wrong of the mafter himself; and it is a ftanding maxim, that no man fhall be allowed to make any advantage of his own wrong (13).

(13) The law which obliges masters to answer for the negli gence and mifconduct of their fervants, though oftentimes fevere upon an innocent perfon, is founded upon principles of public policy, in order to induce masters to be careful in the choice of their fervants, upon whom both their own security and that of others fo greatly depends. And to prevent masters from being impofed upon in the characters of their fervants, it is enacted by 32 Geo. III. c. 56. that if any person shall give a false character of a fervant, or a false account of his former service; or if any fervant fhall give fuch falfe account, or fhall bring a falfe character, or fhall alter a certificate of a character, he fhall, upon conviction before a juftice of the peace, forfeit 20%. with 10s. cofts. The informer is a competent witnefs. But if any fervant will inform against an accomplice, he shall be acquitted.

An action was tried at the fittings after Trinity term 1792, at Guildhall, against a person who had knowingly given a false character of a man to the plaintiff, who was thereby induced to take him into his fervice. But this fervant foon afterwards robbed his master of property to a great amount, for which he was executed. And the plaintiff recovered damages against the defendant to the extent of his lofs. This was an action of great importance to the public, and there can be no doubt but it was founded in ftrict principles of law and juftice,

CHAPTER THE FIFTEENTH.

OF HUSBAND AND

WIFE.

TH

HE fecond private relation of perfons 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 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 ecclefiaftical 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.

a Salk. 121.

FIRST, they must be willing to contract. "Confenfus non "concubitus, facit 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 some particular disabilities, and incapaci→ ties. 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 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 express 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 ec clefiaftical magiftrate's coercion; in order to feparate the offenders, and inflict penance for the offence, pro falute animaBut 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 courts 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.

d Ibid.

9

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 incest. 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 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 perfons may lawfully marry, but fuch as are prohibited by God's law (1); 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 (2); the fartheft of which is that between uncle and niece f. By Gilb. Rep. 158.

Salk. 548.

(1) In this ftatute the prohibitions by God's law are not specified; but in the 25 Hen. VIII. c. 22. and 28 Hen. VIII. c. 7. the prohibited degrees are particularized. It is doubtful whether these two laft ftatutes are in force. 2 Burn. Ec. 405. But fo far they feem only to be declaratory of the Levitical law. The former declared null and void the marriage between Hen. VIII, and Catharine of Arragon, the widow of his eldest brother prince Arthur; for which a difpenfation had been obtained from the pope.

The queftion refpecting the validity of this difpenfation produced that quarrel between the king and the pope, which ended in the abolition of the dominion of the latter in this country: and the inconftancy of that capricious king's affections accelerated the reformation of our religion.

(2) The prohibited degrees are all which are under the 4th degree of the civil law, except in the afcending and defcending line, and by the course of nature it is fcarcely a poffible cafe that any one fhould ever marry his iffue in the 4th degree; but between col

laterals

BOOK I. the fame ftatute all impediments arifing from pre-contracts to other persons, 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 statute was repealed by ftatute 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 precontract, I leave to be confidered by the canonifts (3).

laterals it is univerfally true, that all who are in the 4th or any higher degree are permitted to marry; as firft-coufins are in the 4th degree, and therefore may marry, and nephew and great aunt, or niece and great uncle, are alfo in the 4th degree, and may intermarry and though a man may not marry his grand-mother, it is certainly true that he may marry her fifter. Gibs. Cod. 413. See the computation of degrees by the civil law, 2 vol. p. 207. The fame degrees by affinity are prohibited. Affinity always arifes by the marriage of one of the parties fo related; as a hufband is related by affinity to all the confaguinei of his wife; and vice verfa the wife to the husband's confanguinei: for the husband and wife being confidered one flesh, those who are related to the one by blood, are related to the other by affinity. Gibf. Cod. 412. Therefore a man after his wife's death cannot marry her fifter, aunt, or niece. But the confanguinei of the husband are not at all clated to the confanguinei of the wife. Hence two brothers may marry two fifters, or father and fon a mother and daughter: or if a brother and fifter marry two perfons not related, and the brother and fifter die, the widow and widower may intermarry; for though I am related to my wife's brother by affinity, I am not fo to my wife's brother's wife, whom, if circumftances would admit, it would not be unlawful for me to marry.

(3) A contract per verba de præfenti tempore used to be confidered in the ecclefiaftical courts ipfum matrimonium, and if either party had afterwards married, this, as a fecond marriage, would have been annulled in the fpiritual courts, and the first contract enforced. See an instance of it 4 Co. 29. But as this pre-engage

ment