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Sunday, March 21, 2010

Another Excerpt from "Covenant to Constitutionalism", by Peter J. Herz (2001)


A limited and mixed monarchy, such as is in Scotland and England, seems to me
the best government, when parliaments, with the king, have the good of all the
three [Aristotelian constitutions]. This government hath glory, order, unity
from a monarch; from the government of the most and wisest, it has safety of
counsel, stability, strength; from the influence of the commons, it hath
liberty, privileges, promptitude of obedience. (Rutherford 1980 [1644]:192).

Omnipotency in one that can sin is a cursed power (Rutherford 1980

Glen Burgess, discussing recent literature on Scottish political thought between the 16th and early 18th centuries, holds that the disciples of Andrew Melville left no political treatise behind, and wrote little on political matters (1998:585). This refers probably to political writings produced after Buchanan and prior to James’ accession to the English throne. However, the influence of Buchanan’s De Iure Regni Apud Scotos remained strong among the Scottish Presbyterians during their conflicts with the crown. The Presbyterians found a political spokesman in Samuel Rutherford (1600?-1661), whose _Lex Rex_ (1644--hereafter LR in notes) was a major political tract of its time. Rutherford’s work makes no pretense to great originality, but is valuable as an example of how the thought of Buchanan, continental monarchomachs, Johannes Althusius, and Rutherford’s own training in early 17th century Reformed scholasticism came together to support the rule of law, a popular voice in government, and limited monarchy. Rutherford also illustrates the dogged loyalty of Scots Presbyterians between the appearance of Buchanan’s De Iure Regni Apud Scotos and the Claim of Right of 1689 to these political ideals and a vision of Scotland as a covenanted community. But he is also important as an example of the Christian roots of constitutional, and even republican, government.

(A). Rutherford in Context

Although an obscure figure today, Rutherford was anything but obscure in his own era. While Hobbes worked in semi-retirement, and Locke published his Two Treatises anonymously and without a publication date, Rutherford stood in the thick of the theological and political controversies of the 1630's and '40's. In 1636 he was exiled from his parish in Anwoth, in southwestern Scotland, to Aberdeen, where, the Caroline bishops hoped, the influence of Arminian theologians would temper the fiery critic of both Arminianism and episcopacy. After 1638, he emerged as a spokesman for the victorious Scottish Presbyterians. He served as a Scottish commissioner to the Westminster Assembly (1645-48), which drafted a common confession for the churches of the three British Kingdoms. John Milton names him as one of the “new forcers of conscience”, while the government of James VII and II deemed treasonous the possession or dissemination of his _Lex Rex_, along with Buchanan’s _De Iure Regni Apud Scotos_. Thomas Hobbes may have been thinking of Rutherford and his associates as dividers and dispersers of political power, when he relegated the Presbyterian party of his age to “The Kingdome of Darknesse” in his _Leviathan_.

After the Restoration, Sir James Steuart and other Covenanter stalwarts echoed his political theory (Hunt 1964:85). The Claim of Right (1689), whereby the Estates of Scotland offered the crown to William and Mary, echoes the monarchomach theory of public law which Rutherford systematized. While James Dalrymple, Viscount Stair was by no means as radical as Rutherford, the kinship is clear between Rutherford’s understanding of natural and divine law and limits on kingly power and Stair’s views expressed in _The Institutions of the Law of Scotland _1681). John Witherspoon, the Immigrant Scottish clergyman who signed the Declaration of Independence for his adopted state of New Jersey, and educated a number of influential founders of the American republic at the College of New Jersey, held Rutherford in high regard. A comparison of Rutherford’s _Lex Rex_ and Locke’s _Two Treatises of Government_ reveals some kinship between their views of government as a compact and the supremacy of law. Given that Locke kept hidden much of went into his Two Treatises, the possibility that he read and used Rutherford cannot be ruled out entirely, although the ideas Rutherford set forth also may have reached Locke via other means during Locke’s Puritan youth, since Rutherford was self-consciously (and conscientiously) the spokesman of a large party in both church and state.

Rutherford recently has emerged as an icon among Evangelical conservatives in late 20th century America, who see parallels between his struggles against royal prerogative and their own struggles against an intrusive secular state. A renewed interest in the connections between covenant theology and political constitutionalism in the modern West, exemplified by scholars such as Donald Lutz, Barry Shain, and the late Daniel Elazar, gives the study of Rutherford’s thought a new relevance for academic political science as well, since these and others have traced the roots of American constitutionalism from the Scriptures via the 17th century Reformed theology which the early British colonists brought to America (Lutz 1986).

Scotland’s position on the border of England, its monarch’s position as heir to the English throne, and the Kirk’s desire to be part of the wider European movement of Reformed Protestantism worked together to make 17th century Scotland a battleground over conflicting visions of church, state, and public law. At the beginning of its Reformation, Scotland had a mixed church polity, in which superintendents exercised oversight in the church. While Gordon Donaldson (1960) contends that the original Scottish polity of Knox was episcopalian, his thesis has been convincingly challenged by Maurice Lee (1964) and James Kirk (1980), who note the movement of most of the earlier superintendents toward a more thorough Presbyterianism rather than to the episcopacy favored by the crown. Kirk observes that the Scottish superintendency was more a case of a “bishop in presbytery” (parallel to king in council) than an episcopacy similar to the Anglican model (1980:146-48). John Knox’s _Appellation_ and _Address to the Commonality_ exhibit a keen dissatisfaction with the English model, and may already be pointing to the sort of Presbyterianism which Andrew Melville is often credited with introducing later.

In 1578, the Scottish church drafted its Second Book of Discipline, which the aged George Buchanan helped prepare. It reflects the developed Presbyterianism advocated by Andrew Melville and already operative in the Reformed churches of Switzerland, Geneva, and France. The first great triumph of presbytery over crown came in 1592, when the church, despite the preferences of James VI, transferred all powers of the tulchan bishops to presbyteries.

The period between the Union of Crowns and the National Covenant (1603-38) shows a hardening of positions in Scotland, the temporary imposition of episcopacy, and the emergence of presbyterian resistance. James VI and I long admired the English model of an episcopally-organized national church headed by the monarch. At the Hampton Court Conference (1604), James, responding to the Puritans, made both his famous observation on the incompatibility of presbytery and monarchy and his threat to “harry [the Puritans] out of the land”. But James, whose long presence in Scotland had given him a keen appreciation for the political realities of his northern realm, proceeded cautiously against the Kirk. His son, Charles I, however, had little Scottish experience, and consistently mishandled both church and nobility in Scotland between 1625 and 1638 (Macinnes 1991:1-3).

