of the chief of the Nobility were Partners therin which were never fully appeased until the Parliament was holden at Marlebridge about the 52 year of his Reign when and where that Charter was enacted in that Parliament and thereby the antient Laws and Liberties revived and restored which Charter so enacted sithence hath been by all Kings Queens solemnly sworn at their Coronations to be kept and so hath been sacredly Observed to this day unless some Forgetfulness in some Kings and Ignorance in some Officers hath infringed the same But now by Gods blessing plentifully powred upon us it is in sull Use to the great Comfort of all good Subjects and immortal fame of her most Excellent Majesty And in the 28 Chapter of that Charter and Act of Parliament I find it set down in Latine in excellent and significant brief words to this effect That no Freeman shall be dealt with either in Life Liberty Lands Liberties Body or Goods nor that the King would send for any nor proceed against any Nisi per legale judiciū parium suorum aut per legem terrae And that the King would not defer deny nor sell Justice or Right to any which is as it were the sum of all the Charter Act and the whole mark that was shot at to revive the antient Laws and restore the antient Liberty and Liberties to the Subjects Wherein I noted That both how far the Prerogative should go and what is Right and Justice common to all is referred to be decided per legem terrae what therefore that Lex terrae was which was so carefully sought dearly bought with so much Noble blood which was then thereby revived I thought if I could find I had that I sought for And therfore I thought it best to begin with such Reporters or Writers of our Law as writ nearest the time of that Charter and looked into Mr. Bracton that wrote about 9 H. 3. the very time of the first granting of the Charter who was one of the chief that were appointed as it is delivered by Traditiō to find out again the antient Laws of the Land when the King was pleased to put thē again into the force that they had lost by the Conquest And in his Book in print I find it thus written Cum autem ferè in omnibus Regionibus utatur legibus jure scripto sola Anglia usa est in suis fmibus jure non scripto consuetudine in ea quidem ex non scripto jus venit quod usus comprobavit And after that he saith in the next Chapter these words Leges Anglicanae fuerunt approbatae consensu utentium Sacramento Regum confirmatae And Cap. 3. Consuetudo more utentium approbata vicem Legis obtinet consuetudinis non vilis est authoritas And he saith further Lib. 1. Cap. 8. treating of that Law which he calleth the Custom of the Land Lex autem facit Regem attribuat igitur Rex Legi quod Lex attribuit ei id est dominationem potestatem nam ubi dominatur voluntas non Lex ibi non est Rex Whereof may be aptly collected that before this Law was there was no King here in this Land for if the Law of the Land made the King there was none before it But Kings we find by all Stories to be of a great antiquity here in this Land and so by consequence the Law must And then looking for that matter in the Reports of the Law I found a Book Case in 2 H. 4. fol. 18. That it was agreed by the Judges that the Common Custom of the Realm was the Law of the Land And in that point looking further I found all Books of Law agree which Judgement of the Judges from time after the Enacting of that Charter and the judgement of Mr. Bracton before at the time of the penning of the Charter concurring in one satisfied me That Lex terrae which is there set down and thereby revived and now holden by the great Charter whereto every King and Queen is sworn at the Coronation was the antient Custom of the Land that all People of several Nations that at several times inhabited here liked best of as fittest for this place whereby the Kings lived in greatest Honor and Ease and the People in greatest Quietnes and Freedom wherfore thereto the Kings were content to bind themselves and the Subjects could abide no other And so I drew that travel to this conclusion That our Law is the antient Custom of the Country or Land and of that Antiquity that there is no Record nor Matter that can shew the Commencement thereof nor any man can tell it but it was before all memory of Man that remaineth in the world consisting of Maxims General Grounds Rules received approved allowed as just good necessary for the Governmēt of this Land begun when this Land first became a Common-wealth under a King and ever sithence used approved and allowed from time to time time out of mind of Man and by experience found in all Ages to be fittest for the place and to be necessary honest and profitable both for the Prince and People and being so found fit and continued it became a Custom to be observed of all that should inhabit or remain here and when it was lost by the Conquest it was again restored by Common consent of Parliament as was necessary it should be for that the force it had by Custom and Usage was interrupted by the Conquest So as the Custom of the Realm revived by Parliament is the Law of the Land which is the Genus to all And the Parliament and the Acts thereof and the Prerogative of the Prince and the particular Customs of several Counties Cities Boroughs Manors be all but Species of it For that General Custom of the Realm which is the Law of the Land authorizeth the Parliament limiteth the