sumably, the Declaration of the
Magdeburg
Clergy, to which
we already referred.
we already referred.
Thomas Carlyle
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? 394
[past rv.
THE LATER SIXTEENTH CENTURY.
it painted out before their eyes, even by the very solemnities
and rites of their inauguration, to what affairs by the said law
their supreme authority and power reacheth. " 1
We turn again to Althusius; for he states the principles of
a contract between the prince and the community from whom
he draws his authority, very precisely and emphatically.
By the establishment of the supreme magistrate the members
of the kingdom bind themselves to obedience to him, for he
receives from the community the rule (imperium) of the
kingdom, but the people and the supreme magistrate enter
into an agreement with each other with regard to certain
laws and conditions to which they bind themselves by an
oath; and this cannot be recalled or violated either by the
magistrates or the subjects. 2
And again, in terms both general and emphatic, Althusius
declares that no kingdom or commonwealth was ever created
without a contract between the subjects and the prince,
which was to be kept religiously by both, and that if this were
violated, all the authority founded upon it would fall to the
ground. 3
The supreme magistrate has only so much power as was
expressly granted to him by the members of the community,
while that which was not granted remains with the people.
An absolute power, or what is called " plenitudo potestatis,"
cannot be granted to the supreme magistrate, for to grant
this would destroy that justice without which kingdoms are
mere bands of robbers; an absolute power is not directed
1 Id. id. , viii. 2, 13. Cf. p. 357.
>> Althusius, 'Politics,' adx. 6:
"Constitutio magistratus summi est,
qua ills imperium et administrationem
regni, a corpore consociationis univer-
salis delatam suscipienti, regni membra
se ad obsequia obligant. Seu, qua
populus et magistratus summus inter
so mutuo certis legibus et constitu-
tionibus de subjectionis et imperii
forma, ao modo paciscuntur, jura-
mento ultro citroque fide data et
accepta promissave.
Pactum hoc, seu contractum man-
dati . . . cum magistratu summo ini-
tum, utramque partem contrahentium
obligare dubium non est, adeo ut
revocare ilium, vel violare neque
magistratui neque subditis concedatur. "
* Id. id. , xi. \. 15: "Itaque nullum
unquam regnum, nullavo respublioa
instituta fundataque fuit, nisi ultro
citroque habito initoque contractu,
pactisque inter subditos et futurum
eorum principem conventis, et obliga-
tione mutua statuta, quam utrique
religiose conservarent; et qua violata
potestas ilia evanesceret ao tolleretur. "
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? CHAP, n. ]
395
THE PRINCE UNDER THE LAW.
to the good of the subjects, but to a private satisfaction.
The right (that is, jus) granted to the magistrate by the
people is less than that of the people, and belongs to another
(i. e. , the people), it is not his own. 1
Althusius does not, however, set out this principle of the
contract merely as a theory. Like the author of the 'Vindiciae,'
he maintains that it could be found in almost all modern
kingdoms, whether elective or hereditary, in France, England,
Sweden, Spain, and the German Empire; and he relates it
to the form of oath taken by the princes on their accession. 2
We venture to think that we have said enough to show
that the conception of a contract between king and people
was not merely archaeological nor unimportant in the six-
teenth century. It was set out with force and clearness by
the most sober and dispassionate writers like Hooker and
Althusius, and it was clearly founded, first, on the relation of
the king to the law, second, on the conception embodied in
the coronation orders, and third, on the continuing influence
of the feudal tradition of the Middle Ages.
(5) The Eight of Eesistance and Deposition. --In discussing
the conception of the sovereignty of the community and of
the contract between ruler and people, we have already
touched upon this, but the subject is of so much importance
that we must deal with it in more detail.
We need hardly repeat the emphatic terms in which William
of Orange in his 4 Apologie' and the other documents we
have cited with regard to the revolt of the Netherlands,
1 Id. id. , xix. 7: "Tantum autem humana societas porfringit. Deindo
juris habet hie summus magi stratus. per absolutam potestatem tollitur
quantum illi a corporibus consociatis, justitia, qua sublata, regna fuerint
sou membris regni, est expresse con- latrocinia. . . . Tertio; talis potestas
cessum; ut quod non datum ipsi absoluta, non respicit utilitatem et
est, id penes populum, seu universam aalutom subditorum. aed voluptotom
privatorum. . . .
est. . . . 13. Deindo apparet ex hoc con.
9. Absoluta potestas, seu plenitudo 1 raetu, jus summo magistratui a populo
potestatis, quam vocant, summo magis- datum, esse minus populi jure et
tratui dari non potest. . . . alienum non ipsius proprium. "
10. Nam qui plenitudine potestatis * Id. id. , xix. 38-42.
utitur, repagula, quibus est obserata
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? 396
THE LATER SIXTEENTH CENTURY. [PABT IV.
declare that Philip II. had forfeited his authority, as he had
violated the agreements upon which it rested. 1
The question of the right of resistance and deposition was
raised in Scotland also, not merely as theory but as a practical
question, even earlier; and it was discussed by one of the
best known writers and scholars of that time in Europe, that
is, by George Buchanan. But behind George Buchanan there
was a greater and more powerful figure, that is, John Knox,
who not only defended the right of resistance and deposition
in principle, but did much to carry it out in fact. We must
therefore take account of some of the principles laid down,
especially by Knox in the course of that triumphant revolt
which Buchanan defends. We are not here concerned to
discuss the merits of that conflict, or the character of those
who took part in it, least of all of the Scottish nobles, the most
unscrupulous and politically incompetent representatives of
that class in Europe; but we are greatly concerned with the
formulation and development of the principles of the revolt.
