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it did not, for reasons which some writers not; and this rule diminishes the difficulty have attempted to explain, allow the lineal of tracing the descent. ancestors of the purchaser of the quasi The English word heir comes from the ancient feud to inherit it, nor his relations Roman heres ; but the Roman word heres by the half blood, that is, persons de had two significations. It signified either scended not from the same father and the person or persons to whom a testator mother as the purchaser, or any lineal gave his property by testament; or the ancestor of his, but from one of them person or persons who took the property only. Still further exclusions followed of a deceased person in case of his dying from the rule which was afterwards es- intestate. The heres by testament corretablished, that the heir of the fee must be sponds to the English devisee, and to the the heir of the person last seised or pos- person or persons to whom a man be sessed of it, as well as a kinsman of the queaths his personal estate for the purpose whole blood to the actual purchaser. of distribution, that is, his executors. FurAmong the practical consequences of this ther, the Roman law made no distinction rule were the following: that if the child between land and other property, as to of the actual purchaser inherited to him, descent or testamentary disposition. The and became seised, the purchaser's child Roman heres, therefore, who succeeded by another wife could not succeed, be in case of intestacy (ab intestato) filled the cause only half brother to the person last place of the English heir at law, and also of seised ; and that if the father's brother the person who obtains the administration inherited to the son and became seised, of an intestate's personal estate. Again, the mother's brother could not succeed, in the case of intestacy among the Romans, because only related by marriage to the all persons were heredes, and took the person last seised. All these exclusions property in equal portions, who were in and the fictions of the ancient feuds are the same degree of consanguinity to the done away with by the new act, the effect intestate : sons and daughters who were of which is, as before said, to admit in the power of their father inherited among the heirs of the purchaser all his alike, whether the real children of the kindred, both of the whole and the half | intestate or his adopted children; and the blood, and notwithstanding any previous wife who was in the hand of her husband descent to any heir of his. This it does | (in mauu) inherited with the brothers and by enacting that every lineal ancestor sisters of the intestate, for such wife was shall be capable of being heir to any of considered as a daughter. If a man left his issue (§ 6); that any person re children living, and there were also chillated to the purchaser by the half dren of a son deceased, these grand-chil. blood shall be capable of being his heir dren took the share which their father (§ 9), and that in every case descent would have had if living: thus the shall be traced from the purchaser ($ 2). division among the grandchildren in this Still, however, the wife or her kin cannot case was not in capita, but in stirpes. In inherit to the husband, nor the husband fact, the Roman law of succession, in case or his kin to the wife. But the hard-of intestacy, should be compared with ship of these exclusions is at least miti- the English law of succession to the gated by the law of dower and curtesy, personal estate of an intestate, which is which must be read together with the law founded on the Roman law; and it should of descent as one law. The order in not be compared with the English law of which the kindred of the purchaser in- descent, which is of a feudal character. herit is a matter purely legal. The prac- The law of Roman intestacy is stated by tical difficulty in finding who is heir, is Gaius, lib. iii. not the difficulty of understanding the The rule of descent, which makes the law, but in ascertaining the facts upon eldest son, brother, &c. sole heir, exclusive which the law of descent operates. The of the other children, or the other nenew act declares that the last owner of phews and nieces, &c., is well known by the land shall be presumed to be the pur- the name of the law of primogeniture chaser, unless it can be proved that he is | [PRIMOGENITURE. ] It is almost peculiar
to our country, not having been observed see First Report, Real Property Commisby the ancients, and being generally abo- sioners.) lished where it existed on the Continent DESERTER, an officer or soldier who and in the United States of America. For either in time of peace or war, abandons the history of this rule, see Hale's His- the regiment, battalion, or corps to which tory of the Common Law; Sullivan's he belongs, without having obtained leave, Lectures; Robinson On Gavelkind; 2 and with the intention not to return. Blackstone's Com. ; Wright's Tenures ; The word deserter is from the Roman and for observations on its expediency, Desertor, which had various meanings. Smith's Wealth of Nations. The prefer- A soldier who did not give in his name ence of males to females is not so pecu- (dare nomen) when duly summoned to liar. The Jews, Athenians, and Arabians, service might be treated as a Desertor. though not the Romans, gave the inherit- (Liv. iii. 69.) The soldier who fled in ance to sons exclusive of daughters. battle and left the standard was called (For the Athenian law of inheritance, see Desertor, and the punishment was death : Jones's Isæus ; for that of the Jews, sometimes every tenth man was taken by Selden, De Successionibus apud Hebræos.) | lot and put to death. (Livy. ii. 59; PluThis is not however the case among most tarch, Crassus, c. 10.) Desertion among foreign nations at present. The prefer- | the Romans was a general term for ence of the child of the elder son dead in any evasion of military duty: the old the purchaser's lifetime to the younger punishment was death, or loss of citizenson has some interesting historical asso- ship, as the case might be. He who went ciations. The law on this point seems over to the enemy was transfuga or pernot to have been settled till after most fuga, and was always put to death. of the other rules of descent. It was still Under the Empire there were various somewhat doubtful when King John kept classifications of desertion with their his nephew Arthur from the throne by several punishments. (Dig. 49, tit. 15, disputing it. (2 Blackstone's Com. ; Sulli- “ De Re Militari.”) van's Lectures, lect. 14. In Robertson's As the last-mentioned circumstance disCharles V., vol. i. p. 272, there is a curi- tinguishes the crime of desertion from ous story of the trial by combat of this the less grave offence of being absent point of law.)
