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| Tuesday February 8. 1763 - Adam Smith, Glasgow Edition of the Works and Correspondence Vol. 5 Lectures On Jurisprudence [1762]

Edition used:

Lectures On Jurisprudence, ed. R.. L. Meek, D. D. Raphael and P. G. Stein, vol. V of the Glasgow Edition of the Works and Correspondence of Adam Smith (Indianapolis: Liberty Fund, 1982).

Part of: The Glasgow Edition of the Works and Correspondence of Adam Smith, 7 vols.

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Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


| Tuesday February 8. 1763

In yesterdays lecture I gave you some account of the origin of the perpetuity of marriage, and also of the power of divorce which was generally supposed to be possessed by the husband.33 The wife amongst the Romans in the earlier times of the commonwealth was absolutely in the husbands power; the marriage was made either by the religious ceremony of confarreation which produced that effect, or else by the coemptio, a civill one by which the husband bought her as a slave, or lastly, the husband by possessing a woman constantly for a year and day prescribed her in the same manner as any moveable subject; for this was also the time in which moveables, and at first indeed immoveables, were prescribed amongst the Romans.34 By these means she came either into the place of daughter or slave, which was in effect the same. Therefore as the master of a family had the power of chastising his [his] children or slaves, even in a capitall manner as shall be shewn hereafter, either by inflicting a punishment upon them or by burning35 | them away, so he had the same power over his wife. But as a daughter or child had not the power of leaving his fathers family and manumitting himself when he inclined, nor a slave of running away or leaving his masters house without his consent, so neither had the wife the power of leaving and seperating from her husband. Besides, as I observed before,36 the government is at first in all nations very weak, and very delicate of intermeddling in the differences of persons of different families; they were still less inclined to intermeddle in the differences that happen’d amongst persons of the same family; on the other hand, that some sort of government might <be> preserved in them they strengthend the authority of the father of the family, and gave him theq power of disposing of his whole family as he thought proper and determining with regard to them even in capitall cases. By this means the father possessed a power over his whole family, wife, children, and slaves, which was not much less than supreme. So that tho the husband had the power of divorce, the wife had not.

