Samuel Rutherford - Lex Rex - The Law and the Prince

Samuel Rutherford was born in Nisbet, Scotland in the year of 1600. He was educated at the University of Edinburgh and appointed professor of Latin. Eventually, he became a minister in Anworth, Scotland.  He enjoyed the quiet country life of a minister in Anworth where he loved the community and parish in which he served. His quiet life was disrupted after he published a book defending Calvinism of the Church of Scotland against the theological challenges of  Arminianism. 


He became recognized as a gifted theologian and scholar through the book which he published. Rutherford came under the scrutiny of Arminian Anglican bishops forced upon  the church of Scotland by King Charles I. 


In 1636, Rutherford was judged to be a Noncomformist by the Anglican High Commission. He was removed from his parish, barred from preaching in Scotland and was exiled to Aberdeen. The Presbyterian party gained control of the Church of Scotland in 1638. Scots vowed to defend the Reformed faith by signing the National Covenant. They sought to keep the Church of Scotland free from political intrigue and control. Rutherford became the professor of divinity at St. Andrew's University when the change occurred. Eventually, he became a member of the Westminster Assembly which wrote the Westminster Confession. Through diligent study and prolific writing; Rutherford became one of Scotland's greatest theological authors.


In 1660, the Anglican church was in-instituted in Scotland when the English monarchy was restored. Samuel Rutherford lost his teaching position and his written works were publicly burned. He was summoned to appear before Parliament in 1661 to answer charges of high treason. At the time, Samuel Rutherford was terminally ill and answered the high court with this response to Parliament: 

“I have got a summons already before a Superior Judge and Judicatory;...and ere your day come, I will be where few kings and great folks come.”

Upon his deathbead, a friend asked Rutherford: 

“What thin ye now of Christ?” He replied, “Oh, that all my brethren in the land may know what a master I have served, and what peace I have this day! I shall sleep in Christ, and when I awake, I shall be satisfied with his likeness. This night shall close the door, and put my anchor within the vail; and I shall go away in a sleep by five of the clock in the morning. Glory! Glory to my Creator and my Redeemer forever!...Glory! Glory dwelleth in Immanuel's land!”

Anne Ross Cousin developed Rutherford's last words in a poetic tract called “The Last Words of Samuel Rutherford.” 


“The Sands of Time are Sinking” is a hymn developed from the poem.

The sands of time are sinking,

The dawn of heaven breaks;

The summer morn I've sighed for,

The fair, sweet morn, awakes:

Dark, dark hath been the midnight

But dayspring is at hand,

And glory, glory dwelleth

In Immanuel's land.

O Christ! He is the fountain,

The deep, sweet well of love!

The streams on earth I've tasted,

More deep I'll drink above:

There, to an ocean fullness,

His mercy doth expand,

And glory, glory dwelleth

In Immanuel's land.

George Gillespie attended the University of St. Andrews. He came to prominence in 1637 when he anonymously published “A Dispute Against the English Popish Ceremonies, Obtruded Upon the Church of Scotland." He sharply criticized the Episcopalian innovations which were imposed on the Church of Scotland by King Charles. He became the youngest of the four Scottish ministers selected to attend the Westminster Assembly. Throughout his days, he was referred to as the “Great Mr. Gillespie.”


Gillespie was a great orator and thinker of his age. He attended a debate concerning whether the church or state had the authority of excommunication. Samuel Rutherford called upon Gillespie his friend and colleague. Rutherford declared: 

“Rise, George, rise up, man, and defend the right of the Lord Jesus Christ to govern by His own laws.” 

At first, Gillespie summarized the position of his opponent; then skilfully broke down his opponent's arguments piece by piece. His reasoning and oration were so convincing, his opponent declared:

“That young man, by this single speech has swept away the learning and labor of ten years of my life.”

Gillespie became gravely ill from tuberculosis at the age of thirty-six. He received a letter from Rutherford at St. Andrews during his last days. 

“Be not heavy: the life of faith is now called for; doing was never reckoned in your account; though Christ in and by you hath done more than by twenty, yea, an hundred gray-haired men and godly pastors. Believing now is your last. Look to that word, Galatians 2:20.”

The theology of Christianity explains the abnormality that is present in this age. This abnormality of man in terms of a flaw is explained by the historic space-time fall of mankind through Adam. Although mankind has noble attributes those attributes are vitiated by selfishness, cruelty, and vice. Mankind has a fatal infection of sin and rebellion against God. The atoning work of Jesus Christ is the remedy and answer to the abnormality.  Though the symptoms and effects remain, the fatal infection of sin is cured through Jesus Christ. Man isn't perfected in this life but is substantially healed by Christ's finished work of redemption. The absolutes of the Bible are available to order and direct man's fallen nature. Mankind is accountable to his Creator for his behavior and thought life. The Bible declares absolute standards by which all moral judgments of life are measured. Hence, the Bible is the standard of measure concerning right and wrong.


The fundamental principles of the Reformation world view were passed on to the American colonies through the work of Samuel Rutherford author of Lex Rex or, the Law and the Prince which was published in 1644.


