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

Samuel Rutherford

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QUESTION 18
What Is the Law of the King, and His Power?

1 Sam. 8:11. “This will be the manner of the king who shall reign over you,” etc.

This place, (1 Sam. 8:11,) the law or manner of the king is alleged to prove both the absolute power of kings, and the unlawfulness of resistance; therefore I crave leave here to vindicate the place, and to make it evident to all that the place speaks for no such matter. Grotius argues thus:1 “that by this place, the people oppressed with injuries of a tyrannous king have nothing left them but prayers and cries to God; and therefore there is no ground for violent resisting.” Barclay2 will have us to distinguish inter officium regis, et potestatem, between the king’s office and the king’s power; and he will have the Lord here speaking, not of the king’s office, what he ought to do before God, but what power a king has beside and above the power of judges, to tyrannise over the people, so as the people has no power to resist it. He will have the office of the king spoken of Deut. 17, and the power of the king, 1 Sam. 8, and that power which the people was to obey and submit unto without resisting. But I answer,

1. It is a vain thing to distinguish between the office and the power; for the power is either a power to rule according to God’s law, as he is commanded, (Deut. 17) and this is the very office or official power which the King of kings has given to all kings under him, and this is a power of the royal office of a king, to govern for the Lord his Maker; or this is a power to do ill and tyrannise over God’s people; but this is accidental to a king and the character of a tyrant, and is not from God, and so the law of the king in this place must be the tyranny of the king, which is our very mind.

2. “Reges sine dominatione ne concipi quidem possunt; — judices dominationem in populum minime habebant.”3 Hence it is clear that Barclay says, that the judges of Israel and the kings are different in essence and nature; so that domination is so essential to a king, that you cannot conceive a king but he must have domination, whereas the judges of Israel had no domination over the people. Hence I argue, that whereby a king is essentially distinguished from a judge that must be from God; but by domination, which is a power to oppress the subject, a king is essentially distinguished from a judge of Israel; therefore, domination and a power to do acts of tyranny, as they are expressed, (ver. 11-13,) and to oppress a subject, is from God, and so must be a lawful power. But the conclusion is absurd; the assumption is the doctrine of Barclay.

The major proposition I prove.

1. Because both the judge and the king was from God; for God gave Moses a lawful calling to be a judge, so did he to Eli and to Samuel, and hence (Deut. 17:15) the king is a lawful ordinance of God. If then the judge and the king be both lawful ordinances, and if they differ essentially, as Barclay says, then that specific form which distinguished the one from the other, to wit, domination and a power to destroy the subject, must be from God; which is blasphemous: for God can give no moral power to do wickedly: for chat is license, and a power to sin against a law of God, which is absolutely inconsistent with the holiness of God; for so the Lord might deny himself, and dispense with sin. God avert such blasphemies!

2. Now if the kingly power be from God, that which essentially and specifically constitutes a king must be from God, as the office itself is from God. Barclay says4 expressly that the kingly power is from God, and that same, which is the specific form that constitutes a king, must be that which essentially separates the king from the judge, if they be essentially different, as Barclay dreams. Hence have we this jus regis, this manner or law of the king to tyrannise and oppress, to be a power from God, and so a lawful power, by which you shall have this result of Barclay’s interpretation, — that God made a tyrant as well as a king.

3. By this difference that Barclay puts between the king and the judge, the judge might be resisted; for he had not this power of domination that Saul has, contrary to Rom. 13:2; Exod. 22:28; 20:12.

