THE CATHOLIC SECOND AMENDMENT

By David B. Kopel 1

Abstract

At the beginning of the second millennium, there was no separation of church and state, and kings ruled the church. Tyrannicide was considered sinful. By the end of the thirteenth century, however, everything had changed. The “Little Renaissance” that began in the eleventh century led to a revolution in political and moral philosophy, so that using force to overthrow a tyrannical government became a positive moral duty. The intellectual revolution was an essential step in the evolution of Western political philosophy that eventually led to the American Revolution.

This is a draft of an article was published in volume 29 of  the Hamline Law Review, beginning on page 519, in 2006.

Introduction

In the middle of the eleventh century, a spark of human liberty was lit—a spark which would eventually kindle the American Revolution. This article explores how—as a result of the “Little Renaissance” that began in the eleventh century—Western legal, political, and moral philosophy rediscovered the ancient right to overthrow a tyrannical government.

Part I of this article summarizes the Dark Ages views about the Christian duty to submit to tyrants. Part II article details one cause of the intellectual revolution: the feudal principle of reciprocal contractual obligation between lord and vassal, and by extension, between government and the governed. Part III turns to the “Investiture Controversy” over whether Popes or the Kings had the right to appoint Bishops. The bitter struggles over investiture provoked many churchmen to scathing denunciations of various monarchs, and the denunciations destroyed the old notion that all kings were God’s anointed. Burgeoning cities, especially in northern Italy, used the church versus state conflicts as an opportunity to assert their own autonomy and liberty, which was safeguarded by the right to bear arms enjoyed by residents of the city.

Part IV examines the most influential Western book written between the sixth century and the thirteenth: Policraticus, authored by John of Salisbury around 1159. The book argued that kings, bishops, and even fathers could be tyrants when they abused their legitimate authority. According to Policraticus, tyrannicide against evil kings could be a moral obligation.

Part V studies the canon law (church law) and national legal codes which affirmed the individual’s natural right of self-defense and the government’s duty to obey the law—and of the people’s right to depose a government which broke the law by infringing a person’s inalienable natural rights.

Part VI begins with the rediscovery of Aristotle, whose political writings showed the connection between liberty and the possession of arms; and the rediscover of Justinian’s enormous Corpus Juris legal treatise. The intellectual examination of Aristotle and of the Corpus Juris led to the development of Scholasticism, a new method of philosophical analysis. The greatest of the Scholastics was Thomas Aquinas. Aquinas’s masterpiece, the Summa Theologica, explained that overthrowing tyrant was a moral duty, because tyranny was itself a form of sedition against a justly-ordered society. Part VII outlines later developments in Catholic thought, and how Catholic ideas found their way to the American Revolutionaries, after being adopted by Protestant writers.

As the Dark Ages gave way to the Middle Ages, the use of force to resist a tyrant was changed from a sin into a holy obligation. Over five hundred years separate the European intellectual world that produced the Summa Theologica from the Americans who crafted the 1776 Declaration of Independence and the 1789 Second Amendment. Yet by the middle of the thirteenth century, the intellectual foundation for a right of revolution against tyranny—a right which Americans exercised in 1776 and safeguarded in 1789—had been solidly established.

I. Dark Ages

During the Dark Ages (from the fall of the Western Roman Empire, until approximately the middle of the eleventh century), the fatalistic tendency was to view all political power as granted by God, to see rulers as above the law, and unaccountable to any human being; people were obliged to obey any and all rulers. 2 Proper temporal rule seemed of little importance, since the world was going to end in the year 1000, or perhaps in 1033, a thousand years after the death of Jesus.

The king was sacred, and even the most advanced thinkers of the Dark Ages believed in unlimited submission to government. For example, Archbishop Hincmar of Rheims (approx. 805-881 A.D.), an important advisor to King Charles the Bald of France, wrote a pair of treatises distinguishing a king (who assumed power legitimately and who promoted justice) from a tyrant (who did the opposite). Yet even Hincmar argued that even tyrants must be obeyed unquestioningly. 3 When Louis the German invaded France in 858, Hincmar remonstrated him with words from Psalms: “Thou shalt not touch the Lord’s anointed.” 4

Kings were considered Christ on earth, and during coronation, the bishop would gird-on the king’s sword, symbolic of the king’s role in fighting the Church’s enemies. 5

II. Feudalism

The feeble Western Roman Empire had been conquered by barbarians in the fifth century. 6 After the fall of the Roman Empire, some relatively potent states had arisen, such as Spain under the Visigoths or France under the Carolingian kings. But by the end of the first millennium, Gothic Spain and Charlemagne’s France were distant memories. The essential function of government, providing security against attack, was no longer provided by the employees of a king in a distant capital.

Instead, protection was provided by micro-government—by the lord of the nearest castle and a few knights in his service. That castle was the fortress into which the local community could retreat in case of attack. “All politics is local,” observed former U.S. House Speaker Tip O’Neill, and politics was especially local during the feudal age.

Because churches, monasteries, and convents were frequent targets of attack, they relied heavily on the local lord and his knights for protection. As a result, the church increasingly came under control of the micro-states. 7

Under feudalism, all ownership of land was based on reciprocal obligation. The farmer received protection from the lord of the castle, and was obliged to give the lord a share of the farm’s produce. The lord would in turn hold his land in obligation to some greater lord. The lesser lord would pay his “rent” by providing military service (a certain number of knights and other fighters for a certain number of days) when called forth by the greater lord. The land-based, reciprocal obligations were inherited from one generation to the next. The obligations of “vassalage” ran up to the greatest landholders, who owned their land by feudal grant from the king.

Feudal obligations were created by mutual oath sworn before God. When kings ascended the throne, they too took feudal oaths, setting forth their obligations to the governed. 8 The foundation of civil society was reciprocal obligation. 9

As Glanvill’s famous 1187 treatise on English law explained, when a lord broke his obligations, the vassal was released from feudal service. 10 If a party violated his duties under an oath, and the other party suffered serious harm as a result, the feudal relationship could be dissolved diffidatio (withdrawal of faith). 11

Historian Friedrich Heer explains that the diffidatio “marked a cardinal point in the political, social, and legal development of Europe. The whole idea of a right of resistance is inherent in this notion of a contract between the governor and the governed, between higher and lower.” 12

Thus, another historian observes that modern society is founded on “one element…that can be directly traced to feudal origins: the notion that the relation between rulers and citizens is based on a mutual contract, which means that governments have duties as well as rights and that resistance to unlawful rulers who break their contract is legitimate.” Reciprocal feudal obligations “were the historic starting point of the limitation of the monarchy and the constitutional form of government, whose fundamental idea is that governments as well as individuals ought to act under the law.” 13

III. The Gregorian Reformation and the Investiture Controversy

In the Dark Ages, there was no separation of church and state, and it was the political class, not the priestly class, which held ultimate power in the church. Kings were often the head of the national church, and they appointed the bishops. Many bishops controlled vast feudal domains. 14 The church bureaucracy, with a near-monopoly on literacy, formed the backbone of local government in much of the West; so the power to appoint bishops amounted to the power to control much of the government.

