第84章 OF CIVIL LAWS(6)

For commentaries are commonly more subject to cavil than the text,and therefore need other commentaries;and so there will be no end of such interpretation.And therefore unless there be an interpreter authorized by the sovereign,from which the subordinate judges are not to recede,the interpreter can be no other than the ordinary judges,in the same manner as they are in cases of the unwritten law;and their sentences are to be taken by them that plead for laws in that particular case,but not to bind other judges in like cases to give like judgements.For a judge may err in the interpretation even of written laws;but no error of a subordinate judge can change the law,which is the general sentence of the sovereign.

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 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 judgement 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.

The abilities required in a good interpreter of the law,that is to say,in a good judge,are not the same with those of an advocate;namely,the study of the laws.For a judge,as he ought to take notice of the fact from none but the witnesses,so also he ought to take notice of the law from nothing but the statutes and constitutions of the sovereign,alleged in the pleading,or declared to him by some that have authority from the sovereign power to declare them;and need not take care beforehand what he shall judge;for it shall be given him what he shall say concerning the fact,by witnesses;and what he shall say in point of law,from those that shall in their pleadings show it,and by authority interpret it upon the place.The Lords of Parliament in England were judges,and most difficult causes have been heard and determined by them;yet few of them were much versed in the study of the laws,and fewer had made profession of them;and though they consulted with lawyers that were appointed to be present there for that purpose,yet they alone had the authority of giving sentence.In like manner,in the ordinary trials of right,twelve men of the common people are the judges and give sentence,not only of the fact,but of the right;and pronounce simply for the complainant or for the defendant;that is to say,are judges not only of the fact,but also of the right;and in a question of crime,not only determine whether done or not done,but also whether it be murder,homicide,felony,assault,and the like,which are determinations of law:but because they are not supposed to know the law of themselves,there is one that hath authority to inform them of it in the particular case they are to judge of.But yet if they judge not according to that he tells them,they are not subject thereby to any penalty;unless it be made appear they did it against their consciences,or had been corrupted by reward.

The things that make a good judge or good interpreter of the laws are,first,a right understanding of that principal law of nature called equity;which,depending not on the reading of other men's writings,but on the goodness of a man's own natural reason and meditation,is presumed to be in those most that had most leisure,and had the most inclination to meditate thereon.Secondly,contempt of unnecessary riches and preferments.Thirdly,to be able in judgement to divest himself of all fear,anger,hatred,love,and compassion.

Fourthly,and lastly,patience to hear,diligent attention in hearing,and memory to retain,digest,and apply what he hath heard.

The difference and division of the laws has been made in diverse manners,according to the different methods of those men that have written of them.For it is a thing that dependeth on nature,but on the scope of the writer,and is subservient to every man's proper method.In the Institutions of Justinian,we find seven sorts of civil laws:

1.The edicts,constitutions,and epistles of prince;that is,of the emperor,because the whole power of the people was in him.Like these are the proclamations of the kings of England.