In attempting to justify the American War of Independence, two interrelated considerations must be examined. The first concerns the question of sovereignty – who or what is the highest authority in a given political structure? The second is the question of legitimacy – does a particular ruler or governmental authority have the right to demand the submission commanded of the Christian in Romans 13? Jonathan Boucher, an eighteenth century Episcopal minister examined these questions and concluded that colonial resistance to the government in England could not be justified; he then preached nonresistance until he fled to England in 1775.[1] Boucher, however, failed to understand the true spirit of the American War of Independence, the Biblical formulation of temporal authority, and the ultimate source of law. Another examination of the issue, separate perhaps from the emotions and temporal limitations of the former, demonstrates Boucher’s misunderstandings. Contrary to the arguments presented by Boucher, neither the King nor the King in Parliament ought to be considered supreme in British Common Law and, at least in regard to the colonies, the king and Parliament were acting illegitimately; in doing so, they created the opportunity for the colonists to assert the legitimacy of their local governments and dissolve any necessity for submission to the government in England.
The primary source considered for Boucher’s argument is his 1775 sermon “On Civil Liberty, Passive Obedience, and Non-resistance” published as part of a collection entitled A View of the Causes and Consequences of the American Revolution.[2] Boucher begins his argument by giving a definition of liberty – “the only true liberty is the liberty of being the servants of God; for, his service is perfect freedom.”[3] This liberty is a freedom both from the yoke of bondage of the Mosaic law and the slavery of sin; it consists of an individual pursuing virtue and in being restrained from and eschewing vice. “[L]iberty consists in a subserviency to law [“whether human or divine].”[4] He claims that the liberty spoken of in Galatians 5:1 “cannot, without infinite perversion and torture, be made to refer to any other kind of liberty; much less to that liberty of which every man now talks, though few understand it. … The word liberty, as meaning civil liberty, does not, I believe, occur in all the Scriptures.”[5] Finally, Christian liberty “certainly gave [early Christians] no new civil privileges. They remained subject to the governments under which they lived.”[6]
Boucher then moves on to discuss obedience citing the early church as the example of his understanding of Christian civil obedience. This obedience is combined with submission to government’s authority; obedience is not merely a response to force, but to the recognition of the legitimacy of government authority as coming from God and the societal order it creates. Far from being free from civil obligations, “the duty of submission and obedience to Government was enjoined on the converts to Christianity with new and stronger sanctions.”[7] Obedience is in the individual’s interest because it is the command of God and because it results in the peace of the community.[8] Thus, to “pursue liberty, then, in a manner not warranted by law, whatever the pretence may be, is clearly to be hostile to liberty[.] … True liberty, then, is a liberty to do every thing that is right, and the being restrained from doing any thing that is wrong.”[9]
Common feeling, common consent, and equality come under Boucher’s attack as well. He argues that in “no instance have mankind ever yet agreed as to what is, or is not, ‘the common good.’ … What one people in one age have concurred in establishing as the ‘common good,’ another in another age have voted to be mischievous and big with ruin.”[10] Boucher begins his attack on consent theory by attacking the idea “that the whole human race is born equal; and that no man is naturally inferior, or, in any respect subjected to another; and that he can be made subject to another only by his own consent. The position [equality] is equally ill-founded and false both in its premises and conclusions.”[11] He argues that without inferiority and superiority government could not exist and that inequalities are readily visible in society. If such equality is asserted, neither the majority nor any authority including parental can bind the individual to government; “Neither can it be maintained that acquiescence implies consent; because acquiescence may have been extorted from impotence or incapacity.”[12]
If man is completely equal, nothing can bind him to government but his own consent which can be withdrawn whenever he sees fit. This would lead to a constant change of governments and undermine stability. Even in consenting to be ruled by another, one demonstrates inequality as one recognizes the other as better able to rule. For Boucher, equality and consent are tied together and failures in both demonstrate the need for a different source for governmental authority.
Boucher asserts that “[God’s] purpose from the first, no doubt, was, that men should live godly and sober lives.”[13] He thus grounds governmental authority in an extension of patriarchal authority – the “first father was the first king: and if (according to the rule just laid down) the law may be inferred from the practice, it was thus that all government originated; and monarchy is its most ancient form.”[14] This argument resists the error of the straw man argument of divine right expressed by John Locke in the first of his Two Treatises of Government. Boucher’s patriarchal argument for the origin of government does not rest on some direct descent from Adam and his heirs, it rests merely on the idea of patriarchal family government and its broader applications as society expanded. People “would naturally have been led to the government of a community, or a nation, from the natural and obvious precedent of the government of a family.”[15]
For Boucher, governmental power does not seem to be absolute. He argues that the first exercise of power was in Eve’s subjection to Adam, that it was ordained by God, and that it could only have been established by in interference by God in nature “(because God, had he so seen fit, might have ordained that the man should be subjected to the woman).”[16] Because all power flows from God, “It is, therefore, equally an argument against the domineering claims of despotism, and the fantastic notion of a compact.”[17] Government, no matter the form, “is to be regarded and venerated as the vicegerent of God.”[18] He cites as his justification both Christ’s actions and teaching vis-à-vis the state.
