Samuel Rutherford was a Scottish Presbyterian member of the Westminster Assembly, which was an assembly of Scottish and English ministers gathered together as an agreement between the two countries called the Solemn League and Covenant, wherein Scotland promised the English parliament military support against the royalists in exchange for England’s promise to defend the true religion. The confession was written in the context of a civil war. Rutherford wrote Lex, Rex in 1644 during the time of the assembly. The full title is “LEX, REX: The Law and the Prince. A Dispute for the just PREROGATIVE of KING and PEOPLE. Containing the Reasons and Causes of the most necessary Defensive Wars of the Kingdom of SCOTLAND, and of their Expedition for the ayd and help of their dear brethren of ENGLAND.” You can find the full text here. You can also find a summary outline here. Page references in this post refer to the Kindle edition.
Lex, Rex serves (at least) two interesting purposes. First, it helps us understand the meaning of WCF 23.1, which says “God, the supreme Lord and King of all the world, has ordained civil magistrates, to be, under Him, over the people, for His own glory, and the public good: and, to this end, has armed them with the power of the sword, for the defence and encouragement of them that are good, and for the punishment of evil doers.” as well as 23.3 “Civil magistrates being set up by God for the ends aforesaid; subjection, in all lawful things commanded by them, ought to be yielded by us in the Lord, not only for wrath, but for conscience sake; and we ought to make supplications and prayers for kings and all that are in authority, that under them we may live a quiet and peaceable life, in all godliness and honesty.” Many present-day reformed Christians (here is a good example) often argue that the American Revolution and the concepts of the Declaration of Independence and the Constitution of the United States based on a social compact theory of government are unbiblical and contrary to WCF/LBCF. The problem is that they have skipped over Rutherford (and others), whose views are very much related to America and obviously the confession(s).
Second, Lex, Rex is helpful in that it unpacks the logical implications of Romans 13:1-6. Many today have not adequately thought through the passage. They tend to read it as giving absolute authority to the civil government (whoever providentially happens to have the most power) wherein we must submit to everything it says to do, unless it commands us to sin. Rutherford very forcefully demonstrates that any authority given by God to a civil magistrate is necessarily limited and conditional.
Lex, Rex was written against the “royalists” who argued that monarchs had an absolute divine right that may not be resisted. They argued that monarchy was immediately from God and could be justly established by conquest, by divine unction (prophecy), or by birth (hereditary) and that once established may not be resisted. If the monarch becomes a tyrant, all that the people may do is suffer patiently and pray to God for deliverance. This is actually the way many modern reformed Christians tend to read Romans 13 – they just skip over the monarch part and rest satisfied with their present democratic context instead.
Rutherford, following the reformed tradition, argued that the “root power” (office) of civil government is established immediately by God (Romans 13:1-4), but the particular person who wields that power is established mediately by God through the people by means of election and mutual agreement with the ruler (a constitution – see Beza). “It cannot be said but God giveth the kingly power immediately; and by him kings reign, that is true. The office is immediately from God, but the question now is, What is that which formally applieth the office and royal power to this person rather than to the other five as meet? Nothing can here be dreamed of but God’s inclining the hearts of the states to choose this man and not that man.” (9)
No Divine Unction
A ruler cannot be appointed by divine unction because “There is no prophetical and immediate calling to kingdoms now.” (8-9) Furthermore, even in Israel God’s anointing of an individual to be king did not make him king.
“If the Lord’s immediate designation of David, and his anointing by the divine authority of Samuel, had been that which alone, without the election of the people, made David formally king of Israel, then there were two kings in Israel at one time… Saul, after Samuel from the Lord anointed him, remained a private man, and no king, till the people made him king, and elected him ; and David, anointed by that same divine authority, remained formally a subject, and not a king, till all Israel made him king at Hebron; and Solomon, though by God designed and ordained to be king, yet was never king until the people made him so, (1 Kings i.); therefore there floweth something from the power of the people, by which he who is no king now becometh a king formally, and by God’s lawful call; whereas before the man was no king, but, as touching all royal power, a mere private man” (9).
Conquest is Robbery
Rutherford, following a long line of men going back at least as far as Augustine, argues that a civil government cannot be established by conquest because conquest is theft. “Conquest without the consent of the people is but royal robbery” (8). “The Prelate averreth confidently (c. 17, p. 58) that a title to a kingdom by conquest, without the consent of a people, is so just and evident by Scripture, that it cannot be denied; but the man bringeth no Scripture to prove it. Mr Marshall saith, (Let. p. 7,) a conquered kingdom is but continuata injuria, a continued robbery.” (46) “If the act of conquering be violent and unjust, it is no manifestation of God’s regulating and approving will, and can no more prove a just title to a crown, because it is an act of divine providence, than Pilate and Herod’s crucifying of the Lord of glory, which was an act of divine providence, flowing from the will and decree of divine providence, (Acts ii. 23 ; iv. 28,) is a manifestation that it was God’s approving will, that they should kill Jesus Christ.” (47) This distinction between God’s preceptive will and his will of decree is crucial and will be unpacked further.
