created by leases for lives, which, though not estates in fee, may during their continuance be inherited as if they were. It has been already noticed [CHATTEL] that the large class of things called chattels are not generally the subject of descent, but that some of them are. Upon the death of the owner, the inheritance devolves upon the heir, without any act done by him, or price paid for his acquisition in both these respects, the present law of descent differs from the old feudal customs from which it is derived. According to the old feudal customs, upon the death of the tenant of a fee, the lord of whom it was held was entitled to take and retain it till the heir, for whom proclamation was made, appeared, and paid a sum of money called a relief [RELIEF] as the consideration for his admission into the tenancy; whereupon "seisin" or possession was given him, and he took the "oath of fealty" [FEALTY], and if the tenancy was by "knight's service," "did homage" [HOMAGE] also to the lord. All this was more like a new donation, than the present quiet succession of an heir. The descent of copy holds, however, is still regulated much in the manner described. The heir was not, however, formerly, to the same extent as now, subject to the charges and debts of the deceased tenant, in respect of the property that descended to him. [ASSETS]. The present law of descents qualifies materially in one respect the title of the heir to the inheritance descended. Though it makes him as completely the owner of it as if he had purchased it, that is, acquired it otherwise than by descent, as to right of enjoyment and power of alienation, it does not allow it at his death to descend as if he had purchased it, but, on the contrary, declares that it shall descend as if he had never had it. Such at least is the new law. (§ 1, 2, of the Act.) The heir of an inheritance must be always the heir of the last "purchaser" of it, that is, of the last person who acquired the property "otherwise than by descent, or than by an escheat partition or inclosure, by the effect of which the land shall have become part of, or descendible, in the same manner as other land acquired by descent." The practical importance of this rule cannot | be understood without knowing who the person is who in any case is designated by the law as the "heir" to another. As to descents in fee simple, the fundamental rule is, that any person of kin to another, that is, descended from the same ancestor, however distant, may be his heir, but that no person connected with him by marriage or affinity only, can inherit to him. [CONSANGUINITY; AFFINITY.] If the son inherits to the father, his mother cannot succeed to him, for though she may be heir to the son, she cannot be heir to the father, from whom, and not from the son, "the descent is to be traced." On the other hand, if the father inherits to the son, the mother may succeed to him, for though she cannot be the heir of the father, she may be the heir of the son. The fee, fief, or feud, which may thus now descend to the kindred of the purchaser in infinitum, was once nothing more than a life-interest given to the tenant or holder of it in consideration of the military services to be rendered by the tenant to the donor. The fee was afterwards permitted to descend to the issue of the original grantee, and in process of time to his collateral heirs. This was only effected by means of a fiction; for so firmly settled was the notion that "the blood" (descending) alone of the purchaser or original grantee could be allowed to inherit, that the feudal law was never brought to allow collateral heirs, as such, to be heirs. But when a feud was granted ut antiquum, that is, to be held by the donee as if it had descended to him from some remote unknown ancestor, then the law permitted collateral relations however distant, that is, relations descended from any common ancestor, however remote, to inherit. For it was not known how far distant the ancestor was who was supposed to have been the purchaser, nor who he was, and it was sufficient that the heir might be a descendant of his. (See for the early history of inheritable fiefs, Robertson's Charles V., Sullivan's Lectures, Wright's Tenures, Gilbert on Tenures by Watkins, Butler's Coke upon Littleton, 191, a. v. 4, where there is a comparison of the Roman and feudal laws of inheritance.) While the law, however, went thus far, The English word heir comes from the Roman heres; but the Roman word heres had two significations. It signified either the person or persons to whom a testator gave his property by testament; or the person or persons who took the property of a deceased person in case of his dying intestate. The heres by testament corresponds to the English devisee, and to the person or persons to whom a man bequeaths his personal estate for the purpose of distribution, that is, his executors. Further, the Roman law made no distinction between land and other property, as to descent or testamentary disposition. The Roman heres, therefore, who succeeded in case of intestacy (ab intestato) filled the place of the English heir at law, and also