Books: Leviathan

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Provinciall Lawes Are Not Made By Custome,
But By The Soveraign Power
5. If the Soveraign of one Common-wealth, subdue a people that
have lived under other written Lawes, and afterwards govern
them by the same Lawes, by which they were governed before;
yet those Lawes are the Civill Lawes of the Victor, and not
of the Vanquished Common-wealth, For the Legislator is he,
not by whose authority the Lawes were first made, but by whose
authority they now continue to be Lawes. And therefore where
there be divers Provinces, within the Dominion of a Common-wealth,
and in those Provinces diversity of Lawes, which commonly are called
the Customes of each severall Province, we are not to understand
that such Customes have their Force, onely from Length of Time;
but that they were antiently Lawes written, or otherwise made known,
for the Constitutions, and Statutes of their Soveraigns; and are
now Lawes, not by vertue of the Praescription of time, but by
the Constitutions of their present Soveraigns. But if an unwritten Law,
in all the Provinces of a Dominion, shall be generally observed,
and no iniquity appear in the use thereof; that law can be no other
but a Law of Nature, equally obliging all man-kind.

Some Foolish Opinions Of Lawyers Concerning
The Making Of Lawes
6. Seeing then all Lawes, written, and unwritten, have their Authority,
and force, from the Will of the Common-wealth; that is to say,
from the Will of the Representative; which in a Monarchy is the Monarch,
and in other Common-wealths the Soveraign Assembly; a man may wonder
from whence proceed such opinions, as are found in the Books
of Lawyers of eminence in severall Common-wealths, directly,
or by consequence making the Legislative Power depend on private men,
or subordinate Judges. As for example, "That the Common Law, hath no
Controuler but the Parlament;" which is true onely where a Parlament
has the Soveraign Power, and cannot be assembled, nor dissolved,
but by their own discretion. For if there be a right in any else
to dissolve them, there is a right also to controule them,
and consequently to controule their controulings. And if there be
no such right, then the Controuler of Lawes is not Parlamentum,
but Rex In Parlamento. And where a Parlament is Soveraign,
if it should assemble never so many, or so wise men, from the
Countries subject to them, for whatsoever cause; yet there is no man
will believe, that such an Assembly hath thereby acquired to themselves
a Legislative Power. Item, that the two arms of a Common-wealth,
are Force, and Justice; The First Whereof Is In The King; The Other
Deposited In The Hands Of The Parlament. As if a Common-wealth
could consist, where the Force were in any hand, which Justice had not
the Authority to command and govern.

7. That Law can never be against Reason, our Lawyers are agreed;
and that not the Letter,(that is, every construction of it,) but that
which is according to the Intention of the Legislator, is the Law.
And it is true: but the doubt is, of whose Reason it is, that shall
be received for Law. It is not meant of any private Reason;
for then there would be as much contradiction in the Lawes,
as there is in the Schooles; nor yet (as Sr. Ed, Coke makes it
(Sir Edward Coke, upon Littleton Lib.2. Ch.6 fol 97.b),) an Artificiall
Perfection of Reason, Gotten By Long Study, Observation, And Experience,
(as his was.) For it is possible long study may encrease, and confirm
erroneous Sentences: and where men build on false grounds, the more
they build, the greater is the ruine; and of those that study,
and observe with equall time, and diligence, the reasons and
resolutions are, and must remain discordant: and therefore it is not
that Juris Prudentia, or wisedome of subordinate Judges; but the Reason
of this our Artificiall Man the Common-wealth, and his Command,
that maketh Law: And the Common-wealth being in their Representative
but one Person, there cannot easily arise any contradiction in the Lawes;
and when there doth, the same Reason is able, by interpretation,
or alteration, to take it away. In all Courts of Justice,
the Soveraign (which is the Person of the Common-wealth,) is he
that Judgeth: The subordinate Judge, ought to have regard to the reason,
which moved his Soveraign to make such Law, that his Sentence may be
according thereunto; which then is his Soveraigns Sentence;
otherwise it is his own, and an unjust one.

Law Made, If Not Also Made Known, Is No Law
8. From this, that the Law is a Command, and a Command consisteth
in declaration, or manifestation of the will of him that commandeth,
by voyce, writing, or some other sufficient argument of the same,
we may understand, that the Command of the Common-wealth, is Law onely
to those, that have means to take notice of it. Over naturall fooles,
children, or mad-men there is no Law, no more than over brute beasts;
nor are they capable of the title of just, or unjust; because they
had never power to make any covenant, or to understand the consequences
thereof; and consequently never took upon them to authorise the actions
of any Soveraign, as they must do that make to themselves a Common-wealth.
And as those from whom Nature, or Accident hath taken away the notice
of all Lawes in generall; so also every man, from whom any accident,
not proceeding from his own default, hath taken away the means to
take notice of any particular Law, is excused, if he observe it not;
And to speak properly, that Law is no Law to him. It is therefore
necessary, to consider in this place, what arguments, and signes
be sufficient for the knowledge of what is the Law; that is to say,
what is the will of the Soveraign, as well in Monarchies, as in other
formes of government.

