Thus much concerning the natural rights of man in what has been termed his unrelated state. I come now to specify and to consider those peculiar relations, by virtue of which a man is entitled to the enjoyment of peculiar rights, and obliged to the performance of peculiar duties.
I begin with marriage, which forms the near relation between husband and wife.
Whether we consult the soundest deductions of reason, or resort to the best information conveyed to us by history, or listen to the undoubted intelligence communicated in holy writ, we shall find, that to the institution of marriage the true origin of society must be traced. By that institution the felicity of Paradise was consummated; and since the unhappy expulsion from thence, to that institution, more than to any other, have mankind been indebted for the share of peace and harmony which has been distributed among them. "Prima societas in ipso conjugio est," says Cicero in his book of offices; a work which does honour to the human understanding and the human heart
Legislators have, with great propriety, carried their views still farther; they have provided, as far as municipal law can provide, against the violation of rights, indispensably essential to the purity and harmony of the matrimonial union. Treachery, upon any occasion, is sufficient to stain a page in the annals of life; but perfidy against the solemn engagements of marriage obliterates the impression of happiness from every subsequent part of the conjugal history. Upon this subject, however, so interesting to the finest sentiments and emotions of the heart, every thing, that might be wished, cannot, we fear, be expected from the operation of human laws. Much must be left to the influence of that legitimate honour, which we have described as the inseparable friend and companion of virtue
In the heroick ages of Greece, we are told, the rights of beauty and feminine weakness were highly respected and tenderly observed. The simplicity of those ages was equally remote from the cruel tyranny of savages, which condemns the fair sex to servitude, and the sordid selfishness of luxury, which considers them solely as instruments of pleasure. Hence those affecting scenes so exquisitely described by Homer, which, in the interviews of Hector and Andromache, exhibit the most striking image of nuptial felicity and love. But this beautiful picture of ancient manners was soon miserably defaced; and, in the degenerate periods of Greece, the fair sex were as much neglected and despised, as they had been loved and admired in the heroick ages.
In those degraded times, of which I am now obliged to speak, no pains were employed to render the Grecian females agreeable members of society, in any one part of their lives. Education was either entirely withheld from them; or it was directed to such objects as were fitted to contract and debase, instead of elevating and enlarging the mind. When they were grown up, they were thrown away in marriage, without being consulted in the choice; and by entering into this new state, they found the severe guardianship of a father succeeded by the absolute dominion of a husband
Let us now turn our attention to Rome. You recollect, that, by a law of Romulus, "the wife fell into the power of the husband." The law, which, on the whole, was very susceptible of a construction mild and generous, received from this part of it an interpretation most unwarrantable and severe. By this interpretation, coloured with the unnatural fiction, that, on a solemn marriage, the wife was adopted by the husband, he acquired over her all the tremendous plenitude of Roman paternal power. This extreme, as is usual, soon produced its opposite; and female servitude was exchanged for female licentiousness. The solemnities of the ancient nuptials were declined, in order to avoid the odious consequences superinduced upon them by the construction and fiction of law; and the parties, without losing, on either side, their independence or their name, subscribed definite and stipulated articles of a marriage contract. Their cohabitation, and the appearances of a common interest which they exhibited, were received, without investigation, as sufficient evidence of a regular and solemn marriage. Hence the detestable train of conjugal vice, infidelity, rage, rancour, and revenge, with which so many volumes of the Roman story are crowded and disgraced.
By the precepts of Christianity, and the practice of the Christians, the dignity of marriage was, however, restored.
In the eye of the common law, marriage appears in no other light than that of a civil contract: and to this contract the agreement of the parties, the essence of every rational contract, is indispensably required
It will be proper, in the next place, to consider the consequences of marriage.
The most important consequence of marriage is, that the husband and the wife become, in law, only one person: the legal existence of the wife is consolidated into that of the husband. Upon this principle of union, almost all the other legal consequences of marriage depend. This principle, sublime and refined, deserves to be viewed and examined on every side. Among human institutions, it seems to be peculiar to the common law. Peculiar as it is, however, among human institutions, it seems not uncongenial to the spirit of a declaration from a source higher than human“They twain shall be one flesh.”
