The Ninth Commandment

Procedures of the Court

Professor: Dr. R.J. Rushdoony

Subject: Prerequisite/Law

Genre: Speech

Lesson: 9

Track: 112

Dictation Name: RR130BJ112

Date: 1960s-70s

I Kings 3:5-15, our subject, “The Procedure of the Court.” I Kings 3:5-15:

“5In Gibeon the Lord appeared to Solomon in a dream by night: and God said, Ask what I shall give thee.

6 And Solomon said, Thou hast shewed unto thy servant David my father great mercy, according as he walked before thee in truth, and in righteousness, and in uprightness of heart with thee; and thou hast kept for him this great kindness, that thou hast given him a son to sit on his throne, as it is this day.

7 And now, O Lord my God, thou hast made thy servant king instead of David my father: and I am but a little child: I know not how to go out or come in.

8 And thy servant is in the midst of thy people which thou hast chosen, a great people that cannot be numbered nor counted for multitude.

9 Give therefore thy servant an understanding heart to judge thy people, that I may discern between good and bad: for who is able to judge this thy so great a people?

10 And the speech pleased the Lord, that Solomon had asked this thing.

11 And God said unto him, Because thou hast asked this thing, and hast not asked for thyself long life; neither hast asked riches for thyself, nor hast asked the life of thine enemies; but hast asked for thyself understanding to discern judgment;

12 Behold, I have done according to thy words: lo, I have given thee a wise and an understanding heart; so that there was none like thee before thee, neither after thee shall any arise like unto thee.

13 And I have also given thee that which thou hast not asked, both riches, and honour: so that there shall not be any among the kings like unto thee all thy days.

14 And if thou wilt walk in my ways, to keep my statutes and my commandments, as thy father David did walk, then I will lengthen thy days.

15 And Solomon awoke; and, behold, it was a dream. And he came to Jerusalem, and stood before the ark of the covenant of the Lord, and offered up burnt offerings, and offered peace offerings, and made a feast to all his servants.”

We have in past weeks, as we have analyzed the law principle, “Thou shalt not bear false witness,” discussed in part the function of judges, of witnesses, of the laws of evidence, and other aspects of the procedure of the court in Biblical Law. This morning we shall consider certain other aspects briefly and one in particular.

First of all, the place of the court; as we have noted, several times in the past, was at the city gates in an open forum. This is referred to repeatedly in the law (Deuteronomy 21:19, 22:15, 25:7 and many other places). When the case was finally appealed to the king, it was tried at the porch of judgment at the king’s palace (I Kings 7:7 gives us this fact, as well as non-Biblical records). The court, in other words, was held out in the open and was open to the public. Symbolically, it was at the gates of the city to indicate that justice is the gates to the city. Moreover, by being made open to all, the principle of secret trials was denied.

Public executions were also a part of the law. It is significant that one contemporary sociologist, Dr. Nesbit, one of the few good ones we have in America, he is at UC Riverside, has stated that secret execution, like secret trials, are a prelude to totalitarianism. Within the lifetime of many people still living, executions have ceased to be public. Today we are seeing the second set, trials being barred to the press or the public. The biblical requirement was that it be at all times open. This was a guarantee of justice, in that the public was made fully aware of the conduct of all cases.

Second, the records had to be written. That is, the court proceedings were in writing. As far back as the Book of Job, which conservative scholars believe to be the oldest book of the Bible in its completed form, dating (apparently) back to the time of Abraham and Isaac, we find reference to the fact that trials were recorded. In Job 31:35, we have a reference to this fact.

Then, third, contempt of court was forbidden. Exodus 22:28 makes this clear, and in Deuteronomy 17:12, 13, when contempt of court extended to the total denial of the authority of the court it was punishable by death.

Then, fourth, an oath was required before testimony was given. Exodus 22:10, 11 give us this fact, and in Leviticus 6:1-7 we see that the oath was a conditional curse with specified penalties for violation.

