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CHAPTER THE FIFTEENTH.

OF HUSBAND AND WIFE.

THE

HE fecond private relation of perfons is that of marriage, which includes the reciprocal right and duties of husband and wife; or, as most of 'our elder law books call them, of baron and feme. In the confideration of which I fhall in the first place inquire, how marriages may be contracted or made; fhall next point out the manner in which they may be diffolved; and fhall, laftly, take a view of the legal effects and confequence of marriage.

1. Our law confiders marriage in no other light than as a civil contract. The holiness of the matrimonial ftate is left entirely to the matrimonial law: the temporal courts not having jurifdiction to confider unlawful marriages as a fin, but merely as a civil inconvenience. The punishment therefore, or annulling, of inceftuous or other unfcriptural marriages, is the province of the fpiritual courts; which act pro falute anima. And, taking it in this civil light, the law treats it as it does all other contracts: allowing it to be good and valid in all cafes, where the parties at the time of making it were, in the firft place, willing to contract; fecondly, able to contract; and,

Salk. 121.

laftly, actually did contract, in the proper forms and folemnities required by law. "Con

Firft, they must be willing to contract. "fenfus non concubitus, faciat nuptias," is the maxim of the civil law in this cafe: and it is adopted by the common lawyers 3, who indeed have borrowed (efpecially in ancient times) almoft all their notions of the legitimacy of marriage from the canon and civil laws.

Secondly, they must be able to contract. In general, all perfons are able to contract themfelves in marriage, unless they labour under fome particular difabilities, and incapacities. What thofe are, it will be here our bufinefs to inquire.

Now these disabilities are of two forts: firft, fuch as are canonical, and therefore fufficient by the ecclefiaftical laws to avoid the marriage in the fpiritual court; but these in our law only make the marriage voidable, and not ipfo facto void, until fentence of nullity be obtained. Of this nature are pre-contract; confanguinity, or relation by blood; and affinity, or relation by marriage; and fome particular corporal infirmities. And these canonical disabilities are either grounded upon the exprefs words of the divine law, or are confequences plainly deducible from thence: it therefore being finful in the perfons who labour under them, to attempt to contract matrimony together, they are properly the object of the ecclefiaftical magiftrate's coercion; in order to feparate the offenders, and inflict penance for the offence, pro falute animarum. But fuch marriages not being void ab initio, but voidable only by fentence of feparation, they are esteemed valid to all civil purposes, unless fuch feparation is actually made during the life of the parties. For, after the death of either of them, the courts of common law will not fuffer the spiritual court to declare fuch marriages to have been void; becaufe fuch declaration cannot now tend to the reformation of the parties. And therefore when a man had

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married his first wife's fifter, and after her death the bishop's court was proceeding to annul the marriage and baftardize the iffue, the court of king's bench granted a prohibition quoad hoc; but permitted them to proceed to punish the husband for inceft. Thefe canonical difabilities being entirely the province of the ecclefiaftical courts, our books are perfectly filent concerning them. But there are a few ftatutes, which ferve as directories to those courts, of which it will be proper to take notice. By ftatute 32 Hen. VIII. c. 38. it is declared, that all perfons may lawfully marry, but fuch as are prohibited by God's law; and that all marriages contracted by lawful perfons in the face of the church, and confummate with bodily knowledge, and fruit of children, fhall be indiffoluble. And (becaufe in the times of popery a great variety of degrees of kindred were made impediments to marriage, which impediments might however be bought off for money) it is declared by · the fame ftatute, that nothing (God's law except), fhall impeach any marriage, but within the Levitical degrees; the fartheft of which is that between uncle and niece. By the fame ftatute all impediments,, arifing from pre-contracts to other perfons, were abolished and declared of none effect, unless they had been confummated with bodily knowledge: in which the canon law holds fuch contract to be a marriage de facto. But this branch of the ftatute was repealed by ftatute 2 & 3 Edw. VI. c. 23. How far the act of 26 Geo. II. c. 33. (which prohibits all fuits in ecclefiaftical courts to compel a marriage, in confequence of any contract) may collaterally extend to revive this claufe of Henry VIII's ftatute, and abolish the impediment of pre-contract, I leave to be confidered by the canonifts.

The other fort of difabilities are thofe which are created, or at leaft enforced, by the municipal laws. And, though fome of them may be grounded on natural law, yet they are regarded by the laws of the land, not fo much in the light of any moral offence,

5 Salk. 548.

6 Gilb. Rep. 158.

as on account of the civil inconveniences they draw after them. Thefe civil disabilities make the contract void ab initio, and not merely voidable; not that they diffolve a contract already formed, but they render the parties incapable of forming any contract at all: they do not put asunder thofe who are joined together, but they previously hinder the junction. And, if any perfons under thefe legal incapactiies come together, it is a meretricious, and not a matrimonial, union.

1. The firft of thefe legal difabilities is a prior marriage, or having another husband or wife living; in which cafe, befides the penalties confequent upon it as a felony, the fecond marriage is to all intents and purposes void: polygamy being condemned both by the law of the new teftament, and the policy of all prudent ftates, efpecially in these northern climates. And Juftinian, even in the climate of modern Turkey, is exprefs, that " duas uxores eodem tempore habere non licet.”

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2. The next legal disability is want of age. This is fufficient to avoid all other contracts, on account of the imbecility of judgment in the parties contracting; a fortiori therefore it ought to avoid this, the moft important contract of any. Therefore if a boy under fourteen, or a girl under twelve years of age, marries, this marriage is only inchoate and imperfect; and, when either of them comes to the age of confent aforefaid, they may disagree and declare the marriage void, without any divorce or fentence in the fpiritual court. This is founded on the civil law. But the canon law pays a greater regard to the conftitution, than the age, of the parties; for if they are habiles ad matrimonium, it is a good marriage, whatever their age may be. And in our law it is fo far a marriage, that, if at the age of confent they agree to continue together, they need not be married again. If the hufband be of years of difcretion, and the wife under

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twelve, when fhe comes to years of difcretion he may disagree as well as fhe may: for in contracts the obligation must be mutual; both must be bound, or neither and fo it is, vice verfa, when the wife is of years of difcretion, and the husband under*.

3. Another incapacity arifes from want of confent of parents or guardians. By the common law, if the parties themselves were of the age of confent, there wanted no other concurrence to make the marriage valid: and this was agreeable to the canon law. But, by feveral ftatutes 3, 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 confent of parents or guardians muft be fworn to. And by the ftatute 4 & 5 Ph. and M. c. 8. whofoever marries any woman child under the age of fixteen years, without confent of parents or guardians, fhall be fubject to fine, or five years imprifonment: and her eftate during the hufband's life fhall go to and be enjoyed by the next heir. The civil law indeed required the confent of the parent or tutor at all ages; unless the children were emancipated, or out of the parents power: and if fuch confent from the father was wanting, the marriage was null, and the children illegitimate; but the confent of the mother or guardians, if unreafonably withheld, might be redreffed and fupplied by the judge, or the prefident of the province; and if the father was non compos, a fimilar remedy was given". Thefe provifions are adopted and imitated by the French and Hollanders, with this difference: that in France the fons cannot marry without consent of parents till thirty years of age, nor the daughters till twenty-five; and in Holland, the fons are at their own difpofal at twenty-five, and the daughters at twenty 9. Thus hath ftood, and thus at prefent ftands the law

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