17

& 5 Ph. & M. c. 8. whosever marries any woman child under the age of sixteen years, without consent of parents or guardians, shall be subject to fine, or five years' imprisonment and her estate during the husband's life shall go to and be enjoyed by the next heir. The civil law indeed required the consent of the parent or tutor at all ages; unless the children were emancipated, or out of the parents' power: (o) and if such consent from the father was wanting, the marriage was null, and the children illegitimate, (p) but the consent of the mother or guardians, if unreasonably withheld, might be redressed and supplied by the judge, or the president of the province : (q) and if the father was non compos, a similar remedy was given. (r) These provisions are adopted and imitated by the French and Hollanders, with this difference, that in France the sons cannot marry withont consent of parents till thirty years of age, nor the daughters till twenty-five; 18 and in Holland, the sons are at their own disposal at twenty-five, and the daughters at twenty. (s) Thus hath stood, and thus at present stands, the law in other neighbouring countries. And it his lately been thought proper to introduce somewhat of the same policy into our laws by statute 26 Geo. II. c. 33. whereby it is enacted, that all marriages celebrated by licence (for banns suppose notice) where either of the parties is under twenty[438] one (not being a widow or widower, who are supposed emancipated), without the consent 20 of the father, or, if he be not living, of the mother or guardians, shall be absolutely void. a A like provision is made

o Ff. 25. 2. 2. & 18.

convictions for this offence.

p Ff. 1.5. 11.
q Cod. 5. 4. 1. & 20.
s Domat. of dowries, § 2. Montesq. Sp. L. 23, 7.

r Inst. 1. 10. 1.

from the archbishop; or shall marry them without a license, or publication of banns; he shall be guilty of felony, and shall be transported for fourteen years. And there have been instances of Christian. (17) The construction of the statute seems to be, that it shall also go to the next heir during the life of the wife, even after the death of the husband. 1 Brown. Cha. Rep. 23. But the contrary has been decided in the exchequer. Amb 73. Christian. (18) This is now altered to 25 in sons and 21 in daughters, and the consent of the father suffices. After those ages the parties may marry after three respectful, but ineffectual, endeavours to obtain consent of parents Code Civil. Livre 1. Title 5.

(19) This act is repealed by the 4 Geo. IV. c. 76. but the 16th section re-enacts the like provisions, viz." that the father, if living, of a party under 21 years of age, such party not being a widower or widow; or if the father be dead, the guardian of the person so under age lawfully appointed; or in case of no guardian, then the mother of such party, if unmarried; or if there be no mother unmarried, then the guardian of the person appointed by the court of chancery, if any shall have authority to give consent to the marriage, and such consent is thereby required for the marriage, unless there be no person authorized to give such consent."

It has been held that all marriages, whether of legitimate or illegitimate children, are within the general provisions of the marriage act, 26 Geo. 1. c. 33., which requires all marriages to be by banns or licence; and, by three judges, a marriage of an illegitimate minor, had by licence with the consent of her mother, is void by the 11th section. The words father and mother in that section meaning legitimate parents. Priestly v. Hughes, 11 East, 1. In the case of Horner v. Liddiard, reported by Dr. Croke, it was decided by sir William Scott, that bastards were bound by the 11th section of 26 Geo. II. c. 33. It follows that a marriage by licence, with the consent of either the putative father or mother, will not be a compliance with the marriage act, and therefore void; and the only methods by which the marriage of a natural child can be legally solemnized, are either after the publication of banns, or after the appointment of a guardian for the child by the court of chancery, and then the marriage may be performed under a licence with the consent of such guardian. 1 Roper, 340.

.Chitty.

(20) The court presumes consent, unless dissent be proved, 2 Phil. 222.; what sufficient evi dence of consent, Ì Phil. 299.

(21) Mr. Christian has the following note:-A matter of such importance deserves to be more particularly stated; the party under age marrying by licence, if a minor, and not having been married before, must have the consent of a father, if living; if he be dead, of a guardian of his person lawfully appointed; if there be no such guardian, then of the mother if she is unmarried; if there be no mother unmarried, then of a guardian appointed by the court of chancery. Mr. Christian suggests that the words lawfully appointed comprehend not only a guardian appointed by the father, and a guardian appointed by the court of chancery, but also, where such guardian can exist, a socage guardian, he being a guardian of the person of the ward appointed by the law itself. A guardian appointed by the will of a putative father, is not within the act. 2 Bro. C. C. 583. Horner v. Liddiard, Dr. Croke's Rep. 180.

