A DIALOGUE BETWEEN A PHILOSOPHER & A STUDENT OF THE COMMON LAWS OF ENGLAND.

3A DIALOGUE

OF

THE COMMON LAW.

Of the law of reason.

Lawyer. What makes you say, that the study of the law is less rational than the study of the mathematics?

Philosopher. I say not that; for all study is rational, or nothing worth: but I say, that the great masters of the mathematics do not so often err as the great professors of the law.

L. If you had applied your reason to the law, perhaps you would have been of another mind.

P. In whatsoever study, I examine whether my inference be rational: and have looked over the titles of the statutes from Magna Charta downward to this present time. I left not one unread, which I thought might concern myself; which was enough for me, that meant not to plead for any but myself. But I did not much examine which of them was more or less rational; because I read them not to dispute, but to obey them, and saw in all of them sufficient reason for my obedience, and that the same reason, though the Statutes themselves were changed, remained constant. I have also diligently read over Littleton’s book of Tenures, with the commentaries thereupon of the renowned lawyer Sir Edward Coke; in which I confess I found great subtilty, not of the law, but 4of inference from law, and especially from the law of human nature, which is the law of reason: and I confess that it is truth which he says in the epilogue to his book, that by arguments and reason in the law, a man shall sooner come to the certainty and knowledge of the law: and I agree with Sir Edward Coke, who upon that text farther says, that reason is the soul of the law; and upon section 138, nihil, quod est contra rationem, est licitum; that is to say, nothing is law that is against reason; and that reason is the life of the law, nay the common law itself is nothing else but reason; and upon section 21, æquitas est perfecta quædam ratio, quæ jus scriptum interpretatur et emendat, nulla scriptura comprehensa, sed solum in vera ratione consistens; i. e. Equity is a certain perfect reason, that interpreteth and amendeth the law written, itself being unwritten, and consisting in nothing else but right reason. When I consider this, and find it to be true, and so evident as not to be denied by any man of right sense, I find my own reason at a stand; for it frustrates all the laws in the world. For upon this ground any man, of any law whatsoever, may say it is against reason, and thereupon make a pretence for his disobedience. I pray you clear this passage, that we may proceed.

L. I clear it thus, out of Sir Edward Coke (I. Inst. sect. 138), that this is to be understood of an artificial perfection of reason, gotten by long study, observation, and experience, and not of every man’s natural reason; for nemo nascitur artifex. This legal reason is summa ratio; and therefore if all the reason that is dispersed into so 5many several heads, were united into one, yet could he not make such a law as the law of England is; because by so many successions of ages it hath been fined and refined by an infinite number of grave and learned men.

P. This does not clear the place, as being partly obscure, and partly untrue. That the reason which is the life of the law, should be not natural, but artificial, I cannot conceive. I understand well enough, that the knowledge of the law is gotten by much study, as all other sciences are, which when they are studied and obtained, it is still done by natural, and not by artificial reason. I grant you, that the knowledge of the law is an art; but not that any art of one man, or of many, how wise soever they be, or the work of one or more artificers, how perfect soever it be, is law. It is not wisdom, but authority that makes a law. Obscure also are the words legal reason. There is no reason in earthly creatures, but human reason. But I suppose that he means, that the reason of a judge, or of all the judges together without the King, is that summa ratio, and the very law: which I deny, because none can make a law but he that hath the legislative power. That the law hath been fined by grave and learned men, meaning the professors of the law, is manifestly untrue; for all the laws of England have been made by the kings of England, consulting with the nobility and commons in parliament, of which not one of twenty was a learned lawyer.

L. You speak of the statute law, and I speak of the common law.

P. I speak generally of law.

6L. Thus far I agree with you, that statute law taken away, there would not be left, either here, or any where, any law at all that would conduce to the peace of a nation; yet equity and reason, (laws Divine and eternal, which oblige all men at all times, and in all places), would still remain, but be obeyed by few: and though the breach of them be not punished in this world, yet they will be punished sufficiently in the world to come. Sir Edward Coke, for drawing to the men of his own profession as much authority as lawfully he might, is not to be reprehended; but to the gravity and learning of the judges they ought to have added in the making of laws, the authority of the King, which hath the sovereignty: for of these laws of reason, every subject that is in his wits, is bound to take notice at his peril, because reason is part of his nature, which he continually carries about with him, and may read it, if he will.

P. It is very true; and upon this ground, if I pretend within a month or two to make myself able to perform the office of a judge, you are not to think it arrogance; for you are to allow to me, as well as to other men, my pretence to reason, which is the common law, (remember this, that I may not need again to put you in mind, that reason is the common law): and for statute law, seeing it is printed, and that there be indexes to point me to every matter contained in them, I think a man may profit in them very much in two months.

L. But you will be but an ill pleader.

P. A pleader commonly thinks he ought to say all he can for the benefit of his client, and therefore has need of a faculty to wrest the sense of 7words from their true meaning, and the faculty of rhetoric to seduce the jury, and sometimes the judge also, and many other arts which I neither have, nor intend to study.

L. But let the judge, how good soever he thinks his reasoning, take heed that he depart not too much from the letter of the statute: for it is not without danger.

P. He may without danger recede from the letter, if he do not from the meaning and sense of the law; which may be by a learned man, (such as judges commonly are,) easily found out by the preamble, the time when it was made, and the incommodities for which it was made. But I pray tell me, to what end were statute laws ordained, seeing the law of reason ought to be applied to every controversy that can arise.

L. You are not ignorant of the force of an irregular appetite to riches, to power, and to sensual pleasures, how it masters the strongest reason, and is the root of disobedience, slaughter, fraud, hypocrisy, and all manner of evil habits; and that the laws of man, though they can punish the fruits of them, which are evil actions, yet they cannot pluck up the roots that are in the heart. How can a man be indicted of avarice, envy, hypocrisy, or other vicious habit, till it be declared by some action which a witness may take notice of? The root remaining, new fruit will come forth, till you be weary of punishing, and at last destroy all power that shall oppose it.

P. What hope then is there of a constant peace in any nation, or between one nation and another?

L. You are not to expect such a peace between 8two nations; because there is no common power in this world to punish their injustice. Mutual fear may keep them quiet for a time; but upon every visible advantage they will invade one another; and the most visible advantage is then, when the one nation is obedient to their king, and the other not. But peace at home may then be expected durable, when the common people shall be made to see the benefit they shall receive by their obedience and adhesion to their own sovereign, and the harm they must suffer by taking part with them, who by promises of reformation, or change of government, deceive them. And this is properly to be done by divines, and from arguments not only from reason, but also from the Holy Scripture.

P. This that you say is true, but not very much to that I aim at by your conversation, which is to inform myself concerning the laws of England. Therefore I ask you again, what is the end of statute-laws?

Of sovereign power.

L. I say then that the scope of all human law is peace, and justice in every nation amongst themselves, and defence against foreign enemies.

P. But what is justice?

L. Justice is giving to every man his own.

P. The definition is good, and yet it is Aristotle’s. What is the definition agreed upon as a principle in the science of the common law?

L. The same with that of Aristotle.

P. See, you lawyers, how much you are beholden to the philosopher; and it is but reason; for the more general and noble science and law of all the world, is true philosophy, of which the common law of England is a very little part.

9L. It is so, if you mean by philosophy nothing but the study of reason; as I think you do.

P. When you say that justice gives to every man his own, what mean you by his own? How can that be given me, which is my own already? Or, if it be not my own, how can justice make it mine?

L. Without law, every thing is in such sort every man’s, as he may take, possess, and enjoy, without wrong to any man; every thing, lands, beasts, fruits, and even the bodies of other men, if his reason tell him he cannot otherwise live securely. For the dictates of reason are little worth, if they tended not to the preservation and improvement of men’s lives. Seeing then without human law all things would be common, and this community a cause of encroachment, envy, slaughter, and continual war of one upon another, the same law of reason dictates to mankind, for their own preservation, a distribution of lands and goods, that each man may know what is proper to him, so as none other might pretend a right thereunto, or disturb him in the use of the same. This distribution is justice, and this properly is the same which we say is one’s own; by which you may see the great necessity there was of statute laws, for preservation of all mankind. It is also a dictate of the law of reason, that statute laws are a necessary means of the safety and well-being of man in the present world, and are to be obeyed by all subjects, as the law of reason ought to be obeyed, both by King and subjects, because it is the law of God.

P. All this is very rational; but how can any laws secure one man from another, when the greatest part of men are so unreasonable, and so 10partial to themselves as they are, and the laws of themselves are but a dead letter, which of itself is not able to compel a man to do otherwise than himself pleaseth, nor punish or hurt him when he hath done a mischief?

