The Duties and Rights of Subjects toward the Civil Power

by Tommaso Maria Cardinal Zigliara, OP


Cardinal Zigliara was a prominent Thomist philosopher and theologian in the latter half of the nineteenth century. Among many other accomplishments, he was closely involved with the preparation of the Leonine edition of the Angelic Doctor’s Opera Omnia (the first volume of which contains his synopses and annotations on St. Thomas’ Organon commentaries), and assisted in preparing the encyclicals Aeterni Patris and Rerum novarum. This present excerpt is taken from the Cardinal’s widely circulated manual, Summa philosophica (14th ed., 1910), vol. III. Philosophia moralis, lib. ii, cap. II, art. 7. De officiis et iuribus subditorum erga politicam potestatem, pp. 251-261. Translated by Timothy Wilson.


ARTICLE SEVEN

On the duties and rights of subjects with respect to political power.

I. Duties and rights in general. Often has it been said, that society ought to be conceived after the manner of an animated organic body, or, as I might better say it, after the manner of a human individual. Therefore, just as it is necessary, that in the individual the members should aid and support themselves, and all be at once submitted to the soul; so it is necessary that citizens, who as members compose a social body, should love themselves with greater love, mutually maintain and sustain themselves, and obey authority—authority, which is as it were the soul which vivifies the social body and preserves it in unity. But on the other hand, the civil authority ought sedulously to be intent on guarding the unity of the social body, in that manner, and with those means, which we have indicated above when treating of legislative authority.

II. First question. These things generally having been touched upon, the first question is concerning the duties of subjects with respect to legislative power; that is, whether subjects are held from conscience to be subject to laws given by the sovereign for the rule of society. But that the question might rightly be understood, note that laws are divided into moral and penal: the first are those, the transgression of which is culpable; but the second sort adjudge transgressors not to fault, but to some punishment to be suffered. Because, therefore, obligation, concerning which at present we speak, arises only from law as it is precisely human, if this law be exclusively penal, it is manifest that a transgressor indeed incurs punishment, but not fault. I say, if it is exclusively penal: for generally speaking, the intention of a human legislator is not directed solely to punishment, but he wills also to oblige the citizens morally to the observance of laws: whence generally speaking, human laws ought to be retained as moral-penal, unless the contrary should by some other reason be clear. Concerning moral laws, therefore, the question is whether they oblige citizens in conscience. I respond:

III. Human laws: 1˚ if they are just, oblige citizens in conscience; — 2˚ but they do not oblige PER SE, if they are unjust; — 3˚ yet these are able to oblige PER ACCIDENS, so long as they be not contrary to divine laws. St. Thomas proves this proposition, with respect to all of its parts, in IIaIIae, q. 96, art. 4, by means of the following brief and lucid argumentation.

First part. Laws are called just from the end, when they are ordained to the common good; and from the Actor, when the law given does not exceed the power of the one giving it; and from the form, when according to equality of proportion there are imposed upon the subjects burdens in the order to the common good. Man, considered as a citizen, is a part or member of society; but a part, if it be considered as a part, is ordained to the good of the whole: and hence it is, that the very nature of a part imports a certain diminishment, when it is necessary to preserve the whole. Therefore, if human laws are just, they oblige citizens in the forum of conscience, by that principle by which they are obliged to the good of society.

Second part. Now laws are unjust in a twofold way. In one way, through contrariety to a human good; and this, either from the end, just as when a President imposes laws which are burdensome to the subjects, not pertaining to the common utility, but more to his own cupidity or glory; or from the Actor, just as when someone promulgates a law exceeding the authority committed to him; or from the form, e.g., when burdens are dispensed unequally upon the multitude, even if they are ordained to the common good. Considered in this way, human laws are more violences than laws: because as Augustine says in Book I of his De libero arbitrio, ch. 5, n. 11, That seems not to be a law, which is not just. Wherefore such laws do not oblige per se in conscience, because no man is held in conscience to visit injustice upon another.

Third part. Nevertheless, if thereafter there should arise scandal or disturbance of public order, although unjust laws in conscience do not oblige per se, as has been said; yet because a citizen is obliged not to scandalize little ones, and not to disturb public peace, for this reason is he held, in external actions, not to make resistance to the aforementioned laws. In this case, therefore, and on account of this unique reason, “a man ought to cede even his own right, according to Matth. V, 41: If a man contend with thee in judgment, and take away thy coat, let go thy cloak also unto him. And whosoever force thee one mile, go with him other two.

