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 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. L. 461.

Dig. Iv. 4. 1.

198. All that has been said of the Rights and Obligations of a Man with regard to his Wife and Children, apply only to such wife and children as the law recognizes : to his lawful wife, and his legitimate children, born of a lawful marriage. What a Lawful Marriage is, the Law must define.

Marriage is a Contract; and though it is, in most countries, a Contract of a special character, solemnized with peculiar ceremonies, it must be, in many respects, governed by the general Rules of Contracts. Thus, the persons marrying must be of sound mind; of the age which the Law considers as mature; and free from other legal impediments, such as an inconsistent previous Contract. They must also understand each other to intend that perpetual union which Marriage implies.

199. By the Roman Law, the essence of Marriage was Consent; the Consent "both of those who come together, and of those under whose power they are." This Consent was to be manifested by some public act; for instance, Declaration before friends, and afterwards continued Cohabitation for a year. This mode of marriage was Usus.

But ancient custom had handed down and sanctioned other forms of marriage, confarreatio and coemptio, by which the woman became part of the man's household. She was then said in manum viri convenire.

200. By the old Law of England*, a Contract made per verba de præsenti, by words in the present tense, was a valid marriage: thus, I take thee M. for my husband: I take thee N. for my wife. The same is still the case by the Law of Scotland. Also, a promise of marriage per verba de futuro ;-I will marry thee;-became a valid marriage by cohabitation; in the same way in which a contract concerning goods became valid by the delivery of the goods.

VOL. I.

* Bl. 1. 439.

I

By later English Statutes, marriages in England were, for many purposes, not allowed to be valid, except such as were celebrated after due notice (Banns or License) in some parishchurch or public chapel; and by a person in Sacred Orders. But this restriction has since been enlarged, so that the religious part of the ceremony is no longer necessary.

201. With reference to the grounds on which Marriage has very generally been accompanied with a religious sanction, we may remark, that the Conjugal Union is contemplated, not as a mere Contract for Cohabitation, but as an engagement binding the parties to mutual affection, and to a community of the scheme and ends of life. Hence a mere legal Contract, which must regard actions alone, cannot express its full import. The Sentiment of Duty must be brought into operation, and the appeal to this sentiment belongs to the province of Religion (84).

202. Divorce is the Separation of the Marriage Union. According to the Roman Law, as the Consent and Conjugal Affection of the parties was an essential part of a marriage, their acquiescence was necessary to its continuance. Either party might declare his or her intention to dissolve the connexion; and no judicial decree, or interference of public authority, was requisite in order to carry this purpose into effect. Yet such separations were generally made with some form. As there was Marriage by confarreatio and coemptio, there was Divorce by diffarreatio and emancipatio. Repudium was the rejection of a Marriage promised by Sponsalia (Betrothing), but not completed. The practice of Divorce was afterwards checked by Law (the Lex Papia Poppaa). Under the Christian Emperors it was punished in various ways; but still the power remained, subject to certain forms in its exercise.

203. There is no Law of England which authorizes Divorce. Every particular case must be the effect of a