[Footnote h: Dr & Stud. d. 2. c. 42. Noy's max. c. 44.]

IF a servant, lastly, by his negligence does any damage to a stranger, the master shall answer for his neglect: if a smith's servant lames a horse while he is shoing him, an action lies against the master, and not against the servant. But in these cases the damage must be done, while he is actually employed in the master's service; otherwise the servant shall answer for his own misbehaviour. Upon this principle, by the common law[i], if a servant kept his master's fire negligently, so that his neighbour's house was burned down thereby, an action lay against the master; because this negligence happened in his service: otherwise, if the servant, going along the street with a torch, by negligence sets fire to a house; for there he is not in his master's immediate service, and must himself answer the damage personally. But now the common law is, in the former case, altered by statute 6 Ann.

c. 3. which ordains that no action shall be maintained against any, in whose house or chamber any fire shall accidentally begin; for their own loss is sufficient punishment for their own or their servants'

carelessness. But if such fire happens through negligence of any servant (whose loss is commonly very little) such servant shall forfeit 100_l_, to be distributed among the sufferers; and, in default of payment, shall be committed to some workhouse and there kept to hard labour for eighteen months[k]. A master is, lastly, chargeable if any of his family layeth or casteth any thing out of his house into the street or common highway, to the damage of any individual, or the common nusance of his majesty's liege people[l]: for the master hath the superintendance and charge of all his houshold. And this also agrees with the civil law[m]; which holds, that the _pater familias_, in this and similar cases, "_ob alterius culpam tenetur, sive servi, sive liberi_."

[Footnote i: Noy's max. c. 44.]

[Footnote k: Upon a similar principle, by the law of the twelve tables at Rome, a person by whose negligence any fire began was bound to pay double to the sufferers; or if he was not able to pay, was to suffer a corporal punishment.]

[Footnote l: Noy's max. c. 44.]

[Footnote m: _Ff._ 9. 3. 1. _Inst._ 4. 5. 1.]

WE may observe, that in all the cases here put, the master may be frequently a loser by the trust reposed in his servant, but never can be a gainer: he may frequently be answerable for his servant's misbehaviour, but never can shelter himself from punishment by laying the blame on his agent. The reason of this is still uniform and the same; that the wrong done by the servant is looked upon in law as the wrong of the master himself; and it is a standing maxim, that no man shall be allowed to make any advantage of his own wrong.

CHAPTER THE FIFTEENTH.

OF HUSBAND AND WIFE.

THE second private relation of persons is that of marriage, which includes the reciprocal duties of husband and wife; or, as most of our elder law books call them, of _baron_ and _feme_. In the consideration of which I shall in the first place enquire, how marriages may be contracted or made; shall next point out the manner in which they may be dissolved; and shall, lastly, take a view of the legal effects and consequence of marriage.

I. OUR law considers marriage in no other light than as a civil contract. The _holiness_ of the matrimonial state is left entirely to the ecclesiastical law: the temporal courts not having jurisdiction to consider unlawful marriages as a sin, but merely as a civil inconvenience. The punishment therefore, or annulling, of incestuous or other unscriptural marriages, is the province of the spiritual courts; which act _pro salute 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 cases, where the parties at the time of making it were, in the first place, _willing_ to contract; secondly, _able_ to contract; and, lastly, actually _did_ contract, in the proper forms and solemnities required by law.

[Footnote a: Salk. 121.]

FIRST, they must be _willing_ to contract. "_Consensus, non concubitus, facit nuptias_," is the maxim of the civil law in this case[b]: and it is adopted by the common lawyers[c], who indeed have borrowed (especially in antient times) almost all their notions of the legitimacy of marriage from the canon and civil laws.

[Footnote b: _Ff._ 50. 17. 30.]

[Footnote c: Co. Litt. 33.]

SECONDLY, they must be _able_ to contract. In general, all persons are able to contract themselves in marriage, unless they labour under some particular disabilities, and incapacities. What those are, it will here be our business to enquire.