Because government is God-ordained and because man is commanded to submit to it, “All government, whether lodged in one or in many, is in its nature, absolute and irresistible. It is not within the competency even of the supreme powers to limit itself; because such limitation can emanate only from a superior.”[19] Obedience, active and passive is a Christian’s duty; resistance is rebellion against God. He argues that in the particular case of colonial resistance, “In the present state of things, when a resistance is recommended, it must be, not against the king alone, but against the laws of the land.”[20] He essentially conflates governmental authority and the person or persons entrusted with that authority – “in political consideration, it is hardly possible to dissociate the ideas of authority in the abstract from persons vested with authority. To resist a person legally vested with authority, is, I conceive, to all intents and purposes the same thing as to resist authority.”[21] He sees this particularly clearly in the colonial context. He argues, “The resistance which your political counselors urge you to practice…is not a resistance exerted only against the persons invested with the supreme power either legislative or executive, but clearly and literally against authority.”[22] He labels those political counselors as “men who weakly or wickedly imagine there can be liberty unconnected with law…”[23] He closes with an exhortation to submission to the government in England if all means of petition fail.
Boucher’s understanding of liberty is based on a Biblical understanding of the end of man. The end of man is to love God; an integral part of loving God is keeping His commandments.[24] Government, if it is aimed at human flourishing, ought to assist man in pursuing this end. Thus civil liberties (property, speech, suffrage, etc.), while perhaps beneficial, need not be included in every legitimate governmental system. His treatment of equality has significant merit as well, particularly his pointing out the inconsistency between belief and practice. His argument against consent theory is well thought out and points out the problems with attempting to establish government authority, as opposed to government systems, by popular consent. Not only would this consent have to be given with every reiteration of government, but every individual would have to freely consent. Such a system is unlikely ever to occur; if it did, it would utterly lack in stability.
Boucher’s conceptions of authority and the Christian duty to submit to governmental authority are, however, more problematic. Boucher conflates governmental authority with the individuals that possess the authority and seems to assert, absent anti-Biblical commands, that they can do no wrong; he asserts that person or persons in authority are sovereign under God.
This is not a historically accurate understanding of either authority or law. Plato writes of law: “Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state.”[25] Within Plato’s writings there is the idea that laws are discovered, not made; the legislator becomes almost merely a communicator of the law. “‘Tell us, legislator, if you were to discover what we ought to do and say, surely you’d tell us?’”[26]
Aristotle too sees a distinction between law and political rulemaking: “One part of the politically just is natural, and the other part legal. The natural has the same validity everywhere alike, independent of its seeming so or not. The legal originally makes no difference one way or another, but makes a difference when people have laid down the rule[.]”[27] St. Thomas Aquinas agrees, of course, stating that “law belongs to reason.”[28] This reason is God’s reason – “…his reason evidently govern the entire community of the universe. And so the plan of governance of the world existing in God as the ruler of the universe has the nature of law.”[29] “[N]atural law shares in the eternal law,” as does divine law, and human law derives from natural law.[30] From these three early thinkers we can see that law exists outside of human minds and is something in which humans are able to participate; humans do not make law, and law exists separately as a higher standard than human societal rules.
These principles were reflected in early English jurisprudence. Another distinction seen in English jurisprudence is the distinction between law and the force of law. Bracton, a thirteenth century English jurist wrote:
[In England] law derives from nothing written [but] from what usage has approved. Nevertheless, it will not be absurd to call English laws leges, though they are unwritten, since whatever has been rightly decided and approved with the counsel and consent of the magnates and the general agreement of the res publica, the authority of the king or prince having first been added thereto, has the force of law.[31]
Law is clearly not merely the decision of the governmental power. Law exists outside the government, and it is the government along with the people that discover law. Civil government exists to give law its enforcement. “The king has no equal within his realm … nor a fortiori a superior, because he would then be subject to those subjected to him. The king must not be under man but under God and under the law, because law makes the king … for there is no rex where will rules rather than lex.”[32] The king is to be guided and ruled by the law, not by his own will. Sir John Fortescue, a fifteenth century English jurist, has the same conception of a law higher than the will of man. “[T]he the definition of a law being thus, ‘It is an holy sanction, commanding whatever is honest, and forbidding the contrary.’”[33]
Christopher St. Germaine a fifteenth and sixteenth century lawyer and legal scholar wrote:
The law of nature specially considered, which is also called the law of reason, pertaineth only to creatures reasonable, that is, man, which is created in the image of God. …and therefore against this law, prescription, statute nor custom may not prevail: and if any be brought in against it, they be not prescriptions, statutes nor customs, but things void and against justice. All other laws, as well as the laws of God as to the acts of men, as other, be grounded thereupon.[34]
Not only are rulers separate from law, but the legislation they enact is prima facie void if it conflicts with the law of reason.
