Part II, Chapter XXVI, 2

Nor is it enough for the Law to be written and published: there must also be visible signs that it proceeds from the will of the Sovereign. For private persons, when they have, or believe they have, force enough to secure their unjust designs and carry them safely to their ambitious ends, may publish whatever they please as Laws, without or against the legislative authority. What is required, therefore, is not only a declaration of the Law, but sufficient signs of its author and his authority. The author, or legislator, is presumed to be evident in every Commonwealth, since he is the Sovereign, constituted by the consent of each person and therefore presumed to be sufficiently known to all. And although men's ignorance and complacency are usually such that, once the memory of the first establishment of their Commonwealth has faded, they do not consider whose power defends them against their enemies, protects their work, and grants them redress for injuries, still no one who gives the matter thought can doubt whose power it is; ignorance of where Sovereignty lies therefore affords no excuse. It is a dictate of natural reason, and consequently an evident Law of Nature, that no one ought to weaken the power whose protection he himself has sought or knowingly accepted against others. Thus no one can doubt who is Sovereign except through his own fault, whatever wicked men may suggest. The difficulty lies in proving an authority derived from him. Resolving it depends on knowledge of the public registers, public councils, public ministers, and public seals, by which all Laws are sufficiently verified.

Verified, I say, not authorized: verification is only testimony and record, not the authority of the Law, which consists solely in the command of the Sovereign.

If, then, a person has a question of injury that depends on the Law of Nature, that is, on common equity, the judgment of a judge commissioned to hear such cases sufficiently verifies the Law of Nature in that particular case. For although the advice of someone who professes to study the Law is useful in avoiding disputes, it remains only advice: the judge must tell people what the Law is after hearing the controversy.

But when the question concerns an injury or crime under a written Law, anyone can consult the registers, himself or through others, and, if he wishes, learn sufficiently before committing the act whether it is an injury or not. Indeed, he ought to do so: when someone doubts whether an act he is about to perform is just or unjust, and can inform himself if he wishes, to perform it is unlawful. Likewise, if someone believes himself injured in a matter settled by a written Law that he can see and consider, himself or through others, he acts unjustly if he complains before consulting the Law, betraying a desire to vex others rather than claim his right.

If the question concerns obedience to a public officer, seeing his commission with the public seal and hearing it read, or having the means to learn its contents if one wishes, sufficiently verifies his authority. For everyone is obliged to do his best to inform himself of all written Laws that may concern his future actions.

When the legislator is known, and the Laws have been sufficiently published, whether in writing or by the light of nature, one more essential condition is needed to make them binding. For the nature of the Law lies not in its letter but in its intention or meaning: that is, in its authentic interpretation, which is the legislator's sense. Therefore the interpretation of all Laws depends on Sovereign authority, and no one can interpret them except those whom the Sovereign, to whom alone the Subject owes obedience, appoints. Otherwise an interpreter's craft might make the Law bear a meaning contrary to the Sovereign's, and so make the interpreter the legislator.

All Laws, written and unwritten, need interpretation. The unwritten Law of Nature is easy for those who use their natural reason without partiality or passion, and it therefore leaves its violators without excuse. Yet since very few people, perhaps none, are never blinded in some case by self-love or another passion, it has now become the most obscure of all Laws, and consequently has the greatest need of competent interpreters. Short written Laws are easily misinterpreted because a word or two can have different meanings; long ones become more obscure through the different meanings of many words. Thus no written Law, however few or many its words, can be properly understood without a full understanding of the final purposes for which it was made, purposes known to the legislator. No knot in the Law can therefore remain insoluble to him: he may find the ends by which to untie it, or use his legislative power to establish whatever ends he wishes, as Alexander did with his sword at the Gordian knot. No other interpreter can do this.

