Lex, Rex

Summary

Lex, Rex: The Law and the Prince is Samuel Rutherford's answer, printed in London in October 1644, to Sacro-sancta Regum Majestas, a defence of royal absolutism by John Maxwell, the deposed bishop of Ross whom the Glasgow Assembly of 1638 had excommunicated. Rutherford wrote while Scotland and the English Parliament were allied against Charles I under the Solemn League and Covenant, and his long subtitle presents the book as a justification of Scotland's defensive wars and of its army's march to help its brethren in England. The library text is the 1644 edition in original spelling, complete except for the marginal notes. The book proceeds by forty-four disputed questions in the manner of the schools. Each states a question, lays down numbered assertions, and answers objections from Maxwell (whom Rutherford calls the P. Prelate) and from other royalist writers such as William Barclay, Henry Ferne and Edward Symmons. Scripture is the chief authority, set beside Aristotle, Roman law, the Fathers and Scottish history. The opening questions hold that government in general is from God and agreeable to the law of nature, but that the particular form of government and the choice of the person who rules come from God by means of the people. Men are born equally free, Rutherford argues, so no man is by nature king over another. The middle questions treat the king's power as conditional and held in trust. The people make a king by covenant, as Israel's elders did with David at Hebron; his dominion is fiduciary and ministerial rather than that of a master over goods; and the law of the king in Deuteronomy 17 binds him. Inferior judges and parliaments are true judges, not the king's servants. In question XXVI Rutherford concludes that the law stands above the king in constitution, direction and limitation, though not in the sense that a king punishes himself. The later questions apply this to resistance. Rutherford distinguishes the king's person from his office and argues that Romans 13 commands obedience to lawful power, not to its abuse. A people, and their estates, may defend themselves by arms against a ruler who turns the sword on the commonwealth. A private man should first plead and, where he can, flee before using force, as David did; a whole community, with its aged, sick and infants, is not bound to flee, but the people should suffer much before they resume their power. Patient suffering and lawful self-defence, he says, can stand together in a Christian. The closing questions ask whether monarchy is best (he judges a lawful and limited monarchy best for fallen men), deny borrowing Jesuit doctrine, and set out the laws and coronation oath of Scotland. After the Restoration the book was ordered to be burned, and Rutherford was summoned on a charge of treason but died before trial. Lex, Rex is regarded as one of the fullest statements of Reformed resistance theory and of the principle that the ruler is under the law.

Plot or Argument

• Preface: truth to Christ and the charge of treason

  Rutherford answers the charge that his cause is sedition by recalling that Christ and the apostles were called traitors. He describes the times as an advance of arbitrary government and prelacy in Britain and introduces his opponent, Maxwell, the excommunicated bishop of Ross, whose book he will answer point by point. A long list of propositions sets out what the Scottish Covenanters had done and why they held it lawful.

• Questions I–V: the origin of government

  Government in general is a divine ordinance, warranted by Romans 13 and by the law of nature, which is itself a divine law. Civil power is from God in its root because God made man a social creature. Yet no law of nature sets one man over another, so the particular forms of monarchy, aristocracy and democracy, and the choice of a ruler, come by the free consent of a community. Rutherford rejects Maxwell's claim that kings are from God immediately and not from the people.

• Questions VI–XIII: election, birth and conquest

  God makes kings, but by means of the people's choice, as Saul and David were anointed and then made king by Israel. Royal birth is not equivalent to divine anointing, and a hereditary line rests on an original election by the people. Conquest alone gives no just title to a crown. Rutherford examines Old Testament kings in detail to show the people's part in every lawful kingship.

• Questions XIV–XVIII: covenant and trust

  The king is made king conditionally, by a covenant with the people that binds him as well as them; the covenants of David at Hebron and of Joash under Jehoiada are his chief examples. The king is a father, tutor and guardian of the people, not their lord and owner, and his power is fiduciary, so that power abused may be taken back. Question XVIII reads the manner of the king in 1 Samuel 8 as a description of what kings would do, not a grant of right, and sets against it the law of the king in Deuteronomy 17.

• Questions XIX–XXVII: law, parliaments and judges

  The people as a whole are above the king in power and dignity, as the end is above the means. Inferior judges hold their office from God and the community, not merely as the king's deputies, and parliaments share in the making of law. The king's power is limited, not absolute; he has no prerogative to dispense with law; and in question XXVI the law has a supremacy over him in constitution, direction and limitation. The king is not the sole and final interpreter of the law.

