233. In the consideration of those rights which do not arise out of
the existence of the state, but which are antecedent to it (though
of course implying society in some form), and which it is its office
to enforce, we now come to family or household rights--also called,
though not very distinctively, rights in private relations--of which
the most important are the reciprocal rights of husband and wife,
parent and child. The distinctive thing about these is that they are
not merely rights of one person as against all or some other persons
over some thing, or to the performance of or abstention from some
action; they are rights of one person as against all other persons
to require or prevent a certain behaviour on the part of another.
Right to free life is a right on the part of any and every person to
claim from all other persons that course of action or forbearance
which is necessary to his free life. It is a right against all the
world, but not a right over any particular thing or person. A right
of property, on the other hand, is a right against all the world, and
also over a particular thing; a right to claim from any and every
one certain actions and forbearances in respect of a particular
thing (hence called 'jus in rem'). A right arising from contract,
unlike the right of property or the right of free life, is not a
right as against all the world, but a right as against a particular
person or persons contracted with to claim a certain performance or
forbearance. It may or may not be a right over a particular thing,
but as it is not necessarily so, while it is a right against a
particular person or persons in distinction from all the world, it
is called 'jus in personam' as distinct from 'in rem.' The right of
husband over wife and that of parent over children (or _vice versa_)
differs from the right arising out of contract, inasmuch as it is
not merely a right against the particular person contracted with,
but a right against all the world. In this respect it corresponds
to the right of property; but differs again from this, since it is
not a right over a thing but over a person. It is a right to claim
certain acts or forbearances from all other persons in respect of a
particular person: or (more precisely) to claim a certain behaviour
from a certain person, and at the same time to exclude all others
from claiming it. Just because this kind of right is a right over a
person, it is always reciprocal as between the person exercising it
and the person over whom it is exercised. All rights are reciprocal
as between the person exercising them and the person against whom
they are exercised. My claim to the right of free life implies a
like claim upon me on the part of those from whom I claim acts and
forbearances necessary to my free life. My claim upon others in
respect of the right of property, or upon a particular person in
respect of an action which he has contracted to perform, implies
the recognition of a corresponding claim upon me on the part of all
persons or the particular party to the contract. But the right of a
husband in regard to his wife not merely implies that all those as
against whom he claims the right have a like claim against him, but
that the wife over whom he asserts the right has a right, though not
a precisely like right, over him. The same applies to the right of a
father over a son, and of a master over a servant.
234. A German would express the peculiarity of the rights now under
consideration by saying that, not only are persons the subjects of
them, but persons are the objects of them. By the 'subject' of rights
he would mean the person exercising them or to whom they belong;
by 'object' that in respect of which the rights are exercised. The
piece of land or goods which I own is the 'object' of the right
of property, the particular action which one person contracts to
perform for another is the 'object' of a right of contract; and in
like manner the person from whom I have a right to claim certain
behaviour, which excludes any right on the part of anyone else to
claim such behaviour from him or her, is the 'object' of the right.
But English writers commonly call that the subject of a right which
the Germans would call the object. By the subject of a right of
property they would not mean the person to whom the right belongs,
but the thing over which, or in respect of which, the right exists.
And in like manner, when a right is exercised over, or in respect of
a person, such as a wife or a child, they would call that person, and
not the person exercising the right, the subject of it. By the object
of a right, on the other hand, they mean the action or forbearance
which someone has a right to claim. The object of a right arising
out of contract would be the action which the person contracting
agrees to perform. The object of a connubial right would not be, as
according to German usage, the person in regard to, or over, whom
the right is exercised--that person would be the subject of the
right--but either the behaviour which the person possessing the right
is entitled to claim from that person, or the forbearances in respect
to that person, which he is entitled to claim from others. (Austin,
I. 378 and II. 736.) Either usage is justifiable in itself. The only
matter of importance is not to confuse them. There is a convenience
in expressing the peculiarity of family rights by saying, according
to the sense of the terms adopted by German writers, that not only
are persons subjects of them but persons are objects of them. It is
in this sense that I shall use these terms, if at all.
