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The History of the Common Law of England
VI.
by Hale, Matthew
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Concerning the Parity or Similitude of the Laws of
England and Normandy, and the Reasons thereof
The great Similitude that in many Things appears hetween the Laws of
England, and those of Normandy, has given some Occasion to such as consider not
well of Things, to suppose that this happened by the Power of the Conqueror, in
conforming the Laws of this Kingdom to those of Normandy; and therefore will
needs have it, that our English Laws still retain the Mark of that Conquest,
and that we received our Laws from him as from a Conqueror; than which
Assertion, (as it appears even by what has before been said) nothing can be
more untrue. Besides, if there were any Laws derived from the Normans to us, as
perhaps there might be some, yea, possibly many; yet it no more concludes the
Position to be true, that we received such Laws Per Modum Conquestus, than if
the Kingdom of England should at this Day take some of the Laws of Persia,
Spain, Egypt, or Assyria, and by Authority of Parliament settle them here.
Which tho' they were for their Matter Foreign, yet their obligatory Power, and
their formal Nature or Reason of becoming Laws here, were not at all due to
those Countries, whose Laws they were, but to the proper and intrinsical
Authority of this Kingdom by which they were received as, or enacted into,
Laws: And therefore, as no Law that is Foreign, binds here in England, till it
be received and authoritatively engrafted into the Law of England; so there is
no Reason in common Prudence and Understanding for any Man to conclude, that no
Rule or Method of Justice is to be admitted in a Kingdom, tho' never so useful
or beneficial, barely upon this Account, That another People entertain'd it,
and made it a Part of their Laws before us.
But as to the Matter itself, I shall consider, and enquire of the
following Particulars, viz.
1. How long the Kingdom of England and Dutchy of Normandy stood in
Conjunction under one Governor.
2. What Evidence we have touching the Laws of Normandy, and of their
Agreement with ours.
3. Wherein consists that Parity or Disparity of the English and Norman
Laws.
4. What might be reasonably judged to be the Reason and Foundation of
that Likeness, which is to be found between the Laws of both Countries.
First, Touching the Conjunction under one Governor of England and
Normandy, we are to know, That the Kingdom of England and Dutchy of Normandy
were de facto in Conjunction under these Kings, viz. William I, William 2,
Henry I, King Stephen, Henry 2, and Richard I who, dying without Issue, left
behind him Arthur Earl of Britain, his Nephew, only Son of Geoffry Earl of
Britain, second Brother of Richard I and John the youngest Brother to Richard I
who afterward became King of England by usurping the Crown from his Nephew
Arthur. But the Princes of Normandy still adhered to Arthur, "sicut Domino
Ligeo suo dicentes Judicium & Consuetudinem esse illarum Regionum ut
Arthurus Filius, Fratris Senioris in Patrimonio sido debito & haereditate
Avunculo suo succedat eodem jure quod Gaulfridus Pater ejus esset habiturus si
Regi Richardo defuncto supervixisset."
And therein they said true, and the Laws of England were the same,
Witness the Succession of Richard 2 to Edward 3 also the Laws of Germany, and
the ancient Saxons were accordant hereunto; and it was accordingly decided in a
Trial by Battle, under Otho the Emperor, as we are told by Radulphus, de Diceto
sub Anno 945. And such are the Laws of France to this Day, Vide Chopimus de
Domanio Franciae, Lib. 2. Tit. 12. and such were the ancient Customs of the
Normans, as we are told by the Grand Contumier, cap. 99. And such is the Law of
Normandy, and of the Isles of Jersey and Guernsey (which some Time were Parcel
thereof) at this Day, as is agreed by Terrier, the best Expositor of their
Customs, Lib. 2. cap. 2. And so it was adjudg'd within my Remembrance in the
Isle of Jersey, in a Controversy there, between John Perchard and John Rowland,
for the Goods and Estate of Peter Perchard.
But nevertheless, John the Uncle of Arthur came by Force and Power, Et
Rotomagum Gladio Diucatus Normanniae accinctus est Per Ministerium Kotomagensis
Archiepiscopi, as Mat. Paris says; and shortly after also usurped the Crown of
England, and imprisoned his Nephew Arthur, who died in the year 1202, being as
was supposed murthered by his said Uncle, Vide Mat. Paris, in fine Regni Regis
Rici' Primi, and Walsingham in his Ypodigma Neustriae sub eodem Anno 1202.