And for this we must look, before George Buchanan's 'De
Jure Eegni' was published, mainly to the declarations of the
Eeformed preachers and of John Knox, as we find them in
Knox's history of the Eeformation in Scotland. (It is not
necessary for our purpose to assume that John Knox's
reports of these were always precisely accurate. )
The first statement which we should notice is that of the
Eeformed preachers to the "Congregation" in reply to the
proclamation of the queen regent, Mary of Guise, in August
1557. "In oppin audience they (i. e. , the preachers) declair
the authority of princes and magistrates to be of God. . . .
To brydill the fury and raige of princes in free kingdoms and
realms, they affirm it apperteins to the nobilitie, sworne and
borne consallouris of the same, and allswa to the Barrouns
1 William of Orange, 'Apologie'
(p. 48): "En somme par son serment
il (the prin;e) voult rju'en cas de con-
travention, nous ne lui soyons plus
obliges, nous ne lui rendions aucun
service ou obeissance. " Cf. St Alde-
gonde, 'CEuvres,' vol. vii. (p. 13*):
'' Au reste, si quelqu'un? au nom du
prince etablia au gouvernoment du
pays, allant a l'encontre des dictes
priviie`ges, il ost par le meme Caict
declare estre decheu de son gouverno-
ment et dignite? , et doibt estro de touts
tenu pour depose? . "
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? chap, n. ]
397
THE PRINCB UNDER THE LAW.
and Pepill, quhais voties and consent are to be requyret in
all great and wechty materis of the commonwealth. "1
At the meeting of the " haile nobility, barouns and broughes
in Edinburgh," in October of the same year, the preachers
were required to give their judgment on the question whether
the Eegent " ought to be suffered so tyrannouslie to impyne
above them," and John Willock and John Knox spoke for
them. The declaration of Willock is reported as follows:
"First, that, albeit magistrates be God's ordinance, having
of him power and authoritie, yith is not thir power so largelle
extended, but that it is bounded and limited by God and His
Word.
And secondarlie, that as subjects are commanded to
obey thir magistratis. so are magistratis commanded to geve
some deutie to the subjectis; so that God, by His Word, has
prescribed the office of the one and of the other.
Thirdlie, that albeit God hath appointed magistratis his
lieutennenties on earth, and has honoured thame with His
auni title, calling them Goddis, that yith he did never so
estables any, but that for just causes thei mycht have been
deprived.
Fourthlie: that in deposing of princes, and those that
had bene in authoritie, God did not alwyse use his immediate
powere. . . . And hereupon concluded he, That since the
Queen Eegent denyed her cheaf deutie to the subjectis of
the Eealme, which was to minister justice unto them in-
differentlie, to preserve thair libertie from invasion of stran-
gearis, and to suffer them have Godis' Word openlie preached
among them; seeing, moreover, that the Queen Eegent was
an open and obstinat idolatress, a vehement mainteanere of
all superstition and idolatrie; and finallie that she utterly
despised the counsall and requestis of the Nobilitie, he could
see no reason why they, the born Counsalleris, Nobilitic, and
Barouns of the Eealme, that they should not justly deprive
her from all regiment and authoritie amonges tham. "2
Knox reports that he approved Willock's statement, but
adds that all this referred to the Eegent and not to Queen
1 Knox, 'History,' vol. i. pp. 410-411. ? Id. id. , vol. i. pp. 442, 443.
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? 398
[PABT IV.
THE LATER SIXTEENTH CENTURY.
Mary, and that the deposition of the Eegent should be con-
ditional upon her refusing amendment.
It was not, however, long before the question of the
authority of Queen Mary herself was raised. Knox gives an
account of a conversation between himself and the Queen in
1561. "Think ye, quod sche (i. e. , Mary), that subjectis
having power, may resist their Prince? If those princes
exceed their boundis (quod he), madam, and do against that
whairfor they should be obeyed, it is no doubt but that they
may be resisted, even by power. "1
In 1564 the General Assembly of the Church appointed
certain members to meet the Lords of the Council, and to
confer upon complaints that John Knox had spoken lightly
of the queen's authority. The proceedings are reported
mainly in the form of a dialogue between Knox and Maitland
of Lethington. The most important question raised was
that of the interpretation of Eomans xiii. Knox had dis-
tinguished between the ordinance of God and the persons
placed in authority, and maintained that subjects were not
bound to obey the prince in unlawful things, and might resist
him. "And now, my Lord " (he goes on), "to answeir to the
place of the Apposstle who affirms that such as resiste the
power, resistis the ordinance of God, I say, that the power in
that place is nocht to be understande of the unjust com-
mandiment of men; but of the just power whairwith God
has armit his magistrates and lieutenants to puniche syn and
mentene vertew. . . . Then, will ye, said Lethington, mak
subjectis to controlle thair princes and rulers? And what
harm, said the uther, soulde the Commonwealthe ressaif, gif
that the corrupt effectiounis of ignorant rulers were moderatit,
and so brydillit be the wisdome and discretion of godlie
subjectis, that these soulde do wrong nor violence to no
man. "2
Maitland appealed to the judgment of the Eeformers,
Luther, Melancthon, and others, evidently knowing only
their earlier opinions, and Knox answered, it is interesting to
observe, by citing the Apology of Magdeburg, that is, pre-
1 Id. id. , vol. ii. p. 282. >> Id. id. , vol. ii. p. 437.
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? chap, n. ]
399
THE PRPJCE UNDER THE LAW.
sumably, the Declaration of the Magdeburg Clergy, to which
we already referred. 1
These are important and unambiguous statements of the
position of Knox; he refused to admit that the prince repre-
sented the authority of God in such a sense that it was never
lawful to resist him, and maintained that it was well that he
should be restrained by the wisdom of their godly subjects.
