deceased was unmarried, the whole was dead's part. The dead's part only could be willed by the deceased.(g) It will be observed that at this time, the rules in personal succession were substantially the same in England as in Scotland. In the Regiam Majestatem the rules regarding personal succession are very short, while the rules regarding heritable succession are stated at considerable length. The reason of this appears to be that in those days of rampant feudalism, commerce was at a low ebb; no profession except that of arms was deemed honourable. Land, houses, and animals formed the bulk, at least, of the public wealth. Personal estates became of account only after the days of feudalism began to decline. Until then, and for some time afterwards, the Roman clergy looked after such estates. Down to the Reformation all questions relating to personal successions and matrimony were attached to the ecclesiastical polity of the kingdom.(h) The Roman bishops who, within their respective dioceses, were termed the ordinaries, administered justice according to the Canon Law, with appeal only to the supreme Consistory of the Pontiff at Rome.() Their proceedings were conducted with closed doors and in Latin. No record of these proceedings now exists, but it appears to have consisted with their notions of justice to enrich themselves at the expense of the relatives of intestates. The doctrine that the personal estate of every intestate should be laid out for promoting the good of his soul was solemnly inculcated.(k) At the first, advice only was given in this direction; the advice, however, soon became a command; and so, in process of time, it came to be settled law that where a man died intestate, neither his wife, child, nor next (g) Bracton, 2, cc. 60, 61; Fleta, 2, c. 67. (h) The clergy assumed jurisdiction not only in questions of succession and matrimony, but of teinds, patronages, scandals, oaths, and every other matter which might, with any propriety, be styled ecclesiastical. Their jurisdiction was so extensive as to oblige them to commit the exercise of their powers to their vicars, who are, in the Act 1466, c. 8, called officials or commissaries. Hence the Commissary Court was called the Bishop's Court or Consistorial (i) Ferguson's Consis. Law, p. 11. of-kin had right to any share of his personal estate; all went to the ordinary, to be devoted to pious uses as his conscience directed.(l) None of the intestate's relatives, not even his widow or children, had power to call the will of the ordinary in question: the law trusted him with the disposition of the whole estate. At first the rights of creditors even had to yield to the ordinary's disposition for the good of the deceased's soul. But this extreme injustice was removed by an Act of William the Lyon, in the thirteenth century, which took away some of the ordinary's perquisites. That Act provides that:"1. Gif ane free man decease intestat, his gudes sal be distributed be the sicht of his friends, parents, and be the provision of halie kirk, reservand to all creditors the debts auchtand to them be the defunct. 2. After the decease of anie nan intestat, and awand debts to creditors, his gudes sould be disponed be his ordinar; and the ordinar sal be oblissed to answer for the debts, sa far as the gudes and geir will extend. 3. In the samine maner that the executors sould doe in case the defunct had made ane testament."(m) In process of time the bishop, in granting confirmations, mercifully restricted his claim to the "dead's part." This might be a third of the free estate, or might be the whole estate, when, from immaturity of age or other causes, the deceased was incapable of making a will, or had failed to exercise that power. Previous concessions by the bishops appear, however, to have emboldened the people. The loss to the deceased's relatives of the whole of even the dead's part came to be regarded as a serious grievance, and soon the legislature passed the Act 1540, cap. 120.(n) That Act provides that "For sa meikle as ofttimes zoung persones dies that may not make testamentes, the ordinares usis to give their executoures datives to their gudes, quhilkis intromettis therewith, and withdrawis the gudes fra the kin and friendes that suld have the samin be the law, it is statute and ordained be the three estates of this present Parliament that quhair ony sik persons dies within age that may not make their testamentes, the nearest of their kin to succeed to them sall have their gudes, without prejudice to the ordinares anent the quote of their testamentes." This Act, however, still reserved to the ordinary the "quote of the testament" for granting confirmations; and, strange as it may (1) Kames' Essays. (m) Reg. Mag. 312. (n) See § 57. appear, this "quote" continued to be exacted long after the bishops' reign came to an end, though under the name of “ composition dues," until, indeed, the passing of the Act Geo. IV. c. 97, in the year 1823. The bishops lost their judicial powers at the Reformation in 1560. On the 24th of August of that year an Act was passed, in which it was enacted under penalties "that the bishope of Rome have na jurisdictioun nor autoritie within this Realme in tymes coming... and that na bishope nor uther prelate of this realme use any jurisdictioun in tymes to come be the bishope of Romes autoritie." This ended the bishop's quote, as well as his authority, in matters consistorial. But it was not until 1563 that the Superior Commissary Court was established in Edinburgh. Upon its establishment there was conferred on it a right to review the proceedings of all inferior courts; and its proceedings were, in turn, subject to review by the Court of Session. This state of matters continued until the Restoration of Episcopacy, when the Act of 1609, cap. 6, again bestowed upon churchmen the right to elect the commissaries; but at the Revolution the patronage of these courts again reverted to the crown, and the judicial was then permanently separated from the ecclesiastical polity of the kingdom.