the history of the common law of england-第19部分
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ommonly called The Conqueror。 I shall now proceed to the History thereof in the ensuing Times； until the Reign of King Edward 2。 William I having Three Sons； Robert the eldest； William the next； and Henry the youngest； disposed of the Crown of England to William his second Son； and the Dutchy of Normandy to Robert his eldest Son； and accordingly William 2 commonly called； William Rufus； succeeded his Father in this Kingdom。 We have little memorable of him in relation to the Laws； only that he severely press'd and extended the Forest Laws。 Henry I； Son of William I and Brother of William 2 succeeded his said Brother in the Kingdom of England； and afterwards expelled his eldest Brother Robert out of the Dutchy of Normandy also。 He proceeded much in the Benefit of the Laws； viz。 First； He restored the Free…Election of Bishops and Abbots； which before that Time he and his Predecessors invested； Per Anniulum & Bacculum； yet reserving those Three Ensigns of the Patronage thereof； viz。 Conge d'Eslire； Custody of the Temporalties； and Homage upon their Restitution。 Vide Hoveden； in Vita sua。 But Secondly； The great Essay he made； was the composing an Abstract or Manual of Laws； wherein he confirm'd the Laws of Edward the Confessor； Cum illis Emendationibus quibus eam Pater meus emendavit Baronum suorum Concilio； and then adds his own Laws； some whereof seem to taste of the Canon Law。 The whole Collection is transcribed in the Red Book of the Exchequer； from whence it is now printed in the End of Lambard's Saxon Laws； and therefore not needfull to be here repeated。 They； for the most Part； contain a Model of Proceedings in the County Courts； the Hundred Courts； and the Courts Leet； the former to be held Twelve Times in the Year； the latter twice； and also of the Courts Baron。 These were the ordinary usual Courts； wherein Justice was then； and for a long Time after； most commonly administred； also they concern Criminal Proceedings； and the Punishment of Crimes； and some few Things touching Civil Actions and Interests； as in Chapter 70； directing Descents； viz。 Si quis sine Liberis decesserit Pater aut Mater ejus in Hereditatem succedant； vel Frater vel Soror； si Pater & Mater desint； si nec hos habeat； Frater vel Soror Patris vel Matris； & deinceps in quintum Genetalium； qui cum propiores in parentela sint hereditario Jure succedant； Et dum virilis sexus extiterit & haereditas ab inde sit Femina non haereditetur； primum Patris Feodum primogenitus Filius habeat。 Emptiones vero & deinceps Acquisitiones det cui magis velit； sed si Bockland habeat quam ei Parentes dederint； Mittat eam extra cognationem suam。 I have observ'd and inserted this Law； for Two Reasons； viz。 First； To justify what I before said； That the Laws of Normandy took the English Laws for their Pattern in many Things； Vide le Contumier； cap。 25； 26； 36； &c。 And Secondly； To see how much the Laws of England grew and increased in their Particularity and Application between this Time and the Laws of William I which in Chapter 36； has no more touching Descents but this； viz。 Si quis intestatus obierit； liberi ejus haereditatem equsliter dividant。 But Process of Time grafted thereupon； and made particular Provisions for particular Cases； and added Distributions and Subdivisions to those General Rules。 These Laws of King Henry I are a kind of Miscellany； made up of those ancient Laws； called； The Laws of the Confessor； and King William I and of certain Parts of the Canon and Civil Law； and of other Provisions； that Custom and the Prudence of the King and Council had thought upon； chosen； and put together。 King Stephen succeeded； by Way of Usurpation； upon Maud the sole Daughter and Heir of King Hen。 I。 The Laws of Hen。 I grew tedious and ungrateful to the People； partly because new； and so not so well known； and partly because more difficult and severe than those ancient Laws； called； The Confessor's； for Walsingham； in his Ypodigma Neustriae； tells us； That the Londoners petitioned Queen Maud； ut liceret eis uti Legibus sancti Edvardi & non legibus Patris sui Henrici； quia graives erant；。 and that her Refusal gave Occasion to their Defection from her； and strengthened Stephen in his Usurpation； who according to the Method of Usurpers； to secure himself in the Throne； was willing and ready to gratify the Desires of the People herein； and furthermore； took his Oath； 1st； That he would not retain in his Hands the Temporalties of the Bishops： 2dly； That he would remit the Severity of the Forest Laws； and 3dly； That he would also remit the Tribute of Danegelt： But he performed nothing。 His Times were troublesome； he did little in relation to the Laws； nor have we any Memorial of any Record touching his Proceedings therein； only there are some few Pipe Rolls of his Time； relating to the Revenue of the Crown。 Henry 2； the Son of Maud； succeeded Stephen； he reigned long； viz。 