It was some years later that George Buchanan published
bis work entitled 'De Jure Eegni apud Scotos,' and we must
observe the terms under which he vindicated the right of a
community to depose the ruler who abuses his power; and in
the first place, his careful criticism of the arguments for the
necessary submission of Christian men to rulers, however
unjust.
He represents Maitland as urging that St Paul had commanded
Christian men to pray for princes, and among them were wicked
emperors like Tiberius, Caligula, and Nero. Buchanan answers
that what St Paul commands in 1 Timothy ii. is that we
must pray for kings and other magistrates that we may live
quiet lives in godliness and honesty, and he points out that
in order to understand St Paul's meaning we must observe
the very careful terms which St Paul uses in the Epistle to
the Eomans to describe the function of the ruler. He is,
St Paul says, a "minister" to whom God has given the
sword that he may punish the wicked and protect the good;
and he quotes St Chrysostom as saying that St Paul is not
speaking of the tyrant, but of the true and lawful magistrate,
who represents the power of God on earth. It does not
follow that because wo are to pray for wicked princes we are
not to resist them, any more than because we are to pray for
robbers we are not to resist them. 2 Buchanan follows this
1 Id. id. , vol. ii. pp. 442, 453. gladius a Deo sit traditus, ut malos
Cf. p. 286 in this volume. puniat ao bonos foveat et sublevet. '
1 George Buchanan, 'De Jure 'Non, enim, de tyranno,' inquit
Regni' (p. 28): "In Epistola autem Chrysostamus,' haee a Paulo soribuntui,
ad Romanos regem etiam definit sed de vero et legitimo magistratu, qui
prope ad dialecticam subtilitatom; veri Dei vices in torris gerit; cui qui
'esse,' enim ait, 'ministrum, cui resiatit, oerte Dei ordinationi rosistit. '
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? 400
[part rV.
THE LATER SIXTEENTH CENTURY.
up by pointing out that St Paul's purpose in laying stress
upon the Divine authority of the magistrate was to correct
the anarchical tendencies of those Christian men who thought
that because they were the free sons of God they ought not
to be under any human authority, and that in the passage in
Romans xiii. St Paul was referring not to any particular
magistrate but to the function or office of the magistrate. 1
When he had thus disposed of the theological argument in
favour of non-resistance, after mentioning some cases of the
deposition of kings, he goes on to the more serious discussion
of the meaning of the authority of the community over the
king.
Maitland asks, how can the king who has become a tyrant
be called "in jus "? Buchanan answers by asking which is
the greater, the king or the law, and when Maitland admits
that it is the law, Buchanan asks which is greater, the people
or the law, and Maitland admits that it is the people, for it is
the people which is the source and author of the law. Buchanan
then concludes that, if the law is greater than the king and the
people is greater than the law, there is no difficulty about the
authority which can call the king to answer to the law. The
people is greater than the king and thus when the king gives
account to the people it is the lesser who is called to account
by the greater. 2 This brings him to the judgment to which
we have already referred, that the king is answerable in
Sed, nec statim, si pro malis princi- tentior est, ac velut reotrix et mode-
pibus est orandum, hinc colligere ratrix et oupiditatum et actionum ejus,
debemus, eorum vitia non esse puni- M. Id jam concessum est. B. Quid?
enda; non magis certe quam latronum Populi et legis nonne eadem vox est?
pro quibus etiam orare jubemur; nec M. Eadem. B. Uter potentior, popu-
si bono principi parendum est, ideo lus an lex? M. Universus opinor
malo non est rosistendum. " populus. . . . Est enim velut parens,
1 Id. id. , p. 28. certe auctor, legis, ut qui eam, ubi visum
* Id. id. (p. 33): "M. Quis enim est, condere aut abrogare potest,
tyrannum e Rege factum in jus voca- B. Igitur, cum lex sit rege, populus
bit! . . . B. Ad hanc igitur lege potentior, videndum nuno sit,
imaginem componamus Regem, legem, ad quem, regem in jus vocemus. . . .
et populum. Regis et legis eadem est B. Populus igitur rege praestantior.
vox. Uter auctoritatem habet ab M. Nec esse est. B. Si praostantior
altero? Rex ne a lege, an lex a Rege. est, etiam et major. Rex igitur cum
M. Rex a lege. . . . ad populi judicium vocatur, minor ad
(p. 34. ) B. Lex igitur rege po- majorem in jus vocatur. "
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? CHAP. II. ]
401
THE PRINCE UNDER THE LAW.
