consent a man hath over his adopted Son XXVII Of the right that Lords have over their Servants XXVIII How far this right extends as to life and death XXIX What the Law of Nature determines as to those that are born unto Servants XXX Of Servitudes there are divers kinds XXXI What power by consent one Nation hath over another that freely subjects it self XXXII What right is acquired over persons for some crime committed I. The Right of Parents over their Children A Kind of Right may be gained over Persons as well as things and that either by Generation by Consent or by way of Punishment for some delinquency By Generation so both the Parents have equal right over their Children yet so that if they differ in their Commands the Father as being of the more noble Sex is to be obeyed before the Mother Of this mind was St. Chrysostom 1 Cor. 11.3 It is expedient saith he that the Wife should be subject unto her own Husband for equality in honour begets quarrels And St. Augustine also A Son born in lawful wedlock Ep. 191. is more at the command of his Father than of his Mother II. This right differs according to the age and discretion of their Children In Children we must distinguish their three different times The first is that of their Infancy whilst they are of unripe judgment not able to know good from evil not to distinguish truth from error The second is When they grow to ripe judgment but yet continue in their Fathers Family The third period is this When they are separate from their Fathers and have Families of their own During the first of these all the actions of the Child ought to be regulated by the Parents for it is but equal that he that cannot govern himself should be governed by another Vide supra c. 3. §. 6. and naturally there is none so fit to govern the Child as the Parents And yet by the Law of Nations the Child is then capable of inheriting an estate though he be justly restrained from managing of it by reason of his immature judgment This was Plutarch's observation where he saith De fort Alex. lib. 2. That Children have a Right 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 but not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to the Inheritance but not to the use of it Neither is it from the Law of Nature that all that is the Childs should be disposed of by the Parents but from the Laws of some people which do in this case sometimes distinguish the Father from the Mother as they do also between their bond and free children and between the natural issue and legitimate of which distinction the Law of Nature takes no Cognizance except only of the priviledges of Sexes where both Parents contend who shall command the Child III. The Second Period Whilest the Child is a part of the Parents Family In the second period when the Childs Judgement is ripened with his years yet abiding in his Fathers house those actions of the child only are subject to the commands of his Parents that are of moment to the well ordering of the estate of his Father or of his mothers Family For it is but reasonable that every part should endeavour the welfare of the whole But in his other actions he hath a moral power to do whatsoever his own judgement shall guide him to provided that in all things he endeavour as far as in him lies to please his parents But because this is a debt arising not by vertue of that moral faculty as those above but from the duty of piety reverence and gratitude it cannot make void those actions of his that are otherwise done no more than it will suffice to avoid any grant or gift given by the right owner to say That it was against the Rules of Parsimony IV. Of Parents coercive power During both these spaces of time Parents have a Right not to govern only but to punish and to enforce obedience from their children so far forth as they ought to be either compelled to their duty or to reform what is amiss But as to greater punishments we shall discourse elsewhere V. Their power to sell them Although the Paternal Right be so inherent in the Fathers person as that it can no ways be either taken from him or transferr'd to another yet naturally if the Civil Laws do not restrain the Father hath power to pawn or if necessity so require to sell his son Hist Goth. if he have no other way or means to maintain him Thus the Goths as Jornandes records solicitous of their Childrens safety chuse rather to preserve their lives than their liberties and therefore in Compassion thought it better to sell them to be kept and nourished as slaves than to suffer them to dye in defence of their freedome Which Right other Nations seem to have borrowed from that old Theban Law recited by Aelian which also seems to be derived from the Phoenicians Lib. 2. and also from the Hebrews and by them to the Grecians as Apollonius observes in his Epistle to Domitian For Nature it self is presumed to give us a right to all that without which that which she commands cannot be obtained VI. Their power over them when separate from them In the Third space or period that is when the Children are grown to maturity and in another Family by themselves then they are free to do what pleaseth themselves always paying the duty of piety and reverence to them which is an obligation never to be cancelled whence it follows that the acts of Kings are not therefore null'd because their parents are living VII The Rights of Parents are either Natural or Civil What power Parents have over their children more or less than this they derive from the positive Laws of men which in all Nations are not the same So by that right that God gave unto the Hebrews the power of a Father to null the vows of his Sons and Daughters was not perpetual but only during their abode in their Fathers family As may appear Numb 30.2 3 4 5 verses For otherwise the Son being parted from his Father had power at thirteen years of age to bind himself without the consent of his parents The Roman Citizens being Fathers had a peculiar power over their Sons though they were heads of their own Families The Romans gave as much power over their Sons as over Slaves Pyrrhoniorum 3. before they were made free which power they themselves confess that other people had not over theirs So saith Sextus Empericus The Roman Law-givers gave as much power to parents over their children as over their slaves for the goods of the Children were not reputed theirs but their Parents until they were manumitted in the very same manner as their slaves were Which other Law-makers rejected as Tyrannical The like doth Philo record of them All manner of power over the Son was by the Romans given to the Father
