Wightman v. Wightman, (a) 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 considered to be binding as a mere municipal rule of *84 obedience. (b) The Napoleon code (c) 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

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.

(a) 4 Johns. Ch. Rep. 343.

(b) By the New York Revised Statutes, vol. ii. p. 139, sec. 3; ibid. 688, sec. 12, and which went into operation in 1830, 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 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, 1836, part 4, tit. 1, ch. 130.

(c) Nos. 161, 162.

1 Marriage of a man with his mother's sister is not void by the laws of nature. Sutton . Warren, 10 Met. R. 451. The marriage of a man with the daughter of his sister, has been held to be voidable by the laws of God. Bonham v. Badgley, 2 Gilm. R. 622.

the court of delegates in the case of Butler v. Gastrill, (a) 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. (b) 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 *85 which I have referred, the courts bestowed immense labor, and displayed profound learning in their investigations on the subject. (c)

(a) Gilbert's Eq. Rep. 156.

(b) 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.

(c) 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 New Brunswick, 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. 302. Harris v. Hicks, 2 Salk. 548. Ray v. Sherwood, 1 Curteis, 173, in the arches court, and affirmed, on appeal, in 1837, 1 Moore, Privy Council, 395, 396. Shelford on Marriage and Divorce, pp. 172, 178. It is said that marriage with the sister of a deceased wife is lawful in Prussia, Saxony, Hanover, Baden, Mecklenburg, Hamburg, Denmark, and most of the other Protestant states of Europe. In most Catholic countries such marriages are formally prohibited, but dispensations easily obtained. Hayward's Remarks on the Law regarding Marriage with the Sister of a Deceased 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 nor 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 discussed in the British House of Commons, for a law to legalize the marriage of

(5.) The consent of parents and guardians to the marriage of minors is not requisite to the validity of the marriage. In New York, there was no statute provision in the case until 1830, and marriages were left without parental restraint to the freedom of the common law, and, consequently, with as few checks on the formation of the marriage contract as in any part of the civilized world. (a) The matrimonial law of Scotland and of Ireland is equally loose, (b) and so was the English law prior to the statute of 26 Geo. II. ch. 33. That statute, among other things, declared all marriages under licences, when either of the parties were under the age of twenty-one years, if celebrated without publication of bans, or without the consent of the father, or unmarried mother, or guardian, to be absolutely null and void. (c) The English statute pursued the policy of the

widowers with their deceased wives' sisters, but it was rejected. In Virginia, in 1830, in the case of The Commonwealth v. E. & K. Perryman, marriage with a brother's widow was held illegal under the statute code, and it was judicially dissolved. 2 Leigh's Rep. 717. Act of 1792, R. C. Virginia, vol. i. 274. In Massachusetts, the marriage between a man and his deceased wife's sister was formerly lawful. (Parsons, Ch. J., 6 Mass. Rep. 379.) And so it continues to be by the Revised Statutes, 1836, p. 475. The Rev. Doctor Mathews, of New York, in an able argument in favor of the lawfulness of marrying a deceased wife's sister, delivered before the general synod of the Reformed Dutch Church, in June, 1843, states, that in every state in the Union, except Virginia, such marriages are allowed to be lawful. But marriages of this kind, though prohibited by positive law in one state, would be regarded as valid in that and every other state, if made in a state or country where no such prohibition exists. The rule is, however, subject to this limitation, that if a foreign state should allow marriages clearly incestuous by the law of nature, they would not be allowed to have validity elsewhere. Greenwood v. Curtis, 6 Mass. Rep. 378.

(a) See infra, art. 6, from p. 86 to p. 92, showing statute regulations in the several states as to marriage, and requiring the consent of parents and guardians; but they do not make void the marriage without that consent, and only impose penalties on the persons pronouncing the marriage without that consent.

(b) Erskine's Inst. vol. i. pp. 89-91, (6th. edit. 61.) M'Douall's Inst. vol. i. p. 112. 2 Addams's Rep. 375. 1 Ibid. 64. Shelford on Marriage and Divorce, p. 91.

(c) (In Brealy v. Reed, 2 Curteis, 833, in the consistory court of London, a marriage was pronounced null by reason of omission of the middle christian name of the husband in the publication of bans, wilfully and knowingly with the consent of the parties, and for a clandestine purpose.)

