death Yea a Wife was found to have right to the expenses of Child-bed of a posthumus Child born after the next Term against the eldest Son though he was not Heir but having an universal Disposition of his Fathers means which was very considerable which Disposition was granted after the Posthumus Childs Conception November 10. 1671. Thomas Hastie and Barbara Ker his Mother contra William Hastie A Wife has also her Mournings if her quality require it out of her Husbands Executry November 12. 1664. Nicolas Murray Lady Craigaffie contra Cornelius Neilson July 7. 1675. Agnes Wilkie contra Christian Morison And likewise if the Wife predecease her Executours have the half or third of her Husbands Moveables the best of every kind being set aside as Heirship Moveables though there could be no Heir for the time the Husband being alive December 8. 1668. Agnes Guidlet contra George Nairn TITLE V. Obligations between Parents and Children 1. Obligations betwixt Parents and Children are Divine by the Law of Nature 2. The Power of Parents over their Children 3. In Infancy 4. In Minority 5. In Majority 6. Oeconomical Government 7. Provision of Children 8. Obligations of Children to their Parents 9. Aliment due to Parents 10. Obligations mutual of Children 11. Patria potestas amongst the Romans 12. Amongst other Nations especially as lawful Administrations 13. Forisfamiliation and Emancipation THAT there be Natural Obligations betwixt Parents and Children not proceeding from the consent of either Party or from the Constitution of any humane Law but from the obedience Man oweth to his Maker who hath Written this Law in the Hearts of Parents and Children as to their Interests and Duties with Capital Letters Is evident by the common consent of all the Nations of the World how Barbarous soever though evil custome hath put out the Eyes of Natural Light in other things yet in this the Rays of the Sun of Righteousness are so direct that their illumination cannot be extinguished These Obligations are so firm that in most things they cannot be taken off nor discharged by Men though Children would discharge their Parents of Natural Affection Education Provision c. Or Parents would free their Children of Reverence Obsequiousness and of Intertainment of Parents not able to Intertain themselves yet would these Obligations still be binding upon either These Obligations are placed in the Common Nature that Man hath with other Animals and so is given as an evident Instance of the Law of Nature l. 2. ff de justitia jure We shall then consider what these are And first What Interest the Parents have in the Persons of their Children Secondly In what they are Naturally bound-to to their Children Thirdly What interest the Children have in the Goods of Parents Fourthly What they Naturally do owe to their Parents Fifthly what they are bound in to each other 2. For the first ere we can distinctly know the power Parents have over their Children we must distinguish the Capacity and Ages of the Children whereof there are three Infancy or Pupilarity Minority or less Age and Majority or full Age So doth Aristotle distinguish Polit. 1. cap. ult Ethic. l. 4. cap. 3. l. 5. cap. 10. And after him Grotius de jure belli pacis l. 2. cap. 5. 3. Infancy is when the Children are without Discretion and then are wholly in the power of their Parents who not only may but must carry them whither and keep them where they will and must also breed and order them according to their capacities means and qualities And this is rather an Act of Dominion in the Parents the Children being then capable of no Obligation and therefore it cannot be received by them from the Parents as an Obligation as it may thereafter be done during the Childrens Minority wherein there is a Natural Levity for want of fixedness and experience while the Light of Reason is but drawing towards its Meridian clearness 4. It will not much be debated but the direction of Children in their Minority is naturally stated in their Parents But the greatest Question will remain of their full Age when the Children become able to govern themselves and their own Affairs And as to that it is the opinion of some that it standeth alone inpietate reverentia Steph. oeco.juris civilis cap. 7. and Vinnius partitionum l. 1. cap. 7. in principio sheweth that the Custome of Holland dissolveth the power of Fathers by the Childrens age of 25. 5. Whatsoever may arise from the Custome of Nations whereby the power of Parents over their Children in their full Age is much diminished yet by the Original and pure Law of Nature not only the Tutory and Protection of Childrens Infancy with the Cure and direction of their Minority is in their Parents But there is also an oeconomick Authority in the Father of the Family over all his Children and Descendants remaining in his Family whom he hath not Elocat by Marriage which is also a Natural Bond unto other Families whereby the Females do naturally change their Families and become under the power of another Family 6. This is the only Natural Authority and Government which had in it self all Authority Publick Private Civil and Criminal till by Humane Constitution and Divine Approbation most of that power is now devolved into Magistracy This Power was not only before Magistracy but even thereafter remained with subordination thereto in most Nations as Caesar de bello Gallico lib. 2. Writes that among the Gauls and Belgae Parents had the power of Life and Death The like power had the Romans anciently l. in suis haredibus 11. ff de liberis posthumis l. libertati 10. Cod. de patria potestate Aristotle testifieth the like of the Persians lib. 8. Ethic. cap. 12. And by the Judicial Law Deut. 21. vers 18. The rebellious son who obejed not the voice of his Father and Mother was to be brought forth before the Elders of that place and stoned to death without other proof than the parents testimony So that the sentence was the Parents though the execution was to be publick Such Authority was that of the Patriarchs Abraham Isaac and Jacob who with Divine Approbation made War Peace and Confederacys which are the publick and proper Rights of Magistracy and Governed their own Families without any Authority derived from any other And though Jacobs Family arose to that greatness that in it were many Families yet he remained the Father and Prince of them all so that the several subordinat Families had their subordinat Authority over their Wives and Children and so their Children were bound in Obedience to them but with the exception of their Superior Parents to whom the first Obedience was due This Native Authority reacheth all Children whether procreat of lawful Marriage or not so that they be truely known to be Children because the same Foundation and common Principles and Duties are in both though they have not the same Interest
