the givers name called the Lawes of Hael Dha Further King Edward the first who totally subdued Wales in the Statute called Statutum Walliae where he changes many of their old Lawes by his words there makes it cleare that the Lawes of England and of Wales could not be the same for so there had been no change The words are The Lawes and Customes of those parts hitherto used we have caused to be recited before us and the Barons of our Realme which having diligently heard and fully understood as it is fit were laws worse then those there should be full understanding ere a change certaine of them by the counsell of our Barons foresaid we have blotted out certain we have suffered and certaine corrected b Stat. Walliae or of Rutl. 22 E. 1. Perhaps it was not thought fit after a new Conquest to make a thorough alteration of things too suddenly yet was this a long Statute and much of the Law of England imposed upon them by it The 27. of King Henry the 8. swept all clean That commands that the Lawes Ordinances and Statutes of this Realme of England for ever and none othr Lawes O rdinances nor Statutes shall be had used practised and executed in the said Country and Dominion of Wales c. c 27 H. 8. c. 26. The Saxons as M. Daniel made such a subversion of State as is seldome seen the new retained nothing of the former which held no other memory but that of its dissolution scarce a City Dwelling River Hill or Mountain which changed not names The distance made by the rage of war was so wide between the conquering and the conquered people that nothing either of Laws Rites or Customes came to passe over unto us from the Britains nor had our Ancestors any thing from them but their Countrey d Hist 9. But the Author of the patches to the Lawes of St Edward though in Geoffrey of Monmouths strain goes full up to King Brute himself of Geofferies begetting speaking of the weekly Husting of London sayes he which was builded a long while agoe like and after the manner and in memory of old great Troy and to this day it containeth in it selfe the Lawes Rights Dignities Liberties and Royall Customes of old great Troy e Ll. S. Ed. c. 35. c. which like the Phoenix lives in its ashes and here such is the kindnesse of some of our quaint Authors has overcome Greece in the grave being more fruitfull in noble Colonies then her Enemy so that it must be a very faire discent where the pedigree is brought downe from old great Troy As of old the Greek Lawes so since the German Nations have overflowne Europe now are the German Institutions every where received and in force sayes Grotius f De jure belli c. 133. As the Lombards Burgundians Franks Swevians and Vandalls and other the brothers and kinsmen of the Saxons seated themselves in Italy France and Spain and spread their Lawes where they over-ran upon no other Title but that of the Sword so did the Jutes Angles and Saxons plant themselves and the customes of their first homes here first as friends and allies invited in by the British King Vortigen having lands dwelling places given them to fight for the Countrey they make a league with the Picts the publike enemies destroying those whom they were called in to protect in which manner they setled themselves leaving none of those amongst them but such as were content with slavery Their owne Countrey-man venerable Bede borne 227. yeares after their landing tells us comparing them to the Chaldeans whom I choose to refer him to who would know more g Bede hist l. 1. c. 15. p. 59. their Lawes and Language though themselves have suffered by their owne blood by their fellow Tribes the Danes and Normans some of those calamities which they made others feel where time and age and corruption gnawing to which all things are subject have not made a little change continue in the maine to this day These Nations so powred out of Germany retaining the rites and terms of their own Countries all of the same manners and tongue It commeth to passe as the most knowing h Gloss 435. Col. 1. knight that there is so much consonancy betwixt us and the Germans French Italians Spaniards and Sicilians both in the Canon of the ancient lawes and in the names of Magistrates Officers and Ministers of State therefore as he goes on Let them brag that will of the antiquity of their municipal lawes their beginnings can be had no where else Germany it is meant is the common mother The terms of art of some of these Nations got as far as Constantinople amongst the Greeks where we may finde 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a Captain from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a throng 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 he that holds by knight service from buccella a morsel buccellarius is amongst the wise Goths of Spain thus used 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 homage 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is gelt rent