the history of the common law of england-第22部分
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Age； by ill Advice； causes the two Charters he had formerly granted to be cancell'd； 〃Hanc occasionem praetendens； quod Chartae illae concessae fuerunt & Libertates scriptae & signatae dum ipse erat sub Custodia； nec sui Corporis aut sigilli aliquam potestatem habuit； unde viribus carere debuit；〃 &c。 Which Fact occasion'd a great disturbance in the Kingdom： And this Inconstancy in the King； was in Truth the Foundation of all his future Troubles； and yet was ineffectual to his End and Purpose； for those Charters were not avoidable for the King's Nonage； and if there could have been any such Pretence； that alone would not avoid them； for they were Laws confirm'd in Parliament。 But the Great Charter； and the Charter of the Forest； did not expire so； for in 1253； they were again； seal'd and publish'd： And because after the Battle of Evesham； the King had wholly subdued the Barons； and thereby a Jealousy might grow； that he again meant to infringe it； in the Parliament at Marlbridge； cap。 5。 they are again confirm'd。 And thus we have the great Settlement of the Laws and Liberties of the Kingdom establish'd in this King's Time： The Charters themselves are not every Word the same with those of King John； but they differ very little in Substance。 This Great Charter； and Charta de Foresta； was the great Basis upon which this Settlement of the English Laws stood in the Time of this King and his Son； there were also some additional Laws of this King yet extant； which much polish' d the Common Law； viz。 The Statutes of Merton and Marlbridge； and some others。 We have likewise two other principal Monuments of the great Advance and Perfection that the English Laws attain'd to under this King； viz。 The Tractate of Bracton； and those Records of Plea； as well in both Benches； as before the Justices Itinerant； the Records whereof are still extant。 Touching the former； viz。 Bracton's Tractate； it yields us a great Evidence of the Growth of the Laws between the Times of Henry 2； and Hen。 3。 If we do but compare Glanville's Book with that of Bracton； we shall see a very great Advance of the Law in Writings of the latter； over what they are in Glanville。 It will be needless to instance Particulars； some of the Writs and Process do indeed in Substance agree； but the Proceedings are much more regular and settled； as they are in Bracton； above what they are in Glanville。 The Book itself in the Beginning seems to borrow its Method from the Civil Law； but the greatest Part of the Substance is either of the Course of Proceedings in the Law known to the Author； or of Resolutions and Decisions in the Courts of King's…Bench and Common…Bench； and before Justices Itinerant； for now the inferior Courts began to be of little Use or Esteem。 As to the Judicial Records of the Time of this King； they were grown to a much greater Degree of Perfection； and the Pleadings more orderly； many of which are extant： But the great Troubles； and the Civil Wars； that happen'd in his Time； gave a great Interruption to the legal Proceedings of Courts； they had a particular Commission and Judicatory for Matters happening in Time of War； stiled； Placita de Tempore Turbationis； wherein are many excellent Things： They were made principally about the Battle of Evesham； and after it； and for settling of the Differences of this Kingdom； was the Dictum； or Edictum de Kenelworth made； which is printed in the old Magna Charta。 We have little extant of Resolutions in this King's Time； but what are either remember'd by Bracton； or some few broken and scatter'd Reports collected by Fitzherbet in his Abridgment。 There are also some few Sums or Constitutions relative to the Law； which tho' possibly not Acts of Parliament； yet have obtain'd in Use as such； as De districtione Scaccarii； Statiutum Panis & Cervisiae Dies Communes in Banco Statutum Hiberniae； Stat。 de Scaccario； Judicium Collistrigii； and others。 We come now to the Time of Edw。 I； who is well stiled our English Justinian； for in his Time the Law； quasi Per Saltum； obtained a very great Perfection。 The Pleadings are short indeed； but excellently good and perspicuous： And altho' for some Time some of those Imperfections and ancient inconvenient Rules obtain'd； as for Instance； in Point of Descents； where the middle Brother held of the eldest； and dying without Issue； the Lands descended to the youngest； upon that old Rule in the Time of Hen。 2。 Nemo Potest esse Dominius & Haeres； mention'd in Glanville； at least if he had once receiv'd Homage； 13 E。 I。 Fitz Avowry 235。 Yet the Laws did never in any one Age receive so great and sudden an Advancement； nay； I think I may safely say； all the Ages since his Time have not done so much in Reference to the orderly settling and establishing of the distributive justice of this Kingdom； as he did within a short Compass of the thirty…five Years of his Reign； especially about the first thirteen Years thereof。 