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