The, fifth, and especially important, there were appeals to the highest court possible, which in the days of Moses was Moses himself. In the days of the commonwealth, the judge, who was the supreme ruler; in the days of the monarchy, to the king. Now, this is a point of very great note, one which we must in particular concentrate on.

We fail to understand anything about the nature of the State in the Bible unless we realize that it was primarily a ministry of justice. This is emphasized throughout the Bible, not only in the Law, but also in what St. Paul has to say in Romans 13. He speaks of the civil officers as ministers of God; the ministry of justice, so that God has His ministry of grace (in the Church) and His ministry of justice (in the State). The State, thus, was primarily the ministry of justice. And the most important function of the head of State was as an appeals court. This was the greatness of Solomon.

Our scripture lesson makes clear that God was pleased when Solomon, confronted with a choice of ‘what would you like—I the Lord am ready to bless you,’ he chose neither wealth nor military prowess nor length of days, nor anything else, but ‘give therefore Thy servant an understanding heart to judge Thy people, that I may discern between good and bad. For who is able to judge this, Thy so great a people?’ Now Solomon simply said, to put it into modern language, ‘ I want to be the chief justice of the land, with the utmost wisdom and ability possible, able to discern between good and bad, able to judge and to assess the evidence. Now, this pleased the Lord because this was, of course, the primary function of the chief magistrate of any country, whether a judge or governor or (to use the modern term) president or premier or a king, or whatever he might have been called in antiquity. It was the chief function of the head of state until fairly recent times.

As a matter of fact, we forget, because language obscures it, that the term, ‘The King’s Court,’ and ‘courtier’ originally referred to a court of justice. The King’s Court was the final court of appeals. This was the main function of a king in the Middle Ages. He heard all the cases of appeal. A king in antiquity and until fairly modern times, or a head of state, had two functions: 1) to be the military leader in case of war, which mean that was an occasional function, and 2) to be the chief justice of the land. This was his function. If he failed in this function (as King Richard II did), he was booted out of office. His primary function was to be chief justice, to hear every case of appeal.

And the first case of appeal that was cited with respect to Solomon in the passage immediately following was the case of the two prostitutes, one of whose children had died. This is a very revealing story because it indicates that in ancient times, whether the ruler was a pharaoh or a king or whatever, his function was to hear the case of any and everybody, no matter how insignificant a person, on appeal.

We know why monarchy disappeared, or you should have guessed by now from what I have said. When the king’s court became a center of fashion and Richard II who got booted out of office in England, began to make his court a place for the ladies and for poets and for musicians. It ended his value to the nation. He was useless. And when king’s courts became what we think of as a king’s court, a place for the minuet and for balls rather than a place of justice, monarchy was finished. It had become an expensive toy for the nation. It had no function left. It disappeared.

Other forms took their place. And at this point, we come to a question that is very important to us. According to Biblical Law, the chief justice, the final court of appeals, is the chief magistrate of the land.

Now when the United States was set out, the president was made the chief magistrate. Some years ago, when I was working with a foundation, I spent a great deal of time writing a study of what the early American presidents, through Lincoln to Andrew Johnson felt about their office. The Constitution was a little vague here. It reflected the changing times. The office was not precisely defined. And many scholars will tell you that the office of the Supreme Court was not properly defined and they will add that John Marshall usurped the power of judicial review. This isn’t entirely true, but there is an element of truth to it.

In this study, which some day if there’s interest, I may add to and publish, I found that the presidents through Buchanan, but not Lincoln, and then very definitely Johnson and Hayes (but not Grant), saw the presidential office basically as not an administrative office so much as a kind of chief justice. The power of the veto was construed as constitutional review of legislation. The basic questions they dealt with were questions of what were the Constitutional powers of the Federal government. Thus, prior to Lincoln, every president vetoed every attempt by the Federal government to appropriate money for roads—highway funds. Why? It was unconstitutional. Not that they didn’t like the idea; it was unconstitutional. And they were a judge of these things. This is why also (and you have this in the Constitution), the president has the power of pardon. This is a relic of his judicial function, in that he can issue pardons as the supreme justice of the land, in cases where injustice has prevailed.

