Reformation, Republicanism
and the Right of Resistance

The right of resistance to tyrannical rulers had a long tradition in English political thought. For example, in Policraticus (1159), John of Salisbury distinguished the true princes, who respected the laws of the kingdom and the liberties of the subjects, from the tyrants, who disobeyed them and enslaved their subjects. He argued that if a prince became a tyrant, putting at risk the material, spiritual or moral well-being of the kingdom, his subjects could disobey his commands and reject him, since the prince committed a flagrant crime against the political body1.

According to Salisbury, the prince’s sphere of action should not be different from that allowed to subjects. The prince cannot act outside the scope of the kingdom’s laws. Otherwise, he becomes a tyrant and, in the face of a manifest tyranny, which violates the freedom of the subjects, it is lawful to resist and confront him. Thus, the subjects have the right to resist and to attack the tyrant, when there is no other way to oppose him2.

The Reformation and the right of resistance

With the Reformation, the issues concerning justification for political resistance gained new elements. The early reformers generally recommended the duty of unrestricted obedience to the civil magistrate. The main argument, advocated by Luther and by Calvin, was 130that God, whose determination could not be disrespected by men, has established political authority. The only possible disobedience would be that motivated by an unfair command imposing something contrary to the true Christian faith. For if God, whose will was the only absolute and unconditional, instituted all authority, the exercise of such authority was necessarily conditioned to the purposes established by the divine will. Hence, if the civil magistrate ordered something contrary to the divine precepts, exercising his power in opposition to the will of God, he had become a tyrant and the subjects were released from obedience to him, since they should obey God rather than men, according to the Acts of the Apostles (5, 29)3.

But the disobedience could only be passive, inasmuch as the Gospel vehemently condemned the recourse to violence, even against a tyrant. The punishment of a tyrant was a divine prerogative, forbidden for the subjects. The Christians’ only possible attitude before an unfair command, contrary to the divine precepts, was to refuse obedience and accept with resignation the consequences to come4.

However, with the increasing persecution of Protestants in several places of Europe, Lutherans and Calvinists began to defend the possibility of some active resistance by force5. One of their arguments was based on an ambiguity in Luther´s writings, in which it was possible to see the authorization to use violence against a tyrant. It was founded on a principle of civil law stated in the Corpus Iuris Civilis, according to which it was legitimate to violently reject an unjust force under certain circumstances. The argument was that if the magistrate proceeded unjustly by force, causing irreparable damage to his subjects, he lost the status of magistrate and became an ordinary citizen who inflicted an injury against other citizens and was, therefore, subject to revenge6.

Another argument was rooted in the principle that all inferior magistrates were authorities instituted by God with the function of assisting the supreme magistrate and supervising him. Thus, if the supreme magistrate acted unjustly, the inferior magistrates could oppose him and, if necessary, resist him by the sword, which they also had the right to use. Absolute obedience would be due only to the political authorities who accomplished their duties7.

The possibility of active resistance to the tyrannical authorities echoed more strongly among the English and Scottish reformers, who published pamphlets to encourage the rebellion against the Catholic governments of Mary Tudor (1553-1558), Mary of Guise (1546-1561) and Mary Stuart (1561-1567). For instance, in A Shorte Treatise of Politike Power (1556), John Ponet proposed a popular revolt as a way of re-establishing the true religion in England. Based on several examples of the Old Testament, the ecclesiastical precedents, and the English history, he advocated the deposition and execution of Mary Tudor under the principle that it was lawful to resist by force a queen who had misused violence against her subjects. His main argument was that all political authorities had been instituted by God for the benefit of the people. As the English queen had transgressed the bounds of her office, by acting unjustly and pursuing her subjects, she had become a tyrant who should be punished for her crimes. But Ponet did not point out who could punish her, although he mentioned the same institutions created to prevent tyranny and compel rulers to fulfil their obligations, such as the Spartan ephors, the Roman tribunes, the members of the Imperial Diet and members of the English and of the French Parliaments8.

In How Superior Powers Oght to Be Obeyd of their Subjects (1558), Christopher Goodman advocated the right of resistance based on the distinction between the magistracy, which was holy because instituted by God, and the person of the magistrate, who was in charge of a magistracy and could be judged by his actions. The main argument was that if a magistrate failed to perform his duties, he could no longer be considered an authority established by God. By manifestly transgressing 132his magistracy, he lost his authority and the obedience of the subjects, who were now free to oppose him, even by the use of force9.

