Lex Rex [Law Is King, or The Law & The Prince] (1644)
Whether or No the King Be the Sole, Supreme and Final Interpreter of the Law
This question conduces not a little to the clearing of the doubts concerning the king’s absolute power, and the supposed sole nomothetic power in the king. And I think it not unlike to the question, Whether the Pope and Romish church have a sole and peremptory power of exponing laws, and the word of God? We are to consider that there is a twofold exposition of laws; (1.) One speculative in a school way, so exquisite jurists have a power to expone laws. (2.) Practical, in so far as the sense of the law falls under our practice; and this is twofold, either private and common to all, or judicial and proper to judges; and of this last is the question.
For this public, the law has one fundamental rule, solus populi, like the king of planets, the sun, which lends star-light to all laws, and by which they are exponed: whatever interpretation swerves either from fundamental laws of policy, or from the law of nature, and the law of nations, and especially from the safety of the public, is to be rejected as a perverting of the law; and therefore, conscientia humani generis, the natural conscience of all men, to which the oppressed people may appeal unto when the king expones a law unjustly, at his own pleasure, is the lost rule on earth for exponing of laws. Nor ought laws to be made so obscure, as an ordinary wit cannot see their connection with fundamental truths of policy, and the safety of the people; and therefore I see no inconvenience, to say, that the law itself is norma et regula juduicandi, the rule and directory to square the judge, and that the judge is tho public practical interpreter of the law.
Assert. 1. The king is not the sole and final interpreter of the law.
1. Because then inferior judges should not be interpreters of the law; but inferior judges are no less essentially judges than the king, (Deut. 1:17; 2 Chron. 19:6; 1 Pet. 51:14; Rom. 13:1-2,) and so by office must interpret the law, else they cannot give sentence according to their conscience and equity. Now, exponing of the law judicially is an act of judging, and so a personal and incommunicable act; so as I can no more judge and expone the law according to another man’s conscience, than I can believe with another man’s soul, understand with another man’s understanding, or see with another man’s eye. The king’s pleasure, therefore, cannot be the rule of the inferior judge’s conscience, for he gives an immediate account to God, the Judge of all, of a just or an unjust sentence. Suppose Caesar shall expone the law to Pilate, that Christ deserves to die the death, yet Pilate is not in conscience to expone the law so. If therefore inferior judges judge for the king, they judge only by power borrowed from the king, not by the pleasure, will, or command of the king thus and thus exponing the law, therefore the king cannot be the sole interpreter of the law.
2. If the Lord say not to the king only, but also to other inferior judges, “Be wise, understand, and the cause that you know not, search out,” then the king is not the only interpreter of the law. But the Lord says not to the king only, but to other judges also, Be wise, understand, and the cause that you know not, search out; therefore the king is not the sole law-giver. The major is clear from Psal. 2:10, “Be wise now therefore, O ye kings, be instructed, ye judges of the earth.” So are commands and rebukes for unjust judgment given to others than to kings. (Ps. 82:1-5; 58:1-2; Isa. 1:17, 23, 25, 26; 3:14; Job 29:12-15; 31:21-22.)
3. The king is either the sole interpreter of law, in respect he is to follow the law as his rule, and so he is a ministerial interpreter of the law, or he is an interpreter of the law according to that super-dominion of absolute power that he has above the law. If the former be holden, then it is clear that the king is not the only interpreter, for all judges, as they are judges, have a ministerial power to expone the law by the law: but the second is the sense of royalists.
Assert. 2. Hence our second assertion is, That the king’s power of exponing the law is a mere ministerial power, and he has no dominion of any absolute royal power to expone the law as he will, and to put such a sense and meaning of the Law as he pleases.
1. Because Saul makes a law, (1 Sam 14:24,) “Cursed be the man that tastes any food till night, that the king may be avenged on his enemies,” the law, according to the letter, was bloody; but, according to the intent of the lawgiver and substance of the law, profitable, for the end was that the enemies should be pursued with all speed. But king Saul’s exponing the law after a tyrannical way, against the intent of the law, which is the diamond and pearl of all laws the safety of the innocent people, was justly resisted by the innocent people, who violently hindered innocent Jonathan to be killed. Whence it is clear, that the people and princes put on the law its true sense and meaning; for Jonathan’s tasting of a little honey, though as it was against that sinful and precipitate circumstance, a rash oath, yet it was not against the substance and true intent of the law, which was the people’s speedy pursuit of the enemy. Whence it is clear, that the people, including the princes, has a ministerial power to expone the law aright, and according to its genuine intent, and that the king, as king, has no absolute power to expone the law as he pleases.
2. The king’s absolute pleasure can no more be the genuine sense of a just law than his absolute pleasure can be a law; because the genuine sense of the law is the Law itself, as the formal essence of a thing differs not really, but in respect of reason, from the thing itself. The Pope and Romish church cannot put on the Scripture, ex plenitudine potentatis, whatever meaning they will, no more than they can, out of absolute power, make canonic scripture. Now so it is, that the king, by his absolute power, cannot make law no law. 1. Because he is king by, or according to, law, but he is not king of law. Rex est rex secundum legem, sed non est dominus et rex legis. 2. Because, although it have a good meaning, which Ulpian says, “Quod principi placet legis vigorem habet” the will of the prince is the law; yet the meaning is not that anything is a just law, because it is the prince’s will, for its rule formally; for it must be good and just before the prince can will it, and then, he finding it so, he puts the stamp of a human law on it.
