Ray v. Sher

Commonwealth v. Leftwich, 5 Rand. R. 657. Kelly v. Scott, 5 Gratt. R. 479.) But in several of the states, the practice has been expressly or impliedly sanctioned by judicial authority. (Paddock v. Wells, 2 Barb. Ch. R. 331. Blodget v. Brinsmaid, 9 Vt. R. 27. The State v. Shaw, 3 Ired. R. 532. Moses v. The State, 11 Humph. R. 232. Morgan v. The State, 11 Ala. R. 289. Goodall v. Thurman, 1 Head's R. 209. Greenwood v. Curtis, 6 Mass. R. 358, 379.) As before intimated, under the English statute, it is incestuous for a man to marry his deceased wife's sister, or for a woman to marry her deceased husband's brother. (Hill v. Good, Vaugh. R. 302. Harris v. Hicks, 2 Salk. R. 548. wood, 1 Curt. Ec. R. 173. Regina v. Chadwick, 12 Jur. 174. Aughtie v. Aughtie, 1 Phillim. R. 201.) And in most Catholic countries such marriages are formally prohibited, while in most Protestant countries they are lawful. Under the statute in force in England, it has been held that the marriage of a man with the daughter of the half sister of his deceased wife, is null and void; and further that a marriage within the prohibited degrees of consanguinity or affinity, is null and void, although one of the parties is illegitimate. (The Queen v. Brighton, 101 Eng. C. L. R. 446.) § 640. By the statute of New York, marriages between parents and children, including grandparents and grandchildren of every degree, ascending and descending, and between brothers and sisters of the half, as well as the whole blood, are declared to be incestuous and absolutely void; and the prohibition extends to illegitimate as well as legitimate children and relatives. (2 Rev. Stat. part 2, ch. 8, tit. 1, § 3. 2 Stat. at Large, 144.)

The law of Massachusetts upon the subject is substantially the same as in New York. (Gen. Stat. ch. 106, §§ 1-6.)

It has been held that a marriage, valid where it was contracted, is valid in Massachusetts, if not incestuous by the law of nature, or not made void by the statute in regard to residents of the state going out of the state and there having their marriage solemnized, when such marriage, if solemnized in the state, would be void: and, in the same case, it was decided that the intermarriage of a man and his mother's sister, though void by the statutes of the state, is not incestuous by the law of nature, and was not void by the law of England before the statute of 6 William IV, chapter 54, though it was voidable by process in the ecclesiastical courts, and, therefore, such a marriage celebrated in England, between a man

and his mother's sister, and never avoided there, though absolutely prohibited by the Massachusetts statute, was, nevertheless, recognized as binding in that state. (Sutton v. Warren, 10 Metcalf's R. 451.)

By the statutes of Pennsylvania all marriages within the degree of consanguinity or affinity, according to the table established by law, are declared void to all intents and purposes; and the table of forbidden degrees established by the statute is about the same as that established in England, except the grandparents of the parties are not mentioned, and some of the more distant collateral relatives are omitted. (Laws of 1860, Purdon's Dig. 346.)

Other states have similar enactments to those already referred to, and probably in most of them marriages within the prohibited degrees are, by statute, absolutely void.

§ 641. Another and fifth impediment to marriage, proper to be noticed, is that which sometimes obtains by reason of race or color and civil condition. In some countries and states statutes exist to prevent intermarriages between the white races and people of color; and, under the civil law, certain persons were prohibited from joining in marriage because of their civil condition. Thus, in several of the United States, marriages are positively forbidden between the white and colored races, and occasionally a very nice question has been presented to the courts respecting the meaning of the words "negro," "mulatto," "persons of color," and "white persons." In one case, in the State of Maine, Shepley, Ch. J., observed: "There is a difference of opinion respecting the proportion of African blood which will prevent a person possessing it from being regarded as white. Some courts appear to have held that a person should be so regarded when his white blood predominated both in proportion and in appearance. Those least disposed to consider persons to be white who have any proportion of African blood have admitted that persons possessing only one-eighth part of such blood should be regarded as white." (Bailey v. Fiske, 34 Maine R. 77.) Most of the late slave states had statutes prohibiting intermarriage between free negroes and slaves, but all of those laws have been either repealed or become obsolete, and but few of the states have statutes, at present, positively prohibiting intermarriages between white persons and persons of color. (But vide The State v. Walters, 3 Ired. R. 455. The State v. Fore, 1 ib. 378. The State v. Hooper, 5 ib. 201. The State v. Roland, 6 ib. 241.

The State v. Milton, Busbee's R. 49. Barkshire v. The State, 7 Ind. R. 389. The State v. Brady, 9 Humph. R. 74.)

Mr. Burge, in his treatise upon the colonial and foreign laws, observes: "There were certain impediments to marriage peculiar to the civil law, which are not adopted in the codes of other countries. These were impediments described as being ex causa potestatis. Thus, a tutor or curator could not marry his ward until his office had terminated, or unless his accounts had been passed. A person administering a government, or public office, in a province, and the members of his family, were not permitted to intermarry with a person domiciled in his province, unless they had been betrothed to each other before he had accepted the office. Notwithstanding these prohibitions, the subsequent voluntary cohabitation of the parties, after the relation which caused the prohibition had ceased, rendered the marriage valid ab initio." (1 Burge's Colonial and Foreign Laws, 138.)

