A DIALOGUE

OF

THE COMMON LAW.

Lawyer. WHAT makes you say, that the study of the law is less rational than the study of the mathematics?

Philosopher. I say not that; for all study is rational, or nothing worth: but I say, that the great masters of the mathematics do not so often err as the great professors of the law.

L. If you had applied your reason to the law, perhaps you would have been of another mind.

P. In whatsoever study, I examine whether my inference be rational: and have looked over the titles of the statutes from Magna Charta downward to this present time. I left not one unread, which I thought might concern myself; which was enough for me, that meant not to plead for any but myself. But I did not much examine which of them was more or less rational; because I read them not to dispute, but to obey them, and saw in all of them sufficient reason for my obedience, and that the same reason, though the Statutes themselves were changed, remained constant. I have also diligently read over Littleton's book of Tenures, with the commentaries thereupon of the renowned lawyer Sir Edward Coke; in which I confess I found great subtilty, not of the law, but

Of the law

of reason.

Of the law of reason.

of inference from law, and especially from the law of human nature, which is the law of reason and I confess that it is truth which he says in the epilogue to his book, that by arguments and reason in the law, a man shall sooner come to the certainty and knowledge of the law and I agree with Sir Edward Coke, who upon that text farther says, that reason is the soul of the law; and upon section 138, nihil, quod est contra rationem, est licitum ; that is to say, nothing is law that is against reason; and that reason is the life of the law, nay the common law itself is nothing else but reason; and upon section 21, æquitas est perfecta quædam ratio, quæ jus scriptum interpretatur et emendat, nulla scriptura comprehensa, sed solum in vera ratione consistens; i. e. Equity is a certain perfect reason, that interpreteth and amendeth the law written, itself being unwritten, and consisting in nothing else but right reason. When I consider this, and find it to be true, and so evident as not to be denied by any man of right sense, I find my own reason at a stand; for it frustrates all the laws in the world. For upon this ground any man, of any law whatsoever, may say it is against reason, and thereupon make a pretence for his disobedience. I pray you clear this passage, that we may proceed.

L. I clear it thus, out of Sir Edward Coke (1. Inst. sect. 138), that this is to be understood of an artificial perfection of reason, gotten by long study, observation, and experience, and not of every man's natural reason; for nemo nascitur artifex. This legal reason is summa ratio; and therefore if all the reason that is dispersed into so