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CHAPTER V.: OF MARRIAGE. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 1 (Principles of Morals and Legislation, Fragment on Government, Civil Code, Penal Law) 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 1.
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Under whatever point of view the institution of marriage is considered, the utility of this noble contract is striking. It is the bond of society, the foundation of civilization.
Marriage, considered as a contract, has drawn women from the hardest and most humiliating servitude; it has distributed the mass of the community into distinct families; it has created a domestic magistracy; it has trained up citizens; it has extended the views of men to the future, through their affection for the rising generation; it has multiplied the social sympathies. In order to estimate all its benefits, it is only necessary to imagine, for a moment, what would be the condition of Man without this institution.
The questions relative to this contract may be reduced to seven:—1. Between what persons may it be permitted? 2. What shall be its duration? 3. Upon what conditions shall it be made? 4. At what age? 5. Who shall choose? 6. Between how many persons? 7. With what formalities?
Between what persons shall Marriage be permitted?
If we here follow the guidance of historical facts, we shall be greatly embarrassed, or rather, we shall be unable to deduce a single fixed rule from among the multitude of contradictory customs. Respectable examples are not wanting for authorising unions which we regard as most criminal, nor for prohibiting many which we consider altogether innocent. Every nation has pretended to follow, in this respect, what is called the law of nature, and has viewed with a kind of horror, as polluted and impure, every thing not conformed to its own matrimonial laws. Let us suppose ourselves ignorant of all these local institutions, and only consulting the principle of utility, let us examine between what persons it is proper to permit, and between whom to prohibit this union.
If we examine the interior of a family, composed of persons who differ among themselves in respect of age, sex, and relative duties, strong reasons will present themselves to our minds for prohibiting certain alliances between many individuals of this family.
I see one reason which directly pleads against allowing such marriages at all. A father, a grandfather, or an uncle holding the place of a father, might abuse his power in order to force a young girl to contract an alliance with him which might be hateful to her. The more necessary the authority of the parent is, the less temptation should be given to its abuse.
This inconvenience extends only to a small number of incestuous cases, and it is not the most weighty. It is in the corruption of manners, in the evils which would result from transitory connexions without marriage, that the true reasons for prohibiting certain alliances must be sought.
If there were not an insurmountable barrier against marriages between near relations, called to live together in the greatest intimacy, this close connexion, these continual opportunities, even friendship itself and its innocent caresses might kindle the most disastrous passions. Families, those retreats in which repose ought to be found in the bosom of order, and where the emotions of the soul, agitated in the scenes of the world, ought to sink to rest—families themselves would become the prey of all the inquietudes, the rivalries, and the fury of love. Suspicion would banish confidence; the gentlest feelings would be extinguished; and eternal enmities and revenges, of which the idea alone makes one tremble, would usurp their place. The opinion of the chastity of young women, so powerful an attraction to marriage, would not know upon what to repose, and the most dangerous snares in the education of youth would be found even in the asylum where they could be least avoided.
These inconveniences may be arranged under four heads:—
1. Evil of Rivalry.—Danger resulting from a real or suspected rivalry between a bridegroom and certain persons of the number of his relations or connexions.
2. Hindrance of Marriage.—Danger of depriving the daughters of the chance of forming a permanent and advantageous establishment by means of marriage, by diminishing the security of those who may desire to espouse them.
3. Relaxation of Domestic Discipline.—Danger of inverting the relations among those who ought to command, and those who ought to obey; or, at least, weakening the tutelary authority, which, for the interests of minors, ought to be exercised over them by the heads of the family, or those who hold their place.
4. Physical Injury.—Dangers which may result from premature indulgences, with respect to the development of the powers and the health of the individuals.
Shall a man be permitted to marry the sister of his deceased wife?
* There are reasons for and against. The condemnatory reason is the danger of rivalry during the life of the two sisters. The justifying reason is the advantage of the children. If the mother die, what a happiness for them to find a mother-in-law in their own aunt! What so likely to moderate the natural dislike to this connexion, as so near a relation? This last reason appears to me most weighty. But in order to obviate the danger of rivalry, power ought to be given to the wife to interdict her house to her sister. If the wife do not wish to have her own sister near her, what legitimate motive can the husband have for admitting this stranger near to him?