John Knox’s pamphlet, The Appellation to the Nobility and Estates (1558), argued that the Scottish nobles were also authorities instituted by God for the protection of the people. Thus, as inferior magistrates, they should resist the tyranny of the regent Mary of Guise10. His main argument was based on the same distinction made by Goodman between the magistracy and the person who exercises it: unconditional obedience was due only to the magistrate who performed appropriately the magistracy he was in charge of by God. Otherwise, if he neglected his office, the inferior magistrates should oppose him, even by the sword11.

Therefore, the English and Scottish reformers emphasized the argument that all magistracy was ordained by God for a purpose. When the magistrate failed to achieve it adequately, he would lose his authority, and resistance would be possible. The right of resistance was based on the distinction between magistrates – public persons for whom resistance to the superior magistrate was lawful, because they had also been instituted by God – and citizens – private persons who remained unreservedly subjects to public authority even in face of unfair orders. More than a right, the reformers claimed that inferior magistrates had a religious duty to resist the superior magistrate who disrespected his office12.

The French Calvinists also claimed the right of resistance during the wars of religion, principally after the massacre of thousands of Protestants on 24 August 157213. In Du droit des magistrats. (1574), Théodore de Bèze justified the right of resistance based on the origin of political authority. According to Bèze, all political authority has its foundation in two 133alliances. The first (foedus) between the prince and God, established in the ceremony of consecration, when the prince received the power of God with the commitment to respect the divine laws. The second alliance (pactum) was between the prince and the people, by which the people committed themselves to obey the prince, on condition that he complied with the obligations and conditions of his office14.

Thus, the prince was committed to both the divine laws and the people. Whenever the prince ordered actions contrary to the divine laws or did not fulfil his obligations, he became a tyrant and the people were free from obedience. By renouncing the charge of guardian of the divine will, the prince lost his condition of authority established by God and consequently became a simple private person. In the same way, by disrespecting his commitment with the people, the prince lost the loyalty of his subjects. In both cases, he freed his subjects from the duty of obedience15.

The issue was who could resist the tyrant, since the subjects were forbidden to use any kind of violence. Based on the traditional scholastic distinction, Bèze argued that the inferior magistrates should resist a tyrant without title, that is, the ruler by usurpation who seized the power illegitimately. If they were prevented from doing so, then the subjects could take up arms to combat him. In the case of the tyrant by practice, that is, the legitimate ruler who degenerated into tyranny, resistance could only be raised by the people’s representatives, who participated to some extent in public authority, such as the inferior magistrates or the Parliament’s members16.

Thus, the resistance to the tyrant was, on the one hand, a theological gesture, since deviation from God’s commands caused the loss of the prince’s authority and legitimized the people’s reaction. On the other hand, it was a political gesture, since it aimed at recovering the conditions for political authority, as established in the pact between the prince and the people17.

The justification to the right of resistance was even more emphatic in Vindiciae contra tyrannos (1579), published under the pseudonym of 134Stephanus Junius Brutus18. The treatise was scholastically organized into four questions: (1) whether the subjects should obey the prince’s commands when they were contrary to divine law; (2) whether it was lawful to resist a prince who infringed the divine law; (3) whether it was lawful and who could resist a prince who oppressed or ruined a public state; (4) whether neighbour princes can aid the subjects of a tyrannical prince19. The questions were discussed on the premise of mutual and reciprocal duties between the prince and the people, established by divine and natural laws and observed in the customs of the nations20.

Based on biblical passages, the author(s) argued that there were always two covenants in the foundation of political authority. The first one between God, the prince and the people (foedus), by which means the multitude became People of God and accepted the anointed of God to rule21. The other between the prince and the people (pactum), by which means the latter promised obedience to the former, as long as he respected the divine laws22. Described as a political agreement that established mutual obligations, the second covenant made the people co-responsible for the common good. It gave them not only the right to resist the prince who violated the divine laws, but also the duty of reprimanding him if he disrespected his commitments. The author, however, warned that resistance did not belong to the subjects in general. When he referred to the people, he understood the magistrates legally instituted as the people’s representatives23. Hence, only magistrates, inferior or otherwise, could resist the prince who disrespected the political covenant24.

At the same time, Scottish Calvinists also defended the people’s right of resistance in a more radical approach. In De Iure regni apud scotos (1579), George Buchanan justified the direct action of the subjects without appealing to their magistrates. Buchanan began with a description of pre-political life as an antisocial condition in which 135men would live in isolation, without laws, religion or any form of culture and comfort. Driven by the need and desire for security, they would have decided to assemble into a single body, forming a people. Afterwards, the people would have established a political authority and granted it to a monarch, responsible for taking care of public good. The members of the political body assumed then the condition of subjects, committed to political obedience on the condition that the monarch fulfilled his obligations25.

