Dialogue on the Power of the Pope and the Emperor
By William of Ockham
[William of Ockham. Dialogus de potestate papae et imperatoris. In the Public Domain. Translated by Kevin Gallagher. Princeton, N.J.: The Witherspoon Institute. 2010. Part 3, Tractate 2, Book 3, Chapter 6. Citiations from the Decretum Gratiani have been modified to correspond with modern editions.]
Tell me how to respond to an argument that I have heard: that it is neither by divine law nor by human law that the Romans have the right to elect the supreme pontiff.
The response to that argument is that the Romans have the right to elect the supreme pontiff by divine law, if we extend our understanding of divine law to include all natural law.
This response seems unclear to me, and so I’d like you to elaborate on it according to your account of the matter. First, explain why you said “if we extend our understanding of divine law to include all natural law”; second, explain why all natural law can be called divine law.
First, one must distinguish among three meanings of natural law. For in one sense, natural law means that which is in conformity with natural reason, which is never in error: such as “Thou shalt not commit adultery,” “Do not lie,” and so on.
In another sense, natural law is that which is observed by those who observe only natural justice [aequitate naturali], without any human customs or constitutions. This is called natural law, because it is not contrary to the state of nature as originally established [statum nature institute]. And if all men lived according to natural reason or divine law, it would not be followed or observed.
It is in the second sense of natural law, not the first sense, that all possessions are held in common by natural law, because in the state of nature as originally established, everything would have been held in common. And if all men lived according to reason after the Fall, all things would need to be common, and there could be no property. For “property was introduced on account of iniquity” (Decretum C. 12 q. 1 c. 2). It is in this sense that Isidore speaks in the 5th book of the Etymologies, (quoted in Decretum D. 1 c. 7), where he says that “the common possession of all things and the liberty of all” are according to the natural law. For the common possession of all things and the liberty of all are not based on natural law in the first sense. For if they were, no one could legitimately make anything his property, nor could anyone become a slave by the law of nations or the civil law, because natural law in the first sense is unchangeable and invariable and does not admit of exceptions (Decretum D. 5 prima pars Gratiani para. 2, and D. 6 Gratianus post c. 3). And so it is that some men are legitimately made slaves by the law of nations, as is suggested by the Blessed Gregory, who says (Decretum C. 12 q. 12 c. 68) “it is well done, if men who in the beginning were produced free by nature, and whom the law of nations subjected to the yoke of slavery, are returned to the nature in which they were born, by the good deed of the one who sets them free.” From these words it can be deduced that all men are free by the natural law, but some however are slaves by the law of nations. Hence we conclude that the natural law, in this second sense, is not unchangeable; indeed it would be correct to establish the contrary to this law.
In the third sense, natural law refers to that which may be deduced by evident reason from the law of nations or from some human action, unless the contrary should be ordained by those to whom the matter pertains. This is called natural law by supposition [ius naturale ex suppositione]. As Isidore says in the passage cited above, the natural law has to do with “the return of entrusted things or loans of money, and the resistance of violence by force.” Now these are not natural laws in the first or second senses, because they were not in the state of nature as originally established, and they are not among those laws that would be agreed upon by men living according to reason and judging by natural justice without any human custom or statue. For among such men, nothing would be entrusted or lent, and no one would attack anyone by force. These, then, are natural laws by supposition, because, on the supposition that things or money have been made private property by the law of nations or by some human law, it may be deduced by evident reason that the entrusted things or money ought to be returned, unless the contrary is commanded by him or them to whom the matter pertains. Likewise, supposing that someone in fact injures another by violence—which is not in accordance with natural law, but contrary to it—then it can be deduced by evident reason that is permissible to repel violence with force.
And so, on account of these three senses of natural law, they say that by divine law the Romans have the right to elect the supreme pontiff, if we extend divine law to include all natural law. For if it were only extended to include natural law in the first sense (as is held in Decretum D. 5 prima pars Gratiani para. 2, and D. 6 Gratianus post c. 3), then by divine law alone, they would not have the right to elect the supreme pontiff.
Since I have not heard this distinction regarding natural law elsewhere, I’d like to object to it, so that from the solution to the objections to this account I might understand more, and grasp something of the truth.
Now this distinction seems to contradict the words of Isidore from the chapter cited above. Isidore says “the natural law is common to all nations, because it prevails everywhere in the state of nature, and not by any ordinance.” This cannot agree with the second sense that you distinguished, because those things whose contraries can be permitted according to the law of nations are not common to all nations, nor are they accepted everywhere in the state of nature, because they are not accepted where the contrary is observed according to the law of nations.
Again, when Isidore says “this, or whatever is similar to this, is never unjust, but is recognized as natural and fair,” this can be true of neither the second nor the third sense that you distinguished. For all that is called natural law in the second sense can be unjust, because its contrary can be according to the law of nations, and what is contrary to the law of nations is to be condemned as unjust. And that which is called natural law in the third sense can be unjust, because its contrary can be according to the natural law in the second sense. According to that second sense of natural law, no money is lent and no goods are entrusted to another. For if we take natural law in that second sense, all things are held in common, and no money or goods can be lent or entrusted to another. These are the reasons why I challenge the above distinction; now tell me how to respond to them.
To these two objections, one response is that certain words in [Isidore’s] way of speaking about natural law ought to be understood only of natural law in the first sense, and some in other senses. The words you object to, then, ought to be understood of natural law in the first sense, and so they do not seem to conclude against what was said earlier.
It can also be responded that those words to which you object are understood of all natural law. And so they ought to be understood. Therefore when Isidore says “The natural law is common to all nations,” because all nations are bound by it without exception, this is a law of reason, which is never in error, in the state of nature. Now this law is held to be natural law in the second sense because it is “common to all nations,” since all nations are held to it unless the contrary is ordained on some reasonable cause, and therefore it is of the state of nature—that is, of natural reason—before the contrary is established by human legislation. For in this sense was it said that all things are common, before they are made private property by the consent of men. And natural law in the third sense was said to be “common to all nations” on the supposition that all nations have established or done that from which the law, in that sense, may be deduced by evident reason. And so in the state of nature this is accepted as a matter of natural reason, supposing that it is understood in that sense.
Likewise, it can be responded about the quotation you mentioned second (“this, or whatever is similar to this, is never unjust, but is recognized as natural and fair”), that it is to be understood that natural law in the second sense is “never unjust,” because it “is recognized as natural and fair” unless the contrary should be enacted by a human law on some reasonable cause. Furthermore, natural law in the third sense is, in a certain sense, “never unjust,” but is always “recognized as natural and fair,” because the supposition from which it is deduced by evident reason is “never unjust, but is recognized as natural and fair,” unless the contrary should be ordained by him or them to whom the matter pertains.
It seems that this explanation is misleading, since if we accept it, this word mentioned only once in the above quotation from Isidore must be taken equivocally [i.e. in several senses at once].
This should not be thought of as misleading, because the gloss on Decretum D. 63 c. 12 makes a note of this, saying “note how a word mentioned only once is here used equivocally.” So also Decretum D. 28 c. 16.
You have stated that according to the account laid out previously, it is said that the Romans to have the right to elect the supreme pontiff by divine law, if we extend divine law to include all natural law. Now tell me, according to the same account, why it is said that all natural law can be called divine law.
They say this because all law that is from God, who is the author of nature, can be called divine law. Now all natural law is from God, who is the author of nature, therefore natural law can be called divine law. Now all law which explicitly or implicitly is contained in the holy scriptures can be called divine law, because divine law is contained in the scriptures, as is held at Decretum D. 8 c. 1. Now all natural law is explicitly or implicitly contained in the holy scriptures, because there are certain general rules in the holy scriptures from which, by themselves or in combination with other rules, the natural law can be derived. For all natural law in the first, second, or third sense, even if it cannot be found in the scriptures, is explicitly divine law.
You have explained, according to the original account, two things which seemed unclear. Now tell me how, according to the same account, they have, by divine law, the right to elect the supreme pontiff.
To this, the response is that the Romans have the right to elect the supreme pontiff by natural law in the third sense. For supposing that some prelate or prince or ruler is to be placed over some other people, it can be deduced by evident reason that, if it is not arranged by him or them to whom it pertains to do so, they have the right to elect the one who is to be placed over them. And therefore no one ought to be given to them against their will. This can be proved by many examples and reasons; I will adduce a few.
The first is that no one ought to be placed over all mortals unless by their choice and consent. Furthermore, what affects everyone ought to be dealt with by everyone. Now it affects everyone that one should be set over others; therefore it ought to be dealt with by everyone. Again, those who have the right to make laws for themselves have the right, if they wish, to elect a chief. But every people and city can make its own law for itself, which is called civil law (Decretum D. 1 c.8). Therefore both peoples and cities can make their own law for themselves and elect a chief.
And so it always pertains to those over whom someone is to be placed to elect the one who is to be placed over them, unless it be arranged otherwise by him or them to whom it pertains to do so. This is said because they can, at least in many cases, relinquish their right and transfer it to another or to others. Therefore even though, by natural law in the third or second sense, the people have the right to establish laws, nevertheless they transferred that power to an emperor, and so it was in the emperor’s power to transfer the right of election to another or to others. Likewise, if those over whom someone is to be placed are in such matters subject to some superior, that superior can decree that they not have the right of election; though by the natural law in the second sense they indeed have the right of election—that is, unless the contrary should be ordained by them themselves or by their superior. And so it seems that the proposition mentioned above is clearly sound.
But the supreme pontiff is placed over the Romans in a special way, because they do not have any other bishop. Therefore, according to the natural law in the third sense (that is, according to the natural law by supposition: namely, the supposition that they ought to have a bishop), they themselves have the right to choose that bishop, unless the Romans themselves, or someone set over the Romans who has power in such matters, enact or command the contrary. For the Romans themselves could to cede or transfer the right of electing the supreme pontiff to another or others; they could also transfer the right of appointing the electors of the supreme pontiff. A superior over the Romans who had authority in such matters could even concede the right of election to other people than the Romans. But this superior was Christ, and not the pope. And therefore Christ, and not the pope, was able to deprive the Romans of the right of electing the supreme pontiff. But Christ did not deprive the Romans of that right. For when Christ set St. Peter over all Christians, he gave him the power to choose a seat wherever he wished, and to be in a certain way the proper bishop of the people there, he did not deprive them of that right that is common to all over whom there is a presiding authority, whether secular or ecclesiastical, unless they or their superior, should ordain the contrary. Therefore since St. Peter chose the See of Rome, it follows that the Romans have the right of electing St. Peter’s successor, who is to be placed over them in spiritual matters. And so the Romans, by the divine law (if we extend it to include every natural law), have the right of electing the supreme pontiff.
It seems, according to this view, that it would be better to say that the Romans have the right to elect their bishop by the law of nations. For it is by the law of nations that all over whom someone is to be placed have the right to choose the one who will be placed over them unless they cede that right or unless their superior ordains the contrary.
