A treatise of civil policy: being a resolution of forty three questions concerning prerogative, right and priviledge, in reference to the supream prince and the people. / By Samuel Rutherford professor of divintiy of St Andrews in Scotland.

QUEST. XXVIII. Whether or no, Wars raised by the Subjects and Estates, for their own just defence against the Kings bloody Emissaries, be law∣full?

ARnisaeus perverteth the question; he saith, The question is,* 1.1 Whether or no, the Subjects may according to their power, judge the King, and dethrone him; that is, Whether or no, is it lawfull for the Subjects in any case, to take arms against their lawfull Prince, if he degenerate, and shall wickedly use his lawfull power?

The state of the question is much perverted, for these be diffe∣rent questions, Whether the Kingdom may dethrone a wicked and Tyrannous Prince? And whether may the Kingdom take up arms against the man who is the King, in their own innocent defence: For the former is an Act offensive, and of punishing, the latter is an Act of Defence.

2. The present question is not of Subjects onely, but of the Estates, and Parliamentary Lords of a Kingdom; I utterly deny these as they are Iudges, to be subjects to the King; for the questi∣on is, Whether is the King, or the representative Kingdom greatest, and which of them be subject one to another: I affirm, Amongst Iudges as Iudges, not one is the Commander or Superiour, and the other, the commanded or subject. Indeed, one higher Iudge may correct and punish a Iudge, not as a Iudge, but as an erring man.

3. The question is not so much concerning the authoritative Act

of War, as concerning the power of naturall Defence, upon sup∣position, That the King be not now turned an habituall Tyrant, but that upon some acts of mis-information, he come in arms against his Subjects.

2. Arnisaeus maketh two sort of Kings, Some Kings integrae* 1.2 Majestatis, of intire power and Soveraignty; some Kings by pactions or voluntary agreement, between King and people. But I judge this a vain distinction: For the limited Prince, so he be limited to a power onely of doing just and right; by this is not a Prince inte∣grae Majestatis of entire Royall Majestie, whereby he may do both good, and also play the Tyrant; but a power to do ill, being no wayes essentiall, yea, repugnant to the absolute Majestie of the King of Kings, cannot be an essentiall part of the Majestie of a lawfull King; and therefore the Prince limited by voluntary and positive paction onely, to rule according to law and equity, is the good, lawfull, and entire Prince, if he have not power to do every thing just and good in that regard, onely he is not an intire and compleat Prince. So the man will have it lawfull to resist the limited Prince, not the absolute Prince; by the contrary, it is more lawfull to me to resist the absolute Prince, then the limited, in as much, as we may with safer consciences resist the Tyrant, and the Lyon, then the just Prince and the Lamb. Nor can I assent to Cun∣nerus de officio princip. Christia. c. 5. & 17. Who holdeth, that these voluntary pactions betwixt King and people, in which the power of the Prince is diminished, cannot stand, because their power is given to them by Gods Word, which cannot be taken from them, by any volun∣tary paction, lawfully; and from the same ground, Winzetus in velit. contr. Buchan. p. 32. will have it unlawfull to resist Kings, because God hath made them unresistable. I answer, If God by a divine in∣stitution* 1.3 make Kings absolute, and above all Laws (which is a blas∣phemous supposition, the holy Lord can give to no man a power to sin, for God hath not himself any such power) then the Cove∣nant betwixt the King and people, cannot lawfully remove and take away what God by institution has given; but because God, Deut. 17. hath limited the first lawfull King, the mould of all the rest, the people ought also to limit him by a voluntary Covenant; and because the lawfull power of a King to do good, is not by divine Institution placed in an indivisible point. It is not a sin for the people to take some power, even of doing good from the King, that

he solely, and by himself, shall not have power to pardon an invo∣luntary homicide, without advice, and the judiciall suffrages of the Councell of the Kingdom, least he, insteed of this, give pardons to Robbers, to abominable Murtherers, and in so doing, the people robbeth not the King of the power that God gave him as King, nor ought the King to contend for a sole power in himself, of mini∣string justice to all; for God layeth not upon Kings, burdens un∣possible, and God by Institution, hath denied to the King, all power of doing all good, because it is his Will that other Iudges be sha∣rers with the King in that power, Num. 14. 16 Deut. 1. 14. 15, 16, 17. 1 Pet. 2. 14. Rom. 13. 1, 2, 3, 4. And therefore the Duke of Venice to me cometh neerest to the King, moulded by God, Deut. 17. in respect of power, de jure, of any King I know in Europe. And in point of conscience, the inferiour Iudge discern∣ing a murtherer, and bloody man to die, may in foro conscientiae, de∣spise the Kings unjust pardon, and resist the Kings force by his sword and coactive power that God hath given him, and put to death the bloody murtherer, and he sinneth, if he do not this; for to me it is clear, The King cannot judge so justly and understandingly of a murtherer in Scotland, as a Iudge, to whom God hath committed the sword in Scotland: Nor hath the Lord laid that unpossible burden on a King to judge so of a murther four hundreth miles, removed from the King, as the Iudge nearer to him, as is clear by Num. 14 16. 1 Sam. 7. 15, 16, 17. The King should go from place to place, and judge; and whereas it is unpossible to him, to go thorow three Kingdoms, he should appoint faithfull Iudges, who may not be resisted, no not by the King.

