Chap. II. The Failers of our English Lawes, in their Originall, Rule, and End.

THe influence of force and power in the sanction of our English lawes, appears by this, That severall alterations have been made of our lawes, either in whole, or in part, upon every conquest. And if at any time the Conqueror hath continued any of the Ancient lawes, 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;Fortesc. cap. 17. That notwithstanding the severall conquests of this Realm, yet the same lawes have still continued, his words are these: Regnum Angliæ primò per Britones inhabitatum est, deinde per Romanos regulatum, iterumq́, per Britones, ac deinde per Saxones possessum, qui nomen eujus ex Britannia in Angliam mutaverunt; extunc per Danes idem regnum parumper dominatum est, & iterum per Saxones, sed finaliter per Normannes, quorum propago regnum illud obtinet in præsenti, & in omnibus Nationum harum & Regum earum temporibus, regnum illud iisdem quibus jam regitur consuetudinibus continuè regulatum est. That is, The Kingdom of England was first inhabited by the Britons, afterwards ’twas governed by the Romans; and again by the Britons, and after that by the Saxons; who changed its name from Brittain to England: In processe of time the Danes ruled here, and again the Saxons, and last of all the Normans, whose posterity, governeth the Kingdome at this day; And in all the times of these severall Nations, and of their Kings, this Realme was still ruled by the same customes, that it is now governed withall: 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) then that succeeding Conquerors did still retain those parts of former Lawes, which made for their own interest; otherwise ’tis altogether inconsistent with reason, that the Saxons who banished the Inhabitants, and changed the Name, should yet retain the Lawes of this Island. Conquerors seldom submit to the law of the conquered (where Conquests are compleat, as the Saxons was) but on the contrary, especially when they bare such a mortall feud to their persons: which argument (if it were alone) were sufficient to demonstrate, that the Britons and their Lawes were banished together; and to discover the weaknesse of the contrarie opinion, unlesse you take the Comment together with the Text, and make that explanation of it which we have done.

And yet this is no honor at all to the Lawes of England, that they are such pure servants to corrupt interests, that they can keep their places under contrary masters; just and equall lawes will rather indure perpetuall imprisonment, or undergo the severest death, then take up Arms on the other side (yea Princes cannot trust such lawes) An hoary head (in a law) is no Crown, unlesse it be found in the way of righteousnesse, Prov. 16. 31.

By this it appears that the notion of fundamental law, is no such Idoll as men make it: For, what (I pray you) is fundamentall law, but such customs as are of the eldest date, & longest continuance? Now Freedom being the proper rule of Custom, ’tis more fit that unjust customs should be reduced, that they may continue no longer, then that they should keep up their Arms, because they have continued so long. The more fundamentall a law is, the more difficult, not the lesse necessarie, to be reformed: but to return.

Upon every Conquest, our very lawes have been found transgressors, and without any judiciall processe, have undergone the penalty of Abrogation; not but that our Lawes needed to be reformed, but the onely reason in the Conqueror was his own will, without respect to the Peoples Rights; and in this case the riders are changed, but the burdens continued, for meer force is a most partiall thing, and ought never to passe in a Jury upon the Freedoms of the People; and yet thus it hath been in our English Nation, as by examining the originall of it may appear; and in bringing down its pedigree to this present time,The several alterations of the Lawes of England. 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 Edwards Lawes 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 1700. yeers last past; but whence the Britons drew their originall (who inhabited this Island before the Roman Conquest) is as uncertainly related by Historians, as what their Lawes and Constitutions were; and truly after so long a series of times, ’tis better to be silent, then to bear false witnesse.

But certain it is, that the Britains were under some kind of Government, both Martiall and Civill, when the Romans entred this Island, as having perhaps borrowed some Lawes from the Greeks, the refiners of humane spirits, and the ancientest inventers of Lawes: and this may seem more then conjecturall, if the opinion of some may take place, that the Phœnicians or Greeks first sailed into Britain, and mingled Customes and Languages together: For, it cannot be denyed, that the Etymon of many British words seems to be Greekish, as (if it were materiall to this purpose) might be clearly shown.

