
    
      The State vs. Scion Barefoot.
    
    A nephew may lawfully marry his aunt; and if, whilst she is alive, he marry again, it is bigamy
    
      Before Richardson, J. at Richland, Fall Term, 1845.
    This was an indictment for bigamy. It was proved that some time in 1838 the prisoner was joined in marriage, by the Rev. Mr. Russel, to Zilpha Futel, the aunt, (mother’s sister,) of the prisoner. In June, 1845, he was again married to Miss Elizabeth Odum, by the Rev. Mr. Higgins. Both women were alive at the time of the trial.
    The prisoner contended that his first marriage was void by reason of the consanguinity of the parties, and that his second marriage was therefore lawful. The presiding-judge, however, instructed the Jury otherwise, and the prisoner was found guilty. He appealed, and now moved for a new trial, on the ground of error in the instructions of the presiding Judge.
    
      (S'. R. Black, for the motion,
    contended,
    1st. That ail marriages clearly within the degrees forbidden by God’s law, are in violation of the statute law now in force in South Carolina.
    2nd. That parties cannot contract in violation of express law, or the general policy of the law.
    3rd. That all contracts made in violation of public morals and the good order of society are void.
    The statute under which the prisoner is indicted is 1 J. 1, c. 11, (2 Stat. 508,) which statute is made of force in this State.
    The oifence of bigamy had become sufficiently notorious at the time of the meeting of the Council of Trent to attract the notice of that body. In its 24th session, in the decree de reformations matrimonii, a caution was introduced to the clergy against the too ready admission of vagrant strangers to the rights of marriage, and an exhortation to the magistracy to punish such bigamists with severity. In England, it was not until the reign of James the first, that bigamy, though canonically punished, was held to be a civil offence. The preamble of this statute is almost a literal translation of the decree passed at the Council of Trent before alluded to ; see Poynter on Marriage and Divorce, 141. The statute of 1 J. 1, c. 2, has been repealed in England, but remains in force as to all offences within it committed before or upon the last day of June, 1828. As to the body of the Act, it may be proper to observe that in specifying what shall constitute the of-fence, it is enacted that if any person “ do at any time after the end of the Session of this present Parliament, marry any person or persons, the former husband or wife being alive, that then every such oifence shall be felony,” &c. To constitute the offence of bigamy, it is clearly necessary that the person charged with the offence must have a husband or wife living, at the time of the second .marriage. It is nothing but a fair construction of the Act, under our judicial system, that this former husband or wife, must be one in law — one to whom the party charged was legally married. If the first marriage be shewn to be void, the party marrying a second time had no husband or wife, and was not, in contemplation of law, married but one time. In England this construction is not adopted. Here he should contend it should be.
    In contending for this construction of the statute, he was supported by high authority. Hawkins, in his Crown Law, 1 vol. ch. 43, p. Ill, speaking of the construction of this same statute, says : “ The statute, being penal, shall be construed favorably.” In the construction of this Act by Lord Hale, 1 vol. 692, first, on the body of the Act, he puts this case. “ A takes B to husband in Holland, and then in Holland takes C to husband, living B, and then B dies, and living C, she marries D; this is not marrying a second husband, the former being alive, for the marriage to C, living B, was simply void, and so he was not her husband ; but if B had been living, this had been felony to marry D in England.” This case was put in reference to marriages abroad, but the principle is applicable, and goes to shew what is important in the present defence, that though in the second marriage the ceremony is performed, and the parties live and cohabit together, yet the marriage is a mere nullity, and void as to all legal effects or penal consequences. Again, 1 Hale, 693, the second wife may be called to prove the second marriage, “for she is not so much as his wife de facto.”
    
