54
Fortescue J. De Laudibus Legum Angliae. Cambridge, 1949. P. 19–21 (chap. VII).
55
Ibid. P. 20–23 (chap. VIII).
56
Fortescue J. De Laudibus Legum Angliae. P. 36–37 (chap. XV).
57
«the laws of England, in those points which they sanction by reason of the law of nature, are neither better nor worse in their judgements than are all laws of other nations in like cases. For, as Aristotle said, in the fifth book of the Ethics, Natural law is that which has the same force among all wen. Wherefore there is no need to discuss it further. But from now on we must examine what are the customs, and also the statutes, of England, and we will first look at the characteristics of those customs» (Ibid. P. 38–39, chap. XVI; см. также всю главу).
58
В латинском тексте значится «tantorum temporum curriculis… in quantum… inveterate sunt» (Ibid. P. 38), но слово «usus» часто встречается в тексте Фортескью и в английском переводе передается как «usage» [в русском тексте – «употребление». – Прим. ред.].
59
«…and we will first look at the characteristics of those customs. [XVII] The kingdom of England was first inhabited by Britons, then ruled by Romans, again by Britons, then possessed by Saxons, who changed its name from Britain to England. Then for a short time the kingdom was conquered by Danes, and again by Saxons, but finally by Normans, whose posterity hold the realm at the present time. And throughout the period of these nations and their kings, the realm has been continuously ruled by the same customs as it is now, customs which, if they had not been the best, some of those kings would have changed for the sake of justice or by the impulse of caprice, and totally abolished them, especially the Romans, who judged almost the whole of the rest of the world by their laws. Similarly, others of these aforesaid kings, who possessed the kingdom of England only by the sword, could, by that power, have destroyed its laws. Indeed, neither the civil laws of the Romans, so deeply rooted by the usage of so many ages, nor the laws of the Venetians, which are renowned above others for their antiquity – though their island was uninhabited, and Rome unbuilt, at the time of the origins of the Britons – nor the laws of any Christian kingdom, are so rooted in antiquity. Hence there is no gainsaying nor legitimate doubt but that the customs of the English are not only good but the best. [XVIII] It only remains, then, to examine whether or not the statutes of the English are good…» (Fortescue J. De Laudibus. P. 38–41, chap. XVI).
60
О теоретическом обосновании традиции, основанной на предположении (презумпции), см.: Pocock J. A. G. Politics, Language and Time (chap. 6, 7).
61
«Thus you, prince, would marvel at a lawyer of England if he told you that a brother shall not succeed in a paternal heritage to a brother not born of the same mother, but that rather the heritage shall descend to a sister of the whole blood or shall fall to the lord-in-chief of the fee as his escheat, because you are ignorant of the reason for this law. But the difficulty of such a case does not in the least perturb one learned in the law of England. Wherefore… you will realise that if by instruction you will understand those laws of which you are now ignorant, you will love them, since they are the best; and the more you reflect upon them, the more agreeably you will enjoy them. For all that is loved transfers the lover into its own nature by usage, wherefore, said Aristotle, Use becomes another nature» (Fortescue J. De Laudibus. P. 14–17, chap. V).
62
«Then the king said, that he thought the law was founded upon reason, and that he and others had reason as well as the judges: to which it was answered by me, that true it was, that God had endowed his Majesty with excellent science, and great endowments of nature; but his Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects are not to be decided by natural reason, but by the artificial reason and judgment of law, which law is an art which requires long study and experience before that a man can attain to the knowledge of it» (Coke E. Prohibitions del Roy // Coke E. The Twelfth Part of the Reports. London, 1656; Rep. 65); «И тогда король сказал, что, по его мнению, право основывается на разуме и что он и другие люди обладают разумом не меньше, чем судьи. На это я ответил ему, что это так, что Господь наделил Его Величество превосходным умом и щедрыми дарами; однако Его Величество не изучал законы своего Английского королевства. Дела же, касающиеся жизни, или наследования, или товаров, или состояния, должны решаться не естественным, а искусственным разумом и судом закона, причем закон есть акт, требующий долгого изучения и опыта, прежде чем человек сможет похвастаться знанием его» (цит. по: Покок Дж. Бёрк и древняя конституция. Об одной проблеме в истории идей. С. 154).
63
«It only remains, then, to examine whether or not the statutes of the English are good. These, indeed, do not emanate from the will of the prince alone, as do the laws in kingdoms which are governed entirely regally, where so often statutes secure the advantage of their maker only, thereby redounding to the loss and undoing of the subjects. <…> But the statutes of England cannot so arise, since they are made not only by the prince’s will, but also by the assent of the whole realm, so they cannot be injurious to the people nor fail to secure their advantage. Furthermore, it must be supposed that they are necessarily replete with prudence and wisdom, since they are promulgated by the prudence not of one counsellor or a hundred only, but of more than three hundred chosen men – of such a number as once the Senate of the Romans was ruled by – as those who know the form of the summons, the order and the procedure of parliament can more clearly describe. And if statutes ordained with such solemnity and care happen not to give full effect to the intention of the makers, they can speedily be revised, and yet not without the assent of the commons and nobles of the realm, in the manner in which they first originated. Thus, prince, all the kinds of the law of England are now plain to you. You will be able to estimate their merits by your own wisdom, and by comparison with other laws; and when you find none in the world so excellent, you will be bound to confess that they are not only