The judge shall consider and determine the suitableness or unsuitableness of age in marriage;he shall make an inspection of the males naked,and of the women naked down to the navel.And if there be a lack of kinsmen in a family extending to grandchildren of a brother,or to the grandchildren of a grandfather's children,the maiden may choose with the consent of her guardians any one of the citizens who is willing and whom she wills,and he shall be the heir of the dead man,and the husband of his daughter.Circumstances vary,and there may sometimes be a still greater lack of relations within the limits of the state;and if any maiden has no kindred living in the city,and there is some one who has been sent out to a colony,and she is disposed to make him the heir of her father's possessions,if he be indeed of her kindred,let him proceed to take the lot according to the regulation of the law;but if he be not of her kindred,she having no kinsmen within the city,and he be chosen by the daughter of the dead man,and empowered to marry by the guardians,let him return home and take the lot of him who died intestate.And if a man has no children,either male or female,and dies without ****** a will,let the previous law in general hold;and let a man and a woman go forth from the family and share the deserted house,and let the lot belong absolutely to them;and let the heiress in the first degree be a sister,and in a second degree a daughter of a brother,and in the third,a daughter of a sister,in the fourth degree the sister of a father,and in the fifth degree the daughter of a father's brother,and in a sixth degree of a father's sister;and these shall dwell with their male kinsmen,according to the degree of relationship and right,as we enacted before.Now we must not conceal from ourselves that such laws are apt to be oppressive and that there may sometimes be a hardship in the lawgiver commanding the kinsman of the dead man to marry his relation;be may be thought not to have considered the innumerable hindrances which may arise among men in the execution of such ordinances;for there may be cases in which the parties refuse to obey,and are ready to do anything rather than marry,when there is some bodily or mental malady or defect among those who are bidden to marry or be married.Persons may fancy that the legislator never thought of this,but they are mistaken;wherefore let us make a common prelude on behalf of the lawgiver and of his subjects,the law begging the latter to forgive the legislator,in that he,having to take care of the common weal,cannot order at the same time the various circumstances of individuals,and begging him to pardon them if naturally they are sometimes unable to fulfil the act which he in his ignorance imposes upon them.
Cle.And how,Stranger,can we act most fairly under the circumstances?
Ath.There must be arbiters chosen to deal with such laws and the subjects of them.
Cle.What do you mean?
Ath.I mean to say,that a case may occur in which the nephew,having a rich father,will be unwilling to marry the daughter of his uncle;he will have a feeling of pride,and he will wish to look higher.And there are cases in which the legislator will be imposing upon him the greatest calamity,and he will be compelled to disobey the law,if he is required,for example,to take a wife who is mad,or has some other terrible malady of soul or body,such as makes life intolerable to the sufferer.Then let what we are saying concerning these cases be embodied in a law:-If any one finds fault with the established laws respecting testaments,both as to other matters and especially in what relates to marriage,and asserts that the legislator,if he were alive and present,would not compel him to obey-that is to say,would not compel those who are by our law required to marry or be given in marriage,to do either-and some kinsman or guardian dispute this,the reply is that the legislator left fifteen of the guardians of the law to be arbiters and fathers of orphans,male or female,and to them let the disputants have recourse,and by their aid determine any matters of the kind,admitting their decision to be final.But if any one thinks that too great power is thus given to the guardians of the law,let him bring his adversaries into the court of the select judges,and there have the points in dispute determined.And he who loses the cause shall have censure and blame from the legislator,which,by a man of sense,is felt to be a penalty far heavier than a great loss of money.
