and all things are uncertain If there be no Community that can be conserved without Law which Aristotle proved by a memorable example of Thieves certainly that which binds Mankind and many Nations together hath need of Law as he perceiv'd who said Unhonest things are not to be done no not for ones Countrey Greatly doth Aristotle accuse them who when they would have no man govern among themselves but he that hath right have no regard of right or wrong toward Foreiners That same Pompey whom we named afore on the other part corrected this Speech of a Spartan King That Common-wealth is most happy whose bounds are terminated by the Spear and Sword saying That 's truly blessed which hath Justice for its bounds to which purpose he might have used the authority of another Spartan King who preferred Justice before Military Valour upon this ground because Valour must be govern'd by Justice but if all men were just there would be need of Valour Valour it self is defined by the Stoicks to be a virtue fighting for equity Themistius elegantly shews that Kings such as the rule of Wisdome requires have not a tender eye onely to one Nation committed to their trust but to all mankind being as he speaks not or Lovers of Romans but Lovers of Men Minos his name was hated among Posterity because he restrained equity to the bounds of his Empire But so far is it from Truth which some imagine that all Laws cease in War War ought neither to be undertaken but for the obtaining of right nor to be waged being undertaken but within the limits of Justice and Faith Well said Demosthenes War is against them who cannot be ruled by Judgements for Judgements prevail upon them who feel themselves weaker but against them who make or think themselves equal Arms are taken up which truly that they may be right are to be exercised with no less religion than Judgements are wont to be exercised Let the Laws then be silent among Arms that is those Civil Judiciary Laws which are proper to peace not those other Laws that are perpetual and accommodate to all times For it was excellently said by Dion Prusaeensis Written Laws indeed that is the Civil prevail not among Enemies but the not-written Laws prevail that is those that are dictated by Nature and established by the Consent of Nations This appears by that old Formula of the Romans I judge those things are to be requir'd by a pure and pious War The same antient Romans as Varro noted undertook Wars slowly not licentiously because they thought none but a pious War was to be waged Camillus said Wars are to be waged justly as well as valiantly Africanus That the People of Rome did both undertake Wars and finish them with Justice In another you may read There are Laws of War also as of Peace Another admires Fabricius a brave man and which is a rare thing innocent in War and one that believ'd an Enemy might be wrong'd What power the Conscience of Justice hath in Wars Historians frequently demonstrate often ascribing Victory to this cause especially Thence those common Sentences The Hearts of Souldiers rise or fall at consideration of the Cause He seldome returns in safety that fights unjustly Hope waits upon a good Cause and the like Nor ought any to be moved at the prosperous Successes of just Attempts For 't is sufficient that the Equity of the Cause hath a certain peculiar and that a great influence upon the Action though that influence as it happens in humane affairs is oft hindred in its efficacy by the intervention and opposition of other causes Also for the procuring of Friends which as particular persons so States have need of to many purposes much avails an Opinion and Fame of War not unwisely nor unjustly undertaken and piously managed For no man is desirous to joyn himself to such whom he supposeth to hold justice piety and faith in vile esteem When upon the grounds and reasons aforesaid I saw most clearly that there is among Nations a Common Law which availeth both to Wars and in Wars I had many and weighty causes to write thereof I saw through the Christian world such licence of going to War as even barbarous Nations may be ashamed of that men take Arms greedily for light causes or none at all which being once put on all reverence of divine and humane Right is put off even as if the Furies had commission given them to work all kind of mischief In contemplation of which immanity many good Men have gone so far as to deny all Arms to a Christian whose Religion consisteth chiefly in Charity toward all the world in which opinion seems to be sometimes both Johannes Ferus and my Country-man Erasmus great Lovers of Peace both Ecclesiastical and Civil but with that intent as I suppose wherewith we are wont to bend what is crooked to the other side that it may return into straitness Yet indeed this endeavour of too much contradiction is often times so far from being profitable that it hurts because it is easily found that excess in some sayings takes away authority for other even when they stand within the limits of truth Wherefore both Parties had need of a Moderator that it might appear Neither nothing nor every thing is lawfull And withall my Design was by my private study and diligence to advance the profession of the Laws which heretofore in publick Offices I had exercised with as much integrity as I could This comfort of my studies was left me after I was unworthily cast out of myown Countrey honour'd by so many Labours of mine Many before me have purposed to bring this into a form of Art but no man hath done it perfectly Nor is it possible unless which hitherto hath not been done with care enough the things which are by Constitution be rightly separated from Natural For Naturals because they are alwaies the same may easily be collected into Art but the things that come from Constitution because they are often changed and are divers in divers places are put without Art as other precepts of singular things Nevertheless if the Priests of true Justice would undertake to handle the parts of natural and perpetual Jurisprudence laying aside what hath its original from free will One of Laws another of Tributes another of the Judges Office another of the conjecture of Wills another of proving Facts thereupon might be composed a Body of all parts collected What course we thought fit to take we have shewed in deed rather than words this work containing that part of Juris-prudence which is by far most noble For in the first Book having first spoken of the Original of Right and Law we have examined that question Whether any War be just and lawfull After to know the difference 'twixt publick and private War we had to explain the nature of the Supreme Power what
precept or carnal commandâ—…nt it pertaineth to the motions of the minde that are discovered by some fact which plainly appears by S. Mark the Evangelist who hath expressed that command thus Defraud not when he had set down a little before Do not steal And in that sense the Hebrew word and the Greek answering it are found Mich. 2. 2. and elsewhere Wherefore offences inchoate are not to be avenged with arms unless both the matter be of great concernment and it be gone so far that either some certain mischief though not yet that which was intended hath already followed from such an act or at least some great danger so that the revenge either may be joined with caution of future harm of which above when we spake of defense or maintain injur'd honour or withstand a pernicious example XCVI War for violation of Natures Law MOreover we must know that Kings and such as have equal power with Kings have a right to require punishment not only for injuries committed against themselves or their subjects but for them also that do not peculiarly touch themselves whatsoever the persons are that do immanely violate the Law of Nature or Nations For the liberty by punishments to provide for human society which at first as we have said was in the hand of every man after Common-wealths and Courts of justice were ordained resided in the hand of the highest Powers not properly as they are over others but as they are under none For subjection to others hath taken away that right Yea so much more honest is it to vindicate other mens injuries than ones own by how much more it is to be feared that a man in his own by too deep a resentment may either exceed a measure or atleast infect his mind And upon this score Hercules was praised by the antients for setting Countryes at liberty from Antaeus Busyris Diomedes and the like tyrants travelling o'r the world as Seneca speaks of him not to please his humor but execute justice being the Author of very much good to mankind as Lysias declares by punishing the unjust Theseus is likewise praised for cutting off those Robbers Sciron Sinis and Procrustes whom Euripides in his Supplices brings in speaking thus of himself My Deeds have stil'd me through all Greece The Punisher of wickedness So we doubt not but wars are just upon them that are impious toward their parents as the Sogdians were before Alexander beat them out of this barbarity upon them that eat mans flesh from which custom Hercules compelld the old Galls to desist as Diodorus relates upon them that exercise piracy For of such barbarians and wild beasts rather than men it may be rightly spoken which Aristides said perversly of the Persians who were nothing worse than the Grecians War upon them is natural and which Isocrates in his Panathenaick said The most just war is against the wild beasts the next against men like unto those beasts And so far we follow the opinion of Innocentius and others who hold that war may be made against them that offend against nature contrary to the opinion of Victoria Vasquius and others who seem to require to the justice of war that the undertaker be harmed in himself or his republick or els that he have jurisdiction over the other party that is assailed For their position is that the power of punishing is a proper effect of Civil Jurisdiction when we judge it may proceed even from natural right And truly if their opinion from whom we dissent be admitted no enemy now shall have the power of punishment against another enemy no not after war undertaken from a cause not punitive which right nevertheless very many grant and the use of all Nations confirmeth not only after the war is done but even while it endures not out of any Civil Jurisdiction but out of that natural right which was before the institution of Common-wealths and now also prevaileth where men live distributed into families and not into Cities XCVII Three cautions to be observed BUt here are to be used some Cautions First that civil customs though received among many people not without reason be not taken for the Law of Nature such as those were whereby the Graecians were distinguisht from the Persians whereunto you may rightly refer that of Plutarch To reduce the barbarous nations to more civility of manners is a pretence to colour an unlawful desire of that which is anothers Second that we do not rashly account among things forbidden by nature those things which are not manifestly so and which are forbidden rather by Divine Law in which rank haply you may put copulations without marriage and some reputed incests and usury Third that we diligently distinguish between general principles viz. We must live honestly i. e. according to reason and some next to these but so manifest that they admit no doubt viz. We must not take from another that which is his and between illations whereof some are easily known as Matrimony being supposed we must not commit Adultery others more hardly as that revenge which delighteth in the pain of another is vitious It is here almost as in the Mathematicks where some are first notions or next unto the first some demonstrations which are presently both understood and assented to some true indeed but not manifest to all Wherefore as about Civil Laws we excuse them that have not had notice or understanding of the Laws so about the Laws of nature also it is fit they should be excused whom either the imbecillity of their reason or evil education keeps in ignorance For ignorance of the Law as when it is inevitable it takes away the sin so even when it is joynd with some negligence doth lessen the offense And therefore Aristotle compares barbarians that are ill bred and offend in such matters to them who have their palats corrupted by some disease Plutarch saith There are diseases of the mind which cast men down from their natural state Lastly that is to be added which I set down once for all Wars undertaken for the exacting of punishment are suspected of injustice unless the acts be most heinous and most manifest or else some other cause withall concur That saying of Mithridates concerning the Romans was not perhaps beside the truth They do not punish the offenses of Kings but seek to abate their power and majesty XCVIII Whether war may be undertaken for offenses against God NExt we come to those offenses which are committed against God for it is enquired whether for the vindicating of them war may be undertaken which is largely handled by Covarruvias But he following others thinks there is no punitive power without jurisdiction properly so called which opinion we have before rejected Whence it follows as in Church-affairs Bishops are said in some sort to have received the charge of the universal Church
