3. The copies of deeds preserved in the chartularies of the Scottish monasteries strongly confirm the position that their ancient laws, in regard to real and personal estate, and the forms of their legal instruments of all kinds, nearly coincided with those of England at the same period. (t)

4. Upwards of four centuries ago, the legislature of Scotland recognised the books of Regiam Majestatem and Quoniam Attachiamenta as ancient books of the law of Scotland. In a statute of James the First of that kingdom, of March 1425, it is thus enacted: "It is sene

"spedful and ordanit be the king and the parliament, that 66 sex wise and discrete men of ilkane of the thre estatis, "the quhilkis knawis the lawis best, sal be chosyn, quha "(sen fraude and gyll awe to help no man) sal se and

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examyn the bukis of law; that is to say, Regiam Majes"tatem and Quoniam Attachiamenta, and mend the lawis "that nedis mendment." (u) At that period the books thus noticed by the Scottish parliament, according to all fair construction, must have been reputed as of some considerable antiquity.

"likewise that the law of Scotland, as hath before been contended, "agreed anciently, not only with the principles of the law of England, "but in its practice, though there might be some variances of no great 'importance."

(t) I have examined many of those deeds transcribed from the Macfarlane MS., and meant to have been used in a Monasticon Scolicanum, for which large collections had been made by a distinguished lover of antiquities, Mr. Spottiswoode of Spottiswoode. In the 12th, 13th, and 14th centuries these appear to differ little, if at all, from the deeds of the same period, printed in Madox's Formulare Anglicanum. The tenures, the structure of the instruments, and the forms of their testing clauses, appear to be all precisely the same. Nothing could throw so much light upon the state of the ancient law of Scotland as a publication of these chartularies, or of a selection from them; and I rejoice to learn that some publications of this nature are in progress.

(u) From the edition of the Record Commission; 1425, cap. 54. of the common edition of the Scottish Acts.

The same thing was done in the parliamentary commission for revising the laws in the reign of James the Third in 1469 (x), and in the commissions for the same purpose in the reign of Mary in 1566, and in the regency of Morton in 1574 (y), all tending to the same conclusion, and apparently much overweighing the objections of Craig to the authority of this body of our ancient laws.

Though it may be impossible to fix with precision the period when the Regiam Majestatem was compiled, or adopted as of authority in the law of Scotland, it appears to be not unlikely that this took place some time towards the end of the reign of Edward the First. As it refers in the text to the decretals of Boniface, which were not published till 1298, it follows that this compilation must have been of a date posterior to the publication of these decretals; and this hypothesis also concurs with all that is known of the policy of that most sagacious prince. The author of Caledonia states the same opinion upon this subject, and considers that the true origin of the Regiam Majestatem is to be sought in the famous ordinance of Edward in 1305, "Super stabilitate terræ Scotia." (z)

(x) Erroneously printed in the common edition of the Scottish Acts of Parliament as of the year 1487, cap. 115. (4th Report of Mr. Thomson, deputy clerk register, in 1810.)

(y) Ibid.

(z) Caledonia, vol.i. p. 732.

The discovery made some years ago of an ancient manuscript in the library of the canton of Berne, containing collections of the laws of England and of Scotland, excited some new interest upon this question. This book is now in the General Register House at Edinburgh. For the possession of it we are mainly indebted to the author of Caledonia. According to the description of it given by Mr. Chalmers, it contains copies of Glanvil de Legibus, of the Leges Marchiarum, the English Brevia, and the Statute of Marleberge. These occupy the greater part of the volume. Then commence some collections of

It may thus probably ever remain uncertain at what distinct period Scotland adopted this body of laws, with some intermixture, no doubt, of Celtic customs (a), and local regulations; but there appears to be no difficulty, on the whole, in coming to the conclusion of Lord Kaimes, that " one must be ignorant of the history of "our law who does not know that the laws of England "and Scotland were originally the same, almost in every particular." (b)

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After this deduction it appears that we may safely quote the Regiam Majestatem as an authority in the ancient law of Scotland in regard to the succession to personal estate. The law is thus laid down in that work : :

"1. Cum quis in infirmitate positus testamentum facere " voluerit, si debitis non sit involutus, omnes res ejus mo"biles in tres partes dividentur æquales.