Parents to love their Children than for Children their Parents And that also of Aristotle That which begets is always better affected to the thing begotten than that which is begotten can be to the begetter For that is properly said to be our own which derives its being from us Whence it comes That without the favour of the Civil Law the first Succession to the goods of the Parents is transmitted to their Children it being presumed That next after themselves they would that those born of them as being part of their own body should be plentifully supplied with all things not only necessary for life but for a more honest and comfortable livelihood Insomuch that were all humane Laws asleep yet as Paulus the Lawyer observes would natural Reason which is as it were a silent Law adjudge the Fathers Inheritance unto his Children and invest them in it as their due by an undoubted Succession But yet as Papinianus notes cannot Parents claim the estates of their Children by the same Right as Children do the Inheritance of their Parents For Parents are admitted to their Childrens goods meerly out of Commiseration but Children to the estate of their Parents by the common vote that is both of Nature and of their Parents Philo in his third Book of the life of Moses gives this Reason why Moses made no provision for Parents out of their Childrens Estate Because seeing that the Law of Nature did provide that Children should succeed their Parents in their Estates and not Parents their Children therefore did Moses pass over in silence what was contrary to the desires of all Parents and might prove unlucky Hence we may observe That the Inheritance of Parents descends upon their Children by a twofold Right partly as a meer debt of Nature and partly out of a Natural Conjecture That it is the Will of their Parents that their own Children should be best provided for Lib. 5. c. 9. Sanguini honorem relinquit saith Val. Max. of Quintus Hortensius His honour he bequeathed to his Blood For though he detested the wicked life of his Son yet dying Ne ordinem naturae confunderet non nepotes sed filium haeredem scripsit To preserve the order of Nature he made his Son and not his Nephews heir to his Estate Thinking it enâ—ugh that he had declared his dislike of his Sons ill manners whilest he lived And therefore dying Ib. he left him the honour due to his Blood The like he records of Fulvius who causing his own Son to be apprehended for conspiring his death did not only forbear to prosecute him whilest he lived but dying Dominum omnium esse voluit quem genuerat haeredem iâ—â—â—ituens non quem fuerat expertus Made him heir of all he had regarding his Birth and Blood and not his Crimes And to this purpose is that of St. Paul Children do not lay up for their Parents 2 Cor. 12.14 but Parents for their Children VI. Of Representative Succession Now because it is thus natural and ordinary for Parents to take care of their Childrens Education therefore whilest they live there lyes no obligation upon the Grand Parents to give them maintenance Yet in case the Father or the Mother dye or be otherwise disabled then it is a duty which in all equity the Parents of the deceased Son or Daughter are obliged unto to see their Nephews or Neeces virtuously brought up And by the same reason is the same duty incumbent on the Parents of more remote degrees if these fail And from hence ariseth the Right of the Nephew to inherit the Estate instead of a deceased Son as Vlpian speaks Which gave occasion to that Hebrew saying Filius etiam in Sepulchro succedit That the Son succeeds though in his Grave Because Filii filiorum sunt quasi filii The Sons of that dead Son are reputed Sons And as Modestinus speaks Shall fill up the vacant place of their dead Father Justinian thought nothing more unreasonable than this That the Nephew should succeed instead of the deceased Father in the Estate of his Grand-father in case he dyed Intestate And this kind of Vice-succession our Modern Civilians do affectedly call Representative when the Sons claim an Estate by representing the person of their Father being dead And that that manner of Right was approved of amongst the Hebrews the division of the Land of Canaan amongst the Children of Israel doth sufficiently demonstrate As our Sons and Daughters are nearest unto us in blood so are those who are born of either of them as Demosthenes observes in his Oration against Macartatus VII Abdication or exheredation What we have hitherto said concerning the Right of Succession arising from our Conjectures at the Will of the Intestate is of force if there appear no certain sign that he was otherwise minded Such in the first place was among the Grecians an Abdication or a manifest renouncing or casting off of the person claiming And among the Romans an open disinheriting of him yet so that if that person did not by his crime deserve to be put to death he was to be allowed sufficient to sustain Nature for the Reasons aforesaid VIII The Right of Bastards And here we may add another exception to this general Rule that is If it do not sufficiently appear that such a Son or Daughter was begotten by him But yet we know that of such matters of fact there can be no certain knowledge But of such acts as are publickly done before men there may be some certainty upon the Testimony of such as beheld them In which sense the Mother may be certain that the Child is hers by those who were present at its Birth and Education but thus certain cannot a Father be Which Homer first and after him Menander thus intimates Know directly no man can From what stock himself first sprang And so in another place he thus distinguisheth between the Parents Fathers do love their Children Mothers dote She knows them hers but this he takes by rote Therefore some way was thought fit to be found whereby it might probably appear who the Father of every Child was And this was Marriage taken in its Natural terms that is for such a cohabitation as placeth the woman under the custody or safeguard of the man But whether by this or some other way the true Father of the Child be known or that any man doth own the Child as his by the Law of Nature that Child as well as that born in Marriage shall inherit Neither is this strange seeing that we see meer strangers being adopted for Sons to succeed in the Jnheritance only by conjecture at the owners will And the Nephew instead of the Father as old Jacob adopted Ephraim and Manasses into the number of his Sons in the stead of their Father Joseph But our Natural Issue is differenced from our Legitimate by Law only So Euripides Bastards no less than those in Wedlock born Are ours although by Laws
