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Thursday. Febry. 10th. 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.

About Liberty Fund:

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


Thursday. Febry. 10th. 1763.

In the two or three former lectures I gave you some account of the different sorts of marriage that are or have been in use in different parts of the world. There are in generall four sorts of marriage: either 1st, polygamy is allowed, where every man is allowed to have as many wives as he inclines and is able to maintain. Or every man is confined to one wife; this, which we may call monogamy, is of 3 sorts: either the husband has the power of divorce; or 2dly, both the husband and wife have this power; or 3dly, the power of divorce is not granted to either of the parties but is lodged in the hands of the civil magistrate, who can grant a divorce on hearing the circumstances of the case. I shewed ye also that polygamy wasg on many accounts much inferior to monogamy of every sort. With regard to the | wives it produces the greatest misery, as jealousy of every sort, discord, and enmity must inevitably attend it. The children also must be greatly neglected in every shape and lead but a very wretched life. The servants must all be slaves and entirely under the power of their master. With regard to the man himself, to whose happiness or rather pleasure the good of all the rest seems to be sacrificed, he also has no great enjoyment. He is racked by the most tormenting jealousy and has little enjoyment from the affections of his family or the intercourse of other men. It is detrimentall also to population, and besides is very hurtfull to the liberty of the people. We will find also that of all the species of monogamy above mentioned that which is established in this country is by much preferable. The dissadvantages which attend the 2d species, where the husband and wife can seperate on the pleasure of either, must evidently produce the worst effects. I shewed allready what great licentiousness and dissoluteness of manners this produced in Rome during the latter periods of the Commonwealth and those which followed. It musth produce | very little confidence or trust in the parties, as they have the power of seperating themselves and are continually in fear of being dismissed by the other party. The children must in this case be under very great dissadvantages; it is always found that a stepmother isi no proper person to take care of the children. She has not only far less affection than the mother, but has commonly a jealousy and ill will towards them as rivalls to her and her ofspring. This can never happen in the present state of marriage but on the death of the mother, or divorce, which can seldom happen, whereas the liberty of divorce gives occasion to it frequently during her life. We see that there were few of the great men of Rome, after the latter periods of the Republick, who had not two or three wives in succession, and in this state the children must lead a very uncomfortable life. The 1st species, where the husband has the sole power of divorce, may be considerably preferable, as the expectation of a separation, tho it must considerably influence both parties, does not give such uncertainty and instability to their conduct as when both have this power. The method of marriage now in use avoids all those inconveniencies, as the union is here indissoluble and must therefore give occasion to none of those | evills above mentioned. The knot indeedj may perhaps be too straitly tied in some cases. It has been very justly thought proper that the infidelity (of the wife at least<)> should give occasion to a divorce. That injury is such that there can be no harmony or agreement, but continuall distrus<t> and animosity amongst the parties. Now for the same account all injuries which excite the same resentment and hatred, and which render the union equally uncomfortable, ought to produce ak divorce as well as the others. But however it is better the knot should be too strait than too loose.

These four species of marriage comprehend all those that have been ever in use as far as I know. The power of divorce was never lodged in the hand of the woman alone, as she is considered as the inferior, tho in this point she has been put on an equality. Where polygamy takes place the power of divorce is always vested in the husband. The wives are altogether the slaves of the husband, and are in the same manner bought for a summ of money. They are therefore intirely at his disposall and can be turned away when ever he inclines. This is the case in all countries where polygamy takes place, for, as far as I can learn, the laws respecting marriage | differ very little in the severall countries where it has been receivd.

