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Constitutionibus introductum. Cod. 7. 39. 4 and 5. Cod. 7. 40. Dig. 5. 5.

§ 1. De actionibus quæ in hæredes transeunt vel non, p. 364.

In England, and generally in America, Actio personalis moritur cum persona. This ought not to be the case in several kinds of action, as battery, mayhem, seduction &c. Under the Roman law, actions for torts descended to the heirs, but did not survive against the heirs. Dig 50. 16. 38. Dig 2. 10 1. Dig 4. 7. 4 and 5. 7.4 Tit. X. De exceptionibus, p. 365.

This is a general view of what

may be called the special pleading of the Roman law.

§ 6. Decæteris exceptionibus, p. 367. Ex latioribus digestorum libris. Dig. 4. 1.

Neither the con

§ 10. De dilatoriis, p. 368. Subjacere censemus. stitution of Zeno or of Justinian here referred to, is extant.

§ 11. De dilatoriis ex persona, p. 369. Tit. XIV. De replicationibus, p. 370. rebutters, surrebutters

Pleas in abatement.
Rejoinders, surrejoinders,

§ 4. Quæ exceptiones fide-jussoribus pro sunt vel non, p. 371. See ante Inst. 3. 21. de fide-jussoribus: and Inst. 4. 13. 3. On the subject of mutuality between principal and surety, see expte: Gifford, 6 Vez. 805. and Wright v. Morely, 11 Vez. 12. 22.

Tit. XV. De interdictis, p. 372. Interdicts are now out of use. There is no difference between interdicts and actions. See the 8th section of this title.

§ 3. De interdictis adipiscendæ, p. 374. The Salvian interdict was drawn up by Salvius Julianus at the order of the emperor Adrian. Dig. 43. 33.

4. De interdictis retinendæ, p. 374. This section advances the common legal maxim of our law, in æquali jure, melior est conditio possidentis.

Uti possidetis. Dig. 43. 17. Ulp. Lib. 69. Cod. 8. 6.

Utrubi. Dig. 43. 31.

§ 6. De interdicto recuperandæ, p. 377.

Sed ex constitutionibys. Cod. 8.4. Tenentur lege Julia. Dig. 43. 16. Dig. 47. 1.

Tit. XVI. De pæna temere litigantium, p. 379.

§ 1. De jurejurando et pæna pecuniaria, p. 379.

This includes our Pennsylvania practice, of an affidavit of defence, an affidavit that a certiorari is not taken out for the purpose of delay, &c. The ancient action of calumny, was similar to our action on the case for malicious prosecution. As to amerciament in respect of suits, misericordia, and the capiatur pro fine of the English practice, ace Serjeant Williams's note 1. to Mortlake v. Charlton, 2 Saund. 193.

Ex constitutione.] The oath of calumny was in use long before the reign of Justinian, as appears from many passages in the digests; ff. 10. t. 2. l. 44. ff. 12. t. 2. l. 16. 34. ff. 39. t, 2. l. 13. §3 Qui damni infecti caveri sibi postulat, prius de calumnia jurare debet. And in section 4 of the same book are these words

Si alieno nomine caveri

mihi damni infecti postulem, jurare debeo, NON CALUMNIÆ CAUSA ID EUM, QUJUS NOMINE CAUTUM POSTULO, FUISSE POSTULATURUM. Ulpian.

But the oath seems afterwards to have fallen into desuetude, and to have been only revived by the constitution referred to; part of which is conceived in the following terms. Actor quidem jurat, NON CALUM

NIANDI ANIMO LITEM SE MOVISSE SED ESTIMANDO

HABERE.

BONAM CAUSA

Reus autem non aliter suis allegationibus utatur, nisi prius et ipse juraverit ;-QUOD, PUTANS SE BONA INSTANTIA UTI, AD RELUCTANDUM PERVENERIT. Cod. 2. t. 59. l. 2.

The canon law permits even a proctor to swear in animam domini sui, vid. decret. Greg. ix. lib. 2. t. 7. And this was formerly the practice in all the ecclesiastical courts in England, vid. ord. judiciorum. tit. 99. and 110.-canon 132.-But the oath of calumny is now disused not only in England, but also in those countries, where the canon law is in full force, and where the civil law is the law of the land, vid. La jurisprudence du Code conferee avec les ordonances Royaux de France. tom. 1. p. 297.-Groenw. de ll. abr. in 4tam. inst. t. 16.-Philiberti Bugni on ll. abr. tractatus lib. 1. cap. 3. Harris.