Rutherford’s _Lex Rex_ (1644, rpt. 1980) is ostensibly a reply to the _Sacrosancta Regum Majestas_ of John Maxwell (1590-1647), an excommunicated Presbyterian minister whom Charles made bishop of Ross, later archbishop of Tuam. In his shorter work, _Presbytery Displayed_, Maxwell criticizes Presbyterianism as a matter of framing mischief by law (1681[1644?]:1). He is scandalized that Scottish presbyteries refuse royal direction, and quotes approvingly James VI and I’s dictum at the Hampton Court Conference that “A Scottish Presbytery as well agreeth with a monarchy as God with the Devil” (1681:7-8). The practice of church sessions’ fining malefactors or putting them in the pillory appears to the prelate as usurpation of civil power (1681:4). He notes the boldness of the Presbyterian ministers in speaking on state matters, including criticism of James’ reception of the Spanish ambassador at a time when Spanish arms persecuted Protestants in the Low Countries (1681:29-35). He states his agreement with James’ fear that Presbytery would usher in a “Democraticall Government” and rightly associates with Presbyterianism the monarchomach view that royal authority is derived from the community (1681:45).

Against Maxwell’s criticism that laymen (such as ruling elders and doctors) sit in prebysteries and general assemblies with learned divines, Rutherford charges that “[George] Buchanan and Mr. Melvin [Melville] were doctors of divinity; and could have taught such an ass as John Maxwell”. But Rutherford is also plainly bothered by the charge that the Presbyterians are anti-monarch. He admits that James VI and I charged his party with disagreement, but adds, “but King James meant of a wicked king; else he spake as a man” (LR 1644:xxii).

But Rutherford’s critiques of such other royalists as William Barclay, Hennig Arnisaeus, Ninian Winzet, Jean Bodin, and others tend to swallow up his “papal prelate”, as he scathingly labels Maxwell. Rutherford thus shows that his purpose is far broader than the refutation of merely one royalist voice. _Lex Rex_ may be understood as the summation, systematization, and capstone of monarchomach theory, in which Rutherford openly admits his admiration and indebtedness to Stephanus Junius Brutus, Théodore de Bèze, Johannes Althusius, and numerous other Reformed writers, and even draws on such Roman Catholics as Suarez, Soto, and Covarruvias.

John Coffey (1997) notes that Rutherford as student and young pastor was greatly influenced by David Calderwood (1575-1650), an uncompromising Presbyterian whose _History of the Church of Scotland_ (rpt. 1678) both builds on Knox’s work and chronicles the struggles of the Presbyterian party and its ultimate success. In his _The Pastor and the Prelate, or Reformation and Conformity_ (1625? rpt. 1692), he castigates the episcopacy which James and Charles sought to impose as “that bitter root of human invention” and the English ecclesiastical model which Scotland was being forced to emulate as “superstitious” (1692:A2).

Rutherford came of age in an era in which the introduction of Episcopalian polity and forms of worship had progressed far under James and Charles, despite the church’s adoption of presbyterian polity in 1592. But there is scant evidence that Rutherford’s own Presbyterian commitments ever wavered. He underwent Presbyterian ordination around 1627, taking a charge at Anwoth in southwestern Scotland, exercising pastoral duties until 1636, when his anti-Arminian polemics and verbal attacks on the Caroline bishops led to his exile in Aberdeen. Coffey holds that Rutherford knew and was influenced by David Calderwood, Scotland’s ecclesiastical historian and one of the most uncompromising members of the Presbyterian party. With the Scots’ signing of the National Covenant in 1638, his exile ended. He then became professor of Hebrew at St. Andrews before serving as a Scottish Commissioner to the Westminster Assembly. Between 1638 and Cromwell’s invasion, Rutherford’s political and ecclesiastical party would be supreme in Scotland, and a power in the wider politics of all three British kingdoms.

Few thinkers better exemplify the connection between the theocratic vision of Reformed orthodoxy and the constitutionalist ideal. In 1636, he penned a Latin polemic against Arminian theology, which was also taken as an attack on the Caroline bishops who advocated it, thus earning exile to Aberdeen. His _Due Right of Presbyteries_ (1644) defends the Presbyterian polity of graded church courts which prevailed throughout Reformed Europe, and belongs to a war of words with Thomas Hooker, the learned English Independent who emigrated and contributed much to the establishment of Connecticut, as well as to one directed against the attempt of Charles Stuart and his autocratic, Arminianizing archbishop, William Laud, to impose an alien doctrine and discipline on the Scottish Kirk. While Rutherford’s politics accept multiple sources of power and authority in monarch, estates, magistrates, and people, his _A Free Disputation Against Pretended Liberty of Conscience_ (1649) shows that his political pluralism was quite untinged with any hint of theological pluralism. Rutherford thus belongs to an era which viewed political society as a holistic partnership between the ecclesiastical and political wielders of Gelasius’ two swords

Rutherford’s chief political works are _Lex Rex _(1644, rpt. 1980) and _A Sermon Preached Before the Honorable House of Commons at their late Solemne Fast_, Wednesday, January 31, 1644, both dating from his London sojourn of 1642-47. Rutherford’s _Sermon Preached to the Honorable House of Commons_ underscores the duty of the lesser magistrates of Britain to care for the well-being of the re-reformed church of the three British Kingdoms, reiterating the standard 17th century view of magistrates and rulers as “nursing fathers” of the church. Lex Rex (hereafter LR in notes) is a position paper written for the Presbyterian party in interregnum British politics, describes government as divine in its root, but popular in its mode (1644:1-2). A generation before Locke, it speaks of the monarch, or, for that matter, the democratic or aristocratic magistrate, as the deriving his power from the consent of the governed. The work answers the charges of Bishop John Maxwell and other royalists that the Presbyterians despised not only monarchy, but all civil government. It takes the form of forty-four questions and answers on the powers of the throne, people, and law. Scripture, especially the Old Testament, is an important influence in Rutherford’s thought, but Lex Rex also reflects a wide interaction with other political thinkers from both the Protestant and Roman Catholic camps. Although Rutherford claimed to be a monarchist, his ideal monarchy is tinged with aristocratic and democratic elements (LR 1644:192). He uses the language of divine right, but in a conditional rather than an absolute sense (LR 1644:2-4). While turgid and dense in style, Lex Rex shares with the _De Politica_ of Johannes Althusius (1610) the distinction of being the most thorough and detailed exposition of monarchomach constitutionalism written from a Reformed perspective.

As a homiletician and devotional writer, Rutherford challenges Ralph Hancock’s assertion that Calvinist theology stressed the transcendence of God to the point where it ceased to affirm the relevance of his providential government in day-to-day affairs (1988:691-93). Rutherford's posthumously collected Letters show a deep devotional life and his encouragement of the same in others as they face both the ordinary trials of life and the specter of religious persecution. Significantly, while Lex Rex is turgid and dense, the Letters exhibit a clear, lucid, and lively style, suggesting that their author was far more at home in his pastoral role than in his political one, as well as suggesting why, in an age which largely forgot Rutherford as a political theorist, the Letters remained a classic of Evangelical devotional writing. John Coffey (1997) uses a variety of Rutherford’s letters and sermons to convincingly demonstrate the role of an apocalyptic vision in Rutherford’s thought which, at least in the 1640’s, saw in the success of Scotland’s covenanted revolution and its English parliamentary allies a harbinger of the eschatological millennium.

