Chapter 1b: Polygamy
The species of marriage of which we have been treating took place only in Rome and in the Christian countries with a few others, for in many countries they took as many wives as they were able to maintain.
- This naturally leads us to consider the origin of polygamy.
- It is to [be] observed that though voluntary divorce be attended with inconveniences, yet it is not altogether contrary to the principle of justice that a man should put away his wife and take another for less reasons than adultery, because they make them quite unhappy together, though either of them might live very well elsewhere.
- The same is the case with polygamy.
- If a woman consents to be one of five, or twenty, or more wives, and the law allows it, there is no injury done her, she meets with the treatment which she might naturally expect.
- The ancient Jewish and oriental laws tolerated polygamy, but though it and voluntary divorce be not altogether contrary to justice, it must always be a very bad policy where they are established or allowed.
- Polygamy excites the most violent jealousy, by which domestic peace is destroyed.
- The wives are all rivals and enemies, besides, the children are ill taken care of, and the wife complains that her children are not used as they ought; because she measures the affection of the father by her own, between which there is no proportion, as his is divided among 40 or 50 children, and hers only among four or five.
- Where polygamy takes place there must both be a jealousy of love and a jealousy of interest, and consequently a want of tranquillity.
- It may be said that in the seraglios of the Eastern monarchs there is the greatest peace, but this is owing to the most imperious discipline:
- when rebels are subdued their humility is remarkable.
- In Africa we find the most horrid disorders, their discipline not being severe enough.
- It is the greatest misery to the women that they are entirely shut up and can enjoy no company but that of the eunuchs, which they detest.
- The man too who has the seraglio is by no means happy, though apparently so.
- He too must be jealous, and on account of the inequality betwixt him and them he can have no entertainment at his own house, no opportunity of social improvements;
- you must never mention his wife to a Turk, she can never be seen by men, not even by her physician, as Tournefort tells us.
- This gravity and reserve of the husband must have a bad effect upon the manners of the country.
- As the men have no trust nor dependence upon each other, they cannot form into parties, and therefore the government must always be arbitrary, of which they have a model in their own houses, where there is little parental and less conjugal affection.
- Besides all this it tends to depopulate the species, the greater part of men can get no wives, and many of them are castrated to take care of the seraglio.
- It is indeed alleged that there are more women born than men.
- Montesquieu says that at Bantam in the East Indies there are ten women born for one man.
- Dutch authors say that on the coast of Guinea there are fifty to one.
- The account from Japan is better attested, where it is said there are eleven women to nine men.
- Where this is the case, if the fact be true, it would be an inconvenience if polygamy did not take place.
- By strict examination we find that in Europe there is little difference.
- The general computation is that there are thirteen men to twelve women, or seventeen to sixteen, which, as men are more exposed to dangers than women, makes the number about equal.
- Now if there be no difference in Europe, we have reason to conclude that there is not any difference in any other place.
- The laws of nature are the same everywhere, the laws of gravity and attraction the same, and why not the laws of generation?
- In some of the fore-mentioned places there may indeed be more women than men.
- In places where the seat of religion is, and where the court sits, and consequently the opulent live, there must be more women, because the rich only have seraglios, and they purchase the women from other places, so that there is a constant import of women from those countries in which polygamy does not take place.
Polygamy takes place under despotic governments.
- When a country is conquered by savages, they indulge themselves in all manner of brutality.
- Polygamy is a kind of brutality, as there is no established law to the contrary.
- It never took place in ancient Carthage or Rome, though it takes place in Turkey.
- In every country, freedom removes polygamy
- There is nothing that free men will less submit to than a monopoly of this kind, but despotism is always favourable to polygamy.
Montesquieu is in favour of polygamy because in some countries women are marriageable at 8 or 9 years old, and are old and withered at 20.
- When they have their beauty they cannot have much understanding.
- When their understanding increases, their beauty is gone
- Consequently, they cannot long be agreeable companions.
- So a husband needs more than one wife.
It might be their custom to deflower infants.
- But this fact is not well attested.
- Cleopatra was 36 years old when taken by Augustus, yet she was with child.
- Constantia bore a child at 54 years old.
- But if the facts were true, it is not reasonable that polygamy should take place, but only voluntary divorce.
- If women were only useful for 10-12 years, it might be reasonable to take another, but not a number at the same time.
Wherever polygamy takes place there can be no hereditary nobility.
Being in every corner of the country, whenever the subjects are oppressed they fly to him as their head.In Eastern countries there is no such thing.Every man is almost an upstart, and the royal family alone is regarded.The families of the Bashaws after their death mix with the vulgar.Wherever there is a hereditary nobility, the country cannot easily be conquered, or rather not at all.They may be beat once or twice, but they still recover under their natural heads.Eastern countries, for this very reason that they want these, make feeble resistance against foreign invaders.
