If the ruler may make new laws

What then? Shall it not be lawful for a ruler to make new laws and abrogate the old? Seeing it belongs to the king, not only to advise that nothing be done neither against, nor to defraud the laws, but also that nothing be wanting to them, nor anything too much in them: briefly, that neither age nor lapse of time do abolish or entomb them; if there be anything to abridge, to be added or taken away from them, it is his duty to assemble the estates, and to demand their advice and resolution, without presuming to publish anything before the whole have been, first, duly examined and approved by them. After the law is once enacted and published, there is no more dispute to be made about it; all men owe obedience to it. And the ruler, to teach other men their duty (for all men are easier led by example than by precepts), must necessarily express his willingness to observe the laws, or else by what right can he require obedience in his subjects, to that which he himself condemns?

For the difference which is between kings and subjects ought not to consist in impunity, but in equity and justice. And therefore, although Augustus was esteemed to be exempt by the decree of the senate, notwithstanding, reproving of a young man who had broken the Julian law concerning adultery, he boldly replied to Augustus, that he himself had transgressed the same law which condemns adulterers. The emperor acknowledged his fault, and for grief forbore too late. So convenient a thing it is in nature, to practice by example that which we would teach by precept. The lawgiver Solon was wont to compare laws to money, for they maintain human societies, as money preserves traffic, and neither are improper, then, if the king may not (or at the least heretofore could not), lawfully alter or debase the currency without the consent of the commonwealth — much more less can he have power to make and unmake laws without which kings nor subjects, can live together in security, but must be forced to live brutishly in caves and deserts like wild beasts. Therefore the emperor of Germany, esteeming it needful to make some law for the good of the empire, first demanded the advice of the estates. If it be there approved, the rulers, barons, and deputies of the towns sign it, and then the law is satisfied, for he solemnly swears to keep the laws already made, and to introduce no new ones without a general consent.

There is a law in Poland, which has been renewed in the year 1454, and also in the year 1538, and by this it is decreed, that no new laws shall be made, but by a common consent, nor nowhere else, but in the general assembly of the estates.

For the kingdom of France, where the kings are thought to have greater authority than in other places, in ancient times all laws were only made in the assembly of the estates, or in the ambulatory parliament. But since this parliament has been sedentary, the king's edicts are not received as authentic before the parliament has approved them.

Whereas on the contrary, the decrees of this parliament, where the law is defective, have commonly the power and effect of law. In the kingdoms of England, Spain, Hungary, and others, they yet enjoy in some sort their ancient privileges.

For if the welfare of the kingdom depends on the observation of the laws, and the laws are enslaved to the pleasure of one man, is it not most certain, that there can be no permanent stability in that government? Must it not then necessarily come to pass, that if the king (as some have been) be infected with lunacy, either continually, or by intervals, that the whole state fall inevitably to ruin? But if the laws are superior to the king, as we have already proved, and that the king is tied in the same respect of obedience to the laws as the servant is to his master, who will be so senseless, who will not rather obey the law than the king or will not readily yield his best assistance against those who seek to violate or infringe them? Now seeing that the king is not lord over the laws, let us examine how far his power may be justly extended in other things.

Whether the ruler have power of life and death over his subjects

The minions of the court consider it self-evident that rulers have the same power of life and death over their subjects as ancient masters had over their slaves. With these false imaginations have so bewitched rulers, that many, although they do not much use this imaginary right, yet imagine that they may lawfully do so, and in how much they desist from the practice thereof, insomuch that they quit and relinquish their right and due.

But we affirm on the contrary, that the ruler is but as the minister and executor of the law, and may only unsheathe the sword against those whom the law has condemned; and if he do otherwise, he is no more a king, but a tyrant; no longer a judge, but a malefactor, and instead of that honorable title of conservator, he shall be justly branded with that foul term of violator of the law and equity.

We must here first of all take into our consideration the foundation on which this our disputation is built, which we have resolved into this head, that kings are ordained for the benefit and profit of the public state; this being granted, the question is soon discussed. For who will believe that men sought and desired a king, who, upon any sudden motion, might at his pleasure cut their throats; or which in anger or revenge, might, when he would, take their heads from their shoulders? Briefly, who (as the wise man says) carried death at his tongue's end, we must not think so idly.

There is no man so vain who would accept willingly that his welfare should depend on another's pleasure. No, with much difficulty will any man trust his life in the hands of a friend or a brother, much less of a stranger, be he never so worthy. Seeing that envy, hate, rage, did so far transport Athanas and Ajax, beyond the bounds of reason, that the one killed his children, the other failing to effect his desire in the same kind against his friends and companions, turned his fury and murderous intent and acted the same revenge upon himself. Now it being natural to every man to love himself, and to see the preservation of his own life, in what assurance, I ask you, would any man rest, to have a sword continually hanging over his head by a small thread, with the point towards him? Would any mirth or jollity be relished in such a continual affright? Can you possibly make choice of a more slender thread, than to expose your life and welfare into the hands and power of a man so unpredictable, who changes with every puff of wind, and who, almost a thousand times a day, shakes off the restraint of reason and discretion, and yields himself slave to his own unruly and disordered passions?

Can there be hoped or imagined any profit or advantage so great or so worthy, which might equalize or counteract this fear or this danger? Let us conclude then, that it is against delinquents only, whom the mouth of the law has condemned, that kings may draw forth the sword of their authority.


Next | Previous | Contents



© Copyright 2014 constitution.org.