The Science of Rights/Appendix 1

The Science of Rights by Johann Gottlieb Fichte
Appendix 1
Fundamental Principles of the Rights of Family

§ 1.Edit

DEDUCTION OF MARRIAGE.


I.

PRECISELY as we were compelled to deduce the necessity of the coexistence of rational beings, and their relation to a sensuous world, in order to obtain an object for the application of the conception of rights, so shall we now be compelled to obtain a knowledge of the nature of marriage by its deduction, in order to be enabled to apply the conception of rights to it understandingly. It is not to be understood as if the conception of rights gave rise to marriage; for marriage is not merely a legal association like the state, but rather a natural and moral association. Hence, the following deduction is not legal, but is necessary in a Science of Rights, as giving an insight into the legal propositions which follow it.

Nature has based her end of propagating the human race upon the existence of a natural impulse in two different sexes, which impulse seems to exist only for its own sake, and to crave only its own satisfaction. That impulse is itself end of our nature, although it is only means for nature in general. While men have no other object than to satisfy this impulse, the natural consequences of this satisfaction result in the end which nature had in view, without any additional cooperation of man.

The ground why nature must separate two different sexes, through the union whereof alone the propagation of the race is possible, I shall suggest here only in outlines, since it is an investigation not properly belonging here. The formation of a being of its own kind is the last degree of creative power in organic nature; and that power necessarily works whenever the conditions of its causality are given. If these conditions, therefore, were always given, nature would be an everlasting transition into other forms, but never a permanency of the same form; would be an everlasting Becoming, but never a Being; nay, even transition and becoming would be impossible, since there would be nothing to change and to become; all of which is, indeed, an unthinkable and contradictory conception.

If a nature was to be possible, it was necessary that the species should have another organic existence besides that of the species, and yet that it should remain species, so as to be able to propagate itself. This was possible only by separating the organic power, which forms the species, into two absolutely connecting halves, as it were, which only in their union would form an itself propagating whole. In this separation that organic power forms only the individual. The individuals are and form the species only, (for to be and to form is the same in organic nature,) in so far as they are united and can be united. The individual is permanent only as a tendency to form the species. Only thus did rest and permanency of power enter nature, and with that permanency form, and made it nature; and hence this law of a division into two separate sexes necessarily pervades all nature.

II.

The particular determinedness of this institution of nature is this, that in the satisfying of the impulse, or in the promotion of the end of nature, so far as the real act of generation is concerned, the one sex keeps purely active, and the other purely passive.

The ground of this determinedness also can be discovered. The system of all the conditions for the generation of a body of the same species had to be completely united somewhere, and, when put in motion, to develop itself after its own laws. The sex which contains these complete conditions is called throughout all nature the female sex. Only the first moving principle could be separated from it. The sex in which this principle generates itself, apart from the substance to be vitalized by it, is called throughout all nature the male sex.

III.

The character of reason is absolute self-activity; pure passivity for the sake of passivity contradicts reason, and utterly cancels it. Hence, it is not against reason that the one sex should propose to itself the satisfaction of its sexual impulse as an end in itself, since it can be satisfied through activity; but it is absolutely against reason that the other sex should propose to itself the satisfaction of its sexual impulse as an end, because in that case it would make a pure passivity its end. Hence, the female sex is either not rational even in its tendencies, which contradicts our presupposition that all men should be rational, or this tendency can not be developed in that sex in consequence of its peculiar nature, which is a self-contradiction, since it assumes a tendency in nature which nature does not accept; or, finally, that sex can never propose to itself the satisfaction of its sexual impulse as its end. Such an end and rationality utterly cancel each other in that sex.

Nevertheless, the sexual impulse of this female sex, as well as its manifestation and satisfaction, are part of the plan of nature. Hence it is necessary that the sexual impulse should manifest itself in woman under another form; and, in order to be conformable to reason, it must appear as an impulse to activity; and as a characteristic impulse of nature, it must appear as an activity exclusively appertaining to the female sex.

Since our whole subsequent theory rests upon this proposition, I shall endeavor to place it in its proper light, and to disarm possible misunderstanding of its meaning

Firstly: we speak here of nature and of an impulse of nature; that is, of something which a woman will find in herself as something given, original, and not to be explained by any previous act of her own, nor originated by any application of her freedom whatever; something which woman will thus find in herself as soon as its two conditions, reason and activity of the sexual impulse, exist But we do not at all deny the possibility that woman may not sink below this condition of nature, or may not through freedom elevate herself above it, which elevation, however, is itself not much better than the sinking below it. A woman sinks below nature when she degrades herself to irrationality; in which condition the sexual impulse may manifest itself in consciousness in its true form, and may become a well-considered object of activity. A woman elevates herself above her nature when the satisfaction of the sexual impulse is not an end for her, neither in its coarse form nor in that form which it receives in a well-formed female soul; hence, when it is considered by her as means for another end, which she has with free consciousness proposed to herself. Unless this other end is to be an utterly wicked and degrading end—as, for instance, if she should have done it for the purpose of becoming a married woman, and in view of a prospect of a secure income, thus making of her person the means to obtain an enjoyment—we must assume it to be the same end which nature has in view, that is, to have children, and which some such women, indeed, claim to have been their motive. But since she could attain this object with every possible man, and since thus there is no ground to be discovered in her principle why she should have chosen precisely this man and none other for that purpose, we must assume, as, after all, the least degrading motive, that she chose this man because he was the first one she could get, which surely does not evince great personal self-respect. But even apart from this grave circumstance, and admitting for the moment that such an end would justify the resolve to cohabit with a man, the serious question would still remain: Whether the end will be produced by such means, or whether children are really begotten by the resolve to beget them?

We hope this plainness will be pardoned in our endeavor to show up certain dangerous sophistries in all their nakedness, by means of which sophistries many seek to palliate the repudiation of their true destination, and to perpetuate it forever.

Let me characterize this whole relation in an image: The female sex stands one step lower in the arrangement of nature than the male sex; the female sex is the object of a power of the male sex, and no other arrangement was possible if both sexes were to be connected. But at the same time both sexes, as moral beings, ought to be equal. To make this possible, a new faculty, utterly wanting in the male sex, had to be given to the female sex. This faculty is the form in which the sexual impulse appears to woman, whereas to man it appears in its true form.

Man may confess to himself that impulse, and may seek its satisfaction without thereby losing his self-respect or the respect of others. I speak, of course, of the sexual impulse in its original condition; for a man who should propose to himself the satisfaction of that impulse for its own sake with a loving wife, would show himself to be a coarse character, whereof we shall discover the ground hereafter. But a woman can not confess that impulse to herself. Man may court, but not woman. A woman who were to do so would exhibit the highest self-contempt. For a refusal received by a man signifies merely, "I will not submit myself to thee!" and this may be borne. But a refusal received by a woman would signify, "I will not accept the submission thou hast offered me!" and this is insupportable. It is nonsense to apply legal arguments in this case. If some women claim that they ought to have the same right to court as men, we would answer: "No one disputes you that right; why, then, do you not make use of it?" The truth is, such arguments are as absurd as it would be to question whether man has the same right to fly as the birds have. Of course he has; so let him fly!

This one distinction constitutes, indeed, the whole difference of the sexes. It is this natural constitution of woman which gives rise to female modesty, which modesty is by no means developed to the same extent in the male sex. Vulgar men sometimes boast of their deeds of voluptuousness; but even in the times of the worst demoralization into which the female sex has repeatedly sunk, and then by far exceeded the demoralization of the men, women have never been known to do so; and even the prostitute will rather confess that she carries on her horrible trade from lust of gain than from voluptuousness.

IV.

Woman can not confess to herself that she gives herself up—and since, in a rational being, every thing is only in so far as it arises in consciousness—woman can not give herself up to the sexual impulse merely to satisfy her own impulse. But since she can give herself up only in obedience to an impulse, this impulse must assume in woman the character of an impulse to satisfy the man. Woman becomes, in this act, the means for the end of another, because she can not be her own end without renouncing her ultimate end the dignity of reason! This dignity she maintains, although she becomes means, because she voluntarily makes herself means in virtue of a noble natural impulse—love!

Love, therefore, is the form in which the sexual impulse appears to woman. But love is, to sacrifice one's self for the sake of another not in consequence of a reasoning, but in consequence of a feeling. Mere sexual impulse should never be called love; to do so is a vulgar abuse of language, calculated to cause all that is noble in human nature to be forgotten. In fact, my opinion is that nothing should be called love but what we have just now described. Man originally does not feel love, but sexual impulse; and love in man is not an original, but a communicated, derived impulse, namely, an impulse developed through connection with a loving woman; and has, moreover, quite a different form in man to what it has in woman. Love, the noblest of all natural impulses, is inborn only in woman; and only through woman does it, like many other social impulses, become the common property of mankind. The sexual impulse received this moral form of love in woman, because in its original form it would have canceled all morality in woman. Love is the closest point of union of nature and reason; it is the only link wherein nature connects with reason, and hence it is the most excellent of all that is natural. The Moral Law requires that man should forget himself in the other; but love even sacrifices itself to the other.

Let me state it concisely: In an uncorrupted woman the sexual impulse does not manifest itself at all, but only love; and this love is the natural impulse of a woman to satisfy a man. It is certainly an impulse which urgently requires to be satisfied, but its being thus satisfied is not the satisfaction of the woman. On the contrary, it is the satisfaction of the man, and for woman it is only the satisfaction of hex heart. Her only requirement is to love and to be loved. Only thus does the impulse which the woman feels to sacrifice receive that character of freedom and activity which it must have in order to be rational. Perhaps there does not exist a man who does not feel the absurdity to turn this around and to assume in man a similar impulse to satisfy a need of woman; a need, in fact, which he can neither presuppose in woman nor consider himself as its tool without feeling himself disgraced to the innermost depths of his soul.

