Promise of future marriage being a consent given by those who are betrothed, it is evident, 1st, That only they can celebrate it who are of an age to consent; and therefore the male or female above seven years of age may celebrate it, or even under that age, if, after completing it, they ratify their consent, L. 6. tit. 1. P. 4. [L. 6. tit. 1. P. 4.] 2d, But not persons of non sane mind; unless after recovering their reason they renew their promise, L. 6. tit. 2. P. 4. [L. 6. tit. 2. P. 4.] 3d, That the father cannot betroth his daughters unless they be present and consent, L. 10. tit. 1. P. 4. [L. 10. tit. 1. P. 4.] But if the father should swear and promise to marry one of his daughters with another person, and they shall consent, the election of the particular daughter is left to the will of the father, if he have not specified the object of his promise; provided that in this case, if only one of the daughters remain alive, he would be obliged to give her in marriage, and if, after the promise, he should particularise one of his daughters, and the man does not wish to have her for a wife, the father is absolved from the obligation; but if the man, before the selection shall have been made, shall have enjoyed or had connection with any one of the daughters, he shall be obliged to take her for a wife and no other, L. 11. tit. 1. P. 4. [L. 11. tit. 1. P. 4.] 4th, That it may be also provided that the espousals may take effect at the discretion of the father, if any of the contracting parties say, "I will take you for my husband or wife, if it please my father," L. 3. tit. 1. P. 4. [L. 3. tit. 1. P. 4.]

This consent being precedent to matrimony, it follows, 1st, That mutual promises of marriage may be either de præsenti or de futuro, Ll. 2. and 3. tit. 1. P. 4. [Ll. 2. and 3. tit. 1. P. 4.], the difference of which is explained by L. 9. tit. 1. P. 4. [L. 9. tit. 1. P. 4.] 2d, That they may be celebrated in four ways, by condition, cause, manner, or demonstration, Ll. 1. and 2. tit. 4. P. 4. [Ll. 1. and 2. tit. 4. P. 4.] Condition is, an agreement or covenant, which is made dependent on another covenant; for example, when a person says, "I promise to marry you if you should be at Rome.' Cause is, when a person says, "I promise to marry you, because you have done such a thing." Manner is, when a person says, "I give you a hundred maravedis to

4 Properly, espousals, or mutual promises of marriage (desposorio) are, by words, de futuro; espousals by words, de præsenti, are considered in the light of marriage (casamiento), Vide L. 2., as also L. 3. tit. 1. P. 4.; and if when a man contract espousals with one woman by words de futuro, and afterwards contract them by words de præsenti with another woman, the last shall be valid, or take effect in preference to the first, unless the man should have had connection with the woman with whom he contracted by words de futuro, before he contracted espousals with the second woman by words de præsenti. And if a man contract espousals by words de futuro with two women, he may elect to marry either of them he pleases, unless he hath had connection with one of them; for in such case, he shall be obliged to marry her with whom he has had connection. Vide L. 9. tit. 1. P. 4. Palacios observes on this part of the text, "It is certain, that as well in the civil as in the canon and statute law, this difference and improper division of espousals, de præsenti and de futuro, are to be met with, by espousals de præsenti marriage itself being understood; but that, therefore, it must not be said, that because the consent or agreement of espousals precedes matrimony, it follows, that espousals are de præsenti or de futuro; because, if it precedes, they cannot be de præsenti.

build me a house." Demonstration is, when one says, "I [44 ] promise to give you such a thing, which I bought of such an one, naming both particularly, L. 2. tit. 4. P. 4. [L. 2. tit. 4. P. 4.] The conditions ought to be just or decent (honestos), and conformable to the nature of espousals or mutual promise of future marriage (desposorio), Ll. 3, 4, and 5. tit. 4. P. 4. [Ll. 3, 4, and 5. tit. 4. P. 4.] 4th, Indecorous and impossible conditions do not vitiate or annul the promise or contract of marriage, but are considered as not to exist, L. 6. tit. 4. P. 4. [L. 6. tit. 4. P. 4.]

