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sent should be engrafted as the case permitted and required upon the divine institution, and that in all succeeding ages a man should be willing for this cause to leave his father and mother, and to cleave unto his wife, and they two should become one flesh.
There is another inaccurate statement, which is probably ascribed to higher authority than it deserves, and in which it is professed, that “ before man left his woods marriage was accidental ; in other words, the intercourse of the sexes was chiefly regulated by laws of instinct. Society changed the condition of man, and marriage necessarily became a civil contract. The progress of the social state, as it led to important moral reforms, was to beget a religious institution, and now the marriage contract is rendered sacred by a vow, taken as it were in the presence of God at the altar”.”
No one will be more ready to admit than the eminent lawyer to whom these sentiments are ascribed, that not only when man left his woods, but before he entered them, there was a bond of marriage, first known in paradise, existing at the deluge, confirmed and ratified when the sons of Noah left the ark. The laws of human instinct, in respect of marriage, were not a brutal passion, leading to promiscuous or casual intercourse, but a divine impulse directed to a permanent union for the care of a common offspring. There never was a state of society, in which marriage could be accidental, in
Speech of Sir W. Scott, on the Adultery Bill, Commons, May 30, 1800. Woodfall's Parl. Reports, vol. xxiii. p. 142.
which a mutual agreement or civil contract between the man and the woman was not also practicable. The violation or the forcible abduction of women is not the practice of the wilderness: the most untutored tribes have their laws of marriage. The laws of society, which alone could change the condition of mankind, and are said to have produced a moral reform, may have altered, but they could not originate, the civil contract, for marriage, more or less perfect in its kind, is found in the desert which civilized man never trod, as well as in the city, which is governed by his laws. The progress of the social state, unaided by the light of religion, has tended not to beget the “ religious institution,” but to corrupt the simplicity of the divine ordinance of marriage, which requires the permanent union of one man with one woman, by the introduction of polygamy and arbitrary divorces; and whatever forms of law it may have added to the vow of marriage, the vow itself is of primordial origin and universal right. The state of man in his native woods, is a state unknown to real history, the fiction of the orator and the poet, which, as suits their purpose, they make the Pandemonium of all vice, or the Elysium of every virtue and every grace. It is a sentence worthy of a Christian judge, that “ marriage, in its origin, is a contract of natural law; it may exist between two individuals of different sexes, although no third person existed in the world, as happened in the case of the common ancestors of mankind. It is the parent, not the child, of civil society. In civil society it becomes a civil contract, regulated and prescribed by law, and endowed with civil conse
quences. In most civilized countries, acting under a sense of the force of sacred obligations, it has had the sanctions of religion superadded. It then becomes a religious as well as a natural and civil contract : for it is a great mistake to suppose that because it is the one, therefore it may not likewise be the other. Heaven itself is made a party to the contract, and the consent of the individuals pledged to each other, is ratified and consecrated by a vow to God. . . . In the Christian Church marriage was elevated, in a later age, to the dignity of a sacrament, in consequence of its divine institution, and of some expressions of high and mysterious import respecting it contained in the sacred writings P."
The inaccuracy of the preceding statements is not the only objection to the proposition, that marriage is in its own nature a civil contract, and nothing more. In the terms of civil contracts there is nothing fixed or definite, nothing which may not be varied in accommodation to the law of states, or the caprice of individuals. By the former, marriage has been, and may be, prohibited, to numerous classes of society, to the clergy, and to slaves : polygamy has been sanctioned, divorces have been permitted at pleasure. When marriage, as in the popular apprehension of Scotland, is regarded merely as a civil contract, of which the terms are to be explained by the secret understanding and intention of the contracting parties, it is terminable like all other civil contracts by their mutual agreement and non-ad
p Dodson's Report of Sir W. Scott's Judgment of Dalrymple v. Dalrymple, p. 11.
herence. There is not only the extreme difficulty of proving the contract, but each under certain circumstances is free to depart from his engagement : a man may leave his wife, and a woman her husband, with as little compunction and restraint as they leave the house in which they have resided : in compliance with their passions or their interest, they may marry, they may separate; they may form marriages again and again ; they may do injury without remonstrance in virtue of the uncertain tenure of a mutual agreement and merely civil contract. So when of old agreement was considered as the essence of a contract, and marriage, regarded apart from its religious character, merely as a contract of a civil nature, it was thought to be dissoluble by the consent, and at the mutual pleasure, of both parties', and thus the principle of divorces bona gratia was established. It is recorded of the Abyssinians also, that although as a doctrine they admit marriage to be of divine institution, the law puts no restraint upon polygamy, and “
upon the whole marriage among them is no better than a firm bargain or contract, by which both parties engage to cohabit and join their stocks together as long as they like each other, after which they shall be at liberty to part'.” Marriage upon such conditions is little better than constancy in willing concubinage: and although in England all the disadvantages of marriage contracted upon such a principle may not be seen, and may be counteracted by a
• Tebbs's Essay on the Scripture Doctrines of Adultery and Divorce, p. 236.
- Mod. Univ. History, vol. xv. p. 80.
prevailing sense of the divine institution and the divine law of marriage, men have not yet forgotten the consequences of violating the Marriage Act of 1754, of which the avoiding clauses must be ascribed to the power assumed by the state to fix the terms of the civil contract, and could not have been introduced without the admission of that power. By this Act a defect even in the forms of the civil contract was made sufficient to supersede the religious obligation : the civil contract, the chief point contemplated by the law, was declared to be null and void ; private caprice was allowed to take advantage of the law, and unoffending truth could not escape its penalties. The parties agreed to-day to be called man and wife, to-morrow they agreed to renounce the title ; and who can blame their decision who maintains that marriage is in its own nature a civil contract and nothing more?
The writer who is most distinct in the assertion that marriage, considered in its own nature, and abstractedly from the rules of Scripture, is a civil contract, and nothing more, admits, that there is nothing in the nature of the contract in which it differs from other contracts, or which prevents arbitrary divorce, except the expedience and policy which are involved in the care of children, and the general happiness of married life: and no man, who reflects how arbitrary are the rules of expedience, that one sex is to judge of their application to the circumstances of the other, and that the construction of them may depend upon many private considerations, will suffer the law of marriage to rest on the unsettled basis of a merely civil contract.