sorts of Murtherers page 196 197 Laws guide to wisdom Pref. ix Laws may so far proceed against a King as to evidence the Right of the Creditor but not to compel him page 177 178 Contrary to Law things done not nulled unâ—ess so exprest by the Law it self page 147 Laws bind not in cases of extreme necessity page 567 Laws made to avoid greater mischiefs only must not be so understood as to make that sinful which is otherwise lawful page 483 Laws without a coercive power externally weak Pref. ix Laws and Arms opposed Pref. ii The six Laws given to Adam what page 8 There is the same Law where is the same reason or equity page 196 Humane Laws to be interpreted with some allowance for humane frailty page 59 The Law in prohibiting doubles the offence 380. of Moses erroneously quoted for that of Nature Pref. xviii Without Laws no community can consist Pref. ix Laws humane depend upon the will of the maker for their institution and continuation page 21 22 Laws may bind as to humane judgment that bind not the Conscience 483. nor bind longer than the coercive power lasts ibid. severe in the defence of Kings page 61 Laws commanding stronger than those that permit and those that forbid stronger than those that command page 199 The reason of a Law particularly failing shall not exempt that case from the Law but it may be dispensed with page 35 Lawful taken either for that which is just and honest or for that which is not punishable page 456 The Law of Nations how beneficial Pref. ix it is like the Soul in the Body page 451 Humane Laws depend upon the will of the Lawmaker both for their institution and continuation page 377 A League what 181. when said to be renewed 187. void if by either broken ibid. Of Leagues the Ancienter to be prefer'd ibid. that made with a Free people real ibid. that with a King not always personal ibid. A League holds with a People or a lawful King though exil'd his Kingdom but not with an Vsurper page 195 League equal or unequal page 183 Leagues how they differ from Sponsions ibid. Leagues unequal 48 183 184. give no jurisdiction properly page 49 In unequal Leagues Kings or People may be equal in freedom though not in dignity ibid. In Leagues who are superiour page 49 50 Leagues some require exact natural Right only and why 182. its breach is a matter odious page 193 The Prince of the Leagues may be said in some things to command page 49 50 In Leaugues unequal the danger whence page 51 Leagues unequal contracted sometimes where no War is 184. whether to be made with men of different Religion ibid. this proved by experience 185 186. some cautions page 186 Leagues forbidden to be made with some Nations and why page 184 Of Leagues some favourable some odious some personal some real page 195 Leagues of Peace and society these either for Commerce or War page 182 183 Whether they that are unequally Leagued have the Right of Embassages page 206 Leagues divided page 182 A League for a set time not by silence renewed page 187 No League binds to an unjust War page 186 No breach of League to defend the injured Party if in other things the Peace be kept page 194 Leagues never made but between Soveraign Princes page 181 Leagues of Joshua with the Gibeonites 169 he might not make a League with the Canaanites and why page 184 In Leagues words of Art interpreted according to Art 191. the stronger gives the greater power the weaker the greater honour 49 50. this Article not to make War without consent is to be understood of an offensive War only page 194 A League made with a Free People is real and binds though they admit of Kings unless made with other Free Cities to defend their liberty page 195 The Lenity of the Ancient Fathers towards them that erred in things Divine page 391 Letter of Marque page 448 Liberty personal recovered by Postliminy 489. or Peace which to be prefer'd page 419 The Liberty of a People what it signifies 42 43 c. of making War not rashly to be believed to be renounced page 193 The Liberty of Subjects obliged by the fact of their Superiours page 447 Liberty natural is to live where we list page 115 Liberty the usual Cloak of Ambition page 65 Liberty lost to recover no just cause of War page 407 Liberty some left the Conquered may secure the Conquerour page 527 Life prefer'd before Liberty page 419 The Lesser number to yield to the greater not natural page 139 Long possession see Possession Lots sometimes end a War page 551 Love of Parents toward their Children more natural than that of Children towards Parents page 123 A Lye strictly taken what 440. forbidden 439. by some good Authors in some cases approved 440. a wholesome lye the jocular and charitable not much blamed page 442 443 The form of a Lye what 441. whether naturally unlawful ibid. To Lye and to tell a lye differenced by Gellius page 440 Lyes our refuge in danger Rahabs lye page 443 No Lye if by an untruth spoken by me a By-stander be deceived page 442 Of Lyes the Schoolmen admit not but they do of Equivocations page 443 444 A Lye to preserve life whether lawful page 443 To Lye to an Enemy lawful 439 443. to be understood of words assertory not promissory 443 444. yet not if bound by Oath ibid From Lying to abstain even to an Enemy magnanimous page 444 Lying to be excluded in all Contracts in a Market page 441 To Lye in time and place fitting the part of Stoical wisdom page 440 Lying ill becomes a Prince 444. fear and poverty make Lyars ibid. For Lying and Perjury the punishment the same page 175 It is no Lye if in an Amphibology our words agree with either sence though misunderstood page 440 M. MAccabees resistance what page 60 Macedonians put all that are of kin to Traitors to death page 403 Magistrates should punish Offenders as Parents do Children page 417 Magistrates killing men are innocent but private men doing the same are Murtherers 374. whether they may remit punishments 375. Inferiours must not resist the Supreme 58. why chosen 376. they must judge according to Law but Princes the Laws themselves page 377 No Magistrate chosen without an Appeal to the People of Rome page 65 Magistrates Inferiour may reduce Rebels in a Case of imminent danger page 35 Magistrates Christians in St. Paul's time page 18 Magistrates amongst the Jews did not resist their Kings though wicked 57. in what Cases obliged to reparation of damages 203. how far they may oblige Citizens page 564 Magistrates not taking caution from Privateers whether obliged for the wrongs they do to their friends page 203 The Magnanimity of the Romans in respect of the Greeks page 445 Mahometans hold a necessity of restitution page 495 Majesty taken for the Dignity of the Person governing 49. what that
Wine and dainty fare the Court inflam'd Of their unbridled Lusts are not asham'd And a little after Cui fas implere parentem Quid reor essenefas Who fears not with his Mother t' lye To him what can be Villany The execrable Custome particularly among the Persians Orat. 20. Dion Prusaeensis prudently attributes to their evil education But here we cannot without wonder pass by that vain conceit of Socrates and Xenophon who could find nothing reprovable in these incestuous Marriages besides the disparity in age whence barrenness or mis-shapen children must necessarily follow For if there were no other reason than this to hinder such Marriages surely it could no more invalid these than the like disparity in years could render other Marriages unlawful But that which is much more worthy of our enquiry is this Whether among men unbyassed by an ill education there be not besides that which as I have said is conceived in the mind and understanding a natural abhorrency even in our affections to commix either with our own parents or with the children issuing out of our own Loyns Some Beasts abhor such Coitions Lib. 5. adv Gent. Hist Animal l. 9. c. 47. especially when we find the like even in some brute beasts For so amongst others Arnobius testifies where speaking of the horrour of such unnatural Coitions he saith Quem non hominibus solis sed animalibus quoque nonnullis natura ipsa subjecit ingeneratus ille communiter sensus Which Nature and common sense have instilled not into men only but into some beasts Aristotle records a notable experiment of this in a Camel who could not be induced to cover his own Dam until his Keeper had covered her head over with an Hood and so deceived him but the Hood falling off whilest he was upon her though he did the act yet remembring what he had done presently after so tore his Keeper that he killed him The like he relates of a generous Colt in Scythia which refused to cover his Dam but being in like manner deceived brake his own neck for very horrour of the fact Nat. Hist Lib. 8. c. 42. The like Stories we read in Pliny of an Horse that for the same cause killed himself and of a Mare that being likewise deluded worried her Keeper to death For saith the Historian these Beasts are not without some knowledge of their own kindred Not much unlike unto this is that of Oppianus in his first Book of Hunting and of Varro in his Second Book and Seventh Chapter de re rustica And to the like purpose is that of