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him. So far the Theodosian code, confirmed by the 22nd Novel, ch.15. The 117th novel ch 8. adds as causes of repudiation—if the wife bathes with strangers without the knowledge of her husband, or goes to public places of amusement without his knowledge, or absents herself from home against his consent, unless at the house of her parents. A woman may repudiate her husband, 1st For adultery, 21y Homicide, 3ly Sorcery, 4ly Treason, 5ly Perjury, (crimen falsitatis) 6ly Robbery of sepulchres, 7ly or Churches, 8ly Theft, 91y Harbouring thieves, 10!y Bringing home prostitutes, 131y attempting his wife’s life, 14ty Beating (Flogging, Flagellis ) her. The 117th novel ch. 9 adds, If the husband conceals his knowledge of any other person attempting her life : if he be accessary to another's attempt to debauch her: if he accuse her of adultery and fail in the proof * The crime of drinking wine, seems to have been abandoned at this time as a cause of divorce: nor is any mention made of impotence on the one hand, or sterility on the other: or of age, disease, banishment, vows of chastity, or monastic orders. In Nov. 22. 13 Deportation, and inter diction from fire and water, are declared not sufficient causes for dissolving matrimony: in the succeeding chapter is also condemned the licence of a wife to take a second husband, if her first being in the army has sent her no information respecting himself during four years. This term is extended to ten years; and she is required to have made diligent enquiries after him. I say nothing of the laws of Greece on this subject; except generally that in Sparta, divorces were very difficult, in Athens very easy. I refer to the Greek antiquities of Potter and Du Bos. Among the Jews according to Selden's uxor Hebraica, III. 17. old age, ugliness, and ill humour, were causes of divorce in a wife : so according to 24. Deut. 1, was uncleanness That people did not permit the privilege of divorce to wives. 15. Jos. antiq.11 and 18 Ib. 7 and 20 Ib. 15. In England, divorces are reasonably difficult, but the rights of infants seem to me superabundantly attended to, when the issue of an adulterous commerce, whereon divorce is adjudicated by the legislature, is still considered legitimate as to all the rights of succession to the estate of the injured father. It is very much the fashion, (not void of foundation indeed) to abuse Napoleon Buonaparte. It were much to be wished that the fashion equally prevailed, of imitating the many wise acts of that extraordinary man. The subject of divorce appears to me to be better settled in the Code Napoleon, than in any other system of laws ancient or modern ; and the general subject is well handled in the proliminary 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 honest 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. - w Cvjus 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 wel 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 nôt 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. Sinupt. 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. mec avunculus nec materfera 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 panis injustarum nuptiarum. Constitutionibus. Decurions, 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. 16. 239. Harris. 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 curiae introduced by Theodosius the younger, entitled the son to succeed to the father, but did not draw with it agnation. I.ex. 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 samere, 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 subse“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 S 1. Divisio adoptionis p. 28. Adoption was of two kinds, 1st, simple adoption of a filius familias, 21y, 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. 8.43. 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: hares judicabitur, eo quod nascitur de uxore, dum tamen presumi possit quod poterit ipsum genuisse. § 2. Ex nostra constitutione. Wid. Cod. 5. 27, 10. De naturalibus liberts. Non extranco. That is, any person out of the direct line : for persons adopted by an uncle or great uncle, are corsidered in the same light as if adopted by a soonger. 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 foemina 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. Deservo adaptato. Nostra constitutione: viz. Cod. 7. 6. 10. de lat. libert. tollend. Tit. 12. Quibus modis jus patriae potestatis solvitur, p. 33. 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. 133, 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,