notwithstanding the children do naturally owe reverence could not by her descent make the Marriage void no nor the father of a Free-man And if the Father himself be under the power of his own Father then the consents of both Father and Grand-father are required to the Sons Marriage But to the Marriage of a Daughter the Grand-fathers consent alone sufficeth Which differences being altogether unknown to the Law of Nature doth evidently prove that they arise not from the Natural but from the Civil Laws We find in Sacred story That many holy men and much more Virgins not to chuse Husbands for themselves 1 Cor. 7.36 Lib. 1. de Abrah c. ult women who by reason of their modesty and bashfulness ought especially in this case to be governed by others have in contracting Marriages submitted themselves to the authority of their Parents Non est virginalis pudoris eligere maritum It becomes not a Virgins modesty saith Ambrose †Grat. c. 32. q. 2. to chuse an Husband for her self And yet was not Esau's Marriage declared null nor his Children held as Illegitimate because in his Marriage he had not the consent of his Parent It is true That as to Daughters the chief power of disposing them is in the Father So in Euripides Hermione My Nuptial I to Parents care alone Commit for free choice therein have I none But as to Sons If we respect strict and Natural Right that of Quintilian will be found true That if it be lawful for a Son at any time to do things otherwise unreprovable without yea against his Fathers will surely that liberty is never more justifiable than in Marriage For as Cassiodore truly observes Durum est libertatem liberam non habere in Matrimonio Lib. 7. c. 4. unde liberi procreantur To be debarr'd of our free choice in Matrimony from whence our Children should be born is hard Ter. Andr. Act. 1. sc 5. nothing is more plain than that a Son in his Marriage should please himself XI It is a void Marriage that is contracted with anothers Wife or Husband That Marriage that is contracted with another mans Wife is doubtless null by the Law of Nature unless her former Husband have dismist her For so long doth his power last over her which by the Evangelical Law is not dissolved but by death The latter Marriage therefore is null for want of a moral power in the woman to dispose of her self which being lost by her former Marriage doth vitiate all those subsequent effects that attend it because every Act is but the invading of anothers Right So likewise on the other side by the same Law a Marriage contracted with the Husband of another Woman is alike void by reason of that power that Christ gives a chaste Wife over the body of her Husband XII Of Marriages between kindred Concerning Marriages between such as are nearly allied or of the same blood many difficult questions arise which are often with much zeal and animosity agitated on both sides Because he that shall undertake to assign certain and natural reasons why these Marriages that are by Law or Custome thus forbidden are unlawful should experimentally find how hard nay how impossible it is to effect it That alledged by Plutarch in his Roman Questions by St. Augustine in his Book De Civitate Dei by Philo in his Special Laws and by St. Chrysostome on 1 Cor. 13.13 as the contracting of new Friends and the strengthning our selves with new Alliances savours more of Policy than true Piety Nor are they of that force and energy as to conclude the contrary Acts to be either unlawful or void Whereunto may be added That some cases there may be wherein such prohibited Marriages may be more profitable and politick than others The Marriage of kindred sometimes profitable and politick as may be collected not only from that which God himself in his Law given to the Jews excepts of raising Seed to a deceased Brother having no issue But from that also of a Virgin left by her Father as sole heir of all his estate who by the Grecian and Hebrew Laws was to be Married to the next of kin to preserve the name and Estate in their own Tribe and Family and from many such like cases which do or may occur But yet from this general rule Incestuous Marriages forbid by the Law of Nature and why we must except the Marriages of Parents with their Children in what degree soever the reason whereof is sufficiently evident For neither can the Husband who by the Law of Matrimony is the head of the Wife pay that respect and reverence that Nature binds him to give to his Mother nor the Daughter to her Father For though she be subordinate to her Husband by Matrimonial Right yet doth her Marriage allow her so great a Familiarity with her Husband as is altogether inconsistent with the duty of a Child Paulus the Lawyer was in the right when having saâ—d before That in contracting Marriages the Law of Nature and Modesty were chiefly to be regarded he added That it was against modesty for a man to take his own Daughter to be his Wife And Philo in his Special Laws condemns it as an execrable wickedness to pollute the bed of his deceased Father which as a thing Sacred ought not to be toucht and without regard to either the age or the reverence of a Mothers name to make himself both Son and Husband to the same Woman and to make her both Mother and Wife to the same Man Wherefore such Marriages are doubtless not illegal only but void by reason of something that is vicious which perpetually cleaves to the effects of it Neither is that Argument of Diogenes and Chrisippus which is drawn from the practice of Cocks and such like dumb creatures sufficient to prove that such commixtures are not repugnant to the Law of Nature That is unlawful which is repugnant to Humane Nature Lib. 2. Contr. Jâ—â—it For as I have already said it is enough to conclude any thing unlawful That it is repugnant though but to humane nature This is that Incest which the Lawyers Paulus and Papinian wrote to be by the Law of Nations committed between the degrees ascendent and descendent And this is that Law of Nature which as Xenophon notes is no less a Law because it was contemned by the Persians Medes Indians and Aethiopians for which they were punished with perpetual Wars Parricides Fratricides as Philo first and after him St. Hierome observed For as Michael Ephesius well interprets it That is Natural which is of common use amongst such Nations as are uncorrupted And that live most agreeable unto Nature And therefore Hippodamus the Pythagorean calls these incestuous commixtures inordinate and unnatural lusts unbridled passions and abominable pleasures Such were those of the Parthians whereof Lucan thus complains Epulis vesana meroque Regia non ullos exceptos legibus horret Concubitus With
an Intestate to whom it naturally descends Dominion being once introduced that which naturally guides the Succession to the estate of a person dying intestate setting aside the Civil Law is our conjecture at the Will of the deceased For seeing that the force of Dominion is such that it may be transferred at the will of the right owner unto another Therefore in case a man dyes possest of an estate leaving nothing to testifie his mind after his death because it is not credible that he would leave it to him that could next catch it therefore shall it succeed to him to whom it is probable he would have left it had he lived to have declared it Defunctorum voluntatem intellexisse pro jure est saith Pliny Junior To have understood the Will of the deceased is sufficient to create a Right Now to the dead this favour is indulged That in cases that are doubtful it is presumed That every man would do that which is most just and honest whereof in the first place is the payment of his just debts and in the next that which though not due yet is most agreeable to our duty And therefore what is committed to a mans trust may be restored saith Paulus the person dying Intestate that trusted it to those that succeed him because it may be believed That his Will was freely to leave the lawful Inheritance unto them IV. Whether Parents do owe unto their Children any part of their goods It is much controverted by Lawyers Whether Parents may be said to owe their children Aliment Some of them hold it to be agreeable to Natural Reason but deny it to be a Debt But we think it fit here to distinguish of the word Debt which may be taken either strictly for that which by Commutative Justice we are obliged to do or largely for that which cannot with honour or honesty be left undone as being a duty arising from another spring but not from that of Justice First Reason Now Aliment is due to Children if Humane Laws do not otherwise determine of it in this looser sense In which I conceive that of Val. Maximus is to be understood Our Parents by nourishing us hâ—ve laid this obligation upon us to nourish our Children And that also of Plutarch in that most elegant Oration of his concerning the Love of Parents towards their Children Liberi haereditatem ut sibi debitam expectant Our Children look for our estates as due unto them after our death So great was the Equity of this Lib. 2. de vita cler ser 52. ad frat in eremo Gratian. c. 13. q. 2. c. 17. q. 4. in fine Pers l. 1. Second Reason That St. Augustine would not admit that the goods of such as had exheredated their own Children should be received by the Church And as Procopius in his Persian Wars observes Though Humane Laws do in other things extreamly differ one from another yet all Nations as well Romans as Barbarians in this agree That Children should succeed to their Parents as the right owners of what they leave Again Qui formam dat dat quae ad formam sunt necessaria He that gives the form gives things necessary to that form saith Aristotle Therefore he that gives man his existence ought as much as in him lies to provide for him all things necessary for a Natural and Social life for hereunto he was born There needs no Law to bind us to this duty for all other creatures even by Natures instinct do feed their young As Pliny observes of Swallows That with great equity they feed their little ones by turns Summa aequitate alternant cibum Hence it is that the Ancient Civilians do refer the Education of Children to the Law of Nature And Euripides comprehends all Creatures under one and the same Law Which saith he is common as well to men among themselves as to them with all other sensible Creatures For that which Natural Instinct commends to them the same doth Reason prescribe unto us Of such force is Natural affection that it easily perswades us to nourish our Children saith Justinian Nature is an Indulgent Mistress to all living creatures equally instructing them how to conserve not only themselves but those that are born of them that so by this successive Charity she may aspire to make her self immortal Quintilian brings in the Son claiming a Portion of his Fathers Estate by the Law of Nations Partem jure gentium pâ—to And Salust condemns that Testament as impious and unnatural by which the Son is excluded from his part of the Inheritance And because this is a debt that we owe to Nature therefore is the Mother bound to nourish the Child that hath no certain Father The Roman Laws made no provision for Bastards And though the Roman Laws made no provision for Children ex damnato legibus Concubitu that were illegitimate and that by Solons Laws it was provided That no man should leave any thing to his Natural Issue yet do the Canons of our Religion correct the severity of these Laws by teaching us That our Children however begotten by us should be a part of our care and that in case it be needful Beyond necessaries no man bound to provide for them we ought to leave them enough to preserve that life which we gave them but beyond necessaries is no man bound by the Law of Nature to provide for them Neither are we bound to nourish our Sons only but those also that proceed from them yea even to the third generation according to Justinian and that for humanity sake Neither should our Charity rest here but it should extend it self even unto those who issue out of our Loins and are born unto us by strange women if they cannot otherwise be maintained V. In Succession the Children of the deceased are to be preferred before their Parents and why Children ought also to nourish their Parents not only in obedience to many wholsome Laws but in common gratitude like the Storks who when their Parents are spent with age feed them and being faint receive them on their backs and carry them from place to place And therefore in fostering those who when we were Children fostered us we are Proverbially said To imitate the Stork †〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Reverence to Parents and sustenance to Children Nic. 8. Solon is highly commended for setting a brand of infamy upon those that did it not Yet is not this so ordinary as that which we have said of Children Because Children when they are born bring nothing into the world with them whereby to live and have probably a longer time to live here than their Parents have And as honour and obedience is properly due to Parents and not to Children So is Sustentation due rather to Children than to Parents And thus is Lucian to be understood when he tells us That it is more agreeable to the dictates of Nature for
have promised But to clear this yet better we must carefully distinguish between the three degrees of speaking concerning things to come which either are or at least are reputed to be hereafter in our own power II. 1. That a bare assertion obligeth not The first consists in a bare assertion of what we purpose for the future things thus standing and in the same mind we now are And hereunto it is required that we speak sincerely and without guile what at that present time we think But not with any resolution to continue in that thought if the face of things change or if other chances happen which though we then foresee not yet may otherwise incline us For the mind of man hath not only a Natural Power See Q. Elizabeth's dealing with the Hollander B. 2. c. 14. §. 12. but a Right and Freedome to alter its counsels and if there be any weakness or error in the change as it often happens that is not intrinsick to the change but to the matter in that we change from the better to the worse III. 2. A Promise though naturally obliging yet transfers no Right to another The Second degree is when the will confines it self for the time to come giving some sign whereby the necessity of its perseverance is sufficiently declared and this may be called a Pollicitation or a Promise which setting aside the Civil Law obligeth either absolutely or under some condition yet gives no peculiar Right to another For in many cases it happens that there may be an obligation within our selves when there is no Right given to another as may appear by those debts of mercy and gratitude whereunto we may refer those of Constancy and Fidelity and therefore no man can by the Law of Nature require the thing promised from the right owner by vertue of such a Pollicitation nor can the Promiser be compelled by that Law to perform what he hath so promised IV. 3. What that Promise is that gives a Right to another Thirdly When the Will to the confinement adds some outward sign whereby its consent to transfer its own proper Right to another is sufficiently declared Which is a compleat Promise as having the like effect to the alienation of a mans Property For it is the way to alienate a thing or at least the alienation of some part of our Liberty or Freedome Unto the former belongs our Promises to give unto the latter our Promises to do something And hereof the Scriptures do give us a notable example where they tell us That God himself who cannot be bound by any Law yet professeth it to be contrary to his own Nature not to perform what he promiseth Neh. 9.8 1 Cor. 1.19.10.13 Prov. 6.1 Heb. 6.17 18. From whence it is plain That to perform our Promises is a duty springing from the Nature of Immutable Justice which as it is in God so is it in some measure common to all such as have the use of right Reason Let us hear the opinion of Solomon in this case My Son if thou hast been surety for thy Friend thou hast given thy Faith to a stranger or as the Septuagint translate it to thine Enemy Thou art ensnared by the words of thy mouth Thou are taken and bound by thine own Speech Whereunto may be added that of Thales the Philosopher Stipulatus sponsio are such Promises as are made with solemnity Numb 30.4 5 6. Vox mea facta tua est Sponde noxa presto est Engage freely and thou