Theodore Beza on Rights, Resistance, and Revolution

Law and History Review ^ | John Witte Jr

[the_conscience]

Theodore Beza integrated these arguments and others, most decisively in his 1574 tract, Concerning the Rights of Rulers over Their Subjects and the Duty of Subjects toward Their Rulers. The title of this tract was ironic and strategic. Beza's real topics were the duties of rulers and the rights of their subjects. But to announce this on the book's cover would only guarantee its instant censure and rebuke. It proved hard enough to get the book published. The Genevan authorities would not approve its publication for fear of royal reprisal, and ultimately the book was published anonymously in Heidelberg, which lay beyond the reach of the French monarchy. The same circumspection marked the book's contents. Much of it was an understated lawyer's brief, chock full of recitations of precedent and careful distinctions and answers to anticipated counterclaims. These judiciously placed digressions cleverly broke up the book's main argument that quietly but cogently countenanced active resistance to tyranny in the context of outlining a revolutionary understanding of constitutional authority and liberty.	24
Beza did include some of the familiar arguments from the Bible, history, and law that the Magdeburg Confession of 1550 had crafted—so much so that later library catalogers sometimes treated his Rights of Rulers as a new edition of the Magdeburg tract.33 But while the Magdeburg Confession centered its legal argument on a theory of self-defense, Beza centered his legal argument on a theory of political covenant. His argument in a nutshell was a Christian social and government contract theory.	25
The political government of each community, Beza argued, was formed by a three-way "covenant"34 between God, the rulers, and the people. By this covenant, God agreed to protect and bless the rulers and the people in return for their proper obedience to the laws of God and nature, particularly the Decalogue. The rulers agreed to honor these higher laws and protect the people's essential rights, particularly those rights anchored in the Decalogue. The people agreed to exercise God's political will for the community by electing and petitioning their rulers and by honoring and obeying them so long as the rulers honored God's law and protected the people's rights. If the people violated the terms of this political covenant and became criminals, the magistrate could properly prosecute and punish them—and sentence them to death in extreme cases. If the rulers, in turn, violated the terms of the political covenant and became tyrants, they could be properly resisted and removed from office—and sentenced to death in extreme cases. The power to resist and remove tyrants, however, lay not directly with the people, but with their representatives, the lower magistrates, who were constitutionally called to organize and direct the people in orderly resistance to tyrants—in all-out warfare and revolution if needed.	26
Beza sought to balance divine and popular sovereignty. While the powers that be are ordained by God, they are elected by the people, who as God's image bearers on earth act on God's behalf and exercise God's sovereignty in choosing or consenting to these rulers. For Beza, the people's right to vote for or consent to their rulers was essential to the legitimacy of the political regime. Throughout history, and throughout our world today, he argued, magistrates are put into their offices by the election or consent of the people. To prove his point, Beza embarked on a twenty-page tour, part fact and part fiction, of ancient Israel, Greece, and Rome, of the history of Frankish tribes and French dynasties, and of sundry modern polities from Spain to Poland, Italy to England to show that the people either elect or consent to their political rulers.35 This was only a miniature version of the book-length historical argument for popular election or approbation of rulers that Beza's fellow reformer François Hotman had just developed in his Franco-Gallia (1573).36 Even with hereditary monarchs and emperors, Beza argued echoing Hotman, the people are still required to give their consent to these appointments to office and to consent to the laws they make for their regimes. "[T]he histories of ancient times recorded by profane writers establish—and indeed Nature herself seems to proclaim this with a loud voice—that rulers receive their authority ... by the free and lawful consent of the people." This consent is signaled in the oath that rulers swear before the people on assuming their political office. Beza called this oath-swearing ceremony the "liturgy" of the political covenant, an echo of the covenant-swearing ceremonies featured in the coronations of the ancient kings of Israel reported in the Hebrew Bible.37	27