Now in ancient times, what about the administrative functions of a king or a pharaoh or someone else? The administrative functions were regarded as basically minor. Who handled them? Why, the slaves or the eunuchs or the women of the harem. This was their function. These were clerical chores, nothing for the chief magistrate to be concerned with, because his duty was justice.

Now we can see what has happened to the United States by tracing the interpretation presidents have put upon their office. From that of chief magistrate, chief judge, whose duty is to see to the fact of justice, and this is why people used to write letters to the president if there was any injustice, and remember Mrs. Bixby’s letter to Lincoln along the same lines? They wrote letters because they regarded him as the main (head) judge of the country. But when presidents began to see their office as administrative, the country began to change. Why? Because when the head of State is the chief justice, his function is justice to the people. When he becomes an administrative officer, it is then to govern the people and to control them, and then power begins to accrue to him; because if he is administrative, then he enhances his office by furthering powers over the people. He becomes a bureaucrat; ruling over a bureaucracy, whose function it is to govern the people. The centrality of administration is a dangerous thing.

Machiavelli saw this. Machiavelli, when he was a civil servant in Florence, tells us of the power he and other underpaid clerks, who had barely enough to live on, exercised over the most powerful men in Florence, including the Medici. How? Well, administration had developed and there were licenses and fees and permits and things that were beginning to be required. And what did he and his fellow civil servants do? They would look and see, here comes Pietro so-and-so, one of the big wheels in Florence, a rich man. He’s got everything I don’t have. I’m going to give it to him! So they would shuffle through the papers and say, well, I’m sorry, your papers are lost. We’ll see what we can do to locate them, but meanwhile there’s nothing you can do about your construction, or nothing you can do about getting your business permit, we’ll work on it. And they would keep the poor man dancing attendance, coming back and forth and begging them to do something to get this matter straightened out. And they would enjoy their power. Machiavelli realized the power that the merest underling can have when administration becomes central. But in the Bible, the basic function of the State is not administration; it is to be a ministry of justice. It has next to no powers of administration—very little.

It is a significant fact, and a commentary on our time, that Solomon, who asked for wisdom to discern justice, is not known to us as a judge, but is known for his harem. It says something about us, and it says something about the Church that they can preach about this passage and not point out the significance of it as far as the office of Solomon was concerned. It was this that built up Solomon’s power and made him famous and made Israel the center of world trade. Why? It was a place where justice was sure.

We know from the records of various archeologists and scholars who’ve dug up all kinds of records that the trade of the world flowed through Israel and it became a center of commerce—commerce from India, commerce from all portions of Europe, including almost certainly Britain and Scotland, and there are one or two scholars who believe that his ships (because there is a record that they made three-year journeys), came to Mexico and Peru and brought silver back to Israel. We know that we’re told that silver became suddenly very common in Solomon’s reign. There was no source of silver in the Old World, enough to make silver that cheap. But Solomon’s justice, his ability as the chief justice of the land, to assure on appeal that justice would be meted out to everyone; slave and master, foreign-born and citizen alike, brought businesses, traders, people from all over the world to Israel to make Israel the center of world commerce and a place of almost unbelievable prosperity. Justice insured this.

The wisdom of Solomon, therefore, was nothing abstract. It was practical, geared to the courts. The Book of Proverbs, we cannot understand unless we see that the proverbs are comments of a judge distilling wisdom in relationship to the courts. This, then, is the central function of the State, to be related essentially to justice.

Another point, a sixth point with respect to the procedure of the court, the arrest could be made on the Sabbath, as Numbers 15:32-36 makes clear, but trials could only be held during other days of the week. This, like other aspects of Biblical Law, has passed into America Law so that in American Law, an offender may not be tried or convicted on Sunday, although he may be arrested, committed, or discharged by a magistrate on a Sunday.

A seventh point with regard to the procedure of Biblical Law was the right to a speedy trial, to justice without delay.

