Marriage, in its obvious import, is a civic tie, enforced by the magistrate in the interest of public order. I, for example, A B, am a married man, entitled therefore to certain civic rights, such as the right to found a family, or call my children my own; and exposed, on the other hand, to certain civic pains, in case of my conjugal unworthiness, such as the breaking up of my family, or the separation of my wife and children from my care and authority, followed by the alienation of a portion of my worldly goods to their exclusive benefit.
Now let us suppose for a moment that my conjugal peace has been interrupted, but on the other side of the house. That is to say, suppose that my wife, no matter how instigated—whether by outward constraint or by inward guile—should be led to the overt disregard of her marriage vow, I have a clear remedy by the law of course, that is, I am entitled, not indeed to treat her with the least inhumanity or personal indignity, but to be relieved of the burden of her maintenance and association, and of all covenanted obligation to her in case of my ever being disposed to contract marriage anew.
What now will be my action in the premises? Can there be any reasonable doubt on the subject? Ah yes, a very grave doubt indeed. For marriage is not merely a civic, it is also a religious tie. It is, to be sure, very stringently enforced by the magistrate in the interest of the family, that is, established convention or decency. But it is very much more stringently enforced by the priest also, in the interest of our private manhood or character. Thus we find ourselves compelled to view marriage both as a secular tie instituted in the material interest of mankind, or with a view to protect each from all; and as a religious tie instituted in its spiritual interest, or with a view to protect all from each. As a married man, accordingly, I am subject to this concurrent jurisdiction, — of human authority on the one hand, represented by law; of divine authority on the other, represented by conscience. No practical conflict announces itself between these authorities, so long as my wife and I live together in reciprocal amity. But the moment my civic obligation to my wife ceases by her misconduct, the religious bond, which had been hitherto comparatively inert, or seemed indeed tacitly subservient to the civil contract, exerts a commanding sway; so that whereas yesterday perhaps, I was ready to condemn the law of marriage for uniting me with a vicious person, I am to-day disposed to justify it as holy, pure, and good. By what spiritual alchemy is this change wrought? The answer is not difficult and is well worth our study.
The difference between statutory law on the one hand, which has respect to man as a citizen, and what we call “moral law,” or conscience, on if other, which has respect to him as a man, is mainly a difference of scope; the scope of the former being to equip its subject in all conventional righteousness, of the latter to show him what a very sorry figure he cuts as so equipped. The intention of the law is to regulate the outward standing, or the esteem in which I am held by the community. The intention of conscience is to regulate my inward standing, or the esteem in which I am held by myself. Law is, for the most part, positive or mandatory. It prescribes certain duties which I am to do as the condition of my civic protection. Conscience is, for the most part, negative or prohibitory in its operation. It sets before me certain evils to be undone or repented of. Thus law aims to exalt its subject, or make him conventionally righteous; while conscience aims to humiliate him, or make him ashamed of any righteousness which implies his superiority to other men. The animus of law is to guarantee the rights of the individual against public encroachment. It protects me from overt injustice on the part of all other men. The animus of conscience, on the other hand, is to guarantee the public against all private encroachment. It protects the interest of all other men from the invasion of any secret lust or cupidity on my part, whereby the common weal might suffer damage. The law hedges me about with personal sanctity to my own imagination, and forbids the public wantonly to violate my self-respect; and it is only so far forth that I reverence the law. If it did otherwise, — if it in any way exposed me to the cupidity of my kind, — I should of course revolt from its allegiance. Conscience, on the other hand, desecrates me personally to my own imagination, by hedging all other men about with a superior personal sanctity, and binding me under pain of spiritual death to respect that sanctity. And it is only in this aspect that I venerate conscience. If its aim were manifestly to justify me as against other men, or exalt me above the neighbor, I should revolt from its allegiance. In a word, the end of the law is myself, is an individual righteousness; while that of conscience is my neighbor, or a universal righteousness; the aim of the former being at most to guarantee just relations between man and man, and of the latter to promote among men a spirit of mercy or mutual forgiveness.
