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
OF THE ANTIENT LAWES OF great Britaine Seruato Ius metue Mortalis Deum George Saltern LONDON Printed for Iohn Iaggard and are to bee solde at his Shop in Fleetestreete at the Signe of the hand and Starre 1605. De Antiquis Britanniae Legibus Cap. 1. IN all actions in euerie election in euery counsell and deliberation it is to bee held for a certaine and vndoubted principle that Onely thinges Godly just necessarie are to be done that with due inuocation of Diuine assistance without the which nothing can be done So the first consideration ought to bee of the end the second of the meanes the third of the effectuall working power which cannot be hindred which is onely the spirit of God all sufficient Gen. 17.1 By this wee may see how that ground is to be vnderstood which some haue taken namely that in al innouations there ought to be vrgent necessitie or euident vtilitie A ground which if it had bin vsed onely as it was first proposed by a Pagan Vlpianus I would say that it were altogether vnperfect defectiue seeing the consideration of Godlines justice is quite omitted but seeing the same is now taken and pressed by Christians I will desire them to admit a Christian exposition to say that Religion Piety Iustice doe carry the waight of necessity and vtility and whatsoeuer is Godly and just the same is necessarie proffitable according to the saying of the Apostle 1. Tim. 4. Godlynesse is proffitable to all things hath the promises of this life and of the life to come And againe whatsoeuer is not Godly just the same is not to be done whatsoeuer necessitie or vtilitie may seeme to bee in it as it is writteÌ„ Mat. 10.37 He that loueth Sonne or daughter more theÌ„ me is not worthy of me And so that grouÌ„d is much more perfect absolute which out of a Pagan is thus expressed Seruato ius et metue mortalis Deum How Godly and just a thing it is to establish a perfect Vnitie in these Kingdomes for the confirmation of an euerlasting peace betweene them and by consequence thereof for the increase and propagation of Gods truth and his Gospell in a former treatise I haue shewed according to the best of my vnderstanding Now I take in hand to speake of our auncient Lawes and God is the beginning and end of my worke The thing it selfe is no lesse fit and necessarie for this time to be knowne then obscure and difficult to expound For whether we consider our Statutes enacted since the Norman wee shall finde them grounded vpon moste just and prudent jntentions or the remnants of our Actes made by the Saxons we shal see them ful of Godly deuout admonitions or the secret footesteps of the auncient British constitutions appering yet in the bodie of our common Lawes the principles thereof will appeare to be the verie Lawes of the eternal God written in the two immortal tables of nature Scripture The reason heereof surbordinate vnder the gracious ordinance of the Almightye was either the blessed dispositioÌ„ of our Princes whose matches for Godlinesse and vertue no countrie but the Cradle of our Sauiour could euer affoord as our eyes now doe witnes or the natiue inclination of our people most apt to be led by piety and deuotion as the greatest number of examples doe prooue or the religious happie counsell of Elutherius to Lucius King of Brittain who hauing publikely receaued in his kingdome the faith Gospel of our Lord and studying to amend his Lawes then vnperfect sent vnto the said Elutherius for a Coppy of the Romane Lawes The Christian Bishop made such an answere to the first Christian King as betweene two such persons ought to passe As the most high God answereth his most faithful seruant Exo. 25.40 Inter Leges S ti Edwardi LaÌ„b Archaion Fox ex Antiquo codice See also Monemuthens Bed Li. 1. Pontic vir Make al thinges according to the patterne c. So writeth this good Bishop Petistis a nobis leges Romanas et Caesaris vobis transmitti quibus in regno Britanniae vti voluistis Leges Romanas et Caesaris semper reprobare possumus Legem Dei nequaquam Suscepistis enim nuper miseratione diuina in regno Britanniae Legem et fidem Christi Habetis penes vos in Regno vtramque paginam Ex illis dei gratia per consilium regni vestri sume legem et per illam Dei patientia vestrum rege Britanniae regnuÌ„ Vicarius vero Dei estis in Regno iuxta Prophetam regem Psal 24. Domini est terra et plenitudo eius orbis terrarum et vniuersi qui inhabitant in eo Et rursum iuxta prophetam Regem Psal 45. Dilexisti iustitiam et odisti iniquitatem Propterea vuxit te Deus tuus oleo Laetitiae prae confortibus tuis Et rursus iuxta prophetaÌ„ regem Psal 72 Deus iudiciuÌ„ tuuÌ„ regi da et iustitiam tuaÌ„ filio regis Non enim IudiciuÌ„ neque iustitiam Caesaris Filij enim Regis gentes Christiane et populi regni sunt qui sub vestra protectione et pace et regno degunt et consistunt iuxta Euangelium quemadmodum gallina congregat pullos sub alis c. Gentes vero