CHAPTER V.

CIVIL LAW AS RESPECTS THE MOSAIC CODE.

In accordance with the opinions and decisions of the Councils and Churches, have been the opinions and decisions of nearly all Civil Governments from the earliest records of history. I shall now give, in the most summary form, the chief laws and usages bearing on the subject. In reference to human legislation in the matter of incest, in the time of the Roman Emperors, Professor Gibson says:

"It is remarkable that almost as soon as it was possible to have human legislation in harmony with that of the Christian Church you have such marriages forbidden. This is pretty clear proof of what was the prevailing opinion of Christians at that time. You have these prohibitive laws in the Codex Theodosianus. It may be useful, for the sake of the unlearned reader, to say that this was a collection by the Emperor Theodosius of all the laws of the Christian Emperors. The edition before us is that of Lyons, 1665, in four folio volumes, with the commentaries of James Godfrey, whom the title calls a man of senatorian rank, and an illustrious jurist of this age.' In III. Cod. Tit. xii., there is first a law forbidding marriage with a niece, the daughter either of a brother or sister, as an abomination, and making its violation a capital crime. It is addressed to the governors of Phoenicia and the adjacent countries. It bears date 339. The law on this point among the Romans varied. Godfrey tells us that by very ancient law (antiquissimo jure), the marriage of the daughter both of a brother and sister was forbidden; but that afterwards a distinction was made between the brother's and the sister's daughter that it was allowed to the former to marry her uncle by the father's side, but not her uncle by the mother's

-that Claudius, desirous of marrying Aggripina, his niece, procured an alteration of the law in his favour. In this he had great difficulty, and it required much management, and the aid of some subservient statesmen and imperial gold, to bring it about. The narrative is given by Tacitus (See Annal.,' lib. xii.). Godfrey refers also to Suetonius, in his 'Life of Claudius,' chap. 26; Seneca, in his 'Octavia,' act i.; and the old scholiast, Juvenal. The words of Tacitus are remarkable-that even after all had been prepared, and the marriage agreed on, they dared not to celebrate the rites of marriage, there being no example of the daughter of a brother led to the house of her uncle. And, moreover, if the incest were despised, they were afraid it might turn out to the public damage.' The sequel proved that their fears were well founded. The whole scene, as narrated by Tacitus, is a curious display of the time-serving profligacy of the senatorial agents, and the base subserviency of an immoral rabble. There was a Vitellius to talk over the one and to corrupt the other. Parallels are not wanting in the present day.

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"Those who desire to see more on the Roman law may consult the Institutes of Justinian, De Nuptiis. x. Titulus, Qui possunt nuptias Contrahere,' in which they will find the doctrine of affinity maintained among heathen Romans, as it has been among the Jews and Christians, Roman Catholics and Protestants. The example of Claudius was followed by Domitian. In a short time after, the ancient law was restored. Various changes occurred, as might be supposed, when the law stood in the way of the lusts of the Roman Emperors. There is no law extant by Constantine the Great. The ancient law was restored by his son, who attached capital punishment to its incestuous. violation. The law of heathen Rome, then, was certainly more stringent than that of some modern legislators, who seem, in this respect, to have outstripped in license not only the law of Moses, but even of heathen Rome.

"There is next the law of Constantius concerning the unlawful marriage with the wife of a brother and the sister

of a wife. The law was passed about the year 355. It is as follows:- Althing the andents believed that it was allowable the marriage of a brother being dissolved, that Lis brother should many his wife (uzorem); and that it was also lawil after the decease of a woman (mulieris), to contract marriage with the sister of the same, let all (universi, abstain from marriages of this sort, nor suppose that the children procreated of such unions can be legitimate; for it is proper that those who may be thus born be spurious.'

"Godfrey, in his notes, understands by the word 'ancients,” Jews—referring to the permission of the leviral law, in Deut. xxv. 5, and Ruth iv. 4, and to the Egyptians, as well as ancient Romans. Godfrey has the following commentary :—“ The same woman is forbidden to marry two brothers in succession, and the same man two sisters; or (which is the same thing), a brother to marry the wife of his brother, and the same to marry the sister of his wife, by the Emperor Constantius, by his law, A.D. 355, equally as by the law of Theod. the Great, Fratris 5 cod. eod. tit. De Incestis Nuptiis; by Arcadius, 1. 3, h. 1; by Theodosius the Younger, 1. ult. h. t.; by Zeno, 1. pen. cod. eod.; and by Anastasius, l. ult. cod. eod.; and thus there are extant altogether six constitutions concerning the matter and its prohibitions.' He then gives a profusion of facts, and illustrations, and proofs, and refers to the Christian Canons already quoted.

