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
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
is to buy by the lump tenuta seisin venter a woman with childe or as Alciate a posthumus fusiones publique Functions Whoso shall turn over the Laws of the Frankes Lombards Boiorians and other of the Teutonick Nations he will meet Mormoes and Goblins formidable indeed such as the most knowing glossaries must be contented to recite only or wisely to passe by in sacred silence which yet will be read by those who admire not themselves and their own age too much who will allow in some proportion both wisdom and civility to their forefathers and are curious to be satisfied how they lead their lives upon what policie and order the Empire of the German Franks Lombards rose and moved for however governments may begin Justice good lawes assure them give them vigour and continuance lasting violence had been a fire which suddenly would have burnt their Trophies these German Conquerours how fierce soever they seem in their first appearance of all which might be said which is related of Mezentius Dextra mihi deus c. Or the Quadi a part in that Eductis mucronibus quos pro numine colebant the sword was their deity spent the yeers of their entrance into their Provinces to compose mindes their first peace and rest from the turmoils of war was ever dedicated to the polishing and smoothing of those foundations which else laid with too hasty and too rough an hand would have fallen alone Augustus was more happy in his moderation then in his victories it might be thought he subdued his Country to preserve it his peace was so sweetned by the equity and clemency of his laws that all the calamities of the triumvirate and its proscriptions were forgotten no tears were left but such as the whole world powred out to his memory There is its honour due to antiquity yet there may be met with in the lawes of these people though they seem what Du Bartas speakes of Marots verse torne Monuments and age worne Images that policy and excellency of constitution which if we will not imitate perhaps we can never exceed It is observed for the honour of our English that an Earle of Arundel in his travels to Italy and the Lord William Howard in his Government of Calice although they understood other languages would not speak to any stranger but in their English And that Cardinal Woolsey in his French Embassie would not suffer his attendance to speak any tongue else to the French And I know not why our English where it is more pure and lesse corrupt where it is a mother tongue and the best Dialect of a mother tongue should not have the esteem it is worthy of It was made none of the least of venerable Bede's praises that he was learned in it A great man before mentioned rather transported with choller against som of the Profession and indirectly I thinke then out of his own judgement is very angry at the Law which he says cannot passe the Seas It were wonderful if it shou'd who looks that neighbourhood alone should make Nations like the same things I have shewn already what great agreement there is betwixt the French and us enough to make it evident they and we had but one stock in Constitutions more ancient then the Civill Law there and it takes off nothing though our Law would not be known in the Courts at Paris This Author grants no man he sayes can deny it it is a sacred both Thing and Title our professors wil not envy the learning of Brissonius his Lexicon or his formulae so much praised and it is confessed we cannot shew any Terms of law like them yet are ours to as much purpose they interpret the words of art of our homebred Lawes and I cannot tell what is to be required more All men may know that as there have been additionary Laws since the Saxons so have there necessarily been additionary termes since which according to the custome of the times when the Law began to speak French were French and when they began as good perhaps and as pure French as any then spoken The leagues and agreements concerning the Sea betwixt King Edward the first and other Princes shew what the old French was by these words soffrera souccours resceipts Pees Trewes subgitz forspris nadgairts c. x D. Seld. Ma. Claeus 267 276. The Lord of Argentons History much later manifests what the language was and how it has changed These terms are so enterwoven as the Lord Coke into the Lawes they cannot possibly be changed I wil appeal to any man who understands the modern French for many of them are yet retained by it whether any words can more aply hit the sense which these signifie there is a supposition where these objections lie that if the great Lawyers abroad should come hither much amazed they would stand at our voucher cited for a big word like to tear the ear but unluckily brought in it is yet in the French advocare to vouch call in aide in a suit and certainly was understood by some of the great Lawyers Rigaude and Bignon being such as had the word bene antique indeed would not have been amazed at it They were not confined within the knowledge of their own age onely what is much to Bignon's honour Sir Hen. Spelman acknowledges himselfe owing to him for many things in his Glossary Garrantie is the same yet with our Warranty Pleviner to plevin give surety saisine is yet seifin rebutter to repell as the heir with us is repelled by the Warranty of his ancestors Larcin is theft fellony robbery fee demain or domain prescription Escbet rent as we use them nampt is our naam halfe withernam a distresse briga with which by this author in another place the professours of our Lawes are reproached and have the stile of his barbarians has been continued amongst them ever since Edw. the 3. before which it was but rarely used yet is in the modern French viz. brigue for it signifying contention or wrangling The onely man abroad who may seem an adversary is Hotomanne a Civilian very learned but I believe not at all in our laws a man of a peevish heady temper who writ against his own State and fled for it yet is he not so much an enemy to the Laws of England as to Litleton's tenures the book so called which very probably he never understood in his Comentary of the feudall word in the word feudum he writes thus Stephane Pasquier a man of an excellent wit c. gave me an English Litleton in which the Laws of the English feuds are discoursed written so rudely absurdly and without method that it appeareth easily to be true which Polydore Virgil in the English History writes That foolishnesse in that book contends with malice and the study to calumniate Here is his own judgement seconded with the censure of that uncleane beast Polydore whofreely indeed as is said railes in that book against