Fourth part.In another way, laws are able to be unjust through contrariety to a divine good, as the laws of tyrants inducing to idolatry, or to any other thing whatsoever which is contrary to the divine law; and such laws (not only do not oblige in conscience, but more) it is in no way permitted to observe them: because, as is said in Acts V: It is necessary to obey God, rather than men,” as has been said above.

IV. Second question. But the preceding conclusion opens the way to another and most grave question, that is, of resistance to the unjust laws of sovereigns, and consequently, to yet another question, concerning resistance to a sovereign, who is placed at the head of a society to rule and govern. Is there in the subjects a right of resisting the unjust laws of sovereigns, and consequently the Tyrant himself, and of expelling him, lest he rule longer in the society which he oppresses? Behold the question, the solving of which requires that we proceed cautiously and step by step: for from its false solutions, either too much is allotted to the sovereign, or too much is conceded to the subjects; or, either the tyranny of the sovereign is justified, or the treason of the subjects.

V. First preliminary note. Resistance, generally taken, is opposition to the activity of another subject: morally taken, it seems to signify the same as disobedience: for then another is morally resisted when obedience is refused to him. But there is passive and active resistance; passive, if the subject suffers violence, but his will is not prevailed upon, as in the martyrs; active, if he repels violence inflicted with violence.

VI. Second preliminary note. The question is not concerned with passive resistance. For if human laws are just, they oblige in the forum of conscience; therefore that citizen is culpable, who even passively makes opposition to those laws; but much more is he culpable, if he actively resists the executive power of the laws themselves. And the same is absolutely to be held howevermuch a given law may seem to be of dubious justice: for in this case, it does not pertain to the citizen to judge of the law, because it does not pertain to him to make provision for the common good, but to the sovereign. If, finally, a law is manifestly unjust by contrariety to a divine good, since in this case a man is held from conscience not to obey, passive resistance is not only licit, but also commanded, as with St. Thomas we have said in the final part of the thesis, and as we are taught from the example of the martyrs. Briefly. Passive resistance is to be adjudicated from the morality of the law. Therefore, the entire question is concerned with active resistance, and with respect to laws manifestly unjust, whether contrary to the common good of society, or contrary to a divine good, by which resistance the executive, and consequently the legislative, power is so resisted, that violence is visited upon it by the subjects. It is asked, whether this resistance is licit? With one mouth do all toadies of popular sovereignty proclaim the affirmative part, who place the true subject of political authority in democracy, as they say, or in the multitude. Wherefore, laws, which are not pleasing to them, they proclaim unjust, so that they arrogate to themselves the right of stirring up the multitude and of rising up against legitimate sovereigns. What, therefore, should be thought in this matter, we shall say little by little.

VII. On the tyrant. Tyrant τύραννος signifies the same thing as king or sovereign, one who has fullness of power over his subjects; whence at first it was accustomed to be taken in a good way, as may be seen in the books of the Politics of Aristotle, in the Miltiade of Cornelius Nepos; in which sense Virgil, Aeneid VII, 265-6, says: Let him come, let not his face shudder at friends. — The part of peace, for me, shall be to have touched the right hand of the tyrant, that is of Aeneas. — But in the progress of time, the name of tyrant acquired a perverted sense, that is, for signifying sovereigns, who, abusing the powers of rule through arrogance, ruled, not by right and equitable laws, but by force and a certain wantonness of soul (Cf. Lexicon latinum, etc., in usum Seminarii Patavini, Tyrannus). In this sense, the nature of the tyrant is described by Tully, in De amicitia, cap. XV: «For this is the life of tyrants, in which, without doubt, there is able to be no faith, no charity, no confidence of steadfast goodwill: all things are always suspected and in turmoil: there is no place for friendship.»

VIII. On the tyrannical regime, and on tyrannical usurpation. Tyrant, taken in its unfavorable signification, commonly is distinguished into tyrant by rule and tyrant by usurpation. He is called tyrant by rule, who legitimately took up the principate in some society, but governs through laws manifestly unjust; he is called tyrant by usurpation, who through ambition, or in some other illicit manner secured power, as St. Thomas says in lect. 1 on Rom. 13.

IX. On resistance against a tyrant by usurpation. «He who through violence steals dominion, is not truly effected the prelate or ruler; and thus when the means are present, one is able to remove such dominion: unless perhaps he should presently be effected a true ruler, whether by the consensus of the subjects, or by the authority of a superior.» This St. Thomas writes, in II Sent., dist. XLIV, q. 2, art. 2: from which it is manifest, in the first place, that a tyrant by usurpation is able to become a legitimate ruler, as all agree. But the question is not concerning this.

