said maxims, as they be of the general customs of the realm; yet because the said general customs be in a manner known through the realm, as well to them that be unlearned as learned, and may lightly be had and known, and that with little study, and the maxims be only known in the king's courts, or among them that take great study in the law of the realm, and among few other persons; therefore they be set in this writing, for several grounds, and he that listeth may so account them, or if he will, he may take them for no ground, after his pleasure." (Dialogue I., ch. viii.) Thus it is evident that the maxims are generalizations handed down by the oracles of the law and based upon the customary law. They consist of reasoning upon the customs, but they are not a part of the "law of reason." The law of reason may be based upon them, though they themselves are based only upon custom. This same particular reason may also be "derived of" a statute. Statutes and customs and maxims are in fact coördinate in authority, and a law of reason may be derived of all or any of the three, but when so derived it is of a higher authority than they. Thus a custom or maxim or statute against reason is void, even though the reason itself be derived from custom, maxim, or statute. A statute may change a custom, and apparently may even abrogate a maxim, but any custom or maxim or statute against reason is ipso facto void. In fact, the general test which Saint Germain usually employs to try whether anything in the law of England is based upon the law of reason or not, is whether it may be altered by statute or not (e.g. Dialogue I., ch. viii.).

As a piece of dialectics this division seemed to satisfy the Student and the Doctor, but when applied to the actual rules of law in England it is easy to see how hard it would be to decide whether a specific rule was in fact a law of reason "derived of" custom and unalterable by statute, or only the result of the judges' "reasoning" upon a custom,—a mere maxim which a statute might alter or entirely abrogate. The author confesses: "Moreover there be divers cases whereof I am in doubt whether they be only maxims of the law, or that they be grounded upon the law of reason," and he gives a long list of such maxims. In the end he gives up the attempt and leaves the question to the reader to decide: "And it is many times very hard and of great difficulty to know what cases of the law of

England be grounded upon the law of reason, and what upon custom of the realm; and though it be hard to discuss it, it is very necessary to be known, for the knowledge of the perfect reason of the law. And if any man think that these cases before rehearsed be grounded upon the law of reason, then he may refer them to the first ground of the law of England, which is the law of reason, whereof is made mention in the fifth chapter. And if any man think that they be grounded upon the law of custom, then he may refer them to the maxims of the law, which be assigned for the fourth ground of the law of England, whereof mention is made in the eighth chapter, as before appeareth." Thus though it is only the law of reason which can overcome a statute, it is easy to see how, in the hands of the common lawyers, this reason could become identified with the fundamentals of the common law, the "artificial reason" which might neither be known nor tampered with by the unlearned, even by a King.

Thus for Coke the greater principles of the common law, whether they were in origin customary or intuitive, could be looked upon in their entirety as sacred and unchangeable. That law was "the perfection of reason." However, it seems less probable that the practice of the common lawyers in subordinating enactment to custom was the result of such reasoning as Saint Germain's, than that his dialogue was an attempt to explain and justify, through the medium of the scholastic philosophy and the Civil Law, what had long been the actual practice of the judges of the common law. This subject is closely connected with the distinction made by lawyers between malum in se and malum prohibitum. See Doctor and Student, Dialogue I., especially ch. v. See also ch. vii.; Dialogue II., ch. xv.; Reason and Conscience in Sixteenth Century Jurisprudence, by Professor Vinogradoff, L. Q. R., vol. xxiv. p. 373 et seq., especially pp. 376, 377; Finch's Law (1627), pp. 74, 75; The History of the Law of Nature, by Sir F. Pollock, Journal of the Society of Comparative Legislation, N. S., vol. ii. p. 418 et seq., and ch. iv. of his Expansion of the Common Law; Holdsworth, H. E. L., vol. ii., appendix ii., The Law of Nature and the Common Law. On malum prohibitum, see 4 Inst., 63; Blackstone, Com., vol. i. pp. 54, 57; Amos's edition of Fortescue's De Laudibus Legum Angliae, p. 49, and references there cited.