“Mere conquest by the sword, without the consent of the people, is no just title to the crown… It is not to be thought that that is God’s just title to a crown which hath nothing in it of the essence of a king, but a violent and bloody purchase, which is in its prevalency in an oppressing Nimrod, and the crudest tyrant that is hath nothing-essential to that which constituteth a king; for it hath nothing of heroic and royal wisdom and gifts to govern, and nothing of God’s approving and regulating will, which must be manifested to any who would be a king, but by the contrary, cruelty hath rather baseness and witless fury, and a plain reluctancy with God’s revealed will, which forbiddeth murder. God’s law should say, ‘Murder thou, and prosper and reign;’ and by the act of violating the sixth commandment, God should declare his approving will, to wit, his lawful call to a throne.” (47)
God’s revealed will, not His secret providence, is our rule. “I grant, often God’s decree revealed by the event, that a conqueror be on the throne, but this will is not our rule, and the people are to swear no oath of allegiance contrary to God’s Voluntas signi, which is his revealed will in his word regulating us.” (40)
The royalists argued that a monarch may be born a ruler over the people. Rutherford argued that all men are born equal, with none possessing natural civil authority over the other. “If all men be born equally free, as I hope to prove, there is no reason in nature why one man should be king and lord over another… I conceive all jurisdiction of man over man to be as it were artificial and positive, and that it inferreth some servitude whereof nature from the womb hath freed us.” (2) And “Every man by nature is a freeman born, that is, by nature no man cometh out of the womb under any civil subjection to king, prince, or judge, to master, captain, conqueror, teacher, &c.” (51)
The succession of kings by birth was only ever an exceptional mercy of God given to David, not an established norm. “Not by any promise of a divine covenant that the Lord maketh to the father, as he promised that David’s seed should sit on his throne till the Messiah should come. This, as I conceive, is vanished with the commonwealth of the Jews.” (43)
Rutherford also points out the contradiction in affirming that the just title to ruler can be obtained by birth or by conquest. “If birth be God’s regulating will, that the heir of the king is in God’s court a king, no act of the conqueror can annul that word of God to us, and the people may not lawfully, though they were ten times subdued, swear homage and allegiance to a conqueror against the due right of birth, which by royalists’ doctrine revealeth to us the plain contradictory will of God.” (40)
“Now there be but these to regulate the people, or to be a rule to any man to ascend lawfully, in foro Dei, in God’s court to the throne. (1.) God’s immediate designation of a man by prophetical and divinely-inspired unction, as Samuel anointed Saul and David; this we are not to expect now, nor can royalists say it. (2.) Conquest, seeing it is an act of violence, and God’s revenging justice for the sins of a people, cannot give in God’s court such a just title to the throne as the people are to submit their consciences unto, except God reveal his regulating will by some immediate voice from heaven, as he commanded Judah to submit to Nebuchadnezzar as to their king by the mouth of Jeremiah. Now this is not a rule to us; for then, if the Spanish king should invade this land… it should be unlawful to resist him, after he had once conquered the land: neither God’s word, nor the law of nature could permit this… (3) Naked birth cannot be this external signification of God’s regulating will to warrant the conscience of any to ascend to the throne, for the authors of this opinion make royal birth equivalent to divine unction; for David anointed by Samuel, and so anointed by God, is not king,— Saul remained the Lord’s anointed many years, not David, although anointed by God; [until the people consented to make them king]” (41)
Origin of Government by Rulers
If neither prophecy, nor conquest, nor birth establish a ruler, then where does civil government come from? Rutherford argued that no individual has the “politic power of government,” but when individuals gather together into a society, such power automatically follows, being rooted in the natural law of self-preservation. When people come together in a society, they appoint a ruler over them as a matter of self-defense. “We defend ourselves by devolving our power over in the hands of one or more rulers.” (2) Rutherford distinguishes between individual self-defense, which is purely natural law, and self-defense through an appointed ruler, which is positive law (derived from natural law) because mediated through man. “We are to distinguish betwixt a power of government, and a power of government by magistracy. That we defend ourselves from violence by violence is a consequent of unbroken and sinless nature; but that we defend ourselves by devolving our power over in the hands of one or more rulers seemeth rather positively moral than natural” (2-3).
The royalists objected to this argument by pointing out that “it is not natural to us to be subject to government, but against nature for us to resign our liberty to a king, or any ruler or rulers” (2). Rutherford sought to evade this point by employing the distinction between something that is known by natural instinct (Aquinas’ “self-evident principles” also known as the primary precepts of natural law, such as “life is to be preserved”) and something that is deduced from self-evident principles through the process of practical reasoning (secondary law of nature).
“[I]t is most true no man, by the instinct of nature, giveth consent to penal laws as penal… but here reason in cold blood, not a natural disposition, is the nearest prevalent cause and disposer of the business. When, therefore, a community, by the instinct and guidance of nature, incline to government, and to defend themselves from violence [self-defense], they do not, by that instinct, formally agree to government by magistrates… this consent proceedeth not from a disposition every way purely natural. I grant reason may be necessitated to assent to the conclusion, being, as it were, forced by the prevalent power of the evidence of an insuperable and invincible light in the premises, yet, from natural affections, there resulteth an act of self-love for self-preservation [which makes men reluctant to give up their rights]… government, even by rulers, hath its ground in a secondary law of nature, which lawyers call secundario jus naturale, or jus gentium secundarium, a secondary law of nature, which is granted by Plato, and denied by none of sound judgment in a sound sense, and that is this, Licet vim virepellere, It is lawful to repel violence by violence; and this is a special act of the magistrate.” (2-3)
Thus Rutherford believes that self-defense is a secondary law of nature, deduced from the primary law to preserve life, and government by rulers is a positive law grounded in this secondary law of nature.
“But there is no reason why we may not defend by good reasons that political societies, rulers, cities, and incorporations, have their rise, and spring from the secondary law of nature. 1st, Because… By what reason a family hath a power of government, and of punishing malefactors, that same power must be in a society of men… If we once lay the supposition, that God hath immediately by the law of nature appointed there should be a government, and mediately defined by the dictate of natural light in a community, that there shall be one or many rulers to govern a community, then the Scripture’s arguments may well be drawn out of the school of nature: as, (1.) The powers that be, are of God (Rom. xii.), therefore nature’s light teacheth that we should be subject to these powers. (2.) It is against nature’s light to resist the ordinance of God. (3.) Not to fear him to whom God hath committed the sword for the terror of evil-doers. (4.) Not to honour the public rewarder of well-doing. (5.) Not to pay tribute to him for his work. Therefore I see not but Govarruvias, 1 Soto, 2 and Suarez, 3 have rightly said, that power of government is immediately from God, and this or that definite power is mediately from God, proceeding from God by the mediation of the consent of a community, which resigneth their power to one or more rulers” (3).
When men in a society face the threat of violence (from within and without) they think through their options and conclude that the only way to preserve their lives and their society is to appoint a ruler over them to wield the sword for defense and punishment. This is a necessary logical deduction that inevitably follows from the “invincible light of the premises.” Since God instilled in man’s nature a desire for self-preservation, and natural law is whatever is conducive towards man’s good (self-preservation), God has ordained the office of civil magistrate and man must therefore appoint people to it in every society and be subject to it.
