Grotius B. 1. c. 3. § 1. observes, "that some sort of private war may be lawfully waged—It is not repugnant to the law of nature, for any one to repel injuries by force."
§ 2. The liberty allowed before is much restrained, since the erection of tribunals. Yet there are some cases wherein that right still subsists; that is, when the way to legal justice is not open; for the law which forbids a man to pursue his right any other way, ought to be understood with this equitable restriction, that one finds judges to whom he need apply, &c.
Sidney's discourses upon government c. 2. § 24. 'Tis in vain to seek a government in all points free from a possibility of civil wars, tumults and seditions: that is a blessing denied to this life, and reserved to complete the felicity of the next. Seditions, tumults, and wars do arise from mistake or from malice; from just occasions or unjust. Seditions proceeding from malice are seldom or never seen in popular governments; for they are hurtful to the people, and none have ever willingly and knowingly hurt themselves. There may he, and often is, malice in those who excite them; but the people is ever deceived, and whatever is thereupon done, ought to be imputed to error, &c. But in absolute monarchies, almost all the troubles that arise proceed from malice; they cannot be reformed; the extinction of them is exceeding difficult, if they have continued long enough to corrupt the people; and those who appear against them seek only to set up themselves or their friends. The mischiefs designed are often dissembled, or denied, till they are past all possibility of being cured by any other way than force; and such as are by necessity driven to use that remedy, know they must perfect their work or perish. He that draws his sword against the prince, say the French, ought to throw away the scabbard; for though the design be never so just, yet the authors are sure to be ruined if it miscarry. Peace is seldom made, and never kept, unless the subject retain such a power in his hands, as may oblige the prince to stand to what is agreed; and in time some trick is found to deprive him of that benefit.
It may seem strange to some that I mention seditions, tumults and wars, upon just occasions; but I can find no reason to retract the terms. God, intending that men should live justly with one another, does certainly intend that he or they, who do no wrong, should suffer none; and the law that forbids injuries, were of no use, if no penalty might be inflicted on those, that will not obey it. If injustice therefore be evil, and injuries be forbidden, they are also to be punished; and the law, instituted for their prevention, must necessarily intend the avenging of such as cannot be prevented. The work of the magistracy is to execute this law; the sword of justice is put into their hands to restrain the fury of those within the society, who will not be a law to themselves; and the sword of war to protect the people against the violence of foreigners. This is without exception, and would be in vain if it were not. But the magistrate who is to protect the people from injury, may, and is often known, not to have done it: he sometimes renders his office useless by neglecting to do justice; sometimes mischievous by overthrowing it. This strikes at the root of God's general ordinance, that there should be laws; and the particular ordinances of all societies that appoint such as seem best to them. The magistrate therefore is comprehended under both, and subject to both, as well as private men.
The ways of preventing or punishing injuries are judicial or extrajudicial. Judicial proceedings are of force against those who submit, or may be brought to trial, but are of no effect against those who resist, and are of such power that they cannot be constrained. It were absurd to cite a man to appear before a tribunal, who can awe the judges, or has armies to defend him; and impious to think that he who has added treachery to his other crimes, and usurped a power above the law, should be protected by the enormity of his wickedness. Legal proceedings, therefore, are to be used when the delinquent submits to the law; and all are just; when he will not be kept in order by the legal.
The word sedition is generally applied to all numerous assemblies, without or against the authority of the magistrate, or of those who assume that power. Athaliah and Jezebel were more ready to cry out treason, than David, &c.
Tumult is from the disorderly manner of those assemblies, where things can seldom be done regularly; and war is that "decertatio per vim," or trial by force, to which men come, when other ways are ineffectual.
If the laws of God and men, are therefore of no effect, when the magistracy is left at liberty to break them; and if the lusts of those who are too strong for the tribunals of justice, cannot be otherwise restrained than by sedition, tumults and war; those seditions, tumults and wars, are justified by the laws of God and man.
I will not take upon me to enumerate all the cases in which this may be done, but content myself with three, which have most frequently given occasion for proceedings of this kind. The first is, when one or more men take upon them the power and name of a magistracy, to which they are not justly called. The second, when one or more being justly called, continue in their magistracy longer than the laws by which they are called, do prescribe. And the third, when he or they, who are rightly called, do assume a power, though within the time prescribed, that the law does not give; or turn that which the law does give, to an end different and contrary to that which is intended by it.