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.
