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 II. OF THE Disposition or Administration OF Intestates Goods. (Book 2)

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 Tempo∣ral 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 cwiale awe, the Lord (a) 1.1 is only to have the Heriotts due to him, which are al∣so appointed by (b) 1.2 the Laws of the same time, That by his (the Lords) advice or judgement his (the Intestates) goods be di∣vided 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 Kin∣dred

the next succeeded, according to that in Tacitus (c) 1.3 of his Germans, whose Customs were doubtless mixt with our English Saxons, haeredes, sayes he, successoresque sint cuique liberi, & nullum Te∣stamentum. But it seems, Christianity afterward brought in the free power of making Testaments amongst them, Si liberi non sunt, pro∣ximus 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) 1.4 Lords Army, both the Heriott was forgiven, and the Inheritance both of Goods and Lands was to be divided as it ought, which was, it seems, by the Ju∣risdiction of the Temporal Court within whose Territory the Death or Goods were; for in that case, it is not said, that the Lords Judge∣ment was to be used, but that the Heirs should divide all; or, as the words in the Confessor's Law are, habeant (e) 1.5 h••redes 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) 1.6 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. In Laws attributed to William the First we read,a 1.7 Si home morust sans devise, si departent les Infants l'erite inter sei per ovell. And after∣wards in H. 1. (b) 1.8 Laws, si quis Baronum vel hominum meorum prae∣ventus 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 med∣ling with the Goods by the Ordinaries; but all was by the Friends or Kindred juxta Consilium discretorum virorum, as the words are in (c) 1.9 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) 1.10 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 (be∣ing 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 oc∣curring, 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) 1.11 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 de∣cesserit, Catalla sua per manus propinquorum, parentum, & amicorum suo∣rum, per visum Ecclesiae distribuantur; salvis unicuique debitis, quae defun∣ctùs eis debebat. That Charter of King John is almost the same sylla∣bles with the common one that we 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 Sub∣jects 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 Rea∣ders 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. and in the Roll also of 28 Ed. 1. in the Tower, where the Exemplification is,* 1.12 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 teneus, &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 Nuncto, 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 di∣stribution 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 Or∣dinaries, and that in Letters or otherwise by vertue of that per visum Ecclesiae, which was, I think, the textual ground of right of com∣mitting of Administration by the Clergy: This of King John's being iterated in Henry the Thirds Charter (however omitted in the Ex∣emplification) was it seems that provision spoken of in Cardinal Othobon's Legatins, Proinde super bonis ab intestato decedentium,(b) 1.13 so

are the words, provisionem quae olim à Praelatis Regni Angliae cum ap∣probatione Regis & Baronum dicitur emanasse, firmiter approbantes, di∣strictius inhibemus ne Prelati vel alii quicunque bona intestatorum quo∣cunque 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) 1.14Constituti∣on of Arch-bishop Stafford, where it is taken for granted, that the Churches power of disposition of Intestates goods pro salute anima∣rum & in pios usus, was a thing consensu Regio & magnatum Regni Angl. tanquam pro jure Ecclesiasticá{que} 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 Otho∣bon, though he rightly call that provision, Provisio Parliamentalis: yet most ignorantly and ridiculously (d) 1.15 tells us, that the provision there understood, is the Statute of Westminster, 2. Cap. 21. cum post mor∣tem, 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) 1.16 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 publish∣ed 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 pro∣borum & 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 Exemplifi∣cation, the same visus Ecclesiae continued; so sayes Bracton that then lived, and was a Judge of that time, Si (a) 1.17 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 al∣so, 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, Idem quod mortuo (so is the (b) 1.18 Article) laico sine Testamento non capiantur bona ipsius in manus dominorum. Sed inde solvantur de∣bita ipsius, & residua in usus filiorum suorum, & proximorum indigenti∣um pro salute animae defuncti in pios usus per Ordinarios committantur, nisi quatenus fuerit domino suo obligatus. Here we see by the way plainly that the distribution in pios usus, was the devising them among the next of kin, according to their nearness and want; not an im∣ploying them to other uses, at the Ordinaries arbitrary disposition. But also that the Ordinary did in this Age sometimes usurp the Goods of Intestates against the next of kin, is enough proved out of that Legatine Constitution of Othobon, cum mortis incerta, &c. where it was ordained as you see before; so in the words of it, that they should not dispose of them otherwise than according as that Grant was in the Grand Charter; that is, to the benefit of the next of blood: But the Ordinaries had about this time, against the intent of that Charter, so abused the right of succession, that it was related (c) 1.19 for a constant truth, that the Custome in Britania was, that tertiae pars bo∣norum decedentium ab intestato in opus Ecclesiae & pauperum dispensanda, &c. as Innocent the Fourth his words are, who lived and wrote in the time of H. 3. What other ground than the Ordinaries ill dealing with the next of blood was for that tertia pars I conceive not; unless the Pope