    It seems, therefore, that the mere ceremony of marriage, if in violation of law, cannot properly be called a marriage in fact. When, therefore, it is argued that a marriage in fact is sufficient for the prosecution, it is a sufficient answer to say that there can be no marriage in fact in violation of law — it is a desecration of marriage, and not even a marriage in fact.
    In the statute under the consideration of the court, there are five exceptions. It is only material in the present case to notice two. The penalty of the Act does not extend, 1st, to any person divorced by any sentence had, or to be had, in the Ecclesiastical Court. 2nd, to any person whose marriage hath been, or shall be, declared void by sentence in the Ecclesiastical Court. Upon the exception allowing a divorce in the Ecclesiastical Courts to be a good plea, Lord Hale remarks : “ The divorce intended is not 
      a vinculo matrimonii, for then, without the aid of any proviso, either may freely marry ; but it must be intended a divorce a mensa et thoro.” 1 Hale, 694. After considering the provisions of the statute of ’32 H, VIII, ch. 2, he should return to these exceptions, and attempt to shew that the prisoner is entitled to the benefit of these exceptions, by way of defence, upon a charge of bigamy, according to the laws and judicial system now in force and adopted in this State.
    It is a rule in the construction of statutes, that “a thing which is within the intention of the makers of.the statute,, is as much within the statute as if it were within the letter.” And it is important to enquire what was the common law before the Act was passed. See Dwarris on Statutes, 691.
    Without stopping to remark on the history of Henry VIII’s reign, which the Court well understands, he would go on to remark, that at the time the Act of ’32 H. VIII was passed, the Church of Rome had greatly extended the prohibited degrees, and the main object which the Parliament had in view, was to restrain and limit the usurpa-tions of the Pope of Rome, and confine the forbidden degrees to the specifications laid down in the 18th -ch. of Leviticus.
    The statute of 32 H. VIII, eh; 38, (2 Stat. 475,) made of force in this State, declares “all persons to be lawful that be not prohibited by God’s law to marryand “that no reservation or prohibition, God’s law except, shall trouble or impeach any marriage without the Levitical degrees.” This Act is still in force in South Carolina. There is nothing in the subsequent Acts, or in the Constitution of this State, making it void. It establishes no religious form of worship. It is strictly an Act of the Legislature regulating a civil contract — that of marriage. Contracts have their force and binding efficacy in law, from the Legislature which regulates and enforces them. The same con-troling power, therefore, which regulates and inforces them, can, and often doés, annex conditions to them. By every fair construction of the Act of ’32 H. VIII, marriages contrary to God’s law, are unlawful. The degrees laid down in the 18th ch. of Leviticus, are the degrees referred to, and are made a part of the Act of ’32 H. VIII. This construction of the Act has been adopted and concurred in by' the highest authorities. Coke’s Inst, part 2, 683 ; Co. Litt. 24, 235 ; 4 Hob, 181 ; 4 Bacon Ab. 525, Tit. Marriage and Divorce, A; Shelf. 164, 166; Poynter, 39 and 40.
    If the prisoner be guilty of any thing, it is the crime of incest. If there be no law in South Carolina to punish incest, the sooner our Legislature remedies the evil, the better. The Court will not punish a man for the crime of bigamy when he is guilty of incest only.
    He would now proceed to shew that under the exceptions in the Act of 1 J. 1, ch. 2, under which the prisoner is indicted, he has a good plea. In England, 1st, a divorce in the Ecclesiastical Court, was a good plea. 2nd Any person whose marriage was declared void by a sentence in the Ecclesiastical Court, had a good plea. In England, consanguinity was, (previous to 1835,) a canonical disability, and consequently such marriages were voidable, and not absolutely void. Civil inabilities make the contract void, ab initio, because the parties are incapable of contracting; see Shelf. 154. In this State, we have no Ecclesiastical Court, which can exercise jurisdiction, and declare void marriages which, by the English Courts, are regarded as merely voidable, until sentence in the Ecclesiastical Court is obtained.
    But if a marriage take place between parties clearly within the prohibited degrees, and in violation of an express Act of our Legislature, would it not be a proper, and even a necessary, jurisdiction for our common law Courts to say that the parties are civilly disabled to marry, and if they presume to marry in violation of law, the marriage shall be void ab initio1 By the authority of the English Courts, he was sustained in contending for this construction. “Civil disabilities are, a prior marriage, want of age, idiocy, lunacy and mental incapacity, and the violation of certain provisions contained in statutes relating to marriage” Shelf. 124. It is a circumstance proper to be noticed in this place that in England the Courts of common law have at all times exercised a controlling influence over the ecclesiastical jurisdictions. By an Act of Parliament, passed 5 and 6 W. 4, ch. 54, all marriages between persons within the prohibited degrees of consanguinity and affinity, which take place after the 31st of August, 1835, are declared void ab initio, and the union meretricious, and not matrimonial. See 2 Phil. 19 ; Shelf. 