h. If the king may pardon those whom the law condemns
But, because life is precious, and greatly desired, perhaps it will be demanded that the king be granted the power to pardon and absolve those whom the law has condemned.
This I refuse. Otherwise, this cruel pity would keep alive thieves, robbers, murderers, rapists, poisoners, sorcerers, and other plagues of mankind, as history says tyrants have done before now in many places, and to our woeful experience, we see at this present time. Therefore, the stopping oflaw in this kind will, by impunity, much increase the number of offenders.
So that he who received the sword of authority from the law to pardon offences will thus arm offenders against the laws, and send the wolf into the fold, which he ought to have secured against their ravenous outrage.
But for so much that it may so happen in some occasions that the law is mute, therefore there is need of a speaking law, and that the king being, in some cases, the ablest expositor, taking for the rule of his actions, equity and reason, which as the soul of the soul may so make clear the law's intention, and it may be that the offence is rather committed against the words than the intention of the law. In which case the king may free the innocent offender from the guilt thereof because a just and equitable exposition of the law may in all good reason be taken for law itself, as being the closest thing to the intention of the law-makers.
Notwithstanding, lest passion should supplant reason, kings should imitate the practice of the emperor Severus, not to determine absolutely anything before it were maturely discussed by upright and discreet men.
And so the king may rigorously punish the murderer; and yet, notwithstanding, pardon him, who casually, and without any such purpose, kills a murderer. He may put to death the thief, and yet pardon that man, who, in his own defence kills him that would have robbed him. Briefly, in all other occurrences, he may distinguish, as being an established arbitrator and thus neutral, manslaughter from malice, fore-thought a good purpose from the rigor of the law, without favoring at any time malice or treason. Neither by the right omission of this duty can he gain any true esteem of merciful men: for certainly that shepherd is much more pitiful who kills the wolf, than he who lets him escape: the clemency of that king is more commendable who commits the malefactor to the hangman, than he who delivers him; by putting to death the murderer, many innocents are delivered from danger: whereas by allowing him to escape, both he and others through hope of the like impunity, are made more audacious to perpetrate further mischief, so that the immediate act of saving one delinquent, arms many hands to murder many innocents. There is, therefore, both true mildness in putting to death some, and as certain there is cruelty in pardoning others. Therefore, as it is permitted the king, since he is the custodian of the law, in some cases to interpret the words, so in all well-ordered kingdoms, the council of state is responsible to examine the king's interpretation, and to moderate both his severity and facility. If, through the corruption and weakness of men, this have not been so really and thoroughly observed as it ought: yet, notwithstanding, the right always remains entire, and only integrity and courage in the parties is necessary to make it effectual.
But not to heap up too many examples in a matter so manifestly clear, it has been practiced in this manner in France. For there we have often seen those put to death to whom the king had granted his charter of pardon; and those pardoned, whom he commanded should be put to death; and sometimes offences committed in the king's presence remitted, because there was no other witness other than himself. This happened in the time of Henry II to a certain stranger, who was accused by the king himself of a grievous offence. If an offender, by the intercession of friends, gets his pardon granted by the king, the chancellor upon sufficient cause may cancel it. If the chancellor connive, yet must the criminal present it before the judges, who ought not only carefully to consider whether the pardon were gotten by surreptitious or indirect means, but also if it be legal, and in due form. Neither can the delinquent who has obtained his charter of pardon make use of it, until first he appeal in public court bare-headed, and on his knees plead it, submitting himself prisoner until the judges have maturely weighed and considered the reasons that induced the king to grant him his pardon. If they be found insufficient, the offender must suffer the full punishment of the law, just as if the king had not granted him any pardon at all. But, if his pardon is allowed, he ought not so much to thank the king, as the equity of the law which saved his life. The manner of these proceedings was excellently ordained, both to contain the king within the limits of equity, lest being armed with public authority, he should seek to take revenge according to his personal whims, or out of fancy or partiality, remit the wrongs and outrages committed against the public safety: as partly also to restrain an opinion in the subject, that anything could be obtained of the king which might prejudice the laws. If these things have not been observed in our times, even so that which we have formerly said remains always certain, that it is the laws which have power over the lives and deaths of the inhabitants of a kingdom, and not the king, who is but administrator and conservator of the laws.
