courts (ampliare jurisdictionem), to suppose that the ecclesiastical court might have gradually gained jurisdiction over all personal legacies under colour of such as were given in pios usus. This might have been the first step towards it; but it is most probable, that there was a direct authority for this innovation derived from the canon law. For although the Decretals, where it is set forth as a general law, were not published by Gregory IX. till the 24th year of Henry III, the canon which warrants this point of judicature was much more ancient, and, without doubt, had travelled hither long before the collection of Gregory was made; and the authoritative promulgation by that pope, might give new sanction to a usage which had obtained some time before. The granting administration of intestates' effects by the ordinary, though established on a more solid foundation, the express law of this country, by the charter of king John and confirmed by that of Henry III.2 did not prevail universally. It seems that lords in some places, in maintenance of their former right, still exercised some jurisdicton in the disposition of intestates' goods, in opposition to the authority of the bishops. The power hereby intrusted to the bishops was abused in a very shameful manner; for instead of liable to debts, might come into the hands of ecclesiastics, and it might be convenient that they should administer, and satisfy the debts and the relatives; but they were bound to do so, and then administration was jointly with and under the eye of the next of kin. It might be that in some cases they were dilatory (as administrators usually are), but there could be no doubt of their legal liability to the next of kin. It is said in Fleta (c. 57, De Testamentis, s. 10), "Item si liber homo intestatus decesserit, et subito dominus suus nihil se intromittet de bonis suis, nisi toutum de hoc quod ad ipsum pertinuerit, scilicet, quod habeat suum Heriottum, sed ad ecclesiam et amicos pertinabit executio. [Sed quid ordinarii hujusmodi dona nomine ecclesiæ occupantes, nullam vel saltone indebitam faciunt distributionem, ideo provisum fuit quod hujusmodi ordinarii de debitis defuncti satisfacerent, quatenus bona et facultates sufficerent], nullam enim pænam meretur, quamvis intestatus decedat ; postea verà deduci debent debita aliorum quæ clara sunt et recognita, inter quæ eonnumerari poterunt servitia servientum et stipendia famulorum; dum tamen certa sint, si autem incerta sint, &c." (Selden's Fleta). This passage is to be found word for word in Bracton (p. 16), except the words enclosed in brackets, which are introduced into Selden's Fleta. It is to be noted that Bracton, while mentioning customs to leave something to the lord and the church, distinctly states that the heir is bound to pay the debts, and that no one is bound to give anything to the church: "Et quamvis non teneretur quis aliquid dare ecclesiæ suæ, nomine sepulturæ tamen cum consuetudo illa laudabilis existat, dominus Papa non vult eam infringere, post quam vero quam ecclesiam suam eta recognoverit, deinde parentis et alias personas," &c. (Bracton, 61). Again he states that the representatives are bound to pay the debts, and then comes the above passage. But that ecclesiastics ever could, according to the canon law or any other law, appropriate the assets of the deceased, without first satisfying debts and legal liabilities, including just claims of relatives, is absurd. Neither had the law ever been altered in any way up to this time, nor was it altered after this time, however it may have been on some points aided and enforced, as, for instance, by giving creditors legal remedies against the next of kin administrators At common law the administrators or next of kin had ample legal remedy against the ecclesiastics, or any one withholding the assets; but the law gave no remedy against the administrators or next of kin, so that, as regarded them, it was only a matter of conscience to be enforced in the ecclesiastical courts. Hence the necessity for alteration of the law in that respect, as against administrators. 13 Seld. 1675. * This clause, as before observed, was left out of the Inspeximus, 25 Ed. I., and so is not in the common printed charters. taking order for a due distribution of such goods, when they had once got possession of them, they committed the administration of them to their own use, or the use of their churches, and so defrauded those, to whom, by right of succession, they belonged; and this they did with the pretence of law and conscience on their side, affecting that this disposition of them in pios usus very fully satisfied the requisition of law (a). This practice grew to such a height, as to occasion a constitution in this king's reign, enjoining that they should not dispose of them otherwise than according to the Great Charter, that is, to the next of kin (b); notwithstanding which, the practice still continued, and the right of succession was, by degrees, in a manner altered. It was even stated by the canons, as the law of the land,1 that a third part of intestates' effects should be distributed for the benefit of the church and the poor2 (c); which was in effect the whole that properly belonged to the intestate, after the partes rationabiles of the wife and children. These (a) It will be observed that for all this there is no authority, unless it be that it is borrowed from Selden, who is not a contemporary authority, and whose writings are so prejudiced against all things ecclesiastical that he cannot be relied upon, save so far as he cites contemporary authority, of which in this matter he cites none