bitus, facit nuptias" is the maxim of the Roman law in this case(d): and it was adopted by the common lawyers (e), who indeed have borrowed (especially in ancient times) almost all their notions of the legitimacy of marriage from the canon and civil laws.

Secondly, the parties must be able to contract. (139) In general all persons (d) Dig. 50, 17, 30. (e) Co. Litt. 33.

not imposed as an inducement to the marriage, but arose from the arrest and prosecution of the party for bastardy. Williams v. State, 44 Ala. 24; Jackson v. Winne, 7 Wend. 47. But where a white female is pregnant with a child begotten by a negro, and she makes oath that a white man is the father, who is arrested upon the charge, and believing that the child is his, marries her, he will be relieved upon proving that the child is a mulatto. Scott v. Shufeldt, 5 Paige, 43; Barden v. Barden, 3 Dev. 548. But see Foss v. Foss, 12 Allen (Mass.), 26.

A marriage, procured by a gross fraud which would avoid any other contract, may be decreed invalid by the courts, if relief is sought promptly, and before a consummation of the marriage by copulation. Clark v. Field, 13 Vt. 460; Robertson v. Cole, 12 Tex. 356; Keyes v. Keyes, 22 N. H. 553.

An infant under the legal age of consent, and who does not understand the nature, consequences or duties of married life, will not be bound by a marriage cerremony. Aymar v. Roff, 3 Johns. Ch. 49; Warwick v. Cooper, 5 Sneed (Tenn.), 659. See People v. Slack, 15 Mich. 193.

So a marriage is invalid where one of the parties has not sufficient understanding to comprehend the nature of the contract. True v. Ranney, 21 N. H. 52; Middleborough v. Rochester, 12 Mass. 363; Rawdon v. Rawdon, 28 Ala. 565; Foster v. Means, 1 Spear's Eq. (So. Car.) 569; Johnson v. Kincade, 2 Ired. Ch. 470.

But the same degree of capacity or mind which will enable a party to make a valid deed or will, will be sufficient to enable him to contract matrimony. Atkinson v. Medford, 46 Me. 510; Cole v. Cole, 5 Sneed (Tenn.), 57; Middleborough v. Rochester, 12 Mass. 363.

An insane person cannot contract a valid marriage while in that condition, and unable to understand the nature of his acts. Cole v. Cole, 5 Sneed (Tenn.), 57; Keyes v. Keyes, 22 N. H. 553; Wightman v. Wightman, 4 Johns. Ch. 343; Jaques v. Public Administrator, 1 Bradf. Surr. 499; Doe v. Roe, 1 Edm. Sel. Cas. 344; Crump v. Morgan, 3 Ired. Eq. 91. So of one so stupefied by intoxication as not to be capable of understanding, at the time, the nature of the transaction. Clement v. Mattison, 3 Rich. (So. Car.) 93; Menkins v. Lightner, 18 Ill. 282. But such a marriage, of an insane person, duly solemnized, and followed by cohabitation, though voidable, must be set aside during his life-time, and if this is not done his widow will be entitled to dower. Wiser v. Lockwood, 42 Vt. 720.

The consent of parents or of a guardian is sometimes important in the case of an infant's marriage. Where a statute provides that males of eighteen and females of sixteen may be joined in marriage, but requires the consent of parents or guardian, if the male is under twenty-one and the female under eighteen, the marriage of a female of sixteen, without the consent of her parents will bind her, and the contract cannot be dissolved on account of the want of this consent. Fitzpatrick v. Fitzpatrick, 6 Nev. 63.

By the common law the age of consent is twelve in females, and fourteen in males, and a marriage between two infants who are above those ages is valid without the consent of their parents or guardians, notwithstanding the statute gives a penalty if a magistrate or minister solemnizes the marriage of a female under eighteen or a male under twenty-one years of age. Parton v. Hervey, 1 Gray, 119; Warwick v. Cooper, 5 Sneed (Tenn.), 659; Bennett v. Smith, 21 Barb. 439.

