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

Samuel Rutherford

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Whether the Prelate proves by Force of Reason That the People Cannot Be Capable of Any Power of Government

P. Prelate. — God and nature gives no power in vain, and which may not be reduced into action; but an active power, or a power of actual governing, was never acted by the community; therefore this power cannot be seated in the community as in the prime and proper subject, and it cannot be in every individual person of a community, because government intrinsically and essentially includes a special distinction of governors, and some to be governed; and, to speak properly, there can no other power be conceived in the community, naturally and properly, but only potestas passiva regiminis, a capacity or susceptibility to be governed, by one or by more, just as the first matter desires a form. This obliges all, by the dictate of nature’s law, to submit to actual government; and as it is in every individual person, it is not merely and properly voluntary, because, howsoever nature dictates that government is necessary for the safety of the society, yet every singular person, by corruption and self-love, has a natural aversion and repugnance to submit to any: every man would be a king himself. This universal desire, appetitus universalis aut naturalis, or universal propension to government, is like the act of the understanding assenting to the first principles of truth, and to the will’s general propension to happiness in general, which propension is not a free act, except our new statists, as they have changed their faith, so they overturn true reason. It will puzzle them infinitely to make anything, in its kind passive, really active and collative of positive acts and effects. All know no man can give what he has not. An old philosopher would laugh at him who would say, that a matter perfected and actuated by union with a form, could at pleasure shake off its form, and marry itself to another. They may as well say, every wife has power to resume her freedom and marry another, as that any such power active is in the community, or any power to cast off monarchy.

Ans. — 1. The P. Prelate might have thanked Spalato for this argument, but he does not so much as cite him, for fear his theft be apprehended; but Spalato has it set down with stronger nerves than the Prelate’s head was able to copy out of him. But Jac. de Almain,1 and Navarrus,2 with the Parisian doctors, said in the Council of Paris, “that politic power is immediately from God, but first from the community;” but so that the community apply their power to this or that government — not of liberty, but by natural necessity — but Spalato and the plagiary Prelate do both look beside the book.3 The question is not now concerning the vis rectiva, the power of governing in the people, but concerning the power of government; for these two differ much. The former is a power of ruling and monarchical commanding of themselves. This power is not formally in the people, but only virtually; and no reason can say that a virtual power is idle because it cannot be actuated by that same subject that it is in; for then it should not be a virtual, but a formal power. Do not philosophers say such an herb virtually makes hot? and can the sottish Prelate say this virtual power is idle, and in vain given of God, because it does not formally heat your hand when you touch it.

2. The P. Prelate, who is excommunicated for Popery, Socinianism, Arminianism, and is now turned apostate to Christ and his church, must have changed his faith, not we, and be unreasonably ignorant, to press that axiom, “That the power is idle that cannot be reduced to acts;” for a generative power is given to living and sensitive creatures, — this power is not idle though it be not reduced in act by all and every individual sensitive creature. A power of seeing is given to all who naturally do, or ought to see, yet it is not an idle power because diverse are blind, seeing it is put forth in action in diverse of the kind; so this power in the community is not idle because it is not put forth in acts in the people in which it is virtually, but is put forth in action in some of them whom they choose to be their governors; nor is it reasonable to say that it should be put forth in action by all the people, as if all should be kings and governors. But the question is not of the power of governing in the people, but of the power of government, that is, of the power of making governors and kings; and the community does put forth in act this power, as a free, voluntary, and active power; for

    (1.) a community transplanted to India, or any place of the world not before inhabited, have a perfect liberty to choose either a monarchy, or a democracy, or an aristocracy; for though nature incline them to government in general, yet are they not naturally determinated to any one of those three more than another.
    (2.) Israel did of their own free will choose the change of government, and would have a king as the nations had; therefore they had free will, and so an active power so to do, and not a passive inclination only to be governed, such as Spalato says agrees to the first matter.
    (3.) Royalists teach that a people under democracy or aristocracy have liberty to choose a king; and the Romans did this, therefore they had an active power to do it, — therefore the Prelate’s simile crooks: the matter at its pleasure cannot shake off its form, nor the wife cast off her husband being once married; but Barclaius, Grotius, Arnisaeus, Blackwood, and all the royalists, teach that the people under any of these two forms of democracy or aristocracy may resume their power, and cast off these forms and choose a monarch; and if monarchy be the best government, as royalists say, they may choose the best. And is this but a passive capacity to be governed?
    (4.) Of ten men fit for a kingdom they may design one, and put the crown on his head, and refuse the other nine, as Israel crowned Solomon and refused Adonijah. Is this not a voluntary action, proceeding from a free, active, elective power? It will puzzle the pretended Prelate to deny this, — that which the community does freely, they do not from such a passive capacity as is in the first matter in regard of the form.