Amymones among the Cnidians and of the Dictators among the Romans in the first times when there was no appeal 〈◊〉 the people whence the Dictators Edict as Livy saith was observed as 〈◊〉 Oracle and there was no help but 〈◊〉 their care of obeying it and the force of the regal power was besieged with the Dictatorship as Cicero speaketh XLIV Arguments to the contrary answered THe Arguments brought on the contrary part are not hard to be solved For first that they affirm the Constituent to be superiour to the Constitutel is true only in that constitution whose effect perpetually depends on the will of the Constituent and not in that which at first proceeds from the will but afterward hath the effect of necessity even as a woman makes to her self a husband by consent whom she must of necessity obey for ever Valentinian the Emperour to the Souldiers who had made him so when they asked somewhat of him which he thought unreasonable gave this answer To elect me to rule over you was in your power O my Souldiers but since you have elected me the thing you ask is at my pleasure not yours You as subjects ought to obey I must consider what is fit to be done Besides the Assumption is not true that all Kings are constituted by the people which may be sufficiently understood by the examples of a Father of a family admitting Tenants on condition of obedience and of Nations overcome in War which above are mentioned Another Argument they draw out of that sentence of Philosophers All Government is for the benefit of them that are govern'd not of them that do govern Whence they think it follows from the Nobilitie of the end that the Governed are superiour to the Governour But neither is that universally true The good of the governed is the end of all Government for some Governments are by themselves for the Rulers sake as that of a Master for the servants profit is there extrinsecal and adventitious even as the Physicians Fâ—…e pertains nothing to the Medicine it self Other Governments there are for mutual benefit as the Husband 's So certain Empires may have for their end the utility of the Kings namely such as are gotten by conquest and are not therefore to be called Tyrannical seeing Tyranny as the word is now taken includes injustice Some also may respect as well his utility that rules as his that is ruled i. e. when an impotent people set over themselves a potent King 〈◊〉 their defense Yet do I not deny that in many Empires is properly respected the profit of the subjects nad true it is which Cicero after Herodotus Herodotus after Hesiod hath deliver'd That Kings were constituted to the end justice may be had And yet it doth not follow thence what they infer that the people are superiour to the King for tutelage also was found out for the Pupils good yet is tuition a right and power over the Pupil Nor is the objection of any moment if 〈◊〉 say the Tutor may be put out of his charge upon mal-administration of the Pupils estate and therefore the same must take place upon the King for this holds in the Tutor who hath a Superior but in Empires because a progress in infinitum is not granted we must by all means make a stop in some person or persons whose faults because they have no Superior Judge God himself testifies that he takes into his peculiar cognizance And he either doth justice upon them if he judgeth it to be needfull or else forbeareth them for a punishment or tryal of the people Excellently saith Tacitus As drougth or excessive rain and other evils of naeture so bear ye patiently the luxury or avarice of Rulers Vices will continue as long as there are men but neither are they continual and they are recompensed by the intermixture of better things And it was a good saying of M. Aurelius Magistrates judge of private persons Princes of Magistrates God of Princes Notable is the place in Gregorius Turonensis where that Bishop thus addresses himself to the King of France O King if any one of us go beyond the bounds of justice he may be corrected by you but if you exceed Who shall chastise you For we speak unto you and you hear us if you will but if you will not who shall condemn you but He who hath pronounced Himself to be JUSTICE Among the doctrines of the Essens Porphyry remembers this That Empire falleth not to any man without Gods especial care Irenaeus very well By whose appointment men are born by his appointment also Kings are constituted fit for the people who in those times are gogovern'd by them There is the same sense in the Constitutions which are call'd Clement's Thou shalt fear the King knowing that he is chosen by the Lord. Nor doth it overthrow these things which we have said that we read the people punished sometimes for the sins of their Kings for this cane not so to pass because the people dd not punish nor restrain the King but because they did at least tacitely consent to his faults Nevertheless it is certain too without that God might use his supreme dominion which he hath over the life and death of every one for to punish the King whose punishment indeed it is to be deprived of his Subjects XLV Of mutual Subjection OThers there are who feign unâ—… themselves a certain mutual subjection so that the whole people ought to obey the King governing well and the King governing ill ought to be subject to the people These men if they did say Things manifestly unjust are not to be done at the Kings command would speak a truth which is acknowledged among all honest men but this includes no coaction or right to command the King And had it been the purpose of any people to divide the power with the King of which we shall say somewhat hereafter such bounds surely ought to have been assigned to either power which might easily be distinguisht by the difference of places persons or affairs But the goodness or illness of act especially in civil matters which oft have an obscure disceptation are not fit to distinguish parts Whence very great confusion cannot but follow whilst under pretence of a good or evill act on the one side the King on the other side the people draw unto themselves according to their right of power the cognizance of the same matter Such a perturbation of things so far as I can remember never any people was so phantastick as to introduce XLVI Cautions for the understanding of the true Opinion The first FAlse opinions being removed it remains that we set down some cautions that may open a way to make a right judgement to whom the right of supreme power in every Nation belongs Our first caution is that we be not deceived with the ambiguous sound of a name or the shew of external things For example
of a Family who 〈◊〉 he hath promised his Family to do somewhat which belongs unto their Government shall not thereby cease to have so far as may be in a Family supreme right therein Nor is the Husband deprived of marital power because of some promise to the Wise. I confess by this means the Empire is in some sort streightned whether the obligation ly upon the exercise of the act only or also directly upon the faculty it self In the first way the act done against promise will be unjust because as we shew elsewhere a true promise gives hima right to whom 't is made and in the other way it will be null by want of faculty Nor yet doth it thence follow that he that makes the promise hath any superiour for in this case the act is rendred null not by superiour force but in Law Amongst the Persians the King was Supreme and absolute adored as the Image of God and as Justin saith he was not changed but by death A King was he that to the Peers of Persia spake thus I have called you together that I might not seem to use only my own Counsel but remember it is your duty rather to obey than perswade Yet he took an oath at his entrance as Xenophon and Diodorus Siculus have noted and it was not lawful for him to change certain Laws made after a particular form The same is related of the Ethiopian Kings by Diodorus Siculus And by his relation the Egyptian Kings who no doubt as well as other Kings of the East had Supreme power were bound to the observation of many things but if they had done the contrary could not be accused living dead their memory was accused and being condemned they wanted solemn burial as also the bodies of the Hebrew Kings who had reigned ill were not buried in the royal Sepulchers an excellent temperament whereby both the highest power was kept sacred and yet by fear of a future judgement Kings were kept from breaking their trust That the Kings also of Epirus were wont to swear they would reign according to the Laws we learn of Plutarch in the life of Pyrrhus But suppose it be added If the King breaks his trust he shall be depâ—…sed Yet will not the power hereby cease to be the highest but the mannâ—… of holding it weakned by this condition and the Empire will be as it were temporary It is said of the King of Sabaeans that he was absolute and of a most free power but that he might be stoned if he went out of his Palace In like manner an estate of Land that is held in trust is an estate as well as if it were possessed in full dominion but it is holden for a time or at the pleasure of another And such a Commissory Law or condition may be annexed not only in the bestowing of a Kingdom but in other contracts for some Leagues too with neighbours we see are entred with the like sanction LII The fourth Observation FOurthly it must be noted Although the highest power be one and undivided by it self consisting of the parts above set down supremacy being added Yet may it sometimes happen to be divided either by parts which they call potential or by parts subjective So when the Roman Empire was one it often came to pass that one Ruler had the East another the West or that three divided the world between them And so it may be that a people choosing a King may reserve some acts to themselves and may commit others to the King with full right Yet is not that done as we have shewed already whensoever the King is bound up with certain promises but then we must conceive it to be done if either a partition be made expresly of which we have spoken afore or if a people yet free lay upon their future Kings a charge by way of an abiding precept or if a clause be added to signifie that the King may be compeld or punisht For a precept is from a superiour superiour at least in that particular which is given in precept and to compell is not alwaies the property of a superiour for also naturally every one hath a right to compel his debtor but is repugnant to the nature of an inferiour Parity therefore at least follows from coaction and so a division of the supremacy Against such a State as being double headed many allege many incommodities but as we have also said above in civil affairs there is nothing wholy without incommodities and Right is to be measured not by that which seems best to you or me but by the will of him whence right ariseth An antient example is brought by Plaâ—… in his third de legibus For when the House of Hercules had built Argâ—… Messena and Lacedemon the King were bound to keep their Governmenâ—… within the bound of prescribed Laws anâ—… whilst they did so the people were obliged to leave the Kingdom to them and their posterity and suffer none to take it from them And to this not only King and their own people have mutually 〈◊〉 venanted but Kings with other Kings and one people with another people and Kings with neighbourig States and States with neighbouring Kings have entred into Covenant and promis'd aid to 〈◊〉 other respectively LIII A further explication of the last note about division of power and mixture YEt are they much deceived who think the power of Kings divided when they will have some of their acts not accounted firm unless they be approved by the Senate or some such Assembly For the acts voided for want of such approbation must be understood to be cancelled by the Kings own command who ordained this by way of caution lest any thing fallaciously gained from him should pass under the notion of his true and deliberate will King Antiochus the third sent such a â—…escript to the Magistrates that they â—…hould not obey him in case he should command any thing against Law and Constantin published the like that Orphans and Widows be not constreined to come to the Emperours Court for Justice no not if the Emperours rescript â—…e shewed Wherefore this case is like to that of testaments which have a clause that no later testament shall be of force for this clause also makes it be presumed that the later testament proceeds not from the true will of the maker Nevertheless as this clause so that other by the Kings express command and special signification of his later will may be annulled Again I do not here use the authority of Polybius neither who refers the Roman Common-wealth to a mixt kind of Government which at that time if we respect not the doings themselves but the right of doing was meerly popular For both the authority of the Senate which he refers to an Optimacy and of the Consuls whom he will have to be like Kings was
