Vindicia Contra Tyronas
(A DEFENSE OF LIBERTY AGAINST TYRANTS)
THE THIRD QUESTION (Part 1): Whether it is lawful to resist a ruler who is oppressing or ruining the country, and how far such resistance may be extended; by whom, how, and by what right or law it is permitted.
For so much as we must here discuss the lawful authority of a lawful ruler, I am confident that this question won't be in the least acceptable to tyrants and wicked rulers. But it's no wonder that those who acknowledge no law but their own whims are deaf to the voice of that law which is grounded upon reason. But I am convinced that the good rulers will willingly listen to this discussion, because they know full well that every magistrate, whatever their rank, are but an embodiment of the law. And even though nothing will convince the bad rulers, this doesn't say anything against the good, since the two are are, in character, diametrically the opposite of each other. Therefore, whatever shall be said against the actions of tyrants by no means detracts anything from good kings; on the contrary, the more tyrants are shown for their true colors, the more glorious does the true worth and dignity of good kings appear, and neither can the vicious imperfections of the one be laid open without adding perfections and respect to the honor of the other.
But as for tyrants, let them say and think what they please; that will be the least of my worries. For it is not to them, but against them that I write. I believe good kings will readily consent to that which is propounded, for they ought to hate tyrants and wicked governors just as much as shepherds hate wolves, physicians hate poisoners, or true prophets hate false doctors; for reason infuses into good kings as much hatred against tyrants, as nature imprints in dogs against wolves, for as the one lives by looting and pillaging, so the other is born or bred to redress and prevent all such outrages. It may be the flatterers of tyrants will read this and turn up their noses at it, but if they were not past all grace, they would rather blush with shame. I very well know that the friends and faithful servants of kings will not only consider and approve this argument, but also, with their best abilities, defend its contents. Accordingly as the reader shall find himself liking or disliking what we say here, let him know that by that he shall plainly discover either the affection or hatred that he bears to tyrants. Let us now enter into the matter.
Kings are made by the people
We have shown before that it is God that appoints and chooses kings, and who gives them their kingdoms. Now we say that it is the people who establish kings, puts the sceptre into their hands, and who with their support, approves the election. God would have it done in this manner so that kings should acknowledge that after God, they hold their power and sovereignty from the people. And that this would then encourage them to concentrate and direct all their efforts on the benefit of the people without being puffed with any vain imagination that they were created from material more excellent than other men, for which they were raised so high above others; as if they were to command our flocks of sheep, or herds of cattle. But let them remember and know that they are made no different than anyone else, raised from the earth by the voice and acclamations of the people, raised as it were, on their shoulders to their thrones, that they might afterwards bear on their own shoulders the greatest burdens of the commonwealth. Many ages before that, the people of Israel demanded a king. God gave and appointed the law of royal government contained in Deut. 17: 14-15: "Thou art come unto the land which the Lord thy God giveth thee, and shalt possess it, and shalt dwell therein, and shalt say, I will set a king over me like as all the nations that are about me, thou shalt in any wise set him whom the Lord thy God shall choose from amongst thy brethren, etc." You see here that the election of the king is attributed to God, but he is established by the people. Now when the practice of this law came in use, let us see in what manner they proceeded.
The elders of Israel, who represented the whole body of the people (elders are understood to be the captains, the centurions, commanders over fifties and tens, judges, provosts, but principally the chiefest of tribes) came to meet Samuel in Ramah, and not being willing longer to endure the government of the sons of Samuel, whose ill management had justly drawn on them the people's dislike, and also persuading themselves that they had found the means to make their wars hereafter with more advantage, they demanded a king of Samuel. Samuel asked counsel of the Lord, who made known that He had chosen Saul for the governor of His people. Then Samuel anointed Saul, and performed all those rights which belong to the election of a king required by the people. Now this might, perhaps, have seemed sufficient, if Samuel had presented to the people the king who was chosen by God, and had admonished them all to become good and obedient subjects. Notwithstanding, to the end that the king might know that he was established by the people, Samuel appointed the elders to meet at Mizpah, where they assembled as if the business of choosing a king had yet to begin, and nothing had already been done, in other words, as if the election of Saul hadn't happened yet. (1 Sam. 10:17) The lot was cast and fell on the tribe of Benjamin, then on the family of Matri, and lastly on Saul, born of that family, the same man whom God had chosen. Then by the consent of all the people Saul was declared king. Finally, so that Saul nor any other might attribute the aforesaid business to chance or lot, Saul then made some proof of his valor in raising the siege of the Ammonites in Jabish Gilead (1 Sam. 11). At the urging of the people, he was again confirmed king in a full assembly at Gilgal. You see that he whom God had chosen, and the lot had separated from all the rest, is established king by the support of the people.
And for David, by the commandment of God, and in a manner more evident than the former, after the rejection of Saul, Samuel anointed for king over Israel, David, chosen by the Lord. (1 Sam. 16:13). After that, the Spirit of the Lord left Saul, and instead worked in a special manner in David. But David, despite all this, did not reign, but was compelled to save himself in deserts and rocks, often coming close to the very brink of destruction. In fact, he never reigned as king until after the death of Saul, for then by the acclamation of all the people of Judah, he was first chosen king of Judah, and seven years later by the consent of all Israel, he was inaugurated king of Israel in Hebron. So then, he is first anointed by the prophet at the commandment of God, as a token he was chosen. Secondly, by the commandment of the people when he was established king. And so that kings may always remember that it is from God, but by the people, and for the people's sake that they reign, and that in their glory they don't say (as is their custom) they hold their kingdom only by God and their sword, but also add that it was the people who first gave them that sword. The same order offered in Solomon. Although he was the king's son, God had chosen Solomon to sit upon the throne of his kingdom, and by explicit words had promised David to be with him and assist him as a father his son. David had with his own mouth designated Solomon to be successor to his crown in the presence of some of the principal men of his court.
But this was not enough, and therefore David assembled at Jerusalem the princes of Israel, the heads of the tribes, the captains of the soldiers, and ordinance officers of the kings, the centurions and other magistrates of towns, together with his sons, the noblemen and worthiest personages of the kingdom, to consult and resolve upon the election. In this assembly, after they had called upon the name of God, Solomon, by the consent of the whole congregation, was proclaimed and anointed as king, and sat upon the throne of Israel. (1 Chr. 28-29) Then, and not before, the princes, the noblemen, his brothers themselves do him homage, and take the oath of allegiance. And so that it may not be said that that was only done to avoid the disputes which might arise amongst the brothers and sons of David about the succession, we read that the other following kings have, in the same manner, been established in their places. It is said, that after the death of Solomon, the people assembled to create his son Rehoboam king. (1 Ki. 12) After Amaziah was killed, (2 Chr. 25:25) Azariah, his only son, was chosen king by all the people, (2 Chr. 26:1) Ahaziah after Jehoram, Jehoahaz, the son of Josiah, after the decease of his father, whose piety might well seem to require that without any other solemnity, both he and the other were chosen and invested into the royal throne by the support of the people.
To which also belongs, that which Hushai said to Absolom: "Nay, but whom the Lord and His people, and all the men of Israel chose, his will I be, and with him will I abide" (2 Sam. 16:18). This is just like saying, "I will follow the king lawfully established, and according to the accustomed order." Thus, although God had promised to His people a perpetual lamp (that is, a king) and a continual successor of the line of David, and that the successor of the kings of this people were approved by the Word of God Himself, despite this, we see that the kings of Israel did not reign before the people had ordained and installed them with the necessary ceremonies. It may be concluded from this that the kingdom of Israel was not a hereditary monarchy, if we consider David and the promise made to him, and that it was wholly elective, if we regard the particular persons. But it is apparent that the election is only mentioned so that the kings might always remember that they were raised to their high office by the people, and therefore they should never forget during life what a strict bound of observance they are tied to with those from whom they have received all their greatness. We read that the kings of the heathen have been established also by the people; for when they had either troubles at home, or wars abroad, someone, in whose ready valor and discreet integrity the people did principally rely and rest their greatest confidence, him they presently, with universal consent, established as king.
Cicero says, that among the Medes, Diocles, from a Judge of private controversies, was, for his uprightness, elected king by the whole people, and in the same manner were the first kings chosen amongst the Romans. Insomuch, that after the death of Romulus, the interregnum and government of the hundred senators being little acceptable to the citizens, it was agreed that from that time forward, the king should be chosen by the acclamation of the people, and with the approval of the senate. Tarquinius Superbus was therefore considered to a tyrant because being chosen neither by the people nor the senate, he intruded himself into the kingdom only by force and usurpation. Therefore Julius Caesar, long after, though he gained the empire by the sword, yet so he might add some pretense of legality to his former intrusion, he caused himself to be declared, both by the people and senate, perpetual dictator. Augustus, his adopted son, would never take on him as inheritor of the empire, although he was declared so by the testaments of Caesar, but always held it as of the people and senate. The same also did Tiberius, Caligula and Claudius, and the first that assumed the empire to himself, without any color of right, was Nero, who also by the senate was condemned.
