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• such consent, it was always held to be valid and binding; 6 and from hence some bad men among the clergy took occa(fion to do much mischief, by marrying all who offered them“ selves; whose numbers daily increased by the strictness of the ? ecclesiastical officers in granting licences, and the obedience • of the clergy in general to the canons of the church.
" It was therefore thought necessary, in the reign of King < William the Third, to enact, “ that every parson, who shall “ marry any person without banns or licence, or shall know“ ingly permit any other minister to marry any persons, in
any church, or chapel, to such parson belonging, shall for“ feit 100 pounds, one moiety to his Majesty, and the other " to the informer. And that every man so married, shall có forfeit ten pounds, and that every sexton or parish clerk « assisting, fhall forfeit five pounds.' 7 and 8 William III. cap. 5.
And in the tenth year of Queen Anne, it is farther enacted <by statute, “ that if a parson, vicar, or curate, is in prison, es and the goaler shall knowingly permit such clergyman to “ celebrate marriage, before publication of banns, or licence « obtained, he shall forfeit 100 pounds.” 10 Anne, cap. 19. fect. 176.
< But these laws, strict as they may appear, were yet found, « by experience, to be ineffectual: for those of the clergy, who < were capable of offending, had feldom any fort of prefer
ment, so that fuspension to them could be little or no pu( nishment; and when the statutes were enforced, it generally < happened that the prosecutor was the greatest sufferer, thro
the poverty of the party prosecuted; so that the insufficiency
of all these laws to effect the good purposes for which they ( were intended, rendered it absolutely necessary to make a
law which, if I may be allowed the expression, should exe6 cute itself.
« This law is the statute of the 26th of King George the • Second, by which it is ordained, in imitation of the Roman
law, (and not in contradiction to any divine precept. See • Milton's Tetrachordon.) • that all marriages celebrated « without banns, or licence first had, shall be null and void « to all intents and purposes: and the clergyman who shall “ be proved to have folemnized any such marriage, shall be 66 transported to some of his Majesty's plantations in America “ fourteen years.” for 26. George II.
From the SECOND Book. Tit. 1. sect. 39. It hath been allowed by the Emperor Adrian, in
pursuance of natural equity, that any treasure which a man finds in his own lands, Mall become the property of the finder, &c.
The Note. · Treasures naturally belong to the finder : " that is, to him who moves them from the place where they • are, and secures them; yet nothing forbids, but that the laws ' and customs of any country may ordain otherwise. Plato
was defirous, that notice should be given to the magistrates, (and that the oracle should be consulted: and Apollonius, • looking upon a treasure found as a particular blessing from • Heaven, adjudged it to the best man. The Hebrews gave it • to the owner of the ground where it was found, as may be
gathered from Christ's parable, Matt. xiii.44. And that the Syrians did the same, we may infer from a story in Philoftratus, lib. vi. cap. 16. The laws of the Roman Empe
rors are very various upon this subject, as appears partly « from their constitutions, and partly from the histories of • Lampridius, Zonarus, and Cedrenus. The Germans ao • warded treasures found, and indeed all other adesolo (i. e.
things without an owner) to their prince; which is now
grown so common, that it may pass for the law of nations; • for it is now observed in Germany, France, Spain, Den« mark, and England: where treasure-trove is understood to
be any gold or silver, in coin, plate, or bullion, which hath been of antient time hidden; and wheresoever it is found, if
no person can prove it to be his property, it belongs to the • King, or his grantée. A concealment of treasure-trove is
now only punished by fine and imprisonment; but it appears " from Glanvill and Bracton, that occultatio thefauri inventi
fraudulosa was formerly an offence punishable with death.' 3 Co. Inftit. 132, 133. Custum de Norm. cap. 18. Grot. de Jur. Belle et Pac. l. ii. cap. 8. sec. 7. Tit. 10. sect. i'. But we refuse not the testimony of tegetaries
and trustees, and of those who are allied to them, &c. That part of the Nore which we introduce here is, But by the practice of the ecclefiaftical courts of this kingdom, • which have the sole cognizance of the validity of all wills ' as far as they relate to personal estate, no legatée, who is
a subscribed witness to the will, by which he is benefitted, can be admitted to give his testimony in foro contrapietorio, as to the validity of that will, till either the value
of the legacy hath been paid to him, or he hath renounced < it; and, in case of payment, the executor of the supposed « will must release all title to any future claim upon such fup
posed legatée, who might otherwise be obliged to refund, if <the will should be set alide; and a release in this case is al• ways made, to the intent, that the legatée may have no • shadow of interest at the time of making his deposition. • SWINB. 397. The same practice also prevailed at common i law, in regard to witnesses who were benefitted under wills • disposing of real estate. And if a legatée, who was a wit• ness to a will, had refused either to renounce his legacy, or • to be paid a sum of money in lieu of it, he could not have . • been compelled by law to divest himself of his interest; and • whilst his interest continued, his testimony was useless : and < this was determined in the case of Anstey vers. Dowsing, in • Eafter-term, 19 Geo. II. Tit. 23. sect. 2. We must here observe, that there is an ab/oluste
necessity of appointing an heir in direct terms to every tefta
Here the Note places our otin practice in a comparative view with that of Rome.
