"prejudged that their books in their own life times should "fall in their wives executorie; therefore the saids estates "liberates and exeemes all ministers surviving their wives "from confirming their books in their wives testaments, "and from giving up inventar thereof; and declares their, "books no wayes to fall in the executorie of their wives "whom they survive.”

This was repealed by the acts rescissory of Charles II., and the matter again returned to the regulations of the common law; but it is worthy of notice, as touching upon a point of great importance in the law of Scotland at this day, namely, the rights accruing to the personal representatives of a wife on her predeceasing her husband; and this appears to be the only mention of this point in the statute law of Scotland.

The only other act which it is necessary to notice upon this subject is of very recent date, that of the 4th of George IV. c. 97%, relative to "the better granting of confirmations in Scotland." It had been a maxim of the law, that confirmation was necessary to vest the moveable estate of a person deceased in his or her representatives; and that if such representatives died before confirmation, all their rights died with them, and accrued to the other next of kin of the deceased. By this act it was intended to remedy this inconvenience: it is accordingly enacted (sect. 1.) that in all cases of intestate succession, where any person or persons, who, at the period of the death of the intestate, being next of kin, shall die before confirmation be expede, the right of such next of kin shall transmit to his or her representatives, so that confirmation may, and shall be granted to such representatives, in the same manner as confirmations might have been granted to such next of kin, immediately upon the decease of such intestate. (n)

(n) Some doubts have been suggested as to the efficiency of this

As we do not discover from these statutes how the law of Scotland came to differ so widely from the law of England, as it now does, in regard to the rules of succession in personal estate, neither can we find this matter explained in any writer on the Scotch law. The earliest name of a writer on the law of Scotland, is that of Sir James Balfour, of Pittendriech. (0) In the compilation termed "Balfour's Practicks," the ancient law, as laid down in the Regiam Majestatem, is often referred to, but no deduction is given of the various changes of the law which had taken place in the intervening period. This appears to be a book of very doubtful authority, composed of many miscellaneous matters, more resembling a common-place book, than a digested treatise on the law. Indeed the author, whoever he was, in a good many instances, cites "ex meo albo libro." There is no internal evidence, nor evidence of cotemporary authority, to show that this book was compiled by the person whose name it bears; and several of the matters contained in the book, (particularly the Injunctiones to the Commissaries in 1610,) are of dates a good many years after the death of Balfour. (p)

statute, to carry into effect the very proper and beneficial objects which were intended, when it was framed (Stair by Brodie, p. 597. in notis); but it is hoped that the statute will be found to operate as it was meant to operate, namely, to preserve to the representatives of a party dying, all those rights to which such party was entitled, and which, by the want of confirmation, would have gone over to others. The right of obtaining confirmation, which belonged to the party dying, is transmitted to his or her representatives. Upon their obtaining confirmation, could any remoter next of kin enter into competition with them? We think not; but if there be any ambiguity in regard to this very important matter, such ambiguity should not be allowed to remain.

(0) In the fourth report of Mr. Thomson, the deputy clerk register, to the commissioners on the public records in 1810, he says (speaking of this book), "I am not, at present, aware of any authority for ascrib→ ing it to Sir James Balfour, more ancient than the reign of Charles II." (p) Sir James Balfour appears to have been a most extraordinary person. In Goodall's preface to the printed edition of Balfour's Prac

In Craig's time the law of succession in personal estate in Scotland, does not appear to have differed materially from what it is at this day. His book chiefly related to real estate, but from time to time it notices also the rules of law in regard to personal estate. It may be noticed that at that period the rule of law, in regard to the division of the succession of a person deceasing, under certain circumstances, between his relations by the father's and mother's side, (materna maternis et paterna paternis,) does not appear to have been fixed as it is at present: it is now well understood that no such rule obtains in the law of Scotland in the succession of personal estate, though Craig appears to have been of a contrary opinion. (g)

Sir John Nisbet in his Doubts appears also to have been inclined to this rule of succession in personal estate, of materna maternis et paterna paternis. (r) But Sir James Stewart is clearly of opinion that it had no place in the law of Scotland. (s)