in the Fathers Goods in respect of that Community of Goods betwixt Man and Wife and the Conjugal Society even naturally whence the Goods are derived into the Issue of the Lawful Marriage This Paternal Authority doth not necessarily carry the property and disposal of the Goods of the Children but that they are capable of such by the Gift of their Parents or any other ways even in Infancy and that they have the full Dominion and Administration thereof in their full Age And therefore Bonds of Provision by Fathers to Children if delivered are not Revockable directly nor indirectly by contracting Debts thereafter And the delivery of such Bonds of Provision makes them irrevockable whether the delivery be to the Children or to any other for their behoove which behoove will be presumed unless the Father express his mind at the delivery that the Write is to be returned to himself or depositate upon terms and therefore a Bond taken By a Father in the name of his Brother the Father obtaining an Assignation from him to his Daughter the Bond was not found Revockable by the Father being Registrate in the Brothers Name November 20. 1667. Executours of Trotter contra Trotter Childrens provisions by Bond granted after a Testament nominating them Executours found not to import that they should have the Executry if the Heir be oblieged to pay the Bonds of provision but that the Bond being Moveables should first affect the Executry February 22. 1677. Belfhes of Tofts contra Belshes And a Father granting Bond to a Bairn in satisfaction of her Portion natural was not found thereby to apply that Bairns Portion natural to the Heir Executour or unlversal Legator though they would be lyable for payment of the Bond but to apply that Bairns share to the rest of the Bairns who thereby will have the whole Bairns part February 17. 1671. Mistris Katharine Mcgill against the Viscount of Oxford for Bonds of provision delivered in liege pousty do as other Debts affect the whole Executry and where all the Bairns had Bonds of provision bearing in satisfaction they had also their Bairns part of the Executry July 16. 1678. Murrays contra Murrays But Bairns provisions payable at such a day and not bearing the proportion of the deceasing to accress to the surviving the share of these Bairns who dyed before that age without Issue was not found due February 22. 1677. Belshes of Tosts contra Belshes The delivery of Writes in other cases is presumed from the date if they be in the persons hands in whose favours they are granted but in competition with other Creditors the delivery of Bonds of provision is not presumed to have been from the date but that 〈◊〉 be instructed by some evidence as taking Seasing Registration or Witnesses who saw the same in the hands of the Children or others to their 〈◊〉 and in that case they are valide if there be no 〈◊〉 or prejudice to Creditors by latency or 〈◊〉 and therefore Bonds of provision to Children were reduced upon the eldest Sons Contract of Marriage though 〈◊〉 January 10. 1668. Laird of 〈◊〉 〈◊〉 his Brothers and Sisters And a posteriour Tocher was preferred to a prior Assignation to a Bairn in Family unless the prior delivery were also proven November 14. 1676. Major Ingles contra 〈◊〉 June 〈◊〉 1668. Johnstoun of 〈◊〉 contra Isobel Arnold But from this paternal power it follows that the Parents may continue and keep their Children in their Families and that they are oblieged to imploy their Service and Work for the common interest of the Family and what thence arises is the Parents not their own which doth always indure till by consent of the Parents they become 〈◊〉 〈◊〉 whereby they may imploy their Work and Service for themselves alone Thus the interest of Parents in the Persons and Goods of their Children by the Law of Nature being cleared As to the Obligations Natural of Parents toward their Children beside their Obligations that stand and are acted in the Mind and Affections which the Law respecteth not but these only qua non mente sed manu tenentur the main Obligations are Education and Provision The Education of Children consisteth not only in the Care and Intertainment of them during Infancy but especially in Breeding of them for some Calling and Imployment according to their capacity and condition 7. The duty of provision of Children comprehends not only their Aliment and Intertainment in Meat Cloaths Medicine and Burial which may be competent during the Parents Life but also competent provision after the Parents Death for the Apostle saith That he that careth not for his family is worse then an Infidel 1 Tim. 5. vers 8. And in both the ability of the Parent and necessity of the Children is to be considered for if the Children be 〈◊〉 provided aliunde the Parents are not bound and though the Children be necessitous yet there must first be reserved for the Parents that which is necessar for subsistence so that when they are not able to intertain their Children they may lawfully expose them to the mercy and charity of others But a Father though indigent was decerned to receive his Son having no Means or Calling into his Family or to pay him a modification January 13. 1666. William Dick contra Sir Andrew Dick. But a Father was not found lyable to pay a Merchant for Furniture given to his Son where he gave his Son an allowance in Money for his Cloaths January 〈◊〉 1672. High 〈◊〉 contra Craufoord of Camlarg Neither was a Father found lyable for his Daughters Bridel-Furniture to a Merchant whom he prohibit to give them off but the Daughter and her Husband July 〈◊〉 1672. 〈◊〉 contra 〈◊〉 and Gairn and a Mother was found oblieged to receive her Children into Family but for no other modification though they were Noble Persons there being none representing the Father able to intertain them February 23. 1666. Children of the Earl of Buchan contra the 〈◊〉 As to the Interest Children have in the Goods of their Parents it is to be considered either during the Parents Life or after their Death for the Interest they have after their Parents Death it falleth in to be considered among the conveyances of Rights by Succession but during the Parents Life they have no real Right of Dominion or Property in the Parents Goods for though the Parents be oblieged naturally to Intertain and Educate their Children out of their Goods yet that is but a personal Right and intituleth not the Children to meddle with the Parents Goods upon that pretence as saith Solomon Prov. 28. vers 24. Who robbeth his Father and Mother and sayeth it is no transgression the same is the companion of a destroyer 8. The Obligation of Children toward their Parents consists mainly in their Obedience to them and their duty to Aliment and Supply them in all their necessities according to the Childrens ability their Obedience to their Parents is much
cleared from that Power and Authority their Parents have over them of which we have spoken For unto Authority or power to Command Subjection or Obedience answers as the Correlate so that as the Parental Power was most in the Infancy of the Children and least after their forisfamiliation so are the duties of Obedience proportional but after Emancipation these duties are so far diminished that little remaineth except the Natural Reverence Tenderness and Obsequiousness that Children do still owe to their Parents in due order which though it hath no civil remeeds yet it remains a Natural Obligation to observe the Parents commands throughout their Posterity as in that Nottour Example of the Rehabites Jer. 35. is clear where they observed their Fathers Commands in a free thing though inconvenient viz. To drink no Wine to build no houses c. and for their Obedience the Lord promises There should not be wanting a man of them to stand before the Lord for ever But while they are in the Family they are not only under the oeconomick Government of their Parents in so far as is not devolved to the Magistrat but specially they are bound to abide with their Parents and to imploy their Service for their Parents and the use of the Family whereunto their Parents may compel them by their own proper Authority and Parents have Action against all others who shall hinder them to keep their Children with them or lead them whether and imploy them as they please 9. The Obligation of Aliment and Relief to Parents in necessity is due both by the Law of Nature and hath in it also that Remuneratory Obliligation whereby Children ought to retribute to and recompence their Parents for their Education and Intertainment and though it be said 2 Cor. 12 