235. So much for the peculiarity of family rights, as distinct from
other rights. The distinction is not merely a formal one. From the
fact that these rights have persons for their objects, there follow
important results, as will appear, in regard to the true nature
of the right, to the manner in which it should be exercised. The
analytical, as distinct from the historical, questions which have to
be raised with reference to family rights correspond to those raised
with reference to rights of property. As we asked what in the nature
of man made appropriation possible for him, so now we ask (1) what
it is in the nature of man that makes him capable of family life. As
we asked next how appropriations came to be so sanctioned by social
recognition as to give rise to rights of property, so now we have to
ask (2) how certain powers exercised by a man, certain exemptions
which he enjoys from the interference of others, in his family life,
come to be recognised as rights. And as we inquired further how far
the actual institutions of property correspond with the idea of
property as a right which for social good should be exercised, so now
we have to inquire (3) into the proper adjustment of family rights,
as determined by their idea; in what form these rights should be
maintained; bearing in mind _(a)_ that, like all rights, their value
depends on their being conditions of which the general observance is
necessary to a free morality, and __(b)__ their distinctive character
as rights of which, in the sense explained, persons are the objects.
236. (1) We saw that appropriation of that kind which, when secured
by a social power, becomes property, supposes an effort on the part
of the individual to give reality to a conception of his own good,
as a whole or as something permanent, in distinction from the mere
effort to satisfy a want as it arises. The formation of family life
supposes a like effort, but it also supposes that in the conception
of his own good to which a man seeks to give reality there is
included a conception of the well-being of others, connected with
him by sexual relations or by relations which arise out of these. He
must conceive of the well-being of these others as a permanent object
bound up with his own, and the interest in it as thus conceived must
be a motive to him over and above any succession of passing desires
to obtain pleasure from, or give pleasure to, the others; otherwise
there would be nothing to lead to the establishment of a household,
in which the wants of the wife or wives are permanently provided
for, in the management of which a more or less definite share is
given to them (more definite, indeed, as approach is made to a
monogamistic system, but not wholly absent anywhere where the wife is
distinguished from the female), and upon which the children have a
recognised claim for shelter and sustenance.
237. No doubt family life as we know it is an institution of gradual
growth. It may be found in forms where it is easy to ignore the
distinction between it and the life of beasts. It is possible that
the human beings with whom it first began--beings 'human' because
capable of it--may have been 'descended' from animals not capable of
it, i.e. they may have been connected with such animals by certain
processes of generation. But this makes no difference in the nature
of the capacity itself, which is determined not by a past history
but by its results, its functions, that of which it is a capacity.
As the foundation of any family life, in the form in which we know
it, implies that upon the mere sexual impulse there has supervened on
the part of the man a permanent interest in a woman as a person with
whom his own well-being is united, and a consequent interest in the
children born of her, so in regard to every less perfect form out of
which we can be entitled to say that the family life, as we know it,
has developed, we must be also entitled to say that it expresses some
interest which is in principle identical with that described, however
incompletely it has emerged from lower influences.
238. (2) Such an interest being the basis of family relations, it
is quite intelligible that everyone actuated by the interest should
recognise, and be recognised by, everyone else to whom he ascribes
an interest like his own, as entitled to behave towards the objects
of the interest--towards his wife and children--in a manner from
which everyone else is excluded; that there should thus come to be
rights in family relations to a certain privacy in dealing with them;
rights to deal with them as his alone and not another's; claims,
ratified by the general sense of their admission being for the common
good, to exercise certain powers and demand certain forbearances
from others, in regard to wife and children. It is only indeed at an
advanced stage of reflection that men learn to ascribe to other men,
simply as men, the interests which they experience themselves; and
hence it is at first only within narrow societies that men secure
to each other the due privileges and privacies of family life. In
others of the same kin or tribe they can habitually imagine an
interest like that of which each feels his own family life to be
the expression, and hence in them they spontaneously respect family
rights; but they cannot thus practically think themselves into the
position of a stranger, and hence towards him they do not observe the
same restraints. They do not regard the women of another nation as
sacred to the husbands and families of that nation. But that power
of making another's good one's own, which in the more intense and
individualised form is the basis of family relations, must always at
the same time exist in that more diffused form in which it serves as
the basis of a society held together by the recognition of a common
good. Wherever, therefore, the family relations exist, there is
sure to exist also a wider society which by its authority gives to
the powers exercised in those relations the character of rights. By
what process the relations of husband and wife and the institution
of the household may have come to be formed among descendants of a
single pair, it is impossible to conceive or to discover, but in
fact we find no trace in primitive history of households except as
constituents of a clan recognising a common origin; and it is by the
customs of the clan, founded on the conception of a common good, that
those forbearances on the part of members of one household in dealing
with another, which are necessary to the privacy of the several
households, are secured.