'A condition in a legacy or devise, restraining marriage, is valid in respect to the testator's widow, but is not valid as to any other woman. Lloyd v. Lloyd, 10 E. L. & E. Rep. 139.

civil law, and of the law of the present day in many parts of Europe, in holding clandestine marriages to be a grievous evil,

so far as they might affect the happiness of families and *86 the control of property. (a) Though the Roman law greatly favored marriages by the famous jus trium liberorum, allowing certain special privileges to the parent of three or more children; yet it held the consent of the father to be indispensable to the validity of the marriage of children, of whatever age, except where that consent could not be given, as in cases of captivity, or defect of understanding. (b) Parental restraints upon marriage existed likewise in ancient Greece, (c) and they exist to a very great extent in Germany, (d) Holland, (e) and France. (f) The marriage of minors, under these European regulations, is absolutely void, if had without the consent of the father or mother, if she be the survivor; and the minority in France extends to the age of twenty-five in males

(a) The statute of 4 Geo. IV. c. 76, which reënacted most of the provisions of the statute of Geo. II., punishes clandestine marriages by loss of property, but does not violently make void the contract, when some of the provisions of the statute are broken through. See 1 Addams's Rep. 28, 94, 479. Rex v. Inhabitants of Birmingham, 8 Barnew. & Cress. 29, and infra, p. 90. In Wiltshire v. Wiltshire, Haggard's Eccl. Rep. vol. iii. p. 332, it was held, that a marriage by bans, where, by the consent of both parties, one of the christian names of the man (a minor) was omitted for the purpose of concealment, was null and void under the statute. In England, filing a bill in chancery in behalf of an infant, makes her a ward of the court, and marrying such an infant without the consent of the court, is a contempt of the court in all concerned, and the contempt will not be discharged until a proper settlement be made for the wife. See this point well examined in Shelford on Marriage and Divorce, pp. 309–322.

(b) Inst. 1, 10, Fr. Taylor's Elements of the Civil Law, 310-313. If the parent unreasonably withheld his consent, he might be compelled by the governor of the province, at the instance of the child, to give it. Dig. 23, 2, 19.

(c) Potter's Greek Antiq. vol. ii. pp. 270, 271.

(d) Heinec. Elem. Jur. Ger. lib. 1, sec. 138. Turnbull's Austria, vol. ii. ch. 7, says that the necessity of certificates of education, to warrant marriage, is a great impediment to the celebration of marriages.

(e) Van Leeuwen's Com. on the Roman Dutch Law, p. 73.

(f) Pothier, Traité Du Contrat de Mar. Nos. 321-342. Code Napoleon, Nos. 148160. Touiller, Droit Civil Français, tom. i. pp. 453-463. But a marriage in France, by a British subject, under the age of twenty-five, and with a French woman, is held valid in England, where there is no such restriction. At least the court would not allow the marriage to be impeached, when the marriage was solemnized according to the directions of an English statute. Lloyd v. Petitjean, 2 Curteis, 251.

and twenty-one in females, and even after that period the parental and family check continues in a mitigated degree.

(6.) No peculiar ceremonies are requisite by the common law to the valid celebration of the marriage. The consent of the parties is all that is required; and as marriage is said to be a contract jure gentium, that consent is all that is required by natural or public law. (a) The Roman lawyers * strongly *87 inculcated the doctrine, that the very foundation and essence of the contract consisted in consent freely given, by parties competent to contract. Nihil proderit signasse tabulas, si mentem matrimonii non fuisse constabit. Nuptias non concubitus, sed consensus facit.(b) This is the language equally of the common (c) and canon law, and of common reason.

If the contract be made per verba de præsenti, and remains without cohabitation, or if made per verba de futuro, and be followed by consummation, it amounts to a valid marriage in the absence of all civil regulations to the contrary, and which the parties (being competent as to age and consent) cannot dissolve, and it is equally binding as if made in facie ecclesiæ.(d)

(a) Grotius, b. 2, ch. 5. sec. 10.

Bracton, lib. 1, ch. 5, sec. 7.

(b) Dig. 35, 1, 15. Id. 24, 1, 13. Id. 50, 17, 30. Code, 5, 4, 9, and 22.

(c) Co Litt. 33, a.

(d) The Supreme Court of the United States, in Jewell v. Jewell, 1 How. U. S. 219, were equally divided in respect to the above paragraph or proposition in the text, and gave no opinion. The case came up on error from the Circuit Court in South Carolina. So, in the case of The Queen v. Millis, 10 Clark & Finelly, p. 534, on appeal from Ireland to the House of Lords, the lords were equally divided on the same question. Lord Brougham, Lord Denman, Ch. J., and Lord Campbell being in favor of the validity of the marriage at common law, and Lord Ch. Lyndhurst, Lord Cot. tenham, and Lord Abinger, against it. The question had been referred by the lords to the judges, and Lord Ch. J. Tindal, in behalf of the judges, gave their unanimous opinion against the validity of the marriage, and held, that by the law of England, as it existed at the time of the marriage act, a contract of marriage per verba de præsenti was indissoluble between the parties themselves, and afforded to either of them, by application to the spiritual court, the power of compelling the solemnization of an actual marriage; but that such contract never constituted a full and complete marriage in itself, unless made in the presence and with the intervention of a minister in holy orders. The civil contract and the religious ceremony were both necessary to a perfect marriage by the common law. The question was most elaborately and learnedly discussed. Catherwood v. Caslon, 13 Meeson & Welsby, 261, S. P.2

1 But see Parsons on Contracts, vol. i. p. 560.

2 The Court of Queen's Bench in Ireland pronounced for the validity of a marriage, in a