The interpretation of the Laws of Nature in a Commonwealth does not depend on books of moral philosophy. Without the authority of the Commonwealth, the authority of writers does not make their opinions Law, however true those opinions may be. What I have written in this treatise about the moral virtues and their necessity for obtaining and maintaining peace, though evidently true, is not for that reason immediately Law; it is Law because it forms part of the civil Law in every Commonwealth in the world. Though naturally reasonable, it is made Law by the Sovereign Power. Otherwise it would be a grave error to call the Laws of Nature unwritten Law, when we see so many volumes published about them, containing so many contradictions both of one another and of themselves.

The interpretation of the Law of Nature is the judgment of a judge appointed by Sovereign authority to hear and decide controversies depending on it, and consists in applying the Law to the present case. In judging, the judge does no more than consider whether a party's claim agrees with natural reason and equity; the judgment he gives is therefore an interpretation of the Law of Nature. It is authentic not because it is his private opinion, but because he delivers it by authority of the Sovereign, making it the Sovereign's judgment and Law for that time to the parties before him.

But since any judge, whether subordinate or Sovereign, may err in a judgment of equity, if he later finds in another similar case that a contrary judgment better accords with equity, he is obliged to give it. No one's error becomes a Law for himself or obliges him to persist in it. For the same reason it does not become a Law for other judges, even if they are sworn to follow it. A mistaken judgment delivered by Sovereign authority, if the Sovereign knows and approves it, may constitute a new Law among mutable Laws in cases where every small circumstance is identical. But with immutable Laws, such as the Laws of Nature, mistaken judgments make no Law for the same judge or for other judges in similar cases ever afterward. Princes succeed one another; one judge departs and another arrives; even heaven and earth shall pass away, but not one stroke of the Law of Nature shall pass away, for it is the eternal Law of God. Thus all the judgments of all former judges together cannot make a Law contrary to natural equity. Nor can the examples of earlier judges justify an unreasonable judgment, or spare a present judge the labor of determining equity in the case before him by the principles of his own natural reason. For example, it is against the Law of Nature to punish the innocent; and a person is innocent who has been judicially acquitted and acknowledged innocent by the judge. Suppose a man is accused of a capital crime. Knowing the power and malice of an enemy, and the frequent corruption and partiality of judges, he flees for fear of the outcome. Later he is captured and brought to lawful trial, proves sufficiently that he did not commit the crime, and is acquitted, but is nevertheless condemned to lose his goods. This is plainly a condemnation of the innocent. I say, then, that nowhere in the world can this be an interpretation of a Law of Nature, or be made Law by judgments of earlier judges who did the same. The first judge acted unjustly, and injustice cannot serve as a model for later judges. A written Law may forbid innocent people to flee, and they may be punished for fleeing. But after a person has been judicially acquitted of a crime, to treat flight from fear of injury as a presumption of guilt is contrary to the nature of a presumption, which has no place once judgment is given. Yet a great lawyer sets this down as the common Law of England. “If a man,” he says, “who is innocent is accused of felony and flees for fear of it, even though he judicially acquits himself of the felony, still, if it is found that he fled because of the felony, he shall, notwithstanding his innocence, forfeit all his goods, chattels, debts, and dues. For as regards their forfeiture, the Law will admit no proof against the presumption in Law founded upon his flight.” Here you see an innocent man, judicially acquitted, notwithstanding his innocence and when no written Law forbade him to flee, condemned after his acquittal, upon a presumption in Law, to lose all his goods. If the Law grounds on his flight a presumption that he committed the offense—which was a capital one—the judgment ought to have been capital. If it is not a presumption that he committed the offense, why should he lose his goods? This, therefore, is no Law of England; nor is the condemnation grounded on a presumption of Law, but on the presumption of the judges. It is also against Law to say that no proof shall be admitted against a presumption of Law. For judges, Sovereign and subordinate alike, refuse to do justice if they refuse to hear proof. Even if the judgment itself is just, judges who condemn without hearing the evidence offered are unjust judges; their presumption is only prejudice, which no one should bring to the seat of justice, whatever earlier judgments or examples he claims to follow. There are other matters of this kind in which reliance on precedents has corrupted men's judgments. But this suffices to show that, although the judge's judgment is Law to the party before him, it is not Law to a judge who later succeeds him in office.

