« ForrigeFortsett »
second marriage unlawful, without annexing any penalty for the offence.a •
The direct and serious prohibition of polygamy contained in our law, is founded on the precepts of Christianity, and the laws of our social nature, and it is supported by the sense and practice of the civilized nations of Europe.b Though the Athenians at one time, permitted polygamy, yet, generally, it was not tolerated in ancient Greece, but was regarded as the practice of barbarians.0 It was also forbidden by the Romans throughout the whole period of their history, and the prohibition is inserted in the Institutes of Justinian.d Polygamy may be regarded as exclusively the feature of Asiatic manners, and of half civilized life, and to be incompatible with civilization, refinement, and domestic felicity.0
(4.) In most countries of Europe in which the canon law has had authority or influence, marriages are prohibited between *near relations by blood or *82 marriage. Prohibitions similar to the canonical disabilities of the English ecclesiastical law, were contained in the Jewish laws, from which the canon law was, in this respect, deduced; and they existed also in the laws and usages of the Greeks and Romans, subject to con
- If a woman be induced, by fraudulent means, to marry a man who has a wife living, and who represented himself as single, the children born while the deception lasted, are entitled to the rights of legitimate children. Clendenning v. Clendenning, 15 Martin's Louis. Rep. 438. This is also the statuto law in New-York. New-York Revised Statute*, vol. ii. p. 1. 42. sec. 23.
b Foley's Moral Philosophy, b. 3. ch. G.
< Potter's Greek Antiq. 2G4. Taylor's Elem. Civil Law, 340—344.
s Cic. de Orat. 1. 40. Suet. Jul. 52. Inst. 1. 10. b. ad. fin. Taylor, Hid. 344—347. Polygamy was in practice among the Jews in the early patriarchial ages. Seldon's Uxor Ebraica, lib. 1. ch. 9. Antiquities of the Hebrew Republie, by Lewis, vol. iii. p. 248.
• Leiber, in his Political Ethies, vol. 2, p. 9, says that polygamy leads to the patriarchial principle, and which, when applied to large communities, fetters the people in stationary despotism, while that principle cannot exist long in connection with monogamy. The remark is equally striking and profound.
r siderable alternations of opinion, and with various modifications and extent.* These regulations, as far at least as they prohibit marriages among near relations, by blood or marriage, (for the canon and common law made no distinction on this point between connexions by consanguinity and affinity,b) are evidently founded in the law of nature; and incestuous marriages have generally (but with some strange exceptions at Athens0) been regarded with abhorrence by the soundest writers and the most polished states of antiquity. Under the influence of Christianity, a purer taste and stricter doctrine have never been inculcated ; and an incestuous connexion between an uncle and niece, (it being a marriage within the Levitical degrees,) has been adjudged, by a great master of public and municipal law, to be a nuisance extremely offensive to the laws and manners of society, and tending to endless confusion, and the pollution of the sanctity of private life.d
It is very difficult to ascertain exactly the point at which the laws of nature have ceased to discountenance the union. It is very clearly established, that marriages between relations by blood or affinity in the lineal, or ascending and descending lines, are unnatural and unlawful, and they lead to a confusion of rights and *S3 duties. On this point, the civil, the canon, *and
< Seldoris Uxor Ebraica, lib. i. ch. 1—5. 1 Potter's Greek Antiq. 170. 2 ibid. 267, 26(3, 269. Tacit. Ann. 12. sec. 4, 5, 6, 7. Lewis' Antiquities of the Jewish Republie, vol. iii. p. 252.
b Co. Litt. 235. a. Gibson's Cod. 412. 1 Philimore's Rep. 201. 355. Stair's Institutions by More, vol. i. note B. p. 15. Affinity is the relation contracted by marriage, between a husband and his wife's kindred, and between a wife and her husband's kindred.
« Mitford's History of Greece, vol. vii. p. 374.
a Burgess v. Burgess, 1 Hagg. Consist. Rep. 386. Woods v. Woods, 2 Curtces, 516, S. P. Such a connexion was held in equal abomination by Justinian's code. Code, 5. 8. 2. Consanguinity and affinity are equally impediments in the case of illegitimate relations, and within the purview of the prohibition. Homer v. Horner, 1 Hagg. Cms. Rep. 352,3. Blackmore v. Bride, 2 Phil. 361.
the common law, are in perfect harmony. In the learned opinion which Ch. J. Vaughan delivered on this subject, in Harrison v. Burwell* upon consultation with all the judges of England, he considered that such marriages were against the law of nature, and contrary to a moral prohibition binding upon all mankind. But when we go to collaterals, it is not easy to fix the forbidden degrees by clear and established principles.b
In several of the United States, marriages within the Levitical degrees, under some exceptions, are made void by statute; but in New-York, until 1830, there was not any statute defining the forbidden degrees, and in England, the prohibition to marry within the Levitical degrees rests on the canon law, which, in that respect, received the sanction of several statutes passed in the reign of Hen. VIII.c It was considered in the case of Wightman v. Wightman,* that marriages between brothers and sisters in the collateral line, were equally, with those between persons in the lineal line of consanguinity, unlaw
* Vaughan's Rep. 206. 2 Vent. 9. S. C.
b Doctor Taylor, in his Elements of the Civil Law, p. 314—339, has gone deeply into the Greek and Roman learning as to the extent of the prohibition of marriage between near relations ; and he says, the fourth degree of collateral consanguinity is the proper point to stop at; that the marriage of cousins-germ an or first cousins, and who are collaterals in the fourth degree according to the computation of the civilians, and in the second degree according to the canon law, is lawful, and the civil law properly established the fourth as the first degree that could match with decency. The territorial act of Michigan, of April, 1832, stops at the fourth degree, by prohibiting marriages nearer than first cousins.