And to countenance his Usurpation in Normandy, and to give himself the
better Pretence of Title, he by his Power so far prevailed there, that he
obtained a Change of the Law there, purely to serve his Turn, by transferring
the Right of Inheritance from the Son of the elder Brother to the younger
Brother, as appears by the Grand Contumier, cap. 99. But withal, the Gloss
takes Notice of it as an Innovation, and brought in by Men of Power, tho' it
mentions not the particular Reason, which was aforesaid.
The King of France (of whom the Dutchy of Normandy was holden) highly
resented the Injury done by King John to his Nephew Arthur, who, as was
strongly suspected, came not fairly to his End. He summoned King John as Duke
of Normandy into France, to give an Account of his Actions, and upon his
Default of appearing, he was by King Philip of France forejudged of the Said
Dutchy, Vide Mat. Paris, in initio Regni Johannis; and this Sentence was so
effectually put in Execution, that in the year 1204, Mat Paris tells us, "Tota
Normannia, Turania Andegavia, & Pictavia cum Civitatibus & Castellis
& Rebus aliis praeter Rupellam, Toar, & Mar Castellam sunt in Regis
Francorum Dominium devoluta."
But yet he retained, tho' with much Difficulty, the Islands of Jersey
and Guernsey, and the uninterrupted Possession of some Parts of Normandy for
some Time after, and both he and and his Son King Hen. 3 kept the Stile and
Title of Dukes of Normandy, &c. 'till the 43d year of King Hen. 3 at which
Time for 3000 Livres Tournois, and upon some other Agreements, he resigned
Normandy and Anjou to the King of France, and never afterwards used that Title,
as appears by the Continuation of Mat. Paris, sub Anno 1260, only the four
Islands, some Time Parcel of Normandy, were still, and to this Day, are enjoyed
by the Crown of England, viz. Jersey, Guernsey, Sarke, and Aldernay, tho' they
are still governed under their ancient Norman Laws.
Secondly, As to the Second Enquiry, What Evidence we have touching the
Laws of Normandy: The best, and indeed only common Evidence of the ancient
Customs and Laws of Normandy, is that Book which is called, The Grand Contumier
of Normandy, which in later years has been illustrated, not only with a Latin
and French Gloss, but also with the Commentaries of Terrier, a French
Author.
This Book does not only contain many of the ancienter Laws of Normandy,
but most plainly it contains those Laws and Customs which were in Use here in
the Time of King Hen. 2, King Rich. I and King John, yea, and such also as were
in Use and Practice in that Country after the Separation of Normandy from the
Crown of England; for we shall find therein, in their Writs and Processes,
frequent Mention of King Rich. I and the entire Text of the 110th Chapter
thereof is an Edict of Philip King of France, after the Severance of Normandy
from the Crown of England. (I speak not of those additional Edicts which are
annex'd to that Book of a far later Date.) So that we are not to take that Book
as a Collection of the Laws of Normandy, as they stood before the Accession or
Union thereof to the Crown of England; but as they stood long after, under the
Time of those Dukes of Normandy that succeeded William I and it seems to be a
Collection made after the Time of K. Hen. 3 or at least after the Time of K.
John, and consequently it states their Laws and Customs as they stood in Use
and Practice about the Time of that Collection made, which observation will be
of Use in the ensuing Discourse.
Thirdly, Touching the Third Particular, viz. The Agreement and Disparity
of the Laws of England and Normandy. It is very true, we shall find a great
Suitableness in their Laws, in many Things agreeing with the Laws of England,
especially as they stood in the Time of King Hen. 2 the best Indication whereof
we have in the Collection of Glanville; the Rules of Discents, of Writs, of
Process, of Trials, and some other Particulars, holding a great Analogy in both
Dominions, yet not without their Differences and Disparities in many
Particulars, viz.