regni pulli vestri sunt quos diuisos debeâ—is in vnum ad concordiam et pacem et ad fidem et ad legem Christi et ad sanctam ecclesiam congregare c. This counsell I say might bee the reason and by all likelyhood was the reason that our common lawes are so much grounded vppon the lawe of God which I am the rather mooued to beleeue for that I see our learned Iudge Mr. Bracton so oftentimes inculcating the sentence of this Epistle and namely that Rex est vicarius Dei Lib. 1. C. 2. and deriuing such excellent conclusions from it Lib. 3. C. 9 as of Godlines in the Prince and of dutie and obedience in the subiect c. And the effect heereof hath been that which is written in the Scriptures Verbum Dei manet in aeternum These lawes saith the learned Sir Iohn Fortescue haue been in the times of the Brittaines Romaines Saxons Danes and Normanes Fortescue de laudibus Legum and if they were not the best Lawes some of those Kings especially the Romans would haue changed them Of these thinges therfore I haue to speake matters farre aboue the mediocritie of my knowledge but that I may the better do it I humbly beseech thee O true light of eternitie to whome all ages and times are present to reuiue the memorie of thy glory established by thee in our auncient Lawes lighten my vnderstanding confirme my judgement leade mee in the wayes of truth and justice seeing that without thee neither any man can doe nor I can speake any thing Cap. 2. ORder of learning and of the said
qui postea temporibus Saxonum vocabantur Aldermani And to say that the Britaine 's vsed the name of Senator or borrowed this name of the Romanes is very publikely for they liued in perpetuall hatred and hostility with them as they shewed vpon aâ—l occasions followed not their lawes nor institutions in any thing but by constraint seeing them to be Paganes Idolaters oppressors of their liberty and persecutors of their Religion Neither doth Beda nor any other Historian speake of any Lawes made in Britaine by the Romanes nor of any iudgements by them exercised but of those if they be to be called iudgements whereby Albanus other holy Martirs were moste cruelly put to death Therefore I conclude that the Britaine 's tooke this name other institutions not of them but either of the auncient statutes of nature or of the latter restitution by the Gospell These Nobles therefore together with the Priests other selected commons made the common Counsel of this Iland whereof Caesar speaketh and which at this day is called the Parlament and in the moste of our Histories called consilium Sapientum In the Lawes of Edward before the conquest in the Lawes of King Ina made about the yeare 720. after our Lord Christ there is mencion of theis Parlament consisting of these degrees of men An hundred yeares before that we read that Bertha the Christian Queene of Kent procured judgements to be established Cum consilio sapientum Bed Lib. 2 that is by the Parlament where also the venerable Bede speaketh warily saying that it was after the exaÌ„ple of the Romans but not saying it was after the Romane manner An hundred yeares before that againe in the time of Arthur the warrior we reade of Parlaments and the moste learned King Alfred in his lawes saith plainely that vpon the propagation of the Gospell Lamb. Ar. Nonnulli tam in Anglia quam in alijs regionibus Episcoporum aliorumque clarissimorum sapientum conuentus agebantur which could not bee after the Romane fashion whosoeuer obserueth the circumstances of the matter he shal perceiue it euidently to bee spoken of the time of King Lucius as I said before for in his time being peaceable the Gospell was first publikely receiued Beda Galfrid MonuÌ„ Polidor and after his death this Kingdome continually laboured with intestiue warres in which it was almost impossible to gather counsels and to establish Lawes and gouernment as he speaketh And as it was in this south part of Britaine so was it likewise in the north as appereth by their Chronicles They had Kinges Priestes Nobles and Parlaments agreeable to the forme of gouernment of the moste auncient Kingdomes and to the Lawes of God written in Nature Scripture in this forme consisteth the estate of both the Kingdomes of great Britaine euen to this day And thus much concerning the principall persons whereof the body of our state did and doth consist the next thing to be considered is of thinges according to the proceedings of the institutes but because nothing can bee without a place and wee shall haue better occasion to speake of the diuision property and dominion of things heereafter I will therefore vnder correction intreate now somewhat of the auncient diuision of this Iland the common place subiect of our discourse and of the iudgements therein aunciently vsed Cap. 7. IT is thought by some that this Iland before the comming of the Romanes Camden was rude and barbarous by other that King Alfred was the diuider of this Iland