Although many things that have to do with the law of nations are natural laws in the third sense of speaking about natural law, nevertheless, according to this view it is more appropriate to say that the Romans have the right to elect their bishop by the divine law, or by the natural law in the third sense, than to say that it is by the law of nations. This is because it is not the law of nations that specifies that there should be a Catholic bishop, but this is rather a matter of divine law. Now indeed, to be preside others and to elect the one who is to preside have to do with the law of nations, but it is nonetheless also a matter of divine law, because it can be concluded by taking together what is written in the holy scriptures. And so these two considerations, from which we conclude that the Romans have the right to elect their bishop, both have to do with the divine law, although in different ways. Now only one of them has to do with the law of nations, and because of this it is more appropriate to say that the Romans have the right to elect their bishop by the divine law, or by natural law in the third sense, than to say that it is by the law of nations. Now those who do not care to wrangle over words say that it is enough for them that the Romans have the right to elect their bishop by divine law, simply because they ought to have a bishop, and those over whom someone is to preside ought to choose the one to preside over them, unless they cede their right, or unless their superior ordains the contrary. But whether one ought to say, properly speaking, that the Romans have the right of election by the divine law, or from natural law in the third sense, or rather from both the divine law and the law of nations, does not really matter to them. However, it seems to many people that it is more appropriate to say that they have the right of election both from the divine law and from the law of nations. And therefore when it is asked whether they have the right of election from divine or from human law, they say that it is neither from divine law alone, nor from human law alone, but from both, by the extension of the human law to the law of nations, and not only to the civil or canon law.
 The Latin reads “because it is contrary to the state of nature as originally established,” but the sense of the argument here strongly suggests that a negative word has dropped out of the text.
 The Decretum of Gratian is the authoritative collection of legal judgments that was the main source of canon law until 1917.
 This is a misquotation. In the Etymologies, Isidore writes that the natural law is accepted “by an instinct of nature” (instinctu naturae), not “in the state of nature” (in statu naturae).
A Short Discourse on Tyrannical Government
By William of Ockham
[William of Ockham. Breviloquium de principatu tyrannico. In the Public Domain. Translated by Kevin Gallagher. Princeton, N.J.: The Witherspoon Institute. 2010. Book 3, chapters 7 and 8.]
Chapter 7: The dominion over temporal things that is common to the whole human race, the power of making temporal things the property of a certain person or of certain persons or of a particular group, and the power of establishing those who have jurisdiction, are by the divine law.
Next we must consider by what law temporal jurisdiction and dominion over temporal things were introduced.
To better understand this, we must make a distinction about dominion. Dominion over temporal things belongs to God—this is not our subject here. But it also belongs to humans, and this can be in two ways: there is the dominion common to the whole human race, and individual dominion.
The common dominion of the whole human race is that which God gave to Adam and his wife for themselves and for all their descendants. It was the power of managing and using temporal things for their own advantage. In the state of innocence, this power did not include the power of making any temporal thing the property of one person, of a particular group, or of certain persons, but after the fall it includes such a power of appropriating temporal things.
Another kind of dominion is individual dominion, which in the study of the law, and in writings that imitate the law’s manner of speaking, is called “ownership.” This dominion is the principal power of managing temporal things, and it is appropriated to one person or to certain persons or to some particular group. This power varies; it can be greater or less.
The first dominion, the common dominion of the whole human race, existed in the state of innocence, and would have continued to exist if man had not sinned. But it did not include the power of appropriating anything to any person, except for their own use, as has been said.
For because there was no greed in them, nor any desire to possess or use any temporal thing in a way contrary to right reason, there was then no need or advantage to having ownership over any temporal thing.
After the Fall, however, greed and the desire to possess and use temporal things wrongly seethed up in men. And in order to restrain the immoderate appetite of the depraved for having temporal goods and to rectify their negligence in the due management and procurement of temporal things (for evil men collectively neglect common things), it was useful and expedient that temporal things should be made private property, and should not be held in common. After the Fall, therefore, the power of making temporal goods private property was added to the dominion that had existed in the state of innocence. But property did not exist immediately after the Fall.
Now this common dominion of the whole human race with such a power of making temporal goods private property was introduced by divine law, that is, by a special bestowal by God, to whom all things belonged and belong by right of creation as well as by right of conservation, and without whose maintenance all things would become nothing.
Now this divine law, that is, the divine bestowal, can be found in the divine scriptures.
Of the dominion given to the first humans for them and for their descendants, it says in Gen. I: Male and female he created them, and God blessed them, and said: Increase and multiply, and fill the earth and subdue it, and have dominion over the fish of the sea and the birds of the air and over all animals that move on the earth. And God said: Behold, I have given you every herb bearing seed upon the earth, and all trees that have in themselves seed of their own kind, to be your food.
And the power to make temporal things one’s property is mentioned, at least implicitly, in Ecclus. 17, where it is written: God created man of the earth, and made him after his own image. And he turned him into it again, and clothed him with strength according to himself. And afterwards: And he gave him power over all things that are on the earth, that is, he gave him the power, for himself and for his descendants, of managing the earthly things that right reason declared to be necessary, expedient, proper, or useful not only for living, but also for living well. On account of which, it continues: He gave them council, and a tongue, and eyes, and ears, and a heart to devise, which are as necessary and useful for living well whether solitarily or politically and in a perfect community.
Now the power of appropriating temporal things, both rational (such as wives and children) and otherwise, is among the things that are necessary and useful for the human race to figure out how to live well after the Fall, on account of the multitude of their negligences and follies, of which there is no number, as it says in Eccl. 1. And so Aristotle, in the second book of the Politics, rejected the policy or arrangement of Plato, who proposed that a city in which all things were common was better-arranged than one in which there was private property.
For he considered that the multitude is evil and prone to evil, and therefore things common to many are less loved, and as a consequence less cared for, than private property. For this reason, private ownership is better than common ownership, among such men.
But among a multitude of perfect men, or of men striving for perfection with all their strength, it is otherwise; for the perfect love and care for common things more than private property.
Hence we read that some Romans, even unbelievers, had much more concern for common things than for their own.
Therefore the power of making temporal things the property of a person or of persons or of a group was given by God to the human race. And for a similar reason, without any human ministry or cooperation, God gave the power of establishing rulers with temporal jurisdiction, because temporal jurisdiction is among the number of those things which are necessary and useful for living well and politically, as Solomon witnesses, when he says in Prov. 11. Where there is no governor, the people shall fall.
Chapter 8: How not only believers but also unbelievers have the aforementioned double power from God.
This double power, that of making temporal things private property and of establishing rulers with temporal jurisdiction, was directly given by God not only to believers, but even to unbelievers, in such a way that it falls under commandment, and is counted among purely moral matters, because it obliges both believers and unbelievers alike. And so, just as unbelievers are bound by the commandment of God and of the natural law to honor their father and mother, and to do other things that are necessary for their neighbors, so are they bound, in some cases, to make such an appropriation of property and to set powers above themselves in secular matters.
For because these are matters of positive commandment, which oblige always, but not in every case, unbelievers, just like believers, are not bound to them at all times, but only in a case of necessity. And so it is both unbelievers and believers can renounce this double power, outside of a case of necessity, or of advantage that can be compared to necessity. For this reason also, some, whether believers or unbelievers, can be deprived of this power for a fault or for some other reason, so that they may not be able to exercise it except in a case of necessity, and so that, if they should in fact try to exercise this power, their act would be null by the law itself. Therefore, since there is nothing in the scriptures about God depriving unbelievers of this double power which he gave to their first parents for themselves and their descendants, it follows that unbelievers, even if they remain in their unbelief, are, unless they have been judicially deprived of their legitimate power, rightly able to make use of this double power even outside of cases of necessity. And in the case of necessity, they are bound to use it, since necessity cannot fall under human commandment or law.
The Catholic Concordance
By Nicholas of Cusa
[Nicholas of Cusa. De Concordantia Catholica libri tres. In the Public Domain. Translated by Kevin Gallagher. Princeton, N.J.: The Witherspoon Institute. 2010. 2.14; 3.Preface, 4, 12, 25. Nicholas of Cusa’s citations of the Decretum Gratiani and of Aristotle have been modified to correspond with modern editions.]
Book II, ch. 14. That all legislation is based on the natural law, and that all coercion must be brought about by the choice and consent of the subjects, since we are equally free by nature, and that jurisdictions that are created have no power from themselves, but only according to the laws and canons. This is a fine argument.
So that everyone might be better satisfied, I will add another consideration. Although it deserves to be explained at some length, in the interest of brevity and of pleasing the reader I will only touch on it briefly. All legislation has its root in the natural law, and if it contradicts the natural law, it cannot be valid legislation (Decretum, D. 9 § Cum ergo [post c. 11], & D. 10 c. 4 Constitutiones). Hence, since the natural law is naturally within the reason, every law is, at its root, innate to man. And so those who are wiser and more excellent than others are chosen as rulers, so that by their natural, clear reason, endowed with wisdom and prudence, they might produce just laws, and rule others and examine cases by means of those laws, so that peace may be preserved (as is held at Decretum D. 2 c. 5 Responsa prudentum). From this it can be concluded that those who are best endowed with reason are naturally the lords and rulers of others, although not by coercive laws or judgments that are imposed on others against their will. Therefore since all men are free by nature, every government that restrains its subjects from evils and uses the fear of punishment to orient their freedom towards the good, whether it consists of written laws or of a living law in the person of the prince, is constituted only by the agreement and consent of the subjects. For if by nature men are equally powerful and equally free, then the true and well-ordered authority of one who is a fellow and equal in power can only be established by the choice and consent of others, just as laws are established by consent (Decretum D. 2 c. 1 Lex and also D. 8 c. 2 Quae contra, which says, “An agreement of each nation or city among themselves,” etc. “The general agreement of human society is that all will be governed by its kings, etc.”). Note that a human society comes together by a general agreement in order to obey its kings. So in a truly well-ordered regime there ought to be an election of the ruler himself, by which the ruler is set up as the judge of those who choose him. Well-ordered and correct lordships and honors, then, are established by election, and so also are general judges established over those who elect them.
And because these are general judges, appeals can be made from them up to the highest authority, because they were not chosen by specific consent to individually make a decision in each case. But if they were chosen by the parties involved in a particular case, their decision could not lawfully be appealed, as is set forth in the 10th canon of the African council. “Indeed, if judges have been chosen by the consent of the parties, even if by a smaller number than prescribed, their decision may not be challenged” (see Decretum C. 2 q. 6 c. 34 Sane). A judge ought to judge justly, because by the law itself a decision is null and void if it goes against the laws or canons (see Decretum X 2.27, De sententia et de re iudicata, c. 1 Sententia, with the cross-references mentioned there in the gloss).
