Covenant & Resistance: Lex, Rex

1. Scope and evidence

The core claims on this card are Established: the authorship, date, anti-Maxwell purpose, 44-Question structure, the lex/rex inversion, the covenant-and-fiduciary theory, the institutionally-channelled resistance position, and the twin book-burnings are all documented in primary sources (the 1644 title page; the 1683 Oxford decree) and in peer-reviewed scholarship. The relationship to Buchanan is Established as a difference — current scholarship (Coffey) explicitly cautions against a "Rutherford merely repeated Buchanan" narrative. Claims of direct influence on the American Revolution and on John Witherspoon are Disputed and are flagged as such throughout.

2. Rutherford's life and the Westminster Assembly context

Samuel Rutherford was born about 1600 at Nisbet in the parish of Crailing, Roxburghshire, close to the English border. He graduated MA at Edinburgh in 1621 and became regent of Humanity there before entering the ministry at Anwoth in Galloway in 1627, where his intense preaching and pastoral energy became legendary. His nonconformity and a treatise against Arminianism led to his being silenced and confined to Aberdeen in 1636 — the period from which most of his famous devotional Letters survive. After the National Covenant of 1638 he was appointed Professor of Divinity at St Mary's College, St Andrews, in January 1639.

His authorship of Lex, Rex is inseparable from his role in the wider Covenanting settlement. Under the Solemn League and Covenant (1643), by which the Scots agreed to aid the English Parliament in exchange for a promised Presbyterian reformation of the English and Irish churches, Rutherford was appointed one of the four principal Scottish Commissioners to the Westminster Assembly of Divines in London. He took his seat in November 1643 and remained in London roughly four years, preaching before Parliament and vigorously advancing the Presbyterian cause. Coffey notes he was probably chosen partly on the strength of his 1642 Peaceable Plea for Paul's Presbyterie and his reputation as an authority on New England Congregationalism. It was in London, amid the greatest constitutional crisis in British history, that he completed Lex, Rex. The site's History series treats the Covenanters, the National Covenant, the Solemn League and Covenant, and the Westminster Assembly in depth; here the point is simply that Lex, Rex is the theoretical distillation of a movement in which Rutherford was a leading clerical actor.

3. The immediate purpose: rebutting Maxwell

Lex, Rex was, in its immediate occasion, a polemical reply. In January 1644 John Maxwell — the deposed (and excommunicated) Bishop of Ross, writing under the initials "J. A." — published Sacro-Sancta Regum Majestas, a defence of the sacred and absolute prerogative of Christian kings, asserting that royal authority derives immediately and only from God and demanding passive, absolute obedience from subjects. Rutherford, who had been working on a manuscript on government, hastily revised and finished it as a direct answer, presenting it to the printer John Field for publication on 7 October 1644.

The full title makes the polemical purpose plain: Lex, Rex: The Law and the Prince, A Dispute for the Just Prerogative of King and People… in which… a full answer is given to a seditious pamphlet intituled Sacro-Sancta Regum Majestas… penned by Jo. Maxwell the excommunicate P. Prelat… in XLIV Questions. The treatise also names and confutes a wider royalist field — William Barclay, Hugo Grotius, Henning Arnisaeus, the Bishop of Spalato, and others. Its argumentative form is scholastic: 44 numbered "Questions", each stating a proposition, marshalling arguments, and answering objections. Broadly, Questions 1–14 treat the origins of government; 15–21 the relations between king and people (Parliament and judiciary); 22–27 the relation of king to law, placing rex firmly under lex; and the remainder a range of topics including the lawfulness of the Scots' defensive wars. Coffey candidly describes the work as at times complex to the point of confusion, since it is not always easy to distinguish Rutherford's own voice from the opponents he quotes.

4. The core arguments: lex rex, covenant, and fiduciary power

The title itself is the argument in miniature. Against the royalist maxim Rex Lex — "the king is law", his will having the force of law — Rutherford asserts Lex, Rex: the law is king. Law here is capacious, embracing divine law, natural law, and positive/constitutional law; the ruler stands under it, not above it. Rutherford uses the actual phrase "rule of law" only rarely, but Lex, Rex is the work that crystallised the contrast between a government of laws and a government of men.