First, Some of those Laws are such as were never used in England; for
Instance, There was in Normandy a certain Tribute paid to the Duke, called
Monya, i. e. a certain Sum yielded to him (in Consideration that he should not
alter their Coin) payable every three years, Vide Contumier, cap. 15. But this
Payment was never admitted in England; indeed it was taken for a Time, but was
ousted by the first Law of King Hen. 1 as an Usurpation. Again, by the Custom
of Normandy, the Lands descended to the Bastard Eigne, born before Marriage of
the same Woman, by whom the same Man had other Children after Marriage,
Contumier, cap. 27. But the Laws of England were always contrary, as appears by
Glanville, Lib. 7. cap. 13. And the Statute of Merton, which says, Nolumus
Leges Anglicans Mutare, &c. Again, by the Laws of Normandy, if a Man died
without Issue, or Brother, or Sister, the Lands did descend to the Father,
Contumier, cap. 15. Terrier, cap. 2. But in England, this Law seems never to
have been used.
2dly, Again, Some Laws were used in Normandy, which were in Use in
England long before the supposed Norman Conquest, and therefore could in no
Possibility have their original Force, or any binding Power here upon that
Pretence: For Instance, it appears by the Custumier of Normandy, that the
Sheriff of the County was an Annual Officer, and so 'tis evident he was
likewise in England before the Conquest: And among the Laws of Edward the
Confessor, it is provided, "Quod Aldermanni in Civitatibus eandem habeant
Dignitatem qualem habent Ballivi hundredorum in Ballivis suis sub Vicecomitem":
Again, Wreck of the Sea, and Treasure Trove was a Prerogative belonging to the
Dukes of Normandy, as appears by the Contumier, cap. 17, & 18. and so it
was belonging to the Crown of England before the Conquest, as appears by the
Charter of Edward the Confessor to the Abby or Ramsey of the Manor of
Ringstede, cum toto ejectu Maris quod Wreccum dicitur, and the like, vide ibid.
of Treasure Trove, & vide the Laws of Edward the Confessor, cap. 14. So
Fealty, Homage, and Relief, were incident to Tenures by the Laws of Normandy,
Vide Contumier, cap. 29. And so they were in England before the Conquest, as
appears by the Laws of Edward the Confessor, cap. 35. and the Laws of Canutus,
mentioned by Brompton cap. 8. So the Trial by Jury of Twelve Men was the usual
Trial among the Normans in most Suits, especially in Assizes, & Juris
Utrums, as appears by the Contumier, cap. 92, 93, & 94. and that Trial was
in Use here in England before the Conquest, as appears in Brompton among the
Laws of King Elthred, cap. 3. which gives some Specimen of it, viz. "Habeant
placita in singulis Wapentachiis & exeant Seniores duodecim Thani vel
Praepositus cum iis & jurent quod neminem innocentem accusare nec Noxium
concelare."
3dly, Again, In some Things, tho' both the Law of Normandy and the Law
of England agreed in the Fact, and in the Manner of Proceeding, yet there was
an apparent Discrimination in their Law from ours: As for Instance, The Husband
seized in Right of the Wife, having Issue by her, and she dying, by the Custom
of Normandy he held but only during his Widowhood, Contiumier, cap. 119. But in
England, he held during his Life by the Curtesy of England.
4thly, But in some Things, the Laws of Normandy agreed with the Laws of
England, especially as they stood in the Times of Hen. 2 and Rich. I so that
they seem to be as it were Copies or Counterparts one of another; tho' in many
Things, the Laws of England are since changed in a great Measure from what they
then were? For Instance, at this Day in England, and for very many Ages past,
all Lands of Inheritance, as well Socage Tenures, as of Knights Service,
descend to the eldest Son, unless in Kent and some other Places where the
Custom directs the Descent to all the Males, and in some places to the
youngest; but the ancient Law used in England, though it directed Knights
Services and Serjeanties to descend to the eldest Son, yet it directed
Vassalagies and Soccage Lands to descend to all the Sons, Glanvil. Lib. 7. cap.
3. and so does the Laws of Normandy to this Day. Vide Contumier, cap. 26. &
post hic, cap. 11.
Again. Leprosy at this Day does not impede the Descent; but by the Laws
in Use in England, in the elder Times, unto the Time of King John, and for some
Time afterwards, Leprosy did impede the Descent, as Placito Quarto Johannis, in
the Case of W. Fulch, a Judge of that Time, and accordingly were the Laws of
Normandy. Vide Le Contumier, cap. 27.
