that they dissolve a contract already formed, but they
render the parties incapable of forming any contract at all: they do
not put asunder those who are joined together, but they previously
hinder the junction. And, if any persons under these legal
incapacities come together, it is a meretricious, and not a
matrimonial, union.

1. THE first of these legal disabilities is a prior marriage, or
having another husband or wife living; in which case, besides the
penalties consequent upon it as a felony, the second marriage is to
all intents and purposes void[g]: polygamy being condemned both by the
law of the new testament, and the policy of all prudent states,
especially in these northern climates. And Justinian, even in the
climate of modern Turkey, is express[h], that "_duas uxores eodem
tempore habere non licet_."

[Footnote g: Bro. Abr. _tit. Bastardy._ pl. 8.]

[Footnote h: _Inst._ 1. 10. 6.]

2. THE next legal disability is want of age. This is sufficient to
avoid all other contracts, on account of the imbecillity of judgment
in the parties contracting; _a fortiori_ therefore it ought to avoid
this, the most important contract of any. Therefore if a boy under
fourteen, or a girl under twelve years of age, marries, this marriage
is only inchoate and imperfect; and, when either of them comes to the
age of consent aforesaid, they may disagree and declare the marriage
void, without any divorce or sentence in the spiritual court. This is
founded on the civil law[i]. But the canon law pays a greater regard
to the constitution, than the age, of the parties[k]: for if they are
_habiles ad matrimonium_, it is a good marriage, whatever their age
may be. And in our law it is so far a marriage, that, if at the age of
consent they agree to continue together, they need not be married
again[l]. If the husband be of years of discretion, and the wife under
twelve, when she comes to years of discretion he may disagree as well
as she may: for in contracts the obligation must be mutual; both must
be bound, or neither: and so it is, _vice versa_, when the wife is of
years of discretion, and the husband under[m].

[Footnote i: _Leon. Constit._ 109.]

[Footnote k: _Decretal._ _l._ 4. _tit._ 2. _qu._ 3.]

[Footnote l: Co. Litt. 79.]

[Footnote m: _Ibid._]

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 concu