| In time however this came to be altered, the reason of which I before hinted at. In the earlier periods of Rome, when there was but little wealth in the nation, the fortune a woman could bring to her husband or could possibly be in possession of was not so great as to entitle her to capitulate or enter upon treaty with her husband; she was content to submit herself to the power of the husband. But when the state became exceedingly rich, therer would be very rich[es] heiresses who brought great fortunes along with them, as happens in every country nowadays; and as Rome was much richer than this country so the wealth of the heiresses was proportionably greater. It seems to have beens originally in favours of such ladys that the new marriage wast introduced. The relations thought it hard to allow so great a fortune to go out of the family and be transferred to the husband, who acquired also a very great authority over the wife. {But as heiresses incline to take a husband [as husband] as well as other women, they, etc.} They therefore contrived a new sort of marriage in which none of the old forms, neither the religious nor civill one, were used. The instrumenta dotalia which | corresponds to what we call the contract of marriage were drawn up, in which the husband was specified to have the managementu of the wifes money, at least of the interest of it, for the mony was often consigned into some other persons hands. {The husband after this came to the wifes house and took her home with some solemnity, which was called domum deductio.} The wife however did not come into the power of her husband, nor was indissolubly join’d to him. And least she should be prescribed and by that means herself and her fortune belong intirely to her husband (as every thing of a slave did), and the whole effect of the contract be in this manner dissanulled, she was advised to seperate herself from her husband for 3 or four nights every year. This sort of marriage, tho it had none of the old solemnities, was found by the lawyers to save the ladys honour and legitimate the children.— After this time the husband and the wife came to be much more equall in their power; as the marriage was entered into merely by the consent of the parties, so it was dissolved without near so great difficulty as the marriages formerly contracted had been. The consent of both parties or even the will of one <?was sufficient> to dissolve the | marriage. If the husband left her and cohabited with an other woman, the wife was at liberty as before the marriage. This great liberty of divorce on the smallest occasions continued from the latter part of the Republick till a short time before Justinian, when by a rescript of the Emperors Valentinian and Theodosius divorce was allowed only on certain conditions.37 But Justinian restored the former unbounded liberty.38 As this liberty was a consequence of the new form of marriage, the old forms were laid aside almost intirely; the latter one was found to be much more convenient and better adapted to the licentiousness of the times. {It was exactly similar to the condition of a man and his mistress in this country, only that the womans honour was safe and the children legitimate. The cohabitation and connexionv was intirely voluntary as long as it continued.} It alone therefore was used; so that Tacitus39 tells us that when a certain office of the priesthood was to be supplied in which it was necessary that the person admitted should be born of parents married by the old forms, there were none such to be found in the city. This license of divorce was productive of the worst consequences. It tended plainly to corrupt the moralls of the women.w The wives often | passed thro 4 or 5 different husbands, which tended to give them but very loose notions of chastity and good behaviour. And as this was frequently practised by women of the highest stations and most conspicuous rank in the whole state, the corruption could meet with no opposition. Ciceros daughter Tullia, whom her father celeb<r>ates as one of the sweetest manners, greatest virtue and chastity, and in a word as poss<ess>ed of all the female virtues, was married 1st to Piso, 2dly Crassipes, then Dollabella, and then to a 2d Piso;40 and many other instances are to be met with in the Roman history. Hence it was that female chastity was so rarely to be met with. For tho the anecdotes and annalls of the private life of the Romans at that time have come down to us in a very imperfect manner, yet there is hardly a great man in the end of the Republick who is not a cuckold upon record. Cicero, Caesar, Pompey, Marc Antony, [Pompey,] Dollabella, etc., etc. are all reckorded in this character. Milo, a very strict sort of man, married the daughter of Sylla, and the day after the marriage was celebrated | found Sallust the historian in bed with her.41 This licence of divorce met with no interruption in the time of the emperors till the constitution of Theod. and Valentinian above mentioned, which was also abrogated by Justinian. After his time it continued probably in the eastern Empire, for [tho] Justinian tho he conquered the western and kept possession of it for some time was properly an eastern emperor, <?and it> continued after thatx in full force as long as the Empire subsisted. In the western Empire it was much sooner abolished. The savage nations which issuing out from Scandinavia and other northern countries overan all the west of Europe were in that state in which the wife is greatly under the subjection of the husband. By the small remains of the laws of those nations which have come down to our hands, this seems to have been very much the case. The husband had then a very great authority over her and was allowed divorce in the same manner as formerly amongst the Romans, | but the wife had no power of d<i>vorcing the husband. This was greatly strengthened by the introduction of Christianity, which was very soon received amongst them. They were then in that state which made them regard their priests not only with respect but even with superstitious veneration.—They laws of mostz countries being made by men generally are very severe on the women, who can have no remedy for this oppression. The laws however introduced by the clergy, and which were soon receivd by these barbarous and ignorant and consequently superstitious people, tended to render their condition much more equall. The first step which was taken was to curb the licence of divorce which was as we have seen very great. This was at first limited to certaina cases; these were the infidelity of either of the parties or the great cruelty of the husband, asb this will be the most common case (ob saevitiam et mortis metus<)>. The effect of divorce was that the parties were considered as if they had never been married, and were at liberty to take a husband or wife | after the divorce. But in some farther time no divorce was allowed. The only cases in which those who had been married were allowed toc marry after being divorced were in such cases as the marriaged would have been null from the beginning, as 1st, when the marriage was within the prohibited degrees of consanguinity, which were extended far beyond their former limits by the clergy so that it often happened that persons might ignorantly marry in a prohibited degree. These marriages were either altogether null or were indulged by a particular licence from the Pope or other clergy; and 2dly, on account of the frigidity of the husband and the incapacity of generation, not the barreness of the wife; for in these cases also the marriage was null from the beginning. {Or of a previous contract to another woman either in praesenti or in futuro in the case afterwards mentioned.} Separation was however allowed on two accounts, either on the infidelity of the parties, or ob saevitiam et mortis metum, as in these cases there would be an evident hardship in compelling them to live together. But there was however no allowance of marriage on this account after seperation, | and any one who married them, and they themselves, was supposed to commit adultery. There was also another great change introduced by the constitution of the clergy. Before this time the infidelity of the wife was reckoned a great breach of the conjugall duties and was allowed to be punished by him, even with death, and hade the name of adultery given it. On the other hand the infidelity of the husband was not accounted adultery; it was called petticatus42 and in this he had all freedom, being no way accountable for it. {Indeed in the times of the later marriages they would be more carefull to conceal these transgressions, as the wife had the power of divorce as well as the husband.} This according to thef account generally given of the punishment of adultery, viz that it was to prevent a spurious ofspring being imposed upon the husband,43 might appear somewhat reasonable, but that as I endeavoured to shew44 it is the jealousy of theg parties, which allways attends the passion of love when society is the least refined, in which the publick goes along with the injured party; and this is equally common to the husband and the wife, as it shews the allienation of the | affection from the one as well as the other. The real reason is that it is menh who make the laws with respect to this; they generally will be inclined to curb the women as much as possible and givei themselves the more indulgence. The clergy were much more impartiall judges. The former legislatorsj were husbands and consequently a party concerned; but as the priests were not husbands, not being allowed to marry, they were the best qualified that could possibly be for the office of judge in this matter. They accordinglyk set them in this respect perfectly on an equall footing. The infidelity of the husband as well as the wife was accounted adultery and might produce a separation. {And it was for some time punished not as adultery but as a perjury.} The licence of divorce was as we observed greatly curbed and put at the same time on an equall footing with regard to both. {The husband and wife were put alltogether on an equall footing in allmost all respects. This, on the principle I have endeavoured to explain, may be very equitable, as the injury to the jealousy of the woman is [v.16] no less grievous than to that of the man. But still as in allmost all contracts of marriage the husband has a considerable superiority to the wife, the injury done to his honour and love will be more grievous, as all injuries done to a superior by an inferior are more sensibly felt than those which are done to an inferior by one whom they look upon as above them.} The laws in England with regard to divorce are on the very same footing in most respects [the same] with those of the cannon law. One cannot obtain a | divorce in any way but by an Act of Parliament, which is absolute and can do any thing. But by a suit at Drs. Commons, which comes in place of the ecclesiasticall court, {In Scotland divorce is granted to the dalys45 for infidelity by the commissaries, who come in place of the ecclesiasticall court. The clergy after the Reformation, being not confined to celibacy but allowed to be husbands themselves, were perhaps on this account[s] more indulgent. The popish clergy had before allowed a separation on this cause.—} a separation is all that can be obtaind,46 which the clergy who made the laws on this head as strict as possible found it necessary to grant, but would not allow the liberty of a posterior marriage, as a punishment to the offenders.— — —