We read that not even the Apostolic See has ever judged against the canons, as can be seen in the letter from Pope Boniface to Zachary that begins “Confitemur,” and as is mentioned in many passages below. Indeed, even the pope’s judgments must be examined again by a plenary council, as is demonstrated below from the actions and authority of Augustine. Now they would be examining those judgments in vain, if the whole of the law was whatever the Roman pontiff wanted, because then it would be impossible for him to decide wrongly. Therefore it is necessary that his judgment should be constrained by the canons to which he is subject and by which his decisions are examined, to see whether or not they are just.
Furthermore, the canons have their roots in the natural law, against which even a prince is powerless; he cannot therefore go against a canon claiming that his decision is based in natural law or follows indirectly from natural law. And since this is so, how can we say that it is in a judge’s power to set down canons and statutes? If this were so, if a judge by himself had the power of setting down canons, it could never be proven that he had decided wrongly—his decisions would always be just. But because law must be rational, possible, and not contrary to the custom of the country (Decretum D. 4 § Leges [post c. 3 In istis]), we cannot say something is a law which is not accepted by the usages of those who are to observe it in any civil or canonical court (the same Leges and the following chapters). Therefore, if usage is required for the approval of law, as in the chapter Leges, we cannot justly condemn someone based on a new law, because he could not have offended against a law that did not yet exist. It is necessary that he have violated an approved law that was accepted by custom and usage. From this it is clear that the laws and the canons are a rule for everyone who judges, and that every law and canon is superior to any judge who judges.
Still further, if a canon is approved by agreement, usage, and acceptance, then the strength of all legislation is based on acceptance. It is for this reason that ecclesiastical canons are properly issued by a common council. For the church is a congregation. A single person could not properly issue ecclesiastical canons. We can conclude from this that in councils, canons are made by agreement, acceptance, and consent, while decrees and judicial decisions of the Roman pontiffs and their clarifications of the law in new situations derive their strength and justice not from the pope’s pure will, but because the canons have allowed that such decisions are to be made. This point is worth noting. This is how I understand Decretum D. 15 c. 3 Sancta Romana §16 Item decretales, and D. 19 c. 6 In canonicis and similar canons, and I have elaborated on this further at the end of this second book, and at the beginning and the end of Book III.
Book III: Preface
If anyone cared to investigate from the beginning the foundations that are not so much useful as necessary to our undertaking, he would need to look for those first principles that have been taken as a starting point by Aristotle, Plato, Cicero, and all other authors who have written about well ordered political, economic, and monarchical regimes. Indeed, the natural laws precede all human considerations and are their principles. To every kind of animal it has first been given by nature that they are able to protect themselves, their body, and their life, to avoid what is harmful, and to acquire what is necessary, as Cicero argues in the third chapter of De Officiis. For the first thing for anything that exists is that it should in fact be able to exist. And for this purpose—that it might continue to exist—everything has innate principles: instinct, appetite, or reason. This is why various means of ensuring existence and self-preservation have been put into the instinct by nature, according to the diversity of natural things. On these grounds, Aristotle concludes at Politics VII.17 (1337a1) that all art and training exist to remedy defects of nature.
Now men, who from the beginning have been gifted with reason above all animals, which is a great advantage for the conservation of their fellowship and community, and for the end on account of which each one of them exists. Indeed, having come to understand what is necessary through rational discourse, they were moved by a natural instinct to unite with one another and, once they were living together, to construct villages and towns. And if man had not discovered the rules for preserving peace against the corrupt inclinations of many, union would not have been enough to save him. And it is for this reason that cities were established, in which the citizens are united, and there are laws to preserve that unity and agreement by the common consent of all, and there are also guardians over them all, with the power to do as much as is necessary for the public good.
By a law that was divine, most admirable, and bestowed by grace upon all, it was made known to men that community was greatly in their interest, and that they are therefore preserved by an order in which laws are established by the common consent of all, or at least of the wise and heroic, with the others’ support. For just as it was maintained in the previous book that, according to St. Cyprian, by the promise of Christ the majority of the priesthood will not diverge from the true law, so likewise, when measures have been taken for the preservation of the commonwealth by common consent, the greater part of the people, citizens, or heroes will not diverge from the way that is right and useful for the times. Otherwise, the natural appetite would be frustrated in many things, which is held to be most inappropriate by the philosophers. For we see that man is a civil and political animal, and is naturally inclined to civilization [ad civilitatem inclinari]. Therefore the more vigorous part ought to make decisions for the rest of the polity, as Aristotle concludes in Politics IV.12 (1296b15).
But almighty God has conferred a sort of natural servitude on the weak and foolish, on account of which they readily trust the wise, and so by the help of the wise are governed and helped to preserve themselves, as we read in the letter which is eighth in the sequence called “Ambrosian”: “The foolish man is like a plantation, and the man lacking judgment is like a vineyard.” “Now the vineyard bears fruit if it is pruned, it flourishes if it is half-pruned, but if it is neglected, it becomes overgrown.”
And so, by a certain natural instinct, the superiority of the wise and the subjection are brought into agreement through the common laws, of which the wise are the primary authors, guardians, and executors, with the concurring consent and voluntary subjection of all the others. And if the regime is arranged in this way, then “it is impossible for the aristocratic city, that is, a city governed according to virtue” by the wise, with the consent of others, for the common good, “not to be well arranged,” as Aristotle decides in Politics IV.7 (1294a1ff).
Now law ought to be made by all those who are to be bound by it, or by a majority in an election, because it is for the good of the community, and what affects all ought to be decided by all, and a common decision can only be reached by the consent of all, or of a majority. There can be no excuse for disobeying the laws when each has established the law for himself. “For it is not good that good laws should be made, but not followed,” as Aristotle says in Politics IV.7 (1294a3). And so also the right to interpret the law belongs to those who have the right to establish it. For it is necessary that the realm be governed by these laws, since love and hatred are present in everyone.
For this reason, it is better for the commonwealth that there should be laws, than that the best man should be king, as Aristotle concludes in his investigation in Politics III.16 (1286a17-20) and in Rhetoric I.1 (1354b7). For where there is not the rule of law, there is no polity, as in Politics IV.4 (1292a32-34). So it is necessary for the state that the laws have great dignity [gravitate], and are seriously thought out through prudence propped up by long experience, as it says in Politics 2.5 (1264a1-3).
It is also necessary that the laws should be observed by the rulers, who in the first place must exercise sovereignty [dominari oportet] according to the laws, as in Politics 3.11 (1282b1-3) and in Ethics V.6 (1134a35), since the law is “an eye made up of many eyes” and “understanding without appetite,” as it says in Politics III.16 (1287a32, b26-29). For many people have found that rulers ought not to change that to which one has already subjected himself.
And even though the prince must exercise sovereignty in accordance with the laws, nevertheless, because he is the lord over those things about which nothing is clearly stated in the laws, as it says in Politics III.11 (1282b3-5), it is necessary that he be prudent, as it says in Politics III.4 (1277b25-27) and the tractate on justice in Ethics V.10 (1134b1), that he ought to exercise epieikeia [i.e. judgment outside of the law] with the guidance of the law, in those matters to which the law does not directly apply. And so every government (whether it is a monarchical rule of one, an aristocratic rule of many wise men, or a politic rule of all together and each according to his rank), as long as it tends toward the common good according to the will of its subjects, is called temperate and just, as in Politics 3 and 4. But if a government goes against the will of its subjects and tends toward some private good, it is intemperate, as in Politics 3.7 (1279a22ff). And so there arise three kinds of governments opposed to the temperate governments mentioned above: tyranny, oligarchy, and democracy. And the history books are full of these intemperate tyrannical, oligarchic, and democratic governments.
Book III, ch. 4: That the electors are not created by the Roman pontiff and do not have their power from him, but by the common consent of those subject to the empire, who by divine and human law, not positive law, can set an emperor above themselves, and that the upright and just empire has power from the subjects’ choice alone, without papal approval, and that [the emperor] cannot be deposed by the pope.
Who, I ask, gave the Roman people the power to elect the emperor, unless it was the living and natural law itself? For it is by way of voluntary subjection and consent to leadership that agreed-upon offices are established as upright and holy in every kind of rulership, since all violence goes against the law. For there is a general human agreement to comply with laws (Decretum. D. 8 c. 2 Quae contra mores § 2 l. fin., C. 3, 13. De iurisdictione omnium iudicum, l. 7 Periniquum, Di. 3, 4 Quod cuiusque universitatis l. 1 § 2. Quod si nemo).
The 75th canon of the Council of Toledo, held in the year of Christ 581 in the time of King Sisenand, established that, when the king died, the nobles of the nation together with the priests had to approve his successor by the general counsel of the realm, so that while agreement and unity were preserved, no discord might rise up in the country or the nation through the force of ambition. And the canon established that if anyone tyrannically usurped the realm, he would be excommunicated, and would be subject to a terrible anathema and curse.
For kings are called basilei in Greek, because like bases they sustain the people in unifying agreement; for this reason bases have crowns. Tyranni in Greek means the same as reges [kings] in Latin, for tyro means “strong,” and a tyrant is a strong king. Afterwards it became customary for “tyrants” to refer to the worst and wickedest kings, who rule in luxury and cruelly dominate the people, as Isidore says at Etymologies IX.3. And so those who usurp lordship without being invited or elected to do so are called tyrants.
Now if you call to mind those things which were said earlier about how all orderly authority arises from an elective agreement about voluntary subjection, and that there is in the people a divine seed, on account of the equal birth and equal natural laws that are common to all men, so that all power (which is primarily from God, from whom man himself also comes) can be considered divine, when it arises from the common agreement of those subject to it. And it should be constituted so that the one who rules, enacting in himself the will of all, might be called a public or common person and the father of every individual, governing all things with right, lawful, orderly power without any haughtiness or pride. While he recognizes himself as the creature of all his subjects collectively, he acts as a father to each individual. This is the orderly, divine marriage of spiritual unification, rooted in an enduring agreement, by which the commonwealth is best directed, in supreme peace, to the end of eternal happiness. And because the grounds for this in divine and human law are given above, I will not repeat them here.
It is enough to know that free election based on natural and divine law does not derive from the positive law or from any man, so that it might be in his power to judge the validity of an election. This is particularly the case in elections of the king and the emperor, whose esse and posse [i.e. existence and power] do not depend on any one man. And so the electors established in the time of Henry II, by the common consent of all the Germans and other people subject to the Empire, have their fundamental power [radicalem vim] from the common decision of everyone who by natural law could establish an emperor for themselves. This power does not come from the Roman pontiff, since it is not in the pontiff’s power to give a king or emperor to any province of the world without their consent.
