Marriage Jewish Scriptures: And they shall be one flesh :' and 'The husband is the head of the wife 7.' Even the outward forms of marriage are not indifferent. ceremony. A form which emphasises the intimacy and sanctity of the relation is to be preferred to one which treats it as the arbitrary result of a mere agreement. The old Roman principle that consensus facit nuptias' is dangerous because it leads to the idea that marriage is a merely conventional relation and hence it is only natural that the customs of many peoples demand a religious ceremony, and the usage of the Christian Church lays stress on this. But, further, the legal security of the family, which is of the utmost importance, is incompatible with a secret marriage, and is only satisfied by a public form with documentary evidence. The 'civil form' satisfies these conditions. Had not the ecclesiastical form been abused by the clergy to interfere with the freedom of marriage recognised by the State, and to make legislation dependent on the views of the Church, modern States might have rested satisfied with it. But these abuses, and the existing diversity of religious opinion, have made a purely civil form necessary. A twofold form is now in use. (1) The civil marriage before the officers of the State, which is necessary to make a marriage valid. (2) The subsequent ecclesiastical ceremony, conducted by a clergyman, which gives a religious sanction to the marriage. This is voluntary. Gen. i. 2-24, quoted by Paul, Ep. to Ephes. v. 31: 'Therefore shall a man leave his father and his mother, and shall cleave unto his wife: and they shall be one flesh.' Tacitus, Germ. 19 (of German wives): 'Sic unum accipiunt maritum, quo modo unum corpus, unamque vitam, ne ulla cogitatio ultra, ne longior cupiditas, ne tanquam maritum, sed tanquam matrimonium ament.' Schwabenspiegel (Wack. 6): 'Wan die (ein man unde sin wip) reht unde redelichen zer ê chomen sint, da ist nicht zweiunge an, si sint wan ein lip.' 7 said . . . thy desire shall be to thy ... Ġen. i. 3-16: 'Unto the woman he husband, and he shall rule over thee.' Paul, Ep. to Eph. v. 22: Wives, submit yourselves unto your husbands.' Sachsenspiegel, i. 45. § 1: 'Al ne si en man sime wive nicht evenburdich, he is doch ire vormünde, unde se is sin genotinne, unde trit in sin recht, swenne se in sin bedde gat.' Code Civil, Art. 213: 'Le mari doit protection à sa femme, la femme obéissance à son mari.' Austrian Code, § 91: Der Mann ist das Haupt der Familie.' Code of Zurich, § 127: 'Der Ehemann ist das Haupt der Ehe.' ment of marriage. The emperor Augustus made an attempt to encourage Encouragemarriage and population by law. Such measures could only be necessary in an unhealthy and abnormal condition of the people. The life of large towns is apt to be unfavourable to marriage, and in Rome the liberty of bequest acted as an additional check, since a rich man who was unmarried could be sure of being cared for in his old age by the servile complaisance of greedy relatives and friends. Augustus might well say 'It is not houses, or colonnades, or market-places which make a city, but its men. . . . If you persist, Rome will become the prey of Greeks or barbarians". But in the country, too, we find legal restrictions with a view to maintaining peasants' holdings, and to prevent the partition of estates. Thus in many places only two children inherit (Zweikindersystem), in others all but the eldest son (der Erbsohn) are regarded as farm-servants, or sent abroad. The means which the State can use to encourage marriage and population are limited, and in any case, as Augustus found, are unpalatable. Marriage cannot be directly enforced, because the freedom and will of the parties is essential to it. Even in the case of the head of the State, where public interest may make a marriage very desirable, the will of the State has to give way rather than encroach upon individual rights or violate human freedom. Queen Victoria successfully maintained the freedom of the monarch in this respect against urgent political considerations. The State can only act indirectly, by attaching privileges to marriage, and disadvantages to celibacy, without treating the latter as a crime; and this was the method adopted by Roman legislation. on mar riage. In modern States, on the other hand, it is more common Restraints to find restraints put upon marriage in the interest of public welfare'. Such laws are prompted by an unsound condition of society, especially by the evil of classes without property or occupation. The community may then demand, in its own interest, that those who wish to marry and found new families a [Dio Cass. Ixi. 2-9.] b [For laws and customs restraining marriage, see Mill, Political Economy, Book ii. chap. xi.] Marriage and divorce. should prove that they can support a family without burdening the public. But to go beyond this, and make marriage conditional on the arbitrary consent of the State, is an unjustifiable infringement of individual rights. Further, legal restrictions on marriage rather promote than hinder the birth of illegitimate children, and so increase the number of the illfed and ill-cared-for population. The foundation of a family and the help of the wife exert a moralising influence on the husband, and may even be economically