Lex Rex [Law Is King, or The Law & The Prince] (1644)

Samuel Rutherford

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QUESTION 2
Whether or Not Government Be Warranted by the Law of Nature

As domestic society is by nature’s instance, so is civil society natural in radice, in the root, and voluntary in modo, in the manner of coalescing. Politic power of government agrees not to man, singly as one man, except in that root of reasonable nature; but supposing that men be combined in societies or that one family cannot contain a society, it is natural that they join in a civil society, though the manner of union in a politic body, as Bodine says,1 be voluntary, Gen. 10:10; 15:7; and Suarez says,2 That a power of making laws is given by God as a property flowing from nature, Qui dat formam, dat consequentia ad formam; not by any special action or grant, different from creation, nor will he have it to result from nature, while men be united into one politic body: which union being made, that power follows without any new action of the will.

We are to distinguish between a power of government, and a power of government by magistracy. That we defend ourselves from violence by violence is a consequent of unbroken and sinless nature; but that we defend ourselves by devolving our power over in the hands of one or more rulers seems rather positively moral than natural, except that it is natural for the child to expect help against violence from his father: for which cause I judge that learned senator Ferdinandus Vasquius said well,3 That princedom, empire, kingdom, or jurisdiction has its rise from a positive and secondary law of nations, and not from the law of pure nature.

    1st, The law says4 there is no law of nature agreeing to all living creatures for superiority; for by no reason in nature has a boar dominion over a boar, a lion over a lion, a dragon over a dragon, a bull over a bull: and if all men be born equally free, as I hope to prove, there is no reason in nature why one man should be king and lord over another; therefore while I be otherwise taught by the aforesaid Prelate Maxwell, I conceive all jurisdiction of man over man to be as it were artificial and positive, and that it infers some servitude whereof nature from the womb has freed us, if you except that subjection of children to parents, and the wife to the husband; and the law says5, De jure gentium secundarius est omnis principatus.
    2nd, This also the Scripture proves, while as the exalting of Saul or David above their brethren to be kings and captains of the Lord’s people, is ascribed not to nature (for king and beggar spring of one clay), but to an act of divine bounty and grace above nature, 1 Sam. 13:13; Ps. 78:70, 71.

1. There is no cause why royalists should deny government to be natural, but to be altogether from God, and that the kingly power is immediately and only from God, because it is not natural to us to be subject to government, but against nature for us to resign our liberty to a king, or any ruler or rulers; for this is much for us, and proves not but government is natural; it concludes that a power of government tali modo, by magistracy, is not natural; but this is but a sophism, a kata\ ti ad illud quod est dictum a0plw~j, this special of government, by resignation of our liberty, is not natural, therefore, power of government is not natural; it follows not, a negatione specici non sequitur negatio generis, non est homo, ergo non est animal. And by the same reason I may, by an antecedent will, agree to a magistrate and a law, that I may be ruled in a politic society, and by a consequent will only, yea, and conditionally only, agree to the penalty and punishment of the law; and it is most true no man, by the instinct of nature, gives consent to penal laws as penal, for nature does not teach a man, nor incline his spirit to yield that his life shall be taken away by the sword, and his blood shed, except on this remote ground: a man has a disposition that a vein be cut by the physician, or a member of his body cut off, rather than the whole body and life perish by some contagious disease; but here reason in cold blood, not a natural disposition, is the nearest prevalent cause and disposer of the business.

When, therefore, a community, by the instinct and guidance of nature, incline to government, and to defend themselves from violence, they do not, by that instinct, formally agree to government by magistrates; and when a natural conscience gives a deliberate consent to good laws, as to this, “Who so sheds man’s blood, by man shall his blood be shed,” Gen. 9:6, he does tacitly consent that his own blood shall be shed; but this he consents unto consequently, tacitly, and conditionally, — if he shall do violence to the life of his brother: yet so as this consent proceeds not from a disposition every way purely natural. I grant reason may be necessitated to assent to the conclusion, being, as it were, forced by the prevalent power of the evidence of an insuperable and invincible light in the premises, yet, from natural affections, there results an act of self-love for self-preservation. So David shall condemn another rich man, who has many lambs, and robs his poor brother of his one lamb, and yet not condemn himself, though he be most deep in that fault, 1 Sam. 12:5, 6; yet all this does not hinder, but government, even by rulers, has its ground in a secondary law of nature, which lawyers call secundario jus naturale, or jus gentium secundarium, a secondary law of nature, which is granted by Plato, and denied by none of sound judgment in a sound sense, and that is this, Licet vim virepellere, It is lawful to repel violence by violence; and this is a special act of the magistrate.

2. But there is no reason why we may not defend by good reasons that political societies, rulers, cities, and incorporations, have their rise, and spring from the secondary law of nature,

    1st, Because by nature’s law family-government has its warrant: and Adam, though there had never been any positive law, had a power of governing his own family, and punishing malefactors; but as Tannerus says well,6 and as I shall prove, God willing, this was not properly a royal or monarchical power; and I judge by the reasoning of Sotus,7 Molina,8 and Victoria.9 By what reason a family has a power of government, and of punishing malefactors, that same power must be in a society of men, supposing that society were not made up of families, but of single persons; for the power of punishing ill-doers does not reside in one single man of a family, or in them all, as they are single private persons, but as they are in a family. But this argument holds not but by proportion; for paternal government, or a fatherly power of parents over their families, and a politic power of a magistrate over many families, are powers different in nature, — the one being warranted by nature’s law even in its species, the other being, in its specie and kind, warranted by a positive law, and, in the general only, warranted by a law of nature.
    2nd, If we once lay the supposition, that God has immediately by the law of nature appointed there should be a government, and mediately defined by the dictate of natural light in a community, that there shall be one or many rulers to govern a community, then the Scripture’s arguments may well be drawn out of the school of nature: as
      (1.) The powers that be, are of God (Rom. 13), therefore nature’s light teaches that we should be subject to these powers.
      (2.) It is against nature’s light to resist the ordinance of God.
      (3.) Not to fear him to whom God has committed the sword for the terror of evil-doers.
      (4.) Not to honor the public rewarder of well-doing.
      (5.) Not to pay tribute to him for his work.

Therefore I see not but Govarruvias,10 Soto,11 and Suarez,12 have rightly said, that power of government is immediately from God, and this or that definite power is mediately from God, proceeding from God by the mediation of the consent of a community, which resigns their power to one or more rulers; and to me, Barclaius says the same,13 Quamvis populus potentice largitor videatur, etc.


NOTES

     1.    Bodin, de rep. lib. 1, c. 6.
     2.    Suarez, tom. 1, de legib. lib. 3, c. 3.
     3.    Vasquez illust. quaest. lib. 1, c. 41, num. 28, 29.
     4.    Ib. lib. 2, in princ. F. de inst. et jur. et in princ. Inst. Cod. tit. c. jus . nat. 1. disp.
     5.    Dominium est jus quoddam. lib. fin. ad med. C. de long. temp. prest. 1, qui usum fert.
     6.    Ad Tannerus, m. 12. tom. 2, disp. 5. de peccatis, q. 5. dub. 1. num. 22.
     7.    Sotis, 4. de justit. q. 4, art. 1.
     8.    Lod. Molina. tom. 1 de just. disp. 22.
     9.    Victoria in relect. de potest civil. q. 4, irt. 1.
   10.    Govarruvias, tr. 2. pract. quest. 1. n. 2, 3, 4.
   11.    Soto, loc. ett.
   12.    Suarez de Reg. lib. 3, c. 4, n. 1, 2.
   13.    Barclaius con. Monarchoma, l. 3, c. 2.

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