Domestic Intimacies: Incest and the Liberal Subject in Nineteenth-Century America

Chapter 3. Law

Chapter  Law In , in response to a query concerning incestuous marriage from the London-based Marriage Law Reform Association (MLRA), Charles Mason, an Iowa Supreme Court justice, wrote, ‘‘our laws make no prohibitions what ever as to inter-marriages between kindred, nor has the crime of incest a place on our statute books.’’1 This was likely more than the MLRA was looking for when they circulated a query to jurists, theologians, and other public figures in the United States, ‘‘where law and public opinion concur in making no distinction between a marriage [with a deceased wife’s sister] and any other not prohibited in the Sacred Scriptures.’’2 Mason further suggested that laws prohibiting incest were unnecessary and potentially detrimental to the force of the prohibition. ‘‘So far as my knowledge extends, no evil consequences have resulted from these omissions of law,’’ Mason wrote. Furthermore, ‘‘our legislators seem to have acted under this belief, that the laws of nature on this subject needed no further sanction than normal feeling, fortified perhaps by public opinion; and that this sanction might rather be weakened than strengthened by superadding the penalties of the state.’’3 In Mason’s telling, the prohibition of incest was so strong that secular criminal laws would not only have been superfluous, they may have carried the unintended consequence of undercutting the more fundamental natural law that undergirded the prohibition. Mason’s assessment of both the law of incest and the prerogatives of Iowa legislators turned out to be wrong. Indeed, his mistaken account of the law in Iowa was rather perplexing: in , as chief justice of the Iowa Supreme Court, Mason authored the opinion of the court in a case of brother-sister incest.4 Nonetheless, his polemic was symptomatic of the transformation of incest law in the nineteenth century. By the middle of the nineteenth century, every state in the union had laws prohibiting incest. Law  However, in both content and justification they bore little resemblance to the biblically grounded laws of the eighteenth century. Colonial and early national laws were expansive, including both consanguineous and affinal relatives and, following from the Table of Kindred and Affinity (the codification of the Levitical prohibition by the Anglican Church in ), could include up to sixty persons. Across the nineteenth century, the religious foundation dissipated, and the list of prohibited kin was in nearly constant flux. In Mason’s Iowa, for example, the  territorial incest law made no reference to Christianity, prohibited only parent-child, stepparentstepchild , and brother-sister, and referred to ‘‘sexual intercourse’’ rather than marriage.5 Yet, in  a new law in Iowa expanded the list of prohibited kin to include grandparents and grandchildren as well as uncle-niece and aunt-nephew.6 The import of Mason’s response was in its seeming ignorance of the history of incest law in the colonies and early national period. In referring to natural law as the basis for the prohibition of incest, Mason registered the primary transformation of the incest prohibition in nineteenth-century law—its newfound, and frequently uncomfortable, secularity. The substitution of the law of nature for the law of God in the legal delimitation of incest replaced one foundational assumption with another, but the law of nature suggested the maintenance of obligations and duties in the family and encouraged the extrafamilial sociality of individuals and the use of reason. If the prohibition of incest was natural in the law it was also part of man’s understanding of the world rather than the transcendent authority of Leviticus. While other respondents acknowledged the earlier sacred logic, even if they derisively dismissed it, as Horace Mann did in calling the prohibition of marriage with a deceased wife’s sister ‘‘silly and superstitious,’’ Mason abjured that history completely.7 If eighteenth-century laws insistently referred to biblical justifications, whether Leviticus or derivative interpretations like the Table of Kindred and Affinity or canon law, by the mid-nineteenth century these references had mostly disappeared. In their place were natural law and the preservation of private, domestic accord. While incest laws varied from state to state and changed rather significantly across the nineteenth century, there were commonalities across most of the statutes. Paradoxically, the variations across states constituted one of those commonalities—shorn of a foundational text (Leviticus), statutes varied widely without seeming to deviate from a transcendent norm. In the s, legists and jurists began to present the natural law as...