Page:An introduction to Roman-Dutch law.djvu/114

 Rh 74 THE LAW OF PERSONS or of a surviving parent. But what if both parents are dead? The Political Ordinance (Art. 3) does not require the consent of relatives.'^ Inasmuch, however, as Art. 17 saves the operation of the penal clauses of the Perpetual Edict, it has been thought that a marriage of minors whose parents are both dead, if contracted without the consent of friends and relations, or, if these disagree amongst themselves or unreasonably withhold their consent, of the Court, though not void, is nevertheless penahzed. This is the view of Grotius,^ whose opinion seems to have prevailed. Voet* and Bynkershoek,* however, agree in thinking that the penalty of the Edict is only preserved by Art. 13 of the Pohtical Ordinance so far as the enacting clause of the Edict is also retained. Since, therefore, the Pohtical Ordinance requires no con- sent of relatives, neither can it be supposed to retain the penalty attached by the Edict to marriages contracted without such consent. Grotius treats the consent of the nearest relatives as necessary, if the penalty is to be avoided, though he expressly says that the marriage of minors is not void by reason of its being prohibited by their guardians or relatives.^ (b)Aare- The argument founded upon the language of the Per- sent of petual Edict clearly fails in regard of the consent of tutors, tutors; for the Edict does not penalize marriages contracted without such consent. In view of this fact, it seems impossible to say that the common law of Holland made the consent of tutors a necessary condition of a vahd marriage of a minor whose parents were dead,* nor, apart from general or local legislation, can the penalty of the Edict be extended to a case to which it does not in terms apply.' It is plain, however, from Van der Keessel ^ that Voet, 23. 2. 16. ^ Qj. i §_ 3_ s Voet, ubi sup. 23. 2. 16 ; V. d. L. 1. 3. 6 ; Hoola van Nooten, vol. i, p. 307. ' Van Leeuwen {ubi sup.) applies it, but with hesitation. In any event consent of guardians will be easily inferred. Ibid. 8 V. d. K. Th. 125.
 * B3aikerslioek, Quaest. Jur. Priv., lib. II, cap. iii.
 * Gr. vbi sup.
 * Gr. uhi sup. and Schorer ad loo. ; Van Leeuwen, 1. 14. 9 ; Voet,