The Scottish crown was never, in its original constitution, an absolute inheritance. From the founding of the kingdom under Fergus I through the medieval period, Scottish monarchs were elected by the estates of the realm — the nobility, clergy, and representatives of the commons acting together to elevate a king who would govern under law. This historical reality stands as a powerful refutation of the divine-right absolutism that later Stuart monarchs attempted to impose, and it forms a critical link in the constitutional chain running from ancient practice through the Reformation and into the principles that shaped American self-government.
Elective Kingship Under Fergus I and His Successors
Samuel Rutherford traces the Scottish monarchical tradition from its earliest origins to demonstrate a consistent pattern: kings were made by the people, not the people by kings. Fergus I, whom Rutherford cites from traditional Scottish historiography as the first Scottish monarch, did not seize power by conquest or claim it by divine appointment. According to this tradition, he was elevated by the consent and choice of the Scottish estates. This elective principle was not a one-time concession but a recurring constitutional feature. Successive monarchs came to power through a process of selection, with the estates retaining the authority to choose who would lead them.
This pattern carried forward for generations. The elective nature of early Scottish kingship meant that the relationship between crown and people was inherently conditional. A king ruled because the community had granted him that authority, and the community expected governance that reflected its interests and customs. The concept of an unchecked sovereign, answerable to no one but God, had no basis in this tradition.
Parliamentary Consent as Constitutional Requirement
The elective principle quickly produced a formal institutional check: the requirement of parliamentary consent for major governmental decisions. Rutherford highlights the reign of Finnanus, the tenth Scottish king, who formally decreed that nothing of major importance — including war, peace, and treaty-making — could be undertaken without the authority of parliament. This was not a radical innovation but a codification of existing practice. The estates had always expected consultation; Finnanus made it explicit law.
Subsequent monarchs reinforced this constitutional structure by swearing oaths at their coronation promising to govern only by the counsel of parliament’s primary members. These oaths were not empty ritual. They represented a binding compact: the king received his authority from the estates, and in return he pledged to exercise that authority within the boundaries the estates defined. The oath was the contractual seal on what was already an elective, conditional grant of power. This principle — that rulers are bound by covenantal obligation to those who grant them authority — is central to the broader framework of popular sovereignty and consent of the governed that Rutherford develops throughout Lex Rex.
Parliamentary Reclamation of Authority
The constitutional structure was not merely theoretical. When kings violated their oaths or governed in ways that harmed the commonwealth, the estates acted. Rutherford records the case of King Thereus, who fled his responsibilities, prompting parliament to select a regent in his place. This was not treated as rebellion or usurpation — it was the constitutional process working as designed. The crown was ultimately accountable to the estates that had granted it. If the king abandoned his post or abused his office, the estates possessed the inherent authority to reclaim the power they had delegated and vest it in a more faithful steward.
This precedent established a principle that would echo through centuries of constitutional development: legitimate government depends on the ongoing consent of the governed, and when that consent is violated, the people — acting through their institutional representatives — retain the right to correct the situation. The Scottish estates exercised what later theorists would call the right of resistance, but they did so through established institutional channels, not through mob action or anarchy. This distinction between lawful civic resistance through representative bodies and mere revolution is one that Rutherford and other Reformed political theologians insisted upon. The broader pattern of such actions is explored in historical examples of lawful civic resistance.
Connection to the Broader Constitutional Tradition
The Scottish elective tradition did not exist in isolation. It paralleled and reinforced similar developments in English constitutional law — the Anglo-Saxon legal tradition that produced customary limitations on royal power, and the later struggles that produced the Magna Carta. Together, these British constitutional developments formed a coherent tradition: kings govern under law, not above it. The law is king — lex rex — not the king law.
Rutherford’s purpose in marshaling this Scottish historical evidence was directly polemical. Writing against royalist absolutists who claimed kings held power by divine right and owed accountability to no earthly authority, Rutherford demonstrated that the actual historical record of Scotland’s own monarchy flatly contradicted their claims. The Scottish kings themselves had acknowledged parliamentary authority. Their oaths were public, their limitations were real, and parliament had exercised its corrective power when necessary. Rutherford’s detailed treatment of these precedents forms a key chapter in Lex Rex, building the case that constitutional limitation of executive power is not a modern innovation but an ancient and well-established practice.
This constitutional argument carried directly into the Reformed resistance tradition. Calvin’s doctrine of the lesser magistrate provided the theological framework, while the Scottish historical record provided the practical proof: representative bodies had always held authority over kings, and exercising that authority against a tyrannical or derelict monarch was not rebellion but constitutional duty. The Scottish parliamentary tradition also informed the thinking of John Knox, who drew on his nation’s own history when challenging the legitimacy of monarchs who violated their covenant with the people.
Relevance for the Prepared Citizen
Understanding the elective and constitutional origins of kingship is not merely academic. The principle that government authority is delegated from the people, conditional on performance, and recoverable by the people when abused is the foundation of American constitutional order. The Declaration of Independence did not invent these ideas — it inherited them from centuries of British constitutional practice, refined through Scottish and English experience and articulated by theologians like Rutherford. The American tradition of citizen-soldiers standing ready to defend their communities rests on this same constitutional bedrock: authority flows upward from the people, and the people bear responsibility for maintaining the conditions of ordered liberty. The constitutional limits on monarchical authority that the Scottish estates enforced are the direct ancestors of the constitutional limits that American citizens are charged with upholding today.