154 ; particularly Poynter, 156. It was contended by the counsel for the State, that the prisoner was not entitled to the benefit of the exception in the statute, unless there had, in fact, been a divorce; and inasmuch as we had no Court which could grant a divorce, the prisoner could not avail himself of the benefit of the exception. To this he would answer, that incidentally and collaterally, our Courts' can, and actually have exercised jurisdiction which, if the question had been raised in England, would have been, properly, in the ecclesiastical jurisdiction. See the case of Jelineau vs. Jelineau, 2 Des. 50. It is the practice of our Courts of Equity, to decree a separate maintenance in all proper cases. This- is clearly an exercise of that which would be of ecclesiastical jurisdiction in England. The case of most importance is that of Sarah Young vs. James Naylor, 1 Hill Ch. 383. He was informed by the counsel who assisted in the prosecution, that before this suit was commenced in Equity, Naylor, was prosecuted for bigamy, and acquitted under the instruction, of the presiding Judge, upon the ground that the defence that Naylor was divorced in Maryland, a mensa et thoro, before the second marriage, was good. Notwithstanding this, plea, a criminal prosecution was considered as good, the suit in Equity to recover back her property from the possession of Naylor succeeded, and a decree was accordingly made in her favor.
    In that case it was argued that it was not competent for the Court to interpose its authority to give relief, for this, among other- reasons; because it involved the exercise of Ecclesiastical Jurisdiction. To this objection the Chancellor (De Saussure) replies. “The Court by its interposition does not undertake to assume Ecclesiastical Jurisdiction. It does not undertake to pronounce judicially, that the parties are lawfully married or divorced ; but it pronounces the effect of such a state of things. It decides merely incidentally and collaterally, as every Court is often bound to do. In the case of a criminal prosecution against a man, a woman may be called upon as a witness. She might be objected to, as being the wife of the prisoner, on trial, and incompetent to be a witness. The marriage might be denied. The course of the trial could not be stopped, and the criminal Judge must hear the evidence to ascertain whether she is the wife of the prisoner on trial, and decide on it too — else he could not decide on her competency or incompetency. And the same difficulty would occur in all courts of justice, if they could not decide on questions not originally within their jurisdiction.” From this decree the defendant appealed, and the Court above concurred with the Chancellor. In the case of Johnson, by his guardian, vs. Ann Kincade, 2 Iredell 475, the decree was made in accordance to the statutory provisions of North Carolina ; but Judge Ruffin, in the course of his opinion, remarks, “ It has been thought by persons eminent in the profession, that as there are no Ecclesiastical Courts, properly speaking, in this country, the Courts of Equity, from necessity, succeeded here to the jurisdiction of such questions.” The opinion of Chancellor De Saussure is fully sustained by the English Courts in the exercise of such incidental jurisdiction ; not only in such of the Ecclesiastical Courts as do not exercise jurisdiction in matrimonial questions, but in Temporal Courts also. See Poynter, 148, note d. The case of Browning vs. Rearne, 2 Phil. 69. This last case was decided in the Prerogative ' Court of Canterbury, whose authority, in strictness, is limited to the cognizance of testamentary suits, but which, in this case, decided upon the validity of a marriage “as an incidental point.” — See such an exercise of incidental jurisdiction by the Temporal Courts, Smith, by his committee, vs. Powell, Poynter, 167, note t.
    He came now to consider the question, viz : That a contract of marriage between nephew and aunt, is void — first, as being in violation of the statute which makes all marriages good, except those forbidden by God’s law; and secondly, as being against sound morals and good policy. The statute of 32 H. VIII. ch. 38, has been uniformly construed to embrace in its provisions the Levitical degrees. It is impossible for our Courts to take on themselves to say that a statute made of force in our State, and unrepealed, can be set .aside, (if constitutional,) by a decision of any Court. If there has been, or is likely to be, any real hardship in consequence of the provisions of this statute, let our Legislature act — on them rests the responsibility. Nor can any very serious consequences attend the construction he was contending for. Let our Legislature make legal and -valid any marriage which may affect the rights or happiness of parties under a mistake or misapprehension of what the law is. On the restoration of Charles the II, the irregular marriages which had taken place under Cromwell’s administration were made valid, and the rights of innocent parties guarded and secured by an Act of Parliament.
    The contract of marriage has been defined to be “a civil contract, regulated and prescribed by law, and endowed with civil consequences.” Per Sir Wm. Scott, 2 Hagg. C. R. 54. Though in the strictest sense a civil contract, and so regarded by our courts, there are characteristics peculiarly belonging to the contract of marriage, and which distinguish it from other ordinary civil contracts.
    1st. Where the solemnities of religion are superadded, which is the case in most Christian countries, it is a contract of more than ordinary solemnity, and partakes of the character of a vow.
    2d. Its permanency. — Its obligations continue while the husband and wife both live.
    3d. It cannot be dissolved, as most other contracts may be, at the will of both parties.
    4th. It is a contract formed with a view not only to the benefit of the parties immediately concerned, but to the benefit of their common offspring, and to the moral order of civil society.
    5th. The consideration is the highest known to the law.
    6th. The public is regarded as a third party to the contract, because the public “ have an interest in making so important a contract a matter of certainty.” See Shelford, 1, 2, 3, 4 and 5; 2 Des. 644, and 2 Des. 594; 2 Hagg. CL R. 54; Carolina L. j. 393.
    
