[You shall appoint judges and officers for yourself in all your gates.
After the first commandment of faith in God has been interpreted, with which both the internal and the external worship has been taught, Moses now comes to the second commandment, namely the commandment of love. But he lets precede this a treatise about persons in authority, about the right of the sword and the judicial procedure in external things, and that in a correct and beautiful order. For (as we have said above [Cap. 1, 9-12.]) if there be not men to administer and execute the laws, to wield and use the sword, all legislation, however sacred, is in vain, since the sword is the power and efficacy and very (ipsa) life of the law, which keeps the wicked in check and protects the good. Here, then, we are taught in a brief epitome that where a law is given, the sword must also be instituted at the same time, so that the law teaches what one must do and refrain from doing, but the sword executes it and punishes those who do something [forbidden] or refrain from doing [something that is commanded],
by forcibly compelling the wicked to do and not to do. For without the sword, the law is useless and only a cause to increase evil deeds. Again, the sword without the law is a tyranny and an animalistic rage. But both, namely the law and the sword, connected with each other, is a beautiful and firm order (politia).
From this chapter you will learn at the same time that public crimes are not to be punished by the great crowd or any private person, but by the public sword of the authorities. For here you see that God Himself has appointed judges and officials to administer His own law, and He adds some cases which (as they say) belong before the bar (in terminis), by which He describes the judicial procedure to be observed in punishing wrongdoers, so that no one is wronged, namely, that the matter be carefully investigated, certainly recognized, and referred by witnesses, and thus punished according to the law. This I say against these new prophets of ours, the iconoclasts, who, since they fell from heaven the other day
are contemptuous of all authority, and stir up the mob against those who wield the sword from divine power, and usurp the sword, and rage without judgment, without witnesses, and without all form of right.
This is why he commands in this chapter that the matters are to be brought before the judges and proven with witnesses; likewise, how a king should be constituted. Thus he commands in Exodus 22:1, 9 that the matters should be brought before the gods (that is, before the judges), and that they should be decided and settled there either by a settlement or by a judgment. So elsewhere [Deut. 21, 20. f.] he teaches parents that they should accuse their rebellious sons themselves before the judges, and that they should then be stoned to death, and it is commanded [Deut. 22, 13. ff.] that if a harlot has not been found a virgin by her bridegroom, she should likewise be brought before the court, so that you can see everywhere that by divine power the sword and the public court are used to punish the crimes. By this is answered those angry prophets, since they insist on this word of God, in which he addresses the people in the second person, saying: You shall stone, you shall kill, so or so you shall do, you shall put away the wicked from you 2c. For those boast that by this word the right of the sword is given to the mob without distinction, while he speaks this to the people, who were provided and ordered with lawful authority and advisory (praesidentibus) priests.
Therefore he does not speak of the highest authorities, as there are the principes, priests and heads of the people, who were already given to the people by divine power of Moses, as Aaron, Joshua, the twelve princes [Num. 34, 18] and the seventy elders [Num. 11, 16], but of the judges and officials, which he does not appoint himself, but orders the people, which was already ordered, to appoint. For the judges are actually there for the legal affairs, although in the course of events this office sometimes again to the chiefs and priests.
. 1) In the editions: Lx. 23.
ster came, as the book of Judges and [the books of] Samuelis say of the judges. The officials, however, are actually the executors of the law and the sword, as with us the executioners, the bailiffs and the professors; formerly the most respected and best people were chosen for this, but now only some quite despised and lowly person administers this office.
For if it is honorable for a judge to condemn and condemn the guilty by word, how can it be dishonorable to kill him (percutere) and execute the judge's word by deed? If it is dishonorable to kill an ungodly man with the sword, it would be even more dishonorable to condemn him by the court as such and to hand him over to the sword, since the executioner (praefectus) would not judge if the judge did not command it. For we read that Solomon [1 Kings 2:25 ff] gave this office to the very respected man Benaiah, 2) the son of Jehoiada, when he commanded to kill Shimei and Adonijah and Joab; and Saul charged his Doeg [1 Sam 22:18] to kill the priests, and David his men [2 Sam 1:15] to kill him who had killed Saul. But also among the Romans this office was given to great and honored men, no less than the office of a judge.