without leave, it becomes necessary, beThe descent of estates tail (regulated fore the conviction of the offender, that by stat. 3 Ed. I. c. 1) differs from that evidence should be apparent of such in. of fees simple principally in this, that tention. This evidence may be obtained only the descendants of the first donee generally from the circumstances under can inherit; and of these only males which the deserter is apprehended; for claiming exclusively through males can example, he may have been found in a be heirs when the estate is in tail male:' | carriage or vessel proceeding to a place when it is in tail female (a mode of gift so distant as to preclude the possibility which is quite obsolete), only females of a return to his corps in a reasonable claiming exclusively through females. time; or letters may have been found in [ENTAIL.] The limited descent of the which an intention to desert is expressed; estates, together with other qualities of or some offer may have been made by them, makes them the best representa- him of enlisting in another corps, or of tives at present existing (excepting indeed entering into some other branch of the copyholds) of the ancient fiefs.
service. (On the law of descent, as it existed The civil courts of law in this country before the late act, see Sir Matthew Hale's have ever had authority to try offenders History of the Common Law, chap. xi.; accused of desertion ; but they have long 2 Blackstone, Com., chap. xiv. ; Cruise's since ceased to exercise such authority, Digest, vol. iii. Watkins On Descents and they now interfere only in the rare principally treats of curious points, many case of an appeal from the decision of of which have ceased to be important. As the court-martial which is held for the to the reasons for the new alterations, purpose of investigating the charge and
awarding the punishment. The courts- | sidered as soldiers whether enlisted or martial exercise, to a certain extent, a discretionary power in proportioning the A non-commissioned officer or soldier punishments to the criminality in the ac who simply absents himself from his cused; and this power is generally con corps without leave is exonerated from sidered as more likely to promote the the graver part of the charge, if any cirends of justice than the inflexibility of cumstances can be adduced from which the law in civil courts, where, since no it may be inferred that the absence was middle course can be taken between con- intended to be only for a short time. demnation and acquittal, the criminal Such circumstances are, goods of value frequently escapes through the compas- being left behind, the occupation in which sion of the jury, when the punishment the absentee is found to be engaged being which by law must follow a verdict of in its nature temporary, an intention of guilty appears disproportionate to the returning having been expressed, or again, crime. The leniency which has invari- the offender suffering himself to be ably characterised the sentences of courts- brought back without resistance. Simple martial, and the custom of not awarding absence without leave is referred to regithe punishment in its full extent till after mental courts-martial merely, and these a repetition of the crime, sufficiently jus- award the punishment discretionally. tifies the confidence reposed in those The Mutiny Act authorises general courts.
courts-martial to condemn a culprit to The practice of deserting from one death, if his crime should be found to regiment or corps, and of enlisting in an- deserve the extreme punishment; in other other, either from caprice or for the sake cases they may sentence him to be transof a bounty, having been very frequent, ported as a felon, either for life or for a a particular clause has been inserted in term of years, or to serve in the ranks the Articles of War, in order to prevent for life, or for a length of time exceeding this abuse. It declares that any non that for which he had originally engaged commissioned officer or soldier so acting to serve. In some cases, also, corporal shall be considered as a deserter, and punishment is awarded, and an offender punished accordingly; and that any offi- may be sentenced to lose the increased cer who knowingly enlists such offender pay or the pension to which he would shall be cashiered. It is also declared have been entitled if the guilt had not that if any soldier, having committed an been incurred. offence against military discipline, shall Desertion is justly considered one of desert to another corps, he may be tried the greatest offences that can be conin the latter corps, and punished for such mitted by any man who has adopted the offence; and his desertion may be stated profession of arms. The officer or solbefore the court as an aggravation of his dier who has undertaken to assist in the guilt. Any officer or soldier who may defence of his country, and steals away advise or encourage another to desert is from the duties he is called upon to peralso punishable by a general court-mar- form, violates a sacred engagement. tial.
