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Author Topic: Key Historical Events ...THAT YOU MAY HAVE NEVER HEARD OF  (Read 34782 times)

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AGelbert

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Thomas Hobbes, The English Works of Thomas Hobbes, vol. 6 (Dialogue, Behemoth, Rhetoric) [1839]


A DIALOGUE between A PHILOSOPHER & A STUDENT of THE COMMON LAWS OF ENGLAND.

A DIALOGUE of THE COMMON LAW.


SNIPPET:   

P.
We have hitherto spoken of laws without considering anything of the nature and essence of a law; and now unless we define the word law, we can go no farther without ambiguity and fallacy, which will be but loss of time; whereas, on the contrary, the agreement upon our words will enlighten all we have to say hereafter.


L.
I do not remember the definition of law in any statute.


P. 😠
I think so: for the statutes were made by authority, and not drawn from any other principles than the care of the safety of the people. Statutes are not philosophy, as is the common-law, and other disputable arts, but are commands or prohibitions, which ought to be obeyed, because assented to by submission made to the Conqueror here in England, and to whosoever had the sovereign power in other commonwealths; so that the positive laws of all places are statutes. The definition of law was therefore unnecessary for the makers of statutes, though very necessary to them whose work it is to teach the sense of the law.
[25]


L.
There is an accurate definition of a law in Bracton, cited by Sir Edward Coke: Lex est sanctio justa, jubens honesta, et prohibens contraria.


P.
That is to say, law is a just statute, commanding those things which are honest, and forbidding the contrary. From whence it followeth, that in all cases it must be the honesty or dishonesty that makes the command a law; whereas you know that but for the law we could not, as saith St. Paul, have known what is sin. Therefore this definition is no ground at all for any farther discourse of law. Besides, you know the rule of honest and dishonest refers to honour, and that it is justice only, and injustice, that the law respecteth. But that which I most except against in this definition, is, that it supposes that a statute made by the sovereign power of a nation may be unjust. There may indeed in a statute-law, made by men, be found iniquity, but not injustice.  ;)


L.
This is somewhat subtile.  ;D  I pray deal plainly. What is the difference between injustice and iniquity?


P.
I pray you tell me first, what is the difference between a court of justice, and a court of equity?


L.
A court of justice is that which hath cognizance of such causes as are to be ended by the positive laws of the land; and a court of equity is that, to which belong such causes as are to be determined by equity; that is to say, by the law of reason.


P.
You see then that the difference between [26]injustice and iniquity is this; that injustice is the transgression of a statute-law, 😉 and iniquity the transgression of the law of reason 👍.  But perhaps you mean by common-law, not the law itself, but the manner of proceeding in the law, as to matter of fact, by twelve men, freeholders; though those twelve men are no court of equity, nor of justice, because they determine not what is just or unjust, but only whether it be done or not done; and their judgment is nothing else but a confirmation of that which is properly the judgment of the witnesses. For to speak exactly, there cannot possibly be any judge of fact besides the witnesses.


L.
How would you have a law defined?


P.
Thus; a law is the command of him or them that have the sovereign power, given to those that be his or their subjects, declaring publicly and plainly what every of them may do, and what they must forbear to do.


L.
Seeing all judges in all courts ought to judge according to equity, which is the law of reason, a distinct court of equity seemeth to me to be unnecessary, and but a burthen to the people, since common-law and equity are the same law.

P.
It were so indeed, if judges could not err; but since they may err, and that the King is not bound to any other law but that of equity, it belongs to him alone to give remedy to them that, by the ignorance or corruption of a judge, shall suffer damage.


L.
By your definition of a law, the King’s proclamation under the Great Seal of England is a [27]law; for it is a command, and public, and of the sovereign to his subjects.



P. 
Why not, if he think it necessary for the good of his subjects? For this is a maxim at the common-law alleged by Sir Edward Coke himself, (i Inst. sect. 306), Quando lex aliquid concedit, concedere videtur et id per quod devenitur ad illud. And you know out of the same author, that divers Kings of England have often, to the petitions in Parliament which they granted, annexed such exceptions as these, unless there be necessity, saving our regality; which I think should be always understood, though they be not expressed; and are understood so by common lawyers, who agree that the King may recall any grant wherein he was deceived.


L.
Again, whereas you make it of the essence of a law to be publicly and plainly declared to the people, I see no necessity for that.  ;)  Are not all subjects bound to take notice of all acts of Parliament, when no act can pass without their consent?



P. If you had said that no act could pass without their knowledge, then indeed they had been bound to take notice of them; but none can have knowledge of them but the members of the houses of Parliament; therefore the rest of the people are excused.  Or else the knights of the shire should be bound to furnish people with a sufficient number of copies, at the people’s charge, of the acts of Parliament, at their return into the country; that every man may resort to them, and by themselves, or friends, take notice of what they are obliged to. For otherwise it were impossible they should be [28]obeyed: and that no man is bound to do a thing impossible, is one of Sir Edward Coke’s maxims at the common-law.
[/quote]

Agelbert NOTE: Notice how the philosopher is cleverly taking the Lawyer to task for attempting to assume that, just because Parliament knows about a law it passed, the PEOPLE therefore KNOW about it too (and must obey it because they "know" about it. LOL!). You are WITNESSING the birth of the elite establishment through sophistic rhetoric. :o  :P

Despite the fact that the philosopher appears elitist by giving the King the "divine right to rule" prerogative, he is simply using CFS to smell an elite rat in the group of fine folks populating Parliament (and the Courts) in pretense of "ensuring justice for the people". 

THIS is HOW it all started;
a slow, steady elite SCAM to "represent" us but keep the lion's share of power and privilege for THEM after they had taken it away from the King through clever arguments about "representative" democracy.    It worked!  :evil4:


Here's the MONEY QUOTE that immediately follows in the paragraph above from the philosopher. :emthup:  I humbly apologize for breaking it into two parts. I just had to throw my two shillings in.   

Quote
P. (continued from above) I know that most of the statutes are printed; but it does not appear that every man is bound to buy the book of statutes, nor to search for them at Westminster or at the Tower, nor to understand the language wherein they are for the most part written. 


http://oll.libertyfund.org/titles/770
« Last Edit: June 09, 2021, 06:07:36 pm by AGelbert »
He that loveth father or mother more than me is not worthy of me: and he that loveth son or daughter more than me is not worthy of me. Matt 10:37

 

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