• Questions XXVIII–XXXVII: defensive war and Romans 13

  Wars raised by the estates for their own just defence against a king's armies are not rebellion. Rutherford separates the king's person from his office, rejects passive obedience as the only Christian response, and grounds a natural right of self-defence against unjust violence. Romans 13 binds subjects to lawful power, and the higher powers include inferior magistrates, not the king alone. The patience of the early martyrs does not forbid defence when the laws of a land permit it, the power of war does not belong to the king alone, and Scotland may lawfully help its neighbours in England.

• Questions XXXVIII–XLIV: monarchy, Christ's kingship and Scotland

  Rutherford judges a lawful and limited monarchy best for fallen men, while defending the lawfulness of other forms. He denies that the king has prerogatives above law, argues that the coronation oath binds, and answers Maxwell's charge that Presbyterians borrow Jesuit doctrine. A question on Christ's kingship over Christian rulers precedes a historical review of Scottish laws, parliaments and coronation customs, including the oath of Charles I. Question XLIV closes with short corollaries.

Characters

• John Maxwell, opponent

  Deposed bishop of Ross, author of Sacro-sancta Regum Majestas (1644); Rutherford calls him the P. Prelate and answers him question by question.

• Charles I, reigning king

  King of Scotland and England, whose coronation oath and use of armed force against the Scots and the English Parliament are discussed in the closing questions.

• David, scriptural exemplar

  King of Israel, whose covenant with the elders at Hebron and whose flight from Saul supply Rutherford's main models of a covenanted king and lawful self-defence.

• Saul, scriptural exemplar

  First king of Israel, whose persecution of David is read as a case of a ruler turning his sword against an innocent subject.

• William Barclay, royalist authority

  Scottish jurist in France whose arguments against resistance to kings Rutherford sets out and refutes.

• Henry Ferne, royalist authority

  English royalist divine (D. Fern in the text) whose pamphlets against defensive arms are answered in the questions on resistance.

• Hugo Grotius, authority and foil

  Dutch jurist whose On the Law of War and Peace is cited both against Rutherford's opponents and as a royalist source to be corrected.

Lessons

• The ruler stands under the law he enforces

  Rutherford's title reverses the royalist maxim that the king is the law: the law is king. In question XXVI he argues that a king exists only by a law that makes this man rather than another king, so the law is prior to him and limits him. The king may be called a living law, but only as the law put into practice.

  • What does Rutherford mean by saying the king as king is a living law, and why does he think this supports rather than undercuts the supremacy of law?
  • Which of his four senses of supremacy (constitution, direction, limitation, coaction) does he deny to the law, and why?
  • How does the coronation oath of Charles I, described near the end, fit his argument?

• Authority comes from God by way of the people

  Rutherford keeps two claims together that his opponents set against each other. Government is God's ordinance, and Romans 13 binds the conscience to it; yet God gives a particular ruler through the consent of a community, as Israel made Saul and David kings. A covenant between king and people, he argues, binds both sides before God.

  • How does Rutherford use the covenant at Hebron in 2 Samuel 5 to show that kingship is conditional?
  • Why does he insist that men are born equally free, and what follows from it for hereditary monarchy?
  • Does locating power first in the people make the ruler less, or more, accountable to God in Rutherford's view?

• Distinguishing the office from the person

  The heart of Rutherford's case for defensive war is a distinction: the office of the king is from God and must be obeyed, but a ruler who commands unlawful violence is not using that office. Resisting the abuse, he argues, is not resisting the ordinance. He sets limits: a private man must first plead and, where flight is possible, flee before using force, and a people should suffer much before acting through their estates.

  • How does Rutherford read Romans 13:1-7, and how did the royalists he answers read it?
  • Why does he say patient suffering and self-defence can both be acts of grace in the same Christian, and why does question XXXI say a whole community is not bound to flee as a private man may?
  • What safeguards does he build in against private rebellion?

• Disputation as a way of reasoning in public

  Lex, Rex is written as forty-four disputed questions, each with assertions, objections and answers. The form makes Rutherford state his opponents' arguments, often in their own words, before replying. Following one question through shows how seventeenth-century divines argued from Scripture, natural law, Roman law and history together.

  • Choose one question and list its assertions and the objections answered. Which objection seems strongest?
  • Where does Rutherford rest on Scripture, and where on reason or the law of nations?
  • How does the sharp, polemical tone toward Maxwell affect the argument?

