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and bastardize the issue, the court of king's bench granted a prohibition quoad hoc ; but permitted them to proceed to punish the husband for incest. These canonical disabilities being entirely the province of the ecclesiastical courts, our books are perfectly silent concerning them. But there are a few statutes which serve as directories to those courts, of which it will be proper to take notice. By statute 32 Hen. VIII. C. 38. it is declared, that all persons may lawfully marry, but such as are prohibited by God's law (1); and that all marriages contracted by lawful persons in the face of the church, and consummate with bodily knowledge, and fruit of children, shall be indissoluble. 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) shall impeach any marriage, but within the Levitical degrees (2); the farthest of which is that between uncle and niecef. By the same statute all impediments

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(1) In this statute the prohibitions by God's law are not specified; 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 seem 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 dispensation had been obtained from the pope.

The question respecting the validity of this dispensation 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 inconstancy 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 ascending and descending line, and by the course of nature it is scarcely a possible case that any one should ever marry his issue in the 4th degree ; but between collaterals arising from pre-contracts to other persons, were abolished and declared of none effect, unless they had been consummated with bodily knowledge: in which case the canon law holds such contract to be a marriage de facto. But this branch of the statute was repealed by statute 2 & 3 Edw. VI. c. 23.

How far the act of 26 Geo. II. c. 33. (which prohibits all suits in ecclesiastical courts to compel a marriage, in consequence of any contract) may collaterally extend to revive this clause of Henry VIII's statute, and abolish the impediment of pre-contract, I leave to be considered by the canonists (3).

it is universally true, that all who are in the fourth or any higher de. gree are permitted to marry; as first-cousins are in the fourth degree, and therefore may marry, and nephew and great aunt, or niece and great uncle, are also in the fourth degree, and may intermarry: and though a man may not marry his grand-mother, it is certainly true that he may marry her sister. Gibs. Cod. 413. See the computation of degrees by the civil law, 2 vol. p. 207. The same degrees by affinity are prohibited. Affinity always arises by the marriage of one of the parties so related ; as a husband is related by affinity to all the consanguinei of his wife ; and vice versâ the wife to the husband's consanguinei : for the husband and wife being considered one flesh, those who are related to the one by blood, are related to the other by affinity. Gibs. Cod. 412. Therefore a man after his wife's death cannot marry her sister, aunt, or niece. But the consanguinei of the husband are not at all related to the consanguinei of the wife. Hence two brothers may marry two sisters, or father and son a mother and daughter: or if a brother and sister marry two persons not related, and the brother and sister die, the widow and widower may intermarry ; for though I am related to my wife's brother by affi. nity, I am not so to my wife's brother's wife, whom, if circumstances would admit, it would not be unlawful for me to marry.

(3) A contract per verba de presenti tempore used to be considered in the ecclesiastical courts ipsum matrimonium, and if either party had afterwards married, this, as a second marriage, would have been annulled in the spiritual courts, and the first contract enforced. See an instance of it 4 Go. 29. But as this pre-engagement can no longer be carried into effect as a marriage, I think we may now be assured that

VOL. I. 75

The other sort of disabilities are those which are created, or at least enforced, by the municipal laws. And though some of them may be grounded on natural law, yet they are regarded by the laws of the land, not so much in the light of any moral offence, as on account of the civil inconveniences they draw after them. These civil disabilities make

the contract void ab initio, and not merely voidable; [436] not that they dissolve a contract already 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 persons under these 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 case, besides the penalties consequent upon it as a felony (4), the second marriage is to all intents and purposes voids: polygamy being condemned both by the law of the new testament, and the policy of all prudent states, especially in these northern climates. And Justinian, even in the climate of modern Turkey, is express h, that “duas uxores eodem tempore habere non licet."

2. The next legal disability is want of age. This is sufficient 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 of consent aforesaid, they may disagree and declare the mar

g Bro. Abr. tit. Bastardy, pl. 8.

h Inst. 1. 10. 6.

it will never more be an impediment to a subsequent marriage actually solemnized and consummated.

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

riage void, without any divorce or sentence in the spiritual court. This is founded on the civil lawi. But the canon law pays a greater regard to the constitution, than the age, of the parties k; 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 at the age of consent they agree to continue together, they need not be married again! 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 (5): and so it is, vice versa, when the wife is of years of discretion, and the husband underm.

3. ANOTHER incapacity arises from want of con- [437] sent of parents or guardians. 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", penalties of 1001. are laid on every clergyman who marries a couple either without publication of banns (which

i Leon. Constit. 109.
k Decretal, 1. 4. tit. 2. qu. 3.
I Co. Litt. 79.

m Ibid.

n 6 and 7 Will. III. c. 6. 7 and 8 W. III. c. 35. 10 Ann. c. 19.

(5) 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 14 and 12; but it has also long been clearly settled that it is not true with regard to contracts for marriage referred to the minority under twentyone.

For where there are mutual promises to marry between two persons, one of the age of 21 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 main. tained for a similar breach of the contract on the side of the minor. Holt o. Ward Clarencieux, Str. 937. S. C. Fitzg. 175. 275.

may give notice to parents or guardians) or without a license, to obtain which the consent of parents or guardians must be sworn to (6). 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 (7) life shall go to and be enjoyed by the next heir. The civil law indeed required the consent of the parent or tutor at all ages; unless the children were emancipated, or out of the parent's power o: and if such consent from the father was wanting, the marriage was null, and the children illegitimate P, 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 ?: and if the father was non compos, a similar reinedy was given'. These provisions are adopted and imitated by the French and Hollanders, with this difference: that in France the sons cannot marry without consent of parents till thirty years of age, nor the daughters till twenty-fives; and in Holland, the sons are at their own disposal at twenty-five, and the daughters at twenty. Thus hath stood, and thus at present stands, the law in other neighbouring countries. And it has lately been

o Ff. 23. 2, 2, and 18.
P FT. 1. 5. 11.
q Cod. 5. 4. 1, and 20.
r Inst, 1. 10. 1.

s Domat. of dowries, sec. 2. Montesq. Sp. L. 23. 7.

t Vinnius in Inst, l. 1. t. 10.

(6) By the 26 Geo. II. c. 33. s. 7. if any clergyman shall marry a couple out of a church or a public chapel, where banns had been usu. ally published before 1754, unless by special license from the arch. bishop; or shall marry them without a license, or publication of banns; he shall be guilty of felony, and shall be transported for fourteen years. And there have been instances of convictions for this offence.

(7) The construction of the statute seems to be, that it shall also go to the next heir during the life of the wife, even after the death of the husband. 1 Brown. Ch. Rep. 23. But the contrary has been decided in the exchequer. Amb. 73.

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