private cases to the courts, and this must be much more true
in greater matters. 1
When we turn to the Huguenot writers, we find they are
equally clear about the right of resistance to and deposition
of the unrighteous king. Hotman, the ' Droit des Magistrats,'
and the 'Vindiciae ' all appeal to the precedents of the earlier
periods of the French kingdom as showing that the national
council or Estates had the right of deposing evil kings. 2 They
also cite more recent examples, the 'Droit des Magistrats'
and the 'Vindiciae,' the depositions of the Emperors Adolf
and Wenceslas and the recent depositions of the King of
Denmark and of Mary, Queen of Scots,3 and the 'Vindiciae'
also refers to the depositions of Edward II. of England and
of Eric of Sweden. 4 We have already pointed out that the
'Droit des Magistrats' compares the position of the king
who holds of the sovereignty with that of a feudal lord, who
will lose his fief if he commits "Felonie " against his vassals,
that is, his subjects. 5 The Catholics had held that the Church
is above the Pope and can depose him for heresy, and the
people has the same authority over the king who has mani-
festly become a tyrant, says the 'Droit des Magistrats' ;8
while the 'Vindiciae' maintains that the people is absolved
from its obedience to the king if he has violated his "con-
tract," the " people " is greater than the king, and can depose
the tyrant. 7
We have already referred to Boucher, as a representative
of the Catholic League in France, as maintaining the right of
the community to depose the king who violates that contract
with the people upon which his authority depends, and we
need only here refer to his detailed discussion of the right to
1 Id. id. (p. 36): "B. Nunc, tu
velim consideres, quam non modo
sit abeurdum, sed etiam iniquum,
de praedicto, de luminibus, de stilli-
cidiie adversus regem judicium dari;
parricidii, veneficii, perdeullionis, nul-
lum esse judicium: in minoribus rebus
severitate juris uti, in maximis flagitiis
summam licentiam et impunitatem
permitti. " Cf. p. 350.
VOL. VI.
* Hotman, ' Franco Gallia ' (p. 655);
'Droit des Magistrats ' (p. 86); 'Vin-
diciae contra Tyrannos ' (p. 201).
>> 'Droit des Magistrats' (pp. 760
and 765); 'Vindiciae," Q. III. (p. 203).
4 'Vindiciae,' id. id.
? 'Droit des Magistrats' (p. 78).
Cf. p. 374.
1 Id. (p. 79).
7 'Vindiciae,' Q. HI. 3 (pp. 160-169).
2C
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? 402
THE LATER SIXTEENTH CENTURY. [PART IV.
depose the tyrant. He cites St Thomas Aquinas (' De Eeg. '
I. 6) as holding that it is lawful for a people to depose the
unjust king if it belongs to them to appoint him, and this is
followed by a detailed discussion of the question whether
and under what circumstances it is lawful to kill the tyrant. 1
We have already dealt with some aspects of Mariana's
theory of the state and government, and we need only recall
that, while he is a strong supporter of monarchy, he thinks
of laws as having been made to restrain the king, and that
these laws have been made by the community from whom
the king receives his authority.
lie therefore maintains that inasmuch as the authority of
the king is derived from the commonwealth, the king can be
compelled to give account to the law, and, if he will not amend,
he may be deposed; for the community, when it bestowed
power on a king, kept the greater power in its own hands. 2
This is Mariana's general principle, and he goes on to con-
sider how the authority of the community over the prince is
to be exercised. He is in this chapter discussing and defend-
ing the revolt against Henry III. of France and his assassina-
tion. He defends tyrannicide as lawful, but it should bo
observed he makes a careful distinction between the tyrant
who has usurped power and the lawful king who has become
a tyrant by abusing his power. All philosophers and theo-
logians, he says, are agreed that the usurper may be slain by
anyone. 3 It is different, however, in the case of a prince,
who holds his power by the consent of the people, or by
hereditary right. His private vices must be tolerated,
but, if he injures the commonwealth, lays his hands upon
public and private wealth, treats the public laws and
religion with contempt, there must be no hesitation. At the
same time the nature of the action against the prince must
be carefully considered, lest evil should be added to evil.
1 J. Boucher, 'IV justa Abdica-
tione,' III. 13-19.
* Mariana, 'De Rege,' I. 6 (p. 57):
"Certe a republics unde ortum habet
regia potestas, rebus exigentibus,
regem in jus vocari posse, et si sonita-
tem respuat, principatu spoliari, neque
it a in principem jura potest at is trans-
tulit, ut non sibi majorem reservavit
potestatem. "
1 Id. id. , I. 6 (p. 58).
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? CHAP. II. ]
403
THE PRINCE UNDER THE LAW.
The best and safest course is that a public assembly should
meet and consider what is to be done; the prince should
first be admonished, and if he will correct his former faults,
he should be re-established. If, however, he will not do this,
the commonwealth may deprive him of his authority, may
declare him a public enemy, may make war upon him and
slay him; and it will be lawful for any private person to
execute this sentence. 1
If, however, it is not possible to hold a public assembly,
and the commonwealth is oppressed by the tyranny of the
prince, and yet men desire to destroy the tyranny and to
punish the manifest and intolerable crimes of the prince, the
man who follows the public wishes and endeavours to destroy
him is not, in Mariana's judgment, to be condemned. He does
not think that there is much danger that many will follow
this example; and he does not mean that the decision with
regard to such action should be left to any single and private
person; if the public voice cannot be expressed, learned and
grave men should be consulted. 2
1 Id. id. , I. 6 (p. 59): "Nam si
princeps populi consensu aut jure
hereditario imperium tenet, ejus vitia
et libidines ferendae sunt eatenus,
quoad eas leges honestatis et pudicitiae,
quibus est astrictus, negligat. . . . Si
vero rempublicam pessumdat, publicas
privatasque fortunes praedae habet,
leges publicas et sacrosanetam reli-
gionem contemptui: virtutem in
superbia ponit in audacia atque
advenms superos impietate, dissimu-
landum non est. Attente tamen eogi-
tandum quae ratio ejus principis
oneri debeat, ne malum
cumuletur, soelus vindicetur
Atque ea expedia maxima
et tuta via est, si publici conventus
facultas detur, communi consensu quid
?
