Page:William Blackstone, Commentaries on the Laws of England (3rd ed, 1768, vol I).djvu/450

 434, they mut be willing to contract. "Conenus, non concubitus, facit nuptias," is the maxim of the civil law in this cae : and it is adopted by the common lawyers, who indeed have borrowed (epecially in antient times) almot all their notions of the legitimacy of marriage from the canon and civil laws.

, they mut be able to contract. In general, all perons are able to contract themelves in marriage, unles they labour under ome particular diabilities, and incapacities. What thoe are, it will here be our buines to enquire.

thee diabilities are of two orts: firt, uch as are canonical, and therefore ufficient by the eccleiatical laws to avoid the marriage in the piritual court; but thee in our law only make the marriage voidable, and not ipo facto void, until entence of nullity be obtained. Of this nature are pre-contract; conanguinity, or relation by blood; and affinity, or relation by marriage; and ome particular corporal infirmities. And thee canonical diabilities are either grounded upon the expres words of the divine law, or are conequences plainly deducible from thence: it therefore being inful in the perons, who labour under them, to attempt to contract matrimony together, they are properly the object of the eccleiatical magitrate's coercion; in order to eparate the offenders, and inflict penance for the offence, pro alute animarum. But uch marriages not being void ab initio, but voidable only by entence of eparation, they are eteemed valid to all civil purpoes, unles uch eparation is actually made during the life of the parties. For, after the death of either of them, the courts of common law will not uffer the piritual court to declare uch marriages to have been void; becaue uch declaration cannot now tend to the reformation of the parties. And therefore when a man had married his firt wife's iter, and after her death the bihop's court was proceeding to annul the mar- Rh