Articles & Papers
Maxwell Answers Rutherford
Five arguments from Samuel Rutherford’s Lex, Rex (1644), written against John Maxwell’s Sacro-Sancta Regum Majestas, and the strongest royalist reply to each. Rutherford limits the king. The test is whether he also proves the people sovereign.
Download the full PDF One-page summary (PDF)Royal power is radically in the people. Making a king and choosing a king are not to be distinguished, and the people’s act is more than approbation.
The people cannot give what they never had.
A community is a body of private men, and no private man holds the power of life and death over himself or his neighbor. Rutherford grants that this power comes from positive law and that a community cannot formally punish itself. The sword the magistrate bears (Rom. 13:4) must then come from God, with the people naming its bearer — Rutherford refuses to separate making from choosing because that distinction, once allowed, leaves the people a designating role and nothing more.
Every man is born free with respect to civil subjection. Nature subjects children to parents and wives to husbands, but no man to a king.
You granted that nature makes rulers. Show where nature stops.
Rutherford concedes natural subjection in the household, calls civil society natural in its root, and calls government by rulers a secondary law of nature. Once government itself is natural, equal humanity cannot settle whether its form and holder are left wholly to human choice. A hierarchy that is natural in the family needs an argument to become artificial when the family grows into a people, and Rutherford assumes that step rather than proving it.
David was anointed by God, yet he was not king until the people made him king in Hebron. Scripture ascribes the making of kings to the people.
The LORD chose. The people set.
The law of the king gives each party its part: “thou shalt in any wise set him king over thee, whom the LORD thy God shall choose” (Deut. 17:15). Rutherford’s claim that David was not king “formally” until Hebron assumes the very thing in dispute — that the people’s act is what supplies the form. Hebron shows the people installing a king God had already named.
The law stands above the king in constitution, direction, limitation, and co-action. If the people may limit the king, they must be the ones who gave him the power.
Under the law is not under the people.
The first three items can be granted: the king is constituted, directed, and limited by God’s law, the fundamental laws, and his coronation oath. Being bound does not show who bound you. The fourth item, co-action, is different in kind — enforcement needs an enforcer with power over the king, and at that point the law is not ruling. The people are, in the law’s name.
The Estates and inferior magistrates may resist a king who turns tyrant, and in the court of necessity the people may judge him. Tyranny is visible enough to discern.
A bad king is still a king. Who judges the judge?
Every rebellion has found the tyranny visible, and every king has found the rebellion equally visible. With two parties each claiming the law, someone must decide, and whoever decides finally is the sovereign. Rutherford places that power in the Estates, and says Parliament has more power than the king — then the Estates are sovereign and the question moves up one level with no answer. David had the army and the opportunity and still would not touch “the LORD’s anointed” (1 Sam. 24:6; 26:9).
Limiting a ruler and locating sovereignty are separate questions, and Rutherford answers the first far better than the second. Each step from one to the other runs through the same move: whoever enforces the limit becomes the higher power. Rutherford names what the community keeps its “fountain-power.” Later theory calls it constituent power. Either way, a final earthly judge has been installed above the king, and Maxwell’s question stands: by what authority does that judge sit?
Rutherford keeps covenant, divine law, and an ordained magistracy, and still moves the fountain of political power into the community. Locke keeps the fountain and lets most of the rest go.
Once the people hold the fountain-power, what keeps them bound to anything above themselves?
Which of the five replies is weakest, and what would Rutherford say back?
SOURCES · Samuel Rutherford, Lex, Rex, or The Law and the Prince (London, 1644), cited by Question · John Maxwell, Sacro-Sancta Regum Majestas (1644, under the initials J. A.) · Scripture quoted from the KJV