According to Buchanan, the people had not alienated or transferred their original power, but only delegated their exercise to the monarch. Created for the benefit of the people, the monarch was subject to the laws, whose purpose was to impose restrictions on the exercise of power, so that it could not be used in a discretionary way26. If the monarch ruled without submitting himself to the laws of the community, he became a tyrant. By exercising power in a discretionary way, he broke the original covenant and their subjects were released from political obligation27. The subjects could then, collectively or even as single persons, resist the tyrant and, if necessary, attempt against his life28.

The civil wars and the levellers

The debate on the right of resistance occupied a prominent place in the English political debate during the civil wars (1642-1648). On the one hand, the royalists denounced the iniquity of raising arms against a lawful monarch and demanded the punishment of the rebels; on the other hand, supporters of the parliamentary cause held the right of resistance to face a king who had become a tyrant by disrespecting the laws of the kingdom and the liberties of his subjects29.

The defeat of the royal troops and the king’s arrest in May 1646 brought new elements to the debate. The anonymous pamphlet The Remonstrance of Many Thousand Citizens (1646) warned parliamentarians that the people expected their representatives, elected to exercise power for the benefit of the people, to penalize those who had oppressed them for so long. It demanded the king’s judgment and punishment, the abolition of the monarchy and of the House of Lords – for being incompatible with the freedom of the people – as well as the dissolution of the then current House of Commons – since it had remained the same for too long – and the annual election of representatives30.

Its authors, Robert Overton and William Walwyn, were some of the main leaders of the levellers – a political group formed in the course of civil wars over some common claims, such as freedom of conscience, freedom of expression, free trade, widening popular suffrage, among others31. The group’s main strategy was to influence parliamentary decisions through the publication of pamphlets, petitions signed by thousands of citizens, and the organization of large popular demonstrations. But the strategy was changed as a result of the Parliament’s decision to dissolve the army, negotiate peace with the king and ban the submission of petitions. The levellers then went on to defend the resistance of the people against the Presbyterian majority of the Parliament. The main argument was that all power resided in the people and could only be exercised by their consent, aiming at the interest of neither a minority nor a majority but of the people. If this did not happen, the people could resume their original power, transmitted in confidence to their representatives. As no one was better than the people to evaluate the performance of their representatives, it was up to the people to judge the actions of the parliamentarians and to take back, if necessary, the power entrusted to them32.

Inspired by the levellers, on 5 June 1647 soldiers and officers published the manifesto The Solemn Engagement of the Army, in which they declared 137that they did not accept the dissolution of the army. The following month saw the formation of the General Army Council, destined to negotiate with the Parliament. On 28 October that council met in Putney’s Church, where the headquarters of the officers had been operating since September, to discuss the course of the negotiations. The following day the soldiers of the Fifth Regiment presented a manifesto, in the form of a constitutional proposal, entitled An Agreement of the People, drafted by the levellers’ top leaders33.

Nonetheless, the debates on the constitutional proposal were soon interrupted in early November with the king’s escape34. Due to an agreement with Scottish commissioners, in which real support was secured for a future Presbyterian government of the Church of England, the Scots began to support the royal cause and the royalists resumed armed conflicts. The levellers, who had harshly criticized the conservatism of the officers during Putney’s debates, began to focus their attacks against the greater threat: the return of Charles I. In their manifestoes and petitions they reinforced the importance of unity in the struggle against the royalists, the necessary dissolution of the present Parliament and the trial and punishment of the king.

Reorganized and commanded by General Fairfax, the parliamentary army imposed successive defeats to the royal troops, imprisoning again Charles I. The Presbyterian majority of the Parliament accepted the king’s peace proposal, but the army officers rejected it and began to defend the expulsion of these parliamentarians. The levellers supported the former, on condition that An Agreement of the People would be presented to the new Parliament. On 6 December 1648, a regiment commanded by Colonel Thomas Pride expelled more than a hundred parliamentarians and arrested more than a dozen of them, resulting in the so-called Rump Parliament35. Given the constant danger of a re-conquest of the throne by Charles I, the officers pressured for his trial, and on 6 January 1649, a legislative act settled the judgement. The Rump Parliament established a High Court of Justice, which 138condemned the king for the crimes of tyranny and treason. On 30 January Charles I was executed.