But the context of the Letters points to their significance for political history as well as spirituality. Written while Rutherford was exiled to Aberdeen, far from his charge in Anwoth in southwestern Scotland, the Letters represent a continuing and very close bond between Rutherford and a flock which included both nobles and commoners. While defense of Presbyterial church government sporadically appears in the Letters, it receives little of the sustained apologetic which might be expected had Rutherford’s correspondents seriously entertained thoughts of conformity to the episcopacy. He seems certain that his people share his conviction that the crown rights of King Jesus trump the claims of King Charles. This may be one reason why Rutherford, unlike a later age, could see no latent conflict between his vision of a covenanted commonwealth and a his acceptance of a democratic element in the organization of the state.

The combination in Rutherford of calls for supremacy of law, limits on powerholders, and even a good word for democracy with a strongly theocratic vision of society shows a preliberal constitutionalism rather than an illiberal one. A parallel reading of Rutherford’s _Lex Rex_, _Locke’s Two Treatises_, and the 1689 Claim of Right permits understanding of how 18th and 19th century liberals in Great Britain and America could develop a “Whig myth” of a Puritan proto-liberalism. Robert Burns, in the early 19th century, exemplifies this “myth” in the introduction to Wodrow’s Church History:

The principles of Mr. Rutherford’s Lex Rex...are substantially the principles
on which all government is founded, and without which the civil magistrate
would become a curse rather than a blessing to a country. They are the very
principles which lie at the basis of the British constitution, and by whose
tenure the house of Brunswick does at this very moment hold possession of
the throne of these realms. (Quoted in the Preface to the 1980 reprint of Lex
Rex ).

The work of Shain, Elazar, and Lutz suggests that the “Whig myth” wrapped a solid core of truth with a filmy tissue of fiction, even though these recent authors do not read the ideals of the present into the minds of the past. By identifying the concept of the divine covenant as a theological pillar of Anglophone constitutionalism, they have pointed to the past as setting a trajectory on which the present and future travel. This is the core of truth around which the older Whig interpretation of the Puritan era wrapped its tissue of liberal fiction.
The study of Samuel Rutherford and his contemporaries supports the late 20th century American theory concerning the connection between the covenantal idea and later constitutional liberalism. But it also shows that other loci of Reformed theology predisposed the Reformed of the 17th century to struggle for constitutionalist principles. The mediatorial work of Christ and his redemptive work, which, in the Reformed system are connected to the idea of covenant, also tumble out in Rutherford’s arguments for limiting royal authority; as do the divine works of creation and providence, and a highly biblicist epistemology.

(B). Interpreting Rutherford

While mentioned by many historians of 17th century Britain, Rutherford as a subject in himself has attracted little attention. Surprisingly, one of the most sympathetic sketches of Rutherford’s life, theology, and politics comes from a modern Anglican bishop, Marcus Loane. Loane’s work, focusing on Rutherford as a churchman, fundamentally accepts a tradition which views Rutherford as a precursor of later Whig liberalism and a posthumous victor whose politics were remarkably close to the constitutionalism Great Britain ultimately came to enjoy following the Glorious Revolution of 1689 (1961:84). Much of Loane’s sympathy for Rutherford stems from Loane’s own evangelical theology, which normally finds itself in greater sympathy with the early Puritans than with either 18th century Latitudinarians, 19th century Tractarians, or 20th century theological liberals. Loane, while writing for a wide audience, may represent a meeting of evangelical piety with the “Whig myth”, which sees Puritan ideas of compact and constitutionalism as a stepping stone to classical liberalism. Yet while perhaps liberalizing Rutherford more than is warranted, Loane’s work is valuable as a short general biography and introduction.
George Hunt’s _Calvinism and the Political Order_ (1965) includes an essay on Rutherford’s politics by J.F. Maclear and mentions Rutherford in several of the other essays in the collection. Maclear notes that in the Scottish context of a weak monarchy pitted against estates, Kirk, and coalitions of powerful nobles, Rutherford is very much a conservative who believed that extant Scottish constitutional institutions sufficed to justify resistance to Charles Stuart (1964:69). Winthrop Hudson, another writer in the Hunt volume, notes a strong kinship between several of Rutherford’s ideas and those of John Locke in the _Two Treatises of Government_. Both writers spoke of government as a compact between people and rulers, and denied that Adam’s dominion over the rest of creation implied the crown’s absolute dominion over his fellow men. Hudson does not make Locke directly dependent on Rutherford, but suggests that Locke imbibed related ideas from the Puritan climate of opinion prevalent during his youth (1964:113).
Ian Michael Smart (1980) sees Rutherford as a key political theorist of the Scottish Covenanters, devoting a section of his survey article to an exposition of the main points of Rutherford’s thought. He interprets Rutherford’s Lex Rex as an attempt to produce an exhaustive refutation of the major English and Scottish advocates of absolute monarchy. He notes that Rutherford and his fellow Covenanters stand in a tradition with continental Reformed monarchomachs and George Buchanan (1980:169-70). He sees Rutherford’s work as most comprehensible if recognized as a product of the period of solidarity between the Scots Covenanters and English Parliament (prior to the rise of Cromwell and the New Model Army), and notes a contrast with the post-Restoration Covenanters. Whereas Rutherford and earlier Monarchomachs held that resistance to a tyrant should be based on a parliament and lesser magistrates, their successors in Scotland after 1660 developed a more popularly based view of resistance (1980:181).
The first 20th century book-length study of Samuel Rutherford is John Coffey’s _Politics, Religion, and the British Revolutions: the mind of Samuel Rutherford_ (1997, Cambridge). Coffey’s project is to place Rutherford in as much of his theological, academic, historical, and political context as possible. He criticizes the 19th century views of Rutherford and/or Puritanism as a precursor of Whig liberalism (Flynn 1920) on which Loane depends, noting that Rutherford was far too bound to a Calvinist Scotland determined to preserve its religious institutions and, if possible, impose them on the rest of Britain (1997:187).
While Rutherford’s place in the taxonomy of political and theological thinkers is clear, certain questions about his political thought remain. Coffey bifurcates his subject between a “reactionary” Rutherford who stood for Scotland as a nation covenanted to the views of John Knox and Andrew Melville, biblicist orthodoxy, and jus divinum Presbyterian church polity versus a “liberal” Rutherford who appealed to natural reason and advocated limited, contractarian government and the right of resistance, noting that Rutherford even described himself as a “man of parts”. Coffey sees in the bifurcation of Rutherford’s mind an important key to the ultimate political failure of the Covenanter and Puritan movements (1997:114ff.).
Application of Alasdair MacIntyre’s contention that tradition defines political discourse(1988:3, 348) reconciles Coffey’s bifurcation of Rutherford’s thought into an underlying unity. Rutherford may be seen as “reactionary” precisely because the modern myth of progress measures “rationality” as the degree of liberation from the demands of revealed theistic religion; whereas for 17th century Calvinists, the “rational soul” was at its most rational in the glorification of its Creator. Rutherford lived and worked in that pre-Spinozan (and pre-Barthian) world in which faith and reason, Scripture and logic, supported each other. The Westminster Confession of Faith speaks of “good and necessary consequence” as a tool which helps divine from Scripture things not necessarily plain therein, and allows that the “light of nature” may provide partial truth, although not the entire content of saving knowledge(1647:I,6). Reformed scholasticism in both Britain and the continent represents a re-discovery of Aristotelian methods as applicable to theology, hence ecclesiastical historians’ comparing it to medieval scholasticism. Thus, an appeal to natural reason in a 17th century Puritan or Covenanting divine is not necessarily a defection from his tradition’s orthodoxy.
While the constitutionalist vision of Rutherford and the monarchomachs anticipated in many ways the institutions of later constitutional liberalism, it nonetheless grew out of the 17th century struggle of the Scottish Reformed church to free itself from the supervision of civil authority. At the time, a foe to the “right” of Rutherford, John Maxwell, was scandalized at the possibility that the king himself, as a member of a Presbyterian church, might be subject to commoners serving as church elders (1691:5). While present-day readers may be intrigued by Rutherford’s good word for democracy, Rutherford’s contemporary to the “left”, John Milton, named him as one of the “new forcers of conscience”, and declared that “new presbyter is but old priest writ large” (Loane 1961:80).
The view of the mid-17th century British world as a group of clerical dictatorships owes much to both monarchists of Maxwell’s stamp and radicals ranging from Milton leftward to the Diggers and Levelers. Yet Rutherford, that “forcer of conscience”, nonetheless spoke of the limits which presbytery imposed on itself:

But we place no sovereignty in presbyteries, but a mere ministerial power of servants, who do not take on them to make laws and religious ceremonies, as prelates do, who indeed make themselves kings and lawgivers in God’s house (LR:211).

...for we deny that Synods or pastors have a peremptory, absolute and
unlimited authority, and power to determine as they please in sermons and
Synods, their power is limited according to the Word of God, and their word is
only to be believed in so far as it is agreeable to the Word of God (Due Right
of Presbyteries 1644:4).

The answer Rutherford and other Reformed writers gave to the claims of absolute authority by either Pope or King was that no such authority was available to any mortal man. While jealous for the independence of their church and determined to defend it against what they saw as illegitimate interference by the state, the Presbyterian clergy nonetheless held themselves accountable to a law above themselves, setting limits to their own powers.

(C). God and Man in Law and Government

The first two of the forty-four questions Rutherford poses concerning government is whether it is warranted by divine and natural law (LR:1). The answer is a simple yes to both, for both Rutherford and his most vehement royalist opponents lived and thought in an inescapably theological context, in which natural law was natural precisely because it represented something “hardwired” into man by God at creation. For this reason, Rutherford sees part of his task as refuting the idea that the Puritan movement reduced the divine commission of the monarch to a bare permission (LR:1980:xxi). But Rutherford, and the tradition in which he stands, also asks how monarchial, aristocratic, and democratic rulers receive the divine commission. His thesis is that civil society and the commission of the ruler are indeed divine and natural in the root, but voluntary in their manner of coalescing (LR:1).

In the first several questions of Lex Rex, Rutherford views government as the means God has ordained for the preservation of the mankind. Along with Buchanan and the Huguenot monarchomachs before him, he accepts that sociality is natural, and that the ruler is under a charge to preserve and protect the community. Against the royalist contention that monarchs receive their authority immediately from God, Rutherford contends that popular consent is a second cause lying between the divine will and the making of a king, or in making some rather than others a group of aristocratic or democratic magistrates:

This is what we say, God by the people, by Nathan the prophet, and by the
servants of David and the states crying, “God save King Solomon!” made
Solomon king [rather than Adonijah]; and here is a real action of the
people. God is the first agent in all acts of the creature. Where a people
maketh choice of a man to be their king, the states do no other thing, under
God, but create this man rather than another; and we cannot here find two
actions, one of God, another of the people; but in one and the same action,
God, by the people’s free suffrages and voices, createth such a man king,
passing by many thousands; and the people are not passive in this action,
because by the authoritative choice of the states the man is made of a
private man and no king, a public person and a crowned king (LR 1644:7).

He notes not only the case of Solomon above, but also those of Abimelech (Judges 9:6); the anointing of Saul (I Sam. 11:15); and that of David himself (I Chron 12:38). Against the royalist contention that the divine anointing of the monarch is immediate, Rutherford argues that it is mediate--along with all other works of divine providence. Elsewhere in his argument, Rutherford charges that if kings are made immediately by God without popular consent, one might as well argue that God preserves human life without food and sleep (LR 1644:6).

The presence of human means in the divine end of establishing a government is by no means novel or inconsistent with the Reformed doctrine of providence. As was noted elsewhere, the Reformed saw God as working through secondary causes to bring about His purposes. Just as the preaching of the Gospel is the means whereby God actualizes the salvation of the elect, so are the people themselves instruments of God’s purpose of preserving them by means of government. He notes that in Scripture, only prophets were immediately anointed by God, but that throughout the Old Testament, kings were made and chosen by both the acclamation or choice of the people and an anointing administered by prophets and priests. He challenges the royalists to find a voice from heaven or prophets to anoint their rulers--a challenge he knows they cannot meet, since Anglican as well as Reformed doctrine saw the cessation of the prophetic office as a corollary of the sufficiency of Scripture (LR 1644:6-9).

Maxwell’s fear of “democraticall government” does not embarrass Rutherford. In viewing the popular choice as a providential means towards the establishment of a government, Rutherford asserts the ius divino character of aristocratic and democratic governments as well as monarchial ones. This is by no means as radical as it seems. In the 17th century, the absence of monarchy in such states as the Netherlands, the Swiss Cantons, and Venice was known and accepted in the diplomacy of the era. Rutherford expects even his opponents to find absurd the notion that the republican Netherlands of his day lacked a lawful magistrate, and also seems to expect that such an example is unanswerable (LR:27-28). For Rutherford, anarchy, not aristocracy or democracy, is the unthinkable condition for mankind.

