[the second marriage is to all intents and purposes void (k); 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, that "duas uxores eodem tempore habere non licet" (l).

2. The next disability is want of age. This is sufficient to avoid all other contracts, on account of the imbecility of judgment in the parties contracting; à fortiori, therefore, it ought to avoid this, the most important contract of any.] The age for consent to matrimony is fourteen in males, and twelve in females (m). If the male be under fourteen, or the girl under twelve, the marriage, though not absolutely void (n), (supposing it celebrated with due solemnities (o), is inchoate only and imperfect; and either of them, upon coming to the age of consent aforesaid, may disagree and declare the marriage void (p); in addition to which it is to be observed, that [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;] and so it is vice versâ, when the wife is of years of discretion, and the husband under (g); [but if at the age of consent they agree to continue together, they need not be married again.] The doctrine of disability in respect of age is founded, we may observe, on the civil law (r). [The canon

(k) Bro. Ab. tit. Bastardy, pl. 8; Cro. Eliz. 858; 1 Salk. 121; R. v. Harborne, 2 Ad. & El. 540. As to the offence of bigamy, vide post, bk.

VI. C. XII.

(7) 1 Inst. 1, x. 6.

(m) Co. Litt. 79 a; 1 Hale, P. C. 17. Sed vide post, p. 255, as to the case of a marriage where either party (not being a widow or widower) is under twenty-one, and their parent or guardian dissents.

(n) It is said in Burn's Ecc. L. tit. Marriage, I., that if either party be

under seven, it is a nullity; and that the civil and the canon law in this respect agree; et vide Reeves's Hist. Eng. Law, vol. iv. p. 53. It does not appear, however, that the common law makes any distinction of this kind. Vide Co. Litt. 33 a.

(0) Vide Co. Litt. by Harg. 79 b, n. (1). As to these solemnities, vide post, p. 255.

(p) Co. Litt. 79 a, 79 b; Bac. Ab. Infancy, A.

(9) Ibid.; 1 Bl. Com. 436.
(r) Leon. Constit. 109.

[law pays greater regard to the constitution than the age of the parties; holding that if they are habiles ad matrimonium, it is a good marriage, whatever their age may be (s).]

What is above stated on the subject of the age for matrimony, is to be understood of the actual marriage contract, by which the parties become man and wife; for a promise to marry in futuro, (which is no marriage by our law, but which, like other contracts, will give a right of action for damages in case of its violation (t),) is not binding, unless the party making the promise be of the full age which the law provides for other cases of contract (u), viz. twentyAnd where there are mutual promises to marry between two persons, one of the age of twenty-one, and the other under that age, the first is bound by the contract, so as to be liable to an action if it be broken; but on the side of the minor, it is voidable (x).

one.

3. A third incapacity is [want of reason; without a competent share of which, as no other, so neither can the matrimonial contract, be valid (y).] And by our law, it is accordingly established that the marriage of a lunatic, not being in a lucid interval, is absolutely void (z). [But as it might be difficult 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) (a), the statute 15 Geo. II. c. 30 (b)] has also specifically [provided that the marriage of lunatics and persons under phrenzies (if found lunatics under a commission, or committed to the care of trustees by any act of parliament), before they are declared of sound mind by

(s) Decretal. 1. 4, tit. 2, qu. 3.

(t) Vide sup. p. 57. See Wild v. Harris, 7 C. B. 999, as to the consideration necessary to support this action.

(u) Co. Litt. by Harg. 79 b, n. (2). (x) Holt v. Ward, Str. 937; Bruce v. Warwick, 6 Taunt. 118; Warwick

v. Bruce, 2 Mau. & Sel. 305.
(y) 1 Roll. Ab. 357.

(z) Morrison's case, coram Deleg. (a) See Private Acts, 23 Geo. 2, c. 6.

(b) Confirmed and extended to Ireland, by 51 Geo. 3, c. 37.

[the Lord Chancellor or the majority of such trustees, shall be totally void.]

4. A fourth incapacity is in respect of proximity of relationship; that is, being within the prohibited degrees of consanguinity or affinity. [By stat. 32 Hen. VIII. c. 38 (c), 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 in the times of popery, a great variety of degrees of kindred were made impediments to marriage, which impediments however might be bought off for money) it is declared by the same statute that nothing (God's law except (d)) shall impeach any marriage without the Levitical degrees (e).] By the effect of this statute, the only marriages which are now illegal in respect of proximity of degree, are the following,-those between persons in the ascending and descending line in infinitum (ƒ),—and those between collaterals to the third degree inclusive, according to the mode of computation in the civil law (g), which reckons the sum of the degrees from, (but exclusively of,) one of the persons related, up to the

(c) As to the history of this Act, vide Reeves's Hist. Eng. L. vol. iv. p. 220.

(d) As to these words, vide Vaughan, 220, 305; 2 Inst. 687. They relate to the law of nature, which condemns commixtures in the direct line of descent in infinitum, though they are not noticed among the express prohibitions in Levit. c.

xviii.

