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the history of the common law of england-及22何蛍

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

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