Thomas Hedley

 

Speech in Parliament
28 June 1610

 

Excerpts

I affirm that the parliament hath power over all arts, sciences, mysteries and professions, practiced in the commonwealth, and may make laws for reformation of any abuse in the practices therein. …
For as  the rules and maxims of all arts are agreeable to reason, and grounded thereupon, so especially is the common law. … every intelligent man may conceive and understand it, otherwise that legal or rather rational rule, ignorantia juris non excusat [ignorance of the law is no excuse], were very unjust. …for though it be true that all law is reason, yet that is no convertible proposition, for everyone knows that all reason is not law
 

… for the parliament hath his power and authority from the common law, and not the common law from the parliament. And therefore the common law is of more force and strength than the parliament … The parliament may find some defects in the common law and amend them (for what is perfect under the sun?) yet the wisest parliament that ever was could never have made such an excellent law as the common law is.


… that then that can only try reason, and is the essential form of the common law, in a word, is time, which is the trier of truth, author of all human wisdom, learning and knowledge, and from which all human laws receive their chiefest strength, honor, and estimation. Time is wiser than the judges, wiser than the parliament, nay wiser than the wit of man.


… I will now define it thus: the common law is a reasonable usage, throughout the whole realm, approved time out of mind in the king's court of record which have jurisdiction over the whole kingdom, to be good and profitable for the kingdom. But here because I must make custom a part in my definition of the common law, I would not be mistaken, as though I meant to confound the common law with custom, which differ as much as artificial reason and bare precedents. Customs are confined to certain and particular places, triable by the country, but their reasonableness or unreasonableness by the judges, to be taken strictly according to the letter and precedent, and therefore admits small discourse of art or wit; whereas the common law is extended by equity, that whatsoever falleth under the same reason will be found the same law.


… First therefore, it is not enough to say [common law] to be barely reason, but it must be tried reason, that is, the best reason or the quintessence of reason, reason tried and allowed by the wisdom of time for many ages together to be good and profitable for the commonwealth.
… So you see that great and general mischiefs to the commonwealth are of sufficient weight to overrule both precedents and judgments, for as no unreasonable usage will ever make a custom (pleadable in law) to bind within any manor or town, so no unreasonable usage (prejudicial to the commonwealth) will ever make a law to bind the whole kingdom. For whatsoever pretended rule or maxim of law, though it be colored or gilt over with precedents and judgments, yet if it will not abide the touchstone of reason and trial of time, it is but counterfeit stuff, and no part of the common law.


… And though the common law be no written law, but depends wholly upon reason and custom, yet it is as certain as any written law or human law whatsoever, for as there is more variety and difference of language and speech in the world than of reason and understanding, so their is more doubt and difference in exposition of words then in soundness and consequence of reason. Therefore there grows more doubts upon statute laws (which are written) than upon our common law which is evident in that our principal exercises among students and professors of the law (which are our readings in our Houses of Court) are ever upon statue laws, and chiefly for clearing of doubts therein. Nor can the civil law, or any human law, which may be made and altered by the king or emperor alone, be so certain as this, which cannot be changed so much as in part without the king and parliament.
… For I verily believe that the wisest lawgivers or parliament or council that ever was were never able to make so good and excellent a law for this state. For it is the work of time, which hath so adopted and accommodated this law to this kingdom as a garment fitted to the body or a glove to the hand or rather as the skin to the hand, which groweth with it, for consuetudo est altera natura [custom is second nature]; …

… It is a rule or principle in the common law of England that the king without assent of parliament cannot alter any law, no more than he can make a law, cuius est constituere eius est abrogare [it is the legislator who can abrogate]. This hath been agreed by all the King's learned counsel, and by one of them it was upon another occasion most worthily said, that as there were some principles in divinity which could not be disputed without blasphemy, so there were some principles in government that could not be disputed without sedition, whereof he held this to be one. Seeing, therefore, the king cannot alter the law, the chief subject or object whereof is property in land and goods, determining meum et tuum [mine and thine], for no man hath property in land or goods by the law of nature (terram enim dedit filiis hominum [for he gave the earth to the sons of men]) but by the municipal law of that kingdom, wherein he liveth or was born. Seeing also in this kingdom of England, the laws of the kingdom are the inheritance not only of the king, but also of the subjects, of which the king ought not to disseise them or disinherit them. Therefore it followeth consequently and necessarily, that the king cannot alter the property of the lands or goods of any of his free subjects without their consent, for that is to disseise or disinherit them of the fruit and benefit of the law, which is all one as to disinherit them of the law itself. And this appeareth yet more plainly in the great Charter of the liberties of England, that the law is not only to protect us against the absolute power and prerogative of the king in life and member, but also in land and goods.

… For I do not take Magna Charta to be a new grant or statue, but a restoring or confirming of the ancient laws and liberties of the kingdom, which by the Conquest before had been much impeached or obscured.
… of this I think there is little question, that if the subjects do obtain a grant of their ancient laws and liberties at the conqueror's hands, though it be first gotten by force, yet if after at several times and in several ages in time of peace it be confirmed by continual consent and oath of king and people and hath so continued and been continually approved for many hundred years, then they will be as firm and strong as any human laws whatsoever.

…The felicity and happiness of all kingdoms, but particularly this of ours, resteth as well in the moderate and lawful freedom and liberty of the subjects as in the sovereignty of the king, but in the right composition and mixture of both (which by the common law is excellently performed). This kingdom enjoyeth the blessings and benefits of an absolute monarchy and of a free estate. Tacitus (speaking of the felicity of the Roman Empire in the time of Nerva and Traina) assigns the reason quod res olim dissociabiles miscuerint principatum et libertatem [that they reconciled those once unsociable matters sovereignty and freedom]. Therefore let no man think liberty and sovereignty incompatible, that how much is given the one is taken from the other; but rather like twins, that they have such concordance and coalescence, that the one can hardly long subsist without the other. … The sovereignty of the king hath his existence principally in matter of honor or government, the liberty of the subject in matter of profit or property.

… the condition of a villein, whose lands and goods are only in the power of his lord, which doth so abase his mind, even the lack of liberty in this point, that he is neither fit to do service to his country in war nor peace, for the law enables him not so much as to serve in a jury, and the wars design him but to the galley or the gallows. So if the liberty of the subjects be in this point impeached, that their lands and goods be any way in the king's absolute power to be taken from them, then they are (as hath been said) little better than the king's bondmen, which will so discourage them and so abase and deject their minds, that they will use little care of industry to get that which they cannot keep and so will grow both poor and base-minded like to the peasants in other countries, which be no soldiers nor will be ever made any, whereas every Englishman is as fit for a soldier as the gentleman elsewhere. …


 

disseise = expropriate

Magna Carta

Traina =Trajan
Tacitus, Life of Agricola 3.2

[The full text of this speech can be found in  Proceedings in Parliament 1610, edited by Elizabeth Read Foster, Volume II, pages 170-97]