Lex Rex, Question 27
QUEST. XXVII. Whether or no the King be the sole supreme and finall interpreter of the Law?
THis Question conduceth not a little to the clearing of the doubts concerning the Kings absolute power, and the supposed sole nomothetick power in the King. And I thinke it not unlike to the question, whether the Pope and Romish Church havt a sole and peremptory power of exponing Lawes, and the Word of God? We are to consider that therr is a twofold exposition of Lawes, one speculative in a Schoole way, so exquisite Iurists have a power to expone Lawes.A twofold exposition of Lawes. 2. Practicall, in so farre as the sense of the Law falleth under our Practice, and this is twofold; either private and common to all, or judiciall and proper to Iudges, and of this last is the question.
For this Publicke, the Law hath one fundamentall rule, Salus populi, like the King of Planets the Sunne, which lendeth Star-light to all Lawes, and by which they are exponed; whatever interpretation swarveth either from fundamentall Lawes of policy, or from the Law of Nature,A Rule to expone Lawes. and the Law of Nations, and especially from the safety of the publick, is to be rejected as a perverting of the Law: and therefore, Conscientia humani generis, the naturall conscience of all men, to which the oppressed people may appeale unto, when the King exponeth a Law unjustly, at his owne pleasure, is the last rule on earth, for exponing of Lawes. Nor ought Lawes to be made so obscure, as an ordinary wit cannot see their connexion with fundamentall truths of policy, and the safety of the people, and therefore I see no inconvenience, to say that, The Law it selfe is Norma & regula juduicandi, the Rule and directory to square the Iudge, and that the Iudge is the publicke practicall▪ interpreter of the Law▪
Assert. 1. The King is not the sole and finall interpreter of the Law.
The King not the sole interpreter of the Law.1. Because then inferiour Iudges should not be interpreters of the Law, but inferiour Iudges are no lesse essentially Iudges, then the King… Deut. 1.17. 2 Chron. 19.6. 1 Pet. 2.14. 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 personall and incommunicable act, so as I can no more judge and expone the Law according to another mans conscience, then I can beleeve with another mans soule,The Kings conscience no rule of judging to the inferiour Iudge. or understand with another mans understanding, see with another mans eye: The Kings pleasure therefore cannot be the rule of the inferiour Iudges conscience, for he giveth an immediate accompt to God the Iudge of all, of a just or an unjust sentence. Suppone Caesar shall expone the Law to Pilate, that Christ deserveth to dye the death, yet Pilate is not in conscience to expone the Law so. If therefore inferiour Iudges 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, ergo the King cannot be the sole interpreter of the Law.
2. If the Lord say not to the King only, but also to other inferiour Iudges, 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 saith not to the King only, but to other Iudges also, Be wise, understand, and the cause that you know not search out, ergo the King is not the sole Law-giver. The Major is cleare from Ps. 2.10. Be wise now therefore, O yee Kings, be instructed yee Iudges of the earth. So are commands and rebukes for unjust judgement given to others then to Kings, Ps. 82.1, 2, 3, 4, 5. Ps. 58.1, 2. Esay 1.17, 23 25▪ 26. Esay 3.14. see Iob. 29.12, 13, 14, 15. c. 31. v. 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 ministeriall interpreter of the Law, or he is an interpreter of the Law according to that super-dominion of absolute power, that he hath above the Law. If the former be holden, then it is cleare that the King is not the only interpreter, for all Iudges, as they are Iudges, have a ministeriall power to expone the Law by the Law: but the second is the sense of Royalists.
Hence our second Assertion is, That the Kings power of exponing the Law, is a meere ministeriall power,The King not the authentick peremtory and Lordly interpreter of the Law. and he hath no dominion of any absolute Royall Power, to expone the Law as he will, and to put such a sense and meaning of the Law as he pleaseth.
1. Because Saul maketh a Law, 1 Sam. 14.24. Cursed be the man that tasteth any food till night, that the King may be avenged on his enemies, the Law according to the letter was bloudy,Argum. 1. but according to the intent of the Law-giver, and substance of the Law profitable, for the end was that the enemies should be pursued with all speed. But King Sauls exponing the Law after a Tyrannicall way, against the intent of the Law, which is the Diamond and Pearle of all Lawes, the safety of the innocent people, was justly resisted by the people, who violently hindered innocent Jonathan to be killed. Whence it is cleare, that the people and Princes put on the Law its true sense and meaning, for Ionathans tasting of a little honey, though as it was against that sinfull and precipitate circumstance a rash oath, yet it was not against the substance and true intent of the Law, which was the peoples speedy pursuite of the enemy. Whence it is cleare, that the people including the Princes, hath a ministeriall power to expone the Law aright, and according to its genuine intent, and that the King as King hath no absolute power to expone the Law as he pleaseth.
Argum. 2.2. The Kings absolute pleasure can no more be the genuine sense of a just Law,The Will of the King is not the sense of the Law. then his absolute pleasure can be a Law, because the genuine sense of the Law is the Law it selfe, as the formall essence of a thing differeth not really, but in respect of reason from the thing it selfe. The Pope and Romish Church cannot put on the Scripture, Ex plenitudine potestatis, what ever meaning they will, no more then they can, out of absolute power, make Canonicke Scripture. Now so it is, that the King by his absolute power cannot make Law no Law.