L. By the laws, I mean laws living and armed. For you must suppose, that a nation that is subdued by war to an absolute submission to a conqueror, may, by the same arm that compelled it to submission, be compelled to obey his laws. Also, if a nation choose a man, or an assembly of men, to govern them by laws, it must furnish him also with armed men and money, and all things necessary to his office; or else his laws will be of no force, and the nation remains, as before it was, in confusion. It is not therefore the word of the law, but the power of a man that has the strength of a nation, that make the laws effectual. It was not Solon that made Athenian laws, though he devised them, but the supreme court of the people; nor, the lawyers of Rome that made the imperial law in Justinian’s time, but Justinian himself.

P. We agree then in this, that in England it is the King that makes the laws, whosoever pens them; and in this, that the King cannot make his laws effectual, nor defend his people against their enemies, without a power to levy soldiers; and consequently, that he may lawfully, as oft as he shall really think it necessary to raise an army, (which in some occasions be very great) I say, raise it, and money to maintain it. I doubt not but you will allow this to be according to the law, at least of reason.

L. For my part I allow it. But you have heard 11how, in and before the late troubles the people were of another mind. Shall the King, said they, take from us what he pleases, upon pretence of a necessity whereof he makes himself the judge? What worse condition can we be in from an enemy? What can they take from us more than what they list?

P. The people reason ill. They do not know in what condition we were, in the time of the Conqueror, when it was a shame to be an Englishman; who, if he grumbled at the base offices he was put to by his Norman masters, received no other answer than this, thou art but an Englishman. Nor can the people, nor any man that humours their disobedience, produce any example of a King that ever raised any excessive sums, either by himself or by the consent of his Parliament, but when they had great need thereof; nor can show any reason that might move any of them so to do. The greatest complaint by them made against the unthriftiness of their Kings, was for the enriching now and then a favourite, which to the wealth of the kingdom was inconsiderable, and the complaint but envy. But in this point of raising soldiers, what is, I pray you, the statute law?

L. The last statute concerning it, is 13 Car. II. cap. 6, by which the supreme government, command, and disposing of the militia of England, is delivered to be, and always to have been, the ancient right of the Kings of England. But there is also in the same act a proviso, that this shall not be construed for a declaration, that the King may transport his subjects, or compel them to march out of the kingdom; nor is it, on the contrary, declared to be unlawful.

12P. Why is not that also determined?

L. I can imagine cause enough for it, though I may be deceived. We love to have our King amongst us, and not to be governed by deputies, either of our own or another nation. But this I verily believe, that if a foreign enemy should either invade us, or put himself into a readiness to invade either England, Ireland, or Scotland, no Parliament then sitting, and the King send English soldiers thither, the Parliament would give him thanks for it. The subjects of those Kings who affect the glory, and imitate the actions, of Alexander the Great, have not always the most comfortable lives, nor do such Kings usually very long enjoy their conquests. They march to and fro perpetually, as upon a plank sustained only in the midst; and when one end rises, down goes the other.

P. It is well. But where soldiers, in the judgment of the King’s conscience, are indeed necessary, as in an insurrection, or rebellion at home; how shall the kingdom be preserved without a considerable army ready and in pay? How shall money be raised for this army, especially when the want of public treasure inviteth neighbour Kings to encroach, and unruly subjects to rebel?

L. I cannot tell. It is matter of polity, not of law. But I know, that there be statutes express, whereby the King hath obliged himself never to levy money upon his subjects without the consent of his Parliament. One of which statutes is 25 Edw. I. c. 6, in these words: We have granted for us, and our heirs, as well to archbishops, bishops, abbots, priors, and other folk of holy Church, as also to earls, barons, and to all the commonalty 13of the land, that for no business from henceforth, we shall take such aids, tasks, or prizes, but by the common consent of the realm. There is also another statute of Edward I. (34 Edw. I. stat. 4) in these words: No tallage, or aid shall be taken or levied by us or our heirs in our realm, without the good will and assent of the archbishops, bishops, earls, barons, knights, burgesses, and other freemen of the land; which statutes have been since that time confirmed by divers other Kings, and lastly by the King that now reigneth.

P. All this I know, and am not satisfied. I am one of the common people, and one of that almost infinite number of men, for whose welfare Kings and other sovereigns were by God ordained: for God made Kings for the people, and not people for Kings. How shall I be defended from the domineering of proud and insolent strangers that speak another language, that scorn us, that seek to make us slaves, or how shall I avoid the destruction that may arise from the cruelty of factions in a civil war, unless the King, to whom alone, you say, belongeth the right of levying and disposing of the militia by which only it can be prevented, have ready money, upon all occasions, to arm and pay as many soldiers, as for the present defence, or the peace of the people, shall be necessary? Shall not I, and you, and every man be undone? Tell me not of a Parliament, when there is no Parliament sitting, or perhaps none in being, which may often happen. And when there is a Parliament, if the speaking and leading men should have a design to put down monarchy, as they had in the Parliament which began to sit the third of November, 1640, 14shall the King, who is to answer to God Almighty for the safety of the people, and to that end is intrusted with the power to levy and dispose of the soldiery, be disabled to perform his office, by virtue of these acts of Parliament which you have cited? If this be reason, it is reason also that the people be abandoned, or left at liberty to kill one another, even to the last man; if it be not reason, then you have granted it is not law.

L. It is true, if you mean recta ratio; but recta ratio, which I grant to be law, as Sir Edward Coke says, (1 Inst. sect. 138), is an artificial perfection of reason, gotten by long study, observation, and experience, and not every man’s natural reason; for nemo nascitur artifex. This legal reason is summa ratio; and therefore, if all the reason that is dispersed into so many several heads, were united into one, yet could he not make such a law as the law of England is, because by many successions of ages it hath been fined and refined by an infinite number of grave and learned men. And this is it, he calls the common law.

P. Do you think this to be good doctrine? Though it be true, that no man is born with the use of reason, yet all men may grow up to it as well as lawyers; and when they have applied their reason to the laws, (which were laws before they studied them, or else it was not law they studied), may be as fit for and capable of judicature, as Sir Edward Coke himself, who whether he had more or less use of reason, was not thereby a judge, but because the King made him so. And whereas he says, that a man who should have as much reason as is dispersed in so many several heads, could not 15make such a law as this law of England is; if one should ask him who made the law of England, would he say a succession of English lawyers or judges made it, or rather a succession of kings? And that upon their own reason, either solely, or with the advice of the Lords and Commons in Parliament, without the judges or other professors of the law? You see therefore that the King’s reason, be it more or less, is that anima legis, that summa lex, whereof Sir Edward Coke speaketh, and not the reason, learning, or wisdom of the judges. But you may see, that quite through his Institutes of Law, he often takes occasion to magnify the learning of the lawyers, whom he perpetually termeth the sages of the Parliament, or of the King’s council. Therefore unless you say otherwise, I say, that the King’s reason, when it is publicly upon advice and deliberation declared, is that anima legis; and that summa ratio and that equity, which all agree to be the law of reason, is all that is or ever was law in England, since it became Christian, besides the Bible.

L. Are not the Canons of the Church part of the law of England, as also the imperial law used in the Admiralty, and the customs of particular places, and the by-laws of corporations and courts of judicature?

P. Why not? For they were all constituted by the Kings of England; and though the civil law used in the Admiralty were at first the statutes of the Roman empire, yet because they are in force by no other authority than that of the King, they are now the King’s laws, and the King’s statutes. The same we may say of the Canons; such of them 16as we have retained, made by the Church of Rome, have been no law, nor of any force in England, since the beginning of Queen Elizabeth’s reign, but by virtue of the great seal of England.

L. In the said statutes that restrain the levying of money without consent of Parliament, is there any thing you can take exceptions to?

P. No. I am satisfied that the kings that grant such liberties, are bound to make them good, so far as it may be done without sin: but if a King find that by such a grant he be disabled to protect his subjects, if he maintain his grant, he sins; and therefore may, and ought to take no notice of the said grant. For such grants, as by error or false suggestion are gotten from him, are, as the lawyers do confess, void and of no effect, and ought to be recalled. Also the King, as is on all hands confessed, hath the charge lying upon him to protect his people against foreign enemies, and to keep the peace betwixt them within the kingdom: if he do not his utmost endeavour to discharge himself thereof, he committeth a sin, which neither King nor Parliament can lawfully commit.

