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Provincial and Legatine Constitutions

Canons derived their authority from the approval of each province's convocation and subsequent ratification by the crown. Beside the other laws of the land they were enforced to discipline church personnel, upon whom they were legally binding, and lay parishoners. Until the Canterbury Canons were ratified in 1604 (and accepted by the Convocation of York in 1606), canons used to lapse upon the death of each sovereign. Thereafter these canons remained unaltered until 1865.

Cardinal Othobon, papal legate (1268)

Libertatem extremi (extract)

The executors of testaments, before they shall intermeddle with the administration of the goods, shall make an inventory in the presence of some credible persons, who shall competently understand the value of the deceased's goods; and the same shall exhibit unto the ordinary: and if shall presume to administer, without such inventory made; he shall be punished by the discretion of the ordinary.

[Acton, Constitutiones Legatinae, 1679, pp.107-109.]

Cum mortis (extract)

Since the uncertainty of death often deprives men of the opportunity of making their last wills, human piety acteth mercifully towards the deceased, by distributing their goods to pious uses, so that they follow and help them, and propitiously intercede for them with the heavenly judge; Therefore we, by our approbation confirming the provision heretofore made (as it is said) by the prelates of the kingdom of England with the approbation of the king and barons, concerning the goods of such as die intestate, do strictly forbid prelates, and all other whatsoever, to take or seize the goods of intestates, contrary to the provision aforesaid.

[Acton, Constitutiones Legatinae, 1679, pp.121-122.]

Simon Mepham, archbishop of Canterbury (1329)

Of Testaments: Item quia locorum

Also because the ordinaries of places, hath been hitherto (as it is reported) very heavy and costly unto the executors of testaments, by seeking out delays, crafts and cautels, about the insinuation of testaments, and committing of the administration, to the intent they might the rather milk them of their money, we ordain that for the insinuation of a poor man's testament whose inventory passeth not 5 sterling, nothing in the world shall be required.

[Lyndwood, Provinciale, 1679, pp.170-171; 1929, p.65.]

John Stratford, archbishop of Canterbury (1342)

Of Donations: Cordis dolore concutimur, & infra

spacerBy deliberation of this present Council we will that all and singular in our Province, which, having any likely conjecture of death to draw nigh, do presume to give all their goods or any notable quantity of them amongst the living, or make any other alienation of evil purpose or fraud, so that the Church, the King or other creditors unto whom the said givers or alienators were effectively bound should be defrauded of their rights, or their wives or children should be defrauded without recovery of their portions due unto them either by law or custom.
spacerSecondarily, all such as attend the sick at their last end and all other times, if they counsel or temourously procure such donations or alienations to be made, and all such as withdraw the sick or other by cousel or evil suasions by the mind of testament making, by means whereof certain it is that the free testament making is let and the Church and other above named maliciously stopped from their right.
spacerThirdly, all such as be of knowledge and consent of the said fraud or malice, and all that receive the things so given or alienated, or give counsel or favour thereunto shall incur in the deed doing the sentence of the great excommunication. And not only that, but also they that so give or alien such their goods within our province for their great and weighty offence shall lack ecclesiastical sepultre, any manner absolution given from the said sentence notwithstanding. And lest the difficulty of proving the said fraud or malicious purpose should make our provision without profit or effect , we statute (statuimus) and ordain that as often as any of the said Province shall either give goods as aforesaid, or otherwise by any title alienate them whole, or in so notable quantity that it may appear that of the residue the Church and other creditors cannot be satisfied of their duties, and their wives and children of their said portions as it is becoming, so often the said donation or alienation shall be judged in that deed to be made fraud or some malicious intent, no further proof thereof required.

[Lyndwood, Provinciale, 1679, pp.161-165; 1929, pp.62-63.]