The political covenant establishes not just a single ruler but multiple rulers who serve, in part, to check and balance each other. "[S]ince the origin of the world," Beza wrote, "there has never been a king—even if you were to select the very best—who did not in some measure abuse his authority. It must indeed be conceded, as the philosophers enlightened by natural reason alone have also recognized, that monarchical rule brings ruin and destruction upon the people rather than protection and welfare unless it is curbed by certain reins." Beza mused in passing that it might be better to have no monarch at all, since "God was from the beginning the sole monarch." But he focused his analysis on the "certain reins" that checked and balanced a monarch's proclivities to abuse and tyranny. Beza called for a "mixed constitution" that balanced monarchical power with the aristocratic and democratic power of the lower magistrates.38 He had just defended this "mixed constitutional" theory of government in a furious debate with Thomas Erastus, who was pressing for a considerably more expansive view of the monarch's role within both church and state.39 Beza wanted nothing to do with this "Erastian" form of government. Not only must the church have its own government separate from the state, he argued, but the monarch in the state must be buffered by an array of lower magistrates.	28
Beza distinguished two main kinds of lower magistrates who, together, provided a buttress against tyranny and a buffer "between the supreme magistrate and the people." One group of magistrates were the aristocratic "officials of the kingdom"—judges, governors, dukes, marquis, counts, barons, squires, and other officials with discrete "public duties and tasks" of administration and adjudication. All these lower magistrates derived their authority from the office of the supreme magistrate, though not from the supreme magistrate himself. Like the supreme magistrate, each swore a political oath that bound them to "the protection and defense of the kingdom, each in accordance with his own office." A second group of magistrates were the democratic representatives of the people, who gathered in periodic popular assemblies of the estates or who sat in provincial or national parliaments. They represented the interests of the people, "gave their consent" to the laws on the people's behalf, and stood up for the people's rights in times of crisis or tyranny. Both the aristocratic and democratic lower magistrates were called to help maintain the "rule of law" and "constitutional order" within the community, said Beza. Each was to protect "strenuously the good laws to whose defense they personally have sworn, each in accordance with the station he has obtained in the constitution of the community, and in general all should strive to prevent the laws and conditions upon which that constitution rests from being undermined by any violence from without or from within." And again, it is just "according to all law, divine and human, that by reason of the oath taken by them [that they] ensure the observance of the laws."40	29
The three-way political covenant imposed "mutual obligations" on God, the rulers, and the people. First, Beza argued, the political covenant bound all political rulers to abide "by the law of God and the law of nature." This was the principal way by which God participated in the political covenant and "may truly be recognized among his subjects."41 The Decalogue was the best source and summary of the law of God and nature, said Beza, following Protestant commonplaces. Its two tables set the constitutional foundation of the commonwealth and outlawed all "impious or unjust" laws. "Impious laws" were those that violated the First Table commandments against false gods, graven images, blasphemy, or Sabbath breaking. "Unjust laws" were those that violated the Second Table commandments that required honor of parents, and prohibited killing, stealing, adultery, perjury, and coveting.42 The Decalogue was not the only form of higher law that grounded and bound the magistrate. Beza called magistrates to adhere to "natural law" and a broader "sense of natural justice" and "natural equity" as well. "[C]ommon principles of nature still linger in man after the fall," Beza insisted, "however corrupt" men might be. "This is so firmly established and enduring that nothing which is openly opposed and repugnant to them should be regarded as just and valid between men." It is thus eminently appropriate, said Beza, to rummage through the histories of classical Greece and pre-Christian Rome, and the customs of the Germanic tribes and feudal lords in search of evidence of natural law principles in action that could not be trespassed. In his Rights of Rulers, Beza mentioned only a few such historical examples of natural law violations, such as mandatory ritual slaughter of children or the self-mutilation of the bodies of male citizens.43 In earlier tracts on polygamy and marriage, he listed many other such violations—infanticide, incest, sodomy, concubinage, prostitution, and the improper marriages of children, of eunuchs, or of the mentally handicapped. No positive laws could command or countenance such open violations of the laws of nature and the laws of God.44	30
