Epistle doth require that before I enter into the discourse of our auncient Britaine lawes I speake somewhat concerning the Romane Lawes that it may appeare that neither the reuerend Elutherius was deceiued in judgement nor the Godly Lucius in his choise nor the learned Fortescue in his testimony but that our said auncient Lawes were indeed as well as by the Romanes owne confession in that they did not change them better then their owne I speake as a Christian for asmuch as Brittain receaued the Lawes of Christ before it knew the gouernmēt of Rome but because I wold be loath to offend I will remit the reader that is desirous to know what may be said of the Authors composers of the first Romane Lawes Aug. de Ciuit Dei L. 3 Wesembech prefat in Isag Riuall in hist Iur. de Iustiniano to St. Augustin and of these now extant to VVesembechius Rivallius Procopius and others And for the principles and groundes I will referre them to consider the particulars of the twelue tables yet in parte remayning and to measure and examine the rules of the Institutes by the wordes of the Authors out of which they seeme to bee taken Aristotle Tully Isidorus c. and both by the Scriptures a woorke worthy the vacation of a learned man But for the Lawes of Brittaine my principall intention before I come to speak of them I will intreate a little leaue to speake somewhat first of lawe in generall and secondly of the auncient inhabitantes of this I le For by knowing what they were wee shall the better knowe their Lawes and manners Cap. 3. THe Lawe by Aristotle is called a couenant of the societie of men Polit. 1. De Leg. By Tully the reason and minde of God discerning just and vniust If we joyne these two and call it the couenant made by God with the societie of men according to his owne reason Ex. 34.27 20. v. 5.6 Deut. 5.2 discerning just vniust it agreeth with the words of Moses and will be as I take it a perfect definition The end as Tully saith is manifest Ad salutem ciuium De Leg. 2. ciuitatumque incolūnitatem vitamque omnium quietam et beatam Agreeing also with Moses if Salus et Incolumitas et Beatitudo bee taken for all the blessing of this life and the life to come Lawes are called Diuine or Humane The deuine Lawes are those which God immediately made first written in nature secondlye described in the ten commaundements the Scriptures Humane Lawes are Lawes deriued out of the diuine Lawes by applycation of the generall commaundements First to the principal parties viz. to God to the common estate and to priuate men according to the diuision of the twelue Tables Auson secondlye to particular circumstances of Persons thinges actions times places Penalties and such like as the Institutes are deuided Heerehence followeth a conclusion obserued also by Tully that if a Law be made contayning any thing contrary to the Lawe of God it is not to be called a Lawe though all the world in a ioynt Parlamēt confirme it For neither is it deriued out of the general precepts nor partaketh of the common definition seeing it is not a couenant of God but a confederacy against God The property and effect of the Lawe is first to make a distinction of just from vniust Secondlye to commaund and forbid Thirdlye to punnish and rewarde These thinges are performed originallye and gennerally by the Lawe of God and secondarily and particularly by the Lawe of men The quallities of a true Lawe are reckoned vp by Isidorus and others Esse debet Lex Honesta Iusta possibilis Decret Part. 1 Wesemb secundum naturam et consuetudinem Loco et tempori conueniens necessaria vel vtilis manifesta c. A Lawe must bee honest just possible agreeable to nature and custome to time and place necessarie or profitable and manifest of this proceedeth another ground also jus nemini violare vel ignorare Licet Item lex obligat ad scientiam ad obedientiam ad paenam The Lawe bindeth to knowledge obedience punishment no man may breake it no man may be ignorant of it and that which Isidore saith when Lawes are made no Man may judge of them but according to them The exact performance of the Lawe is called Iustice 5 Ethic. the moderation of the Lawe vppon consideration of circumstances is called equitie the contraries to the law are jniurie jniustice jniquity wrong force fraud such like Whatsoeuer is said of the Law of God absolutely may proportionally be applyed to the Lawe of men The end of the Lawe of God is al happines That happines which is the end of Humane Lawes consisteth chieflie in the conseruation of Religion Psal 72.85 Peace and Iustice all which thinges are comprehended by St. Augustin vnder the name of peace which also he maketh the finall end of the Citie of God De Ciuitate Dei li. 19 The matters which the Lawes doe handle are chiefly persons things places times contracts offences and actions In this Iland persons appointed specially for the procuration of Religion are the Archbishops Bishops Ministers for the preseruation of Peace are the Nobilitie Sheriffes and Iustices of peace For the administration of Iustice the Iudges professors and Officers of Lawe And the King hath from God supreame authoritie ouer all according to the sentence Rex est Vicarius Dei Other distinctions there be of Persons but it is not my intention to speake of euery difference but onely so much as may serue to giue light to the Discourse intended Things also haue many diuisions whereof I meane to touch but one which is that some may passe by course of inheritance as Landes and tenements some cannot as Chattelles Of places some haue sacred priuiledge as Temples representing God by his woord The Kinges presence and Iudiciall Courtes representing God in power and Iustice others are ordinarie and common and of them some are publique as Markettes Wayes Some priuate as Houses Shoppes c. Times are likewise diuided into sacred and common the Day the night and such like diuisions Contracts haue manifold Distinctions which see in Bracton Bracto L. 3 Crimes are either against Religion Peace or Iustice and againe are considered as publike offences so Rex pro pace sequi debet Bracton in which all the Pleas of the Crowne are contayned or as some particular person is interessed who is to sue accordingly Againe they may be pursued ciuilly or criminally Lastly actions are distinguished for the moste parte according to the things which they demaund or the persons plaintifes or defendants or the Courts wherin or the times whē c. In actions are these principall partes Sūmons or Citations triall Iudgement and execution These points as fitter to be sought in other places as to learned men and as my selfe not halfe learned I doe briefely passe