But let us try the text first, K7leme@ha +p%a#;Omi the word cannot enforce us to expone +p%a#;Omi a law, our English renders, Show them the manner of the king. Arri. Montanus turns it ratio regis.5 I grant the LXX render it, to\ dikai/wma tou~ basile/wj. The Chaldee Paraphrase says,6 Statutum regis. Hieronimus translates it jus regis, and also Calvin; but I am sure the Hebrew, both in words and sense, bears a consuetude; yea, and the word +p%a#;Omi signifies not always a law, as, (Josh. 6:14,) “They compassed the city +p%f#;Om@ik@a seven times:” the LXX. kata\ to\n kri/ma touto/; 2 Kings 17:26, They “know not the manner of the God of the land; (ver. 33) they served their own gods, after the manner of the heathen.” MyIwOg%ha +p%a#;Omik@; cannot be according to the law or right of the heathen, except +p%a#;Omi, be taken in an evil part: the LXX. kata/ to\ kri/ma tw~n e0qnw~n, ver. 34, “Until this day they do after these manners;” 1 Kings 18:28, Baal’s priests “cut themselves with knives M+fp%f#;Omik@; after their manner:” the LXX. kata/ to\n 0e0qismo\n; Gen. 40:13, Thou shalt give the cup to Pharaoh, according as thou wast wont to do; +p%a#;Omik@; Exod. 21:9, “He shall deal with her after the manner of daughters;” 1 Sam. 27:11,”And David saved neither man nor woman alive, to bring tidings to Gath, saying, So did David, and so will his manner be,” wO+p%f#;Omi .

It cannot be they meant that it was David’s law, right, or privilege, to spare none alive; 1 Sam. 2:13, “And the priests’ custom with the people was,” etc. MynIhjko@ha +p%a#;Omiw% . This was a wicked custom, not a law; and the LXX. turns it, kai\ to\ dikai/wma tou~ i9ere/wv: and therefore dikai/wma is not always taken in a good meaning: so P. Martyr,7 “He means here of an usurped law;” Calvin,8 Non jus a deo prescriptum, sed tyranidem, — “He speaks not of God’s law here, but of tyranny;” and Rivetus,9 +p%a#;Omi signifies not ever jus, law. Sed aliquando inorem sive modum et rationem agendi, — “The custom and manner of doing:” so Junius10 and Tremellius. Diodatus11 expones jus, — This law, “namely, (says he,) that which is now grown to a common custom, by the consent of nations and God’s toleration.” Glossa,12 (to speak of papists,) Exactionem et dominationem, — “The extortion and domination of king Saul is here meant;” Lyra13 expones it tyranny; Tostatus Abuleas.,14 “He means here of kings indefinitely who oppressed the people with taxes and tributes, as Solomon and others;” Cornelius à Lapide,15 “This was an unjust law;” Cajetanus16 calls it tyranny; Hugo Cardinal, names them, exactiones et servitutes, — “exactions and slaveries;” and Serrarius speaks not
here, Quid Reges jure possint. — “What they may do by right and law:” Sed quid audeant, —”What they will be bold to do, and what they tyranically decern against all laws of nature and humanity;” and so speaks Thom. Aquinas;17 so also Mendoza18 speaks of the “law of tyrants;” and, amongst the fathers, Clemens Alexandrinus says on this place,19 Non humanum pollicetur dominum, sed insolentem daturum minatur tyrannum, — “He promises not a humane prince, but threatens to give them an insolent tyrant;” and the like also says Bede;20 and an excellent lawyer, Pet. Rebuffus says,21 Etiam loquitur de tyranno qui non erat a Deo electus, and that he speaks of Saul’s tyrannical usurpation, and not of the law prescribed by God, Deut. 17, I prove, —

1. He speaks of such a power as is answerable to the acts here spoken of; but the acts here spoken of are acts of mere tyranny; ver. 11, “And this will be the manner of your king that shall reign over you: he will take your sons, and appoint them for himself, for his chariots, and to be his horsemen; and some shall run before his chariots.” Now, to make slaves of their sons was an act of tyranny.

2. To take their fields, and vineyards, and oliveyards from them, and give them to his servants, was no better than Ahab’s taking Naboth’s vineyard from him, which by God’s law he might not lawfully sell, except in the case of extreme poverty, and then, in the year of jubilee, he might redeem his own inheritance.

3. (Ver. 15, 16,) To put the people of God to bondage, and make them servants, was to deal with them as the tyrant Pharaoh did.

