Frazer on the AR as a Just War with a Focus on Lesser Magistrates

Last year we noted Dr. Gregg Frazer's article in The Journal of Military Ethics on whether the American Revolution was a just war. We didn't get to analyze the article in depth because although it was initially downloadable, it was soon put behind a paywall. It looks like it's now free to the public again (but you never know how these journals and their algorithms will behave).

Even though Frazer argues the American Revolution was not a just war, other points of view are also represented there (so check that out too).

I want to focus on a particular part of Frazer's article. In his book, he discusses at length Romans 13's prohibition on rebellion and John Calvin's writings on lesser magistrates being able to lawfully restrain tyrannical rulers. But he subsequently received criticism that his book did not adequately deal with the Calvinistic line of thought on interposition from figures like Samuel Rutherford's "Lex Rex"  and the anonymous "Vindiciae, contra Tyrannos."

Frazer answers such criticism beginning on page 15 of the PDF. I am going to reproduce a section that starts on page 16: [I added paragraph breaks but didn't reproduce all of the emphasis added.]

Some readers might expect a discussion of appeals to the so-called ‘lesser magistrate’ or ‘interposition’ argument attributed to Calvin; that view says that lesser magistrates are similarly endowed by God with authority, that they may rebel against a higher magistrate (the King), and that the common people may then choose whether to support the higher or the lower magistrate. Such a discussion is not relevant, however, because neither Calvin nor the patriot preachers made such an argument. In my own study of dozens of the patriot sermons between 1750 and 1780, I could not find any that employed this argument (see Frazer 2012:69–106); and James Byrd (2013) makes no reference to it in his comprehensive look at the patriot sermons, either. Calvin himself did not make the ‘lesser magistrate’ argument; it was developed later by some of his disciples and their work had a degree of influence in Reformed circles.

There is not space here to fully demonstrate that Calvin would not have approved of it, but the distinction between Calvin’s statements and the ‘lesser magistrate’ notion can be briefly explained. Calvin does not say anything about ‘lesser’ magistrates in general, but addresses a particular type of magistrate (‘populares’) with legal authority to restrain the higher magistrate. The term ‘populares’ is ‘a term quite different in connotation from “inferior” or “lesser”’ (Skinner 1978: II: 230–234). The emphasis is not on the magistrate’s inferior or lesser position, but on the reason for its existence–its function in the political system. There are lesser magistrates in every political system, but Calvin specifies that his scheme only applies if this particular type of magistrate exists within a given political system. In those circumstances, Calvin urges the special ‘popular’ magistrates to act ‘in accordance with their duty’ to exercise lawful, systemic authority to veto or block executive actions (Institutes, IV: 20: XXXI, in Höpfl 1991: 82).

An American parallel would be the power of Congress to impeach and remove a president. But there is no mention or implication or hint of rebellion or revolution or extra-constitutional action or of people choosing sides between magistrates in Calvin’s scheme. Calvin stresses that ‘the punishment of unbridled tyranny is the Lord’s vengeance’ (Institutes, IV: 20: XXVI in Höpfl 1991: 82, emphasis added), but that the people ‘are not to imagine that it is we ourselves who have been called upon to inflict it’ (Institutes, IV: 20: XXVI in Höpfl 1991 :82). He further admonishes the people that ‘all that has been assigned to us is to obey and suffer’ (Institutes, IV: 20: XXVI in Höpfl 1991: 82).

The notion of suffering is lost in the many interpretations of Calvin that promote rebellion. He actually provides three specific historical examples to try to ensure that his position would not be misunderstood– but to no avail. 2 Calvin did not cite examples of revolutions to overthrow tyrants; he cited offices and officers given legal authority within their regimes to restrain the ‘licentiousness and frenzy of kings’ (Institutes, IV: 20: XXXI, in Höpfl 1991:82–83). Although some scholars and commentators interpret Calvin in such a way as to make him support rebellion or revolution by lesser magistrates, one must add to or change Calvin’s words in order to produce that result.