Alia nostra constitutione.] vid. Cod. 3. t. 2. l. 14. et novellam. Patro ni autem causarum, &c. Harris.

§ 2. De infamia, p. 380. Ignominiosi fiunt, Dig. 3. 2. Cod. 2. 12. Non contraris actionibus. Nam in contrariis judiciis de dolo aut perfidia non agitur; sed tantum de calculo et supputatione ejus, quod contrario judicio agenti abest. Vinn.

Pennsylvania, to the infinite disgrace of her jurisprudence, makes no difference between a debtor on account of crime, and a debtor on acGount of contract: under the insolvent laws, a convicted criminal is permitted to defraud the officers of court of their fees; and though in jail for damages given for the most atrocious injuries to person or cha❤ racter, this is no bar to his deliverance. Under the practice of the insolvent laws of this state, they appear to be enacted for the protection of criminals, and swindlers, as the favourites of the legislature: and this, under the notion, that all imprisonment on account of pecuniary obligation, is contrary to the mild character required in the laws of a democracy.

§ 3. De in jus vocando, p. 381. Dig. 2. 4. Cod. 2. 2.

Tit. XVII. De Officio Judicis, p. 382.

4. Familia erciscundæ, p. 384. This is our suit by writ of partition See acts of assembly of Pennsylvania digestedby Purdon tit. Partition and Walker v. Dilworth et al. 2 Dall. 257. and M'Kee et al. v. Straub e al. 2 Binn. 1. by which it was settled that 8 and 9 W.3 ch. 31. concern ing partitions, does not extend to this state.

6. Finium regundorum, p. 385.

Si finium regundorum ] The writs de perambulatione facienda, and & rationalibus divisis, are of the same use in the law of England, as the judicium finium regundorum in the Roman law.

The writ de perumbulatione lics, when two lordships are near each ether, and some encroachment hath been made; for then, by assem of both lords, the sheriff shall take with him the parties and their neigh bours, and shall make perambulation, and fix the bounds, as they were before. But, if one lord encroaches upon another, and will not agree to a perambulation, the party aggrieved shall have the writ rationalibu divisis against the other. vid. Terms de la ley, and Fitsherbert's not brev. p 303. 309. Harris.

Tit. XVIII. De publicis Judiciis, p. 386.

3. Exempla. De læsa majestate, p. 387.

Lex Julia magistratis.]va ff 48. t 4. and Calvin's lexicon juridicum In England the stated judgment for high treason, in all cases except counterfeiting the coin, is, that the offender shall be drawn to the place of execution, and there hanged by the neck and cut down alive; that his entrails shall be taken out and burned, his head cut off, his body quartered, and his head and quarters put up, where the king shall diThe judgment in the case of a woman is, "that she shall be drawn and burned."

rect.

In this judgment is implied, the forfeiture of all the offender's manors, lands, tenements, and hereditaments: his wife loses her dower: his children become base and ignoble: he loses his posterity; for his blood is stained and corrupted. All his goods and chattles are likewise forfeited. 3 Co. Inst. 200, 211. Strahan's Domat. supp. Hale's pl of the crown, 268 Harris.

4. De adulteriis, p. 387.

Lex Julia vid f. 48. t. 5. ad legem Juliam de adulteriis coercendis. Gladio punit.] In England, and most other countries at this day, a dulterers are punished by fine.

Cum masculis nefandam libidinem.] The crime here meant is buggery or sodomy; under which words all unnatural carnal copulations are

to be understood. The ancient Enlish lawyers all agree, that it ought to be punished with death, ultimo supplicio; though they differ, as to the manner of inflicting it. Britton says, that Sodomites and miscreants shall be burned :-Fleta writes, that they shall be buried alive; pecorantes et sodomita in terra vivi confodiantur-The author of the mirror also delivers himself much to the same purpose; and adds, that Sodomie est crime de majestie vers le roy celester. At this day by 25 Hen. 8. cap. 6. and 5 Eliz. 17. the commiters of this crime, whether male or female, are no otherwise punishable, than as common flons, who are denied the benefit of the clergy. 3 Co. Inst. cap. 10. Hawk. pl. of the crown, lib. 1. cap. 4. But it was doubted by some of the judges in the 4th year of Ges. 1. (though with little reason according to Fortescue) whether a man, indicted for buggery with a woman, could legally be convicted upon the above mentioned statute of 25 H. 8. Sce the King v. Wiseman, Fortescue's Repts. 91. Harris.