Rutherford's foundations are covenantal. He distinguishes the office of the magistrate (ordained by God, and thus not to be despised) from the person who holds it and the designation of that person (which comes from the people). Political power, he argues, is in its root from God but flows to a particular ruler only "by a virtual emanation" through the community: a people with no government may set up a king or an aristocracy. He frames a two-fold covenant — one between God, king, and people to uphold true religion and the moral law, and another between king and people binding them to mutual duties. This covenantal structure parallels, and in Rutherford's hands theologically outranks, a secular social contract; scholars treat Lex, Rex as a precursor to social-contract theory rather than a fully secular version of it.

From this follows his most influential single idea: royal power is fiduciary. In Question XVII Rutherford asks whether the prince holds "properly the fiduciary or ministerial power of a tutor, husband, patron, minister, head, master of a family, not of a lord or dominator", and concludes that the king is a servant and trustee of the people — "his power fiduciary only." The people are the "fountain-power"; the ruler holds authority in trust for their good. If he violates that trust — governing not for the people's welfare but for their destruction — the conditions of the grant fail and the people may withdraw their sanction. Rutherford also develops a separation of legislative, executive, and judicial functions within a mixed constitution combining the best of monarchy, aristocracy, and democracy. Recent scholarship (Aroney and Kennedy) highlights his striking distinction between constituent and constituted power — "the constituent is above that which is constituted" — vesting "prime and fountain-power" in the people-in-parliament and only derivative, "constituted" power in the king, arguably anticipating later constituent-power theory.

5. Who may resist? Rutherford compared carefully with Buchanan

This is the point on which precision matters most, and where Card #2's caution against conflating Rutherford with Buchanan is vindicated. Both men belong to a broad Scottish and Reformed resistance tradition running through John Mair, John Knox, George Buchanan, Andrew Melville, and Alexander Henderson. But their positions on who may resist differ substantively.

Buchanan (Card #2) reached what Quentin Skinner, in The Foundations of Modern Political Thought (1978), called "a highly individualist and even anarchic view of political resistance": since the people create the ruler, the right to kill or remove a tyrant is, in Skinner's account, "lodged at all times 'not only with the whole body of the people' but 'even with every individual citizen'" — a genuine licence for private tyrannicide, extending, Skinner notes, even to someone "from amongst the lowest and meanest of men" who resolves to "revenge the pride and insolence of a tyrant." Rutherford does not go there. In the mainstream Calvinist manner, he locates the ordinary leadership of resistance in the "inferior judges" or lesser magistrates and in the estates of Parliament. "Inferior judges", he writes, "are no less essentially judges, and the immediate vicars of God, than the king"; being themselves ordained authorities under Romans 13, they may — and in extremity must — resist a king who turns tyrant. Question XXVIII frames lawful defensive war as undertaken "at the commandment of the estates of the kingdom." His emphasis throughout is on the community and its constituted representatives, not the lone individual.

There is a genuine nuance to state accurately: Rutherford does allow private persons a natural-law right of defensive self-preservation — "no king, no civil power can take away nature's birthright of self-defence from any man" — and gives examples such as a subject defending himself or another against a ruler's personal violence. But this is a defensive right of self-protection in extremis, not Buchanan's offensive right of any citizen to execute a tyrant. As McAnnally-Linz notes, restricting active resistance to lesser magistrates was the sixteenth- and early-seventeenth-century rule; Goodman and Buchanan were the "incendiary exceptions." Rutherford sits with the rule, deliberately distancing the Covenanters from the radical king-killing associations then attached to Jesuit theorists and to Buchanan himself.

