Tracts written by John Selden of the Inner-Temple, Esquire ; the first entituled, Jani Anglorvm facies altera, rendred into English, with large notes thereupon, by Redman Westcot, Gent. ; the second, England's epinomis ; the third, Of the original of ecclesiastical jurisdictions of testaments ; the fourth, Of the disposition or administration of intestates goods ; the three last never before extant.

CHAP. V.

Of the Intrinsecal Jurisdiction in the Saxons time.

THe Eldest Testament that I have seen made in England, is that of King Edgar's time, made by (a) one Birthric a Gentleman or Thane (it seems) of great worth, and his Wife Elswith; wherein they devise both Lands and Goods; and in the end of the Will sayes her husband. 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉; And I pray for Gods love my leefe Lord, that he doe not suffer that any man our Testament do break.

It may perhaps thence be collected, that the Protection or Execu∣tion of this Testament was within the Jurisdiction of the Lords Court, as also the Probate; and that especially, because divers Lords (b) of Mannors have to this day the Probate of Testaments by Cu∣stom continued, against that which is otherwise regularly setled in the Church. But the same Testament being for Lands as well as for Goods, it may be that this Clause had reference to the Lord in regard of the Land only, (to the Alienation of which, his Assent might be requisite) or to denote him for the Testators best friend, as one chosen Overseer of his Will; and indeed he desires all other good people to see his Will be not broken; which makes me only offer it, as what another mans fancy may work on: but I conceive not out of it enough to prove either way any thing touching the Ju∣risdiction of Testaments.

Nor in the Saxon times appears any thing that can sufficiently direct us to know, how it was exercised here, unless out of that ex∣ample of Siwerth of Durham's Testament, in the (c) Book of Ely, you may collect, that the Probate was supply'd in the life-time of the Testator by Inrolment, or leaving an Indented Copy of it with the Alderman or Sheriff of the County, in whose County-Court the most of proceedings of Temporal Justice, and of the Spiritual also (for the Bishop sate with him, as in his Consistory) were in the Saxon times: for so much perhaps may be conjectured out of it, as we faithfully here relate it. Siwerth in King Edgar's time, lying sick at Lindane in the Isle of Elie, makes his Testament, and sends for Brithnorth Abbot of Elie, and divers of the Monks, and others of the Gentry; and the Abbot writes the Testament in tribus Chirographis, coram (so are the words of the Book) cunctis fecit recitari, lectum{que} fecit incidi, unamque partem Chirographi retinuit Siferthus, Alteram au∣tem dedit Abbati, tertiam vero misit statim per praefatum Brithelmum (that was one of the Gentlemen of the Countrey then present) Ailwino Aldermano, qui tunc temporis degebat in Elie, & petiit ab illo ut suum Testamentum stare concederet, quomodo Abbas illud scripserat, & ordinaverat apud Lindane coram praedictorum Testimonio virorum.

Cum itaque Ailwinus Alderman hoc audisset, & Chirographum vidisset, remisit illico ad eum Wlnothum de Stowe cum Brithelmo, sciscitatusque est

ab eo quid aut quomodo vellet de Testamento suo: qui mox per eosd••m renuntiavit ei, sic suum Testamentum absque omni contradictione vel mu∣tatione se velle stare, sicut praefatus Abbas illud in Chirographo posuerat, quod ut Ailwinus Alderman audivit, totum concessit, ut staret sicut ipse Siverthus Testatus erat. But in deed, in it Lands lying in Durham were devised to the Abbey; and so, it was not only of personal Chattels.

The Saxon Laws are very silent of any thing touching Testaments; and we must remember, while we think of that example of Siwerth of Durham, that the Ecclesiastical and Temporal Courts of Common Justice, held as one by the Sheriff and Bishop, were not severed as now, into the Consistory, and County Court, until the Conqueror did it by a Law yet remaining and elsewhere published (d)

In what intercedes from this time, until about H. 2. I find not any Testimony that gives light to this purpose; as the Saxon Laws, so those of the Conquerour, and of H. 1. and H. 2. mention nothing that tasts of either kind of Jurisdiction of Testaments; only of a Charter of H. 1. extant in Matth. Paris, and in the Red Book of the Exchequer this occurrs, Si quis Baronum vel hominum meorum infir∣mabitur, sicut ipse dabit vel dare jusserit pecuniam suam, ita datam esse concedo. This may perhaps seem to denote, that the Kings Court de∣termined of Legacies, especially of the Kings Tenants.

But indeed it proves not so much. But the eldest passage that proves clear enough here, is that which makes the Intrinsecal Juris∣diction to have been in the Church, and the Extrinsecal in the Kings Court; I mean that which is found in the Treatise attributed to Randall of (e) Glanvill Chief Justice under H. 2. where he sayes, that if a Legacy be detained, the Executors or other friends of the Te∣stator, were to get the Kings Writ to the Sheriff, commanding quod justè & sine dilatione facias stare rationabilem divisum, (that is, the Be∣quest or Legacy). N. sicut rationabiliter monstrari poterit quod eam ••ecerit, & quod ipsam stare dibeat, &c. And it is plain by the words there preceding and subsequent, that it hath reference to moveable or personal possessions, not to Lands, &c. So that it seems clear by that in H. 2. his time, the Jurisdiction of personal Legacies was in Secular Courts. But if the Issue in Secular Courts upon that Writ came to be, whether the Testament were true or no, or well made, or whether the thing demanded were in facto bequeathed, Tum (sayes he) placitum illud in Curta Christianitatis audiri debet, & ter∣minari, quià placitum de Testamentis coram Judice Ecclesiastico fieri debet, & per illorum qui Testamento interfuerint testimonia secundum ju∣ris ordinem terminari: that is, as it must be understood, that upon issue of bequeathed or not bequeathed, of Testament made, or no Testament, the Tryal must have been otherwise than by the practice of the latter (f) Law, wherein the Testament is traversable, and the Traverse tryable in the Kings Court by Certificate to the Tempo∣ral Court from the Ecclesiastical, as at this day, of Institution, Bastardy, and Profession in Religion, and the like: and thence may it be well concluded, that at this time by the practised Law, the Probate or the Intrinsecal Jurisdiction was in the Church; for as the Institution,

