homicides of escapes of Tearmes kept at London of Recoueries of Exchanges Historia Eliensis of Feoffements of jntales of CoÌ„mons inclosures and the Law of Curia Claudenda of the lawe of disceit it in selling thinges corrupt or vitious of dowers Leases Rents Farmes seruices c. And many other as things theÌ„ in vse which were allowed as agreeable to Gods word by those Saxon ChristiaÌ„s being vtter enemies to the Britaines and yet most deuout in Religion and sincere in Iustice as their Lawes doe testifie For which cause I will touch certaine of the notable Saxon lawes onely to shew the Godlinesse of those auncient Saxons and Scottish Kings and how in that time the matters of our common Lawes were vsuall and common Inas about the yeare of our Lord 720. beginneth his lawes thus Inas by the grace of God west Saxon King by the perswasion and instruction of Cenred my Father and of Hedda and Erkenwald my Bishops and with al my Aldermen the eldest wisemen of my people in a great summons of Gods Seruants for the health of our soule conseruation of our kingdome I haue enacted that right Lawes and IudgemeÌ„ts be confirmed throughout our kingdome Cap. 1. That the ministers of God obserue the appointed rules and maners of liuing Then followeth Lawes for obseruation of the Sabaoth against theft robbery murder many other offences and therein is mencion also made of Land-lords of Tennants of Rents and seruices Kennethus the most worthy Scottish King soone after the same time maketh verye iust and good Lawes wherof this was one In euery Shire this was before Alfred Let skilfull men in the Lawes bee appointed to reside hee that blasphemeth the name of God of the Saints of his Prince or of the Captaine of his tribe let his tongue bee cut out The most religious K. Alfred about the yeare 880. beginneth his lawes thus The Lord spake vnto Moses these words saying I am the Lord thy God which brought thee out of the land of Egipt out of the house of Bondage thou shalt haue none other Gods besides mee And so foorth as in the decalog and other Iudicialles of Moses Then follow certaine lawes against periury concerning Intayles against Sacriledge Treason Quarrelling Fighting Fornication yea against immodest touching of a womaÌ„ with other lawes of greate sinceritie a manifest and approued Vicar and Lieuftenant of God a second Dauid whose delight is in the Lawe of the Lord which to confirme the same King translated the new Testament out of Latin into the Vulgar SaxoÌ„ for the vse of his subiects some Copies whereof as it is said are yet remaining amongst vs. So farre did the learning of those daies differ from the ignorance of these Romane innouators Edward Anno Dom. 920. Thus beginneth I Edward K. commaund all Gâ—eeues that they giue right iudgements to all according to their iudgement Booke Alfred and Guthrun thus made their league by act of Parlament Ante omnia Deum vnum c. before al things that one God is to be loued Worshipped Secondly that humane Lawes are to be proclaimed as common to Christ and the King Then followe Lawes for payment of Tithes for obseruation of the Sabaothes c. Ioh. Picus cited by Mr Lamb. Arc. And by this league Guthrunus which some call Gurmundus was in Baptisme named Ethelstane obteyned Suffolke Norfolke Northumberland to be giuen to him to holde by Fealty of the King Edmund sets this preface to his Lawes I Edmund King to al my Subiects doe plainely signifie that in a solemne assembly both of the Clergie and Laity I haue studiously inquired of the wisest of my kingdome by what meanes the ChristiaÌ„ faith might be most aduanced And to vs all it seemed most comodious that loue and mutual kindnes should be maintayned amongst all men throughout our Kingdome Etenim taeâ—…et nos harum quotidianarum pugnarum For we are tired with these quotidian fightings and contentions O godly Prince O true Vicar of the God of Peace Edgar enacteth Lawes for the obseruation of the Sunday and of publike feasts and fasts vnder the paines contained in the iudiciall booke And that euery man shall freely enioy the benefit of the common Law Note the common lawe euen then named before St. Edward the Conqueror Canutus the Dane thus First let all men most deuoutly religiously worship one God Al men obserue one rule of Christian Religion Al men obey Canutus the King with due fidelity and obseruance All defend and keepe the church of Christ with holy euerlasting peace continually frequeÌ„t the same c with many other most Godly and Christian lawes after many Footesteps of auncient Lawes which yet remaine in vse he concludeth with a moste ardent exhortation to all men to turne vnto God and to obey his commaundements another Lieftenant or vicegerent of Christ Edgar the peaceable confirmeth the Liberties rights of the Church amongst other things enacteth that euerie man shall enioy the benefit of the common Lawe Like matters are found in the Lawes of Ethelstane Etheldred St. Edward and VVilliam the Conqueror who confirmeth the same with some small addition and hath left them