Vindicia Contra Tyronas
(A DEFENSE OF LIBERTY AGAINST TYRANTS)
THE THIRD QUESTION (Part 4): 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.
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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