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 laws, as there is in the Schools; nor yet, as Sir Edward Coke makes it, an artificial perfection of reason, gotten by long study, observation, and experience, as his was. For it is possible long study may increase, and confirm erroneous sentences: and where men build on false grounds, the more they build, the greater is the ruin: and of those that study, and observe with equal time and diligence, the reasons and resolutions are, and must remain discordant: and therefore it is not that juris prudentia, or wisdom of subordinate judges; but the reason of this our artificial man the commonwealth, and his command, that maketh law: and the commonwealth being in their representative but one person, there cannot easily arise any contradiction in the laws; and when there doth, the same reason is able, by interpretation, or alteration, to take it away. In all courts of justice, the sovereign, which is the person of the commonwealth, is he that judgeth: the subordinate judge, ought to have regard to the reason, which moved his sovereign to make such law, that his sentence may be according thereunto; which then is his sovereign’s 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 voice, writing, or some other sufficient argument of the same, we may understand, that the command of the commonwealth is law only to those, that have means to take notice of it. Over natural fools, children, or madmen, 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 authorize the actions of any sovereign, as they must do that make to themselves a commonwealth. And as those from whom nature or accident hath taken away the notice of all laws in general; 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 signs be sufficient for the knowledge of what is the law; that is to say, what is the will of the sovereign, as well in monarchies, as in other forms of government.
Unwritten laws are all of them laws 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 men’s 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 laws 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 thyself.
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 civil, but natural. For example, if the sovereign employ a public minister, without written instructions what to do; 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 sovereign, which being always understood to be equity, he is bound to it by the law of nature: or if an ambassador, he is, in all things not contained in his written instructions, to take for instruction that which reason dictates to be most conducing to his sovereign’s interest; and so of all other ministers of the sovereignty, public and private. All which instructions of natural reason may be comprehended under one name of fidelity; which is a branch of natural justice.
The law of nature excepted, it belongeth to the essence of all other laws, 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 sovereign 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 commonwealth, is to be supposed always consonant to equity and reason. And in ancient time, before letters were in common use, the laws were many times put into verse; that the rude people taking pleasure in singing, or reciting them, might the more easily retain them in memory. And for the same reason Solomon (Prov. vii. 3) adviseth a man, to bind the ten commandments upon his ten fingers. And for the law which Moses gave to the people of Israel at the renewing of the covenant (Deut. xi. 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 doors of their houses; and (Deut. xxxi. 12) to assemble the people, man, woman, and child, to hear 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 sovereign. For private men, when they have, or think they have force enough to secure their unjust designs, and convoy them safely to their ambitious ends, may publish for laws what they please, without, or against the legislative authority. There is therefore requisite, not only a declaration of the law, but also sufficient signs of the author and authority. The author, or legislator is supposed in every commonwealth to be evident, because he is the sovereign, 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 commonwealth is worn out, they do not consider, by whose power they used 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 sovereignty is placed. And it is a dictate of natural 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 sovereign, no man, but by his own fault, (whatsoever evil men suggest,) can make any doubt. |Difference between verifying & authorizing.| The difficulty consisteth in the evidence of the authority derived from him; the removing whereof, dependeth on the knowledge of the public registers, public counsels, public ministers, and public seals; by which all laws are sufficiently verified; verified, I say, not authorized: for the verification, is but the testimony and record, not the authority of the law; which consisteth in the command of the sovereign only.
The law verified by the subordinate judge.