without triall justice shall not be sold nor deferred c. The observation of these Lawes was a condition of Peace which ever appeased the antient distempers and cemented what was loose and dis-joynted in the great body The Lawes toe of St. Edward are inserted into the oath of the Kings of England usually taken at their Coronations which were not onely superfluous and abundant but an impious vanity if there were no such lawes any where after the solemnity of this religious and sacred bond to be observed The manner of taking the Oath as we find is this The Archbishop asks the King VVhether he be willing to take the Oath usually taken by his Predecessors and whether the Lawes and Gustomes by the antient just and devout Kings granted to the people of England with the confirmation of his Oath he will grant and keep to the same people and especially the Lawes Customes and Liberties by the glorious King Edward to the Clergie and people granted d Ex libro regali After he is led to the high Altar where he swears to observe them c. Further so farre are some from allowing our Lawes to be Norman that they are of opinion the Normans received theirs from us as they most of their Customes being so derived as William of Rovel in his Preface to his Commentary upon the grand Customary Edward the Confessor being a long while in Normandy gave Lawes to the Normans and made the Customes of England and Normandy e D. Spel. gloss v. jurata which if it were not so nothing is lost by it nor does it make any of these truths suspitious * Sup. 55. that so few of these Lawes are come to our hands of which something is said before and of their Book-Cases or Judgments none at all There never could be any such Volumes of them heard of as are fancied besides the honest simplicity of the first ages and the strictnesse of rules spoke of writings and deeds either to pass Lands or Priviledges were not in use till King VVithred neer 700. years after our Saviour that King being so illiterate that he could not write his name as himself confesses f Concil Sax. 198 King Aelfred little lesse then two hundred years after this complaines of the ignorance then that there were scarcely any on this side Humber who could understand the ordinary common prayers or translate a piece of Latine into English but in the beginning of his reign on the South of the Thames he remembred not a man who could have done it g Ibid. 379 Epist Aelfredi ad Walsagepiscep and although this King of sacred memory if perhaps as I cannot thinke he was not the Solon and Arthitect of our Saxon English order yet a great restorer of it built gloriously upon the frame he found yet these were lesse then beginnings would likely have been where such a Prince had been the Workman he could not intend them the Danes like a fatall whirlewinde tearing up root and branch every where ruining had long before broke into the Land which two hundred yeers together they miserably harassed with whom he fought fifty six battells and as may be imagined had not leisure to performe the duties of peace but in his armes sometime hid in the poore shed of an Herdsman as the most knowing Knight a King without a Kingdome a Prince without people so that hee could not thinke of his Lawes h Concil 378. and although there was some breathing and the storm had some intermission some calmes were in the two hundred yeeres some in his reign yet such ravage and spoil had these barbarous theeves made and so universall might the Confusions and Disorders be we may conceive it would be the labour of no short peace to restore things fallen or shaken to their first condition without making any the least progression this being not to be done till the corruptions which warre licentiousnesse and carelesse negligence have bred in the parts most sound are plucked up and the weeds throwne out which must be the worke of time The proceedings too of the Saxons our Ancestors as M. Lambard in judgement was de plane and without solennity enough to cleare this though the Saxon Lawes then were enough for the Commonwealth yet they had no great extent whatsoever unto S. Edward gathered out of the Lawes of those who followed this King and saw more quiet dayes or out of the whole body of the Saxon Lawes could not reach farre but not out of any defect in the Law it selfe then the cause why the law runs in a larger channell and spreads into more veines now is not any artifice or injust dealing of those who practice it but the improvement of estates by good husbandry much traffique whence contracts are more frequent As Sir John Davies there is more Luxury and excesse in the world more force deceit and oppression more covetousnesse and malice breach of peace and trust which as they gather strength and multiply so must the laws there is a necessity that as these mischiefs increase there should be supplements of laws to meet with them Mr. Daniel observes of the Assize of Clarendon long after the Saxons that it consisted as it does of very few points and that the multitude of actions which followed in succeeding times grew out of new transgressions c. When the Romans were little better then shepheards and herdsmen it is said a few Ivory tables