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._ If a man bring a plea of common-law into the spiritual court, which
is now the King’s court, and the judge of this spiritual court hold plea
thereof: by what construction can you draw it within the compass of the
words you have now read? To sue for my right in the King’s court, is no
pursuing of translations of bishoprics, made or procured in the Court of
Rome, or any place else, but only in the court of the King; nor is this
the suit against the King, nor his crown, nor his regality, nor his
realm, but the contrary. Why then is it a præmunire? No. He that brings
in or setteth out a writing in any place whatsoever, wherein is
contained, that the King hath so given away his jurisdiction, as that if
a subject be condemned falsely, his submission to the King’s judgment is
of none effect; or that the King upon no necessity whatsoever can out of
Parliament-time raise money for the defence of the kingdom, is, in my
opinion, much more within the statute of provisors, than they which
begin suit for a temporal matter in a court spiritual. But what argument
has he for this law of his, since the statute-law fails him, from the
law of reason?
_L._ He says, _they are called other courts, either because they proceed
by the rules of other laws, as by the canon or civil law, or by other
trials than the common-law doth warrant. For the trial warranted by the
law of England for matter of fact, is by verdict of twelve men before
the judges of the common-law, in matters pertaining to the common-law,
and not upon examination of witnesses, as in the Court of Equity. So
that alia curia is either that which is governed per aliam legem, or
which draweth the party ad aliud examen. For if_—
_P._ Stop there. Let us consider of this you have read: _for the trial
warranted by the law of England is by verdict of twelve men_. What means
he here by the law of England? Does it not warrant the trials in
Chancery, and in the Court of Admiralty, by witnesses?
_L._ By the law of England he means the law used in the King’s Bench;
that is to say, the common-law.