Prerogative alloweth and disalloweth of Private Customs and whatsoever in England is to be allowed and not to be allowed as they are consonant or dissonant to the reason thereof But when I had found out this by Reading then looking into the course of Practice I found the Lord Chancellor fitting highest in Westminster-Hall and had most to do bare the greatest rule and yet gave his judgement as it seem'd to me as it pleased himself whatsoever the Law of the Land required in the case And seeing Men of great Honor Learning Integrity sit in that place and so judge I was in a maze not finding at the first how it could stand with the Great Charter that referred all judgement ad Legem terrae and how any thing different from that Law could be allowable in the Land sith the Kings were all sworn to maintain the Charter that restored the Law and his Lordship and all the Judges were placed by the King But when I looked further and perused it well I found that the Custom of the
the Law is in the Case and to Imprison the party if he will not be ruled by him and forbear the benefit of Law in every thing that the Lord Chancellor thinketh to be Unconscionable So as it seemed upon the first object for that his Lordship is neither bound to the trial nor the judgement that the Statute appointeth to be observed as it seemed upon the Letter that his Authority is above Law or besides Law so the Great Charter of England no further holden than it pleaseth the Lord Chancellor of England Also it appeared by practice That no Man hath Jurisdiction to judge according to the Law before he hath some Grant or Commission from the King or Queen out of the Lord Chancellors Office under the Great Seal that is in his keeping And also by course of the Common-law saving some particular prescriptions in some particular Courts the Judges cannot hold plea in any Cause until his Lordship send them it by an Original Writ framed in the Chancery retornable before the Judges by his Lordships appointment But when it was well considered That the Charter and Statute of Magna Charta was that none of these things should be done but according to the Law of the Land And that every King was sworn to observe it and that the Lord Chancellor is appointed by the King to his Office It was conceived that the Law of the Land appointed these things to be thus done by his Lordship for some necessary causes known to them that first invented the Law and so that great Office and the Great Charter and the Law of the Land might all stand together Wherefore then was sought for when that great Office of Chancery was erected by whom and for what cause and it was found to be erected by the Institutors of the Common Law as a Member thereof of necessity to observe order in making of Judges direction of Sutes and to relieve and supply in those Cases where the Judges by the general Grounds and Rules of Law could not give competent Remedy by Law according to Conscience and Equity as shall hereafter be more plainly shewed And so his Lordship nor his Office no derogation to the Law of the Land but his Office a member and he a Judge thereof without whom the Law could not have the perfection order and due honour that it hath For the better perceiving whereof it was Noted First that those the Kings Nobles and Commons whosoever and whensoever they were that Instituted the Law of the Land did see that it was best to make it so as it might stand of General Grounds and Rules that might comprehend all particular Cases that should fall out and to bind all that were in one Case to one judgment without respect of persons or other Circumstances or else the Law could not direct the Judges how they should proceed in judgement For if consideration of the person or other circumstance might have given a scope to the Judges to judge by one Rule one Case one way and another another way the Judge might have made of the Golden Rule of the Law a Leaden Rule to bend at his will and so confusion would have followed and infinite inconveniences for avoiding whereof they made the Rules to reach all persons alike according to Justice which regardeth the person of no Man in judgement Then they did see that many would be over-reached for some were too simple and would trust untrusty persons and be circumvented and were meet therefore to be holpen Some would fall into the lash of the Law ignorantly and therefore not to be punished as those that offended of Malice Many might craftily over reach their Neighbours by getting the better end of the staff And some by strength bear them down if by some extraordinary Authority the weaker were not upholden and the simple provided for and the subtill prevented For in many Cases men might offend wrong their Neighbours in subtil sort and be wronged by hap or simplicity or ignorance and yet the General Rule of the Law could not fully reach or relieve them that were so over-reached or circumvented Wherefore the Institutors of the Law found it to be a thing of necessity to tie the Judges to follow the Law in judgement in all Cases generally alike as the Case required and yet to constitute one Supreme Judge further trusted than the rest that might have an Authority absolute and extraordinary to supply and reform those particular Cases that might happen as aforesaid according to Equity and good Conscience and to bind the parties not to follow Law where by Law they might get