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to his predecessors should devolve on its new occupant. The commission of the present holder of the chair accordingly constitutes him professor, not of International Law simply, but of “Public Law and the Law of Nature and Nations.”
Three of the lacking subjects were now provided for in Edinburgh ;-the Professor of Constitutional Law and History was ap. pointed to teach the Jus publicum; a sort of Dominium Eminens in it, (except as regarded Constitutional History,) being left with the Professor of Public Law; and to the Professor of Public Law were assigned the two subjects of Natural Law, or the Philosophy of Law (what is called General Jurisprudence in England), and the Law of Nations.
But the first of the subjects we have mentioned the first in the chronological order of study, and not the least in practical importance- was left out in the cold. Nobody was instructed to tell the student, at the outset of his career, wbat the science was that he was expected to study. What did it include ? how was it subdivided ? what was the relation of its several branches to each other? in what order ought he to study them ? and where was he to look for the best and most reliable information regarding them? These were questions which would naturally present themselves at the very threshold to any intelligent student, and the value which is attached to their being answered to him, not in Germany only (where for the last half century the press has positively teemed with encyclopædias), but in the other learned countries of Europe, the following passage from the preface of M. Pellat's French edition of Falk's Encyclopædia will sufficiently demonstrate :-“In 1838, M. de Salvandy, Minister of Public Instruction, proposed to the Commission, on the higher legal studies, the following amongst other questions : Ought we to introduce into our schools those encyclopædie courses which in Italy and in Germany bring together and review the whole science ? In that case, ought we to follow the example of the majority of Foreign Universities, and place them at the commencement of the studies of the Faculty of Law; or reserve them for the conclusion, according to the practice of some of the others. In 1870, another minister, M. Cousin, answered the question by creating “a general Introductory course to the study of the law;' and he thus expressed himself, in presenting to the king (Louis Philippe) the scheme of the ordinance which established a chair for the teaching of that subject in the Faculty of Paris (Moniteur
Universal, 30 Juin. 1840) :-"For a long time past all those whose opinions are worth listening to have been calling for a preliminary course of lectures, the object of which should be to enable the younger students to find their place in the labyrinth of Jurisprudence, which should give a general view of all the parts of the science, mark the distinct and special object of each of them, their reciprocal dependence, and the links by which they are so closely bound together--a course which should determine the general method to be followed in the study of the law, with the particular modifications which each branch demands-course, in fine, which should indicate the more important works which mark the progress of the science. Such a course would elevate the science in the eyes of young persons by the character of unity which it would impress on it, and would exercise a happy influence on the labours of pupils, and on their moral and intellectual development."
How the want has in fact been supplied, we reserve for another number.
ON THE DIVISION OF THE ANN OR ANNAT BETWEEN
THE WIDOW AND CHILDREN OF A MINISTER.
THERE are not a few matters of practice in which much diversity exists in different parts of the country, and as to which there is unfortunately no distinct authoritative rule to reconcile this variance. The division of Ann as between the widow and children of a deceased minister is one of these matters. districts the division is made equally between the widow and children ; in other parts, the stipend, so far as forming the Ann, is treated in the same way as the outstanding stipend due at the time of the minister's death, and as part of his moveable succession and executry, and as such one-third only is given to the widow, and the remaining two-thirds to the children, or other next of kin.
The provision had its origin in Popish times, when neither widow nor children of ecclesiastics could, as such, be recognised in law. No such questions as to division between these parties could, therefore, then exist, and the next of kin could alone be recognised, and would claim and receive amongst them equal shares of the fund. In those times the patronage and preference of the favoured few received the name of nepotism, whilst per
haps in point of fact, though not in law, filiusism might have been the more appropriate denomination of the protegés of Churchmen,
The earliest Statute on the subject appears to be the Act 1546, passed the third Parliament of Queen Mary, and is as follows:“At Monktoun-hall (9) the aucht day of September, the zeir of God, ane thousand five hundreth and fourtie seven zeires.
The quhilk day my Lord Governour, with advise and consent of the Prelats, Kirkmen, Earles, Lordes, Barronnes, and all uthers Patrones of benefices, baith spiritual and temporal, understandand that the haill bodie of the realme, is passand forwarde at this time, to resist our aulde enemies of England, cumming in this realme to invade the samin : Ordainis, that quhat-sum-ever kirkman that happenis to be slaine in this present armie, hurte to the death, or takis seicknes in the samin, and dies in the said seicknes gangand, remainand, or cummand therefra: That the nearest of the said Kirk-mennis kin, sall have the presentation, provision, and collation of his benefice that time allanerly: And the samin to be disponed to the nearest of his kin, that happenis to be slaine, or decease, in manner foresaid, maist able therefore : And the profites of their benefices, with the fruites speciallie on the grounde, with the annat thereafter, to perteine to them and their executoures alsweil Abbotes, Priores, and all uthers Religious-men, as all uthers Kirk-men."