into such Shires and porcions for so the word importeth as at this day we see But these two opinioÌ„s to be true ingeneral I caÌ„not yeeld for if I vnderstaÌ„d our stories it wil easily appeare that this laÌ„d was auncieÌ„tly loÌ„g before Alfreds time deuided almost into as many parts in like manner by the seueral families or nations of auÌ„cient Britaines which are thus reckoned by Hooker in his 2. Booke of the description of England Cap. 4. viz. Nonantae Selgonae Dannonij Gadeni Ottadeni Epdij Cerones Carmonacae Careni Cornubij Decantae Logi Mertae Macomagi Venicontes Texati Polij or Elgoni Brigantes Parisi Ordouici alias Ordoluci Câ—…tiâ—uchlani Coritani Trinobantes Demâ—te Cangi Silures Dobuni Atrebatij Cantij Regni Belgae Durotriges Giruij Ioeni Tegenes Cenimagni Segontiâ—ci Deiri Venedoti Bibroci with some other whome he and others name And of these some as Mr. Camden plainely sheweth possessed one Camden Britann others two or three of these Shires which now are knowne these nations of Britaines are in part named by Caesar others by Mr. Camden Polidore and others So that King Alfreds diuision seemeth not altogether new but rather a reuiuing and more exact description of the old And this is coÌ„firmed by the testimony of Polidore who in the lawes of Mulâ—â—tius maketh mention by name of Counties or Shires Or those Lawes more shall be said hereafter In the meane time it appeareth that this land was deuided into porcions or shares Higden Polichron HuntingdoÌ„ euen by the Britains There were also amongst those Britains euen before Luc us Caesars times diuers great Cityes wherof 28. are named by our Chronicles and some of theÌ„ by Caesar Iter Britan See the discription of England by Hookâ—r besides Townes and Castles innumerable as Huntington saith and as appeareth by the auncient Iter Brittanniarum described by the Romans which are no signes of a barbarous people For if ciuilitie take his name of a Citie or Citizen Cities Citizens caÌ„not be ruled without goodlawes the Britaines were ciuill and ruled with good Lawes which were Citizens of many great Cities And the inconstancy of Caesar and other Romanists is heere to bee noted which call the Britaines barbarous and yet confesse that they had many good Cities Kinges Nobles Gouernors discipline of warre and peace commerce and traficke with forraine Nations and al other parts ef ciuilitie And the question of Pâ—lidore is somewhat ridiculous wheÌ„ he asketh whether any man euer reade of Canterburie Bath Carleâ— or Lecester in Caesar Tacitus Straho or Ptolomy No gentle Mr. Polidore but in Caesar wee reade of the City of Trinobantes and of other Cities and of the Citie of the Brigantes Londinium Louentium Maridunum in Tacitus and Ptolomy your selfe confesse in the same book that it was a Law among the Britaines that the inner parts of the Iland should not be discouered to strangers As for the fastnesse of Cassibellan and the painting of their faces if the storie be wel examined circumstances compared it will easily be prooued that such thinges were not originally in the gouernement and maners of this our countrie but were the wilde fruites of long continued ciuill warres that raged amongst them proceeding of tirranies in their Princes superstition and Idolatry in their Priests rebellion sedition murders thefts adulteries and disobedience in the Subiects some of which thinges are to be gathered by the words
of the manifold calamities sent by Almighty God the most iust seuere judge at sūdry times vpō this Realm namely the suppressing and consequentlye the violation of this his Couenant of these our auncient lawes and of the law of God wherevpon they are founded by the predominant violēce of Idolatry superstitiō iniustice vncleannesse Breach of faith and loialtye both before the Norman and sithence If it be not so peruse the Particulars that the holy Gildas and aftter him the learned Sir Iohn Prise obiecteth against the first Fritains that the reuerend Bede and Geffery of Monmouth vrge against the second age that Maister Camden other Chronicles but specially Maister Fox collecteth against the Saxons that are at large described in the times of King Iohn King Henry the sixth who suffered themselues and these lawes to bee ouerswaied by the supreheminence of Rome of the cōtrary side if we cōsider the best meanes to establish the perpetuall vnitie and felicity of these two mightie nations now againe reunited we shall finde it to consist principally in conforming them both as much as may bee to the lawes of that God of vnitie which ordeyned the auncient Lawes of both kingdomes to be very like almost the same as I haue shewed For what Kings haue reigned in more magnificence and glory then the Britaine Princes instiled by Elutherius the Vicars of God in their kingdome then the Saxon Princes indowed by Beda with the Title of Christianissimi thē the Normans which haue moste mainteyned these Lawes most opposed