the history of the common law of england-第12部分
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ance of such Claim； raises War； and by his Forces obtains what he so pretends a Title to。 Now this Kind of Conquest does only instate the Victor in those Rights of Government； which the conquered Prince； or that Prince to whom the Conqueror pretends a Right of Succession； had； whereby he becomes only a Successor Jure Belli； but not a Victor or Conqueror upon the People； and therefore has no more Right of altering their Laws； or taking away their Liberties or Possessions； than the conquered Prince； or the Prince to whom he pretends a Right of Succession； had； for the Intention； Scope and Effect of his Victory extends no further than the Succession； and does not at all affect the Rights of the People。 The Conqueror is； as it were； the Plaintiff； and the conquered Prince is the Defendant； and the Claim is a Claim of Title to the Crown； and because each of them pretends a Right to the Sovereignty； and there is no other competent Trial of the Title between them； they put themselves upon the great Trial by Battle； wherein there is nothing in Question touching the Rights of the People； but only touching the Right of the Crown； and that being decided by the Victory； the Victor comes in as a Successor； and not Jure Victoriae； as in relation to the Peoples Rights； the most Sacred whereof are their Laws and Religion。 Indeed； those that do voluntarily assist the conquered Prince； commonly undergo the same Hazard with him； and do； as it were； put their Interest upon the Hazard and Issue of the same Trial； and therefore commonly fall under the same Severity with the conquered； at least de facto； because； perchance the Victor thinks he cannot be secure without it： But yet Usage； and indeed common Prudence； makes the Conquerors use great Moderation and Discrimination in relation to the Assistants of the conquered Prince； and to extend this Severity only to the eminent and busy Assistants of the Conquered； and not to the Gregarii； or such as either by Constraint or by Necessity were enforced to serve against him； and as to those also； on whom they exercise their Power； it has been rarely done Jure Belli aut Victoriae； but by a judiciary Proceeding； as in Cases of Treason； because now the great Title by Battle has pronounced for the Right of the Conqueror； and at best no Man must dare to say otherwise now； whatsoever Debility was in his Pretension or Claim。 We shall see the Instances hereof in what follows。 Thirdly； As to the Third Point； How the Laws of England stood at the entry of King William I and it seems plain； that at the Time of his Entry into England； the Laws； commonly call'd； The Laws of Edward the Confessor； were then the standing Laws of the Kingdom。 Hoveden tells us； in a Digression under his History of King Henry 2 that those Laws were originally put together by King Edgar； who was the Confessor's Grandfather； viz。 Verum tamen post mortem ipsius Regis Edgari usq； ad Coronationem Sancti Regis Edvardi quod…Tempus Continet Sexaginta & Septem Annos prece （vel pretio） Leges sopitae sunt & Jus praetermissae sed postquam Rex Edvardus in Regno fuit sublimatus Concilio Baronum Angliae Legem Annos Sexaginta & Septem Sopitam； excitavit & confirmavit； & ea lex sic confirmata vocata est Lex Sancti Edvardi； non quod ipse prius invenisset eam sed cum praetermissa fuisset & oblivioni penitus dedita a morte avi sui Regis Edgari qui primus inventor ejus fuisse dicitur usque ad sua Tempora； viz。 Sexaginta & Septem Annos。 And the same Passage in totidem Verbis is in the History of Litchfield； cited in Sir Robert Twisden's Prologue to the Laws of King William I。 But although possibly those Laws were collected by King Edgar； yet it is evident； by what is before said； they were augmented by the Confessor； by that Extract of Laws beforementioned； which he made out of that Threefold Law； that obtain'd in several Parts of England； viz。 The Danish； the Mercian； and the West…Saxon Laws。 This Manual （as I may call it） of Laws； stiled； The Confessor's Laws； was but a finall Volume； and contains but few Heads； being rather a Scheme or Directory touching some Method to be observed in the Distribution of Justice； and some particular Proceedings relative thereunto； especially in Matters of Crime； as appears by the Laws themselves； which are now printed in Mr Lambart's Saxon Laws； p。 133。 and other Places； yet the English were very jealous for them； no less or otherwise than they are at this Time for the Great Charter； insomuch； that they were never satisfied till the said Laws were reinforced and mingled for the most Part with the Coronation Oath of King William I and some of his Successors。 And this may serve shortly touching this Third Point； whereby we see that the Laws that obtain'd at the Time of the Entry of King William I were the English Laws； and principally those of Edward the Confessor。 