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the history of the common law of england-及24何蛍

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suppose Fitzherbert abstracted those broken Cases of this Reign  in his Abridgment。      In all those former Times�察�especially from the End of Edw。 3�察 �back to the Beginning of Edw。 I�察�the Learning of the Common Law  consisted principally in Assizes and Real Actions�察�and rarely was  any Title determined in any Personal Action�察�unless in Cases of  Titles to Rents�察�or Services by Replevin�察�and the Reasons thereof  were principally these�察�viz。      First�察�Because these ancient Times were great Favourers of  the Possessor�察�and therefore if about the Time of Edw。 2�察�a  Disseisor had been in Possession by a Year and a Day�察�he was not  to be put out without a Recovery by Assize。 Again�察�if the  Disseisor had made a Feoffment�察�they did not countenance an Entry  upon the Feoffee�察�because thereby he might lose his Warranty�察 �which he might save if he were Impleaded in an Assize or Writ of  Entry�察�and by this Means Real Actions were frequent�察�and also  assizes。      Secondly�察�They were willing to quiet Men's Possessions�察�and  therefore after a Recovery or Bar in an Assize or Real Action�察 �the Party was driven to an Action of a higher Nature。      Thirdly�察�Because there was then no known Action wherein a  Person could recover his Possession�察�other than by an Assize or a  Real Action�察�for till the End of Edw。 4�察�the Possession was not  recovered in an Ejectione firmae�察�but only Damages。      Fourthly�察�Because an Assize was a speedy and effectual Remedy  to recover a Possession�察�the Jury being ready Impannell'd and at  the Bar the first Day of the Return。 And altho' by Disusage�察�the  Practisers of Law are not so ready in it�察�yet the Course thereof  in those Times was as ready and as well known to all Professors  of the Law as the Course of Ejectione firmae is now。        Touching the Reports of the Years and Terms of Hen。 4�察�and  Hen。 5�察�I can only say�察�They do not arrive either in the Nature  of the Learning contained in them�察�or in the Judiciousness and  Knowledge of the Judges and Pleaders�察�nor in any other Respect  arise to the Perfection of the last Twelve Years of Edw。 3。      But the Times of Hen。 6��as also of Edw。 4�察�Edw。 5�察�and Hen。  7�察�were Times that abounded with Learning and excellent Men。  There is little Odds in the Usefulness or Learning of these  Books�察�only the first Part of Hen。 6�察�is more barren�察�spending  itself much in Learning of little Moment�察�and now out of Use�察�but  the second Part is full of excellent Learning。      In the Times of those Three Kings�察�Hen。 6�察�Edw。 4�察�and Hen。  7�察�the Learning seems to be much alike。 But these Two Things are  observable in them�察�and indeed generally in all Reports after the  Time of Edw。 3。 viz。        First�察�That Real Actions and Assizes were not so frequent as  formerly�察�but many Titles of Land were determined in Personal  Actions�察�and the Reasons hereof seem to be�察     �1st。 Because the Learning of them began by little and little  to be less known or understood。      2dly�察�The ancient Strictness of preserving Possession to  Possessors till Eviction by Action�察�began not to be so much in  Use�察�unless in Cases of Descents and Discontinuances�察�the latter  necessarily drove the Demandant to his Formedon�察�or his Cui in  Vita�察�&c。 But the Descents that told Entry were rare�察�because Men  preserved their Rights to enter�察�&c。 by continual Claims。      3dly�察�Because the Statute of 8 H。 6。 had helped Men to an  Action to recover their Possessions by a Writ of Forcible Entry�察 �even while the Method of Recovery of Possessions by Ejectments  was not known or used。      The Second Thing observable is�察�That tho' Pleadings in the  Times of those Kings were far shorter than afterwards�察�especially  after Hen。 8�察�yet they were much longer than in the Time of King  Edw。 3 and the Pleaders�察�yea and the Judges too�察�became somewhat  too curious therein�察�so that that Art or Dexterity of Pleading�察 �which in its Use�察�Nature and Design�察�was only to render the Fact  plain and intelligible�察�and to bring the Matter to judgment with  a convenient Certainty�察�began to degenerate from its primitive  Simplicity�察�and the true Use and End thereof�察�and to become a  Piece of Nicety and Curiosity�察�which how these later Times have  improved�察�the Length of the Pleadings�察�the many and unnecessary  Repetitions�察�the many Miscarriages of Causes upon small and  trivial Niceties in Pleading�察�have too much witnessed。      I should now say something touching the Times since Hen。 7 to  this Day�察�and therefore shall conclude this Chapter with some  general observations touching the Proceedings of Law in these  later Times。      And first�察�I shall begin where I left before�察�touching the  Length and Nicety of Pleadings�察�which at this Day far exceeds not  only that short yet perspicuous Course of Pleading which was in  the Time of Hen。 6�察�Edw。 4�察�and Hen。 7�察�but those of all Times  whatsoever�察�as our vast Presses of Parchment for any one Plea do  abundantly witness。      And the Reasons thereof seem to be these�察�viz。        