John Milton and the right of the people

In an account of his intellectual trajectory in Pro Populo Anglicano Defensio Secunda (1654), John Milton states that he did not pronounce on civil liberty until the death of the king because he saw the English magistrates vigorously involved in securing it. Nevertheless, when Presbyterian magistrates, who had been Charles I’s fiercest enemies, began to criticize his condemnation and execution, claiming that Protestant doctrine was against such “atrocities” against the king, Milton found himself impelled to denounce the falsity of the Presbyterians and to demonstrate that it was lawful to attempt the lives of tyrants36.

In The Tenure of Kings and Magistrates (1649), published three weeks after the king’s execution, Milton intended to prove that the people, represented by the Rump Parliament and the parliamentary Army, had the right to depose, judge, and punish Charles I, since the king had become a tyrant and the magistrates had not reacted in accordance with their rights and responsibilities.

According to Milton, at the origin of all political authority, there was a decision of free men, who sought through mutual association to overcome the insecurity of their natural condition, marked by widespread violence. As the alliance for mutual protection, based simply on reciprocal promise, was insufficient for its effectiveness, “they saw it needful to ordaine som authoritie, that might restrain by force and punishment what was violated against peace and common right”37.

Thus, in order to prevent partiality in trials, the people decided to impose a disciplining power on themselves, delegating to magistrates their original power to judge and punish offenders of peace and common 139right. There was no total alienation or unconditional transference of the natural power, but only an attribution or designation for its exercise. In this way, in executing justice, magistrates do not exercise a new right. They simply exercise that right of which the people were originally possessors; and this right has not been abandoned but merely concentrated in and entrusted to some public magistrates38.

In realizing that the magistrates could arbitrarily exercise the power received in trust, the people decided then to create laws capable of controlling and restraining the political authority. As many magistrates did not execute the established laws, or made of them a bad use, the people demanded, thus, a solemn oath to respect them. With the same aim of strengthening the laws, to which all members of the political body should be submitted, Councils and Parliaments were created to ensure the correct exercise of political authority and the realization of the common good39.

The important in Milton’s description was that people remained free to resist after the establishment of political authority. They had not alienated their original power but simply delegated it in trust to magistrates, who assumed the obligation to exercise it according to the laws. If the magistrates were no longer deserving the people’s confidence, by exercising political authority out of the prescribed legal limits, the people were released from obedience and recovered their original power. Political obedience was conditioned to the magistrates’ compliance with their commitment to respect the laws that the people themselves had established or at least given their consent to. Hence, all magistrates, even the supreme magistrate, must be subject to the rule of law, which was one of the most important principles of classical republicanism40.

The description ends with the reaffirmation of the origin of political power in the people, which delegate its exercise to kings and magistrates in trust, and of the people’s freedom to take it back when they deem it convenient

Thus farr hath bin considered briefly the power of Kings and Magistrates; how it was and is originally the peoples, and by them conferr’d in trust onely to bee imployd to the common peace and benefit; with liberty therefore and right remaining in them to reassume it to themselves, if by Kings and Magistrates it be abus’d; or to dispose it of by any alteration, as they shall judge most conducting to the public good41.

For answering what the people can do legitimately against a magistrate who became tyrant, Milton begins by designating what a tyrant is: “whether by wrong or by right coming to the Crown, is he who regarding neither Law nor the common good, reigns onely for himself and his faction”42. The traditional distinction between tyrant without title – the usurper who seized illegitimately the political power – and tyrant by practice – the legitimate ruler who exercised the political power in an unfair way – is abandoned. The two types of tyrants are virtually indistinguishable. Whatever the manner in which the magistrate has held the power, what characterizes tyranny is the disrespect for the laws and the common good. Much closer to the definition found in classical republicanism43, the tyrant is the one who exercises the power, which he received from the people, for his own benefit, becoming a public enemy for disregarding the laws and the common good44.

Although Milton uses biblical passages that held an important place in the Protestant controversy over the lawfulness of murdering the tyrant45, his main source seems to come from classical republicanism. He mentions republican authors who considered lawful and honourable to murder the tyrant at any moment, without judgment; for the benefit of the law should not be granted to whom had disrespected it46.

Based on Cicero’s statements47, Milton argues that the tyrant, by acting hostilely against his people, moves away from human society, 141becoming an enemy not only of his people but also of all humankind. So natural reason determinates that he should be exterminated as an enemy, “Against whom what the people lawfully may doe, as against a common pest, and destroyer of mankind, I suppose no man of cleare judgement need goe furder to be guided then by the very principles of nature in him”48.

