reasonable, under some circumstances, and the debtor might be very willing to pay five per cent per month for a very short time, it would by no means follow that it would be reasonable, or that the debtor would be willing to pay, at the same rate, if, for some unforeseen cause, payment of the note should be delayed a considerable length of time. Similar views were expressed in Brewster v. Wakefield. The court says that when the note is entirely silent as to the rate of interest thereafter, if it is not paid at maturity, the creditor is entitled to interest after that time by operation of law and not by virtue of any promise which the debtor has made; that if the right to interest depended upon the contract, the holder would be entitled to no interest whatever after the day of payment. In Brannon v. Hursell, 112 Mass. 63, however, the court held that, when a recovery is had upon a note bearing ten per cent interest, the plaintiff is entitled to interest at the same rate till the time of verdict. The reason given is that "the plaintiff recovers interest, both before and after the note matures, by

kinson v. Crowe, L. R., 10 Ch. 622, and of the Court of Chancery in the same case, L. R., 19 Eq. 593. In Davidson's Precedents on Conveyancing (3d ed. p. 48) it is said: "the result of the authorities appears to be that in case where the agreement is silent as to the particular covenants to be inserted in the lease, and provides merely for the lease containing usual covenants, or, which is the same thing, is an open agreement without reference to the covenants, and there are no special circumstances justifying the introduction of other covenants, the following are the only ones which either party can insist upon, namely, covenants by the lessee: (1) to pay rent; (2) to pay taxes except such as are expressly payable by the landlord; (3) to keep and deliver up the premises in repair; and (4) to allow the lessor to re-enter and view the state of repair, and the usual qualified covenant by the lessor, for quiet enjoyments by the lessee." See, however, Wilbraham v. Livesay, 18 Beav. 206; Parish v. Sleeman, 1 De G. F. & J. 326.

In the case of Arthur v. Craig, 6 Cent. L. J. 424,

debt, and is entitled to the rate fixed by the contract." This reasoning is at variance with the

reasoning in the House of Lords in the case cited;

and with the reasoning of the Supreme Court of the United States, in the cases cited; and with the reasoning of the Massachusetts court itself, in Ayer v. Tilden, 15 Gray, 178. It is there said that the interest after maturity "is not a sum due by the contract; that it is given as damages for the breach

of the contract, and must follow the rule in force within the jurisdiction where judgment is recovered." The rule in the principal case has also been adopted in Connecticut and Rhode Island. Hubbard v. Callahan, 42 Conn. 524; Pierce v. Swanpoint Cemetery, 10 R. I. 227.

In Hampshire v. Wickens, 38 L. T. Rep. (N. S.) 408, decided in the chancery division of the English High Court of Justice on the 29th of January last, the defendant entered into an agreement to take a lease of a dwelling-house in Kensington, to contain all usual covenants and provisoes. The lease tendered to the defendant contained a covenant not to assign without the lessor's consent,

1878, term, it is held that the executive may annex provided it be not illegal, immoral or impossible of to a pardon any condition precedent or subsequent, performance. In this case a person convicted of larceny from a building in the night time, and sentenced to imprisonment for ten years, received a pardon containing these conditions: that the prisoner should, during the remainder of his term of sentence, refrain from the use of intoxicating

liquors as a beverage; should exert himself for the support of his mother and sister, and should not be convicted of a violation of any criminal law of tions he was to be liable to summary arrest upon the State. In case he violated any of these condithe warrant of the governor at the time, whose of the proof of the violation of the first and second judgment was to be conclusive as to the sufficiency conditions, and was to be confined in the peniten tiary for the remainder of the term of his sentence. conditions, and was set at liberty. He violated the The prisoner formally accepted the pardon and its condition against the use of intoxicating liquors and was arrested upon a warrant by the governor and returned to the penitentiary. Upon proceed

and responsible tenant. The present action was brought to enforce the agreement. The court held that the covenant was not a usual covenant, and the action was dismissed. The authorities upon this subject in England are conflicting. In Church v. Brown, 15 Ves. 258, and Henderson v. Hay, 3 Bro. C. C. 632, such a covenant was held not to be usual, but in Haines v. Burnett, 27 Beav. 500, and Strangways v. Bishop, 29 L. T. Rep. (O. S.) 120, the contrary was held. The doctrine of the principal case has also the support of the Court of Appeal in Hodg

return to the penitentiary were valid and proper Whether an executive can impose conditions in pardons has been doubted. 1 Whart. Cr. Law,

