his time and those sayings that are there rehearsed as spoken to them of old were meant as spoken by Moses himself not by the Lawyers either in the same words Exod. 20.13 Lâ—vit 20.21 Exod. 20.14 Deut. 24.1 Exod. 20. â— Lev. 24.20.19.18 Exod. 34.2 Deut. 7.1 Exod. 27.19 or to that sense as Thou shalt not kill whosoever killeth shall be in danger of judgment Thou shalt not commit adultery whosoever shall put away his Wife let him give her a Writing of Divorcement Thou shalt not forswear thy self thou shalt perform unto the Lord thine oaths An eye for an eye and a tooth for a tooth that is thou mayst exact this in judgment so thou shalt love thy Neighbour that is an Israelite and hate thine enemy that is those seven Nations with whom they were forbidden to contract friendship or to whom they ought to shew no mercy unto whom we may add the Amalekites with whom they were bound to have a perpetual war Deut. 25.19 Now the better to understand the words of Christ we must necessarily understand that the Law given by Moses will admit of a twofold construction either in such a sense A twofold sence of Moses his Law Carnal as is common with all humane Laws namely as it restrains men from gross sins by the fear of publick punishments Heb. 2.2 And so it was given by Moses to restrain the Hebrews in the state of a Civil Government Heb. 7.16 Where it is called the Law of a carnal Commandment as it is also in another place called the Law of Works Rom. 3.27 Rom. 3.27 Or it is taken in a sense more proper to a Divine Law namely as it requires also the purity of the mind and such duties the omission whereof no humane Laws do punish In which sense it is called a spiritual Law Rom. 7.14 Spiritual Comforting the soul Psal 19.9 which the Latins make the 18th The Pharisees and Lawyers contenting themselves with the Carnal part of the Law wholly neglected the spiritual as superfluous and therefore never instructed the people therein as not our own writers only but Josephus and many of their own Doctors do testifie against them But as to the spiritual part also we must know That those vertues which are required from us Christians were either commanded or commended unto the Hebrews also although not in that degree and Latitude as they are unto us which we have already proved For a more perfect and exact obedience is now required from us Supra ch ◠§. ult than was formerly from the Jews because the coming of Christ doth heighten our hopes by far more precious promises And the graces of his spirit which descended unto them but as a little dew upon the Herbs falls on us as showers on the Grass Chrysost de virg c. 44. Vnder the Law God did not bind us up to so great a measure of vertue as hâ—â—ow doth under the Gospel then it was permitted to take some revenge for injuries done as to revile them that reviled us we might exact an eye for an eye a tooth for a tooth it was then permitted unto us to swear though not to for swear and to hate our enemies It was not as yet forbidden to be angry to put away a Wife that offended us or to marry another nay nor to have diverse at the same time Great was the Indulgence of the Old Law in these and the like cases But since the coming of Christ the way to heaven is made much straiter and narrower than before both by the addition of many new precepts not given in the old Law and also by straining up those that were so given to a much higher Key Christ therefore opposeth his own doctrine to the doctrine of the ancients in both these senses first because his own took not hold of the outward man only to restrain it by pure negatives as other Laws did but restrained the inward man also obliging to positive duties whose omission was not punishable by Moses his Law But also in the second place because it enjoyned spiritual duties in that heighth of degree that neither Moses nor any other Law-giver did ever reach whence it is plain that what Christ delivered was not a bare interpretation of Moses his Law as some would have it But yet that these things should be known is not only pertinent to the matter in hand but to many other purposes lest we should attribute greater authority to Moses his Law than indeed is fit or due unto it VII That it is not repugnant to the Gospel to make War Omitting such arguments as are less convincing the first and principal Testimony whereby it may easily be proved that all right of making War is not fully taken away by the Evangelical Law is that of St. Paul to Timothy I exhort you saith St. Paul that above all things Prayers and suplications Intercessions and giving of thanks be made for all men for Kings and such as are in authority 1 Tim. 2.1 2 3. that we may lead a quiet and peaceable life in all Godliness and honesty for this is good and acceptable in the sight of God our Saviour who would have all men to be saved and to come to the knowledge of the truth From whence these three things are to be learned first that it is acceptable unto God that Kings be made Christians Arg. 1 Secondly that being made so yet they cease not to be Kings Which Justin Martyr thus expresseth We pray saith he that Kings and Princes may together with their Regal Power retain a sound and perfect mind And this also in the third place we may learn that Christian Kings should use their utmost endeavours That other Christians may lead under them godly and Christian lives But you will happily say How Surely the same Apostle explains himself elsewhere thus He is the Minister of God for thy good and if thou do ill then fear The right of the Sword Non enim frustra gladium gerit For he beareth not the sword in vain for he is Gods Minister an avenger to execute wrath upon them that do evil Under the right of the Sword is comprehended all manner of restraining or coercive authority and so it is also sometimes understood by Lawyers yet so that the chief and principal part that is the true and proper use of the Sword is not excluded Psalm 2. The Second Psalm doth very much conduce to the understanding of this power which Psalm though verified of David yet was much fuller and clearer understood of Christ as we may collect out of Acts 4.25 and Acts 13.33 and out of Heb. 5.5 Now that Psalm exhorts all Kings to kiss the Son of God with reverence How Kings serve God as Kings that is to express themselves his servants as they are Kings for so St. Aug. rightly expounds that place whose very words as being pertinent to our purpose sound thus Herein saith he do
is but the overflowings of a good nature Mercy Judgment and Righteousness distinguisht such are good works done meerly out of bounty and munificence Secondly To perform what we are strictly bound to do which the Hebrews call judgment but to do that which in honesty and Conscience only we ought to do this they call Righteousness or Equity Which three some Expositors upon that of Mat. 23.23 render by mercy judgment and fidelity whereby the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the Greeks do commonly understand Righteousness and by the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 judgment that which we are strictly obliged to do as we may find 1 Mac. 7.18 32. Moreover a man may be said to be civilly obliged by his own act either in this sense that the Obligation spring not from the mere Right of Nature but from a Civil Right or from both or in such a sense as that an action at the Civil Law may lie against him We conclude therefore that from the Covenants and Promises which a King makes with his people there may arise such a true and proper Obligation as may confer a Right unto them For such is the Nature both of Promises and Contracts even between God and Men as we have shewed already If the acts of a King be such as may be done by any other man the Civil Laws shall bind him but if they be such as are done by him merely as a King the Civil Laws do not reach him which difference was not by Vasquius sufficiently observed Nevertheless an action may arise from either of these acts so far forth as to evidence the Right of the Creditor but no enforcement there can be by reason of the quality or condition of the adverse party For that Subjects should compel him whose Subjects they are is not lawful which Equals may do against Equals by the Right of nature and Superiours against Inferiours by the Civil Laws VII How a Right gained by Subjects may lawfully be taken from them But this also must be noted that a King may take away the Right of his Subjects two ways either by way of punishment or by Vertue of his Soveraign Power But if he do it this latter way it must be in the first place for some publick profit and then also the Subject must receive if it be possible a just satisfaction out of the Common stock for the loss he shall sustain this therefore as it holds in other things so also in that Right that is gained by either Promise or Contract VIII The distinction of things gained by the Natural and Civil Law rejected Neither doth it make any alteration in the case whether the Right of the Subject were acquired by the Law of Nature or by the Civil Law For the King hath an equal Right to both nor can either of them be taken away from the Subject without cause For it is against natural Right that what Dominion or other Right a man hath lawfully gained to himself he should be causelesly deprived of And if a King should do it he ought without doubt to make restitution and to repair the damage that the Subject hath sustained because he doth thereby violate the true Right of his Subject And herein is the Right of Strangers much different from that of Subjects for the Right of Strangers and of such as in no respect are Subjects can by no means be under that supereminent Dominion of a King as the Rights of Subjects are for the publick good unless by way of Punishment whereof hereafter IX The Contracts of Kings whether they be Laws and when From whence we may collect upon how sandy a Foundation they build who