Treatise of Civil Policy, Treatise · Question 28
QUEST. XXVIII. Whether or no, Wars raiſed by the Subjects and Eſtates, for their own juſt defence againſt the Kings bloody Emiſſaries, be lawfull?
ARniſaeus perverteth the queſtion; he ſaith, The queſtion is,Arniſaeus de authori. Princ. c. 1. n. 2. The ſtate of the queſtion concerning reſiſtance. Whether or no, the Subjects may according to their power, judge the King, and dethrone him; that is, Whether or no, is it lawfull for the Subjects in any caſe, to take arms againſt their lawfull Prince, if he degenerate, and ſhall wickedly uſe his lawfull power?
The ſtate of the queſtion is much perverted, for theſe be different queſtions, Whether the Kingdom may dethrone a wicked and Tyrannous Prince? And whether may the Kingdom take up arms againſt the man who is the King, in their own innocent defence: For the former is an Act offenſive, and of puniſhing, the latter is an Act of Defence.
2. The preſent queſtion is not of Subjects onelyonly, but of the Eſtates, and Parliamentary Lords of a Kingdom; I utterly deny theſe as they are Iudges, to be ſubjects to the King; for the queſtion is, Whether is the King, or the repreſentative Kingdom greateſt, and which of them be ſubject one to another: I affirm, Amongſt Iudges as Iudges, not one is the Commander or Superiour, and the other, the commanded or ſubject. Indeed, one higher Iudge may correct and puniſh a Iudge, not as a Iudge, but as an erring man.
3. The queſtion is not ſo much concerning the authoritative Act of War, as concerning the power of naturall Defence, upon ſuppoſition, That the King be not now turned an habituall Tyrant, but that upon ſome acts of miſ-information, he come in arms againſt his Subjects.
2. Arniſaeus maketh two ſort of Kings, Some Kings integrae Arniſae. 16. n. 4.Majeſtatis, of intire power and Soveraignty; ſome Kings by pactions or voluntary agreement, between King and people. But I judge this a vain diſtinction: For the limited Prince, ſo he be limited to a power onelyonly of doing juſt and right; by this is not a Prince integrae Majeſtatis of entire Royall Majeſtie, whereby he may do both good, and alſo play the Tyrant; but a power to do ill, being no wayes eſſentiall, yea, repugnant to the abſolute Majeſtie of the King of Kings, cannot be an eſſentiall part of the Majeſtie of a lawfull King; and therefore the Prince limited by voluntary and poſitive paction onelyonly, to rule according to law and equity, is the good, lawfull, and entire Prince, if he have not power to do every thing juſt and good in that regard, onelyonly he is not an intire and compleat Prince. So the man will have it lawfull to reſiſt the limited Prince, not the abſolute Prince; by the contrary, it is more lawfull to me to reſiſt the abſolute Prince, then the limited, in as much, as we may with ſafer conſciences reſiſt the Tyrant, and the Lyon, then the juſt Prince and the Lamb. Nor can I aſſent to Cunnerus de officio princip. Chriſtia. c. 5. & 17. Who holdeth, that theſe voluntary pactions betwixt King and people, in which the power of the Prince is diminiſhed, cannot ſtand, becauſe their power is given to them by Gods Word, which cannot be taken from them, by any voluntary paction, lawfully; and from the ſame ground, Winzetus in velit. contr. Buchan. p. 32. will have it unlawfull to reſiſt Kings, becauſe God hath made them unreſiſtable. I anſwer, If God by a divine inſtitutionIf Kings be abſolute by divine Inſtitution, then all Covenants reſtraining them, muſt be unlawfull ſpoiling of Kings, of that which God hath given them. make Kings abſolute, and above all Laws (which is a blaſphemous ſuppoſition, the holy Lord can give to no man a power to ſin, for God hath not himſelf any ſuch power) then the Covenant betwixt the