contained their laws after they came to be Lords of the world thousands of Books were writ of the Romans Civil Law Albericus Gentilis justly reprehends Ludovicus Vives who maintained as he that all things might be finished by a few laws as the same Mr. Lambard speaking of the Law of England positive or written Law neither is nor can be made such a perfect rule as that a man may thereby truly squâ—e out justice in al cases which may happen for written lawes must needs be made in generality and grounded upon that which happeneth for the most part because no wisdome of man can foresee every thing in particularity which experience and time doth beget i Archeior 76 77. There is a curse of peace the highest prosperity has its dangers there can be no safety in it the rich man is more infirm more unsound then the poore pride and malicious contention are diseases he is seldom free from it is well said of wicked men and their injustice there is need of many laws to bridle them of many Officers to execute of many lawyers to interpret those laws We know all laws come not in by heaps but as time corrupts things and new wrongs and offences are discovered by the same degrees Thus the Sumptuary laws amongst the Romans came in the Fabian of Plagiaries the Julian of publike or private force de ambitu and the rest all our Statute laws which are remedying So must it be and so it has been in all Commonwealths of
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
the nature and disposition of the people or whether they will breed any inconvenience or no but a custome never bindeth till it hath been tryed and approved time out of minde during which no inconuenience did arise for if it had been found inconvenient it had been used no longer but had been interrupted and so had lost the vertue of a Law This is declared to be so by the Lords and Commons in Parliament in the 25 yeare of King Henry the eight which I shall cite below and if the Judgements and Declarations of Parliaments be not regarded I know not what can give satisfaction * Vid. 3. c. Ancient liberties and customes which have been usitatae approbatae used and approved m c. 9. Stat. Mert. make the Common law The statute called dictum de Kenelworth speakes thus the party convict shall have judgement according to the custome of the land n 57 Hen. 3. c. 25. The 27 of King Edw. the first of Fines Contrary to the lawes of our Realme of ancient time used The 34 of the same King confirmes to all Clerks and Laymen their lawes liberties and free customes as largely and wholely as they have used to have the same at any time when they had them best o c. 4. law and custome of the Realme are made the same p 1. E. 2.34 E. 3. Abjuration is called custome of the Realme q 9. E. 2. c. 10. The 25 of King Edward the third saies According to be lawes of the land of old time used r C. 2. The title of the 27 of this King speaks in maintenance of the lawes and usages the Statute 36 of the same King Lawes Customes and Statutes Å¿ C. 15. Statute 42. according to the old law t C. 3. In the time of Richard the second Law and usage are the same u 1 R. 2. c. 2. It would be tedious to heap up more of this kinde I will only adde the declaration of the Houses of Parliament in the time of Henry the eight which is thus Their words being directed to that King This your Graces realme c. hath been and is free from subjection to any mans lawes but only to such as have been devised made and ordeined within this realme for the wealth of the same or to such other as by the sufferance of your Grace and your Progenitors the people of this your realme have taken at their free liberty by their owne consent to be used amongst them and have bound themselves by long use to the observance of the same c. as to the customed and ancient lawes of this realme originally established as laws of the same by the said sufferance consents and custome and none otherwise w 25. Hen. 8. c. 21. Now if what the people of England have taken up out of long use custome and consent be not good agreeable and convenient after so much and so long triall they would appear the most foolish of all people They would not deserve that free liberty which themselves by their repraesentors tell us at the submitting to and taking these lawes they had and if they be good agreeable and convenient they would appeare the most foolish of all people by their change No lawes ever were or can be made with more equity then these to which besides use and custom and experience free liberty and consent of those who were to observe them gave life There is custome of Courts which is law too part of the Common law x Plowd Com. 320. as the Statute of Kenelworth If any man shall take revenge because of the late stirres be shall be punished according to the custome of the Court c. y C. 26. Six times is the Common law called by Littleton common right It is sometimes called right sometimes justice z Mirc c. 2 Sec. 16. Fleta 6. c. 1. Mag. Ch. c. 29. Magna charta calls it justiciam vel rectum justice or right Westm 1. Common right and the King wills these are the words That the peace of holy Church and of the land bee well kept in all points and that common right