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fuch confent, it was always held to be valid and binding; • and from hence fome bad men among the clergy took occa'fion to do much mischief, by marrying all who offered themfelves; whose numbers daily increased by the strictness of the ⚫ ecclefiaftical officers in granting licences, and the obedience of the clergy in general to the canons of the church.

It was therefore thought neceffary, in the reign of King < William the Third, to enact, "that every parfon, who shall "marry any perfon without banns or licence, or fhall know

ingly permit any other minifter to marry any persons, in "any church, or chapel, to fuch parfon belonging, fhall for"feit 100 pounds, one moiety to his Majefty, and the other "to the informer. And that every man fo married, shall "forfeit ten pounds, and that every fexton or parish clerk "affifting, fhall forfeit five pounds.' 7 and 8 William III. cap. 5.

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And in the tenth year of Queen Anne, it is farther enacted by ftatute," that if a parfon, vicar, or curate, is in prifon, "and the goaler fhall knowingly permit fuch clergyman to "celebrate marriage, before publication of banns, or licence "obtained, he fhall forfeit 100 pounds." 10 Anne, cap. 19. fect. 176.

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But thefe laws, ftrict as they may appear, were yet found, by experience, to be ineffectual: for thofe of the clergy, who were capable of offending, had feldom any fort of preferment, fo that fufpenfion to them could be little or no pu• nifhment; and when the ftatutes were enforced, it generally < happened that the profecutor was the greatest sufferer, thro the poverty of the party profecuted; fo that the infufficiency of all thefe laws to effect the good purposes for which they C were intended, rendered it abfolutely neceffary to make a law which, if I may be allowed the expreffion, should exe• cute itself.

This law is the ftatute 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, fhall be null and void "to all intents and purposes: and the clergyman who shall "be proved to have folemnized any fuch marriage, fhall be "transported to fome of his Majefty's plantations in America "fourteen years." for 26. George II.

From

From the SECOND BOOK.

Tit. 1. fect. 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, shall become the property of the finder, &c.

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The NOTE.

• Treasures naturally belong to the finder :

that is, to him who moves them from the place where they ⚫ are, and fecures them; yet nothing forbids, but that the laws • and customs of any country may ordain otherwise. Plato was defirous, that notice fhould be given to the magiftrates, and that the oracle fhould be confulted: and Apollonius, looking upon a treasure found as a particular bleffing 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 Chrift's parable, Matt. xiii. 44. And that the Syrians did the fame, we may infer from a story in Philo. ftratus, lib. vi. cap. 16. The laws of the Roman Emperors are very various upon this fubject, as appears partly from their conftitutions, and partly from the hiftories of • Lampridius, Zonarus, and Cedrenus. The Germans a

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warded treasures found, and indeed all other adesπola (i. e. things without an owner) to their prince; which is now grown fo common, that it may pafs for the law of nations; for it is now obferved in Germany, France, Spain, Denmark, and England: where treafure-trove is understood to be any gold or filver, in coin, plate, or bullion, which hath been of antient time hidden; and wherefoever it is found, if no perfon 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 'fraudulofa was formerly an offence punishable with death.' 3 Co. Inftit. 132, 133. Cuftum de Norm. cap. 18. Grot. de Jur. Belle et Pac. 1. ii. cap. 8. fec. 7.

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But

Tit. 10. fect. 1. But we refufe not the testimony of tegetaries and trustees, and of thofe who are allied to them, &c. That part of the NOTE which we introduce here is, by the practice of the ecclefiaftical courts of this kingdom, which have the fole cognizance of the validity of all wills as far as they relate to perfonal eftate, no legatée, who is a fubfcribed witness to the will, by which he is benefitted, can be admitted to give his teftimony in foro contradictorio, as to the validity of that will, till either the value

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• of the legacy hath been paid to him, or he hath renounced it; and, in cafe of payment, the executor of the supposed ⚫ will must release all title to any future claim upon fuch fuppofed legatée, who might otherwife be obliged to refund, if the will fhould be fet afide; and a release in this cafe is always made, to the intent, that the legatée may have no • fhadow of intereft at the time of making his depofition. SWINB. 397. The fame practice alfo prevailed at common law, in regard to witneffes who were benefitted under wills • difpofing of real estate. And if a legatée, who was a wit• nefs to a will, had refused either to renounce his legacy, or

to be paid a fum of money in lieu of it, he could not have • been compelled by law to diveft himself of his intereft; and ⚫ whilft his intereft continued, his teftimony was useless: and this was determined in the cafe of Anftey vers. Dowfing, in Eafter-term, 19 Geo. II.

Tit. 23. fect. 2. We must here obferve, that there is an abfolute neceffity of appointing an heir in direct terms to every testament, &c.

Here the NOTE places our own practice in a comparative view with that of Rome.

