The History of the Common Law of England [45]
I commonly called The Conqueror. I shall now proceed to the History thereof in the ensuing Times, until the Reign of King Edward 2. William I having Three Sons; Robert the eldest, William the next, and Henry the youngest, disposed of the Crown of England to William his second Son, and the Dutchy of Normandy to Robert his eldest Son; and accordingly William 2 commonly called, William Rufus, succeeded his Father in this Kingdom. We have little memorable of him in relation to the Laws, only that he severely press'd and extended the Forest Laws. Henry I, Son of William I and Brother of William 2 succeeded his said Brother in the Kingdom of England, and afterwards expelled his eldest Brother Robert out of the Dutchy of Normandy also. He proceeded much in the Benefit of the Laws, viz. First, He restored the Free-Election of Bishops and Abbots, which before that Time he and his Predecessors invested, Per Anniulum & Bacculum; yet reserving those Three Ensigns of the Patronage thereof, viz. Conge d'Eslire, Custody of the Temporalties, and Homage upon their Restitution. Vide Hoveden, in Vita sua. But Secondly, The great Essay he made, was the composing an Abstract or Manual of Laws, wherein he confirm'd the Laws of Edward the Confessor, Cum illis Emendationibus quibus eam Pater meus emendavit Baronum suorum Concilio; and then adds his own Laws, some whereof seem to taste of the Canon Law. The whole Collection is transcribed in the Red Book of the Exchequer; from whence it is now printed in the End of Lambard's Saxon Laws; and therefore not needfull to be here repeated. They, for the most Part, contain a Model of Proceedings in the County Courts, the Hundred Courts, and the Courts Leet; the former to be held Twelve Times in the Year, the latter twice; and also of the Courts Baron. These were the ordinary usual Courts, wherein Justice was then, and for a long Time after, most commonly administred; also they concern Criminal Proceedings, and the Punishment of Crimes, and some few Things touching Civil Actions and Interests, as in Chapter 70, directing Descents, viz. Si quis sine Liberis decesserit Pater aut Mater ejus in Hereditatem succedant, vel Frater vel Soror, si Pater & Mater desint; si nec hos habeat, Frater vel Soror Patris vel Matris, & deinceps in quintum Genetalium, qui cum propiores in parentela sint hereditario Jure succedant; Et dum virilis sexus extiterit & haereditas ab inde sit Femina non haereditetur; primum Patris Feodum primogenitus Filius habeat. Emptiones vero & deinceps Acquisitiones det cui magis velit, sed si Bockland habeat quam ei Parentes dederint, Mittat eam extra cognationem suam. I have observ'd and inserted this Law, for Two Reasons, viz. First, To justify what I before said, That the Laws of Normandy took the English Laws for their Pattern in many Things; Vide le Contumier, cap. 25, 26, 36, &c. And Secondly, To see how much the Laws of England grew and increased in their Particularity and Application between this Time and the Laws of William I which in Chapter 36, has no more touching Descents but this, viz. Si quis intestatus obierit, liberi ejus haereditatem equsliter dividant. But Process of Time grafted thereupon, and made particular Provisions for particular Cases, and added Distributions and Subdivisions to those General Rules. These Laws of King Henry I are a kind of Miscellany, made up of those ancient Laws, called, The Laws of the Confessor, and King William I and of certain Parts of the Canon and Civil Law, and of other Provisions, that Custom and the Prudence of the King and Council had thought upon, chosen, and put together. King Stephen succeeded, by Way of Usurpation, upon Maud the sole Daughter and Heir of King Hen. I. The Laws of Hen. I grew tedious and ungrateful to the People, partly because new, and so not so well known, and partly because more difficult and severe than those ancient Laws, called, The Confessor's; for Walsingham, in his Ypodigma Neustriae, tells us, That the Londoners