by Sir Edward Coke (m) 4. Instit p. 12.1 Inst p. 69.2 Inst 7 8. Preface to ninth Report beyond all bounds of Truth and Modesty as also the great mistake of our learned judicious Antiquary (n) Archaion p. 257. Mr. Lambard and (o) Doderidge of the Antiquity of Parliaments others of great note who affirm that the true original Title and Right of all our ancient Cities and Burroughs electing and sending Burgesses and Citizens to our Parliaments is Prescription time out of mind long before the Conquest it being a Privilege they actually and of right enjoyed in Edward the Confessor's time or before and exercised ever since Indeed the whole series of the great Councils in the Saxon Danish and Norman Kings Reigns to the Forty Ninth of Henry the Third evince the contrary As to the Wages of the Knights Citizens and Burgesses The Wages of Knights Citizens and Burgesses it being a thing now obsolete though not out of force by those that would claim them I shall only note that the first Writ for them is coeval with our Kings first Writs of Summons and the reason given in the Writ is That whereas the King had summoned two Knights c. and they had stayed (p) Ac iidem Milites moram diuturniorem quam credebant traxerint ibidem propter quod non modicas fecerint expensas Cl. 49 H. 3. m. 10. dorso longer than they believed they should do by reason of which they had been at no small Expence therefore the King appoints the Sheriff by the counsel of Four lawful Knights to provide for the Two Knights of the Shire their reasonable Expences The Writ of the 28 Ed. 1. (q) Rot. Claus 28 E. 1. m. 12. dorso commands that they have rationabiles expensas suas in veniendo ad nos ibidem morando inde ad propria redeundo their reasonable Expences in coming to the King staying there and returning to their homes The like we find for the Citizens and Burgesses in the 1 Ed. 2. there was Four Shillings a day allowed for every Knight and Two Shillings for every Citizen and Burgess Mr. Prynne (r) Brief Parliamentary Writs part 4. p. 4. gives many good reasons why these Wages were allowed some of which I shall recite As first that all Laws allow Sallaries for Services and those being public Servants and Representatives or Atturneys for the Counties Cities Burroughs to consult about the great and arduous Affairs necessary Defence Preservation and Wellfare of the King and Kingdom and theirs for and by whom they were intrusted it is reason as they receive the benefit of their good Service in giving their good Advice towards the redressing of Grievances and making wholsom Laws that they should have allowed their necessary Expences Secondly It appears in ancient times there was no such ambition to be Parliament-men as of late but the Persons elected thought it a burthen therefore lest being elected they should neglect to repair to the Convention they had Sureties called Manucaptors for their Appearance Thirdly This obliged the Counties Cities and Burroughs to be carefuller in electing the discreetest ablest fittest and most laborious persons who would speediest and best dispatch all Public business which occasioned the shortness of Sessions Fourthly It begat a greater confidence correspondence and dependance betwixt the Electors and Elected Fifthly It kept poor petty Burroughs unable to defray the Expences of their Burgesses from electing or sending Members to our Parliaments and oblig'd some to Petition to be eased of the Charge whereby the number of Burgesses was scarce half so many and Parliaments were more expeditious in Councils Aids Motions and their Acts and Debates and so the Sessions were much shortned the Elections were then fairer and for the most part unquestionable the Commons House less unwieldy Privileges of Parliament less enlarged beyond the ancient Standard abuses in Elections Returns and Contests about them by reason of the Mercenary and Precarious Voices less troublesom whereas now in every new Parliament a great part of the time is spent in the regulating Elections But Mr. Prynne hints little upon one great cause of that usage which was that in Burroughs as well as Cities most what the persons elected were the Inhabitants in the Cities and Burroughs Merchants Tradesmen or the most popular Burghers as will appear to whoever peruseth the Chronological Catalogue Mr. Prynne (s) P. 900. to 1072. with no small pains hath collected into his Fourth Part of his Brief Register where I believe one can pitch upon no City of Burrough from the time of Ed. 1. to the 12 Ed. 4. but he will find by the very names that they were such as I have mentioned I am well assured of it for Yorkshire and particularly for the City of York they being generally such as we find in the List of their Mayors Beverly hath Four of the Sirnames of good Families and Kingstone upon Hull hath (t) 8 E. 3. William a S. Pole from whom the great Family of Suffolk sprung but it is well known he was a Merchant there Now since every part of the Country abounds with Gentlemen of Plentiful Fortunes Why wages not now paid to Knights