Context

In 1637 the imposition of a new Prayer Book on the Church of Scotland provoked riots in Edinburgh, and in 1638 nobles, ministers and burgesses signed the National Covenant. The Glasgow Assembly of that year abolished episcopacy and deposed the bishops, among them John Maxwell of Ross. The Bishops' Wars of 1639–40 followed, and in 1643 Scotland and the English Parliament, then at war with Charles I, joined in the Solemn League and Covenant; a Scottish army crossed into England in January 1644. Royalist writers in England and Scotland argued that subjects might never take arms against their king, and Rutherford wrote to answer them from Scripture, natural law and the laws of Scotland. He drew on an older Reformed and Scottish tradition, including Calvin's teaching on lesser magistrates and George Buchanan's De Jure Regni apud Scotos.

Composition

Rutherford wrote the book in London while serving as a Scottish commissioner to the Westminster Assembly. Maxwell's Sacro-sancta Regum Majestas had appeared at Oxford in 1644, and Lex, Rex, printed for John Field and dated 7 October 1644 on its title page, answers it directly. The title page in the library text names no author and describes the work as published by authority. The library text is the Text Creation Partnership transcription of the 1644 edition, in original spelling, without the marginal notes.

Reception

The book was read widely among Covenanters and Parliamentarians. After the Restoration of Charles II in 1660 it was condemned and publicly burned, and Rutherford was deprived of his posts and cited for treason; he died in 1661 before he could answer the summons. Later Reformed writers, the Scottish Covenanting tradition and historians of political thought have treated it as a major statement of constitutional monarchy and of the right of defensive resistance, and scholars continue to debate how far it anticipates Locke. In the late twentieth century American evangelical writers, notably Francis Schaeffer in A Christian Manifesto (1981), brought it to a new readership.

Comparisons

• calvin-institutes

  Institutes IV.20 teaches obedience even to unjust rulers but allows that popular magistrates like the Spartan ephors may restrain kings; Rutherford builds his case for estates and inferior judges on that opening.

• second-treatise-of-government

  Locke, writing about forty years later, also grounds government in consent, treats rulers' power as a trust and allows resistance to its abuse; Rutherford argues from covenant and Scripture where Locke argues chiefly from a state of nature.

• leviathan

  Hobbes, writing in the same civil wars, concludes that the sovereign cannot be bound by covenant to his subjects; Rutherford's covenant binds king and people alike.

• discourse-on-voluntary-servitude

  La Boétie also holds that rulers depend on the people's consent, but he urges simple withdrawal of support, while Rutherford requires action through lawful estates and inferior magistrates.

• hooker-laws-of-ecclesiastical-polity

  Hooker grants that lawful power rests on the consent of the governed, yet defends the English episcopal establishment; Rutherford draws on similar natural-law premises to defend Presbyterian Scotland against the bishops.

• magna-carta

  Rutherford's claim that the king cannot act above the law echoes the charter's clauses 39-40, and he appeals to Magna Charta by name in question XXIII.

Quotes

For Students

A reading companion for classical Christian high school students. See the student guide.

Reading Guide

Watch for

• The title page and preface, where the book presents itself as a defence of Scotland's defensive wars and names Maxwell as the target.
• Question II's argument that men are born equally free and that no law of nature sets one man over another.
• The covenant of David with the elders at Hebron, used in question XIV to show that kingship is conditional.
• Question XXVI's four senses in which law may be above a king, and which one Rutherford refuses.
• The distinction between the king's person and his office in the questions on defensive war and Romans 13.

Key terms and names

Lex, Rex

Latin for law, king. The title inverts the royalist motto Rex, Lex (the king is the law) to claim that the law is king.

P. Prelate

Rutherford's scornful name for John Maxwell, the deposed bishop of Ross whose Sacro-sancta Regum Majestas the book answers.

Covenant

A sworn agreement binding king and people to each other and to God; in Scotland it also recalled the National Covenant of 1638.

Fiduciary power

Power held in trust for others, like a guardian's; Rutherford says a king's power is of this kind and may be withdrawn if abused.

Inferior magistrates

Judges, nobles and parliaments below the king who, Rutherford argues, hold their offices from God and the community and share in the higher powers of Romans 13.

Passive obedience

The royalist teaching that Christians may disobey an unlawful command only by suffering its penalty, never by resistance; question XXX disputes it.

Defensive war

Armed resistance by a people's estates to protect life, law and religion against a ruler's forces, as distinct from private revenge or aggressive rebellion.

Seminar Questions

1. Comprehension Whom is Rutherford answering in Lex, Rex, and what had that writer argued about the power of kings?
2. Comprehension According to questions I to IV, what in government comes directly from God, and what comes from the people?
3. Comprehension What does Rutherford mean in question XVI when he calls the king's dominion fiduciary rather than masterly?
4. Interpretation How does Rutherford turn the maxim that the king is a living law into an argument for the supremacy of law?
5. Interpretation Why is the distinction between the person and the office of the king so important for his reading of Romans 13?
6. Interpretation Rutherford says resistance and patient suffering can subsist in one Christian. How does he keep the first from swallowing the second?
7. Big Question If authority comes from God, can a people ever rightly take back the power it has given to a ruler? What conditions, if any, would have to be met?