Whether he withdraw through caprice, Absconding from a recruiting party or to escape the privations to which the within four days after having received soldier is occasionally exposed, he sets the enlisting money is also considered as an example of discipline infringed, he dedesertion; and an apprentice who enlists, prives the army of his services at a time representing himself as free, if he after- perhaps when he can with difficulty be wards quits the corps, is esteemed a de- replaced; and while he basely seeks his serter unless he deliver himself up at the own ease, he throws an additional burthen expiration of his apprenticeship. Va- upon his companions in arms. If he grants also, who, pretending to be desert- pass over to the enemy, he becomes the ers, give themselves up as such with a view vilest of traitors; and, should he escape of obtaining money or provisions, are, by the retribution which awaits hin from a clause of the Mutiny Act, to be con- / his injured country, he must submit to
live dishonoured, an exile from its bo as Diplomacy, is a term used to express som.
the acquaintance with ancient documents DESPOTISM. [MONARCHY; Tv- of a public or political character, and RANT.]
especially of the determination of their DEVISE. [Will.]
authenticity and their age. But the adDIFFEREATION. [MARRIAGE.] jective, diplomatic, is usually applied to
DIFFERENTIAL DUTIES. [Tax- things or persons connected not with di. ATION.
plomatics, but with diplomacy. Thus DIGEST. [JUSTINIAN'S LEGISLA- by diplomatic proceedings we mean proTION.)
ceedings of diplomacy; and the corps diDIGNITIES. [TITLES OF HONOUR.] plomatique, or diplomatic body, at any
DILAPIDATION, ECCLESIASTI- court or seat of government, means the CAL. [BENEFICE, p. 349.]
body of foreign agents engaged in diploDIOCESE. [BISHOPRIC.]
macy that are resident there. DIPLOMACY is a term used either Some of the most important works to express the art of conducting nego- upon the science of diplomatics are the tiations and arranging treaties between following :— Ioannis Mabillon de Re nations, or the branch of knowledge Diplomatica,' lib. vii., fol., Paris, 1681which regards the principles of that art 1709, with the Supplementum, fol., and the relations of independent states to Paris, 1704 ; to which should be added one another. The word comes from the the three treatises of the Jesuit, Barthol. Greek diploma, which properly signifies Germon, addressed to Mabillon, ‘De Veany thing doubled or folded, and is more teribus Regum Francorum Diplomatibus,' particularly used for a document or writ- 12mo., Paris, 1703, 1706, and 1707:ing issued on any more solemn occasion, Dan. Eber. Baringii ‘Clavis Diplomatica,' either by a state or other public body, 2 vols. 4to., Hanov., 1754 ; Ioan. Walbecause such writings, whether on waxen theri Lexicon Diplomaticum,' 2 vols. tablets or on any other material, used fol., Götting., 1745-7; .Nouveau Traité anciently to be made up in a folded form. de Diplomatique, par les Bénédictins The principles of diplomacy are to be Tassin, &c., 6 vols. 4to., Paris, 1750-65; found partly in that body of recognized Historia Diplomatica,' da Scipione customs and regulations called public or Maffei, 4to., Mant., 1727 ; Io. Heumann international law, partly in the treaties or von Teutschenbrunn Commentarii de special compacts which one state has Re Diplomatica Imperiali,' 4to., Nurem., made with another. The superintend- 1745 ; Dom de Vaines, “Dictionnaire ence of the diplomatic relations of a Raisonné de Diplomatique,' 2 vols. 8vo., country has been commonly entrusted in Paris, 1774; J. C. Gatterer, “ Abriss der modern times to a minister of state, called Diplomatik,' 8vo., Götting., 1798; and the Minister for Foreign Affairs, or, as C. T. G. Schoenemann • Versuch eines in England, the Secretary the Foreign vollständigen Systems der allgemeinen Affairs. The different persons per- | besonders ältern Diplomatik,' 8vo., Götmanently stationed or occasionally em- ting., 1802. ploved abroad, to arrange particular DIRECTOIRE EXE'CUTIF was the points, to negotiate treaties commercial name given to the executive power of the and general, or to watch over their exe French republic by the constitution of the cution and maintenance, may all be con year 3 (1795), which constitution was sidered as the agents of this superintend framed by the moderate party in the ing authority, and as immediately ac. National Convention, or Supreme Legiscountable to it, as well as thence deriving lature of France, after the overthrow of their appointments and instructions. For Robespierre and his associates. [Comthe rights and duties of the several de MITTEE OF PUBLIC SAFETY.] By this scriptions of functionaries employed in constitution the legislative power was diplomacy, see the articles AMBASSA- intrusted to two councils, one of five Don and CONSUL.
