when the person remarrying was, at the time of such marriage, divorced by the sentence of a competent court, for some other cause than the adultery of such person; or if the former husband or wife of the party remarrying had been sentenced to imprisonment for life; or if the former marriage had been duly declared

void, or was made within the age of consent. (ƒ) This is 80 essentially a transcript of the statute of 1 James I., ch.

11, with a reduction of the time of absence, from seven to five years; and though the penal consequences of such a second marriage do not apply in those excepted cases, yet, if the former husband or wife be living, though the fact be unknown, and there be no divorce a vinculo duly pronounced, or the first marriage has not been duly annulled, the second marriage is absolutely void, and the party remarrying incurs the misfortune of an unlawful connection. If there be no statute regulation in the case, the principle of the common law, not only of England, but generally of the Christian world is, that no length of time or absence, and nothing but death, or the decree of a court confessedly competent to the case, can dissolve the marriage tie. (a)

By the statute of James I., if one of the married parties continually remained abroad for five years, and was living, even within the knowledge of the other party, or the parties were at the time only under a divorce a mensa et thoro, yet the second marriage, though void in law, would not be within the penalties of the Act. It was still a divorce, and the Act did not distinguish between the two species of divorce. (b) The crime of big

(f) N. Y. Revised Statutes, vol. ii. pp. 139, 687. Ibid. 688, sec. 11. The statute has further provided on this subject, that if one of the married parties absents himself or herself, for five successive years, without being known to the other party to be living during that time, and the other party marries during the life of the absent person, the marriage is void, only from the time that its nullity shall be pronounced by a court of competent authority. And further, that no pardon granted to any person sentenced to imprisonment for life shall restore to him or her the rights of a previous marriage. N. Y. Revised Statutes, vol. ii. p. 139, sec. 6, 7.

(a) 1 Roll. Abr. 340, pl. 2, 357, pl. 40, 360, F. Williamson v. Parisien, 1 Johns. Ch. 389. Fenton v. Reed, 4 Johns. 52.

(b) 4 Blacks. Com. 163, 164. This point was raised and discussed in Porter's case, Cro. Car. 461; and while the court admitted the second marriage to be unlawful and void, yet they did not decide whether the statute penalty would attach upon such a case of bigamy. The New York Revised Statutes, vol. ii. p. 687, sec. 9, have corrected this

1 Cropsey v. Ogden, 11 N. Y. (1 Kernan) 228.

amy, or of polygamy, as it ought more properly to be *81 termed, (a), has been made a capital offence in some, and punished very severely in other parts of Europe; (b) but the new civil code of France (c) only renders such second marriage unlawful, without annexing any penalty for the offence. (d)

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. (e) 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. (f) It was also forbidden by the Romans throughout the whole period of their history, and the prohibition is inserted in the Institutes of Justinian. (g) 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. (h)

(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 marriage. Prohibitions similar * 82 to the canonical disabilities of the English ecclesiastical law were contained in the Jewish laws, from which the canon law

imperfection in the English statute, and made the exception to the application of the penalties of bigamy, in the case of divorce, not to rest on a divorce a mensa et thoro, but to apply only to the dissolution of the former marriage.

(a) Harg. Co. Litt. lib. 2, n. 48.

(b) Barrington on the Statutes, p. 401.

(c) No. 147.

(d) 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. (Vol. iii. N. s.) This is also the statute law in New York. New York Revised Statutes, vol. ii. p. 142, sec. 23

(e) Paley's Moral Philosophy, b. 3, ch. 6.

(f) Potter's Greek Antiq. 264. Taylor's Elem. Civil Law, 340–344.

(g) Cic. de Orat. 1, 40. Suet. Jul. 52. Inst. 1, 10, b. ad fin. Taylor, Ibid. 344–347. Polygamy was in practice among the Jews in the early patriarchal ages. Selden's Uxor Ebraica, lib. 1, ch. 9. Antiquities of the Hebrew Republic, by Lewis, vol. iii. p. 248.