Shall a man be permitted to marry the widow of his brother?
There are reasons for and against, in this as in the preceding case. The condemnatory reason is still the danger of rivalry. The justifying reason is still the advantage of the children. These reasons appear to me to have little force on either side.
My brother has no more authority over my wife than a stranger, and can only see her with my permission. The danger of rivalry appears less great upon his part than that of any other. The opposing reason is reduced almost to nothing. On the other side, what the children have to fear from a father-in-law is trifling. If a mother-in-law be not the enemy of the children of another bed, it is a prodigy; but a father-in-law is commonly their friend, their second guardian. The difference of the condition of the two sexes, the legal subjection of the one, the legal empire of the other, expose them to opposite foibles, which produce contrary effects. The uncle is already the natural friend of his nephews and nieces. They have nothing to gain in this respect if he become the husband of their mother. If they find in a strange father-in-law an enemy, the protection of their uncle is their resource. Do they find in him a friend? They have acquired another protector which they would not have done if their uncle had become their father-in-law. The reasons for, and the reasons against, having little force on the one side or the other, it seems that the benefit of liberty ought to cause the balance to incline in favour of permitting these marriages.
Instead of the reasons that are given above for prohibiting marriages within a certain degree of relationship, ordinary morality ploughs its way, and decides upon all these points of legislation without the trouble of examination. “These marriages,” it says, “are repugnant to nature; therefore they ought to be proscribed.”
This argument alone does not furnish a justifying reason, in sound logic, for forbidding any one action whatsoever. In those cases in which the repugnance is real, the law is useless. To what good purpose prohibit what no one wishes to do? The natural repugnance is a sufficient prohibition. But in those cases where the repugnance does not exist, the reason ceases. Ordinary morality has nothing further to say respecting the prohibition of the act in question, since all its argument, founded upon natural distaste, is destroyed by the opposite supposition. If it be proper to conform to nature, that is to say, to the inclination of the desires, it is proper equally to conform to its decisions, whatever they may be. If it be proper to prohibit these marriages when they are disliked, it is proper to permit them when they are approved. Nature deserves not more regard when it hates, than when it loves and desires.
It is very seldom that the passion of love developes itself within the circle of individuals among whom it ought properly to be prohibited: a certain degree of surprise seems necessary for exciting this sentiment, a sudden effect of novelty; and it is this which the poets have cleverly expressed by the ingenious allegory of the bow and arrows, and the blindfolding of Cupid. Individuals, accustomed to be seen and to be known from the age which is incapable of conceiving or inspiring desire, will be seen with the same eyes to the end of life—this inclination will find no determinate period for its commencement. The affections have taken another course; they are, so to speak, a river which has dug its own bed, and which cannot change it.
Nature therefore agrees sufficiently well with the principle of utility: still it is not proper to trust to it alone. There are circumstances which may give birth to the inclination, and in which the alliance might become an object of desire, if it were not prohibited by the laws, and branded by public opinion.
Among the Grecian dynasty of the Egyptian sovereigns, the heir to the throne commonly espoused one of his sisters. This was apparently to avoid the danger of an alliance with the family of a subject, or with the family of a stranger. In such a rank, such marriages may be exempt from the inconveniences attendant upon them in private life. Royal opulence admits a separation and a seclusion, which could not be maintained in a medium station.
Policy has produced some examples almost similar in modern times. In our days, the kingdom of Portugal has approximated to the Egyptian custom; the reigning queen has had for her husband her nephew and subject. But in order to efface the stain of incest, Catholic princes and nobles can apply to an experienced chemist, who changes at pleasure the colour of certain actions. Protestants, to whom this laboratory is shut, have not the faculty of marrying their aunts. The Lutherans have, however, given the example of an extension of privileges.