591 d. But it is now considered as settled that such conditions may be made. This is eminently the case where the offender, after having been released upon condition that he leave the country, Case, 8 W. & S. 197; State v. Smith, 1 Barley, 283; refuses to go or surreptitiously returns. Flood's People v. Potter, 1 Park. Cr. 47; State v. Chancellor, 1 Strobh. 347; State v. Fuller, 1 McCord, 178; Roberts v. State, 14 Mo. 138.

THREE GREAT LAW-BREAKERS.

escaped the vengeance of the law, certainly argues a very singular condition of morals. In truth there

probably regard the charge as a gross slander. We are in the habit of pluming ourselves as a law-abiding and order-loving people. And yet it must be conceded that we are a long-suffering people under notorious and shameless infringements of our laws, and that there is a vast amount of "dead-letter law" among us. We have taken pains to speak before on this subject. Our attention is called to it again by the recent and nearly simultaneous death of three very prominent and notorious persons, all long-time residents of the metropolis of this country. It has occurred to us that if a British tourist should have visited our country about three years ago, and should have animadverted upon the lives, employments and influences of William M. Tweed, John Morrissey and Madam Restell, in just and natural terms, the impulse of our people would have been to resent the attack as they resented the attack of Dickens upon the American institution of slavery. Not to say that our people would ever seriously have defended the crimes of political corruption, gambling and abortion, yet so great would have been the sensitiveness of the sore spots that they would have shrunk from the probe of the censor. The anger of men at the exposure of their vices is much deeper than their pleasure at the approval of their virtues. So all the praise which Dickens bestowed upon our State prison system and our charitable asylums could not allay the irritation which he excited by his just denunciation of slavery.

Doubtless, the foreign tourist would have been in error in assuming that the toleration and prosperity of such persons as Tweed, Morrissey and Restell was a fair index or gauge of the moral state of the community, but he could not have been blamed for remarking such an astonishing spectacle, nor for accusing so supine and indifferent a community of practical participancy in their crimes. That one

man should have arisen from the condition of an uneducated mechanic to the rank of State Senator, to the absolute control of a great political party, and the undisputed disposal of millions of the public money, and should for years have controlled elections and made and unmade high officials by his breath, all through the undisguised practice of bribery and corruption; that another man, originally a professional prize-fighter, should have been repeatedly chosen by wealthy and aristocratic constituencies to seats in the State Senate and the lower house of Congress, while all the time the proprietor of a gaming-house; and that a woman, by profession an abortionist, should have lived in a palace on Fifth avenue, and flaunted her showy equipage in Central Park; and that all these persons should for so many years, either not have excited or have

defiance of the law. For how many years did very respectable men quote Tweed's formula, "what are you going to do about it?" with a tacit assent to the idea that it would probably be of little use to try to do any thing about it. Even now, there are probably a good many virtuous and respectable people who think rather impatiently of Mr. Comstock's efforts to suppress infanticide and obscene literature. There was a good deal of shrewdness in the reply made by a lawyer whom the writer once detected in the act of purchasing a copy of the Police Gazette: "Is it possible that you buy that paper?" Certainly," was the reply, "what gentleman doesn't?" So long as a crime does not affect ourselves, or involve human life, our sympathies for the sufferers are not apt to be very acute, and in fact are quite apt to be on the side of the offender. Men always like to see the weaker party come off best. That was the feeling which led ladies to visit highwaymen in their cells, and give them flowers on their way to execution. In regard to offenses like those of Tweed, it may be added, that "what is everybody's business is nobody's business." Offenses against the public treasury are quite generally regarded as venial. In the opinion of a great many very decent people it is not a very heinous offense to smuggle, provided one does not make a business of it; but a little amateur smuggling for one's self or one's friends, accompanied by a little judicious corruption of the revenue officers, is a rather clever achievement. Tweed had the advantage of being a public robber on a grand and audacious scale. What protected Madam Restell in her long career of infamy, on the other hand, was the peculiarly secret character of her offense, and the improbability of the employment of accomplices, or the use of appliances which could be traced, together with the idea so prevalent that the offense of abortion is rather against sentiment than against morals. It would be difficult to say what protected Morrissey in his business, unless it was true, as he was in the habit of declaring, that there was a public demand for well-regulated gambling places. Mr. Morrissey, with his blunted moral perceptions, used to justify himself by declaring that gambling was no worse than stock-jobbing, or for that matter, than trade itself. But when he invited us to come into his club house at Saratoga some years ago, and see the persons who were his patrons, our acceptance of his invitation convinced us that he was in no danger of prosecution, however erroneous might be his views upon the comparative moral equality of Saratoga and Wall street. If any one is disposed to try the experiment, he may easily experience the sensations of young Goodman Brown,