is not chosen as a thing primarily intended as in judiciall punishment but as the only thing remaining at that time when he that is assaulted even at that time ought to desire rather to do somewhat whereby the other may be terrified or weakened than destroyed Present danger is here requir'd and as it were in a point I confess if the assailant draw his sword and so that it appears he doth it with a mind to kill it is lawfull to prevent him For in morals as in naturals a point is not found without some latitude Nevertheless are they deceived and do deceive who admit of any fear whatsoever as a just occasion of such preventing For it is well observed by Cicero Very many injuries proceed from fear when he that thinks to hurt another feareth unless he do it himself shall receive hurt Clearchus in Xenophon Many have I known drawn either by calumny or supicion whilst they fear others and had rather prevent than suffer to have done much evill to those that attempted not nor so much as thovght any such thing against them Cato in his Oration for the Rhodians What saith he shall we first execute that which we say they designed Cicero again Who ever made this Statute or to whom may it be granted without extreme hazard of all that one might lawfully kill him first of whom he saith we was afraid left himself should afterward be killed Pertinent is that of Thucydides The future is yet uncertain nor ought any one therefore to make a quarrell present and certain The same Author where he declareth the hurt of Sedition among the Grecian Cities sets down this for one fault He was praised that first did what another was about to commit To such agrees that saying of Vibius Crispus cited by Quintilian Who permitted thee to be so fearfull And Livia in Dio saith They escape not infamy that by way of prevention do the evill which they fear Now if any one offer not present force but be found to have conspired or lyen in wait if to prepare poyson if to plot a false accusation to suborn witnesses to corrupt judgment such a one I say cannot be justly slain if either the danger may be otherwise avoided or it be not certain enough it cannot be otherwise avoided For for the most part the delay of time interposed affords many remedies and many accidents for our rescue according to the Proverb Between the cup and the lip Yet there are not wanting both Divines and Lawyers that extend their indulgence farther But the other also which is the better and safer way wanteth not the consent of Authors IV. Of the loss of a member and the defense of chastity WHat shall we say of the danger of mutilation and loss of some part of the body Certainly the loss of a member especially one very needfull being very grievous and as it were equiparable to life besides it being hard to know whether it draw not after it perill of death if there be no other way to come off I may suppose the author of such a perill forefeits his own life and may be justly slain by the defendant In defense of Chastity it can scarce be doubted but the same is lawfull when both common estimation and the divine law too equals chastity to life Therefore Paulus the Lawyer said such a defense is right We have an example in Cicero and Quintilian of a Tribune of Marius slaine by a Soldier Yea and women have often slain the in vaders of their modesty as histories relate Chariclea in Heliodorus calls such an act a just revenge on behalf of injur'd chastity V. Defense may lawfully be omitted WHat we have said afore although it be lawfull to kill him that attempts to kill yet he doth more commendably who had rather be killed than kill some do grant so that they except a person profitable to many But to me it seemeth unsafe to impose this Law contrary to Patience upon all in whose life others are concernd Wherefore I may conceive it is to be restrained to them whose office 't is to keep off force from others such as are the companions in a journey undertaken on those termes and publick Rulers to whom that of Lucan may be applyed T was cruelty to yeeld himself to death So many thousands living by his breath VI. Defense is unlawfull sometimes against a person very profitable to the Publick ON the contrary it may happen that because the Invader's life is profitable to many he cannot be slain without sin nor that onely by force of Divine Law whether old or new of which afore when we shewed the Kings person to be sacred but by the very Law of Nature For the Right of nature as it signifies a Law doth not onely respect those things which are dictated by that Justice that is calld Expletrix but conteineth in it self the acts of other vertues also as of Temperance Fortitude Prudence as being in certain circumstances not onely honest but due Now to that which we have spoken Charity obligeth us Nor doth Vasquez remove me from this opinion when he saith a Prince who assaulteth an innocent person ceaseth to be a Prince in that very act than which scarce any thing could be spoken either less truly or more dangerously For as dominions so also Empires are not lost by delinquency unless the Law ordain it But no where is found a Law ordaining this concerning Empires that they should be lost by an offence against a private man nor will ever such a Law be found as I believe for it would bring in very great confusion of things As to that foundation which Vasquez lays for this and many other Conclusions That al Empires regard the utility of those that obey not of those that governe grant it were universally true it would not serve the turne for the thing doth not presently fail whose utility in some part faileth And whereas he adds that the safety of the Commonwealth is desired by every one for his own sake and therefore every one ought to prefer his own safety even before the whole this doth not sufficiently cohere T is true indeed for our own sake we would have the Commonwealth be safe but not onely for our own sake others are also to be regarded For it is a false opinion and rejected by the sounder Philosophers to think that Friendship is born of indigence alone sith of our own accord and by nature we are carryed to it Now that I should prefer the good of a great many before my own proper good Charity adviseth often sometimes commandeth Here is pertinent that of Seneca Princes and Kings and whosoever by any other name are Tutors of the publick State no wonder They are beloved even above all private Relations For if to men of sound judgment publick things are dearer than private it followes that he
See you not Learning in his Lookes See it more Liuely in his Bookes Tho. Cross Sculpsit THE ILLUSTRIOUS HVGO GROTIUS OF THE LAW OF WARRE AND PEACE WITH ANNOTATIONS III. PARTS AND Memorials of the Author's Life and Death 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 M. Antonin Imp. l. 9. LONDON Printed by T. Warren for William Lee And are to be sold at his shop at the signe of the Turks-head in Fleet-street M. DC L V. TO THE ENGLISH GENTRY WITH ALL DUE HONOUR TO THEIR WISEDOM AND VALOUR THIS WORK IS HUMBLY DEDICATED BY THEIR SERVANT THE TRANSLATOR TO THE READER THat This Book may obtein General Acceptance I have somewhat to say to every sort of Readers The Divine shall here behold the Evangelical Law shining above all other in the perfect Glory of Charity and Meekness The Gentlemen of our Noble Innes of Court shal here read the most Common Law that of Nature and Nations The Civilian may here observe some footsteps of the Goodly Body of his Law To the Statesman and the Soldier 't will be enough to see the Title of War and Peace The Philosopher the Poet the Orator and Historian shall here meet with the choicest Flowers gathered out of their spatious Gardens by a most skilful hand the hand of Him that was excellent in all these kinds of good Learning the Incomparable HUGO GROTIUS This Great Name as well as the Usefulness of the Argument we hope will commend the Book to every Ingenuous Reader to whose candid Censure it is in all humility submitted by C. B. The Author's Dedication to the most Christian KING THis Book Most Eminent of Kings is bold to bear Your Royal Name in the Front in Considence not of It self not of the Author but of the Argument Because it is written for Justice Which Vertue is so properly Yours that by your own Merits and by the Suffrage of Mankind You have thence received a Title most worthy of so Great a King being known every where now no less by the Name of JUST than of LUDOVIC The Roman Commanders esteemed the Titles very specious which were deriv'd from Crete Numidia Afric Asia and other conquer'd Nations How much more Illustrious is Yours whereby you are declared both the Enemy every where and all ways the Conquerour of no people of no man but of that which is Unjust The Egyptian Kings thought it a great matter if One were called the Lover of his Father Another of his Mother a Third of his Brother How small parts are These of Your Name which comprehendeth not only those things but whatsoever can be imagined fair and honorable You are Just when by Imitation of Him you honour the Memory of your Father a King Great above all that can be said Just when you instruct your Brother every way but no way more than by your example Just when you grace your Sisters with Highest Matches Just when you revive the Laws almost buried and as much as you can oppose your self against the declining Age Just but withal Clement when you take away nothing from your subjects whom Ignorance of your goodness had transported beyond the limits of their Duty beside the licence to offend and offer no Violence to Souls of a different perswasion in matter of Religion Just and withall Merciful when by your Authority you relieve oppressed Nations afflicted Princes neither permit Fortune to be too insolent Which singular Beneficence of yours and as neer like to God as human Nature suffers compells me on my own behalf also to make this publick thankfull Acknowledgment For as the Heavenly Stars do not only communicate their Influence to the greater parts of the world but vouchsafe it to every living Creature So you being the most beneficent Star on earth not content to raise up Princes to ease people have been pleased to be a safeguard and a Comfort even to me ill used in my own Country Here is to be added to fill up the Orb of Justice after your publick Actions the Innocency and Purity of Your private life worthy to be admir'd not by Men alone but by the Angels too For how Few of the Inferiour sort yea of those that have secluded themselves from the Fellowship of the world keep themselves so untoucht by all faults as You being placed in such a Fortune which is surrounded with innumerable allurements to sin And how Admirable a Thing is This among Business in the Throng in the Court among so many Examples of Those that sin so many ways to attain unto that which solitude scarce yea often not at all affordeth others This is indeed to merit even in this life not only the name of JUST but of SAINT which was given by the consent of pious men to Charles the Great Ludovic your Ancestors after their Death that is to be not by a Gentilitious but by your own proper right Most Christian. Now as every part of Justice is Yours so is that which concerns the Matter of this Book about the Counsells of War and Peace yours peculiarly as you are a King and King of France This your Kingdom is great which stretcheth it self to both Seas through so many spaces of so happy Lands but it is a greater Kingdom than This that You do not covet other Kingdoms This is worthy of Your Piety worthy of that eminency not to Invade the Right of any Other by your Arms not to remove antient Bounds but to do the Business of Peace in the time of War neither to begin War but with this Desire to bring it to a speedy end And How Brave How Glorious is This How Joyful to Your conscience that when God shal call you up to His Kingdom which alone is better than yours you may confidently say This sword have I receiv'd from Thee for the safeguard of Justice This I render to Thee pure and unstained with the blood of any man rashly shed Thus it shall come to pass that the rules we now look for in books hereafter may be taken from Your actions as from a most perfect Exemplar It is a very great matter This Yet doth the world of Christians dare to exact something more at Your Hands Namely that the Flames of War being every where extinguished not only Empires but Churches may see their Peace returning to them by Your procurement and that Our Age may learn to submit to the Judgment of That Age which All Christians profess to have been truly sincerely Christian The minds of Good men weary of Discords are raised to this Hope by the Friendship newly made 'twixt you the King of Great Britain a most wise Prince exceedingly studious of that Holy Peace and confirmed by the most Auspicious Marriage of your Sister Difficult is the Business by reason of Partial Affections inflamed and exasperated more and more but Nothing is worthy of so excellent Kings but That which is Difficult but That which is Despaird of by all others The God of Peace the God
