cient punishment for their own or their servant's carelessness. But if such fire happens through negligence of any servant, (whose loss is commonly very little,) such servant shall forfeit 1007. to be distributed among the sufferers; and, in default of payment, shall be committed to some workhouse and there kept to hard labor for eighteen months m. 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 nuisance of his majesty's liege people": for the master hath the superintendance and charge of all his household. And this also agrees with the civil law; which holds that the pater familias, in this and similar cases, " ob alterius culpam tenetur, sive servi, sive liberi."

[432]

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 (12).

m 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. n Noy's max. c. 44.

o Ff. 9. 3. 1. Inst. 4. 5. 1.

(12) In a late case where it was proved that a servant wilfully drove his master's chariot against a chaise, but that the master was not present, nor did he in any manner direct, or assent to, the act of the servant, it was held by the court of king's bench, that the owner of the chaise could not maintain an action of trespass against the master. Macmanus v. Crickett. 1 East. 106. From that and the cases there cited and considered, the following general conclusions may be drawn; where the act of the servant is wilful, and such that an action of tres

pass, and not an action upon the case, must be brought, the master is not responsible, unless the act is done by his command or assent.

But where mischief ensues from the negligence or unskilfulness of the servant, so that an action upon the case must be brought, and not an action of trespass, then the master will be answerable for the consequences in an action upon the case, if it is shewn that the servant is acting in the execution of his master's business and authority.

The law which obliges masters to answer for the negligence and unskilfulness of their servants, though oftentimes severe upon an innocent person, is founded upon principles of public policy, in order to induce masters to be careful in the choice of their servants, upon whom both their own security and that of others so greatly depends. And to prevent masters from being imposed upon in the characters of their servants, it is enacted by 32 Geo. III. c. 56. that if any person shall give a false character of a servant, or a false account of his former service; or if any servant shall give such false account, or shall bring a false character, or shall alter a certificate of a character, he shall, upon conviction before a justice of the peace, forfeit 207. with 10s. costs. The informer is a competent witness. But if any servant will inform against an accomplice, he shall be acquitted.

An action was tried at the sittings after Trinity term 1792, at Guildhall, against a person who had knowingly given a false character of a man to the plaintiff, who was thereby induced to take him into his service. But this servant soon afterwards robbed his master of property to a great amount, for which he was executed; and the plaintiff recovered damages against the defendant to the extent of his loss. This was an action of great importance to the public, and there can be no doubt but it was founded in strict principles of law and justice.

CHAPTER THE FIFTEENTH.

OF HUSBAND AND WIFE.

THE second private relation of persons 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 consideration of which I shall in the first place inquire, 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 marriage 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.

#Salk. 121.

FIRST, they must be willing to contract. "Consensus non "concubitus, facit nuptias," is the maxim of the civil law in this case: and it is adopted by the common lawyers, who indeed have borrowed (especially in ancient 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 persons are able to contract themselves in marriage, unless they labor under some particular disabilities, and incapacities. What those are, it will be here our business to inquire.

:

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 labor 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 courts 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

b Ff. 50. 17. 30.

e Co. Litt. 33.

d Ibid.

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 incest. 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 God's law (1); and that all marriages contracted by lawful persons in the face of the church, and consummate with bodily knowledge, 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 (God's law excepted) shall impeach any marriage, but within the Levitical degrees (2); the farthest of which is that between uncle and niece f. By the same statute all impediments

(1) In this statute the prohibitions by God's law are not specified; but in the 25 Hen. VIII. c. 22. and 28 Hen. VIII. c. 7. the prohibited degrees are particularized. It is doubtful whether these two last statutes are in force. 2 Burn. Ec. 405. But so far they seem only to be declaratory of the Levitical law. The former declared null and void the marriage between Hen. VIII. and Catharine of Arragon, the widow of his eldest brother prince Arthur; for which a dispensation had been obtained from the pope.

The question respecting the validity of this dispensation produced that quarrel between the king and the pope, which ended in the abolition of the dominion of the latter in this country: and the inconstancy of that capricious king's affections accelerated the reformation of our religion.

(2) The prohibited degrees are all which are under the 4th degree of the civil law, except in the ascending and descending line, and by the course of nature it is scarcely a possible case that any one should ever marry his issue in the 4th degree; but between collaterals