Gregory V himself consented to this, in his role as Roman pontiff. According to his rank, he has the right of consenting to the common emperor, just as in universal councils he has the highest authority by the consent of all the others present at the council with him. Nevertheless, the force of [the council’s] decisions depends not on him as the first pontiff of all, but rather on the common consent of all, both of the pontiff and of the others. And although the consent of the priesthood, just like that of the laity, has a place in the establishment of a king or emperor, this is not because the imperial regime is necessarily superior to the priesthood (because we know that the priesthood is compared to the sun, and the empire to the moon, as in Decretum X I.33 De maioritate c. 16 Solitae §4), but because the details of temporal matters, without which the priesthood could not last very long in this fallen life, are subject to the empire (as Augustine says at Decretum D. 8 c. 1 Quo iure, & C. 23 q. 7 c. 1 Quicumque), and to its laws.
Book III, ch. 12: That the king or prince ought to issue general statues and laws that affect his territory by consent, in general councils of both estates of his realm, and he ought to execute and defend those laws, saving only his epieikeia, and that he ought to have a daily council of men chosen from all the territory subject to him, by the consent of his universal council.
In sum, it must be recognized that the goal of a ruler ought to be to lay down laws by agreement. Therefore it is appropriate to establish and direct all matters affecting the commonwealth in a council of both estates [i.e. the aristocracy and the clergy], of nobles and bishops. The king ought to be the executor of that which is established by agreement, because legislation is a rule according to which the subjects want the king’s authority to be ordered. Now no one doubts that a universal council, by the agreement of its head and members, can regulate governmental power for the common good. Still, when unclear circumstances arise, the laws so established can be suspended or overturned by the king for the good of the commonwealth and to the end of justice, through his power of equity [epikeiam virtutem]. But nevertheless, this must be understood to apply in the same way as was discussed above with regard to the Roman pontiff and the canons. The king cannot overturn a law without a council, if that law was established by a council, but he can declare that, in a specific case, the reasoning behind the law does not apply. And this is enough for us to know that in councils of the church the role of the king is to consent, to exhort, and to confirm, and to obey and execute ecclesiastical legislation that has to do with faith or divine worship.
Matters relating to the public state ought to be established likewise. The case is just like that of a metropolitan, as discussed above, who is the head of his council and can establish nothing concerning the whole province without the agreement of the council’s members. In the case of a king, the king ought to preside in a council concerned with matters that affect the regime of the commonwealth, and, taking council with the princes and also the bishops subject to him, he ought to make decisions carefully, and with their consent.
And so from among his subjects the prince ought to have men perfect for this purpose from every part of the realm elected to assist the king with daily counsel. Such counselors ought to play a role corresponding to that of all the residents of the realm who assist the Roman pontiff, as described above. And these counselors ought continually to defend the public good of those they represent, and to give advice, and to be a proportionate means by which the king governs and interacts with his subjects, and by which the subjects may give feedback to the king in particular matters. And in this daily counsel comprises the great power of the realm. Indeed, these counselors would need to be appointed by agreement from among the general assembly of the realm, and would clearly be obliged to advance the public good through laws and legal judgments. And since on the subject of the regime of a commonwealth we have been bequeathed many great volumes by St. Thomas, Aegidius of Rome, Sedulius Scotus, and, before them, Plato and Cicero (although these last books are lost), one should turn to these for further discussion.
Book III, ch. 25. On the imperial council assembled of the principle members of the empire, and its ancient use and usefulness; that it is greatly helpful to the government of the republic, if it is rightly convened and continued. […]
This would be the place for dealing at greater length with the things mentioned previously about the imperial council, in which those imperial matters that have to do with the good governance of the public good would be enacted in law after mature, considered counsel and with the consent of all. But since this imperial council is very similar to the universal synod of priests which we have already discussed in all its particulars, we can deal with the subject more briefly here.
We know that the emperor is the head and foremost of all, and that he has the imperial power to assemble the kings and princes subject to him. And in this universal council of the empire, those who, like limbs, ought to come together with this head are the princes, the governors of the provinces representing their provinces, and also the rectors and teachers of the great universities, and those who are of the senatorial class which is called the “sacred convention.” This class consists of the “illustres,” who are closest to the emperor and are part of his body (C. 6 q. 1 c. 22 Si quis), the “exspectabiles,” who have a middle rank, and the “clarissimi,” who have the lowest rank. There is no one among the senatorial group who is not of one of these ranks (C. 2 q. 6 c. 28 Anteriorum § Illud etiam). In the book of digests, their offices are described according to their ranks.
In the first rank are the kings and the imperial electors, and the patricians. Second are the dukes, governors, prefects, and such. third are the marquesses, landgraves, and the like. All those who exceed others and are closer to the Empire constitute the imperial body, of which the head is Caesar himself. And while they are meeting together in one representative assembly, the whole of the empire is gathered together (as is proved in the Lex Julia, included in the Decretum at c. 6 q. 1 c. 22 Si quis cum militibus, where it is called Ad legem Juliam maiestatis, C. 1 Quisquis, and also in the 17th chapter of the text cited previously from the Eighth Council [i.e. the Fourth Council of Constantinople], where it says, “Since princes frequently hold conventions for their purposes,” &c.).
And since universal decrees for the good of the empire ought to be issued by consent, and for the end that the general law should not be objectionable to a part of the empire, and so that accurate knowledge may be had of this, the aforesaid leaders and other most trustworthy sworn men come together to deliberate, with clear wisdom, about the measures appropriate for each time and place, and to make their decisions known to all. And so the mature decisions of the council are entrusted to their firm guardianship. I have found in old books that certain universal councils of the empire were held, in which, after the emperor, the princes added their signatures in their own hand as a testament to the council’s perpetual validity, just as the custom has been in ecclesiastical synods.
A Defense of Liberty Against Tyrants
By Stephen Junius Brutus
[Stephen Junius Brutus (pseudonym). Vindiciae contra Tyrannos: A Defence of Liberty against Tyrants, OR, Of the Lawful Power of the Prince over the People and of the People over the Prince. A Treatise written in Latin and French by Junius Brutus, and Translated out of both into English. London: Richard Baldwin. 1689. Excerpts. In the Public Domain.]
OBEDIENCE TO PRINCES OR TO GOD?
This question happily may seem at the first view to be altogether superfluous and unprofitable, for that it seems to make a doubt of an axiom always held infallible among Christians, confirmed by many testimonies in Holy Scripture, divers examples of the histories of all ages, and by the death of all the holy martyrs. For it may be well demanded wherefore Christians have endured so many afflictions, but that they were always persuaded that God must be obeyed simply and absolutely, and kings with this exception, that they command not that which is repugnant to the law of God. Otherways wherefore should the apostles have answered, that God must rather be obeyed than men, and also seeing that the only will of God is always just, and that of men may be, and is oftentimes unjust, who can doubt but that we must always obey God’s commandments without any exception, and men’s ever with limitation?
There are no estates which ought to be esteemed firm and stable, but those in whom the temple of God is built, and which are indeed the temple itself, and these we may truly call kings, which reign with God, seeing that it is by him only that kings reign: On the contrary, what beastly foolishness it is to think that the state and kingdom cannot subsist if God Almighty be not excluded, and his temple demolished. From hence proceed so many tyrannous enterprises, unhappy and tragic death of kings, and ruins of people. If these sycophants knew what difference there is between God and Caesar, between the King of Kings and a simple king, between the lord and the vassal, and what tributes this lord requires of his subjects, and what authority he gives to kings over those his subjects, certainly so many princes would not strive to trouble the kingdom of God, and we should not see some of them precipitated from their thrones by the just instigation of the Almighty, revenging himself of them, in the midst of their greatest strength, and the people should not be sacked and pillaged and trodden down.
It then belongs to princes to know how far they may extend their authority, and to subjects in what they may obey them, lest the one encroaching on that jurisdiction, which no way belongs to them, and the others obeying him which commands further than he ought, they be both chastised, when they shall give an account thereof before another judge. Now the end and scope of the question propounded, whereof the Holy Scripture shall principally give the resolution, is that which follows. The question is, if subjects be bound to obey kings, in case they command that which is against the law of God: that is to say, to which of the two (God or king) must we rather obey, when the question shall be resolved concerning the king, to whom is attributed absolute power, that concerning other magistrates shall be also determined.
First, the Holy Scripture does teach that God reigns by his own proper authority, and kings by derivation. God from himself, kings from God, that God has a jurisdiction proper, kings are his delegates. It follows then, that the jurisdiction of God has no limits, that of kings bounded, that the power of God is infinite, that of kings confined, that the kingdom of God extends itself to all places, that of kings is restrained within the confines of certain countries. In like manner God had created of nothing both heaven and earth; wherefore by good right He is lord, and true proprietor, both of the one and the other. All the inhabitants of the earth hold of Him that which they have, and are but His tenants and farmers; all the princes and governors of the world are His stipendiaries and vassals, and are bound to take and acknowledge their investitures from Him. Briefly, God alone is the owner and lord, and all men of what degree or quality soever they be, are His servants, farmers, officers and vassals, and owe account and acknowledgement to Him, according to that which He has committed to their dispensation; the higher their place is, the greater their account must be, and according to the ranks whereunto God has raised them, must they make their reckoning before His divine majesty, which the Holy Scriptures teach in infinite places, and all the faithful, yea, and the wisest among the heathen have ever acknowledged.
Now if we consider what is the duty of vassals, we shall find that what may be said of them, agrees properly to kings. The vassal receives his fee of his lord with right of justice, and charge to serve him in his wars. The king is established by the Lord God, the King of Kings, to the end he should administer justice to his people and defend them against all their enemies. The vassal receives laws and conditions from his sovereign. God commands the king to observe his laws and to have them always before his eyes, promising that he and his successors shall possess long the kingdom, if they be obedient, and on the contrary, that their reign shall be of small continuance, if they prove rebellious to their sovereign king. The vassal obliges himself by oath unto his lord, and swears that he will be faithful and obedient. In like manner the king promises solemnly to command, according to the express law of God. Briefly, the vassal loses his fee, if he commit a felony, and by law forfeits all his privileges. In the like case the king loses his right, and many times his realm also, if he despise God, if he complot with his enemies, and if he commit felony against that royal majesty. This will appear more clearly by the consideration of the covenant which is contracted between God and the king, for God does that honor to His servants to call them His confederates. Now we read of two sorts of covenants at the inaugurating of kings, the first between God, the king, and the people, that the people might be the people of God. The second, between the king and the people, that the people shall obey faithfully, and the king command justly.
Briefly, even as those rebellious vassals who endeavor to possess themselves of the kingdom, do commit felony by the testimony of all laws, and deserve to be extirpated; in like manner those are as really guilty which will not observe the divine law, whereunto all men without exception owe their obedience, or who persecute those who desire to conform themselves thereunto, without hearing them in their just defenses: now for that we see that God invests kings into their kingdoms, almost in the same manner that vassals are invested into their fees by their sovereign, we must needs conclude that kings are the vassals of God, and deserve to be deprived of the benefit they receive from their lord if they commit felony, in the same fashion as rebellious vassals are of their estates. These premises being allowed, this question may be easily resolved; for if God hold the place of sovereign Lord, and the king as vassal, who dare deny but that we must rather obey the sovereign than the vassal? If God commands one thing, and the king commands the contrary, what is that proud man that would term him a rebel who refuses to obey the king, when else he must disobey God? But, on the contrary, he should rather be condemned, and held for truly rebellious, who omits to obey God, or who will obey the king, when he forbids him to yield obedience to God.