Again, we are able to consider the tyrant by usurpation in a twofold manner, namely in the act of usurpation, that is, in the act of war unjustly inflicted on the state; and after the usurpation already has been completed, namely when, the state having been pacified, the tyrant is in control and draws up and promulgates laws not by right, but in fact, he yet is not had as a legitimate ruler. — In the act of usurpation, the tyrant is an unjust invader; and thus, just as an individual person is able to repel force with force, so a fortiori the Respublica, upon which force is visited, is able to repel force with force and kill the tyrant: and I say the Respublica, or the citizens, not by private authority, but by the public authority, whether express or tacit, of a legitimate ruler; or of those who legitimately carry on its successions: for it pertains, not to the private judgment of citizens, but to the public authority to judge concerning the common good of the Respublica. — St. Thomas speaks to this sense, in the place cited above, in the response to the fifth objection: «When some one steals dominion for himself, the subjects being unwilling or even coerced to assent, and when there is no recourse to a superior, through whom a judgment might be able to be made concerning the invader; then he who slays the tyrant for the liberation of the country is lauded and accepts a reward.»

But if the tyrant already is in control, yet in fact is not a legitimate ruler, absolutely speaking, the oppressed Respublica, or the legitimate ruler, if he exists, has the right against the tyrant, and through force is able to expel the unjust invader of the Kingdom. I say absolutely speaking: for if the tyrant should not be able to be expelled without great public calamities, and without the utmost detriment to the Respublica, neither is the legitimate ruler able to move against the tyrant, but the latter is patiently to be borne: because the ruler is to be procured for the good of the Respublica. Therefore, if the legitimate ruler were to make war upon the tyrant only amid the utmost ruin of the Respublica, he would provide not for the Respublica, but for himself; and thus in another way, when he would oppose the tyranny, he himself truly would incur the mark of tyranny. In this hypothesis, therefore, the legitimate ruler retains the right, but the exercise of his right is suspended.

But with respect to laws which are promulgated by the dominating tyrant, and which look to the external ordering of the Respublica, these words wisely are given by Francisco Vitoria, Relection. theol., Relect. III De potestate civili, no. 23: «Since the Respublica is oppressed by the Tyrant and is not of its own right, it is neither able to promulgate laws, nor execute those previously given; if it were to not be obedient to the Tyrant, the Respublica would perish besides. Certainly it seems that laws, which are agreeable to the Respublica, oblige, even though they be promulgated by a Tyrant: not indeed because they are given by a Tyrant, but from the consent of the Respublica, since it is more pious, that laws given by a Tyrant be observed, than that none be observed. And certainly it would be unto the clear ruin of the Respublica, if rulers, who do not have just title, should occupy a kingdom, that there should be no judgments, nor that malefactors should in no way be able to be punished, or coerced (since the tyrant is not a legitimate judge), if his laws do not oblige.»

X. On resistance against a tyrant by rule. But the question chiefly is agitated concerning the tyrant by rule: namely, whether active resistance is licit in subjects against the tyrant, such that either he may be despoiled the kingdom by the subjects, or even punished by death. In this question to be solved, the teaching of the Catholic Church ought to be kept in mind. Therefore in the Council of Constance, session VIII, and in the Constitution of Martin V, Inter cunctas, there is condemned this proposition, which is the seventeenth of the forty-five articles of Wycliffe: «Peoples are able, according to their own will, to set aright delinquent Rulers.» — And in session XV by the same Fathers, and from Paul V, Constitut. Cura dominici gregis of 14 January, 1615, there is proscribed this teaching: «Any tyrant is able and ought licitly and meritoriously to be killed by any vassal or subject of his, even by means of secret plots, and subtle flatteries, or adulations, notwithstanding any past oath or confederation made with him, the sentence or mandate of any judge not being hoped for.» — Cf. Roselli, Ethica, ult. q., art. 5, where he also refers to the definitions of the Fifth Council of Toledo. — Tyrannicide, therefore, perpetrated by private authority, is illicit and to be detested: but from this, is any active resistance whatsoever to a tyrant illicit?

XI. First opinion. In this difficult question which is to be solved, therefore, various opinions are proffered by writers. Without doubt, wicked rulers are bestowed by God upon degenerate peoples, according to Osee XIII, 11: I will give thee a king in my wrath; and Job XXXIV, 30: Who maketh a man that is a hypocrite to reign for the sins of the people. From all these things St. Thomas wisely concludes, in De regimine principum I.6, that the fault of the people must be put away, so that the plague of tyrants might cease. — Nevertheless, all these things do not justify the Ruler. Woe to the Assyrian!, it is said in Isaiah X, 5; and the Assyrian was the rod of the wrath of the Lord sent to a deceitful nation, and against the people of the wrath of the Lord (ibid. v.5-6). But «when the Lord shall have performed all His works in mount Sion, and in Jerusalem, I will visit the fruit of the proud heart of the king of Assyria, and the glory of the haughtiness of his eyes» (v.12). The question therefore remains intact.

