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Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
england_n	bishop_n	king_n	legate_n	2,634	5	10.4439	5	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A59100	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.; Selections. 1683	Selden, John, 1584-1654.; Littleton, Adam, 1627-1694.; White, Robert, 1645-1703.; Selden, John, 1584-1654. Jani Anglorum facies altera. English.; Selden, John, 1584-1654. England's epinomis.; Selden, John, 1584-1654. Of the original of ecclesiastical jurisdiction of testaments.	1683 (1683)	Wing S2441; ESTC R14343	196,477	246

Aid in our Realm but by the common advice of our Realm unless it be to ransom our Body and to make our first-born Son a Soldier or Knight and to marry our eldest Daughter once 38. Some ascribe that Law to Henry which Lawyers call the Courtesie of England whereby a man having had a Child by his Wife when she dyes enjoyes her Estate for his life 39. He made a Law that poor shipwrackt persons should have their Goods restored to them if there were any living creature on Ship-board that escaped drowning Forasmuch as before that time whatsoever through the misfortune of shipwrack was cast on Shoar was adjudged to the Exchequer except that the persons who suffered shipwrack and had escaped alive did themselves within such a time refit and repair the Vessel So the Chronicle of the Monastery of S. Martin de Bello This right is called Wreck or if you will Uareck of the Sea How agreeable to the Law of Nations I trouble not my self to enquire That more ancient Custom is as it were suitable to the Norman usage Now at this time our Lawyers and that the more modern Law of Edward the First pass judgement according to the more correct Copy of King Henry And they reckon it too among the most ancient Customs of the Kingdom Did therefore King Richard order or did Hoveden relate this to no purpose or without any need If one who suffers shipwrack dye in the Ship let his Sons or Daughters his Brethren or Sisters have what he left according as they can shew and make out that they are his next heirs Or if the deceased have neither Sons nor Daughters nor Brothers nor Sisters the King is to have his Chattels Can one imagine that this Law he made at Messina when he was engaged in War was calculated only for that time or place Certainly in the Archives there is elsewhere to be met with as much as this 40. That he might with a stout Army bear the brunt of Baldwin Earl of Flanders and Louis King of France who had conspired being bound by mutual Oaths to one another with the Duke of Anjou to take away from King Henry by force of Arms the Dutchy of Normandy he first of all t is Polydore avers it laid a heavy Tax upon the people to carry on the new War which thing with the Kings that followed after grew to be a custom He was the last of the Normans of a Male descent and as to the method of our undertaking here we treat of him last CHAP. IX In King Stephen's Reign all was to pieces Abundance of Castles built Of the priviledge of Coining Appeals to the Court of Rome now set on foot The Roman Laws brought in but disowned An instance in the Wonder-working Parliament AS of old unless the Shields were laid up there was no Dancing at Weddings so except Arms be put aside there is no pleading of Laws That Antipathy betwixt Arms and Laws England was all over sensible of if ever at any time in the Reign of K. STEPHEN Count of Blois King Henry's Nephew by his Sister Adela For he did not only break the Law and his Oath too to get a Kingdom but also being saluted King by those who perfidiously opposed Mawd the right and true heir of King Henry he reigned with an improved wickedness For he did so strangely and odly chop and change every thing it is Malmsbury speaks it as if he had sworn only for this intent that he might shew himself to the whole Kingdom a Dodger and Shammer of his Oath But as he saith perjuros merito perjuria fallunt that is Such men as Perjuries do make their Trade By their own Perjuries most justly are betray'd They are things of custom to which he swore and such as whereby former priviledges are ratifed rather than new ones granted However some things there are that may be worth the transcribing 41. Castles were frequently raised 'tis Nubrigensis relates it in the several Counties by the bandying of parties and there were in England in a manner as many Kings or rather as many Tyrants as Lords of Castles having severally the stamping of their own Coin and a power of giving Law to the Subjects after a Royal manner Then was the Kingdom plainly torn to pieces and the right of Majesty shattered which gains to it self not the least lustre from stamping of Money Though I know very well that before the Normans in the City of Rochester Canterbury and in other Corporations and Towns Abbots and Bishops had by right of priviledge their Stampers and Coiners of Money 