188. The English Law punishes Rape with death, but makes it a necessary ingredient in the crime that it be committed against the will of the woman. It is sometimes assigned as a reason for the capital punishment, that the offense is a destruction of the woman's moral being. But the English Law has no direct punishment for the moral offense of Seduction, as we have seen that it has none for Adultery. These crimes are punished indirectly, as Loss inflicted, on the Father and the Husband. In the latter case, the Husband may receive Damages from the Adulterer, for the Injury done him: in the case of Seduction, the Father may recover Damages for the loss of his daughter's Services during her pregnancy, by the act of the Seducer, per quod servitium amisit. The necessity of taking this course for the remedy of these wrongs, is explained, by considering that the Common Law of England has, for its main objects, the security of person and property; and therefore, does not undertake to treat offenses according to their moral depravity, or the grief and indignation which they produce.

189. According to the ancient legal views of the Family, in most nations, as we have seen in the cases of the Roman and the English Law, the possession of property in land is an attribute of the Family, rather than of the individual; the right of the wife and children being merged in, or derived from, that of the Head of the Family. Following the same view, the Law directs that, on the death of the Father, the land shall descend to the children: for they then, in their turn, one or more of them, become Heads of Families, and take the place of the Father, as members of the State. Accordingly, in the Roman Law, when the Father died, those of his children who were then under his power (in patriâ potestate), were his proper heirs (haredes sui), and divided his possessions among them; all other heirs were hæredes extranei. In England, on the establish

ment of the Feudal Constitution, by William the Conqueror, the law of primogeniture was established, by which Lands descended to the eldest son alone. In this view, the Property was considered as a Fief to be held by military Service; and the whole property was assumed to be a proper means of supporting the dignity of the holder. The younger sons were supposed to be provided for by the eldest, and by their own exertions in the various professions which were open to them, military, civil, ecclesiastical, and mercantile. It is consistent with the view which this Rule assumes, that the Rule was not extended to personal Property; for such property was not held as a Fief. In this, no primogeniture is allowed, all males and females of equal degree sharing equally.

If direct and proper heirs failed, the same view, of the transmission of Property in the Family, led to Rules of Law which determined the persons to whom it was to be given; but upon these Rules, and their differences in different states, we need not now dwell.

190. In most Systems of Law, though the Law assigned a Rule for the disposal of a man's property after his death, the proprietor has been allowed to vary this disposal, partly or entirely, on declaring his intention before proper Witnesses. Hence, the Declaration so witnessed is called Testamentum in Latin, Will in English. The ground of this Right of the Testator is, that a man, previous to his death, may dispose of his property, and may exercise an authority over his children; and that the continuity and order of the Family were supposed to be preserved, by allowing this Right to operate through the time of his death, and there fore after that moment. Yet the Right of the Testator, like the other Rights of Property, is limited by Rules of Law. The Roman Law says: "Testamenti factio non Dig. xxvIII. 1. 3. The Right of making a Testament is a Right

by Law.

privati sed publici juris est." In the early times of Rome the citizens made their Wills at the Public Assemblies (Calata Comitia), although afterwards, other modes of procedure were introduced.

191. The Right of disposing of property by Testament, was not unlimited. If a man had a Son under his power, he was obliged either to make him an heir, or to exhæredate him, expressly assigning a reason: and even if other near relations, who would without a Testament have inherited, were passed over in silence, they could claim a portion of the property: the Testament in such a case was called inofficiosum Testamentum, as being made non ex officio pietatis.

