recognised in many countries of Christendom. It seems to have been in fact an ecclesiastical usurpation. Our Saxon ancestors, "who," says Mr. Kemble, "never allowed their relations as Christians to abrogate the older rights they had possessed as citizens, where the exercise of the latter was clearly compatible with the recognition of the former," would have held that no fealty to divine authority was violated by giving to lay tribunals the cognisance of wills.

Lord Lyndhurst advocated the establishment of metropolitan and diocesan, or district courts, throughout the kingdom for the exercise of testamentary jurisdiction, and the abolition of courts of peculiars, and other petty jurisdictions, which are equally unnecessary and inconvenient. Perhaps most of the difficulties would be removed by establishing a metropolitan court, and preserving in each diocese the common form, or non-contentious, business of probate, abolishing, however, the existing distinctions which render diocesan probates inoperative out of the diocese in which they are granted.

A general registry of wills, and the establishment of one tribunal to determine all testamentary questions, are objects of the greatest public importance. Whether they are attainable without the establishment of a court of probate I do not undertake to say. The Commissioners on Ecclesiastical Courts, appointed in July, 1830, reported for the abolition of the diocesan courts. The Commissioners more recently appointed for inquiring into the state and practice of the Ecclesiastical Courts have also recommended the abolition of the existing jurisdiction. They add the recommendation that it be transferred to a new temporal court, to be called the "Court of Probate." The Ecclesiastical Courts Commissioners proposed to abolish the probate of wills altogether, substituting a simple registration, and that all contentious jurisdiction should be vested in the Court of Chancery. To the latter part of that recommendation the Lord Chancellor proposes by his present bill to give effect; he has wisely rejected the former. But whether the existing staff or machinery of the Court of Chancery is competent to the probate business of the country, even allowing wills of property under a certain amount to be proved in the district registries, is more than questionable. It is

natural that the public mind should take alarm at a project for placing "in Chancery" all estates of deceased persons that become the subject of litigation, and it is clear that without an increase of judicial force in the Court of Chancery it cannot be adequate to dispose of all the causes that will converge to the metropolitan court. Lord St. Leonard's says, it is "anomalous that one court should decide on the validity of wills, and another on their construction." But this anomaly is not perhaps of such practical inconvenience as would of itself justify the transfer of all contentious jurisdiction with regard to the validity of wills to the Court of Chancery, the tribunal empowered to construe them and enforce the execution of testamentary trusts. There is, no doubt, great force in the argument that questions as to the authenticity or validity of a will, depending on a number of circumstances, are not so likely to be decided correctly by a judge who never has any other branch of jurisdiction to exercise his mind as by one who is accustomed to deal with a wider range of legal administration; but a vice-chancellor would probably find his whole time demanded by the contentious jurisdiction in matters testamentary, involving, as they often do, most delicate questions of mental incapacity, undue influence, &c. If the existing staff of the Prerogative Court is to be transferred to the Court of Chancery, if district registries are to be constituted, and the whole time of a metropolitan judge is to be occupied by the new jurisdiction, the Lord Chancellor's bill would seem to constitute a court of probate in all but name. The Solicitor-General, I believe, proposed to send questions of fact to the county courts for decision, but those courts are ill suited to deal with the great rights involved in testamentary contentions.

At all events, the proposal of the Lord Chancellor to allow probate in the country, for estates of limited value, is wise, and likely to prove beneficial. It is, of course, essential that this privilege should not interfere with the safe deposit of all wills in a central registry. By the canons of 1603 peculiars and inferior courts are required to transmit the original wills they prove to the public registry of the bishop of the diocese, and the evil to be provided against is expressed to be their having no known nor certain registers, nor public place to keep their records in. But

the existing inconveniences arise, not only from the minor courts and courts of peculiar jurisdiction; the dispersion of wills, and want of safe custody, are serious evils, which can be met only by the change recommended by the commission.

2. ORIGIN OF EXECUTORS OF WILLS.

["Notes and Queries," vol. xii., p. 208.]