Hence, also, woman in the sexual union is not in every sense means for the object of the man. She is means for her own end, to satisfy her heart; and she is means for the end of the man only in so far as physical satisfaction is concerned.

The attempt to hold up this mode of regarding woman as deceptive, and to say, for instance, "After all, it is only the sexual impulse which impels woman, under the deceitful cloak of love," is a dogmatic error. For woman sees no further, and her nature goes no further, than love; hence woman is only love. It does not matter to woman whether man—who does not possess that female innocence, nor is intended to possess it, and who may become conscious of all that is within him—proceeds to analyze that impulse or not; it suffices to woman that the sexual impulse is to a woman only love. If women were men, it would certainly be otherwise.

V.

Woman, in making herself the means to satisfy man, gives up her personality; and she receives this and her whole dignity back again only by thus making herself means to satisfy man from love for a particular one.

If this sentiment ever should cease; if woman ever should cease to regard in the man whom she satisfied the most lovable of all his sex, this thought alone would make her contemptible in her own eyes. If it were possible that he should ever not be in her eyes the most lovable of all his sex, then the presumption would be, that in giving herself up to him she gave herself up only from a concealed natural impulse to give herself up to the first one who might come—a thought which would, doubtless, dishonor her in her own eyes. As surely, therefore, as she thus gives herself up with full preservation of her dignity, she does it under the presupposition that her present feelings can never change, but that they are as eternal as she is herself. The woman who gives herself up once, gives herself up forever.

VI.

The woman who thus surrenders her personality, and yet retains her full dignity in so doing, necessarily gives up to her lover all that she has. For, if she retained the least for her own self, she would thereby confess that it had a higher value for her than her own person; and this undoubtedly would be a lowering of that person. Her own dignity requires that she should give herself up entirely as she is, and lives to her choice and should utterly lose herself in him. The least consequence is, that she should renounce to him all her property and all her rights. Henceforth she has life and activity only under his eyes and in his business. She has ceased to lead the life of an individual; her life has become a part of the life of her lover. (This is aptly characterized by her assuming his name.)

VII.

The position of the man, meanwhile, is this: Since he may confess all to himself, and hence finds in himself the whole fullness of humanity, he is able to overlook his whole relation to woman, as woman herself can never overlook it. He, therefore, sees how an originally free being voluntarily submits itself to him with unlimited confidence, and that she makes not only her whole external fate, but also her internal peace of soul and moral character—at least her own faith in it—dependent upon him, since the faith of woman in herself and in her own innocence and virtue depends upon this, that she may never cease to esteem and love her husband above all others of his sex.

As the moral impulse of woman manifests itself as love, so in man that impulse manifests itself as generosity. His first wish is to be master; but if another being surrenders itself to him in perfect confidence, he lays aside all his power. For to be strong against the vanquished is fit only for the weak-hearted who can not oppose force to resistance.

In consequence of this natural generosity, man, in his relation to his wife, is compelled, first of all, to be worthy of esteem, since her whole peace of mind depends upon his being held in esteem by her. Nothing so irrevocably kills the love of the wife as the meanness or infamy of her husband. Indeed, the female sex will pardon in our sex every thing but cowardice and weakness of character. The ground of this is by no means a selfish calculation upon our protection; but solely the impossibility to submit to such men, as woman's destiny nevertheless requires her to submit.

The peace of the wife depends upon her being utterly submitted to her husband, and having no other will than his own. Now, since he knows this to be so, his character of manly generosity, which he can not deny without denying his own nature and dignity, requires that he should make it as light as possible for her to do so. This he can not do by allowing his wife to rule him; for the pride of her love consists in being and seeming to be submitted and not knowing otherwise. Men who submit themselves to the rule of their wives thereby make themselves contemptible in the eyes of their wives, and destroy all their matrimonial happiness. He can do it only by attentively discovering her wishes, and causing to be done, as if it were through his own will, what he knows she would most gladly have done. It is not to be taken that he thus gratifies her notions and whims merely in order to have them gratified, but that he has the far higher purpose of thereby making it easier for her to love her husband always above every thing, and of thus retaining her innocence in her own eyes. It can not fail but that the wife—whose heart can not be satisfied by an obedience which calls for no sacrifice on her part—will seek to discover, on her part, the concealed higher wishes of her husband, in order to satisfy them at some sacrifices. For the greater the sacrifice, the more perfect is the satisfaction of her heart. Hence arises connubial tenderness; that is, tenderness of sentiments, and of the whole relation. Each party wishes to give up its personality, so that the other one may rule alone. Each finds content only in the satisfaction of the other; the exchange of hearts and wills becomes perfect. It is only in connection with a loving woman that the heart of the man opens to love, to the love which confidingly surrenders and loses itself in the beloved object; it is only in the tie which connects the wife with the husband that she learns generosity and conscious self-sacrifice; and thus the tie unites them closer every day of their wedded life.

COROLLARIA.

1. In the union of both sexes, and hence in the realization of man as a whole, or as a completed product of nature, but also only in this union, is there to be found an external impulse to virtue. Man is compelled by his natural impulse of generosity to be noble and venerable, because the fate of a free being which surrendered itself to him in full confidence depends upon his being so. Woman is compelled to observe all her duties by her inborn modesty. She can not act contrary to reason in any manner, because it would lead her to suspect herself of having acted so in the chief manner, and that she had chosen her husband, not from love—the most insupportable thought to woman—but merely as a means to satisfy her sexual impulse. The man in whom there still lingers generosity, and the woman in whom there still dwells modesty, are open to the utmost degree of culture; but both are on the sure path to all vices when the one becomes mean and the other shameless, as indeed experience invariably shows it to be the case.

We have, therefore, also solved here the problem: How the human race can be led to virtue through nature. This can be done only by restoring the natural relation between both sexes. Moral education of mankind is possible only from this point.

2. Such a union as we have described is called a marriage. Marriage is a complete union of two persons of both sexes, based upon the sexual impulse, and having its end in itself.

It has its ground in the sexual impulse in either sex, that is, for the external observation of the philosopher; but it is not necessary that either of the persons who desire to conclude marriage should be conscious of it. A woman can never confess this to be the case. She can only confess the motive to be love. Nor is the continuance of marriage in any way conditioned by the satisfaction of this impulse; for that end may vanish utterly, and the marriage relation may, nevertheless, continue in its whole intensity.

Philosophers have hitherto considered it necessary to assign some end to marriage, and have specified that end variously. But marriage has no other end than itself; it is its own end. The marriage relation is the true mode of existence of grown persons of both sexes, required even by nature. In this relation all man's faculties develop; but out of it many, and among them the most remarkable faculties of man, remain uncultivated. Precisely as the whole existence of man has no relation to any sensuous end, so neither has its necessary mode, marriage.

Marriage is a union between two persons—one man and one woman. A woman who has given herself up to one, can not give herself up to a second, for her whole dignity requires that she should belong only to this one. Again, a man who has to observe the slightest wish of one woman can not conform to the contradictory wishes of many. Polygamy presupposes that women are not rational beings like men, but merely willess and lawless means to gratify man. Such is, indeed, the doctrine of the religious legislation which tolerates polygamy. This religion has—probably without being clearly conscious of the grounds—drawn one-sided conclusions from the destination of woman to remain passive. Polyandry is utterly against nature, and hence very rare. If it were not a condition of utter brutishness, and if it could presuppose any thing, it would have to presuppose that there is no reason and no dignity of reason.

The union of matrimony is in its nature inseparable and eternal, and is necessarily concluded as being eternal. A woman can not presuppose that she will ever cease to love her husband above all of his sex without abandoning her personal dignity; nor can the husband presuppose that he will ever cease to love his wife above all of her sex without abandoning his manly generosity. Both give themselves to each other forever, because they give themselves to each other wholly.

3. Marriage is, therefore, no invented custom, nor an arbitrary institution, but a relation necessarily and perfectly determined through nature and reason in their union. Perfectly determined, I say, that is, only a marriage such as we have described, and absolutely no other union of both sexes for the satisfaction of the sexual impulse is permitted by nature and reason.

It is not the business of the Science of Rights, but of the far higher laws of nature and reason to establish and determine marriage. To look upon marriage as merely a legal relation leads to improper and immoral conceptions. The reason why, nevertheless, it has been done, may be found, perhaps, in the consideration that marriage, like all that is determined by the conception of rights, is a living together of free beings. But it would be bad if this cohabitation had no higher ground, and no other regulative principle, than a law of compulsion. Marriage must exist before we can speak of any matrimonial rights, precisely as man must exist before we can speak of rights at all. The Science of Rights neither asks how matrimony originated nor where men came from. After marriage has been deduced, as has just now been done, the question first arises as to how far the conception of rights is applicable to it, what law disputes may enter it, and how these disputes ought to be decided; or, since we teach here an applied Science of Rights, what rights and duties the state has in regard to the relation of both sexes in general, and particularly in regard to the marriage relation. We now enter upon this investigation.


§ 2.Edit

LAW OF MARRIAGE.


I.

THE conception of personality involves the conception of all the rights of man, and hence it is the first and highest duty of the state to protect the personality of its citizens. A woman loses her personality and her whole dignity when she is compelled to submit herself to the sexual lust of a man without love. It is, therefore, the absolute duty of the state to protect its female citizens against this compulsion, a duty which is not at all based upon any particular arbitrary agreement, but upon the simple nature of the case, and the immediate principles of municipal law—a duty as holy and inviolable as the duty to protect the life of citizens, for it is the internal, moral life of the female citizens which is thus to be protected.

