liminary discourses of the orators on that occasion. In this country, the facility of divorce by management, is almost equal to that under the Government of France during the revolution. The case of Jackson v. Jackson, 1 Johnson's New-York Rep. 424 is warranted by sound law, and public expedience.

In Pennsylvania, the legislature of late years, have not only miserably wasted their time in debating and deciding on particular cases (such as convicted felons) which might easily be embraced by a general law, but they have deliberately interfered with cases (ill usage for instance) notoriously within the jurisdiction of established courts. This wanton waste of the time and money of the people, this needless interference with judicial authority, and this facility given to applications for divorce, appear to me great public evils: and arising from a deeper and more systematic plan of absorbing all kind of jurisdiction, and of course all power into the legislative, than is consistent with họnest views to the public good. Some of the cases in which this interference has taken place, are irresistibly ludicrous: see for instance the act to dissolve the marriage between Jacob Mayer and Catharine his wife, passed 28 March, 1808, which I presume the compiler of the index was ashamed to insert under the usual head of divorces.

§ 3. Qui sunt in potestate. In what cases the court will interfere to deliver a child whether bastard or legitimate into the custody of the father or the mother, see the King v. Soper. 5. Term Rep. 278. The King v. de Manneville, 5. East 221. The King v. Mosley, 5. East 224. note. The King v. Hopkins and wife 7. East 579.

Lib. 1. Tit. X. De nuptiis page 23. In the last note but one, I have nearly exhausted all I had to observe on marriage, relationship and divorce: to which I refer.

$2. De fratribus et sororibus. p. 24. See 18. Lev. 19. Deut. ch. 27. L. 17. Cod. h. t. Dig. 45. 1. 35. 1. The Athenians and Egyptians, permitted the marriage of brothers and sisters. Cor. nep. in Cim. Filium emancipare. Otherwise the marriage would be dissolved, as brothers and sisters cannot marry. Theophr.

3. De fratris et sororis filia vel nepte. The prohibition extends in England and here also I presume, to marriage generally with an illegitimate relation within the levitical degrees. Haines, v. Jeffel or Jescott. 1. lord Ray. 68. 5 Mod. 168. Comb. 356. This was the case of a bastard daughter of a sister: and it falls within the reason of the case of the daughter of a divorced wife by a second husband in section 9. of this title.

Cujus enim filiam, &c. Quere. I may not marry my aunt, my

grand-mother's daughter, but I may marry my cousin who is her daughter. Hence these words must be understood as cujus enim fratris vel sororis filiam. Ferriere in loc.

4. De Consobrinis. P. 25. The marriage of cousin-germans (sobrinarum) diu ignorata says Tacitus, in the speech he puts in the mouth of Vitellius, whom Claudius employed to defend his marriage with his neice Agrippina. 12 Ann. 6. But this was not true: see the case of Ligustinus 42 Liv. 34. Theodosius the great, forbad the marriage of cousin-germans by a constitution not extant, which was confirmed in substance by Arcadius law 5. of the Theodosian code, de incestuis nuptiis, who afterwards repealed his own and his father's law by L. celebrandis 19. Cod. de nuptiis. In the west, Honorius forbad the marriage of cousin-germans L. 7. Cod. Theod. Si nupt. ex rescript. pet. After the death of Justinian, the law of Theodosius was established again. Hence the law celebrandis 19. Cod. de nuptiis has been retrenched from the Theodosian Code. These fluctuations of the principle, that the 4th degree is not prohibited, most probably depended on the foresight of the benefit of dispensations.

5. De Amita 25. The aunt by the father's side, matertera being the aunt on the mother's side. In this section, the adoptive paternal aunt is forbidden, but not the adoptive maternal aunt. The reason is, that adoption being the work of the paternal father only, it draws with it agnation or relationship on the father's side only. Dig. 38. 8. 1. 4 and dig. 1. 7. 23. nec avunculus nec matertera per adoptionem fieri possunt Dig. 23. 2. 12. 4. Hence a man might marry the daughter of an adoptive sister, but not of adoptive brother. For the former follows the family of the natural father of the sister, but the father of the latter hath become allied by adoption. Matertera in Dig 23. 2. 55. 1. should be struck out. Ferriere.