in Hawthorne's weird legend, when he attended the witches' pow-wow and found there the minister, elders, and deacons, and the matrons and maidens of his own church.

It is true that the community of the metropolis has lashed itself into a spasm of virtue. It has crushed out Tweed and "smashed his ring." It has driven the Restell woman to suicide, and has experienced a holy satisfaction in the reflections incident to that occurrence. The newspapers and the pulpit have had much to say against Morrissey's occupation, but we have not heard up to the hour of going to press, that his place has been shut up except for the funeral. It has thundered awfully. An outraged people has arisen in its majesty and wrath, and overwhelmed the audacious violators of the law, and all that sort of thing. But the question arises, are political corruption and bribery, abortion, and infanticide, and gambling, any less prevalent than before the storm? Are the laws against these crimes any less dead-letter laws? We would that these inquiries might be answered in the affirmative, but we fear that they cannot be. We fear that there is the same individual carelessness about infractions of public rights; the same unrestrained licentiousness; the same greed of gain and love of chance, which rendered possible the career of these three great law-breakers. Law-makers and lawyers cannot convert the spirit of a community, but they can at least do something to preserve law from derision. They can encourage attempts to detect and punish violations of law, and they can punish the guilty. The public authorities have been and are still blamable in this matter. There is a leaven of public sentiment that would sustain them in advances against the strong-holds of such crimes as we have mentioned, and a vigorous and unrelenting prosecution of such offenders would at length create a general public interest which is now lacking. Rain will extinguish a fire, but if you burn powder enough you will produce a rain, as the history of great battles show. There may not be public interest enough to inspire the prosecution of minor offenses, but the faithful discharge of official duty would engender the public spirit which should be the moving cause.

MARRIAGE.*

ISAAC VAN WINKLE, ESQ.

T is through the marriage relations that the family

I has its origin, and in modern times the family, as

individuals, compose the State. In other words, the State is an aggregate portion of the human family.

*These lectures on Civil law and Comparative Jurisprudence were collected for the instruction of the post-graduate students of the Columbia College Law School, and not with any view to their publication. They are made up of the Roman and the modern Civil law, and the Codes of the principal nations of Europe, and embrace all the continental law on the subjects. I have allowed them to be put in print for the use of those who wish to investigate the subject more thoroughly. All I purpose in these lectures is to take

The theory of the State is to preserve the family in its integrity; since out of the relations of the family to the State, spring the rights and duties relating to persons and property. The preservation of the family as an integral atomic group is one of the most important subjects in behalf of which law exists. Marriage determines the creation of a new family group, and from which act a number of relations spring which, taken in the aggregate, constitute marriage a status. The tendency in all advancing nations is to secure certainty and publicity by better guarantees than those offered by popular practices; and thus the anomaly is often presented by two sorts of marriage ceremonies co-existing in the same State - the one reflecting and possessing the ancient usages of the people; the other the creation of positive law as based upon carefully weighed considerations of public convenience. The theory of marriage as a constituent element of the Roman family was only an accessory of the potestas, that is, the power of the father over the children. According to Modestinus, marriage is 'Nuptiæ sunt conjunctio maris et fœminæ et consortium omnis vitæ, divini et humuni juris communicatio." That is a contract by which a man and a woman enters into a mutual engagement to live together their whole life-time as enjoined upon them by laws human and divine. Justinian says:

"Roman citizens are bound together in lawful matrimony when they are united according to law." Again, he defines marriage, “Nuptiæ autem sive matrimonium est viri et muleris contunctio individium vitæ consuetudinem continens." Marriage or matrimony is a binding together of a man and woman to live in an indivisible union. Justinian's definition is perhaps the best since it attempts the least. Nuptia is properly the ceremonies attending the formation of the legal tie; and matrimonium is the tie itself; but the jurists use the two terms quite indifferently, as for instance, Modestinus says: "NupThe "individua tia conjunctio maris et fœminæ." vita consuetudo," implied a community of rank aud position and of sacred and human law, "divini et humani juris communicatio," but not necessarily of property. Marriage gave neither party any right over the property of the other, except when the wife passed in manum; and then all that she had belonged to the husband. Among the Romans marriage was distinguished into matrimonium justum and non-justum. Under the first both parties could lawfully marry, which form invested or carried with it the paternal power and other civil rights. In order that a marriage should have the effect of justæ nuptiæ, it was necessary that three conditions should be fulfilled. First. The consent of the parties. Second. The parties must be puberes; the man must be fourteen and the woman twelve years of age. Third. They must have the connubium, or the legal power of contracting marriage which consisted of three conditions. First. By the old law, both parties must be citizens, or be invested with just so much of citizenship as to enable them to form a justa nuptiæ. Second. They must stand within

the legal systems of the leading nations of Europe under some head and compare them with each other. By this method we must embrace somewhat of the history and philosophy of jurisprudence. The chief function of the comparative method is to facilitate legislation, and the practical improvement of the laws. I conceive that there is no more important judicial inquiry than this, and from which the laws of our country can derive more advantage when it has been adopted as a part of our legal training and education.

the requisite degrees of relationship. Third. If under the power of any one, such person's consent is necessary; otherwise the marriage was void. If the pater fumilias knew of the marriage and did not oppose it, his assent was presumed. If either of the parties were impuberes at the time of the marriage, though then invalid, it became valid by living together with the intention of being married after puberty was attained. This form of marriage was strictly confined to Roman citizens, those to whom the jus connubium was conceded. The connubium is defined by Ulpian (Ulp. Frag., §3) as the capacity of marrying (connubium est uxoris jure ducendæ facultas). When, therefore, there is no impediment between two persons to marry, they are said to possess the connubium. The matrimonium non justum did not confer the patria potestas and other important civil rights. There was no connubium in case of marriage between Latini or foreigners, or between Romans and foreigners; though an equally valid aud binding marriage, it did not confer the patria potestas and other important civil rights. Ulp. Frag., § 4. In ancient times equality of condition was required; and there could not be any marriage between patricians and plebeians. Freedmen were prohibited from marrying the freeborn. The lex Camelcia, A. U. C. 309, proposed by the Tribune Canuleius, abrogated the provisions of the Twelve Tables, which prohibited marriage between the patricians and plebeians; and it was the act of the right of intermarriage between the families of each that was one of the most powerful causes which led to the annihilation of the distinction between the two casts. By the lex Julia, A. U. C. 757, freedmen and freeborn were allowed to marry, subject to certain restrictions as regards alliances with families of senatorial rank, which were afterward removed by Justinian, who allowed senators to marry whom they pleased. Actual marriage was the privilege of the free alone; the union of slaves was called contubernium, that is the union of slaves, or of a slave with a free person. When they were allowed to cohabit, the children born of such a union were regarded as related in blood (cognati), and this relation prevented them marrying if afterward they became free.

Though certain forms of marriage were necessary to bring the wife in manu mariti, they were not essential to the validity of marriage itself; and the wife did not pass under the power of her husband unless she expressly consented so to do. Manus was originally a species of potestus, exerted by the man over the person of the woman. At first the husband exercised the manus over his wife only. At a later period it became the means of transfer without marriage. The original institution of the manus was that of the husband; the woman was brought under his authority, and was said to be in filiæ loco. It was an institution analogous to the potestas, but accompanied by many points of difference, on account of its close connection and dependence upon the marital relation. It was not every husband that could exercise the manus over his wife, but only those who had been married in a strictly legal manner. The potestas over the wife did not always exist in ancient times. It is incorrect to speak of marriage with manus and marriage without it. Marriage first took place, and the manus might or might not follow. When the marriage took place without conventio in manum the wife became simply an affinis, but not an agnati. In relation to her children she was in consanguinæ loco · —a consanguine sister

