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ye Papists, (lest ye omitting of so small a matter generally used, might make me be suspected of my religion, and bring me into dangers of great consequence), did now in like sort touch this Poor Men's Box, mistaking it for the font of holy water: I say he did soon perceive my error, and taking me by the hand, advised me hereafter to eschew these ill customs, which were hardly forgotten."*

The next quotation is from the first part of Sir John Oldcastle, A. iii. sc. 3. (1600.)

"Sir J. Canst thou blame me, Doll? thou art my lands, my goods, my jewells, my wealth, my purse; none walks within forty miles of London,but a' plies thee as truly as the parish does the Poor Man's Box."

The following is from the Extravagant Shepherd, &c. an Anti-romance, 1654, page 208, which speaks of the marriage of a tall woman with a little

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the following curious extract from
Theodore Basille's 66
Right Pathway
unto Prayer," black letter, 1543. It
occurs at the beginning of chapter 8.

"Vnto God. Note that he sayth, unto God, not unto Jupiter, Apollo, Mercurius, Bacchus, Juno, Minerva, Pallas, Venus, and such other gods or goddesses, yea, rather dyvels, as the Psalmograph sayth, the gods of the Heythen are dyvelles,' unto whom the Ethnyckes and Gentiles dyd fly in theyr prayer for succoure; nor unto Baal, Astaroth, Moloch, the Quene of Heaven, and such other

idolles, as the olde idolaters of the Jews worshipped and cryed unto for helpe; no nor yet as oure new idolaters were wont to do, as unto Luke for the oxe, unto Job for the poxe, unto Anthony for the pyg, unto Loye for the horse, unto Apoline for the tothake, unto Roche for the pestilence, unto Syth for thynges lost, unto Gertrude for the rattonnes and myse, unto Blase for the ague, unto Agasse for the fyre, unto Barbara for the thonder, unto Christopher for continual helth, unto Annes for a husband, unto Margarete for women with chylde, unto Katherine for learnyng, unto Crispyne and Crispinian for shoes making, unto Cosme and Damiane for phisicke, unto Clement for bruing beere, and suche other innumerable ;-but unto God. For Prayer is a lyftyng up of a pure mind unto God," &c. Yours, &c. I. A. R.

ON THE TESTAMENTARY JURISDICTION OF THE
ECCLESIASTICAL COURTS.†

No. II. THE ARCHBISHOP'S PREROGATIVE.

MR. URBAN, HAVING, in a previous number of your esteemed Periodical, traced the origin and establishment of the Testamentary Jurisdiction of the English Ecclesiastical Courts, I now propose to enumerate and describe the several channels into which the new spiritual privilege was afterwards derived, in conformity with the general system of Ecclesiastical Law.

We have seen that the power of administering the personal estate of an intestate was by Magna Charta conferred upon the Church. But that in

strument did not select any particular ordinary by whom the right was to be exclusively enjoyed, no order of the hierarchy being alluded to therein. The charter must, therefore, be construed to have vested that right in all the existing tribunals authorised by the Church, and to have left to the ecclesiastical authorities, in case of any contest of jurisdictions, a discretionary power of defining their peculiar limits.

In order, therefore, to ascertain to what persons it was proposed to confide this important trust, we must first see who were the dignitaries exercis

* There are still remains of a stone pedestal in the porch of South-Weald, Essex. (See a Plate in Britton's Work.)

† Continued from our April Number, p. 363.

ing the jurisdiction previously belonging to the Church.* To begin with the lowest order in the hierarchy, viz. the Archdeacon. He held pleas of criminal matters, and imposed public penance upon lay or clerical offenders. The cognizance of testamentary suits appears also to have been conceded to him. The Deans and Chapters of cathedral churches had a similar jurisdiction, including, also, the exclusive privilege of determining all matrimonial disputes arising within their precinct. But the ordinary, from whom the authority of the former was entirely borrowed, was the Bishop. The corrective jurisdiction belonged to him by the divine right of his apostolic office, and such other authority as he was possessed of had been the gradually accumulated gift of the princes of Europe.

The Archbishop was of course superior to all. Being legate of the holy see, as well as metropolitan, he enjoyed not only an appellate jurisdiction in all cases previously laid before the diocesan, but might proceed prima instantia in any matter which fell within the cognizance of the Church. As metropolitan or legate, he was concurrent ordinary with every bishop in his diocese. This authority was not confined to the clergy, but extended over the whole body of the laity, who were as immediately subject to the Archbishop as they were to their diocesan or his archdeacon. The extraordinary power of the legation amply supplied any deficiency in the jus metropoliticum.‡

Such, then, being the constitution of the Church, each of the beforementioned ordinaries fell within the scope and meaning of the Charter; for none could pretend that a preference was

shown to him under the very general terms of that instrument.