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• The fubftantial and effential part of every teftament is, the appointment of an executor; for in England, if a man bequeaths ever fo many legacies, and appoints no executor, fuch a difpofition may be called a codicil or a will, but not a teftament; and, therefore, he, who made fuch a difpofition, fhall be deemed to have died without a testament, ⚫ and the administration of his goods, with the will annexed, 'fhall be committed to his widow or next of kin, as in the • cafe of an inteftate.' SWINB. part iv. fec. 2.

Tit. xxv. fect. 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 tranfcribe, points out the variation of our own practice from the Roman.

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In England the appointment of an executor makes the only difference between a teftament 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; fo that ⚫ a condition may be impofed, an eftate may be given, or an •heir difinherited, as well by codicil as by teftament; and even lands may be difpofed of by a codicil, if it is figned by the deceased, and attefted by three witneffes in his pre• fence, tho' the deceased left no testament, (for a codicil,

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in its true fenfe, denotes any teftamentary schedule, and may ftand fingly, without relation to any other paper ;) and even where there is a teftament, difpofing of real eftate, that teftament may be altered or revoked by a codicil properly executed. And where perfonal eftate only is bequeathed, the fame degree of proof will eftablish either a teftament or a codicil; and the one may revoke or confirm the other, either wholly or in part, according to its refpective contents.

Sect. 3. Codicils require no folemnity.

In England (fays Mr. Harris, in the latter part of his Note on this place) there is, in this refpect, no diftinction between a teftament and a codicil; for either may be fupported by an equal number of witneffes:-two are regularly required to a teftament, and the fame number is alfo required to a codicil; but if either a teftament, or a codicil, contains a devife of a real eftate, three witneffes are indifpenfably necessary by act of parliament. Vid. 29 Car. II. cap. 3.

From the THIRD BOOK.

Tit. x. Introduction. The right of fucceeding by the poffeffion of goods, was introduced by the Prætor, in amendment of the ancient law, &c.

We infert only part of Mr. Harris Note, viz.

In England, eftates in general may be divided into two forts, real and perfonal; and fucceffions to thefe two different kinds of eftates, are governed by different rules of law. But it is neceflary to premife, that by real eftate is commonly meant, an estate in land in fee; i. e. defcendible • from a man to his heirs for ever: and that by perfonal estate are meant, eftates in land determinable upon years, money in the funds, or upon mortgages, plate, jewels, &c. and that fuch perfonal estate is generally comprehended, in techni'cal and artificial language, under the terms goods and chattels. Now in real estates there is no room for the bonorum poffeffio of the Roman law to take place in England; for all fuch eftates veft in and defcend inftantly to the heir, at the death of his ancestor; but in regard to goods and chattels, the office of the ordinary or ecclefiaftical judge, feems to be fimilar to that of the Roman Prætor, in granting the poffeffion of goods. For, when a man dies, who has difpofed of his personal eftate by teftament, the heirs or executors, appointed by that teftament, must prove it before

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an ecclefiaftical judge, who, by granting probate, gives the poffeffion of goods to the executors fecundum tabulas, according to the will, or at least confirms them in the poffeffion already taken. CowEL. h. 1. And, when any per• fon dies inteftate, the ordinary (by virtue of 31 Edw. III. chap. xi. and 21 Hen. VIII. chap. v.) grants the poffeffion and administration of the inteftate's goods to the widow or next of kin to such inteftate, or to both, at his difcre<tion, &c.

From the FOURTH BOOK.

Tit. i. fect. v. The penalty of committing a manifeft theft is quadruple, whether the thief is free or bond, &c.

We fhall much contract the Note upon this; yet still it will appear very useful.

Theft, or larciny, is, by the law of England, divided into fimple ånd mixed larciny. Simple larciny is divided into grand and petit. Grand larciny is committed when the thing ftolen is above the value of twelve pence; petit larciny is committed when the thing ftolen is of the value of ⚫ twelve pence only, or under. The nature of the offence is • the fame in both, but the punishment of the first is death and lofs of goods, and the punishment of the latter is lofs of goods and whipping, but not death. But in grand larciny, the jury may find the goods ftolen of lefs value than twelve pence, and fo convict the prifoner of petty larciny only. HETLEY. 66. And this is often done.

Mixed larciny, or robbery, is a violent taking away of C money or goods from the perfon of a man, putting him in fear, be the value of the thing taken above or under the value of one shilling: the punishment is death, and forfeiturė ❝ of all his eftate. A felonious entering into a man's house in the night time, with an intent to commit felony, as to fteal fomething, whether fuch intention is executed or not, • is termed burglary, from the Saxon word burgh, a house, and laron, a theft.

And if fuch 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 reftitution of ftolen 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.

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Upon an appeal, if the party appealed against was convicted, a reftitution of the goods contained in the appeal,

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