239. The history of the development of family life is the history of
the process _(a)_ by which family rights have come to be regarded
as independent of the special custom of a clan and the special
laws of a state, as rights which all men and women, as such, are
entitled to. This, however, characterises the history of all rights
alike. It is a history farther _(b)_ of the process by which the
true nature of these rights has come to be recognised, as rights
over persons; rights of which persons are the objects, and which
therefore imply reciprocal claims on the part of those over whom they
are exercised and of those who exercise them. The establishment of
monogamy, the abolition of 'patria potestas' in its various forms,
the 'emancipation of women' (in the proper sense of the phrase), are
involved in these two processes. The principles (1) that all men and
all women are entitled to marry and form households, (2) that within
the household the claims of the husband and wife are throughout
reciprocal, cannot be realised without carrying with them not merely
monogamy, but the removal of those faulty relations between men and
women which survive in countries where monogamy is established by law.
240. Under a system of polygamy, just so far as it is carried out,
there must be men who are debarred from marrying. It can only exist,
indeed, alongside of a slavery, which excludes masses of men from
the right of forming a family. Nor does the wife, under a polygamous
system, though she ostensibly marries, form a household, or become
the co-ordinate head of a family, at all. The husband alone is
head of the family and has authority over the children. The wife,
indeed, who for the time is the favourite, may practically share
the authority, but even she has no equal and assured position. The
'consortium omnis vitae,' the 'individua vitae consuetudo,' which
according to the definition in the Digest is an essential element in
marriage, is not hers. [1] [2]
And further as the polygamous husband requires a self-restraint
from his wife which he does not put on himself, he is treating her
unequally. He demands a continence from her which, unless she is
kept in the confinement of slavery, can only rest on the attachment
of a person to a person and on a personal sense of duty, and at the
same time is practically ignoring the demand, which this personal
attachment on her part necessarily carries with it, that he should
keep himself for her as she keeps herself for him. The recognition of
children as having claims upon their parents reciprocal to those of
the parents over them, equally involves the condemnation of polygamy.
For these claims can only be duly satisfied, the responsibilities of
father and mother towards the children (potentially persons) whom
they have brought into the world can only be fulfilled, if father and
mother jointly take part in the education of the children; if the
children learn to love and obey father and mother as one authority.
But if there is no permanent 'consortium vitae' of one husband with
one wife, this joint authority over the children becomes impossible.
The child, when its physical dependence on the mother is over, ceases
to stand in any special relation to her. She has no recognised duties
to him, or he to her. These lie between him and his father only, and
just because the father's interests are divided between the children
of many wives, and because these render their filial offices to
the father separately, not to father and mother jointly, the true
domestic training is lost.
[1] 'Nuptiae sunt conjunctio maris et feminae, consortium omnis
vitae, divini et humani juris communicatio' _Digest_, xxiii. 2,
1. 'Matrimonium est viri et mulieris conjunctio individuam vita
consuetudinem continens.' Inst., i.9.2. (Quoted by Trendelenburg,
_Naturrecht_, p. 282.)
[2] [Latin consortium omnis vitae = partnership for life individua
vitae consuetudo = unbroken companionship of life Tr]
241. Monogamy, however, may be established, and an advance so far
made towards the establishment of a due reciprocity between husband
and wife, as well as towards a fulfilment of the responsibilities
incurred in bringing children into the world, while yet the true
claims of men in respect of women, and of women in respect of men,
and of children upon their parents, are far from being generally
realised. Wherever slavery exists alongside of monogamy, on the one
side people of the slave class are prevented from forming family
ties, and on the other those people who are privileged to marry,
though they are confined to one wife, are constantly tempted to be
false to the true monogamistic idea by the opportunity of using women
as chattels to minister to their pleasures. The wife is thus no more
than an institution, invested with certain dignities and privileges,
for the continuation of the family; a continuation, which under pagan
religions is considered necessary for the maintenance of certain
ceremonies, and to which among ourselves an importance is attached
wholly unconnected with the personal affection of the man for the
wife. [1] When slavery is abolished, and the title of all men and
women equally to form families is established by law, the conception
of the position of the wife necessarily rises. The ἑταίρα and παλλακή
[2] cease at any rate to be recognised accompaniments of married
life, and the claim of the wife upon the husband's fidelity, as
reciprocal to his claim upon hers, becomes established by law.