192. In England, the power of disposing by Will of a portion of a man's moveable property was recognized by Magna Charta*: but until modern times, a man could leave only one-third of his moveable property away from his wife and children. No Will of lands was permitted till the time of Henry the Eighth; and then, only of a certain portion nor was it till after the Restoration of Charles the Second, that the power of devising became so universal as it is at present. By the English Law, a man's Heirs were contemplated as interested in his property, as well as the man himself. Property, from this attribute of being inherited, was called Hereditaments. Hence it was held, by the Lawyers, that no freehold interest in land could be conveyed, without the use of the word Heirs. If Land be given to a man for ever, or to him and his Assigns for ever, this vests in him but an estate for life. This limitation was founded upon a view borrowed from the Feudal System, according to which the estate was given in consideration of the Tenant's personal qualities, to be held by personal service. The limitation was upheld by a maxim of the Roman Jurists: * Bl. iv. 423.

+ Ib. 11. 12.

"Donationes sunt stricti juris, ne quis plus donasse præsumatur quam expresserit."

193. Although at present the proprietor in England has, in general, the Right of disposing of the Estate by Will, there is an exception to this, in the case of entailed Estates. This power of entailing was established by the Statute of Westminster, the Second, (in the thirteenth year of Edward I.), which is commonly called the Statute De Donis Conditionalibus. This law gave the Proprietor a power of transmitting to his Heirs the enjoyment of the Property, without their having the Right of transmitting it to any one, except the Heirs who should come after them. Property, thus limited, was termed Feudum talliatum, a curtailed fief, feetail; from which expression the word entailed comes.

194. Besides the power of disposing of the whole Estate, both the Roman and the English Law allow the Proprietor the power of giving Legacies (Legata) to special persons. But all such Bequests are limited by the condition, that the Testator's Debts must first be paid.

195. There are other distributions of property, which, according to the laws of various countries, arise out of Marriage; as the Dowry, or Dower of the Bride, (Dotarium, Douaire), in the Roman Law, Dos: and the Jointure of the widow; (Junctura, a joint possession). On these it is not necessary here to dwell.

196. As the Law, in the general case, directs that the heir should receive the benefit of his Father's property (Patrimonium) after his death, so it also directed that he should, if it were necessary, receive the benefit of his Father's guidance. In the Roman Law, the Father had power to appoint, by Testament, a person to exercise parental care and responsibility for his son or daughter after his death, so long as the child was of unripe age (impubes). This Guardian was called Tutor, or Curator; the child was his Pupillus. The

Tutor had the care of the person, the Curator of the estate. Without the sanction of the Curator, the Pupillus could do no act by which he diminished his property. But the care of the person of the child belonged, in a great degree, to the Mother, as the care of the property did to the Curator. When the Father did not appoint a Tutor by his Will, the Law of the Twelve Tables gave the Tutela to the nearest relatives; "Legitimæ Tutelæ lege XII Tabularum agnatis delatæ sunt, et consanguineis; item patruis: id est, his qui ad legitimam hæreditatem admitti possunt: hoc, summâ providentiâ, ut qui sperarent hanc successionem, iidem tuerentur bona, ne dilapidentur." The view of the ancient English Law was quite different. It also gave a Guardian to a Minor; but the Guardianship devolved upon the next of kin who could not inherit the Estate. The Law, it is said†, judges it improper to trust the person of an infant (Minor) to a person who may by possibility become heir to him; that there may be no temptation, nor even suspicion of temptation, for him to abuse his trust.

197. An English Law of more modern times, (the 12th year of Charles II,) allows the Father to appoint a Guardian to his Son, by Deed or Will, so long as he is a Minor, that is, under the full legal age. This age is in England twenty-one: Scotland agrees with England, both probably copying the old Saxon Rules which prevailed on the Continent. By the Roman Law, a youth could perform certain legal acts at the age of fourteen; but up to the age of twenty-five, he could not dispose of property, without being supported by the Authority of a Curator‡.

*

Dig. xxvi. 4, 1. Guardianship according to Law is by the Twelve Tables given to the father's relations and to relations by blood, that is to those who may have a legal claim to the inheritance. And this was prudently done, that those who are allowed to look for the succession may see that the estate is not dilapidated.

+ Bl. 1. 461.

Dig. IV. 4. 1.