Seneca in his Hippolitus Ferae quoque ipsae Veneris evitant nefas Generisque leges Inscius servat pudor Ev'n Beasts themselves do from their Dams refrain And taught by Nature chaster Laws maintain XIII The degrees of Affinity and Consanguinity forbidden Another Question ariseth here concerning the degrees of Affinity and Consanguinity in the cross line especially of those mentioned Lev. 18. For though we should grant that they are not interdicted by the meer Law of Nature yet it is manifest that they are forbidden by the express Will of God And that not only to the Hebrews but to all mankind as may be collected from the very words of God himself to Moses Defile not your selves in any of these things for in all these things the Nations are defiled Lev. 18.24 25 27. Incestuous Marriages forbidden by God to Adam or Noah which I cast out before you and the Land is defiled Therefore do I visit the Iniquity thereof upon it and the Land it self speweth â—ut her Inhabitants Incestuous Marriages forbidden by God to Adam or Noah For if the Canaanites and their Neighbours did sin in all these things and were punished for so doing certainly they had a Law given them which forbad the doing of them Which Law since it was not meerly Natural must needs be given by God either peculiarly to them which is not very probable nor will the words bear that sense or to all mankind either at the Creation to Adam or after the Flood to Noah Now such Laws as were given to all mankind Christ did no wâ—ere abrogate but those only which as an Hedge or Partition wall did separate that Nation from all others Besides Eph. 2.14 1 Cor. 7.25 when St. Paul did so severely censure the Corinthian for marrying his Mother-in-Law as he had no peculiar command from Christ so to do so he useth no other argument to justifie his severity than this That it was reputed unclean even among the profane Gentiles Witness Carondas his Law which branded such Marriages with infamy And that of Cicero in a case not much different from that of the Corinthian Pro A Cluentio For having first laid open the matter of fact and proved the Marriage of the Mother-in-law with her Son-in-law in detestation of so foul a crime he crys out O mulieris incredibile scelus praeter hanc unam in omni vita inauditum O the incredible wickedness of a Woman and but in this never heard of When King Seleucus had a mind to give his Wife Stratonice to his Son Antiochus Verebatur ne ipsa offenderetur ut re illicita He was afraid saith Plutarch lest she should take offence at it as a thing unlawful For so it was in Virgil's account Thalamos ausum incestare novercae His Fathers Bed with Incest durst pollute Which general detestation of these Incestuous Marriages if it derive not its origine from an immediate dictate of Nature it must necessarily descend by ancient tradition from some precept given by God to Adam or Noah The Ancient Hebrews who herein were no mean Interpreters of the Divine Law and Maimonides who had read and with sound Judgement weighed all they wrote do assign two causes of those Laws concerning Marriages mentioned Lev. 18. The first is The Hebrews assign two reasons of those Laws A certain Natural modesty which will not endure that Parents should mix with their own issue either by themselves or by such persons as either in Blood or Alliance are nearest unto them The Second is for prevention of Fornications and Adulteries which too much Familiarity and daily Conversation without any watchful eye to restrain them may occasion especially if such wanton dalliances may be made good by lawful Marriages Now if we would judiciously adapt these two causes unto those Divine Laws before-mentioned Lev. 18. it will easily appear That in those that are allied in the right line either Ascendent or Descendent for we do not here mention that of Parents with their Children which Natural Reason without any other Law teacheth us to abhor and in those the first degree of the oblique line which because of its immediate descent from the common stock is usually accounted the second degree by reason of that fresh and lively Image of the Parents in the Children The former of the two causes above-mentioned is
altogether discharged of the duty incumbent on him as a Father Nature it self will not admit of such an alienation but yet he may commit his Son to another man to be fed and educated by way of Substitution XXVII What power Lords have over their Slaves The most ignoble of all Subjections is that whereby a man gives himself up to perfect slavery Such were they among the Germans of whom Tacitus speaks That sold themselves for food and rayment And of such there were great numbers among the Graecians who as Dion Prusaeensis notes of Freemen became Slaves and performed their service according to Articles of Agreement Now that we call perfect Bondage which tyes a man during life to perform all manner of work for no other reward but food and cloathing which if it extend it self to whatsoever conduceth to the preservation of Nature is not much to be grieved at For our continual labour is indifferently well recompensed with a constant supply of things necessary for life which they that hire out themselves by the day only do often want This the Stoick Possidonius observed out of Histories that many in ancient times conscious of their own weakness to maintain themselves voluntarily submitted themselves to be commanded by others Constantly performing what they were able and receiving from their Lords whatsoever was necessary for them Like him in Plautus If I were free the charge were mine But being bound that charge is thine XXVIII Whether this power extend to life and death No Lord can have absolute power over the life and death of his Slave if we respect internal Justice For no man can take away the life of another and be guiltless unless it be for some capital crime committed and yet by the Laws of some Nations he that shall kill his Slave for what cause soever is indemnified as Kings are in all Nations by reason of their vast and unlimited power For as Seneca notes If a Servant dare not plead with his Master for fear of suffering the worst of torments De benef lib. 3. c. 22. no more dare Subjects with their Prince nor Soldiers with their General who have all of them equal Right though under unequal Titles No Master then hath a just power to injure his Slave but only as That is sometimes improperly called Just which being done is not punishable Such a Right did Solon give to Parents over their own Children and so did the ancient Roman Laws witness that of Sopater It was lawful for him being a Father to kill his own Children if they offended for the Law presuming upon the Fathers Integrity had permitted such a Right unto him The like power saith Dion we find permitted in many Nations famous for wise and wholesom Laws XXIX Of the Children of Slaves that are born and bred in their Masters family Vide infra Ch. 8. §. 18. Pliny l. 10. c. 34. de columbis Lex Visigothica The Sclavonian Law judgeth the Children by the Father The Laws uf England Littleton de Villanagio The Roman Laws What the Law of Nature is in this case If the Parents cannot maintain the Child but at the Lords charge the Child is a Slave But of the children of Captives which are born of Slaves in their Lords Family there is yet a more difficult question For by the Laws of the Romans and of other Nations concerning Captives as we shall elsewhere shew as of brute Beasts so of people of a servile condition it holds true that Partus sequitur Ventrem As is the Mother so is the Child But this notwithstanding is not altogether congruous to the Law of Nature especially where the Father of the Child may be sufficiently known For since even among dumb creatures as Pliny observes of Doves Amor utrique sobolis aequalis Both Parents are equally concerned for their own young thereby acknowledging their common interest in them So also had not the Civil Law otherwise determined the Child had followed the condition of the Father no less than that of the Mother For if the Son saith the Visigothick Law be born and created by both Parents why should he follow the condition of the Mother only who without the Father could not beget him Among the Sclavonians as also in some parts of Italy among the Lombards and Saxons the children are accounted either bond or free from their Father The Laws of England judge of the Child not by the Mother but by the Father for the Husband and Wife being but one person in our Law and the Wife marrying a Freeman by the common Law of England the Issue is free Which Laws though different from the Roman Civil Law yet as Aquinus notes doth not much deviate from the Law of Nature And why not since among the Romans by their Mensian Law if both the Parents were Aliens the Child born of them were so too as Vlpian tells us Now let us admit that both the Parents are Slaves it is worth our pains to know whether naturally the Child be so or not And certainly if the Parents have no other means to breed up the Child but in their Lords family or at his charge they have a power to deliver him up to the Lord for a Slave