6. And again there in the Chapter of the Maletot u c. 7. The ill Toll or Charge of 40 s. upon every sack of Wool is taken away where are these words We have granted for us and our Heirs not to take c. without common consent and good will By the Statute called de Tallagio non concedendo No Tollage nor aid was to be set or levied but by common consent w 34 E. 1. All new Offices with new Fees are within this Statute x 2 Inst 533. No man is to be charged by any benevolence which is condemned by a Statute as against the Law y 1 R. 3.2 He who judges things impartially must confesse the English ever to have been the most happy and most free of all people while they enjoyed the benefit of these lawes and are likely yet to continue â—s happy under them for the time to come But as some there are as is noted who will allow no authority but their own not reason it selfe nothing without themselves so some there may be rather for a Sect then the truth more willingly following a great name then reason chusing number rather then weight and worth carryed away with authority as they call it such as will yeeld to nothing else If any such there be I will please them they shall have authority with truth weight and worth together Not that I bring in other vouchers as if I refused those or thought them not sufficient who as have shown before are the true and undoubted Judges of the lawes In the Councel at Oxford of the English and Danes held in the sixt yeere of King Cnut The English and Danes are said to agree about keeping the Laws of King Edward the first Wherefore they were commanded by King Cnut to be translated into the Latine Tongue and for the equity of them those are the words to be kept as wel in Denmark as in England z Mat. West flor Hist l. 1. 311. Wigorn. 311. Although it is said the English laws * Gloss ver Lex Dan. were silent spake not in the times of the Danes which might generally be true yet in the reigne of of this King it was otherwise as appeares by his excellent lawes of Winchester full of piety and justice a Concil saex 569. These were the famous lawes observed by King Edw. the Confessour after many of the laws of K. Aetheldred many of those of the renowned Councel of Aeaham under the same Aetheldred are amongst them In the Epistle of King Cnut writ to the English when he was coming from Rome He saies He bad vowed to govern the Realms subject to him justly and piously and judgement in all things to observe At his returne saies Malmesbury he was as good as his word For all the Laws by the ancient Kings and especially by his ancestour Aetheldred given under penalties be commanded to be observed for ever which now men swear to keep under the name of King Edward not that he ordained them but because he observed them b Malmâ—b de Gest Reg. l 2. c. 11. p. 75. How much the ancient Englishman loved and prised the Common lawes is evident by what has been before said concerning the Magna Charta and the setling them And it is more evident by the odiousnesse which subversion and the subverters of the Lawes have lain under in all ages There is a Writ in the Register as before to take the impugners of the Lawes and bring them to Newgate c Regist 64. In the complaint of the Bishops of Henry the thirds reigne against the strangers Poictouins his favourites are these words As also because the Law of the land sworn and confirmed and by excommunication strengthned this was the Magna Chaeta together with justice they confound and pervert d Ma. Pa. 396. The Earle Marshall Richard complaines of these Poictouins to this King as men who impooy themselves to the oppression of the Lawes and liberties e ibid. 384. Stephane of Segrave the chiefe Justice is charged in another place with corrupting the laws and introducing new ones f ibid. 392. The same King is told by those Bishops That if the subjects bad been governed according to justice and right judgement of the land c. those troubles had not hapned The Statute banishing the Spencers the father and son has this Article To the destruction of the great men and of the people they put out the good and fit ministers and placed others in their room false and wicked men of their Covin who would not suffer right or law to be had and They made such men Justices who were not at all conversant in the law of the land to hear and determine things Empsons indictment runs Nor having God before his eyes c. falfely deceitfully and treasonously the Law of England subverting g 4 Just 199. The Articles against Cardinal Wolsey before mentioned begin Hath by divers and sundry waies and fashions committed high and notable and grievous offences misusing altering and subverting the order of the lawes His articles are there by the introduction said to be but a few in comparison of all his enormities excesses and transgressions against the Laws These Articles were subscribed by the Dukes of Norfolk and Suffolk the Marquesses of Dorset and Exceter the Earls of Oxford Northumberland Shrewsbury the Lords Fitzwalter Rochford Darcy Mounjoye and Sandys c. all which as those others taking subversion to be so heinous an offence must needs be imagined to esteem the Lawes highly Lewis of France invited hither by the Barons in King John his time in the entrance to his new principality is made to sweare to restore to every of them the good Lawes h Ma. Pa. 282. As others to maintain ad keep the institutions of the Countrey Those who desired a stranger for their master would not be governed by new and strange laws amongst the covenants of marriage betwixt Queen Mary of England and Philip the second of Spain there is one to this effect That he the King Philip should make no invasion of State against the laws and customes of the Realm neither violate the Priviledges thereto belonging i Hollinsh p. 1118. And amongst those covenants of marriage treated betwixt Elizabeth of most happy memory and Francis Hercules of Valois Duke of Anjou the same care and warinesse is had one of the conditons is That the Duke shall change nothing in the laws but shall conserve all the customes of England k Comd. Eliz. 338. The Lord Treasurer Burleigh the Earles of Lincoln Sussex Bedford and Leicester Sir Christopher Hatton and Sir Francis Walsingham were delegates for the Queen men too wise to tie themselves and others to preserve those things which are neither worth a care nor being The Statute 28 of Edw. the 3 l An. Dom. 1363. speaks thus The good ancient Laws customes and Franchises of the said Realm The