Because none were ever born with crowns on their heads and sceptres in their hands, and because no man can be a king by himself, nor reign without people (whereas on the contrary, the people may subsist by themselves, and did so, long before they had any kings), it must of necessity follow that kings were at the first constituted by the people. And although the sons and dependents of such kings, inheriting their fathers' virtues, may seem to have rendered their kingdoms hereditary to their offspring, and that in some kingdoms and countries, the right of free election seems of a sort buried, nevertheless in all well-ordered kingdoms, this custom still exists. The sons do not succeed the fathers before the people have first, as it were, re-established them by their new confirmation. Neither were they acknowledged in quality as inheriting it from the dead, but were approved and accounted kings only when they were invested with the kingdom, by receiving the sceptre and diadem from the hands of those who represent the majesty of the people. One may see most evident marks of this in Christian kingdoms which are at this day esteemed hereditary; for the French king, he of Spain and England, and others, are commonly inaugerated, and, as it were, put into possession of their authority by the peers, lords of the realm, and officers of the crown, who represent the body of the people; no more nor less than the emperors of Germany are chosen by the electors, and the kings of Polonia, by the wojewodas or palatines of the kingdom, where the right of election is yet in force.
In like manner also, the cities give no royal reception, nor entries to the king, until after their inauguration, and in ancient times they did not to count the times of their reign until the day of their coronation. This custom was strictly observed in France. But unless the continued course of some successions should deceive us, we must take notice, that the councils of the kingdoms have often preferred the cousin before the son, or the younger brother before the elder. For example, in France, Louis was preferred before his brother Robert, Earl of Eureux [Annales Gillii]; in like manner Henry before Robert, nephew to Capet. Which is more by authority of the people in the same kingdom, the crown has been transported (the lawful inheritors living) from one lineage to another, as from that of the Merovingian kings to that of the Charlemains, and from that of the Charlemains to that of Capets, the which has also been done in other kingdoms, as the best historians testify. But not to wander from France, the long continuance and power of which kingdom may in some sort plead for a ruling authority, and where succession seems to have obtained most reputation. We read that Pharamond was chosen in the year 419, Pepin in the year 751, Charles the Great, and Charlemain, the son of Pepin, in the year 768, without having any respect to their fathers' former estate. Charlemain dying in the year 772, his portion fell not presently into the possession of his brother Charles the Great, as it ordinarily happens in the succession of inheritances, but by the ordinance of the people and the estates of the kingdom he is invested with it; the same author witnesses, that in the year 812, Lewis the Courteous, although he was the son of Charles the Great, was also elected; and in the testament of Charlemain, inserted into the history written by Nauclere, Charlemain does entreat the people to choose, by a general assembly of the councils of the kingdom, which of his grandchildren or nephews the people pleased, and commanding the uncles to observe and obey the ordinance of the people. By this means, Charles the Bold, nephew to Louis the Courteous and Judith, declares himself to be chosen king, as Aimonius the French historian recites. In conclusion, all kings at the first were altogether elected, and those who at this day seem to have their crowns and royal authority by inheritance, have (or should have) first and principally their confirmation from the people. Although the people of some countries have been accustomed to choose their kings of such a lineage, which for some notable merits have worthily deserved it, yet we must believe that they choose the lineage itself, and not every branch that proceeds from it. Neither are they so tied to that election, if the successor degenerates, they may not choose another more worthy, neither those who come and are the next of that lineage are born kings, but created such, nor called kings, but princes of royal blood.
The whole body of the people is above the king.
Now, since the people choose and establish their kings, it follows that the whole body of the people is above the king. This is because he who is established by another is under that person, and he who receives his authority from another is less than the person from whom he derives his power. Potiphar the Egyptian sets Joseph over all his house; Nebuchadnezzar places Daniel over the province of Babylon; Darius sets the one hundred and twenty governors over his kingdom. It is commonly said that masters establish their servants, and kings their officers. In like manner, also, the people establish the king as administrator of the commonwealth. Good kings have accepted this title and even the bad ones themselves use of it; in fact, for a long period of time, no Roman emperor (aside from absolute tyrants such as Nero, Domitian, or Caligula) would allow himself to be called 'lord.' Furthermore, it must necessarily be, that kings were instituted for the people's sake, neither can it be, that for the pleasure of some hundreds of men, and without doubt more foolish and worse than many of the other, all the rest were made, but much rather that these hundred were made for the use and service of all the other, and reason requires that he be preferred above the other, who was made only to and for his sake. Just as for a ship's voyage, the owner appoints a pilot over her who sits at the helm and makes sure she maintain her course and not run aground. The pilot, while on duty, is strictly obeyed by the crew and even by the owner of the vessel despite the fact that he is a servant as well as the least in the ship. The only thing that makes a pilot different than the rest of the crew is that he serves in a better place than they do.
In a commonwealth, the king is the same as the pilot in a ship, the people are owners of the vessel, obeying the pilot, while he is looking out for the public good; as though this pilot neither is (nor ought) to be considered other than as a servant to the public, just as a judge or general in war differs little from other officers. But he is obligated to bear greater burdens, and expose himself to more dangers. By the same reason, the land the king acquires by use of arms by means of frontier expansion in warring on the enemy, or that which he gets by forfeiture or confiscations, actually belongs to the kingdom - not to the king but rather to the people that make up the kingdom, no more nor less than the servant does for his master; neither may one contract or obligate themselves to him, but by and with reference to the authority derived from the people. Furthermore, there are all sorts of people who live without a king, but we cannot imagine a king without people. And those who have been raised to the royal office were not advanced because they excelled other men in beauty and comeliness, nor in some excellency of nature that better enabled them to govern them as shepherds do their flocks, but since they are made out of the same substance as the rest of the people, they should acknowledge that they, as it were, borrow their power and authority.
The ancient custom of the French represents that exceedingly well, for they used to lift up on a buckler, and salute him king whom they had chosen. And why is it said, "I pray you that kings have an infinite number of eyes, a million ears, with extreme long hands, and feet exceedingly swift?" Is it because they are like Argos, Gerien, Midas, or various other mythological creatures so celebrated by the poets? Certainly not, but this is said in regard to all the people, whom the business of governing principally concerns - they lend to the king for the good of the commonwealth their eyes, their ears, their means, and their abilities. If the people forsake the king, he will presently fall to the ground, although his hearing and sight seemed most excellent at first, and that he was strong and in the best possible disposition. And even if he seemed to triumph in all magnificence, yet in an instant he will become most vile and contemptible: to be brief, instead of those divine honors wherewith all men adore him, he shall be compelled to become a petty schoolmaster, and whip children in the school at Corinth. Take away the foundation of this giant, and like the Colossus at Rhodes, he presently tumbles on the ground and breaks into pieces. Seeing then that the king is established in this degree by the people, and for their sake, and that he cannot subsist without them, who can think it strange, then, for us to conclude that the people are above the king?
Now, everything we say concerning the people universally also applies to those who in every kingdom or town lawfully represent the people, and who ordinarily are called the officers of the kingdom, or of the crown - but not those officials appointed by the king, since it is the king and not the people who places and displaces them at his pleasure. Indeed, after his death these officers have no more power, and are considered dead. On the other hand, the officers of the kingdom receive their authority from the people in the general assembly of the states (or, at the least, have done so by ancient custom) and cannot be disauthorized by anyone but them. So then the one depends on the king, the other on the kingdom; those of the sovereign officer of the kingdom, who is the king himself, and those of the sovereignty itself, that is, of the people, of which sovereignty, both the king and all his officers of the kingdom ought to depend. The responsibility of the one is proper relation to the care of the king's person; that of the other, to save the commonwealth from damage; the first ought to serve and assist the king, just as all domestic servants are obligated to their masters; the other to preserve the rights and privileges of the people, and to hinder the ruler so that he neither omit the things that are advantageous to the state, nor commit anything that may cause damage to the public.
Briefly, the one are servants and domestics of the king, employed to obey his person. The other, on the contrary, are as associates to the king, in the administration of justice, participating of the royal power and authority, being bound to the utmost of their power to assist in the management of the affairs of state, just as the king, who is, as it were, their president, and principal only in order and degree. Therefore, as all the whole people is above the king, and likewise taken in one entire body, are in authority before him, yet individually, every one of them is under the king. It is easy to know how far the power of the first kings extended, in that Ephron, king of the Hittites, could not grant Abraham the sepulchre, but in the presence and with the consent of the people (Gen. 23): neither could Hemor the Hevite, king of Sichem, contract an alliance with Jacob without the people's assent and confirmation thereof (Gen. 34); because it was then the custom to refer the most important affairs to be dispensed and resolved in the general assemblies of the people. This might easily be practiced in those kingdoms which were then almost confined within the circuit of one town.
But when the kings began to extend their limits, and since it became impossible for the people to assemble together all into one place because of their great numbers, which would have been nothing but confusion, the officers of the kingdom were established, who should ordinarily preserve the rights of the people, and also, as when extraordinary circumstances required, the people might be assembled, or at the least such a fraction as might by the most principal members be a representation of the whole body. We see this order established in the kingdom of Israel which (in the judgment of the wisest politicians) was excellently ordered. The king had his cupbearers, his carvers, his chamberlains and stewards. The kingdom had her officers, to wit, the seventy-one elders, and the heads and chief chosen out of all the tribes, who had the care of the public faith in peace and war.