23

as in the civil law, where the mother or guardian is non compos, beyond sea, or unreasonably froward, to dispense with such consent at the discretion of the lord chancellor: but no provision is made, in case the father should labour under any mental or other incapacity. Much may be, and much has been said, both for and against this innovation upon our ancient daws and constitution. On the one hand, it prevents the clandestine marriages of minors, which are often a terrible inconvenience to those private families wherein they happen. On the other hand, restraints upon marriages, especially among the lower class, are evidently detrimental to the public, by hindering the increase of the people; and to religion and morality, by encouraging licentiousness and debauchery among the single of both sexes, and thereby destroying one end of society and government, which is concu bitu prohibere vago. And of this last inconvenience the Roman laws were so sensible, that at the same time that they forbad marriage without the consent of parents or guardians, they were less rigorous on that very account with regard to other restraints: for if a parent did not provide a husband for his daughter, by the time she arrived at the age of twenty-five, and she afterwards made a slip in her conduct, he was not allowed to disinherit her upon that account, qui non sua culpa, sed parentum, id commisisse cognoscitur." (u)

4. A fourth incapacity is want of reason; 24 without a competent share of which, as no other, so neither can the matrimonial contract, be valid. (w) It was formerly adjudged, that the issue of an idiot was legitimate, and consequently that his marriage was valid. A strange determination! since consent is absolutely requisite to matrimony, and neither idiots nor lunatics are capable of consenting to any thing. And therefore the civil law judg ed much more sensibly when it made such deprivations of reason a previous impediment; though not a cause of divorce, if they happened after marriage. (x) And modern resolutions have adhered to the [439] reason of the civil law, by determining (y) that the marriage of a lunatic, not being in a lucid interval, was absolutely void. 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 (2) reasons) the statute 15 Geo. II. c. 30. has 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 the lord chancellor or the majority of such trustees, shall be totally void. 25

u Nov. 115. § 11.

w 1 Roll. Abr. $57. y Morrison's case coram delegat.

(22) See the last act, 4 Geo. IV. c. 76. s. 17.

x Ff 23. tit. 1. l. 8. & tit. 2. l. 16. z See private acts 23 Géo. II. c. 6.

(23) But a provision for this will be found in the 4 Geo. IV. c. 76. sec. 17. by which it is enacted, that in case the father of the party under age be non compos mentis, or the guardian or mother, or any of them whose consent is made necessary, in the 16th section mentioned, to the marriage of such party, be non compos mentis, or in parts beyond the seas, or shall unreasonably, or from undue motives, withhold consent to a proper marriage, then the party may apply by petition to the lord chancellor, lord keeper, or the lords commissioners of the great seal of Great Britain for the time being, master of the rolls, or vice-chancellor of England; and if it appear proper, they shall declare the same to be so, and such declaration shall be taken to be as effectual as if the father, guardian or guardians, or mother of the person so petitioning, had consented to such marriage. Chitty.

(24) Administration of the effects of a wife was refused to the husband, on the ground the t his marriage had been illegally contracted when his alleged wife was non compos. 2 Phil. Ec. Cas. 69. See also lord Portsmouth's case, and 1 Roper, 338.

(25) And the provisions of this act are confirmed by the 51 Geo. III. c. 37. in the same words, extending the act to the marriage of lunatics found so under a commission under the great seal of Ireland.

Chitty

26

Lastly, the parties must not only be willing and able to contract, but actually must contract themselves in due form of law, to make it a good civil marriage. Any contract made, per verba de praesenti, or in words of the present tense, and in case of cohabitation per verba de futuro also, between persons able to contract, was before the late act deemed a valid marriage to many purposes; and the parties might be compelled in the spiritual courts to celebrate it in facie ecclesiae. But these verbal contracts are now of no force to compel a future marriage. (a) Neither is any marriage at present valid, that is not celebrated in some parish church or public chapel, 2 unless by dispensation from the archbishop of Canterbury. It must also be preceded by publication of banns, or by licence from the spiritual judge. Many other formalities are likewise prescribed by the act; the neglect of which, though penal, does not invalidate the marriage.

