QUEST. XXXI. Whether or no self-defence against any unjust violence offered to the life, be warranted by Gods Law, and the Law of Nature and Nations? (2) to QUEST. XXXI. Whether or no self-defence against any unjust violence offered to the life, be warranted by Gods Law, and the Law of Nature and Nations? (3)

QUEST. XXXI. Whether or no self-defence against any unjust violence offered to the life, be warranted by Gods Law, and the Law of Nature and Nations? (2)

cry for help, and not the Magistrate onely, but the neerest private man or woman was to come, by an obligation of a divine Law of the seventh Commandement, to rescue the Damsell with violence; even as a man is to save his enemies Oxe or his Asse out of a pit: And if a private man may inflict bodily punishment of two degrees, to preserve the life and chastity of his neighbour, far rather then suffer his life and chastity to be taken away, then he may inflict violence of foure degrees even to killing, for his life, and much more for his owne life. So when a Robber, with deadly weapons invadeth an innocent traveller to kill him, for his goods, upon the supposition that if the Robber be not killed, the innocent shall be killed; Now the question is, which of the two, by Gods morall Law and revealed will in point of conscience, ought to be killed by his fellow; for we speake not now of Gods eternall decree of permitting evill, according to the which murtherers may crucifie the innocent Lord of glory: by no morall Law of God, should the u[gap]just robber kill the innocent traveller, therefore in this exigence of providence, the traveller should rather kill the robber. If any say, by Gods morall Law not one should kill his fellow; and it is a sin against the morall Law in either to kill other; I answer: If a third shall come in when the robber and the innocent are invading each other for his life, all acknowledge by the sixt Commandement, the third may cut off the robbers arme to save the innocent; but by what Law of God he may cut off his arme, he may take his life also to save the other; for it is murther to wound unjustly, and to dismember a man by private authority, as it is to take away his life: If therefore the third may take away the robbers member, then also his life, so hee doe it without malice or appetite of revenge, and if he may doe it out of this principle, Thou shalt love thy neighbour as thy selfe; because a man is obliged more to love his owne flesh, then his neighbours, Ephes. 5.28. and so more to defend himselfe, then to defend his neighbour, then may he oppose violence to the robber; As two men drowning in a water, the one is not obliged by Gods Law, to expose himselfe to drowning to save his neighbour; but by the contrary, hee is obliged rather to save himselfe, though it were with the losse of his neighbours life: As in war, if souldiers in a strait passage be pursued on their life, nature teacheth them to flee; if one fall, his fellow in that exigence is not onely not obliged to lift him up, but he and the rest flying,

though they trample on him and kill him, they are not guilty of murther, seeing they hated him not before. Deut. 19.4.6. so Chemnit. loc. com. de vindic. q. 3. alloweth private defence. 1. When the violence is suddaine, And the 2. Violence manifestly inevitable. 3. When the Magistrate is absent and cannot help. 4. When moderation is kept as Lawyers require. 1. That it be done incontinent, if it be done after the injury, it is revenge, not defence. 2. Not of Desire of revenge. 3. With proportion of armor. If the violent invader invade not with deadly weapons, you must not invade him with deadly weapons, and certainly the law, Exod. 22. of a mans defending his house is clear. 1. If he come in the night, it is presumed he is a robber. 2. If he be taken with a weapon breaking the house, he cometh to kill, a man may defend himself, wife, and children, but he is 3. but to wound him, and if he die of the wound, the defender is free, so the defender is not to intend his death, but to save himself.

5. It were a mighty defect in providence to man, if dogs by nature may defend themselves against Wolves, Bulls against Lyons, Doves, against Haukes, if man in the absence of the lawfull Magistrate, should not defend himself against unjust violence, but one man might raise armies of Papists sick for blood to destroy innocent men. They object, When the King is present in his person, and his invaders, he is not absent, and so though you may rather kill a private man, then suffer your self to be killed, yet, because prudence determineth the means of self-defence, you are to expose your life to hazard for justice of your King, and therefore not to do violence to the life of your King, nor can the body in any self-defence, fight against the head, that must be the destruction of the whole. Ans. Though the King be present as an unjust invader in Warres against his innocent subjects, he is absent as a King, and a father and defender, and present as an unjust grassator, and therefore the innocent may defend themselves, when the King neither can, nor will defend him. Nature maketh a man (saith the law. l. Gener. c. de decur. l. 10. l. si alius. [gap]. Bellissimè ubique Gloss. in vers. ex magn. not. per. il[gap]um. text. ff. quod vi aut clam. l. ait praetor. §. si debitorem nicum. ff. de hisque in fraud. credito.) even a privat man his own judge, magistrate and defender, quando copiam judicis, qui sibi jus reddat, non habet. When he hath no judge, to give him justice and law. 2. The subjects are to give their lives, for the King, as the King ▪ because the safety of the King as King is the safety of the common-wealth. But the King as offering unjust

