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CHAPTER THE FIFTEENTH,

OF HUSBAND AND WIFE.

TH

HE fecond private relation of perfons is that of marriage, which includes the reciprocal rights 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.

I. OUR law confiders marriage in no other light than as a civil contract. The holiness of the matrimonial state is left entirely to the ecclefiaftical law: the temporal courts not having jurifdiction to confider unlawful marriage as a fin, but merely as a civil inconvenience. The punishment therefore, or annulling, of incestuous or other unscriptural marriages, is the province of the spiritual courts; which act pro falute animae a. 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 first place, willing to contract; fecondly, able to contract; and, lastly, actually did contract, in the proper forms and folemnities required by law.

1 Salk. 121.

:

FIRST, they must be willing to contract. "Confenfus non "concubitus, facit nuptias," is the maxim of the civil law in this cafe and it is adopted by the common lawyers, who indeed have borrowed (especially in antient times) almost 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 themselves in marriage, unless they labour under fome particular disabilities, and incapacities. What thofe are, it will be here our business to inquire.

Now thefe difabilities are of two forts: first, such 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 precontract; confanguinity, or relation by blood; and affinity, or relation by marriage; and fome particular corporal infirmities. And thefe canonical difabilities 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 coërcion; in order to separate 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 such separation is actually made during the life of the parties. For, after the death of either of them, the courts of common law will not suffer the fpiritual courts 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 married his firft wife's fifter, and after her death the bishop's court was pro

Ff. 50. 17.30.

Co, Litt. 33.

d Ibid.

ceeding

ceeding 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 incest . 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 such as are prohibited by God's law (1); and that all marriages contracted by lawful perfons in the face of the church, and confummate with bodily knowlege, and fruit of children, fhall be indiffoluble. And (because 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 same statute, that nothing (God's law excepted) fhall impeach any marriage, but within the Levitical degrees (2); the fartheft of which is that between uncle and niece'. By

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(1) In this ftatute the prohibitions by God's law are not fpecified; but in the 25 Hen. VIII. c. 22. and 28 Hen. VIII. c. 7. the prohibited degrees are particularized. It is doubtful whether these two last statutes are in force. 2 Burn. Ec. 405. But so far they feem only to be declaratory of the Levitical law. The former declared null and void the marriage between Hen. VIII. and Catharine of Arragon, the widow of his eldest brother prince Arthur; for which a difpenfation had been obtained from the

pope.

The question respecting the validity of this difpenfation, produced that quarrel between the king and the pope, which ended in the abolition of the dominion of the latter in this country: and the inconftancy of that capricious king's affections accelerated the reformation of our religion.

(2) The prohibited degrees are all which are under the 4th degree of the civil law, except in the afcending and defcending line, and by the course of nature it is scarcely a poffible cafe that any Que fhould ever marry his iffue in the 4th degree; but between collaterals

BOOK I. 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 knowlege; in which cafe the canon law holds fuch contract to be a marriage de facto. But this branch of the ftatute was repealed by statute 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 precontract, I leave to be confidered by the canonifts (3).

laterals it is univerfally true, that all who are in the 4th or any higher degree are permitted to marry; as first-coufins are in the 4th degree, and therefore may marry, and nephew and great aunt, or niece and great uncle, are alfo in the 4th degree, and may intermarry and though a man may not marry his grand-mother, it is certainly true that he may marry her fifter, Gibf. Cod. 413. See the computation of degrees by the civil law, 2 vol. p. 207. The fame degrees by affinity are prohibited. Affinity always arises by the marriage of one of the parties fo related; as a hufband is related by affinity to all the confanguinei of his wife; and vice verfa the wife to the hufband's confanguinei: for the husband and wife being confidered one flesh, those who are related to the one by blood, are related to the other by affinity. Gibf. Cod. 412. Therefore a man after his wife's death cannot marry her fifter, aunt, or niece. But the confanguinei of the husband are not at all related to the confanguinei of the wife. Hence two brothers may marry two fifters, or father and son a mother and daughter; or if a brother and fifter marry two persons not related, and the brother and fifter die, the widow and widower may intermarry; for though a man is related to his wife's brother by affinity, he is not fo to his wife's brother's wife, whom, if circumftances would admit, it would not be unlawful for him to marry.

(3) A contract per verba de prafenti tempore used to be confidered in the ecclefiaftical courts ipsum matrimonium, and if either party had afterwards married, this, as a second marriage, would have been annulled in the fpiritual courts, and the first contract enforced. See an inftance of it 4 Co. 29. But as this pre-engage

ment

THE other fort of difabilities are those which are created, or at least 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, as on account of the civil inconveniences they draw after them. These civil difabilities make the contract void ab initio, and not merely voidable: not that they diffolve a contract already formed, but they render [436] the parties incapable of performing any contract at all: they do not put afunder those who are joined together, but they previously hinder the junction. And, if any persons under thefe legal incapacities come together, it is a meretricious, and not a matrimonial, union.

1. THE first of these legal disabilities is a prior marriage, or having another husband or wife living; in which cafe, befides the penalties confequent upon it as a felony (4), the fecond marriage is to all intents and purposes void; polygamy being condemned both by the law of the new testament, and the policy of all prudent states, especially in these northern climates. And Juftinian, even in the climate of modern Turkey, is exprefs", that "duas uxores eodem tem66 pore habere non licet."

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 most 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

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ment can no longer be carried into effect as a marriage, I think we may now be affured that it will never more be an impediment to a fubfequent marriage actually folemnized and confummated.

(4) See the exceptions, 4 vol. 164.

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