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In the course of nature it is scarcely possible that any one should ever marry his issue in the fourth degree. Between collaterals, all who are in the fourth, or any collateral degree, are permitted to marry. A husband is related to all the consanguinei of his wife, and vice versa, the wife to those of her husband. The husband and wife being considered as one flesh, those who are related to the one by blood, are related to the other by affinity.* Therefore; after his wife's death, a man cannot marry her sister, aunt, or niece. But the relations by affinity of the husband are not at all related to those of the wife. Two brothers therefore may marry two sisters, or a father and son may marry a mother and her daughter.
3. Some particular corporeal infirmities, also, disable parties from marriage. But such marriages not being void ab initio, but only voidable by sentence of separation, they are esteemed valid to all civil purposes, unless such separation is actually made during the life of the parties. For, after the death of either of them, the courts of common law will not suffer the spiritual courts to declare such marriages to have been void; because such declaration cannot now tend to the reformation of the parties.
4. Another legal disability is want of age in either or both of the contracting parties. This is sufficient to set aside all other contracts, on account of the imbecility of judgment in the contracting parties; a fortiori, therefore it ought to avoid this, the most important contract of any. 5. Want of the consent of parents or guardians is also a legal incapacity, if either of the parties be under twenty-one years of age. The church and the state both combine to punish the clergyman who should marry, after banns being published, any parties under that age, without having the express consent of parents or guardians. By the sixty second canon of the church of England, the bishop is authorized to suspend him from officiating for three years. And by several acts of parliament, penalties of one hundred pounds are laid on any clergyman who marries a couple either without publication of banns, (which are intended to give notice to parents and
* Gibson's Codex.
guardians,) or without a license, to obtain which the consent of parents or guardians must be sworn to. And by the statute 26 Geo. II. it is enacted that all marriages celebrated by license, (for banns suppose notice,) where either of the parties is under twenty-one, (and not being a widow or widower, who are supposed to be emancipated from paternal control,) without the father's consent, or, if he be not living, of the mother, or guardian, shall be absolutely void.
5. Want of reason is a most powerful incapacity, for without a competent share of it, as no other, so neither can the matrimonial contract be valid, idiots or people without due reason being always considered as minors, and therefore taken under the special protection of the law. And it is provided by act of parliament, 15 Geo. II., that the marriage of lunatics and persons under frenzies, (if declared lunatics under a commission, or committed to the care of trustees by any act of parliament,) before they are pronounced to be of sound mind by the lord chancellor or the majority of such trustees, shall be totally void. Lastly, the parties must not only be willing and able to contract, but must actually contract themselves in due form of law, to make it a good civil marriage. In England no marriage is at present valid, unless it be celebrated in some parish church or public chapel, except a dispensation be procured from the archbishop of Canterbury. It must also be preceded either by the publication of the banns by the parish minister in the middle of the public service in the forenoon, or by license from the spiritual judge. And it is also indispensable, that the marriage ceremony be performed by a person in holy orders.
As the law now stands, therefore, we may upon the whole collect, that, by the temporal law, no marriage is ipso facto void, that is celebrated by a person in holy orders,-in a parish church or public chapel, or elsewhere by a special dispensation,-in pursuance of banns or a license-between single persons,-consenting,-of sound mind,-and of the age of twentyone years. And no marriage is voidable, that is, can be dissolved by the ecclesiastical law, after the death of either of the parties; nor during their lives, unless for the canonical impediments of precontract, (if that still exists)-of consanguinity, or relation by blood-of affinity or relation by marriage or coporeal imbecility, if it subsisted previous to the marriage.*
The Confession of Faith of the church of Scotland, chap. xxiv. sec. 4, says, "Marriage ought not to be within the degrees of consanguinity or affinity forbidden in the word; nor can such incestuous marriages ever be made lawful by any law of men, or consent of parties, so as those persons may live together as man and wife. The man may not marry one of his wife's kindred nearer in blood than he may of his own, nor the woman of her husband's kindred nearer of blood than her own."
* Blackstone's Commentaries.
Cousins-german are not forbid to marry by any law of God or man, except the pope's canon law, which is happily not now in force as to this particular, being for ever broken up by the 32 of Henry VIII. And if cousins-german are not prohibited, then they who are more remotely related cannot be under any restraint, notwithstanding that by the same popish canon law, not only real relations were prohibited from contracting marriage, but also imaginary ones. For instance, according to the absurd canons of the papists, any man and woman that had stood as sureties for the same child, or had at its baptism laid their hands on it, in order to take it out of the font when it was dipped, if such were the custom, were prohibited from marrying together. Nay, to such an extreme did papists carry this absurdity, that the prohibition extended to the person who baptized, to his sons and daughters, and to the father and mother of the person who was baptized. For by popish casuistry it was pretended that by this means a spiritual affinity was contracted. Very little regard is to be paid to this popish law, and by none other is the marriage of cousins-german prohibited. It will be remembered in the interesting story of Tobit, in the apocryphal part of the Bible, that the angel which accompanied his son Tobias, said to him, "Brother, to-day we shall lodge with Raguel, who is thy cousin: he also hath one only daughter, named Sara. I will speak for her, that she may be given thee for a wife for to thee doth the right of her appertain, seeing thou only art of her kindred; and the maid is fair and wise. Now, therefore, hear me, and I will speak to her father; and when we return from Rages, we will celebrate the marriage: for I know that Raguel cannot marry her unto another according to the law of Moses, but he shall be guilty of death, because the right of inheritance doth rather appertain unto thee than to any other."+
Before any can be lawfully married in England, the banns are directed to be published on three several Sundays. This care of the church to prevent clandestine marriages, is as old as Christianity itself. Tertullian tells us, that in his time all marriages were accounted clandestine that were not published beforehand in the church. The design of these banns is, that the church may be satisfied that there is no lawful impediment why the parties may not be joined together in matrimony. Some parish officers have presumed to forbid banns, because the parties have been poor, and therefore likely to create a charge to the parish; or because the man has not been an inhabitant, according to the laws made for the settlement of the poor. But no person has authority to forbid the minister to proceed in publishing the banns, but the bishop only. If indeed the minister is satisfied that any of the before mentioned impediments
* Numb. xxvii. 8. xxxvi.
