rule of law, 'No man can transfer to another a larger right than he had himself."

(10) Again, as the Earl of Douglas assents to the acquisition of the land of Garioch made by the Earl of Mar, he ought to assent to the acknowledgment that these obligations were not due from the land. Otherwise he ought not to enjoy the benefit of the land, on the ground of the possession of which he seeks to make various attacks on the rights of the monks. 6 Because what any one assents to when it is in his favour he is bound to receive when it makes against him.' (11) Again, the Earl of Douglas is not the patron of the monks of Lundors, as he claims, for the right of patronage is the power of presenting any one for institution to a simple benefice when vacant. In another sense of the words, 'right of patronage' is said to be acquired by the manumission of one's own slave (as in the Pandects). But in neither of these ways is the Earl of Douglas a patron, therefore his claim falls to the ground. (12) Again, an heir is one who succeeds to the whole right (jus) of one deceased, and as such is called successor of right (saccessor juris); and an exception which is competent against the deceased is competent against such a successor. But such an exception was objected to the deceased Earl of Mar, and the Earl of Douglas cannot make another exception in law because he has a 'lucrative title,' that is, a title by bequest, bringing a gain with it. And the principle is illustrated by the case of a purchaser using a purchase which the seller had obtained by fraud (as discussed in the Pandects), in which case the purchaser is liable to suffer loss. (13) Again, a donee and other legatees are not responsible to creditors in the matter of the property which has come to the successor in law. Therefore donees are not to be accounted as heirs, because heirs are bound to answer for the debts of the deceased. Those who are not heirs are not responsible as if they were heirs. Since therefore the Earl of Douglas is, as regards the Earl of Huntington, a donee and not a successor to his whole right (successor in totum jus defuncti), it follows clearly that he is not an heir, nor is there any obligation to render to him the spiritual observances (obsequia spiritualia) that were due to the heir. And since the Earl of Douglas was universal successor to the Earl of Mar, who on full information acknowledged that the services he had claimed were not due by the monks, it is plain that he, as his successor, cannot make this claim; nor ought he to impugn the Earl of Mar's action since he reaps great advantage from the succession.

The 'opinion' then sums up and repeats the arguments which had

1 I have ventured on the supposition that the words 'nemo plus juris, etc.,’ indicate the passage from Ulpian, which will be found in the lib. 1. tit. xvii. of the Digest, and run, ‘Nemo plus juris ad alium transferre potest, quam ipse haberet.' I do not see how the words 'ergo nomine,' etc., can be construed unless we suppose them to be a question, the answer being in the words Nemo plus juris, etc.'

been already set forth, and then adds that this view of the case not only makes for the liberty of the monastery, but expresses the royal rights, and defends the just claims of the crown, which would suffer injury by the harm which would be inflicted on the monastery in admitting the claim of the Earl of Douglas.

The Earl of Douglas cannot contend that he is entitled to raise the claim on the ground that a personal right conveyed by writ is transferred to a singular successor, inasmuch as in this case there is no special right conveyed by writ in respect to these lands, except the obligation on the part of the monks of offering prayers, which prayers are due to the universal heir (heir general); and in the written charters it is to the general succession, not to a succession of a part, that this obligation refers.

Nor can an objection be raised on the ground that the abbot acknowledged the validity of the Earl of Douglas's processes at law by appearing at the earl's court, because he in no way assented to the process at law, though he did not impugn the order of the proceedings.1

[fol. 25.]

quero.

CL
Casus.

MONASTERIVM de Lundors, diocesis Sancti Andree, habens quasdam ecclesias parrochiales infra dioceses de A. de B. sibi vnitas, de quibus abbas et conuentus eiusdem recipiunt grossos fructus, videlicet decimas garbales ad utilitatem monasterii sui, que quidem ecclesie in se habent curatos per abbatem et conuentum etc Episcopo presentatos, et per ipsum receptos, et ad curam et administracionem earundem admissos, ut moris est in ceteris.