      It was hardly necessary to cite authorities to shew that contracts made in violation of law or the general policy of the law, are void. He would refer the court to a few, as well to establish this principle, as to shew that the defendant may take advantage of his own wrong in such case. In the case of Collins vs. Blantern, Wils. 347, a bond was alleged to be given for compounding a prosecution for perjury. Per Lord Ch. J. Wilmot. “ This is a contract to tempt a man to transgress the law, to do that which is injurious to the community; it is void by the common law; and the reason why the common law says such contracts are void, is for the public good; you shall not stipulate for iniquity.” Holman vs. Johnson, Cowp. 341; Briggs vs. Lawrence, 3 T. R. 454; Lightfoot vs. Tenant, 1 Bos. & Pul. 551; Brisbane vs. Lestarjette, 1 Bay, 113 ; Touro vs. Cassin, 1 N. & McC. 173. In Bostick, as-signee of Wood, vs. McLarin & Borders, it was decided that “ an illegal or immoral consideration is a good defence to avoid the payment of a promissory note, though the defendant be in -pari delicto, and though the note be assigned.” Corley vs. Williams, 1 Bail. 588 — 1 McM. 225. These authorities most fully shew that contracts made in violation of law, or the policy of the law, or against good morals, have been uniformly declared void, not only by the authority of statutory provisions, but also by the principles of the common law. That parties may, even when they are wrong-doers, take advantage of their own wrong, particularly in questions connected with the subject of marriage, see Poynter’s Preface to his first edition, Law Lib. vol. xi. — Shelf. 98. A wife may stand by and see her husband married to another woman, and yet assert her rights. For impotency, either party may be complainant, though in doing so, he does take advantage of his own wrong; Shelf. 203.
    He would go one step further, and with a view of making the application more directly to the question now submitted to the court, shew most conclusively, that when the consideration of the contract is against the rules and claims of decency, or the dictates of morality, it is void in law and equity. Fonblanque, B. 1, ch. iv, sec. 4, (note y) lays down this rule — “ as to what amounts to such a degree of turpitude as will vitiate the contract, it seems, that considerations against the policy of the common law, or against the provisions of a statute, or against the policy of justice, or the rules and claims of decency, or the dictates of morality, are void in law and equity.” Marriage is entered into by a contract which, in its consequences, particularly affects the moral, social and political condition of society. It is impossible that any enlightened system of jurisprudence can regard as valid contracts which do violence to the decencies of society, and which, if permitted by law, must so often degrade and debase the people of any country where they are allowed. Unless our courts, as organized, take cognizance of such abuses, we have no other remedy. The mere technical rules of practice, established in a foreign country, should not be permitted to shut us out from the benefits of the principles of the common law, which can and should be applied in our administration of justice. Shall the common sense, and the moral sense, of our citizens be outraged, because we have not precedents and authorities in every step to support us 1 Or shall decisions which are made under a system of jurisprudence in many important points (particularly in questions of the kind before the court) totally different from our own, be permitted to work an injury to the vital principles of good order and sound morals ?
    The whole current of decisions goes conclusively to shew that marriage is a subject about which the courts have interfered to exercise a controling superintendence. The principle upon which marriage brokage bonds are declared void — conditions in restraint of marriage are set aside, í&c. (fee. and many other interferences bearing on the same subject, shew conclusively that he was only asking the Court to apply an old principle to what may be regarded a new case. See Fonblanque, B. 1, ch. iv. sec. 10 ; Spirit of Laws, B. 23, eh. 2. It is expressly laid down by Shelford, page 127, “ a marriage between an uncle and niece by blood, has been held, in England, to be incestuous, upon the ground that it is against the law of God and sound morals ; that it would tend to endless confusion, and that the sanctity of private life would be polluted, and the proper freedom of intercourse in families would be destroyed, if such practices were not discountenanced in the strongest manner.” See Burgess vs. Burgess, 1 Hagg. C. R. 386 ; Harrison vs. Burwell, Vaughan, 206 ; Grotius, B. 2, ch. 5, sec. 12, 13, 14; Story’s Conf. Laws, 104-5.
    It may not be improper further to add, that if our courts cannot declare void a marriage between an uncle and niece, by reason of the nearness of relationship, or the illegal character of the contract, could they, nevertheless, declare void a marriage between brother and sister, or father and daughter ? If they would declare void a marriage between brother and sister, by what authority would they do so ? — if, by the prohibition in the Act of 32 H. VIII, the relationship between, nephew and aunt is as clearly within the prohibition as that of brother and sister.
    If the Court take the ground that a marriage between brother and sister is clearly void, as against good morals and sound policy, co.uld such a jurisdiction be more properly and justly applied, than in declaring a marriage void between a nephew and a mother’s sister, the case now before the Court ? If the Court seek for a rule to regulate their discretion, can they find a better one than that which has received the express approbation of our Legislature, and which certainly has the sanction of divine authority? No one who has studied the laws of this country would attempt to argue that the laws laid down to govern the Jews, or any other entire portion of revelation, have been adopted as a body of laws here; If, however, the Legislature refer to and adopt a particular portion of the laws of Moses, they incorporate that particular portion, and make them a part of the laws in force in our own State; and such laws, so adopted, have all the authority of any other laws enacted by our Legislature. It is not by reason of divine authority^that such laws are to be enforced, but because the supreme temporal power, the Legislature, acting constitutionally, has declared that such marriages shall not be contracted, which are prohibited by God’s law — and because the principles of the common law will not permit contracts to be made, when they are made in violation of sound policy and good morals.
    
