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measure of all just laws, though the size differ according to the various apprehensions of people, or tempers of commonwealths; so that choice, abstracted or considered in itself, is no undeniable badge of a just law, but as it is mixed with other ingredients, as, on the contrary, force and power are not therefore condemned, because they have hands to strike, but because they have no eyes to see, i. e, they are not usually balanced with understanding and right reason in making or executing of laws, the sword having commonly more of the beast in it, than the man.
Otherwise, to be imposed upon by the art of truth, is to be caught by a warrantable guile, and to be kept by force from injuring one's self or others, hath more of courtesy than severeness therein; and in this case reason will cast the scales, and ascribe more to a seeing force, than a blind choice; the righteousness or unrighteousness of things depends not upon the circumstances of our embracing or rejecting them, but upon the true nature of the things themselves: Let righteousness and truth be given out to the nation, we shall not much quarrel at the manner of conveighance, whether this way, or that way, by the beast, or by the man, by the vine, or by the bramble.
There is a two-fold rule of corrupt laws.
1. Principles of self and worldly greatness in the rulers of the world, who, standing upon the mountain of force and power, see nothing but their own land round about them, and make it their design to subdue laws as well as persons, and inforce both to do homage to their wills.
2. Obsequiousness, flattery, or compliancy of spirit to the foresaid principles, is the womb of all degenerous laws in inferior ministers. It is hard, indeed, not to swim with the stream, and some men had rather give up their right than contend, especially upon apparent disadvantage; it is true, these things are temptations to men, and it is one thing to be deflowred, but to give up one's self to uncleanness is another. It is better to be ravished of our freedoms, corrupt times have a force upon us, than to give them up as a free-will offering to the lusts of great men, esa' pecially if we ourselves have a share with them in the same design.
Easiness of spirit is a wanton frame, and so far from resisting, that it courts an assault; yea, such persons are prodigal of other men's stock, and give that away for the bare asking, which will cost much labour to regain. Obsequious and servile spirits are the worst guardians of the people's rights.
Upon the advantage of such spirits, the interest of rulers hath been heightened in the world, and strictly guarded by severest laws; and truly, when the door of an interest flies open at a knock, no marvel that prince's enter in.
And, being once admitted into the bosom of the law, their first work is to secure themselves; and here what servility and flattery are not able to effect, that force and power shall: And in order hereto a guard of laws is impressed to serve and defend prerogative power, and to secure against the assaults of freedom; so that, in this case, freedom is not able to stir without a load of prejudice in the minds of men, and (as a ground . thereof) a visible guilt, as to the letter of the law.
But how can such laws be good, which swerve from their end? The end of just laws is the safety and freedom of a people,
As for safety, just laws are bucklers of defence; when the mouth of violence is muzzled by a law, the imocent feed and sleep securely; when the wolfish nature is destroyed, there shall then be no need of law; as long as that is in being, the curb of the law keeps it in restraint, that the great may not oppress or injure the small.
As for safety, laws are the manacles of princes, and the guards of private men. So far as laws advance the people's freedoms, so far are they just, for, as the power of the prince is the measure of unrighteous laws, so just laws are weighed in the balance of freedom. Where the first of these take place, the people are wholly slaves; where the second, they are wholly free; but most commonwealths are in a middle posture, as having their laws grounded partly upon the interest of the prince, and partly upon the account of the people, yet so as that prerogative hath the greatest influence, and is the chiefest ingredient in the mixture of law, as in the laws of England will by and by appear,
CHAP. II. The failures of our English laws, in their original, rule, and end, THE influence of force and power, in the sanction of our English laws, appears by this, that several alterations have been made of our laws, either in whole, or in part, upon every conquest. And, if at any time the conqueror hath continued any of the ancient laws, it hath been only to please and ingratiate himself into the people, for so generous thieves give back some part of their money to travellers, to abate their zeal in pursuit.