14. That Children ought not to lay up for the Parents but the Parents for the Children yet it is to be understood of that care foresight and Providence that Parents ought to have not only to provide things necessar for themselves but for their Children also after them which being an ordinary duty ought to be in their thought and consideration and is not incumbent to the Children it being but rare and unexpected that Parents necessities put them to expect relief from their Children or else it is to be taken comparatively that parents are rather to lay up for the Children then Children for the Parents Solons Law made the Children infamous who did not Aliment their Parents And Cicero in his Oration de responsis aruspicum parentibus nos primum natura constituit debitores quos non alere nefarium est In these Natural Obligations of Aliment betwixt Parents and Children the Order of Nature must be observed that the nearest are first to be preferred and the Paternal Line before the Maternal as being in an other Family for even the distinction of Families and union thereof in the Paternal power is natural as before is said From the same ground Parents must first Aliment their Children in the Family and amongst them that are Emancipat the Males are preferable to the Females passing by Marriage into other Families 10. As to the Natural Obligation of Children amongst themselves there is no doubt but that there Naturally lye greater Obligations upon them each to other than the common Obligations betwixt man and man which are not only greater in the measures and degrees as to love them assist them support them and supply their necessities the more by how 〈◊〉 degree of Blood they are bound to them than others which is commonly acknowledged by all But the Romans and many other Nations have acknowledged the Natural Obligations of Brothers and Sisters to 〈◊〉 each other though our Custome hath not Authorized the same unless the Brother were Heir to the Father in a competent Estate and the remanent Children not at all provided in which case the Lords modified Aliment to them January 24. 1663. the Children of Wedderlie contra his Heir Aliment was also found due by a Brother to a Sister of a second Marriage who had a Portion to be payed at the age of fourteen and no Annualrent or Aliment in the mean time though they had a Mother on Life 〈◊〉 11. 1663. Catharin Frazer contra Hugh Frazer The like found due by an Heir Male to Heirs of Line till their Marriage seing their Portions bore no Annualrent January 8. 1663. Lady Otter contra Laird of Otter November 12. 1664. Daughters of Balmanno contra Heir-male thereof It is also an Natural Obligation upon Children or Kinsfolk descending from one common Stock to defend and have the Tuition of the Pupilarity of that Race which is incumbent ordinarily to the next degree in that same Family and this is the natural rise of Tutors of which in the next Title 11. The Romans did no more diminish the Conjugal Interests and Obligations competent by Nature as is before shown then they have exceeded the Law of Nature in the interests betwixt Parents and Children for thereby the Parents power is so great that no Nation hath the like Institut de patria potestate § 2. it being almost Dominical and the Children as Servants l. placet 99. ff de acquirenda haered the Father had also the power of Life and Death l. ult Cod. de patria potestate l. 〈◊〉 11. ff de liberis posthumis They had power also to sell their Children unto Servitude This was the ancient Roman Law whereof the austerity was by little and little corrected by the recent Law so that both in Servants and Children it was taken off and this power 〈◊〉 to cases of extream necessity l. 2. Cod. de patribus qui filios Children were permitted also to have Goods of their own which were called peculia in which they were as free and had all their Rights and Actions competent as others but with these Restrictions whereby the Right of the Father in the Goods of the Children was much abaited For in the peculia which the Son acquired by Arms or liberal Arts the Father had no power which was called peculium castrense vel quasi castrense l. 2. ff ad 〈◊〉 Maced of other Goods which befell the Children or were acquired and came not from the Father which were therefore called Adventitious the Father had the Usufruct and Administration but not the Property or Power of Alienation l. 2. Cod. de bonis maternis only in 〈◊〉 〈◊〉 which came from the Father he had full Right and Property and all permitted but to the Son was to make use of and mannage it for the Fathers Advantage In these peculia Children were as Fathers of Families by recent Law l. 1. filius familias 39. ff de oblig yea even the ususruct ceased in Goods given or left to the Children excluding the Parents nov 117. in principio 2. Next where any thing was given or left to both 〈◊〉 3. When the Goods came by the Fathers fault as when he did unjustly Divorce with
favourable but the adjection of a penalty or estimation makes not the Obligation alternative But if any of the Members of the alternative become not intire the Debitor connot offer that Member January 18. 1675. Collector of the King and Lords Taxation contra Inglis of Straitoun The manner also of performance admitts not that the Debitor may perform by parts that which he is oblieged to by on Obligation if it be not that which cannot be performed all at once as the performance of some Acts requiring divers seasons but otherways it must be done without intermission for neither can Money or Grain be delivered at one instant but that is understood to be performed together which is without intermission yet the Civil Law favours the Debitor so far that the Creditor cannot refuse to accept a part of the Money due TITLE XI Liberation from Obligations 1. Obligations cease by contrary consent by Discharge Declaration Renunciation or per pactum de non pentendo 2. Three subsequent Discharges Liberat from preceedings 3. Payment made bona fide 4. Consignation 5. Acceptilation 6. Compensation 7. Retention 8. Innovation 9. Confusion HAVING thus run thorow the constitution and effects of Conventional Obligations It is requisite in the next place to consider their destitution and how they cease which we have exprest in the general term of Liberation comprehending not only payment but all the ways by which Obligations or Bonds are dissolved or loosed and Debitors Liberat We are not here to speak of the Objections competent against Obligations from their nullities for such were never truly Obligations neither of the common exceptions against them and other Rights as Prescription Litiscontestation res judicata Circumvention Extortion c. of which in their proper places But only of the proper ways of taking away Obligations and these are either by contrair consent or by performance or the equivalent thereof 1. First As consent constituteth so contrary consent destituteth any Obligation whether it be by Declaration Renunciation Discharge or per pactum de non petendo which may be extended not only to Conventional but to Natural Obligations as to any duty omitted or transgressed which is past though not to the discharge of the Obligation it self as to the future for love to God or our Neighbour and most of the Duties betwixt Husbands and Wives Parents and Children cannot be Discharged as to the future neither can future Fraud or Force be effectually Discharged for such cadunt in turpem causam If the Write be special and express there can be no question when it concerns a personal Right and is given by the party having power to Discharge and therefore a Discharge of a clause in a Bond constituting an Annualrent whereupon Infeftment followed for a sum lent by a Father and taken to his Son in Fee and bearing with power to the Father during his life to Dispone was found valid and that it required not Registration as a Discharge of Reversion January 6. 