IT has been asked when Executors were first instituted? and a doubt has been expressed whether they were known to the Roman law. Perhaps they had their beginning in ancient Greece, for the man who was privileged to make a will signed it before witnesses (who were sometimes magistrates and archons), and then placed it in the hands of trustees called epimeleti, who were obliged to see it performed. See Archbishop Potter's "Antiquities," by Dunbar, ii. 339. Isæus seems to be his authority, but I have not the references. The émiμentai were any persons who were charged with care, guardianship, or performance,—the original apparently of executors in modern time. It was, we know, the custom among the Romans for a man to leave his fortune to a friend on some executory trust. The hæres fiduciarius seems to have corresponded to an executor. A testator's wishes, too, are

often said to be addressed ad fidei commissarios. The appointment of an heres, whom we may call executor in some respects, was essential to the validity of a will among the Romans. "It was," as Dr. Taylor remarks in his "Elements of the Civil Law" (535), "a form so necessary, that practice at least, if not law, required it as the principal ingredient." This is supported by the "Definition of Modestinus;" and it appears that the hæres testamenti was the full representative of the testator by the civil law, and succeeded to the whole estate, real as well as personal. See also Hallifax "On the Civil Law," 37.; and as to the form and mode of his institution, the sixth book of Justin., "Cod." tit. xxiii., De Testamentis, et quemadmodum Testamenta ordinetur, in "Corpus Juris Civilis," 194. sqq. "An executor," says

Ayliffe (in his "Parergon Juris Canonici Anglicani," 264), "so called ab exequendo, is in the civil and canon law sometimes called hæres testamentarius, and often hæres simply. He had his beginning in the civil law by the Imperial Constitutions." So, too, Cowell attributes the beginning of the executor to "the Constitutions of the Emperors, who first permitted those that thought good by their wills to bestow anything upon godly and charitable uses, to appoint whom they pleased to see the same performed."

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It seems to me impossible to peruse the chapters of the civil law quoted by these authorities without seeing that the office of executor was known to the Romans, although not by the modern name of executor, which, as Lord Hardwicke, in a case reported in the third volume of Atkins's "Reports," said, "is a barbarous term unknown to that law." Godolphin also treats the executor as known to the civil law, in the "Hæres Testamentarius;" (part 2. c. 1. s. 1.); and so does Swinburn, in his " Treatise on Wills.” The custom of making wills among the Teutonic nations is ascribed by Selden to the Romans, and to the reception by Germanic nations of the Roman law. Executors are often named in AngloSaxon wills; and there is every reason for believing that the custom of making devises of lands as well as chattels was introduced into England from Rome by Augustine. Wills were not considered in the same ceremonious point of view as the Roman Testamenti. They were partly a settlement or grant, and a testament, and corroborated by being witnessed by prelates, who are made to some extent executors, a portion of the testator's property being usually bequeathed to pious purposes, in which case even the Roman law allowed the intervention of clergy. (Kemble's Introd. to "Cod. Dipl. Ævi Saxon.," p. cviii.) The AngloSaxon prelates seem to have answered to the functionaries of the Pontifical College in this respect, who had the care and superintendence of wills and executory trusts. Mr. Kemble doubts whether probate was required among the Anglo-Saxons. There are Saxon wills in which a legatus is not designated or appointed for the execution of the testator's wishes. In some cases, as in the will of Elfhelm, in Lye's "Saxon Dictionary," vol. ii., Appendix, there is a request to the superior lord, which runs in

that instance-"Jam oro te, dilecte domine, ut meum testamentum stare possit, et tu ne sinas ut ipsum quis pervertat.' The earliest will printed in Mr. Kemble's valuable collection of Anglo-Saxon documents is of the ninth century. The legatum testamentum is rendered in the Anglo-Saxon zerefan zesetnýsse (gerefan gesetnysse)-words which seem aptly to designate a representative functionary. Glanville (writing, I need hardly say, in the reign of Henry II.) says the executors of a testament should be such persons as the testator has chosen for that purpose; but if he doth not nominate any person, the nearest of kin and relations may take upon them the charge (Lib. vii. ch. 6). This latter is the executor ab Episcopo constitutus mentioned by the Canonists and old writers on wills; the former is the executor à testatore constitutus, or executor testamentarius, who is usually meant by the term executor. The older authorities of ecclesiastical law treat the appointment of an executor as essential to a testament: but this strictness, as is remarked by the learned author of "Williams on Executors," has long ceased to exist. I have not any reference to the first known appearance of the term executor in our records. In the Rolls of Parliament, mention is made of the executors of the will of Bishop John de Kyrkeby in A.D. 1290. Nicolas, in his "Ancient Wills," does not give an older example, but there is no doubt the term has been known to our law from a much earlier period.

3. REVISION OF THE STATUTES.

["Morning Post," 26 March, 1853.]

AT this time, when the announcement of the Lord Chancellor's intention to undertake the revision and consolidation of the statute law has attracted serious attention in Parliament, as well as amongst lawyers, it may not be uninteresting to turn to a suggestion made, nearly a century ago, by a juridical writer of eminence, with a view to the effectual prosecution of this great object. Its necessity had then begun to be felt. I refer to the proposal of the Hon. Daines Barrington, published in his "Obser