doth even the Ballance and which he there calls commutative But these require yet a more strict disquisition I say then that every punishment respects the good either of the person punished or of the person injured or of every man indistinctly The first of these aims at the reformation of the person punished and is called by Philosophers sometimes reformation sometimes satisfaction and sometimes admonition Paulus the Lawyer calls it a punishment ordained for reformation and Plato to teach us prudence Plutarch the Souls Emperick whereby she is amended and made better as by Physick which works by contraries For because all humane acts especially if they be frequent and deliberate do beget a proneness in nature unto the same which at length turns into a habit therefore if such an act be vicious we must as soon as we can take away all allurements and provocations thereunto which cannot by any means more properly be done than by allaying the sweetness of the sin by the sharpness of the punishment The Platonists as Apuleius testifies hold That there is no punishment so severe as to go unpunished Ann. 3. And Tacitus will instruct us That the Corrupter and the corrupted the sick and the distempered mind is to be restrained with no gentler medicines than are those very lusts that inflame them And therefore as a tender Mother imbitters the Nipple when she weans her Infant Sen. de ira lib. 2. or as a skilful Chirurgion lanceth burns and scarifies his Patient whom he intends to cure so it is the duty of a prudent Magistrate corrigendo mederi to reclaim and reform a Malefactor by sharp but seasonable punishments VII 1. To the offender Now the punishment that serves to this end may lawfully be inflicted by any man that is prudent and judicious and not guilty of the same or of the like fault especially if it be verbal only as will appear by that in Plautus Amicum castigare ob meritam noxiam Immune est facinus verum in aetate utile A Friend to chide for what unjust appears Is blameless sure but most in men of years But if it be by stripes or any other forceable means then is it not equally lawful for every man yet doth not this difference between persons lawfully or unlawfully punishing arise from the Law of nature neither indeed could it but that reason peculiarly commends the free exercise of this right to parents over their children because they are so dearly affected toward them but from the positive Laws of men which to preserve love among neighbours and to prevent strife and discord do restrain this common duty and confine it to the nearest of kinn as appears as well by the Codes of Justinian under this title de emendatione propinquorum as elsewhere Apposite hereunto is that of Xenophon to his Soldiers If I shall strike any man for his good I confess I thereby deserve a punishment but no other than parents do from their children or masters from their schollars for even Physicians sometimes lance cup and scarify their Patients when otherwise they cannot cure them God himself saith Lactantius commands us to keep a strict hand over our children that is to chastise them as often as they transgress lest by overmuch fondness and indulgence they prove ill nurtured and contract unto themselves vitious habits But this kind of punishment never reacheth unto death because death takes away all hopes of reformation unless it be by way of reduction whereby negatives are reduced to their opposite positives Mark 14.21 as in that speech of our Saviours It had been better for some that they had never been born that is it had been less evil for them the like may be said of incorrigible sinners it were better for them that is less evil for them to dye than to live De Ira. c. 5. interesse pereuntium ut pereant Jamblichus And of such it is that Seneca meant when he said that sometimes it is good for them that dye that they do dye As when a tumour or impostume is grown to suppuration better it is to burn an hole thereby to discharge part of that impostumated matter than longer to imprison it so for a man that is past hopes and desperately wicked it is better for him to dye than to live for as Plutarch speaks of such they are noxious to others but most to themselves so Galen when he had said that some men ought to be punished by death first to prevent the mischiefs they would do were they suffered to live next that by their death others may be forewarned adds in the last place that it is expedient even for themselves to dye being so wholly corrupted in mind and mannâ—rs that it is not possible to reclaim them Some there are who think that St. John spake of such men when he said that there was a sin unto death 1 John 5.16 1 John 5.16 And St. Chrysostome speaking of such saith that they are like men irrecoverably sick so Julian of Constantius seeing that there are two kinds of offences some that are corrigible as not despising the means of their cure others of men desperately wicked and incorrigible for these the Laws have found out a remedy by death to put an end to their wickedness not so much for their own as for the benefit of others But because no arguments can be brought to prove this but what are fallacious therefore in very charity we are not rashly to judge any mans case to be desperate and therefore this kind of punishment I mean by death is seldome inflicted to this end namely for emendation VIII To him against whom the offence is committed Some resemblance of this there is in some Beasts Pliny records it of the Lyon that in poenam Adulterae consurgit he riseth up to revenge himself of his Adulteress Nat. Hist. 8. 16. Three ways to provide for ones safety against him that hath injur'd us The benefit that accrues by punishment unto him against whom the offence is committed consists in this that it prevents the like mischief either by the same person or by others Gellius out of Taurus describes this kind of punishment thus when the authority or dignity of the person against whom the offence is committed is to be upheld and maintained then is the punishment necessary lest if it go unpunished that authority be held in contempt and the honour lost Now what is there said concerning authority is also to be understood of liberty or of any thing else wherein we may claim a just right for he that suffers one injury to go unpunished doth but invite another wherefore Tacitus concerning one of the Roman Emperours said well consuleret securitati justâ ultione he might have better provided for his own safety by a just revenge Now to the end that a man may secure himself against him that hath formerly injured him there are three means First By putting him to death that