hold all the Contracts of Kings to be Laws For from the Laws there ariseth no Right against a King to any man Therefore if the King should think fit to repeal those Laws he cannot be said to injure any man Yet if he do it without good cause he gives just cause of offence But from Promises and Contracts a man may claim a Right For by Contracts the Contractors only are bound but by the Laws all that are Subjects Yet may some things be of a mixt nature Partly by Contracts and partly by the Laws as when a King contracts with a Neighbour King or with Farmers of his Revenues which he presently proclaims a Law so far forth as it contains what is by his Subjects to be observed X. How by the Contract of a King his Heirs may stand bound Let us now proceed to the Successors concerning whom we are to distinguish between those that are to inherit all the goods of the deceased King together with his Kingdom as he that receives a Patrimonial Kingdom either by his Testament or from an Intestate and between those that succeed in the Kingdom only either by a new Election or by Prescript and that either in imitation of other vulgar inheritances or otherwise or whether they succeed by any mixt Right For they that inherit all the goods with the Kingdom are without doubt obliged to perform all the Contracts and Promises of the deceased King And that the goods of the deceased should stand obliged for his personal Debts is as ancient as Dominion it self XI And how his Successors But how far they that succeed to the Kingdom only or to the goods in part but to the Kingdom entirely are obliged by the Covenants and Contracts of their Predecessors is as worthy to be discust as it hath hitherto been confusedly handled They that succeed in the Kingdom but not as Heirs are not immediately bound by the Covenants and Contracts of their Predecessors because the Title they have they receive not from him but from the people whether that Succession fall like other vulgar inheritances to him that is nearest of kinn to the deceased or to those that are more remote But mediately i. e. by the City that chose him such Successors also are bound which shall be thus understood Every Society no less than every particular person hath a power to oblige it self either by it self or by its Major part This Right every Society may transfer either expresly or by necessary consequence that is by transferring the Empire for in Morals he that gives the end gives all things conducing to the end XII And how far And yet should not this be boundless neither is it at all necessary to the good Government of a Nation that this obliging power should be infinite no more than that of a Guardian is but so far forth only as the Nature of that power requires Tutor Domini loco habetur cum rem administrat non cum pupillum spoliat The Guardian saith Julian hath a power equal to the Lord whilest he orders the estate prudently but not when he wastes it And in this sense is that of Vlpian to be understood Every Society shall be bound by the acts of their Governours be the agreement profitable or damagable to that Society yet
not so much to consider whether we have been justly provoked or no as whether the injuries we have sustained be such as will counterballance the expence of so much blood and treasure as will be expended in the prosecution of a War for satisfaction II. Especially when undertaken for punishment only There are many arguments whereby we may be disswaded from exacting punishments For first we see how many failings Parents are willing to wink at in their Children A Father saith Seneca * Sen. de clem l. 1. c. 14. unless highly provoked by many and those hainous offences so that his fears swell higher than his just anger will not proceed against his Son with the utmost rigour and severity Augustus sitting in Council with a Father concerning a punishment to be inflicted on his Son being found guilty of an intended Parricide would not adjudge him to the Sack the Serpent or to Prison but to banishment only whither his Father pleased respecting not so much the person offending as the person offended as knowing that gentle punishments would best appease the wrath of a Father towards his own son Pro peccato magno paullulum supplicii satis est patri Few stripes for great faults Parents will appease Fathers saith Philo do sometimes pass that sentence of exheredation on their own sons 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 thereby cutting them off from their own families and kindred but never untill they grow shamelesly and incorrigibly wicked and that their hatred of their Childrens Vices have quite overcome that great and unparallell'd Love which Nature had at first imprinted in them Not much different is that of Phinehas in Diodorus No Father doth willingly punish his Sons Lib. 5. unless the measure of their wickedness do very much exceed the measure of his natural affection Nor that of Andronicus Rhodius No Father can be so unnatural as to cast of his Son if he be not extremely wicked Now whosoever undertakes to punish another assumes unto himself in a manner the person and office of a Governour that is of a Father whereunto St. Augustine alludes when he thus bespake Marcellinus Perform O thou Christian Judge the office of a pious Father who always prefers pardon before punishment Ep. 87. A merciful man saith Seneca is as unwilling to spill another mans blood as he is to spill his own knowing that nature in every man is equally solicitous to preserve its being And therefore It befits men Diod Sic. in fragm who are linkt together by the bands of Consanguinity to be as sparing of other mens lives as of their own for not every man that offends is to be punished but they only that persist in their sins without repentance Let all men that are strangers to our faith saith Chrysostome know that the reverence which we bear unto Christ is so great that it restrains all earthly powers Servants are taught to honour their Masters and Masters to forgive their fellow Servants De Statâ—is l. â— that so our Great Lord and Master may be propitious unto us in that Great Day of Judgment It is usual in Scripture where mention is made of sins and punishments to allay one word with another and to a word that is likely to heighten our anger to add another that may serve to qualifie it If a man shall commit a trespass against his neighbour saith Moses which two words saith St. Augustine a man and a sinner are not conjoined without a Mystery but for this end Aug. citat à Gratian. causa 23. q. 4. Quia peccatur corripe quia homo miserere that if the sinner do exasperate us the word man should presently becalm us for as he is a sinner he deserves punishment but as he is a man he deserves to be pittied So in the new Law thou beholdest a mote in thy Brothers eye Matt. 7.13 A mote that offends us no less than it doth our Brother and our zeal is quickly inflamed to pull it out but when we consider that it is in the eye Vide supra c. 20. §. 12 26 36 and which is more in our Brothers eye then we go warily about it lest whilst we endeavour to pull out the mote we put out our Brothers eye So in another place If thy Brother offend thee Luk. 17.3 the offence provokes us presently to passion but when we consider that he who gives it is Frater our Brother that is quasi fere alter One cast in the same mold with us and scarcely divided from our selves this should instantly appease our swelling passion so that though angry we may be yet revenge we must not The Emperour Julian applauded that saying of Pittacus which prefered pardon before punishments Orat pro Antioch But whosoever will imitate his heavenly Father saith Libanius must glory more in forgiving than in punishing for in nothing do we draw nearer to the Divine Nature saith Cicero than in giving life to them who have deserved death Again such cases there may happen wherein to abstain from claiming our Right is not so much a courtesie as a debt in regard of that love which we owe unto all men though Enemies whether considered in it self or in obedience to the Law of Christ yea and some persons there are whose safety though they should persecute us we are bound to prefer even before our own lives because we know that their welfare is either very necessary or very profitable to the Commonwealth And if Christ did enjoin us to part with our Coat rather than to contend for our Cloak certainly he would have us to neglect much greater losses rather than go to War because there is no contest so destructive as War Sometime again the remedy brings more danger than the disease De off l. 2. c. 2. And as St. Ambrose observes to forego something of our just right is not only liberal but for the most part gainful Aristides exhorting the Grecian Cities to peace perswades them rather to yield than to quarrel for small matters In imitation of good men who had rather sit down with loss than go to Law for trifles And Xenophon will inform us That it is the part of a wise man not to embroil himself in War though for matters of great importance The like advice Apollonius gives unto Princes Graec. Hist l. 6. Not to engage in War though for great matters III. Especially by a King that is injured As concerning punishments our principal duty if not as men yet as Christians is willingly and readily to remit them as God in Christ doth unto us Eph. 4.32 Seneca concerning a good Prince saith That he is more ready to forgive injuries done against himself than those done against others for as a magnanimous person scorns to be bountiful of another mans purse but had rather detract from himself what he gives unto others so he only deserves the title of being merciful who bears his own injuries patiently and