Again. At this Day, by the Law of England, in Cases of Trials by Twelve
Men, all ought to agree, and any one dissenting, no Verdict can be given; but
by the Laws of Normandy, tho' a Verdict ought to be by the concurring Consent
of Twelve Men, yet in Case of Dissent or Disagreement of the Jury, they used to
put off the lesser Number that were Dissenters, and added a kind of Tales equal
to the greater Number so agreeing, until they had got a Verdict of Twelve Men
that concurred, Contumier, c. 95. And we may find some ancient Footsteps of the
like Use here in England, tho' long since antiquated, Vide Bracton, Lib. 4.
cap. 19. where he speaks thus,
Contingit etiam multotiens quod Juratores in veritate dicenda sunt sibi
contrarii ita quod in unam concordare non possunt sententiam, Quo casu de
Consilio Curiae affortietur Assisa, ita quod apponantur alii juxta numerum
majoris partis quae dissenserit, vel saltem quatuor vel sex & adjungantur
aliis, vel etiam per seipsos sine aliis, de veritate discutiant & judicent,
& per se respondeant & eorum veredictum allocabitur & tenebitur cum
quibus ipsi convenirent.
Again. At this Day, by the Laws of England, a Man may give his Lands in
Fee-simple, which he has by Descent, to any one of his Children, and disinherit
the rest: But by the ancient Laws used here, it seems to be otherwise; as Mich.
10. Johannis Glanv. Lib. 7. cap. 2. the Case of William de Causeia. And
accordingly were the Laws of Normandy, as we find in the Grand Contumier, cap.
36. "Quand le Pere avoit plusieurs fills, ils ne peut fairde de son Heritage le
un Meillenr que le auter"; and yet it seems to this Day, in England, it holds
some Resemblance in Cases of Frank-Marriage, viz. That the Doness, in Case she
will have any Part of her Father's other Lands, ought to put her Lands in
Hochpot.
Again, By the Law of England, the younger Brother shall not exclude the
Son of the elder, who died in the Life-time of the Father: And this was the
ancient Law of Normandy, but received some Interruption in Favour of King
John's Claim, Vide Contumier. cap. 25. & hic ante; and indeed, generally
the Rule of Descents in Normandy was the same in most Cases with that of
Descents with us at this Day; as for Instance, That the Descent of the Line of
the Father shall not resort to that of the Mother, Et e converso; and that the
Course was otherwise in Cases of Purchases. But in most Things the Law of
Normandy was consonant to the Law with us, as it was in the Time of King
Richard I and King John; except in Cases of Descents to Bastard eigne,
excluding Mulier Puisne, as aforesaid.
Again, at this Day there are many Writs now in Use which were anciently
also in Use here, as well as in Normandy: As Writs of Rights, Writs of Dower,
Writs De novel Desseisin, de Mortdancestor, Juris utrum, Darrein presentment,
&c. And some that are now out of Use, though anciently in Use here in
England; as Writs De Feodo vel Vado, De Feodo vel Warda, &c. All which are
taken notice of by Glanville, Lib. 13. cap. 28, 29. And the very same Forms of
Writs in Effect were in Use in Normandy, as appears by the Contumier Per Totum,
and the Writ De Feodo vel Vado, (ibid. cap. 11.) according to Glanville, Lib.
13. cap. 27. runs thus, viz.
Rex Vicecomiti salutem: Summone per bonos summonitores duodenim liberos
& legales homines de vicineto quod sint coram me vel Justiciis meis eo die
parati Sacramento Recognoscere utrum N. teneat unam Carucatem Terrae in illa
villa quae R. clamat versus eum per Breve meum in Feodo an in vadio, invadiatem
ei ab ipso R. vel ab H. antecessore ejus, (vel aliter si sit Feodam vel
haereditas ipsius N. an in vadio invadiata ei ab ipso R. vel ab H. &c. Et
interim terram illam videant, &c. (Vide ibid.)
And according to the Grand Contumier, that Writ runs thus, viz.
Si Rex fecerit te securum de clamore suo prosequend' summoneas
Recognitores de Viceneto quod sint ad primas Assisas Ballivae, ad cognoscendum
utrum Carucata Terrae in B. quod. G. deforceat R. sit Feodum tenentis vel
vadium novum dictum per manus G. post Coronationem Regis Richardi & pro
quanta, & utrum sit propinquior Haeres ad redimendum vadium, & videatur
interum Terrae, &c.