Furthermore, the kingdom had magistrates in every town, who had the particular government of them, as the former were for the whole kingdom. At such times when affairs of consequence were to be dealt with, they assembled together, but nothing that concerned the public state could receive any solid determination. David assembled the officers of his kingdom when he desired to invest his son Solomon with the royal dignity; when he would have examined and approved that manner of policy, and managing of affairs, that he had revived and restored, and when there was no question of removing the ark of the covenant. And because they represented the whole people, it is said in the history, that all the people assembled. These were the same officers who delivered Jonathan from death, condemned by the sentence of the king, by which it appears, that there might be an appeal from the king to the people. After that, the kingdom was divided through the pride of Rehoboam. The council at Jerusalem, comprised of seventy one elders, seems to have such authority that they might judge the king as well as the king might judge every one of them in particular.
In this council was presided over by the duke of the house of Judah, that is, some principal man chosen out of that tribe; as also, in the city of Jerusalem, there was a governor chosen out of the tribe of Benjamin residing there. This will appear more clear by examples: Jeremiah, sent by God to announce to the Jews the destruction of Jerusalem, was therefore condemned first by the priests and prophets, in whose hands was the ecclesiastical jurisdiction, and then afterwards by all the people of the city; that is, by the ordinary judges of Jerusalem, to wit, the milleniers, and the centurions. Finally, the matter being brought before the rulers of Judah, who were the seventy-one elders assembled, and set near to the new gate of the temple, he was acquitted by them.In this very assembly, they discreetly condemned, in explicit terms, the wicked and cruel act of the king Jehoiachin, who, a little before, had caused the prophet Uriah, who also foretold the destruction of Jerusalem, to be slain. We read in another place, that Zedekiah held the authority of this council in such reverence that he was so far from delivering of Jeremiah from the dungeon where the seventy-one had cast him, that he dare scarce remove him into a less rigorous prison. After persuading him to give his consent to the putting to death the prophet Jeremiah, he answered them, that he was in their hands, and that he might not oppose them in anything. (Jer. 38:5) The same king, fearing lest they might bring charges against him, to bring him to account for certain speeches he had used to the Prophet Jeremiah, was glad to feign an untrue excuse. It appears by this, that in the kingdom of Judah, this council was above the king -- in this kingdom, I say, not fashioned or established by Plato or Aristotle, but by the Lord God Himself, being author of all their order, and supreme moderator in that monarchy. Such were the seven magi or sages in the Persian empire, who had almost a paralleled dignity with the king, and were termed the ears and eyes of the king, who also never dissented from the judgment of those sages.
In the kingdom of Sparta there were the ephori, to whom it was possible to appeal the judgment of the king, and who, as Aristotle says, had authority also to judge the kings themselves.
In Egypt the people were accustomed to choose and give officers to the king, to the end they might hinder and prevent any encroachment, or usurped authority, contrary to the laws. Now as Aristotle does ordinarily term those lawful kings, who have for their assistants such officers or counsellors, so also he makes no difficulty to say, that where they be absent, there can be no true monarchy, but rather an absolutely barbarous tyranny, or at the least such a dominion as does most nearly approach tyranny.
In the Roman Republic, such were the senators and the magistrates created by the people, the tribune of those who were called Celeres, the praetor or provost of the city, and others, insomuch as there lay an appeal from the king to the people, as Seneca declares by various testimonies drawn from Cicero's books of the commonwealth, and the history of the Horatii sufficiently shows someone who, being condemned by the judges for killing his sister, was acquitted by the people. In the times of the emperors, there was the senate, the consuls, the praetors, the great provosts of the empire, the governors of provinces, all attributed to the senate and the people, all of which were called the magistrates and officers of the people of Rome. And therefore, when that by the decree of the senate, the emperor Maximus was declared an enemy of the commonwealth, and that Maximus and Albinus were created emperors by the senate, the men of war were sworn to be faithful and obedient to the people of Rome, the senate, and the emperors. Now for the empires and public states of these times (except those of Turkey, Russia and such like, which are rather a rhapsody of robbers, and barbarous intruders, than any lawful empires), there is not one, which is not, or has not ever been governed in any other manner other than that we have described. And if through the negligence and sloth of the principal officers, the successors have found the business in a worse condition, then those who have, for the present, the public authority in their hands, are obligated to, as much as in them lies, return things back into their primary estate and condition.
In the empire of Germany, which is conferred by election, there are the electors and the rulers, both secular and ecclesiastic, the counts, barons, and deputies of the imperial cities, and as all these in their proper places are solicitors for the public good, likewise in the councils do they represent the majesty of the empire, being obliged to advise, and carefully foresee, that neither by the emperor's partiality, hate, nor affection, the public state comes to harm. And for this reason, the empire has its chancellor, as well as the emperor his, both the one and the other have their peculiar officers and treasurers apart from each other. And it is a thing so well-known, that the empire is preferred before the emperor, that it is a common saying, "That emperor does homage to the empire."
In like manner, in the kingdom of Poland, there are for officers of the crown, the bishops, the palatines, the castellains, the nobility, the deputies of towns and provinces assembled extraordinarily, before whom and with whose consent, and nowhere else, they make new laws, and decisions concerning wars. For the ordinary government there are the counsellors of the kingdom, the chancellor of the state, etc., although the king has his own stewards, chamberlains, servants, and domestics. Now if any man should demand who were the greater in Poland, the king, or all the people of the kingdom, represented by the lords and magistrates, he should do as much, as if he asked at Venice, if the duke were above the dominion. But what shall we say of kingdoms, which are said to be hereditary monarchies? We may indeed conclude the very same. The kingdom of France, heretofore preferred before all others in excellency of their laws and majesty of their estate, is a good example. Now, if those who have the public commands in their hands do not discharge their duties as they should, it does not follow that they are not obligated to do it. The king has his high steward of his household, his chamberlains, his masters of his games, cupbearers, and others, whose offices were accustomed to depend on the person of the king. After the death of their master, their offices then became void. And indeed, at the funeral of the king, the lord high steward, in the presence of all the officers and servants of the household, breaks his staff of office, and says, "Our master is dead, let every one provide for himself." On the other side, the kingdom has her own officers, to wit, the mayor of the palace, who since has been called the constable, the marshals, the admiral, the chancellor, or great referendary, the secretaries, the treasurers and others, who heretofore were created in the assembly of the three estates, the clergy, the nobility, and the people.
Since the parliament of Paris was made sedentary, they are not thought to be established in their places before they have been first received and approved by that session of parliament, and may not be dismissed nor disposed but by the authority and consent of the same. Now all these officers take their oath first to the kingdom, which is as much as to say, to the people, then to the king who is protector of the kingdom, which can be seen by the tenure of the oath. Above all, the constable, who, receiving the sword from the king, has it girded around him with this charge, that he maintain and defend the commonwealth, as we can see by the words that the king then pronounces. Besides, the kingdom of France has the peers (so called either for that they are the king's companions, or because they are the fathers of the commonwealth) taking their names from the several provinces of the kingdom, in whose hands the king at his inauguration takes his oath as if all the people of the kingdom were in them present which shows that these twelve peers are above the king. They on the other side swear, "That they will preserve not the king, but the crown, that they will assist the commonwealth with their counsel, and therefore will be present with their best abilities to counsel the ruler both in peace and war," as appears plainly in the formula of the oath of their peership.
And they therefore have the same right as the peers of the court, who, according to the law of the Lombards, were not only associates to the feudal lord in the judgment of causes, but also did take an account, and judge the disputes that happened between the lord and his vassals. We may also know, that those peers of France often discussed suits and differences between the king and his subjects. Insomuch, that when Charles VI would have given sentence against the Duke of Brittany, they opposed it, alleging that the discussing of that business belonged properly to the peers and not to the king, who might not in any sort derogate from their authority. Therefore it is that at the present day, the parliament of Paris is called the court of peers, being in some sort constituted judge between the king and the people; even between the king and every private person, and is bound and ought to maintain the least in the kingdom against the king's attorney, if he undertake anything contrary to law.
Furthermore, if the king ordain anything in his council, if he treat any agreement with the neighboring rulers, if he begin a war, or make peace, as lately with the emperor Charles V, the parliament ought to interpose their authority, and all that which concerns the public state must be dealt with there. Neither is there anything firm and stable which the parliament does not first approve. And to the end that the counsellors of that parliament should not fear the king, formerly they did not attain to that place without the nomination of the whole body of the court; neither could they be dismissed for any lawful cause, but only by the authority of the said body.
Furthermore, if the orders of the king are not subsigned by a secretary of the kingdom, at this day called a secretary of state, and if the public decrees are not sealed by the chancellor, who has power also to cancel them, they are of no force or value. There are also dukes, marquesses, earls, viscounts, barons, seneschals, and, in the cities and good towns, mayors, bailiffs, lieutenants, capitols, consuls, syndics, sheriffs and others, who have special authority, through the circuit of some countries or towns, to preserve the people of their jurisdiction. At the present day some of these dignities have become hereditary. Thus much concerning the ordinary magistrates.