peculiar to themselves to wit the Politicks which Aristotle rightly so handled by it self that he mixt nothing of any other Art with it whereas Bodine on the contrary confounds that Art with this of ours Yet in many places I have glanced at that which is profitable But on the by and only that I may the more clearly distinguish it from that which is just Whosoever thinks that I have any regard to the Controversies of this age either those already on foot or those that may be easily foreseen will arise do me wrong For I confess truly That as Mathematicians consider Forms abstracted from Bodies so I in treating of Right have withdrawn my mind from all singular facts As to the Stile His Stile I was unwilling to oppress my Reader with a multitude of Words added to a multitude of Things to be treated of whom my purpose is only to Instruct Therefore I chose rather to express my self in as plain and concise a way as I could as being most convenient for him that would Teach others That so they that are to transact Publick Affairs may at one view see both what kind of Controversies do usually arise and by what principles their Judgements may be guided to determine them Which once known it will be no difficult thing to fit their Discourses to the subject matter and to enlarge themselves upon it as they please I have also brought in the Ancients sometimes speaking their own words wheresoever they seem to be spoken either with some Gravity or with some singular Elegancy Which I have also sometimes done the Greeks But then especially when the Sentence was either brief or when I could not so gracefully translate it into Latine Which notwithstanding I have always subjoined for the benefit of those who are not expert in that Dialect The same Liberty that I have herein taken in judging of the Sentences and Writings of others the very same I say do I heartily beg and intreat all into whose hands this Book of mine shall come to take in judging of me and mine They shall not be more ready to Admonish me of mine Errors than I shall be to Retract them and to follow their Advice And even now at this present If there have fallen from me in this Treatise any thing that is dissonant to Piety to Good Manners to the Holy Scriptures if any thing disagreeing from the consent of the Catholick Church or from any Truth whatsoever I wish with all mine Heart it had never been spoken Hugo Grotius THE CHAPTERS Of the First BOOK I. WHat War is and what Right page 1 II. Whether it be lawful at any time to make War page 11 III. War divided into Publick and Private The Supream Power explained page 31 IV. Of War made by Subjects against their Superiours page 53 V. Who may lawfully make War page 66 The Chapters of the Second BOOK I. OF the Causes of War And first of War made in our own Defence page 69 II. Of such things wherein Men have a Right in Common page 78 III. Of Originary Acquisition of Things Of the Sea and Rivers page 88 IV. Of a Presumed Dereliction and the Occupancy following And wherein it differs from Prescription and Vsucapion page 97 V. How a Right over Persons was Originally gained Of the Right of Parents over their Children Of Matrimony Colledges or Societies Of the Right of Kings over Subjects of Masters over Servants page 103 VI. Of that Right that is derivatively acquired by the voluntary fact of a Man wherein is handled the Right of the Alienation of Empires and the things thereunto belonging page 118 VII Of that Right that is acquired by Law and of Succession from an Intestate page 121 VIII Of Dominion vulgarly said to be acquired by the Law of Nations page 134 IX How Empire and Dominion may cease page 141 X. What Obligation ariseth from Dominion page 146 XI Of Promises page 150 XII Of Contracts page 157 XIII Of Oaths page 166 XIV Of the Promises Contracts and Oaths of Soveraign Princes page 176 XV. Of Leagues and Sponsions page 181 XVI Of the Interpretation of Leagues c. page 236 XVII Of the Damage done to one man through the default of another And of the obligation thence arising page 200 XVIII Of the Right of Embassages page 205 XIX Of the Right of Burial page 213 XX. Of Punishments page 361 XXI Of the Communication of Punishments page 393 XXII Of Vnjust Causes of War page 404 XXIII Of the Causes of War that are doubtful page 410 XXIV War though Just not to be undertaken rashly page 416 XXV For what Causes War may be undertaken for Others page 422 XXVI How War may be Justly waged by such as are subject to anothers Command page 427 The Chapters of the Third BOOK I. CErtain General Rules shewing what by the Law of Nature may be lawful in War where also of Fraud and Lying page 433 II. How by the Law of Nations the Goods of Subjects may be obliged for the Debt of their Governours Where also of Reprizals page 446 III. Of a Just or solemn War according to the Law of Nations and of its Denominations page 450 IV. Of the Right of killing Enemies in a Solemn War and of other force on the body page 455 V. Of Spoil and Rapine committed in War page 465 VI. Of the Right to things taken in War page 468 VII Of the Right over Captives taken in War page 481 VIII Of Empire over the Vanquished page 485 IX Of Postliminy or the Right of such as return out of Captivity page 487 X. Admonitions concerning Things taken in an Unjust War page 494 XI Moderation to be used in the killing of Men in a Just War page 497 XII Moderation to be used in the Spoiling of an Enemies Countrey page 511 XIII Moderation concerning Things taken in War page 517 XIV Moderation concerning Captives page 519 XV. Moderation in the Acquiring of Empire page 524 XVI Moderation concerning Things that by the Law of Nations want te benefit of Postliminy page 528 XVII Of Neuters in War page 531 XVIII Concerning things Privately done in a Publick War page 534 XIX Concerning Faith to be kept with Enemies page 536 XX. Concerning the Publick Faith Treaties Lots Set Combates Arbitriments Surrenders Hostages Pledges page 543 XXI Of Faith during War of Truces Passes Safe-Conduct and Redemption of Prisoners page 557 XXII Concerning Faith given by Inferiour Commanders in War page 563 XXIII Of Faith given in War by Private Men page 566 XXIV Of Faith tacitely given page 569 XXV The Conclusion with Admonition to keep Faith and Peace page 571 Places of SCRIPTURE in this TREATISE either Explained Examined or Amended Genesis Gen. Ch. 1 Ver. 29 MAns Right p 78 Gen. Ch. 2 Ver. 17 The Tree of Knowledge of Good and Evil. p 79 Gen. Ch. 4 Ver. 14 24 Whosoever shall find me shall kill me p 15 Gen. Ch. 6 Ver. 4 Gyants p 79 Gen. Ch. 9
is that which governs any City Now a City is a compleat company of free-men associated for the defence of their own Rights and for their common profit That Law that is of lesser extent and ariseth not from the Civil Power though subject unto it is various comprehending under it that of a Father over his Children that of a Master over his Servants and the like That Law which is more extensive than that which is Civil is that of Nations which derives its authority from the joynt consent of all or at least of many Nations I say of many because there is hardly any Law besides that of Nature which also is usually called the Law of Nations that is common to all Nations yea oft-times that which is accounted the Law of Nations in one part of the world in another is not as we shall shew hereafter when we treat of Captivity and Postliminy Now the Law of Nations is proved in the same manner as the unwritten Civil Law is namely by continual use and the testimony of men skilful in the Laws and therefore Dio Chrysostome calls it the daughter of time and experience and to this purpose are the Annals of former ages of singular use XV. The Divine voluntary Law divided The divine voluntary Law is that which is warranted by the express will of God as may be understood by the very word it self whereby it is differenced from the naturall Law which in some sense may be termed Divine also And here that which was said by Anaxarchus in Plutarch though somewhat confusedly may take place namely That God doth not will things because they are just but things are therefore just that is rightly due because he wiâ—s them Now this Law was given by God either to all mankind or to one Nation to all mankind we find that God gave Laws thâ—iâ—e That this voluntary Divine Law was as obliging before the writing of it in â—ooks or Tables as it was or is since is clear for first if the obliging power were only from the time when it was written by Moses they that lived before Moses were no waies obliged by it because till then it was not written Secondly then the obligation must needs extend it self to all the parts of the Law so written and so to every circumstance of the Judaical Sabbath as well as to the acknowledgement of the only true God Neither is it sufficient to say it was written in the times of Adam and Noah it being uncertain unto us now whether there were so Ancient a Record or not much more * whether that which was written were as the Tables of the Law written by the finger of God * Dr. Hammond The Six Laws given by God to Adam and Noah as First that against strange and false worship Secondly that of blessing the name of God that is of adoring invocating and praising God Thirdly that of judgment that is of erecting of Magistrates and requiring administration of Justice Fourthly That of disclosing Nakedness i. e. setting bounds to lust and prohibiting Marriages within such degrees Fifthly That of shedding blood against Homicides And Sixthly That against Theft and Rapine and of doing to all as they would be done unto are no where recorded in holy Writ yet were they as obliging to the Jâ—ws that knew them as any of the written Laws of Moses we shall find them toucht at Act. 15.20 â—ut so surely that had it not been for those writings of the Jews that were never within their Canons nor in ours we of these times had never known to what that reference belonged And as all the Laws that were given to Adam Noah and the rest of the Patriarchs although not committed to writing nor traduced to us yet lost nothing of their obliging power to them to whom they were given so in