29

31

27

is held to be also essential to a marriage, that it be performed by a person in orders; (b) though the intervention of a priest to solemnize this contract is merely juris positivi, and not juris naturalis aut divini: it being said that pope Innocent the Third was the first who ordained the celebra

tion of marriage in the church; (c) before which it was totally a [440] civil contract. And in the times of the grand rebellion, all mar

riages were performed by the justices of the peace; and these marriages were declared valid, without any fresh solemnization, by statute 12 Car. II. c. 33. But, as the law now stands, we may upon the whole collect, that no marriage by the temporal law is ipso facto void, that is 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,-consenting,-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 it in case of widowhood. And no marriage is voidable by the ecclesiastical law, after the death of either of the parties, nor during their lives, unless for the canonical impediments of pre-contract. if that indeed still exists; of consanguinity; and of affinity, or corporal imbecility, subsisting previous to the marriage.

à Stat. 26 Geo. II. c. 35.

32

33

(26) Fraud will sometimes be a ground for annulling the marriage; as on account of banns having been published, or licence obtained, under false names. 1 Phil. Ecc. C. 133. 298. 224. 230. 375. 2 Phil. 14. 104. 365.; but unless the name was assumed for the purpose of defrauding the other party, or the parents, the circumstance of the marriage being in a fictitious name will not invalidate it. 3 Maule & S. 250. 538. 1 Phil. 147. 2 Phil. 12. Error about the family or fortune of the individual, though produced by disingenuous representations, will not at all affect the validity of a marriage. 1 Phil. E. C. 137. Chitty.

(27) And the 4 Geo. ÏV. c. 76. repealing the 26 Geo. II. c. 33. in sec. 27. contains a similar

enactment.

(28) See post sec. 2 of 4 Geo. IV. c. 176. But see 6 Geo. IV. c. 92.

(29) Till the 2d & 3d Edw. VI. ch. 21, the clergy in England were prohibited to marry, and it was even made felony by statute; but the legislature, by the above statute, removed all previous restrictions, and gave them all the privileges enjoyed by the laity. Ed.

(30) But by the 22 sect. of 4 Geo. IV. c. 76. it is declared, that the marriage shall be void where parties wilfully marry in any other place than a church or public chapel wherein banns may be published (unless by licence), or without due publication of banns or due licence. 6 Geo. IV. c. 92. Chitty.

(31) See also Selwn. N. P. tit. Adultery, sect. 3. Burr. Set. Ca. 232. 1 Wils, 74. and see 21 and 22 sect. of 4 Geo. IV. c. 76. post. (32) 2 Phil. Ecc. C. 16.

(33) The 26 Geo. II. c. 33. was repealed by 3 Geo. IV. c. 75. The present marriage act is the 4 Geo. IV. c. 76. which contains many regulations calculated to ensure a due solemnization of marriage without fraud. A marriage is void where persons knowingly and wilfully marry in my other place than a church or chapel wherein banns may be lawfully published, unless by al licence; or knowingly and wilfully intermarry without due publication of banns, or

II. I am next to consider the manner in which marriages may be dissolved; and this is either by death, or divorce. There are two kinds of divorce, the one total, the other partial; the one a vinculo matrimonii, the other merely a mensa et thoro. 4 The total divorce, a vinculo matrimonii, must be for some of the canonical causes of impediment before mentioned; and those, existing before the marriage, as is always the case in consanguinity; not supervenient, or arising afterwards, as may be the case in affinity or corporal imbecility. For in cases of total divorce, the marriage is declared null, as having been absolutely unlawful ab initio; and the parties are therefore separated pro salute animarum: for which reason, as was before observed, no divorce can be obtained, but during the life of the parties." The issue of such marriage as is thus entirely dissolved, are bastards. (d)3 Divorce a mensa et thoro is when the marriage is just and lawful ab initio, and therefore the law is tender of dissolving it; but for some supervenient cause, it becomes improper or impossible for the parties to live together as in case of intolerable ill temper, or adultery in either [441] of the parties. For the canon law, which the common law follows

:

d Co. Litt. 285.