Second, in addition to requiring obedience of the laws of God and nature, the political covenant required political rulers to protect and promote the "rights and liberties" and "privileges and freedoms" of their subjects. "The people were not created for the sake of the rulers, but the rulers for the sake of the people," Beza proclaimed famously.45 And, in order to protect the people, rulers were required to protect and respect their basic rights. Beza looked again to the Decalogue as a convenient source and summary of the most basic rights of persons. A person's First Table duties toward God were the foundation for his basic religious rights—freedom for proper religious worship, speech, and Sabbath observance, and freedom from laws that coerced him to worship false gods, to maintain graven images, to swear false oaths, or to break the Sabbath. A person's Second Table duties toward neighbors were the foundation for his basic rights to life (freedom from killing), to property (freedom from stealing), to marital integrity (freedom from adultery and coveting), to reputation and fair process (freedom from false testimony), and to household integrity and privacy (freedom from coveting).46	31
Beza also looked beyond the Decalogue—to "natural law," "common decency," "natural equity," and the ius gentium—to fill out the list of natural rights of the people that the political covenant should protect. Beza focused especially on the natural rights that he considered to be of paramount importance to the health and happiness of the commonwealth. Foremost among these were the "natural religious rights" of all people. These Beza spelled out in several strong passages scattered throughout his Rights of Rulers and amplified in some of his other writings. Among religious rights, Beza emphasized "liberty of conscience," the right of a person to freedom from coercion into an unwanted form of faith, and freedom to change one's faith after being persuaded. He included "freedom of mission," the right to spread the Gospel not by the sword, but "by the influence of the Spirit of God alone," "by teaching, conviction, and exhortation." He spoke of the "free exercise of religion," by which he meant principally the right of Christians to "join in pious gatherings, there to hear the word of God and have communion of the sacraments as Christ ordained it should be done in the church." He alluded to the "freedom of government" of the church, the corporate right of each congregation and religious community to govern itself without state interference. He mentioned the "freedom to educate," which he elaborated elsewhere as the right of parents and guardians to bring up their children in their own form of faith, in the home, school, and church. Finally, he noted the "freedom to emigrate," the right of persons to move to another place where their religious rights would be more readily respected. Catholics and Lutherans enjoyed this right under the Peace of Augsburg (1555). Calvinists did not, and Beza argued here and at greater length later that Calvinists, too, should have freedom to emigrate peaceably.47 These latter views ultimately helped to influence the emigration provisions for Calvinists that found their way into the Edict of Nantes (1598) and eventually the Peace of Westphalia (1648).48	32
In addition to religious rights, Beza also took special note of each private person's rights to free speech and political petition: (1) the right of private parties to "rebuke the magistrate for the injustice committed in violation of the laws;" (2) the right of private persons to "lodge complaints with the supreme magistrate concerning the injustice of an inferior;" and (3) the right of private persons to petition lower magistrates about other "affairs touching the constitution of the kingdom." To criticize, petition, or sue a magistrate for his political failings was not to be discourteous, let alone disobedient, Beza insisted. The magistrate "suffers no injustice if he is constrained to do his duty." After all, the political office has been "entrusted to him under specified conditions," and there is no one better to discern a breach of condition than the people for whose benefit and protection the political covenant was created.49	33
