
    Anderson Bowers and others vs. Nathaniel Bowers and others.
    
      Marriage — Husband and Wife — Uncle and Niece.
    
    A marriage between uncle and niece is, at least, so far valid, that the wife may, after the death of the husband, claim her distributive share of his estate. Marriage, in this State, is a merely civil contract; and as such is, it seems, unaffected by the canonical incapacity arising from proximity of blood.
    No Court, in this State, has the power, by direct proceeding for that purpose, to declare a marriage void; but any Court has the power, where the question comes up incidentally, to determine* the validity of a marriage.
    BEFORE DUNKIN, OH., AT LANCASTER,
    JUNE, 1857.
    Edward Bowers died in the month of December in the year 1835, intestate. Shortly before his death a marriage ceremony was celebrated, in the town of Camden, between him and Elizabeth Jemima Graham, his niece, a brother’s daughter.
    In the bill filed in this case, by certain of his children, by a former marriage, for partition of a considerable estate left by him, the ground was taken, that this marriage between him and his niece was illegal and void, by reason of their too close relationship, and that the latter was entitled to no part of his estate.
    The circuit decree is as follows :
    Dunkin, Ch. Upon hearing the bill, and answers, and the argument of counsel; It is ordered, on motion of J. B. Ker-shaw, defendants’ solicitor, that the report of the Commissioner on the accounts of Anderson Bowers, administrator, the advancements to the children of the intestate, Edward Bowers, and the settlement upon Jemima Turner be confirmed with the recommendations of the Commissioner.
    Also ordered, that the administrator do pay out of the corpus of the estate in his hands the costs of this suit, and that he do pay over to the defendant, Elizabeth Jemima Robertson, late Bowers, one-third of the balance of the estate in his hands as administrator.
    Also ordered, 'that the said administrator do pay over to the parties entitled, reserving the share of Jemima Turner, the remaining two-thirds of the balance of the estate in his hands, after payment of costs, first deducting therefrom such reasonable /counsel fee as he may have paid his counsel for his services in this case.
    It is also ordered, that the Commissioner do proceed to collect the securities in his hands, given for the purchase of the real estate of Edward Bowers, deceased, when they shall have become due, and pay over the same, one-third to the said Elizabeth Jemima Robertson, late Bowers, and the remaining two-thirds to the children of the said Edward Bowers, deceased, except the share of Jemima Turner, which he shall retain until the further order of the Court.
    The plaintiffs appealed on the ground :
    Because the said Elizabeth Jemima, being a brother’s daughter, was not the lawful wifé of the said Edward Bowers, deceased, and at his death became entitled to no part of his estate.
    Moore, for appellants.
    1. The Canon Law, relating to marriage, forms a part of the Common Law. (l Bl. Corn. Ch. Ed. 79.) Poynter on Mar. and Div. (Law Lib.) p. 56.
    2. A marriage between uncle and niece, by the Canon La\v, is void ab initio. Leviticus Ch. 18, v. 12, 13, 14. Poynter on Mar. and Div. (Law Lib.) p. 34. Canon 99th in appendix to do. No. 2, p. 120. Shelford on Mar. and Div. (Law Lib.) p. 127.
    3. The Canon Law relating to marriage expressly recognized as the law in this State, by the adoption of the Statute 32, Henry 8 Ch. 38. 2 Stat. 475.
    4. The Ecclesiastical Courts in England, were primarily, to be called on to decide questions touching the validity of marriages, and in such cases invariably decided a marriage prohibited by the Canon and Levitical Laws to be void — to be a nullity; the Courts of Law and Equity, in this State, occupy the same position, in regard to such questions, in that they are the Courts primarily to be called on to decide them, and are therefore bound to decide a marriage prohibited by the Canon and Levitical Law to be null and void whenever the question is legitimately raised before them.
    5. A marriage prohibited by the Canon Law was regarded by the Temporal Courts, in England, as merely voidable and not absolutely void unless. sentence of nullity had been actualty declared in the lifetime of the parties, but the distinction between a void and avoidable marriage was founded upon, merely a rule of practice, by which these Courts insisted upon having laid before them as indispensable evidence of the latter being void, the sentence of an Ecclesiastical Court pronounced in the lifetime of the parties declaring it to be so; the principle of law being that it was void and the rule of practice requiring the adduction of the sentence, in evidence only, but as conclusive evidence in proof that it was void. Shelford on Mar. and Div. (Law Lib.) p. 276,266, 267, 269.
   The opinion of the Court was delivered by

Dunkin, Ch.