King and people, cannot lawfully remove and take away what God by inſtitution has given; but becauſe God, Deut. 17. hath limited the firſt lawfull King, the mould of all the reſt, the people ought alſo to limit him by a voluntary Covenant; and becauſe the lawfull power of a King to do good, is not by divine Inſtitution placed in an indiviſible point. It is not a ſin for the people to take ſome power, even of doing good from the King, that he ſolely, and by himſelf, ſhall not have power to pardon an involuntary homicide, without advice, and the judiciall ſuffrages of the Councell of the Kingdom, leaſt he, inſteed of this, give pardons to Robbers, to abominable Murtherers, and in ſo doing, the people robbeth not the King of the power that God gave him as King, nor ought the King to contend for a ſole power in himſelf, of miniſtring juſtice to all; for God layeth not upon Kings, burdens unpoſſible, and God by Inſtitution, hath denied to the King, all power of doing all good, becauſe it is his Will that other Iudges be ſharers with the King in that power, Num. 14. 16 Deut. 1. 14. 15, 16, 17. 1 Pet. 2. 14. Rom. 13. 1, 2, 3, 4. And therefore the Duke of Venice to me cometh neereſt to the King, moulded by God, Deut. 17. in reſpect of power, de jure, of any King I know in Europe. And in point of conſcience, the inferiour Iudge diſcerning a murtherer, and bloody man to die, may in foro conſcientiae, deſpiſe the Kings unjuſt pardon, and reſiſt the Kings force by his ſword and coactive power that God hath given him, and put to death the bloody murtherer, and he ſinneth, if he do not this; for to me it is clear, The King cannot judge ſo juſtly and underſtandingly of a murtherer in Scotland, as a Iudge, to whom God hath committed the ſword in Scotland: Nor hath the Lord laid that unpoſſible burden on a King to judge ſo of a murther four hundreth miles, removed from the King, as the Iudge nearer to him, as is clear by Num. 14 16. 1 Sam. 7. 15, 16, 17. The King ſhould go from place to place, and judge; and whereas it is unpoſſible to him, to go thorow three Kingdoms, he ſhould appoint faithfull Iudges, who may not be reſiſted, no not by the King.
2. The queſtion is, If the King command A. B. to kill his father, his paſtour; the man neither being cited nor convicted of any fault, may lawfully be reſiſted.
3. Queritur, If in that caſe in which the King is captived, impriſoned, and not ſui juris, and awed or over-awed by bloody Papiſts, and ſo is forced to command a barbarous and unjuſt War; and if being diſtracted Phyſically or Morally through wicked Counſell, he command that which no father in his ſober wits would command, even againſt Law and Conſcience, That the ſons ſhould yeild obedience and ſubjection to him, in maintaining with lives and goods, a bloody Religion, and bloody Papiſts: If in that caſe, the King may not be reſiſted in his perſon, becauſe the power lawfull and the ſinfull perſon cannot be ſeparated? We hold the King uſing, contrary to the oath of God, and his Royall Office, violence in killing againſt Law and Conſcience his Subjects, by bloody Emiſſaries, may be reſiſted by defenſive Wars, at the commandment of the Eſtates of the Kingdom.
But before I produce Arguments, to prove the lawfulneſſe of reſiſtance,Reſiſtance in ſome caſes lawfull, according to D. Fern. a little of the caſe of reſiſtance. 1. Doct. Ferne, part. 3. ſect. 5. pag. 39. granteth reſiſtance by force to the King to be lawfull. 1. When the aſſault is ſudden. 2. Without colour of a Law, and Reaſon. 3. Inevitable. But if Nero burn Rome, he hath a colour of Law and Reaſon; yea, if all Rome, and his mother, in whoſe Womb he lay, were one neck. A man who will with reaſon go mad, hath colour of Reaſon, and ſo of Law, to invade and kill the innocent.
