the civil law sustains them. But to show what the civil law does declare, let us turn to the Pandects.

"Maximum autem cogitur pater hereticus liberos orthodoxo in matrimonium collocare cum orthodoxis, et eis dotem aut donationem propter nuptias sappeditare."-Lib. xxiii., Tit. ii.

"Regulariter ut justæ sint nuptiæ, requiritur tam virum quam mulierem, qui eas contrahunt, esse cives Romanos. Tamen ex privilegio, interdum populus lege singulari concedebat, quibusdam jura connubiorum cum civibus Romanis: cujus rei exemplum vide apud Liv. xxxviii., 36.

If it was thougnt necessary for the protection of society, in these early times, and by pagans, to recognize and enforce the religion connected with marriage, what should be thought now of such a requirement under a Christian dispensation? How far both the Old and New Testaments go in the recognition of marriage as a command from God, it is not essential in this paper to inquire. This part of the matter may be waived, and yet on every principle regulating the welfare of men in life, the argument in favor of a rigid observance of every rule specified in the positive law, would stand unanswered. The consequences that would result to society from an adoption of the Alabama decision would be, that marriage, instead of being regarded as a highly solemn and important engagement, as in the forcible idea of the civil law, the union of man and woman, and the partaking of one lot, rendering all divine and human rights common between them during life, it would be a careless civil contract, a boarding and bedding together, per agreement merely; unconnected with any higher moral or religious sanction, than the purchase, at a stipulated price, of a piece of flesh from a butcher's stall. That to carry out the principle of the rule, the law touching the remedy for breach of a promise of marriage would become obsolete; for every seduction of an unmarried female, on a promise of marriage, would be raised from the position of a seduction to a legal marriage, embracing consent, the only requisite of a marriage, and thus the most sacred tie of life be rendered equally efficacious and equally venerable, whether perpetrated at the altar, accompanied with all the religious ceremonies of the church, or beneath the lascivious sheets, and amid the lustful promises of the seducer. If the law is truthful in the Alabama decision, this latter must unquestionably result.

Let it be remembered, however, that our purpose is not so much to complain of this decision, as to ask if it be truly law. While it occurs to us that it would be impolitic on the part of the courts, in construing the positive law, to abrogate any of its smallest requirements with regard to this, to society and to individuals the most important of all engagements; and while, also, there seems to us some inconsistency and want of understanding as to law, and how far, in this country, it is to be viewed as a merely civil, or a religious and civil contract, still we perceive that by the law as declared, the women of the country are to be immensely the gainers. For, certainly, if neither the license nor the officiating functionary be essential, and the consent of persons of legal age be the only requisite, the Lotharios of the country must be careful that their love-tales and ardent promises prove not more than mere poetic licenses. In truth, we

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would rejoice for the sake of defenceless and confiding woman, so long and so often the prey of man, and of her confidence in his pledges, to see every case of seduction, where it was the result of a promise to marry on the part of the man, declared a valid and legal marriage, with liberty to the wife to seek a divorce for the fraud, but leaving it binding as a marriage on the rude violator of female inno

cence.

Art. V. ELEMENTA JURIS CIVILIS.

[CONTINUED.]

HEINNECCIUS, Section 23.-Finally, on the same principle it readily appears, 8th, that when the meaning of the law is entirely deficient, the law also, is deficient; but, 9th, that the law does not lose its vigor, if the meaning be deficient in certain cases only-for example, though a youth before he has a beard (be of mature age) be discreet, he will not be able to make a will any more on that account, than other youth of the same age.

Sec. 24. Since it is, moreover, the business of the jurist also to apply laws to the cases which arise, it follows, 1st. That he who carries into the Forum undigested opinions, and realizes gain by overturning the fortunes of others, is not a jurist, but a Rabula; not a lawyer, but a pettifogger. 2d. That he keeps the name of jurist, or one skilled in the law, who is trustworthy for giving an opinion, for pleading, for taking care that no evil results, and for judging. 3d. That such a one is truly the priest of justice, the oracle of his state, the honor and the ornament of peace. 4th. That they are absurdly foolish, who consider every one the worse Christian, the more he is skilled in law: Thus, truly, no one will be a Christian, except him, who having cursed the study of the laws, with Tertullian passes from a state of refinement to one of barbarity.*

Title 11.-Concerning the origin of Law; and of Magistrates; and concerning the succession of jurists.

Sec. 25. Thus far we have treated of law in general. Now we treat concerning its origin; Pomponius being our guide, whose fragment Reinoldus has learnedly vindicated from the suspicion of falsification; and that most excellent man, Bynkershoek, from various reprehensions of the learned.

