Изображения страниц
PDF
EPUB
[ocr errors]

if a grand-father is willing to give his grandfon in adoption, the confent of the fon is not neceffary.' (f)

Tit. xii. fect. 5. De captivitate et poftliminio.

If a parent is taken prifoner by the enemy, altho' he thus becomes a flave, yet he lofes not his paternal power, which remains in fufpenfe by reafon of a privilege granted to all prifoners; namely, the right of return. For captives, when they obtain their liberty, are repoffeffed of all their former rights, in which paternal power, of courfe, muft be included: and at their return they are fuppofed, by a fiction of law, never to have been abfent. If a prifoner 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. Alfo if a fon, or grandfon, becomes a prifoner, the power of the parent is faid, for the reafon before affigned, to be only in fufpenfe. The term poftliminium is derived from poft and limen. We therefore aptly use the expression, reverfus poftliminio, when a perfon, who was a captive, returns within our own confines.' (g)

[ocr errors]

.

[ocr errors]

From

intra pubertatem pupillus decefferit, reftituturum fe bona illis, qui, fi adoptio facta non effet, ad fucceffionem ejus venturi effent. Item non aliter emancipare eum poteit arrogator, nifi, caufa cognita, dignus emancipatione fuerit; et tunc fua bona ei reddit. Sed, et fi decedens pater eum exhæredaverit, vel vivus fine jufta caufa emancipaverit, jubetur quartam partem ei bonorum fuorum relinquere ; videlicet, præter bona, quæ ad patrem adoptivum tranftulit, et quorum commodum ei poftea acquifivit.

**

*Bonorum] With us the word goods, does not comprehend thofe 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 eftate, of whatsoever it confifts.

(f) Sed fi quis nepotis loco adoptet, vel quafi ex filio, quem habet jam adoptatum, vel quafi ex illo, quem naturalem in fuo potef tate habet, eo cafu et filius confentire debet, ne ei invito fuus hæres agnafcatur. Sed, ex contra io, fi avas ex filio nepotem det in adoptionem, non eft neceffe, filium confentire.

(g) Si ab hoflibus captus fuerit parens, quamvis fervus hoftium fiat, tamen pendet jus liberorum, propter jus poftliminii: quia hi qui ab hoftibus capti funt, fi reverfi fuerint, omnia priftina jura recipiunt: idcirco reverfus etiam liberos habebit in poteftate: quia poftliminium fingit eum, qui captus eft, in civitate femper fuiffe. Si vero ibi decefferit, exinde, ex quo captus eft pater, filius fui juris fuiffe videtur. Ipfe quoque filius, nepofve, 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 acceffion: and he who was the owner of the purple, may ⚫ have an action of theft, and a personal action, called a condiction, against the purloiner; nor is it of any confequence, 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 recovered 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)

[ocr errors]
[ocr errors]

From the FOURTH BOOK.

Tit. v. Introduction.

• If a judge makes a fuit 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 defign, but through imprudence, and want of fkill, he may be fued by an action of quafi-male-feazance, and must suffer fuch a penalty, which feems equitable to the confcience of a fuperior judge.' (i),

tis parentis in fufpenfo effe. Dictum autem eft, poftliminium a limine et poft. Unde eum, qui ab hoftibus captus eft, et in fines noftros poftea pervenit, poftliminio reverfum recte dicimus. Nam limina ficut in domo finem quendam faciunt, fic et imperii finem effe limen veteres voluerunt. Hinc et limen dictum eft, quafi finis quidam et terminus. Ab eo poftliminium dictum eft, quia et idem limen revertebatur, quod amiferat. Sed et, qui captus victis hoftibus recuperatur, poftliminio rediiffe exiftimatur.

(b) Si tamen alienam purpuram veftimento fuo quis intexuerit, licet pretiofior fit purpura, tamen acceffionis vice cedit veftimento: et qui dominus fuit purpuræ, adverfus eum, qui furripuit, habet furti actionem et condictionem, five ipfe fit, qui veftimentum fecit, five alius. Nam extinctæ res licet vindicari non poffint, condici tamen a furibus et quibufque 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 peccaffe aliquid intelligitur, licet per imprudentiam, ideo videtur quafi ex maleficio teneri, et in quantum de ea re æquum religioni judicantis videbitur, poenam fuftinebit.