(h) Lieber, in his Political Ethics, vol. ii. p. 9, says that polygamy leads to the patriarchal 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.

was, in this respect, deduced; and they existed also in the laws and usages of the Greeks and Romans, subject to considerable alterations of opinion, and with various modifications and extent. (a) 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 connections by consanguinity and affinity,) (b) are evidently founded in the law of nature; and incestuous marriages have generally (but with some strange exceptions at Athens) (c) 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 ever been inculcated; and an incestuous connection 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 or descending lines,

are unnatural and unlawful, and they lead to a confusion of *83 rights and duties. On this point the civil, the canon, and

the common law are in perfect harmony. In the learned opinion which Ch. J. Vaughan delivered on this subject, in Harrison v. Burwell, (a) 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

(a) Selden's Uxor Ebraica, lib. 1, ch. 1-5. 1 Potter's Greek Antiq. 170. 2 Ibid. 267, 268, 269. Tacit. Ann. 12, sec. 4, 5, 6, 7. Lewis's Antiquities of the Jewish Republic, vol. iii. p. 252.

(b) Co. Litt. 235, a. Gibson's Cod. 412. 1 Phil. 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.

(c) Mitford's History of Greece, vol. vii. p. 374.

(d) Burgess v. Burgess, 1 Hagg. Cons. 386. Woods v. Woods, 2 Curteis, 516, S. P. Such a connection 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. Horner v. Horner, 1 Hagg. Cons. 352, 3. Blackmore v. Brider, 2 Phil. 361, Queen v. Brighton, 1 Ell. Bl. & Sm. 447. (a) Vaughan's Rep. 206. 2 Vent. 9 S. C.

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)1 It was considered in the case of Wightman v. Wightman, (d) that marriages between brothers and sisters in the collateral line were equally, with those between persons in the lineal line of consanguinity, unlawful 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 not

(b) Doctor Taylor, in his elements of the Civil Law, pp. 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-german 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 of 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.

(c) By the statute of 5 and 6 William IV. c. 54, marriages between persons within the prohibited degree of consanguinity or affinity are declared to be absolutely null and void. Before that Act, such marriages were voidable only by sentence of the ecclesiastical court, pronounced in the lifetime 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. VIII. c. 22, and 32 Hen. VIII. c. 38, and the table of degrees established by Archbishop Parker in 1563. See Shelford on Marriage and Divorce, ch. 3, sec. 1.

(d) 4 Johns. Ch. 343.

1 The subject of the Levitical degrees, as affecting the validity of marriages, has been much discussed in a late English case. Reg. v. Chadwick, 12 Eng. Jurist Rep. p. 174, 1848, 03 Eng. C. L. 205.

*84 considered

to be binding as a mere municipal rule of

obedience. (a)1 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; (c) and though the court did not agree to admit marriages between brothers and sisters to be against the law of nature, as marriages 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. (d) It is not consistent with my purpose to pursue this inquiry more minutely. The books abound

(a) By the New York Revised Statutes, vol. ii. p. 139, sec. 3; Ibid. 688, sec. 12, marriages between relatives in the ascending and descending lines, and between brothers and sisters of the half as well as of the whole blood, is declared to be incestuous and void.? Such incestuous marriages, and also adultery and fornication, committed by such relatives with each other, are indictable, and punishable by imprisonment 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 any one. Genl. Sts. ch. 156, § 6.

In Portugal, the marriage of an uncle and niece is permitted, and not unusual. Maria I. married her father's brother.

(b) Nos. 161, 162.

(c) Gilbert's Eq. 156.

(d) Civil Code, art. 97. In Ohio, marriages are unlawful between nearer of kin than first-cousins. Revised Statutes of Ohio, 1831. In North Carolina, marriages between persons nearer of kin than first-cousins are declared to be void. Laws of 1852, ch. 16.

1 Marriage of a man with his mother's sister is not void by the laws of nature. Sutton v. Warren, 10 Metcalf, 451. The marriage of a man with the daughter of his sister, has been held to be voidable only, under a statute of Illinois, authorizing marriages "unless prohibited by the laws of God." Bonham v. Badgley, 2 Gilm. 622.

The declaration extends to illegitimate relatives. 2 R. S. 139, sec. 2.