tribute c. from the Saxon geld 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a bill scedule c. and many more which Meursius in his Graeco barbara has collected the most ancient laws of al these people are the salic laws nay of all laws now compiled obtaining These and the Franks who made them were of Germany so named from the River Sala in Frankenland not from Franiker as Ortelius would have it They were made in the third yeer of Pharamond king of the Germane Franks 105 yeers before Justinian the Emperour who published the Imperial Laws The Author where he has no Latin puts in his Franko-Germanic of the Latin fashion As William of Oangis in the yeer 420 the Franks began to use Laws and did dictate their Laws by four Princes of their Nation sala signifies in the Dutch an Hall as with us or Palace whence are called law salic manners-salic vassals salic which belong to the sale Hall or Palace and as yet is to be seen the salic book Salbuch in the German libraries like our Doomesday or Liber Agrarius here says another who tells us there of the Salian Franks the Authors of this law named so from the former river seated on both sides of the Main upon which stands Francford the head of the Nation i Boioar. hist l. 4.313 of whom and this Law is said before what the best Authors write In the same Salic Law are many words used in ours as Campio Forresta Forrestarius Sparuarius Marcha Veragelt which is our were gild c. These Customes went with Pharamond eight yeers after into France then after those of the western Gothes in Spain the Burgundian Laws the lawes called Alemaaic Boian and Frank other then the Salic were instituted by Thierry the first son of â—lodove who first became Christian corrected by Clothaire and Childebert and perfected by Dagobert After follow the Lombards who as they were a
admirable not at all the more unhappy for it I know no reason why the same words should be thought unhandsome in our law and elegant and beautiful in another and as laws which is noted if all the hast imaginable were made for a change could not in our daies arrive at that fulnesse and excellency to comprehend and redresse thousands of those wrongs which now we finde remedies for The decemviri imployed about the Tables thought they could have comprised all accidents they fell short in their account all the bookes in the world saies Bodin cannot comprehend every case which may happen for after all the additions possible it wil be found that perfection of lawes must be the labour of ages and that experience is the best and onely happy Lawgiver So would there be the same length of time required for the new termes Time is followed at the heeles by corruption and ere our descendents shall make up what we shall leave imperfect if our change be not disliked and changed by them they that shall invent the last terms perhaps without some key or other wil not be able to understand the first The length and change of time will make the next as obscure as these if we look upon our own language and not so far back as Robert of Gloucester and others of the most ancient English writers if Sir Geofry Chaucer and John of Lidgate be compared who calls him master and betwixt whom there are not many yeeres it may be seen how quickly it altered as since the raigne of King Henry the eight we know it has sufficiently changed again It was the observation of the illustrious Viscount that books writ in modern Tongues could not be long lived he expresses it in the term for bankrupts cito decocturos they would quickly break which was the reason why he caused that most excellent piece his Augmentation of Sciences to be translated into Latine c. So that I cannot yet finde why the antiquity of our termes should be a cause of change It is ridiculous to think otherwise The Lawyer must speak the words of the Law nor can the proces and forms of the bar be expressed in neat and fine language Cicero l. 1. de Orat. Orat. pro Caetin Gell. l. 20. c. 10. de voc ab ex jure manuÌ„ consertum Cicero himselfe is observed in matters of Law to speak like a Lawyer ordinarily using the terms Ennius does the same in those Pellitur e medio sapientia vi geritur res Spernitur orator bonus horridus miles amatur c. Nou ex jure manum consertum sed mage ferro Rem repetunt regnumque petunt vadunt solida vi * l. 16. c. 10. And in this Proletarius publicitus scutoque feroque c. And as no other Law can gain any thing of ours in reason as little can they gain of us in phrase if the stile be compared with the purity of the speech they are written in the stile of the Imperial laws with the purer Latin This I wil illustrate only with the designe to make it cleare that this homelinesse of ancient habit is not a rude fashion taken up alone by our Law I wil observe somewhat of the Civil Law out of the professors of it that we may see our Lawes onely have not been censured are not onely subject to censure Perinus