For these two persons, the judge and the bailiff, the administration of the sword requires and has them vonnöthen-. And in the Hebrew, by a beautiful allusion (allusione) XXXXX and XXXX are made similar. I translated it, because I had nothing else, not even exactly, by "judges and officials". By XXXXX or officials Moses wants to understand those who are the servants of the judge, the executors [of the death penalty], the executors [of the judgments] and public administrators, therefore also our Latin text sometimes translates them by praecones [court servants], and 2 Mos. 1, 11. makes "Frohnvögte" (exactores) and Werkmeister (praefectos operum) out of it. Christ calls the same bad-
2) Thus the Wittenberg and the Jena editions. Instead of: Lanuias, Mio 3oMlao the Erlanger offers: 3oju<tu nuia.
away a "servant", Matth. 5, 25: "Lest the judge deliver thee to the servant" 2c.
But he prescribes the rule for these judges and officials that they should judge justly, that is, according to the law of God, not according to their own sense. After that he forbids crooked ways (affectus), that they do not leave the law and let themselves be guided and moved by the reputation of the person and gifts. For these two pieces tend to pervert and bend all judgments, hence he also inserts a motto (gnomen) here, saying, "Gifts blind the wise and pervert the things of the righteous." The "reputation of the person" comprehends in itself the fear of the great, the powerful, and the rich, the love of relatives, the favor of friends, the contempt of the lowly, the pity against the unfortunate, one's own danger of life, good name, and all things. The "gifts" however comprehend in themselves the profit, the advantage, the hope and the whole insatiable and immeasurable maw of avarice. Therefore, Jethro advises Moses in Exodus 18:21 to choose men who are without avarice, that is, those rare birds that are very similar to a black swan.
So you see what kind of mind he must have who is to exercise the office of a judge and the sword, namely he must overcome all emotions, fear, love, favor, mercy, avarice, hope, good reputation, life and death, and must love the simplest truth and the right judgment, because (so says Jehoshaphat, the king of Judah [2 Chron. 19, 6.]) judgment is of the Lord. For a judge inevitably incurs the hatred of many people, he must be endangered by enmity (odio) and challenged by mercy and greed, and if he does not look to God alone, he cannot overcome these impulses and stand against them. But how will he be able to look to God alone if his heart is not securely fastened by faith?
See the example of the best jurists, who speak of equity very beautifully when they teach or write publicly, but think quite differently when they teach or write to individual per
They have to give advice to others (privatim) and get into contradiction with themselves, namely, that here the reputation of the person or pity for the misfortune (to put it in the best way) turns them away from the right path, so that they make an effort to heal, as it were, and to help the helpless, which they did not do at the time when they taught publicly. And so, from passionate excitement (affectu), they do not see that they are deviating from the equity they taught publicly. There is something so difficult, rare and high about a simple and correct eye in a judge.
The same can be seen in the greatest theologians, as there are Augustine, Bernard, and in those who are older than these, Cyprian, Tertullian, and the like, who, when they treat the Scriptures publicly, interpret them purely and correctly; but when questions are put to them, they seldom stay on the right track, that they should not take something from the Scriptures and attach it to the thing or the person, and twist the words of God by force. Look at them here, where they write against Arius, Jerome against Jovinianus, Augustine against the Manichaeans, Bernard against free will, and you will see that I speak the truth. None of the saints have so completely stripped themselves of the flesh or laid aside their emotions that there is no hope left, unless both the judge and the teacher act in the fear of God and always suspect themselves of not acting rightly according to the law of God and his words. For security must not be allowed in these matters, where God's cause is being acted upon, which is exceedingly serious.
