[52] CHAPTER IV.

Of Wars of Subjects against Superiors.

I. 1  WAR may be carried on by private persons against private persons, as by a traveller against a robber; and by sovereigns against sovereigns, as by David against the king of the Ammonites; and by private persons against those who are sovereigns of others, but not of them, as by Abraham against the king of Babylon and his neighbours; and by sovereigns against private persons, either their own subjects, as by David against the party of Ishbosheth, or not their own subjects, as by the Romans against the pirates.

2 But we have now to inquire only whether it be lawful either for private or for public persons to carry on war against those who have over them an authority either sovereign or subordinate.

And in the first place, it is not controverted that those who are armed with the authority of the supreme power may take arms against inferior authorities; as was the case when Nehemiah was armed with the edict of Artaxerxes against the chiefs of the neighbouring country. So the Roman emperors concede to the owner of the soil the liberty to expel those who would lay down the lines of a camp there.

But we inquire what is lawful against the supreme power, or inferior powers acting under the authority of the supreme power.

3 Is is beyond controversy among all good men, that if the per­sons in authority command any thing contrary to Natural Law or the Divine Precepts, it is not to be done. For the Apostles, in saying that we must obey God rather than man, appealed to an undoubted rule, written in the minds of all, which you may find, almost in the same words, in Plato. But if we receive any injury from such a cause, 53or in any other way from the will of the Supreme Power, we are to bear it rather than resist by force.

II. 1 By Natural Law, all have the Right of repelling wrong. But civil society being instituted to secure public tranquillity, the State acquires a Superior Right over us and ours, as far as is necessary for that end. Therefore the State may prohibit that promiscuous Right of resisting, for the sake of public peace and order: and it is to be presumed to have intended this, since it cannot otherwise attain its end. If this prohibition does not exist, there is no State, but a multitude without the tie of society. So the Cyclops are described by Homer and Euripides; so the [hypothetical] Aborigines, and the Getuli, by Sallust. [See the references.]

2 Such a prohibition of force, then, is the usage of all society. It is the general pact of human society, says Augustine, to obey kings. So Æschylus, Sophocles, Euripides, Tacitus, Seneca, who took it from Sophocles, and Sallust. [See the passages. The line Indigna digna habenda sunt, rex quæ facit, is a parody of a line in Plautus, rex being put for herus. Captiv. ii. 1. 6. J. B.]

3 Hence the majesty, that is, the dignity of the Sovereign, whether he be king or people, is defended by so many laws, so many penalties. The soldier, who, when the centurion has to scourge him, resists and seizes the vine-stalk (the instrument of punishment), is cashiered; if he breaks it on purpose, or lays a hand on the centurion, his offence is capital. And Aristotle says, If a magistrate strikes any one, the blow is not to be returned.

III. So in the Hebrew law, he was condemned to death who was disobedient either to the high priest, or to a Ruler of the people, appointed by God in an extraordinary manner. The passage 1 Sam. viii. 11, [This will be the manner of the king over you: He will take your sons, &c.] if carefully examined, appears not to imply a true Right, (for a very different course of conduct is prescribed in the law when the duty of the king is spoken of;) nor a mere Fact; (for the fact of a king doing this would not be peculiar, since some private persons also do injuries to others;) but a Fact which has a peculiar effect, that this being done by the king, there is an obligation of not resisting. And therefore it is added that the people so oppressed shall cry out to God for help, namely, because no help of man is to be had. So that this exercise of power is called the king’s Right, as the judge is said to do Right to the parties, even when he judges wrong.

IV. 1 In the New Testament, Christ, when he commands us to give to Cesar the things that are Cesar’s, gives it to be understood that his disciples must pay as much obedience to the powers that be as was due from the Hebrews to the Hebrew kings; if not more; and this, joined (if need be) with endurance of evil. Paul interprets this excellently, Rom. xiii. 2 et seqq. In the subjection which he recommends, he includes the obligation of not resisting; and not only the obligation to this which arises from fear, but that which flows from 54a sense of duty, and is an obligation, not towards man only, but towards God. He adds two reasons; first, that God has approved the order of command and obedience, both formerly in the Hebrew Law and now in the Gospel; wherefore the public powers are to be regarded by us as if they were ordained of God; for a person makes that his act to which he imparts his authority. The other reason is, that this order promotes our good.

