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culum, superscribtionem meam et infra subscripsi. Pompulius Severus v. d. d. cum suprascribtis viris in hoc testamento pariter interfui, in quo agnosco anuli mei signaculum, sed et intrensicus subscribsi," &c.
The voluntary jurisdiction in respect of wills was rigidly kept on the secular side of law, so long as there remained an empire of the West, and with some degree of jealousy, if we may so conclude from the fact that the Bishop really had a voluntary jurisdiction concurrent with the defensor civitatis on other civil matters of some importance.1
But immediately on the fall of the empire in the West in the fifth century, a great revolution passed over the municipal régime of Gaul. The internal administration, the voluntary jurisdiction, and the correctional police, had been in all cases left to the Curia or municipal corps of each city, while the contentious and criminal jurisdiction had been reserved to the imperial officer; but on the dissolution of the Empire, the municipal magistrates saw themselves suddenly invested, in addition to their former attributes, with an authority which they had never possessed before-an authority left vacant by the retirement of the imperial officers. Grave changes were then made in the personnel of the urban magistrature. All the notable or leading citizens, including the clergy, entered the Curia, the hereditary and aristocratic character of which was transformed into an elective government. The Bishop then intervened directly in the rule and administration of the city. He became president of the Curia, the first magistrate as well as bishop. And a hagiograph of the seventh century, quoted by A. Thierry, shows that he was elected by the people to each office,-to the secular as to the sacred. During the Merovingian period, the Curia, under its new presidency, continued to exercise the same voluntary jurisdiction over wills as before; but the defensor civitatis ere long disappeared entirely.
This state of circumstances does not, however, carry us much
1 De Fresquet, vol. ii. p. 512.
A. Thierry's Monographie le la Constitution communale d'Amiens, in his Tableau de l'ancienne France municipale; and the same author's Essai sur l'Histoire de la Formation et Progrès du Tiers Etat.
further; for though the Bishop now decrees the apertura of wills, and afterwards approves and registers them, in all this he acts as the judge of a civil court, and his own Audientia has received no amplification of jurisdiction.
This form, however, of municipal administration was subverted on the maturity of the feudal system in the tenth and eleventh centuries. The échevins who had succeeded the decuriones in the Carlovingian period, were replaced by the vassals of the Count, and the Curia became merely a cour seigneuriale, in which the Bishop lost his civil pre-eminence. Taking these circumstances in review, we cannot doubt that the voluntary jurisdiction over wills must have been transferred from the Curia to the Bishop's own Court before the feudal period. It could never have taken place within that period, for the profits of such a judicial speculation would have insured the Count's tenacity, and the Bishop had enough to do to hold his own, without encroaching upon the ground of others. The only period in which the transfer could have been made would seem to have been the Carlovingian, for the popularity of the episcopal order with kings and people continued far into that age; and as late as A.D. 575 we have recorded instances of wills proved before the Curia.1
The object for which we can suppose that the Bishop advocated the transfer of the insinuation of wills to his own court and his own agents, must have been the facilitation of the execution of wills under the tuitory power which he possessed. The way to such an event had been long previously prepared; for even before the time of Constantine public opinion had of its own accord, as we have scen, placed testaments under the protection of the ecclesiastics, just as it had also placed widows and orphans under their care and guardianship: and the emperors of the West had, since that epoch, expressly given to the Bishop a jurisdiction in all matters touching upon religion. This presumed object of the bishops might not unreasonably be called a religious one. It is true that through all the other causes of the Consistory the thread of religion runs broadly and distinctly.
Edwards, p. 82.
2 Troplong, p. 124, 125.
In testamentary matters it is of thinner fibre, and less obvious to the careless eye; but it exists, nevertheless, and is found in the pious, charitable, and friendly dispositions which the deathbed or its prospect prompts to the minds of most testators.
