had been disloyally slain, when at peace with God and man. I am hurt in
mind for having been too lenient towards him; and if thou dost not
punish him for these two crimes, thou wilt cause the damnation of his
soul.’
‘I must here remark, that there is no knight so perfect but who may
commit a fault, and one indeed so great as to do away all his former
good actions. And therefore men do not at justs and at battles cry out,
‘The brave for ever!’ (_Aux preux!_) but men always cry out, ‘The sons
of the brave!’ (_Aux fils de preux!_) after the deaths of their fathers.
For no knight can be judged _preux_ (valiant, or brave) till after his
death[121].
‘My third instance shall be of Athalia, queen of Jerusalem, of whom the
holy Scriptures say,—‘Athalia vero mater regis Ochosiæ, videns filium
suum mortuum surrexit et interfecit omne semen regium. Tollens autem
Josaba filia regis Joran et soror Ochosiæ Joas filium Ochosiæ furata est
eum de medio filiorum regis qui interficiebantur et nutricem ejus de
triclinio et abscondit eum a facie Athaliæ ut non interficeretur,’ &c. 4
Reg. xi.
‘Which, being translated, means, That the wicked Athalia, observing king
Ochosias, her son, was dead, and had left but very young children to
succeed him, through lust of governing the kingdom, slew all the king’s
children excepting Joas, who, through the courage of a valiant lady,
inspired thereto by the grace of God, was carried away from his cradle,
and sent by her secretly to the high priest, who educated him until he
was seven years old.
‘This wicked queen reigned tyrannically for seven years, when the
high-priest had her put to death by those who lay in wait for the
purpose. He then caused the young child to be anointed king, who,
notwithstanding his youth, being only seven years of age, governed his
kingdom excellently well, through the advice of the high-priest and
other prudent counsellors. The holy Scriptures say, ‘Joas regnavit 40.
annis in Hierusalem fecitque rectum coram Domino cunctis diebus quibus
docuit eum Joiada sacerdos.’
‘Thus you have the third example, which shows how the concupiscence of
vain honours is nothing more than a disorderly passion, to take by force
the possessions of another. This it was that made queen Athalia a
murderess, false and disloyal, and induced her to obtain, by a
succession of crimes, the government of the kingdom of Jerusalem.
‘You have heard how she was privily slain by such as lay in wait for
her, which is a lawful manner of slaying tyrants, and is the death which
all such ought to suffer.—With this I conclude the third article of my
major.
‘I come now to my fourth article; to which I propose adding eight facts,
by way of conclusion, and eight others as corollaries, the stronger to
lay my foundation for the justification of my aforesaid lord of
Burgundy. I shall first lay it down as law, that any subject-vassal, who
by an artful desire of obtaining the realm of his sovereign lord and
king, shall employ any witchcraft, or other illegal means, against his
corporal safety, sins most grievously, and commits the crime of high
treason, in the first degree, and, consequently, is deserving a double
death.
‘I secondly prove my proposition, by adding, that any subject-vassal who
is an enemy to his sovereign lord sins mortally. My conclusion is
therefore true,—and that he is a tyrant I shall prove by my lord St
Gregory, who says:
‘Tyrannus est proprie qui non dominus reputatur.
Non juste principatur; aut non principatu decoratur.
Nam sicut regnum rectus principatus dicitur.
Sic dominium perversum tyrannis nuncupatur.’
‘It appears plain, that whoever commits the crime of high treason
against the person of the prince is guilty of the highest possible
offence, and is deserving of a double death. By the first death, I mean
the separation of the body from the soul, which causes a perdurable
damnation; for St John the evangelist says, ‘Qui vivit non morietur nec
lædetur a morte secunda;’ that is to say, That every human creature who
shall obtain a victory over Covetousness and her three daughters, need
not be afraid of the second death, namely, eternal damnation.
