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From Vol. 3, Issue 9, September 2021

The story of Marcus Aurelius [6]


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“Men and women do not get married because marriage is legal, nor do they continue living together because divorce is difficult.”

Laws should be in accordance with Nature

Men who make laws have forever to watch most closely and dance attendance on Nature. Laws which fly in the face of Nature are gently waived or conveniently forgotten.

Should Chief Justice Fuller issue an injunction restraining all men from coming within a quarter of a mile of a woman, on penalty of death, we would all place ourselves in contempt in an hour; and should the army try to enforce the order, we would smother Justice Fuller in his woolsack and hang his effigy on a sour-apple tree.

Laws should embody the will of the people

Law isn't worth the paper it is written on unless it embodies the will and natural tendencies of the governed. Where poaching is popular, no law can stop it. Marriage is easy, and divorce difficult, because this is Nature's plan. The natural law of attraction brings men and women together, and it is difficult to separate them. Natural things are easy, and artificial ones difficult. Most couples who desire freedom only think they do: what they really want is a vacation; but they would not separate for good if they could. It is hard to part – people who have lived together grow to need each other. They want someone to quarrel with.

Cæsar Augustus, in his close study of character, introduced a limited divorce. That is, in case of a family quarrel, he ordered the couple to live apart for six months as a penalty. Quintilian says that usually before the expired time the man and woman were surreptitiously living together again, at which the court quietly winked, and finally this form of penalty had to be abandoned because it made the courts ridiculous.

Men and women do not get married because marriage is legal, nor do they continue living together because divorce is difficult. They marry because they desire to, and they do not separate because they do not want to. The task that confronts the legislator is to find out what the people want to do, and then legalize.

Marriage and divorce customs

In Rome, the custom of the parties divorcing themselves was prevalent, and the courts were called upon to ratify the act, just to give the matter respectability. Below a certain stratum in society, the formality of legal marriage and divorce was waived entirely, just as it is largely, now, among our colored population in the South. During the French Revolution, the same custom largely obtained in France.

And about the year One Hundred Fifty in Rome there was danger that the people would overlook the majesty of the law entirely in their domestic affairs. This condition is what prompted Marcus Aurelius to recognize as legal the commonlaw marriage and say if a couple called themselves husband and wife, they were. And for a time, if they said they were divorced, they were.

Making marriage easy, divorce difficult

But as a mortgage owned by a man on his own property cancels the debt, and legally there is no mortgage, so if the people could get married at will and divorce themselves at their convenience, there really was no legal marriage. Thus the matter was argued. So Marcus adopted the plan of making marriage easy and divorce difficult, and this has been the policy in all civilized countries ever since.

It is very evident, however, that Marcus Aurelius looked forward to a time when men and women would be wise enough, and just enough, to arrange their own affairs, without calling on the police to ratify either their friendships or their misunderstandings.

He says:

Love is beautiful, and that a man and a woman loving each other should live together is the will of God, but if there comes a time when they can not live in peace, let them part. To have no relationship is not a disgrace; to have wrong relations is, for disgrace means lack of grace, discord, and love is harmony.

Probationary marriages and probationary divorces

Marcus Aurelius tried the plan of probationary marriages; and to offset this he also introduced the Augustinian plan of probationary divorces – that is, the interlocutory decree. This scheme has recently been adopted in several States in America with the avowed intent of preventing fraud in divorce procedure, but actually the logic of the situation is the same now as in the time of Marcus Aurelius – it postpones the final decree so as to prevent the couple from becoming the victims of their own rashness, and to give them an opportunity to become reconciled if possible.

So anxious was Marcus Aurelius to decide justly with his people that he found himself swamped with cases of every sort and description. He tried to pass upon each case by its merits, regardless of law and precedent. Then other judges construed his decisions as law, and the lesser courts cited the upper ones, until Gibbon says, "There grew up such a mass of judge-made laws that a skilful lawyer could prove anything, and legal practise swung on the ability to cite similar cases and call attention to desired decisions."

American justice system

In America we are now back exactly to the same condition. A lawyer in New York State requires over fourteen thousand law-books if he would cover all the ground; and his business is to make it easy for the judge to dispense justice and not dispense with law. That is to say, before a judge can decide a case, he must be able to back up his opinion by precedent.

Judges are not elected to deal out justice between man and man; they are elected to decide on points of law. Law is often a great disadvantage to a judge – it may hamper justice – and in America there must surely soon come a day when we will make a bonfire of every law-book in the land, and electing our judges for life, we will make the judiciary free. We will then require our lawyers and judges to read, and pass examinations on Browning's "Ring and the Book," and none other.

The Aurelian suggestion

And if we would follow the Aurelian suggestion of remitting all direct taxes to every citizen who had not been plaintiff in a lawsuit for ten years, we would gradually get something approaching pure justice.

The people must be educated to decide quietly and calmly their own disputes, and this can be done only by placing an obvious penalty on litigation. Progress in the future will consist in having less law, and fulfilment will be reached when we have no law at all – each man governing himself, and being willing that his neighbor shall do the same. Trouble arises largely from each man regarding himself as his brother's keeper, and ceasing to be his friend.

Marcus, the wise judge

Marcus Aurelius, the wise judge, saw that most litigation is foolish and absurd – both parties are at fault, and both right. And to bring about the good time when men shall live in peace, he began earnestly to govern himself. His ideal was a state where men would need no governing. Hence his Meditations, a book which Dean Farrar says is not inferior to the New Testament in its lofty aim and purity of conception.

IN THE NEXT ISSUE.. In the next issue of THE STOIC, Elbert Hubbard describes how the Stoic classic, MEDITATIONS, came to be written.

Elbert Hubbard was a renaissance man who was prominent around the early 20th Century. The Story of Marcus Aurelius is from his Little Journeys to The Homes of The Great, Vol. 8. To make it easier to read we have broken down long paragraphs into short ones and added subtitles. The text is unaltered.