Briefly, if God calls us on the one side to enrol us in His service, and the king on the other, is any man so void of reason that he will not say we must leave the king, and apply ourselves to God’s service: so far be it from us to believe, that we are bound to obey a king, commanding anything contrary to the law of God, that, contrarily, in obeying him we become rebels to God; no more nor less than we would esteem a countryman a rebel who, for the love he bears to some rich and ancient inferior lord, would bear arms against the sovereign prince, or who had rather obey the writs of an inferior judge than of a superior, the commandments of a lieutenant of a province, than of a prince; to be brief, the directions of an officer rather than the express ordinances of the king himself. In doing this we justly incur the malediction of the prophet Micah, who does detest and curse, in the name of God, all those who obey the wicked and perverse ordinances of kings. By the law of God we understand the two tables given to Moses, in the which, as in unremovable bounds, the authority of all princes ought to be fixed. The first comprehends that which we owe to God, the second that which we must do to our neighbors; briefly, they contain piety and justice conjoined with charity, from which the preaching of the gospel does not derogate, but rather authorize and confirm. The first table is esteemed the principal, as well in order as in dignity. If the prince commands to cut the throat of an innocent, to pillage and commit extortion, there is no man (provided he has some feeling of conscience) who would execute such a commandment.
LAWFUL RESISTANCE TO PRINCES IN DEFENSE OF DIVINE LAW
This question seems at the first view to be of a high and difficult nature, for so much as there being small occasion to speak to princes that fear God. On the contrary, there will be much danger to trouble the ears of those who acknowledge no pther sovereign but themselves, for which reason few or none have meddled with it, and if any have at all touched it, it has been but as it were in passing by. The question is, if it be lawful to resist a prince violating the law of God, or ruinating the church, or hindering the restoring of it? If we hold ourselves to the tenure of the Holy Scripture it wiU resolve us. For, if in this case it had been lawful to the Jewish people (which may be easily gathered from the books of the Old Testament), yea, if it had been enjoined them, I believe it will not be denied, that the same must be allowed to the whole people of any Christian kingdom or country whatsoever.
But who may punish the king (for here is question of corporal and temporal punishment) if it be not the whole body of the people to whom the king swears and obliges himself, no more nor less, than the people do to the king? We read also that king Josia, being of the age of twenty-and-five years, together with the whole people, makes a covenant with the Lord, the king and the people promising to keep the laws and ordinances of God; and even then for the better accomplishing of the tenure of this agreement, the idolatry of Baal was presently destroyed.
If any will more exactly turn over the Holy Bible, he may well find other testimonies to this purpose.
But I see well, here will be an objection made. What will you say? That a whole people, that beast of many heads, must they run in a mutinous disorder, to order the business of the commonwealth? What address or direction is there in an unruly and unbridled multitude? What counsel or wisdom, to manage the affairs of state?
When we speak of all the people, we understand by that, only those who hold their authority from the people, to wit, the magistrates, who are inferior to the king, and whom the people have substituted, or established, as it were, consorts in the empire, and with a kind of tribunitial authority, to restrain the encroachments of sovereignty, and to represent the whole body of the people. We understand also, the assembly of the estates, which is nothing else but an epitome, or brief collection of the kingdom, to whom all public affairs have special and absolute reference: such were the seventy ancients in the kingdom of Israel, amongst whom the high priest was as it were president, and they judged all matters of greatest importance, those seventy being first chosen by six out of each tribe, which came out of the land of Egypt, then the heads or governors of provinces. In like manner the judges and provosts of towns, the captains of thousands, the centurions and others who commanded over families, the most valiant, noble, and otherwise notable personages, of whom was composed the body of the states, assembled divers times as it plainly appears by the word of the holy scripture. At the election of the first king, who was Saul, all the ancients of Israel assembled together at Kama. In like manner all Israel was assembled, or all Judah and Benjamin, etc. Now, it is no way probable, that all the people, one by one, met together there. Of this rank there are in every well governed kingdom, the princes, the officers of the crown, the peers, the greatest and most notable lords, the deputies of provinces, of whom the ordinary body of the estate is composed, or the parliament or the diet, or other assembly, according to the different names used in divers countries of the world; in which assemblies, the principal care is had both for the preventing and reforming either of disorder or detriment in church or commonwealth.
For as the councils of Basle and Constance have decreed (and well decreed) that the universal council is in authority above the bishop of Rome, so in like manner, the whole chapter may overrule the bishop, the University the rector, the court the president. Briefly, he, whosoever he is, who has received authority from a company, is inferior to that whole company, although he be superior to any of the particular members of it.
A combination or conjuration is good or ill, according as the end whereunto it is addressed is good or ill; and perhaps also according as they are affected who are the managers of it. We say then, that the princes of Judah have done well, and that in following any other course they had failed of the right way. For even as the guardian ought to take charge and care that the goods of his pupil fall not into loss and detriment, and if he omits his duty therein, he may be compelled to give an account thereof, in like manner, those to whose custody and tuition the people have committed themselves, and whom they have constituted their tutors and defenders ought to maintain them safe and entire in all their rights and privileges. To be short, as it is lawful for a whole people to resist and oppose tyranny, so likewise the principal persons of the kingdom may as heads, and for the good of the whole body, confederate and associate themselves together; and as in a public state, that which is done by the greatest part is esteemed and taken as the act of all, so in like manner must it be said to be done, which the better part of the most principal have acted, briefly, that all the people had their hand in it.
KINGS MADE BY THE PEOPLE
We have shown before that it is God that does appoint kings, who chooses them, who gives the kingdom to them: now we say that the people establish kings, put the scepter into their hands, and who with their suffrages, approve the election. God would have it done in this manner, to the end that the kings should acknowledge, that after God they hold their power and sovereignty from the people, and that it might the rather induce them to apply and address the utmost of their care and thoughts for the profit of the people, without being puffed with any vain imagination, that they were formed of any matter more excellent than other men, for which they were raised so high above others; as if they were to command our flocks of sheep, or herds of cattle. But let them remember and know, that they are of the same mold and condition as others, raised from the earth by the voice and acclamations, now as it were upon the shoulders of the people unto their thrones, that they might afterward bear on their own shoulders the greatest burdens of the commonwealth. Divers ages before that, the people of Israel demanded a king. God gave and appointed the law of royal government contained in the seventeenth chapter, verse fourteen of Deuteronomy, when says Moses, “thou art come unto the land which the Lord thy God giveth thee, and shall possess it, and shalt dwell therein, and shalt say. I will set a king over me like as all the nations that are about me, thou shalt in any wise set him whom the Lord thy God shall choose from amongst thy brethren, etc.” You see here, that the election of the king is attributed to God, the establishment to the people; now when the practice of this law came in use, see in what manner they proceeded.
The elders of Israel, who presented the whole body of the people (under this name of elders are comprehended the captains, the centurions, commanders over fifties and tens, judges, provosts, but principally the chiefs of tribes) came to meet Samuel in Ramah, and not being willing longer to endure the government of the sons of Samuel, whose ill carriage had justly drawn on them the people’s dislike, and withal persuading themselves that they had found the means to make their wars hereafter with more advantage, they demanded a king of Samuel, who asking counsel of the Lord, he made known that He had chosen Saul for the governor of His people. Then Samuel anointed Saul, and performed all those rights which belong to the election of a king required by the people. Now this might, perhaps, have seemed sufficient, if Samuel had presented to the people the king who was chosen by God, and had admonished them all to become good and obedient subjects. Notwithstanding, to the end that the king might know that he was established by the people. Samuel appointed the estates to meet at Mizpah, where being assembled as if the business were but then to begin, and nothing had already been done, to be brief, as if the election of Saul were then only to be treated of, the lot is cast and falls on the tribe of Benjamin, after on the family of Matri, and lastly on Saul, born of that family, who was the same whom God had chosen. Then by the consent of all the people Saul was declared king. Finally, that Saul nor any other might attribute the aforesaid business to chance or lot, after that Saul had made some proof of his valor in raising the siege of the Ammonites in Jabish Gilead, some of the people pressing the business, he was again confirmed king in a full assembly at Gilgal. You see that he whom God had chosen, and the lot had separated from all the rest, is established king by the suffrages of the people.
Briefly, for so much as none were ever born with crowns on their heads, and scepters in their hands, and that no man can be a king by himself, nor reign without people, whereas on the contrary, the people may subsist of themselves, and were, long before they had any kings, it must of necessity follow that kings were at the first constituted by the people; and although the sons and dependents of such kings, inheriting their fathers’ virtues, may in a sort seem to have rendered their kingdoms hereditary to their offsprings, and that in some kingdoms and countries the right of free election seems in a sort buried; yet, notwithstanding, in all well-ordered kingdoms, this custom is yet remaining. The sons do not succeed the fathers, before the people have first, as it were, anew established them by their new approbation: neither were they acknowledged in quality, as inheriting it from the dead; but approved and accounted kings then only, when they were invested with the kingdom, by receiving the scepter and diadem from the hands of those who represent the majesty of the people. One may see most evident marks of this in Christian kingdoms, which are at this day esteemed hereditary; for the French king, he of Spain and England, and others, are commonly sacred, and, as it were, put into possession of their authority by the peers, lords of the kingdom, and officers of the crown, who represent the body of the people.
THE PEOPLE ABOVE THE KING
Now, seeing that the people choose and establish their kings, it follows that the whole body of the people is above the king; for it is a thing most evident, that he who is established by another, is accounted under him who has established him, and he who receives his authority from another, is less than he from whom he derives his power. Potiphar the Egyptian sets Joseph over all his house; Nebuchadnezzar, Daniel over the province of Babylon; Darius, the six score governors over the kingdom. It is commonly said that masters establish their servants, kings their officers. In like manner, also, the people establish the king as administrator of the commonwealth. Good kings have not disdained this title; yea, the bad ones themselves have affected it; insomuch, as for the space of divers ages, no Roman emperor (if it were not some absolute tyrant, as Nero, Domitian, Caligula) would suffer himself to be called lord. Furthermore, it must necessarily be that kings were instituted for the people’s sake, neither can it be that for the pleasure of some hundreds of men, and without doubt more foolish and worse than many of the other, all the rest were made, but much rather that these hundred were made for the use and service of all the other, and reason requires that he be preferred above the other, who was made only to and for his occasion: so it is, that for the ship’s sail, the owner appoints a pilot over her, who sits at the helm, and looks that she keep her course, nor run not upon any dangerous shelf; the pilot doing his duty, is obeyed by the mariners; yea, and of himself who is owner of the vessel, notwithstanding, the pilot is a servant as well as the least in the ship, from whom he only differs in this, that he serves in a better place than they do.