Of Testaments: Statutum bonae memoriae

Calling to mind the statute made by Boniface of good memory, once Archbishop of Canterbury, our predecessor, concerning the goods of them that die intestate and the last wills of ascripts and of other men of servile condition whose beginning is Ceterum contingit interdum etc. [1261], which statute of late is called into doubt by many men, we therefore (some things added unto the same and some things taken away as it appeareth by the words ensuing) do ordain the same firmly hereafter to be observed and kept, but it happeneth sometimes that when lay people and clerks, by the hand and judgement of God, depart intestate, the lords of the feods will not suffer the debts of the dead to be paid of their movable goods, neither will suffer the said goods to be distributed in the uses of the wives their children or parents, or that portion which after the custom of the country appertaineth to the dead, otherwise to be bestowed for them at the disposition of the ordinaries. Other there be that letteth, or causeth to be let, the free making of testaments and their executions, and the last wills of ascripts and of other persons of servile condition, of women also both married and unmarried and of their own wives and other men's wives, which things they do as well against the laws as against the customs of the Church hitherto approved, unto the displeasure of the divine majesty and evident hurt and injury of the Church's rights, therefore by authority of this present Council we decree (decernimus) all and singular, that hereafter offend in these things or any of them, to be wrapped in the sentence of the great excommunication : moreover, when testaments be approved and allowed before the ordinaries of the places (to whom it appertaineth), the proving or allowing of such testaments shall in no wise be required or called again of the lay judges, except it be by reason of lay fee, if any happen to be bequeathed in a testament : neither clerks nor lay of whatsoever condition they be shall hinder or let, but that the testaments and last wills of the dead may go forward and take effect in such things as may be bequeathed by custom or law. And if there be any that dare do hereafter do contrary to these things know they themselves to fall into the sentence of the great court by authority of this present Council. And against them and other which work wickedly in the premises we decree the spiritual sword to be exercised as against violators and disturbers of the Church's liberties. We forbid also any executor of testaments to be suffered to minister the goods of any testator, except a true inventory be first made of the said goods, the funeral expenses and such as shall be spent about the making of such inventory only excepted. And we will this inventory to be delivered to the ordinaries of the places within the time appointed by their discretions, and, after that the testament be proved before the ordinaries according to the manner, the execution, or the administration of such goods shall not be committed unto any but such as can and (if need require) do give sufficient caution and faithful promise to make a due reckoning of their administration, when they shall be conveniently required thereunto by the ordinaries of the places. Also we ordain by authority of this present Council that no religious persons of whatsoever profession they be, may be executors of testaments, except it be granted by the will and licence of their ordinaries and the parish Church receive his accustomed duty of the portion that appertaineth to the dead, we ordain moreover that no executor may take or appropriate unto himself anything of the dead's goods whose testament he executeth either by title or buying, or any other title but that is given unto him of the testator being alive, or is left in his testament or last will, or is approved at the ordinaries' discretion for the labour of the executor, or was owed unto him by the dead, or is due for moderate expenses of his administration, under pain of suspension from Church entry, into which we will them that do the contrary to incur in so doing, whereof they shall not obtain absolution until they have restored the things so taken or unjustly appropriated, and have paid of their own goods unto the fabric of the Cathedral Church, whereof the dead was subject double the things which they so take or appropriate. All and singular the above written we command solemnly to be published twice every year in every Church throughout our province of Canterbury.

[Lyndwood, Provinciale, 1679, pp.171-179; 1929, pp.65-67.]

Of Testaments: Adeo quorundam, & infra

We ordain (statuimus) that, for the proving or allowing or insinuation of any testaments, there shall be nothing in the world be received by the Bishops or other ordinaries : notwithstanding we grant the clerks that write such insinuations to receive for their labour only sixpence, but if the inventory of any dead's goods be found to pass the sum of thirty shillings, and yet cometh not to 5, the Bishops or ordinaries or their deputies and the auditors of accounts or other ministers intending such accounts may not presume to take above 12d. for the account, hearing and all things to be done about the same, or for letters of acquaintance or any other, but if the said inventories contain the sum of 5 or more and yet under 20, they that intend the counts and other ministers aforesaid shall be contented with three shillings for their labour for the letters of acquaintance and other things above rehearsed. And if they contain 20 or more and yet less than 60 [sic], they shall not take above five shillings for their labours, letters and other writings : but if such inventories come to the sum of 40 [sic] or more and yet not to 100 they may receive ten shillings for the premises and not above. And if the said inventories contain the sum of 100 or more and yet not 150 they shall not presume to take for the premises above twenty shillings and so ascending or proceeding farther for every fifty rising they may receive ten shillings over and beside the said twenty shillings and not above : notwithstanding we permit to the clerks to take for every letter of acquaintance that they write above the letters beforesaid sixpence for their labour. And if it chance that any of them do take in any case aforewritten by any manner or cautel, couen or craft, above the sum taxed, whether it be ready money or other things, he shall be bound to give within a month towards the works of the Cathedral Church of that place double that which is received above duty, or else if they be Bishops that differ above the said time to restore the said double, know they that Church entry is forbidden them. And if they be inferior ordinaries, they shall be suspended from office and benefice until they make full payment of such double to the said Cathedral Churches. And in no wise letters of acquaintance shall be granted or given to the executors of testaments in the time of their probation, allowing, or insinuation, or afterwards, before the executors have made a faithful account of their administration, under pain of suspension from Church entry by the space of six months, into which we will them that do the contrary to incur in so doing.

[Lyndwood, Provinciale, 1679, pp.181-182; 1929, pp.68-69.]

