England, are _menial servants_; so called from being _intra moenia_,
or domestics. The contract between them and their masters arises upon
the hiring. If the hiring be general without any particular time
limited, the law construes it to be a hiring for a year[e]; upon a
principle of natural equity, that the servant shall serve, and the
master maintain him, throughout all the revolutions of the respective
seasons; as well when there is work to be done, as when there is
not[f]: but the contract may be made for any larger or smaller term.
All single men between twelve years old and sixty, and married ones
under thirty years of age, and all single women between twelve and
forty, not having any visible livelihood, are compellable by two
justices to go out to service, for the promotion of honest industry:
and no master can put away his servant, or servant leave his master,
either before or at the end of his term, without a quarter's warning;
unless upon reasonable cause to be allowed by a justice of the
peace[g]: but they may part by consent, or make a special bargain.
[Footnote e: Co. Litt. 42.]
[Footnote f: F.N.B. 168.]
[Footnote g: Stat. 5 Eliz. c. 4.]
2. ANOTHER species of servants are called _apprentices_ (from
_apprendre_, to learn) and are usually bound for a term of years, by
deed indented or indentures, to serve their masters, and be maintained
and instructed by them: for which purpose our statute law[h] has made
minors capable of binding themselves. This is usually done to persons
of trade, in order to learn their art and mystery; and sometimes very
large sums are given with them, as a premium for such their
instruction: but it may be done to husbandmen, nay to gentlemen, and
others. And[i] children of poor persons may be apprenticed out by the
overseers, with consent of two justices, till twenty four years of
age, to such persons as are thought fitting; who are also compellable
to take them: and it is held, that gentlemen of fortune, and
clergymen, are equally liable with others to such compulsion[k].
Apprentices to trades may be discharged on reasonable cause, either at
request of themselves or masters, at the quarter sessions, or by one
justice, with appeal to the sessions[l]: who may, by the equity of the
statute, if they think it reasonable, direct restitution of a ratable
share of the money given with the apprentice[m]. And parish
apprentices may be discharged in the same manner, by two justices[n].
[Footnote h: Stat. 5 Eliz. c. 4.]
[Footnote i: Stat. 5 Eliz. c. 4. 43 Eliz. c. 2. 1 Jac. I. c. 25. 7
Jac. I. c. 3. 8 & 9 W. & M. c. 30. 2 & 3 Ann. c. 6. 4 Ann. c. 19. 17
Geo. II. c. 5.]
[Footnote k: Salk. 57. 491.]
[Footnote l: Stat. 5 Eliz. c. 4.]
[Footnote m: Salk. 67.]
[Footnote n: Stat. 20 Geo. II. c. 19.]
3. A THIRD species of servants are _labourers_, who are only hired by
the day or the week, and do not live _intra moenia_, as part of the
family; concerning whom the statute so often cited[o] has made many
very good regulations; 1. Directing that all persons who have no
visible effects may be compelled to work: 2. Defining how long they
must continue at work in summer and winter: 3. Punishing such as leave
or desert their work: 4. Empowering the justices at sessions, or the
sheriff of the county, to settle their wages: and 5. Inflicting
penalties on such as either give, or exact, more wages than are so
settled.
[Footnote o: Stat. 5 Eliz. c. 4.]
4. THERE is yet a fourth 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,
II. THE manner in which this relation, of service, affects either the
master or servant. And, first, by hiring and service for a year, or
apprenticeship under indentures, a person gains a settlement in that
parish wherein he last served forty days[p]. In the next place persons
serving as apprentices to any trade have an exclusive right to
exercise that trade in any part of England[q]. This law, with regard
to the exclusive part of it, has by turns been looked upon as a hard
law, or as a beneficial one, according to the prevailing humour of the
times: which has occasioned a great variety of resolutions in the
courts of law concerning it; and attempts have been frequently made
for it's repeal, though hitherto without success. At common law every
man might use what trade he pleased; but this statute restrains that
liberty to such as have served as apprentices: the adversaries to
which provision say, that all restrictions (which tend to introduce
monopolies) are pernicious to trade; the advocates for it alledge,
that unskilfulness in trades is equally detrimental to the public, as
monopolies. This reason indeed only extends to such trades, in the
exercise whereof skill is required: but another of their arguments
goes much farther; viz. that apprenticeships are useful to the
commonwealth, by employing of youth, and learning them to be early
industrious; but that no one would be induced to undergo a seven years
servitude, if others, though equally skilful, were allowed the same
advantages without having undergone the same discipline: and in this
there seems to be much reason. However, the resolutions of the courts
have in general rather confined than extended the restriction. No
trades are held to be within the statute, but such as were in being
at the making of it[r]: for trading in a country village,
apprenticeships are not requisite[s]: and following the trade seven
years is sufficient without any binding; for the statute only says,
the person must serve _as_ an apprentice, and does not require an
actual apprenticeship to have existed[t].
