[ *157 ] *Marriages liable to be objected to on the ground of the affinity of the parties, are by this statute generally made completely valid to all intents and purposes, unless there was a suit depending at the time of the passing of the act, and the burthen of bringing the case within the exception falls on the promoter of the suit. The object of the legislature, to be collected from the words of the statute, was, in the first place, to prevent such marriages in future, by rendering all such marriages null and void; and, secondly, to , prevent the uncertainty which existed under the old law, as to the status and condition of children, and the rights they have. This is not done absolutely in all cases, but only where no suit was depending at the time of the passing of the act. Foundation of the Rule prohibiting Marriages between near Relations.]-We have already adverted (g) to the general prevalence of laws prohibiting marriages between near relations, and now proceed to consider to what extent this rule prevails in this country. Incest, or the crime of carnal knowledge between persons who are near of kin, has been forbidden in a greater or less extent by the gen eral custom of all communities, and even in times very little advanced in civilization. Thus, the source of this law seems to lie in the native feelings of the human constitution, and not merely in those views of policy and discipline, though obvious and strong, which recommend the enforcing such a restraint.(h) [ *158 ] *The degrees prohibited by the Levitical law are such as are said to be against the law of nature, and such as are against the Divine positive law. Those against the law of nature are all marriages between the ascending and descending line in infinitum, and this is said to be contrary to the law of nature, because it tends to the destruction of the natural will of the Creator, which designed the preservation and continuance of such inhabitants of the world as he originally created, and all acts of men that tend to the destruction of such species, as the murder of an innocent person, are said to be against the law of nature; and therefore incest between the ascending and descending line, is contrary to the law of nature; for the mother would never have preserved and educated the female issue, if it had been admitted to the father to have had access to them: and fathers would never have educated and preserved their male ration of the same acts, and have been always contracted and solemnized according to the usages of persons of the said religion, and the said usages prohibit marriages by reason of consanguinity or affinity so far only as the same are prohibited by the law of Moses, as interpreted among the same persons. It then recites the stat. 6 & 7 Will. 4, c. 85, s. 2, ante, p. 65, and that doubts have arisen whether the marriages of Jews are or are not affected by the provisions of the above act; and that it was desirable that such doubts should be removed; and then proposed to enact that no marriage already or hereafter to be celebrated between any two persons professing the Jewish religion shall be impeached or rendered void or voidable by reason of consanguinity or affinity, unless the same be within the degrees of consanguinity or affin ity prohibited by the Mosaic law, according (h) See Hume's Comm. on Laws of Scotland, respecting Crimes, vol. i. p. 446; Dwight's Hebrew Wife, 67. issue, if they might have ascended the bed of their mothers. There is also another reason why this is called unnatural, and that is, because it destroys the natural duties between parents and children; for the parent could never preserve or maintain that authority that is necessary for the education and government of his child, nor the child that reverence that is due to the parent, in order to be educated and governed, if such indecent familiarities were admitted. There likewise seems to be a natural reason against this or any near intercourse between collaterals, which is drawn from that which is observed in brute creatures; viz. that it is necessary to cross the strain, in order to continue the species. It may be, that there being the same tone and figure in the blood, and a similar conformation of vessels, the circulation of it becomes torpid and inactive; whereas a new mixture of others of the same kind, where there is a different figure and motion of the blood and spirits, may add a new vigour and ability to the animal economy, which may also be a natural reason against such sort of incest.(i) *Those prohibited by the positive Divine law, are all collaterals to the third degree; and though this be not [ *159 ] contrary to the law of nature, yet it seems established on very strong reasons, for if a concourse between brothers and sisters might be allowed, or their marriages be tolerated, the necessity there is that they should be educated together, and the frequent opportunities they have with each other, would fill every family with lewdness, and create heart-burnings and unextinguishable jealousies between brothers and sisters, where the family was numerous; and it would confine every family to itself, and hinder the propagating common love and charity among mankind, because there would be a danger of taking a wife out of any family, if women were liable to be corrupted by such vicious freedoms. This prohibition is likewise carried to uncles and aunts, nephews and nieces; because, upon the death of the father and mother, they come into the education of the children loco parentum; and by consequence it was necessary to propagate the same reverence of blood in such near degrees, that the uncle might have the same regard and command as a father, and a niece the same duty as a daughter. It was also necessary, in order to perfect the union of marriage, that the husband should take the wife's relations, in the same degree to be the same as his own, without distinction, and so vice versa; for if they are to be the same person, as was intended by the law of God, they can have no difference in relations, and by consequence, the prohibition touching affinity must be carried as far as the prohibition touching consanguinity.