In describing his doctrine of the political covenant, Beza also reflected an unusual solicitude for "freedom of contract"—the right of private parties to enter contracts, pacts, and agreements concerning marriage, commerce, banking, labor, property, and other transactions. Both here and in his earlier books on marriage and in his opinions on the Genevan consistory bench, Beza spelled out some of the rules of valid contract formation, reformation, and dissolution, the requirements of capacity and fitness to enter contracts, the limitations on contracts that involved usury, exploitation, price-gouging, sharp dealing, or unconscionable conditions.50	34
Beza used his expertise on marital and other private contracts to underscore, by analogy, some of the main features of political covenants and the proper grounds for their formation and dissolution. Both private contracts and political covenants that include terms that violate the basic laws of God and nature are null and void, and must be formally annulled, he argued. To enter into a private marital contract, for example, both parties must abide by biblical and natural laws that define marriage as a heterosexual monogamous union entered into presumptively for life and in hopes of the blessing of children. Marital contracts that stipulate unnatural or unconscionable conditions to the contrary, such as permitting each spouse to commit adultery, agreeing to marry while already being married to another, or conspiring together to abort or smother unwanted children, violate these basic conditions of what a marriage is. Such contracts must be involuntarily annulled even if the putative marriage has been consummated and yielded children.51	35
Political covenants are comparable, Beza argued. Like private contracts, political covenants must accord with the basic laws of God and nature for the political office and must be free from unconscionable or unnatural conditions. Thus a ruler's demands, for example, that his subjects "abjure the true faith for the sake of saving their lives," or "kill their parents or children," or engage in similar open violations of divine and natural law, can never be countenanced. Even if the rulers and people had voluntarily entered a political covenant on such terms, parties would not and could not be held to them. In private law, we annul or dissolve such unconscionable contracts without much issue in order to protect innocent parties from exploitation. In public law, we should do the same, said Beza. "[E]ven if a people, knowingly and of its own free will, has consented to something that in itself is manifestly irreligious and against natural law, such an obligation is null and void." It would be "so utterly unjust and manifestly sinful" to maintain such political covenants that "everyone not entirely destitute of human insight realizes that it cannot be exacted or performed by anyone with a good conscience."52	36
Also like private contracts, political covenants must be entered into voluntarily and not through force, fear, or fraud. By definition, therefore, magistrates who come to power by conquest, usurpation, or through fraudulent means are presumptively not legitimate authorities. Even if the people have entered into a purported political covenant under such circumstances, the covenant is voidable and the political magistrate is vulnerable to dismissal as a tyrant. Just as an innocent spouse who is coerced or tricked into marriage may choose to continue the marriage or sue for annulment after the wedding, so an innocent people who have been coerced or tricked into obedience may accept this magistrate or annul their relationship with him. "[I]f anyone strives to seize or has already usurped an unjust tyranny over others ... then shall private citizens before all else approach their legitimate magistrates in order" to remove him. But if the legitimate authority "connives" or "refuses to perform his duty then let each private citizen bestir himself with all his power to defend the lawful constitution of his country to whom after God he owes his entire existence." Even private "tyrannicide" is warranted as a last resort to remove such a usurping tyrant, Beza allowed.53	37
Again, like private contracts of marriage, political covenants that were freely and properly entered into might eventually end through divorce for cause. In a marriage, where one party spiritually and physically deserts the other or betrays the essence of the marriage by committing adultery or other crime, or inflicting mortal abuse on the other, the innocent party may sue for divorce. Similarly in a political community, Beza continued, where the magistrate deserts his people or betrays the fundamentals of his political office by becoming a tyrant, the people may properly seek to divorce him.54	38