be done to all as well to poore as rich c. later statutes have Justice and right a 1. R. 2. c. 2. full justice and right b 2. H. 4.1 good justice and even right c 7. H. 4. c. 1. Common droiture in a statute d West 1. c. 1. is rendred Justice according to the law and custome of England e 2 Just 161. called common right as the Lord Cooke Because the common law is the best and most common birth-right the Subject hath for the safegard and defence not only of goods lands and revenues but of his wife and children body life and fame also f 1 Just 142 2 Just 56. That which is called common right in the second of King Edward the third g C. 8. In the first of that King h C. 14. is called common law Not onely as Fortescue doe the lawes of England favour liberty i C. 42. But they are notioned by the word The word liberties in Magna Charta signifie the lawes k C. 1.29 and in that respect is the great charter called the charter of the liberties l 2 Just 47 The Statute de Tallagio non concedendo has these words That all the Clerkes and Laymen of our realme have all their lawes liberties and free customes c. m C. 4. In the 38 of Edward the third the Laws are called Franchises in the old Bookes the great Charter the fountain of all our * Just 81. Foundamentall Lawes is called the Charter of Franchises the common Liberty the Liberties of England n Bract. 291 414. Pleta l. 2. c. 48 Brit. 178 because so the Lord Cooke they make frecmen o 1 Jnst 1 The customes of England bring a freedome with them therefore in Magna Charta are they called Free Customes p 2 Just 47. Mag. Char. c. 29. the Courts of Justice are also called Liberties because in them as the same book the Law which maketh free-men is administred q Mich. 17. Epist 1. in com berot 221. 2. 2 Jnst 4. the Law then is Liberty it selfe Liberty and Law are convertible nor is this Liberty titular onely and a Liberty of words In the expressions of the Petition of right out of Magna Charta cited in the first Chapter and out of the 28 of Edward the third No free man shall be taken imprisoned or disseased c. but by lawfull judgement or by Law of the land and no man of what estate or condition soever shall be put out of his lands or tenements nor taken imprisoned nor dis-herited nor brought to death without being brought to answer by due process of Law which is as after in that Petition of right either Customes of England or Acts of Parliament r 3 Car. Reg
my Cottages c. together with my Piscaries as well in the marches adjâ—cent as in the sea coming up to the same Town c p Ingulph 913 914. Plain denotations of the Villein regardant this was done in the tenth yeer of Edward the Confessor fifteen yeers before the Conquest and unlikely those rents services and the villeinage of these men should begin the day before the grant This Ingulphus himselfe makes plain It is sayes he to be declared that in the seat of Crowland villeins borders nor Sochmans are not received unlesse out of fear of war over our heads q p. 911. I should think this Sochman very base neither of much esteeme nor freedome where he is so ranked and keeps such company as in these places Nor here was our law more inhumane then those of all other Christian Nations The Civil law suffered this slavery till Justinian by a general Edict restored al men to their freedome it was frequent in Germany till the reign of Lodowick the second The villains there were affranchised with reservation of day works and Escheates which hold yet in the low Countries and in France c. saies Bodin r Republ. luire 1. In Poland the Villein is yet in being he is called there Kmetos and may be killed by his Lord. Lewis Hutin freed many of these from their servile condition in France Humbert those of Dauphine Thibalt of Blois those of his Countrey Charles the seventh of France others Henry the second the Bourbonnois Emanuel Philibert of Savoie did the same in his Countries The Lord of la Roche Blanch in Guascgogne Å¿ An. 1558. in Boains time pretended not only a right of succession to the goods of his Subjects so the Peasant or Vassall under the jurisdiction of any Lord is called called by the French main-morte but also that they were bound to plant his Vines till his Fields mow his Meadowes reape and thresh his Corne build his House to pay his ransome and the taille in the four cases anantiently accustomed viz. for Knighting the Kings eldest Sonne marriage of his Daughters voyage over Sea and Captivity and if they stragled out of his Lands without his leave to bring them backlike Beasts with halters about their necks which last part was cut off by arrest of the Parliament of Tholouse By all this it is manifest in these things there is nothing singular nothing without example the greatest could be given and let the Normans and their entrance be as injust as is imaginable never to be forgiven such as no satisfaction can expiate These are no crimes of that Conquest and ought not to be involved in the name CHAP. III. Of the Courts of Justice of Suites of Counsellours of the Judges of Writs Pleadings the Termes of Art Hotomans censure of Littleton the common Lawes may easily be digested into method their principles and excellency in severall