But the Bishops were not inclined to put so liberal a construction upon the words of the Charter. They relied upon foreign precedent, and upon the Continent both the civil and canon laws concurred in declaring that probate of wills was the right of the episcopal order alone.§ The English Bishops, therefore, contended that this new concession to the Church in England was to be regulated by those laws, and consequently, that it belonged to them alone; or at least conjointly with their inferiors the Archdeacons and Deans. So far as regards the metropolitan, they asserted an uncompromising monopoly.

But during the period immediately following the origin of this privilege, the Metropolitan would appear to have been in no degree solicitous to advance his title to a participation in it. Of his own option he seems never to have attempted to claim a concurrent or coordinate jurisdiction with the suffragans of his province.

After some time, however, it became apparent that there were cases in which the system of probate from each diocesan was productive of many and serious inconveniences. For example, whenever a person left effects within any dioceses besides that in which he died, his executors, or his next of kin (for the case would be the same), were compelled to extract the necessary probate, or letter of administration, in each separate jurisdiction. The estate of the deceased was consequently exposed to enormous detriment; and instances would occur where the property might be wholly exhausted in the mere preparatory expenses of probate, and the creditors

Ayliffe's Parergon Jur. Anglic. p. 95. †The Norman Bishops were the first in England who invested the Archdeacon with jurisdiction. The Archdeaconry does not occur as a division of the diocese in the Anglo-Saxon times.

Since 1125, the Archbishop of Canterbury for the time being had been legatus natus of the Roman see. This dignity was conferred in that year by Honorius the Second, upon William Archbishop of Canterbury and his successors for ever. (Cotton MSS. Galba, E. III.) The only reservation in a papal grant of this kind was the faculty of deposing bishops. The power was otherwise as general as the pope's himself. (Decret. Greg. 9, 1. c. 3, de officio legati. "Sicut quis in provincia sua vices nostras gerere comprobatur.") See also the gloss on that portion of the text.

§ Decrétal Greg. XI. 3. c. 26, pp. 17 and 19, and Cod. Justinian. L. Nulli si quis ad decl. C. De epise. et cler.

and legatees by those means be defrauded of their just and equitable claims.*

The system of probate by the episcopal ordinary unavoidably involved this inconvenience. It became, therefore, an urgent and imperative necessity that some remedy should be applied. The public could not long bear with patience, that so large a proportion of a deceased's estate should be consumed in nothing more than the expenses of obtaining the ordinary's seal.

Pressing applications for relief from legatees and creditors, distressed by the insufficiency of an estate which had suffered in this manner, were made to the Archbishop from all quarters. They urged him to interpose his metropolitical authority, and himself assume the administration of the deceased's estate.

His right even, as metropolitan, to interfere in the peculiar jurisdiction of the suffragan was admitted by the canon law on certain occasions, and this could be fairly shown to be one of those cases. The negligence, or rather the inability of the diocesan, to afford his subject laity their full measure of justice, was a sufficient justification in law for a direct interference of the Archbishop.† He had for some time forborne the exertion of his right as metropolitan, out of con

sideration for the privileges of his suffragans, or perhaps a fear to encroach upon what they had hitherto, though erroneously, considered their peculiar prerogative.

The exact epoch when the Archbishop first interfered, is not very clear, but we may approximate to it tolerably well. It is probable that the prerogative had been asserted, and the Archbishop had lent a helping hand to the suitors in his province before the middle of the reign of Henry the Third, and the energy of Boniface might justify us in giving him credit for so happy a provision. It is certain that the Archbishop found no friends to the exertion of this right amongst the Bishops, who firmly refused to recognize it as a fair exercise of the jus metropoliticum; and this pretension of the Archbishop became the signal for a contest between him and his suffragans, which continued for nearly a century.

