19.24. 24. The same Subject continued.
The laws which gave the right of
tutelage to the mother were most attentive to the preservation of the
infant's person; those which granted it to the next heir were most
attentive to the preservation of the state. When the manners of a people
are corrupted, it is much better to give the tutelage to the mother.
Among those whose laws confide in the manners of the subjects, the
guardianship is granted either to the next heir or to the mother, and
sometimes to both.
If we reflect on the Roman laws, we shall find that the spirit of
these was conformable to what I have advanced. At the time when the laws
of the Twelve Tables were made, the manners of the Romans were most
admirable. The guardianship was given to the nearest relative of the
infant, from a consideration that he ought to have the trouble of the
tutelage who might enjoy the advantage of possessing the inheritance.
They did not imagine the life of the heir in danger though it was put
into a person's hands who would reap a benefit by his death. But when
the manners of Rome were changed, her legislators altered their conduct.
"If, in the pupillary substitution," say Gaius
[29]
and Justinian,
[30]
"the testator is afraid that the substitute will lay any snares for the
pupil, he may leave the vulgar substitution open,
[31]
and put the pupillary into a part of the testament, which cannot be opened till
after a certain time." These fears and precautions were unknown to the
primitive Romans.
Footnotes
[29]
"Institutes," lib. ii. tit. 6, section 2. Ozel's compilation, Leyden,
1658.
[30]
Ibid., lib. ii., De Pupil. substit. 3.
[31]
The form of the vulgar substitution ran thus: "If such a one is
unwilling to take the inheritance, I substitute in his stead," &c.;
the pupillary substitution: "If such a one dies before he arrives at the
age of puberty, I substitute," &c.
