Econlib

The Library

Other Sites

 Front Page arrow Titles (by Subject) arrow Monday Jan. 10th. 1763 - Glasgow Edition of the Works and Correspondence Vol. 5 Lectures On Jurisprudence

Return to Title Page for Glasgow Edition of the Works and Correspondence Vol. 5 Lectures On Jurisprudence

Search this Title:

Monday Jan. 10th. 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.

About Liberty Fund:

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


Monday Jan. 10th. 1763

The method of succession therefore to all subjects, indivisible as well as divisible amongst the Romans, and to divisible subjects amongst the modern nations of Europe, for in most of them succession (ab intestato) is governed by the same laws, {There are indeed some varieties. In Blank in MS.f females are not allowed to succeed. This is said to have been the case in Athens; but it is somewhat uncertain.12 In Rome we know females came in for the same share as males.} is intirely founded on the communio bonorum. This was the rule formerly in all the nations of Europe; the subjects of the deceased of all sorts were equally divided by the children. {The Goths, Hunns, Vandals, etc. all used that method of succession.} But now a different method is introduced, | I mean the right of primogeniture. As this method of succession, so contrary to nature, to reason, and to justice, was occasioned by the nature of the feudall government, it will be proper to explain the nature and temper of this constitution or form of government, that the foundation of this right may be the more evident.

When the barbarous nations of the north overran the Roman Empire, and settled in the western parts of Europe, property came to be very unequally divided. At the same time all arts were intirely neglected. This threw a great share of power into the hands of those who possessed the greatest property. It will be evident also that the balance of property will make those who are possessed of it have a far greater superiority in power, than the same share of property will give one in a more refind and cultivated age. In these times one who is possessed of 10000£ sterling per year may | be said to possess what would maintain 1000 men; if he was to restrict himself to a moderate allowance such as is necessary to support a man andg furnish <?him> with food and cloathing. But we see that this is not the way men use their money. This ten thousand pound maintains only the man himself and a few domestic servants. The arts which are now cultivated give him an opportunity of expending his whole stock on himself. He has architects, masons, carpenters, taylors, upholsterers, jewelors, cooks, and other minissters of luxury, which by their various employments give him an opportunity of laying out his whole income. He gives nothing away gratuitously, for men are so selfish that when they have an opportunity of laying out on their ownh persons what they possess, tho on things of no value, they will never think of giving it to be bestowed on the best purposes by those who stand in need of it.13 Those tradesmen he employs do not think themselves any way indebted to him; they | have given him their time and labour equivalent to what they have received of him; and tho they may reckon it a small favour that he gives them the preference in his custom, they will not think themselves so greatly indebted to him as if they had received a summ from him in a gratuitous manner. This manner of laying out ones money is the chief cause that the balance of property conferrsi so small a superiority of power in modern times. A tradesmanj to retain your custom may perhaps vote for you in an election, but you need not expect that he will attend you to battle. On the other hand whenk the western parts of Europe were first possessed by the barbarous nations, arts were in a very low state. Architecture and masonry were almost unknown; the men of the greatest property lived in houses little better than those in the remotest parts of this country. The other arts were all proportionably uncultivated. It was impossible for a man in this state, then, to lay out his whole fortune on | himself; the only way his14 had to dispose of it was to givel it out to others. A man then who possessed a property equall in value to 10,000£ at this time would be able to maintain a thousand persons. This, as it rendered the whole of these people dependent on him, would give him vast authority. The lands he possessed could not easily be disposed of any other way than by parcelling them out to others; the possessors of these farms pay’d a small rent to the possessor rather as an acknowledgement of their dependence than as the value of the land. This rent again he could dispose of no other way than by bestowing it on those who came to his table. The rent of the land was accordingly paid in victualls; and the term farm lands signifies properly lands which paid victuals for their rent; the word farm signifying in the old Saxon or German language victualls;15 feu lands, feodum or feudum signifying lands that were held in another way afterwards to be explained. These farms, as the lord or great man could not consume them all himself, were eat about his house by those whom he enter|tain’d, and often a great part by the very tenents who had payd them. Hospitality was then such as we can now have no notion of; the lord entertain’d ordinarily about his house for 3, 4, 5, or 6 months in the year all those who held their lands of him. {And in the same manner as the lesser lords entertain’d their vassals, so the greater ones entertained them, and the king again those who depended on him; for (as shall be hereafter explained<)> the different lords were in time dependent on each other.} We read that the great Earl of Warwick dined at his table in his different manors in the country about 30000 persons every day in the year, of his dependants; this was in the reign of Hen. 7th16 It is told too in commendation of the famous Thomas Becket, who lived in the time of Henry the 2d, as a piece of great luxury and nicety, that he had always the floor of his hall strewed with rushes,17 that the nobles and great men who dined with him might not dirty their cloaths as they sat on the floor. This may at the same time shew us the immence hospitality of those times, and the great want of all sorts of arts that was amongst them. And if they were thus barbarous in the time of Henry 2d we may conjecture what must | have been in the time of Alfred or Edgar, in comparison of which those of the Henry’s were polite and cultivated.—The hall of William Rufus, now called Westminster hall, is three hundred feet long and proportionably wide, and was then not reckoned too large for a dining room to him and the nobles who attended his court. As the dependents were in every respects so entirely maintain’d by these allodiall lords (as they were called) for maintainance and every thing they enjoyed, it was naturally that they should attendm him <in> war and defend him when injured by the other lords or their dependents. And they were constantly about him, whether in peace or in war; in peace they were entertained at his table, and in war they were his soldiers. These vassalls, in the first establishment of this government, possessed their lands during the pleasure of their lord, and might be turned out by him on neglecting their attendance in war or any other transgression, and their farm given to any one the lord inclined. In this state they | continued for some time, till by the demand of the tenants and to secure their service, the lords granted them for lives, one or more as was agree’d. {These sort of farms that were held for a life were called beneficia, benefices, as those that were for pleasure were called munera. From this it is that the livings of the clergy were called benefices, as they are settlements for life.18 } Conrad the second, the German emperor, was the first who introduced the perpetual tenure, which was called feudum.19 In his expedition into Italy, his soldiers (that is, his tenants, for then there were no others) complained that as they were going on a dangerous expedition into a distant country from whence it was uncertain if they should ever return, the wives and children of many of them would be intirely ruined. To satisfy these complaints and make them easy as to their service, he assured them that their wives and their posterity should be certain of the possession of those lands. This custom was soon diffused over the rest of the west. There is no mention of the word feodum in the English law till a few years after the Norman conquest, nor in the French till after the time of 50 or 60 years after Conrad. These periodsn are all somewhat posterior to that of the | introduction of perpetuall possession of lands by Conrad, abovementioned, and shew that the generallity of writers on the origin of the feudall government are mistaken when they give out that the feus were establish’d immediately after <the> destruction of the Roman Empire by the barbarians, as it was in the 5tho century before these feus were introduced in Germany and some other countries, and abou<t>p 500 and some more before it was established in Britain.20 After this time (as was hinted above) came in the distinction of the words feudum and allodium. Allodium is a barbarous word of uncertain etymology,21 signifying a farm or possession of any sort, exactly synonymous to the Latin words praedium or fundus. But when the feuda, feoda, now called fee lands from the word feu or fee, signifying a rent or hire (as a servants fee) <?>, those lands were denominated allodia that were free from this burthen and were held without any rent. At the same time the words which denoted the possession or holding of a farm were in like manner | altered from habere, possidere, to have, to possess, to tenere, to hold. This method of holding land soon spread over the most part of Europe, for such causes as it was begun in Germany. In process of time, too, when some of the lesser lords were incroached on by others and were not able to defend themselves, they had no other way of obtaining assistance but from other allodiall lords of greater power. This they could not obtain without some concession, and the one they agreeed to as most common was that they should hold their lands in feu from them. {This too was a less concession than if they had subjected themselves to hold of himq lands as munera or beneficia. Besides in these barbarous times they are always very ready to come under contracts,r possibly because they have no very strict notion of the obligation they are under to keep them.} These greater lords again being afterwards in danger from others or a combination were induced as their last resource to ask assistance of the king, and obtain’d it on the same conditions, viz. that they should hold feu of him. By this means it was, that in about 500 or 600 years after the destruction of the Roman Empire all the west of Europes was brought under the feudall government.