Promise of marriage being a mere pact (pacto), it may be celebrated with or without oath, L. 10. tit. 1. P. 4. [L. 10. tit. 1. P. 4.], and between absent persons by attorney or by power (carta), L. 1. tit. 1. P. 4. [L. 1. tit. 1. P. 4.] The effect of this promise is, the mutual obligation which arises between the parties to contract matrimony; and hence it is, 1st, That those betrothed are prohibited to marry with another, unless the second promise be made under an oath, and the first without it,5 L. 8. tit. 1. P. 4. [L. 8. tit. 1. P. 4.] 2d, That the canonical and civil impediments which hinder and dissolve marriage, also hinder and dissolve espousals, Ll. 8. and 12. tit. 1. P. 4. [Ll. 8. and 12. tit. 1. P. 4.] compared with Ll. 11, 12, 13, 14, 15, 16, and 17. tit. 2. P. 4. [Ll. 11, 12, 13, 14, 15, 16, and 17. tit. 2. P. 4.] 3d, That their causes are of ecclesiastical cognisance, L. 7. tit. 1. P. 4. [L. 7. tit. 1. P. 4.] 4th, That espousals celebrated in any of the lawful ways which we have mentioned, do not bind, unless the condition, cause, demonstration, or manner, with which the promise was made be fulfilled, L. 3. tit. 4. P. 4. [L. 3. tit. 4. P. 4.]

§ 2. Marriage is the conjunction of man and woman, made with the intention to live always together, and not to separate; observing chastity one to the other, and not cohabiting with any other woman or man, living both together, L. 1. tit. 2. P. 4. [L. 1. tit. 2. P. 4.]

Upon this definition are founded the following principles, 1st, That no one who is impotent can contract marriage, procreation being the end of matrimony. 2d, That this perpetual union cannot be dissolved, if marriage be lawfully contracted. 3d, That to render the marriage valid, will and consent must concur in the pronunciation of the promise. 4th, That it be not done clandestinely. 5th, That in order that there may be no separation of marriage, fidelity be [ 45 ]

The law referred to, appears to me to declare the reverse, and to say, that an oath taken in the face of the previous promise, as in violation of law (sin derecho), is not bind. ing. Vide L. 8. tit. 1. P. 4. The foregoing opinion has been since confirmed by the observations of Palacios on this part of the text. He adds, that "espousals are also an impediment to matrimony, but that they are an impediment of an impedient nature (impediente), commonly so termed; which means, that if, in defiance of this impediment, marriage should be contracted, it would be contracted unlawfully, but it would not be annulled."

See by this law a person who, after celebration of marriage without consummation or carnal connection, if desirous, is allowed to enter into religious or holy orders; and the woman is permitted to marry another man. Secus, if the marriage hath been consummated concubitu.

observed between man and wife. 6th, That the marriage cannot take place if there exist any canonical or civil impediment.

From the first principle these consequences are deduced, 1st, That the male under fourteen, and the female under twelve, cannot contract marriage, although, if before this age they should possess capacity, they may marry,7 L. 6. tit. 1. P. 4. [L. 6. tit. 1. P. 4.] 2d, Nor the person castrated, unless there arise capacity in him afterwards to procreate, L. 4. tit. 8. P. 4. [L. 4. tit. 8. P. 4.] 3d, Nor the impotent from injury or bodily defect, frigidity, weakness, narrowness, and other impediments treated of in tit. 8. P. 4. [Tit. 8. P. 4.]

From the second principle it arises, 1st, That no infirmity or disease which happens after the consunimation of matrimony can dissolve it, L. 7. tit. 2. P. 4. [L. 7. tit. 2. P. 4.], although the parties may live separate if the disease be contagious, or the church shall adjudge separation, L. 7. tit. 2. P. 4. [L. 7. tit. 2. P. 4.] 2d, That the wife shall enjoy the same condition, state, and dignity, as the husband, although, before marriage, they may have been unequal in situation, L. 7. tit. 2. P. 4. 3d, That the marriage consummated, but not that which is only duly solemnized (rato), is indissoluble as to the tie or chain (al vinculo), but not with regard to cohabitation, L. 4. tit. 1. P. 4. [L. 4. tit. 1. P. 4.]

From the third principle it is inferred, 1st, That the consent will not be sufficient without the will to marry,10 L. 5. tit. 2. P. 4. [L. 5. tit. 2. P. 4.] 2d, That the order of the king for a widow or virgin to marry against her will is not valid, L. 10. tit. 1. lib. 5. Rec. [L. 2. tit. 2. lib. 10. Nov. Rec.] 3d, That the lord cannot compel his vassal or tenant to marry, L. 11. tit. 1. lib. 5. Rec. [L. 3. tit. 2. lib. 10. Nov. Rec.] 4th, That this will may be expressed by words, or by signs by those who may be dumb, L. 5. tit. 2. P. 4. [L. 5. tit. 2. P. 4.] 5th, That this consent may be effectuated by a relation or stranger marrying in the name of the party, having a special power for that purpose, L. 5. tit. 2. P. 4. [L. 5. tit. 2. P. 4.] 6th, That this consent is considered wanting if there be an error as to the person, but not with respect to the quality or rank," L. 10. tit. 2. P. 4. [L. 10. tit. 2. P. 4.]