L. No man, I think, will deny this. For if levying of money be necessary, it is a sin in the Parliament to refuse; if unnecessary, it is a sin both in King and Parliament to levy. But for all that, it may be, and I think it is, a sin in any one that hath the sovereign power, be he one man or one assembly, being intrusted with the safety of a whole nation, if rashly, and relying upon his own natural sufficiency, he make war or peace, without consulting with such, as by their experience and employment abroad, and intelligence by letters, or other means, 17have gotten the knowledge in some measure of the strength, advantages, and designs of the enemy, and the manner and the degree of the danger that may from thence arise. In like manner, in case of rebellion at home, if he consult not with those of military condition; which if he do, then I think he may lawfully proceed to subdue all such enemies and rebels; and that the soldiers ought to go on without inquiring whether they be within the country, or without. For who shall suppress rebellion, but he that hath right to levy, command, and dispose of the militia? The last Long Parliament denied this. But why? Because by the major part of their votes the rebellion was raised with the design to put down monarchy, and to that end maintained.

P. Nor do I hereby lay any aspersion upon such grants of the King and his ancestors. Those statutes are in themselves very good for the King and the people, as creating some kind of difficulty for such Kings as, for the glory of conquest, might spend one part of their subjects' lives and estates in molesting other nations, and leave the rest to destroy themselves at home by factions. That which I here find fault with, is the wresting of those, and other such statutes, to the binding of our Kings from the use of their armies in the necessary defence of themselves and their people. The late Long Parliament, that in 1648 murdered their King, (a King that sought no greater glory upon earth, but to be indulgent to his people, and a pious defender of the Church of England,) no sooner took upon them the sovereign power, than they levied money upon the people at their own discretion. Did any of their subjects 18dispute their power? Did they not send soldiers over the sea to subdue Ireland, and others to fight against the Dutch at sea; or made they any doubt but to be obeyed in all that they commanded, as a right absolutely due to the sovereign power in whomsoever it resides? I say not this as allowing their actions, but as a testimony from the mouths of those very men that denied the same power to him whom they acknowledged to have been their sovereign immediately before; which is a sufficient proof, that the people of England never doubted of the King’s right to levy money for the maintenance of his armies, till they were abused in it by seditious teachers, and other prating men, on purpose to turn the State and Church into popular government, where the most ignorant and boldest talkers do commonly obtain the best preferments. Again, when their new republic returned into monarchy by Oliver, who durst deny him money upon any pretence of Magna Charta, or of these other acts of Parliament which you have cited? You may therefore think it good law, for all your books, that the King of England may at all times, that he thinks in his conscience it will be necessary for the defence of his people, levy as many soldiers and as much money as he please, and that himself is judge of the necessity.

L. Is there nobody hearkening at the door?

P. What are you afraid of?

L. I mean to say the same that you say: but there be very many yet, that hold their former principles, whom neither the calamities of the civil wars, nor their former pardon, have thoroughly cured of their madness.

19P. The common people never take notice of what they hear of this nature, but when they are set on by such as they think wise; that is, by some sorts of preachers, or some that seem to be learned in the laws, and withal speak evil of the governors. But what if the King, upon the sight or apprehension of any great danger to his people, (as when their neighbours are borne down by the current of a conquering enemy), should think his own people might be involved in the same misery; may he not levy, pay, and transport soldiers to help those weak neighbours, by way of prevention to save his own people and himself from servitude? Is that a sin?

L. First, if the war upon our neighbour be just, it may be questioned whether it be equity or no to assist them against the right.

P. For my part, I make no question of that at all, unless the invader will, and can, put me in security, that neither he nor his successors shall make any advantage of the conquest of my neighbour, to do the same to me in time to come. But there is no common power to bind them to the peace.

L. Secondly, when such a thing shall happen, the Parliament will not refuse to contribute freely to the safety of themselves and the whole nation.

P. It may be so, and it may be not; for if a Parliament then sit not, it must be called; that requires six weeks' time; debating and collecting what is given requires as much, and in this time the opportunity perhaps is lost. Besides, how many wretched souls have we heard to say in the 20late troubles; what matter is it who gets the victory? We can pay but what they please to demand, and so much we pay now. And this they will murmur, as they have ever done, whosoever shall reign over them, as long as their covetousness and ignorance hold together; which will be till doomsday, if better order be not taken for their instruction in their duty, both from reason and religion.

L. For all this I find it somewhat hard, that a King should have right to take from his subjects, upon the pretence of necessity, what he pleaseth.

P. I know what it is that troubles your conscience in this point. All men are troubled at the crossing of their wishes; but it is our own fault. First, we wish impossibilities; we would have our security against all the world upon right of property, without paying for it; this is impossible. We may as well expect that fish and fowl should boil, roast, and dish themselves, and come to the table, and that grapes should squeeze themselves into our mouths, and have all other the contentments and ease which some pleasant men have related of the land of Cocagne. Secondly, there is no nation in the world where he or they that have the sovereignty, do not take what money they please for the defence of those respective nations, when they think it necessary for their safety. The late Long Parliament denied this; but why? Because there was a design amongst them to depose the King. Thirdly, there is no example of any King of England that I have read of, that ever pretended any such necessity for levying money against his conscience. The greatest sums that ever were levied, comparing the value of money, as it was at that 21time, with what it is now, were levied by King Edward III and King Henry V; kings in whom we glory now, and think their actions great ornaments to the English history. Lastly, as to the enriching now and then a favourite, it is neither sensible to the kingdom, nor is any treasure thereby conveyed out of the realm, but so spent as it falls down again upon the common people. To think that our condition being human should be subject to no incommodity, were injuriously to quarrel with God Almighty for our own faults.

L. I know not what to say.

P. If you allow this that I have said, then say, that the people never were, shall be, or ought to be, free from being taxed at the will of one or other; that if civil war come, they must levy all they have, and that dearly, from the one or from the other, or from both sides. Say, that adhering to the King, their victory is an end of their trouble; that adhering to his enemies there is no end; for the war will continue by a perpetual subdivision, and when it ends, they will be in the same estate they were before. That they are often abused by men who to them seem wise, when then their wisdom is nothing else but envy of those that are in grace and in profitable employments; and that those men do but abuse the common people to their own ends, that set up a private man’s propriety against the public safety. But say withal, that the King is subject to the laws of God, both written and unwritten, and to no other; and so was William the Conqueror, whose right is all descended to our present King.

L. As to the law of reason, which is equity, it 22is sure enough there is but one legislator, which is God.

P. It followeth, then, that which you call the common law, distinct from statute law, is nothing else but the law of God.

L. In some sense it is; but it is not Gospel, but natural reason, and natural equity.

P. Would you have every man to every other man allege for law his own particular reason? There is not amongst men a universal reason agreed upon in any nation, besides the reason of him that hath the sovereign power. Yet though his reason be but the reason of one man, yet it is set up to supply the place of that universal reason, which is expounded to us by our Saviour in the Gospel; and consequently our King is to us the legislator both of statute-law, and of common-law.

L. Yes, I know that the laws spiritual, which have been law in this kingdom since the abolishing of popery, are the King’s laws, and those also that were made before. For the Canons of the Church of Rome were no laws, neither here, nor anywhere else without the Pope’s temporal dominions, farther than kings and states in their several dominions respectively did make them so.

P. I grant that. But you must grant also, that those spiritual laws were made by the legislators of the spiritual law.law. And yet not all kings and states make laws by consent of the Lords and Commons; but our King here is so far bound to their assents, as he shall judge conducing to the good and safety of his people. For example, if the Lords and Commons should advise him to restore those laws spiritual, which in Queen Mary’s time were in force, I think 23the King were by the law of reason obliged, without the help of any other law of God, to neglect such advice.

L. I grant you that the King is sole legislator; but with this restriction, that if he will not consult with the Lords of Parliament, and hear the complaints and informations of the Commons, that are best acquainted with their own wants, he sinneth against God, though he cannot be compelled to any thing by his subjects by arms and force.

P. We are agreed upon that already. Since therefore the King is sole legislator, I think it also reason he should be sole supreme judge.

The King is the supreme judge.

L. There is no doubt of that; for otherwise there would be no congruity of judgments with the laws. I grant also that he is the supreme judge over all persons, and in all causes civil and ecclesiastical within his own dominions; not only by act of Parliament at this time, but that he has ever been so by the common law. For the judges of both the Benches have their offices by the King’s letters-patent; and so as to judicature have the bishops. Also the Lord Chancellor hath his office by receiving from the King the Great Seal of England. And, to say all at once, there is no magistrate, or commissioner for public business, neither of judicature nor execution, in State or Church, in peace or war, but he is made so by authority from the King.

P. It is true; but perhaps you may think otherwise, when you read such acts of parliament, as say, that the King shall have power and authority to do this or that by virtue of that act, as Elizabeth c. I. “that your highness, your heirs, and 24successors, Kings, or Queens of this realm, shall have full power and authority, by virtue of this act, by letters-patent under the great seal of England, to assign, &c.” Was it not this Parliament that gave this authority to the Queen?