For some time after these regulations with regard to marriage took place there was no great ceremony required at the commencement of it; the hierologe47 was not required till the time of Pope Innocent the iiid. Before that time, as the old forms of confarreatio and coemption were laid aside, thel form which they used was much the same as that of the new marriage amongst the Romans before Christianity. There was no more required than the mutuall consent of the parties, either before witnesses or not. The one asked the other if she inclined to be his wife, | and she replied yes, and I take you for my husband. The husband afterwards went and brought her home to his house, and no other form was required. Innocent afterwards required that these declarations should be made in facie ecclesiae, the manner much such as that now in use, by solemnly proclaiming the bands of marriage betwixt such and such persons. However after this was required as the only regular sort of marriage as it is at this day in all Christian countries, the other method by consent was not altogether without its effect, insomuch that a previous one by contract alone, that is, a previous irregular one, broke one made in facie ecclesiae. In this however there was a distinction. If the marriage or agreement was in praesenti, that is, if the parties agreed to be husband and wife from the time of the agreement, I take you for my wife or I marry you and the other agree’d, this made even a subsequent marriage in facie ecclesiae of no effect, altho consummated; the parties being still <?liable> | to ecclesiasticall punishment, as for incontinence, for all irregular marriages.—But if it was only a promise of marriage or a contract in futuro, this if it could be provedm by witnesses or by the oath of the party pursued brought marriage, and might prevent a subsequent one (especially copula interveniente) in facie ecclesiae, but if it was completed could not annull it. This was the case in England till the late Marriage Act,48 which makes no promise of marriage nor any irregular one whatever of any effect. In Scotland any marriage of whatever sort in praesenti, where the mutuall consent is declared before any Justice of Peace or comissarie, or any other way,n is sustain’d as valid. If they be in futuro, if they be saido by the one party and not refusedp by the oath of the other they are validq si copula intervenerit and this be proved in the ordinary way, viz the birth of a child; but the pa<r>ties are still liable to ecclesiasticall censure.— — —

r Marriage came by these means | to be almost indissolluble. There was a very great change introduced by this means into the character and regard which was had to the passion of love. This passion was formerly esteemed to be a verys silly and ridiculous [and] one, and such as was never talked of in a serious manner. We see that there is no poems of a serious nature grounded on that subject either amongst the Greeks or Romans. There is no ancient tragedy except Phaedra49 the plot of which turns on a love story, tho there are many on all other passions, as anger, hatred, revenge, ambition, etc. Nor does it make any figure in epic poems. The story of Dido50 may be called a love story, but it has no effect on the procedure of the great events, nor is it any way connected with them. The poem indeed rather thwarts love as betwixt Lavinia and Turnus;51 for we can not say that there was any love betwixt Aeneas and her as they had never seen one another.— | The Iliad we may say turns upon a love story. The cause of the Trojan war was the rape of Helen, etc., but what sort of a love story is it? Why, the Greek chiefs combine to bring back Helen to her husband; but he never expresses the least indignation against her for her infidelity. It is all against Paris, who carried away his wife along with his goods. The reason why this passion made so little a figure then in comparison of what it now does is plainly this. The passion itself is as I said52 of nature rathert ludicrous; the frequency and easieness of divorce made the gratification of it of no great moment: it could be to day, it might <be> to morrow, and if not this year it might <be> the next; and one might find another object as agreable as the former. The choice of the person was of no very great importance, as the union might be dissolved at any time. This was the case both amongst the Greeks and Romans. But | when marriage became indissoluble the matter was greatly altered. The choice of the object of this passion, which is commonly the forerunner of marriage, became a matter of the greatest importance.— The union was perpetuall and consequently the choice of the person was a matter which would have a great influence on the future happiness of the parties. From that time therefore we find that love makes the subject of all our tragedies and romances, a species of epic poems till this time. It was before considered as altogether triviall and no subject for such works.— The importance being changed, so also the figure it makes in the poeticall performance. It is become from a contemptible a respectable passion as it leads to a union of such great importance, and accordingly makes the subject of all our publick entertainments, plays, operas, etc. In those of Greece or Rome it never once appeared.

