Monday, February 24, 2014

The Doctrine of Non-Partiality as a Basis for the Interposition of Lesser Magistrates

It was the doctrine of non-partiality that brought the tyrant
King Charles I to trial, and effectively beheaded the notion
of the divine right of kings - which held kings to be
above the law.

by Steve C. Halbrook

The notion of the divine right of kings holds that higher magistrates are above the law and therefore cannot be made to answer for crimes against the people—even by the interposition of lesser magistrates. 

While this has been advocated by many in history and justified by Scripture itself, this view is demolished when confronted with a foundational principle of civil government: the doctrine of non-partiality. Consider the following verses:
Judges and officers shalt thou make thee in all thy gates, which the Lord thy God giveth thee, throughout thy tribes: and they shall judge the people with just judgment.Thou shalt not wrest judgment; thou shalt not respect persons, neither take a gift: for a gift doth blind the eyes of the wise, and pervert the words of the righteous. (Deuteronomy 16:18, 19)
Ye shall not respect persons in judgment; but ye shall hear the small as well as the great; ye shall not be afraid of the face of man; for the judgment is God's: and the cause that is too hard for you, bring it unto me, and I will hear it. (Deuteronomy 1:17)
Ye shall do no unrighteousness in judgment: thou shalt not respect the person of the poor, nor honor the person of the mighty: but in righteousness shalt thou judge thy neighbour. (Leviticus 19:15)
"Nor can I think that God's law, or
his deputy the judges, are to accept
the persons of the great, because
they are great."
-- Samuel Rutherford
According to these texts, civil rulers are not to show favoritism to anyone"the great" included. And, naturally, the great includes the highest ranking civil rulers. As Samuel Rutherford, author of the enormously influential book Lex Rex ("the law is king"), writes:
Nor can I think that God's law, or his deputy the judges, are to accept the persons of the great, because they are great; (Deut. i. 17; 2 Chron. xix. 6, 7;) and we say, we cannot distinguish where the law distinguisheth not. The Lord speaketh to under judges, (Lev. xix. 15,) "Thou shalt not respect the person of the poor, nor honour the person of the mighty," or of the prince ... [1]
Indeed, since the legal system is not to show favoritism to the highest rulers in the land, then there must be a means of holding them accountable when they break the law. Since it is the job of rulers to hold lawbreakers accountable, then the logical choice for holding rulers who break the law accountable is other rulers. Thus it seems that when a higher magistrate commits a crime (e. g., murder or seduction to idolatry), then lower magistrates should seek to bring him to justice. 

The means for doing so would ideally be peaceful (e.g., a warrant and arrest). But if the higher magistrate refuses to cooperate, then lesser magistrates can use force—just as they would do to a normal citizen. 

If lower magistrates refuse to hold accountable higher magistrates who commit criminal acts, then they would be guilty of favoritism, and thus violate Scripture. They would be a respecter of the great. For how can they try regular citizens for the very crimes that they overlook in higher magistrates? How could they try regular citizens for murder, but not a king or a president for genocide?

As the English Bishop John Ponet, a strong opponent of "the divine right of kings," writes:
But I beseech you, what needs to make one general law to punish by one name a great many offenses, when the law is all ready made for the punishment of everyone of them particularly. If a prince robs and spoils his subjects, it is theft, and as a thief ought to be punished. If he kills and murders them contrary or without the laws of his country, it is murder, and a murderer he ought to be punished. If he commits adultery, he is an adulterer and ought to be punished with the same pains that others be. If he violently ravish men's wives, daughters, or maidens, the laws that are made against ravishers, ought to be executed on him. If he goes about to betray his country, and to bring the people under a foreign power: he is a traitor, and as a traitor he ought to suffer. And those that be judges in commonwealths, ought (upon complaint) to summon and cite them to answer to their crimes, and so to proceed, as they do with others. For the prophet speaking unto those that have the rule in commonwealths, and that be judges and other ministers of justice, he says: "Minister justice to the poor and orphaned, pronounce the miserable and poor to be innocent, if he be innocent: take the poor, and deliver the needy out of the hands of the wicked". When you sit to judge, you shall not have respect of persons, whether they be rich or poor, great or small: fear no man, for you execute the judgment of God, says the Holy Ghost by the mouth of Moses. Judge not after the outward appearance of man, but judge rightly, says Christ.[2]
Note how Ponet assumes the doctrine of non-partiality, as he states, "When you sit to judge, you shall not have respect of persons, whether they be rich or poor, great or small." 

What seems to confirm our thesis that the doctrine of non-partiality warrants civil punishments for criminal acts by even higher magistrates is 2 Chronicles 15:12, 13:
And they entered into a covenant to seek the Lord God of their fathers with all their heart and with all their soul; That whosoever would not seek the Lord God of Israel should be put to death, whether small or great, whether man or woman.
According to this text, even the "great" (e. g., higher magistrates) are subject to capital punishment for criminal behavior. To "not seek the Lord" at least means to violate Scripture's civil law against apostate idolatry per Deuteronomy 17:2, 3. In any case, if higher magistrates must be held accountable for this criminal act, then surely they must be held accountable for all other acts that Scripture considers criminal.

John Knox reminds Mary, Queen of Scots of her duty.