Goodness and Power So that he is able to give unto those that obey him greatest Rewards and eternal being himself eternal and may be believed willing and much the more if he hath expresly promis'd it Which we Christians convinced by undoubted testimonies do believe This is now another fountain of Law beside that natural coming from the free will of God to which that we ought to be subject our own understanding doth irrefragably dictate to us Moreover that natural Law of which we have spoken whether it be the Social or that which is more largely so called though it proceedeth from principles internal to man yet it may deservedly be asscrib'd to God because it was his will that such principles should be in us in which sense Chrysippus and the Stoicks said The Original of Law came from no other Head but Jupiter Adde that God by Laws given hath made the said principles more conspicuous even to men of Weaker minds and those impetus and passions regarding our selves and others and drawing us several ways He hath forbid to wander regulating their vehemency and keeping them in compass And the sacred Historie besides that which consists in precepts doth not a little excite that social affection by shewing that all men are descended from the same first Parents so that in this sense may be rightly said what Florentinus said in another Nature hath made us all Kinsmen Whence it follows that 't is impiety for one man to be treacherous to another Among men Parents are as it were Gods to whom therefore not an infinite but a peculiar observance is due And further being it is a point of the Law of Nature to stand to Covenants for some way of binding themselves was necessary among men nor can any other natural way be imagined from this very fountain Civil Laws have flowed For they that had joyned themselves to any Assembly or subjected themselves to Man or Men had either expresly promis'd or by the nature of the business ought to be understood to have promis'd tacitly That they would follow what either the major part of the Assembly or Those to whom power was given had constituted Wherefore what Carneades and others say That Utility is even the Mother of Justice and Equity if we speak accurately is not true For the mother of Natural Law is humane nature it self which would carry us to a desire of mutual society though we wanted nothing but the mother of Civil Law is the very obligation by consent which having its vertue from the Natural Law Nature may be call'd the Grandmother of this Law also But to Natural Law Utility is added for the Author of Nature was pleased we should be weak singly and stand in need of many things usefull to our life that we might the more vigorously embrace Society To the Civil Law Utility gave occasion for that consociation or subjection aforesaid began to be ordained for some Utilities sake And they that prescribe Laws to others are wont or ought to respect some Utility therein But as the Laws of every Common wealth respect the interest and profit of the same so between Common-wealths either all or most some Laws may have arisen from Consent and it appears they have arisen which might respect the Interest not of several Societies but of the Whole And this is that which is call'd the Law of Nations as oft as that name is distinguisht from Natural Law Which kind of Law Carneades omitted distributing all Law into Natural Law and the Civil Law of single Nations when yet being to treat of that Law which is common to Nations one with another for he added a discourse of War and things got by War he ought by all means to have mentioned the same And it is another errour of Carneades to traduce Justice by the name of Folly For as by his own confession the Citizen is not a fool who follows the Civil Law in the Common-wealth though for his reverence unto it he must omit some things profitable to himself So neither is that people foolish that value not so much their own Interest as to neglect therefore the Common Law of Nations The reason is the same in both For as a Citizen who breaks the Civil Law for his present Commodity breaks that wherein his own and his posterities perpetual benefit is contain'd Even so a people violating the Laws of Nature and Nations destroy the muniments of their own Tranquillity for the future Again though no profit were expected out of the observation of Law yet were it a point of Wisdome not of Folly to be carried unto that to which we feel our selves directed and enclined by our nature Wherefore neither is that which one hath in Plato Laws were found out through fear of receiving injury and Men are forcibly drawn to advance justice universally true For that pertains onely to those Institutes and Laws which are invented for the more facile execution of Law as Many weak of themselves that they might not be opprest of the stronger conspir'd to institute and by united force to maintain Courts of Justice that all together might prevail against those they could not match single And in this sense may that Saying be well taken Law is that which pleaseth the Stronger conceiving Law to want its external end unless it have Force to back it as Solon did very great matters joyning Might and Right together as he said himself Yet doth not Law though destitute of Force want Effect altogether for Justice brings security to the Conscience Injustice torments and tearings such as Plato describes in the breasts of Tyrants Besides the consent of honest man approves of Justice condemns Injustice And which is the greatest of all this hath God for an Enemy that for a Friend who doth so reserve his judgements after this life that he often too represents the power of them even in this life as Histories do shew by many examples Now whereas Many require not that justice in a State or Governour which they exact of private Men the Cause of that errour is first in that they consider nothing in the Law but the Profit arising thence Which is evident in single Citizens unable to defend themselves but great Cities and States seeming to contain all things in themselves which are needfull for the well supporting of life seem not to have need of that virtue that looks abroad and is called Justice But not to repeat what was said that Law was not onely provided for profits sake there is no Common-wealth so strong that may not sometime stand in need of help from without either for commerce or also for repelling the Forces of many forein Nations united together against it Whence we see the most potent States and Kings have desired Leagues all virtue whereof is taken away by those that confine Law within the bounds of a City It is most true Take away Law
old servants at Rome now in most places Clerks which Law yet as all of that kind is to be understood with exception of extreme necessity And so much be spoken generally concerning Adjutors and subjects the specials shall be considered in their proper places The end of the first Part. HVGO GROTIVS OF WARRE AND PEACE II. PART I. What are call'd justifick causes of War LEt us come to the Causes of Wars I mean justifick for there are also other which move under the notion of profitable distinct sometimes from those that move under the notion of just which Polybius accuratly distinguisheth one from the other and both from the Beginnings of war such as the Stagg in the war of Turnus and Aeneas But although the difference 'twixt these is manifest yet the words are wont to be confounded For the causes which we call justifick Liâ—… in the Rhodians speech hath also called Beginnings Certainly ye are the Romans who pretend that your wars are therefore prosperous because they are just nor do ye so much glory in the event of them that you overcome as in the beginnings that you undertake them mâ—… without cause Those justifick causes properly belong to our argument whereto is pertinent that of Coriolanus in Halicarnassâ—…nsis I suppose it ought to be your first care that you take a pious and just cause of war And this of Demosthenes As in houses ships and other buildings the lowest parts ought to be most firm so in actions the causes and foundations must be true and â—…ust To the same purpose is that of Dio Cassius We ought to have greatest regard of justice if this be preseut the war is hopefull if not there is nothing certain to any one though he have successe at first according to his minde And that of Cicero Those wars are unjust which are undertaken without cause who elsewhere reprehends Crassus for passing o'r Euphrates when there was no cause of war Which is no less true of publique than of private wars Hence is that complaint of * Seneca Do we restrain homicides and single slaughters Why doe we not restrain wars and that glorious wickedness of slaughtering Nations Avarice and cruelty know no bounds By the Decrees of Senate and people outrages are done and things piivately forbidden are publiquely commanded Wars I grant undertaken by publick authority have some effects of Law as also Sentences of which here after but they are not therefore the less blamable if there be no cause So that Alexander if without cause he warred upon the Persians and other nations is by the Scythians in Curtius and by Seneca too deservedly call'd a Robber by Lucan a Spoyler and by the Indian wisemen unjust and by a certain pirate was drawn into the society of his crime And likewise Justin relates that two Kings of Thrace were spoyled of their Kingdom by his Father Philip by the fraud and wickedness of a Robber That of Augustin is to the same purpose Take away Justice and what are Kingdomes but great Robberies To such agrees that of Lanctantius Deceived vith the shew of vain glory they colour their wickedness with the name of virtue Just cause of taking Arms can be no other than injury The iniquity of the adverse party brings in just wars saith the same Augustin where by iniquity he means injury So in the form of words used by the Roman Herald I call you to witness that people is unjust and doth not performe what is right II. Three just causes of Wars THere are according to most Authors these three just causes of wars Defense Recovery Revenge In which enumeration unless the word Recovery be taken more largely is omitted the prosecution of that which is due to us which Plato omitted not when he said Wars are waged not onely if one be opprest by force or robbed but also if one by deceived With whom agrees that of Seneca It is a most equal word and conformable to the Law of Nations Render what thou owest And in the Herald's formula it was They have not given nor paid nor done the things they should And in Salust By the law of Nations I demand those things Augustin when he said Just wars are those that revenge insuries tooke the word revenge more generally for to take away as the following words do shew wherein is not an enumeration of parts but an addition of examples So is a nation or common-wealth to be opposed which hath either neglected to avenge what was done wickedly by their men or to render what was injuriously taken Upon this naturall knowledge the Indian King as Diodorus relates accus'd Semiramis that she began a war having received no injury And so do the Romans require of the Senones not to fight against them that had done them no wrong Aristotle saith Men war upon such as have provoked them by injury and Curtius of certain Scythians They were manifestly the most just of all the Barbarians they took not armes unless they were provoked III. War is lawfull in defense of life onely against an assailâ—…nt and in present certain danger THe first cause of just war is Injury not yet done but offer'd either against Body or Goods If the Body be assaulted by present force with perill of life not otherwise avoidable in this case war is lawfull even with the slaying of him that brings the danger as we have said afore when by this instance as moâ—… approved we shewed that some private war may be just T is to be noted this right of defense by it self and primarily springs from hence that nature commends every one unto himself not from the injustice or sin of the other from whom the danger is Wherefore although he be without fault as one that warreth faithfully or thinketh me other than I am or is beside himself or affrighted as to some hath happened hereby is not taken away the right of self-defense it sufficeth that I am not bound to suffer what he offereth no more than if another mans beast did threaten me with the danger Whether also innocent persons who being interposed hinder my defense or flight without which death cannot be escaped may be slain is question'd Some even Divines there are that think it lawfull And surely if we respect nature alone with her the respect of society is much less than the care of proper safety But the law of Charity especially the Evangelicall which equals another to our selves plainly permits it not That saying of Thomas if it be rightly taken is true In a true defense a man is not slain on purpose not that it is not lawfull sometimes if there be no other meanes of safety to do that on purpose whence the death of the assailant wil follow but that in this case that death