set downe Touching the Epistle it selfe it contayneth an answer to the demaund of King Lucius The demaund was to haue the Lawes of Rome and Caesar The answer consisteth of two partes a Rejection We may saith he alwaies reproue the Lawes of Rome Caesar but not the Lawes of God And an exhortatiō to take a Lawe for his Kingdome out of the Lawe of God This he inforceth with diuers reasons and sentences of Scripture which with an admirable consent do euery one proue each other and euery one the seuerall partes of the answer First you are Gods Vicar therfore you must rule by Gods Law not by Caesars The earth is the Lords therfore it must be ruled by the lawes of the Lord and not by Caesars God hath annoynted you to be King Caesar hath not annoynted you therefore c. O God giue thy judgements to the King therefore not Caesars what then would you doe being a godly Christian vpon the reading of such a Letter Let our most Christian King St. Edward giue vs counsel who in his Lawes Lāb Arch. taking the words of this Letter for his ground-worke saith thus Rex autem quia vicarius summi regis est ad hoc est constitutus vt regnum terrenum populum Domini super omnia sanctā tucatur Ecclesiam eius regat ab iniuriosis defendat maleficos ab ea euellat And a little after he sheweth how this may be done Debet vero Rex Deum timere super omnia diligere mandata eius per totum Regnū suum seruare Debet etiam sanctam Ecclesiam regni sui cum omni integritate libertate iuxta constitutiones patrum predecessorum seruare fouere manutenere regere contra inimicos defendere ita vt Deus prae caeteris honoretur prae oculis semper habeatur Debet etiam bonas eges consuctu dines approbatas erigere prauas autem delere omnes a regno deponere Debet iudicium rectum in regno facere iustitiā per consilium procerum regni sui tenere Thus saith St Edward but if the counsell of so excellent a King doe not resolue you yet in the mouth of two witnesses let euery word be confirmed and peruse the wordes of a most excellent Counsellor and Lawyer I say Bracton lib. 3. cap. 9. who there speaketh to the same effect Bracton grounding likewise vpō the same golden foundation Rex est Dei Minister Vicarius Potestas itaque sua iuris est non iniuriae Potestas autem iniuriae Diaboli est non Dei and so after to the like effect as St. Edward had spoken I think therefore there is no man but wil say that King Lucius did accordingly namely that according to the contents and directions receiued he did call a Counsel or Parlament a thing vsed in those times as I will shewe heer-after He did suruay the State and Lawes of his Kingdome that which was agreeable to Gods holy worde he did confirme and that which wanted he did newly enact Reasons perswading me to thinke that King Lucius did so are these First his Godly zeale which would neuer haue written to Rome for Lawes without a great desire to haue the best lawes to gouern his Kingdome and to my vnderstanding it is senceles and absurd to say that whē he had receiued an answer so good agreeable to his desire that he would leaue it vnfollowed and vnperformed It cannot be said that he wanted will seeing he sent for Lawes nor that he wanted time opportunitye power or consent of his Nobles or people seeing all or the most part yea the Druidae and Flamnies embraced Christian religion together with him Beda ponticus virum Polidor Monemuth as our Histories testifie and he ruled the Britains long time after in flourishing peace and tranquility Againe that he retayned some of the former Lawes the common opinion of those auncient Christians of the Primitiue age perswadeth me wherof I will speake more whē I come to K. Lucius his lawes Yet by the way one text will I cite out of Iunius Iun. in epistola ad Politiam Mos who saith that as long as Heathen Emperors Kings held the raines of gouernment the Christians gaue not their mindes to dispute the question of the vse and authoritie of Moses Lawes but when the State changed Christian Emperors were aduanced then those most sapient orthodoxall Fathers seeing it most expedient to turne about this world without any greater noise forbearing the troubles of secular affayres left the authoritie both of making lawes giuing iudgements to the ordinarie Magistrates but if any were instituted Contra Rectā Rationem quā in natura et scriptura explicauitus De against right good reasō which God in nature Scripture hath described that either with gentle calme admonitions they procured to be amended or patiently suffred if it were incurable least the whole common good which Augustin before called Peace should be stirred in hope of some particular For that many times the importunitie of men bringeth to passe whiles they seek to cure one euill they shake and weaken the publike estate In which wordes besides the point in hand is much to be obserued that nothing ought to bee in the Lawe against reason which is the vniuersall Maxim the maine foundation and as I may call it the abridgement of all our common Lawe which heere you see to be the rule of those auncient fathers and affirmed to haue been expressed by the Diuine wisdome of God in nature and Scripture This is it whereby all our questions and controuersies all our arguments and iudgements all our Statutes and customes are ruled and ouerruled enlarged and corrected But againe to our purpose St. Augustin speaketh much to the same effect De Ciuit. Dei lib. 19 C. 17. Haec ergo caelestis Ciuitas dum peregrinatur in terra c. This heauenly City whiles it is in Pilgrimage vpō earth calleth Citizens out of all nations and in all tongues assembleth a Pilgrime societie not regarding the manifold diuersities of manners Lawes and customes not repealing or destroying any of those thinges whereby the terrene peace so I reade is eyther procured or preserued but rather keeping and following that which although it be diuerse in diuerse nations yet still is intended to one and the same end of Terrene Peace so long as it is no hindrance of the Religion whereby the onely supreme and true God is taught to bee worshiped To the same effect he speaketh againe in the nineteene Chapter of the same booke These authorities therfore leade me to beleeue that King Lucius retayned such of the auncient institutions as were not Contra rectam rationem as Iunius saith quam in natura et scriptura explicauit Deus And that he did take some part of his Lawes out of the Scriptures is proued by the testimonies of our Chronicles compared with the
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