In a commonwealth, commonly compared to a ship, the king holds the place of pilot, the people in general are owners of the vessel, obeying the pilot, while he is careful of the public good; as though this pilot neither is nor ought to be esteemed other than servant to the public; as a judge or general in war differs little from other officers, but that he is bound to bear greater burdens, and expose himself to more dangers. By the same reason also which the king gains by acquist of arms, be it that he possesses himself of frontier places in warring on the enemy, or that which he gets by escheats or confiscations, he gets it to the kingdom, and not to himself, to wit, to the people, of whom the kingdom is composed, no more nor less than the servant does for his master; neither may one contract or oblige themselves to him, but by and with reference to the authority derived from the people. Furthermore, there is an infinite sort of people who live without a king, but we cannot imagine a king without people. And those who have been raised to the royal dignity were not advanced because they excelled other men in beauty and comeliness, nor in some excellency of nature to govern them as shepherds do their flocks, but rather being made out of the same mass with the rest of the people, they would acknowledge that for them, they, as it were, borrow their power and authority.
The ancient custom of the French represents that exceeding well, for they used to lift up on a buckler, and salute him king whom they had chosen. And wherefore is it said, “I pray you, that kings have an infinite number of eyes, a million of ears, with extreme long hands and feet exceeding swift”? Is it because they are like to Argos. Gerien. Midas, and divers •others so celebrated by the poets? No, truly, but it is said in regard to all the people, whom the business principally concerns, who lend to the king for the good of the commonwealth, their eyes, their ears, their means, their faculties. Let the people forsake the king, he presently falls to the ground, although before, his hearing and sight seemed most excellent, and that he was strong and in the best disposition that might be; yea, that he seemed to triumph in all magnificence, yet in an instant he will become most vile and contemptible: to be brief, instead of those divine honours wherewith all men adore him, he shall be compelled to become a pendant, and whip children in the school at Corinth. Take away but the basis to this giant, and like the Rhodian Colossus he presently tumbles on the ground and falls into pieces. Seeing then that the king is established in this degree by the people, and for their sake, and that he cannot subsist without them, who can think it strange, then, for us to conclude that the people are above the king?
Now that which we speak of all the people universally, ought also to be understood of those who in every kingdom or town do lawfully represent the body of the people, and who ordinarily are (or at least should be) called the officers of the kingdom, or crown, and not of the king; for the officers of the king, it is he who places and displaces them at his pleasure, yea, after his death they have no more power, and are accounted as dead. On the contrary, the officers of the kingdom receive their authority from the people in the general assembly of the states (or, at the least were accustomed so anciently to have done) and cannot be disauthorized but by them, so then the one depends of the king, the other of the kingdom, those of the sovereign officer of the kingdom, who is the king himself, those of the sovereignty itself, that is of the people, of which sovereignty both the king and all his officers of the kingdom ought to depend, the charge of the one has proper relation to the care of the king’s person: that of the other, to look that the commonwealth receive no damage; the first ought to serve and assist the king, as all domestic servants are bound to do to their masters; the other to preserve the rights and privileges of the people, and to carefully hinder the prince, that he neither omit the things that may advantage the state, nor commit anything that may damage the public.
Briefly, the one are servants and domestics of the king, and received into their places to obey his person; the other, on the contrary, are as associates to the king, in the administration of justice, participating of the royal power and authority, being bound to the utmost of their power to be assisting in the managing of the affairs of state, as well as the king, who is, as it were, president amongst them, and principal only in order and degree.
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, the which associates considered in particular one by one, are under the king, and altogether in one entire body are above him: We must consequently see wherefore first kings were 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 consents, that men by nature loving liberty, and hating servitude, 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, but 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 to make it serve as a 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, wherefore Saint 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 lordlike 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 then, to govern is nothing else but to provide for. These proper ends of commanding, being for the people’s commodity, 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 of 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 wrapt withal, no man would take it up, although it lay at his feet.”
When, therefore, that these words of “mine” and “thine” entered into the world, and that differences fell amongst fellow citizens, touching the propriety of goods, and wars amongst neighboring people about the right of their confines, 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 reposed most confidence. See, then, wherefore kings were created in the first ages; to wit, 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.
ARE KINGS ABOVE THE LAW?
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 withal, 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, counselors, of whom we have formerly made mention, wherefore there is nothing which exempts the king from 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: 57c 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 blessedest 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 of 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 sea-card. Who can doubt, but that it is a thing more profitable and convenient to obey the law, 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 never so acute. The law is reason and wisdom itself, free from all perturbation, not subject to be moved with choler, ambition, hate, or acceptances of persons.
For, if the welfare of the kingdom depends on the observation of the laws, and the laws are enthralled 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 be superior to the king, as we have already proved, and that the king be 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?
SUBJECTS NOT THE KING’S SLAVES
For truly neither are the subjects, as it is commonly said, the king’s slaves, or bondmen: being neither prisoners taken in the wars, nor bought for money. But as considered in one entire body they are 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 not this 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, did yet draw 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, an Hebrew word which signifies, 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 except against me, as if I sought to entrench too much upon the royal authority, I verily 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 prince 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, must needs live in much anxiety and fear, and may well be resembled 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.
AUTHORITY BASED ON CONTRACT
We have shown already that in the establishing of the king there were two alliances or covenants contracted: the first between God, the king, and the people, of which we have formerly treated; the second, between the king and the people, of which we must now say somewhat. After that Saul was established king, the royal law was given him, according to which he ought to govern. David made a covenant in Hebron before the Lord, that is to say, taking God for witness, with all the ancients of Israel, who represented the whole body of the people, and even then he was made king. Joas also by the mouth of Johoiada the high priest, entered into covenant with the whole people of the land in the house of the Lord. And when the crown was set on his head, together with it was the law of the testimony put into his hand, which most expounds to be the law of God; likewise Josias promises to observe and keep the commandments, testimonies, and statutes comprised in the book of the covenant: under which words are contained all which belongs to the duties both of the first and second table of the law of God. In all the before-remembered places of the holy story, it is ever said, “that a covenant was made with all the people, with all the multitude, with all the elders, with all the men of Judah”: to the end that we might know, as it is also fully expressed, that not only the principals of the tribes, but also all the milleniers, centurions, and subaltern magistrates should meet together, each of them in the name, and for their towns and communalties, to covenant and contract with the king. In this assembly was the creating of the king determined of, for it was the people who made the king, and not the king the people.
It is certain, then, that the people by way or stipulation require a performance of covenants. The king promises it. Now the condition of a stipulator is in terms of law more worthy than of a promiser. The people ask the king, whether he will govern justly and according to the laws? He promises he will. Then the people answer, and not before, that while he governs uprightly, they will obey faithfully. The king therefore promises simply and absolutely, the people upon condition: the which failing to be accomplished, the people rest according to equity and reason quit from their promise.
In the first covenant or contract there is only an obligation to piety: in the second, to justice. In that, the king promises to serve God religiously: in this, to rule the people justly. By the one he is obliged with the utmost of his endeavors to procure the glory of God: by the other, the profit of the people. In the first, there is a condition £xpressed, “if thou keep my commandn.ents”: in the second, “if thou distribute justice equally to every man.” God is the proper revenger of deficiency in the former, and the whole people the lawful punisher of delinquency in the latter, or the estates, the representative body thereof who have assumed to themselves the protection of the people. This has been always practiced in all well-governed estates.
I would ask here, wherefore a man does swear, if it be not to declare that what he delivers he sincerely intends from his heart? Can anything be judged more near to the law’of nature, than to observe that which we approve? Furthermore, what is the reason the king swears first, and at the instance, and required by the people, but to accept a condition either tacit or expressed? Wherefore is there a condition opposed to the contract, if it be not that in failing to perform the condition, the contract, according to law, remains void? And if for want of satisfying the condition by right, the contract is of no force, who shall dare to call that people perjured, which refuses to obey a king who makes no account of his promise, which he might and ought to have kept, and willfully breaks those laws which he did swear to observe? On the contrary, may we not rather esteem such a king perfidious, perjured, and unworthy of his place? For if the law free the vassal from his lord, who dealt feloniously with him, although that to speak properly, the lord swears not fealty to his vassal, but he to him: if the law of the twelve tables does detest and hold in execration the protector who defrauds him that is under his tuition: if the civil law permit an enfranchised servant to bring his action against his patron, for any grievous usage: if in such cases the same law delivers the slave from the power of his master, although the obligation be natural only, and not civil: is it not much more reasonable that the people be loosed from that oath of allegiance which they have taken, if the king (who may be not unfitly resembled by an attorney, sworn to look to his client’s cause) first break his oath solemnly taken? And what if all these ceremonies, solemn oaths, nay, sacramental promises, had never been taken? Does not nature herself sufficiently teach that kings were on this condition ordained by the people, that they should govern well: judges, that they should distribute justice uprightly; captains in the war, that they should lead their armies against their enemies? If, on the contrary, they themselves forage and spoil their subjects, and instead of governors become enemies, as they leave indeed the true and essential qualities of a king, so neither ought the people to acknowledge them for lawful princes. But what if a people (you will reply) subdued by force, be compelled by the king to take an oath of servitude? And what if a robber, pirate, or tyrant (I will answer) with whom no bond of human society can be effectual, holding his dagger to your throat, constrain you presently to become bound in a great sum of money? Is it not an unquestionable maxim in law, that a promise exacted by violence cannot bind, especially if anything be promised against common reason, or the law of nature? Is there anything more repugnant to nature and reason, than that a people should manacle and fetter themselves; and to be obliged by promise to the prince, with their own hands and weapons to be their own executioners? There is, therefore, a mutual obligation between the king and the people, which, whether it be civil or natural only, whether tacit or expressed in words, it cannot by any means be annihilated, or by any law be abrogated, much less by force made void. And this obligation is of such power that the prince who willfully violates it, is a tyrant. And the people who purposely break it, may be justly termed seditious.
Of the Laws of Ecclesiastical Polity, Excerpts
By Richard Hooker
[Hooker, Richard. The Works of that Learned and Judicious Divine Mr. Richard Hooker with an Account of His Life and Death by Isaac Walton. Arranged by the Rev. John Keble MA. 7th edition revised by the Very Rev. R.W. Church and the Rev. F. Paget. Oxford: Clarendon Press. 1888. Vol. 1. THE FIRST BOOK. CONCERNING LAWS AND THEIR SEVERAL KINDS IN GENERAL. Selections from chapters 3, 8, 10, 12, and 16. Online Library of Liberty. In the Public Domain.]
Hooker’s citations have been translated into English where necessary. Hooker often cited from versions of the texts that differ from those commonly accepted today; the reader should note that it is Hooker’s original notes, and not the established edition’s, that have been translated here.