the times of the new Law although Christ revealed much of his Fathers will in Sermons and other occasional discourses very few whereof are written and those that are were not so written until many years after his Resurrection yet will no man say that because they were not left written therefore they did not oblige his Auditors First Immediately after the Creation of man Secondly in the Restauration of mankind after the Floud and Thirdly in that more perfect reparation by Christ Tâ—ese three Laws do doubtless oblige all mankind as soon as and as far forth as men arrive at the knowledge of them XVI The Law given to the Jews did not oblige strangers Of all the Nations of the Earth there was but one to whom God vouchsafed to give Laws peculiar to themselves which was that of the Jews What Nation saith Moses so great to whom God hath given Statutes and judgements so righteous as this whole Law Deut. 4.7 So likwise Davia The Lord hath shewed his word unto Jacob his Statutes and ordinances unto Israel Non ita fecit genti ulli He hath not done so to any Nation neither have the Heathen knowledge of his Laws Psalm 147. Doubtless then those Jews and among them Tryphon himself in his disceptations against Justine do grosly err who hold That even Foreigners if they would be saved must submit to the yoke of the Mosaical Law For that Law binds none but those to whom it was given and who these are the Preface to the Law it self will plainly declare Audi Israel Hear O Israel saith the Text And every where we read that the Covenant was made with them and that they were chosen to be the peculiar people of God which Maimonides acknowledgeth to be true and proves it out of Deut. 33.4 But even amongst the Jews there always lived some Foreigners being holy men and such as feared God as the Syrophoenician Woman Mat. 15.22 Cornelius Acts 10.2 The Grecians mentioned Acts 18.4 whom they called the pious among the Gentiles such as are termed strangers Lev. 22.25 and a sojourner Lev. 25.47 whom the Chaldee Paraphrast calls an inhabitant that is uncircumcised whereof we may read Exod. 12.45 who was distinguished from a Proselyte who though a Foreigner yet was circumcised as appears bâ— comparing this place with that of Numb 9.14 These uncircumcised Sojourners Maimonides admits may be partakers of the blessings of the life to come St. Chrysostome upon the second to the Romans Rom. 2.9 10. where St Paul mentions the Jew and Gentile wrâ—tes thus What Jew and what Gentile doth St. Paul here mean surely those saith he that lived before Christ as Job the Ninevites Melchisedeck Cornelius c. And what Graecians doth he discourse of Surely not such as were Idolaters but such as worshipped God according to the Law of Nature who setting aside the Jewish Ceremonies religiously observed all things that appertained to an holy life And again The Graecian he calls not him that worshipped Idols but him that was pious and devout though be submitted not to the Jewish Rites And thus likewise doth he expound that of St. Paul To him
reis It is the duty of a Priest to interceed for the guilty saith Aug. And there is a right introduced by Custom That they that flee to the Altar for Sanctuary are not to be delivered up until faith be given for the saving of their lives and that such as were for misdemeanors delivered to Prison should at Easter be freely released but he that throughly perpends these and such like Customs shall find That they proceed rather from minds full fraught with Christian Charity which watcheth all opportunities and occasions to do good than from minds quarrelling at the equity of Capital punishments whence it was that the priviledges of those times and places yea and the very intercessions themselves were moderated with some exceptions as we may learn by Cassiodore But here some will object against us the 12th Canon of the Council of Nice Lib. 11. c. 40. 12 Can. of Nicen Council which sounds to this sence If any being by the grace of God called shall first express their faith by deserting the War and afterwards returning to their vomit shall by money or favor seek to be re-admitted into the War these after the three years allowed them to hear the word shall remain among the Penitentials for ten years But in this case a strict observation must be taken how such persons stand affected and what fruits of Repentance they bring forth for whosoever among them shall shew forth their sincere conversion by fear by tears by Patience and good works without dissimulation these fulfilling their three years of hearing shall at length communicate in prayers and afterwards it shall be lawful for the Bishop to deal more tenderly with them But if any of them shall bear it but indifferently and shall think that their very entrance into the Church is sufficient these shall fulfil their whole time Whereunto I answer that by the time of 13 years Penance we may collect That the sin was neither small nor dubious for so great a punishment must needs be inflicted for some Crimes that were both to God abominable and to all good men scandalous which without question was Idolatry For the words preceeding in the elventh Canon do manifestly referr us to the times of Licinius which gives a very great light to the understanding of the sense of this Canon This Licinius as Eusebius relates in his War against Constantine Hist Eccl. â— 10. c. 8. first turned all Christians out of their houses and made sale of their goods then drew out all the Christian Souldiers and Officers both out of his Armies and Cities from the rest and then commanded That unless they would of their own accord sacrifice to Devils they should all of them be cashiered from their Offices Which fact of his was afterwards imitated by Julian whereupon many renounced their commands and among them one Victricius so did 1104 more in Armenia under Dioclesian concerning whom there is honourable mention made in our Martyrologies and so in Aegypt did Menna and Hesychius So also in the times of Liciuius did many renounce their Commands amongst whom was Arsacius mentioned among the Confessors and one Auxentius afterwards made Bishop of Mopsuestia Now they that out of tenderness of Conscience had formerly renounced their Commands had no possible means to be re-admitted under Licinius but by a publick Abjuration of the Christian Faith wherefore as they that were so admitted committed much the greater sin being against knowledge and Consciâ—â—ce so they deserved a much greater punishment than those mentiâ—â—ed in the foregoing words of the Canon namely that without any danger either of life or goods had renounced their Christianity But to interpret this Canon so generally as if it comprehended all manner of going to War is infinitely against reason For the same Historian testifies That many of them that under Licinius had laid down their Arms and whilst Licinius Reigned did never reassume them because they would not abjure their faith in Christ being by Constantine left to their own choice were upon their request re-admitted There are likewise that urge against us the Epistle of Pope Leo where it is said to be against the Ecclesiastical Canons to return into a Secular War after the Act of Repentance But here we must understand That from Penitentiaries as well as from Priests and Monks there was required a more strict and austere course of life than what was required from other Christians That they might be as great examples to others of Contrition and Humiliation as they had been before of prevarication For as Leo well observes Illicitorum veniam postulantem oportet etiam multis licitis abstinere It is but just that he that begs pardon for his unlawful acts should abstain from some things otherwise lawful So in an Epistle wrote by some Bishops to King Lewis we read Quilibet tanto à se licita debet abscindere quantò se meminit illicita perpetrasse Every man ought so far to abridge himself of things lawful by how much he remembreth that he hath committed some things unlawful So in those ancient Customs of the Church which to gain the greater reverence are commended unto us under the name of the Apostles Canons It is decreed that no Bishop Priest or Deacon should addict himself to the War so as to retain the dignity of both Functions both Civil and Sacerdotal But leaving unto Caesar the things that are Caesars they should give unto God the things that are Gods Whereby it appears that they who were not thought worthy to be admitted to Ecclesiastical dignities were not interdicted those that were Military with this also That none who after Baptism had obtained any Office Civil or Military could be admitted into the Clergy As may also be collected from the several Epistles of Syncius Innocentius and from the Toletan Council For Clergy men were not chosen out of any sort of Christians but out of such as were likely to be exemplary unto others in austerity of life and manners Besides upon Military Officers as also upon some Civil Magistrates there lies a perpetual obligation But such as put themselves into Holy Orders ought not to be entangled with any other care nor diverted by any other daily Labour For which cause it was provided by the 6th Canon That no Bishop Priest or Deacon should take upon them any secular imployment nor thrust themselves into any publiclk Office And by the 6th Canon of the African Council Can. Apost 6.8 Vid Ep. Hier. ad nepot They were forbidden to be Sollicitors of other mens affairs or to defend other mens causes But that which gives the greatest reputation to our opinion is the judgement of the Church which we have set down in the third Canon of the first Council of Arles which was held under Constantine The words sound thus Concerning those that cast away their Arms in the time of peace it pleaseth the Synod that they should be debared from the Communion