But ’tis sufficient for us to know, that whatever the lawes of the Britons were upon the Conquest of Cæsar, they were reviewed and altered,Brittish Laws altered by the Romans. and the Roman law substituted in it’s room, by Vespasian, Papinian and others, who were in person here; yet divers of the British Nobles were educated at Rome, on purpose to inure them to their lawes.

The Civill 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 lawes, that there are lesse footsteps of the Civill law in this, then in France, Spain, or any other province under the Roman Power.

So that whilst the Saxons ruled here, they were governed by their own lawes,Roman Law altered by the Saxons. which differed much from the British law, some of these Saxon laws were afterward digested into form, and are yet extant in their originall tongue, and translated into Latin.

Saxon law altered by the Danes.The next alteration of our English lawes was by the Danes, who repealed and nulled the Saxon law, and established their owne in its stead; hence it is, that the Laws of England do bear great affinity with the Customes of Denmarke, in Descents of Inheritance, Trialls of Right, and severall other wayes: ’tis propable that originally Inheritances were divided in this Kingdom amongst all the Sons by Gavel-kind, which Custome seemes to have been instituted by Cæsar both amongst us, and the Germans, (and as yet remaines in Kent, not wrested from them by the Conqueror) but the Danes being ambitious to conform us to the pattern of their owne Countrey, did doubtlesse alter this Custome, and allot the Inheritance to the eldest son; for that was the course in Denmarke, as Walsingham reports in his Vpodigma Neustriæ; Pater cunctos filios adultos à se pellebat, præter unum quem haeredem 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 Trialls of Rights by twelve men our Customes agree with the Danish, and in many other particulars which were introduced by the Danes, disused at their expulsion, and revived againe by William the Conqueror.

For after the Massacre of the Deans in this Island,Danish Law altered by K. Edward the Confessor. King Edward the Confessor did againe alter their Laws, and though he extracted many particulars out of the Danish Lawes, yet he grafted them upon a new stock, and compiled a Body of lawes since knowne by his name, under the protection of which the people then lived; so that here was another alteration of our English lawes.

And as the Danish law was altered by King Edward,Edw. the Confessors Laws altered by William the Conqueror. so were King Edwards lawes disused by the Conqueror, and some of the Danish Customes againe revived: And to clear this, we must consider, that the Danes and Normans were both of a stock, and situated in Denmarke, but called Normans from their Northern Situation, from whence they sailed into France, and setled their Customes in that part of it, which they called Normandy by their owne name, and from thence into Britain. And here comes in the great alteration of our English lawes 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 owne 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 lawes with the Norman Tongue, the appointment of Termes at Westminster, whereas before the people had Justice in their owne Countreyes, there being severall Courts in every County, and the Supreme Court in the County was called, Generale Placitum, for the determining of those Controversies which the Parish or the Hundred Court could not decide; the ordaining of Sheriffes and other Court-Officers in every County to keep people in subjection to the Crowne, and upon any attempt for redresse of injustice, life and land was forfeited to the King: Thus were the Possessions of the Inhabitants distributed amongst his Followers,Holinshed. yet still upon their good behaviour, for they must hold it of the Crowne, and in case of disobedience, the Propriety did revert: And in order hereto, certaine Rents yeerly were to be paid to the King. Thus as the Lords and Rulers held of the King, so did inferiour 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 lawes of the Conqueror were so burthensome to the people, that succeeding Kings were forced to abate of their price, and to give back some freedome to the people: Hence it came to passe, that Henry the first did mitigate the lawes of his Father the Conqueror, and restored those of King Edward; hence likewise came the Confirmation of Magna Charta, and Charta Forestæ, by which latter, the power of the King was abridged in inlarging of Forrests, whereas the Conqueror is said to have demolished a vast number of buildings to erect and inlarge New Forests by Salisbury, which must needs bee a grievance to the people. These freedomes were granted to the people not out of any love to them, but extorted from Princes by fury of War, or incessantnesse of addresse; and in this case Princes making a vertue of necessity, have given away that, which was none of their own, and they could not well keep, in hope to regaine it at other times; so that what of freedome we have by the law, is the price of much hazard and blood. Grant, that the People seem to have had a shadow of freedome in choosing of lawes, 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 withall how the spirit of Freedome 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 Royall Interest, will easily conclude, that there hath been a failer in our English Lawes, as to matter of Election or free choice, there having been alwaies a rod held over the Choosers, and a Negative Voice, with a Power of dissolution, having alwaies nipt Fredome in the Bud.