2. Arniſaeus ſaith, If the Magiſtrate proceed extra-judicialiter, De author. Princ. c. 2. n. 10.without order of Law by violence, the Laws giveth every private man power to reſiſt, if the danger be irrecoverable; yea, though it be recoverable. L. prohibitum, C. de jur. fiſc. l. quemadmodum. 39. §.Royaliſts hold it lawfull to reſiſt an inferiour Iudge. Magiſtratus ad l. Aquil. l. nec Magiſtratibus, 32. de injur. Becauſe while the Magiſtrate doth againſt his office, he is not a Magiſtrate, for Law and right, not injury, ſhould come from the Magiſtrate. L. meminerint. 6. C. unde vi. Yea, if the Magiſtrate proceed judicially, and the loſſe be irrecoverable. Juriſts ſay, That a private man hath the ſame Law to reſiſt, Marantius▪ diſ. 1. n. 35. And in a recoverable loſſe, they ſay, every man is holden to reſiſt, ſi evidenter conſtet de iniquitate; If the iniquity be known to all, D. D. Iaſon. n. 19. dec. n. 26. ad l. ut vim de juſt. & jur.
3. I would think it not fit, eaſily to reſiſt the Kings unjuſt ExactorsThe Exactors of unjuſt tribute, not eaſily to be reſiſted. of cuſtome or tribute; 1. Becauſe Chriſt payed tribute to Tiberius Caeſar, an unjuſt uſurper, though he was free from that, by Gods Law, leaſt he ſhould offend. 2. Becauſe we have a greater dominion over Goods, then over our Lives and Bodies; and it is better to yield in a matter of Goods, then to come to Arms; for of ſinleſſe evils, we may chooſe the leaſt.
4. A Tyrant without a Title may be reſiſted by any private man. Quia licet vim vi repellere; Becauſe we may repell violence by violence, yea, he may be killed. Ʋ … l. & vim. F. de iuſtit. & jure, ubi plene per omnes. Vaſquez, l. 1. c. S. n. 33. Barcla. contra. Monaroho. l. 4. c. 10. pag. 268.
For the lawfulneſſe of reſiſtance in the matter of the Kings unjuſtArguments for the lawfulneſſe of reſiſting unjuſt violence. invaſion of life and Religion, we offer theſe Arguments.
1. That power which is obliged to command and rule juſtly and religiouſly, for the good of the ſubjects, and is only ſet over theArgum. 1. people on theſe conditions, and not abſolutely, cannot tye the people to ſubjection without reſiſtance, when the power is abuſed to the deſtruction of Lawes, Religion, and the ſubjects. But all power of the Law is thus obliged, Rom. 13. 4. Deut. 17. verſ. 18, 19, 20. 2 Chron. 19. 6. Pſ. 132. 11, 12. Pſ. 89. 30, 31. 2 Sam. 7. 12. Ier. 17. 24, 25. and hath, and may be abuſed by Kings, to the deſtruction of Lawes, Religion, and Subjects.
The Propoſition is cleare, for the powers that tye us to ſubjection, only are of God. 2. Becauſe to reſiſt them, is to reſiſt the ordinance of God. 3. Becauſe they are not a terrour to good workes, but to evill. 4. Becauſe they are Gods Miniſters for our good, but abuſed powers are not of God, but of men, or not ordinances of God: they are a terrour to good workes, not to evill; they are not Gods Miniſters for our good.
2. That power which is contrary to Law, and is evill and Tyrannicall,Argum. 2. can tye none to ſubjection, but is a meere Tyrannicall power and unlawfull; and if it tye not to ſubjection, it may lawfully be reſiſted. But the power of the King abuſed to the deſtruction of Lawes, Religion, and ſubjects, is a power contrary to Law, evill and Tyrannicall, and tyeth no man to ſubjection; wickedneſſe by no imaginable reaſon can oblige any man. Obligation to ſuffer of wicked men, falleth under no Commandement of God, except in our Saviour. A Paſſion, as ſuch, is not formally commanded, I meane a Phyſicall Paſſion, ſuch as to be killed. God hath not ſaid to me in any Morall Law, Be thou killed tortured, beheaded; but only, be thou patient, if God deliver thee to wicked mens hands, to ſuffer theſe things.