violence to his innocent subjects is not King. Zoannet. part. 3. defens. n. 44. transgrediens notoriè officium suum judex, agit velut privatus aliquis, non ut magistratus. ff. de injur. est bonus in simili in. l. qui fundum. §. si. tutor. ff. pro emptore. 3. If the politick body fight against this head in particular, not as head, but as an oppressor of the people. There is no fear of dissolution, if the body rise against all magistracy, as magistracy and lawes: dissolution of all must follow, Parliaments and inferiour judges are heads. Num. 1.16. Num. 10.4. Deut. 1.15. Iosh. 22.21. Mic. 3.1. ver. 9.11. 1 King. 8.1. 1 Chron. 5.25. 2 Chro. 5.2. No lesse then the King, and it is unlawfull to offer violence to them, though I shall rather thinke a private man is to suffer the King to kill him, rather then he kill the King; because he is to preferre the life of a private man, to the life of a publique man.

6. By the law of nature a ruler is appointed to defend the innocent. Now by nature an infant in the wombe d[gap]fendeth it self first, before the parents can defend it, then when parents and magistrates are not, (and violent invading magistrates are not in that magistrates) nature hath commended every man to self-def[gap]nce.

7. The Law of nature excepteth no violence, whether inflicted by a magistrate, or any other unjust violence from a ruler is twice injustice. 1. He doth unjustly as a man. 2. As a member of the common-wealth. 3. He committeth a speciall kind of sin of injustice, against his office, but it is absurd to say we may lawfully defend our selves from smaller injuries, by the law of nature; and not from the greater. If the Pope (saith Fer. Vasquez. illust. quest. l. 1. c. 24. n. 24, 25.) command to take away benefices from the just owner, these who are to execute his commandement, are not to obey, but to write back that that mandat came not from his holinesse, but from the avarice of his Officers; but if the Pope still continue and presse the same unjust Mandat, the same should be written againe to him: and though there be none above the Pope, yet there is naturall self-defence patent for all. Defensio vitae nece aria est, & à jure naturali profluit: L. ut vim. ff. de just. & jure 16. Nam quod quisque ob tutelam corporis sui fecerit, jure fecisse videatur. C. jus naturale. 1. distinc. l. 1. ff. de vi & vi armata. l. injuriarum. ff. de injuria. C. significasti. 2. de hom. l. scientiam. sect. qui non aliter ff. ad leg. Aquil. C. si vero 1. de sent. excom. & l. sed etsi ff. ad leg. Aquil. etiamsi sequatur homicidium. Vasquez. l. 1. c. 17. n. 5. etiam occidere licet ob

defensionem rerum. Vim vi repellere omnia jura permittunt in C. signisicasti. Garcias Fortunius Comment. in l. ut vim. ff. de instit. & jur. n. 3. defendere se est juris naturae & gentium. A jure civili fuit additum moderamen inculpatae tutelae. Iac. Novel. defens. n. 101. Occidens Principem vel alium Tyrannidem exercentem, à poena homicidii excusatur. Grotius de jure belli & pacit▪ l. 2. c. 1. n. 3. Si corpus impetatur vi presente, cum periculo vitae non aliter vitabili, tunc bellum est licitum etiam cum interfectione periculum inferentis, ratio, natura quemque sibi commendat. Barcl. advers. Monar. l. 3. c. 8. est jus cuilibet se tenendi adversus immanem sevitiam.

But what ground (saith the Royalist) is there to take Arms against a King? Ielousies and suspitions are not enough.