‘The second fact is, that in cases where a subject-vassal has been
guilty of this crime, he cannot be too severely or too speedily
punished; but a man of rank is more deserving of punishment than a
simple subject, a baron than a simple knight, a count than a baron, a
duke than a count, the cousin to the king than a foreigner, the king’s
brother than a cousin, the son to the king than his brother. Such is the
first part of the second fact,—and I thus prove the second part; for as
the obligation is greater, by many degrees, to desire to preserve the
safety of the king’s person and the good of the state, so the punishment
of those who act contrary increases according to their rank; and the
consequence I draw from it will prove true, namely, that the son is more
bounden than the brother, the brother than the cousin, a duke than a
count, a count than a baron, a baron than a knight, &c. to guard and
preserve the honour of the king and the welfare of the realm; for to
each of these ranks and dignities is a certain corresponding duty
attached,—and the higher the rank, the greater the obligation, for the
larger the possessions, and the more noble the person, the more he is
bounden, as St Gregory, before quoted, says, ‘Cum crescunt dona et
rationes donorum.’
‘To continue my argument: the nearer the person is to the king by blood
or hereditary honours, should he commit such crimes, it is by far more
scandalous than if they were done by others removed at a greater
distance from royalty. It is more scandalous for a duke or a potent
lord, nearly related to the king, to practise his death, in order to
gain his kingdom, than it would be for a poor subject no way related to
the king; and being more iniquitous, the more deserving punishment.
‘I shall, in the third place, prove my proposition by saying, Where
there is greater danger there should be a greater degree of punishment;
for the machinations of near relations to the king are of far more
importance and more perilous than those of poor people. And as they are
more dangerous, they are deserving of severer punishment to obviate the
perils that may happen, and to check the desires that may arise in such
as are so near to the crown, to gain possession of it. For this end,
they may exert every influence, by force or otherwise, to grasp it,
which a poorer subject would never think of doing, as he could not have
any expectations of wearing it.
‘My third truth is, That it is lawful for any subject, without any
particular orders from any one, but from divine, moral and natural law,
to slay, or to cause to be slain, such disloyal traitors; I say it is
not only lawful for any one to act thus in such cases, but it is also
meritorious and highly honourable, particularly when the person is of
such high rank that justice cannot be executed by the sovereign himself.
I shall prove this truth by twelve reasons, in honour of the twelve
Apostles.
‘The three first reasons are drawn from the authorities of three moral
philosophers: three others are from three dogmas of sacred theology of
St Augustin, who says, in the last part of the second book of sentences,
‘Quando aliquis dominium sibi per violentiam surripit nolentibus
subditis, vel etiam ad consensum coactis: et non est recursus ad
superiorem per quem de tali judicium posset fieri. Talis enim qui ad
liberationem patriæ talem tirannum occidit, laudem et præmium accissit.
Hic primum laudatur. Item debet laudari per quæ facit opus dignum laude.
Idem licitum præmium et honorabile accipit, et idem debet accipere. Ille
facit opus meritorium quia nullum opus est dignum, primo nisi fieret
meritorium.’ To translate this briefly, the holy doctor declares, that a
subject who shall put to death such a tyrant does a work deserving
praise and remuneration.
‘My second authority is as follows: ‘Salisberiensie, sacræ theologiæ
eximii doctoris in libro suo Policratici, li. ii. cap. 15. Sic dicit;
amico adulari non licet; sed aurem tiranni mulcere licitum est, ei
namque scilicet tiranno licet adulari quem licet occidere;’ that is to
say, It is unlawful to flatter a friend, but not so to deceive by fair
words the ears of a tyrant; for since it is lawful to put him to death,
it is allowable to cheat him by flattering speeches.
‘My third authority is from several doctors, whom I class together, not
to exceed the number of three, namely, ‘Ricardi de media villa,
Alexandri de Hallis et Astensis, in summa qui conclusionem præfatam
ponunt in iii. efforum;’ adding, for higher authority, the confirmation
of St Peter the apostle, who says, ‘Subditi estote regi quasi
præcellenti sive ducibus, tanquam ab eo missis ad vindictam
malefactorum, audem vero bonorum, quia sic est voluntas Dei.’ Scribitur
primæ Pet. ii. That is to say, It is the will of God that all should
obey the king, as sovereign lord over his kingdom; and the duke, as
being sent by the king to punish those who have done ill, and remunerate
the good.
‘Hence it follows, that dukes are obliged, to the utmost of their power,
to avenge the injuries that are done, or may be intended against the
king’s person, and to oppose all such attempts as may come to their
knowledge.
‘I now proceed to the authorities from moral philosophers, the first of
which is,—‘Ante forum principis pluribus locis cuilibet subditorum
licitum est occidere tyrannum, et non solum licitum immo laudabile.’
