render the marriage contract binding. (a) Nature has not fixed any precise period; and municipal laws must operate by fixed

and reasonable rules. The same rule was adopted *79 *in France, before their revolution: (b) but by the Napoleon code, the age of consent was raised to eighteen in males, and fifteen in females, though a dispensation from the rule may be granted for good cause. If without the consent of their parents, or of the father, in case of a difference of opinion, the son must be twenty-five years complete, and the daughter twenty-one years complete, to render them competent to contract marriage. (c)

(3.) No person can marry while the former husband or wife is living. Such second marriage is, by the common law, absolutely null and void; (d) and it is probably an indictable offence in most, if not all of the states in the Union. (e) In New York,

(a) Inst. 1, 10, De Nuptiss. Co. Litt. 78 b. 1 Blacks. Com. 436.

(b) 1 Domat. Prel. b. 24, 25. The incapacity for marriage ceased when the parties had attained the respective ages of fourteen and twelve. But if the children were under paternal authority, the son could not marry unless he was thirty years of age, nor the daughter unless she was twenty-five, without the consent of their parents. Ibid.

(c) Code Civil, Nos. 144, 148. The New York Revised Statutes, vol. ii. p. 138, established the ages of consent at seventeen in males, and fourteen in females; but the provision was so disrelished, that it was repealed within four months thereafter, by the act of 20th April, 1830, which, of course, left the case to stand as before, upon the rule of the common law. In Ohio, Indiana, and Michigan, the age of consent is raised to eighteen years in males, and fourteen in females. Statutes of Ohio, 1831. Territorial act of Michigan, April, 1832. R. Statutes of Indiana, 1838. In Illinois, to seventeen in males, and fourteen in females. Illinois R. Laws, 1833. (d) Cro. Eliz. 858. 1 Salk. 121.

(e) In North Carolina, bigamy was a crime punishable with death. Statutes 1790 and 1800. In Alabama, it is punishable by fine, imprisonment, and whipping. Atkins's Dig. 2d ed. p. 107.

1 But in New York, the court has power by statute to annul marriages in certain cases, when the female was, at the time of the marriage, under the age of fourteen. Bennett v. Smith, 21 Barb. 439. In Wisconsin, males may marry at 18, females at 15. R. S. Wisconsin, tit. 21, ch. 78. In Virginia, males may marry at 14, females at 12. Rev. St. 1849, tit. 31, ch. 109, sec. 3. In Ohio, it has been decided that marriages between a male under the age of 18, and a female under the age of 14, are invalid, unless confirmed by cohabitation subsequently to the parties attaining the statutory age. Shafher v. State of Ohio, 20 Ohio R. 1. While in Iowa the decision of the court is directly contrary. Goodwin v. Thompson, 2 Greene, Iowa R. 329. The statutes in both states are substantially the same in language. The common-law rule which fixes the ages of consent at 14 and 12 years prevails in Massachusetts. Parton v. Hervey, 1 Gray, 119.

it is declared by statute to be an offence punishable by imprisonment in a state prison, in all but certain excepted cases. Those cases are, when the husband or wife, as the case may be, of the party who remarries, remains continually without the United States for five years together; or when one of the married parties shall have absented himself or herself from the other by the space of five successive years, and the one remarrying shall not know the other, who was thus absent, to be living within that time; (a) or 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. (b) This is essentially a transcript of the *statute of 1 James I., ch. 11, with a reduction of the *80 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. (c)

(a) In Ohio, it is three years of continual and wilful absence, next before the second marriage. Statutes of Ohio, 1831. In Massachusetts, it is seven years; and it is further added, that the legal penalty does not apply if one of the parties had been absent for a year or more at the time of the second marriage, and believed to be dead. Mass. Revised Statutes, 1836.

(b) 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. (c) 1 Roll. Abr. 340, pl. 2, 357, pl. 40, 360, F. Ch. Rep. 389. Fenton v. Reed, 4 Johns. Rep. 52.

Williamson v. Parisien, 1 Johns.

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. (a) The crime

of bigamy, or of polygamy, as it ought more properly 81 to be termed, (b) has been made a capital offence in

some, and punished very severely in other parts of Europe; (c) but the new civil code of France (d) only renders such second marriage unlawful, without annexing any penalty for the offence. (e)

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

be

(a) 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 imperfection in the English statute, and made the exception to the applica tion 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.

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

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

(d) No. 147.

(e) 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.

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

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

(h) Cic. de Orat. 1, 40. Suet. Jul. 52. Inst. 1, 10, b. ad. fin. Taylor, ibid. 344347. 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.

regarded as exclusively the feature of Asiatic manners, and of half-civilized life, and to be. incompatible with civilization, refinement, and domestic felicity. (a)

(4.) In most countries of Europe in which the canon law has

had authority or influence, marriages are prohibited be*82 tween near relations by blood or 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 considerable alterations of opinion, and with various modifications and extent. (b) 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,) (c) are evidently founded in the law of nature; and incestuous marriages have generally (but with some strange exceptions at Athens) (d) 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. (e)

(a) 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.

(b) 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.

(c) Co. Litt. 235, a. Gibson's Cod. 412. 1 Phillimore'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.

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

(e) Burgess v. Burgess, 1 Hagg. Consist. Rep. 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 ille

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 *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 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

gitimate relations, and within the purview of the prohibition. Horner v. Horner, 1 Hagg. Cons. Rep. 352, 3. Blackmore v. Brider, 2 Phil. 361. (a) Vaughan's Rep. 206. 2 Vent. 9, S. C. (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 Wm. 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 life-time of both the parties. The English statute has not declared what are the prohibited degrees, and we are to look for the

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. 63 Eng. C. L. 205.