Indeed many Penal Statutes and Provisions； in Relation to the Peace and good Government of the Kingdom； have been since made。 But as touching the Common Administration of Justice between Party and Party； and accommodating of the Rules； and of the Methods and Orders of Proceding； he did the most； at least of any King since William I and left the same as a fix'd and stable Rule and Order of Proceeding； very little differing from that which we now hold and practice； especially as to the Substance and principal Contexture thereof。 It would be the Business of a Volume to set down all the Particulars； and therefore I shall only give some short Observations touching the same。 First； He perfectly settled the Great Charter； and Charta de Foresta； not only by a Practice consonant to them in the Distribution of Law and Right； but also by that solemn Act passed 25 E。 I。 and stiled Confirmationes Cartarum。 Secondly； He established and distributed the several Jurisdictions of Courts within their proper Bounds。 And because this Head has several Branches； I shall subdivide the same； viz。 1。 He check'd the Incroachments and insolencies of the Pope and the Clergy； by the Statute of Carlisle。 2。 He declared the Limits and Bounds of the Ecclesiastical Jurisdiction； by the Statute of Circumspecte Agatis & Articuli Cleri。 For note； Tho' this later Statute was not publisbed till Edw。 2； yet was compiled in the Beginning of Edw。 I。 3。 He established the Limits of the Court of Common Pleas； perfectly performing the Direction of Magna Charta； Qiuod Communia Placita non sequantur Curia nostra； in relation to B。 R。 and in express Terms extending it to the Court of Exchequer by the Statute of Articuli super Chartas； cap。 4。 It is true； upon my First reading of the Placita de Banco of Edw。 I。 I found very many Appeals of Death； of Rape； and of Robbery therein； and therefore I doubted； whether the same were not held at least by Writ in the Common Pleas Court： But upon better Inquiry； I found many of the Records before Justices Itinerant were enter'd or fill'd up among the Records of the Common Pleas； which might occasion that Mistake。 4。 He establish'd the Extent of the Jurisdiction of the Steward and Marshal。 Vide Articuli super Chartas； cap。 3。 And； 5。 He also settled the Bounds of Inferior Courts； not only of Counties； Hundreds； and Courts Baron； which he kept within their proper and narrow Bounds； for the Reasons given before； and so gradually the Common Justice of the Kingdom came to be administred by Men knowing in the Laws； and conversant in the great Courts of B。 R。 and C。 B。 and before Justices Itinerant； and also by that excellent Statute of Westminster 1。 cap。 35。 he kept the Courts of Great Men within their Limits； under several Penalties； wherein ordinarily very great Incroachments and Oppressions were exercised。 The Third general Observation I make is； He did not only explain； but excellently enforc'd； Magna Charta； by the Statute De Tallagio non concedendo； 34 E。 I。 Fourthly； He provided against the Interruption of the Common Justice of the Kingdom； by Mandates under the Great Seal； or Privy Seal； by the Statute of Articuli super Chartas； cap 6。 which； notwithstanding Magna Charta； had formerly been frequent in Use。 Fifthly； He settled the Forms； Solemnities； and Efficacies of Fines； confining them to the Common…Pleas； and to Justices Itinerant； and appointed the Place where they brought the Records after their Circuits； whereby one common Repository might be kept of Assurances of Lands； which he did by the Statute De modo levandi Fines； 18 E。 I。 Sixthly； He settled that great and orderly Method for the Safety and Preservation of the Peace of the Kingdom； and suppressing of Robberies； by the Statute of Winton。 Seventhly； He settled the Method of Tenures； to prevent Multiplicity of Penalties； which grew to a great Inconvenience； and remedied it by the Statute of Quia Emptores Terrarum； 18 E。 I。 Eighthly； He settled a speedier Way for Recovery of Debts； not only for Merchants and Tradesmen； by the Statutes of Acton； Burnel； & de Mercatoribus； but also for other Persons； by granting an Execution for a Moiety of the Lands by Elegit。 Ninthly； He made effectual Provision for Recovery of Advowsons and Presentations to Churches； which was before infinitely lame and defective； by Statute Westminster 2。 cap。 I。 Tenthly； He made that great Alteration in Estates from what they were formerly； by Statute Westminster 2。 cap。 1。 whereby Estates of Fee…Simple； conditional at Common Law； were turn'd into Estates…Tail； not removable from the Issue by the ordinary Methods of Alienation； and upon this Statute； and for the Qualifications hereof； are the Superstructures built of 4 H。 7。 cap。 32； 32 H。 8。 and 33 H。 8。 Eleventhly； He introduced quite a new Method； both in the Laws of Wales； and in the Method of their Dispensation； by the Statute of Rutland。 Twelfthly； In brief； partly by the Learning and Experience of his Judges； and partly by his own wise Interposition； he silently and without Noise abrogated many ill and inconvenient Usages； both in his Courts of Just
