410 
MARRIAGE. 
legitimate defcendants, the children of the barragana fuc- 
ceeded to their father’s inheritance, in preference to his 
collateral heirs 5 and, where he died without making pro- 
vifion for them, they were entitled to fliare in the diviiion 
of his property with his children, born in lawful wedlock. 
Illegitimacy was no reproach or bar to advancement. The 
natural children had the fame civil privileges as the legi¬ 
timate offspring. They were publicly acknowledged by 
their father, and were educated in the houfe, with the 
fame care, and under the fame matters. If he chofe to 
bellow upon them an adequate fortune, he could raife 
them to the rank and consideration of nobility: EJlo es 
fuero'de Cajiiella : quc fi un fijodalgo a fijos de barragana.., 
puedeios facer fijojdalgo, e darles quinientos fueldos. The chil¬ 
dren of prielts by their barraganas fucceeded to the inhe¬ 
ritance of their fathers as a matter of right; and, if we 
may credit the complaints of laymen, they were not un- 
frequently provided for at the expenfe of the church. In 
thefe inftitutions it is impoffible not to recognize the in¬ 
fluence of Moorirti manners and opinions on the Spanifh 
.Chriftians. Great as was the licenfe ufed every where by 
the nobility in. the middle ages, there was no country but 
Spain where this fpecies of polygamy was reduced to a 
fyltem, and placed under the folicring care and protection 
of the law. 
In Germany, they have a kind of marriage called mor¬ 
ganatic, wherein, a man of quality contracting with a wo¬ 
man of inferior rank, he gives her the left hand inftead 
of the right; and ftipulates, in the contrad, that the wife 
fhall continue in her former rank or condition, and that 
the children born of them fhall be of the fame; fo that 
they become baftards as to matters of inheritance, though 
they are legitimate in effefl. They cannot bear the name 
or arms of the family. None but princes and great lords 
of Germany are allowed this kind of marriage. The uni- 
-verfities of Leipfio and Jena have declared againft the va¬ 
lidity of fuch contrails ; maintaining, that they cannot 
.prejudice the children, efpecially when the emperor’s con¬ 
tent intervenes in the marriage. 
Among all the favage nations, whether in Afia, Africa, 
or America, the wife is commonly bought by the hufband 
from her father, or thofe other relations who have an au¬ 
thority over her; and the conclulion of a bargain for this 
purpofe, together with the payment of the price, has, 
therefore, become the ufual form or lolemnity in the cele¬ 
bration of their marriages. Among the Abiponians, the 
price varies from four horfes down to a bottle of brandy. 
The Araucans buy as many wives as they can afford to 
maintain. 
The ancient Afiyrians fold their beauties by an annual 
auction. Tlie prices were applied by way of portion to 
the more homely. By this contrivance, all of both forts 
were difpofed of in marriage. Among the old inhabitants 
of Germany, as well as the Jewifh patriarchs, and the 
Grecians, the hufband paid money to the family of the 
wife ; whereas now the wife brings money to her hufband. 
This alteration, fays Paley, has proved of no fniall advan¬ 
tage to the female fex ; for their importance in point of 
fortune procures for them, in modern times, that afliduity 
and refpecl which are always wanted to compenfate for 
the inferiority of their Itrength, but which their perfonal 
attractions would not always fecure. 
The Eiijglifh law confiders marriage in no other light 
than as a civil contract: the halinefs of the matrimonial 
'Hate being left entirely to the ecclefiaftical law, to which 
it pertains to punifh or annul incefluous or other unfcrip- 
tural marriages. The law allows marriage to be good and 
valid, where the parties at the time of making it were 
■willingand able to contract, and actually did contract, in 
the proper forms and folemnities required bylaw. As to 
their being willing to.contraft, “ Confenfus, non concu- 
bitus, faciat nuptias,” is the maxim of the civil law in 
this cafe; and it is adopted by the common lawyers. 
