Page:William Blackstone, Commentaries on the Laws of England (3rd ed, 1768, vol I).djvu/453

3. Another incapacity ariſes from want of conſent of parents or guardians. By the common law, if the parties themſelves were of the age of conſent, there wanted no other concurrence to make the marriage valid: and this was agreeable to the canon law. But, by ſeveral ſtatutes^[1], penalties of 100𝑙. are laid on every clergyman who marries a couple either without publication of banns (which may give notice to parents or guardians) or without a licence, to obtain which the conſent of parents or guardians muſt be ſworn to. And by the ſtatute 4 & 5 Ph. & M. c. 8. whoſoever marries any woman child under the age of ſixteen years, without conſent of parents or guardians, ſhall be ſubject to fine, or five years impriſonment: and her eſtate during the huſband's life ſhall go to and be enjoyed by the next heir. The civil law indeed required the conſent of the parent or tutor at all ages; unleſs the children were emancipated, or out of the parents power^[2]: and, if ſuch conſent from the father was wanting, the marriage was null, and the children illegitimate^[3]; but the conſent of the mother or guardians, if unreaſohably withheld, might be redreſſed and ſupplied by the judge, or the preſident of the province^[4]: and if the father was non compos, a ſimilar remedy was given^[5]. Theſe proviſions are adopted and imitated by the French and Hollanders, with this difference: that in France the ſons cannot marry without conſent of parents till thirty years of age, nor the daughters till twenty five^[6]; and in Holland, the ſons are at their own diſpoſal at twenty five, and the daughters at twenty^[7]. Thus hath ſtood, and thus at preſent ſtands, the law in other neighbouring countries. And it has lately been thought proper to introduce ſomewhat of the ſame policy into our laws, by ſtatute 26 Geo. II. c. 33. whereby it is enacted, that all marriages celebrated by licence (for banns ſuppoſe notice) where either of the parties is

1. 6 & 7 Will. III. c. 6. 7 & 8 W. III. c. 35. 10 Ann. c. 19.
2. Ff. 23. 2. 2, & 18.
3. Ff. 1. 5. 11.
4. Cod. 5. 4. 1, & 20.
5. Inſt. 1. 10. 1.
6. Domat, of Dowries. §. 2. Monteſq. Sp. L. 23. 7.
7. Vinnius in Inſt. l. 1. t. 10.