1681. Mary Bruce contra Patrick Hepburn But a Discharge of an Annuity belonging to an office by infeftment containing a renunciation of that annuity was not found Relevant against an Appryzer December 9. 1679. Lord Hattoun contra the Town of Dundee Neither did a Discharge of a sum payable to a man and his Wife and the Bairns of the Marriage subscribed only by the Husband exclude the Wife from her Liferent Right to that sum January 22. 1680. Isobel Caddel contra John Raith Neither was a Discharge to a Cautioner upon payment found competent to the principal Debitor unless the Cautioner concur for the Principal may be distressed by the Cautioner using the name of the Creditor as his Cedent July 13. 1675. Margaret Scrimzour contra the Earl of Southesk A Discharge to one or more Debitors Viz. Con-tutors found not to liberat the rest except in so far as satisfaction was made or as the other Con-tutors would be excluded from relief by the party Discharged December 19. 1669. Seatoun contra Seatoun But payment made by one party whose Lands were affected by Inhibition did Liberat the rest pro tanto though it bore not in satisfaction but to restrict the Inhibition January 5. 1675. Ballantine contra Edgar But Discharges by Masters to Tennents for Rent by their Subscription without Witnesses and not being holograph are sustained in regard of the custom so to Discharge November 7. 1674. John Boyd contra Story And by the same custom receipts and discharges of Merchants and Factors in re mercatoria are sufficient by the parties subscription albeit neither holograph nor with Witches But the main Question is how far general Discharges are to be extended which are of two sorts One where there are particulars Discharged with a general Clause and then the general is not extended to matters of greater importance then the greatest of the particulars February 24. 1636. Lawson contra Ark Inglas The other is where the Discharge is only general without particulars which useth not to be extended to Clauses of Warandice Clauses of Relief or obliegements to Infeft or to purchase real Rights and therefore a Discharge of all Debts Sums of Money Bonds Obligations Clags Claims for whatsoever cause was found not to Discharge a Contract for purchasing an Appryzing of Lands and Disponing the same November 19. 1680. Beatrix Dalgarn contra the Laird of Tolquhon Neither was a Discharge wholly general extended to an Obligation by the party Discharged as Cautioner unless it were proven that the Discharge was granted upon satisfaction of that Debt Hope Bonds Ogilbie contra Napier But it was extended to Contravention though there was a Decreet after the Discharge Hope Contravention Laird of Aitoun contra his Brother Yea a general Discharge in a Decreet Arbitral was found to Liberat the submitters Cautioner Hope Bonds Lady Balmastiner and her Son contra Alexander 〈◊〉 Neither was a general Discharge found to extend to a sum assigned by the Discharger before the Discharge albeit the Assignation was not intimat seing the Discharger was not presumed to know the want of the Intimation unless it were proven that the sum was particularly commoned upon or satisfied at obtaining the general Discharge February 3. 1671. Blair of Bagillo contra Blair of Denhead Neither was a general Discharge extended to sums whereuto the Discharger succeeded after the Discharge February 14. 1633. Halyburtoun contra Huntar 2. Three subsequent Discharges do presume that all preceedings are past from As first The Discharges of three immediat subsequent years Rent June 21. 1610. Nowison contra Hamiltoun This was sustained though the Discharges were only granted by a Chamberlain Hope Clause irritant Laird of Wedderburn contra John Nisbit this was sustained to purge a Clause irritant yea though some of the Discharges were granted by the Father and the rest by the Son as Heir February 17. 1631. Williamson contra the Laird of Bagillo which was extended to by gones though a Bond was
and measures whereof the Law did determine So that if the Children were past by in silence and neither Institute nor exhaeridat the Law declared the Testament void and if they were exhaeridat without a due and true offence it did allow the Children querelam inofficiosi Testamenti that is complaint against the Testament made contra officium which is the Natural Obligation or duty of Parents to provide their Children For the like Reason the same Complaint was competent to the Fathers against the Testament of their Children but because that remeid might have been eleided by exhausting the Heritage by Legacies whereby the institution of the Children might prove ineffectual for their provision Therefore the Law allowed Children a Legittime Portion being the sourth part of the Heritage which that it might extend to all Heirs Falcidius was the Author of that Noble Law restraining Legacies so that there might remain a Portion to the Defuncts Heirs which Law and Portion in Honour of his Name was called the Falcidian Law and Portio Falcidia whereby the fourth part of the free Goods of the Testator remained always Secure against Legacies and when a new Subtilty was invented to frustrat the Falcidian Law By taking away the Heritage not Directly by Legacies but Indirectly by Trust or Fidei-comisses Trebellianus procured that Ordinance of the Senate called Senatus-Consultum Trebellianum whereby that Portion called also Trebelliarica should remain safe against FideiCommissarie Trusts And though it be the Common Opinion of the Doctors That if the Defunct Expressly Prohibit the Heir to take the benefit of his Falcidia or Trebellianica they will be thereby excluded yet the Common opinion is that it cannot be extended to Children as to their Legittime whom the Law hath fullie secured either by Ordaining them to be institute Heirs in Whole or at least in a fourth Part which is their Natural or Legittime Portion And if they be Institute in less they have Right to the Supplement of their Legittime Portion or otherwise they must be Expressly and Justly Exheredat and they have the Common benefit of other Heirs of their Falcidia or Trebellian which the Testator cannot Frustrate with out express Prohibition 16. If there be no lawfull Testament by theLaw of the twelve Tables which is the Ancient Roman Law and in comparison of the Pretorian or Imperial Law is only called the Law or the Civil Law the Succession of Defunct falleth in the first place to the defuncts Children or nearest descendents without Distinction of any lawful Children though Adopted or Posthumus or though of diverse lawful Marriages whether Male or Female So that they remain in the Defuncts familie and in his Paternall power for these who are emancipat and demitted from the familie and from under the Paternall power they are either really or presumptively provided and so have no share of the Succession of this Paternal Power and Emancipation see before Tit. Obligations of Parents These in the familie were called Haredes Sui necessarij because they were ipso facto Heirs without solemnity or entrie Among these the Right of Representation had place so that for example the Grand Children succeeded with theChildren but not equally et per capita but per stirpes For theGrand Children had but the share of their defunct Parent equally among them and so of all other descendents being in the Familie The Pretors did in a part alter this and brought in the Children or Issue emancipat with those in the family without distinction providing