in Justinians life runnes in a long invective against Tribonian as he is called the architect of the Pandects and of the whole Law whom out of Suidas he calls wicked impious a contemner of Religion far from Christianity a deceiver and fraudulent perswading the Emperour that he should be assumed like Enoch corrupt basely covetous so that the law lost much in the infamy of so wicked and pestilent an author Where he speaks of the Laws he saies Tribonian and his fellowes were like cruell Chiriergions who cut to the quicke and which he cites Budaeus for That they have left the Pandects rather curtailed then compendious fearing out of superstition dregs and things obsolete they have heaped up matter out of the drier volumes and drawn that which wil not quench any mans thirst So that as he goes on in the framing the Pandects you would rather think they slept then that they digested any thing rightly and compendiously Justinian in the Proem to his Institutions supposes an huge confusion before callâ— this a desperate worke and walking in the middest of the deep The body of it then was confused of infinite extent sayes the Glosse The Code sayes Sis Th. Ridlye a Civilian is a barbarous Thracian phrase latinised such as never any mean Latinist spake for themethod it is rude unskilfull where it departeth from the Digests yet the knowledge of it is more expedient then the knowledge of the Digests because it determineth neteers in daily use of life f View of the Civil and Eccles law The Digest is said to differ but little from the best Romane speech but what it has in words it wants in substance as the same Knight the learning of it stands in discussing subtile questions and enumeration of opinions in which there is more wit then profit Againe this Digest or Pandect as an old Glosse strangely a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 totum * c. Pandectarum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 doctrina which is said to be drawn out of 150000. or as others 300000. verses of the old Law indigested and abolished needed exposition and amendment The Compilers were not so quicksighted but that sundry antinomies as this Knight and Budaeus or contrary laws past them they were too subtily Writ and needed explaining besides in the Digest every case falling out in common use of life was not decided for it is enough that Lawes look upon that which is likely most often to happen nor as our Knight was it possible every moment new matter fals out for which former Lawes made no provision which was the reason why the Code was set forth and why the Athenticks or Novelles followed Being the Princes resolution of doubts confusedâ—y put out as the Civilians abroad confesse g V. Lex Ju. Civ ve bo Novellae The Feudes as the same knight were drawn partly out of the Civil Law partly out of the Customes of Millain but without either form or order h Ib. View 69. before the Cornelian Law of Jurisdiction of the Praetors they were wont led away wich covetousnesse or ambition out of favour or spight variously to give judgement Changing and altering the laws they had set forth in writing The Cornelian law commanded i Dio. Cuss l. 36. 1 That in the entry to their office They should publish what law they would use and observe it I will not say there is any such incertainty now yet where there are so many Doctors interpreting the Text so many Comments such multituddes again interpreting them without a miracle there cannot but be
is to buy by the lump tenuta seisin venter a woman with childe or as Alciate a posthumus fusiones publique Functions Whoso shall turn over the Laws of the Frankes Lombards Boiorians and other of the Teutonick Nations he will meet Mormoes and Goblins formidable indeed such as the most knowing glossaries must be contented to recite only or wisely to passe by in sacred silence which yet will be read by those who admire not themselves and their own age too much who will allow in some proportion both wisdom and civility to their forefathers and are curious to be satisfied how they lead their lives upon what policie and order the Empire of the German Franks Lombards rose and moved for however governments may begin Justice good lawes assure them give them vigour and continuance lasting violence had been a fire which suddenly would have burnt their Trophies these German Conquerours how fierce soever they seem in their first appearance of all which might be said which is related of Mezentius Dextra mihi deus c. Or the Quadi a part in that Eductis mucronibus quos pro numine colebant the sword was their deity spent the yeers of their entrance into their Provinces to compose mindes their first peace and rest from the turmoils of war was ever dedicated to the polishing and smoothing of those foundations which else laid with too hasty and too rough an hand would have fallen alone Augustus was more happy in his moderation then in his