4. He speaks of such a law, the execution whereof should “make them cry out to the Lord because of their king;” but the execution of the just law of the king (Deut. 17) is a blessing, and not a bondage which should make the people cry out of the bitterness of their spirit.

5. It is clear here that God is, by his prophet, not instructing the king in his duty, but, as Rabbi Levi Ben. Gersom. says,22 “Terrifying them from their purpose of seeking a king, and foretelling the evil of punishment that they should suffer under a tyrannous king;” but he speaks not one word of these necessary and comfortable acts of favor that a good king, by his good government, was to do for his people. Deut. 17:15, 16. But he speaks of contrary facts here; and that he is dissuading them from suiting a king is clear from the text.

    (1.) Because he says, Give them their will; but yet protest against their unlawful course.
    (2.) He bids the prophet lay before them the tyranny and oppression of their king; which tyranny Saul exercised in his time, as the story shows.
    (3.) Because how ineffectual Samuel’s exhortation was is set down, ver. 19, ” Nevertheless they would not obey the voice of Samuel, but said, Nay, but we will have a king over us.” If Samuel had not been dehorting them from a king, how could they be said in this to refuse to hear the voice of Samuel?

6. The ground of Barclay and royalists here is weak; for they say, That the people sought a king like the nations, and the kings of the nations were all absolute, and so tyrants; and God granted their unlawful desire, and gave them a tyrant to reign over them such as the nations had.23 The plain contrary is true. They sought not a tyrant; but one of the special reasons why they sought a king was to be freed of tyranny; for 1 Sam. 8:3, “Because Samuel’s sons turned aside after lucre, and took bribes, and perverted judgment; therefore all the elders of Israel gathered themselves together, and came to Samuel, to Ramah, and there they sought a king.”

7. One could not more clearly speak with the mouth of a false prophet than the author of “Active and Passive Obedience” does, while he will have Samuel here to describe a king, and to say, “Ye have formerly committed one error in shaking off the yoke of God, and seeking a king; so now beware you fall not in the next error, in casting off the yoke of a king, which God, at your own desire, has laid on you; for God only has power to make and unmake kings; therefore prepare yourselves patiently to suffer and bear.

Ans. 1. — For if he were exhorting to patient suffering of the yoke of a king, he should presume it were God’s revealed and regulating will that they should have a king. But the scope of Samuel’s sermon is to dissuade them from a king, and they by the contrary, (ver. 19,) say, “Nay, but we will have a king;” and there is not one word in the text that may intimate patience under the yoke of a king. 2. There is here the description of a tyrant, not of a king. 3. Here is a threatening and a prediction, not anything that smells of an exhortation.

Obj. — But it is evident that God, teaching the people how to behave themselves under the unjust oppressions of their king, set down no remedy but tears, crying to God, and patience; therefore resistance is not lawful.24

Ans. — Though this be not the place due to the doctrine of resistance, yet, to vindicate the place, — 1. I say, there is not one word of any lawful remedy in the text; only it is said, Mkek@;l;ma yn’p;li@mi )w%hha MwOyb@a Mt@eq;(az:w% Et clamatis in illa die a faciebus regis vestri. It is not necessarily to be exponed of praying to God;25 Job 35:9, ” By reason of the multitude of oppressions, they make the oppressed to cry,” w%qy(iz:yA clamare faciunt; Isa. 15:4, “And Heshbon shall cry: q(az;ti@wa the armed soldiers of Moab shall cry out.” There is no other word here than does express the idolatrous prayers of Moab; Isa. 17:12; Hab. 2:11, “The stone shall cry out of the wall q(fz;ti@;” Deut. 22:24, “You shall stone the maid, because she cried not, hqf(jcf-)Ol r#Oe)j rbad;@-l(a;” but she is not to be stoned because she prayed not to God; Psal 18:4, “David’s enemies cried, and there was none to save, even to the Lord, and he heard not.”