A word may be said about Rutherford’s anthropology apart from his view of man as social. Rutherford speaks much throughout _Lex Rex_ about a natural liberty of man, but by the standards of a later liberalism, this natural liberty is highly qualified (LR. 51). He does not believe in an unfettered free will of post-lapsarian man, for his communion would have tolerated no such doctrine, and Rutherford’s polemics against Arminianism suffice to show his abhorrence of such a view. For him, men are born free only in that they are not subject to specific political rulers by birth, although even without the fall of Adam, parental and marital government would remain. However, although Adam’s fall brought sin and misery to his posterity, Rutherford holds that the image of God remains, rendering man a res sacra which cannot be bought and sold (LR:50ff.).

Rutherford is aware of an argument that men are slaves by nature, although it is not certain that it is specifically Robert Filmer from whom he has heard it. Rutherford’s refutation of the doctrine is also brief. He notes that Adam’s fall, not his creation, requires the establishment of governments with penal powers, and lies behind the institution of slavery. The slavery of which Rutherford takes note is not an Aristotelian one whereby some are slaves by nature, but the debt slavery found among the Old Testament Hebrews and slavery resulting from capture in war. It is also a condition which would not exist but for the fall of Adam into the state of sin and misery. But even this slavery is regulated, and an absolute dominion of master over slave is repugnant to Christianity, for the righteous man is merciful even to his animals, and a slave, if a Christian, remains the temple of the Holy Spirit. Since Scripture sees the absence of government as a curse and freedom from servitude as a blessing, servitude and being under lawful government cannot be the same. Hence, the power of kings and magistrates can only be “fiduciary and ministerial [rather] than masterly” (LR:64-65).

The law of nature, worked into the makeup of man at creation, confirms this, since man is a social creature, and God intends for man to enjoy peace. Only the institution of government can fulfill this law. But there is a crucial difference between the royalists and their monarchomach opponents:

Now God only by a divine law can lay a band of subjection on the conscience,
tying men to guilt and punishment if they transgress (LR 1644:1).

This statement from Lex Rex merits is best understood in concert with the confession Rutherford helped frame:

God alone is Lord of the conscience, and hath left it free from the doctrines
and commandments of men, which are, in anything, contrary to His Word; or
beside it, if matters of faith and worship. So that to believe, or to obey
such commands, out of conscience, is to betray true liberty of conscience: and
the requiring of an implicit faith, and an absolute and blind obedience, is to
destroy liberty of conscience, and reason also (WCF 1647: xx:2).

The Westminster divines’ attack on “blind obedience” and their solicitude for liberty of conscience and reason should not blind the modern reader to a real difference between the 17th and 21st centuries in the matter of liberty. The freedom of conscience of which Rutherford and the Westminster divines spoke was not the modern liberal’s openness to all shades of theological opinion, for God’s lordship over the conscience was understood as meaning that the conscience of the Christian was bound to accept whatsoever the Holy Spirit had revealed in Scripture, and by the same token, reject that which was repugnant to divine revelation. The Reformed thought of liberty within limits rather than of liberty as an absolute good in itself, and these divinely imposed limits applied to political life as well as to all other areas of life.

It should also be noted that the theology of British Puritanism, including Scots Presbyterianism, as expressed in the Westminster Confession, spoke of human nature in a fourfold state of innocency, depravity, redemption, and glorification. In innocency, Adam was not guilty of depravity or moral turpitude before God , yet capable of sinning (which, of course, he did). In his fallen state, man is not capable of not sinning, and thereby is under God’s wrath and curse. This fallen state of depravity is the one into which all mankind since the fall of Adam is born, and in which much of it remains. In the redeemed state, the possibility to not sin arises again, although the Reformed confession denied the possibility of a sinless perfection or supererogatory merit in this life, believers always standing in God’s favor via the merit of Christ rather than their own. Finally, the redeemed are destined to the state of glory, in which they will no longer be able to sin.

The Reformed doctrine of total depravity since the fall of Adam comes into play. As the second quote at the head of this chapter indicates, human nature after the fall of Adam could not be trusted with too much power, even redeemed human nature. Hallowell and Porter are incorrect to assert that “high Calvinism” supports Hobbes’ argument for the supremacy of the sovereign (1997:333). If anything, Rutherford was a “higher Calvinist” than Hobbes, even a shaper of what Calvinism would be for the centuries following via his role in the Westminster Assembly. If Hobbes’ mistrust of human nature calls for a strong ruler to check the dangerous passions of man, a similar mistrust of postlapsarian human nature in de Bèze, Althusius, and Rutherford leads these disciples of Calvin to search for means whereby no single sinner or small group of sinners might destroy multitudes. The society which most approximated the divine pattern was not one in which certain members of society could “play God”, for Puritanism was all too aware that Genesis 3 reported “playing God” as the original temptation of the Old Deluder. Rather, the godly society was one in which all members, including those charged with government, recognized their limits under God.

(D). Scriptural Hermeneutics in 17th Century Political Debate

In Reformed theology, the fallen state of man necessitates special revelation (Scripture) in order to guide human beings to the knowledge of God and salvation (WCF 1647:I,1). Although appeals to natural law abound not only in Rutherford, but also in Buchanan, Althusius, de Bèze, and other Reformed writers, Reformed theology held that since the fall of Adam, the moral sense of man is subject to perversion, and as capable of misleading man as it is of leading. Scripture, therefore, offered the mind of God on all matters of which it spoke. It therefore could not be ignored in the political debates of the time. Indeed, The politico-theological debate of the 16th and 17th centuries may be considered a prolonged, civilization-wide dispute over the proper interpretation of Romans 13:1-5:

Let every soul be subject unto the higher powers. For there is no power but
of God: the powers that be are ordained of God. Whosoever resisteth the
power, resisteth the ordinance of God: and they that resist shall receive to
themselves damnation. For rulers are not a terror to good works, but to
evil. Wilt thou then not be afraid of the power? do that which is good, and
thou shalt have praise of the same: For he is the minister of God to thee for
good. But if thou do that which is evil, be afraid; for he beareth not the
sword in vain: for he is the minister of God, a revenger to execute wrath
upon him that doeth evil. (AV)

If the key Pauline clause for the royalists was let every soul be subject, the key clause for the monarchomachs was for he is the minister of God to thee for good, with the stress on the word "good". The same New Testament read by both sides of the argument also contained Peter’s retort to the Sanhedrin’s injunction “to obey God rather than men.” (Ac. 5:29, AV). But this leads neither side to conclude, in modern fashion, that the Scriptures are self-contradictory, and hence to be abandoned as a guide to such practical ethical questions as public law. Neither side possessed a simple-minded, unproblematic textual approach, and the attempt to find a proto-enlightenment or the retreat of God as a political actor in the monarchomach tradition fails to do justice to the shared attitudes which permitted Rutherford’s polemics to “hit home” with his contemporaries, most of whom would have identified themselves as Protestant Christians of one kind or another, and who would have understood that Scripture is to be read and heard with reverence.