(e) In this statute the prohibited degrees are not enumerated; but there is some specification of them in the 25 Hen. 8, c. 22, and 28 Hen. 8, c. 7. It is doubtful whether these two last statutes are in force; Burn, Ecc. Law, tit. Marriage, 1. But so far as they are, they seem only to be

declaratory of the Levitical law; Christian's Blackstone, vol. i. p. 435. (f) Vaughan, 232; Gibs. Cod. 413; Burn, tit. Marriage, I.; Extrav. de Consanguin. &c. Can. 8; Grot. de J. B. et P. 1. 2, c. 5, sect. 12.

(g) Vaughan, 218. See R. v. Chadwick, 11 Q. B. 173. The prohibitions in Leviticus, in regard to collateral relationship, all apply to persons who, according to the computation of the civilians (vide sup. p. 206), would be within the third degree; and the prohibitions in the early Christian Church were exactly co-extensive. The computation of the canonists is different, it will be recollected, from that of the civilians, vide sup. p. 206.

as to

common stock, and so down to the other person which, however, it is to be understood that the prohibitions in the case of collaterals extend not only to consanguinei, or those related by blood, but to affines, or those related by marriage. Thus a man can marry neither his sister nor his wife's sister (h), for both are related to him in the second degree; nor his sister's daughter, nor wife's sister's daughter (i), for both are in the third degree; but he may marry his first cousin, for she is in the fourth degree (k). The consanguinei of the wife, it may be remarked, are always related by affinity to the husband, and the consanguinei of the husband to the wife, but on the other hand, the consanguinei of the husband are not at all necessarily related to the consanguinei of the wife. Hence two brothers may marry two sisters, or father and son a mother and daughter (1). Nor is the husband related to the affines of the wife, nor vice versa. Therefore a man may marry his wife's brother's wife (m). It is further to be observed, that the prohibitions as to collaterals extend to those related by the half blood only; and that they also apply, though one of the parties be a bastard; for notwithstanding this circumstance, which makes him nullius filius as to many civil consequences, the law recognizes his relationship to his natural parent, for moral purposes (n). The incapacity in respect of proximity of relationship was till lately a canonical only, and not a civil disability (o). But by statute 5 & 6 Will. IV. c. 54, all marriages thereafter celebrated between persons within the prohibited degrees of consanguinity or affinity, shall be absolutely void to all purposes whatever-which seems to bring the objection within the class of civil disabilities (p).

() Vaughan, 302; R. v. Chadwick, 11 Q. B. 173.

(i) Sir T. Raym. 464; Sir T. Jones, 191.

(k) See the Table of Degrees of Consanguinity, opposite to p. 206,

sup.

(1) 1 Bl. Com. 435, n. by Chr. (m) 1 Bl. Com. 435, n. by Chr. (n) Bac. Ab. Marriage, A. (0) Sir T. Raym. 464; R. v. Inhabitants of Wye, 7 Ad. & El. 771. (p) See Queen v. Chadwick, 11 Q. B. 173.

Parties labouring under none of these disabilities may proceed to contract themselves to each other in due form and ceremony. In what manner this contract is to be solemnized is a matter which formerly depended altogether upon the rules of the ecclesiastical law (1). And by that law it is required that there should not only be a mutual contract of espousal per verba de præsenti, or words in the present tense, but that it should be solemnized by a priest, without which it is considered as no complete legal marriage (m). But this last requisite [is merely juris positivi, 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 (n); before which it was totally a civil contract.]

The manner, however, of contracting this relation has long ceased to be governed by the ecclesiastical law, the formalities proper to the celebration of marriage having been imposed by the supreme authority of the legislature itself. The principal marriage Acts now in force are 4 Geo. IV. c. 76, and 6 & 7 Will. IV. c. 85 (0), of which we shall here treat in their order of date, and (on account of the importance of the subject) with some degree of minuteness. First, the statute of 4 Geo. IV. prescribes, (in conformity with the canon law,) the previous publication of banns (p) upon three successive Sundays, in manner therein

(1) See Reeves's Hist. Eng. L. vol. iv. pp. 52-65, where much information will be found as to the canonical jurisprudence on this subject.

(m) See Haydon v. Gould, 1 Salk. 119; 3 Burr. Sett. Ca. 232; R. v. Luffington, 1 Wils. 74; The Queen v. Millis, 10 Cl. & Fin. 534; Catherwood v. Caslon, 13 Mee. & W. 264; Beamish v. Beamish, 5 Ir. Ch. & Law Reports, 136.

(n) Moor. 770.

(0) There were two previous Acts VOL. II.

of 26 Geo. 2, c. 33, and 4 Geo. 4, c. 17, both of which are repealed by 4 Geo. 4, c. 76. The 6 & 7 Will. 4, c. 85, has been amended by 7 Will. 4 & 1 Vict. c. 22; 3 & 4 Vict. c. 72; and 19 & 20 Vict. c. 119.

(p) 4 Geo. 4, c. 76, s. 2. As to banns, vide Lyndw. 273, 274. As to the publication of banns in a wrong name, see R. v. Billinghurst, 3 Mau. & Sel. 250; R. v. St. Faith's, Newton, 3 Dow. & Ry. 348; R. v. Tibshelf, 1 Barn. & Adol. 190; R. v. Wroxton, 4 Barn. & Adol. 641. S