766
Souter, J., dissenting
person should have "a just demand upon the king, he must petition him in his court of chancery, where his chancellor will administer right as a matter of grace, though not upon compulsion." Id., at *243.
It is worth pausing here to note that after Blackstone had explained sovereign immunity at common law, he went on to say that the common law tradition was compatible with sovereign immunity as discussed by writers on "natural law":
"And this is entirely consonant to what is laid down by the writers on natural law. 'A subject,' says Puffendorf, 'so long as he continues a subject, hath no way to oblige his prince to give him his due, when he refuses it; though no wise prince will ever refuse to stand to a lawful contract. And, if the prince gives the subject leave to enter an action against him, upon such contract, in his own courts, the action itself proceeds rather upon natural equity, than upon the municipal laws.' For the end of such action is not to compel the prince to observe the contract, but to persuade him." Ibid. (footnote omitted).5
traditions and customs which formed the substance of the common law," ibid. Although Bracton said that "law makes the king," 2 Bracton, at 33, he also said that the unwritten law of England could properly be called law only to the extent that "the authority of the king or prince [has] first been added thereto," id., at 19, and he spoke of "these English laws and customs, by the authority of kings," id., at 21. The judges who announced the common law sat "in the place of the king," id., at 20, and so in practice the common law certainly derived from him. Thus, at least for the most part, "[t]he custom of the king's court is the custom of England, and becomes the common law." 1 Pollock & Maitland, supra n. 3, at 184. But for this, Blackstone would probably not have remarked that the natural law theory produced a result "consonant" with the common law, 1 Blackstone *243; see infra this page and 768.
5 For the original of the quoted passage, see 1 S. Pufendorf, De Jure Naturae et Gentium Libri Octo 915 (1688 ed., reprinted 1934); for a modern translation, see 2 S. Pufendorf, De Jure Naturae et Gentium Libri Octo 1344-1345 (C. & W. Oldfather transl. 1934) (hereinafter Pufendorf). Else-
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