That is to say, It is lawful for any subject to destroy a tyrant, and
not only lawful, but even honourable and worthy of praise.
‘Cicero, in libro de Officiis, ‘Laudatis illos qui illum Cæsarem
interfecerunt quamvis esset sibi familiarium amicus eo quod jura imperii
quasi tyrannus usurpaverat.’ That is, Tully writes, in his noble book on
morality, That those who killed Julius Cæsar are praiseworthy, because
Julius had usurped the government of Rome as a tyrant.
‘My third authority is from Boccacio, who, in his book ‘de Casibus
virorum illustrium, s. lib. ii. cap. 15. contra filios tyrannorum,’ in
speaking of the tyrant, says, ‘Shall I call him king? shall I call him
prince? shall I preserve my allegiance to him? Oh no: he is an enemy to
the public welfare. May I employ conspiracies and open force against
him? It is very proper and necessary so to do,—for there is not a more
agreeable sacrifice than the blood of a tyrant, and it is insupportable
to receive blame for having done good.’
‘I come now to my three authorities from the civilians. As I am no
lawyer, it will suffice if I mention the judgments that have been given
without producing them; for in my life I never studied the canon nor
civil law more than two years, and twenty years have passed since that
time, so that what little I may have learnt I have quite forgotten since
the period of my studies.
‘The first authority of the civil law is, That any one may put to death
deserters from the laws of chivalry; and who can be a greater deserter
from chivalry than him who deserts the person of his king, the fountain
of chivalry, and without whom it cannot long exist?
‘Secondly, It is lawful for every one to kill thieves and robbers, who
infest forests and rob on the highways,—because they are particularly
the enemies of the public weal, and consequently plotting to destroy all
travellers: consequently, it is lawful to kill a tyrant, who is
continually practising against his king, the sovereign lord, and against
the public good.
‘Thirdly, If it be lawful for any one by the civil and imperial law to
put to death a thief found by night in a house, it is much more so to
slay a tyrant, who day and night devises the death of his sovereign
lord. This consequence clearly follows, and will be apparent to any man
of sound understanding, if he consider it, and the antecedent texts from
holy writ.
‘Before I touch on the three examples from the holy Scriptures, I wish
to reply to some objections that may be made to what I say, in arguing
thus: All murder is forbidden by every law, divine, natural, moral and
civil. Whatever may be said to the contrary, I shall prove it from
Scripture: ‘Non occides,’ in Joh. xx. is one of the divine commandments,
which forbids any kind of murder. That it is forbidden by the natural
law, I prove by this quotation,—‘Natura enim inter homines quandam
cognationem constituit qua hominem homini insidiari nefas est.’
‘I prove it forbidden by the moral law, from ‘Quia per id: hoc non
facias aliis quod tibi non vis fieri: alterum non lædere; jus suum
unicuique tribuere: hoc est morale, insuper et de naturali jure.’
‘That the civil and imperial laws forbid murder, those laws shall prove,
‘Qui hominem occidit capite puniatur, non habita differentia sexus vel
conditionis. Item omne bellum omnis usus armorum vitiosus præcipue
prohibitus est: nam qui vitio præcipue bellum gerit, læsæ majestatis
reus est. Item regis proprium furta cohibere, adulteria punire, ipsos de
terra perdere: qui enim talia sibi appropriat aut usurpat, principem
injuriatur et lædit: quoniam ut dicit lex judiciorum vigor: juris et
publica tutela in medio constituta est, ne quis de aliquo quantumcunque
sceleribus implicito assumere valeat ultionem.’
‘To reply to the above arguments: It should be known that theologians
and jurists use diversely this word _homicidium_; but, notwithstanding,
they agree in the same opinion respecting the thing. The theologians
say, that to kill a man lawfully is not homicide, for the word
_homicidium_ carries with it ‘quod sit justum propter hoc dicunt quod
Moyses, Phinees, et Mathathias non commiserunt homicidia quia juste
occiderunt;’ but some jurists say, that killing of a man, just or
unjust, is homicide,—while others deny it, saying there are two modes of
homicide, legal and illegal; and for justifiable homicide no man ought
to be punished.