XII. Second opinion. It is said secondly, that tyrannical oppression is to be endured patiently, just as infirmities, and just as all the other evils with which the life of men is afflicted in this world. But by this response the question is changed, not resolved. For we ask about justice, and the response is about patience. Moreover, there is a distinction between the evil of tyranny and the other evils: for these latter are inflicted by God, with whom there is for us no right; but subjects have the strict right, that they be governed rightly by a Ruler, and thus they suffer unjustly by a tyrant, who is most culpable, even though God may permit that he exercise his tyranny, as has been said above. Finally, that the injustices of men ought patiently to be borne, I most willingly admit, but patience does not destroy the faculty in the one suffering of claiming his right; and if this is true among individual citizens it will be at least equally true in a republic in respect of the ruler. The question therefore remains.

XIII. Third opinion. Wherefore, others say that with citizens there is the right of protesting, of appealing, and of employing other similar means. This is very charming indeed. But: 1˚ The tyrant who, through laws clearly unjust (for in this hypothesis, if the reader well recalls, we speak exclusively), destroys the common good, and does away with the rights of the citizens, so much more certain it is that he would prevent the citizens from legally claiming their rights. And in this case? The difficulty returns, the solution of which we seek. — 2˚ There is able to be danger in delay: think if a tyrant should with certainty hand over the Respublica to a foreign dominion, or draw up laws unto the manifest ruin of the citizens, and other similar things: in which cases, either he is to be resisted, or to be yielded to. Is resistance licit? If it is not licit, then ridiculous is the right to a Ruler with respect to right rule in society which is granted to the citizens; if it is licit, then there is granted to the subjects some right which is not the simple right of protesting, appealing, etc. — I assert, therefore, the strict duty of first employing all peaceful means so that the tyrant might retreat from laws manifestly wicked and clearly destructive to society; but I do not see the question solved, in the hypothesis in which those means are inefficacious.

XIV. Fourth opinion. In the fourth place it is animadverted, that resistance to a tyrant heedlessly begets greater evils for society. For either armed resistance does not prevail, and the tyrant, being provoked, rages more, as St. Thomas says in De regimine principum I.6; or it prevails, and as the holy Doctor notes in the same place, «from this often there often come forth the most grave dissensions in the people, whether while resistance is made against the tyrant, or while, after the casting down of the tyrant, the multitude is divided into parties about the ordering of the regime. It also happens, that sometimes when the multitude expels the tyrant with the help of someone, he, power having been received, seizes the tyranny: and fearing that he might suffer from one that which he made upon another, he oppresses the subjects with a heavier servitude. — This reason, which is confirmed by experience, is valid. For in order to expel a lesser evil, reason dictates that a greater evil ought not to be induced which is especially unto the ruin of society. And hence it is that if a tyranny is not excessive, it ought to be tolerated, because between two inevitable evils, the lesser evil is chosen. — However, we think that some things ought to be said in addition.

XV. Offensive resistance and defensive resistance. This distinction is necessary, although it may import a certain violence to the word, for resistance seems to signify defense, not offense. I call offensive resistance inflicted force; I call defensive resistance, repulsed force. Let us illustrate the thing by example. In an act of unjust aggression, he who is unjustly invaded repels force with force; and this is defensive resistance; but beside the act of unjust aggression, he who would attack an enemy, anticipating his aggression, would not repel force with force, but would inflict force, although he would do it in order to forestall aggression. This second resistance I call offensive.

XVI. OFFENSIVE resistance by subjects against a tyrant by rule is absolutely illicit. The reason adduced in the fourth opinion chiefly proves this our conclusion, and is confirmed with the following argument. Subjects, as subjects, inflicting force upon a tyrant, administer authoritative judgment upon the tyrant, and thus subject him to their own private judgment. But this is entirely illicit: for although the tyrant, not by force of authority (for this is per se to the good), but by his own ill will, enforces tyranny, he is yet the ruler by authority, and thus is juridically superior to the subjects, and is not subject to them. Therefore offensive resistance against a tyrant by rule is entirely illicit. — Add, that a tyrant by rule abuses the right of ruling. But from the abuse of a right, the right is not lost. A tyrant by rule, then, abusing the right, always has the right of ruling. But it is illicit to despoil someone of his right by private authority. Therefore absolutely illicit are the rebellions of subjects who undertake to remove a King, or punish him with death.

