26.

shall be silent therein. And therefore if the sove- PART II. reign shall have a question of right grounded, not upon his present will, but upon the laws formerly made; the length of time shall bring no prejudice to his right; but the question shall be judged by equity. For many unjust actions, and unjust sentences, go uncontrolled a longer time than any man can remember. And our lawyers account no customs law, but such as are reasonable, and that evil customs are to be abolished. But the judgment of what is reasonable, and of what is to be abolished, belongeth to him that maketh the law, which is the sovereign assembly, or monarch.

4. The law of nature, and the civil law, contain The law of na each other, and are of equal extent.

For the laws

of nature, which consist in equity, justice, gratitude, and other moral virtues on these depending, in the condition of mere nature, as I have said before in the end of the fifteenth chapter, are not properly laws, but qualities that dispose men to peace and obedience. When a commonwealth is once settled, then are they actually laws, and not before; as being then the commands of the commonwealth; and therefore also civil laws: for it is the sovereign power that obliges men to obey them. For in the differences of private men, to declare, what is equity, what is justice, and what is moral virtue, and to make them binding, there is need of the ordinances of sovereign power, and punishments to be ordained for such as shall break them; which ordinances are therefore part of the civil law. The law of nature therefore is a part of the civil law in all commonwealths of the world. Reciprocally also, the civil law is a part of the dictates of nature.

ture, and the civil law coutain each other.

26.

PART II. For justice, that is to say, performance of covenant, and giving to every man his own, is a dictate of the law of nature. But every subject in a commonwealth, hath convenanted to obey the civil law; either one with another, as when they assemble to make a common representative, or with the representative itself one by one, when subdued by the sword they promise obedience, that they may receive life; and therefore obedience to the civil law is part also of the law of nature. Civil, and natural law are not different kinds, but different parts of law; whereof one part being written, is called civil, the other unwritten, natural. But the right of nature, that is, the natural liberty of man, may by the civil law be abridged, and restrained: nay, the end of making laws, is no other, but such restraint; without the which there cannot possibly be any peace. And law was brought into the world for nothing else, but to limit the natural liberty of particular men, in such manner, as they might not hurt, but assist one another, and join together against a common enemy.

Provincial

laws are not

5. If the sovereign of one commonwealth, subdue a people that have lived under other written tom, but by the laws, and afterwards govern them by the same laws,

made by cus

sovereign

power.

by which they were governed before; yet those laws are the civil laws of the victor, and not of the vanquished commonwealth. For the legislator is he, not by whose authority the laws were first made, but by whose authority they now continue to be laws. And therefore where there be divers provinces, within the dominion of a commonwealth, and in those provinces diversity of laws, which commonly are called the customs of each several

province, we are not to understand that such customs have their force, only from length of time; but that they were anciently laws written, or otherwise made known, for the constitutions, and statutes of their sovereigns; and are now laws, not by virtue of the prescription of time, but by the constitutions of their present sovereigns. But if an unwritten law, in all the provinces of a dominion, shall be generally observed, and no iniquity appear in the use thereof; that law can be no other but a law of nature, equally obliging all mankind.

PART II.

26.

opinions of

cerning the

laws.

6. Seeing then all laws, written and unwritten, Some foolish have their authority and force, from the will of the lawyers concommonwealth; that is to say, from the will of the making of representative; which in a monarchy is the monarch, and in other commonwealths the sovereign assembly; a man may wonder from whence proceed such opinions, as are found in the books of lawyers of eminence in several commonwealths, directly, or by consequence making the legislative power depend on private men, or subordinate judges. As for example, that the common law, hath no controller but the parliament; which is true only where a parliament has the sovereign power, and cannot be assembled, nor dissolved, but by their own discretion. For if there be a right in any else to dissolve them, there is a right also to control them, and consequently to control their controllings. And if there be no such right, then the controller of laws is not parliamentum, but rex in parliamento. And where a parliament is sovereign, if it should assemble never so many, or so wise men, from the countries subject to them, for whatsoever cause; yet there is no man will believe,

PART II.

26.

fol. 97, b.

that such an assembly hath thereby acquired to themselves a legislative power. Item, that the two arms of a commonwealth, are force and justice; the first whereof is in the king; the other deposited in the hands of the parliament. As if a commonwealth could consist, where the force were in any hand, which justice had not the authority to command and govern.

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 Sir Edw. Coke Schools; nor yet, as Sir Edward Coke makes it, an upon Littleton, 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 per

26.

son of the commonwealth, is he that judgeth: the PART II. 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.

not also made

law.

8. From this, that the law is a command, and a Law male, if command consisteth in declaration, or manifesta- known, is no tion 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.

And first, if it be a law that obliges all the subjects without exception, and is not written, nor

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