CONTRACT OF Stat. 6 & 7 Gul. 4. c. 85. s. 42. Marriages void if unduly 3. Or knowingly and wilfully consenting to the solemnisation of marriage by a person not being in holy orders. By stat. 6 & 7 Gul. 4. c. 85. s. 42. and stat. 7 Gul. 4. c. 1., after June 30th, 1837, marriages of persons knowingly and wilfully intermarrying under the provisions of that act in any other place than the church, registered building, office, or other place specified in the notice and certificate, or without with the know- due notice to the superintendent registrar, or without certificate duly issued, or without licence, if a licence be necessary under that act, or in the absence of a registrar, or superintendent registrar, where his presence is necessary under that act, are declared to be null and void. solemnised ledge of both parties. Consanguinity. By the ecclesiastical law, no marriage is voidable after the death of either of the parties. Consanguinity, also, renders a marriage void. (1) No marriage is voidable by the ecclesiastical law after the death of either of the parties (2); marriages procured by force and restraint, or fraud, have been held void (3); and in Sullivan v. Sullivan (4) Sir William Scott said, that the Court might annul a marriage procured by a conspiracy, if a state of disability, creating want of reason and volition, amounting to an incapacity to consent, were thereby produced. THE STATUTES BANNS AND 2. THE STATUTES RELATING TO BANNS AND MARRIAGES. The following is a tabular statement of the principal statutes applicable to banns and marriages : U.K. Ireland, act for marriages in Ireland, and for register-} ing such marriages Amended by Laws respecting the solemnisation of marriages, amend ing Amended by Licences, rendering valid marriages solemnised by, Lunatics, preventing marriages of Matrimonial contacts, extending to Ireland the provi- 51 Geo. 3. c. 37. 58 Geo. 3. c. 81. Newfoundland, regulating the celebration of marriages 57 Geo. 3. c. 51. in Repealed, and other provisions made by (1) Vide post, 710 tit. LEVITICAL AND PROHIBITED DEGREES; et etiam stat. 32 Hen. 8. c. 38, Stephens' Ecclesiastical Statutes, 271, 272. Stat, 5 & 6 Gul. 4. c. 54. Ibid. 1647-1652. 5 Geo. 4. c. 68. Ingram v. Wyatt, (2) 1 Inst. 83. (a). 1 Hagg. 414. (3) Harper v. Morris, 2 Consist. 436. (4) Ibid. 246. Presbyterian marriages, confirmed Registers of marriages in England, for better regulating52 Geo. 3. c. 146. and preserving Amended by Registering of marriages in England, an act for Suspended until June, 1837, by Amended and explained by Residence, for the solemnisation of marriages near the, of the parties Roman Catholic clergymen celebrating marriages contrary to law, repealing penal enactments against Roman Catholic priests and ministers not of the established church in Scotland, amending the laws relative to marriages celebrated by 3 & 4 Vict. c. 72. 4 & 5 Gul. 4. c. 28. 1 5 & 6 Vict. c. 113. U.K. E. } Saint Ann's Chapel, Wandsworth, rendering valid marriages solemnised in Saint Clement's Church, Oxford, rendering valid certain marriages solemnised in Saint Petersburgh, declaring valid marriages solemnised of marriages celebrated abroad, obviating of marriages solemnised in certain churches of certain marriages, confirming; and alter- of marriages of Quakers and Jews solem- 4 Geo. 4. c. 91. THE STATUTES RELATING TO BANNS AND MARRIAGES. 3. MARRIAGE OF MINORS. Where there is not the consent of both parties, it is no marriage. (1) Therefore they who give girls unto boys in their infancy (2) do nothing (3) unless both parties shall consent after they come to the age of discretion. (4) Therefore we do prohibit, that from henceforth no persons, inhibemus ne de cetero aliqui, &c., shall be joined together, where both or either of the parties (1) This constitution is taken out of the decretals (c. 30. q. 2. and x. 4. 2. 2.), and was from thence transferred into the body of the English laws, in the council at Westminster, A. D. 1175. Gibson's Codex, 415. (2) Girls unto boys in their infancy: That is, under the age of seven years. Lyndwood, Prov. Const. Ang. 272. (3) Do nothing :-That is, as to the bond of matrimony; nor even as to espousals, unless after the seventh year it appear, either by word or deed, that they continue in the same mind; for then, from such willingness or consent, espousals do begin between them; and if after the seventh year complete, both parties continue in the same mind, this is sufficient as to espousals. Ibid. (4) Unless both parties shall consent after they come to years of discretion: -"The time MARRIAGE OF Where there is not the conparties there is no marriage, sent of both MARRIAGE OF shall not have arrived to the age appointed by the laws and canons(1), MINORS. unless such conjunction shall be dispensed withal in cases of necessity (2), for the public welfare. (3) Canon 100. None to marry under twentyone years without con sent of parents or guardians. The reasons why the civil law required children to have the consent of their parents for their marriages. By canon 100. " no children under the age of twenty-one years complete, shall contract themselves or marry without the consent of their parents, or of their guardians and governors, if their parents be deceased." Marriages that are made contrary to the consent of parents, are pronounced to be invalid both by the canon