The History of the Common Law of England [39]
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'