Even of the common law, this was not always a principle. We are told by the learned Selden, that the Saxon wives were never one with their husbands; nor were they, as wives, under the view of the frank-pledge: a Saxon wife was obliged to give pledge by her friends, that she would do no wrong. She passed as an appurtenant to her husband, rather than one in unity with him: and her estate was rather appurtenant to her than to him: for if she failed in her good carriage to her husband, she was to make him amends out of her own estate; and if that was insufficient, then her pledges were to make satisfaction for her. This interposition of friends between husband and wife, in matters respecting either their conduct or their claims, seems alien to the delicacy and nearness of the matrimonial connexion. On very pressing emergencies, indeed, it is necessary that the law should interfere, and on such emergencies we shall see that it does interfere; but the general presumption and the universal wish ought to be, that, between husband and wife, there subsist or may subsist no difference of will or of interest
In pursuance of this principle, a crime, except treason and murder, committed by the husband and wife, shall be charged against him solely; because the law will suppose that she acted under his influence or coercion. In pursuance of the same principle, a husband and wife cannot be witnesses for or against one another: if they were permitted to give testimony for one another, one maxim of the law would be violatedNo one can be a witness in his own cause: if they were permitted to give testimony against one another, another maxim of the law would be violatedNo one is obliged to accuse himself.
But, as has before been intimated, whenever urgent emergencies arise; whenever any outrage is threatened or committed against the peace or safety of society, as well as against the refined rules of the conjugal union; the law will interpose its authority, and, though it will not order, because it cannot enforce its orders for observing the latter, it will order, because it can enforce its orders for preserving the former.
The refined delicacy of the maximthat husband and wife are considered as one person by our lawappears now in a beautiful and striking point of view. The rights, the enjoyments, the obligations, and the infelicities of the matrimonial state are so far removed from her protection or redress, that she will not appear as an arbitress; but, like a candid and benevolent neighbour, will presume, for she wishes, all to be well.
To the other rights and to the other duties of a marriage life, we must extend the observations which we have already applied to one of them. Reliance must be placed on that honour, which is the inseparable friend and companion of virtue.
I have spoken concerning those consequences of marriage, which relate to the persons of the husband and wife: the consequences which relate to their property, will be fully considered under the second great division of my system: you observe, that I carefully avoid the blending of the two divisions.
By that event which closes the scene of all sublunary enjoyments, marriage is dissolved: it may be dissolved soonerby divorce.
To the law of England, two kinds of divorce are knowna divorce from the bed and the tableand a divorce from the chainsthe metaphor is proper on this occasiona divorce from the chains of matrimony. The propriety of the first kind, I am, I confess, at a loss to explain: that of the second kind is frequently obvious. When, as we have seen, the impression of happiness must be obliterated from every succeeding part of the conjugal history, why should any more blackened pages be added to the inauspicious volume? But of causes which are slight or trivial, a divorce should, by no means, be permitted to be the effect. When divorces can be summoned to the aid of levity, of vanity, or of avarice, a state of marriage becomes frequently a state of war or stratagem; still more frequently, a state of premeditated and active preparation for successful stratagems and war. Such was the case in ancient Rome. "Passion, interest, or caprice," says the historian of her falling state [Gibbon], "suggested daily motives for the dissolution of marriage; a word, a sign, a message, the mandate of a freeman declared the separation; the most tender of human connexions was degraded to a transient society of profit or pleasure."
Cicero, after having said, as we have seen, "prima societas in ipso conjugio est," adds, "proxima in liberis." I consider, in the next place, the relation of parent and child.
The transition is, indeed, a natural one. The sentiments of parental affection are generally warm and tender, in proportion to those of conjugal love. The sentiments of filial duty are generally sincere and respectful, in proportion to those of parental affection.
It is the duty of parents to maintain their children decently, and according to their circumstances; to protect them according to the dictates of prudence; and to educate them according to the suggestions of a judicious and zealous regard for their usefulness, their respectability, and their happiness.
The formidable power of a Roman father is unknown to the common law. But it vests in the parent such authority as is conducive to the advantage of the child. When it is necessaryand a real necessity exists much more rarely than is often imagineda moderate chastening may be administered; but every milder means should be previously used. Part of his authority he may delegate to the person intrusted with his child's education: that person acts then in the place, and he ought to act with the disposition, of a parent. The legal power of a father ceases, when the child attains the age of twenty one years.
But,for we now turn to the duties of childrenas obedience and subjection to their parents are due from them during their minority; honour and reverence are naturally and justly expected from them ever afterwards. If it become necessary, the child should, according to his circumstances, maintain the parent: 'tis but a natural and grateful return for the maintenance, which the parent has given to the child.
The decent reserve which the common law has shown, with regard to the relation between parent and child, should be admired, and may be accounted for on the same principles, which were observed under the relation of husband and wife. The civil law [in continental Europe] interposed in the nice feelings and tender transactions of both relations, with a rude and indelicate management. In that law, we find an enumeration of fourteen different reasons, for which a father may disinherit his child. Would it not have been much more natural, to have left, as the common law has left, this subject to the decision of that judge, which holds its tribunal in every parent's breast?
A bastard is one who is born out of lawful marriage. By law, he is considered quasi nullius filius ["as if no offspring"]. But surely it is the natural duty of his parents to maintain, to protect, and to educate him
[From the Claremont Institute's Founders' Library, downloaded January 1999, www.founding.com.]