A statute which prohibits the marriage of any minor without "the consent of the parent, or guardian, or other person having the care or government of such minor," limits the power to consent to one person, and that one is the person who has the care or government of the minor at the time. And where there is a guardian, the parent cannot consent so as to justify the person who joins the minor in marriage. Vaughn v. McQueen, 9 Mo. 330.

(139) As to the marriage of infants, lunatics, and other persons whose capacity to make contracts may be doubtful, see notes 137, 138.

are able to contract themselves in marriage, unless they labour under some particular disabilities, and incapacities, the nature of which we have next to consider.

These disabilities were formerly divided into two sorts, first, those which were canonical, and therefore sufficient to avoid the marriage in the spiritual court; and secondly, those which were created, or at any rate were enforced by municipal law. The canonical disabilities had this particularity, that in our law, they only made the marriage voidable, and not ipso facto void, until sentence of nullity had been obtained. Such were pre-contract; consanguinity, or relation by blood; and affinity, or relation by marriage; and some particular corporal infirmities. Of these, the disability of pre-contract has been abolished, as we shall presently see, and the others are now cognisable in the temporal courts, and generally make the marriage in itself utterly void.

These canonical disabilities were either grounded upon the express words of divine law, or supposed to be plainly *deducible from it; it therefore [ *525] being sinful in the persons who labour under them to attempt to contract matrimony together, such persons were subjected to the ecclesiastical magistrate's coercion; in order to separate the offenders, and inflict penance for the offence, pro salute animarum. Such marriages, however, not being void ab initio, but voidable only by sentence of separation, were esteemed valid to all civil purposes, unless separation was actually made during the life of the parties. For, after the death of either of them, the courts of common law would not suffer the spiritual courts to declare such marriages to have been void; because such declaration could not tend to the reformation of the parties(f). And therefore, when a man had married his first wife's sister, and after her death the bishop's court was proceeding to annul the marriage 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(g).

Pre-contract was also held to constitute a disability, but by stat. 32 Hen. 8, c. 38, among other provisions which will be hereafter referred to, all impediments arising from pre-contracts to other persons were abolished and declared of no effect, unless they had been consummated with bodily knowledge: in which case the canon law held such a contract to constitute a marriage de facto. This branch of the statute was repealed by 2 & 3 Edw. 6, c. 23, but as the 13th section of 26 Geo. 2, c. 33, expressly provides, "that in no case whatsoever shall any suit or proceeding be had in any ecclesiastical court in order to compel a celebration of any marriage in facie ecclesia by reason of any contract of matrimony whatever, whether per verba de præsenti or per verba de futuro, any law or usage to the contrary notwithstanding," it would appear that the statute of Henry VIII. is not only revived but extended, and that the disability by pre-contract is abolished, whether there has been consummation or not.

*All the disabilities for marriage now existing have been created, or [*526] at least are enforceable by the municipal laws. And though some of them may be grounded on natural law, they owe their efficacy to the laws of the land. These civil disabilities, with two exceptions(h), make the contract void ab initio, and not merely voidable; that is, they do not dissolve a

(f) Co. Litt. 33; 2 Phill. 16.

(g) 2 Salk. 548.

(h) That is to say, want of age, and certain physical infirmities.

contract already formed, but they render the parties incapable of performing 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, not a matrimonial, union.

1. The first of these legal disabilities is a prior marriage, or the having another husband or wife living; in which case, besides the penalties consequent upon it as a felony, the second marriage is to all intents and purposes void(i): polygamy being contrary to the spirit 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(k), that "duas uxores eodem tempore habere non licet." (140)

2. The next legal disability is want of age.(141) This is sufficient to render voidable other contracts, on account of the imbecility of judgment in the infant who contracts: 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 marriage void, without any divorce or sentence in a court. This is founded on the civil law. But the canon law paid a greater regard to the constitution, than the age of the parties(1): for if they were habiles ad matrimonium, it was a good marriage, *whatever their age might be. And in our law it is so far a marriage that, if at the age of consent [*527] the contracting parties agree to continue together, they need not be married again(m). 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; for in this contract the obligation must be mutual; both must be bound, or neither: and so it is, vice versa, when the wife is of years of discretion, and the husband under(n). This doctrine does not, however, extend beyond the actual marriage contract, referred to the ages of fourteen and twelve; for it has long been settled that if one of two parties to à contract to marry in futuro, be under twenty-one, and the other above that age, the former only can maintain an action for a breach of the promise, without being exposed to a plea of infancy, for such a contract is voidable by the minor on attaining majority (o).(142)

3. A third incapacity is want of reason; without a competent share of which neither can the matrimonial nor any other contract be valid.(143) It was for

(1) Bro. Abr. tit. Bastardy, pl. 8.

