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

THE Jurisdiction of Testaments being either Intrin­secal or Extrinsecal, (that is) either touching Pro­bate, or Recoveries of Legacies: First for the Intrin­secal, 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 ff. Test. quem­admodum aperiant. per tot. Et vide etiam Auth. 74. c. 2. sit igitur Licentia. Praetor. And afterward the obsignation, insinuation and Probate of them in Rome, was before the Magister Census, or De Episc. l. 41. & tit. de testam. l. 10. & 23. & Caput Theo­dos. ll. 4. tit. 4. l. 4. Ubi visendus inter­pres vetus: 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 Authent. 44. & ibid. Cujacius, & vi­desis Gloss. Graeco­barb. Meursii in [...]. [...], 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. [Page 2]And the Emperour Leo Novel 44. for­mulas ver. Testam. aperiendorum, vide­sis I. Paul Regest. sen­tent. l. 4. tit. 6. & Marculph. Formul. l. 2. c. 37. & 38. 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 be­fore their Chief Governours, as Defensores or Praesides: neither was the Church permitted to have to do with the Insinuation of Te­staments, but expresly forbidden by a rescript C. de Episc. & eler. l. 41. repetita. 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 Hostiens. in pro­oem. sum. & vetusti­ores canonist. passim. 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 Cap. 18. Car­thage holden in the year 398. it was ordained, Ʋt Episcopus tuitionem testamentorum non suscipiat. And this being then established by two hun­dred and fourteen Bishops, was afterwards made a part of Dist. de secular. negotiis, cap. 5. the Decrees, or Canon Law, collected by Gratian, and published and au­thorized by Pope Eugenius the Third about 1150. and the Gloss upon that Canon interprets tuitio for Aperture or Probate. So also Pope Ad c. nos qui­dem extra tit. de testament. Innocent the Fourth understands it: publicatio (saith he) fieri non debet apud Episcopum; and he vouches that Law, Tit. de Instrum. edit. S. ostens. 34. vid. D. D. ad c. nos quidem, &c. si haere­des extra tit. de test. & Linwood de test. c. item S. infin. & cap. stat. S. approb. Consulta ducalia tit. de Te­stament. 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 2 R. 3. Test. 4. 14 H. 7. so. 12. b. by the Spiritual Law; neither is any such thing given by any later Quod discimus ex Bullarii summa quam edidit S. Gua­ranta. 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 C. de Episc. & Cler. l. 28. Nulli, & l. 49. si quis ad de­clinand authentic. 135. c. 10. & vid. c. 11. Bishop of the Diocess sometimes by himself, some­times 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 ff. de Petit. hae­red. & tit. de legat. is the Magi­strates only.

CHAP. IV. In whom by the Canon Law.

BUt by the Canon Law, the general care of execution of Testa­ments 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. Extr. de test. c. 6. 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 Coun­cil of Mentz this is taken, I have not yet learned; Lib. 15. c. 34. 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 Ju­risdiction; for so is the Canon Nos quidem extr. tit. de testam. Nei­ther is that Canon Ʋltima Voluntas in C. 13. q. 2. taken out of S. Gregory, otherwise to be understood, if you interpret it as you ought by those Videsis Greg. lib. 3. Epist. 9. & lib. 9. Epist. 20. 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 Inno­cent the Fourth, Bernard, and others of the rest deliver; and the Vid. Gonzal. Zuarez Prax. Eccles. Lam. 2. Praelud. 2. Sect. 44. & Zerula prop Episcop. verb. leg. ad quaest. 9. 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, Sess. 12. de re­form. cap. 6. & Sess. ult. de reformat. c. 4. nothing is spoken of but Commutations of Lega­cies, 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, ex­cept 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 con­jecture 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 Iamb. Peramb. Cant. p. 548. 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. And ic hidde for goder lufan minne leofan Hlaford. ꝧ He ne þafige ꝧ ae [...]ig man uncerne [...]pide aƿende; 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 Execu­tion of this Testament was within the Jurisdiction of the Lords Court, as also the Probate; and that especially, because divers Lords Hensloes Case 9. Rep. b. of Mannors have to this day the Probate of Testaments by Cu­stom 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 Ju­risdiction 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 ex­ample of Siwerth of Durham's Testament, in the In Bibli [...]thec. Cottoniana. 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 au­tem 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 allud scripsenat, In lib. concess [...]siet. & ordinaverat apud Lindane corum praedictorum Testimonio virorum.

Cum itaque Ailwinus Alderman hoc audisset, & Chirographum vidisset, re misit illico ad eum Wlnothum de Stowe cum Brithelmo, sciscitatusque est [Page 6]ab eo quid aut quomodo vellet de Testamento suo: qui mox per cosdem renuntiavit ei, sic suum Testamentum absque omni contradictione vel mu­tatione se velle stare, sicut praefatus Abbas illud in Chirographo posuerat, quod ut Ailwinus Alderman audivit, totum concessit, ut staret sient 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 Suverth 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 V. Spicilegia in Eadmerum..

