Chapter 4-5 of Part 1 Section 2

Guardian and Ward, Domestic Punishments

September 9, 2015

When a father dies leaving his children young, they should be taken care of. Even in the times of exposition, when an infant was some time kept, it was thought cruel to put him to death=

  • the child was destitute
  • there were then no hospitals or places of charity=
    • it must therefore be put into the custody of some person.

The law fixed the father’s side nearest relation to care for the child.

In an early age, the maintenance of the child was all that was to be taken care of, for=

  • there were no estates to manage, and
  • the mother went back to her father’s family.

This guardianship terminated when the child was about 13 or 14 years old when it could take care of itself.

But when men came to be possessed of estates, though he might be supposed capable of shifting for himself about that age, yet he could not manage an estate.

It became necessary to retain him in pupillarity more than 14 years.

By praetorian law, at that age he was allowed to choose his guardians or curators.

A curator can do nothing without the pupil’s consent.

A guardian can act without his consent.

But he is accountable to his pupil for whatever he does during his minority. At first lunatics and idiots were almost the only persons who had guardians. It was generally declined because it was disgraceful to have one.

Afterwards, the law made all acts of the pupil invalid until he was 21, without the consent of his curators. The nearest relation by the father’s side is often next heir. It was reckoned improper to trust the person of the son with him.

The English law carried this so far. If an estate was left to the son in his father’s lifetime, he was not trusted with him.

By our law, the care of an estate is entrusted to=

  • the next heir, as he will probably take best care of it, and
  • the heir to a more remote relation, who will take best care of him, as he cannot be benefited by his death.

Chapter 5= Domestic Offences and their Punishments

Some offences in families have peculiar punishments.

Infidelity of the wife to the husband is punished with the greatest ignominy. In the husband, it never was punished with death, nor in the woman unless where the greatest jealousy prevails.

It would be ridiculous in our country to bring a woman to the scaffold for adultery.

  • Forcible marriages and rapes are generally punished with death.
  • Bigamy is punished capitally as it dishonours the former wife.

There is the closest connection between persons in a family.

If the wife kills the husband, it is considered as a sort of petty treason.

The punishment by the English law is burning alive. This is the same punishment if a servant= kills his master or makes an attempt on him.