2. The question is, If the King command A. B. to kill his father, his pastour; the man neither being cited nor convicted of any fault, may lawfully be resisted.

3. Queritur, If in that case in which the King is captived, im∣prisoned, and not sui juris, and awed or over-awed by bloody Papists, and so is forced to command a barbarous and unjust War; and if being distracted Physically or Morally through wicked Coun∣sell, he command that which no father in his sober wits would command, even against Law and Conscience, That the sons should yeild obedience and subjection to him, in maintaining with lives and goods, a bloody Religion, and bloody Papists: If in that case, the King may not be resisted in his person, because the power law∣full

and the sinfull person cannot be separated? We hold the King using, contrary to the oath of God, and his Royall Office, violence in killing against Law and Conscience his Subjects, by bloody Emis∣saries, may be resisted by defensive Wars, at the commandment of the Estates of the Kingdom.

But before I produce Arguments, to prove the lawfulnesse of re∣sistance,* 1.4 a little of the case of resistance. 1. Doct. Ferne, part. 3. sect. 5. pag. 39. granteth resistance by force to the King to be law∣full. 1. When the assault is sudden. 2. Without colour of a Law, and Reason. 3. Inevitable. But if Nero burn Rome, he hath a colour of Law and Reason; yea, if all Rome, and his mother, in whose Womb he lay, were one neck. A man who will with reason go mad, hath colour of Reason, and so of Law, to invade and kill the inno∣cent.

2. Arnisaeus saith, If the Magistrate proceed extra-judicialiter,* 1.5 without order of Law by violence, the Laws giveth every private man power to resist, if the danger be irrecoverable; yea, though it be re∣coverable. L. prohibitum, C. de jur. fisc. l. quemadmodum. 39. §.* 1.6 Magistratus ad l. Aquil. l. nec Magistratibus, 32. de injur. Because while the Magistrate doth against his office, he is not a Magistrate, for Law and right, not injury, should come from the Magistrate. L. meminerint. 6. C. unde vi. Yea, if the Magistrate proceed judi∣cially, and the losse be irrecoverable. Jurists say, That a private man hath the same Law to resist, Marantius▪ dis. 1. n. 35. And in a recoverable losse, they say, every man is holden to resist, si evidenter constet de iniquitate; If the iniquity be known to all, D. D. Iason. n. 19. dec. n. 26. ad l. ut vim de just. & jur.

3. I would think it not fit, easily to resist the Kings unjust Ex∣actors* 1.7 of custome or tribute; 1. Because Christ payed tribute to Tiberius Caesar, an unjust usurper, though he was free from that, by Gods Law, least he should offend. 2. Because we have a greater dominion over Goods, then over our Lives and Bodies; and it is better to yield in a matter of Goods, then to come to Arms; for of sinlesse evils, we may choose the least.

4. A Tyrant without a Title may be resisted by any private man. Quia licet vim vi repellere; Because we may repell violence by vio∣lence, yea, he may be killed. Ʋ•• l. & vim. F. de iustit. & jure, ubi plene per omnes. Vasquez, l. 1. c. S. n. 33. Barcla. contra. Mo∣naroho. l. 4. c. 10. pag. 268.

For the lawfulnesse of resistance in the matter of the Kings unjust* 1.8 invasion of life and Religion, we offer these Arguments.

1. That power which is obliged to command and rule justly and religiously, for the good of the subjects, and is only set over the* 1.9 people on these conditions, and not absolutely, cannot tye the peo∣ple to subjection without resistance, when the power is abused to the destruction of Lawes, Religion, and the subjects. But all power of the Law is thus obliged, Rom. 13. 4. Deut. 17. vers. 18, 19, 20. 2 Chron. 19. 6. Ps. 132. 11, 12. Ps. 89. 30, 31. 2 Sam. 7. 12. Ier. 17. 24, 25. and hath, and may be abused by Kings, to the destruction of Lawes, Religion, and Subjects.

The Proposition is cleare, for the powers that tye us to subjecti∣on, only are of God. 2. Because to resist them, is to resist the ordi∣nance of God. 3. Because they are not a terrour to good workes, but to evill. 4. Because they are Gods Ministers for our good, but a∣bused powers are not of God, but of men, or not ordinances of God: they are a terrour to good workes, not to evill; they are not Gods Ministers for our good.