L. No. For the statute in this clause is no more than, as Sir Edward Coke useth to speak, an affirmance of the common-law. For she being head of the Church of England, might make commissioners for the deciding of matters ecclesiastical, as freely as if she had been Pope, who did, you know, pretend his right from the law of God.

P. We have hitherto spoken of laws without considering anything of the nature and essence of a law; and now unless we define the word law, we can go no farther without ambiguity and fallacy, which will be but loss of time; whereas, on the contrary, the agreement upon our words will enlighten all we have to say hereafter.

L. I do not remember the definition of law in any statute.

P. I think so: for the statutes were made by authority, and not drawn from any other principles than the care of the safety of the people. Statutes are not philosophy, as is the common-law, and other disputable arts, but are commands or prohibitions, which ought to be obeyed, because assented to by submission made to the Conqueror here in England, and to whosoever had the sovereign power in other commonwealths; so that the positive laws of all places are statutes. The definition of law was therefore unnecessary for the makers of statutes, though very necessary to them whose work it is to teach the sense of the law.

25L. There is an accurate definition of a law in Bracton, cited by Sir Edward Coke: Lex est sanctio justa, jubens honesta, et prohibens contraria.

P. That is to say, law is a just statute, commanding those things which are honest, and forbidding the contrary. From whence it followeth, that in all cases it must be the honesty or dishonesty that makes the command a law; whereas you know that but for the law we could not, as saith St. Paul, have known what is sin. Therefore this definition is no ground at all for any farther discourse of law. Besides, you know the rule of honest and dishonest refers to honour, and that it is justice only, and injustice, that the law respecteth. But that which I most except against in this definition, is, that it supposes that a statute made by the sovereign power of a nation may be unjust. There may indeed in a statute-law, made by men, be found iniquity, but not injustice.

L. This is somewhat subtile. I pray deal plainly. What is the difference between injustice and iniquity?

P. I pray you tell me first, what is the difference between a court of justice, and a court of equity?

L. A court of justice is that which hath cognizance of such causes as are to be ended by the positive laws of the land; and a court of equity is that, to which belong such causes as are to be determined by equity; that is to say, by the law of reason.

P. You see then that the difference between 26injustice and iniquity is this; that injustice is the transgression of a statute-law, and iniquity the transgression of the law of reason. But perhaps you mean by common-law, not the law itself, but the manner of proceeding in the law, as to matter of fact, by twelve men, freeholders; though those twelve men are no court of equity, nor of justice, because they determine not what is just or unjust, but only whether it be done or not done; and their judgment is nothing else but a confirmation of that which is properly the judgment of the witnesses. For to speak exactly, there cannot possibly be any judge of fact besides the witnesses.

L. How would you have a law defined?

P. Thus; a law is the command of him or them that have the sovereign power, given to those that be his or their subjects, declaring publicly and plainly what every of them may do, and what they must forbear to do.

L. Seeing all judges in all courts ought to judge according to equity, which is the law of reason, a distinct court of equity seemeth to me to be unnecessary, and but a burthen to the people, since common-law and equity are the same law.

P. It were so indeed, if judges could not err; but since they may err, and that the King is not bound to any other law but that of equity, it belongs to him alone to give remedy to them that, by the ignorance or corruption of a judge, shall suffer damage.

L. By your definition of a law, the King’s proclamation under the Great Seal of England is a 27law; for it is a command, and public, and of the sovereign to his subjects.

P. Why not, if he think it necessary for the good of his subjects? For this is a maxim at the common-law alleged by Sir Edward Coke himself, (I Inst. sect. 306), Quando lex aliquid concedit, concedere videtur et id per quod devenitur ad illud. And you know out of the same author, that divers Kings of England have often, to the petitions in Parliament which they granted, annexed such exceptions as these, unless there be necessity, saving our regality; which I think should be always understood, though they be not expressed; and are understood so by common lawyers, who agree that the King may recall any grant wherein he was deceived.

L. Again, whereas you make it of the essence of a law to be publicly and plainly declared to the people, I see no necessity for that. Are not all subjects bound to take notice of all acts of Parliament, when no act can pass without their consent?

P. If you had said that no act could pass without their knowledge, then indeed they had been bound to take notice of them; but none can have knowledge of them but the members of the houses of Parliament; therefore the rest of the people are excused. Or else the knights of the shire should be bound to furnish people with a sufficient number of copies, at the people’s charge, of the acts of Parliament, at their return into the country; that every man may resort to them, and by themselves, or friends, take notice of what they are obliged to. For otherwise it were impossible they should be 28obeyed: and that no man is bound to do a thing impossible, is one of Sir Edward Coke’s maxims at the common-law. I know that most of the statutes are printed; but it does not appear that every man is bound to buy the book of statutes, nor to search for them at Westminster or at the Tower, nor to understand the language wherein they are for the most part written.

L. I grant it proceeds from their own faults; but no man can be excused by ignorance of the law of reason, that is to say, by ignorance of the common-law, except children, madmen, and idiots. But you exact such a notice of the statute-law, as is almost impossible. Is it not enough that they in all places have a sufficient number of the penal statutes?

P. Yes; if they have those penal statutes near them. But what reason can you give me why there should not be as many copies abroad of the statutes, as there be of the Bible?

L. I think it were well that every man that can read, had a statute-book; for certainly no knowledge of those laws, by which men’s lives and fortunes can be brought into danger, can be too much. I find a great fault in your definition of law; which is, that every law either forbiddeth or commandeth something. It is true that the moral law is always a command or a prohibition, or at least implieth it. But in the Levitical law, where it is said that he that stealeth a sheep shall restore fourfold, what command or prohibition lieth in these words?

P. Such sentences as that are not in themselves general, but judgments; nevertheless, there is in 29those words implied a commandment to the judge, to cause to be made a fourfold restitution.

L. That is right.

P. Now define what justice is, and what actions and men are to be called just.

L. Justice is the constant will of giving to every man his own; that is to say, of giving to every man that which is his right, in such manner as to exclude the right of all men else to the same thing. A just action is that which is not against the law. A just man is he that hath a constant will to live justly; if you require more, I doubt there will no man living be comprehended within the definition.

P. Seeing then that a just action, according to your definition, is that which is not against the law; it is manifest that before there was a law, there could be no injustice; and therefore laws are in their nature antecedent to justice and injustice. And you cannot deny but there must be law-makers, before there were any laws, and consequently before there was any justice, (I speak of human justice); and that law-makers were before that which you call own, or property of goods or lands, distinguished by meum, tuum, alienum.

L. That must be granted; for without statute-laws, all men have right to all things; and we have had experience, when our laws were silenced by civil war, there was not a man, that of any goods could say assuredly they were his own.

P. You see then that no private man can claim a propriety in any lands, or other goods, from any title from any man but the King, or them that have the sovereign power; because it is in virtue of the sovereignty, that every man may not enter 30into and possess what he pleaseth; and consequently to deny the sovereign anything necessary to the sustaining of his sovereign power, is to destroy the propriety he pretends to. The next thing I will ask you is, how you distinguish between law and right, or lex and jus.

L. Sir Edward Coke in divers places makes lex and jus to be the same, and so lex communis and jus communis, to be all one; nor do I find that he does in any place distinguish them.

P. Then will I distinguish them, and make you judge whether my distinction be not necessary to be known by every author of the common-law. For law obligeth me to do, or forbear the doing of something; and therefore it lays upon me an obligation. But my right is a liberty left me by the law to do any thing which the law forbids me not, and to leave undone any thing which the law commands me not. Did Sir Edward Coke see no difference between being bound and being free?

L. I know not what he saw, but he has not mentioned it. Though a man may dispense with his own liberty, he cannot do so with the law.