2. Though it were the prophet’s meaning, “they cried to the Lord,” yet it is not the crying of a people humbled, and, in faith, speaking to God in their troubles; Zech. 7:13, “They cried, and I would not hear;” therefore royalists must make crying to God out of the bitterness of affliction, without humiliation and faith, and such prayers of sinners as God hears not, (Psal. 18:41; John 9:31; Isa. 17:12,) to be the only remedy of a people oppressed by a tyrannous king. Now, it is certain God prescribes no unlawful means to an oppressed people under their affliction; therefore it is clear here that God speaks only of evils of punishment, such as is to cry in trouble and not be heard of God, and that he prescribes here no duty at all, nor any remedy.

3. All protestant divines say, Ex particulari non valet argumentum negative, — “From one particular place, a negative argument is not good.” This remedy is not written in this particular place, therefore it is not written at all in other places of Scripture; so 1 Tim. 1:19, the end of excommunication is, that the party excommunicated may learn not to blaspheme; therefore the end is not also that the church be not infected. It follows not. The contrary is clear (1 Cor. 5:6). Dr Ferne, and other royalists, teach us that we may supplicate and make prayers to a tyrannous king. We may fly from a tyrannous king; but neither supplicating the king, nor flying from his fury, shall be lawful means left by this argument; because these means are no more in this text (where royalists say the Spirit of God speaks of purpose of the means to be used against tyranny) than violent resistance is in this text.

Barclay, Ferne, Grotius, Arnisaeus, the P. Prelate following them, says, “An ill king is a punishment of God for the sins of the people, and there is no remedy but patient suffering.”

Ans. — Truly it is a silly argument. The Assyrians coming against the people of God for their sins, is a punishment of God. (Isa. 10:5; 12:13.) But does it follow that it is unlawful for Israel to fight and resist the Assyrians, and that they had warrant to do no other thing but lay down arms and pray to God, and fight none at all? Is mere no lawful resisting of ills of punishment, but mere prayers and patience? The Amalekites came out against Israel for their sins, Sennacherib against Hezekiah for the sins of the people; Asa’s enemies fought against him for his sins, and the people’s sins. Shall Moses and the people, Hezekiah and Asa, do then nothing but pray and suffer? Is it unlawful with the sword to resist them? I believe not. Famine is often a punishment of God in a land, (Amos 4:7-8,) is it therefore in famine unlawful to till the earth, and seek bread by our industry, and are we to do nothing but to pray for daily bread? It is a vain argument.

Observe, therefore, the wickedness of Barclay, (contra monarch. l. 2, p. 56,) for he would prove, that “a power of doing ill, and that without any punishment to be inflicted by man, is from God; because oar laws punish not perjury, but leaves it to be punished of God (l. 2, l. de Reb. cred. Cujacius, l. 2, obs. c. 19); and the husband in the law of Moses had power to give a bill of divorce to his wife and send her away, and the husband was not to be punished. And also stews and work-houses for harlots, and to take usury, are tolerated in many Christian commonwealths, and yet these are all sorts of murders by the confession of heathen; therefore, (says Barclay,) God may give a power of tyrannous acts to kings, so as they shall be under no punishment to be indicted by men.