[Cap. 16, 21. 22.] You shall not plant a grove of trees 2c.
Why then does Moses include this about the outward service of God, since he had already begun to speak about the works against the neighbor? I answer: This he seems to do in the way of a repetition, that he also subjects to the punishment of the sword in this legal people, where something should be sinned against the outward service of God. This is proven by the fact that he says nothing about faith or fear.
but of the work of erecting a pillar, planting a grove or a tree by the altar of the Lord, and offering a sacrifice that has a defect [Cap. 17, l.sf. By these two pieces he shows, as by example, all sin in the outward service of God. Then he also adds an example, that a man and a woman are to be stoned, who have been convicted of having committed idolatry. By this example, he certainly applies the sword, which is already in place, to the sin that has been committed against the outward service of God, and commits it to the judge and the servant for punishment. For he reserves to himself to punish what is sinned in the heart through unbelief, as he says Cap, 18, 19. of the future prophet.
See, then, that here the public trial (forum judicii) is instituted by God and an example of it is given. The first is when an evil happens before the eyes of the Lord [Cap. 17, 2. ff.]. But the evil in the eyes of the Lord, he explains, happens when someone transgresses the covenant of God by going and serving other gods, which God has not commanded. For he speaks (as I have said) of sin in the outward service of God, in order to show by example how in all crimes the sword should be wielded and justice executed. But he says with a significant word "wickedness in the eyes of the Lord", because there is nothing more beautiful, better and holier in the eyes of men than idolatry and godlessness, which is adorned by hypocrisy and the appearance of godliness. It is therefore an evil work in the sight of God, which is done without faith and word on our own initiative, no matter how well and excellently adorned (speciosum) it may appear. For this is his opinion (vult), since he says that they transgress his covenant and do what he has not commanded, so that you can know for certain that if anyone does something in the service of God that he has not commanded, it is evil in the sight of God, as he clearly says here, because it is necessarily done in confidence, as if they were doing something that is pleasing to God,
and that they would be justified by it; otherwise they would not do what is completely against faith, against his covenant and his word.
Second. It is not enough that an evil work has been done, but it must also be announced and made known by rumor or tale, as he says here [v. 4.], "And it shall be announced unto thee." Thirdly. Even this is not enough, but it must be carefully investigated whether it is as it is reported, so that one does not freely believe any boaster. But this investigation cannot be other than by witnesses who have seen and know, so that one witness is not enough, but "on the mouth of two or three witnesses (he says v. 6) shall all things stand". And he adds, "Upon the mouth of one witness shall no man die." Fourthly. Finally, those who are convicted are to be led out and stoned. Thus you see that in the public court and in the infliction of public punishment, the crimes are to be as public as the punishment is.
From this example you can learn how many offenses are to be borne and concealed, which either you alone, or others with you know, or which the rumor has spread everywhere. At the same time, you will see how carefully God has shut the mouths of braggarts and slanderers, and the ears of those who listen to them, so that the strictness of divine law does not only protect the truly innocent, but also the guilty, as long as they are still hidden. But I call them hidden because they have not been reported to the authorities and the judge as those who should be convicted with proper witnesses. And here it is evident how diabolical a den the world is, where the good name of one's neighbor is so easily violated, and offenses that are either lied about, or are picked up by rumor and suspicion alone, are carried on publicly, so that the law of God has commanded in another place that those who accuse others of offenses that they cannot prove shall be punished no less severely. Therefore, if you alone see someone sinning, keep silent; if you hear of it, keep to yourself until the matter can be proven to the judge with certain witnesses.