II.

Such a compulsion may be effected upon a woman by immediate physical force, in which case it is called rape. Of course, rape is a crime; for it is a most brutal attack upon the personality of a woman, and hence upon all her rights.

The state has the right and duty to protect its female citizens against this compulsion, and does so partly through the watchfulness of the police, partly by providing for its punishment. This crime evinces, first of all, brutality in the criminal, making him incapable of living among human society. Violence of passion is no excuse, but, on the contrary, increases the crime. For a man who has not control over himself is a wild beast, and society, not being able to tame him, must not tolerate him in its midst. It evinces, moreover, an unlimited contempt for, and neglect of, all human rights. Some laws punish rape by death, and a legislation which recognizes the punishment of death certainly acts logically in prescribing it as a proper punishment for this crime. According to my system, I should send such men to the colonies for correction; for, although their crime is equal to murder so far as the contempt of human rights is concerned, still it is not impossible for men to live together with such criminals.

Restitution is, of course, impossible. For how can we restore to the unfortunate woman the consciousness that she may give up, at some future time, her whole untouched personality to the man she loves? Nevertheless, restitution must be made so far as it is possible, and since the criminal can give to the offended woman nothing but money, and since she can receive from him nothing but money, I should vote that he be compelled to deliver all his property to the woman he has violated.

Unmarried women are, as we shall see hereafter, under the control of their parents; married women under that of their husbands. Hence, the parents or husbands will be the plaintiffs in such cases. In the former instance, if the parents should refuse to prosecute, the woman might do so herself, but not if the husband should so refuse; for women are submitted to their parents only conditionally, but to their husbands unconditionally.

III.

Or such a compulsion may be effected upon the female citizen indirectly through the moral influence of her parents or relations, in compelling her to consent to a marriage for which she has no inclination, either by means of harsh treatment or of persuasion. Harsh treatment is, of course, a legal offense; but is persuasion also one? In this case—although in no other possible case—persuasion is an indictable offense. For whereas in all other cases you can properly ask, Why did you allow yourself to be persuaded? this question is not admissible here. The ignorant, innocent daughter has no knowledge of love, knows not at all the nature of the connection she is inveigled into; she is, therefore, cheated, and used as a means for the ends of her parents or relatives.

This kind of compulsion is the most dangerous, and far more insulting than violence, if not in form at least in its results. For, in the case of rape, woman, after all, regains her freedom afterward; but in the case of a compulsion of this kind, woman is usually cheated for her whole lifetime out of the noblest and sweetest sentiment, that of love, and out of her true female dignity and whole character, and lowered completely and forever to a tool.

It can not, therefore, be at all a matter of doubt whether the state has the right and duty to protect its young female citizens against this kind of compulsion, by severe laws and strict vigilance. The only question is, Who is to prefer the complaint, since the unmarried daughter stands under the authority of her parents, who are her legal guardians, and who will not be likely to prefer complaint against themselves? The solution of this difficulty we shall find when we come to see that the daughter escapes that parental authority the moment she marries. Hence, the law can very properly provide that a daughter shall become independent the moment her parents propose marriage to her, and shall, therefore, be full master of her own rights in such case.

The final decision of the state in such a case would be this: Parents who have abused their power for the purpose of enslaving their children during their whole lives, must be deprived of that power, and the children, together with their inheritance, must be placed under the protection of the state. But since it might, nevertheless, happen, that young and inexperienced daughters, not accustomed to disobey parental authority, would rather submit than prefer public complaint, the state ought to retain the right to officially interfere on its own account in such cases, even when no complaint has been preferred.

IV.

It is quite different with the male sex. Firstly: No man can be compelled, in the true sense of the word, to marry, for it is against the nature of the thing. If he is persuaded, it does not signify much, for real love in man does not precede, but follows marriage. But if he knows his own advantage, he will not permit that any woman should be compelled to marry him, since this would be a violation of his human rights, depriving him, as it would, of all prospects of a happy marriage, which he has a right to demand. "Love will come afterward," say many parents. It is certainly to be expected in the case of the man, provided he marries a worthy woman; but in the case of the woman it is very uncertain; and it is terrible to sacrifice and degrade a whole human life upon the risk of this bare possibility.

The result of our argument is, that marriage must be an absolutely free act; and the state, as the protector of the rights of each individual, and particularly of the female sex, has the right and the duty to watch over this freedom of all matrimonial alliances.

V.

This jurisdiction of the state over the freedom of all marriages involves, that the state must recognize and confirm all marriages of its citizens.

Every marriage must have legal validity, that is, it must not infringe upon the rights of the woman, who must give herself up with her free will, and from love. A citizen must be obliged to prove this to the state, unless he wishes to render himself suspicious of having used violence. This proof he can not well furnish otherwise than by causing the woman to declare the marriage to be her own free will before the law. This is done in the marriage ceremony. The "Yes!" of the woman declares in reality only that she has not been forced to the act. For all the other obligations which are entered into in the marriage ceremony are of themselves necessary results of marriage. The significance of the husband's "Yes!" we shall investigate later. That he is not compelled in the act appears clearly from his leading the woman to the altar. It is very proper and reasonable that marriages, being based upon and having their existence only in morality, should be celebrated by clergymen; but in so far as the ceremony has legal validity, the clergyman is an official of the state.

It is beyond comprehension why the state, or the clergy, should have the right to prohibit marriages between persons of a certain degree of relationship. If nature has provided a prejudice against such mixtures, the laws are superfluous; but if there is no such natural disgust, then we should not produce it by our laws. It is plausible why some nations should believe such marriages to be an offense to their divinity, but that does not justify the state in prohibiting such marriages. Those who believe such to be the case will not conclude such marriages; and those who do not believe it, or wish to risk it, will be punished by their own act if the belief of the nation is a true one. It is better to let the gods revenge their own insults.

But, independently of all religious grounds, might there not be political reasons for considering certain marriages as not allowable? It seems to me that the best that has been said on this subject is to be found in Montesquieu. (De l'Esprit des Loix, liv. 26, chap. 14.) It has always been the natural destination of the fathers to watch over the innocence of their children, and to keep them as pure in body and soul as possible. Incessantly occupied with this care, the doing of any thing which might seduce these was furthest removed from them. The same reason implanted a disgust against mutual intercourse in son and daughter; and is also the source why marriages between cousins are prohibited. For in the first times of our race all children remained at home, and the children of two brothers considered each other as of the same father and mother.

This preservation of chastity in families was under the care of the fathers of the family, but on no account an affair of civil legislation—as an actual violation of the rights of another family—or of police legislation—as merely facilitating such a violation. Hence, those who did not keep such care could merely be taught and educated by the more cultivated people to do so, but could not be compelled by force of law to keep this care over the chastity of their families. Again: the grounded vanishes when the ground vanishes, which in our instance is the living together of many relatives. So far as marriage between parents and children, and between brothers and sisters is concerned, this ground can never vanish in its generality. So far as the marriage of cousins, or of uncles and nieces, etc., is concerned, this ground rarely occurs in the present condition of mankind.

Cohabitation is the real actualization of marriage; for only through it does the woman submit her whole personality to the husband, and shows him her love, from which the whole described relation between married people emanates. Where this cohabitation has occurred, marriage is always to be presupposed; where it has not occurred, any other union than a union of marriage has taken place. Hence, a mere engagement to be married, whether public or private, does not constitute a marriage; and the breaking off thereof is not to be considered as a divorce. It may entitle to damages. The innocent party must be reinstated in her previous condition so far as possible. Even the performance of the marriage ceremony, if—as is conformable to propriety—it precedes marriage, does not constitute marriage, but merely legally recognizes in advance the marriage to be culminated.

VI.

Man and wife are intimately united. Their union is a union of hearts and of wills. Hence, it is not to be assumed at all that a law dispute can arise between them. The state, therefore, passes no laws regulating the relation of husband and wife, their whole relation being of a natural and moral, but not of a legal character. Both are one soul, and are presupposed to be as little likely to quarrel with each other or to prefer suit against each other, as one and the same individual is supposed likely to quarrel with himself.

As soon as a dispute arises, the divorce has already been accomplished, and it is only legalized by the judicial decree of divorce.

VII.

The conception of marriage involves the most unlimited subjection of the woman to the will of the husband; not from legal, but from moral reasons. She must subject herself for the sake of her own honor. The woman does not belong to herself, but to the man. The state, by recognizing marriage, that is, by recognizing a relation based upon something far higher than itself, abandons all claims to consider the woman as a legal person. The husband supplies her place; her marriage utterly annuls her, so far as the state is concerned, by virtue of her own necessary will, which the state has guaranteed. The husband becomes her guarantee in the eye of the law; or becomes her legal guardian. He lives in all her public life, and she retains for herself only a house life.

The guarantee of the man is a natural consequence of the relation. Its limits we shall discover hereafter. Nevertheless, it might be advisable to have him so declare himself specially as the guarantee of this woman. The "Yes!" of the man in the marriage ceremony may be regarded as such a pledge, and obtains significance indeed, only when so regarded.

VIII.

The conception of marriage involves, that the woman who surrenders her personality shall at the same time surrender the possession of all her property and her exclusive rights in the state. The state, in recognizing the marriage, recognizes and guarantees the possessions of the wife to the husband; that is, not as against the claims of the wife, for a law dispute with her is impossible, under our presupposition, but against the claims and attacks of all other citizens. The husband becomes, in so far as the state is concerned, the sole proprietor of his previous possessions, and of those which his wife held at the time of her marriage.

