these distinctions were destroyed by the constitutions of Justinian. Cod. 7. tit. 5. 1. 1 and tit. 6. 1. 1. Harris. Ferriere.

Tit. 6. § 1. De servo instituto, &c. Injuria defunctus afficiatur, p. 16. It was ignominious for the goods of the deceased to be sold at public auction for debts, see Cic. orat. pro Quintio.

Ib. § 3. Quid sit in fraudem, &c. The fraudulent intent may lose its effect in this case a man knowing himself insolvent, enfranchises his slave by subsequent acquisition he becomes solvent: the slave in this case continues free.

In the following case, the creditors may lose the slave, altho' there was no fraud accompanying his manumission. A master enfranchises during known and acknowledged solvency. His house and goods are afterwards consumed by fire. The manumission cannot be set aside, for it was fair and legal when made. Ferriere.

In England, there are two statutes made to protect creditors against fraudulent conveyances and devises, 27 Eliz. ch. 4. and 3 W. and M. ch. 14. see Wilson v. Knubley 7 East. 128.

Ib. § 5. Quæ sunt justæ causæ. See the 9th and six following laws of the digest, de manum. vindic. and the 21st law of the digest qui et a quibus manum, that is dig. 40. 3 and dig. 40. 9.

A son might become master of his father, if he had been left heir by a testator, to whom the whole family belonged.

Procurator. Cujas thinks this is only procurator ad lites, not ad negocia. L. 22 observ. c. 16. A mere agent ad negocia, might be under the age of 17. see L. 3. § ult. de minor. (dig. 4. 4) and dig. 14.3. de

Instit. actione.*

Tit. 7. § 1. De lege Furia Caninia. This was a law passed in the time of Augustus to prevent the city being crowded with idle and disorderly persons. Suet. Aug.

Tit. 8. 2. De Jure civ. Rom. in servos. I have already treated of the condition of slaves among the Romans.

Ad sacram statuam. It was anciently the policy of almost all kingdoms to allow of sanctuaries or places of refuge, and they are said to have been permitted in England almost as soon as christianity was received. In the eighth year of Henry 8th, the following points (which will give the reader some idea of the power of sanctuaries) were affirmed and resolved in the case of Savage, to wit: That in England the pope without the king could not make a sanctuary: that sanctuaries must commence with a grant from the king, and then be confirmed by the pope : but that if they began by a bull from the pope, it would be insufficient, although they were afterwards confirmed by

the king that the general words Ambitus, Præcinctus, Clausura, in such grants, whether papal or regal, did only include the church, cloister, dormitory and church yard, but did not extend to the gardens, barns, stables and the like: that sanctuary de jure communi was only for forty days (which was a privilege belonging to all parochial churches and church yards) and that sanctuary for life, or as long as the person pleased (which was an usual privilege of religious houses) depended upon special grants, which were to be well proved, or otherwise were null and void. Keilway 188. Gibson's Codex 1188.

Sanctuary never extended farther in civil cases, than to save the body from execution. In criminal cases, it did not extend to treason; but it did to murder and other felonies. 2 Hawk. Pl. Cr. 32.

Sanctuaries lost much of their privileges by 22. Hen. 8 ch. 19. 27. H. 8. ch. 19. 32. Hen. 8 ch. 12. and ch. 20. and they were entirely abolished by 21 James 1. ch. 28. see Middleton's letter from Rome. 113. (Harris).

Major asperitas dominorum. In England the lord might rob, beat and chastise his villain at will, but was not allowed to maim him: for then, the villain might have had an appeal of mayhem against him. Le seigneur poit rob, naufrer, et chastiser son villein a son volunt. Salve qu'il ne poit lui maim, car donques il avera appel de mayhem envers lui. Termes de la Ley.

Tit. 9. De patria potestate, p. 22. Anciently fathers had the power of life and death over their children. This was restrained by Trajan who directed emancipation in cases of great severity. L. 1. of the Dig. si a parenti: and by Adrian L. 5. of the Dig. de Leg. Pomp. de parrisid: and by Alexander Severus, L. 3. Cod. de patria potest: so Ulpian de Adulteris: Inauditum filium pater occidere non potest, sed accusare eum apud præfectum, præsidemve provinciæ debet.