Moses preferred to take the example of judgment from an offense in the service of God rather than from murder or adultery or any other crime, because this example is certain and reliable and may not be forgiven or covered up by any mercy. For to sin against the service of God is to sin against faith and the Word. Here one should have no regard for love or mercy, for by doing so one offends and loses God along with the Word, which is the guide, the light, the teaching, and the rule of the whole life and of all works; if this is lost, no work can be [rightly] done, no life [rightly] ordered. But sin against love, if only the word and doctrine remain untouched, is only a lost work, which can be restored and made good according to the rule of the word. So immeasurable is the distance between the sin against faith and the word, and the sin against love and the work. For love bears all things, endures all things [1 Cor. 13:7], but faith bears nothing, and the word endures nothing, but the word must be perfectly pure, the doctrine must always be perfectly sound, so that it may be the goal for life and for the right direction of works. Love, however, can be weak and impure, and must be increased and perfected daily. Therefore Moses, the most gentle man on earth, nevertheless killed without mercy three thousand men who had worshiped the calf, Ex. 32,1 ) 28, because they had sinned against the word, the light and guide of life.
V. 8-13. If a matter in court will be too hard for you 2c.
This text, too, the papists have dragged on their idol with whimsical effort in order to confirm the papacy, therefore it is necessary that we consider it a little more carefully. In the first place, Moses is not speaking here of words or doctrine, or (as they say) of the questions of faith which they want to be brought to the pope's attention, but of the judgment of public and worldly opinion.
1) In the issues: Lxoäi 34.
The words clearly indicate that this crime is of a doubtful nature "between blood and blood" (i.e., death), "between trade and commerce" (i.e., theft, robbery, quarrels, and malicious words), "between harm and harm" (i.e., beating, wounds, or other violent injury to the body), where Jerome, following his dreams, translates it as "between leprosy and leprosy," thus giving our papists reason to believe that it is "my" crime, wounds, or other violent injury to the body), where Jerome, following his dreams, translated "between leprosy and leprosy," by which he gave occasion to our papists to think that Moses was also speaking of the sacred mysteries of the faith, not merely of worldly things. Now that the pope is to be a servant of the spirit and not of the letter, and is to leave these worldly matters aside, this law does not concern him at all, nor does any other law of Moses; or if it did concern anyone, it would rather concern the emperor or a king or a prince, so that, according to the example of this law, the subordinates should get the judgment from the court of the overlord in doubtful matters.
Then this law speaks of the place that God chose, namely where the tabernacle was, the outward sign of the present God. But in the New Testament there is no such place. For [John 4:21] "neither in this mountain, nor in Jerusalem," but [v. 23] "in spirit and in truth" is GOD worshipped; neither will they say [Matt. 24:23], "Behold, here is Christ, or there," for this was proper to the ancient and legal people. Therefore, the papists should first prove that Rome is the place chosen by God. When will they do that? Where is the Word? Where is the sign? There is one place that is common to all Christians, that is the spirit and the truth. This is how Christ himself explains it; in spirit and truth (he says) God is worshipped and adored. And it is in the place that the questions about faith must be resolved. In this place the pope is no more than the maid in a mill, and his decision is no more valid in this place than that of a farmer who is in the field. For faith belongs to all, and the spiritual man judges all. Now if in any place there should be more perfect Christians, of course the imperfect ones must give way to them, not for the sake of the place, but because of the perfection of the spirit, as in
In the book of Acts [Cap. 15, 2.] those of Antioch asked for a judgment from the apostles and elders, not because of the place, as if God had chosen it, since many elders there did not have the right opinion either, Acts 15, 5. 15, 5, and the apostles did not remain there as in a permanent place, but for the sake of the more perfect spirit of the apostles.
And, provided that all this should prove nothing, and that this law of Moses should be understood by the questions concerning faith and by Rome (which is impossible), he nevertheless disgraces all their precepts with one word, since he says here [v. 11]: "According to the law which they teach you," namely, because he wanted that even these priests of works and of the law should not rely on their own spirit and make a judgment according to it, but that they should teach everything according to the law which he had prescribed. How much more, therefore, must the priests of faith and of the Gospel decide and teach everything not from their own spirit, but according to the certain word of God! But neither the pope nor the concilia have ever done this, nor do they do it now, but they decide everything out of the fullness of their presumptuous spirit. But they usually decide nothing but exceedingly foolish things, as of ceremonies, benefices, dignities and similar foolish works.