The assembly of the three estates.
Besides all this, in ancient times, the general or three estates were assembled every year (and these days, they meet when required by urgent necessity) and all the provinces and towns of any size, meaning the burgesses, nobles and ecclesiastical persons, did they all send their deputies, and there they did publicly deliberate and conclude matters which concerned the public state. The authority of this assembly was always such that whatever it decided, whether it were to establish peace, or declare war, or create a regent in the kingdom, or impose some new tribute, was held firm and inviolable. And even by the authority of this assembly, kings themselves, if convicted of loose intemperance, or incompetence, or even for a charge as great as tyranny, were removed from the throne. And not only that, but all their descendants also were excluded from the royal succession, just as their ancestor was, by the same authority, raised to the throne of the same kingdom. Those whom the consent and approval of the estates had formerly raised, were by the dissent and disallowing of the same council, afterwards cast down. Those who, stepping in the virtuous steps of their ancestors, treated their own election to the throne as if it had been owed to them by right of inheritance, were driven out and disinherited for their degenerate ingratitude. For being tainted with insupportable vices, they made themselves incapable and unworthy of such honor. This shows that familial succession was tolerated in order to avoid all the plotting, sneaky and underhanded canvassing for votes, discontent of the unsuccessful candidates, interregnums, and other troubles resulting from holding elections. But on the other hand, when these successions brought other mischiefs more pernicious, when tyranny trampled on the kingdom, and when a tyrant possessed himself of the royal throne, the medicine proving much worse than the disease, then the estates of the kingdom lawfully assembled in the name of all the people, have ever maintained their authority, whether it were to drive out a tyrant, or other unworthy king, or to establish a good one in his place. The ancient French had learned that from the Gauls, as Caesar shows in his commentaries. For Ambiorix, king of the Eburons, (or Leigeons) confesses, " That such were the condition of the Gaulish empire, that people lawfully assembled had no less power over the king, than the king had over the people." This also appears also in Vercingetorix, who gives an account of his actions before the assembly of the people.
In the kingdoms of Spain, notably Aragon, Valentia, and Catalonia, there is the very same. For that which is called the Justitia Major in Aragon has the sovereign authority in itself. And there, the lords who represent the people proceed so far, that both at the inauguration of the king, as also at the assembly of the estates, which is observed every third year, they say to the king these exact words, "We who are as much worth as you, and have more power than you, choose you king upon these and these conditions, and there is one between you and us who commands over you, to wit, the Justitia Major of Aragon, who often refuses that which the king demands, and forbids that which the king enjoins."
In the kingdoms of England and Scotland the sovereignty seems to be in the parliament, which heretofore met almost every year. They refer to as parliaments the assembly of the estates of the kingdom, in which the bishops, earls, barons, and deputies of towns and provinces deliver their opinions, and resolve with a joint consent the affairs of state. The authority of this assembly has been so sacred and inviolable, that the king dare not abrogate or alter that which had been there once decreed.
It was that which heretofore called and installed in their charges all the chief officers of the kingdom, even sometimes the ordinary councillors of that which they call the king's privy council. In some, the other Christian kingdoms, as Hungary, Bohemia, Denmark, Sweden, and the rest, they have their officers apart from the kings; and histories, together with the examples that we have in these our times, sufficiently demonstrate that these officers and estates have known how to use their authority, even to the deposing and driving out of tyrannical and unworthy kings.
However, we must not think that this cuts too short the wings of royal authority, or that it is just the same as taking the king's head from his shoulders. We believe that God is almighty, neither think we it in any way diminishes His power because He cannot sin; neither do we say "that His empire is less to be esteemed, because it cannot be neither shaken, nor cast down" (??? where is that quote from?). Neither also must we judge a king to be too much abused, if he be withheld by others from falling into an error, to which he is over much inclined, or for that by the wisdom and discretion of some of his counsellors, his kingdom is preserved and kept entire and safe, which otherwise, by his weakness or wickedness, might have been ruined. Will you say that a man is less healthy because he is surrounded with discreet physicians who advise him to avoid all intemperance, and forbid him to eat such foods as are harmful to the stomach, and who purge him many times against his will. And when he resists, who will prove his better friends, these physicians who are studiously careful of his health, or those sycophants who are ready at every turn to give him that which must of necessity hasten his end? We must then always observe this distinction: The first are the friends of the king. The other are the friends of Francis who happens to be king. The friends of Francis are those who serve him. The friends of the king are the officers and servants of the kingdom. For, seeing the king has this name, because of the kingdom, and that it is the people who give being and consistence to the kingdom, and if the kingdom is lost or ruined, he must needs cease to be a king, or at the least not so truly a king, or else we must take a shadow for a substance.
Without question, those are most truly the king's friends, who are most industriously careful of the welfare of his kingdom and his worst enemies are those who neglect the good of the commonwealth, and seek to draw the king into the same lapse of error. And, as it is impossible to separate the kingdom from the people, nor the king from the kingdom, in like manner, neither can the friends of the king be disjoined from the friends of the people, and the kingdom. I say further, that those who, with a true affection, love Francis had rather see him a king than a subject. Now, seeing they cannot see him a king, it necessarily follows, that in loving Francis, they must also love the kingdom. But those who would be esteemed more the friends of Francis, than of the kingdom and the people, are truly flatterers, and the most pernicious enemies of the king and public state.
Now, if they were true friends indeed, they would desire and endeavour that the king might become more powerful, and more assured in his estate according to that notable saying of Theopompus, king of Sparta, after the ephores or controllers of the kings were instituted. "The more," said he, "are appointed by the people to watch over, and look to the affairs of the kingdom, the more those who govern shall have credit, and the more safe and happy shall be the state."
Whether lack of use can take away the authority of the people.
But perhaps someone will reply, 'you speak to us here of peers, of lords and officers of the crown. But to me these are nothing but shadows of the past, and as substantial as actors on a stage. I don't see any "authority of the people," and what's worse, most of the royal officers think of nothing but themselves, serving as sycophants to those kings who bat poor people around like tennis balls. Hardly any will extend either compassion or a helping hand to those in misery who are fleeced and scorched to the very bones by their insolent and insupportable oppression. And if any so much as desire to do so, they are immediately condemned as rebels and seditious, and are forced either to flee, or else, if they remain, put both of life and liberty at risk.' What is the answer to this? It is this: The outrageousness of kings, the ignorance of the people, together with the wicked complicity of the great ones of the kingdom, has been for the most part such throughout the world, that the licentious and unbridled power wherewith most kings are transported and which has made them insupportable, has in a manner, by the length of continuance, gained right of prescription, and the people, for want of using it, have quit or lost their just and ancient authority. So that it ordinarily happens that what all men's care ought to attend on, is for the most part neglected by every man; for what is committed to the generality, no man thinks is commended to his custody in particular. Notwithstanding, no such prescription nor prevarication can justly act against the right of the people. It is commonly said that the exchequers admit no rule of prescription against it, much less against the whole body of the people, whose power transcends the king's, and in whose right the king assumes to himself that privilege; for otherwise, wherefore is the prince only administrator, and the people true proprietor of the public exchequer, as we will prove here presently after.
Furthermore, it is not a thing resolved on by all, that no tyrannous intrusion or usurpation, and continuation in the same course, can by any length of time prescribe against lawful liberty. If it be objected that kings were enthroned and received their authority from the people who lived five hundred years ago, and not by those now living, I answer that the commonwealth never dies, whereas kings are taken out of this life one after another. For as the continual running of the water gives the river a perpetual being, so the alternative revolution of birth and death renders the people (quoad hunc mundum) immortal. And further, just as we have at today the same Seine and Tiber rivers as 1,000 years ago, in like manner is there also the same people of Germany, France, and Italy (excepting intermixing of colonies, or such like). Neither can the progress of time, nor changing of individuals alter in any way the right of those people. Furthermore, they say the king receives his kingdom from his father, and not from the people, and he from his grandfather, and so one from another upward. I ask, could the grandfather or ancestor transfer a greater right to his successor than he had himself? If he could not (as without doubt it must need be so) is it not clear that what the successor further arrogates to himself is equivalent to highway robbery? On the contrary, the people retain their right of eviction (of the king) intact. Although the officers of the crown have for a time lost or left their ranks, this cannot in any true right go against the people, but rather the opposite: As one would not grant audience or show favor to a slave who had long held his master prisoner, and did not only vaunt himself to be free, but also presumptuously assumed power over the life and death of his master, neither would any man allow the excuses of a thief, because he had continued in that trade thirty years, or that he had been bred for that way of life by his father, if he presumed that his long continuance in that function counts as lawfulness. Rather, the longer he had continued in his wickedness, the more grievous should be his punishment. In like manner, the prince is altogether unsupportable, who, because he succeeds a tyrant, or has kept the people (by whose suffrages he holds the crown) in long slavery, or has suppressed the officers of the kingdom (who should be protectors of the public liberty), that he therefore presumes that what he affects is lawful for him to effect, and that his will is not to be restrained or corrected by any positive law whatsoever. For long continuation in tyranny detracts nothing from the right of the people. Actually, it rather much aggravates the ruler's outrages. But what if the peers and principal officers of the kingdom make themselves parts with the king? What if betraying the public bring down the yoke of tyranny upon the people's neck? Does it follow that by this prevarication and treason the authority is assumed by the king? Does this detract anything from the right of the people's liberty, or does it add any licentious power to the king? Let the people thank themselves, say you, who relied on the disloyal loyalty of such men.