John Knox, the great interposition theologian, saw the implications of 2 Chronicles 15:12, 13. He draws on this passage in an appeal to Scotland's lesser magistrates, noting their duty to restrain and punish all seducers to idolatryeven if it was the king himself. The basis for this is the doctrine of non-partiality:
And this is the first, which I would your honours should note, of the former words: to wit, that no person is exempted from punishment, if he can be manifestly convicted to have provoked or led the people to idolatry. And this is most evidently declared in that solemn oath and covenant which Asa made with the people to serve God, and to maintain his religion, adding this penalty to the transgressors of it: to wit, "that whosoever should not seek the Lord God of Israel should be killed: were he great, or were he small, were it man, or were it woman" (2 Chron. 15:13). And of this oath was the Lord pleased; he was found of them, and gave them rest on every part, because they sought him with their whole heart, and did swear to punish the offenders, according to the precept of his law, without respect of persons. And this is it which, I say, I would your honours should note for the first, that no idolater can be exempted from punishment by God's law.[3]
The doctrine of non-partiality—which provides a theological basis for the interposition of lesser magistrates and the "rule of law"—can also be argued from Exodus 12:49:
One law shall be to him that is homeborn, and unto the stranger that sojourneth among you. (See also Leviticus 24:22 and Numbers 15:15, 16.)
If there is to be only one law for everyone in the nation, then higher magistrates are not exempt from laws governing the rest of the people. Otherwise, there would be two laws—one for the people, and one for higher magistrates—which contradicts this text.

Charles I faces justice

The doctrine of non-partiality applied: the English Parliament brings the tyrant King Charles I to justice

During his reign as king of England, Charles I abused his power. Parliament interposed, which resulted in the English Civil War. After the Parliamentarian army defeated the king, Charles I was tried and convicted for commiting a multitude of crimes under the cloak of authority. As part of his sentence reads,
the said Charles Stuart, being admitted King of England, and therein trusted with a limited power to govern by, and according to the law of the land, and not otherwise; and by his trust, oath, and office, being obliged to use the power committed to him for the good and benefit of the people, and for the preservation of their rights and liberties; yet, nevertheless, out of a wicked design to erect and uphold in himself an unlimited and tyrannical power to rule according to his will, and to overthrow the rights and liberties of the people, and to take away and make void the foundations thereof, and of all redress and remedy of misgovernment, which by the fundamental constitutions of this kingdom were reserved on the people's behalf in the right and power of frequent and successive Parliaments, or national meetings in Council; he, the said Charles Stuart, for accomplishment of such his designs, and for the protecting of himself and his adherents in his and their wicked practices, to the same end hath traitorously and maliciously levied war against the present Parliament, and people therein represented, as with the circumstances of time and place is in the said charge more particularly set forth; and that he hath thereby caused and procured many thousands of the free people of this nation to be slain ... [4]
"[J]ustice is no respecter of
persons." -- Solicitor-General
John Bradshawe (above) to
Charles I
It was the doctrine of non-partiality that brought the tyrant Charles I to justice and effectively beheaded the notion of the divine right of kings. 

This is partly seen in an account of a conversation between Charles I and Major Thomas Harrison while the king was in custody before his trial. The king abruptly left the conversation after Harrison said 
"that the law was equally obliging to great and small, and that justice had no respect to persons; or words to that purpose."[5] 
The king, in short, was informed that he would be tried for his alleged crimes just like everybody else. In the eyes of the law, "the great" would be shown no favoritism.

The doctrine of non-partiality is also evoked during the trial itself. When Charles I stubbornly and arrogantly refuses to acknowledge the court's authority, the Solicitor-General John Bradshawe, while demanding a plea to the charges, reminds him that justice is not partial:
Sir, in plain termsfor justice is no respecter of persons—you are to give your positive and final answer, in plain English, whether you are guilty or not guilty of these treasons laid to your charge.[6]
Charles I was ultimately convicted and beheaded for being "a tyrant, traitor, murderer, and public enemy to the good people of this nation."[7] This was such a victory for the doctrine of non-partiality that it set a precedent for trying later tyrants. As the internationally renowned human rights lawyer Geoffrey Robertson notes,
[T]he King's trial may now be seen as the earliest precedent for trials of modern heads of state—political and military leaders like Pinochet and Milošević, who attempt (just like Charles I) to plead sovereign immunity when arraigned for killing their own people.[8]
When lesser magistrates consistently apply the doctrine of non-partiality in particular and biblical civil law in general, they can become a terror not only to evildoing citizens, but to evildoing tyrants as well. The key is the fear of God: when lesser magistrates tremble before the Almighty, they are equipped to cause the criminal higher magistrate to tremble before the law:
And said to the judges, Take heed what ye do: for ye judge not for man, but for the Lord, who is with you in the judgment. Wherefore now let the fear of the Lord be upon you; take heed and do it: for there is no iniquity with the Lord our God, nor respect of persons, nor taking of gifts. (2 Chronicles 19:6-7)

Notes ____________________________

[1] Samuel Rutheford, Lex, Rex, or The Law and the Prince (Harrisonburg, VA: Sprinkle Publications, 1982), 131.
[2] John Ponet, A Short Treatise on Political Power, and of the true obedience which subjects our to kings and other civil governors, with an Exhortation to all true and natural English men, ed., Patrick S. Poole (1556). Retrieved February 15, 2014 from
[3] "The Appellation of John Knox," in John Knox, The History of the Reformation of Religion in Scotland (Edinburgh: Blackie, Fullarton, & Co. and A. Fullarton and Co., 1831), 391. 
[4] "The Sentence of the High Court of Justice upon the King," January 27, 1648-9. Rushworth, vii. 1418. See Great Civil War, iv. 312. Retrieved February 15, 2014 from
[5] Roger Lockyer, ed., The Trial of Charles I (London: Folio Society, 1971), 61. Cited in Geoffrey Robertson, The Tyrannicide Brief: The Story of the Man Who Sent Charles I to the Scaffold (NY: Pantheon Books, 2005), 130. [6] Cited in Robertson, The Tyrannicide Brief, 170.
[7] "The Sentence of the High Court of Justice upon the King."
[8] Robertson, The Tyrannicide Brief, 3.

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