« PreviousContinue »
nephew to marry his aunt. Nor is it of any moment to allege, that the first is a more favourable case, because the natural superiority is preserved, since the parity of reasoning, which is the proper rule of judging, is the very same in both.
Nor do these rules hold only in lawful marriages, but are equally binding in unlawful conjunctions ; for by the same rule that a man may not marry his father's wife, he ought not to take his father's concubine. ... Nor are bastard children any more at liberty to marry within the degrees of the Levitical law than those which are legitimate. In this case legitimacy or illegitimacy makes no difference; for if it did, a mother might marry her bastard son, which is shocking to think of!.”
It is of marriages contracted in opposition to these restrictions, that the words in the Office of Matrimony will be most appropriately interpreted, which relate to the “cause or impediment why the parties may not be lawfully joined together," and to the circumstances “contrary to God's word,” under which they “ are not joined together by God, neither is their matrimony lawful.” Such marriages are by the ninety-ninth canon “ adjudged incestuous and unlawful, and consequently shall be dissolved as void
i Wheatly's Illustration of the Common Prayer, chap. X. sect. iii. s. 2. See also Burn's Eccl. Law, with cases in point. But does the Scripture or the English law recognize such incorporation of the man with the woman, as to make the consanguinei of the one the affines of the other, and to give to the bastard any relations by atlinity? The Jewish and the Lutheran interpreters restrict the incest, precluding marriage, to matrimonial intercourse.
from the beginning; and the parties so married shall by course of law be separated.” Such marriages are not, however, necessarily followed by the nullity, which is the ordinary penalty of incest; and the English law, which is scrupulous in defining the offence, takes no active part in demanding the punishment, but leaves to the ecclesiastical magistrate the separation of the offenders, and the infliction of punishment for the offence pro salute animarum. But such marriages, although absolutely unlawful, not being void ab initio, but voidable only by sentence of nullity and separation, are esteemed valid to all civil purposes, unless such separation is actually made during the life of the parties. For after the death of either of them, the courts of common law will not suffer the spiritual courts to declare such marriages to have been void: because such declaration cannot now tend to the reformation of the parties. It is only when the marriage is thus entirely dissolved, that the issue are bastards. It has been often supposed, that the avoidance of such marriages may be prevented by a fictitious suit, at the instance of either of the parties, which by the law's delay may never be brought to issue: but they may also be avoided at the suit of third persons, whose interests may be prejudiced or likely to be prejudiced by such a connexion, and who shall exhibit satisfactory proof of the interest on which they ground the right of interference. The parties are also liable to ecclesiastical punishment, for the crime of incest, on the presentment of the persons
m Blackstone's Com. b. i. c. 15,
lawfully authorized to notice the offence ; so that in a proceeding of this nature, technically called a Cause of Office, the nullity of the marriage becomes an incidental question, necessarily proved by the evidence which establishes the offence, and is disposed of by a declaration of its nullity, before the parties are pronounced guilty of the incest".
It is a difficulty which has perplexed many ingewuous minds, and which has been sometimes argued with considerable flippancy, that first cousins may, and that second cousins may not, marry. The difficulty has probably arisen from the different provisions of the civil and canonical laws, of which the former permitted the marriage of first, as the latter, extending its prohibitions to the fourth degree, precluded the marriage of second cousins'. In England, however, “ no cousins whatsoever, whether in the first, second, or third descent, are prohibited marriage, either by the laws of God or of the land. The more ancient prohibition of the canon law was to the seventh generation ; and the same was for. merly the law of the Church of England, as appears by the canons of two different councils. But in the fourth council of Lateran, which was held A. D. 1215, the prohibition was reduced to the fourth degree; as appears, not only by a statute in the thirty-second of Henry VIII, but also by the frequent dispensations for the fourth degree and no
" Poynter's View of the Doctrine and Practice of the Eccl. Courts, c. 7.
• Burn's Eccl. Law. “It is observable, that neither uncles and nieces, nor even cousins, are permitted to marry” among the Caffres. Enc. Metr.
farther, which we meet with in our ecclesiastical records, as granted by special authority from Rome. But now this was only for the increase and augmentation of the pope's revenue, who always took care to be well paid for his licence or dispensation. And therefore, at the Reformation, when we got free from our bondage and subjection to him, no marriages were permitted but within the third degree, which are expressly prohibited by the laws of God, as well as by the dictates of right reason, and which, therefore, no power or authority can dispense with. But now none that we call cousins are within the third degree of kindred: even first-cousins or cousin-germans are four removes distant P.”
There are other civil disabilities, created or enforced by the municipal laws of England, which render the marriage thus contracted, not voidable but void ; and if any persons under these circumstances come together, it is by a meretricious, not a conjugal union. These disabilities are, 1. a prior marriage, which necessarily precludes any other marriage: 2. want of age: 3. want of reason, without which no lawful contract can be formed; and, 4. want of legal solemnization to ratify the contract. No just exception can be made to these disabilities, or the nullity which they imply. There is another impediment, which is but rarely agitated, and of which the proof and the discussion are so offensive, that public morals should prevail over private inconvenience in some method of silently effecting its suppression. In the marriage of a dumb person a sign
Wheatly, ubi supra.
is a sufficient evidence of assent. Marriage is not restricted at any season of the year; nor is a woman, although it was the law before the conquest, prohibited from marrying at any time after her husband's death.
The tedious prolixity of this discussion of incestuous and illicit marriages, adinits the addition only of a very brief recapitulation ; that in all ages, in all countries, and under all dispensations of religion, various restrictions have been laid upon marriage; that these restrictions have been carried to an extent which is not required by any moral policy, or justified by any religious authority; and that in England these restrictions are explicit and distinct, and established upon a Scriptural foundation.
4 Blackstone and Burn.