hundred members, and the other called DIPLOMATICS, from the same root des anciens,” consisting of 250 members.
The election was graduated : every pri- | ascendancy, the constitution of the year 3 mary or communal assembly chose an and the Directory were overthrown, after elector, and the electors thus chosen four years' existence. (Histoire du Diassembled in their respective departments rectoire Exécutif, 2 vols. 8vo., Paris, to choose the members for the legislature. 1802.) The law of the conscription was Certain property qualifications were requi- passed under the administration of the site for an elector. One-third of the Directory. [CONSCRIPTION.] councils was to be renewed every two DISABILITY is a term used to denote years. The Council of Elders, so called a legal incapacity in a person to inherit because the members were required to be lands or enjoy the possession of them, or at least forty years of age, had the power to take that benefit which otherwise he of refusing its assent to any bill that was might have done, or to confer or grant an sent to it by the other council. The estate or benefit on another. All persons executive power was intrusted to five who are disabled from taking an estate or directors chosen by the Council of Elders benefit are incapable of granting or conout of a list of candidates presented by ferring one by any act of their own, but the Council of Five Hundred. One of many persons who are incapable of disthe five directors was to be changed posing of property may take it either by every year. The directors had the inheritance or gift. management of the military force, of the This legal disability may arise in four finances, and of the home and foreign ways, which are expressed by the Euglish departments; and they appointed their law in the following terms: By the act of ministers of state and other public func- the ancestor; by the act of the party himtionaries. They had large salaries, and self; by the act of the law; or by the act a national palace, the Luxembourg, for of God. their residence, and a guard.
By the act of the ancestor, as where he The project of this constitution having is attainted of treason or murder, for by been laid before the primary assemblies attainder his blood is corrupted, and his of the people, was approved by them. children are made incapable of inheriting. But by a subsequent law the Convention But by the stat. 3 & 4 Wm. IV. c. 106, decreed that two-thirds of the new coun- $ 10, this disability is now confined to the cils should be chosen out of its own inheriting of lands of which the ancestor members. This gave rise to much oppo- is possessed at the time of attainder: in sition, especially at Paris, where the sec- all other cases a descent may be traced tions, or district municipalities, rose through him. [ATTAINDER.) against the Convention, but were put By the act of the party himself, as down by force by Barras and Bonaparte, where a person is himself attainted, outon the 13th Vendemiaire (4th of October, lawed, &c., or where, by subsequent deal1795). After this the new councils were ings with his estate, a person has disabled formed, two-thirds being taken out of the himself from performing a previous enmembers of the Convention, and one-third gagement, as where a man covenants to by new elections from the departments. grant a lease of lands to one, and, before The councils then chose the five directors, he has done so, sells them to another. who were Barras, La Réveillière-Lépaux, By the act of law, as when a man, by Rewbell, Letourneur, and Carnot; all of the act of law, without any default of his whom, having voted for the death of the own, is disabled, as an alien born. king, were considered as bound to the By the act of God, as in cases of idiotcy, republican cause. On the 25th of October lunacy, &c.; but this last is properly a the Convention, after proclaiming the disability to grant only, and not to take beginning of the government of the laws, an estate or benefit, for an idiot or lunaand the oblivion of the past, and changing tic may take a benefit either by deed or the name of the Place de la Révolution will. into that of Place de la Concorde, closed There are also other legal disabilities, its sittings, and the new government was as infancy, and coverture, or the state of a installed. Upon Bonaparte's gaining the married woman [WIFE); but these dis