more by subtilty or the others simplicity than Conscience would Here grew an Objection That it was a dishonour to the Law to have these wants by this great Man to be thus supplyed for that it shewd that she had not sufficiency and certainty in her Grounds and Rules But this is nothing For there is no Law in any Nation but particular mischiefs have grown upon it nor ever any Art or Science hath been so exquisitely set down but disputable Questions have been found in it And that it cannot be otherwise one example may serve Moyses that was the Law-giver to Gods People and delivered it himself by Inspiration was at the wall we see in his own Books in divers Cases that happened both in the Political Law who should inherit and the Ceremonial Law touching the uncleanesse that came by touching a dead body and he was driven to refer it to God to be decided and could not decide it himself by the general Rule of the most perfect Law that ever was given to any people Then if Moyses that man of God found some doubts that he could not decide in that Law delivered by himself Good Judges and learned may find some Cases that by Law they can hardly find a good provision for but leave it to such as God shall appoint to utter his Will by in Cases of Conscience sith by Law they are not otherwise provided for Then it was Noted whereof his Lordship hath his name of Dominus Cancellarius Angliae Lord Chancellor of England wherein all agree that he is called Cancellarius à Cancellando But what he may Cancell whereby he had that honour hath been doubted Some have said that he had authority Cancellare iniquam Legem Communem judicare secundum Conscientiam But that hath no reason and was rejected for it is absurd that sith the Law hath made him a Judge of Law and his Office a member of the Law and made thereby as as shall be plainly proved that the Law should give Authority to deface or Cancell her self or that his Honour should deface that wherby he sitteth and hath his Authority And to that end was cited Mr. Bractons saying Lex facit Regem attribuat igitur Rex Legi quod Lex attribuitei id est dominationem potestatem And thereupon it was concluded à fortiore If the
THE ANTIQUITY ORIGINAL Of the COURT of CHANCERY And AUTHORITY of the LORD CHANCELLOR OF ENGLAND BEING A Branch of Serjeant Snagg's Reading upon the 28 Chapter of Magna Charta at the Middle Temple in Lent 13 Eliz. WITH His Congratulatory Epistle by way of Preface to the Lord CHANCELLOR Hatton in 29 Eliz. Major haeredit as à Legibus quam à parentibus Cicero LONDON Printed for Henry Seile over against Saint Dunstans Church in Fleetstreet 1654. To the Right Honourable the Lords Commissioners for Custody of the Great Seal of England My Lords WHat an eminent and a learn'd Professor of the Laws of England heretofore in Manuscript presented to an Honourable Predecessor of your Lordships at his first entrance to that high place Be pleased to give a Puisnè leave to present in print unto your Lordships at your Investiture A small fragment I confess yet such I hope as will appear neither unworthy of your approbation nor improper for your Patronage and Protection The subject-matter as well of the Authors Epistle as of his Readers observations being a little Map and Modell of your Lordships great Office and Jurisdiction and rarely to be found in our printed Authorities which peradventure may be the Reason why that antient and excellent Judicatory hath lately met with such great Envy and Opposition Learning having no other Enemy but Ignorance and most Men being naturally inclin'd to apprehend amisse of that they comprehend not Though it will not be denied but that any Court of Iustice in England may admit of Regulation My Lords I shall not say any thing for the Piece it speaks Reason and can best speak for it self I shall only crave your Honours pardon for this great presumption of Your Lordships Most humbly devoted T. L. To the Right Honourable Sir Christopher Hatton Knight Lord Chancellor of England Robert Snagg an Apprentice of the Common Laws of that Realm wisheth all increase of Grace Mercy and Peace Honour and Prosperity in this World and perfect Felicity in the World to come WHen Right Honourable it came to my course to Read in the Middle Temple after I had there continued a Puisnè full 20 years and more for so they are called till they Read and then I was to become an Apprentice of the Common Law and in my Reading to deliver to my Fellows of that House such Notes as I had collected in the course of my Study that I thought to be most profitable to be opened for the exercise and use of Law in our time And whē I had looked into some other mens Travels that had Read before me and other Writers and found many several Conceipts and sundry Incertainties touching the Commencement of our Law and whence it came and what it was and I thought it as meet as Tully teacheth that it should be understood Quid est de quo disputetur as to enter into argument of particular cases which were to be decided thereby which is the manner of that exercise well known to your Lordship as one that entred by that Gate into the happy and honourable Course of life that God of his great Goodness hath most graciously led you in from Grace to Grace and Honor to Honor to the highest Honor and most absolute Office that is in England under her Majesty who is immediate in all Dignity Honor and Authority under God in