other way to preserve themselves or because being opprest with want they can have no sustenance orâ—… other terms For if the Campanians 〈◊〉 old being subdued by necessity subjected themselves to the Roman people in this form The people of Campania and the City Capua our Lands the Temples of our Gods all divine and humane things we yield up into your hand O ye Con'cript Fathers and fundâ—… people when they desired to subj a themselves to the dominion of the Romans were not accepted as 〈◊〉 saith what hinders but that a people after the same manner may yield up 〈◊〉 self into the hand of one propotent and over-mighty man Moreover it 〈◊〉 happen that some Father of a Family possessing a large estate of Lands may please to receive no inhabitant 〈◊〉 to his possession but upon such condtion or that some Master having 〈◊〉 great number of servants may manuâ—… and set them at liberty on conditioâ—… that they be subject to his Government and pay him tribute VVhich cases 〈◊〉 not without their examples Tacitâ—… concerning the servants of the Germans saith Every one is Master of his own house and estate The Lord impiâ—…seth and requireth of them as his farmers a rent of Corn or Cattle or cloths and the servant so far is subâ—…ect Adde that as Aristotle hath said some 〈◊〉 are by nature servants i. e. fit for servitude so also some Nations are of this disposition that they know better how to be ruled than how to rule Which the Cappadocians seem to have thought of themselves who preferred the life under a King before the Liberty offer'd them by the Romans and affirmed they could not live without a King So Philostratus in the life of Apollonius saith It is a folly to bestow Liberty upon the Thracians Mysians Getes which they would not gladly accept And moreover some might be moved by the examples of those Nations which for many ages lived happily enough under a Government plainly regal The Cities under Eumenes saith Livy would not have changed their fortune with any free City whatsoever L. 42. Sometimes also the State of the City is such that it cannot be safe unless under the free Empire of One which conceipt many prudent men had of the Roman as the case stood in the time of Caesar Augustus For these causes therefore and the like it may not only possibly but doth usually come to pass that men subject themselves to the Empire and power of another which also Cicero notes in the second of his offices XLIII The same further proved FUrther yet by a just War as we have said afore as private dominion may be acquired so also civil dominion or the right of reigning without dependence Neither do I speak this only in behalf of the Empire of One where that is receiv'd I would not be so mistaken but the same Arguments are of force for conserving the Empire of many where many nobles or states have this same right of supreme power and govern the City the Plebeians being excluded What that no Common-wealth hath ever been found so popular wherein some such as are very poor or foreigners and also Women and Youth are not kept from publick Counsels Besides some States have other people under them not less subject than if they did obey Kings Whence that question Is the Collatin people in their own power and the Campanians when they had yielded up themselves to the Romans are said to be under the power of others Many are the examples to this purpose and they are all of no value if we once grant this that the right of ruling is alwaies subject to the judgement and will of them who are ruled But on the contrary it is evident both by sacred and prophane history that there are Kings that are not inferiour to the people though taken all together If thou shalt say saith God speaking to the people of Israel I will set a King over me and to Samuel Shew unto them the right of the King that shall reign over them Hence is a King called the Anointed over the people over the inheritance of the Lord over Israel Salomon King over all Israel So David giveth thanks to God for subduing his people under him The Kings of the Nations saith Christ bear rule over them And that of Horace is well known Commands of Kings their subjects move And Kings are subject unto Jove Seneca thus describes the three forms of Government Sometimes the people are they whom we ought to fear sometimes if the Discipline of the Common-wealth be so that most things be transacted by the Senate the gracious men therein are feared sometimes single persons to whom the power of the people and over the people is given Such are they who as Plutarch saith have a command not only according to the Laws but over the Laws also and in Herodotus Otanes thus describes a single Empire to do what one pleaseth so as not to be accomptable to any other and Dio Prusaeensis defines a Kingdom to have command without controul Pausanias opposes a kingdom to such a power as must give account to a superiour Aristotle saith there are some Kings with such a right as else where the Nation itself hath over it self and that which is its own So after that the Roman Princes began to take upon them an Authority truly regal the people is said to have conferred upon them all their Authority and power and that over themselves as Theophilus interprets Hence is that saying of M. Antonius the Philosopher None but God alone can be judge of the Prince Dion of such a Prince He is free having power over himself and the Laws that he may do what him pleaseth and what likes him not leave undone Such a kingdom was of old that of the Inachidae aâ—… Argos far different from the Athenian Common-wealth where Theseus as Plutarch tells us acted only the part of a General and Guardian of the Laws in other respects not superiour to the rest Wherefore Kings subject to the people are but improperly called Kings as after Lycurgus and more after the Ephori were established the Kings of the Lacedemonians are said to have been Kings in name and title not really and indeed Which example was also followed by other States in Greece Pausanias Corinth The Argives in love of equality and liberty have long since very much abated the regal power so that they have left the Sons of Cisus and his posterity nothing beside the name of a Kingdom Such Kingdoms Aristotle saith do not make any proper kind of Government because they only are a part in an Optimacy or Populacy Moreover in Nations that are not perpetually subject unto Kings we see examples as it were of a Kingdom temporary which is not subject to the people Such was the power of the
them to execute publick revenge And I am of Plutarch's opinion that the same is lawfull if before the invasion a publick Law were extant giving power to every one to kill him that shall adventure to do this or that which falls under sight as that being a private man shall get a guard about him or shall invade the Fort that shall slay a Citizen uncondemned or not by lawfull judgment that shall create magistrats without just suffrages Many such Laws were extant in the Cities of Greece in which therefore the killing of such Tyrants was to be esteemed Lawfull Such was at Athens the Law of Solon revived after the return out of the Piraeeum against the overthrowers of the popular State and such as had born offices after the overthrow of it As also at Rome the Valerian Law if any one without the peoples will should take the authority of a Magistrate and the Consular Law after the Decemvirate that none should create a Magistrate without appeal whosoever had done so it should be lawfull to kill him Moreover it will be lawfull to kill the Invader by the express authority of the rightfull Governour whether King Senate or People As also of the Protectors of Children that are Kings such as Joâ—…ada was to Joas when he dethroned Athalia Unless in these cases I cannot yield it lawfull for a private person by force to evpell or kill an Invader of the highest power The reason is because it may be the rightfull Governour had rather the Invader should be left in possession than occasion given to dangerous and bloody Commotions that do usually follow upon the violating or slaying of those men who have a strong faction among the people or forein confederates also Surely it is uncertain whether a King or people be willing the State should be so endangered and without knowâ—…ege of their wâ—…l the force cannot be just Favonius said Civil war is worse than unlan full and usurped Goverment And Cicero To me any peace with our Countrey-men seemeth more profitable than Civil war Better it had been said Titus Quintius the Tyrant Nabis had been let alone at Lacedemon when he could not otherwise be thrown down but with the grievous ruine of the Commonwealth likely to perish in the vindication of her liberty To the same purpose is that of Aristâ—…hanes A Lyon is not to be bred in a City but if he be brought up he must be kept Verily seeing it is a most weighty deliberation whether peace or liberty be to be preferd as Tacitus speaks and in Cicero's opinion it is a politick question of greatest difficulty Whether when our Country is oppressed by an Usurper all endeavour is to be used against him although the Common-wealth be thereby extremely endangered Single persons ought not to arrogate unto themselves that judgment which belongs to the people in common Nor can that saying be approv'd Wee pull the proud Usurpers down That Lord it o'r the willing Town So did Sylla answer being asked why he troubled his Country with taking arms That I may free it from tyrants Better is the advice of Plato in an Epistle of his to Perdicca In the Common-wealth contend so far as thou canst approve thy doings to thy Citizens it is not fit to offer violence neither to thy parent nor to thy country The sense whereof is extant in Salust too For to over-rule thy country or thy parents although thou art able and canst reform what is amiss yet is it uncivill especially seeing all changes in affairs of state portend slaughter flight and other hostilities Thomas saith The destruction though of a tyrannical Government is sometimes seditious The fact of Ehud upon Eglon King of Moab ought not to bring us over to the contrary side for the sacred Scripture plainly witnesseth He was raised by God himself and sent as an Avenger to wit by special command And besides it is not manifest that this King of Moab had not some right of Government conditionall Against other Kings also God executed his judgments by what hand he pleased as by Jehu upon Joram Lastly it is to be noted in a controverted case a private man by no means ought to take upon himself to judge but follow the possession So did Christ command tribute to be paid to Caesar because the Money bare