But I answer, that these officers are indeed those protectors whose principal care and study should be that the people are maintained in the free and absolute fruition of their goods and liberty. And therefore, in the same manner as if a treacherous advocate for a sum of money should agree to betray the cause of his client into the hands of his adversary, which he ought to have defended, does not have power for all that to alter the course of justice, nor of a bad cause to make a good one, although perhaps for a time he can make it look like one. In like manner this conspiracy of the great ones combined to ruin the inferiors cannot nullify the right of the people. In the mean season, those great ones incur the punishment that they themselves allot against prevaricators, and for the people, the same law allows them to choose another advocate and afresh to pursue their cause, as if it were then only to begin. For if the people of Rome condemned the captains and generals of their armies because they negotiated with their enemies to their disadvantage (although they were drawn to it by necessity, being on the verge of being overthrown) and would not be bound to perform the soldiers' negotiated decisions, much less shall a free people be tied up to bear the yoke of slavery, which is cast on them by those who should and might have prevented it; but being neither forced nor compelled, did, for their own particular gain, willingly betray those who had committed their liberty to their custody.
Why kings were created.
Now, seeing that kings have been ever established by the people, and that they have had associates joined with them to contain them within the limits of their duties, these associates, when considered in particular one by one, are under the king, and altogether in one entire body are above him. We must consequently see why kings were first established, and what is principally their duty. We usually esteem a thing just and good when it attains to the proper end for which it is ordained. In the first place every one agrees that men, by nature loving liberty and hating servitude, and born rather to command than obey, have not willingly admitted to be governed by another, and renounced, as it were, the privilege of nature by submitting themselves to the commands of others for some special and great profit that they expected from it. For as Aesop says, "That the horse being before accustomed to wander at his pleasure, would never have received the bit into his mouth, nor the rider on his back, but that he hoped by that means to overmatch the bull." Neither let us imagine, that kings were chosen to apply to their own proper use the goods that are gotten by the sweat of their subjects; for every man loves and cherishes his own. They have not received the power and authority of the people so they can use it to pander to their pleasures: for ordinarily, the inferiors hate, or at least envy, their superiors.
Let us then conclude, that they are established in this place to maintain by justice, and to defend by force of arms, both the public state, and particular persons from all damages and outrages. This is why St. Augustine said, "Those are properly called lords and masters who provide for the good and profit of others, as the husband for the wife, fathers for their children." They must therefore obey them who provide for them; although, indeed, to speak truly, those who govern in this manner may in a sort be said to serve those whom they command over. For, as says the same doctor, they command not for the desire of dominion, but for the duty they owe to provide for the good of those who are subjected to them; not affecting any lord-like domineering, but with charity and singular affection, desiring the welfare of those who are committed to them. Seneca in the eighty-first epistle says, "That in the golden age, wise men only governed kingdoms: they kept themselves within the bounds of moderation, and preserved the meanest from the oppression of the greatest. They persuaded and dissuaded, according as it advantaged or disadvantaged, the public profit; by their wisdom, they furnished the public with plenty of all necessaries, and by their discretion prevented scarcity, by their valor and courage they expelled dangers, by their many benefits they increased and enriched their subjects; they pleaded not their duty in making pompous shows, but in well governing their people. No man made trial what he was able to do against them, because every one received what he was capable of from them," etc.
Therefore, to govern is nothing else but to provide for. These proper ends of commanding, being for the people's benefit, the only duty of kings and emperors is to provide for the people's good. The kingly dignity to speak properly is not a title of honor, but a weighty and burdensome office. It is not a discharge or vacation from affairs to run a licentious course of liberty, but a charge and vocation to all industrious employments for the service of the commonwealth; the which has some glimpse of honor with it because in those first and golden ages, no man would have tasted such continual troubles if they had not been sweetened with some relish of honor; insomuch as there was nothing more true than that which was commonly said in those times, "If every man knew with what turmoils and troubles the royal wreath was wrapped with, no man would desire to pick it up, even if it lay right at his feet."
When, therefore, that the distinction between 'mine' and 'thine' entered into the world, and that differences occurred between fellow citizens, touching the propriety of goods, and wars amongst neighboring people about boundary disputes, the people bethought themselves to have recourse to some one who both could and should take order that the poor were not oppressed by the rich, nor the patriots wronged by strangers. Nor as wars and suits increased, they chose someone in whose wisdom and valor they gave all their confidence. See, then, why kings were created in the first ages; that is, to administer justice at home, and to be leaders in the wars abroad, and not only to repulse the incursions of the enemy, but also to repress and hinder the devastation and spoiling of the subjects and their goods at home; but above all, to expel and drive away all devices and debauchments far from their dominions. This may be proved by every history, both sacred and secular. For the people of God, they had at first no other king but God Himself, who dwelt in the midst of them, and gave answer from between the cherubims, appointed extraordinary Judges and captains for the wars; by means whereof the people thought they had no need of lieutenants, being honored by the continual presence of their Sovereign King.
Now, when the people of God began to grow weary of the injustice of the sons of Samuel, on whose old age they dare no longer rely, they demanded a king after the manner of other nations, saying to Samuel, "Give us a king as other people have, that he may judge us." There is mentioned the first and principal point of the duty of a king, a little after they are both mentioned. "We will have" (said they) "a king over us like other nations. Our king shall judge us, and go in and out before us, and lead our armies." To do justice is always set in the first place, for so much as it is an ordinary and regular thing; but wars are extraordinary, and happen, as it were, haphazardly. Therefore, Aristotle says, that in the time of Herold, all kings were judges and captains. For the Lacedemonian kings, they in his time also had sovereign authority only in the army, and that confined also to the commandments of the magistrates. In like manner the Medes, who were ever in perpetual quarrels amongst themselves, at length chose Deolces to be judge, who had carried himself well in the deciding of some particular differences; presently after they made him king, and gave him officers and guards, that he might more easily suppress the powerful and insolent. Cicero says that in ancient times all kings were established to administer justice, and that all institutions, and all laws, had one and the same end, which was, that equity and right might be duly rendered to all men. This may be verified by the propriety of the words in almost all languages. Kings are called by the Latins, Reges a regendo, for that they must rule and govern the limits and bounds, both of the public and particulars. The names of emperors, princes, and dukes have relation to their conduct in the wars, and principal places in battles, and other places of command. Likewise the Greeks call them in their language, Basiles, Archae, Hegomodes, which is to say chiefs of the people, princes, leaders. The Germans and other nations use all significant names which express that the duty of a king consists not in making glorious parades; but that it is an office of a weighty charge and continual care. But, in brief, the poet Homer calls kings the judges of cities, and in describing Agamemnon, he calls him wise, strong, and valiant. As also, Ovid, speaking of Erechtheus, says, that it was hard to know, whether justice or valor were more visible in him; in which these two poets seem exactly to have described the duties of kings and princes. You see what was the custom of the kings of the heathen nations; after whose examples, the Jews demanded and established their kings. The Queen of Sheba said also to Solomon, that God had made him king over them to do judgment and justice. And Solomon himself, speaking to God, said, "Thou hast chosen me to be a king over Thy people, and a judge of Thy sons and daughters."
For this cause also the good kings, as David, Josephat, and others, being not able in their own persons to determine all the suits and differences of their subjects (although in the causes of greatest importance they reserved an appeal always to themselves, as appears in Samuel), had ever above all things a special care, to establish in all places just and discreet judges, and principally still to have an eye to the right administration of justice; knowing themselves to carry the sword, as well to chastise wicked and unjust subjects, as to repulse foreign enemies.
Briefly, as the apostle says, "The prince is ordained by God, for the good and profit of the people, being armed with the sword to defend the good from the violence of the wicked, and when he discharges his duty therein, all men owe him honor and obedience." Seeing then that kings are ordained by God and established by the people, to procure and provide for the good of those who are committed unto them, and that this good or profit be principally expressed in two ways, to wit, in the administration of justice to their subjects and in the managing of armies for the defense against their enemies: certainly, we must infer and conclude from this, that the prince who applied himself to nothing but his own pleasures pursuits, or to those ends which most readily contribute "hereunto, who contemns and perverts all laws, who uses his subjects more cruelly than the barbarous enemy would do, he may truly and really be called a tyrant, and that those who in this manner govern their kingdoms, be they of never so large an extent, are more properly unjust pillagers and free-booters, than lawful governors."
