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CHAPTER I: Concerning Marriage. - Francis Hutcheson, Philosophiae moralis institutio compendiaria with a Short Introduction to Moral Philosophy [1747]

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Philosophiae moralis institutio compendiaria with a Short Introduction to Moral Philosophy, edited and with an Introduction by Luigi Turco (Indianapolis: Liberty Fund, 2007).

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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.


CHAPTER I

Concerning Marriage.

I. We have in the former book treated of the rights and obligations of that state of liberty constituted by nature. We proceed to the adventitious states, founded upon some human deed or institution.

These states are either domestick, regarding the utility of a few, so many only as can subsist in one family; or publick, respecting the utility of a whole nation or state, or even of many states.

Oeconomicks treat of the rights and obligations in a family; the chief points of which are delivered in these first three chapters. There are many other adventitious states of persons united in some narrower communities or corporations included within some political body, and subject to it; of which there are innumerable multitudes, which are not under the cognisance of philosophy.

II. All kinds of terrestrial animals must have subsisted only for one age, if nature had not consulted their preservation by a difference of sex, a <strong> desire of offspring, and a tender care of it till it can subsist by itself. In the brute [speechless] animals nature has done little more; as their young can be sufficiently preserved and reared by the care of their dams, since they need scarce any instruction for their simple ways of life. Nature finds all the clothing and armour they need; and the earth of itself sends up their food in abundance. But for the improvement and even preservation of human life a multitude of arts and inventions are necessary; as their bodies are more delicate, needing nicer food, and clothing, and other care; and their minds capable of many delightful arts. Their offspring therefor, by the wise order of nature, continues far longer tender and infirm, needing the constant <and attentive> care of the adult; that thus they may be more easily governed and instructed in the various arts <and disciplines fit for the conveniences> of life, before they acquire untractable strength.

Now as the mothers are quite insufficient alone for this necessary and laborious task, which nature also has plainly enjoined on both the parents by implanting in both that strong parental affection; both parents are bound to concur in it, with joint labour, and united cares for a great share of their lives: and this can never be tolerable to them unless they are previously united in love and stable friendship: as new children also must be coming into life, prolonging this joint charge.1 To engage mankind more chearfully in this laborious service nature has implanted vehement affections between the sexes; excited not so much by views of brutal pleasure [by that blind lust of corporal union that they have on common with speechless animals], as by some appearances of virtues, displayed in their behaviour, and even by their very form and countenances.2 These strong impulses plainly shew it to be the intention of nature that human offspring should be propagated only by parents first united in stable friendship, and in a firm covenant about perpetual cohabitation and joint care of their common children. For all true friendship aims at perpetuity: there’s no friendship in a bond only for a fixed term of years, or in one depending upon certain events which the utmost fidelity of the parties cannot ensure.3

III. This natural love of the sexes, and equally natural love of offspring, shew that Plato and some other excellent writers are justly censurable, for departing too audaciously from nature, in appointing their states to be supplied in new subjects by children unknown to both the parents; and this in order to prevent some evils{* which may be prevented in a much more easy and gentle manner. For never could any laws or institutions have such influence, that persons quite uncertain about their offspring, and hence not influenced by the natural affection, would take a proper care of the young. Or if they were compelled effectually, the labour <for preserving and educating a doubtful progeny> would be most disagreeable to them, which to parents assured of their own offspring is light and delightful. And further while their offspring is unknown, men want one of the strongest incitements to all diligence and industry. Nay further Plato’s scheme, without any sufficient reason or criterion that one can understand, is only calculated for the happiness of the few finer spirits; while the plurality are <neglected and> subjected to a miserable slavery.

Nay further; these inconveniences he dreads so much from each one’s knowing his own children, might be prevented another way, by proper laws {and publick institutions} about <a more careful> education, testaments, and successions. Nor can we ascribe the factions <and seditions> which often tear states to pieces to our knowing the tyes of blood; as one may easily see in all nations. He should also have prevented all particular friendships; or shewn that men have much superior sagacity in the choice of friends or of state-parties, than he allows them about the education of children, or the love of kinsmen, or in making their testaments.

As to the apprehension of danger from this, that many very weak men by means of the tender parental affections come into great wealth, ’tis without ground. The offspring of the weak is frequently very vigorous; and that of the vigorous weak, both in mind and body. Nor is it necessary for any state that all its members should be either robust or ingenious. And sometimes the finest genius <and virtue> is lodged in an infirm body.