(j) It is observed by a popular writer, in order to preserve chastity in families, and between persons of different sexes, brought up and living (i) Degeneracy is said to be the consequence of marriages between near relations. It is observed by Mr. Southey, in giving the character of the modern Spanish and Portugnese nobility, "The long continued moral deterioration of the privileged classes had produced, in many instances, a visible physical degeneracy; and this tendency was increased by those incestuous marriages, common in both countries, which pride and avarice had introduced, and for which the sanction of an immoral church was to be purchased." 1 Southey's History of the Peninsular War, 6; 1 Paris & Fonbl. Med. Jur. 168. (j) Gilb. Rep. 157, 158; Vaugh. 221, 242; See Bac. Abr. Marriage (A); Puffendorff, book 6, ch. 1, ss. 32, 36; Montesquieu, book 26, ch. 14. together in a state of unreserved intimacy, it is necessary, by every method possible, to inculcate an abhorrence of incestuous conjunctions; which abhorrence can only be upholden by the absolute reprobation of all commerce of the sexes between near relations. Upon this principle, the marriage as well as other cohabitations of brothers and sisters, of lineal kindred, and of all who usually live [ *160 ] in the same family, may be said to be forbidden by the law of nature. Restrictions which extend to remoter degrees of kindred than what this reason makes it necessary to prohibit from intermarriage, are founded in the authority of the positive law which ordains them, and can only be justified by their tendency to diffuse wealth, to connect families, or to promote some political advantage.(k) Different Modes of computing Degrees.]-Marriage in England is forbidden only between such persons as are prohibited to marry by the Levitical law, which is adjudged, in the collateral lines, to extend no further than the third degree. But the prohibition is equally binding, whether the persons are related by affinity or consanguinity. The civil law regards consanguinity principally with respect to successions; and therein very naturally considers only the person deceased, to whom the relation is claimed; it therefore counts the degrees of kindred according to the number of persons through whom the claim must be derived from him. The canon law regards consanguinity principally with a view to prevent incestuous marriages between those who have a large portion of the same blood running in their respective veins; and therefore looks up to the author of that blood as the common ancestor.(l) In computing the degrees according to the Roman law, every person who was generated made a degree, without reckoning the common stock. By this rule, father and son were in the first degree of consanguinity, because the son is the only person generated: brothers in the second, uncle and nephew in the third, and first cousins or cousins german in the fourth, and second cousins in the sixth. The computation of the degrees of propinquity in the canon law agrees precisely with that in the Roman, in the direct or right line of ascendants and descendants; but in the collateral the canonists compute, not by the number of persons descended on both sides, from the common stock, but by the number of generations upon one side only. According to this *reckoning cousins-german are in the [ *161 ] second degree, because each of them is but two generations distant from the grandfather, who is the common stock; whereas they are by the Roman rule in the fourth. In the unequal collateral line, where one of the two is farther removed than the other from the common stock, the canon law reckons the distance by the number of generations of the person farthest removed. Thus a niece is related in the second degree to her uncle, because she is related in the second degree to her grandfather, the common stock, and by the same rule she is no farther removed from her uncle's son; which abundantly discovers the absurdity of that mode of reckoning.(m) (k) Paley's Moral and Political Philosophy, book 3, part 3, ch. 5, p. 311, 20th ed. (1) 2 Bl. Comm. 224. (m) Ersk. Inst. book 1, tit. 6, s. 8. See I Browne's Civil Law, 61, 64; Wood's Civil Law, 116, 117; Taylor's Civil Law, 330, 332. By the old canon law, and the early decretals, marriages were prohibited down as far as the seventh degree; that is, persons who might be by the civil law computation in the twelfth degree to one another, were prohibited marriage by reason of too great proximity of blood. This prohibition was reduced to the fourth degree,(n) at which it now stands in countries where the canon law prevails by the fourth council of Lateran, which was held in the year 1215. The canon law prohibits in the fourth degree, which is that of second cousins, and the civil allows in the same degree, which, according to the civil law computation, is that of first cousius. And this perhaps accounts for a vulgar apprehension which is said to have prevailed in this kingdom, that first cousins may marry but second cousins may not.(o) *The laws of England agree with the civil law in this instance, and both with the Levitical.