The great sixteenth century Anglican Theologian Richard Hooker continued this conception of law. “God therefore is a law both to himself, and to all other things besides.”[35] On the authority of civil government he writes: “The public power of all societies is above every soul contained in the same societies. And the principle use of that power is to give laws unto all that are under it; which laws in such case we must obey unless there be reason shewed which may necessarily enforce that the law of reason or of God doth enjoin the contrary.”[36]
Sir Edward Coke, the sixteenth and seventeenth century jurist agreed that law does not stem from the will of the ruler(s): “Common Law is nothing else but common reason; and yet we meane thereby nothing lesse, then that common reason where-with a man is naturally endued, but that perfection of reason which is gotten by long and continuall study[.]”[37]
And this is another strong argument in Law, Nihil quod est contra rationem est licitum. For reason is the life of the Law, nay the common Law it selfe is nothing else but reason, which is to be understood of an artificiall perfection of reason, gotten by long study, observation, and experience, and not of every man’s naturall reason, for, Nemo nascitur artifex. This legall reason, est summa ratio. And therefore if all the reason that is dispersed into so many severall heads were united into one, yet could he not make such a Law as the Law of England is, because by many successions of ages it hath been fined and refined by an infinite number of grave and learned men, and by long experience growne to such a perfection, for the government of this Realme, as the old rule may be justly verified of it, Neminem oportet esse sapientiorem legibus: No man (out of his owne private reason) ought to be wiser than the Law, which is the perfection of reason.[38]
This last selection from Coke firmly establishes that common law was considered supreme in England. It was not the king, and it was not the king-in-Parliament; the law was supreme. As such, it could not just be altered at whim. Continued developments in common law stemming from the civil government had to be in keeping with the past legal tradition.
Boucher failed to see this distinction – the distinction between authority and the force that authority conveys. Under the English system, law was the sovereign authority and the king and Parliament were entrusted with the expression and force of that authority. The government’s only claim to sovereignty could be in their participation in law. Thus, the force the government wielded and the submission due it by Christians is only legitimate insofar as the government does not contradict the law.
Boucher never examines the legitimacy of a particular government system as part of determining whether a Christian need submit to it. This is a grave error. Without due consideration of legitimacy, the Christian would find himself subject to anyone able to conjure the force necessary to impose their will on him. Because Boucher begins with a misunderstanding of the locus of sovereignty in the English governmental system, he is unable to establish a criteria for determining legitimacy. The Christian is left with law as pure will, first God’s and then the ruler(s)’s.
Boucher sets the king, or whatever group of people is ruling, outside of the law. If the law is universal, then it is binding on the king just as much as the lowest citizen and the king has just as much ability to contravene the law as that citizen. Boucher cannot conceive of this. Because there is no ability for the king to act illegally in his model, absolute submission is always the Christian’s duty and there is no such thing as an illegitimate government – at least once it has established control. An understanding that submission to and correct participation in law is what grants a government, monarchy or otherwise, legitimacy removes this problem.
Because of this faulty starting point, Boucher misunderstood the motives of the colonists and the implications of their actions. Boucher conflates law (authority) and force (political power); he thus saw the coming War for Independence as a war against authority. What he failed to see was that the colonists were maintaining their colonial governments, the governments that were not acting illegitimately. Because the colonists maintained their submission to those authorities and because the authorities in England were de-legitimizing their use of force by acting contrary to the common law, the struggle was not against authority but rather against an illegitimate power lacking authority trying to impose its will on the colonists. The colonists were actually retaining their submission to the higher authority – law. It was the king and Parliament who were rebelling; Boucher, because of his conflation of law and force, could never see the situation from that perspective. The American colonists better understood the danger posed them is law became nothing more than the will of the ruler; they maintained the importance of authority and of submission to that authority and the political authorities who also submitted to law.[1] Jonathan Boucher, “On Civil Liberty, Passive Obedience, and Non-resistance,” in The American Republic: Primary Sources, ed. Bruce Frohnen (Indianapolis: Liberty Fund, Inc. 2002), 159.
[2] Ibid.
[31] Henry Bracton, On the Laws and Customs of England, 2:19, in the Harvard Law School Library, http://hlsl5.law.harvard.edu/bracton/Unframed/English/v2/19.htm (accessed October 1, 2011).
[33] John Fortescue, De Laudibus Legum Angliae, trans. A. Amos (Cambridge: Cambridge University Press, 1825), 8. http://ia700409.us.archive.org/7/items/delaudibusleguma00fortuoft/delaudibusleguma00fortuoft.pdf (accessed October 1, 2011).
[34] Christopher Saint Germain, The Doctor and Student: or, Dialogues between a doctor of divinity and a student in the laws of England (Cincinnati: R. Clarke & co., 1874), 5. Google eBook.
[35]Richard Hooker, The Works of Richard Hooker (Oxford: Clarendon Press, 1888), 1:202 http://files.libertyfund.org/files/921/0172-01_Bk.pdf (accessed October 1, 2011).
[37] Edward Coke, Selected Writings of Sir Edward Coke, ed. Steve Sheppard (Indianapolis: Liberty Fund, 2003), 2:570. http://files.libertyfund.org/files/912/0462-02_LFeBk.pdf (accessed October 1, 2011).
