the Issue had been upon the Truth of the Testament as it was upon the Bastardy it had been referred also to the Spiritual Judges CHAP. VI. Whence Linwood thinks the Jurisdiction Intrinsecal came to the Church BY what is before delivered it appears that the Intrinsecal Jurisdiction or Probate was in the Church and that by express testimony as anciently as the time of H. 2. and by all probability it was in setled use before that time being spoken of in that Treatise called Glanvill's as a known course of proceeding although indeed yet I could never see an express Probate in any particular case elder than about H. 3. But the beginning or course of this Intrinsecal Jurisdiction in the Church is not for ought I have yet learned extant however Fairefaxe tells us that it was by an Act of Parliament 2 R. 3. tit Teslam 4. which perhaps he took from that of Linwood Tit. de Test C. stat verb. Ecclesia libert Haec libertas Ecclesiae quoad approbationem hujusmodi saith Linwood fundatur super consensu Regio suorum Procerum in talibus ab antiquo concesso Where he means by in talibus their power of committing of Administration of Intestates goods as it is plain by his quotation of that Constitution of Arch-Bishop Stafford tit de immunitate Eccles accidit novitate perversas guidam etiam That power was given as I guess by Parliament in King John's time but thereof more in due place And Linwood addeth Item fundatur super consuetudine in ea parte de scientia Regum Angliae diutius conservata Which is indeed that it is founded upon the Common Law or Customary Law of the Kingdom or that it hath like antiquity or original as other parts of the Common Law that is immemorial Custom For though it be exercised according to the Civil and Canon Law in the Spiritual Courts with some reference had to the Customs of England yet it is clear that the power which the Spiritual Courts have to exercise it is meerly by the Common Law although we find not when it came first to them no more than we find divers of our setled Courses and Maxims in the Common Law touching which yet we can without much difficulty prove that at such or such times they were not in practice as perhaps in the more ancient Ages this was not in these Courts But that it was originally belonging to the Crown that is to the Temporal Courts which are all and ever were derived from the Dignity Royal is affirmed also as in that cited in Hensloe's Case out of Jocelin's History of the Arch bishop of Canterbury in a Writ (a) Cod. MS. Hosp S. Leonardi in Biblioth Cottoniana 2 H. 5. that prohibiteth the Arch-bishop of York to call the Executors of the Tenants of S. Leonard's Hospital to prove their Wills before him because as the words are placita de cognitionibus scriptorum in Regno nostro Angl. ad Nos Coronam dignitatem nostram specialiter pertinent and also they had time out of mind used to prove them before the Masters and Brothers of the Hospital Here we see the Testaments reckoned as other Evidences Hensloes Case apud v. cl Ed Cook par 9. fo 37 38 48. the Tryal and Conusance whereof belongs only to the Temporal Courts and at this day by special Custom many Lords of Mannors have like Probate in their Courts Baron By the way That in France Probates are in the Spiritual Courts for that which Fairefaxe and others following him tells us that in all other Countries the Probate belongs to Lay-Judges he is deceived and deceives his Readers Indeed in the most places of other States it belongs to the Lay-Judges but in France (c) Choppin de Dom. Franciae lib. 2. pag. 230. Edit 1588. videsis testam Leolodi Abbatis Floriani Helgundi initio generally the Spiritual Judges both before Fairefaxe his time and since had this Jurisdiction of Probate and so have had without controversie ever since the disputations about it and other parts of Jurisdiction had with some Clergy-men by Coniers Attorney General to Philip Valois and Peter Dreux in behalf of the Duke of Britain at such time as the Clergy had there so extended their Jurisdiction Que les Fauxbourgs estoint trois fois plus grands que la uille as Pasquire speaks of them CHAP. VII Testimonies of King John and Henry the Third's time that may serve to prove the Extrinsecal Jurisdiction then in the Temporal Courts FOr the Extrinsecal Jurisdiction as it seems by Glanvill and other Testimonies that it was in the Kings Courts under H. 2. and so by all probability before so out of other Records of following time somewhat may perhaps be collected to prove that it continued long in them as out of the Patent of King John for Oliver of Rochford's Testament Sciatis sayes (a) Patent 3. Reg. Johan membr 6. the King Nos concessisse Testamentum Oliveri de Rupe forti sicut rationabiliter conditum est apud S. Florentiam veterem Rupem fortem scriptum ordinatum Quare volumus firmiter praecipimus quod nullus Executorum Testamenti ipsius impediat quin illud sicut rationabiliter conditum est faciant Then out of that of Peter de Roches Bishop of Winchester and Chief Justice of England touching the Will of Adam of Gurdun Rex (b) Rot. Claus Joh. Membr 22. Dom. P. Winton Episc Justic Angl. c. Mandamus Vobis quod teneri facias Testamentum Adae de Gurdun quod fecit de Rebus suis mobilibus omnibus aliis in Angl. secundum dispositionem testamenti excepta terra quam de domino nostro habuit septimo Augusti Teste meipso this expresly gives some legal execution of a Testament made of personal things unto the Chief Justice of England And in (c) Claus 5 H. 3. part 2. m. 7. 