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$ 1. De administralione rei fiscalis. In semestribvs. The semestre concilium was a privy counsel, composed of a certain number of senators chosen by lot, and changed every six montha. This council was first appointed by Augustus Caesar, that he might diminish the power of the senate and increase his own. Suet, in Aug. ch. 35. Dion. L. 53. Dig. 27. 1. 41. Cod. 5. 62. 10. 25.
$ 4. De lite cum pupillo, &c. p. 58. This law is now useless, for by the 72nd Novel, Justinian prohibited the debtors and creditors of minors from being tutors or curators. (Harris.)
$ 5. De tribus tutelce et curce oneribus. See Dig. 27. 1. 31.
$ 6. De pauperlate. Divi fratres. The emperors were stiled divi, or divine, because they were considered in every respect as gods, after the ceremony of their apotheosis had been performed. Herod. Lib. 3. The divi fratres here spoken of, are conjectured by Vinnius to *have been Marcus Aurelius, and JElius Verus, the sons [ *454 ] of Antonius Pius.
$11. De Inirniciliis, &c. p. 60. By a capital enmity, is understood such as might arise from a- public accusation, affecting the life, liberty, and good name of the party accused. Dig. 50. 16. 103. But even such an accusation would not excuse a testamentary tutor, inasmuch as the appointment would imply the testator's forgiveness, unless it appeared that he acted upon another motive, and intended only to lay a burden upon the person, whom he had nominated. Heinecc. Vinn.
$ 14. De Militia. But if he had voluntarily acted, he would be subject to the action negoliorum gestorum. Cod. 5. 33. 4. Cod. 6. 36. 8.
$ 16. De tempore el modd proponendi, &c. p. 61. Non appellant. That is, they should not appeal from the appointment, but from the decision by which their excuses were rejected. Dig. 49. 4. 1. »
Tit. 26. Unde suspecti: p. 62. Crimen here means an accusation. So it is rendered by Theophilus negi zijo xareyoqiao. So Cicero pro Roscio; "Roscius appears to' me to have three obstacles to contend with, Crimen adversariorum, el audacia, et Potentia. " (Harris.)
$ 2. Qui suspecti fieri possunt, p. 63. Et possunl qvidem omnes. Guardians at common law may be removed or compelled to give security, if there appears any danger of their abusing either the person or the estate of the minor. Stiles, 456. Hard. 96. 3 Chan. rep. 58. 1 Sid. 424.
But there is no instance of the removal of a statute guardian. Yet terms have frequently been imposed, so as effectually to prevent such guardian from doing any act to the prejudice of the minor. But quaere whether causes may not arise for which a statute or testamentary guardian may be totally removed, notwithatanding the statute; as if he became lunatic, &c. for a guardianship being a personal is not an assignable office; nor can it go to executors or administrators. Vaugh. ISO. Cas. in eq. ab. 261. So far Harris. That guardianship is not assignable, 9 Mod. 90. Reynolds v. Lady Tenham. Mellish v. Da Costa, 2 Atk. 14. It was decided in Foster v. Denny, 2 Cas. in ch. 237. that although a guardian at common law might be removed, a statute guardian could not. But I doubt whether this be law, see the cases of Roach v. Garvan, 1 Vez. Sen. 160. Duke of Beaufort v. Berty, 1 P. Will. 704 O'Keefe v. Casey, 1 Sch. and Lefroy, 106.
Guardians under the English law, were either guardians, 1st, By chivalry: or 2dly, By socage: or 3dly, By nature, as the [ *455 ] parent: or *4thly By nurture, which is nearly the same: or 5thly, By statute (to wit, by 4 and 5 Ph. and Mary Ch. 8 and 12 Ch. 2 ch. 24. which enables a father to appoint a testamentary guardian: or 6thly, By custom. Co. Litt. 88. b. To which may be added after Hargreave in his notes thereon, 7thly, By election of the infant; before a judge on the circuit, or by deed, as in the case of lord Baltimore for the custody of his Maryland estate: or 8thly, By appointment of the chancellor: or 9thly, By the ecclesiastical court: or lOthly, Ad litem.