themselues against the vsurping power of the forraine Prelate namely Edward the 1. the 3. and the 6. Henry the 7. and the eight acknowledged by the enemie of our faith to bee defender of the faith the late most of all excellent Elizabeth which was blessed with a kingdōe longer then the raignes often that cursed her And now the no lesse excellent Maiesty of K. Iames the true heyre aswell of the goodnesse as of the greatnesse of his Predecessors And who haue fallen into greater miseries then those that beeing inuested with such magnificent Titles by right haue suffered others to take their Titles authoritie by vsurpation of whose Calamities because my heart doth tremble to thinke I will forbeare my pen to write Yet by this we see how God hath fed and directed vs with the staffe of Beautie Zach. 11. and with the staffe of Bandes but now hee will breake his staffe of beautie to disanull his couenant made with all people and hee will breake his staffe of bādes to dissolue the Brotherhood between Iuda Israell except we repēt of our manifold sinnes I will therefore conclude with the Godly words of one of our famous and learned Iudges Bracton Bractō L. 1 and one of our vertuous and Heroical Kings Canutus The first taking his ground out of the many times remembred and neuer to bee forgotten Epistle of Elutherius saith thus Rex non debet esse sub homine sed sub deo et Lege ad similitudinem Iesu Christi cuius vices gerit Brvctō li. 1. And againe Iudges doe sit in the seate of the K. himself as in the throane of God insteed of the K. as insteed of Iesus Christ For the K. is the Vicar Lieftenant of God iudgemēts are not the iudgements of men but of God and therefore it is said that the heart of the King is in the hād of God And a little after into the seate therefore of judgement which is as the Throne of the Diuine Maiestie let no man vnwise or vnlearned presume to ascend least hee turne light into darkenesse and darkenesse into light and least with an ignorant hād like a mad man he strike the innocent spare the offender and least he fall from aboue as from the Tribunall of God by attempting to flye without winges to support him And when any mā is to judge or to be made a judge let him take heed lest by iudging peruersly and against the Lawes for request or reward or a litle temporall comoditie He purchase to himselfe sorrow griefe eternall and least in the daie of Gods wrath he feele him to be a iust reuenger who hath said To me vengeance I wil recompence when the Kings Princes of the earth shal weepe lamēt at the sight of the Sonne of man for the terror of his iudgemēts from which neither gold nor siluer can deliuer them Who will not be affraid of that feareful trial where the Lord himselfe shall be accuser aduocate and iudge from whose sentēce none cā appeale For the Father hath giuē al iudgemēt to the son who shutteth no mā openeth openeth no man shutteth O strict seuere iudgment wherin mē shal giue account not onely of their actions but of euery idle word that they haue spoken who shall escape from that anger to come When the Sonne of man shal send his Angels which shal gather out of Gods kingdom euerie scandal those that doe iniquitie of them shall make faggots to burne and cast them into the furnace of fire where there shall be weeping and gnashing of teeth Without question God is a Iealous God and whosoeuer taketh his Couenant his oathe his name in vaine hee shall smart for it he shall smart Lamb. Arc. Now therefore saith Canutus in the conclusion of his Lawes I beseech all men in generall and commaund euerie man in particular in the name of the immortall God that sincerely withall their hearts they turne to God and withall care and diligence search what is to be done and what it is to bee auoided as it is a thing most conueniēt for our saluation that we loue God keepe his commaundements giue diligent heed to the words of his messengers For they shall produce vs before his sight in the day wherein the Lord shall come to iudge euery man according to his workes Then happie shall that keeper bee that shall bring the flocke committed vnto him into the ioyes of heauen by the paines that he hath takē vpon earth And blessed shall bee the flocke that followed such a shephard which hath pulled thē from the pawes of the Deuill and commended them as a purchase vnto God Therefore let vs all in concord and vnitie studdie to please God and fly from the fearefull torments of his wrath iudgement Let the Preachers and Ministers of Gods word as it is their charge and needefull to all mens saluation oftentimes preach the glory ioyes of Gods kingdome and let all men with diligent serious and attentiue eares and mindes heare and obserue them yea let them beare the commaundements of God alwaies imprinted and infixed in their hearts To conclude euerie man for the greater aduauncement of the diuine glorie both in word and deed Godly and cheerefully apply himselfe to doe well by what meanes soeuer they may So at length in the end we all aboundantly shall obtaine his gracious mercy Blessed be the name of the Lord to him bee honor praise and glorie from this time foorth for euermore Deus non deseret