The divine right of kings was the fundamental principle of the seventeenth century political government throughout Europe. Rutherford's work Lex Rex challenged the doctrine that the king or state ruled as God's appointed regent. Scripture was seen as the standard. Yet it was believed that the king alone interpreted and embodies that standard. Rutherford asserted the basic premise of government and law must be the Bible. The Word of God rather than the arbitrary relative opinions of men was the foundation of law and government. All men, including the king were under the law of God and not above it. Rutherford's philosophic position is the reason for which he was summoned to appear before Parliament who charged him with high treason and heresy.


Lex Rex was banned in Scotland and burned in England. Rutherford, a Scottish Presbyterian commissioner at Westminster Abbey and rector of St. Andrew's Church was placed under house arrest. He was summoned to appear before Parliament in Edinburgh where he faced execution. Rutherford died before he could comply with the summons to appear before Parliament. 


His theological world view profoundly influenced political thought of later generations. The fundamental principle of his presuppositions are based upon the absolutes of the Bible. Those presuppositions were realized through John Locke and John Witherspoon in colonial America. Presbyterian minister, John Witherspoon was educated at Edinburgh University and brought those principles of Lex Rex to America where he taught James Madison at Princeton University. John Witherspoon was the only clergyman to sign the Declaration of Independence. He was an influential member of the Continental Congress from 1776 to 1779 and from 1780 to 1782. Witherspoon held a key role in various committees of the First Continental Congress. As President of Princeton University, his profound influence was realized through the students whom he taught. His students held positions of eminence at the Constitutional Convention and throughout the early years of American history. President James Madison was among his students. Furthermore, he taught vice president Aaron Burr, ten cabinet officers; twenty-one senators; thirty-nine congressmen; twelve governors, and other public figures.


Professor Richard B. Morris of Columbia University declared in his book Seven Who Shaped Our Destiny: 

“Most influential in shaping Madison's...outlook was Princeton's president, John Witherspoon, a leading empiricist of his day...whose exposition of the doctrines of resistance and liberty quickly established him throughout the Continent as an imposing intellectual.”

James Madison has been labeled the “Father of the Constitution” but Witherspoon's influence upon Madison as his educator played a major role in the drafting of the Constitution.


The American colonists drew upon two principles enunciated in Rutherford's Lex Rex. Those two principles were important as the colonist's declared independence from Great Britain in 1776. The first principle is the concept of covenant and constitution between the ruler of a nation – God – and the populace. The covenant or constitution between the ruler – God – and the people could not grant the state absolute unlimited power without violating God's law. The American colonists asserted King George violated his covenant with God by transgressing the inalienable God given rights and liberties of the people.


Moses and Samuel were judges in the Old Testament. We find a biblical pattern for the judicial office in the Bible. In the era of Moses, judges resolved disputes among people at their request according the principles, and precepts of the laws of God. After a king for Israel was appointed; the judges interpreted and applied the law of the covenant and particular legislative acts. The prophet Samuel was a judge and guardian of the covenant which was made between God – King Saul – and the people of Israel. It was Samuel who actually drafted the covenant which set forth “the manner of the kingdom” and “the rights and duties of the Kingship” (I Samuel 10:25) It was Samuel Rutherford who presented the covenantal basis for government authority of which he speaks in Lex Rex or the Law and the Prince.


Furthermore, Rutherford asserted that all men are created equal. All men are born sinners in rebellion against God. Hence, Rutherford propagated the principle that no man is superior to any other man. It was Rutherford who established the principle of equality and liberty among men which was incorporated in the Declaration of Independence.


The phrase “all men are created equal” is but an echo of Samuel Rutherford's theological position he declared in his work Lex Rex written in 1644.


John Locke secularized the principles of which Rutherford wrote in 1644. Although Locke secularized the Reformed tradition, he drew heavily upon it. John Locke elaborated fundamental principles such as inalienable rights, government by consent, social compact (a constitution between the people and government), separation of powers, and the right to resist unlawful authority. There were men who formed the Constitution who were not Christian's in the full sense. Dr. Francis Schaeffer declared: 

“..yet they built upon the basis of the Reformation either directly through the Lex, Rex  tradition of indirectly through Locke.”

The political institutions of America have the principles of the Reformation as the base upon which the nation is founded and established. Unfortunately, the arbitrary nature of modern secularist civil “democratic” government reflects absolute monarchists who condemned the principles of Samuel Rutherford. Yet the monarchs of Rutherford's day acknowledged in theory the sovereignty of God. The Bible was held in high regard. For one such as Rutherford to challenge the monarch on biblical grounds was considered to be treason and heresy. In today's humanist materialistic culture, Lex Rex would  probably be ignored and relegated to irrelevant Christian declarations.


Tragically, contemporary Christians of our era have embraced a naive acceptance of the belief that civil government is in the realm of God's providential rule. Christians enjoy representation and remonstration but are inclined to submit to obey all decrees of state authority. The principles set forth by Samuel Rutherford in his monumental work Lex Rex is diametrically opposed to this position.


Constitutional Attorney John W. Whitehead, in his most important work The Second American Revolution declared:

“Acts of the state that do not have a clear reference point in the Bible are considered to be illegitimate and acts of tyranny (ruling without the sanction of God), Rutherford argued.”

 Hence, tyrannical government is always immoral and the work of Satan.


