« AnteriorContinuar »
contract, and they can then bind themselves irrevocably, and cannot afterwards be permitted to plead even their egregious indiscretion, however distressing the result of it may be. Marriage, before that age, is voidable at the election of either party, on arriving at the age of consent, if either of the parties be under that age when the contract is made." But this rule of reciprocity, however true in its application to actual marriages, does not apply to other contracts made by a competent party with an infant, nor even to a promise of marriage per verba de futuro with an infant, under the age of discretion. The person of full age is absolutely bound, and the contract is only voidable at the election of the infant. This point was ruled by the K. B. in Holt v. Ward Clarencieux, bafter the question had been argued by civilians, to see what light might be thrown upon it from the civil and canon law. Though this be the rule of the English law, the civilians and canonists are not agreed upon the question; and Swinburne was of opinion, that the contract in that case was not binding upon the one party more than upon the other.c
The age of consent, by the English law, was no doubt borrowed from the Roman law, which established the same periods of twelve and fourteen, as the competent age of consent to render the marriage contract binding. Nature has not fixed any precise period, and municipal laws must operate by fixed and reasonable rules. The same rule was adopted in France, before their revolution; 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.
(3.) No person can marry while the former husband or wife is living. Such second marriage is, by the common law,
a Co. Litt. 33. a. 79. b.
b 2 Str. 937.
c Harg. Co. Litt. lib. 2. n. 45.
d! Domat, 24.
e No. 144.
absolutely null and void ;" and it is probably a statute offence in most, if not in all of the states in the Union. In this state, it is made a felony 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 from the other by the space of five years together, and the one not knowing the other to be living within that time; or the persons, who at the time of such marriage, are divorced by the sentence of a competent court, or whose former marriage has been duly declared void, or was made within the age of consent. This statute was a transcript of the statute of 1 Jas. I. c. 11., with a reduction of the time of absence, from seven to five years; and though the penal consequences of 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 guilt of an unlawful connection. If there be no statute regulation in the case, the principle of the common law, and 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 mar riage tie.c
The statute of this state is susceptible of the same construction as that given to the statute of James, and therefore, if one of the married parties shall have continually remained abroad for five years, and be living, even within the knowledge of the party here, or the parties were at the time only under a divorce a mensa et thoro, yet the second
a Cro. Eliz. 858. 1 Salk. 121.
b Laws N. Y. 11th sess. ch. 24.
c1 Roll. Abr. 340. pl. 2. 357. pl. 40. 360. F. Williamson v. Parisien, 1 Johns, Ch. Rep. 389. Fenton v. Reed, 4 Johns. Rep. 52.
marriage, though void in law, would not be within the penalties of the act. It is still a divorce, and the act does not distinguish between the two species of divorce." The crime of bigamy, or of polygamy, as it ought more properly to be termed, has been made a capital offence in some, and punished very severely in other parts of Europe; but the new civil code of France,d only renders such second marriage unlawful, without annexing any penalty for the offence.
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. It was also forbidden by the Romans throughout the whole period of their history, and the prohibition is inserted in the Institutes of Justinian.s 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.
(4.) In most countries of Europe in which the canon
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.
b Harg. Co. Litt. lib. 2. n. 48.
c Barrington on the Statutes, p. 401.
d No. 147.
e Paley's Moral Philosophy, b. 3. c. 6.
f2 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. 44-347. The more ancient laws of Rome, prohibiting divorces, were extremely praised by Dionysius of Halycarnassus, lib. 2.
laws has had authority or influence, marriages are prohibits ed between near relations by blood or marriage. Probibitions similar to the canonical disabilities in 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 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 Athens) 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, has been inculcated; and an incestuous connexion between an uncle and niece, has been recently 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 in the threat, or ascending and descending lines, are unnatural and unlawful, and they lead to a confusion of rights and duties. On this point, the civil, the ca
a 1 Potter's Greek Antiq. 107. 2 Ibid. 267, 268, 269. Tacit. Ann. 12. sec. 4, 5, 6, 7.
b Co. Litt. 235. a.
Gibson's Cod. 412. 1 Phillimore's Rep. 201.355.
e Mitford's Hist. of Greece, vol. vii. p. 374.
d Burgess v. Burgess, 1 Haggard, 36. Such a connexion was held,
in equal abomination by Justinian's code. Code, 5. 9. 2.
non, and the common law, are in perfect harmony. In the very 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.
In several of the United States, marriages within the levitical degrees are made void by statute; but in this state we have no 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. It was considered, in the case of Wightman v. Wightman,c 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 this state, independent of any positive institution, the courts would not probably be authorized to interfere with marriages in the collateral line beyond the first degree, especially as the levitical degrees were not considered to be binding as a mere rule of municipal obe
a Vaughan's Rep. 206. 2 Vent. 9. S. C.
b Doctor Taylor, in his Elements of the civil law, p. 314—389. 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 first cousins is lawful, and the civil law properly established the fourth as the first degree that could match with decency.
e 4 Johns. Ch. Rep. 343..