37

licence from a person having authority to grant the same, or knowingly and wilfully consent to solemnization of marriage by a person not being in holy orders. But in all other cases of fraud, or false swearing, or other irregularity, the marriage itself is valid, though the parties offending are liable to punishment, and a forfeiture of property.

The marriage act extends only to marriages in England. Marriages on elopements to Scotland seem to be valid, Bul. N. P. 113. and Dodson's Rep. of sir Wm. Scott's judgment on Dalrymple v. Dalrymple, and 1 Ves. & B 112. 114. 2 Haggard, 54. 1 Roper, 334 Selwyn N. P. Adultery, 3. 14. Marriages of British subjects in foreign countries are valid if made according to the laws of those countries. Herbert v. Herbert, 30 April 1819, in Consistory Court, 1 Roper, 337. The King v. Inhabitants of Brampton 10 East, 282. Lawtoor & P. v. Teesdale & Áor. 2 Marsh. 243. Lacon v. Higgins and Aor. 1 Dowl. & R Ni Pri. Rep. 38. So a marrage in Ireland, performed by a clergyman of the church of England, in a private house, was held valid, although no evidence was given that any licence had been granted to the parties. Smith v. Maxwell, Ryan & M.'s Ni. Pri. Rep. 80. As to the evidence to be adduced of a foreign marriage, see the same cases, and 1 Roper, 333.

(34) As to the means of obtaining these divorces in the ecclesiastical court, see post 3 vol. 94. (35) The impotency of the husband at the time of the marriage to consummate it, and still continuing, is ground for annulling it, though the husband was ignorant of his constitutional defects. 2 Phil. Ec. C. 10. Corporal imbecility may arise after the marriage, which will not then vacate the marriage, because there was no fraud in the original contract; and one of the ends of marriage, viz. the legitimate procreation of children, may have been answered: but no kindred by affinity can happen subsequently to the marriage; for as affinity always depends upon the previous marriage of one of the parties so related, if a husband and wife are not so related at the time of the marriage, they never can become so afterwards. Christian.

(36) But a sentence of divorce may be repealed in the spiritual court after the death of the parties. Co. Lit. 33. 244. 7 Co. 44. 5. Co 98 but see Cro. J. 186, 7. Co. 43.

(37) In these divorces the wife, it is said, shall receive all again that she brought with her; because the nullity of the marriage arises through some impediment; and the goods of the wife were given for her advancement in marriage, which now ceaseth: but this is where the goods are not spent; and if the husband give them away during the coverture without any collusion, it shall bind her: if she knows her goods are unspent, she may bring an action of detinue for them; but, as to money, &c. which cannot be known, she must sue in the spiritual court Dyer, 62.

This divorce enables the parties to marry again, and to do all other acts as if they had never been married. Com. Dig. Bar and Feme, C. I. and C. 7 Moore Rep. 666. Ca. 9, 10 1 Salk. 115. 6. Cro. Eliz. 908. 3 Mod. 71. Cro. Car. 463. And after this divorce, the liability of the husband for the debts of the woman does not continue. Gow. C. N. P. 10.

A sentence of divorce stands in force till reversed on appeal. 1 And. 185. 2 Lev. 169. 5 Co. 98. b. So a sentence for nullity of a marriage in causa jactitationis maritagii. Carth. 225. And if the parties die, an examination will not be allowed to prove an heir contrary. Cro. J. 186. 7 Co. 43. Chitty. Choses in action, not reduced to possession during coverture, remain the property of the wife, on a dissolution of the marriage either by the death of the husband, or a divorce a vinculo matrimonii. Legg v. Legg. 8 Mass. Rep. 99. Sodge v. Hamilton, 2. Serg. & Rawl 491. Ed.