his Image that is because he was in possession of the Empire LXXV Who may lawfully wage war AS in other things so in voluntary actions there are wont to be three kinds of efficient causes principal adjuvant and instrumental In war the principal is he whose work is done in private a private person in publick the publick power especially the highest Whether for those that stirr not themselves war may be raised by another we shall see elsewhere Mean while this we take for certain naturally every one may vindicate his own right Therefore were our hands given us But to profit another in what we can is not only lawfull but commendable The writers of Offices truly say Nothing is more serviceable to man than another man Now there are divers bonds between men which engage them to mutual aide For kinsmen assemble to bring help and neighbors are calld upon and fellow-citizens Aristotle said It behoveth every one either to take arms for himself if he hath received injury or for his kindred or for his benefactors or to help his fellows if they be wronged And Solon taught that the Commonwealths would be happy wherein every one would think anothers injuries to be his But suppose other obligations be wanting the communion of humane nature is sufficient No man is unconcerned in that which is humane It is a saying of Democritus Our duty is to defend the opprest with injury and not neglect them for that is just and good Which is thus explained by Lactantius God who hath not given wisedom to other living creatures hath secured them by natural muniments from assault and peril But to man because he formed him naked and frail that he might rather furnish him with wisedom he hath given beside other things this pious affection whereby one is inclined to defend love cherish another and afford mutual aid against all dangers When we speak of Instruments we do not here understand arms and such like things but those persons who act so by their own will that their will depends upon another will Such an instrument is the son to the father being naturally a part of him such also is a servant as it were a part legally Democritus Use servants as parts of the body some for one thing some for another Now as a servant is in the family so is a subject in the Commonwealth and therefore an instrument of the Ruler And no doubt all subjects naturally may be used for war but some are exempted by special Law as of
conduces both to our present matter and to many other things lest we strein the Authority of the Hebrew Law beyond its reach XIV That War is not against the Gospel-Law The first Argument OMitting Arguments of less value in our judgement our first and principal proof that the Right of VVar is not wholy taken away by the Law of Christ shall be that of Paul to Timothy I exhort therefore that first of all supplications prayers intercessions and giving of thanks be made for all men For Kings and for all that are in authority that we may lead a quiet and a peaceable life in all godliness and honesty For this is good and acceptable in the sight of God our Saviour who will have all men to be saved and to come unto the knowledge of the truth Here we are taught three things That it is pleasing to God Kings should become Christistians That being made Christians they should remain Kings Wee pray saith Justin Martyr that Kings and Princes together with their regal power may also attain unto a right understanding and in the Book entitled Clement's Constitutions the Church prays for Christian Magistrates Lastly that this is also pleasing to God that Christian Kings should procure for other Christians a quiet life How so The Apostle sheweth in another place He is the Minister of God to thee for good but if thou do that which is evill be afraid for he beareth not the sword in vain for he is the Minister of God a revenger to execute wrath upon him that doth evill By the right of the sword is understood all coercive power as in the Lawyers sometimes yet so that the highest part of it which is the true use of the sword is not excluded For the illustration of this place much light may be had from the second Psalm which although it were verified of David yet more fully and perfectly pertains to Christ as we learn out of the Acts and the Epistle to the Hebrews Now this Psalm exhorts all Kings to receive the Son of God with reverence i. e. to do service to him as they are Kings as Augustin explains it well whose words are to this effect Herein do Kings as they are commanded serve God as Kings if in their Kingdom they command good things forbid evill things not only pertaining to humane society but also to divine Religion And elsewhere How then shall Kings serve the Lord in fear but by prohibiting with religious severity and punishing offences against the commands of the Lord For he serveth one way as a man another way as a King Again Herein therefore doe Kings serve the Lord as Kings when they do him that service which none can do but Kings XV. The second Argument A Second Argument is deliver'd us by St. Paul in the place cited already in some part out of the Epistle to the Romans where the highest power such as the regall is is said to be of God and is called the ordinance of God whence it is inferr'd that obedience and honour is to be given to it and that from the heart and he that resisteth it resisteth God If by Ordinance a thing were to be understood which God only will not hinder as in vicious acts then would there follow thence no obligation either of honour or obedience especially laid upon the conscience nor would the Apostle say any thing where he so much extols and commends this power which might not agree to robbing and stealing It follows therefore that this power be conceiv'd to be ordained by the will of God approoving it whence it further follows that seeing God wills not contraries this power is not repugnant to the will of God revealed by the Gospel and obâ—…iging all men Nor is this Argument avovded because the persons that were in power when Paul wrote are said to have been enemies to Christian piety For first that is not true of all Sergius Paulus Propraetor of Cyprus had given his name to Christ before this time to say nothing of the King of Edessa of whom there is an old tradition grounded as it seems on truth though perhaps a little mixed with fables Moreover the question is not of the persons whether they were impious but whether that function in them were impious we say the Apostle denys that when he saith the function even for that time was ordained of God and therefore to be honoured even within the recesses and secrets of the heart where God alone hath Empire Wherefore both Nero might and that King Agrippa too whom Paul so seriously invites to his Religion might subject himself to Christ and retain the one his regal the other his imperial power a power which without the right of the Sword and of Arms cannot be understood As then of old the Sacrifices according to the Law were pious although administred by impious Priests so Empire is a pious thing although it be in the hand of an impious Prince XVI The third Argument THe third Argument is from the words of John the Baptist who being seriously asked by the Jewish Souldiers many thousands of that Nation served the Romans in their Wars as Josephus and other writers cleerly tell us what they should do to avoid the wrath of God He answered not that they should forsake VVar as he must have answered if that be the will of God but abstain from violence and falshood and be content with their wages To these words of the Baptist containing an approbation of VVar plain enough many answer The Baptists prescripts are so different from the precepts of Christ that we may conceive their Doctrine not to be the same Which I cannot admit for these reasons John and Christ use the same beginning and declare the sum of their doctrine in the same words Amend your lives for the kingdom of Heaven is at hand Christ himself saith the Kingdom of Heaven i. e. the new Law for the Hebrews use to stile the Law by the name of Kingdom began to be invaded from the days of the Baptist. John is said to have preached the Baptism of repentance for the remission oâ—… sins just as the Apostles are said to have done in the name of Christ. Joâ—… requires fruits meet for repentance and threatens destruction to them that bring not forth such fruit He requires works of Love above the Law The Law is saiâ—… to have continued unto John as if 〈◊〉 more perfect doctrine had from him begun And the beginning of the Gospell is deduc'd from John John himself is therefore greater than the Prophets being seâ—… to give saving knowledge to the people and to Preach the Gospell Nor doth 〈◊〉 any where distinguish Jesus from himseâ—… by the difference of precepts only thâ—… things delivered by John more geneâ—…ly and confusedly and in the mannâ—… of rudiments are more plainly and fully declared by Christ the true light but
subject to the people The same may be said concerning other writers of the Politicks who conceive it more agreeable to their design to behold rather the external appearance and daily administration of affairs than to weigh the right itself of the highest power LIV. True examples of the supreme power divided MOre pertinent is that which Aristotle hath written Between 〈◊〉 full Kingdom and a Laconical which is a meer principality some other species are interjected An example hereof as I suppose may be found in the Hebrew Kings for of these that they ruled in most things by the highest right I think it is impiety to doubt for the people desired such a King as their neighbours had but the Nations of the East were subject to their Kings in the most humble way And above we have noted that the whole Hebrew people was under the King And Samuel describing the right of Kings sufficiently shews that the people have no power left in themselves against the Kings injuries Which the Fathers do rightly gather from that of the Psalm Against thee only have I sinned Upon which place Hierom Because he was a King and feared not another And Ambrose Being a King he was in danger of no Laws because Kings are free from such bonds neither do any Laws bind them over to punishment being secured by their Soveraign power against man therefore he sinned not to whose restraint he was not obnoxious I see there is consent among the Hebrews that stripes were inflicted on the King offending against those written Laws exstant about the Kings office but those stripes among them had no insamy and they were of his own accord received by the King in token of repentance and therefore he was not beaten by an Officer but by one whom