thought proper to introduce somewhat of the same policy into our laws by statute 26 Geo. II. c. 33. whereby it is enacted, that all marriages celebrated by license (for banns suppose notice) where either of the parties is under twenty-one, (not being a widow or widower, who are [438] supposed emancipated,) without the consent of the father, or, if he be not living, of the mother or guardians (8), (8) A matter of such importance deserves to be more particularly stated: the party under age marrying by license, 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. I have been inclined to think that the words lawfully appointed comprehend a guardian appointed by the father, a guardian appointed by the court of chancery, and also, where such a guardian can exist, a socage guardian, he being a guardian of the person of the ward appointed by the law itself. It is true, this guardianship continues only till the ward attains the age of 14, and the mother in all cases, except when she is heir to her own son, that is when she would be heir to her husband without issue, will be the socage guardian; but if the parents were both dead, and there was a socage guardian, who consented to the marriage of a girl under 14, would not this marriage be valid if solemnized by a license? Here is the consent of a guardian of the person of the party appointed by the law, and would not this be within the meaning of the words lawfully appointed? The consent of the guardian appointed by the court of chancery being expressly mentioned in the last instance, seems to afford some inference that that species of guardian was not included within the words lawfully appointed; but it affords a very slight inference indeed, for though he was included in the general words, yet it was absolutely necessary to name him expressly again; and the statute in effect thereby declares, that if none of those persons previously described are in existence, then, in order to give validity to a marriage by license, a guardian must be appointed by the court of chancery, for the express purpose of giving his consent to it. And this is by no means repugnant with the supposition, that, if a guardian is appointed by the court of chancery after the father's death, his consent shall pre-* cede that of the mother, he being a guardian lawfully appointed. shall be absolutely void. 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 labor under any mental or other incapacity (9). Much may be, and much has been said, bcth 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 norality, by encouraging licentiousness and debauchery among the single of both sexes, and thereby destroying one end of society and government, which is concubitu prohibere 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 If those who composed the marriage act, had meant only to interpose a guardian appointed by the father between the father and the mother, surely they would have used the specific words appointed by the father, rather than the general words lawfully appointed. I have thought it proper to make these observations, because I see that sir William Scott, in the case of Horner v. Liddiard, p. 180. construes the words a guardian lawfully appointed, to mean a guardian appointed by the father only. He cites no authority for this construction. For the rea sons I have assigned, I hope I may, without offence, presume to question, in this instance, the opinion of so learned and respectable a judge. See p. 459. n. 11. post. (9) The words of the statute are, "if any such guardian, or mother, or any of them, whose consent is made necessary, shall be non compos mentis, &c.” Under the words any of them, I conceive that the chancellor would think himself enabled to consent for a father, whose con sent it was thus impossible to obtain. 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 aslip in her conduct, he was not allowed to disinherit her upon that account, "quia “non sua culpa, sed parentum, id commissse cognoscitur "" 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 w. 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, f they hap- [439] pened after marriage. And modern resoutions have adhered to the reason of the civil law, by determiningy that the marriage of a lunatic, not being ʼn a lucid interval, was absolutely void. But as it might be dfficult 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 reasons) the statute 15 Geo. II.c. 30. has provided that the marriage of lunatics and persons under phrenzies (if found lunatics under a commission, a 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 10). u Nov. 115. sec. 11. w 1 Roll. Abr. 357. x Ff. 23. tit. 1. 1. 8. et tit. 2. L. 16. y Morrison's cse, coram Delegat. (10) Till the 2 & 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 LASTLY, the parties must not only be willing and able to contract, but actually must contract themselves in due form of law, to make it a good civil marriage. Any contract made, per verba de praesenti, or in words of the present tense, and in case of cohabitation per verba de futuro also, between persons able to contract, was before the late act deemed a valid marriage to many purposes; and the parties might be com 2 & 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 laty enjoyed. The preamble to that statute, as almost all the preambls to the statutes in that short reign, is expressed with a remarkable degree of eloquence. "Although it were not only "better for the estimation of priests and other ministers in the church "of God, to live chast, sole, and separate from the company of women, "and the bond of marriage; but also thereby they might the better "intend to the adminitration of the gospel, and be less intricated and "troubled with the clarge of household, being free and unburdened "from the care and cet of finding wife and children; and that it were "most to be wished, that they would willingly and of their selves en"deavour themselves to a perpetual chastity and abstinence from the "use of women: yet, prasmuch as the contrary hath rather been seen, "and such uncleanliness of living, and other great inconveniences not "meet to be rehearse, have followed of compelled chastity, and of "such laws as have prohibited those the godly use of marriage; it were "better, and rather t be suffered in the commonwealth, that those "which could not contain, should, after the counsel of scripture, live "in holy marriage, tha feignedly abuse with worse enormity, outward "chastity, or single lie." But this statute, like all the other reforms in the church, was repealed by queen Mary, and it was not revived again till the 1 Ja. I. c. 25. though the thirty-nine articles had been passed in convocation n the fifth year of the reign of queen Elizabeth the 32d of which declares, that it is lawful for the bishops, priests, and deacons, as for all other christian men, to marry at their own discretion. The clerks in chancery, though laymen, were not allowed to marry till the 14 & 15 Hen. VIII. c. 8. And no lay doctor of civil law, if he was married, could exercise any ecclesiastical jurisdiction till 37 Hen VIII. c. 7. 2 Burn. Et. L. 418. pelled in the spiritual courts to celebrate it in facie ecclesiae. But these verbal contracts are now of no force, to compel a future marriage a. Neither is any marriage at present valid, that is not celebrated in some parish church or public chapel (11) unless by dispensation from the arch-bishop of Canterbury. It must also be preceded by publication of banns, or by license from the spiritual judge. Many other formalities are likewise prescribed by the act; the neglect of which, though penal, does not invalidate the marriage. It is held to be also essential to a marriage, that it be performed by a person in orders; though the intervention of a priest to solemnize this contract is merely juris positivi, and not juris naturalis aut divini: it being said that pope Innocent the third was the first who ordained the celebration of marriage in the church; before which it was totally a civil contract. And, in the times of the grand rebellion, all marriages were performed by the justices of the peace; and these marriages were declared valid, without any fresh solemnization, by statute 12 Car. II. c. 33. But, as the law now stands, we may upon the whole collect, that no marriage by the temporal law is ipso facto void, that is celebrated by a person in orders, in a parish church or public chapel (or elsewhere, by special dispensation) in pursuance of banns or a license,-between single a Stat. 26 Gco. II. c. 33. b Salk. 119. c Moor, 170, [440] (11) The marriage act requires, that the marriage shall be celebrated in some parish church or public chapel, where banns had been usually published; i. e. before the 25th of March 1754. In consequence of this construction, the court of king's bench were obliged to declare a marriage void, which had been solemnized in a chapel erected in 1765. (Doug. 659.) And as there were many marriages equally defective, an act of parliament was immediately passed, which legalized all marriages celebrated in such churches or chapels, since the passing of the marriage act; and it also indemnified the clergymen from the penalties they had incurred. 21 Geo. III. c. 53. |