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Thursday 6 Jan. 1763. - Adam Smith, Glasgow Edition of the Works and Correspondence Vol. 5 Lectures On Jurisprudence [1762]

Edition used:

Lectures On Jurisprudence, ed. R.. L. Meek, D. D. Raphael and P. G. Stein, vol. V of the Glasgow Edition of the Works and Correspondence of Adam Smith (Indianapolis: Liberty Fund, 1982).

Part of: The Glasgow Edition of the Works and Correspondence of Adam Smith, 7 vols.

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Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Thursday 6 Jan. 1763.

Having now considered the three firstj methods of acquiring property, I come now to the 4th which is sucession. By succession is meant the transference of property from the dead to the living. There are two sorts of succession, either 1st, where the succession is directed by the law; or 2dly, where it is by the testament or will of the deceased. The 1st is what I shall now consider, viz. successio ex lege.

Most writers77 on the subject of the law of nations found this method of succession on the supposed will of the deceased. The magistrate is to consider to what person he would (if he hadk made a will) have given the inheritance, and that to him as the most naturalll sucessor the estate of the deceased should be confirmed by the | publick authority. If this was realy the foundation of succession ex lege,m it would follow that in all countries where it has taken place testamentary succession must have preceded. For if the express will of the deceased directing how his estate should be possessed was of no effect, we can not reasonably imaginen that this supposed inclination should be of any, far less of greater, force. In all countries therefore succession ab intestato must have succeded testamentary succession, if this hypothesis was just. But we find on the contrary that in allmost all countries where records have been kept testamentary succession has been introduced much later than succession ab intestato. In Tartary, and the countries on the coast of Africa, there are at present certain rules by which succession is directed, tho’ they have no notion of a testament. Amongst the earlier Romans, testaments were unknown; they were first introduced by the | laws of the 12 Tables.78 Before that time one who had no heirs could not leave his estate but by a law made in the Comitia Curiata,79 which was similar to our Acts of Parliament. In like manner we find that Solon80 was the author of testamentary succession amongst the Athenians, and in our own country the people had been formed into a regular community for 600 years before testamentary succession took place. {Besides this of the real priority of the succession of the heir at law, to testamentary succession we are also to observe that the heir at law in allmost all countries is more favoured than the testamentary heir; and the testament is reckond null and void if a few formalities, etc. be wanting. This preference could never be made if the foundation of the succ. ab intest. was the presumed will of the testator: for his presumed will could not be in reason preferred to that which he had plainly expressed.o It shall likewise afterwards be shewn81 that the right of succession ex testamento is one of the greatest extentions of property we can conceive, and consequently would not be early introduced into society.—} Since, then, succession ab intestato is always prior to the testamentary succession, contrary to what would necessarily be the case if the supposed inclination of the deceased was the foundation of it, we must look somewhere else for the foundation of succession ab intestato than in the will of the deceased.

{In the age of hunters there could be no room for succession as there was no property. Any small things as bows, quiver, etc. were buried along with the deceased; they were too inconsiderable to be left to an heir.—In the age of shepherds, when property was greatly extended, the goods the deceased had been possessed of were too valuable to be allp buried along with him. Some of thoseq which he might be supposed to have the greatest attachment to would be buried, as a horse, an ox, etc.; the rest would go to the other members of the family as is hereafter explain’d. Some traces of the custom of burying goods are found long after.}

