Treatise of Civil Policy, Treatise · 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 ſelfeSelf-defence naturall. by its hornes, 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 na…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 ſelfe 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 themſelves, but by flight. 1. The antecedent is falſe. Dr. Ferne allowethD. Ferne alloweth the reſiſtance of denying of Tribute to a tyranous Prince. 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 mayApologies, Supplications▪ Flight, taking of Armes lawfull in ſelfdefence. ſave. David uſed all the three in order; 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;Violent re-offending in ſelfdefence the laſt remedy. and ſo he is compelled and neceſſitated to take away the life: 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 faith,Simmons Loy…ll Subjects beleeſ. 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 IRe-offending comparatively that I kill ere I be killed, in the court of neceſſity law…ull 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-murder, in the culpable omiſſion of ſelf-defence. Now a private man may flie, and that is his ſecond neceſſity, and violent 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, …light, is not poſſible, and cannot attaine the end, as in the caſe of David: if …light 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, …light 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 ſoundThe …leeing of a Church or nation not a mean of ſelfdefence alway poſſible, and ſo not required of God. Religion in the poſteritie cannot flee, …light 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 Proteſtant…, 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 maſſebook; 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. Let not any o…ject, 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 whol… Proteſtants in the three kingdomes according to Royaliſts Doctrine, are to leave their 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 meer and immediatA ſelf defence remote, and a ſelf-defence n…ere▪hand▪ 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, wh…n 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. 96. except in caſe of neceſſity; The magiſtrate in caſe of neceſſity may kill the malefector, thought his malefices doWhen David had Saul in his hand, he was in a caſe of actuall ſelf-defence, Saul being in a habituall unjuſt purſuit▪ not put him in that caſe, that he hath not now the image of God; 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 …ſe 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 neceſſary 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 threatten 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 emiſſaries, for he hath armies in two kingdomes, and now in three kingdomes, by ſea and land, night and day in actuall purſuit,The Proteſtants of the three kingdoms, not in the caſe that David was in, when he came armed upon King Saul ſleeping. not of one David, but of the eſtates, and a Chriſtian community in England and Scotland, and that for Religious, Lawes and Liberties, for the queſtion is now betweene Papiſt and Proteſtant, between Arbitrary 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-offending for ſelf-preſervation, and put to this neceſſity when armies are in actuall purſuit of all the Proteſtant Churches of the three Kingdoms, to actuall killing, rather then we be killed, and ſuffer Lawes, and Religion to be undone. But ſaith the Royaliſt, Davids argument, God forbid that I ſtretch out my hand againſt the Lords Annoynted, 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 hand againſt the perſon of King Saul: no man in the three Kingdomes, did ſo much as attempt to do violence to the Kings So D. Ferne.perſon. But this argument 2. is inconſequent, for a King invading in his own Royall perſon, the innocent ſubject, 1. Suddainly. 2. Without colour of Law and reaſon. 3. Unavoidably, may be perſonally reſiſted, 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 remaineth 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, forThe law of univerſall and particular nature warranteth ſelf-defence. 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 farre more i… 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 hurtingof 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 Comon-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 CommonwealthThis or that King not the adequat head of the community▪ is not diſſolved, 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, cannot be referred to the immortall Common-wealth, as it is adequat correlate. They ſay, the King …ever 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 conſiderable, 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, as the wiſhes of Moſes and Paul doFxod. 32. Rom. 9. 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, then to be killed, the exigence of neceſſity ſo requiring; NatureThe love of our ſelfe the rule and meaſure of our love to our neighbour. We are to love our brethrens ſalvation aobve our l…fe, not their life a…ove our owne. 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 him ſelfe; 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, 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 cruciſie the innocent Lord of glory: by no morall Law of God, ſhould the … 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 toHow many wayes a man may preferre the ſafety of his owne life to the ſafety of his brother. defend himſelfe, then to defend his neighbour, 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, Bulls againſt Lyons,Self defence common to man with beaſts. 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. ſialius. §. Belliſſimè ubique Gloſſ. in verſ. ex magn. not. per. illum. text. ff. quod vi aut clam. l. ait praetor. §. ſi debitorem meum. ff. de hiſque in fraud. credito.) even a privat man his own judge, magiſtrate and defender, quando copiam judicis, qui ſibijus 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, ad 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 jadges 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 leſle 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-defence.
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 d… fend 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. ſignificaſti. 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. lac. Novel. defenſ. n. 101. Occidens Principem vel alium Tyrannidem exercentem, à paena homicidii excuſatur. Grotius de jure belli & pacis, l. 2. c. 1. n. 3. Si corpus impetatur vi preſente, cum periculo vitae non aliter vitabili, tune bellum eſt licitum etiam cum interſectione periculum inf…rentis, ratio, natura quemque ſibicommendat. 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 be ſo much the holyer, that they root out Prottſtants. 3. The KingTakeing of armes in the law is a ſoveraigne ground of a d…fenſive poſtu…e. 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. Vinde vi. ait non eſſe verbera expectanda, ſed vel terrorem armorum ſufficere, vel minas, & hoc eſſe immin…ns 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. adlegem C. adlegem Corneli.
In moſt hainous ſinnes, conatus, the endeavour and aime (etiamſi effectus non ſequatur, puniridebet) 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 convenant 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 compelled 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 at que 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. Quinon repellit injuriam à ſocio, cum poteſt, tam eſt in vitio, quam ille qui facit. And as Nature, ſo the Law ſaith, When the loſſes are ſuch as can never be repaired, as Death, Mutilation, leſſe 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 ſelfe 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.
Anſw. There is no defenſive warre different in ſpece and natureOffenſive and defenſive wars differ in the event and intentions of men, but not phyſically. 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 deliberately take away his brothers life, he is a murtherer eatenus, but if that ſame man had taken away that ſame brothers life, by the flying off of an Axe head off 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 ſelfe-preſervation, have invaded Sauls men, and ſay they, the caſe was extraordinary, and bindeth not us to ſelfedefence; 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 off 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 Kings banner, are Philiſtims, introducing the Idolatry of Breadworſhip 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, intend 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; one may be both agentA where may not ſell her own body for hire. Covar▪ to. 1. par. 2. …. 1. de furti & rapi reſtituti §. 2. n. 1. 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.