The interpretation of the laws of nature in a Commonwealth dependeth not on the books of moral philosophy.The authority of writers,without the authority of the Commonwealth,maketh not their opinions law,be they never so true.That which I have written in this treatise concerning the moral virtues,and of their necessity for the procuring and maintaining peace,though it be evident truth,is not therefore presently law,but because in all Commonwealths in the world it is part of the civil law.For though it be naturally reasonable,yet it is by the sovereign power that it is law:otherwise,it were a great error to call the laws of nature unwritten law;whereof we see so many volumes published,and in them so many contradictions of one another and of themselves.
The interpretation of the law of nature is the sentence of the judge constituted by the sovereign authority to hear 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 whether the demand of the party be consonant to natural reason and equity;and the sentence he giveth is therefore the interpretation of the law of nature;which interpretation is authentic,not because it is his private sentence,but because he giveth it by authority of the sovereign,whereby it becomes the sovereign's sentence;which is law for that time to the parties pleading.
But because there is no judge subordinate,nor sovereign,but may err in a judgement equity;if afterward in another like case he find it more consonant to equity to give a contrary sentence,he is obliged to do it.No man's 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 sovereign,if he know and allow it,in such laws as are mutable,be a constitution of a new law in cases in which every little circumstance is the same;yet in laws immutable,such as are the laws of nature,they are no laws to the same or other judges in the like cases for ever after.Princes succeed one another;and one judge passeth,another cometh;nay,heaven and earth shall pass;but not one tittle of the law of nature shall pass;for it is the eternal law of God.Therefore all the sentences of precedent judges that have ever been cannot all together make a law contrary to natural 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 natural reason.For example sake,it is against the law of nature to punish the innocent;and innocent is he that acquitteth himself judicially and is acknowledged for innocent by the judge.Put the case now that a man is accused of a capital crime,and seeing the power and malice of some enemy,and the frequent corruption and partiality of judges,runneth away for fear of the event,and afterwards is taken and brought to a legal trial,and maketh it sufficiently appear he was not guilty of the crime,and being thereof acquitted is nevertheless 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 fear 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 fear flyeth for the same;albeit he judicially acquitteth himself 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 proof against the presumption in law,grounded upon his flight."Here you see an innocent man,judicially acquitted,notwithstanding his innocency (when no written law forbade him to fly)after his acquittal,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 capital,the sentence ought to have been capital: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 proof shall be admitted against a presumption of law.For all judges,sovereign and subordinate,if they refuse to hear proof,refuse to do justice:for though the sentence be just,yet the judges that condemn,without hearing the proofs 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 men's judgements have been perverted by trusting to precedents:but this is enough to show that though the sentence of the judge be a law to the party pleading,yet it is no law any judge that shall succeed him in that office.
In like manner,when question is of the meaning of written laws,he is not the interpreter of them that writeth a commentary upon them.