3. There is not a ſtricter Obligation Morall betwixt King andArgum. 3. people, then betwixt Parents and Children, Maſter and ſervant, Patron and Clients, Husband and Wife, the Lord and the Vaſſell; between the Pilot of a Ship and the Paſſengers, the Phyſitian and the ſick, the Doctor and the ſchollars: but the Law granteth l. Minime 35. De Relig. & ſumpt. funer. If theſe betray their truſt committed to them, they may be reſiſted; if the father turne diſtracted, and ariſe to kill his ſonnes, his ſonnes may violently apprehend him, and bind his hands, and ſpoile him of his Weapons: for in that he is not a father, Vaſquez, Lib. 1. Illuſtr. queſtion. c. 8. n. 18. Si dominus ſubditum enormiter & atrociter oneraret, princeps ſuperior vaſſallum poſſet ex t…o e…imere a ſua juriſdictione, & etiam tacente ſubdito & nihil petente. Quid papa in ſuis deciſ. Parliam. grat. deciſ. 62. ſi quis Baro. abutentes dominio privari poſſunt. The ſervant may reſiſt the Maſter, if he attempt unjuſtly to kill him; ſo may the Wife doe to the Husband: if the Pilot ſhould wilfully run the ſhip on a Rock to deſtroy himſelfe and his Paſſengers, they might violently thruſt him from the Helme. Every Tyrant is a furious man, and is morally diſtracted, as Althuſius ſaith, Politi. c. 28. n. 30. & ſeq.
4. That which is given as a bleſſing and a favour, and a Scrine betweeneArgum. 4. the peoples liberty and their bondage, cannot be given of God, as a bondage, and ſlavery to the people. But the power of a King is given as a bleſſing, and favour of God to defend the poore and needy, to preſerve both Tables of the Law, and to keepe the people in their liberties from oppreſſing and treading one upon another. But ſo it is, that if ſuch a power be given of God to a King, by which, Actu primo, he is inveſted of God, to doe acts of Tyranny, and ſo to doe them, that to reſiſt him in th… moſt innocent way, which is ſelfe defence, muſt be a reſiſting of God, and Rebellion againſt the King, his Deputy, then hath God given a Royall power as incontrollable by mortall men, by any violence, as if God himſelfe were immediatly and perſonally reſiſted, when the King is reſiſted, and ſo this power ſhall be a power to waſt and deſtroy irreſiſtably, and ſo in it ſelfe a plague and a curſe; for it cannot be ordained both according to the intention and genuine formall effect, and intrinſecall operation of the power to preſerve the Tables of the Law, Religion and Liberty, Subjects and Lawes, and alſo to deſtroy the ſame; but it is taught by Royaliſts that this power is for Tyranny, as well as for peaceable Government, becauſe to reſiſt this Royall Power put forth in Acts either waies, either in acts of Tyranny, or juſt Government, is to reſiſt the Ordinance of God, as Royaliſts ſay, from Rom. 13. 1, 2, 3. And we know to reſiſt Gods ordinances and Gods Deputy, formaliter, as his Deputy, is to reſiſt God himſelfe, 1 Sam. 8. 7. Mat. 10. 40. as if God were doing perſonally theſe Acts, that the King is doing, and it importeth as much as the King of Kings doth theſe Acts in, and through the Tyrant. Now it is blaſphemy to thinke or ſay, that when a King is drinking the blood of innocents, and waſting the Church of God, that God, if he were perſonally preſent, would commit theſe ſame acts of Tyranny, (God would avert ſuch blaſphemy) and that God in, and through the King, as his lawfull Deputy, and Vicegerent in theſe acts of Tyranny, is waſting the poore Church of God. If it be ſaid in theſe ſinfull acts of Tyranny, he is not Gods formall Vicegerent, but only in good and lawfull acts of Government, yet he is not to be reſiſted in theſe acts, not becauſe the acts are just and good, but becauſe of the dignity of his Royall Perſon. Yet this muſt prove that theſe who reſiſt the King in theſe acts of Tyranny, muſt reſiſt no ordinance of God, but only that we reſiſt him, who is the Lords Deputy, though not as the Lords Deputy; what abſurd is there in that more then to diſobey him, refuſing active obedience to him who is the Lords Deputy, but not as the Lords Deputy, but as a man commanding, beſide his Maſters Warrant?