art not far from harm And that also of Chilo Sponsioni non deest jactura Engagements are seldome made to loss Hence it is that the Jews term a Promise Vinculum A Bond which also in the Scriptures is compared to a Vow as if by Vows and Promises we did contract as it were with God himself From the same Root ariseth the Greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which likewise signifies a Promise namely from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which signifies To have or to hold Because he to whom any thing is promised doth hold fast and as it were bind the Promiser These things promis'd Connanus his Arguments are easily answered For what the Lawyers say De nudo pacto non oritur actio A bare Promise will bear no Action hath respect only to what was introduced by the Roman Laws which made Stipulation to be an infallible sign of a deliberate mind Paulus the Lawyer speaks very warily of such Promises Sent. lib. 2. tit 14. If saith he we make a bare Promise to pay use it avails nothing for among Roman Citizens no Action ariseth from a bare Promise The like Laws we grant to be in force among other Nations Quae lex ad id praestandum nos quod alicui promisimus De Promisso non Sponso jam non promittunt de te sed spondent Seneca Ep. 19. obligat What Law saith Seneca binds us to perform all our Promises Where he speaks of humane Laws and of rash and inconsiderate Promises But if we respect the Law of Nature only there may be other signs of a mind perfectly resolv'd besides that which the Romans introduced by Stipulation or if there be any other such like which the Civil Law requires to beget an Action But as to that Promise which is made rashly and without due consideration neither do we admit it to have any obliging power as Theophrastus hath well observ'd Yea and as to that which is deliberately done but not with a purpose thereby to transfer our own proper Right to another Rash Promises bind not we deny that from thence there ariseth Naturally a Right to any man to exact the performance of it Although we do acknowledge That from such a Promise there may arise an obligation not in honesty alone but in a moral necessity to do it And as to that of Cicero we shall treat hereafter when we shall discourse of the manner how Contracts are to be understood But now let us see what Conditions are required to make a Promise valid V. To make a Promise compleat the use of Reason is required in the Promiser And in the first place it is requisite that he that promiseth should be endued with Reason which renders the Promises of Mad-men Ideots and Infants void and of no force but the case of Minors is somewhat different For although they are believed to be but of weak judgement as Women also are yet neither is this weakness of Judgement lasting nor is it of it self sufficient to invalid their acts At what years a young man or woman arrives at the use of Reason cannot certainly be determined but must be guessed at either by their daily Actions or by the Customes of every Nation Among the Jews a young man after thirteen years of age might oblige himself by any solemn Promise he should make and a young woman after twelve But the Civil Laws upon better reason thought good to make void many
other creatures Wisdom furnisht them with such natural Muniments as were sufficient to defend them from violent incursions and sudden dangers But unto man being sent into the world naked and unarmed the better to instruct him in Wisdom hath God besides other endowments given him Natural affection whereby we are taught to love cherish and defend each other and readily to give and receive aid and assistance one to and from another against all outward assaults and dangers whatsoever III. Or Instrumental as Servants c. By Instruments here we mean not Arms or such like wherewith we either offend others or defend our selves But such voluntary Agents as are contented to receive directions from others Such as a Son is to his Father being a part of himself naturally or as a Servant to his Master of whom he is legally a part For as a part doth not only refer to the whole in the same relation as the whole is the whole of the part but this very thing That it is is the whole So Possession is said to be something of him that possesseth it And Servants saith Democritus are to be used as we do the members of our body some to one purpose and some to another Now what Servants are to a Family the same are Subjects to a Common-wealth and so are as Instruments to him who hath the Supreme power IV. Naturally no man excused from War Without doubt Naturally all that are Subjects may be employed in the War though some special Laws may excuse some as heretofore Servants among the Romans and now every where the Clergy As the Levites among the Jews were not liable to the duties of War as Josephus testifies which Law notwithstanding as all others of that nature must admit of the exception of extreme necessity And let this suffice to be spoken in general concerning Subjects and Servants For what more especially concerns them shall be handled in their proper places Hugo Grotius OF THE RIGHTS OF PEACE WAR BOOK II. CHAP. I. Of the Causes of War And First of War made in our own defence I. What Causes may be said to justifie a War II. That they arise either from our own defence or from requiring what is our own or is due to us or from punishment III. War made for the defence of our Lives lawful IV. Against the Aggressor only V. In such dangers as are imminent and certain not in such as are opinionative only VI. War made in defence of our Limbs lawful VII Especially in defence of Chastity VIII War made in defence of our selves may sometimes be omitted IX Our defence made against a Person publickly very profitable sometimes unlawful by the Law of Charity X. To kill a man for a box on the ear or for some such reproach or rather than flee not lawful for a Christian XI To kill a man in defending our Goods by the Law of Nature not unlawful XII How far permitted by the Law of Moses XIII Whether and how far permitted by the Evangelical Law XIV Whether the Civil Law permitting a man to kill another in defence of himself do give a right so to do or only an impunity explained by a distinction XV. When Duelling may be lawful XVI Of defence in a War that is publick XVII If only to weaken the growing power of a Neighbour Prince the War be to be reputed unlawful XVIII The defence of him who hath given just cause of a War is likewise unlawful I. LET Us now proceed to the Causes of War I mean those that justifie a War for there are others that excite men to War under the notion of Profit which are sometimes distinct from those which excite upon the account of Justice which as well between themselves as from the beginnings of War such as was the Hart in the War between Turnus and Aeneas Polybius doth accurately distinguish 3 Hist And though the difference between these are manifest yet are the terms usually confounded For even these causes which we call justifying Livy in the Oration of the Rhodians calls the beginnings of the War Lib. 45. Surely ye say the Rhodians are those very Romans who pretend that your Wars are therefore successful because they are just and that glory not in the event that ye can conquer but in the beginnings that ye never make War but upon just cause And indeed there was hardly ever any Nation that did so long pride themselves in the justice of their Quarrels as the Romans did The Romans saith Polybius took very great care not to begin a war with their Neighbours and would have all men believe that they never made war but to repel Injuries This Dion testifies in that notable comparison he makes between the Romans and Philip of Macedon and Antiochus And elsewhere he tells us That the Romans took special care that their Wars should be just nor did they ever decree a War rashly or without just cause In the same sence doth Aelian call the Causes of War Lib. 12. c. 53. the beginnings of War And Diodorus discoursing of the war between the Lacedemonians and the Aelians makes the pretences and the beginnings of the War to be the same These justifying Causes of War are the proper Argument of our present discourse Lib. 8. whereunto that of Coriolanus in Halicarnassensis is pertinent Let your first and principal care be that the ground of all your Wars be pious and just So is that likewise of Demosthenes Oâ—yâ—th 2. As in the building of houses Ships and such like the Foundation or Ground-work should be firm and lasting otherwise the Superstructures will soon decay and totter So in all our Enterprizes Justice and Truth should lay as it were the first stone Lib. 12. if we expect that the success should be honourable No less pertinent to this purpose is that also of Dion Cassius In all our Wars let our chief regard be to Justice for if she lead up the Van true valour may bid fair for the victory But if she be wanting though our first attempts flatter us De rep l. 3. yet will the end prove inglorious And that also of Cicero Those wars are unjust that are undertaken without cause And therefore in another place he sharply reproves Cassius for passing with his Army over Euphrates when there was no just cause of War given which holds true no less in publick wars than it doth in private Hence ariseth that complaint of Seneca Do we restrain Homicides and punish Murderers and yet esteem the depopulation of whole Nations glorious Covetousness and Cruelty know no moderation Commissions are every day sent out by the Senate and People to execute Acts of Cruelty and what we privately forbid we publickly commend Homicidium cum admittant singuli crimen est virtus vocatur cum publice geritur When a private man commits a murder he is punished as a Criminal but when thousands are publickly taken away and destroyed it is
faciat non voluntas As if it were the Sex that made the crime not the will But with us what is unlawful for women is equally unlawful for men The same yoke binds both to the like conditions There are some that are of opinion That our blessed Saviour in the fore-cited places Objection namely Mat. 5.32 and Mat. 19.9 did not ordain a new Law but only restore the old Aledging for themselves the very words of our Saviour which seem to reduce 〈◊〉 to the Original Institution Ab initio non fuit sic From the beginning it was not so Whereunto we may answer Answered That from our first condition when God to one man gave but one Woman we may well collect what was best for man and what most acceptable to God And from thence conclude That to walk by the same Rule was ever most safe and commendable But we cannot from thence infer That to have many Wives was sinful For where there is no Law there can be no transgression But in those times there was no such Law extant So also when God said whether by Adam or by Moses That this League of Matrimony was so sacred and strict that the Husband was obliged to separate himself from his Fathers house and together with his Wife plant another family It was no more than what was said to Pharaoh's daughter Psal 45.11 Forget also thine own people and thy Fathers house And although we may collect from this strong consignation how acceptable it would be to God that it should be perpetual yet it cannot from hence be evinced That even then it was commanded that this knot should not be Lib. 1. c. 14. de Abraham for any cause whatsoever dissolved St. Ambrose in the case of Polygamy distinguisheth that which God commends in Paradise from condemning the contrary But Christ forbids any man to separate those whom God by his first Institution did conjoyn making that a matter worthy of his new Law Grat. c. 33. q. 4. which he knew to be best for men and most acceptable to God Most Nations tolerated Divorce and Polygamy De moribus Germ. Herodian l. 2. Certain it is that most Nations in ancient times did both indulge unto themselves the liberty of Divorces and also of enjoying plurality of Wives Of all barbarous Nations the Germans were well nigh the only people recorded by Tacitus that were contented with one Wife But the Persian Indian and Thracian Histories do clearly testifie the lawfulness among them both of Polygamy and Divorces Amongst the Aegyptians their Priests only were restrained to one Wife And amongst the Grecians as Athenaeus tells us Cecrops was the first that allowed to one man but one Wife And yet that this was no long-liv'd practice among the Athenians we are taught by the example of Socrates and others And if haply any people did live more abstemiously as the Romans who never admitted of Bigamy nor in a long time of Divorces they were certainly highly to be commended in that they drew near unto that which was most perfect And yet will it not hence follow That they who did otherwise before the promulgation of the Christian Law did therein sin For as St. Augustine rightly observes * Contr. Faust lib. 22 c. 47. Every Nation hath its several qualites wherein they differ no less than in their peculiar Language which disagreeing conditions to govern aptly no one and the same Law can suffice The most high God permitted some things in the Israelites for the hardness of their hearts which were not consonant to the rules of perfection where therefore nature or custome have entertained a vicious yet not intolerable habit with so long and publick approbation that the opposite vertue would seem as uncouth as it would be to walk naked in England There may a wise and upright Law-giver conceal for a while his inward dislike till time make way for a more compleat Reformation Est aliquid prodire tenus si non detur ultra For want of discretion in this case the Kingdom of Congo in Africa was unhappily diverted from Christianity which it willingly at first embraced but afterwards with great Indignation rejected for no other reason See Rawl p. 293. See 2 Chron. 30.18 19. History of the Council of Trent p. 63. but because Plurality of Wives was I know not how necessarily but I am sure more contentiously than seasonably denied unto them For where a vice cannot be rooted out without the ruine of a state it is acceptable to God for a time to connive at it Quando mos erat crimen non erat Whilest it was a Custome it was no Crime at least not imputed as so X. What Marriages are justifiable by the Law of Nature Now let us see what Marriages are good by the Law of Nature To direct our judgements herein we must remember That not everything that is repugnant to the Law of Nature is made void by the Law of Nature As appears by things prodigally given away but those only wherein that principle is wanting which should give life and vigour to the act or in which all its effects are vitiated and tainted Now that principle which gives life to this and all other humane acts is that Right which we expounded to be a moral power or faculty to do it together with a will sufficiently declared But what Will may be sufficient to produce a Right we shall have occasion to declare more fully when we shall discourse of promises in general Whether the consent of Parents be requisite to a perfect Marriage by the Law of Nature But concerning this moral power the first question is Whether the consent of Parents be by the Law of Nature requisite to a perfect Marriage which some affirm But herein they are mistaken For all their Arguments do enforce no more than this That it is agreeable to the duty they owe to their Parents to crave their consents Which we shall easily grant them provided that the will of their Parents be not manifestly unjust For if Children be to reverence their Parents in all things surely they ought to do it most especially in such things wherein the whole Nation is concern'd as in Marriages And yet it cannot hence be inferred That a Son hath not a Moral Right to dispose of himself if they consent not For he that marries ought to be of mature age and judgement and he is to forsake his Fathers house so that he is herein exempted from his Fathers domestick discipline And becomes from thence 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Master of himself And although the duty of love and reverence do oblige him to ask the good will of his Parents yet doth not the breach of that duty null the act of his Marriage That the Romans and such other Nations did make void such Marriages was not from the Law of Nature but from the will of their Law-makers For by the same Law the mother to whom