[Footnote p: See page 352.]
[Footnote q: Stat. 5 Eliz. c. 4.]
[Footnote r: Lord Raym. 514.]
[Footnote s: 1 Ventr. 51. 2 Keb. 583.]
[Footnote t: Lord Raym. 1179.]
A MASTER may by law correct his apprentice or servant for negligence
or other misbehaviour, so it be done with moderation[u]: though, if
the master's wife beats him, it is good cause of departure[w]. But if
any servant, workman, or labourer assaults his master or dame, he
shall suffer one year's imprisonment, and other open corporal
punishment, not extending to life or limb[x].
[Footnote u: 1 Hawk. P.C. 130. Lamb. Eiren. 127.]
[Footnote w: F.N.B. 168.]
[Footnote x: Stat. 5 Eliz. c. 4.]
BY service all servants and labourers, except apprentices, become
entitled to wages: according to their agreement, if menial servants;
or according to the appointment of the sheriff or sessions, if
labourers or servants in husbandry: for the statutes for regulation of
wages extend to such servants only[y]; it being impossible for any
magistrate to be a judge of the employment of menial servants, or of
course to assess their wages.
[Footnote y: 2 Jones. 47.]
III. LET us, lastly, see how strangers may be affected by this
relation of master and servant: or how a master may behave towards
others on behalf of his servant; and what a servant may do on behalf
of his master.
AND, first, the master may _maintain_, that is, abet and assist his
servant in any action at law against a stranger: whereas, in general,
it is an offence against public justice to encourage suits and
animosities, by helping to bear the expense of them, and is called in
law maintenance[z]. A master also may bring an action against any man
for beating or maiming his servant; but in such case he must assign,
as a special reason for so doing, his own damage by the loss of his
service; and this loss must be proved upon the trial[a]. A master
likewise may justify an assault in defence of his servant, and a
servant in defence of his master[b]: the master, because he has an
interest in his servant, not to be deprived of his service; the
servant, because it is part of his duty, for which he receives his
wages, to stand by and defend his master[c]. Also if any person do
hire or retain my servant, being in my service, for which the servant
departeth from me and goeth to serve the other, I may have an action
for damages against both the new master and the servant, or either of
them: but if the new master did not know that he is my servant, no
action lies; unless he afterwards refuse to restore him upon
information and demand[d]. The reason and foundation upon which all
this doctrine is built, seem to be the property that every man has in
the service of his domestics; acquired by the contract of hiring, and
purchased by giving them wages.
[Footnote z: 2 Roll. Abr. 115.]
[Footnote a: 9 Rep. 113.]
[Footnote b: 2 Roll. Abr. 546.]
[Footnote c: In like manner, by the laws of king Alfred, c. 38. a
servant was allowed to fight for his master, a parent for his child,
and a husband or father for the chastity of his wife or daughter.]
[Footnote d: F.N.B. 167, 168.]
AS for those things which a servant may do on behalf of his master,
they seem all to proceed upon this principle, that 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_[e]. Therefore, if the servant commit a trespass by the command or
encouragement of his master, the master shall be guilty of it: not
that the servant is 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[f]: for as there is a
confidence reposed in him, that he will take care to provide honest
servants, his negligence is a kind of implied consent to the robbery;
_nam, qui non prohibet, cum prohibere possit, jubet_. So likewise if
the drawer at a tavern sells a man bad wine, whereby his health is
injured, he may bring an action against the master[g]: for, although
the master did not expressly order the servant to sell it to that
person in particular, yet his permitting him to draw and sell it at
all is impliedly a general command.