Some bishops married, and their marital alliances solidified their ties to the royal regimes. Many bishops and priests were involved in corruption and violence, because they were appointed by politicians and were the friends and relatives of those politicians. 15

Kings and their courts often made the final decision on disputes over church law and governance. 16 After the fall of the Western Roman Empire, the Papacy frequently had to contend, not always successfully, for independence from the Byzantine Emperor, or from closer rulers. By the end of the first millennium, the Holy Roman Empire ran the Papacy. (The Holy Roman Empire consisted of most of Germany, much of Italy, and a part of France; the Empire claimed to be the successor state to the Western Roman Empire.) The Holy Roman Emperor appointed the Pope, and deposed him if the Pope stepped out of line. 17

Beginning in the eleventh century, the church began to re-assert its independence. In 1059, a Papal council declared that the Roman Cardinals, not the Holy Roman Emperor, would appoint the Pope. “Freedom of the Church” was the slogan. 18 In 1075, Pope St. Gregory VII declared papal supremacy over the church, and further declared the church’s independence from secular control. 19 In a series of Dictatus Papea (Dictates of the Pope), Pope Gregory went even further, asserting the Pope’s power to depose emperors, and to absolve subjects of unjust rulers from their oaths of fealty to the ruler. 20

Gregory VII started the Investiture Controversy, when he declared that no layman such as the Emperor could invest—that is, provide the vestments and the authority of office—for a bishop. Unsurprisingly, the monarchs refused to surrender their power of lay investiture. The result was a series of wars pitting the Holy Roman Empire against the Papacy and its allies. Pope Gregory VII announced the deposition of Holy Roman Emperor Henry IV, although the Pope did not succeed in forcing Henry off the throne. 21

In the struggle with the Holy Roman Empire, the Popes of the latter eleventh century often allied with the Normans. The Normans, or “Northmen”, were descendants of Vikings, and were quite skilled at offensive war and sea-faring.

The Vatican and the Holy Roman Empire reached a compromise at the Concordat of Worms in 1122: the Pope would appoint the Italian bishops, and the Holy Roman Emperor would appoint the German ones. 22

Pope Gregory VII’s “Papal Revolution” failed in its grand objective of uniting all Christian rulers under the Pope’s leadership and control. Yet the Papal Revolution would change the world, helping to promote the intellectual shift that would eventually make possible the American Revolution. Legal historian Harold Berman summarizes:

The most important consequence of the Papal Revolution was that it introduced into Western history the experience of revolution itself. In contrast to the older view of secular history as a process of decay, there was introduced a dynamic quality, a sense of progress in time, a belief in the reformation of the world. No longer was it assumed that “temporal life” must inevitably deteriorate until the Last Judgment. On the contrary, it was now assumed—for the first time—that progress could be made in this world toward achieving some of the preconditions for salvation in the next. 23

In addition, the Papal Revolution set off two centuries of conflicts between emperors and popes. The papal propaganda produced “a revolutionary breach of the continuity of European history; the transformation of the popular image of the Christian monarch from a sacred and sacrosanct figure into a diabolical object of execration.” 24

During the wars sparked by the Papal Revolution, various cities revolted against the rule of one of the parties. 25 In France and the Netherlands, towns forcibly asserted their liberties against ruling bishops who were subservient to monarchs; the municipal revolts were typically supported by groups loyal to the Papacy. 26 Other towns in the Western Europe also demanded their rights, and were given charters, grants, or other recognitions of rights from monarchs. Such rights might include limits on taxation, freedom for serfs who escaped to the town and lived there for a year, freedom of trade, the authority for a town to maintain its own courts and for townspeople not to be tried elsewhere, and freedom from feudal dues. Many of the towns were governed by popular assemblies or by elected councils.

Towns bore responsibility for their own defense, which meant that townsmen had the right to bear arms, and the duty to serve in the town’s militia. 27 The defenders of the cities “came from the middle strata or lower-middle strata (artisans and so on) of the city’s population. They had ideals to defend, freedoms to protect, and economic interests to pursue.” 28 The organizing principle of the emerging city-states was, like the polis in classical Greece, “based on the belief that the citizens should take an oath for the defense and interests of the community.” 29

The Assize of Arms statute enacted by England’s Henry II in 1181 required all townsmen to bear arms. 30

In northern Italy, cities such as Genoa and Venice began seeking autonomy or independence from the Holy Roman Empire. Their most important ally was the Papacy, which was seeking to establish its own independence from the Holy Roman Emperor and to expand its influence in Italy. Papal armies often fought in support of the cities. By the end of the thirteenth century, much of Italy had shaken off the Holy Roman Empire. Many cities, though, objected when the Pope imposed his own temporal rule on them. Urban revolts against Papal rule were common. 31

In the conflicts between Popes and monarchs, the intellectuals who took the Popes’ side argued that a king’s obligation is to see that justice is done; if a king fails to do justice, then he is not a legitimate king. Advocates of this view included Peter Damian (1007-1072, a church reformer), Anselm of Lucca (1036-1086, a bishop allied with Gregory VII), Cardinal Humbert (1000-1061, an advisor to the reforming Popes), Bernold of St. Blaien, Bernold of Constance (1050-1100, a monk and historian), Cardinal Deusdedit (1040-1100), Bonizo of Sutri (1045-1090, a bishop and noted polemicist), and Honorius Augustodunensis (1080-1156, a prolific and popular author). 32

Manegold of Lautenbach, a scholar at a monastery destroyed by the German Emperor Henry IV, wrote that the Pope had the authority to release subjects from their obedience to a ruler, as Pope Gregory VII had done. 33 Manegold analogized a cruel tyrant to a disobedient swineherd who stole his master’s pigs, and who could be removed from his job by the master. 34 So:

[I]f the king ceases to govern the kingdom, and begins to act as a tyrant, to destroy justice, to overthrow peace, and to break his faith, the man who has taken the oath is free from it, and the people are entitled to depose the king and to set up another, inasmuch as he has broken the principle upon which their mutual obligation depended. 35

Compare Manegold’s views with the American Declaration of Independence:

That to secure these rights, Governments are instituted among Men…That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government….

