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 (a) 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 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 (c) 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 (a) 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 (b) 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 (c) 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 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 pradict donec aliud mandatum nostrum inde habueritis And in 7 Hen. 3. a Writ is directed to the Sheriff of Lincoln (d) 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
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 PART II. OF THE Disposition or Administration OF Intestates Goods 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 cÆ¿iale aÆ¿e the Lord (a) Canuti leg cap. 68. is only to have the Heriotts due to him which are also appointed by (b) 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 the next succeeded according to that in Tacitus (c) 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 (d) Canut legibus cap. â—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 (e) 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) 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 (a) 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. (b) 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 (c) 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 (d) 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 (a) 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
attributed to Randall of (e) 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 (f) 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 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 (g) 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 (h) 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 (i) 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 we note out of Glanvill concerning the Intrinsecal Jurisdiction at that time in the Temporal Court for in an Appeal sent to Pope Alexander the Third the Case as John (k) 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 (l) 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
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 (c) 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 (d) 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 (e) 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 (a) 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 ê§ He ne þafige ê§ aeâ—ig man uncerne â—pide aÆ¿ende 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 (b) 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 (c) In Bibliâ—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 lectumque 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. concessâ—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 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 (d) 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
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. (a) 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 (b) 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 (c) 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 (d) 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 (e) 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 (f) 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 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 (g) 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 (h) 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 (i) 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 (k) 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