highway, to the damage of any individual, or the common nuisance of his majesty's liege people; (n) 23 for the master hath the superintendence and charge of all his household, And this also agrees with the civil law; (0) which holds that the pater fumilias, in this and similar cases, “ob alterius "culpam tenetur, sivi sive liberi.” 23

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 [432] 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.

n Noy's Max. c. 44.

(22) 1 East, 106. 2 H. Bla. 412.

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

(23) A master is liable to be sued for the injuries occasioned by the neglect or unskilfulness of his servant whilst in the course of his employment, though the act was obviously tortious and against the master's consent; as for fraud, deceit, or any other wrongful act. Salk. 289. Cro. Jac. 473. 1 Stra. 653 Roll. Ab. 95. 1. 15. 1 East, 106. 2 H. Bla. 442. 3 Wils. 313. 2 Bla. Rep. 845. sed vid. Com. Dig tit. Action on the case for deceit, B. A master is liable for the servant's negligent driving of a carriage or navigating a ship, 1 East, 105., or for a libel inserted in a newspaper of which the defendant was a proprietor. 1 B. & P. 409. The master is also liable not only for the acts of those immediately employed by him, but even for the act of a sub-agent, however remote, if committed in the course of his service, 1 B. & P 404. 6 T. R. 411.; and a corporate company are liable to be sued for the wrongful act of their servants, 3 Camp. 403.; when not, see 4 M. & S. 27. But the wrongful or unlawful acts must be committed in the course of the servant's employment, and whilst the servant is acting as such; therefore a person who hires a postchaise is not liable for the negligence of the driver, but the action must be against the driver or owner of the chaise and horses, 5 Esp. 35. Laugher v. Pointer, 4 B. & C. (sed vid 1 B. & P. 409.) and it should seem he would be liable if the chaise and not the coachman or horses were hired. 4 B. & A. 590. A master is not in general liable for the criminal acts of his servant wilfully committed by him. 2 Stra. 885. 29 Hen. VI. 34.; neither is he liable if the servant wilfully commit an injury to another; as if a servant wilfully drive his master's carriage against another's, or ride or beat, a distress taken damage feasant. 1 East, 106. Rep. T. H 87. 3 Wils. 217. 1 Salk. 282. 2 Rol. Ab. 553. 4 B. & A. 590. In some cases, however, where it is the duty of the master to see that the servant acts correctly, he may be liable criminally for what the servant has done; as where a baker's servant introduced noxious materials in his bread 3 M. & S. 11. 1 Ld. Raym. 264. 4 Campb. 12. However, on principles of public policy, a sheriff is liable civilly for the trespass, extortion, or other wilful misconduct of his bailiff 2 T. R. 154 3 Wils. 317. 8 T. R. 431. A servant cannot in general be sued by a third person for any neglect or nonfeasance which he is guilty of when it is committed on behalf of, and under the express or implied authority of, his master; thus if a coachman lose a parcel his master is liable, and not himself. 12 Mod. 488. Say. 41. Roll. Ab. 94. pl. 5. Cowp. 403. 6 Moore, 47. So a servant is not liable for deceit in the sale of goods, or for a false warranty. Com. Dig. Action sur case for deceit, B. 3 P. W. 379. Roll Ab 95. But he is liable for all tortious acts and wilful trespasses, whether done by the authority of the master or not. 12 Mod. 448. 1 Wils. 328 Say. 41. 2 Mod. 242. 6 Mod. 2:2. 6 East, 540. 4 M. & S. 259. 5 Burr 2687 6 T. R. 300. 3 Wils. 146. And in every case where a master has not power to do a thing, whoever does by his command is a trespasser, Roll. Ab. 90.; and this though the servant acted in total ignorance of his master's right. 12 Mod. 448. and supra. 2 Roll. Ab. 431. And an action may in some cases be supported against a servant for a misfeasance or malfeasance; thus if a bailiff voluntarily suffer a prisoner to escape, he would be liable. 12 Mod. 488. 1 Mod. 209. 1 Salk. 18. 1 Lord Ray. 655.