2. That power which is contrary to Law, and is evill and Tyran∣nicall,* 1.10 can tye none to subjection, but is a meere Tyrannicall power and unlawfull; and if it tye not to subjection, it may lawfully be resisted. But the power of the King abused to the destruction of Lawes, Religion, and subjects, is a power contrary to Law, evill and Tyrannicall, and tyeth no man to subjection; wickednesse by no imaginable reason can oblige any man. Obligation to suffer of wicked men, falleth under no Commandement of God, except in our Saviour. A Passion, as such, is not formally commanded, I meane a Physicall Passion, such as to be killed. God hath not said to me in any Morall Law, Be thou killed tortured, beheaded; but only, be thou patient, if God deliver thee to wicked mens hands, to suffer these things.

3. There is not a stricter Obligation Morall betwixt King and* 1.11 people, then betwixt Parents and Children, Master and servant, Pa∣tron and Clients, Husband and Wife, the Lord and the Vassell; be∣tween the Pilot of a Ship and the Passengers, the Physitian and the sick, the Doctor and the schollars: but the Law granteth l. Minime 35. De Relig. & sumpt. funer. If these betray their trust committed to them, they may be resisted; if the father turne distracted, and arise to kill his sonnes, his sonnes may violently apprehend him, and

bind his hands, and spoile him of his Weapons: for in that he is not a father, Vasquez, Lib. 1. Illustr. question. c. 8. n. 18. Si dominus sub∣ditum enormiter & atrociter oneraret, princeps superior vassallum pos∣set ex t••••o e••imere a sua jurisdictione, & etiam tacente subdito & nihil petente. Quid papa in suis decis. Parliam. grat. decis. 62. si quis Baro. abutentes dominio privari possunt. The servant may resist the Master, if he attempt unjustly to kill him; so may the Wife doe to the Husband: if the Pilot should wilfully run the ship on a Rock to destroy himselfe and his Passengers, they might violently thrust him from the Helme. Every Tyrant is a furious man, and is morally di∣stracted, as Althusius saith, Politi. c. 28. n. 30. & seq.

4. That which is given as a blessing and a favour, and a Scrine be∣tweene* 1.12 the peoples liberty and their bondage, cannot be given of God, as a bondage, and slavery to the people. But the power of a King is given as a blessing, and favour of God to defend the poore and needy, to preserve both Tables of the Law, and to keepe the people in their liberties from oppressing and treading one upon another. But so it is, that if such a power be given of God to a King, by which, Actu primo, he is invested of God, to doe acts of Tyranny, and so to doe them, that to resist him in th•• most innocent way, which is selfe defence, must be a resisting of God, and Rebellion a∣gainst the King, his Deputy, then hath God given a Royall power as incontrollable by mortall men, by any violence, as if God himselfe were immediatly and personally resisted, when the King is resisted, and so this power shall be a power to wast and destroy irresistably, and so in it selfe a plague and a curse; for it cannot be ordained both according to the intention and genuine formall effect, and intrinse∣call operation of the power to preserve the Tables of the Law, Religion and Liberty, Subjects and Lawes, and also to destroy the same; but it is taught by Royalists that this power is for Tyranny, as well as for peaceable Government, because to resist this Royall Power put forth in Acts either waies, either in acts of Tyranny, or just Government, is to resist the Ordinance of God, as Royalists say, from Rom. 13. 1, 2, 3. And we know to resist Gods ordinances and Gods Deputy, formaliter, as his Deputy, is to resist God him∣selfe, 1 Sam. 8. 7. Mat. 10. 40. as if God were doing personally these Acts, that the King is doing, and it importeth as much as the King of Kings doth these Acts in, and through the Tyrant. Now it is blasphemy to thinke or say, that when a King is drinking the

blood of innocents, and wasting the Church of God, that God, if he were personally present, would commit these same acts of Tyranny, (God would avert such blasphemy) and that God in, and through the King, as his lawfull Deputy, and Vicegerent in these acts of Tyranny, is wasting the poore Church of God. If it be said in these sinfull acts of Tyranny, he is not Gods formall Vicegerent, but only in good and lawfull acts of Government, yet he is not to be resisted in these acts, not because the acts are just and good, but because of the dignity of his Royall Person. Yet this must prove that these who resist the King in these acts of Tyranny, must resist no ordinance of God, but only that we resist him, who is the Lords Deputy, though not as the Lords Deputy; what absurd is there in that more then to disobey him, refusing active obedience to him who is the Lords Deputy, but not as the Lords Deputy, but as a man commanding, beside his Masters Warrant?