so also Kings beside the peculiar care of their own states have lying upon them the care of human society The chief reason for the negative opinion that such wars are not just is this Because God is sufficient to revenge offenses done against himself whence it is said The Gods take care of their own injuries and T is enough that perjun hath God for an Avenger But we must know that the same may be said of other offenses too For God no doubt is sufficient for the punishing of them also and yet are they rightly punished by men no man contradicting Some will reply and say other offenses are punished by men as other men are thereby harmed or endangered But on the other side we must note not only those offenses are punished by men which directly hurt other men but those also that do so by consequence as killing one self bestiality and some others Now though Religion by it self prevailes singularly to procure God's favour yet hath it also in human society very great effects And it is not without good reason that Plato calls religion the fortress of power and the bond of Laws and vertuous disciplin Irreligion on the contrary is the cause of all iniquity Jamblichus hath a saying of Pythagoras To know God is vertue and wisedom and perfect happiness Hence Chrysippus said The Law is the Queen of Divine and human things and Aristotle accounts among publick cares that about things divine to be the chiefest and the Romans defined skil in Law to be the knowledge of things divine and human And Philo describes the art of government the ordering of things private publick and sacred All which things are not to be considerd only in some one State as when Cyrus in Xenophon saith his subjects would be so much more obedient to him by how much more they feared God but also in the common society of mankind Take away Piety saith Cicero and you take away faith also and fellowship of mankind and that most excellent of all vertues Justice And hereof we have an evident argument in Epicurus who when he had taken away Divine providence left nothing of justice neither but an empty name saying It had its birth from agreement alone and endured no longer than common utility lasted and that we must abstein from things hurtfull to another only for fear of punishment His own words to this purpose very notable are extant in Diogenes Laertius Aristotle also saw this connexion who speaks thus of a King The people will the less fear any unjust usage from their Prince whom they believe to be religious And Galen where he had said many questions are made about the wor'd and the Divine Nature without any benefit to mens manners acknowledgeth the question concerning Providence to be of very great use both for private and publick vertues Homer also saw this who opposeth to men fierce and unjust those that are of a religious mind So Justin out of Trogus praiseth the antient Jews for their Justice mixt with Religion and Strabo commendeth them for being really just and pious Furthermore Religion hath greater use in that greater society than in the Civil because in the Civil State part of it is supplyed by Laws and an easy execution of the Laws when on the contrary in that great Community the execution of Law is most difficult not to be done without arms and the Laws are very few and these too have their sanctimony chiefly from the fear of a divine power whence offenders against the Law of Nations are usually said to violate the Divine Rightly therefore have the Emperors said that the pollution of Religion perteined to all mens injury as that wherein all mankind is concerned XCIX Four most common principles of Religion THat we may take a more perfect view of the whole matter we must note True Religion which is common to all Ages depends especially upon four principles 1. There is a God and He is One. 2. God is not any of the things visible but of a nature more sublime 3. All human affairs are under Gods providence and governed by his most righteous Judgment 4. The same God is Maker of all things without Himself These four are expressed in so many Precepts of the Decalogue For in the first is plainly deliverd the Unity of God in the second His invisible Nature therefore to make an Image of him is forbidden Deut. 4. 12. As Antisthenes also said He is not seen with eyes he is not like to any thing neither can be known by an Imageâ—… and Philo It is profane to exhibite an Image by picture or sculpture of Him that is invisible and Plutarch renders this cause why Numa took away Images from the Temples Because God cannot be conceiv'd but by the mind alone In the third precept is understood the knowledge and care of human actions and thoughts too for this is the foundation of an oath For God is call'd a witness even of the heart and if one deceive arevenger too whereby both the Justice of God is signified and his power In the fourth is acknowledged the beginning of the world by God's Creation for the remembrance whereof the Sabbath was instituted of old and that with a singular kind of sanctimony above other rites For if one had sinned against other rites the punishment of the Law was arbitrary as about forbidden meats if against this 't was capital because the violation of the Sabbath by the institution conteined a denyal of the world's Creation by God And the world's being created by God tacitly declares his goodness and wisedom and eternity and power Now from these contemplative notions follow the active viz. That God is to be honour'd lov'd worshipped and obeyed Wherefore Aristotle said he that denyeth God is to be honour'd or Parents to be loved is not to be refuted with arguments but with stripes And elswhere That it is the duty of an honest man every where to honour God Moreover the verity of these notions which we call contemplative doubtless may be demonstrated even by arguments fetchâ—… from the nature of things amongst which that is of most force that sense assures us some things were made and the things made plainly lead us to something that was not made But because this reason and other the like are not apprehended by all men it is sufficient that from the beginning to this present in all parts of the world all men aâ—… very few excepted both of the simpler sort that would not deceive and of the wiser sort that would not be deceived have consented to these notions which consent in so great variety both of Laws and other opinions evidently shews the tradition propagated from the first men to us and never solidly refuted and this alone is enough to procure belief What we have set down afore concerning God agrees
Cicero likewise and Quintilian The lighter evil obteins the place of good when several evils are compar'd together CXVI How the Judgment in drawn either way BUt for the most part in doubtfull matters after some examination the mind sticks not in the midst but is drawn this way or that by Arguments taken from the matter it self or from the opinion a man hath of other men pronouncing sentence about it For here also is true that of Hesiod It is most excellent to be able to direct oneself next to follow the good direction of another Arguments from the matter are deduced from the causes effects and other adjuncts But to the right discerning of these there is need of some experience and skill they that have not this to conform their active judgment rightly must hear the Counsils of wise men For those things saith Aristotle are probable which seem so to all or to most or at least to wise men and to these again either all or most or the more excellent And this way of judging is most used by Kings who have not leisure themselves to enter into the depth of learning The company of wise men brings Learning and Wisedom unto Kings Aristides saith As in questions of fact that is accounted for truth which is supported by most and most sufficient witnesses so those sentences are to be followed which are grounded upon most and most worthy authorities Thus the old Romans entred into war not without consulting the College of the Feciales instituted for that end nor the Christian Emperours scarce ever without advising with the Bishops that if any thing did hinder in point of Religion they might be admonisht of it CXVIII In doubtful cases the safer way is to be taken Three ways to avoid a doubtfull war NOw it may fall out in many Controversies that on either side probable arguments may shew themselves whether intrinsecal to the matter or from authority In this case if the matter be of smal moment the choice which way soever it be seemeth to be free from fault But if it be a weighty question as concerning the life and death of a man here because of the great difference between the things to be chosen the safer way is to be preferred Therefore it is better to acquit the guilty than condemn the innocent The writer of the problems that bear the name of Aristotle saith so and addes the reason which we have already given For where one doubts he must chuse that part wherein the offense is less War is a thing of the greatest consequence from which very many evils are wont to follow even upon the innocent wherefore when judgments differ we must incline to peace And three ways there be to keep Controversies from breaking forth into war The first is Conference Being there are two kinds of discipation saith Cicero one by conference the other by force and that is proper to man this to beasts we must fly to the later if we cannot use the former Phaneas in Livy saith To avoid a necessity of war men do willingly remit many things which cannot be forced from them by arms Mardonius in Herodot us blames the Grecians in this respect Who being of one language should have determined their Controversies by Commissioners and not by battell Coriolanus in Halicarnessensis If one desire not anothers but seek his own and upon denial make war all men confess it to be just In the same Halicarnessensis King Tullus Arms must decide what words are not able to compose Vologeses in Tacitus I had rather preserve my Ancestors possessions by equity than blood by a fair tryall than by force And King Theodoricus Then only is it profitable to go to war when Justice can find no place among our Adversaries Another way to avoid war among them that have no common Judge is Compromise It is not lawful saith Thucydides to invade him as injurious who is ready to submit to an Arbitrator So concerning the Kingdom of Argos Adrastus and Amphiaraus made Eriphyles their Judge as Diodorus relates Concerning Salamis three Lacedaemonians were chosen judges between the Athenians and Megareans In the now-cited Thucydides the Corcyreans signify to the Corinthians their readiness to debate their quarels before the cities of Peloponnesus which they should agree upon And Pericles is commended by Aristides for his willingness to have differences arbitrated that war might be avoided And Philip of Macedon is praised by Isocrates for that he was ready to permit the Controversies he had with the Athenians to the arbitration of any impartial City Plutarch saith this was the principal office of the Feciales among the Romans not to suffer things to come to a war till all hope of obteining a quiet end was lost Strabo of the Druids of Gallia They were of old arbitrators between enemies and often pacified them when they were entring into battell The Priests in Iberia performed the same office as the same Author testifies Now Christian Kings and Commonwealths are most of all bound to take this course to avoid war for if to avoid the sentences of Judges that were aliens from true Religion certain Arbitrators were constituted both by Jews and Christians and that is given in precept by Paul how much more is the same to be done that war which is a far greater incommodity may be avoided So Tertullian somewhere argues that a Christian must not follow the wars to whom it is not lawful so much as to go to Law Which yet must be understood according to what we have said elswhere with some temperament And both for this and for other causes it were profitable yea in some sort necesary to be done that some Assemblies of Christian powers were held where the controversies of others might be determined by Judges that are unconcerned yea and a course taken to compell the parties to entertain peace upon equal termes which use also was made of the Druids among the Galls as Diodorâ—… and Strabo have delivered And we read the French Kings about division of the Realm permitted the judgment to their peers The third way is by Lot which is to this purpose commended by Duâ—… Chrysostom in his second Oration against Fortune and long before him by Salomen Prov. 18. 18. Somewhat neer to Lot is Single Combat the use whereof seems not altogether to be refused if two whose Controversies otherwise would involve whole multitudes in very great mischiefs be ready to sight one with the other For it seems if not rightly to be done by them nevertheless acceptable to the people on both sides as a less evil Metiâ—… in Livy speaks to Tullus after this manner Let us take some way whereby without much slaughter and blood of boâ—…h parts it may be determined which people shal be superiour Strabo saith this was the old custom of the Grecians and Aeneas in Virgil saith