5. That which is inconſiſtent with the care and providence ofArg. 5. God in giving a King to his Church, is not to be taught. Now Gods end in giving a King to his Church, is the feeding, ſafetie, preſervation, the peaceable and quiet life of his Church, 1 Tim. 2. 2. Eſa. 49. 23. Pſal. 79. 71. But God ſhould croſſe his own end in the ſame act of giving a King, if he ſhould provide a King, who, by office, were to ſuppreſſe Robbers, Murtherers, and all oppreſſors and waſters in his holy Mount: and yet ſhould give an irreſiſtible power to one crowned Lyon, a King, who may kill a thouſand thouſand Proteſtants for their Religion, in an ordinary Providence, and they are by an ordinary law of God to give their throats to his Emiſſaries and bloody executioners. If any ſay, The King will not be ſo cruell: I beleeve it; becauſe, actu ſecundo, it is not poſſibly in his power to be ſo cruell.
2. We owe thanks to his good will, that he killeth not ſo many▪ but no thanks to the nature and genuine intrinſecall end of a King, who hath power from God to kill all theſe, and that without reſiſtance made by any mortall man. Yea, no thanks (God avert blaſphemie) to Gods ordinary providence, which (if Royaliſts may be beleeved) putteth no barre upon the illimited power of a man inclined to ſinne, and abuſe his power to ſo much crueltie. Some may ſay, the ſame abſurditie doth follow, if the King ſhould turne Papiſt, and the Parliament all were Papiſts; in that caſe there might be ſo many Martyrs for the truth put to death: and God ſhould put no bar of providence upon this power, then, more then now: and yet in that caſe, the King and Parliament, ſhould be Iudges given of God, actu primo, and by vertue of their office obliged to preſerve the people in Peace and Godlineſſe. But I anſwer: If God gave a lawfull officiall power to King and Parliament to worke the ſame crueltie upon millions of Martyrs, and it ſhould be unlawfull for them by armes to defend themſelves; I ſhould then think that King and Parliament were both ex officio, by vertue of their office, and actu primo, Iudges and Fathers, and alſo by that ſame office, Murtherers and Butchers. Which were a grievous aſperſion to the unſpotted Providence of God.
6. If the Eſtates of a Kingdome give the power to a King, it isArg. 6. their own power in the fountaine; and if they give it for their own good, they have power to judge when it it uſed againſt themſelves, and for their evill; and ſo power to limit and reſiſt the power that they gave. Now that they may take away this power, is cleare in Athaliahs caſe. It is true, ſhe was a Tyrant without a Title, and had not the right of Heaven to the Crown; yet ſhe had, in Mens Court, a title. For ſuppoſing all the ſeed Royall to be killed, and the peoples Conſent; we cannot ſay, That for theſe ſixe yeares, or thereabout, ſhe was no Magiſtrate. 2. That there were none on the Throne of David at this time. 3. That ſhe was not to be obeyed as Gods Deputie. But grant that ſhe was no Magiſtrate: yet when Iehoaſh is brought forth to be crowned, it was a controverſie to the States, to whom the Crown ſhould belong. 1. Athaliah was in poſſeſſion. 2. Iehoaſh himſelfe being but ſeven yeares old, could not be Iudge. 3. It might be doubted, if Ioaſh was the true ſonne of Ahaziah, and if he was not killed with the reſt of the blood Royall.
Two great Adverſaries ſay with us: Hugo Grotius, de jur▪ belli & pacis, l. 1. c. 4. n. 7. He ſaith, He dare not condemne this, if the leſſer part of the People, and every one of them indifferently, ſhould defend themſelves againſt a Tyrant, ultimo neceſſitatis praeſidio. The caſe of Scotland, when we were blocked up by Sea and Land, with Armes: The caſe of England, when the King, induced by Prelates, firſt attempted to bring an Army to cut off the Parliament, and then gathered an Army, and fortified Yorke, and invaded Hull, to make the Militia his own, ſure is conſiderable. Barclay ſaith, The People hath jus ſe tuendi adverſus immanem ſaevitiem. Adverſ. Monarchomach. l. 3. c. 8. A power to defend themſelves againſt prodigious crueltie. The caſe of England and Ireland, now invaded by the bloody Rebels of Ireland, is alſo worthy of conſideration. I could cite hoaſts more.