This profound difference in the scope respectively of law and conscience (or law human and divine) perfectly accounts for the change operated in my breast between yesterday and to-day. A new relation has come about between my wife and myself, giving me a manifest legal advantage of her; and I no sooner perceive this advantage and dispose myself to pursue it, than the hitherto slumbering voice of conscience arouses itself, and bids me at all events pause before I determine on vindictive action. “Take time,” it says; “give the question consideration, at least. This poor wife of yours, whose conduct deserves, of course, the deepest legal reprobation, is yet by that fact entitled to every good man’s compassion. Look to it, therefore, that you deal not out to her judgment untempered by mercy, under penalty of forfeiting yourself a merciful regard when your own day of trouble comes.” The reader will see, then, that my action in the case supposed between me and my wife will probably be determined by the degree in which I shall have previously harmonized these conflicting interests of law and conscience, or justice and mercy, in my habitual conduct, that is to say, if I have habitually allowed both motives really to concur in my education, my action will be one way, and if I have habitually allowed the lower or obvious interest to rule the higher and hidden one, my action will be directly opposite. In point of fact, then, what will it be? Will I accept the rehabilitation to which the law invites me, at the expense of my guilty life; or will I persistently reject it? The reader perceives that I study to keep the question in the first person, or take counsel of my own heart exclusively; for my purpose is not to dogmatize in the least, or lay down any new law of action for men, but only to illustrate by my proper culture a law which is as old as God almighty, and which yet will be always as fresh as any newest-born babe. I repeat, then, how shall I, A B, specifically act in the premises? What practical obligation does my conscience impose upon me with reference to the legal wrong I have sustained? In short, what attitude of mind does a perception of the inward holiness or religious sanctity of marriage enjoin upon those who suffer from any of the offenses included in the violation of the outward bond, — a vindictive attitude or a forgiving one?
I cannot hesitate to reply at once, The latter attitude alone. All my culture—that is to say, every instinct of humanity in me—teaches me that whenever any conflict arises between law and conscience, or the interests respectively of my selfish and my social life, harmony is to be had only by subordinating the former interest to the latter. Thus, in the case supposed, I am bound by my culture or the allegiance I owe primarily to humanity, and only secondarily to myself, to absolve my erring wife in the forum of conscience of the guilt she has contracted in the forum of law. Of course I cannot disguise from myself the odiousness of her conduct. That is palpable and will not be dissembled. Our conjugal unity has been grossly outraged by her act, and nothing that I can do will avail to make the outrage unfelt. No, my sole debate with myself is, whether I shall make my private grief a matter of public concern, and so condemn my wife to open and notorious shame. And this is what, debate being had, I cannot conscientiously afford to do. For the voice of conscience, I repeat whenever confronted by that of law, claims a supreme authority; and its fundamental axiom is, that, in all cases of conflict between myself and another, I give that other a preference in my regard, or at all events treat with him on equal terms, so that any pretension on my part to construe my legal right of property in another as an absolute right, or a right underived at every or any moment from that other’s free consent or living concurrence, is an outrage to conscience, and entails its just reprobation. Thus, to keep to the case supposed, when the civil magistrate says to me. “Your wife has violated the conjugal bond, and so exposed herself to condign punishment at my hands,” I shut my ears to his invitation. I dare not listen to its solicitations. The awful voice of God within forbids me to do so, compels me rather to say to him, Get thee behind me, Satan! In other words, my conscience tells me, in letters of living light, that I am here by its supreme appointment expressly to interpose between my faithless wife and the yawning death of infamy which is ready to ingulf her. The Marriage covenant comprehends us both alike in its indissoluble bond and cannot be legally set aside but by our joint action. If then I, on my side refuse any vindictive response to provocation I have received, the law has no right to complain. And a human soul, perhaps, — who knows? — has been rescued from spiritual blight for I should be extremely sorry to compliment my own magnanimity at the expense of the divine.