42. Next to the King Theobald Arch Bishop of Canterbury presided over the Council of London where there were also present the Peers of the Realm which buzzed with new appeals For in England t is Henry of Huntington sayes it appeals were not in use till Henry Bishop of Winchester when he was Legate cruelly intruded them to his own mischief Wherefore what Cardinal Bellarmin has writ beginning at the Synod of Sardis concerning the no body knows how old time of the universal right of appealing to the Pope of Rome does not at all as to matter of fact seem to touch upon this Kingdom of ours by many and many a fair mile 43. In the time of King Stephen so 't is in the Polycraticon of John of Salisbury the Roman Laws were banisht the Realm which the Ho●se of the Right Reverend Theobald Lord Primate of Britanny had fetcht or sent for over into Britanny Besides it was forbidden by Royal Proclamation that no one should retain or keep by him the Books If you understand the Laws of the Empire I rather take them to be the Decrees of the Popes it will not be much amiss out of the Parliament Records to adjoyn these things of later date In the Parliament holden by Richard of Bourdeaux which is said to have wrought Wonders Upon the Impeachment of Alexander Nevil Arch-Bishop of Canterbury Robert Uere Duke of Ireland Michael Pole Earl of Suffolk Thomas Duke of Glocester Richard Earl of Arundel Thomas Beauchamp Earl of Warwick and others That they being intrusted with the management of the Kingdom by soothing up the easie and youthful temper of the King did assist one another for their own private interest more than the publick well near to the ruine and overthrow of the Government it self the Common Lawyers and Civilians are consulted with about the form of drawing up the Charge which they answer all as one man was not agreeable to the rule of the Laws But the Barons of Parliament reply That they would be tyed up to no rules nor be led by the punctilioes of the Roman Law but would by their own authority pass judgement pur ce que la royalme d' Angleterre n' estoit devant ces heures n'y à l' entent de nostre dit Seigneur le Roy Seigneurs de Parlament unque ne serra

to have it so understood 38. King Edgar like a King of good Fellows or Master of Revels made a Law for Drinking He gave order that studs or knobs of Silver or Gold so Malmsbury tells us should be fastned to the sides of their Cups or drinking Vessels that when every one knew his mark or boundary he should out of modesty not either himself covet or force another to desire more than his stint This is the only Law before the first Parliament under King James has been made against those Swill-bowls 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Swabbers of drunken Feasts and lusty Rowers In full brimm'd Rummers that do ply their Oars who by their carowses tipling up Nestor's years as if they were celebrating the Goddess Anna Perenna do at the same time drink others Healths and mischief and spoil their own and the Publick 39. There was no choice of Prelates these are the words of Ingulph again that was merely free and canonical but the Court conferred all Dignities as well of Bishops as of Abbots by the Kings Ring and Staff according to his good pleasure The Election or choice was in the Clergy and the Monks but they desired him whom they had chosen of the King Edmund in King Ethelred's time was after this manner made Bishop of the Holy Island on the Coast of Northumberland And King Edgar in his Patent which he signed to the Abby of Glastenbury retained to himself and his Heirs the power of bestowing the Pastoral Staff to the Brother Elect. 40. To as many as King Knute retained with him in England to wit to the Danes for by their hands also was the Scepter of this Kingdom managed it was granted that they should have a firm peace all over so that if any of the English killed any of those men whom the King had brought along with him if he could not clear himself by the Judgment of God that is by Ordeal to wit by water and burning hot iron Justice should be done upon him But if he run away and could not be taken there should be paid for him sixty six marks and they were gathered in the Village where the Party was slain and therefore because they had not the murderer forth coming and if in such Village by reason of their poverty they could not be gathered then they should be gathered in the Hundred to be paid into the Kings Treasure In this manner writes Henry Bracton who observes that hence the business of Englishshire came into fashion in the Inquests of murder 41. Hand-Writings i.e. Patents and Grants till Edward the Confessors time were confirmed by the subscriptions of faithful Persons present a thing practised too among the Britans in King Arthur's time as John Price informs us out of a very ancient Book of the Church of Landaff Those subscriptions were accompanied with Golden Crosses and