“1st. That a republic appoint rulers to govern them is not an indifferent, but a moral action, because to set no rulers over themselves I conceive were a breach of the fifth commandment, which commandeth government to be one or other. 2d, It is not in men’s free will that they have government or no government, because it is not in their free will to obey or not to obey the acts of the court of nature, which is God’s court; and this court enacteth that societies suffer not mankind to perish, which must necessarily follow if they appoint no government;” (5)
“So a community of itself, because of sin, is a naked society that can but destroy itself, and every one eat the flesh of his brother, therefore God hath appointed a king or governor, who shall take care of that community, rule them in peace, and save all from reciprocation of mutual acts of violence, yet so as, because a trust is put on the ruler of a community which is not his heritage, he cannot dispose of it as he pleaseth, because he is not the proper owner of the inheritance.” (69)
“[P]rivate men are just lords and proprietors of their own goods… to conserve every man’s goods to the just owner, and to preserve a community from the violence of rapine and theft, a magistrate and king was devised.” (67)
“[W]ithout [a king] in a kingdom justice is physically impossible; and anarchy, and violence, and confusion, must follow, if they be wanting in the kingdom… because men could not in a society defend themselves from violence; therefore, by the light of nature they gave their power to one or more, and made a judge or judges to obtain the end of self-preservation.” (94-95)
“If all were innocent persons, and could do no violence one to another, the law would rule all, and all men would put the law in execution, agendo sponte, by doing right of their own accord; and there should be no need of a king to compel men to do right. But now, because men are by nature averse to good laws, therefore there was need of a ruler, who, by office, should reduce the law into practice; and so is the king the law reduced in practice.” (101)
“It was not want of wisdom, (for in many, and in the people, there must be more wisdom than in one man,) but rather corruption of nature and reciprocation of injuries that created kings and other judges.” (121)
Societies cannot survive without rulers, who will protect society from itself, therefore all men are under moral obligation to appoint a ruler or rulers.
Fatherly Authority is not Royal Authority
Royalists argued that royal authority is fatherly authority. Sir Robert Filmer would later argue that all royal authority is derived from Adam’s and then Noah’s authority over their offspring, which he distributed to his sons over the earth.
“I do not believe that, as royalists say, the kingly power is essentially and univocally that same with a paternal or fatherly power; or that Adam, as a father, was as a father and king; and that suppose Adam should live in Noah’s days, that by divine institution and without consent of the kingdoms and communities on earth, Adam hoc ipso, and for no other reason but because he was a father, should also be the universal king, and monarch of the whole world… A father, as a father, hath not power of life and death over his sons, because, Rom. xiii., by divine institution the sword is given by God to kings and judges; and if Adam had had any such power to kill his son Cain for the killing of his brother Abel, it had been given to him by God as a power politic, different from a fatherly power” (62)
“I doubt if the relation of a father, as a father, doth necessarily infer a royal or kingly authority of the father over the son; or by nature’s law, that the father hath a power of life and death over, or above, his children, and the reasons I give are, (1.) Because power of fife and death is by a positive law, presupposing sin and the fall of man; and if Adam, standing in innocency, could lawfully kill his son, though the son should be a malefactor, without any positive law of God, I much doubt. (2.) I judge that the power royal, and the fatherly power of a father over his children, shall be found to be different; and the one is founded on the law of nature, the other, to wit, royal power, on a mere positive law.” (XII, 50)
Civil Government is a Post-Fall Institution
“[A] fatherly power is such as formally to preserve the life of the children, and not to take away the life; yea, and Adam, though he had never sinned, nor any of his posterity, Adam should have been a perfect father, as he is now indued with all fatherly power that any father now hath; yea God should not have given the sword or power of punishing ill-doers, since that power should have been in vain, if there had been no violence, nor bloodshed, or sin on the earth; for the power of the sword and of lawful war, is given to men now in the state of sin.” (62)
“[T]hat kings should necessarily have been in the world, if man had never fallen in sin, I am not, by any cogent argument, induced to believe. I conceive there should have been no government but those of fathers and children, husband and wife, and (which is improperly government) some more gifted with supervenient additions to nature, as gifts and excellencies of engines.” (79)
“Quest. 3.— Whether magistrates, as magistrates, be natural.
Ans. —Nature is considered as whole and sinless, or as fallen and broken. In the former consideration, that man should stand in need of some one to compel him with the sword to do his duty, and not oppress, was no more natural to man than to stand in need of lictors and hangmen, or physicians for the body, which in this state was not in a capacity of sickness or death; and so government by parents and husbands was only natural in the latter consideration. Magistrates, as magistrates, are two ways considered,—
1. According to the knowledge of such an ordinance;
2. According to the actual erection of the practice of the office of magistrates.
In the former notion, I humbly conceive, that by nature’s light, man now fallen and broken, even under all the fractions of the powers and faculties of the soul, doth know, that promises of reward, fear of punishment, and the co-active power of the sword, as Plato said, are natural means to move us, and wings to promote obedience and to do our duty; and that government by magistrates is natural.
But, in the second relation, it is hard to determine that kings, rather than other governors [aristocracy, democracy, etc], are more natural.” (227-228)
Consent of the People
“I conceive it to be evident that royal dignity is not immediately, and without the intervention of the people’s consent, given by God to any one person, and that conquest and violence is no just title to a crown.” (50)
“Politicians agree to this as an undeniable truth, that as domestic society is natural, being grounded upon nature’s instinct, so politic society is voluntary, being grounded on the consent of men; and so politic society is natural, in radice, in the root, and voluntary and free, in modo, in the manner of their union; and the Scripture cleareth to us, that a king is made by the free consent of the people, (Deut xvii. 15) and so not by nature.” (52)
Rutherford points out that the royalist denial that civil government is established by the consent of the people is absurd because it cannot provide for the initial establishment of civil government in a society. If conquest is no just title and God does not prophetically speak, then all that remains, on their view, is hereditary birth from a ruler. But if no ruler yet exists (and thus no hereditary line), then the people may not ever create a civil government.
