Tuesday, March 20, 2012

"it is not in the power of the Parties, though of common consent"

"that Marriage it self and the Obligations thence arising, are Jure divino, appears thus; First, Obligations arising from voluntar [sic] Ingagment take their Rule and Substance from the will of Man, and may be framed and composed at his pleasure; but so cannot Marriage, wherein it is not in the power of the Parties, though of common consent, to alter any Substantial, as to make the Marriage for a time, or take the power over the Wife from the Husband, and place it in any other; or the right of Provision or protection of the Wife, from the Husband, and so of all the rest, which evidently demonstrateth, that it's not a Humane, but a Divine Contract."

     Sir James Dalrymple, First Viscount of Stair, The institutions of the law of Scotland, deduced from its originals, and collated with the civil, canon and feudal laws, and with the customs of neighboring nations, in iv. books, second edition, revised, corrected, and much enlarged, Lib. 1, Tit. IV (Conjugal obligations), Sec. 1 ((Edinburgh:  Heir of Andrew Anderson, 1693), 24).  I was put onto this by John Haldane, "Against erotic entitlements," First things no. 222 (April 2012), 20 (19-20).

No comments: