Principles of Morals and

204/Jeremy Bentham
usually been, as in point of utility it ought constantly to be, a contract
entered into by the parties: that is, a set of signs, pitched upon by the
law, as expressive of their mutual consent, to take upon them this con-
dition. Secondly, and thirdly, with regard to the placing of the obliga-
tions which are the result of the contract, it is evident that they must rest
either solely on one side, or mutually on both. On the first supposition,
the condition is not to be distinguished from pure slavery. In this case,
either the wife must be the slave of the husband, or the husband of the
wife. The first of these suppositions has perhaps never been exempli-
fied; the opposing influence of physical causes being too universal to
have ever been surmounted: the latter seems to have been exemplified
but too often; perhaps among the first Romans; at any rate, in many
barbarous nations. Thirdly, with regard to the nature of the obligations.
If they are not suffered to rest all on one side, certain rights are thereby
given to the other. There must, therefore, be rights on both sides. Now,
where there are mutual rights possessed by two persons, as against each
other, either there are powers annexed to those rights, or not. But the
persons in question are, by the supposition, to live together: in which
case we have shown, that it is not only expedient, but in a manner nec-
essary, that on one side there should be powers. Now it is only on one
side that powers can be: for suppose them on both sides, and they de-
stroy one another. The question is then, In which of the parties these
powers shall be lodged? we have shown, that on the principle of utility
they ought to be lodged in the husband. The powers then which subsist
being lodged in the husband, the next question is, Shall the interest of
one party only, or of both, be consulted in the exercise of them? it is
evident, that on the principle of utility the interests of both ought alike to
be consulted: since in two persons taken together, more happiness is
producible than in one. This being the case, it is manifest, that the legal
relation which the husband will bear to the wife will be a complex one:
compounded of that of master and that of guardian.
LII. The offences then to which the condition of a husband of will
be exposed, will be the sum of those to which the two conditions of
master and guardian are exposed. Thus far the condition of a husband,
with respect to the general outlines of it, stands upon the same footing
as that of a parent. But there are certain reciprocal services, which be-
ing the main subject of the matrimonial contract, constitute the essence
of the two matrimonial relations, and which neither a master nor guard-
ian, as such, nor a parent, at any rate, have usually been permitted to

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Principles of Morals and Legislation/205
receive. These must of course have been distinguished from the indis-
criminate train of services at large which the husband in his character of
master is empowered to exact, and of those which in his character of
guardian he is bound to render. Being thus distinguished, the offences
relative to the two conditions have, in many instances, in as far as they
have reference to these peculiar services, acquired particular denomina-
tions. In the first place, with regard to the contract, from the celebration
of which the legal condition dates its existence. It is obvious that in
point of possibility, this contract might, on the part of either sex, subsist
with respect to several persons of the other sex at the same time: the
husband might have any number of wives: the wife might have any
number of husbands: the husband might enter into the contract with a
number of wives at the same time: or, if with only one at a time, he
might reserve to himself a right of engaging in a similar contract with
any number, or with only such or such a number of other women after-
wards, during the continuance of each former contract. This latter ac-
cordingly is the footing upon which, as is well known, marriage is and
has been established in many extensive countries: particularly in all those
which profess the Mahometan religion. In point of possibility, it is evi-
dent that the like liberty might be reserved on the part of the wife: though
in point of practice no examples of such an arrangement seem ever to
have occurred. Which of all these arrangements is in point of utility the
most expedient, is a question which would require too much discussion
to answer in the course of an analytical process like the present, and
which belongs indeed to the civil branch of legislation, rather than to the
penal. In Christian countries, the solemnization of any such contract is
made to exclude the solemnization of any subsequent one during the
continuance of a former: and the solemnization of any such subsequent
contract is accordingly treated as an offence, under the name of Po-
lygamy. Polygamy then is at any rate, on the part of the man, a particu-
lar modification of that offence which may be styled usurpation of the
condition of a husband. As to its other effects, they will be different,
according as it was the man only, or the woman only, or both, that were
in a state of matrimony at the time of the commission of the offence. If
the man only, then his offence involves in it pro tanto that of wrongful
divestment of the condition of a wife, in prejudice of his prior wife. If
the woman only, then it involves in it pro tanto that of wrongful divest-
ment of the condition of a husband, in prejudice of her prior husband. If
both were already married, it of course involves both the wrongful di-

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