service; whose articles of war are not enacted by parliament, but framed from time to time at the pleasure of the crown.

The marine forces are subject to the discipline of the navy while on board ship; but are regulated, while on shore, by an annual Marine Mutiny Act, containing a similar recital, and corresponding provisions to those contained in the annual act applicable to the army.

CHAPTER XIII.

OF THE PEOPLE IN THEIR PRIVATE RELATIONS.

I. Master and servant-Domestics-Apprentices — Labourers-Artificers— Seamen-Factors and brokers-Wages-Truck Act II. Husband and wife-Contract of marriage-How made-How dissolved-Its legal consequences III. Parent and child-Legitimate children—Their rights and duties-Bastards-IV. Guardian and ward-Several kinds of guardians -Jurisdiction of Court of Chancery-Incidents of infancy.

HAVING thus commented on the rights and duties of persons as standing in the public relations of magistrates and people, the method I have marked out now leads me to consider their rights and duties in private economical relations.

The hree great relations in private life are, 1. That of master and servant; 2. That of husband and wife; and 3. That of parent and child. But since the parents may be snatched away by death before they have completed their duty to their children, the law has therefore provided a fourth relation, 4. That of guardian and ward.

I. Of master and servant. Pure and proper slavery does not, nay cannot, subsist in England. A slave, the instant he lands in England, or puts his foot on the deck of a British man-of-war, becomes a freeman; that is, the law will protect him in the enjoyment of his person and his property. But the law recognises and enforces that contract whereby one freeman surrenders to another for a certain time his natural right of free action, by becoming his servant.

1. The first sort of servants acknowledged by the laws of England, are menial servants; so called from being intra mania, or domestics. The contract between them and their masters, if the hiring be general, the law construes to be for a year; upon a principle of natural equity that the servant shall serve, and the master maintain him, throughout all the revolutions of the respective seasons. But the contract may be made for any larger or smaller term; and is by custom determinable by a month's notice, or what is an equivalent in the case of the servant, a month's wages.

A servant may be dismissed without notice for a reasonable cause, such as moral misconduct, wilful disobedience to a lawful order, or neglect of duty; and in such cases he is not entitled to any wages from the day he is discharged, except those then due. But if wrongfully discharged, he is entitled to wages up to the end of the current period of his service. If, on the other hand, a servant who is to be paid quarterly, or yearly, or at any other fixed time, improperly leave his service, or is guilty of such misconduct as to justify his discharge during the currency of any such period, he is not entitled to wages for any part thereof, even to the day he quits.

Another species of servants are called apprentices (from apprendre, to learn), and are usually bound for a term of years, to serve their masters, and be maintained and instructed by them; this being usually done to persons of trade, in order to learn their art and mystery. Differences between them may, in certain cases, be settled by two justices; the master being bound to maintain and instruct, and the apprentice being compellable to serve.

A third species of servants are labourers, who are only hired by the day or the week, and do not live intra mania, as part of the family; concerning whom many statutes have at various times been passed, on principles of legislation which have long been abandoned alike in theory and in practice. Certain artificers may still, if they absent themselves from their service before the contract is completed, or do not enter on the service, be apprehended and dealt with summarily, by fine and imprisonment.

There are other statutes affecting persons who are engaged in particular occupations, but who cannot be said to form a distinct species of servants from those now under consideration. Thus the labour of children in factories is regulated by statute; the employment of women and girls is prohibited in mines, and that of boys under twelve made conditional on their having previously received a certain amount of education.

Merchant seamen are, from the increase of commerce and the consequent number of persons employed in this service, entitled to be classed as a distinct species of servants, whose contracts and conduct are in a great measure regulated by the recent acts of parliament relating to merchant shipping.

There is yet a fifth species of servants, if they may be so called, being rather in a superior, a ministerial, capacity; such as stewards, factors, and bailiffs: whom however the law considers as servants, pro tempore, with regard to such of their acts as affect their master's or employer's property. Which leads me to consider the manner in which this relation, of service, affects either the master or servant.

By apprenticeship, a person gains a settlement in that parish wherein he last served forty days; and persons serving seven years as apprentices to any trade formerly had also an exclusive right to exercise that trade in any part of England. But these exclusive rights of trading have been abolished. By service, however, all servants and labourers become entitled to wages; which must be paid in money, payment in goods or otherwise than in current coin being prohibited by the Truck Act. And the law, in some respects, places this right to wages very high. Thus in the payment of the debts of a testator or intestate they rank before specialty debts; and by the Bankrupt laws the wages of the clerks or servants, labourers or workmen of the bankrupt, may be paid in full. It remains but to notice one important incident to the relationship of master and servant, viz., that the latter cannot in general recover damages from his master for a mere non-feazance on his part, nor for the negligence of a fellow-servant in the course of his employment; for he is, as it were, rowing in the same boat with them, and is supposed on entering the service to agree to incur any danger attaching to his position.