than both the former namely That thereby he is compelled by the Law against his will to do good in a matter of the greatest concernment to a person whom he hates and whom he wisheth it were in his power everlastingly to vex and torment whereas the Servant for the wrong he hath suffered receives this double comfort first that he enjoys what of all things he most desires to wit his liberty and then that he is for ever freed from the commands of so cruel and severe a Master V. Nor to impose too hard labour upon him Neither are we to impose upon them too hard labour without regard had to their strength and health To this end with some others was the Sabbath by the Mosaical Law instituted namely That Servants as well as Beasts might enjoy some refreshment from their labours Do ye not observe saith Seneca * Ep. 47. how careful our fore-fathers were as well to prevent all occasions of envy to Masters as of reproach to Servants when they stiled the Lord Exod. 20.10.23.14 Deut. 10.14 Pater Familias The Father of the Family And his Servants Familiares His familiar Friends So in another place he bitterly inveighs against the too strict exaction of Servants labours where speaking of such he saith Ep. 107. Nos non tanquam hominibus sed tanquam jumentis abutimur Whom we abuse not as Men but as Beasts And Dion Prusaeensis describing a good King saith That he is so far from usurping the title of Lord over his Subjects being Freemen That he will hardly admit of it over his Servants Vlysses in Homer professeth Od. 1. That those of his Servants whom he found faithful were as dear unto him as his own Son Telemachus Gratius est nomen pictatis quam potestatis Tertul. Much more graceful is that name which imports Piety than Power and better it is to be called the Father than the Lord of a Family Neither is there any other reason saith Lactantius Lib. 5. c. 15. why we call each other Brethren but because we believe that we are all by nature equal For since we esteem all humane things not from or by their Bodies but their Spirits though the condition of the bodies be diverse yet are they not unto us Servants but we both esteem of them and call them in spirit Brethren but in Religion our fellow-servants De moribus Eccl. Thus also St Augustin concerning the customs of the Catholick Church Thou i. e. the Church teachest Servants to adhere to their Masters not as prest thereunto by necessity but out of delight they should take in doing their duty Thou teachest Masters in imitation of God who is the supreme Lord and Master of all to be gentle and merciful to their Servants and to be always more propense to exhort and admonish them than by force to compel them to do their duty And in case they transgress rather to correct them as Sons than to rage and tyranize over them as Slaves The like advice doth St Hierome or Paulinus give unto Celantia concerning Servants So order and govern thine House as though thou wert rather a Mother than a Master in it And invite thy Servants to reverence thee not by thy sharpness but by thy meekness and benignity De Civit. Dei l. 19. c. 16. And St Augâ—stin observed That in antient times good Parents governed their Families in this order As to temporal things the condition of their Children was much better than that of their Servants but as to Religious duties they made no distinction but Servants as well as Children were with the same affection instructed in the true worship of God From whence every Master was called Pater Familias which in time grew so common That even they that lorded it over their Servants with the greatest severity would not willingly be called Lords And for the very same reason were Servants called Children as Servius notes upon that of Virgil Claudite jam rivos pueri c. Tacitus commends the Germans That they made the same account of their Servants as they did of their Farmers or Tenants And Theano in an Epistle of his prescribes a just measure for Servants namely That they should neither be tired with over much labour nor weakned through want or poverty VI. The Stock of the Servants how far the Lords and how far his own To Servants for their Labour we owe Aliment So saith that wise Son of Syrach Bread correction and work are due to a Servant Of the same opinion was Aristotle * Oecon. l. 5. The reward of a Servants work is Aliment Neither are they much out who command us to use our Servants as we do Mercenaries Operam exigendo justa praebendo By exacting their work and withal paying what is their due So provide for thy family saith Cato that they be not pined through hunger nor starved through cold There is somewhat saith Seneca †De benef l. 2. that a Master owes unto his Servant that is Food and Rayment And in another place * Idem de tranquilitate Familia vestiarium petit victumque A Family requires Food and Rayment For this it is that the Roman Captives plead unto Bessus †Procop. Goth. 3. Give us say they at the least Food as we are thy Slaves not as much as sufficeth though our necessities require it yet so much as may keep us alive St Chrysostome gives this advice to the Master of a Family * In Eph. 5.2 If thy Servant perform his dayly labour for thee do thou feed him and besides his food provide that he be well clad and well shod and this is some kind of service that we owe unto our Servants for unless thou do this office for him neither will he do his duty to thee but will remain free Neque ulla eum lex constringit si non alatur operas praestare For there is no law to enforce him to perform his duty if thou neglect to perform thine The proportion allowed to every Captive amongst the Romans was four Roman Bushels of Corn for every Month Phorm Act. 1. scen 1. every such Bushel containing of our measure about three Pints and ten Ounces above our Peck as Donatus upon Terence informs us Thus also Martianus the Lawyer Some things there are which of necessity the Lord must do for his Servant namely to provide for him meat and cloathing 〈…〉 7. 〈…〉 11.1 Lib. 1. The Sicilians stand condemned by all Historians for their cruelty in famishing the Athenian Captives So also doth Isaacus Angelus for the like cruelty to the Sicilian Captives as Nicetas records who also recites an Epistle sent by the King of Sicily to the Grecian Emperour concerning this matter Besides Seneca in the place before quoted proves That Servants are in some sort free and in some things able to oblige their Masters by some courtesies as when they do more than is imposed on
