第18章 V. (1)

How the Common Law of England stood at and for some Time after the coming in of King William IIt is the Honour and Safety, and therefore the just Desire of Kingdoms that recognize no Superior but God, that their Laws have those two Qualifications, viz. 1st. That they be not dependent upon any Foreign Power; for a Dependency in Laws derogates from the Honour and Integrity of the Kingdom, and from the Power and Sovereignty of the Prince thereof. Secondly, That they taste not of Bondage or Servitude; for that derogates from the Dignity of the Kingdom, and from the Liberties of the People thereof.

In Relation to the former Consideration, the Kings of this Realm, and their great Councils, have always been jealous and careful, that they admitted not any Foreign Power, (especially such as pretended Authority to improve Laws upon other free Kingdoms or States) nor to countenance the Admission of such Laws here as were derived from such a Power.

Rome, as well Ancient as Modern, pretended a kind of universal Power and Interest; the former by their Victories, which were large, and extended even to Britain itself; and the later upon the Pretence of being Universal Bishop or Vicar-General in all Matters Ecclesiastical; so that upon Pretence of the former, the Civil Law, and upon Pretence of the later, the Canon Law was introduc'd, or pretended to some Kind of Right in the Territories of some absolute Princes, and among others here in England: But this kingdom has been always very jealous of giving too much Countenance to either of those Laws, and has always shewn a just Indignation and Resentment against any Encroachments of this Kind, either by the one Law or the other. It is true, as before is shewn, that in the Admiralty and Military Courts, the Civil Law has been admitted, and in the Ecclesiastical Courts, the Canon Law has been in some Particulars admitted. But still they carry such Marks and Evidences about them, whereby it may be known that they bind not, nor have the Authority of Laws from themselves, but from the authoritative Admission of this Kingdom.

And, as thus the Kingdom, for the Reasons before given, never admitted the Civil or the Canon Law to be the Rule of the Administration of Common Justice in this Kingdom; so neither has it endured any Laws to be imposed upon the People by any Right of Conquest, as being unsuitable to the Honour or Liberty of the English Kingdom, to recognize their Laws as given them at the Will and Pleasure of a Conqueror. And hence it was, that altho' the People unjustly assisted King Hen. 4 in his Usurpation of the Crown, yet he was not admitted thereunto, until he had declared, that he claimed not as a Conqueror, but as a Successor; only he reserved to himself the Liberty of extending a Pretence of Conquest against the Scroops that were slain in Battle against him; which yet he durst not rest upon without a Confirmation in Parliament. Vide Rot. Parl. 1 H. 4. No. 56. & Pars 2. Ibid. No 17.

And upon the like Reason it was, That King William I tho' he be called the Conqueror, and his attaining the Crown here, is often in History, and in some Records, called Conquestus Angliae;yet in Truth it was not such a Conquest as did, or could alter the Laws of this Kingdom, or impose Laws upon the People Per Modum Conquestus, or Jure Belli: And therefore, to wipe off that false Imputation upon our Laws, as if they were the Fruit or Effect of a Conquest, or carried in them the Badge of Servitude to the Will of the Conqueror, which Notion some ignorant and prejudiced Persons have entertain'd; I shall rip up, and lay open this whole Business from the Bottom, and to that End enquire into the following Particulars, viz.

1. Of the Thing called Conquest, what it is, when attained, and the Rights thereof.

2. Of the several Kinds of Conquest, and their Effects, as to the Alteration of Laws by the Victor.

3. How the English Laws stood at the Entry of King William the First.

4. By what Title he entred, and whether by such a Right of Conquest as did, or could, alter the English Laws.

5. Whether De Facto there was any Alteration of the said Laws, and by what Means after his coming in.

First, Touching the first of these, viz. Conquest, what it is, when attain'd, and the Rights thereof. It is true, That it seems to be admitted as a kind of Law among all Nations, That in Case of a Solemn War between Supream Princes, the Conqueror acquires a Right of Dominion, as well as a Property over the Things and Persons that are fully conquered; and the Reasons assign'd are Principally these, viz.