(k) Inst. 1. 10, 6.

(1) Decretal. Greg. 1. 4, tit. 2, cap. 3.
(m) Co. Litt. 79.

(n) Ib.

(o) Holt v. Ward, 2 Str. 937; Warwick v. Bruce, 2 M. & S. 205, 209.

(140) One ground of incompetency to contract marriage is that one of the parties has a living wife or husband at the time of entering into the second marriage; and when this is the case, the second marriage is entirely void. Appleton v. Warner, 51 Barb. 270; Smith v. Woodworth, 44 id. 198; Commonwealth v. Hunt, 4 Cush. 99; Heffner v. Heffner, 23 Penn St. 104; Martin v. Martin, 22 Ala. 86; Gaines v. Relf, 12 How. (U. S.) 472; Sellars v. Davis, 4 Yerg. (Tenn.) 503; Jones v. State, 5 Black f. 141.

Impotency in a husband does not render a marriage by him void ab initio, but only avoidable by sentence of separation, and until such sentence, it is to be deemed valid and subsisting. Smith v. Morehead, 6 Jones' Eq. (N. C.) 360.

(141) See notes 137, 138.

(142) See note 137.

(143) See notes 137, 138.

merly adjudged, that the issue of an idiot was legitimate, and consequently that his marriage was valid(p). A strange determination! since consent is absolutely requisite to matrimony, and neither idiots nor lunatics are capable of consenting to anything. And therefore the civil law judged much more sensibly when it made deprivation of reason a previous impediment; though not a cause of divorce, if it happened after marriage(q). And modern resolutions have adhered to the reason of the civil law, by determining that the marriage of a lunatic, not being in a lucid interval, was absolutely void (r). But as it might be difficult to prove the exact state of the party's mind at the [*528] actual celebration of the nuptials, the statute 15 Geo. 2, c. 30, provided that the marriage of a lunatic (if found lunatic under a commission, or committed to the care of trustees by any act of parliament), before he or she is declared of sound mind by the lord chancellor or the majority of such trustees, shall be void.

4. There is another disability, viz.: in respect of relationship, whether by consanguinity or affinity. By statute 32 Hen. 8, c. 38, it is declared, that all persons may lawfully marry, but such as are prohibited by God's law; and that all marriages contracted by lawful persons in the face of the church, and consummated with bodily knowledge and fruit of children, shall be indissoluble. And, (because, by the Roman Catholic church, various degrees of kindred were made impediments to marriage, which impediments were often, however, 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, the farthest of which is that between uncle and niece(s). Therefore, the marriages now prohibited, are those between parties related to each other, either by consanguinity or affinity, within the third degree inclusive(t). Marriages between parties who are in the fourth or any higher degree are lawful; as between first cousins, a nephew and a great aunt, or a niece and her great uncle. Relationship by affinity always arises from the marriage of one of the parties so related, but it extends only to the consanguinei of each party respectively (u). Thus a husband is related by affinity to all the consanguinei of his wife, and vice versá a wife to all the consanguinei of her husband; and consequently a man cannot marry the sister of his deceased *wife (u), or her aunt, or niece, or [ *529] daughter by a former husband (v). But a man may marry his brother's wife's sister, and a widower may marry the widow of his wife's brother, for no relationship or affinity whatever exists between the parties.(144)

5. Lastly, the parties must not only be willing and able to contract, but actually must contract themselves in due form of law to make a good civil marriage. Any contract made, per verba de præsenti, or in words of the present

(p) 1 Roll. Abr. 357.

(q) Dig. 23, tit. 1, 8, and tit. 2, 16.

(r) Turner v. Meyers, 1 Hag. Con. Rep. 414; Hancock v. Peaty, L. R. 1 P. & D. 335.

