First, they muſt be willing to contract. "Conſenſus, non concubitus, facit nuptias," is the maxim of the civil law in this caſe[1]: and it is adopted by the common lawyers[2], who indeed have borrowed (eſpecially in antient times) almoſt all their notions of the legitimacy of marriage from the canon and civil laws.
Secondly, they muſt be able to contract. In general, all perſons are able to contract themſelves in marriage, unleſs they labour under ſome particular diſabilities, and incapacities. What thoſe are, it will here be our buſineſs to enquire.
Now theſe diſabilities are of two ſorts: firſt, ſuch as are canonical, and therefore ſufficient by the eccleſiaſtical laws to avoid the marriage in the ſpiritual court; but theſe in our law only make the marriage voidable, and not ipſo facto void, until ſentence of nullity be obtained. Of this nature are pre-contract; conſanguinity, or relation by blood; and affinity, or relation by marriage; and ſome particular corporal infirmities. And theſe canonical diſabilities are either grounded upon the expreſs words of the divine law, or are conſequences plainly deducible from thence: it therefore being ſinful in the perſons, who labour under them, to attempt to contract matrimony together, they are properly the object of the eccleſiaſtical magiſtrate's coercion; in order to ſeparate the offenders, and inflict penance for the offence, pro ſalute animarum. But ſuch marriages not being void ab initio, but voidable only 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 court to declare ſuch marriages to have been void; becauſe ſuch declaration cannot now tend to the reformation of the parties[3]. And therefore when a man had married his firſt wife's ſiſter, and after her death the biſhop's court was proceeding to annul the mar-
