"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

(2) 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 lowing year, 1154.

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.” (ƒ) Selden ad Fletam, p.508.

were opposed to the introduction of the civil law, yet in their treatises (as noticed by Selden) they adopted much from the books of Justinian, as well in substance as in form. (g) It was their fashion, in the commencement of their books, to keep in view the proeme of the Institutes of Justinian. This is to be noticed in Glanvil, in Bracton, and in Fleta, compiled in England in three different reigns. The same thing was done by the author of Regiam Majestatem, to whatever age that work must be attributed.

Sir Thomas Craig, the distinguished writer on the feudal law, had a very different opinion in regard to these books of the Regiam Majestatem from that of Skene. (h) Instead of considering them as exhibiting the ancient and authentic law of Scotland, he appears to have held them almost in horror; he treats them merely as a transcript from Glanvil, and considers that the theft was manifest. He adds, "Sufficit hoc jam monuisse nullam auctoritatem eos libros “habere, nihil unde causæ decisio quæri potest continere, "et nunquam in foro pro authenticis consuetudinibus ha"bendos: imo ne nominandos quidem.” (i)

In another place he breaks out almost into an execration against him who first held out these to be genuine books of the law of Scotland; he says, "Male sit illi, quicunque "is fuit, qui nobis leges Normannicas pro nostris obtru"sit." (k)

(g) Selden ad Fletam, p. 463. Wood, in his Institute of the Imperial, or Civil Law (Preface, p. 6.), speaking of the early English writers, says, "Fleta and Bracton, and the most ancient of their writers, would "look very naked if every Roman lawyer should pluck away his "feathers."

(h) Craig was born in 1548, and died in 1608, consequently he never saw Skene's edition of the Regiam Majestatem, which was printed in 1609.

(i) Craig, lib. 1. d. 8. s. 11. (k) Ibid. lib. 1. d. 11. s. 1.

It would be very much out of place here, to enter at large into this celebrated controversy. Lord Hailes (1) has clearly detected some of the proceedings of Skene in editing these ancient books. It is not distinctly known what manuscripts were used by Skene in preparing his printed edition; but in the existing manuscripts of the Regiam Majestatem a reference is made in various places to Glanvil in the text, showing clearly that those manuscripts at least were of a date later than Glanvil. These references Skene has retained. Instead of keeping them in the text, however, he has placed them in the shape of notes in the margin of his book, amidst numerous other marginal references of the same kind. So in these existing manuscripts there are also references in the text to certain authorities in the canon law, to a gloss on the decretals of Gregory IX., and to the decretals of Boniface VIII.; but the decretals of Gregory were not published till 1230, nor the decretals of Boniface till 1298, the former 77 years, and the latter 145 years, after the death of David; and to have given the text correctly would have militated against Skene's hypothesis as to the book being compiled by David I. These quotations, therefore, are also expunged from the text, and thrown as notes into the margin. No doubt can thus exist that Skene merited the character given him by Lord Hailes of "a careless, if not an unfaithful publisher."

But even that admirable person Lord Hailes appears to treat the question in too confined a shape, as one merely in regard to the relative antiquity of the two treatises of Glanvil and of Regiam Majestatem. The real question in this matter is of more importance. Does the Regiam Majestatem, from whatever source taken, exhibit a view of

(1) Examination of some of the arguments for the high antiquity of Regiam Majestatem. Edinburgh, 1769.