vision in regard to the succession of a free man in case of intestacy, contained in that Charter, is not stated in either of the Charters of Henry.

Bracton, who wrote in the reign of the last-mentioned king, gives it as the general law of the realm of England, that after debts and other necessary charges were deducted, the whole residue of the personal estate of a person deceased should be divided into three parts, of which the children, if there were any, should have one part; the wife, if she survived, another part; and that the third part should be at the disposal of the deceased. If there were no children, one moiety went to the deceased, the other was reserved to the wife; if no wife, but only children survived, then the deceased was to have one moiety, and the children were to have the other; if a person died without wife or children, the whole was at the disposal of the deceased. (1)

In the time of Bracton also, in making a will, it was necessary for the testator to acknowledge his lord "de “meliori re quam habuerit, et postea ecclesiam de alia me"liori." He might then bequeath his effects (as far as they were at his disposal by will) to his relations, and to such other persons as he should see best.

The same rules are given by the author of Fleta, almost in the same words; and he says, as Bracton had said before, that this was the law, unless there were any local custom to the contrary. (m)

Thus, the common law of England, regulated by the Great Charters of John and of Henry III., appears to have been, that a widow and children (where such existed) were entitled in their own right to certain parts of the personal estate, and that the father had only the power of disposing

(1) Bracton, lib. 2. 60, 61.

(m) Fleta, lib. 2. c. 57.

by will of that portion of it which was not affected by the rights of his wife and children. (n)

But these lay authorities alone do not give a clear view of what were then the rules of the law of England, in regard to personal succession. At this period, all questions relating to wills and testaments, and to the disposition of the personal estates of intestates, had become matter of ecclesiastical jurisdiction in England. Formerly the jurisdiction, in matters of this kind, appears to have been part of the royal prerogative; and it was granted as a franchise to many lords of manors and others, some of whom, to this day, have a prescriptive right to the granting of probates of wills, and administrations of the estates of intestates, in their own courts baron, or other courts. (0)

But it was chiefly conferred upon, or assumed by, the bishops, in their respective dioceses, who were thence termed the ordinaries, as if the other judges were in this behalf incompetent or extraordinary. (p)

In that system of laws, which had been compiled, and promulgated to the western Christian world, under the influence of successive Popes, and which was known under the title of the Canon Law, all matters regarding personal succession were specially regulated. In England the authority of this body of laws, however, was at all times much restricted. Coke lays it down as a conclusion, and for this he cites the authority of Glanvil, that no foreign

(n) Sir Edward Coke, I am aware, states that this reasonable partition never was a rule of the common law (2 Inst. on Magna Carta, p. 32.); but all the early authorities as quoted above are against him; and Blackstone has no doubt upon this subject: he shows that Sir Edward Coke had misapprehended the meaning of a passage in Bracton. (2 Bla. Com. 493.)

(0) 2 Bla. Com. 494. Report to His Majesty of the Commissioners on Ecclesiastical Courts, 1832, p. 24.

(p) Swinburne, 684.

canon or constitution made by authority of the Popes, was binding in England, if it was contra jus et consuetudinem Anglia. (q)

We have, therefore, to look for the actual state of the law, less to the general rules of the canon law, upon this subject, than to those particular rules which were made by ecclesiastical persons of competent authority in England at this period. (r)

In the legatine Constitutions of Otho and Othobon, made in the English national councils, in the thirteenth century (s); and in the Constitutions of the archbishops of Canterbury, made in their provincial synods, as collected by Lyndwood (t), we see in contemporary authorities many of those canons of the ecclesiastical law in regard to personal succession, which prevailed in England in those days. The clergy not only laid down rules which were to be binding in all matters in regard to the probates of wills,

(q) 2 Inst. (on the Statute of Merton) 97.

(r) Blackstone, in his Commentaries, notices a gloss of Pope Innocent IV. (in Decretal. lib. 5. t. 3. c. 42.), as laying it down [for established canon law, about the middle of the 13th century, that in Britain a third part of the goods of intestates was to be dispensed for the use of the church and of the poor. Though the name of Blackstone is never to be mentioned but with respect, it is proper to state, that the words of this gloss are not very correctly given by him. Innocent, alluding to customs in various places, which, if existing, were to be enforced, says, "ut sicut in Venetäs solvitur in morte decima mobilium, "in Britannia tertia, in opus ecclesiæ et pauperum dispensanda." But he does not apply this to cases of intestacy only, but to a case of death. Such a rule is not alluded to in any of the English constitutions that I have seen.