other sacred Seals or like stamps 42. King Harald made a Law that whosoever of the Welch should be found with a Weapon about him without the bound which he had set them to wit Offa's dike he should have his Right Hand cut off by the Kings Officers This dike our Chorographer tells us was cut by Offa King of the Mercians and drawn along from the mouth of the River Dee to the mouth of the River Wye for about eighty miles in length on purpose to keep the English and Welch asunder CHAP. XXV The Royal Consorts great Priviledge of Granting Felons Estates forfeited to the King Estates granted by the King with three Exceptions of Expedition Bridge and Castle The Ceremony of the Kings presenting a Turf at the Altar of that Church to which he gave Land Such a Grant of King Ethelbald comprized in old Verse THe Donations or Grants of the Royal Consort though not by the Kings Authority contrary to what the Priviledge of any other Wife is were ratified also in that Age as they were by the Roman Law Which by the Patent of Aethelswith Wife to Burghred King of the Mercians granted to Cuthwuls in the year 868. hath been long since made out by Sir Edward Coke Lord Chief Justice of the Common Pleas Where also King Ethelred's ancient Charter proves that the Estates of Felons those I mean who concern themselves in Burglaries and Robberies are forfeited to the King Having already mentioned those Hand-writings or Grants which are from one hand and t'other conveyances of Tenure the fewel of quarrels I have a mind over and above what has been said to set down also these Remarks as being to our purpose and taken from the Saxons As for instance that those are most frequent whereby Estates are conveyed to be held with the best and fairest right yet most commonly these three things excepted to wit Expedition Repairing of Bridges and Building of Castles And that those to whom the Grants were made were very seldom acquitted upon this account These three exceptions are noted by the term of a three-knotted necessity in an old Charter wherein King Cedwalla granted to Wilfrid the first Bishop of Shelsey in Sussex the Village of Paganham in the said County For though in the Grants of King Ethelulph the Church be free says Ingulph and there be a concession of all things for the release of our Souls and pardon of our sins to serve God alone without Expedition and building of Bridge and fortifying of Castle to the intent that the Clergy might wholly attend Divine Service Yet in that publick debate of Parliament in the Reign of Henry the third concerning the ancient State Freedom and Government of the English Church and concerning the hourly exactions of the Pope and the Leeches Jugglers and Decoys of Rome that strolled up and down the Country to pick Peoples Pockets to the great prejudice of the Common-wealth they did indeed stand for the priviledge of the Church and produced as Witnesses thereof the Instruments and Grants of Kings who nevertheless were not so much inclined to countenance that liberty of the Church but that as Matthew Paris observes They always reserved to themselves for the publick advantage of the Kingdom three things to wit Expedition and the repairing or making up of Bridge or Castle that by them they might withstand the incursions of the Enemy And King Ethelbald hath this form I grant that all the Monasteries and Churches of my Kingdom be discharged from publick Customs or Taxes Works or Services and Burdens or Payments or Attendances unless it be the building and repairing of Castles or Bridges which cannot be released to any one I take no notice how King Ethelred the twelfth perhaps but by no means the fifteenth wherein an Historian of ours has blundred hath signed the third year of his Reign by the term of an Olympiad after the manner of the Greek computation or reckoning As likewise I pass other things of the like kind which are many times used and practised according to the

nor upon the death of Arch-Bishop or Bishop or Abbot will I take any thing of the domain of the Church or of the men thereof till a Successor enter upon it And all evil Customs wherewith the Kingdom of England was unjustly oppressed I do henceforward take away which evil usages I do here in part set down 18. If any one of my Barons Counts or others that hold of me shall dye his Heir shall not redeem his Land as he was wont to do in the time of my Father but relieve it with a lawful and due relief In like manner also shall the Homagers or Tenants of my Barons relieve their Lands from their Lords with a lawful and just relief It appears that in the times of the Saxons a Hereot was paid to the Lord at a Tenants death upon the account of provision for War for here in Saxon signifies an Army and that which in our memory now in French is called a Relief Henry of Bracton sayes 't is an engagement to recognize the Lord doth bear a resemblance of the ancient Hereot Thereupon it is a