The inconveniences of these alliances are not felt by those who contract them: the evil is altogether in the example. A permission granted to one, makes every body else feel the prohibition as tyrannical. Where the yoke is not the same for all, it appears more weighty to those who bear it.
It has been said, that these marriages into the same blood cause the race to degenerate, and that there is a necessity of crossing the race among men, as well as among animals. This objection might have some value, if under the empire of liberty, marriages among relations should become the most common. But it is enough to refute bad reasons; and even this would be too much, if a good cause were not served when the feeble and fallacious arguments by which it is sought to support it are destroyed. Some well-intentioned persons think that they ought not to take from good morals any of its supports, even when they are founded in falsehood. This error is related to that of the devotees, who have thought to serve the cause of religion by pious frauds: instead of strengthening, they have weakened it, by exposing it to the derision of its adversaries. When a depraved mind has triumphed over a false argument, it reckons that it has triumphed over morality itself.
For what period? Examination of Divorce.
If the law had not determined any thing respecting the duration of the marriage contract; if individuals were permitted to form this engagement, like every other, for a longer or shorter term,—what would be the most common arrangement under the auspices of liberty? Would it be very different from the established rules?
The object of the man in this contract might be only to satisfy a transient passion, and this passion satisfied, he would have had all the advantage of the union without any of its inconveniences. It cannot be the same with the woman: this engagement has for her durable and burthensome consequences. After the inconveniences of pregnancy, after the perils of child-birth, she is charged with the cares of maternity. Hence the union, which confers upon the man pleasures only, is for the woman the commencement of a long circle of pains, whose inevitable termination would be death, if she were not beforehand assured of the cares and protection of a husband, both for herself and the germ which she ought to nourish in her bosom. “I give myself to you,” she says to him, “but you shall be the guardian of my condition of weakness, and you shall provide for the preservation of the fruit of our love.” Such is the beginning of a society which would be prolonged during many years, if we suppose the birth of only a single child; but other births would form other ties; in proportion as years advance, the engagement is prolonged; the limits which might have been first assigned will have disappeared, and a new career will have opened itself to the pleasures and reciprocal duties of the married persons.
When the mother can no longer hope for more children, when the father has provided for the support of the youngest of the family, will the engagement be dissolved? After a cohabitation of many years, will it be supposed that the married persons will separate? Habit will have entwined around their hearts a thousand and a thousand ties which death only could destroy. The children will form a new centre of union; they will create a new source of pleasures and hopes; they will render the father and mother necessary the one to the other, by the cares and charms of a common affection, which no one could share with them. The ordinary course of the conjugal union would therefore be for the duration of life; and if it is natural to suppose, in the woman, sufficient prudence thus to stipulate with respect to her dearest interests, ought less to be expected from a father or a guardian, who possesses more maturity of experience?
The woman has also a particular interest in the indefinite duration of the connexion: time, pregnancy, suckling, cohabitation itself,—all conspire to diminish the effect of her charms. She must expect to see her beauty decline, at a time when the strength of the man still goes on increasing: she knows, that after having spent her youth with one husband, she would with difficulty find a second; whilst the man would not experience a similar difficulty in finding a second wife. Hence this new clause, which foresight would dictate to her: “I give myself to you; you shall not leave me without my consent.” The man demands the same promise; and hence, on both sides, a legitimate contract is founded upon the happiness of the two parties.
Marriage for life is therefore the most natural marriage; the best suited to the wants and circumstances of families; the most favourable for individuals, and for the generality of the species. If there were no laws to ordain it, that is to say, no other laws than those which sanction contracts, this arrangement would be always the most common, because it is that which is most suitable to the reciprocal interests of the persons marrying. Love on the part of the man, love and foresight on the part of the woman, all concur with enlightened prudence and affection on the part of parents, in impressing the character of perpetuity upon the contract of this alliance.
But what should we think if the woman should add this clause: “It shall not be lawful for me to be separated from you, should we come to hate each other as much as we now love one another.” Such a condition would appear to be an act of madness. It is something contradictory and absurd, which shocks at the first glance: every body would agree to regard such a vow as rash, and to think that humanity ought to cause it to be abolished.
