Lex Rex, Question 31
QUEST. XXXI. Whether or no self-defence against any unjust violence offered to the life, be warranted by Gods Law, and the Law of Nature and Nations?
SElfe-preservation in all creatures in which is nature, is in the creatures sutable to their nature: The Bull defendeth it selfe by its hornes,Self-defence naturall the Eagle by her clawes and bill, it will not follow that a Lambe will defend it selfe against a Wolfe any other way, then by flying. So men, and Christian men doe naturally defend themselves; but the manner of self-defence in a rationall creature, is rationall, and not alwayes meerely naturall: therefore a politique communitie, being a combination of many natures, as neither grace, farre lesse can policy destroy nature, then must these many natures be allowed of God to use a naturall self-defence. If the King bring in an Army of forraigners, then a politique community must defend it selfe in a rationall way; Why? Self-defence is naturall to Man, and …a…urall to a Lamb, but not the same way; A Lamb or a Dove naturally defend themselves against beasts of another kinde, onelyonly by flight, not by re-action and re-offending: But it followeth not that a man defendeth himselfe from his enemy only by flight; If a robber invade me, to take away my life and my purse, I may defend my s…lfe by re-action; for reason and grace both may determine the way of self-preservation: Hence Royalists say, a private man against his Prince, hath no way to defend himselfe, but by flight; Ergo, a community hath no other way to defend thems…lv…s, but by flight. 1. The antecedent is false.D. Ferne alloweth the resistance of denying of Tribute to a tyranous Prince. Dr. Ferne alloweth to a private man supplications, and denying of Subsidies, and Tribute to the Prince, when he imployeth Tribute to the destruction of the Common-wealth; which by the way, is a cleere resistance, and an active resistance made against the King, Rom. 13.6, 7. and against a Commandement of God, except Royalists grant tyrannous powers may be resisted. 2. The consequence is naught, for a private man may defend himselfe against unjust violence, but not any way he pleaseth; The first way is by supplications and apologies, he may not presently use violence to the Kings servants before he supplicate, nor may he use re-offending, if flight may save. David used all the three in order;Apologies, Supplication…, Flight, taking of A…mes lawfull in self-defence. 1. He made his defence by words, by the mediation of Ionathan; when that prevailed not, he tooke himselfe to flight, as the next; but because he knew flight was not safe every way, and nature taught him self-preservation, and reason and light of grace taught him the meanes, and the religious order of these meanes for self-preservation. Therefore he addeth a third, He took Goliahs sword, and gathered six hundred armed men, and after that made use of an hoast. Now a sword and armour are not horsing and shipping for flight, but contrary to flight; so re-offending, is Policies last refuge. A godly magistrate taketh not away the life of a subject, if other means can compasse the end of the Law; and so he is compelled and necessitated to take away the life:Violent re-offending in self-def…nce the last … so the private man, in his naturall self-defence, not to use re-action, or violent re-offending, in his self-defence against any man, farre lesse against the servants of a King, but in the exigence of the last and most inexorable necessity.… And it is true that M. Symmons saith, Sect. 11. pag. 35. Self-defence is not to be used, where it cannot be without sinne. It is certaine, Necessity is but a hungry plea for sinne, Luke 14.18. but it is also true, re-offending comparatively, that I kill rather then I be killed,… in the sinlesse Court of Natures spotlesse and harmelesse necessity, is lawfull and necessary, except I be guilty of self-murd…r, in the culpable omission of s…lf-defence. Now a private man may flie, and that is his second necessity, and viol…nt re-offending is the third meane of self-preservation. But with leave, violent re-offending is necessary to a private man, when his second meane, to wit, flight, is not possible, and cannot attaine the end, as in the case of David: if flight doe not prevaile, Goliahs sword and an host of armed men are lawfull: So to a Church and a community of Protestants, men, women, aged, sucking children, sick, and diseased, who are pressed either to be killed, or forsake Religion and Jesus Christ, flight is not the second meane, nor a meane at all because 1. not possible, and therefore not a naturall meane of preservation: For 1. the aged, the sick, the sucking infants, and sound Religion in the posteritie cannot flee,… a Church or nation not … mean of sel…defence alway possible, and so not required of God. flight here is physically and by natures necessity unpossible, and therefore no lawfull mean. What is to nature physically unpossible, is no lawfull mean. 2. If Christ have a promise that the ends of the earth, Psal. 2.8. and the Isles shall be his possession, Esa. 49.1. I see not how naturall defence can put us to flee, even all Protestants, and their seed, and the weak and sick, whom we are obliged to defend as our selves, both by the Law of nature and grace. I read that seven wicked nations and idolatrous were cast out of their land to give place to the Church of God,to dwell there, but shew me a warrant in natures Law and in Gods word that three Kingdomes of Protestants, their seed, aged, sick, sucking children, should flee out of England, Scotland, Ireland, and leave Religion and the Land to a King and to Papists, Prelates and bloody Irish, and Atheists: and therefore to a Church and community having Gods