It is a general rule that no action is sustainable against an intermediate agent for damage occasioned by the negligence of a sub-agent, unless such intermediate agent personally interfered and caused the injury. 6 T. R. 411. 1 B. & P. 405 411. Cowp. 406. 2 B. & P. 438. 6 Moore, 47. 2 P. & R. 33. Chitty. See Johnson's Digest, title Master and Servant. Reeve's Domestic Relations, tit. Master and Servant.

CHAP. XV.

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 consequences of marriage.

I. Our law considers marriage in no other light than as a civil contract. 2 The holiness of the matrimonial state is left entirely to the ecclesiastical law:

(1) See in general Bac. Ab. Marriage; Com, Dig. Baron and Feme; Burn Ecc. L. Marriage; Dr. Haggard's Rep.; Phillimore's Eccles. Cases.; Selwyn N. P. tit. Adultery.

(2) Therefore an action is sustainable for a breach of promise to marry, where the contract to marry was mutual, 1 Rol. Ab. 22. I. 5. 1 Sid. 180. 1 Lev. 147. Carth. 467. Freem. 95. ; and though one of the parties be an infant, yet the contract will be binding on the other. 2 Stra. 937. post 426. n. 13. The action is sustainable by a man against a woman, Carth. 467. 1 Salk. 24. 5 Mod. 511.; but an executor cannot sue or be sued. 2 M. & S. 408.

A promise to marry is not within the statute of frauds, and need not be in writing, 1 Stra. 34. 1 Lord Ray. 316. Bul. N. P. 280.; nor when in writing need it be stamped. 2 Stark. 351.

With respect to the evidence to prove the contract of marriage, it has been held in a casc where the promise of the man was proved, and no actual promise of the woman, that evidence of her carrying herself as consenting and approving his promise was sufficient. 3 Salk. 16. 1 Salk. 24. n. b.

And where A stated to the father of the plaintiff that he had pledged himself to marry his daughter in six months, or in a month after Christmas, it was considered evidence from which a jury might infer a promise to marry generally, the proof varying from the statement in the declarations of a more particular promise, 1 Stark. 82.

A bill in equity lies to compel the defendant to disclose whether he promised to marry. Forrest Rep. 42.

If either party give to the other something, as money, &c. which is accepted in satisfaction of the promise, it is a good discharge of the contract. 6 Mod. 156.

If the intended husband or wife turn out on inquiry to be of bad character, it is a sufficient defence for rescinding the engagement; but a mere suspicion of such fact is not. Holt C. N. P. 151. 4 Esp. Rep. 256.

No bill in equity, or other proceeding, is sustainable to compel the specific performance of a promise to marry; and the 4 Geo. IV. c. 76. s. 27. enacts, that marriage shall not be compelled in any ecclesiastical court, in performance of any contract; consequently, the only legal reme- dy is an action at law to recover damages for the breach of contract.

It may be as well here to observe, that our law favours and encourages lawful marriages, and every contract in restraint of marriage is illegal, as being against the sound policy of the law. Hence a wager that the plaintiff would not marry within six years was holden to be void. 10 East, 22. For although the restraint was partial, yet the immediate tendency of such contract, as far as it went, was to discourage marriage, and no circumstances appeared to shew that the restraint in the particular instance was prudent and proper; and see further 4 Bur. 2225. 2 Vern. 102. 215. 2 Eq. Ca. Ab. 248. 1 Atk. 287. 2 Atk. 538. 540. 10 Ves. 429. 1 P. Wms. 181. 3 & S. 463.