guess saith William Lambard that the Normans being Conquerors did remit the Hereot to the Angles whom they had conquered and stripped of all kind of Armour and that for it they exacted money of the poor wretches To this agrees that which is mentioned in the State of England concerning the Nobles of Berkshire A Tain or Knight of the Kings holding of him did at his death for a Relief part with all his Arms to the King and one Horse with a Saddle and another without a Saddle And if he had Hounds or Hawks they were presented to the King that if he pleased he might take them And in an ancient Sanction of Conrade the First Emperour of Germany If a Souldier that is Tenant or Lessee happen to dye let his Heir have the Fee so that he observe the use of the greater Vavasors in giving his Horses and Arms to the Seniors or Lords John Mariana takes notice that the word Seniors in the Vular Languages Spanish Italian and French signifies Lords and that to have been in use from the time of Charlemain's Reign But these things you may have in more plenty from the Feudists those who write concerning Tenures 19. If any of my Barons or other men Homagers or Tenants of mine I return to King Henry's Charter shall have a mind to give his Daughter or Sister or Niece or Kinswoman in marriage let him speak with me about it But neither will I take any thing of his for this leave and licence nor will I hinder him from betrothing her except he shall have a design of giving her to an enemy of mine 20. If upon the death of a Baron or any other Homager of mine there be left a Daughter that is an Heiress I will bestow her with the advice of my Barons together with her Land 21. If upon the death of the Husband his Wife be left without Children she shall have her Dowry and right of Marriage as long as she shall keep her body according to Law and I will not bestow her but according to her own liking And if there be Children either the Wife or some one else near of kin shall be their Guardian and Trustee of their Land who ought to be just 22. I give order that my Homagers do in like manner regulate themselves towards the Sons and Daughters and Wives of their Homagers 23. The common Duty of Money or Coinage which was taken through all Cities and Counties which was not in the time of King Edward I do utterly forbid that henceforward this be no more done 24. If any one of my Barons or Homagers shall be sick and weak according as he himself shall give or order any one to give his money I grant it so to be given but if he himself being prevented either by Arms or by Sickness hath neither given his money nor disposed of it to give then let his Wife or Children or Parents and his lawful Homagers for his souls health divide it as to them shall seem best And in Canutus his Laws Let the Lord or Owner at his own discretion make a just distribution of what he hath to his Wife and Children and the next of kin But at this time and long since Church men have been as it were the Distributors and Awarders of the Goods of such persons as dye Intestate or without making their Wills and every Bishop as Ordinary in his own Diocess is the chief Judge in these cases John Stratford Arch-Bishop of Canterbury saith it and it is averred in the Records of our Law that this Jurisdiction also concerning Wills was of old long time ago in an ancient Constitution intrusted to the Church by the consent of the King and Peers However in what Kings time this was done neither does he relate nor do I any where find as William Lindwood in his Provincial acknowledgeth It is a thing very well known that after Tryal of right Wills were wont to be opened in the Ecclesiastical Court even in the Reign of Henry the Second Ralph Glanvill is my witness contrary to what order was taken in the Imperial Decrees of the Romans And peradventure it will appear so to have been before Glanvill as he will tell you if you go to him although you have quoted by my self some where a Royal Rescript or Order to a High Sheriff That he do justly and without delay cause to stand i. e. appoint and confirm a reasonable share to such an one that is that the Legatee may obtain and enjoy his right what was bequested to him by the Sheriffs help I come back now to my track again 25. If any one of my Barons or Homagers shall make a forfeit he shall not give a pawn in the scarcity of his money as he did in the time of my Brother or my Father but according to the quality of his forfeiture nor shall he make amends as he would have done heretofore in my Brothers or Fathers time 26. If he shall be convicted of perfidiousness or of foul misdemeanors as his fault shall be so let him make amends 27. The Forests by the common advice of my Barons I have kept in mine own hand in the same manner as my Father had them 28. To those Souldiers or Knights who hold and maintain their Lands by Coats of Male that is per fee de Hauberke that they may be ready to attend their Lords with Habergeons or Coats of Male compleatly armed Cap a pee I grant the Plough-lands of their Domains acquitted from all Gelds and from every proper Gift of mine that as they are eased from so great a Charge and Grievance so they may furnish themselves well with Horse and Arms that they may be fit and ready for my service and for the defence of my Realm 29. I restore unto you the Law of King Edward with other amendments