« By the statute of 5 and 6 Wm. 4, c. 54, marriages between persons within the prohibited degrees of consanguinity or affinity, are declared to be absolutely nnll and void. Before that act, such marriages were voidable only by sentence of the ecclesiastical court pronounced in the life time of both the parties. The English statute has not declared what are the prohibited degrees, and we are to look for the Levitical degrees as interpreted by the canon law, and by the statutes of 25 Hen. 8. c. 22, and 32 Hen. 8. c. 38, and the table of degrees established by Archbishop Parker in 1563. See Shelford on Marriage and Divorce, ch. 3, sec. 1.
* 4 Johns. Ch. Rep. 343.
Vol. II. 8
ful and void, as being plainly repugnant to the first principles of society, and the moral sense of the civilized world. It would be difficult to carry the prohibition farther without legislative sanction; and it was observed, in the case last referred to, that in New-York, independent of any positive institution, the courts would not probably be authorized to interfere with marriages in the collateral line beyond the first degree computed according to the
canon law, especially as the Levitical degrees were *84 not considered *to be binding as a mere municipal
rule of obedience.11 The Napoleon code,b has adopted precisely the same extent of prohibition, as forming the impassable line between lawful and incestuous marriages; and though the prohibition goes deeper into the collateral line, yet the government reserved to itself the power to dispense. at its pleasure, with such further prohibitions. It is evident, that the compilers of that code considered the marriage between collaterals in the first degree of consanguinity, prohibited by a rule, which was of absolute, uniform, and universal obligation, because, as to the prohibition between brothers and sisters, the sovereign had no dispensing power. In England, the question was considered by the court of delegates in the case of Butler v. Gastrill,0 and though the court did not agree to admit marriages between brothers and sisters to be against the law of nature, as marriages
» By the New York Revised Statutes, vol. ii. p. 139, sec. 3 ; ibid. G88, sec. 12, and which went into operation in 1830, marriage between relatives in the ascending and descending lines, and between brothers and sisters of the half as well as of the whole blood, is now declared to be incestuous and void. Such incestuous marriages, and also adultery and fornication, committed by such relatives with each other, are made indictable offences and punishable by imprisonment in a state prison for a term not exceeding ten years. This is also the law in Massachusetts ; and the punishment by imprisonment extends to adultery and fornication committed by other persons than such relations. Mass. Revised Statutes, 1835, part 4, tit. 1, ch. 130
bNo. 161, 162.
« Gilbert's Eq. Rep. 156.
were so considered between parties connected in the lineal line; yet they admitted them to be against the law of God, and against good morals and policy. In Louisiana, marriages are prohibited among collateral relations, not only between brother and sister, but between uncle and the niece, and the aunt and the nephew.11 It is not consistent with my purpose to pursue this inquiry more minutely. The books abound with curious discussions on the limitations which ought to be prescribed; and in the English cases, in particular, to which I have referred, the courts *bestowed immense labour, *85 and displayed profound learning, in their investigations on the subject.b
• Civil Code, art 97. In Ohio, marriages are unlawful between nearer of kin than first cousins. Revised Statutes of Ohio, 1831.
t Whether it be proper or lawful, in a religious or moral sense, for a man to marry his deceased wife's sister, has been discussed by American writers. Mr. N. Webster, in his Essays, published at Boston, in 1790, No. 26, held the affirmative. Dr. Livingston, in his Dissertation, published in NewBrunswick, in 1816, and confined exclusively to that point, maintained the negative side of the question. The Rev. Dr. S. E. Dwight has also in his Hebrew wife., a treatise published in 1836, maintained with much biblical learning and great zeal, that the marriage of a deceased wife's sister was unlawful and incestuous under the Levitical law; and that the biblical law of incest was of general moral obligation, and binding on the whole gentile world. This is the adjudged law in England, and a marriage between a man and his deceased wife's sister is held to be incestuous and void. Hill v. Good, Vaugh. Rep. Harris v. Hicks, 2 Salk. 548. Ray v. Sherwood, 1 Cartets, 173, in the arches court, and affirmed on appeal in 1837, 1 Moore, Privy Counsel, c. 395. 396. Shelford on Marriage and Divorce, p. 172, 178. It is said that marriage with a sister of a deceased wife, is lawful in Prussia, Saxony, Hanover, Baden, Mecklenburgh, Hamburgh, Denmark, and most of the other Protestant States of Europe. In most Catholic countries such marriages are formally prohibited, but dispensations are easily obtained. Hayward's Remarks on the law regarding Marriage with the sister of a deeased wife. London, 1845. In that pamphlet it is shown upon very strong reason and authority, that the prohibitions in the Levitical law do not reach the case. It is not my object to meddle with that question; but such a marriage is clearly not incestuous or invalid by the municipal law of New-York ; though it be unlawful in England and in some of the American states. In 1842, a proposition was made and dis