IV. We must not therefor through fear of a few inconveniences counteract what nature has so strongly recommended: but rather look upon all such <precepts and> deductions of <right> reason, as shew how a faithful friendship may be maintained in wedlock, for the proper education of offspring, as so many sacred laws of nature. Men ought to restrain not only all monstrous lusts, as outrages against God and nature, <destructive of mankind,> but also all dissolute procreation without any proper covenant about a friendly society for life.4 } For if such indulgence were allowed to all, it must destroy both the bodies and minds of the youth, produce a race destitute of all paternal assistance, and expose the incautious mothers to infamy, poverty and a perpetual course of debauchery, without any hopes of ever attaining any reputable state in life. It were to be wished that an equal infamy attended the other sex, the common authors of or solicitors to such vices.

Such adult persons as have a sufficient stock both of wealth to support a family in their condition of life, and of prudence to govern it <and to educate the offspring>, seem obliged to marry, unless they are hindered by some important offices <and ones more useful to mankind> {inconsistent with the cares of a family}.5 It would be dishonourable for one without a weighty cause to decline his share of the cares and services requisite for the preservation of the human race.

V. The chief articles in this covenant are these. 1. “That the woman be faithful to the man in cohabiting with no other”; as it must be the greatest injury to impose upon him an adulterous offspring, for heirs to his fortune, and objects of that <tender> affection which is naturally due only to his own.6

2. The second is, “that the husband should be equally faithful to the wife.” For it is a natural iniquity that the wife’s conjugal affection, and all her cares and fortune, should be devoted to one man and his offspring; while the affections of the husband <due to his first wife and children> are allowed to be intercepted by, or dispersed among several women [by a new wife or mistress] and their children, and along with it his fortune.

Simultaneous polygamy is not to be allowed to men, not only on account of the inequality or iniquity now mentioned, but because it also destroys all friendship in marriage; must be the cause of perpetual contentions; must tempt women so injuriously treated into adulteries; must corrupt the minds of men with wandring lust, destroying their natural affection to their children; and must occasion to some an offspring too numerous, which therefor will be neglected, and be void of all sense of duty to such dissolute parents. And further since providence preserves the numbers of males at least equal to that of females, if ’tis allowed to men to have more wives at once, many must be excluded altogether from marriage or having offspring; and thus be free from these tender bonds which chiefly civilize and unite men in society: nor does polygamy contribute to make nations more populous{, but has rather the contrary effect}.7

3. The third article is that persons married should by a perpetual union of interests and pursuits, consult the prosperity of their family, and chiefly the right education of their common children, and the improving their condition as they have opportunity.

That we may be the better fitted for observing these articles, from our infancy we should be enured to modesty and chastity; an high sense of which is deeply fixed by nature in the finest spirits. All obscenity and lasciviousness in discourse or behaviour is detestable; as it <abates modesty and> relaxes these bonds of modesty by which the young, and women especially, are restrained from exposing themselves to all infamy and misery.

4. The fourth article is, “that the bond be perpetual, to end only by death.” This is necessary to make marriage a state of friendship; as also generally for the right [long lasting] education of children, who are successively born to us for a considerable part of life;8 and this lasting duty or charge is imposed by nature equally on both parents. It would also be most inhuman to divorce or separate from a faithful and affectionate consort for any causes which include no moral turpitude; such as barrenness, or infirmity of body; or any mournful accident which no mortal could prevent, and which must be equally afflicting to the person abandoned, the death of all the common children.

As to any proper power, or right of commanding, vested in either of the parties, it seems opposite to that tender affection the spring of marriage; which rather points out an equal friendly society. Nor seems there any other reason for giving any superiority to the husbands, except this, that men are generally more fit for managing the more important business of the family, to which the less important <carried out by wifes> within doors should give place.9

The four articles [laws] above mentioned seem so necessary, that no covenants of the parties in opposition to them can be valid.* Marriage therefor may be defined “a covenant between a man and woman about perpetual faithful cohabitation and joint care <and education> of their common offspring.”

VI. The impediments of marriage are either such as are deemed to make the contract from the first void; or, afterwards make void a valid contract. Of the former class some are natural and some moral.