These possessions of the wife have either been held by her before marriage, in her own name, and are, therefore, known to be hers by the state, in which case they are simply transferred to the husband; or they are conferred upon her at the time of marriage by the parents, in which case the state is notified by the public transfer at the time. The absolute property, money, and valuables, the state, as we have shown before, takes no cognizance of; nevertheless, for the sake of a possible future divorce, which necessitates repartition, as we shall see, it is necessary that this absolute property brought by the wife to the husband should also be known to the state, or at least that arrangements should be made whereby it can be proved in future cases of emergency. A sealed document or contract, deposited in a court of record, is sufficient.

The conception of marriage also involves common residence, common labor; in short, living together. To the state both husband and wife appear as only one person; what the one does is as valid as if the other had also done it. All public legal acts are performed only by the husband.

IX.

It needs no law of the state to regulate the relations between married persons, or the relations between them and other citizens. My views on laws concerning adultery, in so far as those laws are intended, or appear intended, to secure a property, the property of a man to his wife and of a wife to her husband, I shall express hereafter. Precisely as the state regards husband and wife as only one legal person, externally represented by the husband, and their property as one property, so each citizen also must regard them and their property. In law disputes citizens must deal with the husband; none have a right to immediately appeal to the wife. The only consequence of this requirement is, that husband and wife are obliged to make their marriage publicly known, which, indeed, is necessary also for moral purposes, to prevent the annoyance illegal, or supposedly illegal, connections might give rise to; and which is, therefore, most properly made the duty of the clergy.

X.

Originally, that is, so far as his mere natural inclination is concerned, man, it is true, seeks to satisfy his sexual impulse. But when he learns, either before or after marriage, through reflection or through the teachings of others, particularly through actual intercourse with esteemable persons of the female sex, (above all, from his mother,) that woman loves, and ought to give up her personality only from love, his mere natural impulse will become ennobled. He will no longer desire merely to enjoy, but also to be loved. Knowing that woman makes herself contemptible by surrendering herself without love, and that lust in woman is degrading, he no longer will wish to use her as mere means for sensual gratification. He would necessarily have to despise himself were he compelled to look upon himself as the mere tool for the satisfaction of an ignoble impulse. These principles govern all judgments respecting the effect of the wife's adultery upon the husband.

Either such a wife, who gives herself up to another man, does so from pure and whole love. In that case, since love does not admit of partition, she has ceased to love her husband, and the whole relation to him is broken of itself. Moreover, she has degraded herself, although she pleads love, for her first connection with her husband must now appear to her, if she is susceptible to moral feelings, as an ignoble and animal connection from the reasons assigned before. If she allows the sham of her relation to her husband to continue, she degrades herself still further to the utmost extent; for, whether she does so from sensuous lust, or from some external purpose, she certainly uses her personality as a means for a low purpose, and thus makes also a means of the husband.

Or such a wife has surrendered herself to the stranger from sensuous lust; in which case it is to be assumed that she also does not love her husband, but merely uses him to gratify her passion, which is beneath his dignity.

In either case, therefore, adultery destroys the whole matrimonial connection; and the husband can not continue to keep the wife without losing his s-elf-esteem.

(This, indeed, has shown itself in the universal sentiment of all nations, even of the least civilized. A man who tolerates the dissipations of his wife is held in contempt, and a peculiar expression of ignominy has been invented for him. The reason is, that such a man acts dishonorably, and shows himself to be mean and ignominious.)

Man's jealousy has the character of a contempt of the faithless woman. If it has any other character, as, for instance, that of envy and jealousy, man renders himself contemptible.

X.

Adultery on the part of the husband evinces either a low mode of thinking, when the woman with whom he commits it surrenders herself, not from love, but from other motives; or, when the woman gives herself up from love, it evinces the grossest injustice toward this woman; for by accepting her he obliges himself to fulfill all the duties of marriage, to be unlimitedly generous and careful of her peace of mind, while he knows that he can not be so.

Now, although it is low in a man to merely gratify his passion, still to do so does not absolutely kill his character, as it does that of the woman. Nevertheless, his wife, seeing him commit adultery for such a low purpose, might thereby be properly led to suppose that he considers her in a like manner, and that all his pretended generous tenderness is merely sexual impulse—a supposition which would materially lower her in her own estimation. Even apart from this, it would certainly be painful for a loving woman to know that the same sacrifice she has made of herself to her husband has been made by another woman. (Hence the jealousy of woman has always a mixture of envy and of hatred against her rival.) It would thus become very probable that the wife's heart would be alienated from her husband; at least, it is sure that her relation would be embittered by such conduct on the part of her husband, and hence it is not conformable to the generosity which the husband owes to his wife.

Whereas, therefore, the wife's adultery necessarily destroys the whole relation between husband and wife, the husband's adultery does not do so necessarily, but, nevertheless, may possibly destroy it. His guilt is as great as that of the faithless wife, perhaps even greater, for he evinces lack of generosity, that is, meanness. The wife may pardon; and a noble, worthy wife certainly will pardon. But it is painful for the husband to be pardoned, and still more painful for the wife that she should have something to pardon. The husband loses the courage and power to be the head of the family; and the wife feels pained that she can not esteem him to whom she has given herself. Their relation becomes reversed. The woman becomes the generous, and the husband the submissive party. This is, indeed, shown in common experiences. A wife who knows and tolerates the dissipations of her husband is not despised, but, on the contrary, is held all the more in esteem the gentler and wiser she bears it. The presupposition is, therefore, that she ought not to seek legal redress. Whence does this opinion rise, which is so deeply rooted in men's souls? From our legislation, or from our own sex? It seems not, since it exists also among the women, who complain about that legislation. It has its ground in the fundamental difference between both sexes, as pointed out by us.

XI.

In order to get a thorough view concerning the civil consequences of adultery, we must, above all things, investigate the relation of the state, and of legislation, toward the satisfaction of the sexual impulse outside of the marriage relation.

It is the duty of the state to protect the honor of the female sex; that is, to see that women are not compelled to give themselves up to a man whom they do not love; for this honor is a part, nay, the noblest part, of their personality. But each woman has also the right to sacrifice her personality, that is to say, there is no external legal ground against her doing so. Precisely as each person has an unlimited external—not internal, or moral—right to take away his own life, the state having no right to make laws against suicide, so also has woman unlimited external right over her own honor. She is externally free to lower herself to a brute, as the man is also externally free to think meanly and low.

If, therefore, a woman chooses to give herself up from mere voluptuousness or from other motives, and if a man can be found who is willing to dispense with love, the state has no right to prevent it.

Strictly speaking, therefore—we shall see hereafter how this may be limited—the state can pass no laws against prostitution and adultery, nor affix any punishment to these offenses.

(Such, indeed, was the original rule in all Christian states. Offenses of this kind were punished, not as violations of a civil law, but of a moral law, and hence were punished by the moral penal power, the church. Their chief punishment was always a church penance. We do not wish to discuss the propriety of this, conduct here, since we do not speak of the church, but of the state. The Papal revenues from prostitutes, for instance, are a great consequence in inconsequence: for it is from the church that sanction must be obtained for this mode of life, if it is to be at all permitted; and the money which is paid is the penance paid in advance for sins to be committed thereafter.)

XII.

A relation, the end whereof is mere gratification of the sexual impulse, and which is based upon egotism, may be public and permanent, in which case it is called concubinage. Its publicity results from the living together of both parties in a sufficiently public manner, at least, to be known to a watchful police.

The state, as we have seen, can not prohibit concubinage. But as the protector of women, the state must be satisfied that the woman has voluntarily entered the infamous compact This can be achieved only by the declaration of such a woman, which declaration, however, on account of its infamous character, must not be a solemn ceremony before the teachers of morality, as the marriage declaration, but before such officers of the police as may be intrusted with affairs of this low character.

The state must also know that this connection, although it has the external appearance of a marriage, is none. It has not the legal consequences of a marriage; the husband does not become the legal representative of the woman. The tie can be dissolved whenever either party pleases, without any formality. The state has not guaranteed it; nor does the state guarantee the conditions of the arrangement; and hence, the woman obtains no legally valid claim upon the man. For such claims can be obtained only in a relation recognized and guaranteed by the state. True, the state can not prevent such a relation as this of concubinage, but neither can the state confirm it, since it is immoral. If, therefore, the man refuses to conform to the obligations given to the woman, he certainly caps the climax to his meanness, and, it is to be hoped, makes himself universally contemptible; but the woman can not substantiate her claim before the law. The courts will refuse to entertain her complaint.

XIII.

A relation for the mere gratification of the sexual impulse may also be transitory and not public. Two cases are possible.

Firstly, the woman may submit to the will of the man without receiving any payment, or promise of payment—neither money, presents, services, or any other kind of payment whatever, and without expressly declaring that she does so from other motives than love. In this case, it is to be assumed that she has done so from love; for it is clear that she has not done it from motives of gain; and this is all the more to be presupposed, because it is against the nature of woman to do it from voluptuousness, unless, indeed, it can be proved that she is known to have intercourse with every body. She having thus surrendered herself from love, the relation between both persons is a true marriage relation, although no specific promise to marry has been given. The only thing wanting is the public recognition of this marriage, that is, the marriage ceremony. This the state, as the protector of woman's honor, owes to the woman. She herself is presupppsed not to have sacrificed that honor, and hence, the state can not sacrifice it either. The man may be compelled to wed her. He is not compelled to marry her, for he has already married her, but merely to publicly declare this marriage. If he evinces an insurmountable aversion, or if there are other reasons which form obstacles to a continuance of marriage, (for example, perfect inequality of condition,) he may be divorced immediately after marriage, such divorce to be treated according to the general laws of divorce, which we shall speak of directly.