Ans. The King sent first an Armie to Scotland, and blocked us up by sea, before we took Armes. 2. Papists were armed in England, they have professed themselves in their Religion of Trent to [gap]e so much the holyer, that they root out Protestants. 3. The King declared we had broken loyalty to him, since the last Parliament. 4. He d[gap]clared both Kingdoms Rebels. 5. Attempted in his Emissaries to destroy the Parliament. 6. And to bring in a forraigne enemie. And the Law saith, An imminent danger, which is a sufficient warrant to take up Armes, is not strokes, but either the terrour of Armour, or threatning. Glossator. in d. l. 1. C. Vnde vi. ait non esse verbera expectanda, sed vel terrorem armorum sufficere, vel minas, & hoc esse imminens periculum. L. Sed & si quemcunque in princ. ff. ad leg. Aquil. l. 3. quod qui armati ff. de vi & vi armata is qui aggressorem. C. ad legem C. ad legem Corneli.

In most hainous sinnes, conatus, the endeavour and aime (etiamsi effectus non sequatur, puniri debet) is punishable. Bartoln. in l. Si quis non dicam rapere.

The King hath aimed at the destruction of his Subjects, through the power of wicked counsellors, and we are to consider not the intenton of the workes, but the nature and intention of the work; Papists are in armes, their religion, the Conspiracy of Trent, their conscience (if they have any) their malice against the covenant of Scotland which abjureth their Religion to the full, their ceremonies, their Prelates lead, and necessitate them to root out the name of Protestant, Religion, yea and to stab a King who is a Protestant. Nor is our King remaining a Protestant, and adhering to his oath made at his Coronation in both kingdomes, Lord of his own person,

master of himself, nor able as King to be a King over Protestant subjects, if the Papists now in armes under his standard, shall prevail.

The King hath been comp[gap]lled to go against his own oath and the Lawes which he did swear to maintaine: The Pope sendeth to his popish armies both dispensations, bulls, mandats, incouragements: The King hath made a cessation with the bloody Irish, and hath put arms in the hands of Papists. Now he being under the oath of God, tied to maintain the Protestant Religion, he hath a metaphysically subtle, pearcing faith of miracles, who beleeveth armed Papists, and Prelates shall defend Protestants, their Religion, and these who have abjured Prelats as the lawful sons of the Pope, that [gap], and as the law saith, Quilibet in dubio praesumitur bonus. L. merito praesumi. L. non omnes § à Barbaris de re milit. Charity beleeveth not ill: So Charity is not a foole to beleeve all things. So saith the Law, Semel malus, semper praesumitur malus, in eodem genere. C. semel malus de jure gentium in 6. Once wicked is alwayes wicked in that kind. Marius Salamonius I. C. in L. ut vim atque injuriam ff. de just. & jure. We are not to wait on strokes, the terrour of armour, omnium consensu, by consent of all is sufficient. n. 3. If I see (saith he) the enemy take an arrow out of the Quiver, before he bend the bow, it is lawfull to prevent him with a blow—cunctatio est periculosa. The Kings comming with armed men, to demand the Five Members, into the House of Commons, is very symbolicall, and Warre was printed on that fact, he that runneth may reade. His comming to Hull with an Armie, saith not he had no errand there, but aske what it was in the clock. See Novellus that learned Venetian Lawyer, in a Treatise for defence, he maketh continuatam rixam, a continued upbraiding a sufficient ground of violent defence. He citeth Doctores Comniter. in L. ut vim. ff. de just. & jure. Yea he saith, Drunkennesse, defens. n. 44. Error, n. 46. Madnesse, n. 49, 50. Ignorance, n. 51, 52. Impudence, n. 54. Necessity, n. 56. Lasciviousnesse, 58. Continuall reproaches, 59. The fervour of anger, 64. Threatning, 66. Feare of imminent danger, 67. Iust grief doe excuse a man from homicide, and that in these he ought to be more mildly punished, Quia obnubilatum & mancum est consilium, Reason in these being lame and clogged. Ambros. l. 1. offic. Qui non repellit injuriam à socio, cum potest, tam est in vitio, quam ille quifacit. And as Nature, so the Law saith, When the losses are such as can never be repaired, as Death, Mutilation, l[gap]sse of Chastity, Quoniam

facta infecta fieri nequeunt, things of that kinde once done, can never be undone, we are to prevent the enemy, l. Zonat. tract. defens. par. 3. l. in bello §. factae de capit. notat. Gloss. in l. si quis provocatione. If the King send an Irish Rebell to cast me over a bridge, and drowne me in a water, I am not to do nothing, while the Kings emissary first cast me over, and then in the next room I am to defend my self; but nature and the law of self-defence warranteth me (if I know certainly his ayme) to horse him first over the bridge, and then consult how to defend my s[gap]lfe at my own leasure.