had some such other Testimony touching it, as we find in an old Manu∣script Volume titled (d) 1.20 Statuta Synodorum written in an hand of near seven hundred years since, being a Collection out of the Fathers and old Councils, made as it seems by some Britain or Irish-man, as we have elsewhere conjectured. In that Statuta Synodorum occurrs Orig. in lib. de haeredibus: pater moriens det tertiam partem filiis, & tertiam Cae∣sari, & tertiam Ecclesiae; si non habuerit Ecclesiam, det pauperibus, & si non habuerit Caesarem nec Ecclesiam, dividat inter filios & pauperes. But what Author this is cited out of, I am equally ignorant, as I know not at all who was the Author of the whole Collection, or whence he had many other of his Authorities. And other things that Volume hath out of some old Synod of Ireland, which makes to our present purpose, if the Canons of that Synod had been at all binding in this State. And it was no such wonder, that some such practice might be under H. 3. for since also in the time of E. 3. the Church so usurped in their Jurisdiction of Probates, that they made the Executors wait on their Officials at uncertain and remote places, and then also put them, at times, to the Ransom of the fourth or fifth part of the Testa∣tors Goods, before they would give them Probate; which was com∣plained (e) 1.21 of in Parliament amongst the Grievances of the Com∣mons.

CHAP. V.

Of that of bona Intestatorum in manus Domini Regis capi solebant.

FOr that of bona Intestatorum in manus Domini Regis capi solebant, for which is cited (a) 1.22 the Close Roll of 7 H. 3. Rot. 16. it is also most true, if rightly apprehended. All that appears in the Record is, that the King wrote to the Sheriff of Lincoln, that constat nobis per in∣quisitionem nobis missam sub sigillo Stephani de Segrave, & aliorum probo∣rum & legalium hominum, quod Richardus filius Dunae non obiit intesta∣tus, and therefore he commands, that the Sheriff should deliver all the Goods of the said Fitz-dune in manus nostras capta, to the Prior of Loketon, and others his Executors, ad faciendum Testamentum: neither are there any words that tell us of any capi solebant, or that these were taken in regard of dying intestate only. Indeed it appears not suffi∣ciently in the Writ, why they were taken; but it is most probable, that the seisure was for some debt due to the Crown from the Inte∣state, which afterward not appearing, or being satisfied, or it appear∣ing that the Executors by the taking upon them the execution of the Testament, would subject themselves to the payment of it, it was fit enough to amove the Kings hands, and deliver all over to the Execu∣tors: He that well considers the Statute of Magna Charta cap. 18. Si quis tenens, and compares it with that of Bracton, where he tells us, that the Law was clear, that if any man dyed indebted to the King, the Sheriff might (b) 1.23 imbreviare, & attachiare cattalla defuncti, will soon see the probability of this, howsoever the words of the Statute are only of the Kings Tenants: And it concludes also, as if it were only in case of the death of a Testator in regard of relinquatur executoribus ad fa∣ciendum testamentum defuncti; but plainly, that ad faciendum, &c. hath equal reference to the Intestates as to Testators: for no name of an Ad∣ministrator being then usually known, all were called Executors that medled with the Intestates Goods; and those Executors were executores qui faciebant Testamentum, that is, which instead of the Intestate (c) 1.24 did take such order after his death with his Goods, as they thought he would have done if he had made a Testament; which may be con∣ceived also out of the use remembred in that time, wherein sick men being unable, neither having time to express their meaning, chose out some friends that might be super (d) 1.25 hoc expressores & exe∣cutores; which friends appointing of Legacies (as if the Intestate had given them) and making disposition of Intestates Goods, were as Te∣staments of those Intestates; and they did truly as Executors facere Testamentum defuncti, in which sense it might be spoken of any Execu∣tors or Administrators that intermedled in those times. And many Writs occurr in the Close Roll of King John and H. 3. that have ex∣presly in them the amoving of the Kings hands from the Goods of the dead, when the seisure had been only for the debts to the Crown, ac∣cording to the Statute of Magna Charta (which in substance is the Law at this day) and Bracton, by reason whereof, I see not cause enough,