12. De pænis injustarum nuptiarum.

Constitutionibus. Decu

rions, because the curia or senate of the Colonies was supposed to consist of the tenth part of the people: that is at the beginning. Dig. 50. Harris.

16. 239.

The Decurions were a kind of provincial senators and regulated all the public business of the place they lived in. It was an honourable, but an expensive and troublesome employ. This legitimation per oblationem curia introduced by Theodosius the younger, entitled the son to succeed to the father, but did not draw with it agnation. Lex. 3. Cod. de natur. lib. L. 9. Cod. eod. Nov. 89 ch. 2 cum seq. The last sentence of this section is of difficult meaning, for where was the nenecessity of granting by law the rights of legitimation to legitimate

children? Ferriere thinks it relates only to the case of a child in ventre sa mere, at the time of marriage; which otherwise would have taken its civil state from the time of conception.

A third method of legitimation by imperial rescript, was introduced by Justinian, Nov. 74. c. 2 and 89 and c. 9. and 10.

Nec non is, qui, &c. By a constitution or canon of Pope Alexander, the third, it was enacted," that children born before the solemnization " of matrimony might nevertheless become legitimate by the subse66 quent marriage of their parents. And in consequence of this canon, "all the bishops of England in the reign of Hen. 3rd, petitioned the "lords, that they would consent that all such who were born before matrimony, should be legitimate, as well as those who were born af"ter matrimony, in respect of hereditary succession, inasmuch as the "church accepteth all such as legitimate." But all the earls and barons with one voice answered that they would not change the laws of England, which had hitherto been used and approved. Stat. Mert. 20 Hen. 3 Co. Litt. 245. or 2 Co. Inst. 97.

Tit. XI § 1. Divisio adoptionis p. 28. Adoption was of two kinds, 1st. simple adoption of a filius familias, 2ly, adoption by rogation of a pater familias; so called because the parties were asked rogantur, if they were content so to do. The former took place before magistrates, Dig. 1. 7. de adoptionibus, Aul. Gell. noct. att. L. 5. c. 19. The latter by imperial letters Dig. 1. 7. 1 Aul. Gell. ub. sup. Cod. 8. 48. Ferriere. (Ferriere's other references to the Digest and the Code, do not support this position.) Adoption forms no part of the law of England: but if a person takes the the child of another to bring it up, and (in popular language) adopts it as part of the family, the person thus adopting stands in loco parentis. Thus in Edmonson v. Machell 2 Term Reports 4 an aunt recovered damages per quod servitium amisit for debauching her niece. So also in Irwin v. Dearman, 11 East 23. damages of the same kind were given to a man who had brought up the daughter of his friend. This may be called a quasi adoption. Bracton L. 3 ch. 29. mentions another kind, viz. where a husband rears and educates his wife's bastard, he shall be considered as heir to the husband on presumption that he might have been legitimate hæres judicabitur, eo quod nascitur de uxore, dum tamen præsumi possit quod poterit ipsum genuisse.

§ 2. Ex nostra constitutione. Vid. Cod. 5. 27. 10. De naturalibus liberis.

Non extraneo. That is, any person out of the direct line: for persons adopted by an uncle or great uncle, are considered in the same light as if adopted by a stranger. Vinnius.

§3. De arrogatione impuberis, p. 29. Bonorum means not merely goods and chattels, but estate and property, Law 208. Dig. de verbor. signif. and L. 2. Cod. eod. This fourth part became due as a debt after the decease of the adoptive father, and might be recovered by a condictio de lege, Dig. 37. 6. 1. 21. The adoption of impuberes was first allowed by Antoninus Pius, provided it was under the authority of imperial letters. By Impuberes are here meant, not boys under 14 and girls under 12, when they were at liberty to contract matrimony, but the ages of 14 and 18. See post. § 4 of this Title.

§ 9. Si is qui generare, &c. Spado, is one who is incapable of procreation; and the disability may arise either from a permanent cause, as castration, or a temporary one. Dig. 23. 3. 39. 1. Dig. 28. 2. 9. The prohibition in the other case, founded on the silly reason that a man who could not naturally be a father, could not be so by adoptive fiction, was abrogated by Leo, Nov. 36.