But this cruel and absurd clause is not demanded by the woman, is not sought for by the man; it is imposed upon them both, as a condition from which they cannot escape. The law unexpectedly intervenes between the contracting parties: it surprises them in the transports of their youth, in the moments which open all the vistas of happiness. It says to them, “You unite yourselves in the hope of being happy, but I tell you that you enter into a prison, whose door will be closed against you. I shall be inexorable to the cries of your grief, and when you dash yourselves against your fetters, I shall not permit you to be delivered.”
To believe in the perfection of the beloved object, to believe in the eternity of the passion which is felt, and which is inspired—such are the illusions which may be pardoned to two children in the blindness of love. But aged lawyers, legislators whose heads are whitened by years, ought not to give place to this chimera. If they believe in this eternity of these passions, to what good purpose interdict a power which no one would ever wish to use? But no: they have foreseen inconstancy, they have foreseen hatred; they have foreseen that the most violent love may be succeeded by the most violent antipathy, and it is with all the coolness of indifference that they have pronounced the eternity of this vow, even when the sentiment which has dictated it shall be effaced by the contrary feeling. If there were a law which permitted an associate, a guardian, a superintendent, a companion, only on condition of never separating from them, every one would exclaim against such tyranny and such folly. A husband is a companion, a guardian, a superintendent, a partner, and still more, all at once; and yet it is only possible in the greatest number of civilized countries to have eternal husbands.
To live under the constant authority of a man that one detests, is already a species of slavery: to be constrained to receive his embraces, is a misery too great to be tolerated even in slavery itself. It has been said, the yoke is reciprocal:—the reciprocity only doubles the misery.
If marriage commonly present to men the only means of fully and peaceably satisfying the imperious desires of love, to deter them from it, is to deprive them of its sweets, is to produce an evil proportionably great. But what greater bugbear can there be than the indissolubility of this contract? Marriage, service, country, whatsoever condition there is a prohibition against quitting—there is a prohibition against entering.
In conclusion, when death is the only means of deliverance, what horrible temptations, what crimes, may not result from a position so terrible? The unknown instances are perhaps more numerous than those which are known; but that which will most frequently take place in this respect, is the negative offence. When the crime is easy, even to hearts which are not perverted—when nothing more is necessary for its accomplishment than inaction—if a detested wife and an adored mistress are exposed to the same danger—will the same efforts be made, as sincerely, as generously, for the first as for the second?
It is not proper to dissimulate: there are objections against the dissolubility of marriages. We shall endeavour to collect and to answer them.
First Objection.—“Permit divorce, neither of the parties will regard their lot as irrevocably fixed. The husband will cast his eyes around him to find a wife who would be more advantageous: the woman would make similar comparisons, and form projects for changing her husband. Hence perpetual and reciprocal insecurity would result with respect to this precious kind of property, with regard to which the whole plan of life is arranged.”
Answer 1.—This same inconvenience exists in part, under other names, when marriages are indissoluble. According to the supposition, reciprocal attachment is extinct. It is not a new wife that is sought, but a new mistress; it is not a second husband, but another lover. The duties of Hymen, and its prohibitions, too easily eluded, may perhaps serve to excite inconstancy rather than to prevent it. It is well known that prohibitions and constraint serve to stimulate the passions. It is a truth deduced from experience, that even obstacles, by occupying the imagination, by directing the mind to the same object, serve only to strengthen the desire of overcoming them. The reign of liberty produces less wandering fancies than that of conjugal captivity. Render marriages dissoluble, there will be more apparent, but there will be fewer real separations.
2. The inconveniences need not be considered alone: the advantages ought to be regarded also. Each one knowing what he was liable to lose, would cultivate those means of pleasing which originally produced the reciprocal affection. Each will more carefully study the other’s character, and the means of managing it. Each will feel the necessity of making some sacrifices of caprice and self-love. In a word, care, attention, complaisance, will be continued in the married state; and that which was done only to obtain love, will be done to preserve it.
