§ t. CONSTITU full or half blood; by marriage or illicit intercourfe, quck niam in contrahendis matrimoniis naturale jus et pudor infpi MARRIAGE ciendus eft; and by affinity as well as confanguinity. TION OF -WHO MAY MARRY. At length, Alexander II, who mounted the papal throne in 1061, in a letter addreffed to all the bishops and judges of Italy, prohibited the ufe of the civil law computation in regard to marriage, under the penalty of excommunication. Corpus Juris Can. Decret. II, Pars. cauf. 35, quæft. 5, c. 2, § 1. The Scottish statute 1567, 15 follows the rule of the canon law, which “was the common way of comput ing degrees in Scotland at that "time, and continues to this day 66 among the vulgar." (Erfk. b. i, c. 6, $9) "It is faid that the canon law com"putation has been adopted in Eng"land; yet I do not know a fingle "inftance" (Profeffor Chriftian remarks, Black. b. ii, p. 208) “ in which "we have occafion to refer to it. "But the civil law computation is of great importance in afcertaining "who are entitled to the adminiftra❝tion, and to the diftributive shares, "of inteftate personal property." a Erik. b. i. t. 6, § 9; Hume, v. ii, p. 290, &c. The laws of many nations, however, on the matter of marriage, made a distinction between half and full blood. The Athenian laws allowed marriages between brother and fifter by the father's fide; but not between brother and fifter uterine: whereas, in the latter cafe, the Spartan laws permitted it, but not in the former. (Potter's Antiquities, v. i, But, p. 159, and v. ii, p. 292.) as to this provifion of the Athenian law, doubts have been entertained. The authors, and arguments pro and con, are detailed by Bayle, in his Dictionary, in the life of Cimon. b L. 14, § 2, ff. de Rit. Nup. Bank. b. i, c. 5, § 42. Thus brother and fifter, both baftards, can no more intermarry than when they are both legitimate; fo alfo in the cafe of other prohibited degrees of confanguinity. © Ersk. b. i, 1. 6, § 9. The general rule is, that in whatever degree of confanguinity a perfon is related to one of the spouses, he is related to the other in the fame degree of affinity. This is fuppofed to be implied in verse 14th, which forbids connection with the uncle's wife," because she is thine aunt.” In the canon law (jure civili quodammodo, fays Voet, fed magis jure canonica; 1. xxii, f. 2, § 29.) three kinds of affinity are mentioned. The first arofe from one marriage; the fecond from two marriages; the third from three marriages. The firft fubfifted betwixt one of the spouses and the other's confan guinii; the fecond, was that affinity which the canonifts imagined to fubfift betwixt one of the fpoufes and the affines of the other; and the third was that which was imagined to subfift between one of the spouses, and the other's affines of the fecond kind. For example-Titius, by marrying CONSTITUm It is only the spouses themselves that are connected by § r. affinity with the confanguinei of each other. The confanguinei TION OF of the one spouse are not connected by affinity with those of MARRIAGE the other. Hence a father and son may marry a mother and MAY MARdaughter; or two brothers two fifters; or a man the widow of his brother-in-law; or a woman the widower of the fister of her brother's wife. Sempronia, becomes stepfather to her children; fon-in-law to her parents; brother-in-law to her brothers. But if the step-fon, or father-in-law, &c. marry, Titius was fuppofed to be related to their wives by affinity, fecundi generis, which arose from two marriages, viz. Titius's own marriage, and that of his ftep-fon or father-in law. In like manner, if, on the death of his step-fon, &c. the widow fhould marry, there then took place between Titius and fuch husband affinity of the third kind, which arofe from three marriages: viz. ft, his own; 2dly, his ftep-fon's; 3dly, that of his ftepfon's widow. These three different claffes of affirity were long confidered by the cacon law equally with confanguinity a bar to marriage. But the fecond and third kind were afterwards abolihed by the Lateran Council; (apud Mabil. Mufæum Ital. tom. ii, p. 576.) Even in popish countries, therefore, as well as with ourselves, the only fpecies recognized is, affinity of the irst kind. Whether affinity arifes from an illicit intercourfe, has given rife to much difcuffion and numerous diftinctions among lawyers. The civil law does not afford any exprefs text condemning the marriages of perfons connected only by baftard affinity. Children were indeed expressly forbid from marrying their fathers' concubines. But in thofe days concubinage was recognized by the law. At the fame time,the marriage of a woman with the father or fon of the same person with whom before she had been criminally connected, would be too repugnant to the feelings of nature, to be permitted in any civilized country, and far less among a nation fo religiously obfervant of propriety with regard to matrimonial connections as the Romans. But the canon law carried the matter to the contrary extreme, putting bastard and` legitimate affinity on the fame footing. This, however, was corrected. Amidft other improvements, the Council of Trent, în the cafe of baftard affinity, limited the prohibition to the fecond degree, that is, coufin-germans; while, in the cafe of lawful affinity, it extended to the fourth. In punishing for inceft, our courts of justice, even after the Reformation, adopted the fevere view of the canon law. Which fevere construction, however, did not govern two of the latest cafes. See the whole decifions on this fubject stated by Mr. Hume, who en. tertains doubts where there be any juft principle for fuppofing any fuch relationship to refult from vaga ves mus. -WHO RT. THE lawfulness of one marrying his fifter-in-law has fometimes been the fubject of doubt and controverfy. The Mofaical law contains no fuch exprefs prohibition; but it seems to imply it. And to ufe the words of Paulus, on another occasion, in re dubia certius et modeftius eft hujufmodi nuptiis abftinere. Our