Samuel Rutherford declared:

“A power ethical, politic, or moral, to oppress, is not from God, and is not a power, but a licentious deviation of a power; and is no more from God, but from sinful nature and the old serpent, than a license to sin.”

Tyranny is not legitimate even though a people contracted and agreed to be governed by an authoritarian tyrant. Whitehead exclaimed: 

“Not so, argues Rutherford, for the people can never enter into a valid contractual obligation with a ruler when the terms of the contract are outside the Laws of God.”

There is a relationship of trust which arises from a constitution – a covenant – a contractual agreement between ruler (the state), the people, and Almighty God. In this covenant, the ruler agrees to rule the people according to the Word of God. Furthermore, the state has a covenant with God to obey his Word. The people agree to obey the state as long as the state continues to function according to the precepts and principles of the Bible.


Rutherford declared: 

“We give you a throne upon condition you swear by him who made heaven and earth, that you will govern us according to God's law.”

The people are “loosened from the contract” according to Rutherford if the state fails to rule according to the Law of God. Hence, the implications of the principles which Rutherford has gleaned from the Scriptures indicates that the vast majority of governments throughout the world are illegitimate!


Vindiciae Contra Tyrranos – Vindication Against Tyrants is a book which had a profound influence upon the American Founding Fathers. John Adams asserted that it was one of the most influential books of his generation. The work presents four basic principles:


Whitehead declares: 

“First, any ruler who commands anything contrary to the law of God thereby forfeits his rule. Second, we are rebelling against God when we obey a ruler who commands that which is against God's law. We are to obey God, not man. Third, since God's law is the fundamental law – and the only true source of law (neither king nor subject is exempt from it) – war is sometimes required in order to defend God's law against the ruler. Fourth, legal rebellion requires the leadership of lesser magistrates who can oppose the state. All these doctrines were basic to the colonial cause and were best expressed by Rutherford's Lex, Rex.”

Rutherford contends that tyranny is satanic and to fail to resist tyranny is to resist God. Furthermore, the ruler is granted power continually. Hence, the people have the power to withdraw their approval if the conditions of the covenant are not fulfilled. The civil magistrate holds his power in trust for the people. Hence, he is a fiduciary figure. Violation of the trust gives the people the duty and right of legitimate resistance. Rutherford established the right and duty of resistance to unlawful government. This principle is clearly exemplified in the Declaration of Independence. 


Resistance to tyrannical unjust government is a moral obligation. The citizen must be subject to the office of the magistrate but not subject to the man in the office whenever he or she commands that which is contrary to the Holy Bible. To resist injustice in all spheres of life which includes civil government and not merely religious life is a fundamental article of Christianity.


Samuel Rutherford declared:

“...to obey God rather than man, as all the martyrs did, shall receive to themselves salvation.”

A ruler should not be deposed merely because he violated a single breach of the compact he has sworn to the people to uphold. When a magistrate acts in a manner in which the governing structure of the nation is being destroyed; the citizens have the privilege, right and duty to relieve the magistrate of his power and authority. The governing structure of the nation is understood to be the fundamental constitution or covenant of society.


In a fallen world it is to be expected that such a concept or proposed course of action can result in illogical consequences. The men of the Reformation clearly understood this problem. Yet, this problem must not deter the citizen from examining appropriate levels of resistance. When facing a growing totalitarian state compels the citizen to consider the principles of which Rutherford asserts.


Lex, Rex does not propose armed revolution as an answer to totalitarianism. Nor was Rutherford an anarchist. Samuel Rutherford set forth three appropriate levels of resistance in which the private citizen may pursue.


The first level of resistance is in defense of oneself is protest. Hence, protest in our contemporary society includes legal action, petition of redress of grievances, freedom of speech and press.


The second level of resistance is to flee if possible. This is exactly the course of action which David took when confronted with the intrigues of King Saul. Furthermore, the Pilgrims of Colonial America as well as other groups of religious affiliation sought resist tyranny by coming to North America.


The third level of resistance against tyranny is self defense through  force of arms. Force should not be employed if one may save himself through flight. Flight should not be employed if self preservation can be achieved through protest and the execution of lawful means secured by the Constitution. 


Flight is often impractical and unrealistic when the state deliberately commits illegitimate acts against a corporate body such as the duly elected state, local body, and the church. The community – or corporate body – has two levels of resistance against tyranny. Protest is the first remonstrance and if absolutely necessary force of arms in self defense. Samuel Rutherford made a careful distinction between lawless uprising and lawful resistance against tyranny.


Whenever the state perpetrates illegitimate actions upon a community; resistance must be under the aegis of duly constituted authority. Hence, the lesser magistrates and local officials have the authority and responsibility to resist illegitimate actions of the state. God has instituted government to restrain chaos and protect the citizen from wrongdoers. High state officials are NOT the only vicars of God who are entrusted with this responsibility. The local officials and magistrates are as much immediate vicars of God as high officials of the states. Both local and high officials are to respect God and bound to follow the commands of God in the Bible.


For example: If one were treated unfairly by a government agency; one should appeal to his or her congressmen who would deal with the federal agency to correct the problem. The need for representation by a duly appointed official is clearly emphasized by Rutherford who opposed anarchy. The individual citizen is NOT to take the law into his or her hands.