Faith Connections

• Romans 13:1-7 (Scripture)

  The central text of the whole controversy. Royalists read it as forbidding all resistance to kings; Rutherford reads the higher powers as lawful authority, including inferior magistrates, and argues that a ruler commanding violence against the innocent is not acting as God's minister for good.

• Deuteronomy 17:14-20 (Scripture)

  The law of the king, requiring Israel's king to copy and read the law and not lift his heart above his brethren, is Rutherford's model of a ruler bound by law.

• 2 Samuel 5:3 (Scripture)

  The elders of Israel make a covenant with David at Hebron before anointing him king, which Rutherford takes as the pattern of a conditional, covenanted kingship.

• Calvin, Institutes of the Christian Religion IV.20.31 (Great Conversation)

  Calvin counsels private Christians to obey even harsh rulers, but allows that magistrates appointed to restrain kings, like the ephors of Sparta, must not betray the people; Rutherford extends this teaching to the estates of Scotland.

Logic and Rhetoric

Central argument: A king is not king by nature but by a law and covenant through which God gives him power by the people's consent; what is constituted by law is subject to that law; therefore the king is under the law, holds his power in trust, and may be lawfully resisted by the estates when he turns that power against the people.

Rhetorical device: distinctio (scholastic distinction). Question XXVI resolves whether the king is above the law by distinguishing four senses of supremacy, granting the law three and denying it the fourth; the same method separates the king's person from his office in the questions on resistance.

Debate: Resolved: that a people's lawful representatives may take up arms to defend themselves against their own ruler.

Memory Work

Truth to Christ, cannot be treason to Caesar, and for his choise he judgeth truth to have a nearer relation to Christ Jesus, then the transcendent and boundlesse power of a mortall Prince.

The Law hath a supremacy of constitution above the King

Writing Prompts

Essay: Using questions XIV, XVI and XXVI, explain how Rutherford's ideas of covenant, trust and law fit together into one account of limited monarchy.

Comparison with Second Treatise of Government: Compare Rutherford's covenant between king and people with Locke's idea of government as a trust. Where do their foundations differ, and where do their conclusions about resistance meet?

Medical Lens

Lex, Rex is a work of political theology with little medical content. Rutherford does use two analogies that a medical historian may notice. In question XIX he compares a ruler who turns his power against his people to a madman whose own sword may lawfully be taken from his hand, a common early modern image of the person who has lost the use of reason and with it the right to direct his own goods. In the same question he argues that an oath never to defend oneself would be as void as an oath to self-murder, drawing on the moral theology of the period that treated self-preservation as a precept of natural law and suicide as its gravest violation.

• Question XIX

  The analogy of taking a sword from a madman's hand is used to justify withdrawing fiduciary power from a ruler who abuses it.

  Madness Psychosis
• Question XIX

  Rutherford likens swearing to give up self-preservation to swearing to self-murder, citing natural law's command to preserve one's own life.

  Suicide

Creative Prompts

• Dialogue

  Write an exchange in 1644 between Rutherford and Bishop Maxwell on Romans 13:1, each using the verse to support his own conclusion about whether the Scots may take up arms.

• Classroom

  Divide the class into the four senses of supremacy in question XXVI (constitution, direction, limitation, coaction). Each group explains its sense with an example from a modern constitution and reports whether Rutherford grants it to the law.

• Essay

  Rutherford calls the king's power fiduciary, like that of a guardian or trustee. Explain the analogy and test it against one of the biblical kings he discusses.

• Adaptation

  Rewrite one short paragraph of the preface in modern spelling and plain present-day English, then note which of Rutherford's images were lost in the change.

Further Reading

• Politics, Religion and the British Revolutions: The Mind of Samuel Rutherford, John Coffey

  The standard modern study of Rutherford's theology and political thought.

• Letters of Samuel Rutherford, Samuel Rutherford

  His devotional letters, many written from Aberdeen; the edition of Andrew Bonar is the best known.

• De Jure Regni apud Scotos, George Buchanan

  The 1579 Scottish dialogue on the people's right over their kings, a source Rutherford defends.

• The Foundations of Modern Political Thought, Volume 2: The Age of Reformation, Quentin Skinner

  Traces Calvinist resistance theory before Rutherford.

• A Christian Manifesto, Francis A. Schaeffer

  A 1981 book that introduced Lex, Rex to many American readers.