P. But what are you better for your right, if a rebellious company at home, or an enemy from abroad, take away the goods, or dispossess you of the lands you have a right to? Can you be defended or repaired, but by the strength and authority of the King? What reason therefore can be given by a man that endeavours to preserve his propriety, why he should deny or malignly contribute to the strength that should defend him or repair him? Let us see now what your books say to this point, and other points of the right of 31sovereignty. Bracton, the most authentic author of the common law, (fol. 55), saith thus: Ipse Dominus Rex habet omnia jura in manu sua, sicut Dei vicarius; habet etiam ea quæ sunt pacis; habet etiam coercionem, ut delinquentes puniat; item habet in potestate sua leges. Nihil enim prodest jura condere, nisi sit qui jura tueatur. That is to say: Our Lord the King hath all right in his own hands; is God’s vicar; he has all that concerns the peace; he has the power to punish delinquents; all the laws are in his power: to make laws is to no purpose, unless there be somebody to make them obeyed. If Bracton’s law be reason, as I and you think it is, what temporal power is there which the King hath not? Seeing that at this day all the power spiritual, which Bracton allows the Pope, is restored to the crown; what is there that the King cannot do, excepting sin against the law of God? The same Bracton, (lib. ii. c. 8, fol. 5), saith thus: Si autem a Rege petatur, cum breve non currat contra ipsum, locus erit supplicationi quod factum suum corrigat et emendet; quod quidem si non fecerit, satis sufficit ei ad pœnam, quod Dominum expectet ultorem: nemo quidem de factis suis præsumat disputare, multo fortius contra factum suum venire. That is to say: If any thing be demanded of the King, seeing a writ lieth not against him, he is put to his petition, praying him to correct and amend his own fact; which if he will not do, it is a sufficient penalty for him, that he is to expect a punishment from the Lord: no man may presume to dispute of what he does, much less to resist him. You see by this, that this doctrine concerning the rights of sovereignty, so much cried 32down by the Long Parliament, is the ancient common-law, and that the only bridle of the Kings of England, ought to be the fear of God. And again, Bracton, (lib. ii. c. 24, fol. 55), says, that the rights of the Crown cannot be granted away: Ea vero quæ jurisdictionis sunt et pacis, et ea quæ sunt justitiæ et paci annexa, ad nullum pertinent nisi ad coronam et dignitatem Regiam, nec a corona separari poterunt, nec a privata persona possideri. This is to say: those things which belong to jurisdiction and peace, and those things that are annexed to justice and peace, appertain to none but to the crown and dignity of the King, nor can be separated from the crown, nor be possessed by a private person. Again, you will find in Fleta, a law-book written in the time of Edward II, that liberties, though granted by the King, if they tend to the hinderance of justice, or subversion of the regal power, were not to be used, nor allowed; for in that book, (lib. i. c. 20, §54) concerning articles of the crown, which the justices itinerant are to enquire of, the 54th article is this: You shall inquire, de libertatibus concessis quæ impediunt communem justitiam, et Regiam potestatem subvertunt. Now what is a greater hinderance to common justice, or a greater subversion of the regal power, than a liberty in subjects to hinder the King from raising money necessary to suppress or prevent rebellions, which doth destroy justice, and subvert the power of the sovereignty? Moreover, when a charter is granted by the King in these words: “Dedita etc. ... coram etc. ... pro me et hæredibus meis:” the grantor by the common-law, as Sir Edward Coke says in his Commentaries on Littleton, 33is to warrant his gift; and I think it reason, especially if the gift be upon consideration of a price paid. Suppose a foreign state should lay claim to this kingdom, (it is no matter as to the question I am putting, whether the claim be unjust), how would you have the King to warrant to every freeholder in England the lands they hold of him by such a charter? If he cannot levy money, their estates are lost, and so is the King’s estate; and if the King’s estate be gone, how can he repair the value due upon the warranty? I know that the King’s charters are not so merely grants, as that they are not also laws; but they are such laws as speak not to all the King’s subjects in general, but only to his officers; implicitly forbidding them to judge or execute any thing contrary to the said grants. There be many men that are able judges of what is right reason, and what not; when any of these shall know that a man has no superior nor peer in the kingdom, he will hardly be persuaded he can be bound by any law of the kingdom, or that he who is subject to none but God, can make a law upon himself, which he cannot also as easily abrogate as he made it. The main argument, and that which so much taketh with the throng of people, proceedeth from a needless fear put into their minds by such men as mean to make use of their hands to their own ends. For if, say they, the King may notwithstanding the law do what he please, and nothing to restrain him but the fear of punishment in the world to come, then, in case there come a king that fears no such punishment, he may take away from us, not only our lands, goods, and liberties, but our lives also if he 34will. And they say true; but they have no reason to think he will, unless it be for his own profit; which cannot be, for he loves his own power; and what becomes of his power when his subjects are destroyed or weakened, by whose multitude and strength he enjoys his power, and every one of his subjects his fortune? And lastly, whereas they sometimes say the King is bound, not only to cause his laws to be observed, but also to observe them himself; I think the King causing them to be observed is the same thing as observing them himself. For I never heard it taken for good law, that the King may be indicted, or appealed, or served with a writ, till the Long Parliament practised the contrary upon the good King Charles; for which divers of them were executed, and the rest by this our present King pardoned.

L. Pardoned by the King and Parliament.

P. By the King in Parliament if you will, but not by the King and Parliament. You cannot deny, but that the pardoning of injury belongs to the person that is injured; treason, and other offences against the peace and against the right of the sovereign, are injuries done to the King; and therefore whosoever is pardoned any such offence, ought to acknowledge he owes his pardon to the King alone: but as to such murders, felonies, and other injuries as are done to any subject how mean soever, I think it great reason that the parties endamaged ought to have satisfaction before such pardon be allowed. And in the death of a man, where restitution of life is impossible, what can any friend, heir, or other party that may appeal, require more than reasonable satisfaction some other way? Perhaps 35he will be content with nothing but life for life; but that is revenge, and belongs to God, and under God to the King, and none else; therefore if there be reasonable satisfaction tendered, the King without sin, I think, may pardon him. I am sure, if the pardoning him be a sin, that neither King, nor Parliament, nor any earthly power can do it.

L. You see by this your own argument, that the Act of Oblivion, without a Parliament, could not have passed; because, not only the King, but also most of the Lords, and abundance of common people had received injuries; which not being pardonable but by their own assent, it was absolutely necessary that it should be done in Parliament, and by the assent of the Lords and Commons.

P. I grant it; but I pray you tell me now what is the difference between a general pardon, and an act of oblivion?

L. The word Act of Oblivion was never in our books before; but I believe it is in yours.

P. In the state of Athens long ago, for the abolishing of the civil war, there was an act agreed on; that from that time forward, no man should be molested for anything before that act done, whatsoever, without exception; which act the makers of it called an act of oblivion; not that all injuries should be forgotten (for then we could never have had the story), but that they should not rise up in judgment against any man. And in imitation of this act, the like was propounded, though it took no effect, upon the death of Julius Cæsar, in the senate of Rome. By such an act you may easily conceive that all accusations for offences past were 36absolutely dead and buried; and yet we have no great reason to think, that the objecting one to another of the injuries pardoned, was any violation of those acts, except the same were so expressed in the act itself.

L. It seems then that the act of oblivion was here no more, nor of other nature, than a general pardon.

Of Courts.

P. Since you acknowledge that in all controversies, the judicature originally belongeth to the King, and seeing that no man is able in his own person to execute an office of so much business: what order is taken for deciding of so many and so various controversies?

L. There be divers sorts of controversies, some of which are concerning men’s titles to lands and goods; and some goods are corporeal, as lands, money, cattle, corn, and the like, which may be handled or seen; and some incorporeal, as privileges, liberties, dignities, offices, and many other good things, mere creatures of the law, and cannot be handled or seen; and both of these kinds are concerning meum and tuum. Others there are concerning crimes punishable divers ways: and amongst some of these, part of the punishment is some fine or forfeiture to the King; and then it is called a plea of the Crown, in case the King sue the party; otherwise it is but a private plea, which they call an appeal. And though upon judgment in an appeal the King shall have his forfeiture, yet it cannot be called a plea of the Crown, but when the Crown pleadeth for it. There be also other controversies concerning the government of the Church, in order to religion and virtuous life. The offences 37both against the Crown and against the laws of the Church, are crimes: but the offences of one subject against another, if they be not against the Crown, the King pretendeth nothing in those pleas but the reparation of his subjects injured.

P. A crime is an offence of any kind whatsoever, for which a penalty is ordained by the law of the land: but you must understand that damages awarded to the party injured, has nothing common with the nature of a penalty, but is merely a restitution or satisfaction, due to the party grieved by the law of reason, and consequently is no more a punishment than is the paying of a debt.

L. It seems by this definition of a crime, you make no difference between a crime and a sin.

P. All crimes are indeed sins, but not all sins crimes. A sin may be in the thought or secret purpose of a man, of which neither a judge, nor a witness, nor any man can take notice; but a crime is such a sin as consists in an action against the law, of which action he can be accused, and tried by a judge, and be convinced or cleared by witnesses. Farther; that which is no sin in itself, but indifferent, may be made sin by a positive law: as when the statute was in force that no man should wear silk in his hat, after the statute such wearing of silk was a sin, which was not so before. Nay, sometimes an action that is good in itself, by the statute law may be made a sin; as if a statute should be made to forbid the giving of alms to a strong and sturdy beggar, such alms, after that law, would be a sin, but not before; for then it was charity, the object whereof is not the strength or other quality of the poor man, but his poverty. Again, 38he that should have said in Queen Mary’s time, that the Pope had no authority in England, should have been burnt at a stake; but for saying the same in the time of Queen Elizabeth, should have been commended. You see by this, that many things are made crimes, and no crime, which are not so in their own nature, but by diversity of law, made upon diversity of opinion or of interest by them which have authority: and yet those things, whether good or evil, will pass so with the vulgar, if they hear them often with odious terms recited, for heinous crimes in themselves, as many of those opinions, which are in themselves pious and lawful, were heretofore, by the Pope’s interest therein, called detestable heresy. Again, some controversies are of things done upon the sea, others of things done upon the land. There need be many courts to the deciding of so many kinds of controversies. What order is there taken for their distribution?

