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chapter 14: On the Rights of Husbands and Wives 1 - Gershom Carmichael, Natural Rights on the Threshold of the Scottish Enlightenment: The Writings of Gershom Carmichael 
Natural Rights on the Threshold of the Scottish Enlightenment: The Writings of Gershom Carmichael, ed. James Moore and Michael Silverthorne (Indianapolis: Liberty Fund, 2002).
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On the Rights of Husbands and Wives1
[The first or most elementary form of social life according to Pufendorf is married life, or the conjugal state. He described it as an adventitious state, since its beginnings depend upon a human act, an agreement or contract between two persons to live together. But the conjugal state is also a natural state, inasmuch as men and women are made by God to live together. And they have been endowed by God with a sexual instinct which makes them naturally inclined to propagate and have children. Thus marriage is the nursery or “seminary” of the human race. It follows that any indulgence of the sexual instinct outside marriage is contrary to natural law. Bestiality and homosexuality are also clearly opposed to the law of nature. Carmichael’s discussion proceeds from the last of these observations.]
It is obvious that none of these pollutions have anything whatsoever to do with the procreation of human offspring; they are contrary to the order of nature and are accordingly condemned by natural law. The law of sociability also requires men to temper the natural union of the sexes for the good of human society. For the interest of society is not so much the unlimited growth of human population as the proper mental and physical training of those who are born, so that they may come on to the stage of the world as educated men and women. It follows that the only honorable manner of procreation is one which permits a suitable education and formation for each of the children. To this end, a matrimonial contract may be required, such as the one described below. [II.2.2.i]
Those who would unite their bodies in an appropriate manner are required to enter into marriage. By this term we mean the agreement which we are about to describe, or rather the association which results from that agreement. There is indeed no general consensus on the articles of the matrimonial agreement according to the law of nature. And in no other part of natural law do natural duties fall further below Christian morality than in this matter of married life. But perhaps the difference will not seem so wide if we give due weight to the reflection that nature itself requires that the propagation of the human race be undertaken only on terms and conditions which are consistent with the rational and social nature of the parents, and which are likely to ensure that their offspring will be duly trained to observe the natural law. This is the object of the conditions of the matrimonial agreement, as we describe them in this and the following sections. [II.2.4.i]
Whether the contract is initiated by the man or the woman, both are to be regarded as seeking to have their own children. In any case the duty to preserve and raise the children falls on both parents, and that requires the united efforts of both parents, as shown below. [II.2.4.i]
The father must know that the offspring are truly his, if he is to perform his duties as a father with a father’s love. And therefore he must be sure that his wife is his and no other’s, at least for that period. For this reason, and particularly for the raising of the children they share, those who unite their bodies must form one family and live in the same household from the time of their first coming together, at least as long as there are children to be raised. And just as it is obviously inconsistent with the character of this society that the woman should go with other men, it is no less appropriate that the spouses should maintain their physical relations with each other, especially as the woman is able to give birth to several children before the first comes to an age when he can look after himself. Compare Locke, Second Treatise of Government, secs. 78–80.2
So far therefore we understand by the very law of nature that there should be in the matrimonial contract a mutual promise to live together in the same family, and to continue to do so at least as long as the care due to their offspring requires it, and to allow sexual intercourse with each other during that time; there must also be a promise on the part of the woman that she will not give enjoyment of her body to anyone other than her husband. Whether it is also part of a just marriage according to natural law that the man should promise not to have a relationship with any other woman will be discussed in the next section. [II.2.4.iii]
Since spouses coalesce into one family, and so constitute as it were one moral person, it is necessary that this moral person be subject to one direction. This can only happen between two people if the will of one is subject to the will of the other in running the family they share. In the absence of positive laws, this subjection can only be guaranteed by an agreement between the spouses. The natural law seems to have determined no part of this agreement except that authority over the family should be conferred (positive laws and customs apart) on the more prudent spouse. And since the custom of all ages and nations has assigned this prerogative to the man, it would not be appropriate even for those in natural liberty, and however ignorant they might be of the Divine Law (from which the universal custom seems to derive), to consent to a marriage agreement on some different condition. [II.2.4.iv]
Since, as shown above, a woman is restricted, by the character and end of the marital society so long as it lasts, to association with one man, natural equality requires that the man too should be content with the bed of one woman. This is particularly so since men and women are more or less equal in number, and therefore simultaneous polygamy, instead of monogamy, does not tend to increase the human race, as experience testifies. On the contrary, it contains a most iniquitous oppression, not only of wives, who are told to be content with just a little bit as it were of the marital partnership, but also of other men, very many of whom are compelled for this reason to do without wives. And it specially implies oppression of the children, since one father’s care is not adequate to provide a proper upbringing when there are so many of them. Consequently, such license is almost bound to occasion widespread indifference on the part of fathers, ingratitude on the part of children, and quarrels and adultery on the part of wives. [II.2.5.i]
It is beyond question that the necessity of raising children utterly forbids dissolution of the marital association for trivial everyday reasons. We therefore are to enter this association on the understanding that its duration does not depend upon any discretionary condition, except a condition which would frustrate the chief end of entering it; much less does it depend on the lack of some nonessential condition, so long as there are shared children to be raised.