Upon this ground I conceive it is, why Fortescue and some others do affirm *, that, notwithstanding the several conquests of this realm, yet the same laws have still continued. His words are these; 'Regnum Angliæ primò per Britones inhabitatum est, deinde per Romanos regulatum, iterumq; per Britones, ac deinde per Saxones possessum, qui nomen ejus ex Britanniâ in Angliam mutaverunt; extunc per Danos idem regnum parumper dominatum est, et iterum per Saxones, sed finaliter per Nor. manos, quorum propago regnum illud obtinet in præsenti, et in omnibus nationum harum et regum earum temporibus, regnum illud, iisdem quibus jam regitur consuetudinibus continue regulatum est.' That is, . The kingdom of England was first inhabited by the Britons, afterwards it was governed by the Romans; and again by the Britons, and after that by the Saxons; who changed its name from Britain to England. In process of time the Danes ruled here, and again the Saxons, and last of all the Normans, whose posterity governeth the kingdom at this day; and, in all the times of these several nations, and of their Kings, this realm was still ruled by the same customs, that it is now governed witbal! Thus far Fortescue in the reign of Henry the Sixth. Which opinion of his can be no otherwise explained, besides what we have already said, than that succeeding conquerors did still retain those parts of former laws, which made for their own interest; otherwise it is altogether inconsistent with reason, that the Saxons, who banished the inhabitants, and changed the name, should yet retain the laws of this island. Conquefors seldom submit to the law of the conquered (where conquests are
: Fortesc. Cap. 17.
compleat, as the Saxons was) but, on the contrary, especially when they bare such a mortal feud to their persons: Which argument (if it were alone) were sufficient to demonstrate, that the Britons and their laws were banished together; and to discover the weakness of the contrary opinion, unless you take the comment, together with the text, and make that explanation of it.which we have done.
And yet this is no honour at all to the laws of England, that they are : such pure servants to corrupt interests, that they can keep their places under contrary masters; just and equal laws will rather endure perpetual imprisonment, or undergo the severest death than take up arms on the other side (yea princes cannot trust such laws) An hoary head (in a law) is no crown, unless it be found in the way of righteousness. Prov. xvi. 31.
By this it appears, that the notion of fundamental law is no such idol as men make it: For, what, I pray you, is fundamenial law; but such custons as are of the eldest date, and longest continuance? Now, free. dom being the proper rule of custom, it is more fit that unjust customs should be reduced, that they may continue no longer, than that they should keep up their arms, because they have continued so long. The more fundamental a law is, the more difficult, not the less necessary, to be reformed. But to return.
Upon every conquest, our very laws have been found transgressors, and, without any judicial process, have undergone the penalty of abrogation; not but that our laws needed to be reformeil, but the only reason in the conqueror was his own will, without respect to the people's rights; and, in this case, the riders are changed, but the bardens contipued; for mere force is a most partial thing, and ought never to pass in a jury upon the freedoms of the people; and yet thus it hath been in our English nation, as, by examining the original of it, may appear; and, in bringing down its pedigree to this present time, we shall easily perceive, that the British laws were altered by the Romans, the Roman law by the Saxons, the Saxon law by the Danes, the Danish law by King Edward the Confessor, King Edward's laws by William the Conqueror, which, being somewhat moderated and altered by succeeding Kings, is the present common law in force amongst us, as will hy and by appear.
The history of this nation is transmitted down to us upon reasonable credit for seventeen-hundred years last past; but whence the Britons drew their original (who inhabited this island before the Roman conquest) is as uncertainly related by bistorians, as what their laws and constitutions were; and truly, after so long a series of times, it is better to be silent, than to bear false witness. But certain it is, that the Britons were under some kind of
governo ment, both martial and civil, when the Romans entered this island, as having perhaps borrowed some laws from the Greeks, the refiners of human spirits, and the ancientest inventers of laws. And this may seem more than conjectural, if the opinion of some may take place, that the Phænicians, or Greeks, first sailed into Britain, and mingled customs and languages together. For it.cannot be denied, that the etymon of many British words seems to be Greekish, as (if it were material to this purpose) might be clearly shewn. ,
But it is sufficient for us to know, that whatever the laws of the Britons were, upon the conquest of Cæsar, they were reviewed and altered, and the Roman law substituted in its room, by Vespasian, Papinian, and others, who were in person here; yea divers of the British nobles were educated at Rome, on purpose to inure them to their laws.
The civil law, remaining in Scotland, is said to have been planted there by' the Romans, who conquered a part thereof. And this nation was likewise subject to the same law, till the subversion of this state by the Saxons, who made so barbarous a conquest of the nation, and so razed out the foundation of former laws, that there are less footsteps of the civil law in this, than in France, Spain, or any other province under the Roman power.
So that, whilst the Saxons ruled here, they were governed by their own laws, which differed much from the British law; some of these Saxon laws were afterwards digested into form, and are yet extant iu their original tongue, and translated into Latin.