(s) Constitutiones legatinæ D. Othonis et D. Othoboni Cardinalium, &c. Cum annotat. Joannis de Athon. Oxon. 1679. Othobon was afterwards Pope, by the name of Adrian V.

(t) Lyndwood's Provinciale, Oxon. 1679. These were constitutions of the province of Canterbury, but were received by the province of York, in convocation, in the year 1463. (1 Burn's Eccles. Law, pref, p. 27.)

but took upon themselves the entire disposition of the personal estates of those who died intestate. A person dying intestate was considered as one whom death had arrested, before he had had time to provide by his last will for the health of his soul. The church, therefore, interposed mercifully towards the deceased in thus disposing of his personal estate, "cum res temporales quæ illius fuerint, per distributionem in pios usus ipsum in juvando sequuntur, et coram cœlesti Judice pro ipso propitiabiliter "intercedunt." (u)

66

66

Many of the Constitutions thus made were of a very equitable nature (x); and Othobon appears to have given his sanction to that chapter of the Charter of John, which related to the distribution of the estates of intestates after payment of their debts. (y) But this was lost sight of;

(u) Constit. Othoboni, 121. It is an inquiry of some curiosity what the church, in such cases, considered to be pious uses.

In the gloss of John of Athon on this constitution, he describes them as being to perform the seven corporal and seven spiritual alms, of which he gives the examples.

Archbishop Stratford, in a provincial constitution made about the year 1342, given by Lyndwood (p. 180.), considers a disposition of the goods of intestates, after payment of debts," decedentium consanguineis, servitoribus, propinquis seu aliis," to be pious uses, and for the good of their souls.

Lyndwood, in a gloss upon this constitution, describes pious uses as including generally every thing which related to the good of the soul of the deceased; but he mentions a number of other matters (some of them of a public secular nature), which had also been included under this description of pious uses.

(x) John de Athon, "De bonis intestatorum." Lyndwood, "De 'testamentis," passim. These legatine and provincial constitutions, guarded as they were with the pains of ecclesiastical censures (Gladium Ecclesia), were then probably not of less weight than the charters of our kings.

(y) The conclusion of the constitution of Othobon, " De bonis intestatorum" (122.) is in these words: "Proinde super bonis decedentium "ab intestato provisionem quæ olim a prælatis regni Angliæ cum approba

great abuses were introduced, and the clergy took to themselves the personal estates of intestates, without payment of their debts or other charges, and applied them as they saw fit, without any responsibility but to God and themselves.

He says,

66

There is no reason to doubt that great abuses prevailed in England in this branch of the law during a long period. A learned judge in the reign of Elizabeth, according to Plowden, gives this statement in regard to these abuses: — "Before the statute of Westminster 2. c. 19., "if a man died intestate, the ordinary should have had his goods, to dispose of in pios usus. For it was to be pre"sumed that the ordinary, who had the care of his soul "in his lifetime, would be the fittest to have the care and disposal of his goods in pios usus after his death; and, "therefore, the ordinary might seize them, and keep them "without waste; and he might have given, or aliened "them, or have otherwise disposed of them at his pleasure,

66

"tione regis et baronum dicitur emanasse, firmiter approbantes dis"tricte inhibemus, ne prælati vel alii quicunque bona intestatorum "hujusmodi quocunque modo recipiant, vel occupent, contra pro"visionem prædictam."

John de Athon, in his gloss upon this constitution, applies it to the statute of Gloucester, in the 6th of Edward I., and the statute of Westminster the second, in the 13th of the same king; but the constitution was made in 1268, in the 52d of Henry III. Bishop Gibson in his Codex, and Burn, notice this mistake; and Burn applies the reference in this Constitution to the great charter of Henry, (4 Burn's Eccles. Law, 323.) It has been already noticed, (supra, p. 7.) that it is only in the great charter of John that any thing is said in regard to the goods of intestates. It is amusing to remark how Othobon, a foreign churchman, describes the making of this great charter of our liberties, as made by the prelates of the realm of England, with the "approbation of the King and the barons." On this John of Athon gravely observes: "Nota Discretam et ordinatam provisionem in "parliamento regni debere primarie incipere a prælatis, maxime super " contingentibus opera pietatis."