Secondly, the woman who has thus surrendered herself to the will of a man may have had previously or afterward intercourse with other men, or she may have done so for money. In the latter case, it must be evident that she has placed that price upon her personality, and has given herself up only for the sake of such price. The fact that she has received presents on other occasions from her lover is no proof against her virtue. But if that proof can be furnished, she is dishonored, and has no claim upon the law for protection; for the law can not protect an honor which does not exist, and which she has surrendered herself.

Prostitutes, who make prostitution their sole business, can not be tolerated in a state, but must be sent out of its limits, (although their freedom to do with their body what they please remains unimpaired,) for the following very simple reason: The state must know on what each person subsists, and must extend to each person the right (license) to carry on a certain business. A person without business (means of support) is no citizen. Now, if a woman should assign prostitution as her means of support, she would properly be considered insane by the state. Propriam turpitudinem confitenti non creditur is a just rule of law. It is, therefore, the same as if she had assigned no business; and this is the reason why she can be expelled from the state unless she chooses to reform.

In a properly arranged state such a case can not well occur. Each person is rationally taken care of. If persons carry on another business than their legitimate occupation, the state ignores it, because it is not a public matter, and hence not subject to the law. The state knows nothing of such irregularities. The state does not guarantee to men the enjoyment of their dishonorable lusts, as it guarantees to all its citizens quiet and comfortable highways. Hence, it is not within the province of the police to be supervisors over the health of the prostitutes; and I confess that I consider such a supervision unworthy of a state. Whoever chooses to be dissipated must bear the natural consequences of such dissipation. Nor does the state guarantee any contracts which may be made concerning these matters. A prostitute can not prefer complaint in such things.

XIV.

Let us apply these principles to adultery. The state can no more prohibit it or punish it by law than any other illegitimate satisfaction of the sexual impulse. For, let me ask, whose rights are violated by this offense? The rights of the husband whose wife, or of the wife whose husband, commits adultery? Is conjugal fidelity then an object of penal legislation? Or has it not, in fact, its ground in a connection of hearts? But such a connection of hearts is free, and can not be compelled by penal laws; and if it ceases, the compulsion of external fidelity—which compulsion alone is physically possible—is both illegal and impossible.

XV.

If the relation which ought to exist between married people, and which constitutes the essence of marriage, consisting of unlimited love on the part of the woman and unlimited generosity on the part of the husband—if this relation is destroyed, then the marriage is already canceled. Married people divorce themselves as they have married themselves, out of their own free will. If the ground of this, their relation, is canceled, their marriage does not continue, no matter whether they remain together or not; henceforth their cohabitation is in truth only concubinage; their connection is no longer end in itself, but has an external end, usually some temporary advantage. Now, the law can require no one to do that which is dishonorable, as concubinage is; hence, it can not require persons whose hearts have been separated, to live together any longer.

From this it would appear that the state has nothing to do in cases of divorce beyond making the divorce public, as it made the first marriage public. The legal results of the marriage which the state guaranteed having ceased, of course the divorce, which causes them to cease, must be equally made known to the state, and through it to its citizens.

XVI.

Nevertheless, most of our states assume to have legal jurisdiction over divorces. Are they utterly in the wrong? and if not, what is the ground of their right?

The following: It may happen that the parties to be divorced call upon the state for aid, in which case the state has to judge whether it will extend it to them or not. The result would be, that the state gives no other decisions in divorce cases than decisions as to the assistance it must furnish to the parties interested.

XVII.

Both parties may have agreed about their separation and the partition of their property; in which case there is no dispute, and all to be done is, that they should declare their separation to the state. They have settled the whole matter among themselves; the object of their agreement is an object of their natural freedom; and the state, strictly speaking, has not even the right to ask for the reasons of their separation.

Result: The consent of both parties separates the marriage legally, without any further investigation.

XVIII.

One of the parties may not agree to the separation. In this case the notification to the state is not merely a declaration of the fact of such divorce, but also an appeal for its protection, and hence the state may now take legal cognizance of the divorce.

What can the party demanding the separation require of the state? If it is the husband who appeals for a divorce, the meaning of his request is: I want the state to drive my wife out of my house. If, on the contrary, the wife sues for a divorce, her appeal signifies: That, since the husband, as representative of the family, owns the house and can not, therefore, be driven out of it; and since she, moreover, is willing to go, and possibly is also at liberty to go, the state should force her husband to provide for her otherwise.

According to what law is the state to settle this matter?

XIX.

Let us assume the case of a husband suing for civil divorce on account of the adultery of his wife. According to the above, it is against the honor of the man to keep up his relation with her; indeed this relation is no longer a marriage, but a concubinage. But the state can not force a person to do any thing against his honor and moral feelings. It is, therefore, the duty of the state in this case to rid the husband of his wife. What reasons, indeed, could the wife have to desire the continuance of this relation? Love is not to be presumed in her; hence she must have other ends in view. But the husband can not allow himself to be made the tool of her ends. Even the church is not interested in persuading the husband to retain the adulteress and to pardon her, for the church can not advise him to do that which is dishonorable and immoral.

Or let us assume that the husband sues for divorce on the plea that his wife does not love him. If she admits the plea, the state must grant the divorce; for love only is the ground of a legal marriage, and where there is no love the relation is merely a concubinage. What reasons could a woman have, indeed, to continue to live with a man whom she confessedly did not love? These reasons could only be of an external character, and the man can not allow himself to be made their tool. If she does not admit the plea, the state can not proceed directly, but must either wait to collect sufficient grounds for a divorce, or until both parties come to an agreement.

The refusal on the part of the wife of what has been very ignobly called "connubial duty," is a proof of want of love, and in so far constitutes legal ground for a divorce. For love proceeds from this submission of the woman, and this submission remains the constant expression of love. I have said in so far as it proves this want of love; for if sickness or some other physical obstacle can be proved, it does not prove want of love; and in such a case the suit of a man for a divorce would be mean beyond all expression. But supposing he is so mean? In that case the state can not consent to be the servant of his meanness; but neither is it to be hoped that the wife of such a man will oppose any obstacle to a divorce.

If the wife becomes subject to a criminal prosecution, the very facts of the case separate her from her husband; for the state takes her away from him. In all civil cases the husband is 1 the legal representative of the wife; but in a criminal, that is, an exclusively personal case, he can not be so. She is reinstated in her full personality, and thereby divorced from her husband. If she is found to be innocent, she returns under the jurisdiction of the husband. If the husband wishes to take her back again, after she has been found guilty and suffered punishment, he may do so; but he can not be compelled to do it, for she has dishonored him.

XX.

Let us now assume that the wife sues for a divorce on the plea of her husband's adultery. We have shown that it is certainly possible, nay, even honorable, to the wife to pardon her husband in such a case. Hence, it is advisable to dissuade her, or to let her wait awhile. But if she insists, the divorce must be granted; for she alone knows her own heart, and alone can decide whether the infidelity of her husband has rooted out all her love for him or not; and it would be utterly unjust to force the wife to submit herself to her husband after her love has expired.

The state, indeed, is generally obliged to grant a divorce to the wife, if she insists upon it. The female sex must be favored by the law to this extent, for the reason that, although the suit of the wife may prove nothing against the husband, it proves, at least, the absence of love in her, and no woman should be forced to give herself up without love. But as women often do not know their own heart, and love more than they are aware of, it is advisable, as we have said, to first use dissuasion or temporary separation, (from bed and board.)

That a woman should plead impotency, etc., on the part of her husband is a dishonor to her sex, a sin against nature, and it may safely be called barbarism, if the state—or the church—accepts such a plea. Experience confirms, moreover, that women are themselves ashamed of this plea, and usually put it forth merely as a pretense.

A criminal investigation, to which the husband becomes subject, does not necessarily cause a divorce. The relation here is a very different one. Nevertheless, such an investigation is a very valid reason for the wife to insist on a divorce, since she can not esteem a criminal. Should she choose, however, to remain with him, to bear his fate and relieve it as much as the law allows, she is free to do so.

Willful desertion, where the deserted party has not been made aware of it or of its grounds, is of itself a divorce, if used as a plea; for the missing party must be regarded as having pronounced a divorce, and hence as consenting to it.

XXI.

The final question is: How shall the property be divided in cases of divorce?

As my principles on this subject differ from those usually entertained, I would ask my readers well to consider the grounds of my decision.

The wife, together with her personality, submits all her possessions to the husband; and he can repay her love only by also submitting his person and freedom, as well as all his possessions, to her, with this difference, however, that he retains external control over the whole. The union of hearts necessarily involves union of possessions under the chief control of the husband.

A divorce separates this union; but when the ground ceases, so also does the grounded. It seems, therefore, at first sight, as if each party ought to be placed back again in its original position, and ought to receive back what it contributed to the common property.

But there is this to be considered: both parties have for a certain time administered, enjoyed, increased, or diminished their property, presumptively under one will and as one subject. The effect of this common administration can not be canceled; is necessarily common to both, and remains common to both. It is impossible to make a close calculation as to what amount of attention and care the one and the other party has stood in need of, etc.; for, if it has been a true marriage, the needs of the one party were those of the other, and the gains of the one party those of the other. Both were but one legal person. It is as impossible for husband and wife to make such a settlement with each other or to sue each other as it is for one individual to settle with or sue himself. True, this relation is now canceled, but it was not canceled before, and the effect of that relation can not be annulled.