Besides, more radical than his contemporaries, Milton argues that the people have the right to depose kings and magistrates, even if they are not tyrants, simply because of the people’s liberty to choose the government they deem best suited to their purposes49:

It follows lastly, that since the King or Magistrate holds his autoritie of the people, both originaly and naturally for their good in the first place, and not his own, them may the people as oft as they shall judge it for the best, either choose him or reject him, retaine him or depose him though no Tyrant, merely by the liberty and right of free born Men, to be govern’d as seems to them best50.

The main purpose of the establishment of government, resulting from the free consent of naturally free men, cannot be but the protection of freedom. Therefore, it makes no sense to say that men should abdicate freedom for the sake of other values such as security, peace or well-being. Men, created free by nature, associate and institute government to remain free and not to submit to arbitrary will. Freedom is the supreme value of human existence, for without freedom there is no worthy existence. Milton’s conception of freedom is thus inseparable from the classical republican idea of human dignity: freedom is the mark of man’s dignity, a creature made to be free and not to subject to or serve others. When man submits to an arbitrary will or even becomes subject to it, he loses his dignity, that which characterizes him as a human being51.

The Council of State appointed Milton as Secretary for Foreign Tongues on Mars 15, 1649. He was responsible for handling the Commonwealth’s 142diplomatic correspondence and became its greatest propagandist52. Although there are no official records of having been commissioned by the Council of State, Milton took up the task of responding to the Eikon Basilike. Published a week after the execution of Charles I, the pamphlet was supposedly written by the king at the time of his trial – evidence indicates that its author was the Presbyterian minister John Gauden. Having achieved immediate success, with about 35 editions in London and 25 editions abroad in a short period, it became a kind of book of devotion and one of the main weapons of the royalists against the new government53.

The title of Milton’s replica, Eikonoklastes, had broad implications within puritanism. Veneration of images of saints and martyrs was considered a form of idolatry and servitude. The Puritan ministers encouraged the rejection of any form of icons, that is, of images that evoked characteristics of facts, people and things in general54. This pamphlet, published in October 1649, refuted the Eikon Basilike chapter by chapter, following its structure and theme. Milton denied all the king’s claims, denouncing Charles I’s imposture, hypocrisy, lies, and falsity in the course of civil wars, and charged the king himself with all the perverse actions of the royalists55.

In order to counteract the alleged sanctity of the king, Milton emphasized his tyrannical practices. The intention was to undo the image of Charles I as a martyr and to erase the analogies between his execution and the sufferings of Christ, which “canonized” his person. For Milton, far from holiness, Charles I’s tyrannical practices drew him closer to Satan, of whom he would be a fine imitator and devoted servant. Hence, his execution should not be seen as a confessional drama, but simply as the consequence of his tyrannical reign56.

At the end of his pamphlet, Milton maintained the impossibility of living in freedom under a monarchical regime. The main argument concerned freedom and domination. If we are forced to submit ourselves to a king whose prerogatives are so extensive that we cannot have anything but by his favor, then we are not free, but only a multitude of vassals subject to the domination of an absolute master and, with that, we lose our dignity, expressed by our freedom57.

As a polemicist of the new government, Milton was in charge of refuting Salmasius’ Defensio Regia pro Carlo I, published anonymously in November 1649, with the inscription Sumptibus Regiis, that is, in support of the royal family. The main purpose of Salmasius’ treatise was to repudiate the deposition and execution of Charles I, which would have been a terrible offence to the divine right of kings.

In Pro Populo Anglicano Defensio (1651), based on republican principles, Milton refutes the Defensio Regia por Carlo I chapter-by-chapter and defends again the right of the English people to judge and punish Charles I58. After demonstrating the falsity of the thesis that the power of kings derives directly from the divine will – reason for which they would be responsible only before God and, consequently, legibus solutus, that is, above all positive laws, with the right to do whatever they desired – Milton tries to prove the superiority of the people’s right over that of the kings on the grounds of the origin of political authority.

His description is very similar to that in The Tenure of Kings and Magistrates. First, there was a decision of free men to associate in order to share their natural power and assure their mutual protection. In the succeeding step, the people established a political authority with the purpose of avoiding the dangers and inconveniences of leaving to each one the natural power to determine justice. Finally, the people commissioned kings and magistrates to exercise the political authority, according to the laws established by the people59.

Milton refutes Salmasius’ assertion that the people’s power ceases to exist when the rule of kings begins due to a definitive transfer of their 144power. As in The Tenure of Kings and Magistrates, he emphasizes that there was not unrestrained alienation of the people’s original power. It would be foolish for them to grant their power to someone unconditionally or to renounce completely all their rights. The people conceded their original power to the kings only in trust:

For it is generally agreed that almost all kings of nations everywhere receive from the people a rule which is handed over to them under certain conditions: if the king should not abide by them, pray tell us why should that power, which was only held in trust, not return to the people as well from a king as from a consul or from any other magistrate60?