3. Marriageable young persons would be less frequently sacrificed by the avarice and cupidity of their relations. It would be necessary properly to consult their inclinations, before forming bonds which would be broken by repugnancies. The real suitability upon which happiness reposes—the relations of age, education, and taste—would then enter into the calculations of prudence. It would be no longer possible to marry the property, as has been said, without marrying the person. Before an establishment were formed, there would be an examination whether it would be durable.
Second Objection.—“Each party regarding the connexion as transitory, would only espouse with indifference the interests, and especially the pecuniary interests of the other. Hence would arise profusion, negligence, and every species of bad management.”
Answer.—The same danger exists in commercial partnerships, and yet the danger is very rarely realized. A dissoluble marriage has a bond which these partnerships have not, the strongest, the most durable of all moral ties: affection for their common children, which cements the reciprocal affection of married persons. Among indissoluble marriages, is not this bad management more frequently found than in commercial partnerships? Why? It is an effect of the indifference and distaste which give to married persons, who are tired of each other, a continual desire to escape from themselves, and to seek for new distractions. The moral tie of their children is dissolved; their education, the care of their future welfare, is scarcely a secondary object; the charm of their common interest has vanished; each one, in the pursuit of his own pleasures, troubles himself but little with what will happen after him. Hence, a principle of disunion among married persons introduces negligence and disorder, by a thousand channels, into their domestic affairs; and the ruin of their fortune is often an immediate consequence of the estrangement of their hearts. Under the reign of liberty, this evil would not exist. Before there was a disunion of interests, disgust would have separated the persons.
The facility of divorce tends rather to prevent than to give birth to prodigality. It would produce a dread of giving so legitimate a reason for discontent to an associate whose esteem it is desirable to conciliate. Economy, appreciated at its full value by the interested prudence of both parties, would always have so much merit in their eyes as would cover many faults, and in its favour they would pardon many wrongs. It must also be perceived, that in case of a divorce, that one of the two parties who shall have the character of having behaved ill, and been extravagant, would have much less chance of forming other more advantageous connexions.
Third Objection.—“The dissolubility of marriage will give the stronger of the two parties an inclination to maltreat the feebler, for the purpose of constraining its consent to the divorce.”
Answer.—This objection is well founded; it deserves the greatest attention on the part of the legislator. A single precaution, however, is happily sufficient to diminish the danger: in case of maltreatment, liberty to the party maltreated and not to the other. In this case, the more a husband desired a divorce for the purpose of marrying again, the more he would avoid behaving ill towards his wife, for fear lest certain acts should be construed as acts of violence intended to constrain her consent. Gross and brutal methods being forbidden, there remain only gentle methods of engaging her to a separation.
Fourth Objection.—This is drawn from the interest of the children. “What will they do when the law has dissolved the union between the father and the mother?”
Answer.—That which they would have done if death had dissolved it. But in the case of divorce, their disadvantage is not so great: the children may continue to live with the parent whose cares are most necessary for them; for the law, consulting their interest, would not fail to entrust the boys to the father, and the daughters to the mother. The great danger to which children are exposed after the death of a parent, is that of passing under the government of a father or mother-in-law, who shall look upon them with the eyes of an enemy. Daughters especially are exposed to the most vexatious treatment under the habitual despotism of a stepmother. In the case of a divorce this danger does not exist. The boys will have their father for their governor, and the daughters will have their mother. Their education will suffer less than it would have suffered from their domestic strifes and quarrels. If, then, the interest of the children were a sufficient reason for prohibiting second marriages in case of a divorce, it is a still stronger reason for prohibiting them in case of death.
In conclusion, the dissolution of a marriage is an act sufficiently important to be submitted to some formalities, which would at least have the effect of preventing caprice, and allowing the two parties time for reflection. The intervention of a magistrate is necessary, not only for proving that there has been no violence on the part of the man in forcing the consent of the wife, but also for the purpose of interposing a greater or less delay between the demand for a divorce and the divorce itself.
This is one of those questions upon which opinions will be always divided. Every one will be led to approve or condemn divorce according to the good or evil which he has seen resulting from particular cases, or according to his particular interest.