of our old English Church he that killed a man in publike war was enjoyned a penance of 40 daies l Concil sax 383. By the Common law killing by misadventure or in a mans own defence was murder founded upon the judicial law before the Cities of refuge the forfeiture of both was as in the case of murder before the Statutes of Marlebr and Gloucest the forfeiture of goods and chattels remaines yet If he that kills by misadventure escapes the Towne where the Fact was committed is to be amerced m Fitzher Corone 302 2. Iust 148 149. So where the killing is se defendendo n 2. Inst 315. Mens lives are so precious in the Law that the death of a man cannot be justified the Defendant in an appeale cannot justifie the death se defendendo but must plead not guilty o B. Appeal 122. A verdict that A. killed B. se defendendo is not good the special matter must be set down that the Court may adjudge the killing to be upon inevitable necessity p Corone 302 Maiming wounding menace of life and member in defence of the possession of Lands or Goods is not justifiable An infant of nine yeers killed another infant and hid him c. the opinion of the Justices was that he should be hanged but execution wat respited c. q Corone 57 3. H. 7 d. 12 If a man be drowned by mischance in any pit not fenced the Town is to be amerced r Coroue 304.320 v. 339.402 421. so where a man dyed suddenly of a Feaver and was buried without viewing by the Coronour Å¿ ibid. 329. a Lunatick kills a man he must sue for his Charter of pardon t ibid. 351. And where the worst of men suffer those punishments which Justice inflicts which it were cruelty destructive to Government and Society to forbear it is well said to punish the Homicide and sacrilegious is not effusion of blood but ministery of the Lawes I say where justice doe strike it is with an humane severity the offender with us does not carry to the place of execution his own Crosse he is not first whipped then nailed naked to the unhappy tree as it is called we have no Italum Robur Robur or strong hold as it is Englished in a stinking prison horrible for darknesse where malefactors necks were broke by tumbling them headlong from the stock of a tree there fastned in the earth No rack or brake where the party innocent oftentimes was tormented till he accused and condemned himselfe being hoised upon it and fastned with ropes to it his hands at the upper part and feet at the nether part his joynts were not onely racked but the tormentors oft burnt and tore the flesh from his sides with hot plates and Iron pincers Those who would have introduced the Civil law in the time of King Hen. the 6. brought the rack into the Tower * 3 Just c. 1. as a beginning to it Hereupon as is observed the most reverend Sir Iohn Fortescue Chancellor or rather chiefe Justice of England writ in commendations of our Lawes where he maintains that all tortures are contrary to them There is no Law saies the Lord Coke to warrant them in this land Although there were no ful proofs against some of those horrible miners in the Gunpowder treason yet was it not thought fit if the discovery could be made any other way to take the extraordinary of the rack Some other legalartes were used yet I cannot tell what could have been extraordinary or illegall in the case of such Hellish parricides who if they could superas evadere ad auras and assume bodies could not much exceed themselves Garnet and Hall betrayed themselves by their own conference which was permitted to catch them That conference is called by the Earle of Salisbury The finger of God Thereby so he tels Garnet the Lords had some proofe of matter against him which must have been discovered otherwise by violence and coertion a matter saies the Earle ordinary in other Kingdoms but forborn here c. v Proceed against the Gunpowder Traytors He addes His Majesty King James and the Lords were wel contented to draw all from Garnet without racking or any such bitter torments We have no dejectio è soxe like that headlong throwing down from a rock in the Tarpeian mount Nothing like the Gemonian staires whether the malefactour was either dragged * According to Tacitus Aun l 5. and cast into the Teuere It is said there was not so much left of Sejanus untorne by the people which the Hangman might fix his hook on to draw into the River or as others haled by the Executioners hook thrust into his throat and having his thighs broken burnt clad in a coat dawbd on the inside with pitch and brimstone We have no sawing asunder from the head downward no condemning to a Fencing schoole to beasts mines or mettals no banishment deportation no most barren Gyaros to confine men to not so much as relegation is known in our Lawes No empaling no wheele No deflowring Virgins by the Hangman before they be put to * Quia in auditum saies Tacitus trium virali supplicio virginem affici it had bin far lesse to have broke the custome then to â—â—de this â—â—k â—o keep it L. 5. Ann. death Before Villainage expired here the villain might bind his Lord to the peace he could not kill him if he maimed him he might be indicted fined and ransomed By Magna Charta which is affirmance of the Common law No free man is to be amerced but according to the manner of his offence Misericordia is the word used for amercement there must be mercy in it saving his countenance salvo contenmento c. the Merchant saving his Merchandise the villain his wainage x Chap. 14 Glanu l. 9. c. 11. No amercement is to be set here upon private men but by affeerours who are to affirm upon oath what penalty the offender has deserved as Bracton to doe things fairly neither carried away out of love nor hatred The Writ of Moderata misericordia of moderate amercement is grounded upon this Statute which it reciteth and gives remedy to the party who is excessively amerced If the Jury give excessive damages against any man Attaint lyes usury is not to run against the heir within age y Stat. Mert. c. 56 among the Saxons it was unlawfull hence where rent is to be doubled for default of payment it shall not be doubled during minority of the heir Distresses are to be reasonable and if there be any other chattels sufficient sheep and beasts of the plough are not to be touched It would be infinite to goe on I should as we say not onely want day but a long life were too short to make a survey of all the parts to contract all the graces of this body and pourtray them so that they may be a little and
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
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