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the history of the common law of england-及13何蛍

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e  been the true and rightful Successor to the Crown�察�in Point of  Descent from the Confessor�察�neither is it material�察�whether his  Pretence were true or false�察�or whether�察�if true�察�it were  available or not�察�to entitle him to the Crown�察�for whatsoever it  was�察�it was sufficient to direct his Claim�察�and to qualify his  Victory so�察�that the Jus Belli thereby acquired could be only  Victoria in Regem�察�sed non in Populum�察�and put him only in the  State�察�Capacity and Qualification of a Successor to the King�察�and  not as Conqueror of the Kingdom。      Thirdly�察�And as this his antecedent Claim kept his Acquest  within the Bounds of a Successor�察�and restrained him from the  unlimited Bounds and Power of a Conqueror�察�so his subsequent  Coronation�察�and the Oath by him taken�察�is a further  unquestionable Demonstration�察�that he was restrain'd within the  Bounds of a Successor�察�and not enlarged with the Latitude of a  Victor�察�for at his Coronation he binds himself by a solemn Oath  to preserve the Rights of the Church�察�and to govern according to  the Laws�察�and not absolutely and unlimitedly according to the  Will of a Conqueror。      Fourthly�察�That if there were any Doubt whether there might be  such a Victory as might give a Pretension to him�察�of altering  Laws�察�or governing as a Conqueror�察�yet to secure from that  possible Fear�察�and to avoid it�察�he ends his Victory in a  Capitulation�察�namely�察�he takes the ancient Oath of a King unto  the People�察�and the People reciprocally giving or returning him  that Assurance that Subjects ought to give their Prince�察�by  performing their Homage to him as their King�察�declared by the  Victory he had obtain'd over the Usurper�察�to be the Successor of  the Confessor�此�And consequently�察�if there might be any Pretence  of Conquest over the People's Rights�察�as well as over Harold's�察 �yet the Capitulation or Stipulation removes the Claim or Pretence  of a Conqueror�察�and enstates him in the regulated Capacity and  State of a Successor。 And upon all this it is evident�察�That King  William I could not abrogate or alter the ancient Laws of the  Kingdom�察�any more than if he had succeeded the Confessor as his  lawful Heir�察�and had acquir'd the Crown by the peaceable Course  of Descent�察�without any Sword drawn。      And thus much may suffice�察�to shew that King William I did  not enter by such a Right of Conquest�察�as did or could alter the  Laws of this Kingdom。      Therefore I come to the last Question I proposed to be  considered�察�viz。 Whether de Facto there was anything done by King  William I after his Accession to the Crown�察�in Reference either  to the Alteration or Confirmation of the Laws�察�and how and in  what Manner the same was done�此�And this being a Narrative of  Matters of Fact�察�I shall divide into those Two Inquiries�察�viz。  1st。 What was done in Relation to the Lands and Possessions of  the English�此�And 2dly�察�What was done in Relation to the Laws of  the Kingdom in general�察�for both of these will be necessary to  make up a clear Narrative touching the Alteration or Suspension�察 �Confirmation or Execution of the Laws of this Kingdom by him。      First�察�Therefore touching the former�察�viz。 What was done in  Relation to the Lands and Possessions of the English。 Those Two  Things must be premised�察�viz。 First�察�a Matter of Right�察�or Law�察 �which is this�察�That in Case this had been a Conquest upon the  Kingdom�察�it had been at the Pleasure of the Conqueror to have  taken all the Lands of the Kingdom into his own Possession�察�to  have put a Period to all former Titles�察�to have cancelled all  former Grants�察�and to have given�察�as it were�察�the Date and  Original to every Man's Claim�察�so as to have been no higher nor  ancienter than such his Conquest�察�and to hold the same by a Title  derived wholly from and under him。 I do not say�察�that every  absolute Conqueror of a Kingdom will do thus�察�but that he may if  he will�察�and have Power to effect it。      Secondly�察�The Second Thing to be premised is�察�a Matter of  Fact�察�which is this�察�That Duke William brought in with him a  great Army of Foreigners�察�that would have expected a Reward of  their Undertaking�察�and therefore were doubtless very craving and  importunate for Gratifications to be made them by the Conqueror。  Again�察�it is very probable�察�that of the English themselves�察�there  were Persons of very various Conditions and Inclinations�察�some  perchance did adhere to the Duke�察�and were assistant to him  openly�察�or at least under´hand�察�towards the bringing him in�察�and  those were sure to enjoy their Possessions privately and quietly  when the Duke prevailed。 Again�察�some did�察�without all question�察 �adhere to Harold�察�and those in all Probability were severely  dealt with�察�and dispossess'd of their Lands�察�unless they could  make their Peace。 Again�察�possibly there were others who assisted  Harold�察�partly out of Fear and Compulsion�察�yet those�察�possibly�察 �if they were of any Note or Eminence�察�fared little better than  the rest。 Again�察�there were some that probably stood Neuters�察�and  medled not�察�and those�察�though they could not expect much Favour�察 �yet they might in Justice expect to enjoy their own。 