Moses therefore laid down this law for the judges and servants of whom he speaks in this chapter, that the small towns should turn to the capital in doubtful matters, and the more inexperienced to the more perfect, since it was certain that God would also direct matters there, and that there would always be such priests there who knew the law of God, which God had not granted to any other place. For it was a civil nation, therefore He also provided it with a civil place and a bodily priesthood, in which the Spirit should certainly abide, just as He certainly provided us with Christ in the faith of His flesh 1) at His right hand, that is, as the One who is everywhere present and fulfills all things [Eph. 1, 23]. Therefore it comes that the Lord answered from the mercy seat through
1) Wittenberger: proviäst instead of: proviäit.
the light, that is, by the office sign (rationale [Ex. 28, 15.]) or of the priest, as Saul complains 1 Sam. 28,2 ) 6. that GOD did not give him an answer, neither by the prophets nor by the light.
V. 14. ff. I will set a king over me.
As he had begun with the sovereign persons, he ends this treatise also with regard to the kings and the kingdom by saying: For this shall come to pass, that the children of Israel shall have kings. This was formerly promised to Abraham and Isaac, when the Lord said Gen. 17, 6: "Kings shall come from you" 2c. Moses therefore anticipates that they will not choose or appoint a king according to their own will and without the word of God, but that they may be sure that they have a king by the grace and will of God, he wants them to be led by the power of God and by his word, which is something very special above all the nations of the earth. For although he changes and establishes all kingdoms, and gives them to whom he wills, yet for this people in particular he adds a word in which he indicates his favor to them, so that they may know that they have the kingdom of GOD. Therefore they are punished in the [first] book of Samueli for having sinned grievously, that they desired a king in such a way that they would put their trust in him as in a man and a human kingdom, and did not desire a king in God and according to his word, as he says there [Cap. 8, 7.]: "They have rejected me, that I should not be king over them."
After that, so that the king himself might be a godly one, Moses instructs him that he should rule in trust in God alone, knowing that he alone is appointed by his word and must be sustained by it. Therefore, he commands that he should not keep many horses, that is, that he should not trust in his force (viribus); that he should not lead the people back to Egypt, that is, that he should not rely on the favor and strength of men; that he should not gather much gold and silver,
2) In the issues: 1 lisA. psnutt.
That is, that he should not trust in riches; that he should not take many wives; that is, that his faith should not be choked with thorns, as Christ calls the cares and pleasures of this life, Luc. 8:14. For this is not his will, that he should not be well provided with horses and troops, since it is read [1 Kings. 4, 26.] that David and Solomon did the opposite; so he also does not forbid alliances and assistance from men, since Solomon had the king of Tyre and Egypt [1 Kings 5, 12.], David the kings of the Moabites and the Ammonites and the king Thoi [2 Sam. 8, 9. ff.] as confederates. It is also written [1 Kings 10:23] that Solomon had such a large amount of gold and silver, which was left to him partly by David and partly by himself, that no other king had. So also many kings had very many wives.
But therein lies the power of the commandment, that (as he says in the text) his heart is not turned away, that is, that he does not gather and procure all this for himself in order to put his trust in it. For he wants to have, as a believing people, so also a believing king, who trusts only in God and his word, therefore he takes away everything in which the people put their trust. If they did not rely on it, but used it only in faith in GOD, satisfied with His word alone, then there would be no harm, as the best, the richest and most powerful of all kings boasts, saying [Ps. 44:7]: "I do not rely on my bow, and my sword cannot help me," and again [Ps. 60:14]: "With GOD we will do deeds. He will subdue my enemies," and again [Ps. 108:11, 13], "Who will lead me to a strong city? Give us help in trouble, for the help of men is of no avail," and many such things. He does not say that he has no bow, no sword and no men, but he says that he does not trust in them.