3. This is the difference between God’s will and the will of the king, or any mortal creature. Things are just and good, because God wills them, especially things positively good, (though I conceive it hold in all things,) and God does not will things, because they are good and just; but the creature, be he king or any never so eminent, do will things, because they are good and just, and the king’s wiling of a thing makes it not good and just; for only God’s will not the creature’s can be the cause why things are good and just. If, therefore, it be so, it must undeniably hence follow, that the king’s will makes not a just law to have an unjust and bloody sense; and he cannot, as king, by any absolute super-dominion over the law, put a just sense on a bloody and unjust law.
4. The advancing of any man to the throne and royal dignity puts not the man above the number of rational men. No rational man can create, by any act of power never so transcendent or boundless, a sense to a law contrary to the law. Nay, give me leave to doubt if Omnipotence can make a just law to have an unjust and bloody sense, aut contra, because it involves a contradiction; the true meaning of a law being the essential form of the law. Hence judge what brutish, swinish flatterers they are who say, “That it is the true meaning of the law which the king, the only supreme and independent expositor of the law, says is the true sense of the law.” There was once an animal a fool of the first magnitude who said he could demonstrate, by invincible reasons, that the king’s dung was more nourishing food than bread of the flour of the finest wheat. For my part I could wish it were the demonstrator’s only food for seven days, and that should be the best demonstration he could make for his proof.
5. It must follow that there can be no necessity of written laws to the subjects, against Scripture and natural reason, and the law of nations, in which all accord: that laws not promulgated and published cannot oblige as law; yea, Adam, in his innocency, was not obliged to obey a law not written in his heart by nature, except God had made known the law; as is clear, Gen. 3:11, “Hast thou eaten of the tree whereof I commanded thee that thou shouldest not eat?” But if the king’s absolute will may put on the law what sense he pleases, out of his independent and irresistible supremacy, the laws promulgated and written to the subjects can declare nothing what is to be done by the subjects as just, and what is to be avoided as unjust; because the laws must signify to the subjects what is just and what is unjust, according to their genuine sense. Now, their genuine sense, according to royalists, is not only uncertain and impossible to be known, but also contradictory; for the king obliges us, without gainsaying, to believe that the just law has this unjust sense. Hence this of flattering royalists is more cruel to kings than ravens, (for these eat but dead men, while they devour living men,) When there is a controversy between the king and the estates of parliament, who shall expone the law and render its native meaning? Royalists say, Not the estates of parliament, for they are subjects, not judges, to the king, and only counselors and advisers of the king. The king, therefore, must be the only judicial and final expositor. “As for lawyers, (said Strafford,) the law is not enclosed in a lawyer’s cap.” But I remember this was one of the articles laid to the charge of Richard II, that he said, “The law was in his head and breast.”1 And, indeed, it must follow, if the king, by the plenitude of absolute power, be the only supreme uncontrollable expositor of the law, that is not law which is written in the acts of parliament, but that is the law which is in the king’s breast and head, which Josephus (lib. 19, Antiq. c. 2.) objected to Caius. And all justice and injustice should be finally and peremptorily resolved on the king’s will and absolute pleasure.
6. The king either is to expone the law by the law itself; or by his absolute power, loosed from all law, he expones it; or according to the advise of his great senate. If the first be said, he is nothing more than other judges. If the second be said, he must be omnipotent, and more. If the third be said, he is not absolute, if the senate be only advisers, and he yet the only judicial expositor. The king often professes his ignorance of the laws; and he must then both be absolute above the law, and ignorant of the law, and the sole and final judicial exponer of the law. And by this, all parliaments, and their power of making laws, and of judging, are cried down.
Obj. 1. Prov. 16:10, “A divine sentence is in the lips of the king; his mouth trangresses not in judgment;” therefore he only can expone the law.
Ans. Lavater says, (and I see no reason on the contrary,) “By a king he means all magistrates.” Aben Ezra and Isidorus read the words imperatively. The Tigurine version, “They are oracles which proceed from his lips; let not therefore his mouth transgress in judgment.” Vatabulus, “When he is in his prophecies, he lies not.” Jansenius, “Non facile errabit in judicando.” Mich. Jermine, “If he pray.” Calvin, “If he read in the book of the law, as God commands him,” Deut. 17. But why stand we on the place? “He speaks of good kings, (says Cornel. à Lapide,) otherwise Jeroboam, Ahab, and Manasseh, erred in judgment.” “And except (as Mercerus expones it) we understand him to speak of kings according to their office, not their facts and practice, we make them popes, and men who cannot give out grievous and unjust sentences on the throne,” against both the Word and experience.
Obj. 2. Sometimes all is cast upon one man’s voice; why may not the king be this one man?
Ans. The antecedent is false; the last voter in a senate is not the sole judge, else why should others give suffrages with him? This were to take away inferior judges, contrary to God’s word, Deut. 1:17; 2 Chron. 19:6-7; Rom. 13:1-3.
1. Imperator se leges in scrinio condere dicit. 1. omnium, C. de testam.