{N.B. it will be proper to read what is said of jurisdiction before the burthens the lords or superiors imposed in order to maintain their authority, as it is the end of this account.}t

| It is to be observed thatu this form of government required that the possessors of estates should attend their lord in war, or in council in peace, so it was requisite that every estate should be filled by one who was able to perform those duties. Hence it came soon to be established that when an estate fell to a minor, the lord considered as his tutor took it up and disposed of it to some one who was capable of serving him. By this means the burthen of ward was introduced. Andv this view of considering the lord as the tutor of all the wards of his vassalls introduced also another burthen. For as it would seem a high affront for the pupil to marry without the fathers consent, so in this case it would seem somewhat more than affront, an heinous injury, for the pupil to marry without the consent of his lord and tutor who had the sole management of him. By this pretext, and also as they gave out that no one might marry into a family that was in enmity with the lord and by that means be withdrawn from his allegiance, they established | the burthen of marriage on the feudall vassalls, by which no man could marry without the consent of his superior. In the same manner as the burthen of wardenage was established, so likewise that of marriage; for as a woman could not discharge the duties of a vassall, it was necessary that the man she married should be one willing and able to perform these duties. For this reason it came also into use that no heiressw could marry without the consent of the superior of the estate.

As the lord had once got the estate of a minor into his power, and as there was a procedure at the lords court necessary to reinstate the pupill when he came of age, the servants of the king or lord must be satisfied for their trouble, and such was their rapacity that it was necessaryx to settle what this summ should be, and this was in some places a | years, in others two years or more years rent. This was called the burthen ofy relief or sufferage. Besides these it was always taken for granted that failing of heirs the estate or feu should fall to the lord, or be escheated22 to him.—By these means all lands came at length to be holden primarily of the king and under him under the superior lords, with the burthens 1st, of Hommage, that is, being his man or servant on all demands;z 2d, of Fealty or fidelity to him; 3dly, of Knights Service, or the burthen of serving him in his battles; 4th, of Wardenage; 5th, of Marriage; and 7th,a of Relief; and 8th, of Escheat.

It is to be observed that this government was not all23 all cut out for maintaining civill government, or police. The king had property in the land superior indeed to what the others had, but not so greatly superior | as that they24 had any considerable power over them. The only person who had any command in the remoter parts of the kingdom was the superior or lord. How then should one recover a debt at a distance, a merchant at London, e.g. from one residing at York? Or in Scotland, how could one have any thing restored to him at a distant place; when in neither case the king had any standing army, nor garrisons, nor in Scotland were there any towns than the poorest village in the Highlands. If he should send the kings messenger they would hang him up without delay, and the king could have no redress but by a civill war carried on betwixt him and the chieftan. The only method was to gain the good will of the lord; he, if he inclined, might by raising what they called the posse comitatus25 give him restitution; if not there was no remedy. By | this means it was established that all the lords and great menb {The chief of the feudal ones likewise, as their possessions were sometimes as large as the others, had often the jurisdiction in their grounds as well as the allodiall — —} who held of the king should exercise the right of jurisdiction in their own country; allmost all the great men had this right. Till the time of the Rebellion in ’45 Mr. Cameron of Lochiel26 was in the common practise of exercising this priviledge, and even hanging or illegible wordc any offender. Thus al the lords held of the king by Hommage, Fealty, Knights Service, Wardenage, Marriage, Relief, and Escheat, having the same rights and that jurisdiction over their vassals.—We shall afterwards shew how the right of primogeniture <?>.

The severall great allodial lords (and the chief of the feudall in some measured ) were in all respects to be considered as little princes in the kingdom. (The feudalls indeed paid a small acknowledgement to their superior, and were subjects to severall burthens | but still their power was very great.) They made regulations in their territories, exercised[sed] jurisdiction on their vassals, and that frequently without any appeal to the kings courts. They had the power of carrying their vassalls to war and concluding a peace with their enemies. The law at that time (as we shall explain when we consider the origin of government) did not provide, nor indeed could it, for the safety of the subjects. Each principality, as they may very well be called, being in much the same state as the greater and lesser princes of Germany at this day, provided for its own defence; if they repulsed their enemies by their own strength so much the better; but if they could not they had no resource but to call the assistance of some of the neighbouring lords, or of the king, who was equally bound to defend his own territory, and if he was not able of himself and his vassalls he must in the same manner call the assistance of some of his allodiall lords. In this state a small property must be very insecure, as it could not defend itself and must be entirely depen|dent on the assistance of some of the neighbouring great men. Nowadays, thee smallest property is as secure as the greatest; a single acre is as securely possessed by its owner as 10000, and as the law takes the defence of property under its protection there could not in this condition be any hazard in dividing an immoveable subject into as many parts as one inclined. But as the only security in the other case was from the strength of the possessor, small property could be in no security. If therefore an estatef which when united could easily defend itself against all its neighbours should be divided in the same manner as moveables were, that is, equally betwixtg all the brothers, it would be in no state of equallity with those to whomh it was before far superior.

