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.

PART I. OF THE ORIGINAL OF Ecclesiastical Jurisdiction OF TESTAMENTS. (Book 1)

CHAP. I.

The Intrinsecal Jurisdiction not given to the Church by the Civil Law.

THE Jurisdiction of Testaments being either Intrin∣secal or Extrinsecal, (that is) either touching Pro∣bate, or Recoveries of Legacies: First for the Intrin∣secal, it is clear that it came not to the Bishop by Imitation; or otherwise, from the Imperial Civil Law: for by the elder part of that Law, regularly the Probate or Aperture of Wills was before the (a) 1.1 Praetor. And afterward the obsignation, insinuation and Probate of them in Rome, was before the Magister Census, or (b) 1.2 apud officium Censuale, as it were before the Barons of our Exchequer; and that continued into later time. And the same Officer by the name of (c) 1.3 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉, or generalis in Constantinople, had the same authority: But also afterwards as well the Questor's Seal, as that of the generalis became to be used at the obsignation, and his authority also in the Probate or Aperture.

And the Emperour Leo (d) 1.4 about the year 890. transferred all that herein belonged to the Generalis into the Questor's place; yet so, that some other Civil Magistrates had the like authority: and what was done before these in Rome and Constantinople, was in other Cities be∣fore their Chief Governours, as Defensores or Praefides: neither was the Church permitted to have to do with the Insinuation of Te∣staments, but expresly forbidden by a rescript (e) 1.5 of the Emperour Justin: nor is any thing that gives it either among the Novells of the Greek Empire, or in the Lombarda, or Capitulares, which have (f) 1.6 been reputed as parts also of the Imperial Law.

CHAP. II.

Nor by the Canon Law.

NEither in any General Council, or other part of the received Canon Law, doth any Testimony occurr, that gives the Church this Intrinsecal Jurisdiction. But in the fourth Council of (a) 1.7 Car∣thage holden in the year 398. it was ordained, Vt Episcopus tuitionem testamentorum non suscipiat. And this being then established by two hun∣dred and fourteen Bishops, was afterwards made a part of (b) 1.8 the Decrees, or Canon Law, collected by Gratian, and published and au∣thorized by Pope Eugenius the Third about 1150. and the Gloss upon that Canon interprets tuitio for Aperture or Probate. So also Pope (c) 1.9 Innocent the Fourth understands it: publicatio (saith he) fieri non debet apud Episcopum; and he vouches that Law, (d) 1.10 Consulta ducalia tit. de Te∣stament. to prove it. Speculator, Hostiensis and others of the same time, and generally the rest that follow them, make the Civil Law only the square of the Jurisdiction of the Probates; and so it is truly affirmed in our Books, that the Probate belongs not to the Church (e) 1.11 by the Spiritual Law; neither is any such thing given by any later (f) 1.12 Bull, or Decretal from the Bishop of Rome.

CHAP. III.

The Extrinsecal Jurisdiction by the Civil Law, in whom.

FOr the Extrinsecal Jurisdiction that gave Recoveries of Legacies, by the Imperial Civil Law, where the Legacies were in pios usus, the (a) 1.13 Bishop of the Diocess sometimes by himself, some∣times with the Civil Magistrate, provided for the execution of the Testators meaning: otherwise the Jurisdiction of Legacies, and what else falls under Testamentary disposition, was and (b) 1.14 is the Magi∣strates only.

CHAP. IV.

In whom by the Canon Law.

BUt by the Canon Law, the general care of execution of Testa∣ments is committed to the Bishop: yet I find not any Canon to that purpose received into the Body of that Law, now in authority, before the time of the Decretals; which have out of some Council of Mentz these words, viz. (a) 1.15 Si haeredes jussa Testatoris non impleverint, ab Episcopo loci illius omnis Res quae eis relicta est Canonice interdicatur, cum fructibus & caeteris emolumentis, ut vota defuncti impleantur. Out of what Coun∣cil of Mentz this is taken, I have not yet learned; (b) 1.16 but in the same syllables it occurrs in Burchard, that lived about six hundred years since, with the Marginal Note of ex Concilio Moguntino. What other Texts are, touching the power of the Canons over performance of Testaments, have reference to that course ordained by the Civil Law, where any thing was given in pios usus, not to a general Ju∣risdiction; for so is the Canon Nos quidem extr. tit. de testam. Nei∣ther is that Canon Vltima Voluntas in C. 13. q. 2. taken out of S. Gregory, otherwise to be understood, if you interpret it as you ought by those (c) 1.17 places of Gregory whence it is taken: but the Canonists generally upon that Canon Si haeredes, take it, that executio testamentorum ad Episcopos spectat. And so those old ones Pope Inno∣cent the Fourth, Bernard, and others of the rest deliver; and the (d) 1.18 latter follow them, yet they commonly restrain it (and that in practice in other States) to Legacies given in pios usus. And in the Council of Trent, where twice the Bishops power over Testaments is provided for, (e) 1.19 nothing is spoken of but Commutations of Lega∣cies, and of such as are given in pios usus: yet from Ancient time both the Intrinsecal and Extrinsecal Jurisdiction of Testaments made of personal Chattels in England, hath been and is in the Church, ex∣cept in places where special Custom excludes it: the original whereof being not sufficiently found in either of these Laws (the Civil and Canon) divers parts of which according to the various admission of several Estates have been much dispersed through Christendome, and some remain now exercised by imitation among us; It rests, that disquisition be made for it in the Monuments of the Kingdom, that according as they together with the Canons afford light, some con∣jecture may be had touching the Antiquity and ground of it.

