When an angry mob stormed the US Capitol last month, some of them at least seemingly bent upon a violent overthrow of constitutional government, Americans were shocked and bewildered. How had anger over a “stolen” election morphed into a call for full-blown revolution? How did “fight like hell” metastasize from an overheated metaphor to a genuine call to arms?
As imagery and footage emerged in the succeeding days and weeks, the answers to these questions proved if anything more disturbing: for many Americans smashing Capitol windows and hunting down “treasonous” congressmen, theirs was no mere political cause, but a religious one, one steeped in Christian rhetoric and symbolism. One flag waving over the crowd, emblazoned with a tree and the slogan “An Appeal to Heaven” garnered particular attention as a symbol of so-called “Christian nationalism’s” effort to “take America back for God,” as the title of a recent book by Andrew Whitehead and Samuel Perry has it. This flag, however, tells a much more complex story, one rooted in the very heart of the liberal theory that those aghast at the events of January 6 claim to champion.
Known as the “Pine Tree Flag,” it was first commissioned in October 1775 by none other than George Washington as the insignia for the first American navy. The pine tree had long been a traditional symbol of New England, but what of the phrase “appeal to heaven”? Both the phrase and the concept were commonplace in Revolutionary-era speeches and documents, including Patrick Henry’s famous “Liberty or Death” speech, signifying the colonists’ conviction that theirs was a righteous cause which God himself would vindicate. It also betrayed, however, a more secular source of the colonists’ revolutionary ideals: John Locke’s Second Treatise on Government.
Locke first uses the phrase in chapter three of the treatise, “On the State of War,” writing, “For whenever violence is used, and injury done, though by hands appointed to administer justice, it is still violence and injury… [and] war is made upon the sufferers, who having no appeal on earth to right them, they are left to the only remedy in such cases, an appeal to heaven.”[1] Locke goes on to reference scripture in support of this notion:
Had there been… any superior jurisdiction on earth, to determine the right between Jeptha and the Ammonites, they had never come to a state of war, but we see he was forced to appeal to heaven. “The Lord the Judge,” says he, “be judge this day between the children of Israel and the children of Ammon” (Judges 11.27), and then prosecuting, and relying on his appeal, he leads out his army to battle.
This concept recurs frequently throughout the treatise, comprising in fact the backbone of Locke’s argument in this, his most famous work. Locke’s essential thesis is straightforward. Within a sovereign nation, disputes are settled by the rule of law, by appeal to a superior judge who can declare one party to be in the right and the other in the wrong. But between sovereign nations, what such judge can there be? Writing long before the development of international courts that could administer international law (or attempt to, at any rate), seventeenth-century political theorists generally accepted that sovereign nations were in a “state of nature” relative to one another—that is, having no human judge over them, they were bound only by conscience, standing before the tribunal of the Heavenly Judge. Only he could decide who was in the right, by granting one or the other victory in war, the only earthly means by which they might prosecute their cause. Locke’s innovation (anticipated in some measure by Hobbes) was to take this concept of international relations and apply it to domestic relations: What happens when sovereignty lapses within a sovereign nation—by violation of original contract, or the assault of one branch of government on another—and two domestic parties contend for justice within it? Lacking an agreed-upon basis for judging between them, they are thrust into a state of nature, and therefore a state of war, and their only appeal can be to heaven.
In adopting the phrase “an appeal to Heaven,” however, Locke is in fact engaged in some rather clever sleight-of-hand against his Tory opponents. For a century and a half, debate had raged among both Protestant and Catholic political theorists over what rights of resistance, if any, an aggrieved people had against a tyrannical ruler. Although several forms of lawful resistance theory had been elaborated, a majority of English writers still held that in such an event, the people had no recourse except prayer and repentance. There being no one on earth to whom they could lawfully appeal, they must “appeal to heaven” and ask God to deliver them in his own time, by his own means. Reasoning that God helps those who help themselves, however, Locke suggested cheekily by his invocation of Jeptha that an appeal to heaven in no way excludes a call to arms. Locke’s “appeal to heaven” is thus an appeal to the earthliest means of all—the sword—trusting that God will vindicate the injured party and ensure the defeat of the guilty.
Whether Locke in fact trusted in this, or simply used it as a pious metaphor, is certainly open to question. To be sure, for long centuries of Christendom it had been a basic article of faith that God intervenes providentially in the affairs of nations to bless the faithful and curse the unfaithful. Righteous nations can expect his aid in war; wicked nations can expect military defeat and pestilence. Such a confidence had animated Locke’s ancestors in their heroic stand a century earlier against the Spanish Armada, and it would continue to animate American colonists in their struggle against Britain a century later. John Jay, for instance, in his 1776 Address of the Convention of New York, had spoken for many when he said, “If we turn from our sins, he [God] will turn from his anger. Then our arms will be crowned with success and the pride and power of our enemies… will vanish away.”[2] Locke, however, would pointedly reject the theological assumptions on which this providentialist view of history was founded in his famous Letter Concerning Toleration, where he dismissed the idea that God would punish with temporal suffering a nation that tolerated spiritual errors. Without this rejection, it should be noted, Locke’s entire argument for toleration, later breezily summarized in Jefferson’s remark that “it does me no injury for my neighbour to say that there are twenty gods, or no god,” collapses—for if my neighbor’s unbelief leads to enemy invasion, it does me quite an injury indeed! If, contrariwise, Locke means the “appeal to heaven” as a mere pious metaphor for the state of war, we are left with the mere cynical observation that, when the rule of law breaks down, when right loses its might, then might will of necessity make right.