It has always been found a most detrimentall practise, and one that tended most to weaken the kingdom, to divide it amongst the children of the deceased king. This was the practise in France during the two first races of its kings. The whole kingdom was divided amongst | the sons which the preceding king had left. E.g. if a king had left two sons, each of thesei took a half of the kingdom. But tho their territories were thus seperated, therej were in the dominions <?of> each enemies to their sovereign. The brothers, being both bredd at their fathers court, would have formed acquaintances and friendships with the noble men thro the whole kingdom. When therefore the kingdom was divided there would be a party in each court formed for the other brother. They would by all means encourage and incite him, who was naturally enough disposed, to free them from a king they did not like and take the whole kingdom to himself, which he well deserved. While this was going on in the court [of the court] of one, the same schemes would be brewing in the others dominions, the same incitements and the same encouragements of assistance would be given him. In this manner civill wars betwixt the brothers were almost unavoidable, till the whole was brought into the power of one. We see accordingly that in the times of the two first | races of French kings, after the death of a king there were frequently 5 or six different sovereigns, but in 4 or 5 years at most they were reduced to one, and this surviving king was not only the conqueror but the murtherer of his brother. The same badk consequences whichl attended the division of a kingdom amongst the sons, would attend the division of an allodiall estate. The Gordon estate, or the Douglass one, could when under one head support itself against the neighbours, the Frasers e.g., but had this estate been divided amongst 7 or 8 sons, no one of these portions could have supported itself against the neighbours, or against the designs which would be formed amongst the others, without subjecting himself to some of those powerfull neighbours, who were able to defend him against injuries and perhaps could cope with the king himself. {It is to be remarked, then, that it was not the introduction of the feudal government and military fiefs that brought in the right of primogeniture; but the independency of the great allodiall estates, and the inconveniencies attending divisions of such estates. The time indeed of the introduction of this right and that of the milit. fiefs coincide pretty nearly, as it was not till about that time [v.133] that the inconveniencies attending on the division of these lands were sufficiently experienced so as to shew the necessity of introducing a practise so contrary to nature, and which met with so many other obstacles. The allodial government, as it subsisted only for 3 or 400 years, did not afford sufficient time for this. But after the introduction of the feudal govern., altho the great fiefs were not so independent yet they were almost equally liable to those inconveniences which had begun this right amongst the allodial estates.} But notwithstanding all these inconveniencies, the right of primogeniture wasm not established for | a considerable time after the introduction of the allodial government. But when the abovementioned inconveniencies had been for some time endured, it was found proper that the land estate should be given to one of the sons. When this was agreed on there was no doubt which of them should be preferred. The distinction that determined the choice must be something that could not be called in question; it could not be beauty nor wisdom, nor strength; these were all disputable; it would ben seniority. This could always be known without any doubt. {Besides this, in barbarous nations where literature is little cultivated and wisdom can only be got by experience, age is much more respected than when letters, conversation, and other artificiall methods of acquiring knowledge are introduced. Father is the most [is the most] honourable title one can confer on another. Brother, makes one his equall; son,o his inferior. Age is so much respected by some nations that the succession is not to the eldest son but the eldest of the family. Amongst the Blank in MS.p Tartars at the death of the [v.134] king, a meeting is held to choose a new one, but this is no more than to enquire which is the eldest of the royal family.} This right however was not introduced very early, and no wonder; the younger brothers would think it very hard that they should be entirely excluded from their fathers inheritance and instead of being the equalls should become his subjects and dependents. The people too would be apt to take part with them and facilitate their seizing a part to themselves. By this means it was not till the 10th or end of the 9th. century thatq this right was introduced into generall | practise. We find that some of the lands in the end of the Saxons government were succeded to in this manner, {as the estate of the great allodial lords Leveric and Alric}27 but many more continued as formerly to be divided in the manner called Blank in MS.28 equally betwixt the sons. We mentioned before29 that this was continued for 2 races of kings amongst the French. In the later reigns of the second race it was more and more adhered to, and at length was firmly established. — —

But whatever difficulties there were in the introduction of the right of primogeniture, there would be far greater in the introduction of the right of representation or succession per stirpes. {It would even be impeded by the right of primogeniture being introduced before, as on that account the injury done to the sons would appear to be far greater.} If it was hard that the eldest son should exclude his brothers, they would think it hard that their nephew should exclude themr after his death. That he who should naturally owe his safety and depend on them for his protection should be not only not dependent on them but, on the other hand, that they who were men should be subjected and dependent on one who might often | be a minor or an infant. {They would say, that by his repre<se>nting his father they could understand nothing but that he represented him in affinity; in age he could not represent him. His father was prefered on account of his seniority; but he had no such claim.} By these and such like motives the younger brother would be prompted to deprives their elder brothers children of the right of inheritance, and by this means it was long after the introduction of primogeniture ere the right of representation took place. The succession of the collateralst also was found to have its hardships as well as that by representation. {It often occasiond great disputes and contest about the succession.} It appeared hard that the minor should be deprived of the best part of his fathers inheritance because his father had died a few years before; had he survivd his brothers he would have inherited the whole without dispute. If he was of age to form any hopes, he must have formed a reasonable expectation ofu succession to his father.—It was objected also that one in this age could not perform the necessary duties to the superior. We see accordingly that this right was introduced by slow degrees and with con|siderable difficulty. The sentiments of the people were often divided betwixt those who claimed the succession on these different titles. The author of our old Scots law–book, the Regiam Majestatem,30 states it as a question, which had puzzled him not a little, whether the son of the deceased father or his brother should inherit his estate. For my part, it would seem rather that his son should retain the possession,v and especially if he had done homage for the land to his superior. But in all cases, says he, it may be decided by single combat. The uncertainty of this right it was which gave occasion to the dispute betwixt Bruce and Baliol.31 The latter, by our account, would have the undoubted right, being come of the eldest daughter. But in that time the opinion, as we learn from the foreign authors who mention this dispute, was rather in favours of Bruce, as being a step nearer to the common stock. And Edward 1st gave sentence in favours | <of> Baliol merely because he had made some concessions to him that could not be obtained from Bruce, who was of a far more generous and spirited temper. It was introduced the famous betwixt32 the houses of York and Lancaster. The claim of the house of Lancaster was founded on the right of representation; that of the house of York on the nearest step of the relation. There had been one precedent in favours of representation, and severalls against. In the time of the Saxons a manner of succession prevailed which would now appearw very strange. The great Alfred was the third brother33 who succeeded, all the formerx having left child behind them. The Lancaster family always favoured the right of representation, as the more instances there were of it the stronger was their claim. The York family, on the other hand, being possessed | of the throne <?(> by the inclination of the people who began to doubt the right of the Lancastrians after they had succeded 3 or 4 times by representation) did all in their power to discourage it. However in time this method of succession has come to be established thro all Europe. But in some places but very late. In the German electors, the houses of Brandebourg, Brunswick, and Hanover have receivd it but very lately. When this is established in its full extent,y which soon follows after it is once generally practised, there can be no doubt concerning the succession, as the descendent<s> of the eldest son exclude all others (whether the descendents be male or female in this country), and so to the next eldest son, etc.; this is the order observed by the royall family on the throne.—{And for the same reason there can be no objection to collaterall representation in this case, as it can allways be ascertain’d who is come of the eldest branch of the family, and to him or her the whole estate goes as it is indivisible, and he excludes all others of the same rank. But as we observd already this is otherwise in moveables, as they are divisible subjects.} As an instance of the difficulty of introducing this representation we may take the succession Blank in MS.z of Don Sebastian34 to the throne | of Portugal, in preference of his brothers daughters. They said in his favours that as this right of representation was borrowed from the Roman law, they should consider whata effect it had amongst them. This was that if any one died leaving, besides his children, grandchildren by a predeceased son, they should come in for the same share as their father would, and in every shape should represent him. Let then, say, this childb come into his place as a son; but why as an eldest; the child can represent him in nothing but affinity; it cannot represent him in age and far less in sex. The father was preferred to the other brothers as being elder and superior in wisdom and age. But shall his daughter be preferred, who is inferior not only in age, but in sex. She should be farther from the inheritance than his sisters, as they are equall to her in sex and superior in age. This may shew the great difficulties that stood in the way of this right ofc representation and the great time it took to establish it.

