On the other hand, that the wife should be bound indissolubly by the marriage-tie to an unfaithful husband (or vice versa), is a violation of the right of wife (or husband, as the case may be), because on the one hand the restraint which makes her liable to be used physically as the instrument of the husband's pleasures, when there is no longer reciprocal devotion between them, is a restraint which (except in peculiar cases) renders moral elevation impossible; and on the other, she is prevented from forming such a true marriage as would be, according to ordinary rules, the condition of the realisation of her moral capacities. Though the husband's right to divorce from an unfaithful wife has been much more thoroughly recognised than the wife's to divorce from an unfaithful husband, he would be in fact less seriously wronged by the inability to obtain a divorce, for it is only the second of the grounds just stated that fully applies to him. The rights of the children do not seem so plainly concerned in the dissolution of a marriage to which husband or wife has been unfaithful. In some cases the best chance for them might seem to lie in the infidelities being condoned and an outward family peace re-established. But that their rights are violated by the infidelity itself is plain. In the most definite way it detracts from their possibilities of goodness. Without any consent on their part, quite independently of any action of their own will, they are placed by it in a position which tends—though special grace may counteract it—to put the higher kinds of goodness beyond their reach.
243. These considerations suggest some further questions which may be discussed under the following heads. (1) If infidelity in marriage is a violation of rights in the manner stated, and if (as it must be) it is a wilful and knowing violation, why is it not treated as a crime, and, like other such violations of rights, punished by the state in order to the better maintenance of rights? (2) Should any other reason but the infidelity of husband or wife be allowed for the legal dissolution of the marriage-tie? (3) How are the rights connected with marriage related to the morality of marriage?
(1) There is good reason why the state should not take upon itself to institute charges of adultery, but leave them to be instituted by the individuals whose rights the adultery violates. The reasons ordinarily alleged would be, (a) the analogy of ordinary breaches of contract, against which the state leaves it to the individual injured to set the law in motion; (b) the practical impossibility of preventing adultery through the action of the functionaries of the state. The analogy, however, from ordinary breaches of contract does not really hold. In the first place, though marriage involves contract, though without contract there can be no marriage, yet marriage at once gives rise to rights and obligations of a kind which cannot arise out of contract, in particular to obligations towards the children born of the marriage. These children, at any rate, are in no condition to seek redress—even if from the nature of the case redress could be had—for the injuries inflicted on them by a parent's adultery, as a person injured by a breach of contract can seek redress for it. Again, though the state leaves it to the individual injured by a breach of contract to institute proceedings for redress, if the breach involves fraud, it, at any rate in certain cases, treats the fraud as a crime and punishes. Now in every breach of the marriage-contract by adultery there is that which answers to fraud in the case of ordinary breach of contract. The marriage-contract is broken knowingly and intentionally. If there were no reason to the contrary, then, it would seem that the state, though it might leave to the injured individuals the institution of proceedings against adultery, should yet treat adultery as a crime and seek to prevent it by punishment in the interest of those whose virtual rights are violated by it, though not in the way of breach of contract. But there are reasons to the contrary—reasons that arise out of the moral purposes served by the marriage-tie—which make it desirable both that it should be at the discretion of the directly injured party whether a case of adultery should be judicially dealt with at all, and that in no case should penal terror be associated with such a violation of the marriage-bond Under ordinary conditions, it is a public injury that a violation of his rights should be condoned by the person suffering it. If the injured individual were likely to fail in the institution of proceedings for his own redress or defence, the public interest would require that the matter should be taken out of his hands. But if an injured wife or husband is willing to condone a breach of his or her rights through adultery, it is generally best that it should be condoned. That married life should be continued in spite of anything like dissoluteness on the part of husband or wife, is no doubt undesirable. The moral purposes which married life should serve cannot be served, either for the married persons themselves or for the children, under such conditions. On the other hand, the condonation of a single offence would generally be better for all concerned than an application for divorce. The line cannot be drawn at which, with a view to the higher ends which marriage should serve, divorce becomes desirable. It is therefore best that the state, while uniformly allowing the right of divorce where the marriage-bond has been broken by adultery (since otherwise the right of everyone to form a true marriage, a marriage which shall be the basis of family life, is neutralised,) and taking care that procedure for divorce be cheap and easy, should leave the enforcement of the right to the discretion of individuals.
