The Modern Statesman, Chapter 24
CHAP. XXIV.
Of Laws, and the Engliſh Laws.
IT followes now therefore, offenders being to be reſtrained, to ſhew what that is which muſt do it, and that is Law, which is the proper medicine for a Commonwealth in time of peace, in war there muſt be a ſharper and quicker courſe taken: and indeed this is ſo neceſſary, that as Livy ſaith, Multitudo coalescere in vuius populi corpus, nulla re, quam legibus, potest, There can be no communion, no ſociety without Laws; theſe preſerve property, and encourage induſtry, whereas ſhould men be left at uncertainties, they would like wild and ravenous Beaſts, wander, ceaſing upon their prey where they met with any weaker than themſelves: but this general aſſertion is taken for granted on all hands, we ſhall only therefore endeavor to give our thoughts in ſome paticulars, which ſeem to concern the Laws of England.
As firſt that our Generous and knowing Anceſtors plainly perceiving that there could be no Liberty where there was no Law, were very careful to bring all things to a certainty, ſo that the very Judges are obliged to take notice of it as well as the people, and are bound up to obſerve the Law as much as Plantiff or Defendant: and this, becauſe to ſet up Arbitrary Courts or Judges were to leave the people to their will, and in a miſt to grope after ſurmizes what ſuch or ſuch perſons would determine; and indeed until men were omniſcient, or could prophetically foretel the imaginations of the Rulers or Judges hearts, it were the higheſt piece of injuſtice to call men to account for a thing committed againſt no law, and a thing not to be named to condemn them. What could a man call his own, unleſs there were tenures warranted and confirmed by Law? and to bring a criminal proceſs for a thing no where declared a crime, would be a Tyranny our Monarchs in the worſt ages would have bluſht at.
But it may be ſaid, What need there ſo many? theſe engender but ſtrife and vexation; truly for ſtrife its the effect of peoples perverſeneſs, not the law: and ſhould thoſe actions of Battery, actions upon the caſe for words, and actions of treſpaſs be taken away, we ſhould quickly ſee the people make themſelves Judges, and by revenging themſelves fall together by the ears: our wiſe Anceſtors being aware of ſuch a miſchief thought it better to let them vent their petty animoſities in a ſute where ſome ſmall matter of money might be thrown away, and ſpend their ſpleen in opening each others purſe, than to fall into deadly fewds, wherein kinred on both fides would engage, and ſo print their revenges in murder and ruin, as we have heard practiſed in the Northern parts of this Iſland, and our forefathers ſaw, and provided againſt. For let us aſſure our ſelves, to provide no remedy by law againſt theſe injuries, which are the main beginnings of all quarrels, would not only make mem more ready to provoke, but others as apt to revenge themſelves being provoked, and of what conſequence this will be to the endangering the civil peace, good, and quiet of a Nation, I leave to the world to judge.
To conclude, as the Law of England gives rules, and teaches men their duties, ſo is it the moſt careful and provident for their tryals; it ſo abhors arbitrarineſs (as the enemy of liberty, and father of injuſtice) that it will not truſt the matter of Fact, and of Law in one hand, but ſets twelve men of the neighbourhood to give their verdict for fact; againſt whom it allowes an attaint, and being found guilty inflicts on them a dreadful puniſhment; ſo careful is it of the lives and liberties of particular perſons, and ſo provident that Juſtice ſhould be impartially adminiſtred; And now if any by his living in Turky is become enamoured of ſlavery, let him chooſe arbitrary Courts, for my part I deſire a rule to teach me what may be an offence, and Iudges who are bound by oath to obſerve that rule to give ſentence, and twelve of the neighbourhood to enquire of the fact, and againſt whom their lies an attaint, and upon eviction a dreadful puniſhment, before an arbitrary Court, though never ſo carefully picked, and ſo I am ſure do all underſtanding Engliſh men, who any whit prize and value their liberties.
Another objection there is againſt the Iudges, That they are for life; and that ſuch a continuance may make them remiſs and ſloathful, and that by a continual uſe they become leſs reverent of Juſtice, as a work which dayly uſe makes tedious and clogging: not omitting that it may create faction and combination, as Livy notes of the Carthaginians, qui unum ejus ordinis, idem adverſos omnes habebat; as laſtly that it may beget corruption by taking away fear of calling to account: and therefore the Romans Decurias Iudicum ſcribebant, ex honestiſſimis, & ex cenſu (ne paupertas ad culpam impelleret): ſed non eas omnes aſſidue judicare vole bant, duntaxat quotannis certum & neceſſarium numerum ſorte legebant, reliquis tunc feriatis. All this we allow in arbitrary Judges, who cannot be too ſhort a time limitted; but where there are lawes according to which they are to judge, there they ought to have experience and knowledge, which muſt of neceſſity encreaſe by practice and continuance. Thus the Romans whileſt they were poor and in continual war, there was no great cauſe of ſtrife, wealth being wanting, and the war employing them and keeping them buſie, ſo that they had little leiſure for private brawls: but when they began to enjoy peace and plenty, they had their Decemviri, which were of continuance, and ſtill provided by new Lawes to bridle new enormities. So that take away law and continuance will be as dangerous, as the loſs of liberty and right will be inevitable; for we muſt hold all at will, and have no rule to call Judges to account by, whoſe will muſt be our final determination, and as they think ſo muſt the Bell tink.