before which it was totally a civil contract. And, in the times of the grand rebellion, all marriages were performed by the juſtices of the peace; and theſe marriages were declared valid, without any freſh ſolemnization, by ſtatute 12 Car. II. c. 33. But, as the law now ſtands, we may upon the whole collect, that no marriage by the temporal law is ipſo facto void, that is celebrated by a perſon in orders, — in a pariſh church or public chapel (or elſewhere, by ſpecial diſpenſation) — in purſuance of banns or a licence, — between ſingle perſons, — conſenting, — of found mind, — and of the age of twenty one years; — or of the age of fourteen in males and twelve in females, with conſent of parents or guardians, or without it, in caſe of widowhood. And no marriage is voidable by the eccleſiaſtical law, after the death of either of the parties; nor during their lives, unleſs for the canonical impediments of pre-contract, if that indeed ſtill exiſts; of conſanguinity; and of affinity, or corporal imbecillity, ſubſiſting previous to the marriage.
II. I am next to conſider the manner in which marriages may be diſſolved; and this is either by death, or divorce. There are two kinds of divorce, the one total, the other partial; the one a vinculo matrimonii, the other merely a menſa et thoro. The total divorce, a vinculo matrimonii, muſt be for ſome of the canonical cauſes of impediment before-mentioned; and thoſe, exiſting before the marriage, as is always the caſe in conſanguinity; not ſupervenient, or ariſing afterwards, as may be the caſe in affinity or corporal imbecillity. For in caſes of total divorce, the marriage is declared null, as having been abſolutely unlawful ab initio; and the parties are therefore ſeparated pro ſalute animarum: for which reaſon, as was before obſerved, no divorce can be obtained, but during the life of the parties. The iſſue of ſuch marriage, as is thus entirely diſſolved, are baſtards[1].
Divorce a menſa et thoro is when the marriage is juſt and lawful ab initio, and therefore the law is tender of diſſolving it;
- ↑ Co. Litt. 235.