Thus, the people can take the power back if they consider that kings have not been faithful to the conditions on which they received it: “the people can call that power, which they had handed over to another for the public welfare, back to themselves without injustice”61. Mentioning Cicero62, Milton maintains that all political authority originates in the resolution of the people, who choose those who they think apt to promote the common good.

According to Milton, both the divine and the natural laws determined that those accused of misconducts, grave or not, should be punished by their crimes, be they magistrates, nobles or kings. They prescribe that when a ruler subverts the laws and becomes a tyrant, the people may resort to force and use violence to remove him from his office63. Against the argument that the inconveniences of rebellions to remove a tyrant are greater than the evil caused by tyranny, Milton argues that if nature advises men to let thieves steal their property when life is put in danger, this does not mean that there is a natural right of thieves. He then makes a long list of peoples who, following the teachings of nature, punished their rulers who had become tyrants – Egyptians, Ethiopians, Assyrians, Medes, Persians, Greeks, Romans, Gauls, Germans, Scots, and English64 – and cites republican authors in support of his narrative65.

The freedom of the Greeks and Romans to punish the tyrants was, according to Milton, founded on the right of the people, given by God and nature, to establish and change the form of government that they considered most appropriate. Without this right, which is the source of all civil liberty, the people would be reduced to the condition of slaves, subjected to servitude. Milton concludes that even if there were no precedents, either in sacred or profane history, of resistance to tyrants, this would not imply that such a right does not exist, for it might not have been exercised for circumstantial reasons.

In order to defend the right of English people to judge and to condemn Charles I, Milton reaffirms that the royal power comes from the people, being a concession conditioned to certain ends. The exercise of royal power, as of any magistracy, is subject to certain conditions, usually established by the laws of the kingdom, which all magistrates, including the king, swear to respect and must comply with in the exercise of political power.

The republican idea that the true magistrate is not simply the one who holds the power, but the one who exercises it within the law, is then exalted. Only law, by expressing reason, guarantees the fair exercise of political authority. Milton recurs once again to the principles of classical republicanism to hold that every magistrate must necessarily submit to the laws. He evokes Plato, according to whom the laws are supreme in a republic and must govern all men66; and recalls Aristotle’s assertion, taken up by Cicero, that the laws should govern the magistrates as much as the magistrates govern the people67.

The laws are above kings and magistrates, according to Milton, because they are the foundation of all political authority. They authorize, by the will of the people, kings and magistrates to exercise power, establishing the scope, extent and limits of their exercise. The consequence of an absolute and unlimited power, without legal restrictions, can only be instability, marked by the indispensable recourse to violence. The exercise of power within the limits of law, on the contrary, results in the stability and longevity of the political body68.

When Charles I did not respect such conditions, he became a tyrant and might be deposed and judged by the people, like any other magistrate:

So I hope that for those who prefer the pursuit of truth before faction, I have from the law of God, and the right of nations, and finally from the institutes of my country brought forward abundant proofs that might leave it beyond doubt that a king of England can be judged and also punished by death69.

Therefore, the right to punish the tyrants was founded in the right of the people, to which belongs the power to establish and change the form of government as they consider most appropriate. Without this power, which is the source of all civil liberty, the people would be reduced to the condition of slaves, subject to servitude70.

In 1650, a second edition of The Tenure of Kings and Magistrates came into light with the addition of a few pages in which some reformers – Luther, Zwingli, Calvin, Bucer, Knox, among others – were evoked as testimony to the people’s right to punish tyrant magistrates. In the final paragraph, Milton states that the best and leading Protestant theologians generally sustained “that to doe justice on a lawless King, is to a privat man unlawful, to an inferior Magistrate lawful”71.

Some interpreters think that Milton, once taking up a civil service in the new government, began to entertain a more conservative point of view, introducing an ambiguity that did not exist in the first edition: there he clearly defended that anyone had the right to submit to justice a king who, although originally legitimate, became a tyrant72.

It is true that some passages from the first edition seem to suggest that individuals can exercise political resistance. It must be acknowledged, however, that this is always justified as a right of the people. In describing the origin of political power, he states that it is the people who create laws and, in order to ensure that they are obeyed, establish magistrates. Now these magistrates are the first to be called upon to act on behalf of the people against tyranny. If they do not, the people still have other instruments; in the English case – and this seems to be Milton’s perspective – it was the Army that had the authority of representing the people, since it had been instituted by the Parliament.