2 But some will say it is not for our good to suffer injuries. Here some reply, with more truth than pertinence to the apostle’s meaning, that these injuries also are for our good, because our endurance of them will not lose its reward. To me it appears that the Apostle considered the general end which is proposed in such order, namely, the public tranquillity, in which that of individuals is comprehended. And it cannot be doubted that, for the most part, we gain this good by the public powers; for they further the happiness of the subjects for the sake of their own happiness. Hence the wish, May there be those whom you may rule [as Furfidius says to Sulla, Florus 3, 21]. It is a Hebrew proverb that If there were no public power, one man would swallow another alive: of which also Chrysostom gives the sense.

3 If the Rulers at any time are misled by excessive fear or anger, or other passions, so as to deviate from the road that loads to tranquillity, this is to be held as the less usual case, and compensated by the alternation of better times. And Laws are content to respect what commonly happens; as Theophrastus and Cato remark. [See.] Exceptional cases must submit to the general rule; for though the reason of the rule does not specially hold in that special case, yet the general reason of the rule remains; and to this special facts must be subjected. This is better than living without a rule, or leaving the rule to every one’s will. So Seneca. [See.]

4 To this effect is the memorable passage in the speech of Pericles, as stated by Thucydides. Livy espresses it more briefly. So Plato, Xenophon, Jamblichus. [See.]

5 This public order of command and obedience is inconsistent with the private license of resisting. See Dio Cassius.

6 St Peter speaks to the same effect as St Paul. So the Clementine Constitutions. We are taught that subjection is due to masters, even to the harsh; and the same is to be referred to kings; for the reason [in St Peter] holds equally good of kings. And we are taught also that the subjection required of us includes endurance of evil. So of parents in Publius Syrus, Elian, Justin, Livy: of kings, in Tacitus, Claudian. [See.]

V. 1 The custom of the early Christians, the best interpreters of the law of our Lord, did not deviate from this rule. For though very wicked men held the Roman empire, and there were not wanting persons who opposed them on pretence of relieving the State, the Christians never took part in their attempts. And so the Clementine Consti55tutions enjoin; and Tertullian boasts that the Christians had no share in the murder of the Roman Emperors. [See the passages.]

2 Ambrose, though fearing harm not only to himself but to his flock from Valentinian, would not use the excitement of the people as a means of resistance; as he says in his Epistles. [See.] The same Ambrose would not use the forces of Maximus against the Emperor, though both an Arian and an oppressor of the Church. So when Julian the Apostate was pursuing the most destructive counsels, he was repressed only by the tears [not the arms] of the Christians. And yet his army consisted almost entirely of Christians. Add to this that Julian’s cruelty was not only a wrong to the Christians, but brought the State into great danger. So Augustine.

VI. 1 Some learned men of our time, yielding too much to the influences of time and place, have persuaded first themselves (for so I believe) and then others, that this, though true of private persons, is not true of inferior magistrates; that they have a right of resistance, and ought to use it; which opinion is not to be admitted. For those inferior magistrates, though public persons with regard to their inferiors, are private persons with regard to their superiors. All authority is subject to the Sovereign authority; and what is not done by that authority is a private act. [See the Scholastic reasons.]

2 The state of things thus defended is like that fabled in heaven, when the minor Deities rebelled against Jove. The subordination of all to the Supreme Power is recognized by common sense; in Seneca; Papinius; Augustine. [See.]

3 And also by Divine Authority; expressed by Peter, Paul, Samuel.

4 And so also the state of public religion depends on the will of the King and the Council. (Synedrium.) The engagement of the magistrates and the people to be faithful to God, after the king, is to be understood, as far as is in their power. We do not read of the images of false gods being thrown down, except by command either of kings, or of the people when free. When this is done by force against the consent of the kings, it is related as a testimony of Divine Providence so permitting; not in approval of the human act.

5 On the contrary is urged Trajan’s saying when he gave the dagger to the Prætorian Prefect: Use it for me if I rule rightly; if ill, against me. But Trajan wished to avoid assuming kingly authority, and to be a true Governor (Princeps), and as such was subject to the will of the Senate and people; whose commands the Prefect was to execute, even against the Prince. So M. Antoninus would not touch the public money without consent of the Senate.

VII. 1 Whether in a very grave and certain danger the rule of non-resistance holds, is a more difficult question. For the laws of God may admit of exemption in cases of extreme necessity. So the Hebrew law of the Sabbath did; and this exception is approved by Christ; as also in the case of the shew-­bread. And so other laws of the Hebrews did. Not that God has not the Right of our obedience 56under certain death; but that some laws are of such a nature that it is not credible that they were given with so rigid an intention: still more in human laws.

