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But it is sufficient for us to know, that whatever the laws of the Britons were, upon the conquest of Caesar, 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 in 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The next alteration of our English laws was by the Danes, who repealed and nulled the Saxon law, and established their own in its stead.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 Caesar, 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 WaUingham reports in his Upodigma Nevstrice: Pater cunctos filios adultos H se pellebal, prceter unum quem hceredem 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 William 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 alteration 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 terms 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 generate 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 hold 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 succeedingKings 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 Foresta, 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. Grant, 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 laws may be referred to a twofold interest.
1. The interest of the King, which was the great biass and rule of the law; and other interests but tributary to this: Hence it is, all our laws run in the name of the King, and are carried on in an orb above the sphere of the people; hence is that saying of Philip Honor. Cum A Guticlmo conquestore, quod perindt est ac, tyrannus, institute sint leges Anglia, admirandum non est quid solam principis utilitatem respiciant, subditorvm verb bomim desertum esse videatur. i e. 'Since the laws of England were instituted by William the Conqueror, or tyrant, it is no wonder that they respect only the prerogative of the King, and neglect the freedom of the people.'
2. The interest of the people, which, like a worm, when trod upon, did turn again, and in smaller iota's and diminutive parcels, wound in itself into the texture of the law, yet so as that the royal interest was above it, and did frequently suppress it at its pleasure. The freedom, which we have by the law, owns its original to this interest of the people, which, as it was formerly little known to the world, so was it misrepresented by princes, and loaden with reproaches, to make it odious; yea, liberty, the result thereof, was obtained but by parcels, so that we have rather a taste than a draught of freedom.
If then the rise and rule of our law be so much out of tune, no marvel that we have no good musick in the end, but bondage, instead of freedom, and instead of safety, danger. For the law of England is so full of uncertainty, nicety, ambiguity, and delay, that the poor people are insnared, not remedied thereby: The formality of our English laws is that to an oppressed man, which school-divinity is to a wounded spirit; when the conscience of a sinner is pierced with remorse, it is not the nicety of the casuist, which is able to heal it, but the solid experience ^>f the grounded Christian.
It is so with the law, when the poor and oppressed want right, they meet with law ; which, as it is managed, is their greatest wrong; so that law itself becomes a sin, and an experimented grievance in this nation. Who knows not that the web of the law iutangles the small flies, and dismisseth the great; so that a mite of equity is worth a whole bundle of law: Yea, many times the very law is the badge of our oppression, its proper intent being to inslavc the people; so that the inhabitants of this nation arc lost in the law, such and so many are the references, orders, and appeals, that it were better for us to sit down by the loss, than to seek for relief; for law is a chargeable physician, and he, which hath a great family to maintain, may well take large fees.
For the officers, or menial servants of the law, are so numerous, that the price of right is too high for a poor man; yea, many of them, procuring their places by sinister ways, must make themselves savers by the vails of their office; yea, it were well if they rested here, and did not raise the market of their fees, for they, that buy at a great rate, must needs sell dear.
But the poor and oppressed pay for all. Hence it is, that such men grow rich upon the ruins of others, and whilst law and lawyer are advanced, equity and truth are under hatches, and the people subject to a legal tyranny, which of all bondages is one of the greatest.
Mere force is its own argument, and hath nothing to plead for it, but itself; but, when oppression comes under the notion of law, it is most insnaring; for sober-minded men will part with some right to keep the rest, and are willing to bear to the utmost; but perpetual burdens will break their backs (as the strongest jade tires at last) especially when there is no hope of relief.
Of the necessity of the Reformation of the laws of England, together with the excellency (and yet difficulty,) of the work.
THE more general a good is, the more divine and God-like. Grant, that prerogative laws are good for princes, and advantageous to their interest, yet the shrubs are more in number than the cedars in the forest of the world; and laws of freedom, in behalf of the people, are more useful, because directed to a more general good. Communities are rather to be respected, than the private interests of men.
