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.
Well, 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
- 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. ↩
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 253, “consanguinity.” ↩
- Ibid. ↩
- Ibid., 49, “affinity.” ↩
- Ibid. ↩
- “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). ↩
- Ibid. ↩
- §§ 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). ↩
- “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). ↩
Given the current laws re same sex marriage, do all these laws need to be rewritten to exclude marriages like a woman marrying her sister and all the other variations? It depends, I suppose, on the reasons for the laws to begin with.
Whether today’s laws need to be rewritten for any reason really depends on the reasons for the laws today.
Maybe the legislators of today think that a woman marrying her sister is no problem Or if they don’t, perhaps the courts do.
Judy, I have a very old Bible that was published in “Edinborough”, Scotland, in 1692. Between the Old and New Testaments, there are no pages to record family events. However, there is a page with a pair of tables titled “A Man May Not Marry His” and “A Woman May Not Marry Her” and then the stated relationships as you have listed in this posting. However, the list is longer in the the Bible. The Bible was inherited from my paternal grandmother, the one who started me on my family history odyssey, and I was always fascinated by the book, its age, the name of the place of publication at the time, and this remarkable table.
My guess is that you’re looking at one of the versions from the Church of England (or Church of Rome) as it was originally promulgated, George, and the thou-shalt-not list was much longer as a matter of church law! What a fabulous piece of family history — and of history, period.
It is my understanding that step-sibling marriage was common in early New England (e.g. Greg and Marcia Brady get married). I wonder when that was outlawed.
New England isn’t one unified legal jurisdiction: you’d have to look at the laws of the individual colony, province or state.
Whenever this subjects come up, it should be emphasized that these laws differed from place to place and from time to time.
For instance, I read someplace that in some jurisdictions, first cousins may marry, but not double first cousins.
Israel, on THIS blog, the one thing that’s repeated — over and over and over — is the mantra that: To understand the records, we must understand the law, at the time and in the place where the records were created.