victories it might be thought he subdued his Country to preserve it his peace was so sweetned by the equity and clemency of his laws that all the calamities of the triumvirate and its proscriptions were forgotten no tears were left but such as the whole world powred out to his memory There is its honour due to antiquity yet there may be met with in the lawes of these people though they seem what Du Bartas speakes of Marots verse torne Monuments and age worne Images that policy and excellency of constitution which if we will not imitate perhaps we can never exceed It is observed for the honour of our English that an Earle of Arundel in his travels to Italy and the Lord William Howard in his Government of Calice although they understood other languages would not speak to any stranger but in their English And that Cardinal Woolsey in his French Embassie would not suffer his attendance to speak any tongue else to the French And I know not why our English where it is more pure and lesse corrupt where it is a mother tongue and the best Dialect of a mother tongue should not have the esteem it is worthy of It was made none of the least of venerable Bede's praises that he was learned in it A great man before mentioned rather transported with choller against som of the Profession and indirectly I thinke then out of his own judgement is very angry at the Law which he says cannot passe the Seas It were wonderful if it shou'd who looks that neighbourhood alone should make Nations like the same things I have shewn already what great agreement there is betwixt the French and us enough to make it evident they and we had but one stock in Constitutions more ancient then the Civill Law there and it takes off nothing though our Law would not be known in the Courts at Paris This Author grants no man he sayes can deny it it is a sacred both Thing and Title our professors wil not envy the learning of Brissonius his Lexicon or his formulae so much praised and it is confessed we cannot shew any Terms of law like them yet are ours to as much purpose they interpret the words of art of our homebred Lawes and I cannot tell what is to be required more All men may know that as there have been additionary Laws since the Saxons so have there necessarily been additionary termes since which according to the custome of the times when the Law began to speak French were French and when they began as good perhaps and as pure French as any then spoken The leagues and agreements concerning the Sea betwixt King Edward the first and other Princes shew what the old French was by these words soffrera souccours resceipts Pees Trewes subgitz forspris nadgairts c. x D. Seld. Ma. Claeus 267 276. The Lord of Argentons History much later manifests what the language was and how it has changed These terms are so enterwoven as the Lord Coke into the Lawes they cannot possibly be changed I wil appeal to any man who understands the modern French for many of them are yet retained by it whether any words can more aply hit the sense which these signifie there is a supposition where these objections lie that if the great Lawyers abroad should come hither much amazed they would stand at our voucher cited for a big word like to tear the ear but unluckily brought in it is yet in the French advocare to vouch call in aide in a suit and certainly was understood by some of the great Lawyers Rigaude and Bignon being such as had the word bene antique indeed would not have been amazed at it They were not confined within the knowledge of their own age onely what is much to Bignon's honour Sir Hen. Spelman acknowledges himselfe owing to him for many things in his Glossary Garrantie is the same yet with our Warranty Pleviner to plevin give surety saisine is yet seifin rebutter to repell as the heir with us is repelled by the Warranty of his ancestors Larcin is theft fellony robbery fee demain or domain prescription Escbet rent as we use them nampt is our naam halfe withernam a distresse briga with which by this author in another place the professours of our Lawes are reproached and have the stile of his barbarians has been continued amongst them ever since Edw. the 3. before which it was but rarely used yet is in the modern French viz. brigue for it signifying contention or wrangling The onely man abroad who may seem an adversary is Hotomanne a Civilian very learned but I believe not at all in our laws a man of a peevish heady temper who writ against his own State and fled for it yet is he not so much an enemy to the Laws of England as to Litleton's tenures the book so called which very probably he never understood in his Comentary of the feudall word in the word feudum he writes thus Stephane Pasquier a man of an excellent wit c. gave me an English Litleton in which the Laws of the English feuds are discoursed written so rudely absurdly and without method that it appeareth easily to be true which Polydore Virgil in the English History writes That foolishnesse in that book contends with malice and the study to calumniate Here is his own judgement seconded with the censure of that uncleane beast Polydore whofreely indeed as is said railes in that book against