King though wicked for certainly he by whose Providence all Kings reign will pursue the Regicide with vengeance inevitably To reproach any private man falsly is forbidden by the Law but of a King Kings must not be reviled much less killed though wicked we must not speak evil though he deserve it because as he that wrote the Problems fathered upon Aristotle saith He that speaketh evil of the Governor scandalizeth the whole City So Joab concludes concerning Shimei as Josephus testifies Shalt thou not dye who presumest to curse him whom God hath placed in the Throne of the Kingdom The Laws saith Julian are very severe on the behalf of Princes for he that is injurious unto them doth wilfully trample upon the Laws themselves Misopogoris Now if we must not speak evil of Kings much less must we do evil against them David repented but for offering violence to Saul's Garments so great was the Reverence that he bare to his Person and deservedly for since their Soveraign Power cannot but expose them to the general hatred therefore it is fit that their security should especially be provided for This saith Quintilian is the fate of such as sit at the Stern of Government that they cannot discharge their duty faithfully nor provide for the publick safety without the envy of many The Laws are severe in the defence of Kings And for this cause are the persons of Kings guarded with such severe Laws which seem like Draco's to be wrote in blood As may appear by those enacted by the Romans for the security of their Tribunes whereby their persons became inviolable Amongst other wise Sayings of the Esseni this was one That the persons of Kings should be held as sacred And that of Homer was as notable His chiefest care was for the King That nothing should endanger him And no marvel For as St. Chrysostom well observes If any man kill a Sheep 1 Tim. 1. And why he but lessens the number of them but if he kill the Shepherd he dissipates the whole Flock The very name of a King as Curtius tells us among such Nations as were Governed by Kings was as venerable as that of God So Artabanus the Persian Plut. Them Amongst many and those most excellent Laws we have this seems to be the best which commands us to adore our Kings as the very Image of God who is the Saviour of all And therefore as Plutarch speaks Nec fas nec licitum est Regis corpori manus inferre It is not permitted by the Laws of God or Man to offer violence to the person of a King But as the same Plutarch in another place tells us The principal part of valour is to save him that saves all If the Eye observe a blow threatning the Head the Hand being instructed by Nature interposeth it self as preferring the safety of the Head whereupon all the other members depend before their own Wherefore as Cassiodore notes De Amicitia He that with the loss of his own life redeems the life of his Prince doth well We are to prefer his life before our own if in so doing he propose to himself the freeing of his own soul rather than that of another mans body for as Conscience teacheth him to express his fidelity to his Soveraign so doth right reason instruct him to prefer the life of his Prince before the safety of his own body But here a more difficult question ariseth as namely whether what was lawful for David and the Maccabees Whether Davids example and the Maccabees be sufficient to justifie Christians in like cases 1 Pet. 4.12 13 14 15 16. Christs advice is to flee where the duties of our calling will permit but beyond that nothing be likewise lawful for us Christians Or whether Christ who so often enjoyns us to take up our Cross do not require from us a greater measure of patience Surely where our Superiors threaten us with death upon the account of Religion our Saviour advised such as are not obliged by the necessary duties of their calling to reside in any one place to flee but beyond this nothing St. Peter tells us That Christ in suffering left us an ensample who though he knew no sin nor had any guile found in his mouth yet being reviled he reviled not again when he suffered he threatned not but remitted his cause to him that judgeth righteously Nay he adviseth us to give thanks unto God and to rejoyce when we suffer persecution for our Religion And we may read how mightily Christian Religion hath grown and been advanced by this admirable gift of patience wherefore how injurious to those ancient Christians who living in or near the times of either the Apostles themselves or men truly Apostolical must needs be well instructed in their Discipline and consequently walked more exactly according to their rules yet suffered death for their Faith how injurious I say to these men are they who hold that they wanted not a will to resist but rather a power to defend themselves at the approach of death Surely Tertullian had never been so imprudent nay impudent as so confidently to have affirmed such an untruth So Tertullian whereof he knew the Emperor could not be ignorant when he wrote thus unto him If we had a will to take our private revenge or to act as publick Enemies could we want either numbers of Men or stores of warlike Provisions Are the Moors Germans Parthians or the People of any one Nation more than those of the whole World We though Strangers yet do fill all places in your Dominions your Cities Islands Castles Forts Assemblies your very Camps Tribes Courts Palaces Senates only your Temples we leave to your selves For what war have not we always declared our selves fit and ready though in numbers of men we have sometimes been very unequal How cometh it then to pass that we suffer death so meekly so patiently but that we are instructed by our Religion that it is much better to be killed than to kill Cyprian also treading in his Masters steps openly declares That it was from the Principles of their Religion that Christians being apprehended made no resistance nor attempted any revenge for injuries unjustly done them though they wanted neither numbers of men nor other means to have resisted But it was their confidence of some Divine Vengeance that would fall upon their Persecutors that made them thus patient Lib. 5. and that perswaded the Innocent to give way to the Nocent So Lactantius We are willing to confide in the Majesty of God who is able as well to revenge the contempt done to himself as the injuries and hardships done unto us Wherefore though our sufferings be such as cannot be exprest yet do we not mutter a word of discontent but refer our selves wholly to him who judgeth righteously Lib. 6. Qu. 10. in Joshua And to the same Tune sings St. Augustin When Princes err they
