Chapter II: Front Matter (2)

_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 sovereignty. 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 down 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, is 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 will. 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 he 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 absolutely 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.

[Sidenote: 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 both 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, he 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, and 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 <cite lang="la">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.

_L._ 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 will, 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 (IV_th 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 real 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.

_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 subjects 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 Bench; 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; and 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 fault 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 in 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: Whereas, 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 King 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?

_L._ 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 was 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 cannot 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 judicial 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, and 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.

_L._ 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 can 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.

_P._ 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 is 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.

_L._ As for this reasoning of yours, I think it well enough. But there ought to be had also a reverend respect to customs not unreasonable; and therefore, I think, Sir Edward Coke says not amiss, that in such cases where the Chancellor will proceed by the rule of the common-law, he ought to deliver the record in the King’s Bench; and also it is necessary for the Lord Chancellor to take care of not exceeding as it is limited by statutes.

_P._ What are the statutes by which his jurisdiction is limited? I know that by the 27 _Eliz._ _c._ 8, he cannot reverse a judgment given in the King’s Bench for debt, detinue, &c.; nor before the statute could he ever, by virtue of his office, reverse a judgment in pleas of the Crown, given by the King’s Bench, that hath the cognizance of such pleas. Nor need he; for the judges themselves, when they think there is need to relieve a man oppressed by ill witnesses, or power of great men prevailing on the jury, or by error of the jury, though it be in case of felony, may stay the execution and inform the King, who will in equity relieve him. As to the regard we ought to have to custom, we will consider of it afterwards.

_L._ First, in a Parliament holden the 13th of Richard II, the Commons petitioned the King, that neither the Chancellor, nor other Chancellor, do make any order against the common-law, nor that any judgment be given without due process of law.

_P._ This is no unreasonable petition; for the common-law is nothing else but equity: and by this statute it appears, that the Chancellors, before that statute, made bolder with the Courts of common-law than they did afterward; but it does not appear that common-law in this statute signifies any thing else but generally the law temporal of the realm, nor was this statute ever printed, that such as I might take notice of it. But whether it be a statute or not, I know not, till you tell me what the Parliament answered to this petition.

_L._ The King’s answer was, the usages heretofore shall stand, so as the King’s royalty be saved.

_P._ This is flatly against Sir Edward Coke, concerning the Chancery.

_L._ In another Parliament, 17 _Rich. II_, it is enacted, at the petition of the Commons, that forasmuch as people were compelled to come before the King’s Council, or in Chancery, by writs grounded upon untrue suggestions, the Chancellor for the time being, presently after such suggestions be duly found and proved untrue, shall have power to ordain and award damages according to his discretion, to him which is so travelled unduly as is aforesaid.

_P._ By this statute it appears, that when a complaint is made in Chancery upon undue suggestions, the Chancellor shall have the examination of the said suggestions, and as he may award damages when the suggestions are untrue, so he may also proceed by process to the determining of the cause, whether it be real or personal, so it be not criminal.

_L._ Also the Commons petitioned in a Parliament of 2 _Hen. IV_, (not printed) that no writs, nor privy seals, be sued out of Chancery, Exchequer, or other places, to any man to appear at a day upon a pain, either before the King and his Council, or in any other place, contrary to the ordinary course of common-law.

_P._ What answer was given to this petition by the King?

_L._ That such writs should not be granted without necessity.

_P._ Here again, you see, the King may deny or grant any petitions in Parliament, either as he thinks it necessary, as in this place, or as he thinks it prejudicial or not prejudicial to his royalty; as in the answer of the former petition, which is a sufficient proof that no part of his legislative power, or any other essential part of royalty, can be taken from him by a statute. Now seeing it is granted that equity is the same thing with the law of reason, and seeing Sir Edward Coke (1 _Inst._ sec. xxi.), defines equity to be a certain reason comprehended in no writing, but consisting only in right reason, which interpreteth and amendeth the written law; I would fain know to what end there should be any other Court of Equity at all, either before the Chancellor or any other person, besides the Judges of the Civil or Common Pleas? Nay, I am sure you can allege none but this, that there was a necessity for a higher Court of Equity than the Courts of common-law, to remedy the errors in judgment given by the justices of inferior courts; and the errors in Chancery were irrevocable, except by Parliament, or by special commission appointed thereunto by the King.