this Land But when I had considered according to my capacity of all the Reports that be in print of the practice of the Law and of some other that I have I could find no certainty of the Commencement of it what it was nor whence it came For some said it was the Custom of Normandy that the Conquerour brought in and placed here Some that it came out of Germany brought by those people that were called Angli that came hither to inhabit of whō this Land took the name of Angolia and the Law the name of Lex Angliae which savoured more of Reason that is the ground of our Law And some imagined one thing and some another But that great learned Judge Mr. Littleton in his first Book satisfied me that it could neither be the Law of Normandy nor of any other Country in Germany nor elsewhere but peculiar to this Land For he saith That Tenant by the Courtesy of England is to hold the Land if his Wife die during his life by the Law of England is called Tenant by the Courtesy of England for this that this is not used in any other Realm but only in England whereof I collected that if the same Law had been in any other Realm that Tenure by the Law had likewise been there And I found in stories that presently after the Conquest there were divers Insurrections not only of the people that did rise without Reason but of divers of the Nobility of the best sort who endured Famin and that so far as they did ear the vilest vermin yea and the utter overthrow of their Houses and Posterity And all their cause was but to be restored to their antient Laws Liberties And that civil dissention continued long for that cause and the Nobility without restitution of them would not yield to their Kings as men that shewed themselves to be made of the right English mould ready to endure any pain and loss rather than the loss of their native Laws Liberties and to subject themselves to the Will-government of their new Lords and new Laws that the Conqueror brought in and the pleasures and oftentimes the displeasures of their Kings who did all and took all as pleased themselves under pretence of their Prerogative which Prerogative rightly used and truly understood is a thing most honorable to the Crown and not prejudicial to the Law nor hurtful to the Realm nor any Subjects lawful Interest or Liberty But that Will-government in the Kings discontentment in the Nobility continual Wars within the Realm continued until K. Henry the 3. who being by that time by divers descents purged and purified by our English Air and by Education after the order of our Nation and so become English and of a better nature than the Aliens and their offspring of love to his subjects was content to allow Englishmen their English Laws And thereupon the 10th day of Febr. in the 9th year of his Reign granted under his great Seal the Great Charter thereby to restore the Laws of the Land the Liberties of the Subjects and to limit his Prerogatives so as they should be prejudicial to neither But after kindled as it seemed by the heat of his youth he continued not in that good mind but infringed the same Charter and chose his Will for his direction as others his late Predecessors had don and left that Law of the Land which he had granted to be Restored and Revived Whereupon 40 years wars after that followed between him and his Barons as they be generally Termed though the greatest Earls others
Land which is that Lex terrae allowed of that Authority also as of the rest and that it was also a Species of that General the Law of the Land which was the ant ent Custom of the Realm And that it was of necessity to be in that sort For that the Common Law Custom of the Realm or Law of the Land term it as they list standing of General Grounds Rules and Maxims it was impossible but some particular Cases must fall out that either the General Rule whereon it lighteth should be too bard for it or too short to reach it And therefore was it of necessity to the end that all Cases might be judged according to Right and Equity to have one under the Prince above the rest to have such an Authority that might judge secundum aequum bonum sanam conscientiam in these cases and to mitigate where the Rule of Law would light too hard and to supply where it came too short and to the end that he might have the sending forth of Commissions to authorise Judges of Precepts from the Prince to produce them to judgment that were to be sued And to be of especial Trust with the King for keeping his Great Seal ordering thereof in such other things as appertains to that office Wherefore entring into consideration thereof I found that Office also to be limited by the Law and erected thereby and therfore I gather'd divers Notes concerning the same to Answer such Objections as might in that respect be objected against that Charter and Statute and the Law of the Land which lying by me when your Lordship was placed in that great Office whom I profess I ever affected from my first comming to the Temple more thā others though then I knew and was known of many of excellent Gifts and Natures And after your Honor was called to the Court by her Majesty I coming sometimes to you from my old good Lord dear Friend Sir Edward Saunders late L. Chief Baron I found you most gracious and favourable unto me and now lately received such honorable usage from you as I could not have desired when some of good and honorable Nature excellent