of the person who obtains the administration of an intestate's personal estate. Again, in the case of intestacy among the Romans, all persons were heredes, and took the property in equal portions, who were in the same degree of consanguinity to the intestate: sons and daughters who were in the power of their father inherited alike, whether the real children of the intestate or his adopted children; and the wife who was in the hand of her husband (in manu) inherited with the brothers and sisters of the intestate, for such wife was considered as a daughter. If a man left children living, and there were also children of a son deceased, these grand-children took the share which their father would have had if living: thus the division among the grandchildren in this case was not in capita, but in stirpes. In fact, the Roman law of succession, in case of intestacy, should be compared with the English law of succession to the personal estate of an intestate, which is founded on the Roman law; and it should not be compared with the English law of descent, which is of a feudal character. The law of Roman intestacy is stated by Gaius, lib. iii. 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 ancient feud to inherit it, nor his relations by the half blood, that is, persons descended not from the same father and mother as the purchaser, or any lineal ancestor of his, but from one of them only. Still further exclusions followed from the rule which was afterwards established, that the heir of the fee must be the heir of the person last seised or possessed of it, as well as a kinsman of the whole blood to the actual purchaser. Among the practical consequences of this rule were the following: that if the child of the actual purchaser inherited to him, and became seised, the purchaser's child by another wife could not succeed, because only half brother to the person last seised; and that if the father's brother inherited to the son and became seised, the mother's brother could not succeed, because only related by marriage to the person last seised. All these exclusions and the fictions of the ancient feuds are done away with by the new act, the effect of which is, as before said, to admit among the heirs of the purchaser all his kindred, both of the whole and the half blood, and notwithstanding any previous descent to any heir of his. This it does by enacting that every lineal ancestor shall be capable of being heir to any of his issue (§ 6); that any person related to the purchaser by the half blood shall be capable of being his heir (§ 9), and that in every case descent shall be traced from the purchaser (§ 2). Still, however, the wife or her kin cannot inherit to the husband, nor the husband or his kin to the wife. But the hardship of these exclusions is at least mitigated by the law of dower and curtesy, which must be read together with the law of descent as one law. The order in which the kindred of the purchaser inherit is a matter purely legal. The practical difficulty in finding who is heir, is 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 by the ancients, and being generally abolished where it existed on the Continent and in the United States of America. For the history of this rule, see Hale's History of the Common Law; Sullivan's Lectures; Robinson On Gavelkind; 2 Blackstone's Com.; Wright's Tenures; and for observations on its expediency, Smith's Wealth of Nations. The preference of males to females is not so peculiar. The Jews, Athenians, and Arabians, though not the Romans, gave the inheritance to sons exclusive of daughters. (For the Athenian law of inheritance, see Jones's Isaus; for that of the Jews, Selden, De Successionibus apud Hebræos.) | This is not however the case among most foreign nations at present. The preference of the child of the elder son dead in the purchaser's lifetime to the younger son has some interesting historical associations. The law on this point seems not to have been settled till after most of the other rules of descent. It was still somewhat doubtful when King John kept his nephew Arthur from the throne by disputing it. (2 Blackstone's Com.; Sullivan's Lectures, lect. 14. In Robertson's Charles V., vol. i. p. 272, there is a curious story of the trial by combat of this point of law.) The descent of estates tail (regulated by stat. 3 Ed. I. c. 1) differs from that of fees simple principally in this, that only the descendants of the first donee can inherit; and of these only males claiming exclusively through males can be heirs when the estate is in tail male:' when it is in tail female (a mode of gift which is quite obsolete), only females claiming exclusively through females. [ENTAIL.] The limited descent of the estates, together with other qualities of them, makes them the best representatives at present existing (excepting indeed copy holds) of the ancient fiefs. (On the law of descent, as it existed before the late act, see Sir Matthew Hale's History of the Common Law, chap. xi.; 2 Blackstone, Com., chap. xiv.; Cruise's Digest, vol. iii. Watkins On Descents principally treats of curious points, many of which have ceased