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) 1.20 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) 1.21 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) 1.22 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,* 1.23 & 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) 1.24

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) 1.25 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) 1.26 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) 1.27 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) 1.28 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) 1.29 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) 1.30 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) 1.31 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.

CHAP. VI.

Whence Linwood thinks the Jurisdiction Intrinsecal came to the Church.

BY what is before delivered, it appears, that the Intrinsecal Ju∣risdiction or Probate was in the Church; and that by express te∣stimony, 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 Ju∣risdiction in the Church, is not for ought I have yet learned, extant: however Fairefaxe tells us, that it was by an Act of Parliament,* 1.32 which perhaps he took from that of Linwood; Haec libertas (Ecclesiae) quoad approbationem hujusmodi (saith Linwood) fundatur super consensu Regio,* 1.33 & suorum Procerum (in talibus) ab antiquo, concesso. Where he means by in talibus, their power of committing of Administration of Inte∣states goods, as it is plain by his quotation of that Constitution of Arch-Bishop Stafford tit. de immunitate Eccles. accidit. novitate perversas quidam etiam: That power was given, as I guess, by Parliament in King John's time: but thereof more in due place. And Linwood ad∣deth, 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 re∣ference 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 pra∣ctice; 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) 1.34 2 H. 5. that prohibiteth the Arch-bishop of York to call the Ex∣ecutors of the Tenants of S. Leonard's Hospital to prove their Wills before him; because as the words are, placita de cognitionibus scri∣ptorum in Regno nostro Angl. ad Nos, Co••onam & dignitatem nostram spe∣cialiter 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,* 1.35 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.

* 1.36By the way, 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) 1.37 generally the Spiritual Judges, both before Fairefaxe his time and since, had this Jurisdiction of Probate, and so have had with∣out controversie ever since the disputations about it and other parts of Jurisdiction had with some Clergy-men, by Coniers Attorney Ge∣neral 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 Roch∣ford's Testament, Sciatis (sayes (a) 1.38 the King) Nos concessisse Testa∣mentum 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) 1.39 Dom. P. Winton. Episc. Justic. Angl. &c. Mandamus Vobis quod teneri facias Te∣stamentum 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) 1.40 5 H. 3. Robert of Lexin∣ton having the possession of all the goods of Philip de Vletott the Te∣stator, 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 deli∣vered 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. praedict. donec aliud mandatum no∣strum inde habueritis. And in 7 Hen. 3. a Writ is directed to the Sheriff of Lincoln, (d) 1.41 reciting, that whereas it appeared, that Ri∣chard Fitz-dune dyed not Intestate, Ideo tibi praecipimus quod omnia Catalla ipsius Richardi in Manum nostram capta in balliva tua sine di∣latione habere facias Priori de Noketon, and other Executors of his Testament ad faciendum inde rationabile testamentum: and other like Writs occurr in the Rolls of King John and H. 3.

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) 1.42 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) 1.43 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) 1.44 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) 1.45 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) 1.46 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) 1.47 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) 1.48 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) 1.49 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) 1.50 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) 1.51 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

  ff. Test. quem∣admodum aperiant. per tot. Et vide etiam Auth. 74. c. 2. sit igitur Licentia.
• (b) 1.2

  De Episc. l. 41. & tit. de testam. l. 10. & 23. & Caput Theo∣dos. li. 4. tit. 4. l. 4. Ubi visendus inter∣pres vetus.
• (c) 1.3

  Authent. 44. & ibid. Cujacius, & vi∣desis Gloss. Graeco∣barb. ••eursii in 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉.
• (d) 1.4

  Novel 44. for∣mulas vet. Testam. aperiendorum, vide∣sis I. Paul Regest. sen∣rent. l. 4. tit. 6. & Marculph. Formul. l. 2. c. 37. & 38.
• (e) 1.5