The most probable account of it is this.r82 The children and their parents all lived together, and the goods of the father were supported by the joint labour of the whole family. | The master of the family, again, maintain’d them from this stock, which as it was maintained and procured by the labour of the whole family was also the common support of the whole. The master of the family had indeed the priviledge of alienating in his life time his stock; whichs the others had no claim to; but at the same time he could not alienate it at his death. All the members of the family came in for an equall share in it at his death, as they had all contributed their assistance to the support of it. No distinction was made with regard to sex; sons and daughters equally gave their assistance to the master of the head of83 the family, and for this reason were equall sharers in his possessions after his death. {So that on the whole it was the connection betwixt the children and other members of the family with the goods of the master of it, that gave rise to their succession,t rather than the attachment of the master of the family himself, and the supposition of his will that his goods should be left to the persons to whom he was thus attached.—The members of the family did not take possession of his goods from this supposall of his will that they should do so, but they only continued their possession in what they had given their assistance in procuring and by which they had already been supported.—This is confirmed by what immediately follows.} The rules of succession have been pretty much the same in this respect in our country and amongst the Romans; excepting one considerable difference that was | occasioned by the state of the wife in the different countries. She was considered in the character of a daughter84 amongst the Romans {and came in accordingly for the same share in the inheritance as a daughter and was called by the same name, filia familias,} but is a more respectable person by the custom of this country. The reason of this shall hereafter be more fully explain’d.85 We shall first consider the order of succession amongst the Romans. We observed that the children all shared equally in the estate of the father or master of the family. But this is only with regard to those who were in the family. A son whas86 emancipated, and by that means seperated from the society, or one who had been given in adoption, one who was a captive, an exile, or capite deminutus, had no right to any part of the inheritance.87 A daughter who was given in marriage, whether she had been given with a portion or not, for the same reason took no share as she was then become a member of another society. {If she survived her husband the part of his inheritance came inu to the stock of her father, and she, as she again made a part of his family, had a claim as before for her share.} Sons given in adoption in the same manner had no part; they were already provided for by being members of another | mans family and had no occasion to receive an addition. Tho when men get the power of conveying an estate by a testament they are often more willing to give their fortunes to those who are already rich, as they are their more respectable relations, than to those who are in lower circumstances.v {This perhaps is not altogether just but it is what men are naturally inclined to.} Not only the immediate offspring of the deceased but also the grandchildren by a deceased son took part in the inheritance. (If the son was alive they had no claim, as he would get his share.) The reason of this was that in the more early and simple times when the demands of a family are few the sons do not, as in more luxurious times, seperate from the family of the father as soon as they are married; but they and their families continued in the same house and contributed their part to the maintaining a common stock. When therefore a father of a family died, the children who made a part of it succeded equally in it. But if it happen’d that a son had died and | left children, these, as they continued in the family, came in for the same share as the father would have had he lived. This connection betwixt the children of two brothers, as they all made a part of the same family, occasioned that marriages betwixt cousin germans should be looked upon as incestuous as well as those betwixt brothers and sisters. The foundation of the latter is that the great opportunity of intercourse betwixt them makes it necessary that allw hopes of union betwixt them should be cut off; and for the same reason where the brothers lived in the family of their father the like prohibition would be necessary with regard to cousins. This we find is the case; in all nations where the marriage of brothers and sisters is accounted incestuous, that of cousins–german was originally accountedx so also. This like all other customs often continues after the reason of it is at an end; it was so amongst the Romans long after the sons lived in seperate families | from their fathers. It was first altered by the people to gratify the whim of a tribune who had taken a fancy to his cousin–german.88 — Cousins german were accounted as brothers somewhat farther removed. Thus Cicero calls [calls] Quintus Cicero his brother, Quintus Cicero frater meus, natura quidem patruelis, affectione autem germanus.89 And it is to be observed <?that the words> that signify a cousin german are, as their termination evidently shows, originally adjectives. Patruelis and consobrinus, that is, patruelis vel consobrinus frater, a brother by an uncle or aunt.90 — If, for example, a master of a family dying should leave 3 grandsons by a predeceased son and, besides, two sons, the inheritance would here be divided into 3 parts; each of the sons would have a third, and each of the grandsons ⅓ of ⅓, that is, 1/9 of the whole estate. This, which <is> called sucessio per stirpes, to distinguish it from suc. per capita, seems to contradict the generall rule, propriores excludunt remotiores. But to this is answered, that they are indeed more remote and have less of the blood of the master of the family, but then they are considered here not as succeding by their own right | but as representing their father; hence it was also called successio per representationem.—In the Roman commonwealth this took place very soon, but in this country it was pretty late before it was established. This proceeded from the nature of the governments; besides severall other reasons which we shall consider hereafter, one which would be of considerable effect is that in this country it was established in favours of the nephewsy and in prejudice of the uncles,91 in favours ofz a boy and in prejudice of a man; that is, in favours of the weak and in prejudice of the strong. But on the contrary it was established amongst the Romans in favours of the strong and in prejudice of the weak; this would certainly make it much sooner and more easily brought about. A father of a family, dying, leaves a son and two grandsons by a predeceased son. The grandsons, as they had been in the same possession of the fathers stock as the son, would probably claim each an equall share in it after his death; but the uncle, on the other hand, would complain that he was by this means cut out of part of | lawfull inheritancea by his brothers death; he had not only lost his brother<s> but had a less share of his fathers fortune than had he lived. On this ground the uncles as the stronger party would get it established that they should have the same part as if their brothers had lived. But the contrary was the case in the feudall governments.