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 infir­mabitur, sicut ipse dabit vel dare jusserit pecuniam suam, ita datam esse concedo. This may perhaps seem to denote, that the Kings Court de­termined 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 Juris­diction t ohave been in the Church, and the Extrinsecal in the Kings Court; I mean that which is found in the Treatise attributed to Randall of Lib. 7. cap. 6. & 7. Glanvill Chief Justice under H. 2. where he sayes, that if a Legacy be detained, the Executors or other friends of the Te­stator, were to get the Kings Writ to the Sheriff, commanding quod justè & sine dilatione facias stare rationabilem divisum, (that is, the Be­quest or Legacy) N. sicut rationabiliter monstrari poterit quod eam fecerit, & quod ipsam stare debeat, &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 Curia Christianitatis audiri debet, & ter­minari, quià placitum de Testamentis coram Judice Ecclesiastico fieri debet, & per illorum qui Testamento intersuerint testimonia secundum ju­ris 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 29 Ed. 3.33. a. 44 Ed. 3.16. a. Perk. 493. 22H. 6.52. Law, wherein the Testament is traversable, and the Traverse tryable in the Kings Court by Certificate to the Tempo­ral 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, [Page 7]Bastardy and Profession are to be certified, because within the Bishops Jurisdiction. 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 Ex­trinsecal 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 Ita Jo. Salisbur­gensis de Nugis Cu­rial. lib. 5. cap. 15. & 16. 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 pub­lished by Command of David the First under the time of our Hen. 1. hath for the most part the same syllables with this supposed Glan­vill, and expresly Regiam Majestat. lib. 3. cap. 38. 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, Jo. Sarisburg. Epist. 57. 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 up­on either of these Jurisdictions of Testaments in the Church; but in­deed there is one that may seem somewhat to prove for that which [Page 8]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 Epist. 89. of Salisbury relates it, was, that one Richard de Anestia in foro secularium Judicum petitionem haereditatis ad bona avunculi obtinenda instituit, against Mabile de Franck­villa, 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 rela­tion of the Case also, Richardus insistebat, sayes the Author, institu­tioni Avunculi, petitionem haereditatis instituens; and on the other side, Mabile maxime Patris novissmae 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 uni­versum jus defuncti, and not only our inheritance; although it doth also amongst some Barth. ad tit. de summa Tr. l. 1. num. 42. 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 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 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 [Page 10]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 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 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 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 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 Ʋletott 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 Ʋletott'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, 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 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 Tempo­ral 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 Ju­risdiction 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. Cap. 15. magn. Char. quam etiam do­navit Johannes Rex, uti videre est apud Matth. Paris. and per­haps 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 Te­stament; for that the Spiritual Court did from the beginning of H. 3. exercise a Jurisdiction for recovery of Legacies, is infallibly proved by 2 H. 3. tit. pro­hib. 13. 4 H. 3. ibidem. 28. 6 H. 3. ibid. 17. 8 H. 3. ibid. 19. 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 Mich. 16 & 17 H. 3. Rot. 15 &c. & 18 H. 3. coram W. de Raleigh, &c. Rot. 36. in arce Londi­nensi. Christianitatis de Catallis quae non sunt de Te­stamento 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 Lib. 5. Tract. de exceptiontbus, cap. 12 pag. 4091. b. Bracton sayes, where his Printed Copy is ex­ceedingly corrupted. But it was clear Law in the time of this Bra­cton, who was a Judge in the Common Pleas in the latter part of H. 3. that locum Idem so. 4076. non habet probatio in Causa testamentaria si Catalla legen­tur & 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 Register. Orig. so. 48. (b) &c. Register, placita de Catallis & debitis, quae sunt de Testamento & Matrimonio, ad forum Ec­clesiae 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 exce­ptions, 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 [Page 13]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, especially in Henry 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 ex­presly, Fleta lib. 2. cap. 57. Sect. Execu­tor. 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 Ad tit. de re­stam. c. Statut. verb. Ecclesiast. libertat. libertas quoad secundum scilicet, puniendum impedientes quo minus testamenta & altimae voluntates defunctorum procedant, ortum habet à privilegits etiam in ea parte concessis, & à consuetudine similiter de scientia Regum Angl. diutius observata: and further, potuit (saith he) habere ortum out of those De Episc. & Cler. & nulli 28. & siquis ad designan­dum, 49, &c. Laws in the Code that made the Bishop a Protector of Le­gacies 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 Ecclesi­astical Court might have gained Jurisdiction over all personal Lega­cies 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 Ju­risdiction of the Crown, that is, touching this Extrinsecal Jurisdiction which (as is shewed) did belong to the Temporal Courts: but who­soever 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 Hun­dred 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 Cod. de lib. Natur. l. 2. Matr. & Author. 89, &c. Law, that permits not a meer Bastard and Succes­sion 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 Jurisdi­ction for 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.