set downe Touching the Epistle it selfe it contayneth an answer to the demaund of King Lucius The demaund was to haue the Lawes of Rome and Caesar The answer consisteth of two partes a Rejection We may saith he alwaies reproue the Lawes of Rome Caesar but not the Lawes of God And an exhortatiō to take a Lawe for his Kingdome out of the Lawe of God This he inforceth with diuers reasons and sentences of Scripture which with an admirable consent do euery one proue each other and euery one the seuerall partes of the answer First you are Gods Vicar therfore you must rule by Gods Law not by Caesars The earth is the Lords therfore it must be ruled by the lawes of the Lord and not by Caesars God hath annoynted you to be King Caesar hath not annoynted you therefore c. O God giue thy judgements to the King therefore not Caesars what then would you doe being a godly Christian vpon the reading of such a Letter Let our most Christian King St. Edward giue vs counsel who in his Lawes Lāb Arch. taking the words of this Letter for his ground-worke saith thus Rex autem quia vicarius summi regis est ad hoc est constitutus vt regnum terrenum populum Domini super omnia sanctā tucatur Ecclesiam eius regat ab iniuriosis defendat maleficos ab ea euellat And a little after he sheweth how this may be done Debet vero Rex Deum timere super omnia diligere mandata eius per totum Regnū suum seruare Debet etiam sanctam Ecclesiam regni sui cum omni integritate libertate iuxta constitutiones patrum predecessorum seruare fouere manutenere regere contra inimicos defendere ita vt Deus prae caeteris honoretur prae oculis semper habeatur Debet etiam bonas eges consuctu dines approbatas erigere prauas autem delere omnes a regno deponere Debet iudicium rectum in regno facere iustitiā per consilium procerum regni sui tenere Thus saith St Edward but if the counsell of so excellent a King doe not resolue you yet in the mouth of two witnesses let euery word be confirmed and peruse the wordes of a most excellent Counsellor and Lawyer I say Bracton lib. 3. cap. 9. who there speaketh to the same effect Bracton grounding likewise vpō the same golden foundation Rex est Dei Minister Vicarius Potestas itaque sua iuris est non iniuriae Potestas autem iniuriae Diaboli est non Dei and so after to the like effect as St. Edward had spoken I think therefore there is no man but wil say that King Lucius did accordingly namely that according to the contents and directions receiued he did call a Counsel or Parlament a thing vsed in those times as I will shewe heer-after He did suruay the State and Lawes of his Kingdome that which was agreeable to Gods holy worde he did confirme and that which wanted he did newly enact Reasons perswading me to thinke that King Lucius did so are these First his Godly zeale which would neuer haue written to Rome for Lawes without a great desire to haue the best lawes to gouern his Kingdome and to my vnderstanding it is senceles and absurd to say that whē he had receiued an answer so good agreeable to his desire that he would leaue it vnfollowed and vnperformed It cannot be said that he wanted will seeing he sent for Lawes nor that he wanted time opportunitye power or consent of his Nobles or people seeing all or the most part yea the Druidae and Flamnies embraced Christian religion together with him Beda ponticus virum Polidor Monemuth as our Histories testifie and he ruled the Britains long time after in flourishing peace and tranquility Againe that he retayned some of the former Lawes the common opinion of those auncient Christians of the Primitiue age perswadeth me wherof I will speake more whē I come to K. Lucius his lawes Yet by the way one text will I cite out of Iunius Iun. in epistola ad Politiam Mos who saith that as long as Heathen Emperors Kings held the raines of gouernment the Christians gaue not their mindes to dispute the question of the vse and authoritie of Moses Lawes but when the State changed Christian Emperors were aduanced then those most sapient orthodoxall Fathers seeing it most expedient to turne about this world without any greater noise forbearing the troubles of secular affayres left the authoritie both of making lawes giuing iudgements to the ordinarie Magistrates but if any were instituted Contra Rectā Rationem quā in natura et scriptura explicauitus De against right good reasō which God in nature Scripture hath described that either with gentle calme admonitions they procured to be amended or patiently suffred if it were incurable least the whole common good which Augustin before called Peace should be stirred in hope of some particular For that many times the importunitie of men bringeth to passe whiles