In the same manner as grandsons, great–grandsons, if their father and grandfather were dead, came in for their share. Grandsons and other descendents by daughters took no share, as they were not in the family, nor their mother.—After the succession of descendents was established, that of the nearest adgnates92 was the next that followed. By this, when a [a] man who had no children died his inheritance was given to his nearest adgnate.b This was not so much founded in the nature of things, as the families of two brothers, etc. would be seperate and the same connection would not subsist betwixt them as betwixt a father and his immediate descendents. {But tho’ it was not so much founded in the connection betwixt the heirs and the goods or the continuance of possession, yet there are severall incidents that would naturally introduce it. Thus if two brothers succeded to an inheritance, <?and> one of them [of them] died soon after, it would appear hard in this case that the surviving one should, by his fathers dying ac year or two sooner, be deprived of one half of the inheritance; this would soon produce a custom that brothers should succeed; and for the reason mentioned afterwards this would soon be extended to cousins, etc.} It was accordingly introduced by a law93 | but this, as all other[s] laws which introduce a new connection or right, as this would appear to be, was inter[re]preted in the strictest manner; so that if the nearest adgnate did not choose to accept, it was not offered to the next nearest but was immediately seized by the fisc.94 This afterwards was extended to the agnates as far as the 7th degree of their reckoning; afterwards the praetor, who was the judge of equity, gave the offer of it in like manner to the cognates to the 7th degree also. {d From the inclination we naturally have to square and compleat every thing, even when by this means we stretch the originall constitution; and thus it is that all laws that found any new right become in time of extensive interpretation.) But in all cases when there was no heir the fisc. claimed the inheritance, that is, it was adjudged to the publick, which always takes to itself all goods that have no master to prevent the scramble that would be made for such goods and the confusion that would ensue one this scramble. In the same manner in this country the superior, or if there be no other the king as the ultimus heres and superior of all lands, takes all inheritances that are without a representative. {It is to be observed that originally the successio per stirpes did not take place in the collateral succession. If a manf dying intestate left a brother and two nephews, the brother took the whole inheritance. In the same manner nephews excluded cousins german and they again second cousins. If a man had 3 nephews by one predeceased brother, 2 by another and 1 by a third, these would each take ⅙th part, as the inheritance here was given per capita; and neither succession per stirpes nor per representationem was allowed to take place. Justinian afterwards allowed that it should take place for one degree, that is, that nephews should come in with the brothers, cousins with nephews, etc. and so on.95 The reason that [v.100] successio per stirpes was not allowed amongst collateralls was that by this means the inheritance would be reduced to such small portions as would hardly be worth accepting. A man might easily <have> 20 or 30 cousins german and 40, 50, or more 2d cousins.}