that supports this absurd representation. It is utterly at variance with what the author had already quoted from Glanville-viz., that the law gave the heirs or next of kin a very good and sufficient remedy against any one withholding the effects of the deceased, and also laid down very clearly, quite in accordance with canon law, that the debts must first be satisfied. It is a fundamental principle of canon law, as the author, if he had been in the least acquainted with it, would have known. He, indeed, refers to Lyndwood as his authority on canon law (vide ante), but merely gives his own account of it, instead of resorting to the canon law itself; and in the next passage, when he cites the Decretals, he entirely misrepresents their effect. (b) It appears from the next reference that the author quoted from Selden; but if he had quoted the terms of the Decretal, it would have appeared that this meant after the satisfaction of just debts. It was only after that the distribution could commence, as the author must have known from Glanville, whom he had himself cited upon that point (c. 3). He must have forgotten this, to fancy that the canon law could ever have laid down anything so monstrous as that the next of kin and the church could divide all the effects before satisfying the debts of the deceased. The canonists were too good lawyers for that, and what they laid down was in exact accordance with the law of the land-viz., that upon the distribution, which could only commence after satisfaction of debts, the third part belonged to the deceasedthat is, was to be applied to pious uses for the benefit of his soul. This was according to the ideas of the age, and the law was naturally in accordance with them. It may be added that it is the third book of the Decretals which treats of testaments and intestacy, and in which the ecclesiastical law is stated to the effect that the debts must first be satisfied. (c) The author does not quote this constitution, nor give any reference to it, nor state whether it was an ecclesiastical or a lay constitution, nor when it was enacted, nor what are its terms; and so far as he states it, there is nothing to show that it was aimed at the church, nor is there any reason to suppose that it was, seeing that, as already shown from Glanville, the next of kin had already ample remedy against any one withholding the effects, unless, indeed, it was the crown; and all the charters after the time of John contained a clause to protect the assets of deceased tenants of the crown from the exactions of the king's officers, who seized the effects on the plea of indebtedness to the crown; and this clause therefore provided that, after satisfying the debts to the crown, the residue-or, if there were no debts to the crownthen the whole should be distributed among the next of kin-that is, of course, according to the law, leaving a share for the deceased. 1 Decretal, lib. v. tit. 3, c. 42. 3 Seld. 1681. abuses of ecclesiastical judges gave occasion to two statutes, made in the reign of Edward I. and Edward III. Of descent. The last mode of acquiring property was by succession. The law of descent in the time of Glanville continued, with some small variation. We have seen that in Glanville's time the eldest son was the sole heir, in knight-service, and in most instances in socage; 1 but it was now laid down by Bracton, generally, that, in both cases, jus descendit ad primogenitum.2 It was also now held, that all descendants in infinitum from any person who would have been heir, if living, were to inherit jure repræsentationis. Thus the eldest son dying in the lifetime of his father, and leaving issue, that issue was to be preferred, in inheriting to the grandfather, before any younger brother of the father; which settled the doubt that had occasioned so much debate in the time of Henry II.3 The rule of descent was, that the nearest heir should succeed; propinquior excludit propinquum, propinquus remotum, remotus remotiorem. Sometimes the right of blood constituted a particular sort of propinquity, to the prejudice of the male heir, who, in other instances, is so much favoured in our law; as in the following case: A man had a son and daughter by one wife, and after her death married another, and had a son and daughter by her; the son of the second marriage made a purchase of land, and died without children: in this case, says Bracton, the sister by the second wife would take, in exclusion of the other brother and sister. Some were of opinion, that this piece of law was entirely confined to cases of purchased lands, but that it was otherwise in cases of inheritance; for there respect was always to be had to the common ancestor from whom the inheritance descended; and the right should never come to a woman so long as there was a male, or one descended from a male, whether from the same father and mother, or not. Bracton, however, seems to think, that this rule of descent was to be observed in inheritances, as well as in purchased lands; because every one, as he came into seisin, made a stipes and a first degree: 5 and so it was settled in the next reign, when this opinion of Bracton was adopted in the maxim, seisina facit stipitem. The impediment thrown in the way of descent by the rule, nemo potest esse hæres et dominus, still continued, though it was avoided by many devices; the most common of which was that of infeoffing to hold of the chief lord, and not of the feoffer; for this avoided the necessity of doing homage to the elder brother.6 The law had provided a preventive against imposing supposititious De partu supchildren, to exclude those who were next entitled to the posito. inheritance. If a woman, either in the life of her husband, or after his death, had pretended to be pregnant when it was thought she was not, in order to disinherit the heir; the heir might * Vide ante, 79. 