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• if a grand-father is willing to give his grandson in adoption, " the consent of the son is not necessary.' (f)
Tit. xii. sect. 5. De captivitate et poftliminio. • If a parent is taken prisoner by the enemy, altho' he thus « becomes a Nave, yet he lofes not his paternal power, which “ remains in suspense by reason of a privilege granted to all • prisoners; namely, the right of return. For captives, when
they obtain their liberty, are repofseffed of all their former ' rights, in which paternal power, of course, must be included:
and at their return they are supposed, by a fiction of law, • never to have been ablent. If a prisoner dies in captivity, « his son is deemed to have become independent, not from the
time of the death of his father, but from the commencement of his captivity. Also if a fon, or grandson, becomes a prisoner, the power of the parent is said, for the reason before afligned, to be only in suspense. The term poftliminium is derived from poft and limen. We therefore aptly use the expression, reversus poftliminis, when a person, who was a captive, returns I within our own confines.' ($)
intra pubertatem pupillus decefferit, reftituturum fe bona illis, qui, si adoptio facta non effet, ad succeflionem ejus venturi eflent. Item non aliter emancipare eum poteit arr:gator, nisi, caufa cognita, dignus emancipatione fuerit ; et tunc sua bona ei reddit. Sed, et si decedens pater eum exhæredaverit, vel vivus fine justa causa emancipaverit, jubetur quartam partem ei bonoruin * suorum relinquere; videlicet, præter bona, quæ ad patrem adoptivum tranftulit, et quorum commodum ei poftea acquisivit.
* Bonorum] With us the word goods, does not comprehend those things which are in the nature of freehold, or parcel of it; but denotes only chattels. But in the civil law, the word bona has a greater latitude, and generally comprehends a man's whole estate, of whatsoever it confifts.
(f) Sed fi quis nepotis loco adoptet, vel quafi ex filio, quem habet jam adoptatum, vel quasi ex illo, quem naturalen in fuo potertate habet, eo cafu et filius confentire debet, ne ei invito fuus hæres agnascatur. Sed, ex contra io, fi avas ex filio nepotem de: in adoptionem, non eft neceffe, filium consentire.
(8) Si ab hoflibus captus fuerit parens, quamvis servus holium fiat, tamen pendet jus liberorum, propter jus poftliminii: quia hi qui ab hoftibus capti sunt, fi reverfi fuerint, omnia pristina jura re. cipiunt: idcirco reversus etiam liberos habebit in poteftate : quia poftliminium fingit eum, qui captus eft, in civitate femper fuisse. Si vero ibi decesserit, exinde, ex quo captus eft pater, fuius sui juris fuiffe videtur. Ipse quoque filius, neposve, fi ab hoftibus captus fuerit, fimiliter dicimus, propter jus poftliminii, jus quoque potefta. From the SECOND BOOK.
Tit. i. fect. 26. De acceffione. If any man shall have interwoven the purple of another into his own vestment, then the purple, altho' it may be 'more valuable, doth yield and appertain to the vestment by caccefsion: and he who was the owner of the purple, may
have an action of theft, and a personal action, called a consdiction, against the purloiner; nor is it of any consequence, 6 whether the vestment was made by him who committed the
theft, or by another; for altho' things which become, as . it were, extinct by the change of their form, cannot be re' covered identically, yet a condiction may be brought for the 's recovery of the value of them, either against the thief, or
against any other posseffor.' (b)
From the FOURTH BOOK:
Tit. v. Introduction. If a judge makes a suit his own, by giving an unjust determination, an action of male-feazance will not properly
lie against him: but altho’ he is not subject to an action of • male-feazance, or “of contract, yet, as he hath certainly
committed a faultz, altho' it was not by design, but through imprudence, and want of skill, he may be sued by an action of quasi-male-feazance, and must suffer such a penalty, which seems equitable to the conscience of a superior judge.' (i)
tis parentis in suspenso esse. Dictum autem est, poftliminium a limine et poft. Unde eum, qui ab hoftibus captus eft, et in fines nostros postea pervenit, poftliminio reversum rečte dicimus. Nam limina ficut in domo finem quendam faciunt, fic et imperii finem esse limen veteres voluerunt. Hinc et limen dictum est, quafi finis quidam et terminus. Ab eo poftliminium di&tum eft, quia et idem limen revertebatur; quod amiserat. Sed et, qui captus victis hoftibus recuperatur, poftliminio rediisse existimatur,
(5) Si tamen alienam purpuram vestimento suo quis intexuerit, li. cet pretiosior fit purpura, tamen acceflionis vice cedit vestimento : et qui dominus fuit purpuræ, adversus eum, qui surripuit, habet furti a&tionem et condictionem, five ipfe fit, qui veltimentum fecit, five alius. Nam extinctæ res licet vindicari non poflint, condici tamen a furibus et quibusque aliis poffefforibus poffunt.
(i) Si judex litem fuam fecerit, non proprie ex maleficio obligatus videtur: sed quia neque ex maleficio neque ex contractu obligatus eft, et utique peccasse aliquid intelligitur, licet per imprudentiam, ideo videtur quafi ex maleficio teneri, et in quantum de ea re æquum religioni judicantis videbitur, pænam fuftinebit. B 4
The foregoing quotations from the Institutions will, in some measure, make it appear, that it requires no little knowlege, dexterity, and judgment, to preserve, in another language, upon a subject where so many idiomatic phrases and technical expressions must naturally abound, that ease, dignity, perspicuity, and precision, so characteristical of the works of that wise, humane, and learned legislator, Justinian ; yet the English version accompanying these quotations, shew how far the graces of an original may be transfused into a copy. We shall only add, that if, in these citations from Justinian, any paflages appear difficult, there are hundreds of the same turn throughout the work, which Mr. Harris hath every where elucidated with equal propriety and elearness; and where notes and authorities are requisite for the explanation of terms, he introduces them, but in a concise manner, just to answer the purpose, and without the vain frippery of superfluous learning.