the persons only but the goods of the Inhabitants are commendably and according to the pious prescript of the Canons spared at least under tribute and under the like tribute is wont also to be granted unto wares immunity from war LIII A Temperament about Captives WHere Captivity of men and Servitude is in use if we respect internal justice 't is to be limited first after the likeness of things viz. that such acquist may be lawful so far as the quantitity of the debt either primary or secondary doth admit except perhaps in men themselves be some peculiar fault which equity will bear to be punisht with the loss of liberty Hitherto then and no farther He that wageth a just war hath a right over his enemies subjects being taken and doth validly transfer it upon others But it will be the part of equity and goodness here also to apply those differences which were noted above when we spake of killing Demosthenes in his Epistle for the Children of Lycurgus praiseth Philip of Macedon that he haâ—… not made all that had been among his enemies to be servants For saith he he did not think it meet to deal with 〈◊〉 alike but judged of every one according to his merit But first we must note the right which springs as 't were from suretyship for a City is not so large as that which springs from a fault against them who are made servants by way of punishment Whence a Spartan said He was a Captive not a Servant For if we look rightly into the matter this general right over Captives in a just war is like to that right which Masters have over them who being compeld by poverty have sold themselves into servitude except that their calamity is the more to be pityed who come not into that condition by any special fact of their own but by the fault of Governours 'T is a most sad thing saith Isocrates to be made a prisoner of War This servitude then is a perpetual obligation to work for maintenance likewise perpetual Chrysippus his definition is very fit for this kind of servants A servant is a perpetual mercenary And him who hath sold himself being compeld by poverty the Hebrew Law plainly compares to a mercenary and in his redemption it will have his work so profit him as fruits received of a field sold should profac the old possessor Much difference therfore there is 'twixt what is done impunely against a servant by the Law of Nations and what natural reason suffers to be done That of Philemon tendeth to this He that is born a man although He serve is stil a man I trow Seneca They are servants yea Men they are servants yea our Compauions they are servants yea our friends they are servants yea our fellow-servants Which also you may read in Macrobius agreeing in sense with that of S. Paul Masters give unto your servants that which is just and equal knowing that ye also have a Master in Heaven And in another place he would have Masters forbear threatning upon the same argument knowing that their Master also is in heaven who regardeth not such differences of qualities In the Constitutions ascribed to Clemens Romanus we read Thou shalt not be imperious over thy man-servant or thy maid-servant in bitterness of mind Clemens Alexandrinus would have us use our servants as our other selves seeing they are men as well as we following the sentence of the Hebrew wise-man If thou hast a servant use him as a brother for he is such a one as thy self The right therefore which is called of life and death over a servant gives the Master a domestick Jurisdiction but such as must be exercised with the same religious care as the publick is exercised This was Seneca's meaning when he said In a bondman is to be considered not how much may be inflicted on him impunely but how much equity permits which commands us to spare even Caprives and those whom â—…e have bought with money And again What matter is it under what command one is if it be the highest Where he compares a subject to a servant and saith under a divers title the same is lawful over them which in respect of taking away the life and of what is pertaining to it is most true Our Ancestors saith the same Seneca judged our House to be a little Commonwealth and Pliny The house is unto servants a certain Common-wealth and as it were a City Cato Censorius as Plutarch relates if any servant seemed to have committed a capital crime did not punish him till after he was condemned by the judgment also of his fellow-servants Wherewith may be compar'd the words of Job 31. 13. c. About the lesser punishments too namely stripes and beating of servants equity yea and clemency is to be used Thou shalt not oppress him thou shalt not rule hardly over him saith the Divine Law of an Hebrew servant which the force of neighbourhood being now enlarged ought 〈◊〉 be extended to all servants Deut. 15. 17 45 53. Upon which place Philo Servants are indeed inferior in fortune but in â—…ature equal to their Masters now to the Divine Law that is the rule of justice â—…ot which agrees to fortune but to nature Therefore it becomes not Masters to use their power over servants frowardly nor to make it matter for their pride and insolence and cruelty For these are signes of an ill disposed and tyrannical mind Seneca what is more foolish than to be furious against men and yet use dogs and horses gently Hence in the Hebrew Law to a servant man or maid not for an eye only but a tooth injuriously struck out liberty was due Moreover work is to be exacted of them moderately and a human respect is to be had to the health of servants Which very thing beside other the Hebrew Law provides for in the institution of the Sabbath viz. that some breathing space might be allowed Labourers Seneca observes in the word Paterfamilias the humanity of the antients Do you not see how our Elders have taken off all envy from Masters all contumely from servants They named the Master the Father of the family the servant familiars The like piety hath Servius noted in they word pueri Children by which they signified servants For thâ—… work as we have said maintenance iâ—… due to servants Cato Provide well for the family cloaths against cold food agâ—… hunger There is somewhat saith Sâ—…aeca which a Master ought to afford his servant as food and apparoll The cruelty of the Sicilians who famished the Athenian Captives is condemn'd by the historians Farther Seneca in the same place proves a servant is free in some respect and has wherewith to do a benefit if he hath done what exceeds the measure of servile duty what is done not upon command but voluntarily where service
And besides there is one thing more which may be feared most the Boldness of desperate men like unto the fiercest biting of dying beasts But if both Parties seem to themselves equal that indeed in Casaâ—… judgment is the best time to treat 〈◊〉 peace 〈◊〉 est they have Both some confidence in their own strength And wheâ—… Peace is made on whatsoever terms it is by all means to be preserved by reason 〈◊〉 that sanctimony of Faith aforesaid and with all care must be avoided not only perfidiousness but also whatever exaspâ—… rates the mind For what Cicero said 〈◊〉 private you may apply as well to theâ—… publick friendships As they are all to 〈◊〉 maintained with exact fidelity and Reâ—…gion so those especially which after câ—…mities are made up again and restored GOd who alone can do it inscribe these things in their hearts who have the Affairs of Christendom in their hands and grant them a Mind intelligent of Divine and Human Right and ever remembring that she is elected by God to govern man a creature most dear unto himself THE END OUT OF THE LIFE OF S. LUDOVIC HIS CHARGE To his Son IF any Controversy or action be rais'd against thee inquire into the Truth as well on the contrary part as on thy side If thou hast any thing of anothers taken by thy self or by thy Ancestors Restore it quickly Wage no War against any Christian but by the Counsel of Many and when War is unavoidable And in War do no hurt to Church-men and those that have done thee no wrong If Seditions rise among thy subjects quiet them as soon as thou canst See often what thy Officers do and examin their ways and reform what is amiss Let no soul sin reign within thy Kingdom Out of the same King's life written by Joinvil chap. 89. THe King 's great Counsellors reprehended him oft for taking so much pains to make peace among his neighbours saying He did ill to end their wars which would be for his Advantage The King answerd You say not well For if my neighbouring Princes did see me cheriâ—… their Wars they would say I had a pâ—… upon them and hate me and take a time to do me and my Kingdom a mischief Moreover I should provoks the wrath of God against me who blesseth the Peace-makers Certain it is the Burgundians and Lorainers perceiving the Kings Goodness and Justice were so loving and observant of him that they referred theiâ—… differences to his Arbitration I have often seen them come to him for that purpose to Paris and other places wheâ—… the King was resident MEMORIALS OF THE LIFE AND DEATH OF H. GROTIUS LONDON Printed by T. Warren for W. Lee And are to be sold at his shop at the sign of the Turks-head in Fleetstreet 1654. Memorials of the Authors Life and Death He that hath survâ—…yed with a judicious eye the various choyce Learning conteined in this Book cannot but desire to know more of the Author than what the Title shews him That He was The Illustrious Hugo Grotius Men are naturally apt to enquire as He observes and to know as much as they can can of the person whose Actions or writings have any way drawn their attention Who is this man that hath written such things To write the life of this Man perfectly were an enterprize for one more versed both in Books and Men For Me it will be enough to collect out of the Authors own Writings And indeed to describe Grotius who is so able as Grotius and of some of his friends what may represent in some sort so excellent a person to my Readers view and conduce to the perpetuating of his happy Memory among us Englishmen to whom he bare a special Affection And first we will represent that summary of his first years which we find in Meursius 's Athenae Batavae to this effect Hugo Grotius was born at Delf in Holland 4. eid April Anno 1583. He was of an Antient and Noble House His Grandfather of the same name was learned above the model of those darker times and well skild in the three principal Languages Latin Greek and Hebrew His Uncle Cornelius Grotius was professor of the Civil Law at Leyden where he flourished in the good esteem and favour of the best men His Father was Joannes Grotius Curator of that University whose Poems are extant with Lipsius Letters to him and Dousa's verses whose name also hath adorned many learned Mens Books dedicated to Him Being blest with this Hopeful son he used all pains and care in his good education and cherished this great Wit so well that when he was but eight years old viz. Anno 1591. He did fundere versus make verses ex tempore and disputed twice publickly in questions of Philosophy Anno 1598. aet 15. He travelled into France in the train of that incomparable person Joannes Oldenbarneveldius Embassador from the States to the Great Henry and returned honour'd with Royal Bounty and the Friendship of Illustrious Men having before that time begun to set forth notes upon the seven Liberal Arts of Martianus Capella When he had after studied some years at Leyden much endeared unto Scaliger his Father fearing the yong Scholars mind should by the Amenity and delight of human literature and Poesy be drawn away from more profitable employment he was taken off and ascribed among the Advocates at the Hague Anno 1599. and soon after pleaded Causes Yet did not he addict himself so much to that profession but that his Genius led him back and made him often revisit his former studies of Humanity For which he was most dear to the French Embassador Buzanvall to Janus Dousa the Father and many other Persons of Honour About this time the States of Holland began to use his service in penning the History of the most famous War in the whole world Afterward Anno 1607. Commended by the Suffrages of the Courts nominated by the States and elected by the most potent Prince the Admiration of all other Princes Grave Maurice he became Fisci Advocatus Advocate of the Treasury and behaved himself so well in this most weighty office that he received from his superiours a most ample testimony of his diligence and integrity Here perceiving the Trade into India of great Importance to his Countrey that he might stir up the spirits of his Countrymen thereto he wrote a Book De jure Commercii Indicani Again observing after the Truce with the Spaniard the peace of the Common-wealth began to be disturbed by certain dangerous Innovators judging it to be the Duty of a good Patriot to oppose himself against their Designs and to commend unto All the present State he set out a Dissertation entituled De Antiquitate Reipublicae Bataviae After the death of Elias Olden Barneveldius a man not less Noble for his good parts than his family Our Grotius sufferd himself to be chosen into his place Syndic of