Sec. 26.-But since Civil Law, concerning the origin of which we are now treating, must be suited to the condition and benefit of the commonwealth; and the Roman Republic underwent, for the most part, three changes; there ought to be also as many ages and periods of law. For in the beginning, the city obeyed kings during 224 years. Then, when they were expelled, liberty fluctuated between the almost perpetual discords of the nobles and the common people.

The words here rendered refinement and barbarity, are in the original Toga and Pallium. The Toga was the Roman gown; the Pallium the Greek blanket; and among the Romans those who used the Pallium instead of the Toga were looked upon as barbarians or Greeks.

Lastly, no one opposing, the Cæsars drew all things to themselves, being absolute monarchs, although they were without the name.

Sec. 27. As Rome was a colony of the Albans, but colonies religiously maintained the sacred institutions and manners of their ancestors, it is very probable that the first colonists brought Alban laws to Rome. Hence, at the first, the Roman people had begun to manage without fixed law, with a certain law written, for example, and all things, those which the good of the republic seemed to extend beyond the customs of their ancestors, were governed with force by the kings-Romulus, for a short time, and T. Tatius, his colleague, afterward.

Sec. 28.-Afterward Romulus divided into thirty curiæ or wards, the people to whom he had left the power of making laws, of creating magistrates, and of determining concerning peace and war; and thus, he enacted for the people certain laws relating to the curiæ.

Sec. 29.-And the succeeding kings made laws. For Numa gained over the people by religious ceremonies, and some things were devised by Tullius, and by Ancus; but especially was Servius Tullius the establisher of laws, which even kings obeyed. All these things did Tarquin the Superb abolish.

Sec. 30.-The kings having been expelled by the Tribunicial law of L. Junius Brutus, tribune of the royal body-guard, their laws also began to grow into disuse, and the citizens began again to act more from unsettled law, and from custom, than according to any enacted statute; and this the people suffered for near sixty years. So that the republic was not then without all law indeed, but without written law; for the laws of the kings not having been removed from use, but being observed in the place of established customs, were afterward transferred, for the most part, to the twelve tables.

Sec. 31. From this time, not under the government of Tarquin the Superb, but when the kings were driven out, C. Papirius united the laws of the kings to the sacred law of Numa, and wrote it in his sixth book; whence originated the Papirian law, on which there was a well written commentary of Granius Flaccus.

Sec. 32. In the mean time, the republic being unsettled between the wishes of the aristocracy and the common people, and neither yielding to the other the power of making laws, at length, it pleased them to send to Greece three men to seek laws from thence. Therefore, such being procured, which at any time came in their way worthy of regard, the Decemvirs having been appointed for the sake of making laws, and following the advice of Hermodorus the Ephesian, they compiled at first ten tables, to which, afterward, they added two others. And these having been approved by the votes of the people, in so great a mass of laws piled upon other laws, were the fountain of all public and private laws.

Sec. 33.-For from them, those skilled in the law, afterward, by interpreting, drew out very many things, which were not manifestly contained in the words. They also, by the disputation of the Forum, brought to a certainty many controversies of law.. All which things, in a more strict sense, come under the name of civil law.

Sec. 34.-The same jurists are the authors of the ACTIONS of the

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law-that is, 1st, of the rules, and forms of words with which men debated among themselves-2d, of certain formalities, by which the actions of voluntary jurisdiction" in the presence of the magistrate were to be set forth.

Sec. 35.-From these differ, in some degree, the ACтst made according to law likewise set forth in a formal manner, but not before the magistrate. But in that the condition of each is equal, because they admit, 1, neither a day, nor 2, choice, nor 3, an agent, nor 4, can they be made a second time, and 5, they cannot be set forth by a pupil without authority of the tutor.

Art. VI. ON THE ABROGATION OF TREATIES BY WAR.

THE following is an extract from the fourth edition of the History of Oregon and California, now in the press, from the pen of Robert Greenhow, Esq., translator and librarian to the Department of State of the United States. It is devoted to the argument of a point of international law, which has been strangely neglected by writers on that branch-"how far a war destroys the provisions of a treaty."

The nature and extent of general treaties are clearly and forcibly exhibited, and the grounds assumed supported by arguments of convincing power. All such compacts as have an object determinate and complete in themselves, are shown to be exempt by their nature from any of the changes incident upon a state of war and from the character of perpetuity which they acquire not abrogated by its formal declaration. This we consider as fully established by the argument.EDITOR.

The alliance between Great Britain and Spain proved so disastrous to the latter, that she was obliged, in July, 1796, to make peace with France, and in October following, to declare war against her former ally, Great Britain, which lasted, with the intermission of two years of doubtful relations after the treaty of Amiens, until 1809. From the moment of this declaration of war, the Nootka Convention ceased to have effect, agreeably to the universal rule of national law, observed by all civilized states, that all treaties expire on the commencement of war between the parties to them. From that moment all the privileges allowed, and restrictions imposed, by the con vention, were terminated, and each nation was left at liberty to pursue its own course with regard to the seas and territories to which that agreement related. Spain might again claim the exclusive navi gation of the Pacific and Southern Oceans, and the exclusive sovereignty of the parts of America bordering on them; and Great Britain might again assert her right to sail in any open sea, and to occupy, and possess in sovereignty, any vacant coasts.

