II. These things being premised, we proceed to a brief discussion of some of those points relating to marriage which may be reasonably made the subjects of legisla- tion without violating the feelings of Christians or op- posing the authority of the Scriptures.
1. The State may decide who shall be capable of con- tracting marriage. Thus («) the age at which, or the state of the wiU or reason with which a matrimonial en- gagement may be legally made, is as much within the control of the law as the similar conditions necessary for making business contracts or for exercising political rights. If minors are allov.'ed to enter into this condi- tion, the law ought to provide that their free consent is ascertained beforehand. Thus, too, incapacity to give consent, by reason of immaturity, force on the will, in- sanity, idiocy, and the like, may be obstacles. But (J) far more important is the control of state-law over the de- grees of relationship and affinity which shall incapaci- tate parties from entering into this close connection. Here we find that, although the chililrcn of the first pair must have united in wedlock, it became the vcrj- de- cided feeling of a large part of the human race that such a union is unlawful for brothers with sisters, or for a jiarcnt with a child. H. W. J. Thiersch {Das Vei-hot der Khe [Ntirdlingen, 1869], p. 4) remarks that wild heathen tribes in Asia and Africa consider incest a crime. Exceptions to this occurred in Persia and Egypt, where incest was practiced within the reigning families — in the latter country after the example of Isis and Osiris. At Athens a brother might marry a sister who had not the same mother, and adoption was no obstacle to the union of an adopted brother and sister. The Romans were more strict, but allowed this relation to commence between an adopted brother and his adopted sister, after the adoption was dissolved by emancipation. By Ko-
MARRIAGE
TQl
MARRIAGE
man law a man could not marry his sisfn''s daughter, 1 but when the emperor Claudius took Agrippina, his brother's daughter, to wife, that relation became permis- sible (see Gaii Instil, i, § Gl, G2). By Levitical law the prohibited degrees embraced tlie direct relatives in the ascending and descending line, whether of full or of half blood, the children who had tlie same parents or parent, the brothers or sisters of fathers or mothers, brothers' wives, daughters-in-law, a woman and her daughter, or other descendant in the third generation, and the sister of a wife during her lifetime. It would seem that in Lev. xviii, where these rules are given, the analogy de- rived from relations there mentioned may be applied to others equally close, of which nothing is said (comp. SaalschUtz, Mos.Recht, cap. 105, § 5). In the Christian Church a stricter system of prohibited degrees v^as a )5art of canonical law, and a sign of the new feeling was that the emperor Theodosius I forbade by law the mar- riage of first cousins, which was formerly by Roman law permitted. The Roman Catholic and the Greek church- es went far beyond this. The Latin Church carried the prohibition of marriage to the seventh degree, that is, to the sixth cousins — counting brothers and sisters as of the first degree, and first cousins as of the second — until Innocent III, in 1216, gave a new rule, that the"prohi- bitio copula3 conjugalis quartum consanguinitatis et af- finitatis gradum non excedat" — that is, third cousins might marry; but a little while after Gregory IX so modified Innocent's rule that a marriage between a third and a fourth cousin was allowable. Where pressing rea- sons demanded, these rules might be suspended. More severe and worthless were the rules prohibiting mar- riage, on the ground of affinity, which reached to the same degrees with the rules affecting blood-relatives, and were altered together with them. Other restric- tions touching spiritual affinities, betrothal, etc., were mitigated by the Council of Trent. According to the canons of the Greek Church, a man may not marry —
His second coushi's daughter.
His deceased wife's first cousin.
His deceased wife's flrst cousin's daughter.
His deceased wife's second cousin.
Two brothers may not marry —
Two sisters.
An aunt and a niece.
Two first cousins.
A man may not marry —
His wife's brother's wife's sister, i. e. his brother-in- law's sister-in-law.
His brother-in-law's wife: nor can his own brother marry her.
Godparentafje and Adoption constitute impediments to marriage up to the seventh degree. See Affinity. What was the feeling lying at the bottom of all these prohibitions? It must have been that which led the Ro- man lawyer Gains {!. c. § 59) to say that if such persons as parents and children marry one another nef arias atque incestas mqitias contraxisse dicuntur. Incest is the great- est unchastity, from which its Latin name comes, and men early felt this. If the children of the first parent did not partake of this sentiment, there is a parallel in the feelings of little children, whose modesty is devel- oped just at the time of life when it is needed for a moral protection. Besides this moral principle, it might be urged that to marry out of one's near relationship binds families together, and diffuses the feeling of broth- erhood through neighborhoods and tribes. This is urg- ed by Augustine {Civit. Dei, xv, cap. 10). Another con- sideration is, that the marriage of near relations pro- motes neither the health nor the multitude of offspring. In a letter imputed to Gregorj' the Great (A.D. 601), written to his missionary in England, Augustine, he is made to say, while speaking of the marriages of own cousins, " We have learned from experience that from such a marriage offspring cannot grow" (Gratian's Dec?: cans. XXXV, quffist. 5, c. 2). This is in conformity with a physical law.which governs the issue of animals. Nay,