Citizens and Burgesses Generous Education such as are versed in Affairs of their Country as Justices of the Peace Deputy Lieutenants and have been Sheriffs Members of Parliament and born Publick Offices there can be no expectation or Fear that those that are Candidates for Parliament Men for Burroughs will expect any Sallary or Reward so long as they chuse them There being generally Competitors who instead of expecting Wages are generally obliged now to vast expences to purchase the Votesâ— of the Electors so that now the Honourable House of Commons is quite another thing than what it was wont to be in elder Ages when they were summoned principally to give Assent to what the King and the Lords did to assent to Aids and Taxes and apportion their own Taxes bring up their Petitions concerning Grievances to be redressed by the King and his Council or the King and Lords and draw up Impeachments against great Offenders and such like Having thus considered the Writs of Summons to the Members of the House of Commons before Henry the Seventh's time in all its branches Copy of VVrits of Summons now used to the Sheriffs I shall give a Transcript of the Writ of Summons used at this day whereby may be seen how much of the old form is continued which I shall insert in Latin and English that the Emphasis of the Original may not be lost REX Vicecomiti Salutem c. Quia de advisamento assensu Concilii nostri pro quibusdam arduis urgentibus negotiis nos statum defensionem Regni nostri Angliae Ecclesiae Anglicanae concernentibus quoddam Parliamentum nostrum apud c. die c. proxime futuro teneri ordinavimus ibidem cum Praelatis
end but that he might fit man for those Chains and Fetters he hath provided for him depriving him of the greatest glory and happiness that can be attributed to him of Gentleness and Benevolence which is conspicuous in man's Nature and on the contrary making him the only Creature that out of the malignity of his own Nature and the base fear he makes inseparable from it should be obliged for his own benefit and the defence of his Rapine to worry and destroy all of his own kind till they all became yoaked by Covenant of his own contriving never yet entered into by any one man or in Nature possible to be entred into as in due place I shall make appear Supposing however by the Law of Nature every man may defend himself and annoy those whom he hath power over (b) Review of observations p. 20 21. Whatever the state of Nature was yet Government is necessary yet how much more eligible is it to part with that Right and yet to do nothing contrary to Nature when Reason tells us we shall obtain a more excellent good the benefit of Peace and Prosperity in Society which together with Safety and Plenty are what Government aims at The People finding by reason that the good they wanted was not attainable without a Common Protector to administer Justice equally amongst them and the sense of the miseries that would befal them sor want of this made their Routs become Societies The Salus populi in the Constitution of Government being the prime end of it as most agreeable with the joynt Interest of Rulers and People The multitude therefore that do not consider the Reason that made all People commit themselves The reasons why all must quit the state of Nature to submit to Government their lives and fortunes to the trust of their Rulers ought to be convinced that their giving up their Right of defending themselves and subjecting them to Government and restraining their own Arbitrary Wills and yielding themselves to the Conduct of their lawful Superiors will conduce most to the obtaining of that most excellent good the benefit of Peace and Society every one being in less danger of mischief from the rapacious and bloody minded living in Society and under the Protection of the Government than where every one might follow his own Inclinations This also being the chiefest preservation from that Misery and Confusion which Sedition and Rebellion generally blanched with the abused names of Salus populi have brought many Nations to so the Judicious Chancellor (c) De laudibus LL. Angliae c. 14. Fortescue saith that no Nation by its own Consent was incorporated into a Kingdom but that thereby they might Government necessary for Preservation with more safety than before maintain themselves and enjoy their goods from such misfortunes and losses as they stood in fear of Therefore the old (d) Adversus Mathematicos lib. 2. Stobaei Serm. 42. Persians saith Sextus Empiricus for five days together after the death of their King permitted the People to live Lawless that after the Experience of the Slaughter Rapine and other Outrages committed in that short interval they might learn to hold the Government in more esteem Self-preservation and an ardent desire of happiness saith a (w) Nalson Common Interest learned Author are the two Poles upon which all our Natural and Rational desire and aversions move These are the Tutelars and Inseparable Companions of Mankind through all the vicissitudes