(b) Jurisdiction over legacies in Glanvil's time is subject to the lay Courts'. A procedure to recover a legacy begun by royal writ was known to him. Selden gives specimens of writs of the time of Henry III ordering executors to fulfil the wills of their testators 2. It is possible, however, that in some of these cases the king assumed jurisdiction for special reasons, e. g. because the testator was his debtor. For it is probable that even in Henry II's time the Ecclesiastical Courts asserted a concurrent jurisdiction. The lay Courts did not issue writs of prohibition, if suits were begun for legacies in the spiritual Courts. Selden says that he has seen none on the plea rolls of either Richard I, John, or Henry III 1.

(c) Probably jurisdiction over the disposition of intestates' goods belonged to the temporal Courts-though it is impossible expressly to prove this ". In Saxon times the kindred who inherit would seem to have been the persons who undertook the duty of distribution. This is the arrangement which we find in Glanvil; and neither Walter de Map nor John of Salisbury mention this jurisdiction, though they have much to say of Ecclesiastical Courts and judges".

The Church acquired its exclusive jurisdiction over testamentary and intestate successions about the period of Magna Carta; the King's Court, as we have seen, had positively

the jurisdiction of lay lords may be the result of usurpation; in 1342 Archbp. Stratford complained of this; and this was not a single instance, Lyndwood, 3, 28, pp. 260, 263.

1 vii. 6, 7; xii. 17.

2 Original of the Ecclesiastical Jurisdiction of Testaments, chap. vii.

3 Bracton, 407: 'item non locum habet prohibitio in causa testamentaria

si catalla legentur et inde agatur in foro ecclesiastico.'

4 Original of the Ecclesiastical Jurisdiction of Testaments, chap. viii.

5

487.

Selden, Disposition of Intestates' Goods. Dyke v. Walford, 5 Moore, P. C.

6 Charter of Henry I, § 7 (Stubbs, Sel. Ch. p. 101).

7 Selden, Disposition of Intestates' Goods, chap. ii.

8 Matthew of Paris (cited Marriott v. Marriott, Gil. Rep. 206): 'Distributio rerum quae in testamento relinquitur auctoritate ecclesiae fiet, nec decima pars ut olim subtrahetur; si quis enim subitanea morte vel quolibet casu

defined the jurisdiction which it claimed for itself. The indirect effect of this was to define negatively the jurisdiction which was left to the Ecclesiastical Court.

3

(a) The Ecclesiastical Court was already trying cases of disputed wills, and this probably soon developed into a jurisdiction over the probate of wills. In a Constitution of Archbishop Stratford, 1380, it is said to belong to the Church, 'consensu regis et magnatum regis'.' Lyndwood says 'de consuetudine tamen haec approbatio in Anglia pertinet ad judices ecclesiasticos "." In Selden's opinion it rests upon immemorial custom, though he conjectures that it may possibly have been handed over to the Church by a Parliament in John's reign. We shall see that this is more probably true of the jurisdiction over intestate succession. The fact, however, that about this time the Church did get complete control over the other two branches of this jurisdiction was possibly decisive in favour of this closely allied branch of the same jurisdiction.

(b) We have seen that Bracton says that no prohibition. will lie if chattels are bequeathed and action is brought for them in the spiritual Court. Fleta' says the same. Selden thinks that possibly the jurisdiction of the bishop may have arisen from the rule of the civil law that they could interfere when legacies were left in pios usus3. The civil law, as he says, was, after the reign of Stephen, 'familiarly read by our English lawyers'; and the canon mentioned above", though not authorised as the general law of the Church till Gregory IX (24 Henry III), may have been thought to give jurisdiction over all legacies.

praeoccupatus fuit ut de rebus suis disponere non possit, distributio bonorum ejus ecclesiastica auctoritate fiet.' This was a charter got by the clergy from Richard I.

1 Hensloe's Case, 9 Co. Rep. p. 36. Cf. Lyndwood, 3. 13, p. 176: sub voc. 'ecclesiasticarum libertatum.'

2 3. 13, p. 174: sub voc. 'approbatis.'

3 Original of the Ecclesiastical Jurisdiction of Testaments, chap. vi. P. and M. ii. p. 339, n. 4.

4

2. 57. 13.

5 Original of the Ecclesiastical Jurisdiction of Testaments, chap. viii.

3

(c) A canon made at a council held at St. Paul's before Othobon1, 1268, speaks of 'a provision made as to the goods of intestates which is said to have emanated from the prelates of the realm with the consent of the king and barons.' In the opinion of Selden' and of Professor Maitland this refers to section 27 of Magna Carta which provides that the goods of an intestate shall be distributed by the hands of his near relations and friends 'per visum ecclesiae salvis unicuique debitis.' Bracton's text would seem to bear this out. The lord must not interfere except to get his heriot; ad ecclesiam et ad amicos pertinet executio bonorum. A claim to superintend the distribution by the kinsfolk will without much difficulty become a claim to administer. And the claim was here peculiarly strong. The man who dies intestate will probably have died unconfessed. There could be thus no sure and certain hope as to the future state of a man who had died intestate. The Church must make the best of a bad job and distribute, for the good of his soul, the property of which he might have disposed by will. The distribution by the kinsfolk of the deceased 'pro anima ejus' of Henry I's charter, the distribution 'per visum ecclesiae' of Magna Carta, actual administration by the Ordinary, are perhaps the stages of the process by which the Church acquired its jurisdiction.

