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