right and mans law to the land, violent re-offending is their second mean (next to supplications and declarations, &c.) and flight is not required of them, as of a private man. Yea flight is not necessarily required of a private man, but where it is a possible mean of self-preservation, violent and unjust invasion of a private man, which is unavoidable may be obviated with violent re-offending. Now the unjust invasion made on Scotland in 1640. for refusing the Service-book, or rather the idolatry of the Masse, therein intended, was unavoidable, it was unpossible for the Protestants, their old and sick, their women and sucking children to flee over sea, or to have shipping betwixt the Kings bringing an army on them at Duns-law, and the Prelates charging of the Ministers to receive the masse-book; Althusius saith well, Pol. c. 38. n. 78. Though private men may flee; but the estates if they flee, they do not their duty to commit a country, religion and all to a Lion. L…t not any object, we may not devise a way to fulfill the prophecy, Psal. 2.8, 9. Isa. 49.1. it is true, if the way be our own sinfull way; nor let any object, a Colony went to New-England and fled the persecution. Answer, True, but if fleeing be the onelyonly mean after supplication, there was no more reason that one Colony should go to New-England, then it is necessary & by a divine law obligatory, that the whole Protestants in the three kingdomes according to Royalists Doctrine, are to leave th…ir native country, & religion to one man & to popish Idolators & Atheists willing to worship idols with them, and whethere then shall the Gospel be, which we are obliged to defend with our lives?
2. There is Tutela vitae proxima, & remota. A self defence remote, and a self-defence neere-hand.A meer and immediat defence of our life, and a remote or mediat defence; when there is no actuall invasion made by a man seeking our life, we are not to use violent re-offending. David might have killed Saul, when he was sleeping, and when he cut off the lap of his garment, but it was unlawfull for him to kill the Lords Anointed, because he is the Lords Annoited, as it is unlawfull to kill a man, because he is the Image of God, Gen. 9 6. except in case of necessity; The magistrate in case of necessity may kill the malefector, thought his malefices do not put him in that case, that he hath not now the image of God;When David had Saul in his hand, he was in a c…se of actuall self-defence, Saul being in a habituall unjust pursuit. now prudency and light of grace determineth, When we are to use violent re-offending for self-preservation, it is not left to our pleasure. In a remote posture of self-defence, we are not to use violet re-offending, David having Saul in his hand was in a remote posture of defence, the unjust invasion then was not actuall, not inavoidable, not a necess…ry mean in human prudence for self-preservation, for King Saul was then in a habituall, not in an actuall pursuit of the whole Princes, Elders and judges of Israel, or of a whole community and Church; Saul did but seek the life of one man, David, and that not for religion, or a nationall pretended offence, and therefore he could not in conscience put hands on the Lords anoynted; but if Saul had actually invaded David for his life, David might in that case make use of Goliahs sword, (for he took not that weapon with him as a Cypher to boast Saul, it is no lesse unlawfull to thr…atten a King then to put hands on him) and rather kill or be killed by Sauls emissaries: Because then he should have been in an immediate and nearest posture of actuall self-defence. Now the case is farre otherwayes between the King, and the two Parliaments of England, and Scotland, for the King is not 1. Sleeping in his emissari…s, for he hath armies in two kingdomes, and now in thre… kingdomes,… was in, when he came arm…e upon King Saul sleeping. by sea and land, night and day in actuall pursuit, not of one David, but of the estates, and a Christian community in England and Scotland, and that for Religions, Lawes and Liberties, for the question is now betweene Papist and Protestant, between Arbitr…ry or Tyranicall government, and law-government, and Therefore by both the Lawes of the politique societies of both Kingdomes, and by the Law of God and nature, we are to use violent re-off…nding for s…lf-preservation, and put to this necessity when armies are in actuall pursuit of all the Protestant Churches of the suff…r …awes, and Religion to be undone. But saith the Royalist, Davids argument, God forbid that I stretch out my hand against the Lords Anno…nted, my Master the King, concludeth universally, that the King in his most Tyrannous acts, still remaining the Lords Anoynted, cannot be resisted. Ans. 1. David speaketh of stretching out his ha…d against the person of King Saul: no man in the three Kingdomes, did so much as attempt to do violence to the Kings person. … D. Fe…ne.But this argument 2. is inconsequent, for a King invading in his own Royall person, the innocent subject, 1. Suddainly. 2. Without col…ur of Law and reason. 3. Unavoidably, may be personally resist…d, and that with opposing a violence bodily, yet in that invasion he remaineth the Lords Annoynted. 2. By this argument the life of a murtherer cannot be taken away by a Judge, for he r…maineth one endued with Gods image, and keepeth stil the nature of a man under all the murthers that he doth, but it followeth no wayes, that because God hath indowed his person with a sort of Royalty, of a Divine image, that his life cannot be taken; and certainly, if to be a man endued with Gods image, Gen. 6.9, 10. and to bee an ill doer worthy of evill punishment are different; to be a King, and an ill doer may be distinguished.
