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-- DonnaAckermann - 30 Oct 2009 | | | Puritanism required that a person’s thoughts and outward deeds serve God. Marriage was a form of outward conduct, and as marriage was a covenanted relationship, marriage itself was a way to serve God. Id. 13, 19. Because marriage was such an important institution and itself served as a way to serve God, regulating who could marry whom was a topic Massachusetts took very seriously. Despite Massachusetts being an English colony, the colonial government still had authority to pass laws regulating incestuous marriages. Lawes and Libertyes Concerning the Inhabitants of the Massachusets (1648) (hereinafter Code of 1648); Haskins 189-190. The colonial incestuous-marriage laws were heavily influenced by Biblical prohibitions and existing English law. The Bible prohibits certain relationships of affinity, although it does not prohibit cousins from marrying. Leviticus 18:6-18. In England, in response to the Reformation, the legislature passed a new law to address the appropriate degrees of relationship, given that there was no longer access to papal dispensations (which allowed people within forbidden degrees to marry anyway). Sir William Holdsworth, 4 A History of English Law 490-491 (2007). In the new act of 1540, England simplified its law to prohibit only those marriages that were forbidden by “God’s law,” as established in the Bible. See Leviticus 18:6-18; English Parliament, An Act concerning precontracts of marriage and touching degrees of consanguinity (1540). In practice, the specific prohibited degrees in England were based on an archbishop’s table created in 1563. See 1 Documentary Annals of the Reformed Church of England 316-320 (1563); R.H. Helmholz, 1 The Oxford History of the Laws of England 544 (2004). England further clarified the forbidden degrees of marriage (and carnal knowledge) in its 1650 “Act for Suppressing the Detestable Sins of Incest, Adultery, and Fornication.”
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< | While English and Biblical influence were evident in the Body of Liberties of 1641 and the Code of 1648, the two main codes of law written in Massachusetts, neither code includes a prohibition against incestuous marriages. Rather, court decisions and a statute demonstrate that incestuous marriages were prohibited in colonial Massachusetts. On May 13, 1670, the Court of Assistants, the highest court of original jurisdiction for criminal and civil matters that existed in the colony, specifically addressed whether a man might marry his wife’s sister (once his wife was dead) and held that it was unlawful for a man to do so. This decision does not appear to be based on a case, but instead appears to be the court answering a question submitted to it. John Noble, ed., 1 Records of the Court of Assistants of the Colony of the Massachusetts Bay x (Boston, 1901) (1630-1692) (hereinafter 1 Court Records); John F. Cronin, ed., 3 Records of the Court of Assistants of the Colony of the Massachusetts Bay 202 (Boston, 1928) (1630-1692). It appears that there were only two specific cases involving incestuous marriages during the relevant time period: Samuel and Rebekah Newton, and Hannah and Josiah Owen. On March 17, 1690/1, the court voided the marriage of Samuel and Rebekah Newton because Rebekah was Samuel’s late uncle’s widow. 1 Court Records 342. In 1691, in the case of Hannah Owen, the court again voided a marriage because of a relationship of affinity between the couple – Hannah had married her dead husband’s brother. Id. at 361; George Elliott Howard, 2 A History of Matrimonial Institutions 333 (University of Chicago Press 1904). In both cases, the court did not cite its own 1670 precedent but instead voided the marriages under “the Word of God & Statutes of England.” 1 Court Records 342, 361. It is likely that the court relied on English and Biblical precedent because its 1670 precedent does not address these specific relationships of affinity, as it focuses on a marriage between a man and his dead wife’s sister. Additionally, in the absence of a statute that specifically addressed this relationship of affinity, it was not uncommon for the Massachusetts court to rely on English law in deciding cases. Id. at vii.