Let us now see how strangers may be affected by this relation of master and servant. And, first, the master may maintain, that is, assist his servant in any action against a stranger; whereas, in general, it is an offence against public justice to encourage suits, by helping to bear the expense of them, and is called in law maintenance. A master likewise may justify an assault in defence of his servant, and a servant in defence of his master. And if any person retain my servant, for which the servant departeth from me, and goeth to serve the other, I may have an action against both the new master and the servant, or either of them; but if the new master did not know that he was my servant, no action lies; unless he afterwards refuse to restore him upon information and demand.

The master is answerable for the act of his servant, if done by his command, either expressly given or implied: nam, qui facit per alium, facit per se. Therefore, if the servant commit a trespass by the command of his master, the master shall be guilty of it, though the servant is not thereby excused; for he is only to obey his master in matters that are honest and lawful. If an innkeeper's servants rob his guests, the master is bound to restitution, for he must take care to provide honest servants; and whatever a servant is permitted to do in the usual course of his business, is equivalent to a general command. If I pay money to a banker's servant, the banker is answerable for it; if I pay it to a clergyman's or a physician's servant, whose usual business it is not to receive money for his master, and he embezzles it, I must pay it over again. A wife, a

friend, a relation, that usually transacts business for a man, are quoad hoc his servants; and the principal must answer for their conduct for the law implies, that they act under a general command. If I usually deal with a tradesman by myself, or constantly pay him ready money, I am not answerable for what my servant takes upon trust, for here is no implied order to the tradesman to trust my servant; but if I usually send him upon trust, or sometimes on trust and sometimes with ready money, I am answerable for all he takes up; for the tradesman cannot possibly distinguish when he comes by my order, and when upon his own authority.

If a servant, again, 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 shoeing 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. In all the cases here put, the master may be a loser by the trust reposed in a servant, but never can be a gainer; he may be answerable for his servant's misbehaviour, but never can shelter himself by laying the blame on his agent. The reason of this is, 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 take any advantage of his own wrong.

II. The second private relation of persons is that of husband and wife; arising from marriage, which our law regards 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. Taking it, therefore, in a civil light, the law allows it to be valid where the parties were willing to contract, able to contract, and did contract, in the form required by law.

Consensus non concubitus faciat nuptias, the maxim of the civil law, is therefore adopted by the common law in these cases; which further considers all persons able to contract who do not, labour under some particular disabilities and incapacities.

These disabilities were formerly considered as either canonical or civil. Consanguinity, or relationship by blood; affinity, or relationship by marriage; and corporeal infirmity were canonical disabilities, making the marriage voidable, but not ipso facto void, until sentence of nullity had been obtained. The last of these is now, however, the only canonical disability on which marriages, otherwise regular, can be declared void. The others have by statute been declared civil disabilities, which make the contract void ab initio, and not merely voidable.

Besides consanguinity and affinity, which, as already observed, we now class as civil disabilities, there are three others of a like nature; the first of which 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. The second is want of age, which is sufficient to avoid all other contracts, on account of the imbecility of judgment in the parties contracting: à 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 imperfect; and when either of them comes to the age of consent, they may declare the marriage void, without any divorce, or the sentence of any court. But it is nevertheless so far a marriage that, if at the age of consent they agree to continue together, they need not be married again. The third incapacity is want of reason; without a competent share of which, as no other, so neither can the matrimonial contract be valid.

The want of consent of parents or guardians, where either party is a minor, is treated by our law books as a civil disability; but to this it can scarcely be said to amount. The consent required by law is that of the father, or if he be dead, of the guardian; or if there be no guardian, of the mother; or if there be no mother, then of any guardian appointed by the Court of Chancery. But the marriage of a minor without the requisite consent is, nevertheless, valid; the provisions of the statute in this respect being only directory. It may be attended with a penalty, however; for if the marriage was solemnized by means of the false oath or fraudulent procurement of one of the parties, the party so offending is liable to forfeit all the property which would otherwise accrue from the marriage.

Finally, to constitute a valid marriage, the parties must not only be willing and able to contract, but actually must contract themselves in due form of law. Any contract made, per verba de præsenti, or in words of the present tense, and in case of cohabitation per verba de futuro also, was before the time of George II. so far a valid marriage, that the parties might be compelled in the spiritual courts to celebrate it in facie ecclesiæ.* But these verbal contracts are now of no force to compel a future marriage; their only operation being to give the party who is willing to perform his promise a right of civil action against the one who refuses to do so. And until the reign of William IV., no marriage was valid that was not celebrated in some parish church or public chapel, unless by dispensation from the

* In the time 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.