ordinary course of Justice may be had Now Judgment ceaseth either for a while only or for continuance For a while when the Judge cannot be so long waited for without certain danger and damage Servius upon these words of Virgil Injicere manum parcae The Fates have snatcht him hence tells us That the Poet makes use of a Phrase borrowed from the Law for it is called Injectio manus the snatching away of a thing as it were by force when without attending the warrant of Authority we suddenly seize upon something that is our due which is usually done when the Laws do for a while cease And sometimes there is a total and continued cessation of Judgment and that either by Right or in Fact By Right as in places that are desert and unoccupied on the Seas and in Islands not inhabited and in any other such places wherein are not civil Societies In Fact as when Subjects do not regard the Sentence of the Judge or the Judge publickly refuses to examine the case Now what we said before namely that since publick Judicatories were established all Private Wars are not repugnant to the Law of Nature is clearly evinced by the Law given to the Jews Exod. 22.2 where God gives this charge by Moses If a Thief be found breaking up i. e. by night and be smitten that he dye there shall be no blood shed for him but if the Sun be risen upon him there shall be blood shed for him Certainly this Law so accurately distinguishing of the time when the offence was committed seems not only to induce an impunity but serves to explain even the Law of Nature being not so much grounded on any one particular Divine Precept as indeed upon common equity which guided other Nations also to do the like Solon's Law The old Attick Law was this If any man shall steal in the day time to above the value of fifty Drachmaes let him be tryed by eleven men But if a man shall steal to the smallest value in the night he may lawfully be killed This ancient Law of Solon doubtless occasioned that of the twelve Tables among the Romans Si nox furtum faxit Vide infra Bo. 2. ch 12. si furem aliquis occisit jure caesus esto If any man shall kill a Thief robbing in the night he shall be held innocent So by the Laws of all Nations that as yet we have known He that by Arms shall defend himself against him that attempts to take away his life is accounted guiltless which so plain a consent doth evidently assure us that there is nothing in it repugnant to the Law of Nature III. Neither is it repugnant to the Evangelical Law But whether this private war be justifiable by the more perfect Law of the Gospel is somewhat more doubtful I dare not but grant that Almighty God who hath a much greater power over lives than we have might have imposed upon us such an unlimited patience that even privately in a case of imminent danger we ought rather to be killed than to kill But whether it be his pleasure thus strictly to tye us up is the thing in question There are two places of Scripture that seem to favour the Affirmative which we quoted above when we handled the general question The former was that in the fifth of Mat. v. 39. Mat. 5.39 Resist not him that doth thee an injury And the latter that in the twelfth to the Rom. v. 19. Dearly Beloved Avenge not your selves which the Latin Translation renders Defend not your selves But a third may be added namely that of Christ to Peter Mat. 26.52 Put up thy Sword into the Sheath for they that take the Sword shall perish by the Sword Some there are likewise that urge the example of Christ himself who dyed for his enemies Rom. 5.8 10. Neither are there wanting among the Ancients some who although they do not disallow of publick War yet believed that all private even that which is defensive was forbidden Some places out of St. Ambrose for war we alledged above but many more and much clearer and more generally known may be produced out of St. Augustine In Luc. 10. But yet the same Ambrose in another place saith That haply therefore Christ said unto Peter when he shewed him two Swords It is enough As if till the Gospel came it had been lawful that so there might be as in the Law the doctrine of Equity so in the Gospel the doctrine of Verity De off l. 3. c. 3. And in another place he tells us That a Christian though assaulted by Robbers ought not to strike again Ne dum salutem defendit pietatem contaminet Lest whilst he seeks to preserve his own safety Lib. 1. de lib. Arb. 15. he sin against piety And St. Augustin himself speaking of Thieves and Robbers saith Legem quidem non reprehendo qua tales permittit interfici sed quomodo istos qui intersiciunt defendam non invenio The Law that adjudgeth these men to death Ep. 154. ad Publ. Cap. 43. 55. I disallow not but how to justifie the Executioners I find not And in another place But as to them that give advice that some men are to be put to death lest others by them should be destroyed I cannot subscribe unless he that kills him be either a Soldier or a publick Executioner who doth it not by his own but by publick Authority And of the same opinion was Basil as appears in his second Epistle to Amphilochius whereunto we may add the last Canon of the Council of Orleans C. 13. q. 2. cited by Gratian. But the opposite opinion as it is more Catholick so it seems to be more agreeable to truth namely That Christians are not obliged to such an height of patience We are indeed commanded by the Christian Law to love our Neighbours as our selves but not above our selves so that when we are both of us involved in the same or in equal danger we are no where forbid to preser our own safety before anothers as we have already proved by the Rules St. Paul gives to Christian Beneficence and which Cassiodore in the duties or offices of Friendship likewise confirms There is saith he neither Law nor Reason Cass de Anicitia that can oblige us to redeem another mans soul with the loss of our own or to procure the preservation of his body setting aside our hopes of eternal salvation with the certainty of our own ruine But if any man should object that we are bound to prefer our selves before others in dangers that are equal but not in such as are unequal and therefore I ought rather to give up mine own life than to suffer him that invades me to fall into eternal damnation To this we answer That it is probable that he that is assaulted may stand in as much need of time to repent in and that the Aggressor may also have
such wars publick For to the legitimating of such a War there must go as well the judgment of the Supreme Authority as other Rites and Ceremonies which the Law of Nations have made necessary Neither doth it at all stagger me that even in such wars the goods of such as make resistance are lawful prize and given to encourage the Soldiers for this doth not so peculiarly belong to a solemn war but that the same may be done in any other No Inferior Magistrate can make a Solemn War without special warrant Besides It frequently happens that in Empires of large extent the Lieutenants of Provinces are impowered by their Prince to begin a War which if so then it is all one as if the Supreme Magistrate had immediately done it Quod faciendi jus quis alii dat ejus ipse auctor censetur Look What right any man gives to another to do that he himself is reputed the Author of But that which admits of a larger dispute is Whether in case no such power be given the subordinate Magistrate by conjecturing at the will of his Prince may make War But this I cannot admit of for it sufficeth not to foresee what the will of the Prince would be in case he were consulted withal but we are to consider what a Prince would have a Magistrate to do without advising with him in case the matter be important and will admit of time enough for a serious debate if a general Law were to be made thereupon For though the reason that moves a Princes will being particularly inspected may in some particular fact cease yet the reason universally taken ceaseth not which is That all dangers should be timely prevented which could not possibly be if every inferiour Magistrate should assume unto himself the Right of making War On. Manlius was not therefore unjustly accused by his Lieutenants Liv. 48. that without order of the people of Rome he had made war against the Gallo-Graecians For although there were certain Legions of the Gauls in Antiochus his Army yet having concluded a League with Antiochus whether that injury were to have been revenged on the Gallo-Graecians was not in the choice of Cn. Manlius but of the people of Rome Cato's opinion was That Caesar should be delivered up to the Germans for making a War against them without order But as I believe not so much regarding the equity of the thing as indeed to free the City of the fear they had of so potent a Master for the Germans had given assistance to the Gauls being then enemies to the Romans and therefore had no reason to complain of any wrong done them in case that war with the Romans against the Gauls were just But Caesar should have been contented to have beaten the Germans out of Gallia which was the Province allotted to him and not have prosecuted the War into Germany without first consulting the people of Rome especially considering that there was no danger then imminent The Germans therefore could have no right to demand Caesar considering that they had given the Romans just cause to make War upon them but the Romans had just cause to punish Caesar for transgressing his Commission as the Carthaginian Embassador told the Romans plainly in the very like case I do not think it fit for you saith he to enquire whether Saguntum were besieged by the publick Edict of the City of Carthage or by the private Authority of our General but whether it were done justly or unjustly Liv. l. 31. For it concerns us only to call our own Subject to an account by whose order he did it The only dispute between us and you is Whether it might be done without breach of our League with you or not Cicero defends the fact both of Octavius and of Decimus Brutus who