2 Yet even human laws may command some acts of virtue with certain danger of death; as the military rule of not quitting our post. But this is not lightly to be supposed the intention of the lawgiver; nor do men appear to have accepted it so, unless extreme necessity require. For laws are and ought to be made, with a sense of human weakness. The law of which we speak (that of non-resistance) seems to depend on those who first formed civil society, and from whom the Rights of Rulers are derived. And if these could be asked whether they would impose on all this burthen, that they should prefer to die rather than in any case resist a superior by force, it is probable they would answer that they would not: unless perhaps with this addition; except resistance would involve extreme disturbance of the State, and the death of many innocent persons. And what benevolence would recommend in such circumstances, we may confidently ascribe to human law.

3 It may be said that the rigid obligation of bearing death rather than resisting a superior, proceeds not from human, but from Divine Law. But it is to be noted that Civil Society is the result, not of Divine precept, but of the experience of the weakness of separate families to protect themselves; and is thus called by Peter an ordinance of man, though it is also an ordinance of God, because He approves it. And God, approving a human law, must be conceived approving it as human, and in a human manner.

4 Barclay, the most strenuous asserter of royal authority, yet allows that the people, or a considerable part of it, has the Right of protecting itself against extreme cruelty, though he asserts the whole people to be subject to the king. I can understand, that in proportion as what is preserved [by the rule of non-resistance] is more valuable, so much the more serious a matter is the equitable construction, which allows an exception to the words of the law. But still, I do not venture indiscriminately to condemn, either individuals or a minority of the people who thus have recourse to the ultimate means of necessity, provided they do not desert a respect for the common good. So David gathered the discontented to him, and had above four hundred armed men; of course, to repel violence. But this was not till David knew that Saul sought his life. And he did not seize upon cities, but hid himself in desert places or in foreign countries, avoiding to do harm to those of his nation.

5 So the Maccabees were not justified by the general right of resistance; for Antiochus was king, and they had no legal right of resistance. They were justified by extreme danger.

6 And even in such a case, the person of the king is to be re­spected; as was done by David.

7 Nor are those who resist to throw false reproaches on any one; 57but on the king, not even true ones. Still more are they to abstain from laying hands on him. [See the heathen authorities.]

8 Whether what was lawful for David and for the Maccabees be lawful for Christians, is a graver question, since their Master, commending them to bear their cross, seems to require a more exact patience. And certainly Christ counsels flight to Christians who are in danger of death, (that is, those who are not bound to their place by duty,) but nothing beyond flight. So Peter says that Christ has left us an example, 1 Pet. ii. 21, and that we are to rejoice if we suffer as Christians, 1 Pet. iv. 12, 13, 14. And by such patience the Christian religion grew strong.

9 And so the ancient Christians teach: Tertullian; Cyprian; Lactantius; Augustine. [See the passages.]

10 So Cyril holds concerning the sword of Peter. So the Theben legion did not resist when decimated for refusing to sacrifice.

11 [The speeches of Mauritius the captain of the Theben legion, and of the soldiers, are to the same effect.]

12 [As also the speech of Exuperius their standard-bearer.]

13 Then the butchery followed. The old martyrology tells the story of their suffering without resisting.^*

14 These who professed the ὁμοσύσιον (the Son of one substance with the Father) were put to death without resistance by Valens.

15 He who follows such examples, if he so lose his life, saves it, as Christ has declared.

VIII. But on this rule of non-resistance there are some remarks to be made.

First, those Rulers who are subject to the people, whether by original institution or by subsequent convention, if they transgress against the laws and the State, may not only be resisted, but put to death, as Pausanias at Lacedæmon. So Mezentius in Virgil is resisted.

IX. Secondly, if the king or other ruler has abdicated his power, or manifestly regards it as derelict, lost to him, he may thenceforth be treated as a private person. But he is not to be regarded as possessing it as derelict, merely because he uses it negligently.

X. Thirdly, says Barclay, if the king alienates the kingdom or brings it into subjection to another, he forfeits it. At this I stop. Such an act, if the kingdom be elective or hereditary, is null; and an act which is null, cannot have any effect in law. I think that the law of the jurists concerning tenants for life, which tenants, as we have said, such kings resemble, is more applicable; namely, that if they transfer their right to another, the act has no effect. And when it is said that the tenant’s interest reverts to the lord, it is to be understood that it does so at the legal time.

