Contra Libertarianism

“And thou, Ezra, after the wisdom of thy God, that is in thine hand, set magistrates and judges, which may judge all the people… all such as know the laws of thy God; and teach ye them that know them not.  

And whosoever will not do the law of thy God, and the law of the king, let judgment be executed speedily upon him, whether it be unto death, or to banishment, or to confiscation of goods, or to imprisonment.  Blessed be the Lord God of our fathers, which hath put such a thing as this in the king’s heart…”

Ezra 7:26

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Rutherford, Samuel

About this Quote

While the natural instinct of persons necessarily distinguishes between ‘mine and yours’, yet the specific laws of property-holding stem not from the fundamental law of nature, but from the law of nations and civil society by positive, specific, enactment (which is based on, and flows from the instincts and law of nature).  At creation, the creation was given generally to mankind without nature determining what property is whose.

Thus, in extreme circumstances, where the strongest instincts of nature come prominently to the fore, these natural forces legitimately override secondary laws of civil society, and all things, in some respects, are fundamentally shared in common.  Property laws are not an absolute.

However, property rights are still more basic than kingship (see the sections immediately before and after this quote) and hence the civil magistracy does not own all the goods of the subjects (which Rutherford’s opponents had argued was a divine-right of the king).

However, by natural instinct and law, extreme circumstances legitimately call for extreme measures.  Rutherford delineates the exceptions where the king does have a qualified right, in some respect, to all of his citizens property insofar as these exceptions are consistent with the God-prescribed design of the civil office elucidated in Rom. 13:1-5.

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Lex Rex, Question 16, p. 67  ‘All the Goods of the Subjects are the King’s in a Fourfold Sense’

“Assertion 2:  All the goods of the subjects belongs not to the king.  

I presuppose that the division of goods does not necessarily flow from the law of nature [which is more fundamental than the positive laws of society and kings], for God made man, before the Fall, lord of the creatures indefinitely; but what goods be Peter’s, and not Paul’s, we know not.  

But supposing man’s sin, though the light of the sun and air be common to all, and religious places [such as buildings for public worship] be proper to none [as they are provided out of the public funds, by and for all], yet it is morally impossible that there should not be a distinction of meum et tuum, ‘mine and thine’; and the decalogue forbidding theft, and coveting the wife of another man (yet is she the wife of Peter, not of Thomas, by free election, not by an act of nature’s law) does evidence to us, that the division of things is so far forth (men now being in the state of sin) of the law of nature, that it has evident ground in the law of nations [which is more specific and positive, being built upon the law of nature, but less fundamental than it]; and thus far natural, that the heat that I have from my own coat and cloak, and the nourishment from my own meat are physically incommunicable to any.  

But I hasten to prove the proposition: If I have leave to permit that, in time of necessity, all things are common by God’s law, [then] a man travelling might eat grapes in his neighbor’s vineyard, though he was not licensed to carry any [a]way.  I doubt if David, wanting [lacking] money, was necessitated to pay money for the showbread, or for Goliath’s sword, supposing these to be the very goods of private men, and ordinarily to be bought and sold.

Nature’s law in extremity, for self-preservation, has rather a prerogative royal above all laws of nations and all civil laws, than any moral king.  In this meaning:

1.  Any one man is obliged to give all he has for the good of the commonwealth, and so far the good of the king, inasfar as he is head and father of the commonwealth.

2.  All things are the king’s, in regard of his public power to defend all men and their goods from unjust violence.

3.  All are the king’s, in regard of his act of conservation of goods, for the use of the just owner.

4.  All are the king’s in regard of a legal limitation, in case of a damage offered to the commonwealth.  Justice requires confiscation of goods for a fault; but confiscated goods are to help the interested commonwealth, and the king, not as a man (to bestow them on his children) but as a king.  To this we may refer these called bona caduca et inventa [goods fallen and found], things lost by shipwreck or any other providences…”