(p) [ *162 ] The relations of the husband stand in the same degree of affinity to the wife, in which they are related to the husband-by consanguinity; which rule holds also, è converso, in the case of the wife's relations. Thus where one is brother by blood to the wife, he is brother in law, or by affinity, to the husband. But there is no affinity between the husband's brother and the wife's sister, which is called by doctors affinitas affinitatis; because there the connection is formed not between one of the spouses and the kinsmen of the other, but between the kinsmen of both.(g) The Levitical computation of degrees is the same as the computation in the civil law, by which there are counted as many degrees as there are persons, the common stock not being reckoned. This was also the ancient manner of computing by the canon law, according to some authors, who suppose that Pope Alexander the Second, perceiving dispensations to be greatly lucrative to the church, and being at the same time conscious that it had universally obtained that persons might marry in the fourth degree, began a new computation, according to which the canonists have since reckoned all degrees, in the equal transversal lines from the common stock on one only; and in the unequal transversal lines, according to the distance of that person who is remotest from the common stock.(r) It is evident from this alteration in, or revival of, the canon law, that not only first cousins, but also second and third cousins, were In linea rectâ jus civile et et canonicum conspirant. Tot enim utrumque numerat gradus, quot sunt generationes. Hinc pater et filia uno, avus et neptis duobus; proavia et pronepos tribus gradibus distant. In linea obliquà jus civile eandem servat regulam. Canonicum distinguit inter lineam obliquam, equalem et inequalem, et de illa suppeditur axioma: quot gradibus personæ cognatæ distant a communi stipite tot gradibus inter se distant. Hinc frater a sorore jure civili dis. tat secundo: jure canonico primo gradu consobrini jure civili quarto; jure canonico secundo gradu. De inæquali linea regulam habet; quot gradibus persona remotior distat a communi stiptite, tot gradibus personæ distant inter se. Hinc, e. g. avi soror cog. nata mihi est gradu quarto juris civilis, gra du tertio juris canonici.-Heineccius Elem. lib. 1, tit. 10, de Nuptiis, ss. 154, 155. See Voet, lib. 23, tit. 2, s. 29. (n) Sin. Van. Leewen Cens. For. L. 13, n. 19; Carpzov. Jurisprud. Eccl. L. 2, def. 78; Gibs. Cod. 497. (0) Taylor's Civil Law, 331; Wood's Civil Law, 117. (p) Inst. 24 a. (9) Ersk. Inst. book 1, tit. 6, s. 8. (r) Decret. part 2, caus. 35, q. 5; Harris's Justinian, lib. 1, tit. 10, p. 29, 30. See Gilb. R. 159. prohibited from matrimony; nor is it less evident that so extensive a prohibition must have caused frequent dispensations. Statutes limiting the prohibited Degrees. The intention of the statutes, which will now be mentioned, and upon which the computation of degrees is at present founded, was to restore the Levitical computation. *By statute 25 Hen. 8, c. 22, ss. 3, 4,(s) it is enacted [ *163 ] as follows: Since many inconveniences have fallen by reason of marrying within the degrees of marriage prohibited by God's laws, that is to say, the son to marry the mother or the stepmother; the brother the sister; the father the son's daughter, or his daughter's daughter; or the son to marry the daughter of his father's procreate, and born by his stepmother; or the son to marry his aunt, being his father's or mother's sister; or to marry his uncle's wife; or the father to marry his son's wife; or the brother to marry his brother's wife; or any man to marry his wife's daughter, or his wife's son's daughter, or his wife's daughter's daughter, or his wife's sister; which marriages albeit they be prohibited by the laws of God, yet nevertheless at some time they have proceeded under colour of dispensation by man's power; it is enacted, that no person shall from henceforth marry within the said degrees. Provided, that this article concerning prohibitions of marriages within the degrees aforementioned shall always be taken and interpreted of such marriages, where marriages were solemnized, and carnal knowledge was had.-s. 14. And by the 28 Hen. 8, c. 7, s. 7,(t) it is in like manner enacted thus: Since many inconveniences have fallen by reason of the marrying within the degrees of marriage prohibited by God's law, that is to say, the son to marry the mother, or the stepmother carnally known by his father; the brother the sister; the father his son's daughter, or his daughter's daughter; or the son to marry the daughter of his father, procreate, and born by his stepmother; or the son to marry his aunt, being his father's or mother's sister; or to marry his uncle's wife, carnally known by his uncle; or the father to marry his son's wife, carnally known by his son; or the brother to marry [ *164 ] *his brother's wife, carnally known by his brother; or any man married, and carnally knowing his wife, to marry his wife's daughter, or his wife's son's daughter, or his wife's daughter's daughter, or his wife's sister. And further to declare the meaning of these prohibitions, it is to be understood, that if it chance any man to know carnally any woman, that then all and singular persons, being in any degree of consan (8) Dr. Gibson says the above act is repealed by the 28 Hen. 8, c. 7, s. 3, and by the 1 Mar. sess. 2, c. 1, s. 3, and which Mr. Kay takes notice of as repealed, but which Mr. Hawkins and Mr. Raithby insert in their edition of the statutes, as being in force and unrepealed. (1) This statute is not in the collection of Mr. Hawkins, Mr. Kay or Mr. Raithby; and Dr. Gibson (Gibs. Cod. 496) thinks it to be repealed; but which, in the cases of Harrison and Burwell, Vaugh. 215; 2 Vent. 11; and Hill v. Good, Vaugh. 325, is said to be unrepealed. This act was repealed by 1 & 2 P. & M. c. 8, s. 4, so far as concerned a prohibition to marry within the prohibited degrees, and does not appear to have been revived. See stat. 1 Eliz. c. 1, s. 4. |