“Hence in this case no title could be given to any man to make him king, but only the people’s election, which is that which we say. And it is most unreasonable that a people under popular government cannot lawfully choose a king to themselves, seeing a king is a lawful magistrate, and warranted by God’s word, because they have not a king of royal birth to sit upon the throne.” (42)
Rutherford argues from numerous Old Testament examples, including divinely anointed Saul and David, who did not become kings until the people made them kings (noting that David was anointed by God to be king long before he actually became king by consent of the people). Beyond mere example, Rutherford points to Deuteronomy 17:15 as prescriptive for the appointment of rulers to the office. If the people did not have authority to choose a ruler for themselves, then God could not have commanded them to do so. But God did command them to do so, therefore they must have had the authority to do so. Furthermore, hereditary succession was not assumed but was rather a special favor bestowed uniquely upon David’s line. Yet even then, David’s sons did not become kings without the consent of the people.
“Let royalists show us any act of God making David king, save this act of the people making him formally king at Hebron, and therefore the people, as God’s instrument, transferred the power, and God by them in the same act transferred the power, and in the same they chose the person; the royalists affirm these to be different actions, affirmant incumbit probatio. 3. This power is the people’s radically, naturally, as the bees (as some think) have a power natural to choose a king-bee, so hath a community a power naturally to defend and protect themselves; and God hath revealed in Deut. xvii. 14, 15, the way of regulating the act of choosing governors and kings, which is a special mean of defending and protecting themselves; and the people is as principally the subject and fountain of royal power, as a fountain is of water.” (203)
“[A]ccording to Scripture, nothing regulateth our will, and leadeth the people now that they cannot err following God’s rule in making a king, but the free suffrages of the states choosing a man whom they conceive God hath endued with these royal gifts required in the king whom God holdeth forth to them in his word, (Deut. xvii.)” (41)
“[F]atherly government, being in two, is not kingly, but nearer to aristocracy; and when many families were on earth, every one independent within themselves, if a common enemy should invade a tract of land governed by families, I conceive, by nature’s light, they should incline to defend themselves, and to join in one politic body for their own safety, as is most natural. But, in that case they, having no king, and there were no reason of many fathers all alike loving their own families and self-preservation, why one should be king over all, rather than another, except by voluntary compact. So it is clear that nature is nearer to aristocracy before this contract than a monarchy.” (93)
The Mutual Compact (Constitution)
The people have the the power to
“Limitate, — they giving it [royal power] so as these three acts remain with the people.
(1.) That they may measure out, by ounce weights, so much royal power, and no more and no less.
(2.) So as they may limit, moderate, and set banks and marches to the exercise.
(3.) That they give it out, couditionate, upon this and that condition, that they may take again to themselves what they gave out upon condition if the condition be violated.” (6)
When the people choose a ruler to place over themselves, they do so conditionally.
“There is an oath betwixt the king and his people, laying on, by reciprocation of bands, mutual civil obligation upon the king to the people, and the people to the king (2 Sam 5:3; 1 Chron 11:3; 2 Chron 23:2, 3; 2 Kings 11:17; Eccl. 8:2)… There be no mutual contract made upon certain conditions, but if the conditions be not fulfilled, the party injured is loosed from the contract.” (54).
“If, then, the people make a king, as a king, conditionally, for their safety, and not for their destruction, (for as a king he saveth, as a man he destroyeth, and not as a king and father) and if God, by the people’s free election, make a king, God maketh him a king conditionally, and so by covenant; and, therefore, when God promiseth (2 Sam. vii., 12 ; 1 Chron. xxviii. 7— 9) to David’s seed, and to Solomon, a throne, he promiseth not a throne to them immediately, as he raised up prophets and apostles without any mediate action and consent of the people, but he promiseth a throne to them by the mediate consent, election, and covenant of the people; which condition and covenant he expresseth in the very words of the people’s covenant with the king. So they walk as kings in the law of the Lord, and take heed to God’s commandment and statutes to do them.” (57-58)
“The power that the king hath (I speak not of his gifts) he hath it from the people who maketh him king, as I proved before; but the people have neither formally nor virtually any power absolute to give the king. All the power they have is a legal and natural power to guide themselves in peace and godliness, and save themselves from unjust violence by the benefit of rulers.” (102)
“The law hath a supremacy of constitution above the king. Because the king by nature is not king, as is proved; therefore, he must be king by a politic constitution and law; and so the law, in that consideration, is above the king, because it is from a civil law that there is a king rather than any other kind of governor.” (126)
The People Are Superior to the King
“The people in power are superior to the king, because every efficient and constituent cause is more excellent than the effect… The royal power to make laws with the king, and so a power eminent in their states representative to govern themselves, is in the people… The people can, and doth, limit and bind royal power in elected kings, therefore they have in them royal power to give to the king. Those who limit power, can take away so many degrees of royal power; and those who can take away power, can give power;” (80)
“If the people by other governors, as by heads of families and other choice men, govern themselves and produce these same formal effects of peace, justice, religion, on themselves, which the king doth produce, then is there a power of the same kind, and as excellent as the royal power, in the people; and there is no reason but this power should be held to come immediately from God, as the royal power; for it is every way of the same nature and kind, as I shall prove.” (80)
“[T]he people, having their liberty to make any often, or twenty, their king, and to advance one from a private state to an honourable throne, whereas it was in their liberty to advance another, and to give him royal power of ten degrees, whereas they might give him power of twelve degrees, of eight, or six, must be in excellency and worth above the man whom they consitute king, and invest with such honour; as honour in the fountain, and honos participans et originans, must be more excellent and pure than the derived honour in the king, which is honos partial* patus et originatus. If the servant give his liberty to his master, therefore he had that liberty in him, and in that act, liberty must be in a more excellent way in the servant, as in the fountain, than it is in the master; and so this liberty must be purer in the people than in the king; and therefore, in that both the servant is above the master, and the people worthier than the king… the fountain-power remaineth most eminently in the people, 1. Because they give it to the king, ad modum recipi- entis, and with limitations; therefore it is unlimited in the people, and bounded and limited in the king, and so less in the king than in the people.” (82)
“[T]hey never constituted over themselves a king, in regard of fountain-power; for if they give away the fountain, as a slave selleth his liberty, they could not make use of it. Indeed they set a king above them, quoad potostatem legum executivam, in regard of a power of executing laws and actual government for their good and safety; but this proveth only that the king is above the people, in some respect. But the most eminent and fountain-power of royalty remaineth in the people as in an immortal spring, which they communicate by succession to this or that mortal man, in the manner and measure that they think good.” (82)
Constitution Limited by God’s Law
The people are not free to give whatever authority they want to a ruler. The constitutional authority is limited by God’s law.