"But for this," says Palacios, "the previous decision (juicio) of the church is requisite, which belongs to the bishop." He cites Benedict XIV. Bul. magne nobis LI. tom. 2. bullar.

8 "This exception," observes Palacios, "cannot take place; because, for this capacity to supervene on castration, is repugnant; and that, therefore, L. 4. tit. 8. P. 4., cited in the text, does not make any exception."

9 Palacios states, that separation in respect to cohabitation, from whatever cause it may proceed, must always be effected by the sentence of the church, and not by the mere authority of the parties: he cites Caval. Ins. jur. can. part. 2. cap. 30. § 14. Berard. cit. tom. 3. dissert. 7. cap. 1.

10 Perhaps, remarks Palacios, something else was intended to be said, because there cannot be consent without the will.

11 And semetimes, also, if there should be an error with respect to the quality or rank, as if believing to contract with the daughter of the prince, it should be afterwards discovered that she were not so, or believing the person to be free, who should afterwards be found to be a slave. Such mistakes show that the consent was wanting. Palacios (2).

From the 4th principle we deduce 1st, That secret marriages are forbidden for the just reasons set forth in Ll. 1. and 5. tit. 3. P. 4. [Ll. 1. and 5. tit. 3. P. 4.] as are also those which are celebrated without witnesses, without the permission of the father, mother, or relations to whose charge the woman betrothed is committed; 12 or without giving notice of it in the parish church of which the contracting parties are parishioners,13 L. 1. tit. 3. P. 4. [L. 1. tit. 3. P. 4.] [ 46 ] 2d, That besides the ecclesiastical penalties those who marry clandestinely will be also liable to civil ones; and thus not only their children will be illegitimate, L. 3. tit. 3. P. 4. [L. 3. tit. 3. P. 4.] but thus incur the penalty of confiscation of property, banishment, and just cause of being disinherited, L. 1. tit. i. lib 5. Rec., [L. 5. tit. 2. lib. 10. Nov. Rec.] which explains what is expressed in Ll. 1. 2. 5. and 6. tit. 1. lib. 3. del Fuero real; which treat of disinheritance in these cases. 3d, That if he who lives with his lord marries his daughter's without his command, he incurs the punishment of banishment, and she that of disinherison,16 L. 2. tit. 1. lib. 5. Rec. [L. 1. tit. 2. lib. 10. Nov. Rec.] Fidelity (lealtad) is broken, when 1st, Adultery is committed, the punishment whereof is canonical," and is treated of with its form of trial (su juicio) in Ll. 8. and 19. tit. 2. and L. 2. tit. 9. P. 4. [Ll. 8. and 19. tit. 2., and L. 2. tit. 9. P. 4.] 2d, Much more is it broken when either of the married parties shall marry again during the life of the other, which crime is visited by the civil laws with the penalties which we will explain in the last title of our 2d book, and which are expressed in Ll. 5. 6. and 7. tit. 1. lib. 5. Rec.18 [Ll. 6. 7. 8. tit. 28. lib. 12. Nov. Rec.]

According to the 6th principle the canonical impediments to marriage are comprised under the following;19 1st, Carnal or spiritual

12 The want of such permission, observes Palacios, would not render the marriage null or clandestine. Clandestine marriage, according to the Council of Trent, is only con sidered that which is celebrated without the presence of the priest (parroco) and two witnesses, sess. 24. De Reform Matrim. cap. 1.

In respect to the necessity of paternal consent in regard to minors, or persons under particular ages in cases of matrimony, the learned professor refers to L. 18. tit. 2. lib. 10. Nov. Rec.

13 Publication of banns.

14 And this punishment extends to the witnesses of such clandestine marriage, Vide L. 5. tit. 2. lib. 10. Nov. Rec.

15 Or his female relation (pariente) living in the lord's house. Vide L. 1. tit. 2. lib. 10. Nov. Rec.

16 And her property goes to her nearest relations. Vide L. 1. tit. 2. lib. 10. Nov. Rec. 17 And also civil, adds Palacios.

18 By the first law referred to the bigamist is to be branded in the forehead with a hot iron, with the letter Q. By the 2d, He is to be condemned to the punishment of treachery (alive), and to be visited with a loss of half his or her property; and by the 3d, To be condemned to the gallies for five years.

