie due to himſelfe, will he not much more diſpenſe with a dutie due to an husband?
§. 23. Of a wiues *Treat. 4. §. 54.reſtraint in diſpoſing goods without conſent of her husband: and of the ground of that reſtraint.
Out of all theſe things thus premiſed I gather the true ſtate Non poteſt vxor ex bonis communibus occulte accipere ad donandum vel ad erogandum in alios vſus ſine expreſſa, aut praeſumpta ſaltem viri licentia. Gre…. Sayr. loc. citat.of the queſtion in controuerſie concerning the power of wiues in diſpoſing the goods of the family to be this,
Whether a wife may priuily and ſimply without, or openly and directly againſt her husbands conſent diſtribute ſuch common goods of the family as her husband reſerueth to his owne diſpoſing, there being no extraordinary neceſſity?
The moſt ancient and common anſwer vntounto this queſtion hath beene negatiue, namely, that a wife hath not power ſo to doe: whereunto I for my part ſubſcribe.
The ground of this anſwer is taken from that primary law of the wiues ſubiection, aGen. 3. 16.Thy deſire ſhall be vntounto thine husband. How is her deſire ſubiect to her husband, if in the caſe propounded ſhe ſtand not vponupon his conſent? It is further confirmed both by the b§. 17.forenamed, and alſo by all other proofes that might be produced out of the Scripture concerning the ſubiection of wiues vntounto their husbands. If in ordering the goods of the family ſhe yeeld not ſubiection, wherein ſhall ſhe yeeld it?
Againſt this ground-worke ſome obiect that cGen. 4. 7.the ſame law of ſubiection is impoſed vponupon a younger brother in the very ſame words, and yet a younger brother was not therby bound How the law of ſubiection is applied to younger brothers.to hauehave his elder brothers conſent in diſpoſing his goods.
Anſw. The law of the regality (as I may ſo ſpeake) and preheminency of the firſt borne was vnderunder thoſe words ordained: and therfore a younger brother was made a ſubiect to his elder, while he remained in the family, as a ſonne to the father. The elder brother was as a lord ouer his other brothers: whereupon when Iſaak conferred the right of the firſt borne vponupon Iaakob (thinking he had beene his eldeſt ſonne Eſau) he vſed theſe words, Be lord ouer thy brethren, and let thy Gen. 27. 29.mothers ſonnes bow downe to thee. Which being ſo, queſtionleſſe the younger brother might not ſimply without or directly againſt the elder brothers conſent diſpoſe the goods of the family: ſo as this obiection more ſtrongly eſtabliſheth the forenamed argument.
Againe it is obiected that that old law is to be expounded of weighty matters.
Anſw. The Apoſtle who was guided by the ſpirit of the Eph. 5. 24.law-maker, extendeth that law to eueryevery thing: But is not this matter of diſpoſing goods a weighty matter? The conſequences which I ſhall by and by note to follow hereupon will ſhew it to be a matter of moment.
§. 24. Of the example of the Shunemite in asking her huſbands conſent.2 King. 4. 9, 22.
As another reaſon may be alleged the Shunemites patterne who asked her husbands conſent before ſhe prepared the things that were thought meet for the Prophets entertainment: and before ſhe vſed the things which were meet for her iourney.
Obiect. It is indeed commendable for wiues to ſeeke their husbands conſent as ſhe did, but where ſuch conſent cannot be had, it is not neceſſary.
Anſw. This example being grounded vponupon a law (as we ſhewed *§. 23.before) it doth not only declare what may be done, but alſo what ought to be done. And if a wife be bound to hauehave her husbands conſent for doing of a thing, by conſequence it followeth that ſhe is bound from doing it, without her huſbands conſent.
2. Anſw. They that except againſt this reaſon taken from example, vſe themſelues the like reaſon in other points, as the examples of Abigail, Ioanna, and Suſanna for the contrarie.
2. Obiect. In the Shunemites example there was more then a mercifull releefe of the Prophet, namely bringing him into the houſe to diet and to lodge, wherein the husband muſt hauehave a chiefe ſtroake.
Anſw. The word of God maketh not that difference betwixt releeuing and entertaining: it extendeth a wiues ſubiection to eueryevery thing: wherefore the husband hath a chiefe ſtroake as well in the one, as in the other.
§. 25. Of the law of a wiues vow.
A third reaſon is taken from the law of a wiues vow: whereby Num. 30. 7. &c.in generall is implied, that a wife might not make a vow without her husbands conſent: whence it followeth as an argument taken from the greater to the leſſe, that ſhe may not diſpoſe the goods without his conſent. Yea, bVerſ. 13.the Law further expreſly ſaith, that though ſhe hath vowed, yet her husband hath power to diſanull her vow. Note here, how the Lord will rather depart from his owne right (as I may ſo ſpeake) then hauehave that order which he hath appointed betwixt man and woman broken. The Lords right, was to hauehave what was vowed to him performed: the order which he appointed, was to hauehave the wife ſubiect to her husband: rather then the wife ſhould doe that which the husband would not hauehave done, the Lord remitted a wiues vow in caſe her husband would not conſent to hauehave it performed. Now then I demand, is the diſpoſing of goods a greater matter then the performing of a vow? or hath a wife in theſe dayes more libertie then in former? if ſhe hauehave, by what law? was there euer vnderunder the Law a ſtraiter charge laid vponupon wiues then this, Let wiues be ſubiect to their husbands in euerie thing.