In the first period of the feudall | government the succession of females was never allowed; for they could not perform any of the services required of those who were vassalls either of the king or his nobles; they could neither serve him in the field nor in the council; and as they could not inherit so neither could their descendents by their right. {Nor could it for the same reason be allowed of in the allodial governments, as the females could neither lead the vassalls to battle nor preside in council and exercise jurisdiction. But in timed the military fiefs came to be considered in most respects as property, and the services of the field were not always required, but weree dispensed with for a certain gratuity. This gratuity, which they called Blank in MS.35 , was often more esteemed than the performance of the actuall services, and new fiefs were given out on that condition. The lords or feudall chiefs did not now exercise the jurisdiction themselves, but by their steward. In this state of things females could succeed in every shape as well as males; they could pay the Blank in MS.35 and maintain a steward to exercise judgement on their tenents as well as men. From this time therefore females were admitted to the succession.} But afterwards when this sort of service was not so necessary, and the feudall government had in time rendered feudall lands nearly of the same priviledges with property, they came both to be inherited by females as well as males; and at the same time this would be extended to their descendents allied to the estate. Collateralls too by females were called after those allied by males.f

After | the introduction of female succession, fiefs (or feus) became of two sorts, masculine and feminine. The masculine are those wherein theg old Salic law is adhered to, and in which no females are admitted, neither are their descendents. In the feminine again females and their descendents are admitted, in defect of males. The royal family of France succeed in the manner of a masculine fief. The crown of Great–Britain, on the other hand, is a feminine fief; thus in the present royal family, the late Prince of Wales would have succeded to his father, but on his death it fell to his son, the present king, and failing him would have gone to his next eldest brother, and so on thro them all, and failing all male issue of him, to his daughters in order.36 Then in defect of them to the Duke of Cumbe. and his issue, and in defect of them to the Princess Royal and her sons and so on.h | Some German authors talk of a third kind which they call mixt fiefs. In these the inheritance goes to the sons in succession and then returns to the descendents of the eldest son, and so thro them. Of this sort I can find no example in any country either in publick or private possessions. If it has ever taken place at any time it must have been only by an entail, which may establish this as well as any other foolish order of succession.

Thus it was that the rights of primogeniture and of representation and of female succession were established in the greater land estates, and now it is extended to all sorts of indivisible estates in the same manner in Scotland and England, excepting a fewi cases to be mentioned in the next lecture.

We may observe here that though females were not at first admitted to the inheritance of the greater allodial and feudal estates, yet there were two sorts of inheritances | to which they were at all times admitted. These were, Ist, the inheritance of moveables to which they were admitted equally with males as a divisible subject which had no priviledges attending them nor any burthens imposed on them. Of this already.37 II, sockage, or sock lands.38 The great allodiall and feudall lords in letting out their estate gave the greatest part <of> it as military fiefs, for the service in war, etc. Other parts they gave either for a certain rent, or for the performance of certain works. These latter were called sock lands [lands]. Those who live in the countryj must keep some part of their lands in their own hand for the maintenance of the family. This land they did not cultivate by their own servants, but by the tenants who held in this manner and were thence said to hold by the sock. Of this method of holding there are still many remains in this country. Those who held in this way were always men of no great possessions in property; they [they] could have formed no reasonable | hopes, imagination, or expectation that he could of himself defend his possessions; for this he must depend on his master. There could be no reason here for not dividing the inheritance, as it would be as safe in the one case as in the other. And as females were at that time equally engaged in the country work as the men, there was no reason why they should be excluded, as they could do the service as well.k Accordingly they were always held capable of the inheritance of sock lands, to which they were admitted as heir portioners.—Here I have a blank and you etc. ^ others have no more.39

Gap of three and one–half pages in MS.

| In some of the last lectures I have endeavoured to explain the different methods of succession ab intestato. These differ according as the subjects are divisible or indivisible. There are two generall methods of succession to divisible subjects; either 1st., that where they are equally dividedl amongst all the children and the wife, she being considered in the same manner as a daughter; or 2dly., where the wife takes one third and the children two thirds amongst them, one third as their own share and the other as the successors of their father. The first is that which prevailed [in] amongst the Romans and most ancient nations. The other is that which is universally in use in all the modern states of Europe.—In like manner there are two methods of succession in indivisible subjects, viz masculine fiefs, and feminine fiefs. These were exemplified in the succession of the crowns of France and England. It was observed also that the methods of succession in Scotland and England were not altogether either in the manner of masculine fiefs or feminine fiefs, but differed in | severall particulars from both and from one another. These differences we may observe are only to be found in the succession of collateralls or ascendents. In that of descendents there is hardly any variety; men are more explicit with regard to the latter as it is more founded in nature. But in the other their opinion is less fixedm and may be turned different ways by many different circumstances.—{And many of them are accordingly very whimsicall, as those with regard to halfblood, and the relation by the mother, and the succession of ascendents.} All these varieties betwixt the Scots and English law with regard to succession, as well as severall differences in the order of succession betwixt them and the civil law, have been already considered, and the causes which brought them about explained from the nature of the severall constitutions. There are two other methods of succession different from both these. The first is called gavelhaide.40 This took place amongst some of the Saxonn principalities, and does so still in soccageo lands in severall parts of England. By it the inheritance was equally divided amongst the sons exclusive of the daughters, and only came to them in failure of sons. This is said to have | been the law amongst the Athenians prior to the time of Solon; but the matter is not altogether certain. The other method, which is still in use in some parts of England as well as in some other countries in Europe, is called burrow English;41 by this manner of succession the youngest son inherits all that the father was possessed <of> at his death. The reason of this seems to be that in the farm lands, as soon as a son was come to be a man, his father got him a farm and settled him in it. In this manner it had often happened that the sons being all forisfamiliate before the death of their father, excepting the youngest, who generally staid with his father, the whole inheritance devolved on him. The judges, who must regulate their sentence by the common practise, finding it to bep in common use that the youngest son should succeed to all his father died possessed of, established this as the rule in the severall burrows and counties where they found this practise.