why we should understand that of 7 H. 3. to prove any such thing, as a Custom of the Kings disposing or seising of the Intestates Goods, especially in regard that in the passages of the Law, Lawyers and Records of that time, no mention is of any thing that affirms it to be a Custom, or touches it as a common use.

But admit that in Fitz-dunes Case it had been so, that the taking of the Goods into the Kings hand, had been because of his dying Intestate only. It may therefore be accounted rather as a particular of the irre∣gular practice of that time, than any example to prove a Custom; and whosoever is but acquainted with the course of the Records of King John and Henry the Third his time, must soon see Writs enough that agree not so much as with any setled course of Law, but taste ra∣ther of some sudden or arbitrary course of granting them. Indeed some two years before that of Fitz-dune, there is an example in Bedford∣shire, that might seem more fully to prove what is collected out of the other: the Writ is thus, Rex (e) 1.26 Vicecom. Bedford salutem. Prae∣cipimus tibi quod blada & catalla quae fuerunt Roberti de Insula & Rossiae uxoris ejus defunct. in Wahall & Brokeberge arestari facias & salvo cu∣stodiri, donec discussum fuerit in curia nostra ad quem catalla illa pertinent, & aliud inde praecipimus; but this is often enough seconded with other examples that have for the most part a mention of the Defuncts debts to the Crown, that it cannot otherwise be understood, but either as founded upon that Law of seising upon the Goods for debt to the Crown by Prerogative, or as an example (amongst many of other kinds) that discovers a more arbitrary course sometimes in proceed∣ing, than later time hath permitted. And according to one of those wayes (but the first that is upon the Statute of the Grand Charter is the fittest and most probable) must that also be interpreted, where (f) 1.27 H. 3. sends a Writ to the Sheriff of Rutland to command him, that notwithstanding that Robert de Weston a Parishioner of Weston were drowned, and dyed intestate, he should yet facere Willielmo de S. Lando (that is, to the Parson of the Parish) habere nomine Ecclesiae suae id quod ad eum pertinet, habendum de catallis quae fuerunt praedicti Roberti, secundum consuetudines partium illarum: that was for the mortuarie, which pro∣perly and under that name then was determinable in the Spiritual Court.

But surely we must conclude, that if there were any such practice by the Officers of the Crown in the time of Hen. 3. to seise Intestates goods generally, it was not so much the Law of the time; for if so, the Records could not be but as full of examples of it, as the time was of the death of Intestates, which questionless were very ma∣ny; but some such temporary usurpation, as in 31 H. 3. Pope Inno∣cent the Fourth here had for a while executed by his Ministers the Fran∣ciscans and Dominicans, in not only getting into his own hands, but also to his own use, all the Goods of the Clergy-men that dyed Intestate through England, which as Matthew Paris that then lived, relates it,(g) 1.28 cum audisset dominus Rex, detestans Romanae Curiae augmentosam & mul∣tiplicem avaritiam, hoc fieri prohibuit, comperiens illud ad damnum Regni & suum redundare praejudicium. Afterward in the time of Edw. 1. it appears by the Statute of Westm. 2. cap. 21. cum post mortem, &c. that

the Goods of Intestates did come ad Ordinarios disponend••; which agrees with that of Bracton before cited, and iterated in the same syllables in Fleta (h) 1.29 which was written under E. 1. And the disposi••ion of Intestates Goods was enquired after in those dayes (i) 1.30 an ongst Ar∣ticles of Ecclesiastical Jurisdiction. And afterwards by the Statute of 31 E. 3. the Ordinary was compelled to commit the administration of Intestates Goods to the next of kin: after which Statute the name of Administrator was common as their Office; and by that name such to whom the Ordinary committed were sued, although before that time they were suable by the name of Executors,* 1.31 and perhaps also by the name of Administrators: (k) 1.32 but that name is scarce found (as I think not at all) given a Defendant to an Action brought before se∣ven years after the Statute of 31 E. 3. And in the Parliament Rolls of 17 Ed. 3. the Administrators are designed only by the Ceux que∣sont per l' Evesque ordines en lieu des Executors, where a Petition is of∣fered (l) 1.33 by the Commons, that such might have the like Actions as their Intestates: but the King answers, Quant à ceux qui devient inte∣state le Roy voet que l' Evesque eit action en tien case depuis que il doit re∣sponder as autres. But from that of 31 E. 3. saving only the alteration by 21 H. 8. the Law hath continued uniformly to this day.