Now, the external condition of this effect is the amount of property each party had before the marriage. According to the ratio of the property thus contributed, the whole amount' of property at the time of the divorce is to be redivided, as effect. If the wife, for instance, contributed one third of the common property at the time of marriage, and the husband two thirds, then at the time of divorce the whole common property must be estimated, and one third given to the wife and two thirds to the husband. The wife does not get back the amount of her original third, but plus its gains or minus its losses during the time of marriage. Other law provisions may have excellent political reasons, but they are not just.

To whom the children are to be assigned we shall see hereafter, when we come to speak of the relation between parents and children.


§ 3.Edit

CONCERNING THE LEGAL RELATION OF BOTH SEXES IN GENERAL TO EACH OTHER IN THE STATE.


I.

Has woman the same rights in the state which man has? This question may appear ridiculous to many. For if the only ground of all legal rights is reason and freedom, how can a distinction exist between two sexes which possess both the same reason and the same freedom?

Nevertheless, it seems that, so long as men have lived, this has been differently held, and the female sex seems not to have been placed on a par with the male sex in the exercise of its rights. Such a universal sentiment must have a ground, to discover which was never a more urgent problem than in our days.

If we grant that the female sex, so far as its rights are concerned, has really been thus treated, it by no means suffices to assign as ground a less degree of mental and physical power. For women would reply: "Firstly, you men do not give us the same degree of culture which you extend to your own sex; and secondly, that statement is not even true; for if you will make a list of the men who are the pride of their sex, we can make one of women, who will, justly estimated, be their peers in every thing; but finally, even if this inequality were as you state it to be, it would on no account involve such a decided inequality of rights, since there is also among men a great distinction of mental and bodily powers, which does not involve such an oppressive inequality of rights."

Hence, it will be necessary, above all things, to investigate whether women are really treated so badly and unjustly as some of them, and, still more, some uncalled-for advocates of their cause, assert.

II.

The question, whether the female sex has really a claim to all the rights of men and of citizens which belong to the male sex, could be raised only by persons who doubt whether women are complete human beings. We do not doubt it, as appears sufficiently from the above. But the question may certainly be asked, whether and in how far the female sex can desire to exercise all its rights? To facilitate the answering of this question, we shall consider the several conditions of women.

III.

As a rule, woman is either a maid or married. If a maid, she is still under the care of her father, precisely as the unmarried young man. Herein both sexes are perfectly equal. Both become free by marriage, and in regard to their marriage both are equally free; or if there is to be a favor shown, it should be shown to the daughter. For she ought not even to be persuaded to marry, which may be permitted in the case of the son, as we have shown heretofore.

If she is married, her whole dignity depends upon her being completely subjected, and seeming to be so subjected, to her husband. Let it be well observed, what my whole theory expresses, but what it is perhaps necessary to repeat once more emphatically—woman is not subjected to her husband in such a manner as to give him a right of compulsion over her; she is subjected through her own continuous necessary wish—a wish which is the condition of her morality to be so subjected. She has the power to withdraw her freedom, if she could have the will to do so; but that is the very point: she can not rationally will to be free. Her relation to her husband being publicly known, she must, moreover, will to appear to all whom she knows as utterly subjected to, and utterly lost in, the man of her choice.

Her husband is, therefore, the administrator of all her rights in consequence of her own necessary will; and she wishes those rights asserted and exercised only in so far as he wishes it. He is her natural representative in the state and in the whole society. This is her public relation to society. She can not even allow herself to think for a moment that she should exercise herself her rights in the state.

So far as her private and internal relation in the house is concerned, the tenderness of the husband necessarily restores to her all and more than she has lost. The husband will not relinquish her rights, because they are his own; and because, if he did so, he would dishonor himself and his wife before society. The wife has also rights in public affairs, for she is a citizen. I consider it the duty of the husband—in states which give to the citizen a vote on public matters—not to vote without having discussed the subject with his wife, and allowed her to modify his opinion through her own. His vote will then be the result of their common will. The father of a family, who represents not only his own but also the interests of his wife and children, ought indeed to have a greater influence and a more decisive vote in a commonwealth, than the citizen who represents only his own interests. The manner of arranging this is a problem for the science of politics.

Women, therefore, do really exercise the right of suffrage—not immediately, however, in their own person, because they can not wish to do so without lowering their dignity, but through the influence which results from the nature of the marriage relation. This is, indeed, proved by the history of all great revolutions. They either emanated from, or at least were led and considerably modified by, women.

REMARK.

If this must be admitted to be the case, what, then, do women and their advocates really demand? What is it whereof women are deprived, and which must be restored to them? The rights themselves? They are completely possessed of them, as we have shown. It can only be the external show of those rights. They not only want to accomplish, but also to have it known that they accomplished it. They not only want their ideas to be carried out, but also to have it publicly known, that they, even they, carried them out. They long for celebrity during life, and after death in history.

If this alone is and can be their object in preferring those complaints, then their complaints ought to be unhesitatingly rejected; for they can not prefer them without renouncing their whole female worth. The fewest, however, who prefer them, do so seriously. Most of them have been persuaded to utter such wonderful words, which they can not think without dishonoring themselves, by a few crack-brained men, most of whom have never thought sufficiently high of a woman to make her their companion through life, and who are therefore anxious to remedy the matter by having the whole sex, without exception, immortalized in history.

Even the man who makes glory the chief or but one of the ends of his life, loses the merit of his acts, and sooner or later, also, that very glory. Women ought to be grateful that their position precludes the very suspicion of such a motive. But what is far more: by such thirst for glory women sacrifice the amiable modesty of their sex, which nothing can more disgust than to be put up for a show. Ambition and vanity are contemptible in a man; but in woman they are corrupting; for they root out that modesty and self-sacrificing love for her husband, upon which her whole dignity rests. A rational and virtuous woman can be proud only of her husband and children; not of herself, for she forgets herself in them. Add to this, that those women who seriously envy men their celebrity, are deceived concerning the true object of their wish. Woman necessarily desires the love of some man, and, in order to attract it, she is anxious to attract the attention of the male sex. This is natural and very proper in an unmarried woman. But those women calculate to increase the charms of their own sex—perhaps not having much confidence in them—by that which attracts the attention of men to men, and seek in celebrity merely a new means of captivating men's hearts. If those women are married, their object is as contemptible as the means are unsuited to accomplish it.

IV.

If the husband can not or refuses to vote, there is no reason why the wife should not appear in his place and cast their common vote, but always as the vote of the husband. (She could not cast it as her own without separating herself from her husband.) For the grounded extends no further than the ground; and the ground why the wife could not vote was, because the husband voted for both. If he does not, she can, therefore, vote.

This furnishes us the principle applicable to widows and divorced women, and to maids who are no longer under paternal authority and yet have never been married. All these classes of women are not subjected to a man; hence there is no reason why they should not themselves exercise all civil rights precisely as men do. In a republic they have the right to vote, to appear in court, and to defend their own cause. If from natural bashfulness and modesty they prefer to choose a guardian, they must be permitted to do so, but there is no legal ground why they should be forced to choose one.

V.

Every citizen in the state is to possess property and to administer it according to his will; hence, also, the woman who has no husband. This property need not be absolute property, money or valuables, but may also consist of civil rights or -privileges. There is no reason why women should not have these. Woman can own land and carry -on agriculture. Or she can carry on an art, or -a profession, or some commercial business.

VI.

Women are ineligible to public offices for the following simple reasons: public officers are responsible to the state; and hence must be perfectly free, and dependent always only upon their own will; otherwise such a responsibility would be unjust and contradictory. Woman, however, is free and independent only so long as she has no husband. Hence the exclusive condition under which a woman might become eligible to office, would be the promise not to marry. But no rational woman can give such a promise, nor can the state rationally accept it. For woman is destined to love, and love comes to women of itself—does not depend upon her free will. But when she loves, it is her duty to marry, and the state must not form an obstacle to this duty. Now, if a woman, holding a public office, were to marry, two cases are possible. Firstly, she might not subject herself to her husband so far as her official duties were concerned. But this is utterly against female dignity; for she can not say then, that she has given herself up wholly to the husband. Moreover, where are the strict limits which separate official from private life? Or, secondly, she might subject herself utterly, as nature and morality require, to her husband, even so far as her official duties are concerned. But, in that case, she would cease to be the official, and he would become it. The office would become his by marriage, like the rest of his wife's property and rights. But this the state can not permit; for it must know the ability and the character of the person upon whom an office is conferred, and can not accept one chosen merely by love.

VI.

This fact, that women are not intended for public offices, has another consequence, which the advocates of woman's rights put forth as a new complaint against our political institutions. For, very naturally, they are not educated for duties they will never have to perform; are sent neither to colleges, nor to universities. Now they cry out, that men neglect their minds, and enviously and cunningly keep them in ignorance, and hold them removed from the sources of enlightening culture. We shall examine this charge carefully.

The learned man by profession studies not merely for himself; as student he studies, on the contrary, not at all for himself, but for others. If he wishes to become a preacher, or statesman, or doctor, he studies for the purpose of immediately applying what he has learned; hence he learns at the same time the form, or the manner of applying his science. Or if it is his intention to become a teacher of future students in schools or universities, it is also his intention to communicate again what he now learns, and to increase the stock of his knowledge by discoveries of his own, so that culture may not come to a stand-still. Hence he must know how to make these discoveries, and' how to develop them out of the human soul. But this acquiring a knowledge of the form of science is precisely what they, women, can not make use of, since they are to become neither teachers, preachers, doctors, or lawyers.

For their own intellectual culture, men only require the results of culture; and these results women learn also in society: in each condition of society the results of the whole culture of that condition. That which they envy us is, therefore, the unessential, the formal, the mere hull. By their position and by our conversation they are saved the trouble of working through this hull, and can receive its contents directly. They could not, indeed, make use of the form at all. Women are not habituated, and can not be habituated, to look upon the form as means, because they could be accustomed to do so only by making use of the form. Hence they look upon it as an end in itself, as something noble and excellent in itself. This is the reason why really learned women—I do not speak of those who reason purely through their common sense, for these are very estimable—are usually pedantic.

