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._ I think he may avoid both, if he take care by his sentence that he
neither punish an innocent man, nor deprive him of his damages due from
one that maliciously sueth him without reasonable cause, which to the
most of rational men and unbiassed, is not, in my opinion, very
difficult. And though a judge should, as all men may do, err in his
judgment, yet there is always such power in the laws of England, as may
content the parties, either in the Chancery, or by commissioners of
their own choosing, authorized by the King; for every man is bound to
acquiesce in the sentence of the judges he chooseth.
_L._ In what cases can the true construction of the letter be contrary
to the meaning of the lawmaker?
_P._ Very many, whereof Sir Edward Coke nameth three: fraud, accident,
and breach of confidence. But there be many more; for there be a very
great many reasonable exceptions almost to every general rule, which the
makers of the rule could not foresee; and very many words in every
statute, especially long ones, that are, as to _grammar_, of ambiguous
signification, and yet to them that know well to what end the statute
was made, perspicuous enough; and many connexions of doubtful reference,
which by a _grammarian_ may be cavilled at, though the intention of the
lawmaker be never so perspicuous. And these are the difficulties which
the judges ought to master, and can do it in respect of their ability
for which they are chosen, as well as can be hoped for; and yet there
are other men can do the same, or else the judges' places could not be
from time to time supplied. The bishops commonly are the most able and
rational men, and obliged by their profession to study equity, because
it is the law of God; and are therefore capable of being judges in a
court of equity. They are the men that teach the people what is sin;
that is to say, they are the doctors in cases of conscience. What reason
then can you show me, why it is unfit and hurtful to the commonwealth
that a bishop should be a Chancellor; as they were most often before the
time of Henry VIII, and since that time once in the reign of King James?
_L._ But Sir Edward says, that soon after that a Chancellor was made
which was no professor of the law, he finds in the rolls of the
Parliament a grievous complaint by the whole body of the realm, and a
petition that the most wise and able men within the realm might be
chosen Chancellors.
_P._ That petition was reasonable; but it does not say which are the
abler men, the judges of the common-law, or the bishops.
_L._ That is not the great question as to the ability of a judge; both
of one and the other, there are able men in their own way. But when a
judge of equity has need, almost in every case, to consider as well the
statute-law, as the law of reason, he cannot perform his office
perfectly, unless he be also ready in the statutes.