The History of the Worthies of England, Part 1 · Chapter 7
CHAPTER VII. Of Capital Judges, and Writers on the Common Law.
BY CAPITAL JUDGES, we understand not those who have power to condemn Offenders for Capital Faults, as all the Twelve Judges have (or any Serjeant commissioned, to ride the Circuit,) but the Chief Judges, who as Capital LETTERS stand in Power and Place above the rest, viz. 1. the Chief Justice of the Kings Bench. 2. of the Common Pleas, 3. the Chief Baron of the Exchequer, and the Learned Antiquary, Sr. Henry Spelman, *In his glossary verb, Justiciarius.avoweth the Title of Capital Justicers, properly applicable to these alone.
The Chief Justice of the Kings, or Upper Bench, is commonly called the Lord Chief Justice of England, a Title which the Lord Chancellor (accounting himself Chief in that kind) looks on, as an injurious usurpation. And many alive may remember how Sr. Edward Cook was accused to K. James, for so styling himself in the Frontespiece of his Reports, Part the Tenth and Eleventh, insomuch, that the Judg was fain to plead for himself, Erravimus cum Patribus, as who could have produced plenty of Precedents therein.
2. The chief Justice of the Common Pleas in Place beneath, is in Profit above the former. So that some have out of Designe quitted That, to accept of This: Amongst these was Sr. Edward Mountague, in the Raign of K. Henry the eighth, who being demanded of his Friends, the Reason of his Self-degradation? I am now (saith he) an Old Man, and love the Kitching above the Hall, the Warmest place best suiting my Age.
The Chief Baron is chiefly imployed in the Exchequer, to decide causes which relate to the Kings Revenue.
Their Brevia or Writts did commonly run with this Clause, That the Judg should have and hold his PLACE, quam diu se benè geserit, so long as he well behaved himself, on this Token, That Sr. John Walter, Lord chief Baron of the Exchequer, being to be outed of his Place, for adjudging the Loan-mony illegal, pleaded for himself; That he was guilty of no Misdemeanour, who had only delivered his Judgment according to his Conscience. Others are granted from the King, durante nostro beneplacito; to continue in their Office, during his will and pleasure.
We begin the Army of our Judges, (for some Few, like the Forlorne Hope, advance higher,) about the time of King Edward the first. It is impossible exactly to observe that Inn of Court, wherein each of them had his Education, especially some of them being so Ancient, that in their times, Lincolnes Inn and Greys Inn were Lincoln's Inn and Grey's Inn, I mean, belonged to those their Owners, from whom they had their Names, as being, before they were appropriated to the Students of our Municipall Lawes.
Here I will condemn my self, to prevent the condemning of others, and confesse our Characters of these Judges to be very brief and defective. Indeed, were the Subject we treat of overstrewed with Ashes, (like the floor of Bells Temple) it were easie to finde out and follow the Footsteps therein: But here is no such help to Trace the Footings of Truth, Time having almost out-worn all impressions thereof. I perceive though Judges leave more Land than Bishops, they leave lesse Memorialls behind them, of the time, place, and manner, when and where born, and dyed, and how they demeaned themselves.
In the same Topick with Judges, we have also placed such as have been Writers of our Common-Law, and such conjunction we hope) is no disparagement, considering many of them were Capital Judges, (as Broke, Dyer, Coke, &c.) and the rest, learned Men, of great repute in their Profession, insomuch that the Judges themselves, in several Cases, have submitted to their Judgments.
And here I can but admire at the comparative paucity of the Books of our Common-Law, in proportion to those written of the Civil and Canon Law. Oh how corpulent are the Corpus'es of both those Lawes. Besides their Shadows are far bigger than their Bodies; their Glosses larger than their Text.
Insomuch, that one may bury two Thousand pounds and upwards in the Purchase, and yet hardly compasse a Moity of them: whereas all the Writers of the Common-Law, (except they be much multiplyed very lately) with all the Year-Books belonging thereunto, may be bought for threescore pounds, or thereabouts, which with some men is an Argument, that the Common-Law imbraceth the most compendious course to decide Causes, and by the fewness of the Books, is not guilty of so much difficulty and tedious prolixity, as the common and civil Lawes.
Yet is it most true, that common Law-books are dearer than any of the same Proportion, Quot libri, tot librae, holdeth true in many, and is exceeded in some of them. Yea, should now an old common Law-book be new-printed, it would not quit cost to the PRINTRR, nor turn to any considerable account. For the Profession of the Law is narrow in it self, as confined to few persons, and those are already sufficiently furnished, with all Authors on that Subject, which with carefull keeping and good using, will serve them and their sons sons, unto the third Generation. So that a whole Age would not carry off a New Impression of an Ancient Law-book, and (quick return being the life of trading) the tediousness of the sale would eat up the profit thereof.
All I will adde is this, that, That TAYLOR, who being cunning in his Trade, and taking exact measure of a Person, maketh a suit purposely for him, may be presumed to fit him better than those, who, (by a general aim) at randome make Cloaths for him. In like manner, seing our municipal Law, was purposely composed by the Sages of this Land, who best knew the Genius of our Nation, it may be concluded more proper for our people, and more applicable to all the Emergencies in this half-Island, than the civil Law, made for the general Concernment of the whole Empire, by such who were unacquainted with the Particularities of our Land and Nation.