[Footnote e: 4 Inst. 109.]
[Footnote f: Noy's Max. c. 43.]
[Footnote g: 1 Roll. Abr. 95.]
IN the same manner, 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 imbezzles it, I must
pay it over again. If a steward lets a lease of a farm, without the
owner's knowlege, the owner must stand to the bargain; for this is the
steward's business. A wife, a friend, a relation, that use to transact
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; and, without such a doctrine as this, no
mutual intercourse between man and man could subsist with any
tolerable convenience. If I usually deal with a tradesman by myself,
or constantly pay him ready money, I am not answerable for what my
servant takes up 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[h].
[Footnote h: Dr & Stud. d. 2. c. 42. Noy's max. c. 44.]
IF a servant, lastly, 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 shoing 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. Upon this principle,
by the common law[i], if a servant kept his master's fire negligently,
so that his neighbour's house was burned down thereby, an action lay
against the master; because this negligence happened in his service:
otherwise, if the servant, going along the street with a torch, by
negligence sets fire to a house; for there he is not in his master's
immediate service, and must himself answer the damage personally. But
now the common law is, in the former case, altered by statute 6 Ann.
c. 3. which ordains that no action shall be maintained against any, in
whose house or chamber any fire shall accidentally begin; for their
own loss is sufficient punishment for their own or their servants'
carelessness. But if such fire happens through negligence of any
servant (whose loss is commonly very little) such servant shall
forfeit 100_l_, to be distributed among the sufferers; and, in default
of payment, shall be committed to some workhouse and there kept to
hard labour for eighteen months[k]. A master is, lastly, chargeable if
any of his family layeth or casteth any thing out of his house into
the street or common highway, to the damage of any individual, or the
common nusance of his majesty's liege people[l]: for the master hath
the superintendance and charge of all his houshold. And this also
agrees with the civil law[m]; which holds, that the _pater familias_,
in this and similar cases, "_ob alterius culpam tenetur, sive servi,
sive liberi_."
[Footnote i: Noy's max. c. 44.]
[Footnote k: Upon a similar principle, by the law of the twelve tables
at Rome, a person by whose negligence any fire began was bound to pay
double to the sufferers; or if he was not able to pay, was to suffer a
corporal punishment.]
[Footnote l: Noy's max. c. 44.]
[Footnote m: _Ff._ 9. 3. 1. _Inst._ 4. 5. 1.]
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 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.
CHAPTER THE FIFTEENTH.
OF HUSBAND AND WIFE.
THE second private relation of persons is that of marriage, which
includes the reciprocal 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 enquire, 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.
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 marriages 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 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.
[Footnote a: Salk. 121.]
FIRST, they must be _willing_ to contract. "_Consensus, non
concubitus, facit nuptias_," is the maxim of the civil law in this
case[b]: and it is adopted by the common lawyers[c], who indeed have
borrowed (especially in antient times) almost all their notions of the
legitimacy of marriage from the canon and civil laws.
[Footnote b: _Ff._ 50. 17. 30.]
[Footnote c: Co. Litt. 33.]
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
here be our business to enquire.
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 court 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 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. it is declared, that all
persons 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 consummate with bodily knowlege, 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 except) 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
knowlege: 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.
(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.
[Footnote d: _Ibid._]
[Footnote e: Salk. 548.]
[Footnote f: Gilb. Rep. 158.]
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 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
incapacities come together, it is a meretricious, and not a
matrimonial, union.
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[g]: polygamy being condemned both by the
law of the new testament, and the policy of all prudent states,
especially in these northern climates. And Justinian, even in the
climate of modern Turkey, is express[h], that "_duas uxores eodem
tempore habere non licet_."
[Footnote g: Bro. Abr. _tit. Bastardy._ pl. 8.]
[Footnote h: _Inst._ 1. 10. 6.]
2. THE next legal disability is want of age. This is sufficient to
avoid all other contracts, on account of the imbecillity 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[l]. 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].
[Footnote i: _Leon. Constit._ 109.]
[Footnote k: _Decretal._ _l._ 4. _tit._ 2. _qu._ 3.]
[Footnote l: Co. Litt. 79.]
[Footnote m: _Ibid._]