15. 5 H. 3. Robert of Lexinton having the possession of all the goods of Philip de Vletott the Testator a Writ goes out to him to pay William Earl of Salisbury a debt of Ninety Marks out of them and that the rest should be delivered to the Executors ad faciendum Testamentum and another Writ was sent that he should per visum Testimonium Execut. sell all Vletott's goods denarios quos inde fieri feceritis salvo faciatis reponi sub sigillo vestro sigillo Executor pradict donec aliud mandatum nostrum inde habueritis And in 7 Hen. 3. a Writ is directed to the Sheriff of Lincoln (d) Claus 7 H. 3. part 1. membran 16. idem id ipsum est quod habetur in commentario 9. v. c. Ed. Cooke f. 38.6 sumptum est reciting that whereas it appeared that Richard Fitz-dune dyed not Intestate Ideo tibi praecipimus quod omnia Catalla ipsius Richardi in Manum nostram capta in balliva tua sine dilatione habere facias Priori de
now use by the name of the Grand Charter of 9 H. 3. exemplified by the Kings Patent of 28 E. 1. But this of Intestates and two or three other Chapters for the Subjects Liberty are more in that of King John's than is found in the Exemplification of 28 E. 1. However Matthew Paris and Roger of Wendover when they speak of H. 3. granting it so refer their Readers to this of King John that they tell us that that of H. 3. was the self same in every particular and therefore omit the repetition of it And indeed although in the common Printed Magna Charta of H. 3. V. Manuscriptum nostr de Magn. Charta cap. 16. in fine and in the Roll also of 28 Ed. 1. in the Tower where the Exemplification is this Ordinance touching Intestates be wanting yet in very many of the ancientest Manuscripts of the old Statutes that of H. 3. hath the same words as we have here transcribed it from King John's and that in the same place of his Charter as that in King John's that is between the eighteenth Chapter Si quis tenens c. and the nineteenth Nullus Constabularius c. And it is to be understood that the greatest Prelates of the Clergy of that time as Canterbury London Winchester Pandulphus the Popes Nuncio the Master of the Temple and divers other Bishops were on the Kings part when that of King John was granted And it is probable enough that when they saw that a Charter of Liberties must of necessity be granted to the Baronage they so wrought also that they might insert this one for the advantage of their Episcopal Government And they had good colour to think and perswade that some such thing was fit for them in regard it was now clearly taken that some distribution was to be made pro anima intestati the care of souls being the chiefest part of their common pretences for increase of their power and greatness And hence I suppose it soon came to pass that the next of kin had the power of disposition committed by the Ordinaries and that in Letters or otherwise by vertue of that per visum Ecclesiae which was I think the textual ground of right of committing of Administration by the Clergy This of King John's being iterated in Henry the Thirds Charter however omitted in the Exemplification was it seems that provision spoken of in Cardinal Othobon's Legatins Proinde super bonis ab intestato decedentium (b) Cap. cum mortis incerta so are the words provisionem quae olim à Praelatis Regni Angliae cum approbatione Regis Baronum dicitur emanasse firmiter approbantes districtius inhibemus ne Prelati vel alii quicunque bona intestatorum quocunque modo recipiant vel occupent contra provisionem praemissam What provision is it more likely that this was than that of the Grand Charter both of King John and H. 3. and the words à Praelatis dicitur emanasse justifies what we have conjectured of the purpose of the Prelates when they saw they could not but yield with the King to an establishment of Laws by that Charter made indeed in a Parliament of that age The same I suppose that which is meant in the (c) Provinc Constitut tit de immunitate Ecclesiae C. accidit novitate Constitution of Arch-bishop Stafford where it is taken for granted that the Churches power of disposition of Intestates goods pro salute animarum in pios usus