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
words of the most Godly religious King Alfred in his Lawes Lamb. Arc. HigdeÌ„ Pontic virun Galf. Mon. The Chronicles say that Gildas the auncient Godly Brittaine Priest who liued not much more then 500. yeares after Christ and not much aboue 300. after Lucius translated the British Lawes into Latine afterward Alfred the Godly Saxone Prince traÌ„slated the same into Saxon and so continued them to posteritie Lamb. Ar. Alfred in the entraÌ„ce to his Lawes setting first the ten Commaundements and many judiciall Lawes of Moses and last the Apostolicall Epistle directed to the Gentiles mencioned in the Actes Actes 15 which hee concludeth with these wordes vsed in some translations That you will not haue done your selues do not vnto others windeth vp all with this conclusion By this one coÌ„maundement saith he it is euident inough that Law and right is to bee giuen to all men equally Neither shall we need of any other whatsoeuer iudiciall booke onely let this bee infixed in the minde of him that sitteth as judge vpon others that he giue no other sentence of other men then he wold haue to be giuen in his owne cause But in the propagatioÌ„ of the gospel saith King Alfred when many men beleeued in the word of God then many Synodes were gathered and also in England the Bishoppes other the wisest men assembled who being taught by the mildenes of Christ did set vpon euerie first offender a pecuniarie paine the leuying whereof they coÌ„mitted to the Magistrates c. And a little after Lamb. Archaion These I Alfred the King haue gathered together and committed to writing Then speaking also of the lawes of later time he addeth that there were many thinges also which he thought fit to be obserued in the acts of Ina Offa Ethelbert but the former words are plainely spoken of the Lawes heere established vpon the first receiuing of the Gospell by King Lucius doe fully prooue that the counsel of Elâ—â—herius was followed but with the mercifulnes mildehartenes of our Lord christ after the Saxon phrase and the Sinodes which Alfred speaketh of in the first arriual of the Gospell were the Parlaments of Lucius whose course that it was such as I haue said I pray you see also by that which followeth wherein I wil first speake of the remnants of the Lawes of nature secondly of the auncient Brittish Lawes made before and by Lucius and lastlye of those that followed vntil the Norman Cap. 6. IT is manifest in Histories both sacred prophane that the moste auncient Nations had their Kings or Princes their Priests their Elders or Senators and their Dukes or Captaines Cic. 3. Leg. Gen. 18. Iob. 12. Psa 105.21 and this seemeth to bee according to the Lawe of God Nature it is seene in the Histories of Egipt Iudaea Madian Arabia Greece Italy So Caesar found in Britaine Reges Druidas Caesar Principes et Nobiles Duces For it is to bee noted that where hee nameth the foure Kinges of Kent he sheweth withal that they were all subiect to Câ—…sâ—ibellan and calleth Cingâ—torix Nobilem ducem which proueth that he ment by Reges as commonly the Romanes vnderstood men of nobilitie power gouernemeÌ„t though it were but in one City as he saith of Immanuentius in London who perhaps might then be a LieutenaÌ„t of the city Proaem L. 2 as the Lord Maior is now and so dooth Polidor take it saying that they were foure Princes such as wee now call Earles or Dukes It is prooued also amongst Antiquaries that the famous Belinus and Brennus it is not hard to be proued that Mulmutius and others were Kings of this Iland Bed Lib. 1. and Beda the most faithfull Historian saith literally that before the yere six huÌ„dred after Christ in Britaine SeruabaÌ„t vt cuuque Reges Sacerdotes priuati et optimates suum quique ordinem But of the auncient Kings as likewise of their Elders or Nobles I finde two sorts the one fatherly and the other tirannical the first hauing and maintaining the authority of the first age Aug. de Ciuit Dei Lib 15. et 19. Arist 1. Polit Gen. 17.29 Gen. 27.29 et 49.10 wherein Patres familias regebant the Fathers of the greatest families which contained others were Kings as Adam and Sem taken to be Melchisedec and Assur his Sonne the Fathers of inferior families yet populous and great were Elders or Princes as Abraham Isack Iacob and Iob. Such there were in Britain as Caesar Gildas doe shew The second sorte obtained their authoritie by warre violence or Rebellion as before the floud Cain and afterwards Nimrod Esau and the like And of this sort there was also in Britaine whose times Gildas calleth vetustos immanium Tyrannos annos Gildas in Epistola But as I take it the most ancient Nobilitie of Britaine had a name signifying as much as Elders or Senators as they had in other Countries before mencioned Of that signification there is a name in many auncient recordes to be found a name of auncient nobilitie which importeth in signification an Elder which I take it was the name of that first most