[339] Lib. ii., c. 2, § 3.
His opinion of law. 48. Suarez maintains it to be of the essence of a law that it be exacted for the public good. An unjust law is no law, and does not bind the conscience.[340] In this he breathes the spirit of Mariana. But he shuns some of his bolder assertions. He denies the right of rising in arms against a tyrant, unless he is an usurper; and though he is strongly for preserving the concession made by the kings of Spain to their people, that no taxes shall be levied without the consent of the Cortes, does not agree with those who lay it down as a general rule, that no prince can impose taxes on his people by his own will.[341] Suarez asserts the direct power of the church over heretical princes, but denies it as to infidels.[342] In this last point, as has been seen, he follows the most respectable authorities of his nation.
[340] Lib. i., c. 7, and lib. iii., c. 22.
[341] Lib. iii., c. 10.
[342] Lib. v., c. 17.
49. Bayle has taken notice of a systematic treatise on Politics, by John Althusius, a native of Germany. Of this I have only seen an edition published at Groningen in 1615, and dedicated to the states of West Friesland. It seems, however, from the article in Bayle, that there was one printed at Herborn in 1603. Several German writers inveigh against this work as full of seditious principles, inimical to every government. It is a political system, taken chiefly from preceding authors, and very freely from Bodin; with great learning, but not very profitable to read. The ephori, as he calls them, by which he means the estates of a kingdom, have the right to resist a tyrant. But this right he denies to the private citizen. His chapter on this subject is written more in the tone of the sixteenth than of the seventeenth century, which indeed had scarcely commenced.[343] He answers in it Albericus Gentilis, Barclay and others who had contended for passive obedience, not failing to draw support from the canonists and civilians whom he quotes. But the strongest passage is in his dedication to the States of Friesland. Here he declares his principle, that the supreme power or sovereignty (jus majestatis) does not reside in the chief magistrate, but in the people themselves, and that no other is proprietor or usufructuary of it, the magistrate being the administrator of this supreme power, but not its owner, nor entitled to use it for his benefit. And these rights of sovereignty are so much confined to the whole community, that they can no more alienate them to another, whether they will or not, than a man can transfer his own life.[344]
[343] Cap. 38. De tyrannide et ejus remediis.
[344] Administratorem, procuratorem, gubernatorem jurium majestatis, principem agnosco. Proprietarium vero et usufructuarium majestatis nullum alium quam populum universum in corpus unum symbioticum ex pluribus minoribus consociationibus consociatum, &c.
50. Few, even among the Calvinists, whose form of government was in some cases republican, would in the seventeenth century have approved this strong language of Althusius. But one of their noted theologians, Paræus, incurred the censure of the university of Oxford in 1623, for some passages in his commentary on the Epistle to the Romans which seemed to impugn their orthodox tenet of unlimited submission. He merely holds that subjects, when not private men but inferior magistrates, may defend themselves and the state and the true religion even by arms against the sovereign under certain conditions; because, these superior magistrates are themselves responsible to the laws of God and of the state.[345] It was, in truth, impossible to deny the right of resistance in such cases without “branding the unsmirched brow” of protestantism itself; for by what other means had the reformed religion been made to flourish in Holland and Geneva, or in Scotland? But in England, where it had been planted under a more auspicious star, there was little occasion to seek this vindication of the protestant church, which had not, in the legal phrase, come in by disseizin of the state, but had united with the state to turn out of doors its predecessor. That the Anglican refugees under Mary were ripe enough for resistance, or even regicide, has been seen in the last volume by an extract from one of their most distinguished prelates.
[345] Subditi non privati, sed in magistratu inferiori constituti adversus superiorem magistratum se et rempublicam et ecclesiam seu veram religionem etiam armis defendere jure possunt, his positis conditionibus: 1. Cum superior magistratus degenerat in tyrannum; 2. Aut ad manifestam idololatriam atque blasphemias ipsos vel subditos alios vult cogere; 3. Cum ipsis atrox infertur injuria; 4. Si aliter incolumes fortunis vita et conscientia esse non possint; 5. Ne prætextu religionis aut justitiæ sua quærant; 6. Servata semper επιεικειᾳ et moderamine inculpatæ tutelæ juxta leges. Paræus in Epist. ad Roman, col. 1350.