| We come now to treat of testamentary succession. There is no point more difficult to account for than the right we conceive men to have to dispose of their goods after their death. For at what time is it that thisq right42 takes place. Just at the very time that the person ceasesr <?to have> the power of disposing of them; for the testamentary heir has no claim or right to any of the testators goods untill the moment that he is dead; for till that time he can not even have any reasonable expectation of his possessing them, as the testator may alter his inclination. A man during his own life may very well be conceived to have the power of disposing of his goods; the very notion of property implies that he may abuse, give away, or do what he pleases with them. In the very beginnings of property it would bes uncontroverted that a man might make what use he pleased of a wild beast he had caught in hunting.—But how is it that a man comes to have a power of disposing as | he pleases of his goods after his death. What obligation is the community under to observe the directions he made concerning his goods now when he can have no will, nor is supposed to have any knowledge of the matter. {For what reason is it that we should prefer the person made heir in the testament to the heir at law if he has one.} The difficulty is here so great that Puffendorff43 called in to his assistance the immortality of the soul. He says we allow the will of the deceased to take place supposing that he is still alive and willst in the same manner; and that out of regard to this willu we allow his testament to be effectual. But we need not go so far to find a sufficient account of this.—The regard we all naturaly have to the will of a dying person seems to be sufficient to explain it. That period is of so momentous a nature that every thing that is connected with it seems to be so also. The advices, the commands, and even the very fooleries of the dying person have more effect on us than things of the same nature would have had at any other period. | We have a great reverence for his commands at such a time; and after his death, we do not consider what hev willd, but what if he was then alive would be his will: we think, as we say, what would be his will if he should look up from the grave and see things going contrary to what he had enjoined. Suppose a man on his death bed calls his friends together and entreats, beseeches, and conjures them to dispose of his goods in such or such a manner, {to look upon such a friend in the same manner as they did on him or on his children, etc.}. They would afterwards be, as it were, forced by their piety to the de<ce>ased person to dispose of his goods as he desired; they would imagine what he would think were he to see them disposing of them in a mannerw contrary to what they were so solemnly intreated. But this piety to the dead is a pitch of humanity, a refinement on it, which we are not to expect from a people who have not made considerable advances in civilized manners. Accor|dingly we find that it is pretty late ere it is introduced in most countries. In the first ages of Rome no testament could be made, but by what we would call an Act of Parliament, viz a decree of the whole people assembled in the Comitia Calata, where he adressed them thus: Velitis jubaeatis, juveniles, etc., the will of the whole people appointing that such an one should be accounted as his son.44 So that it was rather an adoption than a testament; and we are told that this was only allowed in the case that a man had no children. It was natural for one in that condition to desire that some of his most intimate and dearest friends should possess his fortune and represent his family. Private testaments were not thought of till they were introduced by the laws of the 12 Tables, which borrowed it probably from the laws of the Athenians. Testaments were also | introduced by Solon into Athens,45 before his time under the laws of Draco.46

In the same manner no testament could be made in England for a considerable time {for more than the fathers share, that is, ⅓ of his property if he had a wife and children, or one half if he had no wife or no children.} Henry 8th gave the liberty of disposingx of the estate by testament, and now the whole estate may be given in that manner.47 In Scotland, no testament can be made with respect to an estate; it can only be disposed of by a disposition of the same sort as that by which property is transferred amongst the living.48 — In the savage nations of Asia and Africa testamentary succession is unknown; the succession is intirely settled; a mans estate goes always to his nearest male relations, without his having the power of disposing, by any deed to take place after his death, of the smallest subject. It is not till society is considerably refined that such respect is paid to the will of the decceased; piety to the dead (as it is called<)> is too refined a doctrine for a barbarous people. | But tho’ this piety to the deceased and regard to the will of the testator inclines us to dispose of his goodsy and obey his will for some time after his death, yet we do not naturally imagine that this regard is to last for ever. In a few years, often in a few months, our respect for the will of <the> testator is altogether worn off. A man who died 100 years ago, his will is no more regarded than if he had never lived. We do not naturally imagine that a man can settle how his estate shall go for any longer time than that which immediately follows; as soon as he dies and the heir succeeds, they are possessed by another who has the same <?power> of doing with them as <he> pleases as the deceased had. There are therefore no such thing as entails amongst the Romans for a long time after testamentary succession had been introduced. The only thing that bore any resemblance to it was the vulgar and pupillary substitution. The former was establishd that if it should happen that an inheritance was so burthend that the man whom he intended for his heir, who perhaps was rich,z might not incline to accept of, | and the trouble attending it, the testator was in this case allowed to name severall heirs in order {that he might not die without some one as his heir, which was reckon’d discreditable}. But then this went no farther than one succession, for if any one accepted it went intirely to him and his heirs, the rest being altogether excluded. The other kind provided that if a mans nearest relation or any other49 whom he designed to institute heir was under tutors and consequently incapablea of making a testament, and if there were severalls whom he had a greater affection for than the heir at law to this pupill, the testator was then allowed to appoint an heir to him in case he died before the age of puberty. But in this case also it did not extendb above one degree.

In time however entails were introduced amongst the Romans, and as this was brought about by means of fideicomisses,50 it will be necessary to explain their nature and origin. By the ancient marriages, which were performed either by confarreatio or coemptio, the wife became intirely the slave of the husband.51 He had absolute power over her, both of death and of divorce. Wives | could not at that time give any great adition to a mans fortune. They brought either nothing with them or a very small matter, as seven acres of land were accounted a large estate. The wives were accordingly not much regarded in those times. {It was also introduced that if a man lived with a woman for a year and day without being three nights absent, she became his wife in the same manner as those who had been married by the former ceremonies. She became his wife usu, and was prescribed in the same way as any other moveable.} But when the Romans became from a very poor a very wealthy people; and the women, who are in all polite and wealthy countries more regarded than they are by a poorer and more barbarous nation, came to have large fortunes which they could conferr on their husbands; they could not submitt, nor would the friends allow it, to the subjection that attended the old form of marriage. They therefore made certain concessions to one another; the husband, on consideration of the use of such large summs of money as they might sometimes receive, gave up some parts of his authority, and the woman on the other hand gave him the use of her portion during his lifetime. There articles were drawn up in ac writing called the instrumenta dotalia,52 which as I shall shew hereafter,53 | like the priests form of marriage, was what chiefly made the difference betwixtd wives from concubines, which chiefly consists in this, that the children of the latter can not inherit and are counted no ones relations. By this marriage the husband and wife might seperate whenever they inclined; and least the wife usû conveniret in manum54 she was directed to be absent from her husband three nights every year, which interrupted the prescription.