And then finally, according to Biblical Law, the judge was not an impartial referee. He was a partisan champion of God’s Law. He was to be impartial with respect to men, without favor to rich or to poor, to high or to low, but to be partial with respect to God’s Law. It was the duty of judges to bring God’s justice to bear on every situation. In the words of I Chronicles [II Chronicles] 6:23, “…by requiting the wicked, by recompensing his way upon his own head; and by justifying the righteous, by giving him according to his righteousness.” The court, thus, was central to the State in Biblical Law and the head of State was the chief justice of the land, whose basic function was justice, not the manipulation of people.

Let us pray.

Almighty God, our Heavenly Father, we give thanks unto Thee for Thy Law-Word and its clarity. Give us grace, our Father, so to reorder our lives as individuals and as a people, that we may be conformed to Thy Word and may reflect Thy justice in all our ways. We commit unto Thee ourselves and our loved ones, our hopes in Jesus Christ. We pray for one another and for our several needs, remembering especially Earl Stevenson, beseeching Thou would speedily heal him and restore him to his rightful place. Bless us now by Thy grace and mercy and prosper us in Thy service. In Jesus’ name, amen.

Are there any questions now with respect to our lesson first of all?

Yes.

[Audience] {?} … in the trial, involving {?}, an importance regarding the matter of {?} can’t have a fair trial because {?}

[Rushdoony] Yes, ah, this is a kind of a dangerous plea. First of all, we must grant it a measure of truth, in that it is not altogether proper for a paper to pre-judge a case. On the other hand, what we must say is that there is no wrong in publicity given to the facts of the case. They are necessary. As a result, the argument, while there’s a grain of truth in it, is basically dangerous in that it is a step toward star chamber proceedings, toward secret hearings, towards the kind of thing that you find under totalitarianism.

You know, the first step of totalitarianism, as you can see it in France, was, entering the French Revolution, at first they did have the public executions. That would have involved too-great a break with the past. But they had drummers there to roll the drums so that the beat of the drums would prevent the executed person from making a witness before his death, from calling attention to some things that perhaps they didn’t want the public to know. The next step was to take the person into a closed area and to have a secret execution and only allow one or two selected representatives of the press (which is how we have it), and then the final step, to eliminate even those, so that people are executed and you do not even know whether they’re dead.

Now, in the hearings of the trials, it’s easy to call attention to flagrant abuses sometimes by newspapers. But it’s like throwing out the baby with the bathwater, and of course this is exactly what they’re trying to do. The abuses of freedom do not give us a right to say that dictatorship is necessary, you see, in the political sphere, nor the abuses of a free and open trial give us any warrant for ending a public hearing. As it is, the powers of the judge have been so enlarged today that already, trials are to a great extent in many areas a kind of foregone conclusion. The judge is the law, you see. He has arbitrary powers.

Are there any other questions?

Yes.

[Audience] {?}

[Rushdoony] What?

[Audience] {?}

[Rushdoony] Well, you see, we’ve become so used to administration and to permits and to the government controlling us at every turn that we fail to realize that during a good deal of history, and much of our recent history, we didn’t have a bureaucrat breathing down our neck at every turn. In other words, apart from justice, what need to you have of an administrative officer? Very little, basically. But he claims the right to come in and to govern your life more and more. And today, we are perishing of over-government.

For example, in many of the Easter cities today, because of all the restrictions on housing, many areas are left vacant. Block after block, in some of the big cities, of housing, has been abandoned; and business building. Why? They can’t afford to maintain them. They’re good buildings. They were built to last forever—stone buildings, brick buildings, but the city establishes so many regulations that it becomes impossible. You are continually having to conform to a code. Thus, not too long ago, in New York City, some beautiful old mansions were supposedly to be rehabilitated because the city said, well, we’re going to set this up to code and make certain requirements. The cost of bringing them up to the kind of code they required and the standard they required was greater than the cost of the buildings. And yet there were people who maintained that at a very nominal cost, those houses could have been brought up to a very fine and high standard. But all kinds of regulations, long delays, it took years to go through all the agencies—at great expense—to clear the permits to renovate the house.

