The English works of Thomas Hobbes of Malmesbury, Volume 06 (of 11) — Thomas Hobbes — John Shaqi
The English works of Thomas Hobbes of Malmesbury, Volume 06 (of 11)
Thomas Hobbes · en
_P._ It is true; but perhaps you may think otherwise, when you read such
acts of parliament, as say, that the King shall have power and authority
to do this or that by virtue of that act, as _Elizabeth_ c. I. “that
your highness, your heirs, and successors, Kings, or Queens of this
realm, shall have full power and authority, by virtue of this act, by
letters-patent under the great seal of England, to assign, &c.” Was it
not this Parliament that gave this authority to the Queen?
_L._ No. For the statute in this clause is no more than, as Sir Edward
Coke useth to speak, an affirmance of the common-law. For she being head
of the Church of England, might make commissioners for the deciding of
matters ecclesiastical, as freely as if she had been Pope, who did, you
know, pretend his right from the law of God.
_P._ We have hitherto spoken of laws without considering anything of the
nature and essence of a law; and now unless we define the word _law_, we
can go no farther without ambiguity and fallacy, which will be but loss
of time; whereas, on the contrary, the agreement upon our words will
enlighten all we have to say hereafter.
_L._ I do not remember the definition of _law_ in any statute.
_P._ I think so: for the statutes were made by authority, and not drawn
from any other principles than the care of the safety of the people.
Statutes are not philosophy, as is the common-law, and other disputable
arts, but are commands or prohibitions, which ought to be obeyed,
because assented to by submission made to the Conqueror here in England,
and to whosoever had the sovereign power in other commonwealths; so that
the positive laws of all places are statutes. The definition of law was
therefore unnecessary for the makers of statutes, though very necessary
to them whose work it is to teach the sense of the law.
_L._ There is an accurate definition of a law in Bracton, cited by Sir
Edward Coke: _Lex est sanctio justa, jubens honesta, et prohibens
contraria_.
_P._ That is to say, law is a just statute, commanding those things
which are honest, and forbidding the contrary. From whence it followeth,
that in all cases it must be the honesty or dishonesty that makes the
command a law; whereas you know that but for the law we could not, as
saith St. Paul, have known what is sin. Therefore this definition is no
ground at all for any farther discourse of law. Besides, you know the
rule of honest and dishonest refers to honour, and that it is justice
only, and injustice, that the law respecteth. But that which I most
except against in this definition, is, that it supposes that a statute
made by the sovereign power of a nation may be unjust. There may indeed
in a statute-law, made by men, be found iniquity, but not injustice.
_L._ This is somewhat subtile. I pray deal plainly. What is the
difference between injustice and iniquity?
_P._ I pray you tell me first, what is the difference between a court of
justice, and a court of equity?