Question XXXIII of Lex Rex explores whether or not Romans 13 permits resistance to the monarch. He notes chiefly that the “higher powers” are plural, and finds in them inferior judges and lesser magistrates as well as kings. Comparing First Timothy 2:1-2 as a parallel passage, Rutherford notes that Paul speaks of “all in authority”, embracing again lesser officers of the state. Rutherford, like Buchanan before him, notes that the same Nero who reigned when Paul wrote had a senate alongside him, which had the right to declare him an enemy of Rome as well as its father. Thus, the people of Scotland, in joining with the estates of the land in rebellion against Charles I, violate neither divine nor natural law as properly understood, for the estates and lesser magistrates leading the revolt are also “higher powers” to be obeyed.

Rutherford engages in a battle of texts with William Barclay and Hugo Grotius. In Question XVIII of Lex Rex, Rutherford argues that recognized authorities in both the Roman Catholic and Reformed communions see a divine anointing of lesser magistrates, and apply Romans 13 to masters and magistrates as well as to monarchs. Rutherford argues that Scripture makes the judge speak for God rather than for the supreme magistrate or monarch alone. Applying a favored principle of using Scripture to interpret Scripture, her notes that Psalm 82 speaks of the varied judges of the earth as “gods”, which he takes as an analogical description underscoring the independent authority of lesser magistrates as well as kings. He notes that Jehosaphat of Judah, in appointing judges, charged them that they judge for God, echoing Deuteronomy 1:17. In these texts, Rutherford sees all charged with the good of the community as possessing a divine call, rather than having their call as a derivative of that of the king.

Rutherford’s dispute with Barclay and Grotius deals with divergent readings of the mishpat hammelek (“law or manner of a king”) passage in First Samuel 8. Barclay is seen as using the Samuel passage to describe the lawful power of the monarch as against Deuteronomy 17, in which the office is described; while Grotius’ arguments in _De Iure Belli ac Pacis_ are seen as treating the Samuel passage also as a listing of royal prerogatives and proof that the lesser magistrate is a mere “private person” vis-à-vis the king, and that the people have recourse only to “tears and prayers” when under tyranny. Rutherford argues that Barclay’s distinction between office and power is unwarranted, for it makes God give moral warrant for sinful tyranny. Rutherford views the Deuteronomy passage, describing a king under torah who is brother rather than master to his people, as the divinely given normative command to which earthly rulers must conform, while Samuel’s purpose was to dissuade the people from placing themselves under a tyrannous king (LR: 72-73). Samuel’s warning to the people in the passage is seen as a prophesy of the decline of Saul’s monarchy, which was replaced by that of David. Its fulfillment, after Saul’s arrogating to himself priestly prerogatives, provides an important precedent for such a removal, although David’s example of refusal to attack God’s anointed also shows that removal of a perjured king is not to be done precipitously or rashly. Elsewhere, he charges that the royalist contention that the king enjoys prerogatives above the law makes monarchs neither the imitators of David nor reflections of Christ, but imitators of Babylonian tyranny (LR:109).

Rutherford’s sensitivity to the nuances of Hebrew grammar and vocabulary is striking. He is aware that the term mishpat covers a variety of meanings, including “judgment”, “manner”, and “law”. In the mishpat hammelek of First Samuel 8, Rutherford follows Buchanan, seeing Scripture as speaking of the empirical “manner” of the monarch rather than as a divine donation of royal prerogatives to which the monarch may justly claim a right, and gleefully points out the royalists’ apparent insensitivity to Scriptural context (LR:8, 73ff.). Other examples from the historical books provide evidence that resistance to unlawful decrees also took place in the Israelite theocracy, including the people’s refusal to kill Jonathan for breaking Saul’s rash injunction (LR:208); David’s maintenance of an army apart from Saul’s (LR: 167); and the anointing of monarchs by the people as well as by prophets and priests (LR:11). The flow of biblical history and prophecy show more the judgment of God against the wicked rulers (and people) of ancient times than any supposed “blessings” offered by prerogative-seeking monarchs (LR:211 ff.).

(E). The Fifth Commandment and the Divine Ends of Government

Early modern thinkers found the ius divino a warrant for government in the fifth commandment, Honor thy father and mother (Exodus 20:12; Deuteronomy 5:16). This derivation of civil from parental authority was by no means rare or unique to British Puritanism. Scriptural descriptions of rulers as “nursing fathers” and the easy juxtaposition of admonitions to children, parents, slaves, and masters in the Pauline letters led the Reformed divines to see the fifth commandment as covering all relations between those holding authority and those under it. Before Rutherford, the Heidelberg Catechism makes a similar point about the fifth commandment, as does the Swiss theologian Johannes Wollebius (d. 1629--Beardslee 1977:230ff.). It is also behind the common theological position that magistrates and princes were to be obeyed by the common people. Rutherford stands in this tradition of thought. The comparison of family and civil government arises in the second section of _Lex Rex_, where Rutherford argues that family government is the precise point where it is seen that civil society is natural. He defends democratic and aristocratic polities as acting within the meaning of the fifth commandment in their selection of magistrates (LR:5).

But Rutherford, in Question XV of _Lex Rex_, treats the analogy between civil and paternal rule in detail, arguing that it is an analogy only, and not a formal and essential identification of the two types of authority. The analogy lies in that just as fathers protect and nurture their children, so do rulers protect and nurture the public. But differences between paternal and civil power are found in that fathers remain fathers even if insane or criminal for as long as their children live, since their paternal position is purely natural; while the laws of most states permit the removal of kings and magistrates for such deficiencies, since their power is by the suffrage of the people. The Scottish divine happily notes that even such royalists as Arnisaeus, Grotius, and Barclay permit the deposition of the monarch should he sell his subjects or violate the express conditions to which he consented when enthroned.

Rutherford also holds that magistrates and leaders other than kings are also, by analogy, fathers, and that the obedience to them is also covered by the fifth commandment. By the same token, Rutherford observes from First Corinthians 4:15 that pastors are also fathers, yet may still be cast out of the church should they “turn wolf” and damage the flock by heretical doctrine or scandal. Similarly, the Scriptures also speak of tyrannous judges as leopards and wolves, but this does not mean they are essentially and formally such.

Question XV of Lex Rex also involves a discussion of Adam’s paternity and the nature of his authority over primitive mankind. While confessing Adam’s paternity over the entire human race, he denies that this implies the monarchial rights of the sort Filmer defended in Patriarcha, anticipating certain arguments Locke sets forth in the First Treatise:

But 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 a father and a 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; or suppose Adam was living to this day, that all kings that hath been
since, and now are, held their crowns of him, and had no more kingly power
than inferior judges in Scotland have, under our sovereign king Charles, for
so all hath been, and now are, lawful kings, should be unjust usurpers; for if
fatherly power be the first and native power of commanding, it is against
nature that a monarch who is not my father by generation, should take that
power from me, and be a king over me and my children (LR:62).

