Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/242

 228 //. FROM THE llOO'S TO THE 1800'S Division is founded on this Ecclesiastical law; but as to the origin of the Ecclesiastical Jurisdiction there is considerable doubt. [jlls were probably introduced by the clergy from Roman sources, and from early times the clerical courts had juris- diction over suits as to the validity of wills, or in what is known as " prohatio solemnis per testes.'^ ^ But whether this jurisdiction dates from the separation of the Courts by the Conqueror, or was assumed by the English Church at a later period, there is no evidence to show. Lyndwood ^ expressly says ^cujus regis temporibus hoc ordinatum sit non reperio,'' but the jurisdiction certainly existed at the time of Glanvil, ^ and the absence of evidence appears to show that, when assumed, it was not opposed by the common lawyers. As to the other branch of testamentary jurisdiction, the power of granting probate of a will in common form to an executor, and also as to the power of granting letters of adiuiiiLstration of the goods of an intestate to his next of kin, we have more evidence.* The latter was, even in the time of Glanvil, in the hands of the king's courts, the next of kin having a right to succeed, subject to the claims of the lord, without any clerical intervention.^ In the reign of Stephen, the jurisdiction over ecclesiastical persons and the distribution of their goods was placed in the hands of the Bishop, but this did not affect the laity. ^ Mr. Coote at- tributes clerical control over wills to the study of the Civil law by the clergy after the teaching of Vacarius, although their attempts to obtain that control were resisted by the barons.^ In 1191, the clergy in Normandy, who had pre- viously been granted, as in England, the control of clerical wills and intestacies, received the control of all wills and intestacies. Magna Charta contains the provision ^ " Si aliquis liber homo intestatus decessit, catalla sua per manus propinquorum et amicorum suorum per visum ecclesiae distri- buantur^ salvis cuicunque debitis, quae defunctus ei debebat,'* »B1. Com. iii. 95. Coote's Eccl. Practice, pp. 22-86. •Lyndwood, Provinciale, 3, 13, f. 176 (ed. 1679). »G1. vii. 8. «Coote, p. 22. "Gl. vii. 6, 7. •Coote, p. 2T. Stubbs, 8. C. p. 114. Ubid. p. 31. »§ 27. Stubbs, S. C. p. 292.