      
      Caldwell, Solicitor, contra.
    The question is, was tbe marriage of the defendant with his aunt void ab initio, for if it was not void the defendant is guilty. The distinction in England is between void and voidable marriages. In the latter case the husband is guilty of bigamy if he marry a second woman before the first marriage has been annulled by a competent tribunal. In this State we have no courts which can annul a marriage, or pronounce a judgment of divorce, and therefore it would, perhaps, be improper to say that any marriages are voidable in South Carolina. He cited 1 Bl. Com. 435; Shelf, on Mar. and Div. 54; Poynt. 85 ; 1 P. C. 466 ; Arch. C. P. 477; 3 Inst. 88; 1 Russ, on Cr. 192; 10 East, 287; 2 Steph. Com. 285; 1 Ecc. R. 168; Ros. Cr. Ev. 281, 286; Reeve Dom. R. 35.
   Curia, per Richardson, J.

This case depends upon the statute of 1 James 1, c. 11, 2 Stat. 508, to make it a felony to marry a second husband or wife, until the former be dead.

The commission of the felony, (bigamy,) as a fact, is not disputed. Scion Barefoot, the defendant, first intermarried, seven years ago, with Zilpha Futel, a widow. Both the parties were of lawful age, he about 22 years of age, and Zilpha much older.

In June last, while Zilpha was still living, Barefoot again intermarried with Elizabeth Odum, a single woman, also of lawful age. The ceremony and rite of marriage was administered in both instances by clergymen, the first by the Rev. John A. Russel of the reformed Methodist Church, the second by the Rev. Jacob .Higgins of the Baptist Church. Both the marriages were solemnized in Richland district in due form, and in presence of witnesses.

Thus, then, there was a second woman taken to wife, while the first wife yet lived. This second marriage of the defendant consummated the crime of bigamy, unless the defence, now to be considered, can exempt him from punishment. It turns mainly upon what is the proper construction of the Stat. 32 Henry 8, 2 Stat. 475. The defence of Barefoot consists in this. Zilpha Futel, the first wife, was his aunt, by consanguinity, that is, his mother’s sister. And although cohabitation with his mother’s sister constitutes the sin of incest, in morality and revealed religion, yet that high offence against good morals so operates as to render the first marriage utterly void, and of no effect. That is to say, makes it no more than a mere vicious cohabitation between the defendant and his aunt. Or the argument may be thus stated — as in England the Ecclesiastical Court might set aside the first marriage, this court ought to assume such a divorce, because we have no Ecclesiastical Court to enforce the statute. And thus the first marriage being merely ostensible, it is argued that the defendant intermarried lawfully with Elizabeth Odum, and she, not Zilpha, is his true wife; or assuming such a divorce, the defendant is equally guiltless of bigamy. Such is the defence.

And true it is, if the first marriage had been thus absolutely void in Jaw, as if a boy under 14 and a girl under 12 years of age had passed through the form and ceremony of marriage, such would be the inconsequential operation and effect, and the second marriage of either, when of lawful age, and to another person, would not constitute bigamy.