the Law yet no where in it I think once naming our most reverend Judge Litleton He cals the Laws in just and the Lawyers or interpreters of them ignorant speaking of those of the time of William the 1. upon a supposition that the most of the Lawes were Normanne He and his book are said to be of great account by Dr. Cowel in as much esteem with the students of the Common law as Justinians Justitutes are with the Civilians saies the famous Clarencieux The Lord Coke sayes This is as absolute a booke and as free from errour as ever was writ of humane learning y Pres upon Littlet r. 2.67 r. 10. Epist according to the Judgement of a Court before Litletons word wil passe every where ipse dixit carries things as Master Fulbec Litleton is not the name of a Lawyer but of the Law it selfe more then can be said of any Civilian one or other Dr. Cowel blames his Civilians much that shey were not onely guests and strangers but infants in their own Commonwealth that the most know as little of our Law as the common people and I cannot imagine how by a sight of Litleton Hotoman should know much it is not unreasonable notwithstanding all his learning to suppose with Littleton alone he did not understand Litsleton it would be taken as justly it might either for foolishnesse or malice indeed the greatest possible for the highest impudence if any man so much a stranger to the terms and Language at the first sight meerly by guesse should as slightly condemne the Pandects full of contradictions and needing exposition and amendment as is before shewn out of the Civilians themselves whereas Littleton is as fundamentall as any Law can be and every sentence of his is a principle Nor can any man but wonder at the expression of malice and study to calumniate the book through by which we may see how it is understood being onely a bare collection of special cases under their titles or heads authentick and binding because it is made and composed partly of the customes of the ages before partly of the judgements of Courts and of the Statute lawes without any controversie with any man without any reflexion upon any other law upon any mans person or works saving that once he saies he had heard say There was one Judge Richel who setled an estate intaile with perpetuall remainders with that clause of perpetuities since used but against law that upon alienation of the eldest sonne c. his estate should cease c. meerly ayming at the publike good which makes me thinke here must either be a great mistake in the sense or of the book it selfe Litleton then was not Litleton now The uneven ruggednesse of the French wil not suffer any man to be eloquent Laws as Cicero ought to be be deare unto us and to be prised not for the words but for the publike profit and the wisdome of the Lawgiver Yet is not the stile of Litleton rude but plain as the best French then was plain enough neither neat nor quick as will appeare by the Lord of Argentons stile noted before who lived in our Judges age and writ then most befitting a Judge and the gravity of the subject To the absurdity of the writing part of the invective charged in the slander which is true as is shewn from testimonies of the side of the old glosses I wil reply but this it should have shewn how and where otherwise this is a generall charge which has nothing in it but the malignancy of an enemy from whose rash and unjust censure the happy memory of our Judge may justly appeale to those who know him It is a childish impotency of the mind out of vainglory to calumniate illustrious personages farre enough either from honesty or discretion The haughtinesse of Pompey to raigne alone is with the most nor is it fair to bequarrel and hate all other Nations because they drink not the Loire or Rosne or submit not to I know not what universality as if Alexanders world were returned again not to be ruled but by one Sun What concludes here and makes up the aggravation is extended farther by others and made a cavil it is no more against the Laws That our Laws want method Method never yet so much as a pretence to abolish laws How easily the Pandects may be matched for method I shall demonstrate by the order of the Common law of England After the Curiate laws of Romulus those of Numa concerning Religion the laws of the other Kings all taken into the books of Papyrius and therefore called the Civil Papyrian Laws the twelve Tables followed then the Flavian Helian and Hortensian the Honorary Law of the Praetor the lawes of the people called Plebiscita the decrees of the Senate called Senatusconsulta the law of the Magistrates and customes the laws of the Princes frō the law Royall