WE may obferve, that in all the cafes here put, the mafter may be frequently a lofer by the trust reposed in his fervant, but never can be a gainer; he may frequently be anfwerable for his fervant's misbehaviour, but never can fhelter 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 master himself; 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.

THE

HE fecond private relation of persons is that of marriage, which includes the reciprocal right 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 fhall in the first place inquire, how marriages may be contracted or made; shall next point out the manner in which ́they may be diffolved; and shall, lastly, 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 inceftuous 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 (especially 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 business to inquire.

Now thefe difabilities are of two forts: first, such 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 sentence 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 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, 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 fuffer the spiritual 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

h Ff 50. 17. 39

Co. Litt. 33:

• Ibid.

ceeding

ceeding to annul the marriage and bastardize 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 statutes, which serve as directo-
ries to those courts, of which it will be proper to take notice.
By statute 32 Hen. VIII. c. 38. it is declared, that all per-
fons may lawfully marry, but such 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 know-
lege, and fruit of children, fhall be indiffoluble.
And (be-
cause in the times of popery a great variety of degrees of kin-
dred 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 f. By the fame fta-
tute all impediments, arifing from pre-contracts to other per-
fons, were abolished and declared of none effect, unless they
had been confummated with bodily knowlege : in which case
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 statute, and abolish the
impediment of pre-contract, I leave to be confidered by the
canonists,

THE other fort of difabilities are those 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. These civil disabilities make the contract void ab initio, and not merely voidable; not that they

• Salk. 548.

f Gilb. Rep. 158.

diffolve

BOOK I. diffolve 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 previoufly hinder the junction. And, if any perfons under these legal incapacities come together, it is a meretricious, and not a matrimonial, union.

1. THE first of these legal difabilities is a prior mar iage, or having another husband or wife living; in which case, befides the penalties confequent upon it as a felony, the fecond marriage is to all intents and purposes void : polygamy being condemned both by the law of the new teftament, and the policy of all prudent states, efpecially in thefe northern climates. And Justinian, even in the climate of modern Turkey, is exprefs, that "duas uxores eodem tempore habere non "licet."

2. THE next legal disability is want of age. This is fuf→ ficient to avoid all other contracts, on account of the imbe→ cillity 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 incohate and imperfect; and, when either of them comes to the age of confent aforefaid, they may difagree and declare the marriage void, without any divorce or fentence in the spiritual court. This is founded on the civil law. But the canon law pays a greater regard to the conftitution, than the age, of the parties; for if they are habiles ad matrimonium, it is a good marriage, whatever their age may be. And in our law it is fo far a marriage, that, if at the age of confent they agree to continue together, they need not be married again. If the husband be of years of difcretion, and the wife under twelve, when she comes to years of discretion he may difagree as well as she may for in contracts the obligation must be mutual; both must be bound, or neither: and so it is, vice verfa, when the wife is of years of discretion, and the husband under m