The king's subjects are his brethren, not his slaves
For truly neither are the subjects, as it is commonly said, the king's slaves, or bondmen: being neither war prisoners nor bought for money. But if as one entire body they are considered as lords, as we have formerly proved; so each of them in particular ought to be held as the king's brothers and kinsmen. And to the end that we think this isn't strange, let us hear what God Himself says when He prescribes a law to kings: That they lift not their heart above their brethren from amongst whom they were chosen. Whereupon Bartolus, a famous lawyer, who lived in an age that bred many tyrants, also drew this conclusion from that law, that subjects were to be held and used in the quality and condition of the king's brethren, and not of his slaves. Also king David was not ashamed to call his subjects his brethren. The ancient kings were called Abimelech, a Hebrew word which means "my father the king." The almighty and all good God, of whose great gentleness and mercy we are daily partakers, and very seldom feel His severity, although we justly deserve it, yet is it always mercifully mixed with compassion; whereby He teaches princes, His lieutenants, that subjects ought rather to be held in obedience by love, than by fear.
But, lest they should have anything against me, as if I sought to detract too much from the royal authority, I believe it is so much the greater, by how much it is likely to be of longer continuance. For, says one, servile fear is a bad guardian, for that authority we desire should continue; for those in subjection hate them they fear, and whom we hate, we naturally wish their destruction. On the contrary, there is nothing more proper to maintain their authority than the affection of their subjects, on whose love they may safely and with most security lay the foundation of their greatness. And therefore that ruler who governs his subjects as brethren may confidently assure himself to live securely in the midst of dangers: whereas he who uses them like slaves, will live in much anxiety and fear, and may well resemble to the condition of that master who remains alone in some desert in the midst of a great troop of slaves; for look how many slaves any has, he must make account of so many enemies, which almost all tyrants who have been killed by their subjects have experienced. Whereas, on the contrary, the subjects of good kings are ever as solicitously careful of their safety, as of their own welfare.
This may have reference to what we read in various places of Aristotle, and was said by Agasicles, king of Sparta, that is, that kings command as fathers over their children, and tyrants as masters over their slaves, which we must take in the same sense that the civilian Martianus does, to wit, that paternal authority consists in piety, and not in rigor, for that which was practiced under the acorns, that fathers might sell, and put to death their children at their pleasure, has no authority amongst Christians. In fact, the very pagans who had any humanity would not permit it to be practiced on their slaves. Therefore, then, the father has no power over the son's life, before first the law has first determined it, otherwise he offends the case law Cornelius against privy murderers, and by the case law Pompeius against parricides, the father is no less guilty who kills the son, than the son who murders the father. For the same occasion the emperor Adrian banished into an island, which was the usual punishment for notorious offenders, a father who had slain his son, of whom he had entertained a jealous opinion for his mother-in-law. Concerning servants or slaves, we are admonished in holy writ to treat them like brethren, but by human constitutions as hirelings, or mercenaries.
By the civil law of the Egyptians and Romans, and by the constitutions of the Antonines, the master is as well liable to punishment who has killed his own slave, as he who killed another man's. In like manner the law delivers from the power of the master, the slave, whom, in his sickness, he has altogether neglected, or has not afforded convenient food, and the enfranchised slave whose condition was somewhat better, might, for any apparent injury, bring his action against his patron. Now, seeing there is so great difference between slaves and lawful children, between lords and fathers, and, notwithstanding heretofore, it was not permitted amongst the heathen, to use their slaves cruelly, what shall we say, pray tell, of that father of the people, who cries out tragically with Atreus, "I will devour my children!"? In what esteem shall we hold that ruler who takes such pleasure in the massacre of his subjects (condemned without being ever heard), that he dispatched thousands of them in one day, and yet is not glutted with blood? Briefly, who, after the example of Caligula (surnamed the Phaeton of the world) wishes that all his people had but one head that he might cut it off at one blow? Shall it not be lawful to implore the assistance of the law against such furious madness, and to pull from such a tyrant the sword which he received to maintain the law, and defend the good, when it is drawn by him only for rapine, and ruin?