he was pleased to make choice of and at his own pleasure he was eased As to coactive punishments the Kings were so free from them that even the Law of excalceation as having in it something ignominious was not of force upon them The Hebrew Barnachmon hath a sentence exstant amongst the sayings of the Rabbins in the title of Judges No creature judgeth the King but the blessed God These things being so neverthelels I think some causes were exempted from the Kings judgement and remained in the power of the Synedry of LXX instituted by Moses at Gods command and by perpetual succession continued to the times of Herod Therefore both Moses and David call Judges Gods and judgements are called the judgements of God and Judges are said to judge not in the place of man but of God 〈◊〉 the matters of God are plainly distinguisht from the matters of the King where by the matters of God the mosâ—… learned of the Hebrews bid us understand judgements to be exercised according 〈◊〉 Gods Law The King of the Jews 〈◊〉 deny not exercised by himself certain capital judgements in which particulae Matmonides prefers him before the King of Israel which also is evinced by examples not a few both in the sacred Scripture and in the writings of the Hebrews Yet certain kinds of causes seem noâ—… permitted to the Kings cognizance viz. of the Tribe of the high Priest of the Prophet And hereof there is an argument in the history of the Prophet Jeremy whom when the Princes required unto death the King answered Behold he is in your power for the King can do nothing against you to wit in this kind of matters Yea and the person that for any other cause was impeached before the Synedry could not by the King be exempted from their judgement Therefore Hircanus when by power he could not hinder their judgement concerning Horod eluded the same by Art In Macedonia they that descended from Calanus as Calisthones in Arrian saith bare rule over that people not by force but by Law The Macedonians saith Curtius are accustomed to the Regal government yet are in a greater shadow of liberty than other nations For even the judgment of life and death was not in the Kings hand Of Capital matters saith the same Curtius by the old custome of the Macedonians the Army did enquire in time of Peace the Commons the power of the Kings prevailed no further than their authority could move There is in another place of the same Author another token of this mixture The Macedonians decreed according to the custome of their nation that the King should not hunt on foot without the attendance of his elect Princes or courtiers Tacitus relates of the Gothones They are now in greater vassalage under their Kings than other Germans nor are they yet depriv'd of all liberty For he had afore describ'd the principality by the authority of perswading not by the power of Commanding and after he expresseth a full Royalty in these words One commandeth without all exceptions not by a precarious right of governing Eustathius upon the sixt of the Odysses where the Commonwealth of the Phaeaces is described saith it had a mixture of Power of the King and of the States Something like it I observe in the times of the Roman Kings for then all matters almost went through the Royal hand Romulus reigned over us as he pleased saith Tacitus It is manifest at the beginning of the City Kings had all power saith Pomponius yet Halicarnassensis will have something excepted by the people even at that time But if we give more credit to the Roman Authors in some causes there lay an appeal from the Kings to the people as Senocâ—… hath noted out of Cicero's books de Republica out of the Pontifical books also and Fenestella shortly after Servius Tullus advanced to the Throne not so much by right as by the favourable breath of the people yet more abated the regal power For as Tacitus speaketh he establisht Laws which even the Kings themselves were to obey The less cause have we to wonder at that which Livy saith The power of the first Consuls differd from the regal in little more than that 't was annual Such a mixture also of a Democracy and Optimacy was at Rome in the time of the Interregnnm and in the first times of the Consuls For in certain affairs and those of the greatest moment the will of the people was a law if the Fathers would go before them with their authority and as it were prepare the bill which authority afterward the peoples power encreased was onely for a shew when the Fathers as Livy and Dionysius note began with their voices but the Assembly did what they pleased For all this in after times there remained somewhat of a mixture whilst as the same Livy speaketh the Government was in the hand if the Patricians that is of the Senate but the Tribunes that is the Plebeians had a share to wit a right of forbidding or interceding And so Isocrates will have the Athenian Commonwealth in Solon's time to have been an
Optimacy mixt with a Democracy LV. Whether He can have supreme power that is comprehended in an unequal league UPon these premises let us examin some questions which are of frequent use in the argument we have in hand The first is whether He may have supreme power who is comprehended in an unequal league By an unequal League I understand here not that which is made between parties unequal in their forces as the Theban City in the time of Pelopidas had a league with the King of Persians and the Romans of old with the Massilians and afterward with King Massanissa nor that which hath a transient act as when an enemy is receiv'd to friendship on condition he pay the cost of the war or perform somewhat else but that which in the very nature of the agreement gives a certain permanent prelation to one side that is when the one is bound to conserve the Empire and Majesty of the other as it was in the league of the Etolians with the Romans that is both to endeavour that the others Empire may be in safety and that his dignity which is signified by the name of Majesty may be inviolat Unto which kinde are to be referr certain Rights of them which are now calld Rights of Protection Advocacy Mundiburg also the Right of mother-cities amongst the Grecians over their Colonies For the Colonies wereas free saith Thucydides as the mother-Cities but they ought to exhibit reverence to their Metropolu and certain signes of honour Livy saith of the old league between the Romans who had received all the right of Alba and the Latins of the Alban race In that league the Roman state was superiour Rightly speaks Andronicus Rhodius after Aristotle It is the property of friendship 'twixt unequals that the stronger have more honour and the weaker have more help We know what Proculus answerd to this question to wit that the people is free which is sub ect to the power of no other though it be contained in the league that that people should fairly conserve the Majesty of the other people If then a people bound in such a league remain free if they be not subject to anothers power it followes that they retain the highest power And the same is to be said of a King For there is the same reason of a free people and of a King who is truly so Proculus addes such a clause is in the league to signify the one people is superiour not that the other is not free Superiour here is meant not in power for before he had said the one people is subject to the others power but in authority and dignity which the following words do express by a fit similitude As we understand our Clients to be free though they be not equal to us neither in authority nor in dignity nor in every right So also are they to be conceived free whose duty it is to have a fair respect to the conservation of our Majesty Clients are under the trust of their patrons so are a people inferiour in the league under the trust of that people which in dignity is superiour They are under patronage not under rule as Sylla speaks in Appian Livy saith in parte non in ditione and Cicero describing those more honest times of the Romans tells us they had patrocinium sociorum non imperium With whom agrees well that saying of Scipio Africanus the elder The people of Rome had rather oblige men by favour than fear and unite forein Nations to them by a faithfull association than subdue them to a grievous servitude and that which Strabo relates of the Lacedemonians after the Romans came into Greece They remained free conferring nothing beside a friendly aide As private patronage taketh not away personal liberty so publique patronage taketh not away Civil liberty which without supremacy of power cannot be understood Therefore we see these are opposed in Livy To be under protection and To be under command And Augustus in Josephus threatens the Arabian King Syllaeus unless he would cease from doing his neighbours wrong He would take order that of a friend he should be made a subject of which quality were the Kings of Armenia who as Pâ—…tus wrote to Vologeses were within the Roman dominion and therefore were Kings rather in the sound of the name than really such as were the Cyprian and other Kings of old under the Kings of Persia Subjects as Diodorus saith LVI An Objection Answered PRoculus addeth somewhat which seemeth opposite to that we have said There are accused before us some of the confederat Cities after sentence of condemnation we inflict upon them punishment But for the understanding hereof we must know that four kindes of Controversies may happen First if the subjects of a people or King that is under the protection of another be said to have done against the league Secondly if the people or the King himself be accused Thirdly if the Fellowes which are under protection of the same people or King contend with one another Fourthly if the subjects complain of the injuries of their own Rulers In the first kinde if a fault appear the King or people is bound either to punish the offendor or to give him up to the party injured which holds not only 'twixt unequals but between those that are equally confederat yea and among them that are not at all confederate as we shall shew elswhere He is also bound to endeavour that dammages may be repaired which at Rome was the Office of the Recuperators But one of the Associats in the league hath no direct right to apprehend or punish the subjects of his confederate Wherefore Decius Magius a Campanian being put in bands by Annibal and carried to Cyrene and thence to Alexandria shewed that he was bound by Annibal against the league and so was freed In the second way the confederate hath a right to compell his Confederate to stand to the Articles of the league and if he will not to punish him But this also is not peculiar to the unequall league it hath place too in that which is equall For that one may take revenge of him that hath offended 't is sufficient that he be not subject to the offender of which elswhere wherefore the same thing comes to pass between Kings or people not confederate In the third kinde as in an equal league controversies are wont to be brought before an Assembly of the Confederates to wit such as are not concerned in the question as we read the Grecians the ancient Latins and the Germans of old have done or else before Arbitrators or before the Prince of the Association as a common Arbitrarot So in a league unequal it is agreed for the most part that the controversies be debated before him who is superiour in the league This therefore doth not prove any power of command for Kings also do usually try