Livy lib. 7. saith Livy to desert such II. Yet is it not alwayes convenient Neither is it prudence in a Governour to enter into a War always though upon a just ground for any particular Subject unless it may be done safely without endangering all or the greatest part of his Subjects For it is the Duty of a good Prince to prefer the safety of the whole before its parts and the greater the part is that he provideth for the nearer it draws to the nature of the whole III. Whether an innocent Subject may be delivered up to preserve the whole Wherefore in case the Enemy shall require any one person to be delivered to death though that person be innocent there is no question but that he may be forsaken if it clearly appear that the City is too weak to make resistance For as Nicephorus in Zonaras advised rightly concerning the delivering up of the Fugitives to the Bulgarian General to purchase their peace We judge it much better that a few men should perish than that so great a multitude should be destroyed Non malo unius domus Commune vinci sed nec aequari potest No one mans sufferings can equal be Unto a general calamitie When Alexander had destroyed Thebes he came to Athens threatning to destroy it Plut. vit Phocion unless Demosthenes Lycurgus and others who had highly exasperated the people against him were delivered vnto him Phocion thereupon being urged in the Senate to deliver his Opinion in that Case pointing to his dear friend Nicocles answered Eo in fortunii urbem nostram isti perduxerunt ut etiamsi hunc Nicoclem meum dedi Alexander poscat dedi jussurus sum Into such a desperate condition have these men brought this City that if Alexander had demanded my dearest friend Nicocles my Vote should have past for his delivery Yea and I should think my self happy might my life alone be accepted as a sacrifice to preserve it It is true Vasquius seems to be of a contrary judgment yet he that throughly weighs not so much his words as his intention and purpose may perceive that all he aims at is this only That such an innocent person is not rashly or easily to be delivered where there remains any hopes that he may be defended For he there brings in a story of a certain Band of Italian Foot whom he deservedly condemns for deserting Pompey before his Case was desperate upon Caesar's promise of safety and protection which he condemns and that not unworthily But whether an innocent Citizen may be delivered up into the enemies power to preserve his City from imminent ruine is much disputed now amongst the learned as it formerly was when Demosthenes invented that notable Apologue of the Wolves who were content to make peace with the sheep upon condition that their Dogs might be delivered up unto them Neither doth Vasquius only deny this but Sotus also whose Opinion Vasquius condemns as being too near a neighbour to treachery Yet Sotus was of Opinion that such a Citizen ought to deliver up himself which Vasquius denies being swayed by this reason because the nature of a Civil Society which was at the first entred into for mutual preservation doth not permit it But the force of this argument reacheth no farther than this That no Citizen is bound so to do by any right strictly taken but it argues not That if he do it he transgresseth the rules of Charity For there are many Duties which though not by the strict rules of Justice yet by the bonds of Charity we stand obliged to perform which are not only laudable being done as Vasquius acknowledgeth but which cannot be left undone without blame whereof this is one That every man prefers the safety of an innocent multitude before his own Know ye not saith Caiaphas the High Priest that it is better that is less evil that one man should die than that the whole Nation should perish For the destruction of no one Family can equal the destruction of the Universe A particular mischief is much more tolerable than a general calamity And therefore Phocion did wisely when he perswaded Demosthenes rather to undergo death himself than that for him his Native Countrey should be destroyed Diodor. lib. 17 which he urged upon him by the examples of the Daughters of Leus and of the Hyacinthides This was Cicero's resolution in the like case as appears by that Oration he made for P. Sextius If it should happen saith he that sailing in a ship with my friends and being therein assaulted by many Pyrats who peremptorily resolved to sink the ship unless I only were delivered up unto them I should chuse rather to cast my self into the sea to preserve my friends than endeavour to preserve mine own life with the danger of theirs And so in another place An honest and a prudent man observing the Laws and knowing the duties of a Civil Life De finib lib. 3. doth always prefer a general good before the advantage of any particular person though of himself Livy speaking of certain Molossians saith That he had often heard of men that willingly exposed themselves to death for the defence of their Countrey But these saith he are the first that ever I heard of that thought it fit that their Countrey should perish for themselves only But here also it may be questioned whether a Citizen though obliged in duty to do it may be compelled thereunto This Sotus denies by the example of a rich man that is bound by the bonds of mercy and charity to administer to the necessities of the poor yet cannot be compelled thereunto But we must here note that there is not the same reason for the parts compared between themselves as there is for the Superiors compared with those that are subject unto them for equals cannot compel one another unless it be to such things as are strictly due whereas it is in the power of Superiors as Superiors to enforce their inferiors to any virtuous act for the publick good So we read that the Lucans ordained a punishment against Prodigality the Macedonians against Ingratitude and the Athenians and Lucans both against Idleness As in a time of dearth any one Citizen may be enforced to produce his private store of Grain and to make it publick So in this case whatsoever Charity requires of us the Magistrate for a more universal good hath a power to enforce as Phocion would have delivered up his friend Nicocles had Alexander demanded him IV. War may justly be made for our confederates equal or unequal Next unto our own Subjects or rather equally to be defended are our Confederates whether they surrender themselves upon condition of protection or whether it be covenanted for mutual aid and assistance Qui non repellit injuriam à socio si potest tam est in vitio quam ille qui facit He that defends not his Associate when it is in his power is as
politick 377. not punishable for their Subjects crimes but for neglect of their own duty 393 394. their Oaths may strengthen their power not lessen their supremacy page 44 45 Kings vanquished what they had is the Conquerours 479. whether to be spared page 502 503 Kings warring for punishment bound to repair their Subjects loss page 420 Kings though conquered yet substituted under the Conquerour page 527 Kings should have a general care of humane Society page 388 The Contracts of Kings whether Laws and when page 177 The King a Minor Mad a Captive in whom the power to make Peace is page 544 A King not reigning by full Right his acts may be null'd by the Peoples Laws page 176 A King who pays not his Army is bound to satifie the wrongs done by it page 533 A King murthered nothing ensues but Blood and Slaughter page 65 A King may claim relief by the Laws against such private acts of his as are occasioned by fraud fear error and against extortion page 176 A good King respects what he ought to do not what he may do page 46 Kings of Persia absolute yet swear not to alter the Laws page 45 Kings falsifying their Oaths judged after death ibid. Kings of Israel punished beaten with Rods 47. in some cases had not Right to judge ibid. Kingly Government asserted by the Gospel page 18 Kingdoms absolute 38. mixt between Monarchy and Principality 47 48. Patrimonial if indivisible due to the eldest Son page 127 Kingdoms transfer'd by the People are inheritances yet separable from others nor lyable to Debts ibid. in what cases alienable not possest in full Right not alienable without the Peoples consent page 44. Kingdom and Principality promiscuously used page 41 Kingdoms transfer'd by the People if in doubt individual and to descend rather to Males than Females 128. more difficultly kept than conquered 526. how divided 143. some held during the Peoples pleasure 42. bounded some by natural some by artificial Bounds page 94 137 Kingdoms held by a Right usufructuary others by a full Right of Propriety and so alienable page 42 Kingdoms Patrimonial may descend to such as are nearest to the first King page 127 Kings absolute accountable to none 39. have a Right from God to command Subjects to obey 54. of Judah could not inflict capital Punishments but the Kings of Israel might unless in some cases page 63 Kings govern not only according to the Laws but the Laws themselves for the publick good page 38 39 Kings in their private concerns submit their cases to be judged by the Judges which they themselves make page 50 L. LAcedemonians prefer the Son born after the Father is King before him born before 132. they used more craft than force in their War 437. their custom concerning Lands taken page 410 Levinus his advice to the Roman Senate page 56 Lands taken in War are his that maintains it 472. when said to be gained 470. may be sold the measure named and yet not according to that measure page 137 Lands some divided and artificially fenced some assigned by measure and some arcifinious page 94 Lands if in doubt not judged arcifinious ibid. now found if prepossest no ground of War if drowned where presumed to be deserted page 137 Lands drowned naturally not lost ibid. gained by War several ways disposed yet always as the People ordered 472. recovered by Postliminy page 491 Humane Laws may ordain things preternatural but not things against nature page 81 89 A Lawmaker may take away the condemning power of the Law as to particular Acts or Persons page 376 377 Law what 4. of Nature what it is ibid. from whence Pref. v. in some sence the Law of God vi not alterable by God himself 5. distinguish'd into that which is so purely and that which is so for some certain States page 140 The Law of Moses taken in a twofold sence carnally and spiritually page 17 Law Ceremonial and Judicial when and how taken away 19. Mosaical hath neither first nor last page 110 The Law of Nature and Nations takes place where the Civil cannot be exercised page 368 The Law of Nature explained by those given by God Pref. vi The Law of Nature how proved and distinguished from others Pref. xiv nothing in the Old Law repugnant unto it xviii it hath sometimes some shew of change Pref. ix The Laws of Nature and Nations violated every Prince may make War page 384 Every man takes that to be the Law of Nature that it first imbibes page 385 The Law doth not always null what it for bids 37. of Tythes and the Sabbath how obliging Christians page 10 A Law implies every mans express conseâ—t 517. grounded upon presumption of a fact never done obligeth not page 152 153 The Laws of Holland for Lands drowned page 137 The Roman Law concerning such Contracts wherein the inequality is above half the value page 160 161 The Law in permitting a private man to kill a Thief whether it frees the conscience page 76 373 374 The Civil Law may forbid what naturally is Lawful page 81 The Law of Vsucapion whether it extends to the Supreme Power 101. or to its parts ibid. The universal reason of the Law particularly failing in any one fact the Law may be dispensed with page 153 377 How far a Law-maker obligeth himself page 377 c. Hebrew Laws forbidding Polygamy and Divorce page 105 106 What Laws oblige page 530 The Hebrew Laws Copies for Christians except in three Cases page 10 Laws and Contracts how they differ 178. not all obliging 178 179. common Agreements amongst the People 150 151. some very unjust page 121 Laws adjudging Criminals to death to be favourably interpreted 59. the Divine Laws judging to death have sometimes tacite exceptions ibid. Laws respect that which is generally profitable 56. some may be made decreeing when and how the Supreme shall be lost page 101 Laws concerning things promised oblige 152. judging to death the Relations of criminal Malefactors unjust page 403 Law Civil concerning the promises of Minors page 152 Laws pinnacle the hand Philosophy the mind 160. respect not small cheats and why ibid. diverse concerning buying and selling page 161 Law Divine voluntary how different from the Law of Nature 7. it obliged before it was written 8. Civil what 7. whence Pref. vii Ceremonial when abrogated and the Judicial when page 9 Laws given to the Jews oblige not Strangers 8. to the Mos cal Law the Israelites only stood obliged but to that of Circumcision all Abraham's Posterity page 9 Laws have two Parts directive to Kings and coercive to Subjects page 39 Laws given by God three times to Adam Noah Christ 8. the Old not useless by the coming of the New Pref. xviii Laws should command things possible 375. give testimony of their integrity page 430 Laws differ from counsels and how 3 4. and from permission and how page 4. A Law made against Murtherers by Force and Armes judgeth all
have Society naturally and why not seeing that Beasts with Beasts have the same And in another place he tells us That Nature hath instill'd into our minds the very seeds of Vertue This also M. Antoninus that Emperour who was so highly famed for his Philosophy thus testifies That we were born for Communion was long since apparent For Is it not plain saith he That Nature frames all things in order when we see the worser things made for the better and the better things one for another That therefore which Carneades affirms That every Creature is by Natural Instinct led to such things as are to it self only profitable if universally taken is not to be granted for some of the rest are content to abate somewhat of their own profit partly to their young ones and partly to others of their own kind The Proverb intimates as much when it saith Canis Caninam non est One Dog will not eat another And the Poet confirms it Tygers though fierce at Peace with Tygers are Juveral And every Beast will its own Kindred spare It was therefore Philo's advice Let men saith he Upon the Fifth Commandment learn Gratitude from Dumb Beasts The Dog will defend his Masters house that feeds him and oft-times will expose himself even to death for him upon the approach of any Danger that threatens him Is it not then the greatest of all shames that a Dog should be more thankful than a Man And that a Creature naturally Fierce and Ravenous should in Gratitude excell the Mildest and Meekest of all Creatures But if we scorn to learn our duty from Creatures Terrestrial let us yet observe the Nature of Birds those Aereal Travellers The Stork being Feeble through Age and not able to fly abroad rests in her Nest whilst her young ones travelling o're Sea and Land seek for Food for their aged Parents who being worn and spent with Age and Travel deservedly enjoy ease plenty of necessaries nay of delicates whereas their young ones comfort themselves with this That they have conscientiously performed that duty which Piety exacted from them together with an expectation of the like to be paid unto them hereafter when they also shall grow old and through age feeble Thus do they in due time discharge a necessary debt by restoring that to their Parents in their old Age which in their Infancy they received from them Now from whence think ye do they learn this duty of fostering their young but from Nature being in the same manner fostered themselves when they are young And how can they hear this saith Philo and not hide their heads for shame that take no care of their aged Parents but wilfully neglect them whom either alone or before all others they ought to sustain Especially considering that in so doing they cannot be said properly to give but only to repay what they owe them For Children have nothing of their own but what they derive from their Parents who either gave it them out of what was theirs or by some means or other enabled them to get it Whence this proceeds Now in Beasts this care of their young proceeds as I conceive from some Extrinsick Intelligent Principle Because as to other Acts not more difficult than these the same Intelligence doth not appear in them The like may be said of Infants In whom as Plutarch well observes there