the history of the common law of england-第16部分
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be received and authoritatively engrafted into the Law of England； so there is no Reason in common Prudence and Understanding for any Man to conclude； that no Rule or Method of Justice is to be admitted in a Kingdom； tho' never so useful or beneficial； barely upon this Account； That another People entertain'd it； and made it a Part of their Laws before us。 But as to the Matter itself； I shall consider； and enquire of the following Particulars； viz。 1。 How long the Kingdom of England and Dutchy of Normandy stood in Conjunction under one Governor。 2。 What Evidence we have touching the Laws of Normandy； and of their Agreement with ours。 3。 Wherein consists that Parity or Disparity of the English and Norman Laws。 4。 What might be reasonably judged to be the Reason and Foundation of that Likeness； which is to be found between the Laws of both Countries。 First； Touching the Conjunction under one Governor of England and Normandy； we are to know； That the Kingdom of England and Dutchy of Normandy were de facto in Conjunction under these Kings； viz。 William I； William 2； Henry I； King Stephen； Henry 2； and Richard I who； dying without Issue； left behind him Arthur Earl of Britain； his Nephew； only Son of Geoffry Earl of Britain； second Brother of Richard I and John the youngest Brother to Richard I who afterward became King of England by usurping the Crown from his Nephew Arthur。 But the Princes of Normandy still adhered to Arthur； 〃sicut Domino Ligeo suo dicentes Judicium & Consuetudinem esse illarum Regionum ut Arthurus Filius； Fratris Senioris in Patrimonio sido debito & haereditate Avunculo suo succedat eodem jure quod Gaulfridus Pater ejus esset habiturus si Regi Richardo defuncto supervixisset。〃 And therein they said true； and the Laws of England were the same； Witness the Succession of Richard 2 to Edward 3 also the Laws of Germany； and the ancient Saxons were accordant hereunto； and it was accordingly decided in a Trial by Battle； under Otho the Emperor； as we are told by Radulphus； de Diceto sub Anno 945。 And such are the Laws of France to this Day； Vide Chopimus de Domanio Franciae； Lib。 2。 Tit。 12。 and such were the ancient Customs of the Normans； as we are told by the Grand Contumier； cap。 99。 And such is the Law of Normandy； and of the Isles of Jersey and Guernsey （which some Time were Parcel thereof） at this Day； as is agreed by Terrier； the best Expositor of their Customs； Lib。 2。 cap。 2。 And so it was adjudg'd within my Remembrance in the Isle of Jersey； in a Controversy there； between John Perchard and John Rowland； for the Goods and Estate of Peter Perchard。 But nevertheless； John the Uncle of Arthur came by Force and Power； Et Rotomagum Gladio Diucatus Normanniae accinctus est Per Ministerium Kotomagensis Archiepiscopi； as Mat。 Paris says； and shortly after also usurped the Crown of England； and imprisoned his Nephew Arthur； who died in the year 1202； being as was supposed murthered by his said Uncle； Vide Mat。 Paris； in fine Regni Regis Rici' Primi； and Walsingham in his Ypodigma Neustriae sub eodem Anno 1202。 And to countenance his Usurpation in Normandy； and to give himself the better Pretence of Title； he by his Power so far prevailed there； that he obtained a Change of the Law there； purely to serve his Turn； by transferring the Right of Inheritance from the Son of the elder Brother to the younger Brother； as appears by the Grand Contumier； cap。 99。 But withal； the Gloss takes Notice of it as an Innovation； and brought in by Men of Power； tho' it mentions not the particular Reason； which was aforesaid。 The King of France （of whom the Dutchy of Normandy was holden） highly resented the Injury done by King John to his Nephew Arthur； who； as was strongly suspected； came not fairly to his End。 He summoned King John as Duke of Normandy into France； to give an Account of his Actions； and upon his Default of appearing； he was by King Philip of France forejudged of the Said Dutchy； Vide Mat。 Paris； in initio Regni Johannis； and this Sentence was so effectually put in Execution； that in the year 1204； Mat Paris tells us； 〃Tota Normannia； Turania Andegavia； & Pictavia cum Civitatibus & Castellis & Rebus aliis praeter Rupellam； Toar； & Mar Castellam sunt in Regis Francorum Dominium devoluta。〃 But yet he retained； tho' with much Difficulty； the Islands of Jersey and Guernsey； and the uninterrupted Possession of some Parts of Normandy for some Time after； and both he and and his Son King Hen。 3 kept the Stile and Title of Dukes of Normandy； &c。 'till the 43d year of King Hen。 3 at which Time for 3000 Livres Tournois； and upon some other Agreements； he resigned Normandy and Anjou to the King of France； and never afterwards used that Title； as appears by the Continuation of Mat。 Paris； sub Anno 1260； only the four Islands； some Time Parcel of Normandy； were still； and to this Day； are enjoyed by the Crown of England； viz。 Jersey； Guernsey； Sarke； and Aldernay； tho' they are still governed under their ancient Norman Laws。 