A man might acquire the rights of a father by marriage, legitimation and adoption.

As to the right of a father to the acquisitions of his child, See post. Inst. 1. 2. tit. 9.

Tit. 9. § 1. Definitio nuptiarum. Marriage in this passage is termed indiscriminately nuptiæ and matrimonium. There are other terms also applied to marriage, as Connubium, Conjugium, Consortium, Contubernium, Concubinatus.

Matrimonium, originally meant the union of male and female for the purpose of procuring offspring. Maris et fæminæ conjunctio, as the 2nd Tit. of the Institute has it. Nuptia strictly means, the marriage ceremony. Hence the expressions Justum matrimonium,

Justa nuptiæ, meaning that kind of marriage and marriage ceremony, which was conducted according to law: and as this was matrimony xar' ižoxav, matrimonium and nuptiæ soon became the popular expressions for lawful marriage.

Connubium, conjugium, consortium, are metaphorical synonimies for lawful matrimony. Connubium, a mutual submission to the marriage ceremony, from nubendo i. e. tegendo; it being the custom of the bride to cover her head with the flammeum or veil. Dr. Taylor deduces it without sufficient reason as I think, more distantly from a Hebrew root used 27. Is. 6. signifying procreation, production. Conjugium, a mutual yoke. Consortium, a mutual lot in life; for better for worse, as the English Church ceremony, properly states it.

The Contubernium was the matrimony of slaves, a permitted cohabitation; not partaking of lawful marriage, which they could not contract. It was applied also to other kinds of unlawful connection. Cod. 2. 21. 4. Cod. 5. 5. 3. Cod. 5. 5. 9. Cod. 6. 59. 9. Hence there was no process of adultery in favour of a slave. Cod. 9. 9. 23. Dig. 48. But although civil forms might be disregarded in Contuberniis, the laws of nature as to incestuous commerce, were held in full force, for the reason assigned in Inst. 1. 15. 3. See also dig. 23. 2. 14. 2.

5. 6.

Concubinatus. Semi-matrimonium: conjugium inequale. A full description of this may be seen in the last title of dig. 25. The Greeks also allowed of this left-handed marriage, as I believe it is called in Europe: . Not. ad Demosth. C. Nearchi T. III. p. 624. Concubinage was entered into before witnesses, otherwise it became prostitution, dig. 26. 7. 3. The parties might dissolve the contract and cohabitation at pleasure, dig. 25. 7. 1. It did not admit of adultery. dig. 25. 7. 6. As marriage was discouraged between officers of state in the provinces, and female inhabitants of the same province, they were permitted to take concubines of the province. Ib. 1. 5. dig. 23. 2. 38 and 57. and Cod. si quacumque prædict potest.

Concubinage was regulated by Constantine. Cod. 5. 26. unie. 7. 15 ult. and Justinian, Nov. 18. 74. and 89. Concubina est mulier libera inupta quam vir calebs domi concubinatus causa solam habet. That the man should be unmarried, was not required by the old or prior laws relating to concubinage, but the woman only. All that was formerly required of the man, was, that he should be at least twelve years of age, dig. 25. 7. 1. and that he should not have more concubines than one. Concubinage, was abolished by the emperor Leo. Nov. Leo. 91.

Concubinage, I understand obtained not many years ago in Germany,

if it do not at this day. I do not enter at large into the marriage ceremonies of the Romans; they may be sought in modern compilers, Rosinus, Adams; but after Dr. Taylor, I shall notice the three kinds of lawful marriage among that people.

Marriages were solennes, solemn; or minus solennes, less solemn. The solennes were either USU, FARRE, OR COEMPTIONE.

Marriage, Usu, by prescription, is briefly described by Servius, in his commentary on 1 Virg. Georg. 31. and 18 Aul. Gell. 6. When a woman cohabited with a man for a whole year, with a view to matrimony, (matrimonii ergo,) she became his property by prescription, under a law of the 12 Tables. Till the year was expired, she was uxor, matrona, but not materfamilias. An absence of three nights would break the prescription, or usucapion; this interruption was usurpatio.