To carry out this object of furthering the payment of legacies under all circumstances, even legal informality included, as the Council which we have quoted so boldly proposed, it became a vital necessity that the Bishop should insinuate these informal wills at least, for the Curia would not; and we may comprehend how, after having attained the right to insinuate these, the necessity as well as advisability of transferring to his archives all other wills would follow almost sans dire. And if it be asked by what authority this so civil jurisdiction was transferred from the Curia to the episcopal Audientia, the question can easily be answered. The influence, official and personal, religious and secular, of the Gallo-Roman and the Frankish Bishop was immense; but it had been justly earned by him. He had been a good and conscientious judge (beyond what the Pagan world had either experienced or conceived) in all the matters which popular feeling had urged the emperors to confide to him. He had in their time also, as we have observed, exercised a voluntary jurisdiction in certain things, which were previously transacted before a civil judge only; and upon the fall of the Western Empire he had become dominus of his city-the head of the Curia and chief magistrate. The Bishop's reasoning, and perhaps his wish, were of themselves, therefore, a sufficient guarantee to his fellow-citizens to confer upon him the registration of wills. This accession to his voluntary jurisdiction was given by the same persons who had elected and appointed him their bishop and dominus, and in the exercise of the same authority -viz. the citizens and their magistrates. The right of the Bishop, therefore, rests upon the best and most legal foundation which history has ever recorded; and the nonsense about episcopal encroachment in secular affairs becomes simply ludicrous, however gravely expressed or warmly urged. Indeed the latter may rather be said to have been the only matters in which the Church has not encroached upon the laity; and the charge 1 Thierry's Tiers Etat, p. 15; and Troplong, p. 118, note.
VOL. 1. NO. II.
makes a nearer approach to probability, and would have a better prospect of credence amongst educated persons, if it were applied to spiritual matters.
Such, and so distinct as we have stated, have been the origins of the two now united elements of the probate; and it only remains to consider whether such a union is really necessary, or whether one of those elements may be disengaged and retained in a separate existence, while the other is discarded altogether. On the one hand, the advocates of what is now termed registration hold the proof and authentication of a will, and the granting of administration of a testator's chattels, purely in ludibrio. They ignore altogether the meaning and efficacy of such practice, and in their juridical creed acknowledge simple registration only. In fact, they admit of no real securities for the public. The case put by these gentlemen is, therefore, enounced clearly and intelligibly enough, and requires but a brief examination. Is simple registration, and no more, a safe or salutary principle, when applied to the circumstances of wills? In other words, is the case of the latter instruments the same as that of deeds? Is it such that a will can, with security to the public, be carried into an office merely receptive and ministerial, like the registries of Middlesex and the West Riding? We think not; for we can see no assimilation between the two cases. In the case of deeds, the sole object sought to be, and which can be, attained by registration, is the protection of third parties, whose interests might possibly be affected by secrecy and silence. It is not intended to secure the original parties themselves, for that is obviously unnecessary, as there exists a privity between them; but this privity can, in the case of wills, be in no way traced between a testator and his legatees. In deeds, the seisin and possession is given by living persons to living persons; in wills, it is given by the instrument alone, and without consideration, or stated and appreciable motive. Moreover, in the very nature of deeds there exist securities for the public which cannot be found in wills. In deeds, the supposed vendor or mortgagor may easily emerge and refute, by his own evidence, the act of the forger; in wills, the defrauded heir or next of kin will need all the aid which protective and
preventive law can afford. But a look beneath the surface, such as a Court of Probate can give, in the exercise of voluntary jurisdiction merely, will often defeat the best-laid plans of the wholesale forger, and the partial interpolator.
It therefore follows, that while the deed requires no proof, the will requires much; and with proof there must be combined legal approval and authentication. Accordingly, we think that the insinuatio of the Roman Curia and the Ecclesiastical Consistory should be retained in its essentials.
In regard to the other element of the probate, there can, we think, be very little controversy or doubt that such a power should be vested in some Court, and that such power, also, should be discretionary and unfettered. A testator may in error appoint a bankrupt, a felon, or a fool, to manage, arrange, and settle his affairs; but the Ecclesiastical Court, bound by the indiscriminating rules of the Common Law, must obey and confirm such appointment without a murmur of exception. This is plainly absurd, and impolitic. We have seen that such was not always the practice in England, and historical tradition steps in and shows that the administration of a testator's estate should not be left absolutely to his own election and nomination; for he may be weak and ignorant himself,-he may be misled and blinded by others,—and in the last act of his life may defeat his most cherished intentions by the choice of a dishonest steward. A Court, therefore, should have a controlling and supervising power over testamentary appointments of executors. If the testator appoint a good and trustworthy person to the office, the appointment should, of course, be confirmed; but if the executor be criminal, notoriously fraudulent, or mad, it is manifestly for the true interest of the public that a Court, with administrative powers of its own, should interfere, and not only supersede a testator's mistaken choice, but should also appoint a better minister in his stead.
H. C. C.