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

Samuel Rutherford

Whether the Power of War Be Only in the King

It is not hard to determine this question. The sword in a constitute commonwealth is given to the judge supreme or subordinate; (Rom. 13:4;) “He bears not the sword in vain” in the empire. The use of armor is restricted to the emperor by a positive law; so the law says, Armorum officia nisi jussu principis sunt interdicta, (lib. de Cod. de Lege. 1.) Imperat Valentinian nulli, nobis inconsultis, usus armorum tribuatur, (ad 1. Jul. Mai. l. 3.) War is a species and a particular, the sword is a general.

Assert. — 1. The power of the sword, by God’s law, is not proper and peculiar to the king only, but given by God to the inferior judges. 1. Because the inferior judge is essentially a judge no less than the king, as is proved, therefore he must bear the sword. (Rom. 13:4.) 2. Not Moses only, but the congregation of Israel, had power of life and death, and so of the sword; Num. 35:12, the man-slayer shall not die, “until he stand before the congregation in judgment;” ver. 24, “Then the congregation shall judge between the slayer and the avenger of. blood;” Deut. 22:18, “The elders of the city shall take that man and chastise him;” ver. 21, “The men of the city shall stone her with stones;” Deut. 17:5; 19:12-13, 5:18-21; 21:19, “Then shall his father and his mother bring him to the elders of his city;” ver. 21, “And the men of the city shall stone him with stones;” 1 Kings 21:11. The elders and nobles that were inhabitants in his city stoned Naboth. 3. Inferior judges are condemned as murderers, who have shed innocent blood, (Isa. 1:12; Psal. 94:5-6; Jer. 22:3; Ezek. 22:12, 27; Hosea 6:8; Zeph. 3:1-3,) therefore, they must have the power of the sword, hence, upon the same grounds.

Assert. 2. — That the king only has the power of war, and raising armies must be but a positive civil law. For, 1. By divine right, if the inferior judges have the sword given to them of God, then have they also power of war, and raising armies. 2. All power of war that the king has is cumulative, not privative, and not destructive, but given for the safety of the kingdom; as therefore the king cannot take from one particular man the power of the sword for natural seif-preservation, because it is the birthright of life, neither can the king take from a community and kingdom a power of rising in arms for their own defense. If an army of Turks shall suddenly invade the land, and the king’s express consent cannot be had, (tor it is essentially involved in the office of the king, as king, that all the power of the sword that he has be for their safety,) or if the king should, as a man, refuse his consent, and interdict and discharge the land to rise in arms, yet they have his royal consent, though they want his personal consent, in respect that his office obliges him to command them to rise in arms. 3. Because no king, no civil power can take away nature’s birthright of self-defense from any man, or a community of men. 4. Because if a king should sell his kingdom, and invite a bloody conqueror to come in with an army of men to destroy his people, impose upon their conscience an idolatrous religion, they may lawfully rise against that army without the king’s consent; for, though royalists say, they need not come in asinine patience, and offer their throats to cut-throats, but may flee, yet several things hinders a flight.

