In a case in Massachusetts, (z) l the court say: "But in the absence of any provision declaring marriage not celebrated in a prescribed manner or between parties of a certain age absolutely void, it is held, that all marriages regularly made according to the common law, are valid and binding, although had in violation of the specific regulations imposed by statute." This language differs somewhat from any used elsewhere, but it leaves the question undetermined, because it does not decide how marriages are to be "regularly made according to the * common law;" and what is more important, the words of the court must be considered in reference to the case before them, which was whether a marriage otherwise valid, could be avoided by the fact that the wife being but thirteen years of age was married without the consent of her parents, which marriage the magistrate was on that account prohibited from solemnizing, under a penalty. The court determined, that in Massachusetts, the common law rule which fixes twelve as the age of consent of females, and fourteen of males, prevails. It has been held in Michigan, that if a man marries a woman who is under the age of consent, the marriage is not void unless they separate before she reaches that age, by mutual consent, or unless after reaching it she refuses further cohabitation. (zz)

(y) C. 75, § 24. The provision contained in that section is as follows; "No marriage solemnised before any person professing to be a justice of the peace, or a minister of the gospel, shall be deemed or adjudged to be void, nor shall the validity thereof be in any way affected, on account of any want of jurisdiction or authority in such supposed justice or minister, or on account of any omission or informality in the manner of entering the intention of marriage, or in the publication of the banns; provided that the marriage be in other respects lawful, and be consummated with a full belief, on the part of the persons so married, or of either of them, that they have been lawfully joined in marriage. (z) Parton v. Hervey, 1 Gray, 119.

1 In Massachusetts, the performance of a marriage ceremony solely by the man and woman, no minister or magistrate being present and no third person taking part, neither party being a Quaker, does not make a valid marriage. Commonwealth v. Munson, 127 Mass. 459. See Meister v. Moore, 96 U. S. 76. Hutchins v. Kimmell, 31 Mich. 126, was to the effect that such a marriage is valid if that is the parties' belief.

But a precise compliance with all the requirements of law has not been deemed necessary; and as to some important provisions it has been held that a disregard of them was punishable, but did not vitiate the marriage; as the want of consent of parents or guardians where one party is a minor, or an omission of the publication of banns. The essential thing seems to be the declaration of the consent, by both parties, before a person authorized to receive such a declaration by law. (a) l

It is held in Illinois, that where persons cohabit as man and wife, the presumption of law is that they are married, to be valid until overthrown by evidence. (aa)

Consent is the essence of this contract, as of all others. It cannot be valid, therefore, if made by those who had not sufficient minds to consent; as by idiots or insane persons. (b) 2 Such

(zz) People v. Slack, 15 Mich. 108.

(a) Partem v. Hervey, 1 Gray, 119; Milford v. Worcester, 7 Maw. 48; Ligonia v. Buxton, 2 Greenl. 102; Londonderry v. Chester, 2N.E 268.

(aa) Myatt v. Myatt, 44 111. 478.

(b) Elliott v. Gurr, 2 Phillim. 19; Browning v. Reane, id. 69; True v. Ran-ney, 1 Foster (N. H.), 62. But it is said in Vin. Abr. Marriage (D), pl. 3: uIf an idiot contracts marriage it shall bind him," and authorities are cited to that effect. And in Shafher v. The State, 20 Ohio, 1, it was held, that marriages by boys under 18 and girls under 14 years of age are invalid unless confirmed by cohabitation subsequent to those ages, and do not subject the parties marrying to the punishment of bigamy upon remarrying.

1 A mock marriage in jest is no marriage. McClurg v. Terry, 6 C. E. Green, 225. 2 Waymire v. Jetmore, 22 Ohio 8t. 271; but a valid marriage may be entered into during a lucid interval, Banker v. Banker, 68 N. Y. 409; Smith v. Smith, 47 Miss. 21U marriages are said to be void at common law, and by the statutes of many States. But it is also held that the marriage is only voidable; and if it be not set aside during the husband's life, the wife becomes entitled at his death to the rights of a widow. (bb) It is certainly better that the marriage should be declared void by a competent tribunal, after a judicial ascertainment of the facts. Courts having full equity powers may make this inquiry and decree. (c) But some of the States have provided for doing this by common-law courts.

From the same necessity of consent, a marriage procured •82 by * force or fraud is also void; but the force and fraud must be certain and extreme. (d) l So if another husband or wife of either of the parties be living. (e) Bigamy, or, as it should be called, polygamy, is an indictable offence in all the States; but exceptions are made in cases of long absence, with belief of the death of the party, etc. But these exceptions to the criminality of the act leave the question as to the validity of the second marriage as it was before. (f)2 So if the parties are within the prohibited degrees of kindred. (g) The age of

(bb) Wiser v. Lockwood, 42 Vt. 720.

(c) Wightman v. Wightman, 4 Johns. Ch. 343. In True v. Ranney, 1 Foster (N. H.), 52, the court assumed the power of declaring a marriage null for imbecility of the woman, on a petition of her next friend. So also in a case of insanity of the wife which was kept concealed from her husband by her friends. Keyes v. Keyes, 2 Foster (N. H.)t 664.

(d) Dalrymple v. Dalrymple, 2 Hagg. Cons. 104; Sullivan v. Sullivan, id. 246.