For although the Child were ingenuous and free-born yet in such a case they have power by the Law to sell him And in case the Parents were Servants to several Masters then by the Law of Nature the Children were to be divided between their respective Lords But if they had but one Child then of right it belonged to him whose Slave the Father was the Lord of the Mother being first satisfied for his half part and yet of the Children of him that was born in the house of his Lord two parts did accrew to his Lord and but one to the Lord of the Mother according to the Edict of Theodoric Otherwise not as Cassiodore records Now whereas I said before that the Parents if they had not any means to breed up their Children but at the charge of their Lord might deliver them up unto him as his Slaves it may seem that this Power doth naturally arise from their supplying them with food and other necessaries and therefore where there is no such necessity as where there are other means to breed them they have no right to sell them And so it was adjudged by Charles the Bald wherefore the Right that these Lords have in the Children of their bond-servants springs from the many years Alimony that is given them by the Lord before they could be serviceable to him which they are to recompense by their future labour And for this cause the Parents cannot dispose of them to any other man neither may the Servant flee from his Lord until full satisfaction be given unto that Lord for the charge of their education But if the Lord be too unmercifully cruel then that even they who have surrendred themselves as Slaves may provide for their
did the wrong Secondly By taking away from him the power to do wrong Or Thirdly By deterring him from doing any further wrong by the sharpness of his punishment which is conjoyned with reformation whereof we have just now already discourst But to be secured from others by the punishment of him who hath offended it is necessary that the said punishment be publick and conspicuous which appertains to exemplary punishments whereof more anon Now if our desire of revenge though private be directed to these ends only and can be impaled within the bounds of equity if we look at the bare Law of nature first abstracted from divine and humane Laws and from those other occurrents which do not necessarily happen to the thing it is not unlawful whether it be done by the person injured or by another seeing it is natural for one man to help another De Invent. lib. 2. In which sense may that of Cicero be admitted where he defines the Law of nature to be that which consists not in opinion or custom but in that which nature it self suggests unto us where also amongst other examples he places this of vindication which he there opposeth to grace or pardon And lest any man should question the extent of the word he defines it to be that whereby we defend both our selves and those who ought to be dear unto us from force and calumny by a just revenge or whereby we punish offences Mithridates in that Oration which Justin extracts out of Trogus speaks thus Against Thieves all men ought to draw their swords if not for their safety yet for their revenge which Plutarch in the life of Aratus calls 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the law of revenge By this natural Law Sampson justifies himself against the Philistines Judg. 15.3.7.11 when they had provoked him by taking away his wife and giving her to another Now saith he shall I be more blameless than they though I do them a displeasure for he concluded it to be just for him to injure them who had first provoked him by so great an injury and according to this rule he pleads his own cause and defends himself for being demanded by the men of Judah what he had done against the Philistines to provoke them he answered as they have done to me so have I done to them v. 11. Plut. Rom. ad finem When the Laurentines delivered up those that killed Tatius to Romulus to be punished he set them at liberty saying that blood was to be expiated with blood intimating that because Tatius had before slain their Embassadors or at least connived at it it was but just that blood should have blood for as Belisarius in Procopius notes it is but natural to account him as mine enemy who hath by an assault wounded me Thus likewise the Plateans in Thucydides plead for themselves in the like case we have deservedly punished them say they for by that Law that is in force amongst all men it is lawful to be revenged on those that first make war upon us Vand. 1. Demosthenes in his Oration against Aristocrates saith that this Law is common amongst all men to inforce satisfaction from them that have forceably taken away our goods from us and Jugurtha in Salust having shewed how Asdrubal had laid in wait for his life adds that the people of Rome did that which was neither just nor right in forbidding him that rigbt which the Law of Nations allowed him that is a just revenge and Aristides the Orator proves it by the authorities both of Poets Lawyers Proverbs and Orators that a revenge may be lawfully taken upon such as have first injured us St. Ambrose commends the Maccabees for revenging the blood of their innocent Brethren though it were on the Sabboth and against the Jews who bitterly complained against the Christians for burning their Churches he pleads thus if I should argue according to the Law of Nations I should recount how many Christian Churches the Jews burnt in the time of the Emperour Julian thereby concluding that to requite like for like was agreeable to the law of Nations thus did Jonathan and his associates revenge the death of their Brother John upon the Nabathits as they were celebrating some great Nuptials upon whom he unexpectedly fell and slew both men women and children as Josephus informs us But because men are too partial Judges in their own causes Ant. l. 13. c. 1. therefore that liberty which nature did at first indulge unto every man in vindicating his own quarrel is justly taken away and Judges appointed to determine all controversies between man and man and to help those to right who suffer wrong Thus Demosthenes pleads against Conon As for these injuries it was thought fit by our Ancestors that they should receive their punishment from the Laws and not from the rage and violence of every mans will So doth Quintillian the compensating of an injury is not only repugnant to the Law Laws and Magistrates ordained to punish offenders and why but unto peace for there are Laws Judges and Courts whereunto any man may appeal unless there be any that are ashamed to be vindicated by the Law So likewise the Emperours Honorius and Theodosius for this very cause are Tribunals erected and the defence of the publick Laws instituted lest any man should arrogate to himself the liberty to revenge his own quarrels So King Theodorick from hence do the Laws challenge from us a sacred reverence that no revenge may be taken by our own hand nor any thing done against our enemies by the suddain impulse of our own passions For how inconvenient this would be is evident by that plea of Tindarus against Orestes This if thou sufferest Menelau ' I ask If th' angry wife her husband's blood should spill And in revenge the son his Mother kill And if her blood cannot be washt away Without fresh blood where would these mischiefs stay Which words of Euripides being full of Prudence do abundantly supply both Philosophers and Orators with matter of Argument Maximus Tyrius in his dissertation concerning the retaliating of injuries speaks thus A good man will neither do an injury nor suffer one not do one I mean willingly nor suffer one because he magnanimously slights all that are done unto him If to infer an injury be wicked surely to return one is somewhat like it for although he that wrongs another in that he gives the first offence commits the greater fault yet he that requites that injury because he was pleased with revenge is alike wicked for if he that doth his neighbour wrong do evil surely he that returns that evil is not the less evil because he doth it in revenge And a little after quis erit unquam injuriarum finis c. if it be granted saith he that a good man having received an injury may revenge it then may he that suffers that revenge as justly return it for on both
