XII. Whether Kings are ob∣liged by those Civil Laws of Usucapion or Prescription.
But here it is not altogether unworthy our pains to enquire, Whether the Law of Usu∣capion or Prescription, having the stamp of the Soveraign Power, may bind him also that made it; or whether the very rights of Empires, or their necessary parts, which we have elsewhere explained, are subject to this Law of Prescription, and uninterrupted possession. Some Civilians are of opinion that they are, and those not a few, especially of such as han∣dle questions concerning Soveraign Empire according to the Civil Law of the Romans. But we, with some others, are of another opinion;* 1.1 for that a man should be bound up by Laws, it is required, that in the Law Maker there should be both a power, and a will (at least strongly presumed) so to do. But no man can properly impose a Law upon himself, as a Superior upon an Inferior; for then the person commanding and the person com∣manded, would be one and the same: And from hence it is, that he that hath power to make a Law, hath also a power to change that Law, (and consequently not only to com∣mand according to Law, but to command sometimes the Laws themselves for the general good.) And yet a King may stand obliged by his own Laws, though not directly,* 1.2 yet by reflection, namely, as he is a part of the Body Politick, and so in natural equity ought to be conformable to the whole, as Saul in the Infancy of his Reign is said to do, 1 Sam. 14.40. So in a Ship, the Captain sustains two persons, one common with the rest, being carried also along with them, the other proper, as he is Governor, both of the Ship and those that are in it. But here we look at the Law-giver, not as apart, but as one in whom the power of the whole is contracted: For in this place we treat of Soveraign Power as such: Neither is it easily to be believed, that it was the will of the Law-maker to comprehend himself under the Law he makes, unless it be where the matter and reason of the Law is universal, as in the apprising of Commodities, and the like. For there is not the same reason, that the Soveraign Power should be bounded and limited by the Law, as other things are, it being in dignity far above it; (for if we once admit it to be absolute and supreme, we must al∣so grant it some Priviledges and Prerogatives above and before others.) I never yet found any Civil Law that treated of Prescriptions, that could with any probability be understood to include the highest powers: Hence then we may conclude, that neither the time limit∣ed by the Civil Law, can suffice to acquire a Soveraign Empire, or any of its necessary parts, in case these natural Conjectures, whereof we have here treated, be wanting: Nor is such a space of time required, if within that time sufficient conjectures of Dereliction shall appear. Nor lastly, doth the Civil Law, which forbids things to be acquired,* 1.3 within such a certain time, at all appertain to the things belonging to the Supreme Power: Yet might the people in the first Creation of the Empire have exprest their will, by what means, and in what space of time, the Government by not using it should be lost, which Will so exprest, ought without doubt to have been followed: Nor could it then have been infringed by the King himself, though invested with Supreme Power, because it appertains not to the Empire it self, but to the manner of holding it, as we have elsewhere ex∣plained it.