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the history of the common law of england-及18何蛍

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ter Part thereof borrowed  from ours�察�rather than ours from them�察�and the Similitude of the  Laws of both Countries did in greater Measure arise from their  Imitation of our Laws�察�rather than from our Imitation of theirs�察 �though there can't be denied a Reciprocal Imitation of each  others Laws was�察�in some Measure at least�察�had in both Dominions�此 �And these Two Things being premised�察�I descend to the Means  whereby this Parity or Similitude of the Laws of both Countries  did arise�察�as follow�察�viz。        First�察�Mr Camden and some others have thought�察�there was ever  some Congruity between the ancient Customs of this Island and  those of the Country of France�察�both in Matters Religious and  Civil�察�and tells us of the ancient Druids�察�who were the common  Instructors of both Countries。 Gallia Causidicos docuit facunda  Britannos�此�And some have thought�察�that anciently both Countries  were conjoined by a small Neck of Land�察�which might make an  easier Transition of the Customs of either Country to the other�察 �but those Things are too remote Conjectures�察�and we need them not  to solve the Congruity of Laws between England and Normandy。  Therefore�察     �Secondly�察�It seems plain�察�that before the Normans coming in  Way of Hostility�察�there was a great Intercourse of Commerce and  Trade�察�and a mutual Communication�察�between those Two Countries�察 �and the Consanguinity between the Two Princes gave Opportunities  of several Interviews between them and their Courts in each  others Countries�此�And it is evident by History�察�that the  Confessor�察�before his Accession to the Crown�察�made a long Stay in  Normandy�察�and was there often�察�which of Consequence must draw  many of the English thither�察�and of the Normans hither�察�all which  sight be a Means of their mutual Understanding of the Customs and  Laws of each others Country�察�and gave Opportunities of  Incorporating and ingrafting divers of them into each other�察�as  they were found useful or convenient�察�and therefore the Author of  the Prologue to the Grand Custumier thinks it more probable�察�That  the Laws of Normandy were derived from England�察�than that ours  were derived from thence。      Thirdly�察�'Tis evident�察�that when the Duke of Normandy came  in�察�he brought over a great Multitude�察�not only of ordinary  Soldiers�察�but of the best of the Nobility and Gentry of Normandy�察 �hither they brought their Families�察�Language and Customs�察�and the  Victor used all Art and Industry to incorporate them into this  Kingdom�此�And the more effectually to make both People become one  Nation�察�he made Marriages between the English and Normans�察 �transplanting many Norman Families hither�察�and many English  Families thither�察�he kept his Court sometimes here�察�and sometimes  there�察�and by those Means insensibly derived many Norman Customs  hither�察�and English Customs thither�察�without any severe  Imposition of Laws on the English as Conqueror�此�And by this  Method he might easily prevail to bring in�察�even without the  Peoples Consent�察�some Customs and Laws that perhaps were of  Foreign Growth�察�which might the more easily be done�察�considering  how in a short Time the People of both Nations were intermingled�察 �they were singled in Marriages�察�in Families�察�in the Church�察�in  the State�察�in the Court�察�and in Councils�察�yea�察�and in Parliaments  in both Dominions�察�though Normandy became�察�as it were�察�an  Appendix to England�察�which was the nobler Dominion�察�and received  a greater Conformity of their Laws to the English�察�than they gave  to it。      Fourthly�察�But the greatest Means of the Assimilation of the  Laws of both Kingdoms was this�此�The Kings of England continued  Dukes of Normandy till King John's Time�察�and he kept some Footing  there notwithstanding the Confiscation thereof by the King of  France�察�as aforesaid�察�and during all this Time�察�England�察�which  was an absolute Monarch�察�had the Prelation or Preference before  Normandy�察�which was but a Feudal Dutchy�察�and a small Thing in  respect of England�察�and by this Means Normandy became�察�as it  were�察�an Appendant to England�察�and successively received its Laws  and Government from England�察�which had a greater Influence on  Normandy than that could have on England�察�insomuch that  oftentimes there issued Precepts into Normandy to summon Persons  there to answer in Civil Causes here�察�yea�察�even for Lands and  Possessions in Normandy�察�as Placito 1 Johannis�察�a Precept issued  to the Seneschal of Norsandy�察�to summon Robert Jeronymus�察�to  answer to John Marshal�察�in a Plea of Land�察�giving him 40 Days  Warning�察�to which the Tenant appeared�察�and pleaded a Recovery in  Normandy�此�And the like Precept issued for William de Bosco�察 �against Jeoffry Rusham�察�for Lands in Corbespine in Normandy。      And on the other Side�察�Trin。 14 Johannis�察�in a Suit between  Francis Borne and Thomas Adorne�察�for certain Lands in Ford。 The  Defendant pleaded a Concord made in Normandy in the Time of King  Richard I upon a Suit there before the King�察�for the Honour of  Bonn in Normandy�察�and for certain Lands in England�察�whereof the  Lands in Question were Parcel�察�before the Seneschal of Normandy�察 �Anno 1099。 