? 394
[past rv.
THE LATER SIXTEENTH CENTURY.
it painted out before their eyes, even by the very solemnities
and rites of their inauguration, to what affairs by the said law
their supreme authority and power reacheth. " 1
We turn again to Althusius; for he states the principles of
a contract between the prince and the community from whom
he draws his authority, very precisely and emphatically.
By the establishment of the supreme magistrate the members
of the kingdom bind themselves to obedience to him, for he
receives from the community the rule (imperium) of the
kingdom, but the people and the supreme magistrate enter
into an agreement with each other with regard to certain
laws and conditions to which they bind themselves by an
oath; and this cannot be recalled or violated either by the
magistrates or the subjects. 2
And again, in terms both general and emphatic, Althusius
declares that no kingdom or commonwealth was ever created
without a contract between the subjects and the prince,
which was to be kept religiously by both, and that if this were
violated, all the authority founded upon it would fall to the
ground. 3
The supreme magistrate has only so much power as was
expressly granted to him by the members of the community,
while that which was not granted remains with the people.
An absolute power, or what is called " plenitudo potestatis,"
cannot be granted to the supreme magistrate, for to grant
this would destroy that justice without which kingdoms are
mere bands of robbers; an absolute power is not directed
1 Id. id. , viii. 2, 13. Cf. p. 357.
>> Althusius, 'Politics,' adx. 6:
"Constitutio magistratus summi est,
qua ills imperium et administrationem
regni, a corpore consociationis univer-
salis delatam suscipienti, regni membra
se ad obsequia obligant. Seu, qua
populus et magistratus summus inter
so mutuo certis legibus et constitu-
tionibus de subjectionis et imperii
forma, ao modo paciscuntur, jura-
mento ultro citroque fide data et
accepta promissave.
Pactum hoc, seu contractum man-
dati . . . cum magistratu summo ini-
tum, utramque partem contrahentium
obligare dubium non est, adeo ut
revocare ilium, vel violare neque
magistratui neque subditis concedatur. "
* Id. id. , xi. \. 15: "Itaque nullum
unquam regnum, nullavo respublioa
instituta fundataque fuit, nisi ultro
citroque habito initoque contractu,
pactisque inter subditos et futurum
eorum principem conventis, et obliga-
tione mutua statuta, quam utrique
religiose conservarent; et qua violata
potestas ilia evanesceret ao tolleretur. "
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? CHAP, n. ]
395
THE PRINCE UNDER THE LAW.
to the good of the subjects, but to a private satisfaction.
The right (that is, jus) granted to the magistrate by the
people is less than that of the people, and belongs to another
(i. e. , the people), it is not his own. 1
Althusius does not, however, set out this principle of the
contract merely as a theory. Like the author of the 'Vindiciae,'
he maintains that it could be found in almost all modern
kingdoms, whether elective or hereditary, in France, England,
Sweden, Spain, and the German Empire; and he relates it
to the form of oath taken by the princes on their accession. 2
We venture to think that we have said enough to show
that the conception of a contract between king and people
was not merely archaeological nor unimportant in the six-
teenth century. It was set out with force and clearness by
the most sober and dispassionate writers like Hooker and
Althusius, and it was clearly founded, first, on the relation of
the king to the law, second, on the conception embodied in
the coronation orders, and third, on the continuing influence
of the feudal tradition of the Middle Ages.
(5) The Eight of Eesistance and Deposition. --In discussing
the conception of the sovereignty of the community and of
the contract between ruler and people, we have already
touched upon this, but the subject is of so much importance
that we must deal with it in more detail.
We need hardly repeat the emphatic terms in which William
of Orange in his 4 Apologie' and the other documents we
have cited with regard to the revolt of the Netherlands,
1 Id. id. , xix. 7: "Tantum autem humana societas porfringit. Deindo
juris habet hie summus magi stratus. per absolutam potestatem tollitur
quantum illi a corporibus consociatis, justitia, qua sublata, regna fuerint
sou membris regni, est expresse con- latrocinia. . . . Tertio; talis potestas
cessum; ut quod non datum ipsi absoluta, non respicit utilitatem et
est, id penes populum, seu universam aalutom subditorum. aed voluptotom
privatorum. . . .
est. . . . 13. Deindo apparet ex hoc con.
9. Absoluta potestas, seu plenitudo 1 raetu, jus summo magistratui a populo
potestatis, quam vocant, summo magis- datum, esse minus populi jure et
tratui dari non potest. . . . alienum non ipsius proprium. "
10. Nam qui plenitudine potestatis * Id. id. , xix. 38-42.
utitur, repagula, quibus est obserata
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? 396
THE LATER SIXTEENTH CENTURY. [PABT IV.
declare that Philip II. had forfeited his authority, as he had
violated the agreements upon which it rested. 1
The question of the right of resistance and deposition was
raised in Scotland also, not merely as theory but as a practical
question, even earlier; and it was discussed by one of the
best known writers and scholars of that time in Europe, that
is, by George Buchanan. But behind George Buchanan there
was a greater and more powerful figure, that is, John Knox,
who not only defended the right of resistance and deposition
in principle, but did much to carry it out in fact. We must
therefore take account of some of the principles laid down,
especially by Knox in the course of that triumphant revolt
which Buchanan defends. We are not here concerned to
discuss the merits of that conflict, or the character of those
who took part in it, least of all of the Scottish nobles, the most
unscrupulous and politically incompetent representatives of
that class in Europe; but we are greatly concerned with the
formulation and development of the principles of the revolt.