good Disposition dealt hardly with me as I thought not affording me a good word for a dutiful heart ever born them and some hard pains performed for thē which God for some offence committed by me but not against them laid on me yet your Lordship of whom I had never deserved any thing nor shewed any Duty to except God revealed to you the Intention and Affection of my heart defended my poor credit as I heard to my great Comfort and spake well of me Wherefore to shew my self thankfull for an ungratefull Man I have ever hated as a Devil and loathed as a Monster I bethought me how to present something to your Honour as a token of my dutifull mind heart tyed to you But amongst things of price I could find nothing that was not too dear for me to compass or too mean for you to receive as a present and that to deal that way was but to pour water into the Sea so plentifully God be blessed for it he hath blessed you with abundance And yet seeing your Honor had so well used me for nothing but of your honourable Nature I gathered hope that you would accept something were it never so small in good part at my hands whose heart and what he hath is ever at your Commandement And taking example by the poor Gardiners that present flowers to the greatest Princes that have nothing in them but a small smell and no profit yet are well accepted of their gracious minds I thought good to compose my Papers together that concerned the Authority Exercise of your Lordships Office and to present them unto you which though too simple to inform your Wisdom of any understanding yet at some vacant time may serve to recreate your self in reading as the plainest things not the gravest matters are meetest for that purpose But my good Lord with these papers I present unto you my self my poor service to be altogether at your Commandement with faithful promise That if my life may hold one of your fingers frō hurt I will lay it down to help it or to do you any good while I live will speak well of you to men as one that deserveth it of all pray for you to God that he may still bless you with increase of his excellent Graces much Honor perfect assurance of everlasting joy And that her Matie and this Land may long enjoy you for the maintenance of the Laws and Liberties thereof and the relief of the oppressed Subjects Notes touching the Office and Authority of the Lord Chancellor of England Collected out of a Reading made in the Middle Temple in Lent Anno Dom. 1570. upon the 28 Chap. of the Great Charter of England granted under the Great Seal in the 9th year and Enacted and made a Statute at Marlbridge in 52 year of King Henry the Third WHen the Reader had found That by his Statute No Man might be arrested imprisoned or dealt withall in his Person or Liberty or put out of his Freehold Free Customs or Liberties Nor that the King would send forth against any nor proceed upon any but by the lawful trial of their Peers or the Law of the Land And that the King would not sell deferr or deny Justice or Right to any And that that Law of the Land was the Antient custom of the Country which hath continued ever sithence there was a King here and that by it the King was made and had his power and preheminence And that it was confirmed by the Oath of Kings before the Statute and sworn to be observed by all the Kings sithence And that all Judges are bound to try their doubts and Judge their Causes accordingly howsoever their private knowledge or Conscience leadeth them Then both by Practice and by the Authority of Books looking into the course of the proceedings in the Chancery by the Lord Chancellor of England from time to time it seemed as though that Office had been besides the Law erected out of the absolute Authority that the Conquerors claimed and that it hath been continued from time to time against the Law and the Provision of that Charter and Parliament as it were by a Prerogative above the Law for that he is not tyed to any Form of Trial of any point of Fact that falleth out doubtfull before him as other Judges be but may examine Witnesses as he pleaseth and when he pleaseth to inform his Conscience also examine the parties by Oath or otherwayes and to proceed as it shall seem best to his Wisdom to beat out the Truth as it seemeth good to him in his privat judgment And that his Lordship may Order Decree the Cause as it seemeth to him to agree most with Equity and Conscience howsoever
to the Law or that great Office for some have grown by Grant by reasō of the Kings Prerogative which both the Law and the Chancery alloweth and are to allow of right so it be not in derogation of their Authorities and may stand with the Law of the Land For the Kings Bench proceedeth by Bill without Original against such as be Prisoners to the Mareschal thereof and that justly for that no Law can prescribe the King a form to proceed in Iustice for those Causes that be before himself but he may receive any complaint without Writ and proceed as it please him so he observe the Law for Iustice Iudgement which is done there as well as in the Common Pleas where all come in by Original Writ For though it be not by like form for process yet it is by the same form of pleading and judgement in matter substance of Law all one And in this part it is manifest that this Authority also in the Lord Chancellor to direct out Original Writs is by the Law of the Land given unto him and his