So that there seems little Variance, either in the Nature or in the Form
of those Writs used here in the Time of Henry 2. And those used in Normandy
when the Contumier was made.
Again, The Use was in England, to limit certain notable Times, within
the Compass of which those Titles which Men design'd to be relieved upon, must
accrue: Thus it was done in the Time of Henry 3 by the Statute of Merton, cap.
8. at which Time the Limitation in a Writ of Right was from the Time of King
Henry I and by that Statute it is reduced to the Time of King Henry 2 and for
Assizes of Mortdancestor they were thereby reduced from the last Return of King
John out of Ireland, which was 12 Johannis, and for Assizes of Novel Disseisin,
a Prima Transfretatione Regis in Normanniam, which was 5 Hen. 3 and which
before that had been Post ultimum redditum Henricus 3 de Britannia, as appears
by Bracton. And this Time of Limitation was also afterwards, by the Statutes of
Westm. I. cap. 39. and West. 2. cap. 2. 46. reduced unto a narrow Scantlet, the
Writ of Right being limited to the First Coronation of King Richard I.
But before the Limitation set by that Statute of Merton, there were
several Limitations set for severals Writs; for we find among the Pleas of King
John's Time, the Limitation of Writs, De Tempore quo Rex Henricus avus noster
fuit vivus & Mortuus; and in a Writ of Aile, Die quo Rex Henricus obiit in
the Time of Henry 2. as appears by Glanville, Lib. 13. cap. 3. there were then
divers Limitations in Use, as in Moridancestors, Post Prima Coronationem
nostram, viz. Henrici secundi, Glanvil. Lib. I. cap. I and touching Assizes of
Novel Disseisin, Vide ibid. cap. 32. where he tells us, Cium quis intra
Assisam, &c. And the Time of Limitation in an Assize, was then post ultimdm
meam Transfretationem, (viz. Henrici Primi) in Normanniam, Lib. 13. cap. 33.
But in a Writ of Right, as also in a Writ of Customs and Services, it was de
Tempore Regis Henrici avi mei, viz. Hen. I. vid. ib. Lib. 12. cap. 10, 16. and
it seems very apparent, that the Limitations anciently in Normandy, for all
Actions Ancestral was Post Primam Coronaiionem Regis Henrici fecundi, as
appears expresly in the Contumier, cap. 111. De Feofe & Gage.
So that anciently the Time of Limitation in Normandy was the same as in
England, and indeed borrowed from England, viz. In all Actions Ancestrel from
the Coronation of Henry 2. And thus in those Actions wherein the Limitation was
anciently from the Coronation of King Richard I was substituted as in the Writ
De Feofe & Gage, in the Contumier, cap. 111. De Feofe & Forme, cap.
112. In the Writ De Ley Apparisan, ib. cap. 24. & cap. 22. "Ascun Gage ne
peut estre requise en Normandy, si il ne suit engage post le Coronement de Roy
Richard ou deins quarante annus": So that the old Limitation, as well for the
Redemption of Mortgages, as for bringing those Writs above-mentioned, was post
Coronationem Regis Henrici Secundi; but altered, as it seems, by King Philip,
the Son of Lewis King of France, after King John's Ejectment out of Normandy,
and since the Time from the Coronation of King Richard I is estimated to bear
Proportion to 40 years. It is probable this Change of the Limitation by King
Philip of France, was about the Beginning of the Reign of King Henry 3 or about
30 or 40 years after the Coronation of Richard I from whose Coronation about 30
years were elapsed, 5 aut. 6 Henrici 3 for anciently the Limitation in this
Case was 30 years.