But the proposition, that the marriage of Barefoot to his aunt was this legal nullity, is an assumption of the very point and pivot of his whole defence. Once make such a postulate good, and he goes clear of bigamy.

But if the argument and law fail to prove that the first marriage was void, then, it is equally plain that the defendant has been properly and lawfully convicted, and he cannot escape legal punishment, by the fact that his first marriage was incestuous. Now, then, laying aside the striking inconsistency of a man offering to’ defend himself by insisting that the first marriage was intrinsically immoral and sinful, and therefore a nullity, in order to arrest the criminal consequences and. legal punishment of bigamy — laying this inconsistency aside, let us see how the laws of the country stand in relation to the marriage of a nephew with his aunt.

Is it a marriage binding by law on the husband and wife, so as to make their offspring legitimate children, and prevent their contracting a second marriage during the ' joint lives of such husband and wife ? Such is the question.

By the common law, single-men and women, being of the lawful age, that is, men of 14 and women of 12 years of age, are left free to enter into the contract of marriage at their own discretion.

“Our law,” says Blackstone, 1 Com. 432, “considers marriage in no other light than as a civil contract.” “The law treats it,” hescontinues, “as it does all other contracts, allowing it to be good and valid in ail cases where the parties at the time of making it were, in the first place, willing to contract; secondly, able to contract; and lastly, did contract, in the proper forms and solemnities required by law.”

All the common law writers on marriage lay down the same law, and in almost the same terms. See 2 Steph. Com. 279; Shelford on marriage and divorce, and Poynter on the same.

These writers are named for examples of the rest, and as jurists who have collected the cases, and digested the laws of marriage, and I know of no essential difference in those writers upon the right to marry, or of the permanence of the contract,.or of its consequence in utterly excluding a second marriage during the joint lives of the husband and wife.

But the authorities will be more particularly named, and subjoined at the end of this decision.

I need not consider the right of divorce, or the few exceptions to this general right of men and women to intermarry, and to be bound for life in vinculo matrimonii; it is a chain, so far as being bound to rational happiness at home, and regard for human order everywhere, can be so called. Its necessity and usefulness constitute its chain, continuity and durability.

Only one exception is presented, by the case before the court, namely,. does the proximity of blood between a nephew and his aunt render their marriage a nullity by our laws, so as to let in the second marriage of Barefoot to Miss Odum, and render it a legal contract of marriage 1 This would protect him from the charge of bigamy, by making him the lawful husband of Elizabeth in place of Zilpha.

I will not enter upon all the views, considerations and policy presented by the defendant’s counsel, in his earnest argument, that the law ought to hold an incestuous marriage as a mere meretricious sexual cohabitation, and utterly void as a marriage contract. And it may be well deplored that a legislative Act has not been passed to reform the common law in this respect, as has been lately done in Great Britain, and such incestuous marriages declared to be utterly null and void, if contracted after the statute.

But what is asked of this court ? It is to do more, as I apprehend, than the Legislature could do — impair the obligations of past contracts — and more than the English ■ Parliament has done, by the statute referred to ; — the court is to declare null and void a marriage' already solemnized and binding at common law. And that, too, is to be done in order to shield the guilty. It will be seen at once that any such judicial act would be retrospective, and annul past marriages, and consequently would be attended by the bastardizing of the children of such marriages, and would at the same time take from such husbands their only legitimate children.

Reflect for a moment upon such consequences, of this court’s undertaking to set aside such marriages as null and void. The father would lose all right to his only offspring, which in law can be no other than the children of his wife, and the children would equally lose their father, and become filii nullius or bastards.

Have not the unborn children, and the public too, their rights in every marriage.? Children are plainly a third party to marriages, and demand its permanency. Yet let such an Act as the English statute be passed, by all means, but let it be prospective, and relate not to past but future marriages. The marriage which the law permitted at the time of its solemnization, must not be nullified, even by the Legislature, by any ex post facto law, and still less by the decision of a court.

The immediate parties may deserve punishment, but their offspring have rights that must be protected.

I have presented this brief forecast of the consequences of a court’s undertaking to give a new construction to the 32 Henry 8th, upon the ground of the immorality and ir-religión of incestuous marriages, and because this State has no Ecclesiastical court to restrain and punish the incestuous husband and wife, pro salute animes. And I would point out the just considerations — not to say the necessity, of the established and well recognised construction so often put upon the statute by common law courts, to wit: that the statute was made to restrict divorces by the Ecclesiastical court, and confine them to marriages within the third degree of consanguity or affinity, but not to nulify any marriage otherwise than by the sentence of such Ecclesiastical court.

