The History of the Common Law of England [24]
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