they seek to cure one euill they shake and weaken the publike estate In which wordes besides the point in hand is much to be obserued that nothing ought to bee in the Lawe against reason which is the vniuersall Maxim the maine foundation and as I may call it the abridgement of all our common Lawe which heere you see to be the rule of those auncient fathers and affirmed to haue been expressed by the Diuine wisdome of God in nature and Scripture This is it whereby all our questions and controuersies all our arguments and iudgements all our Statutes and customes are ruled and ouerruled enlarged and corrected But againe to our purpose St. Augustin speaketh much to the same effect De Ciuit. Dei lib. 19 C. 17. Haec ergo caelestis Ciuitas dum peregrinatur in terra c. This heauenly City whiles it is in Pilgrimage vpō earth calleth Citizens out of all nations and in all tongues assembleth a Pilgrime societie not regarding the manifold diuersities of manners Lawes and customes not repealing or destroying any of those thinges whereby the terrene peace so I reade is eyther procured or preserued but rather keeping and following that which although it be diuerse in diuerse nations yet still is intended to one and the same end of Terrene Peace so long as it is no hindrance of the Religion whereby the onely supreme and true God is taught to bee worshiped To the same effect he speaketh againe in the nineteene Chapter of the same booke These authorities therfore leade me to beleeue that King Lucius retayned such of the auncient institutions as were not Contra rectam rationem as Iunius saith quam in natura et scriptura explicauit Deus And that he did take some part of his Lawes out of the Scriptures is proued by the testimonies of our Chronicles compared with the
Sir Iohn Fortescue the learned Sir Iohn Fortescue hath fully prooued and whosoeuer shall consider of it indifferently shall finde that it is the moste righteous and Godly course that euer was found out and therefore moste likely to proceede from the piety of that holy King Also in that purest age of Christianity Gra. Dist 11. et Dist 20. it was held for a ground that first the Scriptures ought to be searched whether any rule might bee found for the action intended or not if not then Mos populi dei et Sanctorum exempla the manner of Gods people and the examples of holy men were to be followed And if holy men ought to be imitated then who if not our moste holy Sauiour as the Apostle saith Ephes 5 1. Cor. 11. Be followers of God as deere Children and be followers of mee as I am of Christ Quo est detestabilior istorum immanitas So much the more is their crueltie to be abhorred which labour to hide not onely the words but also the exāples of Christ away from vs. Therefore I say Lucius did institute the trial of al matters in fact Act. 1 22. et 10 41. Iohn 15.27 to be by twelue witnesses as our Sauiour Christ ordayned chose twelue to beare witnesse of his resurrection neither doe I finde any other law president or exāple from whence this manner of Trialls should be taken But I finde that the reuerēd Elutherius from whom Lucius had much of his light vsed the same rule practise for that good Bishop Iuxta ordinationem Apostolorum according to the Apostles ordinance Fascic Tēp did decree that no meates vsuall for mankinde should be refused of Christians And Exemplo Christi by the example of Christ ordained that none should be regraded before he were condemned Thus they tooke a rule or president for euerie thing out of the Scripture And the authoritie of Moses to the contrarie is not to be obiected for although he saieth that at the mouth of two or three an offender shall die yet he addeth not the negatiue that more should not be vsed Therefore the Apostolicall Canons before cited and the example of our Sauiour in the affirmatiue was a better warrant And it is most apparant that iuries were vsed among the Chsistian Britaines and before the Saxon times for proofe whereof although in mine opinion the testimony of the profoundly learned Sir Iohn Fortescue should bee sufficient saying expressely that these lawes were vsed in the time of the Britaines Sir Iohn Fortescue yet for the further satisfaction of those that leane to much to the opinion of Polidor and other Italians I will adde more reasons authorities to the same point First the most learned Antiquary of our Nation Mr. Camden Camden Britannae sheweth plainely that it was not inuented by the Conqueror as Polidor saith but it was in vse in the daies of King Etheldred the Saxon Secondly the most excellent professor of our Lawes Praef in L. 3. Sir Edward Cooke before cited prooueth by substantiall records that this triall was before the Conquest So there are three witnesses euerie one of exceeding great learning against one Maister Polidor Tantae molis erat Romanam excindere gentem Such a labour it is to ouerthrowe these Italian opinions of which our nation is