But if in its legal aspect marriage is indissoluble save by the joint action or concurrence of the parties to it, in its religious or spiritual aspect it cannot even be violated without such concurrence. I am very sure, for example, that my wife’s affection would hardly have wandered from me, if I had been worthy of her affection. She thought me full of worth when she married and how little pains have I ever taken perhaps to foster that conviction! Love is not voluntary, but spontaneous. That is to say, I cannot compel myself to love; I cannot even compel myself not to love; for I cannot help loving whatsoever is worthy to be loved. Of course the worth of the object, in every case, will be determined to my own eyes, by my own previous character; but that does not affect the truth, that love will unerringly obey its proper object. Who can say, then, that my behavior in this crisis may not reveal me to the heart of my wife in a new character, and fill her with remorse and anguish that she has so grossly wronged me? But however this may be, it remains wholly indisputable to my own mind that, while my wife is alone guilty before the law for the dishonor done to the letter of marriage, we have been both alike guilty of bringing a much deeper discredit upon it in spirit, inasmuch as we have been content all along to allow the ritual covenant practically to exhaust and supersede, to our imagination, the real or living one. This is the only vital profanation of which marriage is susceptible, that a man and woman should consent to stand in a purely obligatory relation to each other, where human authority alone sanctions their intercourse, and not the supreme homage of affection they owe to infinite goodness and truth; and seeing this to be true, I cannot deal with my wife but in the way I propose. She and I are both very infirm persons, not only by nature and education, but still more by the fact of our position in the midst of a hostile civilization, envenomed by all manner of selfishness and rapacity; and we have neither of us the least equitable right, therefore, to each other’s absolute allegiance, but only to each other’s unqualified concession and mercy, any law or custom or convention whatsoever to the contrary notwithstanding. I see, in fact, that whatever legal defilement towards me my wife may have contracted, I should inevitably contract, myself, a far deeper because spiritual defilement towards God, by holding her to my permanent outward allegiance, when her heart refuses to ratify my claim. Thus as between me and my misguided wife, I dare not cast the first stone at her; for while I perceive well enough that she stands truly condemned by my natural mind, or human law, I at the same time perceive that I myself must outrage my higher or cultivated human instincts, and so incur a far more poignant rebuke of conscience, by consenting to press that condemnation home.
The sum of the matter, then, in my estimation, is, that marriage is not only holy, but holy in a far deeper sense than men commonly imagine. By most persons the sanctity of marriage is thought to be a merely instituted thing, depending upon some arbitrary divine decree. Others, more rational, deem it to inhere in the uses which marriage subserves to the family tie. And this is true, but it is only a part of the truth. For the family tie itself is not a finality. It is only the rude acorn out of which that great tree is predestined to spring, which we call society, and which will one day melt all the warring families of the earth into the impartial unity of its embrace. Thus the true sanctity of marriage inheres at bottom in its social uses. It is the sole nursery of the social sentiment in the human bosom. This indissoluble marriage of man and woman, which constitutes the family bond, steadfastly symbolizes to the imagination of the race, long before the intellect is quickened to discern or even to guess at the spiritual truth itself, the essential unity of mankind, or that complete fusion of the public and private interest, of the cosmical and domestic element, in consciousness, which is eventually to constitute human society, and cover the earth with the dew and fragrance of heaven. I beg to be distinctly understood. I say that marriage, though it seems to be fast disowning the merely ritual or symbolic sanctity which has always attached to it as the guaranty of the family bond, is yet putting on a much deeper and more real because spiritual sanctity, that, namely, which belongs to it as the sole actual source and focus of the social sentiment. Let us pause here one moment.
