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I A M far from a vain Imagination that I have perform'd my Part as a Tranflator, or as an Au- thor, with the Perfedion the Subjed deferves ; but there being little or nothing concerning it in our Language, and both Authors and Readers confounding the various Manners of Thinking in the general Term Thought, by which great Con- fufion happens, and much is loft both of In- ftrudion and Pleafure, I could not help fancying that an Attempt of this Kind would be equally ufeful and agreeable ; and having made greater Co Ucdions for it, than perhaps any other Man had done, I was willing to offer them to the Publick for thofe Improvements and Embel- lifhments which may be expeded from better Talents, and more Opportunities. How many great Genius's have mifcarry'd, by not thinking rightly on Subjects they were othcrwife well able to handle and adorn, and for Want of confidering that Truth, in all the Pro- ductions of the Mind, is what only renders them agreeable and ufeful, and that the falfc Brillantof Thoughts is like the Glare of Lightning, which dazles and hurts the Sight, as that does the Underftanding ! Co'-Ji'lcy, confounded Metaphyficks and Love, and turn'd Wit into Point.

Thus it was that Bilhop Andrews^ and the moft eminent Divines at the Beginning of the laft Century, reduc'd Preaching to Punning, and the Eloquence of the Chair to the Buffoonry of the Stage. It was thus that 'Dry den alio confounded Epick Poetry and Elegy, Tragedy and Farce, and taught his Contemporary Poets, by his Ex- ample, to make their Heroes and Heroines, in the Agonies of Defpair and Death, figh out their great Souls in Simile and Rhime. Are all hut Paint upon a beauteous Face, And in Defcription only claim a Place ; But to make Rage declaim^ and Grief difcourfc^ From Lover in Defpair fine 'Things to fiorce, Muft needs fuccecd ; for who can choofe but pity A dying Hero miferahly witty ?

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This is a digital copy of a book that was preserved for generations on library shelves before it was carefully scanned by Google as part of a project to make the world's books discoverable online. This monstrous tribute* might well call forth * It was in reference to im- : nte assessments of the kind mentioned in the teit, that the Spanish Government were con- stantly providing a remedy.

It has survived long enough for the copyright to expire and the book to enter the public domain. Many proofs of their assiduity on this point might he adduced.

