under twenty-one, (not being a widow or widower, who are ſuppoſed emancipated) without the conſent of the father, or, if he be not living, of the mother or guardians, ſhall be abſolutely void. A like proviſion is made as in the civil law, where the mother or guardian is non compos, beyond ſea, or unreaſonably froward, to diſpenſe with ſuch conſent at the diſcretion of the lord chancellor: but no proviſion is made, in caſe the father ſhould labour under any mental or other incapacity. Much may be, and much has been, ſaid both for and againſt this innovation upon our antient laws and conſtitution. On the one hand, it prevents the clandeſtine marriage of minors, which are often a terrible inconvenience to thoſe private families wherein they happen. On the other hand, reſtraints upon marriages, eſpecially among the lower claſs, are evidently detrimental to the public, by hindering the encreaſe of people; and to religion and morality, by encouraging licentiouſneſs and debauchery among the ſingle of both ſexes; and thereby deſtroying one end of ſociety and government, which is, concubitu prohibere vago. And of this laſt inconvenience the Roman laws were ſo ſenſible, that at the ſame time that they forbad marriage without the conſent of parents or guardians, they were leſs rigorous upon that very account with regard to other reſtraints: for, if a parent did not provide a huſband for his daughter, by the time me arrived at the age of twenty five, and ſhe afterwards made a ſlip in her conduct, he was not allowed to diſinherit her upon that account; "quia non ſua culpa, ſed parentum, id commiſiſſe cognoſcitur[1]."
4. A fourth incapacity is want of reaſon; without a competent ſhare of which, as no other, ſo neither can the matrimonial contract, be valid[2]. It was formerly adjudged, that the iſſue of an idiot was legitimate, and conſequently that his marriage was valid. A ſtrange determination! ſince conſent is abſolutely requiſite to matrimony, and neither idiots nor lunatics are capable of conſenting to any thing. And therefore the civil law judged much more ſenſibly, when it made ſuch deprivations of reaſon a