to him that sent him and the Embassador left to his Master's judgment There are some too that say the Kings or Nations unconcerned are to be consulted with which indeed may be a point of prudence cannot be of right The reasons which every one brings for his opinion conclude nothing definitely because this right not like natural right certainly ariseth out of certain reason but is determined by the will of Nations Now it was in the power of Nations either absolutely to provide for the safety of Embassadors or with certain exceptions for on this side may be alleged the utility of punishing great offenders and on the other side the utility of Embassages the facility whereof is best promoted by securing them as much as may be We must therefore see how far Nations have consented which cannot be evinced by examples only for many are extant on both sides Wherefore we must have recourse both unto the judgments of wise men and unto conjectures Two judgments I have most illustrious one of Livy another of Sallust Livy if the Embassadors of Tarquin who had raised treason at Rome saith Although they seemed to have committed that for which they ought to be in the place of enemies yet the right of Nations prevailed We see here the right of nations extended even to them that do hostility The saying of Sallust pertains to the Embassadors train of whom we shall speak anon not to the Embassadors themselves but the Argument will proceed rightly à majori ad minus that is from a thing less credible to that which is more He saith Bomilcar the Companion of him who came to Rome on the publick faith is made guilty rather according to rules of equity than by the Law of Nations Equity that is the meer Law of Nature suffers punishment to be exacted where is found a delinquent but the Law of Nations excepteth Embassadors and such like who come upon publick faith Wherefore that Embassadors be made guilty is against the Law of Nations whereby many things are wont to be prohibited which by the Law of Nature are permitted Conjecture also goes on this side for it is more true that privileges should be so understood that they may give somewhat beyond Common right Now if Embassadors be only secur'd from unjust violence therein were no great matter nothing of preeminence Add that the security of Embassadors outweighs the utility arising from punishment For punishment may be taken by him that sent the Embassador being willing and if he be unwilling it may by man be exacted of him as an approver of the crime Some object better one be punisht than many involv'd in war But if he that sent the Embassador approve his deed the Embassadors punishment will not free us from the war Now on the other side the safety of Embassadors is in a slippry place if they ought to render a reason of their actions to any other but him by whom they are sent For when the Counsells of them that send and receive Embassadors are for the most part divers often contrary it can scarce happen but always somewhat may be said against an Embassador that may bear a shew of a crime And though some are so manifest that they have no doubt yet is a general danger sufficient for the equity and utility of a general Law Wherefore my opinion clearly is that it pleas'd the Nations that the Common custom which subjecteth every one being in a strange land to the Law of that land should admit an exception in Embassadors 1. That as they are accounted by a certain fiction for the persons of their Masters He brought with him a face of the Senate the authority of the Commonwealth saith Tully of an Embassador so also by the like fiction they should be set as it were without the compass of the land whereupon they are not bound by the Civil Law of that people amongst whom they live Wherefore if the offense be such one as may seem possible to be contemned it is either to be dissembled or else the Embassador is to be commanded to depart the Country Which Polybius saith was done to him who had given cause to the Hostages at Rome to escape away And hence on the by we may learn the reason why at another time the Embassador of the Tarentines for the same offense was beaten with rods namely because the Tarentines being conquerd begun to be under the Romans If the crime be cruel and publickly mischievous the Embassador must be sent to his Master with a request that he would punish him or give him up as we read the Galls required the Fabii should be deliverd to them But that which we have said afore that all human Laws are so temperd that they bind not in extreme necessity hath place also here about the Precept of the sanctimony of Embassadors Indeed that hight of necessity is not in the taking of punishment which also in other cases is taken away by the Law of Nations as we shall shew hereafter much less in the place time and manner of taking punishment but in the precaution of a great mischief especially publick Wherefore that an imminent danger may be withstood if there be no other remedy Embassadors may be both apprehended and examined So the Roman Consuls apprehended the Embassadors of Tarquin especiall care being had of their letters as Livy speaks that they might not be lost But if an Embassador use force of Arms he may be slain no doubt not by way of punishment but by way of Naturall defense So might the Galls kill the Fabii whom Livy stiles violaters of human Law Therefore in Euripides Demophon when the Herald sent by Euristheus endeavour'd to cary away the suppliants by force apposeth him by force and when he said Dare you strike me a Herald sent Answers Yes if you be violent His name was Copreus and because he proceeded violently and used force he was slain by the Athenians as Philostrastratus relates in the life of Herod By a distinction not unlike to this Cicero resolves that question Whether the son ought to accuse the father being a traytor to his Countrey For he will have it to be his duty to avert an imminent danger but not for punishment of the fact when the danger is past LXVIII The Law in favour of Embassadors binds not him to whom he is not sent THat Law which I have mentiond of not offring force to Embassadors is to be conceiv'd obligatory to him unto whom the Embassy is sent and so too if he hath admitted it there being after that time as it were a tacit Covenant between them Nevertheless it may and is wont to be denounced that Embassadors be not sent if they be they shall be taken for enemies as it was denounced to the Etolians by the Romans and of old by the Romans to the Veientes it was proclamed unless they would get them
and all things are uncertain If there be no Community that can be conserved without Law which Aristotle proved by a memorable example of Thieves certainly that which binds Mankind and many Nations together hath need of Law as he perceiv'd who said Unhonest things are not to be done no not for ones Countrey Greatly doth Aristotle accuse them who when they would have no man govern among themselves but he that hath right have no regard of right or wrong toward Foreiners That same Pompey whom we named afore on the other part corrected this Speech of a Spartan King That Common-wealth is most happy whose bounds are terminated by the Spear and Sword saying That 's truly blessed which hath Justice for its bounds to which purpose he might have used the authority of another Spartan King who preferred Justice before Military Valour upon this ground because Valour must be govern'd by Justice but if all men were just there would be need of Valour Valour it self is defined by the Stoicks to be a virtue fighting for equity Themistius elegantly shews that Kings such as the rule of Wisdome requires have not a tender eye onely to one Nation committed to their trust but to all mankind being as he speaks not or Lovers of Romans but Lovers of Men Minos his name was hated among Posterity because he restrained equity to the bounds of his Empire But so far is it from Truth which some imagine that all Laws cease in War War ought neither to be undertaken but for the obtaining of right nor to be waged being undertaken but within the limits of Justice and Faith Well said Demosthenes War is against them who cannot be ruled by Judgements for Judgements prevail upon them who feel themselves weaker but against them who make or think themselves equal Arms are taken up which truly that they may be right are to be exercised with no less religion than Judgements are wont to be exercised Let the Laws then be silent among Arms that is those Civil Judiciary Laws which are proper to peace not those other Laws that are perpetual and accommodate to all times For it was excellently said by Dion Prusaeensis Written Laws indeed that is the Civil prevail not among Enemies but the not-written Laws prevail that is those that are dictated by Nature and established by the Consent of Nations This appears by that old Formula of the Romans I judge those things are to be requir'd by a pure and pious War The same antient Romans as Varro noted undertook Wars slowly not licentiously because they thought none but a pious War was to be waged Camillus said Wars are to be waged justly as well as valiantly Africanus That the People of Rome did both undertake Wars and finish them with Justice In another you may read There are Laws of War also as of Peace Another admires Fabricius a brave man and which is a rare thing innocent in War and one that believ'd an Enemy might be wrong'd What power the Conscience of Justice hath in Wars Historians frequently demonstrate often ascribing Victory to this cause especially Thence those common Sentences The Hearts of Souldiers rise or fall at consideration of the Cause He seldome returns in safety that fights unjustly Hope waits upon a good Cause and the like Nor ought any to be moved at the prosperous Successes of just Attempts For 't is