of Life These are the potentest incentments to Society and Government which not only allure but necessitate the Congress Combination and Cement of Confederacies in Societies for the mutual Preservation and Peaceable Possession of that Happiness all do covet This implanted Love to our selves made all Mortals exercise their best faculties to defend and ensure themselves against every thing they could foresee or fear would be capable of disturbing their felicity the peaceable fruition of which was the upshot of all their desires and appetites which was no ways so likely to be effected as by Union in Government For to be rich and not able to defend our wealth is to expose our selves as a prey and to be safe and poor is to be securely miserable both which are avoided by the benefit of Government Furthermore The Common People not to be ordered without Government if we consider the nature of the common people which make up the gross body we shall find an absolute necessity of Government For as the Orator (x) Cicero pro Planeio observes in the multitude is a great variety and change of opinions they are as unconstant as the weather nothing being so familiar with them as the change of their affections being not led by choice and wisdom to judge of things sed impetu quadam temeritate without Council Reason Discrimination (y) Sallust ad Casarem or Diligence to search the Causes and forecast the Event of things by custom rather than judgment following one anothers sentiments as to their short-sightedness seems most eligible Their Wills and Appetites being no less various than their features and countenances Their actions and designs turning to as divers ends as the desires that guide them are divers so that it were impossible they should continue long together in society and peace or enjoy the benefits desired if there were not some strong tye which holding them united together should draw them all along to the same end When there is no (z) Cum nec Imperii majestas ulla nec Magistratuum aut Curatorum est Imperium Bodinus de Repub. l. 4. c. 1. Government Against Anarchy that which is left is known by the name of Anarchy which is described by Bodinus to be where there is no Majesty of Empire nor power of command in Magistrates or subordinate Officers no form of a City none found to command or obey Of all Governments continues he Tyranny is the worst but of all Tyrannies Omnium deterrima plebis impotentissima potestas ex his tamen omnibus nihil Anarchiae magis pestiferum Idem that of Many is most pernicious and the impotent power of the people is the worst yet Anarchy is the most pestiferous of all This indeed dissolves all into the first confused Chaos where is nothing of order but a jumble of jarring parts every one justiling other out of its place Imagine a person placed upon such an Hill that he might see below him a confus'd multitude various in their Interests and Appetites let loose to the fiery bent of their wills He would be amazed to hear the boisterous clamors and see the strange turmoils and tempestuous tossings of that crowd the desultory actions and all the pageantry of Garboiles before the last down-right counter-scufflle which the sage wisdom of one man if he might be heard would be able to compose Even so it is in Anarchy or whereever the Peoples unbridled will governs (a)
People onely they were of use being the Authors that all things might be reduced to the Power of the People whom they wrought upon by their Suasives to place or displace Magistrates or to enlarge or circumscribe their Power Therefore he scarce allows the (u) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Id. l. 5. c. 5. Name of Government to this kind of Republic because where the Laws have not Authority there is no Commonwealth for that these Demagogues making the Mobile Lord over the Laws and constantly raising Factions against the Rich Civitate ex una duas faciant of one City or Society made two So that in that Contest mostly an Oligarchy prevailed and by the petulancy of the Demagogues who led the People by Herds pretending as it was their Office (w) Neminem plebem injuria afficere that none should injure the People they exasperated the Nobility to subvert the Government or having got a powerful Ascendant usurped it themselves as the Philosopher instanceth in the Islands of Chios and Rhodes in the Cities of Heraclea of Pontus in the Colonies of the Athenians at Megaris the Nobles being abused and banished righted themselves by Arms and obtained the Government and Thrasymachus did the like at Cuma These Demagogues among the Grecians the Ephori among the Lacedemonians and the Tribunes of the People among the Romans are often compared as Officers of the same kind chosen to support the Peoples Interests The Philosopher gives us an account how the Demagogues comported themselves at the places before-named of which number he saith were Pericles Cilon Hyperbolus Lycurgus Hyperides Demosthenes Concerning the Ephori Of the Ephori (x) Saepe valde pauperes accidit esse in hoc