upon their own private judgments made war upon Anthony But although it had been as clear as the Sun that Anthony had deserved it yet should they have consulted the Senate and the people of Rome before they had begun it For although it were granted that the affront given did manifestly deserve an hostile invasion yet ought they to have expected the judgment of the Senate and People of Rome whether it had not been more expedient for the Common-wealth Though a just cause of War be given yet should it be left to the Superiors to judge whether it were safer at that time to have dissembled or to have revenged it Historians not always to be approved at that time to have dissembled it than to have revenged it to have treated with him about Articles of Peace than to have rush'd presently into Arms For no man ought to be compelled to pursue his own Right when it cannot be done without fear of a greater loss Besides Suppose that Anthony had been declared an enemy yet ought the Senate and People of Rome to have had their free choice under whose conduct that War should he carried on Thus the Rhodians answered Cassius demanding Agdes of them according to their League That they were ready to send them if the Senate should command them By this and the like examples for many such we shall meet with we may learn not to approve of every thing that Historians though of never so good fame seem to commend unto us For sometimes they are awed by fear sometimes byassed by affection sitting their Stories to their own occasions wherefore in such cases we should endeavour to be guided by our own uncorrupted Judgments and not rashly to make those Actions our Precedents which deserve rather to be excused than applauded whereby we may be drawn into pernicious errors Now whereas it hath been said That a publick War cannot justly be undertaken without the Authority of the Supreme Magistrate it will be necessary for the better understanding as well of this Question and of that of a Solemn War as of divers others to enquire what that Supreme Power is and in whom it rests And the rather because the Learned of this Age do not so well determine it for whilst each of them pursues this Argument rather according to present use and custom than according to truth they have rendred that which of it self was not very easie much more dark and obscure than it was before VI. The Civil Power what That Moral Power whereby Common-wealths are governed which Thucydides calls the Civil Power he describes by three things where he calls a City that is truly so 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is 1. That it should have a power to make or abolish Laws 2. That it should have a power to pass Judgments And 3. To create Magistrates or which the word will likewise bear to raise Taxes for every Common-wealth ought to have a Moral Power in these things Pol. l. 4. Aristotle divides the administration of this power into three parts The first is The consultation about things common as about Peace War Leagues to be either made
he refers to Optimacy as that of the Consuls which he refers to Monarchy were both of them subject to the power of the people Now the self same may be said in answer to all other the Opinions of those that write of Politicks who haply think it more agreeable to their purpose to gaze on the extern face and daily administration of the Soveraignty than unto the very Right of it it self XX. True examples Much more pertinent to the matter is that of Aristotle who saith That between a full and absolute Monarchy and that like unto the Laconian being but a meer Principality there are some of a Mixt kind whereof we have an example as I conceive in the Isâ—aelitish Kings who doubtless in most things governed by a full power Mixt Governments For such a King the people required as their Neighbour Nations had Supposing as Josephus testifies That if they were governed like unto their neighbours they should suffer no Inconveniencies not considering that all the Eastern Nations except themselves were under a Slavish Government So Atossa in Aeschylus speaking to the Persians of their King saith That he is not accountable to the City for what he did That of Virgil is well known Nor Aegypt nor vast Lydia Nor Medes nor Parthians thus their Kings obey Livy gives this Character of the Syrians and all the Asian people That they were a kind of men born to be Slaves Not much unlike is that of Apollonius in Philostratus The Assyrians and Medes do adore their Kings nor that of Aristotle Pol. l. 3. c. 14. All the Asians do patiently submit to Monarchy And to the same sense is that Civilis Batavus to the Gauls in Tacitus The Syrians and Asians might well serve Hist l. 4. because all the Oriental people were accustomed to be governed by Absolute Monarchs Not but that there were even at that time Kings also both in Germany and France but as the same Tacitus there observes All the Asian Kings Absolute They were such as governed for the most part in a Precarious way or as I said before more by a Perswasive than by a Coercive Power We observ'd before that the whole body of the people of Israel was under their King And Samuel describing the Government of Kings sufficiently proves That against the Injuries done by them there remained no power at all in the people either to resist or revenge Which the Ancients did rightly gather from those words of King David Tibi soli peccavi Vnto thee only have I sinned because as St. Hierom upon that place glosseth David being a King stood in fear of none but God as having no other Judge but him So likewise St. Ambrose David was a King and so subject to no Laws For Kings are Free from those shackles wherewith their Subjects crimes do entangle them They Fear no punishments being secured by the power of the Empire To Man therefore he sinned not because to him he was not accountable for his Actions Apposite to this is that of Vitiges in Cassiodore Causa regiae potestatis supernis est applicanda judiciis quandoquidem illa coelo petita est ita soli coelo debet Innocentiam The cause of a King is to be referred to Gods Tribunal for from whence he derives his power to him only he owes his Innocence And in cases of such oppressions God himself prescribes the only Remedy that the people can have against their Kings namely Prayers and Tears And ye shall cry out in that day because of the King whom ye have chosen 1 Sam. 8.18 He doth not encourage them to Rebel nor doth he prescribe any Legal way of proceeding against them only they may cry unto the Lord and if he heard them not they must suffer with patience Nor doth Samuel insinuate this to the Jews as if it were nudum factum that is That Kings abusing their power would do so but as if it were Jus Regium a Right proper to Kingly Government to do so The Jews themselves grant that if their Kings did transgress those Laws which Moses prescribed unto them they were to be beaten with Rods. But this was no reproach unto them neither was it by compulsion but by a voluntary susception as a sign of their penitence Nor was it done by any publick Officer but as he imposed it upon himself freely so he chose whom he pleased to do it and prescribed both the manner and measure of his own punishment But from all Coercive punishment their Kings were so free that even that Law of Excalciation Deut. 25.9 because it was not without some reproach was not in force against them Yet notwithstanding all this there were some Cases whereof their Kings had no Right at all to judge but they were reserved to the Great Sanhedrim or Council of the 70. Elders which being Instituted by Moses at Gods special Command continued by a perpetual supply of Election until the dayes of Herod For which cause Deut. 1.17 Pâ—al 82.1 6. they are by Moses and David frequently called Gods and their Judgement Gods Judgement And those Judges are likewise said to judge not for man but for God 2 Chron. 19.6 8. Nay there is a plain distinction made between the things of God and the things of the King 2 Chron. 19.11 where by the matters of the Lord as the most Learned among the Jews do interpret it are meant the Administring of Judgement according to the Laws of God That the Kings of Judah did by themselves sometimes inflict Capital punishments I cannot deny wherein Maimonides prefers those Kings before the Kings of Israel which is sufficiently cleared by many examples both in Holy Writ and also in other Hebrew Authors But yet the Cognizance of some Causes was not permitted unto them as that of the Tribes that of the High Priests that of a Prophet For it cannot be saith our Saviour that a Prophet perish out of Jerusalem Luke 13.33 And this is evident by the story of Jeremy whom when the Princes demanded to death the King answered them Behold he is in your power for against you the King can do nothing Jer. 38.5 Jer. 38.5 Yea and in another place he that was condemned by the Sanhedrim could not be released by the King himself And therefore Hircanus Jos Ant. l. 14. c. 17. In Criminal Cases the King of Macedon's power availed nothing Curt. lib. 4. Curtius lib. 6. when he saw he could not hinder the Sanhedrim from passing Sentence against Herod advised him by Flight to secure himself In Macedonia they that derâ—ved their Pedegree from Caranus as Calisthenes in Arianus reports obtained the Government not by Force but by Law Now the Macedonians though they were accustomed to Regal Government yet had a greater smack of liberty than other Nations For it was not in the power of the King himself to take away the life of any Citizen It was the Antient custome of the Macedonians in criminal