about Thirty Five Years； and tho' he was not without great Troubles and Difficulties； yet he built up the Laws and the Dignity of the Kingdom to a great Height and Perfection。 For； First； In the Entrance of his Government he settled the Peace of the Kingdom； he also reformed the Coin； which was much adulterated and debased in the Times and Troubles of King Stephen； Et Leges Henrici avi sui praecepit per totum Regnum inviolabiliter observari。 Hoveden。 Secondly； Against the Insolencies and Usurpations of the Clergy。 he by the Advice of his Council or Parliament at Clarendon； enacted those Sixteen Articles mentioned by Mat。 Paris； sub Anno 1164。 They are long； and therefore I remit you thither for the Particulars of them。 'Tis true； Thomas Becket； Archbishop of Canterbury； boldly and insolently took upon him to declare many of those Articles void； especially those Five mentioned in his Epistle to Suffragans； recorded by Hoveden； viz。 1st； That there should be no Appeal to the Bishop without the King's Licence。 2dly； That no Archbishop or Bishop should go over the Seas at the Pope's Command without the King's Licence。 3dly； That the Bishop should not excommunicate the King's Tenants in Capite without the King's Licence。 4thly； That the Bishop should not have the Conuzance of Perjury； or Fidei Laesionis。 And； 5thly； That the Clergy should be convened before Lay Judges； and that the King's Courts should have Conuzance of Churches and of Tythes。 Thirdly； He raised up the Municipal Laws of the Kingdom to a greater Perfection； and a more orderly and regular Administration than before； 'tis true； we have no Record of judicial Proceedings so ancient as that Time； except the Pipe Rolls in the Exchequer； which are only Accounts of his Revenue： But we need no other Evidence hereof than the Tractate of Glanville； which tho' perhaps it was not written by that Ranulphus de Glanvilla； who was Justitiarius Angliae under Hen。 2； yet it seems to be wholly written at that Time； and by that Book； tho' many Parts thereof are at this Day antiquated and altered； and in that long Course of Time； which has elapsed since that King's Reign； much enlarged； reformed； and amended； yet by comparing it with those Laws of the Confessor and Conqueror； yea； and the Laws of his Grandfather King Hen。 I which he confirmed； it will easily appear； that the Rule and Order； as well as the Administration of the Law； was greatly improved beyond what it was formerly； and we have more Footsteps of their Agreement and Concord herein with the Laws； as they were used from the Time of Edw。 I and downwards； than can be found in all those obsolete Laws of Hen。 I which indeed were but disorderly； confused and general Things； rather the Cases and Shells of directing the Way of Administration than Institutions of Law； if compared with Glanville's Tractate of our Laws。 Fourthly； The Administration of the Common Justice of the Kingdom； seems to be wholly dispensed in the County Courts； Hundred Courts； and Courts Baron； except some of the greater Crimes reformed by the Laws of King Hen。 I and that Part thereof which was sometimes taken up by the Justitiarius Anglicae： This doubtless bred great Inconvenience； Uncertainty； and Variety in the Laws； viz。 First； by the Ignorance of the Judges； which were the Freeholders of the County： For altho' the Alderman or Chief Constable of every Hundred was always to be a Man learned in the Laws； and altho' not only the Freeholders； but the Bishops； Barons； and great Men； were by the Laws of King Hen。 I appointed to attend the County Court； yet they seldom attend there； or if they did； in Process of Time they neglected the Study of the English Laws； as great Men usually do。 Secondly； Another Inconvenience was； That this also bred great Variety of Laws； especially in the several Counties： For the Decisions or Judgments being made by divers Courts； and several Independent Judges and Judicatories； who had no common Interest among them in their several Judicatories； thereby in Process of Time every several County would have several Laws； Customs； Rules； and Forms of Proceeding； which is always the Effect of several Independent Judicatories administred by several Judges。 Thirdly； A Third Inconvenience was； That all the Business of any Moment was carried by Parties and Factions： For the Freeholders being generally the Judges； and Conversing one among another； and being as it were the Chief Judges； not only of the Fact； but of the Law； every Man that had a Suit there； sped according as he could make Parties； and Men of great Power and Interest in the County did easily overbear others in their own Causes； or in such wherein they were interested； either by Relation of Kindred； Tenure； Service； Dependance； or Application。 And altho' in Cases of false Judgment； the Law； even as then used； proved a Remedy by Writ of false Judgment before the King or his Chief Justice； and in Case the Judgment was found to be such in the County Court； all the Suiters were considerably amerced； （which also continued long after in Use with some Severity） yet this proved but an ineffectual Remedy for those Mischiefs。 Therefore the Ki