Obiect. That point of a womans ſubiection in performing her vow, is a particular ruled caſe: but not this of diſpoſing goods.
Anſw. The Scripture by particular Lawes and examples teacheth directions for other caſes like to them: and arguments drawne by iuſt and neceſſarie conſequence, are counted as ſound as expreſſe teſtimonies. Whereas it is ſaid, that this particular in queſtion is not expreſly decided, I take the reaſon thereof to be this, that in former times they ſo well marked the extent of the generall law of a wiues ſubiection, as they made no queſtion of doing this or other like things without their husbands conſent. Neither did good wiues take that libertie, neither had they any patrons of ſuch libertie.
2. Obiect. The caſe of a wiues diſpoſing goods is vnlike to that of vowes, becauſe vowes are voluntarie, but diſpoſing goods, as a worke of merciemercy, is neceſſarie.
Anſw. Though it were a voluntarie thing to make, or not to make a vow: yet a vow being made, it was not in the power of the partie that made it, not to performe it: it was a cNum. 30. 3. Deut. 23. 21. Eccleſ. 5. 4.neceſſarie dutie to performe a vow, euen expreſly commanded. As for the pretended worke of merciemercy, I will §. 34.hereafter ſhew, that a wife is not neceſſarily tied thereunto.
§. 26. Of humane lawes which reſtraine wiues from diſpoſing goods, without or againſt their husbands conſent.
A fourth is taken from the lawes of men whereunto we are ſubiect, and which we muſt obey euen for conſcience ſake, ſo farre as they thwart not Gods Law, which in this caſe they doe not, as the reaſons before gathered out of Gods word doe ſhew.
Now our Law ſaith, that a45. E. 3. Fitz. Couen. 18.euerie gift, grant, or diſpoſition of goods, lands, or other thing whatſoeuer made by a woman 1. H. 5. 12. b. Perk. cap. de Grant. Nat. Breu. fol. 120. G.couert, and all and euerie obligation and feoffment made by her, and recouerie ſuffered, if they be done without her huſbands conſent, are void. Yea, bNat. Breu. fol. 188. H.if ſhe doe wrong to another, ſhe hath not any thing to make ſatisfaction during couerture: either her husband muſt doe it, or by impriſonment of her perſon muſt it be done. And cPerk. fol. 2. a.though ſhe hauehave inheritance of her owne, yet can ſhe not grant any annuitie out of it during her couerture, without her husband: if any deed be made to that purpoſe without his conſent, or in her name alone, it is void in law. Yea, dPerk. fol. 2. b.if there be debate betweene the husband and his wife, whereby certaine lands of the husbands be aſſigned to the wife with his conſent, if out of ſuch lands ſhe grant an annuitie to a ſtranger, the grant is void. And e27. H. 8. 27. p. 12.if he couenant to giuegive her yeerely ſuch and ſuch apparell, ſhe cannot diſpoſe it as ſhe liſt without his conſent, but only vſe and weare it her ſelfe. fPerk. fol. 3. a.Neither can ſhe leaſe her owne land for yeeres, for life, &c. if ſhe doe, it is void, and the Leſſee entring by force thereof, is a Diſſeiſor to the husband, and Treſpaſſor. And g21. H. 7. 18. p. 29. Nat. Breu. fol. 120 G.if ſhe ſell any thing, the ſale is void, except ſhe be a merchant, where by the cuſtome ſhe is enabled to merchandize. Finally, hOgnels caſe, Coke Rep. 4. 3 … 3. Deu. 12.ſhe cannot make executors without the conſent of her huſband, nor a deuiſe, or will. iPlowd. Com 344. a. Bret and Rigdons caſe.If ſhe make a will, and thereby deuiſe her owne inheritance, and her husband die, and ſhe after die without any new publication of it, it is of no force, becauſe it was void at firſt. Theſe and many other like caſes which might be alleaged euidently ſhew that by law a wife hath not power of her ſelfe, without her husband, to diſpoſe the common goods of the familie.
§. 27. Of the inconueniences which may follow vponupon a wiues diſpoſing goods without or againſt her husbands conſent.
A fit reaſon may be taken from the miſchiefes which would 1. A mans eſtate may be waſted before he can tell how to redreſſe it.fall out if this liberty were giuen vntounto women: which are theſe that follow:
1. The eſtate of the family might be waſted before any redreſſe could be thought of: for if the wife may diſpoſe the goods without her husbands conſent, it muſt alſo be granted without his knowledge: for it is to be ſuppoſed that if he knew of the diſpoſing of that which he liketh not, he would hinder it: if without his knowledge, then may that which he thinketh to be remaining as a ſtocke for the family, be laid out by the wife, and nothing left: whereas if he knew of the ſpending of that ſtocke, it might be he would be more thrifty and ſparing in other expences.