sufficient that the Equity of the Cause hath a certain peculiar and that a great influence upon the Action though that influence as it happens in humane affairs is oft hindred in its efficacy by the intervention and opposition of other causes Also for the procuring of Friends which as particular persons so States have need of to many purposes much avails an Opinion and Fame of War not unwisely nor unjustly undertaken and piously managed For no man is desirous to joyn himself to such whom he supposeth to hold justice piety and faith in vile esteem When upon the grounds and reasons aforesaid I saw most clearly that there is among Nations a Common Law which availeth both to Wars and in Wars I had many and weighty causes to write thereof I saw through the Christian world such licence of going to War as even barbarous Nations may be ashamed of that men take Arms greedily for light causes or none at all which being once put on all reverence of divine and humane Right is put off even as if the Furies had commission given them to work all kind of mischief In contemplation of which immanity many good Men have gone so far as to deny all Arms to a Christian whose Religion consisteth chiefly in Charity toward all the world in which opinion seems to be sometimes both Johannes Ferus and my Country-man Erasmus great Lovers of Peace both Ecclesiastical and Civil but with that intent as I suppose wherewith we are wont to bend what is crooked to the other side that it may return into straitness Yet indeed this endeavour of too much contradiction is often times so far from being profitable that it hurts because it is easily found that excess in some sayings takes away authority for other even when they stand within the limits of truth Wherefore both Parties had need of a Moderator that it might appear Neither nothing nor every thing is lawfull And withall my Design was by my private study and diligence to advance the profession of the Laws which heretofore in publick Offices I had exercised with as much integrity as I could This comfort of my studies was left me after I was unworthily cast out of myown Countrey honour'd by so many Labours of mine Many before me have purposed to bring this into a form of Art but no man hath done it perfectly Nor is it possible unless which hitherto hath not been done with care enough the things which are by Constitution be rightly separated from Natural For Naturals because they are alwaies the same may easily be collected into Art but the things that come from Constitution because they are often changed and are divers in divers places are put without Art as other precepts of singular things Nevertheless if the Priests of true Justice would undertake to handle the parts of natural and perpetual Jurisprudence laying aside what hath its original from free will One of Laws another of Tributes another of the Judges Office another of the conjecture of Wills another of proving Facts thereupon might be composed a Body of all parts collected What course we thought fit to take we have shewed in deed rather than words this work containing that part of Juris-prudence which is by far most noble For in the first Book having first spoken of the Original of Right and Law we have examined that question Whether any War be just and lawfull After to know the difference 'twixt publick and private War we had to explain the nature of the Supreme Power what
although among the Latins principality and Kingdom are wont to be opposed as when Caesar saith the Father of Vercingetorix held the principality of Gallia but was slain for affecting the Kingdom and when Pisi in Tacitus calls Germanicus the Son of a Prince of Romans not of a King of Parthians and when Suetonius saith Caligula wanted but a little of turning the principality into a Kingdom and when Maroboduus is said by Velleius to have embraced in his mind not a principality consisting in the will of those that obey but a regal power Nevertheless we see these names are often times confounded for both the Lacedaemonian Leaders of Hercules posterity after they were subject to the Ephori were yet stiled Kings as we have said afore and the antient Germans had Kings which as Tacitus speaketh were Soveraign by the authority of perswading not by the power of commanding And Livy saith of King Evander that he ruled by authority rather than command and Aristotle and Polybius call Suffetes King of the Carthaginians and Diodorus too as also Hanno is called King of the Carthaginians by Solinus And of Scepsis in Troas Strabo relates when having joyned to them the Milesians into one Common-wealth they began to use a popular Government the posterity of the old Kings retained the royal name somewhat of the honour On the contrary the Roman Emperors after that openly and without any dissimulation they held a most free regality yet were stiled Princes Moreover Princes in some free Cities have the Ensigns and marks of royal Majesty given unto them Now the Assembly of the States that is of them that represent the people distributed into classes in some places indeed serve only to this purpose that they may be a greater Council of the King whereby the complaints of the people which are oft concealed in the Privie Council may come unto the Kings ear in other places have a right to call in question the actions of the Prince and also to prescribe Laws whereby the Prince himself is bound Many there are who think the difference of the highest Empire or of that less than the highest is to be taken from the conveyance of Empire by way of election or succession Empires devolved this way they affirm to be highest not those that come the other way But it is most certain this is not universally true for succession is not the title of Empire which gives it form but a continuation of what was before The right begun from the election 〈◊〉 the Family is continued by succession wherefore succession carries down 〈◊〉 so much as the first election did confeâ—… Among the Lacedemonians the Kingdom passed to the Heirs even after 〈◊〉 Ephori were ordained And of such Kingdom that is a principality 〈◊〉 Aristotle some of them go by rigeâ—… of bloud some by election and in the Heroical times most Kingdoms in Greece were such as besides him Thucydidâ—… notes On the contrary the Romaâ—… Empire even after all the power botiâ—… of Senate and people was taken awaâ—… was bestowed by election XLVII The second Caution LEt this be the second caution 〈◊〉 one thing to enquire of the thing â—…nother of the manner of holding it which is appliable not only to corporal things but incorporal also For as a Field is a thing possessed so is a passage an act a way But these things some hold by a full right of propriety others by a righâ—… usufructuary other by a temporary right So the Roman Dictator by a temporary right had the Highest power and some Kings both the first that are elected and they that succeed them in a lawful order by an usufructuary right but some Kings by a full right of propriety as they that by a just War have gotten their Empire or into whose power some people to avoid a greater evill have so given up themselves that they excepted nothing Neither do I assent to them who say the Dictator had not the highest power because it was not perpetual for the nature of moral things is known by the operations wherefore such faculties as have the same effects are to be called by the same name Now the Dictator within his time exerciseth all acts by the same right as a King of the best right nor can his act be rendred void by any other As for duration that changeth not the nature of the thing though if the question be of dignity which is wont to be stiled Majesty this is greater no doubt in him to whom perpetual right is given than to whom temporary right because the manner of the Tenure is of moment in respect of dignity And I would have the same understood of these that before Kings come to age or whilst they are hindred by loss of reason or their liberty are appointed Curators of the Kingdom so that they be not subject to the people nor their power revocable before the appointed time Another judgement is to be made concerning those that have received a right revocable at any time that is a precarious right such as of old was the Kingdom of the Vandals in Africa and of the Goths in Spain when the people deposed them as oft as they were displeased for every act of such Kings may be rendred void by these that have given them a power revocably and therefore here is not the same effect nor the same right as in other cases XLVIII That some highest Empires are holden fully i. e. alienably THat which I have said that some Empires are in full right of propriety i. e. in the patrimony of the Ruler is opposed by some learned men with this Argument That free-men are 〈◊〉 in commerce But as power is either Lordly or Regal so also Liberty is either personal or civil and again either of single persons or of all together for the Stoicks too did say there is a certain servitude consisting in subjection and in the holy Scriptures the Kings subjects are call'd his servants As therefore personal liberty excludes Master-ship so civil liberty opposes regality and any other dition properly so called So Livy opposeth them saying The people of Rome are not in a kingdom but in liberty and elsewhere he distinguisheth the people enjoying liberty from those that lived under Kings Cicero said Either the Kings should not have been expell'd or liberty should have been given to the people really and not in words After these Tacitus The City of Rome from the beginning was under Kings L. Brutus brought in Liberty and the Consulship Strabo saith of Amisus it was sometime free sometime under Kings And frequently in the Roman Laws foreiners are divided into Kings and free State Here then the question is not concerning the liberty of single men but of a people And further as for private so for this publick subjection some are said to be not of their own right not