In England, a marriage may be dissolved in case of adultery. But it is necessary to seek for a divorce through many tribunals; and an act of parliament upon this subject costs at least five hundred pounds sterling. Divorce is therefore accessible only to a very limited class.
In Scotland, adultery is a sufficient ground for a divorce. The law is mild in this respect, but it has a rigorous side: it does not permit the culpable party to contract another marriage with the accomplice of his guilt.
In Sweden, divorce is permitted for adultery on both sides: this amounts to the same as if it were permitted upon mutual consent; the man allows himself to be accused of adultery, and the marriage is dissolved. In Denmark, the law is the same, at least when collusion cannot be proved.
Under the Code Frederick, parties might separate by agreement, and afterwards be remarried, upon condition of remaining single a whole year. It would seem that this interval, or a part of this interval, would have been better employed in delay before granting the divorce.
At Geneva, adultery was a sufficient reason; but the separation might also be effected on account of simple incompatibility of character. A woman, by quitting the house of her husband, and retiring to that of her friends and relations, afforded grounds for a demand, which had always the legal effect of a divorce. Divorces were, however, rare; but as they were proclaimed in all the churches, this proclamation acted as a species of punishment or public censure, which was always dreaded.
When marriages were rendered dissoluble in France at the will of the parties, there were between five and six hundred divorces at Paris in two years; but these took place whilst the institution was new, and when, therefore, it would not be possible to judge of its usual operation.
Divorces are not common in those countries in which they have been long authorized. The same reasons which hinder legislators from permitting them, deter individuals from availing themselves of them when they are permitted. The government which interdicts them, takes upon itself to decide, that it understands the interests of individuals better than they do themselves. The effect of the law is evil or null.
In all civilized countries, the woman who has experienced ill-treatment on the part of her husband, has obtained from the tribunals what is called a separation. There does not result from this, permission to either of the parties to re-marry. The ascetic principle, the enemy of pleasure, has permitted the mitigation of punishment; but the injured wife and her tyrant are subjected to the same condition. This apparent equality covers great real inequality. Opinion allows great liberty to the stronger sex, but imposes great restraint upon the weaker one.
On what Conditions?
The only inquiry at present is, what are the matrimonial conditions which, according to the principle of utility, are suitable to the greatest number: for it ought to be lawful for the parties interested in these contracts, to make their own particular stipulations; in other words, the conditions ought to be left to their own will, saving the ordinary exceptions:—
First Condition.—“The wife should submit to the laws of the husband, saving recourse to justice.” Master of the wife as to what regards his own interests, he ought to be guardian of the wife as to what regards her interests. Between the wishes of two persons who pass their life together, there may at every moment be a contradiction. The benefit of peace renders it desirable that a pre-eminence should be established, which should prevent or terminate these contests. But why is the man to be the governor? Because he is the stronger. In his hands power sustains itself. Place the authority in the hands of the wife, every moment will be marked by revolt on the part of the husband. This is not the only reason: it is also probable that the husband, by the course of his life, possesses more experience, greater aptitude for business, greater powers of application. In these respects there are exceptions; but the question is, what ought to be the general law?
I have said, “saving recourse to justice;” for it is not proper to make the man a tyrant, and to reduce to a state of passive slavery the sex which, by its weakness and its gentleness, has the greatest need of protection. The interests of females have too often been neglected. At Rome, the laws of marriage were only the code of the strongest, and the shares were divided by the lion. But those who, from some vague notion of justice and of generosity, would bestow upon females an absolute equality, would only spread a dangerous snare for them. To set them free, as much as it is possible for the laws so to do, from the necessity of pleasing their husbands, would be, in a moral point of view, to weaken instead of strengthen their empire. The man, secure of his prerogative, has no uneasiness arising from his self-love, and derives enjoyment even from sacrificing it. Substitute to this relation a rivalry of powers, the pride of the strongest would be continually wounded, and would prove a dangerous antagonist for the more feeble; and placing a greater value upon what was taken, than upon what was still possessed, it would direct all its efforts to the re-establishment of its pre-eminence.