“That the people can make a king supreme, that is, absolute, and so resign nature’s birthright, that is, a power to defend themselves, is not lawful, for if the people have not absolute power to destroy themselves, they cannot resign such a power to their prince. (46)
“He who is made a minister of God, not simply, but for the good of the subject, and so he take heed to God’s law as a king, and govern according to God’s will, he is in so far only made king by God as he fulfilleth the condition; and in so far as he is a minister for evil to the subject, and ruleth not according to that which the book of the law commandeth him as king, in so far he is not by God appointed king and ruler, and so must be made a king by God conditionally; but so hath God made kings and rulers, Rom. xiii. 4; 2 Goran, vi. 16; Psal. lxxxix. 30, 31; 2 Sam. vii. 12; 1 Chron. xxviii. 7 —9.” (57)
“My life and religion, and so my soul, in some cases, are committed to the king as to a public watchman, even as the flock to the feeder, the city to the watchmen; and he may betray it to the enemy. Therefore, he hath the trust of life and religion, and hath both tables of the law in his custody, ex officio, to see that other men than himself keep the law. But the law is not the king’s own, but given to him in trust. He who receiveth a kingdom conditionally, and may be dethroned if he sell it or put it away to any other, is a fiduciary patron, and hath it only in trust.” (72)
“It is false that the people doth, or can by the law of nature, resign their whole liberty in the hand of a king. 1. They cannot resign to others that which they have not in themselves, Nemo potest dare quod non habet; but the people hath not an absolute power in themselves to destroy themselves, or to exercise those tyrannous acts spoken of, 1 Sam. viii. 11— 15, &c.; for neither God nor nature’s law hath given any such power.” (81-82)
“[I]t is denied that the people can absolutely make away their whole power to the king. It dependeth on the people that they be not destroyed. They give to the king a politic power for their own safety, and they keep a natural power to themselves which they must conserve, but cannot give away; and they do not break their covenant when they put in action that natural power to conserve themselves; for though the people should give away that power, and swear though the king should kill them all, they should not resist, nor defend their own lives, yet that being against the sixth commandment, which enjoineth natural self-preservation, it should not oblige the conscience, for it should be intrinsically sinful; for it is all one to swear to non-self-preservation as to swear to self-murder.” (84)
“But some may say, Volenti non fit injuria, If a people totally resign their power, and swear non-resistance to a conqueror, by compact, they cannot resist. I answer, neither doth this follow, because it is an unlawful compact, and none is obliged to what is unlawful. For, (1.) It is no more lawful for me to resign to another my power of natural self-defence than I can resign my power to defend the innocent drawn to death, and the wives, children, and posterity that God had tyed me unto. (2.) The people can no more resign power of self-defence, which nature hath given them, than they can be guilty of self-murder, and be wanting in the lawful defence of kingdom and religion.” (178)
“God is the author of civil laws and government, and his intention is therein the external peace, and quiet life, and godliness of his church and people, and that all judges, according to their places, be nurse-fathers to the church. (Isa. xlix. 23.) Now God must have appointed sufficient means for this end; but there is no sufficient means at all, but a mere anarchy and confusion, if to one man an absolute and unlimited power be given of God, whereby, at his pleasure, he may obstruct the fountains of justice, and command lawyers and laws to speak not God’s mind, that is justice, righteousness, safety, true religion, but the sole lust and pleasure of one man.” (105)
“There is no necessity that the reserve be expressed in the covenant between king and people, more than in contract of marriage between a husband and a wife; beside her jointure, you should set down this clause in the contract, that if the husband attempt to kill the wife, or the wife the husband, in that case it shall be lawful to either of them to part company. For Dr Feme saith, “That personal defence is lawful in the people, if the king’s assault be sudden, without colour of law, or inevitable.” Yet the reserve of this power of defence is not necessarily to be expressed in the contract betwixt king and people. Exigencies of the law of nature cannot be set down in positive covenants, they are presupposed.” (118)
“Quest 6.— Whether absolute and unlimited power of royalty be a ray and beam of divine majesty immediately derived from God?
Ans. —Not at all. Such a creature is not in the world of God’s creation. Royalists and flatterers of kings are parents to this prodigious birth. There is no shadow of power to do ill in God. An absolute power is essentially a power to do without or above law, and a power to do ill, to destroy; and so it cannot come from God as a moral power by institution, though it come from God by a flux of permissive providence; but so things unlawful and sinful come from God.” (228)
This last point is extremely important. The authority that Paul refers to in Romans 13 is necessarily limited in nature because it comes from God and God does not give anyone authority to sin. For more on this point, see Rutherford on Romans 13 and the Logic of Resistance.
Duty of the Magistrate
“The safety of the subjects is the prime end of the constitution of government;” (119)
“[R]oyal empire is essentially to feed, rule, defend, and to govern in peace and godliness, (1 Tim. ii. 2,) as the father doth his children; Psal. lxxviii. 71,” (64)
The ruler’s duty is two-fold: administer justice and uphold/defend/enforce the true religion.