The Rule of our English Lawes 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 bias 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 caried on in an Orb above the sphere of the people; hence is that saying of Philip Honor, Cum à Gulielmo Conquestore, quod perinde est ac tyrannus, institutæ sint leges Angliæ, admirandum non est quod solam Principis utilitatem respiciant, subditorum verò bonum desertum esse videatur. (i.e.) Since the laws of England were instituted by William the Conqueror, or Tyrant, ’tis no wonder that they respect onely the Prerogative of the King, and neglect the Freedome of the People.

2. The interest of the People, which (like a worme) when trod upon did turne againe, and in smaller iotas and diminutive parcells, wound in it selfe into the Texture of law, yet so as that the Royall interest was above it, and did frequently suppresse it at its pleasure. The Freedom which we have by the law, owns its originall to this interest of the People, which as it was formerly little knowne 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 parcells, so that we have rather a tast then a draught of Freedome.

If then the rise and rule of our law be so much out of tune, no marvell 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 ensnared, not remedied thereby: the formality of our English law is that to an oppressed man, which School-Divinity is to a wounded spirit, when the Conscience of a sinner is peirced with remorse, ’tis not the niceitie of the Casuist, which is able to heale it, but the solid experience of the grounded Christian.

’Tis so with the law, when the poor & oppressed want right, they meet with law; which (as ’tis managed) is their greatest wrong; so that law it self becoms a sin, & an experimented grievance in this Nation. Who knows not that the web of the law intangles 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 enslave the people; so that the Inhabitants of this Nation are lost in the law, such and so many are the References, Orders, and Appeales, that it were better for us to sit down by the losse, then to seek for relief; for law is a chargeable Physitian, and he which hath a great Family to maintain, may well take large fees.

For the Officers or meniall 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 waies, must make themselves savers by the vailes of their office; yea ’twere 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 deer.

But the poor and the oppressed pay for all, hence it is, that such men grow rich upon the ruines of others, and whilest law and Lawyer is advanced, equity and truth are under hatches, and the people subject to a legall Tyranny, which of all bondages is one of the greatest.

Meer force is its own argument, and hath nothing to plead for it, but it self, but when oppression comes under the notion of law, ’tis most ensnaring; for sober-minded men will part with some right to keep the rest, and are willing to bear to the utmost; but perpetuall burdens will break their backs (as the strongest jade tyres at the last) especially when there is no hope of relief.

Chap. III. Of the necessity of the Reformation of the Laws of England, together with the excellency (and yet difficulty) of the worke.

THe more generall a good is, the more divine and God-like: Grant that Prerogative lawes are good for Princes, and advantagious to their Interest, yet the shrubs are more in number then the Cedars in the Forrest of the world; and Lawes of Freedome in behalfe of the people are more usefull, because directed to a more generall good. Communities are rather to be respected, then the Private Interests of great 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 Freedome. An equall and speedy distribution of Right ought to be the Abstract and Epitome of all lawes, and if so,

Why are there so many delayes, 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 destred 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 Presidents rather then the Rule, especially the Rule of Reason?

Why are mens lives forfeited by the law upon light and triviall grounds?

Why do some laws exceed the offence? and on the contrary other offences are of greater demerit then the penalty of the law?

Why is the Law still kept in an unknown tongue, and the nicety of it rather countenanced then corrected?