Second Condition.—“The administration should belong to the man alone.” This is a natural and immediate consequence of his empire. Besides, it is commonly by his labour that the property is acquired.
Third Condition.—“The right of enjoyment should be in common.” This condition is admitted; 1st, For the benefit of equality. 2d, In order to give to both parties the same degree of interest in the domestic prosperity: but this right is necessarily modified by the fundamental law, which subjects the wife to the authority of the husband.
The diversity of conditions, and the nature of property, would require many details on the part of the legislator. But this is not the place for stating them.
Fourth Condition.—“The wife shall observe conjugal fidelity.” The reasons which direct that adultery should be considered as a crime, need not be exposed here; they belong properly to the penal code.
Fifth Condition.—“The husband shall observe similar conjugal fidelity.” The reasons for considering the adultery of the husband as criminal will also belong to the penal code: they have less weight, but there are still sufficient reasons for establishing this legal condition.
At what Age?
At what age should it be lawful to marry? It ought not to be before the age at which the contracting parties can be considered capable of understanding the value of this engagement; and more regard should be paid to this particular, in those countries in which marriages are considered indissoluble. How many are the precautions which ought to be taken, in order to prevent a rash engagement, when repentance would be useless! The right ought not, in this case, to have a period anterior to that at which the individual enters upon the administration of his property. It would be absurd that a man should be able to dispose of himself for ever, at an age at which it is not lawful for him to sell a field of the value of ten crowns.
Who shall choose?
Upon whom shall the choice of a husband or a wife depend? This question presents an apparent, if not a real absurdity; as if such a choice could belong to any other than the party interested.
The laws ought never to entrust this power to the parents;—they want two things requisite for its beneficial exercise, the requisite knowledge, and a will directed to the right end. The manner in which parents and children see and feel, is not the same; they have not the same interests. Love is the moving principle of youth; the old scarcely feel it. Fortune, in general, is a feeble consideration among children; it is an important one with parents. What the child wishes, is to be happy; what the parent wishes, is that he may also appear to be so. The child would sacrifice every thing for love; but the parents would often sacrifice this interest to every other.
To receive into their family a son-in-law, or a daughter-in-law, whom they dislike, is a disagreeable circumstance; but is it not much more cruel for the children to be deprived of the husband or the wife which would make them happy? Compare the sufferings on both sides. Is there any equality? Compare the probable duration of the life of the parent and the child: see if you ought to sacrifice that which is just commencing, to that which is drawing to a close. Thus much for the simple right to prevent. What shall be said if, under the mask of a parent, an unpitying tyrant should seek to abuse the gentleness and timidity of his child, in order to compel a union with a person that was detested?
The connexions of children depend greatly upon those of their parents. This is partly true as respects the sons, and entirely as respects the daughters. If the parents neglect to use this right; if they do not strive to direct the inclinations of their family; if they leave the choice of their acquaintances to chance,—to whom are the imprudences of their youth to be ascribed? In conclusion, in taking from them the right to bind or to compel, it is not necessary to take from them that of modifying and retarding. Two periods may be distinguished in the marriageable age: During the first, want of consent on the part of the parents ought to suffice for annulling the marriage. During the second, they should still have the right to retard for some months the completion of the contract. This time should be given them, that they might make use of their advice.
There exists a custom sufficiently singular in one country in Europe renowned for the wisdom of its institutions: The consent of the parents is necessary to the marriage of minors, unless the lovers can travel a hundred leagues without being stopped. But if they have the good fortune to cross a small stream, ascend a slight hill, and reach a certain village, they may in a moment pronounce the nuptial vow before the first comer, though he ask them no question—and the marriage is valid, and the parental authority is overthrown. Is it for the encouragement of adventurers that a privilege of this kind is allowed to subsist? Is it from a secret desire to weaken the power of parents, or to favour what are otherwise called unequal matches?
How many contracting Parties?
