CHARACTERISTICS OF THE COMMON LAW 279 



Lord Ellesmere. It was admitted on all hands that it was a case of 

 first impression. Lord Coke spoke of it as being " Such a one as the 

 eye of the law, our books and book cases, never saw; as the ears of 

 our law (our reporters) never heard of; nor the mouth of the law, 

 for fadex est lex loquens, the judges, our forefathers of the law never 

 tasted; I say such a one as the stomach of the law, our exquisite 

 and perfect records of pleadings, entries, and judgments, never 

 digested." (7 Rep. 4a.) 



It will be instructive to examine Calvin's Case with reference to 

 two points, one, its treatment of the law of nature, the other the 

 source to which lawyers in the time of Coke could look for a standard 

 of justice in the absence of precedent. 



In committee in the House of Commons Sir Edwin Sandes showed 

 that this case was proper to be consorted with the law of nations 

 which is called " jus gentium "; for there being no precedent for it in 

 the law " lex deficit" and " deficiente consuetudine recurratur ad ra- 

 tionem naturalem" and " deficiente lege recurritur ad consuetudinem," 

 which ratio naturalis is the law of nations, called jus gentium. (Moore, 

 790; S. C. 2 How. St. Tr. 563.) 



By "ratio naturalis" Sir Edwin meant natural law, using the term 

 to signify " common sense" as explained by Mr. Brice. (Essays in 

 Juris, p. 587.) , In the argument in Exchequer Chamber, Bacon, 

 Solicitor-General, said that the common law was founded on and! 

 favored by the law of nature; that all civil laws are to be taken 

 strictly where they abridge the law of nature; and that as by the 

 law of nature all men are naturalized one toward the other, the 

 presumption was that Calvin by the law of nature was not an alien 

 in England. Bacon uses the term law of nature in the sense of 

 natural or physical law and not in the sense used by Sandes. 



The Lord Chancellor evidently had heard the argument of Sandes, 

 for he says, "It is truly saide by a learned gentleman of the lower 

 house, 'deficiente lege recurrendum est consuetudinem deficiente con- 

 suetudine recurrendum ad rationem. "' (2 How. St. Tr. 672.) But 

 Lord Ellesmere 's conclusion is that the reason to which one finally 

 must resort is not "the collective reason of civilized mankind," but 

 that found only in those having four special qualities; namely, age, 

 learning, experience, and authority to speak. (2 How. St. Tr. 686.) 

 Lord Ellesmere has departed now from the theory of the law of 

 nature of Sandes to that theory which treats natural reason as reason 

 of the expert. Lord Coke disapproved of the proposition of Sandes 

 which he put in the form that, for want of written law and of pre- 

 cedent, we are driven to reason, commenting upon it as follows: "If 

 the said imaginative rule be rightly and legally understood, it may 

 stand for Truth; for if you intend ratio for the legal and profound 

 reason of such as by diligent study and long experience and observa- 



