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