and civil law; and the church did sometimes anathematise such as married without the consent of parents. But yet when sons and daughters arrive at a competent age, and are endowed with the use of strong reason, they may of themselves contract marriage without this consent: for it is reasonable that children should be left at liberty in nothing more than in marriage, because their future happiness in this life depends upon it. By the civil law, indeed, an emancipated son might have contracted marriage without his father's consent: but a son, under the power of his father, could not do it without his father's approbation. And as children owe a reverential obedience to their parents, sons at this day under twenty-five years of age, and daughters under twenty, are, in Holland and other countries, governed by the civil law, forbidden to marry without their parents' consent. But if they exceed such respective ages, the bare dissent of parents, without a sufficient cause, is not a legal impediment to hinder them from contracting marriage. (4) By the civil law, as fixed by the Emperor Justinian, the previous consent of those parents in whose paternal power the children were, was necessary to enable them to contract matrimony. (5) The necessity of this consent arose from two sources; 1. from the general reverence due from children to parents, which is a principle common to all nations; 2. from the nature and rights of that patria potestas, which was peculiar to the Roman system of jurisprudence. Hence it is very properly said in the Institutes (6), that the consent of parents, et civilis et naturalis ratio suadet. If the child was a female, by the contract of marriage she passed from the power of her father or grandfather, to that of her husband or his progenitor. The consent of her parent, therefore, was necessary to a measure which deprived him of so important a right. Sons, indeed, remained subject to (1) Age appointed by the laws and canons : -Which, as to espousals (as previously stated), is the age of seven years, when infancy ends, both in the one party and in the other; and which, as to finishing the contract, is the age of twelve in the woman, and of fourteen in the man. Lyndwood, Prov. Const. Ang. 272. In this respect the canon and civil law agree. A primordio ætatis sponsalia effici possunt, si modo id, fieri ab utraque personâ intelligatur; id est, si non sint minores quam septem annis. (Dig. 23. 1. 14.) Justinian, in defining who may contract matrimony, requires that the parties be masculi quidem puberes; fœminæ autem viri potentes (1 Inst. 10.), having before declared fœminæ post impletos duodecim annos omnimodo pubescere judicantur, et mares post excessum quatuor decim anno rum puberes existimentur. (Cod. 5. 60. 3.) (2) In cases of necessity: — Of which ne cessity the diocesan, without whose licence they ought not to contract matrimony, shall be the judge. Lyndwood, Prov. Const. Ang. 272. (3) For the public welfare:—As where two princes conclude a peace, and for the more assured confirmation thereof match their children in marriage: this marriage the laws do tolerate as lawful, being made upon such urgent cause, although otherwise for divers wants the same were lawful. Swinb. s. 7. (4) Ayliffe's Parergon Juris, $62. 66 (5) Nuptiæ consistere non possunt, nisi consentiunt omnes, id est, qui coeunt, quorumque in potestate sunt."Dig. 1. 23. tit. 2. s. 2. cod. 5. tit. 8. s. 25. (6) 1.10. in proem. MINORS. paternal power notwithstanding their marriage; but here, again, reasons MARRIAGE OF peculiar to the civil law rendered the consent of the parent requisite ; for the law, at the same time that it gave power to the parent, bestowed very important rights on the children while they remained in that power, they being sui et necessarii heredes. It therefore considered it as a very great hardship to have such an heir imposed on the head of the family against his consent. (1) These latter reasons do not apply to the jurisprudence of those nations who derive their origin from the Germans, to whom this patria potestas was unknown, and with whom the marriage of children of either sex operated as an emancipation from paternal authority. (2) In Horner v. Horner (3) Sir William Scott observed, "Taking it to be ILLEGITIMATE MINORS. sufficiently settled that moral restraints do attach upon natural consanguinity, yet certainly it is not to be expected that the absolute necessity of parental consent to the validity of the marriage contract is considered in law as of more than of positive and civil institution. Nothing belongs to the validity of that contract naturally (as far as it has usually been considered and treated by most human laws), but the consent of the parties themselves, if they are of an age, capable of executing the duties of that contract."..." Nothing can be more clear than that, by the universal matrimonial law of Europe before the Reformation, the consent of parents was not required de necessitate to the validity of the contract. (4) Upon this footing the matter continues in every country of Europe holding communion with the Church of Rome, except where regulations merely civil have, in later times, introduced a novel and peculiar law upon the subject. Upon this footing, the matter remained in many Protestant states after the Reformation; it so remained among ourselves till the time of the Marriage Act (5); and nothing can more clearly show than that very act, how much human law is in the habit of considering the interposition of the parent's consent as of civil institution only." ... "Nothing can more satisfactorily prove how much the matter has been treated and moulded as under the entire dominion of mere civil prudence."