But it was excepted against�察�as an insufficient Fine�察 �and varying in Form from other Fines�察�and therefore the Defendant  relied upon it as a Release。        By these�察�and many the like Instances�察�it appears as follows�察 �viz。      First�察�That there was a great Intercourse between England and  Normandy before and after the Conqueror�察�which might give a great  Opportunity of an Assimilation and Conformity of the Laws in both  Countries。 Secondly�察�That a much greater Conformation of Laws  arose after the Conqueror�察�during the Time that Normandy was  enjoyed by the Crown of England�察�than before。 And Thirdly�察�That  this Similitude of the Laws of England and Normandy was not by  Conformation of the Laws of England to those of Normandy�察�but by  Conformation of the Laws of Normandy to those of England�察�which  now grew to a great Height�察�Perfection and Glory�察�so that  Normandy became but a Perquisite or Appendant of it。      And as the Reason of the Thing speaks it�察�so the very Fact  itself attests it。 For        First�察�It is apparent�察�That in Point of Limitation in Actions  Ancestral�察�from the Time of the Coronation of King Henry 2 it was  anciently so here in England in Glanville's Time�察�and was  transmitted from hence into Normandy�察�for it is no way reasonable  to suppose the contrary�察�since Glanville mentions it to be  enacted here�察�Concilio procerum�察�and though this be but a single  Point�察�or Instance�察�yet the Evidence thereof makes out a  Criterion�察�or probable Indication�察�that many other Laws were in  like Manner so sent hence into Normandy。      Secondly�察�It appears�察�That in the Succession of the Kings of  England�察�from King William I to King Henry 2 the Laws of England  received a great Improvement and Perfection�察�as will plainly  appear from Glanville's Book�察�written in the Time of King Henry 2  especially if compared with those Sums or Collections of Laws�察 �either of Edward the Confessor�察�William I or Henry I whereof  hereafter。      So that it seems�察�by Use�察�Practice�察�Commerce�察�Study and  Improvement of the English People�察�they arrived in Henry 2d's  Time to a greater Improvement of the Laws�察�and that in the Time  of King Richard I and King John�察�they were more perfected�察�as may  be seen in the Pleadings�察�especially of King John's Time�此�And  tho' far inferior to those of the Times of Succeeding Kings�察�yet  they are far more regular and perfect than those that went before  them。 And now if any do but compare the Contumier of Normandy�察 �with the Tract of Glanville�察�he will plainly find that the Norman  Tract of Laws followed the Pattern of Glanville�察�and was writ  long after it�察�when possibly the English Laws were yet more  refined and more perfect�察�for it is plain beyond Contradiction�察 �that the Collection of the Customs and Laws of Normandy was made  after the Time of King Henry 2�察�for it mentions his Coronation�察 �and appoints it for the Limitation of Actions Ancestrel�察�which  must at least be 30 years after�察�nay�察�the Contumier appears to  have been made after the Act of Settlement of Normandy in the  Crown of France�察�for therein is specified the Institution of  Philip King of France�察�for appointing the Coronation of King  Richard I for the Limitation of Actions which was after the said  Philip's full Possession of Normandy。      Indeed�察�if those Laws and Customs of Normandy had been a  Collection of the Laws they had had there before the coming in of  King William I�察�it might have been a Probability that their Laws�察 �being so near like ours�察�might have been transplanted from thence  hither�察�but the Case is visibly otherwise�察�for the Contumier is a  Collection after the Time of King Richard I�察�yea�察�after the Time  of King John�察�and possibly after Henry 3d's Time�察�when it had  received several Repairings�察�Amendments and Polishings�察�under the  several Kings of England�察�William I�察�William 2�察�Henry I�察�King  Steven�察�Henry 2�察�Richard I�察�and King John�察�who were either  knowing themselves in the Laws of England�察�or were assisted with  a Council that were knowing therein。      And as in this Tract of Time the Laws of England received a  great Advance and Perfection�察�as appears by that excellent  Collection of Glanville�察�written even in Henry 2's Time�察�when yet  there were near 30 years to acquire unto a further Improvement  before Normandy was lost�察�so from the Laws of England thus  modelled�察�polished and perfected�察�the same Draughts were drawn  upon the Laws of Normandy�察�which received the fairest Lines from  the Laws of England�察�as they stood at least in the Beginning of  King John's Time�察�and were in Effect in a great Measure the  Defloration of the English Laws�察�and a Transcript of them�察�though  mingled and interlarded with many particular Laws and Customs of  their own�察�which altered the Features of the Original in many  Points。      VII。 Concerning the Progress of the Laws of England after the  Time of King William I�察�until the Time of King Edward 2        That which precedes in the Two foregoing Chapters�察�gives us  some Account of the Laws of England�察�as they stood in and after  the great Change which happened under King William I commonly  called The Conqueror。 I shall now proceed to the History thereof  in the ensuing Times�察�unt

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