ritable institution, the legislature may think it reasonable, that they be excluded from eligibility, or appointment to office of a profitable nature, which is the case in England. Perhaps the preachers of all denominations would rather say, in the language of the merchants to the king of France, Laissez nous faire; let us alone; the judges have not served 115, by distinguishing farther than the act of assembly has done. "There are two kinds of divorce, the one total, the other par "tial; the one a vinculo matrimonii, the other merely a mensa et thoro." 1 Bl. Com. 440. IN England, on a cause arising ex post facto, as intolerable cruelty, adultery, a perpetual disease, the ecclesiastical court administers the remedy of a divorce a mensa et thoro; but if the cause existed previous to the marriage, as consanguinity, corporeal imbecility, or the like, a separation a vinculo matrimonii may be decreed: 2 Bl. Com. 94. In cases even of adultery, the party complaining is driven to parliament for redress. Coop. Just. 534. In Pennsylvania, power was given to the governor, by an act of 1705, to grant divorce from bed and board, to the párty complaining of adultery. But this power has been superseded by an act of the 19th Sept. 1785, which enables the supreme court to proceed, on complaint of a party, and. grant a divorce not only from bed and board, but also from the bonds of matrimony itself, where "either party at the time of the contract was and still is naturally impotent or incapable of procreation, or that he or she hath, knowingly entered into a second marriage, in violation of the previous vow he or she made to the former wife or husband, whose marriage is still subsisting, or that either party hath committed adultery, or wilful and malicious desertion and absence, without a reasonable cause, for and during the space and term of four years." By sec. 10, it is provided, that the supreme court may grant the wife a separation from bed and board, in case the husband shall maliciously either abandon, or turn his wife out of doors, or by cruel or barbarous treatment endanger her life, or offer such indignities to her person, as to render her condition intolerable, or life burthensome, and thereby force her to withdraw from his house and family. By a supplement, passed, 2d Ap. 1804, the same powers are given also to the judges of the courts of common pleas. In cases that are out of these provisions, application must be made to the legislature. The constitution of feuds, had its original from the military policy of the northern, or Celtic nations It was brought by them from their own countries, and continued in their respective colonies, as the most likely means to secure their new acquisitions. 2 Bl. Com. 44. THAT it was brought from their own countries, I incline to doubt. The contrary would seem to appear from Cæsar; Com. de bel. Gal. 1. 6. c. 12. And this is the earliest historical document we have upon the subject. Plerique quum aut ære alieno, aut magnitudine tributorum, aut injuria potentiorum premuntur, sese in servitutem dicunt nobilibus.* From this we find that taxes were paid; and thence it may be inferred that the tenure of lands was allodial, not military. Druides a bello abesse consueverunt, neque tributa una cum reliquis pendunt. Militia vacationem omniumque rerum habent immunitatem. From hence it would seem that their establishment was the same with us in their republics; taxes, and militia duty. Noticing the customs of the Germans, l. 6. c. 21. he says neque quisquam agri modum certum, aut fines proprios ha *The greater part when pressed with debt, or the weight of taxes put themselves in scrvitude to the nobles. It is customary for the Druids to be absent from war, nor do they pay taxes with the rest. They have an immunity from militia duty, and from all things. 11 bet. Sed magistratus ac principes, in annos singulos, gentibus cognationibusque hominum qui una coierunt, quantum eis, et quo loco visum est, attribuunt agri, atque anno post alio transire cogunt.* Thus we see not only that the assignment of grounds was of the civil authority, but that it was done by the magistrates, and principal men; the word principes not duces, is used. At the same time, there was no permanent beneficium or military feud. But Tacitus, in that invalulable monument which he has left us on the manners of the Germans, gives us a much more minute account of the state of society, and customs amongst these people. Arva per annos mutant, says he.