too fondly credulous But let vs goe forward although my simple discourse can adde no weight vnto their most graue iudgements especially the last cited which is grounded vpon records yet vnder fauour I will adioyne some other testimonies and proofes In the time of King Edward the third when by all mens consent our Iudges were most exactly learned as in deede it was a time excelling not onely in Martiall glorie but in learning and wisdome I finde Mr. Belknap a reuerend Iudge concurring in opinon with these before named 41. E. 3.31 The Law saith hee was founded in this that euery Inquest shold be taken Per duodecim liberos et legales homines et non per pauciores If it were a foundation of the common law then without question it was one of the first Lawes and we must needes confesse that no Law can be without tryalls and it cannot be proued that euer any other triall was vsed besides this in pleas of land or inherirance in this kingdome But to make it yet more plaine the City of Lōdon is and was in the times of the Britaines by the confession of many learned writers namely Caesar Tacitus Ptolomy Ammianus Marcellinus Gildas Galfridus c. a moste auncient City a place of gouernmēt ruled by a gouernor the sea of a Flamine or Bishop not a fastenes of the woodes as some haue imagined vpon the generall and vncertaine words of authors which neuer saw it but frequented and cclebrated with concourse of Merchants plēty of commerce as Tacitus affirmeth Now I pray you beholde with the eyes of your minde the forme of such a Citie and tell mee how you can imagine it to stand without a Court of Iustice the bond of commerce for the deciding of controuersies or how you can imagine that such a Court should be without a due forme of Trialls But least I may seeme to deale by immagination for the first point that it had a Court Calf Mon. Pontic vir Galfridus Monemuthensis and Ponticus virunnius out of the auncient British Historie doe testifie in playne words that in the daies of Iulius Caesar Irelgas Nephew of Cassibellan being slaine by Cuelinus Nephew to Androgeus Gouernor or Lieftenant of London a commaundement was giuen to Androgeus to bring Cuelinus to the K. Court there to receiue Iustice his answere was Sese suam habere curiam et in illa definiri debere quicquid alquis in homines suos clamaret si ergo rectitudinem de Cuelino decreuisset appetere ipsam in vrbe Trinobantum ex veterum traditione fieri praeciperet He alledgeth that hee hath his Court wherin ought to be determined whatsoeuer any man laide to the charge of his men that right ought to be done vnto them in the Citie of London according to the aunciēt custome For the second point if Mr. Polidor will not giue vs leaue to thinke that London had this iurisdiction in Caesars time yet without his leaue I wil proue by many infallible records that the same City of Londō had this iurisdiction and namely this tryal by twelue in the time of the Britaines thus This City of London hath and had alwaies from time out of minde their Hustings the writ of right in London tryable by twelue the Assise of Freshforce tryable by twelue and the tryall of pleas of the Crowne by twelue it must needes be that these Liberties were begun eyther by Parlament or prescription eyther in the time of the Normās of the Saxons or of the Britaines But in 14. E. 2. when they must needes haue knowne if there had bin any Patent or
Acte of Parlament either of the Saxons or Normans for it A quo warranto in Itinere in Turri London being brought for these and other Liberties The cominaltie of that City make their claime to the rest by seueral Patēts but to these by auncient custome and prescription confirmed by Charters in these words Quoad articulum quod c proferunt cartam Henrici aui Regis nunc in qua continetur quod idem H. rex 16. die Marcij Anno regni sui vndecimo concessit ciuibus predictis quod Hustingum semel tantum in hebdomada tenatur secundum consuetudmem ciuitatis Et proferunt aliam cartā eiusdem Domini H. Regis in qua continetur quod idem Dominus Henricus Rex 20. die Martij Anno regni sui 52. cōcessit ciuibus suis London quod de placitis ad coronam pertinentibus de his maxime quae infra ciuitatem praedictam et eius suburbia fieri continget se possunt disrationare secundum antiquam consuetudinem ciuitatis praedictae By these Charters you see that the pleas aforesaid are to be proceeded and tried according to the prescription or custome of the Citie so are the words of the Assise of Freshforce By the way the reader is to vnderstand that prescription or custome here is not said to be the continuance of many yeres as 50.60 or an hundred But that in Law is said to be by prescription the beginning whereof cannot be proued by any record writing or lawul testimony such a prescription is heere to be vnderstood Now that the custome such a prescriptiō of London is was in the Conquerors time and before that their trialls should be by a Iurie