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. VIII.

Suits of Legacies personal in the Spiritual Court from the beginning of Henry the Third, of the beginning of that Course.

BUt however it may seem by those Testimonies, that the Tempo∣ral Courts had some Extrinsecal Jurisdiction of Testaments in the time of King John and Hen. 3. it is clear, that in the beginning of H. 3. Suits for Legacies personal were in the Spiritual Courts, and that it seems from Custome setled in practice of the former times that were then newly past. And perhaps it might be in the more ancient times fori mixti, and as well exercised in the one, as in the other Court; as we have elsewhere shewed of the more ancient Ju∣risdiction of Tithes; or it may be, that those Writs in the former Chapter, and the like, were but in case of Tenants being Testators, upon whose deaths all their goods were to be seised by the Sheriff, or other such Officer, and the debt (if any were) paid to the King, Et residuum relinquebatur Executoribus testamenti defuncti, as the words are, both of the Charters of King John and H. 3. (a) 1.1 and per∣haps by that Chapter of the Charter those Writs may be interpreted, and faciatis teneri testamentum may be but only an amoving of the Kings hands from the goods, that so the Executor might perform the Te∣stament; for that the Spiritual Court did from the beginning of H. 3. exercise a Jurisdiction for recovery of Legacies, is infallibly proved by (b) 1.2 Cases of 2, 4, 6, & 8 Hen. 3. and the Attachments upon Prohibitions extant in Records of that time, are, quare secutus est placitum in Curia (c) 1.3 Christianitatis de Catallis quae non sunt de Te∣stamento vel matrimonio: and many such more are both in the Rolls and in Matth. Paris. It appears also in 2 H. 3. in the Case of Symon Fitz-Simon, that even that Suit for deviseable Land being devised, was thought to be good in the Spiritual Court ex Causa testamentaria, as if Laicum feodum versum esset in Catallum, until the devisee had recovered it: and after the recovery, iterum incipiebat esse Laicum feodum—as (d) 1.4 Bracton sayes, where his Printed Copy is ex∣ceedingly corrupted. But it was clear Law in the time of this Bra∣cton, who was a Judge in the Common Pleas in the latter part of H. 3. that locum (e) 1.5 non habet probatio in Causa testamentaria si Catalla legen∣tur & inde agatur in foro Ecclesiastico: and he reckons that of Testaments inter spiritualia, & spiritualibus annexa, which agrees exactly in the known and practised Consultations in the (f) 1.6 Register, placita de Catallis & debitis, quae sunt de Testamento & Matrimonio, ad forum Ec∣clesiae specialiter dignoscimus pertinere, &c. And although in case of Legacy, as in case of Tithes, the Jurisdiction that gave the recovery of them, was sometimes in the one, sometimes in the other Court, before it was restrained to the Spiritual only, yet it seems by those Cases of Henry the Third's time, which are Testimonies beyond exce∣ptions, that the Spiritual Jurisdiction over Legacies, was long before in practice; otherwise I guess that exception de Testamento, & de Matrimonio, had not been so familiar in the Prohibitions of that

Age. And notwithstanding those Cases out of the Records of King John's and Henry the Third his time, the Temporal Court not only prohibited not the Spiritual Court, espec••ally in H••nry the Third's time, but also had not any Conusance of Suits for personal Legacies; for neither have I ever met with any Suit in that kind in the Plea Rolls of H. 3. or King John, or Richard 1. (but very few are extant of the time of the two last) neither doth Bracton admit any such thing. And the Author of Fleta in the time of E. 1. tells us ex∣presly, (g) 1.7 de Causa Testamentaria sicut nec de causa Matrimoniali Curia Regis se non intromittet. But the beginning of that practice of the Extrinsecal Jurisdiction in the Spiritual Court, is even as difficult to find, as that other of Probates. Linwood tells us, that (h) 1.8 libertas quoad secundum scilicet, puniendum impedientes quo minus testamenta & ultimae voluntates defunctorum procedant, ortum habet à privilegiis etiam in ea parte concessis, & à consuetudine similiter de scientia Regum Angl. diutius observata: and further, potuit (saith he) habere ortum out of those (i) 1.9 Laws in the Code that made the Bishop a Protector of Le∣gacies in pios usus. It might be also in regard of the purpose of those Laws in themselves; and it were no great wonder, that the Ecclesi∣astical Court might have gained Jurisdiction over all personal Lega∣cies under colour of such as were given in pios usus: But perhaps it will not be admitted for probability enough, that any part of the Code being of the Imperial or Civil Law, was ever so received here in England, as that it could induce any alteration touching the Ju∣risdiction of the Crown, that is, touching this Extrinsecal Jurisdiction which (as is shewed) did belong to the Temporal Courts: but who∣soever will not admit of any such conjecture, must yet remember, that presently from King Stephen's time, when the Civil Law was new born into the light, it having lain forgotten by the space of Six Hun∣dred years before in the Western Empire, the Code and other parts of that Law were familiarly read by our English Lawyers; and I think as well by our Common as Canon Lawyers: to omit that Case of Mabile of Franchiville, wherein, it seems, a special regard was had to the Civil (k) 1.10 Law, that permits not a meer Bastard and Succes∣sion ex Testamento against a lawful Heir of Blood; for otherwise how could Richard the Uncle's Institution, as it seems by a former Will have made colour of right for him, against the latter Will which Mabile pretended, unless he relyed upon her being a Bastard. But I should think it probable enough, that the Original of this Jurisdi∣ction for Legacies, was out of the Canon Law. And that especially from that Canon Si haeredes, &c. before cited; for although the Decre∣tals, 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 Com∣pilations 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.

Notes

• (a) 1.1

  Cap. 15. magn. Char. quam etiam do∣navit Johannes Rex, uti videre est apud Matth. Paris.
• (b) 1.2

  2 H. 3. tit. pro∣hib. 13.

  4 H. 3. ibidem. 28.

  6 H. 3. ibid. 17.

  8 H. 3. ibid. 19.
• (c) 1.3

  Mich. 16 & 17 H. 3. Rot. 15. &c. & 18 H. 3. coram W. de Raleigh, &c. Rot. 36. in arce Londi∣nensi.
• (d) 1.4

  Lib. 5. Tract. de exceptionibus, cap. 12. pag. 4091. b.
• (e) 1.5

  Idem fo. 4076.
• (f) 1.6

  Register. Orig. fo. 48. (b) &c.
• (g) 1.7

  Fleta lib. 2. cap. 57. Sect. Execu∣tor.
• (h) 1.8

  Ad tit. de te∣stam. c. Statut. verb. Ecclesiast. libertat.
• (i) 1.9

  De Episc. & Cler. & nulli 28. & siquis ad designan∣dum, 49, &c.
• (k) 1.10

  Cod. de lib. Natur. l. 2. Matr. & Author. 89, &c.