‡ Tacit. de mor. c. 26. They could not therefore be considered as having each a particular portion of soil to which they were attached; and for which they owed service, homage, and allegiance. The distribution of soil, and establishment of military services was the result of the new situation in which these were placed. This new division of property, says Doctor Robertson, together with the maxims and manners to which it gave rise, gradually introduced a species of government formerly unknown. This singular institution is now distinguished by the name of the feudal system: 1 Rob. Cha. V. 10. I yield therefore, to the opinion of those who maintain. that we have no trace of this system in the Saxon governments. It was introduced into England by the conquest of the Normans, and still remains, so far as it exists in England, a monument of that conquest. "The last and most important alteration," says Blackstone, speaking of the effect of this conquest, "both in our civil and military polity, was the engrafting on all landed estates, a few only excepted, the fiction of feudal tenure ; * Nor has any one a certain measure of land, or their own boundaries: but the magistrates and chiefs every year assign to the tribes, and kindred tribes that come together, as much as seems good to them, and in what place; and year after year they oblige them to remove. They change grounds every year. which drew after it a numerous and oppressive train of ser vile fruits, and appendages; the genuine consequences of the maxim then adopted, that all the lands in England were derived from, and holden mediately or immediately of the crown," 4 Bl. Com. 418. and 438. He adds, "these slavish tenures, the badge of foreign dominion." A legitimate principle of these tenures, was the doctrine of unalienable and perpetual allegiance. It was not necessary that the emigrant to these shores should carry that principle with them as applicable to their situation, having left, as will be admitted, this badge of servitude, the feudal system behind them. Those who give such a principle countenance, will deny that it is peculiar to this law, and will endeavour to give it a foundation, as Blackstone would wish to do, on the general grounds of universal law. But for this see the excellent note of judge Tucker, in loco. How far this system has been broken down in England, and how far, what I consider to be a root of it, remains, this doctrine of inextricable allegiance, the student will investigate. I may say something more of it in another place. But God forbid that I should consider it as introduced here. This vestige of the iron age, and vassalage of the iron crown, our republican institutions have put, and will put down. -Si qua manent sceleris vestigia nostri i "The last consequence of tenure in chivalry was escheat "which is the determination of the tenure, &c. by either natural "or civil means." 2 BI. Com. 72. EXTINCTION of inheritable blood by civil means does not take place in Pennsylvania. "No attainder shall work corruption of blood, nor except during the life of the offen der, forfeiture of estate to the commonwealth." State Const. Art. 9, Sec. 19. 1 In default of heirs, land escheats to the commonwealth. In England the King, who is esteemed in the eye of the law, the original proprietor of all the lands in the kingdom, derives a part of his ordinary revenue from this source. Bl. Com. 303. By our act of assembly of 29 Sept. 1787, entitled "An act to declare and regulate Escheat," it is provided, Sec. 1, that, "if any person who at the time of his or her death, was seized or possessed of any real or personal estate within this commonwealth, die intestate, without heirs or any known kindred, such estate shall escheat to the commonwealth subject to all legal demands on the same." The act goes on, and provides that "no escheat of real estate for want of heirs, shall be where brothers or sisters of the half blood, or father or mother, or grandfather or grandmother of the deceased, survive, to take the same." The student will at once see that this provision of the act changes the law as it is in England, where land will rather escheat than ascend to parents, or go to the half blood, or to blood not of the first purchaser. The law of escheat is regulated by the law of distribution. Escheat, therefore, does not go to the commonwealth, in prejudice of aliens, who are enabled by act of assembly of 23 Feb. 1791, to acquire, to take, hold and dispose of real estates, by devise, or descent, and dispose of personal estates to which they may entitled by testament, donation or otherwise. 2 Smith's laws, 425. be To complete the title by escheat, the English law requires the lord to enter, or sue out a writ of escheat. By the act of Pennsylvania, 1791, 2d Smith, 421, provision is made to complete title by escheat to the commonwealth. Sec. 8. Escheator general to be appointed, with deputies. On information of any person dying without any known heirs, the escheator general, or deputy issues his precept to the sheriff or coroner, who issues his summons for an inquisition to be holden to ascertain the escheat, which inquisition shall be transmitted to the prothonotary of the supreme court, &c. &c. &c. |