Fourthly, I now come to the Fourth Inquiry, viz. How this great Parity
between the Laws of England and Normandy came to be effected; and before I come
to it, I shall premise Two Observables, which I would have the Reader to carry
along with him through the whole Discourse, viz. First, That this Parity of
Laws does not at all infer a Necessity, that they should be imposed by the
Conqueror, which is sufficiently shewn in the foregoing Chapters; and in this
it will appear that there were divers other Means that caused a Similitude of
both Laws, without any Supposition of imposing them by the Conqueror. Secondly,
That the Laws of Normandy were in the greater Part thereof borrowed from ours,
rather than ours from them, and the Similitude of the Laws of both Countries
did in greater Measure arise from their Imitation of our Laws, rather than from
our Imitation of theirs, though there can't be denied a Reciprocal Imitation of
each others Laws was, in some Measure at least, had in both Dominions: And
these Two Things being premised, I descend to the Means whereby this Parity or
Similitude of the Laws of both Countries did arise, as follow, viz.
First, Mr Camden and some others have thought, there was ever some
Congruity between the ancient Customs of this Island and those of the Country
of France, both in Matters Religious and Civil; and tells us of the ancient
Druids, who were the common Instructors of both Countries. Gallia Causidicos
docuit facunda Britannos: And some have thought, that anciently both Countries
were conjoined by a small Neck of Land, which might make an easier Transition
of the Customs of either Country to the other; but those Things are too remote
Conjectures, and we need them not to solve the Congruity of Laws between
England and Normandy. Therefore,
Secondly, It seems plain, that before the Normans coming in Way of
Hostility, there was a great Intercourse of Commerce and Trade, and a mutual
Communication, between those Two Countries; and the Consanguinity between the
Two Princes gave Opportunities of several Interviews between them and their
Courts in each others Countries: And it is evident by History, that the
Confessor, before his Accession to the Crown, made a long Stay in Normandy, and
was there often, which of Consequence must draw many of the English thither,
and of the Normans hither; all which sight be a Means of their mutual
Understanding of the Customs and Laws of each others Country, and gave
Opportunities of Incorporating and ingrafting divers of them into each other,
as they were found useful or convenient; and therefore the Author of the
Prologue to the Grand Custumier thinks it more probable, That the Laws of
Normandy were derived from England, than that ours were derived from
thence.
Thirdly, 'Tis evident, that when the Duke of Normandy came in, he
brought over a great Multitude, not only of ordinary Soldiers, but of the best
of the Nobility and Gentry of Normandy; hither they brought their Families,
Language and Customs, and the Victor used all Art and Industry to incorporate
them into this Kingdom: And the more effectually to make both People become one
Nation, he made Marriages between the English and Normans, transplanting many
Norman Families hither, and many English Families thither; he kept his Court
sometimes here, and sometimes there; and by those Means insensibly derived many
Norman Customs hither, and English Customs thither, without any severe
Imposition of Laws on the English as Conqueror: And by this Method he might
easily prevail to bring in, even without the Peoples Consent, some Customs and
Laws that perhaps were of Foreign Growth; which might the more easily be done,
considering how in a short Time the People of both Nations were intermingled;
they were singled in Marriages, in Families, in the Church, in the State, in
the Court, and in Councils; yea, and in Parliaments in both Dominions, though
Normandy became, as it were, an Appendix to England, which was the nobler
Dominion, and received a greater Conformity of their Laws to the English, than
they gave to it.
Fourthly, But the greatest Means of the Assimilation of the Laws of both
Kingdoms was this: The Kings of England continued Dukes of Normandy till King
John's Time, and he kept some Footing there notwithstanding the Confiscation
thereof by the King of France, as aforesaid; and during all this Time, England,
which was an absolute Monarch, had the Prelation or Preference before Normandy,
which was but a Feudal Dutchy, and a small Thing in respect of England; and by
this Means Normandy became, as it were, an Appendant to England, and
successively received its Laws and Government from England; which had a greater
Influence on Normandy than that could have on England; insomuch that oftentimes
there issued Precepts into Normandy to summon Persons there to answer in Civil
Causes here; yea, even for Lands and Possessions in Normandy; as Placito 1
Johannis, a Precept issued to the Seneschal of Norsandy, to summon Robert
Jeronymus, to answer to John Marshal, in a Plea of Land, giving him 40 Days
Warning; to which the Tenant appeared, and pleaded a Recovery in Normandy: And
the like Precept issued for William de Bosco, against Jeoffry Rusham, for Lands
in Corbespine in Normandy.