turn themselves amidst our so great discords do groan under the Popes Tyrannie would provide for the liberty of their Consciences I will pronounce nothing of the Papists of other Countryes but of my Countrymen of France I think I may truly say the best of them do wait for the day of the Lord and from their souls detest the maintainers of empty superstitions and of Papal Tyrannie I say more and I say it upon good ground If in our France Reformation had been carried on without so much varying from the form of the Antient Church many thousands more now most a verse from the Doctrine of our Churches had been converted When I have said thus to our Ministers in France I found but few who preferred not their own preciseness before gentle and moderate counsels Here far otherwise minded are both the King and every most learned man of the English Clergy Many of the Bishops in this Kingdome men excelling in learning and piety I have found who day and night study the same thing with you and give themselves continually to the same Cogitations And I doubt not if a beginning were made or if any occasion did arise of effecting that of which you have most prudently written both his most excellent Majestie and the whole Church of England and especially the most reverend Bishops would try all things to promote so good a work His Majestie commanded me to let you understand so much requesting you to continue in the same mind and to communicate your counsels to us Being in England our Grotius persisted in his endeavours of Reconciliation and presented to the learned Dean of St. Pauls Dr. Overal a little Tract of late published entituled Conciliatio dissidentium de re praedestinarâ—… gratia opinionum which the Deâ—… having perused roturns with this judgement upon it Remitto ad Te c. I return to you your Conciliation which is very much approv'd by me but I fear you will not approve it to your Antagonists especially the more rigid Sectators of Calvin's way That Zenonian Sect will hardly yield to moderate sentences in these matters but will tooth and nail adhere unto that fatal doctrine of Predestination in the pure mass or at least in the corrupt the Reprobates that is All men besides their absolutely Elect being excluded from the Redemption of Christ and from sufficient Grace in the intention of God and of Christ. After his return into Holland he prosecuted his Consultation for Peace by Letters to his friends in England and sent over a Copy of the Decree of the States for the ending of those Disputes as appears in another Epistle of Casaubon's 1614. Yours to Dr. Overal I will deliver him my self this day and ask his counsel about your Business He is now not Dean of St. Pauls but Bishop of Lichfield which preferment was conferr'd on him by the most gracious King a month since But such Accidents befall men this Accession of honour was made the less joyfull to him by the Stone or some like disease wherewith he was taken that very day whereon he obtain'd his place I will prevail with him to write you an Answer or if I cannot I will fully declare unto you his opinion The Edict of the most illustrious States I read so soon as I had opened your Packet and noted therein one or two expressions which I would have wished a little otherwise conceived But I will expect the judgement of others and then I will diligently write unto you both my own and their Observations In the mean I cannot sufficiently praise the Design of the most illustrious States in putting a restraint upon curious Heads by this Edict The Lord bless their work I have long been perswaded that the immoderate desire of men to peirce into the secret Counsels of God beyond what the eternal Wisdome hath revealed to us in Scripture is one of the most grievous Evils of our Time The antient Church firmly believ'd there are many mysteries in Christian Religion of which it is better to be silent especially among the Common People than to dispute subtilly I have written much of that opinion of the Antients when I expounded why the Sacraments are called Mysteries Which Argument when I handled and thought upon the modern Controversies I could not forbear to say somewhat of the matter See if you please the beginning of the 564. page The Book now cited by Casaubon is his Exercitations against Baronjus Lond. 1614. upon which Work hâ—… follow Grotius 's Verses which I set dâ—… for the better demonstration of that moderate way these great Scholars followed in the business of Religion wishing thâ—… example may help to reduce others fâ—… extravagancies Annales docti nimium servire Baron Qui legis c. Thus in English The Annals of the great Baronius Approv'd at Rome too too obsequous Believe not rashly The Laborice Book Was over-aw'd by an Imperious looâ—… Errours cloakt under purple Robeâ—… No hope This long time that plain True should please the Pope O Piety where art where is the Mâ—… So valiant against this Age that can Defend thy Cause when Schism aâ—… Faction Passions and Lusts reign o'r Religion Some to impose one as the Head of All To raise Him up consider not who fall Reverehd Antiquity without her choyce Is forc'd against her self to give her voyce Kings to deprive both of their Life and Crown For private Interest to throw Justice down New falshood to commend with an old Name This is the way to Riches and to Fame Some others too guilty of Innovation Call this a free and a pure Reformation To these received Rites displeasing are Lest that to Rome they should approach too near Thus Piety afflicted and long hid Which alwaies to speak Falshood doth forbid And sometimes to conceal Truth weeping past From place to place to find some aid at last Other hands failing Casaubon divine She was not dis-appointed seeking thine I have no wealth to give not the Red Hat Alas said she my Enemies have that Yet have I great Rewards Good Conscience Gratefull Posterity Gods Beneficence Thou heardst and fearâ—…dst not this evil Age That Wars against Peace with perpetual Rage Hence Athenoeus and Polybius now Those Glorious and younger Works which thou Hast wrought and let thy Strabo yield his place And all thy Sons of Roman or Greek race One more Heroick comes The former were Labours of Learning Piety is here Near the same time he wrote an Epistle to Joannes Hotmannus Vellerius which because it touches Concord and the Decree above mention'd may fitly be added in this place I received by the hand of the Right Honourable the French Embassadour your worthy Present viz. Books of excellent Men written on behalf of the best thing yet most despair'd of the peace of divided Christianity To speak my opinion briesly I think if Luther had had the mind of Melancthon and the Patriarch of the West
of Justice O Just peaceable King Crown your Majesty neerest to His as with all other happiness so with this also the procuring of a Just Universal Peace 1625. THE PREFACE OF THE AUTHOR THE Civil Law whether Roman or that which is proper to any other Countrey many Writers have attempted either to illustrate with Commentaries or in a more compendious way to propose unto their Readers But that Law which is between many Nations or their Rulers whether proceeding from Nature it self or constituted by divine precepts or introduced by customs and tacit agreement Few have touched None have hitherto handled universally and in a certain order when yet the Doing hereof is of much Concernment to Mankind For Cicero truly call'd this an excellent Science in Leagues Covenants and Agreements of several people Kings and forein Nations and in all Rights of War and Peace Euripides also prefers this science before the knowledge of divine and humane things 1. This Work is the more necessary because both in our age there are and in former times there have been some who so contemned this part of Right and Law as if it were onely an empty word and had no real existence That saying of Euphemus in Thucydides is almost in all mens mouths That nothing is unjust which is profitable to a King or Common-wealth having power Whereto that is like In the highest Fortune that is more right which is more prevalent And A Common-wealth cannot be govern'd without injury Adde hereunto that Controversies arising between Nations or Kings commonly have no arbitration but are determined by force Now this is not onely the opinion of the Vulgar that War is very far distant from all right and equity but even learned and prudent men do often let fall words favourable to that opinion For nothing is more frequent than Right and Arms opposed one to aother Old Antigonus derided one that presented to him a Commentary of Justice when he was assaulting Cities And Marius said He could not hear the Laws for the clashing of Armour That very Pompey of so bashfull a Countenance was bold to say What would you have me think on Laws now I am armed In Christian Writers many sayings of the like sense occur One of Tertullians may suffice instead of all Deceit rigour injustice are the proper businesses of wars All that are of this mind will no doubt object against us that in the Comedy These uncertain things if you seek to order by certain Reason you do but endeavour to be mad with Reason Wherefore seeing in vain is any Disputation of Right if there be no such thing it will pertain to the commendation and defence of our work that this very great Errour should briefly be refelled Now that we may not have to do with the Multitude let us allow them an Advocate and whom rather than Carneades who had attained to that which was the height of his Academy that he could put forth the strength of his Eloquence for Errour no less than Truth He therefore when he had undertaken to oppose Justice that especially of which we treat found no stronger Argument than this That Men had established for themselves various Laws with respect to their Utility according to their Customs and among the same Men often changed with the times That there is no natural Right or Law But that all Men and other living Creatures are carried by the guiaance of Nature to things profitable for them Wherefore there is no Justice or if there be any it is extreme Folly because it hurteth it self taking care for the benefit of others But what the Philosopher saith here and the Poet followeth That Nature cannot make any difference 'twixt right and wrong must not be admitted For Man indeed is an Animal but excelling all the rest and differing farther from them than they do from one another Which is confirmed by many Actions proper to Mankind And among these things that are proper to Man is the Appetite of Society that is of Community not of any sort but Quiet and according to the measure of his understanding Orderly with those of his own kind which the Stoicks call'd 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 What is objected then that every living Creature is by nature carried onely to its own profit so universally taken ought not to be granted For even some of the meer Animals in some sort restrain the desire of their own profit with a respect partly of their Issue partly of others of their own kind Which in them truly we think proceeds from some external intelligent principle because in other actions not more difficult than the former they do not discover such intelligence in themselves And the same is to be said of Infants in whom before all Discipline there shews it self a certain propension to do good to others prudently observ'd by Plutarch as also in that Age Compassion breaketh forth of its own accord But in a Man of perfect Age knowing to do like things in the like manner with an exceeding appetite of Society having Speech the peculiar instrument thereof as his priviledge above all other Creatures we must conceive there is an Ability of Understanding and Working according to general precepts and the things agreeable thereto belong not now to all living Creatures but are peculiar to humane nature Now this custody of Society which we have thus rudely expressed convenient to humane Understanding is the fountain of that Law which is properly called by such a name to which pertains Abstinence from that which is Anothers and if we have any thing of that sort or have gained by it Restitution Obligation to fulfill promises Reparation of Damage unjustly done and the Merit of Punishment amongst Men. From this signification of Law is derived another more large for because Man above other Animals hath not onely that social virtue which we mention'd but also judgement to discern what things delight or hurt not present onely but future and what things can lead to either it is convenient to humane nature according to the measure of humane understanding in these things also to follow a rectified judgement and neither to be corrupted with fear or the allurement of present pleasure nor to be transported with any impetuous rashness And that which is plainly repugnant to such a judgement is also conceiv'd to be against the Law of Nature to wit humane What we have now said would have some place though we should grant which cannot be granted without the highest sin That there is no God or That he hath no Care of humane Affairs the contrary whereof being implanted in us partly by Reason partly by perpetual Tradition and confirmed by many Arguments and Miracles testified in all Ages it follows that we must without exception obey God as our Maker to whom we owe our selves and all we have especially seeing he hath many waies declared his infinite