Hic queritur si abbas de Lundoris, Sancti Andree diocesis, ad Synodos episcoporum A. et B. venire teneatur racione ecclesiarum supradictarum, et eisdem episcopis obedienciam et alia facere que episcopo pertinent, Videtur quod sic: per c. conquerente de off. Ord et c. quod super hiis de ma. et ob. xviij q. ii. c.

1 This abstract (omitting all the references to the Corpus Juris Civilis, the Corpus Juris Canonici, and the legal commentators, which will be found, so far as they have been identified, in the Notes and Illustrations) gives substantially the argument of the legal expert who drew up this opinion. It will be observed that the opinion goes beyond the question of the Earl of Douglas's claims upon the monks as their assumed feudal superior. It contends that even the prayers for the weal of the soul which were due by the monks to the heirs of Earl David were not due to one who was not an heir, nor a successor general.

Abbates. Contrarium tamen verum esse videtur, per jura allegata que intelliguntur de Episcopo in cujus diocesi situatum est monasterium de L. et infra quam dictus Abbas populum habet et administracionem, Et non sic in casu proposito, quia monasterium de L. infra diocesim Sancti Andree, nec ejusdem Abbas infra diocesas A. et B., nec populum nec administracionem habet unde teneri videtur etc. Item nec quisquam ad Synodum alicujus episcopi venire tenetur nec eidem juramentum facere nisi qui sub eodem curam animarum vel rerum ecclesiasticarum administracionem habet: ut c. nullus, de jurejurando: xxiij. di. c. quamquam, xxii. qu. ultima, §. ultimo. Et cum dictus Abbas de L. infra dioceses A. et B. nec populum nec administracionem set nec ullam curam habere videtur unde ad hujusmodi non tenetur ut xviij q. ultima § canonicam et juribus allegatis. Item omnes religiosi in favorem religionis videntur esse exempti, xviij. q. ultima. § canonicam allegat xviij. di. c. Episcopus etc. ex ore sedentis, de privilegio in fi. c. dilectus, de off. ord. glo. ii. circa medium. Set racione administracionis perpetue et populi quem habent abbates et prelati alii religiosi, subsunt episcopo loci et ad hujusmodi tenentur: ut c. quod super hiis de ma. et ob. xviij. q. ii. Abbates et sic hujusmodi non habentes non tenentur: et cum venire et alia hujusmodi facere sunt onerosa et odiosa restringenda sunt, de illa regula juris li. vj. odia etc. Item, si dicatur quod quamvis ecclesia cum clericis suis ita exempti sint quod non veniant ad Synodum nec excommunicari vel interdici non possunt, tamen si aliquis clericorum loci illius privilegiati aliam ecclesiam parrochialem, curam et populum habentem, obtineat, per hoc subest episcopo loci, et posset in eum suam jurisdiccionem exercere non obstante privilegio suo, non obstat hoc casui isti. Item, ad hoc quod quis ad Synodum venire teneatur et episcopo alia incumbencia facere requiritur quod eidem subsit aut lege diocesana aut lege jurisdiccionis in quibus legibus totum jus et potestas et episcoporum consistit, ut c. dilectus, de off. ord. cum suis notatis, set abbas de L. quavis racione monasterii sui recepit decimas garbales quarundem ecclesiarum parrochialium in diocesi A. et B., nec episcopis earundem propter hoc subest lege diocesana, quia monasterium de Lundors de quo est abbas est diocesis Sancti

[fol. 26.]

Andree, quod est manifeste verum, nec idem abbas eisdem episcopis subesse videtur lege jurisdiccionis quia nullam curam, nullam administracionem, locum, vel populum infra dioceses A. et B. habet dictus Abbas propter que eisdem episcopis subesse videtur, aut qua racione in persona sua jurisdiccionem habere possit quisque eorum.