Why are not Courts rejourned into every County, that the People may have right at their own doors, and such tedious journyings may be prevented?

Why under pretence of equity, and a Court of Conscience, are our wrongs doubled and trebled upon us, the Court of Chancerie being as extortionous (or more) then any other Court? yea ’tis a considerable Quaere, whether the Court of Chancery were not first erected meerly to elude the Letter of the Law, which though defective, yet had some certainty; and under a pretence of Conscience to devolve all causes upon meer 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 Lawes: 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 cryes of the People, who search for Freedom as for an hid Treasure? yea, how can we be registred, even in the Catalogue of Heathens, who made lesse shew, but had more substance, and were excellent Justiciaries, as to the Peoples Rights: so Solon, Lycurgus &c. such morall appearances in the minds of men, are of sufficient Energie for the ordering of Common-wealths, and it were to be wished, that those States which are called Christian, were but as just as Heathens in their lawes, and such strict promoters of Common Right.

Pure Religion is to visit the Fatherlesse, and the most glorious Fast to abstain from strife, and smiting with the fist of wickednesse; in a word, to relieve the oppressed, will be a just Guerdon and reward for our pains and travell in the reformation of the law.

And yet this work is very hard, there being so many concerned therein, and most being buisier to advance and secure themselves, then to benefit the publike: yea our Phisitians being themselves Parties, and ingaged in those interests which freedom condemns, will hardly be brought to deny themselves, unlesse 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 hopefull fire of freedom, who have the image of it engrafted in their own minds.

Chap. IV. Of the corrupt Jnterest of Lawyers in the Common-wealth of England.

OF Interests, some are grounded upon weaknesse, and some upon corruption; the most lawfull interests are sown in weaknesse, and have their rise and growth there: Apostle, Prophet, Evangelist were onely for the perfecting of the Saints; Phisitians 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 weaknesse may be used, as long as our weaknesse doth continue, and no longer, for the whole need not a Phisician, &c. such interests are good, profitable, usefull; 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 to be grounded rather upon corruption, then weaknesse, as by surveying its originall, may appear. The rise and potency of Lawyers in this Kingdom, may be ascribed to a twofold ground.

1. The Unknownesse 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 hiddennesse of the law, together with the fallacies and doubts thereof, render us in a posture unable to extricate our selves, but we must have recourse to the shrine of the Lawyer, whose Oracle is in such request, because it pretends to resolve doubts.

2. The quarterly Terms at Westminster, whereas when justice was administred in every County, this interest could not possibly grow to an height, but every man could mind and attend his own cause without such journeying to and fro, and such chargeable Attendance, as at Westminster-Hall. For, first in the County, the law was plain, and controversies decided by Neighbours of the Hundred who could be soon informed in the state of the matter, and were very ready to administer Justice, as making it their own case; but, as for Common Lawyers, they carry only the Idea of right and wrong in their heads, and are so far from being touched with the sense of those wrongs, against which they seem to argue, that they go on meerly in a formalitie of words, I speak not this out of emulation or envy against any mans person, but singly in behalf of the people against the corruption of the interest it self.

After the Conquest, when Courts and Terms were established a Westminster (for how could the Darling of Prerogative thrive unlesse alwaies under the Kings eye?) men were not at leisure to take so much pains for their own, but sometimes they themselves, sometimes their friends in their behalf, came up in Term-time to London, to plead their causes, and to procure justice: as yet the interest of Lawyers was a puny thing, for one friend would undertake to plead his cause for another; and he which was more versed in the tricks of the law, then his neighbour, would undertake a journey to London, at the request of those who had businesse to do, perhaps his charges born on the way, and some small reward for his pains; Innes of Court why so called, and when erected. there were then no stately Mansions for Lawyers, but such Agents (whether Parents, Friends or Neighbour to the Parties) lodged like other Travellers in Innes as Country Attornies still do: hence it came to passe, that when the interests of Lawyers came to be advanced in Edward the third's Time, their Mansions or Colledges were still called Innes, but with an Addition of honor, Innes of Court.