Canons of 1604, [Richard Bancroft, bishop of London]

92. None to be cited into divers courts for probate of the same Will.

Forasmuch as many heretofore have been by apparitors, both of inferior courts and of the courts of the archbishop's prerogative, much distracted, and diversely called and summoned for probate of wills, or to take administrations of the goods of persons dying intestate, and are thereby vexed and grieved with many causeless and unnecessary troubles, molestations, and expenses; we constitute and appoint that all chancellors, commissaries or officials, or any other exercising ecclesiastical jurisdiction whatsoever, shall at the first charge with an oath all persons called, or voluntarily appearing before them, for the probate of any will or the administration of any goods, whether they know, or (moved by any special inducement) do firmly believe, that the party deceased, whose testament or goods depend now in question, had at the time of his or her death any goods, or good debts in any other diocese or dioceses, or peculiar jurisdiction within the said province, to the value aforesaid, and particularly specify and declare the same; then shall he presently dismiss him, not presuming to intermeddle with the probate of the said will, or to grant administration of the goods of the party so dying intestate; neither shall he require or exact any other charges of the said parties, more than such only as are due for the citation, and other process had and used against the said parties upon their further contumacy; but shall openly and plainly declare and profess that the said cause belongeth to the prerogative of the archbishop of that province; willing and admonishing the party to prove the said will, or require administration of the said goods in the court of the said prerogative, and to exhibit before him the said judge the probate or administration , under the seal of the prerogative, within forty days next following. And if any chancellor, commissary, official or other exercising ecclesiastical jurisdiction whatsoever, or any their registrar, shall offend herein, let him be ipso facto suspended from the execution of his office, not to be absolved or released, until he have restored to the party all expenses by him laid out contrary to the tenor of the premises; and every such probate of any testament, or administration of goods so granted, shall be held void and frustrate to all effects of the law whatsoever. Furthermore, we charge and enjoin that the registrar of every inferior judge do, without all difficulty or delay, certify and inform the apparitor or the prerogative court, repairing unto him once a month, and no oftener, what executors and administrators have been by his said judge, for the incompetency of his own jurisdiction, dismissed to the said prerogative court within the month next before, under pain of a month's suspension from the exercise of his office for every default therein. Provided that this canon, or anything therein contained, be not prejudicial to any composition between the archbishop and any bishop or other ordinary, nor to any inferior judge that shall grant any probate or testament or administration of goods, to any party that shall voluntarily desire it, both out of the said inferior court, and also out of the prerogative. Provided likewise that if any man die in itinere [while travelling], the goods that he hath about him at that present shall not cause his testament or administration to be liable unto the prerogative court.

93. The rate of bona notabilia liable to the prerogative court.

Furthermore, we decree and ordain that no judge of the archbishop's prerogative shall henceforward cite, or cause to be cited, ex officio, any person whatsoever to any of the aforesaid intents, unless he have knowledge that the party deceased was at the time of his death possessed of goods and chattels in some other diocese or dioceses, or peculiar jurisdiction within that province, than in that wherein he died, amounting to the value of five pounds at the least; decreeing and declaring that whoso hath not goods in divers dioceses to the said sum or value shall not be accounted to have bona notabilia. Always provided that this clause, here and in the former constitution mentioned, shall not prejudice those dioceses where by composition or custom bona notabilia are rated at a greater sum. And if any judge of the prerogative court, or any his surrogate, or his registrar or apparitor, shall cite, or cause any person to be cited into his court, contrary to the tenor of the premises, he shall restore to the party so cited all his costs and charges, and the acts and proceedings in that behalf shall be held void and frustrate. Which expenses, if the said judge or registrar or apparitor shall refuse accordingly to pay, he shall be suspended from the exercise of his office, until he yield to the performance thereof.

125. Convenient places to be chosen for the keeping of courts.

All chancellors, commissaries, archdeacons, officials and all other exercising ecclesiastical jurisdiction shall appoint such meet places for the keeping of their courts, by the assignment or approbation of the bishop of the diocese, as shall be convenient for entertainment of those that are to make their appearance there, and most indifferent for their travel. And likewise they shall keep and end their courts in such convenient time as every man may return homewards in as due season as may be.

126. Peculiar and inferior courts to exhibit the original copies of Wills into the Bishop's Registry.

Whereas deans, archdeacons, prebendaries, parsons, vicars and others, exercising ecclesiastical jurisdiction, claim liberty to prove the last wills and testaments of persons deceased within their several jurisdictions, having no known nor certain registrars nor public place to keep their records in; by reason whereof many wills, rights and legacies, upon the death or change of such persons and their private notaries, miscarry and cannot be found, to the great prejudice of his majesty's subjects; we therefore order and enjoin that all such possessors and exercisers of peculiar jurisdiction shall once in every year exhibit into the public registry of the bishop of the diocese, or of the dean and chapter under whose jurisdiction the said peculiars are, every original testament of every person in that time deceased, and by them proved in their several jurisdictions, or a true copy of every such testament, examined, subscribed and sealed by the peculiar judge and his notary. Otherwise, if any of them fail so to do, the bishop of the diocese, or dean and chapter unto whom the said jurisdictions do respectively belong, shall suspend the said parties and every one of them from the exercise of all such peculiar jurisdiction until they have performed this our constitution.

[Bray, The Anglican Canons 1529-1947, 1998, pp.389-393, 425-426.]

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