was a thing consensu Regio megnatum Regni Angltanquam pro jure Ecolesiasticáque libertate ab olim ordinatum c. Where Linwood modestly confesses that he could not find in what Kings time this Ordinance was made But Johannes de Athona upon that of Othobon though he rightly call that provision Provisio Parliamentalis yet most ignorantly and ridiculously (d) Jo. de Athona ad Legat. Othobonum c. cum mortis incerta tells us that the provision there understood is the Statute of Westminster 2. Cap. 21. cum post mortem which he makes also to have I know not what reference to the Statute of Glocester But this slipt from him either in a dream or through the utmost neglect of those infallible characters of truth that the denoting of times affords us for that Legatin of Othobon was made in London in (e) Praeter Annales obvios Linwood ad C. quia verb. Ottoboni tit de constitutionibus 53 H. 3. and at such time as that Provision was yet extant in the Magna Charta used by our Lawyers But the Statutes of Westminster the second and of Glocester were under E. 1. the one in the sixth the other in the thirteenth of him how then could Othobon think of it in his Legatin or could John de Athona have thought so if he had allowed the Title of his Gloss which supposes in the point that the Constitutions of Othobon were published in the year 1248. which had it been in 1268. had agreed with truth but doubtless the Numeral Letters of MCCLXVIII were transposed into MCCXLVIII and thence only that Error CHAP. IV. How that so granted by King John 's Charter in Parliament hath continued in practice AFter that Law of the seventeenth of K. John it seems the next of kin disposed of Intestates Goods by the testimony and direction of the Church for so per visum denotes as we see in per visum proborum legalium hominum in Writs of Summons and the like but I have not seen any practice of it testified in King John's time And under H. 3. however it were omitted in his Charter at the Exemplification the same visus Ecclesiae continued so sayes Bracton that then lived and was a Judge of that time Si (a) Bracton lib. 2. de acq rer dom cap. 26. sect 2. liber homo intestatus subito decesserit dominus suus nil intromittat de bonis defuncti nisi de hoc tantum quod ad ipsum pertineret sc quod habeat suum Heriott sed ad Ecclesiam amicos pertinebit executio bonorum Yet it seems also that notwithstanding the right of the Church thus ordained and the succession of next of kin so included in the Ordinance both the Lords in some places according to their former right still usurp some power over the disposition of Intestates Goods against the will of the Ordinaries and on the other side also the Ordinaries instead of giving direction for a true disposition of such Goods get possession of them and commit them often or at least too great a part of them to the use either of themselves or of the Church and so defrauded those to whom by the right of natural succession they pertained For that of the Lords Bracton his noting it as a thing denyed them compared with what we find among Articles granted in the Synod of London held under Boniface Arch-bishop of Canterbury in 42 H. 3. proves it
Legacies was out of the Canon Law And that especially from that Canon Si haeredes c. before cited for although the Decretals wherein it stands now authorized for a general Law were first published but in 24 H. 3. by Gregory the Ninth and that we see by infallible testimony already brought that Legacies before that time were recoverable in the Spiritual Court yet by likelihood that very Canon was inserted in all or some of those eight more ancient Compilations of the Canons authorized by some former Popes which is the more probable because we find it also in Burchard and so it might be long before sufficient ground of this Extrinsecal Jurisdiction in the Ordinary but I sought here for Authority more than I durst be bold in conjectures which I leave to every mans judgement PART II. OF THE Disposition or Administration OF Intestates Goods CHAP. I. In whom it was in the time of the Saxons IN the Saxons time it was in the Lord of him that dyed understand the Chief Lord in case the Intestate were a Tenant and dyed at home in peace But in case he were no Tenant or dyed in his Lords Army then it was it seems as other Inheritance under the Jurisdiction of that Temporal Court within whose Territory the goods were This may be proved out of the Laws of that time which ordain that upon the death of an Intestate whom they call cÆ¿iale aÆ¿e the Lord (a) Canuti leg cap. 68. is only to have the Heriotts due to him which are also appointed by (b) Ejusdem leg cap. 68. the Laws of the same time That by his the Lords advice or judgement his the Intestates goods be divided among his Wife and Children and the next of Kin according as to every