But still this was but an Indulgence, and therefore was resumable by the Victor, unless there intervened any Capitulation between the Conqueror and the Conquered to the contrary. which was frequent, especially in those Cases, when it was not a compleat Conquest, but rather a Dedition upon Terms and Capituiations, agreed between the Conqueror and the Conquered;wherein usually the yielding Party secured to themselves, by the Articles of their Dedition, the Enjoyment of their Laws and Religion; and then by the Laws of Nature and of Nations, both which oblige in the Observation of Faith and Promises, those Terms and Capitulations, were to be observed. Again, 2dly. When after a full Conquest, the conquered People resumed so much Courage and Power as began to put them into a Capacity of regaining their former Laws and Liberties. This commonly was the Occasion of Terms and Capitulations between the Conquerors and Conquered. Again, 3dly. When by long Succession of Time, the Conquered had either been incorporated with the conquering People, whereby they had worn out the very Marks and Discriminations between the Conquerors and Conquered; and if they continued distinct, yet by a long Prescription, Usage and Custom, the Laws and Rights of the conquered People were in a Manner settled, and the long Permission of the Conquerors amounted to a tacite Concession or Capitulation, for the Enjoyment of their Laws and Liberties.
But of this more than enough is said, because it will appear in what follows, That William I never made any such Conquest of England.
Secondly, Therefore I come to the Second Kind of Conquest, viz. That which is only Victoria in Regem: And this is where the Conqueror either has a real Right to the Crown or chief Government of a Kingdom, or at least has, or makes some Pretence of Claim thereunto; and, in Pursuance 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.
