If a servant, laftly, by his negligence, does any damage to a stranger, the mafter fhall anfwer for his neglect: If a smith's fervant lames a horfe, while he is fhoeing him, an action lies against the master, and not against the fervant. But, in these cafes, the damage must be done, while he is actually employed in the mal ter's fervice; otherwise the fervant fhall anfwer for his own mifbehaviour. Upon this principle, by the common law, if a fervant kept his mafter's fire negligently, fo that his neighbour's houfe was burned down thereby, an action lay against the mafter; because this negligence happened in his fervice: Otherwife, if the fervant, going along the street with a torch, by negligence fets fire to a houfe; for there he is not in his mafter's immediate fervice, and must himself answer. the damage perfonally. But now the common law is, in the former cafe, altered by ftatute 6 Ann. c. 3. which ordains, that no action shall be maintained against any, in whose house or chamber any fire fhall accidentally begin; for their own lofs is fufficient punifhment for their own or their fervant's careleffnefs. But if fuch fire happens through negligence of any fervant, (whole lofs is commonly very little) fuch fervant fhall forfeit 100l. to be diftributed among the fufferers; and, in default of payment, fhall be committed to fome workhoufe, and there kept to hard labour for eighteen months.m. A mafter is, laftly, chargeable if any of his family layeth or cafteth any thing out of his house into the ftreet or common highway, to the damage of any individual, or the common nuifance of his majesty's liege people: For the mafter hath the fuperintendence and charge of all his household. And this alfo agrees. with the civil law; which holds that the pater familias, in this and fimilar cafes," ob alterius culpam tenetur, five "fervi, five liberi."

1 Noy's max. c. 44.

We:

m Upon a fimilar principle, by the law of the twelve tables at Rome, a perfon by whofe negligence any fire began was bound to pay double to the fufferers; or, if he was not able to pay, was to fuffer a corporal punishment.

n. Noy's max. c. 44.

o Ff. 9.3. 1.

Inft. 4. 5...

We may observe, that, in all the cafes here put, the mafter may be frequently a lofer by the truft repofed in his fervant, but never can be a gainer: He may fre quently be answerable for his fervant's misbehaviour, but never can fhelter himself from punishment, by laying the blame on his agent. The reason of this is ftill uniform and the fame; that the wrong done by the fervant is looked upon in law as the wrong of the mafter himfelf; and it is a standing maxim, that no man shall be allowed to make any advantage of his own wrong.

CHAPTER

CHAPTER THE FIFTEENTH.

OF HUSBAND AND WIFE.

THE fecond private relation of perfons

is that of marriage, which includes the reciprocal right and duties of husband and wife; or, as most of our elder law books call them, of baron and feme. In the confideration of which, I fhall, in the first place, inquire, how marriages may be contracted or made; fhall next point out the manner in which they may be diffolved; and fhall, laftly, take a view of the legal effects and confequence of marriage.

I. Our law confiders marriage in no other light than as a civil contract. The holiness of the matrimonial state is left entirely to the ecclefiaftical law; the temporal courts not having jurisdiction to confider unlawful marriage as a fin, but merely as a civil inconvenience. The punishment therefore, or annulling, of inceftuous or other unfcriptural marriages, is the province of the fpiritual courts; which act pro falute 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 cafes, where the parties, at the time of making it, were, in the first place, willing to contract; fecondly, able to contract; and, laftly, actually did contract, in the proper forms and folemnities required by law.

First,

a Salk, 121.

First, they must be willing to contract. "Confenfus, non concubitus, faciat nuptias," is the maxim of the civil law in this cafe b: And it is adopted by the common lawyers, who indeed have borrowed (especially in ancient times) almost all their notions of the legiti macy of marriage from the canon and civil laws.

Secondly, they must be able to contract. In general, all perfons are able to contract themselves in marriage, unless they labour under fome particular disabilities and incapacities. What those are, it will be here our bufinefs to inquire.

Now thefe difabilities are of two forts: First, such as are canonical, and therefore fufficient, by the ecclefiaftical laws, to avoid the marriage in the fpiritual court; but these in our law only make the marriage voidable, and not ipfo facto void, until fentence of nullity be obtained. Of this nature are precontract; confanguinity, or relation by blood; and affinity, or relation by marriage; and fome particular corporal infirmities. And thefe canonical difabilities are either grounded upon the exprefs words of the divine law, or are confequences plainly deducible from thence: It therefore being finful in the perfons who labour under them, to attempt to contract matrimony together, they are properly the object of the ecclefiaftical magiftrate's coercion; in order to feparate the offenders, and inflict penance for the offence, pro falute animarum. But fuch marriages not being void ab initio, but voidable only by fentence of feparation, they are efteemed valid to all civil purposes, unless fuch feparation is actually made during the life of the parties. For, after the death of either of them, the courts of common law will not fuffer the fpiritual court to declare fuch marriages to have been void; becaufe fuch declaration cannot now tend to the reforma

tion of the parties d. And therefore when a man had married his first wife's filter, and, after her death, the bishop's court was proceeding to annul the marriage,

and

These

and baftardize the iffue, the court of king's bench granted a prohibition qaoad hoc; but permitted them. to proceed to punish the husband for incest e. canonical difabilities being entirely the province of the ecclefiaftical courts, our books are perfectly filent concerning them. But there are a few ftatutes, which ferve as directories to those courts, of which it will be proper to take notice. By ftatute 32 Hen. VIII. c. 38. it is declared, that all perfons may lawfully marry, but fuch as are prohibited by God's law; and that all marriages contracted by lawful perfons in the face of the church, and confummate with bodily knowledge, and fruit of children, fhall be indiffoluble. And (because in the times of popery a great variety of degrees of kindred were made impediments to marriage, which impediments might, however, be bought off for money) it is declared by the fame ftatute, that nothing (God's law except) fhall impeach any marriage, but within the Levitical degrees, the fartheft of which is that between uncle and niece f. By the fame ftatute all impedi-. ments, arifing from precontracts to other perfons, were abolished and declared of none effect, unless they had been confummated with bodily knowledge: In which cafe the canon law holds fuch contract to be a marriage de facto. But this branch of the ftatute was repealed by ftatute 2 & 3 Edw. VI. c. 23. How far the act of 26 Geo. II. c. 33. (which prohibits all fuits in ecclefiaftical courts to compel a marriage, in confequence of any contract) may collaterally extend to revive this claufe of Henry VIII's ftatute, and abolish the impediment of precontract, I leave to be confidered by the canonifts.

The other fort of disabilities are those which are created, or at least enforced, by the municipal laws. And, though fome of them may be grounded on natural law, yet they are regarded by the laws of the land, not fo much in the light of any moral offence, as on account of the civil inconveniences they draw after them. Thefe civil disabilities make the contract void ab initio,

e Saik. 548.

f Gilb. Rep. 158.

and