"We have next the laws of Arcadius and Honorius declaring the penalties of incestuous marriages, with an enumeration of the degrees embraced, and among others the marriage of a man with the sister of his wife. It bears date 396. And further, under the same title xii., we have the law of Theodosius the Younger, bearing date 415, declaring the children illegitimate, and excluding them from succession to the father's inheritance. These kinds of marriages, it appears by the Cod. Justinianus, were forbidden by Valentinian, in the year 388. It is remarkable (and remarkable only because parties have rested much on

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the circumstances that the Levitical law does not use the word widow' in prohibiting a man from marrying his brother's wife), that in all these canons, and laws, and comments, the phrase brother's widow' is never once used in relation to the wife of the husband, whether dead or alive; but always, without an exception, the phrase is brother's wife- uxor, uxorem'a fact which stamps absurdity on the ingenious shifts of some modern critics on the subject. This, says Bush, was the common usage of the Hebrews, Greeks, and Romans, and such is that of the French, Germans, the Spanish, and the Italians, as well as English. In none of the versions of the Scriptures, in these languages, is the word widow used in such cases."

After this historical proof, one may well be surprised at the ignorant asseverations, so industriously circulated by writers on the other side, that the prohibitions of such marriages owe their origin to the Pope of Rome and to Henry VIII. of England, though not at the unscrupulous use made of them by parties involved in difficulties by their own contempt, if not of the laws of God, certainly of the laws of their country.

It is unnecessary to attempt to trace human legislation down through the period of the dark ages till the time of the Reformation. Of course it was based, throughout Europe, on the Canon Law; and was, and is still, therefore, the law in Popish countries. The weight that is due to this fact must be otherwise determined.

I have already indicated in general terms the views of Christian, or so called Christian, States, to the same effect— Prussia and the United States being exceptional. In the former we can count no fewer than 7800 divorces in three years, or about 2600 a year, a state of things arising from lax notions and lax discipline on the subject of marriage which no one would care to import into this country; and in the latter we do not need to be informed how pernicious have been the results of marriages celebrated in spite of the most solemn injunctions and prohibitions of the Lawgiver of the Jews.

On the law of England as to the prohibited degrees, no higher authority can be given than that of Blackstone. The learned commentator thus declares himself:

"By marriage, the husband and wife are one person in law. Upon this principle of an union of person in husband and wife, depend almost all the legal rights, duties, and disabilities that either of them acquire by marriage. The same degrees by affinity are prohibited. As a husband is related by affinity to all the consanguinei of his wife, and, vice versa, the wife to all the husband's consanguinei; for the husband and wife being considered one flesh, those who are related to the one by blood, are related to the other by affinity; therefore a man after his wife's death cannot marry her sister, aunt, or niece."

I now quote the eminent authority of Edward Badeley, Esq., given in his celebrated speech on the law of England, in the case of Brook v. Armitage. In that speech he reviews from the earliest periods the decisions of the ecclesiastical courts and law lords on the Mosaic Code, and then says:

"It seems, my Lords, from all these authorities (authorities of undoubted weight), that supposing the question was at all doubtful upon the statute of 32 Henry VIII., and upon the rule of the canon law, as left untouched by that statute, the decisions of the ecclesiastical courts from that period downwards are the best evidence, and the most conclusive evidence, of the law upon the subject. Then, my Lords, I would ask, how have these courts decided? The answer

is, uniformly in one way. The cases which were cited to your Lordships in the former argument were some of them cases distinctly upon this very point-as to the validity of a marriage with a wife's sister. One of them, that of Hill v. Good, was brought under the notice and subjected to the most careful investigation of the courts of common law, and those decisions have been acted upon from that period to the present. I shall not refer to the cases which have been already cited to your Lordships, further than just to give the names of those in which marriage with a wife's sister has been expressly declared to be incestuous and