NOTE. On this question of national law and usage, it will be convenient here to present a few observations.

A treaty or convention is a record of engagements between two or more na* Jurisdiction, in the Roman law, signified the functions of certain magistrates. Hence, by voluntary jurisdiction is meant a jurisdiction over certain acts, which became valid when done with certain forms before the magistrate, such as adoption and manumission, and which were voluntarily submitted. It is opposed to contentious jurisdic tion, which was exercised over persons contesting among themselves.

The word acts (actum) had a technical meaning in the Roman law, signifying certain things done; actus legitimi were defined by Godefroy generally, all such public and private affairs as were submitted to certain legal and solemn forms.

tions, to perform, or to abstain from, certain acts, under certain circumstances of time, place, and occasion, as specified, either directly or implicitly, by the terms of the compact; and as these engagements are supposed to be for the advantage of one or more of the parties, so are they necessarily understood to subsist only during peace between them, unless otherwise especially declared. (Vattel, Book 3, chap. 10, sec. 175.) A nation, when resorting to war, by the same right employs every means in its power to distress its enemy and to benefit itself, without regard to any engagements not specially referring to a state of hostilities, or to any restrictions as to the means employed, except such as it may choose to pbserve, from respect to the dictates of humanity or the opinion of the world.

War between civilized nations commonly ends by consent of the parties, expressed in a treaty of peace. The mere declaration that there shall be peace, however, establishes nothing more than that hostilities between the parties shall cease from that moment: it merely reduces them to inertia; the restoration of conquests, the evacuation of territories invaded, even the release of prisoners, must be made the subjects of separate express stipulations. In all points for which provision is not thus clearly made, each party may legally remain in the exact position held by it at the moment of concluding the treaty of peace. (Vattel, Book 4, chap. 2, sec. 19, 21.) That such is the practice of nations, every treaty of peace will show; and none more unequivocally than the two between Great Britain and the United States.

The restoration of peace, therefore, does not of itself produce necessarily a revival of engagements existing when the war began. As the peace is supposed to be made with the free will of all the parties, so must the revival of former engagements, as well as the contraction of new ones, be regarded as made with the entire consent of each; and it is difficult to conceive any class of agreements, the revival of which may not, after a war, be considered by some party as deleterious to its interests. It is consequently clear, that some general understanding should exist; and that treaties of peace should, in order to answer their end, show unequivocally what previous compacts are to be restored to force-all others being regarded as null-or which are to be annulled, all others being revived. To leave such points undetermined, would be only to open the way for a speedy rupture of the peace.

Of the two alternatives thus presented, the simpler rule is evidently that which leaves extinct all engagements made previous to the war, except those restored to force by the specific terms of the treaty of peace; and that this rule has been pursued invariably by civilized nations ever since national law was first defined and reduced to principles, all the treaties of peace made within the last two centuries prove beyond question. Thus the treaties of Utrecht, in 1713, of Aix-la-Chapelle, in 1748, of Paris, in 1763, and of Versailles, in 1783, distinctly declare what treaties existing previous to the war, ended by each compact, are to be renewed, either wholly or in part, unconditionally or with exceptions; all others being ipso facto considered null and void. The French revolution so completely changed the face of Europe, that the plenipotentiaries at Amiens, in 1802, found nothing in previous treaties which could not be expressed more easily by new stipulations; and the treaties of Amiens were in their turn considered as nearly obsolete in 1814, when those concluded at Vienna again referred to provisions made at Utrecht a hundred years before.

Some eminent writers on national law have, however, attempted to establish a particular class of treaties, to be called Transitory Compacts, including those for cessions or exchange of territory, settlement of boundaries, and other objects, which are to be regarded as "perpetual in their nature, so that, being once carried into effect, they subsist independent of any change in the sovereignty and form of government of the contracting parties; and although their operation may in some cases be suspended during war, they revive on the return of peace, without any expressed stipulation." (Wheaton's Elements of International Law, Part 3, chap. 2, sec. 7. See also Marten's Precis du Droit des Gens, Book 2, chap. 1, sec. 5.)

With due respect to those high authorities, the distinction thus proposed seems to be unnecessary, if not embarrassing, and to rest on a misapprehension of the nature of a treaty. The class of transitory compacts would embrace only those which are supposed to be intended to settle a question definitively by some specified act or acts, and do not acquire this character of perpetuity until they have been thus carried into effect. But a treaty is only a record of engagements;