Unwritten Lawes Are All Of Them Lawes Of Nature
And first, if it be a Law that obliges all the Subjects without exception,
and is not written, nor otherwise published in such places as they
may take notice thereof, it is a Law of Nature. For whatsoever men
are to take knowledge of for Law, not upon other mens words,
but every one from his own reason, must be such as is agreeable
to the reason of all men; which no Law can be, but the Law of Nature.
The Lawes of Nature therefore need not any publishing, nor Proclamation;
as being contained in this one Sentence, approved by all the world,
"Do not that to another, which thou thinkest unreasonable to be done
by another to thy selfe."

Secondly, if it be a Law that obliges only some condition of men,
or one particular man and be not written, nor published by word,
then also it is a Law of Nature; and known by the same arguments, and
signs, that distinguish those in such a condition, from other Subjects.
For whatsoever Law is not written, or some way published by him
that makes it Law, can be known no way, but by the reason of him
that is to obey it; and is therefore also a Law not only Civill,
but Naturall. For example, if the Soveraign employ a Publique Minister,
without written Instructions what to doe; he is obliged to take
for Instructions the Dictates of Reason; As if he make a Judge,
The Judge is to take notice, that his Sentence ought to be according
to the reason of his Soveraign, which being alwaies understood
to be Equity, he is bound to it by the Law of Nature: Or if an Ambassador,
he is (in al things not conteined in his written Instructions)
to take for Instruction that which Reason dictates to be most
conducing to his Soveraigns interest; and so of all other Ministers
of the Soveraignty, publique and private. All which Instructions
of naturall Reason may be comprehended under one name of Fidelity;
which is a branch of naturall Justice.

The Law of Nature excepted, it belongeth to the essence of all
other Lawes, to be made known, to every man that shall be obliged
to obey them, either by word, or writing, or some other act,
known to proceed from the Soveraign Authority. For the will of another,
cannot be understood, but by his own word, or act, or by conjecture
taken from his scope and purpose; which in the person of the
Common-wealth, is to be supposed alwaies consonant to Equity and Reason.
And in antient time, before letters were in common use, the Lawes
were many times put into verse; that the rude people taking pleasure in
singing, or reciting them, might the more easily reteine them in memory.
And for the same reason Solomon adviseth a man, to bind the ten
Commandements (Prov. 7. 3) upon his ten fingers. And for the Law
which Moses gave to the people of Israel at the renewing of the Covenant,
(Deut. 11. 19) he biddeth them to teach it their Children,
by discoursing of it both at home, and upon the way; at going to bed,
and at rising from bed; and to write it upon the posts, and dores
of their houses; and (Deut. 31. 12) to assemble the people, man,
woman, and child, to heare it read.

Nothing Is Law Where The Legislator Cannot Be Known
Nor is it enough the Law be written, and published; but also that there
be manifest signs, that it proceedeth from the will of the Soveraign.
For private men, when they have, or think they have force enough
to secure their unjust designes, and convoy them safely to their
ambitious ends, may publish for Lawes what they please, without,
or against the Legislative Authority. There is therefore requisite,
not only a Declaration of the Law, but also sufficient signes
of the Author, and Authority. The Author, or Legislator is supposed
in every Common-wealth to be evident, because he is the Soveraign,
who having been Constituted by the consent of every one, is supposed
by every one to be sufficiently known. And though the ignorance,
and security of men be such, for the most part, as that when the memory
of the first Constitution of their Common-wealth is worn out,
they doe not consider, by whose power they use to be defended
against their enemies, and to have their industry protected,
and to be righted when injury is done them; yet because no
man that considers, can make question of it, no excuse can be
derived from the ignorance of where the Soveraignty is placed.
And it is a Dictate of Naturall Reason, and consequently an
evident Law of Nature, that no man ought to weaken that power,
the protection whereof he hath himself demanded, or wittingly received
against others. Therefore of who is Soveraign, no man, but by
his own fault, (whatsoever evill men suggest,) can make any doubt.
The difficulty consisteth in the evidence of the Authority derived
from him; The removing whereof, dependeth on the knowledge of the
publique Registers, publique Counsels, publique Ministers, and
publique Seales; by which all Lawes are sufficiently verified.

