244. On similar grounds, it is undesirable that adultery as such should be treated as a crime, that penal terror should be associated with it. Though rights, in the strict sense, undoubtedly arise out of marriage, though marriage has thus its strictly legal aspect, it is undesirable that this legal aspect should become prominent. It may suffer in respect of its higher moral purposes, if the element of force appears too strongly in the maintenance of the rights to which it gives rise. If a husband who would otherwise be false to the marriage-bond is kept outwardly faithful to it by fear of the punishment which might attend its breach, the right of the wife and children is indeed so far protected, but is anything gained for those moral ends, for the sake of which the maintenance of these rights is alone of value? The man in whom disloyal passion is neutralised by fear of punishment will contribute little in his family life to the moral development of himself, his wife, or his children. If he cannot be kept true by family affection and sympathy with the social disapprobation attaching to matrimonial infidelity (and unless it is a matter of social disapprobation no penalties will be effectually enforced against it), he will not be kept true in a way that is of any value to those concerned by fear of penalties. In other words, the rights that arise out of marriage are not of a kind which can in their essence be protected by associating penal terror with their violation, as the rights of life and property can be. They are not rights to claim mere forbearances or to claim the performance of certain outward actions, by which a right is satisfied irrespectively of the disposition with which the act is done. They are claims which cannot be met without a certain disposition on the part of the person upon whom the claim rests, and that disposition cannot be enforced. The attempt to enforce the outward behaviour in order to satisfy the claim, which is a claim not to the outward behaviour merely but to this in connection with a certain disposition, defeats its own end.
245. For the protection, therefore, of the rights of married persons and their children against infidelity, it does not appear that the law can do more than secure facilities of divorce in the case of adultery. This indeed is not in itself a protection against the wrong involved in adultery, but rather a deliverance from the further wrong to the injured husband or wife and to the children that would be involved in the continuance of any legal claim over them on the part of the injurer. But indirectly it helps to prevent the wrong being done by bringing social disapprobation to bear on cases of infidelity, and thus helping to keep married persons faithful through sympathy with the disapprobation of which they feel that they would be the objects when they imagine themselves unfaithful. The only other effectual way in which the state can guard against the injuries in question is by requiring great precaution and solemnity in the contraction of marriages. This it can do by insisting on the consent of parents to the marriage of all minors, exacting a long notice (perhaps even a preliminary notice of betrothal), and, while not preventing civil marriage, by encouraging the celebration of marriage in the presence of religious congregations and with religious rites.