The historical record of the years prior to the American Revolution clearly indicate that this was the model followed by the Founding Fathers.  After failing at several attempts to protest the actions of Great Britain, the colonists defended themselves through force of arms.


The clear emphasis of the Bible is that a true cultural revolution  will occur by fulfilling the law of God without regard to personal consequences. Taking to the streets in armed revolution is NOT the model the Holy Scriptures advocate concerning Christian resistance to illegitimate actions by the state.


Rutherford's second level of resistance – flight – is not an option for the Christian in contemporary society. The world is constantly shrinking and there are no longer safety zones as Switzerland. Consequently, there are very few places in which the Christian may flee from tyranny.


The continued slide to totalitarianism MUST be resisted by Christians and protest is the most viable alternative in this era. Freedom still exists for the Christian to utilize the right of protest but protest can be a form of force.


When Peter was commanded by the Sanhedrin to no longer preach in the name of Jesus within the temple; he personally ignored the illegitimate command. He entered to Temple and preached the Gospel compelling others to listen to message they did not desire to hear. 


When the Supreme Court rules that a state law permitting the posting of the Ten Commandments is unconstitutional; the state does NOT have to follow the orders the Supreme Court. The Supreme Court's decision was unbiblical for God desires that children know the Ten Commandments. Jesus declared: “If ye love me, keep my commandments.” There are various references in the Holy Scriptures concerning the manner in which God desires that children are to be taught the commandment of God.


Furthermore, the Supreme Court violated the federal covenant with the people and their covenant required by God. The definition of good and proper government is one where the Gospel of Jesus Christ is unhindered in a free society. The restriction against posting the Ten Commandments is an attack upon the basic principle that school children need to realize the importance of the commands of God. 


The Supreme Court is powerless to execute its own decisions for the system depends upon the people following the dictates of the court. The time is near when local communities and states may disobey the Supreme Court and other federal and state agencies that act contrary to the principles of the Bible.


When all avenues of flight and protest have failed; there is a time when force in a defensive posture  including physical force is appropriate. This principle is exactly the situation the American colonists experienced leading to the American Revolution with Great Britain.


Great Britain, through tyranny, was a foreign power invading America. Americans defended their homeland on this continent and did not cross the Atlantic to invade England. The Americans were actually counter-revolutionaries resisting the attempt of British revolutionaries to overthrow colonial governments subjugating them to arbitrary illegitimate covenant breaking will of Parliament.


The principles concerning resistance to tyranny through responsible representatives was taught in John Calvin's Institutes. Calvin's teaching on resistance to tyranny was cited by some twenty-eight Calvinists trailblazers before John Locke. Samuel Rutherford was among those pioneers who wrote Lex, Rex or The Law and the Prince. 


Portions of the essay were gleaned from Constitutional Attorney John W. Whitehead's book The Second American Revolution.

Francis Scott Key - Letter to John Randolph

Francis Scott Key described the circumstances which inspired him to write "The Star Spangled Banner" in a letter to his friend John Randolph of Roanoke. In the letter, he makes no mention of the hymn which he composed on the occasion. Francis Scott Key-Smith wrote a biography of his illustrious ancestor in which the letter appears. He supplements the letter with personal observations of the historic occasion.

“The Star Spangled Banner” was composed amid the gunfire of the British attack on Fort McHenry in Baltimore in the Chesapeake Bay on September 13, 1814. Key was a lawyer and at one time District Attorney of the District of Columbia. He was on an errand, while under a flag of truce, to the British fleet when he was detained by the British during the bombardment of the fortifications. 35 year old Key originally titled his poem “Defense of Fort McHenry”

“You will be surprised to hear that I have spent eleven days in the British fleet. I went with a flag to endeavor to save poor old Dr. Beans a voyage to Halifax, in which we fortunately succeeded. They detained us until after their attack on Baltimore, and you may imagine what a state of anxiety I endured. Sometimes when I remember it was there the declaration of this abominable war was received with public rejoicing, I could not feel a hope that they would escape; and again when I thought of the many faithful whose piety lessens that lump of wickedness I could hardly feel a fear.”

“To make my feelings still more acute, the Admiral had intimated his fears that the town must be burned, and I was sure that if taken it would have been given to plunder. I have reason to believe that such a promise was given to their soldiers. It was filled with women and children. I hope I shall never cease to feel the warmest gratitude when I think of this most merciful deliverance. It seems to have given me a higher idea of the “forbearance, long suffering, and tender mercy” of God, than I had ever before conceived.”

“Never was a man more disappointed in his expectations than I have been as to the character of British officers. With some exceptions they appeared to be illiberal, ignorant and vulgar, and seem filled with a spirit of malignity against everything American. Perhaps, however, I saw them in unfavorable circumstances...”

“Between two and three o'clock in the morning the British, with one or two rocket and several bomb-vessels manned by 1,200 picked men, attempted, under cover of darkness, to slip past the fort and up the Patapsco, hoping to effect a landing and attack the garrison in the rear.”

“Succeeding in evading the guns of the fort, but unmindful of Fort Covington, under whose batteries they next came, their enthusiasm over the supposed success of the venture gave way in a derisive cheer, which, borne by the damp night air to our small party of Americans on the Minden, must have chilled the blood in their veins and pierced their patriotic hearts like a dagger.”

