1. The chief point in this cause is that part of the decree which determines the children shall be committed to the charge of the father. It is now said the *563chancellor had no jurisdiction over the subject matter, or if he has, that it can be exercised upon petition only, and when that object is the sole matter of investigation. The legislation upon the subject, seems to be confined to two acts, both passed at the same session of the legislature, the.one providing for the disposition of the children in all cases of separation, when neither party shall obtain a divorce; the other investing the court of chancery with power, in cases of separation, to determine the same questions with respect to the children, upon the petition of either party. [Dig. 171, §§ 20, 21.] We incline to think these statutes were intended to cover the whole subject matter, as it can scarcely be intended, the power is not given where the parties are actually divorced, and is so where they are merely separated. The first act seems to contemplate the action of the chancellor, Avhen there is an ineffectual attempt to procure a divorce, but the latter extends to all cases where a separation exists, and warrants the court to determine the matter on the petition of either party. When the bill is filed for a divorce, either a vinculo or a mensa et thoro, it is usually preceded by- the actual separation of the parties, and when the ground assigned is adultery, this is the necessary relation of the parties to each other, as otherwise a condonation of the offence will be presumed. We infer, the legislature .considered it as free from doubt, that when the jurisdiction of the chancellor^was extended to divorce cases, the power to dispose of the minor children was a necessary incident of this jurisdiction. It will be remembered, that the jurisdiction over the minor children of a family, has been claimed for courts of chancery by eminent jurists, independent of any statutes, on the ground that the government is the parenspatrce. [2 Fon. Eq. book 2, ch. 2, § 1, note a: De Manneville v. De Manneville, 10 Vesey, 63; Wellesly v. Duke of Beaufort, 2 Russ. 20.] Whilst others assert the exercise of this jurisdiction is a clear usurpar tion of power in that court. [Hargrave’s Notes to Coke oh Litt. 89, a, note 70, $ 16 ; See cases cited in 2 Story’s Eq. § 1327 to 1336.] Whatever maybe the origin of this jurisdiction in England, we think, that with us, whether it is re= ferred to the general powers of chancery, or to the particular statutes to which we have referred, it must be taken as exist-»' *564ing, and that it may be exercised whenever a bill is filed for a divorce, as incidental to the peculiar jurisdiction exercised by the court of chancery, over that subject, when the aid of the court is specifically invoked. Such seems to be the. course pursued in this instance, and the decree is not objectionable for any defect of jurisdiction in this respect. The correctness of the decree upon the evidence itself is not called in question.
2. With reference to. the other matters urged against the frame of the bill, and in the nature of exceptions to the evidence, they are raised in this court without having been taken in the court below. However forcible the objections, might appear, if they arose upon a demurrer to the bill, or upon exceptions to the witnesses, they are entitled to no yreight in an appellate court, as then the presumption is, that both parties and witnesses are free persons of color-, and it arises alike from the allegations of the bill, that the parties were married according to the laws of Alabama, 'and from the omission to take exception in the court below- — where the bill, if defective, could be amended.
We are unable to perceive any error in the decree. Afi* firmed.