5. That which is inconsistent with the care and providence of* 1.13 God in giving a King to his Church, is not to be taught. Now Gods end in giving a King to his Church, is the feeding, safetie, preserva∣tion, the peaceable and quiet life of his Church, 1 Tim. 2. 2. Esa. 49. 23. Psal. 79. 71. But God should crosse his own end in the same act of giving a King, if he should provide a King, who, by office, were to suppresse Robbers, Murtherers, and all oppressors and wasters in his holy Mount: and yet should give an irresistible power to one crowned Lyon, a King, who may kill a thousand thousand Protestants for their Religion, in an ordinary Providence, and they are by an ordinary law of God to give their throats to his Emissaries and bloody executioners. If any say, The King will not be so cruell: I beleeve it; because, actu secundo, it is not possibly in his power to be so cruell.

2. We owe thanks to his good will, that he killeth not so many▪ but no thanks to the nature and genuine intrinsecall end of a King, who hath power from God to kill all these, and that without resistance made by any mortall man. Yea, no thanks (God avert blasphemie) to Gods ordinary providence, which (if Royalists may be beleeved) put∣teth no barre upon the illimited power of a man inclined to sinne, and abuse his power to so much crueltie. Some may say, the same absur∣ditie doth follow, if the King should turne Papist, and the Parlia∣ment all were Papists; in that case there might be so many Martyrs for the truth put to death: and God should put no bar of providence

upon this power, then, more then now: and yet in that case, the King and Parliament, should be Iudges given of God, actu primo, and by vertue of their office obliged to preserve the people in Peace and Godlinesse. But I answer: If God gave a lawfull officiall power to King and Parliament to worke the same crueltie upon millions of Martyrs, and it should be unlawfull for them by armes to defend themselves; I should then think that King and Parliament were both ex officio, by vertue of their office, and actu primo, Iudges and Fa∣thers, and also by that same office, Murtherers and Butchers. Which were a grievous aspersion to the unspotted Providence of God.

6. If the Estates of a Kingdome give the power to a King, it is* 1.14 their own power in the fountaine; and if they give it for their own good, they have power to judge when it it used against themselves, and for their evill; and so power to limit and resist the power that they gave. Now that they may take away this power, is cleare in Athaliahs case. It is true, she was a Tyrant without a Title, and had not the right of Heaven to the Crown; yet she had, in Mens Court, a title. For supposing all the seed Royall to be killed, and the peoples Consent; we cannot say, That for these sixe yeares, or thereabout, she was no Magistrate. 2. That there were none on the Throne of David at this time. 3. That she was not to be obeyed as Gods Deputie. But grant that she was no Magistrate: yet when Iehoash is brought forth to be crowned, it was a controversie to the States, to whom the Crown should belong. 1. Athaliah was in possession. 2. Iehoash himselfe being but seven yeares old, could not be Iudge. 3. It might be doubted, if Ioash was the true sonne of Ahaziah, and if he was not killed with the rest of the blood Royall.

Two great Adversaries say with us: Hugo Grotius, de jur▪ belli & pacis, l. 1. c. 4. n. 7. He saith, He dare not condemne this, if the lesser part of the People, and every one of them indifferently, should de∣fend themselves against a Tyrant, ultimo necessitatis praesidio. The case of Scotland, when we were blocked up by Sea and Land, with Armes: The case of England, when the King, induced by Prelates, first attempted to bring an Army to cut off the Parliament, and then gathered an Army, and fortified Yorke, and invaded Hull, to make the Militia his own, sure is considerable. Barclay saith, The People hath jus se tuendi adversus immanem saevitiem. Advers. Mo∣narchomach.

l. 3. c. 8. A power to defend themselves against prodi∣gious crueltie. The case of England and Ireland, now invaded by the bloody Rebels of Ireland, is also worthy of consideration. I could cite hoasts more.

Notes

• * 1.1

  Arnisaeus de authori. Princ. c. 1. n. 2. The state of the question concerning re∣sistance.
• * 1.2

  Arnisae. 16. n. 4.
• * 1.3

  If Kings be absolute by di∣vine Instituti∣on, then all Covenants re∣straining them, must be un∣lawfull spoil∣ing of Kings, of that which God hath gi∣ven them.
• * 1.4

  Resistance in some cases lawfull, ac∣cording to D. Fern.
• * 1.5

  De author. Princ. c. 2. n. 10.
• * 1.6

  Royalists hold it lawfull to resist an infe∣riour Iudge.
• * 1.7

  The Exactors of unjust tri∣bute, not easily to be resisted.
• * 1.8

  Arguments for the lawfulnesse of resisting un∣just violence.
• * 1.9

  Argum. 1.
• * 1.10

  Argum. 2.
• * 1.11

  Argum. 3.
• * 1.12

  Argum. 4.
• * 1.13

  Arg. 5.
• * 1.14

  Arg. 6.