T

CHAPTER III

Parliament as a Court

A. THE FUSION OF LEGISLATION AND JUDICATURE

O those who believed in a fundamental law im

mutable, the present-day doctrine of legislative sovereignty seemed new and contrary to the spirit of English institutions. In the constitutional struggle of Charles I's reign the doctrine of parliamentary sovereignty came to men, as Mr. Figgis truly says, "with all the force of a discovery."1 It lent itself to the views of the more extreme on both the parliamentary and the royalist side, and its influence over men's minds since the days of Milton and Hobbes has become so complete that historians have well-nigh forgotten that any other theory ever existed.

The word Parliament has come to carry with it the idea of a lawmaking assembly of the type described by Blackstone. Men in time became so familiar with that idea that they were not conscious of the great and unwarranted assumption they were making when speaking of Tudor and pre-Tudor times; for Parliament, up to the time of the Tudors, was hardly thought of primarily or principally as a legislature: it was still in reality "The High Court of Parliament." That court then retained the varied functions of the old Curia, as Parliament now does; but the judicial functions bulked 1 Divine Right of Kings, p. 232.

larger in men's minds than the legislative. Parliament still seemed primarily a law-declaring machine. So long as the law was a thing fundamental and immutable, "a subject of science, capable of being learnt by special study, but not capable of being altered by the mere will of government," Parliament's functions must have been conceived to be in large part merely the enforcing and applying of this law: Parliament must have been thought of first as a court rather than as a legislature. This I believe to have been the view prevailing, among lawyers at least, as late as the assembling of the Long Parliament. The statement of James I and Bacon, that a judge's functions were rather jus dicere than jus dare, would have seemed as properly applicable to the High Court of Parliament, if not so fully, as to the courts at Westminster Hall. The prominence of the judicial character of Parliament in the minds of men of the mediaeval period is the normal and natural consequence of the prevailing view that law was fixed; but it is at times surprising to find how late that idea has survived, how many of the characteristics even of the modern sovereign Parliament are due to it, and how many of the great parliamentary struggles of comparatively recent times have been influenced by the old conception of Parliament as a court.

"The function of a court of law," says Gneist, "was and remained the very kernel of every Germanic form of Constitution; judicial proceedings formed the cur

rent business of every national assembly." Such a "national assembly" as England could be said to have had in the period of the Norman kings was "rather a court than an organized council."2 The fact, already noted, of the frequent use of the word curia for such assemblies is a strong proof of this. Hoveden uses that word for the assembly in which the Constitutions of Clarendon were drawn up in 1164.3

Another proof, and a striking one, of the judicial character of the Council is afforded by the dispute between the kings of Castile and Navarre, which they agreed should be settled by a "judicium," "in curia... regis Angliae," in 1177.4

1 Constitutional History, vol. i. pp. 255, 256.

*Stubbs, Constitutional History, vol. i. p. 385; Lords' Report, vol. i.

p. 21.

3 Vol. i. (Rolls Series), pp. 222, 224, 225, cited by Pike, Constitutional History of the House of Lords, p. 29. “Et sic recessit archiepiscopus a curia." Hoveden, vol. i. p. 222. Hoveden, speaking of Becket's case in the Council of Northampton (which he calls a magnum concilium, vol. i. p. 224), says: Et barones curiae regis judicaverunt eum esse in misericordia regis" (p. 225). See also Madox, Exchequer, ch. i. sec. iii.

The Lords' Commissioners in the Report on the Dignity of a Peer (vol. i. p. 46) noticed this and were much perplexed, concluding finally "that the Words 'Curia Regis,"" in the Constitutions of Clarendon, "were intended to include the 'Curia' when assembled for Legislative as well as when assembled for Judicial Purposes; and that the Words applicable to their Judicial Functions were inserted, because the Clergy declined attending any Lay Court of Justice in any Criminal Case in which Judgement was to be pronounced of Loss of Limb or Death."

"In this case, the "curia" to which it was referred consisted of the Archbishop of Canterbury, the bishops, counts, and barons," and many others of the realm of England, clerics as well as laymen." Benedictus Abbas (Rolls Series, vol. i. p. 154). Benedict repeatedly uses the word curia (ibid., p. 139), and so do the kings who were the parties in the suit (p. 140). Nothing brings out more clearly the judicial nature of the business of the Council on this occasion than the fact that each of the kings had sent a champion "ad suscipiendum duellum in curia