Now this is the kind of over-government we have today; over-administration at every turn.

[Audience] {?} what do you think about {?J}

[Rushdoony] During the reign of the judges when men did that which was right in their own eyes, it wasn’t that there weren’t judges, it was that there was no proper concept of law—God’s Law. In other words, you had a Humanistic regime in those days. And as a result, there was progressive social anarchy. You cannot have a court that will function, or a civil government that will function if people are basically anarchistic. And this was the problem during the reign of the judges. In those days there was no king in Israel, that is, God was not the king—that’s the meaning of it, not a human king. God was not recognized, therefore, every man did that which was right in his own eyes.

Yes.

[Audience] {?} that the law {?} protect {?}. This was so that {?}

[Rushdoony] Right. Now in ancient times, and until the last 150-200 years, as I’ve pointed out in our previous studies, there was no such thing as a prison sentence. You were only held in ward or in prison pending a trial. Now, the right to a speedy trial meant therefore, that they could not hold you indefinitely. You had the right to demand an immediate hearing. This was an important right, an important aspect of the law.

Yes.

[Audience] {?} of the law, {?}

[Rushdoony] Yes.

[Audience] {?}

[Rushdoony] Yes, we do. Now, as—I’ve gone into this before, but I think it’s worth going into again. First of all, our whole perspective is different from that of the Bible. We regard adultery as something not too bad but polygamy as unspeakable. The Bible regards monogamy as the basic and the God-ordained form of marriage, adultery as punishable by death, and polygamy as a lower form of marriage or family life. It is still a form of family life, but it’s a lower form. It is tolerated but the Bible basically legislates against it to try to eliminate it.

Now, one of the problems in antiquity was precisely the problem we have today in a civil service—it tends to become a bureaucracy, it tends to become dangerous, it becomes unwieldy, who can you trust? Will they work for you or against you? And the Civil Service today in Washington, by the way, is dominated by FDR appointees. Very few people realize this. But the people who were appointed to minor offices under FDR fresh out of college, are today at the top. And the administration is hamstrung by them, basically, because they are died-in-the-wool New Dealers who haven’t changed, in fact have gotten further and further to the Left in their thinking, and they regard the present administration as their enemies.

Now this was a problem in the Middle Ages, too. The popes had a continual fear in that their officials were the cardinals. Well, were the cardinals going to be people who were going to work against them, because after all, Cardinal So-and-so got outvoted and didn’t make pope. And some of them were not above poisoning the pope, because then there would be another election and they might be pope.

On one occasion, a pope visited a very poor monastery and he saw one of the humble monks sitting on the steps having a snack, he’d been out working and it was a bowl of beans. And the pope asked, “Is there enough for me?” and the monk said, “Oh, there’s lots, right here” (was cooking right out on the patio). So the pope sat down and had two bowls-full and when he was through, he said, “This is the first free meal I’ve had since I’ve taken office, because I know there was no point in anybody poisoning that food!” Now, that was the life of the pope. So what did they do? Well, they made their nephews cardinals as fast as they could, because they could trust their nephew. The nephew’s power would last only as long as their uncle was pope, you see. The minute the pope died, they were done for. So the nephews had everything at stake to protect their uncle, to keep him alive. Their jobs and their power depended on it. Finally of course, they cracked down on this after the Borgia Popes went to the point of, ah—the Borgia Pope went to the point of making his children (illegitimate children like Caesar Borgia and others) high officers in the Vatican. At any rate, you see, they had a point there—it had to be someone in their family.

Now, monarchs in ancient times found that the best kind of person they could have to manage their estates, to take care of problems, to deal with foreign traders, to take care of the court, that is, processing the appeals, would be their own wives! So, they married many women who were very often elderly. This was very common. Supposing there was a judge out in Bethel, a very capable man whose wife was also very, very capable. Now she was a widow at the age of 65. It would be a great advantage to marry her and say, ‘ok, now you’re going to process appeals for me,’ and in some kingdoms up until fairly recent times, such a woman would be left right there, you see, as the king’s officer in that area to process different kinds of things.