| In the earlier times, a son or any child could acquire nothing to himself as long as he made a part of the fathers family; all the produce of his labour went into the fathers stock, and when he died all that he might perhaps possess at that time fell back to the father as his own property. Emancipated sons indeed might have property of their own seperate from the fathers, but this the father at their death claimed, not as being the nearest of kin, but as being the patron, in the same manner as patrons claimed the inheritance of emancipated slaves.—Julius Caesar afterwards established in favours of his soldiers that what one acquired by serving in war should belong to them intirely without any claim on it by the father. This was called peculium castrense.96 The same was afterwards established with regard to what they acquired by the practise of the liberall arts. These, being less connected with the father, could be more easily seperated from him, and the same holds with regard to the pec. adventi.97 — Of all these the son had the power of disposing by testament. | It was necessary therefore that as the father had not the property of these, [that] it should be establishd that he should suceed as heir at law, as the son would be supposed to incline that his father should suceed if he had no children of his own. It was therefore 1st established that the father on the death of his son who had no nearerg heirs should take the whole inheritance. {This was afterwards extended to grandfathers, etc.} And it is to be observed that this succession, which is calledh successio ad scendentiam,98 would take the preference of the collaterall succession, as the father is more nearly connected with the son than the brothers were with one another; there beingi a step betwixt the brothers, whereas there is no intervening one betwixt the son and the father.99 In this manner it continued till the time of Adrian, when, divorses being become very frequent, it often would happen that the husband and wife did not live together but had seperate families and seperate estates. It was therefore enacted that when a son died his fortune should be equally divided betwixt his father and mother.1 If either of them happened to be dead the | sucessio secundum lineas took place. That is, ifj the father should dye, and leave a father and mother behind him, the one half went to the mother and the other half was equally divided betwixt them, and so on, always going to the immediate ascendents of the person who if alive would have had the inheritance. This excluded collateral heirs even when they were nearer than the ascendents.—It followed also from the frequency of divorce that as the mother had also a seperate aliment from the husband so she could leave it as she pleased; andk her children were considered as her heirs at law. So that at the same time that the mother came to succeed to her son, the son had also the benefit of inheriting from his mother.

Of all these three methods of succession, viz of descendents, collaterall, and of ascend[end]ents, the first would take place long before the others; it is evidently founded on the connection betwixt the heirs at law and the goods of the defunct. The other two are not indeed founded on the same principle, but on the supposed will | of the testator;2 which as we saidl could not be the case with regard to the succession of descendents. This sort is, as we said,3 in all countries prior to testamentary succession; the others again are always posterior to it and so might very probably take their arise from it and the supposall of the testators inclination in such cases as [as] he had made no will.

I shall now proceed to consider the order of succession which has prevailed in modern countries. We will find here that the succession to moveables is founded on precisely the same principles and has been in most respects the same as the order of succession in generall amongst the Romans; and indeed during the allodiall government of Europe the succession to land estates was directed in the same manner.

We shall then consider 1st the order of succession to moveables. The father of the family dying, the moveable goods he had possessed were divided into 3 equall parts. One of these was given to the wife, another was | divided amongst the children {and for the same reason grandchildren by sons who were in the family, if any were, perhaps I think took part.} The 3d part was considered as the part of the deceased; this part was at first laid out in charitable purposes to get mass said and other things of that sort, that they thought might tend to the quiet rest of the souls of the deceased, {as these appeared then to be the method in which he would incline to dispose of it.} But when these superstitious rites fell into disrepute, and the maintenance of the children appear’d to be the most pious use it could be applied to, this part also was given to the children, {except a little still reserved for those pious use<s>.} This division appears evidently founded on the same principles as the division amongst the Romans. The family was considered as consisting of 3 parts during the husbands life time, each of which had their share in the possessions, and this was still continued after his death, {this manner appearing to keep up in the most proper way the communio bonorum that before subsisted — — —m and it was this third part alone that the father, after testamentary succession was established, could alienate by any deed at his death, altho in his lifetime he could spend every shilling of what should haven <been> the common support of the family; in every case,o excepting that where the estate which had been left him was under the care of tutors.—The wife again had not the power of alienating any part during her husbands life, any [v.105] more than the children, all they poss<ess>ed falling back into the common stock. — — —} That this division also was founded on the connection of the children with the fathers goods, and not on the connection betwixt them and the deceased himself, will appear from this, that daughters who were given in marriage and were by that means no part of the family, had no share in the bairns–part, | as it is called in this country. In the same manner as emancipated sons amongst the Romans, so forisfamiliated4 sons who were precisely similar to them amongst us formerly took no part in the inheritance.—They were called so because for the convenience of both parties they did not live in the same house with their father, but having settled in some other place were no longer considered as a part of the family, and this without any distinction betwixt those who had received a portion at their removall from the family and those who had not; neither of them had any claim to a share of their fathers inheritance. It has indeed been establishd some time ago that a son shall not be esteemed as compleatly forisfamiliated unless he has given his father a compleat discharge of his share of his fortune.—p In this case he has no claim for any share. But if he has not given this discharge, altho he has received a portion at his leaving the family, heq is then to bring | his portion into what is called in England hotch–pot,5 that is, he is to join with the bairns part of the inheritance and take his share of the whole as if he had no portion before. Thus if an emancipated son had receivd a portion of 100£, <and> his father dyes worth 1500£ leaving 3 children besides, the bairns part is 500; to this he joins his 100£, and each of the 4 will have 150£. These statu<t>es, as they enact that a son shall not be considered as forisfamiliatedr unless he has given his father a discharge,6 show that formerly this word was of a more strict sense and that those who had left the family, whether they had received a portion or not, were considered as intirely forisfamiliated, and this is what the word itself seems to imply.