We must here yet proceed a little further: for it is demanded whether the king who presides in the administration of justice has power to resolve and determine business according to his own will and pleasure? Must the kings be subject to the law, or does the law depend upon the king? The law (says an ancient) is respected by those who otherways condemn virtue, for it enforces obedience, and ministers' conduct in warfaring, and gives vigor and luster to justice and equity. Pausanias the Spartan will answer in a word, that it becomes laws to direct, and men to yield obedience to their authority. Agesilaus, king of Sparta, says that all commanders must obey the commandments of the laws. But it shall not be amiss to carry this matter a little higher. When people began to seek for justice to determine their differences, if they met with any private man that did justly appoint them, they were satisfied with it. Now for so much as such men were rarely and with much difficulty met with, and for that the judgments of kings received as laws were oftentimes found contrary and difficult, then the magistrates and others of great wisdom invented laws, which might speak to all men in one and the same voice.
This being done, it was expressly enjoined to kings, that they should be the guardians and administrators, and sometimes also, for so much as the laws could not foresee the particularities of actions to resolve exactly, it was permitted the king to supply this defect, by the same natural equity by which the laws were drawn; and for fear lest they should go against law, the people appointed them from time to time associates, counsellors, of whom we have formerly made mention, therefore there is nothing which exempts the king from the obedience which he owes to the law, which he ought to acknowledge as his lady and mistress, esteeming nothing can become him worse than that feminine of which Juvenal speaks: Sic volo, sic jubeo, sic pro ratione voluntas: I will, I command, my will shall serve instead of reason. Neither should they think their authority the less because they are confined to laws, for seeing the law is a divine gift coming from above, which human societies are happily governed and addressed to their best and most blessed end. Those kings are as ridiculous and worthy of contempt who repute it a dishonor to conform themselves to law, as those surveyors who think themselves disgraced by using a rule, a compass, a chain or other instruments, which men understanding the art of surveying are accustomed to do, or a pilot who had rather fail according to his fantasy and imagination, than steer his course by his needle and seaman's compass.
Who can doubt that it is more profitable and convenient to obey the law rather than the king who is but one man? The law is the soul of a good king, it gives him motion, sense and life. The king is the organ and, as it were, the body by which the law displays her forces, exercises her function, and expresses her conceptions. Now it is a thing much more reasonable to obey the soul than the body; the law is the wisdom of diverse sages, recollected in few words, but many see more clear and further than one alone. It is much better to follow the law than any one man's opinion, be he ever so perceptive. The law is reason and wisdom itself, free from all perturbation, not subject to be moved with ill-temper, ambition, hate, or favoritism. Entreaties nor threats cannot make to bow nor bend; on the contrary, a man, though endued with reason, permits himself to be lead and transported with anger, desire of revenge, and other passions which perplex him in such sort, that he loses his understanding, because being composed of reason and disordered affections, he cannot so contain himself, but sometimes his passions become his master. Accordingly we see that Valentinian, a good emperor, permits those of the empire to have two wives at once, because he himself was misled by that impure affection. Because Cambises, the son of Cyrus, became enamored of his own sister, he would therefore have marriages between brother and sister be approved and held lawful. Cubades, king of the Persians, prohibited the punishment of adulterers. We must expect such laws continually if we allow the law to be subject to the king. To come to our purpose, the law is an understanding mind, or rather an obstacle of many understandings: the mind, being the seal of all the intelligent faculties, is (if I may so term it) a parcel of divinity; insomuch as he who obeys the law, seems to obey God, and receive Him for arbitrator of the matters in controversy.
But, on the contrary, insomuch as man is composed of this divine understanding, and of a number of unruly passions; so losing himself in that brutishness, as he becomes void of reason; and, being in that condition, he is no longer a man, but a beast; he then who desires rather to obey the king than the law, seems to prefer the commandment of a beast before that of God. And furthermore, though Aristotle were the tutor of Alexander, yet he confesses that the Divinity cannot so properly be compared to anything in this life, as to the ancient laws of well-governed states. He who prefers the commonwealth, applies himself to God's ordinances: but he who leans to the king's fancies, instead of law, prefers brutish sensuality before well-ordered discretion. To which also the prophets seem to have respect, who, in some places, describe these great empires as under the representation of ravening beasts. But to go on, is not he a very beast, who had rather have for his guide a blind and mad man, than he who sees both with the eyes of the body and mind, a beast rather than God? Whence it comes, that though kings, as says Aristotle, for a while, at the first, commanded without restraint of laws; yet presently after, civilized people reduced them to a lawful condition, by binding them to keep and observe the laws: and for this unruly absolute authority, it remained only amongst those who commanded over barbarous nations.
He says afterwards that this absolute power was the next degree to plain tyranny, and he would have absolutely called it tyranny, had not these beasts, like barbarians, willingly subjected themselves to it. But it will be replied, that it is unworthy of the majesty of kings to have their wills bridled by laws. But I will say, that nothing is more royal than to have our unruly desires ruled by good laws. It is much pity to be restrained from that which we would do; it is much more worse to will that which we should not do, but it is the worst of all to do that which the laws forbid. I hear, methinks, a certain furious tribune of the people who opposed the passing of a law that was made against the excess which then reigned in Rome, saying, "My masters, you are bridled, you are idle and fettered with the rude bonds of servitude; your liberty is lost, a law is laid on you that commands you to be moderate. To what purpose is it to say you are free, since you may not live in what excess of pleasure you like?" This is the very complaint of many kings at this day, and of their minions and flatterers. The royal majesty is abolished, if they may not turn the kingdom topsy-turvy at their pleasure. Kings may go and shake their ears, if laws must be observed. Therefore, it is a miserable thing to live, if a madman may not be permitted to kill himself when he will. For what else do those things which violate and abolish laws, without which, neither empires, no, nor the very societies of free-booters can at all subsist?
Let us then reject these detestable, faithless, and impious vanities of the court-flatterers, which make kings gods, and receive their sayings as oracles, and, worse, shamelessly persuade kings that nothing is just or equitable except as it takes its true form of justice or injustice according as it pleases the king to ordain, as if he were some god, which could never err nor sin at all. Certainly, all that which God wills is just, and therefore, suppose it is God's will; but that must be just with the king's will before it is his will. For it is not just because the king has appointed it; but that king is just, which appoints that to be held for just, which is so of itself. We will not then say as Anaxarchus did to Alexander, much perplexed for the death of his friend Clitus, whom he had killed with his own hands; to wit, that Themis, the goddess of Justice, sits by kings' side, as she does by Jupiter's, to approve and confirm whatsoever to them shall seem good. Rather, she sits as president over kingdoms, to severely chastise those kings who wrong or violate the majesty of the laws. We can in no ways approve that saying of Thrasimachus the Chaldonian that the profit and pleasure of princes is the rule by which all laws are defined. Instead, right must limit the profit of princes, and the laws restrain their pleasures. And instead of approving that which that villainous woman said to Caracalla, that whatsoever he desired was allowed him, we will maintain that nothing is lawful but what the law permits. And absolutely rejecting that detestable opinion of the same Caracalla, that princes give laws to others but received none from any; we will say, that in all kingdoms well established, the king receives the laws from the people which he ought carefully to consider and maintain. And whatsoever he does against them, either by force or fraud, must always be reputed unjust.
Kings receive laws from the people.
These may be sufficiently verified by examples. Before there was a king in Israel, God by Moses prescribed to him both sacred and civil ordinances, which he should have perpetually before his eyes. But after Saul was elected and established by the people, Samuel delivered it to him written, to the end, he might carefully observe it; neither were the succeeding kings received before they had sworn to keep those ordinances. The ceremony was this, that together with the setting of the crown on the king's head, they delivered into his hands the Book of the Testimony, which some understand to be the right of the people of the land, others, the law of God according to which he ought to govern the people. Cyrus, acknowledging himself conservator of his country's laws, obliges himself to oppose any man who would offer to infringe them; and at his inauguration, ties himself to observe them, although some flatterers tickled the ears of his son Cambises, that all things were lawful for him.
The kings of Sparta, whom Aristotle calls lawful princes, did every month renew their oaths, promising in the hands of the magistrates speaking for the kingdom, to rule according to those laws which they had from Lycurgus. When Archidamus, the son of Zeuxidamus, was asked who were the governors of Sparta, he answered, "The laws, and the lawful magistrates." And lest the laws might grow into contempt, these people bragged that they received them from heaven; and that they were inspired from above, to the end that men might believe that their determinations were from God, and not from man. The kings of Egypt did in nothing vary from the tenor of the laws, and confessed that their principal felicity consisted in the obedience they yielded to them. Romulus, at the institution of the Roman kingdom, made this agreement with senators: the people should make laws, and he would take both for himself and others, to see them observed and kept. Antiochus, the third of that name, king of Asia, wrote to all the cities of his kingdom, that if in the letters sent to them in his name, there were anything found repugnant to the laws, they should believe they were no act of the king's, and therefore yield no obedience unto them. Now, although some citizens say, that by decree of the senate, the emperor Augustus was declared to be exempt from obedience to laws; yet, notwithstanding, Theodosius, and all the other good and reasonable emperors, have professed that they were bound to the laws, lest what had been extorted by violence, might be acknowledged and received instead of law. And for Augustus Caesar, insomuch as the Roman commonwealth was enslaved by his power and violence; she could say nothing freely, but that she had lost her freedom. And because they dare not call Augustus a tyrant, the senate said he was exempt from all obedience to the laws, which was in effect as much as if they plainly should have said the emperor was an outlaw. The same right has ever been of force in all well-governed states and kingdoms of Christendom.