of a Family who 〈◊〉 he hath promised his Family to do somewhat which belongs unto their Government shall not thereby cease to have so far as may be in a Family supreme right therein Nor is the Husband deprived of marital power because of some promise to the Wise. I confess by this means the Empire is in some sort streightned whether the obligation ly upon the exercise of the act only or also directly upon the faculty it self In the first way the act done against promise will be unjust because as we shew elsewhere a true promise gives hima right to whom 't is made and in the other way it will be null by want of faculty Nor yet doth it thence follow that he that makes the promise hath any superiour for in this case the act is rendred null not by superiour force but in Law Amongst the Persians the King was Supreme and absolute adored as the Image of God and as Justin saith he was not changed but by death A King was he that to the Peers of Persia spake thus I have called you together that I might not seem to use only my own Counsel but remember it is your duty rather to obey than perswade Yet he took an oath at his entrance as Xenophon and Diodorus Siculus have noted and it was not lawful for him to change certain Laws made after a particular form The same is related of the Ethiopian Kings by Diodorus Siculus And by his relation the Egyptian Kings who no doubt as well as other Kings of the East had Supreme power were bound to the observation of many things but if they had done the contrary could not be accused living dead their memory was accused and being condemned they wanted solemn burial as also the bodies of the Hebrew Kings who had reigned ill were not buried in the royal Sepulchers an excellent temperament whereby both the highest power was kept sacred and yet by fear of a future judgement Kings were kept from breaking their trust That the Kings also of Epirus were wont to swear they would reign according to the Laws we learn of Plutarch in the life of Pyrrhus But suppose it be added If the King breaks his trust he shall be depâ—…sed Yet will not the power hereby cease to be the highest but the mannâ—… of holding it weakned by this condition and the Empire will be as it were temporary It is said of the King of Sabaeans that he was absolute and of a most free power but that he might be stoned if he went out of his Palace In like manner an estate of Land that is held in trust is an estate as well as if it were possessed in full dominion but it is holden for a time or at the pleasure of another And such a Commissory Law or condition may be annexed not only in the bestowing of a Kingdom but in other contracts for some Leagues too with neighbours we see are entred with the like sanction LII The fourth Observation FOurthly it must be noted Although the highest power be one and undivided by it self consisting of the parts above set down supremacy being added Yet may it sometimes happen to be divided either by parts which they call potential or by parts subjective So when the Roman Empire was one it often came to pass that one Ruler had the East another the West or that three divided the world between them And so it may be that a people choosing a King may reserve some acts to themselves and may commit others to the King with full right Yet is not that done as we have shewed already whensoever the King is bound up with certain promises but then we must conceive it to be done if either a partition be made expresly of which we have spoken afore or if a people yet free lay upon their future Kings a charge by way of an abiding precept or if a clause be added to signifie that the King may be compeld or punisht For a precept is from a superiour superiour at least in that particular which is given in precept and to compell is not alwaies the property of a superiour for also naturally every one hath a right to compel his debtor but is repugnant to the nature of an inferiour Parity therefore at least follows from coaction and so a division of the supremacy Against such a State as being double headed many allege many incommodities but as we have also said above in civil affairs there is nothing wholy without incommodities and Right is to be measured not by that which seems best to you or me but by the will of him whence right ariseth An antient example is brought by Plaâ—… in his third de legibus For when the House of Hercules had built Argâ—… Messena and Lacedemon the King were bound to keep their Governmenâ—… within the bound of prescribed Laws anâ—… whilst they did so the people were obliged to leave the Kingdom to them and their posterity and suffer none to take it from them And to this not only King and their own people have mutually 〈◊〉 venanted but Kings with other Kings and one people with another people and Kings with neighbourig States and States with neighbouring Kings have entred into Covenant and promis'd aid to 〈◊〉 other respectively LIII A further explication of the last note about division of power and mixture YEt are they much deceived who think the power of Kings divided when they will have some of their acts not accounted firm unless they be approved by the Senate or some such Assembly For the acts voided for want of such approbation must be understood to be cancelled by the Kings own command who ordained this by way of caution lest any thing fallaciously gained from him should pass under the notion of his true and deliberate will King Antiochus the third sent such a â—…escript to the Magistrates that they â—…hould not obey him in case he should command any thing against Law and Constantin published the like that Orphans and Widows be not constreined to come to the Emperours Court for Justice no not if the Emperours rescript â—…e shewed Wherefore this case is like to that of testaments which have a clause that no later testament shall be of force for this clause also makes it be presumed that the later testament proceeds not from the true will of the maker Nevertheless as this clause so that other by the Kings express command and special signification of his later will may be annulled Again I do not here use the authority of Polybius neither who refers the Roman Common-wealth to a mixt kind of Government which at that time if we respect not the doings themselves but the right of doing was meerly popular For both the authority of the Senate which he refers to an Optimacy and of the Consuls whom he will have to be like Kings was
on them Valens impiously and cruelly raged against them who according to the holy Scripture and the tradition of the Fathers professed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 who although a very great number never defended themselves by force Certainly where patience is prescribed us we see the example of Christ is oft brought in and even now we heard it alleged by the Thebaean soldiers as an example to be imitated by us the example I say of Christ whose patience extended it self even to the Death And he that so loseth his life is truly pronounced by Christ to have sav'd it LXXII In what cases force it lawfull against a Prince WE have said Resistence is not lawfull against the highest powers Now lest the Reader think they offend against this rule who indeed offend not we must adde some advertisements First then Princes that are under the people whether from the beginning they received such power or afterward it was so agreed as at Lacedaemon if they offend against the Laws and the Commonwealth may not only be repelled by force but if need require punished with death which befell Pausanias King of the Lacedemonians And sith the most antient Kingdoms through Italy were of this kinde it is no wonder if after the relation of most cruell things done by Mezentius Virgil addes Then all Etruria flam'd with ajustire And call for the Kings bloud to quench the fire Secondly if a King or any other hath abdicated his Empire or manifestly accounts it as forsaken after that time all things are lawfull against him as against private man Yet is not he to be judged to desert his estate who manageth it somewhat negligently Thirdly 't is the opinion of Barclay if the King alienate his Kingdome or subject it to another he forfeits it I stop For such an act if a Kingdom be conveyed by election or by successory law is null and therefore can have no effect of right Whence also concerning an Usufructuary to whom we have compared such a King it seemes to me the truer opinion of Lawyers that if he yield his right to an extraneous person his act is nothing And as to that that the usufruit reverts to the Lord of the propriety it is to be understood in due time But if a King really attempt even to deliver up or subject his Kingdom I doubt not he may be herein resisted For as we have distinguished afore the Empire is different from the manner of holding it which manner the people may hinder from being changed for that is not comprehended under the Empire Hither you may fitly apply that of Seneca in a case not unlike Though a son must obey his father in all things yet not in that whereby he is made to be no father Fourthly the same Barclay saith a Kingdome is lost if the King be caried with a truly hostile minde to the destruction of the whole people which I grant For the will of ruling and the will of destroying cannot consist together Wherfore he that professeth himself an enemy of all the people thereby abdicates the Kingdom but this seemeth scarce possible to happen in a King that is himself that rules over one people It may happen if he rule over more than one that in favour of one people he may will the ruine of another to make Colonies there Fiftly if a Kingdome be committed whether by felony against him whose Fee it is or by a clause put in the very grant of the Empire that if the King do so or so the subjects be loosed from all bond of obedience in this case also the King falls back into a private person Sixtly if a King hath one part of the supreme power the People or Senate the other part against the King invading that part which is not his a just force may be opposed because so far he hath no power Which I think hath place notwithstanding it be said the power of war is in the King For that 's to be understood of forein war when otherwise whosoever hath part of the supreme authority cannot but have a right to defend that part When this comes to pass the King may also by the Law of war lose his part of the Empire Seventhly if in the conveyance of the Empire it be conditioned that in a certain case resistance may be made against the King although it cannot be supposed part of the Empire is thereby reteined yet is there reteined some naturall liberty and exempted from the Regall power And he that alienateth his right may abate of that right by covenant LXXIII How far we must obey an Invader of anothers Empire WE have considered him which hath or had the right of governing It remaines that we speak of the Invader of Empire not after by long possession or by covenant he hath gotten a right but so long as there continues the cause of possessing it unjustly And truly whilst he is in possession the acts of empire which he exerciseth may have power to oblige not out of his right which is none but from this that it is most probable He that hath the right of governing whether people King or Senate had rather the