This is the generall account of marriage | in Rome and the European nations. Divorce amongst all rude nations is considered as in the power of the husband but not of the wife. The Romans afterwards extended this to both parties equally; and lastly the clergy took it away in all cases, unless where the marriage was null from the beginning.

I shall now proceed to consider another species of marriage very different in many respects from the former, viz that where one man is allowed to have a considerable number of wives. As in Rome and Greece, so inu all the modern European nations one man is confined to one wife; plurality of wives is not allowed, neither where voluntary divorce takes place or when it does not. But both in the ancient and in modern times polygamy has been allowed in many places. In all the eastern countries, particularly the East Indies, in Persia[n] and in Turky andv Egypt and other countries formerly, polygamy to any extent a man inclines and can afford it is allowed.— We may observe in the first place, as is very justly taken notice of by Grotius,53 that there is notw any | reall injustice either in voluntary divorce or in polygamy in those countries where they are allowed by the laws of the country, tho, as I shall by and by shew, they are very inconsistent with a well regulated police. For with regard to voluntary divorce, there can not be said to be any injustice done to the person who is turned away in this manner. The practise is allowed by the law, and therefore when the wivesx enter into this agreement it is during pleasure of the husband. They agree to live together as long as he shall find it convenient; their living together, when they continue to do so, is voluntary, and when they seperate it is on those conditions on which they came together.y In the same manner where polygamy is allowed, as it has been and is in many countries, there can be no injustice in taking a wife in that manner. Where voluntary divorce is allowed, the wife is taken on the condition that the husband may turn her off when he pleases, and this is known to her. In the same manner when poly|gamy is allowed, the wife is taken to be one of 4, 5, 10, 20, 100 wives; this is the condition, and there can not be said to be any injury done her when she finds herself in that situation. But altho there is not any injustice in the practise of polygamy where the law permits it, yet it is productive of many bad consequences.

We shall consider 1st what will be the condition of the female part of a family in which this is practised. They, it is evident, must look upon one another with the greatest jealousy; they share his affection amongst them, and must do all that they can to supplant their rivalls. Continuall discord and enmity, the naturall consequences of rivallship, must prevail amongst them. They are rivalls and consequently enemies, and this rivallship is of a nature which generally produces the greatest enmity and most unsufferable discord. These in the greatest degree must therefore attendz polygamy with regard to the wives, from the jealousy they have to one another of their husbands love. Besides this there is another cause | of continuall discord and jealousya amongst them. The affection of the husband must here be greatly divided, not only amongst his wives but amongst their children; a man who has ten or twenty wives may have 50 or 100 children amongst whom his affection is divided, and consequently can not be very strong with regard to any particular one. The affection of the wives again will be entirely confined to her own children. She perhaps is the mother of 5 or 6 children; on these all her affection, all her care and concern, is bestowed. She is concerned alone for their interest and advancement. Her affection therefore to her children must be immensely stronger than the feeble and divided affection which the husband can feel for the children of any one.54 — In all cases where there is another person equally connected as we are with an object of our affection, we measure his affection by that which we ourselves feel. When therefore the mother compares the affection she feels towards | her children with that ofb their father who stands in the same relation to them, the great disproportion there is betwixt them raises her jealousy in the greatest degree. She is concerned for the interest and advancement of her own children only, and is therefore at pains to drawc all the affection of their father towards them, and looks on all the other wives and their children as her rivalls and opposers.d The others look also on her in the same light. The jealousy of love and that of interest both conspire to raise the discord, enmity, confusion, and disorder of such a family to the highest pitch. We are told indeed that in the seraglios of the great men of the Turks, the Persian<s>, and Mogulls there is the greatest tranquillity and the greatest humility and resignation amongst thee women. But this apparent tranquillity, for it is only apparent, is that which proceeds from severity and hard usage. Rebellious subjects when | reduced into order are the most abject and humble of any; and unless it be in the very act of rebellion they appear to have the greatest tranquillity and submit with the utmost readyness to the will of the master. This is the very case in all these countries. As there can be only a few who are in a capacity of maintaining a vast number of wives, so there must be a great many who are utterlyf debarred from all commerce with the other sex, unless it be in the publick stews. Many of these, to render them fit for the office they are intended, are even degraded from the rank of men and made eunuchs. Their business is to attend in these seraglios and keep the women in proper order. For this purpose they are allow’d to treat them with the utmost severity and exercise all the tyranny over them which they think proper. It is this abject subjection alone which produces the apparent tranquillity which is to be found in all the seraglios of the | great men. We see accordingly that this tranquillity is only to be found with those whose wealth enables them to maintain a set of eunuchs for this purpose. In Turky there must beg many men of this sort residing at all the chief towns, as Smyrna, Constantinople, and Cairo; and in the east, as the riches is still greater, there is still less disturbance amongst them at Ispahan and Bdelli55 and Agra; and as the Mogulls are still richer than the Persians, so they are the better able to maintain these masters to their wives; and the Chinese still more so. In these indeed we find very little disorder and a great deal of apparent tranquillity. But on the other hand in all the countries on the coast of the Mediterranean Sea, and in many places in Turky, where the wealth of the people is not such as can afford these servants, the utmost confusion, disorder, discontent, and unhappiness is altogether | apparent.—h