L. There be an extraordinary great number of courts in England. First, there be the King’s courts, both for law and equity, in matters temporal; which are the Chancery, the King’s Bench, the Court of Common Pleas; and, for the King’s revenue, the Court of the Exchequer: and there be subjects' courts by privilege, as the Courts in London and other privileged places. And there be other courts of subjects, as the Court of Landlords, called the Court of Barons, and the Courts of Sheriffs. Also the Spiritual Courts are the King’s courts at this day, though heretofore they were the Pope’s courts. And in the King’s courts, some have their judicature by office, and some by commission; and some authority to hear and determine, and some only to inquire, 39and to certify into other courts. Now for the distribution of what pleas every court may hold, it is commonly held, that all the pleas of the Crown, and of all offences contrary to the peace, are to be holden in the King’s Bench, or by commissioners. For Bracton saith: Sciendum est, quod si actiones sunt criminales, in Curia Domini Regis debent determinari; cum sit ibi pœna corporalis infligenda, et hoc coram ipso rege, si tangat personam suam, sicut crimen læsæ majestatis, vel coram justitiariis ad hoc specialiter assignatis: that is to say, that if the plea be criminal, it ought to be determined in the Court of our Lord the King, because there they have power to inflict corporal punishment; and if the crime be against his person, as the crime of treason, it ought to be determined before the King himself; or if it be against a private person, it ought to be determined by justices assigned, that is to say, before commissioners. It seems by this, that heretofore Kings did hear and determine pleas of treason against themselves, by their own persons; but it has been otherwise a long time, and is now; for it is now the office of the Lord Steward of England, in the trial of a peer, to hold that plea by a commission especially for the same. In causes concerning meum and tuum, the King may sue, either in the King’s Bench, or in the Court of Common Pleas; as it appears by Fitzherbert in his Natura Brevium, at the writ of escheat.

P. A king perhaps will not sit to determine of causes of treason against his person, lest he should seem to make himself judge in his own cause; but that it shall be judged by judges of his own making can never be avoided, which is all one as if he were judge himself.

40L. To the King’s Bench also, I think, belongeth the hearing and determining of all manner of breaches of the peace whatsoever, saving always to the King that he may do the same, when he pleaseth, by commissioners. In the time of Henry III and Edward I (when Bracton wrote) the King did usually send down every seven years into the country, commissioners called justices itinerant, to hear and determine generally all causes temporal, both criminal and civil; whose places have been now a long time supplied by the justices of assize, with commissions of the peace of oyer and terminer, and of gaol-delivery.

P. But why may the King only sue in the King’s Bench or Court of Common Pleas, which he willwill, and no other person may do the same?

L. There is no statute to the contrary, but it seemeth to be the common-law. For Sir Edward Coke (IVth Instit.), setteth down the jurisdiction of the King’s Bench; which, he says, has: first, jurisdiction in all pleas of the Crown. Secondly, the correcting of all manner of errors of other justices and judges, both of judgments and process, except of the Court of Exchequer, which, he says, is to this court proprium quarto modo. Thirdly, that it has power to correct all misdemeanours extrajudicial, tending to the breach of the peace, or oppression of the subjects, or raising of factions, controversies, debates, or any other manner of misgovernment. Fourthly, it may hold plea by writ out of the Chancery of all trespasses done vi et armis. Fifthly, it hath power to hold plea by bill for debt, detenue, covenant, promise, and all other personal actions. But of the jurisdiction of the King’s Bench in actions 41real he says nothing; save, that if a writ in a real action be abated by judgment in the Court of Common Pleas, and that the judgment be by a writ of error reversed in the King’s Bench, then the King’s Bench may proceed upon the writ.

P. But how is the practice?

L. Real actions are commonly decided, as well in the King’s Bench, as in the Court of Common Pleas.Pleas.

P. When the King by authority in writing maketh a Lord Chief Justice of the King’s Bench; does he not set down what he makes him for?

L. Sir Edward Coke sets down the letters-patent, whereby of ancient time the Lord Chief Justice was constituted, wherein is expressed to what end he hath his office; viz. pro conservatione nostra et tranquillitatis regni nostri, et ad justitiam universis et singulis de regno nostro exhibendam, constituimus dilectum et fidelem nostrum P.B. Justitiarium Angliæ, quamdiu nobis placuerit, Capitalem, etc.: that is to say, for the preservation of ourself, and of the peace of our realm, and for the doing of justice to all and singular our subjects, we have constituted our beloved and faithful P. B. during our pleasure, Chief Justice of England, &c.

P. Methinks it is very plain by these letters-patent, that all causes temporal within the kingdom, except the pleas that belong to the Exchequer, should be decidable by this Lord Chief Justice. For as for causes criminal, and that concern the peace, it is granted him in these words, “for the conservation of our self, and peace of the kingdom,” wherein are contained all pleas criminal; and, in the doing of justice to all and singular the King’s 42subjects are comprehended all pleas civil. And as to the Court of Common Pleas, it is manifest it may hold all manner of civil pleas, except those of the Exchequer, by Magna Charta, cap. ii. So that all original writs concerning civil pleas are returnable into either of the said courts. But how is the Lord Chief Justice made now?

L. By these words in their letters-patent: Constituimus vos Justitiarium nostrum Capitalem ad placita coram nobis tenenda, durante beneplacito nostro: that is to say, we have made you our Chief Justice, to hold pleas before ourself, during our pleasure. But this writ, though it be shorter, does not at all abridge the power they had by the former. And for the letters-patent for the Chief Justice of the Common Pleas, they go thus: Constituimus dilectum et fidelem, etc., Capitalem Justitiarium de Communi Banco, habendum, etc., quamdiu nobis placuerit, cum vadiis et fœdis ab antiquo debitis et consuetis. Id est, We have constituted our beloved and faithful, &c., Chief Justice of the Common Bench, to have, &c., during our pleasure, with the ways and fees thereunto heretofore due, and usual.

P. I find in history, that there have been in England always a Chancellor and a Chief Justice of England, but of a Court of Common Pleas there is no mention before Magna Charta. Common pleas there were ever both here, and, I think, in all nations; for common pleas and civil pleas I take to be the same.

L. Before the statute of Magna Charta, common pleas, as Sir Edward Coke granteth, (2 Inst. p. 21), might have been holden in the King’s 43Bench; and that court being removeable at the King’s will, the returns of writs were Coram nobis ubicunque fuerimus in Anglia; whereby great trouble of jurors ensued, and great charges of the parties, and delay of justice; and for these causes it was ordained, that the common pleas should not follow the King, but be held in a place certain.

P. Here Sir Edward Coke declares his opinion, that no common plea can be holden in the King’s Bench, in that he says they might have been holden then. And yet this doth not amount to any probable proof, that there was any Court of Common Pleas in England before Magna Charta. For this statute being to ease the jurors, and lessen the charges of parties, and for the expedition of justice, had been in vain, if there had been a Court of Common Pleas then standing; for such a court was not necessarily to follow the King, as was the Chancery and the King’s Bench. Besides, unless the King’s Bench, wheresoever it was, held plea of civil causes, the subject had not at all been eased by this statute. For supposing the King at York, had not the King’s subjects about London, jurors and parties, as much trouble and charge to go to York, as the people about York had before to go to London? Therefore I can by no means believe otherwise, than that the erection of the Court of Common Pleas was the effect of that statute of Magna Charta, cap. 11; and before that time not existent, though I think that for the multiplicity of suits in a great kingdom there was need of it.

L. Perhaps there was not so much need of it as you think. For in those times the laws, for the most part, were in settling, rather than settled; 44and the old Saxon laws concerning inheritances were then practised, by which laws speedy justice was executed by the King’s writs, in the courts of Barons, which were landlords to the rest of the freeholders; and suits of barons in County courts; and but few suits in the King’s courts, but when justice could not be had in those inferior courts. But at this day there be more suits in the King’s courts, than any one court can despatch.

