Book I. formed, but they render the parties incapable of forming any contract at all they do not put asunder those who are joined together, but they previously hinder the junction. And, if any perfons under thefe legal incapacities come together, it is a meretricious, and not a matrimonial, union. : I. THE firft of thefe legal difabilities is a prior marriage, or having another husband or wife living; in which cafe, besides the penalties confequent upon it as a felony, the second marriage is to all intents and purposes voids: polygamy being condemned both by the law of the new teftament and the policy of all prudent ftates, especially in these northern climates. And Juftinian, even in the climate of modern Turkey, is exprefs", that “duas "uxores eodem tempore habere non licet.' 2. The next legal difability 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 marrics, 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 partics: 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 bc of years of difcretion, and the wife under twelve, when fhe comes to years of difcretion he may difagree as well as fhe may : for in contracts the obligation must be mutual; both muft be bound, or neither: and fo it is, vice verfa, when the wife is of years of difcretion, and the hufband under". Bro. Abr. t. Eaftordy, pl. 8. h Tak. 1. 10. 6. i Leon, Confit, 1:9. 3. ANOTHER 3. ANOTHER incapacity arifes from want of confent of pa rents or guardians. By the common law, if the parties themfelves 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 several statutes", 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 must be fworn to. And by the ftatute 4 & 5 Ph. & M. c. 8. whofoever marries any woman child under the age of fixteen ycars, without confent of parents or guardians, fhall be fubject to fine, or five years imprisonment: 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 unreasonably 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'. These provifions are adopted and imitated by the French and Hollanders, with this difference: that in France the fons cannot marry without confent 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'. Thus hath flood, and thus at prefent ftands, the law in other neighbouring countrics. And it has lately been thought proper to introduce fomewhat of the fame policy into our laws, by ftatute 26 Geo. II. c. 33. whereby it is enacted, that all marriages celebrated by licence (for banns fuppofe notice) where either of the partics is under under twenty-one (not being a widow or widower, who are supposed emancipated) without the confent of the father, or, if he be not living, of the mother or guardians, fhall be abfolutely void. A like provifion is made as in the civil law, where the mother or guardian is non compos, beyond fea, or unreasonably froward, to difpenfe with fuch confent at the difcretion of the lord chancellor: but no provifion is made, in cafe the father fhould labour under any mental or other incapacity. Much may be, and much has been, faid both for and against this innovation upon our antient laws and conftitution. On the one hand, it prevents the clandeftine marriages of minors, which are often a terrible inconvenience to thofe private families wherein they happen. On the other hand, restraints upon marriages, especially among the lower clafs, are evidently detrimental to the public, by hindering the encrease of people; and to religion and morality, by encouraging licentioufnefs and debauchery among the fingle of both fexes; and thereby destroying one end of society and government, which is, concubitu prohibere vago. And of this laft inconvenience the Roman laws were fo fenfible, that at the fame time that they forbad marriage without the confent of parents or guardians, they were lefs 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 the afterwards made a flip in her conduct, he was not allowed to difinherit her upon that account; " quia non fua culpa, fed parentum, id commififfe cognofcitur". 4. A FOURTH incapacity is want of reafon; without a competent fhare of which, as no other, fo neither can the matrimonial contract, be valid". It was formerly adjudged, that the issue of an idiot was legitimate, and confequently that his marriage was valid. Aftrange determination! fince confent is abfolutely requisite to matrimony, and neither idiots nor lunatics are capable of confenting to any thing. And therefore the civil law judged much more fenfibly, when it made such deprivations of reason a previous u Nov. 115. §. 11. w Roll. Abr. 357. previous impediment; though not a caufe of divorce, if they happened after marriage. And modern refolutions have adhered to the reafon of the civil law, by determining' that the marriage of a lunatic, not being in a lucid interval, was abfolutely 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 fome private family reafons) the statute i5 Geo. II. c. 30. has provided, that the marriage of lunatics and perfons under phrenzies (if found lunatics under a commiffion, or committed to the care of truftees by any act of parliament) before they are declared of found mind by the lord chancellor or the majority of fuch trustees, fhall be totally void. LASTLY, the parties muft not only be willing, and able to contract, but actually muft contract themfelves in due form of law, to make it a good civil marriage. Any contract made, per verba de praefenti, or in words of the prefent tenfe, and in cafe of cohabitation per verba de futuro alio, between perfons able to contract, was before the late act deemed a valid marriage to many purposes; and the parties might be compelled in the fpiritual courts to celebrate it in facie ecclefiae. But these verbal contracts are now of no force, to compel a future marriage'. Neither is any marriage at prefent valid, that is not celebrated in fome parish church or public chapel, unless by difpenfation from the archbishop of Canterbury. It must alfo be preceded by publication of banns, or by licence from the fpiritual judge. Many other formalities are likewife prcfcribed by the act; the neglect of which, though penal, does not invalidate the marriage. It is held to be alfo effential to a marriage, that it be performed by a perfon in orders"; though the intervention of a pricft to folemnize this contract is merely juris pofitivi, and not juris naturalis aut divini: it being faid that pope Innocent the third was the firft who ordained the celebration of marriage in the church; before x Ff. 23. tit. 1. 1. 8. & tit. 2. l. 16. b att. 16 Geo. II .. 33. Before which it was totally a civil contract. And in the times of the grand rebellion, all marriages were performed by the juftices of the peace; and these marriages wefe declared valid, without any freth folemnization, by ftatute 12 Car II. c. 33. But, as the law now ftands, we may upon the whole collect, that no marriage by the temporal law is ipfo facto void, that is celebrated by a perfon in orders,-in a parish church or public chapel (or elsewhere, by fpecial difpenfation) — in pursuance of banns or a licence, -- between ingle perfons, confenting, of found mind, and of the --and of the age of twenty one years; — of of the age of fourteen in males and twelve in females, with confent of parents or guardians, or without it, in cafe of widowhood. And no marriage is voidable by the ecclefiaftical law, after the death of either of the parties; nor during their lives, unless for the canonical impediments of pre-contract, if that indeed still exifts; of confanguinity; and of affinity, or corporal imbecillity, fubfifting previous to the marriage. II. I AM next to confider the manner in which marriages may be diffolved; and this is either by death, or divorce. There are two kinds of divorce, the one total, the other partial; the one a vinculo matrimonii, the other merely a menfa et thoro. The total divorce, a vinculo matrimonii, must be for fome of the canonical caufes of impediment before-mentioned; and those, exifting before the marriage, as is always the cafe in confanguinity; not fupervenient, or arifing afterwards, as may be the cafe in affinity or corporal imbecillity. For in cafes of total divorce, the marriage is declared null, as having been abfolutely unlawful ab initio; and the parties are therefore feparated pro falute animarum: for which reafon, as was before obferved, no divorce can be obtained, but during the life of the parties. The iffue of fuch marriage, as is thus entirely diffolved, are baftards. DIVORCE a menfa et thoro is when the marriage is just and lawful ab initio, and therefore the law is tender of diffolving it; but, d Co. Litt. 235. |