NOW these disabilities are of two sorts: first, such as are canonical, and therefore sufficient by the ecclesiastical laws to avoid the marriage in the spiritual court; but these in our law only make the marriage voidable, and not _ipso facto_ void, until sentence of nullity be obtained. Of this nature are pre-contract; consanguinity, or relation by blood; and affinity, or relation by marriage; and some particular corporal infirmities. And these canonical disabilities are either grounded upon the express words of the divine law, or are consequences plainly deducible from thence: it therefore being sinful in the persons, who labour under them, to attempt to contract matrimony together, they are properly the object of the ecclesiastical magistrate's coercion; in order to separate the offenders, and inflict penance for the offence, _pro salute animarum_. But such marriages not being void _ab initio_, but voidable only by sentence of separation, they are esteemed valid to all civil purposes, unless such separation is actually made during the life of the parties. For, after the death of either of them, the courts of common law will not suffer the spiritual court to declare such marriages to have been void; because such declaration cannot now tend to the reformation of the parties[d].

And therefore when a man had married his first wife's sister, and after her death the bishop's court was proceeding to annul the marriage and b.a.s.t.a.r.dize the issue, the court of king's bench granted a prohibition _quoad hoc_; but permitted them to proceed to punish the husband for incest[e]. These canonical disabilities, being entirely the province of the ecclesiastical courts, our books are perfectly silent concerning them. But there are a few statutes, which serve as directories to those courts, of which it will be proper to take notice. By statute 32 Hen. VIII. c. 38. it is declared, that all persons may lawfully marry, but such as are prohibited by G.o.d's law; and that all marriages contracted by lawful persons in the face of the church, and consummate 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 impediments might however be bought off for money) it is declared by the same statute, that nothing (G.o.d's law except) shall impeach any marriage, but within the Levitical degrees; the farthest of which is that between uncle and niece[f]. By the same statute all impediments, arising from pre-contracts to other persons, were abolished and declared of none effect, unless they had been consummated with bodily knowlege: in which case the canon law holds such contract to be a marriage _de facto_. But this branch of the statute was repealed by statute 2 & 3 Edw. VI. c. 23. How far the act of 26 Geo. II. c. 33.

(which prohibits all suits in ecclesiastical courts to compel a marriage, in consequence of any contract) may collaterally extend to revive this clause of Henry VIII's statute, and abolish the impediment of pre-contract, I leave to be considered by the canonists.

[Footnote d: _Ibid._]

[Footnote e: Salk. 548.]

[Footnote f: Gilb. Rep. 158.]

THE other sort of disabilities are those which are created, or at least enforced, by the munic.i.p.al laws. And, though some 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 disabilities make the contract void _ab initio_, and not merely voidable: not that they dissolve a contract already formed, but they render the parties incapable of forming any contract at all: they do not put asunder those who are joined together, but they previously hinder the junction. And, if any persons under these legal incapacities come together, it is a meretricious, and not a matrimonial, union.

1. THE first of these legal disabilities is a prior marriage, or having another husband or wife living; in which case, besides the penalties consequent upon it as a felony, the second marriage is to all intents and purposes void[g]: polygamy being condemned both by the law of the new testament, and the policy of all prudent states, especially in these northern climates. And Justinian, even in the climate of modern Turkey, is express[h], that "_duas uxores eodem tempore habere non licet_."

[Footnote g: Bro. Abr. _t.i.t. b.a.s.t.a.r.dy._ pl. 8.]

[Footnote h: _Inst._ 1. 10. 6.]

2. THE next legal disability is want of age. This is sufficient to avoid all other contracts, on account of the imbecillity of judgment in the parties contracting; _a fortiori_ therefore it ought to avoid this, the most important contract of any. Therefore if a boy under fourteen, or a girl under twelve years of age, marries, this marriage is only inchoate and imperfect; and, when either of them comes to the age of consent aforesaid, they may disagree and declare the marriage void, without any divorce or sentence in the spiritual court. This is founded on the civil law[i]. But the canon law pays a greater regard to the const.i.tution, than the age, of the parties[k]: for if they are _habiles ad matrimonium_, it is a good marriage, whatever their age may be. And in our law it is so far a marriage, that, if at the age of consent they agree to continue together, they need not be married again[l]. If the husband be of years of discretion, and the wife under twelve, when she comes to years of discretion he may disagree as well as she may: for in contracts the obligation must be mutual; both must be bound, or neither: and so it is, _vice versa_, when the wife is of years of discretion, and the husband under[m].

[Footnote i: _Leon. Const.i.t._ 109.]

[Footnote k: _Decretal._ _l._ 4. _t.i.t._ 2. _qu._ 3.]

[Footnote l: Co. Litt. 79.]