And for this we must look, before George Buchanan's 'De
Jure Eegni' was published, mainly to the declarations of the
Eeformed preachers and of John Knox, as we find them in
Knox's history of the Eeformation in Scotland. (It is not
necessary for our purpose to assume that John Knox's
reports of these were always precisely accurate. )
The first statement which we should notice is that of the
Eeformed preachers to the "Congregation" in reply to the
proclamation of the queen regent, Mary of Guise, in August
1557. "In oppin audience they (i. e. , the preachers) declair
the authority of princes and magistrates to be of God. . . .
To brydill the fury and raige of princes in free kingdoms and
realms, they affirm it apperteins to the nobilitie, sworne and
borne consallouris of the same, and allswa to the Barrouns
1 William of Orange, 'Apologie'
(p. 48): "En somme par son serment
il (the prin;e) voult rju'en cas de con-
travention, nous ne lui soyons plus
obliges, nous ne lui rendions aucun
service ou obeissance. " Cf. St Alde-
gonde, 'CEuvres,' vol. vii. (p. 13*):
'' Au reste, si quelqu'un? au nom du
prince etablia au gouvernoment du
pays, allant a l'encontre des dictes
priviie`ges, il ost par le meme Caict
declare estre decheu de son gouverno-
ment et dignite? , et doibt estro de touts
tenu pour depose? . "
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? chap, n. ]
397
THE PRINCB UNDER THE LAW.
and Pepill, quhais voties and consent are to be requyret in
all great and wechty materis of the commonwealth. "1
At the meeting of the " haile nobility, barouns and broughes
in Edinburgh," in October of the same year, the preachers
were required to give their judgment on the question whether
the Eegent " ought to be suffered so tyrannouslie to impyne
above them," and John Willock and John Knox spoke for
them. The declaration of Willock is reported as follows:
"First, that, albeit magistrates be God's ordinance, having
of him power and authoritie, yith is not thir power so largelle
extended, but that it is bounded and limited by God and His
Word.
And secondarlie, that as subjects are commanded to
obey thir magistratis. so are magistratis commanded to geve
some deutie to the subjectis; so that God, by His Word, has
prescribed the office of the one and of the other.
Thirdlie, that albeit God hath appointed magistratis his
lieutennenties on earth, and has honoured thame with His
auni title, calling them Goddis, that yith he did never so
estables any, but that for just causes thei mycht have been
deprived.
Fourthlie: that in deposing of princes, and those that
had bene in authoritie, God did not alwyse use his immediate
powere. . . . And hereupon concluded he, That since the
Queen Eegent denyed her cheaf deutie to the subjectis of
the Eealme, which was to minister justice unto them in-
differentlie, to preserve thair libertie from invasion of stran-
gearis, and to suffer them have Godis' Word openlie preached
among them; seeing, moreover, that the Queen Eegent was
an open and obstinat idolatress, a vehement mainteanere of
all superstition and idolatrie; and finallie that she utterly
despised the counsall and requestis of the Nobilitie, he could
see no reason why they, the born Counsalleris, Nobilitic, and
Barouns of the Eealme, that they should not justly deprive
her from all regiment and authoritie amonges tham. "2
Knox reports that he approved Willock's statement, but
adds that all this referred to the Eegent and not to Queen
1 Knox, 'History,' vol. i. pp. 410-411. ? Id. id. , vol. i. pp. 442, 443.
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? 398
[PABT IV.
THE LATER SIXTEENTH CENTURY.
Mary, and that the deposition of the Eegent should be con-
ditional upon her refusing amendment.
It was not, however, long before the question of the
authority of Queen Mary herself was raised. Knox gives an
account of a conversation between himself and the Queen in
1561. "Think ye, quod sche (i. e. , Mary), that subjectis
having power, may resist their Prince? If those princes
exceed their boundis (quod he), madam, and do against that
whairfor they should be obeyed, it is no doubt but that they
may be resisted, even by power. "1
In 1564 the General Assembly of the Church appointed
certain members to meet the Lords of the Council, and to
confer upon complaints that John Knox had spoken lightly
of the queen's authority. The proceedings are reported
mainly in the form of a dialogue between Knox and Maitland
of Lethington. The most important question raised was
that of the interpretation of Eomans xiii. Knox had dis-
tinguished between the ordinance of God and the persons
placed in authority, and maintained that subjects were not
bound to obey the prince in unlawful things, and might resist
him. "And now, my Lord " (he goes on), "to answeir to the
place of the Apposstle who affirms that such as resiste the
power, resistis the ordinance of God, I say, that the power in
that place is nocht to be understande of the unjust com-
mandiment of men; but of the just power whairwith God
has armit his magistrates and lieutenants to puniche syn and
mentene vertew. . . . Then, will ye, said Lethington, mak
subjectis to controlle thair princes and rulers? And what
harm, said the uther, soulde the Commonwealthe ressaif, gif
that the corrupt effectiounis of ignorant rulers were moderatit,
and so brydillit be the wisdome and discretion of godlie
subjectis, that these soulde do wrong nor violence to no
man. "2
Maitland appealed to the judgment of the Eeformers,
Luther, Melancthon, and others, evidently knowing only
their earlier opinions, and Knox answered, it is interesting to
observe, by citing the Apology of Magdeburg, that is, pre-
1 Id. id. , vol. ii. p. 282. >> Id. id. , vol. ii. p. 437.
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? chap, n. ]
399
THE PRPJCE UNDER THE LAW.
sumably, the Declaration of the Magdeburg Clergy, to which
we already referred. 1
These are important and unambiguous statements of the
position of Knox; he refused to admit that the prince repre-
sented the authority of God in such a sense that it was never
lawful to resist him, and maintained that it was well that he
should be restrained by the wisdom of their godly subjects.