Secondly； As to the Second Enquiry； What Evidence we have touching the Laws of Normandy： The best； and indeed only common Evidence of the ancient Customs and Laws of Normandy； is that Book which is called； The Grand Contumier of Normandy； which in later years has been illustrated； not only with a Latin and French Gloss； but also with the Commentaries of Terrier； a French Author。 This Book does not only contain many of the ancienter Laws of Normandy； but most plainly it contains those Laws and Customs which were in Use here in the Time of King Hen。 2； King Rich。 I and King John； yea； and such also as were in Use and Practice in that Country after the Separation of Normandy from the Crown of England； for we shall find therein； in their Writs and Processes； frequent Mention of King Rich。 I and the entire Text of the 110th Chapter thereof is an Edict of Philip King of France； after the Severance of Normandy from the Crown of England。 （I speak not of those additional Edicts which are annex'd to that Book of a far later Date。） So that we are not to take that Book as a Collection of the Laws of Normandy； as they stood before the Accession or Union thereof to the Crown of England； but as they stood long after； under the Time of those Dukes of Normandy that succeeded William I and it seems to be a Collection made after the Time of K。 Hen。 3 or at least after the Time of K。 John； and consequently it states their Laws and Customs as they stood in Use and Practice about the Time of that Collection made； which observation will be of Use in the ensuing Discourse。 Thirdly； Touching the Third Particular； viz。 The Agreement and Disparity of the Laws of England and Normandy。 It is very true； we shall find a great Suitableness in their Laws； in many Things agreeing with the Laws of England； especially as they stood in the Time of King Hen。 2 the best Indication whereof we have in the Collection of Glanville； the Rules of Discents； of Writs； of Process； of Trials； and some other Particulars； holding a great Analogy in both Dominions； yet not without their Differences and Disparities in many Particulars； viz。 First； Some of those Laws are such as were never used in England； for Instance； There was in Normandy a certain Tribute paid to the Duke； called Monya； i。 e。 a certain Sum yielded to him （in Consideration that he should not alter their Coin） payable every three years； Vide Contumier； cap。 15。 But this Payment was never admitted in England； indeed it was taken for a Time； but was ousted by the first Law of King Hen。 1 as an Usurpation。 Again； by the Custom of Normandy； the Lands descended to the Bastard Eigne； born before Marriage of the same Woman； by whom the same Man had other Children after Marriage； Contumier； cap。 27。 But the Laws of England were always contrary； as appears by Glanville； Lib。 7。 cap。 13。 And the Statute of Merton； which says； Nolumus Leges Anglicans Mutare； &c。 Again； by the Laws of Normandy； if a Man died without Issue； or Brother； or Sister； the Lands did descend to the Father； Contumier； cap。 15。 Terrier； cap。 2。 But in England； this Law seems never to have been used。 2dly； Again； Some Laws were used in Normandy； which were in Use in England long before the supposed Norman Conquest； and therefore could in no Possibility have their original Force； or any binding Power here upon that Pretence： For Instance； it appears by the Custumier of Normandy； that the Sheriff of the County was an Annual Officer； and so 'tis evident he was likewise in England before the Conquest： And among the Laws of Edward the Confessor； it is provided； 〃Quod Aldermanni in Civitatibus eandem habeant Dignitatem qualem habent Ballivi hundredorum in Ballivis suis sub Vicecomitem〃： Again； Wreck of the Sea； and Treasure Trove was a Prerogative belonging to the Dukes of Normandy； as appears by the Contumier； cap。 17； & 18。 and so it was belonging to the Crown of England before the Conquest； as appears by the Charter of Edward the Confessor to the Abby or Ramsey of the Manor of Ringstede； cum toto ejectu Maris quod Wreccum dicitur； and the like； vide ibid。 of Treasure Trove； & vide the Laws of Edward the Confessor； cap。 14。 So Fealty； Homage； and Relief； were incident to Tenures by the Laws of Normandy； Vide Contumier； cap。 29。 And so they were in England before the Conquest； as appears by the Laws of Edward the Confessor； cap。 35。 and the Laws of Canutus； mentioned by Brompton cap。 8。 So the Trial by Jury of Twelve Men was the usual Trial among the Normans in most Suits； especially in Assizes； & Juris Utrums； as appears by the Contumier； cap。 92； 93； & 94。 and that Trial was in Use here in England before the Conquest； as appears in Brompton among the Laws of King Elthred； cap。 3。 which gives some Specimen of it； viz。 〃Habeant placita in singulis Wapentachiis & exeant Seniores duodecim Thani vel Praepositus cum iis & jurent quod neminem innocentem accusare nec Noxium concelare。〃 3dly； Again； In some Things； tho' both the Law of Normandy and the Law of England agreed in the Fact； and in the Manner of Proceeding； yet t