1 Vide ante, 78. 5 Ibid. 65 b. 2 Bract. 64 b. 4 Bract. 65. have a writ commanding the sheriff to cause the woman to come before him, and before the guardians of the pleas of the crown, or before such person as the king should authorise to judge therein, and cause her to be inspected by lawful and discreet women, in order to inquire of the truth; and she was put in a sort of free custody during her pregnancy, that the imposture, if any, might not escape detection. This was the way in which a woman was dealt with, when she falsely pretended to be pregnant. If the husband and wife agreed together in educating a supposititious child as their own, the right heir might have a writ quòd habeas corpora of the husband and wife before the justices, where the truth would be examined. Another person who had a temptation to play this trick upon the next heir, was the chief lord, who, when he had an heir in ward, and it died, would sometimes set up another, in order to continue the custody of the land; in which case, there was a writ and proceeding similar to the former.2 Of partition. When an inheritance descended to more than one heir, and they could come to no agreement among themselves concerning the division of it, a proceeding might be instituted to compel a partition. A writ was for this purpose directed to four or five persons, who were appointed justices for the occasion, and were to extend and appreciate the land by the oaths of good and lawful persons chosen by the parties, who were called extensores; and this extent was to be returned under their seals, before the king or his justices: when partition was made in the king's court, in pursuance of such extent, there issued a seisinam habere facias, for each of the parceners to have possession.3 Dower. It remains only to say a few words on the claim of dower, and then we shall have finished this part of our subject, namely, the title of private rights. Dower is defined by Bracton not in the words, but upon the ideas of Glanville.4 Dower, says he, must be the third part of all the lands and tenements which a man had in his demesne, and in fee, of which he could endow his wife on the day of the espousals; so that, according to Bracton, the claim of dower was still limited to the freehold of which the husband was seised at the time of the espousals, notwithstanding the provision of Magna Charta, which seemed to extend it to all the land that belonged to the husband during the coverture.6 The regular assignment of dower had been secured to widows by the chapter of Magna Charta just alluded to, and it was rendered more effectual by a provision in the statute of Merton.7 More will be said of dower when we come to the remedies which the law had furnished for recovery of it. Thus far concerning the law of private rights, as it stood in the time of Henry III. 1 Bract. 69, 70 a.b. • Vide ante, 72. 2 Ibid. 70 b, 71. Bract. 92. 3 Ibid. 71 b. to 77 b. 6 Vide ante, 242. CHAPTER VI. HENRY III. Of Actions-Of Courts-Writs-Of Disseisin-Assize of Novel Disseisin-Form of the Writ-Proceeding thereon-Of the Verdict-Exceptions to the Assize -Assisa veritur in Juratam-Quare ejecit infra Terminum-Assize of Common-Of Nuisance-Assisa Ultimæ Præsentationis—Exceptions thereto-Of Quare Impedit-Quare non Permittat-Assisa Mortis Antecessoris Vouching of Warrantor-Where this Writ would lie-Writ de Consanguinitate-Quòd Permittat-Assisa Utrum-Of Convictions and Certificates Of different Trials-Dower unde Nihil-Writ of Right of Dower— of Waste Of Writs of Entry-Different Kinds thereof. THE whole course of judicial proceeding, since the time of Glanville, had become a business of much learning and refinement; the writ, the process, the pleading, the trial, every part of an action was treated as a subject of intricate discussion. While these changes were made in the old remedies, new ones were invented, as more peculiarly adapted to certain cases than those before in Of all these we shall treat in their order. use. Actions are divided by Bracton into such as were in rem, or in personam, or mixt; that is real, personal, or mixt.1 Of actions. Personal actions were for redress in matters ex contractu, and ex maleficio, as the civilians termed it; and also in such as they called quasi ex contractu, and quasi ex maleficio. It follows, that of personal actions arising ex maleficio, some were civil, and some criminal. Real actions are for the recovery of some certain thing; as a farm, or land: they were always brought against the person then in possession of the thing, and were for the recovery of it in specie, and not for an equivalent in damages. 2 When an action was brought for any movable, some thought that it should be considered as a real action, as well as personal, because the person possessed of it was to make restitution of the thing in question; but says Bracton, this was, in truth, only personal; for the defendant was not obliged specifically to restore the thing demanded, but was only bound to the alternative of restoring the thing, or its price; and therefore, in such an action, the price of the thing ought always to be defined. A mixt action was so called, because it was tam in personam, quàm in rem, having a mixt cause on which it was founded; as the proceeding de partitione among parceners, and de proparte sororum; that for settling of bounds between neighbours and baronies per rationabiles divisas, or per perambu |