The subject of succession is treated by Lord Mackenzie in a very ample
and satisfactory discussion. In particular, the chapter on ‘Intestate
Succession in France, England, and Scotland’ will be found highly useful
to the international jurist. Lord Mackenzie has not failed to observe
here the striking peculiarity of the Scotch law, by which, with some
qualifications very recently introduced, intestate succession, whether
in real or personal estate, goes entirely to the agnates or paternal
relations, and not at all to cognates or those on the mother’s side.
This was the law of the Twelve Tables, but it was wholly altered in
process of time, and, under Justinian’s enactments, paternal and
maternal relations were equally favoured. In retaining the old
distinction, the law of Scotland seems now to stand alone. The
peculiarity may perhaps be explained by the strong feelings of family
connection or clanship which so long prevailed in Scotland, and which
bound together the descendants of the same paternal ancestor by so many
common interests. But it is certainly singular that it should have
continued to the present day with such slender modifications; and it is
no small anomaly that, while a man may succeed to any of his maternal
relations, none of his maternal relations can in general succeed to him,
even in property which he may have inherited from the mother’s side.
The portion of the work devoted to actions and procedure introduces a
clear light into a subject extremely technical, and often made very
obscure by the mode in which it is treated. We have only room for a
short extract as to the _remedium miserabile_ of Cessio Bonorum:—
“The _cessio bonorum_ has been adopted in France as well as in
Scotland. By the ancient law of France, every debtor who sought the
benefit of _cessio_ was obliged by the sentence to wear in public a
green bonnet (_bonnet vert_) furnished by his creditors, under the
penalty of being imprisoned if he was found without it. According to
Pothier, this was intended as a warning to all citizens to conduct
their affairs with prudence, so as to avoid the risk of exposing
themselves to such ignominy; but he explains that in his time, though
the condition was inserted in the sentence, it was seldom acted on in
practice, except at Bordeaux, where it is said to have been rigidly
enforced.
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