that make spoil of anothers Territories secretly and like Robbers and those that do it openly with a just Army Now the best way to judge what numbers make an Army is by the strength of him against whom it is sent out In Cicero's account Six Legions with Auxiliaries was an Army Polybius was of opinion that One hundred and sixty thousand Romans and Twenty thousand of their Associates made a compleat Army but a lesser nember may also sometimes do it Vlpian gives him the title of General that had the charge of a Roman Legion with some Auxiliaries Which as Vegetius expounds it consisted of Ten thousand Foot and Two thousand Horse Livy seems to contract an Army to Eight thousand The like may be said of a Fleet which a certain number of men of War make up sometimes more sometimes less A Fort is a place so fortified that it may hold out against an Army for a time Arx from arceo to repel or drive away because by forts the enemy is restrained and driven back IV. Interpretation by conjectures Conjectures are useful when words or sentences will admit of diverse fences which Rhetoricians term Amphibologies but Logicians do more subtilly distinguish for if one word will admit of diverse significations they call it an Homonymy if a sentence will admit of a double sence they term it an Amphiboly So likewise when in any Contrcts therer appears any seeming repugnancy Then must we fly to conjectures as also where its several parts seem to clash one against the other we must by guessing at the sence reconcile them if possibly we can but if not then shall that be admitted which pleased the Contracters last Because it is not possible that at one and the same time the will should imbrace two contraries and in things that depend upon the will the latter act derogates from the former whether it be the act of one Party only as in a Law or a Testament or of more as in Contracts or agreements in which cases the evident obscurity of the words and sentences do justifie our conjectures Sometimes again the conjectures themselves are so plain and evident that they carry us to a sence contrary to those of the words The common heads whence these conjectures arise are chiefly either from the matter or from the effect or from other things conjoyned V. From the matter First from the matter as the word Day if a truce be made for Thirty days ought to be understood of natural days but not of Civil being most agreeable to the subject matter So the word donare i. e. to give freely is taken to transact according to the quality of the affairs The word Arms sometimes signifying instruments of War and sometimes armed Souldiers is to be understood in such a sence as is most congruous to the matter whereunto it is conjoyned So when men are promised to be delivered it is to be understood of living men not of dead contrary to the Cavil of the Plataeans So where Souldiers are required to lay down their Iron or Steel it is enough if they lay down their weapons and not their Steel Buttons as Pericleâ— would have it And by a free departure out of a City is meant a safe conduct to the place agreed on contrary to that fact of Alexander And by leaving half a Fleet is meant the one half of the number of Ships whole not dissected contrary to what the Romans dealt with Antiochus The same judgement may pass upon the like cases VI. From the effect Then from the effect the chiefest whereof is this If the word taken in the most usual sence do infer an effect contrary to reason then may we fly to conjectures For where the word is ambiguous we must take it in such a sence as will admit of no incongruity It was therefore but a foolish Cavil of Brasidas who having promised to depart with his Army out of the fields of the Boeotians denyed afterwards that the place where his Camp was pitcht belonged to the Boeotians as if that promise had been made in reference to the possession which the present fortune of the War had given him and not to the ancient bounds of the Boeotians in which sense the agreement had been void VII Or from other things conjoyned arising from the same will Lastly from other things conjoyned and those either such as sprang from the same root i. e. from the same evil though haply in some other place or upon other occasion declared whereupon we ground our conjectures For it is to be presumed that in a case that is dubious the will doth constantly adhere to one sence As in Homer where it is said it was agreed between Menelaus and Paris that Helen should be his that should be the Victor it was afterwards judged who should be the Victor namely he that killed the other Symp. 9.13 For saith Plutarch Judges are guided by that which is plain and not by that which is obscure Ad Adimant It was an excellent observation of Augustine concerning some Hereticks That they cull'd out some sentences of Scripture whereby they deluded the simple by their not observing the Coherence of it to that which went before and that which followed after whereby the meaning of the Writer was to have been discovered VIII And in the same place Or from such things as are also conjoyned in the same place amongst which the most forceable is the reason of a Law which some confound with the mind of the Law whereas it is but one of those signs whereby we guess at the mind of the Law So Cicero in his Oration for Caecina Whether I am thrown out of my possession by your lawful Attorney in your absence or by your Tenant Farmer or Servant who forceth me out in your name and by your command it makes a difference for reason of the Law holds in any of these cases Now of all conjectures this is the strongest when it evidently appears That the Will was excited to such a thing by some one reason as its solitary cause for oft-times there may be many considerations moving us to do a thing And sometimes besides reason the Will to shew its freedom determines it self and this alone is sufficient to beget an Obligation Thus things given in reference to a Marriage alter not their property in case the Marriage succeed not IX By a strict or large signification of words Moreover many words will admit of divers significations as being taken sometime strictly sometimes largely which proceeds from many reasons either because the name of the Genus doth adhere to one of the species as in those words of Cognation and Adoption and in words of the Masculine gender which are taken for the Common where the Common is wanting or because words of Art are more extensive than those that are vulgar As Death in the Civil extends to banishment but in the vulgar acception implies only a separation of the soul from the
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
men of Hermunduli which is all one as what in another place he expresseth in these words Hostis sit ille quique intra praesidia ejus sunt Let him be declared an enemy and whosoever betakes himself to his protection But this custom is in force even where there is no perfect war absolutely denounced but where notwithstanding a certain violent prosecution of our right is necessary which is as it were an inchoate and imperfect War It is worth our observation what Agesilaus answered to Pharnabazus being a Subject to the Persian King O Pharnabazus Plut. Ages Xenoph. Hist Graec. 4. when heretofore we were friends to the King of Persia we dealt friendly with all that appertained unto him so now being his enemies we use all his as enemies and therefore since thou art willing to depend upon his protection we may lawfully weaken him by thee The learned Damascene doth prudently distinguish between the taking of Prizes or Reprizals for the recovery of debts or reparation of damages and the making of War which he illustrates by the example of King Herod For whom Jos Antiq. 6. though it were not lawful to make war upon the Arabians yet was it lawful for him 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to take prizes throughout all Arabia for the five hundred Talents due unto him if not paid by a certain day appointed for so it was expresly covenanted between them and therefore Herod did rightly deny that to be the making of War which was but a just and lawful way to recover his own right III. An example in taking of men Prisoners A branch of the execution of this right was that which the Athenians called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the making men Prisoners concerning which the Attick Law was this If any man had been by forcible assault killed by a Stranger the next of kin had a right to take any three men Prisoners but no more and to detain them until the Murderer were either punished or delivered up to be punished Hence we may perceive That there is a kind of incorporeal right of Subjects that is a liberty to live where and to do what they please engaged for the debts of every Society which ought to punish such of their own Society as shall dare to injure those of another Society so that any of the Members of that Society that shall negglect or refuse to do it if taken may be held in bondage until that Society do what they ought that is until they either punish or deliver up the Offender For although the Egyptians as Diodorus testifies did maintain That it was not just to imprison a man for debt yet is there nothing in it repugnant to nature And the general practice not only of the Grecians but of most other Nations is sufficient to warrant the contrary Aristocrates who was Contemporary with Demosthenes demanded That a Decree might pass That whosoever should kill Charidemus should be taken away from what place soever and that whosoever should make resistance should be held as an enemy In which Decree Demosthenes observes these errours First that Aristocrates did not distinguish between the putting to death of Charidemus justly or unjustly seeing that possible it was that he might deserve death next that he did not require that judgment should first be demanded against him And thirdly that not they amongst whom he should be killed but they that should receive the murtherer being escaped into protection should be prosecuted as enemies Demosthenes his words are to this purpose If a murther be committed amongst any people and they refuse either to punish or to deliver up the murtherer the Law allows the apprehension