Page:Select Essays in Anglo-American Legal History, Volume 1.djvu/487

 1J^. ROBINSON: ANTICIPATIONS 473 they reminded the manj of penance done with paper lantern and in white sheet for heresies and vices ;'^ of comfort given to tyranny and to popery: the law which they administered was not English, and though intrinsically less obscure, was less easily understood by the people than Common Law: their judges had been corrupt^ and the civilians who pleaded in them unpopular:^ lastly, the time favoured, and the con- stitution of those tribunals justified, and alteration. Yet ordinary jurisdiction was transferred only, and not entirely taken away : partly it was necessary, and partly it was suited to the age. The business of the Clerical Courts, administra- tive and litigious, had still to be done ; acts regarded in law as crimes did not cease in public opinion to be criminal ; tithe was exacted still; property left by testators and intestates had still to be disposed of; clerks had still to be instituted and inducted: these duties were transferred by degrees to lay hands. * On the civil side of the Spiritual Courts analogous changes were made, such as Bacon might have recommended,^ such as have nearly all been since carried out. All questions about tithes — " Norman " though they were — were tried at Common Law.® As to probate and administration: Bacon and Selden had argued that, by the Civil and the Canon and the English Law, the profane hand has a better right than the sacred to grant probate, to distribute legacies, to administer the property of intestates ; ' Brown v. Wentworth M3 Rep. 24: 12 Rep. 78 and 3 1st. 147: 4 Inst. 336; cp., as to Sir John Bennet, Willet, "Synopsis Papismi" (Charitable work done in the U. of O.) and Macray, "Annals of the Bodl.," p. 37. » Fronde, c. 24: Hallam, cc. 2, 4, 8: Steph., " Comm." intr. §1: Clar. It. s.. Burton, "Dairy," 4 Nov. 1654: Whitelock, 655: "Merc. Pol," No. 238. given by St. 1 Eliz. c. 1, §§ 39-43 to proceed with appeals to the Court of Rome in the cases of Tyrril v. Chetwood and Wife and Harcourt v. Tydell. and edification of the Church of England." 24, 31; 1650, c. 5; 1654, c. 45; 1656, c. 10: Harwood v, Paty, Hardres, 63: Jones, "The crie of bloud," p. 16; "A case concerning tythes;" Winstanly, etc. u.s. pp. 18, 19: W[m.l Sfhepherdl, "The Parson's Guide" (1654), c. 8.
 * Ih, 2, 1, 870: Proceedings in the Bp.'s and Archdn.'s Cts., Oxf.
 * Stt. 1643, May 17 and 20, c. 10; 1644 Nov. 5. Cp. the permission
 * See his " Certain considerations touching the better pacifications
 * Statt. 1644, c. 45, 1647, March 24, c. 85; 1648, cc. 110, 121, 1649, cc.
 * Bacon u. s.: Selden, " Eccl. Jurisdiction of testaments." (c. 1626).