to be important. As to the reasons for the new alterations, see First Report, Real Property Commissioners.) DESERTER, an officer or soldier who either in time of peace or war, abandons the regiment, battalion, or corps to which he belongs, without having obtained leave, and with the intention not to return. The word deserter is from the Roman Desertor, which had various meanings. A soldier who did not give in his name (dare nomen) when duly summoned to service might be treated as a Desertor. (Liv. iii. 69.) The soldier who fled in battle and left the standard was called Desertor, and the punishment was death: sometimes every tenth man was taken by lot and put to death. (Livy. ii. 59; Plutarch, Crassus, c. 10.) Desertion among the Romans was a general term for any evasion of military duty: the old punishment was death, or loss of citizenship, as the case might be. He who went over to the enemy was transfuga or perfuga, and was always put to death. Under the Empire there were various classifications of desertion with their several punishments. (Dig. 49, tit. 15, "De Re Militari.") As the last-mentioned circumstance distinguishes the crime of desertion from the less grave offence of being absent without leave, it becomes necessary, before the conviction of the offender, that evidence should be apparent of such intention. This evidence may be obtained generally from the circumstances under which the deserter is apprehended; for example, he may have been found in a carriage or vessel proceeding to a place so distant as to preclude the possibility of a return to his corps in a reasonable time; or letters may have been found in which an intention to desert is expressed; or some offer may have been made by him of enlisting in another corps, or of entering into some other branch of the service. The civil courts of law in this country have ever had authority to try offenders accused of desertion; but they have long since ceased to exercise such authority, and they now interfere only in the rare case of an appeal from the decision of the court-martial which is held for the purpose of investigating the charge and awarding the punishment. The courts- | sidered as soldiers whether enlisted or martial exercise, to a certain extent, a not. discretionary power in proportioning the punishments to the criminality in the accused; and this power is generally considered as more likely to promote the ends of justice than the inflexibility of the law in civil courts, where, since no middle course can be taken between condemnation and acquittal, the criminal frequently escapes through the compassion of the jury, when the punishment which by law must follow a verdict of guilty appears disproportionate to the crime. The leniency which has invariably characterised the sentences of courtsmartial, and the custom of not awarding the punishment in its full extent till after a repetition of the crime, sufficiently justifies the confidence reposed in those courts. The practice of deserting from one regiment or corps, and of enlisting in another, either from caprice or for the sake of a bounty, having been very frequent, a particular clause has been inserted in the Articles of War, in order to prevent this abuse. It declares that any noncommissioned officer or soldier so acting shall be considered as a deserter, and punished accordingly; and that any officer who knowingly enlists such offender shall be cashiered. It is also declared that if any soldier, having committed an offence against military discipline, shall desert to another corps, he may be tried in the latter corps, and punished for such offence; and his desertion may be stated before the court as an aggravation of his guilt. Any officer or soldier who may advise or encourage another to desert is also punishable by a general court-martial. Absconding from a recruiting party within four days after having received the enlisting money is also considered as desertion; and an apprentice who enlists, representing himself as free, if he afterwards quits the corps, is esteemed a deserter unless he deliver himself up at the expiration of his apprenticeship. Vagrants also, who, pretending to be deserters, give themselves up as such with a view of obtaining money or provisions, are, by a clause of the Mutiny Act, to be con A non-commissioned officer or soldier who simply absents himself from his corps without leave is exonerated from the graver part of the charge, if any circumstances can be adduced from which it may be inferred that the absence was intended to be only for a short time. Such circumstances are, goods of value being left behind, the occupation in which the absentee is found to be engaged being in its nature temporary, an intention of returning having been expressed, or again, the offender suffering himself to be brought back without resistance. Simple absence without leave is referred to regimental courts-martial merely, and these award the punishment discretionally. The Mutiny Act authorises general courts-martial to condemn a culprit to death, if his crime should be found to deserve the extreme punishment; in other cases they may