auncient British Noble man The name it selfe is Thane and I finde this name vsed for a Noble man in this Iland in Denmake in Ireland It must needes be a name proceeding froÌ„ some of the nations that raygned in these Countries but neither the Romans nor Saxons nor the Danes nor the Irish can giue a reason whereby to claime it as a woord of theirs Onely the Britaines haue a word most neere both in letter signification vse For where the Danes call a Lord or a Noble maÌ„ Thane as the Britains did and where the Irish call him Tane which by reason of his Eldership is next to succeede in some Lordshippe yet neither of them giue a reason for it onely the Britaines vse the woord Heane or Hane to signifie an Elder which answereth to the word Thane as I said both in letter signification vse And to verifie the saying that all thinges make an Harmonious consent to truth The Historie testifieth that the Saxons immediately after their comming into this Iland called their Nobles by a name of the same signification viz. Earles or eldermen a name of Nobilitie vnknowne in their owne Countrie where as I take it they are called Graues or Greues signifying a gouernor which name also they brought hither and it remaineth in some vse to this day But the name of Elder they learned of the Britaines And heereunto agreeth the text extant amongst the Lawes of St. Edward Sicut modo vocantur Greue Lamb. Archaion qui super alios perfecturas habent ita apud Anglos antiquitus vocabantur Ealdermen quasi seniores non propter senectutem cum quidam adolescentes essent sed propter sapientiaÌ„ Et similiter olim apud Britones temporibus RomanoruÌ„ in regno isto Britanniae vocabantur Senatores
of Caesar and al of them are laid to their charge by Gildas Ephes 5. and other Histories For such thinges procure the wrath of God to bee powred out vpon them as saith the blessed Apostle as Italy France and other Countries haue by that meanes receiued some barbarous touches and Ireland yet wasted and subiect to great calamities desolation is an eye witnesse of the same experience which heeretofore was gouerned with peace ad ciuilitie and now hath many examples extant of strange immannities And as these are the iust plagues inflicted by the diuine Iustice vpon our Neighbour Iland for the contempt of the Gospel and such offences as aforesaid so were the same inflicted in those times vpon the Britaines for treading vnder foote the light of nature and the knoweledge of God which Gildas signifieth that the first inhabitaÌ„ts had many excellent doctrines of Religion of justice which were but obscurelye in part preserued by the Druidae and some fewe of the better sort But to returne where wee left as in other thinges the Britaines maintained the manners of the auncients Diodor Sic. so in that auncient diuision of this Land into seueral Nations and families the most antique manner of great nations was obserued For not onely amongst the Hebrewes but amongst the Persians Athenians Romans Xenophon â—â—uy et ali in this Iland the Scots being freer from publike inuasions had the like diuisions being a poynt of ciuill gouernment verie necessarie for many good and Politicke constitutions and therefore vsed and preserued amongst all the primitiue Nations as agreeable to reason and nature and is to this day obserued as most consonaÌ„t to the word of God Cap. 8. AS in the distribution of persons and of the land the Britaines were politick and ciuil so in their proceedings of Lawe in their iudgements and in their Sciences it appeareth that they were not so barbarous as hath been taken for their varieties of excellent learning to note that by the way Sir Iohn Prise in his booke to King Edward the sixt Sir Iohn Prise Historiae Brit. Defensio prooueth that all learned sciences were knowne and handled amongst them To his booke I send those that are desirous to be satisfied in that point And although it may be strongly inferred that a Nation giuen to the studdies of all excellent learnings must needes be polished with good lawes yet for the more cleere euice heereof I purpose to shew that their lawes in particular were most iust good as being deriued out of the lawe of God written in nature and in Scripture and for that reason not altered but transmitted to posteritye and that they doe yet remaine amongst vs as I said before First of al vnder fauour I cannot agree the opinion conceiued by Gratian that al thinges by the Lawe of nature were common Part. 1. Dist but as I take it the distinction of properties was enacted by Almighty God in the beginning by him imprinted with other Lawes in nature by vertue of the wordes Gen. 1. vers 28.29 Beare rule ouer the earth which gaue to man both dominion and propertie of all thinges And to proue that it was so that it was so vnderstood Gen. 4. it appeareth by Cain and Abel who in the verye beginning were seueral possessors of grounds Lands Sheep fruites of the earth and Cities inhabited and in the Historyes of Abraham Iob and other the