    1st. They are obliged by virtue of the fifth commandment to remain, and, with their sword, defend the cities of the Lord and the king (2 Sam. 10:12; 1 Chron. 19:13); for if to defend our country and children, and the church of God, from unjust invaders and cut-throats, by the sword, be an act of charity that God and the law of nature requires of a people, as is evident, (Prov. 24:11,) and if the fifth commandment oblige the land to defend their aged parents and young children from these invaders, and if the sixth commandment lay on us the like bond, all the land are to act works of mercy and charity, though the king unjustly command the contrary, except, royalists say, that we are not to perform the duties of the second table commanded by God, if an earthly king forbid us; and if we exercise not acts of mercy towards our brethren, when their life is in hazard, to save them, we are murderers; and so men may murder their neighbor if the king command them so to do; this is like the court-faith.
    2nd. The king’s power of wars is for the safety of his people; if he deny his consent to their raising of arms till they be destroyed, he plays the tyrant, not the king, and the Law of nature will necessitate them either to defend themselves, (seeing flight of all in that case is harder than death,) else they must be guilty of self-murder. Now, the king’s commandment of not rising in arms, at best, is positive and against the nature of his office, and it flows then from him as from a man, and so must be far inferior to the natural commandment of God, which commands self-preservation, if we would not be guilty of self-murder, and of obeying men rather than God; so Althusius (Polit. c. 25, n. 9), Halicarnas. (1. 4, Antiq. Rom.), Aristot. (Polit. l. 3, c. 3).
    3rd. David took Goliath’s sword and became a captain, a captain to an host of armed men in the battle, and fought the battles of the Lord, (1 Sam. 25:28,) and this Abigail by the spirit of prophecy, as I take it, says, (ver. 29-31; 1 Sam. 22:2; 1 Chron. 12:1-3; 17:18, 21-22,) not only without Saul’s consent, but against king Saul, as he was a man, but not against him as he was king of Israel.
    4th. If there be no king, or the King be minor, or an usurper, as Athaliah, be on the throne, the kingdom may law. fully make war without the king, as (Judg. 20) the children of Israel, — four hundred thousand footmen that drew sword, went out to war against the children of Benjamin. Judah had the power of the sword when Josiah was but eight years old, in the beginning of his reign, (2 Kings 22:1-2,) and before Jehoash was crowned king, and while he was minor, (2 Kings 11,) there were captains of hundreds in arms raised by Jehoiada, and the people of Judah, to defend the young king, it cannot be said that this is more extraordinary than that it is extraordinary for kings to die, and in the interregnum, wars, in an ordinary providence, may fall out in these kingdoms, where kings go by election; and for kings to fall to be minors, captives, tyrannous. And I shall be of that opinion that Mr. Symmons, who holds that royal birth is equivalent to divine unction, must also hold, that election is not equivalent to divine unction; for both election and birth cannot be of the same validity, the one being natural, the other a matter of free choice, which shall infer that kings by election are less properly, and analogically only, kings; and so Saul was not properly a king, for he was king by election; but I conceive that rather kings by birth must be less properly kings, because the first king by God’s institution, being the mold of all the rest, was by election (Deut. 17:18-20).
    5th. If the estates create the king, and make this man king, not that man, (as 13 clear from Deut. 17:18, and 2 Chron. 5:1-4,) they give to him the power of the sword, and the power of war, and the militia; and I shall judge it strange and reasonless, that the power given to the king, by the parliament or estates of a free kingdom, (such as Scotland is acknowledged by all to be,) should create, regulate, limit, abridge, yea, and annul that power that created itself. has God ordained a parliamentary power to create a royal power of the sword and war, to be placed in the king, the parliament’s creature, for the safety of parliament and kingdom, which yet is destructive of itself? Dr Ferne says that “the king summons a parliament, and gives them power to be a parliament, and to advise and counsel him;” and, in the meantime, Scripture says (Deut. 17:18-20; 1 Sam. 10:20-25; 2 Sam. 5:1-4) that the parliament creates the king. Here is admirable reciprocation of creation in policy! Shall God make the mother to destroy the daughter? The parliamentary power that gives crown, militia, sword, and all to the king, must give power to the king to use sword and war for the destruction of the kingdom, and to annul all the power of parliaments, to make, unmake parliaments, and all parliamentary power, what more absurd?

Obj. 1. — (Symmons, p. 57). These phrases, (1 Sam. 9:1,) “When kings go forth to war,” and (Luke 14:31) “What king going forth to war,” speak to my conscience, that both offensive and defensive war are in the king’s hand.

Ans. — It is not much to other men what is spoken to any man’s conscience by phrase and customs; for by this no states, where there be no kings, but government by the best, or the people, as in Holland, or in other nations, can have power of war; for what time of year shall kings go to war who are not kings? and because Christ says, “A certain householder delivered talents to his servants.” will this infer to any conscience, that none but a householder may take usury? And when he says, “If the good man of the house knew at what hour the thief would come, he would watch;” shall it follow the son or servant may not watch the house, but only the good man?

Obj. 2. — (Ferne, p. 95.) The natural body cannot move but upon natural principles; and so neither can the politic body move in war, but upon politic reasons from the prince, which must direct by law.