Obiect. This liberty is not granted to wiues beyond their husbands ability.
Anſw. Wiues cannot alwaies know their husbands ability: for their husbands may be much indebted, and yet to maintaine his credit, whereby he hopeth to raiſe his eſtate, may allow liberall maintenance for his houſe, if thereupon his wife ſhall gather that he is very rich, and accordingly be very bountifull in her gifts, ſhe may ſoone goe beyond his ability, and ſo increaſe his debt, as he ſhall neuer be able to recouer himſelfe.
2. Perſons of contrary religions and diſpoſitions being 2. Profeſſors of contrarie religions may be ſuſtained by the goods of the ſame family.out of the family, might be maintained by the goods of the ſame family: for if the husband were of one religion, and the wife of another, he without her knowledge might maintaine thoſe of his religion, and ſhe without his knowledge might maintaine them of her religion.
Obiect. This liberty of diſpoſing goods giuen to the wife is limited within the bounds of the houſhold of faith.
Anſw. If Diuines grant them this liberty, they will themſelues iudge and determine who be of the houſhold of faith: Popiſh wiues will ſay (ſay we what we can to the contrary) that Ieſuites, Prieſts, and Friers, are of the houſhold of faith, principall members thereof.
3. Many iarres and contentions would thence ariſe betwixt 3. Iars would ariſe betwixt man and wife.husband and wife: for if a wife ſhall perſiſt to doe that which her husband will not conſent vntounto, aſſuredly one of a thouſand will not well brooke it, but will rather ſeeke all the wayes he can to croſſe her; thinking himſelfe deſpiſed, if ſhe, whether he will or no, hauehave her minde.
Obiect. Wiues muſt vſe this libertie with all due reſpect vntounto their husbands authoritie.
Anſw. If the husband peremptorily ſtand vponupon his authoritie, and by all the faire meanes that can be vſed, will not yeeld this libertie, I know not what better reſpect ſhe can ſhew to this authoritie, then to forbeare and abſtaine from doing that which otherwiſe ſhe would moſt gladly doe: But if when it commeth to the vttermoſt point, and ſhe ſhall ſay it is her right, and if ſhe cannot hauehave his conſent, ſhe will doe it without his conſent, ſhe therein ſheweth no great reſpect.
Many other inconueniences might be reckoned vp, but I will not longer inſiſt on them, only from theſe let it be well conſidered, whether it were not better for a familie, that the huſband ſhould be bard from diſpoſing the goods without conſent of his wife (ſo as there might be according to the prouerbe, but Though ſhe had a proprietie, yet hath ſhe not thereupon libertie to diſpoſe the goods.one hand in the purſe) then both husband and wife to hauehave libertie to diſpoſe them without each others conſent.
§. 28. Of propertie in goods, whether it giuegive libertie to diſpoſe them as a wife will.
To iuſtifie a wiues libertie in diſpoſing the common goods Licet vxor proprietatem habeat, adminiſtrationem tamen, & vſum. fructū bonorum viuente marito non habet. Greg. Sayr. clau. reg. lib. 9. cap. 16.of the family without her husbands conſent, it is ſaid, that ſhe hath a true right and propertie in thoſe goods.
1. Anſw. Though it were granted that a wife hath a true property in the goods, yet this concluſion would not follow thereupon, that ſhe hath power of her ſelfe to diſpoſe the goods without her husbands conſent: for the authoritie which God hath giuen an husband, and ſubiection which he hath laid on a wife, reſtraine her power and libertie in that which is her owne: as for example, ſuppoſe *See Doctr. & ſtud. fol. 13.that a woman at the time of her mariage hauehave a leaſe for yeeres, or the wardſhip of the body and lands of an infant, or hauehave it by gift or Perk. plito. 560. 26. H. 8. 7. p. 1. Plowd. comment. 418. b.purchaſe after mariage, ſhe cannot giuegive it away whatſoeuer the extremitie be: but her husband may any time during couerture, diſpoſe of it: and ſuch his diſpoſition ſhall cut off the wiues intereſt. Or ſuppoſe that the only childe of her father be an inheretrix of land, and hauehave in her ſelfe (her father being dead) the full poſſeſſion thereof: or that a widow hauehave the right vntounto, and poſſeſſion of her husbands eſtate, and thus poſſeſſed be maried to an husband, hath ſhe being a wife liberty to diſpoſe that eſtate which ſhe brought with her without or againſt her husbands conſent? I thinke none will ſay it. Sure I am that what ſhe giueth, lendeth, ſelleth, or otherwiſe diſpoſeth without his conſent, he if he will, may for his lifetime recouer againe: and yet no man will denie but that ſhe hath the trueſt intereſt and propertie in the forenamed lands and inheritance.
Obiect. May ſhe not as well diſpoſe of her owne inheritance, as of thoſe goods, or reuenues which her husband giueth her?
Anſw. No, for the gift of the husband is a generall conſent of his for her to diſpoſe that which is giuen her as ſhe ſeeth meet.