In Pennsvlyania, we have no chivalry: nor as I incline to think any tenure in the socage since the revolution, notwithatanding the terms of Penn's charter. Our tenure, being free of any rent or service, but what the state (i. e. the great mass of citizens) imposes by common consent, seems to be, allodial. We acknowledge guardianship of parents, and guardians appointed by will of the parents, and guardianship by appointment of the orphans court, without the consent of the minors if under 14 by petition of the mother or prochein ami, and with the consent of the minors if above 14, signified in open court. Our laws also, compel guardians and executors of whatever description to give security, if good cause be shown; and for like cause I apprehend they are also compellable to give additional security, or may be removed: see the laws of this state relating to the power and duties of the orphan's court.
Curators are appointed to minors by the code Napoleon; which also adopts the provision of the civil law for curators ad custodiam ventris, in favour of the heir.
Fama patroni parcendum. The action was directed to be an action on the case, in factum, in which no suggestion of fraud was permitted. Dig. 4. 3. 11.
$ 5. Qui dicatur suspectus, p. 64. Cod. 5. 43. 23.
$ 12. Si suspectus satis offerat, el quis dicatur suspectus, p. 64. The provisions of the latter part of this section are supported by Rex v. Sir Richard Haines, 1 Lord Ray. 3(51. and 12 Mod. 205. and Hill v. Mills, 1 Show. 293. and 12 Mod. 9. Anonymous, 12 Vez. 4. Generally although the court of chancery on evidence of misapplication of assets, or danger of the estate will appoint a receiver over an executor, it must be a strong case, Middleton v. Dodswell, 13 Vez. 260.
Liber 2. Tit. 2. De fluminibus et portubus, p. 68. see Hargreave's law tracts de portibus maris; and the cases of.Cortelyon v. Van Brundt, 2 Johns. N. Y. Rep. 360. and a full discussion of the right of fishery in Pennsylvania, in Carson v. Blazer, 2 Binney 475.
$ 4. De usu el projirietate riparum. See farther on this subject Dig. 43. 12. 3. and 41. 1. 15. 30.
*The law of Pennsylvania on this subject will be found [ *456 ] in part in the case of Carson v. Blazer, above cited from 2 Binn. 465. As to the law of England consult the 6th chapter of Sir Mathcw Hale's treatise, de portibus maris, published by Hargreave
among his law tracts: the case of Young v. , 1 Ld Raymond, 726,
which determines that at common law, the public ate entitled to towing patha along the banks of navigable rivers; also again determined by Holt, in Domina regina v. the lnhaliiants of Clnworth. 6 Mod. 163 ove;ru'ed in Ball v. Herbert, 3 Term Rep. 253, where the question is discussed at length. The case of the London wharves, 1 Sir W. Black. 583, determined that commissioners appointed by the king to lay out wharves, could only lay them out in places unbuilt on and open. As to the right of taking fish on the sea shore between high water mark and low water.mark, see Bagott v. Orr, 2 Bos. and Pull. 472.
$ 10. De rebus Sanctis. p. 70. Res sunctce, that is, res sanc'ila:' santione aliqua munitce: protected specially. I have translated it holy, as Harris has done; but the meaning may be different from Res sacrae, and Res religosae, which were set apart for religious purposes, and were divini juris: so in the same sense, the persons of princes and embassadors were sanctae. Liv. III. 55. Magistrates, &c. Dig. 1. 8. 8.1. But res sancta also include the res sacra, and religiosit. Gains in Dig. I. 8. 1. pr. Sanction esse interdum idem quod sacrum, idemque quod religiosHtn: interdum aliud, hoc est nec surcum nec religiosutn. Macrob. L. c.
$ II. De reb. singulorum. p. 70. Dominium is divided into three kinds by the civilians. It is either, 1st directum dominium, or usufructuary dominion. Daminium utile, as between landlord and tenant. Or it is 2dly full property and simple property. The former is such as belongs to the cultivator of his own estate, the other is the property of a tenant. 3dly Dominion acquired by the law of nations, and dominion acquired by municipal law. By the law of nations property may be acquired by occupation, by accession, by commixtion, by use or the pernancy of the usufruct, and by tradition or delivery.
As to the dominium eminens, the right of the public in cases of emergency to seize upon the property of individuals, and convert it to public use; and the right of individuals in similar cases to commit trespass on the persons and properties of others, see the opinion of chief justice M'Kean, in Respublica v. Sparhawk, 1 Dallas, 362, and the case of Vanborne v. Dorrance, 2 Dall. Rep. 304. I am not convinced by Judge Patterson in that case, that a just compensation must always be a money price.
