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Forbidden marriages

The date, according to the records, was Thursday, the 25th of April 1799.

The place: the village of Hollis, in Hillsborough County, New Hampshire.

The celebrant: one Eli Smith, a clergyman.

And the bride and groom? Well, they were Smiths, too. The groom was Samuel Smith, and his new bride Margaret Smith.1

And from that information alone, we know something about the familial relationship of Samuel and Margaret — something that could help us figure out their places in their families beyond the mere fact that they married each other.

NH1Well, of course, we know it if we go on to do what The Legal Genealogist was doing last night — poking around in New Hampshire statutes. Yep, just got home from the National Genealogical Society conference in Florida, and I’m already getting ready for the next one. Hope you’re planning to join me and the New Hampshire Society of Genealogists at its Spring Meeting in Manchester on Saturday.

Because those early New Hampshire statutes make it abundantly clear who couldn’t marry each other because they were too closely related to each other.

That “too close” business came in two flavors. You could be too closely related by blood — a concept known as consanguinity: “The connection or relation of persons descended from the same stock or common ancestor.”2

There are even two flavors of consanguinity — lineal (“that which subsists between persons of whom one is descended in a direct line from the other, as between son, father, grandfather, great-grandfather, and so upwards in the direct ascending line; or between son, grandson, great-grandson, and so downwards in the direct descending line”) — and collateral (the individuals “descend from the same stock or ancestor; but … they do not descend one from the other”). 3

Or you could be too closely related by marriage — a concept known as affinity: “Relationship by marriage between the husband and the blood relations of the wife, and between the wife and the blood relations of the husband.”4

And, under the dictionary definition, there are even three flavors of affinity: “(1) Direct, or that subsisting between the husband and his wife’s relations by blood, or between the wife and the husband’s relations by blood; (2) secondary, or that which subsists between the husband and his wife’s relations by marriage; (8) collateral, or that which subsists between the husband and the relations of his wife’s relations.”5

And New Hampshire law addressed both. It declared incestuous and criminal the marriage of any man with his father’s sister, mother’s sister, father’s widow, wife’s mother, daughter, wife’s daughter, son’s widow, sister, son’s daughter, daughter’s daughter, son’s son’s widow, daughter’s son’s widow, brother’s daughter, or sister’s daughter.6

And it criminalized and forbade the marriage of any woman with her father’s brother, mother’s brother, mother’s husband, husband’s father, son, husband’s son, daughter’s husband, brother, son’s son, daughter’s son, son’s daughter’s husband, daughter’s daughter’s husband, brother’s son or sister’s son.7

So… assuming of course that the law was followed, is it possible that Margaret was Samuel’s niece? No. She would have been his brother’s or sister’s daughter, and that would have been forbidden.

Could she have been the child of a deceased first wife? No. That would have made her his wife’s daughter, and that would have been forbidden.

Could she have been his first cousin? Yes. There is absolutely nothing in that early law that would have barred a marriage between first cousins.

Cousin marriages weren’t prohibited as late as the Revised Statutes of 1842, as revised through 1850, either.8 Even first cousins could marry legally then in New Hampshire.

But don’t try it in New Hampshire today. By statute approved 24 June 1869, taking effect six months after its passage and continuing in effect to today, a man in New Hampshire may not marry his father’s or mother’s brother’s daughter or his father’s or mother’s sister’s daughter, and a woman there may not marry her father’s or mother’s brother’s son or her father’s or mother’s sister’s son.9


SOURCES

  1. Marriage record, Samuel Smith and Margaret Smith, 25 Apr 1799, Hollis, NH; digital images of handwritten carded entries, “New Hampshire Marriage Records, 1637-1947,” FamilySearch (https://familysearch.org : accessed 8 May 2016), citing Bureau of Vital Records and Health Statistics, Concord.
  2. Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 253, “consanguinity.”
  3. Ibid.
  4. Ibid., 49, “affinity.”
  5. Ibid.
  6. “An ACT to prevent incestuous marriages and to regulate divorces,” 17 February 1791, in Constitution and Laws of the State of New-Hampshire (Dover, N.H. : Samuel Bragg Jr., State Printer, 1805), 280, 281; digital images, Google Books (http://books.google.com : accessed 8 May 2016).
  7. Ibid.
  8. §§ 1-2, Chapter 147, Marriage, in The Revised Statutes of the State of New Hampshire … to June, 1850 (Concord, N.H. : John F. Brown, 1851), 291; digital images, Google Books (http://books.google.com : accessed 8 May 2016).
  9. “An Act in Addition to Sections One and Two of Chapter One Hundred and Eleven of the General Statutes, Relating to Marriages,” 24 June 1869, in The Laws of the State of New Hampshire… 1867 (Manchester, N.H. : John B. Clarke, State Printer, 1867), I: 274; digital images, Google Books (http://books.google.com : accessed 8 May 2016).
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