Royalists object that David in his defence never invaded and persecuted Saul; yea, when he came upon Saul and his men sleeping, hee would not kill any; but the Scottish and Parliaments Forces not onely defend, but invade, offend, kill and plunder; and this is cleerely an offensive, not a defensive warre.

Answ. There is no defensive warre different in spece and nature from an offensive warre, if we speake physically, they differ onely in the event and intention of the heart, and it is most cleare that the affection and intention doth make one and the same action of taking away the life, either homicide, or no homicide: If a man out of hatred deliberat[gap]ly take away his brothers life, he is a murtherer catenus, but if that same man had taken away that same brothers life, by th[gap] [gap]lying off o[gap] an Axe he[gap]d of[gap] the staffe, while he was hewing timber, he neither hating him before, nor intending to hurt his brother, he is no murtherer, by Gods expresse Law, Deut. 4.42. Deut. 19 4. Ioshua 20.5. 2. The cause betweene the King and the two Parliaments, and betweene Saul and David, are so different in this, as it is much for us: Royalists say, David might if he had seene offending to conduce for s[gap]lfe-preservation, have invaded Sauls men, and say they, the case was extraordinary, and bindeth not us to selfe-defence; and thus they must say; for offensive weapons, such as Goliahs sword, and an hoast of armed men, cannot by any rationall men be assumed (and David had the wisdome of God) but to offend, if providence should so dispose; and so what was lawfull to David, is lawfull to us in self-defence, he might offend lawfully, and so may we.

2. If Saul and the Philistims ayming (as under an oath) to set up Dagon in the land of Israel, should invade David, and the Princes and Elders of Israel who made him King; and if David with an hoast of armed men, he and the Princes of Israel, should come in

QUEST. XXXI. Whether or no self-defence against any unjust violence offered to the life, be warranted by Gods Law, and the Law of Nature and Nations? (3)

that case upon Saul and the Philistims sleeping, if in that case David might not lawfully have cut oft the Philistims, and as he defended in that case Gods Church, and true Religion, if he might not then have lawfully killed (I say) the Philistims, I remit to the conscience of the Reader. Now to us Papists and Prelates under the K[gap]n[gap]s banner, are Philistims, introducing the Idolatry of Bread-worship and Popery, as hatefull to God, as Dagon-worship.

3. Saul intended no arbitrary government, nor to make Israel a conquered people, nor yet to cut off all that professed the true worship of God; nor came Saul against these Princes, Elders and people who made him King, only Davids head would have made Saul lay downe Arms; but Prelates, and Papists, and Malignants under the King, int[gap]nd to make the Kings sole will a Law, to destroy the Court of Parliament, which putteth Lawes in execution against their Idolatry; and their ayme is that Protestants be a conquered people, and their attempt hath been hitherto to blow up King and Parliament, to cut off all Protestants, and they are in Armes in divers parts of the Kingdome, against the Princes of the Land, who are no lesse Judges and deputies of the Lord, then the King himselfe; and would kill, and do kill, plunder and spoyle us, if we kill not them. And the case is every way now betweene Armies and Armies, as betweene a single man unjustly invaded for his life, and an unjust invader: neither in a naturall action, such as is self-defence, is that of policy to be urged; none can be Judge in his owne cause, when oppression is manifest; one may be both agent and patient, as the fire and water conflicting; there is no need of a judge, a community casts not off nature; when the judge is wanting, nature is judge, actor, accused and all.

Lastly, no man is Lord of his owne members, of his body, m. l. liber homo ff. ad leg. Aqui. nor Lord of his owne life, but is to be accountable to God for it.