“Fort Covington, the lazaretto, and the American barges in the river now simultaneously poured a galling fire upon the unprotected enemy, raking them fore and aft, in horrible slaughter. Disappointed and disheartened, many wounded and dying, they endeavored to regain their ships, which came closer to the fortifications in an endeavor to protect the retreat. A fierce battle ensued. Fort McHenry opened the full force of all her batteries upon them as they repassed, and the fleet responding with entire broadsides made an explosion so terrific that it seemed as though mother earth had opened and was vomiting shot and shell in a sheet of fire and brimstone.”

“The heavens aglow were a seething sea of flame, and the waters of the harbor, lashed into an angry sea by the vibrations, the Minden rode and tossed as though in a tempest. It is recorded that the houses in the city of Baltimore, two miles distant, were shaken to their foundations. Above the tempestuous roar, intermingled with its hubbub and confusion, were heard the shrieks and groans of the dying and wounded. But alas! They were from the direction of the fort. What did it mean? For over an hour the pandemonium reigned. Suddenly it ceased – all was quiet, not a shot fired or sound heard, a deathlike stillness prevailed, as the darkness of night resumed its sway. The awful stillness and suspense were unbearable...”

“[I turned my] eyes in the direction of the fort and its flag, but the darkness had given place to a heavy fog of smoke and mist which now enveloped the harbor and hung close down to the surface of the water...”

“Sometime must yet elapse before anything definite might be ascertained. At last it came. A bright streak of gold mingled with crimson shot athwart the eastern sky, followed by another and still another, as the morning sun rose in the fullness of his glory, lifting “the midst of the deep” crowning a “Heaven-blest land” with a new victory and grandeur.”

“On his own account Mr. Key-Smith writes that his ancestor, the author of “The Star Spangled Banner,” was soon able to see the American flag through a vista in the smoke and vapor. As it caught “The gleam of the morning's first beam' his proud and patriot heart knew no bounds; the wounds inflicted 'by the battle's confusion' were healed instantly as if by magic; a new life sprang into every fiber, and his pen-up emotions burst forth with an inspiration in a song of praise, victory, and thanksgiving as he exclaimed:

“'This the Star-Spangled Banner, Oh! long may it wave,O're the land of the free and the home of the brave.”

“As the morning's sun arose, vanquishing the darkness and gloom; lifting the fog and smoke and disclosing his country's flag, victorious, bathed in the delicate hews of morn, only an inspiration caught from such a sight can conceive or describe, and so only in the words of his song can be found the description.”

“The first draft of the words were emotionally scribbled upon the back of a letter which he carried in his pocket and of which he made use to jot down some memoranda of his thoughts and sentiments.”...

“Copies of the song were struck off in handbill form, and promiscuously distributed on the street. Catching the popular favor like prairie fire it spread in every direction, was read and discussed, until, in less than an hour, the news was all over the city.”

“Picked up by a crowd of soldiers assembled, some accounts put it, about Captain McCauley's tavern, next to the Holiday Street Theater, others have it around their tents on the outskirts of the city, Ferdinand Durang, a musician, adapted the words to an old tune of “Anacreon in Heaven.” and, mounting a chair, rendered it in fine style.”

“On the evening of the same day it was again rendered upon the stage of the Holiday Street Theater by an actress, and the theater is said to have gained thereby a national reputation. In about a fortnight it had reached New Orleans and was publicly played by a military band, and shortly thereafter was heard in nearly, if not all, the principal cities and towns throughout the country.”

On March 3, 1931, “The Star-Spangled Banner” became the National Anthem of the United States by an official act of Congress (36 U.S.C. Sec. 170)

O! say can you see by the dawn's early light,What so proudly we hailed at the twilight's last gleaming,Whose broad stripes and bright stars through the perilous fight,O're the ramparts we watched, were so gallantly streaming?And the rockets' red glare, the bombs bursting in air,Gave proof through the night that our flag was still there;O! say does that star-spangled banner yet wave,O're the land of the free and the home of the brave?

On the shore dimly seen through the mists of the deep,Where the foe's haughty host in dread silence reposes,What is that which the breeze, o'er the towering steep,As it fitfully blows, half conceals, half discloses?Now it catches the gleam of the morning's first beam,In full glory reflected now shines in the steam:'Tis the star-spangled banner, O! long may it waveO'er the land of the free and the home of the brave.

And where is that band who so vauntingly sworeThat the havoc of war and the battle's confusion,Their blood was washed out their foul footsteps' pollution.No refuge could save the hireling and slaveFrom the terror of flight, or the gloom of the grave:And the star-spangled banner in triumph doth wave,O'er the land of the free and the home of the brave.

O! thus be it ever, when freemen shall standBetween their loved home and the war's desolation.Blest with vict'ry and peace, may the Heav'n rescued landPraise the Power that hath made and preserved us a nation!Then conquer we must, when our cause it is just,And this be our motto: "In God is our trust."And the star-spangled banner in triumph shall waveO'er the land of the free and the home of the brave!