What is the social unit? What the simplest expression to which society is reducible? What, in short, is the original germ-cell which lies at the base of all that we call society? Is it the individual man, or is it the family? Clearly the latter alone. The individual man is only the inorganic protoplasm, so to speak, which goes to subsequent cell-formation in the family, the tribe, the city, the nation. The family itself is the primary organized cell out of which society flourishes. For society, it must be remembered, is exclusively a generic or race phenomenon in humanity. It organizes all mankind in indissoluble unity, or gives the race the personality of a man. Hence it exacts as a foundation, not the individual man or woman, who of course are unprolific, but man and woman married, that is, united in the family bond, or with a view to prolification. And what chance of unity would exist in the family, if its offspring had not been legitimated by the previous marriage of the parents; that is, if the father and mother were not equally entitled by law to the love and reverence of the children? Not unity, but the most frightful of all discords, namely, domestic discord, would then be the rule of our tenderest human intimacy; in fact, brother would so dominate sister, that the weaker sex would sink into the squalid and helpless servant of the stronger, until at last every vestige and tradition of that divine charm of privacy which now sanctifies woman to man’s imagination, and quickens all his spiritual culture, had hopelessly disappeared. This is what woman always represents to the imagination of man, a diviner self than his own; a more private, a more sacred and intimate self than that wherewith nature endows him. And this is the source of that passionate self-surrender he makes in marrying; of that passionate divorce he organizes between himself and his baser nature, when he would call the woman he loves by the sacred name of wife, or make her invincibly his own. Thus if marriage constitute the normal type of the sexual relations in humanity, we may say that the sentiment of sex in man is a strictly social and not a merely sensual or selfish sentiment, and marriage consequently becomes the very cradle of society. The distinctively generic or race element in humanity, unlike that of animality, is moral, not physical; is freedom, not servitude; is rationality, not caprice. And society consequently, regarded as exhibiting the human conscience in universal form, or expressing the race interest in humanity, has to do with man only as a moral or rational being, that is to say, as he is under law to his father and mother, brother and sister; friend and neighbor. Now the family alone, in the absence of society, provides man with this related, or moral and rational, existence; so that marriage, as alone guaranteeing the family integrity, may be said to guarantee implicitly the integrity of the human race as well.
I am by no means satisfied that I have done any too ample justice to my subject; but I think I have at least made it clear to the reader that the sanctity of marriage inheres eminently in its social, and by no means in its selfish, uses; in other words, that its purpose is to educate us out of our animal beginnings into a definitely humane consciousness at last. And if this be so, I am sure we have small cause for exultation, when we look around us and contemplate the awful horrors which beset the institution in its present almost exclusively selfish administration. Taking the newspapers for our guide, we should say that marriage as a legal bond had sunk so low in men’s esteem as to have become the appanage of the baser classes exclusively; that no one any longer really identifies himself with the outer covenant but some sordid ruffian, steeped in debauchery, whose lust of blood finds an easy victim in his unprotected wife, or some fancied paramour of his wife. The only original inequality known to the human race is that of the sexes, and marriage in annulling this forever sanctifies weakness to the regard of the strong, or makes true manhood to consist no longer in force, but in gentleness. But who, according to our newspapers, are the men that are now most forward to vindicate in their precious persons the honor of marriage? Are they not for the most part men, notoriously, of profligate antecedents, who are much more disposed to live UPON society, as things go, than to live for it? And what a stunning farce it is that heaven and earth should be convulsed, every other day, to render to such caitiffs as these what they are pleased to consider justice! What good man, what man who ever felt a breath of true reverence for marriage in his soul, does not abhor to think of its hallowed name being prostituted to such vile issues as these?
It revolts all one’s instincts of God’s goodness to suppose that any essential discrepancy can exist between the interests of man and man: as that I, for example, can ever be really harmed by any other person’s entire freedom to do as he pleases, or really profited by his partial restraint. For every man who thinks knows that absolutely no conflict of interests exists among men, which does not grow out of some merely instituted or conventional inequality to which they are subject, and which would not instantly disappear by voiding such inequality, or releasing the parties from each other’s thraldom. And we may as well, therefore, make up our minds to it at once—for we shall be obliged to do so sooner or later—that any law which makes itself the partisan of men’s divided, and not exclusively of their associated, interests may call itself divine if it pleases, but it has no claim whatever to the conscientious reverence of mankind. It may put on what solemn airs, and array itself in what tinsel majesty it will, no one is the least deceived by it, or will ever entertain anything but an interested regard for it. Men will make use of it of course to promote their selfish or merely prudential ends; but every upright man will scorn to endue himself in its righteousness. Nothing, I am persuaded, but the active influence and operation of such a law, professing to adjudicate between man and man, and not, as it ought to do, exclusively between every individual man on the one hand, and our infirm traditional civilization on the other, accounts for the beastly lasciviousness, the loathsome adulteries, and bloody revenges which disfigure our existing manners. For no man is wiser than the community of men of which he is an atom; and if the community tolerate a law which distinguishes between the interests of husband and wife, or makes either primarily responsible, to the other, and not both alike exclusively responsible to society, then we may depend upon it, every man of simply defective culture, much more every man in whose breast the social sentiment has been precluded by a vicious life, will be sure to take this inhuman communism for his own rule of action and see in the law, whenever his bad occasion arises, not the enemy, but the accomplice of his implacable lusts.