On the other hand, contracts in procuration of marriage are void, at least in equity. 1 Ch. Rep. 47. 3 Ch. Rep. 18. 3 Lev. 411. 2 Chan. Ca. 176. 1 Vern. 412. 1 Ves. 503. 3 Atk. 566. Show P. C. 76. 4 Bro. P. C. 144. 8vo. ed. Co. Lit. 206. (b.) Forest Rep. 142. and semble it would be so at law. 2 Wils. 347. 1 Salk. 156. acc. Hob. 10. cont. Persons conspiring to procure the marriage of a ward in chancery by undue means, are liable not only to be committed, but to be indicted for a conspiracy. 3 Ves. & B. 175. (3) No formal solemnization of marriage by our laws is necessary. A contract of marriage Chitty. made per verba de presenti, is as valid as if made in facie ecclesiæ. Jackson v. Claw, 18 John. Rep. 346. Hantz v. Sealy, 6. Binn. 405.

In all cases, except in prosecutions for Bigamy and in actions for Criminal Conversation, a marriage may be proved from cohabitation, reputation, &c. Fenton v. Reed, 4 John. Rep. 52.

Ed.

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 a 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.

First, they must be willing to contract. "Consensus, non con"cubitus, facit nuptias," is the maxim of the civil law in this case: (b) [434] and it is adopted by the common lawyers, (c) 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 labour under some particular disabilities, and incapacities. 5 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 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 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 [435] annul the marriage 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. (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. 38.7 it is declared, that all persons may lawfully marry, but such as are b Ff. 50. 17. 30.

6

a Salk. 121.

c Co. Litt. 33.

d Co. Litt. 33.

e 2 Salk. 548.

(4) We shall hereafter, in the succeeding volumes, notice the offence of the forcible abduction and marriage of women, a crime vulgarly called stealing an heiress. See post 3 vol. 140. 4 vol. 208. 3 Ves & B. 173.

(5) The 2 & 3 Edw. VI. c. 21. enables the clergy to marry.

(6) Elliot v. Gurr. 2 Phil. Ecc. C. 16. And the wife is entitled to dower. 1 Moore, 225. 228. Noy. 29. Cro. Car. $52. 1 Roper, 332, 3.

(7) This act was wholly repealed by the 1 & 2 P. & M. c. 8. s. 19.; but so much as was not repealed by the 2 &*3 Edw. VI. c. 23. was revived by the 1 Eliz. c. 1. s. 11.

8

prohibited by God's law; and that all marriages contracted by lawful persons in the face of the church, and consummated 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; 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 knowledge: 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. 19 (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.

10

The other sort of disabilities are those which are created, or at least enforced, by the municipal 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 [436] contract already formed, but they render the parties incapable of performing 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.

f Gilb. Rep. 158.

(8) This act does not specify what these prohibitions are, but by the 25 Hen. VIII. c. 22. s. 3. these prohibitory degrees are stated, and it is enacted, "that no subjects of this realm, or in any of his majesty's dominions, shall marry within the following degrees, and the children of such unlawful marriages are illegitimate, viz. a man may not marry his mother or stepmother, his sister, his son's or daughter's daughter, his father's daughter by his stepmother, his aunt, his uncle's wife, his son's wife, his brother's wife, his wife's daughter, his wife's son's daughter, his wife's daughter's daughter, his wife's sister;" and by sec. 14. this provision shall be interpreted of such marriages where marriages were solemnized, and carnal knowledge had; and see the 28 Hen. VIII. c. 7. It is doubtful whether the 25 Hen. VIII. c. 22. was repealed by 28 Hen. VIII. c. 7. s. 3. and 1 Mar. sess 2. c. 1. See Burn Ecc L. Marriage, I. Chitty.

