Hist Savil Edit 907. Sometimes the Chief Justice is called Warden of the Realm Vice Lord of England and Justice of England as the Alderman of England was most Honourable in the Saxon times So was the Justice after which was the same from the first time the word is heard of till Henry the third if we except Hugh of Bocland and Ranulphe of Glanville we shall not finde one of these Justices but he was a Bishop a Peere or at least of the Nobility of one of the illustrious families Aubreye of Ver Earle of Guisnes high Chamberlain of England Justice and as some Portgrave of London father of Aubreye of Ver the first Earl of Oxford which familie so Mr. Cambden justly is the most antient fundatissima familia amongst the English Earles as Matt. Paris was ready in the variety of causes exercised in them a In Sitph reg And of Geofrey Fitzpeter Then dyed Geofry Fitzpeter Earle of Essex and Justice of great power and authority a generous man skilful in the lawes allyed either by blood or friendship to all the great men or Barons of England b Id. in Johrege Henry after king son of Henry the second was chiefe Justice of England By the Statute of 31 of Hen. the 8. c c. 10. which ranks the publique great Officers The Lord Chancellour or Lord Keeper is the first man The great Chamberlain of England Constable Marshal and Amiral are to sit below him the Justices are accounted Peers and fellows of Peers Magna Charta sayes No free man shall be amerced but by his Peers and according to the manner of his offence It is observed As to the amercement of an Earle Baron or Bishop for the Parity of those who should amerce them when this Charter was made that the Justices and Barons of the Exchequer were sufficient Bracton as the most learned Mr. Selden cites him sayes Earles or Barons are not to be amerced but by their Peeres and according to the manner of their offence as the Statute is and this by the Barons of the Exchequer or before the king d 1. H. 6 7 v. D. Spelmver he Baron Scaccer All Judges sayes the same Mr Selden were held antiently as Barons which appears in an old law of Henry the first which is Regis Judices sint Barones Comitatus qui liberas in eis terras habent per quos debent causae singulorum alterna prosecutione tractari Villani vero Cotseti vel Ferdingi Cocseti vel Perdingi in legibus nuper editis sed perperam vel qui sunt viles inopes personae non sunt inter Judices numerandi e c. 29. The Barons of Counties who had free lands in them were to be Judges not common base fellows hence as Mr. Selden again are the Iudges of the Exchequer called Barons The black book of the Exchequer makes it manifest the Judges of the Exchequer before Hen. 3. or Edw. the 1. for thereabouts the Exchequer had its ordidinary and perpetual Barons were of the Baronage by these words f part 1. c. 4 There sits the chief Iustice of our Lord the King first after the King c. and the great men or Barons of the Realm most familiarly assistants in the kings secrets By the decree of king Iames g 28. Mai. 10. Jac. reg The Chancelour and under Treasurer of the Exchequer Chancelour of the Duchie chiefe Justices Master of the Rolles chiefe Baron of the Exchequer all the other Judges and Barons are to have precedency of place before the younger sons of Viscounts and Barons and before all Baronets c. there the degree of the Coif is called an honourable order the Serjeant is called by Writ The words used to be we have ordained you to the state and degree of a Serjeant at Law Vos and Vobis in election of Serjeants and summons of Judges to Parliament ever applyed to persons of quality are used One Statute speaks where he taketh the same State upon him h 8 H. 6. c. 10. And another At the Creation of the Serjeants of the Law i 8 E. 4. â— 2. Which is observed ever to be applyed to dignity k Rep. 10. Epist The Patrons of causes called pleading advocates and Narratores Counters of the Bench or Prolocutors of old as Paris l Hist 516. vit Abb. 142. all Lawyers were antiently of the Clergie And those now who are so curious for neatnesse of that order may thank their predecessours for that rudenesse which is so unpardonable by them in the Latine of the Law No Clerk but he was a Lawyer saies Malmesbury in * Lib. 4. Ed. 1. Savil. 