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Take Steps EMPOWERS patients and families while offering a safe and welcoming environment to CONNECT and INSPIRE one another.Usage guidelines Google is proud to partner with libraries to digitize public domain materials and make them widely accessible. 1 esta mode- ration, £ tassa, se encarg6 ultima- mente en las provincias del Peru, al Virrey don Francisco de Toledo, que las anduvo, i visit6 todas personalmente para el efeto, i las dexd hechas am gran suavidad, equidad, i desireza, como lore fie ren Acosta, i Agia, i el Licenciado Marienzo, que le acompan6 f ayud6 en lo mas de ellas; ( en la Nueva- Ertpagna 4 la Audiencia de Mexico, i al Virrey don Antonio de Mendoza, que tambien lo ajus- taron, 1 suavizaron quanto pudi- eron, como lo testifica Fr. B XX encias of Guatemala and Mexico, named Zurit-a. Public domain books belong to the public and we are merely their custodians. Juan de Torquemada." — Solobzano, Politico Indiana, lib. **■•*■ JJe also informed the Emperor of the excessive Evident of nut are of the imposts levied upon the Indians, tl Tzt^ta, an{ * declared that it was one of the causes which led to the depopulation of the New World,* Another cause of the destruction of the Indians, according to Zurita, was their being compelled to work at the great edifices erected in the Spanish towns. The Inducements I fhou'd have had to have made the like Addrefs to my dcceas'd Friend, were his fine Learning, Genius, Tafte, Wit, Judgment, Vivacity, and Humanity, which are but a Part of your Charadter, heightened by a perfed Knowledge of Men, and the Bufinefs of the World, by fuperior Dignity and Fortune; where we find verify 'd what Mr.^ope faid in Flattery of one of the late Queen's lateft Mini- fters, A Genius not more d'lftinguijh' d hi the great Scenes of Bufinefs^ than in all the ufe- ful and entertaining Tarts of Learning : But it was thofe other valuable and amiable Qiiali- ties which wou'd have induced me to have had Recourfe to the Protedion of Sir Samuel Garth, as they neceilitate me to defire Yours : For with- out Learning, Genius, Tafte, Wit, and Judg- ment, no Patron cou'd have proteded a Book which treats of nothing elfe, and that in the moft Delicate and Initrudive Manner.A public domain book is one that was never subject to copyright or whose legal copyright term has expired. That the Spanish Government ultimately succeeded in effecting something like moderation in the t i paid by the Indians, may be seen from the following pas- sage; — "En una oedula de Vulladolid, de dos do Fubrero del aiio de 1549, 1 otros de log anas de l S5 l * 1 55** l 57 6 * que ***«* en el die ho segondo tomo, I M ban reoovado par la del servicio personal del alio de 1 60 1, cap, J t mandan, que para que se execute mejor to referido, i en mayur all* vio de I os Indioa, los tributes se let carguen, i taasen on lo que mas acomudaniente pudierea Other Indian Protectors besides Las Casas. Upon such a tribute Las Casas rests his * 3 * assertion that the Indians are deprived of their goods and of their liberty, and that it is impos- sible not to apply the epithet of tyrannical to the government under which they live; for, ac- cording to Aristotle, every government of a free people ought to have for its object the temporal and the spiritual good of the members of the body politic. Whether a book is in the public domain may vary country to country. 347 indignation, even from a man of ninety years of B. Stich was the intrepid writing, skilfully interwoven with the most important facts, which Las Casas had the energy to produce at this advanced period of his life. May his interest in our legal his- tory stimulate some of us to take a like interest in the origins of that related system for which he has done so much ! ^ Thomas Stapleton, Magnl Rotuli Soaccarii Xormanniae (3 vols., 1840-44). No less important and attractive to us, for a later stage in our development, should be the history of Norman and French law, and the researches of the great scholars who labor on it. A fragment of the roll of 1184 was published by Leopold Delisle, Magni Rotuli Scaccarii Xormanniae Fragmentum (Caen. ' These are most accessible in Leopold Victor Delisle's Recueil de Jugements de I'Exchiquier de Xormandie au Xllle siecle (Paris, 1864). * The former has lately been edited by Tardif under the title, Le tr^s ancien Coutumicr de Xormandie (Rouen, 1881); the latter may be found in A. Marnier's fitablissements et Coutumes, Assises et Arrets de r Exchiquier de X'ormandie (Paris, 1839). MAITLAND: MATERIALS FOR HISTORY 71 calls itself Su7nma de Legihus Consuetudinum Normanniae, or Summa de Legihus in Curia Laicali, and was composed before 1280 and probably between 12.1 There are a few later law-books of minor importance. Normandy is poor in diplomata of early date and, according to Brunner, many of those that exist are still unprinted; but in the Collection de Documents In- edits is a small but ancient (1030-91) Cartulaire de la Sainte Trinite du Mont de Rouen, edited by Deville in 1841 ; Leo- pold Delisle has published a Cartulaire Normand de Philippe Auguste, Louis VIII, Saint Louis, et Philippe le Hard'i (Caen, 1852) ; and there exists in the English Record office a manuscript collection made by Lechaude d'Anisy, entitled Cartulaire de la Basse Normandie, from various Norman Archives.