244. On similar grounds, it is undesirable that adultery as such should be treated as a crime, that penal terror should be associated with it. Though rights, in the strict sense, undoubtedly arise out of marriage, though marriage has thus its strictly legal aspect, it is undesirable that this legal aspect should become prominent. It may suffer in respect of its higher moral purposes, if the element of force appears too strongly in the maintenance of the rights to which it gives rise. If a husband who would otherwise be false to the marriage-bond is kept outwardly faithful to it by fear of the punishment which might attend its breach, the right of the wife and children is indeed so far protected, but is anything gained for those moral ends, for the sake of which the maintenance of these rights is alone of value? The man in whom disloyal passion is neutralised by fear of punishment will contribute little in his family life to the moral development of himself, his wife, or his children. If he cannot be kept true by family affection and sympathy with the social disapprobation attaching to matrimonial infidelity (and unless it is a matter of social disapprobation no penalties will be effectually enforced against it), he will not be kept true in a way that is of any value to those concerned by fear of penalties. In other words, the rights that arise out of marriage are not of a kind which can in their essence be protected by associating penal terror with their violation, as the rights of life and property can be. They are not rights to claim mere forbearances or to claim the performance of certain outward actions, by which a right is satisfied irrespectively of the disposition with which the act is done. They are claims which cannot be met without a certain disposition on the part of the person upon whom the claim rests, and that disposition cannot be enforced. The attempt to enforce the outward behaviour in order to satisfy the claim, which is a claim not to the outward behaviour merely but to this in connection with a certain disposition, defeats its own end.
245. For the protection, therefore, of the rights of married persons and their children against infidelity, it does not appear that the law can do more than secure facilities of divorce in the case of adultery. This indeed is not in itself a protection against the wrong involved in adultery, but rather a deliverance from the further wrong to the injured husband or wife and to the children that would be involved in the continuance of any legal claim over them on the part of the injurer. But indirectly it helps to prevent the wrong being done by bringing social disapprobation to bear on cases of infidelity, and thus helping to keep married persons faithful through sympathy with the disapprobation of which they feel that they would be the objects when they imagine themselves unfaithful. The only other effectual way in which the state can guard against the injuries in question is by requiring great precaution and solemnity in the contraction of marriages. This it can do by insisting on the consent of parents to the marriage of all minors, exacting a long notice (perhaps even a preliminary notice of betrothal), and, while not preventing civil marriage, by encouraging the celebration of marriage in the presence of religious congregations and with religious rites.
246. Question (2) is one that does not admit of being answered on any absolute principle We must bear in mind that all rights—in idea or as they should be—are relative to moral ends. The ground for securing to individuals in respect of the marriage-tie certain powers as rights, is that in a general way they are necessary to the possibility of a morally good life, either directly to the persons exercising them or to their children. The more completely marriage is a 'consortium omnis vitae' in the sense of a unity in all interests and for the whole of a lifetime, the more likely are the external conditions of a moral life to be fulfilled in regard both to married persons and their children. Therefore the general rule of the state in dealing with marriage should be to secure such powers as are favourable and withhold such as are not favourable to the 'consortium omnis vitae.' But in the application of the principle great difficulties arise. Lunacy may clearly render the 'consortium omnis vitae' finally impossible; but what kind and degree of lunacy? If the lunatic may possibly recover, though there is undoubtedly reason for the separation from husband or wife during lunacy, should permanent divorce be allowed? If it is allowed, and the lunatic recovers, a wrong will have been done both to him and to the children previously born of the marriage. On the other hand, to reserve the connubial rights of a lunatic of whose recovery there is hope, and to restore them when he recovers, may involve the wrong of bringing further children into the world with the taint of lunacy upon them. Is cruelty to be a ground of divorce, and if so, what amount? There is a degree of persistent cruelty which renders 'consortium omnis vitae' impossible, but unless it is certain that cruelty has reached the point at which a restoration of any sort of family life becomes impossible, a greater wrong both to wife and children may be involved in allowing divorce than in refusing it. A husband impatient for the time of the restraint of marriage may be tempted to passing cruelty as a means of ridding himself of it, while if no such escape were open to him he might get the better of the temporary disturbing passion and settle down into a decent husband. The same consideration applies still more strongly to allowing incompatibility of temper as a ground of divorce. It would be hard to deny that it might be of a degree and kind in which it so destroyed the possibility of 'consortium omnis vitae,' that, with a view to the interests of the children, who ought in such a case to be chiefly considered, divorce implied less wrong than the maintenance of the marriage-tie. But on the other hand, to hold out the possibility of divorce on the ground of incompatibility is just the way to generate that incompatibility. On the whole, the only conclusion seems to be that this last ground should not be allowed, and that in deciding on other grounds large discretion should be allowed to a well-constituted court.