[1] Her position among the Greeks is well illustrated by a passage
from the speech of Demosthenes (?) against Neaera, Sect. 122 (quoted
by W. E. Hearn, _The Aryan Household_, p. 71). τὰς μὲν γὰρ ἑταίρας
ἡδονῆς ἕνεκʹ ἔχομεν, τὰς δὲ παλλακὰς τῆς καθʹ ἡμέραν θεραπείας του
σώματος, τὰς δὲ γυναῖκας τοῦ παιδοποιεῖσθαι γνησίως καὶ τῶν ἔνδον
φύλακα πιστὴν ἔχειν (tas men gar hetairas hedones henek echomen, tas
de pallakas tes kath' hemeran therapeias tou somatos, tas de gynaikas
tou paidopoieisthai gnesios kai ton endon phylaka pisten echein).
[The query as to Demosthenes' authorship is in Green's text. Hearn
translates this passage: Mistresses we keep for pleasure, concubines
for daily attendance on our persons, wives to bear us legitimate
children and to be our faithful housekeepers. Tr]
[2] [Greek ἑταίρα (hetaira) = courtesan, παλλακή (pallake) =
concubine. Tr]
242. Thus that marriage should only be lawful with one wife, that it
should be for life, that it should be terminable by the infidelity
of either husband or wife, are rules of right; not of morality, as
such, but of right. Without such rules the rights of the married
persons are not maintained. Those outward conditions of family life
would not be secured to them, which are necessary on the whole for
the development of a free morality. Polygamy is a violation of the
rights, (1) of those who through it are indirectly excluded from
regular marriage, and thus from the moral education which results
from this; (2) of the wife, who is morally lowered by exclusion
from her proper position in the household and by being used, more
or less, as the mere instrument of the husband's pleasure; (3)
of the children, who lose the chance of that full moral training
which depends on the connected action of father and mother. The
terminability of marriage at the pleasure of one of the parties to it
(of its terminability at the desire of both we will speak presently)
is a violation of the rights at any rate of the unconsenting party,
on the grounds _(a)_ that liability to it tends to prevent marriage
from becoming that 'individua vitae consuetudo' which gives it its
moral value, and _(b)_ that, when the marriage is dissolved, the
woman, just in proportion to her capacity for self-devotion and the
degree to which she has devoted herself to her original husband, is
debarred from forming that 'individua vitae consuetudo' again, and
thus crippled in her moral possibilities. It is a violation of the
rights of children for the same reason for which polygamy is so.
On the other hand, that the wife should be bound indissolubly by
the marriage-tie to an unfaithful husband (or _vice versa_), is a
violation of the right of wife (or husband, as the case may be),
because on the one hand the restraint which makes her liable to be
used physically as the instrument of the husband's pleasures, when
there is no longer reciprocal devotion between them, is a restraint
which (except in peculiar cases) renders moral elevation impossible;
and on the other, she is prevented from forming such a true marriage
as would be, according to ordinary rules, the condition of the
realisation of her moral capacities. Though the husband's right
to divorce from an unfaithful wife has been much more thoroughly
recognised than the wife's to divorce from an unfaithful husband, he
would be in fact less seriously wronged by the inability to obtain a
divorce, for it is only the second of the grounds just stated that
fully applies to him. The rights of the children do not seem so
plainly concerned in the dissolution of a marriage to which husband
or wife has been unfaithful. In some cases the best chance for them
might seem to lie in the infidelities being condoned and an outward
family peace re-established. But that their rights are violated by
the infidelity itself is plain. In the most definite way it detracts
from their possibilities of goodness. Without any consent on their
part, quite independently of any action of their own will, they are
placed by it in a position which tends--though special grace may
counteract it--to put the higher kinds of goodness beyond their reach.