is a Natural Propensity to do good unto others even before they are capable of Instruction and whom Nature it self teacheth to be Compassionate Man only hath the faculty of Speech But in a man of perfect Age when knowingly he doth the same in like cases having withal an exceeding great desire after Society whereof he alone of all other Creatures hath the proper Organ I mean Speech In him I say it is fit that we should admit a Faculty of knowing and doing things according to some General Rules And of knowledge by General Rules whereunto whatsoever is agreeable is not so to all living creatures but peculiarly to mankind only Homo ad id natus est Lib. 9. bene ut aliis faciat c. Man saith M. Antoninus was born for this end to do good unto others And again Sooner may we find Bodies Terrestrial not tending to the Earth than a sound and perfect man not affecting the society of men For as he speaks in another place Quod ratione utitur necessario Coetum appetit Whatsoever hath the Faculty of Reason must necessarily affect Society To the same purpose is that also of Nicetas Coniates Lib. 10. Nature her self hath insculpt and ingenerated in us See Aug. de Doctr. Christ lib. 3. c. 14. a mind easily consenting and agreeing with those of our own kind Neither can I here omit that excellent saying of Seneca That thou maist understand how desiderable a thing of it self it is to have a thankful mind and how odious a thing Ingratitude is Know that there is nothing sooner dissolves and disjoints Humane Society than this Vice of Unthankfulness For wherein otherwise consists our security if not in those mutual good offices that we do one to another by which Commerce and Exchange of Courtesies only our lives are strongly guarded and fortified against all violent Incursions whatsoever Take us singly and what are we but a prey to all other creatures and as so many sacrifices to appease the hunger or rage of ravenous beasts No Blood so vile none so easily purchased as ours All other creatures are sufficiently guarded against all violence Whatsoever is born wild and unsociable comes into the world armed only man comes naked and infirm having neither Hoofs Horns Claws nor Teeth to make him to appear terrible to the rest only two things Nature hath given him whereby both to offend others and to defend himself namely Reason and Society By these he that being single is weakest of all becomes Lord and Master of all It is Society that gives him the dominion over all other creatures it is Society that transfers Empire from one Nation to another extending it self over the Seas also it is this that mitigates the violence of Diseases it is this that yields Comfort to old age this asswageth grief and pain this makes us strong valiant nay invincible For as much as we may lawfully crave its assistance even against Fortune her self Take away this and you break asunder that Unity that there is between mankind whereby our lives are sustained And it is certainly taken away if Ingratitude be not in it self odious Thus far Seneca Now this very conservation of Society Concerning the great care that Doves have over their young see Porphyâ—y de non esu l. 3. Society the foundation of Law 1. Of Nature strictly taken as it is agreeable to humane understanding though but crudely here exprest is the foundation of that which is properly called Right From whence ariseth our abstinence from that which is anothers and our
signifies the removal of impediments only I shall not here meddle with is either full and perfect which gives us a right to do somethings altogether lawfully or less full and imperfect which gives us only an impunity with men and a Right that no man shall give us any lawful lett or impediment in the doing of it Concerning the former of these the same may be said as is of positive precepts namely That what the Law thus permits cannot be contrary to the Law of Nature but of what is permitted in the latter sense Vid. Chrysâ—â—t ad 7 ad Rom. jaxta finem the case may be otherwise but this collection takes place very rarâ—ly Because where the words permitting are ambiguous it is much more convenient for us to judge of whether of these two Permissions it is to be understood by the Law of Nature Christian Princes may frame their Laws according to those of Moses unless in three cases than by arguing from the manner of the permission to proceed to judge of the Law of Nature In the next place Soveraign Princes being Christians may from hence learn to form their Laws according to those given by Moses unless it appear that those Laws were such as did wholly relate either to the coming of Christ or to the Evangelical Law not then revealed or that such Laws are contrary to what Christ did either in general or particularly command For excepting these three cases no other can be imagined why what Moses commanded shall now be unlawful Again we may hence learn that whatsoever was enjoyned by Moses which may serve to the improvement of those vertues which Christ exacted from his Disciples ought now to be as strictly if not more observed by us than heretofore it was by them The reason whereof is this because what vertues soever Christ requires of us as humility patience love c. are to be performed in an higher degree than they were under the state of the Jewish Law And not without good reason because of those Celestial promises that are held forth unto us in the Gospel which are more clear than under the Law De Pudicitia Our Christian liberty saith Tertullian is no way injurious unto innocency for the whole Law as to piety truth constancy chastity justice De Virginitate 94. On the first of St. Mat. mercy benevolence and modesty stands yet unrepealed Nay a larger proportion of these saith Chrysostome is expected from us because the graces of the spirit are more plentifully poured down upon us than they were upon them Athanasius also tells us That Christ makes the precepts of the Law to be of a larger extent than Moses did For Moses said only Thou shalt not kill but Christ saith Thou shalt not be angry unadvisedly Moses said Thou shalt not commit Adultery but Christ saith Thou shalt not look to lust after a woman Heb. 7.19.8.4 Rom. 1â— 5 Gal. 3 25. And therefore the Old Law in comparison to the New is said to be weak and not without blemish And Christ is said to be the end of the Law But the Law our School Mistriss or our guide to lead us unto Christ Gal. 3.25 So the Law of the Sabbath and that of Tithes do oblige us Christians not to yield a lesser proportion of time for the worship of God than a seventh day nor a lesser proportion of the fruits of the Earth for the Priests Alimony and other the like sacred uses than the tenth part CHAP. II. Whether it be lawful at any time to make War I. That to make War is not repugnant to the Law of Nature proved by reason II. By Histories III. By consent IV. That it is not repugnant to the Law of Nations V. That the voluntary Divine Law before Christ was not against it proved and the objections to the contrary answered VI. Certain precautions concerning this question whether War be repugnant to the Law of the Gospel VII Arguments for the negative opinion out of the holy Scriptures VIII The arguments out of Scripture for the Affirmative answered XI The consent of the primitive Christians concerning this examined I. The Law of Nature is not against it HAving thus taken a view of the springs from whence all Rights flow let us now begin with the most general Question Whether any War be just or whether it be lawful at any time to make War But this very question with others that follow are to be dscust in the first place by the Law of Nature Cicero in several places very learnedly proves out of the books of some Stoicks That there are some principles instill'd into us by Nature her helf as soon as we are born as to love our selves and to hold nothing dearer unto us than our selves and in order to the conservation of that being that she hath given us to love and rejoyce in those things which conduce to the safety of the whole body and of every member thereof and to abhor those things that tend to its destruction Hence it comes that there is no man but being left to his own choice had rather that all his members should be proportionable and entire than by use broken or crooked Therefore our first duty according to Natures instinct is to desire those things most that are most agreeable to our own Nature and to avoid those that are destructive unto it But these things thus known and reason beginning to sprout forth from her latent seeds then our second duty is to follow such things as are agreeable to reason it self which is ever more to be preferred before those that are convenient to the body and consequently to embrace those things that accord with justice and honesty rather than those whereunto we are led by sense and appetite because the Principles of our Nature do chiefly commend us to right reason as to our best guide and protectrix For as Nature in all other things never produceth her best and choicest fruits until she arrives at maturity Right reason is Natures best guide Sen. Ep. 124. Ep. 76.121.128 so neither doth humane nature her self produce her best operations until reason grows up to perfection And therefore should Reason it self be much dearer unto us than those things whereby we arrive unto it Now these things being undeniably true and without any farther demonstration by all men of sound judgment granted it follows that in examining the Law of Nature we find out what is agreeable to those beginnings or first principles of Nature and then that we proceed to that which though in order of time later yet is much more worthy to be followed and that not as accepted only if it may be granted but as that which by all means is to be required Moreover that which we call honest according to the diversity of the matter is sometimes taken strictly Honesty considered two waies strictly as in a point or largely For whatsoever may be commendably done and yet may
si alitus sit ferendus est Either not to nourish a Lion or being nourisht not to provoke him It is indeed a very difficult case and will admit of a strong debate Whether Peace or liberty be most acceptable Whether Peace or Liberty be most eligible Cicero makes this question the most difficult of all others in the Politicks to be resolved Whether our Countrey being opprest by Tyranny we may attempt to redeem it although with the danger of its desolation But it is not for private men to determine what the Common Judgement of the people would be in this case but this we abominate as being grosly unjust to make our Countries Liberty a cloak for our own Ambition and to pretend to deliver her when we intend to inslave her Sylla being demanded App. Civit. 1. Why he marcht into his own Countrey so strongly Armed answered Vt eam à Tyrannis liberem To deliver it from Tyrants When he that pretended so to do was himself the greatest Tyrant Plut. Catent Major So Antiochus brought a Mighty Army into Greece alledging that he came to set Greece at Liberty when indeed it wanted none His pretence was Liberty but his Intent Tyranny Crudelitatem Damnat crudelitatem init By condemning Tyranny he trapans them into it Cicero Ep. Fam. l. 1. No alterations of Government without violent commotions It was much better Counsel that Plato gave to Perdiccas which Plato thus renders That he should attempt no more in the Common-wealth than he could justifie to his Subjects For that nothing savouring of force or violence should be obtruded upon either our Parents or our Countrey To the same sense is that of Salust Though thou couldst govern thy Countrey or thy Parents by force and correct at thy pleasure every small offence yet would it seem harsh and troublesome especially considering that no violent thing can be permanent Bello Jug nor any Mutations of Government without violent Commotions War Rapine and such like acts of hostility Not much different from this is that of Statius in Plutarch Vita Brut. It becomes not a wise or a prudent man to endanger himself in Popular Tumults amongst either Fools or Knaves Whereunto we may also not impertinently refer that of St. Ambrose To deliver the poor from oppression so it be without raising Tumults or Sedition is commendable This also will highly advance thy Credit and Reputation if thou canst rescue the poor out of the hands of the Oppressors and deliver him that is wrongfully condemned to dye so that thou do it without raising Tumults or moving Sedition Lest otherwise thou shouldst seem to do it rather out of an affectation of Popularity and Vain glory than out of Pity and Commiseration and so consequently make those wounds deeper which thou shouldest heal It was the opinion of Aquinas That the pulling down of Government though Tyrannical was sometimes Seditious Neither are we much moved to the contrary by that fact of Ehud to Eglon King of the Moabites For the Scriptures plainly tell us Judg. 3.15 That God raised up Ehud to deliver Israel What Ehud did was done by the special Warrant of God himself Neither doth it appear That this King of the Moabites had by Agreement no right of Soveraignty Nehem. 9.27 For God we read did execute his Judgements even against other Kings by such Instruments as he himself was pleased to raise up to that purpose as may be collected by Jehu against Joram 2 Kin. 9. XX. No private man to be Judge in this case But it is especially to be noted That no private person ought to determine Controversies of this nature but should rather obey the present possessor As Christ commanded to pay Tribute to Caesar †Mat. 22.20 because his Image made the Money currant which was a convincing argument that he was in full possession of the Empire at that time For the Coining of Money was ever the most certain sign of the Possession of the Empire CHAP. V. Who may lawfully make War I. The Efficient Causes of War are either the Principals in their own cause II. Or in the Cause of another III. Or Instrumental as Servants and Subjects IV. By the Law of Nature none are prohibited from War I. The principal efficient Cause AS in all other things so in Actions that are voluntary there are three sorts of Causes efficient that is to say Principal Auxiliary and Instrumental The Principal efficient cause in a War is for the most part he whose the quarrel is In a private War any private person In a publick he that hath the publick Power especially if it be Supreme Whether a War may be justly undertaken in the behalf of another not making War shall be discust hereafter In the mean time this is most certain That naturally every man hath a Right to revenge his own quarrel and for this cause were hands given unto us II. Auxiliary Neither have we a Right to vindicate our own quarrels only but we may both lawfully and laudably improve our Right to the vindication of other mens also They that treat of Offices say truly Nihil utilius homini homine altero That there is nothing so usuful and profitable unto man as another man There are several obligations wherein we stand bound to one another for mutual help and assistance For kinsmen do usually combine to help one another So one Neighbour being opprest invokes the help of another So also do Citizens the aid of their fellow-Citizens Aristotle thought it a duty incumbent to every man to assume Arms either to defend himself in case an injury were offered him or to assist his Kinsmen his Benefactors or his Companions in cases of oppression And in Solon's esteem That was the best Common-wealth wherein every man was as sensible of Injuries offered to another It was well said of Menander as if they had been offered to themselves â—â—juriarum si Improbis Auctoribus Reponeremus ultionem singuli Nâ—bâ— puâ—antes fieri quod sit alteri Inter nos juncti Conspiratis viribus Non praevaleret Innocentiae Impetus Audax Malorum Qui custoditi undique Jussique poenas quas merentur peâ—â—â—e Aut nulli penitus essent aut paâ—ci admodum Hence is that of Plautus Praetorquete Injuriae prius Collum quam ad vos perveniat Break the Neck of an Injury before it comes at us But though all other obligations should fail yet it is sufficient that we are linkt together in the common stock of humanity For ab homine nihil humani alienum Nothing that is incident to humane nature should be to any man strange Democritus tells us That it is a duty incumbent upon every man so far as he is able to succour all that are oppressed with wrong and not at all to neglect it For this saith he is both just and honest Which Lactantius thus expresseth God saith he who denyed to all