P. Why should there be more suits now, than formerly? For I believe this kingdom was as well peopled then as now.

L. Sir Edward Coke (4 Inst. p. 76) assigneth for it six causes: 1. Peace. 2. Plenty. 3. The dissolution of religious houses, and dispersing of their lands among so many several persons. 4. The multitude of informers. 5. The number of concealers. 6. The multitude of attorneys.

P. I see Sir Edward Coke has no mind to lay any fault upon the men of his own profession, and that he assigns for causes of the mischiefs, such things as would be mischief and wickedness to amend. For if peace and plenty be the cause of this evil, it cannot be removed but by war and beggary; and the quarrels arising about the lands of religious persons cannot arise from the lands, but from the doubtfulness of the laws. And for informers, they were authorized by statutes; to the execution of which statutes they are so necessary, as that their number cannot be too great; and if it be too great, the fault is in the law itself. The number of concealers are indeed a number of cozeners, which the law may easily correct. And lastly, for the multitude of attorneys, it is the 45fault of them that have the power to admit or refuse them. For my part, I believe that men at this day have better learned the art of cavilling against the words of a statute, than heretofore they had, and thereby encourage themselves and others to undertake suits upon little reason. Also the variety and repugnancy of judgments of common-law, do oftentimes put men to hope for victory in causes whereof in reason they had no ground at all: also the ignorance of what is equity in their own causes, which equity not one man in a thousand ever studied. And the lawyers themselves seek not for their judgments in their own breasts, but in the precedents of former judges: as the ancient judges sought the same, not in their own reason, but in the laws of the empire. Another, and perhaps the greatest cause of multitude of suits, is this, that for want of registering of conveyances of land, which might easily be done in the townships where the lands lay, a purchase cannot easily be had which will not be litigious. Lastly, I believe the covetousness of lawyers was not so great in ancient time, which was full of trouble, as they have been since in time of peace; wherein men have leisure to study fraud, and get employment from such men as can encourage to contention. And how ample a field they have to exercise this mystery in, is manifest from this, that they have a power to scan and construe every word in a statute, charter, feoffment, lease, or other deed, evidence, or testimony. But to return to the jurisdiction of this Court of the King’s Bench, where, as you say, it hath power to correct and amend the errors of all other judges, both in process and 46in judgments; cannot the judges of the Common Pleas correct error in process in their own courts, without a writ of error from another court?

L. Yes; and there be many statutes which command them so to do.

P. When a writ of error is brought out of the King’s Bench, be it either error in process or in law, at whose charge is it to be done?

L. At the charge of the client.

P. I see no reason for that; for the client is not in fault, who never begins a suit but by the advice of his counsel, learned in the law, whom he pays for his counsel given. Is not this the fault of his counsellor? Nor when a judge in the Common Pleas hath given an erroneous sentence, is it always likely that the judge of the King’s Bench will reverse the judgment, (though there be no question, but as you may find in Bracton and other learned men, he has power to do it); because being professors of the same common-law, they are persuaded, for the most part, to give the same judgments. For example: if Sir Edward Coke, in the last term that he sat as Lord Chief Justice in the Court of Common Pleas, had given an erroneous judgment, is it likely that when he was removed, and made Lord Chief Justice of the King’s Bench, he would therefore have reversed the said judgment? It is possible he might, but not very likely. And therefore I do believe there is some other power, by the King constituted, to reverse erroneous judgments, both in the King’s Bench and in the Court of Common Pleas.

L. I think not; for there is a statute to the contrary, made 4 Henry IV, cap. 23, in these words: 47Whereas, as well in plea real, as in plea personal, after judgment in the court of our Lord the King, the parties be made to come upon grievous pain sometimes before the King himself, sometimes before the King’s council, and sometimes to the Parliament, to answer thereof anew, to the great impoverishing of the parties aforesaid, and to the subversion of the common-law of the land, it is ordained and established, that after judgment given in the court of our Lord the King, the parties and their heirs shall be there in peace, until the judgment be undone by attaint, or by error, if there be error, as hath been used by the laws in the times of the King’s progenitors.

P. This statute is so far from being repugnant to that I say, as it seemeth to me to have been made expressly to confirm the same. For the substance of the statute is, that there shall be no suit made by either of the parties for anything adjudged, either in the King’s Bench, or Court of Common Pleas, before the judgment be undone by error, or corruption proved; and that this was the common-law before the making of this statute, which could not be, except there were before this statute some courts authorized to examine and correct such errors as by the plaintiff should be assigned. The inconvenience which by this statute was to be remedied was this, that often judgment given in the King’s courts, by which are meant in this place the King’s Bench and Court of Common Pleas, the party against whom the judgment was given, did begin a new suit, and cause his adversary to come before the King himself. Here, by the King himself must be understood the 48King in person: for though in a writ by the words coram nobis is understood the King’s Bench, yet in a statute it is never so; nor is it strange, seeing in those days the King did usually sit in court with his council to hear causes, as sometimes King James. And sometimes the same parties commenced their suit before the Privy Council, though the King were absent, and sometimes before the Parliament, the former judgment yet standing. For remedy whereof, it was ordained by this statute, that no man should renew his suit till the former judgment was undone by attaint or error; which reversing of a judgment had been impossible, if there had been no court besides the aforesaid two courts, wherein the errors might be assigned, examined, and judged; for no court can be esteemed, in law or reason, a competent judge of its own errors. There was therefore before this statute, some other court existent for the hearing of errors, and reversing of erroneous judgments. What court this was, I inquire not yet; but I am sure it could not be either the Parliament or the Privy Council, or the court wherein the erroneous judgment was given.

L. The Doctor and Student discourses of this statute (cap. 18 et seq.) much otherwise than you do. For the author of that book saith, that against an erroneous judgment all remedy is by this statute taken away. And though neither reason, nor the office of a King, nor any law positive, can prohibit the remedying of any injury, much less of an unjust sentence; yet he shows many statutes, wherein a man’s conscience ought to prevail above the law.

P. Upon what ground can he pretend, that all remedy in this case is by this statute prohibited?

49L. He says it is thereby enacted, that judgment given by the King’s Courts shall not be examined in the Chancery, Parliament, nor elsewhere.

P. Is there any mention of Chancery in this act? It cannot be examined before the King and his council, nor before the Parliament; but you see that before the statute it was examined somewhere, and that this statute will have it examined there again. And seeing the Chancery was altogether the highest office of judicature in the kingdom for matter of equity, and that the Chancery is not here forbidden to examine the judgments of all other courts, at least it is not taken from it by this statute. But what cases are there in this chapter of the Doctor and Student, by which it can be made probable, that when law and conscience, or law and equity, seem to oppugn one another, the written law should be preferred?

L. If the defendant wage his law in an action of debt brought upon a true debt, the plaintiff hath no means to come to his debt by way of compulsion, neither by subpœna, nor otherwise; and yet the defendant is bound in conscience to pay him.

P. Here is no preferring, that I see, of the law above conscience or equity. For the plaintiff in this case loseth not his debt for want either of law, or equity, but for want of proof; for neither law nor equity can give a man his right, unless he prove it.

L. Also if the grand jury in attaint affirm a false verdict given by the petty jury, there is no further remedy, but the conscience of the party.

P. Here again the want of proof is the want of remedy. For if he can prove that the verdict given 50was false, the King can give him remedy such way as himself shall think best, and ought to do it, in case the party shall find surety, if the same verdict be again affirmed, to satisfy his adversary for the damage and vexation he puts him to.

L. But there is a statute made since, viz. 27 Eliz. c. 8, by which that statute of 4 Hen. IV. 23, is in part taken away. For by that statute, erroneous judgments given in the King’s Bench, are by a writ of error to be examined in the Exchequer-chamber, before the justices of the Common Bench and the Barons of the Exchequer; and by the preamble of this act it appears, that erroneous judgments are only to be reformed by the High Court of Parliament.

P. But here is no mention, that the judgments given in the Court of Common Pleas should be brought in to be examined in the Exchequer-chamber. Why therefore may not the Court of Chancery examine a judgment given in the Court of Common Pleas?

L. You deny not but, by the ancient law of England, the King’s Bench may examine the judgment given in the Court of Common Pleas.

P. It is true. But why may not also the Court of Chancery do the same, especially if the fault of the judgment be against equity, and not against the letter of the law?