6. Intellectual sources: scholasticism, Reformed resistance theory, English parliamentarians

Modern scholarship has substantially revised the older assumption that Rutherford simply channelled Buchanan. John Coffey's Politics, Religion and the British Revolutions: The Mind of Samuel Rutherford (1997) — the only modern scholarly biography — and Karie Schultz's 2022 Journal of British Studies article show a far richer and more continental source base.

First, Catholic/Counter-Reformation scholasticism. Rutherford drew explicitly and heavily on the School of Salamanca and the wider neo-Thomist tradition — Francisco de Vitoria, Francisco Suárez, Luis de Molina, and especially the jurist Fernando Vázquez de Menchaca (to whom Rutherford, as Schultz notes, "frequently ascribed the accolade of 'the learned senator'", and whose ideas about the ius gentium had informed Grotius) — as well as on Aquinas's natural-law theory, for his account of the natural origin of political authority in the community and the people's power to determine the form of government. As Schultz puts it, "despite the anti-Catholic rhetoric in many seventeenth century political pamphlets, Catholic scholasticism shaped the language of political legitimacy surrounding the civil wars of the 1640's." Ironically, to make a civil state safe for Presbyterianism Rutherford reached for Catholic scholastics rather than authors of his own confession; as Schultz documents, "within the first two sections of the work, Rutherford quotes from one Greek philosopher (Aristotle) and nine Roman Catholics — six of them being sixteenth century Spanish neo-Thomists." This was strategic borrowing: Catholic scholasticism supplied the language of natural law, the ius gentium, and popular sovereignty that let him argue absolute monarchy was not divinely required.

Second, continental Reformed / Huguenot resistance theory. Lex, Rex stands alongside the Huguenot Vindiciae contra tyrannos (1579) and the work of Theodore Beza in attacking absolutism and grounding resistance in a double covenant; Rutherford shares their doctrine of resistance by inferior magistrates.

Third, English parliamentarian writers. Because Rutherford wrote in London during the Civil War and the Westminster Assembly, he repeated and engaged the arguments of contemporary English parliamentarians such as Henry Parker, John Goodwin, William Prynne, and Philip Hunton.

Coffey's assessment is pointed: many of Rutherford’s arguments had precedents among conciliarists, Spanish Thomists and earlier Calvinist writers. Yet, as Coffey also stresses, Lex, Rex was nonetheless "the distinctive contribution of a Scottish divine, peppered with references to Scottish resistance, and marked by explicitly theological arguments." Crucially, on the Buchanan question Coffey concludes that it was Buchanan's Rerum Scoticarum Historia (1582) rather than his incendiary De Jure Regni apud Scotos (1579) that most shaped the later Covenanters, and he qualifies the extent to which Buchanan's individual right of resistance informed Covenanter leaders. This is the scholarly basis for Card #2's warning against a simple "Buchanan caused Rutherford" story.

7. Contemporary condemnation and Rutherford's death

Lex, Rex caused an immediate sensation. Bishop Henry Guthry recorded that members of the Assembly so idolised the book that "whereas Buchanan's treatise… was looked upon as an oracle, this coming forth, it was slighted as not anti-monarchical enough, and Rutherford's Lex Rex only thought authentic."

At the Restoration of Charles II in 1660 Rutherford was among the first marked for persecution. The Committee of Estates ordered Lex, Rex burned by the common hangman at the crosses of Edinburgh and, some days later, at St Andrews under the windows of the author's own college; a proclamation required anyone holding a copy to surrender it or be treated as an enemy of the government. Rutherford was stripped of his university and pastoral offices and cited to appear before Parliament on a charge of high treason, alongside friends such as James Guthrie and the Marquis of Argyll, who were executed. He was by then mortally ill. According to Andrew Bonar's memoir, on hearing of the citation he remarked that he had already received "another summons before a superior Judge and judicatory," and sent word: "I behove to answer my first summons; and, ere your day arrive, I will be where few kings and great folks come." He died at St Andrews on 29 March 1661 (the "20th" on his tombstone is an error). This much-quoted deathbed reply is transmitted through Bonar's nineteenth-century biography drawing on seventeenth-century accounts; it is a firmly traditional and widely repeated report rather than a contemporaneously verified transcript, and should be presented as such.