Good patriots study the people, as favourites do the prince; and it is altogether impossible, that the people should be free, without a reformation of the law, the source and root of freedom. An equal and speedy distribution of right ought to be the abstract and epitome of all laws; and if so,
Why are there so many delays, turnings, and windings in the laws
of England? Why is our law a meander of intricacies, where a man must have contrary winds before he can arrive at his desired port? Why are so many men destroyed for want of a formality and punctilio in law? And who would not blush, to behold seemingly grave and learned sages to prefer a letter, syllable, or word, before the weight and merit of a cause? Why do the issue of most law-suits depend upon precedents, rather than the rule, especially the rule of reason? Why are men's lives forfeited by the law upon light and trivial
grounds? Why do some laws exceed the offence? And, on the contrary, other offences are of greater demerit than the penalty of the law? Why is the law still kept in an unknown tongue*, and the nicety of it rather countenanced than corrected?Why are not courts rejourned into every county, that the people may have right at their own doors, and such tedious journey ingst may be prevented? Why, under pretence of equity, and a court of conscience, are our wrongs doubled and trebled upon us, the Court of Chancery being as extortionous J, or more than any other court? Yea, it is a considerable queere, whether the Court of Chancery were not first erected merely to elude the letter of the law, which, though defect tive, yet had some certainty; and, under a pretence of conscience, to devolve all causes upon mere will, swayed by corrupt interest. If former ages have taken advantage to mix some wheat with the tares, and to insert some mites of freedom into our laws; why should we neglect, upon greater advantages, to double our files, and to produce the perfect image of freedom; which is therefore neglected, because not known. How, otherwise, can we answer the call of God, or the cries of the people, who search for freedom as for an hid treasure? Yea, how can we be registered, even in the catalogue of heathens, who made less shew, but had more substance, and were excellent justiciaries, as to the people's rights: so Solon, Lycurgus, &c. Such moral appearances in the minds of men are of sufficient energy for the ordering of commonwealths, and it were to be wished, that those states, which are called Christian, were but as just as heathens in their laws, and such strict promoters of common right.
* This has been reformed in this our gracious King's reign.
t To Westminster from all parts of England.
t In those days; but it has undergone many and good reforms since this author's time.
Pure religion is to visit the fatherless, and the most glorious fast to abstain from strife, and smiting with the fist of wickedness; in a word, to relieve the oppressed, will be a just guerdon and reward for our pains and travel in the reformation of the law.
And yet this work is very hard, there being so many concerned therein, and most being busier to advance and secure themselves, than to benefit the publick; yea, our physicians being themselves parties, and engaged in those interests, which freedom condemnsj-will hardly be brought to deny themselves, unless upon much conviction and assistance from above; and yet this we must hope for, that the reformation of the times may begin in the breasts of our reformers, for such men are likely to be the hopeful fire of freedom, who have the image of it ingrafted in their own minds.
Of the corrupt interest of lawyers in the commonwealth of England.
OF interests, some are grounded upon weakness, and some upon corruption. The most lawful interests are sown in weakness, and have their rise and growth there: apostle, prophet, evangelist, were only for the perfecting of the saints; physicians are of the like interest to the body; marriage is but an help and comfort in a dead state, for in the resurrection they neither marry, nor are given in marriage.
Interests grounded upon weakness may be used, as long as our weakness doth continue, and no longer; for the whole need not a physician, &c. such interests are good, profitable, useful; and in their own nature self-denying, i. e. contented to sit down, and give way to that strength and glory to which they serve.
But the interest of lawyers, in this common-wealth, seems tobe grounded ratfrer npon corruption, than weakness, as, by surveying its original, may appear. The rise and potency of lawyers, in this kingdom, may be ascribed to a two-fold ground.
1. The unknownness of the law, being in a strange tongue; whereas, when the law was in a known language, as before the Conquest, a man might be his own advocate. But the hiddenness of the law, together