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
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
we have pawn'd our Faith to commit a Sin the best way to preserve our Faith is to break our Promise For that is not properly called Faith that engages us to do wickedly Wherefore take the Advice of Isidore In malis Promissis rescinde Fidem Gratian. in turpi voto muta decretum impia est Promissio quae scelere impletur Make no scruple of breaking that Oath that would bind thee to a dishonest or unjust action for that Promise must needs be wicked that cannot be fulfilled but by making thee wicked VII Nor that impede a greater moral good Yea though that which is promised upon Oath be not unlawful yet if it cannot be performed without the omission of something that is a greater moral good it loseth its binding faculty For we owe unto God our growth in goodness and we cannot abridge our selves of this liberty without sinning against him Some there are saith Philo of so harsh and unsociable a nature either as bearing hatred to all mankind or so enslaved to their own inordinate passions that they even strengthen themselves in their churlish humours by rash and inconsiderate Vows as namely That they will never admit such a man either to bed or board or that they will never do such a man good nor ever receive any thing from him till death St. Augustine being consulted with about one Hubaldus who to save his own life being threatened had bound himself by Oath to marry his own Concubine and to thrust his own Mother and Brethren out of doors and never to relieve them gives this resolution of the Case That as to his marriage with his Concubine whom he had long enjoyed his Oath was binding for that was no sin But as to his not relieving his Mother and Brethren it could not bind him For Qui non alit necat To deny them necessaries was no better than to kill them And no Oath can oblige to a sin so unnatural The Error of the Jews concerning Oaths See Godw. Jewish Ant. pag. 274. Such a kind of Oath was called among the Jews an Oath concerning beneficence or doing good The form whereof we have set down Mat. 15.5 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 That is By the gift upon the Altar thou shalt never receive any good from me Which Oath was always to be so understood as if some direful Execration were at the tail of it As So do God to me and more also if thou ever receive any good from me which Oath was among the Jews thought to be the most binding of any yea though it were against our own Parents Such corrupt Interpreters of the Law of God were the Jewish Doctors in those superstitious times Which Christ there confutes making no distinction between honouring our parents and relieving them as appears by comparing that of Matthew with the like in Mark and with 1 Tim. 5.3 17. and Numb 23.11 Yea though it be not made against our Parents but against others yet doth it not bind because it is a duty we owe unto God to do good unto all men which is altogether inconsistent with such an Oath VIII Nor to impossibilities To things manifestly impossible no Oath can oblige us IX If the impossibility be only for the present how the Oath obligeth But as to things that are for a certain time impossible or supposed at present to be so the obligatory power of that Oath hangs in suspense insomuch that he that swears suppositively ought to endeavour as far as in him lies to make that which he hath sworn possible X. The form of Oaths The forms of Oaths may be different but the substance of all are alike For all invoke God as a Witness or as an Avenger both which in him are one and the same For in calling him to Witness who hath a Power and a Right to punish we do but bespeak him to a Revenge due to our Perfidiousness And he that is omniscient is therefore an Avenger because a Witness What is to swear saith Ambrose to the Emperour Valentinian but to acknowledge that Divine Power which thou invokest to witness and defend thy truth Every Oath saith Plutarch ends in some Curse in case we Swear falsely Quaest Rom. And therefore the ancient forms of making and swearing Leagues was usually by killing of Sacrifices as appears Gen. 15.9 c. and by that of the Romans in Livy Tu Jupiter ita illum ferito ut ego hunc porcum And do thou O Jupiter destroy him that breaketh this league as I do this Hogg And in another place the Priest killing a Lamb Prays the Gods to kill him that violates that Oath as he doth that Lamb. So in Polybius and Festus we read If I knowingly deceive let God cast me away from him as I do this Stone XI Oaths not by God only but by others also in relation to God oblige It was the custom of the Ancients not only to swear by God but by other both things and persons thereby either wishing those creatures might be noxious unto them in case they sware falsely as when they sware by the Sun the Moon the Heavens the Earth c. or wishing they might be punished in them as when they sware by their Head by their Lives by their Children by their Prince c. Neither did the prophane and barbarous people only swear thus but the Jews themselves Philo the Jew among his Special Laws tells us That it is not fit for us upon every slight occasion to have recourse to the Creator and Preserver of all things And Homer's Interpreters do testifie the same of the ancient Grecians that they were not easily induced to swear by God Oaths by the Creatures oblige but by other things that were present as by the Scepter c. Thus Apollonius testifies of Socrates That he sware by such things Non ut per Deos sed ne per Deos Not as by Gods but lest he should swear by the Gods And this custom as Porphyry records was introduced by that Prince who was so famous for his Justice King Rhadamanth So did Joseph according to the custom of that Nation among whom he lived swear by the Life of Pharaoh Elisha by the Life of Elias and the Shunamite by the Life of Elisha 2 King 4.30 Cant. 2.7 Mat. 5. Neither doth our Saviour as some think declare such Oaths to be less lawful or less binding than those whereby God himself was invoked But observing that the Jews did not so regard such Oaths in an opinion haply not unlike to his who said Sceptrum non putat esse Deos That he did not believe the Scepter to be the Gods He shews that even these are true Oaths See Wisd 14.20 and as binding as those that are made in the name of the true God It was very well said of Vlpian He that swears by his own safety seems to swear by God because he hath respect to some Divine power that preserves
as they are a Nation and all Kings as they are Kings should sympathize with their Neighbour Nations and Kings that are oppressed Neither is every person more bound to defend his own members than Princes are in obedience to Christ to defend each other with that power which he hath given them But this duty neither Kings nor People can well perform whilst Christendom is invaded by the Enemies of Christ unless they do mutually assist each other which can never be done successfully unless they strongly confederate together for that end And such a General League between Christian Princes hath heretofore been made whereof the Roman Emperor was by general consent chosen General whereby all Christians were obliged to contribute either Men or Mony according to their power as to the defence of Religion which is or ought to be the common cause for the neglect whereof I cannot see how any people can plead excuse unless it be such as are engaged in an inevitable War or afflicted with some other general calamity at home XIII If our Confederates are ingaged in several Wars which we ought to assist Another Question doth often arise namely in case two Nations are engaged in War one against the other and both are our Confederates whether of them we are bound to help Where in the first place we must remember what we have already said that ad Bella injusta nulla est obligatio No League can bind us to a War that is unjust He therefore is to be preferred that hath the juster cause if the War be against a stranger Prince yea if it be against another Confederate The words of him that swears Fealty to another are these Si scivero velle te aliquem juste offendere inde generaliter aut specialiter fuero requisitus meum tibi sicut potero praestabo auxilium If I shall understand See Book 3. chap. 25. §. 4. that thou wilt make an offensive War against any man upon a just ground and that I am either generally or specially required to give thee mine assistance I shall do it to my utmost power Thus Demosthenes in his Oration concerning Megalopolis The Athenians are bound by their League to aid the Messenians their Confederates against the Lacedaemonians their Confederates if the Lacedaemonians were the first Aggressors which holds true unless in our Articles it shall be expresly forbidden to send out any aid against such a Confederate Polyb. l. 6. In that Agreement which Hannibal made with the Macedonians there is this Clause Hostes erimus hostium exceptis Regibus Civitatibus c. Quibuscum foedus nobis amicitia est Enemies we shall be to thine Enemies except only such as are in League and Amity with us If two Nations be at War and both our Confederates and neither of them have a just cause which may so happen we are to stand Neuters and to assist neither So Aristides If either of our Confederates had required our aid against strangers it had been readily granted but if against one another we desire to stand Neuters Leuctrica If both our Confederates be engaged in a just War against strangers and both send for Aid if we are able we must send to both either Men or Money But if a Prince shall be required by both to aid them in his own person having so promised then because his person cannot be divided it is but reasonable that he should prefer him with whom he hath contracted the ancienter League As the Epirots answered the Lacedaemonians in Polybius The like answer was given to the Campanes by the Roman Consuls In contracting friends it is fit that we take care that the new do not supplant the old The Ancienter the Leagues are the more Inviolable Thus Ptolomy answered the Athenians in the like case Amicis ferenda Auxilia contra hostes non contra amicos We are to aid our Friends against Enemies but not against our Friends Which also will admit of this exception unless the latter League do bind us farther than our bare promise for it may include a translation of the Government and imply somewhat of subjection And thus we say that in selling of Goods the first sale is the best unless the latter shall also transfer the property and dominion So Livy of the Nepesines That the faith given upon their surrender bound them faster Deditionis quam societatis fides sanctior than that given by former Leagues as to their Associates Some there are that do more nicely distinguish between these But what I have said I take to draw nearest as to simplicity so also to truth XIV When renewed A League for a certain time prefixt is not easily presumed to be renewed through silence unless such acts intervene which cannot otherwise be understood for a new obligation is not easily to be presumed XV. The League is void if either party break it If either party violate the League the other party is freed because each Article of the League hath the force and vertue of a Condition Thus Thucydides determines it They saith he are not the first breakers of the League who being deserted seek for aid to others but they that perform not by their deeds what they have promised to do upon their Oaths And in another place Si vel tantillum ex dictis pars alterutra transgrederetur rupta sunt pacta If either party shall transgress the Articles they have sworn unto never so little the League is broken This also is true unless it be otherwise provided by the League as it usually is lest what is seriously debated and solemnly sworn should be adjudged to be broken upon every rash offence XVI How far Generals engaging are bound if the Prince refuse Sponsions are such promises or undertakings as Generals make without the consent of their Soveraign for the performance whereof they engage themselves or give hostages till it be confirmed by their Prince or Senate The subject matters whereof are as diverse as of Leagues They differ from Leagues in the dignity of those that make them Concerning these Engagements two Doubts usually arise The first is If the matter engaged for be refused by the King or State how far forth are the parties engaged bound Whether to make up what the King or State shall not think fit to grant or to restore all things to the same state and condition as they were in before such agreement was made or to deliver up their own bodies and the hostages to the Will of the Enemy The first whereof is most agreeable to the Civil Law of the Romans The second to Equity and Reason which we find urged by the Tribunes of the people in the Caudine Controversie The third is most approved of by Use and Custome as appears by the examples of the two notable Sponsions made at Caudis and Numantia But by no means may we admit The Sponsions made at Caudis and Numantia that either the King or
when they perceive one of their own kind dead they carry him away that he may not be devoured by Beasts The like doth Virgil record of Bees Tum corpora luce carentum Exportant tectis tristia Funera ducunt And when the Fogs of Death have clos'd their Eyes Their Dead th' attend with pompous Exequies Some are of opinion That the first hopes of a Resurrection were by our first Parents consigned to their Posterity by this Emblem of Sepulture So Pliny testifies of Democritus that he taught That mens Bodies were deposited in the Earth expecting the accomplishment of a promised Resurrection But Christians do often refer this Custome of their decent Interment of their Dead to their hopes of a future Resurrection So saith Prudentius Quidnam sibi saxa cavata Quid pulchra volunt Monumenta Nisi quod res creditur illis Non mortua sed data somno What means this Stately Tomb These Solemn Obsequies Surely what 's in its Womb Not dead but sleeping lies But the most plain and obvious reason why Burial was introduced is because Man being of all other creatures the noblest it would seem a thing very unworthy to suffer his dead body to be torn and devoured by Beasts Therefore was Burial invented that this Indecency might as far as in him lies be avoided This is the reason given by Quintilian in commiseration of mankind Decl. 6. we preserve their Bodies from the incursions of Birds and Beasts So Cicero in his first Book of Invention Being torn by Wild Beasts he wanted in his Death the common Honour of Burial And God himself threatens some wicked Kings by his Prophets 1 King 14.11 That they should be Buried with the Burial of an Ass and that the Dogs should lick their Blood Jer. 22. Neither doth Lactantius give any other reason for Burials than this We cannot suffer saith he the Image of God to lye as a prey to Fowls and Beasts Nor doth St. Ambrose Lib. 6. whose words sound thus Nothing is more excellent than to do this office for him who cannot requite it To defend his Body from the Beasts and from the Fowls who is thy Companion in Nature But admit there were no such injuries to be feared yet to suffer an humane Body to be cut and torn in pieces is far beneath the dignity of humane Nature Not much different from this is that of Sopater To bury the dead is a very decent thing instituted by Nature it self lest the Bodies of men after death being naked should be exposed to shame and reproach And they that indulge this Honour to the Bodies of the Dead perform an office acceptable unto all whether Gods or Semi-Gods For it is not congruous to Reason That the Secrets of Humane Nature should after Death be exposed to publick view And therefore hath Antiquity traduced this Custome of burying the Bodies of the Dead down even unto us Ut Monumento condita clam procul à conspectu tabescant That being deposited in their Sepulchres they may rot and moulder away secretly and invisibly The like Reason is given by Gregory Nyssen We bury the Dead that so what is the shame of Humane Nature may not lye exposed to the Sun Neither is this duty of Interring the Dead due to the person of any man but to Humane Nature it self And therefore it ought not to be envied to any whether publick enemies or private As to private enemies notable is that contest in Sophocles concerning