First�察�Because in ancient Times the Pleadings were drawn at  the Bar�察�and the Exceptions ��also�� taken at the Bar�察�which were  rarely taken for the Pleasure or Curiosity of the Pleader�察�but  only when it was apparent that the Omission or the Matter  excepted to was for the most part the very Merit and Life of the  Cause�察�and purposely omitted or mispleaded because his Matter or  Cause would bear no better�此�But now the Pleadings being first  drawn in Writing�察�are drawn to an excessive Length�察�and with very  much Labouriousness and Care enlar ged�察�lest it might afford an  Exception not intended by the Pleader�察�and which could be easily  supplied from the Truth of the Case�察�lest the other Party should  catch that Advantage which commonly the adverse Party studies�察 �not in Contemplation of the Merits or Justice of the Cause�察�but  to find a slip to fasten upon�察�tho' in Truth�察�either not material  to the Merits of the Plea�察�or at least not to the Merits of the  Cause�察�if the Plea were in all Things conform to it。      Secondly�察�Because those Parts of Pleading which in ancient  Times might perhaps be material�察�but at this Time are become only  mere Styles and Forms�察�are still continued with much Religion�察 �and so all those ancient Forms at first introduced for  Convenience�察�but now not necessary�察�or it may be antiquated as to  their Use�察�are yet continued as Things wonderfully material�察�tho'  they only swell the Bulk�察�but contribute nothing to the Weight of  the Plea。      Thirdly�察�These Pleas being mostly drawn by Clerks�察�who are  paid for Entries and Copies thereof�察�the larger the Pleadings  are�察�the more Profits come to them�察�and the dearer the Clerk's  Place is�察�the dearer he makes the Client pay。      Fourthly�察�An Overforwardness in Courts to give Countenance to  frivolous Exceptions�察�tho' they make nothing to the true Merits  of the Cause�察�whereby it often happens that Causes are not  determined according to their Merits�察�but do often miscarry for  inconsiderable Omissions in Pleading。      But�察�Secondly�察�I shall consider what is the Reason that in  the Time of Edw。 I one Term contained not above two or three  Hundred Rolls�察�but at this Day one Term contains two Thousand  Rolls or more。      The Reasons whereof may be these�察�viz。        1st。 Many petty Businesses�察�as Trespasses and Debts under  40s。 are now brought to Westminster�察�which used to be dispatched  in the County or Hundred Courts�察�and yet the Plaintiffs are not  to be blamed�察�because at this Day those inferior Courts are so  ill served�察�and Justice there so ill administred�察�that they were  better seek it ��where it may be had�� at Westminster�察�tho' at  somewhat more Expence。      2dly�察�Multitudes of Attorneys practising in the Great Courts  at Westminster�察�who are ready at every Market to gratify the  Spleen�察�Spite or Pride�察�of every Plaintiff。      3dly�察�A great Increase of People in this Kingdom above what  they were anciently�察�which must needs multiply Suits。      4thly�察�A great Increase of Trade and Trading Persons�察�above  what there were in ancient Times�察�which must have the like  Effect。      5thly�察�Multitudes of new Laws�察�both Penal and others�察�all  which breed new Questions�察�and new Suits at Law�察�and in  particular�察�the Statute touching the devising of Lands�察�cum  multis aliis。      6thly�察�Multiplication of Actions upon the Case�察�which were  rare formerly�察�and thereby Wager of Law ousted�察�which discouraged  many Suits�此�For when Men were sure�察�that in case they rested upon  a bare Contract without Specialty�察�the other Party might wage his  Law�察�they would not rest upon such Contracts without reducing the  Debt into a Specialty�察�if it were of any Value�察�which created  much Certainty�察�and accorded many Suits。      And herewith I shall conclude this Chapter�察�shewing what  Progress the Law has made�察�from the Reign of King Edw。 I down to  these Times。      IX。 Concerning the settling of the Common Law of England in  Ireland and Wales�此�And some Observations touching the Isles of  Man�察�Jersey�察�and Guernsey�察�etc。        The Kingdom of Ireland being conquered by Hen。 2。 about the  Year 1171。 He in his Great Council at Oxon�察�constituted his  younger Son�察�John�察�King thereof�察�who prosecuted that Conquest so  fully�察�that he introduced the English Laws into that Kingdom�察�and  swore all the great Men there to the Observation of the same�察 �which Laws were�察�after the Decease of King John�察�again reinforc'd  by the Writ of King Hen。 3。 reciting that of King John�察�Rot。  Claus。 10 H。 3。 Memb。 8。 & 10。 Vide infra�察�& Pryn。 252�察�253�察�&c。      And because the Laws of England were not so suddenly known  there�察�Writs from Time to Time issued from hence�察�containing  divers Capitula Legum Angliae。 and commanding their Observation  in Ireland�察�as Rot。 Parl。 11 H。 3。 the Law concerning Tenancy by  Curtesy�察�Rot。 Claus。 20 H。 3。 Memb。 3。 Dorso。 The Law concerning  the Preference of the Son born after Marriage�察�to the Son born of  the same Woman before Marriage�察�or Bastard eigne & Mulier puisne�察 �Rot。 Clauf。 20 H。 3。 Memb。 4。 in Dorso�此�So the Law concerning all  the Parceners inheriting without doing Homage�察�and several  Transmissions of the like Nature。      For tho' King Hen。 2。 had done as much to introduce the  English Laws there�察�as the Nature of the Inhabitants or the  Circunmstances of the Times

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