243. These considerations suggest some further questions which may be
discussed under the following heads. (1) If infidelity in marriage is
a violation of rights in the manner stated, and if (as it must be) it
is a wilful and knowing violation, why is it not treated as a crime,
and, like other such violations of rights, punished by the state
in order to the better maintenance of rights? (2) Should any other
reason but the infidelity of husband or wife be allowed for the legal
dissolution of the marriage-tie? (3) How are the rights connected
with marriage related to the morality of marriage?
(1) There is good reason why the state should not take upon itself
to institute charges of adultery, but leave them to be instituted
by the individuals whose rights the adultery violates. The reasons
ordinarily alleged would be, _(a)_ the analogy of ordinary breaches
of contract, against which the state leaves it to the individual
injured to set the law in motion; _(b)_ the practical impossibility
of preventing adultery through the action of the functionaries of
the state. The analogy, however, from ordinary breaches of contract
does not really hold. In the first place, though marriage involves
contract, though without contract there can be no marriage, yet
marriage at once gives rise to rights and obligations of a kind
which cannot arise out of contract, in particular to obligations
towards the children born of the marriage. These children, at any
rate, are in no condition to seek redress--even if from the nature
of the case redress could be had--for the injuries inflicted on
them by a parent's adultery, as a person injured by a breach of
contract can seek redress for it. Again, though the state leaves
it to the individual injured by a breach of contract to institute
proceedings for redress, if the breach involves fraud, it, at any
rate in certain cases, treats the fraud as a crime and punishes. Now
in every breach of the marriage-contract by adultery there is that
which answers to fraud in the case of ordinary breach of contract.
The marriage-contract is broken knowingly and intentionally. If there
were no reason to the contrary, then, it would seem that the state,
though it might leave to the injured individuals the institution of
proceedings against adultery, should yet treat adultery as a crime
and seek to prevent it by punishment in the interest of those whose
virtual rights are violated by it, though not in the way of breach of
contract. But there are reasons to the contrary--reasons that arise
out of the moral purposes served by the marriage-tie--which make it
desirable both that it should be at the discretion of the directly
injured party whether a case of adultery should be judicially dealt
with at all, and that in no case should penal terror be associated
with such a violation of the marriage-bond Under ordinary conditions,
it is a public injury that a violation of his rights should be
condoned by the person suffering it. If the injured individual were
likely to fail in the institution of proceedings for his own redress
or defence, the public interest would require that the matter should
be taken out of his hands. But if an injured wife or husband is
willing to condone a breach of his or her rights through adultery,
it is generally best that it should be condoned. That married life
should be continued in spite of anything like dissoluteness on
the part of husband or wife, is no doubt undesirable. The moral
purposes which married life should serve cannot be served, either
for the married persons themselves or for the children, under such
conditions. On the other hand, the condonation of a single offence
would generally be better for all concerned than an application for
divorce. The line cannot be drawn at which, with a view to the higher
ends which marriage should serve, divorce becomes desirable. It is
therefore best that the state, while uniformly allowing the right of
divorce where the marriage-bond has been broken by adultery (since
otherwise the right of everyone to form a true marriage, a marriage
which shall be the basis of family life, is neutralised,) and taking
care that procedure for divorce be cheap and easy, should leave the
enforcement of the right to the discretion of individuals.
244. On similar grounds, it is undesirable that adultery as such
should be treated as a crime, that penal terror should be associated
with it. Though rights, in the strict sense, undoubtedly arise out
of marriage, though marriage has thus its strictly legal aspect, it
is undesirable that this legal aspect should become prominent. It
may suffer in respect of its higher moral purposes, if the element
of force appears too strongly in the maintenance of the rights to
which it gives rise. If a husband who would otherwise be false to
the marriage-bond is kept outwardly faithful to it by fear of the
punishment which might attend its breach, the right of the wife and
children is indeed so far protected, but is anything gained for those
moral ends, for the sake of which the maintenance of these rights
is alone of value? The man in whom disloyal passion is neutralised
by fear of punishment will contribute little in his family life to
the moral development of himself, his wife, or his children. If he
cannot be kept true by family affection and sympathy with the social
disapprobation attaching to matrimonial infidelity (and unless it is
a matter of social disapprobation no penalties will be effectually
enforced against it), he will not be kept true in a way that is of
any value to those concerned by fear of penalties. In other words,
the rights that arise out of marriage are not of a kind which can in
their essence be protected by associating penal terror with their
violation, as the rights of life and property can be. They are not
rights to claim mere forbearances or to claim the performance of
certain outward actions, by which a right is satisfied irrespectively
of the disposition with which the act is done. They are claims which
cannot be met without a certain disposition on the part of the person
upon whom the claim rests, and that disposition cannot be enforced.