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 cƿiale aƿe, the Lord Canuti. leg. cap. 68. is only to have the Heriotts due to him, which are al­so appointed by 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 [Page 16]the next succeeded, according to that in Tacitus 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 Canut. legibus, cap. [...]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 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. 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. 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. 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 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 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 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 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, Cap. cum mor­tis incerta. so [Page 19]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 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 Ecolesiasticá (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 Otho­bon, though he rightly call that provision, Provisio Parliamentalis: yet most ignorantly and ridiculously 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 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 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, Idem quod mortuo (so is the In Annal. Bur­tonensis coenobii penes v. cl. Thom. Allen Oxoniensem MS. A. 1257. Article) laico sine Testamento non capiantur bona ipsius in manus dominorum. Sed inde solvantur de­bita ipsius, & residua in usus filiorum suorum, & proximorum indigenti­um 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 im­ploying 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 Innocent. 4. tit. de Simionia, c. ad Apostolicum. for a constant truth, that the Custome in Britania was, that tertia pars bo­norum 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 [Page 21]had some such other Testimony touching it, as we find in an old Manu­script Volume titled MS in Thesau­ro Cottoniano c. 31. de divisione haredi­tatis. 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 Cae­sari, & 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 Testa­tors Goods, before they would give them Probate; which was com­plained Parl. 21 E. 3. Cro. Hill. art. 51. & consule si vis Parl. octab. Puris. 23 E. 3. art. 35. in Archivis. of in Parliament amongst the Grievances of the Com­mons.

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 Hensloes Case apud v. cl. Ed. Coke part 9. sect. 39, 40. 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 in­quisitionem nobis missam sub sigillo Stephani de Segrave, & aliorum probo­rum & legalium hominum, quod Richardus filius Dunae non obiit intesta­tus, 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 capisolebant, or that these were taken in regard of dying intestate only. Indeed it appears not suffi­ciently 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 Inte­state, which afterward not appearing, or being satisfied, or it appear­ing 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 a move the Kings hands, and deliver all over to the Execu­tors: 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 Bracton. lib. 2. de acq. rerum dom. cap. 26. sect. 2. 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 fa­ciendum testamentum defuncti; but plainly, that ad faciendum, &c. hath equal reference to the Intestates as to Testators: for no name of an Ad­ministrator 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 Ita facere te­stamentum nomine defuncti sumitur a­pud Canonici juris peritos. videsis Zebu­lam prax. Episcop. verb. legatum, sect. 8. 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 con­ceived 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 Mos iste repe­ritur apud Matth. Paris, histor. major, pag. 982. Ubi de Pontificia constituti­one de intestatis edit. Londinens. hoc expressores & exe­cutores; which friends appointing of Legacies (as if the Intestate had given them) and making disposition of Intestates Goods, were as Te­staments of those Intestates; and they did truly as Executors facere Testamentum defuncti, in which sense it might be spoken of any Execu­tors or Administrators that intermedled in those times. And many Writs occurr in the Close Roll of King John and H. 3. that have ex­presly 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, ac­cording 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, [Page 23]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 irre­gular 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 ra­ther of some sudden or arbitrary course of granting them. Indeed some two years before that of Fitz-dune, there is an example in Bedford­shire, that might seem more fully to prove what is collected out of the other: the Writ is thus, Rex Claus. 5 H. 3. par. 2. memb. 3. Vicecom. Bedford salutem. Prae­cipimus tibi quod blada & catalla quae fuerunt Roberti de Insula & Rossiae uxoris ejus defunct. in Wahall & Brokeberge arestari facias & salvo cu­stodiri, 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 proceed­ing, 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 Claus. 17 H. 3. memb. 8. 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 pro­perly 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 ma­ny; but some such temporary usurpation, as in 31 H. 3. Pope Inno­cent the Fourth here had for a while executed by his Ministers the Fran­ciscans and Dominicans, in not only getting into his own hands, but also to his own use, Matth. Paris, so. 959. Edit. Lon­dinens. all the Goods of the Clergy-men that dyed Intestate through England, which as Matthew Paris that then lived, relates it, cum audisset dominus Rex, detestans Romanae Curiae augmentosam & mul­tiplicem 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 [Page 24]the Goods of Intestates did come ad Ordinarios disponenda, which agrees with that of Bracton before cited, and iterated in the same syllables in Fleta Fleta l. 2. c. 57. which was written under E. 1. And the disposition of Latestates Goods was enquired after in those dayes Quod videre est in Cro. Wigorn. Ecclesiae in Biblioth. Cott. sub initio E. 1. amongst Ar­ticles 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, 28 E. 3 fo. 21. a. and perhaps also by the name of Administrators: 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. but that name is scarce found (as I think not at all) given a Defendant to an Action brought before se­ven 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 of­fered Quindena Pasch. 17 E. 3. Artic. 49. by the Commons, that such might have the like Actions as their Intestates: but the King answers, Quant à ceux qui devient inte­state le Roy voet que l'Evesque eit action en tien case depuis que il doit re­sponder 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.