one of them of right belongs that is according to the nearness of Kindred if no Children or Nephews from them be for it must I suppose be understood that the succession was such that the Children excluded all their Kindred and of their Kindred the next succeeded according to that in Tacitus (c) De moribus Germanorum of his Germans whose Customs were doubtless mixt with our English Saxons haeredes sayes he successoresque sint cuique liberi nullum Testamentum But it seems Christianity afterward brought in the free power of making Testaments amongst them Si liberi non sunt proximus gradus in possessione fratres patrui Avunculi But this is exprest only in case the Tenant dyed at home and in peace for if he dyed in his (d) Canut legibus cap. â—5 Lords Army both the Heriort was forgiven and the Inheritance both of Goods and Lands was to be divided as it ought which was it seems by the Jurisdiction of the Temporal Court within whose Territory the Death or Goods were for in that case it is not said that the Lords Judgement was to be used but that the Heirs should divide all or as the words in the Confessor's Law are habeant (e) Leg. Ed. Confell cap. de heretochiis haeredes ejus pecuniam terram ejus sine aliqua diminutione recte dividant interse where the right of the Heir both to Lands and Goods is expresly designed but the Judge that should give it them not mentioned Therefore it seems it remained as other parts of the Common Law under the Temporal Jurisdiction as by the (f) F. S. Instit de bonorum possessione Civil Law it is under the Pretors CHAP. II. In whom after the Normans until King John 's time UNtil King John's time it seems the Jurisdiction over Intestates Goods was as of other Inheritance also in the Temporal Courts yet no sufficient Testimony is found to prove it expresly only when the Common Laws of those times speak of Intestates they determine the succession by like division as those of the Saxon times (a) Adjiciuntur Ingulphe Crolandensi MS. in Bibliotheca Cottoniana In Laws attributed to William the First we read Si home morust sans devise si departent les Infants l'erite inter sei per ovell And afterwards in H. 1. (b) Apud Matth. Paris Laws si quis Baronum vel hominum meorum praventus vel Armis vel infirmitate pecuniam suam nec dederit nec dare disposuerit uxor sua sive liberi aut Parentes legitimi homines sui pro anima ejus eam dividant sicut eis melius visum fuerit Here is the first mention as I remember of any thing occurring in our Laws or Histories of the disposition of the Intestates Goods pro anima ejus which indeed might have been fitly subjected to the view at least of the Church But no mention as yet being of any Ecclesiastical Power that tends that way I rather think that heretofore no use or practice was of Administration committed direction given or medling with the Goods by the Ordinaries but all was by the Friends or Kindred juxta Consilium discretorum virorum as the words are in (c) Will. Novoburg hist l. 3. c. 22. the Statutes made for such as should dye in the Holy War with Richard the First Neither doth that of Glanvill which was written under H. 2. tell us of any thing of the Ordinaries Power in this case although it hath express mention of Testaments and the Churches Jurisdiction of them Indeed we there find that if no Executor be named then (d) Glanvill lib. 7. cap 6. possunt propinqui consanguinei Testatoris take upon them the Executorship and sue in the Kings Court against such as hinder the due payment of Legacies which also agrees well enough with that before cited out of the Laws of H. 1. Neither is there in Gualter Mapes his Apocalypsis being a bitter Satyr against the Abuses of the Spiritual Courts in Henry the Seconds time nor in John of Salisbury's Epistles that have many particulars of the exercised Jurisdiction of the Church any thing occurring that touches upon any Ecclesiastical Powers of this nature CHAP. III. In whom after the time of King John BUt in that Charter of Liberties both for the Church and Laity made to the Baronage of England in the seventeenth of King John (a) Reperiuntur seorsimsaepius exemplaria illius diplomatis penes Math. Paris Rogerum Wendover MS. Thom. Rudburne MS. entant sed in Archivis non extant in Reningmead an express Ordinance is That if any Free-man dyed intestate his Chattels were to be disposed of by the hands of his next of kin by the view of the Church that is direction and advice being thereto given by the Ordinary as I understand saving to all Creditors their debts the words of it were Si aliquis liber homo intestatus decesserit Catalla sua per manus propinquorum parentum amicorum suorum per visum Ecclesiae distribuantur salvis unicuique debitis quae defunctus eis debebat That Charter of King John is almost the same syllables with the common one that we