We now proceed to give our readers a transient view of Mr. Harris in his capacity of commentator; and shall here observe the same method as we did above, taking our extracts from Mr. Harris's no:es, according to the order in which they present themselves in the several books: and tho' we are obliged, by the nature of our plan, 'entirely to omit many; yet we omit none because it is triling, for there are none such exhibited by our editor.
Amongst many other iv structive and judicious remarks, the following make their appearance in the First Book. Tit. 3. Introduction. The firft general division of persons, in
respect to their rights, is into FREENEN and SLAVES. Mr. Harris's Note upon this is, Tenure in villenage, was • formerly a common tenure in England, and those who held " by it were called villeins, from the word villa, a farm. They
were obliged to perform the most servile offices, and their • condition did not differ from that of llaves; for both they " and their children were the ablolute property of their Lords,
who might lease them out to others for years, or for life, or make an absolute sale of them,
• Of villeins there were two forts, viz. villeins regardant to ' a manor, and villeins in gross.
• Villeins regardant, or glebæ adscriptitii, were bound to o their Lord as Members, belonging and annexed to the manor, of which their Lord was the owner. Villeins in gross
such who were not appendent to any manor, or lands, .but belonged solely to the perfon of their Lord, and his
heirs. And note, a villein might become a villein in grofs by prescription, by being granted away, or by confession.
Tenures in villenage were wholly taken away by a statute • in the twelfth year of Charles the Second, by which all te
nures were turned into free and common socage : but it is
observable, that long before this act, in which no notice is "taken of villeins in gross, there were very few villeins in • England; for the last cafe concerning villenage to be found • in any of the law-books, is that of Crouche, in the tenth
year of Queen Elizabeth. Dyer, 226. b. pl. 11. "And it is remarkable, that Sir Thomas Smith, who was
one of the principal Secretaries of State, first to King Ed(ward the Sixth, and afterwards to Queen Elizabeth, writes thus in his republic. " That he never knew of any
villeins “ in gross in his time, and that villeins appendent to manors “ were but very few in number: that, since England has re“ ceived the Christian religion, men began to be affected in “ their consciences at holding their brethren in servitude; and “ that upon this scruple, in process of time, the holy fathers, “ monks, and friars, so burdened the minds of those whom
they confessed, that temporal men were glad to manumit all 66 their villeins."
But he adds, “ that the holy fathers themselves did not ma« numit their own slaves, and that the Bishops behaved like “ the other ecclefiaftics; but at last some Bishops infran“ chised their villeins for money, and others on account of “ popular outcry; and that at length, the monasteries falling “ into lay hands, were the occafion, that almost all the vil“ leins in the kingdom are now manumitted.” SMITH's Repub. cap. 10.
But it must not here be omitted, that even now, upon a • presumption of neceffity, the English permit slavery in the • Plantations; and this may lead the reader to enquire, whe
ther a negro, brought into England, where faves are cer• tainly not necessary, thall still continue to be a Nave, and be ' recoverable at law, if he: quits the service of his master? " As to this question, it seems to be a settled point, that an " action of trover will not lie for a negro, because the owner • has not an absolute property in his negro, so as to kill him
as he could an ox, Salk: 666. SMITH. V. GOULD. Lord • RAYMOND, 1274. And there has been some doubt, as to
an action of trespass, but the more prevalent and better opi<nion is, that a special action of trespass, per quod fervitium
amifit, will lie in favour of a master; so that if property in
a negro can be fully proved, he will not be able to maintain • his liberty by baptism, or residence in England.' Tit. 10. Introduction. The citizens of Rome contralt valid
matrimony, when they follow the precepts of the law; the males when they arrive at puberty, and the females when they attain to a marriageable age. The males, if they
The males, if they are the sons of a family, must first obtain the consent of the parents under whose power they are.
Part of Mr. Harris's note on this. "Puberty is esteemed by « the law of England, as well as by the civil law, to commence ' in males at fourteen complete, and in females at twelve.. • But in England, persons may legally enter into matrimony
before puberty: and a female, when she has completed her 6 ninth year, is entitled to dower, altho' her husband at his
death was but seven, or even four years of age. Co.Litt. p. 31 a. 33 a. 40 a. But when there is a marriage before
puberty, the woman may diffent from it, " at twelve, or 6 after, and the man at fourteen, or after; and there needs no “ new marriage, if they fo agree: but disagree they cannot, “ before the said ages, and then they may disagree, and marie “ againe to others, without any divorce: and, if they once af“ ter give consent, they can never disagree after. If a man 66 of the age of fourteen marie a woman of the age
ten, at “ her age of twelve he may as well d fagree as the may, tho' “ he were of the age of consent; because in contracts of maes trimony, either both must be bound, or equal election of “ disagreement given to both; and fo, e converso,, if the wo
man be of the age of content, and the man under.” Co. LITT. p.78 b. 79 a.
< But in contracts de futuro, the law is totally different.
For a contract de futuro is of no force, if both the parties • are under the age of twenty-one; but, if one of the parties • is twenty-one complete, the contract will be binding to that party. Holt. v. WARD. Trin. 5. G. 2.
The law of England requires the consent of parents, or guardians, to the marriage fo their children, or wards, who under the
age of twenty-one years. See the Canons of 1603. Can. 62, 63, 100, 101, &c.
But the Penalty in consequence of the marriage of a minor, without the consent of his parents or guardians, was chiefly, levelled at the minister, who was liable to be fufpended for three years ; for altho' the consent of parents or guardians was required, previous to the marriage of minors, yet if the marriage had been celebrated by a priest, without