Ans. — All this is an argument from fact. 1. A wicked magistracy may permit perjury and lying in the commonwealth, and that without punishment; and some Christian commonwealths, he means his own synagogue of Rome, spiritual Sodom, a cage of unclean birds, suffers harlots by law, and the whores pay so many thousands yearly to the Pope, and are free of all punishment by law, to eschew homicides, adulteries of Romish priests, and other greater sins; therefore God has given power to a king to play the tyrant without any fear of punishment to be indicted by man. But if this be a good argument, the magistrate to whom God has committed the sword to take vengeance on evil doers, (Rom. 13:3-6,) such as are perjured persons, professed whores and harlots, has a lawful power from God to connive at sins and gross scandals in the commonwealth, as they dream that the king has power given from God to exercise all acts of tyranny without any resistance. But, 1. This was a grievous sin in Eli, that he being a father and a judge, punished not his sons for their uncleanness, and his house, in God’s heavy displeasure, was cut off from the priesthood therefor. Then God has given no such power to the judge. 2. The contrary duty is lying on the judge, to execute judgment for the oppressed, (Job 29:12-17; Jer. 22:15-16,) and perverting of judgment, and conniving at the heinous sins of the wicked, is condemned, (Num. 5:31, 32; 1 Sam. 15:23; 1 Kings 20:42, 43; Isa. 1:17; 10:1; 5:23,) and therefore God has given no power to a judge to permit wicked men to commit grievous crimes, without any punishment. As for the law of divorce, it was indeed a permissive law, whereby the husband might give the wife a bill of divorce, and be free of punishment before men, but not free of sin and guiltiness before God, for it was contrary to God’s institution of marriage at the beginning, as Christ says; and the prophet says, (Mal. 2,) that the Lord hates putting away; but that God has given any such permissive power to the king, that he may do what he pleases, and cannot be resisted, this is in question. 3. The law spoken of in the text is by royalists called, not a consuetude of tyranny, but the divine law of God, whereby the king is formally and essentially distinguished from the judge in Israel; now if so, a power to sin and a power to commit acts of tyranny, yea, and a power in the king’s sergeants and bloody emissaries to waste and destroy the people of God, must be a lawful power given of God; for a lawful power it must be if it comes from God, whether it be from the king in his own person, or from his servants at his commandment, and by either put forth in acts, as the power of a bill of divorce was a power from God, exempting either the husband from punishment before men, or freeing the servant, who at the husband’s command should write it and put it in the hands of the woman. I cannot believe that God has given a power, and that by law, to one man to command twenty thousand cut-throats to kill and destroy all the children of God, and that he has commanded his children to give their necks and heads to Babel’s sons without resistance. This I am sure is another matter than a law for a bill of divorce to one woman married by free election of a changeable and unconstant man. But sure I am, God gave no permissive law from heaven like the law of divorce, for the hardness of the heart, not of the Jews only, but also of the whole Christian and heathen kingdoms under a monarch, that one emperor may, by such a law of God as the law of divorce, kill, by bloody cutthroats, such as the Irish rebels are, all the nations that call on God’s name, men, women, and sucking infants. And if Providence impede the catholic issue, and dry up the seas of blood, it is good; but God has given a law, such as the law of divorce, to the king, whereby he, and all his, may, without resistance, by a legal power given of God, who gives kings to be fathers, nurses, protectors, guides, yea the breath of nostrils of his church, as special mercies and blessings to his people, he may, I say, by a law of God, as it is 1 Sam. 8:9, 11, cut off nations, as that lion of the world, Nebuchadnezzar, did. So royalists teach us.

Barclay says (1. 2. contra Monarch, p. 69) — The Lord spake to Samuel the law of the king, and wrote it in a book, and laid it up before the Lord. But what law? That same law which he proposed to the people when they first sought a king. But that was the law contemning precepts, rather for the people’s obeying than for the king’s commanding; for the people was to be instructed with those precepts, not the king. Those things that concerned the king’s duty (Deut. 17.) Moses commanded to be put into the ark; but so if Samuel had commanded the king that which Moses (Deut. 17) commanded, he had done no new thing, but had done again what was once done actum egisset; but there was nothing before commanded the people concerning their obedience and patience under evil princes. Joseph. Antiq. (l. 6, c. 5;) wrote, ta\ mello/nta kaka/ the evils that were to befall them.