The misery of these women must be greatly increased by other circumstances. The only companions they are allowed to have are those which of all others will be the most dissagreable. No one is allowed to see the women in these countries but the eunuchs who attend them. The jealousy of the husband debarrsi all other communication. The only persons they can see, then, are eitherj those tyrannicall masters, which can not be very agreable, or tho it may be more so than their other companions can not be much possessed by any one, as they must be continually going from one to the other in order to preserve peace amongst them. Besides these they have none to converse with but the other wives or concubines in thek seraglio, whose company must always be rather dissagreable than otherwise. For what harmony, friendship, or enjoyment <?can there be> | amongst those who are jealous of each other and rivalls in the most tender points?— The condition of the female part of these families is then without question most wretched, and exposed to the greatest envy, malice, hatred, and disorder, confusion, etc., etc., etc., etc., etc. imaginable. We will find that that of the male part is not much more desirable. Those who are degraded from the rank of men and deprived of all the opportunities of happiness are not the persons we are to consider. But we will find that even the master of this seraglio, this happy man to appearance, is not much more agreably situated. For in the 1st place he will be racked with the most tormenting jealousy. For tho in those countries one who keeps only one wife has never the least suspicion of her nor the least jealousy, yet when they have any great number they are sensible that in this case the women can not have great reason to be faithfull to them. They enjoy but a very small part of | their affection, which must be divided amongst the whole; or if it be any way partially bestowedl the others are the still more dissatisfied, and his jealousy will of consequence be heightened. His affection to his children can be but very small, being divided amongst such a great number; this too is productive of the greatest discontent, as he can never satisfy any of his wives with the share of his affection he bestows on their children, which as I observed must be always greatly disproportioned to that which they expect. By this means he has no enjoyment in the exercise of the parentall affections, but a great deal of anxiety, jealousy, and vexation. He can also have but very little conjugall affection, but a greater share of jealousy than any other man has. The jealousy they entertain of their wives deprive<s> them also of the free communication and society which is enjoyed in this country and in most others where polygamy is not allowed. It hinders them | altogether from receiving one another in their houses, through fear of their getting a sight of or corrupting their women. They are jealous even of the imaginations; a Turk would take it very ill if you should ask him concerning his wife or even mention her in any shape; they must behave as if there was no such person in the world. {Even the physicians themselves are not admitted to see the women, their patients. Mr. Tourneforte56 tells that being at Ispahan, where they are still more cautious and circumspect in this respect than in Turky, he was called to visit the wives of a certain great man; he was carried into a room where there were a number of scrolls put thro’ the wall telling the person, etc., and he was allowed to feel their pulses thro holes in the wall, but did not see one of them.} By this means there can be no friendship or confidence in these countries betwixt the heads of families. They are by this means altogether incapacitated to enter into any associations or alliances to revenge themselves on their oppressors, and curb the extravagant power of the government and support their liberties. We see accordingly that all the countries where polygamy is received are under the most despotic and arbitrary government. Persia, Turky, the Mogulls country, and China are allso. They have no way of making any opposition, so that the government soon oppresses them and they can never again recover. And as the goverment is arbitrary so | the heads of the families are entrusted with the most absolute and arbitrary authority that possibly can be. The whole of the family is at their disposall, both their wives and their eunuchs, as it would be impossible otherwise to preserve order in the state.— By this method of living it necessarily happens that a great number of persons must be intirely incapacitated to have wives and families, for in all countrys of this sort they pay a price for their wives instead of receiving a dower; and many of these are made eunuchs in order to attend on the wives of the others. But altho they had sufficient stockm to maintain their wives, yet it will still happen that the number of women will be too small; the wealth<y> will deprive the others altogether.