§ 10. Si fœmina adoptet. They might be arrogated by imperial rescript. Dig. 1. 7. 21. But the adoptive fiction was restrained here also at first: because even children by marriage could not take the name or come under the power of the mother. The emperor Leo, Nov. 26, permitted women who never had children, and even unmarried women to adopt.

12. De servo adoptato. Nostra constitutione: viz. Cod. 7. 6. 10. de lat. libert. tollend.

Tit. 12. Quibus modis jus patriæ potestatis solvitur, p. 83. There are some curious cases in the English books on the doctrine of filial emancipation, as connected with parochial settlement. The King v. Tottington, Caldecot. Sett. Cas. 287. The King v. Broad-Hembury. H. 25 Geo. 3. 2 Const 55. 10 East, 91. The King v. Witton cum Twambrooke, 3 Term. Rep. 355. wherein Lord Kenyon's opinion is corrected in 10 East, 90. Rex v. Sowerby, 2 East, 276. The King v. Roach, 6 Term Rep. 247. Rex v. Woburn, 8 Term Rep. 479. The King v. the Inhabitants of Cowhoneyborne, 10 East, 88.

1. De deportatione. Deportation was banishment for life: attended with the loss of civil rights and forfeiture of property. Relegation, was banishment for years, without the loss of civil rights. Dig. 48. 22. throughout. And so is the law of England, vid. Co. Litt. 183, throughout.

In what cases the replication of Exile, Relegation, Banishment or Abjuration, on the part of a woman suing as feme sole is necessary, see Bagget v. Frier et al. 11 East, 301, where the principle of Marshall and Rutton, 8 Term Rep. 545. and Chambers and Donaldson, 9 East,

471. are recognized. The terms exile, relegation, and banishment however, are not to be found but in the marginal abstract.

§3. De servitute pœnæ, p. 34. Slaves of punishment, as having no certain or specified master. This kind of servitude was abolished by Justinian, Nov. 22. 8.

§4. De dignitate. See Cod. 12. 3. 5 de Consulibus. Nov. 70. by which emancipation was annexed to the consular, episcopal and some other dignities.

Patriciatus dignitas. In Livy's time, this belonged to the children of ancient senatorial families: but on the removal of the seat of government to Byzantium, this title was confined to persons chosen by the emperors as counsellors of state after having been Curule Ediles.

$5. De Captivitate et postliminio, p. 35. The paternal power was only suspended during captivity. Dig. 14. 6. ult. Dig. 49. 15. 12. 1. The captives had a right to two fictions of law in their favour. 1st The jus postliminii; by which the period of captivity was merged, and the captive on his return, entered into all his rights, as if he had never been absent. Dig. 38. 16. 15. Dig. 14. 6. 1. 1. Dig. 26. 1. 6. ult. But he could not change or set aside, acts legally performed in his absence. Dig. 4. 6. 19. 2ly The Lex Cornelia, regarded those who died in captivity, as having died the moment preceding their captivity. L. 6. Cod. de poss. rev.

§ 6. De emancipatione, p. 35. By the law of the 12 Tables, a son was free when his father had sold him three times. Si pater filium ter venumduit, filius a patre liber esto. The three-fold sale was thus conducted. The father sold his son to a mutual friend, who paid him a piece of money (Sestertius) in the presence of five witnesses, and of the Libripens or scale-holder. The purchaser then held the son as a slave. He then enfranchised him by the Vindicta; whereupon the son being free from slavery, again returned under power of his father, who in the same manner sold him a second time. He was then enfranchised a second time; sold a third time to the father (for otherwise, the seller had he manumitted him, would have been entitled to the rights of a patron) who liberated him in the usual manner.

The parties to this proceeding (Emancipatio per æs et libram) were the father Pater: the friend, Pater fiduciarius: the Libripens or balance-holder: the Antestator, or person who summoned the witnesses &c. 1 Hor. Sat. 9. v. 76: the witnesses Testes. The process mancipatio; manu traditio; by the words mancupo tibi hunc filium qui meus est. The purchaser holding up the money, said hunc ego hominem ex jure Quiritium meum esse aio, isque mihi emptus est hoc are, aneaque libra