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 see no great need he has to be ready in the statutes. In the
hearing of a cause, do the judges of the common-law inform the counsel
at the bar what the statute is, or the counsel the judges?
_L._ The counsel inform the judges.
_P._ Why may they not as well inform the Chancellor? Unless you will
say, that a bishop understands not as well as a lawyer what is sense,
when he hears it read in English. No, no; both the one and the other are
able enough: but to be able enough is not enough, when not the
difficulty of the case only, but also the passion of the judge is to be
conquered. I forgot to tell you of the statute of 36 _Edw.III_, c. 9,
that if any person thinking himself grieved contrary to any of the
articles above-written, or others contained in divers statutes, will
come to the Chancery, or any for him, and thereof make his complaint, he
shall presently there have remedy by force of the said articles and
statutes, without elsewhere pursuing to have remedy. By the words of
this statute it is very apparent, in my opinion, that the Chancery may
hold plea upon the complaint of the party grieved, in any case triable
at the common-law; because the party shall have present remedy in that
court, by force of this Act, without pursuing for remedy elsewhere.
_L._ Yes; but Sir Edward Coke (4 _Inst._ p. 82) answers this objection
in this manner. These words, says he, _he shall have remedy_, signify no
more but that he shall have presently there a remedial writ grounded
upon those statutes, to give him remedy at the common-law.
_P._ Very like Sir Edward Coke thought, as soon as the party had his
writ, he had his remedy, though he kept the writ in his pocket without
pursuing his complaint elsewhere: or else he thought, that the
Common-bench was not elsewhere than in the Chancery.
_L._ Then there is the Court of——
_P._ Let us stop here; for this which you have said satisfies me, that
seek no more than to distinguish between justice and equity; and from it
I conclude, that justice fulfils the law, and equity interprets the law,
and amends the judgments given upon the same law. Wherein I depart not
much from the definition of equity cited in Sir Edward Coke (1 _Inst._
sec. xxi.); _viz._ equity is a certain perfect reason, that interpreteth
and amendeth the law written; though I construe it a little otherwise
than he would have done; for no one can mend a law but he that can make
it, and therefore I say it amends not the law, but the judgments only
when they are erroneous. And now let us consider of crimes in
particular, the pleas whereof are commonly called the Pleas of the
Crown, and of the punishments belonging to them. And first of the
highest crime of all, which is high-treason. Tell me, what is
high-treason?
[Sidenote: Of crimes capital.]