the emancipat brought in their goods and adjected the same to the Inheritance per collationem bonorum yet because only the Law that is the Ancient Law could make Heirs The Emancipat were not called Heirs but bonorum possessores The Pretorian Law did also take off the necessitie and dammage of the Succession that none might be necessitate to be Heirs yea all Heirs had the benefite of an Inventar being timeouslyand duelie made beyond which they were not lyable for the defuncts Debts 17. The next degree of Succession by the ancient Roman Law was failing Descendents in the Familie the nearest Agnats of the same degree succeeded But there was no Succession ofParents nor of Cognats related by the Mothers side here Mother comprehends Grand-mother and all other Ascendentsof that kind So the next Degree was of Brethren and Sisters c. 18. The Pretorian Law did also emendat this and first brought in the Fathers with the Brothers and SistersGerman or of both Bloods And thereafter the Tertullian Senatus-consult failling the Fathers brought in the Mother with the Sisters in their share but not with the Brothers German who if there were no Sisters German excluded their Mothers totally and if for example there were a Brother German and a Sister German the Father being dead the Brother had the half and the Sisters half was devided equally betwixt her and her Mother and so the Mother is preferred to the Fathers Father and to the Defuncts Brethren and Sisters of one blood Failling those of this degree the Brothers and Sisters by the Fathers side and these failling the nearest Degree of Agnats in which the paritie of reason inferreth that as in Brothers and Sisters so in other Collateralls these of both blood make a nearer Degree then these of one blood Failling all these the Pretorian Law admitts Spouses to be Heirs each to other the Husband to the Wife and the Wife to the Husband and last the Fisk takes place as last Heir 19. But the. Emperor Justinian by the Novel Constitution 118. cap. 4. Took off all destinction of Agnats and Cognats and brought in the Mother equally with the Father with what reason or approbation we have touched before This is the sum of Succession by the Roman Law wherein there is no 〈◊〉 〈◊〉 〈◊〉 oveables or Immoveables and which takes up no small part of the bodie of the Law and writings of the Lawyers wherein to insist particularlie would raise a great bulk unnecessar for our purpose Whereunto we conceive this Summarie may suffice But while the Roman Empire and Laws were trampled down by the Northern Nations the Feudal Law arose and doth yet continue with the Civil Law of the Romans and other Nations by which there is a great distinction introduced in the Succession in Moveables and in Lands or Immoveables which are now of a feudal nature We shall therefore go on to the Common Feudal Customes 20. The Feudal Customs are locall and it is hard to find a common rule therein for Succession which is variable according to the diversity of place only if we call to mind what was formerly said Title Infeftments of the Distinction of Ancient and Proper Fees and of Declining and Improper Fees The nature of Proper Fees wil hold forth the matter of succession therein for a Proper Fee being freely granted by the Superior to his Vassall for Military service the Vassalls person being chosen by the Superior and a speciall
intestat The ancient way of testing amongst the Romans was either in peace and solemne which was done in presence of the People being convocat callatis comitiis or otherways by a simulat Sale per aes libram wherein the Testator in presence of five Witnesses Romans did hold a Ballance and weighed Money therein and under that form as it were sold his Inheritance for the Money and asked Witnesses Or otherwayes Testaments were made in precinctu when they were standing in Battaile before the Fight without other Solemnity than three or four Witnesses This was the ancient form of testing The matter and power of testing was very absolute according to Equity concerning which this was the Law of the twelve Tables uti quisque rei suae legasset ita jus esto But the after-course of the Civil Law changed both this ancient manner and power of testing and redacted Testaments into three kindes Solemne Nuncupative and Military 3. Solemne Testaments were so called because they required the most Solemnities as First That the Testaments were in writ the Name of the Heir at least being written by the Testator or one of the Witnesses Secondly There behoved to be seven Witnesses specially required all present and subscribing by themselves or another and sealing the Testament at the foot thereof none of which might be Women Pupills Servants Prodigalls or furious Persons neither the Heir himself or any of his Domesticks each Subscription bearing I Titus c. being called and required to be a Witnesse to this Testament which is contained in this Schedule have subscribed it with my hand and sealed it with such a Seal Thirdly The Testator also behoved to subscribe thus I Mevius c. declare this Schedule to be my Testament and I have tested as is contained therein or by another if he could not write who stood as the eighth Witnesse Fourthly The Testament behoved to be made by one continued Act without interruption of any extraneous act least by extraneous acts the mind might be diverted or inconsiderat in so solemne an Act. So the Testament was closed up and sealed And if the Testator opened the Testament it was presumed he changed his mind But after his Death the Witnesses were called together to acknowledge their Seals and Subscriptions at the opening thereof Or otherwayes it was opened by the authority of a Judge before other honest Witnesses And if any of the Witnesses acknowledged not their Subscriptions the Testament was held suspect 4. A Nuncupative Testament is that which was by Word only before seven Witnesses qualified as aforesaid Yet two Witnesses were sufficient in a Father's Testement amongst his Children and a Woman might be Witness therein Or in a Testament for pious Uses five Witnesses did suffice where there was penurie of Witnesses 5. A Military Testament was that which was made by the Souldiers in Warre wherein they had these Priviledges First when they were in procinctu ready to joyn Battaile any declaration of their mind by word or writ though it were written but in the sand was sufficient It was also valid if made during the Expedition with such Solemnities as can be had for the time Yet so that if the Testator lived a year in which he might make it more Solemn it became void Military Testaments have this further Priviledge that the Testator may institute for a time and may institute in a part and so die partly testat and partly intestate which is against a Principle of their common Law 6. The ancient absolute power of testing was by the subsequent course of Law cleared and restrained not only by the declaratory Laws finding testing and otheracts invalide as done by furious Persons out of their lucid intervalls and by Idiots and by Pupills who have not the use of reason or those made by Fraud or Error in the Substantialls or by extortion but more particularly it is limited in these particulars 7. First Filii familiâs Persons in the power and family of their Fathers could not test upon their Goods whether profectitious from their Father or adventitious aliunaè even though their Father consented but only on their bona castrensia acquired in Warre or quasi casirensia as in militia togata 8. Secondly Captives with publict enemies or Persons given in pledge to them or Persons condemned to capital Punishment whose goods are con fiscat or those condemned of Infamy could not test 