To prevent my being misunderstood, let me explain this further. It can not be maintained that woman is inferior to man in regard to talents of mind; but it can certainly be maintained that the minds of man and woman have, by nature, a very different character. Man reduces all that is in and for him to clear conceptions, and discovers it only through reasoning—provided, of course, his knowledge is a true conviction, and not a mere historical knowledge. Woman, on the other hand, has a natural sentiment of what is good, true, and proper. Not as if this were given her through mere feeling, for that is impossible; but when it is externally given to her, she has the faculty of judging quickly through her feelings, and without clear insight into the grounds of such judgment, whether it be true and good, or not. It may be said, that man must first make himself rational; whereas, woman is already rational by nature. This is, indeed, clearly to be deduced from the fundamental distinction between woman and man. Her fundamental impulse originally unites with reason, because it would cancel reason unless it did so unite; it becomes a rational impulse. And this is the reason why woman's whole system of feeling is rational, and made to correspond to reason, as it were. Man, on the contrary, must first subordinate all his impulses to reason, through exertion and activity.

Woman, therefore, is especially practical, and not at all speculative in her womanly nature. She can not and shall not go beyond the limit of her feeling. (This explains the well-known phenomenon, why some women have been known to become distinguished in matters of memory, as languages, and even in mathematics, so far as they can be learned through memory; and some also in matters of invention, in the gentler forms of poetry, in novel writing, and even in the writing of history. But no women are known to have been philosophers, or inventors of new theories in the mathematical science.)

A few words more concerning the passion of women to become authors—a passion which is constantly on the increase among them in these our days.

Literary labor can have only two ends in view: to make known new discoveries in sciences for the examination of the learned, or to communicate that which has already been discovered to the people at large by means of popular representations. We have seen that women can not make discoveries. Popular writings for women, writings on female education, moral books for the female sex, as such, etc., can certainly be most properly written by women; partly because they know their own sex better than man ever can know it, (that is, if they have the gift, also, of rising in part above their sex,) and partly because such books are generally more read by women. Even the learned man can extend his knowledge of female character from such writings. Of course, the woman must write as a woman, and must not appear in her writings as a badly disguised man.

I have presupposed, as it will be seen, that a woman will write only for her sex, and only for the purpose of being useful and to alleviate a discovered need of her sex; but on no account for our sex, or from motives of vanity or ambition. Not only would her works have little literary value in the latter case, but the moral character of the authoress would also be greatly injured. Her authorship would be nothing but another means of coquetting. If she is married, she receives, through her literary celebrity, an independence which necessarily weakens and threatens to dissolve her relation to her husband; or, if criticism is unfavorable, she will feel the reproof as an insult to her sex, and will embitter the days of herself and of her husband.


§ 4.Edit

CONCERNING THE LEGAL RELATION BETWEEN PARENTS AND CHILDREN IN A STATE.


I.

The original relation between parents and children is not merely determined through the conception of rights, but chiefly through nature and morality, precisely as the relation between husband and wife. Hence, our present investigation requires, as our previous investigation required, that we proceed from principles which are higher than those of law, in order to obtain, first of all, an object for the application of law. For this natural and moral relation may very possibly involve further determinations, which the conception of law has to regulate.

The attempts to constitute the whole relation a simply legal one have failed by reason of their absurd presuppositions; as, for instance, that children are property of the father, by reason of the act of generation being a species of manufacture, etc.

II.

The fruit generates itself in the womb of the mother as a part belonging to her. Her own health and life are conditioned by those of the fruit; and, what is important above all things here, in the case of the mother, this condition is not merely so, as in the irrational animal, but is, moreover, known to be so. It is not merely mechanically necessary that she should generate the fruit out of herself, and form it in her womb, but her own consciousness forces upon her considerate care of its preservation.

In virtue of a law of nature, which is most assuredly universal, the child is not born without pain. The moment of the child's birth is for the mother a moment of relief from pain, and hence, necessarily, a joyful moment. Joy connects the mother with the existence of the child.

Even after the child is born, the organic tie which connects mother and child is not yet dissolved. The mother continues to furnish the food from her body, which she finds the same need to give to the child as the child to take it.

(An organic body comprises all those parts, in one of which is an impulse to satisfy a need in the other, which that other part can not satisfy of itself; and the other of which is an impulse to satisfy a need of the first, which the first can not satisfy of itself. And this relation I call the organic tie of the parts. Since it is only in the body of the mother that nature prepares the food which is most advantageous for the child, and since nature has provided no other way of relieving the mother of her milk than through the mouth of the child, an organic tie connects them even after they have become two separate bodies. It appears to me worth while to observe, how far this law of nature prevails also in the vegetable kingdom, since the young plant does not separate at once from the mother-body.)

III.

This law of nature, operating in the animal and vegetable kingdom, impels animals and plants to assist in the growth of external bodies. This impulse impels them necessarily; the impulse and the activity required by it arise at the same moment. But in intelligent beings there arises between the impulse and the act required by it a third link—consciousness. The intelligence becomes conscious of this natural impulse, as of a sentiment. This sentiment is the necessary product of the natural impulse, and succeeds it immediately; or, to speak still more strictly, this sentiment is the natural impulse in the intelligence. The act required by the impulse or sentiment, however, does not succeed in this necessary and immediate manner, but is conditioned by an application of freedom.

The natural impulse in animals and plants impelled them to take care of a strange body as of their own. How is this impulse likely to manifest itself in human intelligence? Doubtless as a feeling of the needs of another body; precisely as the mother feels her own needs. Such a feeling is called sympathy. Sympathy, therefore, is the form in which the natural instinct of the mother for her child manifests itself; and this sympathy has the same end which the instinct of nature has—the physical preservation of the child.

A mother is impelled by the sympathy which is an instinct of her nature to take care of the preservation of her child. Nature and reason combined have established this mechanism for the preservation of the child. Of course, a mother may resist it, since reason or freedom assists also in this mechanism, but only by becoming unnatural. Naturally, no mother resists it.

The question of rights does not occur yet at all. It is as absurd to say that the child has a right to demand this physical preservation from its mother, as it is to say that a branch has the right to grow on the tree; and as absurd to say a mother must be compelled to preserve her child, as it is to say the tree must be compelled to bear the branch. It is a law of nature, although connected with reason.

IV.

There is an impulse in human nature generally, and hence, also, in man, to take care of the weak and helpless. This universal impulse will doubtless speak in the father for his child; but since it is a universal impulse, based upon the mere sight of helplessness, it will speak for every child, and there is no reason why a father should feel a particular preference for his own child. Such a preference, however, we must discover; and since the whole relation is a physical one, this love can only have a physical ground. But there is no physical tie to connect father and child; and hence it is to be assumed that the father has no immediate love for his child. For the natural relation in the act of generation does not involve it, since as such act, as generation of a particular individual, it does not occur in consciousness at all.

The special love of a father for his child results originally—what its sources may be in our opinion as influenced by our social institutions, we do not investigate here—from his tenderness toward the mother. This tenderness makes all the wishes and desires of the mother his own, and hence, also, her wish to take care of the preservation of the child. Precisely as this is naturally the necessary duty of the mother, so does it now, by transfer, become that of the father also; for both are only one subject, and their will is one.

It is absurd to speak of the right of the mother to compel the father to maintain the child. The ground upon which it has been believed that such a right could be based is not sufficient. It was believed that the mother might say to the father: "Thou art the cause of my having a child; assume, therefore, the burden of taking care of it." But the father can justly reply: "Neither I nor thou intended it; nature gave the child to thee, not to me; bear the results which have fallen upon thee just as I should have had to bear the results which might have fallen upon me."

It would be different if both parties had arranged a contract about the maintenance of the child. But even in such a case the state must have guaranteed the contract to make it legally binding.

V.

The parents live together, and the child, recommended to the care of both by nature, must also live together with them.

A natural impulse leads man to apprehend reason in all external nature so far as it is any way possible, and to treat objects (for instance, animals) as if they had reason. The parents will doubtless treat their child thus, and induce it to manifest free activity; and the child will assuredly, under such treatment, soon manifest reason and freedom. According to the necessary conceptions of men, freedom appertains to welfare, and hence the parents, who desire the welfare of their child, will doubtless give him freedom. But many a use of freedom might be detrimental to the preservation of the child's life and health, which are also objects of the parents. Hence, the parents will restrict that freedom to such an extent that its exercise may not endanger the preservation of the child. This is the first conception of education. The parents will educate their child, because they both love it and wish to preserve it from danger.

It can not be said that the child has a right to compel education, or that the parents are compelled to educate. Whether the state has any thing to do with the matter will appear hereafter.

VI.

It is the universal moral duty of every moral and good man, to diffuse and promote morality everywhere about him. Each free being, and hence, also, the child, is susceptible to morality. Living together with its parents, the parents, if they are moral themselves, will make use of all possible means to develop morality in the child; and this is the conception of higher education.

(We do not teach morality here, and hence we can not say, they shall do it; but only, they will do it. We merely state natural and moral facts in order to get objects for the application of the conception of rights.)

This education involves the following two conditions: 1st, the powers of the child must be developed and cultivated for various uses; and 2d, the morality of the child must be awakened.

To attain the first object, the freedom of the child must be limited; every use of this freedom which conflicts with the end of preserving the health and life of the child, and with the end of developing the powers of the child must be prohibited, and every use thereof which tends to promote these ends must be insisted upon. It is only for the purpose of awaking the morality of the child, that its freedom must not be restricted; for morality develops itself in man of itself, and can not be produced by force or artificial measures.