the opinions of innumerable Lawyers many of which are recited by the second Law of the original of the Law their volumes were huge saies the Emperour z Proaem Instit 5. There were as the glosse three hundred thousand Verses Laws or answers two thousand books and many other Laws so confused so infinitely extended they were not to be shut up in the capaciousnesse of humane nature Out of all these were the Pandects composed and digested which are wel digested but as is said the Code and the Authenticks are not How much more easily might the Common law be ranged into an exact method may quickly be found not being composed of any such bulk not drawn out of any thousands of such answers and books inclosed in a dozen or two of small volumes exceeded in the quantity by the present Imperial lawes hundreds of times over the foundations of it as of all just and civil Lawes are the lawes of God of nature and reason and of Nations as Dr. Cowel Our Statutes and Customes are derived as all just laws else and consentaneous to reason from the Law of nature and of Nations a Inst jur Angl. 25. And again The lawes of England as others over the Christian world are far enough off from the civil Imperial law yet are they tempered seasoned with the equity of it b Praef. ad Inst In his Epistle dedicatory before the Institutions They are not far enough off * v. Chap. 2.50 here as very probably some of these Imperial lawes might come from Rome to the Saxons with their Religion There he speaks thus After I bad spent some yeeres in the comparison of these lawes viz. the Common and Imperial laws I found the same foundations in them both the same definitions and divisions of things rules plainly consentaneous neer the same constitutiom the difference onely being in the Ideome and method Our Common law is nothing but a mixture of the Roman and Feudal laws and in his Epistle to the Reader before his Interpreter he sayes He has in
of old Greece or Rome more renowned for Philosophy or valour then for this piety it is notorious how false that charge of breach of the Laws against Socrates was They who sentenced him erected a Socrates in brasse in the most famous place of the City a piece of Lysippus his workmanship p Diog. lac Here though Caesar had won the field Caeto was the Conquerour and might well say He had ever been more puissant then Caesar in right and justice q Plut in catone utic Plut in A. ristid 623. and that his life was invincible For this reason had Aristides that most illustrious title the just a title given to that late victorious King Lewis the 13 of France if titles are specious from subdued Nations as from Crete Numidis Africa Asia Dacia c. How more illustrious is that by which is signifyed not the Conquest of men but of injustice of that which is the enemy of men every where Bastards as Cardan would have it are not therefore wicked but such says the illustrious Scaliger which goe false counter and beyond what the Laws command r Exerc. 265. Those of Crotone in the upper Calabre protest they would sooner die then mixing with the Bruty those of the lower change into strange rights manners and Laws Å¿ Liv. l. 24. It is memorable what a Persian Collonel speaks to Themistoeles of Lawes Stranger my friend says he The Laws and Customes of men are different some men esteem one thing honest some another but it is very bonest that every man â—â—ep and observe those of his own Country t Plut. in Themist We are the most ingrateful of all men for those benefits we receive from our Laws if we be not zealous for them if we do not strive with all the world in that lawful glory of obeying Laws we may call the Law of the land most sacred as reasonably no doubt as Justinian calls his so I will shew how this and all additions of dignity else are due to it And now that we may not be ashamed of obedience that we may not so much unman our selves to bespeak and worship an unknown Goddesse though as short of what should be as much imperfect as the Fuller earth and sea are crowded into a Globe I will say shorter so far am I from promising and I believe he that makes the next sally may be short for it must be a great hazard a great adventure to praise those things which no men could ever dispraise if he that writ Trajanes Panegyrick could not do him full right as I cannot think he did what can be said of these Lawes which had more then twenty Trajans for their founders with their Senates of their worth that if after the old trick you should call the Gods in nothing could be got by the voucher I say that we may not be ashamed of our obedience to such Laws I will show what they are and which is the best demonstration I will shew what this tree is by the fruit The Law of England is that which is called Common Law of England The Common Law explained and declared by judicial records and supplyed where the plainness of it cannot reach the injustice and deceits of men practised in the later more crafty and wicked ages by that Law which is called Statute Law u 1. Inst 11 besides which there are reasonable customs c. The Common Law excelleth the Statute Laws and may controle Statutes w Hub. l. 5. E. 4 40.4 Inst 42.3 Inst 13.77 2. Inst 526.588.518.11.6 7 8. If as the Lord Cooke they be against common right or reason repugnant or impossible x Sir l. Dav. Pref. r. 8.118 Dr. Cowel a Civilian yet very knowing in the Common Law sayes It is derived from the Law of nature and of Nations as well as any other Law whatsoever consentaneous to Justice and reason y Inst Jur. Anglic. 