Ans. 1. — It was not that same law, for though this law was written to the people, yet it was the law of the king; and, I pray you, did Samuel write in a book all the rules of tyranny, and teach Saul, and all the kings after him, (for this book was put in the ark of the covenant, where also was the book of the law) how to play the tyrant? And what instruction was it to king or people to write to them a book of the wicked ways of a king, which nature teaches without a doctor? Sanctius says on the place, These things which, by men’s fraud and to the hurt of the public, may be corrupted, were kept in the tabernacle, and the book of the law was kept in the ark. Cornelius à Lapide says, It was the law common to king and people, which was commonly kept with the book of the law in the ark of the covenant, Lyra contradicts Barclay. He expones Legem, legem regni non secundum usurpationem supra positam, sed secundum ordinationem Dei positam. (Deut. 17.) Theodatius excellently expones it, The fundamental laws of the kingdom, inspired by God to temper monarchy with a liberty befitting God’s people, and with equity toward a nation — to withstand the abuse of an absolute power. 2. Can any believe Samuel would have written a law of tyranny, and put that book in the ark of the covenant before the Lord, to be kept to the posterity, seeing he was to teach both king and people the good and the right way, 1 Sam. 12:23-25. 3, Where is the law of the kingdom called a law of punishing innocent people? 4. To write the duty of the king in a book, and apply it to the king, is no more superfluous than to teach the people tho good and the right way out of the law, and apply general laws to particular persons. 5. There is nothing in the law (1 Sam. 8:9-12) of the people’s patience, but rather of their impatient crying out, God not hearing nor helping; and nothing of that in this book, for any thing that we know, and Josephus speaks of the law in 1 Sam. 8, not of this law, 1 Sam. 12.


NOTES

     1.    Grotius de jura belli et pacis, lib. 1, c. 4, n. 3.
     2.    Barclaius contra Monarchom. lib. 2, p. 64. Potestatem intelligit non eam quae competit ex praecepto, neqne etiam quae ex permissu est, quatenus liberat a peccato, sed quatenus paenis legalibus eximit operantem.
     3.    Barclaius contra Monarcho, lib. 2. p. 56, 57.
     4.    Barclaius, lib. 3, c. 2.
     5.    Arr. Mon. Haec erit ratio Regis.
     6.    Chald. Para, )hy )smn )klmd .
     7.    P. Martyr, comment. 1 Sam. 8, verum jus regium describit in Deut. apud Samuelum autem usurpatum.
     8.    Calvin, conc. 1 Sam. 8.
     9.    Andr. Rivetus in decal., Exod. 20 in 5, mundat., p. 165.
   10.    Junius annot., in 1 Sam. 2:13.
   11.    Diodatus annot., 1 Sam. 8:3.
   12.    Glossa interlinearis.
   13.    Lyra in locum. hic accipitur jus large sumptum quod reputatur jus propter malum abusum. Nam illa quae dicuntur hic de jure Regis, magis conungunt per tyranidem.
   14.    Tostatus Abulens. in 1 Reg. 8, q. 17 de q. 21.
   15.    Cornelius à Lapide. in locum.
   16.    Cajetanus, in locum.
   17.    Thom. Aquinas, l. 3, de Regni Princip. c. 11.
   18.    Mendoza, jus Tyrannorum.
   19.    Clemens Alexand. p. 26.
   20.    Beda, l. 2, expo. in Samuel.
   21.    Pet. Rebuffus tract. de incongrua. prert. p. 110.
   22.    Ben. Gersom. in 1 Sam. 8, Pezelius in exp. leg. Mosai. 1. 4, c. 8. Tossan. in not. Bibl. Bosseus de Rep. Christ. potest. supra regem, c. 2, n, 103. Bodin, de Rep. l. 1, c. 19. Brentius, homil. 27, in 1 Sam. 8, Mos regis non de jure, sed de vulgatam consuetudine.
   23.    Dr Ferne, sect. 2, p. 55.
   24.    Dr. Ferne, part 3, sect. 2, p. 10.
   25.    Learned authors teach that God’s law, (Deut. 17; and the +p%a#O;mi a manner of the king, (1 Sam. 8:9,) are opposite one to another, so Gersom. in trinprinc. sac. adu. lat. par. 4, Alp. 66, lit. 1. cons. 8, Buchan. de jure regni apud Scot. Chasson. cat. glo. mundi cons. 24, n. 162, cons. 35. Tholoss. l. 9, c. 1. Rossen. de polus. Rep. c. 2, n. 10. Magdeburg. in trac. de off ma.

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