Again�察�it  must needs be supposed�察�That the Duke having so great an Army of  Foreigners�察�so many ambitious and covetous Minds to be satisfied�察 �so many to be rewarded in Point of Gratitude�察�and after so great  a Concussion as always happens upon the Event of a Victory�察�it  must needs�察�upon those and such like Accounts�察�be evident to any  Man that considers Things of this Nature�察�that there were great  Outrages and Oppressions comwitted by the Victor's Soldiers and  their Officers�察�many false Accusations made against innocent  Persons�察�great Disturbances and Evictions of Possessions�察�many  right Owners being unjustly thrown out�察�and consequently many  Occupations and Usurpations of other Men's Rights and  Possessions�察�and a long while before those Things could be  reduced to any quiet and regular Settlement。        These general Observations being premised�察�we will now see  what de Facto was done in Relation to Men's Possessions�察�in  Consequence of this Victory of the Duke。        First�察�It is certain that he took into his Hands all the  Demesn Lands of the Crown which were belonging to Edward the  Confessor at the Time of his Death�察�and avoided all the  Dispositions and Grants thereof made by Harold�察�during his short  Reign�察�and this might be one great End of his making that noble  Survey in the fourth year of his Reign�察�called generally  Doomsday´Read�察�in some Records�察�as Rot。 Winton�察�&c。 thereby to  ascertain what were the Possessions of the Crown in the Time of  the Confessor�察�and those he entirely resumed�此�And this is the  Reason why in some of our old Books it is said�察�Ancient Demesn is  that which was held by King William the Conqueror�察�and in others  'tis said�察�Ancient Demesn is that which was held by King Edward  the Confessor�察�and both true in their Kind�察�and in this Respect�察 �viz。 That whatsoever appeared to be the Confessor's at the Time  of his Death�察�was assumed by King William into his own  Possession。      Secondly�察�It is also certain�察�That no Person simply�察�and  quatenus an English Man�察�was dispossess'd of any of his  Possessions�察�and consequently their Land was not pretended unto  as acquired Jure Belli�察�which appears most plainly by the  following Evidences�察�viz。        First�察�That very many of those Persons that were possessed of  Lands in the Time of Edward the Confessor�察�and so returned upon  the Book of Doomsday�察�retain'd the same unto them and their  Descendants�察�and some of their Descendants retain the same  Possessions to this Day�察�which could not have been�察�if presently  Jure Belli ac Vicioriae universalis�察�the Lands of the English had  been vested in the Conqueror。 And again�察     �Secondly�察�We do find�察�that in all Times�察�even suddenly after  the Conquest�察�the Charters of the ancient Saxon Kings were  pleaded and allowed�察�and Titles made and created by them to  Lands�察�Liberties�察�Franchises and Regalities�察�affirm'd and  adjudg'd under William I。 Yea�察�when that Exception has been  offered�察�That by the Conquest those Charters had lost their  Force�察�yet those Claims were allowed as in 7 E。 3。 Fines�察�as  mentioned by Mr Selden�察�in his Notes upon Eadmerus�察�which could  not be�察�if there had been such a Conquest as had vested all Mens  Rights in the Conqueror。      Thirdly�察�Many Recoveries were had shortly after this  Conquest�察�as well by Heirs as Successors of the Seisin of their  Predecessors before the Conquest。 We shall take one or two  Instances for all�察�namely�察�that famous Record apud Pinendon�察�by  the Archbishop of Canterbury�察�in the Time of King William I of  the Seisin and Title of his Predecessors before the Conquest�此�See  the whole Process and Proceedings thereupon in the End of Mr  Selden's Notes upon Eadmerus�察�and see Spelman's Glossary�察�Title  Drenches。 Upon these Instances�察�and much more that might be  added�察�it is without Contradiction�察�That the Rights and  Inheritances of the English qua Tales�察�were not abrogated or  impeach'd by this Conquest�察�but continued notwithstanding the  same�察�for�察�as is before observ'd�察�it was Jure Belli quoad Regem�察 �sed non quoad Populum。      But to descend to some Particulars�此�The English Persons that  the Conqueror had to deal with�察�were of Three Kinds�察�viz。 First�察 �Such as adhered to him aginst Harold the Usurper�察�and�察�without  all Question�察�those continued the Possession of their Lands�察�and  their Possessions were rather increased by him�察�than any way  diminished。 Secondly�察�Such as adhered to Harold�察�and opposed the  Duke�察�and fought against him�察�and doubtless�察�as to those�察�the  Duke after his Victory used his Power�察�and dispossess'd them of  their Estates�此�Which Thing is usual upon all Conclusions and  Events of this Kind�察�upon a double Reason�察�1st�察�To secure himself  against the Power of those that oppos'd him�察�and to weaken them  in their Estates�察�that they should not afterwards be enabled to  make Head against him。 And�察�2dly�察�To gratify those that assisted  him�察�and to reward their Services in that Expedition�察�and to make  them firm to his Interest�察�which was now twisted with their own�此 �For it can't be imagined�察�but that the Conqueror was assisted  with a great Company of Foreigners�察�some that he favour'd�察�some  that had highly des

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