rrence to make the marriage
valid: and this was agreeable to the canon law. But, by several
statutes[n], penalties of 100_l._ are laid on every clergyman who
marries a couple either without publication of banns (which may give
notice to parents or guardians) or without a licence, to obtain which
the consent of parents or guardians must be sworn to. And by the
statute 4 & 5 Ph. & M. c. 8. whosoever marries any woman child under
the age of sixteen years, without consent of parents or guardians,
shall be subject to fine, or five years imprisonment: and her estate
during the husband's life shall go to and be enjoyed by the next heir.
The civil law indeed required the consent of the parent or tutor at
all ages; unless the children were emancipated, or out of the parents
power[o]: and, if such consent from the father was wanting, the
marriage was null, and the children illegitimate[p]; but the consent
of the mother or guardians, if unreasonably withheld, might be
redressed and supplied by the judge, or the president of the
province[q]: and if the father was _non compos_, a similar remedy was
given[r]. These provisions are adopted and imitated by the French and
Hollanders, with this difference: that in France the sons cannot marry
without consent of parents till thirty years of age, nor the daughters
till twenty five[s]; and in Holland, the sons are at their own
disposal at twenty five, and the daughters at twenty[t]. Thus hath
stood, and thus at present stands, the law in other neighbouring
countries. And it has been lately thought proper to introduce somewhat
of the same policy into our laws, by statute 26 Geo. II. c. 33.
whereby it is enacted, that all marriages celebrated by licence (for
banns suppose notice) where either of the parties is under twenty
one, (not being a widow or widower, who are supposed emancipated)
without the consent of the father, or, if he be not living, of the
mother or guardians, shall be absolutely void. A like provision is
made as in the civil law, where the mother or guardian is _non
compos_, beyond sea, or unreasonably froward, to dispense with such
consent at the discretion of the lord chancellor: but no provision is
made, in case the father should labour under any mental or other
incapacity. Much may be, and much has been, said both for and against
this innovation upon our antient laws and constitution. On the one
hand, it prevents the clandestine marriages of minors, which are often
a terribl