“[T]he formal object of one or many governors is justice and religion, as they are to be advanced.” (92)
“All are equally called gods, (John x. 35; Exod. xxii. 8,) if for any cause, but because all judges, even inferior, are the immediate deputies of the King of kings, and their sentence in judgment as the sentence of the Judge of all the earth,” (92)
“[S]ome kings, out of their pretended prerogative, have given four pardons to one man for four murders. Now this the king might have left undone without sin, but of mere grace he pardoned the murderer who killed four men. But the truth is, the king killed the three last, because he hath no power in point of conscience to dispense with blood, Num. xxxv, 31; Gen. ix. 6. These pardons are acts of mere grace to one man, but acts of blood to the community.” (107)
“[T]he king’s power of exponing the law is a mere ministerial power, and he hath no dominion of any absolute royal power to expone the law as he will, and to put such a sense and meaning of the law as he pleaseth.” (137)
“My life and religion, and so my soul, in some eases, are committed to the king as to a public watchman, even as the flock to the feeder, the city to the watchmen; and he may betray it to the enemy. Therefore, he hath the trust of life and religion, and hath both tables of the law in his custody, ex officio, to see that other men than himself keep the law. But the law is not the king’s own, but given to him in trust. He who receiveth a kingdom conditionally, and may be dethroned if he sell it or put it away to any other, is a fiduciary patron, and hath it only in trust.” (72)
“As the king is obliged to God for the maintenance of true religion, so are the people and princes no less in their place obliged to maintain true religion;” (55)
“The king, as a man, is not more obliged to the public and regal defence of the true religion than any other man of the land ; but he is made by God and the people king, for the church and people of God’s sake, that he may defend true religion for the behalf and salvation of all. If therefore he defend not religion for the salvation of the souls of all in his public and royal way, it is presumed as undeniable that the people of God, who by the law of nature are to care for their own souls, are to defend in their way true religion, which so nearly concerneth them and their eternal happiness.” (56)
Distinction Between the Person and the Office
In agreement with the reformed tradition (notably Knox, who defended the view in a public debate), Rutherford distinguished between the office of ruler and the person filling that office. When that person ruled lawfully, they were acting under the authority of the office. When they ruled unlawfully, they were acting as a private individual without authority.
“The ground of this distinction we desire to be considered from Rom. xiii. We affirm with Buchanan, that Paul here speaketh of the office and duty of good magistrates, and that the text speaketh nothing of an absolute king, nothing of a tyrant… It is evident from Rom. xiii. that all subjection and obedience to higher powers commanded there, is subjection to the power and office of the magistrate in abstracto, or, which is all one, to the person using the power lawfully, and that no subjection is due by that text, or any word of God, to the abused and tyrannical power of the king, which I evince from the text, and from other Scriptures… The powers (Rom. xiii. 1) that be, are ordained of God, as their author and efficient; but kings commanding unjust things, and killing the innocent, in these acts, are but men, and sinful men; and the power by which they do these acts, a sinful and an usurped power, and so far they are not powers ordained of God, according to his revealed will, which must rule us.” (144)
Conscience Must Decide if a Magistrate Acts Lawfully
Since there is a higher law than the ruler, the ruler is not the final determiner of whether he is acting lawfully.
“[W]hatever interpretation swerveth either from fundamental laws of policy, or from the law of nature, and the law of nations, and especially from the safety of the public, is to be rejected as a perverting of the law; and therefore, conscientia humani generis, the natural conscience of all men, to which the oppressed people may appeal unto when the king exponeth a law unjustly, at his own pleasure, is the last rule on earth for exponing of laws.” (136)
“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;” (187)
Given the occasion of Rutherford’s writing (a civil war), all of the above is simply laying the groundwork for his main point: rulers may be resisted. Resistance is rooted in the fact that the ruler’s authority is limited and conditional. If the king breaks the covenant, the people are freed from obeying him. “There be no mutual contract made upon certain conditions, but if the conditions be not fulfilled, the party injured is loosed from the contract.” (54)
“They give to the king a Politic power for their own safety, and they keep a natural power to themselves which they must conserve, but cannot give away; and they do not break their covenant when they put in action that natural power to conserve themselves; for though the people should give away that power, and swear though the king should kill them all, they should not resist, nor defend their own lives, yet that being against the sixth commandment, which enjoineth natural self-preservation, it should not oblige the conscience, for it should be intrinsically sinful; for it is all one to swear to non-self-preservation as to swear to self-murder.” (84)
“When the supreme magistrate will not execute the judgment of the Lord, those who made him supreme magistrate, under God, who have, under God, sovereign liberty to dispose of crowns and kingdoms, are to execute the judgment of the Lord, when wicked men make the law of God of none effect. 1 Sam. xv. 32, so Samuel killed Agag, whom the Lord expressly commanded to be killed, because Saul disobeyed the voice of the Lord.” (96)
“[Discussion of commonwealth/society as a pupil choosing a tutor to guide them while underage] There is no community but is major in this, that it can appoint its own tutors; and though it cannot be without all rulers, yet it may well be without this or that prince and ruler, and, therefore, may resume its power, which it gave conditionally to the ruler for its own safety and good ; and in so far as this condition is violated, and power turned to the destruction of the commonwealth, it is to be esteemed as not given; and though the people be not a politic judge in their own cause, yet in case of manifest oppression, nature can teach them to oppose defensive violence against offensive. A community in its politic body is also above any ruler, and may judge what is manifestly destructive to itself.” (69)
“It is denied, that the power, (Rom. xiii.,) as absolute, is God’s ordinance. And I deny utterly that Christ and his apostles did swear non-resistance absolute to the Roman emperor.” (110)
“I utterly deny that God ever ordained such an irrational creature as an absolute monarch. If a people unjustly, and against nature’s dictates, make away irrevocably their own liberty, and the liberty of their posterity, which is not their’s to dispose off, and set over themselves as base slaves, a sinning creature, with absolute power, he is their king, but not as he is absolute, and that he may not be forcibly resisted, notwithstanding the subjects did swear to his absolute power, (which oath in the point of absoluteness is unlawful, and so not obligatory,) I utterly deny.” (118)
“To save the lives of innocents, to repress tyranny, to defend the oppressed, are, by our Confession [the Scottish Confession of Faith, Ch. XIV], good works, well pleasing to God, and so is this a good work, not to suffer innocent blood to be shed, if we may withstand it. Hence it is clear as the sun, that our Confession, according to the word of God, to which king Charles did swear at his coronation, doth oblige and tie us in the presence of God and his holy angels, to rise in arms to save the innocent, to repress tyranny, to defend the oppressed…
So the thirty-sixth article of the Belgic Confession saith of all magistrates, no less than of a king, (we know, for tyranny of soul and body, they justly revolted from their king,) Idcirco magistrates ipsos gladio armavit, ut malos quidem plectant paznis, probos vero teeanter. Horum por-ro est, non modo de civili politia conser-vanda esse solicitos, verum etiam dare operam ut sacrum ministerium conservetur, omnis idololatria et adulterinus Dei cultus e medio tollatur, regnum antichristi diru-ater, fyc Then, all magistrates, though inferior, must do their duty that the law of God hath laid on them, though the king forbid them; but, by the Belgic Confession and the Scripture, it is their duty to relieve the oppressed, to use the sword against murdering papists and Irish rebels and destroying cavaliers; for, shall it be a good plea in the day of Christ to say, “Lord Jesus, we would have used thy sword against bloody murderers if thy anointed, the king, had not commanded us to obey a mortal king rather than the King of ages, and to execute no judgment for the oppressed, because he judged them faithful catholic subjects.’” (221-222)
Not only may society defend itself, it may, under certain conditions, punish the ruler.