III. The law which natural agents have given them to observe, and their necessary manner of keeping it.
I am not ignorant that by law eternal the learned for the most part do understand the order, not which God hath eternally proposed himself in all his works to observe, but rather that which with himself he hath set down as expedient to be kept by all his creatures, according to the several condition with which he hath endued them. They who thus are accustomed to speak apply the name of Law unto that only rule of working which superior authority imposeth; whereas we somewhat more enlarging the sense thereof term any kind of rule or canon whereby actions are framed, a law. Now that law which, as it is laid up in the bosom of God, they call eternal, receiveth according unto the different kinds of things which are subject unto it different and sundry kinds of names. That part of it which ordereth natural agents we call usually nature’s law; that which Angels do clearly behold and without any swerving observe is a law celestial and heavenly; the law of reason, that which bindeth creatures reasonable in this world, and with which by reason they may most plainly perceive themselves bound; that which bindeth them, and is not known but by special revelation from God, Divine law; human law, that which out of the law either of reason or of God men probably gathering to be expedient, they make it a law. All things therefore, which are as they ought to be, are conformed unto this second law eternal; and even those things which to this eternal law are not conformable, are notwithstanding in some sort ordered by the first eternal law. For what good or evil is there under the sun, what action correspondent or repugnant unto the law which God hath imposed upon his creatures, but in or upon it God doth work according to the law which himself hath eternally purposed to keep; that is to say, the first law eternal? So that a twofold law eternal being thus made, it is not hard to conceive how they both take place in all things.
Wherefore to come to the law of nature: albeit thereby we sometimes mean that manner of working which God hath set for each created thing to keep; yet forasmuch as those things are termed most properly natural agents, which keep the law of their kind unwittingly, as the heavens and elements of the world, which can do no otherwise than they do; and forasmuch as we give unto intellectual natures the name of voluntary agents, that so we may distinguish them from the other; expedient it will be, that we sever the law of nature observed by the one from that which the other is tied unto. […]
VIII. Of the natural way of finding out laws by reason to guide the will unto that which is good.
The general and perpetual voice of men is as the sentence of God himself. For that which men have at all times learned, nature herself must needs have taught; and God being the author of nature, her voice is but his instrument. By her from him we receive whatsoever in such sort we learn. Infinite duties there are, the goodness whereof is by this rule sufficiently manifested, although we had no other warrant besides to approve them. The Apostle St. Paul having speech concerning the heathen saith of them, They are a law unto themselves. His meaning is, that by force of the light of reason, wherewith God illuminateth every one which cometh into the world, men being enabled to know truth from falsehood, and good from evil, do thereby learn in many things what the will of God is; which will himself not revealing by any extraordinary means unto them, but they by natural discourse attaining the knowledge thereof, seem the makers of those laws which indeed are his, and they but only the finders of them out.
A law therefore generally taken, is a directive rule unto goodness of operation. The rule of divine operations outward, is the definitive appointment of God’s own wisdom set down within himself. The rule of natural agents that work by simple necessity, is the determination of the wisdom of God, known to God himself the principal director of them, but not unto them that are directed to execute the same. The rule of natural agents which work after a sort of their own accord, as the beasts do, is the judgment of common sense or fancy concerning the sensible goodness of those objects wherewith they are moved. The rule of ghostly or immaterial natures, as spirits and Angels, is their intuitive intellectual judgment concerning the amiable beauty and high goodness of that object, which with unspeakable joy and delight doth set them on work. The rule of voluntary agents on earth is the sentence that reason giveth concerning the goodness of those things which they are to do. And the sentences which reason giveth are some more some less general, before it come to define in particular actions what is good.
The main principles of reason are in themselves apparent. For to make nothing evident of itself were to take away all possibility of knowing anything. […]
Touching the several grand mandates, which being imposed by the understanding faculty of the mind must be obeyed by the will of man, they are by the same method found out, whether they import our duty towards God or towards man.
Touching the one, I may not here stand to open, by what degrees of discourse the minds even of mere natural men have attained to know, not only that there is a God, but also what power, force, wisdom, and other properties that God hath, and how all things depend on him. This being therefore presupposed, from that known relation which God hath unto us as unto children, and unto all good things as unto effects whereof himself is the principal cause, these axioms and laws natural concerning our duty have arisen. […]
The like natural inducement hath brought men to know that it is their duty no less to love others than themselves. For seeing those things which are equal must needs all have one measure; if I cannot but wish to receive all good, even as much at every man’s hand as any man can wish unto his own soul, how should I look to have any part of my desire herein satisfied, unless myself be careful to satisfy the like desire which is undoubtedly in other men, we all being of one and the same nature? To have any thing offered them repugnant to this desire must needs in all respects grieve them as much as me: so that if I do harm I must look to suffer; there being no reason that others should shew greater measure of love to me than they have by me shewed unto them. My desire therefore to be loved of my equals in nature as much as possible may be, imposeth upon me a natural duty of bearing to them-ward fully the like affection. From which relation of equality between ourselves and them that are as ourselves, what several rules and canons natural reason hath drawn for direction of life no man is ignorant. […]
A law is properly that which reason in such sort defineth to be good that it must be done. And the law of reason or human nature is that which men by discourse of natural reason have rightly found out themselves to be all for ever bound unto in their actions.
Laws of reason have these marks to be known by. Such as keep them resemble most lively in their voluntary actions that very manner of working which nature herself doth necessarily observe in the course of the whole world. The works of nature are all behoveful, beautiful, without superfluity or defect; even so theirs, if they be framed according to that which the law of reason teacheth. Secondly, these laws are investigable by reason, without the help of revelation supernatural or divine. Finally, in such sort they are investigable, that the knowledge of them is general, the world hath always been acquainted with them. […] It is not agreed upon by one, or two, or few, but by all: which we may not so understand, as if every particular man in the whole world did know and confess whatsoever the law of reason doth contain; but the law is such that being proposed no man can reject it as being unreasonable and unjust. Again, there is nothing in it but any man (having natural perfection of wit and ripeness of judgment) may by labour and travail find out. And to conclude, the general principles thereof are such, as it is not easy to find men ignorant of them. Law rational therefore, which men commonly use to call the law of nature, meaning thereby the law which human nature knoweth itself in reason universally bound unto, which also for that cause may be termed most fitly the law of reason: this law, I say, comprehendeth all those things which men by the light of their natural understanding evidently know, or at leastwise may know, to be beseeming or unbeseeming, virtuous or vicious, good or evil for them to do.
If it then be here demanded, by what means it should come to pass (the greatest part of the law moral being so easy for all men to know) that so many thousands of men notwithstanding have been ignorant even of principal moral duties, not imagining the breach of them to be sin: I deny not but lewd and wicked custom, beginning perhaps at the first among few, afterwards spreading into greater multitudes, and so continuing from time to time, may be of force even in plain things to smother the light of natural understanding; because men will not bend their wits to examine whether things wherewith they have been accustomed be good or evil.
X. How reason doth lead men unto the making of human laws whereby politic societies are governed; and to agreement about laws whereby the fellowship or communion of independent societies standeth.
The laws which have been hitherto mentioned do bind men absolutely as they are men, although they have never any settled fellowship, never any solemn agreement amongst themselves what to do or not to do. But forasmuch as we are not by ourselves sufficient to furnish ourselves with competent store of things needful for such a life as our nature doth desire, a life fit for the dignity of man; therefore to supply those defects and imperfections which are in us living singly and solely by ourselves, we are naturally induced to seek communion and fellowship with others. This was the cause of men’s uniting themselves at the first in politic societies; which societies could not be without government, nor government without a distinct kind of law from that which hath been already declared. Two foundations there are which bear up public societies; the one, a natural inclination, whereby all men desire sociable life and fellowship; the other, an order expressly or secretly agreed upon touching the manner of their union in living together. The latter is that which we call the law of a commonweal, the very soul of a politic body, the parts whereof are by law animated, held together, and set on work in such actions as the common good requireth. Laws politic, ordained for external order and regiment amongst men, are never framed as they should be, unless presuming the will of man to be inwardly obstinate, rebellious, and averse from all obedience unto the sacred laws of his nature; in a word, unless presuming man to be in regard of his depraved mind little better than a wild beast, they do accordingly provide notwithstanding so to frame his outward actions, that they be no hindrance unto the common good for which societies are instituted: unless they do this, they are not perfect.
We all make complaint of the iniquity of our times: not unjustly; for the days are evil. But compare them with those times wherein there were no civil societies, with those times wherein there was as yet no manner of public regiment established, with those times wherein there were not above eight persons righteous living upon the face of the earth; and we have surely good cause to think that God hath blessed us exceedingly, and hath made us behold most happy days.
To take away all such mutual grievances, injuries, and wrongs, there was no way but only by growing unto composition and agreement amongst themselves, by ordaining some kind of government public, and by yielding themselves subject thereunto; that unto whom they granted authority to rule and govern, by them the peace, tranquillity, and happy estate of the rest might be procured. Men always knew that when force and injury was offered they might be defenders of themselves; they knew that howsoever men may seek their own commodity, yet if this were done with injury unto others it was not to be suffered, but by all men and by all good means to be withstood; finally they knew that no man might in reason take upon him to determine his own right, and according to his own determination proceed in maintenance thereof, inasmuch as every man is towards himself and them whom he greatly affecteth partial; and therefore that strifes and troubles would be endless, except they gave their common consent all to be ordered by some whom they should agree upon: without which consent there were no reason that one man should take upon him to be lord or judge over another; because, although there be according to the opinion of some very great and judicious men a kind of natural right in the noble, wise, and virtuous, to govern them which are of servile disposition; nevertheless for manifestation of this their right, and men’s more peaceable contentment on both sides, the assent of them who are to be governed seemeth necessary.
To fathers within their private families Nature hath given a supreme power; for which cause we see throughout the world even from the foundation thereof, all men have ever been taken as lords and lawful kings in their own houses. Howbeit over a whole grand multitude having no such dependency upon any one, and consisting of so many families as every politic society in the world doth, impossible it is that any should have complete lawful power, but by consent of men, or immediate appointment of God; because not having the natural superiority of fathers, their power must needs be either usurped, and then unlawful; or, if lawful, then either granted or consented unto by them over whom they exercise the same, or else given extraordinarily from God, unto whom all the world is subject. It is no improbable opinion therefore which the arch-philosopher was of, that as the chiefest person in every household was always as it were a king, so when numbers of households joined themselves in civil society together, kings were the first kind of governors amongst them. Which is also (as it seemeth) the reason why the name of Father continued still in them, who of fathers were made rulers; as also the ancient custom of governors to do as Melchisedec, and being kings to exercise the office of priests, which fathers did at the first, grew perhaps by the same occasion.