But what if the bond which springs from the obligation to rear the common children should happen to fail or cease, either because there have been no children, or because the children have died or grown up, and no others have come along nor perhaps are expected? Many wonder whether at that point, where the positive law does not teach otherwise, a marriage may be ended.3
It would be too tedious to review separately the variety of cases which arise here, and to argue one by one the reasons which in each case favor the stability of marriage. In general we note that the close union, of hearts no less than of bodies, which is requisite for the purpose of this association, does not allow either that it be entered upon for a time, or that its duration depend on conditions which are beyond human nature to satisfy. The chief purpose, and the one which we should normally assume to be intended, we suppose to be the birth and rearing of children together. But what if sometimes the attainment of this end is not expected, because of the advanced age of one or both of the spouses? Legislators can determine to what extent such marriages, especially those of the former kind, ought to be tolerated in a state; this was the object (to quote an example from the past) of an article of the Lex Julia et Papia.4 But if they are tolerated at all, the dignity of human nature requires that they be vested with the same sanctity that should be brought to more regular unions, as we showed above. Finally, because of the nature of the marital association, it is not easy to preserve it at the will of one of the spouses, when the other is discontented and complaining. In man’s present depraved condition one should try to ensure that a marriage is not subject to constant disturbance, that it does not rest on too fragile a foundation. Consequently, it should be protected not only by the usual conditions on which people make agreements with each other, but also by being indissoluble even by the mutual consent of the spouses themselves, or if you prefer, by their dissent. Even if the positive law of God did not supply this sanction, the parties to the agreement should create it for themselves by formally declaring their matrimonial agreement before God in the form of a vow.
From the course of the argument so far, therefore, it is established that matrimony, which by the natural law itself is needed for the legitimate propagation of the human race, is a union of a man and a woman which entails an exclusive habit of life together. This is the definition given by the Emperor (Justinian, Institutes, I.9.1); it is rightly approved by the celebrated Huber in preference to the one which Grotius gives in accordance with his laxer assumptions on this topic.5 [II.2.6.i]
Our author is right to follow Grotius in deriving from natural law itself the prohibition of marriage between ascendants and descendants to infinity. The reason is that the love and physical expression of marriage utterly differ from and cannot coexist with the respectful modesty which is required between parents and children in whatever degree by the nature of this relationship and its resulting duties. This is how I understand the doctrine of Grotius (II.V.12), which our author explains rather than corrects at Of the Law of Nature and Nations, VI.I.32. [II.2.8.i]
On the one hand it matters to human society in general that individuals be restrained from promiscuous and illicit intercourse; on the other hand it matters to individual spouses, that each be strengthened by the help of others against the infidelity (should it happen) of their partner. Both ends require that a matrimonial vow be made in the presence of appropriate witnesses. Each citizen is bound to conform to whatever other legal solemnities the civil laws of different places require, particularly those which are necessary to ensure that a marriage is valid in its essential effects in the civil courts. Anyone who neglects these solemnities incurs the disgrace of illicit intercourse. However ceremonies which are not a matter of command, but pertain only to certain inessential effects, e.g., to the dignity of the spouse or the children, the patrimony and such things, can be performed or omitted at pleasure. Hence what is called secondary marriage, which is quite foreign to our customs, is not to be confused with concubinage.6 [II.2.9.i]
[1.] From the notes to bk. II, ch. 2, “On the Duties of Married Life.”
[2.] Locke considered it evidence of Divine Providence that the union of man and wife should be longer lasting than that of other creatures so that families would be more industrious and provide for the future of their offspring.
[3.] Locke, Second Treatise, ch. 7, p. 321.
[4.] The Lex Julia de maritandis ordinibus (18 b.c.) and the Lex Papia Poppaea (a.d. 9) are both parts of the emperor Augustus’s marriage legislation.
[5.] Huber, De Jure Civitatis, II.II.6; Grotius, Rights of War and Peace, II.V.8.
[6.] Pufendorf described secondary marriages at Of the Law of Nature and Nations, VI.I.36, as marriages, otherwise legal, between husbands and wives of unequal condition who are not able to claim the same rights for their children as other lawful mothers.