It may be proper to consider here what concern and interest the husband and wife have in the effectsl of each other according to these different sorts of marriage. Where polygamy takes place the wife has not the smallest concern in the affairs of her husband or the management of the family. That is intirely entrusted to the eunuchs, who are absolutely necessary where this marriage is used. The wife is intirely the slave of the husband, and has no more interest in his affairs than any other slave.— In that species of marriage where the husband has the power of divorce, which was that used in the first ages of Rome, and amongst all the nations of Europe in early times, before the introduction of Christianity, the whole estate of the wife whether real or personall becomes intirely the property of the husband, and the wife has no longer any power over it eitherm during her life nor at her death. She is considered in the same light as a daughter or filia familias; she had no more connection with the estate of the husband than she had, and at her death63 | got the same share of the fathers fortune, without any regard to the fortune she brought along with her. In the new marriage of the Romans, which as I said before63a was introduced in favour of heiresses, the case was altogether different. The husband had here no property in the goods of the wife. The whole of her estate was to return to her on the death of the husband, or to her relations if she died before the husband, or before a divorce. The husband had indeed the dominium dotis, but this was in effect no more than the administration of the estate: i.e. if it was a land estate he lifted the rents; if it was a summ of money or personall estate he had the interest of it; if it was consigned into another persons hands, or if he had the use of it, he gave security for the restitution of the principall. The dower on the death of the husband, or divorce, returned to the wife, and at the death of the husband she got besides any settlement he had made upon her; or if there was none such she came in as a daughter,64 besides the carrying away her portion. The separate interests which would often arise from this sort of | mariage would render the union of the parties very uncertain, and the society much less agreable than when they have one common interest, which is allmost allways the case by the sort of marriage in use in this country. The wife here has a middle rank in the family betwixt that which she had in the old and in the new method of marriage amongst the Romans. The law of most countries in Europe is much the same on this head, but there are severall considerable differences with regard to the Scots and English law. The law with regard to land estates inn England is thato the husband draws all the rents of them during his life.p After his death they return to the relations of the wife, unless they have had children.— But both by the English and Scots lawq there is allowed what is called the courtesy of England and Scotland, by whichr the husband who has had a living child by his wife has the liferent of the estate. It is considered that if the child had lived the father would have been his guardian by the common | law, and this continues for the fathers life time; this is granted by the courtesy of Scot. and Eng. when ever there has been a child born who has been heard to cry, as this child would have heired the estate.s What is called the chattles reall, which includes not only land property but all mortgages, servitudes, or what ever is due from a land estate {is so far the property of the husband that he may dispose of them by his own authority, and in that case the money he gets for them is intirely his; but if he does not dispose of them they go to the heirs of the wife.} The chattles personall are all bills and other debts, all the moveables of the wife, jewels, plate, etc.; these are intirely the husband Gap of two lines in MS. But bonds properly so called are on the same footing with the chattles real; that is, if the husband exacts them the money belongs intirely to him, but if not they go to the heirs of the woman, unless the contract specify otherwise.t It is also provided that if | the wife has not been provided by the contract, she shall have heru the third part of the husbands personal estate {which in England contains all debts of whatever sorts, bills, etc., as well as the moveables; besides which she has what is called the dower, which is a third part of the land estate during her life.} This is given by the laws of most nations. The Scots law does not give the husband such power over the wifes fortune, nor the wife over the husbands. For here tho the husband may sell the chattles real or draw payment of a bond, yet the wife or her executors may make him give up the money he has so got, but this can<n>ot go to their heirs. The part of the moveable or personall estate which she gets is the third as in England, but does not comprehend the debts or bills, only the bygone rents of his estates.

Gap of about eight lines in MS.

| This is the regulations with regard to the estates after the death of the parties. With regard to them during their lifetime, the wife is not supposed to be capable of entering into any contract or coming under any obligation whatever, either respecting her own or her husbands fortune, unless for such things as are necessary for furnishing the house; for she is considered to have the management of the family under the husband as his servant. If one sends his servant to market or to the shop of any particular person, and once or twice pays the goods he has taken up in his name, he is concluded to be obliged to pay those he afterwards takes up unless he signify his design to the contrary. It is the same with respect to the wife: she is conceived to have the business of furnishing the family, and what debts she contracts in that manner he is conceived to be bound to pay. But in Scotland if he finds her extravagant he may by a public intimation declare that he will not pay such debts as she contracts, and by this means interdict | her from meddling in his affairs. In England there is no such interdiction by any publick deed, but one may give this intimation by letter or otherwise to any particular persons. As she is [is]v conceived to bew underx her husbands influence, soy no sale of her estate is valid unless she come into court and declare her inclination that it should be so, and unless this be done she may claim restitution, Gap of about seven lines in MS.