Magistratu qui propter paupertatem sunt venales Polit. lib. 2. c. 7. Aristotle saith That among the Lacedemonians they had the greatest Power and being chosen by the People it often hapned that very poor men obtained the Office who by reason of their poverty were mercenary as he instanceth in the Andrici where they being corrupted with Money lost the City He further adds That though these were chosen by the ignorant Populace and often were men very unfit for their Office yet they had Judgment in Capital matters and did not judge in Cases of Death or Ignominy by written Laws but arbitrarily so that the very Kings of Sparta were forced to observe caress and reverence them As to the Tribunes of Rome The Tribunes of Rome they caused many grievous Troubles about the Agrarian Laws Sp. Cassius being the first according to Valerius that raised those Disputes and was slain by his Father though Livy and Dionysius say it was Licinius Stolo and after many years Q. Flaminius put the same in execution the Senate being against it So Gracchus Tiberius Titius c. did upon the same account raise great Commotions This was for the taking the ancient Possessions from the Rich and distributing them among the Poor Therefore (y) Giphan Comment in c. 7. lib. 2. Polit. Cicero saith It was a pleasant thing to the People for that they were thereby supported without Labour but the good Citizens resisted it because it would extinguish Industry and exhaust the Treasury and inure the People to Sloth From all which we may conclude That Democracy in its Constitution is onely fitted for small Principalities and in it neither Industry or worthy Persons can have Encouragement How obnoxious it is to Factions or must have a mixture of other Governments to support it in being headed by some few popular Persons or must have a shadow of Monarchy in the ruling Demagogues Ephori or Tribunes otherwise it cannot subsist This leads me to the Fifth Argument of the Philosopher against Democracy Democracy least durable That it was never found to be of any long continuance For (z) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit. lib. 6. c. 4. he saith That all Tyrannical Constitutions are Popular And it is well known That of all Governments what is Tyrannical is the most short-lived Liberty being the End and Scope pretended according to the Fundamental Constitution of Democracy (a) Vicissim parere imperare to Obey and Rule by Turns the sweetness of Command induceth them that have once obtained it to continue it and the Slavery of obeying such Fellows and Companions continually provokes others to cast off the Yoke So that from hence Jars and Feuds shatter the Government in pieces Besides the unwieldy Body of the People seldom continue long in one mind nor can transact things without delegation of Power to some few by all which their instability is discovered and the shortness of their continuance shews the feeble and impotent Principles they are founded upon For where ever it hath had any duration it hath not been from its intrinsick adapture but from the mixture of other Forms in their kinds more durable Democracy being in it self such a Rolling-ground that nothing stable can be built upon it It is not to be denied Where Aristotle allows of Democracy that Aristotle in some Cases allows of Democracy but it is where the (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Polit. lib. 6. c. 4. Multitudes live by Husbandry Pasture or Feeding of Cattel For these being continually employed have not much publick Business nor leisure to attend the Assemblies it being more pleasant and profitable for them to mind their private Affairs than to bear Office where little Profit is to be had But he likewise observes That those that lived upon Tillage and Pasture being the ancientest sort of People before Luxury brought in Handicrafts and Artizans easilier yielded to the Government of a Single Person or Tyranny or Oligarchy so long as they could enjoy their Country Farms in peace Whereas those in Cities consisting of Tradesmen Artificers the mercenary Multitude and such as lead an idle Life having Leisure and Curiosity to carry them to the Assemblies were more subject to Democracy or Aristocracy or any Novelty or Change There are three things which render Democracy most taking with the Vulgar The plausible Pleas for Democracy answered First Pretended impartial Administration of Justice Secondly The specious but empty Name of Liberty Thirdly The so much applauded Equality by which they seem to reduce their Civil Constitutions to the primary Laws of Nature which gave to all men Common Right Concerning the first saith a Judicious (c) Dudley Digs of Resistance p. 22. 1. That Justice is not so impartially administred Author whose Discourse on this Head I shall epitomize Their Hopes that Justice should be more equally administred are grounded upon this That though some Rivers may be corrupted yet the Ocean cannot A man may satisfie the Interests of some few and corrupt them into favour and respect of Persons but it is hard to do the same with a Multitude for to buy Justice of so many would be no thriving Trade But this though plausible is but a very