Fourthly； The Fourth Particular is； The Pretensions of King William I to the Crown of England； and what kind of Conquest he made； and this will be best rendered and understood by producing the History of that Business； as it is delivered over to us by the ancient Historians that lived in Or near that Time： The Sum； or Totum whereof； is this。 King Edward the Confessor having no Children； nor like to have any； had Three Persons related to him； whom he principally favoured； viz。 1st。 Edgar Aetheling； the Son of Edward； the Son of Edmond Ironside； Mat。 Paris； Anno 1066。 Edmundus aiutem latus serreum Rex naturalis de stirpe Regum genuit Edwardum & Edwardus genuit Edgarum cui dejure debebatur Regnum Anglorum。 2dly。 Harold； the Son of Goodwin； Earl of Kent； the Confessor's Father…in…Law； he having married Earl Goodwin's Daughter： And 3dly； William Duke of Normandy； who was allied to the Confessor thus； viz。 William was the Son of Robert； the Son of Richard Duke of Normandy； which Richard was Brother unto the Confessor's Mother。 Vide Hoveden； sub initio Anni primi Willielmi primi。 There was likewise a great Familiarity； as well as this Alliance； between the Confessor and Duke William； for the Confessor had often made considerable Residencies in Normandy。 And this gave a fair Expectation to Duke William of succeeding him in this Kingdom： And there was also； at least pretended； a Promise made him by the Confessor； That Duke William should succeed him in the Crown of England； and because Harold was in great Favour with the King； and of great Power in England； and therefore the likeliest Man by his Assistance to advance； or by his Opposition to hinder or temperate the Duke's Expectation； there was a Contract made between the Duke and Harold in Normandy in the Confessor's Lifetime； That Harold should； after the Confessor's Death； assist the Duke in obtaining the Crown of England。 （Vide Brompton； Hoveden； &c。） Shortly after which the Confessor died； and then stepp'd up the Three Competitors to the Crown； viz。 1。 Edgar Aetheling； who was indeed favoured by the Nobility； but being an Infant； was overborn by the Power of Harold； who thereupon began to set up for himself： Whereupon Edgar； with his Two Sisters； fled into Scotland； where he； and one of his Sisters； dying without Issue； Margaret； his other Sister and Heir； married Malcolm； King of Scots； from whence proceeded the Race of the Scottish Kings。 2。 Harold； who having at first raised a Power under Pretence of supporting and preserving Duke William's Title to this Kingdom； and having by Force suppress'd Edgar； he thereupon claimed the Crown to himself； and pretending an Adoption or Bequest of the Kingdom upon him by the Confessor； he forgot his Promise made to Duke William； and usurped the Crown； which he held but the Space of 9 Months and 4 Days。 Hoveden。 3。 William； Duke of Normandy； who pretended a Promise of Succession by the Confessor； and a Capitulation or Stipulation by Harold for his Assistance； and had； it seems； so far interested the Pope in Favour of his Pretensions； that he pronounced for William against both the others。 Hereupon the Duke makes his Claim to the Crown of England； gathered a powerful Army； and came over； and upon the 14th of October； Anno 1067； gave Harold Battle； and overthrew him at that Place in Sussex； where William afterwards founded Battle…Abby； in Memory of that Victory； and then he took upon him the Government of the Kingdom； as King thereof； and upon Christmas following was solemnly crown'd at Westminster by the Archbishop of York； and he declared at his Coronation； That he claimed the Crown not Jure Belli； but Jure Successionis； and Brompton gives us this Account thereof； Cum nomen Tyranni exhorresceret & nomen legitimi principis induere vellet petiit consecrari； and accordingly； says the same Author； the Archbishop of York； in respect of some present incapacity in the Archbishop of Canterbury； Munus hoc adimplevit ipsumque Gulielmum Regem ad jura Ecclesiae Anglicanae tuenda & conservanda populumque suum recte regendum； & Leges rectas Statuendumi； Sacramento Solemniter adstrinxit； and thereupon he took the Homage of the Nobility。 This being the true； though short Account of the State of that Business； there necessarily follows from thence those plain and unquestionable Consequences； First； That the Conquest of King William I was not a Conquest upon the Country or People； but only upon the King of it； in the Person of Harold； the Usurper； for William I came in upon a Pretence of Title of Succession to the Confessor； and the Prosecution and Success of the Battle he gave to Harold was to make good his Claim of Succession； and to remove Harold； as an unlawful Usurper upon his Right； which Right was now decided in his Favour； and determined by that great Trial by Battle。 Secondly； That he acquired in Consequence thereof no greater Right than what was in the Confessor； to whom he pretended a Right of Succession； and therefore could no more alter the Laws of the Kingdom upon the Pretence of Conquest； than the Confessor himself might； or than the Duke himself could have done； had he been the true and rightful Successor to the Crown； in Point of Descent from the Confessor； neith
