Whether or no the king be the sole, supreme and final
interpreter of the law.
This question conduceth not a little to the clearing of the doubts
concerning the king's absolute power, and the supposed sole no-
mothetic 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
falleth 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
For this public, the law hath one fundamental rule, solus populi,
like the king of planets, the sun, which lendeth star-light to all laws, and by
which they are exponed: whatever interpretation swerveth 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 exponeth 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 connexion 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. i. 17;
2 Chron. xix. 6; 1 Pet. li. 14; Rom. xiii. 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 giveth an immediate account to God, the Judge of all, of a
just or an unjust sentence. Suppose Cæsar shall expone the law to Pilate,
that Christ deserveth 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 saith 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. ii. 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. lxxxii. 1-5; lviii. 1, 2; Isa. i.
17, 23, 25, 26; iii. 14; Job xxix. 12-15; xxxi. 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 hath 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 hath 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 pleaseth.
1. Because Saul maketh a law, (1 Sam xiv. 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 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, hath
a ministerial 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
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 differeth 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 saith, "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 putteth the stamp of a human law
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 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, do will things, because they are
good and just, and the king's wiling of a thing maketh 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 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 royal dignity putteth 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 involveth 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, saith 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. iii. 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
pleaseth, 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
obligeth us, without gainsaying, to believe that the just law hath 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
counsellors 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." 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
6. The king either is to expone the law by the law itself; 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 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 professeth 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. xvi. 10, "A divine sentence is in the lips
of the king; his mouth trangresseth not in judgment;" therefore he only can
expone the law.
Ans. — Lavater saith, (and I see no reason on the contrary,)
"By a king he meaneth 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 lieth not." Jansenius, — "Non
facile errabit in judicando." Mich. Jermine, — "If he pray." Calvin,
— "If he read in the book of the law, as God commandeth him," Deut. xvii.
But why stand we on the place? "He speaketh of good kings, (saith Cornel.
à Lapide,) otherwise Jeroboam, Ahab, and Manasseh, erred in judgment."
"And except (as Mercerus exponeth 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. i. 17; 2
Chron. xix. 6, 7; Rom. xiii. 1-3.
 Imperator se leges in scrinio [?]
condere dicit. 1. omnium, C. de testam.
Next | Previous | Contents | Text