to vs consecrated by his owne othe and the othe of all his successors You see then the sacred Maiestie of our Imperaill Princes whoÌ„ God hath vouchsafed not onely by the coÌ„fesson of strangers enemies but by these their Lawes to be his Vicars defenders of his faith And by these things that haue been said it may fully appeare first how sincerely and deuoutlye those excellent Princes followed the counsell of Elutherius giuen to Lucius in taking lawes for their kingdome out of the word of God and how true it is that we affirme that our auncient common lawes were begun in the times of the first Britains grounded vpon the lawes of God printed in Nature and Scripture continued by the Saxons in their iudgement bookes transmitted to vs by Saint Edward and the Conqueror And consequently the ground of Sir Iohn Fortescues testimony that this land hath bene possessed by Britannes Romanes Saxons Danes and Normans And in all the times of these seuerall Nations and of their Kings this Realme was still ruled with the selfe same lawes and customes which if they had not bene right good some of those Kings mooued eyther with Iustice or with reason or affection wold haue chaÌ„ged or abolished them speciallye the Romaneâ— who did iudge all the world by their owne Lawes Thirdly what direction and Presidents our Princes and Parlaments haue had to follow in making Lawes and what Lawes the whole Kingdome is bound to obserue by that solemn othe that is taken for the obseruation of St. Edwards lawes and the Lawes of the Realme as partly also is noted vnto vs in the preface of that famous Statute made against Prouisors in the 25. yeare of King Edward the third And lastly what reason may be giueÌ„
Epistle doth require that before I enter into the discourse of our auncient Britaine lawes I speake somewhat concerning the Romane Lawes that it may appeare that neither the reuerend Elutherius was deceiued in judgement nor the Godly Lucius in his choise nor the learned Fortescue in his testimony but that our said auncient Lawes were indeed as well as by the Romanes owne confession in that they did not change them better then their owne I speake as a Christian for asmuch as Brittain receaued the Lawes of Christ before it knew the gouernmēt of Rome but because I wold be loath to offend I will remit the reader that is desirous to know what may be said of the Authors composers of the first Romane Lawes Aug. de Ciuit Dei L. 3 Wesembech prefat in Isag Riuall in hist Iur. de Iustiniano to St. Augustin and of these now extant to VVesembechius Rivallius Procopius and others And for the principles and groundes I will referre them to consider the particulars of the twelue tables yet in parte remayning and to measure and examine the rules of the Institutes by the wordes of the Authors out of which they seeme to bee taken Aristotle Tully Isidorus c. and both by the Scriptures a woorke worthy the vacation of a learned man But for the Lawes of Brittaine my principall intention before I come to speak of them I will intreate a little leaue to speake somewhat first of lawe in generall and secondly of the auncient inhabitantes of this I le For by knowing what they were wee shall the better knowe their Lawes and manners Cap. 3. THe Lawe by Aristotle is called a couenant of the societie of men Polit. 1. De Leg. By Tully the reason and minde of God discerning just and vniust If we joyne these two and call it the couenant made by God with the societie of men according to his owne reason Ex. 34.27 20. v. 5.6 Deut. 5.2 discerning just vniust it agreeth with the words of Moses and will be as I take it a perfect definition The end as Tully saith is manifest Ad salutem ciuium De Leg. 2. ciuitatumque incolūnitatem vitamque omnium quietam et beatam Agreeing also with Moses if Salus et Incolumitas et Beatitudo bee taken for all the blessing of this life and the life to come Lawes are called Diuine or Humane The deuine Lawes are those which God immediately made first written in nature secondlye described in the ten commaundements the Scriptures Humane Lawes are Lawes deriued out of the diuine Lawes by applycation of the generall commaundements First to the principal parties viz. to God to the common estate and to priuate men according to the diuision of the twelue Tables Auson secondlye to particular circumstances of Persons thinges actions times places Penalties and such like as the Institutes are deuided Heerehence followeth a conclusion obserued also by Tully that if a Law be made contayning any thing contrary to the Lawe of God it is not to be called a Lawe though all the world in a ioynt Parlamēt confirme it For neither is it deriued out of the general precepts nor partaketh of the common definition seeing it is not a couenant of God but a confederacy against God The property and effect of the Lawe is first to make a distinction of just from vniust Secondlye to commaund and forbid Thirdlye to punnish and rewarde These thinges are performed originallye and gennerally by the Lawe of God and