but took upon themselves the entire disposition of the personal estates of those who died intestate. A person dying intestate was considered as one whom death had arrested, before he had had time to provide by his last will for the health of his soul. The church, therefore, interposed mercifully towards the deceased in thus disposing of his personal estate, "cum res temporales quæ illius fuerint, per distributionem in pios usus ipsum in juvando sequuntur, et coram cœlesti Judice pro ipso propitiabiliter "intercedunt." (u)

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Many of the Constitutions thus made were of a very equitable nature (x); and Othobon appears to have given his sanction to that chapter of the Charter of John, which related to the distribution of the estates of intestates after payment of their debts. (y) But this was lost sight of;

(u) Constit. Othoboni, 121. It is an inquiry of some curiosity what the church, in such cases, considered to be pious uses.

In the gloss of John of Athon on this constitution, he describes them as being to perform the seven corporal and seven spiritual alms, of which he gives the examples.

Archbishop Stratford, in a provincial constitution made about the year 1342, given by Lyndwood (p. 180.), considers a disposition of the goods of intestates, after payment of debts, " decedentium consan"guineis, servitoribus, propinquis seu aliis," to be pious uses, and for the good of their souls.

Lyndwood, in a gloss upon this constitution, describes pious uses as including generally every thing which related to the good of the soul of the deceased; but he mentions a number of other matters (some of them of a public secular nature), which had also been included under this description of pious uses.

(x) John de Athon, " De bonis intestatorum." Lyndwood, "De "testamentis," passim. These legatine and provincial constitutions, guarded as they were with the pains of ecclesiastical censures (Gladium Ecclesia), were then probably not of less weight than the charters of our kings.

(y) The conclusion of the constitution of Othobon, " De bonis intestatorum" (122.) is in these words: "Proinde super bonis decedentium "ab intestato provisionem quæ olim a prælatis regni Angliæ cum approba

great abuses were introduced, and the clergy took to themselves the personal estates of intestates, without payment of their debts or other charges, and applied them as they saw fit, without any responsibility but to God and themselves.

There is no reason to doubt that great abuses prevailed in England in this branch of the law during a long period. A learned judge in the reign of Elizabeth, according to Plowden, gives this statement in regard to these abuses: — He says, "Before the statute of Westminster 2. c. 19., "if a man died intestate, the ordinary should have had his

"goods, to dispose of in pios usus. For it was to be pre"sumed that the ordinary, who had the care of his soul "in his lifetime, would be the fittest to have the care and "disposal of his goods in pios usus after his death; and, "therefore, the ordinary might seize them, and keep them "without waste; and he might have given, or aliened "them, or have otherwise disposed of them at his pleasure,

"tione regis et baronum dicitur emanasse, firmiter approbantes dis❝tricte inhibemus, ne prælati vel alii quicunque bona intestatorum hujusmodi quocunque modo recipiant, vel occupent, contra pro"visionem prædictam."

John de Athon, in his gloss upon this constitution, applies it to the statute of Gloucester, in the 6th of Edward I., and the statute of Westminster the second, in the 13th of the same king; but the constitution was made in 1268, in the 52d of Henry III. Bishop Gibson in his Codex, and Burn, notice this mistake; and Burn applies the reference in this Constitution to the great charter of Henry, (4 Burn's Eccles. Law, 323.) It has been already noticed, (supra, p. 7.) that it is only in the great charter of John that any thing is said in regard to the goods of intestates. It is amusing to remark how Othobon, a foreign churchman, describes the making of this great charter of our liberties, as made by the prelates of the realm of England, with the approbation of the King and the barons." On this John of Athon gravely observes: "Nota. Discretam et ordinatam provisionem in parliamento regni debere primarie incipere a prælatis, maxime super

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"and the money arising from them he was to dispose of "in pios usus; and, if he did not, he broke the confidence "and trust reposed in him, for which he stood charged in "conscience to God; but nevertheless, the gift or alienation of "the goods by the ordinary was good by the law of the realm. “And although the law committed the goods to the ordinary, "yet it did not make the ordinary chargeable to actions "of creditors for debts due to them by the intestate; but "the charge of the ordinary was only to employ them in "pios usus, and in acts of charity; and the common law "did not make him, being a spiritual governor, subject to "temporal suits for such things. And this was a great "defect in the common law, there being no remedy to come at the debts of the intestate." (~)

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It is not necessary to prosecute this inquiry further, or to adduce the sentiments of others, at a later period, to the same effect. Not only were the rules of law, connected with this subject, most unjust in themselves, but great abuses were exercised in carrying these rules into effect. It will be seen in the sequel, how and by what means these abuses were corrected.