3. It is true that people, through corruption of nature, are averse to submit to governors “for conscience sake, as unto the Lord,” because the natural man, remaining in the state of nature, can do nothing that is truly good, but it is false that men have no active moral power to submit to superiors, but only a passive capacity to be governed. He quite contradicts himself; for he said before, (c. 4, p. 49,) that there is an “innate fear and reverence in the hearts of all men naturally, even in heathens, toward their sovereign;” yea, as we have a natural moral active power to love our parents and superiors, (though it be not evangelically, or legally in God’s court, good) and so to obey their commandments, only we are averse to penal laws of superiors. But this proves no way that we have only by nature a passive capacity to government; for heathens have, by instinct of nature, both made laws morally good, submitted to them, and set kings and judges over them, which clearly proves that men have an active power of government by nature. Yea, what difference makes the Prelate between men and beasts? for beasts have a capacity to be governed, even lions and tigers; but here is the matter, if men have any natural power of government, the P. Prelate would have it, with his brethren the Jesuits and Arminians, to be not natural, but done by the help of universal grace; for so do they confound nature and grace. But it is certain our power to submit to rulers and kings, as to rectors, and guides, and fathers, is natural; to submit to tyrants in doing ills of sin is natural, but in suffering ills of punishment is not natural. “No man can give that which he has not,” is true, but that people have no power to make their governors is that which is in question, and denied by us. This argument does prove that people has no power to appoint aristocratical rulers more than kings, and so the aristocratical and democratical rulers are all inviolable and sacred as the king. By this the people may not resume their freedom if they turn tyrants and oppressors. This the Prelate shall deny, for he avers, (p. 96,) out of Augustine, that the people may, without sin, change a corrupt democracy into a monarchy.

P. Prelate (pp. 95, 96). — If sovereignty be originally inherent in the people, then democracy, or government by the people, were the best government, because it comes nearest to the fountain and stream of the first and radical power in the people, yea, and all other forms of government were unlawful; and if sovereignty be natively inherent in the multitude it must be proper to every individual of the community, which is against that false maxim of theirs, Quisque nascitur liber. Every one by nature is born a free man, and the posterity of those who first contracted with their elected king are not bound to that covenant, but, upon their native right and liberty, may appoint another king without breach of covenant. The posterity of Joshua, and the elders in their time, who contracted with the Gibeonites to incorporate them, though in a serving condition, might have made their fathers’ government nothing.

Ans. — 1. The P. Prelate might thank Spalato for this argument also,4 for it is stolen; but he never once named him, lest his theft should be apprehended. So are his other arguments stolen from Spalato; but the Prelate weakens them, and it is seen stolen goods are not blessed. Spalato says, then, by the law of nature every commonwealth should be governed by the people, and by the law of nature the people should be under the worst government; but this consequence is nothing; for a community of many families is formally and of themselves under no government, but may choose any of the three; for popular government is not that wherein all the people are rulers, for this is confusion and not government, because all are rulers, and none are governed and ruled. But in popular government many are chosen out of the people to rule; and that this is the worst government is said gratis, without warrant; and if monarchy be the best of itself, yet, when men are in the state of sin, in some other respects it has many inconveniences.

2. I see not how democracy is best because nearest to the multitude’s power of making a king; for if all the three depend upon the free will of the people, all are alike afar off, and alike near hand, to the people’s free choice, according as they see most conducive to the safety and protection of the commonwealth, seeing the forms of government are not more natural than politic incorporations of cities, yea, than of shires; but from a positive institution of God, who erects this rather than that, not immediately now, but mediately, by the free will of men; no one comes formally, and ex natur a rei, nearer to the fountain than another, except that materially democracy may come nearer to the people’s power than monarchy, but the excellency of it above monarchy is not hence concluded; for by this reason the number of four should be more excellent than the number of five, of ten, of a hundred, of a thousand, or of millions, because four comes near to the number of three, which Aristotle calls the first perfect number, cui additur to\ pa~n of which yet formally all do alike share in the nature and essence of number.

2. It is denied that it follows from this antecedent, that the people have power to choose their own governors; therefore all governments except democracy, or government by the people, must be sinful and unlawful.

    (1.) Because government by kings is of divine institution, and of other judges also, as is evident from God’s word, Rom. 13:1-3; Deut. 17:14; Prov. 8:15, 16; 1 Pet. 2:13, 14; Psal. 2:10, 11, etc.
    (2.) Power of choosing any form of government is in the people; therefore there is no government lawful but popular government. It follows no ways; but presupposes that power to choose any form of government must be formally actual government; which is most false, yea, they be contrary, as the prevalency or power and the act are contrary; so these two are contrary, or opposite. Neither is sovereignty, nor any government, formally inherent in either the community by nature, nor in any one particular man by nature; and that every man is born free, so as no man, rather than his brother, is born a king and a ruler, I hope, God willing, to make good, so as the Prelate shall never answer on the contrary.

