2. The sovereign of a commonwealth, be it an assembly, or one man, is not subject to the civil laws. For having power to make, and repeal laws, he may when he pleaseth, free himself from that subjection, by repealing those laws that trouble him, and making of new; and consequently he was free before. For he is free, that can be free when he will: nor is it possible for any person to be bound to himself; because he that can bind, can release; and therefore he that is bound to himself only, is not bound.
Use, a law not by virtue of time, but of the sovereign’s consent.
3. When long use obtaineth the authority of a law, it is not the length of time that maketh the authority, but the will of the sovereign signified by his silence, for silence is sometimes an argument of consent; and it is no longer law, than the sovereign shall be silent therein. And therefore if the sovereign 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.
The law of nature, and the civil law contain each other.
4. The law of nature, and the civil law, contain 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. 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 made by custom, but by the sovereign power.
5. If the sovereign of one commonwealth, subdue a people that have lived under other written laws, and afterwards govern them by the same laws, 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.
Some foolish opinions of lawyers concerning the making of laws.
6. Seeing then all laws, written and unwritten, have their authority and force, from the will of the commonwealth; that is to say, from the will of the 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, 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.
Sir Edw. Coke upon Littleton, lib. 2, ch. 6, fol. 97, b.