Another Act almost in the same terms, though passed under somewhat different circumstances, is the Act 1571, c. 41, in the reign of James the Sixth, which is in the terms following :-“ Anent Kirkmen that happenis to be slaine in our Soveraine Lordis service, in defence of his hieness authorities : Item, Our Soveraine Lorde, with advise of his Regent's Grace, the three Estaites, and haill body of this present Parliament, hes statute and ordained, that in case ony our Soveraine Lordis trew lieges, beneficed men happinnis to be hurt, slayne, or wounded to the death, and thereafter of the saidis hurtes, or woundes to die in our Soveraine Lordis service, and in defence of his Authoritie, at ony time, against the foirfalted and declared Traytours, presently being within the Castel and Burgh of Edinburgh, and uthers, bis Majesties open and manifest enemies, resisters and conspiratours against his hienes authoritie, during all the time of the open and manifest resistance thereto, that the nearest of the said Beneficed mennes kyn, abel and qualified, sall have the presentation, provision, and
collation of his benefice, for that time allanerlie. And the samin to be disponed to the nearest of his kyn, that happenis to be slayne, or decease, in manner foresaid, being alwaies abil and qualified therefore as said is. And the profites of their benefices, with the fruits speciallie on the ground, with the annat theirafter to perteine to them and their executors, alsweil Abbottes, Priores, as well uther Kirk-men."
These singularly-worded statutes recognise the Annat as then existing, and their scope seems to be confined to members of the Church militant, who in those days were worthy of the name, and who usually wore mail underneath their cassocks; and so, when striking their breasts in solemn protestation of peaceful aspirations, often occasioned their “consciences to clatter” the
The earliest case on the question is one reported by Durie, p. 88, 9th Decr. 1623, Colonel Henderson's bairns. It is there noted “Annat of benefices pertaine to the Executors of the defunct, and may be evicted for the deceased's beneficed person, his debts, by his creditors, albeit it useth not to be confirmed, nor comes under the defunct's testament.”
The next case is also reported by Durie, 19th July 1626, the Earl Marischal against the relict and bairns of the minister of Peterhead—“ In that case the Lords found that, if a minister die before Michaelmas and after Whitsunday, the relict and heirs are entitled to the whole of that year's profits and rents of the benefice; but where he died after Michaelmas, they were entitled not only to the whole of that year's rents, but also the half of the subsequent one.” The case of Earl Marischal is fully reported by Durie, Appendix to Morrison, p. 21.
This case was followed by another case, 28th Dec. 1628, the Bairns of the Bishop of Galloway v. Couper, Mor. 470, where it was recognised " that the annat pertained to the relict and bairns, conform to the ordinance of the Act which provides the funds of the benefice for the year after the late incumbent's decease, to pertain to his wife and bairns."
The next case is 16th June 1629, Smeiton v. the Relict of the late Minister of St. Bothans, Mor. 461.
The contest in this case was between the newly-inducted minister and the widow of the last incumbent, as to what formed the annat; and the Lords found " that the late minister dying in April, before any of the terms came, no part of that year's stipend was due to him for
VOL. X. NO. CXVIII. -OCTOBER 1866
that year, and consequently could not be claimed by his relict and bairns by any other right but as the annat, by virtue whereof only it was found to pertain to them and not otherwise.” The purport of these decisions is correctly noted on the margin of the last cited case, thus—"The annat extended to a whole year more than the defunct had right to proprio jure.” This indicated that the annat was not executry, but was payable to the relict and bairns and next of kin in their own rights.
The next case in the Books is 26 July 1661, Kér v. Parishioners of Cardine, Mor. 462. The son of a deceased minister (who died in Novr.) sued the succeeding minister and parishioners for Annat. The Pursuer maintained that the annat, as being in bonis defuncti, but indulged by the law to the wife, bairns, and nearest of kin, to the defunct minister, and so originally their right, the same needs no confirmation. The Lords found that “the Annat needed no confirmation, but did only extend to half a year more than the defunct had right to proprio jure.”
The decision in the case of Smeiton was authoritatively repeated July 1662, in Wemyss v. Parishioners of Lasswade, Mor. 462, and the Lords found “that a minister dying in January, the following year's stipend is due to his Executors as Annat.” The same case seems again to appear on page 472 of Morrison.
In the case 19th July 1664, Scrimgeour v. Executors of Murray, Mor. 463, it is noted “that it fell into consideration whether the annat would only belong to the wife, there being no children, or half to the wife and half to the nearest of kin. The Lords thought it would divide equally betwixt them, though it was not resolved whether it needed to be confirmed, or would be liable to the defunct's debts." The same parties again appear in different question (Mor. 464.) The widow now pursued the Executors of her husband, and "craved the annat as belonging wholly to her, seeing there were no children, , and annat being in favour of the wife and children, the nearest of kin could have no part thereof. The Executors answered that the annat was introduced in the time of Popery, when the clergy had no wife nor bairns, and so did still most properly belong to the nearest of kin who would get it if there were neither wife nor bairns. The Lords found the annat to divide betwen the relict and the nearest of kin.” This implied an equal division between the widow and nearest of kin.
In the case 6th July 1665, Colville v. Lord Balmerino, (Mor.