MARRIAGE. 
4H 
they may difagree, 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 constitution than the age of the parties; for, 
if they are kabiles ad matrimonium, it is a good marriage, 
whatever the age may be. And in our law it is fo far a 
marriage, that, if at the age of confent they agree to con¬ 
tinue together, they need not be married again. Co.Litt.jt). 
If the hufband be of years of difcretion, and the wife un¬ 
der twelve, when (he comes to years of difcretion he may 
difagree as well as (lie may; for in contrails the obliga¬ 
tion"’muff be mutual; both mud be bound or neither: 
and fo it is vice verfa , when the wife is of years of difcre¬ 
tion, and the hufband under. However, 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. 
Another incapacity arifes from want of confent of parents 
or guardians. By the common law, if the parties thetn- 
felves were of the age of confent, no other concurrence was 
neceflary to make the marriage valid ; and this was agree¬ 
able to the canon law. But by feveral ffatutes, viz. 6 Sc 
7 Will. III. c. 6. 7 & 8 Will. III. 0.35. 10 Ann. c. 19. 
penalties of tool, are laid on every clergyman who mar¬ 
ries a couple, either without publication of banns, which 
may give notice to parents or guardians, or without a 
licenfe, to obtain which the confent of parents or guar¬ 
dians mud be fworn to. And by 4 & 5 Phil, and Mary, 
c. 8. whofoever marries any woman-child under the age 
of fixteen years, without confent o( parents or guardians, 
{hall be fubjett to fine, or five years imprifonment; and 
her eftate, during the hufband’s life, {hall be enjoyed by 
the next heir. Thus alfo in France, under the old con- 
flitution, 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 dilpofal at 
twenty-five, and the daughters at twenty. And by the 
marriage-a£l, viz. 26 Geo. II. c. 33, it is enabled, that all 
marriages celebrated by licenfe (for banns (uppofe notice), 
where either of the parties is under twenty-one, not being 
a widow or widower, (who are fuppofed emancipated,) 
without the confent of the father, or, if he be not living, 
of the mother or guardians, (hall be abfolutely void. 
However, provifion is made, where the mother or guardian 
is non compos, beyond fea, or unreafonably froward, to 
difpenfe with fuch confent, at the difcretion of the lord 
chancellor; but no provifion is made, in cafe the father 
fliould labour under any mental or other incapacity. A 
fourth incapacity is want of reafon. It is provided by 
15 Geo. II. c. 30. that the marriage of lunatics, and per- 
fons under phrenzies (if found lunatics under a commif- 
iion, or committed to the care of truliees by any aft of 
parliament), before they are declared of found mind by 
the lord chancellor, or the majority of fuch truftees, (hall 
be totally void. 
By the ancient law of England, if any Chriftian man 
did marry with a woman that was a Jew, or a Chriftian 
■woman did marry with a Jew, it was felony, and the party 
fo offending lhould be burnt alive (3 Inft. 89) ; or, as the 
author of Fleta fays, buried alive. But, when both parties 
are Jews, they are allowed to marry ; and are not under 
the reftraints of the ftatute of 26 Geo. II. c. 33. By the 
civil law the woman is forbidden to marry again within 
the year of mourning, unlefs with a fpecial difpenfation 
from the prince; by reafon of the uncertainty to which 
hufband the ilfue may belong, and becaule a reverential 
mourning and pious regard to the memory of her de- 
ceafed hufband are in decency expected. Wood.Civ. L. 124. 
2 Domat. 126. And lord Coke (ays, for the avoiding of 
fuch like inconveniences, this was the law before the 
conqueif: “Let every widow continue unmarried for 
twelve months; and, if (lie dial 1 marry, let her lofe her 
dower.” 1 Injl. 8. But the divine and the canon law 
leaves no fuch injunctions. Alio, by the common law of 
England, a widow is not prohibited from marrying at 
any time after her hufband’s death. If a woman many 
fo foon after the death of her hufband that the child may 
belong to either father, it is faid the child may choo/e his 
father. Co. Litt. 8 a. 