P. RIGHTS AND VIRTUES
247. We have now considered in a perfunctory way those rights which are antecedent to the state, which are not derived from it but may exist where a state is not, and which it is the office of the state to maintain. We have inquired what it is in the nature of man that renders him capable of these rights, what are the moral ends to which the rights are relative, and in what form the rights should be realised in order to the attainment of these ends. In order to make the inquiry into rights complete, we ought to go on to examine in the same way the rights which arise out of the establishment of a state, the rights connected with the several functions of government; how these functions come to be necessary, and how they may best be fulfilled with a view to those moral ends to which the functions of the state are ultimately relative. According to my project, I should then have proceeded to consider the social virtues, and the 'moral sentiments' which underlie our particular judgments as to what is good and evil in conduct. All virtues are really social; or, more properly, the distinction between social and self-regarding virtues is a false one. Every virtue is self-regarding in the sense that it is a disposition, or habit of will, directed to an end which the man presents to himself as his good; every virtue is social in the sense that unless the good to which the will is directed is one in which the well-being of society in some form or other is involved, the will is not virtuous at all.
248. The virtues are dispositions to exercise positively, in some way contributory to social good, those powers which, because admitting of being so exercised, society should secure to him; the powers which a man has a right to possess, which constitute his rights. It is therefore convenient to arrange the virtues according to the division of rights. E.g. in regard to the right of all men to free life, the obligations, strictly so called, correlative to that right having been considered (obligations which are all of a negative nature, obligations to forbear from meddling with one's neighbour), we should proceed to consider the activities by which a society of men really free is established, or by which some approach is made to its establishment ('really free,' in the sense of being enabled to make the most of their capabilities). These activities will take different forms under different social conditions, but in rough outline they are those by which men in mutual helpfulness conquer and adapt nature, and overcome the influences which would make them victims of chance and accident, of brute force and animal passion. The virtuous disposition displayed in these activities may have various names applied to it according to the particular direction in which it is exerted; 'industry,' 'courage,' 'public spirit.' A particular aspect of it was brought into relief among the Greeks under the name of ἀνδρεια. [1] The Greek philosophers already gave an extension to the meaning of this term beyond that which belonged to it in popular usage, and we might be tempted further to extend it so as to cover all the forms in which the habit of will necessary to the maintenance and furtherance of free society shows itself. The name, however, does not much matter. It is enough that there are specific modes of human activity which contribute directly to maintain a shelter for man's worthier energies against disturbance by natural forces and by the consequences of human fear and lust. The state of mind which appears in them may properly be treated as a special kind of virtue. It is true that the principle and the end of all virtues is the same. They are all determined by relation to social well-being as their final cause, and they all rest on a dominant interest in some form or other of that well-being; but as that interest may take different directions in different persons, as it cannot be equally developed at once in everyone, it may be said roughly that a man has one kind of virtue and not others.
[1] [Greek ἀνδρεια (andreia) = manliness Tr.]