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._ This law was made but for seven years, and never continued by any
other Parliament, and the motive of this law was the great riots,
extortions, oppressions, &c. used during the time of the insurrection of
John Cade, and the indictments and condemnations wrongfully had by this
usurped authority. And thereupon the Parliament ordained, that for seven
years following no man should disobey any of the King’s writs under the
Great Seal, or should refuse to appear upon proclamation before the
King’s Council, or in the Chancery, to answer to riots, extortions, &c.;
for the first time he should lose, &c. Wherein there is nothing at all
concerning the jurisdiction of the Chancery or any other court, but an
extraordinary power given to the Chancery, and to the King’s Privy
Council, to determine of those crimes, which were not before that time
triable but only by the King’s Bench or special commission. For the Act
was made expressly for the punishment of a great multitude of crimes
committed by those who had acted under the said Cade’s authority; to
which Act the proviso was added which is here mentioned, that the
proceedings in those Courts of Chancery, and of the King’s Council,
should be such as should be used in the courts, to which the said
causes, before this Act was made, do belong: that is to say, such causes
as were criminal, should be after the order of the King’s Bench; and
such causes as were not criminal, but only against equity, should be
tried after the manner of the Chancery, or in some cases according to
the proceedings in the Exchequer. I wonder why Sir Edward Coke should
cite a statute, as this is, above two hundred years before expired, and
other two petitions, as if they were statutes, when they were not passed
by the King; unless he did it on purpose to diminish, as he endeavours
to do throughout his Institutes, the King’s authority, or to insinuate
his own opinions among the people for the law of the land; for that also
he endeavours by inserting Latin sentences, both in his text and in the
margin, as if they were principles of the law of reason, without any
authority of ancient lawyers, or any certainty of reason in themselves,
to make men believe they are the very grounds of the law of England. Now
as to the authority you ascribe to custom, I deny that any custom of its
own nature can amount to the authority of a law. For if the custom be
unreasonable, you must, with all other lawyers, confess that it is no
law, but ought to abolished; and if the custom be reasonable, it is not
the custom, but the equity that makes it law. For what need is there to
make reason law by any custom how long soever, when the law of reason is
eternal? Besides, you cannot find it in any statute, though _lex et
consuetudo_ be often mentioned as things to be followed by the judges in
their judgments, that _consuetudines_, that is to say, customs or
usages, did imply any long continuance of former time; but that it