Two important differences between royal and paternal power lie in the latter being natural and universal, applicable even if Adam had not sinned; while the former, along with other forms of civil power, arises only after Adam’s fall into sin, and involves the power of the sword mentioned in Romans 13. Rutherford argues that had God given Adam power to kill Cain for the murder of Abel, this would have been a donation separate from his paternal position. This is because had Adam remained in the state of innocency, his posterity would not have known sin and violence, and hence would have no need of the sword-wielding magistrate. Rutherford remains very much in the Augustinian tradition of viewing the power of the sword and lawful war as given to men in the state of sin.

Rutherford also finds warrant in Genesis that magistracy and the power of the sword may exist apart from royal dominion. To Maxwell’s contention that the institution of the death penalty for murder in Genesis 9 indicates that Noah was a king, Rutherford argues that a line of distinguished commentators from Eusebius, Jerome, and Augustine down to Jean Calvin find no king in Scripture prior to Nimrod (Gn. 10:8-12), the grandson of Ham whose story is part of that of the post-deluvian repopulation of the earth, and, according to a strict reading of the numbers in the patriarchal narrative, may have begun to reign as king over Nineveh while Noah was yet alive (LR:27-28). This shows both that the power of the sword implicit in the post-deluvian institution of the death penalty implies only government per se, and that neither patriarchal right and position provide the foundation of monarchy.

Although most modern (and post-modern) Americans are raised to see in Puritanism a harsh and authoritarian system, Rutherford and his contemporaries were scrupulous in affirming that rulers, parents, and masters are quite as capable of violating the fifth commandment as citizens, children, and servants. The Westminster Assembly, which Rutherford attended as a Scottish commissioner, set forth in its Larger Catechism a listing of the sins of superiors nearly twice as long as its listing of the sins against which it warns inferiors (1647:QA 123-133). This represents a sensitivity to the divine purpose expressed in the commandment itself as well as in the midrash offered in such passages as Ephesians 6, namely, that the commandment is offered to preserve the life of the obedient rather than as a warrant for superiors to destroy their inferiors.

(F) The Political Covenant and the role of the Lesser Magistrate

That the theology which Rutherford inherited from his tradition had long been accustomed to describing God’s relationship with man in terms of a covenant, or legal framework, greatly helped the Scottish divine in the task of discovering the lawful limits of the ruler’s power. The chief difference between Buchanan’s and Rutherford’s understanding of the political compact and the political supremacy of law is that Rutherford is the beneficiary of somewhat more time during which his community reflected on themes which Buchanan and the French Huguenots set forth. During the five decades between the death of Buchanan and the signing of the Scottish National Covenant, the covenantal themes present in Zwingli, Bullinger, and other early reformers had been worked out into a developed system of doctrine, which came to influence the way members of the Reformed communion understood their place as members of political society.

While governments are made by the people entering into a contract, Rutherford does not allow all natural or divine right to be surrendered in toto to the sovereign. Retention of rights by the people and lesser magistrates is the means whereby the arbitrary exercise of royal power is checked, and the monarch subjected to civil penalties should he violate the political covenant (LR:78ff.). The political compact also involves analogies with the covenant between God and man:

And this is clear by all covenants in the word of God: even the covenant
between God and man is in like manner mutual,--”I will be your God, and ye
shall be my people.” This covenant is so mutual, that if the people break the
covenant, God is loosed from his part of the covenant, Zech. xi. 10. The
covenant giveth to the believer a sort of action of law, and jus quoddam, to
plead with God in respect of his fidelity to stand to that covenant that
bindeth him by reason of his fidelity...and far more a covenant giveth ground
of a civil action and claim to a people and the free estates against a king,
seduced by wicked counsel to make war against the land, whereas he did swear by
the most high God, that he should be a father and protector of the church of
God (LR:54).

The elements of the covenant include legal stipulations binding the various parties, mutual obligation, the right to plead according to the stipulations of the covenant, and most importantly, a solemn religious oath. In Rutherford’s context, the oath in question is the king’s coronation oath, which Rutherford and other Scots believed perjured when Charles I attempted to impose the episcopal service book on Scotland, waged war against the Estates of the two British kingdoms, and left off his punitive campaigns against Irish rebels who were massacring Protestant settlers in Ireland, many of whom were Scots (LR: 158, 161, 165).

The coronation oath renders the king a vassal to both God and the state (LR: 201). To the objection of Arnisaeus that only God may punish the king, Rutherford replies that the same logic would hold that a similar immediate divine action is necessary for the removal of a scandalous clergyman, or that the husbandman is unnecessary for God to make a vineyard fruitful. Rutherford does not elaborate on the removal of the scandalous clergyman, but it is certain that he was thinking of the Presbyterian congregation’s right to petition presbytery for investigation and action in such a case.

Examples from the life of the Israelite monarchy are of great importance to Rutherford’s argument. He observes that anointing alone did not suffice to make kings of Saul and David, for the monarchs also covenanted with the elders of Israel, understood as representatives of the people, at Mizpeh and Hebron respectively (LR:8-9). He also reduces the arguments of royalists such as Barclay, Ferne, and Arnisaeus to absurdity by pointing to the covenant made between Jehoiada and the people to serve God and destroy the idols of Ba’al (II Kings 11), which, by the royalists’ logic, would oblige only the king of Judah to maintain the true religion, and not his people (LR:55).

Rutherford thus provides a good example of why Elazar and others are correct in pointing to a connection between covenant theology and 17th century theories of public law. The Reformed saw the divine covenant as a legal framework through which God dealt with man, covering not only the duty of man and the penalties involved in its dereliction, but also explaining the redemptive work of Christ in terms of the restoration of a broken covenant, and the sacraments as signs and seals of this covenant. Rutherford calls attention to a pre-existing legal framework by which the monarch rules, and which binds him both to his subjects and God. As a fallen, human subject of God, the monarch is not free from penalty should he violate the covenant made with the other parties of the community, namely, the people and God. The protection and strengthening of the legal limits on power which keep the monarch within the bounds of the covenant thus became, for the embattled Scots Presbyterians, the central political concern.

A central concept in both the theological covenantalism and the political thought of the era involves the public person. In the political and juristic language of the 17th century, public persons included all empowered to represent and act on behalf of a wider group. The Reformed theologians habitually spoke of Jesus Christ as the Mediator of the covenant of grace, representing all the elect before God the Father, and thus acting as the ultimate “public person”. The use of the language of anointing used in Scripture for the prophets, priests, and kings of the Old Testament and for Jesus Christ himself is applied to rulers and magistrates by the early modern writers because, as heirs of a millennium of Christendom, they call on powerholders to model and typify Christ. But, by the same token, this Christocentric covenantalism may be one reason why Rutherford reserves the right of royal birth to only Jesus Christ. Other kings rule only conditionally, on the sufferance of the people. While censure and the sword to punish evildoers are communicable to men, the headship of Christ is communicable to “no created shoulders”(LR:211). The fiduciary power kings receive from God is always limited by the divine will as revealed in Scripture, and by the covenant made with the people and/or their representatives.