the burying of Ajax where Vlysses thus bespeaks Menelaus After so many things th' hast wisely said Take heed O Menelau ' wrong not the Dead The Reason whereof is given by Euripides thus Antigone To Mortal Men death is the end of strife For what can Rage do to him that hath no Life So the same Author in another of his Tragedies Supplicibus If by these Argives ye were injured It is revenge enough to see them dead And Virgil ' Gainst Vanquished and Dead no War is made Which Verse being quoted by the Author to Herennius he adds For that which is the last and greatest of Evils is already befallen them With whom agrees Papinius Bellavimus esto Sed cecidere odia tristes mors obruit iras At War we were it is confest But all hate 's past when wrath 's by Death supprest The same reason is given by Optatus Milevitanus Though your wrath were implacable whilest your Enemy lived yet he being dead that hatred should be appeased For he is now silent who haply was before litigious III. It is due to publick Enemies Wherefore it is by all confest That this is a duty that we owe not to our private only but our publick Enemies This Right saith Appian is common in all War It is the usual Traffick and Commerce of War as Philo observes So also Tacitus Our very Enemies do not envy us Graves This also Dion Chrysostome assures us That this Right is granted even to Enemies in War though their hatreds before were irreconcileable Lucan also treating on this Subject saith That Funeral Rites were observed even among Foes Thus also doth Philo Philo. plead against Flaccus Even to those who are slain in War do men usually grant Burial They that abound in Goodness and Humanity will do it at their own charge and others that extend their hatred even beyond death will yet under some conditions deliver their Bodies that they may not be deprived of the last Honour that the Custome of Nations hath decreed unto them For what War saith Sopater can be so barbarous as to rob mankind of its last Honour What enmity can protract the remembrance of injuries done so long as to violate a Law so universally binding Orat. de Lege Whereunto we may add that of Dion Chrysostome For by this Law saith he no man can reckon the Dead amongst the number of his Enemies nor doth any man extend his hatred and his reproaches to the Bodies of the slain Examples whereof we may find in every Author Hercules we read buried his Enemies Bodies Alexander those whom he had slain at Issus Hannibal sought out the Bodies of Caj Flaminius P. Aemilius Tiberius Gracchus and M. Marcellus being Romans and gave them Honourable Funerals The very same did the Romans to Hanno the Carthaginian The like did Pompey to Mithridates Demetrius to many of his Enemies and M. Anthony to King Archelaus In the War which the Grecians made against the Persians the Grecians bound themselves by an Oath made in this Form Socios omnes sepeliam bello victor etiam barbaros All my fellow Souldiers I will Bury and if I remain Conquerour in Battle even the Barbarians And every where in Histories we read of leave given to carry away their dead See Lib. 3. c. 20. §. 45. An Example we have in Pausanias of the Athenians who buried the Bodies of their Enemies the Medes and the Reason is added Quia
the Sabbath was instituted whereon he imprinted such an indelible Character of Holiness That it is more indispensable than any other Right whatsoever For if a man did eat of meats forbidden or transgressed in any other case his punishment was left as arbitrary to the Judges but he that violated this Right was peremptorily to die the death because he seemed thereby to renounce his belief of the Worlds Creation Abnegationem Mundi à Deo creati continebat Sabbathi violatio For as he that wrote the Answers to the Orthodox very well observes God did therefore give a greater honour to the seventh number than to the rest Ad Quaest 69. that so the memory of the Worlds Creation might be preserved Now the Creation of the World doth tacitly declare both the Goodness of God his Wisdom his Eternity and his Omnipotency from which contemplative Notions these practical Duties will easily follow That God is to be Honoured Loved Worshipped and Obeyed wherefore Aristotle concludes Top. 1.9 That he that denies that God is to be honoured or Parents reverenced That there is a Creator prov'd by the nature of the Creatures is not to be convinced by arguments but by punishments To demonstrate the truth of these contemplative Notions of God we may draw arguments from the Nature of the Things Created amongst which the most forcible is this That some things are made is manifest to our sense but these things that are made if we will trace them up in their direct series will certainly at length bring us to something that was not made which must needs be Eternal and that is God but for those that are not able to comprehend the strength of this argument it may suffice to know That these contemplative notions of God have been assented unto in all ages and in all places some few only excepted and by all persons as well gentle as simple as well by those who have been too simple and ignorant to deceive others as by those who have been too wise to be deceived by others which universal consent Universal consent among such variety of other Laws and opinions doth evidently witness That this truth was delivered unto us from our first parents and was never yet solidly confuted and even this alone had we no other ground to ascertain our perswasion was enough Philo argues this case thus De unius imperio Nothing made by art can come by chance but the worlds composure is done with exquisite art therefore it must needs be made by one that is the most perfect of all Artists and that is God And hereby ariseth this first perswasion That there is a God Thus likewise Tertullian argues against Marcion The first knowledge of God we derive from nature the next by doctrine that from nature we learn by his works that by doctrine from preaching whereupon Cyprian in his Book concerning the vanity of Idols concludes thus Haec est summa delicti nolle agnoscere quod ignorare non possis This is the heighth of wickedness that thou wilt not acknowledge him as God whom thou canst not deny to be so We are all of us though untaught naturally perswaded that there is a God saith Julian to Heraclitus unto whom we look unto whom we run and towards whom I believe our souls do as naturally turn as our eyes to the light or as the needle to the North. Thus doth Dion Prusiensis ground his belief that there is a God first upon natural reason and then upon universal tradition De coelo l. 3. De leg 10. And Plutarch calls it 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 An ancient perswasion than which nothing can be more certain For as Aristotle saith All men have naturally some perswasion that there is a God Of the same opinion was Plato Now to detract from the authority of so many and so great witnesses is not simply ignorance but a pertinacious madness XLVI They that contradict these may be punished Wherefore they are not without sin who because they are not so quick-witted as either to assert these notions by arguments of their own or to understand those framed by others do wilfully reject them since they do both guide us unto that which is honest and the different opinion is not built but upon a very sandy foundation But because we are now treating of Punishments and those only humane we must here distinguish between these notions themselves and the manner of dissenting from them These notions that there is a God one or more I here dispute not and that he takes care of humane affairs as they are most generally received so are they to the establishment of Religion whether true or false Heb. 11.6 most necessary He that cometh to God saith the Authour to the Hebrews that is He that is religious for Religion amongst them is called an access unto God must believe that God is and that he dispenseth rewards to those that serve him There hath ever been and now are saith Cicero some Philosophers who hold that God hath no regard to the affairs of men which if true Quae potest esse pietas quae sanctitas quae religio saith he What piety can there be what holiness what religion This saith Epictetus is the principal office of piety to have a reverent esteem of the Gods as namely that they are and that they dispose of all things with justice and righteousness Lib. 2. c. 31. Aelian professeth that he never found any Nation no not amongst the Barbarians which did wholly Apostatize unto Atheism but that all of them did acknowledge some Divine Power that took care of them The first part of Divine worship Ep. 95. saith Seneca is to believe that there are Gods and then to ascribe unto them all majesty and acknowledge their goodness without which there can be no majesty Plutarch in his vulgar conceptions saith That if we take away providence we darken that small light that we have of God For saith he we are to conceive of God not only as he is immortal and in himself most blessed but as he is most affectionate to mankind ever watching over us to do us good For otherwise if he will do us neither good nor hurt saith Lactantius to what end do we worship him And indeed if we look only at the influence which these notions should have upon mens manners it is all one to deny that there is a God and to deny that he hath any respect to humane affairs wherefore that in almost all Nations that are to us known and throughout all ages these two notions should be thus maintained is not arbitrary but purely necessary Seneca in his 117 Epistle Sen. Epist 117. pleads thus That there are Gods amongst other things we may hence conclude that nature herself seems to have insculpt this opinion in every man neither is there any Nation in the World so desperately wicked as not to believe that there are
doth not declare his knowledge to the right Owner is guilty So also St Chrysostome Not only the perjured persons but they that knowing of it De Statuis 14. conceal the perjury are guilty They that contribute their counsel and advice for so runs the Attick Law He that gives his counsel to an act that is wicked is involved in the same punishment with him that doth it They that countenance encourage or commend a Malefactor so St Chrysostome Pejor peccante qui peccatum laudat He that praiseth and applauds a wicked act is more wicked than he that effects it And by the Law of the Lombards Qui facinorosum astans hortatur pro faciente habetur The By-stander that encourageth a Malefactor is equally to be punished with him They who having full power and authority to forbid and restrain Offenders do it not So thought St. Chrysostome Not they only that commit the theft but they also that did not hinder the commission of it when it was in their power to do it are in the same manner to be punished Just as he who hinders a wounded person from being cured is as guilty as he that wounds him even unto death So they who being strictly bound in Duty to help those that are oppressed and do it not And they who do not disswade when they ought to do it And lastly They that conceal the Fact which they are bound by some Law to make known All these are obnoxious to the same punishment if there be in them such a malignity of Spirit as may suffice to deserve punishment according to what we have already said in the preceding Chapter II. How Princes and States are punishable by reason of the facts of their Subjects This will be made clearer by examples Where offences are but personal there the punishment is not to be national No Community or other Civil Society of men may justly be punished for the fault of some particular persons without either committing or omitting some fact or duty of their own whereunto they were generally obliged For as St Augustine well observes In every Nation those sins which are committed by particular persons are to be distinguished from those that are done in common as when the whole Body of the people being assembled do unanimously decree it to be done Hence ariseth that Clause usual in all Leagues Si defexerit publico Consilio If any thing shall be done to the contrary by any publick Decree then shall the League be adjudged as broken Thus the Locrians in Livy excuse themselves to the Roman Senate saying That their defection proceeded from some ignorant and ill affected people and not by any publick Order of the Senate And the Rhodians in the same Senate make their defence by the same Argument distinguishing between the publick Acts of the City and the private Acts of some particular persons There is no City say they so well governed but may sometimes have some malignant Citizens sitting even at the Stern besides an unexperienced multitude always And if the attempts of every private person were ground sufficient for a just war no City could long subsist Thus St. Chrysostome likewise argues It was not the common crime of the City but of some strangers and Foreigners who do all things rather through rashness and ignorance of the Laws than by reason Neither saith he is it just that so great a City should be destroyed for the indiscretion of some few nor that the innocent should equally suffer with the nocent So neither are the sins of Children to be imputed to their Parents nor Masters to be punished for the crimes of their Servants nor others that govern for those whom they govern unless it be for some delinquency of their own Now of those ways or means whereby they that preside over others may be accessary to their sins and so involv'd in their punishments there are two of singular use and require our strictest disquisition As first By connivence 1. By Connivence For he that knows that such a crime will be committed which he can hinder and is bound to do it but doth it not is guilty of that crime when it is committed Thus Cicero argues this Case against Piso Cicero in Pisonem It is not much material saith he especialâ—y in a Consul whether he do himself stir up the people to sedition by his own pernicious Laws and wicked Speeches and so disturb the peace of the Commonwealth or whether by his connivence he permits others so to do Par est delinquere delinquentes non prohibere It is the same thing saith Agapetus to Justinian to be wicked our selves and to suffer others to be so when it lyes in our power to help it He that suffers a Sinner to sin saith Arnobius adds unto him the strength of confidence Of the same opinion was Salvian He who having a power to prohibit a wicked act and doth it not doth in effect command it And St. Augustine likewise He that doth not resist and oppose himself against a sin when he can do it seems to give his consent unto it By the Roman Laws if a Servant did kill a man with his Masters knowledge the main guilt was transferred to his Master as if he himself had been the Murtherer Even so he that suffers his Bond-slave to be prostituted when he might rescue her was by the same Law judged the Prostitutor By the Fabian Law if one Mans Servant with the consent of his Master seduced another mans Servant the Master of the Seducer was punished for it But as I said before it is requisite that besides the bare knowledg there be also a power and authority sufficient to restrain and hinder the committing of it And this is that which the Laws intend for when knowledge is commanded to be punished it is taken for connivence or toleration so that he stands guilty who having a power to forbid the doing of a wicked act doth it not And in this Case knowledg is taken for that which hath the consent of the will and so it is to be understood as if the fact were committed by his advice and counsel And therefore as the Master is not bound by his Servants crime though he do know thereof if that Servant shall contemn his Masters authority and proclaim himself a Freeman and as Parents are not bound by their Childrens crimes though they know of them if those Children are not under the power and tuition of their Parents because neither Masters nor Parents have any power and authority over them So on the other side although they had power and authority over them and so might thereby prohibit the doing of such crimes yet if they knew nothing of their purpose and intention to commit such acts they cannot be punished for them For both these must necessarily concur to make one man guilty of another mans crime knowledge of the sin committed and not restraining them when it was in
