Divine Right of Kings Legal Definition:

A doctrine of absolute right of a monarch premised on the belief that an individual's tenure as monarch was an act of God, and thus the king can set the law, or to ignore or change the law as may have been set by a representational parliament.

Related Terms: Rex Debet Esse Sub Lege, Quia Lex Facit Regem , Royal Prerogative

A long-abandoned tenet of the law which formed the basis of the absolute authority of kings and queens, not only but especially in England and France.

With the development and advent of representative assemblies and parliaments, the right was eventually whittled away until it was mercifully and formally rejected.

In Godden v Hales, the British Court upheld the allegation made by the new King James II that he did not need to abide by an act of Parliament. The Court upheld his authority in this regard writing:

"There is no law whatsoever but may be dispensed with by the supreme lawgiver. As the laws of God may be dispensed with by God himself, as it appears by God's command to Abraham to offer up his son Isaac....

"... the laws of England are the king's laws....

 

"(T)herefore it is an inseparable prerogative in the kings of England to dispense with penal laws in particular cases and upon particular necessary reasons; that of those reasons and those necessities, the king himself is sole judge.... (T)his is not a trust invested in, or granted to, the king by the people, but the ancient remains of the sovereign power and prerogative of the kings of England; which never yet was taken from them, nor can be."

The chief judge of the court was none other than Edward Herbert who had, two years earlier, been knighted by King James II's predecessor, Charles, after having been served as his attorney general.

James I of England (1566-1625; image) fashioned himself a philosopher king, especially when the topic might be self-serving. He pressed for an English language version of the Holy Bible, which became known as the King James Version (1611). In Trew Law of Free Monarchies, he made his case for his divine rightJames I:

"Kings are called gods by the prophetical King David because they sit upon God his throne in the earth....

"The kings thereafter in Scotland were before any estates or ranks of men within the same, before any Parliaments were holden or laws made; and by them was the land distributed (which at the first was wholly theirs), states erected and discerned, and forms of government devised and established. And it follows of necessity that the Kings were the authors and makers of the laws ....

"According to these fundamental laws already alleged, we daily see that in the Parliament (which is nothing else but the head court of the King and his vassals) the laws are but craved by his subjects, and only made by him at their rogation and with their advice. For albeit the King made daily statutes and ordinances, enjoining such pains thereto as he thinks meet, without any advice of Parliament or Estates, yet it lies in the power of no Parliament to make any kind of law or statute without his sceptre be to it for giving it the force of a law.

"And as ye see it manifest that the King is overlord of the whole land, so is he master over every person that inhabiteth the same, having power over the life and death of every one of them. For although a just prince will not take the life of any of his subjects without a clear law, yet the same laws whereby he taketh them are made by himself or his predecessors, and so the power flows always from himself; as by daily experience we see good and just princes will from time to time make new laws and statutes, adjoining the penalties to the breakers thereof, which before the law was made had been no crime to the subject to have committed. Not that I deny the old definition of a King and of a law which makes the King to be a speaking law and the law a dumb King; for certainly a King that governs not by his law can neither be countable to God for his administration nor have a happy and established reign. For albeit it be true, that I have at length proved, that the King is above the law as both the author and giver of strength thereto, yet a good King will not only delight to rule his subjects by the law, but even will conform himself in his own actions thereunto; always keeping that ground, that the health of the commonwealth be his chief law."

James I's theory on his divine right was made clear in a speech he made to the English Parliament in 1610:

"... do not meddle with the main points of government; that is my craft ... (T)o meddle with that, were to lessen me. I am now an old king; I must not be taught my office. Secondly, I would not have you meddle with such ancient rights of mine as I have received from my predecessors...."

James I's son, Charles I routinely argued with the English Parliament, espousing his father's theories. It led to a civil war and Charles I was charged with treason. The indictment stated that Charles I had only "limited power to govern" and had waged war against the Parliament. The 48-year old Charles refused to plead guilty or not guilty. His only defence was the divine right of kings. He bellowed throughout the great court assembled at Westminster:

"Let me know by what lawful authority I am seated here! I have a trust committed to me by God, by old and lawful descent, and I will not betray it to answer to a new authority.... The King is not suffered to give his reasons for the liberty and freedom of his subjects."

Four days after he spoke these words, on January 31, 1649, the divine right of kings died in the birthplace of the common law, England, when they beheaded the obstinate king.

REFERENCES:

  • Godden v Hales (1686)
  • Hibbert, C., Charles I (London: Readers Union, 1968)
  • James I, Trew Law of Free Monarchies (1598)
  • James I, Basilikon Doron (1599)
  • Smith, F., Famous Trials (London: Hutchinson & Co., 1927)

 

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