Co. Lilt. 33. The dliabilities or incapacities for contract¬ 
ing are of two fortsfir It, fuch as are canonical, and there¬ 
fore fufficient by the ecclefiaftical laws to avoid the mar¬ 
riage in the fpiritual court; fuch as pre-contrad, confan- 
guinity, or relation by blood ; and affinity, or relation by- 
marriage, and fome particular corporeal infirmities. But 
thefe difabilities in our law do not make the marriage ipfo 
faElo void, but voidable only by fentence of reparation; 
and marriages are elteemed valid to all civil purpoles, un- 
lefs fuch leparation is actually made during the life of 
the parties. Thus, when a rnan had married his firft -wife’s 
filter, and after her death the bifficp’s court was proceed¬ 
ing to annul the marriage, and baftardize the iflue, the 
court of king’s bench granted a prohibition quoad hoc ; 
but permitted them to proceed to punifh the hufband for 
inceft. Salk. 548. 
By 32 Hen. VIII. c. 38, it is declared, that all perfons 
may lawfully marry, but fuch as are prohibited by God’s 
law, See. And that nothing (God’s law excepted) fhall 
impeach any marriage but within the Levitical degrees: 
thefe are enumerated in the eighteenth chapter of Levi¬ 
ticus, and are illuftrated by lord Coke in this manner: A 
man may not marry his mother, father’s lifter, mother’s 
lifter, filter, daughter, daughter of his foil or daughter, 
father’s wife, uncle’s wife, father’s wife daughter, bro¬ 
ther’s wife, wife’s filter, foil’s wife or wife’s daughter, and 
daughter of his wife’s ion or daughter. And a woman 
may not marry her father, father’s brother, mother’s bro¬ 
ther, brother, fon of her fon or daughter, mother’s huf¬ 
band, aunt’s hufband, fifter’s hufband, bufband’s brother, 
and fon of her hufband’s ion or daughter. Accordingly, 
a table was let forth in the year 1563, fpecifying at large 
the prohibited degrees. It is obferved, that the degrees 
prohibited by the Levitical law are all within the fourth 
degree of confanguinity, as eftabliflied by the computa¬ 
tion of the civilians; all collaterals, therefore, in that de¬ 
gree, or beyond it, may marry. By the civil law firft: 
coufins are allowed to marry ; but by the canon law both 
firft and fecond coufins are prohibited. Therefore, when 
it is vulgarly faid, that firll coufins may marry, but fecond 
coufins cannot, this probably arofe by confounding thefe 
two laws; for'firft coufins may marry by the civil law, 
and fecond coufins cannot by the canon law. But by the 
forefaid flat. 32 Hen. VIII. c. 38, it is clear that both firft: 
and fecond coufins may marry. By the fame ftatute all 
impediments arifing from pre-contrafts to other perfons 
were abolifhed, and declared of none effe£t, unlefs they 
had been confummated with bodily knowledge; in which 
cafe the canon law holds fuch contrail to be a marriag'e 
de faElo. But this branch of the ftatute was repealed by 
2 & 3 Edw. VI. c. 23. How farthe ail of 26 Geo. II. c. 33. 
(which prohibits all fuits in ecclefiaftical courts to com¬ 
pel a marriage in confequence of any contrail) may col¬ 
laterally extend to revive this claufe of Henry VUIth’s 
ftatute, and abolifh the impediment of pre-contrail, judge 
Blackftone leaves to be confidered by the canonifls. We 
fhall here obferve, that on a proinife of marriage, if it be 
mutual on both lides, damages may be recovered, in cafe 
either party refufes to marry ; and, though no time for 
the marriage is agreed on, if the plaintiff avers that he 
offered to marry the defendant, who,refufsd it, an aition 
is maintainable for the damages; but no aition fhall be 
brought upon any agreement except it is in writing, and 
figned by the party to be charged. The canonical hours 
for celebrating marriage are from eight till twelve in th-e 
forenoon. 
Difabilities of another fort are thofeWhich are created, 
or at leaft enforced, by the municipal laws. Thefe civil 
difabilities make the contrail void ab initio , and not mere¬ 
ly voidable, by rendering the parties incapable of forming 
any contrail at all. The firft legal difability is a prior mar¬ 
riage, or having another hufband or wife living; in which 
caie, befides the penalties confequent upon it as a felony, 
the fecond marriage is to all intents and purpoles void. 
The next legal difability is want of age: therefore, if 
a boy under fourteen, or a girl under twelve years of age, 
marries, when either of them comes to the age of coaled 6 
if 1 they 
