[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.
[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[]: 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.
[] Ff. 50. 17. 30.