As these procedings seemed very great infringements on the ancient disciplines and severity of manners to Cato, Oppius,55 and other such austere disciplinarians, they did all in their power to curb them by bringing the wives into their former subjection; and this they attempted by bringing their portions to be of a less value. For this purpose the Voconian law56 was made. Some are of | opinion that after it no one could leave to a woman above ¼ of his inheritance, but for this their can be no good reason given. In some way or other however it is certain the property of women was restricted; {For as women are reckoned incapable of publick offices or the exercise of the more lu<crative> employments, the only means by which they can be possessed of considerable fortunes is succession, and when this is restricted their property must of consequence be diminished.} and it is also evident that contrary to the opinion of Perizonius57 and others, this law must have extended to successors ab intestato as well as testamentary successors, otherwise it might have been evaded by dying intestate. To evade this law, which would <be> very dissagreable to the rich and powerfull, they contrived that e.g. am58 who inclin’d to leave all his fortune to a daughter or to his sister, should appoint some friend whom he could trust as his heir, and desire him solemnly to restore it afterwards to his daughter. For tho they might hinder death bed deeds, the law did not extend to donations inter vivos. This was called a fideicomiss.—For some time these were not reckond absolutely binding, tho the not | performing the promise which was often express’d in the testament was reckon’d dishonourable. There were however many instances of their not being observed,e some of which are mentioned by Cicero.—The first who made them absolutely binding was Augustus. He, being left heir in this manner by Blank in MS.59 , not only performed the fidecom. himself but made all those to be made thereafter, or lately before, absolutely binding, and appointed the consuls to take care of the observance of the law. This office was afterwards conferred on a pretor fideicommissarius.—This constitution in effect abrogated the Voconian law, and so we find it is hardly ever mentioned after the time of Augustus.

The praetor fideicomissarius had it assigned him as his province to take care that the fidieicomisses were duly observed, and that the three persons concerned should perform their part. These three were the fi|deicommittens, who made the fideicomiss; the haeres fiduciarius, who was bound verbis prec.60 by the testament to give it to the 3d person, called the haeres fiduciarius.61 In these fideicomissary inheritances the heir might be bound either to restore the inheritance either at such a time in his life or he might be desired to give at his death to such an one the sum respected.f By this latter method it might be continued for a very long time after the testators death. This was indeed restricted to 4 degrees, by a novell of Valentinian and Severus;62 but for som<e> considerable time there was no restraint, viz from the time of Trajan or thereabouts, when fideicomisses had come to have their full force, till Valentinian. But notwithstanding this,g entails in the full extent of the word neverh were in use amongst the Romans. They do not seem to have allowed that a man should leave his estate to Varro, e.g., failing him and the heirs of his body to Seius, and so on thro the whole of his children or other relations. This if it had been allowed would have been a compleat entail. | This is however the case in most of the nations of Europe. The German nations which overran Europe had no notion of testamentary succession; every inheritance was divided amongst the children; the only people amongst them {after the introduction of Christianity} who had any such idea were the clergy. They werei under a necessity of understanding Latin that they might read the liturgy; they had likewise generally read the book wherein the Roman law was contained, and had from it, as well as the practise of the country where they had been educated, contracted a reverence for the will of the dead. This they enculcated to their people, as a piece of piety not to be dispensed with, and by this means gradually brought it about that the will of the deceased with respect to his goods orj heirs should be observed. As the clergy were the introducers of testamentary succession, so they were reckond the most proper persons to judge of it, as being best skilled; and accordingly each bishop | in his diocese, and even every priest in his parish, had formerly the judgement of all testamentary succession. In England indeed before the Conquest, the bishop and the sheriff of the county, which then was the same extent with the diocese, sat in judgement together.63 He, according to the custome which prevaild in his own country, took this altogether from the civil judge and appointd the spiritual court to be the sole judge in all testamentary matters. In the eastern parts of Europe, where the civill law was that by which the magistrate was directed, the clergy had no concern with testaments, and Blank in MS.64 expressly prohibited testaments being presented to the bishop.—The bishop however continues to be the judge in all testamentary matters. The making of entails came in also in some degree soon after the introduction of testaments. When once the notion of the will of the deceased directing his succession for one step <?> it was no difficult matter tok | suppose that it should extend farther. They however found some evasion of all entails before the statute de donis65 was made, which appointed that all gifts of the testator should be valid in the very manner he appointed, and that no one of the heirs of entail could alienate what was entaild to him and his heirs, and that when it came to the last heir of entail it should not be alienated but fall to the crown. They have however contrived to evade this statute, which is in effect abrogated with regard to entails by what is called the statute of fine and Blank in MS.66 . In Scotland however entails that are valid in law may be made if they are done withoutl exclusive, restrictive, or irritant clauses.67 The first of these prohibits him from leaving the inheritance to any but those specifi’d, but does not prohibit its being68 alienated. The 2d. proh Gap of five or six lines in MS. |

Intails made in this manner were by a statute in the time of James the 2d in 168269 made altogether binding, and are so at this day.—{It has been a question whether deeds of this sort made before that time are to be accounted valid or not. The most of our eminent lawyers70 determine that they are not.—It may be a question too whether they may not even now be looked on as null at common law. An eminent lawyer says <?>} Now there can be nothing more absurd than this custom of entails. That a man should have the power of determining what shall be done with his goods after his death is aggreable to our piety to the deceasd, and not contrary to reason. But that he should have the power of determining how they shall dispose of it, and so on in infinitum, has no foundation in this piety and is the most absurd thing in the world. There is no maxim more generally acknowledged than that the earth is the property of each generation. That the former generation should restrict them in their use of it is altogether absurd; it is theirs altogether as well as it was their predecessors in their day. It would <be> altogether absurd to suppose that our ancestors who lived 500 years <ago> should have had the power of disposing of all lands at this time. But this | is no more than would have been the case had they had the power of making entails; and is what we claim to ourselves over the estates of our posterity, not only for 500m years but for ever. The difficulty is to find at what period we are to put an end to the power we have granted a dying person of disposing of his goods. There is no evident time at which this should cease. And it has been this uncertainty that has introduced the right of making intails into all the countries of Europe. The best rule seems to be that we should permit the dying person to dispose of his goods as far as he sees, that is, to settle how it shall be divided amongst those who are alive at the same time with him. For these it may be conjectured he may have contracted some affection; we may allow him reasonably then to settle the succession amongst them. But persons who are not born he can have no affection | for. The utmost stretch of our piety can not reasonably extend to them.