In England we will find the progress of succession has been very nearly the same.s [The cannon law was whatt regulated succession amongst them and this being chiefly founded onu the novells | of Justinian the order of succession was the same in most respects as that established by the 18 and 19 novell.7 — This was the legall distr] In the first periods the bishop[s], who was the ordinary in these matters thro the greatest part of Europe, had the distribution of every inheritance committed to his care; and as he was a holy man and therefore not considered as capable of acting amiss, he was not accountable to any one. But in time, when they had greatly abused this power, giving to themselves, that is, to the church, a considerable part of the estate in prejudice of the creditors, it was found necessary in the time of Edward the 1st. to make the ordinary accountable <to the> creditors.8 This throwing a great deal of trouble upon them, they constituted commissaries to settle the distribution of inheritances; but these they made accountable to themselves for their administration, and by this means they insured | themselves of their share. To prevent this it was enacted that no onev appointed commissaries should be accountable to the ordinary.w But as the ordinary had still the power of choosing whom they pleased for their commissaries, these good bishops, who do not easily quit their power, used not only to make an agreement with the commissary beforehand in what way he should settle the inheritance, but even took surety for him, or made him out of his own private fortune disburse the summs they wanted to apply to their own uses, and left him to reimburse himself out of the inheritance, under the pretext of those pious uses. To prevent these contrivances it was also farther constituted that no one could be appointed a commissary but those who were nearest of kin to the deceasd. But as there might often be a considerable number in the same degree, as 6 or 7 brothers, 20 or 30 cousins, the ordinary had still an | opportunity of choosing whom he pleased of this number; and might in the same manner make a bargain with him beforehand. To prevent this, a constitution settling the distribution of goods <?was made> pretty much in the same manner as it is in Scotland.9 Before this regulation, the rule by which the ordinary called the relations to the inheritance was that establish’d by the cannon <law>, which being chiefly founded on the novells of Just. the method would be that appointed in the 19 novell.

The chief difference betwixt this distribution and that settled amongst the Romans was the great share the wife took in the inheritance. This arises from the difference betwixt the Christian and Roman marriage. Amongst the Romans the husband had the power of divorcing his wife on any pretence he thought proper. (This was indeed afterwards restraind to certain causes and the same priviledge granted to the | wife.) And divorces were always so frequent that the wife was greatly dependent on the husband and could not be considered as having any great connection with his goods. But some time after Christianity was established, marriages became almost indissoluble, as no divorce could be granted but by the spirituall court on account of some great transgressions. This rendering divorces not easily obtainable gave the wife a more respectable character, rendering her in a great measure independent on the husband for her support. She was accordingly considered as a considerable member of the family, who had the same interest in the common stock as the master or the children; and from this it was that the wife after the demise of her husband came in for the same share as either of the other two parts of the family. — — — — —