at Rome One hundred for the honour of S. Peter to find Lights for his Church another hundred for the honour of S. Paul on the like occasion and the third hundred for the Pope's use to enlarge his Alms. This was done in the year 858. when Leo the Fourth was Pope Lin. 9. Thirty pence of live money Possibly the worth or value of thirty pence in Goods and Chattels King Offa in his Grant thus words it quibus sors tantum contulit extra domos in pascuis ut triginta argenteorum pretium excederet who had an Estate besides Houses in Lands which might exceed the value of thirty silver pence Lin. 15. Out of a Rescript of Pope Gregory We have the whole Letter set down in Spelman which speaks in English thus GREGORY the Bishop Servant of the Servants of God to his Worshipful Brethren the arch-Arch-Bishops of Canterbury and York and to their Suffraegans and to his beloved Sons the Abbots Priors Arch-Deacons and their Officials appointed throughout the Kingdom of England unto whom these Letters shall come Greeting and Apostolical Benediction In what manner the Pence of S. Peter which are due or owing to our Chamber are to be gathered in England and in what Bishopricks and Dioceses they are owing that there may arise no doubt on this occasion we have caused it to be set down in this present Writing according as it is contained in the Register of the Apostolick See Out of the Diocess of Canterbury seven pounds and eighteen shillings sterling Out of the Diocess of London sixteen pounds ten shillings And so of the rest Yeoven at the old City April 22. in the second year of our Popedom There is some difference though in the account of the Dioceses For after Lincoln he leaves out Coventry and puts Chichester for Chester 8 l. and then after Bath he puts in Salisbury and Coventry with a mistake 10 l. 10 s. for 5 s. and leaves York last Besides every body knows there are more Dioceses now than were then This was Gregory the Fifth that wrote this and it was our Author tells us in the time of King Edward the Second But Edward the Third in the year of the Lord 1365. and of his Reign 39. forbad these Peter-pence to be paid any more at Rome or to be gathered any longer in England CHAP. XV. Pag. 81. lin 10. Into six Provinces or Circuits As they are for number still with two Judges a piece though at first three How these differ from what they now are as to the Counties the Reader may easily satisfie himself Here are thirty seven of them as we now reckon only with this difference that Monmouth and Rutland are left out and Richmond and Copland are put in Pag. 82. lin 27. And if he perish i. e. sink let him lose one foot For that in this tryal by water was the sign and proof of guilt if the party thrown in did not swim which is quite contrary in the tryal of Witches as you will find in the next Chapter which treats of Ordeals Lin. 39. The Kings great Assise Assise is a word that hath many significations in our Law It is here in the Title taken for a Statute The Assises i. e. the Statutes and Ordinances of King Henry made at Clarendon But in this place it is used for a Jury and it is either the Great or Grand Assise which serv'd for the right of Property and was to consist of twelve Knights or the Petty Assise which served for the right of Possession only and was made up of twelve lawful men CHAP. XVI Pag. 86. lin 34. The superstitions and fopperies These you have also in Sir H. Spelman with an Incipit Missa Judicii which shews that the Church of Rome did once approve of these Customs which since she hath condemned notwithstanding her pretence of being Infallible I would to God she would deal as ingenuously in throwing off those other errors and corruptions we do so justly charge her with CHAP. XVII Pag. 87. lin 21. Hogenhine Or Agen-hyne that is ones own servant It is written also Home-hyne that is a servant of the house Lin. 33. Holding in Frank Pledge The Latin is francus tenens Wherefore amend the mistake and read holding in Frank Fee For Frank Pledg is a thing of another nature as belonging to a mans Behaviour and not to his Tenure Now Frank Fee is that which is free from all service when a man holds an Estate at the Common Law to himself and his heirs and not by such service as is required in ancient demesne Pag. 88. lin 12. The Falcidian Law So named from one Falcidius who being Tribune of the people in Augustus his time was the Maker of this Law Lin. 33. Twenty pounds worth of Land in yearly revenue So I render 20. libratae