(9) See table of Levitical degrees, Burn. Ecc. L. tit. Marriage, I. The prohibited degrees are all those 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 it is universally true, that all who are in the 4th or any higher degree are permitted to marry; as first-cousins are in the 4th degree, and therefore may marry, and nephew and great-aunt, or niece and great-uncle, are also in the 4th degree, and may intermarry; and though a man may not marry his grandmother, it is certainly true that he may marry her sister. Gibs. Cod. 413. See the computation of degrees by the civil law, 2 rol. p. 207. The same degrees by affinity are prohibited. Affinity always arises by the marriage of one of the parties so related; as a husband is related by affinity to all the consanguinei of his wife; and vice versa the wife to the husband's consanguinei; for the husband and wife being considered as one flesh, those who are related to the one by blood, are related to the other by affinity. Gibs. Cod. 412. Therefore a man after his wife's death cannot marry her sister, aunt, or niece, or daughter by a former husband. 2 Phil. Ecc. C. 359. So a woman cannot marry her nephew by affinity, such as her former husband's sister's son. 2 Phil. Ecc. C. 18. So a niece of a wife cannot after her death marry the husband. Noy. Rep. 29. But the consanguinei of the husband are not at all related to the consanguinei of the wife. Hence two brothers may marry two sisters, or father and son a mother and daughter; or if a brother and sister marry two persons not related, and the brother and sister die, the widow and widower may intermarry; for though a man is related to his wife's brother by affinity, he is not so to his wife's brother's wife, whom, if circumstances would admit, it would not be unlawful for him to marry, Chitty.

(10) See the last act, 4 Geo. IV. c. 76. s. 27.

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, 12 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. 13 And Justinian, even in the climate of modern Turkey, is express, (h) that "duas uxores eodem tempore habere non licet."

2. The next legal disability is want of age. This is sufficient to avoid all other contracts, on account of the imbecility 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 constitution, 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. (1) 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) 15

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 [437] marriage valid; and this was agreeable to the canon law. But, by several statutes, (n) penalties of 100l. 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

16

h Inst. 1. 10. 6. k Decretal, 1. 4. tit. 2. qu. 3. n 6 & 7 Will. III. c. 6. 7 & 3 W. III. c. 35. 10 Ann. c. 19.

(11) The ecclesiastical court will, on suit instituted, annul the second marriage, although it is al solutely void. 2 Phil. E. C. 321. It is so absolutely void that the second wife, however innocent, is not entitled to dower. Moore, 226. 1 Roper, 332. Chitty. (12) See the exceptions, and further observations, &c. as to bigamy and polygamy, post 4 vol,

164.

(13) By statute a second marriage is not legal, though the former husband or wife may have been absent and not heard of, for more than five years; the statute merely purges the felony.Fenton v. Reed. 4 John. Rep. 52. Ed.

(14) The ecclesiastical court will annul the marriage by licence of a minor without consent of parents or guardians. 2 Phil. Ecc. C. 92, 285, 365. 327. 328. 341. 343. 347.; but a marriage of an infant by banns is binding unless there be fraud in publication, as by a false name, &c. 2 Phil, Ecc. C. 365.

But if either party be under seven years of age, the marriage is absolutely void: but marriages of princes made by the state in their behalf at any age are held good, though many of these contracts have been broken through. Swinh. Mat. Contr. See Ward's Law of Nations. The age of consent within the 1'Jac. I. c. 11. s. 3. is fourteen in males and twelve years in females. Russell & R. Cro. C. 48. Chitty.

(15) But where there are mutual promises to marry between two persons, one of the age of 21 and the other under that age, the first is bound by the contract, and on the side of the minor it is voidable; or for a breach of the promise on the part of the person of full age, the minor may maintain an action and recover damages, but no action can be maintained for a similar breach of the contract on the side of the minor. Holt v. Ward Clarencieux, Str. 937. S. C. Fitzg. 175. 275. Bruce v. Warwick, 2 M. & S. 205. 6 Taunt. 118. ante 433. n. 2. Chitty, (16) By the 26 Geo. II. c. 33. s. 7. if any clergyman shall marry a couple out of a church or a public chapel, where bangs had been usually published before 1754, unless by special license V OL.İ, 43