It is not questioned that the circuit decree of the Court of Equity is in conformity with the unanimous judgment of the Law Court of Appeals in The State vs. Barefoot, 2 Rich. 209. Barefoot was indicted for bigamy, and the conviction was sustained upon the determination of the Court, that the marriage of the defendant, with his aunt, was valid, by the laws of South Carolina. The avowed object of the appeal is to obtain the review and reversal of that judgment.

Marriage in the State of South Carolina, has always been regarded as a merely civil contract. For any civil disability it may be treated as void by any judicial tribunal of the State. But the Court of Equity has no more authority over the subject than a Court of Law, and any attempt to exercise any greater or more extensive authority would be a simple act of usurpation. In Mattison vs. Mattison, 1 Strob. Eq. 387, it was determined unanimously by the Court of Errors that in a suit between the parties to the marriage seeking to have the same declared void, the Court of Equity had no jurisdiction. But in a suit between third persons, arising in the Court of Law, the validity of the same marriage, impeached on account of an alleged civil disability, was fully examined, discussed and determined. The same power is familiarly exercised by the Court of Equity, as is illustrated by the case of Foster vs. Means, Speer Eq. 569. All these inquiries relate, however, to some civil disability or other infirmity of that character in the alleged contract. But the incapacity in respect of proximity of relationship is a canonical, and not a civil, disability. Neither the Court of Chancery in England, nor any of the Law Courts had cognizance of canonical disabilities. When Parliament thought proper to interfere, and, by the Stat. 5 and 6, Will. iv, c. 54, declared that all marriages, thereafter celebrated between persons within the prohibited degrees of consanguinity or affinity, should be absolutely void, then the objection came within the cognizance df the Courts of Common Law. 2 Steph. Com. 284. So when the Legislature of South Carolina shall have prescribed within what degrees of relationship marriages shall be invalid, the law will be understood by the citizen, and enforced by the Courts. But by this appeal the Court is invoked to recognize a principle which would not only declare void a marriage between uncle and niece, and of course bastardize their issue, but a marriage between a man and his wife’s sister falls within the same category, ánd, if the canonical mode of computation of the Levitical degrees be adopted, a marriage between first cousins is equally prohibited. See note to 2 Steph. 284. On the other hand, extreme cases of unnatural alliances may be supposed at which the moral sense would be offended, but hitherto public sentiment, if not private morality, has repressed all such evils. It is far better to leave to the Legislature the appropriate duty of defining and prohibiting such evils rather than arm the Court of Chancery with ecclesiastical powers on a subject of great delicacy and pervading interest.

But the proposition of the appellants could not be successfully maintained in any Court of Great Britain, ecclesiastical, or civil. Marriages within the Levitical degrees are not void, but only voidable. And, even in Doctors’ Commons, you are not permitted to violate the sanctity of the tomb, and impeach for alleged canonical disability the validity of a nuptial contract which death has already dissolved. “Not only” (says a learned commentator) “are marriages, under these circumstances of disability, esteemed valid, until there be actual sentence of separation, but they are permanently valid, unless such sentence be given during the life of the parties. (For, after the death of either of them, the Courts of Common Law will not suffer the spiritual courts to declare such marriages to have been void.”) 2 Steph. Com. 280. Bury's case 5, Rep. 98.

In the temporal Courts such marriages are held valid for all civil purposes unless sentence of nullity be obtained in the lifetime of the parties. Shelf. Mar. and Div. 482. A marriage within the prohibited degrees, not avoided during the lifetime of both parties, confers the civil rights of marriage, such as the right of dower — right of administration, &c. Shelf, p. 179. And the author refers to Co. Litt. 33 b., where it is said “that if a marriage be voidable in respect of consanguinity, affinity, &c., whereby the marriage might have been dissolved, yet if the husband die before any divorce, then for that it cannot now be avoided; this wife, de facto shall be endowed, for this is legitimum matrimonium quoad dotem.”

So, in this case, it appeared that Edward Bowers, the husband, was dead, and the circuit decree properly adjudged to his widow, Elizabeth Jemima, one-third of his estate under the statute of distributions.

It is ordered and decreed that the appeal be dismissed.

O’Neall, Waedlaw, Glover and Munro, JJ., concurred.

Appeal dismissed.  