These instances of the ordinary finding it incumbent upon him to take security, where he only confirmed a title already conferred by the testator, clearly evince what was his practice in cases where, in the exercise of his own authority, he actually created a title in another, for whose acts he became responsible at law. In commenting upon the portion distributable by the ordinary, and the supposed effect which the statute had in controlling his disposition, Sir Samuel Toller, who has copied the opinions of the older lawyers in nearly their own language, says: that in the previous age, "He (i. e. the ordinary) converted to his own use under the name of church and poor, the whole of such (i. e. an intestate's) property without even paying the deceased's debts. To redress such palpable injustice, the statute of Westminster 2, or the 13 Edw. I. c. 19, was passed, by which it was enacted that the ordinary is bound to pay the debts of the intestate so far as his goods will extend, &c." He then adds, "Although the ordinary were now become liable to the debts of the intestate, yet the residue, after payment of debts, continued in his hands to be applied to whatever purposes his conscience might approve." A very learned and celebrated modern civilian has the following notice on the same subject.* "In the early periods of our history the ordinary had, by common law, the absolute disposal of the personal property of all intestates; and, under the pretext of applying their goods to religious purposes, possessed himself of them, not only in cases where the deceased left a widow and children or other near relations, but in defiance also of the just claims of the creditors. On this footing the law continued under the Norman kings and the first sovereigns of the line of Plantagenet; but when the free spirit of our constitution, which had been long labouring under the pressure of the feudal institutions and the shackles of papal superstition, commenced those struggles which ultimately led to its emancipation, the abuses practised by the ordinary in the administration of intestates' estates became in their turn subjected to correction and control. *The 13 Edw. I. c. 19, (commonly called the statute of Westminster) made the estates of intes Dr. Phillimore's Rep. vol. i, p. 124. tates liable to the payment of their just debts." These two quotations embody the opinions commonly held upon the subject of the ecclesiastical jurisdiction; and, if they were true, would exhibit it by no means in a favourable light. They represent it as taking its rise The from an infraction of the constitutional right of the kingdom, and as rapidly acquiring strength from a shameless system of plunder exercised against private property in a manner unexampled even in those times of secular outrage and extortion. scene of all this is laid in England, and the English clergy are paraded as the actors. But there is no historical narrative to justify those authors in laying so heavy a charge against the English church; and neither the letter nor the spirit of the statute affords ground for such a supposition, nor hints the least suspicion that it had ever been the fact, or that the design and view of the statute were directed to its future suppression. The assertion which both these authors agree in, viz. that the church, at an early period of English history, was accustomed to seize the whole effects of every intestate, does not require refutation; the origin of the mistake has been already sufficiently shewn. The only question that remains is, in what manner the portio defuncti or distributable portion was directed to be applied by the ordinary, which will at the same time explain the precise meaning of the disposition of property in pios usus. We have already seen that the portio defuncti varied with the difference of circumstances, and was sometimes a third or a moiety, and at others comprised the entirety of the intestate's personal estate. The judicial method of disposing of it was as follows: if necessary, the partes rationabiles were deducted, and then recourse was had to the ordinary for the purpose of obtaining his directions respecting the manner and proportions in which the balance should be disposed of. The ordinary accordingly allotted portions of this balance amongst the wife and children, if the deceased left any such, but if not, amongst his nearest of kin, and finally directed the administrator to bestow a small and inconsiderable sum in purely charitable and religious purposes, for the benefit of the deceased's soul. The portio defuncti therefore in one case was a section of the effects distributable amongst the same parties who were entitled to reasonable shares, and in the other extended to the whole of the intestate's property. This disposition and the payment of debts were numbered amongst the pious uses to which the ordinary applied the estate which came under his control; and it was in order to effectuate such distribution, as well as to indemnify himself against the claims of unsatisfied creditors, that the ordinary took bond of the intended administrator.t The ordinary's power of directing and compelling a distribution became, in the course of the period succeeding the Reformation, almost entirely extinct through the enmity of the judges at Westminster, who refused to enforce ecclesiastical bonds against the administrator for a