• The substantial and essential part of every testament is, « the appointment of an executor ; for in England, if a man • bequeaths ever so many legacies, and appoints no executor, • such a disposition may be called a codicil or a will, but not ca teftament; and, therefore, he, who made such a dispo« fition, shall be deemed to have died without a teftament,
and the administration of his goods, with the will annexed, • shall be committed to his widow or next of kin, as in the 6 case of an intestate.' SWINB. part iv. fec. 2. Tit. xxv. sect. 2. But an inheritance can neither be given nor
taken away by codicil, &c. Upon this too, the latter part of the Note, which we here transcribe, points out the variation of our own practice from the Roman.
• In England the appointment of an executor makes the • only difference between a testament and a codicil; and this • difference is little more than nominal; for whatever may • be done by the one, may also be done by the other; so that • a condition may be imposed, an estate may be given, or an <heir disinherited, as well by codicil as by teftament; and
even lands may be disposed of by a codicil, if it is signed
by the deceased, and attested by three witnesses in his pre• sence, tho' the deceased left no testament, (for a codicil,
" in its true sense, denotes any testamentary schedule, and
may stand fingly, without relation to any other paper ;) and
even where there is a testament, disposing of real estate, " that testament may be altered or revoked by a codicil pro
perly executed. And where personal estate only is be
queathed, the same degree of proof will establith either a i testament or a codicil; and the one may revoke or con« firm the other, either wholly or in part, according to its respective contents.
Sect. 3. Corlicils require no folemnity. • In England (says Mr. Harris, in the latter part of his Note on this place) there is, in this respect, no distinction « between a teftament and a codicil ;for either may be fup
ported by an equal number of witnefles :two are regularly required to a testament, and the same number is also
required to a codicil; but if either a testament, or a codii cil, contains a devise of a real estate, three witnesses are in
dispensably necessary by act of parliament. Vid. 29 Car. II. cap. 3.
From the THIRD Book. Tit. x. Introduction. The right of succeeding by the pobelion
of goods, was introduced by the Prætor, in amendment of the ancient law, &c. We insert only part of Mr. Harris Note, viz.
• In England, estates in general may be divided into two 5 forts, real and personal; and successions to these two differ
ent kinds of estates, are governed by different rules of law. • But it is necessary to premise, that by real estate is com(monly meant, an estate in land in fee; i. e. descendible « from a man to his heirs for ever: and that by personal estate care meant, estates in land determinable upon years, money
in the funds, or upon mortgages, plate, jewels, &c. and ' that such personal estate is generally comprehended, in techni' cal and artificial language, under the terms goods and chat
tels. Now in real estates there is no room for the bonorum
poleflio of the Roman law to take place in England; for call such estates vest in and descend instantly to the heir, at " the death of his ancestor; but in regard to goods and chat• tels, the office of the ordinary or ecclesiastical judge, seems « to be similar to that of the Roman Prætor, in granting the
poffeffion of goods. For, when a man dies, who has dif* posed of his personal estate by teftament, the heirs or executors, appointed by that testament, must prove it before
can ecclesiastical judge, who, by granting probate, gives the
poffeffion of goods to the executors secundum tabulas, acccording to the will, or at least confirms them in the poffef< fion already taken. Cowel. h. I. And, when any per< fon dies intestate, the ordinary (by virtue of 31 Edw. III.
chap. xi. and 21 Hen. VIII. chap. v.) grants the poflession c. and administration of the intestate's goods to the widow 6 or next of kin to such inteftate, or to both, at his difcreįtion, &c.
From the FOURTH Book. Tit. i. sect. y. The penalty of committing a manifest theft is
quadruple, whether the thief is free or bond, &c. We shall much contract the Note upon this; yet still it will appear very useful.
· Theft, or larciny, is, by the law of England, divided • into simple ånd mixed larciny. Simple larciny is divided
into grand and petit. Grand larciny is committed when 6. the thing stolen is above the value of twelve pence; petit
larciny is committed when the thing stolen is of the value of 6 twelve pence only, or under. The nature of the offence is
the same in both, but the punishment of the first is death and loss of goods, and the punishment of the latter is loss of goods and whipping, but not death. But in grand larciny,
the jury may find the goods stolen of lefs value than twelve spence, and so convict the prisoner of petty larciny only. ç HetleY. 66. And this is often done.
• Mixed larciny, or robbery, is a violent taking away of money or goods from the person of a man, putting him in « fear, be the value of the thing taken above or under the vaclue of one shilling: the punishment is death, and forfeiture
of all his estate. A felonious entering into a man's house
in the night time, with an intent to commit felony, as to « steal fomething, whether such intention is executed or not, ' is termed burglary, from the Saxon word burgh, a house, ( and laron, a theft.
« And if such offence is committed in the day-time, it is called house-breaking. Vid. 3 Co. inft. 64. and HALE's • Hift. of the Pleas of the Crown,-&c.
• As to the restitution of stolen goods, there are three ways of obtaining it, viz. By appeal of robbery or larciny.-By < the statute of 21 Hen. VIII. cap. xi.---And by the course of common law.
- Upon an appeal, if the party appealed against was con• victed, a reftitution of the goods contained in the appeal,