In The Tenure of Kings and Magistrates, Milton analyses the relation between law and violence from the perspective of justice and individual freedom. He surveys historically
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the foundation of governments and legal-political systems in the form of an original agreement, contract, or law. The original announcement, proclamation, or declaration of all states and governmental structures is what Derrida refers to as the performative act of founding a law as violence. For Milton, this performative force is considered as violence as well but in a different way. It is violent since it is a violation of human nature and God's law. God has created man free and no one has the right to rule the other. The very foundation of the first law, the very original law was in the form of an agreement or contract which goes against the law of nature; that is, people agree to submit themselves to some representatives who are their own equals. In this sense, in Milton's framework of thought, violence is integral to the foundation of law. Legal- political systems are full of potential destructiveness and violence; they are always on the verge of falling into tyranny,43 which is against the very nature of mankind and
God's creation:
It follows lastly, that since the King or Magistrate holds his authority of the people, both originally and naturally for their good in the first place, and not his own, then may the people as oft as they shall judge it for the best, either choose him or reject him, retain him or depose him though no tyrant, merely by the liberty and right of free born men, to be governed as seems to them best. This, though it cannot but stand with plain reason, shall be made good also by Scripture. (Deut. 17.14): When thou art come into the Land which
43 For a discussion on the question of violence and evil in Paradise Lost, see Robert Appelbaum's essay,
"Milton, the Gunpowder Plot, and the Mythography of Terror (Garry Wills)," in which he argues that "Paradise Lost preserves the ideas that violence and terror are systematic" (490).
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the Lord thy God giveth thee, and shalt say I will set a King over mee, like as all the Nations about mee. These words confirm us that the right of choosing, yea of changing their own government is by the grant of God himself in the People. (1031-32)
In The Tenure, Milton focuses from the outset of his argument on the foundation of kings and states, and the way they have been given power and supremacy over "their brethren." Accordingly, in order to "prove, that turning to tyranny they [kings or magistrates] may be as lawfully deposed and punished, as they were at first elected" (1028).44 Milton examines the question of law and the state, their foundation, and their
legitimacy. In Milton's argument, the primary structures of law and the state are first established by "agreement" among equals, made necessary by the consequences of the Fall:
Till from the root of Adams transgression, falling among themselves to do wrong and violence, and foreseeing that such courses must needs tend to the destruction of them all, they agreed by common league to bind each other from mutual injury, and jointly to defend themselves against any that gave disturbance or opposition to such agreement. Hence came cities, towns and commonwealths. (1028)
44 See Matthew Neufeld's essay, "Doing without Precedent: Applied Typology and the Execution of
Charles I in Milton's 'Tenure of Kings and Magistrates' (John Milton)." In this essay, he examines "Milton's use of biblical, classical, and national historical types of the regicide to exhort his readers to view the king as a tyrant, his death as a biblically and historically warranted punishment."
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However, because "no faith in all was found sufficiently binding," they came to the conclusion that they needed "to ordain some authority, that might restrain by force and punishment what was violated against peace and common right" (1028, emphasis added). For Milton, this is the only reason why free persons have accepted some authority and jurisdiction over themselves. Throughout his essay, he enforces the idea that authorities/states/kings in their relations to their subjects have no special privilege over them because they are granted authority by their people. The people must constantly remain vigilant concerning the possibility of violence (tyranny) implicit and inherent in the law that has established the authority of the state. He argues that kings or magistrates have never been able to demonstrate that their authority originated from God:45
And it were worth the knowing, since Kings in these days, and that by Scripture, boast the justness of their title, by holding it immediately of God, yet cannot show the time when God ever set on the throne them or their forefathers, but only when the people chose them, why by the same reason, since God ascribes as oft to himself the casting down of Princes from the throne, it should not be thought as lawful, and as much from God, when none are seen to do it but the people, and that for just causes. For if it needs
45 For a detailed discussion on Milton's rejection of the idea of king as divinely appointed and the
relationship between father, king, and God, see John G. Peters' essay, "Father, King, and God: John Milton's Prose Response to Monarchy."
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must be a sin in them to depose, it may as likely be a sin to have elected. (1033-34)
In order to prevent the dangers of the arbitrary use of power, the people invented laws "either framed, or consented to by all that should confine and limit the authority of whom they chose to govern them" (1029). Inventing the law, humans hoped to replace the rule of man with the rule of law and reason and consequently avoid the potential for errors, dangers, and violence in governments. Milton argues that kings and magistrates are positioned above the people but law is above them all. Taking oaths is the last solution to prevent the practice of tyranny and violence with the exercise of justice. The oath is the king's constant promise to their people as long as they hold authority and power.