19 But, observes Palacios, the canonical impediments are not limited to these alone. For a due understanding of all the impediments, whether natural, canonical, or civil, he adds, that it is absolutely necessary to consult some of the authors on the subject cited. He particularly refers, for what respects civil impediments, to Selvag. Inst. can. discipline legibus et consuetudinibus Hispan. accomodat. Tom. 2. lib. 2. tit. 9.; and to the royal orders posterior thereto.

kindred (parentesco),20 Ll. 12. and 17 tit. 2. P. 4. and titles 6. and 7. P. 4.21 [Ll. 12. and 17. tit. 2. P. 4., and tit. 6. 7. P. 4.] 2d, The crime of incest, L. 13. tit. 2. P. 4.. [L. 13. tit. 2. P. 4.] The death of either of the consorts occasioned or perpetrated by the other,22 L. 14. tit. 2. P. 4. [L. 14. tit. 2. P. 4.] 4th, Difference of law or religion,23 L. 15. tit. 2. P. 4. [L. 15. tit. 2. P. 4.] 5th, The sacred order, L. 16. tit. 2. P. 4. [L. 16. tit. 2. P. 4.] 6th, The solemn vow of religion or chastity, L. 11. tit. 2. P. 4.24 [L. 11. tit. 2. P. 4.]

The civil impediments are those which proceed from want of understanding;25 and for this reason madmen, fools, or idiots, &c., cannot contract marriage, L. 6. tit. 2. P. 4. [L. 6. tit. 2. P. 4.]

The civil laws also prohibit marriage in the direct line, and also in the collateral to the fourth degree.26 But as relationship or kindred embraces two considerations,27 one with reference to the laws of the laity or common law, and the other with reference to the ecclesiastical law, L. 3. tit. 6. P. 4.; [L. 3. tit. 6. P. 4.;] and as in respect of marriage the rules of the canon law are followed, leaving those of the civil or common law to govern the cases of succession ab intestato, it has appeared to us more regular to defer the explanation of the [ 47 ] degrees of consanguinity and affinity until we come to speak of these successions.

Matrimonial causes are exclusively of ecclesiastical cognisance,28 and therefore it is not within the province of our institute to touch upon them. See Titles 9. and 10. P. 4. [Tit. 9. and 10. P. 4.]

20 To the fourth degree, and this impediment holds with respect to adopted relations. By spiritual kindred is meant god-fathers and god-daughters, &c.

21 Another impediment to matrimony is also noticed by Ll. 12. and 17. tit. 2. P. 4. from motives of public honesty or decency.

22 Impedes a second marriage on the part of the survivor, it is presumed.

23 That as regards a person not Christian, L. 15. tit. 2 P. 4. forbids the marriage of a Christian with a Jew, Moor, or person who is not a Christian; but it allows a Christian to contract espousals with such person, on the condition or covenant, that such infidel will become a convert to Christianity before actual marriage.

24 L. 11. tit. 2. P. 4. mentions another impedimeut which, perhaps, ought not to be classed under canonical disabilities: the impediment I allude to, is the marriage of a free person with a slave, unless the party free be cognizant of the condition of the other, and consent to the marriage, or have carnal connection with ditto. Vide the law referred to. 25 Palacios says these impediments are natural.

26 In the direct line they prohibit it, in infinitum, Palacios, (1).

27 That is in respect of the modes of computation adopted by the civil and canon laws, which differ in respect to transversal or collaterals, but agree in respect of direct ascendants or descendants. Vide L. 3. tit. 6. P. 4.

28 This proposition appears rather too generally expressed; for it would seem from the Prom to the 10th Title of the 4th Partida, that there is an exception, where, after making the general statement in the text, which is also supported by the 9th Title of the 4th Partida referred to, it is said, "unless (fueras ende) the impediment concern a matter which belongs to lay jurisdiction or decision, such, for instance, as one with regard to adultery." Vide Præm tit. P. 4. On this part of the text, it is observed by Palacios, that the causes or trials of those who contract a second marriage during the life of the first wife, are, by a royal cedula of 5th February, 1770, (L. 10. tit. 28. lib. 12. Nov. Rec.,) declared exclusively of royal, or lay, and military jurisdiction, according to the persons who offend; but that by the royal decree of 10th December, 1781, [which does not, however, appear in the Nov. Rec.,] the ecclesiastical jurisdiction may also take cognisance of the mode, and for the reason expressed by the same decree.