The Spirit of the Laws - Montesquieu

Baron Charles Louis Joseph de Secondat Montesquieu (1689 – 1755) was an authoritative French professor, legal philosopher, and author of The Spirit of the Laws which he wrote in 1748. The Spirit of the Laws had a profound impact on the formation of the American federal government. Upon examining almost 15,000 newspaper articles, monographs, books, pamphlets, and sermons written by the Founding Fathers of America; Montesquieu was the most frequently quotes source other than the Bible.

Montesquieu maintained the philosophic premise that humanity was basically selfish. Hence, individuals unchecked would accumulate power unto themselves when the opportunity arose. His philosophic world view merged with the Calvinist doctrine of the depravity of man – mankind fallen in space and time through the rebellion of Adam and Eve against God. Consequently, such persons accumulating power unto themselves would become despotic.

His philosophic position is reflected in the concept of the fallen nature of man as expressed by the Old Testament prophet Jeremiah.

Jeremiah 17:9

“The heart is deceitful above all things and desperately wicked who can know it.”

Montesquieu proposed dividing the powers of central government of a nation into three co existent branches which would be balanced in power. Each branch of government would prevent the unwarranted accumulation of power through checks and balances. The monarch's power divided into Judicial, Executive, and Legislative branches is reflected in the book of Isaiah.

Isaiah 33:22

“For the Lord is our judge, the Lord is our Lawgiver, the Lord is our King.”

In his book The Spirit of the Laws which was published in 1748, Montesquieu wrote:

“Nor is there liberty if the power of judging is not separated from legislative power and from executive power. If it [the power of judging] were joined to legislative power, the power over life and liberty of the citizens would be arbitrary, for the judge would be the legislator. If it were joined to the executive power, the judge would have the force of an oppressor. All would be list if the same...body of principal men...exercised these three powers...”

“The Christian religion, which orders men to love one another, no doubt wants the best political laws and the best civil laws for each people, because those laws are, after [the Christian religion], the greatest good that men can give and receive.”

Furthermore, Montesquieu declared in Book XXIV of The Spirit of the Laws:

“I have always respected religion; the morality of the Gospel is the noblest gift ever bestowed by God on man. We shall see that we owe to Christianity, in government, a certain political law, and in war a certain law of nations – benefits which human nature can never sufficiently acknowledge.

“The principles of Christianity, deeply engraved on the heart, would be infinitely more powerful than the false honor of monarchies, than the humane virtues of republics, or the servile fear of despotic states.

“It is the Christian religion that, in spite of the extent of empire and influence of climate, has hindered despotic power from being established in Ethiopia, and has carried into the heart of Africa the manners and laws of Europe.”

“The Christian religion is a stranger to mere despotic power. The mildness so frequently recommended in the Gospel is incompatible with the despotic rage with which a price punishes his subjects and exercises himself in cruelty.”

“Society...must repose on principles that do not change.”

The Spirit of Laws

“Laws, in their most general signification, are the necessary relations arising from the nature of things. In this sense all beings have laws: the Deity His laws, the material world its laws, the intelligences superior to man their laws, the beasts their laws, man his laws. They who assert that a blind fatality produced the various effects we behold in this world talk very absurdly; for can any thing be more unreasonable than to pretend that a blind fatality could be productive of intelligent beings? There is, then, a prime reason; and laws are the relations subsisting between it and different beings, and the relations to these to one another.”

“God is related to the universe, as Creator and Preserver; the laws by which He created all things are those by which He preserves them. He acts according to these rules, because He knows them; He knows them, because He made them; and He made them, because they are in relation to his Wisdom and power...”

“In very government there are three sorts of power.”

“The Legislative; the executive in respect to things dependent on the law of nations; and the executive in regard to matters that depend on the civil law. By virtue of the first, the prince or magistrate enacts temporary or perpetual laws, and amends or abrogates those that have already been enacted. By the second, he makes peace or war, sends or receives embassies, establishes the public security, and provides against invasions. By the third, he punishes criminals, or determines the disputes that arise between individuals. The latter we shall call the judiciary power, and the other simply the executive power of the state. The political liberty of the subject is a tranquility of mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man need not be afraid of another. When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

“Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.”

“There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals...”

“Hence it is that many of the princes of Europe, whose aim has been leveled at arbitrary power, have constantly set out with uniting in their persons all the branches of magistracy, and all the great offices of state...”

“The judiciary power ought not to be given to a standing senate; it should be exercised by persons taken from the body of the people at certain times of the year, and consistently with a form and manner prescribed by law, in order to erect a tribunal that should last only so long as necessity requires...”

“The other two powers may be given rather to magistrates or permanent bodies, because they are not exercised on any private subject; one being no more than the general will of the state, and the other the execution of that general will.”

“But though the tribunals ought not to be fixed, the judgments ought; and to such a degree as to be ever conformable to the letter of the law. Were they to be the private opinion of the judge, people would then live in society, without exactly knowing the nature of their obligations...”

“As in a country of liberty, every man who is supposed a free agent ought to be his own governor; the legislative power should reside in the whole body of the people. But since this is impossible in large states, and in small ones is subject to many inconveniences, it is fit the people should transact by their representatives what they cannot transact themselves.