secondarily and particularly by the Lawe of men The quallities of a true Lawe are reckoned vp by Isidorus and others Esse debet Lex Honesta Iusta possibilis Decret Part. 1 Wesemb secundum naturam et consuetudinem Loco et tempori conueniens necessaria vel vtilis manifesta c. A Lawe must bee honest just possible agreeable to nature and custome to time and place necessarie or profitable and manifest of this proceedeth another ground also jus nemini violare vel ignorare Licet Item lex obligat ad scientiam ad obedientiam ad paenam The Lawe bindeth to knowledge obedience punishment no man may breake it no man may be ignorant of it and that which Isidore saith when Lawes are made no Man may judge of them but according to them The exact performance of the Lawe is called Iustice 5 Ethic. the moderation of the Lawe vppon consideration of circumstances is called equitie the contraries to the law are jniurie jniustice jniquity wrong force fraud such like Whatsoeuer is said of the Law of God absolutely may proportionally be applyed to the Lawe of men The end of the Lawe of God is al happines That happines which is the end of Humane Lawes consisteth chieflie in the conseruation of Religion Psal 72.85 Peace and Iustice all which thinges are comprehended by St. Augustin vnder the name of peace which also he maketh the finall end of the Citie of God De Ciuitate Dei li. 19 The matters which the Lawes doe handle are chiefly persons things places times contracts offences and actions In this Iland persons appointed specially for the procuration of Religion are the Archbishops Bishops Ministers for the preseruation of Peace are the Nobilitie Sheriffes and Iustices of peace For the administration of Iustice the Iudges professors and Officers of Lawe And the King hath from God supreame authoritie ouer all according to the sentence Rex est Vicarius Dei Other distinctions there be of Persons but it is not my intention to speake of euery difference but onely so much as may serue to giue light to the Discourse intended Things also haue many diuisions whereof I meane to touch but one which is that some may passe by course of inheritance as Landes and tenements some cannot as Chattelles Of places some haue sacred priuiledge as Temples representing God by his woord The Kinges presence and Iudiciall Courtes representing God in power and Iustice others are ordinarie and common and of them some are publique as Markettes Wayes Some priuate as Houses Shoppes c. Times are likewise diuided into sacred and common the Day the night and such like diuisions Contracts haue manifold Distinctions which see in Bracton Bracto L. 3 Crimes are either against Religion Peace or Iustice and againe are considered as publike offences so Rex pro pace sequi debet Bracton in which all the Pleas of the Crowne are contayned or as some particular person is interessed who is to sue accordingly Againe they may be pursued ciuilly or criminally Lastly actions are distinguished for the moste parte according to the things which they demaund or the persons plaintifes or defendants or the Courts wherin or the times whē c. In actions are these principall partes Sūmons or Citations triall Iudgement and execution These points as fitter to be sought in other places as to learned men and as my selfe not halfe learned I doe briefely passe
made vpon this priuiledge haue these words Contra Legem et consuetudinem Regn◠which for the most part is intended to be the moste auncient common Law yet if this interpretation be not accepted then take another collected vpon the auncient Lawes of the Saxons and the Norman They saie that the Church hath a priuiledge which they call Pacem and is vnderstood the Sanctuarie The foure waies haue a peace which is that all Nusances in them shall bee amended note the antiquitie of our Lawes of Nusanz But for markets and plowes no other priuiledge can be heard of but onely this wherof I haue spoken to be free from distresse which is still continued And this Polidor seemeth to say expounding the law of Mulmutius to bee that the beastes of the plow ought not to be led away for debt so long as the debtor had other goods Now if the Priuiledge from distresse was so auncient it must needes follow that distresses were much more aunciently in vse as I noted also before And from the vse of distresses by secundary conclusions and deductions of reason followed many Lawes amongst vs yet in cōmon practise as of Attornments Repleuies Auouries Tenures Seruices Quid Iuris clamat quem redditū reddit Per quae seruicia such like which by necessitie must be vnderstood where distresses are frequent and so much of the Mulmutian Lawe Now followeth of King Lucius Cap. 10. BY many steppes and degrees I am come to the Lucid starre of Britaine well deseruing that name for that in his time religiō Iustice gouernmēt begā to shine more brightly in this kingdō And in the history of him his succsseors the Readers may obserue three things First that this Nation aboue all Nations of the earth except the Hebrewes hath