Therefore, here Moses commands that the king read the other law (Deuteronomy) so that he may learn to fear God at all times, namely, he commands him the word of faith, which, as we have seen, he presents in this book exceedingly abundantly, so that his
Let him not exalt his heart above his brethren by the abundance that comes to him, and let him not be presumptuous of his strength or riches, but let him fear the Lord, who has no pleasure in anyone's legs or in the strength of his steed [Ps. 147:10]. Again, he should not be despondent when everything is in despair and the enemies have the upper hand, that is, as he says here, he should neither turn to the left nor to the right [v. 20], but walk rightly and firmly in fortune and misfortune, in strength and weakness, in honor and disgrace, clinging faithfully and strongly to God's word alone.
The secret interpretation of the judge and the servant is the office of the law, which by its judgment condemns the ungodly. Death, the servant of the law, kills, as Paul says [1 Cor. 15:56]: "The power of sin is the law, but the sting of death is sin." The judge is righteous (integrity) and must be unbending, for the law is holy, the commandment is good, righteous and holy, and yet it is an office of death, instituted that it might kill, that it might inflict wrath, for no law is given to the righteous, just as the civil sword is not to be feared for good works, but for evil, Rom. 13:3. That gifts are taken and persons are regarded is that the office of the law is misused to establish the righteousness of works and the glory of the flesh, but not for the knowledge of sin. For this righteousness of works blinds even the wise and righteous, and deceives by its appearance and confidence, so that by this proverb [v. 19] we are taught how dangerous the law is, when it is taught to do works.
Soon after he spoke about the judges, he forbade to set up a grove and trees and pillars at the altar of the Lord, that is, not to set up righteousness and the glory of works, which God hates. Neither shall one opsern anything that has a defect, that is, his law shall not be fulfilled with works. For this means to defile the law and the intention of the law, which is to make all men guilty and to bring them to the knowledge of their sin, Rom. 7, 7. Yes, those shall be put to death without grace (rigidissime) who believe in God.
That is, through the right understanding and knowledge of the Law, the service (cultus) and the performance (studium) of works are to be condemned, by which one believes to serve God, while in truth an idol of our heart, a false delusion of God, is worshipped, who, as the Law teaches, is honored by the faith of the heart alone. That they should be convicted by witnesses means that they should be overcome by the testimony of Scripture, as Paul teaches in the letter to Titus [Cap. 1, 9.] that a bishop should be mighty in sound doctrine, that he might convict the gainsayers. Furthermore, those who do not want to abide by the judgment of the more perfect in spirit, who judge according to the law of God, as he says here, are to be killed and taken out of the remedy, that is, a heretical person is to be shunned and put under ban, and held as a pagan.
The appointment of a king actually means Christ, who comes after the judge, the law. He did not become king in his people by our election, but by God's appointment; he was also not taken from a foreign people, because he did not take the
angels, but the seed of Abraham, even as we are made flesh, and became our brother, as though he were one of us [Heb. 2:16, 17]. And he did not exalt himself above his brethren, for though he was in the form of God, yet he humbled himself, and took upon him the form of a servant [Phil. 2:6 ff]. Therefore, although he has an abundance of many horses and great riches and the multitude of the people, that is, of all the fullness of spiritual wealth and spiritual powers, for in him are hidden all the treasures of wisdom and knowledge [Col. 2:3]; then also of the gold and silver of wisdom and eloquence in the Scriptures; and has many wives, that is, is great and glorious through many different churches, yet he does not trust in them, does not boast of them, but only of his God. For he is the righteous ruler among men in the fear of GOD, as David says in his last words f2 Sam. 23, 3.]. He treats this other law (Deuteronomion hoc) not only according to the letter, but also constantly according to the spirit, and has a kingdom that lives in the fear of God, which the judges and the law of death have not been able to do.