Manegold and Thomas Jefferson both claimed that rulers are contractually bound to protect the public good. Rulers who violate their duty thereby ceased to function as rulers; they might be removed, and replaced with others.

As far as we know, Jefferson never read Manegold. The idea articulated by Manegold, and elaborated by other Papal supremacists, was eventually transmitted to Jefferson and other American Founders by Protestant writers who were copying from the Catholics. 36 Although the Protestant writers abhorred the papacy, they freely built on the revolutionary theory which had been created by the Pope’s strongest intellectual defenders.

IV. John of Salisbury and Policraticus

Much of the debate about whether state was supreme over the church, or vice versa, centered on arguments over Luke 22:38. In the verse from the Last Supper, Jesus instructed the Apostles that from now on, they should carry swords. “Lord, here are two swords,” they responded.

There was no dispute over the literal truth of the story—that is, Jesus told his followers to carry swords, and they showed him the swords they would carry. 37 However, the passage was also considered to have tremendous symbolic implications. One sword was secular power, the other sword was spiritual power.

Pope St. Gelasius I (492-96) introduced the Two Swords symbol during an argument with Byzantine Emperor Anastasius I. The Pope declared “There are two powers by which chiefly this world is ruled: the sacred authority of the priesthood and the authority of kings. And of these the authority of the priests is so much the weightier.…” 38 Over eight hundred years later, the Two Swords idea was still prominent in political debate. 1302, Pope Boniface VIII issued the Bull Unam Sanctam, cited the two swords doctrine, and then claimed that the spiritual sword be superior to the temporal one. 39 Critics of Papal supremacy denied that the Pope held both swords, or that he held any swords, or that the spiritual sword was superior to the secular one. 40

The Two Swords debate was a dispute between two types of rulers about which one had supreme power. But the best-selling book of the twelfth century, Policraticus, transcended the dispute, by arguing that the fundamental question was not who had supreme power, but instead what were the people’s remedies when any ruler exceeded his rightful powers or failed to perform his duties.

The book was written by the most important political philosopher of the twelfth century, John of Salisbury. A cosmopolitan and very well-educated English bishop, 41 he was “the most accomplished scholar and stylist of his age.” 42

His book Policraticus (“Statesman’s Book”), published in 1159, was the first serious book of political science in the West for many centuries, and was perhaps the most influential book written since the Byzantine Emperor Justinian’s legal treatise Corpus Juris had been compiled six centuries before. The book “created an immediate sensation throughout Europe.” 43 “For over a century Policraticus was considered throughout the West to be the most authoritative work on the nature of government”; Thomas Aquinas, whose work later displaced Salisbury, consciously built on Salisbury’s foundation. 44 Throughout the Middle Ages, John of Salisbury’s “writings were extensively studied and repeatedly pillaged by jurists, preachers, reforming barons and humanists.” 45

As an English bishop, John of Salisbury saw first-hand the tremendous Church vs. State struggle in England. King Henry II (1154-1189) was determined to rule the church. Policraticus did not mention Henry II by name, but the book was dedicated to Thomas Becket, the great English courtier and archbishop with whom Salisbury served for many years.

In 1162 the King appointed Thomas Becket as Archbishop of Canterbury, the highest position in the English church. In 1164, King Henry forced Becket and other leaders to proclaim the Constitutions of Clarendon, which reasserted extensive royal authority over the church. Because the Constitutions of Clarendon were contrary to canon law (church law, discussed infra), Becket later repudiated the Constitutions. He publicly declared that King Henry was usurping power.

A bitter conflict ensued, and in 1170 an enraged Henry roared, “Will no one rid me of this pestilential priest?” Four knights heard the King’s remarks, and promptly rode off to assassinate Becket, at Canterbury Cathedral. (The story is retold in T.S. Eliot’s play Murder in the Cathedral.) Eleven years after Policraticus was published, John of Salisbury was present in Canterbury Cathedral when Becket was murdered. 46

The murder of Becket horrified public opinion in England and the Continent, and Henry accurately saw that his throne was in grave danger. He did penance, allowing himself to be scourged by some monks. The King worked out a compromise with the Church in which he revoked the Constitutions of Clarendon, and was allowed to claim that he never wanted Becket killed, but he did take responsibility for indirectly inciting Becket’s death by proclaiming the Constitutions in the first place. 47

Even before Becket’s death, Policraticus was the bestseller of the century. The author’s personal witness to the most infamous tyrannical crime of the twelfth century doubtless caused even more interest in what John of Salisbury had to say about resistance to tyranny.

The book was a shot at contemporary monarchs who oppressed the Catholic Church: Holy Roman Emperor Frederick Barbarossa (the teutonicus tyrannus), Roger II (the harsh Norman king of Sicily), Stephen of Blois (who ruled England, more or less, from 1136 to 1154 after starting a civil war to usurp the throne from his cousin Matilda, and who plundered the church and threw bishops in prison), Eustace (Stephen’s son, who was killed while pillaging the abbey of Bury St. Edmunds), and Henry II (Matilda’s son). 48

“All tyrants reach a miserable end,” John announced. For proof, he pointed to contemporary examples, such as Eustace, Geoffrey de Mandeville (the plundering Earl of Essex, who was killed in 1144), and Ranulf of Chester (another participant in the Stephen/Matilda war, killed in 1153). And then there were many stories from the past: the anti-Christian Roman Emperor Julian the Apostate was said to have been stabbed to death with a lance by the martyr Mercurius “on the command of the Blessed Virgin.” The Danish tyrant Swain, who imposed the Danegeld (a tax) on the British was slain by “the most glorious martyr and king Edmund.” And “Where is Marmion [another contemporary Briton] who, pushed by the Blessed Virgin, fell into the pit which he had prepared for others? Where are the others whose mere names would consume a book? Their wickedness is notorious, their infamy is renowned, their ends are unhappy.…” 49

Citing Biblical examples, John explained that “one may frequently kill and still not be a man of blood nor incur the accusation of murder or crime.” Pointing to King David and the prophet Samuel, he wrote, “This is indeed the sword of the dove, which quarrels without bitterness, which slaughters without wrathfulness and which, when fighting, entertains no resentment whatsoever.” 50

He explained that a good Christian should not be expected to obey the law or a superior’s order in all circumstances, for “Some things are…so detestable that no command will possibly justify them or render them permissible.” For example, a military commander might order soldiers to deny the existence of God or to commit adultery.