Another considerable odds arose from the difference of the constitution of the two states. — — The greater and lesser noblesse, i.e. the nobility and the gentry, were the only persons who could | have any thing to suceed to, as they indeed were the only ones who had any property. It is well known that the tenants were then in a state of villainage or slavery, and had no property of their own; whatever the<y> acquired went to their masters. It is as certain, tho’ not equally known, that the burghers and traders in towns, tho they might have some greater liberties, were also in a state of villainage. This is evident from the charters granted them in the earliest times, in which they have granted them the right of marrying when and whom they incline, of giving their daughters in marriage and succeding to estates, and other such likex that plainly show those who [who] had them not must have been in a state of abject slavery; and in fact all the buroghs were absolutely dependent on the king or some of the great men in the neighbourhood. The only persons, then, in this state of the country, who had any thing to leave behind them were the | greater and lesser noblesse. The lower people would probably live in the same manner as the poorer sort in other countries; the sons would not leave the house of their fathers after marriage but [the] all theiry families would form one society. But they could have no weight in the establishment of succession as they had nothing to succeed to. The noblesse, on the other hand, who were alone capable of inheritance, were of too considerablez a fortune and genteel appearance to admit of two families living in one society. That way of life would not suit with the pomp and state they had to maintain; {nor did the grandchildren after their fathers death return with their mother into their grandfathers family, but continued with their mother in their fathers house.} The law of sucession, as it must be ruled by their convenience, established succession in such a manner that those sons who were thus forisfamiliated should take no part of the succession, and far lessa could successio per stirpes take place when the parents had no right to the succession. Thus it was that the right of representation did not take place atb those countries where | thesec customs prevailed. This rigour has however been softened with regard to the forisfamiliated sons in this country, and in England their children are allowed by order of succession to take their fathers part; this has not [yet] been introduced in Scotland as yet tho it may probably soon be extended to them also.

Another considerable odds that subsists betwixt the Scots law and the civill arose from the method of succession established by the feudall law in the succession to indivisible subjects; by the feudal constitution, as shall be explaind hereafter, the collaterall succession is preferred to that of ascendents. And from hence they imagined that collateralls were nearer to the inheritance than ascendents, and called them to the inheritance before <?> ascendents whatsoever. In this country, therefore, if a man dyes his brothers succeed him, altogether excluding his parents of either sex. In England it is otherwise. If he leaves a father, he takes the whole inheritance; and if he leaves a mother, she | comes in equally with thed children.10 —There is this difference alsoe betwixt the Scots and English law, that in Scotland the successio per stirpes never takes place; but in England grandsons come in for their fathers share. This difference, as well as an other that is made by the statute of distribution,11 are borrowed from the novells of Justinian by which those statutes are generally directed [by]; the difference is that in collaterall succession representation does not take place, whereas it is allowed in England in the same manner as we mentioned that Justin. had permitted it.

[j]Numbers written above the last two words indicate that their order was intended to be reversed

[77 ]e.g. Grotius, II.7.3; Pufendorf, IV.11.1; M’Douall, III.4.1.3.

[k]‘been’ deleted

[l]‘heir’ deleted

[m]‘the’ deleted

[n]Replaces ‘suppose’

[78 ]Heineccius, II.10.2,5.

[79 ]A popular assembly based on kinship groups.

[80 ]Montesquieu, V.5, citing Plutarch, Life of Solon [21].

[o]‘and’ deleted

[81 ]149 ff. below.

[p]‘together’ deleted

[q]‘on’ deleted

[r]‘As’ deleted

[82 ]Cocceius, XII.281.

[s]‘priviledge’ has been interlined here and then deleted

[83 ]Sic. Probably ‘the master or head of’ was intended.

[t]‘and’ deleted

[84 ]The reference is to marriage cum manu, whereby the wife left the power of her own father, and consequently lost her right to succeed to a share of his estate on his death, and became subject to the authority (manus) of her husband, to whose estate she acquired a similar right of inheritance as that of her own daughters. This form of marriage, common in early Rome, was rare by the end of the Republic: Heineccius, III.1.5 ff.

[85 ]110–11 below.

[86 ]Sic. Presumably ‘who was’ was intended.

[87 ]Emancipation was the voluntary release of a son from his father’s power; capitis deminutio was the loss of either freedom, citizenship, or family status.