Invaders commands should prevail and be of force than utter confusion be brought in the Laws and judgments taken away Cicero condemnes Sylla's Laws of cruelty to the sons of the proscribed that they could not seek for honours Nevertheless he thought they were to be observ'd affirming as Quintilian tells us the state of the City so to be contained in these Laws that it could not stand if they were dissolv'd Florus of the same Sylla's acts Lepidus went about to rescind the acts of so great a man deservedly if yet he could without great damage to the Common-wealth And a little after It was expedient for the sick and wounded Common-wealth to take some rest at any hand lest the sores should be opened and bleed tâ—… much in the cure Howbeit in things 〈◊〉 so necessary and which pertain to the establishing of the Invader in his unjuâ—… possession if without great danger obedience may be denied it must not be given LXXIV Whether it be lawfull to â—…d an Invader or expell him by force and in what Cases TO this question we frame this answer First if the Invador by unjust war and such as hath not the requisits according to the Law of Nations hath seised on the government nor hath there followed any agreement or faith given him but his possession is kept onely by force in this case the right of war seemeth to remain and therefore it is lawfull to act against him as against an enemy that may lawfully be slain by any even by a private man Against Traitors said Tertullian and publick enemies every man 's a souldier So also against desertors of the war that run from their colours all persons for the common quiet have a right indulged to
have â—…alled for not those of men but of Angels And whatsoever he did by right of his power he did it not by human but divine vertue even then when he cast the buyers and sellers out of the Temple For the scourge was not an instrument but a sign of divine anger as at other time spittle and oil a sign healing not a medicine Augustin upon that place of John Hearken yee Jews and Gentiles Circumcision and uncircumcision Herkin all ye Kingdoms of the earth I hinder not your domination in this world My Kingdomn is not of this world Do not ye fear most vainly as Herod the Great feared when he heard of the birth of Christ and slew so many Infants hoping to destroy him being more cruel in his fear than in his anger My Kingdom saith he is not of this world What would you more Come unto the Kingdom which is not of this world Come by believing and do not rage by fearing Paul among other things forbids a Bishop to be a striker To rule by a necessity imposed i. e. which proceeded from human force is the part of Kings nâ—… of Bishops said Chrysostom And 〈◊〉 where We have not power granted us to restrain men from offences by authority of our sentence i. e. such as conteins in it a powerful execution by a ruling or military hand or a deprivation of any human right whatsover Hence it sufficient appears that Bishops as such have no right to reign over men after a human way Hierom comparing a King and Bishop together saith The one rules the unwilling the other the willing But whether Kings themselves may wage war in the way of punishment against those that reject Christian Religion is above inquired CXII Of a desire to fulfill Prophecies THis also I will add not in vain buâ—… because comparing new occurrences with old I foresee much mischief except care be taken that war is not justly grounded upon a hope conceiv'd out of some exposition of Divine Prophecies For beside that Oracles not yet fulfill'd can hardly be interpreted with any certainty without a prophetical spirit the times even of things certain may be hid from us And moreover a prediction without express command of God giveth no right for by wicked men or unjust actions God doth oft-times permit the things he hath foretold to come to pass CXIII Of that which is due not by strict justice but otherwise ANd this is also to be known if one owe a thing not by proper justice but by another vertue as liberality favour mercy charity that as it cannot be required in the Court so neither can it be demanded by arms For to both of these ways it is not sufficient that the thing required ought to be done by some moral reason but moreover it is needfull there be in us a certain right unto it which right sometimes divine and human Laws do give also about the dues of other vertues and then a new kind of debt ariseth perteining unto Justice But when that is wanting war upon this cause is unjust as that of the Romans upon the King of Cyprus for his ingratitude For he that hath given a benefit hath no right to exact a recompence otherwise it were not a benefit but a contract CXIV A distinction of war unjust in respect of the cause or of some accident ONe thing more is to be noted It often falls out that a war may have a just cause and yet the action receive some stain from the minde of the doer either for that some other thing not unlawful by it self doth more the mind than the right to wit desire of honour or some profit whether private or publick which is expected from the war considerd apart from its justifick cause or else for that an affection plainly unlawfull is with him as the joy of one pleasing himself in anothers evil without respect of good So Aristides in his second De societate saith the Phocenses perished deservedly but Philip did not well when he destroyed them not being studious of religion which he pretended but ambitious to enlarge his Empire Profound ambition and avarice as Sallust speaks is one cause of war and that an old one And Tacitus saith Gold and Power are the principal causes of wars Whither you may also refer that of S. Augustin Desire of hurting Cruelty of revenging an unpeaceable and unplacable mind fierceness of rebelling lust of domineering and the like these are the things that in wars are justly blamed But these where a just cause is not wanting do indeed argue a crime yet do they not make the war properly unjust whereupon neither is restitution due for the same CXV Of doubtfull causes Whence Doubts do arise in moral matters IT is most true which Aristotle hath written that there is not so much certitude in moralls as in the Mathematicks because the Mathematicks separate forms from all matters and the forms most part are such that they have nothing interposed as between straight and crooked there is no medium But in moralls even the least circumstances varie the matter and the forms here are wont to have something between them with such latitude that the access is neerer sometimes to this extreme sometimes to that For so twixt that which ought to be done and that which ought not to be done is interposed that which may be done but is neerer now to this now to the other part whence ambiguity ariseth often as in the dusk air or in warm water And this is that which Aristotle saith Oftentimes it is hard to judge which is to be preferd Andronicus Rhodius saith It is to discern that which is truly just from that which seemeth so CXVI Nothing is to be done against ones own judgment though erring THis is principally to be observed that although a thing be just in it self bâ—… done by one who having weighed all thinks it unjust the act in vitious For this is that which the Apostle S. Paâ—… saith Whatsoever is not of faith is for Where faith signifies the mindes judgment about any matter For God haâ—… given unto men a judging faculty as a guide unto their actions by contempâ—… whereof the minde becomes brutish Now it often comes to pass that the Judgment shews no certainty but sticks and 〈◊〉 this hesitation cannot be cleared by attent consideration that if Cicero must be followed Their precept is good that serbid to do any thing which you doubt whether it be right or wrong The Hebrew Masters say Abstein from a doubtfull matter But this cannot have place where one must do one thing of the two and it is doubted of both whether it bâ—… right for then a man may chuse the which seemeth to him the least evil Foâ—… that always where the choice is ineâ—…table puts on the appearance of good Oâ—… evils take the least saith Aristotle and
Cicero likewise and Quintilian The lighter evil obteins the place of good when several evils are compar'd together CXVI How the Judgment in drawn either way BUt for the most part in doubtfull matters after some examination the mind sticks not in the midst but is drawn this way or that by Arguments taken from the matter it self or from the opinion a man hath of other men pronouncing sentence about it For here also is true that of Hesiod It is most excellent to be able to direct oneself next to follow the good direction of another Arguments from the matter are deduced from the causes effects and other adjuncts But to the right discerning of these there is need of some experience and skill they that have not this to conform their active judgment rightly must hear the Counsils of wise men For those things saith Aristotle are probable which seem so to all or to most or at least to wise men and to these again either all or most or the more excellent And this way of judging is most used by Kings who have not leisure themselves to enter into the depth of learning The company of wise men brings Learning and Wisedom unto Kings Aristides saith As in questions of fact that is accounted for truth which is supported by most and most sufficient witnesses so those sentences are to be followed which are grounded upon most and most worthy authorities Thus the old Romans entred into war not without consulting the College of the Feciales instituted for that end nor the Christian Emperours scarce ever without advising with the Bishops that if any thing did hinder in point of Religion they might be admonisht of it CXVIII In doubtful cases the safer way is to be taken Three ways to avoid a doubtfull war NOw it may fall out in many Controversies that on either side probable arguments may shew themselves whether intrinsecal to the matter or from authority In this case if the matter be of smal moment the choice which way soever it be seemeth to be free from fault But if it be a weighty question as concerning the life and death of a man here because of the great difference between the things to be chosen the safer way is to be preferred Therefore it is better to acquit the guilty than condemn the innocent The writer of the problems that bear the name of Aristotle saith so and addes the reason which we have already given For where one doubts he must chuse that part wherein the offense is less War is a thing of the greatest consequence from which very many evils are wont to follow even upon the innocent wherefore