respects mercy c. confirmed by Parliaments and testimony of others not of the profession the professours honourable NO Nation can compare with us in the Justice and Majesty of our Courts Courts where so generall is their extent and power to redresse wrongs every man let the injury be what it could and done by whatsoever great injust man might be righted nor are there any Supernumeraries amongst them Courts of no use but to vex and intangle The first judges posito modo praetor aratro are said to give Lawes to administer Justice to the people while the Plough rested but upon the same reasons which make Lawes at first as is said plaine and simple multiply Courts must needs grow more numerous In the Saxons times besides the lesser Courts before discoursed of to relieve men at their owne doores There was but one high Court of Justice ever moving with the Prince which judged as Mr Lambard out of those Lawes of appeales forbidden where Justice might be had at home not only according to Right and Law Sup. 59. but also after equity and good conscience the words of the Lawes are unlesse he cannot find right at home or right be too heavie t Ll. Edg. c. Ll. cnum 16. in this Order faies the same Mr. Lambard and in these two sorts of Courts was all Justice administred till William the Conquerer w Arch. 20. and after him this Court continued under the chiefe Justice of England ordinarily which great Officer the first man next the King alone had the power of the Chief Justice of the Pleas of the Crown of the Chiefe Justice of the Common Pleas till the nineth of King Henry the third according to that of Magna Charta the Common Pleas shall no longer follow the Kings Court though this Charter was before granted by King John in the 17. of his reigne it should seem by the charge against that much wronged gallant man Hubert de Burgo chiefe Justice in King Iohns time and in the time of Henry the third after the death of William Earle of Pembroke chiefe Justice 4 H. 3. that this huge office was not shrunk that the chiefe Justice was then whole and intire x Ma. Pa. addiâ— 149. besides the pleas of the Crown and common pleas he had the power of the chiefe Baron of the Exchequer and of the master of the wards y Addit ubi sup and sometimes commands armies z Ma. Pa. 193. an imployment too much for one man and businesse too much for one Court Upon which reasons distribution of the jurisdiction was necessary which flowing after from one Fountain by many streams into several Courts is no small ease to the people and this additional alteration is the greatest improvement imaginable Hence are derived the Benches the Chancery and Exchequer of the excellency of which and other high Courss pipes communicating justice with more speed and facility over England I wil say something but briefly my ayme being to make a tryall whether those who are not to be moved else by any other way will trust and yield to their own eyes before which I would lay things as plainly and as openly as I can and shew them that if justice onely be desired the pursuit of which lawfully and civilly is faire and honest here it is to be had it can never be deficient if the execution of things be answerable to their institution Here it is commanded That justice be administred as well to the poor as to the rich without any respect to be had of persons a West 1. c. 1. Here is said It is provided agreed and granted that all men as well high as low shall have and receive justice b Stat. Marlb c. 1. The times had been unruly before and many of the great men saies the Statute would not submit to the justice of these Courts they would be judges in their own cases distrain men grievously and take such revenges as they thought fit c Stat. Marlb ibid. Here as another Statute The Justices
the undoing of both of them Gentlemen of a good and ancient family commanded the Lord Chancellour to assemble all the Justices of England before him upon conference to give their resolutions Which they did one Justice disagreeing Chudleight case in the same report is said to be so difficult and of so great consequence it was thought necessary that all the Justices of England openly in the Exchequer Chamber upon solemn Arguments should show their opinions in it where the chief Baron and Justice Walmesly are dissenters as also Justice Gawdy in part Till the first of king James there were but four Judges of either Bench and many times as the same Lord Cook k 4. Rep. Pâ—af in cases of great difficulty the Judges being equally divided in opinion the matter depended long undecided for prevention of which this King added a Judge to either Bench. Retractations may be allowed in law as well as in divinity a man may differ with himselfe believe and apprehend truely and ingenuously and with Judgement this way or that way and after when he shall hear the reasons of others and the same case debated solemnly by the most grave most wise and most reverend of the profession not onely startle and doubt but but believe and like the contrary of what he liked before truly and ingenuously still without any blemish of dishonesty or falsenesse to be stuck upon him for it truth is said to be the adaequation of the