[Footnote m: _Ibid._]

3. ANOTHER incapacity arises from want of consent of parents or guardians. By the common law, if the parties themselves were of the age of consent, there wanted no other concurrence 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 emanc.i.p.ated, 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 emanc.i.p.ated) 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 const.i.tution. On the one hand, it prevents the clandestine marriages of minors, which are often a terrible inconvenience to those private families wherein they happen. On the other hand, restraints upon marriage, especially among the lower cla.s.s, are evidently detrimental to the public, by hindering the encrease of people; and to religion and morality, by encouraging licentiousness and debauchery among the single of both s.e.xes; and thereby destroying one end of society and government, which is, _concubitu prohibere vago_. And of this last inconvenience the Roman laws were so sensible, that at the same time that they forbad marriage without the consent of parents or guardians, they were less rigorous upon that very account with regard to other restraints: for, if a parent did not provide a husband for his daughter, by the time she arrived at the age of twenty five, and she afterwards made a slip in her conduct, he was not allowed to disinherit her upon that account; "_quia non sua culpa, sed parentum, id commisisse cognoscitur_[u]."

[Footnote n: 6 & 7 W. III. c. 6. 7 & 8 W. III. c. 35. 10 Ann. c. 19.]

[Footnote o: _Ff._ 23. 2. 2, & 18.]

[Footnote p: _Ff._ 1. 5. 11.]

[Footnote q: _Cod._ 5. 4. 1, & 20.]

[Footnote r: _Inst._ 1. 10. 1.]

[Footnote s: Domat, of dowries --. 2. Montesq. Sp. L. 23. 7.]

[Footnote t: _Vinnius in Inst._ _l._ 1. _t._ 10.]

[Footnote u: _Nov._ 115. --. 11.]

4. A FOURTH incapacity is want of reason; without a competent share of which, as no other, so neither can the matrimonial contract, be valid.

Idiots and lunatics, by the old common law, might have married[w]; wherein it was manifestly defective. The civil law judged much more sensibly, when it made such deprivations of reason a previous impediment; though not a cause of divorce, if they happened after marriage[x]. This defect in our laws is however remedied with regard to lunatics, and persons under frenzies, by the express words of the statute 15 Geo. II. c. 30. and idiots, if not within the letter of the statute, are at least within the reason of it.

[Footnote w: 1 Roll. Abr. 357.]

[Footnote x: _Ff._ 23. _t.i.t._ 1. _l._ 8. & _t.i.t._ 2. _l._ 16.]

LASTLY, the parties must not only be willing, and able, to contract, but actually must contract themselves in due form of law, to make it a good civil marriage. Any contract made, _per verba de praesenti_, or in words of the present tense, and in case of cohabitation _per verba de futuro_ also, between persons able to contract, was before the late act deemed a valid marriage to many purposes; and the parties might be compelled in the spiritual courts to celebrate it _in facie ecclesiae_. But these verbal contracts are now of no force, to compel a future marriage[y]. Neither is any marriage at present valid, that is not celebrated in some parish church or public chapel, unless by dispensation from the arch-bishop of Canterbury. It must also be preceded by publication of banns, or by licence from the spiritual judge. Many other formalities are likewise prescribed by the act; the neglect of which, though penal, does not invalidate the marriage. It is held to be also essential to a marriage, that it be performed by a person in orders[z]; though the intervention of a priest to solemnize this contract is merely _juris positivi_, and not _juris naturalis aut divini_: it being said that pope Innocent the third was the first who ordained the celebration of marriage in the church[a]; before which it was totally a civil contract. And, in the times of the grand rebellion, all marriages were performed by the justices of the peace; and these marriages were declared valid, without any fresh solemnization, by statute 12 Car. II. c. 33. But, as the law now stands, we may upon the whole collect, that no marriage by the temporal law is _ipso facto_ void, that is celebrated by a person in orders,--in a parish church or public chapel (or elsewhere, by special dispensation)--in pursuance of banns or a licence,--between single persons,--consenting,--of sound mind,--and of the age of twenty one years;--or of the age of fourteen in males and twelve in females, with consent of parents or guardians, or without it, in case of widowhood.

And no marriage is _voidable_ by the ecclesiastical law, after the death of either of the parties; nor during their lives, unless for the canonical impediments of pre-contract, if that indeed still exists; of consanguinity; and of affinity, or corporal imbecillity, subsisting previous to the marriage.

[Footnote y: Stat. 26 Geo. II. c. 33.]

[Footnote z: Salk. 119.]