Laltiy, the parties tnnft not only be willing and able to 
contract, but mud actually contract themfelves in due 
form of law, to make it a good civil marriage. Any con¬ 
tract made, per verba de prafenti, or in 'words of the pre- 
fent tenfe, and in cafe of cohabitation per verba de fulu.ro 
alfo, between perlons able to contract, was before the 
marriage-aft deemed a valid marriage to many purpofes, 
and the parties might be compelled in the fpiritual courts 
to celebrate it in facie cccUfia . But thefe verbal contracts 
are now of no force. 
Marriages by Romifh prielts, vvhofe orders are acknow¬ 
ledged by the church of England, are deemed to have the 
effects of a legal marriage in fome infiances ; but marri¬ 
ages ought to be folemnized according to the rites of the 
church of England, to entitle the parties to all the pri¬ 
vileges attending legal marriage, as dower, thirds, &c. 
Marriages that are made in an ordinary courfe, are to 
be by a(king in the church, and other ceremonies appoint¬ 
ed by the Book of Common Prayer. 2 & 3 Ed. VI. c. 21. 
By the ordinances of the church, when perfons are to be 
married, the banns of matrimony (hall be publilhed in the 
church where they dwell three feveral Sundays, or holi¬ 
days, in the time of divine fervice; and if, at the day ap¬ 
pointed for their marriage, any man do allege any impe¬ 
diment, as pre-contracf, confanguinity or affinity, want 
of parent’s confent, infancy, &c. why they lhould not be 
married, (and become bound with fufficient (ureties to 
prove his allegation,) then the folemnization mult be de¬ 
ferred until the truth is tried. And no minilter (hall ce¬ 
lebrate matrimony between any perfons without a faculty 
of licenfe, except the banns of marriage have been firlt 
publilhed as direfled, according to the Book of Cornmou 
Prayer, on pain of fufpenfion for three years; nor (hall 
any minilter under the like penalty, join any perfons in. 
marriage, who are fo licenfed, at any unfeafonable times, 
or in any private place, &c. Canon 62. Alfo, on the grant¬ 
ing of licenfes, oath is made, and bond is to be taken, 
that there are no impediments of pre-contraCt, confan- 
guinity, &c. nor any l'uit or controverfy depending in any 
ecclefiaftical court touching any contract of marriage of 
either of the parties with any other ; that neither of them 
is of better e(tate than is fuggefted ; and that the marriage 
be openly folemnized in the parilh-church wdiere one of 
the parties dwelleth, or the church mentioned in the li¬ 
cenfe, between the hours of eight and twelve in the morn¬ 
ing. Licenfes to the contrary ("hall be void ; and the 
parties marrying are fubjeCt to punifliment, as for clan- 
deltine marriages. Can. 102. 
But, by fpecial licenfe or difpenfation from the arch- 
biffiop of Canterbury, marriages, efpecially of perfons 
of quality, are frequently in their own houfes, out of ca¬ 
nonical hours, in the evening, and often folemnized by 
others in other churches than where one of the parties 
lives, and out of time of divine fervice. Sc c. 
Marriages are prohibited in Lent, and on fafting-days, 
becaufe the mirth attending them is not fuitable to the 
humiliation and devotion of thole times; yet perfons 
may marry with licenfes in Lent, although the banns of 
marriage may not then be publilhed. Formerly, during 
the eltabljfhment of the catholic religion in thefe king¬ 
doms, prielts were retrained from marriage, and their 
ifiue accounted baftards, See. and the flat. 31 Hen. VIII. 
c. 14. made fuch marriages felonious. But, on the Refor¬ 
mation, laws were made, declaring that the marriage of 
prielts fnould be lawful, and their children legitimate, 
2 0 3 Ed. VI. c. 2i. But this (fatute, like all other re¬ 
forms in the church, was repealed by queen Mary, and 
was not revived again till 1 Jae. I. c. 25. The clerks in 
chancery, though laymen, were not allowed to marry, 
till (tat. 14 & 15 Hen. VIII. c. 8. And no lay-doCtof 
of civil-law, if he was married, could exercife any eccle- 
iialtical jurifdiition, till Hat, 27 Hen, VIII, c. 7. 