L. There is no necessity of that; for the same court may examine both the letter and the equity of the statute.

P. You see by this, that the jurisdiction of courts cannot easily be distinguished, but by the King himself in his Parliament. The lawyers themselves 51cannot do it; for you see what contention there is between courts, as well as between particular men. And whereas you say, that law of 4 Hen. IV. 23, is by that of 27 Eliz. c. 8, taken away, I do not find it so. I find indeed a diversity of opinion between the makers of the former and the latter statute, in the preamble of the latter and conclusion of the former. The preamble of the latter is, forasmuch as erroneous judgments given in the Court called the King’s Bench, are only to be reformed in the High Court of Parliament; and the conclusion of the former is, that the contrary was law in the times of the King’s progenitors. These are no parts of those laws, but opinions only concerning the ancient custom in that case, arising from the different opinions of the lawyers in those different times, neither commanding nor forbidding anything; though of the statutes themselves, the one forbids that such pleas be brought before the Parliament, the other forbids it not. But yet, if after the act of Hen. IV. such a plea had been brought before the Parliament, the Parliament might have heard and determined it. For the statute forbids not that; nor can any law have the force to hinder the Parliament of any jurisdiction whatsoever they please to take upon them, seeing it is a court of the King and of all the people together, both Lords and Commons.

L. Though it be, yet seeing the King (as Sir Edward Coke affirms, 4 Inst. p. 71) hath committed all his power judicial, some to one court, and some to another, so as if any man would render himself to the judgment of the King, in such case where the King hath committed all his power 52judicial to others, such a render should be to no effect. And p. 73, he saith farther: that in this court, the Kings of this realm have sitten on the high bench, and the judges of that court on the lower bench, at his feet; but judicature belongeth only to the judges of that court, and in his presence they answer all motions.

P. I cannot believe that Sir Edward Coke, how much soever he desired to advance the authority of himself and other justices of the common-law, could mean that the King in the King’s Bench sat as a spectator only, and might not have answered all motions, which his judges answered, if he had seen cause for it. For he knew that the King was supreme judge then in all causes temporal, and is now in all causes both temporal and ecclesiastical; and that there is an exceeding great penalty ordained by the laws for them that shall deny it. But Sir Edward Coke, as he had (you see) in many places before, hath put a fallacy upon himself, by not distinguishing between committing and transferring. He that transferreth his power, hath deprived himself of it: but he that committeth it to another to be exercised in his name and under him, is still in the possession of the same power. And therefore, if a man render himself, that is to say, appealeth to the King from any judge whatsoever, the King may receive his appeal; and it shall be effectual.

L. Besides these two courts, the King’s Bench for Pleas of the Crown, and the Court of Common Pleas for causes civil, according to the common-law of England, there is another court of justice, that hath jurisdiction in causes both civil and criminal, 53and is as ancient a court at least as the Court of Common Pleas, and this is the Court of the Lord Admiral; but the proceedings therein are according to the laws of the Roman empire, and the causes to be determined there are such as arise upon the marine sea: for so it is ordained by divers statutes, and confirmed by many precedents.

P. As for the statutes, they are always law, and reason also; for they are made by the assent of all the kingdom; but precedents are judgments, one contrary to another; I mean divers men in divers ages, upon the same case give divers judgments. Therefore I will ask your opinion once more concerning any judgments besides those of the King, as to their validity in law. But what is the difference between the proceedings of the Court of Admiralty, and the Court of Common-law?

L. One is, that the Court of Admiralty proceeded by two witnesses, without any either grand-jury to indict, or petty to convict; and the judge giveth sentence according to the laws imperial, which of old time were in force in all this part of Europe, and now are laws, not by the will of any other Emperor or foreign power, but by the will of the Kings of England that have given them force in their own dominions; the reason whereof seems to be, that the causes that arise at sea are very often between us, and people of other nations, such as are governed for the most part by the self-same laws imperial.

P. How can it precisely enough be determined at sea, especially near the mouth of a very great river, whether it be upon the sea, or within the land? For the rivers also are, as well as their banks, within or a part of one country or other.

54L. Truly the question is difficult; and there have been many suits about it, wherein the question has been, whose jurisdiction it is in.

P. Nor do I see how it can be decided but by the King himself, in case it be not declared in the Lord Admiral’s letters-patent.

L. But though there be in the letters-patent a power given to hold plea in some certain cases, not contrary to any of the statutes concerning the Admiralty, the justices of the common-law may send a prohibition to that court, to proceed in the plea, though it be with a non-obstante of any statute.

P. Methinks that that should be against the right of the Crown, which cannot be taken from it by any subject. For that argument of Sir Edward Coke’s, that the King has given away all his judicial power, is worth nothing: because, as I have said before, he cannot give away the essential rights of his Crown, and because by a non-obstante he declares he is not deceived in his grant.

L. But you may see by the precedents alleged by Sir Edward Coke, the contrary has been perpetually practised.

P. I see not that perpetually. For who can tell but there may have been given other judgments, in such cases, which have either been not preserved in the records, or else by Sir Edward Coke, because they were against his opinion, not alleged? For this is possible, though you will not grant it to be very likely. Therefore I insist only upon this, that no record of a judgment is a law, save only to the party pleading until he can by law reverse the former judgment. And as to the proceeding without juries, by two sufficient witnesses, I do not see what harm 55can proceed from it to the commonwealth, nor consequently any just quarrel that the justice of the common-law can have against their proceedings in the Admiralty. For the proof of the fact in both courts lieth merely on the witnesses; and the difference is no more, but that in the imperial law, the judge of the court judgeth of the testimony of the witnesses, and the jury doth it in a court of common-law. Besides, if a court of common-law should chance to encroach upon the jurisdiction of the Admiral, may not he send a prohibition to the court of common-law to forbid their proceeding? I pray you tell me what reason there is for the one, more than for the other?

L. I know none but long custom, for I think it was never done. The highest ordinary court in England is the Court of Chancery, wherein the Lord Chancellor, or otherwise Keeper of the Great Seal, is the only judge. This court is very ancient, as appears by Sir Edward Coke, 4 Inst. p. 78, where he nameth the Chancellors of King Edgar, King Etheldred, King Edmund, and King Edward the Confessor. His office is given to him, without letters-patent, by the King’s delivery to him of the Great Seal of England; and whosoever hath the keeping of the Great Seal of England, hath the same, and the whole jurisdiction that the Lord Chancellor ever had by the statute of 5 Eliz. c. 18, wherein it is declared, that such is, and always has been the common-law. And Sir Edward Coke says, he has his name of Chancellor from the highest point of his jurisdiction, viz. a cancellando; that is, from cancelling the King’s letters-patent, by drawing strokes through it like a lattice.

56P. Very pretty. It is well enough known that Cancellarius was a great officer under the Roman empire, whereof this island was once a member, and that the office came into this kingdom, either with, or in imitation of the Roman government. Also, it was long after the time of the twelve Cæsars, that this officer was created in the state of Rome. For till after Septimius Severus his time, the emperors did diligently enough take cognizance of all causes and complaints for judgments given in the Courts of the Prætors, which were in Rome the same that the judges of the common-law are here. But by the continual civil wars in after times for the choosing of Emperors, that diligence by little and little ceased. And afterwards, as I have read in a very good author of the Roman civil law, the number of complaints being much increased, and being more than the Emperor could dispatch, he appointed an officer as his clerk, to receive all such petitions; and that this clerk caused a partition to be made in a room convenient, in which partition-wall, at the heighth of a man’s reach, he placed at convenient distances certain bars; so that when a suitor came to deliver his petition to the clerk, who was sometimes absent, he had no more to do but to throw in his petition between those bars, which in Latin are called properly cancelli; not that any certain form of those bars, or any bars at all were necessary, for they might have been thrown over, though the whole space had been left open; but because they were cancelli, the clerk attendant, and keeping his office there, was called Cancellarius. And any court bar may properly enough be called cancelli, which does not signify a lattice; for that 57is but a mere conjecture grounded upon no history nor grammar, but taken up at first, as is likely, by some boy that could find no other word in the dictionary for a lattice, but cancelli. The office of this Chancellor was at first but to breviate the matter of the petitions, for the easing of the Emperor; but complaints increasing daily, they were too many, considering other businesses more necessary for the Emperor to determine; and this caused the Emperor to commit the determination of them to the Chancellor again. What reason doth Sir Edward Coke allege to prove, that the highest point of the Chancellor’s jurisdiction is to cancel his master’s letters-patent, after they were sealed with his master’s seal; unless he hold plea concerning the validity of them, or of his master’s meaning in them, or of the surreptitious getting of them, or of the abusing of them, which are all causes of equity? Also, seeing the Chancellor hath his office only by the delivery of the Great Seal, without any instruction, or limitation of the process of his court to be used; it is manifest, that in all causes whereof he has the hearing, he may proceed by such manner of hearing and examining of witnesses, with jury or without jury, as he shall think fittest for the exactness, expedition, and equity of the decrees. And therefore, if he think the custom of proceeding by jury, according to the custom of England in Courts of common-law, tend more to equity, which is the scope of all the judges in the world, or ought to be, he ought to use that method; or if he think better of another proceeding, he may use it, if it be not forbidden by a statute.