Does any of my readers doubt these things? Is there any intelligent reader of this magazine who can persuade himself that the interests of society, in any just sense of that much-abused word, were involved, for example, in any conceivable issue to the most recent conspicuous divorce suit in New York? It is of absolutely no moment, in fact, to our social well-being, but, on the contrary, a very great prejudice to it, that any particular person should be convicted at any time, or acquitted at any time, upon a charge of lying, theft, adultery, or murder; and our judiciary, regarded as the voucher of society, or of a plenary divine righteousness in the earth, acts, as it seems to me, with sheer impertinence in wasting its strength in these frivolous perquisitions. For what you want, supremely, to do with every man, is to qualify him at last for human society; and how can you do this, save in so far as you gradually exempt him from all allegiance to outward law, or a law with exclusively outward sanctions, — those of hope and fear, — and accustom him instead to the law of his own nature, which acknowledges only the inward sanctions positive and negative, of his own unforced self-respect and unaffected self-contempt? Pray tell me then, my reader, what business it is of yours or mine, that any man’s wife in the community, or any woman’s husband, has either veritably or conjecturally committed adultery, and should be legally convicted or legally absolved of that unrighteousness. What social right has any man or woman to thrust the evidence off a transaction so essentially private, personal, and irremediable upon the light of day? “To assist them,” it may be said, “in obtaining justice.” Yes, indeed, the demands of justice are absolute; but when did it ever become just that one person should be rendered simply infamous to promote the welfare of another? On the contrary, it would seem almost invariably that what the applicant in these cases craves is, not justice, but revenge pure and simple. In fact, I can see no reason, in my own observation, to doubt that Christ’s judgment, recorded in the eighth chapter of John’s Gospel, is conclusive on all this class of cases; and this judgment implies that they who thus invoke the public resentment of their private griefs are seldom so sincerely averse to the offense itself as they are to being themselves passively and not actively related to it. For when we really hate evil itself, and not merely the personal inconveniences it entails, nothing is so instinctive to us as compassion for its victims. I cannot imagine, for example, that any man or woman whose own bosom is the abode of chaste love, could ever be tempted by any selfish reward to fasten a stigma of unchastity upon anybody else. The existence of a sentiment so pure in one’s own bosom is inconsistent with a defamatory or condemnatory spirit towards another person; must infallibly dispose one to put the mildest interpretation upon any apparent criminality in another, to mitigate rather than heighten every evidence of misconduct which to a baser mind would afford a presumption of guilt.
But let my reader settle this point as he may, I insist upon it that the law, regarded as the earthly palladium of divine justice, is fast forfeiting its ancient renown, by too assiduously ministering to these cupidities of a frivolous and malignant self-love. Society, I repeat, has no manner of interest in seeing any of her children justified or made righteous at the cost of any other’s permanent defilement. What alone society demands—and this it imperatively demands—is, that lying, theft, adultery and murder be effectually done away with, cease any longer to characterize human intercourse. A true society, or LIVING fellowship among men, is incompatible with these hostile and clandestine relations. And exactly what the law, regarded as the carnal symbol of such society or fellowship, logically covenants to do, is no longer to content itself with exalting one man by the abasement of another, but to scourge without mercy every instituted decency upon earth, which, usurping the hallowed name of society, and reaping all its revenues from such usurpation, not only permits, but actually thrives by, the grossest inhumanity of man to man.