9. Thirdly by Testament some Persons can neither be institute nor substitute Heirs such as the spurious Children of the Defunct to put a restraint upon such unlawful Procreations But Children begotten on Concubins while those were tollerat could not be institute or substitute these being lawful Children in more then a sixth part of the heretage Only there could be left to spurious Children Legacies for their necessary Aliment Neither could Persons guilty or condemned of Treason be institute or substitute Heirs 10. Fourthly power of Testing is restrained in those who have lawful Children who were necessitat either to institute their Children their Heirs or expresly to exheredat or disheirish them expressing the Cause of so doing For if these institute others and past over their Children in silence the Testament was void And if they unjustly exheredated them they had Quaerelam inofficiosi testamenti to annul the Testament as done against the natural Dutie of Fathers without just Cause 11. Fiftly the power of Testing was restrained in favour of lawful Children that the Testator could not by Legacy or fidei commissum abate from the Children their Portions natural due to them by the Law of Nature obliging Parents to entertain their Children which the Law defyned to be the fourth part of the Inheritance Debts deduced when there were fewer than four Children a third part when four and a half when more If there be no Children this Legittima is due to the Parents Grand Father and Grand Mother but not to Brethren unlesse a base Person be institute Which Portion natural the Testator could not prohibite the Children to withdraw from the Heretage 12. Sixthly the Falcidian Law did restrain Legacies that they might not exceed three fourth parts of the Inheritance so that there behoved to remaine one fourth part to the Heir which therefore was called portio Falcidia And therefore if the Legacies did exceed three Quarters of the free Inheritance Debts being deduced they were abated proportionally that the Falcidia might remain to the Heir 13. This Portio Falcidia differs from the natural Portion in this that the Testator could not prohibite the Heir to take the benefit of the Portion natural but he could effectually prohibite the Heir to take his Falcidia The Reason whereof was because the Falcidia was introduced to the effect that the Wills of the Defuncts might be execute which could not be if the Legacies left nothing to the Heir considerable but trouble as oft-times it falls out So that this being a Remedy in favour of the Testator to make his Will
the Mother Nov. 117. de haered cap. 10. 12. The Custome of the Neighbouring Nations do follow more closely the Natural Law as the Custome of France and the Netherlands as is recorded by Gudel de jure Nov. cap. 13. And Mathias Stephanus 〈◊〉 the like of the Customes of Germany oecon juris civilis lib. 2. cap. 67. § 4. The Custome of this Nation also keepeth close to what is expressed before of the Natural Law as to the Interests and Obligations of Parents and Children and thereby Aliments are frequently decerned to Children to be payed by their Fathers if they expell them from their Families and that not only by the Act of Parliament providing Aliment to Heirs of Land to be payed by the Liferenters but a Father though his Son had no Lands was found conveenable super Jure naturae alendi 〈◊〉 July 21. 1636. Laird of Ramorney contra Law So also by our Custome a Father is Tutor of Law to his Sons being Pupils and therefore a Father was found lyable to the Son for Annualrent of his Mothers third of Moveables remaining in the Fathers Hands February 4. 1665. Beg contra Beg. But a Father was not found oblieged for Annualrent of a Legacy belonging to his Son uplifted by him seing he Alimented the Son December 15. 1668. Margaret Winram contra Mr. James Ellies A Father is also Curatour to his Children specially when in his Family unless other Curatours be chosen by his consent and so a Father discharging the Rent of his Sons Lands set by the Father though he was only Life-renter and the Son the Pupil-Fiar was found valid for years after the Fathers Decease in respect he was lawful Administrator young Rosyth contra his Tennants But a Father being poor was not allowed to lift his Sons Money without finding Caution to make it forth-coming February 12. 1636. Givan contra Richardson Neither might a Father being lapsis bonis assign a Tack acquired by him to his Son though he might uplift the Duties as Administrator January 29. 1629. Lands contra Dowglas So deeds done by such Minors without their Fathers consent as lawful Administrator were found null George Stuart contra Home of Rentoun After Pupilarity a Father is no more Tutor to his Children and so might not discharge for his Daughter being past Pupilarity but only consent with her as Curatour June 26. 1610. John Forrest contra Forrest A Father is lawful Administratour both as Tutour and Curatour honorarie of himself without any Cognition or Solemnity and is not lyable for omission neither is he exclusive of other Curatours But deeds done without a fathers consent by a Son were found null albeit the Son resided not in his Family but followed the Law having no Calling or Patrimony to maintain himself but living on his Fathers Charges neither was his Fathers Subscribing with him found a sufficient Authorizing of him seing he Subscribed with his Father as Cautioner for him December 7 1666. Sir George Mckenzie contra Mr. John Fairholme 13. As to the Fathers power to keep his Children within his Family and to apply their work for his use though controversies in that point have seldom been moved but the matter transacted by consent It is not to be doubted but that Children may be compelled to remain with their Parents and to imploy their Service for their use even after their Majority unless they be foris-familiat by Marriage or by Education in a distinct Calling from their Parents unless their Parents deal unnaturally with them either by Attrocity or unwillingness to provide them with a competent Marriage in due time and with means suitable to their Condition for that obliegement to provide for them would be a ground of exception against them if he would unjustly detain them in these cases or if the Father countenance or allow the Children to live by themselves and to mannage their own Affairs apart from whence his tacit consent to their Emancipation may be inferred in which cases also Zas 19. in lib. utrum turp c. De verb. oblig And Math. Steph. oecon juris civilis lib. 2. cap. 1. doth declare that the Consuetude of Germany is the same with our Customes before expressed The English account Children to be Emancipat so soon as they passe their Minority Cowell Institut jure Anglicani Tit. 12. § 4. TITLE VI. Obligations of Tutors and Curators Pupils Minor and persons Interdicted 1. The rise of Tutory in the Law of Nature 2. Order of Tutory by the Law of Nature 3. The Naturall Obligation of Tutors 4. Pupils Obligations to their Tutors 5. Kinds of Tutors by the Common Law 6. Tutors Testamentar 7. Tutors Testamentar exclude all others 8. Tutors of Law who 9. How Tutors of Law are entered 10. The time within which they must enter 11. Tutors Dative 12. Pro-tutors 13. Factors for Tutors 14. Con-tutors 15. Tutors custody of the Pupils Person 16. Tutors Authorizing their Pupils 17. Tutors or their Factors Rights relating to the Pupils accress to them 18. Tutors can only do necessary not free arbitrary deeds but may not sell Lands sine authoritate Judicis 19. Tutors are lyable for Annualrent for their Pupils means 20. Tutors are conveenable with their Pupils and lyable in quantum intus habent 21. Tutors Accompts 22. Tutors