sin is the injustice of the fact For we speak not here of all sins but of those which have respect to something without the person sinning Now this injustice is so much the greater by how much the damage thereby done to another is greater And therefore those are the greatest injuries that are actually consummated and those the least which though they have made their progress through some Acts yet are not arrived to the utmost Act For which reason the coveting of our neighbours goods is placed by Moses in the rear of the Decalogue as being a sin of the lowest form or as it were but an introduction to sin which the farther it goes the worse it is In either of these kinds that is esteemed the greatest crime which disturbs Common Order and thereby gives offence to most men After this follow the injuries done to particular persons And of these the highest is that which touches the life of Man exprest by Moses in this Precept Thou shalt not kill The next is that injury done to a Mans Family the foundation whereof is laid in Matrimony contained in these words Thou shalt not commit Adultery The third and last are such as are committed against a Mans private Estate either directly as by stealing or indirectly as when by our false Testimony we prejudice the Right of others These may be yet more acutely divided But it pleased Almighty God in the Decalogue to follow this Order For under the name of Parents which are Natural Magistrates it is fit that Magistrates and other Rulers and Governours should be comprehended by whose Authority Humane Society is maintained Next unto this follows the Interdiction of Homicide the Institution of Matrimony and the prohibiting of Adultery then Theft is forbidden and false testimonies and in the last place such sins as are inconsummate Neither amongst those Causes that should restrain us from sin are we to place that single damage only that is done directly against others but that also which is probably consequent to it as in firing an house making a breach in the sea-bank or in a bulwark wherein the lives and fortunes of many Families are concerned Moreover that Injustice which we put here as a general cause of restraining from sin is sometimes aggravated by the addition of another crime as our impiety to our Parents our inhumanity to our Kindred our ingratitude to our Patrons or Benefactors Again a sin is reputed the greater being the oftner committed forasmuch as an habit of evil is far worse than some particular acts of evil Once to erre is pardonable but in iisdem saepius errare emotae est mentis To dash often against the same stone is folly nay madness the oftner we offend the greater punishment we deserve And from hence we may collect how far forth that was naturally Righteous which was usually done amongst the Persians who before they passed sentence upon a Malefactor The Persian Custom looked back to his former life and compared it with the present Crime he stood convicted of for they thought it unjust to take away the life of any man for one evil act unless the whole course of his life had been otherwise sinfull And indeed what Asinius Pollio saith is very true We are not to judge of any person by some particular acts but by his continued habits None are to be accounted notoriously wicked but they that have long persisted in a constant course of wickedness Nemo repente fit pessimus No man arrives at the heighth of impudency at the first For our innocency leaves us not but by degrees and boldness that it may learn not to startle at grosser villanies gathers strength and courage by the frequent committing of lesser ones And yet what Asinius Pollio said concerning the judging of mens present Crimes by their former lives ought to take place in such only who being otherwise not wicked have been on a sudden surprized by the sweetness of some particular sin But not in those who have changed the whole course of their former lives For of these God himself by the Prophet Ezekiel proclaims Chap. 18. Lib. 1. that he will have no regard at all to their former deeds whereunto that of Thucydides may very fitly be applyed They deserve doubly to be punished because they are Apostates from goodness and degenerate from Virtue to Vice And therefore it was wisely provided by the Primitive Christians in their censures of other mens failings That no Judgment should pass barely for the crime committed but with retrospection on their fore-past lives and on what followed as may be seen in the Council of Ancyra and others Lib. 3. de Sacerdotio So St Chrysostome Punishments are not alwayes to be inflicted according to the sole measure of the Crimes but we ought to enquire into the mind and manners of him that commits them But a Law being once Enacted against any one Vice Rom. 7.13 makes a sin exceeding sinfull So St Aug. Lex prohibens omnia delicta congeminat De vera Relig. Ob. The Law in prohibiting doubles all offences for it is not a single sin when we commit not that only which is in it self evil bâ—t tbat also which is forbidden us And by this argument St Paul aggravates the sins of the Jews in respect of those of the Gentiles because they had the Law to direct them We must not therefore be rash in judging nor as Cicero adviseth in grave and serious things determine of the will and intentions of the person accused barely by the fact but by his manner and custome of living A good man may haply be ensnared by the sweetness of a sin or by the sudden gust of temptations and yet in the general course of his life he may retain his integrity The heart of Asa is said to be upright all the dayes of his life and yet when he was sick it is objected against him That he sought unto the Physician and not unto the Lord. XXXI The fitness of the person offending to both which is diversly respected Now before we can rightly understand how to punish we must know the aptness and capacity of offenders to apprehend the causes which do either excite them to commit or restrain them from committing of sin Now this aptness or capacity of theirs we may guess at by either their temperament of body age sex education or some of the circumstances of the act For it will easily be granted that children women fools illiterate persons and ill educated cannot so well distinguish between just and unjust lawfull and unlawful as they that have more perspicacity and ingenuity and that they in whom choler predominates are prone to anger and revenge as they also that are of a sanguine complexion are to dalliance so young men are propense to one passion old men to another insomuch that Nature seems to plead somewhat in their excuse as to such sins as are as it were congeneal with them as
and the like The same almost may be said of such things as a man enjoys either jure precario by entreaty or permission respect being had to the propriety of the thing Or in his own private right respect being had to that Soveraign Right that every City or State hath over it for the publick and general safety Now if any of these shall be taken away by the occasion of another mans crime it is not as I have said before properly as a punishment but as the execution of that precedent right which by promise was transferred to him that takes it So when that Beast is put to death with whom a man hath had copulation as by the Law of Moses was decreed it was not by way of punishment forasmuch as a Beast having no Law cannot be said properly to sin and consequently is not liable to punishment but it is by virtue of that Right and Dominion that men have over Beasts to do with them as they please XII Properly no man can be justly punished for anothers fault These distinctions being granted we say that no innocent person can be punished for the default of another the reason whereof is Because every punishment presupposeth an offence and every offence must needs be personal because it ariseth from the choice of the will and nothing can be more truly and properly ours than that which derives its Being from us XIII No not the Children for their Parents It was St Hieroms observation That Neque virtutes neque vitia parentum liberis imputantur That neither the virtues nor vices of Parents are imputed unto their Children And St Augustine concludes peremptorily †Epist. 105. That it stands not with the perfection of Gods Justice to punish an innocent Dion Chrysostome when he had said That by the Athenian Laws the Children were sometimes put to death for their Parents crimes speaking of the Law of God he subjoyns But this Law doth not like the other punish the posterity of those that sin but makes every man to be the author of his own misery according to that common Proverb Noxa sequitur caput The punishment follows the malefactor only We do Decree say the Christian Emperours That where the guilt is there shall be the punishment for sin like a viper devours its own parents and therefore our fears should not be extended farther than our guilt Quis locus innocentiae relinquitur si alienum crimen maculet nescientem Where saith St Augustine shall innocence find sanctuary if the child that is ignorant and innocent must be involved in his fathers punishment Philo in his Special Laws Lib. 2. abominating the custom of some Nations in destroying the Children of Traytors and Tyrants saith Justum est eorum esse poenas quorum sunt delicta It is just that they should suffer that have sinned And in another place There is nothing saith he more unjust or of more dangerous consequence to a State than to deny either the virtuous children of wicked parents their deserved honour or the wicked children of virtuous parents their due punishment For the Law judgeth every man according to his own works and neither commends any man for the virtues nor condemns any man for the vices of his ancestors And Josephus condemns the contrary fact in Alexander King of the Jews calling it The exaction of punishment exceeding all humane measure So also doth Dionysius