“The inhabitants of a particular town are much better acquainted with its wants and interests than with those of other places; and are better judges of the capacity of their neighbors than of that of the rest of their countrymen. The members, therefore, of the legislature should not be chosen from the general body of the nation; but it is proper that in every considerable place a representative should be elected by the inhabitants.”

“The great advantage of representatives is, their capacity of discussing public affairs. For this the people collectively are extremely unfit, which is one of the chief inconveniences of a democracy.”

“It is not at all necessary that the representatives who have received a general instruction from their constituents should wait to be directed on each particular affair, as is practiced in the diets of Germany. True it is that by this way of proceeding the speeches of the deputies might with greater propriety be called the voice of the nation; but on the other hand, this would occasion infinite delays;would give each deputy a power of controlling the assembly; and, on the most urgent and pressing occasions, the wheels of government might be stopped by the caprice of a single person...”

“One great fault there was in most of the ancient republics, that the people had a right to active resolutions, such as require some execution, a thing of which they are absolutely incapable. They ought to have no share in the government but for the choosing of representatives, which is within their reach. For though few can tell the exact degree of men's capacities, yet there are none but are capable of knowing in general whether the person they choose is better qualified than most of his neighbors.”

“Neither ought the representative body to be chosen for the executive part of government, for which it is not so fit; but for the enacting of laws, or to see whether the laws in being are duly executed, a thing suited to their abilities, and which none indeed but themselves can properly perform...”

“The legislative power is therefore committed to the body of the nobles, and to that which represents the people, each having their assemblies and deliberations apart, each their separate views and interests.”

“Of the three powers above mentioned, the judiciary is in some measure next to nothing; there remain, therefore, only two; and as these have need of a regulating power to moderate them, the part of the legislative body composed of the nobility is extremely proper for this purpose...”

“The executive power ought to be in the hands of a monarch, because this branch of government, having need of despatch, is better administered by one than my many; on the other hand, whatever depends on the legislative power is oftentimes better regulated by many than by a single person.”

“But if there were no monarch, and the executive power should be committed to a certain number of persons selected from the legislative body, there would be an end of liberty by reason the two powers would be united, as the same persons would sometimes possess, and would always able to possess a share in both...”

“Were the executive power not to have a right of restraining the encroachments of the legislative body, the latter would become despotic; for as it might arrogate to itself what authority it pleased, it would soon destroy all the other powers.”

“But it is not proper, on the other hand, that the legislative power should have a right to stay the executive. For as the execution has its natural limits, it is useless to confine it; besides, the executive power is generally employed in momentary operations. The power, therefore, of the Roman tribunes was faulty, as it put a stop not only to the legislation, but likewise to the executive part of government which was attended with infinite mischief.”

“But if the legislative power in a free state has no right to stay the executive, it has a right and ought to have the means of examining in what manner its laws have been executed; an advantage which this government has over that of Crete and Sparta, where the Cosmi and Ephori have no account of their administration...”

“The executive power, pursuant of what has been already said, ought to have a share in the legislature by the power of rejecting; otherwise it would soon be stripped of its prerogative. But should the legislative power usurp a share of the executive, the latter would be equally undone.”

“If the prince were to have a part in the legislature by the power of resolving, liberty would be lost. But as it is necessary he should have a share in the legislature for the support of his own prerogative, this share must consist in the power of rejecting. The change of government at Rome was owing to this, that neither the senate, who had one part of the executive power, nor the magistrates, who were intrusted with the other, had the right of rejecting, which was entirely lodged in the people. Here, then, is the fundamental constitution of the government we are treating of. The legislative body being composed of two parts, they check one another by the mutual privilege of rejecting. They are both restrained by the executive power, as the executive is by the legislature. These three powers should naturally form a state of repose or inaction. But as there is a necessity for movement in the course of human affairs, they are forced to move, but still in concert...”

Montesquieu's The Spirit of the Laws was published in Colonial Press 1900. The text here was edited from The Christian History of the Constitution of the United States of America - Christian Self Government compiled by Verna M. Hall

An Inquiry into the Nature and Causes of the Wealth of Nations - 1775

“The policy of Europe, therefore, has very little to boast of, either in the original establishment, or, so far as concerns their internal government, in the subsequent prosperity of the colonies of America...Upon all of these different occasions it was, not the wisdom and policy, but the disorder and injustice of the European governments, which peopled and cultivated America...When those establishments were effectuated, and had become so considerable as to attract the attention of the mother country, the first regulations which she made with regard to them, had always in view to secure herself the monopoly of their commerce; to confine their market, and to enlarge her own at their expense...The maintenance of this monopoly has hitherto been the principal, or more properly, perhaps the sole end and purpose of the dominion which Great Britain assumes over the colonies...monopoly of the great commerce of America naturally seems to be an acquisition of the highest value. To the undiscerning eye of giddy ambition, it naturally presents itself, amidst the confused scramble of politics and war, as a very dazzling object to fight for.”

Except from Adam Smith's “An Inquiry into the Nature and Causes of the Wealth of Nations” - 1775

Boston Gazette & Country Journal, December 9th & 16th, 1765

“THE British Colonists have in divers instances been restrained in their attempts to erect manufactories, and forbidden to work up their own materials. Hats by a particular act are not to be exported from colony to colony, under enormous penalty of f 500 Sterling.?”