Ans. 1. — This may well be retorted, the politic head cannot then move but upon politic reasons; and so the king cannot move to wars but by the law, and that is by consent of Parliament; and no law can principle the head to destroy the members. 2. If an army of cut-throats rise to destroy the kingdom, because the king is behind in his place in doing his duty, how can the other judges, the states and parliament, be accessory to murder committed by them in not raising armies to suppress such robbers? Shall the inferior judges be guilty of innocent blood because the king will not do his duty? 3. The politic body ceases no more to renounce the principles of sinless nature in self-defense, because it is a politic body, and subject to a king, than it can leave off to sleep, eat, and drink; and there is more need of politic principles to the one than the other. 4. The parliaments and estates of both kingdoms move in these wars by the king’s laws, and are a formal politic body in themselves.

Obj. 2. — The ground of the present wars against the king, says Dr Ferne, (sect. 4, p. 13,) is false, to wit, that the parliament is co-ordinate with the king; but so the king shall not be supreme, the parliament’s consent is required to an act of supremacy, but not to a denial of that act. And there can no more (says Arnisaeus, de jure majestatis, c. 3; in quo consistat essen. majest. c. 3, n. 1; and an jur. majest. separ., etc. c. 2, n. 2) be two equal and co-ordinate supreme powers than there can be two supreme Gods; and multitudo deorum est nullitas deorum, many gods infer no gods.

Ans. 1. — If we consider the fountain power, the king is subordinate to the parliament, and not co-ordinate; for the constituent is above that which is constituted. If we regard the derived and executive power in parliamentary acts, they make but a total and complete sovereign power; yet so as the sovereign power of the parliament, being habitually and underived a prime and fountain-power, (for I do not here separate people and parliament,) is perfect without the king, for all parliamentary acts, as is clear, in that the parliament make kings, make laws, and raise armies, when either the king is minor, captived, tyrannous, or dead; but royal power parliamentary without the parliament, is null, because it is essentially but a part of the parliament, and can work nothing separated from the parliament, no more than a hand cut off from the body can write; and so here we see two supremes co-ordinate. Amongst infinite things there cannot be two, because it involves a contradiction, that an infinite thing can be created, for then it should it be finite; but a royal power is essentially a derived and created power and supreme, secundum quid, only in relation to single men, but not in relation to the community; it is always a creature of the community, with leave of the royalist. 2. It is false, that to an act of parliamentary supremacy the consent of the king is required, for it is repugnant that there can be any parliamentary judicial act without the parliament, but there may be without the king. 3. More false it is, that the king has a negative voice in parliament; then he shall be sole judge, and the parliament, the king’s creator and constituent, shall be a cypher.

Obj. 3.. — (Arnisaeus, de jur. maj. de potest. armorum, c. 5, n. 4.) The people are mad and furious, therefore supreme majesty cannot be secured, and rebels suppressed, and public peace kept, if the power of armor be not in the king’s hand only.

Ans. 1. — To denude the people of armor, because they may abuse the prince, is to expose them to violence and oppression, unjustly; for one king may more easily abuse armor than all the people; one man may more easily fail than a community. 2. The safety of the people is far to be preferred before the safety of one man, though he were two emperors, one in the east, another in the west, because the emperor is ordained of God for the good and safety of the people. (1 Tim. 2:2.) 3. There can be no inferior judges to bear the sword, as God requires, (Rom. 13:4; Deut. 1:15, 16; Chron. 19:6-7,) and the king must be sole judge, if he only have the sword, and all armor monopolized to himself.

Obj. 4. — The causes of war, says Mr. Symmons, (sect. 4, p. 9,) should not be made known to the subjects, who are to look more to the lawful call to war from the prince than to the cause of the war.

Ans. 1. — The parliament and all the judges and nobles are subjects to royalists, if they should make war and shed blood upon blind obedience to the king, not inquiring either in causes of law or fact, they must resign their consciences to the king. 2. The king cannot make unlawful war to be lawful by any authority royal, except he could rase out the sixth commandment; therefore subjects must look more to the causes of war than to the authority of the king; and this were a fair way to make parliaments of both kingdoms set up popery by the sword, and root out the reformed religion upon the king’s authority, as the lawful call to war, not looking to the causes of war.