The decrees of the Council of Trent had no force in England. A marriage by mere consent of parties, until the passing of the Marriage Act in 1753, constituted a binding engagement ; though if application were made to the ecclesiastical courts for letters of administration, &c., under a title derived through such irregular marriage, those courts sometimes showed their resentment of the irregularity by refusing their assistance, more especially where the non-compliance with the usual formalities could be traced to disaffection to the Established Church. What the formalities required by the Church before the Marriage Acts were, it is now immaterial to consider. Such of them as are not incorporated into any of the Marriage Acts, are now of no force for any purpose.
To constitute a valid marriage, as well before as since the Marriage Acta, it is necessary, 1st, that there should be two persons capable of standing in the relation of husband and wife to each other ; 2ndly, that they should be willing to stand in that relation ; and 3rdly, that they should hare contracted with one another to stand in that relation.
1. The capacity of standing in the relation of husband and wife implied that at the time of the contract there should be no natural or legal disability. Total and permanent disability on either side to con summate marriage will render the contract void. Temporary disability from disease does not affect the validity of a marriage. Temporary dis ability from defect of age does not invalidate the marriage, but it leaves the party or parties at liberty to avoid or to confirm such premature union on attaining the age of consent, which for males is 14, and for females 12. Before the abolition of feudal tenures, when the lords were entitled to sell the marriages of their male and female wards, infantine marriages were very common, fathers being anxious to prevent wives and husbands from being forced upon their children after their death, and lords being eager, either to secure the prize for their own family, or to realise the profit resulting from a sale. A person who is already married is under a legal disability to contract a second marriage whilst the first wife or husband is alive ; and although there may have been the strongest grounds for believing that the first wife or husband was dead, the children of the second marriage would not in England derive any benefit from the absence of moral guilt in their parents, though in France and some other countries the issue of marriages so contracted, bond fide, are treated with greater indulgence.
Near consanguinity or relationship in blood is a legal impediment to marriage. The degree of nearness which shall disable parties from uniting in marriage varies in different countries, and has varied at diflerent periods in our own.
This impediment is founded not only upon the moral but upon the physical constitution of man. The purity of domestic intercourse, the sanctity of affection with which the family circle ie now united, would be it an end if matrimonial connections could be formed among its members ; and even with 'the present restrictions intermarriages in families are frequently productive of the most injurious consequences in respect of mental and bodily health.
Affinity or relationship by marriage is an impediment arising out of moral considerations alone. The extent to which this impediment has been carried has also varied.
The impediment to marriage arising out of consanguinity applies in the same degree to illegitimate as to legitimate relations, and the impediment resulting from affinity is created by illicit connection as well as by marriage. The Council of Trent restricted the impediment of affinity arising out of illicit connection to the second degree.
2. Each party must have the will to contract marriage with the other. An idiot therefore, who cannot understand the nature of the conjugal relation, is incapable of contracting marriage. So is a lunatic, except during a lucid interval. But however absurd it may appear, children are presumed to have sufficient intelligence to understand the nature of the marriage engagement at seven ; and though the contract is not absolutely binding upon them until they reach the age of con-. sent, still the marriage of a child above the age of seven would prevent its forming a second marriage until the age of consent, as until that age it cannot dissent from the first marriage.
3. There must be an actual contract of marriage. This, at common law, might be by words of present contract, which would, without more, constitute a perfect marriage,—or by words of future contract, followed by cohabitation.
The unlimited freedom of marriage was first broken in upon in England by the Marriage Act of 1753 (26 Geo. II., c. 33), the principal provisions of which form the basis of the law as it now stands. Many of these provisions are taken from the canon law, an observance of which was, before this statute, necessary to constitute a regular mar riage, though a marriage contracted without them was valid.