Indeed, the second edition’s last paragraph is closer to the moderate opinion of some reformers, especially French Calvinists, such as Bèze and Hotman, who asserted that the right of political resistance was private to the lower magistrates as representatives of the people. It is also true that the conception of people becomes narrower, closer to monarchomach pamphlets such as Vindiciae versus Tyrannos, who identified the people to the established magistrates, as their representatives. Nonetheless, there does not seem to be an ambiguity between the two versions: resistance is lawful when carried out by legitimate trustees and depositaries of the people’s authority.

Algernon Sidney and the popular revolt

After the Restoration in 1660, some treatises and pamphlets drew attention to the terrible consequences of the monarchy’s return, particularly to the subjects’ religion freedom73. They often associated the monarchy with tyranny, emphasizing the disrespect for divine and natural laws by Charles II, who acted arbitrarily, imposing his discretionary will, likewise Charles I had done. They also emphasized the superiority of the republican regime and called the people to resistance against the new monarch74.

The debate on the right of resistance intensified during the exclusion crisis75. In three successive Parliaments (1679, 1680 and 1681) the opposition to the Crown tried to exclude the king’s brother, James Stuart, from the succession to the throne for being professedly Catholic. The threat of a future papist and even more arbitrary government generated 148abundant literature against the Stuart dynasty and in favour of the people’s resistance76.

One of the most emphatic defences of the people’s right of resistance written in this period was the Discourses concerning government. Published only in 1698 by John Toland, the work was a compilation of Algernon Sidney’s manuscripts, confiscated when he was arrested on June 26, 1683. Active member of the former republican regime77, he was accused of having participated in an unsuccessful plot to assassinate Charles II and James Stuart78. His manuscripts were used in the trial as evidence of his subversive intention. Summarily convicted of treason, he was executed on December 779.

The work refuted chapter-by-chapter the pamphlet Patriarcha80, published by the royalists in 1680, 27 years after the death of its author, Robert Filmer81: “Having lately seen a book entitled Patriarcha, written by Sir Robert Filmer, concerning the universal and undistinguished right of all kings, I thought a time of leisure might be well employed in examining his doctrine, and the questions arising from it.”82

If the first two parts present a theoretical approach to the people’s right to order political life as they think fittest, the third part offers arguments in defence of the people’s right to resist an arbitrary government, in a much more programmatic tone. The general principle constantly recapitulated is that if the people institute the government, they may evaluate whether it achieves the purpose for which it was established, 149reproach it when it does not attain its objectives, and even abrogate it83. This is because it would be contradictory to think that a people is free to institute a government, but not to regulate it, modify it or abolish it when they consider necessary or convenient84:

We say in general, he that institutes, may also abrogate, most especially when the institution is not only by, but for himself. If the multitude therefore do institute, the multitude may abrogate; and they themselves, or those who succeed in the same right, can only be fit judges of the performance of the ends of the institution85.

Since its first pages the Discourses evoked the writings of Calvin and Buchanan to defend the people’s right to resist and overthrow the government when it fails to accomplish its duties86. If the reference to Calvin seems mistaken, since he never defended that right, the reference to Buchanan indicates the desire to align with the most radical wing of the Reformation87.

Sidney recognizes that although a single person must obey the magistrate’s commands, on condition that they are in accordance with the laws, the people have the right to resist the political authority when it does not fulfil its commitments. For the government is created by the people, who give it the form and power that they consider appropriate for their benefit: “Governments, and the magistrates that execute them, are created by man. They who give a being to them, cannot but have a right of regulating, limiting and directing them as best pleaseth themselves”88.

Dealing with the issue of seditions, tumults and wars for just reasons, Sidney defends the people’s right of resistance either to a tyrant without title or to a legitimate magistrate who rules unlawfully. His argument is that the people are the most qualified agent to judge whether the ruler is exercising his power lawfully or not, since they established him89.

The same general principle reappears in the final part of the Discourses in a republican language:

The people therefore cannot be deprived of their natural right upon a frivolous pretence to that which never was and never can be. They who create magistracies, and give to them such name, form and power as they think fit, do only know, whether the end for which they were created, be performed or not. They who give a being to the power which had none, can only judge whether it be employ’d to their welfare, or turned to their ruin90.

Sidney criticizes authors such as Filmer, who asserted that the people, by creating magistrates and naming them sovereigns, would have abandoned their natural liberty and submitted themselves entirely to their sovereigns91. Based on republican values, he argues that freedom cannot subsist where there is a power above the laws, since it depends on respect for the laws92.

