words, it is well distinguished. For the significations of almost all words, 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 sig nified. Now the intention of the legislator is always sup posed 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 judgment until 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 eviIdent 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, that

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 have had most leisure, and had the most inclination to meditate thereon. Secondly, "contempt of unnecessary riches, and preferments." Thirdly, "to be able in judgment 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 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 man's proper method. In the Institutions of Justinian, we find seven sorts of civil laws:

1. The "edicts," "constitutions," and "epistles of the 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.

2. "The decrees of the whole people of Rome," comprehending the senate, when they were put to the question by the "senate." These were laws, at first, by the virtue of the sovereign power residing in the people; and such of them as by the emperors were not abrogated, remained laws by the authority imperial. For all laws that bind, are understood to be laws by his authority that has power to repeal them. Somewhat like to these laws, are the acts of parliament in England.

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3. "The decrees of the common people," excluding the senate, when they were put to the question by the "tribof the people. For such of them as were not abrogated by the emperors, remained laws by the authority imperial. 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 emperor, that men should consult the senate, instead of the people; and these have some resemblance with the acts of council.

5. "The edicts of prætors," and in some cases of "adiles": such as are the chief justices in the courts of England.

6. Responsa prudentum; which were the sentences, and opinion of those lawyers, to whom the emperor 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 judgment were obliged by the consti tutions of the emperor 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 customs," which in their own nature are an imitation of law, by the tacit consent of the emperor, in case they be not contrary to the law of nature, are very laws.

Another division of laws, is into "natural" and “positive." "Natural" are those which have been laws from all eternity; and are called not only "natural," but also "moral" laws; consisting in the moral virtues, 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 laws by the will of those that have had the sovereign power over others; and are either writ ten, or made known to men, by some other argument of the will of their legislator.

Again, of positive laws some are "human," some "divine"; and of human positive laws, some are "distributive," some “penal.” “Distributive" are those that determine the rights of the subjects, declaring 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; nevertheless the command is not addressed to the delinquent, who cannot be supposed will faithfully punish himself, but to public ministers appointed to see the penalty executed. And these penal laws are for the most part written together with the laws distributive; and are sometimes called judgments. For all laws are general judgments, or sentences of the legislator; as also every par ticular judgment, is a law to him whose case is judged.

"Divine positive laws" (for natural laws being eternal, and universal, are all divine), are those, which being the commandments of God, not from all eternity, nor univer sally addressed to all men, but only to a certain people, or to certain persons, are declared for such, by those whom God hath authorized to declare them. But this authority of man to declare what be these positive laws of God, how can it be known? God may command a man by a super