Treatise of Civil Policy, Treatise · 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 have a ſole and peremptory power of exponing Lawes, and the Word of God? We are to conſider that there is a twofold expoſition of Lawes, one ſpeculative in a Schoole way, ſo exquiſite Iuriſts have a power to exponeA twofold expoſition of Lawes. 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, and the Law of Nations, and eſpecially from theA Rule to expone Lawes. 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 judicandi, 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. L 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, or underſtand with another mans underſtanding,The Kings conſcience no rule of judging to the inferiour Iudge. 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. Suppo…e 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 exponingThe King not the authentick peremtory and Lordly interpreter of the Law. the Law, is a meere miniſteriall power, 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, but accordingArgum. 1. to the intent of the Law-giver, and ſubſtance of the Law profitable, for the end was that the enemies ſhould be perſued 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.
2. The Kings abſolute pleaſure can no more be the genuine ſenſe…rgu…. 2. The Will of the King is not the ſenſe of the Law. of a juſt 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.
1. Becauſe he is King by, or according to Law, but he is notThe King is King according to the Law, but not King of the Law. 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.
3. This is the difference between Gods Will, and the will of theArgum. 3. 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 ſuperdominion 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, that there can be no neceſſitie of written lawsArg. 5. There can be no written Law, if the King only be the authentick expoſitor of the Law. to the Subjects; againſt Scripture, and naturall reaſon, 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 eat 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 chargeb of Richard the Second, that he ſaid, The Law was in his Imperator ſo leges in ſcrinio condere dicit. l. omnium, C. de teſtam.head and breaſt. 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.
6. The King either is to expone the Law by the Law it ſelfe; or,Arg. 6. 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, is 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. a Lapide. Otherwiſe, …eroboam, 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 one 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.