previous impediment; though not a cauſe of divorce, if they happened after marriage[1]. And modern reſolutions have adhered to the reaſon of the civil law, by determining[2] that the marriage of a lunatic, not being in a lucid interval, was abſolutely void. But as it might be difficult to prove the exact ſtate of the party's mind at the actual celebration of the nuptials, upon this account (concurring with ſome private family[3] reaſons) the ſtatute 15 Geo. II. c. 30. has provided, that the marriage of lunatics and perſons under phrenzies (if found lunatics under a commiſſion, or committed to the care of truſtees by any act of parliament) before they are declared of found mind by the lord chancellor or the majority of ſuch truſtees, ſhall be totally void.
Lastly, the parties muſt not only be willing, and able to contract, but actually muſt contract themſelves in due form of law, to make it a good civil marriage. Any contract made, per verba de praeſenti, or in words of the preſent tenſe, and in caſe of cohabitation per verba de futuro alſo, between perſons able to contract, was before the late act deemed a valid marriage to many purpoſes; and the parties might be compelled in the ſpiritual courts to celebrate it in facie eccleſiae. But theſe verbal contracts are now of no force, to compel a future marriage[4]. Neither is any marriage at preſent valid, that is not celebrated in ſome pariſh church or public chapel, unleſs by diſpenſation from the arch-biſhop of Canterbury. It muſt alſo be preceded by publication of banns, or by licence from the ſpiritual judge. Many other formalities are likewiſe preſcribed by the act; the neglect of which, though penal, does not invalidate the marriage. It is held to be alſo eſſential to a marriage, that it be performed by a perſon in orders[5], though the intervention of a prieſt to ſolemnize this contract is merely juris poſitivi, and not juris naturalis aut divini: it being ſaid that pope Innocent the third was the firſt who ordained the celebration of marriage in the church[6];
