[r] Inst. 1. 10. 1.
[] Domat, of dowries §. 2. Montesq. Sp. L. 23. 7.
[t] Vinnius in Inst. l. 1. t. 10.
[] Nov. 115. §. 11.
4. A fourth incapacity is want of reason; without a competent share of which, as no other, so neither can the matrimonial contract, be valid. Idiots and lunatics, by the old common law, might have married[w]; wherein it was manifestly defective. The civil law judged 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]. This defect in our laws is however remedied with regard to lunatics, and persons under frenzies, by the express words of the statute 15 Geo. II. c. 30. and idiots, if not within the letter of the statute, are at least within the reason of it.
[w] 1 Roll. Abr. 357.
[x] Ff. 23. tit. 1. l. 8. & tit. 2. l. 16.
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[y]. Neither is any marriage at present valid, that is not celebrated in some parish church or public chapel, unless by dispensation from the arch-bishop 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. It is held to be also essential to a marriage, that it be performed by a person in orders[z]; 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 celebration of marriage in the church[a]; before which it was totally a civil contract. And, in the times of the grand rebellion, all marriages 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 imbecillity, subsisting previous to the marriage.
[y] Stat. 26 Geo. II. c. 33.
[z] Salk. 119.