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A11376 Of the antient lavves of great Britaine. George Saltern Salteren, George. 1605 (1605) STC 21635; ESTC S116514 35,849 88

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Nobles he was perswaded to establish the former lawes he then by the counsell of his Nobles and according to the course and common Lawes of the Realme impanelled twelue men of euerie Shire to inquire make a true presentment of the said auncient Lawes and customes for so be the words Electi de singulis totius patriae comitatibus duodecim viri Lamb. Arc. Houeden iureiurando Coram Rege primum confirmauerunt vt quoad possent recto tramite incedentes nec ad dextrā nec ad sinistrā diuertentes legum suarum et consuetudinum sancita patefacerent c. And amongst the rest they make menciō of the customes of London which I cited before I say nothing here that the footesteps of this triall are found in the lawes of Etheldred made at wantage which is cited by Maister Camden nor of the ordinance made for the mountainers of Wales Malmesbury Huntingdō Ethelwardus Historia Ely remaining with St. Robert Cotton Ingulfus nor of the law of Kennethus the famous Scottish King about the yere of our Sauiour Christ 840. mentioning some such matter nor of the learned diligent Historians that liued neere about the conquest might easily haue tolde vs if any such thing had been begun by the Saxons nor of the Historie of Ely written before the conquest and Ingulfus soone after plainly speaking of Mannors Feoffements Shiriffes Coūty Courts Tearmes at Londō recoueries in an assise or writ of right as of thinges thē common and vsuall We read also of Parlaments wapentakes homages fealties discents from the Grandfather to the Nephew Eschets to the King for want of heires in the daies of Aurelius Ambrosius Leland Hooker Galf. Mon. Gildas and of Arthur the worthy streight way after Gildas maketh mencion of Courts Iudges Freshsuit after thieues Iudgements which could not be without trialls By all which I thinke it is manifest that these points of common law namely these trialls by twelue are of most aunciēt antiquitie according to the commō law and vsed amongst other customes of the citie of London before the times of the Saxon and Norman Princes of whome no such Libertie or course of proceeding could be gotten without patent and no other forme of auncient tryalls doth appeare vpon which I conclude as before that they had it in the times of the Britaines The same is prooued by al the auncient and new records of Assises of Freshforce of writs of right and other tryalles in London which must bee all falsified and many thousands of records besides if wee ouerthrowe this prescription And this being so consonant to the iudgments of those excellent men before cited Cāden Belknap Sr. Io. Fortescue Sr. Ed. Cook Let vs now leaue Maister Polidor his followers which either neuer saw or did not vnderstand our auncient Histories and Records let vs leaue them I say to their owne imaginations with this admonition to all discreet Antiquaries that they be not ouer-hasty to beleeue either the Roman or other Authors speaking of the Britaines thire enemies but holding them suspect for partialitie or ignorance which may easily appeare to euerie iudiciall Reader let vs followe the true groundes confirmed by these faithfull Monuments of our Lawes and the Histories thereunto agreeing And this being ascertained it is easie now to beholde from whence all our Assises of nouel diseisin of Mordancester of darrain presentment our great Assises Iuries Challenges the rest of which Mr. Bracton at large discourseth are lineally descēded being as I take it the greatest part of our common Lawes and it appereth by that which is before spoken that these also are most agreeable to the Scripture of God whereupon I conclude fully that all our common Lawes was in vse in the Britaines time long before the Saxons howsoeuer suppressed the bookes thereof defaced by forreine inuasions and intestine dissentions And thus much of Lucius and the Britaines Now of the Saxon Princes Cap. 11. IT hath bene a worke of the special prouidēce of Almightie God of his infinite mercie to this Iland in the middes of Poetical fables wherwith the British Histories haue bene mixed and of those Barbarous inuasiōs which haue wasted and spoyled them to leaue vs yet certaine remnants and monuments whereby to iudge of those long past Antiquities in iudging wherof men by taking contrarie courses haue made the controuersie more difficult that the truth foūd out might be the better confirmed For some haue giuē thēselues to fauour the Romane Historie so much as to abrogate all faith and credit from the British as if the ambitious Romanes Caesar would say nothing for their owne aduantage who of all others most couetous of glorie is iustly noted by Suetonius Lucian and Asinius Pollio to haue written his commētaries as much as he might to saue his owne Honour especiallye of his Actions in these remote places Others haue gone so farre to the bowehand as to fauour all the vanities of the Poeticall Bardes as if nothing could bee denied which they had once turned into Rythme But that God which came into the world to beare witnesse of the truth so much doth he loue it hath left vs rules and directions to trie out the verity of aunciēt times By the mouth of two or three witnesses euerie word shall be confirmed sayth Moses and as it is moste certaine truth cannot be so much oppressed as to be vtterly destitute of proofes Let therefore the proofe rest vpon witnesses and comparison of circumstances it will appreare as Sir Iohn Prise truely auerreth and learnedly prooueth that the British Story is in many things more to be credited then Caesar and Polidore and other Italians Besides the Scottish Historie agreeing in many things with vs manifestly conuinceth the Romanes of their Arrogancie and vanitie and with all ministreth further groundes not onely to proue the antiquitie and sincerity of our common Lawes but that the same or others much like obtained in Scotland also as well as heere which may bee seene by the Lawes of Brechus Fergusius answering in time to Mulmutius and Mercia and by the Lawes of Kennethus not much distant from Alfred and last of all by their Bookes of Regiam Maiestatem a principal booke of Common Law amongst thē agreeing in effect with our Glanuill And to say truth there was litle difference in Lawes and Religion betwixt these two Nations vntill the bloody warres that began after the time of our King Henry the third before whose daies Glanuill did write Againe the most auncient of the Saxon Princes law-makers doe make mencion of many thinges in our common Law which we are forced to beleeue that they receiued from the Britaines for that they speake of them as of things vsual and common Ina Alfred Lamb. Arc. Edgar other the Saxon law makers speake of the Parlament of Iudgemēts of Treason of Sanctuaries of Purgatiō of execution by hanging for theft of fresh sute after theiues
homicides of escapes of Tearmes kept at London of Recoueries of Exchanges Historia Eliensis of Feoffements of jntales of Cōmons 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 thē in vse which were allowed as agreeable to Gods word by those Saxon Christiās 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 Iudgemēts 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 womā 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 Saxō 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 G●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 Christiā 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 tae●…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 frequēt 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 whō God hath vouchsafed not onely by the cōfesson 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 chāged or abolished them speciallye the Romane● 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 giuē