This right is not only absurd in the highest degree but is also extremely prejudiciall to the community, as it excludes lands intirely from commerce.—The interest of the state requires that lands should be as much in commerce as any other goods. This then power of making entails intirely excludes. I shall hereafter shew more fully, only hinting at it now, that the right of primogeniture and the power of making entails have been the causes of the almost total bad husbandry that prevails in those countrys where they are in use.—When land is in commerce and frequently changes hands it is most likely to be well managed; those who have raised a fortune by trade or otherwise have generally money besides what they lay out. They are generally also men of scheme and project, so that they for the most part have both the desire and the ability of improving. Those on the other hand who possess old family estates seldom | have any money besides.o The anual luxury and expense of the family consumes the income. We see accordingly that lands which lie near great towns, which frequently change masters, are much better cultivated than those which lie at a distance from them and continue long in one family.—The estate of a great family stands very little chance of being farther improvd than it is at present. The lord has nothing to lay out upon it and the ten[en]ants are notp in the state which would induce them to improve. If this estate was divided into a number of small possessions eachq having a seperate master, it would soon be cultivated to a high degree. Farms set out for long leases or feusr are those which tend most to the improvement of the country. Short ones, as leases at pleasure, can never induce the tenent to improve, as what he lays out will not be on his own account but on an others. But even in long leases the tenent has perhaps a third part of his End of Volume One of MS. | ii.1 income, to pay as a rent. This is a great discouragement. But were all these farms converted into property, the land as being all cultivated by the masters would soon be well improved. And this would soon be the case were it not for the unnaturall right of primogeniture and this of entails, supported by nothing but the vanity of families.

[f]Blank in MS.

[12 ]Meursius, Themis Attica (1685), II.13, citing Demosthenes, Against Macartatus.

[g]Illegible word deleted

[h]‘adva’ deleted

[13 ]Cf. TMS IV.1.10, where, however, Smith says that the rich, ‘in spite of their natural selfishness and rapacity, . . . are led by an invisible hand to make nearly the same distribution of the necessaries of life which would have been made had the earth been divided into equal portions among all its inhabitants’. See also iii.134 ff. below.

[i]Replaces ‘has’

[j]‘may’ deleted

[k]Replaces ‘in’

[14 ]Sic. Presumably ‘he’ was intended.

[l]Replaces ‘lay’

[15 ]H. Spelman, Tenures, cap. 7, cited by Dalrymple, 27. The modern word ‘farm’ is now considered to be derived from the medieval Latin firma, fixed payment.

[16 ]Hume, History, II.361.

[17 ]Ibid., I.272.

[m]‘him war’ deleted

[18 ]Dalrymple, 161; cf. iv.127, below.

[19 ]Craig, Ius Feudale, I.4.8.

[n]Reading doubtful

[o]The last three words replace ‘400 or 500’

[p]Reading doubtful

[20 ]Ibid., I.7.1 ff.

[21 ]Cf. P. Bouquet, Le Droit public de France, éclairci par les monumens (1756), 32–3. The word is considered to be from an old Germanic word allod, entire property.

[q]‘as’ deleted

[r]Replaces ‘obligations’

[s]‘was extended over all’ deleted

[t]This note is written at the top of the verso of 124

[u]‘as’ interlined and deleted

[v]‘on’ deleted

[w]Replaces ‘one’

[x]‘that’ deleted

[y]‘hommage’ deleted

[22 ]Escheat was the reversion of land to the lord, either because the tenant died without heirs or because of some offence committed by him.

[z]‘and’ deleted

[a]Sic

[23 ]Sic. Presumably ‘at’ was intended.

[24 ]Sic. Presumably ‘he’ was intended.

[25 ]The county force of men whom the sheriff could order to attend him for the purpose of keeping the peace.

[b]Illegible word deleted

[26 ]Donald Cameron (1695?–1748), the chief of Clan Cameron, who called out his clan in support of Prince Charles in 1745.

[c]Illegible word

[d]The last three words are interlined without any specific indication as to their proper placing

[e]Reading doubtful

[f]‘in land’ is interlined here, but has apparently been struck out

[g]Reading doubtful

[h]The last two words replace ‘that’

[i]Reading doubtful

[j]Reading doubtful

[k]Reading doubtful

[l]Replaces ‘that’

[m]‘long after’ deleted

[n]‘the’ deleted

[o]Reading doubtful

[p]Blank in MS.

[q]Reading doubtful

[27 ]Leofric, Earl of Mercia (d. 1057), and Alfric, Earl of Mercia (d. about 1004).

[28 ]Blank in MS. Probably ‘gavelkind’ was intended. By this form of tenure, which was supposed to have been the general custom of England in Saxon times, the land descended to all the sons together.

[29 ]131 above.

[r]‘still’ deleted

[s]Replaces ‘turn out’

[t]Illegible word deleted

[u]Illegible word deleted

[30 ]II.33 (Skene’s numbering); Dalrymple, 172; Kames, Essays, 139.

[v]Illegible word deleted

[31 ]The Great Cause concerning the right to the throne of Scotland, 1291–2. Balliol and Bruce were descended from two sisters, Balliol being the grandson of the elder and Bruce the son of the younger. Dalrymple, 180 ff.

[32 ]Sic. Possibly something like ‘introduced into the famous quarrel betwixt’ was intended. Henry VI of Lancaster was descended from the third of Edward III’s sons, while Richard of York was descended from both the second and fourth son (by the latter of whom he was nearer in degree to Edward than was Henry).

[w]Replaces ‘look’

[33 ]Actually the fourth.

[x]Reading doubtful

[y]Two or three illegible words are interlined here

[z]Blank in MS.

[34 ]Posthumous child of a son of John III; succeeded his grandfather as king in 1557.

[a]Reading doubtful

[b]Replaces ‘daughter’

[c]Illegible word deleted

[d]The last two words replace ‘when’

[e]‘allow’ deleted

[35 ]Blank in MS. English, escuage; Scots, taxtward.

[f]The five lines which follow in the MS. are cancelled by a succession of oblique strokes, and are largely illegible

[g]‘whole’ deleted

[36 ]Frederick, Prince of Wales, eldest son of George II, predeceased his father. His son succeeded to the throne as George III in 1760. William Augustus, Duke of Cumberland (1721–65), the victor of Culloden, was Frederick’s younger brother.