form prescribed to him by the Law how he should make them And to that purpose there is a Book of Law left in the Chancery that the Chancery men are bound to follow which is called The Register And if the Writs be not made according to the form of Law thereby prescribed the Judges will reject them and judge thē void which is called in Law abating of the Writ So as it is apparent that in this also his Lordship and his Office is by the Common Law and are members of the Commō Law and that he doth it not by any other Authority above Law or besides it 5. Then was considered of his Lordships authority to judge which appeareth in 9 E. 4. fol. 14. in a Book-case to be of two sorts or by two powers viz. One according to the course of the Common Law or Positive Law which is there said to be Potentia ordinata which is in process in pleading and in judgement according to the course of the Common Law of the Land The other is said Absoluta potentia which is in process according to the Law of Nature to send for the party to Answer and receive his Answer if he will make it then proceed to examine the truth of the matter and if he will not answer but be Contumax yet his Honour is to proceed to the examination of the truth and not to condemn him in the cause for his obstinacy if it may appear that the matter be not good against him And there is noted this difference which is apparent and common in practice That where the proceeding is according to Ordinary power mispleading on either part may marr his Matter and the judgement must be according to the Law howsoever the equity of the Case shall fall out But if the proceeding be according to Absolute power though the party mis-plead if the Lord Chancellor shall perceive the matter to be good on his side his Lordship is to judge for him for whom Equity serveth be it the Plaintiff or Defendant for that he is to judge as he shall find the matter to be in Conscience good or bad and not as he shall find the pleading to be formal and good or vicious and evil or as the Law will in the Case As for example in such actions as be brought in the Chancery before the L. Chancellor as an Audita querela to avoid a Recognisance for Nonage or other good Cause in Law And in actions brought according to the course of the Law either by any of the Court or against any of them by reason of their Privilege and in Vouchers upon Aid-prayer of the King and such other whatsoever actions are pursued there according to the course of the Law his Lordship is not to regard what Conscience would in the Case but is tyed to the strict course of Law so as if the matter be against Conscience in his Lordships opinion yet he is to adjudge with him that the Law serveth for yea if his matter appear to be good and his Counsel have lost it by pleading his Lordship can not help it in judgement nor if the Law be against him though Equity Conscience would seem for him But on the other side if the proceeding be by the Absolute power howsoever the party or his Counsel oversee or set forth their matter whatsoever the precise Rule of Law requireth if his Lordship perceive by his Wisdom that the cause in Conscience is good on his side his Lordship is to adjudge with him for that then judgement is to proceed secundum Conscientiam Veritatem and not in Forma Juris But in any Case that is there in form of Law if it fall out that in Conscience it ought to be relieved the party may put in a Bill follow it in that course and then his Lordship may stay the course of Law 6. Then was it enquired Whether his Lordship may take order in all causes which are against Conscience or that the Law hath limited them also and allowed of some to hold in that course and some not And it seemed that Conscience whereby his Lordship is to judge is not to be understood simpliciter and to be Simplex Conscientia but Regulata Conscientia and therein to follow Order and Course accustomed viz. to take order in such Cases as by the Course of the Court hath been ordered before-time and in Causes of like Equity or greater wherfore oftentimes Presidents are sought for and required and for lack of Presidents it hath been sought how cases in the like reason or in eodem respectu with that that is then in question have been used to prove that that Court may take cognizance of the Cause As for example it is against Conscience that a rich Father should suffer an honest Son to begg that a rich Son should suffer a good Father to want yet his Lordship in those cases cannot make the one to give away his goods to relieve the other according to Conscience But that which that Regulata Conscientia relieveth is not when one keepeth his own unconscionably but when one seeketh an other mans Goods or Lands or to trouble his person unconscionably either by colour of Law or extorted power further or otherwise than in good Conscience it ought to be then his Lordship proceeding according to the course of that Court is in Conscience to relieve the party that is so dealt with or his Lands or Goods so taken or sought contrary to Conscience 7. And it was thought that if it be unconscionable that is done if the Law in ordinary course may give a competent remedy and the party sufficiently able to follow it and that there be no defect in any circumstance but that by the Law the party wronged may be relieved that his Lordship ought not to deal in it but referr it to the Law to be judged