Bastardy and Profession are to be certified, because within the Bishops Juris••iction. Some recorded Testimonies remain of the first and third, and the nature of the Marriage or Cohabitation (that directs in the second) is to be judged of only in the Spiritual Courts; so the Validity of the Testament, or the truth of this or that particular Legacy was to be certified from the Spiritual Court, because the Probate had there proceeded, and the Copy there remaining was most authentick; otherwise to what purpose should they have sent to the Spiritual Court in such a case?

But on the other side, as in the case of Institution, Profession and Bastardy, the consequence of them, which are objects of their Ex∣trinsecal Jurisdiction, as Descent, Exclusion from Inheritance, gaining it by a descent cast, or legal making a Church full, or the like are determinable only at the Common Law; so the consequence of a Testament, that is, the Recoveries of Legacies, and such like, as it seems by that Writ, were in the Temporal, not in the Spiritual Court. I know the authority of that Treatise is suspected, and some of the best and ancientest Copies having the name of E. de N. which I have heard from diligent searchers in this kind of Learning, affirmed to have been sometimes E. de Narborough, and not R. de Glanvilla, it hath been thought to be anothers Work, and also of later time. But, as on the one side, I dare not be confident, that it is Glanvills, so I make little question, that it is as ancient as his time, if not his Work. The Tests of the Precedents of Writs under his name, the language, especially the name of Justitia alwayes for that which we now from ancient time call Justitiarius; and Justitia was so used in (g) Writers under H. 2. and the Law delivered in it tasteth not of any later Age. And howsoever it comes to pass, the Regiam Majestatem of Scotland pub∣lished by Command of David the First under the time of our Hen. 1. hath for the most part the same syllables with this supposed Glan∣vill, and expresly (h) the very passages and the Writ that we have now here noted for Testaments.

That Extrinsecal Jurisdiction of those times in the Secular Courts, was perhaps denoted by those words in the Testament of Theobald Arch-Bishop of Canterbury under King Stephen, (i) Supremis (saith he) deficientium voluntatibus suum accommodant jura favorem, where he devises only personal things and uses. I think, Jura is rather to be taken for the Common Law, than the Spiritual; which is, in the most usual phrase of that time, designed by Canones.

In this time of Hen. 2. divers fierce Controversies fell between the Law and Spiritual Jurisdiction, and the particulars of them are largely related at the end of Quadrilogus, in Gervase of Dover, in Roger of Wendover, in John of Salisbury, and Matthew Paris, but in him most abruptly; yet not the least mention is in them touching any matter of this Jurisdiction; and in the main Cases of our Spiritual Courts depending under H. 2. and sent by appeal to Rome, which yet remain in the Epistles of John of Salisbury, there is not one that touches up∣on either of these Jurisdictions of Testaments in the Church; but in∣deed there is one that may seem somewhat to prove for that which

we note out of Glanvill, concerning the Intrinsecal Jurisdiction at that time in the Temporal Court: for in an Appeal sent to Pope Alexander the Third, the Case, as John (k) of Salisbury relates it, was, that one Richard de Anestia in foro secularium Judicum petitionem haereditatis ad bona avunculi obtinenda instituit, against Mabile de Franck∣villa, being Daughter to William of Sackvill, to whom the Plaintiff was Nephew by his Sister: and the point of the issue between the Daughter here and the Nephew, being upon the Bastardy of the Daughter, the Spiritual Court had the Tryal of it. If (bona) here be understood for Chattells, as in our Law it is, and so restrained, then was this petitio haereditatis, as a Suit for Sackvill's Goods, grounded also, as it seems, upon a Testament of his: for in the rela∣tion of the Case also, Richardus insistebat, sayes the Author, institu∣tioni Avunculi, petitionem haereditatis instituens; and on the other side, Mabile maxime Patris novissimae voluntati innitebatur: which shews, that here was a Testament in the Case, and a Suit for what was challenged by it in the Temporal Court: But haereditas and bona, it is likely, included here (as by the Civil Law) all possessions of the Ancestor, both real of Inheritance, and personal, that is, the uni∣versum jus defuncti, and not only our inheritance; although it doth also amongst some (l) Civilians denote no more, if at least they understand aright what they say, while they write, that consuetudo est in Anglia quâ primogenitus succedit in omnibus bonis: and in this Case, if 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.

Notes

• (a)

  Lamb. Peramb. Cant. p. 548.
• (b)

  Hensloes C••se 9. Rep. b.
• (c)

  In Bibliothec. Cottoniana.
• In lib. concessisset.
• (d)

  V. Spicilegia in Eadmerum.
• (e)

  Lib. 7. cap. 6. & 7.
• (f)

  29 Ed. 3.33. a. 44 Ed. 3.16. a. Perk. 493.22 H. 6.52.
• (g)

  Ita Jo. Salisbur∣gensis de Nugis Cu∣rial. lib. 5. cap. 15. & 16.
• (h)

  Regiam Majestar. lib. 2. cap. 38.
• (i)

  Jo. Sarisburg. Epist. 57.
• (k)

  Epist. 89.
• (l)

  Barth. ad tit. de summa Tr. l. 1. num. 42.