of the Law do not observe it although haply that Law be promulgated and time of it self sufficient allowed for the knowledge thereof As also in such as go to Law both Parties may be free not from injustice only Nemo debet jus suum indiscussum relinquere Tentanda sunt quaecunque tantum sunt Baldus but from any thing else that is blameable especially when both or either of them contend not in the behalf of themselves but of others as a Tutor for his Pupil a Guardian for his Ward whose Right he is bound in duty to defend though that Right be but uncertain So in a wager at Law two persons may contend for one and the same thing and yet neither of them be unjust So also a Councellor may plead for either of them without the least derogation to his honesty Again when something that is very profitable stands in opposition to what is honest it is no easie matter to tell whether of them to follow When we first entred into War with Niger saith Severus the Emperour there was I confess no very plausible pretence for War but the Empire lay at stake between us and both of us strove which should appropriate it to himself Herodian Nay as Aristotle well notes to say of a Judge that he judgeth right is but an Ambiguous speech for it may signifie either that he judgeth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 plainly as he ought without any ignorance or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 according to the best of his knowledge or the clearest evidence that is brought before him And therefore the sentence which must pass according to that evidence may be through mis-information unjust and yet the Judge that passeth that sentence may be righteous * Si dubium sit à qua parte stet justitia hanc si utraque pars quaerit injusta esse neutra possit If it be doubtful on what side the Right stands if both Parties contend for it it is probable that neither doth unjustly The Jews made War against the Canaanites justly being so commanded by God and the Canaanites being ignorant of that charge given against them did justly in defending themselves wherefore that War was on both sides just Thus Pope Pius the second answered the Hungarian Embassador that complained against the Emperour namely He thought that the King of Hungary did intend nothing dishonestly and he knew that the Emperour was a great lover of justice But both contending for the Kingdom probable it was that neither of them thought his Cause unjust In disceptationibus fori par est litigantis utriusque jus donec lata est pro altero eorum sententia In all controversies this is found true but especially in War that both Parties pretend to maintain a Cause that is just But in War it is hardly possible that either party should be in that sense just that is free from all blame by reason of that great defect of love and that overmuch rashness that for the most part inseparably accompanies it besides the weightiness of the business it self which is such as being not satisfied with probabilities strictly requires such proofs as are demonstrative and convincing But if we account that to be just which is permitted to enjoy some effects of Right it is most certain According to the effects of right War may be on both sides just that War in this sense may be on both sides just as will appear anon when we come to treat of a publick solemn War for so both a sentence though not rightly past and a possession not rightly gained have both of them some effects of that which is right CHAP. XXIV War though Just not to be undertaken rashly I. It it better sometimes to remit our own Right than to engage in a doubtfull War II. But especially when undertaken to exact punishment III. And chiefly by a King that is injured IV. And that sometimes for his own and his Subjects safety V. Certain Rules guiding us to a prudent choice of things apparently good VI. An example whereby we may be guided in our endeavours after liberty or peace whereby the miseries of War may be prevented VII Punishment not to be exacted by War unless by the most potent party VIII War not to be undertaken unless compelled by necessity IX Or when we have some very great Cause together with some notable advantage X. The miseries of War lively described I. Better sometimes to forego our right than to make War for it THough it be not properly pertinent to our purpose in treating only of the Rights of War to shew how far other Virtues do either enjoyn or perswade thereunto yet will it not be altogether impertinent for preventing of mistakes to give some cautions about it lest any man should think that whensoever he hath a Just Cause offered him he is bound to make War or at least that it is at all times lawfull for him so to do whereas on the contrary it is for the most part much more pious to remit somewhat of our Right than to endeavour to defend it by a dangerous War We Christians are especially taught to expose our own lives to the greatest perils that can be to preserve the lives and as much as in us lies to procure the everlasting welfare of others in imitation of our great Lord and Master who laid down his own life to save ours even then when we were strangers nay enemies unto him Rom. 5.6 How much more reason have we to forbear the prosecution of our Just Rights when they cannot be obtained without the effusion of so much Christian blood and the destruction of so many mens Lives and Estates Pol. lib. 4. Rhet. ad Alex. c. 3. besides other mischiefs which War usually brings with it This we are forewarn'd of by Aristotle and also by Polybius not for every such cause to run the hazard of a War For the necessary defence of our Liberties our Wives and Children we may lawfully make War saith Gallio in Seneca but not for such things as are either superfluous or being lost Suasoria 5. Philostratus lib. 23. do not much damnifie us This and somewhat more did Apollonius say to the King of Babylon We are not to contend with the Romans for a few small Villages which many of our Ancestors being but private men did enjoy They must be great matters indeed that should so far provoke us Adv. Apion de popul suis as to undertake a War especially with such potent enemies The like Josephus testifies of his Countrey men It is not our custom to muster up our Forces or to make War to enlarge our Dominions but for the defence of our Laws All other losses we can bear with patience but being debar'd the use of our Religion we undertake War beyond our strength and prosecute them to the utmost of dangers It was prudently advised by Dion Prusaeensis in his Oration concerning War and Peace We are
to be lamented whosoever therefore shall with any remorse consider those so great so horrid and so direful effects of War cannot but confess that it is miserable but he that can feel them or think upon them without sorrow much more he that can glory in the success of them Ideo se putat beatum quia humanum perdidit sensum Therefore thinks himself happy because he hath lost all sentiments of humanity So the same Father in another place tells us that Id de Civit Dei lib. 4. c. 15. Belligerare malis videtur felicitas bonis necessitas Good men make War their refuge but wicked men make it their delight And were there nothing of injustice in the War yet to be enforced unto it that is in it self miserable saith Maximus Tyrius whereunto he adds Wise men never make War but by constraint whereas fools fight for pleasure and gain Lib. 13. The Lacedemonians in Diodorus considering those great enmities and animosities likely to arise from War thought themselves bound in duty to declare before the Gods and unto all good men that they were not the Authors of it Plutarch brings in some making this objection But hath not Rome much improved her self by War Whereunto he answers 'T is true indeed she hath so in the opinion of those who place their greatest glory in Riches in Pleasure Wantonness and Martial Power which are but the dregs of Honour but not in theirs who place their glory in the safety of their People in meekness justice and contentation It was therefore worthily said of Stephanus the Phiysician unto Cosroes King of Persia To thee O King who art wholly conversant in blood and slaughter in subduing Kingdoms and depopulation Cities other glorious attributes may be due but surely thou canst never hope by these ways to be esteemed good for as no good man will greedily covet that which is anothers so Non est homini homine prodigè utendum as Seneca tells us Aelian lib. 14. c. 2. It is no point of Honour to be prodigal of humane Blood Philiscus advised Alexander to be emulous of Glory but not by making himself like unto a Plague in depopulating Cities and laying whole Kingdoms wast Nothing can add more Glory to a King than to provide for the safety of his Subjects that they may live in Peace Nat. Hist l. 7. c. 25. Pliny after he had recounted so many famous Battels gained by the Dictator C. Caesar wherein were slain as he there computes Eleven hundred Ninety two thousand men adds this I do not reckon it as any part of his Glory to have done so great wrong to mankind however provoked Philo in the life of Moses observes That though the killing of Enemies in War were by the Laws permitted yet whosoever did kill a man though justly though in his own defence though compelled thereunto against his will did notwithstanding contract some guilt unto himself in respect of that common kindred and alliance between man and man which was derived from the supreme Cause wherefore expiations and purgations were thought necessary to cleanse them from that crime which seemed to be committed by them If then by the Hebrew Laws He that killed a man though against his will Pollutus esset hostili quidem attamen sanguine was to betake himself to one of the Cities of refuge And if God would not permit David to build him a Temple because he was a man of blood though of his enemies that is as Josephus writes because he had made many Wars which by the Law was permitted If among the Ancient Greeks he that had slain a man though accidentally Lib. 7. cap. 4. or in defence of himself had need of expiation Who cannot see how unhappy a thing it is and by all means to be avoided voluntarily to engage our selves in a War though haply not unjust Surely among the Greek Churches that most Christian Canon was long in force whereby he that in what War soever had slain a man though an enemy was not by the space of three years admitted unto the Sacrament CHAP. XXV For what Causes a War may be undertaken for others I. That a War may justly be undertaken by a Prince for his Subjects II. But yet it is not always to be so undertaken III. Whether an innocent Subject may be delivered up to an enemy to prevent a War IV. That a War may justly be undertaken in the behalf of our Confederates equal or unequal V. As also for our Friends VI. Yea and for any man VII Yet may it also be omitted without blame if it endanger himself or cannot be done without the death of the invader VIII Whether that War be just that is made to relieve another mans Subjects this explained by a distinction IX All those military consociations and mercenary succours that respect not the equity of the Cause are unjust X. To engage in War for spoil or pay only is wicked I. A Prince may justly make War for his Subjects ABove when we treated of such persons as had a Right to make War it was said and shewed That naturally every man had a power to vindicate not only his own but the right of another †See lib. 1. c. 5. wherefore look what Causes do justifie a War undertaken for our selves the very same do justifie a War made for another But our principal and most necessary care should be for our own Subjects whether they be our Domesticks or such as live under our Civil Government for they are a part of the Governour as we there shewed Josh 10.6 Persicor 2. Thus Joshua we read made War in defence of the Gibeonites who had yielded themselves unto him It is not sufficient to denominate a Man Just that he wrongs no man saith Procopius unless he also be carefull to protect those from injuries who for that very end have put themselves under him Our Ancestors saith Cicero to the Roman Senate did often make Wars in the behalf of their Merchants and Mariners when they have been abused by Strangers Verr. 2. And in another place How many Wars saith he did our forefathers undertake to revenge the wrongs done to the Citizens of Rome when their Seamen have been imprisoned and their Merchants spoiled Yea and the very same Romans who refused to take Arms in the defence of a People that were their Confederates thought it necessary to defend the same People when they had surrendred themselves and so became their Subjects Thus do the Campanes bespeak the Romans Though ye refused to assist or defend us against our enemies whilst we were your Friends and Confederates yet now that we are your Subjects you will certainly protect us Whereupon Florus saith That the Campanes made that League which they had formerly contracted with the Romans more strong and inviolable by their voluntary surrender of all they had unto them for it agreed not with the Faith of the Romans
thought worthy to be observed Yet should goodness and common humanity prevail with all men but especially Christians to pass by small faults but chiefly if repented of For as the Poet speaks Quem poenitet peccâsse pene est innocens He 's almost guiltless who is penitent But yet to the end that the Peace may be the better preserved Yet small offences are to be referred to these of smaller concernment this Clause ought be added That in case any of them should be broken it should not amount so high as to the breach of the peace But that such things should be first put to reference before it should be lawful to take Arms which we find added to the Peloponnesian League recorded by Thucydides XXXVI Or some punishment for them inflicted And I am clear of opinion that the same may be done in case some special punishment be inserted in those Articles not that I am ignorant that such an agreement there may be That it shall be in the choice of the Party injured either to accept of some punishment or to null the Peace But that the nature of the offence may be such as requires rather that Lib. 3. c. 19. §. 14. than this Besides what I have formerly said and proved by the Authority of History is evident That he that fulfils not his promise being first failed breaks not the Peace for he is not bound but under condition XXXVII What if hindered by necessity But if the nonperformance of what is agreed unto be occasioned through necessity as if the thing promised be taken away or perished or if what was agreed to have been done be by any chance or casualty rendred impossible the Peace shall not be deemed as broken For as we have said before Peace doth not usually depend on such conditions as are casual But the other Party shall be at his choice whether he had rather expect the performance of that promise hereafter if there remain any hopes that it may be done though late or receive to the value of the thing promised or lastly whether he had rather be discharged from some other thing mutually promised and answerable to that in this Article and that is thought equivalent to it XXXVIII Yet if the innocent party will the Peace is not broken It is certainly an argument of great integrity in the innocent party to preserve the Peace even with those who have often broken their Faith as Scipio did with the Carthaginians notwithstanding their many perfidious dealings with them because no man can possibly cancel his obligation by doing contrary unto it For although it be exprest that by such a contrary fact the Peace shall be broken yet is this so to be understood that it shall ly in the choice of the innocent person whether he will make such an advantage thereof or not XXXIX The third way of breaking Peace Lastly we said That the Peace may be broken by doing that which is contrary to the special nature of every Peace XL. What falls under the notion of Friendship Thus those things that are done contrary to Friendship do break that Peace that was contracted under condition of Friendship for look what the duty of friendship may require from others ought also to be performed by the Right of this agreement And to this though not to every Peace for some there are that are not tyed up to this condition Pro Gabin as Pomponius observes may we refer many of those dissertations which Civilians handle concerning such injuries and contumelies as are committed without force of Armes and particularly that of Tully If after Peace made any thing be committed it shall not be accounted as a bare neglect but as a wilful breach neither shall it be imputed to impudence but unto perfidiousness And even here also as much as in us lies we are to take care that we judge not of the fact invidiously if therefore an injury be done against either our Allies or Subjects it shall not be imputed to him with whom we have made Peace unless it be evident that it was done by his instigation According to which natural equity do the Roman Laws proceed concerning such acts of cruelty as are done against Servants as Adultery and Ravishment are imputed rather to acts of unbridled lust than of hatred and so the invading of another mans Right is adjudged as an act of Covetousness rather than of Treachery Cruel threatnings whether by words or signs unless it be upon some new cause given cannot consist with friendship no more than can the erecting of new Forts and Bulwarks upon the Frontiers when it is manifest that they are not so much for defence as offence so also the more than ordinary preparations for War either by Sea or Land if he with whom the Peace is made have ground enough to believe that they are made against none but against himself XLI To receive Exiles whether contrary to friendship The reception of such particular persons as are willing to transplant themselves from one Princes Dominions to another is no breach of Friendship for this freedom is not only natural but benign whereunto we may likewise add the receiving of Exiles for as I have elsewhere proved out of Euripides * Lib. 2. c. 5. §. 