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III. The necessity of the reformation of the laws of England; together with the excellency (and yet difficulty) of this work.
IV. The corrupt interest of lawyers in this commonwealth.
BY JOHN WARR.
Leges Anglice plena: sunt tricarum, ambiguitatum, sibiqut contraries; fuerunt siquidem excogitatce, alque sancitce a Narmarmis, quibus nulla gens magis litigiosa, atque in controversiis machinandis ac prqferendit fallacior reperiri potest.
Englished thus: The laws of England are full of tricks, doubts, and contrary to themselves; for they were invented and established by the Normans, which were of all nations the most quarrelsome, and most fallacious in contiiving of controversies and suits.
London, printed for Giles Calvert, at the Black Spread Eagle, at the West End of St. Paul's- 1649. Quarto, containing eighteen pages.
Containing the just measure of all good laws, in their original, rule, and end: together with a reflexion (by way of Antithesis) upon unjust laws.
THOSE laws, which do carry any thing of freedom in their bowels, do owe their original to the people's choice: and have been wrested from the rulers and princes of the world, by importunity of intreaty, or by force of arms; for the great men of the world, being invested with the power thereof, cannot be imagined to eclipse themselves or their own pomp, unless by the violent interposition of the people's spirits, who are most sensible of their own burdens, and most forward in seeking relief. So that exorbitancy and injustice, on the part of rulers, was the rise of laws in behalf of the people; which consideration will afford us this general maxim, That the pure and genuine intent of laws was to bridle princes, not the people, and to keep rulers within the bounds of just and righteous government; from whence, as from a fountain, the rivulet of subjection and obedience, on the people's part, did reciprocally flow forth, partly to gratify, and partly to encourage good and virtuous governors: so that laws have but a secondary reflexion on the people, glancing only at them, but looking with a full eye upon princes. Agreeable to this is that of Cicero, Lib. ii. de Offic. whose words are to this effect: "Cum premeretur ulim multitude ab its qui majores opes habtbant, statim confugiebat ad unum aliquem virtute prastantem, fyc. Jus enim semper qucesitum est cequabile, neq; enim aliter essetjus; id si ab una bono fy justo viro consequebantur, eo erant contenti; cum id minus cuutingeret, leges sunt invents," fyC. (i. e.) When the people did obtain redress of their wrongs from some just and good man, they were satisfied therewith; but, when they failed thereof, they found out laws, &c, &c.
From which assertion we may deduce a two-fold corollary.
J. That at the foundation of governments justice was in men, before it came to be in laws; for the only rule of government, to good princes, was their own wills; and people were content to pay them their subjection upon the security of their bare words: so here in England, in the days of King Alfied, the administration of justice was immediately in the crown, and required the personal attendance of the King.
2. But this course did soon bankrupt the world, and drive men to a necessity of taking bond from their princes, and setting limits to their power; hence it came to pass, that justice was transmitted from men to laws, that both prince and people might read their duties, offences, and punishments before them.
And yet such hath been the interest of princes in the world, that the sting of the law hath been plucked out as to them, and the weight of it fallen upon the people; which hath been more grievous, because out of its place, the element of the law being beneficial, not cumbersome within its own sphere. Hence it is, that laws (like swords) come to be used against those which made them; and, being put upon the rack of self and worldly interest, are forced to speak what they never meant, and to accuse their best friends, the people. Thus the law becomes any thing or nothing, at the courtesy of great men, and is bended by them like a twig: Yea, how easy is it for such men to break those customs which will not bow, and to erect traditions, of a more complying temper, to the wills of those, whose end they serve. So "that law comes to be lost in will and lust; yea, lust by the adoption of greatness is enacted law. Hence it comes to pass, that laws upon laws do bridle the people; and run counter to their end; yea, the farther we go, the more out of the way. This is the original of unjust laws.
No marvel that freedom hath no voice here, for an usurper reigns; and freedom is proscribed like an exile, living only in the understandings of some few men, and not daring to appear upon the theatre of the world.
But yet the minds of men are the great wheels of things; thence come changes and alterations in the world; teeming freedom exertsand puts forth itself; the unjust world would suppress its appearance, many fall in this conflict, but freedom will at last prevail, and give law to all things.
So that here is the proper fountain of good and righteous laws, a spirit of understanding big with freedom, and having a single respect to people's rights; judgment goes before to create a capacity, and freedom followsafter to fill it up. And thus law comes to be the bank of freedom, which is not said to straighten, but to conduct the stream. A people, thus watered, are in a thriving posture; and the rather, because the foundation is well laid, and the law reduced to its original state, which is the protection of the poor against the mighty.
If it were possible for a people to chuse such laws as were prejudicial to themselves, this were to forsake their own interest: Here (you will say) is free choice; but bring such laws to the rule, and there is a failure there; the rule of righteous laws are clear and righteous principles, acpording to the several appearances of truth within us, for reason is the 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 ait 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 isa 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 lawsininferior'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, especially 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 princes enter in.
And, being once admitted into the bosom of the law, their first work is to secure themtelves; 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 muziled by a law, the innocent 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.
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: 'Kegnum Angliae primo per Britones inhabitatum est, deinde per Romanos regulatum, iterumq; per Britones, ac deinde per Saxonespossessum, qui nomen ejus ex Britannia in Angliam Tnutaverunt; extunc per Danos idem regnum parumper'dominatum est, et iterum per Saxones, sed finaliter per Normanos, quorum propago regnum illud obtinet in praesenti, et in omnibus nationum harum etregum earum temporibus, regnum illud, iisdemquibus jam regitur consuetudinibus continufe 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 withal' 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. Conquerors seldom submit to the law of the conquered (where conquests are
• Forteic. Csp. IT.
complcat, 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 otherside (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: Tor, what, 1 pray you, is fundamental law, but such customs as are of the eldest date, and longest continuance? Now, freedom 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 reformed, 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 burdens continued; for mere force isa 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 by 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 historians, 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 government, 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 plate, that the Phoenicians, 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.