1. The great philosophical poet of antiquity, who was, however, most absurd in much of his philosophical theory, but eminently beautiful, tender, and sublime in his poetry, supposes the civilization of mankind to have been the result of marriage and family establishments.
Castaque privatae veneris connubia laeta Cognita sunt, prolemque ex se videre creatam: Tum genus humanum primum mollescere caepit.
Lucret. de Rer. Nat. lib. 6.
2. 2 Phillimore's Rep. 19. 69.
3.Ash's case, Prec. in Ch. 203. 1 Eq. Ca. Abr. 278. pl. 6. Ex parte Turing. 1 Ves. & Bea. 140. Turner v. Myers, 1 Haggard, 414.
4.Wightman v. Wightman, 4 Johns. Ch. Rep. 343.
5. Voet ad Pand. lib. 24. 2. 15. Toullier's Droit Civil Francais, tom. 1. No. 501. 504. 506. 512. Reeve's Domestic Relations 201. 207, Pothier's Trait du Contrat de Marriage, No. 307, 308. 2 Haggard, 104. 246.
6.Ferlat v. Gojon, 1 Hopkins, 478.
7. Toullier, ibid. No. 515. 521.
Pothier, ibid. No. 310. 314. 1 Phillimore, 137. 2 Haggard, 243. 1 Day's Rep. 111. Benton v. Benton.
8. Co. Litt. 33. a. 79. b.
9. 2 Str. 937.
10. Harg. Co. Litt. lib. 2. n. 45.
11. Domat, 24.
12. No. 144.
13. Cro. Eliz. 858. 1 Salk. 121.
14. Laws N.Y. 11th sess. ch. 24.
15. 1 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
16. 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.
17. Harg. Co. Litt. lib. 2. n. 48.
18. Barrington on the Statutes, p. 401.
19. No. 147.
20. Paley's Moral Philosophy, b. 3. c. 6.
21. 2 Potter's Greek Antiq. 264. Taylor's Elem. Civil Law, 340-344.
22. 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.
23. 1 Potter's Greek Antiq. 107. 2 Ibid. 267, 268, 269. Tacit. Ann. 12. sec. 4, 5, 6, 7.
24. Co. Litt. 235. a. Gibson's Cod. 412. 1 Phillimore's Rep. 201. 355.
25. 1Mitford's Hist. of Greece, vol. vii. p. 374.
26.Burgess v. Burgess, 1 Haggard, 386. Such a connection was held in equal abomination by Justinian's Code. Code 5. 8. 2.
27. Vaughan's Rep. 206. 2 Vent. 9. S. C.
28. 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.
29. 4 Johns. Ch. Rep. 343.
30. No. 161, 162.
31. Gilbert's Eq. Rep. 156.
32. Whether it be proper or lawful, in a religious or moral sense, for a man to marry his deceased wife's sister, has been discussed by American writers. Mr. N. Webster, in his Essays, published at Boston in 1790, No. 26, held the affirmative; and it is made lawful by statute in Connecticut. Dr. Livingston, in his Dissertations, published at New Brunswick in 1816, and confined exclusively to that point, maintained the negative side of the question. It is not my object to meddle with that question; but such a marriage is clearly not incestuous or invalid by our municipal law.
33. Erskine's Inst. vol. i. 89-91. McDouall's Inst. vol. i. 112. 2 Addam's Rep. 375. 1 Ibid 64.
34. The rigor of the act of Geo. II was somewhat softened by the new marriage act of 3 Geo. IV c. 75., and the provisions rendering void all marriages solemnized by license, by minors, without consent, was repealed, and marriages had by previous publication of banns were rendered valid, though there had been false names used in the publication of the banns. 1 Addam's Rep. 28. 94. 479.
35. Inst. 1. 10. Pr. Taylor's Elements of the Civil Law, 310-313.
36. Potter's Greek Antiq. vol. ii. 270, 271.
37. Heinec. Elem. Jur. Gen. lib. 1. s. 138.
38. Van Leeuwen's Cons. on the Roman Dutch Law, p. 73.
39. Pothier, Traite du Contrat de Mar. No. 321-342. Code Napoleon, No. 148--160. Toullier, Droit Civil Franc. tom, 1. 453-463.
40. Grotius, b. 2. c. 5. s. 10. Bracton, lib. 1. ch. 5. sec. 7.
41. 6 Mod. 155. 2 Salk. 137 S. C. Dalrymple v. Dalrymple, 2 Haggard, 54. La Tour v. Teesdale, 8 Taunton, 830. Fenton v. Reed, 4 Johns. Rep. 52.
42. 1 Salk. 119. 4 Burr. 2057. Doug. 171. The King v. Stockland, Burr. Sett. Cases, 509. Cunninghams v. Cunninghams, 2 Dow. 482. McAdarn v. Walker, 1 Dow. 148. Fenton v. Reed, 4 Johns. Rep. 2.
43. 1 Ersk. Inst. 91. 93. McDouall's Inst. vol. i. 112.
44. Selden's Uxor Ebraica, b. 2. c. l. 2 Potter's Greek Antiq. 279. 283. Dr. Taylor's Elem. 275. 278.
45. Droit Civil Francais, tom. 1. No. 494.
46.Milford v. Worcester, 7 Mass. Rep. 48. Ligonia v. Buxton, 2 Greenleaf, 102
47. Reeve's Domestic Relations, p. 196. 200. 290.
48. 2 Halsted, 138.
49. 2 N. Hamp. Rep. 268. 3 Marshall, 370.
50.De Conflictu Legum, sec. 8.
51. Buller's N. P. 114. 2. Haggard, 443, 444. S.C.
52.Robinson v. Bland. 2 Burr. 1077.
53. 2 Haggard, 418-433.
54. 2 Haggard, 412-416.
55. 16 Mass. Rep. 157.
56.West Cambridge v. Lexington, 1 Pickering, 506.
57. By the French civil code, No. 63.; publication of banns is to precede marriage; and by the article No. 170, if a Frenchman marries in a foreign country, the same regulation is still to be observed; and yet, according to Toullier, Droit Civil Francais, tom. 1. No. 578. and note ib. the omission to comply with the prescribed publication does not render the marriage void, whether celebrated at home or abroad. But if the marriage by a Frenchman abroad, be within the age of consent fixed by the French code, though beyond the age of consent fixed by our law, it would seem, that, the marriage would not be regarded in France as valid, though valid by the law of the place where it was celebrated. The French code, No. 170, requires the observance by Frenchmen of the ordinances of that code, though the marriage be abroad, for personal laws follow Frenchman wherever they go. Toullier, Droit Francais, tom. 1. Nos. 118. and 576.