advantageous and therefore, as a rule, freedom of marriage is to be recommended. If the laws have in view the good of all, they must make it possible for the poor man to choose a mate in his poverty and a legitimate mother for his children. The State cannot properly interfere with the private relations of man and wife. But it can and ought to punish breaches of conjugal fidelity, on the complaint of the injured party: and so defend the purity of marriage. Community of wives, as proposed by Plato for the guardians of his ideal State, degrades marriage and destroys the family. The prostitution of the wife, practised in some cases at Sparta, is a relic of barbarism. But the 'emancipation of the flesh,' advocated by the radical-socialist school, as a progress in the freedom of the individual, is a degradation of the moral freedom of man to the sensual freedom of dogs. Lastly, the State's provision for permanence of marriage and limitation of divorce must be mentioned. Even in pre-Christian times dissolution of the tie was not always left to the will of the individual man and wife. Many legal systems allowed the husband to dismiss his wife, though he was generally required to show sufficient reason, and, as we see in the old Teutonic laws, incurred serious disabilities if he could not. The wife, on the other hand, could not dissolve the marriage. These regulations, confirmed by custom, express the public regard for marriage as a union for life. It was a distinct breach in this conception when Rome, adopting the Athenian view, made free marriage dissoluble at the notice of either party (nuntium mittere uxori, s. marito). This was in 8 The Laws of Manu (iii. 46) lay down rules on the subject. great measure a result of the decay of morals at Rome, and again reacted on it. Christianity introduced a new and more complete law on this question. The words of Christ himself against divorce were so emphatic that, though they did not definitely create a new law or alter the old, they indirectly moulded the legal conceptions of Christian States. The Catholic Church developed a rigorous system of marriage law, and in spite of Christ's express recognition of adultery as a ground for divorce, in time came to forbid complete divorce altogether, and only to allow outward divorce (separatio a toro et mensa), and that on few and grave grounds. The medieval Christian States so far adopted this view that they allowed questions of divorce to be treated entirely before ecclesiastical tribunals. In more recent times the State has rightly resumed the treatment of these questions, and the Protestant Church has admitted divorce on ground of adultery or equivalent reasons. Finally, in deference partly to modern ideas of natural rights, partly in the interest of individual freedom, modern legislation has extended the grounds of divorce, and made it easier. But two principles have been generally retained :— (1) That marriage may not be dissolved merely by the will of one party, or the agreement of both, but only with the intervention and sanction of a court of law. (2) That this sanction must not be given without sufficient reason. The Church, speaking to the moral and spiritual nature of man, is the proper advocate of the principle of indissolubility which the ideal of marriage demands. The State, as concerned with external compulsion, is bound to consider the imperfections of actual conditions, and to permit the outward dissolution of marriages which have no inward unity or cohesion. But, so far as national customs and individual development allow, it ought still to retain the principle of indissoluble marriage as an ideal, and to subject divorce to a rigorous control. 9 Matt. v. 32, xix. 8; Mark x. 11, 12; Luke xvi. 18. CHAPTER XX. Political rights of women. Mill. THE RELATION OF THE STATE TO THE FAMILY. II. THE POSITION OF WOMEN. ITHERTO all nations have regarded women as belonging to the same people and nation as their husband or father, but as only indirectly connected with the State, not as full members of the State with full rights (vollberechtigte Statsglieder und Statsgenossen). But the modern period has given birth to a different view. As early as the French Revolution of 1789, a women's petition to the king demanded that political rights should be granted to women. The petition, though supported by Condorcet, was rejected with scorn by the National Assembly. In our own time the same demand has been advocated in different countries, and especially by John Stuart Mill both in his writings and in Parliament. In France, Édouard Laboulaye has spoken on the same side. In some States of America attempts have been made to give women a share in political rights and duties a. 1 The main reasons alleged by Mill for the direct participation of women in the State are: (a) Women have the same right as men to be well governed, and good government is the object of representation. But children have a natural right to be well governed, that is, to be protected by the State; but no one argues that they must therefore have a vote. The right to be well governed does not involve the right to take part in or to control the 1 Representative Government, ch. 8 [and The Subjection of Women]. a [In England female ratepayers have a vote for Town Councils and SchoolBoards.] |