3. It follows not that the posterity living, when their fathers made a covenant with their first elected king, may without any breach of covenant on the king’s part, make void and null their fathers’ election of a king, and choose another king, because the lawful covenant of the fathers, in point of government, if it be not broken, ties the children, but it cannot deprive them of their lawful liberty naturally inherent in them to choose the fittest man to be king; but of this hereafter more fully.

4. Spalato adds,5 (the Prelate is not a faithful thief,) ” If the community by the law of nature have power of all forms of government, and so should be, by nature, under popular government, and yet should refuse a monarchy and an aristocracy,” yet, Augustine adds,6 “If the people should prefer their own private gain to the public good, and sell the commonwealth, then some good man might take their liberty from them, and, against their will, erect a monarchy or an aristocracy.” But the Prelate (p. 97) and Augustine supposes the people to be under popular government. This is not our case; for Spalato and the Prelate presupposes by our grounds that the people by nature must be under popular government. Augustine dreams no such thing, and we deny that by nature they are under any form of government. Augustine, in a case most considerable thinks one good and potent man may take the corrupt people’s power of giving honors, and making rulers from them, and give it to some good men, few or many, or to one; then Augustine lays down as a ground that which Spalato and the Prelate denies, — that the people has power to appoint their own rulers; otherwise, how could one man take that power from them?

The Prelate’s fifth argument is but a branch of the fourth argument, and is answered already.

P. Prelate (chap. 11). — He would prove that kings of the people’s making are not blessed of God. The first creature of the people’s making was Abimelech (Judg. 9:22), who reigned only three years, well near AntiChrist’s time of endurance. He came to it by blood, and an evil spirit rose between him and the men of Shechem, and he made a miserable end. The next was Jeroboam, who had this motto, He made Israel to sin. The people made him king, and he made the same pretense of a glorious reformation that our reformers now make: new calves, new altars, new feasts are erected; they banish the Levites and take in the scum and dross of the vulgar, etc. Every action of Christ is our instruction. Christ was truly born a king, notwithstanding, when the people would make him a king, he disclaimed it — he would not be in arbiter between two brethren differing.

Ans. — I am not to follow the Prelate’s order every way, though, God willing I shall reach him in the forthcoming chapters. Nor purpose I to answer his treasonable railing against his own nation, and the judges of the land, whom God has set over this seditious excommunicated apostate. He lays to us frequently the Jesuit’s tenets, when as he is known himself to be a papist. In this argument he says, Abimelech did reign only three years, well near AntiChrist’s reign. Is not this the basis and the mother principle of popery, That the Pope is not the AntiChrist, for the Pope haul continued many ages? He is not an individual man, but a race of men; but the AntiChrist, says Belarmine, Stapleton, Becanus, and the nation of Jesuits and poplings, shall be one individual man — a born Jew, and shall reign only three years and a half. But,

1. The argument from success proves nothing, except the Prelate prove their bad success to be from this, because they were chosen of the people. When as Saul chosen of God, and most of the kings of Israel and Judah, who, undeniably, had God’s calling to the crown, were not blessed of God; and their government was a ruin to both people and religion, as the people were removed to all the Kingdoms of the earth, for the sins of Manasseh, Jer. 15:4. Was therefore Manasseh not lawfully called to the crown?

2. For his instance of kings unlawfully called to the throne, he brings us whole two, and tells us that he doubts, as many learned men do, whether Jeroboam was a king by permission only, or by a commission from God.

3. Abimelech was cursed, because he wanted God’s calling to the throne; for then Israel had no king, but judges, extraordinarily raised up by God; and God did not raise him at all, only he came to the throne by blood, and carnal reasons moving the men of Shechem to advance him. The argument presupposes that the whole lawful calling of a king is the voices of the people. This we never taught, though the Prelate make conquest a just title to a crown, and it is but a title of blood and rapine.

4. Abimelech was not the first king, but only a judge. All our divines, with the word of God, makes Saul the first king.

5. For Jeroboam had God’s word and promise to be king, 1 Kings 11:34-38. But, in my weak judgment, he waited not God’s time and way of coming to the crown; but that his coming to the throne was unlawful, because he came by the people’s election, is in question.

6. That the people’s reformation, and their making a new king, was like the kingdom of Scotland’s reformation, and the parliament of England’s way now, is a traitorous calumny.