(f) Glossar p. 362. Leges pristinas longa receptas consuetudine abolevit Britannisque novas dedit Sir Henry Spelman's Glossary I find that the Manuscript saith That he abolished the old Laws received by long Custom and gave to his Britans new ones which from the Makers Name are called the Laws of Hoel Dha Who over reads these Laws saith a judicious (g) Sacred Laws p. 76. Author will have little reason to think our Common Law ran from any such Fountain and it seems the old Laws and Customs of this People were far worse and more rude yet as the Proem informs us I know some will be displeased that I take no notice of the Mulmutian or of the Mercian Laws concerning which the Abbat (h) Jo. Bromp Coll. 956. num 10. of Jorval and the Monk (i) Lib. 1. c. 50. Concerning the Mercian Laws not British See for this and against it what the Judicious Selden hath writ in his fourth fifth and sixth Chapters of his Janus Anglorum in which the Story of Brute is judiciously confuted of Chester give this account That Dunwallo Mulmucius a British King who lived 430 years before our Saviour made those Laws which continued in esteem till Edward the Confessors days by the Name of the Leges Molmucinae in which he appointed Cities the Temples of the Gods and the Ways leading to them and the Ploughs of the Country Men to be Sanctuaries and after Mercia a Queen of the Britans Wife of Gwithelin whom Leland calls Mercia proba in the Minority of her Son saith the Monk of Chester who ruled in the Country of the Mercians published a Law full of Discretion and Justice called the Lex Mercia which two Laws Gildas the Historian translated out of the British Language into Latin and these in the Saxons time were called Merchena Laga or the Law of the Mercians which Alured the Saxon saith the Monk of Chester from the Latin turned into the Saxon Language and added the West Saxon Law and Canutus added the Danelga or Danish Law all which three being joyned together by Edward the Confessor made those we call the Common Law or King Edward's Laws To which I shall only give Sir Henry Spelman's answer in his Glossary That it is true that King Alfred did write the Mercian Laws into his own West Saxon Laws but as appears by the Preface to his Laws that he collected what ever he found in the Laws of King Ina his Countryman Offa King of the Mercians or Ethelbert who was first baptized and those that were just he collected others being rejected It is not probable that Offa a Saxon King the cruellest Enemy to the Britains having driven them out of all the Confines of his Kingdom into Wales should carry back their Laws as his Spoils especially the Laws being so wicked that in the next Age they should be expunged and juster Laws be chosen as we see in the Preface to those of Hoel Dha I shall offer but one Argument more and so conclude with Sir Henry Spelman's opinion When Ethelbert King of Kent made his Laws Anno 613. as in the next Chapter I shall relate Bede saith he framed them after the Roman Example after Romana Bisena by which we may understand either according to the Laws then used by the Civil or Ecclesiastic State of the Romans As to Sir Henry Spelman (k) Glossar tit Lex Whence most Laws after the breaking of the Roman Empire he saith when the Goths Saxons Longobards Danes Normans and other Inhabitants about the Baltic Sea and Northern parts of Germany had made great Conquests in Europe they imposed their Laws every where upon the conquered and their Country Riâ—â— hence the Agreement betwixt the Laws of the Germans French Italians Spaniards and Sicilians and who ever boast of the Antiquity of their Municipal Laws can deduce them no higher For (l) Quis enim victor populus sub victi legibus conquiniscet saith he What conquering People will bow the neck under the Laws of the conquered especially when they have ejected a great part of them out of the Country So that if the Britains had any Laws of their own after the Roman Conquest they must be preserved in the remotest parts of Scotland and after in Wales but England had other Laws as I shall make appear hereafter CHAP. XXIII Of the German Government and Laws of several Countries after breaking of the Roman Empire and an Introduction to understand the Saxon Law-makers HAving treated of the State of the Britans under the Romans I now in order should immediately treat of the Saxons great Councils and discover by what Authority Laws were made in their time who made up the great Council and whose advice was implied in the framing of their Laws But before I enter upon Particulars it may be needful to say something of the German Polity a Member of which most famous Country though we find not them mentioned during the time of the twelve Caesars no doubt the Saxons were Caesar tells us The Gods the Germans worshipped The Germans had no Druids * Germani neque Druidas habent qui rebus divinis praesint neque sacrisiciis student