Similarly, if a prince “resists and opposes the divine commandments, and wishes to make me share in his war against God, then with unrestrained voice I must answer back that God must be preferred before any man on earth.”

John argued that intermediate magistrates, such as local governors, had a duty to lead forcible resistance if necessary, against serious abuses by the highest magistrate, such as the king. 51

Interestingly, the theory that “inferior magistrates” were not always bound to obey the supreme magistrate was also developing in canon law; many bishops were claiming that they were not in all circumstances required to obey the Pope. 52

Policraticus drew heavily on Bible stories, and on examples from ancient Rome. John announced “That by the authority of the divine book it is lawful and glorious to kill public tyrants.…” 53

Not since the fall of Rome had any Western writer provided a detailed theory of tyrannicide. 54 Policraticus made tyrannicide a positive duty:

[I]t is not only permitted, but it is also equitable and just to slay tyrants. For he who receives the sword deserves to perish by the sword.

But ‘receives’ is to be understood to pertain to he who has rashly usurped that which is not his, not he who receives what he uses from the power of God. He who receives power from God serves the laws and is the slave of justice and right. He who usurps power suppresses justice and places the laws beneath his will. Therefore, justice is deservedly armed against those who disarm the law, and the public power treats harshly those who endeavour to put aside the public hand. And, although there are many forms of high treason, none is of them is so serious as that which is executed against the body of justice itself. Tyranny is, therefore, not only a public crime, but if this can happen, it is more than public. For if all prosecutors may be allowed in the case of high treason, how much more are they allowed when there is oppression of laws which should themselves command emperors? Surely no one will avenge a public enemy, and whoever does not prosecute him transgresses against himself and against the whole body of the earthly republic. 55

So a tyrant was a traitor against the law and justice, and therefore was the worst of all enemies of the public. In sum, “As the image of the deity, the prince is to be loved, venerated, and respected; the tyrant, as the image of depravity, is for the most part even to be killed.” 56 Therefore, tyrannicide was “honourable” when tyrants “could not be otherwise restrained.” 57

There were two limits: First, poison could not be used. Second, a person could not rebel against a person to whom he legally owed fealty.

The political theory of the Dark Ages had insisted that obedience to God required obedience to any ruler, no matter how awful. John of Salisbury turned the theory on its head: “it is just for public tyrants to be killed and the people to be liberated for obedience to God.” 58 Compare this line to the words which Thomas Jefferson and Benjamin Franklin proposed placing on the Great Seal of the United States: “Rebellion to tyrants is obedience to God.” The words were the motto of John Bradshaw (1602–1659), the lawyer who served as President of the Parliamentary Commission which sentenced British King Charles I to death.

At great length, Policraticus denounced tyranny and justified tyrannicide. A few passages did counsel patient reliance on deliverance by God, warned against taking drastic actions based on small or isolated offenses, and urged prayer as the method of ending tyrannical oppression. The cautionary lines, however, did not undermine the revolutionary impact of the book.

Going beyond political tyranny, John of Salisbury explained that tyranny could occur in many forms; “many private men are tyrants.” 59 “[E]veryone is tyrant who abuses any power over those subject to him which has been conceded from above.” 60 A father, a land-owner, or a merchant could be a private tyrant, if he abused his power.

An ecclesiastical tyrant was a priest, bishop, or other church official who misused his power, harming rather than protecting the people in his spiritual care. 61

One of the problems of the tyranny of petty officials was that it was illegal to resist their depredations, even though “it is otherwise lawful to repel force with force without blame if one has safeguarded moderation.” 62 However, tyrannicide was appropriate for only actual rulers of governments, not for private tyrants. 63

While Britain’s John of Salisbury became the most famous exponent of the right of revolution, the idea was catching on in other nations too. The Parisian teacher Robert of Melun wrote an exposition of Paul’s epistles, and said that a tyrant does not act with lawful, potent power, but instead acts impotently. 64

Azo (1150-1230), a renowned professor of Roman law at the University of Bologna, made similar points: lesser magistrates held a share of the sovereignty; the king’s imperium was no larger than his iuridictio (legitimate authority); when a king exceeded his lawful authority and thereby became a tyrant (rex tyrannus), the subjects had a right and a duty to kill him. 65

In Aragon (a kingdom comprising about half of modern Spain), a well-known legal maxim stated that subjects should obey a king when he performs his duties, “and if not, not.” 66

V. Canon Law

The Little Renaissance began in the mid-eleventh century and reached its climax in the twelfth century. Much of the Western world begin to lift itself from the ignorance and squalor that of the preceding six centuries. Universities were established in Oxford and Paris. The administration of law and of law-making was regularized by the creation of written laws and the diffusion of literacy.

Around 1140, Gratian of Bologna brought together numerous, scattered sources to compile what became the unified foundational text of canon law (church law): the Decretum, also called the Corpus Discordantium Canonum (the body of discordant canons). Canon law became the foundation of the modern Western legal system in Europe.

A. The Natural Right of Self-Defense

Gratian’s Decretum relied heavily on natural law, which Gratian argued was universally applicable. “Natural law is common to all nations because it exists everywhere through natural instinct, not because of any enactment.” 68 Examples of natural law including “the union of men and women, the succession and rearing of children,…the identical liberty of all,…the return of a thing deposited or of money entrusted, and the repelling of violence by force. This, and anything similar, is never regarded as unjust but is held to be natural and equitable.” 69

In other words, the right of self-defense was not a right that was enacted by governments and granted to the people. The right was inherent in the natural order of the world, and the right existed everywhere. The principle of a natural right of self-defense was pervasive among the American Founders. The Founders viewed resistance to tyranny was seen simply as an application of the right of self-defense, which was a natural right regardless of whether a person was attacked by a lone criminal, or by a large criminal gang, in the form of a tyrannical government. 70

The national that the right of self-defense, and the corollary right to defensive arms, are natural rights was expressed by the United States Supreme Court in the 1875 case United States v. Cruikshank, involving Congressional powers under the Fourteenth Amendment. 71 Regarding the First Amendment, the Court wrote:

The right of the people peaceably to assemble for lawful purposes existed long before the adoption of the Constitution of the United States. In fact, it is, and always has been, one of the attributes of citizenship under a free government. It “derives its source,” to use the language of Chief Justice Marshall, in Gibbons v. Ogden, 9 Wheat. 211, “from those laws whose authority is acknowledged by civilized man throughout the world.” It is found wherever civilization exists. It was not, therefore, a right granted to the people by the Constitution. The government of the United States when established found it in existence, with the obligation on the part of the States to afford it protection.

