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“ 3. De qua tertia parte, testator liberam disponendi facultatem habebit.
6 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 Scotiæ Ottobono, legato in Anglia commo“ ranti,” 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.
of THE CHANGES IN THE LAW OF SUCCESSION INTRODUCED
INTO THE LAW OF ENGLAND, BY LAPSE OF TIME, AND BY
It is matter for observation, that though the rules of the common law in England were of a general nature in regard to the division of personal estate into the dead's part and the partes rationabiles of the wife and children, as laid down in Glanvil and other writers from a very early period, yet there appear to have then existed customs of a different kind in some parts of England. After laying down the general rule of law as already stated, Bracton says, “Et ea
quæ dicta sunt locum habent et tenent nisi sit consuetudo quæ se habet in contrarium, sicut in civitatibus, burgis,
et villis ;” and then he goes on to cite the custom of the city of London in regard to dower, as controlling the general rules of law in this matter (a): and the same thing appears in Fleta in the same words. (6)
There is a good deal of obscurity in regard to the introduction of that important change into the law of England, which converted the law of reasonable partition into a custom of particular parts of the kingdom, instead of being one of general observance. This change appears to have been made silently, and by lapse of time, without any statute or general regulation to this effect.
Some brief notices appear upon this subject in the Natura Brevium of Fitzherbert. (c) He mentions that the writ de rationabile parte bonorum, by the statute of Magna
(a) Bracton, 61.
(6) Fleta, lib.2. c. 57. (c) Fitzherbert, N. B. 122. ed. 1794.
Carta, seemed to be the common law of the realm, and that the same so appeared in Glanvil. In 31 Edward III. a woman demanded the moiety of her husband's goods because he had no children, and counted upon the general custom of the realm. This was adjudged to be good. But in after times, and by degrees, it became the practice to count for the same upon the special customs of particular places.
Accordingly in the Register the writs of partition rehearse only the customs of particular counties, and not the general law. (d) Any more minute enquiry into this subject would be more curious than profitable. In the lapse of time it came to be well understood that the law de rationabile parte bonorum had ceased to obtain in the greater part of the province of Canterbury, where a person might grant or dispose of his whole personal estate by will. But it still continued in some parts of the principality of Wales, in the province of York, and in the city of London, mixed up, in these districts and places, with various local differences and regulations.
Thus England, in regard to personal succession, became divided between the general and the customary law. This division appears to have existed during several centuries, while personal estate was of less importance, without attracting observation in regard to its manifest inconvenience. The distinctions between the general and the customary law still remain in full force, though both have been modified by the statutes to be afterwards mentioned.
While this very important change was silently taking place in the common law of England, several other
(d) Even as late as the reign of Charles I., Sir Henry Finch lays down the law of the rationabiles partes as the common law of the land. Finch's Law, 175.
important changes were also introduced by statutes passed from time to time. The first of them was made by the statute of Westminster the second in 1285. (e) It had by this time, probably, become intolerable, that the goods of a person dying intestate, should be seized by the ordinary, and disposed of as he saw fit, without being subject to the payment of the debts of the deceased.
It was therefore thus laid down in this statute : Cum post mortem alicujus decedentis intestati, et obligati aliquibus in debito, bona deveniant ad ordinarius disponenda, obligeter de cætero ordinarius ad respondendum de debitis quatenus bona defuncti sufficiunt, eodem modo quo executores hujusmodi respondere tenerentur si testamentum fecisset."
Sir Edward Coke observes upon this statute, that it was made in affirmance of the common law (f); and it has been seen that an equitable provision to the same effect had been contained in the Great Charter of John. In the turbulent period which had intervened, this had probably been lost sight of.
In the 31st of Edward III. two acts were passed of great importance in regard to the law of succession in England. The first of them was for “redressing of extortion in bishop's officers in proving of wills.” (g)
In this statute, on the recital, that, “ the ministers of bishops, and other ordinaries of holy church, take of the people grievous and outrageous fine for the probate of testaments, and for the making of acquittances thereof, the King hath charged the Archbishop of Canterbury, and the other bishops, that they cause the same to be amended ; and if they do not, it is accorded that the King shall cause to be enquired by his justices of such oppressions and extortions, to hear them
(f) 2 Instit. 397.
(e) 13 Edward 1. c. 19.