practice, accordingly, holds such marriages unlawful. The intercourse of perfons ftanding in that de of relation to each other, has been punished as incest f DURING the Popish fuperftition, another obstacle to lawful marriage, arose from what was termed spiritual affinity, viz. Imo, that subsisting betwixt the person baptized, on the one hand, and the person who baptized him, and also, his godfather and god-mother on the other; 2do, between the perfon who administered baptifm, and the god-father and the god-mother on the one hand, and the natural parent of the perfon baptized on the other; 3tio, between the perfon baptized and the children of the god-father and god-mother; 4to, between the god-father and god-mother. The two laft were abolished by the Council of Trent. MARRIAGE cannot be entered into by perfons already married, for this would be the crime of bigamy; nor by impotent perfons; nor, in general, by thofe who cannot confent, as lunatics, unless during a lucid interval; ideots, and perfons under age, though, in the latter cafe, fhould they ad d The marriage between a woman and her husband's brother is exprefsly prohibited. (ver. 16th.) But the bufband's relation to his wife's fifter is identically the fame with that of the wife to her husband's brother. The prohibition in this cafe, therefore, ftands on the fame footing with that of uncle and niece; which in like manner is forbidden by implication only. In one cafe, indeed, a man was exprefsly ordained to marry his brother's widow. (Deut. c. xxv, v.5.) But that was a special exception for a particular purpose, and rather confirms the general rule. In that cafe, the first born was confidered the child of the defunct, and inherited his fortune. Ff. l. 14, § 3; De Rit. Nupt. f Hume, v. ii, c. 18. $ 1. MARRIAGE here, on arriving at puberty, a fecond celebration is not requifite. If one of the parties fhould be under pupillarity, and VALID the other of age, even the latter alfo may refile; for both TWEEN, muft be bound or neither. <-BE WHOM. § 2. MARRIAGE ITS CON II. "THE prefent confent, whereby they accept each "other for husband and wife %," conftitutes a marriage: Yet" the public folemnity is a matter of order, justly STITU" introduced by pofitive law, for the certainty of fo import " TION. Confent ant a contract." But it is "not effential to marriage. conftitutes "Thence arifes only the diftinction of public or folemn, marriage. " and private or clandeftine marriages i." Both are equally Public valid. But the former alone are approved of; the latter are folemnity, discountenanced and punished; though " they cannot be de- matter of order only "clared void and annulled *." Juft as the ancient church not effenprofeffed to deteft fuch marriages, while, nevertheless, it held it an article of faith to believe that they truly constituted the facrament of marriage'. tial. Clandeftine marriage valid. Scots law HOWEVER, our law, notwithstanding its inclination in favour of marriage, punishes clandeftine and irregular marriages by pains and penalties; but careful not to confound what is accidental merely with what conftitutes a marriage in foro still retains peli, it holds fuch marriages, to every effect, as valid as the ancient the most regular. And-fo, too, ftood anciently the law principles. throughout all Christendom; till positive enactments,—in fome countries fooner and in others later, in fome more and & Stair, b. i, t. 4, § 6. Ibid. i Ibid. k Ibid. Les mariages clandeftins, c'est à dire, ceux qui ne font pas contractés en face d'Eglife, mais fecrétement, per fponfalia de præfenti, continuerent, toujours depuis à être regardés comme Vd. II. valables, ils étoient encore regardés § 2. in others lefs, changed and corrupted the principle; which however, with us, happily, remains entire ftill. Marriage MARRIAGE then, with us may be constituted validly CONSTITU TION OF -CONSENT DE PRE- ift, By" any contract made per verba de prefenti, or i "words of the present tenfe. The matrimonial union may "be accomplished, not only without any affistance of reli gion or the church, but even without the ufe of any ap "pointed civil form; fo the couple themselves, though "unauthorized by the will of parents or guardians, do ex plicitly, fully, and deliberately confent 2." This confent of parties, therefore," may be expreffed before a civil magistrate, or even before witnesses; or declared in writing, "provided the writing is fo conceived as neceffarily to import their prefent confent b." But fuch private confent must have been freely emitted and seriously intended by both parties to constitute a marriage. From a defect in this particular, it has been found that a marriage was neither constituted by a written acknowledgment; nor by a series of The confent" a Hume, Criminal law, v. ii, c. 20. с "caufe to the commiffaries, with di"rections to find, that the faid writ"ten acknowledgment is not suffi"cient proof of any marriage or ma"trimonial contract having paffed "between the purfuer and defender; and to proceed accordingly.** "and it is therefore ordered and adjudged, that the interlocutors com25 June 1782, M'Innes against "plained of be reversed; and that More. In this cafe, the commiffaries the court of feffion do remit the and the court of feffion found the marriage proven. But it appeared that the man, at the woman's defire, had copied over and figned the acknowledgment, not for the purpofe of making a marriage, but for a different purpose understood between them. It was on this ground that the interlocutors were reverfed, as appears from the judgment of the house of peers. "It is declared, that the "written acknowledgment is not fuf"ficient proof of any marriage or "matrimonial contract having passed "between the purfuer and defender; So, too, in the cafe, Taylor ag. Kello; Feb. 16, 1786. There were mutual declarations in writing, which the commiffaries found fufficient to confliture a marriage. But the court were much divided; and, from the Faculty report, it appears that not one of the judges exprefled any doubt that, by the law |