The King is King according to the Law, but not King of the 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 & Rex legis.
2. Because although it have a good meaning, which Vlpian saith, Quod principi placet legis vigorem habet The Will of the Prince is the Law, yet the meaning is not that any thing is a just Law, because it is the Princes 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 puteth the stampe of a humane Law on it▪
Argum. 3.3. This is the difference between Gods Will, and the will of the King, or any mortall creature. Things are just and good, because God willeth them, especially things positively good (though I conceive it hold in all things) and God doth not will things, because they are good and just; But the creature, be he King, or any never so eminent, doe will things, because they are good and just, and the Kings willing of a thing, maketh it not good and just: for only Gods will, not the Creatures will, can be the cause why things are good and just. If therefore it be so, it must undeniably hence follow, that the Kings will maketh 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 Royall dignitie, putteth not the man above the number of rationall men: But no rationall man can create, by any act of power, never so transcendent or boundlesse, a sense to a Law, contrary to the Law. Nay, give me leave to doubt if Omnipotencie can make a just Law to have an unjust and bloody sense, aut contra: because it involveth a contradiction; the true meaning of a Law, being the essentiall forme of the Law. Hence judge what bruitish, 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, saith is the true sense of the Law. There was once an Animal, a Foole of the first magnitude, who said, He could demonstrate by invincible reasons, that the Kings dung was more nourishing food, then bread of the floore of the finest wheat. For my part, I could wish it were the Demonstrators only food for seven dayes; and that should be the best demonstration he could make for his proofe.
5. It must follow,Arg. 5. that there can be no necessitie of written laws to the Subjects; against Scripture, and naturall reason,There can be no written Law, if the King only be the authentick expositor of the Law. and the law of Nations, in which all accord, That Lawes not promulgated and published, cannot oblige as Lawes: Yea, Adam, in his innocencie, was not obliged to obey a Law not written in his heart by Nature, except God had made known the Law; as is cleare, Gen. 3.11. Hast thou eaten of the tree whereof I commanded thee that thou shouldest not eat? But if the Kings absolute Will may put on the Law what sense he pleaseth, out of his independent and irresistable Supremacie; The Lawes promulgated and written to the Subjects, can declare nothing, what is to be done by the Subjects, as just, and what is to be avoyded as unjust: because the Lawes must signifie to the Subjects, what is just, and unjust, according to their genuine sense. Now, their genuine sense, according to Royalists, is not only uncertaine and impossible to be known, but also contradictorious: for the King obligeth us without gainsaying, to believe that the just Law hath this unjust sense. Hence this of flattering Royalists, crueller to Kings, than Ravens, (for these ear but dead men, and they devoure living men) when there is a controversie between the King and the Estates of Parliament, who shall expone the Law, and render its native meaning? (say Royalists) not the Estates of Parliament, for they are Subjects, not Iudges to the King, and only Counsellers and advisers of the King. The King therefore must be the only judiciall and finall expositor. As for Lawyers (said Strafford) the Law is not inclosed in a Lawyers Cap. But I remember this was one of the Articles laid to the charge of Richard the Second, that he said, The Law was in his head and breast. Imperator … condere dicit. i. omnium, C. de testam.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 Kings breast and head: which Iosephus, lib. 19. Antiq. c. 2. objected to Caius. And all justice, and injustice should be finally and peremptorily resolved on the Kings will and absolute pleasure.
Arg▪ 6.6. The King either is to expone the Law by the Law it selfe; or, by his Absolute power loosed from all Law, he exponeth it; or according to the advise of his Great Senate. If the first be said, he is nothing more then other Iudges. 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 Iudiciall expositor. The King often professeth his ignorance of the Lawes; and he must then both be absolute above the Law, and ignorant of the Law, and 2. the sole and finall Iudiciall exponer of the Law: And by this, all Parliaments, and their power of making Lawes, and of judging, i… cryed down.
They object, Prov. 16.10. A Divine sentence is in the lips of the King, His mouth transgresseth not in judgement, ergo, he only can expone the Law.
Ans. 1. Lavater saith, (and I see no reason on the contrary) by a King, he meaneth all Magistrates. 2. Aben Ezra, and Isidorus read the words imperatively. The Tigurine version: They are Oracles which proceed from his lips: let not therefore his mouth transgresse in judgement. Vatabulus: When he is in his prophecies, he lyeth not. Iansenius: Non facile errabit in judicando. Mich. Iermine: If he pray. Calvine: If he read in the booke of the Law, as God commandeth him, Deut. 17. But why stand we on the place? He speaketh of good Kings, saith Cornel, à Lapide. Otherwise, Ieroboam, Achab, Manasseh, erred in judgement. And except, (as Mercerus exponeth it) We understand him to speake 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.
Object. 2. Sometimes all is cast upon ou… mans voice, why may not the King be this one man?
Answ. The Antecedent is false, the last Voter in a Senate, is not the sole Iudge, else why should others give suffrages with him. 2. This were to take away inferiour Iudges, contrary to Gods Word, Deut. 1.17. 2 Chron. 19.6, 7. Rom. 13.1, 2, 3.