123. William the second we read that Mr. Ambrose the Clerke of Abbot Robert of St. Albanes most skilful in the law an Italian by Nation amongst the first of the lawyers of England for time knowledge and manners is sent to Rome m Vitae Abb. St. Alb. 74. Adam of Linley is said to be Abbot John the 1. his Counsellor in all his weighty affaires a curteous man honest and skilful in the lawes n Ibid. after Archdeacon of Ely for most of them held Church-livings he was after speciall Counsellour and Clerk saies this this Monke to the Archbishop of Canterbury Stephane John Mansel of whom we read so much in the History of Hen. the 3. is called the Kings speciall Councellour and Clerk as much as Atturney generall since o Ibid. 142 Hence it is that the ancient habit of secular Judges was the same and yet is with that of the Ecclesiasticks p D. Wats Gloss ad Paris William of Bussey Seneschal and chiefe Counsellor of William of Valentia would have losed saies the same Monk the staies of his Coife to shew his Clerkly tonsure his shaven crown q 984 985 Hist And again he sayes The Clerks who such Writs dictate write signe and give counsell r 206. Aâ—â—it They are restrained by Pope Innocent the 4. his Decretales who forbid any such to be assumed to Church dignities c. unlesse he be learned in other liberall Sciences Philosophy and Divinity were laid by as the words there the multitude of clerks ran to the hearing of secular laws Å¿ ibid. 190.101 Hugh of Paâ—shul clerk is made justice of England by Hen. the 3 t Hist 405 So was the famous John Mansel before Keeper of the great Seale There have been seven Wardens of the Kingdome or Viceroyes of the Clergy twelve great chiefe Justices neere 160 times have Clergy men been Chancellours about 80. of them Treasurers of England all the Keepers of the privy Scale of old the Masters of the Rolls till the 26. of King Hen. the 8. the Justices of Eire of Assise till Edw. the third were of that order u D. Spel. Epist ad concâ—l men whom the Lawes were beholding to w 1 Inst â—ect 524. rep 5. Câ—wd 2. Just 265. else they had been told
every paultry Chafferer for smal Wares and a plaine wit with modestie is more profitable to the government then arrogant dexterity l Thucyd. l. 3. In the glosse upon Justinians Institutions to set up Lawes and pluck them downe is called a most pernicious custome in many places as there declared so by Plato and Demosthenes m f. 28. The Lord Cooke his judgement of the Lawes of England is That having been used and approved from time to time by men of most singular wisedome understanding and experience to be good and profitable for the Commonwealth as is there implied they are not to be changed n Pâ—af to the 4. rep To which purpose he recites there the resolution of all the Barons of England in the Statute of Merton refusing as the King and his Counsell doe which the Lord Cooke o 2 Just 98. collects of them out of the 26 Epistle of Robert Bishop of Lincolne to the Arch-Bishop of Canterbury to legitimate the antenate or bastard eigne borne before marriage with this reply in these termes And all the Earles and Barons with one voice answered That they will not change the Lawes of England which hitherto are used and approved p Stat. Mert c. 9. what is lesse then change the same Lord Cooke likes not correction of the Lawes It is an old rule in Policie and Law so he that correction of Law bee avoided q 4. rep Pres which some will thinke is over-done a streine too high yet it has its reason Lawes are the walls of Cities to be defended as walles no caution can be too much like the Soveraigne of Mexico they are not to be touched But had our Laws or others been composed not only as they are by the most solid wisest heads of all the ages past but by immediate conveiance from God himself pronounced with his own voice or delivered by an Angell to us One word Libertie specious Libertie more admired then understood with which of late Laws are idely imagined inconsistent were enough to cancell and blot them all I am unwilling to shew here how much and often but how seldome to an honest end for the most part in the head of a mischief this word this found or handsome title for it is no more has been used It is most true all Lawes are inconsistent with this Liberty as that 's inconsistent with any Government whatsoever The eminent Patron of it was a Jew Judas of Galiles author of the Sect who as Josephus r L. 18. c. 2. agreed with the Pharises in other things but on fire with the most constant Love of Liberty they beleeve God is onely to be taken for their Lord and Prince and wil more easily endure the most exquisit kinds of torments together with the most deare to them then to call any mortall Lord. If it might have beene permitted they would have been free enough no Tax Tribute Custumes nor Imposition would they pay but not out of that authority of Deutoronomy which is pretended but no where to be seen Non erit pendent vectigale There shall not be any paying Tribute amongst the Sonnes of Israel There are no such words nor any to that sense in any of the received languages 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 are the Greeke words as our English amongst the Daughters and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in the place signifies not one who payes Tribute but one initiated in the mysteries of the Paganes by