The proceed of Lawyers interest is as followeth: when such Agents, as we have spoken of, who were employed by their neighbours at London, and by this means coming to be versed in the niceties of the law, found it sweeter then the Plough, and Controversies beginning to increase, they took up their Quarters here till such time as they were formed into an orderly body, and distinct interest, as now they are.*

There is ground enough to conclude, even from the Letter of the Statute Law (in 28. Edw. 1. c. 11.) that mens Parents, Friends or Neighboures did plead for them, without the help of any other Lawyer.

After the Lawyers were formed into a Society and had hired the Temple of the Knights Templers for the place of their abode, their interest was not presently advanced, but by the Contentions of the people, after a long series of time, so that the interest of Lawyers (in the height which now it is) comes from the same root, as pride and idlenesse, (i.e.) from fulnesse of bread, or prosperity the mother of strife; not but that just and equall administrators of laws are very necessary in a Common-wealth, but when once that which was at first but a Title, comes to be framed into an interest, then it sets up it self, and growes great upon the ruines of others, and thorough the corruption of the people.

I take this to be a main difference between lawfull and corrupt interests, just interests are the servants of all, and are of an humble spirit, as being content to have their light put out by the brightnesse of that glory which they are supplemental to. But corrupt interests feare a change, and use all wiles to establish themselves, that so their fall may be great, and their ruin as chargeable to the world as it can; for such interests care for none but themselves.

The readiest way to informe such men is to do it within us for most men have the common Barrator within them, (i.e.) principles of contention and wrong; and thus the law becomes the Engine of strife, the instrument of lust, the mother of debates, and Lawyers are as make-bates between a man and his neighbour.

When Sir Walter Rawleigh was upon his triall, the Lawyers that were of Councell for the King, were very violent against him, whereupon Sir Walter turning to the Jury, used these words, Gentlemen, I pray you consider, that these men, meaning the Lawyers, do usually defend very bad causes every day in the Courts, against men of their own profession, as able as themselves, what then will they not do against me?&c. which Speech of his may be too truly affirmed of many Lawyers, who are any thing or nothing for gaine, and measuring Causes by their owne Interest, care not how long right be deferred and suits prolonged: There was a Suit in Glocestershire between two Families,Cambden Brit. in Glocest. which lasted since the Reign of Edward the fourth, till of late composed, which certainly must be ascribed either to the ambiguity of the law, or the subtilty of the Lawyers, neither of which are any great honor to the English Nation.

How much better were it to spend the acutenesse of the mind in the reall and substantiall ways of good, and benefit to ourselves and others? and not to unbowell our selves into a meer Web, a frothy and contentious way of law, which the oppressed man stands in no more need of, then the tender-hearted Christian of Thomas Aquinas to resolve him in his doubts.

If there be such a thing as right in the world, let us have it sine suco.Why is it delayed, or denyed, or varnished over with guily words? Why comes it not forth in its owne Dresse? Why doth it not put off law, and put on reason; the mother of all just laws? Why is not ashamed of its long and mercenary train? Why can we not ask it and receive it our selves, but must have it handed to us by others? In a word, why may not a man plead his own Case? or his friends and acquaintance (as formerly) plead for him?

Memorable is that passage in King James Speech in Star-Chamber, In Countreys (sayes he) where the formality of law hath no place, as in Denmark, all their State is governed only by a written law, there is no Advocate or Procter admitted to plead, only the parties themselves plead their own cause, and then a man stands up and pleads the law, and there is an end; for the very Law-Book it self is their only Judge: happy were all Kingdoms, if they could be so: but here curious wits, various conceits, different actions, and variety of examples breed questions in law. Thus far he. And if this Kingdom doth resemble Denmark in so many other Custom, why may it not be assimilated to it in this also? especially considering, that the world travells with Freedom, and some real compensation is desired by the people, for all their sufferings, losses, (and) blood.

To clear the Channel of the law is an honorable worke for a Senate, who should be preservers of the Peoples Rights.