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Subject Area: Law
Topic: The American Revolution and Constitution

§ 185.: Consanguinity and affinity.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 185.

Consanguinity and affinity.—

In all systems of jurisprudence, beginning with the laws of Moses, marriages between persons of the nearer degrees of relationship by consanguinity have been prohibited; and in some of these cases, notably that of parent and child, the act of marriage has been declared a crime and punishable as such. The legal justification of this prohibition lies in the birth of imbecile and frail offspring, which is the constant if not invariable fruit of such marriages. The injury to be avoided by the prohibition consists not only of that which threatens the State in the increase of pauperism through the birth of persons likely to become paupers, but also the injury to the offspring. One might, if allowed a certain latitude of speech, be said to have a natural right to come into this world with normal faculties of mind and body; and the prevention of the birth of issue is justifiable, when the parties cannot transmit, at least to a reasonable degree, a mens sana in corpore sano. It can never be questioned that the marriage of very near relations has this disastrous effect, although it may be a proper subject for debate at what degree of relationship marriage would be safe. Still, granting the danger of such marriages, the determination of the degrees of relationship, within which marriage is to be prohibited, must be left to the legislative discretion; and although it is strictly a judicial question, whether consanguinity is likely to make a particular marriage disastrous or dangerous, it must be a flagrant case of arbitrary exercise of legislative power, in order to justify judicial interference. It is a general rule of constitutional construction that all doubts as to the constitutionality of a legislative act must be solved in favor of the legislature.1

In England, the relationship by affinity, i. e., by marriage, has been held to be a ground for prohibiting marriage with the relations of the deceased wife or husband, within the same degrees in which consanguinity constitutes a bar to a valid marriage.2 The reason for this prohibition is set forth in the leading case of Butler v. Gastrill,3 in this language: “It was 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 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; for what was found convenient to extinguish jealousies amongst near relations, and to govern families and educate children amongst people of the same consanguinity, would likewise have the same operation amongst those of the same affinity. And when we consider who are prohibited to marry by the Levitical law, we must not only consider the mere words of the law itself, but what, by a just and fair interpretation, may be deduced from it.” If the tests, heretofore given for determining the constitutionality of laws for the regulation of marriage be reliable, no such reasoning as this would justify the prohibition in this country. It would have to be demonstrated that marriages between persons nearly related by affinity produce imbecile or weak offspring, or will otherwise antagonize the public interests, in order that their prohibition may be constitutionally unobjectionable. But there will be very little occasion for testing the constitutionality of this law in this country. Affinity was, and probably still is, in Virginia, a ground for invalidating marriages, to the same extent as consanguinity,1 but marriages with the deceased wife’s sister, as Mr. Bishop expresses it, “in most of the States, are not only not forbidden, but deemed commendable. It would be difficult to find a person who would object to such a union, or pretend that the laws permitting it had wrought injury.”2

[1]Cooley Const. Lim. 218.

[2]1 Bishop Mar. & Div., §§ 314, 315, 316.

[3]Gilb., ch. 156, 158.

[1]Com. v. Perryman, 2 Leigh, 717; Hutchins v. Com., 2 Va. Cas. 331; Com. v. Leftwich, 5 Rand. 657; Kelly v. Scott, 5 Gratt. 479.

[2]1 Bishop Mar. & Div., § 319.