This seems to have been the oldest form of Roman marriages. Marriage, Farre: Confarreatio. This was the most solemn form of marriage among the Romans: by it, a woman became copartner with her husband in all his sacred rites, and in all his substance, and was his sole heir at his death, if he died without children. Dion. Halic. 1. c. If he left children, she succeeded to equal portions of his estate. The children were patrimi, and matrimi, and had peculiar privileges; certain priests, and the vestal virgins being chosen from among them. 4 Tacit. ann. 16. 1. Aul. Gell. 12. The ceremony could not be performed without the presence of the Pontifex maximus, or the Flamen Dialis: Servius in 1 Georg. It was attended with the ceremony of the parties mutually breaking together a cake, Farra, Panis farreus. Ten witnesses were necessary. Ulpian tit. 9. § 1. It was dissolved by a similar ceremony, Diffarreatio. It fell into disuse, about the time of Tiberius, 4 Tac. ann. 16.

Marriage, Coemptione: or by mutual purchase. The man and the woman delivered to each other a small piece of money. Servius ad 4. Virg. Eneid. 103. Cic. orat I. 57. The man asked the woman, will you become to me a mother of the family? To which she replied, I will. In her turn, she asked, will you become to me a father of the family? and he answered, I will. The woman then delivered her piece of money and herself, into the hands of the man. Until this period, and preceding the Domi ductio, the woman was sponsa only after the Domi ductio, the marriage was compleated. Dig. 35. 1. 15.

The wife stood in

Coemptio, was also called conventio in manum. point of heirship to the husband, in place of a daughter.

Among the Romans, the foundation of marriage was the CONSENT of

the parties. Consensus, non Concubitus, facit nuptias. Dig. 50. 17. 30. Dig. 35. 1. 15. Dig. 24. 1. 32. 13. But this consent, must have been between parties willing to contract, of proper age, (that is 14 for the male, 12 for the female,) free from disabilities of relationship, able to contract, free from precontract, from legal disability, and that consent must have been ratified also by the consent of the parent. Instit. 1. 10. pr. which given afterward by Ratihabitio, would not answer the purpose of confirming the marriage. Dig. 1. 5. 11. Ib. 23. 2. 65. 1. Ib. 48. 5. 13. 6. But latterly a subsequent confirmation seems to have been valid: Cod. 4. 28. 7. Without this consent, the issue were illegitimate. Inst. 1. 11. 7. In cases of insanity or captivity, the consent of the parents was not necessary. L. 35. Cod de nupt. L. 28. Cod. de Episcop. aud.

In England both by the canon law, (canons of 1603. Can. 62. 63. 100. 101.) and the statute law, the consent of parents is required: the want of it indeed, did not avoid the marriage, but the minister who married them was punished by 7 and 8. W. 3. ch. 35. But by the marriage act of 26 Geo. 2. ch. 33. beside punishing the minister, the marriage is declared void in many cases where the requisites of that act are not complied with. The general train of chancery decisions, is also much in favour of devises on condition of marriage with consent of Guardians, &c. See 1. Fonb. 246. 1st n. edit. or L. 1. ch. 4. § 10. n.

The legal prohibitions were PARENTAGE, (Parentela) RELATIONSHIP, PUBLIC DECORUM, RANK, POWER and AGE: of which in their order.

Parentage: Cognation: Consanguinity. The connection of persons descended from a common parent or stock. Strictly, Cognati, are relations by the mother's side: Agnati relations by the father's side. Adgnati, or Agnáti, include Cognati, but not vice versa Dig. 38. 10. 10. Dig. 38. 7. 5. So Arrogati include the Adoptati, but not vice versâ. This cognation may be either natural; or civil arising from adoption; or mixed; of this more in L. 3. tit. 6. post.

Relationship or affinity. Is the connection between the husband and his wife's parents, and the wife and her husband's parents. Adfines sunt viri et uxoris cognati; dicti ab eo, quod duæ cognationes quæ diversæ inter se sunt,per nuptias copulantur ; et altera ad alterius cognationis finem accedit: ñamque conjungendæ adfinitatis, causa fit ex nuptiis. Dig. 38. 10. 4. 3. There are no degrees strictly speaking in affinity, as there are in parentage or consanguinity; but I am considered as related to the parents of my wife, in the same degree that she is. Although affinity takes place between me and my wife's parentage, and