And on the other Side, Trin. 14 Johannis, in a Suit between Francis
Borne and Thomas Adorne, for certain Lands in Ford. The Defendant pleaded a
Concord made in Normandy in the Time of King Richard I upon a Suit there before
the King, for the Honour of Bonn in Normandy, and for certain Lands in England,
whereof the Lands in Question were Parcel, before the Seneschal of Normandy,
Anno 1099. But it was excepted against, as an insufficient Fine, and varying in
Form from other Fines; and therefore the Defendant relied upon it as a
Release.
By these, and many the like Instances, it appears as follows, viz.
First, That there was a great Intercourse between England and Normandy
before and after the Conqueror, which might give a great Opportunity of an
Assimilation and Conformity of the Laws in both Countries. Secondly, That a
much greater Conformation of Laws arose after the Conqueror, during the Time
that Normandy was enjoyed by the Crown of England, than before. And Thirdly,
That this Similitude of the Laws of England and Normandy was not by
Conformation of the Laws of England to those of Normandy, but by Conformation
of the Laws of Normandy to those of England, which now grew to a great Height,
Perfection and Glory; so that Normandy became but a Perquisite or Appendant of
it.
And as the Reason of the Thing speaks it, so the very Fact itself
attests it. For
First, It is apparent, That in Point of Limitation in Actions Ancestral,
from the Time of the Coronation of King Henry 2 it was anciently so here in
England in Glanville's Time, and was transmitted from hence into Normandy; for
it is no way reasonable to suppose the contrary, since Glanville mentions it to
be enacted here, Concilio procerum; and though this be but a single Point, or
Instance, yet the Evidence thereof makes out a Criterion, or probable
Indication, that many other Laws were in like Manner so sent hence into
Normandy.
Secondly, It appears, That in the Succession of the Kings of England,
from King William I to King Henry 2 the Laws of England received a great
Improvement and Perfection, as will plainly appear from Glanville's Book,
written in the Time of King Henry 2 especially if compared with those Sums or
Collections of Laws, either of Edward the Confessor, William I or Henry I
whereof hereafter.
So that it seems, by Use, Practice, Commerce, Study and Improvement of
the English People, they arrived in Henry 2d's Time to a greater Improvement of
the Laws; and that in the Time of King Richard I and King John, they were more
perfected, as may be seen in the Pleadings, especially of King John's Time: And
tho' far inferior to those of the Times of Succeeding Kings, yet they are far
more regular and perfect than those that went before them. And now if any do
but compare the Contumier of Normandy, with the Tract of Glanville, he will
plainly find that the Norman Tract of Laws followed the Pattern of Glanville,
and was writ long after it, when possibly the English Laws were yet more
refined and more perfect; for it is plain beyond Contradiction, that the
Collection of the Customs and Laws of Normandy was made after the Time of King
Henry 2, for it mentions his Coronation, and appoints it for the Limitation of
Actions Ancestrel, which must at least be 30 years after; nay, the Contumier
appears to have been made after the Act of Settlement of Normandy in the Crown
of France; for therein is specified the Institution of Philip King of France,
for appointing the Coronation of King Richard I for the Limitation of Actions
which was after the said Philip's full Possession of Normandy.
Indeed, if those Laws and Customs of Normandy had been a Collection of
the Laws they had had there before the coming in of King William I, it might
have been a Probability that their Laws, being so near like ours, might have
been transplanted from thence hither; but the Case is visibly otherwise, for
the Contumier is a Collection after the Time of King Richard I, yea, after the
Time of King John, and possibly after Henry 3d's Time, when it had received
several Repairings, Amendments and Polishings, under the several Kings of
England, William I, William 2, Henry I, King Steven, Henry 2, Richard I, and
King John; who were either knowing themselves in the Laws of England, or were
assisted with a Council that were knowing therein.
And as in this Tract of Time the Laws of England received a great
Advance and Perfection, as appears by that excellent Collection of Glanville,
written even in Henry 2's Time, when yet there were near 30 years to acquire
unto a further Improvement before Normandy was lost; so from the Laws of
England thus modelled, polished and perfected, the same Draughts were drawn
upon the Laws of Normandy, which received the fairest Lines from the Laws of
England, as they stood at least in the Beginning of King John's Time, and were
in Effect in a great Measure the Defloration of the English Laws, and a
Transcript of them, though mingled and interlarded with many particular Laws
and Customs of their own, which altered the Features of the Original in many
Points.
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