But if the king take measures to transfer or subject his kingdom to another, I do not doubt that he may be resisted in that design. The authority Is one thing, the manner of holding it another; and the 58people may resist the latter being changed: for that is not comprehended in the authority. As Seneca says in a similar case; We are to obey a father; but not in his wish to become not a father.

XI. Fourthly, if the king act, with a really hostile mind, with a view to the destruction of the whole people, Barclay says that the kingdom is forfeited; for the purpose of governing and the purpose of destroying cannot subsist together: so that he who professes himself the enemy of the whole people, ipso facto, abdicates his kingdom. But this can hardly happen in a person of sound mind, who governs one people only. If he govern several peoples, he may wish to destroy one of them for the sake of another, that he may found colonies there.

XII. Fifthly, if the kingdom be bestowed by commission from a superior; and if the king either commit felony against the lord of the fief, or if there be a clause in the grant, that if the king do so and so, his subjects are released from the tie of obedience; then also the king falls back into a private person.

XIII. Sixthly, if the king have a part only of the Sovereignty, another part being in the Senate or the people, and if the king invade the part which is not his, he may justly be opposed by force, because in that part he has not authority. And this I conceive may be, although the law directs that the power of making war be in the king. For this must be understood of external war. And since each party has its portion of the Sovereignty, it must also have the right of defending that part. When this is the case, the king may lose his portion of the Sovereignty by the right of war.

XIV. Seventhly, if in conferring the royal authority, it be stated that in a certain event, the king may be resisted; although by that means there is not a part of the Sovereignty withheld, yet a certain natural liberty is retained by the subjects and exempted from the royal authority. He who alienates his right [as the people here does] may limit by compact the right so alienated.

XV. Next concerning Usurpers.

1 We speak now of an Usurper of the kingdom, not after he has by long possession or treaty acquired a Right, but so long as his possession remains illegitimate. And during such possession, the acts of government which he exercises may have an obligatory force, not from his Right, which is null, but because it is probable that the legitimate governor would wish that it should be so, rather than that laws and tribunals should be abolished and confusion ensue. Cicero says that the laws of Sylla were highly cruel, yet he thought it necessary to preserve them. So also Florus judges.

2 But in matters which are not thus necessary, and which tend to strengthen the unjust possession of the Invader, he is not to be obeyed, if he can be disobeyed without extreme danger.

XVI. But whether such an Usurper may be put down by [private] force, or put to death, is a question.

59 And first, if be have seized the kingdom by an unjust war, not legitimate according to the Law of nations, and no treaty has followed, it appears that the Right of War remains; and that everything is lawful against him which is lawful against an enemy, who may be slain even by a private person^*. Against traitors and public enemies, says Tertullian, every man is a soldier. So every one is allowed to do justice on those who desert the army.

XVII. The same may be true in virtue of a law, existing before the usurpation, which gave every one the right of killing him who did this or that before his eyes: for instance, surrounded himself with a body-guard, seized a fort, put a person to death without lawful judgment, made magistrates without the regular choice. Such laws existed at Athens and Rome.

XVIII. To kill the usurper will be lawful for one who has authority from the legitimate power: and along with such we must reckon the guardians of royal wards, as Jehoiada was to Joash, when they put down Athaliah, 2 Chron. xxiii.

XIX. 1 In other cases than these, I cannot grant that it is allowable to a private person to put down by force, or to put to death, the usurper of a kingdom: for it may be that the legitimate governor would rather that the usurper should be left in possession, than that occasion should be given to dangerous and bloody movements, which generally follow, when those are killed who have a strong faction in the people, or have friends in other nations. Whether the legitimate government would wish that peril to be incurred, is uncertain; and without knowing their will, force is not justified. Cicero said, To me any peace with my fellow-citizens seems better than civil war. So Favonius, T. Quintius, in Livy: so Aristophanes. [See.]

2 Whether liberty or peace be better, is a most difficult point; on which individuals ought not to assume the office of judges. [See Tacitus, Cicero, Lucan (i. 351), Sylla (in Plutarch de Genio Socrat. p. 576.)]

3 So Plato says we are not to do violence to our country, or to our parents. So Sallust, Plutarch, Ambrose, Thomas Aquinas.

4 The killing of Eglon king of Moab by Ehud, Judg. iii. 15, is no precedent; he had a special mandate from God. So God in other cases exercised his judgments, as by Jehu against Joram, 2 Kings ix.

XX. As a general consideration, a private person should not assume the judgment of a controverted point, but follow possession. So Christ commanded tribute to be paid to Cæsar because his image was on the coin, that is, because he was in possession of the empire.