distribution, thus leaving the remaining next of kin entirely at his mercy. This evil was the more alarming inasmuch as the ancient division of the intestate's property into the partes rationabiles and portio defuncti was no longer the general law of England, but existed only as the particular custom of certain districts. By these means the next of kin who was expeditious or fortunate enough to obtain letters of administration, be came possessed of the whole of the deceased's property, and, though nominally bound to the ordinary to distribute the effects as he should direct, could not be compelled to part with a single shilling, except in the payment of debts, although there were numbers of kinsmen in the same degree of consanguinity as himself. It was the proceeding on the part of the common law judges which occasioned the enactment of the celebrated statute of distribution. Where the old division of property remained, as in the province of York, the administrator till a later period applied the "dead man's portion," or portio defuncti, to his own personal use.§ The distribution of a certain portion of property to pious uses in the more precise and restricted sense of charity and alms deeds became obsolete about the same time.|| The next remark of our author that the ordinary became obliged to pay the debts of the deceased owes its origin to the same mistake as the former assertion, from which it is in fact deducible. The act itself says nothing about the ordinary paying debts as if he himself interfered in the actual administration of the intestate's estate; it only says that the ordinary should be thenceforth responsible for the debts of the deceased-a liability in the eye of the law to which he is * The constitution of Boniface affords a clear understanding on this point (vide supra). "Nec in usus uxorum suarum, liberorum suorum, vel parentum, vel aliter per dispositionem ordinariorum," &c. These words enumerate the three cases where a man left a wife and children, other relatives only, or died without any. For the word aliter refers to the last. Ducange, in reciting this constitution, has omitted the whole of the above clause, and upon this omission (at best careless) he grounded a tirade against the church, viz. about their paying the intestate's debts, and keeping all the rest of the effects to compensate them for their trouble. See also the articuli and the gravamina for the same expressions. The concluding words of the bond, which is still used in its ancient form in all cases to which the statutory caution does not apply, are as follows: "And lastly, do at all times hereafter clearly acquit, discharge, and save harmless, the within named Lord Archbishop of Canterbury, the said judge and all other officers of the said court against all persons having, or pretending to have, any right, title, or interest unto the said goods, chattels, and credits of the said deceased. Then this obligation," &c. Stat. 22 and 23 Car. 2, c. 10. Blackstone's Comment. book ii. c. 32. § It was the exaction of what the next of kin considered too great a share of the third that is meant by the complaint of Fleta that the ordinaries "nullam vel saltem indebitam distributionem faciunt." (lib. 2, c. 57, p. 124.) In Elizabeth's days Swinburne says, "Of this distribution of the residue (in pios usus) there is but small use in these days, as well for that the residue is commonly left to the executors, as also for that the executors are afraid that some unknown debts due by the testator should afterwards arise, and so the executor be compelled to pay same out of his own purse." (sixth part, s. 20, p. 235, edit. Lond. 1590.) exposed even at the present day; and to meet which the ordinary, formerly, (as now) provided himself with security from the administrator. I shall pass over the historical dicta of Dr. Phillimore without remark, and continue my view of the progress of this branch of the Ecclesiastical Jurisdiction. At a period of nearly a century from the date of Magna Charta the lords of manors were still disinclined to yield their old claim up as lost. So late as 1342 Archbishop Stratford was compelled, in consequence of their strenuous opposition to his ordinaries, to pronounce that all persons so offending had, ipso facto, incurred the awful sentence of the greater excommunication. His words stating the abuse are as follows, viz. "Quidam etiam domini temporales et eorum ballivi bona decedentium ab intestato in suis districtibus ad ipsos dominos pretendentes fore quamvis erroneo devoluta, ne per ordinarios bona hujusmodi pro debitorum solutione sic decedentium ac in alios pios usus pro ipsorum animarum salute convertantur utiliter, prout consensu regio et magnatum regni Angliæ tanquam pro jure ecclesiasticoque libertate ab olim extitit ordinatum, impediunt in derogationem ecclesiasticæ libertatis jurisque et jurisdictionis ecclesiasticæ impedimentum et læsionem enormem.