FINIS.

Notes

• (a) 1.1

  Canuti. leg. cap. 68.
• (b) 1.2

  Ejusdem leg. cap. 68.
• (c) 1.3

  De moribus Germanorum.
• (d) 1.4

  Canut. legibus, cap. 75.
• (e) 1.5

  Leg. Ed. Con∣fess. cap. de hereto∣chiis.
• (f) 1.6

  F. S. Instit. de bonorum possessione.
• a 1.7

  Adjiciuntur In∣gulph•• Crolandensi MS. in Bibliotheca Cottoniana.
• (b) 1.8

  Apud Matth. Paris.
• (c) 1.9

  Will. Novoburg. hist. l. 3. c. 22.
• (d) 1.10

  Glanvill. li••. 7. cap 6.
• (a) 1.11

  Reperiuntur seorsimsaepius exem∣plaria illius diplo∣matis & penes Math. Paris, Rogerum Wendover MS. & Thom. Rudburne MS. extant, sed in Archivis non extant.
• * 1.12

  V. Manuscriptum nostr. de Magn. Char∣ta, cap. 16. in fine.
• (b) 1.13

  Cap. cum mor∣tis incerta.
• (c) 1.14

  Provinc. Con∣stitut. tit. de immu∣nitate Ecclesiae, C. accidit novitate.
• (d) 1.15

  Jo. de Athona ad Legat. Othobonum c. cum mortis in∣certa.
• (e) 1.16

  Praeter Annales obvios, Linwood ad C. quia verb. Octobo∣ni, tit. de constitutio∣nibus.
• (a) 1.17

  Bracton. lib. 2. de acq. rer. dom. cap. 26. sect. 2.
• (b) 1.18

  In Annal. Bur∣tonensis coenobii penes v. cl. Thom. Allen Oxoniensem MS. A. 1257.
• (c) 1.19

  Innocent. 4. tit. de Simionia, c. ad Apostolicum.
• (d) 1.20

  MS in Thesau∣ro Cottoniano c. 31. de divisione haredi∣tatis.
• (e) 1.21

  Parl. 21 E. 3. Cro. Hill. art. 51. & consule si vis Parl. octab. Purif. 23 E. 3. art. 35. in Archiris.
• (a) 1.22

  Hensloes Case apud v. cl. Ed. Coke part 9. sect. 39, 40.
• (b) 1.23

  ••racton. lib. 2. de acq. rerum dom. cap. 26. sect. 2.
• (c) 1.24

  Ita facere te∣stamentum nomine defuncti sumitur a∣pud Canonici juris peritos. videsis Zebu∣lam prax. Episcop. verb. legatum, sect. 8.
• (d) 1.25

  Mos iste repe∣ritur apud Matth. Paris, histor. major, pag. 982. Ubi de Pontificia constituti∣one de intestatis edit. Londinens.
• (e) 1.26

  Clauf. 5 H. 3. par. 2. memb. 3.
• (f) 1.27

  Claus. 17 H. 3. memb. 8.
• (g) 1.28

  Matth. Paris, fo. 959. Edit. Lon∣dinens.
• (h) 1.29

  Fleta l. 2. c. 57.
• (i) 1.30

  Quod videre est in Cro. Wigorn. Ecclesiae in Biblioth. Cott. sub initio E. 1.
• * 1.31

  28 E. 3. fo. 21. a.
• (k) 1.32

  Videsis 25 E. 3. fo. 54. a. sed & plura in l. 9. Vir. cl. E. Cook par. 5. fo. 82. & par. 9. f. 39. & 40. & 19 Ed. 3. tit. Cove∣nant. 24.
• (l) 1.33

  Quindena Pasch. 17 E. 3. Artic. 49.