IF a fervant, laftly, by his negligence does any damage to a stranger, the master shall answer for his neglect: if a smith's fervant lames a horse while he is fhoeing him, an action lies against the mafter, and not againft the fervant. But in thefe cafes the damage must be done, while he is actually employed in the mafter's fervice; otherwise the fervant fhall answer for his own miíbehaviour. 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 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 house; for there he is not in his mafter's immediate fervice: and muft himself anfwer 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 fhall be maintained against any, in whose house or chamber any fire fhall accidentally begin; for their own lofs is fufficient punishment for their own or their fervant's careleffness. But if fuch fire happens through negligence of any fervant (whofe 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 workhouse and there kept to hard labour for eighteen months ". 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 nufance of his majefty's liege people: for the master hath the fuperintendance and charge of all his houfhold. 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." Noy's max. c. 44. 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 futter ers; or, if he was not able to pay, was n Noy's max. c. 44. Ee 3 We 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 anfwerable for his fervant's misbehaviour, but never can shelter himself from punishment by laying the blame on his agent. The reafon 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 fhall be allowed to make any advantage of his own wrong. CHAPTER THE FIFTEENTH. OF HUSBAND AND WIFE. HE fecond private relation of perfons is that of marriage, which includes the reciprocal right and duties of husband and wife; or, as moft 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 matrimonial 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 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 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, they must be willing to contract. « Confenfus non "concubitus, faciat 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 themselves in marriage, unless they labour under fome particular difabilities, and incapacities. What thofe are, it will be here our bufinefs to inquire. Now thefe difabilities are of two forts: first, fuch 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 of fenders, and inflict penance for the offence, pro falute anima But fuch marriages not being void ab initio, but voidable only by fentence of feparation, they are esteemed 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 reformation of the parties. And therefore when a man had married his first wife's fifter, and after her death the bishop's court was pro rum. b Ff 50. 17.30 c Co. Litt. 33. Ibid. ceeding ceeding to annul the marriage and baftardize the iffue, the court of king's bench granted a prohibition quoad hoc; but permitted them to proceed to punish the husband for inceft". These canonical disabilities 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 per fons may lawfully marry, but fuch as are prohibited by God's law; and that all marriages contracted by lawful persons in the face of the church, and confummate with bodily knowlege, 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 farthest 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 confummated 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 statute 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 pre-contract, I leave to be confidered by the canonifts. THE other fort of difabilities are thofe 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 difabilities make the contract void ab initio, and not merely voidable; not that they e Salk. 548. f Gilb. Rep. 158. diffolve |