A few pages later, the Court made the same point about the right to arms as a fundamental human right:

The right. . . of bearing arms for a lawful purpose. . . is not a right granted by the Constitution. Neither is it in any manner dependent on that instrument for its existence.

Thus, the Bill of Rights protected Americans against congressional interference with the pre-existing human rights recognized in the First and Second Amendments. However, if a mere private individual interfered with another private individual (preventing the other individual from assembling or from bearing arms), the Bill of Rights had nothing to say on the matter. The Bill of Rights legally restrained the federal government, and no-one else. 72

Gratian’s collection gave canon lawyers the necessary tool to begin more rigorous analysis of legal principles and difficult cases. The canon lawyers became sophisticated in assessing a person’s intent as part of his criminal culpability. “Direct intent” (such as when a person stabbed another for the purpose of killing him) was distinguished from “indirect intent” (such was when a person knew that a result would occur but had no wish to accomplish the result—for example, if a prisoner killed a guard in order to escape, but had no particular desire for the guard to be dead). 73

B. The Implications of the Natural Right of Self-Defense

The saying that “The church lives by Roman law” (ecclesia vivit lege Romana) acknowledged the great importance of Justinian’s Corpus Juris in canon law. 74 The Corpus Juris had recognized the right of self-defense, and so did the canon law. Echoing the Corpus Juris, the canon lawyer Raymond of Pennaforte wrote, “it is always lawful to meet force with force.” 75 Pope Innocent IV declared, “It is lawful for every man to move war in defense of himself and his goods.” 76 As Oxford historian M.H. Keen later noted, “In a society in which large scale violence was an everyday problem, it was essential for the individual to be guaranteed a right of self-defence…” 77

Jesselin de Cassagnes was a judge at a Papal court in Avignon, France—a city where medieval Popes often moved their headquarters when the political situation in Rome became untenable. De Cassagnes explained that even the powers of an absolute emperor were finite. The Emperor could deprive a subject of things that the subject had received under positive law (such as a grant of property from a previous emperor). But no emperor could deprive a subject of anything the subject owned by virtue of natural law. Thus, no emperor could take away a subject’s right to self-defense, or the subject’s right to repel force with force. 78

Like Justinian’s Corpus Juris, canon law discouraged most forms of self-help for people who had wrongfully been dispossessed for their lands, as long as legal remedies were available. 79

Canon law strongly favored the absolute right of a property owner to use his property as he wished, as long as he did not harm his neighbors. Taxation without consent was condemned as tyrannical. Should a ruler attempt to take a subject’s property, the subject had every right to resist forcefully. 80

Andraea Johannes, an early fourteenth century canon lawyer, used the right of resistance—which Aristotle had said was inherent in all free polities—to develop advanced principles of due process, including presumption of innocence, the right to public trial, and the right regular procedures in court. 81

C. The Rule of Law

To an English or American audience, the phrase “rule of law” signifies the obligation of the government to obey the law, and to follow only lawful procedures. In Japan, however, “rule of law” merely signifies the individual’s obligation to obey the government. 82 One of the very distinctive features of the Western legal tradition is that it places the government under the law. And because Western law is founded on canon law, it is canon law that is the source of this idea.

Gratian wrote: “It is just that the prince be restrained by his own ordinances.” 83 Further, the prince was restrained by natural law, even if the natural law were not codified in a positive ordinance. The canon lawyer Andreas de Isernia similarly wrote that “the Prince cannot do anything which is contrary to natural law, because it is immutable.” 84 Medieval law relied heavily on Roman law (discussed infra). The prestige of Roman law reinforced the principle of the rule of law. Steven Calabrisi explains:

Because Roman law, as developed by university law professors, became a superior source of authority in private law to either what kings or popes thought the private law should be, those kings, pope and other high government officials and church officials were subordinate to the law. 85

The battle to establish the rule of law, to create governments which genuinely were restrained by law, took many centuries in the West, and that battle has not been won with finality.

The very existence of the principle of the rule of law, however, had drastic implications for the developing right of revolution. It gave people a guideline for seeing when their rulers were no longer functioning as a legitimate government: when the rulers no longer obeyed the law. John of Salisbury was among the many authors who relied on the rule of law principle to distinguish tyranny from lawful government. In the long run, the rule of law principle helped people understand that removing a tyrant was restoring the law, not undermining the law.

Although laws were promulgated by church or secular authorities, it was believed that “God is the source of all law.” Like the Hebrews who revered the Torah, the Christians of Middle Age were just the opposite of legal positivists. They did not believe that law was a mere creation of human societies. Instead, true law came from the true God. The belief that God was the source of real law strengthened the idea of the “rule of law.” 86

D. The Saxon Mirror

While canon law was of applicable everywhere in the Catholic world, national legal codes also began to develop.

The Saxon Mirror (Sachsenspiegel), published around 1235, was the first legal treatise written in the vernacular German. Hundreds of editions were produced, and it served as a model for authoritative legal treatises in other central European nations. The Saxon Mirror remained valid law in some parts of Germany until the late eighteenth century. 87 The treatise did not recognize a distinction between morality and law, or between law and society. The Prologue announced “God is Law itself, therefore justice is dear to him.” 88

Killing in self-defense was lawful, although in some cases the burden of proof would be on the person claiming that he acted in self-defense. 89 Killing or wounding lawbreakers during the commission of a crime or flight therefrom was specifically authorized; the person who killed or wounded the lawbreaker was required to find six men who would back up the individual’s oath about the facts of the case. 90

Use of force to recover goods from a red-handed thief was allowed, and the victim could raise the hue and cry to summon community assistance. However, if two people had a genuine dispute about the right to possess certain goods, the proper solution was bringing the case to court. 91 Raising the hue and cry was also authorized for rape or robbery. 92

In some cases, a court would order both parties to a conflict not to carry weapons. Despite the order, the parties would still be allowed to carry swords, and to carry other weapons while serving the realm, or when participating in tournaments. Carrying of swords in castles, towns, or villages was allowed for residents, but prohibited for non-residents.

