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If a fervant, laftly, by his negligence does any damage to a ftranger, the master shall answer for his neglect: if a smith's fervant lames a horfe while he is fhoing him, an action lies against the mafter, and not against the servant. But in these cases the damage must be done, while he is actually employed in the mafter's fervice; otherwise the fervant fhall anfwer for his own mifbehaviour. Upon this principle, by the common law', if a fervant kept his master's fire negligently, fo that his neighbour's house was burned down thereby, an action lay against the master; because this negligence happened in his fervice: otherwise if the fervant, going along the street with a torch, by negligence fets fire to a house; for there he is not in his master's immediate fervice, and muft himself answer the damage perfonally. But now the common law is, in the former cafe, altered by statute 6 Ann. c. 3. which ordains that no action fhall be maintained against any, in whose house or chamber any fire shall accidentally begin; for their own lofs is fufficient punishment for their own or their fervants' carelessness. But if such fire happens through negligence of any fervant (whose lofs is commonly very little) such servant fhall forfeit 100l. to be diftributed among the sufferers; and, in default of payment, shall be committed to some workhouse and there kept to hard labour for eighteen months*. A mafter is, laftly, chargeable if any of the family layeth or cafteth any thing out of his houfe into the street or common highway, to the damage of any individual, or the common nufance of his majefty's liege people': for the master hath the fuperintendance and charge of all his houfhold. And this also agrees with the civil law"; which holds, that the pater familias, in this and fimilar cafes, "ob alterius culpam tenetur, "five fervi, five liberi."
i Noy's max. c. 44.
k Upon a imilar principle, by the law of the twelve tables at Rome, a perion by whofe negligence any fire began was bound to pay double to the fafferers; or, it he was
not able to pay, was to fuffer a corporal puhment.
Noy's max c. 44. w Ft. 2. 3. 1.
dr.ft. 4. 5. 1.
WE may obferve, 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 frequently 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 still uniform and the fame; that the wrong done by the fervant is looked upon in law as the wrong of the mafter himself; and it is a standing maxim, that no man fhall be allowed to make any advantage of his own wrong.
HE fecond private relation of perfons is that of marriage, which includes the reciprocal rights 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 shall in the first place enquire, 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 ftate is left entirely to the ecclefiaftical law: the temporal courts not having jurifdiction to confider unlawful marriage as a fin, but merely as a civil inconvenience. The punishment therefore, or annulling of incestuous or other unfcriptural marriages, is the province of the fpiritual courts; which act pro falute animae'. 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 firft place, willing to contract; fecondly, able to contract; and, laftly, actually did contract, in the proper forms and folemnities required by law.
FIRST, they must be willing to contract. "Confenfus, non concubitus, facit nuptias," is the maxim of the civil law in this cafe and it is adopted by the common lawyers, who indeed have borrowed (efpecially in antient times) almost all their notions of the legitimacy of marriage from the canon and civil laws.
SECONDLY, they must be able to contract. In general, all perfons are able to contract themfelves in marriage, unless they labour under fome particular difabilities, and incapacities. What thote are, it will here be our bufinels to enquire.
b Ff. 50. 17. 30. @ Co. Litt. 33.
Now thefe difabilities are of two forts: first, fuch as are canonical, and therefore fufficient by the ccclefiaftical laws to avoid the marriage in the spiritual 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 pre-contract; confanguinity, or relation by blood; and affinity, or relation by marriage; and fome particular corporal infirmities. And these canonical difabilities are either grounded upon the exprets 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 magistrate's coercion; in order to separate 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 esteemed valid to all civil purposes, unlefs 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 reformation of the partics. And therefore when a man had married his firft wife's fifter, and after her death the bishop's court was proceeding to annul the mar
riage and bastardize the issue, the court of king's bench granted a prohibition quoad hoc; but permitted them to proceed to punish the husband for inceft. These 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 thofe 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 knowlege,and fruit of children, shall be indissoluble. And (because in the times of popery a great variety of degrees of kindred were made impediments to marriage, which impcdiments 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. By the fame ftatute all impediments, arifing from pre-contracts to other perfons, were abolished and declared of none effect, unless they had been confuminated with bodily knowlege: 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's VIII's ftatute, and abolish the impediment of pre-contract, I leave to be confidered by the
THE other fort of difabilities are those which are created, or at leaft 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 so much in the light of any moral offence, as on account of the civil inconveniences they draw after them. These civil difabilities make the contract void ab initio, and not merely voidable: not that they diffolve a contract already Ggg 2 formed