originally conferred. As the original members of the society divested themselves of their natural right to make the laws necessary for the common good in order that that end might be more perfectly attained, it is clear that the person to whom that right had been delegated exercised it on condition that he really sought the common good. The ruler who consistently violated common right was a tyrant, and could and ought to be deprived of his sovereignty by the people who had conferred it. The case of tyranny, however, was one which Suarez was very slow to admit as sufficiently established in fact. He held, for instance, that the mere fact of ignorance or mistaken judgment on the part of the ruler was not sufficient to establish it. The ruler might promulgate a law which was in the general judgment prejudicial to the common good, and yet it might be the duty of the subject to obey that law in order to avoid the greater evil of division and turmoil in the State. Even in the case of a law which violated some precept of the Natural Law or of revealed Divine Law, it was incumbent on the subject only to refuse to obey it on the ground that it was not law and not because the ruler by imposing it had forfeited all competence to legislate or govern. But the right to depose the ruler still remained in the whole body of the citizens, and even the right if he resisted to put him to death. The justification of tyrannicide as a last necessity had been undertaken on grounds of natural right by many of the medieval theologians and even civil jurists. At all times a perilous doctrine, it was so in a supreme degree at a moment when political passions were stirred to their depths by the religious wars which were being waged within and between so many European states. It is well, therefore, to scrutinise with more than usual care Suarez' declared opinions in the matter.

The tyrant may be either a usurper or a legitimate ruler whose rule has become an intolerable oppression and a permanent menace to the well-being of the State. In the first case there is no bond and never has been any between ruler and people. By the very fact of his usurping an authority which he could not legitimately possess otherwise than by grant from the sovereign people, he has declared war upon them and given them an occasion of the just war of self-defence against him. The people may not be able to wage effective

ΙΟΙ

warfare against the usurper, or if they find his rule beneficent they may give a tacit consent to it which will in the end in some sense regularise it. But if, on the other hand, his usurpation of the sovereign power does violence to the public weal and it seems hopeless for the people to resist him in open warfare, any private citizen who, intending the defence of the Republic, takes his life is acting in the name of the whole State and in the course of its just warfare. The case of the legitimate ruler is entirely different. Here there is no question of anything more than the resumption by the sovereign people of a power which was conferred by it on certain conditions and has now been abused by serious and prolonged breach of those conditions. The people may then through its authorised and competent representatives solemnly deprive the legitimate tyrant of the power which he has abused, with a view to conferring it upon some worthier instrument. But it must be added that even in the case of the legitimate prince whose tyranny threatens to destroy the State, Suarez held that it was lawful to kill him if the defence of the Republic could not be achieved in any other way.

VII

What, then, we may ask in conclusion, was most significant and of most permanent value in this elaborate treatment of the nature of law and political power which we owe to Suarez ? First of all I would say his clear reaffirmation, as against all the doubts and hesitations of the later medieval writers and also as against the practical denial of the new school of rational jurists, of the Natural Law, i.e., of certain general principles of right inherent in the universal human reason, and having therefore the true character of law as directly willed by the Author of reason, as sufficiently promulgated in virtue of their rational character, and as therefore universally binding upon free rational beings. That these fundamental principles of justice universally known to men as men represented the actual nature of God and not merely His arbitrary will; that they or immediate inferences from them appeared in the mass of customary right which had become accepted by all nations; that the will of the human legislator, whether ecclesiastical or civil,

might indeed add to but could not annul or violate them; that the obligation to obey them could not be dispensed by any earthly authority; finally, that they were prior to every particular Divine Revelation-these were affirmations which made law the sovereign and accepted arbiter of human destiny and not the chance product of human convenience or, on the other hand, the arbitrary decrees of a power whose will man had no means of understanding and yet must under penalty obey.