Among the natural impediments, beside a manifest bodily weakness rendering one unfit for marriage, may be reckoned also some grievous disorders and miserable incurable diseases, inconsistent with a friendly society, or excluding all hopes of offspring that can live. Such as idiotism, and perpetual madness, leprosy, and some other diseases. Very advanced years of either side<, especially of the women,> may justly be deemed to make void a marriage with one in the bloom of life. But if a couple both well advanced in years, covenant about a constant cohabitation, there’s nothing blameable in it. A third impediment is, when either party is so young that they cannot have attained that use of reason which is necessary to their binding themselves by any contract. For it would be most absurd that persons who because of their immature years are deemed incapable of binding themselves in any other matter, yet should be deemed capable of it in this, which is far more important than any other{, and requires greater judgment}. <All these impediments are to be enacted by civil laws.>

The moral impediments which make void the contract from the first are prior contracts with others, and too near consanguinity or affinity.

As to the former: if two persons both <dishonestly> apprized of the prior contract with another join in marriage, the marriage should be deemed entirely void; and both parties should be severely punished. Where one of the parties was not apprized of the contract; the case of this person is so favourable [this person should be so favoured], that the marriage confirmed by cohabitation should not be made void <by the secret promise or covenant>, unless at the desire of this person: even as in other contracts, subsequent real rights take place against prior personal ones: but the guilty party deserves severe punishment. And that there may be no room for such frauds even after complete marriages, every state should take care that all marriages intended should be previously advertised and such as are celebrated also be divulged in the most publick manner.

As to consanguinity invalidating marriages, there are higher debates. Among parents and children in the <so called> direct line, <between ascendants and descendants, without end,> the law of nature seems to prohibit all marriages; not only on account of a considerable difference of years, but because the conjugal affection and intimacy seems quite inconsistent with that reverence implanted by nature toward parents and confirmed by education. As to the inter-marriages of kindred in the transverse line, or collaterals, the {natural} reasons offered by ingenious men don’t seem conclusive {to prove such marriages pernicious or impious}.10 But as we find that many nations who derived nothing from the* Jewish laws, held the same marriages of collaterals incestuous and impure; ’tis not improbable that they have been prohibited by some positive divine law in the earlier ages of the world; and that some vestiges of this law was preserved in many nations. The intention of this law has probably been to diffuse further among many families that good-will and endearment which frequently arises from consanguinity and affinity. The Deity may also have had in view some other advantages to human offspring to arise from such intermixtures of different families.

By the Roman law, and the customs of all Christians, marriage is prohibited to all within the fourth degree. And the degrees are thus computed. Persons a-kin have had some common parent: and as many generations as have interveened on both sides from this stock, so many are the degrees. In like manner a man is prohibited to marry any such kinswoman of his former wife, as of his own; to wit, within the fourth degree. The canon law retaining the same words, has yet extended the prohibitions much further; as it computes the degrees according to the generations in one of the lines only; and by the longer of the two, if they are unequal: and thus prohibits all marriages within the seventh degree of the civil law.11

VII. The causes which break off a valid marriage are, any violation of the essential articles: such as adultery, obstinate desertion, capital enmity or hatred, and such gross outrages as take away all hopes of any friendly society for the future <or a safe and agreeable life together>. When a marriage is dissolved for such causes, the guilty party and the associate in the crime deserve the highest punishments; as these injuries in marriage do greater mischief, and cause deeper distress than stealing or robbery, for which capital punishments are inflicted. The innocent party should be allowed to marry again: for it would be strangely inhuman because one has suffered injury, that the law should inflict another hardship, by depriving them of a new marriage and offspring. Nay if the guilty parties are allowed to live, they should not be hindered from marrying, except it be with the partners of their guilt. They should rather be obliged to marry persons equally infamous with themselves.

The prohibitions in the gospel of all divorces except in the case of adultery* seem elliptical, as those which prohibit all use of oaths.12 They only condemn all the causes assigned by the Jewish doctors, except that one. The apostle Paul† expresly allows another, and that for manifest reason, to wit, obstinate desertion.13

The duties of persons married consist chiefly in a faithful and constant affection, sweetness of manners, and prudent care of their families; and to this purpose ’tis necessary they improve their minds in all virtue; especially in meekness and calmness of temper; that they may restrain such passions as their family-affairs will be apt to excite. Without these virtues a continual society and community of all things can never be tolerable. As to the ways of improving their fortunes, this they must learn from other <profitable> arts, and not from philosophy.

