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 66 particular." (b)

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 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.

CHAP. II.

OF THE CHANGES IN THE LAW OF SUCCESSION INTRODUCED INTO THE LAW OF ENGLAND, BY LAPSE OF TIME, AND BY STATUTE.

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. (b)

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.

(b) 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.