From this perspective, the logic of Locke’s “appeal to heaven” casts a chilling light on the events of January 6. For the angry protestors smashing the barricades on Capitol Hill, right had lost its might. Convinced that the ballot box had failed them, the courts had failed them, and Congress was about to fail them; convinced indeed that this was no one-off miscarriage of justice, but the culmination of a “long train of abuses and usurpations” seeking “to reduce them under absolute despotism,” the zealous would-be patriots concluded that the rule of law was at an effective end, and politics as usual had given way to a state of war between governors and governed. In a remarkable passage of the Second Treatise, Locke argues that, whether or not anyone concedes the force of his argument for such a right to revolution, it will not change human nature—and human nature being what it is, a state of war will result when faith in the rule of law collapses:
But whatever flatterers may talk to amuse people’s understandings, it hinders not men from feeling: and when they perceive that any man, in what station soever, is out of the bounds of the civil society which they are of, and that they have no appeal on earth against any harm they may receive from him, they are apt to think themselves in the state of nature in respect of him whom they find to be so.[3]
Indeed, it may well be that Locke had more than Jeptha on his mind when he described the appeal to arms as an “appeal to heaven.” Centuries earlier, the English common law, like many other medieval customary laws, had permitted several forms of trial for those accused of a crime, none of which we are likely to think of as proper trials at all, in the legal sense: trial by compurgation, trial by ordeal, and trial by combat. By the first, an accused man convinced a sufficient number of his friends and acquaintances to swear to his innocence, thus “purging” him of guilt. By the second, he was forced to walk over hot coals or immerse his hand in boiling water, and if the burns healed quickly, he was deemed innocent. By the last, he was forced to fight his accuser to the death, trusting to the sword for his vindication. Barbaric as these latter two sound to us, both were seen at the time as the most reliable appeal one could make: an appeal to heaven. God himself, it was generally believed, would acquit the innocent by protecting him in the ordeal or the combat; similarly, God would ensure that any false accuser justly perished in the trial by combat. Although the practice of compurgation gradually evolved into what we now know as trial by jury, many medieval Englishmen were profoundly distrustful of the newfangled idea of submitting one’s guilt or innocence to the judgment of untrustworthy mere mortals. Even many innocent defendants preferred to resort to the ordeal or combat, and had to be forced to accept jury trial; in fact, trial by combat was not formally abolished in English law until well after Locke’s time, and its equivalent, the duel or “affair of honor,” was commonplace in Europe and America until the nineteenth century.
This preference for combat over orderly trial seems bewildering to us, but it was entirely logical in a society that had not yet developed a strong trust in the reliability of the rule of law. If you cannot trust your fellow men to deliver justice, then naturally you must appeal to heaven.
So it is again in America today, and this is the sobering lesson that the reappearance of the Pine Tree Flag has to teach us. Whether rightly or wrongly, an increasing number of Americans have so lost faith in the rule of law, so lost faith in the fallible imperfect institutions to which they have entrusted their administration of justice, that they have gone beyond mere calls for reform and retrial. They have concluded that these institutions are a mere sham, that we are now “out of civil society” and in “a state of nature” vis-à-vis our fellow citizens, and with no common judge on earth that we can trust any longer, we have no hope but to appeal to heaven. For some adopting this slogan, it represents a devout faith, like that of John Jay and many at the time of the American Revolution, that God indeed will fight for us if we turn to him in repentance, and will renew America as the Christian nation they believe it once was. Given the deep and broad reality of religious and cultural pluralism in America today, this vision is a troubling one, an invitation to a civil war with little chance of a happy ending. For others adopting the slogan, however, the “appeal to heaven” is an empty metaphor for a nihilistic appeal to arms; a conviction that if we cannot trust others to give us justice, we will do it ourselves, by whatever means necessary. This political vision, shorn of any real faith in the transcendent and disturbingly akin to that which increasingly prevails on the cultural and political Left, is considerably more troubling, an invitation to unending civil war with no chance of a happy ending.
Faced with this peril, let us appeal to heaven indeed, and not to arms, asking God to mercifully grant to our troubled nation a peace that it perhaps no longer deserves, a breathing space within which we can rebuild the fractured bonds of justice.
[1] John Locke, Political Writings, edited by David Wootton (Indianapolis: Hackett, 2003), 271.
[2] John Jay, An Address of the Convention of the Representatives of the Sate of New-York to Their Constituents (Fish-Kill, NY: S. Loudon, 1776), 11, quoted in Jonathan den Hartog, “ ‘The Cause of God, of Human Nature, and Posterity’: John Jay and Justice in the American Revolution,” in Glenn A. Moots and Philip Hamilton, eds, Justifying the Revolution: Law, Virtue, and Violence in the American War of Independence (Norman, OK: University of Oklahoma Press, 2018), 252.
[3] Locke, Political Writings, 308.