“Of course, one may carry weapons when responding to the hue and cry.” All able-bodied adult men, except for priests and a few others were obliged to respond to the hue and cry. They were required to follow the escaping criminal as long as they could track him—even if the criminal fled to another district, or hid inside a castle. 93

Bailiffs were appointed by judges, to help enforce the law, and bailiffs could raise the hue and cry to obtain assistance. 94

The Saxon Mirror announced: “a man must resist his king and judge if he does wrong, and must hinder him in every wrong, even if he be his relative or feudal lord. And he does not thereby break his fealty.” 95

E. Liber Augustalis

A more restrictive legal code was the Liber Augustalis proclaimed in 1231 by Emperor Frederick II of Sicily. The Liber too was meant to be a model for other states, and claimed to be based on divine reason. 96 The code recognized a man’s right to kill an attacker or thief “when he is in fear of his own life, or he who kills a nocturnal intruder while raising a clamor.” 97 “We desire that whoever hears a woman who is being attacked calling out should hasten to run to her assistance when he hears her.” A person failing to render aid would be fined. 98

The carrying of weapons by people below the noble class was restricted because “the bearing of forbidden weapons is sometimes the cause of violence and murder.” An exception allowed townsmen to carry swords when traveling on business away from their hometowns. 99 One effect of disarming the masses while allowing the nobles to carry arms meant that nobles could abuse the lower classes with impunity.

F. The Establishments of Saint Louis

The Etablissements de Saint Louis collected various customary laws around France. Defensive killing was allowed, provided that the killer had a wound proving which he had been attacked. 100 A commoner who struck his lord would suffer no penalty, if the lord had struck the commoner first. 101

A liegeman was required to assist his baron in fighting the king, if the king refused to grant the baron a hearing on a dispute. On the other hand, if the king would hear the baron, the liegeman had no obligation to help the baron fight the king. 102

G. Magna Charta and the Golden Bull

In England in 1215, the barons forced King John to sign the Magna Charta. 103 Coerced to sign at the point of a sword, the King agreed that everyone was entitled to “due process” of law, that no man would be imprisoned or exiled or fined “except by the lawful judgment of his peers or the law of the land”; that courts must operate according to regular procedures and at regular times and places; that the church should have its freedom; that criminal prosecutions must not be based on flimsy evidence; that new taxes would not be imposed without the consent of the taxpayers (the great land-holders); and that law enforcement officers such as sheriffs must know and obey the law.

Section 61 of the Magna Charta authorized a limited right of revolution. If the king disobeyed the Magna Charta, and refused a request from a committee of barons to address their grievances, then all barons had the right to summon forth the entire armed nation. Led by the barons, all free persons, bearing their personal weapons, would seize and hold the king’s castles, without harming the king or his family. 104

Similarly, in Hungary in 1222, the nobles forced King Andrew II to promulgate a “Golden Bull,” in which legal process was regularized and the government made subject to law; taxation without consent was prohibited; a legislature (the Diet) was created; and abusive officials were required to forfeit their office. 105

Just as the Magna Charta recognized the right to the people to use force to enforce the great charter against future kings, so did the Golden Bull: “We also ordain that if We or any of Our Successors shall at any time contravene the terms of this statute, the bishops and the higher and lower nobles of Our realm, one and all, both present and future, shall by virtue thereof have the uncontrolled right in perpetuity of resistance both by word and deed without thereby incurring any charge of treason.” 106

During the thirteenth century, there were many other rulers who were forced by circumstances to issue charters or other declarations of the rights of subjects. Sometimes, the ruler even had to acknowledge a limited right of revolution, as had England King John I and Hungary’s King Andrew II. For example, the crusader kingdom of Jerusalem acknowledged that the king’s vassal had a right to renounce fealty and to rebel in certain cases of abuse of justice by the king. 107 In Castile (a kingdom comprising much of modern Spain), the Pact of 1282 recognized that towns had a right of insurrection if the king violated the Pact. 108 Spain’s other kingdom, Aragon, likewise acknowledged the right of nobles to depose a king who violated judicial procedures or other legal rights. 109

Neither the Magna Charta nor the Golden Bull were enthusiastically obeyed by succeeding monarchs. 110 England went through many centuries of strife in attempting to compel kings of follow the Magna Charta. Hungarian governments were likewise uneven in their fealty to the Golden Bull. For example, after a failed peasant revolt in 1541, the government revised the Golden Bull to turn the peasants into serfs, and forbade them to bear arms. In 1688, the Austrian House of Habsburg consolidated its hold on Hungary by eliminating the right of Hungarian nobles to lead armed resistance to a monarch who grossly violated abused his powers. 111

VI. Scholasticism

A. Cicero

The Little Renaissance saw the rediscovery of many of the great thinkers of Antiquity, especially Aristotle. One of the few writers who had never disappeared from Western consciousness was the Roman orator Cicero (106-43 B.C.). Although he had been a pagan, he was widely read, admired, and quoted.

Latin was the universal second language of the educated class, and so scholars writing in England could easily read the works of their colleagues from Italy, France, or Spain. In the study of Latin, the young student would inevitably spend hundreds of hours reading Cicero.

Cicero was an early exponent of Just War principles: War’s only legitimate purpose was to secure peace. Defeated foes who had not been barbarous or blood-thirsty should be treated well, as when Rome gave citizenship to defeated Italian tribes. People who surrendered, such as inhabitants of a besieged city, should be protected and not abused. 112

Cicero used natural law to argue for the right of self-defense, in a speech prepared for the trial of Titus Annius Milo:

What is the meaning of our retinues, what of our swords? Surely it would never be permitted to us to have them if we might never use them. This, therefore, is a law, O judges, not written, but born with us—which we have not learned, or received by tradition, or read, but which we have taken and sucked in and imbibed from nature herself; a law which we were not taught, but to which we were made—which we were not trained in, but which is ingrained in us—namely, that if our life be in danger from plots, or from open violence, or from the weapons of robbers or enemies, every means of securing our safety is honorable. For laws are silent when arms are raised, and do not expect themselves to be wait for, when he who waits will have to suffer an undeserved penalty before he can exact a merited punishment.

The law very wisely, and in a manner silently, gives a man a right to defend himself…the man who had used a weapon with the object of defending himself would be decided not to have had his weapon about him with the object of killing a man. 113

Thus, natural law and common sense made it “morally right” to use deadly force to defend against a deadly attack.

Cicero noted that nothing in Republican Roman history was considered so glorious as tyrannicide. 114 Similarly, “What reason for war can be more just than driving off a despotism? For under this, even though the master happen not to be irksome, yet ‘tis a wretched that he can [be irksome] if he will.” 115

Cicero had lived near the end of the Roman Republic. During most of the first millennium after Christ, the Christian Church had aligned with the authoritarian values of the Roman Empire. In the second millennium, Christians were beginning to rediscover the virtues of the Roman Republic. Not surprisingly, Cicero was John of Salisbury’s favorite classical writer. 116

B. The Beginning of Scholasticism

The great intellectual movement which grew from the Little Renaissance was Scholasticism. Scholasticism treated certain texts (including the Bible, Justinian’s Corpus Juris, and Aristotle’s writings) as absolutely authoritative and correct. Yet Scholasticism recognized that there could be gaps and contradictions within a given authoritative text, and between different authorities. Scholasticism sought methodically to reconcile the seeming gaps and contradictions. 117 In Scholasticism, Roman law was combined with Greek philosophy, and both were then combined with values of the Judeo-Christian conscience, such as mercy and love. 118 In the difficulty of the synthesis that was attempted and achieved, Scholasticism was one of the greatest human intellectual accomplishments. Intellectual life had emerged from the Dark Ages.