Halicarnassensis where he confutes that common pretence of cruelty which is that malus corvus malum ovum the child will be like the father For this also saith he is very uncertain and an uncertain fear can be no ground sufficient to justifie a certain death One was so bold as to tell Arcadius a Christian Emperour that the children should also attend their guilty parents to death if but suspected to have been infected by their example And Ammianus relates a story of a Daughter at that time very little that was put to death Nè ad parentum exempla succresceret lest she should grow to be like her parents Neither is the fear of revenge any just cause to destroy the children of guilty parents which occasioned that Greek Proverb Who kills the Sire and saves the Son's a fool For as Seneca notes There is nothing more unrighteous than for a child to inherit his fathers malice Pausanias the Greek Emperour would not do the least hurt to the Children of Attaginus who had caused the Thebans to revolt unto the Medes presuming that they were not guilty of that conspiracy And M. Anthony in his Epistle to the Roman Senate commands them to pardon the Sons of Avidius Cassius who had conspired against him together with his Son-in-Law and his Wife adding But what speak I of pardoning them who have done no evil And Julian highly commends the like humanity in Constantius shewing That good Children do many times spring from wicked Parents as Bees out of rocks Figgs out of bitter wood and Pomegranats from thorns XIV The objection taken from Gods dealing with men answered But God in the Mosaical Law threatens to visit the sins of Fathers upon their Children but he hath a full and absolute Power and Dominion not only over our goods but lives also as being his own gifts which he may take away from us at any time and that without any other cause given than his own will If therefore he do at any time by some violent and untimely death snatch away the children of an Achan Saul Jeroboam Ahab or the like he doth but exercise his own right of Dominion and not that of punishment and yet by the same effect he doth the more exquisitely punish the parents of those children Rab. Simon Barsemi 2 Sam. 21. 1 King 14. 2 Kings 8 9 10. Hom. 29. in Gen. 9. as some of the Jewish Doctors taught very truly For whether the parents do survive their children which the Divine Law did chiefly respect and therefore extends not its threats beyond the fourth generation which was possible for a man to see Exod. 25. most certain it is that the Parents were even therein intended to be more severely punished by so sad an example as being thereby more deeply wounded than by their own sufferings as Chrysostome well observes wherewith agrees that of Plutarch Nullum durius supplicium quam eos qui ex se sunt ob se miseros spectare No punishment so grievous as to see those born of us to be for our faults miserable Or whether the parents do not live so long as to see their childrens sufferings yet doubtless to depart this life in that fear is a most dreadfull torment The hardness of mens hearts saith Tertullian did urge the Almighty to this severity that so they that had any care of the welfare of their posterity might yield the more ready obedience to the Law of God Whereunto we may add that of Alexander in Curtius who being demanded what should become of their innocent
to our Ancestors for them it remains that the succession should pass to him that was dearest to the person deceased which is presumed to be his nearest Kinsman who is as it were his own Flesh Prov. 11.17 or his Brother Deut. 15.11 For our love to our kindred should be proportionable to the nearness they are unto us in blood so that after our Parents they are best to be provided for who are by nature in the nearest relation unto them And therefore among the Grecians as Isaeus tells us The Goods of the deceased did alwayes descend unto the next of kin Whereunto he adds What can be more just than that the estate that was a kinsmans should descend unto a kinsman How well would this conserve Humane Society saith Cicero and promote the honour of private Families if the nearer any man were allyed unto us so much the more benign and bountiful we would be unto him Next unto our children the same Cicero placeth our loving kindred who as they are nearest so ought they to be dearest unto us and to provide for these especially is a debt that we owe them not by Commutative Justice but by Distributive as being most worthy for the honour that is due unto our own blood And therefore the same Cicero speaking elsewhere of that natural affection which every man bears to his own Relations tells us That from thence ariseth the Testaments and Legacies of dying men It being much more equitable to leave our estates to our own kindred than unto strangers This is the Charity that is most acceptable to God Esay 58.7 De Off. l. 1. c. 30. as Esay tells us To feed the hungry to clothe the naked and that we hide not our selves from our own flesh And St. Ambrose highly commends that liberality that is shewn to our brethren and kinsfolks as being next in blood to us Now that succession that thus descends from a person dying Intestate is but as it were a silent Testament which the Laws of Nature and Nations make Authentick by guessing at the will of the deceased Thus Quintilian also Next unto them who claim a Right by the Testators Testament are his kindred in case he dye Intestate and Childless not because the Goods of the deceased are in Justice due unto them but because being deserted and as it were left without any certain Owner none can pretend so much right to them as they being the next of kin And what hath been said of Goods newly purchased by the person dying Intestate That they naturally descend to his nearest Relation may as truly be said of such Goods as descend unto him from his Father or Grand-father in case neither they from whom they descended nor any of their children do survive to whom in point of Gratitude they should return XI Diversity of Laws as touching succession Now though what we have here said be most agreeable to Natural Conjectures yet are they not by the Law of Nature necessary wherefore from divers causes moving mens wills successions do usually vary according to the diversity of Agreements Laws or Customs rationally grounded some whereof will admit of substitution in some degrees others not The Ancient Germans were altogether ignorant of that kind of succession which we call Representative even among their children as that the Eldest Brothers Son should succeed in the room of his deceased Father which Right first took place in France by an Edict of Childebert and was first introduced into those parts beyond the Rhine by Otho So the Ancient Scottish Right of succession went according to the sole proximity in blood Pontanus 7. Danicor and not by substitution it being so decreed by the King of England who was chosen as Arbiter to decide that difference In some places regard is had to the first Purchaser in others this is neglected There are some Countreys where the first-born carries away the greatest part of the estate as among the Hebrews but in some others all the Children share alike In some the kindred by the Fathers side only succeed in others those by the Mothers have an equal portion In some regard is had to the Sex in others none at all In some the kinsfolks in the next degree only are admitted in others they admit those in degrees more remote To trace all would be tedious neither is it my purpose so to do But this we must grant That where the deceased hath declared nothing of his Will it must be presumed that the Estate should pass as the Law or Custome of the place doth order it but not so much by the power of the Empire as by the force of this Conjecture which also takes place against those in whom the Supream Power resides For it is very probable that what they by their Laws command or by their Customs approve of in their Subjects the same in their own affairs they hold to be most Equitable so as no great damage ariseth to them by it XII How succession to Kingdoms patrimonial ought to be guided Daughters capable to succeed in Egypt and Britain As concerning the Succession to Kingdoms we must distinguish between those that are Patrimonial and in a full and absolute manner possest and those that are held in such a manner as pleaseth the People The former sort may be divided even between the Sons and Daughters as in the Kingdoms of Egypt as Lucan testifies Nullo discrimine Sexus Reginam scit ferre Pharos In Aegypts Throne Difference of Sexes there is none The like doth Tacitus record of the Brittish Empire In Asia after Semiramis Neque enim Sexum in Imperiis discernunt Tac. many Women were permitted to Reign saith Arrianus as Nitocris in Babylon Artimissa in Halicarnassus and Tomyris amongst the Scythians yea and such Kingdoms may be divided as in Asia all the Brothers Reign together though one only hath a principal Right to the Crown which Custome the Empress Irene would without any precedent have introduced into the Constantinopolitan Empire in the Reign of Andronicus Palaeologus as Gregoras notes That saith he which is most strange and to be admired was That she was not willing Lib. 7. that any one should obtain the whole according to the Ancient Custome of that Empire but according to the Examples of the Western Princes the Cities and Regions should be divided amongst her Sons that so each of them might hold his Kingdom as his Patrimony just as the estates of private men are divided among their children so that each part of the Empire should descend perpetually to each of her Sons and to their Heirs after them For being her self of a Western Extraction she indeavoured to introduce their Custom without example Neither are adopted Sons less capable of Succession by guessing as the Will of the Intestate than true Sons Thus did Hyllus the Son of Hercules succeed to Aepalius King of the Locrians by Adoption Strab. l. 9. as also did Molossus the Bastard in the