The next alteration of our English laws was by the Danes, who repealed and nulled the Saxon law, and established their own in its stead. Hence it is, that the laws of England do bear great affinity with the customs of Denmark, in descents of inheritance, tryals of right, and several other ways. It is probable, that originally inheritances were divided in this kingdom amongst all the sons by gavel kind, which custom seems to have been instituted by Cæsar, both amongst us and the Germans (and as yet remains in Kent, not wrested from them by the conqueror); but the Danes, being ambitious to conform us to the pattern of their own country, did doubtless alter this custom, and allot the inheritance to the eldest son; for that was the course in Denmark, as Walsingham reports in his Upodigma Neustrie : Pater cunctos filios adultos à se pellebat, præter unuir quem hæredem sui juris relinquebat, i. e. “Fathers did expose and put forth all their sons, besides one whom they made heir of their estates.'
So likewise, in tryals of right by twelve men, our customs agree with the Danish, and in many other particulars, which were introduced by the Danes, disused at their expulsion, and revived again by Willian the Conqueror.
For, after the massacre of the Danes in this island, King Edward the Confessor did again alter their laws; and, though he extracted many particulars out of the Danish laws, yet he grafted them upon a new stock, and compiled a body of laws, since known by his name, under the protection of which the people then lived ; so that here was another al, teration of our English laws.
And, as the Danish law was altered by King Edward, so were King Edward's laws disused by the conqueror, and some of the Danish customs again revived. And, to clear this, we must consider, that the Danes and Normans were both of a stock, and situated in Denmark, but called Normans from their northern situation, from whence they sailed into France, and settled their customs in that part of it, which they called Normandy by their own name, and from thence into Britain. And here comes the great alteration of our English laws by William the Conqueror, who selecting some passages out of the Saxon, and some
out of the Danish law, and, in both, having greatest respect to his own interest, made by the rule of his government; but his own will was an exception to this rule, as often as he pleased.
For the alterations, which the conqueror brought in, were very great; as the clothing his laws with the Norman tongue, the appointment of lerms at Westminster; whereas, before, the people had justice in their own countries, there being several courts in every county; and the supreme court in the county was called generale placitum, for the determining of those controversies which the parish, or the hundred court, could not decide; the ordaining of sheriffs and other court officers in every county, to keep people in subjection to the crown, and, upon any attempt for redress of injustice, life and land was forfeited to the King Thus were the possessions of the inhabitants distributed amongst his followers, yet still upon their good behaviour, for they must bold it of the crown, and, in case of disobedience, the propriety did revert: And, in order hereunto, certain rents yearly were to be paid to the King. Thus, as the lords and rulers held of the King, so did inferior persons hold of the lords : Hence come landlord, tenant, holds, tenures, &c. which are slavish ties and badges upon men, grounded originally on conquest and power.
Yea, the laws of the conqueror were so burthensome to the people, that succeeding Kings were forced to abate their price, and to give back some freedom to the people. Hence it came to pass, that Henry the First did mitigate the laws of his father the conqueror, and restored those of King Edward; hence likewise came the confirmation of Magna Charta and Chartu Forestæ, by which latter, the power of the King was abridged, in enlarging of forests; whereas the conqueror is said to have demolished a vast number of buildings, to erect and enlarge new forests by Salisbury, which must needs be a grievance to the people. These freedoms were granted to the people, not out of any love to them, but extorted from princes by fury of war, or incessantness of address; and, in this case, princes, making a virtue of necessity, have given away that, which was none of their own, and they could not well keep, in hope to regain it at other times; so that what of freedom we have, by the law, is the price of much hazard and blood. Grani, that the people seem to have had a shadow of freedom in chusing of laws, as consenting to them by their representatives, or proxies, both before and since the conquest (for even the Saxon Kings held their conventions or parliaments) yet whosoever shall consider how arbitrary such meetings were, and how much at the devotion of the prince, both to summon and dissolve, and withal how the spirit of freedom was observed and kept under, and likewise how most of the members of such assemblies were lords, dukes, earls, pensioners to the prince, and the royal interest, will easily conclude, that there hath been a failure in our English laws, as to matter of election or free choice, there having been always a rod held over the chusers, and a negative voice, with a power of dissolution, having always nipped freedom in the bud.
The rule of our English laws is as faulty as the rise. The rule of our ļaws may be referred to a two-fold interest.