The argument put forward by the Bishops on this occasion, that the granting of probates or letters of administration belonged to them as the ordinarii loci, was admitted on the part of the Archbishop; but he contended that he was local ordinary throughout the whole of his provinces having, as metropolitan, a co-extensive authority with each diocesan. He also declared that his reason for this

* The origin and objects of the prerogative are clearly explained in the MS. register of Robert of Winchelsey:

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"Memorandum, quod cognitio et examinacio ut ultima voluntas defuncti debite demandetur, ne executores defuncti qui beneficia vel bona temporalia vel spiritualia in diversis et pluribus dioecesibus dum vixit obtinebat, sumptibus in singulis episcopatibus per plures circuitus fatigati, defuncti substantiam in circuitu hujusmodi expendant in parte plurima vel consumant, testamentorum execucio retardetur, defuncti revelacio differatur, quæ foret per actus suæ voluntati ultimæ consonos promovenda, et propter alias causas racionabiles, ad dominum Cantuariensem archiepiscopum qui pro tempore foret, notorie pertinere noscuntur."

† Dr. Ayliffe (Par. Jur. Anglic.) following the authority of the decretals of Pope Gregory the Ninth, (lib. x. dist. 1, c. 31, par. 11, et gloss. ib.) says, "though an Archbishop has this jurisdiction (i. e. excommunication and interdict,) over his own suffragans, yet he has not jurisdiction over the persons and estates of men dwelling and existing in the diocese of his suffragan bishop, unless it be in some particular cases; viz. when the suffragan is negligent, as aforesaid, after three admonitions." What should constitute negligence, was of course in the breast of the Archbishop. Therefore, this passage itself, on closer inspection, would seem to establish the pretensions of the metropolitan. Negligence and incapacity lead to similar results; and where property existed in several dioceses, neither diocesan was able to afford complete justice. The necessity of an executor to resort to each several ordinary for an accumulative or successive authority, was of itself a gross injustice; and this inability of affording full relief was as palpable an evil as a direct and positive denial of justice, both of which were an acknowledged foundation of the appellate jurisdiction of the metropolitan.

exertion of his prerogative was no ambition of his own, but a just acquiescence in the prayers of his provincial subjects, whose interests demanded that a paramount and central jurisdiction should be established for their relief."

There appears less reason in this opposition of the diocesans to the metropolitan, as a corresponding and strictly analogous scheme of jurisdicdiction was maintained by them, in relation to their inferiors, the Archdeacons and Deans. They claimed to interpose their authority in those cases only where the deceased had personal effects in different archdeaconries or other jurisdictions; otherwise, they admitted the jurisdiction of the inferior judge to be well founded.†

The Archbishop pursued his course in spite of the remonstrances of his diocesans; but in 1268, whilst the contest was still rife, the papal legate Ottoboni arrived in this country, with full powers for reforming the condition and discipline of the English Church. He directed his attention to this matter; and with the view of removing for the future all occasion for dispute on the subject, as regarded the estates of beneficed clergymen, he enacted, that where a testator, during his lifetime, had possessed benefices in divers dioceses, his will should be approved by the Bishop in whose diocese he died.‡

It is clear that this constitution of the legate could not be considered as determining the general question at issue between the metropolitan and his suffragans, and the ecclesiastical lawyers did not attempt to extend its meaning into any constructive application to the case of the laity. This constitution left the question as open as it found it; and the metropolitan was not barred from persevering in the conduct which he had adopted. §

After this constitution, opposition ceased for some time on the part of the Bishops; and we have instances on record of the metropolitical prerogative having been exercised by Archbishop Peccham.

The utmost limit of ecclesiastical prescription, which amounts to forty years only, was now long since elapsed, when John, the Bishop of the extensive diocese of Lincoln, resuscitated the old dispute; and on the 27th of March, 1309, invoked the aid of the Head of the Church by an appeal to Rome.|| The Bishop of Lincoln waited till the restoration of Robert, the Archbishop of Canterbury, to his archiepiscopal functions, before he commenced proceedings in defence of his asserted right. About four years before, that Archbishop was, in consequence of the personal animosity of the King, suspended from the exercise of his office; and his consequent want of favour at both the English and papal courts ap

*Matt. Parker de Antiquitate Britannicæ Ecclesiæ. (Lond. 1729) p. 43, and his authorities, the registers of Morton, i. 208, and of Peccham, fol. 144, 150.

This is still the style of the diocesan court of London, though disused in the other consistories. To found the jurisdiction of the former, its instruments allege that the deceased person, whose estate is under administration, had, "whilst living, and at the time of his death, goods, chattels, and credits, in divers archdeaconries or jurisdictions within the diocese of London, by reason whereof, the proving, approving, and registering the will, and the granting administration of all and singular the goods, chattels, and credits, and also the auditing, allowing, and finally discharging the account thereof, are well known to appertain only and wholly to us (i. e. the Bishop), and not any inferior judge whomsoever, by right, privilege, and prerogative of our Cathedral Church of St. Paul, London, by laudable custom and lawful prescription for time immemorial." "Super

Constitutiones Legatinæ Regionis Anglicanæ, D. Othoboni, tit. 15. approbatione siquidem testamenti ejus qui in diversis diœcesibus beneficia dum viveret obtinebat, approbationem illius episcopi in cujus diœcesi testator decessit, (fidem) volumus adhiberi." The word "fidem" is unnecessary, and is omitted in the rubric.-"Vult enim approbationem episcopi, in cujus diœcesi testator, qui in diversis beneficia obtinuit, decessit, adhiberi."

