the murder of the king, Lennox's son, and was thereupon confined by Murray, but he was soon liberated without trial. Upon Murray's death in the following year, Sir James openly identified himself with Queen Mary's party, and assisted to bring about the Pacification at Perth in 1573, but soon afterwards Morton incited some ecclesiastics against him in connection with the murder of King Henry, and he was obliged to fly to France, where he remained until 1580. In that year he returned to Scotland, and, in his turn, accused Morton of having been accessory to the king's murder, and eventually succeeded in getting Morton convicted and beheaded. This, however, brought upon him the displeasure of the English Court, and through its influence he was again obliged to fly from Scotland for protection. He died in 1583.

It will thus be seen that the varied occupations in which Sir James from time to time engaged did not conduce to high attainments as a lawyer. At the present day the "Practicks" are not much referred to in practice; moreover, the work is considered to be of doubtful authority. It was not published until 1754, or 170 years after Sir James's death.

The work bears to have been published from several manuscripts, and these have been mostly, or nearly all, copies. In the preface the work is stated to contain "the Acts of Parliament from the 19th year of King James I., the Books of the Regiam Majestatem, with the Statutes of our Kings before James I., and divers other law treatises that are found in the manuscript copies to accompany the Regiam Majestatem: as also the decisions of the Court of Session as well before as after its more fixed and regular constitution in the reign of James V."

As regards succession, the "Practicks" refers to the law as laid down in the Regiam Majestatem, but does not state the changes which had taken place in the intervening period.

CRAIG'S "JUS FUDALE."

16. Estimate of Craig's Work.-The next institutional writer was Sir Thomas Craig, who was born in 1538, and died in 1608. He was educated at Paris, and was called to the Scotch Bar in 1563. In 1655 was published his "Jus Fudale," which still remains a high authority on the original fundamental principles of the feudal system. Educated in a foreign school of jurists, he might well have written a valuable

digest of Scotch Law; but, instead of arranging and commenting on the peculiar laws and institutions of Scotland, he drew their wisdom from the two great fountains of European jurisprudence -the Roman Law and the feudal customs. While his work has thus an air of scholarship and wide reading, it contains little or no practical information which would conduce to the elucidation of the present subject.

STAIR'S INSTITUTIONS.

17. Estimate of Stair's Work. The first and greatest teacher of Scotch law as a system was James Dalrymple, Lord Stair. Stair was born in 1609; was appointed Professor of Philosophy in Glasgow in 1641; was called to the Bar in 1648; was appointed by Cromwell's Government one of the "Commissioners for the administration of justice" in 1657, but resigned in 1663, because he could not take the "Declaration" oath, which denied the right of the nation to take up arms against the king. His great talents, however, induced the king to accept his services on his own terms, and accordingly, in 1671, he became Lord President of the Court of Session. Ten years afterwards he had to resign all his appointments, because he refused to take the "test" oath. He then went to Holland, where he lived several years, and on his return to Scotland, he was reappointed Lord President of the Court of Session. He died in 1695.

Stair's Institutions were published in 1681. A large portion of the work is devoted to succession, a branch of the law which Stair holds to be most important, in respect "the rights of all persons pass once, and frequently often, in every generation." After stating the division of the channel of succession into two currents, heritable and moveable, he proceeds to treat, firstly, of that which is common to succession, and secondly, of that which is proper to the several kinds thereof. Under the first head he speaks of—(1.) What natural equity holds forth of succession; (2.) What the Judicial Law; (3.) What the civil Roman Law; (4.) What the feudal customs; and (5.) What our own law and consuetude provide concerning successions, Each of these heads is treated at considerable length, and then the author proceeds as follows:18. Succession in Moveables and Immoveables." To

1 Tit. 26, sec. 23.

C

return to our customs() in succession, . . . it is divided in two branches, the one is of moveables, the other of immoveables, (s) which do as much differ as the customs of divers nations; the successor in immoveables doth only retain the name of heir, and therefore immoveables are called heritable rights, and that part of the moveables which belongs to the heir is called heirship moveable.(t)

"The successor in moveables, from the office of executing the defunct's will, express. or presumed, is called Executor.(u)

"We shall here, summarily at one view, set forth the whole matter of succession with us, which we shall more fully and distinctly follow in the ensuing titles. . .

"As to moveables, we shall not repeat what hath been said of the distinction of heritable and moveable rights, (v) whether goods or moveable debts; but shall only hold forth what becometh of moveable rights, after the owner's decease:(w) and, first, if the defunct be married, there was thereby a communion of goods(a) betwixt the defunct and the other spouse, which being dissolved by death, the survivor may withdraw(y) their share, which share is estimate by the condition of the family at that time; for if in the family there were a husband, a wife and children not forisfamiliat, (2) the wife's share is the third ;(a) but if there were no child unforisfamiliat, (b) the wife's share is the half, which is not properly a succession, but a division."