mercy For that Divine Law that commanded them to destroy the Nations Deut. 7.4 Exod. 23.33 being compared with another charge given by God concerning them Deut. 20.10 will admit of this limitation That if they yielded upon the first summons they might be received to mercy As is clear by the Histories of Rahab who for securing the Spies was saved Jos 16.10 Of the Inhabitants of Gezer who were suffered to live among the Ephramites and to serve them Of the Gergezites of whom St. Matthew records Mat. 8.28 that there were some living even until his time Neither shall we find these ennumerated among those that were to have been extirpated as you may read Deut. 20.17 Jos 9.1 And lastly It is clear by that Act of Solomon 1 King 20.20 21 whereby he is said to have received the remainder of the Canaanites whom the Children of Israel could not destroy as his Tributaries and Bond-Servants unto that day Yea and if we examine the cause of that severe charge given unto Moses for their extirpation as it is exprest Exod. 23.33 Deut. 7.4 we shall find that in case as the Hebrew Doctors observed they would submit to the Commandments given to Noah and his Sons and pay Tribute the cause of their extirpation being taken away they might live Now why Joshua might not as well spare the Gibeonites upon their Dedition as he did Rahab and the Canaanites of Gezer upon theirs no solid Reason can be assigned And yet that the Gergezites being the Off-spring of the Inhabitants of Gezer were spared and lived as Tributaries to the Israelites till Christs time is most evident by the Sacred story The immediate cause of the destruction of all the rest of the Canaanites was not any inexorable Command given by God to Moses for that left them a possibility to live because a power to submit But the hardness of their hearts which proceeded from God as a punishment for all their great provocations Jos 11.19 20. that so he might destroy them utterly without any mercy as the Lord commanded Moses Wherefore considering that in case the Gibeonites had dealt plainly with Moses which they durst not do for fear of him and had voluntarily given themselves up as Bond-servants It is probable that he would have spared their lives under the same condition as he did the Inhabitants of Gezer Therefore Valuit juramentum The Oath was to remain inviolable Yea and the breach of this Oath three hundred years after when Saul either forgetting the Oath of his Forefathers or out of a well-meant zeal slew some of these Gibeonites cost the lives of many thousand Israelites 2 Sam. 21.6 in the three years Famine which God brought upon Israel Of this opinion was St. Ambrose who handling this Question saith Joshua did not think it safe to break the Peace with the Gibeonites because he had confirmed it by Oath Ne dum aliorum perfidiam arguit De Off. l. 3. c. 10. suam fidem solveret Lest whilest he punished others for their perfidiousness he should be found guilty of Perjury Neither did this fraud of theirs go altogether unpunished For whereas had they dealt plainly they had been admitted upon paying of Tribute only now their Corporal Slavery is at once the price of their lives and the just Punishment of their Craft and Subtilty So were the Brutiani served by the Romans Loh 10. c. 3. as Gellius relates V. The words of an Oath not to be too far extended Neither should the meaning of an Oath be wrested to any other sense than the words do usually bear Wherefore when the Children of Israel having sworn not to give their Daughters in Marriage to the Benjamites did notwithstanding suffer the Benjamites to take the Daughters of Shiloh by force and to enjoy them they were not guilty of Perjury For it is one thing to give and another not to require what is already lost Whereof St. Ambrose speaks thus This Indulgence of theirs was not without a Punishment suitable to their Intemperance whilest they were permitted only to enjoy those whom they had ravished without the solemnity of Marriage Nec hortabantur Israelitae nec prohibebant saith Joseph The Israelites did neither encourage the Benjamites nor forbid them Now the Law saith Seneca may punish him that succoureth an exile but not him that only suffers him to be relieved Not much unlike was that request which the Achaians made to the Romans who were highly displeased at some things by them done and confirmed by Oath namely That the Romans would be pleased to alter what they would but not to bind them by any Religious Vow to null those things which they had already established by Oath VI. Oaths bind not to things unlawful Secondly That an Oath be binding it is necessary that it refer to things lawful For if the thing promised upon Oath be forbidden either by the Law of Nature or by the Divine Law or interdicted by humane Laws whereof more anon it hath no power at all to oblige us That which is unlawful to be sworn is unlawful to be done being sworn and that which is unlawful for us to do is unlawful to be sworn All Oaths have a tacite exception of the higher powers and of former Oaths Now God is greater than man and therefore having first bound our selves unto him no Oath made against him or against our duty to him ought by us to be performed but repented of No Weapon formed against him shall prosper saith the Prophet Es 54. It is good counsel that Philo gives in this case Let him that goes about to do an unjust act by reason of his Oath know That he doth not thereby perform his Oath but break it For an Oath is a sacred thing which deserves our greatest care and devotion to preserve whereby we stand obliged to do such things only as are just and honest For he doth but accumulate one sin upon another who to a wicked Oath adds a dishonest action Wherefore let him that hath ensnared his own Soul by a rash Vow yet refrain from doing wickedly That God who is rich in mercy may forgive him For wilfully to contract a double guilt when we may be discharged from a single one is an incurable madness Rash Vows are ill made and sometimes worse kept Our Tongues must not bind our hands to do wickedly 1 Sam. 25. David was less sinful in breaking his Oath and sparing the life of Nabal whom he had sworn to kill than Herod was in killing the Baptist or Agamemnon in sacrificing Iphigenia for their Oaths sake Surely Oaths were never invented to be the Bonds of Iniquity Praestare fateor posse me tacitam fidem Si scelere careat interim scelus est fides My Faith perform I can I do confess If void of Sin else Faith's but Wickedness Some Promises cannot be performed saith Ambrose nor some Oaths kept without the violation of our duties to God or Man And if
they be protected until their Cause be examined and by what Law And this also is observable that Suppliants may be defended until the equity of their case be rightly known Thus Demophon tells the Ambassadors of Eurysthius who demanded of him some that fled unto him for protection Si crimen istis aliquod hospitibus struis Jus impetrabis vi quidem hinc non abstrahes If with foul crimes you can them charge you may What 's right obtain but not them force away But if the Crimes whereof they stand accused be such as are neither against the Laws of Nature or Nation then shall they be judged by the Civil Law of that place from whence the Suppliants came which Aeschylus excellently proves in his Tragedy of Suppliants where he brings in the King of the Argives bespeaking a Company of Grecians that came out of Aegypt thus Manum tibi si immittat Aegypti genus Quod lege patria proximos se sanguine Dicant quis haec objicere se contra velit Quare tuum est docere natalis soli Ex lege nullo jure te illis subjici VII How Subjects may partake of their Princes faults How the faults of Subjects whether Natives or Strangers may be transferred to their Governours we have already seen Now on the other side Subjects also may partake of their Princes faults in case they either consent thereunto or act any thing at his Command or by his perswasion that is wicked but hereof we shall discourse more properly anon when we treat of the Duty of Subjects towards their Prince There may be also a communication of Crimes between the whole body of the people and each particular member thereof because as St Augustine