them called sacred s Orig. Eccl. Tom. 1.1317 yet had this Heretick as all others ever brag of it Scripture authority from this Booke t Deut. 6. and with the words Thou shalt feare the Lord thy God and him onely shalt thou serve he was fortified which conclude nothing Tribute being paid under the Law as the price of redemption of the first borne and in many other respects dispersed over the Law To men too and in relation to government manifest by that in Samuel u 1 Sam. 17 The man who killeth Goliath the King will make his fathers house free in Israel This the Georim and Epimicti the Posterity of the Cananites and of those which came up with them from Egypt did not onely pay but the Israelites also as is cleare by that text and this That Solomon made Jeroboam ruler over all the tribute or burthen of the house of Joseph w 1 Reg. 11 As others were over the rest of the Tribes Adomiram being said generally to be over the Tribute x c. 4.6 Though Judas inturning the people after him and his Libertie as it is called with his Sonnes perished yet the dregges of his sedition were gathred together in the Castle of Massada by Eliazar the Nephew of this Galilaean with the same obstinacy not to call any man Lord they had their beastly kennel fired about their cares and after some exhortations to one another not to esteem their lives above their deare Liberty they fall upon their owne swords y Joseph l. 7. c. 28. The Jewes of late have made some change with their borderers with their next marchers this as before is become Anabaptisme now of which some of those of Rome who will be any thing rather then stand out where they may doe mischiefe fall not much shorter Christ as Cardinall Bellarmine freed his Apostles from all earthly subjection So that therefore they were subject of fact not of right To passe by all these there is not that fulnes in the word Liberty which is expected Cicero makes it a power to live as we list z In Paradox which cannot be in any government or society nor in any the most retired exile of our selves from mankind if at any time we have the shortest commerce or conversation with others The institutions define liberty to be the natural faculty of any man to do what he pleases a Justin Jâ—stit 31. unlesse by force or Law he be forbidden which as the glosse renders it is a power given by nature to do what we will unlesse one more potent hinder us As Scipio hindred Hannibal yet was Hannibal free still Or that the civil Law of our country forbid us b Et libertas Which last is explained thus Cicero sees his destruction contrived by Clodius and hanging over his head he desires to preserve himselfe by prevention and to kill Clodius that he may free himself from the danger but dares not as I may say either reverencing the Lawes as a good and a just man for he is injust who do's justly because of the penalty annexed to the Law or fearing that penalty as the words yet is Cicero free It goes on We call that liberty which is just and consentaneous to the Laws and therefore is subjoyned in the definition Vnlesse any thing be forbidden by the Law c In lib. 1. tit 111. So that plainly there he is a free man who may do those things which the Laws permit him which
The Lord Chancellours oath is thus That he shall doe right to all manner of people poore and rich according to the lawes and usages of the Realme s 10. R. 2. rot Parl. 8. The Barons of the Exchequer sweare no mans right to disturbe let or respite contrary to the lawes of the land t 4. Jnsti 109. which must be meant of the knowne and certain Law of the Land called in Magna Charta Legemterrae upon which all Commissions are grounded wherein is the clause to do what belongeth to Justice according to law and custome of England u 2. Jnsti 51. The illustrious Viscount of St Albane amongst his Aphorismes of universall Justice has this Let no Court deale in cases capitall our Lawes say Civill too but out of a knowne and certaine law God denounced death then he inflicted it nor is any mans life to be taken away who knew not first he had sinned against it w Augm. scient 402. By this Law of the Land although there is not nor cannot be any liberty which should protect the transgressors of it yet have all Offenders a legal tryall nor are possessours of the worst faith thrown out without the hand of the Law onely against those who attempt to subvert or weaken the Lawes there is a Writ to the Sheriffe in nature of a Commission to take the impugners and to bring them as the Register to the Gaole of Newgate x Regist 64 2. Justi 53. This as the Lord Cooke is lex terrae The Law of England to take a man without answer or summons in this case and the reason given is He that would subvert all Lawes deserves not the benefit of any Amongst the articles exhibited to King Henry the eight against Cardinall Wolsey he is charged with oppression in imprisoning Sir John Stanly and forcing him to release a farme taken by Covent Seale of the Abbot of Chester c. as the words by his power and might y Artic. 