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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. fect. 5. De captivitate et poftliminio. • If a parent is taken prisoner by the enemy, altho' he thus • becomes a Nave, yet he loses 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 repofTeffed 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 abient. If a prisoner dies in captivity,
his fon 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 grandfon, becomes a prisoner, " the power of the parent is faid, for the reason before afligned, ' to be only in fufpenfe
. The term poftliminium is derived from poft and limen.
We therefore aptly use the expression, reversus poftliminio, when a person, who was a captive, returns within our own confines.' (8)
intra pubertatem pupillus decefferit, reftituturum fe bona illis, qui, si adoptio fa&ta non effet, ad succeflionem ejus venturi eflent. Item non aliter emancipare eum poteit arr gator, nifi, caufa cognita, dignus emancipatione fuerit; et tunc fua bona ei reddit. Sed, et fi decedens pater eum exhæredaverit, vel vivus fine justa causa emancipaverit, jubetur quartam partem ei bonorum * fuorum 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 consists.
(f) Sed fi quis nepotis loco adoptet, vel quafi ex filio, quem habet jam adoptatum, vel quafi ex illo, quem naturalem in fuo potestate habet, eo casu et filius consentire debet, ne ei invito fuus hæres agnascatur. Sed, ex contra io, fi avas ex filio nepotem det in adoptionem, non eft neceffe, filium confeniire.
(g) Si ab hoflibus captus fuerit parens, quamvis servus hosium fiat, tamen pendet jus liberorum, propter jus poftliminii: quia hi qui ab hoftibus capti funt, fi reverfi fuerint, omnia pristina jura recipiunt: idcirco reversus etiam liberos habebit in potefiare : quia poftliminium fingit eum, qui captus eft, in civitate femper fuiffe. Si vero ibi deceflerit, exinde, ex quo captus eit pater, flius fui juris fuiffe videtur. Ipfe quoque filius, neposve, fi ab hoftibus captus fuerit, fimiliter dicimus, propter jus poitliminii, jus quoque potefta
From the SECOND BOOK.
Tit. i. fect. 26. De accessione. 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
acceflion: and he who was the owner of the purple, 'may • have an action of theft, and a personal action, called a conis diction, against the purloiner ; nor is it of any consequence, - 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 re5 covered identically, yet a condiction may be brought for the
recovery of the value of them, either against the thief, or against any other poffeffor.' (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 fault, 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 fufpenfo effe. Diétum autem est, poftliminium a limine et poft. Unde eum, qui ab hoftibus captus eft, et in fines noftros postea pervenit, poftliminio reversum rečte dicimus. Nam limina ficut in domo finem quendam faciunt, fic et imperii finem effe limen veteres voluerunt. Hinc et limen dictum est, quafi finis quidam et terminus. Ab eo poftliminium dictum eft, quia et idem limen revertebatur; quod amiserat. Sed et, qui captus vidis hoftibus
recuperatur, poftliminio rediisse existimatur.
() Si tamen alienam purpuram vestimento suo quis intexuerit, licet pretiofior fit purpura, tamen acceflionis vice cedit vestimento : et qui dominus fuit purpuræ, adverfus eum, qui surripuit, habet furti actionem et condictionem, five ipse fit, qui veftimentum 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 : fed quia neque ex maleficio neque ex contractu obligatus eft, et utique peccasse aliquid intelligitur, licet per imprudentiam, ideo videtur quasi 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 rain 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 trifling, for there are none such exhibited by our editor.
Amongst many other ivstructive and judicious remarks, the following make their appearance in the First Book. Tit. 3. Introduction. The fir t 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 i condition did not differ from that of flaves; for both they " and their children were the absolute 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 surts, viz. villeins regardant to a manor, and villeins in grofs.
• Villeins regardant, or glebæ adscriptitii, were bound to • their Lord as Members, belonging and annexed to the manor,
of which their Lord was the owner. Villeins in grofs were such who were not appendent to any manor, or lands,
• but belonged solely to the person of their Lord, and his * heirs. And note, a villein might become a villein in gross 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 focage: but it is
observable, that long before this act, in which no notice is 6. taken of villeins in gross, there were very few villeins in * England; for the last case 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 Edward 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 Chriftian religion, men began to be affected in « their consciences at holding their brethren in servitude; and “ that upon this fcruple, 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 “ their villeins."
But he adds, “ that the holy fathers themselves did not mau numit their own slaves, and that the Bishops behaved like " the other ecclefiaftics; but at last fome 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 occasion, that almost all the vil“ leins in the kingdom are now manumitted.” SMITH's Repub. cap. 1o.
< But it must not here be omitted, that even now, upon a • presumption of necessity, the English permit Navery in the • Plantations ; and this may lead the reader to enquire, whe
ther a negro, brought into England, where naves are cer
tainly not necessary, shall still continue to be a slave, 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
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 servitium • 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 baptilin, or residence in England.' Tit. 10. Introduction. The citizens of Rome contract 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 are the sons of a family, must first obtain the consent of the parents under whoje 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
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 « 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
of “ her age of twelve he may as well d sagree as she may, tho’ « he were of the age of consent; because in contracts of ma6 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 are 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 fur
pended 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