Neither do we find in the reported decisions, nor in the institutional writers on the law of Scotland, any deduction of the alterations of the law upon this subject. In both

ticks (Edinburgh, 1754), the date of Balfour's birth is not mentioned, but he is said to have died in 1583. In 1546, he appears to have been implicated in the murder of Beaton; he was carried to France as a prisoner, and, according to Knox (b. 1. p. 77.), was sent to the French galleys, where he continued for some time. He appears afterwards to have been a favourite with Mary; he was successively parson of Flisk, Commendator of Pittenweem, Clerk Register, some time President of the Court of Session, Deputy Governor of Edinburgh Castle, and a Privy Councillor. Certain of the Black Acts, printed in the reign of Mary, bear his signature. At his death he appears to have been under forfeiture for accession to the murder of Darnley. His talents must have been of an extraordinary kind to have fitted him for these various offices, in a period so stirring and turbulent.

(4) Craig, 1. 2. Dieg. 15. sect. 6.

(r) Nisbet's Doubts, p. 123.

(s) Stewart's Answers, p. 205.

we find the rules of law laid down as they subsist at the present day.

In Burn's Treatise on the Ecclesiastical Law of England, he states an hypothesis, in regard to the law of Scotland, on the subject of the succession in personal estate, that it had been borrowed from the custom of the province of York, which it resembled in several particulars, because, as he says, "the whole kingdom of Scotland, when this custom of the province of York took place, was within and a part of that province." And in aid of this hypothesis, he notices several points in which the law of Scotland agrees with the custom of the province of York. (t) It does not appear, however, that this hypothesis is well founded. In the reign of William the Lyon, in 1188, the independence of the Scottish church appears to have been declared by a bull of Pope Celestine the Third. (u) At a period, as we have endeavoured to show (x), considerably later, the law of the division of personal estate, per rationabiles partes, prevailed, as the general law, in England, in Scotland, and in Ireland.

As far as appears, some of the most important rules in the law of succession in personal estate in Scotland, have been at all times unknown in every part of England; particularly the doctrine of the communion of goods between husband and wife, and the important consequences thence resulting to the parties and their children. These

(t) 4 Burn's Eccles. Law (Custom of the province of York), p. 475. I have occasion often to cite this work, which is done from Tyrwhitt's edition of 1824.

(u) 1 Hailes's Annals, 130. Though there were great disputes afterwards as to the independence of the Scottish church, there is no reason to believe that an archbishop of York could, at a period subsequent to this, have impressed the custom of York on the kingdom of Scotland.

(x) Supra, pp. 7. 24.

have been adopted in Scotland, and remain in full force in that country at the present day.

If an hypothesis is to be sought for, it appears to be not unreasonable to conclude, that we have to look to a continental source for the origin of our present system of the law of succession in mobilibus, and for the introduction of that modification of the Roman law of succession which now obtains in Scotland. It belongs to our civil history to deduce, from their origin, the intimate political relations which subsisted for so many centuries between Scotland and France. England and Scotland, in the lapse of centuries, had become almost natural enemies; and the connexion between France and Scotland, arising from their mutual interests, was cemented by the closest alliances. During this period the legislature had, in 1532, instituted the College of Justice, on the model of the Parliament of Paris (y); and, soon after the marriage of Mary to the Dauphin, in 1558, Frenchmen and Scotchmen were mutually naturalised in the two countries. The royal ordonnance of Henry II. of France, granting these privileges to Scotsmen within the realm of France, is printed in our statute book, along with the act of the Scottish parliament, granting similar privileges to Frenchmen within Scotland. From this ordonnance, Henry appears to have considered, that by this marriage the realms of France and Scotland were to be for ever inseparably united: He says, "Au moyen de quoy estans les subjects des deux royaumes, (qui ont jusques icy & des long temps ordinairement communiqué ensemble, vescu en mutuelle amitié & intelligence, favorisé & secouru les uns les autres,) par l'approche des maisons de France & d'Escosse, tellement unis ensemble, que nous les estimons comme une mesme chose.” (z),

(y) Mackenzie's Institute, b. 1. t. 3. s. 7.

(z) 1558, c. 66. (A striking instance of the uncertainty of all human affairs!) It appears from a memorial printed by Sir George Mackenzie,