The grounds of self-defence are these; A woman or a young man may violently oppose a King, if he force the one to adultery and incest, and the other to Sodomy; Though Court-flatterers should say, the King in regard of his absolutenesse is Lord of life and death; yet no man ever said, that the King is Lord of chastity, faith, and oath that the wife hath made to her husband.
2. Particular nature yeelds to the good of universall nature,The law of universall and particular nature warranteth s…lf-defence. for which cause heavie bodies ascend, aerie and light bodies descend; If then a wilde Bull or a goaring Oxe, may not be let loose, in a great market-confluence of people; and if any man turne so distracted, as he smite himselfe with stones and kill all that passe by him, or come at him; in that case the man is to be bound, and his hands fettered, and all whom he invadeth may resist him, were they his owne sons, and may save their owne lives with weapons; much more a King turning a Nero: King Saul vexed with an evill spirit from the Lord, may be resisted; and fa…re more if a King indued with use of reason, shall put violent hands on all his subjects, kill his son and heire; yea, any violently invaded, by natures law, may defend themselves, and the violent restraining of such an one is but the hurting of one man, who cannot be virtually the Common-wealth; but his destroying of the community of men sent out in warres, as his bloody emissaries, to the dissolution of the Common-wealth.
3. The cutting off of a contagious member, that by a Gangrene, would corrupt the whole body, is well warranted by nature, because the safety of the whole is to be preferred to the safety of a part: Nor is it much that Royalists say the King being the head, destroy him, & the whole body the Common-wealth is dissolved; as cut off a mans head, & the life of the whole man is taken away; Because, 1. God cutteth off the spirits of tyrannous Kings, and yet the Common-wealth is not dissolved,This or that King not the adequat head of the community. no more then when a Leopard or a wilde Boare, running through children is killed, it can be the destruction of all the children in the land. 2. A king indefinitely is referred to the Common-wealth as an adequat head to a Monarchicall Kingdome, and remove all Kings and the politique body as Monarchicall, in its frame, is not Monarchicall, but it leaveth not off to be a politique body, seeing it hath other Judges, but the naturall body without the head cannot live. 2. This or that tyrannous King, being a transient mortall thing, cannnot be referred to the immortall Common-wealth, as it is adequat correlate. They say, the King never dieth, yet this King can dye; an immortall politique body, such as the Common-wealth, must have an immortall head, and that is a King as a King; not this or that man, possibly a tyrant, who is for the time (and eternall things abstract from time) onelyonly a King.
