he
spiritual court to declare such marriages to have been void; because
such declaration cannot now tend to the reformation of the parties[d].
And therefore when a man had married his first wife's sister, and
after her death the bishop's court was proceeding to annul the
marriage and bastardize the issue, the court of king's bench granted
a prohibition _quoad hoc_; but permitted them to proceed to punish the
husband for incest[e]. These canonical disabilities, being entirely
the province of the ecclesiastical courts, our books are perfectly
silent concerning them. But there are a few statutes, which serve as
directories to those courts, of which it will be proper to take
notice. By statute 32 Hen. VIII. c. 38. it is declared, that all
persons may lawfully marry, but such as are prohibited by God's law;
and that all marriages contracted by lawful persons in the face of the
church, and consummate with bodily knowlege, and fruit of children,
shall be indissoluble. And (because in the times of popery a great
variety of degrees of kindred were made impediments to marriage, which
impediments might however be bought off for money) it is declared by
the same statute, that nothing (God's law except) shall impeach any
marriage, but within the Levitical degrees; the farthest of which is
that between uncle and niece[f]. By the same statute all impediments,
arising from pre-contracts to other persons, were abolished and
declared of none effect, unless they had been consummated with bodily
knowlege: in which case the canon law holds such contract to be a
marriage _de facto_. But this branch of the statute was repealed by
statute 2 & 3 Edw. VI. c. 23. How far the act of 26 Geo. II. c. 33.
(which prohibits all suits in ecclesiastical courts to compel a
marriage, in consequence of any contract) may collaterally extend to
revive this clause of Henry VIII's statute, and abolish the impediment
of pre-contract, I leave to be considered by the canonists.

[Footnote d: _Ibid._]

[Footnote e: Salk. 548.]

[Footnote f: Gilb. Rep. 158.]

THE other sort of disabilities are those which are created, or at
least enforced, by the municipal laws. And, though some of them may be
grounded on natural law, yet they are regarded by the laws of the
land, not so much in the light of any moral offence, as on account of
the civil inconveniences they draw after them. These civil
disabilities make the contract void _ab initio_, and not merely
voidable: not