formed, but they render the parties incapable of forming any contract at all: they do not put aſunder thoſe who are joined together, but they previouſly hinder the junction. And, if any perſons under theſe legal incapacities come together, it is a meretricious, and not a matrimonial, union.
1. The firſt of theſe legal diſabilities is a prior marriage, or having another huſband or wife living; in which caſe, beſides the penalties conſequent upon it as a felony, the ſecond marriage is to all intents and purpoſes void[1]: polygamy being condemned both by the law of the new teſtament, and the policy of all prudent ſtates, eſpecially in theſe northern climates. And Juſtinian, even in the climate of modern Turkey, is expreſs[2], that "duas uxores eodem tempore habere non licet."
2. The next legal diſability is want of age. This is ſufficient to avoid all other contracts, on account of the imbecillity of judgment in the parties contracting; a fortiori therefore it ought to avoid this, the moſt important contract of any. Therefore if a boy under fourteen, or a girl under twelve years of age, marries, this marriage is only inchoate and imperfect; and, when either of them comes to the age of conſent aforeſaid, they may diſagree and declare the marriage void, without any divorce or ſentence in the ſpiritual court. This is founded on the civil law[3]. But the canon law pays a greater regard to the conſtitution, than the age, of the parties[4]: for if they are habiles ad matrimonium, it is a good marriage, whatever their age may be. And in our law it is ſo far a marriage, that, if at the age of conſent they agree to continue together, they need not be married again[5]. If the huſband be of years of diſcretion, and the wife under twelve, when ſhe comes to years of diſcretion he may diſagree as well as ſhe may: for in contracts the obligation muſt be mutual; both muſt be bound, or neither: and ſo it is, vice verſa, when the wife is of years of diſcretion, and the huſband under[6].