It is advanced indeed in favours of polygamy by Montesquieun57 on the authority of Blank in MS.o that at Bantam, the capitall of the island Java, there are 10 women born for one man; and a Dutch author58 tells us that on the coast of Guinea there are 50 | women for one man. In Europe we are certain that the proportion is very different. It is generally thought that <there> are about 12 women to 13 men, and others say that there are about 16 to 17, and that proportion appears certainly to be hereabouts from the bills of mortality which are kept in different parts of Europe. So that here there is a man to be lost, in war or otherp hazardous labours, out of 13 or 17 before they can all have one wife. It is not probable or to be believed without good foundation that the laws of nature vary so much in other countries. We see that the laws of nature with respect to gravity, impulse, etc. are the same in all parts of the globe; the laws of generation in other animalls are also the same in all countries, and it is not at all probable that with regard to that of men there should be so wide a difference in the eastern and the northern parts. We are told that at Macao, the capitall of Japan, when the inhabitants were | numbered there were found about 11 women to 9 men.59 This indeed would be a disproportion to the prejudice of the women, but would not be sufficien<t> to establish polygamy as there would not then be two wives, far less 30 or 40, to one man without cutting out a great number. This fact we are indeed pretty well assured of, as it was found so on a publick numbering of the people. But then it does not even establish that there was so great a disproportion as it appears to do. For we are to consider that as this was the capitall of the country, in which the head man of their religion resided who alone had 500 or 600 wives, and many other rich men who would no doubt have considerable numbers, there would be collected here a number of women which might well be supposed to make this disproportion, altho in the other parts of the country they were born in the same proportion as in Europe, which is very probable. | This is the only fact which is well attested, for we have never heard of any bills of mortality being kept in those countries of which this is related. The two facts above mentioned on which Montesquieu ground<s> this argument are not at all well ascertaind. They are taken on the authority of two Dutch skippers, the one of whom was about a year on the coast of Guinea trading from one place to an other, and in this way he might from what appeared to him have wanted to believe that Wn:Mn::50:1. The other was about 2 or 3 months at Bantam, and the greatest part of that time on ship board, so that in that capitall they might have appeared to be as 10:1. {If this was realy the case it would be altogether proper that polygamy should take place. The inconveniencies above mentioned would follow, but for that there would be no remedy as the thing would be necessary where such a law of nature took place.}

It is ascerted also as an argument in favours of polygamy60 that in the warmer climates the women loose there beauty much sooner than they do in this country, and that at the time when their beauty [and] would render them fit to be the object of affectionq | their weakness and youth render them all together unfit for being the objects of his confidence and proper to be put on an equall <?footing>, as this time is past before the other comes. And on the other hand when their sense and experience would render <them> fit for this, their want of beauty and incapacity of bearing children counterballance it. They tell us that the women in those countries ripen much sooner than in the northern ones, that they are fit for marriage by 7 or 8 and leaver bearing children in 20th or thereabouts. Now this fact is not better ascertained than the former. We are told indeed that they have children by 11 or 12 years of age, and so would many women in this country as well as in the southern ones. It is said thats Mahomet married his wife Blank in MS.61 at 5 and lived with her at 8. But this has probably been no more than the rape of an infant, which aret but too common in more northern climates. On the other hand there is no certainty that they | cease to bear children nearly so soon as is alledged. We find that Cleopatra, an Aegyptian, at the age of 36 when the women are past the prime of their beauty even in this country, had charms enough to retain Antony, a man generally very fickle, so as to bring on a separation with Octavia and his ruin; and about a year before this she had born a child. Blank in MS.62 queen of Naples had a child when she was 56; this indeed was reckoned a wonder there, and so it would here. And as the thing was so extrao<r>dinary, and the child to heir the crown, she got a tent erected in the middle of the street and was brought to bed in the presence of the people, that there might be no suspicion of fraud. But altho it was realy the case that the time in which a woman was capable of bearing children and being a proper companion for a man was limited to betwixt twelve and 20, this would not at all require the | establishment of polygamy. It might indeed require voluntary divorce, that the husband, after the woman was incapable of being a proper companion for him, should have it in his power to put her away and take another, but it could never require that he should have more than one who were fit wives at the same time. But the strongest argument of any against the aforementioned opinion that the women are born in greater numbers than the men in the eastern countries, is the constant importation of women into Constantinople, Smyrna,u Agra, and other towns, from Georgia, Circassia, and other countries of Asia where polygamy is not allowed, or not practised in such extent. And as this is continually going on, it shews that altho a vast number of men are deprived of their wives, yet even by this there are not enough to supply the seraglios. The conquests of barbarous and savage nations is what has given | rise to this in all nations where it is practised. It is very common in most savage nations for the leaders and chief men to have 2 or 3 wives. When such a nation conquers an other the savages will be very apt to indulge themselves in their brutall appetites, and atv this timew the leaders and other chief men have it in their power to take 10 or 20 wives instead of 2, and by this means polygamy has been introduced by the savage nations into all countries where it is to be found. The Tartars, a savage nation, have overrun all Asia severall times and Persia above 12 times. The conquest of the Turks, who are properly Tartars, with some Moors, introduced it into Greece.— — —