Around 534 A.D., the Byzantine Emperor Justinian had ordered the creation of a compilation of all known Roman Law. This compilation had four parts: The Code (Codex Justinianus) was a collection of laws and decisions made by Roman Emperors before Justinian. 119 The Novels (Novellae constitutiones) were the laws created by Justinian. The Institutes was an introductory textbook summarizing the law. The most important part were 50 the books of the Digest (Digesta), which compiled excerpts from cases decided by Roman judges, and opinions written by legal scholars. Some of the material in the Digest was so old that it came from the time before Julius Caesar destroyed the Roman Republic and turned it into a dictatorship. 120

Justinian’s treatises provided the foundation of Byzantine law from thenceforward. The treatises also provided a compilation of law as it had existed in both the eastern and western Roman empires, before the western empire fell.

Like most of the rest of Roman learning, Justinian’s treatises were forgotten in the West during the Dark Ages. When a copy was rediscovered around 1080, it set off a legal revolution in the West. Western legal scholarship primarily focused on understanding and interpreting the Digest. It was not considered to be a set of laws of historical interest (what the law used to be five centuries before in Byzantium), but rather an authoritative statement of the true law that was at all times applicable everywhere. 121 Westerners called the collection of all four items in Justinian’s compilation the Corpus Juris Civilis, the body of civil law. 122 The Corpus Juris, which was enormously influential on canon law, became the foundation of the legal systems in most of continental Western Europe.

Because the authors of the Corpus Juris had written down all the legal rules and decisions they could find, and had merely organized the rules and decisions by subject-matter, there appeared to be many legal standards which were contradicted by other legal standards. Using techniques that have become part of the intellectual tools of every good lawyer, legal scholars at the University of Bologna and elsewhere looked for ways to reconcile the seemingly inconsistent statements in Justinian’s text. “Glossolators” provided a gloss—that is, explanatory commentary in the wide margins of the printed edition of Justinian’s Corpus Juris—which sought to explicate and reconcile the various rules.

Gratian was first to bring the Scholastic approach to canon law. The title of his treatise showed his objective of harmonizing “Discordant Canons.”

At the University of Paris, the great Peter Abelard was the first to apply Scholasticism to theology.

John of Salisbury, who had studied under Abelard, was the first to utilize the Scholastic method to politics, with his book Policraticus. 123

For a simple example of Scholastic methodology, let us consider the issue of self-defense. The Bible has some passages which order killing or use of force, and other passages which seem to prefer non-violence. Roman law had the rule “Force may be used to repel force” (Vim vi repellere licit). The Scholastics synthesized the various sources, and produced comprehensive rules about when force was legitimate (such as to enforce the law, self-defense, defense of another, to protect the property of oneself or another). The Scholastics also formulated condition limiting the use of force (such as not using more force than was reasonably necessary). On the foundation of the rules about personal defense, the Scholastics developed a theory of Just War, specifying the conditions under which a war could be just, and the restrictions on use of force even during a war. 124

C. Aristotle

Aristotle had been almost completely forgotten in the West during the Dark Ages, but his works were gradually being rediscovered. Christians encountered the works of the Spanish Muslim philosopher Averrhöes (1126-1198), who penned Commentaries on Aristotle. Also influential was Avicenna (980-1037), a Persian who wrote an influential medical treatise, and a philosophical encyclopedia which discussed Aristotle. 125 (Both Averrhöes and Avicenna were persecuted by Muslim authorities as heretics.) Some Christians also read the Jewish philosopher Maimonides, who knew Aristotle’s work. The first Latin translation of Aristotle’s Politics came in 1260, and caused an intellectual crisis. 126

Augustine of Hippo had written in the late fourth and early fifth century, a period when the Western Roman Empire was entering its final period of decline, leading to its dissolution several decades later. Augustine had regarded civic and political life as incapable of improvement. While he pondered how to live righteously on the earth, he kept his vision fixed on the world to come. No Christian writer even came close to the immense influence and prestige of Augustine. 127

In contrast, Aristotle was animated by a spirit of scientific inquiry and curiosity, by belief that political life could be developed in accordance with liberty, and by concern for life in the present, rather than the afterlife.

The rediscovery of Aristotle was sharply condemned by reactionary forces in the Church, including the Franciscans, who opposed the study of pagan thinkers. Nor did the reactionaries approve of Aquinas and other scholastics studying scholars who has written about Aristotle, such as the Muslims Averrhöes and Avicenna or the Jew Maimonides. 128

But starting at the University of Paris, and led by Dominican teachers, progressive scholars began searching for ways to reconcile Aristotle with Christian teaching. 129 The reconciliation might be considered the purest and most classic form of Scholasticism. Aristotle would soon eclipse even Cicero as an influence on the Western Christian mind.

In Politics, Aristotle maintained that each citizen should work to earn his own living, should participate in political or legislative affairs, and should bear arms.

Aristotle criticized the theory of the philosopher Hippodamus, who wanted a strict division of roles between skilled labor, agriculture, and defense. Aristotle found Hippodamus’ division defective, because such as division would lead to the unarmed being ruled by the armed: “the farmers share [in the voting franchise] without possessing arms, and the artisans share without possessing either land or arms, which makes them both, in effect, the slaves of the class in possession of arms.” 130

Aristotle considered the possession of arms synonymous with possession of political power: “when the masses govern the state with a view to the common interest…the defence forces are most sovereign body under this constitution, and those who possess arms are the persons who enjoy constitutional rights.” 131

Aristotle linked the development of democracy (rule by the people) with military innovations making foot soldiers relevant: when “states began to increase in size, and infantry forces acquired a greater degree of strength, more persons were admitted to the enjoyment of political rights.” 132

In the essential elements of the existence of a state, “The third is arms: the members of a state must bear arms in person, partly in order to maintain authority and repress disobedience, and partly in order to meet any threat of external aggression.” 133 It was hardly surprising that dictators always disarmed their subjects: “It is from oligarchy that tyranny derives its habits of distrusting the masses, and policy, consequent upon it, of depriving them of arms.” 134

“The devices adopted…for fobbing the masses off with sham rights” included that “The poor are allowed not have any arms, and the rich are fined for not having them.” 135

Theorizing the people who bear the burdens of government should be the ones who run the government, Aristotle wrote that “The government should be confined to those who carry arms.” The early American Republic generally reflected this scheme; the group of people liable for militia duty was roughly the same as the group of people eligible to vote.

