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 Lawes in that particular case; but not to bind other Judges, in like cases to give like judgements. For a Judge may erre in the Interpretation even of written Lawes; but no errour of a subordinate Judge, can change the Law, which is the generall Sentence of the Soveraigne.

The difference between the Letter and Sentence of the Law.

In written Lawes, 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, 'tis well distinguished. For the significations of almost all words, are either in themselves, or in the metaphoricall use of them, ambiguous; and may be drawn in argument, to make many senses; but there is onely one sense of the Law. But if by the Letter, be meant the literall sense, then the Letter, and the Sentence or intention of the Law, is all one. For the literall sense is that, which the Legislator intended, should by the letter of the Law be signified. Now the Intention of the Legislator is alwayes supposed to be Equity: For it were a great contumely for a Judge to think otherwise of the Soveraigne. He ought therefore, if the Word of the Law doe not fully authorise a reasonable Sentence, to supply it with the Law of Nature; or if the case be difficult, to respit 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 speciall Law ordained. It is evi[146]dent, 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. falsly of a fact, which the Judge saw himself 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 Soveraign that another be made Judge, and himself Witnesse. 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 Common-wealth.

The abilities required in a good Interpreter of the Law, The abilities that is to say, in a good Judge, are not the same required in a with those of an Advocate; namely the study of Judge. the Lawes. 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 S[t]atutes, and Constitutions of the Soveraign, alledged in the pleading, or declared to him by some that have authority from the Soveraign Power to declare them; and need not take care before-hand, what hee shall Judge; for it shall bee given him what hee shall say concerning the Fact, by Witnesses and what hee shall say in point of Law, from those that shall in their pleadings shew it, and by authority interpret it upon the place. The Lords of Parlament 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 Lawes, 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 trialls of Right, Twelve men of the common People, are the Judges, and give Sentence, not onely of the Fact, but of the Right; and pronounce simply for the Complaynant, or for the Defendant; that is to say, are Judges not onely of the Fact, but also of the Right and in a question of crime, not onely 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 enforme 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; unlesse 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 Lawes, are, first, A right understanding of that principall Law of Nature called Equity; which depending not on the reading of other mens Writings, but on the goodnesse of a mans own naturall [147] Reason, and Meditation, is presumed to be in those most, that have 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 devest himselfe of all feare, anger, hatred, love, and compassion. Fourthly, and lastly, Patience to heare; diligent attention in hearing; and memory to retain, digest and apply what he bath heard.

Divisions of Law.

The difference and division of the Lawes, has been made in divers manners, according to the different methods, of those men that have written of them. For it is a thing that dependeth not on Nature, but on the scope of the Writer; and is subservient to every mans proper method. In the Institutions of Justinian, we find seven sorts of Civill Lawes. 1. The Edicts, Constitutions, and Epistles of the Prince, that is, of the Emperour; because the whole power of the people was in him. Like these, are the Proclamations of the Kings of England.

2. The Decrees of the whole people of Rome (comprehending the Senate,) when they were put to the Question by the Senate. These were Lawes, at first, by the vertue of the Soveraign Power residing in the people; and such of them as by the Emperours were not abrogated, remained Lawes by the Authority Imperiall. For all Lawes that bind, are understood to be Lawes by his authority that has power to repeale them. Somewhile like to these Lawes, are the Acts of Parliament in England.

3. The Decrees of the Common people (excluding the Senate,) when they were put to the question by the Tribune of the people. For such of them as were not abrogated by the Emperours, remained Lawes by the Authority Imperiall. Like to these, were the Orders of the House of Commons in England.

4. Senatus consulta, the Orders of the Senate; because

when the people of Rome grew so numerous, as it was inconvenient to assemble them; it was thought fit by the Emperour, that men should Consult the Senate, in stead of the people And these have some resemblance with the Acts of Counsell.

5. The Edicts of Prætors, and (in some Cases) of the Ediles such as are the Chiefe Justices in the Courts of England.

6. Responsa Prudentum; which were the Sentences, and Opinions of those Lawyers, to whom the Emperour gave Authority to interpret the Law, and to give answer to such as in matter of Law demanded their advice; which Answers, the Judges in giving Judgement were obliged by the Constitutions of the Emperour to observe: And should be like the Reports of Cases Judged, if other Judges be by the Law of England bound to observe them. For the Judges of the Common Law of England, are not properly Judges, but Juris Consulti; of whom the Judges, who are either the Lords, or Twelve men of the Country, are in point of Law to

ask advice.

7. Also, Unwritten Customes, (which in their own nature. are an imitation of Law,) by the tacite consent of the Emperour, in case they be not contrary to the Law of Nature, are very Lawes.

Another division of Lawes, is into Naturall and Positive. Natu[148]rall are those which have been Lawes from all Eternity; and are called not onely Naturall, but also Morall Lawes; consisting in the Morall Vertues, as Justice, Equity, and all habits of the mind that conduce to Peace, and Charity; of which I have already spoken in the fourteenth and fifteenth Chapters.

Positive, are those which have not been from Eternity; but have been made Lawes by the Will of those that have had the Soveraign Power over others; and are either written, or made known to men, by some other argument of the Will of their Legislator.

Again, of Positive Lawes some are Humane, some Divine : And of Humane positive lawes, some are Distributive, some Penal. Distributive are those that determine the Rights of the Subjects, declaring

Another Division of

Law.

to every man what it is, by which he acquireth and holdeth a propriety in lands, or goods, and a right or liberty of action: and these speak to all the Subjects. Penal are those, which declare, what Penalty shall be inflicted on those that violate the Law; and speak to the Ministers and Officers ordained for execution. For though every one ought to be informed of the Punishments ordained beforehand for their transgression; neverthelesse the Command is not addressed to the Delinquent, (who cannot be supposed will faithfully punish himselfe,) but to publique Ministers appointed to see the Penalty executed. And these Penal Lawes are for the most part written together with the Lawes Distributive; and are sometimes called Judgements. For all Lawes are generall Judgements, or Sentences of the Legislator; as also every particular Judgement, is a Law to him, whose case is Judged.

Divine Positive Law how made known to be Law.

Divine Positive Lawes (for Naturall Lawes being Eternall, and Universall, are all Divine,) are those, which being the Commandements of God, (not from all Eternity, nor universally addressed to all men, but onely to a certain people, or to certain persons,) are declared for such, by those whom God hath authorised to declare them. But this Authority of man to declare what be these Positive Lawes of God, how can it be known? God may command a man by a supernaturall way, to deliver Lawes to other men. But because it is of the essence of Law, that he who is to be obliged, be assured of the Authority of him that declareth it, which we cannot naturally take notice to be from God, How can a man without supernaturall Revelation be assured of the Revelation received by the declarer? and how can he be bound to obey them? For the first question, how a man can be assured of the Revelation of another, without a Revelation particularly to himselfe, it is evidently impossible: For though a man may be induced to believe such Revelation, from the Miracles they see him doe, or from seeing the Extraordinary sanctity of his life, or from seeing the Extraordinary wisedome, or Extraordinary felicity of his Actions, all which are marks of [God's] extraordinary favour; yet they are not assured evidences of speciall Revelation. Miracles are Marvellous workes: but that which is marvellous to one, may not be so to another. Sanctity may be