VII.

Only the parents have a full knowledge of the end of the children's education; not the children themselves, who are to be educated. Hence, only the parents, and not the children, can judge what measures are necessary for that end. They are their own judges in their own case so far as the child is concerned; they are sovereign and the child is unconditionally subject to them, in so far as they educate it. It is for their own conscience to tell them that they must use this sovereign power only for the purpose of educating the child as they deem best.

VIII.

The possibility of a state depends upon the fact that its population remains pretty nearly the same numerically; for all its measures of protection, taxation, etc., are calculated with a view to that specific number. If mortality should constantly decrease that number, the calculation would turn out wrong, disorders would ensue, and finally the state would utterly perish. The numerical equality of population, however, is conditioned by the fact that the dying-out generation is replaced by new citizens.

Each citizen of a state promises, in the original compact, that he will promote, as far as lies in his power, all the conditions of the possibility of the state; hence, also, the condition just mentioned. This he can best do by educating children who may grow up to realize various ends of reason. The state has the right to make this education of children a condition of the state-compact, and thus education becomes an external, legal obligation, which the parents owe to the state.

I have spoken of the education of children generally; for the end of the state is realized by it. Now, it can not be left to the arbitrariness of the citizen what particular child he chooses to educate, since this would involve endless and unsolvable law disputes. A general law must be made to settle this matter, and the most rational provision is, that the parents should be obliged to educate their own children.

IX.

If the children are the offspring of a lawful and rational marriage, there is no difficulty about this. If, however, they come from a marriage which has not been legally solemnized at first, and which, after having been solemnized, was followed by an immediate divorce, or if they are the offspring of a concubinage, the care and education of the child devolves upon the mother as the one whom nature herself has intrusted with it; for both parents—if separated—can not educate it. The father, however, contributes his share to the child's maintenance and education in money.

X.

Infanticide committed by the mother is doubtless a monstrous, unnatural crime; for to commit it the mother must have silenced all the feelings of nature; it is, however, no offense against the external rights of the child. The child has no legal rights upon its mother. It is an offense against the laws of the state, which provide that all children must be educated, and in so far it is to be punished. This crime belongs to the class of crimes which exhibit an unnatural brutality and savage disposition, and hence to that class for which the state must provide institutions of correction. Infanticide is, therefore, to be punished with imprisonment in such institutions until reform has taken place.

(Some ancient republics, fearing too large an increase of population, especially of their privileged classes, their real citizens, permitted the exposition of infants, particularly if they were weak; and hence, indirect infanticide was allowed by law. To command it, no state has a right; for it has no right to command any thing that is immoral or is a sin against nature. Nor has the state even a right expressly to permit it; for such a permission is immoral, and dishonors the state and its citizens. But if a state tacitly permits it, no legal objection can be raised; for it is not the state's business to take positive care of the morality of its citizens; and new-born children have no external rights except in so far as the state guarantees them their life, which the state is bound to do only so far as the possibility of its own preservation depends upon it)

XI.

The state has, therefore, the right to provide that children are kept alive, fed, clothed, and raised among men; for these are exclusive conditions of their becoming eventually men and citizens.

XII.

The state makes it the duty of parents to educate their children. Hence, the state necessarily guarantees to them the conditions of the possibility of such education. One of these conditions is, that no other citizen shall be allowed to take their children from them in order to educate them. Hence, the state necessarily guarantees to all parents the exclusive right to keep their own children. If a law dispute arises, the law must decide in favor of the true parents.

Education requires also a fixed plan and uniformity of principle, according to which the children are to be educated. This plan would be disturbed if strangers had a right to interfere, and to influence the children. Complaint can be preferred against such interference, and the law must decide in favor of the true parents.

XIII.

If the parents are moral, the education of their children is to them a matter of conscience. They wish to educate them as morally good as possible; but each one necessarily considers his own principles the best and most correct; for if he did not, and retained them, he would act immorally. Now, the state can not interfere in matters of conscience. The state itself can not, therefore, interfere in education. The state has the right to establish public schools; but it is for the parents to decide whether they will take advantage of them or not The state has no right to compel them to do so.

XIV.

Neither the state, nor any citizen, nor the child itself—since it is the object of education—has a right to decide upon the principles which are to govern the education of the children; hence, the parents are the sole judges. No law dispute can arise between children who are being educated and their parents. The parents are, in this matter, the final appeal, and sovereign. The state has no more right to regulate this relation than that between husband and wife by law.

XV.

Hence, the control of parents over children is based solely upon the parents' duty to educate them. This duty of education is established by nature and is guaranteed by the state. To consider the children as property of the parents is absurd.

XVI.

The state has the right to watch that the child is -educated; hence, also, the right to prevent any use of the child which would evidently annul all education. The state can not, therefore, allow children to be used as property; for example, a son to be sold into slavery.

XVII.

Only free persons are responsible before the law. Children are not free, for they are under the guardianship of their parents. Their father—as equally the representative of their mother—is thus their legal guardian. They have no rights for him to defend, since they are not yet themselves citizens; but when they have committed any trespasses, the father is justly held responsible; for the children are under his supervision, and he ought to have prevented them from committing such trespasses.

Children can be subjected to no public punishment; for they are not subject to the penal laws of the state. They are subject only to the penal laws of their parents, who punish them as they see fit.

XVIII.

The only ground for the control of parents over their children is the need of education. When the ground ceases, so does the grounded. When the education is completed, the child becomes free. But only the parents can decide when it is completed, since only they have preestablished its final end. If they hold that the child is sufficiently educated, they voluntarily give it freedom. They should, indeed, increase the freedom of the child constantly during the progress of education, as one of the rules of such education, and not as a right which the child has; and when they cut the last tie, the child is wholly free.

Or this tie may be cut when it appears, from the nature of the case, that the end of education is accomplished. The general end thereof is the utilizing of our powers for rational purposes, and the external judge of the matter is the state. True, the state can not directly liberate the children; for that would be interfering with their education; but it can do so indirectly, by giving to the son a civil office or some other civil right or privilege. Such an office liberates the child from parental authority.

Or, finally, the education, and hence, the subjection of children may be annulled, by making it, from the nature of the case, no longer possible. This occurs in marriage. The daughter is now unlimitedly subjected to the will of her husband, and can therefore no longer be subjected to the will of her parents. The son has now to care for the happiness of his wife with unlimited tenderness, and can not, therefore, allow himself to be disturbed in this care by the will of his parents.

But precisely because marriage puts an end to education, and because parents alone have a right to decide when the education is finished, the parents must also have the right to refuse their consent to the marriage of their children for a time, or to postpone their marriage.

They have not, however, the right to prohibit marriage generally to their children, nor to choose for them in marrying, from the reasons stated heretofore.

XIX.

Husband and wife have their property in common. Children have no property. Where should they get it? Their parents owe them food and clothing, as means of education; and it is a duty they owe to the state, and which the state may enforce, to thus provide for their children.

But children work, it is said> and thus acquire property. This would be correct under the presupposition, which we have shown to be wrong, that formation gives title to property. But the object of this labor is merely to exercise their powers for educational purposes, and hence, the parents very properly take hold of its results as their property. The child can do nothing without the will of the parents; it can not, therefore, acquire property without their consent. Or does any one pretend that the right of property is founded upon a contract with the parents? Only free persons can make a contract; but children are not free in their relation to parents.

XX.

Each independent citizen must have property of his own, and must be able to tell the state what he lives from. Hence, the state can justly demand of the parents, who allow a child its full freedom, that they shall give a certain amount of property to it, or, to use a very characteristic word, that they shall endow it. How much they ought to give it depends upon their own discretion.

When two persons marry, the parents of both parties must agree as to whether both shall receive something, or only one of them, and what the amount shall be. It is no business of the state who furnishes the property, provided the new family can subsist.

XXI.

It is altogether arbitrary with the parents whether one of the children receives more than the other or not. It may be unfair, but it is not illegal. What legal ground could the child have to complain? All that it gets, it gets through the voluntary kindness of its parents.

XXII.

When the parents die, their rights in the sensuous world, and hence, also, their rights to property, utterly cease. It depends altogether upon the positive legislation of a state whether laws of inheritance shall be established or whether parents shall have the right to make wills; and if so, to what extent they may will away their property to strangers, etc. These are questions purely of expediency, and not of a priori law.

XXIII.

We have deferred to reply to the question, To whom children are to be assigned when their parents are divorced? because the reply was not well possible before we had a thorough insight into the relation between parents and children.

Since parents have unlimited control over their children, parties who are being divorced must have the right to come to an agreement about it among themselves. The state has nothing to say in the matter, provided the education of the children is secured. It is only when the parents can not agree that the state decides. Only two grounds of such a dispute among parents are thinkable. Either neither of them wishes to undertake the care of the children, or both wish to retain the children.

In the former case the decision is this: The duty to take care of the children is immediate duty only for the mother, and for the father it is only a mediate duty derived from his love for the mother. The latter, and hence the natural, ground of his paternal tenderness having ceased, the children are to be returned to the personal care and attention of the mother; but the father must contribute to their maintenance; and the state has to see that he does so according to his means.

In the second case, the decision is this: The legally grounded object of the state is, that the children shall be educated in the best possible manner. As a rule, the mother is the most proper person to educate daughters, and the father the most proper person to educate sons. General laws can take cognizance only of such rules; and hence the mother receives the daughters and the father the sons.

As a matter of course, the child generated in adultery is not to be maintained by the husband, but by its true father.