In a good government, the king would have enough armed men so that he could defend the laws, but this collection of armed men should not be stronger than the people. 136

Peter of Auvergne, who was a follower of Aquinas, the Rector of the University of Paris, Bishop of Clermont, and the author of an influential commentary on Aristotle, interpreted Aristotle to mean that it would be sinful for the people not to rebel, if their cause were just and they had the strength to succeed. 137

Aristotle was the fountainhead of Scholasticism, but he remained immensely influential for many centuries afterward, and for non-Catholic thinkers. “His was the vocabulary with which seventeenth-century men studied the forms of government and conceived of politics as the pursuit of the good life.” 138 In 1825, Thomas Jefferson explained that the ideas in the Declaration of Independence derived from “the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, &c.” 139

D. Aquinas and the Summa Theologica

The child of thirteenth-century Italian aristocrats, Thomas Aquinas was nicknamed “the Dumb Sicilian Ox,” because he was stout, and slow in manner. As his teachers discovered, however, he was also brilliant. Against the wishes of his family, he joined the Dominican order, an Order which preached the Crusades. 140

His family kidnapped him, and held him prisoner for two years, before finally releasing him to lead the life he chose.

The early Scholastic works of Peter Abelard and others had been highly controversial. In the early thirteenth century, many Christians believed that faith and reason existed in completely separate realms; the other faction argued that reason must be subordinated to faith. Aquinas accepted neither theory, and instead showed how faith and reason, while separate, are complementary gifts from God. He developed proofs to demonstrate the existence of God, proofs which depended solely on logic, rather than faith. Other spiritual truths, while not provable by reason, could be better understood by the application of reason, Aquinas showed.

Augustine, who was influenced by Plato, had viewed worldly affairs as squalid and depressing. According to Augustine, a person could not be allied with the heavenly world and the earthly world at the same time. In contrast, the optimistic Aquinas agreed with Aristotle that humans are capable of building a more rational and better society. Improving life on earth was not inconsistent with devotion to the heavenly kingdom. 141

Describing God as the “most perfect of intellectual beings,” Aquinas made it intellectually respectable for theologians to study rationally the nature of God, rather than to rely solely on faith. For making reason theological respectable, Aquinas has been called the “father of the enlightenment,” the author of “the great Magna Carta of an open-minded European rationalism.” 142

Aquinas was declared a saint in 1323, and later declared to be patron saint of all universities, colleges, and schools. Known as the doctor angelicus, Aquinas has been ranked with St. Paul and St. Augustine as one of the very greatest of all Christian writers. In 1545, when the Roman Catholic Church was reeling from the Protestant Reformation, the Council of Trent was assembled. At the Council, Pope Paul III placed Aquinas’s Summa Theologica on the altar, along with the Bible. Until the early twentieth century, Catholic theological education was based on Scholasticism.

1. Aquinas on Just War

The Summa Theologica proceeded according to the classic Scholastic method of question and answer, objection and refutation. Aquinas asked “Whether it is always sinful to wage war?” 143

Aquinas pointed to Augustine’s letter on the soldier who was baptized by John the Baptist: “If the Christian Religion forbade war altogether, those who sought salutary advice in the Gospel would rather have been counseled to cast aside their arms, and to give up soldiering altogether. On the contrary, they were told: ‘Do violence to no man . . . and be content with your pay’. If he commanded them to be content with their pay, he did not forbid soldiering.” 144

Aquinas then elaborated the first of three essential conditions of just war:

I answer that, In order for a war to be just, three things are necessary. First, the authority of the sovereign by whose command the war is to be waged. For it is not the business of a private individual to declare war, because he can seek for redress of his rights from the tribunal of his superior….And as the care of the common weal is committed to those who are in authority, it is their business to watch over the common weal of the city, kingdom or province subject to them. And just as it is lawful for them to have recourse to the sword in defending that common weal against internal disturbances, when they punish evil-doers, according to the words of the Apostle (Rm. 13:4): “He beareth not the sword in vain: for he is God’s minister, an avenger to execute wrath upon him that doth evil”; so too, it is their business to have recourse to the sword of war in defending the common weal against external enemies. Hence it is said to those who are in authority (Ps. 81:4): “Rescue the poor: and deliver the needy out of the hand of the sinner”; and for this reason Augustine says (Contra Faust. xxii, 75): “The natural order conducive to peace among mortals demands that the power to declare and counsel war should be in the hands of those who hold the supreme authority.”

Aquinas’ principle that war should “Rescue the poor: and deliver the needy out of the hand of the sinner” can justify humanitarian intervention in states which are ruled by tyrants who destroy all human rights and who engage in mass murder. It can also justify civil war against a domestic tyrant.

The second requirement of Just War was that there be a just cause:

Secondly, a just cause is required, namely that those who are attacked, should be attacked because they deserve it on account of some fault. Wherefore Augustine says…: “A just war is wont to be described as one that avenges wrongs, when a nation or state has to be punished, for refusing to make amends for the wrongs inflicted by its subjects, or to restore what it has seized unjustly.” 145

Finally, the war should be fought with good intention—for the purpose of protecting the good, rather than for cruel or selfish motives:

Thirdly, it is necessary that the belligerents should have a rightful intention, so that they intend the advancement of good, or the avoidance of evil…. For it may happen that the war is declared by the legitimate authority, and for a just cause, and yet be rendered unlawful through a wicked intention. Hence Augustine says (Contra Faust. xxii, 74): “The passion for inflicting harm, the cruel thirst for vengeance, an unpacific and relentless spirit, the fever of revolt, the lust of power, and such like things, all these are rightly condemned in war.

Aquinas addressed the objections to Just War, and replied to the objections.

The first objection was that Jesus had said “All that take the sword shall perish with the sword.” (Mathew 26:52). Aquinas replied that to use the sword when in service of public authority, as in war “is not to ‘take the sword,’ but to use it as commissioned by another…”

A second objection was that Jesus had said “But I say to you not to resist evil” (Mt. 5:39), and Paul had said “Not revenging yourselves, my dearly beloved, but give place unto wrath.” (Romans 12:19). Aquinas replied, “Nevertheless it is necessary sometimes for a man to act otherwise for the common good, or for the good of those with whom he is