- It is difficult to make the right of primogeniture take place where there are so many wives, several of whom bring forth nearly at the same time.Now hereditary nobility is the great security of the people’s liberty.
- Where there are so many children, they cannot all have the affection of the parent, and it is only by this means that any of them can establish themselves.
- Where the children are numerous affection diminishes.
- I regard 4-5 children who are connected with my friend, but if there are 100 in the same relation they are little regarded.
Polygamy is exceedingly hurtful to a nation's populousness.
- An hundred women married to an hundred men will have more children than the same number married to two or three.
- China, India, and Egypt are populous despite polygamy.
- In those countries there are regulations regarding populousness, and some other circumstances contribute to it, such as the remarkable fertility of the soil.
Thus marriage is of two kinds:
- Monogamy, which is of three kinds:
- The husband can divorce the wife at pleasure;
- The power of divorce is equally in their power
- Divorce is in the power of the civil magistrate entirely
- Where polygamy is allowed, the wife is entirely in the power of the husband, he may divorce her or dispose of her as he pleases.
The laws concerning monogamy differ according to the species of it.
- That kind where the contract or agreement is indissoluble but by the civil magistrate, is the most convenient.
- By this indeed nothing but what is very disagreeable to society is the occasion of divorce.
- But it is always better that the marriage tie should be too strait, than that it should be too loose.
- The unlimited power of divorce in the latter ages of the Republic was productive of the most disorderly consequences, the prevention of which sufficiently atones for any hardships it may occasion.
- When both parties have the power of divorce, they can have no mutual trust nor dependence upon each other, but their interests are quite separate.
We come now to consider what interest the husband has in the property of the wife, or the wife in that of the husband, according to the different species of marriage.
- Where polygamy takes place, the wife, being in absolute slavery, has no interest at all in the husband’s property, and is only entitled to an aliment after his death.
- When the husband only has the power of divorce, the property of the wife becomes his as much as his own.
- When they have the power of divorce in the hands of both, whatever portion the wife brings is secured, and the husband can have no more ado with it but to manage it.
- When he dies, the wife has no more share of the husband’s property than was agreed upon by the contract.
- In the species of monogamy when divorce is in the hand of the magistrate, the right of the husband extends not so far as formerly;
- but that of the wife extends further, as she is more independent of him than in any other species.
- If a wife has a land estate, the husband receives the rents, which are at his absolute disposal.
- If the wife die and leave a son, the husband is the natural guardian of it, and is entitled to a courtesy of the life-rent of his wife’s estate.
- In England the husband can dispose of all [his wife’s] chattels real in his lifetime, but if he do not dispose of them in his lifetime, they go to the wife, not to the heir at his death.
- All [her] chattels personal he can dispose of as he pleases.
- Debts on bonds are the same with chattels real.
- If the husband demands payment of the debt, he can dispose of the money as he pleases, but if he do not claim it in his lifetime, it goes to his wife after his death.
- If the wife die first, all chattels real and debts on bond go to her relations, if the husband have not already disposed of them.
- If the husband die first, the wife has a third part of his land estate, whether there be children or not.
- This is considered as her dowry.
- In England she has a complete third of all, but in Scotland she has only a third of all bills, money, moveables, and bygone rents; bonds bearing interest go to the children.
- In Scotland the husband can sell his wife’s land with her own consent, but she must first be examined before a court, and declare that it was with her own consent, and then her executors cannot claim it.
- Both in Scotland and in England, no bond granted by the wife is binding upon the husband unless it be granted for the necessaries of life.
- In this respect she is considered as a servant, for if a servant buys provision in his name, he is obliged to pay [for] them.
- In Scotland the husband may have a writ of inhibition to prevent the wife from contracting debts in his name.
- In England any verbal notice that he will not be accountable for them is sufficient.
- If they be separated he is not even obliged to pay [for] what she purchases for her aliment.
We come now to consider what persons are capable of contracting marriage.
At Rome and Carthage indeed, they used sometimes to give a dispensation to the uncle and niece, but never to the aunt and nephew.
- Between ascendants and descendants marriage is prohibited in infinitum.
- Nothing can be more shocking to nature than for a mother to marry her son.
- By this the mother becomes inferior to her son, and on account of the inequality of their ages the ends of marriage are seldom accomplished.
- Therefore it is never tolerated unless where superstition takes place.
- In like manner a marriage between a father and a daughter is incestuous.
- It is, however, to be observed that this is not so contrary to nature as the former, because the father still is superior when he is husband, and accordingly we find that many barbarous nations tolerated this.
- But still it is unnatural that the father, the guardian and instructor of the daughter, should turn her lover and marry her.
