The English works of Thomas Hobbes of Malmesbury, Volume 06 (of 11) — Thomas Hobbes — John Shaqi
The English works of Thomas Hobbes of Malmesbury, Volume 06 (of 11)
Thomas Hobbes · en
_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.