Against excessive tyranny, therefore, St. Thomas proposes three remedies in De regimine principum I.6.

1. «If it pertains to the right of some superior to provide the multitude of a king, a remedy against the wickedness of a tyrant should be expected.» But most of all does this right of defending the rights of peoples pertain to the Church, that is, to the Vicar of Christ, the Roman Pontiff: whatever those quarrelsome men should prate to the contrary, who, being subjects, affect the liberty for justifying rebellions, but when ruling, enforce tyranny to sustain the sovereignty of the State.

2. «If it pertains to the right of the multitude to provide itself of a king, an established king can, not unjustly, be deposed, or his power checked, by the same, if he tyrannically abuses regal power. Nor should it be thought that such a multitude, deposing a tyrant, acts unfaithfully, even if the multitude had previously subjected itself to the same tyrant in perpetuity: because he merited this, not comporting himself faithfully in the rule of the multitude, as the office of the king demands, so that that which was appointed to him by the subjects is not retained.» — Note the words of St. Thomas, if it pertains to the right of the multitude; as if he should say: if the right of judging and disposing of the person of the king (e.g. if such be fundamental laws of the kingdom) pertains to the multitude. It is therefore a simple hypothesis which the Angelic Doctor poses, lest he should omit some member in his disjunctive argumentation; but he does not say that this condition is always shown to be true: indeed, by the nature of the hypothesis he supposes in fact that the contrary is able to be granted, as is commonly granted.

3. «But if no human help is able to be had against a tyrant at all (according to the two preceding hypotheses), then recourse ought to be had to God the king of all things, Who is a help in times of tribulation. For it is within His power, that He might turn the cruel heart of a tyrant to gentleness, according to the words of Solomon, Proverbs XII, 9: The heart of the king is in the hand of God, whithersoever He will He shall turn it.»

XVII. Against excessive tyranny, DEFENSIVE resistance is able to be licit. I say against excessive tyranny: for, as St. Thomas emphasizes in De regimine principum I.6, if there be not an excess of tyranny, it is more useful to tolerate a moderate tyrant for a time, than to be entangled in many dangers by acting against the tyrant, which dangers are more grave than the tyranny itself, and which dangers the citizens are thus held to shun, lest the good of the Respublica be endangered. — These things being declared, the thesis is proved. It is commonly conceded, that passive resistance to laws manifestly unjust is licit for subjects. Hence St. Thomas, in IaIIae, q. 96, art. 4, ad 3, speaking of a law which imports an unjust burden upon the subjects, to which the order of power divinely given does not extend itself (as they are laws onerous to the subjects and not pertaining to the common utility, but more to the cupidity or glory of the legislator, or laws given above the power committed to the same legislator), affirms that in such things a man is not obliged to obey the law, if he is able to resist without scandal or greater detriment. All of these things we have noted above in n. III with the same Angelic Doctor. — It is therefore certain that there is in subjects the right of resisting passively, that is, of not obeying the aforementioned tyrannical laws. But the tyrant, just as he abuses the legislative power, so is able to abuse the executive power, and do violence to the subjects, that they might be subject to tyrannical laws. Therefore, the right, which in this case is in the subjects, passively of not obeying a tyrannical legislative power, gives to them the right of resisting the violence of the tyrannical executive power, repelling force with force, in which we have said defensive resistance to consist: otherwise, the right of passive resistance would be absurd, if it were not able to be defended from an unjust invader. In which case, there is no resistance to authority, but to violence; not to right, but to the abuse of right; not to the sovereign, but to an unjust aggressor against a proper right in an act of aggression.

But in this matter, one ought to proceed in an orderly fashion. For according to those things which we have proved above (49, V), the immediate elements of civil society are not individuals, nor families, but Municipalities or Provinces, which are perfect societies (to which, consequently—unless other fundamental laws should be in force, society being bereft of a legitimate sovereign—belongs the right of electing a new sovereign, not to the multitude or people) and which are means between the civil power and families. To Provinces, therefore, or Municipalities, which have the true authority in respect of families, and not to individuals or families, does it pertain to employ defensive resistance and to repel, with united powers, the violence of a tyrant. But if even the Provinces or Municipalities, in place of protecting and defending the subjects, should become instruments of social tyranny, then tyranny is to be withstood in passive resistance alone, and they ought to desist from defensive resistance, not because of a defect of absolute right, but on account of the certainty of greater evil. In this case, therefore, recourse ought to be had to the Lord, the king of all things, Who is a help in times of tribulation, as we have said above with St. Thomas.

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