- See the notes of 8 Gibb. R. Hist. 19.

Stuprum. In Dean v. Peel, 5 East, 45. it was decided, that a father could not have per quod servitium amisit, if his daughter, though a minor lived at the time of the seduction in another person's family but returned to her father who maintained her. This is something like a sacrifice of justice to form.

$5. Lex Cornelia de sicariis, p. 387. vid. ff. 48. t. 8. ad legem Corneliam de sicariis et veneficis.

Venefici capite damnatur.] In England, all persons suspected of conjuration, witchcraft, or inchantinents, were anciently cited into the spiritual courts, where, if they were found guilty, scntence was pronounced; upon which the aid of the secular power was demanded by the ecclesiastical judge, and the supposed delinquents were burned, as heretics, by virtue of the writ de hæretico comburendo; which was taken away by the 29th of Charles the 2d, cap. 9. Vid. 3 Co inst. 44, 45.

Thus the ecclesiastical judges had the entire jurisdiction in respect to sorceries and enchantments, which were all ranked under the general term heresies, till the statute of the 33 H 8. which was the first statute, by which any of these offences were made felony; but this act was repealed by the 1st of Edward VI cap. 12.

Conjuration and the invocation of wicked spirits were aft rwards made felony by 3 Eliz. cap. 16. And again, by a statute in the first year of Fames the first, by which the ath of Eliz. is repealed.

The 1st of Jac. 1. cap. 12. is to the following purport.

"That the act of 5 Eliz. against co jurations, inchantments, and "witchcrafts, be utterly repealed-That if any person or persons

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"shall use, practice, or exercise any invocation or conjuration of any "evil and wicked spirit; or shall consult, covenant with, entertain, employ, feed, or reward any evil and wicked spirit to and for any in"tent or purpose ;--or take up any dead man, woman or child, out "of his, her, or their grave, or any other place, where the dead body "resteth, or the skin, bone, or any other part of any dead person, to "be employed in any manner of witchcraft, inchantment, charm or sorcerv, whereby any person shall be killed, destroyed, wasted, consum"ed, pined or lamed in his or her body, or any part thereof; that then every such offender, or offenders, their aiders, abettors, and counsel"lors, being guilty of any of the said offences, duly and lawfully con"victed, shall suffer pains of death, as a felon or felons, and shall lose "the benefit of clergy and sanctuary.

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"And further, to the intent that all manner of practice, use or exer"cise of witchcraft, inchantment, charm, or sorcery, should be from "henceforth utterly abolished, be it enacted, that, if any person or per"sons, shall from and after the feast of St. Michael next coming, take upon him or them by witchcraft, inchantment, charm, or sorcery, to "tell or declare in what place any treasure might be found, or where “ goods, or things lost or stolen, should be found, or to the intent to provoke any person to unlawful love; or whereby any cattle or goods “ of any person, shall be destroyed, wasted or impaired; or to hurt or "destroy any person in his or her body, although the same be not effect"ed; that then all persons, so offending, and being convicted, shall "suffer a year's imprisonment, and stand in the pillory once every “ quarter for six hours, and there openly confess his, or her error, and "offence." The second offence is felony. 1 Jac. 1. cap. 12.

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Lord Coke hath written a learned comment upon this statute, in which he declares, that it would be a very great defect in government to suffer so great an abomination, as conjuration, witchcraft, and sorcery, to pass with impunity. 3 Inst. 44.

But the tendency of the statute of the 1st of James the 1st, may best appear from the cheats, perjuries, and various other mischiefs, which it produced, to the ruin of many innocent persons; all which are but too well known to require any particular mention. vid. Mather's Hist. of New England; and Salmon's Universal Traveller. vol. II p. 695. This act nevertheless continued to be a scandal and reproach to the good sense of the nation, till the 9th year of George the 2d, when it was enacted by parliament." That the statute, made "in the first year of king James the first, intitled, An act against conju"ration, witchcraft, and dealing with evil and wicked spirits, shall be

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