which foâ—…bids a Theif by day to be slain this exception added unless he defend himself with a weapon Therefore against a Theif by night it is presumed that with a weapon he defended himself And by a weapon is understood a sword a club a stone as Caius noteth upon this very Law Bâ—…t Ulpian hath declared that what is said of the Theif by night If one kil him he shal go unpunished is to be conceived to have place if he could not spare his life without peril of his own to wit in saving of his goods There is then as I have said a presumption on his side who hath slain a theif by night but if haply witnesses were present by whom it is evident the slayer of the theif was not brought into danger of his life then will that presumption cease and so the slayer will be guilty of Homicide Add that as well by day as by night the Law of the XII Tables requir'd that he that found the theif should testify so much by an out-cry as we learn out of Caius to the end if it might be the officers or neighbours might run thither to bring help and to bear witness Now because such a concourse is more easily made by day than by night as Ulpian notes upon the forecited place of Demosthenes therefore is more easy credit given to him that affirms he was in danger in the night time In like manner the Hebrew Law allowes a maid credit concerning a rape in the field and not in the town because here she might and ought to have cryed out and called aid Moreover although in other respects there were no difference yet this is considerable that the things that happen in the night are more obscure and cannot be so well known what and how great they are and therefore are more terrible The Law therefore both Hebrew and Roman gave in precept to the people that which Charity perswades that they kill no man for this reason onely because he stealeth goods but in case he that desires to save them comes himself into danger Moses Maimonides hath noted that the killing of another is not permitted to any man on other terms than to preserve that which is irreparable as life and Chastity X. Whether and how far it is permitted by the Evangelicall Law ANd what shall we say now of the Evangelicall Law that the same is permitted by it which is permitted by the Law of Moses or that as in other things it is more perfect than the Law of Moses so here also it requireth of us more I doubt not but it requireth more For if Christ commandeth to lose a coat or cloak and Paul would have us suffer damage rather than go to law which is a contention without bloud how much more would he that even things of greater moment be lost rather than we should kill a man the image of God and of the same flesh and bloud with us Wherfore if our things may be saved so that there seem not to be any danger of making slaughter well otherwise we must suffer losse unless haply it be such a thing upon which our life and of our family depends and which cannot be recoverd in judgment haply because the Theif is unknown and there is some hope to carry the matter without slaughter And although almost all as well Lawyers as Divines do now teach that a man may be rightly slain by us in defense of our goods even beyond those bounds wherein the Law of Moses and the Roman permit as if a thief having taken the thing fly yet do not we doubt but that which we have set down was the judgment of the antient Christians nor did Austin doubt whose words are these How are they free from sin before God who for these things which are contemptible are polluted with human blood No wonder if in this matter as in many other Discipline became looser with the time and by degrees the Interpretation of the Evangelical Law began to be accommodated to the manners of the Age. Of old the form of the primitive Institution was wont to be retained among the Clergy at length to these also censure was remitted upon the same ground XI Whether the Civil Law permitting one to kill another in his own defense give a right or only impunity AQuestion is here propos'd by some Whether the Law at least the Civil as having right of life and death in what case it permitteth a thief to be killed by a private person doth also exempt the person from all fault I conceive that is not to be granted For first the Law hath not right of death over all the Citizens upon every transgression but upon a transgression so grievous that it deferrâ—… death And it is a very probable opinioâ—… of Scotus that 't is not just to condemn any one to death unless it be for those transgressions which were punished wiâ—… death by the Law given by Moses thâ—…s onely added or which are equal to those in a right estimation And indeed knowledge of divine will which alone quieti the mind seems not possible to be had elswhere in this business but out of that law which surely appointeth not pain of death for a thief Moreover also the Law neither ought nor is wont to give a right privately to kill even those that have deserved death except in crimes very hainous otherwise in vain were the Authority of Courts of judgment ordained Wherefore if at any time the law saith a thief may be killd without danger of punishment it is to be supposed to take away the penalty not to grant a right XII When a single combat may be lawfull IT appears by what we have said that two ways it may come to pass that a single combat may be undertaken by private persons without sin First if the Invader grant the other license to fight and and will kill him unless he will fight Secondly if a King or Magistrat oppose two that have both deserved death one against the other in which case it will be lawful for them to lay hold on some hope of life but he that appoints the Duel will seem to have not so well done his duty sith it were better if the punishment of one seem to be sufficient to choose by Lot the party that should dy XIII Of defense in publick War WHat hath been said by us hitherto concerning the right of defending ones self and his goods perteâ—…eth most to privat War yet so that it may be applyed to publick regard being had to the diversity For in private war the right is as it were momentaneous and ceaseth so soon as the matter admits of an access unto the Judge but publick because it ariseth not but where Courts of Justice either are not or not exercised hath a continued tract and is perpetually cherished by addition of new damages and injuries Farther in private war
mere defence for the most part is considered but publick powers together with defense have also a right of revenging Whence it is that they may lawfully prevent force that is not present but seems impending afar off not directly that we have shewed above to be injust but indirectly by revenging a wrong begun already but not consummate Of which elswhere XIV It is not lawful to take arms to diminish a Neighbor's power THat is in no wise to be allowed which some have deliver'd that by the Law of Nations arms may be rightly taken to abate a growing power which being encreased might be able to do hurt I confess in consultation about war this is wont also to come in not under the respect of just but of profitable that if the war be just upon some other ground upon this it may be judged prudently undertaken Nor do the Authors cited here say any more But that a possibility of suffering force should give a right of offring force this is far from all equity So is the life of man that full security is never in our hand Against uncertain fears we must guard our selves by meditation of divine providence and by harmless caution not by doing violence to our neighbours XV. Defensive war also is unjust on his part who gave just cause of War AS little are we pleasd with this which they teach that also their defense is just who have deserved the war because forsooth few are content to return only so much revenge as they have received injury For that fear of an uncertain thing cannot give a right to use force whence neither hath a person accused of a crime any right to resist by force the publick officers willing to apprehend him for fear lest he may be punisht more than he deserves But he that hath offended another ought first to offer the offended party satisfaction according to the arbitration of an upright man and then afterward his arms will be lawfull So Ezechias when he had not kept the league which his Ancestors had made with the King of Assyria being set upon by a war confesseth the fault and submits himself to a mulct at the Kings pleasure Having done that and being after that again provoked by war encouraged by a good conscience he withstood the enemies force and his cause was supported by the favour of God Pontius Samnis after restitution made to the Romans and the Author of the breach yeelded up we have saith he expiated our fault and pacified the wrath of heaven that was against us for our violation of the league I know full well what Gods soever were pleasd we should be subdued to a necessity of restitution the same Gods are displeasd with the Romans for their proud contempt of our expiation of the breach A little after What more do I owe to thee O Roman What to the league what to the Gods the Judges of the league Whom shall I bring unto thee to be judge of thy anger and of my punishment I refuse to people nor private man So when the Thebans had offerd all right to the Lacedemonians and they required more the good cause passed over from these to them saith Aristides XVI The rise and progress of propriety THere follows among the Causes of war Injury done and first against that which is ours A thing is ours either by a common or by a proper right For the better understanding whereof we must know the Rise and beginning of propriety which the Lawyers call dominion God bestowed on mankind in general a right over the things of this inferiour nature presently after the creation and again upon the reparation of the world after the floud All things as Justin speaks were undivided common to all as if all had one patrimony Hence it was that presently every man might take unto his uses what he pleased and spend what might be spent Which use of the universal right was then instead of propriety For what any one had so taken another could not without injury take away from him This may be understood by that similitude which is in Cicero A theater is common yet the place possessed by any one may be rightly call'd his own Nor was it impossible for that state to have continued if either men had persisted in a certain great simplicity or had liv'd together in a certain mutual excellent charity One of these to wit Communion by reason of an exceeding simplicity may be observed in some people of America who through many Ages without any incommodity have persisted in that custome The other to wit communion of Charity the Essens practised of old and then the Christians who were first at Hierusalem and now also not a few that lead an ascetick life The simplicity wherein the first parents of mandkind were created was demonstrated by their nakedness There was in them rather an ignorance of vice than the knowledge of vertue as Trogus saith of the Scythians The most antient of mortals saith Tacitus lived without any evill lust without dishonesty and witkedness and so without punishment and coercion And in Macrobius First there was amongst men simplicity ignorant of evil and as yet void of craft This simplicity seemes to be called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 by the Hebrew wise man by the Apostle Paul 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which he opposeth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to craftiness Their only busines was the worship of God whereof the Symbole was the tree of life as the antient Hebrews do expound and the Apocalyps assenteth And they lived easily of those things which the earth of her own accord brought forth without labour But in this simple and innocent way of life Men persisted not but applyed their minds to various arts whereof the Symbole was the tree of the knowledge of good and evill that is of those things which may be used both well and ill In regard of this Solomon saith God created man right that is simple but they have found out many inventions Dion Prusaeensis in his 6. Oration To the posterity of the first men their crafâ—…iness and various inventions were not very conducible for they used their wit not so much for valour and justice as for pleasure The most antient Arts Agriculture and Pasture appeared in the first Brothers not without some distribution of estates From the diversity of their courses arose emulation and then slaughter and at length when the good were infected by the conversation of the bad a gigantick kind of life that is violent such as theirs whom the Greeks call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 The world being washed by the floud in stead of that fierce life succeeded the desire of pleasure whereunto wine was subservient and thence arose unlawfull loves But concord was chiefly broken by that