4. The reason of Fortunius Garcias a skilfull Lawyer in Spaine is consid…rable, Coment. in l. ut vim vi ff. de justit. & jure. God hath impl…nted in every creature naturall inclinations, and motions to preserve it selfe, and we are to love our self for God, and have a love to preserve our selves rather then our neighbour, and Natures law teacheth every man to love God best of all, and next our selves more then our neighbour; for the Law saith, Thou shalt love thy neighbour as thy selfe; then (saith Malderus com. in 12. q. 26. tom. 2. c. 10. concl. 2.) The love of our selfe, is the measure of the love of our neighbour. But the rule and the measure is more perfect, simple, and more principall then the thing that is measured: It is true, I am to love the salvation of the Church, it comming neerer to Gods glory, more then my owne salvation,Exod 32. Rom 9. as the wishes of Moses and Paul do prove; and I am to love the salvation of my brother, more then my owne temporall life; but I am to love my owne temporall life, more then the life of any other, and therefore I am rather to kill,The love of our selfe the rule and measure of our love to our neighbour. then to be killed, the exigence of necessity so requiring; Nature without sin aimeth this as a truth, in the case of losse of life; Proximus sum egomet mihi. Ephes. 5.28, 29. He that loveth his wife, loveth himselfe; for no man ever yet hated his owne flesh, but nourisheth it, and cherisheth it, even as the Lord the Church. As then nature tyeth the dam to defend the young birds, and the Lyon her whelps, and the husband the wife,We are to … our brethrens salvation aobve our l…fe, not their life a…ove our owne. and that by a comparative re-offending, rather then the wife or children should be killed; yea, hee that is wanting to his brother, (if a robber unjustly invade his brother) and helpeth him not, is a murtherer of his brother so farre, Gods spirituall law requiring both conservation of it in our person, and preservation in others. The forced Damsell was commanded to cry for help, and not the Magistrate onelyonly, but the neerest private man or woman was to come, by an obligation of a divine Law of the seventh Commandement, to rescue the Damsell with violence; even as a man is to save his enemies Oxe or his Asse out of a pit: And if a private man may inflict bodily punishment of two degrees, to preserve the life and chastity of his neighbour, far rather then suffer his life and chastity to be taken away, then he may inflict violence of foure degrees even to killing, for his life, and much more for his owne life. So when a Robber, with deadly weapons invadeth an innocent traveller to kill him, for his goods, upon the supposition that if the Robber be not killed, the innocent shall be killed; Now the question is, which of the two, by Gods morall Law and revealed will in point of conscience, ought to be killed by his fellow; for we speake not now of Gods eternall decree of permitting evill, according to the which murtherers may crucifie the innocent Lord of glory: by no morall Law of God, should the u…just robber kill the innocent traveller, therefore in this exigence of providence, the traveller should rather kill the robber. If any say, by Gods morall Law not one should kill his fellow; and it is a sin against the morall Law in either to kill other; I answer: If a third shall come in when the robber and the innocent are invading each other for his life, all acknowledge by the sixt Commandement, the third may cut off the robbers arme to save the innocent; but by what Law of God he may cut off his arme, he may take his life also to save the other; for it is murther to wound unjustly, and to dismember a man by private authority, as it is to take away his life: If therefore the third may take away the robbers member, then also his life, so hee doe it without malice or appetite of revenge, and if he may doe it out of this principle, Thou shalt love thy neighbour as thy selfe; because a man is obliged more to love his owne flesh, then his neighbours, Ephes. 5.28. and so more to defend himselfe, then to defend his neighbour,How many wayes a man may preferre the safety of his owne life to the safety of his brother. then may he oppose violence to the robber; As two men drowning in a water, the one is not obliged by Gods Law, to expose himselfe to drowning to save his neighbour; but by the contrary, hee is obliged rather to save himselfe, though it were with the losse of his neighbours life: As in war, if souldiers in a strait passage be pursued on their life, nature teacheth them to flee; if one fall, his fellow in that exigence is not onelyonly not obliged to lift him up, but he and the rest flying, though they trample on him and kill him, they are not guilty of murther, seeing they hated him not before. Deut. 19.4.6. so Chemnit. loc. com. de vindic. q. 3. alloweth private defence. 1. When the violence is suddaine, And the 2. Violence manifestly inevitable. 3. When the Magistrate is absent and cannot help. 4. When moderation is kept as Lawyers require. 1. That it be done incontinent, if it be done after the injury, it is revenge, not defence. 2. Not of Desire of revenge. 3. With proportion of armor. If the violent invader invade not with deadly weapons, you must not invade him with deadly weapons, and certainly the law, Exod. 22. of a mans defending his house is clear. 1. If he come in the night, it is presumed he is a robber. 2. If he be taken with a weapon breaking the house, he cometh to kill, a man may defend himself, wife, and children, but he is 3. but to wound him, and if he die of the wound, the defender is free, so the defender is not to intend his death, but to save himself.