Likewise, when the question concerns the meaning of written Laws, the person who writes a commentary on them is not their interpreter. For commentaries are usually more open to quibbling than the text itself, and so need further commentaries, with no end to such interpretation. Therefore, unless there is an interpreter authorized by the Sovereign from whom subordinate judges may not depart, the interpreters can only be the ordinary judges, as they are in cases of unwritten Law. The parties before them must accept their judgments as Law in that particular case, but other judges are not bound to give like judgments in like cases. A judge may err even in interpreting written Laws; but no error by a subordinate judge can change the Law, which is the general judgment of the Sovereign.

In written Laws, people commonly distinguish between the letter and the sense of the Law; and the distinction is sound if by the letter they mean whatever can be drawn from the bare words. For the meanings of almost all words, whether in themselves or in metaphorical use, are ambiguous and can be made to support many senses in argument; but the Law has only one sense. If, however, by the letter they mean the literal sense, then the letter and the sense or intention of the Law are the same. For the literal sense is the sense consistent with equity, which must always be presumed to be the legislator's intention: it would be a grave insult for a judge to think otherwise of the Sovereign. If the words of the Law do not fully authorize a reasonable judgment, the judge should therefore supply what is lacking from the Law of Nature; or, if the case is difficult, postpone judgment until he has received fuller authority. For example, a written Law ordains that anyone driven from his house by force shall be restored to it by force. A man negligently leaves his house empty, and when he returns is kept out by force; no special Law addresses this case. Clearly it falls under the same Law, since otherwise he has no remedy at all, contrary to the presumed intention of the legislator. Again, the words of a Law command a judge to judge according to the evidence. A man is falsely accused of an act the judge himself saw another man commit, and saw that the accused did not commit. Here the judge must neither follow the letter of the Law to condemn the innocent nor give judgment contrary to the witnesses' evidence, since the letter of the Law forbids that too. Instead he must arrange for the Sovereign to appoint another judge and himself become a witness. Thus the harm that follows from the bare words of a written Law may lead the judge to its intention and help him interpret it better, though no harm can justify a judgment against the Law. For not everyone who judges right and wrong is also a judge of what benefits or harms the Commonwealth.

Nor is it enough for a law to be written down and published. There must also be clear signs that it comes from the sovereign’s will. Private people who have, or think they have, enough force to carry out unjust plans and achieve their ambitions safely may publish whatever they please as laws, without the legislature’s authority or even against it. So a law needs not just to be announced. There must also be adequate signs of who made it and by what authority. In every commonwealth, its maker, or legislator, is assumed to be clear: the sovereign was established by everyone’s consent and is therefore assumed to be known to everyone. People are often so ignorant and careless that, once the memory of the founding of their commonwealth has faded, they do not consider whose power defends them from enemies, protects their work, and gives them justice when they are wronged. But anyone who thinks about it can have no doubt. Ignorance about where sovereignty lies is no excuse. Natural reason dictates, and the Law of Nature clearly requires, that no one should weaken the power whose protection he himself has asked for or knowingly accepted against others. So no one can doubt who the sovereign is without being at fault himself, whatever wicked people may suggest. The difficulty is proving authority delegated by the sovereign. Resolving that difficulty depends on knowing the public registers, public councils, public officials, and public seals. These provide sufficient verification of all laws.

I say verification, not authorization. Verification is only testimony and a record. It is not the law’s authority, which consists only in the sovereign’s command.

Suppose a person raises a question about an injury under the Law of Nature, that is, under common equity. A ruling by a judge authorized to hear such cases adequately verifies the Law of Nature for that particular case. Advice from someone who studies the law can help avoid disputes, but it remains only advice. After hearing the dispute, the judge must tell people what the law is.