* i. e. Even some temporal lords and their bailiffs, pretending that the goods of persons dying intestate in their districts (i. e. manors or sokes) have devolved to the lords, although erroneously, prevent the goods under these circumstances of persons so dying from being usefully applied towards the payment of their debts, and in other pious uses, for their soul's health, as was of old ordained by the consent of the king, and of the barons and great men of the kingdom of England, as for a right and liberty of the Church, to the impairing of such the right and liberty of the Church, and to the great hindrance and damage of the jurisdiction of the same. But the Ecclesiastical Jurisdiction was soon to be fixed on a solid basis, superior to all future attacks. About sixteen years after the last mentioned constitution was passed at Westminster the celebrated 31 Edw. III. (1357) a statute which has been commonly, though incorrectly, reputed to be the origin of executors-dative or administrators, as they now exist. The words of the Act (c. 11), are "Item acorde est et assentu qe en cas ou homme devie intestat, les ordinairs facent deputer de plus proscheins et plus loialx amis du mort intestat, pur administrer ses biens, les queux deputez eient accion a demander et recoverer come executours les dettes dues au dit mort intestat en la Court le Roi pur administrer, et despendre pur lalme du mort et respoignent auxint en la Court le Roi, as autres as queux le dit mort estoit tenuz et obligez en mesme la maniere come executours respondrent et soient accountables as ordinairs si avant come executours sont en cas de testament, si bien de temps passe come de temps a venir:"i.e. It is accorded and assented that in case where a man dieth intestate, the ordinaries shall cause to be deputed certain of the next and most lawful (or honest) friends of the intestate deceased to administer his goods, which deputies shall have an action in the King's Court, to demand and recover as executors the debts due to the said intestate deceased, to administer and dispend for the soul of the deceased, and shall answer likewise in the King's Court to others to whom the deceased was holden and bound in the same manner as executors shall answer. And they shall be accountable to the ordinaries as executors are in case of testament, as well for the time passed as the time to come. The supposition that executorsdative were not in existence before the passing of this Act, or that the ordinary acted by any other administrator than the next of kin, is abundantly disproved by the clause in Magna Charter before quoted, where the expressions used are to the effect that the intestate's property shall be distributed, " per manus propinquorum suorum et amicorum suorum per vi * Lynd. lib. 3. tit. 28. This allusion of the Archbishop to the great charter is understood by Blackstone to refer to the charter of Henry 1. Comment. vol. iii. book 3, c. 7. sum ecclesiæ." It appears by this, that the ordinary was from the beginning directed to clothe with the character and power of executor dativus one of the intestate's nearest relatives; who was under that authority to distribute the effects amongst the other members of the family in such manner and proportion as the church, following the system of the civil law, should regulate and direct.* It is equally improbable that the ordinary could have acted in the administration of an intestate's estate by an official administrator, or one of his own dependents, as, besides the temptation this supposed practice would have afforded to the officers of his registry for the grossest embezzlement, in a manner totally insupportable through so many generations, the simple machinery and resources possessed by the chancellor of a bishop's consistory would have been in every respect insufficient to effect the execution of trusts as great and numerous perhaps as those under which the modern courts of equity now groan. No authority can be adduced in favour of the position. It rests solely on the probability of facts, which are not only improbable, but, from all that is known of the general history of the times, entirely unprecedented throughout the whole continent of Europe, and as far as we may judge from the experience of latter ages too absurd to have ever existed. The intention of the Act was directed to the following purposes. Previously to its passing, an action in the goods of an intestate was capable of being brought only in the name of, or against, the ordinary himself. From this burthen the Act was proposed to relieve him, by giving to the executor dative a persona standi in the King's Court, and the power of instituting, or answering in his own name and character, all actions respecting the intestate's estate. In order, however, that the terms of the enactment, by thus rendering him more independent of his constituents, might not be construed to extend to the abolition of the ordinary's right of calling upon his delegate to render an account of his administration, a special clause was inserted, as has been seen, providing that, as well for the time past as for the future, the ordinary's deputies should be accountable to him in the accustomed manner. The present sketch will conclude with this Act of Parliament. The helping hand of the law having thus at length fixed the power of the ordinary on a firm foundation, it never again became the subject of dispute; but, from the epoch of that statute, the ordinary was enabled to extend and perfect his system through ages of undisturbed tranquillity. The secular authorities no longer contended with the church for the possession of this privilege, and the primacies of Islip and Langham, of Sudbury and Arundell, passed quietly over without any one of those prelates finding himself compelled to resort to the enactment of a new constitution or canon in his