are lyable for exact diligence both for intromission and omission 23. Tutors are lyable in solidum 24. Tutory how finished 25. Tutors of Idiots and furious Persons 26. Gesta Tutorum accrescunt Pupillis 27. Removing of suspect Tutors 28. Duty of Pupils to their Tutors 29. Rise of Curators 30. Curators ad lites Negotia 31. Minors may at their option choose or not choose their Curators 32. Minors deeds having Curators without their consent are ipso jure null nisi in quantum â—â—erantur 33. Curators consent not requisite to latter Wills 34. Restitution of Minors upon enorme Lesione 35. Minor non tenetur placitare super haereditatem paternam 36. Differences betwixt Tutors and Curators 37. Duty of Curators 38. Curators or Interdictors for Prodigals or lavish Persons 39. Interdictors constitute causa cognita 40. Interdiction by Parents consent 41. Publication and Registration of Interdictions 42. Interdictions only extend to Heretable Rights not Moveables not to Personal Executions 43. Interdictions are only Competent by way of Reduction 44. Interdictions cannot be taken off but by Authority of a Judge TUTORS and Curators succeded in the place of Parents and their Obligations have a near resemblance and therefore shall be here fitly subjoyned though in the constitution and duties of Tutors and Curators the Positive Law predomineth yet that without any Positive Law or Contract there is a duty of Tuition and Protection of Orphans and specially upon these who by relation of Blood are their nearest Kinsmen and in place of their Parents it will appear by what ensueth and what is superadded either by the consent of parties in Curators or by the Law in Tutors with the condition and interest of
in Fee in certain Lands if the Sons Relict be no otherwayes provided she may claim a Terce of these Lands though the Father did not perform his obliegement which may be construed as fraudulent and in her prejudice 17. Terce is excluded by all wayes whereby the Marriage was dissolved upon adultery or desertion or by the death of either party within year and day without Children or may be found null of which formerly amongst Conjugal Interests Tit. 4. And also by whatsoever way the Husband is sine frande divested the Terce is excluded as by a Crime inferring Forefaulture or Recognition by the Husband or his Superiour though not declared before his death or by the Ward and Non-entry of his immediat Superiour There was one decision observed by Spotswood and Hope betwixt the Relict of John Cranstoun and Crichtonn That an Apprising without Infeftment did exclude a Relict from her Terce it were hard to sustain that in all cases even though there were a Charge against the Superiour upon the Apprising which as it would not exclude the Superiour from the Ward Non-entry or Relief So neither should it exclude a Relict from her Terce unless she had a Conjunct-fee or Life-rent by consent equivalent to a tertia rationabilis And though our custom hath far deborded from the ancient design of Terces whereby a reasonable Terce was appointed and if any voluntary Liferent were granted Craig observes that it was ever understood to be no more but for clearing and securing the Tercer against the trouble and difficulty of recovering possession by a Service and therefore was alwayes retrenched unto the Terce Yet now not only real voluntary Provisions are sustained though of the Husbands whole Estate and Conquest albeit granted in aestu amoris with this temperament only That if the Heir have no other Estate the Liferenter must intertain and educat him according to his quality by Act of Parliament which is more extensive then a simple aliment but she is also lyable super jure Naturae to aliment her other Children if they have no provisions But Custom hath so far proceeded as not only to allow voluntary provisions how great soever but therewith to add a Terce of any other distinct Tenement unless the voluntary Liferent were accepted in satisfaction of the Terce which indeed were reasonable in many cases The voluntary Liferent being oftimes small and suitable to the Estate the parties have when they Marry but cannot make a rationabilis tertia if by Conquest their Estate should grow great neither is it reasonable that though the voluntary provision be never so great that a Terce should be given though litle remained to the Heir only because by Ignorance or negligence the clause in satisfaction were not adjected Which satisfaction may not only be proved by Write but by Presumption from the design of parties in the Contracts of Marriage which are uberrimae fidei For suppose which is ordinary enough that a Liferent of Lands are provided by the Contract of Marriage yet some Lands are not mentioned but there is a Clause adjected for the Liferent of the whole Conquest were it rationabilis terlia to give the Wife a third of that which is omitted though she had a particular Liferent of more and the whole Conquest though never so considerable Yea it came lately to be 〈◊〉 whether a Liferenter Infeft in an Annualrent out of her Husbands Estate consisting of one Tenement lying Contigue the Annualrent being two thirds of the Rent thereof because it bore not in satisfaction of a Terce The Relict did also claim a Terce out of that same one Tenement which is yet sub judice But so far as I can understand by former Decisions it hath not yet been determined whether Relicts should have a reasonable Terce according to the Terms of the ancient Law inducing Terces Or whether she should have a Terce proportionable or suiteable or not though she be already suitably provided if she have not expresly accepted her former provision in satisfaction of her Terce Which Terce is most favourable when suitable and therefore takes place in the two cases before mentioned even beyond the Letter of the Law and therefore if it were unproportionable to the quality of the Husband and Wife who might have a great Estate in Money and little Land a voluntary Provision out of any Tenement should not exclude a Terce out of the remanent of the same Tenement or of any other Tenement unless the Relict were sufficiently provided before There is one Interloquter betwixt Jean Crightoun and Kirkhouse her Son wherein it was alledged that she was sufficiently provided to more then a Terce of her Husbands Estate which was repelled but the Case was in possessorio where the Relict was already served and kenned to a Terce and was pursuing the Tennents so that the Service and Kenning being a standing Sentence doth not determine what might be done in petiterio Neither was that allegeance proponed and offered to be proven but only alledged informative whereas the Defence proponed was that the Relicts provision was but a minut of Contract bearing to be extended with all Clauses requisite whereof there was a Process of Extension depending including the acceptance in satisfaction of the Terce as being ordinary but it was replyed that that Clause was omitted in the full Contract already extended But now by the late Act of Par. 1681. cap. 1. there is no place for a Terce where there is a provision for the wife of liferent unless a Terce be expresly reserved Craig proposeth another case whether the 〈◊〉 would have a Terce of Lands competent in Fee to her Husband and so possest by him though by fraud or neglegence he never Infeft himself which he says is the opinion of Litletoun and it is not without much ground though it hath not come to be decided with us voluntary Liferents in satisfaction being so ordinary for though the appearand Heir not entering cannot burden the Fee with his debt yet his jus apparentiae gives him or his Executors right to the Fruits during all his life whereunto it would be suitable enough that though his voluntary provisions to his Wife could not affect the Fee yet the legal provision of a reasonable Terce might By the Custome of England Relicts loose their Terces by falling in publick and atrocious Crimes as Treason Murder Witchcraft although they be restored by the King by way of grace because thereby the memory of their husbands and fame of their Children are disgraced I know no such Point to have been drawn in question with us Craig in the forecited place holds that if the Fiar Transact for his own or his Superiours Forefaulture or Recognition or obtain a Gift thereof it should accress to the Tercer whose provision is onerous importing Warrandice and therefore might be effectuall against the Fiar if he represent the Husband and in all distresses Relief doth import what the party distressed truly payed