late to help it This in all Cities is observed as an Oracle That in times of Peace they ever provide for War and in times of War they lay the foundations of a firm and lasting Peace we should neither place too much confidence in our friends because they may prove our enemies neither should we appear too diffident of our enemies because they may hereafter prove our friends But if the hopes of our enemies conversion cannot prevail with us to do them civil offices yet let us remember That there is no hostility at all against us in those things which an enemies Country produceth For all things there are serviceable all things profitable all things pleasureable or very necessary to our selves All its fruits affording unto us either nourishment or somewhat that is equivalent unto it Again Non opportet Bellum inferre Belli nesciis We ought not to make War upon those things that are so amicable so innocent that they know not what War means To burn cut down and utterly to extirpate those things which Nature by heat from above and moisture from beneath hath so tenderly brought up and nourished to no other end but to pay their yearly Tribute unto men as unto Kings savours of too much inhumanity Thus far Philo wherewith agrees that of Josephus If Trees saith he could speak they would certainly upbraid us with injustice for inflicting upon them the plagues and miseries of War who are in no wise guilty of the causes thereof Neither hath that Saying of Pythagoras any other ground than this where he tells us That to cut down or to hurt tender Plants or Trees that bear Fruit is a sin against Nature and not justifiable before God De non edendis lib. 4. Porphyry likewise describing the manners of the Jews taking as I suppose their Customs to be the best Interpreters of their Laws extends this Custom or Law to all Beasts that are serviceable for Tillage Their Talmuds and their Interpreters do yet stretch out this Law somewhat farther even to all things that may causelesly perish as the firing of Houses the poysoning of Springs or the spoiling of any thing that may afford nourishment to Mankind unless it be such Trees or Houses as being near unto the Walls may thereby hinder Souldiers in the performance of their Military Duties Agreeable with this Law was that prudent moderation of the Athenian General De Repub. l. 5. Timotheus Who would not suffer his Souldiers to destroy any House or Village nor cut down any Plant that bare Fruit. There is the like Law extant in Plato prohibiting the laying of any Lands waste or the demolishing of any Houses And if we may not waste the Country of an Enemy much less when by Conquest we have made it our own Offic. l. 1. Cicero did not approve of the demolishing of Corinth though the Citizens had unhandsomly treated the Roman Ambassadours And in another place he calls that War an ugly Pro domo sua horrid and malicious War that was made against Houses Walls Pillars and Posts Livy highly commends the lenity of the Romans for that having taken Capua Lib. 26. they did not pull down the Walls nor set on fire the innocent Houses There is a most excellent Epistle upon this Argument extant in Procopius which Belisarius writes to Totilas It hath been saith he reputed in former Ages the Glory of wise men to raise fair and magnificent Structures to preserve their Names and Memories but to rase and demolish them being built was ever esteemed the badge of folly and madness as not blushing to transmit to Posterity the Monuments of their own vileness It is confest by all men That Rome is the most magnificent and beautiful City of all that the Sun beholds Neither did it arise to this height of splendour by the bounty or industry of any one man or in few years but many Kings and Emperours and a vast series or succession of Noble-men many Ages and a stupendious Mass of Treasure have drawn hither as other things so the most expert Artificers in the World whereby having by little and little brought this City to that perfection wherein we now see it they have bequeathed it to future Ages as an everlasting Monument of their Vertue and Magnanimity wherefore to rase this City were to be injurious to Mankind in all Ages to our Ancestors in sacrilegiously burying in its Ruines the memory of their noble Acts to our Posterity enviously depriving them of the very sight of those noble Structures whereby they may be excited to the imitation of their Vertues And if it be thus then consider that one of these two must necessarily fall out either the Emperour must vanquish or you If you be Conquerour then in destroying this City you destroy not what is your Enemies but your own and in preserving it you enjoy the richest and most beautiful place on the Earth But in case thou be worsted thy clemency in preserving this great City shall plead strongly to the Emperour for mercy but in destroying it all hopes of favour lye buried in the ruines of it and thou shalt not only lose whatever thou canst gain by the Spoil but an eternal brand of shame and infamy shall cleave unto thy Name throughout all Ages according to thy dealings herein For fame is equally ready to report either good or evil of us Potentum quales sunt actiones talis existimatio According to the lives and actions of Grandees so is their fame to the Worlds end Thus far Procopius It is true Josh 6. 2 Kings 3.19 that God himself in the sacred Scriptures did not only command that some Cities should be destroyed by fire but also that the Trees of the Moabites contrary to this General Rule should be cut down But this was not done out of an hostile malice but out of a pure detestation of their sins which were either publickly known to deserve such a punishment or at least were so reputed in Gods account III. If there be great hopes of Victory Secondly We should forbear to waste an enemies Country where the possession of it is in question especially if there be any probable hopes of a speedy Victory whereby both the Land and the profits thereof are likely to become the reward of the Conqueror So Alexander the Great as Justine tells us prohibited his Souldiers from depopulating Asia telling them That they ought rather carefully to preserve their own and not to destroy that which they came to possess Thus Gelimer with his Vandals besieging the City Carthage Proc. Vand. 2. made no spoil nor took any pillage but secured the Country to himself as his own The like Speech I find in Helmoldus Nonne Terra quam devastamus nostra est Lib. 1. c. 66. Is not the Land that we waste ours and the people whom we destroy our Subjects Wherefore then are we become Enemies to our sâ—lves wherefore do we drive away those