He also censures authors such as Hobbes, who affirmed that political authority was established by the total alienation of the natural right of individuals in favour of the sovereign, who would be completely free to act as he pleases93. According to Sidney, there was neither a total alienation nor the unconditional submission to the sovereign’s will. The people conferred just a part of their power to the magistrates, remaining with most of it, and promised obedience to the political authority who respected the laws94.

Moreover, based on Roman examples, he claims that the people grant honours and titles to magistrates who accomplish their duties95. So the people should obey only the magistrate whose ordinances express the principles of universal reason – for which all nations at all times have equal veneration – manifested in the laws. No one is obliged to submit to unfair ordinances, since that which is not just is not law96.

According to Sidney, the people’s resistance to an unjust magistrate’s ordinances is the way the people have to reaffirm that the purpose of 151their obedience to a political authority is freedom, the most important common good that the law may preserve. With the same meaning as that propagated by classical republicanism, freedom is understood as the absence of submission to an arbitrary power, and can only be assured by the law. Thus, the people may disobey the magistrate’s ordinances that disrespect the law and put their freedom at risk97.

The problem is to defend a right that can cause civil disorders. Sidney considers that popular revolts are justified when the political authority acts arbitrarily and legal resources cannot be used against it98. In cases where the legal way is obstructed, especially by tyrannical governments that use violence to enforce their arbitrary will, popular revolts are the only means of restoring freedom. Besides, natural law, which expresses the justice, does not disappear after the establishment of political authority. If a magistrate tries to impose his arbitrary will and the legal way has no effect against him, natural law allows the people to resist him by force99.

Sidney distinguishes three cases in which it is legitimate to resort to extrajudicial measures. First, when someone takes over the political authority and intends to exercise it without legal designation. Against the tyrant without title, any citizen may combat the usurper who obtained power by illicit and unjust means. The second case is when the magistrate obtains the political authority legally, but continues to exercise it after the end of his tenure. In this case, he no longer exercises the power entrusted to him, according to the conditions established by law; and he becomes a tyrant, as in the first case, since there is a usurpation. The third case is when the magistrate has a legal mandate and exercises it within the specified period, but his actions are contrary to the established laws. As he does not follow what the laws prescribe for the good of the people, he becomes also a tyrant, who cannot be protected by the laws that he himself has subverted100.

If the tyrannicide is entirely justified in those cases, the regicide is not. Sidney reckons lawful to remove a king who does not accomplish 152his duty, but never to kill him when he exercises this power according to the laws. Only if he becomes a tyrant, disrespecting the divine, the natural and the human laws, the people have the right to assassinate him, since he becomes an enemy of humankind101.

The issue is who can adjudge if there has been law transgression by the political authority. Sidney admits that, in the case of the supreme magistrate, there is no previously established judge. The supreme magistrate does not seem to be the appropriate judge to evaluate the exercise of his own power. As all magistrates are created by the people, who know the purpose of each one, the people seem to be the better judge to assess whether there was a deviation in the exercise of political authority102.

Sidney affirms that the people can never be considered seditious, because sedition implies an unjust opposition to a lawful government. When the people establish the government, they specify the scope and the extension of its power. If the government acts outside its limits, deviating from its purpose, the people has the right to oppose it103. It is also inappropriate to call rebellion the general revolt of a people. According to Sidney, the word rebellion derives from rebellare, which means to recommence a war against a legitimate political authority. There would be rebellion if the government had been established after a victorious war over the people. But the government is always established by the people and should account for its actions to the people. Thus, there is no rebellion when the people revolt against the government104. Moreover, rebellion is a form of insubordination of the inferior to the superior. The people’s superiority over government is clear, since the government only exists by the people’s decision105.

Sidney recognizes the inconveniences of popular revolts but reminds us that the human condition is not perfect, and it is necessary to choose often the least of evils. Based on the republican principle that freedom is the most important value of human life, because it is precondition to the enjoyment of other goods, he thinks that freedom should never be sacrificed in the name of peace. A peaceful life without freedom reflects 153a deplorable condition of servitude; and only with freedom, peace can be enjoyable. Thus, the threat to the people’s freedom is sufficient for initiating a revolt against the government, even if peace is threatened106.

As Caroline Robbins notes, the Discourses Concerning Government were a key reference for the American settlers in their struggle for independence and for the French revolt against the Ancien Régime107. Thus, Sidney’s work became a guide to modern revolutions and consolidated the right to resist in the English political thought.

Alberto Ribeiro
Gonçalves de Barros

Universidade de São Paulo (USP)/CNPq