第31章 VI. (3)

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.