instantly canonized for virtue and valour It is true indeed That War being undertaken by publick Authority like the definitive Sentence of a Judge hath some effects of Râ—ght whereof more anon But yet are they not altogether blameless unless there be a just cause to warrant it Thus was Alexander for invading the Persians and other Nations without cause given deservedly censured by the Scythians in Curtius and elsewhere by Seneca for a Robber and by Lucan for a Thief by the wise men of India as a Scourge to all Nations and the common pest of mankind and before that by a Pirate for the greater Pirate of the two So Justin speaking of his Father Philip saith That two Kings of Thrace were thrust out and deprived of their Kingdoms through the fraud and villany of a Thief Whereunto we may likewise refer that of St. Augustin Remotâ Justitiâ quid sunt Regna nisi magna Latrocinia Take away Justice and what are Kingdoms but great Robberies With whom accords that of Lactantius Inanis gloriae specie capti sceleribus suis virtutis nomen imponunt Being blinded with self-love and vain glory they miscal all their vices vertues Nor was Justin Martyr much amiss when he said What Thieves do in desert places the very same do such Princes who prefer Opinion before Truth Now other just causes of making war there can be none but injuries So St. Augustin The wrongs done on the one side make the war done on the other side just So also saith the Roman Herald I do testifie and declare that such a people are unjust and have not done us right thereby intimating that the people of Rome might justly make war upon them II. War made 1. For Defence 2. For Redemption 3. For Punishment lawful Now look how many causes there are of civil Actions so many there are of a just war for Vbi desinunt Judicia incipit Bellum Where Judgments cease War begins Now at the Law Suits arise either for prevention of Injuries not yet done as when Cautions and Securities are required that no acts of violence shall be offered nor any damages done us or for injuries already done as namely that they may be recompenced or the person injuring punished But as to that which comes under the notion of Reparation it refers either to that which is or was ours from whence arise vindications and some personal Actions or to something that is owing and justly due unto us whether by some contract or agreement or for some hurt done unto us or by the Law whither also we are to refer those things which are said to arise as if they were due by contract or by some wrong done unto us from which heads arise the other condictions That which concerns Facts to be punished requires First An Accusation Secondly Courts of Judgment Most men assign three just causes of a War namely for Defence for recovery of what is ours and for punishment which three we shall find summ'd up by Camillus in his denouncing War against the Gaules Omnia quae defendi repetique ulcisci fas sit All which may lawfully be defended recovered and revenged In which enumeration unless we take the word Recovered in its larger signification it will not include the exacting of that which is due unto us which was not omitted by Plato when he said That war might be justly made not only when a man is oppressed by violence or when he is pillaged but when he is fraudulently dealt with and so deceived of what is his due Wherewith accords that of Seneca Aequissima vox est jus Gentium prâ— se ferens Redde quod debes 〈◊〉 hâ—râ—s 〈…〉 4. Tâ—â— is a righteous saying and consonant to the Law of Nations Pay what thou â—â—â—st And 〈…〉 a clause always inserted in that form used by the Roman Heralds Quas â—ec 〈…〉 solverunt nec fecerunt quas dari fieri solvi oportuâ—â— That they neither gave 〈…〉 what they ought to have given paid and done So likewise Sâ—lust in his History â—â—re 〈◊〉 tium res repeto According to the Law of Nations I require what is mine own A◠〈◊〉 Servâ—â—s 〈◊〉 Virgils Aeneads tells us That When the King of the Heralds was sent to denounce war 〈…〉 to the borders of the enemies Country and after some ceremonies cryed out with a loud voice Tâ—â—â— he denounced War against them for such or such causes either because they had wronged theiâ— Aâ—sociates or because they had not restored something unjustly taken away or that they had not delivered up offenders to be punished And when St. Augustin saith 10 Quest upon Jâ—s That just Wars are usuâ—lly thus defined Quae ulciscuntur injurias Which revengeth injuries He takes the word to revenge in its general signification for that which includes also To take away as may â—ppear by the words following which do not express an enumeration of parts but an illustration by examples So That Nation saith he or City may by Arms be assaulted wâ—ich shall neglect either to punish their own Subjects for injuries by them donâ— or to r store that wâ—ich by force was taken away And by this light of Nature it was War dâ—fensive that the King of the Inâ—â—e◠〈◊〉 Diodorus relates accused Semiramis for the breach of the Law of Nations for â—â—king war upon him without any injury at all done her For as Josephus saith Aâ—â— l. 17. They that 〈…〉 to them that live peaceably do but enforce them into Arms to defeâ—d themselves Liâ—â— l. 5. â—â—â—s do the Romans plead with the Senones that they ought not to have invaded them iâ—â—â—â— no wâ—ys wronged them For men saith Aristotle do not usually make war but upon thâ—m wâ—o â—â—vâ—â—â—st injured them As Curtius testifies of the Abian Scythians Lib. 2. the most innocenâ— of all the â—â—rbarians Armis abstinebant nisi lacessiti They never made waâ— unless highly pâ—oâ—â—â—â—â— And Plutarch of Hercules That being throughly provoked he subdued all in his own defence The first cause then of a just war are injuries not yet done that threatens immiâ—â—â—â— dâ—â—ger to our Persons or our Estates III. War in defence of our selves lawful That it is lawful for us to destroy him by war that would otherwise destroy uâ— oâ—â—t least draw us into imminent peril of our lives hath already been proved Now it is to be observed That this right of defending our selves doth principally and primarily arise not from the malicious attempt of the Aggressor but from the right that Nature gives unto every creature to preserve it self So that although he by whom our lives are so endangered be without blame as the Souldier in doing but his duty or haply a man mistaking me for another or being mad or in a dream as we have read of some to whom it hath thus happened yet shall not my right to defend my self be thereby taken away For to justifie me it sufficeth that I am not