the Superiour by which the Vassal can be accessory to no attrocious Deed against the Life and Blood of the Superiour but against any Infamy may befal him or any great detriment in his Estate and so will reach to Deeds of hurt or disgrace to his Wife or Children by Adultery Fornication or attrocious Violence upon their persons or attempts thereunto and may also extend to the revealing of the Superiours secrets or not Defending him against his Enemies or such as attack him or deserting of him in that case and in case of a necessary flight by overpouring in not crying for help and relief and in lawful War in not concurring with him or deserting him while with any probability of prevailing he stood in fight if the Vassal were then near him but it will not import his concourse active in private quarrels by force of Arms which are not warrantable 33. In all cases the ignorance of the Vassal not being affected or his weakness will excuse these Delinquencies and whatever he acteth in self-defence or upon provocation of the attrocious injury of the Superiour or by publick Authority or in the service of his Prince or anterior Superiour in Ward-holding Or unless the attrocious Deeds be past from by the Superiour by owning his Vassal after the knowledge thereof or by a considerable times forbearance to quarrel the same especially when in the mean time either the Superiour or Vassal dies for though death obliterats Crimes as to the punishment yet the righ arising to the Superiour in the Fee from the Delinquence as a resolutive condition is not excluded by the Vassals Death if the Superiour were ignorant of the Fact or not in capacity to vindicat the same through publick Calamity or his Pupilarity or absence but by the mutual friendship and strict Union betwixt Superiour and Vassal small evidences will import the passing by former Delinquencies especially when not questioned during the life of both parties There are multitudes of specialities proposed by Craig as Delinquencies resolving Fees not only in relation to the Superiour his Person and Family but also of invading his House befieging the same or entering it by force or invading his Property which is the ground of Purprysion acknowledged by our Custom or by denying or refusing to show the Superiour the Marches of the Fee or denying any part of it to be holden of him or not showing him his Holding and Investiture being solemnly called to that purpose which take no place with us for our ordinary custom for Superiours as well as others is to pursue Improbations of their Vassals Rights wherein the Certifications is not the loss of the Fee but the presumptive falsity of the Writes or the denying to do justice to Superiours but also in relation to the Fee if he waste or deterioat it Yea in relation to the Vassals own Person as if he fall in Incest or if he kill his Brother or commit any Paracide or if he contract friendship with the Enemies of his Superiour And generally whatever may make him unfit or unworthy to attend his Superiou or to be in his Court but none of these are implyed in the Fidelity of any Vassal There be special grounds of resolution or extinction of Fees by the particular Nature or Tenor thereof as Feues become extinct ob non solutum canonem and other Fees are extinct by resolutive Clauses as to both which we have spoken Title 13. § Craig doth hold that by the delinquence of Vassals Conquest or feuda nova become extinct and return to the Superiour but Heretage or feuda vetera do but become extinct as to the delinquent Vassals and his Descendents but is not returned to the Superiour but divolved to the next Collateral of the delinquent Vassal descending from the first Vassal who would have succeeded if the delinquent Vassals had died without issue and who must enter Heir to the delinquent Vassals predecessor but in this the interest of the Superiour is too far restricted for we have no custom nor tenor to enter any person heir to a Defunct while a nearer heir is existent whatsoever his delinquence be except Paricide He doth also move this question That if the Vassal have committed a Feudal delict against the Superiour and a publick crime inferring forefaulture whether the Fee would fall to the King or to the Superiour or if the first sentence of forefaulture or recognition would prevail but does not determine it Yet the first deliquences sufficient to extinguish the Fee if insisted in must give the preference for the sentence of forfaulture or recognition is but declaratory and hath effect not from the sentence but from the deed inferring it There is no difference whether the delinquence inferring recognition was before the Vassal was actually entered or after but it is more questionable whether recognition would be incurred by the deeds of the appearand Heir in his predecessors life which could have no effect as to Collaterals who are not alioqui successuri seing they may be excluded by a descendent which in men is alwayes in hope And if the heir apparent die before his predecessor it can have no effect to exclude either his Collaterals or Descendents and it is more probable that though the heir apparent should survive he would not be excluded seing feudal delinquences are now so little extended 34. It hath been much and long debated and is not yet decided whether Recognition can be incurred for ay attrocious deeds dne by sub-vassals whereby the Superiour might claim the right of the sub-vassals Fee to fall to him by Recognition Or Whether Recognition can only be incurred by the deeds of the immediat Vassal The case in question was where a sub-vassal rose in rebellion against the King whereby his Fee as all his other Rights were confiscate to the King by forefaulture which could but confiscate them as they were in his person with the burden of all real Rights of Liferent Annualrent or other subaltern Infeftments of the forefaulted person But if the forefaulture of the sub-vassal did also comprehend Recognition the sub-vassals Fee would fall to the King and belong to his Donatar without any real Right or Burden contracted by the forefaulted person except such as were confirmed by the King either by a special Confirmation or by that general consent of the King inviting all his Subject to set their Ward-lands feu by the Act of Parliament 1457. cap. 72. which would preserve such Feus being constitute before the Act of Par. 1633. rescinding that Act as to the Vassals of the King and Prince as was found Feb. 12. 1674. Marquess of Huntley contra Gordoun of Cairnburrow November 16. 1681. Campbel of Silvercraigs contra Laird of Auchinbreck and the Earl of Argyle And therefore if Recognition were implyed in forefaulture in that case it behoved to infer a general rule that Recognition might be incurred by all attrocious deeds against gratitude and fidelity omitted not only by the