5. It were a mighty defect in providence to man, if dogs by nature may defend themselves against Wolves,… common to man wi…h beast. Bulls against Lyons, Doves, against Haukes, if man in the absence of the lawfull Magistrate, should not defend himself against unjust violence, but one man might raise armies of Papists sick for blood to destroy innocent men. They object, When the King is present in his person, and his invaders, he is not absent, and so though you may rather kill a private man, then suffer your self to be killed, yet, because prudence determineth the means of self-defence, you are to expose your life to hazard for justice of your King, and therefore not to do violence to the life of your King, nor can the body in any self-defence, fight against the head, that must be the destruction of the whole. Ans. Though the King be present as an unjust invader in Warres against his innocent subjects, he is absent as a King, and a father and defender, and present as an unjust grassator, and therefore the innocent may defend themselves, when the King neither can, nor will defend him. Nature maketh a man (saith the law. l. Gener. c. de decur. l. 10. l. si alius. …. Bellissimè ubique Gloss. in vers. ex magn. not. per. il…um. text. ff. quod vi aut clam. l. ait praetor. §. si debitorem nicum. ff. de hisque in fraud. credito.) even a privat man his own judge, magistrate and defender, quando copiam judicis, qui sibi jus reddat, non habet. When he hath no judge, to give him justice and law. 2. The subjects are to give their lives, for the King, as the King ▪ because the safety of the King as King is the safety of the common-wealth. But the King as offering unjust violence to his innocent subjects is not King. Zoannet. part. 3. defens. n. 44. transgrediens notoriè officium suum judex, agit velut privatus aliquis, non ut magistratus. ff. de injur. est bonus in simili in. l. qui fundum. §. si. tutor. ff. pro emptore. 3. If the politick body fight against this head in particular, not as head, but as an oppressor of the people. There is no fear of dissolution, if the body rise against all magistracy, as magistracy and lawes: dissolution of all must follow, Parliaments and inferiour judges are heads. Num. 1.16. Num. 10.4. Deut. 1.15. Iosh. 22.21. Mic. 3.1. ver. 9.11. 1 King. 8.1. 1 Chron. 5.25. 2 Chro. 5.2. No lesse then the King, and it is unlawfull to offer violence to them, though I shall rather thinke a private man is to suffer the King to kill him, rather then he kill the King; because he is to preferre the life of a private man, to the life of a publique man.
6. By the law of nature a ruler is appointed to defend the innocent. Now by nature an infant in the wombe d…fendeth it self first, before the parents can defend it, then when parents and magistrates are not, (and violent invading magistrates are not in that magistrates) nature hath commended every man to self-def…nce.
7. The Law of nature excepteth no violence, whether inflicted by a magistrate, or any other unjust violence from a ruler is twice injustice. 1. He doth unjustly as a man. 2. As a member of the common-wealth. 3. He committeth a speciall kind of sin of injustice, against his office, but it is absurd to say we may lawfully defend our selves from smaller injuries, by the law of nature; and not from the greater. If the Pope (saith Fer. Vasquez. illust. quest. l. 1. c. 24. n. 24, 25.) command to take away benefices from the just owner, these who are to execute his commandement, are not to obey, but to write back that that mandat came not from his holinesse, but from the avarice of his Officers; but if the Pope still continue and presse the same unjust Mandat, the same should be written againe to him: and though there be none above the Pope, yet there is naturall self-defence patent for all. Defensio vitae nece aria est, & à jure naturali profluit: L. ut vim. ff. de just. & jure 16. Nam quod quisque ob tutelam corporis sui fecerit, jure fecisse videatur. C. jus naturale. 1. distinc. l. 1. ff. de vi & vi armata. l. injuriarum. ff. de injuria. C. significasti. 2. de hom. l. scientiam. sect. qui non aliter ff. ad leg. Aquil. C. si vero 1. de sent. excom. & l. sed etsi ff. ad leg. Aquil. etiamsi sequatur homicidium. Vasquez. l. 1. c. 17. n. 5. etiam occidere licet ob defensionem rerum. Vim vi repellere omnia jura permittunt in C. signisicasti. Garcias Fortunius Comment. in l. ut vim. ff. de instit. & jur. n. 3. defendere se est juris naturae & gentium. A jure civili fuit additum moderamen inculpatae tutelae. Iac. Novel. defens. n. 101. Occidens Principem vel alium Tyrannidem exercentem, à poena homicidii excusatur. Grotius de jure belli & pacit▪ l. 2. c. 1. n. 3. Si corpus impetatur vi presente, cum periculo vitae non aliter vitabili, tunc bellum est licitum etiam cum interfectione periculum inferentis, ratio, natura quemque sibi commendat. Barcl. advers. Monar. l. 3. c. 8. est jus cuilibet se tenendi adversus immanem sevitiam.