24. over such the City or Prince that banished them can have no power What advantage is it saith Perseus in Livy †Lib. 42. that every man hath power to banish himself if there be no place left him to fly unto And this Aristides calls a right common to all mankind to receive persons banished * Leuctr 2. Solon would not admit that any Strangers should be enrolled among his Citizens but such as had been for ever banished their own Country or such as came with their whole Families to Athens there to exercise some Craft or Manufacture Perseus in Appian pleads thus with the Romans concerning his receiving of some fugitives What I did saith he was justifiable by the common right of all mankind which you your selves also do sometimes which likewise is usually confirmed by mutual Covenants as may appear by that Peace made between the Romans and the Persians The like doth Strabo testifie of the Aradii who whilst the Kings of Syria were at War among themselves obtained this liberty That they might receive what Fugitives they pleased but send away none But as to walled Towns or any great Multitudes that did constitute any one entire part of a City that it is not lawful for any Prince to receive these we have already proved This was the cause of the War between the Persians and the Romans Lib. 2. c. 5. §. 24. because King Lazus at the sollicitation of the Consul had revolted to the Romans Neither is it lawful to receive such as are bound either by Oath or otherwise to perform duty or service to another Prince The like hath sometimes been introduced by the Law of Nations among some people
236. under Alexander deny to carry Materials to the Temple of Belus 428. in what Cases not to associate with wicked Kings page 185 Ignorance excuses when page 237 Ignorants to be spared in a Just War page 500 Ignorantly and through Ignorance distinguished ibid. Islands and Increments by inundation whose 136. floating 137. how distinguished from Increments ibid. Images abhorred by the Persian Magi 466. to deface to him that believes to include a Deity impiety ibid. Imperare 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 page 50 Impiety and open profaneness towards any that is acknowledged as God punishable page 392 Imprisonment unjust to what it obligeth page 201 Importation of some goods prohibited page 86 Of Inequality The Law of Nation takes no cognizance if consented unto page 165 Incestuous Marriages forbidden by the Law of Nature 107. two reasons given against such page 109 An Increment what is thereby meant 138. whether stopt by an Highway 139. it is his whos 's the River is oâ— his whos 's the Grounds are that bound it 138. it is his to whom the Land is granted if the Land be arcifinious ibid. if in doubts is the peoples ibid. whether it may belong to the Princes Vassal ibid. Indians many Wives 106. no Tribunals but for murder and injuries done page 211 Induciae whence page 558 Infants capable of Dominion 89. but not to dispose thereof without a Guardian ibid. so is he to inherit but not to dispose of it page 103 Infeudations 119. made by Kings without the peoples consent void with consent how gained ibid. Ingratitude of the Romans punished by M. Levinus with disfranchizement page 39 To Inhabit any Country free for Exiles page 85 Injuries faults mischances distinguished 500 on the one side makes War just on the other 70. what oblige to restitution what not page 531 Injure others we ought not to benefit our selves page 82 Injuries done us by our Country Prince Parents to be patiently born page 58 Injuries intended only sometimes punished page 383 Innocents to be defended page 425 426 The Innocent not to be destroyed with the Nocent page 504 The Innocent falshood of Joseph to his Brethren page 443 Instruments of the Plough not to be taken in pawn page 514 To Insult over the Vanquished ignoble page 506 507 Intent sometimes equally punished with the fact 381. though ill obligeth not to restitution page 383 Invaders Command how far obliging 62. in what Case he may be killed by a private man page 65 For the Interpretation of Promises and Contracts some Rules page 193 What Interpretations given to contracts between Enemies 558. if odious in their full propriety if ambiguous in the largest sense page 193 Interpretation of Leagues 190 sometimes gathered from the Context 191 192. if in doubt ought to favour the weakest page 548 Intestates Estate to whom naturally it descends page 122 Invasion made by Confederates or their Subjects whether it break the Peace 548. by Subjects when attributed to the Prince ibid. By Inundation the Owner may lose his Right page 137 Inundations and Increments thereby gained page 136 137 Josephus in expounding the Hebrew Law flatters the Romans page 466 To Judge of the Cause of a War between Princes dangerous page 457 The Judges Office in criminal Causes dangerous page 373 A Judge should be tenderly affected as a Father 416 417. may be punished his Sentence being unjust but not the Executioner 429. said to be just though the Sentence be unjust page 55 In Judgment the matter not the Persons to be considered page 3 4 To Judge of a mans meaning by his speech how due page 441 Judgment of zeal what page 445 Judgment contemplative and practical page 429 Judging of the Supreme Power Caâ—tions page 41 The Judgment how steered in doubtful Cases page 411 Against Judgment though erroneous nothing to be done ibid. Judgments Capital why by Christ permitted 372 373. Christians may execute them but not affectedly ibid. Jus and Justice how distinguish'd page 494 Just in War what page 2 Just taken strictly what page 414 Justice derived from Jove Pref. vi Justice and Valour usually attended by Victory xii Justice Expletive and Attributive page 4 Just Cause procures Friends xii Just Cause adds courage to Souldiers ibid. Justice Commutative or Expletive page 3 Justice how described by Porphyry v. preferred to fortitude x. it begets courage 430. it so gives to every one his own that it detracts not from the just Right of another 198. it should extend it self to all Mankind x Where Justice is not required the longest Sword takes all page 435 K. KEturah's Son by Abraham received Gifts or Portions but no Inheritances page 125 He that Kills an Enemy in the War is guiltless page 357 To Kill a man for slight injuries is againast Charity 73. in defence of our Goods naturally not unlawful page 74 To Kill a private man is murder but thousands in an unjust War Valour and Vertue page 70 To Kill a Nocturnal Thief whether tolerated only by the Civil Law or approved 75 76. an incorrigible Malefactor not against the Law of Nature page 368 To Kill an Enemy after Battel against Charity page 506 To Kill an Enemy privately in his own Quarters whether lawful page 462 To be Killed none for his valour in defence of his own cause if good page 568 To Kill all that have offended brutish page 501 Who may be justly Killed in a just War according to Justice internal page 498 Kings Grants when revocable and when not 180. their Contracts do not always bind their Successors page 178 179 Kings how they serve God as Kings page 17 18 Kings whether bound by prescription see Prescription Kings that make Laws not subject to Laws 377. not all constituted by the People 40. not bound by their own Laws directly 101. in name some not in power 39. whether he may renounce his Kingdom so as his Son shall not inherit page 131 Kings raised by providence fit for the times and People 41. they have no superiour but God 40. their vices must be born with patience ibid. to revile them is wicked but to kill them though wicked horrid page 39 A Kings person to be spared in cases of absolute necessity page 66 Kings regard honour more than power yet doth not this abate of their Right 54. their private Acts subject to the Laws page 177 Against Kings the Law that makes void any private mans Acts by way of Punishment is void ibid. Kings Promises Contracts and Oaths page 176 A Kings word as firm as an Oath page 175 A King may null his own Oath as private men antecedenter not consequenter 177. whether he may revoke his own acts which he doth as a King page 176 Kings defended by severe Laws page 61 By the Contract of a King how the Heir may be bound page 178 How a King may be bound to his Subjects naturally and how civilly page 177 Kings bound by their own Laws as a member not as the body
that they always preceded in such Councils as were called concerning Christian affairs who first profest themselves Christians as Aeneas Sylvius records in his History of the Council of Basil XXII Where divers societies claim unequal shares how Votes are to be reckoned But yet so often as the ground and main reason of entring into this Society was the preservation of something held by them in common but not in equal proportions As in an Inheritance or in a Field wherein one hath half another a third another a fourth part Then not only the order but the suffrages of that Assembly shall be not by the plurality of single Votes but by the proportions that they severally have in the thing held in common which as it is most agreeable to natural equity so it is approved of by the Roman Laws So Strabo tells us That when Lybica with three other adjoyning Cities did unite themselves as it were in one Body it was agreed that each of the three was to have one voice but Lybica two because it contributed much more to the common benefit than the rest And the same Author tells us that in Lycia there were twenty three Cities combined whereof some had three voices some two and some but one Fol. l. 3. c. 9. and accordingly all charges were divided and paid And this is but just saith Aristotle if the defence of their common possessions were the chief cause of their Consociation XXIII The right of societies over their Citizens Of all Societies that of divers Masters of Families embodyed in one City or Nation as it is the most perfect so it gives a greater right or power to the whole over every part thereof than any other Society whatsoever Neither is there any outward act done by any one Citizen but what either by it self doth or by circumstance may refer to the conservation of that Society For as Aristotle tells us The Laws do rule us in things of all sorts XXIV Whether Citizens may desert their City And here it may be questioned whether it be lawful for Citizens to forsake their City without leave given There was an ancient Custom saith Servius that he that transplanted himself into another Family or Nation did first renounce that wherein he formerly dwelt and then was received And true it is that in some Countries it is not lawful to forsake the City without leave as in the City of Mosco Mariana li◠28. c. 13. Neither do I deny that it is possible for a Civil Society to be entred into under some such Agreements and that Customs may introduce the force of such an Agreement Yet by the latter Roman Laws it was lawful for any Citizen to remove his Habitation yet not so but that he stood still obliged to execute such Offices in the City as should be imposed on him Neither were these to depart out of the Roman Territories and special care was taken by the Law it self that they should pay their Contributions But setting aside these municipal Laws and Constitutions let us discuss this question according to natural Right and that not of any one part but of the whole City though under the Supreme dominion of one Person And surely that they cannot recede by Flocks or great Companies is easily collected from the necessity of the end which in moral things is able to create a Right For if this should be lawful there might instantly follow a dissolution of that Civil Society Zonoras speaking of King Lazus who revolted from the Persians to the Romans makes it the cause of a just War between the Persians and the Romans that the Roman General had drawn unto himself the Subjects of the Kings of Persia But as touching the departure of some particular persons from a City it is much otherwise As it is one thing to draw water out of a River and another thing to turn the course of it Every Citizen saith Triphonius is free either to stay in or to depart from his own City And Cicero in his Oration for Baldus commends this Law That no man should be enforced to stay in a City against his will and this he lays down as the foundation of Liberty that every Freeman hath absolute power over himself To live where we please is the foundation of liberty either to remain in it or to recede from it And yet herein also we are to submit to natural equity which was the Rule that the Romans walked by in dissolving private Societies that it should not be lawful when the publick was damnified by it For as Proculus rightly observes Always not that which is profitable to some one of a Society is usually to be observed but what is expedient for the whole But it is expedient for the whole Society that in case any great publick debt be contracted no Citizen should forsake the City unless he have first paid his proportion of it Also if upon confidence of the number of their Citizens they have begun a War but especially if they are in danger to be besieged no Citizen ought to forsake the City till he have first provided a Person as able as himself to defend the Common-wealth But unless it be in these cases only it is probable enough that the people do give their consent that any Citizen may freely depart because even from this liberty they may make no less advantages to themselves some other ways XXV A City hath no power over her banished So likewise no City can have any Right over those whom she hath banished as we shall shew anon * The Heraclidae being banished Argos by Eurystheus and afterwards persecuted by him do thus plead by their Advocate Jolaus By what Right doth he prosecute us now whom he banished his City for now we are no Subjects of his And Alcibiades his Son speaking of the times of his Fathers banishment tells the Athenians Lib. 3. c. 20. §. 41. that The welfare of their City did nothing concern his Father So likewise Nicetas speaking of Isaac Angelus saith It is no new thing for any man to court and flatter his Enemy that is but sensible that his own Countrymen do persecute him as their Enemy But now the consociation of several Nations whether by themselves or their Governors are called Leagues of the nature and effects whereof we shall have occasion to speak when we shall treat of Obligations which arise from Contracts and Agreements XXVI What Right a man hath over his adopted Son There are also voluntary subjections and those either private or publick the private vary according to the several sorts of Government that which is most noble is that of Arrogation or Adoption whereby a man translates himself into the Family of another so as he behaves himself with that duty and reverence as a Son of mature Age should do rowards his own Parents No Father can possibly transfer his Paternal Right over his Son to another man so fully as to be