which attended Divine Matters nor did they study Sacrifices and that they accounted among the Gods those they see and from whom they are manifestly helped in their works as the Sun Vulcan and the Moon the rest they have not received as much as by report But Tacitus mentions their God Tuisto born of the Earth and his Son Mannus and that they worshipped Mercury most to whom they sacrificed Men but to Hercules and Mars other Animals Although the Germans Gauls and Britans were Barbarous yet they were Valiant and capable of great Improvement and that some worshipped Isis When I read in Caesar Tacitus Diodorus Strabo and others of the Barbarousness of the Germans Gauls and Britans their homely Diet poor Cottages and Clothing their Habitations dispersed according as there was convenience of Water or Wood and that uncultivated Disposition they describe I am ready to think before the Roman Attacques upon them they had lived something like the Savage Indians and had little of Arts or Industry among them but when I consider on the other side their great Armies their Weapons the Chariots of the Britans and Gauls called Esseda the (a) Lanceo ferreo cubitali longitudine latitudine duorum palmorum Aerea Galea caput muniâ—bant paulatim eminentiore in qua aut cornua impressa essent aut avium vel quadrupedum essigies sculptae Caesar l. 3. Lances of the Gauls with Heads of Iron a Cubit long and two Palms broad their large Shields and Brass Helmets the German Spears called Framâ—â—â— and the Ornaments of their Shields and Helmets with Figures of Birds or four-footed Beasts in Brass their orderly raising of such and such numbers of Men in such and such Circuits and Jurisdiction of Cities and their training up
Euridicus Euric or Theodoric for by those Names he is called Anno Dom. 466. made them be digested into writing These Levigild Aera 608 amended and they had their fullest Vigor from the Kings Chindaswind and Recaswind and these are used in Spain and that part of France called Gallia Narbonensis anciently Braccata containing Savoy Dauphin Province and Languedoc The next Laws for Antiquity are the Burgundian Gundebald or Gundebaud The Burgundian Laws who was made tributary to Clouis King of France Anno Dom. 501. having setled Burgundy under his Jurisdiction did appoint saith (u) Lib. 2. c 33. Gregory Turonensis milder Laws for the Burgundians lest he might oppress the Romans and Lindenbrogius notes That his Laws agree with the Responses of Papinian though (w) De Impietate Duellici examinis Agobard in his Book to Lewis the Emperor complains of the unjustness of one branch of them in admitting Duel when Proof might otherwise be had However here it appears they were made by his Authority The next are the Laws of the Alemans Baiuvarians and Francks * all which took their beginning from Theoderic the First (x) Spehaan 's Gloss Lex Baioriorum Lex Baiuvariorum Baioriorum Boiorum containing Franconia now Bavaria and Bohemia according to some Son of Clouis the First who founded the French Kingdom Anno 511. having triumphed over the Almains and being converted to Christianity he took the Name of Lewis when he was in Catalonia he called to him wise Men skilled in the Ancient Laws of his Kingdom and he himself indicting he commanded the Laws of those Nations according to every ones Customs to be written adding rescinding and changing them according as Christian Religion required and those which for the ancient Pagan Rites he could not alter himself Childebert the Second begun and Clotharius the Second perfected and Dagobert the great made them better and to every Nation concerned in them Lex Aalmannorum he gave them in writing As to that part which is called the Lex Alamannorum they were amended by Clotharius the Second Son of Chilperic and his Princes viz. Thirty three Bishops Thirty four Dukes Seventy two Earls and the rest of the People as appears by the Title so that this by an Act of the King and great Council and the former by the Kings themselves are recorded to be appointed or made Lex Francorum As to the Law of the Francs not the Salic Law which is of later date we find no more mention of them after they were digested by Theodoric the first till the time of Charles the Great who and his Son published Laws by the Name of Capitularies which Ann. 840. were writ by Ansegisus Abbas Lobiensis and Benedictus Levita so that here is no mention but of the Kings and Emperors sole establishing these Laws Lex Longobardorum The Longobards now Lombards in Italy were a Colony of the Saxons who were removed into Pannonia or Hungary and by Narses General to Justinian about the year 550 were called into Italy to assist the Emperor against Totila King of the Goths whom Narses totally routed in Italy and these Longobards (y) Warnefridus Hist Longobard lib. 4. c. 44. seated themselves there and established a Kingdom and Rotharis their King reduced the Laws which they held only by Use and Memory being mostly such as the Saxons had used into writing and caused the Book of them toâ—be called