But what ground (saith the Royalist) is there to take Arms against a King? Ielousies and suspitions are not enough.
Ans. The King sent first an Armie to Scotland, and blocked us up by sea, before we took Armes. 2. Papists were armed in England, they have professed themselves in their Religion of Trent to …e so much the holyer,Takeing … armes in the law is a sov… raigne ground o… a difensive postu…e. that they root out Protestants. 3. The King declared we had broken loyalty to him, since the last Parliament. 4. He d…clared both Kingdoms Rebels. 5. Attempted in his Emissaries to destroy the Parliament. 6. And to bring in a forraigne enemie. And the Law saith, An imminent danger, which is a sufficient warrant to take up Armes, is not strokes, but either the terrour of Armour, or threatning. Glossator. in d. l. 1. C. Vnde vi. ait non esse verbera expectanda, sed vel terrorem armorum sufficere, vel minas, & hoc esse imminens periculum. L. Sed & si quemcunque in princ. ff. ad leg. Aquil. l. 3. quod qui armati ff. de vi & vi armata is qui aggressorem. C. ad legem C. ad legem Corneli.
In most hainous sinnes, conatus, the endeavour and aime (etiamsi effectus non sequatur, puniri debet) is punishable. Bartoln. in l. Si quis non dicam rapere.
The King hath aimed at the destruction of his Subjects, through the power of wicked counsellors, and we are to consider not the intenton of the workes, but the nature and intention of the work; Papists are in armes, their religion, the Conspiracy of Trent, their conscience (if they have any) their malice against the covenant of Scotland which abjureth their Religion to the full, their ceremonies, their Prelates lead, and necessitate them to root out the name of Protestant, Religion, yea and to stab a King who is a Protestant. Nor is our King remaining a Protestant, and adhering to his oath made at his Coronation in both kingdomes, Lord of his own person, master of himself, nor able as King to be a King over Protestant subjects, if the Papists now in armes under his standard, shall prevail.
The King hath been comp…lled to go against his own oath and the Lawes which he did swear to maintaine: The Pope sendeth to his popish armies both dispensations, bulls, mandats, incouragements: The King hath made a cessation with the bloody Irish, and hath put arms in the hands of Papists. Now he being under the oath of God, tied to maintain the Protestant Religion, he hath a metaphysically subtle, pearcing faith of miracles, who beleeveth armed Papists, and Prelates shall defend Protestants, their Religion, and these who have abjured Prelats as the lawful sons of the Pope, that foreign, and as the law saith, Quilibet in dubio praesumitur bonus. L. merito praesumi. L. non omnes § à Barbaris de re milit. Charity beleeveth not ill: So Charity is not a foole to beleeve all things. So saith the Law, Semel malus, semper praesumitur malus, in eodem genere. C. semel malus de jure gentium in 6. Once wicked is alwayes wicked in that kind. Marius Salamonius I. C. in L. ut vim atque injuriam ff. de just. & jure. We are not to wait on strokes, the terrour of armour, omnium consensu, by consent of all is sufficient. n. 3. If I see (saith he) the enemy take an arrow out of the Quiver, before he bend the bow, it is lawfull to prevent him with a blow—cunctatio est periculosa. The Kings comming with armed men, to demand the Five Members, into the House of Commons, is very symbolicall, and Warre was printed on that fact, he that runneth may reade. His comming to Hull with an Armie, saith not he had no errand there, but aske what it was in the clock. See Novellus that learned Venetian Lawyer, in a Treatise for defence, he maketh continuatam rixam, a continued upbraiding a sufficient ground of violent defence. He citeth Doctores Comniter. in L. ut vim. ff. de just. & jure. Yea he saith, Drunkennesse, defens. n. 44. Error, n. 46. Madnesse, n. 49, 50. Ignorance, n. 51, 52. Impudence, n. 54. Necessity, n. 56. Lasciviousnesse, 58. Continuall reproaches, 59. The fervour of anger, 64. Threatning, 66. Feare of imminent danger, 67. Iust grief doe excuse a man from homicide, and that in these he ought to be more mildly punished, Quia obnubilatum & mancum est consilium, Reason in these being lame and clogged. Ambros. l. 1. offic. Qui non repellit injuriam à socio, cum potest, tam est in vitio, quam ille quifacit. And as Nature, so the Law saith, When the losses are such as can never be repaired, as Death, Mutilation, l…sse of Chastity, Quoniam facta infecta fieri nequeunt, things of that kinde once done, can never be undone, we are to prevent the enemy, l. Zonat. tract. defens. par. 3. l. in bello §. factae de capit. notat. Gloss. in l. si quis provocatione. If the King send an Irish Rebell to cast me over a bridge, and drowne me in a water, I am not to do nothing, while the Kings emissary first cast me over, and then in the next room I am to defend my self; but nature and the law of self-defence warranteth me (if I know certainly his ayme) to horse him first over the bridge, and then consult how to defend my s…lfe at my own leasure.