to her own children. If her husband happened to be under the potestas of his father, she was to her fatherin-law as a grand-daughter, or, as it was expressed, "neptis loco est." The manus gave the husband to a certain extent a right of judge over his wife. He had not the right of life and death, as it was possessed by the father over his children, nor even in a case of adultery unless she was taken in the very act. The husband had no right to sell or dispose of his wife. The jus vendendi was never employed to effect an actual sale; it was only used to obtain the dissolution of the manus. There is not a trace in the Roman law of the actual sale of a wife. As to the "jus noxæ dandi,” when the woman had committed a crime, the husband could not surrender the person of his wife for her crime, but he might give up the property he had obtained through her. After "conventionem in manum," the woman was without property. If she had been sui juris before her marriage, upon marriage the husband became her universal successor. Her property was liable for her debts; and if the husband refused to pay her, there was an "integrum restitutio" to compel him to refund. When the woman died in manum, there could be no succeeding to her estate by inheritance, but when the husband died she had a right of inheritance in his estate as a child, that is to say, as a daughter. When the marriage was celebrated without manus, the Prætor granted the succession "unde vi et uxor." From the earliest period of Rome consent alone was necessary to constitute a lawful marriage. But if the manus was to supervene, then the marriage must be either by confarreatio, coemptio or usus. Confarreatio was the most solemn form by the priest, in presence of the Pontifex Maximus and ten witnesses, in which the cake of wheaten bread was broken and divided between the man and woman as an emblem of the "consoltium vitæ," or life in common.

Coemptio was the more frequent form, and when the Romans wish to indicate the manus, they speak of coemptio. This form of marriage was a sort of symbolical purchase of the wife by the husband in the presence of five witnesses and the libripens or balanceholder who weighed the copper employed in the purchase. Usus was founded on prescription, by the woman cohabiting with the man as her husband for a whole year without being absent from his house three whole nights following each other. Under the new system marriage without manus became the ordinary rule of the common law, so that a married woman could dispose of her property without the consent of her husband; and attained a degree of liberty unknown to most systems of legislation; and contrasted very strongly with those heavy disabilities imposed on wives by the common law of England and Scotland. Servius Sulpicius Rufus gives us an account how betrothal took place in Latium. He that intended to marry a woman stipulated with the person that was to give her in marriage, that he would do so, and on his part promised (spondebat) to marry her. The woman that promised was called sponsa: the man that promised to marry her sponsus. If either party failed to perform their part of the promise, an action lay (actio ex sponsu); and if no good reason could be shown, the judge condemned the guilty party to pay damages according to the value of the match. The contract was terminated by death or renunciation. By the Julian law, if the marriage did not take place within two years, unless for special reasons, the contract of betrothal was at an end. In Rome there was no action

for a mere naked promise of a future marriage; but the same object, however, was accomplished by an Earnest (arrha) of a substantial kind, given at the time of betrothal and forfeited by the party who failed to carry out the promise. Impotency, diversity of religious sect, unchasteness in speech or action, and extravagance, were sufficient grounds for breaking off the match. Polygamy was not permitted by the Romans. Relationship within certain degrees, either of consanguinity or affinity, rendered the parties incapable of contracting marriage. Ascendants and descendants to the most remote degree could not marry. In the collateral line marriage was prohibited between brothers and sisters, including persons so related by adoption, and also in the special case where the parties stood "in loco parentis" to the other as uncle and niece, aunt and nephew. The Emperor Claudius was authorized by the Senate to marry his niece Agrippina, and the example was followed by some Romans; the practice was suppressed by Constantine. Marriage between cousins-germain which had for sometime been prohibited, was declared lawful by Arcadius and Honorius. Degrees prohibited in consanguinity were also prohibited in affinity, which is the connection arising from marriage between one of the married persons and the blood relations of the other. Under Constantine, who abrogated the ancient law, marriage was prohibited with the widow of the deceased brother, and the sister of a deceased wife. These rules as to forbidden degrees have been substantially adopted both in England and Scotland, except that they do not recognize adoption. In the Code Napoleon, articles 161, 162 and 163, the prohibitions are thus expressed. In the direct line marriage is prohibited between all ascendants and descendants, whether lawful or natural, and persons connected by affinity in the same line.