25. Dav. rep 30. Postrat As Moyle We rule the Law according to the ancient course z 33. H. 6.8 And as Ashton there a f. 9. Where it hath been the use of all times to wage Law and no other way this proveth in a manner a positive Law for all our Law is guided by Vse or Statute And Prisot where Ashton says this as a positive Law says it cannot be for there cannot be a positive Law but such as is judged or made by Statute In the same Book Fortescue says The Law is as I have said and ever was since the Law began though the reason be not ready in memory yet by study and labour a man may finde it b E. 5. and Markham a chiefe Justice c f 24 4.41 It is good for us to do according to the use before this time and not to keep one day one way for one party and and another day the contrary for the other party and so the former presidents be sufficient for us c. And Ascue Such a Charter hath been allowable in the time of our predecessors who were as sage and learned as we be d 37. H 6.22 4 Inst 165 Dact. 17. all Commissions of Justice use to run according to Law and Custome of England as of Oyer and Terminer of Goal delivery of the peace c. The Writs run To take that Assize or do that c. according to Law and custome e Nat. Brev 186.118 c. there is Custome of the manner f Na. B. 3. Custome of the City g ibid. 22. as Sir Iohn Davies in his Preface to his Reports long experience and many tryals of what was best for the Commonwealth begot the Common Law This Law as the Spartane Law and part of the Roman Law in imitation of them is said to be unwritten and preserved in the memory of the people yet is there little of it if there be any little but may be found in the book Cases the Romanes called their unwritten Law Custome Custome so they approved by the manners of those who use it obtaineth the force of a Law written h Just Inst L. 〈◊〉 2. and again without writing that becometh a Law which use hath approved For continual manners approved by the consent of those who use them imitate Law i Vbi sup this is matter of fact and consisteth in use and practise onely nor can it be created by Charter or Parliament for as the same Sir Iohn Davies k Vbi sup when a reasonable act done is found agreeable to the nature of a people who use it and practise it again by iteration it becometh Law and as he goes on this custumary law is the most perfect and most excellent every man in reason will grant this to make and preserve a Commonwealth For lawes made still he speaks either by Edicts of Princes or Councels of estates are imposed upon the subject before any tryall made whether the same be fit and agreeable to
without triall justice shall not be sold nor deferred c. The observation of these Lawes was a condition of Peace which ever appeased the antient distempers and cemented what was loose and dis-joynted in the great body The Lawes toe of St. Edward are inserted into the oath of the Kings of England usually taken at their Coronations which were not onely superfluous and abundant but an impious vanity if there were no such lawes any where after the solemnity of this religious and sacred bond to be observed The manner of taking the Oath as we find is this The Archbishop asks the King VVhether he be willing to take the Oath usually taken by his Predecessors and whether the Lawes and Gustomes by the antient just and devout Kings granted to the people of England with the confirmation of his Oath he will grant and keep to the same people and especially the Lawes Customes and Liberties by the glorious King Edward to the Clergie and people granted d Ex libro regali After he is led to the high Altar where he swears to observe them c. Further so farre are some from allowing our Lawes to be Norman that they are of opinion the Normans received theirs from us as they most of their Customes being so derived as William of Rovel in his Preface to his Commentary upon the grand Customary Edward the Confessor being a long while in Normandy gave Lawes to the Normans and made the Customes of England and Normandy e D. Spel. gloss v. jurata which if it were not so nothing is lost by it nor does it make any of these truths suspitious * Sup. 55. that so few of these Lawes are come to our hands of which something is said before and of their Book-Cases or Judgments none at all There never