had most vertuous religious Godly Princes Secōdly that as our auncient lawes were moste righteous being deriued from the lawes of God written in nature So Lucius and his successors established onely such good and iust Lawes as were agreeable to Christianitie and deriued out of the Scriptures Thirdly that all calamities of this Land hath proceeded of publike notorious crimes against God and his seruants our good Princes and against religion and religious lawes Concerning Lucius himselfe I cited before the testimony of King Alfred a witnesse farre aboue all exception who saith directly and expresly in his Lawes that vpon the propagation of the Gospel when many men receiued the faith of Christ as well in England as in other regions certaine Synods aswel of Bishoppes as of other most noble wise men were gathered which appointed punishments for offendors And a little after these Sanctions or Lawes I Alfred King haue collected cōmitted to writing where he speaketh of certaine Sinodes of Bishops Noble wise men it must needes be meāt of Parlaments as we shewed before For wee reade of no generall counsell in Britaine and of Prouinciall Sinodes it cannot be intended where hee saith that they were gathered vpon the propagation of the Gospell he signifieth the time of King Lucius Beda L. 1. when the Gospell was first publikely receaued in this Land For it cannot bee vnderstood of the Christian Saxons for of them he speaketh by name afterwards saying that he vsed choice and iudgement in refusing some of their lawes and taking others whereof I inferre first that those words before were meant of the first Christian Britaines whom he nameth not because they were enemies to the Saxōs Secōdly that those British lawes were more sincere agreeable to Godlynes then the Saxon. Thirdly that those sanctions by him collected are some of the auncient common Lawes which yet remaine for that we finde no other collection of Lawes made by him But this all Histories testifie that he translated into Saxon the same which Gildas turned into Latin that the same were gathered into our common Law by St. Edward and called Saint Edwards lawes Besides it cannot be sayd that these good lawes were made by any other but onely by Lucius for neither was any other of the Britaine Princes so Godly religious as he neither had any of his successors such peaceable possessiō of the Land or conueniency to make lawes as he had For immediately after his death and continually till the Saxons time the whole state trauelled with forein and intestine enemies Lastly the testimony of Polidore confirmeth this Pol. Virg who giueth this moste honorable testimonie of King Lucius that he left his kingdome aswell Optimis institutis prouectum aduaunced or amended with the best institutions or Lawes as diuina religione auctum so that without question it is that he made some of our Lawes But particularly which of these lawes or institutions now extant were enacted by Lucius it is hard to say yet to speake my opinion I think first our Lawes of fines and amercements was established in his time For so saith Alfred that those first Christian Parlaments consisting of Bishops most noble wise men being taught by the mercifulnesse of Christ did appoint for euerie first offender a pecuniary paine where you see not onely the thing but almost the verie name of Misericordia which is vsed to this day in amercenents and is afterwards frequently vsed in the Saxon and Norman Lawes and this was for smaller offences But for the greatest the words of Alfred goe further saying of the same first Christiās Proditori tantummodo ac Dommim defertori hanc initiorem paenam haud infligendam existimarunt quippe qui eiusmodi viro minime parcendum censuerunt tum quod Deus contemptores sui omni miseratione indignos voluit tum quod Christus illorum qui ei mortem obtulerunt non est omnino misertus Where you see that by the testimonie of Alfred they tooke the president of their Law against Treason Lamb. Arc. from the examples of Christ and of God What was that Lawe It followeth afterwards In leg Alf. Cap. 4 Qui capiti et saluti Regis perfidiose infidiabitur vita et fortunis eius omnibus priuator that the Traytor should forfeit life Lands and goods Actes 1. So was Iudas punished and that punishment Elfredus felt being conuicted of treason in the daies of King Athelstane as appeareth by the said Kings Charter Fox in men recited by Mr. Fox here also appeareth not onely the Eschet which you see is expressely set downe in the words but also trialls for it would be iniurious vaine to set downe a punishment for offences and not set downe a course how the offender might be cleered or condemned and it is moste vnlikely that King Lucius and those first Christians wold imitate God and Christ in seueritie of punishment and not much more studie to imitate him in the Iustice sinceritie of their Trialles Therfore I think that the same Lucius ordeyned our Tryals by twelue that according to the example of Christ For that it is agreeable to the Scriptures