of twelue Fit N.B. 6. all their records testifie The reuerend Iudge Fitsherbert testifieth and most euidently the Record of the Quo warranto aboue cited testifieth for so it goeth forward Quoad articulum predictum quod ipsi de placitis ad coronam Regis pertinentibus se possint disrationare secundum antiquam consuetudinem ciuitatis dictum est eis periusticiarios quod declarent Curiae modum et formam huiusmodi disrationamenti et consuetudinis Qui dicunt quod Antiqua consuetudo ciuitatis est quod siquis liber ciuitatis aliquod delictum fecerit per quod periculum vitae incurrere debeat et vsque Iter Iusticiariorum manucaptus fuerit et inde in Itinere postea sit ad Rationē positus se disrationare potest per duodecim Iuratores patrie secundum Legem communem vel per magnam Legem Ciuitatis viz. per triginta sex legales homines ciuitatis c. Nothing can bee more plainely proued then the point in questitiō is by this record viz. that the trial by twelue was vsed both by the common Law and by the most auncient custome of London I say by custome whereof no beginning could be prooued Wel then it was cleere in the times of Edw. 2. Edward 1. and Henry the third and so much is also proued not onely by this record but by their great Charter for they giue them no new liberties but Ciuitas London habeat omnes antiquas consuetudines Mag. Car. this was within two hundred yeares after the Conqueror if any Law or Patent had bene made of it in al that time without question they would haue pleaded the patent or Law and not prescription For a Satute or patent doth determine a prescription The Conqueror dooth he make them any graunt or Patent heereof or dooth Edward the Confessor one of the Saxon Princes graunt any such matter or make mention that any such thing was graunted by patent vnto London Ne my Not a minim of any such matter It is written in their Lawes Lamb. Arc. in Leg. Edwardi Liber Recordorum London Dunthorne Debet etiam in London quae caput est regni et Legum semper curia Domini Regis singulis Septimanis die Lunae Hustingis se dere et teneri Marke how it agreeth with the patent before pleaded In ea itaque super sunt ardua compota et ambigua placita coronae et curiae domini regis totius Regni predicti quae haec vsque et cōsuetudines suas vna sēper in violabilitate cōseruat vbicūque ipse rex fuerit siue in expedicione siue alibit propter fatigationem gentium et populorum regni iuxta veteres Consuetudines bonorum patrum et predecessorū et omniū principum et procerū et sapientū sentorum totius regni predicti See the Charter of K. William the conqueror in Hookers Chron. Beholde then here is no new institution mencioned neither by the Conqueror nor by the Cōfessor but still the auncient customes And if this had bene by patent or Parlament of any Saxon Prince without all question these two Princes would haue knowne it For all the Saxon gouernment in peace from the first King vnto the last was not aboue 300. yeeres both Edward and VVilliam were most diligent searchers and Registers of all the lawes Liberties Customes of their kingdome as appeareth by the Domesday Booke and by that which is recorded by Houeden and others Besides in the Saxon times not a peece of lād passed from the Crowne and much lesse any liberties or Iurisdictiōs which are parcel of the royal prerogatiue without Patent as appeareth by the manifolde patents of manors Landes Liberties made to Churches and Monasteries whereof those that belonged to the Abby of Croyland Ingulfus Historia Eliensis are faithfully recorded by Ingulfus those of the house of Ely by another and others are to be seene in the Churches that remaine The City of London therefore had this Libertie and Maner of trial in the Normans time not by patent or new Law but by prescription they had it in the Saxons time not by patent or new Law therefore by prescription it must needes bee true that they had it from a time whereof no proofe could be made that is long before the Saxons I say by prescription as it is pleaded euen from the Britaines And this that I haue said of London I may say of all auncient Cities where they haue like customes and Liberties yea the auncient hundred Courts Shiermotes Wardmotes Swainmotes Leets and Wapentakes which are often mencioned in the Saxons Lawes as thinges in vse Let any man shew me what other kinde of triall or inquisition they had then this and Quo warranto by what law they had this but by like prescription If you bring foorth the triall by fire and water called Ordell it was by al likelyhood but a superstitious inuentiō in the Saxon times In Legibus Canuti de Foresta was vsed onely in criminall causes where the truth could not otherwise be known as appeareth by the Law of Canutus And although the Conqueror in his absolute commaund did something of his owne head Houeden Lamb. yet it appereth plainely that when by the earnest intreaty of his
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„