38. And that he threatned the Judges to make them deferre judgement z Artic. 39 that he granted many Injunctions the parties not called nor any bill put in by which diverse were cast out of their possessions of their Lands and Tenements a Artic. 21. The close was That by his cruelty iniquity and partiality he hath subverted the due course and order of the lawes His Inditement went higher and accused him That he intended the most ancient lawes of England wholly to subvert weaken and this whole Realme of England and the people of the same to the Lawes Imperiall commonly called the Civill Lawes and to their Canons for ever to subiugate c. b Mich. 21. H. 8. Coram Rege Now although the Civill Law deserves as much honour as can be given it and commands and is obeyed much abroad yet this Law of the Land held the possession here by a long unquestionable prescription and after the tryall of many ages got the affection of the people whose fathers grew up happily under it which was not easily to be removed the rather because seldome doth any Nation willingly submit to or welcome the Customes and Laws of another which they have not been acquainted with and our Judges who wil not in our Books part with one of its Maximes c 2. Jnst it 210. would not have fallen downe before the shrive of any unknown Themis and have offered up the whole tables It were no hard matter to heape up testimonies Vid chap. 3 if some would thinke it lawfull to trust men in their owne arts or professions and can it not but be more reasonable that such should be heard in the defensive then that those who professe full Hostilitie bringing with them onely mistakes of their owne prejudice should sit Judges of the tryal which is in their own cause and if thus far the reines be given to turbulent desperate spirits every thing how sacred soever may be arraigned at these tribunalls the articles of our faith will quickly totter nor will any principle be safe This discent will be fatall there being no stay in the precipice the bottome onely must receive men where he that falls is crushed to pieces what is worse those unhappy ones who follow cannot see their danger Thus we have seen what the common Law the Liberty and Franchise of the free people of England the law of the land is The law of antient time d. 27. E. 1. of old time used e 25. E. â— the old law f 42. E. 3. for ages according to the judgement of these Parliaments makes the law more venerable it is an addition of honour to it Now it followes in order to speake something of the Antiquity of this law The Antiquity of the Law But as the beginnings of things sometimes are rather guessed at then knowne it is no wonder that there should be no generall agreement here of opinions some will make the Law a Colossus of the Sun knocking the Starres with its head more ancient then the Dipthera or Evanders mother others a late small spark struck from the clashing of the Norman Swords the child rather of Bellona then Jove terrible in the Cradle the truth being mistaken by both To relye upon the authority of a Chancelour or rather chiefe Justice in the time of King Henry the sixth upon which the * r. 2. Epi. r. 6. Epist antiquity should be raised was lesse then that of Aventine who professed History where after a prodigious linke of German Kings before the Arcadian Moone he will needs bring his Dutch to the Wars of Troy which he proves out of the laws of Charles the 4. who lived lesse then two hundred yeare before Aventine and some three hundred yeares before us from which he is peremptory there must be no appeal g Boicar Hist 49. for a great Lawyer continually imployed in the publick affaires or in his study where his many volumes upon the law show the whole man might well be taken up to faile in a piece of History if he may justly be said to faile this way who onely trusted another who was carelesse It is no blemish such as can deserve the censorian rod of our Criticks besides all men love to consecrate their originalls This is allowed to antiquity saies Livie mixing things humane with divine to make the beginnings of Cities more majestick and we may say as he doth of his Rome of our Lawes if it be lawfull to canonize any to carry them up to Heaven or fetch them downe from thence that glory alone is due though it needs not to the most sacred lawes of the land Sir John Fortescue his words are to this effect That if the lawes of England had not bin most excellent the Romans who cry up their Civill Law Saxons Danes or Normans had altered them h de lg Ang l. c. 17. by which our Lawes must be Brittish at least and our