The statute of Henry 8, and that of James 1, are too long to be here transcribed, but they ought to be read by those who doubt. They give the proper understanding of the laws of marriage, and the very learned and able compiler of our Acts and Statutes subjoins this note to them. “In this State marriage is a civil contract of mutual partnership and personal cohabitation during life, under the provisions of the laws passed on this subject. The parties are, the man, the woman, and the State. The State is. interested that the contract shall be fulfilled beneficially for the progeny, of whom the future citizens are to be composed. The contract in South Carolina is held to be indissoluble from whatever cause but death, no divorce a vinculo ma-trimonii ever having been granted in South Carolina. Vaigneur et al. vs. Kirk, (See 2 Eq. Rep. 644, note.') Many theoretical objections of a very grave character may be made against this State doctrine, but as yet it appears to work well, and there is no ground from past experience to justify any change in the received law on the subject.” 2 Stat. 733.

The statute was passed by Henry the 8th, the first royal reformer of the Christian religion in Great Britain, for the purpose of restricting the Ecclesiastical courts that had grown up under the pontifical power, from setting aside marriages by reason of blood or affinity. If I remember aright, those courts had divorced man and wife related in the seventh degree of consanguity and fourth of affinity. At this crisis the statute interposed, and restrained such ecclesiastical divorces to the Levitical law of the old testament of the Christian bible, that is, to the third degree of consanguinity or affinity.

The statute thus restricts and limits the practice of divorcing man and wife that had crept in, but gives no new power even to those courts, and none whatever to other courts. How then can we either hold the first marriage void, or assume an ecclesiastical divorce ? What authority has this court to interpose at all 1 None whatever, but to punish the bigamy, and thus virtually reprove the incest, which can be reached by the court in no other way.

But there remains one legal view urged by the counsel, upon which he relies so much, that for general satisfaction I must notice it. _ It is this, that vicious and immoral contracts are absolutely void in their very inception. And he would apply this rule of law to vicious marriages. If he had applied it to a mere betrothment, promise, or engagement, as between aunt and nephew, to enter into such a marriage, his law would have been unanswerable. But all the law adduced, applies only to executory and not to executed contracts.

Such law is to estop and prevent the practical enforcement of such contracts. But when they become practically performed and executed, the parties are in pari delicto, in equal practical guilt. Accordingly, the law, as it could not prevent the mischief, leaves the parties as it found them. In pari delicto potior est conditio possidentis, is then the rule of law. In that case the parties, as individ-als, have tied themselves up, not by note or bond, but by acting and carrying out the contract to completion, and nothing remains but to punish them, if such actual execution of the contract amount to a crime.

This is the very position of Barefoot; he did the misdeed; the contract of marriage was not executory, but executed, and then it was no longer, as lawyers say, in posse, to be set aside, but stood in esse, and therefore irremediable and not to be sundered.

Let me take for illustration the very cases quoted by the defendant’s counsel. “A bond to compound a perjury is void,” 2 Wils. 341. So of a note given for a vicious consideration. Fonblanque, B. 1, ch. 4, sec. 10. “Marriage brokage bonds and the like, are void.” But suppose for a moment that note, or that bond, to compound perjury, or that marriage brokage bond, had been voluntarily paid, could the money have been recovered back 1 Never unless induced by fraud. The locus poenitentice would have passed away, and both parties being in pari delicto, neither could have advantage from his own misdeed and recover back the money.

It is easy then, to see the inefficiency of this colorable argument, and the total inapplicability of the cases adduced. They apply only to executory, not to executed contracts. '

Again; the counsel quoting from Shelford says, “a wife may stand by and see her husband married to another, and yet assert her rights,” (to him of course.) Then Zil-pha might have witnessed the marriage to Elizabeth, and yet even then claimed her husband Barefoot. Why 1 Because her marriage being binding at first, can in no way be set aside by a subsequent fraud. The case of impotency is quoted as one of which either party may take advantage. Assuredly, because, whatever the ceremony, there never was a practical, executed, marriage. It could only amount to a promise or betrothment, a mere executo-ry thing, but in fact, as harmless and foreign to an executed contract of marriage, as kissing an infant that the good couple, so betrothed, choose to adopt in full form and call “our baby,” would be from making them the true parents.

In a word, if I may use the expression, the ceremonial law of marriage makes up the necessary extrinsic evidence of its contract, but if on account, of impotentiam, it cannot be executed, the ceremony is vain.

