the history of the common law of england-第28部分
按键盘上方向键 ← 或 → 可快速上下翻页，按键盘上的 Enter 键可回到本书目录页，按键盘上方向键 ↑ 可回到本页顶部！
————未阅读完？加入书签已便下次继续阅读！
avid King of Scots； and John de Baliol descended from the elder Daughter； with divers other Competitors。 All the Competitors submit their Claim to the Decision of Edw。 I。 King of England as Superior Dominus Regni Scotiae； who thereupon pronounced his Sentence for John de Baliol； and accordingly put him in Possession of the Kingdom； and required and received his Homage。 The King of England； notwithstanding this； kept still the Possession； & Insignia of his Superiority。 his Court of King' sBench sate actually at Roxborough in Scotland； Mich。 20； 21 Ed。 I。 coram Rege； and upon Complaint of Injuries done by the said John King of Scots； now restor'd to his Kingdom； he summoned him often to answer in his Courts； Mich。 21； 22 Edw。 I。 Northumh。 Scot。 He was summoned by the Sheriff of Northumberland to answer to Walbesi in the King's Court； Pas。 21。 E。 I。 coram Rege。 Rot。 34。 He was in like wanner summoned to answer John Mazune in the King's…Bench for an Injury done to him； and Judgment given against the King of Scots； and that judgment executed。 John King of Scots； being not contented with this Subjection； did in the 24th Year of King Edw。 I resign back his Homage to King Edward； and bid Defiance to him； wherefore King Edw。 I the same Year with a powerful Army entered Scotland； took the King of Scots Prisoner； and the greatest part of that Kingdom into his Possession； and appointed the Earl Warren to be Custos Regni； Cressingham to be his Treasurer； and Ormsby his Justice； and commanded his Judges of his Courts of England to issue the King of England's Writs into Scotland。 And when in the 27th Year of his Reign； the Pope； instigated by the French King； interpos'd in the Behalf of the King of Scotland； he and his Nobility resolutely denied the Pope's Intercession and Mediation。 Thus the Kingdom of Scotland continued in an actual Subjection to the Crown of England for many Years； for Rot。 Claus。 33 E。 I。 Membr。 13。 Dorso； and Rot。 Claus。 34 E。 I。 Memb。 3。 Dorso； several Provisions are made for the better ordering of the Government of Scotland。 What Proceedings there were herein in the Time of Edw。 2 and what Capitulations and Stipulations were afterwards made by King Edw。 3 upon the Marriage of his Sister by Robert de Bruce touching the Relaxation of the Superius Dominium of Scotland； is not pertinent to what I aim at； which is； to shew how the English Laws that were in Use and Force in the Time of Edw。 I obtained to be of Force in Scotland； which is but this； viz。 King Edward I having thus obtained the actual Superiority of the Crown of Scotland； from the Beginning of the Reign until his 20th Year； and then placing John de Baliol in that Kingdom； and yet continuing his Superiority thereof； and keeping his Courts of Justice； and exercising Dominion and Jurisdiction by his Officers and Ministers in the very Bowels of that Kingdom； and afterwards upon the Defection of this King John； in the 24th of Edw。 I taking the whole Kingdom into his actual Administration； and placing his own Judges and great Officers there； and commanding his Courts of King's…Bench （&c。） here； to Issue their Process thither； and continuing in the actual Administration of the Government of that Kingdom during Life： It is no Wonder that those Laws； which obtained and were in Use in England； in and before the Time of this King； were in a great Measure translated thither； and possibly either by being enacted in that Kingdom； or at least for so long Time； put in Use and Practice there； many of the Laws in Use and Practice here in England were in his Time so rivetted and settled in that Kingdom； that 'tis no Wonder to find they were not shaken or altered by the liberal Concessions made afterwards by King Edw。 3 upon the Marriage of his Sister； but that they remain Part of the Municipal Laws of that Kingdom to this Day。 And that which renders it more evident； That this was one of the greatest Means of fixing and continuing the Laws of England in Scotland； is this； viz。 This very King Edw。 I was not only a Martial and Victorious； but also a very Wise and Prudent Prince； and one that very well knew how to use a Victory； as well as obtain it： And therefore knew it was the best Means of keeping those Dominions he had powerfully obtain' d； by substituting and translating his own Laws into the Kingdom which he had thus subdued。 Thus he did upon his Conquest of Wales； and doubtless thus he did upon his Conquest of Scotland； and those Laws which we find there so nearly agreeing with the Laws of England used in his Time； especially the Statutes of Westm。 1 and Westm。 2 are the Monuments and Footsteps of his Wisdom and Prudence。 