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
In written laws, men use to make a difference between the letter, and
the sentence of the law: and when by the letter, is meant whatsoever can
be gathered from the bare words, it is well distinguished. For the
significations of almost all words, are either in themselves, or in the
metaphorical use of them, ambiguous; and may be drawn in argument, to
make many senses; but there is only one sense of the law. But if by the
letter, be meant the literal sense, then the letter, and the sentence or
intention of the law, is all one. For the literal sense is that, which
the legislator intended, should by the letter of the law be signified.
Now the intention of the legislator is always supposed to be equity: for
it were a great contumely for a judge to think otherwise of the
sovereign. He ought therefore, if the word of the law do not fully
authorize a reasonable sentence, to supply it with the law of nature; or
if the case be difficult, to respite judgment till he have received more
ample authority. For example, a written law ordaineth, that he which is
thrust out of his house by force, shall be restored by force: it happens
that a man by negligence leaves his house empty, and returning is kept
out by force, in which case there is no special law ordained. It is
evident that this case is contained in the same law: for else there is
no remedy for him at all; which is to be supposed against the intention
of the legislator. Again, the word of the law commandeth to judge
according to the evidence: a man is accused falsely of a fact, which the
judge himself saw done by another, and not by him that is accused. In
this case neither shall the letter of the law be followed to the
condemnation of the innocent, nor shall the judge give sentence against
the evidence of the witnesses; because the letter of the law is to the
contrary: but procure of the sovereign that another be made judge, and
himself witness. So that the incommodity that follows the bare words of
a written law, may lead him to the intention of the law, whereby to
interpret the same the better; though no incommodity can warrant a
sentence against the law. For every judge of right, and wrong, is not
judge of what is commodious, or incommodious to the commonwealth.
[Sidenote: The abilities required in a judge.]