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 superintendence and charge of all his household.

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 can never 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.

Chapter XV.

OF HUSBAND AND WIFE.

433-446.

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. Nature 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 of other unscriptural marriage, is the province of the spiritual courts; which act pro salute 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 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.

Requisites.

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 labour

under some particular disabilities and incapacities. What those are, it will be here our business to inquire.

Disabilities.

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 offense, 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.

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 offense, as on account of the civil inconvenience they draw after them. These civil disabilities make the contract void ab initio, and not merely voidable; not that they dissolve 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 previously hinder the junction. And, if any persons under these legal disabilities come together, it is a meretricious, and not a matrimonial union.

Prior Marriage.

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, the second marriage is to all intents and purposes void.

Want of Age.

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. But the canon law pays a greater regard to the constitution, 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 so far a marriage, that, if at the age of consent they agree to continue together, they need not be married again. If the husband be of years of discretion and the wife under twelve, when she comes to years of discretion he may disagee 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.

Want of Consent of Parents.

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 marriage valid: and this was agreeable to the canon law., Want of Reason.

4. A fourth incapacity is want of reason; without a competent share of which, as no other, so neither can the matrimonial contract, be valid. It was formerly adjudged, that the issue of an idiot was legitimate, and consequently that his marriage was valid. A strange determination! since consent is absolutely requisite to matrimony, and neither idiots nor lunatics are capable of consenting to anything. And therefore the civil law judged much more sensibly when it made such deprivations of reason a previous impediment; though not a cause of divorce, if they happened after marriage. And modern resolutions have adhered to the reason of the civil law, by determining that the marriage of a lunatic, not being in a lucid interval, was absolutely void.

Parties Must Actually Contract.

Lastly, the parties must not only be willing and able to contract, but actually must contract themselves in due form of law, to make it a good civil marriage. Any contract made per verba de praesenti, or in words of the present tense, and in case of cohabitation per verba de futuro also, between persons able to contract, was before the late act deemed a valid marriage to many purposes; and the parties might be compelled in the spiritual courts to celebrate it in facie ecclesiae. But these verbal contracts are now of no force to compel a future marriage. Neither is any marriage at present valid, that is not celebrated in some parish church or public chapel, unless by dispensation from the Archbishop of Canterbury. It must also be preceded by publication of banns, or by license from

the spiritual judge. Many other formalities are likewise prescribed by the act; the neglect of which, though penal, does not invalidate the marriage. It is held to be also essential to a marriage, that it be performed by a person in orders; though the intervention of a priest to solemnize this contract is merely juris positivi, and not juris naturalis aut divini; it being said that Pope Innocent the Third was the first who ordained the celebration of marriage in the church; before which it was totally a civil contract. And in the times 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 stat. 12 Car. II. c. 33. But as the law now stands, we may upon the whole collect, that no marriage by the temporal law is ipso facto void, that is celebrated by a person in orders,-in a parish church or public chapel, or elsewhere, by special dispensation,-in pursuance of banns or license, -between single persons-consenting,-of sound mind,-and of the age of twenty-one years;-or of the age of fourteen in males and twelve in females, with consent of parents or guardians or without it in the case of widowhood. And no marriage is voidable by the ecclesiastical law, after the death of either of the parties; nor during their lives, unless for the canonical impediments of precontract, if that indeed still exists; of consanguinity; and of affinity, or corporal imbecility, subsisting previous to their marriage.

Divorce.

II. I am next to consider the manner in which marriage may be dissolved; and this is either by death, or divorce. There are two kinds of divorce, the one total, the other partial; the one a vinculo matrimonii, the other merely a mensa et thoro.

A Vinculo.

The total divorce, a vinculo matrimonii must be for some of the canonical causes of impediment before mentioned, and those existing before the marriage, as is always the case in consanguinity; not supervenient, or arising afterwards, as may be the case in affinity or corporal imbecility. For in cases of total divorce, the marriage is declared null, as having been absolutely unlawful ab initio; and the parties are therefore separated pro salute animarum; for which reason, as was before observed, no divorce can be obtained, but during the life of the parties. The issue of such marriage as is thus entirely dissolved, are bastards.

A Mensa et Thoro.

Divorce a mensa et thoro is when the marriage is just and lawful ab initio, and therefore the law is tender of dissolving it; but, for some supervenient cause, it becomes improper or impossible for

the parties to live together; as in the case of intolerable ill temper, or adultery, in either of the parties. With us in England adultery is only a cause of separation from bed and board; for which the best reason that can be given, is, that if divorces were allowed to depend upon a matter within the power of either of the parties, they would probably be extremely frequent; as was the case when divorces were allowed for canonical disabilities, on the mere confession of the parties, which is now prohibited by the canons. However, divorces a vinculo matrimonii for adultery, have of late years been frequently granted by act of parliament.

Alimony.

In case of divorce a mensa et thoro, the law allows alimony to the wife which is that allowance which is made to a woman for her support out of the husband's estate: being settled at the discretion of the ecclesiastical judge, on consideration of all the circumstances of the case. This is sometimes called her estovers, for which, if he refuses payment, there is, besides the ordinary process of excommunication, a writ at common law de estoveriis habendis, in order to recover it. It is generally proportioned to the rank and quality of the parties. But in case of elopement, and living with an adulterer, the law allows her no alimony.

Legal Consequences.

III. Having thus shown how marriages may be made, or dissolved, I come now, lastly, to speak of the legal consequences of such making, or dissolution.

By marriage the husband and wife are one person in law; that is the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs everything; and is therefore called in our law-french a feme-covert, foemina viro co-operta; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. I speak not at present of the rights of property, but of such as are merely personal. For this reason, a man cannot grant anything to his wife, or enter into covenant with her: for the grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himself; and therefore it is also generally true, that all compacts made between husband and wife, when single, are voided by the intermarriage. A woman indeed may be attorney for her husband; for that implies no separation from, but is rather a representation of, her lord. A husband may also bequeath anything to