[364] C. 3.
[365] Summa potestas illa dicitur, cujus actus alterius juri non subjacet, ita ut alterius voluntatis humanæ arbitrio irriti possint reddi. § 7.
Resistance by subjects unlawful. 91. Grotius rejects the opinion of those who hold the people to be everywhere sovereign, so that they may restrain and punish kings for misgovernment; quoting many authorities for the irresponsibility of kings. Here he lays down the principles of non-resistance, which he more fully inculcates in the next chapter. But this is done with many distinctions as to the nature of the principality, which may be held by very different conditions. He speaks of patrimonial kingdoms, which, as he supposes, may be alienated like an inheritance. But where the government can be traced to popular consent, he owns that this power of alienation should not be presumed to be comprised in the grant. Those, he says, are much deceived who think that in kingdoms where the consent of a senate or other body is required for new laws, the sovereignty itself is divided; for these restrictions must be understood to have been imposed by the prince on his own will, least he should be entrapped into something contrary to his deliberate intention.[366] Among other things in this chapter, he determines that neither an unequal alliance, that is, where one party retains great advantages, nor a feudal homage take away the character of sovereignty, so far at least as authority over subjects is concerned.
[366] § 18.
92. In the next chapter, Grotius dwells more at length on the alledged right of subjects to resist their governors, and altogether repels it, with the exception of strict self-defence, or the improbable case of a hostile spirit, on the prince’s part, extending to the destruction of his people. Barclay, the opponent of Buchanan and the Jesuits, had admitted the right of resistance against enormous cruelty. If the king has abdicated the government, or manifestly relinquished it, he may, after a time, be considered merely a private person. But mere negligence in government is by no means to be reckoned a relinquishment.[367] And he also observes, that if the sovereignty be divided between a king and part of his subjects or the whole, he may be resisted by force in usurping their share, because he is no longer sovereign as to that; which he holds to be the case, even if the right of war be in him, since that must be understood of a foreign war, and it could not be maintained that those who partake the sovereignty have not the right to defend it; in which predicament a king may lose even his own share by the right of war. He proceeds to the case of usurpation; not such as is warranted by long prescription, but while the circumstances that led to the unjust possession subsist. Against such an usurper he thinks it lawful to rebel, so long as there is no treaty or voluntary act of allegiance, at least if the government de jure sanctions the insurrection. But where there may be a doubt whether the lawful ruler has not acquiesced in the usurpation, a private person ought rather to stand by possession, than to take the decision upon himself.[368]
[367] Si rex aut alius quis imperium abdicavit, aut manifeste habet pro derelicto, in eum post id tempus omnia licent, quæ in privatum. Sed minimè pro derelicto habere rem censendus est, qui eam tractat negligentius. C. 4, § 9.
[368] § 20.
All men naturally have right of war. 93. The right of war, which we must here understand in the largest sense, the employment of force to resist force, though by private men, resides in all mankind. Solon, he says, taught us that those commonwealths would be happy, wherein each man thought the injuries of others were like his own.[369] The mere sociability of human nature ought to suggest this to us. And, though Grotius does not proceed with this subject, he would not have doubted that we are even bound by the law of nature, not merely that we have a right, to protect the lives and goods of others against lawless violence, without the least reference to positive law or the command of a magistrate. If this has been preposterously doubted, or affected to be doubted, in England of late years, it has been less owing to the pedantry which demands an express written law upon the most pressing emergency, than to lukewarmness, at the best, in the public cause of order and justice. The expediency of vindicating these by the slaughter of the aggressors must depend on the peculiar circumstances; but the right is paramount to any positive laws, even if, which with us is not the case, it were difficult to be proved from them.
[369] Εν ᾑ των αδικουμενων ουχ ἡττον οἱ μη αδικουμενοι προβαλλονται και κολαζουσι τους αδικουντας. Ut cætera desint vincula, sufficit humanæ naturæ communio.
Right of self-defence. 94. We now arrive at the first and fundamental inquiry, what is the right of self-defence, including the defence of what is our own. There can, says Grotius, be no just cause of war (that is, of using force, for he is now on the most general ground) but injury. For this reason he will not admit of wars to preserve the balance of power. An imminent injury to ourselves or our property renders repulsion of the aggressor by force legitimate. But here he argues rather weakly and inconsistently through excess of charity, and acknowledging the strict right of killing one who would otherwise kill us, thinks it more praiseworthy to accept the alternative.[370] The right of killing one who inflicts a smaller personal injury he wholly denies; and with respect to a robber, while he admits he may be slain by natural law, is of opinion that the Gospel has greatly limited the privilege of defending our property by such means. Almost all jurists and theologians of his day, he says, carry it farther than he does.[371] To public warfare he gives a greater latitude than to private self-defence, but without assigning any satisfactory reason; the true reason being that so rigid a scheme of ethics would have rendered his book an Utopian theory, instead of a practicable code of law.