[1. ]The same stress on instruction of the offspring as the chief aim of marriage and on the duties of both parents is found in Carmichael (Notes on Puf., pp. 128–29).

[2. ]See Hutcheson, System 3.1.2, vol. II, pp. 151–52, and Inquiry on Virtue 6.3, pp. 251–52.

[3. ]Apart from the following section (see the following note), the chapters on marriage in the Institutio and System give the same arguments in the same order.

[* ]{See Plato’s scheme in his books de Republica. The evils avoided by his scheme, are avarice, and injustice; vast estates, and the attendant power and influence, descending to worthless heirs; the employing mens affections upon the contracted system of a family or two, which otherways might be extended to the whole state: and thence many dissentions and factions.} [In System 3.1. Plato’s plan in Book V of Republic is criticized at the end of the chapter on marriage (Section XIV, pp. 184–87), beginning with a summary of the evils Plato wanted to avoid. This is likely the reason why the translator added this note.]

[4. ]Cf. Pufendorf, De officio 2.2.2.

[5. ]Cf. Pufendorf, De officio 2.2.3.

[6. ]See Pufendorf, De officio 2.2.4, point 1; Carmichael, Notes on Puf., p. 129; Hutcheson, System 3.1.4, vol. II, pp. 156–57.

[7. ]Cf. Notes on Puf., p. 130.

[8. ]The same argument is found in J. Locke, Two Treatises 2.7.80, and G. Carmichael, Notes on Puf., p. 129.

[9. ]Locke (Two Treatises 2.7.82) and Pufendorf (De officio 2.2.4, point 3) mitigate, but still ascribe to the husband, the right of governing the family. Hutcheson reduces this power further. See System 3.1.7, pp. 163–66, where he enlarges on this subject.

[* ]If any one in this matter insists that simultaneous polygamy was allowed in some civilized nations; let him remember that so were also human sacrifices, and a certain sort of slavery manifestly iniquitous and inhuman, in far more civilized [many] nations. And tho’ a plurality of wives was allowed by the Jewish law; yet a far purer institution informs us, that it was permitted for the hardness of their hearts; or only allowed to pass with impunity, but not approved. The concubinage both in Heathen Rome and under the Christian emperors [according the Roman law] was allowed only to such as had no wives, and was a marriage naturally lawful. See Heineccius’ antiquities, in the appendix to lib. i. c. 38. and the following ones. [Johann Gottlieb Heineccius, Antiquitatum Romanarum jurisprudentiam illustrantium Syntagma, Argentorati, 1724. The reference to the Christian emperors is not in the Institutio, but in System 3.1.6, p. 162 note, a further clue that the translator had a copy of Hutcheson’s posthumous work.]

[10. ]In his letter to Hutcheson of Jan. 10th, 1743, Hume says that Hutcheson is too “much afraid to derive any thing of Virtue from Artifice or human Conventions” and neglects the “most satisfactory reason” for inspiring “an artificial Horror” toward marriage between collaterals “lest near Relations, having so many Opportunities in their Youth, might debauch each other.” In System 3.1.10, pp. 170–73, Hutcheson argues in detail against the artificial account and sticks to the hypothesis of “some early divine prohibition,” according to the talmudic tradition of the Noahide Laws.

[* ]See Levit. xviii. and Tacitus’s Annals, 12. 5. Digest. 33. t. 2. 1. 17. and last. and Lib. 39. 1. 53. and Grotius ii. 5. 12. [The reference to Justinian’s Digest is wrong. The impediments for marriage from consanguinity are treated in Lib. 23, titulus 2, “De ritu nuptiarum.”]

[11. ]In System 3.1.10, vol. II, p. 174, Hutcheson’s language is not so detached: “Among the other frauds of Popery, their canonists, to draw more money to their courts for dispensations, encreased the prohibition exceedingly.” For other strictures against the church of Rome, “the fruitful source of all corruption and superstition,” see also p. 168 and pp. 180–83.

[* ]Matth. v. 32, Luke xvi. 18.

[12. ]See above, p. 205 and note.

[† ]1. Corinth. vii. 15.

[13. ]See System 3.1.11, vol. II, pp. 176–79 and note at p. 179. Hutcheson wants to show that the Scripture allows lawful cases of divorce beyond that of adultery (“unreasonable desertion” or “implacable hatred or enmity, sufficiently declared on one side”).