siastical law: the temporal courts not having jurisdiction to
consider unlawful marriages as a sin, but merely as a civil
inconvenience. The punishment therefore, or annulling, of incestuous
or other unscriptural marriages, is the province of the spiritual
courts; which act _pro salute animae_[a]. And, taking it in this civil
light, the law treats it as it does all other contracts; allowing it
to be good and valid in all cases, where the parties at the time of
making it were, in the first place, _willing_ to contract; secondly,
_able_ to contract; and, lastly, actually _did_ contract, in the
proper forms and solemnities required by law.

[Footnote a: Salk. 121.]

FIRST, they must be _willing_ to contract. "_Consensus, non
concubitus, facit nuptias_," is the maxim of the civil law in this
case[b]: and it is adopted by the common lawyers[c], who indeed have
borrowed (especially in antient times) almost all their notions of the
legitimacy of marriage from the canon and civil laws.

[Footnote b: _Ff._ 50. 17. 30.]

[Footnote c: Co. Litt. 33.]

SECONDLY, they must be _able_ to contract. In general, all persons are
able to contract themselves in marriage, unless they labour under some
particular disabilities, and incapacities. What those are, it will
here be our business to enquire.

NOW these disabilities are of two sorts: first, such as are canonical,
and therefore sufficient by the ecclesiastical laws to avoid the
marriage in the spiritual court; but these in our law only make the
marriage voidable, and not _ipso facto_ void, until sentence of
nullity be obtained. Of this nature are pre-contract; consanguinity,
or relation by blood; and affinity, or relation by marriage; and some
particular corporal infirmities. And these canonical disabilities are
either grounded upon the express words of the divine law, or are
consequences plainly deducible from thence: it therefore being sinful
in the persons, who labour under them, to attempt to contract
matrimony together, they are properly the object of the ecclesiastical
magistrate's coercion; in order to separate the offenders, and inflict
penance for the offence, _pro salute animarum_. But such marriages not
being void _ab initio_, but voidable only by sentence of separation,
they are esteemed valid to all civil purposes, unless such separation
is actually made during the life of the parties. For, after the death
of either of them, the courts of common law will not suffer t