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> | While English and Biblical influence were evident in the Body of Liberties of 1641 and the Code of 1648, the two main codes of law written in Massachusetts, neither code includes a prohibition against incestuous marriages. Rather, court decisions and a statute demonstrate that incestuous marriages were prohibited in colonial Massachusetts. On May 13, 1670, the Court of Assistants, the highest court of original jurisdiction for criminal and civil matters that existed in the colony, specifically addressed whether a man might marry his wife’s sister (once his wife was dead) and held that it was unlawful for a man to do so. This decision does not appear to be based on a case, but instead appears to be the court answering a question submitted to it. John Noble, ed., 1 Records of the Court of Assistants of the Colony of the Massachusetts Bay x (Boston, 1901) (1630-1692) (hereinafter 1 Court Records); John F. Cronin, ed., 3 Records of the Court of Assistants of the Colony of the Massachusetts Bay 202 (Boston, 1928) (1630-1692). It appears that there were only two specific cases involving incestuous marriages during the relevant time period: Samuel and Rebekah Newton, and Hannah and Josiah Owen. On March 17, 1690/1, the court voided the marriage of Samuel and Rebekah Newton because Rebekah was Samuel’s late uncle’s widow. 1 Court Records 342. In 1691, in the case of Hannah Owen, the court again voided a marriage because of a relationship of affinity between the couple – Hannah had married her dead husband’s brother. Id. at 361; George Elliott Howard, 2 A History of Matrimonial Institutions 333 (University of Chicago Press 1904). In both cases, the court did not cite its own 1670 precedent but instead voided the marriages under “the Word of God & Statutes of England.” 1 Court Records 342, 361. It is likely that the court relied on English and Biblical precedent because its 1670 precedent does not address these specific relationships of affinity, as it focuses on a marriage between a man and his dead wife’s sister. Additionally, in the absence of a statute that specifically addressed this relationship of affinity, it was not uncommon for the Massachusetts court to rely on English law in deciding cases. Id. at vii.
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| | | In addition to the court records discussed above, under authority of the new 1691 charter, the Great and General Court or Assembly of Massachusetts passed “An Act to prevent Incestuous Marriages” on May 29, 1695, which became the official law of the colony. Order of their Excellencies the Lord Justices in Council, confirming several Acts and Laws of the Province of the Massachusetts Bay, at 3, November 24, 1698. The act prohibited the exact same relationships of affinity as English law provided for in its 1563 table, illustrating English law’s influence on the colony. While the act specifically forbade a man from marrying his brother's wife or his wife's sister, it did not prohibit marriages between first cousins. | | | a. Incestuous Marriages | |
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< | As discussed, the colonial government regulated incestuous marriages, and the church influenced those regulations because of the role Puritan beliefs played in society. Perhaps because incest was not included in either of the written codes and there was no valid incest statute until 1695, there seemed to be some question as to whether incest was prohibited, and if it was, what relationships were forbidden. Ministers and devout Puritans therefore addressed incestuous marriages and supported the colonial government’s view that marriages based on relationships of affinity were unlawful, heavily relying on Biblical prohibitions and English law. See Increase Mather, The Answer of Several Ministers in and near Boston, to that Case of Conscience, Whether it is Lawful For a Man to Marry his Wives Own Sister? (hereinafter I. Mather’s Answer).; Cotton Mather, 2 Magnalia Christi Americana 252 (Silas Andrus & Son, 1853) (1620-1698) (hereinafter C. Mather, Marriage); Samuel Sewall, 7 DIARY 398 (Massachusetts Historical Society, fifth series, 1882) (1714-1729). | >
> | As discussed, the colonial government regulated incestuous marriages, and the church influenced those regulations because of the role Puritan beliefs played in society. Perhaps because incest was not included in either of the written codes and there was no valid incest statute until 1695, there seemed to be some question as to whether incest was prohibited, and if it was, what relationships were forbidden. Ministers and devout Puritans therefore addressed incestuous marriages and supported the colonial government’s view that marriages based on relationships of affinity were unlawful, heavily relying on Biblical prohibitions and English law. See Increase Mather, The Answer of Several Ministers in and near Boston, to that Case of Conscience, Whether it is Lawful For a Man to Marry his Wives Own Sister? (hereinafter I. Mather’s Answer).; Cotton Mather, 2 Magnalia Christi Americana 252 (Silas Andrus & Son, 1853) (1620-1698) (hereinafter C. Mather, Marriage); Samuel Sewall, 7 Diary 398 (Massachusetts Historical Society, fifth series, 1882) (1714-1729). | | | The most common relationship of affinity at issue was that between a man and his deceased wife’s sister. In response to the actual question of whether it was lawful for a man to marry his wife’s own sister, Increase Mather, a well-known minister, was adamant in his position that it is unlawful for such marriages to take place because they were “utterly Unlawful, Incestuous, and an Hainous [sic] Sin in the Sight of God.” I. Mather’s Answer 4. Other relationships of affinity that the Puritan church also viewed as unlawful included a marriage between a woman and her dead husband’s brother. See Samuel Sewall, 1 Letter Book 408 (Massachusetts Historical Society, sixth series, 1886) (1686-1712) (hereinafter 1 Sewall Letter Book). |
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