It was some years later that George Buchanan published
bis work entitled 'De Jure Eegni apud Scotos,' and we must
observe the terms under which he vindicated the right of a
community to depose the ruler who abuses his power; and in
the first place, his careful criticism of the arguments for the
necessary submission of Christian men to rulers, however
unjust.
He represents Maitland as urging that St Paul had commanded
Christian men to pray for princes, and among them were wicked
emperors like Tiberius, Caligula, and Nero. Buchanan answers
that what St Paul commands in 1 Timothy ii. is that we
must pray for kings and other magistrates that we may live
quiet lives in godliness and honesty, and he points out that
in order to understand St Paul's meaning we must observe
the very careful terms which St Paul uses in the Epistle to
the Eomans to describe the function of the ruler. He is,
St Paul says, a "minister" to whom God has given the
sword that he may punish the wicked and protect the good;
and he quotes St Chrysostom as saying that St Paul is not
speaking of the tyrant, but of the true and lawful magistrate,
who represents the power of God on earth. It does not
follow that because wo are to pray for wicked princes we are
not to resist them, any more than because we are to pray for
robbers we are not to resist them. 2 Buchanan follows this
1 Id. id. , vol. ii. pp. 442, 453. gladius a Deo sit traditus, ut malos
Cf. p. 286 in this volume. puniat ao bonos foveat et sublevet. '
1 George Buchanan, 'De Jure 'Non, enim, de tyranno,' inquit
Regni' (p. 28): "In Epistola autem Chrysostamus,' haee a Paulo soribuntui,
ad Romanos regem etiam definit sed de vero et legitimo magistratu, qui
prope ad dialecticam subtilitatom; veri Dei vices in torris gerit; cui qui
'esse,' enim ait, 'ministrum, cui resiatit, oerte Dei ordinationi rosistit. '
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? 400
[part rV.
THE LATER SIXTEENTH CENTURY.
up by pointing out that St Paul's purpose in laying stress
upon the Divine authority of the magistrate was to correct
the anarchical tendencies of those Christian men who thought
that because they were the free sons of God they ought not
to be under any human authority, and that in the passage in
Romans xiii. St Paul was referring not to any particular
magistrate but to the function or office of the magistrate. 1
When he had thus disposed of the theological argument in
favour of non-resistance, after mentioning some cases of the
deposition of kings, he goes on to the more serious discussion
of the meaning of the authority of the community over the
king.
Maitland asks, how can the king who has become a tyrant
be called "in jus "? Buchanan answers by asking which is
the greater, the king or the law, and when Maitland admits
that it is the law, Buchanan asks which is greater, the people
or the law, and Maitland admits that it is the people, for it is
the people which is the source and author of the law. Buchanan
then concludes that, if the law is greater than the king and the
people is greater than the law, there is no difficulty about the
authority which can call the king to answer to the law. The
people is greater than the king and thus when the king gives
account to the people it is the lesser who is called to account
by the greater. 2 This brings him to the judgment to which
we have already referred, that the king is answerable in
Sed, nec statim, si pro malis princi- tentior est, ac velut reotrix et mode-
pibus est orandum, hinc colligere ratrix et oupiditatum et actionum ejus,
debemus, eorum vitia non esse puni- M. Id jam concessum est. B. Quid?
enda; non magis certe quam latronum Populi et legis nonne eadem vox est?
pro quibus etiam orare jubemur; nec M. Eadem. B. Uter potentior, popu-
si bono principi parendum est, ideo lus an lex? M. Universus opinor
malo non est rosistendum. " populus. . . . Est enim velut parens,
1 Id. id. , p. 28. certe auctor, legis, ut qui eam, ubi visum
* Id. id. (p. 33): "M. Quis enim est, condere aut abrogare potest,
tyrannum e Rege factum in jus voca- B. Igitur, cum lex sit rege, populus
bit! . . . B. Ad hanc igitur lege potentior, videndum nuno sit,
imaginem componamus Regem, legem, ad quem, regem in jus vocemus. . . .
et populum. Regis et legis eadem est B. Populus igitur rege praestantior.
vox. Uter auctoritatem habet ab M. Nec esse est. B. Si praostantior
altero? Rex ne a lege, an lex a Rege. est, etiam et major. Rex igitur cum
M. Rex a lege. . . . ad populi judicium vocatur, minor ad
(p. 34. ) B. Lex igitur rege po- majorem in jus vocatur. "
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? CHAP. II. ]
401
THE PRINCE UNDER THE LAW.