But when a question about an injury or crime depends on a written law, anyone can look at the registers himself or ask someone else to do so. If he wishes, he can learn before acting whether the proposed act is an injury or crime. Indeed, he should do this. If someone doubts whether an act he is about to do is right or wrong, and could find out, it is unlawful for him to go ahead. Similarly, suppose someone thinks he has been wronged in a case governed by a written law that he could read and consider himself or through someone else. If he complains before consulting the law, he acts unjustly. He shows a wish to trouble other people rather than claim his rights.

If the question is whether to obey a public officer, seeing his commission with the public seal and hearing it read is enough to verify his authority. So is having the opportunity to learn about it if one wishes. Everyone is obliged to do his best to learn all written laws that may affect his future actions.

Even when the legislator is known and the laws have been adequately published, either in writing or by the light of nature, one more important condition is needed to make them binding. The law is not its words but its intended meaning. That is its authentic interpretation, which expresses what the legislator means. Therefore the interpretation of every law depends on sovereign authority. The only interpreters are those appointed by the sovereign, to whom alone the subject owes obedience. Otherwise a clever interpreter could give the law a meaning contrary to the sovereign’s meaning and become the legislator himself.

All laws, written and unwritten, need interpretation. The unwritten Law of Nature is easy to understand for people who use their natural reason without bias or passion. Those who violate it therefore have no excuse. Yet very few people, perhaps none, are free from the blinding effect of self-love or some other passion in every case. Consequently, the Law of Nature has now become the most obscure of all laws and has the greatest need of capable interpreters. Short written laws can easily be misinterpreted because one or two words have several meanings. Long ones are still more obscure because many words have several meanings. No written law, whether short or long, can be properly understood without fully understanding the purposes for which it was made. The legislator knows those purposes. Thus he can untie any knot in the law, either by finding the purposes that resolve it or by choosing whatever purposes he wishes, as Alexander cut the Gordian knot with his sword. His legislative power lets him do what no other interpreter can.

In a commonwealth, interpreting the Laws of Nature does not depend on books of moral philosophy. A writer’s views do not become law through the writer’s authority alone, however true those views may be. What I have written in this treatise about the moral virtues and their necessity for establishing and maintaining peace is plainly true. But that does not itself make it law. It is law because it forms part of the civil law in every commonwealth in the world. Although it accords with natural reason, sovereign power makes it law. Otherwise it would be a serious mistake to call the Laws of Nature unwritten laws: so many volumes have been published about them, filled with contradictions both of one another and of themselves.

An interpretation of the Law of Nature is the ruling of a judge whom the sovereign authorizes to hear and decide disputes under it. The judge applies the law to the case at hand. In judging, he considers whether a party’s claim agrees with natural reason and equity. His ruling thus interprets the Law of Nature. That interpretation is authoritative not because it is his private opinion, but because he gives it by the sovereign’s authority. It thereby becomes the sovereign’s ruling, and is law for the parties in that case at that time.