The attempt to enforce the outward behaviour in order to satisfy the
claim, which is a claim not to the outward behaviour merely but to
this in connection with a certain disposition, defeats its own end.
245. For the protection, therefore, of the rights of married persons
and their children against infidelity, it does not appear that the
law can do more than secure facilities of divorce in the case of
adultery. This indeed is not in itself a protection against the wrong
involved in adultery, but rather a deliverance from the further
wrong to the injured husband or wife and to the children that would
be involved in the continuance of any legal claim over them on the
part of the injurer. But indirectly it helps to prevent the wrong
being done by bringing social disapprobation to bear on cases of
infidelity, and thus helping to keep married persons faithful through
sympathy with the disapprobation of which they feel that they would
be the objects when they imagine themselves unfaithful. The only
other effectual way in which the state can guard against the injuries
in question is by requiring great precaution and solemnity in the
contraction of marriages. This it can do by insisting on the consent
of parents to the marriage of all minors, exacting a long notice
(perhaps even a preliminary notice of betrothal), and, while not
preventing civil marriage, by encouraging the celebration of marriage
in the presence of religious congregations and with religious rites.
246. Question (2) is one that does not admit of being answered on
any absolute principle We must bear in mind that all rights--in
idea or as they should be--are relative to moral ends. The ground
for securing to individuals in respect of the marriage-tie certain
powers as rights, is that in a general way they are necessary to
the possibility of a morally good life, either directly to the
persons exercising them or to their children. The more completely
marriage is a 'consortium omnis vitae' in the sense of a unity in
all interests and for the whole of a lifetime, the more likely are
the external conditions of a moral life to be fulfilled in regard
both to married persons and their children. Therefore the general
rule of the state in dealing with marriage should be to secure such
powers as are favourable and withhold such as are not favourable to
the 'consortium omnis vitae.' But in the application of the principle
great difficulties arise. Lunacy may clearly render the 'consortium
omnis vitae' finally impossible; but what kind and degree of lunacy?
If the lunatic may possibly recover, though there is undoubtedly
reason for the separation from husband or wife during lunacy, should
permanent divorce be allowed? If it is allowed, and the lunatic
recovers, a wrong will have been done both to him and to the children
previously born of the marriage. On the other hand, to reserve the
connubial rights of a lunatic of whose recovery there is hope, and
to restore them when he recovers, may involve the wrong of bringing
further children into the world with the taint of lunacy upon them.
Is cruelty to be a ground of divorce, and if so, what amount? There
is a degree of persistent cruelty which renders 'consortium omnis
vitae' impossible, but unless it is certain that cruelty has reached
the point at which a restoration of any sort of family life becomes
impossible, a greater wrong both to wife and children may be involved
in allowing divorce than in refusing it. A husband impatient for the
time of the restraint of marriage may be tempted to passing cruelty
as a means of ridding himself of it, while if no such escape were
open to him he might get the better of the temporary disturbing
passion and settle down into a decent husband. The same consideration
applies still more strongly to allowing incompatibility of temper
as a ground of divorce. It would be hard to deny that it might be
of a degree and kind in which it so destroyed the possibility of
'consortium omnis vitae,' that, with a view to the interests of the
children, who ought in such a case to be chiefly considered, divorce
implied less wrong than the maintenance of the marriage-tie. But on
the other hand, to hold out the possibility of divorce on the ground
of incompatibility is just the way to generate that incompatibility.
On the whole, the only conclusion seems to be that this last ground
should not be allowed, and that in deciding on other grounds large
discretion should be allowed to a well-constituted court.