private cases to the courts, and this must be much more true
in greater matters. 1
When we turn to the Huguenot writers, we find they are
equally clear about the right of resistance to and deposition
of the unrighteous king. Hotman, the ' Droit des Magistrats,'
and the 'Vindiciae ' all appeal to the precedents of the earlier
periods of the French kingdom as showing that the national
council or Estates had the right of deposing evil kings. 2 They
also cite more recent examples, the 'Droit des Magistrats'
and the 'Vindiciae,' the depositions of the Emperors Adolf
and Wenceslas and the recent depositions of the King of
Denmark and of Mary, Queen of Scots,3 and the 'Vindiciae'
also refers to the depositions of Edward II. of England and
of Eric of Sweden. 4 We have already pointed out that the
'Droit des Magistrats' compares the position of the king
who holds of the sovereignty with that of a feudal lord, who
will lose his fief if he commits "Felonie " against his vassals,
that is, his subjects. 5 The Catholics had held that the Church
is above the Pope and can depose him for heresy, and the
people has the same authority over the king who has mani-
festly become a tyrant, says the 'Droit des Magistrats' ;8
while the 'Vindiciae' maintains that the people is absolved
from its obedience to the king if he has violated his "con-
tract," the " people " is greater than the king, and can depose
the tyrant. 7
We have already referred to Boucher, as a representative
of the Catholic League in France, as maintaining the right of
the community to depose the king who violates that contract
with the people upon which his authority depends, and we
need only here refer to his detailed discussion of the right to
1 Id. id. (p. 36): "B. Nunc, tu
velim consideres, quam non modo
sit abeurdum, sed etiam iniquum,
de praedicto, de luminibus, de stilli-
cidiie adversus regem judicium dari;
parricidii, veneficii, perdeullionis, nul-
lum esse judicium: in minoribus rebus
severitate juris uti, in maximis flagitiis
summam licentiam et impunitatem
permitti. " Cf. p. 350.
VOL. VI.
* Hotman, ' Franco Gallia ' (p. 655);
'Droit des Magistrats ' (p. 86); 'Vin-
diciae contra Tyrannos ' (p. 201).
>> 'Droit des Magistrats' (pp. 760
and 765); 'Vindiciae," Q. III. (p. 203).
4 'Vindiciae,' id. id.
? 'Droit des Magistrats' (p. 78).
Cf. p. 374.
1 Id. (p. 79).
7 'Vindiciae,' Q. HI. 3 (pp. 160-169).
2C
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? 402
THE LATER SIXTEENTH CENTURY. [PART IV.
depose the tyrant. He cites St Thomas Aquinas (' De Eeg. '
I. 6) as holding that it is lawful for a people to depose the
unjust king if it belongs to them to appoint him, and this is
followed by a detailed discussion of the question whether
and under what circumstances it is lawful to kill the tyrant. 1
We have already dealt with some aspects of Mariana's
theory of the state and government, and we need only recall
that, while he is a strong supporter of monarchy, he thinks
of laws as having been made to restrain the king, and that
these laws have been made by the community from whom
the king receives his authority.
lie therefore maintains that inasmuch as the authority of
the king is derived from the commonwealth, the king can be
compelled to give account to the law, and, if he will not amend,
he may be deposed; for the community, when it bestowed
power on a king, kept the greater power in its own hands. 2
This is Mariana's general principle, and he goes on to con-
sider how the authority of the community over the prince is
to be exercised. He is in this chapter discussing and defend-
ing the revolt against Henry III. of France and his assassina-
tion. He defends tyrannicide as lawful, but it should bo
observed he makes a careful distinction between the tyrant
who has usurped power and the lawful king who has become
a tyrant by abusing his power. All philosophers and theo-
logians, he says, are agreed that the usurper may be slain by
anyone. 3 It is different, however, in the case of a prince,
who holds his power by the consent of the people, or by
hereditary right. His private vices must be tolerated,
but, if he injures the commonwealth, lays his hands upon
public and private wealth, treats the public laws and
religion with contempt, there must be no hesitation. At the
same time the nature of the action against the prince must
be carefully considered, lest evil should be added to evil.
1 J. Boucher, 'IV justa Abdica-
tione,' III. 13-19.
* Mariana, 'De Rege,' I. 6 (p. 57):
"Certe a republics unde ortum habet
regia potestas, rebus exigentibus,
regem in jus vocari posse, et si sonita-
tem respuat, principatu spoliari, neque
it a in principem jura potest at is trans-
tulit, ut non sibi majorem reservavit
potestatem. "
1 Id. id. , I. 6 (p. 58).
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? CHAP. II. ]
403
THE PRINCE UNDER THE LAW.
The best and safest course is that a public assembly should
meet and consider what is to be done; the prince should
first be admonished, and if he will correct his former faults,
he should be re-established. If, however, he will not do this,
the commonwealth may deprive him of his authority, may
declare him a public enemy, may make war upon him and
slay him; and it will be lawful for any private person to
execute this sentence. 1
If, however, it is not possible to hold a public assembly,
and the commonwealth is oppressed by the tyranny of the
prince, and yet men desire to destroy the tyranny and to
punish the manifest and intolerable crimes of the prince, the
man who follows the public wishes and endeavours to destroy
him is not, in Mariana's judgment, to be condemned. He does
not think that there is much danger that many will follow
this example; and he does not mean that the decision with
regard to such action should be left to any single and private
person; if the public voice cannot be expressed, learned and
grave men should be consulted. 2
1 Id. id. , I. 6 (p. 59): "Nam si
princeps populi consensu aut jure
hereditario imperium tenet, ejus vitia
et libidines ferendae sunt eatenus,
quoad eas leges honestatis et pudicitiae,
quibus est astrictus, negligat. . . . Si
vero rempublicam pessumdat, publicas
privatasque fortunes praedae habet,
leges publicas et sacrosanetam reli-
gionem contemptui: virtutem in
superbia ponit in audacia atque
advenms superos impietate, dissimu-
landum non est. Attente tamen eogi-
tandum quae ratio ejus principis
oneri debeat, ne malum
cumuletur, soelus vindicetur
Atque ea expedia maxima
et tuta via est, si publici conventus
facultas detur, communi consensu quid
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