an Edict which was about 70 years after their setling in Italy the succeeding Princes Grimoald Luitprandus Rachis and Aistulphus and after Charles the Great Latharius and Pipin added and amended them Sir Henry Spelman (z) Glosser tit LL. Longobard saith that betwixt our Laws and those of the Longobards there is a great Agreement in the Laws Rites Words and other Particulars but saith our Ancestors brought out of Germany their Customs not written but according to the custom of the Lacedaemonians and the Ancient Nations of the North retained them in their memories only In the Laws of Henry the First Lex Ripuariorum we find the Ripuarian Laws which were made for those of Luxenburg Gelderland and Cleves not only approved but some of them are word for word in his Laws as Sir Henry Spelman notes As to the Salic Law the Francs a People of Germany The Salick Law passing the Rhine subdued a great part of Gaul and in the third year of Pharamond four of the Nobles of the Nation reviewed all the Originals of Causes according to the Salic Law There are two Prologues to these Laws the first names the four Noblemen that digested them the second saith names the Anno Dom. 798. The Lord Charles the Noble (a) Anno Dom. 798. Dom. Carolus Rex Francorum incliâ—â—s hunc libellum tractatâ—s Legis Salicae seribere ordinavit King of the Francs ordained the writing of that Book of the Salic Law In the Laws of King Henry the First Sir Henry Spelman notes That many things are taken out of the Salic Laws as he instanceth in the 87 and 89 Chapters where the Words are used and Punishments are appointed secundum Legem Salicam according to the Salic Law I shall now set down something in general of our Country Law (b) Glâ—sser Lex Anglorum The English Saxon Laws from Germany Sir Henry Spelman observes That the Laws of the English in Britain seem to take their Original from the German Manners or Customs but he knows not who first introduced them It is known that there came into England upon the Invitation of Vortigern the Jutes or Goths Angela is a Town near Flemshurg a City of Sleswick perhaps our Flamburgh in Yorkâ—â—ire had its Name from some that inhabited that City the Angli or English and the Saxons tho all here obtained the Names of Saxons The Jutes setled in Kent and the Isle of Wight The Saxons in Essex Middlesex and Sussex and so on the Sea Coast to Cornwall and were called the West Saxons The Angli possessed the East and North parts which were called Mercia Those of Kent had their Laws The tripartite Division of the Saxon Laws but after being swallowed up in the West-Saxon Kingdom they were subject to their Laws The Angli used the Mercian Laws till the Danes over-running the Provinces of East-England and of the North Humbers brought in their Customs not differing very much from the Laws they had before from hence sprung the threefold Division of Laws viz. the (c) West-Seaxna Laga Myrcna Laga Dene Laga West-Saxon Laws the Mercian Laws and the Danish Laws The first Laws we have an account of were made by Ethelbert King of Kent Anno 561. and the next by Ina King of the West Saxons who began to Reign Anno 712. and the next by Offa King of the Mercians of which Laws I have spoke before The Danish Laws were such as were not only used in Denmark but in Normandy Danish Laws
as well as Norway which was the reason why William the Conquerour understanding that the Danish Law was used in that part where the Danes had settled themselves he preferred them before other Laws because his Country of Normandy was sprung from the Danes and Norwegians and it was with much difficulty that he was perswaded against imposing them upon the whole Kingdom saying the Danes and Norwegians were as sworn Brothers with the Normans These Danes entred about the year 790. and were at last overcome by King Alfred and by agreement betwixt him and Guthrun King of the Danes who governed the Kingdom of the East Angles and Northumbrians Guthruns People enjoyed the Danish Laws which differed from the other in nothing so much as the proportion of the Mulcts King Edward the Elder Aethelstan Edmund and Edgar made Laws but from the time of Edgar to Edward the Confessour the Danes having the principal Command the Danish Laws mostly prevailed But Edward the Confessour of these three Laws composed one which saith the Monk of (d) Lib. 1. c. 50. Edward the Confessor 's Laws composed of all Chester are called the Common Laws and to his Days were called the Laws of King Edward By all I have hitherto noted concerning the Laws either made in Germany France Lombardy Burgundy Bavaria or other Countries after they came to have any established Government of their own or in England during the Heptarchy It is apparent whoever was Soveraign imposed the Laws which as to the Saxons in the next Chapter I shall make particularly appear When the Roman Imperial Law began to be disused That the Roman Laws begun to be disused as soon as their Empire declined and was broken is as manifest for these several Nations by the appointment of their