the history of the common law of england-第21部分
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ords of Pleadings and Proceedings in his Courts； And 3dly； The Course he took for settling the English Laws in Ireland。 1。 Touching the first of these； his Charters of the Liberties of England； and of the Forest； were hardly； and with Difficulty； gained by his Baronage at Stanes； Anno Dom。 1215。 The Collection of the former was； as Mat。 Paris tells us； upon the View of the Charter or Law of King Hen。 I。 which says； he contained 〃quasdam Libertates & Leges a Rege Edvardo Sancto； Ecclesiae & Magnatibus concessas； exceptis quibusdam Libertatibus quas idem Rex de suo adjecit〃； and that thereupon the Baronage fell into a Resolution to have those Laws granted by King John。 But as it is certain； that the Laws added by King Hen。 I to those of the Confessor were many more； and much differing from his； so the Laws contained in the Great Charter of King John； differed much from those of King Hen。 I。 Neither are we to think； that the Charter of King John contained all the Laws of England； but only or principally such as were of a more comprehensive Nature； and concerned the Common Rights and Liberties of the Church； Baronage and Commonalty which were of the greatest Moment； and had been most invaded by King John's Father and Brother。 The lesser Charter； or De Foresta； was to reform the Excesses and Encroachments which were made； especially in the Time of Rich。 I and Hen。 2 who had made New Afforestations； and much extended the Rigour of the Forest Laws： And both these Charters do in Substance agree with that Magna Charta； & de Foresta； granted and confirm'd 9 Hen。 3。 I shall not need to recite them； or to make any Collections or Inferences from them； they are both extant in the Red Book of the Exchequer； and in Mat。 Paris； sub Anno 1215； and the Record and the Historian do Verbatim agree。 As to the Second Evidence we have of the Progress of the Laws in King John's Time； they are the Records of Pleadings and Proceedings which are still extant： But altho' this King endeavoured to bring the Law； and the Pleadings and Proceedings thereof； to some better Order than he found it； for saving his Profits whereof he was very studious； and for the better Reduction of it into Order and Method； we find frequently in the Records of his Time； Fines imposed； Pro Stultiloquio； which were no other than Mulcts imposed by the Court for barbarous and disorderly Pleading： From whence afterwards that Common Fine arose； Pro Pulchre Placitando； which was indeed no other than a Fine for want of it； and yet for all this； the Proceeding in his Courts were rude； imperfect； and defective； to what they were in the ensuing Times of Edw。 I。 &c。 But some few Observables I shall take Notice of upon the Perusal of the Judicial Records of the Time of King John； viz。 1 st。 That the Courts of King's…Bench and Common…Pleas were then distinct Courts； and distinctly held from the Beginning to the End of King John's Reign。 2dly； That as yet； neither one nor both of those Courts dispatch'd the Business of the Kingdom； but a great Part thereof was dispatch'd by the Justices Itinerant； which were sometimes in Use； but not without their Intermissions； and much of the Publick Business was dispatch'd in the County Courts； and in other inferior Courts； and so it continued； tho' with a gradual Decrease till the End of King Edw。 I； and for some Time after： And hence it was； That in those elder Times； the Profits of those County Courts for which the Sheriff answered in his Farm； de Proficuis Comitatus； also Fines were levied there； and post Fines； and Fines Pro licentia concordandi； and great Fines there answered； Fines Pro lnquisitionibus habendi； Fines for Misdeameanors； tho' called Amerciaments； arose to great Sums； as will appear to any who shall peruse the ancient Viscontiels。 But； as I said before； the Business of Inferior Courts grew gradually less and less； and consequently their Profits and Business of any Moment came to the Great Courts； where they were dispatch'd with greater Justice and Equality。 Besides； the greater Courts observing what Partiality and Brocage was used in the inferior Courts； gave a pretty quick Ear to Writs of false Judgment； which was the Appeal the Law allowed from erroneous Judgments in the County Courts； and this； by Degrees； wasted the Credit and Business of those inferior Courts。 3dly； That the Distinction between the King's…Bench and Common…Bench； as to the Point of Communia Placita； was not yet； nor for some Time after； settled； and hence it is； that frequently in the Time of King John； we shall find that Common Pleas were held in B。 R。 yea； in Mich。 & Hill。 13 Johannis； a Fine is levied coram iPso Rege； between Gilbert Fitz Roger and Helwise his Wife； Plaintiffs； and Robert Barpyard Tenant of certain Lands in Kirby； &c。 And again； whereas there was frequently a Liberty granted anciently by the Kings of England； and allowed； Quod non implacitetur nisi coram Rege； I find inter Placita de diversis Terminis secundo Johannis； That upon a Suit between Henry de Rochala； and the Abbot of Leicester before the Justices de Banco； the Abbot pleaded the Charter of King Richard I。 