observes Vbi universi ibi singuli Vniversals cannot consist without individuals so every single person being congregated and united in one gross body doth constitute a body universal But yet the faults committed by this Body Politick are properly transferred to those particular members only which did yield their consents unto those publick acts and not unto those who were over-voted by the major part of the Council And as the faults so the punishments of singular persons Licurgus Orat. are distinct from those of the whole Nation For as upon individual persons the greatest punishment that can be inflicted is death so the death of a City is desolation Sup. cap. 9. sect 4. which happens when the Body Politick is wholly dissolved that is when all the Laws Priviledges and other advantages thereof do utterly fail and by this means every single person may of a Citizen become a slave as the Thebans were to Alexander of Macedon Plut. Alex. those only excepted that contradicted the decree of dissolving the Society So also a City or a Kingdom may be reduced into a civil servitude by being made a Province And every particular person may lose his propriety by confiscation and whatsoever that City or People held in common as their Walls their Magazins their Ports Men of War Fleets Elephants Treasuries yea and their Common Fields all become the Conquerours But for private men to lose their particular Estates through the defaults of the universality without any consent of theirs is unjust as Libanius very well observes in his Oration concerning the Antiochian Sedition The same Author approves the fact of Theodosius for punishing a common fault with the loss of their publick Theatres Baths and the honour of being a Metropolis which St Chrysostome also confirms in his seventeenth Oration de Statuis After the very same manner were the same Antiochians of old punished by M. Antoninus the Philosopher c. VIII Whether a punishment once due may at any time be exacted But here we meet with a notable question whether the punishment due for an injury done by the generality of any one City or State may at any time afterwards be exacted so long as that State City or Commonwealth doth subsist it may for that which is justly due at all times may at any time be exacted because the same body politick still remains though the individuals succeed each to other as we have elsewhere shewed But yet on the other side we must note That some things are primarily and absolutely necessary to every Corporation as to have a publick Treasury to have Laws and the like others appertain thereunto derivatively only from those individual persons that inhabit therein In which sense a Nation or City may be said to be just valiant prudent if most or many of the Inhabitants thereof be such and of this kind are the merits of a City For that which hath no life cannot of it self contract any guilt but a City is said to be guilty in respect of those particular persons who actually offended but they being dead by whom the guilt was deduced to the generality of the People the guilt dies also and consequently the obligation to the punishment which without merit cannot consist Thus Libanius in his fore-cited Oration There is no place left for revenge where all are dead that gave the offence Wherefore Alexander is highly condemned by Arrianus for his too much cruelty and injustice in his revenge taken upon the Persians there being no one person then living of those who had formerly offended the Grecians And therefore Julian ascribes that War to another cause There was never any War saith he reputed just Constantii laudatione that was undertaken for such a cause neither by the Grecians against the Trojans nor by the Macedonians against the Persians as may be made clear to any child for they never visited crimes anciently committed by Parents on their Nephews or Children but invaded those only who had by force oppressed the posterity of such as had well deserved and dispossest them of their Kingdoms Concerning the destruction of the Branchidae made by the same Alexander Curtius gives his judgment thus If saith he the same punishment had been inflicted upon the Traitors themselves it had been recorded as an act of his justice and not of his cruelty but the revenge fell upon the innocent whilst their posterity who never so much as saw Miletum and therefore could not betray it to Xerxes pay the price of their forefathers sin The like judgment doth Arrianus pass upon Alexander's burning of Persepolis in revenge for what the Persians had long before done unto the City of Athens But saith Arrianus In mine opinion it was not wisely done of Alexander neither could that be truly said to be a just revenge upon those Persians who had been dead long before For as to that answer which Agathocles made to the just complaints of the Inhabitants of Ithaca namely that the Sicilians had of old suffered much more by their Countryman Vlysses none that hears of it but will think it ridiculous And Plutarch in his Book against Herodotus saith That it was a thing very improbable that the Corinthians should revenge an injury done them by the
it is a thing in it self so horrid Quest Nat. lib. 5. c. 18. Grat. c. 33. q. 1. that nothing but pure necessity or perfect charity can denominate it just or honest So St. Augustine Militare non est delictum sed propter praedam militare peccatum est Simply to make War is not sinful but to make War for plunder and pay only must needs be wicked X. Especially they that make War for spoil Nay to make War for pay or hire is likewise a sin if that be the only or principal thing we aim at though otherwise to receive pay for our pains when we are lawfully called to fight is altogether lawful For who saith St. Paul goeth to War at any time upon his own charge CHAP. XXVI How War may be justly waged by such as are Subjects to anothers Command I. Who they are that are under the dominion of another II. What they ought to do being admitted to debate or being left to their free choice III. If they think the cause unjust though commanded they ought not to make war IV. What they ought to do in case they doubt the justice of the Cause V. If they cannot be satisfied their persons are to be spared but their Taxes heightened VI. In what case Subjects may justly take Arms in an unjust War I. Who are said to be under anothers Dominion HItherto we have treated of such as are free and have power to dispose of their own actions There are others that are under a more servile condition and such are the Sons of a Family Servants Subjects and each particular Citizen compared with the whole Body of the City whereof they are II. What they are to do being left to their own choice But these men if either admitted to advise or left to their own choice whether they will either take up Armes or be quiet ought to be guided by the same Rules which are already set down for those who being free have power to make war either for themselves or others III. What if they think the cause unjust But if commanded thereunto as usually they are then if it be evident unto them that the Cause is unjust they ought altogether to forbear for that God is rather to be obeyed than man was not only the judgment of the Apostle but even of Socrates also as Plato testifies in his Apology So also thought the Hebrew Doctors namely That Kings if they command any thing contrary to Gods Laws were not at all to be obeyed For this Josephus records of his Country-men who being convicted before Herod for pulling down the Roman Eagle which he had caused to be erected over the Great Gate of the Temple at Jerusalem and demanded how they durst do it returned this Answer Ant. lib. 17. c. 8. What we have done we did in vindication of God's honour and of that Divine Law whereof we profess our selves to be the Disciples neither hast thou cause to wonder if we hold the Laws which Moses delivered unto us from God himself to be more sacred and indispensable than thy Decrees Neither do we refuse to suffer death or any other punishment thou shalt think fit to inflict upon us as knowing that we shall not suffer as Malefactors but as Martyrs in a good Cause That excellent Saying of Polycarpus now ready to expire lives still upon Record namely To Princes and Potentates we owe all due honour and obedience yet not so as thereby to endanger our eternal salvation It was the advice of St Paul Children obey your Parents in the Lord Eph. 6.1 for this is right upon which words St Hierome thus glosseth For Children not to 〈◊〉 their Parents is a sin but because Parents may haply command that which is unlawful therefore he addes In the Lord. And St Chrysostome thus expounds them Children obey your Parents in the Lord that is in all things wherein you shall not disobey God Ad Patrem Infidelem And in another place he saith For it is no small reward that God proposeth to us for our obedience to Parents and Magistrates For we are commanded to esteem them as our Lords and both in words and deeds to yield them all due observance yet so as the works of true piety and devotion are not thereby hindred But if thine obedience