speech with the species and if here any miâ—take be as there may the falsenesse is in the notions not in the man who speaks and thinkâ— he speaks truth I know no reason where there is no leading judgement to sway why the professors of the lawes should certainly be supposed to know the right and on which side it is as if infallibility were so ready or likely to be where as the Mirrour joyns them There is no law nor usage and where there are no presidents to direct Cases not being included in any words of law may be compared with the reasons of other cases according to similitude fancied and opinion so produced is but an incertain and weak knowledge thus or thus which yet may well be otherwise every man knows how far the Topic argumentation comes short of the necessary further as Sir John Davies When is right or wrong manifested upon the comencement of a suit before it is known what can be alledged and proved by either party The Councellor when he is first reteined hears onely one part of the matter and that also from his Client who ever puts his case with the best advantage for himselfe after pleading of the parties when they are at issue when they have examined witnesses in course of equity or are discended to a tryal in course of law after publication and hearing in the one cause and full evidence delivered in the other then perhaps may the Councel of either side dicern the rigt from the wrong and not before But then are the causes come to their catastrophe and the Councellours act their last part l Praef. ded f. 6 7. Thus as there are diversities of opinions amongst the professours of the lawes we see there are invincible reasons why sometimes there must be such diversities and I would gladly know where there is any general agreement of mindes A great man of the Clergy but no great lover of the laws or lawyers notes one Judge very hastily determining against others do not Councels often do the same the later quite thwarting those which went before and what he grants are not Divines divided against Divines not only in things of Ceremonie but of Faith If we look upon other Arts and Sciences we might think all things made from Heraclitus his principles that strife was the father what dissonance of opinions what knots never to be untyed sayes the incomparable Petrarch upon the discourse of discord are there amongst the Philosophers Who can number the varieties of their Sects what conflicts amongst Rhetoricians what discords of all Arts what clamours amongst the Lawyers those of the Civil Imperial lawes how well they agree the immortality of causes proves Sick men can witnesse what concord there is amongst Physicians what unlikenesse of mindes is there about things sacred and Religion where the differences are oftner tryed in the field then in the Schools m Petr. de remed utr fort 429. l. 2. By no other law is it said is unlawful maintenance Champerty or buying Titles so severely punished as by ours By what other law askes the most learned Knight is the Plaintiffe for false clamours or injust vexation or the Defendant for pleading a false Plea amerced the amercements in Magna Charta of which hereafter were instituted to deter men from injust suits and defences n 2 Inst 28 the French impost of 100 sous upon the Processe is thought injust yet sayes the Republique never was any so necessary in this Realm where there are more suits then in the rest of Europe which have sprouted chiefly from the time of Charles the sixth when by Edict the ancient custome to condemn those in costs who had lost the cause was cassed o Bod. Rep. 889. By the Saxon lawes he that denyed another his right either in bocland or folcland before a Judge without any right forfeited to the king 30s so the next time the third time the kings oâ—er hyrnysse 120. s. for his contempt p Ll. Ina c. 8. Ll. Edu sen c. 2. Ll. Cnuti c. 7. such lawes as these which might fright troublesome spirits are of high necessity yet I think where mens own Consciences restrein them not the punishment of laws would not prevaile with all men Nor can we expect any continual peace from vexatious suits nor any security from delayes deceits in them till a Christian generous honesty diffuse it self every where and there be a general perfection of charity and love in every man which is not easily to be hoped for France may be famous for its sprightlinesse Spain for its gravity Germany for the arts what clime is renowned for any such honesty Unles the new Atlantis can be found again and its Idea of a Commonwealth the Magick Region of the Moon throughly discovered and it lye hid there Or * Euphorn Barclaie may be believed of his Lusinia so unlike the whole world beside Of which that it breeds men worthy the genius of the place and of their own fortune for so he says if it be the Country some think he means he may be credited for the rest of the innocency piety of the people it is more then I can say of my own knowledge and I would lead no mans Faith where things are not plain and certain Other causes of multiplicity of suits in these latter ages are observed by the Lord Cooke to be first peace noted before * c. 2. In the reigns of the kings Edward the 3. Richard the 2