For those literate in political theory, one place that the ‘lesser magistrate’ argument could be found was in Vindiciae, contra Tyrannos, an anonymous sixteenth-century Huguenot essay. At least one of the Revolutionary leaders, John Adams, read it and called it influential. Vindiciae makes the King the creature of the people, makes the people the proper judge of the King, and presents the lesser magistrate option as a cure for tyranny (O’Donovan & O’Donovan1999: 714–722). Some of the patriots found the arguments of the Vindiciae useful.

The primary theoretical source for preachers and for politicians seeking to justify the Revolution was, of course, John Locke’s Second Treatise of Government. Locke similarly makes the King the creature of the people and makes the people the judge of the King, but his solution to the King’s tyranny was even more attractive and valuable for the American revolutionaries because it allowed them to deny that they were revolutionaries. Locke famously argues that whoever uses force without right violates the social contract and becomes a ‘rebel’ to the community; if the King is a tyrant using unlawful force, he becomes a rebel and the people who seek to depose him are merely defending themselves (Second Treatise of Government, par. 226–243, in Locke 1988: 398–428). This scheme allows one to engage in revolution, but not suffer the label ‘revolutionary’.

The American people were fed Lockean thought and were heavily influenced by it because the patriot ministers preached it from the pulpits (Frazer 2012: 85–106). Jonathan Mayhew was particularly important in converting to the Revolutionary cause congregations raised on Calvin’s and the Bible’s teaching concerning submission and non-resistance. Mayhew (1750) turned the teaching of Romans 13 on its head and made it into an argument for revolution in his ‘Discourse Concerning Unlimited Submission and Non-Resistance to the Higher Powers’. It was invaluable in convincing people raised in Calvinism to support rebellion. This sermon was so influential that it has been described as the ‘morning gun of the Revolution’ (Thornton 1860: 43). John Adams said that if anyone wants to understand ‘the principles and feelings which produced the Revolution, they ought to study ... Dr. Mayhew’s sermon’ (letter to William Tudor, 5 April 1818, in Adams 1856: 301); and he further remarked that it was ‘read by everybody’ (letter to H. Niles, 13 February 1818, in Adams 1856: 288). Subsequent preachers such as Samuel West followed Mayhew’s lead and Locke’s principles infiltrated the populace via the Revolutionary pulpit.

It has been established that the American leaders at the time the war began (and even after) were, by their own admission, under the authority of Great Britain and were English subjects. Consequently, they were not sovereign authorities, they had a superior, and they were not properly authorized in their charters or anywhere else in British law to declare war. Locke provided a theoretical justification dependent on a fictitious base (state of nature and social contract). If Locke’s theory is correct – and if the British government was in fact tyrannical – then the American people had the right to create a new legislature with authority to use force to defend them. The American Revolution fails the ‘just war’ test by the first standard unless one considers revolutionaries to be legitimate authorities.

My thoughts: Frazer does make an important concession that John Adams, among others, was influenced by "Vindiciae, contra Tyrannos," but still argues -- correctly as far as I can tell -- it was Locke who was much more important.

Elsewhere we have observed there is no connection we are aware of between Locke on the one hand and Samuel Rutherford and the other Calvinist "resisters" on the other. Frazer also points out the sermons with which he is familiar cited Locke and not the Calvinist resisters.

A problem exists in that era in that they didn't tend to credit their sources like academics do today. We know Thomas Jefferson cribbed parts of Locke's 2nd Treatise when writing the Declaration of Independence; but he doesn't cite him.

So one could argue, in the absence of a citation like "as Mr. Locke argues" or "in Lex Rex ...," where the ideas came from is debatable. Daniel Dreisbach noted to me, off the record, Jonathan Mayhew doesn't cite or name his influences in his sermon, so it's debatable where he got the ideas from.

Locke and the Calvinist resisters, though they had similar ideas, still had meaningful differences both conceptually and linguistically. If you hear a preacher talking about "state of nature" and "contract and rights," it's Locke, not the Calvinist resisters. The most famous Presbyterian American Revolutionary was John Witherspoon. And I know that he was influenced by Locke as he used the aforementioned Lockean terms.

Was he influenced by the Calvinist resisters? Where is the evidence? Can we find it here in Dr. Jeffrey Morrison's piece on the man? What about the other Presbyterian and Calvinist preachers in America? Did they cite the Calvinist resisters?