For, 1. It condemns the king, who has, in parliament, declared all their proceedings to be legal. Rehoboam never declared Jeroboam’s coronation to be lawful, but, contrary to God’s word, made war against Israel.

2. It is false that Israel pretended religion in that change. The cause was the rough answer given to the supplication of the estates, complaining of the oppression they were under in Solomon’s reign.

3. Religion is still subjected to policy by prelates and cavaliers, not by us in Scotland, who sought nothing but reformation of religion, and of laws so far as they serve religion, as our supplications, declarations, and the event proves.

4. We have no new calves, new altars, new feasts, but profess, and really do hazard, life and estate, to put away the Prelate’s calves, images, tree-worship, altar-worship, saints, feast-days, idolatry, masses; and nothing is said here but Jesuits, and Canaanites, and Baalites, might say, (though falsely) against the reformation of Josiah. Truth and purity of worship this year is new in relation to idolatry last year, but it is simpliciter older.

5. We have not put away the Lord’s priests and Levites, and taken in the scum of the vulgar, but have put away Baal’s priests, such as excommunicated Prelate Maxwell and other apostates, and resumed the faithful servants of God, who were deprived and banished for standing to the Protestant faith, sworn to by the prelates themselves.

6. Every action of Christ, such as his walking on the sea, is not our instruction in that sense, that Christ’s refusing a kingdom is directly our instruction. And did Christ refuse to be a king, because the people would have made him a king? That is, non causa pro causa, he refused it, because his kingdom was not in this world, and he came to suffer for men, not to reign over man.

7. The Prelate, and others who wore lords of session, and would be judges of men’s inheritances, and would usurp the sword by being lords of council and parliament, have refused to be instructed by every action of Christ, who would not judge between brother and brother.

P. Prelate. — Jephthah came to be judge by covenant between him and the Gileadites. Here you have an interposed act of man, yet the Lord himself, in authorizing him as judge, vindicates it no less to himself, than when extraordinarily ha authorized Gideon and Samuel, 1 Sam. 12:11; therefore, whatsoever act of man intervenes, it contributes nothing to royal authority — it cannot weaken or repeal it.

Ans. — It was as extraordinary that Jephthah, a bastard and the son of an harlot, should be judge, as that Gideon should be judge. God vindicates to himself, that he gives his people favor in the eyes of their enemies. But does it follow that the enemies are not agents, and to be commended for their humanity in favoring the people of God? So Psal. 65:9, 10, God makes corn to grow, therefore clouds, and earth, and sun, and summer, and husbandry, contributes nothing to the growing of corn. But this is but that which he said before. We grant that this is an eminent and singular act of God’s special providence, that he moves and bows the wills of a great multitude to promote such a man, who, by nature, comes no more out of the womb a crowned king, than the poorest shepherd in the land; and it is an act of grace to endue him with heroic and royal parts for the government. But what is alt this? does it exclude the people’s consent? In no ways. So the works of supernatural grace, as to love Christ above all things, to believe in Christ in a singular manner, are ascribed to the rich grace of God. But can the Prelate say mat the understanding and will, in these acts, are merely passive, and contributes no more than the people contributes to royal authority in the king? and that is just nothing by the Prelates way. And we utterly deny, that as water in baptism has no action at all in the working of remission of sins, so the people has no influence in making a king; for the people are worthier and more excellent than the king, and they have an active power of ruling and directing themselves toward the intrinsical end of human policy, which is the external safety and peace of a society, in so far as there are moral principles of the second table, for this effect, written in their heart; and, therefore, that royal authority which, by God’s special providence, is united in one king, and, as it were, over-gilded and lusterd with princely grace and royal endowments, is diffused in the people, for the people has an after-approbative consent in making a king, as royalists confess water has no such action in producing grace.


     1.    M. Anto. de domini. Arch. Spalatens.. lib. 6, c. 2, n. 5, 6. Plebs potius habet a natura, non tam vim active rectivam aut gubernativam, quam inclinationem passive regibilem (ut ita loquar) et gubernabilem, qua volens et libens sese submittit rectoribus, etc.
     2.    Almain de potest et I. a. 1. q. 1, c. 1, 6, et q. 2, 3, 5.
     3.    Nem. don jud. not. 3, n. 85.
     4.    Spalatensis, p. 648.
     5.    Spalato, 16
     6.    August, de lib. arb., lib. 1, c. 6. Si depravatus populus rem privatum Reipub. preferat. atque habeat venale suffragium cor ruptusque ab iis qui honores amant, regnum in sefactiosis consecleratisque committat; non ne item recte, si quis tunc extilerit vir bonus qui plurimum possit, adimat huic populo potestatem dandi honores. et in paveorum bonorum, vel etiam unjus redregat arbitrium?