In the collateral line marriage is prohibited between the brother and sister, whether lawful or natural, and persons connected by affinity in the same degree.

Marriage is also prohibited between uncle and niece, aunt and nephew. Some marriages were prohibited by the Romans on the grounds of public policy. Governors of provinces were not allowed to take wives from the territory under their administration. Guardiaus could not marry their wards, or give them in marriage to their children. In the later period of the Empire Christians were not permitted to marry Jews. It is sometimes said that marriage is the foundation of family relationship and family rights; but Van Vangeron and other jurists are of opinion that this is not correct. The Patria Potestas seems to be the root of family relationship. The modern civilians held that marriage itself is not strictly a juridical relation, but has acquired this characteristic by reason of its great importance and wide-spread influence which it exercises on all the conditions of social life. Pestel says when we consider and weigh, and examine, even without the least superstition, the nature, the object and the consequences of marriage, we cannot help wondering how any person could fall into the error of classing it among civil contracts.

From the very earliest times of Rome the monogamic principle, which still prevails in the modern law, has been fully recognized; namely, that one man should be joined to only one woman. In ancient Rome, until the time of the Emperor Justinian, concubinage was permitted, but regulated, however, by the same principle. It was expressly

recognized by the Lex Papia Poppaa. In legal concubinage the monogamic principle prevailed. The concubine was never an uxor nor a materfamilias, she remained in the same rank, sustained the same family relations after she became a concubine as before. The wife entered into the dignity and rank of her lawful husband. The children of a concubine were spurii in the most extensive sense of the term. They were liberi naturales, had no legal father, but only a mother, sine patri sunt. The man who had begotten them was bound to provide alimony for them, and this marked the distinction between the spurii, in the strict sense of the term, and the liberi naturales. Concubinage was licita consuetudo long after Rome became Christian. We find titles in the digest referring to this relation of the sexes. It was forbidden in the East by Justinian in his Novella 91, and in Germany by the Reichs Polizei, ordnung parad 1567 (title 26).

The Roman law proceeded upon the principle that marriage did not alter the property relations of man and wife, but it did not carry the doctrine of separation of goods, nor the dotal system, to the utmost limits; for it only extended the privilege subject to certain limitations as regards the rights of property after marriage. Opposed to this principle is the doctrine of the community of goods which has been embodied in the judicial system of France, Holland and the greater part of the German empire, and some other countries -a principle no doubt originating in the customs of the ancient Teutonic races that overran and conquered Europe. The Code Napoleon gives the amplest expression to this law in the six sections contained in the chapter on the laws of marriage. These six sections express the common law of France, the Lois Contumiers of the Franks. In juxtaposition to this law is that of the Régime Dotal, which has all but literally adopted the rules of the Roman law. In dealing with this question, as a part of the modern Roman law, it must not be forgotten that the codes of those countries, that have incorporated the civil law with their juridical systems, have modified the rules relating to marital relations; but they have not materially affected their principles. The precepts of the Roman law, as regards family relations and marriage, may be studied as a sure guide to the right appreciation of the juridical doctrines upon which the modern law has been established.

According to the laws of the Lombards, the parties to a marriage must be of full age, females twelve, males fourteen. By the Ripuarian and Frison laws, a freeman who married a slave lost his liberty; but a Lombard could marry his slave, first making her free. A widow could not marry until one year after the death of her husband. The first part of the ceremony of marriage amongst all Barbarians was espousals. Custom, or the laws, appointed to every woman a guardian, without whose consent she could not be obtained in marriage. Amongst the Anglo-Saxons, marriage was treated as a purchase of the female from her legal guardian; she could not be married against her consent. The contract of espousals was made with the guardian by the intended husband paying, or agreeing to pay, a sum of money as the nuptial price of the female, or valuables for the guardian's benefit, and all the relations of the female were entitled to it. A ring was frequently given, arrharum nomine, in earnest of the bargain. The amount of the nuptial price was sometimes fixed by law, but more commonly depended on the agreement. By the law of the Saxons the price