defence, or to denounce the censures of the church against a profane aggressor. This Ecclesiastical Jurisdiction, of which we have been treating, though, it has since the Reformation become uncongenial to the prejudices of the people, and, from the circumscribed powers of the courts in which it is exercised, has been in many instances found to be insufficient, either for the *So in the general letter, issued in 1250, by the English bishops, after receipt of Pope Innocent's brief in favour of the Crusade, under Richard, Earl of Cornwall. "De bonis vero cruce signatorum qui decedunt sine testamento, quantum ad portionem eos contingentem ordinetur per amicos defunctorum et fratres deputatos ibidem ad prædicandum ut deputetur in subsidium Terræ Sanctæ quantum poterit sine scandalo." Matth. Paris, Additament. p. 1141. +Viz. from 1362 to 1415, the date of Henry Chycheley's translation. With his con. stitutions the provinciale of Lyndewode terminates. It is a curious fact that whilst the nation has always exclaimed against the Ecclesiastical Courts on account of their being unable to enforce their own decrees, except with the assistance of the Court of Chancery; yet the Legislature, which provides a remedy for all other grievances, has always strenuously resisted the measures which have been at times proposed for the purpose of remedying that evil, and thereby securing the speedy relief of suitors in these courts. complete or speedy fulfilment of the ends of justice, remains in existence at this day, affording amongst others a remarkable instance of the stability of the institutions of this country, while a corresponding establishment in France could only maintain itself for a period less than two centuries. I am, &c. H. C. C. ON THE EARLY POPULATION OF THE BRITISH ISLES. MR. URBAN, March 18. I MENTIONED in my letter of January a few points on which I did not feel quite satisfied respecting the conclusions arrived at by Sir William Betham in his work on the "Gael and the Cymbri." On one of these I have to apologize to Sir William for having construed his words too literally by a hasty reference to his work; I allude to the circumstance of the Welsh being the descendants of the Picts. Still, I should be sorry if I had nothing beyond a mere apology to offer in return for my seeming inadvertency. In page 412 of Sir William's work, I read the following passage :-"The Picts disappear from history altogether, with the Roman province, and are apparently as much lost as the ten tribes of Israel. What became of them? and who are the Welsh? They disappeared at the very moment the Welsh seem to have obtained possession of Wales. The Welsh say they came from Scotland, &c." Now I am convinced that Sir William himself will admit that I could draw no other inference from the above passage than that the Picts who disappeared in Scotland obtained possession of Wales at the same time. I have since, however, perused the whole chapter on the Cimbri, and I find that "detachments of the Picts," had conquered the west of South Britain previous to their final expulsion from Scotland. There still remains a very serious obstacle to be removed. What are we to do with those Britons whom the Saxons displaced from the eastern and more fertile districts of what is now called England? We must, in the nature of things, suppose them to have been far more numerous than the primitive Pictish colony of Wales, and that when expelled from their own lands they would naturally encroach upon their weaker neighbours. Sir William, in your March number, p. 268, seems to speak of them as a "Roman colony," but it appears to me that Britain was all along governed by the Romans much the same as we govern India; that is, the natives allowed the peaceful possession of their lands on paying an annual tribute, or a certain proportion of revenue, and were merely overawed, and I may add protected, by the garrisons of Roman soldiers stationed throughout the country. were In fact, under Caracalla, the Britons were admitted to all the rights and privileges of Roman citizens; and the security which they thus enjoyed must have contributed to increase their number far beyond that of the more northern tribes who prided themselves on their freedom from the yoke of Rome. During the four centuries that Britain was under the Romans we have no authority that the natives were deprived of their lands, and the country colonized by the conquerors. Hence it does not follow that the language of the people at large was greatly affected by the presence of the Roman troops, whose tongues were various and not necessarily Latin, as they were collected from many distinct and remote provinces of the then extensive empire. The Latin tongue, I admit, would be known to all the higher classes of the natives, and generally among those who held or expected situations, civil and military, under the Roman govern ment. Under these circumstances it seems The date of the testamentary jurisdiction being vested in the clergy of France, is no doubt about the time at which the same privilege was granted to that body in Normandy. On the 18th Jan. 1358, 18th November and Dec. 1372, 14th Nov. 1376, and 15 Dec. 1377, it was decided in the French Parliament, that the King by right and usage had cognizance of the last wills of all persons dying in his kingdom. (Ducange sub voce Curia Christianitatis.) GENT. MAG. VOL. XI. 3 Q |