(38) Ill temper alone seems not a sufficient cause for divorce. See the admirable observations of sir William Scott, in Evans v. Evans, 1 Haggard's Rep. 36.

in this case, deems so highly and with such mysterious reverence of the nuptual tie, that it will not allow it to be unloosed for any cause whatsoever, that arises after the union is made. And this is said to be built on the divine revealed law; though that expressly assigns incontinence as a cause, and indeed the only cause, why a man may put away his wife and marry another. (e) The civil law, which is partly of pagan original, allows many causes of absolute divorce; and some of them pretty severe ones (as if a wife goes to the theatre or the public games, without the knowledge and consent of the husband) (f): but among them adultery is the principal, and with reason named the first. (g) But with us in England adultery is only a cause of separation from bed and board: (h) for which the best reason that can be given is, that if divorces were allowed to depend upon a matter within the power of either of the parties, they would probably be extremely frequent; as was the case when divorces were allowed for canonical disabilities, on the mere confession of the parties, (i) which is now prohibited by the canons. (k) 40 However, divorces a vinculo matrimonii, for adultery, have of late years been frequently granted by act of parliament."

e Matt. xix. 9.
h Moor. 683.

f Nov. 117.

i 2 Mod. 314.

g Cod. 5. 17. 8. k Can. 1603. c. 105.

(39) But the husband and wife may live separate by agreement between themselves and a trustee; and such agreement is valid and binding, and may be sued upon, if it be not prospective in its nature as for a future separation, to be adopted at the sole pleasure of the wife, the parties being, at the time of making the agreement, living together in a state of amity. See Jee v. Thurlow. 2 Bar &C. 547. 4 Dowl. & R. 11 2 East, 283. 6 East, 244 7 Price, 577. 11 Ves. 529.

If after this agreement to live separate, they appear to have cohabited, equity will consider the agreement as waived, by such subsequent cohabitation. (1 Dowes Rep. 235 Moore, 874. 2 Peere W. 82. 1 Fonbl. 106. as notes, 2 Cox. Rep. 100. Bunb. 187 11 Ves 526. 537.) Or if the agreement being in consequence of the wife's elopement, the husband offer to take her again. (1 Vern. 52.)

But at law, the wife being guilty of adultery is no bar to a claim made by her trustee, under a separation deed, for arrears of annuity, there being no clause that deed should be void on that account 2 Bar. and Cres. 547. 4D & R. 11. S. C. Chitty.

(40) This is provided to prevent collusion. 2 Phil. 168, 9. 1 Haggard's Rep. 304. 2 ld. 189. 316. A husband cannot obtain a divorce in the ecclesiastical courts for the adultery of his wife if she recriminates, and can prove that he also has been unfaithful to the marriage vow. 1 Ought. 317. Burn. Ecc. L. Marriage, xi. And if after the injured party has knowledge that the crime has been committed he have cohabitation with his wife, he cannot obtain a divorce. Id. ibid. Chitty.

(41) For the purpose of obtaining this divorce by a bill in parliament, it is necessary that on the petition for the bill to the house of lords (where such bill usually originates), that an official copy of the proceedings and definitive sentence of divorce, a mensa et thoro in the ecclesiastical courts, at the suit of the petitioner, shall be delivered at the bar on oath. Upon the second reading of the bill, the petitioner must attend the house to be examined at the bar, if the house think fit, whether there is any collusion respecting the act of adultery, or the divorce, or any action for crim con.; and whether the wife was living apart from her husband under articles of separation. In all divorce bills must be contained a clause, prohibiting the offending parties from intermarrying with each other (but this clause is generally struck out in the committee and the act passed without it), and evidence must be given in the committee of the house of commons on the bill, that an action for damages has been brought against the seducer, and judgment for the plaintiff had thereon, or a sufficient reason given why such action was not brought, or judgment obtained. See the standing orders of the two houses. The proof of a verdict at law may be dispensed with, where the circumstances are such that the adultery of the wife can be proved by satisfactory evidence, and where at the same time it is impossible for the husband to obtain a verdict in an action at law. It was dispensed with in the case of a naval officer, whose wife had been brought to bed of one child, in his abscence upon duty abroad; and upon his return was far advanced in her pregnancy with the second, and where he could not discover the father. So in another case, where a married woman had gone to France, was divorced there, and had married a Frenchman. It would also be dispensed with, if the adulterer should die before the husband would obtain a verdict.

In cases of divorce for the adultery of the wife, the legislature an allowance out of the husband's estate, and for this most just, she may not be driven by want to continue in a course of vice.

always interferes to make her humane, and moral reason, that Per Best, J. 4. D. & R. 17.