SECT. II.

Early Rules of Succession in the Law of Scotland.

THE antiquities of the law of Scotland are in much obscurity. This has arisen from a great variety of causes, particularly from the unsettled state of the country, and its constant wars maintained during so many centuries with the powerful kingdom of England; but nothing has

(*) Mr. Justice Weston, in Graysbrook v. Fox, East, 7. Eliz. Plowden, 277.

tended more to render the ancient law of Scotland obscure and uncertain, than the opposite statements made upon this subject by the two eminent writers, Skene and Craig.

Skene, the clerk register in the reign of James VI., had opportunities of informing himself upon the state of the ancient law of Scotland at least equal to those which can be enjoyed by any modern. He was selected to publish the ancient books and statutes of the Scottish law. Among those he has given the well-known book, termed (from its initial words) "Regiam Majestatem," and other books and treatises, as forming the ancient and authentic law of Scotland.

Unfortunately Skene had an hypothesis to support, connected in some degree with the much agitated question of the independence of the Scottish monarchy. It was his object to show that the books of Regiam Majestatem were of an antiquity more remote than the work of Glanvil on the law of England. On comparing those two books, it is obvious that both cannot be original works, and that one must either be (in great part) a transcript of the other, or that the plan of both must have been taken from some common source. Skene wished it to appear, that the Books of the Majesty were of the age of David the First of Scotland. Glanvil wrote in the time of Henry the Second of England, at a period somewhat later. (a)

It is obvious that Glanvil's book is in great part a compilation, and it is by no means improbable that some treatise of the same kind may have existed in the time of

(a) The superior antiquity which Skene thus wished to maintain for the Books of the Majesty may not extend over a very considerable period. David died in 1153. Henry II., in whose time the treatise of Glanvil is understood to have been written, began his reign

David I. That there was a writer on the law of England prior to Glanvil is well known. Ricardus de Lucy, justiciary of England from 1162 to 1179, appears to have composed some treatise of a nature similar to Glanvil's. In the epistles of Bishop Grosseteste to Walter de Ralegh, Chief Justice of the King's Bench, in the time of Henry III., a reference is made to a treatise of this Richard de Lucy (6), showing his strong opposition to the introduction into England of the law of legitimation per subsequens matrimonium and in a manuscript of the Regiam Majestatem, presented by the Earl of Cromarty to the Library of the Faculty of Advocates in Edinburgh, Ricardus de Lucy is specially referred to, together with Glanvil (c), as an authority in the law. (d)

At that period the minds of the learned were much directed to the books of the civil law. (e) In the reign of Stephen, with whom David was contemporary, the books of Justinian had been introduced into England; a struggle for the mastery arose between the civil and the common law; and Stephen, by a royal proclamation, prohibited the study in England of the laws then newly imported from Italy. (f)

Though the writers on the common law of England

(b) Selden ad Fletam, p. 538.

(c) Cromarty MS. lib. 2. c. 33. I take this on the authority of Lord Hailes, in his Examination, noted infra.

(d) I do not find that any treatise of Ricardus de Lucy exists. In the Harleian Library (No. 2.) certain conventions of Henry II. regarding Thomas a'Becket and the then pope are addressed from Normandy, "Ricardo de Lucy, Justitiario," and others.

(e) In one of the treatises published with the Code Napoleon,Projet du code civil, discours preliminaire," it is thus remarked, in regard to the Corpus Juris:-"La decouverte que nos ayeux firent de la compilation de Justinien fut pour eux une espèce de revelation." (f) Selden ad Fletam, p.508.