the history of the common law of england-第15部分
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ly introduce some of the Norman Laws and Customs insensibly into this Kingdom： And to that End the Conqueror did industriously mingle the English and Normans together； shuffling the Normans into English Possessions here； and putting the English into Possessions in Normandy； and making Marriages among them； especially between the Nobility of both Nations。 This gave the English a Suspicion； that they should suddenly have a Change of their Laws before they were aware of it。 But it fell out much better： For first； there arising some Danger of a Defection of the English； countenanced by the Archbishop of York in the North； and Frederick； Abbot of St。 Albans in the South； the King； by the Perswasions of Lanfrank； Archbishop of Canterbury； 〃Probonopacis apud Berkhamstead juravit super Animas reliquias Sancti Altani tactisque Sacrosanctis Evangelis （ministrante juramento Abbate Frederico） ut bonas & approbatas antiquas Regni Leges quas sancti & pii Angliae Reges ejus Antecessores； & maxime Rex Edvardus statuit inviolabiliter observaret； Et sic pacificati ad propria laeti recesserunt。〃 Vide Mat。 Paris； in Vita Frederici Abbatis Sancti Albani。 But altho' now； upon this Capitulation； the ancient English Laws were confirm'd； and namely； the Laws of St。 Edward the Confessor； yet it appeared not what those Laws were： And therefore； in the Fourth Year of his Reign； we are told by Hoveden； in a Digression he makes in his History under the Reign of King Hen。 2 and also in the Chronicle of Lithfield。 Willielmus Rex； Anno quarto Regni sui Consilio Baronum suorum fecit Summonari per Universos Consulatos Angliae； Anglos Nobiles & Sapientes & sua Lege eruditos ut eorum jura & consuetudines ab ipsis audiret； Electis igitur de singulis totius Patriae Comitatibus viri duodecim； jurejurando confirmaverunt ut quoad possint recto tramite neque ad Dextram neque ad Sinistram partem divertentes Legum suarum consuetudinem & sancitam patef acerent。 nihil praetermittentes nihil addentes； nihil praevaricando mutantes； &c。 And then sets down many of those ancient Laws approv'd and confirm'd by the King； and Communi Concilium；。 wherein it appears； that he seems to be most pleased with those Laws that came under the Title of Lex Danica； as most consonant to the Norman Customs。 Quo auditu mox universi compatrioti qui Leges dixerint Tristes effecti； uno ministerio deprecati sunt quatenus permitteret Leges sibi proprias & consuetudines antiquas habere in quibus vi％erunt Patres； & ipsi in iis nati & nutriti sunt； quia durum Valde sibi foret suscipere Leges ignotas； & judicare de iis quae nesciebant； Rege vero ad flectendum ingrato existente； tandem eum persecuti sunt deprecantes quatenus pro Anima Regis Edvardi qui es sub diem suum eis concesserat Barones & Regnum & cujus orant Leges non aliorum extraneorum cogere quam sub Legibus perseverare patriis； Unde Consilio habito Praecatui Baronem tandem acquievit； &c。 Gervasius Tilburiensis； who lived near that Time； speaks shortly； and to the Purpose； thus： 〃Propositis Legibus Anglicanis secundum triplicitam earum Distinctionem； i。e。 Merchenlage； Westsaxon…lage； & Dane…lage quasdam autem approbans illis transmarinas Legis Neustriae quas ad Regni Pacem tuendam efficasissime videbantur adjecit。〃 So that by this； there appears to have been a double Collection of Laws； viz。 First； The Laws of the Confessor； which were granted and confirmed by King William； and are also called the Laws of King William； which are transcribed in Mr Selden's Notes upon Eadmerus； Page 173。 the Title whereof is thus； viz。 〃Hae sunt Leges & Consuetudines quas Willielmus Rex concessit universo populo Angliae post subactam Terram eadem sunt quas Edvardus Rex cognatus ejus observavit ante eum〃： And these seem to be the very same that Ingulfus mentions to have been brought from London； and placed by him in the Abbey of Crowland in the fifteenth year of the same King William； attuli eadem Vice mecum Londini in meum Monasterium Legum Volumen； &c。 Secondly； There were certain additional Laws at that Time establish'd； which Gervasius Tilburiensis calls； Leges Neustriae quae ifficacissimae vidibantur ad tuendam Regni Pacim； which seems to be included in those other Laws of King William transcribed in the same Notes upon Eadmerus； Pag。 189； 193； &c。 which indeed were principally designed for the Establishment of King William in the Throne； and for the securing of the Peace of the Kingdom； especially between the English and Normans； as appears by these Instances； viz。 The Law de Murdro； or the Common Fine for a Norman or Frenchman slain； and the offender not discovered： The Law for the Oath of Allegiance to the King： The Introduction of the Trial by single Combat； which many Learned Men have thought was not in Use here in England before Will。 1。 And the Law touching Knights Service； which Bracton； Lib。 2 supposes to be introduced by the Conqueror； viz。 