I shall only observe farther on this head of marriage some few things with regard to those persons who are prohibited to marry together, and whose marriages are looked upon as incestuous. {These are betwixt those who are connected in certain degrees of affinity and consanguinity.} First, with regard to ascendents and descen<den>ts, their marriages are always prohibited by the civil and cannon laws, that is, a man can not marry his daughter, granddaughter, and | so on, nor his mother, grandmother, etc. in infinitum. With regard to the marriage of the mother and the son, this is of all the others the most contrary to nature, the most shocking and abominable. For here the affection which the son ought to feel towards a mother is very different from that which a husband ought to have towards a mother;65 and that of a mother is in like manner very different from that of a wife. A son is considered as an inferior to his mother and under herz command, which idea is altogether inconsistent with that of a husband and wife, where the husband is conceivd to have the superiority. The marriage of the father with the daughter is also very shocking and contrary to nature, but not altogether so much so as that of the son with the mother. The affection of a father is without doubt very different from that of a husband, and that of a daughter from that of a wife. A father is considered as the guardian and tutor of his daughter, who is to educate her in all sort of virtues and instill into her the purest moralls and the chastest affections. Now this notion is altogether inconsistent with that of a lover, a seducer, for there is | always some seduction necessary to persuade one to be a wife. {Add to this that nothing could more tenda to disturb the quiet and peace of the families than the allowing of such marriages. The mother would look on her daughter in a very dissagreable and even a jealous light when there was the least prospect that she might some time fill her place in the marriage bed, and in the same manner the father could not behold his son with pleasure when he thought there was a possibility of his taking his place as the husband of his wife.} But then there is not the same contrariety betwixt their condition in other respects. The father is the superior and the daughter the inferior, and this still continues in the husband and wife; whereas the mother is the superior and the son the inferior, which is altogether contrary to the idea of husband and wife, where the husband is always considered as the superior. Besides this, before the son is fit for marriage the mother is often past child bearing; whereas this is not the case always with respect to the father and the daughter. We see accordingly that tho the marriage of mothers and sons has been prohibited in every country {except from the delirium of superstition, from which the magi, out of veneration to Semiramis,66 allowed that practise}, yet that of fathers and daughters has been tollerated amongst some barbarous nations. The famous Attila, the conqueror of the Romans, married his daughter Blank in MS.67 , and there are other instances of the like. {The case is the same in all respects with regard to more distant ascendents.} Marriage of brothers and sisters is in most countries prohibited. The constant intercourse betwixt them who generally are bred up together, and the many opportunities as well as the great | incitements thisb connection would give them, made it absolutely necessary to put an insuperable barr to their union. There could be no other means to prevent their corruption in such a near and close connection.— Besides if it were not for this barr marriages would never be made out of the family. A man would never incline to take a wife from a family where there were brothers, as he might be pretty well assured of her being allready corrupted. That <?this> is the real reason of the prohibition of marriage betwixt brothers and sisters will be greatly confirm’d by this observation, that where there is the same danger of corruption the prohi<bi>tion is still farther extended and the marriage reckoned incestuous. At Romec in the early periods the sonsd lived after marriage in their fathers family, and consequently their children, that is, the cousins german, lived in the same intimacy and familiarity as brothers and sisters do in other countries; they were accordingly called brothers <?and sisters>. For this reason, as there was the | same danger of corruption, so the marriage of cousins german was prohibited and accounted incestuous. On the other hand at Athens the marriage of brothers and sisters consanguinean, tho not of those who were uterine, was allowed and often practised.68 The womens and the mens appartments were theree altogether seperated, and no communication allowd betwixt them. The jealousy was so great that, tho they allowed a son to go into his mothers appartments with freedom, yet they did not allow the stepson to go into his mother in laws; they did not place the same confidence here as in the other case. The brothers therefor, as they never saw their sisters consanguinean and never went into their appartments, as they always staid with their mother,f and had consequently no opportunity of corrupting them, were always allowed at Athens to marry those sisters. But as they were allowed freely to enter into their mothers appartment and saw by that means their sisters,69 there was the same necessity of preventing their corruption as in other countries.