‘I answer, therefore, with the theologians, that the killing of a tyrant
is not homicide, inasmuch as it is just and legal. According to the
general law, I confess it would be homicide; but if there be shewn
justifiable cause for it, no punishment, but remuneration, should
follow.
‘With regard to that part of the argument which says, ‘Quod hominem
homini insidiari nefas est, et quæ magis insidiatur homini,’ &c. it
alludes to a tyrant who is continually practising the death of his king
and sovereign lord. ‘Et homo est nefas, et perditio, et iniquitas.’ As
for him who slays a man, by watching a proper opportunity for it, to
save the life of his king, and preserve him from mortal peril, he does
no ‘nefas,’ but acquits himself of his duty toward his sovereign lord.
‘Et homo est nefas, et perditio, et iniquitas;’ and therefore he who
kills such an one, by watching a proper opportunity, does it to save the
life of his king.
‘In regard to that passage which says, ‘Non facias aliis, &c. alterum
non lædere,’ &c. I reply, that it makes against the tyrant, and in
favour of him who slays him; for he (the tyrant) does against his king
that which he would not have to be done against himself, ‘et ipsum regem
injuriatur et lædit.’ For which reason, he who has put to death such a
person, according to his deserts, has done nothing contrary to the laws,
but has preserved the meaning of them, namely, true equity and loyalty
towards his king and sovereign lord.
‘To the other quotation from the laws that says, ‘Hominem occidere,
capitale esse omnis usus armorum,’ &c. I answer, that there are no laws
nor usages so very general but that there may be some exceptions made
from them. I say, that the case of killing a tyrant is exempted, more
especially when he is guilty of the crimes before mentioned. How can any
greater cause of exemption be shewn than that, when the murder is done
through necessity, to save the king from being put to death?
‘Even when conspiracies against his royal person have been so far
carried by witchcraft and otherwise, that he is disabled from
administering justice; and the tyrant being found deserving of that
punishment, the king, from weakness of intellect, cannot, or will not,
punish him, the killing of him, in such cases, is not against the law,
properly speaking, for all laws have two meanings: the first is the
textual signification, the other is the ‘quo animo,’—the person
committing a crime has done it, and the law, as intended by those who
made it, is to be explained according to the intent of its framers, and
not always according to the literal sense.
‘Thus the philosopher brings forward the example of citizens who made a
law for the defence of their city, that no one, under pain of death,
should mount the ramparts, because their city was besieged; and they
were afraid, should strangers mount the walls with the inhabitants,
there might arise danger to them, from these strangers, at a proper
opportunity, joining their enemies, or at least making them signs to
show where they might the more easily attack the town.
‘It happened, that this town was attacked at several places,—when the
strangers and pilgrims who were within it, observing the enemy were much
superior to the inhabitants, armed themselves and mounted the walls at
the weaker parts, when they repulsed the enemy, and saved the town. The
philosopher then asks, Since these pilgrims have mounted the walls
contrary to the express words of the law, they have infringed it, and
should they not be punished? I say no; for although they have acted
contrary to the literal text of the law, they have not disobeyed the
spirit of it, which was the saving of the town,—for had they not mounted
the walls in its defence, it must have been taken.
‘As to the laws which declare, that none ought to administer justice but
the prince, nor do any deeds of arms without his licence,—I maintain,
that these laws were made for the preservation of the king’s honour and
person, and for the public good.
‘Should there exist a tyrant of great power and authority, who is
continually practising, by witchcraft and other means, the death of the
king, and to deprive him of his kingdom,—and should that king, from
weakness of intellect or want of force, be unable to punish him, and
should he permit him to go on in his wickedness,—I should disregard, in
this case, the law that forbids me to bear arms without the king’s
licence, or to take the authority into my own hands in a general sense
only. What have I to do with the literal sense of it? Am I to leave my
king in such peril? By no means. I am bound to defend my king, and put
to death the tyrant; for should I, by thus acting, do contrary to the
text of the law, I follow the spirit of it, and the object it was
directed to, namely, the preservation of the honour and life of my king;
and I should think myself more deserving of praise than if I had
suffered the tyrant to live on in his wickedness. I ought therefore to
be rewarded, and not punished, for having done a meritorious deed,
tending to a good purpose, for which end all laws were made.