So, also, no person is permitted to marry a ward of the court without the express sanction of the court; and if a man should marry a female ward without the consent and approbation of the court, he will be treated as guilty of contempt, even though he was ignorant of the fact that she was a ward of court. And when there is reason to suspect an intended and improper marriage without its sanction, the court will, by an injunction, not only interdict the marriage, but also interdict communication between the ward and her admirer. (2 Story's Eq. Jur. §§ 1359, 1360.) This may not be regarded as strictly an impediment, but it is a provision of law to secure due marriages and protection to infants very proper to notice. The interdict of marriages between persons of the white and colored races by statute is becoming more and more uncommon, as experience has shown that the matter may very properly and safely be left to the education, taste and customs of the people.

§ 642. By the civil law, persons in a state of slavery or servitude are not entitled to the rights and considerations of matrimony, and hence, there is no recognized marriage relation in law between slaves. Nor were slaves under the civil law proper objects of cognation or affinity, but of quasi-cognation only. (Taylor's Elements of Civil Law, 429. Cooper's Justinian, 411, 420.) Contubernium was the matrimony of slaves; a permitted cohabitation not partaking of lawful marriage, which they could not contract. The same disability applies at the present day in the case of slaves

wherever slavery exists. The state of slavery in Cuba, and in Brazil, and lately in this country, compares with that existing under the Roman law in many respects. The progress of society in civilization, more correct notions on the subject of moral obligation, and, above all, the benign influence of the Christian religion, have softened many of the rigors attendant on slavery among the ancients; but the rights of the slave in respect to marriage remain substantially as under the civil law. The Hebrew law did not recognize marriage among slaves of other than Hebrew origin, although a relation existed similar to the contubernium of Rome. The marriage of free men and women with slaves was very much discouraged by the laws, civil and ecclesiastical, of the middle Heavy penalties were annexed, and the right was even conceded to parents to kill their children who persisted in such an alliance. The question was submitted to the See of Rome, whether a free man might put away a wife taken from the servile class, and take a free woman to his bed; and Leo responded in the affirmative. The contract of marriage not being recognized among slaves, none of its consequences follow from the contubernial state existing between them. (Cobb on Slavery, §§ 273, 274.) But this question has ceased to be of much interest in this country, as slavery no longer exists here; and it is to be hoped that the inhuman institution will soon be abolished throughout the civilized world.

ages.

§ 643. The sixth and last impediment to marriage, is a prior marriage, or having another husband or wife living, in which case, besides the pains and penalties consequent upon the act as a felony, the second marriage is to all intents and purposes absolutely void. Such is the common law upon the subject, and the same may probably be said to be the law in all of the American States and territories, except the territory of Utah. Polygamy is condemned both by the law of the New Testament and the policy of all Christian states. For example, by the statutes of New York, it is declared that no second or subsequent marriage shall be contracted by any person during the life-time of any former husband or wife of such person, unless the marriage with such former husband or wife shall have been annulled or dissolved for some cause other than the adultery of such person; or unless such former husband or wife shall have been finally sentenced to imprisonment for life; and every marriage contracted in violation of this provision shall be absolutley void; except that if any person whose husband or

wife shall have absented himself or herself for the space of five successive years, without being known to such person to be living during that time, shall marry during the life-time of such absent husband or wife, the marriage will be void only from the time that its nullity shall be pronounced by a court of competent authority. And, further, no pardon granted to a person sentenced to imprisonment for life shall restore such person to the rights of any previous marriage. (2 Rev. Stat. part 2, ch. 8, tit. 1, §§ 5, 6, 7. 2 Stat. at Large, 144, 145.)

Under these provisions of the statute it has been held that when the husband has been absent more than five years, and his wife has contracted a second marriage in good faith, her husband not being known to her to be living within the five years, a cohabitation with the second husband after the mistake is discovered will not entitle the first husband to a divorce on the ground of adultery. The last marriage being voidable merely, but not void, the remedy of the first husband is by a bill to annul the voidable marriage. (Valleau v. Valleau, 6 Paige's Ch. R. 207.) And it has been further held that such second marriage under such circumstances, can be declared void only on the application of one of the parties to it, during the life-time of the other; and that it cannot be declared void collaterally, after the death of the first husband in actions instituted by creditors. (Cropsey v. McKenney, 30 Barb. R. 47. Vide also Cropsey v. Ogden, 11 N. Y. R. 228.)

In the State of Massachusetts, the statute upon the subject, except that the provision with respect to the absence of one of the parties under the circumstances suggested is seven years instead of five, as in New York. (Gen. Stat. ch. 106, § 4, ch. 107, § 30. Vide Commonwealth v. Mash, 7 Met. R. 472.)

In this state it has been held that when a man is divorced for adultery, and marries again during the life of his former wife, his last marriage is absolutely void. (Commonwealth v. Hunt, 4 Cush. R. 99.) But when a marriage in this state is entered into by a woman previously married in another state, and then divorced for the acts of the husband which would not be a cause of divorce in this state, it was held that the last marriage was valid, although contracted while her former husband was still living. (Clark v. Clark, 8 Cush. R. 385.)

In the State of Ohio, the provisions of the statute are similar to those of New York upon the subject, except that the absence must