Quod omnes Comites Milites & Servientes & universi liberi homines totius Regni habeant & teneant se semper bene in Armis & in Equis ut decet & quod sint semper prompti & bene parati ad Servitium suum integrum nobis explendum & peragendum cum semper Opus affuerit secundum quod nobis de F eodo debent & Tenementis suis de Jure facere & sicut illis statuimus per Commune Concilium totius Regini praedicti； & illis dedimus & concessimus in Feodo jure haereditario。 Wherein we may observe； that this Constitution seems to point at Two Things； viz。 The assizing of Men for Arms； which was frequent under the Title De assidenda ad Arma； and is afterwards particularly enforc'd and rectified by the Statute of Winton； 13 Ed。 I and next of Conventional Services reserved by Tenures upon Grants made out of the Crown or Knights Service； called in Latin； Forinsecum； or Regale Servitium。 And Note； That these Laws were not imposed ad Libitum Regis； but they were such as were settled Per Commune Concilium Regni； and possibly at that very Time when Twelve out of every County were return'd to ascertain the Confessor's Laws； as before is mentioned out of Hoveden； which appears to be as sufficient and effectual a Parliament as ever was held in England。 By all which it is apparent； First； That William I did not pretend； nor indeed could he pretend； notwithstanding this Nominal Conquest； to alter the Laws of this Kingdom without common Consent in Communi Concilio Regni； or in Parliament。 And； Secondly； That if there could be any Pretence of any such Right； or if in that turbulent Time something of that Kind had happened； yet by all those solemn Capitulations； Oaths； and Concessions； that Pretence was wholly avoided； and the ancient Laws of the Kingdom settled； and were not to be altered； or added unto； at the Pleasure of the Conqueror； without Consent in Parliament。 In the Seventeenth Year of his Reign； （or as some say； the Fifteenth） he began that great Survey； recorded in Two Books； called； The Great Doomsday Book； and Little Doomsday Book； and finished it in the Twentieth year of his Reign； Anno Domini 1086； as appears by the learned Preface of Mr Selden to Eadmerus； and indeed by the Books themselves。 The Original Record of which is still extant； remaining in the Custody of the Vice…Chamberlains of his Majesty's Exchequer。 This Record contains a Survey of all the ancient Demesn Lands of the Kingdom； and contains in many Manors； not only the Tenants Names； with the Quantity of Lands and their Values； but likewise the Number and Quality of the Residents or Inhabitants； with divers Rights； Privileges； and Customs claimed by them； and being made and found by Verdict or Presentment of Juries in every Hundred or Division upon their Oaths； there was no receeding from； or avoiding what was written in this Record： And therefore as Gervasius Tilburiensis says； Page 41。 〃Ob hoc nos eundem Librum Judiciarium Nominamus； Non quod in eo de propositis aliquibus dubiis seratur sententia； sed quod ab eo sicut ab ultimo Die Judicii non licet ulla ratione descedere。〃 And thus much shall suffice touching the Fifth General Head； namely； of the Progress made after the Coming…in of King William； relating to the Laws of England； their Establishment； Settlement； and Alteration。 If any one be minded to see what this Prince did in reference to Ecclesiasticks； let him consult Eadmerus； and the learned Notes of Mr。 Selden upon it； especially Page 1 67； 168； &c。 where he shall find how this King divided the Episcopal Consistory from the County Court； and how he restrain'd the Clergy and their Courts from exercising ecclesiastical Jurisdiction upon Tenants in Capite。 VI。 Concerning the Parity or Similitude of the Laws of England and Normandy； and the Reasons thereof The great Similitude that in many Things appears hetween the Laws of England； and those of Normandy； has given some Occasion to such as consider not well of Things； to suppose that this happened by the Power of the Conqueror； in conforming the Laws of this Kingdom to those of Normandy； and therefore will needs have it； that our English Laws still retain the Mark of that Conquest； and that we received our Laws from him as from a Conqueror； than which Assertion； （as it appears even by what has before been said） nothing can be more untrue。 Besides； if there were any Laws derived from the Normans to us； as perhaps there might be some； yea； possibly many； yet it no more concludes the Position to be true； that we received such Laws Per Modum Conquestus； than if the Kingdom of England should at this Day take some of the Laws of Persia； Spain； Egypt； or Assyria； and by Authority of Parliament settle them here。 Which tho' they were for their Matter Foreign； yet their obligatory Power； and their formal Nature or Reason of becoming Laws here； were not at all due to those Countries； whose Laws they were； but to the proper and intrinsical Authority of this Kingdom by which they were received as； or enacted into； Laws： And therefore； as no Law that is Foreign； binds here in England； till it be received and authoritatively engrafted into the Law of England； so there is no Reason in common