Patriarches there is mencion made of buying and selling and of diuers offences punished by Lawe But by what Lawe if not by the Law of nature And if the Law of nature be the same which is contayned in the Lawe the Gospell as Gracian in the first entrance of his distinctions affirmeth If the terme commaundements be an abridgement or exposition of the Law of nature as he saith in an other place And if distinction of propertyes be inacted the desire of other mens goods forbidden euery where in the Lawe the Gospell and the tenne commandements then is Gratian in this poynt contrary vnto him selfe But that it is so forbidden appeareth by the eight and tenth Commaundement and in the first to the Romanes where Couetousnes euen in an heatheÌ„ man is accounted for a sin Rom. 1. which could not be but by the lawe of nature as it is in that place vrged For where there is no Lawe there is no transgression saith St. Iohn other lawe there is not to condemne a Pagan Therefore taking that for a point not hard to be proued and which all lawes haue taken as a principall confessed by vertue of that lawe which is euery where the same how-soeuer some authorities haue swayed to the contrary we finde partly by the wordes of Caesar Dio Arist Eihic that this Island had her owne lawes concerning the diuision of groundes inheritances Iudges the distinctioÌ„ of properties that there were certaine courses of proceedings and that there were punishments for contempts and offences Dio Lib. 53 First Dio saith that 20. yeares after the comming hither of Caesar Britannia suis Legibus vsa est Britain vsed her owne Lawes and what these owne Lawes of Britaine were Caesar sheweth his wordes be these Druidae fere de omnibus controuersiis publicis priuatisque constituunt et si quod est admissum facinus si caedes facta si de Haereditate definibus controuersia est ijdem discernunt praemia praenasque constituunt si quisaut priuatus aut populus eorum decreto non stetit sacrificijs interdicunt The Druidae saith Caesar whose discipline he affirmeth to be fouÌ„d out and most perfect in Britaine doe iudge for the moste part of all publike and priuate controuersies If any offence or Homicide be committed or if the controuersie bee for bounds or inheritance they doe determine it appointing punnishments rewardes If any priuate man or corporation stand not to their decree they forbid them their sacrifices c. vnder the names of offences and Homicides he comprehendeth all criminall causes vnder controuersies of lands or inheritance are contained all ciuil actions by the words of controuersie iudgement determination and decree he sheweth that they had a certaine forme of proceeding by punishments and rewardes he sheweth that their sentence was compulsiue So this testimony proueth that they had a setled forme of iudgements in those three maine parts whereof Iustinian hath composed his whole worke I say De personis rebus et actionibus To touch a few particulars it must needes be inferred vpon Caesars words that they had a certaine forme of conueyance and course of inheritâ—â—ce in their lands For else how could controuersies of inheritance and Lands arise to be decided in iudgement Now if any man consider well of our auncient forme of conueyance by Feoffment and Liuerie and the solemnitie thereof vsed not onely after but before the conquest Histor Ely he shall finde it to bee are like of the
fatherly age wherein the Law of nature was with great wisdome obserued Gene. 23 For if you compare it to the assurance of Abraham you shall finde like precisenes of words I giue thee saith Ephron which is euer was our auncient word Do or Dedi Like descriptioÌ„ of things The field of Ephron in Machâ—clah ouer against Mamre the field and the Caue and al the trees c like assistance of witnesses in the presence of my people and that was also our manner euen before the Norman conquest and I can finde no beginning vnlesse I bring it to those auncient times Our word of inheritance heires that therby th' eldest Sonne shold inherite is eyther taken from the same lawe of nature and examples of the Patriarkes as Sem was heire of Noah and Iaphet was appointed to dwell in his tents God saith to AbrahaÌ„ Izhak shal be thine heire Izhak made Iacob his heire Ierim 49.1 Claime is made to some part of the LaÌ„d of Israel in the name of Israels heires Or else it was instituted by K. Lucius after the exaÌ„ple of God himselfe who made Christ the Lord heire of all things Hebr. 1.2 and adopteth vs in parte onely to be heires with him Lastly also the manner of our succession by inheritaÌ„ce how one heir is to take after an other as they are in degrees of proximitie Report 3. is by the moste exacte reporter of our Lawes Sr. Edward Cooke his maiesties Atturnie general collected and declared vpon the judgement of God in the case of Salphahads daughters Numb 27 cyted in Ratcliffes case where he also obserueth that in this point as almost in all others the common lawe is founded vpon the Law of