When this would not serve, but that the Law was either not executed, or misapplied, they were constrained from that time, the only remedy left them, to put conditions and take Oaths from all Kings and Magistrates at their first installment to do impartial justice by Law: who upon those terms and no other, received allegiance from the people, that is to say, bond or covenant to obey them in execution of those Laws which they the people had themselves made, or assented to. And this ofttimes with express warning, that if the king or magistrate proved unfaithful to his trust, the people would be disengaged. (1029)
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Threat, uncertainty, and potential violence within the state (any established law or ruling structure) prove to be inescapable parts of all states and laws. For Milton, no states or established governments are exempt from this internal threat or violence. Arbitrary power is pregnant of evil and violence. Laws, taking oaths, parliament and counsellors are the measures taken to prevent kings and states from monopolizing violence. Milton emphasizes that the constant principle of public supervision of the exercise of authority contains the inherent possibility of the people‘s violence against the violence of the state, if necessary. The practice of this principle begins in the critique of the state and the law, which can express itself as an interpretative, performative act of violence.
Time of Crisis: "no man is further bound to Law"
Milton demonstrates in The Tenure that states and governments throughout history have tried unsuccessfully to establish an absolute law and state on earth, and he insists that there is no absolute, ahistorical origin for Charles' kingdom or any other government. For him, the origin of Charles' monarchy, like that of all other states, is in human law and (dis)order. He argues:
Therefore Kingdom and Magistracy, whether supreme or subordinat, is without difference, call'd a human ordinance, I Pet. 2.13. &c. which we are there taught is the will of God wee should alike submitt to, so farr as for the punishment of evil doers, and the encouragement of them that doe well. Submitt saith he, as free men. But to any civil power unaccountable,
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unquestionable, and not to be resisted, no not in wickedness, and violent actions, how can we submitt as free men? (1033)
In Milton's thought, kings and rulers "have no privilege to be exempted from the punishments of Law more than any other subject; so that if the King be a Murderer, Adulterer, or Idolater, he should suffer, not as a King, but as an offender […]" (1040). He argues that the foundation of all kingdoms and states lies in social-political bonds. If a king violates the principles of the contract, the subjects are no longer bound to law and the Kingdom. In such a problematically revolutionary moment, the law is suspended and another supreme authority and law will found itself, a moment/space of suspense in which a new law will stand against the former established law of the state. Milton asserts:
Out of doubt then when the King shall command things already constituted in Church, or State, obedience is the true essence of a subject, either to doe, if it be lawful, or if he hold the thing unlawful, to submit to that penalty which the Law imposes, so long as he intends to remain a Subject. Therefore when the people or any part of them shall rise against the King and his authority executing the Law in anything established civil or Ecclesiastical, I do not say it is rebellion, if the thing commanded though established be unlawful, and that they sought first all due means of redress (and no man is further bound to Law) but I say it is an absolute renouncing both of Supremacy and Allegiance, which in one word is an actual and total
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deposing of the King, and the setting up of another supreme authority over them. (1042)
What Milton is exploring here is identical to Derrida's "aporetic moment of suspense," a radical moment when the established law is fundamentally threatened by a new founding violence and law. Milton argues that the uprising of people against their king and the established law is not unlawful or a rebellion in such a moment.46 In such a
revolutionary moment/space, distinguishing lawful from unlawful and just from unjust becomes radically impossible. Subjects are no longer "bound to Law" and their king. To Milton, the element of radical critique is the most important element of this problematic situation which must be always practiced as a balancing and controlling force. In such a moment, the people are not further bound to the law and the whole system and law are fundamentally questioned and critiqued. If this radical moment stays, the people have the right to depose the king, suspend the established law and found (or set up, as Milton says) a new law and government. Like Derrida, Milton elaborates the revolutionary moment/space of aporia here.
The crucial reality related to the King's trial was that no one was able to anticipate how the process of the trial would end.47 Most judges tried to avoid execution, but finally the
46 See David Loewenstein's essay, "An Ambiguous Monster, Representing Rebellion in Milton Polemics
and 'Paradise Lost,'" in which he argues: "But for Milton monstrous rebellion could also be equivocal and many-headed in the sense that it readily assumed many forms and operated in language and through artifice" (296).
47 For a detailed discussion on the very condition of the trial of Charles I and the unpredictable,
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challenge to the authority of the Parliament (the High Court represented the Parliament) could not be evaded. This was a moment in which prediction or continuity (cause and effect sequences) in action or process was suspended. We experience this state of affairs in textual/critical practice, which reveals the supplement or trace in every concept, or in the singular action of doing justice, which exceeds the calculation of the rule. This is the time of crisis, the time of the aporetic moment/space of suspense. The execution of Charles I is the most immediate outcome of the trial; it was not either the predicted or desired outcome but defined the new path which England took as a result of the application of (the sword of) justice in the moment of aporia or the trial of the King. Execution in the context of a contest of authorities, powers and laws was certainly a violent act, and the trial situation could well be described as "the time that the just and unjust are unidentifiable" because the agreement by which such determinations can be made and carried out has been suspended. This moment offered the possibility of the occurrence of something other than the known or calculable; a normal, legal trajectory is broken and when it is re-founded, nothing is the same again.