‘St Paul says, ‘Littera occidit, charitas autem ædificat;’ which means,
that to follow the literal sense of the holy Scriptures is death to the
soul, but that we ought to obey the true meaning in all charity,—that is
to say, to mark and accomplish the end for which the divine laws were
made. Spiritual edification is a goodly thing.
‘Item, the laws divine, natural and human, give me authority for so
doing, and by so doing I am a minister of the divine law; and it is
plain, that the objections I have started, as probably to be made
against what I have said, are not of any weight.
‘I come now to my three instances from the holy Scriptures, to confirm
the truth of my third fact. In the first place, Moses, without any
authority whatever, slew the Egyptian who tyrannised over the
Israelites.
‘At this period, Moses had no authority to judge the people of Israel,
for this power was not given to him until forty years after the
perpetration of this act. Moses, however, was much praised for having
done it. ‘Ut patet auctoritate, Exodi ij. quia tanquam minister legis
hoc facit. Ita in proposito in hoc faciendo ego ero minister legis.’
‘The second instance is that of Phineas, who, without any orders, slew
the duke Zambry, as has been related. Phineas was not punished for this,
but on the contrary praised, and greatly requited in affection, honour
and riches. In the affection that God shewed him, greater than before.
In honour, ‘Quia reputatum est ei ad justiciam,’ &c. In riches, ‘Quia
per hoc acquisivit actum sacerdotii sempiternum non tantum pro se, sed
pro tota tribu sua.’
‘The third instance is that of St Michael the archangel, who, without
waiting for any commands from GOD, or others, but solely from his
natural love, killed the disloyal traitor to his God and Sovereign
Lord,—because Lucifer was conspiring to invade the sovereignty and
honour of GOD. St Michael was rewarded for his action in love, honour
and wealth. In love, in that GOD had a stronger affection for him than
any other, and confirmed him in his love and grace. In honour, ‘Quia
fecit eum militiæ cœlestis principum in æternum.’ That is to say, He
made him the prince of his angelic chivalry for ever. In wealth, for he
gave him riches and glory to his satisfaction: ‘Tantum quantum erat
capax, de quibus loquitur. O altitudo divitiarum sapientiæ et scientiæ
Dei, quam incomprehensibilia sunt judicia ejus, et investigabiles viæ
ejus.’ Ad. Rom. xi.
‘Thus my third fact has been proven by twelve reasons. The fourth is,
That it is more meritorious, honourable and legal, that a tyrant should
be slain by one of the king’s relations than by a stranger no way
connected with him by blood,—by a duke than by a count,—by a baron than
by a simple knight, and by a knight than by a common subject.
‘I thus prove my proposition. He who is related to the king has an
interest to guard his honour and life against every injurious attempt,
and is bounden so to do more than any stranger, and, in like manner,
descending from those of high rank to the common subject. Should he fail
in this his duty, the more deserving is he of punishment, while, on the
contrary, by performing it, he gains the greater honour and renown.
‘Item in hoc magis relucent amor et obedientia occisoris, vel occidere
præcipientis ad principem et dominum suum quia est magis honorabile si
fuerit præpotens dux vel comes. Item in hoc magis relucet potentia regis
quod est honorabile et quanto occisor vel dictæ occisionis præceptor non
fuerit vilior et potentior tanto magis,’ &c.
‘In regard to alliances, oaths, promises and confederations, made
between one knight and another, in whatever manner they be, should they
be intended to the prejudice of the prince or his children, or the
public welfare, no one is bound to keep them; for, in so doing, he would
act contrary to the laws, moral, natural and divine. I shall now prove
the truth of this: ‘Arguendo sic. Bonam æquitatem (dictamen rectaæ
rationis) et legem divinam boni principes in persona publica servare, et
utilitatem reipublicæ debent præferre, et præsupponere in omnibus
talibus promissionibus, juramentis, et confederationibus: immo
excipiuntur implicite secundum dictamen rectæ rationis: bonam æquitatem
et charitatis ordinem quia alias esset licitum non obedire principi immo
rebellare contra principes, quod est expresse contra sacram Scripturam
quæ sic dicit: ‘Obedite principibus vestris, licet etiam discolis et
alibi. Subjecti estote regi præcellenti, sive judicibus tanquam ab eo
missis ad vindictam malefactorum, laudem vero bonorum.’ 1 Pet. iij. ut
sup. allegatum est.