Difference Between Verifying And Authorising
Verifyed, I say, not Authorised: for the Verification, is but
the Testimony and Record; not the Authority of the law; which consisteth
in the Command of the Soveraign only.

The Law Verifyed By The Subordinate Judge
If therefore a man have a question of Injury, depending on the
Law of Nature; that is to say, on common Equity; the Sentence
of the Judge, that by Commission hath Authority to take cognisance
of such causes, is a sufficient Verification of the Law of Nature
in that individuall case. For though the advice of one that professeth
the study of the Law, be usefull for the avoyding of contention;
yet it is but advice; tis the Judge must tell men what is Law,
upon the hearing of the Controversy.

By The Publique Registers
But when the question is of injury, or crime, upon a written Law;
every man by recourse to the Registers, by himself, or others,
may (if he will) be sufficiently enformed, before he doe such injury,
or commit the crime, whither it be an injury, or not: Nay he ought to
doe so: for when a man doubts whether the act he goeth about, be just,
or injust; and may informe himself, if he will; the doing is unlawfull.
In like manner, he that supposeth himself injured, in a case determined
by the written Law, which he may by himself, or others see and consider;
if he complaine before he consults with the Law, he does unjustly,
and bewrayeth a disposition rather to vex other men, than to demand
his own right.

By Letters Patent, And Publique Seale
If the question be of Obedience to a publique Officer; To have seen
his Commission, with the Publique Seale, and heard it read; or to
have had the means to be informed of it, if a man would, is a sufficient
Verification of his Authority. For every man is obliged to doe
his best endeavour, to informe himself of all written Lawes,
that may concerne his own future actions.

The Interpretation Of The Law Dependeth
On The Soveraign Power
The Legislator known; and the Lawes, either by writing, or by the light of Nature, sufficiently published; there wanteth yet another very materiall circumstance to make them obligatory. For it is not the Letter, but the Intendment, or Meaning; that is to say, the authentique Interpretation of the Law (which is the sense of the Legislator,) in which the nature of the Law consisteth; And therefore the Interpretation of all Lawes dependeth on the Authority Soveraign; and the Interpreters can be none but those, which the Soveraign, (to whom only the Subject oweth obedience) shall appoint. For else, by the craft of an Interpreter, the Law my be made to beare a sense, contrary to that of the Soveraign; by which means the Interpreter becomes the Legislator.

All Lawes Need Interpretation
All Laws, written, and unwritten, have need of Interpretation.
The unwritten Law of Nature, though it be easy to such, as without
partiality, and passion, make use of their naturall reason,
and therefore leaves the violators thereof without excuse;
yet considering there be very few, perhaps none, that in some cases
are not blinded by self love, or some other passion, it is now become
of all Laws the most obscure; and has consequently the greatest need
of able Interpreters. The written Laws, if they be short, are easily
mis-interpreted, from the divers significations of a word, or two;
if long, they be more obscure by the diverse significations of
many words: in so much as no written Law, delivered in few,
or many words, can be well understood, without a perfect understanding
of the finall causes, for which the Law was made; the knowledge of
which finall causes is in the Legislator. To him therefore there can
not be any knot in the Law, insoluble; either by finding out the ends,
to undoe it by; or else by making what ends he will, (as Alexander
did with his sword in the Gordian knot,) by the Legislative power;
which no other Interpreter can doe.

The Authenticall Interpretation Of Law Is Not
That Of Writers
The Interpretation of the Lawes of Nature, in a Common-wealth,
dependeth not on the books of Morall Philosophy. The Authority
of writers, without the Authority of the Common-wealth, maketh not
their opinions Law, be they never so true. That which I have written
in this Treatise, concerning the Morall Vertues, and of their necessity,
for the procuring, and maintaining peace, though it bee evident Truth,
is not therefore presently Law; but because in all Common-wealths
in the world, it is part of the Civill Law: For though it be
naturally reasonable; yet it is by the Soveraigne Power that
it is Law: Otherwise, it were a great errour, to call the Lawes
of Nature unwritten Law; whereof wee see so many volumes published,
and in them so many contradictions of one another, and of themselves.

The Interpreter Of The Law Is The Judge Giving Sentence
Viva Voce In Every Particular Case
The Interpretation of the Law of Nature, is the Sentence of the Judge
constituted by the Soveraign Authority, to heare and determine
such controversies, as depend thereon; and consisteth in the
application of the Law to the present case. For in the act of
Judicature, the Judge doth no more but consider, whither the demand
of the party, be consonant to naturall reason, and Equity;
and the Sentence he giveth, is therefore the Interpretation
of the Law of Nature; which Interpretation is Authentique;
not because it is his private Sentence; but because he giveth it by
Authority of the Soveraign, whereby it becomes the Soveraigns Sentence;
which is Law for that time, to the parties pleading.

