The English works of Thomas Hobbes of Malmesbury, Volume 03 (of 11) — Thomas Hobbes — John Shaqi
The English works of Thomas Hobbes of Malmesbury, Volume 03 (of 11)
Thomas Hobbes · en
But because there is no judge subordinate, nor sovereign, but may err in
a judgment of equity; if afterward in another like case he find it more
consonant to equity to give a contrary sentence, he is obliged to do it.
No man’s error becomes his own law; nor obliges him to persist in it.
Neither, for the same reason, becomes it a law to other judges, though
sworn to follow it. For though a wrong sentence given by authority of
the sovereign, if he know and allow it, in such laws as are mutable, be
a constitution of a new law, in cases, in which every little
circumstance is the same; yet in laws immutable, such as are the laws of
nature, they are no laws to the same or other judges, in the like cases
for ever after. Princes succeed one another; and one judge passeth,
another cometh; nay, heaven and earth shall pass; but not one tittle of
the law of nature shall pass; for it is the eternal law of God.
Therefore all the sentences of precedent judges that have ever been,
cannot altogether make a law contrary to natural equity: nor any
examples of former judges, can warrant an unreasonable sentence, or
discharge the present judge of the trouble of studying what is equity,
in the case he is to judge, from the principles of his own natural
reason. For example sake, it is against the law of nature, _to punish
the innocent_; and innocent is he that acquitteth himself judicially,
and is acknowledged for innocent by the judge. Put the case now, that a
man is accused of a capital crime, and seeing the power and malice of
some enemy, and the frequent corruption and partiality of judges,
runneth away for fear of the event, and afterwards is taken, and brought
to a legal trial, and maketh it sufficiently appear, he was not guilty
of the crime, and being thereof acquitted, is nevertheless condemned to
lose his goods; this is a manifest condemnation of the innocent. I say
therefore, that there is no place in the world, where this can be an
interpretation of a law of nature, or be made a law by the sentences of
precedent judges, that had done the same. For he that judged it first,
judged unjustly; and no injustice can be a pattern of judgment to
succeeding judges. A written law may forbid innocent men to fly, and
they may be punished for flying: but that flying for fear of injury,
should be taken for presumption of guilt, after a man is already
absolved of the crime judicially, is contrary to the nature of a
presumption, which hath no place after judgment given. Yet this is set
down by a great lawyer for the common law of England. _If a man_, saith
he, _that is innocent, be accused of felony, and for fear flyeth for the
same; albeit he judicially acquitteth himself of the felony; yet if it
be found that he fled for the felony, he shall notwithstanding his
innocency, forfeit all his goods, chattels, debts, and duties. For as to
the forfeiture of them, the law will admit no proof against the
presumption in law, grounded upon his flight._ Here you see, _an