“IN the reign of King William III, an act passed which forbids wool and woolen, under any pretense, to be water born in the colonies, or in any way carried from colony to colony...but who will believe that in the same glorious reign, the following very extraordinary clause is to be found in an act of Parliament now in force, viz, 'That if any of the Governors in those plantations, or any other person or persons in authority there, shall refuse to yield obedience to this act such refusal is hereby declared to be a forfeiture of all and every the charters granted for the government and prosperity of such colony.'”

“THE second Charles, far from aiding or even protecting the colonists against their enemies, found means to restrain them in their trade and commerce. His parliament...obliged all the British Colonies to carry the chief of their produce, all indeed of any great value, to Britain. Soon after this, the colonies were prohibited from importing any commodities or manufactures of Europe, but from England...The enumerated commodities, which at this day can be exported from the Colonies only to Great Britain, are sugar, molasses, tobacco, ginger, cotton-wool, indigo, fustick, and all other dying wood, tar, pitch, turpentine, hemp, masts, yards, bowsprits, copper ore, beaver skins, and other furs, rice...”

Excerpts from the “Boston Gazette and Country Journal” of December 9^th and 16^th of the year 1765

Quartering Act of 1774 - The 4th Intolerable Act

“...the persons who now are, or may be hereafter, authorized by law, in any of the provinces within his Majesty's dominions in North America...are hereby respectively authorized, empowered, and directed, on the requisition of the officer, who, for the time being, has the command of his Majesty's forces in North America, to cause any officers or soldiers in his Majesty's service to be quartered and billeted in such manner as is now directed by law, where no barracks are provided by the colonies...that if it should happen at any time that any officers or soldiers in his Majesty's service shall remain within any of the said colonies without quarters for the space of twenty-four hours after such quarters shall have been demanded, it shall and may be lawful for the governor of the province to order and direct such and so many uninhabited houses, outhouses, barns, or other buildings, as he shall think necessary to be taken...for the reception of such officers and soldiers...” 

George III, June 2, 1774

The Administration of Justice Act – 1774 - The 3rd Intolerable Act

“Whereas in his Majesty's province of Massachusetts Bay, in New England, an attempt has lately been made to throw off the authority of the Parliament of Great Britain over the said province, and an actual and avowed resistance by open force, to the execution of certain Acts of Parliament, has been suffered to take place, uncontrolled and unpunished, in defiance of his Majesty's authority, and to the utter subversion of all lawful governments; and whereas, in the present disordered state of the said province it is of the utmost importance to the general welfare thereof, and to the re-establishment of lawful authority throughout the same, that neither the magistrates acting in support of the laws, nor any of his Majesty's subjects aiding and assisting them therein, or in the suppression of riots and tumults raised in opposition to the execution of the laws and statutes of this realm, should be discouraged from the proper discharge of their duty by an apprehension that in case of their being questioned for any acts done therein, they may be liable to be brought to trial for the same before persons who do not acknowledge the validity of the laws, in the execution thereof, or the authority of the magistrate in the support of whom such acts had been done...if any inquisition or indictment shall be found, or if any appeal shall be sued or preferred against any person for murder, or other capital offense, in the province of Massachusetts Bay, and it shall appear by information given upon oath to the governor, or, in his absence, to the lieutenant-governor of the said province, that the fact was committed by the person against whom such inquisition or indictment shall be found, or against whom such appeal shall be sued or preferred as aforesaid, either in the execution of his duty as a magistrate for the suppression of riots, or in the support of the laws of revenue, or in acting in his duty as an officer of revenue, or in acting under the direction and order of any magistrate for the suppression of riots, or for the carrying into effect the laws of revenue, or in aiding and assisting in any of the cases aforesaid; and if it shall also appear to the satisfaction of the said governor, or lieutenant-governor respectively, that an indifferent trail cannot be had within the said province; in that case it shall and may be lawful for the governor or lieutenant-governor to direct, with the advice and consent of the council, that the inquisition, indictment, or appeal shall be tried in some other of his Majesty's colonies, or in Great Britain; and for that purpose, to order the person against whom such inquisition or indictment shall be found, or against whom such appeal shall be sued or preferred as aforesaid, to be sent, under sufficient custody, to the place appointed for his trial, or to admit such person to bail, taking a recognizance (which the said governor, or, in his absence, the lieutenant-governor, is hereby authorized to take), from such person, with sufficient sureties, to be approved of by the said governor, or, in his absence, the lieutenant-governor, in such sums of money as the said governor, or in his absence, the lieutenant-governor, shall deem reasonable for the personal appearance of such person, if the trial shall be appointed to be had in any other colony, before the governor, or lieutenant-governor, or commander-in-chief of such colony; and if the trial shall be appointed to be had in Great Britain, then before his Majesty's Court of King's Bench, at a time to be mentioned in such recognizances; and the governor or lieutenant-governor, or commander-in-chief of the colony where such trial shall be appointed to be had, or Court of King's Bench, where the trial is appointed o be had in Great Britain, upon the appearance of such person, according to such recognizance, or in custody, shall either commit such person, or admit him to bail, until such trial...” 

George III, May 20, 1774