when either of them comes to the age of consent aforesaid, they may dis. agree and declare the marriage void, without any divorce or sentence in the spiritual court. This is founded on the civil law (i). But the canon law pays a greater regard to the constitution, than the age, of the parties (j); for if they are habiles ad matrimonium, it is a good marriage,whatever their age may be. And in our law it is so far a marriage, that, if a the age of consent they agree to continue together, they need not be married again (k). If the husband be of years of discretion, and the wife under twelve, when she comes to years of discretion he may disagree as well as she may for in contracts the obligation must be mutual; both must be bound, or neither (12): and so it is, vice versa, when the wife is of years of discretion, and the husband under (1). *3. Another incapacity arises from want of consent of parents [*437] or guardians (13). By the common law, if the parties themselves were of the age of consent, there wanted no other concurrence to make the marriage valid and this was agreeable to the canon law. But, by several statutes (m), penalties of 100l. are laid on every clergyman who marries a couple either without publication of banns, which may give notice to parents or guardians, or without a licence, to obtain which the consent of parents or guardians must be sworn to. And by the statute 4 and 5 Ph. and M. c. 8, whosoever marries any woman child under the age of sixteen years, without consent of parents or guardians, shall be subject to fine, or five years' imprisonment: and her estate during the husband's life shall go to and be enjoyed by the next heir (14). The civil law indeed required the consent of the parent or tutor at all ages, unless the children were emancipated, or out of the parents' power (n) and if such consent from (12) This proposition is too generally expressed; for there are various contracts between a person of full age and a minor, in which the former is bound and the latter is not. The authorities seem decisive that it is true with regard to the contract of marriage referred to the ages of fourteen and twelve; but it has also long been clearly settled that it is not true with regard to contracts of marriage referred to the minority under twenty one. For where there are mutual promises to marry between two persons, one of the age of twenty-one and the other under that age, the first is bound by the contract, and on the side of the minor it is voidable; or for a breach of the promise on the part of the person of full age, the minor may maintain an action and recover damages, but no action can be maintained for a similar breach of the contract on the side of the minor. Holt v. Ward Clarencieux, Str. 937. S. C. Fitzg. 175, 275.* (13) In New-York, if either of the parties to a marriage is incapable, for want of age or understanding, or from physical causes, or if the consent of either was obtained by force or fraud, the marriage becomes void from the time that it is declared to be so by a competent court. 2 R. S. 139. VOL. I (m) 6 and 7 Will. III. c. 6. 7 and 8 W. III. c. 35. 10 Ann. c. 19. (n) Ff. 23, 2, 2, and 18. The consent of parents is not made requisite, except that to marry a female under 14 without consent of parents, &c. is punishable by fine and imprisonment; see 2 R. S. 664. § 26. The age of legal consent is with males 14, and females 12, according to the common law, which was restored by the act of April 20, 1830, § 24. A marriage entered into under these ages may be dissolved only on the application of the party under age, or of his or her guardian, and not then if the parties have freely cohabited after attaining the age of legal consent. Children of persons who ignorantly married during the lifetime of a former husband or wife of one of the parties, are entitled to succeed to the estate of the parent who was com petent to contract matrimony. So children of a marriage declared void on account of the lunacy of one of the parties succeed to the estate of the other parent. If a marriage be annulled on the ground of force or fraud, the innocent party has the custody of the issue. (14) The construction of the statute seems to be, that it shall also go to the next heir dur ing the life of the wife, even after the death of the husband. 1 Brown. Cha. Rep. 23. But the contrary has been decided in the exche quer. Amb. 73. But see p. 437, n. (17), post. the father was wanting, the marriage was null, and the children illegitimate (o); but the consent of the mother or guardians, if unreasonably withheld, might be redressed and supplied by the judge, or the president of the province (p): and if the father was non compos, a similar remedy was given (q). These provisions are adopted and imitated by the French and Hollanders, with this difference that in France the sons cannot marry without consent of parenst till thirty years of age, nor the daughters till twenty-five (r) (15); and in Holland, the sons are at their own disposal at twenty-five, and the daughters at twenty (s) (16). Thus hath stood, and thus at present stands, the law in other neighbouring countries. And it has lately been thought proper to introduce somewhat of the same policy into our laws, by statute 26 Geo. II. c. 33 (17), whereby it is enacted, that all marriages celebrated by licence (for banns suppose notice) [*438] where either of the parties is under twenty-one, (not being *a widow or widower, who are supposed emancipated,) without the consent of the father (18), or, if he be not living, of the mother or guardians, shall be absolutely void (19). A like provision is made as in the civil law, where the mother or guardian is non compos, beyond sea, or unreasonably froward, to dispense with such consent at the discretion of the lord chancellor: but no provision is made, in case the father should labour under any mental or other incapacity (20). Much may be, and much has (0) Ff. 1, 5, 11. (p) Cod. 5, 4, 1, and 20. (q) Inst. 1, 10, 1. (15) This is now altered to 25 in sons and 21 in daughters, and the consent of the father suffices. After those ages the parties may marry after three respectful, but ineffectual, endeavours to obtain consent of parents. Code Civil. Livre 1. Title 5. (16) But even in Holland, and of course in countries subjected to the Dutch civil law, the marriage of sons after twenty-five, and daughters after twenty, years of age, without consent of parents, may, upon causes enumerated in the books, be prevented. (17) This act is repealed by the 4 Geo. IV. c. 76. but the 16th section re-enacts the like provisions, viz. "that the father, if living, of a party under 21 years of age, such party not being a widower or widow; or if the father be dead, the guardian of the person so under age lawfully appointed; or in case of no