“A political society, as by nature’s instinct they may appoint a head, or heads, to themselves, so also if their head, or heads, become ravenous wolves, the God of nature hath not left a perfect society remediless; but they may both resist, and punish the head, or heads, to whom they gave all the power that they have, for their good, not for their destruction.” (129)
“We shall quickly prove that the states may repress this power, and punish the tyrant— not the king, when he shall prove that a tyrannous power is an ordinance of God, and so may not be resisted; for the law of nature teacheth,— if I give my sword to my fellow to defend me from the murderer, if he shall fall to and murder me with my own sword, I may (if I have strength) take my sword from him.” (132)
“Nor can I assent to Junnerius (de officio vrincip. Christia. c. 5 and 17,) who holdeth, “that these voluntary pactions betwixt king and people, in which the power of the prince is diminished, cannot stand, because their power is given to them by God’s word, which cannot be taken from them by any voluntary paction, lawfully;” and from the same ground, Winzetus (in velit. contr. Buchan. p. 3) ” will have it unlawful to resist kings, because God hath made them irresistible.” I answer,— If God, by a divine institution, make kings absolute, and above all laws, (which is a blasphemous supposition— the holy Lord can give to no man a power to sin, for God hath not himself any such power.) then the covenant betwixt the king and people cannot lawfully remove and take away what God by institution has given; but because God (Deut. xvii.) hath limited the first lawful king, the mould of all the rest, the people ought also to limit him by a voluntary covenant; and, because the lawful power of a king to do good is not by divine institution placed in an indivisible point.” (140)
“When the supreme magistrate will not execute the judgment of the Lord, those who made him supreme magistrate, under God, who have, under God, sovereign liberty to dispose of crowns and kingdoms, are to execute the judgment of the Lord, when wicked men make the law of God of none effect. 1 Sam. xv. 32, so Samuel killed Agag, whom the Lord expressly commanded to be killed, because Saul disobeyed the voice of the Lord.” (96)
“If I would go to human testimonies, which I judge not satisfactory to the conscience, I might cite many: the practice of France, of Holland, the divines in Luther’s time, (Sleidan. 8, c. 8, 22,) resolved resistance to be lawful; Calvin, Beza, Pareus, the German divines, Buchanan, and an host might be produced.” (184)
What has been said up to this point is in agreement with earlier reformed political theology, such as Beza (whom we previously discussed), insofar as it is understood to be referring to the right and duty of nobles (typically land owners with authority above private individuals – see previous quotes from Rutherford mentioning “states”) or lesser magistrates to resist. Beza argued that the Estates or Orders were obligated to resist and dethrone a tyrant, but private individuals may not resist a tyrant. They may only hold out their necks and pray for deliverance. As previously mentioned, this was an attempt to honor Paul’s words in Romans 13, but it resulted in a contradiction for the consent theory of government (which Beza held). If a ruler only possessed authority conditionally by way of compact/agreement, and they failed to meet those conditions, the people could not continue to be obligated to their half of the agreement. Rutherford, following Buchanan and Althusius, recognized this fact.
“A tyrant, without a title, may be resisted by any private man. Quia licet vim vi re-pellere, because we may repel violence by violence; yea, he may be killed.” (141)
This has been referred to as “the explosive doctrine of single-handed tyrannicide.”1 The above quote referred to a ruler who had gone so far as to formally become a tyrant and therefore lose his title entirely. But Rutherford argued that even a ruler with a title could still be resisted by the individual in certain circumstances.
“[B]ecause the royal dignity doth not advance a king above the common condition of men, and the throne maketh him not leave off to be a man, and a man that can do wrong; and therefore as one that doth manifest violence to the life of a man, though his subject, he may be resisted with bodily resistance, in the case of unjust and violent invasion.” (169)
“For the lawfulness of resistance in the matter of the king’s unjust invasion of life and religion, we offer these arguments. Arg. 1.— That power which is obliged to command and rule justly and religiously for the good of the subjects, and is only set over the people on these conditions, and not absolutely, cannot tie the people to subjection without resistance, when the power is abused to the destruction of laws, religion, and the subjects. But all power of the law is thus obliged, (Rom. xiii. 4; Deut. xvii. 18— 20 ; 2 Chron. xix. 6 ; Ps. exxxii. 11,12 ; Ixxxix. 30, 31; 2 Sam. vii. 12; Jer. xvii. 24, 25,) and hath, and may be, abused by kings, to the destruction of laws, religion, and subjects. The proposition is clear. 1. For the powers that tie us to subjection only are of God. 2. Because to resist them, is to resist the ordinance of God. 3. Because they are not a terror to good works, but to evil. 4. Because they are God’s ministers for our good, but abused powers are not of God, but of men, or not ordinances of God; they are a terror to good works, not to evil; they are not God’s ministers for our good.
Arg. 2.— That power which is contrary to law, and is evil and tyrannical, can tie none to subjection, but is a mere tyrannical power and unlawful; and if it tie not to subjection, it may lawfully be resisted…
Arg. 3.— There is not a stricter obligation moral betwixt king and people than betwixt parents and children, master and servant, patron and clients, husband and wife, the lord and the vassal, between the pilot of a ship and the passengers, the physician and the sick, the doctor and the scholars, but the law granteth, (I. Minime 35, de Relig. et sumpt. funer,) if these betray their trust LEX, REX ; OR, committed to them, they may be resisted:..