- Besides, a mother can never look agreeably on a daughter who will probably supply her place.
- Nothing can be more destructive of domestic happiness.
- For the same reasons, the uncle and niece, or the aunt and nephew, never marry.
The marriage of collaterals, such as brother and sister, seems to have been prohibited chiefly from political views, because they are bred up together, and would be in danger of mutual corruption, unless properly restrained.
- The same reason lay against a marriage between cousins in those ages when they were brought up in the same house.
- At Athens a man might marry his sister consanguinea but not his sister uteral.
- Many eminent men married in this manner, thus Cimon married his father’s daughter Elpinice.
- By the law of England the wife of the deceased grand-uncle can marry her husband’s grand-nephew, it being above four degrees.
- Affinity by the Christian law is considered as the same with consanguinity.
- The wife’s sister is considered as the husband’s sister, and the wife’s aunt as the husband’s aunt.
- It is to be observed that the rules of affinity are rather rules of police than of nature, for it is not contrary to nature that a man should marry his wife’s sister.
- In many countries of the East Indies this kind of marriage takes place, because they think that the wife’s sister will probably make the best mother-in-law to her sister’s children.
- But it may be answered to this that it entirely hinders all intercourse between the sister and her brother-in-law’s family, and that it might be expected that she would answer this purpose by living in his house unmarried with no children of her own.
- The canon and civil law reckoned affinity differently.
- The civil law counted brothers and sisters as one degree removed from the common stock, and cousins german two.
- The canon law counted how far the persons were asunder. Brothers were two degrees, the father being one, and either of the brothers another.
- In the same manner cousins german were four degrees.
- The canon counted both sides from the stock, and the civil law only one. When the one says the second degree was prohibited from marriage, and the other the fourth, they both mean cousins german.
- The Pope often dispensed with these laws, and by that means extended his authority and promoted his interest.
- Having now considered all the different species of marriage, we come to consider the effects of the want of it.
- The effect of marriage is to legitimate the children.
- We must therefore consider the difference of legitimate and illegitimate.
- Legitimation gives the children inheritable blood, so that they can succeed to their father and his relations.
- An illegitimate child has no inheritable blood, and therefore cannot succeed to his father intestato,because it is unknown who is his father, nor to his mother, because no child succeeds that is not lawfully begotten.
- As a bastard can succeed to nobody, so nobody can succeed to him, as he is not related to any human creature.
- If he die intestate without children, his wife has one half of his moveables and one third of his land estate, and the rest goes to the king; but if he has children, the wife has a third of all.
- The king is still considered as ultimus heres. In Scotland there is a further inconvenience attending it.
- As the king is the heir of bastards, a bastard is incapable of making a testament, because it would cut the king out of his right.
- The king can, however, grant him letters of legitimation which make him capable of testating, because, as the right of succession belongs to the king, he may dispose of it as he pleases.
- However, this, or anything less than an act of parliament, cannot give him inheritable blood, but an act of the whole legislature can do anything.
- The canon and civil law restore to blood a person born out of wedlock in the following ways:—
- First, per subsequens matrimonium, or marrying the woman that had the children. As concubines were numerous, it was enacted that whoever married his concubine legitimated her children. This Justinian afterwards made perpetual.
- Secondly, per oblationem curiae.
- When the children were willing to execute certain parish offices, as deacons, etc., though this entitled them only to succeed to the father, and not to his relations.
- Thirdly, per adrogationem.
- As for example, one Roman could adopt the son of another, and the son accept of him as a father. They had it in their power to adrogate any free man.
- Bastards were considered as free men, and if they were willing to accept might be adrogated as such.
- Fourthly, per [re]scriptum principis, which was much the same with letters of legitimation.
- Fifthly, per testamentum, by which they probably succeeded only to their father’s estate.
- The canon law introduced the subsequens matrimonium into all countries but England.
- The English clergy were then unpopular by joining with the king against the barons, and therefore in England the subsequens matrimonium never could legitimate.
- That subsequens matrimonium might legitimate, the canon law made some restrictions which did not take place at Rome.
- Bastards of adulterous persons could not succeed, those, to wit, of a woman who has a husband alive, or of a concubine to a man whose wife is alive, though they should marry afterwards. Incestuous children also could not succeed, unless legitimated by a dispensation from the Pope.
- Thus we have seen the disabilities and incapacities of illegitimate children, which can only have an effect where monogamy prevails;
- and indeed, these alone hinder polygamy from gaining ground in any country, because, if bastards were allowed to succeed, men would hardly subject themselves to the inconveniences of lawful marriage.
- To have a wife entirely in their power, and to take others when they please, would be more convenient.
Next: Chapter 2