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healthy offspring. Legal and political systems are accretions based upon marriage and property; but in the family rather than individualism we find the incentive to accumulation, and in the home the primary school of the virtues, private and public. At the same time marriage affords necessarily a discipline to both sexes; sexual indulgence is mutually permitted under healthy restraints; woman's condition becomes necessarily one of comparative subjection; man is tamed by her gentleness and the helplessness of tender offspring, and for their sake he puts a check upon his baser appetites, and concentrates his affection upon the home he has founded. Such is the conjugal union in what we may term a state of nature. And now, while man frames the laws of that union, as he always does in primitive society, he regards himself as the rightful head of the family and lord of his spouse; and, somewhat indulgent of his own errant passions, he makes the chastity of his wife the one indispensable condition of their joint companionship. She, on her part, more easily chaste than himself, views with pain whatever embraces he may bestow upon others of her sex. Her personal influence over him, always strong, enlarges its scope as the State advances in arts and refinement, until at length woman, as the maiden, the wife, and the matron, becomes intellectually cultivated, a recognized social power in the community. Yearning now for a wider influence and equal conditions, her attention, strongly concentrated upon the marriage relation, seeks to make the marriage terms more equal: first, she desires her property secured to her own use, whether married or single, and, indignant at the inadequate remedies afforded under the law for wifely wrongs, demands the right of dismissing an unworthy husband at pleasure; moreover, as a mother, she claims that the children shall be hers hardly less than the father's. These first inroads are easily made; for what she demands is theoretically just. But just at this point the peril of female influence is developed. Woman rarely comprehends the violence of man's unbridled appetite, or perceives clearly that, after all, in the moral purity and sweetness of her own sex, such as excites man's devotion and makes home attractive, is
the fundamental safeguard of life and her own most powerful lever in society, besides the surest means of keeping men themselves continent. She forgets, too, that, to protect that purity and maintain her moral elevation, a certain seclusion is needful; which seclusion is highly favorable to those domestic duties which nature assigns her as her own. More is granted woman. The bond of marriage being loosened, posterity degenerates, society goes headlong; and the flood-gates of licentiousness once fully opened, the hand must be strong that can close them again.
Happiness, we may admit, differs with the capacity, like the great and small glass equally full which Dr. Johnson mentions. Yet marriage is suited to all capacities; and men and women are the complement of one another in all ages, neither being greatly the intellectual superior of the other at any epoch, but the man always having necessarily the advantage in physical strength and the power to rule. The best-ordered marriage union for any community is that in which each sex accepts its natural place, where woman is neither the slave nor the rival of man, but his intelligent helpmate; where a sound progeny is brought up under healthy home influences. The worst is that where conjugal and parental affection fail, and all is discord and unrest, a sea without a safe harbor. To the household, stability may prove more essential than freedom, and woman's status more dignified or more degraded, as the case may be, than the law assumes to fix it. Under all circumstances, moreover, the physical superiority of the male companion, and his propensity to self-indulgence, are forces which woman will always have to reckon with.
§ 11. Remaining Topics of the Domestic Relations; Modern Changes. Of the remaining topics to be discussed in the present treatise, little need be said by way of general preface. These have felt the softening influences of modern civilization. The common-law doctrine of Parent and Child finds its most important modifications in the gradual admission of the mother to something like an equal share of parental authority; in the growth of popular systems of education for the young; in the enlarged opportunities of earning a livelihood
afforded to the children of idle and dissolute parents; and in the lessened misfortunes of bastard offspring. Guardian and Ward, a relation of little importance up to Blackstone's day, has rapidly developed since into a permanent and well-regulated system under the supervision of the chancery courts, and, in this country, of the tribunals also with probate jurisdiction; and much of the old learning on this branch of the law has become rubbish for the antiquary. The law of Infancy remains comparatively unchanged. Of Master and Servant, we have spoken.
We are now to investigate in detail the law of these several topics. But first the reader is reminded that the office of the text-writer is to inform rather than invent; to be accurate rather than original; to chronicle the decisions of others, not his own desires; to illumine paths already trodden; to criticise, if need be, yet always fairly and in furtherance of the ends of justice; to analyze, classify, and arrange; from a mass of discordant material to extract all that is useful, separating the good from the bad, rejecting whatever is obsolete, searching at all times for guiding principles; and, in fine, to emblazon that long list of judicial precedents through which our Anglo-Saxon freedom "broadens slowly down."
HUSBAND AND WIFE.
§ 12. Definition of Marriage. The word "marriage" signifies, in the first instance, that act by which a man and woman unite for life, with the intent to discharge towards society and one another those duties which result from the relation of husband and wife. The act of union having been once accomplished, the word comes afterwards to denote the relation itself.
§ 13. Marriage more than a Civil Contract. It has been frequently said in the courts of this country that marriage is nothing more than a civil contract. That it is a contract is doubtless true to a certain extent, since the law always presumes two parties of competent understanding who enter into a mutual agreement, which becomes executed, as it were, by the act of marriage. But this agreement differs essentially from all others. This contract of the parties is simply to enter into a certain status or relation. The rights and obligations of that status are fixed by society in accordance with principles of natural law, and are beyond and above the parties themselves. They may make settlements and regulate the property rights of each other; but they cannot modify the terms upon which they are to live together, nor superadd to the relation a single condition. Being once bound, they are bound forever. Mutual consent, as 1 See Stimson, Am. Stat. Law, § 6100.
in all contracts, brings them together, but mutual consent cannot part them. Death alone dissolves the tie, unless the legislature, in the exercise of a rightful authority, interposes by general or special ordinance to pronounce a solemn divorce; and this it should do only when the grossly immoral conduct of one contracting party brings unmerited shame upon the other, disgraces an innocent offspring, and inflicts a wound upon the community. So in other respects the law of marriage differs from that of ordinary contracts. For, as concerns the parties themselves, mental capacity is not the only test of fitness, but physical capacity likewise, a new element for consideration, no less important than the other. Again, the encumbrance of an existing union operates here as a special disqualification. Blood relationship is another. So, too, an infant's capacity is treated on peculiar principles, as far as the marriage contract is concerned; for he can marry young and be bound by his marriage. Third parties cannot attack a marriage and have it nullified because of its injury to their own interests. International law relaxes its usual requirements in favor of marriage. And finally the formal celebration now commonly prevalent, both in England and America, is something peculiar to the marriage contract; and in its performance we see but the faintest analogy to the execution and delivery of a sealed instrument.
The earnestness with which so many of our American progenitors insisted upon the contract view of marriage may be ascribed in part to their hatred of the Papacy and ritualism, and their determination to escape the Roman Catholic conclusion that marriage was a sacrament. By no people have the
marriage vows been more sacredly performed than by ours down to a period, at all events, comparatively recent. That a State legislature is not precluded from regulating the marriage institution under any constitutional interdiction of acts impairing the obligation of contracts, or interfering with private rights and immunities, has frequently been asserted.1 And as to the private regulation of their property rights, by the contract of
1 Maguire v. Maguire, 7 Dana, 181; Green v. State, 58 Ala. 190; Frasher v. State, 3 Tex. App. 263; Rugh v.
Ottenheimer, 6 Oreg. 231; Adams v.