Tobit vi. 10, 11, 12.
exist, he ought in reason to forbear publication. If he proceed, under this knowledge, to marry the parties, he is liable to censure, if his knowledge of the impediment can be proved. But the minister is not at liberty to stop his proceeding, because any captious or malicious person, without just reason or authority, takes upon him to forbid him. Poverty is no more an impediment to marriage than riches. The kingdom can no more subsist without the poor than without the rich. And there can be no reason to doubt, but that banns may be published, and marriage solemnized, betwixt two persons that reside or sojourn within a parish, though they be not fixed inhabitants. For such persons, though strangers to the rest of the parish, are parishioners as to the minister; who is to visit them if they are sick, to give them the sacraments while living, and bury them when dead. And on their part, they are to perform the duty of parishioners to him; that is, to pay tithes and offerings, if there are any to be demanded. They are parishioners in all respects, except only, that if they fall into poverty, they do not enjoy the benefits of the poor laws. Neither does the law say, that any man is made liable to be kept by a parish, because he was married in it by banns: nor does it appear that these temporal laws, relating to the poor, were intended to alter the laws of the church, which both by custom and canon has all along permitted and required persons to have the banns published, and the marriage celebrated, where the parties dwell, or are commorant. And the rubric before the office of matrimony is to the same purpose: "if they dwell in diverse parishes,”—“ si incolunt in diversis paræcis," says the old Latin translation; "si vivunt," says the new; but in publishing the banns, the minister may cautiously say, " N of this parish sojourner.”
Some clergymen have been summoned and corrected in the spiritual courts for solemnizing marriages in churches where the banns were not asked, and to which the parties married did not belong as parishioners; although they had a certificate of the banns being published, under the hand of the minister or ministers to whose parishes they belonged. This was forbid by ancient canons, as well as by the sixty-second canon of the church of England. The license of the curate, however, to whose parish the parties belonged, was sufficient; at same time the curate must do more than certify the publication of banns; he must expressly, under his hand, give the parties leave to be married in another parish church, and also to the curate of that other church to marry them. And indeed, by the constitution of archbishop Peckham, the curate of any parish may license his parishioners to communicate in another parish church.
By both ancient and modern canons, it was well provided that marriages should be celebrated in facie ecclesiæ, in the face of the church, that is, in time of divine service; but this practice is, as if by universal consent,
laid aside. Yet in matrimonial cases tried before the consistory court, the judge asks whether, during the time the marriage in question was solemnized, the church doors were open. It was an ancient and very good custom, and which still generally prevails in England, that marriages should not be celebrated in any other church than that to which the woman belongs as a parishioner; and therefore the ecclesiastical law allows a fee to the clergyman of that church, whether she be married there or not. And this fee was expressly reserved for him by the words of the license, according to the old form; but it is said that this has been refused in the temporal courts, because it is generally claimed by virtue of the canon law, which is now abrogated; whereas, were it demanded as due by prescription, or immemorial custom, within such a parish or diocese, it is reasonable to suppose that the temporal courts would allow of this plea; for custom is common law.
The canons of the church of England do not allow any marriages to be celebrated in private houses, but only in the parish church, and that too only between the hours of eight and twelve in the forenoon. In Scotland marriages take place almost invariably in private houses, and at any hour of the day. The church of England allows none but a lawful minister to tie the bonds of matrimony. Because marriage is the bond and foundation of all society, and it ought therefore to be made sacred, and adopted into religion, it being the interest of mankind that it should be kept inviolable. Above all, because God himself married the first man and woman, and blessed them, and made a covenant with them; and the lawful minister is God's representative or ambassador, to take securities, and bless the parties in God's name. The church allows of no clandestine marriages, and for the better security against such, she orders that all marriages shall be celebrated in the daytime, for those who mean honestly and honourably need not be ashamed and fly the light. And because most people are more serious in the morning, it is appointed by the sixty-second canon that all marriages shall, as already noticed, be solemnized between the hours of eight and twelve; and formerly it was required that the bride and bridegroom should both be fasting when they made this religious vow in the presence of God, by which means they were preserved from being incapacitated by drink from making a wise and voluntary choice. And that this rite might be still more solemn, it is expressly required in England that all marriages be celebrated in the church, the place of God's especial presence, before whom they make this religious covenant at his holy altar. It is also enjoined to be celebrated in the presence of their friends and neighbours, who ought to attend on this solemnity to testify their consent, and to join with the minister for a blessing on the parties. And lastly, I may briefly observe, that the bridegroom and bride, being thus attended