第21章

From the principle thus stated, it also follows that concubinage is as little capable of being brought under a contract of right as the hiring of a person on any one occasion, in the way of a pactum fornicationis.For, as regards such a contract as this latter relation would imply, it must be admitted by all that any one who might enter into it could not be legally held to the fulfillment of their promise if they wished to resile from it.And as regards the former, a contract of concubinage would also fall as a pactum turpe; because as a contract of the hire (locatio, conductio), of a part for the use of another, on account of the inseparable unity of the members of a person, any one entering into such a contract would be actually surrendering as a res to the arbitrary will of another.Hence any party may annul a contract like this if entered into with any other, at any time and at pleasure; and that other would have no ground, in the circumstances, to complain of a lesion of his right.The same holds likewise of a morganatic or "left-hand" marriage, contracted in order to turn the inequality in the social status of the two parties to advantage in the way of establishing the social supremacy of the one over the other; for, in fact, such a relation is not really different from concubinage, according to the principles of natural right, and therefore does not constitute a real marriage.Hence the question may be raised as to whether it is not contrary to the equality of married persons when the law says in any way of the husband in relation to the wife, "he shall be thy master," so that he is represented as the one who commands, and she is the one who obeys.This, however, cannot be regarded as contrary to the natural equality of a human pair, if such legal supremacy is based only upon the natural superiority of the faculties of the husband compared with the wife, in the effectuation of the common interest of the household, and if the right to command is based merely upon this fact.

For this right may thus be deduced from the very duty of unity and equality in relation to the end involved.

27.Fulfillment of the Contract of Marriage.

The contract of marriage is completed only by conjugal cohabitation.

A contract of two persons of different sex, with the secret understanding either to abstain from conjugal cohabitation or with the consciousness on either side of incapacity for it, is a simulated contract; it does not constitute a marriage, and it may be dissolved by either of the parties at will.But if the incapacity only arises after marriage, the right of the contract is not annulled or diminished by a contingency that cannot be legally blamed.

The acquisition of a spouse, either as a husband or as a wife, is therefore not constituted facto- that is, by cohabitation- without a preceding contract; nor even pacto- by a mere contract of marriage, without subsequent cohabitation; but only lege, that is, as a juridical consequence of the obligation that is formed by two persons entering into a sexual union solely on the basis of a reciprocal possession of each other, which possession at the same time is only effected in reality by the reciprocal usus facultatum sexualium alterius.

Title II.Parental Right.(Parent and Child).

28.The Relation of Parent and Child.

From the duty of man towards himself- that is, towards the humanity in his own person there thus arises a personal right on the part of the members of the opposite sexes, as persons, to acquire one another really and reciprocally by marriage.In like manner, from the fact of procreation in the union thus constituted, there follows the duty of preserving and rearing children as the products of this union.Accordingly, children, as persons, have, at the same time, an original congenital right- distinguished from mere hereditary right- to be reared by the care of their parents till they are capable of maintaining themselves; and this provision becomes immediately theirs by law, without any particular juridical act being required to determine it.

For what is thus produced is a person, and it is impossible to think of a being endowed with personal freedom as produced merely by a physical process.And hence, in the practical relation, it is quite a correct and even a necessary idea to regard the act of generation as a process by which a person is brought without his consent into the world and placed in it by the responsible free will of others.This act, therefore, attaches an obligation to the parents to make their children- as far as their power goes- contented with the condition thus acquired.Hence parents cannot regard their child as, in a manner, a thing of their own making; for a being endowed with freedom cannot be so regarded.Nor, consequently, have they a right to destroy it as if it were their own property, or even to leave it to chance; because they have brought a being into the world who becomes in fact a citizen of the world, and they have placed that being in a state which they cannot be left to treat with indifference, even according to the natural conceptions of right.