In written Lawes, 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, ’tis well distinguished. For the
significations of almost all words, are either in themselves, or in the
metaphoricall use of them, ambiguous; and may be drawn in argument, to
make many senses; but there is onely one sense of the Law. But if by the
Letter, be meant the Literall sense, then the Letter, and the Sentence
or intention of the Law, is all one. For the literall sense is that,
which the Legislator is alwayes supposed to be Equity: For it were a
great contumely for a Judge to think otherwise of the Soveraigne.
He ought therefore, if the Word of the Law doe not fully authorise a
reasonable Sentence, to supply it with the Law of Nature; or if the
case be difficult, to respit 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 speciall 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 falsly of a fact, which the Judge saw
himself 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 Soveraign that another be made Judge, and himselfe
Witnesse. 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 Common-wealth.
The Abilities Required In A Judge