when judgments differ we must incline to peace And three ways there be to keep Controversies from breaking forth into war The first is Conference Being there are two kinds of discipation saith Cicero one by conference the other by force and that is proper to man this to beasts we must fly to the later if we cannot use the former Phaneas in Livy saith To avoid a necessity of war men do willingly remit many things which cannot be forced from them by arms Mardonius in Herodot us blames the Grecians in this respect Who being of one language should have determined their Controversies by Commissioners and not by battell Coriolanus in Halicarnessensis If one desire not anothers but seek his own and upon denial make war all men confess it to be just In the same Halicarnessensis King Tullus Arms must decide what words are not able to compose Vologeses in Tacitus I had rather preserve my Ancestors possessions by equity than blood by a fair tryall than by force And King Theodoricus Then only is it profitable to go to war when Justice can find no place among our Adversaries Another way to avoid war among them that have no common Judge is Compromise It is not lawful saith Thucydides to invade him as injurious who is ready to submit to an Arbitrator So concerning the Kingdom of Argos Adrastus and Amphiaraus made Eriphyles their Judge as Diodorus relates Concerning Salamis three Lacedaemonians were chosen judges between the Athenians and Megareans In the now-cited Thucydides the Corcyreans signify to the Corinthians their readiness to debate their quarels before the cities of Peloponnesus which they should agree upon And Pericles is commended by Aristides for his willingness to have differences arbitrated that war might be avoided And Philip of Macedon is praised by Isocrates for that he was ready to permit the Controversies he had with the Athenians to the arbitration of any impartial City Plutarch saith this was the principal office of the Feciales among the Romans not to suffer things to come to a war till all hope of obteining a quiet end was lost Strabo of the Druids of Gallia They were of old arbitrators between enemies and often pacified them when they were entring into battell The Priests in Iberia performed the same office as the same Author testifies Now Christian Kings and Commonwealths are most of all bound to take this course to avoid war for if to avoid the sentences of Judges that were aliens from true Religion certain Arbitrators were constituted both by Jews and Christians and that is given in precept by Paul how much more is the same to be done that war which is a far greater incommodity may be avoided So Tertullian somewhere argues that a Christian must not follow the wars to whom it is not lawful so much as to go to Law Which yet must be understood according to what we have said elswhere with some temperament And both for this and for other causes it were profitable yea in some sort necesary to be done that some Assemblies of Christian powers were held where the controversies of others might be determined by Judges that are unconcerned yea and a course taken to compell the parties to entertain peace upon equal termes which use also was made of the Druids among the Galls as Diodorâ—… and Strabo have delivered And we read the French Kings about division of the Realm permitted the judgment to their peers The third way is by Lot which is to this purpose commended by Duâ—… Chrysostom in his second Oration against Fortune and long before him by Salomen Prov. 18. 18. Somewhat neer to Lot is Single Combat the use whereof seems not altogether to be refused if two whose Controversies otherwise would involve whole multitudes in very great mischiefs be ready to sight one with the other For it seems if not rightly to be done by them nevertheless acceptable to the people on both sides as a less evil Metiâ—… in Livy speaks to Tullus after this manner Let us take some way whereby without much slaughter and blood of boâ—…h parts it may be determined which people shal be superiour Strabo saith this was the old custom of the Grecians and Aeneas in Virgil saith
hostile goods will become theirs who administer part of the war at their own charge so far as to the Enemies that the measure I have expressed be not exceeded and this is to be determin'd by an equal judgement But as to the Common-wealth the same will be just by internal justice if there be equality in the contract that is if the charges and the dangers be as great as the probability of the prey For if this hope be of much more value the overplus must be rendred to the Common-wealth just as if one had at too cheap a rate bought a Cast uncertain indeed but easy and of great hope Yet further when Justice strictly so call'd is not offended there may be a transgression from that office which consisteth in the love 〈◊〉 others especially such as the Christian Law prescribeth as if it appear that such predation will chiefly hurt not the generality of the Enemies nor the King nor those that are in themselves nocent but the innocent and that so much that it will cast them into very great calamities into which to cast even them that are privately indebted to us were unmercifulness But if moreover that depredation be not of much moment neither to end the war nor to weaken the Enemy in such a case an honest man especially a Christian ought to think it an unworthy gain which is made onely of the infelicity of the times Sometimes also it happens that by occasion of publick war private war ariseth viz. if one chance to fall among ones Enemies and come into hazard of life or goods in which case the same things are to be observ'd which we have elswhere said of the lawfull manner of self-defence There is wont also to be joyn'd with private utility publick authority viz. if one upon great damage receiv'd from the Enemy obtain a right to recompence his losses out of the Enemies goods which right is to be defined by what we have said above of Reprizals But if any Souldier or other even in a just war hath fir'd the Enemies houses wasted their fields and done other damages of the like sort without command and when their was no necessity nor just cause it is rightly deliver'd by Divines that he is bound to repair the damages Justly have I added what they omitted without cause for if there be cause he will be bound perhaps to the Common-wealth whose Laws he hath transgressed not to the Enemy whom he hath not wronged Not impertinent is that which a Carthaginian gave in answer to the Romans when they requir'd Annibal to be yielded to them Whether Saguntum was set upon by private or publick counsel is not the question but whether justly or unjustly For we have this controversy with our Citizen By what authority he did it our onely question with you is Whether it was against the League or no. LVIII Admonitions touching Faith and Peace The Conclusion AS when I treated of undertaking War I annexed some Admonitions about declining War as much as is possible So will I now also before I dismiss the Reader adde a few Advisoes which are useful both in war and after war â—…onding to the care of Faith and Peace and first of Faith both for other reasons and for this especially that the hope of Peace may not be lost For by Faith not only every Commonwealth is conserved as Cicero saith but also that greater society of Nations This being taken away as Aristotle truly Commerce is taken away from among men Therefore the same Cicero saith It is a wicked thing to break ones Faith without which there is no life It is as Seneca speaks the most sacred thing that is seated in the breast of Man And this Faith is so much more religiously to be kept by the supreme Rulers of the world by how much more they are exempted from the punishment of their sins here than other men Take away Faith they will be like unto wild beasts whose violence all are afraid of And Justice truly in its other parts hath oft-times somewhat of obscurity but the bond of Faith is manifest by it self yea is therfore used that all obscurities may be cleared The more are Kings to embrace it First for Conscience sake and then for their Credit sake and Reputation upon which depends the Authority of their government Wherefore let them be assured that such as instill into them the arts of deceiving do that very thing which they teach That doctrin cannot long be profitable which maketh man insociable with man add also odious to God Next in the whole administration of War the mind cannot be kept serene and confident in God unless it always make a prospect toward Peace For it is most truly said by Sallust Wise men make war to obtâ—…in Peace Wherewith agrees that sentence of S. Augustin Peace is not sought thâ—… war may be exercis'd but War is waged that Peace may be acquir'd Aristotle himself more than once accuses the Nations that proposed to themselves actions of War as their ultimate end Force is a thing that belongs to wild beasts anâ—… this in War is most eminent the mâ—… diligent care must be us'd to temper 〈◊〉 with humanity lest by too neer imiâ—…tion of those beasts we forget that 〈◊〉 are men and lose the softness of our nature If then a safe Peace may be had it is well worth the forgiveness of injuries and losses and charges especially among Christians to whom their Master hath bequeath'd his Peace Whose best Interpreter will have us as far as is possible and as much as in us syeth live peaceably with all men It is the property of a good man as we read in Sallust to begin war with an unwilling mind and to prosecute it no farther than he needs must This one consideration may be enough but for the most part also mens Interest and profit carryes them to this end first them who are inferiour in strength because long strife with one more mighty is full of danger And as on shipboard a greater calamity is to be redeemed with some loss leaving off anger and hope deceitful counsellers as Livy rightly call'd them This sense is thus exprest by Aristotle Better it is to yield some of our goods to those that are more potent than to contend with them and lose all And as to the more potent Peace is for their Interest too because while their affairs are prosperous as the now-cited Livy saith no less truly Peace is honorable to those that give it and better and safer than the victory hoped for For the Common Chances of War must be considered So saith Aristotle We must think how many and 〈◊〉 unexpected alterations do happen in war And in Diodorus in a certain Oration for Peace they are censur'd who glory in the greatness of their actions as if it were not Fortunes custom to dispense her favours and successes by turnes