I beg my reader will not misunderstand me. What I say is, in effect this. The duty of the judge who tried the recent case in New York was doubtless to enforce the letter of the law, so far as it had been violated by either party to the prejudice of the other. But this was a subordinate duty. An infinitely more binding duty lay upon him to vindicate the spirit of the law, which was all the while so foully outraged and betrayed by the very trial itself, whatever might be its literal issues. The spirit of a law which on its literal side restrains men from evil-doing is obviously a spirit of the divinest justice among men, or, what is the same thing, of the heartiest mutual love and forbearance. And how openly crucified, mocked, and put to shame was this divine spirit, when the letter of its righteousness was perverted to the ends of the basest selfishness, or even made to echo the foulest spiritual hate and malignity! The husband in this case, like every man similarly tempted, came before the august tribunal of the law with a bosom of the deadliest animosity towards the person of his wife. He appealed to the traditional sanctity which the law enjoys in men’s regard, not with any view to honor its peaceful and loving spirit, but only to avail himself of the power which its pitiless letter gave him to crush his offending and helpless wife out of men’s kindly sympathy and remembrance; thus displaying a spiritual turpitude beside which any probable amount of literal evil-doing seems to me almost white and clean; for at the worst these things never have the effrontery to demand a legal justification. And yet the judge who tried the cause, who sat there only to avouch the honor of the law, had not a word to say in behalf of its prostituted majesty, not a word in rebuke of the flagrant hypocrisy which appealed to its majesty for no other purpose than to glut a base personal lust of vengeance!
Of course no one can harbor any personal ill-will towards the complainant in the case. On the contrary, he is entitled to every man’s unfeigned commiseration. He is himself the victim of a vicious system of an unenlightened public conscience, and has done nothing more than illustrate its habitual venom; nothing more than almost every one else would do under like provocation, who believes as he does in our existing civilization as a finality of God’s providence upon the earth, and cultivates the rapacious, libidinous, and vindictive temper it breeds in all its froward children. No, I refer to his case only because it furnishes a fair exemplification of the unsuspected moral dry-rot among us which conceals itself under the sanctions of religion and police, and yet degrades our law-courts on occasion into foci of obscene effluence unmatched by any brothels in the land. And I have obviously no interest either in these examples themselves, save as they enforce my general argument, which is that no possible discredit could ever befall the administration of justice among us, if only our magistrates would comprehend the spirit of their great office, which is eminently a social and not a selfish spirit; that is to say, which is never a spirit of petty condemnation towards this, that, or the other man, but of the freest, frankest justification of all mankind. I have not the least intention, of course, to hint that the law has not always been stanch at bottom to the interests of human society, as society has been hitherto constituted. All I want to say is, that society is getting to mean, now, something very different from what it has ever before meant. It has all along meant an instituted or conventional order among men, and this order was to be maintained at whatever cost to the individual man; if need be, at the cost of his utmost physical and moral degradation. People no longer put this extravagant estimate upon our civic organization. Our existing civilization seems now very dear at that costly price. Society, in short, is beginning to claim interests essentially repugnant to those of any established order. It utterly refuses to be identified with any mere institutions, however conventionally sacred, and claims to be a plenary divine righteousness in our very nature. The critical moment of destiny seems to be approaching, the day of justice and judgment for which the world has been so long agonizing in prayer, a day big with wrath against every interest of man which is organized upon the principle of his inequality with his brother, and full of peace to every interest established upon their essential fellowship. Every day an increasing number of persons reject our cruel civilization as a finality of God’s providence upon earth. Every day burns the conviction deeper in men’s bosoms, that there is no life of man on earth so poor and abject, whose purification and sanctification are not an infinitely nearer and dearer object to the heart of God than the welfare of any Paris, any London, any New York extant. And this rising preponderance of the human sentiment in consciousness over the personal one is precisely what accounts for the growing disrespect into which our legal administration is falling, and precisely what it must try to mould itself upon, if it would recover again the lost ground to which its fidelity to the old ideas is constantly subjecting it.