Arg. 6.— If the estates of a kingdom give the power to a king, it is their own power in the fountain; and if they give it for their own good, they have power to judge when it is used against themselves, and for their evil, and so power to limit and resist the power that they gave.” (141)
“[N]o king, no civil power can take away nature’s birthright of self-defence from any man, or a community of men.” (185)
Recalling the distinction between person and office, Rutherford notes
[T]he man who is the king, in so far as he doth those things that are against his office, may be resisted; and that in these we are not to be subject, but only we are to be subject to his power and royal authority, in abstracto, in so far as, according to his office, he is not a terror to good works, but to evil…
The ruler, as the ruler, and the nature and intrinsical end of the office is, that he bear God’s sword as an avenger to execute wrath on him that doth evil,— and so cannot be resisted without sin. But the man who is the ruler, and commandeth things unlawful, and killeth the innocent, carrieth the papist’s and prelate’s sword to execute, not the righteous judgment of the Lord upon the ill-doer, but his own private revenge upon him that doth well; therefore, the man may be resisted, the office may not be resisted; and they must be two different things.” (143)
“The unlawful resistance condemned by Paul (Rom. xiii.) is not upon the ground of absoluteness, which is in the court of God nothing, being never ordained of God, but upon reasons of conscience, because the powers are of God, and ordained of God. But some may say, Volenti non fit injuria, If a people totally resign their power, and swear non-resistance to a conqueror, by compact, they cannot resist. I answer, neither doth this follow, because it is an unlawful compact, and none is obliged to what is unlawful.” (178)
In defense of the right of private individuals to resist their rulers, Rutherford pointed out that running away from authorities, which is permitted in Scripture and granted by all, is also resistance.
“Flying from the tyranny of abused authority, is a plain resisting of rulers in their unlawful oppression and perverting of judgment. All royalists grant it lawful, and ground it upon the law of nature, that those that are persecuted by tyrannous princes may flee, and it is evident from Christ’s commandment, “If they persecute you in one city, flee to another,” Matt. x. 23, and by Matt, xxiii. 34. Christ fled from the fury of the Jews till his hour was come; Elias, Uriah, (Jer. xxvi. 20,) and Joseph and Mary fled; the martyrs did hide themselves in caves and dens of the earth (Heb. xi. 37, 38); Paul was let down through a window in a basket at Damascus. This certainly is resistance… When a murderer, self-convicted, fleeth from the just power of a judge lawfully citing him, he resisteth the just power ordained of God (Rom. iii.); therefore, by the same reason, if we flee from a tyrannous power, we resist that tyrannous power, and so, by royalists’ ground, we resist the ordinance of God by flying.” (159)
Example of Christ’s Suffering
Rutherford makes the important qualification that even though resistance by any man is lawful, it may not be appropriate in every circumstance.
“He might, with more than twelve legions of angels, defend himself, but he would not, not because resistance was unlawful— no shadow for that in the text— but because it was God’s will that he should drink the cup his Father gave him, and because to take the sword without God’s warrant, subjecteth the usurper of God’s place to perish with the sword. Peter had God’s revealed will that Christ behoved to suffer, (Matt. xxvi. 52, 53; xvi. 21— 23,) and God’s positive command, that Christ should die for sinners, (John x. 24,) may well restrain an act of lawful self-preservation, hie et nunc, and such an act as Christ lawfully used at another time. (Luke iv. 29, 30; John xi. 7, 8.)” (181)
During the time of the Assembly, the Presbyterians engaged in lengthy debate with Erastians. The Erastians argued that the civil magistrate was the head of the church and had the authority to govern the visible church. The Presbyterians argued that the church was instituted by God with Christ the mediator as head and established with officers directly under him, not mediated through the civil magistrate. Thus, rather than a divine right of kings, there was a divine right of church government.
P. Prelate. [Rutherford’s opponent] —Sectaries have found a query of late, that kings are God’s, not Christ’s lieutenants on earth. Romanists and puritans erect two sovereigns in every state,— the Jesuit in the Pope, the puritan in the presbytery.
Ans. 1.— We give a reason why God hath a lieutenant, as God; because kings are gods, bearing the sword of vengeance against seditious and bloody prelates, and other ill doers. But Christ, God-man, the Mediator and head of the body— the church, hath neither pope nor king to be head under him. The sword is communicable to men; but the headship of Christ is communicable to no king, nor to any created shoulders.” (211)
This marked a shift from earlier formulations of two kingdoms of the two-fold government of man (held by Calvin and Luther), which referred to the internal (conscience) and the external. Under this formula, the external kingdom included both the civil magistrate and the visible church. The 17th century debate shifted the visible church into the spiritual kingdom distinct from the civil kingdom. For more on this see Confessional Two Kingdoms.
Enemy of the State
Though Rutherford was expressing the reformed tradition’s development of political theology, it was not simply “par for the course” in his day. The Reformation sparked political turmoil and upheaval, led by this doctrine. Driven by the logical interpretation and application of Scripture, these thoughts were revolutionary. From the introduction found in the Kindle edition:
“His work, Lex, Rex, was considered by the government as “inveighing against monarchie and laying ground for rebellion;” and ordered to be burned by the hand of the common hangman at Edinburgh. It met with similar treatment at St Andrews, and also at London; and a proclamation was issued, that every person in possession of a copy, who did not deliver it up to the king’s solicitor, should be treated as an enemy to the government. Rutherford himself was deprived of his offices both in the University and the Church, and his stipend confiscated; he was ordered to confine himself within his own house, and was summoned to appear before the Parliament at Edinburgh, to answer a charge of high treason. It may be easily imagined what his fate would have been had he lived to obey the mandate; but ere the time arrived he was summoned to a far higher than an earthly tribunal.”
Lord willing, I will post an analysis and critique of Lex, Rex in the future.
- Roger A. Mason, ‘People Power? George Buchanan on Resistance and the Common Man’, in Robert von Friedeburg, ed., Widerstandsrecht in der frühen Neuzeit, in Zeitschrift für Historische Forschung, beiheft 26 (2001), 163–81, at 179. ↩