CHAP. XXIV.: 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. Amongst 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 relation 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 Caius Institut. lib. tit. 2. 6. §. 2. Ozel’s compilement, at Leyden, in 1658. ^†699 and Justinian Institut. l. 2. de pupil. substit. § 3. ^†700, the testator is afraid that the substitute will lay any snares for the pupil, he may leave the vulgar The form of the vulgar substitution ran thus: If such an one is unwilling to take the inheritance, I substitute, in his stead, &c. The pupillary substitution: If such an one dies before he arrives at the age of puberty, I substitute, &c. ^†701 substitution open, 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.