Soveraigns had their unwritten Customs and Laws revised and according to the suitableness of them to the Government of their People had them writ into Books and enjoyned them to be observed by their Subjects To make it evident that the Imperial Roman Law was much disused after Justinian's time upon the account of other Soveraignties being established which acknowledged not that dependence upon the Empire as formerly I shall offer something from Mr. (e) Notes upon Fortescue p. 20. Selden who if any other is to be credited in this kind of reading after I have said something of Justinian The Emperour Justinian (f) Proaem de Consirmatione Institutionum Of Justinian 's Laws in the year of our Lord 565 by the help of Tribonian Master and Exquaestor of the Sacred Palace and Exconsul and of Theophilus and Dorotheus Illustrious Men of whose Skill and Knowledge in the Laws and their Fidelity in observing his Commands the Emperour had manifold experience of Although he had commanded them by his Authority and Perswasions to compose those Institutions that the Subjects might not learn the Law from (g) Non ab Antiquis Fabulis discere sed ab Imperiali splendore appetere Breviter expositum quod antea obtinebat quod postea desuetudine inumbratum Imperiali remedio illuminatum est Legimus recognovimus plenissimum nostrarum constitutionum robur eis accommodavimus Ancient Fables but from the Imperial Splendor as he calls it desire them and after fifty Books of Digests or Pandects and four Books of Institutions were made in which were expounded whatever before-time was used and what by disuse was obscured by the Imperial Remedy was Illuminated and he had accomodated to them his fullest Authority and had appointed them to be read and taught at Rome Berytus and Constantinople and no where else Yet the body of the Civil Law was so neglected that till Lothar the Second about the year 1125. took Amalsi and there found an old Copy of the Pandects or Digests it was in a manner wholly disused Under that Lothar the Civil Law began to be profest at Bologna and one Irner or Werner made the first Glosses upon it about the beginning of Frederick Barbarossas's time in Anno 1150. and Bologna was by Lothar constituted to be Legum Juris Schola una sola (h) Sigon de Regno Italiae lib. 11. 7. This Book Lothar gave to the Pisans by reason whereof saith Mr. Selden it is called Litera Pisana and from thence it is now removed to Florence where in the Dukes Palace it is never brought forth but with Torch-light and other Reverence By this account we may note That even before Justinian's time some Laws had been rather by old Traditions which he calls old Fables than by certain Authority received others were by long disuse forgot and after they were thus established by Imperial Authority yet the succeeding Barbarity of the Ages and the new Kingdoms erected caused other Laws to obtain Force the first of which we find very rude All the first Laws we read of in any Nation seem either so comparatively to the refinedness of the Laws in these Ages or else the Digesters and Authorizers of them complain how obscure rude or indigested those were out of which they extracted theirs The great Subversion the Saxons made by their Conquest The Saxons made so great and universal a Subversion in the State that scarce any City Dwelling River Hill or Mountain retained its former Roman or British name so that we have less reason to expect any satisfactory account either of British History Polity or Laws when we only know where they had Camps Stations or Cities Palaces or Fortifications or Temples by the Coyns Brick tessellated Pavements Glass Earthen or Jett Fragments of Cups and other Houshold-stuff or Urns and Sacrificing Dishes which by chance have been found in the Rubbish of many Towns that have been certainly fired and totally demolished which sufficiently disâ—â—ver the noble Structures and rich Furniture the Romens and Britans had before the Saxon Invasions Besides which we may consider not only the continual Wars and Depredations the Saxons made one upon another but that the Daves like a fatal Hurricane or Whirlwind tore up Root and Branch every where overturning ransacking burning and destroying all that they could not peaceably possess Having thus far treated of the State of the Britans and something of the Laws in general A short Glossary of the Names or Titles of the Constituent Parts of Great Councils as a Praeliminary to the better understanding who are meant by the Persons who we find do constitute the great Councils I shall out of Sir Henry Spelman Somner and Doctor Brady give a very short Glossary referring the curious Reader to the Books themselves The most common Words in the Saxon Laws that are used besides the Bishops The Witan or Wites Einhard divides the Germans into four sorts of Degrees the Noble Free-men those made free and Servants his words are Quatuor differentiis gens illa consistiâ— Nobilium sâ—iliâ—et Liberorum Libertorum atque Servorum Adam Brem Hâ—â—t Eccles c. 5. to express the Persons