For neither the emperor, the king of France, nor the kings of Spain, England, Poland, Hungary, and all other lawful princes; as the archdukes of Austria, dukes of Brabante, earls of Flanders, and Holland, nor other princes, are not admitted to the government of their estates, before they have promised to the electors, peers, palatines, lords, barons, and governors, that they will render to every one right according to the laws of the country. This oath is so strict that they cannot alter or innovate anything contrary to the privileges of the countries without the consent of the towns and provinces. If they do it, they are no less guilty of rebellion against the laws than the people are in like manner, if they refuse obedience when they command according to law. Briefly, lawful princes receive the laws from the people as well as the crown, in lieu of honor, and the scepter, in lieu of power, which they are bound to keep and maintain and therein lies their highest glory.
If the ruler may make new laws.
What then? Shall it not be lawful for a ruler to make new laws and abrogate the old? Seeing it belongs to the king, not only to advise that nothing be done neither against, nor to defraud the laws, but also that nothing be wanting to them, nor anything too much in them: briefly, that neither age nor lapse of time do abolish or entomb them; if there be anything to abridge, to be added or taken away from them, it is his duty to assemble the estates, and to demand their advice and resolution, without presuming to publish anything before the whole have been, first, duly examined and approved by them. After the law is once enacted and published, there is no more dispute to be made about it; all men owe obedience to it. And the ruler, to teach other men their duty (for all men are easier led by example than by precepts), must necessarily express his willingness to observe the laws, or else by what right can he require obedience in his subjects, to that which he himself condemns?
For the difference which is between kings and subjects ought not to consist in impunity, but in equity and justice. And therefore, although Augustus was esteemed to be exempt by the decree of the senate, notwithstanding, reproving of a young man who had broken the Julian law concerning adultery, he boldly replied to Augustus, that he himself had transgressed the same law which condemns adulterers. The emperor acknowledged his fault, and for grief forbore too late. So convenient a thing it is in nature, to practice by example that which we would teach by precept. The lawgiver Solon was wont to compare laws to money, for they maintain human societies, as money preserves traffic, and neither are improper, then, if the king may not (or at the least heretofore could not), lawfully alter or debase the currency without the consent of the commonwealth -- much more less can he have power to make and unmake laws without which kings nor subjects, can live together in security, but must be forced to live brutishly in caves and deserts like wild beasts. Therefore the emperor of Germany, esteeming it needful to make some law for the good of the empire, first demanded the advice of the estates. If it be there approved, the rulers, barons, and deputies of the towns sign it, and then the law is satisfied, for he solemnly swears to keep the laws already made, and to introduce no new ones without a general consent.
There is a law in Polond, which has been renewed in the year 1454, and also in the year 1538, and by this it is decreed, that no new laws shall be made, but by a common consent, nor nowhere else, but in the general assembly of the estates. For the kingdom of France, where the kings are thought to have greater authority than in other places, in ancient times all laws were only made in the assembly of the estates, or in the ambulatory parliament. But since this parliament has been sedentary, the king's edicts are not received as authentic before the parliament has approved them. Whereas on the contrary, the decrees of this parliament, where the law is defective, have commonly the power and effect of law. In the kingdoms of England, Spain, Hungary, and others, they yet enjoy in some sort their ancient privileges. For if the welfare of the kingdom depends on the observation of the laws, and the laws are enslaved to the pleasure of one man, is it not most certain, that there can be no permanent stability in that government? Must it not then necessarily come to pass, that if the king (as some have been) be infected with lunacy, either continually, or by intervals, that the whole state fall inevitably to ruin? But if the laws are superior to the king, as we have already proved, and that the king is tied in the same respect of obedience to the laws as the servant is to his master, who will be so senseless, who will not rather obey the law than the king or will not readily yield his best assistance against those who seek to violate or infringe them? Now seeing that the king is not lord over the laws, let us examine how far his power may be justly extended in other things.
Whether the ruler have power of life and death over his subjects.
The minions of the court consider it self-evident that rulers have the same power of life and death over their subjects as ancient masters had over their slaves. With these false imaginations have so bewitched rulers, that many, although they do not much use this imaginary right, yet imagine that they may lawfully do so, and in how much they desist from the practice thereof, insomuch that they quit and relinquish their right and due.
But we affirm on the contrary, that the ruler is but as the minister and executor of the law, and may only unsheathe the sword against those whom the law has condemned; and if he do otherwise, he is no more a king, but a tyrant; no longer a judge, but a malefactor, and instead of that honorable title of conservator, he shall be justly branded with that foul term of violator of the law and equity.
We must here first of all take into our consideration the foundation on which this our disputation is built, which we have resolved into this head, that kings are ordained for the benefit and profit of the public state; this being granted, the question is soon discussed. For who will believe that men sought and desired a king, who, upon any sudden motion, might at his pleasure cut their throats; or which in anger or revenge, might, when he would, take their heads from their shoulders? Briefly, who (as the wise man says) carried death at his tongue's end, we must not think so idly. There is no man so vain who would accept willingly that his welfare should depend on another's pleasure. No, with much difficulty will any man trust his life in the hands of a friend or a brother, much less of a stranger, be he never so worthy. Seeing that envy, hate, rage, did so far transport Athanas and Ajax, beyond the bounds of reason, that the one killed his children, the other failing to effect his desire in the same kind against his friends and companions, turned his fury and murderous intent and acted the same revenge upon himself. Now it being natural to every man to love himself, and to see the preservation of his own life, in what assurance, I ask you, would any man rest, to have a sword continually hanging over his head by a small thread, with the point towards him? Would any mirth or jollity be relished in such a continual affright? Can you possibly make choice of a more slender thread, than to expose your life and welfare into the hands and power of a man so unpredictable, who changes with every puff of wind, and who, almost a thousand times a day, shakes off the restraint of reason and discretion, and yields himself slave to his own unruly and disordered passions?
Can there be hoped or imagined any profit or advantage so great or so worthy, which might equalize or counteract this fear or this danger? Let us conclude then, that it is against delinquents only, whom the mouth of the law has condemned, that kings may draw forth the sword of their authority.
If the king may pardon those whom the law condemns.
But, because life is precious, and greatly desired, perhaps it will be demanded that the king be granted the power to pardon and absolve those whom the law has condemned. This I refuse. Otherwise, this cruel pity would keep alive thieves, robbers, murderers, rapists, poisoners, sorcerers, and other plagues of mankind, as history says tyrants have done before now in many places, and to our woeful experience, we see at this present time. Therefore, the stopping oflaw in this kind will, by impunity, much increase the number of offenders. So that he who received the sword of authority from the law to pardon offences will thus arm offenders against the laws, and send the wolf into the fold, which he ought to have secured against their ravenous outrage.
But for so much that it may so happen in some occasions that the law is mute, therefore there is need of a speaking law, and that the king being, in some cases, the ablest expositor, taking for the rule of his actions, equity and reason, which as the soul of the soul may so make clear the law's intention, and it may be that the offence is rather committed against the words than the intention of the law. In which case the king may free the innocent offender from the guilt thereof because a just and equitable exposition of the law may in all good reason be taken for law itself, as being the closest thing to the intention of the law-makers.
Notwithstanding, lest passion should supplant reason, kings should imitate the practice of the emperor Severus, not to determine absolutely anything before it were maturely discussed by upright and discreet men. And so the king may rigorously punish the murderer; and yet, notwithstanding, pardon him, who casually, and without any such purpose, kills a murderer. He may put to death the thief, and yet pardon that man, who, in his own defence kills him that would have robbed him. Briefly, in all other occurrences, he may distinguish, as being an established arbitrator and thus neutral, manslaughter from malice, fore-thought a good purpose from the rigor of the law, without favoring at any time malice or treason. Neither by the right omission of this duty can he gain any true esteem of merciful men: for certainly that shepherd is much more pitiful who kills the wolf, than he who lets him escape: the clemency of that king is more commendable who commits the malefactor to the hangman, than he who delivers him; by putting to death the murderer, many innocents are delivered from danger: whereas by allowing him to escape, both he and others through hope of the like impunity, are made more audacious to perpetrate further mischief, so that the immediate act of saving one delinquent, arms many hands to murder many innocents. There is, therefore, both true mildness in putting to death some, and as certain there is cruelty in pardoning others. Therefore, as it is permitted the king, since he is the custodian of the law, in some cases to interpret the words, so in all well-ordered kingdoms, the council of state is responsible to examine the king's interpretation, and to moderate both his severity and facility. If, through the corruption and weakness of men, this have not been so really and thoroughly observed as it ought: yet, notwithstanding, the right always remains entire, and only integrity and courage in the parties is necessary to make it effectual.