"2. Quarum una debetur hæredi, secunda uxori, tertia "reservetur testatori.

Scottish law, corresponding, though not strictly, with those on the same subjects contained in the Regiam Majestatem. It also contains the Leges Quatuor Burgorum, nearly in the same form as given by Skene.

As this collection makes no mention of the Regiam Majestatem, Mr. Chalmers considers that it affords "additional proofs that the Regiam Majestatem was unknown in the age of this manuscript, at least to "that curious collector." But there is great uncertainty in founding much upon the silence of these early compilers. As far as I have observed, Bracton says nothing of Glanvil; and the author of Fleta is silent as to Bracton, while he borrows so largely from that earlier compilation. Nothing can show more strongly the state of our Scottish legal antiquities than the importance attached to this anonymous book obtained from Berne.

(a) Witness the chapter relative to Cro, which Skene considers not to be genuine, though it be contained in the Berne MS.-(Caledonia, vol. i. p. 729.)

(b) Statute Law abridged, historical notes, p. 429.

"3. De qua tertia parte, testator liberam disponendi "facultatem habebit.

"4. Verum si sine uxore decesserit, medietas ipsi re"servetur." (c)

That this is almost in the very words of Glanvil appears to add to, instead of detracting from, its authenticity, or indeed its authority in the ancient law of Scotland. Where the two books differ, there is more reason to enquire into the grounds of difference, and into the authenticity of such parts of the Regiam Majestatem as do not coincide with the work of Glanvil. (d)

Whatever differences have since arisen in the laws of England and of Scotland, it may be remarked, that as far as the law of succession in personal estate is laid down in

(c) Reg. Majest. lib. 2. c. 37. We find also in a preceding chapter of the Regiam Majestatem, the same regulations as to making a will which were laid down in Glanvil: "Potest liber homo, debitis non "involutus majoribus, de rebus suis in infirmitate sua facere ration"abile testamentum.

2. Sub hac forma secundum patriæ consuetudinem, videlicet, quod primo Dominum suum de meliore et principaliore re quam habet recognoscat.

"3. Deinde ecclesiam, postea alias personas pro sua voluntate." Lib. 2. c. 36.

(d) It affords some evidence to the same effect, that the legatine constitutions of Cardinal Othobon (ante, p. 9.) were addressed to England, Scotland, Ireland, and Wales, as if the same rules in matters ecclesiastical applied at that period to all of those countries. (Præfat. Constitut. Othoboni.) But we know that the labours of Othobon were considered too expensive by the Scottish clergy: he claimed six marks from each cathedral, and four marks from each parish church, for the expenses of his visitation. The King, with the advice of his clergy, forbade the contribution to be made, and appealed to Rome. The Scottish clergy gave the King 2000 marks for defraying the charges of the appeal. (Fordun, lib. 10. c. 21. 1 Hailes's Annals, 178). In the subsequent year, however, the clergy appear to have made their peace with Othobon: 'Ipso anno pacavit clerus Scotia Ottobono, legato in Anglia commoranti," by paying part of the demand. (Fordun, lib. 10. c. 22.)

Glanvil and in the Regiam Majestatem, it has always had effect in Scotland, and remains in full force to this day. It is true that we see nothing in the Regiam Majestatem of the communion of goods between husband and wife, and some other peculiar doctrines of the more modern law of Scotland on this subject. (e) The introduction of these into the law of Scotland will form the subject of consideration in the sequel.

(e) At the present time, this enquiry into the state of our ancient law is not without interest: if the laws of the two countries were the same (as there is reason to believe) six centuries ago, this gives additional reason for considering whether they may not be again consolidated into one body, with infinite advantage to the community of both countries.