[ *457 ] *See further as to dominium eminens, or the right of the community to take at a fair price the property of individuals for public use, the supplement of 1802 to the Pennsylvania compromising law respecting the Wyoming controversy. Vattcl L. I. ch 20. $ 244 —248. Bynkershoek, Lib. 2. ch. 15. Rosseau's social compact, ch. 9. Domat, L. 1. tit. 8. $ 1. p. 381. fol. ed. De Tott's mem. the case of a Jew, whom the grand Signor was compelled by the Mufti to purchase out: cited in Lindsay et al. v. the commissioners, 2 Bay. South Carolina rep. 41. $ 13. De vulneralione. In Sutton and Moody, 1 Salk. 556. 1 Lord Ray. 250. Comyns, rep. 34. cited in Vere v. Lord Cawdou, 11 East. 570, if one start a hare in my close and kill her there, it is my hare, otherwise if he hunt her into the ground of another; for then it is the hunter's. Though this indeed is not exactly the case of the text.
In Pierson v. Post, 3 Caines N. Y. Rep. 175. the question is very fully discussed, with references to the civil law doctrine, and the law as laid down by Puffendorf and Barbeyrac, and Fleta, and Blackstone; and determined that wild animals, ferae naturae (this was the case of a fox) become the subjects of occupancy, only when they are either taken, or so disabled or circumvented as to render their capture certain: and therefore, that no action will lie against B. for killing such an animal, originally started and pursued by the plaintiff A. who was on the point of taking it. That a fox is always so considered is certain, see the opinion of the court, in Respublica v. Sparhawk, late above quoted.
I confess I do not consider the subject exactly in the same point of view. It appears to me that the question is not merely whether the animal pursued be ferae naturae or not, but whether it be wild and noxious, without being valuable. A fox, a bear, a stag, a beaver, a raccoon, an otter, &c. are clearly wild animals» but the skin of them may be of more value than the flesh of a tame animal of equal size. If I pursue the creature for profit, I am entitled to it, if I have so conducted the chase as to put the atiimal in my power: any other person coming in between me and manucaption in such a case, cannot be considered as entitled to any part of the prey. Just as if a ship of war of a belligerent, pursues an enemy's vessel, and so gains upon her, being of superior force also, that the capture is certain, in such a case, another vessel of the same belligerent assisting, would not be entitled to any share of the prize money: but if the latter vessel, rendered a doubtful chance certain, and contributed to take a prize which probably would not have been taken without such assistance, then the prize cannot be claimed in toto by the first pursuer.
But if the wild animal be pursued not for profit but extirpation, *then, any intervenient person, may as I suppose, [ *458 ] lawfully assist; and no action lies against him for killing it, though started and chased by another, as was determined in Pierson v. Post. Still, a disunction may reasonably suggest itself, when the animal ir pursued not for the mere purpose of extirpation, but for the pleasure of hunting, according to the usual rules and practice of those who follow that amusement. I well remember that in my time and in my immediate neighborhood in Cheshire in England, foxes were regularly imported from France to supply the demands of the Hunt. The sudden shooting of a fox just ran down after a day's chase, would in that part of the kingdom be regarded as an outrage upon the rights of the pursuers, and upon the rules of good manners, not tamely to be borne. But the law has hitherto it seems, refused to recognize the rights of Foxhunters.
§ 14 De Apibus, p. 72. In conformity to the doctrine here laid down, it is decided in Gillet v. Mason, 7 John's. N. York Rep. 16, that Bees are ferae naturae, and until hived and reclaimed, no property can be acquired in them: and that the finding a Bee-tree on the land of another, and marking it with the initials of the finder's name, is not such an appropriation as will be a substitute for the actual reclaiming of them: nor can the finder maintain trespass against any other person who under th^se circumstances cuts down the tree and takes the honey.
In Wallis v. Mease, 3 Binney, 546, it was determined that wild bees remaining on the tree where they have hived, notwithstanding the tree is upon the land of an individual, and he has confined them in it, are not the subjects of felony. This section of Justinian is there cited and assented to by Judge Brakenridge, who enters at some length into the reason of the doctrine: see 2 Blacks. Comm. 392. Bro. Abs. title Property, 37.
$ 18. De occupatione eorum, p. 73. Found—means, not merely discovered, but taken up. Dig. 41. 2. 1. 1.
§ 19. Defcetu animalium, p. 73. That is by accession: which is 1st by increment of stock. 2dly By alluvion. 3dly An article manufactured out of materials belonging to us. 4thly By the annexation or junction to our property, of something belonging to another.