terrae For although Cowell in proportion to Quadrantata or Fardingdeal of Land which he saith is the fourth part of an Acre seem● at first to gather that Obolata then must be half an Acre Denariata a whole Acre and by consequence Solidata twelve Acres and Librata twenty times twelve that is two hundred and forty Acres Yet this was but a conceit of his own For by having found the word used with reference to Rent as well as Land thus 20. libratas terrae vel reditûs he is forced to acknowledge that it must signifie so much Land as may yield twenty shillings per annum To which opinion Spelman also giv● his assent But what quantity of Land this Librata terrae is cannot so easily be determined Cowell out of Skene tells us it contains four Oxgangs and every Oxgang thirteen Acres if so then it is fifty two Acres and twenty of them which make a Knights fee come to one thousand and forty Acres which somewhat exceeds the account here set down of six hundred and eighty out of the Red Book of the Exchequer But there is a great deal of more difference still as the account of the Knights fée is given by others In one Manuscript we read that A Yardland contains twenty four Acres four Yard-lands make one Hide that is ninety six Acres and five Hides make a Knights fee that is four hundred and eighty Acres the Relief whereof is a hundred Shillings Another Manuscript hath it thus Ten Acres according to ancient custom make one Fardel and four Fardels that is forty Acres make a Yardland and four Yardlands that is one hundred and sixty Acres make one Hide and four Hides that is six hundred and forty Acres make one Knights fee. A third reckons it otherwise that sixteen Yard-lands make a whole Knights fee which if we make a Yard-land to be twenty four Acres according to the first account com●s to three hundred eighty four Acres but if according to the second we take it for forty Acres it amounts to six hundred and forty Acres And saith he when they are taxed at six Shillings four Pence that is every of

the elder part of that Law regularly the Probate or Aperture of Wills was before the Praetor And afterward the obsignation insinuation and Probate of them in Rome was before the Magister Census or 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 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 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 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 Praefides neither was the Church permitted to have to do with the Insinuation of Testaments but expresly forbidden by a rescript 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 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 Carthage holden in the year 398. it was ordained Vt Episcopus tuitionem testamentorum non suscipiat And this being then established by two hundred and fourteen Bishops was afterwards made a part of 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 Innocent the Fourth understands it publicatio saith he fieri non debet apud Episcopum and he vouches that Law 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 by the Spiritual Law neither is any such thing given by any later 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 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 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. 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 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 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 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 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 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 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 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 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

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 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 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 5 H. 3. Robert of Lexinton having the possession of all the goods of Philip de Vletott 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 Vletott's goods denarios quos inde fieri feceritis salvo faciatis reponi sub sigillo vestro sigillo Executor praedict donec aliud mandatum nostrum inde habueritis And in 7 Hen. 3. a Writ is directed to the Sheriff of Lincoln 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. 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 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 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 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 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 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 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 expresly 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 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 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