But just as the dissolution of a private marriage contract through annulment or divorce requires orderly procedures, so does the dissolution of a public political covenant. Disgruntled spouses may not simply walk away from their marriages and declare themselves divorced or their marriage annulled. By reason of its consecration by the church and registration by the state, the marriage contract has become a public institution. It transcends the interests of the couple themselves and implicates the interests of the whole community. The disgruntled spouse must thus file complaints before the appropriate authorities, seek those authorities' intervention and protection if they are being abused, and request a public judgment that the marriage has ended by annulment or divorce, that the guilty spouse must be punished, and that the innocent spouse has been liberated. Until such public judgment has been rendered, the parties are bound by their marital contract, which they had accepted "for better or for worse."55	39
If these complex procedures are required for the dissolution of a private marital contract, Beza argued, surely one can see that they are doubly necessary for the dissolution of the public political covenant. For the political covenant involves far more parties, and the risks of dissolving it improperly are far higher. It can certainly not be left to random private persons to make and execute judgments whether the political covenant is null and void because it had been invalidly entered. Nor can it be left to private persons to judge whether a once-valid political covenant is now broken by reason of the magistrate's tyranny. These are constitutional judgments, not individual judgments. They are to be made only by properly constituted and authorized lower magistrates. And unless and until the lower magistrates make these judgments, individual members of the community are bound by the political covenant.	40
Beza returned to this argument by analogy again and again in an effort to tamp down the agitation for popular insurrection and anarchy that was breaking out anew in French Calvinist communities after the St. Bartholomew's Day Massacre. "If we must so far abide by private contracts, pacts, agreements, and understandings that we suffer damage rather than break our word, how much more should private citizens be on their guard lest they in any way refuse to honor an obligation entered into by a solemn and public agreement?" "[I]t is not becoming that men in private station should inquire over-curiously even concerning doubtful matters beyond their comprehension or station in life."56	41
This did not mean that private citizens had to practice martyrdom in the face of tyranny. They could and should still fully and freely exercise their rights under the political covenant. Exercising their religious rights, they could still worship and teach the true God, ignoring a magistrate's orders to the contrary. They could disregard laws that violated the laws of God and the Christian conscience. Or they could move away if the magistrate persisted. Exercising their free speech rights, they could still sue the magistrate for his failures and petition the lower magistrates to protect them and their rights. "When the supreme ruler has become a tyrant, he must be deemed by his own perjury to have freed the people from their oath, and not contrariwise, when the people justly asserts its rights against him."57 But unless and until the lower magistrates have acted to restrain a tyrant in accordance with the terms of the political covenant, private citizens are not allowed to take the law into their own hands. "[N]o private citizen is entitled on his own private authority to oppose the tyrant with violence against violence," said Beza. All such private retaliation and revenge leads to "endless disorders," yielding "a thousand tyrants" in place of the one who was removed. Instead, private persons must petition the lower magistrates who are charged with protection of the political covenant. If those lower magistrates fail to intervene, private citizens must either leave or suffer patiently and prayerfully.58	42
Like the Magdeburg ministers, Beza set out a hierarchy of political abuses escalating to tyranny to which the lower magistrates must respond. In cases of modest abuses by the higher magistrate, such as excessive taxes that pay for the magistrate's "wasteful or avaricious vices," or immoral behavior that betrays the majesty of his office, Beza left it largely to the "aristocratic" lower magistrates to offer the offender private admonition and reproof with no political or popular consequences. In cases of more serious violations of the "divine, natural, and constitutional rights" of the people, however, he called on both aristocratic and democratic magistrates to challenge him by "all lawful means available" and coerce him to return to his duties.59	43