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
second of Richard the second m 2 R. 2. c. 1 Wills that the great Charter and the good laws of the land be firmly holden The 3d. That the good laws and customes c. be bolden n 3 R. 2. c. 1 v. 5 R. 2. c. 1 7 R. 2. c. 2. 9 R. 2. c. 1. The 4. of Hen. the 7. And over that his Highnesse shall not let c. but that he shall see his laws to have plain and true execution and his subjects to live in surety of their lands bodies and goods according to his said laws c. o 4 H. 7.12 c. 9. The 32. of King Hen. the 8. saies The King calling to mind c. that there is nothing within this Realm that conserveth loving subjects in more quietness rest peace and concord then the due just ministration of his laws c. The first Parliament of King James has The fundamentall and ancient lawes which this King as there is said expressed many waies how far he was from altering or innovating whereby c The peoples security of lands livings and priviledges both in generall and particular are preserved and maintained and by the abolishing or alteration of which it is impossible but that present confusion wil fall upon the whole State c. p 1 Jac. reg c. 2. Twice in Petition of Right is this expression and other the good Laws and Statutes once the laws custows once franchise of the land The conclusion is all which they humbly pray as their rights liberties according to the laws Statutes q 3 Car. Reg. If publike authority authority of Parliaments authority of the English Nation in all ages can make an authentike and valid testimony by that authority we see our Lawes are facred pious good mercifull and just their ends aym meerly at the peace and happinesse of the Nation the only ends which Lawes should aym at and these being had he must forfeit the Noble reason of man who desires a change which whensoever it shall happen by the judgement of a Parliament like the change of death must be fatal to the State Though here is already the weight I promised and such as all English men should allow I wil adde a testimony or two more of private men not of the profession yet no strangers in the Law as the most knowing Sir Henry Spelman Of all municipal lawes our law plain and without dresse as she is is the most noble Lady replete with all justice moderation and prudence c. As Sir Thomas Smith the people here are accustomed to live in such sort that the rich have no more advantage then the poor Dr. Cowel a most knowing Civilian very judicious in our laws sayes of the two Benches They decide all causes religiously according to the rescript of the Common law r Justit Angt. 24. sect 2. a most learned Knight of our age praises highly our forefathers for their vertue abroad and their exquisitenesse of counsel and judgement at home amongst whom as he in Livies expression The commands of the laws were ever more powerful then those of men and Iustice was administred with that sineerenesse and judgement you would believe it to have proceeded from Papinian himselfe of all men who are shall be or have been the most skilled in the laws Å¿ D. Rog. Twisden praefat ad Ll. Guil. 1. Hen. 1. Our laws are not written in any general tongue and so cannot easily be known by forreigners but by the effects long continuance here or acquaintance and seldome so strangers every where for the most part desiring to take notice of every thing else rather then of laws The French man who wrote the estates of the world discoursing of the charges practised in other provinces in his time sayes But the liberty of England is marveilous in this regard no Country any where being lesse charged t Les Esta c. p. sciâ—ur D. T. V. Y. v. Sir Rob. D alingt survâ—y of Tuscany The Lord of Argenton as much experienced as any man in his age or perhaps since who had seen Venice and the order of things there and praises it sufficiently yet speaks in his plain manner of England Now according to my judgement amongst all the Seigneuries of the world which I have had any knowledge of where the Commonwealth is best managed and where there is lesse violence used upon the people it is England u Liure 5. It was otherwise of France in the days of his Master Lewis the 11. In many places so grievous were the Taxes men women and children were forced to draw the plough by their necks and that by night for fear of the Collectors w P. Mat. Lon. 11. If we look upon the Peasants of France flead alive the Villano or Contadino of Italy either under the Spaniard or Venetian Where Fruit and Salades * Sir Rob. Dalingtons Survey of Tuscany nay and Asses dung all things whatsoever pay Tribute but mens sighs where one word gabelle is of the largest extent and more used then all the other in the Languages leave out the chains of the Turkish Gallies and the most sad thraldom of those Natives of America under the Spanish Conversion of the newest Fashion Baptized but as Bede says of the Protomartyr Albane in their own blood we shall finde nothing so miserable so unhappy in Nature Our Yeoman as Sir Tho Smith is a free Englishman a man well at ease and having honestly to live He savours says a Reverend Church man of our Nation of civility and good manners living in far greater reputation then the Yeoman in Italy France Spain Dr. Heyl. Geegr or Germany I may say for some of them more freely more plentifully then the Gentry of either Spain or Italy being able to entertain a stranger honestly dyet him plentifully and lodge him neatly We may read the words of a Parliament to this purpose after the discovery of the Powder-plot No Nation of the earth hath been blessed with greater benefits then this now enjoyeth x 3. Jac. and whatsoever benefits we have received we owe them all to the Laws they are derived to us thence we can attribute them to nothing else Honour given to the Professors of the Laws As Justice is the most excellent of all vertues seated in the Will as more sedate and nearer to the reason its object being the profit of others So it is with good cause preferred before Fortitude as Peace before War which ought to be ruled by a certain Justice and if all men were just there would be no need of Fortitude The ancient Chief Justice whatsoever may be talked of the Constable or others was the Great Officer of State and as he had more power so had he the precedency of all men else Odo Earl of Kent Chief Justice in the time of William the 1. is called Prince of the Palace by Ingulphus y