Quod idem Abbas pro nullo respondeat nisi coram ipso Rege vel Capitali Justitiario suo； and it is ruled against the Abbot； Quia omnia Placita quae coram Justic。 de Banco tenentur； coram Domino Regi vel ejus Capitali Justitiario teneri intelliguntur。 But this Point was afterwards settled by the Statute of Magna Charta； Quod Communia Placita non sequantur Curiam nostram。 4thly。 That the four Terms were then held according as was used in After…times with little Variance； and had the same Denominations they still retain。 5thly。 That there were oftentimes considerable Sums of Money； or Horses； or other Things given to obtain Justice； sometimes 'tis said to be； Pro habenda Inquisitione ut supra； and inter Placita incertitemporis Regis Johannis。 The Men of Yarmouth against the Men of Hastings and Winchelsea； Afferunt Domino Regi tres Palsridos； & sex Asturias Narenses ad Inquisitionem habendam Per Legales； &c。 and frequently the same was done； and often accounted for in the Pipe…Rolls； under the Name of Oblata； and to remedy this Abuse； was the Provision made in King John's and King Hen。 3d's Charters； Nulli Vendemus Justitiam ivel Rectum。 But yet Fines upon Originals being certain； having continued to this Day； notwithstanding that Provision； but those enormous Oblata before mentioned； are thereby remedied and taken away。 6thly； That in all the Time of King John； the Purgation Per Ignem & Aquam； or the Trial by Ordeal； continued as appears by frequent Entries upon the Rolls； but it seems to have ended with this King； for I do not find it in Use in any Time after： Perchance the Barbarousness of the Trial； and Persuasions of the Clergy； prevailed at length to antiquate it； for many Canons had been made against it。 7thly； In this King's Time； the Descent of Socage as well as Knight's Service Lands to the eldest Son prevailed in all Places； unless there was a special Custom； that the Lands were partible inter Masculos；。 and therefore； Mich。 secundo Johannis； in a rationabili Parte Bonorum； by Gilbert Beville against William Beville his elder Brother for Lands in Gunthorpe； the Defendant pleaded； Quod Nunquam Parita Vel Partibilia fuere； and because the Defendant could not prove it； Judgment was given for the Demandant： And by Degrees it prevail'd so； that whereas at this Time the Averment came on the Part of the Heir at Law； that the Land nunquam Parita Vel Partibilis extetit； in a little Time after the Averment was turn'd on the other Hand； viz。 That tho' the Land was Socage； yet unless he did aver and prove that it was Partita & Partibilis； he failed in his Demand。 Thirdly； The third Instance of the Progress of King John's Reign； in Relation to the Common Law； was his settling the same in Ireland； which he made his more immediate and particular Business： But hereof we shall add a particular Chapter by itself； when we have shewn you what Proceedings and Progress was made therein in the Time of Edw。 I。 The many and great Troubles that fell upon King John and the whole Kingdom； especially towards the latter End of his Reign； did much hinder the good Effect of settling the Laws of England； and consequently the Peace thereof； which might have been bottom'd； especially upon the Great Charter。 But this Unfortunate Prince and Kingdom were so entangled with intestine Wars； and with the Invasion of the French； who assisted the English Barons against their King； and by the Advantages and Usurpations that the Pope and Clergy made by those Distempers； that all ended in a Confusion with the King's Death。 I come therefore to the long and troublesome Reign of Hen。 3 who was about nine Years old at his Father's Death； he being born in Festo sancti； Remigii 1207； and King John died in Festo sancti Lucae； 1216； and the young King was crown'd the 28th of October； being then in the tenth Year of his Age； and was under the Tutelage of William Earl…Marshal。 The Nobility were quick and earnest； notwithstanding his Minority； to have the Liberties and Laws of the Kingdom confirm'd； and Preparatory thereto； in the Year 1223； Writs issued to the several Counties to enquire； by twelve good and lawful Knights； Que fuerunt Libertates in Anglia tempore Regni Henrici avi sui； returnable quindena Paschae。 What Success those Inquisitions had； or what Returns were made thereof； appears not： But in the next Year following； the young King standing in Need of a Supply of Money from the Clergy and Laity； none would be granted； unless the Liberties of the Kingdom were confirm'd； as they were express'd and contain'd in the two Charters of King John； which the King accordingly granted in his Parliament at Westminster； and they were accordingly proclaim'd； Ita quod Chartae utrorumque Regum in nulla inveniatur dissimiles。 Mat。 Paris。 Anno 1224。 In the Year 1227； The King holding his Parliament at Oxford； and being now of full Age； by ill Advice； causes the two Charters he had formerly granted to be cancell'd； 〃Hanc occasio
