If the presence of those we fear or reverence, respect or love, restrain us from sin and stimulate us to right action, faith in the existence and presence of God and angels, and the spirits of the departed, must have a more powerful and pervading influence. No one who really believes in the existence of a Supreme Being, no one who is strongly impressed with the reality of a spiritual life, can go on doing what he knows to be wrong. A religious faith is therefore the most powerful of all restraints from evil and incitement to good.
CHAPTER VII.
MARRIAGE.
WHAT IS MARRIAGE?
Marriage is in law the conjugal union of man with woman, and is the only state in which cohabitation is considered proper and irreprehensible. The marriage relation exists in all Christian communities, and is considered the most solemn of contracts, and, excepting in Protestant countries, it is regarded as a sacrament. In some countries its celebration falls under the cognizance of ecclesiastical courts only, but in the United States it is regarded as merely a civil contract, magistrates having, equally with clergymen, the right to solemnize it, though it is usually the practice to have it performed by a clergyman and attended with religious ceremonies. Marriage, as a legalized custom, is of very ancient origin. It is doubtful whether even the primitive man was not governed in the intercourse of the sexes by some recognition of the union being confined to one chosen one. No greater promiscuity can certainly be supposed than occurs in the lower animals, where pairing is the law. The nobler animals, as the lion, elephant, etc., never have but one mate, and even in case of death do not remate. As men advanced, civil codes were inaugurated and certain protection given to the choice of the parties. The earliest civil code regulating marriage, of which we have any account, was that of Menes, who, Herodotus tells us, was the first of the Pharaohs, or native Egyptian kings, and who lived about 3,500 years before Christ. The nature of his code is not known.
The Biblical account extends further back, but it does not appear that any laws existed regulating marriage, but each one was allowed to choose his wife and concubines, and it is supposed that common consent respected the selection. Next, Moses gave laws for the government of marriage among the Israelites. The early Greeks followed the code of Cecrops, and the Romans were also governed in their marital relations by stringent laws. In fact, the necessity of some law regulating the intercourse between the sexes must have become very apparent to all nations or communities at a very early period. It certainly antedates any legal regulations with regard to the possession of property. It is very probable that every community did by common consent afford to each male one or more females, and the presumption is that such choice or assignment, as the case may have been, was respected by common agreement as inviolable. It is doubtful if ever promiscuity was the law or privilege with any community of men, even in their primitive state. The possession of reason is antagonistic to such a belief; and man was most probably elevated above the beast by the faculty of reason in this respect as in others. Promiscuous indulgence is always evidence of debauchery, and a departure from that natural course which is prompted by an innate sense of propriety characterizing mankind. The law is very indefinite with regard to what constitutes a legal marriage. It is an unsettled question, both in England and this country, whether a marriage solemnized by customary formalities alone is legal, or if one characterized by the mere consent of the parties is illegal. The latter has been held as legal in some instances in both countries. Kent, in his “Commentaries,” lays down the law that a contract made so that either party recognizes it from the moment of contract, and even not followed by cohabitation, amounts to a valid marriage, and also that a contract to be recognized at some future period, and followed by consummation, is equally valid. It is unfortunate that the law is so undecided in this respect. The decisions arrived at, for or against, were not dependent upon any recognized law, but seem to be influenced by the character of the cases, either for favor or discountenance. As long as the law recognizes cohabitation legal only in marriage, it seems to me that if consummated under consent of the parties to bear marital relations with each other, or promise of marriage, the act should be unhesitatingly pronounced as the equivalent of a valid marriage in all instances. If cohabitation is only a marital prerogative, the law should not stultify itself by recognizing it as possible to occur in any other relation. If either of the parties is married, the law defines it as adultery, and very properly defines the punishment. It is necessary to the progress of the age that some such principle should be recognized in common law so as not to subject the decision of the question to the individual opinion of any judge. It would at once obviate the confusion of sentiment now held in regard to it and besides arrest the decision in test cases from mere caprice of the tribunal. It is certainly as correct a principle as any in common law, and would, in its operations as a statute law, be free from injustice, and capable of doing much good.
POLYGAMY—WHAT IT IS.
Polygamy is a state in which a man has at the same time more than one wife. It has existed from time immemorial, especially among the nations of the East. The custom was tolerated by the laws of Moses, and, in fact, no positive injunction against it is found in the whole of the Old Testament. It is questionable whether more than one was recognized as the bona fide wife, the others simply being wives by right of concubinage. But if polygamy was in its strictest sense the legal custom, it soon grew unpopular, for no trace of it is met in the records of the New Testament, where all the passages referring to marriage imply monogamy as alone lawful. The custom has been almost universal in the East, being sanctioned by all the religions existing there. The religion of Mohammed allows four wives, but the permission is rarely exercised except by the rich.
In Christian countries polygamy was never tolerated, the tenets of the Church forbidding it, though Charlemagne had two wives, and Sigbert and Chilperich also had a plurality. John of Leyden, an Anabaptist leader, was the husband of seventeen wives, and he held that it was his moral right to marry as many as he chose.
In England the punishment of polygamy was originally in the hands of the ecclesiastics. It was considered a capital crime by Edward I., but it did not come entirely under the control of the temporal power until a statute of James I. made it a felony, punishable by death. George III. made it punishable by imprisonment or transportation for seven years.