The most obvious cases of tyranny for Beza were the magistrate's open and persistent violations of the First and Second Tables of the Decalogue. These were at once violations of the magistrate's duties to obey the laws of God and to protect the people's rights. "Once the free exercise of the true religion has been granted" in a community in accordance with the First Table of the Decalogue, Beza wrote, "the ruler is so much more bound to have it observed [that] if he acts otherwise, I declare that he is practicing manifest tyranny, and [his subjects] will be all the more free to oppose him. For we are bound to set greater store and value in the salvation of our souls and the freedom of our conscience than in any other matters, however desirable."60 The same is true when the magistrate betrays parents, families, and households or the rights to life, property, reputation, and procedure, guaranteed by the Second Table. This occurs where a magistrate "plunders his territory," "savagely slays the parents of his subjects, ravishes their wives and daughters, pillages their houses and possessions, and finally murders them as the fancy takes him," "without self-control," "against law and reason" and in "wanton breach of their sworn promises."61 If this belligerent and tyrannical conduct persists, and "peaceable remedies" are unavailing, the lower magistrates must "at once unanimously insist on an assembly of the Estates and meanwhile as far as they can and may to defend and protect themselves against undisguised tyranny." This democratic body must, in turn, protect the people by organizing the resistance to the tyrant, and exercising their "right to procure support from abroad, especially from the allies and friends of the kingdom." "They are certainly bound even by means of armed force if they can, to protect against manifest tyranny the safety of those who have been entrusted to their care and honor." Indeed, they must fight with all due "ferocity and determination," knowing that they are now acting on God's behalf and authority, and protecting God's covenant, God's people, and God's laws and rights.62	44
33.  But cf. Cornel Zwierlein, "The Importance of 'Confessio' in Magdebourg (1550) for Calvinism: A Historiographical Myth," Bibliothèque d'Humanisme et Renaissance 68 (2005): 27, who disputes the influence of the Magdeburg Confession on Beza. 34.  Beza, Rights, 35, 37, 64, 65, 81, 85. Here and elsewhere Beza used the terms "covenant," "contract," "compact," and "constitution" variously and interchangeably. 35.  Ibid., 41–64. 36.  Excerpted in François Hotman, "Francogallia," in Constitutionalism and Resistance in the Sixteenth Century: Three Treatises by Hotman, Beza, and Mornay, ed. Julian Franklin (New York: Pegasus, 1969), 55–70. 37.  Beza, Rights, 31, 34. 38.  Ibid., 49. 39.  See esp. Theodore Beza, Tractatus pius et moderatus de vera excommunicatione et christiano Presbyterio (Geneva, 1590), written already in 1569. 40.  Beza, Rights, 38–43, 74. 41.  Ibid., 28, 82. 42.  Ibid., 25. 43.  Ibid., 64–65. 44.  See esp. Theodore Beza, Lex Dei moralis, ceremonialis et politica (Geneva, 1577) and further Beza texts translated in John Witte, Jr. and Robert M. Kingdon, Sex, Marriage and Family in John Calvin's Geneva, 3 vols. (Grand Rapids, Mich.: W. B. Eerdmans, 2005– ). 45.  Beza, Rights, 30, 44. 46.  Ibid., 27–29, 66, 68, 74, 80, 83–85. 47.  Ibid., 28–29, 84–86. See also TT 2:120–21. 48.  On these developments, see Manetsch, Theodore Beza, 308–36. 49.  Beza, Rights, 28–29, 72–77, 81. 50.  See Theodore Beza, De repudiis et divortiis (Geneva, 1569); Choisy, L'État chrétien, 442–44. 51.  Beza, De repudiis et divortiis, 207–372. 52.  Beza, Rights, 44–45, 64–65. 53.  Ibid., 33–34. Beza qualified this position in his later Sermons sur l'histoire de la passion et sepulture de nostre Seigneur Iesus Christ, descrite par les quatre Evangelistes (Geneva, 1592), 282, 491, 501, where he denounced all private assassinations. See Robert M. Kingdon, "Beza's Political Ideas as Expressed in His Sermons on the Passion" (unpublished manuscript in author's possession). 54.  Beza, De repudiis et divortiis, 299–313. 55.  See sources in Witte and Kingdon, Sex, Marriage, and Family, vols. 1, 3. 56.  Beza, Rights, 27, 31, 38. 57.  Ibid., 27–28, 76. 58.  Ibid., 27, 36–38, 72–74. 59.  Ibid., 64–65, 72–80. 60.  Ibid., 27–29, 83–85. 61.  Ibid., 66, 68, 74, 80. 62.  Ibid., 27, 41, 72.

[the_conscience]

Martin Luther: Saint and Sinner, Priest and King

John Calvin: Spiritual liberty and Political liberty

The Confession of Magdeburg

[rae4palin]

“The power to resist and remove tyrants, however, lay not directly with the people, but with their representatives, the lower magistrates, who were constitutionally called to organize and direct the people in orderly resistance to tyrants—in all-out warfare and revolution if needed.”

Our representatives have abondoned us.

[the_conscience]

We may have to look to lower magistrates to help lead against tryanny.

The National magistrates have, for the most part, sucumb to tryanny.