Hobbes - Leviathan.pdf

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