The condemnation was not confined to Scotland. On 21 July 1683, in the wake of the Rye House Plot, the University of Oxford's Convocation passed its Judgment and Decree against "pernicious books and damnable doctrines"; Lex, Rex was ordered burned there alongside Buchanan's De Jure Regni, the Vindiciae contra tyrannos, and works by Bellarmine, Milton, Goodwin, Baxter, and Hobbes — the last officially sanctioned book-burning at Oxford. (This is consistent with Card #2's account of the 1683 Oxford burning.)

8. Later influence and legacy

Within the Reformed and Covenanting world Rutherford's influence was deep and durable. Lex, Rex became the political textbook of the Covenanters and a touchstone for later Presbyterian resistance writers; Alexander Shields's A Hind Let Loose (1687) drew on Knox, Buchanan, and Rutherford together. The Scottish Claim of Right of 1689, which declared that James VII had "forfaulted" the throne by violating the fundamental laws, expresses the same logic of contractual, forfeitable kingship rooted in Scotland's Presbyterian covenantal tradition — though scholars note that by the late 1680s the Covenants themselves featured only in a limited way, and the Convention drew explicitly on Buchanan's contractual argument. The connection between Lex, Rex and 1689 is therefore best described as atmospheric and traditional rather than a matter of direct textual dependence.

The most contested legacy claim concerns the American Revolution. Lex, Rex is frequently said to have influenced John Locke and, through the Scottish-American Presbyterian minister John Witherspoon — President of the College of New Jersey (Princeton) and the only clergyman to sign the Declaration of Independence — the American founding. Some congruence between Rutherford and Locke on fiduciary trust, consent, and resistance is real and has been studied seriously. But the strong popular claim rests almost entirely on Francis Schaeffer, whose A Christian Manifesto (1981) asserted that "John Witherspoon knew and stood consciously in the stream of Samuel Rutherford… who wrote Lex Rex in 1644," and that Witherspoon "followed Samuel Rutherford's Lex Rex directly and brought its principles to bear on the writing of the constitution and the laying down of forms and freedoms." There is no strong extant evidence that Lex, Rex was widely read at the American founding or that Witherspoon transmitted it directly; even sympathetic researchers concede the link is diffuse and atmospheric — part of an inherited Presbyterian "grammar of politics" (covenant, consent, limited authority, lawful resistance) rather than a demonstrable line of direct textual influence. Rutherford also diverged sharply from the American founders on religious liberty: his A Free Disputation Against Pretended Liberty of Conscience (1649) opposed toleration and defended the execution of heretics. This card therefore treats direct American-Revolutionary influence as disputed, consistent with the caution applied to Buchanan in Card #2.

9. Modern historiographical assessment

Coffey's 1997 study is the decisive modern corrective. Against both hagiographic Presbyterian tradition and proto-liberal readings, Coffey argues that Rutherford belongs "in the line of John Knox, not John Locke." His central thesis is that while Lex, Rex achieved "a careful synthesis of natural-law theory and biblical politics", Rutherford's "Old Testament vision of a purged and covenanted nation ultimately subverted his commitment to the politics of natural reason." In Coffey's words, "the quest for a godly nation was destined to undermine the advice of natural reason." Rutherford thus emerges as a figure of real intellectual rigour and wide learning, but also as a man of his time — a defender of religious uniformity, not a herald of modern pluralism. On originality, Coffey judges much of the argument derivative of conciliarism, Spanish Thomism, and earlier Calvinism; a newer strand of scholarship (Aroney and Kennedy) argues that Rutherford was nonetheless among the first to articulate an explicit distinction between constituent and constituted power. The consensus is that Lex, Rex is a significant, rigorous, and historically pivotal statement of constitutionalist resistance theory — but one best understood within its seventeenth-century Covenanting and scholastic context, not as a straightforward ancestor of liberal democracy.