bound to suffer that which he attempts to do against me no more than if a wild beast should attempt to worry me IV. Yet against the Aggressor only But what if some innocent persons are so interposed that I cannot preserve mine own life either by flight or just defence unless I either kill or trample upon them may I justly do it There are some even among Divines that hold I may †Cajet 2. 2. Art 6 7 q. 2. And certainly if we hearken to the dictates of Nature alone she will perswade us to prefer our own safety before our respect to society But the Law of Charity especially the Evangelical Law which commands us to love our Neighbour as our selves doth not permit it It was notwithstanding very well said of Aquinas if it be rightly understood 2. 2. q. 64. Art â— that in a true defensive war we do not intentionally kill others not but that it may sometimes be lawful if all other means of safety fail to do that purposely whereby the Aggressor may die But that this death was not our choice nor intended primarily as in capital punishments but our last and only refuge there being no other visible means then left to preserve our own lives but by killing him that seeks to kill us nay and even then he that is thus violently assaulted ought to wish rather that some other thing would happen whereby the Aggressor might be either affrighted or some ways disabled than that he should be killed V. And where the dangers are certain and imminent and not opinionative only It is also here required that the danger be present and ready instantly to fall upon usâ— As when a man shall furiously assault another with a drawn Sword or snatch up any weapon with a manifest purpose to kill him I confess that in this case he may lawfully by way of prevention kill him Thus Phrynichus in Thucydides pleads * Tâ—â—cydides l. 8. He must needs be void of malice who being reduced by them into so great jeopardy did attempt this or that or any way to free himself rather than suffer himself to be destroyed by those malicious men For as well in Morals as Naturals it is not possible to find a point without some latitude but they are much mistaken and so apt to mislead others who think their own fears how ever occasioned sufficient to justifie the killing of any man by way of pre-occupation as though it were in their own defence For it was well said of Cicero De off lib. 1. That many inconveniences do usually arise from vain and idle fears and much mischief we oft-times do unto others whilst we fansie that the like was intended against us So Clearchus in Xenophon I have known many so far transported either through calumny or suspicion against those they fâ—ared that chusing rather to prevent dangers than to undergo them they have most miserably afflicted those who never intended them hurt nor entertained a thought of evil against them To the same purpose is that of Cato in his Oration for the Rhodians What we object that they intended to have done against us shall we by way of Anticipation do against them It was notably said by Aulus Gellius To Gladiators preparing for fight this was the condition proposed either to kill his Adversary or to be killed by him But the life of man saith he is not beset with such hard and unavoidable necessities as that thou must either do or suffer wrong inevitably For as the same Cicero speaks in another place Who did ever enact such a Law or what Common-wealth could ever without manifest danger to it self so much as tolerate so great an inconvenience as that one man might lawfully kill another and then justifie the fact by his own unnecessary fears as namely lest otherwise he should have been killed by him Very apposite whereunto is that of Thucydides Lib. 1. What is to come is as yet in the Clouds uncertain whether it will fall or not neither ought any man to be so far incensed thereby as to undertake a present and certain war for that which is as yet future and so uncertain And in another place elegantly describing the many inconveniences that were likely to ensue upon those seditions which then began to vex the Graecian Cities adds this as one That they strove which of them should first commit those villanies Lib. 3. which they feared another would do before them Caesar when he had possest himself of the Common-wealth pleaded in his own defence That it was the fear of his Adversaries that had enforced him thereunto Cavendo ne metuant homines metuendos ultro se efficiunt c. saith Livy Lib. 3. Pretending to free themselves and their Country from the fear of other men they voluntarily made themselves formidable and as if there had been a necessity of either doing or suffering wrong we ease our selves of our burdens but oppress others But against these that saying of Vibius Crispius so much celebrated by Quintilian may be well applyed Quis te sic timere permisit Who permitted thee thus to fear Or that of Livia in Dion Infamiam eos non effugere qui facinus quod timent occupant They can never wipe off the stain from their honours who commit that wickedness which they fear another would act before them But what if the dangers that threaten us be not imminent but future by conspiracy or by treachery as by poison or false accusation or by false witnesses to procure an unjust Sentence or the like I deny that in such cases it is lawful to kill any man that is if either the danger may by any other means be avoided or that it be not sufficiently clear that it cannot otherways be avoided For commonly delays afford us many remedies and produce many accidents which are unexpected whereby these dangers may be avoided Inter os offam as it were between the Cup and the Lip Although there be many I know both Lawyers and Divines that give a larger Indulgence in these cases yet this other opinion doth not want the defence of good Authors as being indeed the better and safer of the two VI. Or for the defence of our Limbs But what if the danger threaten the maiming of our limbs only Surely since the loss of a limb especially if it be any of the principals is very grievous and equivalent to the loss of life it self and such also as may bring us into the danger of death if it cannot be otherwise avoided he that shall certainly endanger it may lawfully be killed VII Or for the defence of our Chastity And without doubt the same may be done in defence of our chastity seeing that not only in the general repute of the world but by the Law of God himself Chastity is aequi-ballanced with life The Law saith St. Augustin gives power to the Traveller to kill the Thief who would otherwise