guardian, then the mother of such party, if unmarried; or if there be no mother unmarried, then the guardian of the person appointed by the court of chancery, if any shall have authority to give consent to the marriage, and such consent is thereby required for the marriage, unless there be no person authorized to give such consent." It has been held that all marriages, whether of legitimate or illegitimate children, are with in the general provisions of the marriage act, 26 Geo. II. c. 33, which requires all marriages to be by banns or licence; and, by three judges, a marriage of an illegitimate minor, had by licence with the consent of her mother, is void by the 11th section. The words father and mother in that section meaning legitimate parents. Priestly v. Hughes, 11 East, 1. In the case of Horner v. Liddiard, reported by Dr. (r) Domat, of Dowries, ◊ 2, Montesq. Sp. L. 23, 7. (8) Vinnius in Inst. l. 1, t. 10 Croke, it was decided by Sir William Scott, that bastards were bound by the 11th section of 26 Geo. II. c. 33. It follows that a marriage by licence, with the consent of either the putative father or mother, will not be a compliance with the marriage act, and therefore void; and the only methods by which the marriage of a natural child can be legally solemnized, are either after the publication of banns, or after the appointment of a guardian for the child by the court of chancery, and then the marriage may be performed under a li cence with the consent of such guardian. 1 Roper, 340. (18) The court presumes consent, unless dissent be proved, 2 Phil. 222; what sufficient evidence of consent, 1 Phil. 299. (19) Mr. Christian has the following note:A matter of such importance deserves to be more particularly stated; the party under age marrying by licence, if a minor, and not having been married before, must have the consent of a father, if living; if he be dead, of a guardian of his person lawfully appointed; if there be no such guardian, then of the mother if she is unmarried; if there be no mother unmarried, then of a guardian appointed by the court of chancery. Mr. Christian suggests that the words lawfully appointed comprehend not only a guardian appointed by the father, and a guardian appointed by the court of chancery, but also, where such guardian can exist, socage guardian, he being a guardian of the person of the ward appointed by the law itself. A guardian appointed by the will of a putative father is not within the act. 2 Bro. C. C. 583. Horner v. Liddiard, Dr. Croke's Rep. 180. (20) But a provision for this will be found been, said both for and against this innovation upon our ancient laws and constitution. On the one hand, it prevents the clandestine marriages of minors, which are often a terrible inconvenience to those private families wherein they happen. On the other hand, restraints upon marriages, especially among the lower class, are evidently detrimental to the public, by hindering the increase of the people; and to religion and morality, by encouraging licentiousness and debauchery among the single of both sexes; and thereby destroying one end of society and government, which is concubitu prohibibere vago. And of this last inconvenience the Roman laws were so sensible, that at the same time that they forbad marriage without the consent of parents or guardians, they were less rigorous upon that very account with regard to other restraints: for, if a parent did not provide a husband for his daughter, by the time she arrived at the age of twenty-five, and she afterwards made a slip in her conduct, he was not allowed to disinherit her upon that account; "quia non sua culpa, sed parentum, id commisisse cognoscitur (t) (21).” 4. A fourth incapacity is want of reason; without a competent share of which, as no other, so neither can the matrimonial contract, be valid (u). It was formerly adjudged, that the issue of an idiot was legitimate, and consequently that his marriage was valid. A strange determination! since consent is absolutely requisite to matrimony, and neither idiots nor lunatics. are capable of consenting to any thing. And therefore the civil law judged much more sensibly when it made such deprivations of reason a previous impediment; "though not a cause of divorce, ["439] if they happened after marriage (v). And modern resolutions have adhered to the reason of the civil law, by determining (w) that the marriage of a lunatic, not being in a lucid interval, was absolutely void. But as it might be difficult to prove the exact state of the party's mind at the actual celebration of the nuptials, upon this account, concurring with some private family (x) reasons, the statute 15 Geo. II. c. 30 (22), has provided that the marriage of lunatics and persons under phrenzies, if found lunatics under a commission, or committed to the care of trustees by any act of parliament, before they are declared of sound mind by the lord chancellor or the majority of such trustees, shall be totally void (23). (t) Nov. 115, ◊ 11. () 1 Roll. Abr. 357. (v) Ff. 23, tit. 1, 1, 8, and tit. 2, l. 16. in the 4 Geo. IV. c. 76. sec. 17, by which it is enacted, that in case the father of the party under age be non compos mentis, or the guardian or mother, or any of them whose consent is made necessary, in the 16th section mentioned, to the marriage of such party, be non compos mentis, or in parts beyond the seas, or shall unreasonably, or from undue motives, withhold consent to a proper marriage, then the party may apply by petition to the lord chancellor, lord keeper, or the lords commissioners of the great seal of Great Britain for the time being, master of the rolls, or vicechancellor of England; and if it appear proper, hey shall declare the same to be so, and such declaration shall be taken to be as effectual as if the father, guardian or guardians, or mother of the person so petitioning, has consented to such marriage. (21) The commentator's profound observa (w) Morrison's case, coram Delegat. tion as to this effect of those restraints put upon marriage, has been, and is, amply confirmed; but stat. 3 G. IV. c. 75, imposed still greater restraints, and the immediate consequence was, a very general disregard indeed of the marriage rite altogether. Within a year the act was given up, and the present statute substituted, leaving publication by banns near ly upon the former footing. (22) Extended to Ireland, by 51 G. III.: 37. (23) Till the 2 and 3 Edw. VI. c. 21, the clergy in this country were prohibited to marry, by various laws and canons; a statute in the 31 Hen. VIII. c. 14, having even made it felony. But the legislature by 2 and 3 Edw. VI. c. 21, repealed the laws and canons which imposed that severe restriction upon the clergy, and granted them the same indulgence that the laity enjoyed. But this statute, like |