God And this our maner of conueyance and limitation of inheritance I haue not read of in any other nation neither can finde any other beginning for it For other conueyances I finde a patent of King Arthur the worthy and another of one K. Kenwalchius both recited in a Patent of King Henry the second made to the Monastery of Glassenbury as I learne of Sir Iohn Prise Desensio Histor Brit who setteth downe words of King Henries Patent as I wold King Henrie had done of the other Also there are many other auncient Charters yet to bee seene of manors landes and liberties graunted to Abbeyes Churches other Religious houses long before the Conquest as of King Kenredus to the Abbey of Euesham of others to the Cathedrall Churches of Landaffe St. Dauies c. But of all other moste excellent is the Patent procured by Turketulus Lord Chancellor Lord of threescore Manors who surrendred them all to King Eared and obtained sixe Manors which are also named by Ingulfus to bee graunted to the Abbye of Croyland together with many auncient Customes and new liberties by which may be vnderstood the vse of the Common lawe then and long before Concerning also the Maner of suites in Law taking distresses or pledges that the defendaÌ„t shold finde sureties or mainpernors a thing verie auncient wherof we reade in the lawes of King Ina Lamb. Arc. yet continuing amongst vs I finde some such matter noted by Iob where hee speaketh of taking pledges Iob. 17.3 et 24.3 et 9. and desireth that God would put in suretie to answere him Also the particular Lawes of distresses doe prooue that they are taken out of the word of God For by the coÌ„mon Law no man may distreine a Millstone Deut. 24. a thing specially prouided by God himselfe Our auncient kindes of punnishments as by imprisonments Fetters Stocks c are named likewise in seueral places by Iob. Capitall executions are deriued from the Law giuen to Noah whosoeuer sheddeth mans blood Gen. 9.6 by man shall his blood bee shed Lastly our punishment by vtlary seemeth to be most auncient of the same beginning for take Bracttons description of vtlary and compare it with the words of Caesar and both with some passages of Scripture and you shall finde them agree very neere together Bracton thus describeth the forfeiture of vtlary Forisfacit patriam et regnum et exul efficitur Bracton et talem vocant Augli vt lagh et alio nomine vocari antiquitus solet Friendlesinan et sic videtur Forisfacere amicos Si quis cum eo communicauerit aliquid eadem paena pumendus est Caput gerit Lupinum And so foorth at large which Mr. Stanford thus briefly comprehendeth Stant L. 3. The out lawe forfeiteth his countrie his friends his peace his law his right and his possession which is true euerie way but to bee vnderstood according to the seuerall natures of vtlaries that are amongst vs. Now Caesar of the Druidae saith thus Caesar Si quis eorum decreto non stetit sacrficijs interdicunt Haec paena apud eos est grauissima Quibus ita est interdictum ij numero impiorum et sceleratorum habentur ab ijs omnes decedunt aditum eorum sermonemque diffugiunt ne quid ex contagione incommodi accipiant Neque ijs petentibus ius redditur neque honos vllus communicatur Conferre this with the senteÌ„ce pronounced against Cain Thou art cursed from the earth Genes 4. when thou tillist the ground it shall not yeeld her strength to thee a vagabond and a runnagate shalt thou be in the earth Thus he forfeited his Countrie and his possessioÌ„s the profits of his labour of his grouÌ„d his friendes and his peace And this is the nature of our vtlary vsed to this day in capitall offences but in lesser contempts more easye and tollerable Now of these thinges before described haue consequently followed all our proceedings aswell in Real as in personall actions for the proces of distresse in the parsonall was but the taking of pledges of the defendant for apparance and the processe by Cape in the Real was but the seising of the Land for a surety to the same prepose from whence also many other secundarie conclusions of reason haue necessarilye ensued as the returne and losse of Issues defaults conteÌ„pts forfeitures c. Further in our Chronicles wee reade of Lords tennants in the daies of Gorbonian the good Galfrid moÌ„ and of fealtie sworne to the Prince in the time of Elidurus the godly Pontic viruÌ„ which of necessitie were accompained with tenures seruices distresses and such like And thus much be spoken of the auncient visible footesteppes of the lawe of nature which were before Lucius Of which you may reade also in the learned discourse of the aboue named Sir Edward Cooke before the third Booke of his Reportes where he citeth the sentence of Caesar saying that the discipline of the Druidae was found out in Britannia and that we had some formes of proceeding from the Greek which may well bee but you see the grounds and beginnings are much more apparant to bee seene in the records of that
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„