sentence him to be transported as a felon, either for life or for a term of years, or to serve in the ranks for life, or for a length of time exceeding that for which he had originally engaged to serve. In some cases, also, corporal punishment is awarded, and an offender may be sentenced to lose the increased pay or the pension to which he would have been entitled if the guilt had not been incurred. Desertion is justly considered one of the greatest offences that can be committed by any man who has adopted the profession of arms. The officer or soldier who has undertaken to assist in the defence of his country, and steals away from the duties he is called upon to perform, violates a sacred engagement. Whether he withdraw through caprice, or to escape the privations to which the soldier is occasionally exposed, he sets an example of discipline infringed, he deprives the army of his services at a time perhaps when he can with difficulty be replaced; and while he basely seeks his own ease, he throws an additional burthen upon his companions in arms. If he pass over to the enemy, he becomes the vilest of traitors; and, should he escape the retribution which awaits him from his injured country, he must submit to live dishonoured, an exile from its bo som. DESPOTISM. RANT.] as Diplomacy, is a term used to express the acquaintance with ancient documents [MONARCHY; TY- of a public or political character, and DEVISE. [WILL.] DIFFEREATION. [MARRIAGE.] DIFFERENTIAL DUTIES. [TAX ATION.] DIGEST. TION. [JUSTINIAN'S LEGISLA DIGNITIES. [TITLES OF HONOUR.] DILAPIDATION, ECCLESIASTICAL. [BENEFICE, p. 349.] DIOCESE. [BISHOPRIC.] DIPLOMACY is a term used either to express the art of conducting negotiations and arranging treaties between nations, or the branch of knowledge which regards the principles of that art and the relations of independent states to one another. The word comes from the Greek diploma, which properly signifies any thing doubled or folded, and is more particularly used for a document or writing issued on any more solemn occasion, either by a state or other public body, because such writings, whether on waxen tablets or on any other material, used anciently to be made up in a folded form. The principles of diplomacy are to be found partly in that body of recognized customs and regulations called public or international law, partly in the treaties or special compacts which one state has made with another. The superintendence of the diplomatic relations of a country has been commonly entrusted in modern times to a minister of state, called the Minister for Foreign Affairs, or, as in England, the Secretary the Foreign Affairs. The different persons permanently stationed or occasionally employed abroad, to arrange particular points, to negotiate treaties commercial and general, or to watch over their execution and maintenance, may all be considered as the agents of this superintending authority, and as immediately accountable to it, as well as thence deriving their appointments and instructions. For the rights and duties of the several descriptions of functionaries employed in diplomacy, see the articles AMBASSADOR and CONSUL. DIPLOMATICS, from the same root especially of the determination of their authenticity and their age. But the adjective, diplomatic, is usually applied to things or persons connected not with diplomatics, but with diplomacy. Thus by diplomatic proceedings we mean proceedings of diplomacy; and the corps diplomatique, or diplomatic body, at any court or seat of government, means the body of foreign agents engaged in diplomacy that are resident there. Some of the most important works upon the science of diplomatics are the following:-Ioannis Mabillon de Re Diplomatica,' lib. vii., fol., Paris, 16811709, with the Supplementum,' fol., Paris, 1704; to which should be added the three treatises of the Jesuit, Barthol. Germon, addressed to Mabillon, De Veteribus Regum Francorum Diplomatibus,' 12mo., Paris, 1703, 1706, and 1707:Dan. Eber. Baringii 'Clavis Diplomatica,' 2 vols. 4to., Hanov., 1754; Ioan. Waltheri Lexicon Diplomaticum,' 2 vols. fol., Götting., 1745-7; Nouveau Traité de Diplomatique,' par les Bénédictins Tassin, &c., 6 vols. 4to., Paris, 1750-65; Historia Diplomatica,' da Scipione Maffei, 4to., Mant., 1727; Io. Heumann von Teutschenbrunn Commentarii de Re Diplomatica Imperiali,' 4to., Nurem., 1745; Dom de Vaines, Dictionnaire Raisonné de Diplomatique,' 2 vols. 8vo., Paris, 1774; J. C. Gatterer, Abriss der Diplomatik,' 8vo., Götting., 1798; and C. T. G. Schoenemann Versuch eines vollständigen Systems der allgemeinen besonders ältern Diplomatik,' 8vo., Götting., 1802. DIRECTOIRE EXECUTIF was the name given to the executive power of the French republic by the constitution of the year 3 (1795), which constitution was framed by the moderate party in the National Convention, or Supreme Legislature of France, after the overthrow of Robespierre and his associates. [CoмMITTEE OF PUBLIC SAFETY.] By this constitution the legislative power was intrusted to two councils, one of five hundred members, and the other called 'des anciens," consisting of 250 members. |