Et hoc potissime cum ecclesie parrochiales infra dictas dioceses, monasterio de L. annexe, in se habent curatos qui subsunt episcopo loci qui ad modum patrie dicuntur vicarii, set pocius veri rectores sunt; ut c. suscepti re. de preb. li. vj, qui ad Synodum veniunt, episcopo respondent, obediencias et alia incumbencia pro et de ipsis ecclesiis episcopo faciunt, in quibus si velit possit episcopus suam jurisdiccionem communem exercere, et per hos rectores episcopo per abbatem et conventum presentatos, per ipsum ad earum curam receptos et admissos, exoneratur abbas de L. Et si non exoneratus esset sequeretur in quociens et daretur religiosi evagandi extra claustrum, materia quod contrarium est religioni et jure satis prohibitum. Non negatur tamen quin episcopus de istis ecclesiis possit ab abbate caritativum subsidium petere : secundum quod jure traditur c. conquerente, de off. ord., nisi privilegio fulciantur.

(Abstract)

NOTE. This, like Charter CXLIX., is a legal opinion on a disputed question. The passages of the Canon Law referred to will be found in Notes and Illustrations. The letters C.J.C. = 'Corpus Juris Canonici,' have been inserted in square brackets to indicate where references to the Canon Law occur.

'A CASE.'

"THE monastery of Lundors, in the diocese of St. Andrews, has united to it certain parish churches within the dioceses of A[berdeen] and B[rechin], from which parishes the abbot and convent of the same receive the great fruits (grossus fructus), to wit, the garbal tithes, for the use of their monastery. The parish churches have in them curates [i.e. vicars perpetual with cure of souls], who have been presented to the bishop by the abbot and convent, and, having been received by him, have been admitted to the cure and administration of the same, as is the custom elsewhere.'

It is now inquired: 'Is the Abbot of Lundors, in the diocese of St. Andrews, bound to attend the synods of the Bishops of A. and B., and render obedience and the other dues that belong to the bishop?'

It seems that he is bound so to do. [C.J.C.]

Yet the contrary seems to be true. For the laws just alleged are to be understood of the bishop in whose diocese the monastery of L. is situated, and within which diocese the abbot has his people and administration. But it is not so in the case proposed. For the monastery of L. is within the diocese of St. Andrews, and the abbot of the same has neither his people nor administration within the dioceses of A. and B.

Again, no one is bound to attend the synod of any bishop or to take the oath [of canonical obedience] to him, unless he has, under that bishop, cure of souls, or the administration of things ecclesiastical [C.J.C.]. And since the said Abbot of L. has neither people, nor cure, nor administration, within the dioceses of A. and B. he is not bound.

Again, all religious seem to be exempt, by reason of the favour shown to religion [C.J.C.]. But by reason of a perpetual administration and of the people which they have, abbots and other monastic prelates are subject to the bishop of the place and are bound to the duties of the kind in question [C.J.C.], and abbots who have no such people or administrations are not bound.

And since to attend synods and perform the other things mentioned are 'odious and onerous,' they are to be restrained by the rule of law [C.J.C.].

Again, if it be said that, although the Church with its clerks are exempt, so that they need not come to the synod, nor are liable to be excommunicated or interdicted by the bishop, yet if any of the clerks of the privileged place should obtain another parish church which has people and the cure of souls, he on that account is subject to the bishop of the place, who is able to exercise his jurisdiction over him, notwithstanding his privilege, such a statement raises no obstacle in this case.

Again, those who are subject to a bishop and bound to attend his synod and perform duties to the bishop, are so bound and subject either by diocesan right or by the right of jurisdiction [C.J.C.], in which two rights all the right and power of a bishop consists [C.J.C.]. But the Abbot of L., although by reason of his monastery he receives the garbal tithes of certain parish churches in the dioceses of A. and B., is yet not subject to the bishops of the same, on that account, by diocesan right, since, as is manifestly true, the monastery of which he is abbot is in the diocese of St. Andrews; nor is he subject to the bishops by the right of jurisdiction, because he has no cure, administration, place, or people within the dioceses of A. and B. on account of which he might seem to be subject to those bishops, or by reason of which either of them could have jurisdiction over his person.

And this is more especially true in the present case, because the parish churches within the said dioceses, which have been annexed to the monastery of L., have in them those admitted to the cure of souls