That the Ecclesiastical Courts should have gained this exclusive jurisdiction about Henry III's reign is not strange. As Selden points out, the clergy played a part—perhaps the most important part-in the events which led to the passing of Magna Carta. There were English precedents for the 1 John of Athona, p. 122.

* Selden, Disposition of Intestates' Goods, chap. iii.; P. and M. ii. p. 358, n. 2. 3 M. C. 1215. 4 f. 60 b.

' P. and M. ii. pp. 355, 356. Cf. Bracton, f. 60 b. Coke (Hensloe's Case) said that the king, as parens patriae, originally seized the goods of intestates to pay debts, distribute, &c. Selden (Original, &c., chap. v.) resists this theory. The king was certainly entitled to them as bona vacantia if there were no heirs (Dyke v. Walford, 5 Moore, P. C. 487).

• Disposition of Intestates' Goods, chap. iv.

!,

C

NEW

jurisdiction of the Ecclesiastical Courts - though not for their exclusive jurisdiction. The only serious rival to the Ecclesiastical Courts was the King's Court, which had succeeded in reducing the local Courts-feudal or communalto comparative insignificance'. Magna Carta in many ways attempted to limit the great and encroaching jurisdiction of the King's Court. The judges of that Court were generally clerics. Under a strong and honest king like Henry II, and while combating the anarchical tendencies of feudalism, they acted loyally as temporal judges 2. But they cannot have been altogether averse to 'arranging a concordat' with the King's Court, which, while it gave great powers to that Court, gave to the Ecclesiastical Courts a jurisdiction larger than that possessed by any other Ecclesiastical Courts in Europe. For, as Lyndwood says, 'de consuetudine Angliae pertinet ad judices ecclesiasticos . . . secus tamen est de jure communi 3.'

Thus, while the law of succession to real property fell under the influence of the Courts of Common Law, the law of succession to personal property fell under the influence of the Ecclesiastical Courts. We shall see when we come to treat of wills and of intestate succession that this division of jurisdiction has left numerous traces in substantive law.

But the Ecclesiastical Courts did not succeed in maintaining exclusively all their jurisdiction. There arose a new generation of common law judges who looked with no favourable eye upon the Ecclesiastical Courts. The personal representative was allowed rights of action in the King's Courts, and was prohibited from going elsewhere; indeed, the extensive use made of the writ of prohibition seriously diminished the powers of the Ecclesiastical Courts.

At a later period still further encroachments were made by

1 Select Pleas in Manorial Courts (Selden Society), Introd., pp. 1.-lx.

2 P. and M. i. pp. 111-113, 139.

3

3. 13, p. 170: sub voc. 'insinuationem.'-De jure communi, sc. ecclesiae, i. e. the canon law.

4 P. and M. ii. p. 353.

the Courts of Equity'. They furnished a third jurisdiction which has had as great an effect upon the law of succession as either the Common Law Courts or the Ecclesiastical Courts. The policy of the common lawyers had rendered the Ecclesiastical Courts ineffective; and this was the excuse and justification for the interference of Courts of Equity. For the Courts of Equity had by James I's reign succeeded in defeating the attempts made by the Common Law Courts to treat them as they had treated the Ecclesiastical Courts 2. They were thus able to offer more complete remedies 3; and, in fact, succeeded in taking from the ecclesiastical jurisdiction much of what the common lawyers had left. They followed,. it is true, the common law, and sometimes the ecclesiastical law, when their rules were applicable. But it was the rules which were evolved by the Courts of Equity which have given us the law which relates to the powers, rights and duties of the personal representative; and it was their procedure which made it possible distinctly to conceive and to adjust the complicated equities which arise in the administration of an estate. Jurisdiction over probate of wills and grants of administration was practically the only effective jurisdiction retained by the Ecclesiastical Courts when they were abolished in 1857. The Court of Probate succeeded to their jurisdiction; but it was deprived of jurisdiction over legacies and suits for the distribution of residues, which, till then, the Ecclesiastical Courts might in theory have

1 Select Cases in Chancery (Selden Society), nos. 104, 116. The chancellor interferes because there is no action at common law (see no. 140: a case which involved the taking of accounts). The Common Law Courts had no machinery for business of this kind. As we shall see, the action of the Common Law Courts made it impossible for the Ecclesiastical Courts to exercise this jurisdiction effectively (infra, pp. 132, 133).

2 Kerly, History of Equity, chap. vii.

3 Cf. Matthews v. Newby, 1 Vern. 133. Lord Hardwicke said that the Ecclesiastical Court had 'but a lame jurisdiction.' That jurisdiction was sometimes quite disregarded. Bissell v. Axtell, 2 Vern. 47. The chancellor orders a fresh account to be taken of the intestate's personal estate, though the Ecclesiastical Court had already taken one.