Howbeit not this the only kind of regiment that hath been received in the world. The inconveniences of one kind have caused sundry other to be devised. So that in a word all public regiment of what kind soever seemeth evidently to have risen from deliberate advice, consultation, and composition between men, judging it convenient and behoveful; there being no impossibility in nature considered by itself, but that men might have lived without any public regiment. Howbeit, the corruption of our nature being presupposed, we may not deny but that the Law of Nature doth now require of necessity some kind of regiment, so that to bring things unto the first course they were in, and utterly to take away all kind of public government in the world, were apparently to overturn the whole world.
The case of man’s nature standing therefore as it doth, some kind of regiment the Law of Nature doth require; yet the kinds thereof being many, Nature tieth not to any one, but leaveth the choice as a thing arbitrary. At the first when some certain kind of regiment was once approved, it may be that nothing was then further thought upon for the manner of governing, but all permitted unto their wisdom and discretion which were to rule; till by experience they found this for all parts very inconvenient, so as the thing which they had devised for a remedy did indeed but increase the sore which it should have cured. They saw that to live by one man’s will became the cause of all men’s misery. This constrained them to come unto laws, wherein all men might see their duties beforehand, and know the penalties of transgressing them.
And because the greatest part of men are such as prefer their own private good before all things, even that good which is sensual before whatsoever is most divine; and for that the labour of doing good, together with the pleasure arising from the contrary, doth make men for the most part slower to the one and proner to the other, than that duty prescribed them by law can prevail sufficiently with them: therefore unto laws that men do make for the benefit of men it hath seemed always needful to add rewards, which may more allure unto good than any hardness deterreth from it, and punishments, which may more deter from evil than any sweetness thereto allureth. Wherein as the generality is natural, virtue rewardable and vice punishable; so the particular determination of the reward or punishment belongeth unto them by whom laws are made. Theft is naturally punishable, but the kind of punishment is positive, and such lawful as men shall think with discretion convenient by law to appoint.
Laws do not only teach what is good, but they enjoin it, they have in them a certain constraining force. And to constrain men unto any thing inconvenient doth seem unreasonable. Most requisite therefore it is that to devise laws which all men shall be forced to obey none but wise men be admitted. Laws are matters of principal consequence; men of common capacity and but ordinary judgment are not able (for how should they?) to discern what things are fittest for each kind and state of regiment.
Howbeit laws do not take their constraining force from the quality of such as devise them, but from that power which doth give them the strength of laws. That which we spake before concerning the power of government must here be applied unto the power of making laws whereby to govern; which power God hath over all: and by the natural law, whereunto he hath made all subject, the lawful power of making laws to command whole politic societies of men belongeth so properly unto the same entire societies, that for any prince or potentate of what kind soever upon earth to exercise the same of himself, and not either by express commission immediately and personally received from God, or else by authority derived at the first from their consent upon whose persons they impose laws, it is no better than mere tyranny.
Laws they are not therefore which public approbation hath not made so. But approbation not only they give who personally declare their assent by voice sign or act, but also when others do it in their names by right originally at the least derived from them. As in parliaments, councils, and the like assemblies, although we be not personally ourselves present, notwithstanding our assent is by reason of others agents there in our behalf. And what we do by others, no reason but that it should stand as our deed, no less effectually to bind us than if ourselves had done it in person.
Of this point therefore we are to note, that sith men naturally have no full and perfect power to command whole politic multitudes of men, therefore utterly without our consent we could in such sort be at no man’s commandment living. And to be commanded we do consent, when that society whereof we are part hath at any time before consented, without revoking the same after by the like universal agreement. Wherefore as any man’s deed past is good as long as himself continueth; so the act of a public society of men done five hundred years sithence standeth as theirs who presently are of the same societies, because corporations are immortal; we were then alive in our predecessors, and they in their successors do live still. Laws therefore human, of what kind soever, are available by consent.
XII. The cause why so many natural or rational laws are set down in holy scripture.
The first principles of the Law of Nature are easy; hard it were to find men ignorant of them. But concerning the duty which Nature’s law doth require at the hands of men in a number of things particular, so far hath the natural understanding even of sundry whole nations been darkened, that they have not discerned no not gross iniquity to be sin. Again, being so prone as we are to fawn upon ourselves, and to be ignorant as much as may be of our own deformities, without the feeling sense whereof we are most wretched, even so much the more, because not knowing them we cannot so much as desire to have them taken away: how should our festered sores be cured, but that God hath delivered a law as sharp as the two-edged sword, piercing the very closest and most unsearchable corners of the heart, which the Law of Nature can hardly, human laws by no means possible, reach unto? Hereby we know even secret concupiscence to be sin, and are made fearful to offend though it be but in a wandering cogitation. Finally, of those things which are for direction of all the parts of our life needful, and not impossible to be discerned by the light of Nature itself; are there not many which few men’s natural capacity, and some which no man’s, hath been able to find out? They are, saith St. Augustine, but a few, and they endued with great ripeness of wit and judgment, free from all such affairs as might trouble their meditations, instructed in the sharpest and the subtlest points of learning, who have, and that very hardly, been able to find out but only the immortality of the soul. The resurrection of the flesh what man did ever at any time dream of, having not heard it otherwise than from the school of Nature? Whereby it appeareth how much we are bound to yield unto our Creator, the Father of all mercy, eternal thanks, for that he hath delivered his law unto the world, a law wherein so many things are laid open, clear, and manifest, as a light which otherwise would have been buried in darkness, not without the hazard, or rather not with the hazard but with the certain loss, of infinite thousands of souls most undoubtedly now saved.
We see, therefore, that our sovereign good is desired naturally; that God the author of that natural desire had appointed natural means whereby to fulfil it; that man having utterly disabled his nature unto those means hath had other revealed from God, and hath received from heaven a law to teach him how that which is desired naturally must now supernaturally be attained. Finally, we see that because those latter exclude not the former quite and clean as unnecessary, therefore together with such supernatural duties as could not possibly have been otherwise known to the world, the same law that teacheth them, teacheth also with them such natural duties as could not by light of Nature easily have been known.
XVI. A Conclusion
Let us place man in some public society with others, whether civil or spiritual; and in this case there is no remedy but we must add yet a further law. For although even here likewise the laws of nature and reason be of necessary use, yet somewhat over and besides them is necessary, namely human and positive law, together with that law which is of commerce between grand societies, the law of nations, and of nations Christian. For which cause the law of God hath likewise said, “Let every soul be subject to the higher powers.” The public power of all societies is above every soul contained in the same societies. And the principal use of that power is to give laws unto all that are under it; which laws in such case we must obey, unless there be reason shewed which may necessarily enforce that the law of Reason or of God doth enjoin the contrary. […]
 “All that happens in created things is subject to the eternal law.” Summ. Theol. IaIIae q. 93 a. 5. “Nothing in any way evades the laws and command of the supreme Creator, by whom the peace of the universe is administered.” Augustine de Civ. Dei xix.12. Even sin, to the extent that it is justly permitted by God, falls under the eternal law. For sin is even subject to the eternal law, to the extent that the voluntary transgression of the law brings about a certain punitive harm in the soul, as Augustine says: “Thou hast commanded, Lord, and so it is, that every disorderly soul should be a punishment unto itself.” Confessions i.12.19. Nor was it badly said by the Schoolmen that “Inasmuch as we see that natural things, when they depart from their particular end and so from the natural law, are subject to the same natural law, inasmuch as they pursue another end that was also established for them by the eternal law in this particular case; so it is similarly that men, even when they sin and fall away from the eternal law as teaching, they fall back into the order of the eternal law as punishing.”
 “There cannot be error when all believe the same.” Montecatini’s commentary on the Politics. “Whatever is in all individuals of one species, that must be held as a common cause which is the species and nature of those individuals.” Ibid. “Whatever is the case with the whole of any species, is so by an instinct of universal and particular nature.” Ficino, de Christ. Rel. I. “If you wish to attain mastery, begin by considering that as firmly true, which the sound mind of all men bears witness to.” Nicholas of Cusa, Compendium, I. “One may not consider the natural and universal judgment of men to be false and vain,” Telesius, De rerum natura. “Ὃ γὰρ πᾶσι δοκεῖ, τοῦτ᾽ εἶναί φαμεν. ὁ δ᾽ ἀναιρῶν ταύτην τὴν πίστιν οὐ πάνυ πιστότερα ἐρεῖ. [For we say that which everyone thinks to be true, and the man who attacks this belief will hardly say anything more credible.]” Aristotle, Nich. Eth. x.2 [1173a1].
 Rom. 2:14.
 “Οὐδεὶς θεὸς δύσνους ἀνθρώποις. [No god is unkind to men.]” Plato, Theaetetus [151d].
 “Ὅ τε γὰρ Θεὸς δοκει̑ τὸ αἴτιον πα̑σιν εἶναι καὶ ἀρχή τις. [For God seems to be the cause of everything and a sort of principle.]” Aristotle, Metaphysics i.2 [983a8].
 “Ἔστι γὰρ ὃ μαντεύονταί τι πάντες, φύσει κοινὸν δίκαιον καὶ ἄδικον, κἂν μηδεμία κοινωνία πρὸς ἀλλήλους ᾖ μηδὲ συνθήκη. [For all men divine a common idea of justice and injustice by nature, even if there is no communication nor agreement among them.]” Aristotle, Rhetoric i.13 [1373b].
 2 Pet. 2:5.
 Aristotle, Politics III and IV.
 Aristotle, Politics I.2 See also Plato Laws, III.
 “For when the poor commonalty were oppressed by those of greater wealth, they had recourse to some one man pre-eminent in virtue, who, while he defended the poorer classes from wrong, by establishing equitable jurisdiction kept the highest under the same legal obligations with the lowest. […] But when this ceased to be the case, laws were invented.” Cicero, De officiis, ii.12.
 Josephus, contra Apionem, II.38: “And why do not the Lacedemonians think of abolishing that form of their government which suffers them not to associate with any others, as well as their contempt of matrimony? And why do not the Eleans and Thebans abolish that unnatural and impudent lust, which they of old thought to be very excellent and advantageous? And when they had done these things, they even mixed them into their laws.” Summ. Theol. IaIIae q. 94 a. 4: “The natural law was so corrupted among the Germans, that they did not think theft was a sin.” Augustine, or whoever the author is of the book of questions on the Old and New Testament: “Who does not know what is conducive to a good life, or is ignorant that he ought not do to others what he would not have done to himself? But when the natural law has faded away under an oppressive custom of wickedness, it was then necessary to make it clear by the scriptures, so that all might hear it; not because it had been completely wiped out, but because they lacked its greatest authority, they were eager for idolatry, the fear of God was not on earth, fornication was practiced, and there was greedy concupiscence for the things of one’s neighbor. Therefore the law was given, so that what was known might have authority, and that which had begun to be hidden might be made clear.” (Q. 4)
 Heb. 4:12
 de Trinitate, xiii.12
 Rom. 13:1.