But not to heap up too many examples in a matter so manifestly clear, it has been practiced in this manner in France. For there we have often seen those put to death to whom the king had granted his charter of pardon; and those pardoned, whom he commanded should be put to death; and sometimes offences committed in the king's presence remitted, because there was no other witness other than
himself. This happened in the time of Henry II to a certain stranger, who was accused by the king himself of a grievous offence. If an offender, by the intercession of friends, gets his pardon granted by the king, the chancellor upon sufficient cause may cancel it. If the chancellor connive, yet must the criminal present it before the judges, who ought not only carefully to consider whether the pardon were gotten by surreptitious or indirect means, but also if it be legal, and in due form. Neither can the delinquent who has obtained his charter of pardon make use of it, until first he appeal in public court bare-headed, and on his knees plead it, submitting himself prisoner until the judges have maturely weighed and considered the reasons that induced the king to grant him his pardon. If they be found insufficient, the offender must suffer the full punishment of the law, just as if the king had not granted him any pardon at all. But, if his pardon is allowed, he ought not so much to thank the king, as the equity of the law which saved his life. The manner of these proceedings was excellently ordained, both to contain the king within the limits of equity, lest being armed with public authority, he should seek to take revenge according to his personal whims, or out of fancy or partiality, remit the wrongs and outrages committed against the public safety: as partly also to restrain an opinion in the subject, that anything could be obtained of the king which might prejudice the laws. If these things have not been observed in our times, even so that which we have formerly said remains always certain, that it is the laws which have power over the lives and deaths of the inhabitants of a kingdom, and not the king, who is but administrator and conservator of the laws.
The king's subjects are his brethren, not his slaves. For truly neither are the subjects, as it is commonly said, the king's slaves, or bondmen: being neither war prisoners nor bought for money. But if as one entire body they are considered as lords, as we have formerly proved; so each of them in particular ought to be held as the king's brothers and kinsmen. And to the end that we think this isn't strange, let us hear what God Himself says when He prescribes a law to kings: That they lift not their heart above their brethren from amongst whom they were chosen. Whereupon Bartolus, a famous lawyer, who lived in an age that bred many tyrants, also drew this conclusion from that law, that subjects were to be held and used in the quality and condition of the king's brethren, and not of his slaves. Also king David was not ashamed to call his subjects his brethren. The ancient kings were called Abimelech, a Hebrew word which means "my father the king." The almighty and all good God, of whose great gentleness and mercy we are daily partakers, and very seldom feel His severity, although we justly deserve it, yet is it always mercifully mixed with compassion; whereby He teaches princes, His lieutenants, that subjects ought rather to be held in obedience by love, than by fear.
But, lest they should have anything against me, as if I sought to detract too much from the royal authority, I believe it is so much the greater, by how much it is likely to be of longer continuance. For, says one, servile fear is a bad guardian, for that authority we desire should continue; for those in subjection hate them they fear, and whom we hate, we naturally wish their destruction. On the contrary, there is nothing more proper to maintain their authority than the affection of their subjects, on whose love they may safely and with most security lay the foundation of their greatness. And therefore that ruler who governs his subjects as brethren may confidently assure himself to live securely in the midst of dangers: whereas he who uses them like slaves, will live in much anxiety and fear, and may well resemble to the condition of that master who remains alone in some desert in the midst of a great troop of slaves; for look how many slaves any has, he must make account of so many enemies, which almost all tyrants who have been killed by their subjects have experienced. Whereas, on the contrary, the subjects of good kings are ever as solicitously careful of their safety, as of their own welfare.
This may have reference to what we read in various places of Aristotle, and was said by Agasicles, king of Sparta, that is, that kings command as fathers over their children, and tyrants as masters over their slaves, which we must take in the same sense that the civilian Martianus does, to wit, that paternal authority consists in piety, and not in rigor, for that which was practiced under the acorns, that fathers might sell, and put to death their children at their pleasure, has no authority amongst Christians. In fact, the very pagans who had any humanity would not permit it to be practiced on their slaves. Therefore, then, the father has no power over the son's life, before first the law has first determined it, otherwise he offends the case law Cornelius against privy murderers, and by the case law Pompeius against parricides, the father is no less guilty who kills the son, than the son who murders the father. For the same occasion the emperor Adrian banished into an island, which was the usual punishment for notorious offenders, a father who had slain his son, of whom he had entertained a jealous opinion for his mother-in-law. Concerning servants or slaves, we are admonished in holy writ to treat them like brethren, but by human constitutions as hirelings, or mercenaries.
By the civil law of the Egyptians and Romans, and by the constitutions of the Antonines, the master is as well liable to punishment who has killed his own slave, as he who killed another man's. In like manner the law delivers from the power of the master, the slave, whom, in his sickness, he has altogether neglected, or has not afforded convenient food, and the enfranchised slave whose condition was somewhat better, might, for any apparent injury, bring his action against his patron. Now, seeing there is so great difference between slaves and lawful children, between lords and fathers, and, notwithstanding heretofore, it was not permitted amongst the heathen, to use their slaves cruelly, what shall we say, pray tell, of that father of the people, who cries out tragically with Atreus, "I will devour my children!"? In what esteem shall we hold that ruler who takes such pleasure in the massacre of his subjects (condemned without being ever heard), that he dispatched thousands of them in one day, and yet is not glutted with blood? Briefly, who, after the example of Caligula (surnamed the Phaeton of the world) wishes that all his people had but one head that he might cut it off at one blow? Shall it not be lawful to implore the assistance of the law against such furious madness, and to pull from such a tyrant the sword which he received to maintain the law, and defend the good, when it is drawn by him only for rapine, and ruin?
Whether the goods of the people belong to the king. But to proceed, let us now see whether the king, whom we have already proved does not have power over the lives of his subjects, is not at the least lord over their goods. In these days there is no rhetoric more common in the courts of rules, than of those who say "all belongs to the king." Therefore it follows, that in exacting anything from his subjects, he takes but his own, and in that which he leaves them, he expresses the care he has that they should not be altogether destitute of means to maintain themselves. This opinion has gained so much power in the minds of some rulers, that they are not ashamed to say that the pains, sweat and industry of their subjects is the proper revenue, as if their miserable subjects only kept beasts to till the earth for their insolent master's profit and luxury. And indeed, the practice at this day is just in this manner, although by all rights it ought to be exactly the opposite. Now we must always remember that kings were created for the good and profit of the people, and that these (as Aristotle says) who endeavor and seek the welfare of the people are truly kings; whereas those who make their own private ends and pleasures the only goal and aim of their desires, are truly tyrants.
It being then so that every one loves that which is his own, and that many covet that which belongs to other men, is it anything probable that men should seek a master to give him frankly all that they had long labored for, and gained with the sweat of their brows? May we not rather imagine that they chose such a man on whose integrity they relied for the administering of justice equally both to the poor and rich, and who would not assume all to himself, but rather maintain every one in the fruition of his own goods? Or who, like an unprofitable drone, should suck the fruit of other men's labors, but rather preserve the house for those whose industry justly deserved it? Briefly, who, instead of extorting from the true owners their goods, would see them defended from all ravening oppressors? What does it matter, says the poor country man, whether the king or the enemy make havoc of my goods, since either way I and my poor family will die of hunger? Of what importance is it whether an imported or home-bred caterpillar ruins my estate, and brings my poor fortune to poverty; whether a foreign soldier, or a sycophant courtier, by force or fraud, make me alike miserable? Why shall he be accounted a barbarous enemy, if you're supposedly a friendly patriot? Why is he a tyrant if you are king? Yes, certainly by how much parricide is greater than manslaughter, by so much the wickedness of a king exceeds in mischief the violence of an enemy.
If therefore, in the creation of kings, men gave not their own proper goods to them, but only recommended them to their protection; by what other right then, but that of freebooters, can they challenge the property of other men's goods to themselves? Therefore, the kings of Egypt were not (according to law) at the first the lords of particular men's estates, but only then when they were sold to them for corn, and yet may there well be question made of the validity of that contract. Ahab, king of Israel, could not compel Naboth to sell him his vineyard; but rather if he had been willing, the law of God would not permit it. The Roman emperors who had an unreasonable power, could neither by right have done it. At this day there is with much difficulty any kingdom to be found, where the meanest subject may not suit the king, and where many times the king is not cast in the suit, which succeeding, he must as well as others satisfy the judgment. And to this is not contrary, although at the first view it seem so, that which some of their most familiars have written of the emperors. That by the civil law all things were the king's, and that Caesar was absolute lord of all things, they themselves expound this their opinion in this manner, that the dominion of all things belongs to the king, and the propriety to particular persons, in so much as the one possesses all by the right of commanding, the other by the law of inheritance. We know that it is a common saying amongst the civilians, that if any make claim to a house or a ship, it doesn't follows therefore that he can extend his right to all the furniture or lading. And therefore, a king may challenge and gain right to the kingdom of Germany, France and England: and yet, notwithstanding, he may not lawfully take any honest man's estate from him, but by a manifest injustice, seeing that they are different things, and by law distinguished, to be possessors of the whole, and of all the particular parts.
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