  C. de Episc. & c••er. l. 41. repetita.
• (f) 1.6

  Hostiens. in pro∣oem. sum. & vetusti∣o••es canonist. passim.
• (a) 1.7

  Cap. 18.
• (b) 1.8

  Dist. de secular. negotiis, cap. 5.
• (c) 1.9

  Ad c. nos qui∣dem extra tit. de testament.
• (d) 1.10

  Tit. de Instrum. edit. S. ostens. 34. vid. D. D. ad c. nos quidem, &c. si haere∣des extra tit. de test. & Linwood de test. c. item S. infin. & cap. stat. S. approb.
• (e) 1.11

  2 R. 3. Test. 4.14 H. 7. fo. 12. b.
• (f) 1.12

  Quod discimus ex Bullarii summa quam edidit S. Gua∣ranta.
• (a) 1.13

  C. de Episc. & Cler. l. 28. Nulli, & l. 49. si quis ad de∣clinand. authentic. 135. c. 10. & vid. c. 11.
• (b) 1.14

  ff. de Petit. hae∣red. & tit. de legat.
• (a) 1.15

  Extr. de test. c. 6.
• (b) 1.16

  Lib. 15. c. 34.
• (c) 1.17

  Videsis Greg. lib. 3. Epist. 9. & lib. 9. Epist. 20.
• (d) 1.18

  Vid. Gonzal. Zuarez Prax. Eccles. Lam. 2. Praelud. 2. Sect. 44. & Zerula prop. Episcop. verb. leg. ad quaest. 9.
• (e) 1.19

  Sess. 12. de re∣form. cap. 6. & Sess. ult. de reformat. c. 4.
• (a) 1.20

  Lamb. Peramb. Cant. p. 548.
• (b) 1.21

  Hensloes C••se 9. Rep. b.
• (c) 1.22

  In Bibliothec. Cottoniana.
• * 1.23

  In lib. concessisset.
• (d) 1.24

  V. Spicilegia in Eadmerum.
• (e) 1.25

  Lib. 7. cap. 6. & 7.
• (f) 1.26

  29 Ed. 3.33. a. 44 Ed. 3.16. a. Perk. 493.22 H. 6.52.
• (g) 1.27

  Ita Jo. Salisbur∣gensis de Nugis Cu∣rial. lib. 5. cap. 15. & 16.
• (h) 1.28

  Regiam Majestar. lib. 2. cap. 38.
• (i) 1.29

  Jo. Sarisburg. Epist. 57.
• (k) 1.30

  Epist. 89.
• (l) 1.31

  Barth. ad tit. de summa Tr. l. 1. num. 42.
• * 1.32

  2 R. 3. tit. Testam. 4.
• * 1.33

  Tit. de Test. C. stat. verb. Ecclesiae libert.
• (a) 1.34

  Cod. MS. Hosp. S. Leonardi in Bib∣lioth. Cottoniam.
• * 1.35

  Hensloes Case apud v. cl. Ed. Cook par. 9. fo. 37, 38, 48.
• * 1.36

  That in France Pro∣bates are in the Spiritual Courts.
• (c) 1.37

  Choppin. de Dom. Franciae lib. 2. pag. 230. Edit. 1588. & videsis restam. Le∣olodi Abbatis Flori∣ani Helgundi initio.
• (a) 1.38

  Patent. 3. Reg. Johan. membr. 6.
• (b) 1.39

  Rot. Claus. 16 Joh. Membr. 22.
• (c) 1.40

  Claus. 5 H. 3. part. 2. m. 7. & 15.
• (d) 1.41

  Claus. 7 H. 3. part. ••. membran. 16. idem. id ipsum est quod habetur in commentario 9. v. c. Ed. Cooke, f. 38.6. sumptum est.
• (a) 1.42

  Cap. 15. magn. Char. quam etiam do∣navit Johannes Rex, uti videre est apud Matth. Paris.
• (b) 1.43

  2 H. 3. tit. pro∣hib. 13.

  4 H. 3. ibidem. 28.

  6 H. 3. ibid. 17.

  8 H. 3. ibid. 19.
• (c) 1.44

  Mich. 16 & 17 H. 3. Rot. 15. &c. & 18 H. 3. coram W. de Raleigh, &c. Rot. 36. in arce Londi∣nensi.
• (d) 1.45

  Lib. 5. Tract. de exceptionibus, cap. 12. pag. 4091. b.
• (e) 1.46

  Idem fo. 4076.
• (f) 1.47

  Register. Orig. fo. 48. (b) &c.
• (g) 1.48

  Fleta lib. 2. cap. 57. Sect. Execu∣tor.
• (h) 1.49

  Ad tit. de te∣stam. c. Statut. verb. Ecclesiast. libertat.
• (i) 1.50

  De Episc. & Cler. & nulli 28. & siquis ad designan∣dum, 49, &c.
• (k) 1.51

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