Between how many persons ought this contract to subsist at one time?—in other words, ought polygamy to be tolerated?—Polygamy is either simple or double. It is simple where there is Polygynia, a multiplicity of wives; or Polyandria, a multiplicity of husbands.
Is polygynia useful or hurtful? Every thing which it has been possible to say in its favour, has only related to certain particular cases, to certain transitory circumstances: when a man, by the sickness of his wife, is deprived of the sweets of marriage, or when, by his profession, he is obliged to divide his time between two residences, as the commander of a vessel, &c.
That such an arrangement may sometimes be desirable to the man, is possible; but it never can be so to the wives. For every man there would always be two wives, whose interest would be sacrificed.
1. The effect of such a license would be to aggravate the inequality of conditions. The superiority of wealth has already too great an ascendancy, and this institution would make it still greater. A rich man, forming an alliance with a woman without fortune, would take advantage of her position to prevent his having a rival. Each of his wives would find herself in possession only of the moiety of a husband, whilst she might have constituted a source of happiness to another man, who, in consequence of this iniquitous arrangement, would be deprived of a companion.
2. What would become of the peace of families? The jealousies of the rival wives would spread among the children. They would form opposed parties, little armies, having each at their head an equally powerful protectrix, at least, with respect to her rights. What a scene of contentions! what fury! what animosity! From the relaxation of the fraternal bonds, there would result a similar relaxation of filial respect. Each child would behold in his father a protector of his enemy. All his actions of kindness or severity, being interpreted by opposite prejudices, would be attributed to unjust feelings of hatred or affection. The education of the children would be ruined in the midst of these hostile passions, under a system of favour or oppression, which would corrupt the one party by its rigours, and the other by its indulgences. In the East, polygamy and peace are found united, but it is slavery which prevents discord: one abuse palliates another; every thing is tranquil under the same yoke.
There results from it an increase of authority to the husband: what eagerness to satisfy him! what pleasure in supplanting a rival by an action which is likely to please him! Would this be an evil or a good? Those who, from a low opinion of women, imagine that they cannot be too submissive, ought to consider polygamy admirable. Those who think that the ascendancy of this sex is favourable to suavity of manners—that it augments the pleasures of society—that the gentle and persuasive authority of women is salutary in a family—ought to consider this institution as very mischievous.
There is no need of seriously discussing polyandria, nor double polygamy. Perhaps too much has been said upon this first subject, if it were not well to show the true foundations upon which manners are seated.
With what Formalities?
The formalities of this contract ought to refer to two objects: 1st, To ascertain the fact of the free consent of the two parties, and of the lawfulness of their union; 2dly, To notify and ascertain the celebration of the marriage for the future. It would also be proper to exhibit to both the contracting powers the rights they are about to acquire, and the obligations with which they will be chargeable according to law.
Most nations have attached a great solemnity to this act; and it is not to be doubted but that ceremonies which strike the imagination, serve to impress the mind with the importance and dignity of the contract.
In Scotland, the law, much too easy, does not require any formality. The reciprocal declaration of the man and the woman, in the presence of a witness, is sufficient to render a marriage valid. Hence it is to a village upon the frontier of Scotland, named Gretna Green, that minors, impatient of the yoke of their parents or guardians, hasten to emancipate themselves by an off-hand marriage.
In instituting these forms, two dangers ought to be avoided: 1st, The rendering them so embarrassing as to prevent a marriage, when neither freedom of consent nor the necessary knowledge are wanting; 2dly, The giving to the persons who ought to concur the power of abusing this right, and of employing it to a bad purpose.
In many countries, it is necessary to tarry long in the vestibule of the temple before advancing to the altar, under the title of affiances: the chains of the engagement are borne, without its advantages. What purpose does this work of supererogation answer, except the multiplication of embarrassments and snares? The Code Frederick is justly chargeable, in this respect, with useless restraints. The English law, on the contrary, has, on this occasion, chosen the part of simplicity and clearness: every one knows to what he is bound: a man is either married, or he is not.
[* ]The table of alliances to be prohibited to the woman would be necessary, in the text of the law, for greater clearness. It is omitted here as a useless repetition.