of three men but Aristocrates leaves these men untoucht and not so much as mentions them but would have those persecuted as enemies who have according to the Common Right of Nations concerning suppliants received him that hath escaped by flight for so I put the case into protection unless they deliver him The fourth thing that he reproves is that Aristocrates would instantly bring it to an absolute War whereas the Law requires only the detention of three men Of these four exceptions that Demosthenes takes against Aristocrates his Decree the first the second and the fourth are not altogether without reason but for the third unless restrained to the sole event of the murther done either accidentally or in the defence of himself I cannot perceive why it should be mentioned unless it were like an Orator for arguments sake rather than truly or justly for as we said before Vid. lib. 2. cap. 21. Sect. 7. That Right which all men challenge of receiving and defending Suppliants doth concern those only whom Fortune and not their own crimes have made miserable for otherwise there is the same Law for those amongst whom the crime is committed as for those who resuse either to punish or deliver the guilty And surely either the Law it self cited by Demosthenes hath through custom been thus interpreted or against such cavils was afterwards more liquidly exprest the truth of one of these none will deny that reads that of Julius Pollux Lib. 8. c. 6. whose words are these The taking of men prisoners is then lawfull when a man having demanded Homicides who have fled for safety to others cannot receive them For the right of apprehending three men lies against those who having received malefactors into protection refuse either to deliver them or to punish them according to Law The like we find in Harpocration The Right of taking prisoners is a Right to snatch away some men from some other City For it was an ancient custom against such Cities as received Malefactors and refused either to punish them or to deliver them to be punished to make use of this Right of Pignoration The like may be done by any City whose Citizen hath been manifestly and injuriously taken away and detained from them Thus we read that at Carthage there were some that opposed the taking of Ariston the Tyrian prisoner upon this ground Liv. l. 34. That the like would be done against the Carthaginians both at Tyre and at other Mart Towns where the Carthaginians used to traffick IV. Reprizals lawful Another kind of forcible execution of this Right is the taking of Goods between the People of divers Nations which our Modern Lawyers call Reprizals or a violent seizing and detention of each others Goods which the English and the Saxons call Withernam and the French even where it is wont to be obtained from the King Letters of Marque which also are frequently granted and are of force as Lawyers say where Right is denied V. Our right being first denyed and when that is And this may be presumed not only when they cannot in any reasonable time obtain judgment against a delinquent or a debtor But when in a Case that will hardly admit of any doubt sentence shall pass plainly against Right for Cases that are ambiguous the definitive
which advanceth Religion There is an excellent saying in Euripides which makes as well for Religious things as for things Sacred Homo quisquis urbes vastat dis Manibus Sedes sacratas templaque haud recte sapit Nam similis ipsum pestis excidii manet Who conquered Cities rashly do erace And Temples with their Monuments deface Do not foresee the like may be their case Apollonius Tyanaeus doth thus interpret that Fable of the Giants fighting against Heaven When audacious men presume to violate the Temples and Images of the Gods It is said of Scipio That having taken Carthage he inricht all his Souldiers with the spoil excepting only those who had before invaded the Temple of Apollo neither durst Caesar himself as Dio relates demolish the Trophies of Mithridates being consecrated to the Gods of War Cicero speaking of Marcus Marcellus In Ver. 4. thus testifies of him Quae victoria profana fecerat religione impeditus non attigit What the victory had made common and profane that his Conscience would not permit him to touch Adding withal That there were some Enemies who voluntarily observed the Rights of Religion and of Customs even in the midst of War And in another place he declaims against the War made by Brennus against the Temple of Apollo as wicked and impious So doth Livy against that act of Pyrrhus in Plundering the Treasury of Proserpine which he calles Foedum in deos superbum facinus An act of high insolency against the Gods The same Livy bitterly inveighs against the War which Philip made as being wicked and as if it had been made against all the Gods Vltra enim jus victoriae in Templa in Aras in Sepulchra saeviit For that he spared neither their Temples nor their Altars no nor the Sâ—pulchres of the dead Whereat Polybius also glancing adds his own judgment in these words Wilfully to destroy those things which can be of no use unto us in War nor doth much incommodate our Enemies especially Temples Images and such like ornaments who can deny to be an act of brainsick madness Neither doth he herein admit of that common excuse of retaliation VIII The advantages that accrue by this moderation Although to speak properly it was not our intention in this place to enquire what is now most in use but to reduce that loose and inordinate licence in making War to that which is most agreeable to natural equity or to that which among things lawful is best yet will vertue her self being but little valued in our age plead mine excuse If seeing her by her self so despised I endeavour to set a much greater price upon her by proposing what great profits and advantages may by her be reaped In the first place therefore this moderation which spares such things as do not protract the War doth so far weaken the Enemy as it disarms him of one of the most forceable engines he hath to destroy us which is desperation Zenoph Hist Graec. Archidamus in Thucydides would needs perswade his Souldiers That the Enemies Country whereof they were possest was no other than an hostage or pawn which the better it was stockt with Corn and Cattle was the richer and so the better great reason therefore we have to spare it ne desperatio hostes redderet invictiores Lest desperation should make them to redouble their valour The same Counsel did Agesilaus in Plutarch follow when contrary to the opinion of the Acarnanians he gave the Achaians a free liberty to sow their Corn saying That the more they sowed the sooner they would harken to Peace This is the meaning of the Satyrist when he tells us That spoliatis arma supersunt They are compelled to live by force and arms that have nothing else to live by This was the usual practice of the Gaules as Livy notes who when they had taken a City would not burn all their houses that so they might pacifie the minds of their Enemies by giving them some things when it was in their power to have destroyed all Whereunto we may add That our preserving the Enemies Country during the War begets in the Souldiers a great assurance of the victory For what a man intends and can make his own he will not be easily perswaded to destroy Again Clemency is in it self apt to soften the resolutions and animosities of Enemies and to draw them to a submission Hannibal spares all the fields and territories of the Tarentines but not saith Livy out out of modesty or conscience but rather that thereby he might the sooner gain them to a voluntary surrender For to a Conquerour vtilis est clementiae fama Nothing is more advantageous than the fame of being merciful especially if the Enemy be any ways diffident of his own strength Thus did Augustus Caesar abstain from all Plunder and Rapine in Pannonia Lib. 49. Because as Dio gives the reason he hoped to conquer them without the least effusion of bloud Lib. 3. The like doth Polybius testifie of Timotheus That by taking care to spare the Country wherein he marched He got much love and the good opinion of his Enemies Thus Plutarch commemorating the same care in Quintius Flaminius when he made war in Greece adds this as the effect of it Not long after saith he did Quintius reap the fruits of his moderation and clemency for as soon as he came out of Thessaly the Cities yielded unto him And the Grecians that dwelt in Thermopilae did earnestly long for his coming yea and the Achaians renouncing their Confederacy with King Philip entered into League with the Romans against him We read in Frontinus that a City of the Lingones Lib. 5. c. 3. having unexpectedly escaped a general devastation in a War made by Domitian the Emperour under the conduct of Cerealis against Civilis the Batavian because they had contrary to their fears lost nothing being reduced to obedience supplyed him voluntarily with an Army of seventy thousand Men well armed Whereunto also we may add That from the contrary Counsels have usually arose clean contrary effects An example whereof Livy gives in Hannibal who was as he describes him exceeding prone to covetousness and cruelty Lib. 26. insomuch that what Cities or Towns he could not keep he would totally spoil and burn which Livy there calls wicked counsel as well in respect of the cause as of the success of it For he did not only thereby alienate the hearts of those who were the immediate Sufferers but he deterred others and so enforced them the more to strengthen themselves against him because Ad plures exemplum quam calamitas pertinebat More were frighted by the example than felt the calamity it self And therefore what some Divines have observed and taught I must needs assent unto That it is the Duty of such Commanders as would be thought Christians as far as in them lies to intercede for and hinder the sacking and pillaging of Towns and Cities especially of