acts of the other members of the Family, but could not legally be made worse. 186. The English Law does not go so far as the Roman in this respect; but still invests the Father with considerable Rights over his Son. He may correct him in a reasonable manner. He may delegate part of this parental authority to a Tutor or Schoolmaster, who is in loco parentis*. He has the benefit of his children's labour so long as they live with him. He has, however, no power over any property which the son has acquired, except as Trustee or Guardian; but on the other hand, the Son, while under age, is not capable of acquiring any property, by Contract made independently of his father. The Rights with which the head of the Family was thus invested carried with them corresponding obligations. As we have already stated (182), the husband is bound to provide his wife with the necessaries of life, and also to pay her debts. Also, the Father is, by the English Law, bound to provide maintenance for his own offspring. By the Roman Law this obligation was reciprocal. "Si quis a liberis ali desideret, vel si liberi ut a parente exhibeantur, judex de eâ re cognoscet.' The Head of the Family was the Supporter, Protector, and Director of all the other members. The Education of Children, so that they may, in their turn, become good members of new Families, and good Citizens, is contemplated as an important object by most legislators; but is, in a great mersure, left to the unforced care of parents. * Perhaps it would be more correct to say, that the Schoolmaster's authority is not delegated from the parent, but analogous to the parent's. It depends on some of the same reasons; and exists where there is not a parent to delegate, as well as where there is. + Dig. xxv. 3. 5. If any one requires to be supported by his children, or if children require to be maintained by the parent, the judge shall take cognizance of the matter. To neglect this office, is rather the omission of a Moral Duty, than the violation of a Legal Obligation. 187. The Family Affections, and the Moral Sentiments connected with them, make both men and women look with grief and indignation upon the violation of female chastity, in those who are under their care and protection. The woman who gives up her person to any other man than her husband, is conceived to be destitute of the proper affections and sentiments of a wife; and therefore, unfit for the proper destination of a woman. To seduce her to this condition, is to bring her to disgrace, and to make her marriage with another man almost hopeless. To force her person, brings upon her some portion of this disgrace and calamity, in addition to the injury which is involved in all violence. The laws of most countries recognize these Wrongs against Female Chastity, Rape and Seduction. Thus by the Jewish Law*, the Man who forced a betrothed woman was to be put to death. If she was not betrothed, he was to make her his wife, without being allowed afterwards to put her away. The Roman Law justified homicide, when committed by the woman in defence of her chastity; or by a man, in defence of his relatives, when force of this kind was offered. The English law, likewise, excuses a woman killing a man who attempts to ravish her; and the husband or father is justified in killing a man who attempts a Rape upon his wife or daughter. The Roman Law, in the time of Justinian, refused to make any distinction in the guilt of the violator of chastity, whether the woman consented or nott: "Si enim ipsi raptores, metu vel *Deut. xxii. 25, &c. + Cod. Ix. 13. If through fear, and in virtue of the severity of the punishment, seducers abstain from such offenses, no woman, willing or unwilling, will have an opportunity of transgressing. The will of woman is itself forced by the arts of the ravisher. VOL. I.-M atrocitate pœnæ, ab hujusmodi facinore se temperaverint, nulli mulieri, sive volenti sive non volenti, peccandi locus relinquetur: quia hoc ipsum velle mulierum ab insidiis nequissimi hominis qui meditatur rapinam, inducitur.’ 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 offence is a destruction of the woman's moral being. But the English Law has no direct punishment for the moral offence 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 offences 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 posses⚫sion 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 patria potestate), were his proper heirs (hæredes sui), and divided his possessions among them; all other heirs were hæredes extranei. In England, In England, on the establishment 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 therefore after the 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 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 Chartat: 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 *Dig. xxvIII. 1. C The Right of making a Testament i a Right by Law. + Bl. IV. 423. + Ib. 11. 12. |