(0) In the year following the Restoration, instructions were issued to the commissaries with regard to confirmations, and in these it is stated, (p) after specifying what debts were to be deducted from the inventory, that if the deceased "leivand behin him wife and bairnis, gif any of the bairnis be unforisfamiliat, the testament dividis in thré partis, and the thrid of the fré geir payis quot." "Gif all the bairnis be forisfamiliat the testament then dividis in twa partis, and the half of the fré geir payis quot.” "Gif thair be na bairnis the testament dividis likewayis in twa, and the half of the fré geir payis quot." "Gif the persoun deceist be singil, and hes na bairnis unforisfamiliat, in that cais the haill fré geir payis quot but ony divisioun." In this way, as stated by Erskine, (q) the provisions of the Act (0) The Charter of Constitution is printed in Balfour's "Practicks," p. (p) Balfour's "Practicks," p. 666. (9) § 57. of 1540 were extended to the cases of persons of full age dying intestate. Another important statute for settling the law of succession was passed in the reign of Henry VI. (1617, c. 14). It is in these terms: "Our Soveraigne Lord understanding that a great number of ignorant people, the time of their sicknesse and disease, or otherwise at the making of their testaments and latter wills, do nominate certain strangers to be their executors, meaning only to commit the care of their goods, and diligent ingetting thereof, to the saids strangers, and that to the behoof of their children, or other persons who are nearest-of-kin: whereas, by the contrary, the said office of executry, by the interpretation now observed, doth carry with it the whole profit and commoditie of the defunct's part of the goods contained in testament; which His Majesty findes to be altogether against law, conscience, and equity: therefore his Majesty, with advice and consent of the estates of Parliament, finds and declares, that all executors, already nominate in any testament not as yet confirmed, or to be nominate in any testament to be made hereafter, are and shall be obliged to make count, reckoning, and payment of the whole goods and geare apertaining to the defunct, and intrometted with by them, to the wife, children, and nearest-of-kin, according to the division observed by the laws of this realm; reserving onely to the saids executors the thrid of the defunct's part, all debts being first payed and deduced, without prejudice always to the saids executors of whatsoever legacies left to them by the saids defuncts, which shall no wayes be prejudged by this present act; but the saids executors shall have full right to their saids legacies, albeit the same exceed the said thrid of the defunct's part; and in case the saids legacies exceed the whole thrid part, the saids executors shall have right to the whole legacie and no part of the thrid; with this expresse declaration, that where legacies are left to the executors, they shall not fall both the saids legacies and a thrid by this present act, but the saids legacies shall be imputed and allowed to them in part of payment of their thrid." The right conferred on executors nominate by this statute continued until abolished by the Intestacy Act, 1855. By the said Act, 4 Geo. IV. c. 97, the local Commissariat of Edinburgh was limited to the three counties of the Lothians; its jurisdiction in actions for civil debt was abrogated; its power to review the sentences of the inferior commissaries was abolished; the inferior commissariats, as then subsisting, were abolished, and in their room, each sheriffdom was constituted a local commissariat, and the power of reviewing its sentences was transferred to the Court of Session as the immediately superior judicature of appeal. By the 4 Geo. IV. c. 98, the mode of granting confirmations in all these commissary courts was regulated anew; and it provides that, in the event of the death of the party entitled to succeed before confirmation is obtained, the right to apply for such confirmation shall transmit to his nearest-of-kin ipso jure. BALFOUR'S "PRACTICKS." 15. Balfour's Career and Estimate of his Work.-After the Regiam Majestatem, no general compilation of Scottish Law was made until near the end of the 15th century, when there appeared the work entitled "Practicks, or a System of the More Ancient Law of Scotland, compiled by Sir James Balfour of Pittendreich." Sir James was a man of very varied accomplishments. In his younger days he is said to have studied divinity, law, and politics. We first hear of him in 1546 consorting with "some gentlemen of Fife" in an attempt to keep possession of the Castle of St. Andrews after the assassination of its owner, Cardinal Beaton. He does not appear to have taken part in the Cardinal's death, but soon after that event he joined those who were in the castle, and remained with them there until the castle was demolished by the French, when he and others were carried prisoners to France. Four years afterwards he escaped from France, and, on arrival in Scotland, was made "official of Lothian," and subsequently, having joined in the Reformation, was made "Rector of Flisk." In 1563 he was made a Lord of Session; in the following year, chief of the four Commissaries of Edinburgh; in 1565, a Privy Councillor; in 1566, Lord Clerk Register, and knighted; and in 1567, Governor of the Castle of Edinburgh under James, Earl of Bothwell. Upon Bothwell's death, and the Earl of Murray becoming Regent in the same year, the Castle of Edinburgh was taken out of Sir James's hands, but Murray made him a Lord of his Privy Council, Commendator of the Priory of Pittenweem, and President of the Court of Session, In 1569 Sir James was accused by Matthew, Earl of Lennox, of |