Again in the sphere of politics Suarez, it seems to me, rendered an inestimable service by reaffirming in a more modern form the mediaval doctrine of popular sovereignty. The verdict of history is no doubt conclusive against the fantastic fiction of an original social contract or of its corollary, an original contract between peoples and their rulers. But in the sixteenth century that verdict had not yet been given. Meanwhile, that century had to elaborate some theory which would meet the new fact of independent ecclesiastical and civil authorities, of Church and State as no longer different aspects of the same society, but as two independent and sovereign societies. And in the intellectual atmosphere of the sixteenth century it was inevitable that such a theory should provide for a practically equivalent sanction for both authorities. If the ecclesiastical society was of Divine origin and ordering, so also must the civil society be if its independence were to be sufficiently guaranteed. The secular publicists for the most part met the difficulty by claiming an immediate Divine appointment for the civil ruler. Suarez scouted the notion as a fantastic perversion of history. The Divine appointment of the Kings of Israel to which the theorists of Divine Right triumphantly pointed was a special instance which it was merely absurd in the face of history as a whole to invoke. No, the Divine mandate of the temporal ruler was a mediated mandate. And it was mediated exactly through the delegation of his power from the political community, whose very existence was a consequence of the Natural Law and therefore of Divine ordering and origin. Whatever judgment may be formed of the correspondence of either of these theories with historic fact, there is no doubt as to which of them has proved to have the greater measure of pragmatic truth. The total community whose well-being the State exists to preserve is the natural

judge of what its well-being is, and, at least on Suarez' assumption of the existence and character of Natural Law, it is a competent judge. And to its judgment the temporary trustee of its sovereign power is always in the last resort responsible.

And finally Suarez did political theory a service in establishing on grounds of right and reason the complete independence of the secular state, its right as a societas perfecta, unhindered by the interference of any alien authority, to determine the requirements and conditions of its own continued existence. Here, indeed, exception may be taken to the use of the term secular state.' For Suarez, like Bellarmine, while denying absolutely the right of the Pope as supreme ecclesiastical ruler to interfere in the secular affairs of the civil state, yet reserved such a right where the interests of religion were concerned. And it is unnecessary to say that a right of this kind was capable of very wide interpretation, as it was in fact interpreted to include the deposition of a heretic king and the absolution of his subjects from their duty of obedience. Fortunately, however, the time-spirit made the exercise of this pretended right impolitic and its effective exercise impossible, so that Suarez' justification of the independence of the temporal authority in its own sphere prepared the way for the modern secular state, while his attempt to limit that independence may now safely be catalogued among the fossil remains of history.

A. L. LILLEY

BIBLIOGRAPHY

SUAREZ, FRANCISCUS: Tractatus de Legibus ac Deo Legislatore. 1613. HINRICHS, H. F. W.: Geschichte der Rechts- und Staatsprincipien. 1848-52. HOLLAND, T. E.: Studies in International Law. 1898.

KREBS, R. Die politische Publizistik der Jesuiten und ihrer Gegner. 1890. WERNER, K.: Franz Suarez und die Scholastik. 1861.

J

V

KING JAMES I

USTICE has seldom been done to James I, whether as a statesman or as a thinker. As a monarch his reputation

has suffered by comparison with his Tudor predecessors, as a theorist his merits have been obscured in part by his own pedantry, in part by the biased judgments of later historians. True, his advocacy of the Divine Right of Kings is familiar to every student of English history; but it is familiar mainly in its bearing on the great constitutional conflict of the seventeenth century. In English tradition the theory of Divine Right is inextricably associated with the despotic ambitions of the Stuarts, and the political philosophy of the "British Solomon" has too often been judged in accordance with exclusively English standards. In point of fact, the implications of the doctrine, at least as it was developed by James himself, are not solely or even mainly constitutional. As his latest editor-Professor McIlwain of Harvard-is at pains to show, James's theory of Divine Right was designed as much to support the temporal against the ecclesiastical authority as to defend the claims of absolutism against constitutionalism. Only by placing James against his appropriate historical background is it possible to arrive at a just estimate of the value and importance of his ideas.

The historical significance of the doctrine of the Divine Right of Kings lies, as Dr Figgis pointed out, in its assertion, as against the ecclesiastical authority, of the inherent and underived right of the secular power to exist. In this sense it was one of the most potent factors in the development of the modern theory of the State. Forged originally as a weapon of the Empire in its struggle with the Papacy, it subsequently became part of the armoury of the national kings who rose to power at the close of the Middle Ages. The religious revolution of the sixteenth century shattered the old ecclesiastical