As both our civil and religious institutions consider the matrimonial union as a necessary preliminary[236] to the legal propagation of our species, this as far as it is connected with medical science, will form the first subject of enquiry, in which we are to investigate who are and who are not capable of contracting this relation.[237] And this being a point originally of ecclesiastical jurisdiction, we shall in its examination, follow the order of the civilians, so far as it is necessary to our purpose; we shall accordingly consider the capacity of persons to contract marriage in respect of age, mental capacity, and corporeal fitness. Another question arises from consanguinity; and this though neither founded in nor determinable by medical evidence, may deserve a moment’s attention, since it is evident that the prohibition of marriage to certain degrees of kindred, though it may not have been suggested by physiological reasoning, is well warranted by it. Experience demonstrates both in the human and brute creation,[238] that a race continually bred through the same blood without admixture of a foreign stock, becomes small, weak, and degenerate; this is a fact too well known to the agriculturist in breeding cattle to require further observation. And it is fatally displayed in the royal and noble families of some foreign countries, whose policy has been supposed to require frequent intermarriages, and whose princes and nobles are thence distinguished from their countrymen by their animal, and frequently by their mental inferiority. Those who have travelled in the south of Europe will not be at a loss for examples in elucidation of this principle.
Many questions may arise on the first point; for, though the Act of the 26th of George 2. cap. 33. commonly called the Marriage Act, has fixed the age of twenty-one years[239] as the period in both sexes before which this contract cannot legally take effect by the mere act of the parties. Other points may still arise as to the age at which marriage may take place, the statuable precautions of banns or licence having been complied with.
According to the canon law and the doctrines of precontracts (now exploded)[240] or rather from the abuse of both, infants of the most tender age were formerly betrothed to each other; and this precontract they were considered as bound to complete and perform when they should arrive at a sufficient age; the civil law indeed says,[241] “though spousals are not limited to any age, yet infancy is not esteemed in the calculation: id est si non sint minores quam septem annis”[242]. Our law however appears, and with good reason, to have fixed upon the supposed age of puberty, fourteen for boys, and twelve for girls, as the earliest period at which marriage should be contracted. Yet even these relative ages, though somewhat too tender either for public policy or domestic happiness, are not invariably the times of puberty; in some instances it is anticipated, in many delayed. If therefore the law of England, in this as in most other matters of Ecclesiastical jurisdiction, follows the Canon law, which “pays a greater regard to the constitution than the age of the parties; for if they are habiles ad matrimonium it is a good marriage, whatever their age may be,” it becomes an important medical question to consider who are and who are not habiles ad matrimonium in respect of nonage.
It is equally, or perhaps more important, that the parties be habiles ad consensus, in respect of mental capacity; for though in an old case Style and West, 3 James 1. Roll. Ab. 357, it was held that an idiot a nativitate, might consent to marriage[243], by later resolutions it has been determined otherwise, because consent is necessary to marriage, and idiots are not capable of consenting to any thing, so also of a lunatic, unless the marriage was in a lucid interval. But as it may be difficult to prove the exact state of the party’s mind at the actual celebration of the nuptials, therefore the statute 15 Geo. 2. c. 30. has provided that the marriage of lunatics and persons under phrenzies, (if found[244] lunatics under a commission, or committed to trustees by any Act of Parliament) before they are declared of sound mind by the Lord Chancellor or the majority of such trustees, shall be totally void. 2 Burn. Eccl. Law 416. 1 Bl. Com. 439. Collinson on Lunatics, 554.
Persons deaf and dumb may contract marriage, for they can give their consent by signs: 2 Burn. Eccl. Law, 415. Swinb. s. 15. 3 Potier, 165.[245] but it is essential, that they should be competent in all other respects, for there must always be a prima facie suspicion that a person born deaf and dumb, by absence of the ordinary means of instruction, must be of imperfect capacity.[246]
The third consideration is whether the parties are habiles ad procreandos liberos in respect of corporeal ability, for that being the ultimate use and intention of marriage, the contract cannot be good unless the parties are in the condition of performing it;[247] except indeed where the incapacity arises from old age; volenti non fit injuria, and though neither the law of the land, nor the law of nature has, as far as it is known to us, prescribed any well-defined limit to the generative capacity,[248] yet after a certain period it may at least be so far doubtful as to create an implied waiver between the contracting parties.[249]
Some foreign jurists and schoolmen have maintained, that the institution being solely ad procreandos liberos, it is a profanation of the rite to celebrate it between parties incapable;[250] but this doctrine is repelled by our liturgy, which even prescribes the omission of the prayer for procreation where the woman is past the age of childbearing;[251] how the priest is to ascertain this point we leave the civilians to determine.
But a much more material question of medico-legal policy arises, as to the marriages of those who are afflicted with some serious hereditary disorder, or predisposition to disorder,[252] as Scrofula, Mania, &c.[253] in such cases public policy might induce an absolute prohibition,[254] but humanity would pause before it added this bann of excommunication to the misfortunes of its object; a middle course might be adopted: Mahon[255] says that the Protestant church admits epilepsy as a good cause of divorce, and that Alberti has handed down a decision of the faculty of Halle on this subject; we do not know any English case on the point, and very much doubt whether our ecclesiastical courts would admit the principle; unless indeed it were made out, that the disorder constituted a moral impotence, or that one of the parties could not perform the contract but at the risk of life.
Fernelius is of opinion that old people beget weak and diseased children, “Senes et Valetudinarii imbecilles filios vitiosa constitutione gignunt.” Portal supports the same opinion, and thinks that the older people are when they have children, the more likely they are to have acquired imbecillity or disease, and to transmit the same to their children, from whom they may become hereditary, (Portal, “Sur la nature et traitement de quelques maladies hereditaires ou de famille”). This is altogether a popular error; what innumerable instances, says Dr. Adams, might be cited, in which the younger branch of a family has revived its splendour, which had been decaying for a succession of ages: the late Mr. Pitt was the youngest son, born when his illustrious father was in the fifty-first year of his age.