With regard to | the marriage of uncles and nieces, and nephews and aunts, there is the same reason for the prohi<bi>tion of it as of the marriage of fathers and daughters, or sons and mothers. The uncles and aunts are considered as a sort of parents who have superiority and authority over their nephews and nieces. The affections betwixt them are very different from that of husband and wife.g But in the same manner as the marriage of the son with the mother is more shocking than that of the father and daughter, the aunt is naturally considered as a superior to the nephew, whereas when she becomes his wife she comes into the station of an inferior; whereas the uncle is always considered in the light of a superior to his niece. {And the disproportion of age affects these less then the former, as in that of parents and children.} We see for this reason the marriage of nephews an<d> aunts has never been allowed, tho that of nieces and uncles has been in many countries. At Athens as the uncles never saw their nieces as they did never go into their brothers houses, at least into the womens appartment, there was no danger of their corrupting them. They were therefore very common there. The story which is the foundation | of one of Lysias orations,70 which I will perhaps read in the other lecture,71 proceeded from a marriage of this sort. We see also that the Roman Catholicks frequently get indulgences to marry their nieces (from the Pope) tho they never do to marry aunts; these marriages are never allowed in Protestant countries.

With regard to the marriages of remoter collateralls, there was no prohibition beyond the 4th degree in any case unless where they were parentum et liberorum loco; that is, the brothers or sisters of immediate ascenden<t>s, as uncles and nieces, grand–uncles and grandnieces, etc.; and in this prohibition the cannon law agrees with the civil. But besides this they extend their prohibition to the 7th degree of their computation,72 that is, to 7th cousins according to ours. By this they had considerable imoluments, as people might often rashly and ignorently marry such distant relations, and were then obliged either to seperate or get out a dispensation. This has been taken away in this country | and all Protestant ones at the Reformation, and we now observe those regulations in most respects which are delivered in the 18 and 20th chapters of Leviticus. It is to be observed also that by the civil and other laws the same degrees of affinity are prohibited as of consanguinity, as these persons have somewhat of the same relation. The sister of my wife is as it were my sister, and so in other cases.

[g]‘detrimental’ deleted

[h]‘also’ deleted

[i]Illegible word deleted

[j]‘indeed’ deleted

[k]‘separat’ deleted

[l]Reading doubtful

[m]Reading doubtful

[63 ]i.e. his death.

[63a ]8–9 above.

[64 ]i.e. on her father’s death.

[n]‘the’ deleted

[o]The last three words replace ‘nearly the same in both’. The words ‘Chattles Reall’ are written vertically in the margin at this point.

[p]The following words are deleted at this point: ‘If they are disposed of during the wifes life time the price becomes intirely the husbands; but if he does not sell them’

[q]The words ‘and with her consent’, written vertically in the margin at about this point, are deleted

[r]‘a’ deleted

[s]‘And this is the case with regard to all’ deleted

[t]At this point the following sentence is deleted: ‘Choses manly on the other hand belong alltogether to the husband; and under this is included all the moveables of the wife, jewels, plate, etc.; these are alltogether at his disposall.’

[u]‘dower which’ and two or three illegible words deleted

[v]‘not’ deleted

[w]‘able to come’ deleted

[x]‘any contract’ deleted

[y]‘in Scotland’ deleted

[65 ]Sic. Presumably ‘wife’ was intended.

[z]Illegible word deleted

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

[66 ]Montesquieu, XXVI.14.

[67 ]Blank in MS. Esca: Montesquieu, loc. cit.

[b]Illegible word deleted

[c]‘where’ deleted

[d]Replaces ‘brothers’

[68 ]Montesquieu, V.5.

[e]Reading doubtful

[f]‘were allowed’ deleted

[69 ]Sc. uterine.

[g]There is a reference here to an unfinished and partially deleted note on v.62 which seems to read ‘And there is a’

[70 ]Oration XXXII (Against Diogeiton).

[71 ]i.e. in one of the lectures in the course on Rhetoric.

[72 ]There is a reference here to a footnote written at the bottom of 64 which reads as follows: ‘The computations of the cannon and civil law being explaind in Heinec. need not be here repeated.’ Cf. Heineccius, Elementa juris civilis secundum ordinem Institutionum, §§ 153 ff.; above, i.102. Canon law computation was based on the number of steps to the common ancestor, sixth cousins being in the seventh degree.