Whether the goods of the people belong to the king
But to proceed, let us now see whether the king, whom we have already proved does not have power over the lives of his subjects, is not at the least lord over their goods. In these days there is no rhetoric more common in the courts of rules, than of those who say "all belongs to the king." Therefore it follows, that in exacting anything from his subjects, he takes but his own, and in that which he leaves them, he expresses the care he has that they should not be altogether destitute of means to maintain themselves. This opinion has gained so much power in the minds of some rulers, that they are not ashamed to say that the pains, sweat and industry of their subjects is the proper revenue, as if their miserable subjects only kept beasts to till the earth for their insolent master's profit and luxury. And indeed, the practice at this day is just in this manner, although by all rights it ought to be exactly the opposite. Now we must always remember that kings were created for the good and profit of the people, and that these (as Aristotle says) who endeavor and seek the welfare of the people are truly kings; whereas those who make their own private ends and pleasures the only goal and aim of their desires, are truly tyrants.
It being then so that every one loves that which is his own, and that many covet that which belongs to other men, is it anything probable that men should seek a master to give him frankly all that they had long labored for, and gained with the sweat of their brows? May we not rather imagine that they chose such a man on whose integrity they relied for the administering of justice equally both to the poor and rich, and who would not assume all to himself, but rather maintain every one in the fruition of his own goods? Or who, like an unprofitable drone, should suck the fruit of other men's labors, but rather preserve the house for those whose industry justly deserved it? Briefly, who, instead of extorting from the true owners their goods, would see them defended from all ravening oppressors? What does it matter, says the poor country man, whether the king or the enemy make havoc of my goods, since either way I and my poor family will die of hunger? Of what importance is it whether an imported or home-bred caterpillar ruins my estate, and brings my poor fortune to poverty; whether a foreign soldier, or a sycophant courtier, by force or fraud, make me alike miserable? Why shall he be accounted a barbarous enemy, if you're supposedly a friendly patriot? Why is he a tyrant if you are king? Yes, certainly by how much parricide is greater than manslaughter, by so much the wickedness of a king exceeds in mischief the violence of an enemy.
If therefore, in the creation of kings, men gave not their own proper goods to them, but only recommended them to their protection; by what other right then, but that of freebooters, can they challenge the property of other men's goods to themselves? Therefore, the kings of Egypt were not (according to law) at the first the lords of particular men's estates, but only then when they were sold to them for corn, and yet may there well be question made of the validity of that contract. Ahab, king of Israel, could not compel Naboth to sell him his vineyard; but rather if he had been willing, the law of God would not permit it. The Roman emperors who had an unreasonable power, could neither by right have done it. At this day there is with much difficulty any kingdom to be found, where the meanest subject may not suit the king, and where many times the king is not cast in the suit, which succeeding, he must as well as others satisfy the judgment. And to this is not contrary, although at the first view it seem so, that which some of their most familiars have written of the emperors. That by the civil law all things were the king's, and that Caesar was absolute lord of all things, they themselves expound this their opinion in this manner, that the dominion of all things belongs to the king, and the propriety to particular persons, in so much as the one possesses all by the right of commanding, the other by the law of inheritance. We know that it is a common saying amongst the civilians, that if any make claim to a house or a ship, it doesn't follows therefore that he can extend his right to all the furniture or lading. And therefore, a king may challenge and gain right to the kingdom of Germany, France and England: and yet, notwithstanding, he may not lawfully take any honest man's estate from him, but by a manifest injustice, seeing that they are different things, and by law distinguished, to be possessors of the whole, and of all the particular parts.
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