[u]The last two words replace ‘returned’

[v]‘and we’ deleted

[w]‘intercourse’ deleted

[x]‘amon’ deleted

[88 ]Montesquieu, XXVI.14, citing Plutarch, Quaestiones Romanae [6; he is not in fact said to have been a tribune]. For the modification of the rule prohibiting marriage of first cousins, see Livy, XLII.34; Tacitus, Annals, XII.6.

[89 ]De Finibus, V.1; Cicero refers to his cousin Lucius Cicero as frater noster cognatione patruelis, amore germanus (‘my cousin by blood, my brother in affection’).

[90 ]Patruelis strictly indicates a cousin by a father’s brother and consobrinus a cousin by a mother’s sister, but the latter term was extended to cover all cousins–german.

[y]Replaces ‘weak’

[91 ]Dalrymple, 169.

[z]‘the w’ deleted

[a]‘that’ deleted

[92 ]Agnates were those descended from a common ancestor exclusively through males, whereas cognates were any blood relations.

[b]Illegible word deleted

[c]‘year’ deleted

[93 ]The Twelve Tables: Heineccius, III.2.3.

[94 ]i.e. the treasury: aerarium in the Republic and fiscus in the Empire.

[d]‘But’ deleted

[e]‘such a’ deleted

[f]Replaces ‘brother’

[95 ]Novel 118.

[96 ]Property acquired by the son during military service. It was first treated as belonging to him by Augustus, Inst. 2.12pr. Smith may have been misled by Heineccius, II.9.2, who refers to Julius Caesar in this connection.

[97 ]Bona adventitia, property inherited by a child from his mother, which he could keep for himself.

[g]Reading doubtful

[h]‘direct’ deleted

[98 ]i.e. successio ascendentium, succession of ascendants.

[i]‘but one’ deleted

[99 ]The degree of relationship of collaterals was calculated through the common ancestor, brothers being two degrees apart, uncle and nephew three.

[1 ]The senatusconsultum Tertullianum, said to be of Hadrian’s reign (Inst. 3.3.2), gave the mother a claim to her son’s estate, but it was subordinated to that of the father and that of the brothers. Succession of ascendants by ‘lines’ was the product of Justinian’s Novels 118 and 127. Earlier, Justinian had allowed the mother to share with the brothers: C. 6.58.14.

[j]Replaces ‘when’

[k]‘the’ deleted

[2 ]i.e. the deceased intestate.

[l]Two or three illegible words deleted

[3 ]91 above.

[m]Three short dashes in the MS., presumably indicating an omission

[n]The last two words replace ‘was to be’

[o]‘unless’ deleted

[4 ]Forisfamiliation, the Scots equivalent of emancipation, was the separation of a son from his family when he set up house on his own.

[p]‘But’ deleted

[q]‘has still’ deleted

[5 ]In Scotland called collation.

[r]‘till’ deleted

[6 ]Not statutory but a common law rule in Scotland: M’Douall, III.8.1.16. The principle of hotchpot was enacted in the English Statute of Distributions, 22 and 23 Charles II, c. 10 (1670).

[s]The passage in square brackets which follows has been struck through. It ends in the middle of the fourth line on 108, and the remainder of this line is left blank.

[t]‘they’ deleted

[u]‘succession’ deleted

[7 ]Novel 118.

[8 ]13 Edward I, c. 19 (Statute of Westminster II, 1285); cf. Kames, Essays, IV (‘On Succession or Descent’), 177.

[v]‘should be’ deleted

[w]The last six words replace ‘but the nearest of kin to the deceased’

[9 ]22 and 23 Charles II, c. 10 (1670); cf. Kames, Essays, 180.

[x]‘those who’ deleted

[y]The last two words replace ‘whole’

[z]Replaces ‘genteel’

[a]‘that’ deleted

[b]Reading doubtful

[c]Reading doubtful

[d]‘rest’ deleted

[10 ]With her children; 1 James II, c. 17 (1685) allowed the intestate’s mother to share with his brothers and sisters.

[e]‘that’ deleted

[11 ]22 and 23 Charles II, c. 10 (1670); 110 above.