unto God call thee forwards then that of St Hierome holds true which he speaks declamatorily out of Seneca Per calcatum perge Patrem Thou must go on though thou tramplest on thine own Parents For our obedience unto our Parents cannot justifie our disobedience unto God For as the same Apostle saith Every man shall receive from God according to his own works whether bond or free The like advice doth St Hierome give unto Servants where he addes In Eph. 6.1 But when our carnal Lords shall command any thing contrary to the will of him who is the God of the Spirits of all Flesh then they are not to be obeyed Again in another place In those things only are men subject unto their Lords and Masters which are not contrary to the Commands of God So likewise Chrysostome Servants also have their bounds and limits prescribed them by God In 1 Cor. 7.24 and how far they may go in their obedience is also commanded beyond which they must not proceed If the Lord command us nothing that is by God forbidden he is to be followed and obeyed but not beyond The like advice gives Clemens Alexandrinus concerning a Wife Let her saith he obey her Husband in all things and do nothing against his will but what she believes may very much conduce to vertue and her own salvation So likewise Tertullian We are sufficiently instructed saith he by the Apostles Precept to be subject to Magistrates Princes and Powers in all obedience Sed intra limites Disciplinae So far as they transgress not the Rules of Christian Discipline The like we read of Silvanus the Martyr We therefore despise the Roman Laws lest we should thereby transgress the Divine Laws And Musonius If a Son a Servant or a Subject In Martyrologio shall refuse to yield obedience unto either a Father a Master or a Prince in such Commands as are impious and ungodly they shall not be accounted as disobedient injurious or wicked Now as the obedience of Servants is bounded by the Divine Laws so is that of Children to Parents Lib. 2. c. 7. Aulus Gellius approves not of this opinion That a Father is in all things to be obeyed For saith he what if he command his Son to betray his Countrey to kill his own Mother c. Therefore the middle way is best and safest in some things we must in other some we must not obey So Seneca the Father Non omnibus Imperiis parendum est All Commands oblige us not unto obedience So Quintilian There is no necessity that Children should execute all their Parents Commands for there may be many things which though
was not according to the custom of the Grecians The like we read of Thucydides Ye did accept of us who willingly and with lifted up hands begged to be received to mercy and it is not the custom of the Grecians to kill such The Syracusian Senators in Diodorus tell us That to spare a Suppliant is the sign of a truly noble and magnanimous spirit And Sopater confesseth That it was the custom of the Grecians to save such as begged for life in the Wars In Towns that were besieged this custom was generally observed by the Romans That if they yielded before the Battering Ram toucht the Walls the lives of the Citizens were saved Caesar signifies to the Advatici That he was willing to preserve their City in case they would surrender before his Ramms approached their Walls Which custom is yet observed with this difference In places meanly fortified before the Cannons begin to batter but in places of great strength before a breach be made in their Works Howbeit Cicero respecting not so much what may lawfully be done as what in equity ought to be done gives his opinion in this Case thus Seeing that we ought to provide for the safety of those whom we conquer it is fit that we receive them into protection who shall surrender themselves though our Ramms have battered their Walls The Jewish Interpreters note That it was a custom among their Ancestors when they had laid close Siege against any Town not to incircle it with a Ditch quite round but to leave one part thereof open for such to fly as would save themselves by flight whereby the Town might be taken with the least effusion of bloud Thus Scipio Aemilianus being commanded to destroy Carthage made Proclamation That they that would provide for their own safety by flight might do it freely as Polybius testifies XV. They also that surrender without condition The same equality bids us to spare those who are willing to surrender themselves to the will of the Conquerour without any Conditions at all Trucidare deditos saevum To kill those who are at our mercy is cruelty saith Tacitus †Tac. Lib. 12. Bello Jug lib. 1. de Rep. ord So also Salust rehearsing that bloudy fact of Marius in putting to death those young men among the Campsans that had delivered themselves to mercy saith That it was facinus contra Jus Belli A cruelty scarce justifiable by the natural Right of War And in another place he complains of the like cruelty saying That he was so far transported with rage that he put to the Sword not only men armed and such as were in Battel which he might do by the Law of Armes but even Suppliants also that begged for mercy So also Livy Qui deditis contra Jus ac fas Bellum intulisset He made War even against those that yielded themselves contrary to the Laws of God and good men Nay the principal design of a General should be rather to force his enemy through fear to surrender than to kill them And herein is Brutus to be commended who would seldom fall on his enemy by assault but chose rather to encompass them with his Horse commanding his Souldiers to spare them who e're long would be his own XVI Unless some very great crime do hinder Against these Rules of natural Right and Equity are usually brought these specious Exceptions which notwithstanding have little of solidity in them as namely What if such acts of cruelty be done by way of retaliation what if they be done by way of example to deter others or what if it be done against such as have been notoriously obstinate None of these are sufficient to justifie an unnecessary or an unjust Slaughter as is easily to be collected by what we have already written concerning the just causes of killing Enemies For from Captives and such as actually deliver themselves or desire so to do there can be no danger That therefore they may justly be put to death there ought to precede some such crime as to an impartial Judge should deserve death And thus we may haply read of cruelty sometimes used unto such as have either been taken Prisoners or yielded without Conditions of life if being convicted of the injustice of the War they have still persisted in Armes or if they have reproached or defamed the Conquerour with bitter invectives or have broken their faith or somewhat of the Law of Nations as the priviledges of Ambassadours or have been Traitors Renegadoes or the like But as to the Objection of retaliation Nature doth not admit thereof unless it be against those numerical persons who have done the wrong Neither will it suffice to say That the Enemies do all of them make but one Body by their combination against us as may easily be gathered by what hath been already said when we treated concerning the communication of punishments For as we read in Aristides Is it not a shame to imitate that as just which we condemn in others as unjust Upon which account it was that Plutarch blames the Syracusians for putting to death the Wives of Hicetas Plut. Tim. Dion and his Children for no other cause but because Hicetas had before put Dion's Wife his Sister and little Son to Death But as to the profit which may hereafter be expected by putting a terrour into others Terror this gives no positive Right to put any man to death that yields himself Prisoner But if there be just cause of death before given this may be one cause amongst others why the punishment due may not be remitted Again an obstinate endeavour to maintain our own Party if our cause be not altogether unjust or dishonest doth not at all deserve punishment Goth. lib. 1. as the Neapolitans argue in Procopius or if it do surely that punishment cannot amount to death if equity may be the Judge When Alexander had commanded all the Youth in a certain Town to be put to death because they defended it so resolutely against him Polyan Lib. 4. the Indians told him That he made War like a Thief or a Murderer Latronum more bellare Indis visus est saith the Authour whereupon to preserve his own honour he ever after used his Victories with more clemency Much more for his honour it was that he would have spared some Milesians because he perceived them to be very generous and faithful to their own Party as Arrianus records When Phyto the Praetor of Rhegium was dragged out to tortures and death because he had resolutely defended his City against Dionysius as they dragged him along he cried out That the Tyrant had thus punished him for no other reason than because he would not betray the City to him For which cause the Gods would certainly revenge his death upon the Tyrant within a short time Such punishments as these Diodorus calls unjust For mine own part I am highly pleased with that wish of Lucan's Vincat quicunque