Polygamy is prejudiciall to the liberty of the subject, not only as it prevents all associations and friendship amongst the heads of families by the jealousy it occasions, but also by the absolutely preventing the existence of a hereditary nobi|lity. When a man who is placed in an eminent station leaves behind him but three or four children, these may be all in a capacity to maintain their fathers dignity, or atx least one, where the right of primogeniture takes place, may fill his fathers place in most respects. Those who were connected with the father can easily and naturally continue their affection to the son. The persons who are connected with those we esteem come into their place in our affectio<n>, and this when they are but few in number may extend to the whole, or be greatly fixed on one who comes into his place. But where polygamy takes place the children may be so many that the connection with the father makes but little impression on us, our affection being divided amongst so great a number thaty it will hardly be productive of any effect. Nor is there here any one distinguished amongs<t> the children of different wives, and so great a number, above the rest. When a bashaw dies, therefore, his children are no more regarded than those of the meanest person, | and they themselves often fall back into the lowest stations.z There is not the least regard paid to one on the account of his being come of one who had possessed that dignity; if one of these raises himself to the offices of the state, the respect that is held him proceeds intirely from that new station. There is accordingly no family that is considered as noble or any way distinguished from the rest exceppt the royal family; a haereditary nobilitya is never heard of amongst them. Now we will find that it is this which chieffly supports the liberty and freedom of the people. It is absolutely necessary that there should be some persons who are some way distinguished above the rest and who can make head against the oppressions of the king, or head the people when they are in danger of being oppressed by foreign invaders. Both these ends we see have been answered by the nobility in France and England. | But in those countries where there is no nobility the people have no head to attach themselves to. The whole defense of such a country against a foreign invader must be made by the standing army, but if it be once beat the people can never after make any opposition. We see accordingly that Alexander by two victories made himself master of the greatest part of Asia then known. The same had been done by Cyrus before him. The two great conquerors Tamerlane and Cengis–Kan obtaind their empires by two or three victories. The people here after their first defeat had no persons whom they could pitch on for their leaders. The divisions and disorders which afterwards arose proceeded from the conquerors, and not from any struggles of the conquered. The empires of Tamerlane and Cengis–Kan were split immediately after their deaths, but it was amongst the Tartar chief<s> | who accompanied him. The empire of Alexander was in like man<n>er soon divided, not by the disputes or discontents of the Persians or other nations whom he had conquered, but by the rivalship of his captains. The empire of the caliphs was in like manner split in a short time after the death of Mahome[n]t, not by the efforts of the effeminate and dastardly people whom he had conquered, but by the rivalship of the savage Arabians. They have neither power to resist the invaders after the 1st defeat, nor can they have any way to shake off the yoke when they are once subjected to the dominion of an absolute monarch, as those generally must be who govern these people. On the other hand where there is a nobility, tho the country be conquer<ed> and over run by foreign troops yet they can make repeated attempts to recover there liberty; we see accordingly that tho France has been severall times over run by the English they have as often shaken off the yoke. | Germany is every 10th or 12th year almost totally possessed by the troops of foreign states, but no city everb remains with the conquerors. Hungary has been often conquered by the Turks, but was never long in their possession as they had heads to join themselves to in their attempts for liberty.— Besides all these inconveniencies it must certainly be detrimentall to the population of the country. Forc there must be a great number who have no wives; now there would certainly be a much greater probability of a great number of children being born when the women were divided equally than when they were confined to a few. 100 women married to as many men would in all probability have many more children than when they were all belonging to one man. This may possibly be the reason why Persia, and the countries of Gre<e>ce, and those on the African coast, which were formerly very populous, are now but very thinly inhabited. There are indeed some countries | where polygamy has been admitted which are still remarkably populous. The countries on the banks of the Nile and the Ganges, and besides these China, all ared instances of this. But then the populousness of a country is no sign that all the regulations tend to produce that end. For there may be other circumstancces which more than counterballance that hindrance. These countries are all remarkably fruitful. The banks of the Nile and the Ganges are overflowed by those rivers, and yield immense crops, 3 or 4 in a year. This as there must be plenty of food and subsistance for man must, for reasons I will afterwards explain, promote population, as the number of men is proportion’d to the quantity of subsistence. This is also the case with regard toe China, and there may also be other reasons with which we are unnacquainted. We see too, on the other hand, that regulations that tend to population do not always produce that effect. Thus the law of marriage in Scotland evidently appears from | the reasons already mentioned to tend to population, yet it has not the effect, being counterballanced by the other obstacles, as the barreness of the country and difficulty of subsistence.f

[33 ]Most of this was presumably in the passage missing before 6.

[34 ]Cf. i.80–1 above.

[35 ]Sic. Presumably ‘turning’ was intended.

[36 ]ii.95,152 above.

[q]‘wh’ deleted

[r]Replaces ‘it’

[s]‘first’ deleted

[t]‘first’ deleted

[u]Replaces an illegible word

[37 ]C. 5.17.8.

[38 ]In fact he penalized those who divorced without cause, although the divorce itself was valid; cf. Montesquieu, XXVI.9.

[v]Reading doubtful

[39 ]Annals, IV.16.

[w]‘insomuch that’ deleted

[40 ]Tullia was divorced from Dolabella in 46 b.c. and died the following year without any further marriage.

[41 ]Aulus Gellius, XVII.18; Scholiast to Horace, Satires, I.2.41–8.