could be any such Volumes of them heard of as are fancied besides the honest simplicity of the first ages and the strictnesse of rules spoke of writings and deeds either to pass Lands or Priviledges were not in use till King VVithred neer 700. years after our Saviour that King being so illiterate that he could not write his name as himself confesses f Concil Sax. 198 King Aelfred little lesse then two hundred years after this complaines of the ignorance then that there were scarcely any on this side Humber who could understand the ordinary common prayers or translate a piece of Latine into English but in the beginning of his reign on the South of the Thames he remembred not a man who could have done it g Ibid. 379 Epist Aelfredi ad Walsagepiscep and although this King of sacred memory if perhaps as I cannot thinke he was not the Solon and Arthitect of our Saxon English order yet a great restorer of it built gloriously upon the frame he found yet these were lesse then beginnings would likely have been where such a Prince had been the Workman he could not intend them the Danes like a fatall whirlewinde tearing up root and branch every where ruining had long before broke into the Land which two hundred yeers together they miserably harassed with whom he fought fifty six battells and as may be imagined had not leisure to performe the duties of peace but in his armes sometime hid in the poore shed of an Herdsman as the most knowing Knight a King without a Kingdome a Prince without people so that hee could not thinke of his Lawes h Concil 378. and although there was some breathing and the storm had some intermission some calmes were in the two hundred yeeres some in his reign yet such ravage and spoil had these barbarous theeves made and so universall might the Confusions and Disorders be we may conceive it would be the labour of no short peace to restore things fallen or shaken to their first condition without making any the least progression this being not to be done till the corruptions which warre licentiousnesse and carelesse negligence have bred in the parts most sound are plucked up and the weeds throwne out which must be the worke of time The proceedings too of the Saxons our Ancestors as M. Lambard in judgement was de plane and without solennity enough to cleare this though the Saxon Lawes then were enough for the Commonwealth yet they had no great extent whatsoever unto S. Edward gathered out of the Lawes of those who followed this King and saw more quiet dayes or out of the whole body of the Saxon Lawes could not reach farre but not out of any defect in the Law it selfe then the cause why the law runs in a larger channell and spreads into more veines now is not any artifice or injust dealing of those who practice it but the improvement of estates by good husbandry much traffique whence contracts are more frequent As Sir John Davies there is more Luxury and excesse in the world more force deceit and oppression more covetousnesse and malice breach of peace and trust which as they gather strength and multiply so must the laws there is a necessity that as these mischiefs increase there should be supplements of laws to meet with them Mr. Daniel observes of the Assize of Clarendon long after the Saxons that it consisted as it does of very few points and that the multitude of actions which followed in succeeding times grew out of new transgressions c. When the Romans were little better then shepheards and herdsmen it is said a few Ivory tables contained their laws after they came to be Lords of the world thousands of Books were writ of the Romans Civil Law Albericus Gentilis justly reprehends Ludovicus Vives who maintained as he that all things might be finished by a few laws as the same Mr. Lambard speaking of the Law of England positive or written Law neither is nor can be made such a perfect rule as that a man may thereby truly squâ—e out justice in al cases which may happen for written lawes must needs be made in generality and grounded upon that which happeneth for the most part because no wisdome of man can foresee every thing in particularity which experience and time doth beget i Archeior 76 77. There is a curse of peace the highest prosperity has its dangers there can be no safety in it the rich man is more infirm more unsound then the poore pride and malicious contention are diseases he is seldom free from it is well said of wicked men and their injustice there is need of many laws to bridle them of many Officers to execute of many lawyers to interpret those laws We know all laws come not in by heaps but as time corrupts things and new wrongs and offences are discovered by the same degrees Thus the Sumptuary laws amongst the Romans came in the Fabian of Plagiaries the Julian of publike or private force de ambitu and the rest all our Statute laws which are remedying So must it be and so it has been in all Commonwealths of