19. The Several Degrees of Succession in Moveables.' "The first degree of succession in moveables, with us, is by the will of the defunct, by his testament or codicil. . . .

"The will of the defunct is restrained with us, in three cases: the first is, bastards cannot at all test, or leave legacies, unless

they be legittimat or have power from the king of making testament, or have lawful children.(c)

“(2.) A father is bound up in respect of his children in his family, which are not forisfamiliat, (d) and provided for; these have necessarily their portion natural, and bairns' part of gear,(e) wherefrom their father cannot exclude them by legacies or otherways, as by donations, in contemplation of death, or any other gratuitous deed, done on death-bed.(ƒ) . . . And therefore a father hath only power to dispose upon such a part of his goods, which are thence called dead's part,(g) which, if he have a relict, and bairns in the family, the bairns' part is the third, the relict's part is also a third, and so the defunct's part is only a third; but if there be no relict, then the bairns' part is the half, and the dead's part is the other half; but if there be neither wife nor bairns, the defunct may dispose of the whole, as persons never married, or wives upon whom there is no restriction, (h) though they have husband or children, for they may dispose of their share of the husband's moveables, (i) or if they acquired, or succeed to any moveables, in viduity, they may entirely dispose thereof, though they have children.(k) . . .

"(3.) The third restriction of the defunct's will is in favour of their heirs of line, for heirs having the sole interest in heritable rights are by our custom justly excluded from coming in with other children, in moveables,(l) except that which is called heirship moveable,(m) which is the best of every kind of moveable,(n) wherein the defunct's will cannot prejudge the heir.(o) . . .

"The second member(p) of succession in moveables is from the intestate; so that, failing the defunct's will, with the restrictions

(c) Bastards can now make wills, § 126. See § 78 as to who can make wills. (d) See § 118.

(e) Now called legitim, § 100.

(f) This means any testamentary deed. Law of death-bed abolished since 16th August, 1871; 34 & 35 Vict. c. 81. See §§ 104-110.

(9) Explained, § 114.

(h) The moveable estates of wives not now subject to jus mariti, §§ 89,90. (i) I.e., jus relictæ.

(k) Children have now an indefeasible right in the moveable succession

of their mother, § 113; so also have husbands on the predecease of the wife, § 99.

(1) This takes place only where the heir takes the heritage by operation of law, § 123.

(m) See note (t), p. 18.

(n) As to what was included under heirship moveables, see § 51.

(0) This also stated by Erskine, see § 51; but see Bell's Prin. § 1908.

(p) This term is here used to distinguish intestate from testate succession.

aforesaid, the nearest-of-kin (q) have interest both in the defunct's moveables and office of executry ;(r) and, though they claim not the office, yet have they a right to the goods, leaving a third of dead's part to the executors for administration of the office.(s)

"These nearest-of-kin take place all in order; all the nearest degree, male or female, come in equally; (t) and there is no right of representation in moveables. (u) The first degree is children, male or female, with whom grandchildren come not in by right of representation in place of their defunct parents; so children have an interest in their father's moveables-viz., their bairns' part, (v) wherein their father cannot prejudge them and their interest as nearest-of-kin, whereby they succeed to the dead's part in so far as intestate. Next unto children are grandchildren, or any descendants of the nearest degree.(w) Next unto these are brethren and sisters, (x) wherein brethren and sisters-german or by both bloods, exclude those by one blood. Next unto brethren and sisters are their descendants in the nearest degree without representation.(y) And last are the nearest degree of agnates (2) male and female jointly without representation. If there be no descendants or agnates in the case of bastards, who can have none,(a) or others who happen de facto to have no children or agnates,(b) their goods become caduciary, and are confiscated (c) to the king as last heir, or by reason of bastardy.(d)

after them the father at common law; after him (to the extent of one-half of the succession) brothersand sisters-uterine and their descendants; and after these the kin as in the text, § 129.

(a) Bastard's children succeed to him, § 126.

(b) Mothers and brothers- and sisters-uterine and their descendants take one-third, and one-half under certain circumstances, § 129.

(c) Confiscation takes place only in the failure of the three lines of succession, and upon satisfaction of the claims of the persons indicated in note (b), § 129.

(d) See effects of bastardy, § 126; also §§ 65-67; for rules in Mackenzie's Inst. see § 33; Bankton's, § 38; Erskine's, § 53; Bell's, § 72,