[h]Reading of last six words doubtful

[i]‘exceptions’ deleted

[37 ]104 ff. above.

[38 ]Socage was a tenure by a certain and determinate service, in contrast with knight–service.

[j]Illegible word deleted

[k]Reading of last two words doubtful

[39 ]The words after ‘heir portioners.—’ appear to be written with a different ink and pen, but may well be in the same handwriting as the main text of the MS. The reading given above, particularly of the words we have rendered as ‘blank’ and ‘others’, is very doubtful indeed. If the reading is correct, however, the note may indicate that the reporter was unable to take down what Smith said in the final part of this lecture, and therefore left the next three and one–half pages of his notes blank in the hope that one of his fellow students might be able to supply the missing material. On checking with another set of notes, however,—probably those of a friend whose notes he usually collated with his own—he found that the latter had had the same difficulty and had merely written ‘etc.’ and a caret in the relevant place. Further inquiries, we may surmise, elicited that other students had ‘no more’, and the reporter, presumably for the benefit of his friend, therefore scribbled the words which appear in the text at this point and gave it up as a bad job.

[l]Illegible word or words deleted

[m]Reading doubtful

[40 ]Sic. No doubt ‘gavelkind’ was intended. It survived in Kent.

[n]‘nations’ deleted

[o]‘and farm’ deleted

[41 ]Borough–English, a custom of inheritance by the youngest son, so called because it was mainly found in parts of England.

[p]‘thus’ deleted

[q]Reading doubtful

[42 ]At this point the student has interlined the words ‘right’ and ‘conveyed’, the former being deleted and partially overwritten by the latter, indicating perhaps that the sentence was intended to read ‘For at what time is it that this right is conveyed.’

[r]‘has’ deleted

[s]‘an’ interlined and deleted

[43 ]IV.10.4, quoting the view of Leibniz.

[t]Reading doubtful

[u]‘will’ deleted

[v]Illegible word deleted

[w]‘so’ deleted

[44 ]The Comitia Calata was the Comitia Curiata (above, 92) when it assembled to approve adrogations and testaments. The presiding magistrate asked, ‘Do you wish and command, citizens?’ The text substitutes ‘youths’ for ‘citizens’ (quirites). Heineccius, II.10.2, citing Aulus Gellius, V.19; Kames, Law Tracts, I.186–7.

[45 ]Cf. 92 above.

[46 ]It seems probable that there is a lacuna in the MS. here.

[x]‘of 3/4 deleted

[47 ]32 Henry VIII, c. 1 (1540) as amended by 34 and 35 Henry VIII, c. 5 (1543) gave the power to devise all socage land and two–thirds of that held by knight–service.

[48 ]The transferor executed a conveyance of the land, to be put into effect after his death by an agent: Dalrymple, 130–1.

[y]Reading of last two words doubtful

[z]‘was rich’ deleted

[49 ]Pupillary substitution was possible only where the pupil was a descendant in the testator’s power, who would, on the testator’s death, become independent before reaching the age of puberty (14 years for males), at which he would acquire capacity to make a will for himself. Until that age his interests were looked after by a guardian (tutor). Inst. 2.15,16.

[a]Replaces an illegible word or words

[b]‘to a’ deleted

[50 ]Fideicommiss was the Scots version of the Latin fideicommissum.

[51 ]Confarreatio (a ceremonial meal), coemptio (bride–purchase), and usus (prescription) all created marriage cum manu, subjecting the wife to the husband. Cf. 94 above.

[c]‘pape’ deleted

[52 ]Dowry deeds.

[53 ]iii.8–9 below.

[d]The last four words replace ‘distinguished’

[54 ]‘Should contract a manus marriage by prescription’.

[55 ]M. Porcius Cato, the Elder, notorious for his severity as censor in 184 b.c. C. Oppius, tribune of the plebs in 213 b.c., carried the lex Oppia, which limited luxury among women. Cato tried unsuccessfully to prevent the repeal of this law in 195.

[56 ]The lex Voconia, 168 b.c., prohibited wealthy testators from instituting women as their heirs and from bequeathing legacies which exceeded what the heirs received. Montesquieu, XXVII.1.

[57 ]Jacobus Perizonius, Dissertationum Trias (1679), II (De lege Voconia feminarumque hereditatibus, 99 ff.).

[58 ]‘e.g. am’ replaces ‘a father’. Possibly ‘e.g. a man’ was intended.

[e]‘and’ deleted

[59 ]Blank in MS. Lentulus: Inst. 2.25pr and 2.23.1; Cicero, De Finibus, II.55,58.

[60 ]Verbis precariis, ‘in words of request’.

[61 ]Sic. Presumably ‘fideicommissarius’ (the beneficiary) was intended.

[f]Reading of last five words doubtful

[62 ]In fact Justinian’s Novel 159.

[g]‘they’ deleted

[h]‘had’ deleted

[i]Replaces ‘having been’

[j]Reading doubtful

[63 ]H. Spelman, ‘Of the Probate of Wills or Testaments’, English Works (1723), II.128.

[64 ]Blank in MS. Perhaps a reference to the ruling of the Fourth Council of Carthage, c. 18: episcopus tuitionem testamentorum non suscipiat, contained in Gratian’s Decretum, D.lxxxviii, c. 5.

[k]Illegible word or words deleted

[65 ]Statute of Westminster II, 13 Edward I, c. 1 (1285).

[66 ]Blank in MS. Entails were barred by the procedural device of Recovery (an elaborate fiction). 4 Henry VII, c. 24 (1490) provided that a fine (i.e. final concord) should in certain cases be a bar: Dalrymple, 136.

[l]Reading doubtful

[67 ]Prohibitory, irritant, and resolutive clauses: Kames, Law Tracts, I.201 ff. Irritant clauses rendered void (irritus) acts done contrary to the deed’s provisions; resolutive clauses took away (resolved) the rights of the offender.

[68 ]What appears to be a small caret at this point may have been intended to refer to an entry at the side of the page, which reads ‘burthened with debts so as to ma’.

[69 ]In fact 1685, c. 22 (A.P.S. VIII.477, c. 26); Kames, loc. cit.; Dalrymple, 142.

[70 ]Kames, op. cit., 216: ‘Finding entails current in England, we were, by force of imitation, led to think they might be equally effectual here; being ignorant and not adverting that in England their whole efficacy was derived from statute.’

[m]‘but 5000’ interlined and deleted

[n]‘right’ deleted

[o]‘so that’ deleted

[p]‘the’ deleted

[q]Replaces ‘all’

[r]Reading doubtful