[x]‘at least till the introduction of Christianity’ deleted

[y]What appears to be the letter ‘c’ (perhaps standing for ‘civil’) is interlined here

[z]Reading doubtful

[a]‘condi’ deleted

[b]Reading doubtful

[c]‘take’ deleted

[d]Replaces ‘divorce’

[e]Reading doubtful

[42 ]Probably peccatum (or peccatus), ‘sin’, ‘failing’, was intended.

[f]‘generall’ deleted

[43 ]Montesquieu, XXVI.8.

[44 ]Probably in the passage missing before 6. Cf. LJ(B) 103, below.

[g]‘husband’ deleted

[h]‘and husbands’ deleted

[i]Reading doubtful

[j]Replaces ‘judges’

[k]‘allowed’ deleted

[45 ]Sic. Probably a scribe’s error, by metathesis, for ‘ladys’.

[46 ]Separation a mensa et thoro was granted by the ecclesiastical consistory courts, which sometimes sat at Doctors Commons, the college of Doctors of Civil Law.

[47 ]The proclamation in church: Decretals 4.3.c. 3 (1215); not actually essential for the validity of the marriage.

[l]Illegible word deleted

[m]Illegible word deleted

[48 ]26 George II, c. 33 (1753) made marriage contracts no longer enforceable in the ecclesiastical courts.

[n]‘declared’ deleted

[o]Reading doubtful

[p]The last two words replace ‘proved’

[q]Two or three illegible words deleted

[r]‘Thus’ and an illegible word deleted

[s]Illegible word deleted

[49 ]Smith may mean either or both of Euripides’ Hippolytus and Seneca’s Phaedra.

[50 ]In Virgil, Aeneid, iv.

[51 ]Aeneid, vii.

[52 ]On 20 above Smith has said that the passion of love ‘was formerly esteemed’ to be silly and ridiculous, but it is probable that the present reference is to the passage missing before 6; cf. LJ(B) 103, below. In TMS I.ii.2.1 Smith says that sexual passion, though natural, is ‘always, in some measure, ridiculous’.

[t]‘ridiculous’ deleted

[u]The last two words replace ‘and’

[v]‘in Persia’ deleted

[53 ]II.5.9.

[w]‘naturally’ deleted

[x]Replaces ‘persons’

[y]‘and this holds both where the power of divorce is common to both’ deleted

[z]‘the’ deleted

[a]Numbers written above the words ‘discord’ and ‘jealousy’ indicate that their order was intended to be reversed

[54 ]Montesquieu, XVI.6.

[b]Replaces ‘which’

[c]Reading doubtful

[d]Reading doubtful

[e]Illegible word deleted

[f]Illegible word deleted

[g]‘severall’ deleted

[55 ]i.e. Delhi.

[h]‘What’ deleted

[i]Reading doubtful

[j]Reading doubtful

[k]Illegible word deleted

[l]‘bestowed’ deleted

[56 ]Tournefort, Relation d’un voyage du Levant (1717), II.27–8; referred to in Hume, Essays (‘Of Polygamy and Divorces’), I.235.

[m]Numbers written above the last two words indicate that their order was intended to be reversed

[n]‘and’ deleted

[57 ]XVI.4 and XXIII.12, citing Recueil des voyages qui ont servi à l’établissement de la Compagnie des Indes Orientales (2nd edn., 1725), I.347.

[o]Blank in MS.

[58 ]W. Bosman, New and Accurate Description of the Coast of Guinea (1705), says (p. 211) that women remain unmarried because their number much exceeds that of the men; and also (p. 344) that men commonly have forty or fifty wives.

[p]Illegible word deleted

[59 ]Montesquieu, XVI.4 and XXIII.12, citing E. Kaempfer [History of Japan, tr. J. G. Scheuchzer, I (1727), 199] who gives figures of 182,072 males to 223,573 females in the emperor’s capital (which was known as Miaco or Meaco) about 1675.

[60 ]By Montesquieu, XVI.2.

[q]At this point the words ‘confidence and on an equall footing with men they’ are deleted. The word ‘affection’ in the text is interlined above the first of these deleted words.

[r]Reading doubtful

[s]‘the’ deleted

[61 ]Blank in MS. Cadhisja, according to Montesquieu (XVI.2), but in fact it was Ayesha, whom Mahomet married at six years.

[t]Illegible word or words deleted

[62 ]Blank in MS. Constantia: Villani, in Muratori, Rer. Ital. Scriptores, XIII.140B.

[u]‘Agra an’ deleted

[v]Replaces ‘by’

[w]Replaces ‘means’

[x]Reading of last two words doubtful

[y]Reading doubtful

[z]‘themselves’ deleted

[a]‘nobility’ deleted

[b]Reading doubtful

[c]‘as’ deleted

[d]Numbers written above the last two words indicate that their order was intended to be reversed

[e]Illegible word interlined

[f]‘The sc’ deleted