Setting aside a marriage for impotency is, therefore, but shewing that there never could have been any maniage. Impotency rendered the execution impossible.

What is the meaning of the words “able to contract,” just quoted from Blackstone 1 They mean mentally and corporeally able to contract — hábiles ad matrimonium. Why may not a child, hermaphrodite, or eunuch, contract binding marriages 1 Plainly for the same reason. Such instances illustrate well what are the .kind of marriages absolutely void in law, and what is meant by the terms — * 1st. Willing to contract. 2d. Able to contract, and 3d. Actually contracting in due form, which bind such parties in marriage, notwithstanding mere canonical disabilities of consanguinity or affinity.

It is possible that I may not have justified to all understandings the common construction of the statute, but that construction has been too often recognised to be now disregarded. It is, to my own mind, the unavoidable construction, and I' would willingly overcome the earnest convictions and conscientious scruples of the counsel, who I am persuaded, labored, not so much for the rescue oí the defendant, as to shield the rite of marriage from the tarnish of incest. But in his zeal he overlooks the great end of marriage, permanency in its union, from humanity and gratitude to woman, and for justice and faith to legitimate oflspring.

I have but to add, that the authorities for this construction of the statute are as many and as uniform, and without a single counter adjudication, as those before noticed upon the common law rite of marriage. But as the precise question has not been decided in this State, and there may be deep feelings enlisted in the case, and probably general expectation — such considerations induce me to refer to the many authorities which bear upon the question made by the defendant’s appeal, and which under different circumstances might be deemed superfluous.

The authorities relied on are as follows.

As to consanguinity rendering a marriage voidable, and not ipso facto void, see 1 Bl. Com. 434-5. The impediment of. consanguinity renders the marriage voidable, not void. Poynt. on Mar. and Div. 85.

Same point — Shelf, on Mar. and Divorce, 154.

Same point — East P. C. 466.

As to an indictment for bigamy being sustainable when the first marriage was within the Levitical degrees (and therefore merely voidable,) see Archbold’s Cr. PI. 477 ; 3 Inst. 88.

Proximity of relationship, says Stephens, was till very lately a canonical and not a civil disability; 2 Steph. Com. 284.

In England, says Roscoe, (Cr. Ev. 286,) incestuous marriages are not void, but only voidable during the lives of the parties ; and if not so avoided, are to all intents valid.

A first marriage de facto, subsisting in fact at the time of the second marriage, is sufficient to bring a case within the Act (1 James 1,) though such first marriage be voidable by reason of consanguinity, affinity, or the like; for it is a marriage in judgment of law, until it is avoided ; 1 Russ, on Cr. 290.

“Though a lawful canonical marriage need not be proved, yet a marriage in fact (whether regular or not) must be shewn.” 10 East R. 287, note to the case of the King vs. The Inhabitants of Brampton.

At common law, a marriage between aunt and nephew is not void, it can only be avoided in the Ecclesiastical Court. The canonical disabilities being entirely the province of ecclesiastical law, the books of the common law are nearly silent concerning them; 2 Steph. Com. 281. See also 9 Penny Cyclop. 39, Tit. Divorce; Shelf, on Mar. and Div. 154.

“The incapacity in respect of proximity of relationship, was till very lately a canonical only and not a civil disa-ability,” 2 Steph. Com. 285.

“By the stat. 5 and 6 W. 4, c. 54, passed in 1835, all marriages thereafter celebrated between persons within the prohibited degrees of consanguinity or affinity, shall be absolutely void to all purposes whatever ; which seems to bring the objection within the cognizance of the courts of common law.” But this English statute is not of force in South Carolina.

As to canonical and civil disabilities, see Shelf, on Mar. and Div. 154. “The canonical disabilities only make the marriage voidable.”

New statute as to marriages withiu the prohibited degrees, Shelf. 155, 179. Before this Act, these marriages were only voidable, and not void. See Shelf, and 14 Penny Cyclo. 442, tit. Marriage, for the most clear and condensed account of the law relative to marriages in England before the 5 and 6 W. 4, c. 54, in 1835. See the construction of the stat. of 5 and 6 W. 4, c. 54, Shelf. 179.

Por a popular and useful summary of laws on marriages, ancient and modern, religious and civil, barbarous and civilized, see Rees’ Cyclop, art. Marriage, 23d vol.

Upon such authorities the case is too clear for doubt.

The motion for a new trial is therefore unanimously dismissed.

O’Neall, Evaws, Butler, Wardlaw and Frost, JJ. concurred.  