B 4

The

[ocr errors]

The foregoing quotations from the Inftitutions will, in some measure, make it appear, that it requires no little knowlege, dexterity, and judgment, to preferve, in another language, upon a fubject where fo many idiomatic phrases and technical expreffions muft naturally abound, that eafe, dignity, perfpicuity, and precision, so characteristical of the works of that wife, humane, and learned legiflator, Juftinian; yet the English verfion accompanying thefe quotations, fhew how far the graces of an original may be transfufed into a copy. We shall only add, that if, in thefe citations from Justinian, any paffages appear difficult, there are hundreds of the fame turn throughout the work, which Mr. Harris hath every where elucidated with equal propriety and elearnefs; and where notes and authorities are requifite for the explanation of terms, he introduces them, but in a concise manner, just to answer the purpose, and without the vain frippery of fuperfluous learning.

We now proceed to give our readers a tranfient view of Mr. Harris in his capacity of commentator; and fhall here obferve the fame method as we did above, taking our extracts from Mr. Harris's notes, according to the order in which they present themselves in the feveral 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 fuch exhibited by our editor.

Amongst many other inftructive and judicious remarks, the following make their appearance in the FIRST Book.

Tit. 3. Introduction. The first general divifion of perfons, in refpect to their rights, is into FREEMEN and SLAVES.

[ocr errors][ocr errors]

6

Mr. Harris's Note upon this is, Tenure in villenage, was formerly a common tenure in England, and thofe who held by it were called villeins, from the word villa, a farm. They were obliged to perform the moft fervile offices, and their condition did not differ from that of flaves; for both they and their children were the abfolute property of their Lords, who might leafe them out to others for years, or for life, or make an abfolute fale of them.

• Of villeins there were two forts, viz. villeins regardant to a manor, and villeins in grofs.

Villeins regardant, or glebæ adfcriptitii, were bound to their Lord as Members, belonging and annexed to the manor, of which their Lord was the owner. Villeins in grofs fuch who were not appendent to any manor, or lands,

were

• but

but belonged folely 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 confeffion.

Tenures in villenage were wholly taken away by a ftatute ⚫ in the twelfth year of Charles the Second, by which all tenures were turned into free and common focage: but it is obfervable, that long before this act, in which no notice is taken of villeins in grofs, there were very few villeins in England; for the laft 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.

[ocr errors]

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 grofs in his time, and that villeins appendent to manors were but very few in number: that, fince England has re❝ceived the Chriftian religion, men began to be affected in "their confciences at holding their brethren in fervitude; and "that upon this fcruple, in process of time, the holy fathers, "monks, and friars, fo burdened the minds of those whom "they confeffed, that temporal men were glad to manumit all "their villeins.”””

But he adds, "that the holy fathers themselves did not ma"numit their own flaves, and that the Bishops behaved like "the other ecclefiaftics; but at last some Bishops infran"chifed their villeins for money, and others on account of "popular outcry; and that at length, the monafteries 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 prefumption of neceffity, the English permit flavery in the • Plantations; and this may lead the reader to enquire, whether a negro, brought into England, where flaves are cer⚫tainly not neceffary, fhall ftill continue to be a flave, and be • recoverable at law, if he quits the fervice of his master? As to this queftion, it seems to be a fettled point, that an • action of trover will not lie for a negro, because the owner ' has not an absolute property in his negro, fo as to kill him 6 as he could an ox. SALK. 666. SMITH. V. GOULD. Lord Raymond, 1274. And there has been some doubt, as to · an action of trefpafs, but the more prevalent and better opinion is, that a fpecial action of trefpafs, per quod fervitium amifit, will lie in favour of a mafter; fo that if property in

[ocr errors]

a ne

[ocr errors]

a negro can be fully proved, he will not be able to maintain his liberty by baptifm, or refidence 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 fons of a family, must first obtain the confent of the parents under whofe power they are.

[ocr errors]

Part of Mr. Harris's note on this. Puberty is efteemed 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, perfons may legally enter into matrimony • before puberty: and a female, when fhe 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 difagree they cannot, "before the faid ages, and then they may difagree, and marie "againe to others, without any divorce: and, if they once af"ter give confent, they can never difagree after. If a man "of the age of fourteen marie a woman of the age of ten, at "her age of twelve he may as well d fagree as the may, tho' "he were of the age of confent; because in contracts of ma"trimony, either both must be bound, or equal election of "difagreement given to both; and fo, e converfo, if the wo"man be of the age of confent, 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.

[ocr errors][ocr errors][ocr errors]

The law of England requires the confent 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 confequence of the marriage of a minor, without the confent of his parents or guardians, was chiefly, levelled at the minifter, 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

• fuch

« ПредыдущаяПродолжить »