§ Vide Gloss. of John of Athon on this constitution, and of Lyndewode on the constitution of John Stratford. The latter says, "Sed illa constitutio loquitur tantum in clericis beneficiatis, ut ibi notatur per Johannem de Athona." (Provinciale, tit. 13.) || MS. Register Winchelseye, fol. 31.

GENT. MAG. VOL. XII.

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pears to have instigated the Bishop of Lincoln to take the course which he did.* He could not, perhaps, have commenced proceedings at an earlier date, as, if not useless, it would have been inconvenient to proceed in a matter so intimately concerning the dignity of the primacy, against the mere administrator spiritualium et temporalium, appointed during the suspension of the archbishop.

The parties, being at issue, stated their case as follows: First, the Bishop of Lincoln contended that the proof of wills, the commission of administration of goods, the rendering of the accounts of the executors of persons, who, whilst living, possessed considerable (plura) estate in the city and diocese of Lincoln, besides property in other dioceses or places within the province of Canterbury, wherever they may have died, and the cognizance of suits between creditors and legatees, or other complainants, and the executors of wills, so far as regarded the effects actually existent in his own episcopal city and diocese, appertained to him and his church of Lincoln, both by law and custom.

The Archbishop's case lay in small space. He denied the allegations of his suffragan, throwing upon him the burthen of proving them. This he was by law entitled to do, having now the possessio status and prescription on his side; and standing, as he did, in the character of defendant, he could only be evicted from his prerogative by the most evident proofs of its illegality.

In consequence of the delays of the Roman Consistory, the cause was not determined in the lifetime of Arch

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bishop Robert; and it continued in the same state for some time after his decease. But in 1309 the appellant (the same Bishop of Lincoln) nounced his right of prosecuting the ancient appeal, a compromise having been effected between him and Walter Reynolds, the successor of Winchelseye in the see of Canterbury. The terms of the agreement were as follows, viz. the Bishop of Lincoln and his successors should retain the privileges before enumerated, with a reservation to the Archbishop and his successors of the metropolitical right of calling for and inspecting the accounts rendered to the Bishop in the estates of persons dying under the circumstances before referred to, in order that the former might the more correctly audit all other accounts due to himself of the remaining part of the same estates. At the same time, lest the latter concession might be construed into an entire dereliction of the independence of the diocesan, by seeming to countenance the claim to superiority advanced by the metropolitan, it was expressly provided that the latter should raise no question in regard to such accounts, but that he should pass his approval upon them as a matter of

course.

This compromise was embodied in an indenture of two parts, and the Archbishop, as one of the parties, set his seal to it on the 7th of January, 1319-(1320) at the priory of Huntingdon. It only regarded the diocese of Lincoln, the other diocesans not having offered any ostensible opposition to the right claimed by their metropolitan.†

This agreement with the Bishop of

* Adam Murymuth. He was suspended in 1305, and restored 1308. + The original was recorded in the Archiepiscopal Register, Winchelsey, fol. 7, and is in the following words :

"Noverint universi præsentes literas inspecturi, quod, cum inter piæ memoriæ Dominum Robertum Cantuariensem Archiepiscopum, tocius Angliæ Primatem, ex parte una, et Dominum Johannem Dei gratia Lincolniensem episcopum, ex altera, occasione probacionum, sive insinuacionum, et commissionum administracionis bonorum, necnon redditionum racionum executorum testamentorum eorum qui dum vixerunt plura bona spiritualia sive tem

poralia in civitate et diocesi Lincolniæ necnon et in aliis diocesibus et diocesi provinciæ Cantuariensis, aut in locis aliis ecclesiæ Cantuariensi immediate subjectis, hactenus habuerunt, ubicunque obierint, quas probaciones, insinuaciones, et commissiones, racionum reddiciones, cognitionesque causarum quæ per creditores, vel legatarios, vel quoscunque alios querelantes, contra executores testamentorum hujusmodi, pro bonis præcipue hujusmodi

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