dicere vitia oportere; cætera sine insidiis agere; at, quoniam vendat, velle quam optimé vendere. Adduxi, exposui, vendo meum; non pluris quam cæteri; fortasse etiam minoris, cum major est copia. Cui fit injuria?" In the same manner it has been decided by an English court*, that the Purchaser of an estate was not obliged to disclose to the Seller his knowledge of the existence of a mine on the Estate.

But it is further stated to be law†, that the Seller is liable, if he fraudulently misrepresent the quality of the thing sold, in some particulars in which the Buyer had not equal means of knowledge: or if he do so, in such a manner as to induce the Buyer to forbear making the enquiries, which, for his own security and advantage, he would otherwise have made.

173. It has been attempted to express all Rules on this subject by saying that the Rule of Contract is Equality: "Ut ex inæqualitate jus oriatur minus habenti §.” But this maxim must not be carried so far as to destroy the nature of a Contract: for by that, we do not agree, generally, to give and receive equal things; but we determine what we are to give and receive. The Rule is rather to be sought in the intentions and expectations of the parties contracting. Each is obliged to do that which he gives the other reason to expect, and knows that he does expect. This is expressed by saying that the transaction is bonâ fide, in good faith.

174. Yet in many cases, the estimate of the intentions and expectations of the parties must be vague and obscure; and instead of attempting to regulate the course of

I offer them for sale; I sell what is my own; not dearer than others; perhaps cheaper, as I have a larger stock. Whom do I wrong?"

* Kent, II. 489. § So that he who equality.

† Ibid. 11. 487.

Grot. B. et P. 11. 12. receives the less has a claim arising from the in

law by these, it may be more proper to apply strict rules of interpretation to the language of Contracts. Hence the Roman Law makes a distinction of actions bona fidei, and actions stricti juris.

Rules of Interpretation of the Language of Contracts have been laid down by Jurists; and are an important part of the doctrine of Contracts, in its applications. These Rules, for the most part, have for their object to combine good faith with exact Law. Such are these, for instance; that common words are to be understood in a common sense; Terms of Art in their technical sense that when it is necessary, words are to be interpreted by the matter, effect, and accompaniments: and the like*.

175.

The wrongs which violate the Rights of Contract are Fraud, of which some causes have been considered; and Breach of Contract, against which the Law provides Remedies, by actions of various kinds; but on these we need not further dwell.

CHAPTER V.

THE RIGHTS OF MARRIAGE.

176. We have already pointed out (47) that one of the most powerful Springs of action in man is the Desire of Family Society, which grows out of his Appetites and Affections. The needs of man's condition so operate, that he cannot exist in a social and moral state, except there be, established in Society, Rights which sanction and protect the gratification of this Desire. Such Rights, with the corresponding mutual obligations, are given to the Husband and Wife, united in a legitimate Marriage; and the Rights

* Grot. P. et B. II. 16.

thus vested in the Husband, and in the Wife, are the Rights

of Marriage.

Marriage and Property are termed Institutions; inasmuch as they imply the establishment of General Rules, by which, not only the special parties are bound, (as in Contracts); but by which the whole Society also is governed. These two Institutions are the basis of Society. The Right of Personal Security is requisite, in order to preserve a man from hour to hour, and from day to day; the Institution of Property is requisite, in order that man may subsist on the fruits of the earth from year to year; the Institution of Marriage is indispensable, in order to the continuance of the community from generation to generation.

177. The Desires and Affections, growing out of the Institution of Marriage, tend to balance the action of the elementary Desires and Affections, and to maintain man in a moral and social condition. The Elementary Desires and Affections, which lead to the Union of the Sexes, are refined and tranquillized by the marriage tie. The Mutual Confidence, and the identification of habits and interests between husband and wife, which marriage, in its most complete form, tends to generate, give a new charm and a new value to life. When such a conception of a happy married life is formed, it is universally approved of; and thus the Moral Sentiments confirm the Conjugal Affections. Each successive generation of young persons, catching the like sentiments, and susceptible of the like affections, looks with hope and desire to this image of a happy marriage, as an important part of the business and object of life. Thus there is produced a National Sentiment respecting Marriage, which makes the Institution still more efficacious in its influence upon the moral and social condition of those among whom it prevails.

178. The Children which Marriage produces give

rise to Affections which still further tend to bind together the Community by Moral and Social links. In the first period of their existence, Children are a common object of Affection to the parents, and draw closer the ties of their mutual Affection. Then comes the Education of the child; in which the parents have a common care, which further identifies their sympathies and objects. The Brothers and Sisters of the child, when they come, bring with them new bonds of affection, new sympathies, new common objects. The habits of a Family take the place of the wishes of an Individual, in determining the habitation, the mode of living, the meals, and the like; and thus, these circumstances are determined by influences, more social and more refined than mere bodily desire. The Family is one of the most important elements of the social life of every Community.

Familia is the word by which the Romans denoted the persons thus collected in the house, along with their parents: and also, along with the servants of the House. (Famuli) The head of the family was called Paterfamilias; his wife was Materfamilias.

179. The nature and extent of the Rights, which Marriage gives, have been different in different ages and countries; and the national conception of the conjugal bond has often fallen short, in various degrees, of that complete and permanent union of one man with one woman, which we have pointed at. Polygamy, Concubinage, and arbitrary Divorce, have been tolerated in many States; but still, the notion of a complete Marriage appears always to have been, the union of one Husband and one Wife for life. Although Polygamy existed in the earlier periods of the Jewish nation, we find, in the Scriptures, that, beginning with man, at his creation, a single woman was given to him as his helpmate. And though Solomon is related to

have had many wives, as the custom of Asiatic Sovereigns has generally been; in the description of a good wife which is inserted in his Book of Proverbs*, she is represented as sole mistress of the household, and as the object of an entire trust and respect, inconsistent with her being one of several wives. And though Moses permitted to the Jews more than one wife, he prohibited many†; which "many" is believed by the Commentators to be more than four. This permission was rather a concession to an existing practice, than a law consistent with the general scheme of the Laws of Moses. The practice of polygamy is said ‡ to have ceased entirely among the Jews after the return from the Babylonish Captivity.

180. Polygamy was not a Grecian practice. The Heroes of Homer appear never to have had more than one aλoxos; though they are sometimes represented as living in concubinage with Taλλakάi. According to the views of Greek Legislators and Philosophers, Marriage was to be considered as having for its object the maintenance of the State, by the continuation of the race of citizens: and we see, in the Republic of Plato, and elsewhere, indications that they could tolerate extravagant deviations from the more complete domestic conception of marriage, if the political object was provided for.

66

181. The Roman Law, however, approached closely to the conception of a complete marriage, which has been noticed. The Definition given in the Institutes is this § Nuptiæ, sive Matrimonium, est viri et mulieris conjunctio, individuam vitæ consuetudinem constituens." In another place it is described as "Consortium omnis vitæ divini et humani juris communicatio."

:

* Prov. xxxi. + Deut. xvii. 17. Mich. Law of Moses, 11. 12. § Inst. 1. 9. Marriage or Matrimony is the union of a man and a woman so as to constitute an inseparable habitual course of life.

|| Dig. xxIII. 21. A partnership for life, with a joint participation in all Rights human and divine.