Royalists object that David in his defence never invaded and persecuted Saul; yea, when he came upon Saul and his men sleeping, hee would not kill any; but the Scottish and Parliaments Forces not onelyonly defend, but invade, offend, kill and plunder; and this is cleerely an offensive, not a defensive warre.
Off…nsive and defe…sive wars differ in the event and intentions of men, but not physically.Answ. There is no defensive warre different in spece and nature from an offensive warre, if we speake physically, they differ onelyonly in the event and intention of the heart, and it is most cleare that the affection and intention doth make one and the same action of taking away the life, either homicide, or no homicide: If a man out of hatred deliberat…ly take away his brothers life, he is a murtherer catenus, but if that same man had taken away that same brothers life, by th… …lying off o… an Axe he…d of… the staffe, while he was hewing timber, he neither hating him before, nor intending to hurt his brother, he is no murtherer, by Gods expresse Law, Deut. 4.42. Deut. 19 4. Ioshua 20.5. 2. The cause betweene the King and the two Parliaments, and betweene Saul and David, are so different in this, as it is much for us: Royalists say, David might if he had seene offending to conduce for s…lfe-preservation, have invaded Sauls men, and say they, the case was extraordinary, and bindeth not us to selfe-defence; and thus they must say; for offensive weapons, such as Goliahs sword, and an hoast of armed men, cannot by any rationall men be assumed (and David had the wisdome of God) but to offend, if providence should so dispose; and so what was lawfull to David, is lawfull to us in self-defence, he might offend lawfully, and so may we.
2. If Saul and the Philistims ayming (as under an oath) to set up Dagon in the land of Israel, should invade David, and the Princes and Elders of Israel who made him King; and if David with an hoast of armed men, he and the Princes of Israel, should come in that case upon Saul and the Philistims sleeping, if in that case David might not lawfully have cut oft the Philistims, and as he defended in that case Gods Church, and true Religion, if he might not then have lawfully killed (I say) the Philistims, I remit to the conscience of the Reader. Now to us Papists and Prelates under the K…n…s banner, are Philistims, introducing the Idolatry of Bread-worship and Popery, as hatefull to God, as Dagon-worship.
3. Saul intended no arbitrary government, nor to make Israel a conquered people, nor yet to cut off all that professed the true worship of God; nor came Saul against these Princes, Elders and people who made him King, only Davids head would have made Saul lay downe Arms; but Prelates, and Papists, and Malignants under the King, int…nd to make the Kings sole will a Law, to destroy the Court of Parliament, which putteth Lawes in execution against their Idolatry; and their ayme is that Protestants be a conquered people, and their attempt hath been hitherto to blow up King and Parliament, to cut off all Protestants, and they are in Armes in divers parts of the Kingdome, against the Princes of the Land, who are no lesse Judges and deputies of the Lord, then the King himselfe; and would kill, and do kill, plunder and spoyle us, if we kill not them. And the case is every way now betweene Armies and Armies, as betweene a single man unjustly invaded for his life, and an unjust invader: neither in a naturall action, such as is self-defence, is that of policy to be urged; none can be Judge in his owne cause, when oppression is manifest;A whore may not sell her own body for hire. Covar. 10.1. par. 2. §. 1. de …urti & rapi restituti §. 2. n. 1. one may be both agent and patient, as the fire and water conflicting; there is no need of a judge, a community casts not off nature; when the judge is wanting, nature is judge, actor, accused and all.
Lastly, no man is Lord of his owne members, of his body, m. l. liber homo ff. ad leg. Aqui. nor Lord of his owne life, but is to be accountable to God for it.