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
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.