But any lower judge, and even a sovereign, can make a mistake in judging equity. If later, in a similar case, he finds that the opposite ruling agrees better with equity, he must give that opposite ruling. No one’s mistake becomes a law binding him to repeat it. For the same reason, it does not bind other judges, even if they have sworn to follow it. If the sovereign knows and approves a mistaken judgment made under his authority, it can establish a new law for cases alike in every detail when the laws concerned can be changed. But the Laws of Nature cannot be changed. Such judgments therefore bind neither the same judge nor others in future similar cases. Princes succeed one another, and judges come and go. Heaven and earth will pass away, but not one part of the Law of Nature will pass away, for it is God’s eternal law. All the rulings of earlier judges together cannot make a law contrary to natural equity. Nor can their examples justify an unreasonable ruling or relieve a present judge of the effort to work out what equity requires in his case by using his own natural reason. For example, punishing an innocent person is against the Law of Nature. A person is innocent if he clears himself in court and the judge recognizes his innocence. Suppose someone charged with a capital crime sees how powerful and malicious an enemy is and how often judges are corrupt and biased. Afraid of the outcome, he flees. He is later caught and tried legally, clearly proves he did not commit the crime, and is acquitted. Yet he is ordered to forfeit his property. This plainly punishes an innocent person. I say no place in the world can treat this as an interpretation of the Law of Nature, or make it law through earlier judges’ similar rulings. The first judge who ruled this way ruled unjustly, and injustice cannot serve as a model for later judges. A written law may prohibit innocent people from fleeing and may punish them for fleeing. But after someone has been acquitted of the crime by a court, treating his flight from feared injury as a presumption of guilt contradicts the nature of a presumption. Presumptions have no place after judgment. Yet a great lawyer presents this as the common law of England: “If a man,” he says, “who is innocent is accused of felony and flees for fear of it, then even if he clears himself of the felony in court, if it is found that he fled because of the felony, he must forfeit all his goods, movable property, debts, and dues despite his innocence. In deciding their forfeiture, the law will accept no proof against the legal presumption based on his flight.” Here an innocent man, acquitted in court, is nevertheless condemned after his acquittal to lose everything he owns on a legal presumption, despite his innocence and although no written law forbade him to flee. If his flight creates a presumption that he committed the crime, which was a capital crime, the punishment should be capital. If it does not presume he committed the crime, why should he lose his property? This, then, is no law of England. The condemnation rests not on a legal presumption but on the judges’ presumption. It is also against the law to say that no evidence can be admitted against a legal presumption. All judges, sovereign or subordinate, refuse to do justice if they refuse to hear evidence. Even if their ruling happens to be just, judges who condemn without hearing the evidence offered are unjust judges. Their presumption is simply prejudice, which no one should bring to a court, whatever earlier judgments or examples he claims to follow. Trust in precedents has distorted judgments in other cases of this kind too. This example is enough to show that a judge’s ruling, though law for the parties to the case, is not law for a judge who later holds the same office.

Likewise, when the question concerns the meaning of written laws, a person who writes a commentary on them is not their interpreter. Commentaries are usually even more open to dispute than the text. They would need further commentaries, and the process of interpretation would never end. Unless the sovereign authorizes an interpreter whose interpretation subordinate judges must follow, the only interpreters are the ordinary judges, just as with unwritten law. The parties must accept their rulings as law for their particular cases, but those rulings do not bind other judges to decide similar cases in the same way. A judge can make mistakes even in interpreting written laws. No mistake by a subordinate judge can change the law, which is the sovereign’s general ruling.

With written laws, people commonly distinguish between the letter and the meaning of the law. This distinction works if by “letter” they mean anything that can be drawn from the bare words. Almost all words are ambiguous, either in their ordinary meaning or in their use as metaphors. Arguments can draw many meanings from them, but the law has only one meaning. If by “letter” they mean the literal meaning, however, the letter and the law’s meaning or intention are the same. The literal meaning is the meaning assumed to be equitable because the legislator is always assumed to intend equity. It would be a serious insult for a judge to think otherwise of the sovereign. So if the words of a law do not fully support a reasonable ruling, the judge should supplement them with the Law of Nature. If the case is difficult, he should postpone judgment until he receives fuller authority. For example, a written law orders that someone forced out of his house must be restored to it by force. Suppose a man carelessly leaves his house empty, then returns and is forcibly kept out. There is no special law covering this case. Clearly it falls under the same law. Otherwise he has no remedy, which cannot be presumed to be the legislator’s intention. Again, suppose the law orders a judge to decide according to the evidence. Someone is falsely accused of an act the judge himself saw someone else commit. The judge must not follow the letter of the law to convict the innocent defendant. Nor can he rule against the witnesses’ evidence, because the letter of the law forbids it. Instead, he should ask the sovereign to appoint another judge and should himself testify as a witness. Thus a bad consequence of following the bare words of a written law can help a judge find the law’s intention and interpret it better. But no bad consequence can justify a ruling against the law. A judge of right and wrong is not necessarily a judge of what benefits or harms the commonwealth.