^ III. Both the small facts and the large features of our last six centuries we shall then know as well at least as the Germans and the French already know their own much more complicated story. In his view, Norman law is Frankish: Frankish institutions take out a new lease of life in Normandy, when they are falling into decay in other parts of the quondam Frankish Empire, The chief materials ^ for Norman legal history are : (1) Exchequer Rolls. — Sir, we do not think that this deed ought to bind us, inasmuch as it was executed out of England. The Judges and the Serjeants together formed the highest branch of the legal profession — the order of the coif; so that to become a Serjeant was a more » Y. The other contributors to the volume will surely pardon the Committee for specially mentioning its appreciation of the interest shown and the labor done by Professor Heinrich Brunner in re-writing for this Series his essay on the Sources of Enghsh Law. We possess, in whole or in part, rolls for the years 1180, 1184., 1195, 1198, 1201-03.2 They answer to the English Pipe Rolls. We have several private collections of judgments of the Exchequer in the thirteenth century, beginning in 1207, ^ drawn from official records not now forthcoming. We have to distinguish: (i) A compilation, of which both Latin and French ver- sions exist, kno^m as Stafuta et Consuetudines Xormanniae, or Etablissements et Coutumes de Xormandie; * but this com- pilation proves to be composed of two different works: (a) a treatise which Brunner gives to the last years of the twelfth or the first years of the thirteenth century, and which Tardif dates in 1199 or 1200; and (b) a later treatise compiled a little after 1218 according to Brunner, about 1220 according to Tardif. The Latin version of this, which is older than the French, ^ In the following remarks I rely partly upon Brunner, partly upon Ernest Joseph Tardif, who is engaged upon editing the Norman Cou- tumiers. SELECT ESSAYS IN ANGLO-AMERICAN LEGAL HISTORY Volume Two \ Digitized by the Internet Archive in 2009 with funding from Ontario Council of University Libraries SELECT ESSAYS IN ANGLO-AMERICAN LEGAL HISTORY By VAEIOUS AUTHOES COMPILED AND EDITED BY A COMMITTEE OF THE ASSOCIATION OF AMERICAN LAW SCHOOLS IN THEEE VOLUMES VOLUME II BOSTON LITTLE, BEOWN, AND COMPANY 1908 Copyright, 1908, Bt Little, Brown, and Compxnti. The doctrines of Stubbs, Gneist and Brunner have a great deal in common. All rights reserved PREFACE THE first volume of this series seems to have met with the commendation of those for whom it was intended. It is im- possible now to maintain that William just swept away Eng- lish in favor of Norman law. The solid tangibleness of the ultimate de- tails gives somehow its own peculiar satisfaction. Before the crowd One claimed that he had paid the fine, and one Denied that aught had been received, and both Called for the sentence that should end the strife." So through Procedure and Courts to Property and Torts these detailed cameos make up an interesting whole. INIuch evidently remains to be done for Norman law, much that will hardly be done by an Englishman ; but already of late years a great deal has been gained, and the student of Glanvill must have the c Of Tval Tres ancien Cou Uimier constantly in his hand. — We are not bound to do so for the reason aforesaid. " You can- not deny," said Howard J., " that the tenements as well in one vill as in the other were holdcn by one and the same serv- ice ; and you are seised of the tenements in one vill ; will you then have the Qg^ and the halfpenny too." ^ In a case of Edward Ill's reign, Willoughby J. " That is not law now," said his brother Sharshulle. The Es- says tell each its separate story of legal history ; the varied succession of pictures pleases, like the assembled incidents of daily life depicted by Homer on Achilles's shield: " There he placed two fair cities. Some vi PREFACE day the missing spaces will be filled in, and the present tra- cings revised and re-set. In three very accessible places Heinrich Brunner lias sketched the history of law in Normandy:, (1) Das an" 70 I- SOURCES glonormannische Erhfolgesystem (Leipzig, 1869); (2) Die Entstehung der Schwur gerichte (Berlin, 1871) ; (3) Ueber- blick iiber die Geschichte der franzbsischen, normannischen ■ und englischen Rechtsquellen, in Holtzendorff's Encyklo- pddie der Rechtszcisseyischaft (1882), page 297. SOURCES The satisfaction of Counsel wlien the Judge had given a rul- ing in their favour sometimes found odd expression. " Blessed is the womb that bare thee," he said to INIetingham J. ^ Their dissatisfaction, too, Is clearly marked : I • " Toudehy. " One more learned than you are adjudged it," retorted Will- oughby.^ The clergy of the province of Canterbury, argued Counsel, do not meddle with the clergy of the province of York, and neither is bound by a grant made by the other — • " Because the Jews have no dealings with the Samaritans." ^ The relations of Bar and Bench The relation between the Serjeants the Judges was not quite the same as the relation between the Bar and Bench in modern times.




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