In Question XX of Lex Rex, Rutherford also uses the language of public persons. He agrees with his royalist opponents that the monarch is a “public person” representing the whole community. But he and other monarchomach thinkers differ with the royalists in that they see a divine anointing of lesser magistrates as public persons as well. Charged with modeling Christ no less than the king, lesser magistrates have the call to defend the community and subdue its enemies (language used in the Westminster Catechisms of Christ in his kingly office), including, if necessary, the king should he become a danger to the community.

In discussing lesser magistrates and their role in the organization of the political community, Rutherford points towards the separation of powers which would find its ultimate expression in American constitutionalism. Against the royalists, he notes that the cities of both England and Scotland selected magistrates who were not necessarily the creatures of the monarch, and that judges sometimes rule against the king in disputes between the king and private parties (LR:168). Parliament is also an independent center of power. That it deposed Mary of Guise, accepted the Reformation and promulgated the Confession of 1560, and tried Mary Stuart for the murder of Henry Darnley clearly point to its independent responsibility for upholding the law of Scotland (LR:217-20). As “public persons” enjoying a divine commission to discourage evil, lesser magistrates may lead the commons in revolt against a king who has violated the covenant joining him to his people. This justifies the war of the Scottish estates and English Parliament against their king (LR:187ff.), especially since Charles’ attempt to impose alien ecclesiastical usages on the Scottish church and destroy the traditional constitutions of the two kingdoms represents a violation of the covenant implied in the coronation oath.

Failure to protect the people--including their religion, which in Scotland’s case meant Presbyterianism--means that rebellion against the king and his removal is permissible under certain conditions. In this, one may safely guess that the attempt of Charles I to impose alien forms on the Scots lay uppermost in Rutherford’s mind when he raised the issue of Saul’s rashness. Questions XXVII-XXXVII of Lex Rex consist of a long argument for the people’s right of self defense against their ruler, including an appeal to the natural right of self-defense, applying it to the commonwealths of Scotland and England in their struggle with the throne.

Although Smart is correct in seeing Rutherford’s and other Covenanter arguments for resistance as based on Scripture and reason (1980:186--perhaps Scripturally informed reason might be a more accurate description), historical precedent also informs _Lex Rex_, albeit in a smaller way than in present in George Buchanan’s _De Iure Regni_ or François Hotman’s _Francogallia_. In Question XLIII of _Lex Rex_, Rutherford denies the assertion of James VI/I in _Basilicon Doron_ that Fergus I conquered Scotland, but quotes Buchanan to the effect that the early Scottish kings convened and consulted with parliaments--although much of Buchanan’s _Historia_, which Rutherford uses, includes much purely legendary and mythical material concerning Scottish monarchs in pre-Christian times. But Rutherford is on firm ground in noting that the estates of Scotland exercised real power during the period between the Reformation and his own era.

G) Theology, Theocracy, and Constitutionalism

Many of the ideas of later contractarian liberal constitutionalism are present in Rutherford and his fellow Reformed monarchomachs. The view of government as a compact between ruler and ruled, the political supremacy of public law, and the consent of the governed are present a generation before Locke--and Rutherford's own authorities stretch the roots of these ideals even further back in history. Rutherford’s view of lesser magistrates and the estates as representing the people harks both backwards to the federal principle of Covenantal theology and to the theory of government enshrined in later British and American constitutionalisms. At the same time, the authorities whom Rutherford cites, his commonplaces, his method of argument, all harken back to far older models, supporting Antony Black’s contention that political republicanism (and constitutionalism) can be expressed as easily in a Christian as in an enlightenment idiom.

If many features of Rutherford’s crowned constitutionalism anticipate Locke, they differ from post-enlightenment liberalism in that Rutherford and his coreligionists thought in terms of a world subject to divine authority revealed in Scripture, not in terms of the autonomous human person. Here, perhaps, is the key difference between the constitutionalism of the Calvinists and that of the enlightenment liberal. The liberty which the Reformed monarchomachs sought was not an end in itself, but an instrument whereby the Reformed faith might be freely preached and practiced, and man liberated to serve, glorify, and enjoy his creator. The Reformed believer saw liberty as the liberty to do good, as defined by divine law, not as liberty to define his own standards and goals. Rutherford’s use of the language of natural liberty represents no retreat from the divine sovereignty affirmed by his church. In _Lex Rex_, liberty is not opposed to either God, government per se, or obligation, but to the prerogative of rulers set forth by Maxwell, Arnisaeus, and other theorists of royal absolutism. Rutherford does not question God’s ownership of His human creatures, but denies that any human power holder possesses such a God-like mastery over his fellow men. Rutherford’s argument with the royalists does not take place on the high plane of a discussion of the nature of God, but on the very mundane one of balancing the prerogatives of the ruler with those of the people.

Covenantalism, which many have identified as the key theological doctrine informing Reformed exaltation of law as a political institution, was itself the result of the careful attention which the Reformed theologians paid to Scripture. It was part of the same ad fontes project which led to the rejection of an episcopate well over a millennium old, the church calendar, liturgical art, clerical vestments, and numerous other traditions. In Rutherford and other Reformed writers, sensitivity to a legal framework through which God governs His human creatures led to an awareness that neither liberty nor power can be an end in itself, but must always relate to a host of obligations and responsibilities to God and fellow men, who may be superiors, equals, or inferiors. If the Puritans were killjoys to 17th century fops and singers of bawdy ballads, they were also killjoys to monarchs who sought to replace ancient laws and local liberties with personal prerogative.

The Calvinist Scripture, understood as the voice of God the Holy Spirit, did not offer a blank check to earthly power holders, including the ministers and ruling elders who sat in presbytery. The Scriptural examples to which royalists appealed were checked against Scriptural precepts which taught that power was a divine trust held for the preservation of man and society rather than the grandeur and majesty of fathers, masters, magistrates, and kings. Scriptural example, as Rutherford’s reading of Samuel, Kings, and Chronicles shows, could also take with one hand what it seemingly granted to the royalists with the other. In addition, the Reformed mistrust of fallen human nature rendered careful attention to the revealed Word of God all the more important, since acceptance of merely human tradition in both church and state had fostered the growth of numerous abuses which required reform. Divine precept which enjoins honor and respect from inferiors turns out to cut in two directions, demanding that superiors behave justly towards those over whom they have charge. In the end, government is a system of limits, not least of which are the limits to which governors themselves submit.


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