Now, this would be one type of woman that would be very common in a harem in ancient times. It’s only under Islam that you get the sexual harem as basic. In the ancient world, and in many parts of the world in modern times, it was an administrative thing. In China, too, you had sexual harems.

Now, another type of wife or concubine that would be in the harem would be an expert in foreign trade. Now, we know that Solomon married a princess of Egypt. This was quite a remarkable thing. Historians tell us that only twice in the entire history of Egypt as far as they know was a princess of the royal blood given to a foreign monarch to be his wife. They usually regarded any foreign kingdom as too insignificant to be united with them. But Solomon was so powerful that it was important—very important—to have an alliance with him. So an Egyptian princess was sent. Now, when a princess like that would go, who would go with her? A number of other women, young and old, to be wives and concubines together with the princess. All of these would be trained in some aspect of Egyptian policy. One would be an expert, say, in horse trading. Another would be an expert in the area of wheat trading. So that Solomon would have in his harem, women who were loyal to him after all, he was their husband, and would be loyal to their country and he could depend on them representing his interest and at the same time trying to give their own country a break, you see.

Now this is the kind of thing it was. This was one answer in the long history of mankind to the problem of a civil service.

Now, Byzantium had another answer. The only way you could get into the Civil Service in Byzantium was to be operated on and to become a eunuch. Because then, you would not be feathering your own nest, you see, you didn’t have any heirs to worry about. You couldn’t have children, so you would be dedicated to the monarch. As a result, men thought twice about becoming a civil servant in Byzantium, but it didn’t keep too many of them out of it, because they could gain positions of tremendous power. And some of the greatest generals of Byzantium were eunuchs, very capable all the same.

Now, that was the function in ancient times. But let me add, history has never come up with an answer to the problem of a civil service and administration. Every answer has failed to work. Although, Parkinson, a contemporary English scholar and sociologist, economist, has said the best answer still, is relatives—someone in the family. And he has in one of his books (I forget the title, do you recall it, Dorothy?), perhaps it’s Parkinson’s Law. Yes, Parkinson’s Law. He has stated that certainly in the history of England, it worked a lot better when you had your relatives; they were more responsible, when our relatives were your officials, if you became Prime Minister or headed up some agency. And he said the Civil Service was a step downward when they had to take an examination, and he said even further downward in the caliber of the men that it produces are the psychological tests. So he said we’re really going downhill progressively; and he gives pretty good evidence of this fact.

So, you see, of all the solutions, the one that has come closest to being workable has been the one that Solomon had his version of, and the popes had their version of and the English, for a time, had their version of. And when Andrew Jackson worked out the Spoils System—to the victor belongs the spoils—it was in a sense, a demand for the same kind of thing. On a very crude level, that he was rejecting the idea of an entrenched bureaucracy.

Well, our time is just about up, but I’d like to share one thing more with you. In the July 8 Review of the News, the feature article, “Should Americans Return to Private Education?” the real title is, “How to Stop Heir Pollution,” h-e-i-r, by Reed Benson and Robert Lee. And the article is about a school that I told you about in the past, Fairfax Christian School, in Fairfax, VA, the Rev. Robert Thoburn, whom some of you have met. It’s well worth getting, or ordering reprints of to pass around because Bob Thoburn has demonstrated that a Christian school can be the very finest in caliber, superior to any and every public school, and also make a profit—a very handsome profit. Bob Thoburn will be in California this week, speaking in Northern California for Chalcedon on the subject. I’m sorry he can’t be down here this trip, but perhaps sometime in the future it will be possible again.

Let us bow our heads now for the benediction.

And now, go in peace. God the Father, God the Son and God the Holy Ghost bless you and keep you, guide and protect you, this day and always. Amen.