The Sentence Of A Judge, Does Not Bind Him, Or Another
Judge To Give Like Sentence In Like Cases Ever After
But because there is no Judge Subordinate, nor Soveraign, but may
erre in a Judgement of Equity; if afterward in another like case
he find it more consonant to Equity to give a contrary Sentence,
he is obliged to doe it. No mans error becomes his own Law;
nor obliges him to persist in it. Neither (for the same reason)
becomes it a Law to other Judges, though sworn to follow it.
For though a wrong Sentence given by authority of the Soveraign,
if he know and allow it, in such Lawes as are mutable, be a
constitution of a new Law, in cases, in which every little
circumstance is the same; yet in Lawes immutable, such as are
the Lawes of Nature, they are no Lawes to the same, or other Judges,
in the like cases for ever after. Princes succeed one another;
and one Judge passeth, another commeth; nay, Heaven and Earth
shall passe; but not one title of the Law of Nature shall passe;
for it is the Eternall Law of God. Therefore all the Sentences
of precedent Judges that have ever been, cannot all together make
a Law contrary to naturall Equity: Nor any Examples of former Judges,
can warrant an unreasonable Sentence, or discharge the present Judge
of the trouble of studying what is Equity (in the case he is to Judge,)
from the principles of his own naturall reason. For example sake,
'Tis against the Law of Nature, To Punish The Innocent; and Innocent
is he that acquitteth himselfe Judicially, and is acknowledged
for Innocent by the Judge. Put the case now, that a man is accused
of a capitall crime, and seeing the powers and malice of some enemy,
and the frequent corruption and partiality of Judges, runneth away
for feare of the event, and afterwards is taken, and brought to a
legall triall, and maketh it sufficiently appear, he was not guilty
of the crime, and being thereof acquitted, is neverthelesse condemned
to lose his goods; this is a manifest condemnation of the Innocent.
I say therefore, that there is no place in the world, where this
can be an interpretation of a Law of Nature, or be made a Law by
the Sentences of precedent Judges, that had done the same.
For he that judged it first, judged unjustly; and no Injustice
can be a pattern of Judgement to succeeding Judges. A written Law
may forbid innocent men to fly, and they may be punished for flying:
But that flying for feare of injury, should be taken for presumption
of guilt, after a man is already absolved of the crime Judicially,
is contrary to the nature of a Presumption, which hath no place
after Judgement given. Yet this is set down by a great Lawyer
for the common Law of England. "If a man," saith he, "that is Innocent,
be accused of Felony, and for feare flyeth for the same; albeit he
judicially acquitteth himselfe of the Felony; yet if it be found that
he fled for the Felony, he shall notwithstanding his Innocency,
Forfeit all his goods, chattels, debts, and duties. For as to the
Forfeiture of them, the Law will admit no proofe against the
Presumption in Law, grounded upon his flight." Here you see,
An Innocent Man, Judicially Acquitted, Notwithstanding His Innocency,
(when no written Law forbad him to fly) after his acquitall,
Upon A Presumption In Law, condemned to lose all the goods he hath.
If the Law ground upon his flight a Presumption of the fact,
(which was Capitall,) the Sentence ought to have been Capitall:
if the presumption were not of the Fact, for what then ought he
to lose his goods? This therefore is no Law of England; nor is
the condemnation grounded upon a Presumption of Law, but upon
the Presumption of the Judges. It is also against Law, to say
that no Proofe shall be admitted against a Presumption of Law.
For all Judges, Soveraign and subordinate, if they refuse to
heare Proofe, refuse to do Justice: for though the Sentence be Just,
yet the Judges that condemn without hearing the Proofes offered,
are Unjust Judges; and their Presumption is but Prejudice;
which no man ought to bring with him to the Seat of Justice,
whatsoever precedent judgements, or examples he shall pretend to follow.
There be other things of this nature, wherein mens Judgements
have been perverted, by trusting to Precedents: but this is enough
to shew, that though the Sentence of the Judge, be a Law to the
party pleading, yet it is no Law to any Judge, that shall succeed
him in that Office.

In like manner, when question is of the Meaning of written Lawes,
he is not the Interpreter of them, that writeth a Commentary upon them.
For Commentaries are commonly more subject to cavill, than the Text;
and therefore need other Commentaries; and so there will be no end
of such Interpretation. And therefore unlesse there be an Interpreter
authorised by the Soveraign, from which the subordinate Judges
are not to recede, the Interpreter can be no other than the ordinary Judges, in the some 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 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 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
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 himselfe 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 Judge
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 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 Statutes,
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 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 Hath Heard.