..." The want of such consent was, as the ecclesiastical lawyers expressed it, an impedimentum impeditivum, an impediment which threw an obstruction in the way of the celebration of the marriage; but not an impedimentum dirimens, an impediment which at all affected the validity of the marriage, if it was once solemnised. "As to the consent of guardians, it does not appear to have been much thought of, except in certain feudal relations, where the power of the guardians was carried to a very extravagant length, and for purposes pointing almost entirely to the interests of the guardians themselves." (6) In Horner v. Liddiard (7) the marriage of an illegitimate minor, after the death of the father with the consent of the mother, but without the consent of a legally appointed guardian, was under the following circumstances held to be invalid: - Harriet Liddiard was the natural daughter (1) 1 Inst. 11. 7. Dig. 4. 15. 12. s. 3. (2) Vide Heineccius, Elem. Jur. Germ. lib. 1. s. 164. 168.; Sand. Decis, lib. 1. t. 7. def 5. ; Vinicius ad Inst. 19. (3) Consist. 347. (4) Vide Pothier, tit. Marriage, p. 4. c. 1. (5) Stat. 26 Geo. 2. c. 33. (6) Vide etiam Fielder v. Fielder, 2 Con- Rex v. consent of guardians. Marriage of an illegitimate minor, with the consent of her mother, 3. 2. (7) 1 Consist. 347. MARRIAGE OF Of Sarah Liddiard, by John Whitelock, who was born September 12 MINORS. 1777. Mr. Whitelock died in 1788, and by his will appointed Sarah Liddiard and George Ashley his executors. He bequeathed certain parts of the consent of his personal property to his executors upon trust to put the same out but without an appointed guardian. Parental authority conti nues up to the time of marriage. How consent may be retracted. Non-consent must be proved. Period of full age. Consent before at interest until Harriet Liddiard, whom he acknowledged in his will to be his natural child, should attain the age of twenty-one years, or be married with the consent and approbation of the said Sarah Liddiard and George Ashley, or the survivor of them; and he gave the tuition and care of her during her minority to his executors. On the 7th of March, 1796, a marriage was solemnised between Thomas Strangeways Horner and Harriet Liddiard by licence, with the consent of Sarah Liddiard (George Ashley being then dead), who was described therein as a widow, and mother and guardian of Harriet Liddiard. After a full consideration of the circumstances of the case, the judge was of opinion that the marriage was not conformable to the stat. 26 Geo. 2. c. 33., and consequently was null and void. Consent may be retracted, since the parental authority continues up to the time of marriage. This principle, however, must be taken with reasonable limitation; for it cannot be maintained, that this power can be arbitrarily resumed at any moment; when consent has been actually given, it will be necessary that dissent should be afterwards distinctly expressed, and that it should be proved so to have been in the clearest manner. (1) A formal and written consent is not requisite, nor a personal knowledge of the party; that it must be given before the marriage is solemnised, and that the presence of the father at a marriage cured any defect arising from want of consent; and as stated by Sir William Scott, “to obviate the consequences which must be most unfavourable to the issue of the marriage in case of a sentence of nullity, the Court has, "in its construction of the statute, held, not without some controversy arising in other quarters, that it is necessary to prove the negative of consent together with the other circumstances relied on in the strongest terms.” (2) By the law of England, full age is when a person, either male or female, has attained to the age of twenty-one years complete. And accordingly, by stat. 26 Geo. 2. c. 33. s. 11. (repealed by stat. 3 Geo. 4. c. 75.), all marriages solemnised by licence, where either of the parties, not being a widower or widow, shall be under the age of twenty-one years, which shall be had without the consent of the father of such of the parties so under age (if then living) first had and obtained, or if dead, of the guardian or guardians of the person of the party so under age, lawfully appointed, or one of them; and if there shall be no such guardian, then of the mother, if living and unmarried; or if there be no mother living and unmarried, then of a guardian or guardians of the person appointed by the Court of Chancery, shall be void." Previously to stat. 26 Geo. 2. c. 33. consent was held valid if given by males stat. 26 Geo. 2. of fourteen and females of twelve years of age. (3) All the other statutes on c. 33. (1) Hodgkinson v. Wilkie, 1 Consist. 268. Smith v. Huson, Phil. 287. Cresswell v. Cosins, 2 ibid. 283. Sullivan v. Sullivan, 2 Consist. 241. Balfour v. Carpenter, 1 Phil. 221. Days v. Jarvis, 2 Consist. 173, (2) Ibid. (3) Arnold v. Earle, 2 Lee (Sir G. ), 531. 1 Inst. 33. (a), 78. (a). 2 ibid. 454. 9 ibid. 88, 89. antè, 701 in not. |