(8) Gilb. Rep. 158; Levit. c. xviii. For a table of Levitical degrees, see Burn's Eccl. Laws, tit. Marriage, and Gibs. Cod. tit. 22, c. 1.

(t) Gibs. Cod. tit. 22, c. 1.

(u) Gibs. Cod. tit. 22, c. 1. For table of consanguinity, see vol. ii.

(u) Brook v. Brook, 9 H. L. Cas. 193; Fenton v. Livingstone, 3 Macq. Sc. App. Cas. 497. (v) 2 Phill. 18, 359.

(144) The several states provide by statute such rules as they deem proper upon this subject, and those statutes, with the decisions under them, must be consulted when the law of any particular state is in question. See Taylor on Inf. & Cov. 837; 1 Bish, on Marr. & Div. § 318, note 2.

tense, in the presence of, and with the assistance of a priest in holy orders, was a valid marriage at common law, before the statute 26 Geo. 2, c. 33 (A.D.1753); indeed there are authorities to the effect that such a contract was a valid marriage without the presence of a priest, though it is more than doubtful whether such would be held to be the case now (w). (145)

From the passing of the above mentioned statute, till A.D. 1822, it was held that no marriage was valid which was not celebrated in some parish church or public chapel, (unless by dispensation from the archbishop of Canterbury). It must also have been preceded by publication of banns, or by licence from the spiritual judge(x); in the latter case, however, the consent of parents or guardians was necessary when either party was a minor, unmarried previously. Many other formalities were *likewise prescribed by the act; the neglect of which, though penal, did not invalidate the marriage.

[* 530] As the law then stood, we may upon the whole collect, that no marriage by the temporal law was ipso facto void if celebrated by a person in orders,- in a parish church, or public chapel, (or elsewhere by special dispensation) — in pursuance of banns or a licence,― between single persons, not being within the prohibited degrees of relationship,- consenting(y),- of sound mind,and of the age of twenty-one years; or of the age of fourteen in males and twelve in females, with consent of parents or guardians, or without in case of widowhood. And no marriage was voidable by the ecclesiastical law, after the death of either of the parties, nor during their lives, unless for the canonical impediments of consanguinity and of affinity, or corporal imbecility, subsisting previous to the marriage.

The rigid enforcement of the above rules having led to much inconvenience, the provisions of the act of Geo. II. were first relaxed by 3 Geo. 4, c. 75, and then by 4 Geo. 4, c. 76; and as those acts still rendered it necessary for all persons, except Quakers and Jews, to be married according to the rites of the established church, further relaxations in favour of non-conformists of all descriptions were made by 6 & 7 Will. 4, c. 85, which has since been amended by subsequent enactments(z).

With regard to the forms now requisite, the subject may be most conveniently regarded under the following divisions: 1. Marriages by the established church; and 2. Other marriages(z).

1. For the legal constitution of any marriage solemnised according to the forms of the established church, it is necessary that it either be preceded by the publication of banns for three Sundays in the parish church or public *chapel of the parish or chapelry (or of each parish or chapelry, if more than one) in which the parties to be married shall dwell; or be authorised by a licence or registrar's certificate.

1. Church marriages.

(w) See Reg. v. Millis, 10 Cl. & F. 534; Beam ish v. Beamish, 9 H. L. Cas. 274; where the authorities are collected.

(r) It was held to be essential to a marriage, that it be performed by a person in holy orders (Salk. 119); though the intervention of a priest to solemnise this contract is merely juris positivi, and not juris naturalis aut divini: it being said that Pope Innocent III., first or. dained the celebration of marriage in the church (Moor,170), before which it was totally a civil contract. And in the times of the

[* 531]

commonwealth, all marriages were performed by justices of the peace; and these marriages were declared valid, without any fresh solemnisation, by stat. 12 Car. 2, c. 33.

(y) See Field's Marriage Annulling Bill, 2 H. L. Cas. 48.

(2) The account in the text of the present form in which marriages are to be solemnised is taken from the Report issued 4th July, 1868, by the Royal Commission on the Laws of Marriage.

(145) See notes 137, 138.