And； as thus he was a most Wise Prince； and to secure his Acquests； introduced many other Laws of his Native Kingdom into Scotland； so he very well knew the Laws of England were excellent Laws fitted for the due Administration of Justice to the Constitution of the Governed； and fitted for the Preservation of the Peace of a Kingdom； and for the Security of a Government： And therefore he was very solicitous； by all prudent and careful Means imaginable； to graft and plant the Laws of England in all Places where he might； having before…hand used all possible Care and Industry for Rectifying and Refining the English Laws to their greatest Perfection。 Again； It seems very evident； that the Design of King Edw。 I was by all Means possible to unite the Kingdom of Scotland （as he had done the Principality of Wales） to the Crown of England； so that thereby Britain might have been one entire Monarchy； including Scotland as well as Wales and England under the same Sceptre； and in order to the accomplishing thereof； there could not have been a better Means than to make the Interest of Scotland one with England； and to knit 'em as it were together in one Communion； which could never have been better done than by establishing one Common Law and Rule of Justice and Commerce among them； and therefore he did； as Opportunity and Convenience served； translate over to that Kingdom as many of our English Customs and Laws as within that Compass of Time he conveniently could。 And thus I have given an Essay of the Reasons and Means； how and why we find so many Laws in Scotland parallel to those in England； and holding so much of Congruity and Likeness to them。 And the Reason why we have but few of their Laws that correspond with ours of a later Date than Edw。 I or at least Edw。 2 is because since the Beginning of Edw。 3 that Kingdom has been distinct； and held little Communion with us till the Union of the two Crowns in the Person of King James I and in so great an Interval it must needs he； that by the Intervention and Succession of new Laws； much of what was so ancient as the Times of Edw。 I and Edw。 2 have received many Alterations： So that it is a great Evidence of the Excellency of our English Laws； that there remain to this Day so many of them in Force in that Part of Great Britain continuing to bear Witness； that once that excellent Prince Edw。 I exercised Dominion and Jurisdiction there。 And thus far of the Communion of the Laws of England to Scotland； and of the Means whereby it was effected； from whence it may appear； That as in Wales； Ireland and Normandy； so also in Scotland； such Laws which in those Places have a Congruity or Similitude with the Laws of England； were derived from the Laws of England； as from their Fountain and Original； and were not derived from any of those Places to England。 XI。 Touching the Course of Descents in England Among the many Preferences that the Laws of England have above others； I shall single out Two particular Titles which are of Common Use； wherein their Preference is very visible； and the due Consideration of their Excellence therein； may give us a handsome Indication or Specimen of their Excellencies above other Laws in other Parts or Titles of the same also。 Those Titles； or Capitula Legum； which I shall single out for this Purpose； are these Two； viz。 1st； The hereditary Transmission of Lands from Ancestor to Heir； and the Certainty thereof： and 2dly； The Manner of Trial by Jury； which； as it stands at this Day settled in England； together with the Circumstances and Appendixes thereof； is certainly the best Manner of Trial in the World； and I shall herein give an Account of the successive Progress of those Capitula Legis； and what Growth they have had in Succession of Time till they arriv'd so that State and Perfection which they have now obtain'd。 First； Then； touching Descents and hereditary Transmissions： It seems by the Laws of the Greeks and Romans； that the same Rule was held both in Relation to Lands and Goods； where they were not otherwise disposed of by the Ancestor； which the Romans therefore called Successio ab intestato； but the Customs of particular Countries； and especially here in England； do put a great Difference； and direct a several Method in the Transmission of Goods or Chattels； and that of the Inheritances of Lands。 Now as to hereditary Transmissions or Successions； commonly called with us Descents； I shall hold this Order in my Discourse； viz。 First； I shall give some short Account of the ancient Laws both of the Jews； the Greeks； and the Romans； touching this Matter。 Secondly； I shall observe some Things wherein it may appear； how the particular Customs or Municipal Laws of other Countries varied from those Laws； and the Laws here formerly used。 Thirdly； I shall give some Account of the Rules and Laws of Descents or hereditary Transmissions as they formerly stood； and as at this Day they stand in England； with the successive Alterations； that Process of Time； and the Wisdom of our Ancestors； and certain Customs grown up； tacitly； gradually； and successively have made therein。 And First； touching the Laws of Succession； as well of Descent of Inheritances of Lands； as also of Goods and Chattels； which among the Jews was the same in both。 Mr Selden； in his Book De Successionibus apud Hebraeos； has given us an excellent Account； as well out of the Holy Text as out of th
