the history of the common law of england-第18部分
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ter Part thereof borrowed from ours； rather than ours from them； and the Similitude of the Laws of both Countries did in greater Measure arise from their Imitation of our Laws； rather than from our Imitation of theirs； though there can't be denied a Reciprocal Imitation of each others Laws was； in some Measure at least； had in both Dominions： And these Two Things being premised； I descend to the Means whereby this Parity or Similitude of the Laws of both Countries did arise； as follow； viz。 First； Mr Camden and some others have thought； there was ever some Congruity between the ancient Customs of this Island and those of the Country of France； both in Matters Religious and Civil； and tells us of the ancient Druids； who were the common Instructors of both Countries。 Gallia Causidicos docuit facunda Britannos： And some have thought； that anciently both Countries were conjoined by a small Neck of Land； which might make an easier Transition of the Customs of either Country to the other； but those Things are too remote Conjectures； and we need them not to solve the Congruity of Laws between England and Normandy。 Therefore； Secondly； It seems plain； that before the Normans coming in Way of Hostility； there was a great Intercourse of Commerce and Trade； and a mutual Communication； between those Two Countries； and the Consanguinity between the Two Princes gave Opportunities of several Interviews between them and their Courts in each others Countries： And it is evident by History； that the Confessor； before his Accession to the Crown； made a long Stay in Normandy； and was there often； which of Consequence must draw many of the English thither； and of the Normans hither； all which sight be a Means of their mutual Understanding of the Customs and Laws of each others Country； and gave Opportunities of Incorporating and ingrafting divers of them into each other； as they were found useful or convenient； and therefore the Author of the Prologue to the Grand Custumier thinks it more probable； That the Laws of Normandy were derived from England； than that ours were derived from thence。 Thirdly； 'Tis evident； that when the Duke of Normandy came in； he brought over a great Multitude； not only of ordinary Soldiers； but of the best of the Nobility and Gentry of Normandy； hither they brought their Families； Language and Customs； and the Victor used all Art and Industry to incorporate them into this Kingdom： And the more effectually to make both People become one Nation； he made Marriages between the English and Normans； transplanting many Norman Families hither； and many English Families thither； he kept his Court sometimes here； and sometimes there； and by those Means insensibly derived many Norman Customs hither； and English Customs thither； without any severe Imposition of Laws on the English as Conqueror： And by this Method he might easily prevail to bring in； even without the Peoples Consent； some Customs and Laws that perhaps were of Foreign Growth； which might the more easily be done； considering how in a short Time the People of both Nations were intermingled； they were singled in Marriages； in Families； in the Church； in the State； in the Court； and in Councils； yea； and in Parliaments in both Dominions； though Normandy became； as it were； an Appendix to England； which was the nobler Dominion； and received a greater Conformity of their Laws to the English； than they gave to it。 Fourthly； But the greatest Means of the Assimilation of the Laws of both Kingdoms was this： The Kings of England continued Dukes of Normandy till King John's Time； and he kept some Footing there notwithstanding the Confiscation thereof by the King of France； as aforesaid； and during all this Time； England； which was an absolute Monarch； had the Prelation or Preference before Normandy； which was but a Feudal Dutchy； and a small Thing in respect of England； and by this Means Normandy became； as it were； an Appendant to England； and successively received its Laws and Government from England； which had a greater Influence on Normandy than that could have on England； insomuch that oftentimes there issued Precepts into Normandy to summon Persons there to answer in Civil Causes here； yea； even for Lands and Possessions in Normandy； as Placito 1 Johannis； a Precept issued to the Seneschal of Norsandy； to summon Robert Jeronymus； to answer to John Marshal； in a Plea of Land； giving him 40 Days Warning； to which the Tenant appeared； and pleaded a Recovery in Normandy： And the like Precept issued for William de Bosco； against Jeoffry Rusham； for Lands in Corbespine in Normandy。 And on the other Side； Trin。 14 Johannis； in a Suit between Francis Borne and Thomas Adorne； 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； for the Honour of Bonn in Normandy； and for certain Lands in England； whereof the Lands in Question were Parcel； before the Seneschal of Normandy； Anno 1099。 But it was excepted against； as an insufficient Fine； and varying in Form from other Fines； and therefore the Defendant relied upon it as a Release。 By these； and many the like Instances； it appears as follows； viz。 First； That there was a great Intercourse between England and Normandy before and after the Conqueror； which might give a great Opportunity of an Assimilation and Conformity of the Laws in both Countries。 Secondly； That a much greater Conformation of Laws arose after the Conqueror； during the Time that Normandy was enjoyed by the Crown of England； than before。 And Thirdly； That this Similitude of the Laws of England and Normandy was not by Conformation of the Laws of England to those of Normandy； but by Conformation of the Laws of Normandy to those of England； which now grew to a great Height； Perfection and Glory； so that Normandy became but a Perquisite or Appendant of it。 And as the Reason of the Thing speaks it； so the very Fact itself attests it。 For First； It is apparent； That in Point of Limitation in Actions Ancestral； from the Time of the Coronation of King Henry 2 it was anciently so here in England in Glanville's Time； and was transmitted from hence into Normandy； for it is no way reasonable to suppose the contrary； since Glanville mentions it to be enacted here； Concilio procerum； and though this be but a single Point； or Instance； yet the Evidence thereof makes out a Criterion； or probable Indication； that many other Laws were in like Manner so sent hence into Normandy。 Secondly； It appears； That in the Succession of the Kings of England； from King William I to King Henry 2 the Laws of England received a great Improvement and Perfection； as will plainly appear from Glanville's Book； written in the Time of King Henry 2 especially if compared with those Sums or Collections of Laws； either of Edward the Confessor； William I or Henry I whereof hereafter。 So that it seems； by Use； Practice； Commerce； Study and Improvement of the English People； they arrived in Henry 2d's Time to a greater Improvement of the Laws； and that in the Time of King Richard I and King John； they were more perfected； as may be seen in the Pleadings； especially of King John's Time： And tho' far inferior to those of the Times of Succeeding Kings； 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； with the Tract of Glanville； he will plainly find that the Norman Tract of Laws followed the Pattern of Glanville； and was writ long after it； when possibly the English Laws were yet more refined and more perfect； for it is plain beyond Contradiction； that the Collection of the Customs and Laws of Normandy was made after the Time of King Henry 2； for it mentions his Coronation； and appoints it for the Limitation of Actions Ancestrel； which must at least be 30 years after； nay； the Contumier appears to have been made after the Act of Settlement of Normandy in the Crown of France； for therein is specified the Institution of Philip King of France； 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； 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； it might have been a Probability that their Laws； being so near like ours； might have been transplanted from thence hither； but the Case is visibly otherwise； for the Contumier is a Collection after the Time of King Richard I； yea； after the Time of King John； and possibly after Henry 3d's Time； when it had received several Repairings； Amendments and Polishings； under the several Kings of England； William I； William 2； Henry I； King Steven； Henry 2； Richard I； and King John； who were either knowing themselves in the Laws of England； 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； as appears by that excellent Collection of Glanville； written even in Henry 2's Time； when yet there were near 30 years to acquire unto a further Improvement before Normandy was lost； so from the Laws of England thus modelled； polished and perfected； the same Draughts were drawn upon the Laws of Normandy； which received the fairest Lines from the Laws of England； as they stood at least in the Beginning of King John's Time； and were in Effect in a great Measure the Defloration of the English Laws； and a Transcript of them； though mingled and interlarded with many particular Laws and Customs of their own； 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； until the Time of King Edward 2 That which precedes in the Two foregoing Chapters； gives us some Account of the Laws of England； 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； unt
