the history of the common law of england-第10部分
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and Publishing what the Law of this Kingdom is； especially when such Decisions hold a Consonancy and Congruity with Resolutions and Decisions of former Times； and tho' such Decisions are less than a Law； yet they are a greater Evidence thereof than the Opinion of any private Persons； as such； whatsoever。 1st。 Because the Persons who pronounce those Decisions； are Men chosen by the King for that Employment； as being of greater Learning； Knowledge； and Experience in the Laws than others。 2dly。 Because they are upon their Oaths to judge according to the Laws of the Kingdom。 3dly。 Because they have the best Helps to inform their Judgments。 4thly。 Because they do Sedere Pro Tribunali； and their Judgments are strengthen'd and upheld by the Laws of this Kingdom； till they are by the same Law revers'd or avoided。 Now Judicial Decisions； as far as they refer to the Laws of this Kingdom； are for the Matter of them of Three Kinds： First； They are either such as have their reasons singly in the Laws and Customs of this Kingdom； as； Who shall succeed as Heir to the Ancestor； what is the Ceremony requisite for passing a Freehold； what Estate； and how much shall the Wife have for her Dower？ And many such Matters wherein the ancient and express Laws of the Kingdom give an express Decision； and the Judge seems only the instrument to pronounce it； and in these Things； the Law or custom of the Realm is the only Rule and Measure to judge by； and in reference to those Matters； the Decisions of Courts are the Conservatories and Evidences of those Laws。 Secondly； Or they are such Decisions； as by Way of Deduction and Illation upon those Laws are framed or deduced； as for the Purpose； Whether of an Estate thus or thus limited； the Wife shall be endowed？ Whether if thus or thus limited； the Heir may be barr'd？ And infinite more of the like complicated Questions。 And herein the Rule of Decision is； First； the Common Law and Custom of the Realm； which is the great Substratum that is to be maintain'd； and then Authorities or Decisions of former Times in the same or the like Cases； and then the Reason of the Thing itself。 Thirdly； Or they are such as seem to have no other Guide but the common Reason of the Thing； unless the same Point has been formally decided； as in the Exposition of the Intention of Clauses in Deeds； Wills； Covenants； &c。 where the very Sense of the Words； and their Positions and Relations； give a rational Account of the Meaning of the Parties； and in such Cases the Judge does much better herein； than what a bare grave Grammarian or Logician； or other prudent Men could do； for in many Cases there have been former Resolutions； either in Point or agreeing in Reason or Analogy with the Case in Question； or perhaps also； the Clause to be expounded is mingled with some Terms or Clauses that require the Knowledge of the Law to help out with the Construction or Exposition： Both which do often happen in the same Case； and therefore it requires the Knowledge of the Law to render and expound such Clauses and Sentences； and doubtless a good Common Lawyer is the best Expositor of such Clauses； &c。 Vide Plowden； 122； to 130； 140； &c。 V。 How the Common Law of England stood at and for some Time after the coming in of King William I It 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。 1st。 Because both Parties have apealed to the highest Tribunal that can be； viz。 The Trial by War； wherein the great Judge and Sovereign of the World； The Lord of Hosts； seems in a more especial Manner than in other Cases to decide the Controversy。 2dly。 Because unless this should be a final Decision； Mankind would be destroy'd by endless Broils； Wars and Contentions； therefore； for the Preservation of Mankind； this great Decision ought to be final； and the conquer'd ought to acquiesce in it。 3dly。 Because if this should not be admitted； and be by； as it were； the tacit Consent of Mankind accounted a lawful Acquisition； there would not be any Security or Peace under any Government： For by the various Revolutions of Dominion acquired by this Means； have been； and are to this Day the Successions of Kingdoms and States preserved。 What was once the Romans； was before that the Graecians； and before them the Persians； and before the Persians； the Assyrians； and if this just Victory were not allowed to be a firm Acquest of Dominion； the present Possessors would be still obnoxious to the Claim of the former Proprietors； and so they would be in a restless State of Doubts； Difficulties and Changes upon the Pretention of former Claims： Therefore； to cut off this Instability and Unsettledness in Dominion and Property； it would seem that the common Consent of all Nations has tacitly submitted； that Acquisition by Right of Conquest； in a Solemn War between Persons not Subjects of each other by Bonds of Allegiance or Fidelity； should be allowed as one of the lawful Titles of acquiring Dominion over the Persons； Places and Things so conquer'd。 But whatever be the real Truth or Justice of this Position； yet we are much at a Loss touching the Things in Hypothesi； viz。 Whether this be the Effect of every Kind of Conquest？ Whether the War be Just or Unjust？ What are the Requisites to the Constituting of a just War？ Who are the Persons that may acquire？ And what are the Solemnities requisite for that Acquest？ But above all； the greatest Difficulty is； when there shall be said； Such a Victory as acquires this Right？ Indeed； if there be a total Deletion of every Person of the Opposing Party or Country； then the Victory is compleat； because none remains to call it in Question。 But suppose they are beaten in one Battle； ma
